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USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1505
INTERNATIONAL ASSOCIATION OF MACHINISTS and AEROSPACE WORKERS,
(AFL-CIO), LOCAL 2725
Plaintiff, Appellee,
v.
CARIBE GENERAL ELECTRIC PRODUCTS, INC.,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge] __________________________
____________________
Before
Boudin, Circuit Judge, _____________
Campbell and Bownes, Senior Circuit Judges. _____________________
____________________
Felix Benitez Colon with whom Rivera Tulla & Ferrer was on brief ____________________ _____________________
for appellant.
Luis F. Padilla for appellee. _______________
____________________
March 13, 1997
____________________
BOUDIN, Circuit Judge. The union, representing the ______________
employees of Caribe General Electric ("Caribe"), sued the
company in the district court for damages and related relief
for a refusal to arbitrate, or for an order requiring it to
arbitrate, five specific grievances under a collective
bargaining agreement. The district court ordered arbitration
as to all of the grievances, ruling that the arbitrator
should determine whether the grievances were arbitrable. We
hold that this was a matter for the court to decide and
remand as to four of the grievances for further proceedings.
The facts of importance to this appeal are undisputed.
Caribe and its union had a collective bargaining agreement
which, as most do, contained many substantive provisions, a
grievance procedure, and an arbitration provision providing
for mandatory arbitration of specified categories of
disputes. During the term of this agreement, Caribe took
five different actions that caused the union to invoke the
grievance procedure and, when that did not resolve matters,
to demand arbitration. Three of the grievances grew out of
one episode: Ibrahim Rosario, Herminio L pez, and Esteban
Calder n were group leaders of three separate departments.
The company eliminated one of the departments, integrating
its functions into the other two; it then re-assigned L pez
and Calder n as group leaders of the enlarged departments,
and retained Rosario but without a leadership post. The
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fourth grievance concerned Antonio V zquez, who had been a
dispatcher; Caribe eliminated that position, reallocated some
of the duties to a shipping clerk, and left V zquez in a
lower job classification. The fifth grievance involved the
temporary assignment of Narciso Torr ns for more than 30 days
to perform the tasks of two assembly workers who were
consecutively on vacation.
When the grievance procedure failed to resolve matters
and Caribe refused arbitration, the union brought suit in the
district court under 29 U.S.C. 185, claiming inter alia ___________
that the grievances were subject to mandatory arbitration and
that the company should be required to proceed with
arbitration. On cross-motions for summary judgment, the
district court ruled that the five grievances were arguably
subject to mandatory arbitration and that the arbitrator
should resolve this issue.
Caribe has appealed the judgment as to four of the
grievances, agreeing that the Torr ns matter should be
arbitrated. Conversely, the union now concedes that the
district court was mistaken in referring the issue of
arbitrability to the arbitrator; but it says that all five
grievances are subject to mandatory arbitration and that the
order to arbitrate should be affirmed outright on this
alternative ground.
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Labor arbitration depends upon contract, AT&T ____
Technologies, Inc. v. Communications Workers, 475 U.S. 643, ___________________ _______________________
648 (1986); Tejidos de Coamo, Inc. v. ILGWU, 22 F.3d 8, 12 ______________________ _____
(1st Cir. 1994), and the collective bargaining agreement
("CBA") in this case provides for mandatory arbitration only
in certain categories of cases, including "[t]he claimed
violation of a specific provision or provisions" of the
agreement. CBA art. XXXIV, 6(a). But even if a grievance
falls within this category, it is excluded from mandatory
arbitration by section 7 of the same article under certain
conditions, such as where the grievance
(f) Would require an arbitrator to consider, rule
on or decide any of the following:
(1) The elements of an employee's job
assignment;
(2) The title or other designations of an
employee's job classification;
(3) The right of management to assign or
reassign work or elements of work.
The Supreme Court has held that "[u]nless the parties
clearly and unmistakably provide otherwise, the question of
whether the parties agreed to arbitrate is to be decided by
the court, not the arbitrator." AT&T Technologies, 475 U.S. _________________
at 649. Here, far from agreeing to leave the arbitrability
issue to the arbitrator, the parties provided in their
agreement that in the event of a dispute on this issue,
arbitration may proceed "only after a final [judgment] of a
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Court has determined that the grievance . . . raises
arbitrable issues." CBA art. XXXIV, 4(a).
Thus, we agree with both parties that the district court
went astray in ordering arbitration without first deciding
itself that each grievance was subject to mandatory
arbitration. To do so, the court had to decide that the
grievance fell within a provision for mandatory arbitration
(e.g., section 6) and was not excluded by any other limiting ____
provision (e.g., section 7). We turn, therefore, to the ____
union's request that we decide the issue of arbitrability
ourselves and affirm the district court's arbitration order.
Since the union has not supplied us with the grievances,
it is very hard to tell whether each one rests on a colorable
claim that a specific provision of the agreement has been
violated, as required by section 6. But even with that
information, we could not determine without more information
whether arbitration of each grievance would "require an
arbitrator to consider, rule on or decide" one of the
enumerated subjects that section 7(f) excludes from mandatory
arbitration. For the same reason, Caribe's alternative
request that we direct summary judgment in its favor is
without merit.
While a remand for further proceedings is necessary, a
further word or two may be helpful to the court on remand.
Caribe has not limited its claim of non-arbitrability to
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section 7(f) but has also invoked other grounds of objection;
section 7(e) of the same article, which Caribe has cited on
appeal, is a close companion to section 7(f) and might need
attention. But we are concerned about Caribe's repeated
invocation of two "management rights" provisions as shields
against mandatory arbitration.
One is the basic "management rights" provision, in an
article unrelated to arbitration, which seems to us wholly
beside the point. CBA art. IV. That provision reserves
management rights broadly over a range of potentially
pertinent subjects--such as reallocation of work--but the
management rights are retained "subject only to those
provisions of this Agreement which expressly qualify this
right." Given this "subject . . . to" proviso, we are
baffled as to why Caribe thinks this management rights
provision has any relevance.
The union's grievance claims may seem obscure; but to
the extent they rest upon the violation of specific
provisions, we seriously doubt that the article IV
"management rights" clause could be read either to negate
those provisions or to restrict arbitration. See CBA art. ___
XXXIV, 4(b)(4); United Steelworkers v. Warrior & Gulf ____________________ ________________
Navigation Co., 363 U.S. 574, 584-85 (1960). The parties are ______________
welcome to argue this issue on remand, if Caribe chooses to
press it, but we do not think the company should be unduly
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encouraged by its earlier success in International Assoc. of _______________________
Machinists & Aerospace Workers v. General Elec. Co., No. 89- _______________________________ _________________
1115JP, 1990 WL 29806 (D.P.R. 1990), which was not appealed.
The arbitration article itself contains a second,
somewhat less detailed reservation of management rights, CBA
art. XXXIV, 4(b)(4), but it too appears to permit mandatory
arbitration--if otherwise provided--so long as the grievance
is based on an express limitation in the agreement and is not
subject to section 7's exclusions. See id. ("[T]he parties ___ ___
have not agreed to arbitrate demands which challenge action
taken by the company in the exercise of any [management]
rights, except where such challenge is based upon a violation _____________________________________________________
of any such expressed limitations (other than those set out _____________________________________________________________
in Section 7 of this Article XXXIV).") (emphasis added). ___________________________________
On remand, we suggest that the district court consider
on a grievance-by-grievance basis whether--as to each of the
four remaining grievances--the grievance (1) is based upon a
colorable claim that the company's action violated one or
more specific provisions of the agreement and (2) is not
excluded from mandatory arbitration by one or more of the
exclusions of section 7. Unless both conditions are
satisfied, it appears that mandatory arbitration cannot be
ordered, so the district court may not need to rule on both
conditions.
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There may be other bases for, or limitations on,
mandatory arbitration that we have overlooked; but we
encourage the parties to help the district court focus the
issues. As already noted, we doubt that the management-
rights reservations are pertinent. And it certainly does not
help for the union to invoke the Supreme Court's default
presumption in favor of arbitration where, as here, the
collective bargaining agreement explicitly negates the
presumption. CBA Art. XXXIV, 4(b)(5); AT&T Technologies, _________________
475 U.S. at 650.
Finally, it is worth emphasizing that the issue before
the district court on remand in this case is not the merits
of the grievances; it is simply whether they are subject to
mandatory arbitration. All that the union complained of in
this case was the failure to afford mandatory arbitration,
and that is the only issue before us or the district court.
AT&T Technologies, 475 U.S. at 649-50. Needless to say, even _________________
if a grievance is excluded from mandatory arbitration, the
union is not necessarily without contractual remedies for an
alleged violation of the agreement. Cf. Vaca v. Sipes, 386 ___ ____ _____
U.S. 171, 184 n.9 (1967).
The order of the district court is therefore affirmed as ________
to the Torr ns grievance but modified to require arbitration ________
on the merits, the company having agreed that this grievance
is arbitrable. The order requiring arbitration is vacated as _______
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to the other four grievances and remanded for further ________
proceedings not inconsistent with this decision.
It is so ordered. ________________
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Document Info
Docket Number： 96-1505
Filed Date： 3/13/1997
Precedential Status： Precedential
Modified Date： 9/21/2015