source: Caselaw Access Project

author: PHILLIPS, Chief Judge.

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL UNION NO. 80, SHEET METAL WORKERS’ INTERNATIONAL ASSOCIATION, AFL-CIO, Respondent.
    No. 19904.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 11, 1973.
    Decided Feb. 15, 1974.

      Charles P. Donnelly, N. L. R. B., Washington, D. C., for petitioner; Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Paul Elkind, Chief, Contempt Litigation, Baruch A. Fellner, Atty., N. L. R. B., Washington, D. C., on brief.
    David Y. Klein, Southfield, Mich., for respondent; Sharpies, Klein & Gale, Southfield, Mich., on brief.
    Before PHILLIPS, Chief Judge, MILLER, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge.
   PHILLIPS, Chief Judge.

On October 9, 1969, this court entered a consent judgment enforcing the order of the National Labor Relations Board against the respondent Union in Board cases 7-CA-6987, 7-CA-6987(2), 7-CA-7066, 7-CB-1841, 7-CB-1841(2), 7-CB-1841(3), 7-CB-1846, 7-CB-1908 (1) through 7-CB-1908(5), 7-CB-1918 and 7-CB-1918(2).

The order of the Board which was enforced by this court requires the respondent Union to cease and desist from:

“(a) Causing or attempting to cause ., any . . . employer-member of the Sheet Metal Employers’ Association of Detroit, or any other employer, to discriminate with regard to hire, tenure, or other terms or conditions of employment against any . . . employee, in violation of Section 8(a)(3) of the Act and because such employee is not a member of Local Union No. 80, Sheet Metal Workers’ International Association, AFL-CIO.
* * * * * *
“(c) Operating or maintaining a referral or other hiring system which discriminates against non-members or favors members of Local Union No. 80, Sheet Metal Workers’ International Association, AFL-CIO.
“(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act.”

Thereafter the Board filed a petition for adjudication in civil contempt, charging that the respondent Union has disobeyed and failed and refused to comply with the consent judgment of this court.

Respondent Union filed an answer denying that it has disobeyed said judgment of enforcement.

Thereafter this court entered an order of reference appointing Honorable Thomas P. Thornton, Senior Judge, United States District Court for the Eastern District of Michigan, as Special Master to hear evidence and report to this court as to whether respondent is in civil contempt for violating, disobeying and failing and refusing to comply with the court’s decree.

The Special Master heard evidence and filed a report containing comprehensive findings of fact. The Special Master concluded that the respondent Union has violated and disobeyed the decree of this court by causing or attempting to cause employers to discriminate against employees in violation of §§ 8(b)(1)(A) and 8(b) (2) of the National Labor Relations Act. He recommended that this court enter an order adjudging Local 80 in civil contempt and directing that the Union be required to purge itself as prayed in the Board’s Second Amended Petition for Adjudication in Civil Contempt. The findings of fact of the Special Master are made an appendix to this opinion.

Upon consideration of the briefs and oral arguments of the parties and the entire record, this court concludes that the findings of fact of the Special Master are supported by substantial evidence and should be approved and confirmed in all respects.

The following order will be entered:

The National Labor Relations Board having filed a petition to adjudge in civil contempt Local 80, Sheet Metal Workers’ International Association, AFL-CIO, in that said respondent has failed and refused to comply with the decree of this court dated October 9, 1969; and said respondent having filed an answer denying that it has disobeyed the decree; and Senior United States District Judge Thomas P. Thornton in his capacity as Special Master having made a report recommending that Local 80 be adjudged in civil contempt of this court and that said respondent be required to purge itself thereof;

It is ordered that the findings of fact and conclusions of the Special Master be approved and confirmed in all respects.

It is further ordered that Local 80, Sheet Metal Workers’ International Association, AFL-CIO, is hereby adjudged in civil contempt of this court’s aforesaid decree.

It is further ordered that the respondent Union, and its officers, representatives, agents, successors and assigns, shall forthwith purge themselves of such contempt by:

(a) Complying fully with and obeying the Board’s order as enforced by this Court’s consent decree of October 9, 1969.

b) Immediately posting in conspicuous places at Local 80’s business offices, including all places where notices to members are customarily posted, for a period of sixty (60) consecutive days, copies of the contempt adjudication and of an appropriate notice in the form to be supplied by the Board signed by an officer of Local 80 which states that Local 80 has been adjudicated in civil contempt of this Court for violating and disobeying, and failing and refusing to comply with this Court’s said consent decree, and that Local 80 will undertake forthwith the action ordered in purgation, said notices, together with a copy of the contempt adjudication to be maintained in clearly legible condition throughout such posting period, and insuring that they are not altered, defaced or covered by any other material.

(c) Providing signed copies of said notice for posting by the employers involved herein, and by all the employers who are members of the Sheet Metal Employers’ Association of Detroit, as well as all employers who have exclusive hiring hall arrangements with Local 80, if these employers are willing, in places where notices to employees are customarily posted.

(d) Immediately signing and mailing copies of said notice to James Patton, Robert Petit, Remo Gizzi, Almond Dumas, Paul Kaczmar and Kenneth Maddox and to all employers with whom Local 80 has a signed agreement or for whom Local 80 maintains a hiring hall service.

(e) Making James Patton, Robert Petit, Remo Gizzi, Almond Dumas, Paul Kaczmar and Kenneth Maddox whole for any loss of backpay they may have suffered respectively as a result of the discrimination against them said backpay to be computed by the Board, subject to review by this Court.

(f) Taking the following affirmative action:

(1) Notify in writing, within 15 days of the issuance of this Order, each and every sheet metal contractor within its territorial jurisdiction with whom it does not have an exclusive referral service arrangement, that it is free to solicit, hire and retain employees including sheet metal workers, without clearance or referral from Local 80.

(2) Notify in writing, within 15 days of the issuance of this Order, each and every sheet metal contractor within its territorial jurisdiction with whom it has an exclusive referral service arrangement, that the Union will operate said exclusive referral service in a non-discriminatory manner and in accord with the terms and requirements set forth below.

(3) If in its referral system, the Union applies any criterion for determining the capabilities of persons to perform any job assignment within its jurisdiction, then said criteria shall be posted in a public place at its hall, shall not directly or indirectly inure to the advantage of members over non-members, and shall not directly or indirectly be based upon the prior use of the Union’s hiring hall.

(4) Record in permanent, non-loose leaf form, and post the name of each employer from whom a request for employees has been received, the date and time said request was received by the Union, the location of the project for which employees have been requested, and the number of employees requested.

(5) Maintain in non-loose leaf form permanent records of and post the name, address and telephone number of each applicant for referral to employment and the date and time said applicant applied for referral, irrespective of the applicant’s membership in Local 80, or lack thereof. Said applications for referral shall be maintained in the order in which they are submitted by said applicants.

(6) Refer applicants to employment when employees are requested by an employer in the order in which said applicants have submitted their applications, irrespective of their membership in Local 80, or lack thereof.

(7) Maintain in non-loose leaf form records of and post all referrals presented to applicants, containing the name of the applicant referred to employment, the name of the employer to whom referral is made and the specific project to which the applicant is being referred, the name or initials of the Union officer authorizing the referral, and the date and time that said applicant was referred to employment.

(8) Maintain in non-loose leaf form permanent records of and post all names of persons referred to employment in specific written or oral requests by name, from employers, and refer any person so requested without regard to membership in Local 80, or the lack thereof.

(9) Require periodic renewal of referrals to employment, if at all, only on a non-discriminatory basis, without regard to membership in Local 80 or lack there-cf.

(10) Refer discriminatees James Patton, Robert Petit, Remo Gizzi, Almond Dumas, Paul Kaczmar and Kenneth Maddox to the next available employment.

(11) Notify in writing within 60 days of the issuance of this Order, all persons whom the Union has referred to employment in the past five years, and inform said persons that they are being considered for eligibility and that they may indicate whether or not they wish to establish their eligibility for referral and employment in the work described in Article I, Section 1 of the collective bargaining agreement between the Union and the Sheet Metal Employers’ Association of Detroit.

(12) Notify in writing, within 60 days of the issuance of this Order, each and every sheet metal contractor with whom the Union has an exclusive referral service arrangement that the Union will refer -persons to employment without regard to their membership in Local 80 or the lack thereof and in accord with the terms set forth above.

(13) Notify in writing, within 60 days of the issuance of this Order each and every member of Local 80, each and every sheet metal worker referred to in paragraph 12 above, and each and every sheet metal contractor with whom the Union has a contract, that it will not henceforth in any way by action or inaction continue to commit, engage in, induce, encourage, permit or condone any conduct in violation of the underlying consent decree, this order, or the National Labor Relations Act.

(14) Post a copy of the foregoing provisions in a prominent place in the public portion of the Union’s offices, and keep said copy for inspection by any person.

(15) Commencing with July 1, 1974, submit to said Regional Director a written report, describing in detail the names of employers making requests for employees, the number of employees so requested, the names and number of persons applying for referral and the names and number of applicants actually referred to employment. Reports shall thereafter be filed every three months, containing the same information for that three month period, for a period of two years from July 1, 1974.

(g) Preserving and upon request, making available to the Board and its agents for examination and reproduction all records in its possession, custody or control which may be necessary or helpful to analyze, compute and determine the amounts of backpay due to employees under the terms of the Court’s order.

(h) Filing separate sworn statements with the Regional Director in writing within 10 days after the entry of the adjudication and again at the termination of the posting period showing what steps have been taken by Local 80 to comply with the Court’s direction and submitting to said Regional Director copies of the letters described in sub-paragraphs (f)l, 2, 12, 13 and 14, with lists of all persons to whom said lists have been mailed.

(i) Paying to petitioner, as court costs, reasonable counsel fees and all costs and expenditures incurred in the investigation, preparation, presentation, and final disposition of this proceeding to adjudge Local 80 in civil contempt.

In order to insure compliance with the foregoing provisions, it is further ordered that upon the failure of the respondent Union to purge itself of contempt as herein provided, this court shall impose a compliance fine of $5,000.00 on the respondent Union and a further compliance fine of $100.00 per day so long as such noneompliance continues. N.L.R.B. v. United Mine Workers, 393 F.2d 265 (6th Cir. 1968); N.L.R.B. v. Lynair, Inc., 380 F.2d 286 (6th Cir. 1967). The court will deal further with the matter by such other means as the court shall then determine, including the issuance of body attachment upon any officer, representative or agent responsible for such noncompliance. See N.L.R.B. v. Interurban Gas Corp. and Robert M. Hemphill, 401 F.2d 745 (6th Cir. 1968).

APPENDIX

Findings of Fact

1. On October 9, 1969, this Court entered a consent decree enforcing an unreported Board order dated September 10, 1969, against Local 80, its officers, representatives and agents. The Board’s order, as enforced, requires Respondent to cease and desist from, inter alia:

(a) Causing or attempting to cause ., any . . . employer-member of the Sheet Metal Employers’ Association of Detroit, or any other employer, to discriminate with regard to hire, tenure, or other terms or conditions of employment against . any . . . employee, in violation of Section 8(a) (3) of the Act and because such employee is not a member of Local Union No. 80, Sheet Metal Workers’ International Association, AFL-CIO.
* * * -x-
(c) Operating or maintaining a referral or other hiring system which discriminates against non-members or favors members of Local Union No. 80, Sheet Metal Workers’ International Association, AFL-CIO.
(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act.

(Pet. I, Pre-Trial Tr. 5).

2. The Court’s consent decree has been in full force and effect since its entry, and, at all times material herein, Local 80, its officers, representatives and agents have had notice and actual knowledge of the terms thereof (Pet. II, Ans. 2).

3. At all times material herein, the Sheet Metal Employers’ Association of Detroit (hereinafter referred to as “the Association”), a non-profit Michigan corporation, has been a grouping of employers engaged in the manufacture, fabrication, assembly, handling, erection, installation, dismantling, reconditioning, adjustment, alteration, repairing, and servicing of nonferrous sheet metal materials in the metropolitan Detroit area of the State of Michigan. The Association has bargained collectively with Local 80 on behalf of its employer-members, with respect to the hours, wages, rates of pay and conditions of employment of certain categories of sheet metal employees by its members, and has negotiated and executed collective-bargaining agreements with the Union (Pet. II, Ans. 3).

4. At all times material herein, the Union has had and abided by and continues to have and abide by, an unwritten understanding, practice and agreement with the Association, its employer-members, and all other employers with whom the Union maintains a collective bargaining agreement, including the employers named in, subsequent findings of fact, that written clearance, in the form of an assignment or referral slip, must be acquired from Local 80’s hiring hall by member and non-member alike before they are permitted to work within Local 80’s jurisdiction (Inter. 1(a) and (e), Ans. to Inter. 1(a) and (c), Tr. 12-13, 17-19, 20-21).

5. At all times material herein, Local 80, in the operation of its hiring hall, has maintained and continues to maintain at its office a list of applicants for referral and employment, commonly referred to as an “out-of-work list”, from which the Union refers said applicants to employers for employment as sheet metal workers (Pet. V. A, Inter. 5(a), Ans. to inter. 5(a)).

6. At all times material herein, Local 80 has denied and continues to deny to sheet metal workers who are not members of Local 80, the right to be placed on the “out-of-work list” when they are seeking employment within its territorial jurisidiction (Pet. V. B, Inter. 5(b), Ans. to Inter. 5(b), Tr. 21-22, 23, 255). By restricting its “out-of-work list” only to members, Local 80 operates its hiring hall for the benefit of members and makes no attempt to afford employment opportunities to non-members through this source (Tr. 33-34).

7. At all times material herein, Local 80 has refused and continues to refuse to refer or clear non-member sheet metal workers for employment unless and until they have first solicited their own jobs, obtained a written request for referral, commonly referred to as a “work request letter”, from a prospective employer, and submitted such written request to the Union for its approval. Members of Local 80 are exempt from this requirement as a condition of clearance or referral to a prospective employer (Pet. V. C and D, Ans. 8, Tr. 11-12, 242).

8. At all times material herein, sheet metal workers who are members of Locals of the Sheet Metal Workers’ International Association other than Local 80, commonly referred to as “travelers”, have been and continue to be forbidden to solicit their own jobs within Local 80’s jurisdiction until they have first registered with and been cleared by Local 80 (Inter. 7, Ans. to Inter. 7).

9. At all times material herein, nonmember sheet metal workers have been and continue to be required by Local 80 to renew, on a periodic basis, their referral or assignment slips in order to retain their employment while members need obtain new referral slips from Local 80 only when they change jobs (Inter. 8, 10(a), Ans. to Inter. 8, 10(a)).

10. As shown in the subsidiary findings below, Local 80, in the operation of its hiring hall, has discriminatorily failed and refused to refer non-members James Patton and Robert Petit to sheet metal jobs for which they have been specifically requested by their prospective employer and from which they had not been preempted by any other applicant for employment.

A. During the latter half of 1969, Virgil Firebaugh, vice-president of Firebaugh and Reynolds Roofing Co. (hereinafter referred to as “Firebaugh and Reynolds”), a member of the aforesaid Association, repeatedly requested Local 80 to refer sheet metal workers for employment (Tr. 81-82). When these requests went unfilled, said Virgil Firebaugh informed the Union by letter dated November 25, 1969, that he was prepared to hire men off the street and to send.them to the Union to obtain the appropriate referral slips (Tr. 82-83, P.X. 5).

B. On December 8, 1969, non-members Patton and Petit, who had previously worked for Firebaugh and Reynolds and who were qualified to perform sheet metal work, solicited employment from Virgil Firebaugh (Tr. 83-85, 88, 104-105, 136-137). Since work was available because the Union had failed to fill the employer’s requests, Firebaugh offered them employment contingent upon their obtaining the appropriate clearance from the Union (Tr. 84). Accordingly, Firebaugh gave each of them a work request letter which they were to submit to the Union in return for assignment slips (Tr. 85-87, P.X. 6, 7).

C. On December 8, 1969, Patton and Petit appeared at the Union’s hiring hall and sought referral slips to Firebaugh and Reynolds (Tr. 104-106). While Petit stood by, Patton submitted his work assignment letter to a secretary, who in turn, presented it to a Union business agent, Joseph Rivard (Tr. 105). Rivard then asked Patton what the latter wanted him to do with the letter, whereupon Patton asked for a work assignment (Tr. 106). Rivard replied, “Well, go to work if he wants to hire you” (Ibid.). Thereupon, Patton asserted, “Well, you know I can’t go to work without an assignment”, to which Rivard responded with laughter, turned his back and ended the conversation without issuing assignment slips to Patton or Petit (Ibid.).

D. Subsequent to the Union’s refusal to clear and refer Patton and Petit, Local 80 cleared one Barry Fijal, a member of the Union, for employment with Firebaugh and Reynolds (Tr. 204).

E. On the afternoon of December 8, 1969, Patton and Petit filed charges with the National , Labor Relations Board, alleging that Local 80 had violated Section 8(b)(1)(A) and (2) of the Act by discriminatorily refusing to refer them to available jobs with Firebaugh and Reynolds (Tr. 109-110). By letters dated December 15, 1969, David Klein, attorney for Local 80, informed ° Firebaugh and Reynolds, Patton and Petit that Local 80 had “no objection” to their being employed by Firebaugh and Reynolds if the proper work request letters were submitted (P.X. 8, 10). Thereafter, Patton and Petit again presented their letters to the Union, were issued referral slips and were hired by Firebaugh and Reynolds some two or three weeks after they were initially refused permits (Tr. 89-90).

11. As shown in the subsidiary findings below, Local 80 discriminatorily and arbitrarily failed and refused to renew the work assignment of James Patton, thereby causing Firebaugh and Reynolds to lay him off and to discriminate against him with regard to his tenure of employment.

A. On April 16, 1970, John Girolamo, a Business Agent for respondent Union, in the course of his duties, visited one of Firebaugh and Reynolds’ job sites where four sheet metal workers were employed, three of whom were union members and the fourth was James Patton, who was continuing to work under an assignment slip which in accordance with the discriminatory practice described in “9” above, had to be renewed monthly. (Tr. 150-151, 152, 116, 118, 134-135, P.X. 11). Girolamo informed Hillary Johnston, the job foreman, that since Local 80 men were out of work, the Union was not renewing “these boys’ assignments to continue work” (Tr. 150). Later that day, Johnston informed Patton that he had some “bad news”, that the Union was no longer renewing work permits and that Johnston would have to lay Patton off when his expired within the following week even though Patton was a good worker and Firebaugh and Reynolds needed men (Tr. 117, 151, 152).

B. On April 22, one day before his work assignment was to expire, Patton requested a renewal from Girolamo at the Union Hall (Tr. 118-119, P.X. 11). Girolamo refused, stating that the Union’s Executive Board had ordered him not to renew any assignments because there were many journeymen who were out of work (Tr. 119). After Patton was laid off on the following day, he filed amended charges with the National Labor Relations Board on April 30, 1970 (Tr. 121-122). Thereupon, within two weeks, Patton received another letter from the Union’s attorney, David Klein, stating the Union’s willingness to issue Patton the appropriate credentials (P.X. 12). Thereafter, Patton presented Klein’s letter and another request letter from Firebaugh and Reynolds to Local 80, received a new assignment from the Union and returned to work for Firebaugh and Reynolds (Tr. 123-124).

C. In June, 1970, Patton was laid off because of lack of work (Tr. 125). Thereafter, in August, Union Business Agent Rivard informed Patton by telephone that a job was available for him (Ibid.). By the time Patton arrived at the Union Hall to pick up his assignment, Rivard declined to issue it to him, stating that, in the meantime, a couple of journeymen had sought the job and were referred out in preference to Patton (Ibid.). Subsequently, in September or October of 1970, Virgil Firebaugh telephoned Rivard and requested permission from the Union to reemploy Patton and Petit on a large job which was undermanned (Tr. 92). Rivard stated that he would prefer that Firebaugh would not send Patton and Petit to the Union hall for permits “because of previous problems that the Union, these two persons had had” (Ibid.). Rivard added that he had “card-carrying members” available in the hall, who were eventually sent in preference to Patton and Pet-it, to fill Firebaugh’s request for men CTr 92-93).

12. As shown in the subsidiary findings below, Local 80 compelled Gizzi Metal Erector Corp. (hereinafter referred to as “Gizzi Metal”), with whom it had a collective bargaining agreement, to discriminatorily select a traveler, Remo Gizzi, for lay-off and to retain a member of Local 80.

A. On or about April 10, 1970, Gizzi Metal was forced to lay off part of its work force because one of Local 80’s members was unwilling to perform his job (Tr. 190-191). Thereupon Gizzi Metal laid off three Local 80 members and retained Remo Gizzi, a traveler from Local 73 who was also qualified to drive a truck and Donald Poyle, a member of Local 80 (Tr. 192-193). Thereafter, Gizzi Metal was fined in the sum of six hours pay, because it had retained an “out-of-town man” in preference to members of Local 80, notwithstanding the fact that the traveler who was retained, Remo Gizzi, was better qualified than those who were laid off and would have been otherwise retained (Tr. 193-197, P.X. 17).

B. On or about April 22, 1970, it was necessary for Gizzi Metal to lay off additional men, whereupon Amadeo Gizzi, president of the Company, telephoned Business Agent Girolamo, and asked him who was to be laid off first (Tr. 197-198). Girolamo answered, “Well, you know the out-of-town men go first .” (Tr. 198). Accordingly, Amadeo Gizzi was forced to lay off his brother, Remo Gizzi, the only “out-of-town man” on his payroll who would have otherwise been retained because of his sheet metal experience and his additional qualifications as a truekdriver (Ibid.).

13. As shown in the subsidiary findings below, Local 80, in the operation of its hiring hall, discriminatorily failed and refused to refer traveler Remo Gizzi to a sheet metal job for which he had been specifically requested by his prospective employer and from which he had not been preempted by any other applicant for employment.

A. After his layoff on April 22, Remo Gizzi attempted to transfer from Local 73 to Local 80 by submitting a transfer card (P.X. 15) to Thomas Crawford, Secretary-Treasurer for Local 80 (Tr. 174-175) Crawford accepted the transfer card and promised to present it to the Union’s Executive Board during the month of May (Tr. 176). When Gizzi then asked for an assignment slip, Crawford declined, asserting that “he had about 60 men out of work in Local 80” (Tr. 175).

B. Thereafter, Remo Gizzi obtained a work request letter from his brother, Amadeo, which he submitted to Union Business Agent A1 Tibbs on or about April 24 (Tr. 177-178). Tibbs refused to issue Gizzi an assignment slip, echoing Crawford’s assertion that the Union had 60 men out of work and further stating: “I can’t even put my boys to work. I can’t do nothing for you .” (Tr. 178). Despite this assertion, the Union adduced no evidence that Local 80 men had applied for employment to Gizzi Metal before the appearance of Remo Gizzi and therefore took preference over Remo, or, in fact, that any Local 80 men had been referred to Gizzi Metal at all.

C. Subsequently, Remo Gizzi filed a charge with the National Labor Relations Board, alleging that the Union’s actions were in violation of Section 8(b)(1)(A) and (2) of the Act (Tr. 179). Shortly thereafter, Gizzi received a telephone call from William Styles, a business agent for Local 80, and was informed that he could pick up his assignment slip on the following morning (Tr. 179-180). On the next day, Gizzi went to the hiring hall, and was given the assignment by Styles who said, “Now you can go to work.” Then, with a pat on the back, Styles added, “What about dropping the charges now, what about those charges ?” Gizzi answered that he could not do anything about that now, and, in turn, asked Styles about his transfer to Local 80. Styles answered that that was not his “department” (Tr. 180). Within “a couple of months” after Remo was rehired, Amadeo Gizzi met William Bradfield, the business manager of Local 80, in Local 80’s parking lot (Tr. 202-203). During the ensuing conversation, Bradfield asked, “What are you trying to do to me?” (Tr. 203). When Amadeo asked “What am I doing?” Bradfield answered, “Well, talk to Remo, see if he could drop the charges” (Tr. 203).

14. On April 21 and 22, 1971, Local 80 failed and refused to grant a referral or assignment slip to Almond Dumas, a non-member who had been offered a job as a sheet metal worker by Ring Brothers Heating Company (Tr. 161-163). Dumas was denied clearance to this position because of the application of the discriminatory rule requiring non-members to submit a work request letter to the Union before they could receive an assignment slip (see Paragraph 7, supra.). Dumas was unable to persuade his prospective employer to issue him a work request letter, a practice with which Ring Brothers had heretofore been unfamiliar (Tr. 164-167).

15. As shown in the subsidiary findings below, Local 80, in the operation of its hiring hall, discriminatorily failed and refused to refer non-members Kenneth Maddox and Paul Kaczmar to sheet metal jobs for which they had been specifically requested by their employer and from which they had not been preempted by any other applicant for employment.

A. During the winter of 1969, Mil-brand Maintenance, Inc. (hereinafter referred to as “Milbrand”), a member of the aforesaid Association, was experiencing considerable difficulty in obtaining sheet metal workers through Local 80’s hiring hall (Tr. 37-38). This critical shortage of sheet metal workers continued through the month of December, when, on December 29, Milbrand by James Dixon, president of the Company, wrote to Business Manager Bradfield, “in effect begging for people” (Tr. 42, P.X. 4).

B. Maddox and Kaczmar were roofers in Milbrand’s employ who possessed extensive experience and qualifications in the sheet metal trade (Tr. 38, 39, 57). In an effort to obtain their services as sheet metal workers, Ralph Catana, Mil-brand’s superintendent, furnished them with a copy of a National Labor Relations Board Notice stating that Local 80 could not discriminate in their hiring practices (Tr. 59). Then, in the first week in December, Maddox and Kaczmar, accompanied by Milbrand’s Union steward, presented themselves at Local 80’s hiring hall in an attempt to obtain referral as sheet metal workers (Tr. 60). First, they submitted the Notice to Business Agent Tibbs who said, “That’s nothing, we’ve got one tacked up over here,” as he pointed to the Union’s bulletin board, where the same notice was hanging (Tr. 60). Thereupon, the Union steward asked that Maddox and Kaczmar be furnished clearance so that they could do sheet metal work (Tr. 61). Tibbs refused, insisting that he had to take the matter up with Bradfield (Ibid.).

C. On December 10, 1969, Maddox and Kaczmar were given work request letters by Bruce Carty, the vice-president of the Company (Tr. 38-41, P.X. 2, 3). Thereafter, they submitted these letters to Business Agent Tibbs, who, once again refused to issue them the necessary credentials, falsely asserting that this was within Bradfield’s exclusive authority (Tr. 63, 65, 253) and that Bradfield was ostensibly unavailable. Maddox and Kaczmar made yet a third visit to the hiring hall, and were again refused referral, with Tibbs falsely stating that Milbrand had not requested any men (Tr. 65-66). Tibbs added that he would not provide Kaczmar and Maddox with a referral so long as any Local 80 members were out of work (Tr. 65).

D. Since Milbrand’s urgent need for sheet metal workers remained unfilled by Local 80 (Tr. 44-45, 50), the employer took the “desperation move” of assigning Kaczmar and Maddox to perform sheet metal work without prior clearance from the Union (Tr. 45). Accordingly, on February 5 or 6, 1970, they openly began to work on sheet metal on a site known as the “McManus Job” (Tr. 66). Thereafter, they were asked for their sheet metal cards by Local 80’s steward on the job (Tr. 67). When they could not produce their cards, the steward asked them to leave the job which they refused to do (Ibid.). At the conclusion of their first day’s work, Kaczmar and Maddox discovered that the Company truck which was reserved for their use had three flat tires and could not be driven (Tr. 67-68).

E. On the following day, after they had worked for about an hour, Business Agent Rivard appeared on the scene and ordered Kaczmar and Maddox to “Stop right now” (Tr. 68). When they refused, Rivard said, “You guys better stop right now if you ever want to see your wives again” (Tr. 68). Thereupon, Kaczmar asked, “You mean you’re telling us to stop work right now, that we can’t work”, whereupon Rivard replied, “Yes, you’d better believe it if you ever want to see your wives again” (Tr. 68, 69). Maddox then asked, “Are you threatening me?” and Rivard answered, “You’re goddam right I’m threatening you” (Tr. 74-75). Maddox and Kaczmar have performed no sheet metal work since their conversation with Rivard (Tr. 69).

F. During the fall of 1971, Virgil Firebaugh, in an attempt to hire additional sheet metal workers, issued a work request letter to Kenneth Maddox (Tr. 69, 96). Thereafter, Maddox submitted the letter to Business Agent Tibbs and requested referral to employment with Firebaugh and Reynolds (Tr. 69-70). Tibbs refused to grant Maddox an assignment slip, stating, “I’m sorry but there isn’t much I can do. We’ve got a hundred to two hundred men out of work” (Tr. 70). Therefore, Maddox was not employed by Firebaugh and Reynolds. The Union adduced no evidence to show that any member’s claims to employment were paramount to Maddox’s, nor that any Local 80 man was sent to Firebaugh and Reynolds in Maddox’s stead.

16. Local 80’s hiring hall is the largest source of sheet metal workers within its jurisdiction (Tr. 348-349, P.X. 1, p. 76).

17. By requiring all sheet metal workers to obtain written clearance from Local 80 before they are permitted to work within its jurisdiction, supra, paragraph 4, Local 80 has established an exclusive hiring hall, or an exclusive referral service.

18. As shown in the subsidiary findings below, and in accordance with the Court’s statement at the conclusion of the hearing, that the admissions of Respondent’s witness Styles, established “that there was discrimination” (Tr. 356), Local 80, in the day-to-day operation of its hiring hall, has engaged in a consistent and uninterrupted pattern of discrimination and causing employers to discriminate against non-members and travelers, and restraining them in the exercise of their Section 7 rights, and causing or attempting to cause employers to discriminate against them. More specifically,

A. By reserving the “out of work list” for the exclusive use of its members, supra, paragraphs 5 and 6, Local 80 has excluded non-members and travelers from one of the major functions and benefits of the hall, and has thereby discriminated against them.

B. By requiring only non-members to obtain “work request letters” from their prospective employers before the hiring hall will issue them an assignment slip, supra, paragraph 7, Local 80 restricted their right to obtain employment and has thereby discriminated against them.

C. By maintaining a rule forbidding members of sister locals from soliciting work on their own, coupled with their exclusion from the “out of work list”, supra, paragraph 8, Local 80 has severely limited the employment opportunities of travelers and thereby discriminated against them.

D. By requiring only non-members to regularly and periodically renew their assignment slips, supra, paragraph 9, Local 80 has encumbered the right of non-members to retain employment, thereby discriminating against them.

19. As shown in the subsidiary findings below, Local 80, in the operation of its hiring hall, has repeatedly discriminated against non-members James Patton, Robert Petit, Kenneth Maddox, Paul Kaczmar and Almond Dumas and traveler Remo Gizzi by refusing to refer them to employment and by causing their discharge because they were not members of the Union despite the fact that they were qualified to perform sheet metal work in the eyes of their employers and despite the fact that they were not preempted by any other applicants for employment. More specifically,

A. Local 80 failed and refused to issue non-members James Patton and Robert Petit referral or assignment slips allowing them to perform sheet metal work although they had complied with the Union’s discriminatory work request letter rule and notwithstanding the fact that they were qualified to perform sheet metal work and that they were not preempted by any other applicants for employment.

B. Local 80 failed and refused to abide by its own discriminatory permit renewal rule by failing and refusing to renew the work assignment of James .Patton thereby causing his lay off and the corresponding retention of Local 80 members in preference to non-members.

C. Local 80 failed and refused to refer James Patton and Robert Petit when they were specifically requested by their prospective employer because they had filed unfair labor practices against the Union.

D. Local 80 caused the discriminatory lay off of traveler Remo Gizzi by fining his employer for retaining him in preference to a Local 80 member and by advising the employer that when the occasion arose, the out-of-town man must be laid off first.

E. Local 80 failed and refused to issue Remo Gizzi a referral or assignment slip allowing him to be reemployed although he complied with the Union’s discriminatory work request letter rule and notwithstanding the fact that he was qualified to perform sheet metal work and was not preempted by any other applicant for employment.

F. Local 80 failed and refused to issue non-member Almond Dumas a referral or assignment slip clearing him for sheet metal work, notwithstanding that his prospective employer was ready and willing to hire him as a qualified sheet metal worker and notwithstanding that he was not preempted by any other applicant for employment.

G. Local 80 repeatedly failed and refused to issue non-members Kenneth Maddox and Paul Kaczmar referral or assignment slips, thus preventing them from performing sheet metal work although they had complied with the Union’s discriminatory work request letter rule and notwithstanding the fact that they were not preempted by any other applicants for employment.

H. Local 80 underscored its arbitrary, capricious and discriminatory conduct against Kaczmar and Maddox with threats of bodily violence.

Conclusions of Law

By the conduct set forth in findings 5 through 15 and 18-19, Respondent has violated and disobeyed the decree of the Court of Appeals, by restraining and. coercing employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, and by causing or attempting to cause employers to discriminate against employees in violation of Sections 8(b)(1)(A) and 8(b) (2) of the National Labor Relations Act respectively, and, for such disobedience, it is recommended by the Special Master that the Court enter an order adjudging Local 80, its officers, representatives and agents, in civil contempt, and directing that the Union be required to purge itself as prayed in the Board’s Second Amended Petition for Adjudication in .Civil Contempt.

      . Gizzi liad previously been informed by a Local 73 business agent that he should have no difficulty in meeting the qualifications set fortli in the International’s Constitution, and in effectively transferring to Local 80 (Tr. 173).


author:
HEANEY, Circuit Judge,
      WEBSTER, Circuit Judge

text:
    LAUNDRY, DRY CLEANING AND DYE HOUSE WORKERS INTERNATIONAL UNION, LOCAL 93, OF SPRINGFIELD, MISSOURI, Appellee, v. Robert M. MAHONEY et al., Appellants.
    No. 72-1731.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 12, 1973.
    Decided Jan. 22, 1974.
    Rehearing and Rehearing En Banc Denied Feb. 13, 1974.

      Donald W. Jones, Springfield, Mo., for appellants.
    Benjamin J. Francka, Springfield, Mo., for appellee.
    Before MEHAFFY, Chief Judge, and GIBSON, LAY, HEANEY, BRIGHT, ROSS, STEPHENSON and WEBSTER, Circuit Judges, en banc.

   HEANEY, Circuit Judge,

with whom LAY, BRIGHT and WEBSTER, Circuit Judges, join.

This matter comes before the Court en banc on a petition for rehearing. The sole issue is whether the trial court erred in requiring the parties to a collective bargaining agreement to submit a mid-contract wage dispute to binding arbitration.

On August 8, 1968, the Union entered into a collective bargaining agreement with the then owner of the business. Article XX of the agreement provides:

Section 1. This agreement shall remain in full force and effect until August 8, 1973, and from year to year thereafter, unless sixty (60) days prior to August 8, 1973, or any year thereafter, the Union notifies the Employer or the Employer notifies the Union of its desire to terminate or modify this Agreement. This notice must be written.
Section 2. Either the Employer or the Union shall have the right as of August 8, 1971, to reopen for negotiation on the subject of wages and seniority only, upon either party giving written notice to the other at least sixty (60) days prior to such reopening date. In the absence of such notice, the existing conditions shall continue to remain in effect until the expiration date of the Agreement.

Thereafter, most of the assets of the business were sold to the Bormon Investment Company, and that firm became obligated to abide by the terms of the agreement as a successor employer.

The Union and the Employer exercised their option to reopen the contract on wages and seniority by giving a timely notice. The parties were unable to reach an agreement on either issue. The Union demanded that the unresolved issues be submitted to arbitration. The Employer refused on the grounds that it was not obligated to arbitrate these issues. The Union then brought an action seeking to require the Employer to submit the dispute to arbitration.

The agreement generally establishes wage rates and working conditions. It specifically provides:

ARTICLE I.
Purpose
Section 1. It is the intent and purpose of the parties hereto, to set forth herein their basic agreement covering wages, hours of work, and conditions of employment to be observed between the parties hereto, and to provide procedures for the prompt, and equitable adjustment of all grievances and disputes arising between the Employer and the Union or any employee or employees covered by this Agreement.
* * * * * *
ARTICLE XIII.
No Strike or Lockout
Section 1. There shall be no strikes, stoppages, slowdowns, or concerted activity interrupting or interfering with production, or lockouts, for any reason whatsoever during the life of this Agreement.

It also contains a grievance and arbitration clause which reads as follows:

ARTICLE XIV.
Grievance and Arbitration
Section 1. It is hereby agreed that the Union may have one (1) duly accredited representative to be known as the “Steward” in each plant to be selected by the Union. It shall be his or her duty to receive complaints and to present them to the management. * * *
Section 2. In order to determine the existence and/or validity of a grievance, the Steward shall notify the Plant Manager or his designated representative of the charge by an employee, and as soon as practicable, the Steward and the Employer representative shall discuss the matter with the view of resolving the issue if possible. * * *
Section 3. If the grievance is not settled in the manner set forth in Section 2 within two (2) working days after the Steward has first discussed it with the Plant Manager, it shall be reduced to writing and considered between the Business Agent and Company representatives.
Section U. If not settled within five (5) working days as set forth in Section 3, the matter shall be referred to arbitration.
Section 5. Each party shall select an arbitrator [.] * * '* Should there be no agreement between the two arbitrators as to the third arbitrator, application shall be made to the Federal Mediation and Conciliation Service in Washington, D. C., for a panel of five (5) nominees. The parties shall alternate in striking two names each and the remaining shall be the impartial arbitrator. The arbitrator shall not have the power to add to, subtract from, or change the terms of the contract. The decision of a majority of the panel shall be final and binding. * * *
* * * * * *
ARTICLE XVIII.
Savings Clause
Section 1. If any law now existing or hereinafter enacted, or any proclamation, regulation, or edict of any state or national agency shall invalidate any portion of this Agreement, the entire Agreement shall not be invalidated, and either party hereto, upon notice to the other, may reopen for negotiation the invalidated portion, and if agreement thereon cannot be reached, within thirty (30) days, either party may submit the matter to arbitration as herein provided.

The matter was submitted to the trial court on cross-motions for summary judgment. The court initially determined that the question of arbitrability was for it to decide. It then held, on the authority of the United Steel Workers v. Warrior and Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), that the dispute was arbitrable because no forceful evidence of an intent or purpose to exclude the dispute from arbitration was evidenced.

The Employer argues on appeal: (1) that they are under no obligation to arbitrate any wage and seniority issues; (2) that their only obligation under the agreement is to negotiate on the two issues, and they have fulfilled that obligation; (3) that arbitration is only available to resolve employee grievances, and then only after such grievances have been processed in accordance with Sections 1, 2, 3 and 4 of Article XIV of the agreement; and (4) that, here, no grievance exists, and that the dispute between the Employer and the Union was not processed in accordance with the above sections.

The trial court correctly held that the issue of arbitrability was one for it to decide. John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Drake Bakeries v. Local 50, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962).

The trial court also properly decided that the midterm contract dispute between the Employer and the Union over wages and seniority is an arbitrable one.

Warrior teaches:

The Congress, however, has by § 301 of the Labor Management Relations Act, assigned the courts the duty of determining whether the reluctant party has breached his promise to arbitrate. For arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. Yet, to be consistent with congressional policy in favor of settlement of disputes by the parties through the machinery of arbitration, the judicial inquiry under § 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or agreed to give the arbitrator power to make the award he made. An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible to an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.
* * -X- * -X- -X-
* * * In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad. Since any attempt by a court to infer such a purpose necessarily comprehends the merits, the court should view with suspicion an attempt to persuade it to become entangled in the construction of the substantive provisions of a labor agreement, even through the back door of interpreting the arbitration clause, when the alternative is to utilize the services of an arbitrator.

United Steel Workers v. Warrior and Gulf Navigation Co., 363 U.S. supra at 582, 584-585, 80 S.Ct. 1347, 1353, 1355. Accord, Local Union No. 4, IBEW, AFL-CIO v. Radio Thirteen-Eighty, Inc., 469 F.2d 610 (8th Cir. 1972) ; Builders Ass’n of Kansas City v. Greater Kansas City Lab. D.C., 326 F.2d 867 (8th Cir.), cert. denied, 377 U.S. 917, 84 S.Ct. 1182, 12 L.Ed.2d 186 (1964).

We are convinced, as was the trial court, that it cannot be said with positive assurance that the arbitration clause is not susceptible to an interpretation that covers the asserted dispute. Although the “Grievance and Arbitration” clause speaks of employee grievances, the “purpose” clause of the agreement asserts that the agreement is intended to provide “procedures for the * * * equitable adjustment of all grievances and disputes arising between the Employer and the Union * * * ”. If the contract is to be read as a whole, as it must, Montana-Dakota Utilities Co. v. N. L. R. B., 455 F.2d 1088 (8th Cir. 1972), effect should be given to this language. The savings clause speaks of submitting matters other than grievances to “arbitration as herein provided,” thus negating an intent to limit the arbitration clause in the manner suggested by the appellant. Moreover, the collective bargaining agreement includes an absolute “no strike, no lockout” clause. This inclusion lends support to the view that the collective bargaining agreement was intended to completely effectuate the federal policy of promoting industrial stabilization through collective bargaining.

In summary, we not only fail to find forceful evidence of a purpose to exclude the mid-contract wage dispute from arbitration, but we find evidence of a contrary purpose. The Warrior rule is thus triggered.

Concern has been expressed that the effect of this opinion will be to make midterm wage disputes in multi-year contracts subject to arbitration whenever a collective bargaining agreement contains an arbitration and a no-strike clause. We find no cause for such concern. The parties to a collective bargaining agreement can, by plain language, exclude such dispute from arbitration. They can lift the “no strike, no lockout” pledge in such circumstances, see, United Steel Workers v. Warrior and Gulf Navigation Co., supra, n. 5, 579, 80 S.Ct. 1347, or permit the pledge to remain in effect and require the dispute to be resolved by bargaining or not at all. All that is necessary is that the parties make their intent to exclude arbitration clear. They have not done so here.

We find no merit to the Employer’s contention that the judgment against three minor defendants should be set aside because it was imposed on them without the prior appointment of a guardian ad litem. The first exception to Rule 17(b), 28 U.S.C., permits a partnership to be sued in its common name for the purpose of enforcing against it a substantive right existing under the laws of the United States. The right to arbitrate is such a right.

Moreover, the trial court properly found that the minors’ interests were adequately protected by the presence of their parents as defendants. See, Westcott v. United States Fidelity and Guaranty Company, 158 F.2d 20 (4th Cir. 1946); Rutland, Administrator v. Sikes, et al., 203 F.Supp. 276 (E.D.S.C.), aff’d, 311 F.2d 538 (4th Cir. 1962), cert. denied, 374 U.S. 830, 83 S.Ct. 1871, 10 L.Ed.2d 1053 (1963).

The judgment below is affirmed by an equally divided court.

WEBSTER, Circuit Judge

(concurring).

I concur in Judge Heaney’s opinion on the issue of arbitrability, and in the result. Because Judge Heaney’s opinion does not deal with the contractual limitations on the powers of the arbitrator, and because Judge Ross sees this clause as critical to his analysis, I feel obliged to state my views on that subject.

Given the now clearly stated Congressional and judicial policy favoring the use of arbitration in exchange for a no-strike clause in the collective bargaining arena, it does not follow that the arbitrator can or will in each case grant the relief sought by the party aggrieved. We do not know, for example, whether the arbitrator will determine that a reopened issue is an exception to the no-strike provision. Thus, he might, under appropriate findings, order the parties to resume bargaining or hold that the union is free to strike absent a resolution of the dispute. Or he may, upon an examination of the contract in the light of the federal labor common law, Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), hold that he is without power to grant certain relief requested by the union.

In F & M Schaefer Brewing Co. v. Local 49, International Union of United Brewery, etc., 420 F.2d 854 (2d Cir. 1970), the court reversed the trial court’s order staying arbitration. The trial court had held that since the arbitrator was not given the power to fix new rates, submission of the grievance to him would require him to exceed his powers. The Second Circuit disagreed, saying that this question “would go only to the remedy . . .. ” 420 F.2d at 856.

[I]n Torrington, we pointed out that the question of the arbitrator’s authority to make a particular award was best left to the arbitrator initially, so that the court could receive “the benefit of the arbitrator’s interpretative skills as to * * * his contractual authority.” 362 F.2d at 680 n. 6 Here, we are asked to prevent arbitration in the first place. To do so on the theory that we should not require a useless act misconceives the possibilities open to an arbitrator and ignores the explicit lesson of the Trilogy . . . that “[t]he processing of even frivolous claims may have therapeutic values.”

420 F.2d at 856. (footnote added)

In Tobacco Workers International Union, Local 317 v. Lorillard Corp., 448 F.2d 949 (4th Cir. 1971), the Fourth Circuit construed an almost identical contractual limitation in this way:

The quoted sentence does not, we think, limit the arbitrator’s “jurisdiction” over those grievances which are subject to arbitration. It is not a limitation on arbitrability, but is instead merely a limitation on the arbitrator’s power to fashion an award. Carey v. General Electric Co., 315 F.2d 499 (2d Cir. 1963), cert. denied, 377 U.S. 908, 84 S.Ct. 1162, 12 L.Ed.2d 179 (1964). As such it is inappropriate for a court to decide that such a clause excludes the remedy sought prior to arbitration. It is best to leave this question to the arbitrator initially in order to receive “the benefit of the arbitrator’s interpretive skills as to * * * his contractual authority.” Torrington Co. v. Metal Products Workers Union Local 1645, 362 F.2d 677, 680 n. 6 (2d Cir. 1966).

448 F.2d at 955.

And in International Ass’n of Machinists v. Howmet Corp., 466 F.2d 1249 (9th Cir. 1972), the Ninth Circuit said:

We agree with the Fourth Circuit that a clause limiting the power of the arbitrator to add to, subtract from, or alter the provisions of the agreement does not affect the jurisdiction of the arbitrator, but merely limits his power to fashion an award. Tobacco Workers International Union, Local 317 v. Lorillard Corp., 4 Cir., 1971, 448 F.2d 949, 955.

466 F.2d at 1252-53.

The point, it seems to me, is that in this case there is no “clear and unambiguous” evidence of non-arbitrability, and we are bound by the Steelworkers’ trilogy in such circumstances to hold the issue arbitrable, as Judge Heaney has well demonstrated. We are not to reach the merits by interpretating the scope of the arbitrator’s power to award specific relief, or by drawing an inference of non-arbitrability from a contractual limitation on his power in relation to his duties. The courts will be available to test the lawfulness of the arbitrator’s decision in an enforcement proceeding. We need not presently assume that he will abuse his contractual power to resolve disputes, nor should the scope of that power be confused with the arbitrability of the dispute.

ROSS, Circuit Judge, with whom MEHAFFY, Chief Judge, and GIBSON and STEPHENSON, Circuit Judges, join.

We accept the statement of the case contained in Judge Heaney’s opinion. However, we believe that it is clear from reading the contract as a whole that at the time it was negotiated it was not intended by either party to provide for arbitration of wage disputes arising out of the reopening clause. It is clear from Judge Heaney’s opinion that Articles I, XIII, XIV, XVIII, and XX are the clauses he relies upon in his determination that the arbitration clause is susceptible to the interpretation that it covers wage disputes under the reopening clause. We do not read those clauses in the same way.

Article I, the purpose clause, merely indicates that the contract as a whole, shall “provide procedures for the prompt, and equitable adjustment of all grievances and disputes arising between the Employer and the Union or any employee or employees covered by this Agreement.” It does not say nor imply, in our opinion, that all disputes shall be submitted to arbitration. The contract specifically provides for negotiation of wage disputes on reopening in Article XX, and arbitration of grievances in Article XIV.

A careful reading of Article XIV, as heretofore set forth, shows clearly that it is a narrow arbitration clause limited in its scope to grievances between the employees and management. The reference to the Steward in Section 1, conferences between the Steward and the Plant Manager in Section 2, written submission and consideration by the Business Agent and Company representatives in Section 3, and reference to arbitration if there is no solution after five (5) working days in Sections 4 and 5 make it absolutely clear that the intention of the parties was to provide for arbitration of employee grievances and not wage disputes on reopening. There is no reference in this clause to a Union Bargaining Committee—only to a Union Steward and Union Business Agent, and if there was any doubt whatsoever that this clause was not intended to apply to wage negotiations, which we do not believe there is, it is laid to rest finally and absolutely by the insertion of this sentence: “The arbitrator shall not have the power to add to, subtract from, or change the terms of the contract.” Nothing in Judge Heaney’s opinion or in the briefs provides a logical explanation of how an arbitrator can change the wages of the employees of this company without specifically violating this very explicit provision of the Agreement.

Article XVIII, the savings clause, is an express recognition by the parties that the arbitration clause does not cover all disputes under the contract. It makes an exception to the narrow scope of arbitration provided in Article XIV and specifically provides for arbitration in cases in which some portion of the Agreement is invalidated by law. The failure of the parties to similarly provide for arbitration of wage disputes on reopening in Article XX, after providing for it specifically for employee grievances and invalidation of a portion of the contract by law, is an additional indication to us that it was not intended to apply to wage disputes on reopening.

It is apparent to us from an examination of the entire contract that the Union, having for some reason failed to reserve the right to strike if wage negotiations on reopening proved fruitless, decided to ask the federal courts to make up for this negotiating deficiency by construing the contract to include wage disputes as an arbitrable matter, in direct contravention of the obvious intent of the Agreement.

The only possible valid reason we can perceive for requiring arbitration of this wage dispute is if Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), and Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960) stand for the proposition that the failure to specifically exclude wage disputes from arbitration in any labor contract automatically makes wage disputes subject to arbitration. We do not believe this was the intent of either case.

The Steelworkers cases are often cited for the proposition that the no-strike clause is the quid pro quo for the arbitration clause and Warrior is cited for the proposition that arbitration should be required “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Steelworkers v. Warrior & Gulf Co., supra, 363 U.S. at 582-583, 80 S.Ct. at 1353. But we should remember that this language must be read in light of the facts of each case and in light of other equally strong language that “a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. Id. at 582, 80 S.Ct. at 1353 (emphasis supplied).

American Mfg. Co. involved a grievance filed on behalf of an employee over reemployment rights after a disabling accident. The contract provided that “[a]ny disputes, misunderstandings, differences or grievances arising between the parties as to the meaning, interpretation and application of the provisions of this agreement, which are not adjusted as herein provided, may be submitted to the Board of Arbitration for decision. .” The employer relied on a clause which stated as follows:

The Management of the works, the direction of the working force, plant layout and routine of work, including the right to hire, suspend, transfer, discharge or otherwise discipline any employee for cause, such cause being: infraction of company rules, inefficiency, insubordination, contagious disease harmful to others, and any other ground or reason that would tend to reduce or impair the efficiency of plant operation; and to lay off employees because of lack of work, is reserved to the Company, provided it does not conflict with this agreement.

Steelworkers v. American Mfg. Co., supra, 363 U.S. at 565, n. 2, 80 S.Ct. at 1345. The normal grievance procedures had been followed prior to suit.

Warrior involved a dispute over the right of the company to subcontract part of its work resulting in a partial reduction in the working force. The arbitration clause of the contract provided in part:

Should differences arise between the Company and the Union or its members employed by the Company as to the meaning and application of the provisions of this Agreement, or should any local trouble of any kind arise, there shall be no suspension of work on account of such differences but an earnest effort shall be made to settle such differences immediately in the following manner: . . .

Steelworkers v. Warrior & Gulf Co., supra, 363 U.S. at 576, 80 S.Ct. at 1349. The company relied upon a paragraph in the agreement which stated that “[M]atters which are strictly a function of management shall not be subject to arbitration under this section.” Id. at 588, 80 S.Ct. at 1356. The normal grievance procedures had been followed prior to suit.

In this case the dispute concerned failure to successfully negotiate increased wages for all employees under a wage reopening clause. The two arbitration clauses contained no general language similar to the Warrior or American Mfg. Co. cases. The language was very specific in referring first to grievances of employees and the presentation of those grievances to management and later to arbitration; and second to the specific question of portions of the contract which might later be invalidated by law. The contract specifically provided that wages on reopening were- to be negotiated (rather than arbitrated) and the arbitration clause contained a provision prohibiting the arbitrator from adding to, subtracting from or changing the terms of the contract. The specified grievance procedures were not followed and after negotiations broke down the union filed its suit to compel arbitration.

This case can be distinguished from American Mfg. Co. and Warrior in four significant ways: first, in the wording of the arbitration clause; second, in the subject matter of the controversy; third, in the strength and clarity of the clauses relied upon by management to show arbitration was not intended; and, fourth, in the grievance procedures followed in Warrior and American Mfg. Co. and ignored here. The distinctions are both obvious and significant. In American Mfg. Co. and Warrior the wording of the arbitration clause was broad. Here it is narrow and specific. In American Mfg. Co. and Warrior the grievances related to questions which may or may not have been reserved to management in the contract. Certainly in each case there was a gray area involved. In this ease the dispute related to wages on reopening, a subject traditionally reserved to negotiations. In Warrior the employer relied on clauses in which the rights of management were referred to but not specifically defined. In American Mfg. Co. the clause relied on by the employer did not really cover the question presented by the arbitration. But by the terms of the agreement in this case the arbitrator was expressly forbidden to change any term of the contract. In Warrior and American Mfg. Co. normal grievance procedures were followed prior to suit. In this case no pretext was made by the union of following the grievance procedures specified in the contract.

These distinctions become especially significant in light of some of the holdings of Warrior. First, as heretofore stated, the majority opinion made it clear that the court must first determine whether or not the parties have contracted to arbitrate a particular dispute:

The Congress, however, has by § 301 of the Labor Management Relations Act, assigned the courts the duty of determining whether the reluctant party has breached his promise to arbitrate. For arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.

Steelworkers v. Warrior & Gulf Co., supra, 363 U.S. at 582, 80 S.Ct. at 1353 (emphasis supplied).

This holding, it should be noted, was a predicate for the holding which indicated that doubts should be resolved in favor of coverage. Resolving doubts under a contract is obviously not the same as stating that anything which is not excluded is, by implication, included. In our opinion, there is simply no doubt to be. resolved in this case.

Second, the Court in Warrior placed special emphasis on the broad arbitration clause in the Warrior contract when it said:

In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where,' as here, the exclusion clause is vague and the arbitration clause quite broad.

Id. at 584-585, 80 S.Ct. at 1354 (emphasis added).

In American Mfg. Co., Justice Brennan, concurring, stated:

The Court rightly concludes that appropriate regard for the national labor policy and the special factors relevant to the labor arbitral process, admonish that judicial inquiry into the merits of this grievance should be limited to the search for an explicit provision which brings the grievance under the cover of the exclusion clause since “the exclusion clause is vague and arbitration clause quite broad.”

Steelworkers v. American Mfg. Co., supra, 363 U.S. at 572, 80 S.Ct. at 1365 (emphasis supplied).

As heretofore indicated, the arbitration clause in this case is very narrow and the exclusion clause is certainly not vague.

Third, in both Warrior and American Mfg. Co. the Court held that it was not really clear under the contract whether the particular dispute in issue involved a matter specifically reserved to management. It stated in Warrior:

Respondent claims that the contracting out of work falls within this category. Contracting out work is the basis of many grievances; and that type of claim is grist in the mills of the arbitrators.

Steelworkers v. Warrior & Gulf Co., supra, 363 U.S. at 584, 80 S.Ct. at 1354. And in American Mfg. Co. the Court stated:

The union claimed in this case that the company had violated a specific provision of the contract. The company took the position that it had not violated that clause. There was, therefore, a dispute between the parties as to “the meaning, interpretation and application” of the collective bargaining agreement.

Steelworkers v. American Mfg. Co., supra, 363 U.S. at 569, 80 S.Ct. at 1347.

No such interpretation of the contract is possible in this case. The subject of wages is traditionally reserved to negotiation and is not normally subject to arbitration.

Since the Steelworkers’ trilogy in 1960, there have been no cases decided in federal courts involving this precise issue that have been called to our attention. However, there have been at least two arbitrator’s decisions on cases very similar to this one.

In Hughes Tool Co., 36 Lab.Arb. 1125 (1960) the arbitrator held that the contract could not be construed to require arbitration of wages on reopening in a factual situation similar to this case. In that case the arbitrator placed special emphasis on a clause which provided that an arbitrator could not change or modify any provision of the agreement. In Hughes Tool Co. there was also a much broader arbitration clause than is present in this case.

In Rose-Derry Ohio, Inc., 49 Lab.Arb. 40 (1967) the opposite result was reached but great emphasis was placed on the fact that the arbitration clause was very broad providing that “any and all . . disputes or controversies . including any matter relating to wages . . . not specifically covered herein, shall be . resolved in the following manner.” Rose-Derry Ohio, Inc., supra, 49 Lab.Arb. at 44 (emphasis supplied). This clause alone serves to distinguish that ease from this one.

For these reasons we feel it is clear that this case can be logically distinguished from Warrior and American Mfg. Co. and believe that the trial court’s decision represents an unwarranted extension of the holding of those cases.

One further word seems appropriate about the quid pro quo theory. In our opinion this theory was best described by Justice White in his majority opinion in Drake Bakeries v. Bakery Workers, 370 U.S. 254, 261 n. 7, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962) when he stated as follows :

We do not understand the opinions in Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 455, 77 S.Ct. 912, 917, 1 L.Ed.2d 972, or United Steelworkers v. American Mfg. Co., 363 U.S. 564, 567, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403, to enunciate a flat and general rule that these two clauses are properly to be regarded as exact counterweights in every industrial setting, or to justify either party to the contract in wrenching them from their context in the collective agreement on the ground that they are mutually dependent covenants which are severable from the other promises between the parties.

See also Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95, 106, 82 S.Ct. 571, 578, 7 L.Ed.2d 593 (1962) wherein the Court stated as follows:

What has been said is not to suggest that a no-strike agreement is to be implied beyond the area which it has been agreed will be exclusively covered by compulsory terminal arbitration. Nor is it to suggest that there may not arise problems in specific cases as to whether compulsory and binding arbitration has been agreed upon, and, if so, as to what disputes have been made arbitrable.

In other words, while the two clauses may be a quid pro quo for each other in a general sense, it does not necessarily mean that the parties cannot limit their application by the terms of the agreement. Often no-strike clauses contain specific exceptions relating to failure to agree upon wages in a wage reopening negotiation. By the same token the contract must be examined to determine what the parties intended to arbitrate and what they did not intend to arbitrate just as Justice Douglas indicated in Warrior. Steelworkers v. Warrior & Gulf Co., supra, 363 U.S. at 582, 80 S.Ct. 1347.

Judge Heaney notes that “[c]oncern has been expressed that the effect of this opinion will be to make mid-term wage disputes in multi-year contracts subject to arbitration whenever a collective bargaining agreement contains an arbitration and a no-strike clause.” He then indicates that the parties can by agreement “exclude such dispute from arbitration.” I find no fault with that reasoning but what will the effect be on hundreds of existing multi-year labor contracts within this seven-state circuit? Although these opinions by an equally divided Court create no binding precedent for the Eighth Circuit, the argument will certainly be made that arbitration of wage disputes on reopening is a right the Union may claim in any case in which the contract includes a no-strike clause and does not specifically prohibit arbitration of wage disputes.

We would reverse with directions to dismiss.

      . Initially, a divided panel affirmed the District Court holding that the parties were required to submit the dispute to binding arbitration. Laundry, Dry Cleaning and Dye House Workers International Union, etc. v. Robert M. Mahoney et al., No. 72-1731, filed August 16, 1973 (unpublished).

      . See, 85 Harv.L.Rev. 636 (1972) ; Griswold, The Supreme Court 1959 Term, 74 Harv.L.Rev. 81, 181 (1960) ; 59 Mich.L.Rev. 454 (1961) ; 45 Mimi.L.Rev. 282 (1960) ; The New Federal Law of Labor Injunctions, 79 Yale L.J. 1593 (1970).

      . In Hughes Tool Co., 36 Lab.Arb. (1960), an arbitrator reached a result generally inconsistent with that reached here. The arbitrator stated:
      Both parties referred in their respective arguments to the recent decisions of the United States Supreme Court in * * * American Manufacturing Co., [and] Warrior * * *. Those cases all dealt, however, with the power of federal courts, rather than with the discretion of arbitrators. Construing those cases in a way most favorable to the Union here involved would lead at most to the conclusion that if the parties had litigated this issue in federal court instead of submitting it to private arbitration, the court would have ruled that the issue was arbitrable ; or that, conversely, if the arbitration decision in this case were in favor of arbitrability, the court would decline to vacate it on review.

        Id. at 1129.

      . * * * The present federal policy is to promote industrial stabilization through the collective bargaining agreement. * * *
      Complete effectuation of the federal policy is achieved when the agreement contains both an arbitration provision for all unresolved grievances and an absolute prohibition of strikes, the arbitration agreement being ' the “quid pro quo” for the agreement not to strike. Textile Workers v. Lincoln Mills, 353 U.S. 448, 455, 77 S.Ct. 912, 1 L.Ed.2d 972.
      United Steel Workers v. Warrior and Gulf Navigation Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 1350, 4 L.Ed.2d 1409 (1960).

      . The demands of the Steel Workers trilogy were recently reiterated in Gateway Coal Company v. United Mine Workers of America, et al., 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (January 8, 1974), in which a general arbitration clause was held applicable to safety disputes.
      The following cases are distinguishable on their facts: West Coast Telephone Co. v. Local U. No. 77, Int. Bro. of Elec. Wkrs., 431 F.2d 1219 (9th Cir. 1970) ; Federal Labor Union No. 18887 v. Midvale-Heppenstall Co., 421 F.2d 1289 (3rd Cir. 1970) ; Radio Corp. of Am. v. Association of Scientists & Pro. Eng. P., 414 F.2d 893 (3rd Cir. 1969). In each case, the collective bargaining agreement made it clear that the issue the Union sought to arbitrate was, in fact, non-arbitrable. dee also, Firestone Tire and Rubber Co. v. International Union, Etc., 476 F.2d 603 (5th Cir. 1973) ; Ford v. General Electric Co., 395 F.2d 157 (7th Cir. 1968).

      . * * * The arbitrator shall not have the power to add to, subtract from, or change the terms of the contract. The decision of a majority of the panel shall be final and binding. * * *
      Article XVII, Section 5.

      . See Note, Mid-Term Modification of Terms and Conditions of Employment, 1972 Duke
      LX 813, 825-31.

      3. Torrington Co. v. Metal Products Workers, 362 F.2d 677, 680 n. 6 (2d Cir. 1966) :
      [W]e think more exhaustive review of this question is appropriate after the award has been made than before the award in a suit to compel arbitration. . .

      . Procter & Gamble Independent Union v. Procter & Gamble Mfg. Co., 298 F.2d 644 (2d Cir. 1962).

      . See United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).

      . See Safeway Stores v. American Bakery & Confectionery Workers International Union, Local 111, 390 F.2d 79, 81 (5th Cir. 1968) :
      “[T]here may be in these controversies two distinct problems. One is whether the grievance is arbitrable. The other is whether the award of the arbiter is to be enforced. To order arbitration is not to approve in advance all, or for that matter, any thing that the arbiter does.”

      . See West Coast Telephone Co. v. I. B. E. W., Local 77, 431 F.2d 1219, 1221 (9th Cir. 1970), where the court held that a wage issue could not be resolved by arbitration because of a similar clause. Judge Heaney’s opinion, in footnote 5, indicates that this case can be distinguished on its facts since “the collective bargaining agreement made it clear that the issue the Union sought to arbitrate was, in fact, non-arbitrable.” But the reason the court held the wage dispute not to be arbitrable, was the inclusion of just such a clause as is present in this contract. The court stated:
      Thus the company seeks a change in the terms of the written agreement. It can be said with positive assurance that such an issue is not arbitrable under the agreement in question. The arbitration clause of the contract expressly provides that the arbitrator “shall have no power to destroy, change, add to or delete from its terms.”
      The district court correctly determined that the issues were not arbitrable and that the court should proceed to a consideration of the reformation issues. (Footnote omitted.)

        Id. at 1221.
      Judge Webster, in his concurring opinion, and without expressing an opinion as to the legality of any change to be ordered by the arbitrator, suggests that the arbitrator may have several options. These include an order to resume bargaining or an order holding “the union is free to strike.” Any order permitting the union to strike would violate the no-strike clause which prohibits strikes “for any reason whatsoever” and would be just as much a prohibited change in the terms of the contract as raising the wages set forth therein. The suggestion also is not practical in view of the fact that the contract was due to expire on August 8, 1973. Realistically, the only options open to the arbitrator are to raise wages or let them remain the same and that decision should be made now rather than forcing the parties to possibly go through an enforcement proceedings after the award is made.

      . The arbitration clause in American Mfg. Co. was described by the Court as the “standard form.” Id. at 565, 80 S.Ct. 1343. The fact that the parties in the instant action did not adopt the standard form indicates an intent to depart from the customary industry practices concerning the scope of arbitration clauses which the principles enunciated in American Mfg. Co. and Warrior characteristically control.

      . We believe that in general, “[disputes as to ‘rights’ are adjudicable under the laws or agreements on which the rights are based, and are readily adaptable to settlement by arbitration. Disputes as to ‘interest,’ on the other hand, involve questions of policy which, for lack of predetermined standards, are not generally regarded as justiciable or arbitrable.” Elkouri and Elkouri, How Arbitration Works (3d ed. 1973). Nee also Elgin, ,T. & E. Ry. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945) for a general discussion concerning the arbitrability of “major” and “minor” disputes, and the different treatment accorded thereto in the railroad industry.

      . Prior to the Steelworkers’ trilogy several cases involving this question were the subject of arbitrators’ decisions. In the following cases the fact that a collective bargaining agreement contained a wage reopener did not oblige the parties to agree on wage increases. Thus disputes arising upon impasses in negotiations under a wage reopener were held to be nonarbitrable. P. P. Williams Co., 24 Lab.Arb. 587 (1955) ; West Penn Power Co., 24 Lab.Arb. 741 (1955) ; Air Reduction Sales Co., 10 Lab.Arb. 528 (1948) ; In re Berger, 9 Lab.Arb. 1048 (1948). Cases taking the opposite view include : Sacramento Wholesale Bakers Ass’n, 20 Lab.Arb. 106 (1952) ; Lincoln Dairy Co., 14 Lab.Arb. 1055 (1950).