Independent Petroleum Workers of America, Inc. v. Standard Oil Company, Independent Petroleum Workers of America, Inc. v. Standard Oil Company
275 F.2d 706
7th Cir.
1960
Check Treatment

*2 SCHNACKENBERG, Before ENOCH Judges. CASTLE, Circuit Judge. CASTLE, Circuit brought This is an action under 301 § Labor-Management Act, Relations compel U.S.C.A. 185 to arbitration § provisions bar- a collective gaining agreement. Independent Petro- America, plaintiff, leum Inc., Workers complaint filed a in the District Court seeking compel to Com- the Standard Oil pany, defendant, join submitting to to grievances concerning arbitration two re- of maintenance and independent pair contractor. complaint later was amended to ask respect similar relief with to addition- involving dispute seniority al of an employee. relating The issue to the maintenance work was submitted on pleadings stipulation and a of facts. Both parties summary judgment moved for on rights. relating seniority

the issue to en- District found Court for and judgment tered in favor of the defend- in so ant far as the maintenance and re- pair dispute was concerned and the plaintiff appealed. Plaintiff’s motion for summary judgment granted plaintiff ordering entered for join defendant to the submission rights dispute to arbi- appealed tration. Defendant judgment. The contested issue in both involved appeals respective is whether respect one ance which in their collective bar- gaining agreed to arbi- tration. agreement provides for the arbi- grievances. of unsettled tration Section imposes 10 then limitations on arbitra- which, pertinent,

tion in so far as here provide: Ritchie, 111., Chicago, Stark Richard P.

Tinkham, Jr., Beckman, Questions John F. may Daniel “A. be which Kelly, Hammond, Ind., F. for Standard ferred to arbitration shall be limit- Oil. ed to: terials, involving Questions directly whether the defendant had the

“1. work, arising applications, in- whether guaranteed alleged terpretations viola- contractor work, *3 quality the economic consid- of the of of the terms tions erations, previous experience agreement. its with employees work, and own in similar Questions involving directly or “2. dis- or whether the work was hazardous arising applications, in- agreeable. practicable, Where defendant alleged terpretations viola- or partial employees, uses its but a list own of of arbitra- tions the terms repair of and work con- maintenance agree- and written tion awards Refinery Whiting dur- at the tracted out incorporated in this ments not Agreement. ing 1958, inclusive, years the 1953 to examples over 250 of contains various Questions applications in- “3. of or types repair and work of maintenance alleged terpretations non- of or by performed independent contractors. compliance past policies, with usages practices, or customs Prior several collective bar- to 1952 conditions, gaining agreements the between grievances arising required from: submission of and to arbitration substantially dispute. any the In 1952 by “(a) the modification the 10 A. contained in Section limitations any Company of said incorporated the were into policies, practices, cus- negotiations During rela- 1955 with usages, or and toms tion to agreement, revision of the modifications and by “(b) the the discontinuance proposed Union plaintiff the any Company of of said “contracting out which a of work” clause policies, practices, cus- prevented would defendant from the usages, or toms and contracting any independent work con- by “(c) the the establishment tractors, provided the defendant had the poli- Company of new employees qualified neces- and cies, practices, customs perform sary proposal This the work. during usages During rejected by defendant. Agreement.” term this negotiations rejected similar precluded plaintiff proposal would have Union contends that the independent concerning performance contrac- mainte- use defendant ances involving any repair independent for craft while tors work nance and work pro- employees with seniori- contractor are defendant’s own arbitrable agree- ty performing in such craft lower visions of A. of the were Section 10 referring work, practices defendant’s own relative rated labor unless ment to past particu- employees with conditions. lar returned to their craft craft were years many For defendant has jobs employees and while rates employees and inde- used its own both independent per- contractors the forming were pendent perform mainte- contractors to involving any work the same Whiting, repair its and at nance work plant. Again, in defendant’s work Refinery. Approximately Indiana 90% rejected pro- 1959, defendant a Union performed com- has such work been incorporated in posal agreement be independent employees than pany rather provide which would that the using independent con- In contractors. company out work contract by re- and tractors to maintenance normally performed production work, pair factors were certain consid- employees at and maintenance among defendant; these ered finery. availability qualified em- defendant con- se- In October of 1957 the ployees, work involved whether processes unique ma- contractor patented tracted cret,

7Q9 mainte- therefor certain must terms be found within the involving agree- bargaining the re- and conditions of nance pair refinishing walls of stucco of ment. Local Associa- International Refinery Whiting garage tion of a truck at the Pot- Machinists v. United States employees Company, Cir., ash and in therewith connection 270 F.2d 496. independent contractor built and bargaining between performed cer- down a scaffold tore plaintiff and defendant no ex- contains subject finishing. in- tain cement or stucco press reference to the con- filing precipitated cident of two tracting out kind of to inde- grievances by plaintiff, as follows: *4 pendent subject contractors. The matter grievance of a in order to be “Independent Petroleum Workers provisions arbitrable under the of Sec- requests Carpenters America of that (3) tion agreement, 10 A. relied of the paid down backed to labor be by plaintiff, past poli- on must concern a by performed craft rate work cy, practice usage custom relative to (scaffold building and contractors working conditions. Garage.” down) tear in the Truck language opinion In our of “The Board of Directors of agreement Section 10 A. of the relat Independent of Petroleum Workers ing past policies, practices, to customs or requests required America that as usages working conditions” “relative to recognition by ap- clause of the was not intended and not include to does agreement plicable and established scope subject within its contract of policy, past practice, custom us- and ing repair out maintenance and on work age, employees classified as Cement plant independent to con assigned perform Finishers be and tractors. United Steelworkers Ameri of finishing work, all cement es- as ca, Naviga AFL-CIO v. Warrior & Gulf by past policy, prac- tablished tice, such Cir., tion Company, 5 F.2d 633. This 269 usage, custom or and that all history especially inso of view of the employees displaced who were negotiations concern deprived such work or of addition- ing performance by work inde by al work such classification vir- pendent The continued bar contractors. employees tue of the use of an gaining subject evidences their on the independent contractor to understanding. intent and compensated by such work be addition, stipulated In facts con- appropriate rate for all time and cerning practice past of defendant in pay lost.” so letting out maintenance and work grievances Both denied and the were de- to contractors serve dem- to fendant refused to submit to them ar- subject always that the onstrate had been ground bitration they on were managerial pre- treated as a matter of rogative. pro- arbitrable under the terms and determining The defendant in visions of the through independent what would be done guided Since Textile Workers Union of contractors was number of a 448, including America v. Lincoln Mills, 353 U.S. and factors considerations 912, 972, advantages 77 S.Ct. 1 L.Ed.2d practicability district to be de- empowered courts are Labor-Management company employees 301 of the per- rived. That § Act, Relations 29 formed work does of such not es- 90% specific per U.S.C.A. 185 to decree § tablish that such result was dictated agreement “working policy formance of to arbitrate a conditions” grievance dispute. a Copper opposed Brass as to an exercise business judgment management Workers Federal Labor Union etc. v. on the various Company, American Cir., Brass 272 7 F. factors involved. There is no disclosure 2d pattern But since arbitration is volun which consideration tary in nature, employee and consensual operated warrant conditions to managerial pre- man-Transportation, restrict rogative. Pro-Tem” exercise 14, department. September crane About Whiting 1958, Hopper and certain other Bearing In v. Na Timken Roller Co. Refinery supervisors to de- were sent Board, Cir., tional Labor Relations Dakota, Mandan, fendant’s finery Re- North 949, upon by plaintiff, F.2d arbi relied perform temporary at that contracting trability question refinery employees on its while recognized interpre out work Hopper the other foremen strike. management tation function temporary were informed that was a That (cid:127)of the there involved. assignment, and all of these foremen plaintiff. <caseis of no assistance Whiting payroll. on mained About supports contention the defendant’s 1958, 3, Hopper other and the October inde 'that the Whiting supervisors returned to the n pendent Re- subject matter contractors is super- Hopper finery resumed his where managerial preroga function and within visory 1958, duties. About October tive rather than “relative non-super- Hopper was returned to the 1912, Interna And conditions”. Local *5 operator visory classification of crane v. Unit Machinists tional Association of rights non-super- seniority and his in the Cir., Company, 270 ed Potash 10 States visory they his existed before class 498, plain 496, upon relied F.2d also promotion recognized. upon tiff, limitation did not involve the subject present in the matter .arbitrable During involved, period and since the con there instant case. The contract seniority year 1945, the list of em- the terms of “not sidered was couched department, ployees, posted in the crane grievances specified to be arbi which are IX, pursuant 1. Article Section excluding thereby trated, all other agreement provided: collective n implication”. involve the case Nor did employee “An has been ad- who * * * n construction policies “past aof any hourly job, rate vanced from conditions” upon. reduced, position when will assume a is The case relied such as is here in line lower classification arbitrability finding authority un no rights classi- his in that service upon (3), relied Section 10 A. der fication”. plaintiff. recognition protested The Union judge did err in re The trial seniority rights Hopper’s filed the fusing to submit order the defendant grievance: following relating grievances mainte to the “The of Directors IPWA Board to arbitration. nance requests depart- job and that re had not contracted to defendant 'The Hopper mental dates of Rolland only is issue to arbitration. fer (961) be deemed forfeited virtue made and has been a contract such where having accepted supervisory his of employment will promise that court broken another at installation Local No. 149 arbitration. order (Mandan), and that location En- of Technical Federation American employees displaced by available gineers (AFL) v. Electric Com- General paid 20, 1958 be him on October 922, Cir., de- certiorari 250 F.2d pany, 1 they had what earned 938, 780, 2 L.Ed. S.Ct. U.S. nied 356 they displaced.” not been 2d rights seniority defendant concedes that as to question Hopper, non-super- be no matter there can to Rolland lated employ employee is visory at a condition of defendant Refinery. governing 'Whiting rule September Defendant's sen On ment. practice iority past constitutes a from the non- 1958, he was advanced opera- policy supervisory relative conditions classification crane scope position of Section A. supervisory “Fore- within tor to bargaining agreement. The interpre- question ance raised as to the application

tation or the rule. ordering District Court did not err join defendant to submission grievance

of this to arbitration.

Each of orders affirm-

ed.

Affirmed. Judge

SCHNACKENBERG, Circuit

(specially concurring). disputes

I would hold that both involved in this arbitrable under case are

section 10 ofA *6 AUTHORITY,

KANSAS TURNPIKE Appellant,

v. John

Edwin ABRAMSON and Emmett Johns, Estate of Executors John Abramson, deceased, Appellees. P.

No. 6200. Appeals

United States Court of

Tenth Circuit.

Feb.