Controlled Sanitation Corp. v. District 128 of the International Ass'n of Machinists & Aerospace Workers

OPINION OF THE COURT BIGGS, Circuit Judge. On September 22, 1970, plaintiff-appellee, Controlled Sanitation Corporation (the Company) filed an amended complaint against District 128 and Lodge 2305 of the International Association of Machinists and Aerospace Workers, AFL-CIO, (the Unions), defendants-appellants, basing its suit on section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. The Company alleged that (1) a collective bargaining agreement existed between the Company and the Unions; (2) during its term on July 1, 1969 the Unions struck in violation of the no-strike clause contained in the agreement; and (3) as a result of the strike the Company “suffered the loss of its contract with the City of Scranton for the collection and disposal of refuse . . . .” The Company sought money damages for the alleged injury. The Unions denied that they had an agreement with the Company and asserted that if an agreement was found to exist all other issues presented were subject to determination by arbitration in accordance with the terms of that contract. A bifurcated jury trial ensued, and at the close of the first phase two questions were submitted to the jury, and were answered “Yes”. Interrogatory No. 1 asked the following question: “Did the defendant unions agree to be bound by the provisions of the contract entered into by the City of Scranton and Controlled Sanitation, including the provisions of the Administrative Agreement [the collective bargaining agreement] which is a part of that contract?” 1 Appendix, p. 166. — 1326 — At the second phase of the trial, devoted primarily to the issue of the amount of damages, the jury was instructed to determine the amount of damages, if any, which the Company suffered because of its loss of the contract. The jury assessed damages in favor of the Company in the sum of $208,-000 and judgment was entered forthwith against the Unions in the sum indicated.2 The Unions moved for a new trial, and in their brief in support of these motions3 urged, among other things, that if there was found to be a contract, arbitration should be employed to determine the remaining issues.4 On appeal, the Unions raise the arbitrability issue and acquiesce in the jury’s determination that there was a collective bargaining agreement between the parties. Definitely, therefore, the issue of the existence or lack of existence of an agreement is not presented by this appeal. Two issues are raised on this appeal, and both relate to the question of whether, once the existence of the contract was established, the proper forum for the resolution of this controversy lay in the judicial process or in arbitration. We are required, first, to determine whether the contract’s arbitration and grievance procedures bound the Company to submit its claim for damages due to the strike of July, 1969 to arbitration. If they did, we must then confront the Company’s contention that judicial proceedings were warranted because the Unions’ conduct constituted a repudiation of the arbitration provisions. We find that the broad arbitration provisions of the contract encompassed this controversy and envisioned its submission to arbitration. Similarly, we believe the repudiation question is also subject to arbitration. — 1327 — I. The contract contains a standard no-strike clause (Article XVI) and grievance and arbitration procedure. Section I of Article XIII reads: “For the purpose of this Agreement, the term ‘Grievance’ means any dispute between the Employer and the Union or between the Employer and any employee concerning the effect, interpretation, application, claim of breach or violation of this Agreement or any other dispute which may arise between the parties.” The procedure for handling grievances is detailed in Article XIII as follows: “Section 2. Any such grievance shall be settled in accordance with the following grievance procedure: A. The dispute or grievance shall be taken up by the Steward, the aggrieved employee and the foreman of the department involved within 24 hours of the occurrence of the alleged grievance'. The foreman shall render a decision, by the close of the working day if handed in before noon, otherwise by noon of the following day. B. If no satisfactory settlement is reached between the Steward, and the foreman, the grievance shall be reduced to writing. The Shop Committee shall then investigate, present and discuss such grievance with the designated Employer official, who shall render a decision within two (2) working days. C. If no satisfactory settlement is reached, the Shop Committee shall call in the Business Representative and/or Grand Lodge Representative of the International Association of Machinists and Aerospace Workers who shall meet with the designated Employer official and the Shop Committee. . . . ”5 The agreement provided for the resolution of any unresolved grievance by arbitration as follows: “In the event the grievance or dispute is settled, such settlement shall be reduced to writing and copies distributed to all persons involved. In the event the grievance or dispute is not settled in a manner satisfactory to the grieving party (Union or Employer), within five (5) days, the grieving party may proceed, as follows: a Board of Arbitration shall be selected and such Board shall consist of one (1) member selected by the Union and one (1) member selected by the Employer. In the event these two (2) members of the Board fail to agree upon the disposition of the grievance or dispute within five (5) working days after meeting for this purpose, then they shall attempt to select a third member who shall act as chairman. If the parties fail to agree upon the third member, they shall petition the Court of Common Pleas of Lackawanna County to provide or select a third member. The decision of the majority of the Board shall be final and binding upon the parties to this agreement and shall be complied with within five (5) days, longer if agreed to by the parties, after the decision has been reached. Each party to this agreement shall pay 50% of the cost of the third member.” (emphasis added). Article XIII, Section 2(D). Finally, the agreement provided that the grievance-arbitration procedure provided would be the sole means for settling disputes (Article XIII, Section 6): “The grievance procedure as provided for herein shall constitute the sole and exclusive method of determination, decision, adjustment or settlement between the parties of any and all grievances as herein defined and the said grievance procedure provided herein shall constitute the sole and exclusive remedy to be utilized by the parties hereto for such determination, decision, adjustment, or settlement of any and all grievances and disputes as herein defined, whether or not either party to the contract considers the same as a material breach of the contract or otherwise.” (emphasis added). — 1328 — II. There are certain aspects of unfairness, we believe, in permitting the Unions to first deny — a vigorous denial which lasted for a period of approximately three and a half years — the existence of a valid contract for arbitration, and then when they have lost that point to permit them to assert that they are entitled to arbitration under the contract. We would have grave doubts about enforcing the arbitration proceeding if it were not for more important governing circumstances. First and most important are a series of decisions of the Supreme Court of the United States in which the Court has emphasized that arbitration of labor disputes is a federally favored policy under the Labor Management Relations Act, 29 U.S.C. § 141 et seq. Consequently, although the parties are bound to arbitrate only those disputes which they have agreed to arbitrate, all doubts or ambiguities should be resolved in favor of arbitration. In effect, there is a presumption in favor of arbitrability which should be dispelled only when the agreement explicitly exempts certain conduct from arbitration or when the terms of the agreement, read as a whole, clearly envision non-arbitrability. Typical of these decisions is United Steelworkers of America v. Warrior & Gulf Co., 363 U.S. 574, 581-585, 80 S.Ct. 1347, 1353, 1354, 4 L.Ed.2d 1409 (1960), which stated: “Apart from matters that the parties specifically exclude, all of the questions on which the parties disagree must therefore come within the scope of the grievance and arbitration provisions of the collective agreement. . . . 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 of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage. ... 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.” (emphasis added).6 Applying these precepts to the arbitration provisions of the agreement in this case, we must rule that the Company’s damage claim for breach of the no-strike clause is a dispute susceptible to arbitration. We are aware, of course, that the Company contends that the agreement delineates a grievance procedure oriented solely to employee grievances. In so doing, it points to the procedures established in Article XIII, Section 2(A), (B), and (C). In view of the language employed in the contract, however, we cannot accept this argument. The grievance and arbitration provisions of this contract are unusually broad. Section 1 of Article XIII makes clear that a grievance includes a dispute between the employer and the union involving a claimed breach of contract. Most importantly, Section 2(D) of that article specifically states that the employer may be the grieving party. A fair interpretation of the contract would — 1329 — then indicate that an employer — oriented grievance (i. e., an unsettled dispute) begins with the arbitration process or with Section 2(C). Finally, Section 6 of Article XIII represents a strong statement evidencing the parties’ intention that all disputes between the employer and the union, regardless of whether either party considers the dispute a material breach of contract, be subject to arbitration. Under these circumstances, the Company bound itself to arbitrate this damage claim.7 III. We turn to a consideration of the Company’s argument that the Unions repudiated the arbitration procedures, thereby permitting the Company to obtain judicial redress. There is an underlying and preliminary question here as to whether the alleged defense of repudiation is itself subject to arbitration, and the Unions urge us to hold that repudiation is an arbitrable question. This position, if valid, means that the district court, after finding the existence of a contract, should have required the parties to present to arbitration all other issues including repudiation itself. This is indeed a difficult question to answer and the law in respect to it is somewhat unclear. We acknowledge that “the circumstances of the claimed repudiation are critically important” for they determine whether an arbiter or a court will resolve the underlying dispute. Drake Bakeries v. Bakery Workers, 370 U.S. 254, 262-263, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962). In Drake Bakeries, the employer sued the union for damages resulting from an alleged one day strike. The union sought to stay the suit pending arbitration, but the employer opposed the stay arguing that the dispute was not arbitrable or, in the alternative, that the Union had repudiated the arbitration provisions. The Supreme Court held that the district court had properly stayed the action pending completion of arbitration. In rejecting the repudiation argument, the Court quoted from 6 Cor-bin, Contracts § 1443 (1961 Supp., n. 34, pp. 192-193) which suggests that the issue of repudiation is one for judicial resolution.8 370 U.S. at 263, n. 10, 82 S.Ct. 1346. It then proceeded to rule that the union’s actions did not excuse the employer from its duty to arbitrate. Implicitly, repudiation would appear a justiciable issue.9 — 1330 — On the other hand, we must consider the effect of Operating Engineers Local 150 v. Flair Builders, Inc., 406 U.S. 487, 92 S.Ct. 1710, 32 L.Ed.2d 248 (1972). In Flair, the Union brought an action seeking damages and injunctive relief from the Flair Corporation alleging breach of their collective bargaining agreement. In 1964 the Union had entered into an agreement with Flair, incorporating by reference the 1963 master agreement between the Union and several contracting associations. The Union and these associations in 1966 entered into a new master agreement requiring arbitration of “any difference . . . between the parties hereto which cannot be settled by their representatives within forty-eight hours of its occurrence.” In 1968, four years having passed since the memorandum agreement was signed, a Union business agent found that four of Flair’s employees were non-union and that their wages were unsatisfactory. Flair refused to recognize any obligation under the 1964 agreement. Subsequently, in November, 1968, the Union filed suit to compel arbitration according to the terms of the 1966 master agreement. After an evidentiary hearing, the District Court, in an unreported opinion, decided there was an enforceable agreement between the company and the Union during the period 1964r-68, but that the Union was barred by laches. The Court of Appeals affirmed, Operating Engineers Local 150 v. Flair Builders, Inc., 440 F.2d 557 (7th Cir. 1971). The Supreme Court, however, reversed, holding as we read the opinion that the court’s duty was limited to deciding whether the parties had entered into an enforceable agreement to arbitrate and that “once a court finds that, as here, the parties are subject to the agreement to arbitrate, and that agreement extends to ‘any difference’ between them” it is required to submit the case to arbitration. 406 U.S. at 491-492, 92 S.Ct. at 1713.10 The Court particularly emphasized that the parties had agreed to arbitrate “any difference.” 406 U.S. at 491, 92 S.Ct. 1710. Moreover, in reaching this result, the Court cited John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), a case which had been distinguished by the Court of Appeals. 406 U.S. at 490, 92 S.Ct. 1710. In Wiley, the employer had acquired by merger a company with an existing collective bargaining agreement. Following several disputes with the employer over employee rights, as well as pension fund payments, the Union brought an action to compel arbitration. The employer insisted, inter alia, that it had no duty to arbitrate because either (1) it was not bound by a collective bargaining agreement executed by its predecessor prior to the merger or (2) the Union had failed to utilize the prearbitration conferences required by the agreement. Justice Harlan, writing for a unanimous Court in Wiley, held that the employer was bound by its predecessor’s collective bargaining agreement. 376 U.S. at 550-551, 84 S.Ct. 909. He also concluded that the arbitrator should de — 1331 — termine the effect of the union’s alleged failure to follow the procedures mandated in the agreement. The Court indicated that labor disputes may not be broken into procedural and substantive aspects but should be considered as clustered problems. Justice Harlan explained: “Doubt whether grievance procedures or some part of them apply to a particular dispute, whether such procedures have been followed or excused, or whether the unexcused failure to follow them avoids the duty to arbitrate cannot ordinarily be answered without consideration of the merits of the dispute which is presented for arbitration. In this case, one’s view of the Union’s responses to Wiley’s ‘procedural’ arguments depends to a large extent on how one answers questions bearing on the basic issue, the effect of the merger; e. g., whether or not the merger was a possibility considered by Wiley and the Union during the negotiation of the contract. It would be a curious rule which required that intertwined issues of ‘substance’ and ‘procedure’ growing out of a single dispute and raising the same questions on the same facts had to be carved up between two different forums, one deciding after the other. Neither logic nor considerations of policy compel such a result. “Once it is determined, as we have, that the parties are obligated to submit the subject matter of a dispute to arbitration, ‘procedural’ questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator. Even under a contrary rule, a court could deny arbitration only if it could confidently be said not only that a claim was strictly ‘procedural,’ and therefore within the purview of the court, but also that it should operate to bar arbitration altogether, and not merely limit or qualify an arbitral award. In view of the policies favoring arbitration and the parties’ adoption of arbitration as the preferred means of settling disputes, such cases are likely to be rare indeed. In all other cases, those in which arbitration goes forward, the arbitrator would ordinarily remain free to reconsider the ground covered by the court insofar as it bore on the merits of the dispute, using the flexible approaches familiar to arbitration. Reservation of ‘procedural’ issues for the courts would thus not only create the difficult task of separating related issues, but would also produce frequent duplication of effort.” 376 U.S. at 557-558, 84 S.Ct. at 918 (emphasis added). We believe the Flair and Wiley cases compel us to avoid the repudiation question in this ease and to require that it, also, be submitted to arbitration. The Company’s contention that the Unions’ actions amounted to a repudiation of the agreement to arbitrate necessarily involves a consideration of questions requiring an interpretation of contractual terms and relating to the merits of the dispute.11 Likewise, it represents a dispute between the parties “concerning the interpretation, application, claim or breach or violation of” the collective bargaining agreement. Accordingly, it is subject to the agreement’s arbitration procedures. We note that several courts posed with this question have reached the same result. H & M Cake Box, Inc. v. Bakery Workers Local 45, 493 F.2d 1226 (1st Cir. 1974); General Dynamics Corp. v. Marine Workers Local 5, 469 F.2d 848, 853-854 (1st Cir. 1972); Granny Goose Foods, Inc. v. Teamsters, 88 LRRM 2029, 2033 (N.D.Cal.1974). See also Radio Corp. of America v. Association of Professional Engineering Personnel, 291 F.2d 105, 110 (3d Cir. 1961); Local 542 v. Penn State Construction, — 1332 — Inc., 356 F.Supp. 512, 513-514 (M.D.Pa.1973); Case Note, 43 Fordham L.Rev. 880 at 884-885 (1975). But see NLRB v. State Electric Service, Inc., 477 F.2d 749 at 751—752 (5th Cir. 1973) (holding, however, that since breach of a no-strike clause is not enough to relieve the employer of the duty to arbitrate, it cannot be held to have vitiated the entire contract), cert. denied, 414 U.S. 911, 94 S.Ct. 234, 38 L.Ed.2d 149 (1973). In reaching the conclusion that the district court should have entered an order requiring the parties to arbitrate all issues,12 except that involving the existence of the contract, we remain mindful of the Supreme Court’s language in Drake Bakeries, supra, 370 U.S. at 266, 82 S.Ct. at 1353: “If the union did strike in violation of the contract, the company is entitled to its damages; by staying this action, pending arbitration, we have no intention of depriving it of those damages. We simply remit the company to the forum it agreed to use for processing its strike damage claims. That forum, it is true, may be very different from a courtroom, but we are not persuaded that the remedy there will be inadequate. Whether the damages to be awarded by the arbitrator would not normally be expected to serve as an ‘effective’ deterrent to future strikes, which the company urges, is not a question to be answered in the abstract or in general terms. This question, as well as what result will best promote industrial peace, can only be answered in the factual context of particular cases.” (footnote omitted). In view of this disposition, it is not necessary to pass upon other questions presented by the parties. The judgment will be vacated and the cause remanded with direction to the District Court to order arbitration on the issue of repudiation and all other issues consequential to it. Footnotes [1] Interrogatory No. 2, also submitted to the jury, was as follows: “Was the refusal of C & A Bonding Co. to execute a performance bond on the application of Controlled Sanitation Corporation in favor of the City of Scranton caused by the strike of July 1, 1969?” Appendix, p. 166. The relevance of this question to the issue of damages becomes clear in light of the fact that the city terminated its contract with the Company because of the Company’s failure to obtain the bond. On this appeal, the Unions insist that the district court erred in excluding evidence that an earlier bond was obtained through forgery by the Company’s insurance agent, albeit without the knowledge or complicity of the Company. In view of our disposition of this case, we find it unnecessary to discuss or resolve this issue. [2] As is correctly stated in note 1, pp. 3-4 of the appellants’ brief: “Entry of judgment was based upon the following explanation made by the District Court in chambers prior to submission of the damage issue to the jury (Afppendix] p. 266): ‘The Court and counsel have conferred and we have arrived at the following: In the event of a verdict awarding damages to the plaintiff, it has been agreed that I will enter judgment on the verdict and Mr. Kelly [representing the Unions] will present his other defenses, which he has reserved, all of them, both factual and legal, in post-trial motions, and Mr. Littleton has agreed in view of the posture of this whole case that there will be no interest on the judgment until I rule on the post-trial motions because that would be the situation if we did not do this, if I did not enter judgment you would not be getting interest.’ ” [3] The Unions took the position, as has been indicated, that there was no contract and hence no arbitration agreement in existence, but they clearly reserved the right that should the court find otherwise then the dispute should be submitted to arbitration. The Company seems to take the position that the Unions are in effect estopped from asserting such a defense because they originally insisted there was no contract. We cannot agree with this position, and it seems to be unsupported by either adequate authority or logic. [4] The district court denied these motions in an order not accompanied by a written opinion. Consequently, in determining whether issues other than the existence of a contract should have been subject to the judicial process rather than arbitration, we find ourselves without the benefit of the district court’s reasoning. Nor do the record or briefs reveal the exact basis for the district court’s action. As we will explain, appellee suggests that (1) this controversy did not fall within the arbitration mechanism of the agreement or (2) if it did, the Unions by their actions repudiated the agreement. It deserves mention that in a memorandum opinion of September 10, 1970, denying the Unions’ motion to dismiss, the district court noted that “neither the plaintiff in its complaint nor the defendant in its motion, seek to have the court order arbitration.” It further explained that the right to arbitrate may be waived. Memorandum Opinion of September 10, 1970, p. 3, n. 1. Later, on February 11, 1971, in a memorandum opinion denying the Unions’ motion to dismiss the amended complaint, the district court stated that the Unions’ request for arbitration was premature since the issue of whether a contract existed must first be determined. Under these circumstances, we surmise that the district court did not ground its rejection of arbitration on the theory that the Unions’ request for arbitration was untimely. In any event, the parties have not raised that issue on this appeal. [5] Section 3 of Article XIII stipulates: “General grievances or disputes affecting the employees in a Unit as a whole and discharge grievances may be initiated by the Shop Committee directly at Step B.” [6] Quoted in Affiliated Food Distributors, Inc. v. Local Union No. 229, 483 F.2d 418 at 422 (3d Cir. 1973) (Adams, J., dissenting). The Warrior & Gulf Co. case formed part of the Steelworkers trilogy in which the Supreme Court enunciated the presumption of arbitrability rule. See also United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The Supreme Court has expressed similar sentiments on numerous occasions. See e. g., Gateway Coal Co. v. UMW, 414 U.S. 368 at 377-379, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974); Atkinson v. Sinclair Refining Co., 370 U.S. 238 at 241, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962) (contract not susceptible to construction requiring employer to arbitrate damage claim for breach of no-strike clause). See generally Note, 43 Fordham L.Rev. 880 at 881-882 (1975). [7] These provisions clearly distinguish this case from Affiliated Food Distributors, Inc. v. Local Union No. 229, 483 F.2d 418 (3d Cir. 1973), which involved an agreement of substantially narrower phraseology. Drawing every inference and construing every clause in favor of the Company, we would find it difficult to decide whether the parties intended arbitration of this dispute. Under the Steelworkers trilogy, such an ambiguity must be resolved in favor of arbitration. By such an illustration, we merely emphasize the breadth of this particular agreement. In fact, we do not find this agreement ambiguous. We do note that each case, though subject to the above-stated rule, must be decided on the basis of its own particular collective bargaining agreement. [8] The quote from Corbin included the following pertinent statement: “One who flatly repudiates the provision for arbitration itself should have no right to the stay of a court action brought by the other party.” [9] In Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), an employee, alleging wrongful discharge by the employer, sued union officials who had decided not to take his grievance to arbitration — the fifth and last step of the grievance procedure. The Court defined the problem as one requiring it to determine what circumstances would permit judicial review of such claims even though relief has not been sought through procedures afforded by the contract. The Court noted: “An obvious situation in which the employee should not be limited to the exclusive remedial procedures established by the contract occurs when the conduct of the employer amounts to a repudiation of those contractual procedures. Cf. Drake Bakeries v. Bakery Workers, 370 U.S. 254, 260-263 [82 S.Ct. 1346, 1350-1352, 8 L.Ed.2d 474]. See generally 6A Corbin, Contracts § 1443 (1962). In such a situation (and there may of course be others), the employer is es-topped by his own conduct to rely on the unexhausted grievance and arbitration procedures as a defense to the employee’s cause of action.” 386 U.S. at 185, 87 S.Ct. at 914. At least one court has intimated that there — 1330 — may be a distinction between the type of forums necessary to resolve Vaca v. Sipes repudiation claims and repudiation claims of the variety presented here. Granny Goose Foods, Inc. v. Teamsters, 88 LRRM 2029, 2031, n. 4 (N.D.Cal.1974). The resolution of such an issue is beyond the scope of the instant appeal. [10] The implications of the Court’s opinion on other affirmative defenses, including repudiation, in cases involving similarly wide-ranging arbitration agreements were left unstated by the majority in Flair. Mr. Justice Powell, however, commented in dissent: “The effect of the Court’s decision also could be far reaching in the law of labor-management relations. It appears that the long-accepted jurisdiction of the courts may now be displaced whenever a collective-bargaining agreement contains a general arbitration clause similar to that here involved. If in such circumstances the affirmative defense of laches can no longer be invoked in the courts, what of other affirmative defenses that go to the enforceability of a contract? Does the Court’s opinion vest in arbitrators the historic jurisdiction of the courts to determine fraud or duress in the inception of a contract?” 406 U.S. at 497, 92 S.Ct. at 1715. [11] The controversy revolves around the Unions’ insistence that the Company was not at liberty to reduce the number of workers. Whether the Company attempted such a reduction, whether the Company was bound— contractually or otherwise — to maintain a certain number of employees, and whether the Unions’ strike was in violation of the agreement are issues pertinent to the repudiation question as well as the underlying dispute. [12] We do not presume it necessary to enumerate the issues which the arbitration panel must resolve. Suffice it to say that, if the panel determines that the Unions did not repudiate the arbitration agreement, the panel should proceed to determine the legality of the strike and, if necessary, all questions relating to the amount and scope of damages suffered by the Company. See note 1, supra.