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In re Arbitration Between Local Union No. 135 of United Rubber

decided: March 20, 1968.


Medina, Moore and Anderson, Circuit Judges. Moore, C. J. (concurring).

Author: Medina


Claiming that the Arbitrator had exceeded his powers as defined in a collective bargaining agreement, the Dunlop Tire and Rubber Corporation of Buffalo, New York, challenges on this appeal three arbitration awards, each of which has been confirmed by Judge Henderson. We hold that the awards were made in the exercise of the authority of the Arbitrator to pass upon questions relating to the "meaning, interpretation, scope, or application" of certain provisions of the agreement with Local 135 of the United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, and we affirm.

The collective bargaining agreement is a lengthy document of some 100 pages printed in small type. It is obviously intended to cover every conceivable sort of dispute or controversy likely to arise between the company and the union or any of the individual members of the union. There is ample internal evidence in the record before us to warrant the inference that William W. Waite, selected by mutual consent as the Arbitrator, was intimately familiar with the workings of the entire plant at Buffalo and also with the interrelation of the various terms of this intricate and comprehensive contract. It is also apparent that Mr. Waite performed his duties as Arbitrator with complete impartiality and dedication to the development and consideration of even the smallest details of the facts involved in the various disputes and to the interests of both the company and the union. The agreement contained a "no strike," "no lockout" and "non-liability" clause.

While the awards now challenged (Grievances 2, 42 and 43) were made in separate opinions after separate hearings, we shall treat the two opinions and the findings and discussion together as the second opinion contains relevant cross-references to the first opinion and, so far as concerns the awards in question, the subject matter is substantially the same. As we shall see, each of these disputes arose out of the decision by the company in 1964 "to expand and modernize the tread extrusion department in a program costing between one and two million dollars."

The pertinent provisions of the agreement relating to the handling of grievances are set forth in the footnote below.*fn1 Section 9.10 of the collective bargaining agreement, which lies at the center of the issues on this appeal, provides:

Section 9.10 -- Outside Contractors

(A) While in general, it is the policy and intent of the Company to have that work performed by its maintenance employees which they are able to handle, it is recognized by both parties that at various times, the Company may be required to allot to outside contractors work of a similar or identical nature as that performed by Company Maintenance employees. Such allotment of contracts shall be governed by the following:

(1) That the work project is of such size or nature as to make it impractical to be handled by the above mentioned employees in conjunction with their regular work assignments or

(2) That the work is of such urgency or short duration as to make it impractical to add additional men to the regular maintenance force.

The above is the stated policy of the Company.

(B) In furtherance of carrying out the intent of this policy, it is agreed that if it is necessary to have work done by contractors, the Union Division Chairman will be notified, verbally and in writing, and the matter will be discussed in order to reach a mutually satisfactory conclusion before an agreement is signed for this outside contract work.

In connection with the expansion and modernization of the tread extrusion department, seven grievances were before the Arbitrator for decision. We shall mention them in the order in which they were disposed of by the Arbitrator, as follows: (1) an alleged violation of Section 9.10 because the company contracted out the painting of the remodeled building, rather than allowing the regular maintenance force to do the job (Grievance 62); (2) the finishing of sixteen mill pipe supports, which was done in an outside shop (Grievance 68); (3) several electrical control boxes were moved temporarily while a new concrete block wall was built and new, larger boxes installed. Company employees made the move and made temporary connections. Later, the contractor's employees made permanent connections to the new boxes during a week-end shutdown of the plant (Grievance 1); (4) the company sold some obsolete equipment on an "as is and where is" basis. This equipment was still in the shop when the purchaser's employees entered the plant and removed it. The union interpreted this as a violation of Section 9.10 because Dunlop employees could have moved the machines to the yard to be picked up by the purchaser (Grievance 2); (5) the company had a number of truck tire carriers fabricated by an outside contractor instead of by company welders (Grievance 41); (6) the removal of a bridge crane in Department 214 by non-employees (Grievance 42); and (7) the removal of a spreading machine in Department 202 (Grievance 43).

In disposing of these Grievances the first thing the Arbitrator did was to decide that the underlying purpose of Section 9.10 was "to conserve available workloads for the company's regular employees, to avoid layoffs and short-timing, and to afford overtime earnings opportunities whenever possible." Thus he denied Grievance 62 relating to the painting of the entire remodelled building, because the job was so large that it would hardly have been legally or physically possible for the men to do the work in addition to their heavy regular workload, and even more impossible to do it within the time limits imposed by the schedule for the entire project. Grievance 68 was also denied because the rough castings had been sent to the plant by mistake. Several new mills were being installed and ordinarily the mill manufacturer buys rough castings from a supplier and finishes them in its own machine shop. Because the pipe supports were included in the price of the mills the company sent those in dispute to the mill manufacturer for machining. However, it was agreed that for replacements the company would buy only rough castings and machine them in the company's own shop. As the purpose ...

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