STEELWORKERS v. AMERICAN MFG. CO.

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Argument of David E. Feller

Chief Justice Earl Warren: Number 360, United Steelworkers of America, Petitioner, versus American Manufacturing Company.

Mr. Feller, you may proceed with your argument.

Mr. David E. Feller: May it please the Court.

This case, number 360, the American Manufacturing case is the first of three cases which the Court has set down for a consecutive argument which deal generally with the questions of the role of the courts in enforcing arbitration and enforcing arbitration awards in suits arising under Section 301 of the Taft-Hartley Act in consequence to this Court's decision in the Lincoln Mills case, 353 U.S. just a little more than two years ago.

Two other cases, the first two, number 360 and number 443, involved a refusal by a company to arbitrate grievances.

The third case involves the case where there was a refusal to arbitrate, the Court ordered arbitration, the employer refused to comply with the award and the question arises at the tail end of the process as the case comes here in terms of -- of the authority of the Court in enforcing -- the role of the Court in enforcing the arbitration award.

Now, before we get into the three cases, I think one thing should be said about all three.

All three represent normal collective bargaining agreements.

There are differences in the arbitration provisions and we'll advert to them as we come to them but there's nothing peculiar about the contracts involved here.

But the cases are peculiar.

They are atypical in the sense that the question is here at all.

Grievances like the grievances involved in these three cases are being arbitrated by the hundred and thousands everyday under arbitration clause, is no different to these.

It is a rare case.

I think Harry Shulman once said it that -- and I think perhaps it was reflected in the opinions -- has been reflected in the opinions of this Court that it is the atypical case that gets into litigation.

Now, the reason I stressed that point that in dealing with cases which are atypical because of the employer's refusal to arbitrate the kinds of grievances which most employers arbitrate under similar contracts.

The Court, in dealing with this fringe kind of employers if I may so, will necessarily have an effect.

The decision will necessarily have an effect on the arbitration process as it is practiced throughout the country in industrial relations generally.

I think every informed student of the subject has expressed concern about some of these very cases because of the effect which they will have, unnecessarily have in the arbitration process which is so far undisturbed.

And so with that preliminary statement, let me turn to a statement of the facts in the American Manufacturing case.

Facts in this case are relatively simple.

Contract was executed in December 1956.

It contained an arbitration provision which is perhaps we have referred to it as the same as the standard arbitration provision.

It's set out in full in the record, several places in -- for convenience on our brief.

We have a combined brief in those three cases on page 43.

The arbitration provision in this agreement provides that, “Any disputes, misunderstandings, differences or grievances arising between the parties as to the meaning, interpretation and application of the provisions to this agreement, which are not adjusted as herein provided, may be submitted to the Board of Arbitration for decision.

The arbitrator may interpret the agreement and apply it to a particular case but shall have no authority to add to, subtract from, or modify the terms of the agreement.

The final clause of the decision of the arbitrator shall be final and binding.”

In the footnote at that page, we have indicated that this is in substance, the arbitration provision which has become the standard American arbitration provision.

Variations in language occur but essentially, it limits the arbitration to questions of interpretation and application and provides that the decision shall be final and binding.

Now, during the course of this agreement, of course it contains other provisions on the arbitration clause, it contains a seniority clause.

During the term of this agreement, the grievant, a man named Sparks, suffered an injury to his back on March 1957.

He -- within a few weeks after he suffered the injury, he filed a very simple petition asking for workmen's compensation under the Tennessee law filed in the court.

In September 1957 while he was still off from work, the workmen's compensation proceeding was settled on a compromised basis.

The settlement recited that there was a dispute as to whether there had been an injury in the course of employment.

But there was a dispute as to whether Sparks was temporarily disabled and the extent of his temporary disability.

There was also a dispute as to whether he was permanently disabled and the extent of his permanent disability and that the settlement as a compromise of these various disputes would seem to be a fair compromise and the matter what's settled.

Thereupon, Sparks applied for reinstatement to his job and submitted to the employer a statement that he was able to return to his job without danger to himself or to others.

Well, this is not an unusual case, there are many people who have partial disabilities who are working.

And the fact that a man gets a partial disability payment doesn't necessarily preclude him from working.

And of course, people do recover from disabilities even if a doctor is of the opinion that the disability will be permanent.

The company refused to reinstate him.Grievance was filed by the union.

Grievance was not settled, the union asked that the grievance be submitted to arbitration claiming that under the seniority provisions of the agreement, Sparks was entitled to return to work.

The company -- this -- this contract as a tripartite Board of Arbitration, sometimes don't.

The union appoints one member.

The company appoints one member.

The two appoint a third man who is really the man who decides the case.

Usually, when you do provide -- so provide, actually, the parties name the third member and the two act just as consultants on either side.

In any case, the union named its member of the Board of Arbitration and he got in touch with the company, the company named its member of Board of Arbitration, then the company suggested that the union submit a name of prospective arbitrators, the union did that.

And then the company said, ”Well, hold off holding -- naming this arbitrator.

We want to examine this Mr. Sparks again.”

And it was held off.

They examined Mr. Sparks again.

The company doctor submitted a report saying that he thought that Sparks was -- still remained disabled and should not be put on a job which required heavy lifting.

That was the extent of his finding.

Thereupon, the company said, ”We refuse to arbitrate on the ground that this matter has been adjudicated in a Court.”

Of course, actually, the Court never adjudicated anything as it was settled.And second of all, even if it had adjudicated anything, it didn't adjudicate the question of whether he was able to return to work.

Most of adjudicated that he had 25% disability which should in fact --

Justice Charles E. Whittaker: How many account of my settlements, Mr. Feller, made under the law of the State.

Is an award made or compromise proved in some way has become permission to action?

Mr. David E. Feller: Well, it's not in Tennessee, it's not in the court, Your Honor.

And the compromise settlement must be approved by the -- I think there's the -- the Circuit Court.

And the approval is listed on page 31 of the record in this case.

There is a decree, settlement approval which is required under the workmen's compensation statute which recites that the Court being of the opinion of the said settlement and compromises proper and in accord with the Court with the workmen's compensation law, it is ordered that it be approved.

Well, the union brought suit to compel arbitration.

The parties cross moved for summary judgment.

The matter was heard on the pleadings in affidavits.

There was no dispute about any of the facts which I have so far stated.

The company -- the District Court gave judgment for the defendant refusing arbitration on the ground that Sparks having asserted and submitted a doctor's certificate saying that in the doctor's opinion, he would remain 25% percent disabled was estopped from asserting his -- any right to reinstatement under the collective bargaining.

The union appealed to the Court of Appeals for the Sixth Circuit.

The Sixth Circuit said, “First, the question of estoppel, if there is one, is one for the arbitrator.”

This maybe a good defense against this claim for reinstatement under the contract but that's a question of the arbitrator, not for the Court.

Also disposed of a -- on a different claim which the company had made that the matter had been adjudicated in the Circuit Court of Hamilton County, Tennessee by saying, “Nothing had been adjudicated in the Circuit Court.”

And then said, ”Well, it is clear that there is a seniority provision in here.

There are limitations on the company's right to discharge employees and there would appear to be a question of the interpretation and application of this agreement which would be arbitrable except as may here and after appear.”

That's almost an exact quote from what the Court said.

And then it went in to the here and after.

They said, “Now, looking at this contract has the seniority clause which says that in cases of promotion and transfer and reemployment, seniority shall be a factor if ability and efficiency are equal.”

Now, we cannot see how anybody can sensibly claim that Sparks' ability and efficiency are equal to those of other employees if he has a 25% percent disability.

Now, his doctor's certificate that he's able to return to work, we think is not evidence of sufficient probative value to even raise a question.

We think this isn't just frivolous, it's baseless.

And we hold that if a grievance is so frivolous and baseless, that it couldn't possibly be granted except to imply there, I suppose by an idiot or a fool, it can't go to an arbitrator.

The implication I suppose being, the arbitrator might be an idiot or a fool.

And so the Court held that the grievance was not arbitrary.

Now, I don't want to get into at length, the Court's reasoning on the contract.

But actually, on any analysis, the Court of Appeals made some rather difficult -- there's also very difficult questions of contract construction and interpretation in order to reach the conclusion that the question was so frivolous that it couldn't go to arbitration because this contract is not at all clear as most contracts are not in many respects.

The seniority provision dealing with promotions, transfers and reemployment was assumed by the Court to deal with the question of a man's right to come back to work when he's been off sick.

There are specific clauses dealing with sickness and disability of the contract but it's not at all clear that a man who was off sick has to meet the requirement that his ability and efficiency be equal to other employees if ask to come back to work after his sickness.

He might have been unequal on the first place.

A very good argument and I think the more logical interpretation of this agreement is that if a man is off sick, there are particular provisions saying he has to give notice that he is going to be off sick to preserve his seniority status.

That if he's off sick, he's entitled to come back to work unless as a result of the sickness, he is dischargeable.

And the Contract Clause does provide for discharges where a man's work is of such quality that he would justify discharge.

And so this question really wasn't a seniority grievance but it was a discharge grievance.

I don't think this Court isn't the arbitrator no more than I think the Sixth Circuit was the arbitrator.

And I don't think that this Court has to get into it.

But it can very well be argued that if I'm off sick and I get a cold and I'm off work for five days and the same rule has to apply in the disability case, I don't have to come back to my job and prove that I'm better or equal in ability as the man who took my job on a temporary basis while I was away.

Most arbitrators would say, “You're entitled to come back to your job unless there is ground for discharging.”

And the question on promotion as to what this clause was written for where two or three people bid for a job, the employer only agrees that if their ability and efficiency are equal then the senior man will get the job.

You're making a comparison between three people.

But when you say, “I'm coming back to work.”

Whose ability and efficiency do you have to equal?

The guy who took your job?

Well, maybe his ability and efficiency are better but then what about some other job which the seniority might be entitled to you in the department.

He measures your efficiency against the -- the least able and the least efficient.

What if there are just plain other people who have 10%, 15%, 25% disabilities?

Justice John M. Harlan: Do you consider that the merits of the Court of Appeals' view of the frivolity, alleged frivolity of this claim before us?

Mr. David E. Feller: No, no.

Your Honor, I should have gone into this at great length because for the very simple reason that it is our central contention here that the Court of Appeals had no business determining whether this grievance was frivolous or not frivolous.

Our contention in this case and to the succeeding case is a very simple one.

When a contract provides that any difference or grievance involving a question of interpretation or application of agreement arrived which cannot be settled and as that grievance will be settled by arbitration.

Then if the employer refuses to comply with that obligation, the only questions for the Court are, one, Is there a question of interpretation or application, a difference as to the meaning of a contract in this case?

And two, Has the employer refused to arbitrate?

Now, there are people and we do not expressly make this contention.

There are those who have said that arbitrability ought to be for the arbitrators.

But we are not making that contention --

Justice Charles E. Whittaker: I didn't understand that.

Mr. David E. Feller: That arbitrability should be for the arbitrators.

We recognize as I think every informed writer recognizes that the Court is not an automaton or robot to order arbitration simply because you went in and say there's an agreement that an arbitration clause ordered direct the employer to arbitrate.

The Court has to determine whether there is a breach of a promise.

We are here essentially on a contract theory.

But we say it fulfills that duty of adjudication when it finds a -- and as in this case that there is a provision requiring arbitration of every question, every judgments arising under the contract involving the interpretation and application of the contract and that -- that the employer has refused to do it.

It is none of the Court's business to determine whether the union has a good case, a bad case, a case that looks like it might be doubtful or a case which seems to report absolutely clear.

As we say in our brief, this scope of the court's duty seems to us so clear that the marvel is that there's any argument about it.

But strangely enough, there has been a tremendous amount of argument.

Justice John M. Harlan: New York --

Mr. David E. Feller: Federal courts are in the business --

Justice Felix Frankfurter: New York courts have taken it.

Mr. David E. Feller: That's right.

The federal courts are in this business only recently.

New York courts had been in it for some years pursuant to the statute.

And in New York, there has developed what is called the Cutler-Hammer doctrine after the case Cutler-Hammer Company versus the Machinists.

Cutler-Hammer doctrine says that if the answer in a given case is so clear but there isn't any doubt about the result.

If a grievance is so clear --

Justice Felix Frankfurter: The answer by -- as we look at the problem.

Mr. David E. Feller: Yes.

Then there's no question to arbitrate.

That's what they said.

And -- that actually, that some doubt with the New York courts still today in practice follow the Cutler-Hammer doctrine but this is essentially without naming the Cutler-Hammer case.

Essentially, the court below and the Sixth Circuit here adopted the Cutler-Hammer approach.

They said, “This is such a frivolous grievance that we aren't going to order anybody to arbitrate.”

Now, with difficulty of course with that doctrine and that limitation on the agreement is first, that on the very appeal, the verbal level, the contract doesn't say all doubtful questions shall be arbitrated.

All questions which may appear to a court that involve some questions of doubt maybe arbitrated, it says all questions.

Now, I think that the Cutler-Hammer doctrine is bad law even if these were not a labor agreement.

But I want to emphasize the importance of the fact that this is a labor agreement and a collective bargaining agreement and the very different consequences which follow from the adoption of Cutler-Hammer or similar doctrine as the Second Circuit has -- in this very (Inaudible) scope case indicated that you have to make -- make a prima facie showing that there is some issue involved.

Justice Charles E. Whittaker: Why is that the rule be different in one of type of case over another if the parties have agreed that jurisdiction shall vest in a private court over a certain type of controversy, you must give effect to the contract, isn't that the end of it?

Mr. David E. Feller: Well, I think it's the end of it but I think that the consequences of different results are different because in a typical non-labor contract, a commercial contract, what the parties do as Your Honor said, is provide a private court in place of the public courts.

Justice Charles E. Whittaker: That's what arbitrators are.

Mr. David E. Feller: That's right.

But this is not true in a labor contract.

In fact, the alternative to arbitration historically.

There's no question that parties in a labor agreement do not agree to arbitrate rather than litigate.

What they agreed to do is arbitrate rather than strike.

The real alternative which is bargained for and I think this Court expressly stated it in the Lincoln Mills case.

The agreement to arbitrate is the quid pro quo for the agreement not to strike.

In the absence of a no-strike clause and an agreement to arbitrate which go hand in hand and usually verbal, a union has the right protected under Section 7 on the National Labor Relations Act to strike an employer if it believes that the employer is not complying with this agreement.

Historically, unions have never looked to the law force to adjudicate their disputes.

I'd like to quote -- I think the Privy Council and a very famous case really stated what a labor agreement is, absent the agreement to arbitration where they described in Young versus Canadian Northern Railway, 31 -- 1931 appealed cases at page 83 quoting from page 89, in talking about a collective bargaining agreement.

It says that “it appears to their lordships to be intended merely to operate as an agreement between a body of employers and a labor organization by which the employers undertake that as regard to their workman, certain rules beneficial to the workman shall be observed.”

If an employer refused to observe the rules, the effective sequel would not -- would be not an action by any employee, not even an action by Division number four which is the organization against the employer, but the calling of the strike until the grievance was rendered.

Justice Felix Frankfurter: Mr. Feller, may I suggest that I think it would help some of us if you would put an arbitration provision and a collective agreement in the context in which an arbitration agreement is found in a collective labor agreement as against the arbitration provision in a commercial contract, namely that the arbitration provision in the collective agreement is part of a detailed government for industry which the commercial of the arbitration provisions are not.

Mr. David E. Feller: Thank you, Your Honor.

I -- I've been -- I -- I --

Justice Felix Frankfurter: But you --

Mr. David E. Feller: That's what I'm attempting to do.

Justice Felix Frankfurter: But the arbitration agreement is the -- is the apex of a layer of --

Mr. David E. Feller: Grievance procedure, that's right.

Justice Felix Frankfurter: Of grievance procedures for governing industry --

Mr. David E. Feller: Well, that's correct, Your Honor.

Justice Felix Frankfurter: Particular and sometimes a vast industry like the steel industry or vast plants like the fourth plant as against the episodic provision which comes into play the commercial arbitration.

Mr. David E. Feller: That is correct.

In which the arbitrator typically is awarding damages on a claim that one party or the other has not delivered goods, has not complied with its construction contract and the question is resolving the rights of the parties in wrapping the transaction up.

Rather than going to a court, the party say, “It's faster.

It's less complicated.

It's less expensive.

We get smarter people.

Let's arbitrate rather than litigate.”

In the collective bargaining agreement, you have, as Mr. Justice Frankfurter has just said, a set of rules to govern an industrial relationship which involve thousands and thousands of questions which must be resolved in reference to a tiny little contract even in basic steel which we have a more complicated contract than most of the very little contracts and it's (Voice Overlap) all these cases.

Justice Charles E. Whittaker: You said it's a very what contract?

You said is a very what contract?

Mr. David E. Feller: Small contract which in effect --

Justice Felix Frankfurter: All stages of the --

Mr. David E. Feller: (Voice Overlap) of the basic codes for the carrying on of the industrial relationship between the employer and the employee and which the parties provide for their own tribunal to interpret, apply, and explicate the very small number of words which of necessity must govern a very large and very kind of continuing relationship.

Justice Felix Frankfurter: Could you produce within the -- the time recess is over, a copy of this – of the last Steel contract?

Mr. David E. Feller: Yes, sir.

Justice Felix Frankfurter: Or before this case is finished.

Mr. David E. Feller: Yes, sir.

I would --

Justice Felix Frankfurter: That gives you tomorrow to --

Mr. David E. Feller: -- I will produce it -- no, I can produce it by 2:30.

As a matter of fact, I can produce it right now.

Justice Felix Frankfurter: Alright.

You can give it to the clerk so that --

Mr. David E. Feller: This is the copy of the agreement between the United States and --

Justice Felix Frankfurter: How many pages in the pamphlet you hold in your hand?

Mr. David E. Feller: Well, this – this agreement is -- when I say this in a large one, it depends on how this runs, 102 pages.

This governs the relationships between parties.

Well, this governs 100,000 employees on every aspect to the relationship of rights to jobs, rights to pay, overtime, scheduling, seniority, everything.

Justice Felix Frankfurter: As I remember the fourth context, isn't any smaller?

Not much as --

Mr. David E. Feller: It's a little bigger.

Justice Felix Frankfurter: Yes.

Mr. David E. Feller: That's a little bigger.

The contract in this case is – is a minimal number of pages if Your Honor will note.

As they have --

Justice Felix Frankfurter: Is that a credit for the draftsman?

Mr. David E. Feller: No.

I think, it's a -- as your unit gets larger and more problems become acute, you deal more explicitly with problems than you do in a contract covering a smaller unit where much exists as a result of common understanding without specification.

The larger the unit, the larger the necessity comes to be a little more specific because the common understanding is not so common when plants are spread across the country and cover up great -- great variety of operations.

That's the reason as you get bigger, you tend to have a more complicated contract.

Actually, curiously enough, the seniority question which is involved here.

The rights of an employee on reinstatement after absent for illness is not dealt within this contract either, specifically.

Justice Charles E. Whittaker: Would you regard this as a seniority question?

Mr. David E. Feller: Well, the question is, is it a seniority question or is it a discharge question?

That's a very difficult question.

I think it's a combination.

I hate to attempt to turn this Court right after Justice Harlan has adjured me not to into the Board of Arbitration under this grievance.

Well, I think the question in this grievance is whether this man on the finding of the facts, could be said to have such a disability that he was subject to discharge.

Absent that, he is entitled to whatever job in the unit his seniority entitles him to, under whatever the rules are which are not spelled out in this contract as to relative seniority whether it's plant-wide, department-wide, unit-wide, I don't know what it is because the contract doesn't say.

This is again the matter of practice which arbitrators as the adjudicators of the controversies like this are peculiarly able to resolve.

But I want to finish what I attempted to say with you, Mr. Justice Whittaker, the effect of an arbitration provision.

And many of the decisions have failed to notice, the importance is, in a holding that a dispute is not arbitrated, or that the Court should decide whether there is doubt in the grievance is that you are not simply not giving enough grievance to the agreement to arbitrate and putting it back where it would have been in the first place, which is the case in the commercial contract.

In the absence of arbitration, the Court would decide it.

So perhaps our ideas of giving respect to the party's wishes are offended if we say despite the agreement to arbitrate, we'll let the Court look into it.

But when you do it with the labor agreement, you do something far different.

What you say, this is not arbitrable and if you have a no-strike clause of the kind that's involved in all these three cases, which says you can't strike.

You're saying you can't arbitrate and you can't have what you would have had if you didn't have the no-strike arbitration clause.

What you're saying is that the employer's action is completely ungoverned.

You are not saying that the matter --

Justice William J. Brennan: What was that word you spoke of?

Mr. David E. Feller: Ungoverned or under, the union has rendered this because the alternative is not the same, well, then go sue on the contract or have the matter decided.

I thought --

Justice Charles E. Whittaker: I do not understand you mean by that or do you mean by that that either the union or the employer are bound to submit two arbitrators things they did not agreed to submit.

Mr. David E. Feller: Well, I am arguing in the context of what I have called the standard arbitration clause and I'm not arguing that -- that they have -- have to submit to arbitration that which they did not agree to arbitrate.

Well, I am arguing and this argument will become critical in the next case, is that when they agree to arbitrate all questions of interpretation and applications and they also agree on an absolute no-strike clause barring the relief which the union would have otherwise in the absence of the no-strike arbitration clause.

That in that case, the Court should construe the questions of interpretational application which the parties commit to the arbitrator precisely as they say it.

As a matter of fact, if there are any doubts, you should give the broadest possible scope to the arbitration provision because the consequence of the Court saying that the dispute is not arbitrated, is not as it is in the commercial contract that is litigable.

The consequence is that you are saying that this controversy is one which the employer wins because the union has given up the right to strike.

Now, it's possible to come with different result.

If you want to be whether on -- follow Cutler-Hammer, you would say this, “Now, use two hypothetical cases.”

Supposing -- well, let's say the contract provides, a man doesn't come to work a long time or if a man comes to work when he's required to report and there's no work for him, he is entitled to four hours reporting pay, common provision.

Suppose a man reports under those circumstances, he is given to four hours pay and files a grievance saying, “Well, I think, that really means I'm entitled to six and they'll making as absurd the grievance as I can, frivolous if you want to, baseless.”

The union says, “We want to arbitrate that grievance,” and the Court says, “Well, this is preposterous, four means four not six.”

The Cutler-Hammer doctrine, say in those cases, you don't arbitrate.

The employer is clearly right.

The grievance is bad, there's no doubtful question.

But what would happen given the same clause, the same kind of question, the employer paid them two hours pay and said four means two.

What can the union do?

Well obviously, you can file a grievance but the question isn't arbitrable?

This is what grievance -- it clearly ought to be granted.

Now, there are a lot of union people who will say, “We don't arbitrate that kind of grievance.

We shut it down.”

I have always advised them that you have a grievance in arbitration provision and that says every question of interpretation and application if it's in good faith and not just a way of avoiding these people.

If it's in good faith, no matter how clear it maybe to you, if the grievance is a good grievance, goes to the grievance of arbitration procedure.

What if you want to follow Cutler-Hammer and says -- then you have to do it both sides.

Only doubtful questions to go to arbitration, all the questions which are not doubtful can be resolved apart from the arbitration procedure, i.e. if the grievance is clearly bad.

You don't arbitrate it if the grievance is clearly good, the union can strike and you can resolve that question when this employer sues the union for damages.

And actually there have been such cases, not in the Cutler-Hammer context where the courts never seemed to follow Cutler-Hammer there but there have been cases were employers have sued unions for breach of a contract agreement not to strike.

The union's defense has been “We are striking about something that wasn't arbitrable.”

Because not all those strike arbitration provisions are all inclusive.

Parties can agree, such a question is not arbitrable.

The other workers who do that.

The fourth contract in General Motors, the critical question as to the speed of the line, how fast do you have to work?

One of the critical question, the parties don't trust themselves to contract about and don't trust arbitrators to decide.

And they say, “This is not arbitrable.”

There shall no be grievance about it.

Justice Felix Frankfurter: Your would also --

Mr. David E. Feller: But you can strike.

Justice Felix Frankfurter: You would also to add that many strikers taking place or cause it to an outsider for subsequent mediator seems trivial.

Mr. David E. Feller: Well, many of the strikers taking place to -- to things who -- people in the same union sometimes regarded as trivial.

But deciding from a judicial bench or even from a lawyer's offices to whether a grievance is a substantial grievance which will cause a strike and something which is very hard to do in the realities of industrial relations.

So, I conclude then, a very simple that where an agreement contains a broad no-strike clause and a broad arbitration provision, that's saying that all questions of interpretation and application agreement should be submitted to arbitrators.

This contract does.

Then all that the Court should do determining whether to order arbitration is to find, one, whether the union makes a claim that the employer has violated the agreement.

Doesn't have to look to see whether it's a good claim or a bad claim because if the union has made such a claim and the employer denies that he has violated the agreement, then there is a question of the interpretation and application of that agreement.

Justice Charles E. Whittaker: Now, when you it makes a claim that he has violated the agreement, I understand that he -- he would make the same claim that is within the terms that the parities have agreed shall be arbitrated.

Mr. David E. Feller: Well --

Justice Charles E. Whittaker: Is that right?

Mr. David E. Feller: In my -- my case I said they have agreed that all questions as to interpretation and application shall be subject to arbitration.

Justice Charles E. Whittaker: Well then, it has to be with respect to interpretation or application.

Mr. David E. Feller: Yes.But the -- that is correct.

Now, application although I'm making the further statement that wherever the union says, view in employer in dealing with this employee, you did not comport with the agree -- the provisions of the agreement.

You did not fulfill your obligation to that employer.

That's how grievances arise.

Madison always acts.

They promote fire pay discharge and the union grievance, that's the way the system of industrial government operates.

Now, when the union says grievance and says, “You have not complied with your obligations under the contract.”

If the employer refuses to arbitrate, the Court should direct the arbitration because that case necessarily presents a question of interpretation and application of the contract.

Now, you can have grievances that aren't that and you do have them all the time.

You file the grievance saying, “We're working too hard.

We need a rest period.”

Well, that's a common kind of grievance.

Now, it can have two kinds of grievances, can follow that.

One, you may have a safety and health provision of the contract and you're saying therefore, the company has violated the safety and health provision.

It's unhealthy.

It's unsafe.

That would be a question of interpretation and application agreement.

But usually, you don't have that kind of provision.

And what you're simply saying is, “It's unfair.

It's unjust.

The company ought to give us rest periods or onto us, we had an issue on the last Steel negotiations one of the issues which occupy a great deal of time, the United States Steel negotiation with the questionable toilets at the Ellwood City plant.

They were dirty, they didn't flush properly and it took too far to get to them.

It's the kind of thing that people discuss in collective bargaining and in which grievances are filed about which do not involve any claim that the employer had an obligation, implicit or express in the agreement which he did not comply.

When you make that kind of a claim, then in the usual kind of clause, it is not an arbitrable question.

Normally, the -- the union doesn't answer to the arbitrator because there's nothing for the arbitrator to decide.

You don't go to an arbitrator in grievance arbitration and say, “We think it's fair that you do this.”

Unless there are some clause which gives the arbitrator discretion to decide what's there which is obviously in the case of this charge.

No agreement that I know of list specifically all the causes for discharge.

Justice Felix Frankfurter: As I remember one of the most contentious controversies before (Inaudible) the young woman should be allowed to wear seductive blouses.

This is a very (Inaudible) problem, very (Inaudible) problem.

In fact, I saw the other day the same question has come up in connection with the English women.

Mr. David E. Feller: I saw the picture in the paper, but the -- they just cause the -- any place where the arbitrator has discretion.

And under that contract, I'd like to know how he showed -- but what I am saying to you Mr. Justice Whittaker, and in conclusion, that if the union says that the company has an obligation to do something or it has violated its obligations by doing something under the contract, the employer denies it, there is an issue as to the interpretation and application of the agreement and the issue is arbitrable.

And that's all.

Thank you.

Chief Justice Earl Warren: Mr. Carriger.

Argument of John S. Carriger

Mr. John S. Carriger: Mr. Chief Justice and the members of the Court.

This in a way might be said to the -- in the particular case than the general case that my adversary, as on to playfulness present here because this comes under the statute, labor management relations generally known as Section 301 (a) of the Labor Management Relations Act.

And yet pursuant to that statute which provides that suits for violation of contracts between an employer and the labor organization maybe brought in the District Court.

A suit was brought alleging and this I emphasize because in the decision as it was filed in the Court of Appeals, Judge Miller in his concluding paragraph there made it quite positive in his statement that this is an alleged grievance rather than a real grievance, that this is so clearly a baseless one that, although he arrived and that court unanimously arrived at a different course but arrived at the same result has tried in this -- in the District Court -- arrived at the District Court.

That this was not a case where the complainant, the plaintiff, the union had shown that there were issues to be presented.

Now, why is it a case that is a particular one?

The union in this case, the original plaintiff in the District Court moved for summary judgment and we submit, may it please this Court that the Rules of Civil Procedure that are applicable to summary judgment procedures are no different in a case involving the Labor Management Relations Act or a labor management contract or agreement then it would be in any other matter before the Court.

Now, the petitioner in asking for summary judgment did so fully aware of the rules and the requirements.

The petitioner, the union, chose not to bring into that case any proof, any affidavit or anything showing in the pleadings or any statement from this man, Sparks on whose behalf this suit was filed that he was entitled to this relief.

Now, I say that -- may it please the Court, in this -- for this reason that it is necessary, I believe, for us to go a little bit into the facts of the case as it was before that Court and of course as it was been before the Court of Appeals to show that there was not a real grievance here.

There was no issue for the Court to decide in the position that the union took both there and in Court of Appeals.

Now, if the federal court -- if Congress in under 301 had any purpose other than that the Court should initially determine whether there was some issue to submit, why was this Section 301 at the Labor Management Relation Act?

Why was it there?

Why couldn't the Congress simply have said, “Every matter, no matter how foolish, no matter how clearly baseless, no matter what the plaintiff comes in and does not show, once it's a labor management discussion, once it's in -- an alleged grievance, the Court can only go on and say where the arbitrators will have test on it.”

Justice Felix Frankfurter: What in your view are the limiting words of the statute which determine this -- this problem as you see it?

What are the limiting words?

Mr. John S. Carriger: That suits for violation of contracts maybe brought in any District Court.

Then if the Court please, the Court having taken jurisdiction, the union--

Justice Felix Frankfurter: Those are the words that -- that's all there is, is there?

Mr. John S. Carriger: Well, I have not read this whole Sections 301.

Justice Felix Frankfurter: No, no, no.

But that's all that's relevant that you deem relevant.

Mr. John S. Carriger: But, I link that, if the Court please, with the provisions in the requirements of the summary judgment rules which I'd like to quote just very briefly to the Court in Section 56 subsection (c), the motion and procedure thereon.

“The judgment sought shall be rendered forthwith if the pleadings, depositions and admissions on file together with affidavits of any, show that there is no genuine issue as to any material fact.”

Now, there was the motion for summary judgment, a cross motion for summary judgment.

In other words, both parties moved for summary judgment.

The defendant, American Manufacturing Company and it is a small plant, its contract here, I think some 12 or 13 pages showed that it had no way of employing a disabled man.

It showed that this man, Spark, one week before the union filed this alleged grievance in his behalf had been determined to be 25% percent totally disabled body of the whole.

Now, Mr. Feller says that there was no adjudication to that effect.

This was an adjudication under the Tennessee law.

Certainly, it was -- it could be computed and I want to go further into one part of the record that but it was although the courts in that decree doesn't say 25% percent, the amount that the Board and the whole decision of the Court, and in Tennessee we do have that in Court decision on workmen's compensation matters, was base on a 25% percent permanent total disability.

But in addition to that --

Justice John M. Harlan: Well, in this --

Mr. John S. Carriger: -- fact that it could be determined --

Justice John M. Harlan: -- would be the settlement though, wasn't it?

Mr. John S. Carriger: It was the settlement but approved by the Court on basis of the 25% disability.

Justice John M. Harlan: Proved to the settlement?

Mr. John S. Carriger: Yes.

In other words, the petition -- it was the Court -- it was a litigated matter.

A petition was filed.

We did not appear in that case.

There were other counsel, Mr. Neil Thomas of our bar represented the defendant in that case --

Chief Justice Earl Warren: What percentage of disability did the company contend for?

Mr. John S. Carriger: In -- it was an agreed -- more or less, an agreed finding, if the Court please.

Mr. -- adversary counsel has indicated that the -- the further examination called for was by the company doctor.

It was by the agreed doctor, Doctor Shelton who was the one who had examined this man before, before the hearing.

And in connection with the matter of this Workmen's Compensation claim.

Chief Justice Earl Warren: But when you have this -- this agreed judgment, did -- did you both come in and say “Well, a man is -- is 25% percent disabled,” or did -- did they say 25 and that -- do you say something else and you finally agreed to at 25?

Mr. John S. Carriger: The record in the decree indicates that the man claimed more and the company possibly claim some less but it was six --

Chief Justice Earl Warren: How much less -- how much less did they claim?

Mr. John S. Carriger: There was never -- so far as I know, if the Court please, there was never anything under 25%.

When I say less, I mean less than the petitioner claim but it was agreed on 25% percent.

Now if the Court please, that -- that that settlement was on that basis it shown, may it please the Court, by the affidavit in summary judgment procedure, the affidavit which was filed by Mr. Neil Thomas as a part of that record in the trial court in which he showed that it was an award on the basis of 25% percent permanent disability.

Now, that was the status, that matter is on September the 9th, 1957.

September the 16th, one week later, the union filed on behalf of Mr. Sparks a grievance procedure.

Now, if the Court please, I suggest that it in deference to Mr. Feller, that this is a grievance here not on this charge but as it was shown in -- in the plaintiff original procedure and in all the records here as a grievance alleging a violation of the summary judgment procedure -- I'm -- I'm sorry, a violation of the grievance, a violation of the -- of the seniority clause of the contract.

Now, that contract between the parties, the labor management agreement provided in Section 2 that the management retained the right to discharge and to discharge for any reason handled to reduce or impair the efficiency of plant operations.

When this man proved and claimed and accepted a settlement of some $3000 for a 25% percent permanent and total disability, permanent part (Voice Overlap) --

Chief Justice Earl Warren: How much was the claim?

How much was the award?

Mr. John S. Carriger: Approximately 3000 plus certain medical expenses and doctors hospital bills which were paid in full.

When he claimed that and then sought to be restored or reinstated in his job, he was turned down.

Now, in one place in the grievance they speak out as he's being released.

However, it's described that was in effect a discharge of that man.

Under this contract, he had three days if he felt that that was an improper procedure, he had three days within which to file a written protest -- three working days and he chose not to do it.

He knew that Dr. Shelton and Dr. Kinsey (ph), Dr. Kinsey just a week before -- no -- no in August, August 24th having said and it's in the record here, made a statement that this man has a 25% permanent disability of the body as a whole.

And in my opinion, he will never be any better than that, that will not improve.”

Now, that was in August, August 24th.

He comes into Court, Sparks does, on September the 9th and again claims and accepts a 25% disability award.

Mr. Neil Thomas in his affidavit in this record, the attorney who represented the defending insurance company, the workmen's compensation carrier said in his affidavit -- and this was overlooked in the Court of Appeals and then overlooked in our showing before that Court that this was a settlement based on that 25% disability.

Now, that 25% was established.

It could be also established by reference to the award and the amount of award and the allowance under the Tennessee law.

But be that as it may, here is a man then who a week later says that he is able to do the same job, manual labor in a plant where there are open vats that acid and of chemicals, a job there, it has been shown that there was no place -- the plant where there was no place for a man who is partly disabled and a plant where they had no job for a disabled man.

Now, both in the management division and in the grievance (Voice Overlap) --

Chief Justice Earl Warren: Were there any reason why an arbitrator couldn't determine that as you see -- as you could tell us about it.

Mr. John S. Carriger: If the Court please --

Chief Justice Earl Warren: If that in effect showed that clear?

Mr. John S. Carriger: I think it was down to this, may it please the Court.

Does a district court have to channel every case coming before it to arbitration or does the District Court have the right and wasn't at the thought of Congress that it had the obligation to read out those where both at the time of the parties and the time of individuals should not -- and the arbitrators should no be taken.

Chief Justice Earl Warren: We'll have recess now.

Print this transcript Transcript: 

Argument of John S. Carriger

Chief Justice Earl Warren: Mr. Carriger, you may continue.

Mr. John S. Carriger: Mr. Chief Justice and Members of the Court.

Mr. Chief Justice was asking at the noon recess, as to why this matter would not be determined by the arbitrators rather than being submitted through the court procedure.

And we believe that under Section 301 of the Labor Management Act, that -- and Congress had in mind that the courts, they're not the arbitrators based on contracts.

And that the courts determined the arbitrability.

Now, I don't have the say in his reply brief has --

Chief Justice Earl Warren: But the arbitrability isn't in question in these cases, it -- it's a -- I thought it was -- isn't it conceded in this case that -- that, if there were substance to this particular claim, that it would be arbitrable, because it does affect conditions, isn't so --

Mr. John S. Carriger: Yes.

Chief Justice Earl Warren: -- working conditions (Voice Overlap) --

Mr. John S. Carriger: For the determining whether or not arbitration is to be ordered by the court.

Chief Justice Earl Warren: Yes.

But the Court just held that it was frivolous and therefore -- therefore, it shouldn't go before an arbitrator.

Mr. John S. Carriger: That was -- I like the work baseless, that although in phrase, they've copied --

Chief Justice Earl Warren: Well --

Mr. John S. Carriger: -- the Court has used these -- the combination of terms that has been used in other courts and decisions.

But here what both Judge Darr, the district judge, and the Court of Appeals held in substance was that there was no evidence on which the arbitrators -- in other words, it was nothing for the arbitrators to arbitrate.

That it was so baseless and so clearly so.

And that in this case, where the burden was on the complainant to show some basis, some grounds for arbitration and where the complainant had failed to do so, although calling for the court to use the summary judgment procedure.

And yet then, simply bringing in a statement from a doctor, Dr. Kinsey, this man was able to go back to a job without injury to himself or others.

Now, as the Court of Appeals said, “That is not evidence, when you have in the record there on the summary judgment procedure.”

The statements of that same doctor may just, a week or -- or two weeks before, that this man is permanently disabled.

I'd like to read to the Court, very briefly, that statement from Dr. Kinsey, which appears in the record at page 54 and 55.

And this was is August of 1957.

“I believe his disability was 55% or 60% before surgery.

They -- the back operation moved a disc.

And I believe, it is approximately 25% of the present time.

I also believe that his partial permanent disability will remain at about 25%.

And it was on 25% that on September 9th, he received this and claimed this award for disability.”

Then a week later, he comes back and applies under the provision for reinstatement as employee and is turned down.

He does not avail himself.

He knows that he could not get back in on any protest.

They -- does not avail himself for the three day requirement, of filing a written protest.

He accepts that discharge.

Then trying to do indirectly, it please the Court, what he could not do directly, we submit, he -- through the union, undertakes to be reemployed under the seniorioy provisions.

Now, both under the seniority provision and under this matter which management in this plant had and the union agreed to it, sold a necessity for them.

This type of operations, a small plant with wax and the various types of chemicals and liquids about a department where a man had to be men and had do to the work and had to be able and efficient.

In both of those requirements, the contract provided and recognized that ability to do the work, able-bodiedness and equal efficiency must be considered.

Now, the provision in the seniority definitely -- and provision of the contract definitely recognizes that the man seeking to be reemployed and that's what this was and that's the word, reemployment in that seniority provision contract, that he must have efficiency and ability equal to others.

Now, we submit, if the Court please, that it was definitely shown before the trial court and never has any claim been made by this man, nothing in the complaint.

The complainant, the plaintiff, and the court below knew this contention.

They agreed that Dr. Shelton might examine him after this matter of grievance had been claimed and they've attempted an arbitration arrangement.

They agree that he might go back to Dr. Shelton.

And if the Court please, what does Dr. Shelton say in his report there?

On November 14th, Dr. Shelton -- of 1957, Dr. Shelton had been ill in the meantime.

There was delay of getting his examination, “I see no reason to change my opinion as stated on the examination of August the 28th, 1957.”

And then skipping down, “At that time, I estimated his permanent partial disability to be 25%, for the body as a whole, for his particular type of work, I see no change in the physical findings, so I no see reason to change my opinion as expressed on that examination.

It is my opinion that he should not be placed at work requiring heavy lifting or prolonged stooping or bending”.

And the whole evidence and his -- the whole evidence before the Court in the preceding, was that in this department, where he sought to be reemployed.

A man could not do the work without getting into awkward positions and stoop and bend.

And Dr. Kinsey on whom he relied in obtaining the disability award and who later examined him and found that he -- in his opinion, although he had been 50 or more percent disabled before the operation.

In he's opinion, this man was never to be more than 25% and that is never for more than 75% able and efficient as compared with the ordinary able-bodied man.

This department needed, this plant did have a place for disabled men.

And that was shown in the record by the plant manager.

We submit, if the Court please, that on all of that record, the Court could only say, if this man's claim under these circumstances, was baseless.

That he did not have something that the time with the arbitrators, the time the parties should be determined by arbitration.

Chief Justice Earl Warren: Well, wouldn't the question as to whether there was any work that he was fitted for, be a question for the arbitrator?

Mr. John S. Carriger: The Court please, and I'm somewhat at lost to know how we can -- can meet the requirements of the summary judgment provisions rules.

The -- the plaintiff -- the complainant, nowhere claimed that he was able to do the work.As to these defenses were made and his affidavits went in -- in compliance for the summary judgment procedure, he did not attempt to amend his complaint.

He did not come in by any affidavit that he was.

And although the attorney who had represented the insurance carrier on workman's compensation matter, wrote to him and to his attorneys and said, “If there's been a change, we need to know about it”.

Why was it that you -- that you claimed and obtained there an award on a basis to 25% and now, claimed that you're able to do the work in that department, that you're not disabled?

He did not answer it, his attorneys did not answer it.

And that, again, is shown in the record.

Now, if the Court please, we submit that under the provisions that the union, the complainant sought to the -- invoked when the asked for a summary judgment and then the defendant asked for summary judgment.

That that placed before the trial court, the obligation to treat it on the record as it was.

And had this man conscientiously believed that he could do the work, that he was not disabled, that he was of equal efficiency and ability to the other men and hold on to do that type of work, he could've amended his complaint.

He never in his complaint said he was able.

He never came in himself and said he was able.

He never brought in Dr. Kinsey to show why Dr. Kinsey a few -- a short time before he had said he was permanently disabled and why, if he could, and he couldn't.

It stands for reason that they could've produced that evidence, that they would have done so.

Then, if Court please, we submit that under the -- in decisions and under Professor Cox's statement.

And there our adversary has mentioned Professor Cox in a number of places in that brief and -- and actually this brief is found was against or in connection with three cases.

I'm only familiar with this one.

I can only speak in connection with this one case.

But as we have shown in our brief and reply quoting also from Professor Cox, who has been relied on extensively by our adversary, in the same article in 1959 in the Harvard Law Review, reflections on labor arbitration.

“Arbitration should be ordered in an action under Section 301.

Whenever that claim might be fairly be said to fall within the scope of the collective bargaining agreement.

If the latter contention be made, but appears patiently frivolous, arbitration should be denied.”

Now, our adversary in the reply brief filed, Mr. Feller says, that he agrees that arbitration of these matters should be only at the order of the court.

That the court determines arbitrability.

He says we have not indicated how arbitrability would be determined by the court.

Now, we submit if Court please, that determination of arbitrability and this is the word -- wording in Judge (Inaudible) in the (Inaudible) case cited in our brief, 251 F.2nd.

Determination of arbitrability only requires that the moving party could evidence which tends to establish his claim.

We submit that -- if the Court please, that in this case, the complainant, the moving party did not establish any evidence.

Did not introduce any evidence, either in his pleadings, did not even make the claim in the complaint.

But simply said, here is something it must be arbitrated and as the court passes on for arbitration.

Now, we submit, if the Court please, that question here is we believe, boiled down to this.

Is the District Court powerless to hold an alleged grievance, not arbitrable, where the complaining union moves for a summary judgment, but fails to make any showing of a real arbitrable issue.

And we feel that the Court does have the right and that the trial court and the Court of Appeals, both, although they reached the conclusion by different channels.

Both found that in this case, the plaintiff had not carried out that minimum requirement.

I'm showing that there were some basis, some grounds on which arbitration -- for which arbitration should be awarded.

Chief Justice Earl Warren: Thank you.

Mr. Feller.

Argument of David E. Feller

Mr. David E. Feller: I think I can just to add one word.

I think the issue is now been posed very clearly by Mr. Carriger.

The issue is whether the plaintiffs who comes in and ask that the court enforce the agreement to arbitrator, has to introduce evidence in the court dealing not with the promise to arbitrate, but with the substantive provision which he wants determined in arbitration.

Has to make a kind of prima facie case, as it were which in (Inaudible) the Second Circuit did indicate citing some admiralty arbitrations.

The case whose name always remembers (Inaudible) because his name, that's citing a whole bunch of commercial arbitration precedents saying you have to go in and show some evidence of your claim on the merits.

And we think plainly that that's wrong, let's cut their hammer.

We think that's wrong.

The Court is enforcing the agreement to arbitrate not the seniority provision, not the discharge provisions.

We have to bring in and show that there is an agreement to arbitrate and that the agreement hasn't been complied with, that we did show and that's all I think we are required to show.

Thank (Voice Overlap) --

Chief Justice Earl Warren: Thank you.