Consolidated appeals from an order compelling arbitration and a subsequent judgment confirming the arbitrator's award, in the United States District Court for the Eastern District of New York, Hon. Jacob Mishler, Chief Judge . Reversed in part, vacated in part, and remanded for further proceedings.
Before Van Graafeiland, Newman and Kearse, Circuit Judges.
These are consolidated appeals by Rochdale Village, Inc. ("Rochdale"), in two cases arising out of a labor dispute between Rochdale and Public Service Employees Union, Local No. 80, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the "Union"). Following a demand by the Union in January 1979 for arbitration of the dispute, Rochdale commenced suit in the Eastern District of New York for a stay of arbitration. Chief Judge Mishler denied Rochdale's motion for a preliminary injunction and granted the Union's cross-motion to compel arbitration. Rochdale appealed. Prior to the date scheduled for argument of the appeal, the arbitrator rendered his award and this Court granted a motion to postpone argument pending proceedings relating to the award.
The arbitrator ruled in favor of the Union, which brought suit in the Eastern District to confirm and enforce the award. Judge Mishler directed Rochdale to comply with the award, and Rochdale's appeal from that judgment was expedited and consolidated with its earlier appeal.
The fundamental dispute between the parties is whether Rochdale violated its collective bargaining agreement with the Union by subcontracting, commencing November 1, 1978, for certain services formerly provided by some of the Union's members. A threshold question in this dispute is whether the collective bargaining agreement terminated on October 31, 1978. Rochdale argues that the district court itself should have decided whether the agreement terminated on October 31, rather than referring that question to the arbitrator. For reasons that will appear, we find that certain questions relating to termination were not arbitrable, and reverse in part and remand for their determination by the district court.*fn1
Appellant Rochdale is a cooperative housing development in Queens, New York. The appellee Union represents 175 maintenance workers and 53 security workers employed by Rochdale who are currently on strike. Rochdale and the Union entered into a collective bargaining agreement, dated November 1, 1976, which contained the following duration clause (Article XXIV):
This agreement shall continue in effect until the 31st day of October 1978, and thereafter shall be automatically renewed for successive yearly periods unless written notice is given, by either party to the other, of its desire to modify, amend or terminate this Agreement. Such notice shall be given not more than seventy-five (75) days nor less than thirty (30) days prior to the expiration date of this agreement or of any annual extension thereof.
In Article III, Section 4 of the agreement, Rochdale agreed that no work of the type covered by the agreement would be subcontracted in whole or in part to any person not covered by the agreement. Other sections of the agreement prohibited strikes and lock-outs.
Article XX, Section 2 of the agreement provided that "(a)ny and all disputes hereunder shall be subject to binding arbitration, upon the request of either party hereto." There was no provision requiring that amendments or waivers of the agreement be in writing.
During the summer of 1978, the parties exchanged a series of letters concerning renegotiation of the agreement. The Union's first letter, dated June 8, contained fifteen "proposals for new contract." Its second letter, dated July 11, stated: "you are hereby notified that the collective bargaining contract now in effect between the Company and the Union shall terminate, in accordance with its provisions, on 10/31/78." Rochdale's first response, dated July 18, 1978, stated that Rochdale had "tentatively decided to discontinue its guard and security operations effective October 31, 1978 and to contract performance of these services to an outside vendor." There followed four more letters from Rochdale, dated August 7 through August 15, relating to Rochdale's own proposals to modify the agreement, including a letter dated August 8 addressed to the Federal Mediation and Conciliation Service, a copy of which was sent to the Union, stating that, "the subject collective bargaining agreement is to expire on October 31, 1978."
Negotiations commenced on August 2 and continued intermittently through October. Throughout it appears that the Union sought a new contract covering both security guards and maintenance employees, while Rochdale sought only maintenance services, preferring to subcontract for security services. During the pendency of the negotiations Rochdale advised the Union by letter dated October 3, 1978 that it had finalized its "decision to subcontract security services effective November 1, 1978." The parties apparently exchanged no correspondence between the letters dated August 15 and October 3.
The negotiations for a new contract were unsuccessful, and at midnight, October 31, 1978 Rochdale discharged its security guards, who were replaced by employees of a security service contractor, International Bureau for Protection and Investigation, Ltd. (IBPI). The Union thereupon called a strike of all of its members employed by Rochdale.
Two state court lawsuits were brought as a result of the strike. On November 1, Rochdale filed suit against the Union seeking to enjoin picket-line violence and to obtain other related relief pursuant to N.Y. Labor Law § 807 subd. 1(f) (McKinney 1977). The action was dismissed for failure to comply with that section's pleading and procedural requirements.*fn2 On November 22, IBPI brought an action seeking to enjoin the Union from interfering with the Rochdale-IBPI contract. This action also was dismissed, the court holding that IBPI had failed to meet the pleading and standing requirements of § 807, and had ...