*1 v. OF AMERICA STEELWORKERS UNITED NAVIGATION CO. WARRIOR & GULF Argued April 27, June 1960. 1960. Decided No. 443. *2 David E. Feller argued petitioner. the cause for With him Bredhoff, on the brief J. Goldberg, were Arthur Elliot Carney Layne. James P. Clowes M. Lang
Samuel argued respondent. the cause for With him on the brief T. K. were Richard C. Keenan and Jackson, Jr.
Opinion of the Court Douglas, by Justice Mr. announced Justice Brennan. Mr.
Respondent transports products by steel and steel barge and maintains a terminal at Chickasaw, Alabama, performs where it repair on its maintenance work barges. The employees at that terminal a constitute bargaining unit a collective bargaining agree- covered ment negotiated by petitioner Respondent union. be- tween 1956 and laid off some employees, reducing the bargaining unit from 42 to 23 men. This reduction part was due in to respondent contracting maintenance work, previously done its employees, other com- panies. The latter respondent’s used supervisors lay out the work and hired some of the laid-off employees respondent (at wages). reduced Some were fact assigned on respondent’s to work A barges. number of employees signed grievance petitioner presented which to respondent, reading: hereby are
“We protesting the Company’s actions, arbitrarily unreasonably contracting out work concerns, to other that could and previously has been performed by Company employees. practice
“This becomes unreasonable, unjust and discriminatory in lieu of the fact that present [sic] laid have been employees a number of there lack allegedly or more for years off for about % of work. charge facts we these
“Confronted with by inducing contract of the Company is violation employees who of a number partial lock-out, not for this unfair working were it would otherwise practice.” strike” and agreement had both “no
The collective procedure a grievance It also had provision. “no lockout” as follows: part relevant provided statute in conflict with Federal “Issues which *3 procedure or as Court application its established strictly management are function of matters which this subject to arbitration under section. shall not be Company and arise between the “Should differences Company employed or its members Union application provisions meaning as to the any Agreement, should local trouble of this arise, shall of work on suspension kind there be no an earnest effort shall differences but account such immediately in settle differences be made to such following manner:
“A. Employees: For Maintenance “First, aggrieved employees, between involved; Foreman
“Second, between member or members of the designated by Union, Committee Grievance Mechanic. the Foreman Master agreement if has “Fifth, not been reached the mat- impartial to an umpire ter shall be referred for deci- parties umpire shall meet to on an sion. decide If acceptable agreement to both. no on selection of umpire reached, an jointly peti- shall for sug- tion the States Conciliation Service United of a list from which selection will gestion umpires shall umpire be made. The decision of the be final.” not grievance respond- of this was had and Settlement was then ent refused arbitration. This suit commenced by the it.1 compel union to respondent’s
The District granted Court motion dis- complaint. miss the 168 F. 702. It Supp. held after hearing evidence, much of the merits which went to in grievance, agreement that the did not “confide right arbitrator to review the defendant’s business Id., in judgment contracting out 705. work.” It fur- repair ther held that “the out of and main- well as work, work, strictly tenance construction management any respect by function of limited agreement the labor involved here.” Ibid. The Court Appeals affirmed 269 F. vote, divided 2d majority holding the collective had procedure from the grievance withdrawn “matters which strictly a of management” function and that con- tracting exception. out fell The case is here on a writ of certiorari. U. S. 912. Mills,
We held Textile Workers v. Lincoln 353 U. S. 448, that a provision a collective *4 agreement by (a) could enforced reason §of 301 of Management the Labor Relations Act2 and that policy applied enforcing type to be this of arbitration
1
(a)
Management
Act, 1947,
of
Section 301
the Labor
Relations
156,
(a), provides:
61
29
S. C. 185
Stat.
U.
§
employer
“Suits for violation of contracts between an
and a labor
industry
organization representing employees
affecting
in an
com-
Act,
any
organizations,
merce
or
as defined in this
between
such labor
brought
any
having
district court of the United States
jurisdiction
parties,
respect
of the
without
to the amount in con-
(cid:127)
troversy
regard
citizenship
parties.”
or without
to the
of the
See
Mills,
Textile Workers v. Lincoln
579 999, Rev. 1004-1005. The collective covers employment relationship.5 being the whole It calls into a of particular new common law—the common law a indus- try particular plant. or of As one observer has put it: . . unqualifiedly t is not true that a collec- [I] tive-bargaining agreement simply a document by employees imposed upon which the union and have management limited, express restrictions of its other- right manage enterprise, wise absolute so that employee’s an claim fail can unless he point specific provision upon contract which the claim is many people, many founded. There are too too many problems, contingencies too unforeseeable make the words of contract exclusive source rights and all duties. One cannot reduce the rules community an governing plant like industrial fifty pages. sphere fifteen or even of col- Within bargaining, lective the institutional characteristics provide lifting “Contracts ban strikes often the ban pledges against are, under certain conditions. Unconditional strikes however, frequent more than somewhat conditional ones. Where pledges, are conditions attached to no-strike one both of two may subjects approaches exempted be used: certain from the scope pledge, pledge may pro or the be lifted after certain (Similar qualifications may cedures followed union. pledges against lockouts.) made in frequent lifting pledges
“Most conditions for no-strike are: (1) wage reopening negotiations; of a occurrence deadlock (2) contract, especially non-compliance violation of the with the grievance procedure failure to abide arbitration award. pledges may compliance speci-
“No-strike also be lifted after with procedures. permit fied Some contracts union to strike after the settlement, procedure has been without exhausted prescribed where arbitration is not as the final con- recourse. Other permit fail, specified tracts a strike if mediation efforts or after a cooling-off period.” Bargaining, Negotiations Collective Con- tracts, Affairs, Inc., Bureau of National 77:101. Arbitration, Cox, Upon Reflections Labor Harv. L. Rev. (1959). 1498-1499 *6 nature of the collective-bar- governmental
and the shop common law of the demand a gaining process of the the context implements and furnishes intelligent nego- must assume that agreement. We they a need unless acknowledged plain so tiators words.” contrary plain stated a rule is erect agreement A an effort to bargaining collective most system self-government. of industrial When they so relationship contractual do vol- enter into to compulsion in the no real untarily, sense there with other another, opposed dealing with one deal The agreement. the labor parties. This is not of true or generally entering refusing choice between relationship, probability pre- into a for that in all enter having that exists the it is between negotiations. Rather relationship governed by agreed-upon rule of law subject temporary to a leaving every matter each solely strength, the relative dependent upon resolution any given moment, contending at of the forces. all attempt regulate agreement may mature labor complicated the most aspects relationship, of the from period over an extended of crucial to the most minute compulsion time. Because of the to reach the breadth of the matters as well as need covered, fairly product concise and readable of instrument, document) written in the negotiations (the is, words provi- “a Shulman, compilation the late Dean diverse objective automati- provide sions: some criteria almost cally specific applicable; provide some more or less judgment standards which in their require reason do than application; problems and some little more leave expression hope future consideration with an good Shulman, supra, may faith.” Gaps 1005. practices be left to be filled reference to the particular industry shops and of the various agreement. Many specific prac- covered tices the agreement unknown, which underlie except hazy to the Courts and form, negotiators. even the context of most commercial contracts resorted because there has been a breakdown in the working resort relationship such is the parties; exception. But grievance machinery unwanted under very bargaining agreement collective is at the heart *7 the is system of industrial Arbitration self-government. sys- the a solving by molding means of the unforeseeable tem private problems of law for all which arise the provide way and to for their solution a will gen- which erally accord with the variant and of the needs desires parties. grievance The of processing disputes through the machinery actually meaning is a vehicle which con- given tent are bargaining agreement. to the collective Apart parties specifically exclude, from that the matters all questions disagree of the the parties on which therefore within the of scope come the arbi- provisions tration agreement. griev- of the collective The ance procedure is, part other a of the contin- words, uous collective a bargaining process. It, rather than is strike, point the terminal disagreement. performs
The labor arbitrator functions which are not normal to courts; help him considerations which judgments may foreign compe- fashion to the indeetl tence of courts.
"A proper conception the arbitrator’s function is basic. He is not a public imposed upon tribunal parties by parties superior authority which accept. He no charter obliged general has to administer tran- justice community for parties. system scends the He of a part is rather self-government created confined to . parties. . .” Shulman, supra, at 1016.
The labor arbitrator’s source of not confined law the express provisions of contract, as the industrial industry and the of the practices law—the
common bargaining agree- part shop the collective equally —is arbitra- in it. The labor although expressed not ment parties’ confidence usually tor is chosen because shop law of the of the common knowledge in his bring to bear con- personal his judgment their trust in in the contract as expressed siderations which are not expect that judg- his judgment. criteria only what particular grievance ment of a will reflect bargaining as the collective says but, the contract insofar upon pro- the effect agreement permits, such factors -as ductivity consequence to the particular result, its shop, judgment morale of the his whether tensions will be parties’ objective heightened or diminished. For process primarily the arbitration further their using uninterrupted production under goal common specialized to make serve their agreement, expected bring judge needs. The ablest cannot be *8 upon deter- experience competence same to bear the similarly mination of because he cannot be grievance, informed. has of the Labor Man- Congress, however, by §
agement Act, assigned duty Relations courts determining party whether the reluctant has his breached arbitrate. For arbitration is matter of con- promise to to to party required tract and a cannot be submit arbitra- any dispute agreed tion which he has not so to submit. Yet, congressional policy to be consistent with favor of through the machin- disputes settlement of ery judicial inquiry under arbitration, § strictly question confined to the whether the reluctant agree grievance to arbitrate the or party agree did did power An give the arbitrator to make the award he made. particular grievance order to arbitrate the should not be may positive denied unless it be said with assurance that susceptible an interpreta- arbitration clause is not that dispute. tion covers the asserted Doubts should be coverage.7 resolved favor of agree contracting-
We do not with the lower that courts grievances necessarily excepted out griev- were from the ance procedure of this To be agreement. sure, agree- provides ment strictly “matters which are function management subject shall But not be arbitration.” goes say it on “any that if “differences” arise or if local procedure trouble of arises, kind” shall applicable. Collective bargaining agreements regulate or restrict the exercise of oust management functions; they do not management performance Manage- from the of them. ment hires and fires, pays supervises and promotes, plans. All these are its part function, and absent a bargaining may collective it agreement, be exercised freely except by public law and limited willingness employees particular, to work under the unilaterally imposed bargaining A conditions. collective agreement only treat with certain specific practices, rest leaving management subject possi- but to the bility however, of work stoppages. When, absolute no-strike clause is included in the then agreement, very everything real management sense does is sub- ject the agreement, management for either is prohibited if not, protected or limited in the action it takes, from interference comprehensive strikes. This reach agreement of the collective bargaining mean, does It clear that under both the this case and that Manufacturing Co., ante, in American p. 564, involved *9 arbitrability Cox, Upon of is for the courts Cf. to decide. Reflections Arbitration, Labor L. Rev. Harv. 1508-1509. Where the assertion the claimant is that from excluded court merely grievance determination not of decision the merits of the arbitrability, vesting power but also the of its to make both arbitrator, decisions the claimant must bear the burden of a purpose. clear demonstration of that of “strictly a function the language, that however, meaning. has no management,” thought might management” of “Strictly a function which, under management any practice refer to of agreement, prescribed circumstances particular to deter- But if order courts, indulge. is permitted what is to determine allowed arbitrability, were mine clause would is the arbitration not, and what permitted Every grievance exception. up be swallowed violated management has a claim that a sense involves agreement. provision some of “strictly management” a function of Accordingly, only referring to that over which' interpreted control gives management complete the contract Respondent claims that the con- discretion. unfettered category. falls this Contract- out of work within tracting many grievances; is of and that out work the basis ing in the mills A grist of claim arbitrators.8 type con- specific bargaining agreement may collective exclude procedure. Or a written tracting out from the contracting collateral make clear that out In was a matter for arbitration. such a griev- case solely contracting based on out would not be arbitra- ance Here, however, provision. there no such Nor is ble. any showing parties designed phrase there that “strictly any a function management” encompass In contracting forms out. the absence of all Corp. America, Rep. 925, (1959), See Celanese 33 Lab. Arb. grievance growing where the arbiter in a out of out work said: my published I
“In research have located 64 decisions which have covering range been with this a wide concerned issue factual e., but situations all of them with the common characteristic —i. contracting-out Agreement of work involved occurred under an contracting-out provision specifically contained no mentioned work.”
express provision excluding particular grievance from arbitration, only we think the most forceful evidence of a purpose to exclude the claim pre- from arbitration can vail, particularly where, here, the exclusion clause is vague and the quite arbitration clause broad. Since any attempt by a court to infer such a purpose neces- sarily comprehends merits, the court should view suspicion with an attempt persuade become entangled the construction of the provi- substantive sions of a agreement, through labor even the back door of interpreting the clause, when the alternative is to utilize the services of an arbitrator.
The alleged that the contracting out was a violation of the bargaining agreement. collective There was, therefore, dispute “as to the meaning applica- provisions tion of the of this Agreement” which the agreed had would be arbitration. determined judiciary sits these cases to bring into operation process an arbitral regime substitutes a of peaceful settlement for the regime older of industrial conflict. Whether in the present out case violated the question. It for the arbiter, not for the courts. Reversed
Mr. Justice Frankfurter concurs in the result. Mr. Justice Black part took no in the consideration or decision of this case. opinion Brennan, joined Mr. Justice
[For Mr. Justice Harlan, Frankfurter Mr. ante, Justice see p. 569.] Whittaker,
Mr. Justice dissenting. I today, Until have understood it to be the unques- tioned law, as this has consistently Court held, that arbi- private judges trators are chosen the parties to decide *11 submitted; con the specifically matters particular to arbitrators are submitted matters tract under which authority limit of their the source and is at once final decide issues with power their to power;2 courts, functions of the ousting the normal ity, thus parties, agreement definitive upon clear, rest v. implied. United States can never be powers as such Trust Moorman, 462;3 Mercantile Co. v. 457, S. 338 U. & Hnos. Fernandez Hensey, 298, S. 309.4 See also 205 U. Mills, Cir.);5 809, (C. A. Rice 119 F. 2d 815 1st v. Rickert Co., Mfg. 284, 252 Y.N. Marchant v. Mead-Morrison Milling Co. Continental & Feed 391;6 169 N. E. 299, 386, 1 judges “Arbitrators are chosen to decide matters Marsh, 344, v. Burchell 17 349. submitted to them.” How. 2 were selected was “The under which [the arbitrators] authority, award, to be at once the source and limit their binding, must, form, to the submission.” in substance and conform added.) Garrett, 589, Ins. v. F. (Emphasis Co. 125 590 Continental (C. Cir.) Opinion by Judge, Justice, Mr. Lurton. A. 6th later — 3 parties to submit their con “It is true that the intention of disputes the courts should be tractual determination outside final added.) by plain language.” (Emphasis United made manifest Moorman, 457, States v. U. S. 462. 338 4 requires “To certificate conclusive make such arbitrator’s] [an plain language (Emphasis implied.” It is not to be contract. added.) Hensey, 298, Trust v. Mercantile Co. 205 U. S. 309. 5 required any question party is “A never to submit arbitration agreed submit, providing he has not so and contracts which party carefully will be in order not to construed force he did not intend to be to submit to arbitration a added.) (Emphasis Fernandez Hnos. v. Rickert Rice submitted.” & Cir.). (C. Mills, 809, A. 1st 119 F. 2d Justice, leading case, Judge, said: In this later Mr. Cardozo intention, question is to be ascertained the same “The one generally. No applied ... one is under tests that are contracts helpful duty tribunals, however to resort these conventional signified except to extent that he has his will- processes, their ingness. of'the of arbitration not Our own favor disfavor cause v. A. Doughnut Corp., 669, 676, 447, 450;7 186 Md. 2d Weisser, Jacob v. 207 Pa. 56 A. 1067.8 I 484, 489, today departs believe that the Court from the established principles announced in these decisions.
Here, employer operates shop for the normal barges, maintenance of its but is not equipped to make major repairs, and accordingly employer from has, beginning operations years of its more than 19 ago, con- tracted major out its repair During most, work. if all, of this time the union has represented employees in that unit. The District Court that “[throughout found the successive labor agreements between these parties, *12 including present the . . one, . has unsuc- [the union] cessfully sought to in negotiate changes the labor con- g>nd tracts, particularly during negotiation the of the present agreement, labor . . . which would have limited to appraisal count as a thought factor in the of others.” Mfg. Co., (Emphasis added.) Marchant v. Mead-Morrison 252 N. Y. 284, 299, 386, 169 N.E. 391. case, Court, In this quoting Judge the language after Cardozo’s supra, Marchant, saying in that intention,” “the is one of said: policy agreement
“Sound demands that terms the of arbitration upon be power pass strained to discover to matters in dis- pute, but the juris- terms must be clear and unmistakable to oust the Court, by jury away any diction the trial be cannot taken of for merely by implication.” Milling case added.) Continental (Emphasis Doughnut Corp., & Feed Co. v. 676, 669, 447, 186 Md. A. 450. 8 “But, any under circumstances, before the decision of an arbitrator conclusive, can be held appear, final and it must as was said in Chandley Cambridge Springs, Bros. v. 230, that 772, 200 Pa. 49 Atl. power pass upon given subject-matter, clearly to the to him. ‘The agreement They terms the are not to strained to discover it. of jurisdiction courts; must be clear and unmistakable to oust the of by jury away by implication merely trial cannot taken ” Weisser, case! added.) Jacob v. (Emphasis 484, 489, 207 Pa. A. 1067. practice [employer] continue the right 702, 704-705. Supp. F. out such work.” 168
contracting for arbi- provides here agreement The labor involved interpretation appli- respecting the disputes tration some other also and, arguably, cation of the arbitration section paragraph of the things. But the first man- a function of strictly says: “[M]atters under this subject shall not be agement years in the for 19 Although acquiescing section.” contracting out was interpretation that work employer’s having repeat- “strictly management,” a function of negotiation agree- in the edly particularly tried — unsuccessfully, to induce ment involved here —but prohibit to a covenant would employer agree work, having agreed after contracting union, out from presented “griev- signed involved, to and the contract employer’s contracting out ground ance” on the employees when some the unit were laid work, at time work, partial for lack of “lockout” off constituted provision of the antilockout employees violation agreement. employer
Being agree unable to cease persuade agree “griev- out work or to to arbitrate the ance,” brought Court, this action in the District union *13 Management Act, of the Labor Relations § under 185, compelling employer the § 29 U. S. C. decree “grievance” to the to submit arbitration. The District holding Court, was, that the out of work interpreted had long dealings over course of been be, “strictly a of parties understood the function management,” specifically was therefore excluded terms the contract, from arbitration the of denied the prayed, Supp. Appeals relief 168 F. 702. The Court of affirmed, granted certiorari. 633, 269 F. 2d and we U. S. 912. judgment
The Court now reverses of Court It that Appeals. holds the arbitrator’s source lawof express “not confined to the provisions contract,” of the that may arbitration should be ordered “unless it be said with positive assurance that the arbitration clause is not interpretation susceptible that covers the asserted that dispute,” arbitrability] should be “[d]oubts [of resolved in favor coverage,” and that as when, here, “an absolute no-strike clause is included the agreement, then . . . everything management subject that does is I understand the Court thus to hold that [arbitration].” express arbitrators not confined to the provisions that contract, arbitration is to ordered unless it be said with positive assurance that arbitration a par- dispute ticular contract, excluded that doubts of arbitrability are to be resolved favor of arbitration, here, and that as when, contract contains no-strike clause, everything management subject does is arbitration. entirely
This is an strange new and doctrine to me. I suggest, with departs deference, from both the con- tract of controlling decisions of this I Court. find nothing purports contract that to con- upon fer arbitrators general private such breadth of judicial power. The no legislative judicial Court cites authority gives that creates for or to arbitrators such broad general powers. I respectfully And today’s submit that decision squared cannot be with the statement of Judge, later Mr. Justice, Cardozo in Mar chant that “No one is duty under a resort these conventional tribunals, helpful however processes, their except to the extent that he has signified willingness. his Our own favor or disfavor cause arbitration is not to count factor appraisal of the thought of others” (emphasis added), 252 N. 169 N. Y., atE., 391; nor with his state- *14 intention, one question is that case
ment “[t]he to applied that are tests by the same to be ascertained statement id.; nor with this Court’s generally/’ contracts to submit the Moorman, parties intention of “that the outside final determination disputes to their contractual language” plain he made should the courts manifest Court’s nor with this S., 462; at added), U. (emphasis arbitra- make such Hensey that: “To [an statement in the language requires plain certificate conclusive tor’s] added.) implied.” (Emphasis It not to be contract. to submit required “A party never S., 205 U. at 309. to agreed he has not so which any question to arbitration will providing submit, and contracts submit party not to carefully in order construed force to be not intend which he did to arbitration a v. added.) & Hnos. Fernandez (Emphasis submitted.” Mills, (C. A. 119 F. at 1st supra, 2d, Rickert Rice Cir.). in the con- nothing I there is submit that respect,
With employer “signified here indicate that the [its] tract arbi- (Marchant, 299) at to submit to supra, willingness” out contracting work. Cer- trators whether it cease lan- by plain “made manifest tainly no such intention is “requires,” as the guage” (Moorman, supra, 462), law Hensey, implied.” consent “is not to be because such 309.) contrary, parties by To their con- supra, at many years interpreted duct over out “strictly manage- a function of major repair work ment,” and if, concurring opinion suggests, only by words the contract can “be understood reference rise to then background gave inclusion,” their interpretation years over given phrase strictly “matters which are function have management” logically significance should some By contract, parties agreed here. their “matters *15 strictly a management which function of shall not subject arbitration.” The union over the course of many years repeatedly employer tried induce the agree covenant prohibiting out of work, but was never successful. The union again made such an in negotiating very effort contract involved here, and, failing of success, signed the contract, knowing, of course, that it covenant, did contain such but that, contrary, to the it as had contained, just the former contracts, a strictly covenant that “matters which are management function of subject shall not be to arbitra- tion.” that, 'Does not this show signifying instead of willingness to submit to arbitration the matter of whether the employer might continue to contract out work, parties fairly agreed to exclude at least that matter from arbitration? Surely it cannot be said that agreed by any to such a “plain submission language.” Moorman, at supra, Hensey, supra, at 309. Does not then the opinion compel Court’s employer “to submit to question arbitration which has not [a] [it] agreed Hnos., so to (Fernandez submit”? supra, & 815.)
Surely particular whether a subject or subjects class of is or is not made arbitrable con- tract is a judicial question, if, as the concurring opin- ion suggests, may “the court conclude that [the contract] commits to any [subject or class of subjects],” it likewise conclude that the contract does not subject commit such subjects class of to arbitration, that finding the “[w]ith court will have exhausted its function” no more nor less denying arbitration than by ordering it. Here the District Court found, and the Appeals Court of approved its finding, the terms of the contract, as interpreted by the parties over 19 years, contracting out “strictly of work was a function That subject to arbitration.” “not management” Acceptance accepted here. I finding, think, should judgment. requires affirmance no proper have that courts the Court I with agree by contract “merits” claims concern with exclusive to the *16 agreed to submit parties have is one question But of arbitrators. jurisdiction jurisdic- upon Neither entrench jurisdiction. in their Did the other. The test is: tion of swpra, plain language” (Moorman, “manifest contract the issue contro- their to submit 462) willingness the arbitrators they did, If then versy to arbitrators? absent jurisdiction it, courts, exclusive have jurisdiction that exclusive respect must like, fraud they not, But if then the courts interfere. did and cannot invoked, properly jurisdiction, their when exercise use arbi- attempted citizen protect against actually never conferred. pretended powers trators of be, always nature must very That and from its is, to the judicial question presented Such was the one. They here. Appeals and the Court of District Court the settled jurisdictional facts, properly applied found the I facts, correctly decided the case. law to those judgment. would affirm the therefore