Local Number 358, Bakery & Confectionery Workers Union, Afl-Cio v. Nolde Brothers, Incorporated
530 F.2d 548
4th Cir.
1976
Check Treatment

*1 BAKERY LOCAL NUMBER

CONFECTIONERY WORKERS UNION, AFL-CIO, Appellant, BROTHERS,

NOLDE INCORPORATED,

Appellee.

No. 74-2285. Appeals,

United States Court of Fourth Circuit.

Argued April

Decided Oct. 19,1976.

Certiorari May Granted

See 96 S.Ct. 2165. Aldrich, Senior Judge, Circuit filed opinion.

concurring Widener, Judge, Circuit filed concur-

ring and dissenting opinion.

covering employees the at the company’s bakery. The provid- Norfolk pay upon closing ed for severance the bakery employee each actively the for employed by Nolde for at least three and also years,1 contained an all-encom- clause.2 passing arbitration August following several On Washington, D. C. Rosenberg, Ronald negotiations fruitless over months Kaiser, Arkel, Kaiser, Gress- Van (Henry contract, proposed changes in the the Anker, Law- Jery D. Rosenberg, &man gave days the written no- Union seven Abeles, Lichtman, Sherman, J. rence agree- to terminate the required tice C., Jay Washington, D. Nagle, & Anker Negotiations continued for few ment. Richmond, Va., Levit, Levit, Stallard termination, days but on Au- after brief), appellant. for on company, faced with the gust Richmond, Jr., to strike over Lowden, Va. Union’s threats certain V. Francis Jr., Hunton, demands, Vandermeer, permanently closed (Abram W. Richmond, Va., Gibson, bakery. subsequently paid Nolde Williams, Gay & pay through accrued brief), appellee. wages for and vacation termination, the date of the contract ALDRICH, Circuit Senior Before wages for the few paid days in addition WIDENER, and CRAVEN Judge,* and the between termination Judges. Circuit August closing. But the re- jected the Union’s demand that it either CRAVEN, Judge: Circuit give pay employees severance to all its Brothers, Inc. and Local Nolde In 1970 or arbitrate to do so. Confectionery Bakery and 358 of No. The Union then un- instituted this suit Union entered International Workers Manage- der 301 of the Labor Section a collective * Circuit, by Designation. Sitting grievance, First settle the will be set- tled as called for in Sections 2 and 3 of this Wages. IX. Article Article. any grievance In the event that Section 2. employee iswho Each full-time Section 5. satisfactorily by adjusted pro- employment cannot be displaced his permanently from above, by parties Company of the intro- reason either of the cedure outlined saving equipment, the clos- of labor duction demand arbitration and shall hereto give closing department, of an entire ing plant, aof party written notice to the other of its off, lay compensated by for ac- or shall employee No individual desire arbitrate. displacement providing he has been such right have the to invoke arbitration shall peri- by Company tively employed the written without consent of Union. eligible (3) years. An at least three od of employee’s The Arbitration Board shall consist of three displace- compensation for his (3) persons, Company one selected (30) thirty on the basis of ment shall be and one selected the Union. The two straight pay, time at his of severance hours hourly agree upon persons selected shall a third major por- rate, year each full or person who shall act as Chairman of the year employment com- of active of a tion mencing Board. Arbitration year following (4th) fourth with the Section 3. The decision or award of the Payment under date of hire. most recent his this formula Board, thereof, majority or a Arbitration limited to a maximum shall be binding parties. (900) be final and on both If of severance shall hours nine hundred party pay. is not selected the third to arbitration notice, days (10) receipt in ten from and Arbitration. Grievances 2. Article XII. Director of the U.S. Conciliation Service grievances shall be first All Section up appointment. requested shall be to make Management Plant taken between expense arbitrator shall of the neutral Shop If these shall Steward. and the parties. equally be borne grievance, then to settle the be unable during Pending negotiations or Section 4. Agent called Union shall be Business in, strikes, there shall be no lock- arbitration outs, boycotts, attempt a settlement of to arrive at in an any stoppages of work. grievance. are unable to If these Act, district court

ment Relations U.S.C. erred choosing severance one pay compel arbitration characterization —the company’s— other, alternative, over or, for an award for in issue fact has no district immutable It pay. The nature. of the severance indeed creature of granted company’s for sum- but this motion means no more nor counts, less than given that it is in a mary judgment holding *3 on both exactly case what parties voluntary termina- (1) that union’s intended to “the make it when they bargained. agree- collective In one tion of its case the parties may intend it . de- be ment with the only available if a triggering event pay oc stroyed any right severance creat- curs during the contract term. But as bargaining agree- ed the collective ” Supreme noted, Court has there is (2) displaced employees; ment why “no reason they could not if pay there no severance issue was thus agree so chose to the accrual of arbitrate; rights (3) and that even if there had during the term agreement of an and been an arbitrable issue was no their realization after the had arbitrate, duty to for it died had with expired.” John & Sons v. Living the contract that it. created ston, 543, 555, 376 909, 917, U.S. 84 S.Ct. view, disagree. In our We 11 (1964). L.Ed.2d 898 Thus the nature approached district the issues back of the employees’ right to pay severance it first wards when determined whether depends the-circumstances here entire obligation for company’s severance ly upon the intent of the Union and the pay This survived contract. is a company when they wrote relevant question more suitable for arbitration provision. decision, judicial explain than as we be Any question intent be Thus, low. first hind a collective bargaining term must company’s district court was whether the be referred arbitration if it is availa particular this arbitrate issue ble. This is in accord with the national expiration survived the contract. labor policy expressed by Congress: did, accordingly We believe it we adjustment Final by a method reverse remand with instructions agreed upon by the parties is declared that the district court the company order to be the desirable method for settle- to arbitrate. grievance ment of disputes arising application over the interpretation or

I. of an existing collective-bargaining agreement. The Union and the company apparent- 203(d), LMRA 29 173(d) (em- U.S.C. § ly presented court, to the district as they phasis added). This is also the clear us, have to contrasting views of the na- teaching of the Steelworkers Trilogy,3 pay. ture of severance The Union ar- and is based on the principle sound gued that an “earned” arbitrator, an familiar he is as with both right accruing or “vested” to employees industry, and the is better time, over a period whose benefits positioned than a court to divine their cannot be denied them regardless when intent: they company, come to fruition. The hand, the other characterized severance The labor source arbitrator’s of law pay as “a creation of the collective bar- is not confined to express provi- gaining agreement,” right to it sions of the as industrial contingent upon occurrence of the practices common law—the of the in- triggering bakery event—here the dustry clos- and the shop equally part —is ing during term of the contract. of the — 3. United Steelworkers v. American L.Ed.2d 1409 United Steelworkers v. Enterprise U.S. S.Ct. L.Ed.2d Corp., Wheel & Car 363 U.S. (1960); United Warrior Steelworkers v. & Gulf (1960). S.Ct. L.Ed.2d 1424 Nav. the statements support in it. The la- do not although expressed not com- be- usually pany’s chosen contention a duty arbitrator to arbi- bor in his confidence trate parties’ cannot survive the termination cause common law of the knowledge expiration a contract. personal his their trust shop and First, Court has it considera- bring to bear judgment self apparent premise undercut the expressed are which tions upon arbitration must rest judgment. as criteria for holding that in some circumstances a v. Warrior & Gulf United Steelworkers new employer who takes over a union 574, 581-82,

Navigation ized can compelled business to arbi 4 L.Ed.2d 1409 trate under the arbitration clause of its authority absolute The arbitrator’s predecessor’s agreement, though even matter, correspond- and a court’s such a new stranger to the —a *4 affirmed in an- ing power, lack of was agreed to such arbi —never passage from Steelworkers other Sons, tration. John Wiley supra. & Al Trilogy: though the potential implications of the Wiley narrowed, case have since interpretation been question [T]he see is a Howard Johnson Co. v. Hotel Em collective ployees, 249, 2236, the arbitrator. It is the 417 U.S. question for S.Ct. construction which was L.Ed.2d 46 NLRB v. Burns arbitrator’s Se for; Services, curity Inc., arbi- bargained 272, and so far as the 406 U.S. (1972), concerns construction trator’s decision L.Ed.2d 61 the courts have no Court has not from recogni retreated its overruling him because their tion that in some instances the business national policy impose of the contract is differ- labor can an interpretation duty upon an unconsenting party: ent from his. Enterprise Wheel While principles governing United Steelworkers of law Corp., ordinary 80 S.Ct. contracts would not bind & Car to a (1960). unconsenting 4 L.Ed.2d contract an successor to pre-empted contracting court below arbi- party, district a collective bar- overruling him. But gaining agreement rather than ordinary trator is not an law. may do neither under labor contract. “. . . general- he is a [I]t ized govern myriad code to of cases II. which the wholly draftsmen cannot argues strenuously, anticipate. most . . . The company however, employ- that it cannot be ordered the whole covers relationship. being the severance issue because ment It calls into arbitrate bargaining agreement con- a new common law—the law the collective taining common particular industry partic- its to arbitrate had been of a or aof dispute plant.” the instant ular . terminated before Central to the position peculiar support arose. In of its status and function of a col- Supreme lective fact, company bargaining agreement cites several Court is the circumstance, party by to the effect that a dictated both statements required any by requirements to arbitrate issue cannot agreed Act, to do so.4 We think the National unless it has Labor Relations arbitration is a matter of contract and a 4. For be determined on the Court basis of party required to submit arbi- cannot be parties. the contract entered into any dispute agreed which he has not tration Atkinson v. Sinclair Ref. 370 U.S. so to submit. 1318, 1320, (1962). 82 S.Ct. 8 L.Ed.2d 462 compels party United Steelworkers v. Warrior & Gulf Nav. griev- The law to submit his 574, 582, 1347, 1353, 363 U.S. 80 S.Ct. only ance to arbitration if he has contracted (1960). L.Ed.2d 1409 to do so. decisions, or not Under our Gateway UMW, 368, 374, Coal Co. v. 414 U.S. arbitrate, as well as was bound 629, 635, 94 S.Ct. 38 L.Ed.2d 583 arbitrate, it is a matter what issues must Workers, tionery any simple F.Supp. (S.D. not in real sense it is relationship. N.Y.1973); of a consensual cf. product Milk Drivers Thomp Inc., Dairy, (D.D. son’s C.1972), 80 L.R.R.M. 3403 Sons, Wiley supra, John 550, mem., (D.C. aff’d 489 F.2d 1272 (citations omitted). at 914 1974). there was a It is true that The company not deny does ex with an arbitration clause in its contemplated terms filed suit to com istence when the union any tration of dispute over severance arbitration,5 here whereas pel pay. Thus it is clear that the company either when arose none literally agreed to arbitrate issue of But we believe the when suit was filed. obligation for severance pay. See has Court indicated that note supra, and accompanying text. Wiley requires arbitration in principle Pi as well. In the latter circumstance Widener, Judge concurring and v. W. Musical Instrument Workers ano & dissenting, argument an advances (N.D.Ill. 221 F.Supp. 461 W. Kimball employer rejects. The battle was un 1963), the district court held that a joined here or in the district court rehiring ion-employer dispute over of over whether the court or the arbitrator discharged employees, centering should decide was arbi employees’ seniority rights, was arbitra fight about, trable. What the as stat though arose ble even sever brief, in appellee’s ed is whether the days parties’ al after termination duty to arbitrate can survive contract *5 bargaining agreement. collective The termination. We think the issue to reversed, that holding Circuit Seventh which our brother Widener has ad required not be in such arbitration could dressed us, himself is not before but be 761, (1964). 765 circumstances. F.2d cause of respect viewpoint, our his Supreme granted The Court certiorari we would add that we read the cases summarily and reversed the Seventh Cir upon being he which relies as consistent 441, cuit. with the general rule that the initial (1964). Significantly, L.Ed.2d 541 is a matter to be Court cited the first Supreme only Steel determined the court. An exception Trilogy Wiley. workers case6 and to the rule is where a a clause in labor We believe and its use contract to purporting exclude some in Piano Workers vague Court matters from arbitration is and support our that that ambiguous. view a In such a case an arbitrator on cer turns intended be expressly empowered only to not rights tain accruable be enjoyable, adjudge grievances to but also to decide expiration, even after contract be must whether the gives instrument him the provided arbitrated if the contract for power to do so. is all That we that held disputes, arbitration of such even if the in A. S. Abell Co. Typo v. Baltimore contingency giving to the graphical rise Union No. 338 F.2d 190 transpired (4th 1964). Indeed, itself after expiration of Cir. Judge Sobeloff Accord, K. contract. Steelworkers v. H. said in if that case that the meaning of Co., (W.D.Pa. 64 L.R.R.M. 2201 exclusionary Porter entirely section “were Co., 1966); cf. IAM Howe Sound clear it would the duty become of the (3d 1965). F.2d But see Cir. U.A.A. court to declare the meaning.” Again, & A.I.W. v. Robertshaw Controls Printing Winston-Salem Pressmen & 1968) banc); (2d (en Cir. 405 F.2d Assistants’ No. 818 Union v. Piedmont Foods, Bakery Publishing Inc. v. & Confec- (4th Ward 393 F.2d 221 original employer expiration 5. union had en- The and the tration one week before of its original employer. a tered into contract with an arbitration clause contract with the See 376 544-46, January expire The that was U.S. at 84 S.Ct. 909. employer merged original the new em- Mfg. Co., 6. United Steelworkers v. American ployer on filed October union L.Ed.2d 1403 against compel suit the new ny obligation s for severance pay for the de- writing Judge 1968), Sobeloff pends “submission to acknowledged upon parties’ intent court, behind judicial deter- precede provision pay. cannot A bargaining court, the collective after the Trilogy, Steelworkers mination a create such in fact not proper inquire does forum in which agreement conclude that he Only then did If expiration that intent. duty.” pro- specifically that case were strip the contract held arbitrator placed to be construction power, determining vided best means of clause, including the clause au- upon parties’ original the true content of the arbitration, resolved thorizing agreement would be available— procedure grievance through possibility which would increase the Winter, Judge himself. the arbitrator resorting the parties’ to economic war- has judge, written to a sitting as district support fare respective of their inter- 24, IBEW v. Local effect. the same pretations. precisely But this the kind F.Supp. Bloom Wm. C. unrest industrial that collective bar- Indeed, the rule (D.Md.1965). 428-29 gaining, coupled with arbitration of dif- so well settled are now exception terms, ference over contract is intended in one expression have found that both to avert. See LMRA 29 U.S.C. § encyclopedias: holding 151. Our that arbitration is of con- still available the most poli- to arbitrate is serves basic Since compulsory cy submis- of our labor laws. origin, tractual judi- precede cannot sion to arbitration Our decision should not be read as dis the collective determination cial approving those cases that hold arbitra fact cre- does in tion for resolution of individ unavailable questions wheth- duty. such ate employee grievances, disputes ual in collective party er a volving rights, nonaccruable that arise arbitrate, and what must expiration after of a bargain arbitrate, must be de- he must issues See, ing agreement. g., e. OGAW v. on the basis of by the court termined Co., 492 American Maize Prods. F.2d 409 *6 par- contract entered (7th Cir.), denied, cert. ties. (1974); 41 L.Ed.2d 1140 Proc S.Ct. However, aof Indep. ter & Gamble Union Procter & subject to if arbitration may itself be (2d Gamble F.2d 181 so clearly provided parties have 1962), denied, cert. 374 U.S. course, the court Of agreement. 10 L.Ed.2d 1053 Garlick the threshold decide must Employees, Funeral Homes v. Service fact con- parties have in whether the (E.D.N.Y.1974). L.R.R.M. 2749 We con the arbitrator. If power ferred this sider To those cases different. hold that have, stay pro- should the court they employee a an company had to arbitrate arbitrator’s de- ceedings pending that occurred aft discharge or a lockout jurisdiction, of his own termination providing er a expiration of for the claim of arbi- it clear that unless is employ that arbitration would mean an wholly groundless. trability is agreed er once to submit its mana who “Labor and Labor Rela- 48 Am.Jur.2d gerial potential actions arbitration at 783-84. tions” agreed have so would in effect do all time. That we do not hold. Our that the simply We hold only those rights, decision affects like even after must abide pay, that earn and employees it terminat embodying has the contract may or not “vest” for future in Wiley and only the decisions ed. Not upon particular Workers, policy enjoyment contingent considera but also Piano — compa- way The best event.7 determine indicate such result. tions Dairy, heavily Thompson’s Milk Drivers v. 80 L.R.R.M. relied one of the cases We believe mem., (D.D.C.1972), distinguishable aff’d 489 F.2d 1272 upon appellee from this is (D.C.Cir. 1974), the court refused order ar- ground text. In on the discussed case is an the union and the arbitrable issue whether the arbi- enjoy those employees meant tration clause covers the substantive contingen- rights regardless when the sought matter to be arbitrated. all cy is to arbitrate. That is we occurs require. WIDENER, Circuit Judge (concurring and dissenting): remanded with

Reversed and instruc- tions. While I agree that this case calls for to arbitration, referral I do not agree ALDRICH, Judge (con- Senior Circuit that Piano & Musical Instrument Work curring): Kimball, ers W. W. respect, I great am not entirely With 441, 13 (1964), L.Ed.2d 541 foreclos my full sure of the extent brethren objection es an being disagreement, perhaps are in I am lodged I, before the arbitrator. there being However, over-simplistic. it seems fore, respectfully dissent from that por disput- to me that what are tion of the majority’s opinion. ing the claim for compensation —whether In Workers, Piano the defendant Kim- force, while the vested contract was in ball had entered into a collective bar- and therefore its termination— survived gaining with Piano & grievance Musical plainly is within the mean- Workers Local 2549. The arbitrability clause, peri- ing of the and nei- od ran we, arbitrator, from October ther nor the face the is- to October August 1961, 1961. In arbitrability. only issue, sue the defendant words, grievance other is whether the decided to is discontinue operations at its sound, which, course, is for the Melrose Park Plant in Illinois began process trator. of discharging all employees at that location. On October 9 of that possibilities open I see three to court year, eight days after the expiration of decision in this area: an substance; agreement, issue of arbitrable that there opened Kimball plant a new is an arbitrable issue of whether the French is- Lick, Indiana. sue of subject substance one to arbi- tration; there is no arbitrable issue at Despite the fact the union contract Judge If all. Widener denies this first terminated, had been the union claimed I possibility, disagree then must its members right had a to priority in time, him. At the I same I think see employment plant. at the new It based arbitrator, what troubles him. If the II, its claim on Article Section Para- appointed, when rendered a decision to graph 6 of the which stated: the effect that he saw no arbitrable is- “When reemployment occurs employ- *7 sue, I don’t a know what court could do ees will be called back to work in or- We question about it. do not face that der of seniority.” their and I doubt if a court ever would. How- When the ever, how, company I refused to theory, do not see in follow the a court rehiring procedure can, by circumstances, that in the desired the proper union that submit the question dispute arbitration, rule there is no be arbi- the trated, brought cannot rule union equally that there suit in the United States Indeed, one. that is what it does District every Court for the Northern District it time instructs the arbitrator that there of Illinois. pay

bitration original over severance when a at the time of had intended expiration went out of business after the of employees pay upon to receive severance agreement. the collective But the post-termination shutdown. The contract con- grant there did not on its face em- templated only that the would discuss ployees right pay, an absolute to severance as possibility the of severance at the time of Instead, does the contract in the instant case. accrue, Nothing shutdown. could and the ob- the contractual of the was to ligation negotiate simply died with the con- “negotiate regard- the terms of discontinuance negotiate tract. An does not last ing pay.” Under that contract forever. argument was no for an room that the

555 that the conclusion is that action deter- mandated the court in The district question Supreme opinions of whether Court’s in that United mined were arbi- v. complaint Mfg. Steelworkers American raised Co. or issues of the con- following John v. Livingston.2 termination Sons trable subject question arbitration. As before us is a very was narrow one: tract out, “the Is the susceptible it was arbitration clause pointed of the court an interpretation necessarily that that construction of covers trator’s [arbitration] dispute? that was bar- asserted not the While doubts clause and Court’s 463. The should be resolved in F.Supp. coverage, 221 favor of for.” gained not, therefore, United v. holding, in that Steelworkers Warrior & Gulf court did 564, 582-83, 363 that union-em- U.S. as hold S.Ct. go so far was, fact, in L.Ed.2d A. rehiring S. Abell Co. v. dispute ployer over Typographical Baltimore Union No. arbitrable. (4th 1964), 338 F.2d Cir. Circuit held appeal, Seventh On court should ever be mindful of Mr. Justice court’s determination lower that the uglas Do admonishment in United was of question v. Steelworkers American But it went on in error. was arbitrator 4 L.Ed.2d 1403 could not be conclude (1960): since the circumstances under ordered Kimball, “The . failed to show courts the record have no busi- had ness ance, agreement, weighing during griev- the term of merits of the rights considering way eq- violated the whether there is in uity employees. particular claim, 333 F.2d 761. in a any of or determin- of ing whether there is lan- particular subsequently Supreme Court guage the written in instrument which summarily re- granted certiorari will claim.” support the The ques- the Seventh Circuit. versed 1343, 1346, L.Ed.2d Court, Supreme to the presented tion however, not include issue of did Thus, the arbitrator was where the determination of ar the court or question bitrability necessarily the threshold would to determine require arbitrability under these circumstances. consideration of the merits of disagreement, Rather, underlying issue the Court in both issues before should submitted to the arbitrator. propriety Cir- that case A. appellant’s Typographi S. Abell Co. Baltimore cuit dismissal Court’s (4th cal upon the merits of the dis- Union No. F.2d 190 Cir. claim based 1964). pute.1 therefore, opinion, Our decision in Print-

I am Winston-Salem require ing that the Pressmen & No. Piano Workers does Assistants’ Union present case 318 Publishing substantive Piedmont F.2d (4th 1968),3 do I is precisely point arbitrable. Nor believe 221 be deemed opinion Pressmen, Printing “any the district The second in Winston-Salem establishes what Court de- here', which grievance” is more theoreti own not considered cided in its case was cal than real. It is true that in the Winston- reported majority here. It Printing Salem Pressmen case the contract *8 F.Supp. 523 provided of for arbitration “the construction to placed any upon be clause of . [the] Trilogy and John Steelworkers is, agreement,” grievance specifically but that is what a discussed and con and Sons were opinion dispute employee in Winston-Salem Print and over strued in our between ing agree Union No. v. meaning Pressmen & Assistants’ 318 the of Co., (4th Publishing 393 F.2d 221 Piedmont directly point in ment. A case and consistent 1968), which case is later discussed. Cir. my viewpoint is U. A. W. et al v. Card 1962), (10th well 304 F.2d 801 Cir. in contract that case 3. An examination of the be where the matter to submitted to arbitra “any phrase dis- that the construed shows “grievance” conditions, tion which was defined in hours, was a wages, working pute” over 221, “any dispute shop practices. the contract Company as between F.2d n. 1. I 393 and Here, fact that the Union.” “any and dispute” the difference between submit 556 lish, by are indistinguishable way on facts which of bargaining history,

here majority, practical purposes. The all of the parties for. however, intent to exclude certain follow case. fails to arbitration, from matters for it is firmly There, any ex- scrupulously we avoided established in this circuit that bargaining of arbi- question as to pression trability how legitimate history is of no use in deter- resolved should be where mining whether to order the submission it- of the arbitration clause application grievance aof to arbitration. Id. at 194. case, subject dispute. to In that self was also Local No. 1434 See IBEW v. E. I. to employer sought an avoid arbitration duPont deNemours & F.Supp. 350 grounds the duty on the to arbitrate 462, (E.D.Va.1972). 466-67 expiration With the of the con- ceased case, In the instant it no means to came request when the arbitrate tract beyond “clear rational debate” that subsequent thereto. district court dispute over after con- question concluded that the contract in “griev- tract termination constitutes not state that notice to arbitrate had did ance” within the meaning of the con- given to prior expiration of the to be tract. The contract merely pro- itself of agreement, but that should settlement vides: disputes impossible, the prove “In any grievance the event cannot be ap-On differences would be arbitrated. satisfactorily adjusted ... ei- peal, we held that where the issue of ther of the parties may hereto demand arbitrability interpretation involved of ” . arbitration. matter, including the entire be question of should Nowhere the agreement within have the submitted -to the arbitrator. to attempted “any define griev- phrase ance.” Since the “any grievance” our This conclusion is consistent with undefined, is left in- holding in A. S. Abell Co. v. Bal earlier disputes tended that arising after Typographical Union No. 388 timore termination (4th 1964), subject of the contract stated be F.2d 190 Cir. where we to well it ration call for a beyond that where is not “clear detailed litigants examination of the al that the intended the history debate” arbitration, leading up the contract, to be submitted a task matter, including uniquely question the entire suited to the arbitrator. I am opinion be to the arbitrability, of should referred of either party should be allowed To conclude otherwise would to offer bargaining history explain arbitrator. any opportunity foreclose to estab- phrase, which, be to the undefined being unde- F.Supp. the effect different is not Forrest Labor Mediation N.W.2d aff'd ing encouraging settlement of parties Court should ers’ Woodworkers, 1947). hand. the more reason to submit applicability “any It is Co. Union No. 381 F.2d 144 grievance” generally in its themselves have Industries, And term of from its NLRB, given decision Warrior & Gulf the use of disputes. a liberal held is undefined art, Board, Inc. v. Local (D.Mont.1958); (9th teaching etc. meaning F.Supp. that the phrase term in F.2d Cir. Forrest set machinery 365 Mich. Timken has no connotation Anaconda up broad construction 1967); to the term for the the interest Industries, arbitration the No. 3-436 ordinary Roller (D.Or.1966), “grievance” Petition Butte Min which (6th peaceful Bear is all use. Inc. Int. of purpose when follow tempt of a labor door of the construction of the substantive older stitutes a “Since contracting F.2d v. Local No. “The Warrior & Gulf states an *9 arbiter, operation 80 S.Ct. at 1354. regime arbitrator.” now, judiciary [*] necessarily interpreting regime persuade alternative is to utilize the services should view with is the agreement, attempt out in the not as we have in the [*] of industrial (9th 3 — an arbitral for question. sits in these cases to Cir. it to become peaceful [*] comprehends present Int. the arbitration even a court 1967). courts.” [*] the rule we should process Woodworkers, conflict. Whether It through settlement suspicion case violated the is a [*] to infer such a past: entangled which sub- provisions [*] the back U.S. at merits, for the clause, an at- bring question the same bargaining history, on the same fined, subject to facts had and rational debate.” beyond to up not “clear be carved between two different is forums, one deciding after the other. the benefit of majority, without logic Neither nor policy considerations of intent, parties’ as to the any evidence compel such a result.”4 inquiry to foreclose further has chosen arbitrability. In es- of question I would accordingly remand with in- must con- sence, the courts it holds that structions that: arbitra- question of clusively decide (1) dispute The whole should be re- beyond it is not “clear even where bility, ferred to arbitration. what the intent of debate” rational (2) arbitration, At doing, been. In so might have parties objection make the that the dis- open extends an in- majority opinion the vitation, pute pay over severance under the command, to indeed presented facts was not intended the con- themselves in entangle to courts parties subject to be to arbitration. and substan- procedural of both struction agreements. of labor provisions tive (3) If the arbitrator should decide the clearly improvident, to be This I consider arbitration, dispute subject is then prevailed the law which has contrary to decide, go he should on and under the circuit, keeping with and not in this presented, ques- facts the substantive Gulf, and in Warrior the rule as stated parties tion of whether or not “the p. 1347. at 363 U.S. . . . pay] intended [severance Moreover, parties whether the rights enjoyable, to be even after con- dispute for the instant case intended expiration.” Opinion, p. tract pay subject to be to arbi- over the Supreme Since Court in Piano the termination of the con- tration after question Workers did not decide the of inextricably in- seems to me to be tract question whether the of of problem the substantive tertwined arbitration, subject not it was the intent of whether or obviously majority here has chosen provided that severance follow the Circuit in Seventh Piano its termina- in the contract survive Workers rather than our own cases. dispute can arise un- Certainly, no tion. prefer logic only Not do I of Card expired der the terms our A. well Co. and cases of S. right survives some substantive unless Printing and Abell Co. Winston-Salem expiration. Pressmen, they give a more liberal assuming that there be doubt Even reading provisions, which I arbitrable, given poli with national think consistent labor applied, it is clear standard I we are bound our own cy, submit to arbi- matter must be submitted this en decisions absent an banc court. at least for threshold considera- tration contracting “Whether out [arbitration] further, however, hold goTo tion. present agree- case violated controversy clearly arbitra- that the so question. question ment is the It is a as to foreclose the under the contract ble arbiter, the courts.” 363 for the before the evidence introduction at final 80 S.Ct. 1354. This the intent of the arbitrator as to is, in War- conclusion of'the Court to substitute the views my opinion, equally applicable rior here and Gulf is the arbitrator as this court for that of following more than a and no statute, dispute. This would the merits of the 173(d), as it declares U.S.C. required rule which a “curious create disputes by that settlement of labor grow- . . . intertwined issues method” for set- single dispute raising tration is the “desirable ing out of a Livingston, majority this case for the here has taken “in- John & Sons 543, 547, growing 11 L.Ed.2d tertwined . out of a issues dealing with a single dispute” up While the Court was and carved them between logic employed arbitrability, procedural two different forums. equally applicable appears to the facts of *10 arising tling “grievance disputes” “interpretation”

only from of collec- agreements,

tive but also Typical of “application.”

their the ma-

jority opinion placing is its of italics on

interpretation quotation in its

statute, opinion p. while not ac-

knowledging anywhere opinion equal emphasis Congress placed

application. That is its fundamental er-

ror.

Thus, majority has fallen into the trap

same for which it chides the district p. opinion. 551 of “pre- It

empted the arbitrator rather than over-

ruling “may him.” It do neither under

the labor law.” This court has no more authority to pre-empt

the arbitrator

than has the district court. Winter, Judge, Circuit concurred in

Seymon HARRISON, Appellee, B. part and part dissented in opinion. UNITED TRANSPORTATION

UNION, Appellant,

Norfolk and Portsmouth Belt Line Company,

Railroad Defendant.

Seymon HARRISON, Appellant, B.

UNITED TRANSPORTATION UNION

and Norfolk and Portsmouth Belt Company, Appellees. Line Railroad 74-1737,

Nos. 74-1738.

United States Appeals, Court of Fourth Circuit.

Argued Feb. 1975.

Decided Dec. 3,May

Certiorari Denied

See 96 S.Ct. 1739.