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International Union of Electrical v. General Electric Co.

decided: November 16, 1971.


Friendly, Chief Judge, Clark, Associate Justice,*fn* and Kaufman, Circuit Judge.

Author: Kaufman


The International Union of Electrical, Radio and Machine Workers brought suit in the Southern District of New York pursuant to Section 301 of the Labor-Management Relations Act, 29 U.S.C. ยง 185, seeking to compel arbitration of fifty-two grievances under the 1963-1966 and 1966-1969 collective bargaining agreements with General Electric Company.*fn1 After the parties disposed of thirteen of the grievances by stipulation, Judge Cooper, upon the Union's motion for summary judgment, directed arbitration of thirty-seven grievances and denied arbitration of two. 322 F. Supp. 911 (S.D.N.Y. 1971). The Union has appealed from that part of Judge Cooper's order denying arbitration, and General Electric has cross-appealed with respect to nine grievances. We affirm Judge Cooper's order.

In 1968 this Court came to grips with a similar suit between these two parties based primarily on the 1963-1966 collective bargaining agreement. International Union of Electrical, Radio and Machine Workers v. General Electric Co., 407 F.2d 253 (2d Cir. 1968), cert. denied, 395 U.S. 904, 89 S. Ct. 1742, 23 L. Ed. 2d 217 (1969). [Hereinafter "1968 Case"]. Prior to 1963, the collective bargaining agreement between the Union and General Electric included the typical "standard" arbitration clause, which provided that all disputes involving "the interpretation or application of a provision of this Agreement" were subject to arbitration. See International Union of Electrical, Radio and Machine Workers v. General Electric Co., 332 F.2d 485, 488 (2d Cir.), cert. denied, 379 U.S. 928, 13 L. Ed. 2d 341, 85 S. Ct. 324 (1964). This arbitration clause was changed drastically in the wake of three Supreme Court decisions dubbed the Steelworkers trilogy. United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960). The trilogy instructed that the national labor policy favors arbitration of all labor disputes and, accordingly, that courts interpreting arbitration clauses of collective bargaining agreements should resolve all doubts in favor of arbitration.*fn2 The 1963-1966 agreement deliberately sought to avoid the implications of the trilogy presumption by sharply and narrowly defining disputes which were to be subject to compulsory arbitration.*fn3 This court was then called upon in the 1968 Case to apply the new "unusually complex contractual language" to six grievances within the framework of the trilogy. 1968 Case at 255.

Before we examine these contractual provisions and the principles enunciated in the 1968 Case as they apply to the grievances presented in this appeal, we are constrained to comment on the distressing history of litigation between these parties. We recognize the wisdom of their course when the parties sought a definitive judicial interpretation of their new and radically changed arbitration provisions in light of the Steelworkers trilogy. But, after having received a thorough and incisive interpretation in a painstaking opinion, the parties have returned soon again, now for an interpretation of the arbitration provisions as they relate to yet another set of individual grievances.

We are fully aware that federal courts cannot escape or evade sua sponte their statutory duty to referee disputes arising under collective bargaining agreements.*fn4 Moreover, we know that when appropriate, the availability of the courts is essential to labor peace and the strike-free operation of industry. But by continually and regularly falling back on the courts, these parties have largely abdicated their responsibilities to seek peaceful, voluntary resolution of their own problems and have thus abused the judicial process. We hesitate to consider the consequences if more employers and unions adopted the stringent contractual arbitration language involved here and then foisted on the federal courts, in these days of congested calendars, the responsibility for directing when and when not to arbitrate each time a dispute concerning one of thousands of employees survived the grievance machinery.

We suspect that the employer and the union may consider Section 301 litigation a necessary dose of medicine every time they fail to agree on arbitrability.*fn5 In the hope of thwarting any such thoughtless involvement of the federal courts, we want to make clear that we reaffirm the principles of the 1968 Case and that we shall apply those principles equally to all substantive provisions of the contract.

Since the 1968 Case describes the arbitration provisions at length, a brief statement of those provisions relevant for our purposes will suffice. Although Article XV, Section 1(a) states that any grievance which involves "the interpretation or application of a provision of this Agreement" may be submitted to arbitration, Article XV, Section 6(a) limits arbitration as a matter of right to disputes (in addition to disciplinary disputes and other disputes not relevant here) which involve "the claimed violation of a specific provision or provisions of the National Agreement." Section 6(b) goes on to provide that "[a] request for arbitration, in order to be subject to arbitration as a matter of right . . . must allege a direct violation of the express purpose of the contractual provision in question, rather than of an indirect or implied purpose."*fn6 Section 7 then enumerates specific types of disputes which are subject only to voluntary arbitration.

The basic holding of the 1968 Case,*fn7 as it applied to each dispute presented there, was summarized by Judge Feinberg in one sentence:

In each case we will ascertain whether the grievance involves a "claimed violation of a specific provision," as defined above and then determine whether any other provision of the Agreement, not yet discussed, specifically excludes it from arbitration. 1968 Case at 260.

We proceed to consider each grievance within this framework, but will treat each somewhat summarily as the principles alluded to have been fully developed in the 1968 Case.

N.D. 13671 -- Abnormal or Off-Standard Shifts

General Electric instituted "abnormal" or "off-standard" shifts on the annealing furnace operation at its Lynn facilities. Under this schedule an employee was required to work for six consecutive eight-hour days, after which he received two days off. The Union argues that this work schedule, which requires an employee to work a six- day, forty-eight hour week, violates Article V, Section 1(a) of the agreement.*fn8 That section, entitled " Workweek," provides:

The regular working week for both salaried and hourly rated employees shall be 40 hours per week, 8 hours per day, 5-day week, from Monday to Friday inclusive. The workweek on multiple shifts may be less than 40 hours.

The Company in response argues that Article V, entitled "Working Hours: Straight Time -- Overtime," relates only to the definition of the regular workweek for purposes of computing overtime pay and does not limit the right of management to assign overtime work. We agree with the district judge that this dispute is not arbitrable.

Judge Cooper determined that the "express purpose of Article V, Section 1(a) appears to be to define the workweek and the workday for over-time purposes" and that any limitation on management's right to assign overtime is an "implied obligation." Although there may be some basis for the Union's contention that the express purpose of Article V is broader than Judge Cooper stated,*fn9 we need not rely simply on Judge Cooper's interpretation of the purpose of the provision in upholding the order denying arbitration. Article XV, Section 6(b), after providing that a request for arbitration to be arbitrable as a matter of right "must allege a direct violation of the express purpose of the contractual provision in question," includes the following example:

For example, a request which claims incorrect application of the method of computing overtime pay under the provisions of Section 2 of Article V would be arbitrable as a matter of right, whereas a request which questioned the right of the Company to require the performance of reasonable overtime work, on the claimed ground that Article V contains an implied limitation of that right, would be subject only to voluntary arbitration.

In short, the parties themselves have clearly evidenced their understanding that a dispute of the type presented in this grievance is not subject to compulsory arbitration.

N.D. 12972 -- Seventh Day in Continuous Operations

Judge Cooper also decided that the dispute which involved the definition of the "seventh day" in continuous operations was not arbitrable. The contract provides that when an employee is assigned to a shift which is part of an operation conducted twenty-four hours a day, seven days a week, he is entitled to ...

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