ii. exhaustion of the grievance procedure … · exhaustion of the grievance procedure and judicial...

APPENDIX B 389

II. EXHAUSTION OF THE GRIEVANCEPROCEDURE AND JUDICIAL DECISIONS

ON THE MERITS

A. Actions by Individual Employees

In the case of Smith v. Evening News Assn.,37 the Supreme Courtheld that individual employees could bring an action under Sec-tion 301 for breach of a collective agreement. The Smith decisionhas resulted in many suits brought by individual employees butvery few have met with success. By far the most important reasonhas been the failure of the individual plaintiffs to exhaust theirremedies under the contractual grievance procedure as requiredby the Supreme Court's decision in Republic Steel Corp. v. Mad-dox.38 The courts have been quite exacting in enforcing thisrequirement.39

Cases have been dismissed not only where the individual em-ployees had not attempted to have their grievances processed,40

but also where the attempt went no further than a request to theunion steward.41 The courts, however, have differed as to whetherallegations of conspiracy and breach of the duty of fair representa-tion may relieve the plaintiff of the duty to exhaust the grievanceprocedure, at least to the extent of not having his complaint dis-missed before trial. One court has held that it does relieve theplaintiff of such a duty.42 Another indicated that it might.43 Athird found that it did not.44

37 371 U.S. 195 (1962), 51 LRRM 2646.38 379 U.S. 650 (1965) , 58 LRRM 2193. It is interesting to note that the SupremeCourt declined in its recent decision in Walker v. Southern Railway Co., 63 LRRM2491 (1966) to apply the Maddox exhaustion doctrine to employees covered by theRailway Labor Act.39 One court even required exhaustion for a personal assault action by an employeeagainst his employer. Goldstein v. Corbin, 63 LRRM 2248 (N.Y. Sup. Ct., 1966).40 Wimberly v. Clark Controller Co., 364 F.2d 225, 62 LRRM 2756 (6th Cir., 1966) ;Woody v. Sterling Aluminum Products, Inc., 365 F.2d 448, 63 LRRM 2087 (8thCir., 1966); Desrosiers v. American Cyanamid Co., 62 LRRM 2111 (D. Conn.,1966); WE v. Cook Machinery Co., 254 F. Supp. 904, 63 LRRM 2103 (X.D. Tex.,1966).a Doty v. A. <fr P. Tea Co., 362 F.2d 930, 62 LRRM 2595 (6th Cir., 1966) .42 Fiore v. Associated Transport, Inc., 255 F. Supp. 596, 62 LRRM 2517 (M.D.Penn., 1966) .43 Wimberly v. Clark Controller Co., 364 F.2d 225, 62 LRRM 2756 (6th Cir., 1966).44 Desrosiers v. American Cyanamid Co., 62 LRRM 2111 (D. Conn., 1966) .

390 20TH ANNUAL MEETING—NAT'L ACADEMY OF ARBITRATORS

Individual employees have also been precluded from bringing acourt action where the union, with the consent of such employees,voluntarily withdrew the case during arbitration.45 Furthermore,after a case has gone to arbitration and been decided adverselyto the individual employees, the award will be binding on theemployees absent a showing of no jurisdiction on the part of thearbitrator or improper conduct by the parties.46 One court haseven held a settlement between the employer and the union willlikewise be binding upon an employee who later attempts to bringhis own court action.47

Those cases which were not dismissed on Maddox grounds weregenerally unsuccessful for a variety of other reasons. In one case,the complaint did not sufficiently allege how the applicable clausein the contract had been violated.48 In another case, a court heldthat certain employees in a multi-employer unit did not havestanding to challenge a rider to the master agreement applicableonly to another employer in the unit.49 Two other cases were dis-missed on their merits.50

One decision, however, deserves special comment. In Brown v.Sterling Aluminum Corp.,61 individual members of the union shopcommittee sought a court order to compel the employer to discusswith them certain grievances relating to the closing and removal ofthe plant. There was no arbitration provision in the collectiveagreement. As the plant had already been closed, the plaintiffs alsorequested an order requiring the restoration of the status quo ante.In dismissing the case, the Eighth Circuit found that the LincolnMills decision 52 did not envision suits to compel "discussion"as opposed to arbitration. Furthermore, the "discussion" en-visioned by the grievance procedure in the instant case was not

4.-1 Campbell v. Mardigian Corp., 253 F. Supp. 110, 62 LRRM 2052 (E.D. Mich., 1966) .46 MUler v. Spector Freight Systems, Inc., 366 F.2d 92, 63 LRRM 2222 (1st Cir., 1966) ;Thrift v. Bell Lines, Inc., 256 F. Supp. 475, 63 LRRM 2361 (D.S.C., 1966) ; Tully v.Fred Olson Motor Service Co., 62 LRRM 2266 (Wis. Cir. Ct., 1966) .47 Donahue v. Acme Markets, Inc., 62 LRRM 2770 (E.D. Pa., 1966) .48 Cheese v. Afram Bros. Co., 145 N.W.2d 716, 63 L R R M 2358 (Wis. Sup. Ct.,1966).4f» Mahany v. Grogan, 245 F. Supp. 362, 61 LRRM 2382 (E.D. Mo., 1965) .•->o Williams v. Kroger Co., 369 F.2d 85, 63 LRRM 2541 (6th Cir., 1966) ; Green v.Stereotypers Union, 356 F.2d 473, 61 LRRM 2419 (9th Cir., 1966).51 365 F.2d 651, 63 LRRM 2177 (8th Cir., 1966) .">-> Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957) , 40 LRRM 2113.

APPENDIX B 391

intended to cover disputes of this nature. Of greater interest, thecourt also stated that individual employees may only bring actionsto enforce personal vested rights. Such rights were not involved inthis case. The court also added gratuitously that individual em-ployees can compel arbitration with respect to such personalvested rights.53

B. Actions by Employers or Unions

As with individual employees, before seeking a judicial determi-nation on the merits employers and unions have an obligation toexhaust the grievance and arbitration procedure, provided suchprocedure is available to them.54 In two cases, actions by em-ployers for damages for breach of no-strike clauses were stayedpending arbitration.55 Union actions met the same fate wherearbitration procedures were not exhausted.56 The problem waspresented in a somewhat different context in Local 11, IBEW v.Thompson Electric, Inc.51 The union sought to enforce an arbi-tration award requiring the employer to make certain paymentsto two trust funds. The employer defended on the grounds thatit had previously brought an action to declare these paymentsunlawful under Section 302 (which proved unsuccessful) and thatthe union should have presented its demand for payment as acompulsory counterclaim to this first action. The court rejectedthe defense in that such a counterclaim would have forced theunion to bypass arbitration.58

•">•* On this point compare Black-Clawson Co., Inc. v. 1AM, 313 F.2d 179, 52 LRRM2038 (2d Cir., 1962) with Donnelly v. United Fruit Co., 40 N.J. 61, 190 A.2d 825,53 LRRM 2271 (1963).•r>4 Drake Bakeries, Inc. v. Local 50, American Bakery Workers, 370 U.S. 254 (1962) ,50 LRRM 2440.M Hearst Corp. v. Pressmen's Union, 61 LRRM 2707 (S.D. Cal., 1966); Oneita Knit-ting Mills v. ILGWU, 249 F. Supp. 230, 61 LRRM 2597 (D.S.C., 1966) .WIUE, Local 752 v. Wald Mfg. Co., 63 LRRM 2570 (E.D. Ky., 1966) (disputewhether employer must provide certain equipment); Die Sinkers v. PittsburghForging Co., 255 F. Supp. 142, 63 LRRM 2152 (W.D. Pa., 1966) (subcontractingdispute).">7 363 F.2d 181, 62 LRRM 2601 (9th Cir., 1966) .">s In a relatively few cases the courts did decide a union's or employer's case solely onthe merits. In Smith v. Kingsport Press, Inc., 366 F.2d 416, 63 LRRM 2193 (6thCir., 1966) the court, relying heavily on arbitrators' decisions, found that the strikerswere entitled to already-accrued vacation pay. In General Electric Co. v. Local 761,WE, 62 LRRM 2782 (W.D. Ky., 1966) , the court found the union had agreed togive ten days' notice before striking.


C. Role of the Courts Where the Contract Contained a GrievanceProcedure Without a Mandatory Arbitration Provision

The courts have continued to be troubled about the effect of agrievance procedure which does not provide for mandatory arbi-tration. The question has basically been whether the parties byproviding grievance machinery, but omitting a provision formandatory arbitration, have intended to preclude the resolutionof disputes by any third party, including the courts.

The question was presented this year in a few cases. In Haynesv. U. S. Pipe & Foundry Co.,5® the contract provided that thegrievance procedure would terminate with the decision of theplant manager, but reserved to the union the right to strike overthe manager's decision. No provision was made for arbitration.The union in this case had processed an individual employee'sdischarge grievance through this procedure to the last step but,after receiving an adverse decision from the plant manager, haddeclined to exercise its right to strike. The individual employeethen sought relief from a federal district court under Section 301.In ruling on the question, the Fifth Circuit held that as the con-tract provided that the plant manager's decision was binding ab-sent a notice to strike, the individual employee was bound by thisdetermination due to the failure of the union to strike. His actionwas accordingly dismissed. The court did not distinguish or evencite its decision of the previous year 60 where it had ruled on themerits of a union's contract action in spite of the employer's argu-ment that the union's only recourse was self-help. The contract inthe latter case contained a nonmandatory arbitration provision.

In American Motors Corp. v. WERB,&1 the employer, with lesssuccess, argued that the WERB was precluded from bringing anadministrative action for breach of a collective bargaining agree-ment in that the grievance procedure had no provision for arbi-tration and thus the union was relegated solely to self-help.62 In

59 362 F.2d 414, 62 LRRM 2389 (5th Cir., 1966).60 Allied Oil Workers Union v. Ethyl Corp., 341 F.2d 47, 58 LRRM 2267 (5th Cir.,1965).61 145 N.W.2d 137, 63 LRRM 2226 (Wis. Sup. Ct., 1966).c>2 The decision is also noteworthy in that the court decided that the WERB wasnot preempted from bringing an administrative action for breach of a collectivebargaining agreement. Wisconsin law makes such a breach an unfair labor prac-tice. The court reasoned that the state has Section 301 jurisdiction and can allocateits judicial power where it desires.

APPENDIX B 393

rejecting this defense, the court distinguished the Haynes case onthe grounds that that case involved an action by an employee asopposed to a union. The court reasoned that the union's interestswere more important than an individual's and should not there-fore be so easily foreclosed.

The U. S. Supreme Court has also touched on this very samequestion. In NLRB v. C & C Plywood Corp./3 the Court, intreating a different subject, indicated in passing that the unioninvolved in the case could have instituted a court action on themerits of a premium pay dispute in spite of the absence of an arbi-tration provision. But the nature and exact provisions of thegrievance machinery, if any, were not apparent from the Court'sopinion or from other sources.

III. COMPELLING ARBITRATION AND REVIEWOF AWARDS

A. Compelling Arbitration

Guided by the Steelworkers trilogy,64 the courts have continuedto compel arbitration in the vast majority of the cases where thequestion of arbitrability has been raised. Due to their relativerarity, the cases where arbitration was not ordered are perhaps ofparamount interest.

The surest way to preclude arbitration has generally been toincorporate a clause into the collective bargaining agreement ex-pressly excluding the particular subject matter from arbitration.Two of the cases in which arbitration was not ordered this yearfell into this category. The first case involved a demotion.65 Thesecond case involved employees who had admittedly engaged inan unauthorized work stoppage.66 Both contracts expressly ex-

<53 385 U.S. 421 (1967), 64 LRRM 2065. This decision will be discussed in detaillater in this Report.64 United Steelworkers v. American Mfg. Co., 363 U. S. 565 (1960), 46 LRRM 2414;United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960) , 46LRRM 2416; United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593(1960), 46 LRRM 2423.65 United Aircraft Corp. v. Lodge 971, IAM, 360 F.2d 150, 62 L R R M 2299 (5th Cir.,1966).MDist. 50, UMW v. Chris-Craft Corp., 251 F. Supp. 755, 61 LRRM 2616 (E.D.Tenn., 1966).


eluded such matters from arbitration. On the other hand, if thereis a doubt whether the subject matter of the dispute falls within astated exception, the courts have ordered the parties to arbitrate.07

In a dubious decision, Boilermakers v. Shell Oil Co./>s theSeventh Circuit looked to collective bargaining history 69 to con-clude that a subcontracting dispute was not arbitrable. Althoughthe contract contained a standard arbitration provision, the courtrefused to order arbitration of the general subcontracting questionfor the following reasons: the contract was silent on subcontract-ing; the union sought in previous negotiations to obtain a clauseprohibiting subcontracting; and the union had not contradicted aprevious statement by the company that the company had sucha right. Arbitration was therefore ordered only on the very limitedquestion of whether the subcontracting was for a discriminatorypurpose in violation of the no-discrimination clause found in thecontract. In two other cases, bargaining history was also con-sidered but was not found sufficiently conclusive as to precludearbitration.70

Arbitration also has been denied where the court found thatthe underlying contract was never consummated or was for someother reason invalid. In one case a court found the collective agree-ment had been negotiated but had never been adopted by the

07 Arbitration was ordered in three cases where a party argued that the dispute fellwithin the exclusion relating to wage rates. Radiator Corp. v. Operative Potters,358 F.2d 455, 61 LRRM 2664 (6th Cir., 1966) (change from piece rate to hourlyrate and question whether new or old job); Local 490, United Rubber Workers v.Kirkhill Rubber Co., 367 F.2d 956, 63 LRRM 2196 (9th Cir., 1966) (relationshipbetween call-in pay and overtime provisions) ; Bancroft Hotel v. Bartenders Union,63 LRRM 2535 (E.D. Mich., 1966) (question whether employer may make certaindeductions) . In a fourth case, arbitration was ordered where the union disputedan employee's involuntary retirement. The employer had contended the questionfell under the retirement plan which was not arbitrable while the union had con-tended it fell under the dismissal clause which was arbitrable. Order of Repeatermenv. Bell Telephone Co., 63 LRRM 2167 (D. Nev., 1966) .68 369 F.2d 526, 63 LRRM 2173 (7th Cir., 1966) .f>a The circuits are split as to the admissibility of such evidence to determinearbitrability. The Second and Fourth Circuits have not allowed such evidence. WEv. General Electric Co., 332 F.2d 485, 56 LRRM 2289 (2d Cir., 1964) ; A. S. Abell Co.v. Baltimore Typographical Union, 338 F.2d 190, 57 LRRM 2480 (4th Cir., 1964) .The Ninth Circuit has allowed it. Communications Workers v. Pacific NorthwestBell Telephone Co., 337 F.2d 455, 57 LRRM 2203 (9th Cir., 1964) .70 Insurance Workers Union v. Home Life Insurance Co., 255 F. Supp. 926, 62LRRM 2694 (E.D. Pa., 1966) ; Meat Cutters v. Knouse Foods Cooperative, Inc., 259F. Supp. 592, 63 LRRM 2293 (M.D. Pa., 1966) .

APPENDIX B 395

parties. Arbitration was accordingly denied.71 In a second case,however, the court found that a pension plan containing an im-partial chairman provision was still operative, regardless of theclosure of the plant, because the parties continued to processapplications under the plan. Arbitration was therefore ordered.72

In related areas, the courts have indicated that grievances arisingbefore the effective date of a contract will not be arbitrable.73

Grievances arising during the term of the contract will be arbi-trable even though, at the time of court action, the contract hasexpired and the union is no longer the certified representative.74

Arbitration was also denied where a union sought to change thewage rates in the contract on the basis of certain changes in thestate's minimum wage law. The court found that the arbitratorwould not have the power to reform the contract.75 But arbitrationwas ordered where a grievance related to the inclusion of certainemployees in a unit.76 A court also has refused to enjoin grievanceswhere the employer contended that a previous arbitration awardwas res judicata.77

The courts were unanimous this year in referring all questions ofprocedural arbitrability to the arbitrator.78 In this respect, noattempt was made to determine whether or not the proceduralquestion was in fact intertwined with the merits of the dispute. Aninteresting wrinkle was introduced, however, in Vacuum Tanker

71 Warrior Constructors, Inc. v. WOE, Local 926, 62 LRRM 2313 (N.D. Ga., 1966) .T2 UAW v. Defiance Industries, Inc., 251 F. Supp. 650, 62 LRRM 2002 (N.D. Ohio.1966).73 Fairway Farms, Inc. v. Local 584, IBT, 61 LRRM 2572 (E.D. N.Y., 1966).74 in re Westinghouse Corp., 62 LRRM 2726 (N.Y. Sup. Ct., 1966).75 Burns Detective Agency v. Navarro, 274 N.Y. Supp. 314, 62 LRRM 2847 (N.Y. Sup.Ct., 1966); Burns Detective Agency v. Navarro, 63 LRRM 2327 (N.Y. Sup. Ct., 1966) .76 Columbian Carbon Co. v. Operating Engineers, 360 F.2d 1018, 62 LRRM 2292 (5thCir., 1966) .77 Michigan Shippers v. Local 299, Teamsters, 61 LRRM 2466 (E.D. Mich., 1966) .1% Sheet Metal Workers' Union v. Aetna Corp., 359 F.2d 1, 62 LRRM 2106 (1st Cir.,1966) ; Radiator Corp. v. Operative Potters, 358 F.2d 455, 61 LRRM 2664 (6th Cir.,1966); Local 1401, Retail Clerks v. Woodman's Food Market, 63 LRRM 2568 (7thCir., 1966) ; Local 51, IBEW v. Illinois Power Co., 357 F.2d 916, 61 LRRM 2613 (7thCir., 1966); Local 490, United Rubber Workers v. Kirkhill Rubber Co., 367 F.2d956, 63 LRRM 2196 (9th Cir., 1966) ; Steelworkers v. North Range Mining Co., 249F. Supp. 754, 61 LRRM 2697 (D. Minn., 1966) ; Lithographers v. Rittenhouse Press,Inc., 259 F. Supp. 160, 63 LRRM 2285 (E.D. Pa., 1966) ; Teamsters v. Standard MotorFreight, Inc., 260 F. Supp. 269, 63 LRRM 2385 (M.D. Pa., 1966) ; In re Rose Corp.,62 LRRM 2692 (N.Y. Sup. Ct., 1966) .


Men's Assn. v. Socony Mobil Oil Co.19 In this case, the employerinsisted that a dispute could not be arbitrated in the absence of anagreement between the parties as to the issue to be submitted.Saving the arbitrator some work, the Second Circuit solved theproblem by framing the issue for the parties.

B. Review of Awards

Courts have generally been very reluctant to set aside the awardsof arbitrators. The most interesting cases are again those in whichthe enforcement of an arbitration award was denied. Two suchcases were decided by the Courts of Appeals in 1966.

Torrington Co. v. Metal Products Workers 80 appears to be arather unusual venture into the realm of arbitral discretion. Theunion had contended and the arbitrator had agreed that the em-ployer had violated the contract by discontinuing its past practiceof allowing employees one hour off to vote on election day. Thepractice had actually been discontinued during the term of theprevious contract.81 During negotiations for the present contract,both parties had offered proposals which reflected their respectivepositions on the question. But the final contract was again silenton the question. The arbitrator based his decision primarily onthe premise that the employer had the burden of changing thispast practice through negotiations. This, the employer had notdone, the arbitrator held. In reviewing the award, the SecondCircuit first declared that a more exhaustive judicial examinationof a dispute is required once an award has been rendered thanis true where a party seeks to compel arbitration. It then pro-ceeded to take issue with the arbitrator's premise. It adopted a"reserved rights" approach, that rights discussed during negotia-tions but not incorporated into the contract should not later beinferred. The court also noted that the practice actually had beenchanged before the negotiations so that it was the union, not theemployer, who was seeking to change the status quo in the negotia-tions. Enforcement of the award was therefore denied in thatthe arbitrator had "added to" the agreement.

79 369 F.2d 480, 63 LRRM 2590 (2d Cir., 1966).80 362 F.2d 677, 62 LRRM 2495 (2d Cir., 1966) .81 At that time the contract contained a restrictive arbitration clause which preventedarbitration of the discontinuation.

APPENDIX B 397

In Steamship Co. v. Maritime Union/2 the Fifth Circuit alsorefused to enforce an arbitration award. In this case, the contractcontained a no-strike clause restricted in application to arbitrabledisputes. The court's refusal was based on the fact that the arbi-trator had not determined if the underlying dispute should be heldto be arbitrable.

In a third case, a union sought to enforce an ex parte awardrendered by a member appointed by the union to a tripartitearbitration board. The employer had refused to participate andhad not appointed its own representative or joined in the selectionof a neutral member. The court refused to enforce such an awardand held that the appropriate remedy was to bring an action tocompel arbitration.83

Arbitration awards were enforced in the remaining cases de-cided and reported during the year. These cases 84 by and largedid not present interesting or novel issues.

82 360 F.2d 63, 62 LRRM 2083 (5th Cir., 1966).«3 Fuller v. Pepsi-Cola Bottling Co., 406 S.W.2d 416, 63 LRRM 2220 (Ky. Ct. ofApp., 1966).84 Metal Products Workers v. Torrington Co., 358 F.2d 103, 62 LRRM 2011 (2d Cir.,1966) (question of arbitrability expressly submitted to arbitrator by the parties andfound not arbitrable); Paper Mill Workers v. St. Regis Paper Co., 362 F.2d 711,62 LRRM 2483 (5th Cir., 1966) (discharge) ; Western Iowa Pork Co. v. Packing-house Workers, 366 F.2d 275, 63 LRRM 2187 (8th Cir., 1966) (holidays and over-time) ; Safety Electrical Equipment Corp. v. Local 299, UE, 62 LRRM 2786 (D. Conn.,1966) (workman's compensation waiver requirement) ; Local 1078, UAW v. Ana-conda Brass Co., 256 F. Supp. 686, 62 LRRM 2699 (D. Conn., 1966) (discharge);Smeltermen's Union v. Anaconda Co., 260 F. Supp. 445, 63 LRRM 2393 (D. Mont.,1966) (recall of strikers); Local 719, Bakery Workers v. National Biscuit Co., 252F. Supp. 768, 62 LRRM 2182 (D. N.J., 1966) (change of work schedules; bothparties consented to determination of arbitrability by arbitrator); Local 77, Musiciansv. Orchestra Assn., 252 F. Supp. 787, 62 LRRM 2102 (E.D. Pa., 1966) (compulsoryair travel) ; Wooleyhan Co. v. Truck Drivers, 62 LRRM 2481 (E.D. Pa., 1966), (dis-charge) ; Teamsters v. Standard Motor Freight, Inc., 260 F. Supp. 269, 63 LRRM 2385(M.D. Pa., 1966) (discharge) ; General Precision, Inc. v. IAM, 62 LRRM 2294(Calif. D.C.A., 1966) (holidays) ; Brewery Workers v. Maier Brewing Co., 63 LRRM2295 (Calif. Super. Ct., 1966) ; In re Local 1260, 1BEW, 411 P.2d 134, 61 LRRM 2390(Haw. Sup. Ct., 1966) (discharge) ; Plumbers, Local 525 v. District Court, 62 LRRM2126 (Nev. Sup. Ct., 1966) (termination of agreement) ; Pilchick v. Joint Board, 63LRRM 2352 (N.Y. S.Ct., 1966) (challenged on bias of impartial chairman) ; De-liverer's Union v. Publishers Assn. of Neiv York City, 62 LRRM 2776 (N.Y. S.Ct.,1966) (challenged on nntimeliness of award) ; Local 95 v. Able Wrecking Corp., 61LRRM 2647 (N.Y. S.Ct., 1966) (award approved, but remanded on liabilities) ;Zimmerman v. Tro Dress Co., 61 LRRM 2465 (N.Y. S.Ct., 1966) (alter ego ques-tion) ; UAW v. Robertshaw Controls Co., 63 LRRM 2348 (S.D. Ohio, 1966) (multi-ple grievances) ; Waco Transit Corp. v. Transportation Workers Union, 62 LRRM2297 (Tex. Ct. Civ. App., 1966) (discharge) .


IV. PROBLEMS OF CONCURRENT JURISDICTIONOne of the most fascinating problems in recent years has in-

volved the relationship between the authority of the NLRB underSections 8 and 9 of the Act and the power of arbitrators or courtsunder Section 301. Prior to 1966, the Supreme Court had shedsome light on the question in Smith 85 and Carey.86 The Courtupheld Section 301 actions based upon breaches of collective agree-ments even though the subject matter of the disputes involvedunfair labor practices or representation matters normally con-sidered grist for the Board. During the 1966 October Term, theCourt, in two companion cases, had an opportunity to considerthe corollary question of whether the Board must defer questionsof contract interpretation to either the courts or arbitration. Inboth these cases the right of the Board to interpret a contract wasupheld.

In the first case, NLRB v. C & C Plywood Corp.,87 the Courtspecifically held that the Board could construe a collective bargain-ing agreement to determine if a union had contractually waivedits right to bargain on group incentive rates during the term ofthe contract. The employer in this case had unilaterally estab-lished such group incentive rates without bargaining with theunion and had later defended the Board's refusal to bargain com-plaint on the grounds that it had the right under the collectivebargaining agreement to establish such rates. In this respect theemployer pointed to a clause allowing premium rates for "anyparticular employee" and also to a "zipper" clause.88 The Board,in rejecting this defense, found that such clauses did not consti-tute a sufficient waiver by the union of the employer's statutoryduty to bargain on group as opposed to individual rates. TheNinth Circuit, however, denied enforcement of the Board's orderand held that the validity of the employer's contractual defenseshould have been determined in a Section 301 action rather thanby the Board.89

85 Smith v. Evening News Assn., 371 U.S. 195 (1962), 51 LRRM 2646.so Carey v. Westinghouse Electric Corp., 375 U.S. 261 (1964) , 55 LRRM 2042.87 385 U.S. 421 (1967) , 64 LRRM 2065.88 T h e "zipper" clause provided that each party waived during the term of theagreement its right to bargain collectively with respect to any subject not speciallycovered by the agreement.89 351 F.2d 224, 60 LRRM 2137 (9th Cir., 1965) .

APPENDIX B 399

In reversing the Ninth Circuit, the Supreme Court first notedthat the collective bargaining agreement did not contain an arbi-tration clause and thus the policy favoring arbitration as a meansof resolving disputes was not applicable. The employer had alsoargued that Congress had clearly rejected a proposal to make abreach of a collective bargaining agreement an unfair labor prac-tice and had therefore intended that the Board not have the powerto interpret such agreements. To this the Court responded thatthe interpretation by the Board in this case went no further thanto determine if the union's statutory rights were waived under thecontract and did not involve a determination of the parties'respective rights under the contract itself. The Court also notedthat referring the contract question to the courts would onlyfurther increase the time already required for the processing ofunfair labor practice cases. The Court concluded that the Boardwas correct in finding that the two clauses did not constitute awaiver of the union's right to bargain on group incentive rates.

In the second case, NLRB v. Acme Industrial Co.®Q the Courtconsidered whether the Board must defer to arbitration the ques-tion of the relevancy of certain information requested by a unionfor the purpose of processing grievances. The employer in this casehad removed certain machinery from its plant and the union hadrequested information relating to its removal. The collective bar-gaining agreement in question prohibited subcontracting whichwould cause a layoff or prevent recall. It also contained a clauseallowing employees who were displaced by the removal of ma-chinery to another plant to have certain transfer rights at suchplant. In refusing the request, the employer contended that theinformation sought was not relevant to a valid grievance in thatno employees had been laid off by the removal of machinerywithin the five-day period specified in the contract for the filing ofgrievances. The enforcement of a subsequent Board order requir-ing the employer to supply this information was denied by theSeventh Circuit.91 That court reasoned that the existence of anarbitration clause in the contract meant that only an arbitrator, notthe Board, could determine if the information requested wasrelevant.

90 385 U.S. 432 (1967) , 64 LRRM 2069.»i 351 F.2d 258, 60 LRRM 2220 (7th Cir., 1965) .


The Supreme Court, however, disagreed. It distinguished theSteelworkers trilogy upon which the Seventh Circuit relied. TheBoard, it concluded, has greater expertise than the courts withrespect to the arbitration process. Unlike the courts, the Board hasa mandate to remedy unfair labor practices. Section 10 (a) of theAct declares that that mandate "shall not be affected by any othermeans of adjustment." The Court also reasoned that the Board inany event was not usurping the power of the arbitrator. It was notdetermining the merits of the dispute but only "the probabilitythat the desired information was relevant." The Court lastly notedthat, far from interfering with the arbitration process, the require-ment of supplying information was an aid to the grievance andarbitration machinery in that it facilitated the sifting out of un-meritorious claims. The Seventh Circuit was therefore directedto enforce the Board's order.92

From these four Supreme Court cases it might appear that Sec-tion 301 on the one hand, and Sections 8 and 9 on the other,provide two entirely independent remedies and that neitherrequires deference to the other. Such, however, has not alwaysbeen the conclusion reached by the lower state and federal courtsduring the year. For example, in General Electric v. Getreu,93 afederal district court enjoined a regional director of the NLRBfrom conducting an unfair labor practice hearing on the groundsthat the subject matter of the hearing was already before thecourt in a Section 301 action.94 Actions brought by individualemployees which have combined an alleged breach of the dutyof fair representation with an inartfully drawn breach of contractcause of action have been dismissed by the courts on the groundsthat they exclusively stated unfair labor practices.95 On the other

92 in a somewhat similar case, Fafnir Bearing Co. v. NLRB, 362 F.2d 716, 62 LRRM2415 (2d Cir., 1966) , it was held that the employer must allow a union's time andmotion man into the plant for the purpose of obtaining information for anarbitration.93 62 LRRM 2550 (VV.D. Ky., 1966) .94 The court action was brought by the employer on the grounds that the union hadviolated an agreement to give the employer ten days' notice before striking. Theemployer had also refused to bargain with the union after the alleged breachpresumably on the theory that its duty to bargain had been suspended as a resultof the breach. This refusal resulted in an 8 (a) (5) complaint.95 Smith v. Pittsburgh Gage & Supply Co., 245 F. Supp. 864, 60 LRRM 2516 (W.D.Pa., 1965) , aff'd per curium 361 F.2d 219, 62 LRRM 2344 (3d Cir., 1966); Chasi.s v.Progress Mfg. Co., 256 F. Supp. 747, 62 LRRM 2745 (E.D. Pa., 1966) .

APPENDIX B 401

hand, the courts have refused to stay arbitration, or the imple-mentation of an arbitration award, involving a union securityprovision on the ground that a union shop deauthorization pro-ceeding was pending before the Board.90

The courts have differed as to whether to compel arbitrationwhere the employer has recognized a union other than the con-tracting union and where the resulting dispute was before theBoard for resolution. In one case, arbitration was ordered on thegrounds that it would only fill out the terms of the contract andwould not conflict with the Board's determination as to whichunion should be ultimately recognized.97 In a second case, how-ever, arbitration was not compelled. The court based its refusalprimarily on the fact that the collective bargaining agreementcontained certain provisions which the court found were illegal.98

A Board order and an arbitration award came into direct conflictduring the year and it was held that the Board's order took prece-dence.99 In one case, the First Circuit was requested by the Boardto enforce an 8 (b) (4) (D) order against the ITU which was pro-testing a Section 10 (k) determination awarding certain work tothe ALA. In a second case, the court was simultaneously requestedby the ITU to enforce an arbitration award under the ITUcontract which had awarded exactly the same work to the ITU.But the arbitrator had only the one union before him. TheBoard has indicated that it will not defer to a bilateral award in ajurisdictional dispute trilateral in nature. In a consolidatedopinion, the Fifth Circuit, relying on Carey, enforced the Board'sorder and dismissed the action on the arbitration award.

Aside from the foregoing problems involving Sections 8 and9, the relationship between arbitration and Section 303 was alsoconsidered during 1966. In Old Dutch Farms v. Local 584, IBT,100

WKapigian v. Matsushita Electric Corp., 63 LRRM 2095 (S.D. N.Y., 1966); Skubisxv. Matsushita Electric Corp., 63 LRRM 2382 (N.Y. Sup. Ct., 1966) .97 Seltzer & Co. v. Livingston, 253 F. Supp. 509, 61 LRRM 2581 (S.D. N.Y., 1966) ,aff'd per curiam, 361 F.2d 218, 62 LRRM 2079 (2d Cir., 1966) .98 in re Smokehouse Foods, Inc., 62 LRRM 2737 (N.Y. Sup. Ct., 1966) .99 New Orleans Typographical Union No. 17 v. NLRB, E. P. Rivas, Inc., v. NewOrleans Typographical Union No. 17, 368 F.2d 755, 63 LRRM 2467 (5th Cir., 1966) .100 359 F.2d 598, 62 LRRM 2007 (2d Cir., 1966).


the court held that an employer's damage action for a secondaryboycott need not be deferred to arbitration. The union had con-tended that the matter was arbitrable in that the boycott involveda possible breach of the no-strike clause and originated from apossible breach of the agreement by the employer.

The relationship of arbitration to the Bankruptcy Act wasalso considered. In Johnson v. England,101 a union sought to com-pel arbitration on whether the assets of a bankrupt employershould be declared a trust fund to the extent that they representedmoneys due to the union's pension plan. The court refused to doso on the grounds that the proper forum for determining such aquestion would be the bankruptcy proceedings where the othercreditors could be heard on the question. The court did, however,indicate that a dispute as to the amount of the pension's claimcould be subject to arbitration without creating a conflict withthe Bankruptcy Act.

BIBLIOGRAPHY

Bernstein & Jones, "Jurisdictional Dispute Arbitration: TheJostling Professors," 14 UCLA L. Rev. 347 (1966).

Coulson, "Experiments in Labor Arbitration," 17 Lab. L. J. 138(1966).

Gregory, "Arbitration of Grievances Under Collective LaborAgreements," 1 Ga. L. Rev. 20 (1966).

Handsaker, "Grievance Arbitration and Mediated Settlements," 17Lab. L. J. 579 (1966).

Howlett, "State Labor Relations Boards and Arbitrators," 17Lab. L. J. 26 (1966).

Jones, "Evidentiary Concepts in Labor Arbitration: Some ModernVariations on Ancient Legal Themes," 13 UCLA L. Rev.1241 (1966).

Kovarsky, "Individual Suits and Arbitration," 12 How. L. J. 213(1966).

ioi 356 F.2d 44, 61 LRRM 2635 (9th Cir., 1966) .

APPENDIX B 403

Kuelthau, "Introduction to Labor Arbitration," 12 Prac. Law.61 (1966).

Lesnick, "State-Court Injunctions and Federal Common Law ofLabor Contracts: Beyond Norris-LaGuardia," 79 Harv. L.Rev. 757 (1966).

Moskowitz, "Enforcement of No-Strike Clauses by Injunction," 46B.U.L. Rev. No. 3 (1966).

O'Brien, "Should the NLRB Arbitrate Labor Contract Disputes,"6 Washburn L. J. 39 (1966).

Patrick, "Implications of the John Wiley Case for Business Trans-fers, Collective Agreements, and Arbitration," 18 S.C.L. Rev.413 (1966).

Rubenstein, "Some Thoughts on Labor Arbitration," 49 Marq.L. Rev. 695 (1966).

Shenton, "Compulsory Arbitration in the Public Service," 17 Lab.L.J. 138 (1966).

Smith 8c Jones, "Impact of the Emerging Federal Law of GrievanceArbitration on Judges, Arbitrators, and Parties," 52 Va. L.Rev. 831 (1966).

Spelfogel, "Enforcement of No-Strike Clause by Injunction, Dam-age Action and Discipline," 17 Lab. L. J. 67 (1966).

Wyle, "Labor Arbitration and the Concept of Exclusive Represen-tation," 7 B.C. Ind. & Com. L. R. 783 (1966).

Youngdahl, "Awarding Interest in Labor Arbitration Cases," 54Ky.L.J. Ill (1966).

Note, "Concurrent Jurisdiction of Arbitrators and the NLRB," 38U. Colo. L. Rev. 363 (1966).

Note, "Doctrine of Past Practice in Labor Arbitration," 38 U.Colo. L. Rev. 229 (1966).

Note, "Duty of Employer to Arbitrate with Union RepresentingEmployees of Purchased Company," 66 Col. L. Rev. 967(1966).


Note, "Enforcement of Collective Bargaining Agreements UnderSection 301," 17 Mercer L. Rev. 442 (1966).

Note, "Federal Preemption and Collective Bargaining Agree-ments," 1966 Wis. L. Rev. 532 (1966).

Note, "Individual's Remedies for Breach of a Collective Bargain-ing Agreement," 34 Geo. Wash. L. Rev. 927 (1966).

Note, "Judicial Enforcement of Labor Arbitrators' Awards," 144U. Pa. L. Rev. 1050 (1966).

Note, "Section 301 (a) and the Federal Common Law of LaborAgreements," 75 Yale L. J. 877 (1966).

Note, "Successor Corporation Subject to Labor Arbitration Agree-ment of Merged Corporation," 17 Syracuse L. Rev. 513(1966).

Note, "Use of an Arbitration Clause as a Defense to 8 (a) (5)Charge Resulting from the Employer's Refusal to BargainWhen Acting Unilaterally with Respect to a MandatorySubject of Collective Bargaining," 41 Ind. L. J. 455 (1966).

ii. exhaustion of the grievance procedure … · exhaustion of the grievance procedure and judicial...

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