Communications Workers of America, Appellant, v. Southwestern Bell Telephone Company, Appellee, 415 F.2d 35 (5th Cir. 1969)

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US Court of Appeals for the Fifth Circuit - 415 F.2d 35 (5th Cir. 1969) July 15, 1969
 1

"(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties."

 2

This agreement comprises two contracts: (1) The 1960 Traffic Agreement, applying only to traffic unit employees; and (2) the 1960 Agreement of General Application, applying to members of the accounting, commercial plant, and traffic units. Except in the footnotes, no attempt will be made to differentiate between these two contracts

 3

Section 4(1) (b) of the Plan in relevant part provides:

"Any employee whose term of employment has been thirty years or more, or any * * * female employee who has reached the age of fifty years and whose term of employment has been twenty-five or more years may, if the case is approved by the Committee as appropriate for such treatment, be retired from active service and, upon such retirement, shall be granted a service pension."

The Plan was unilaterally promulgated by Southwestern Bell in 1913, more than 24 years before unionization of the Company's employees, and is administered by a committee of five persons appointed by the Company's Board of Directors.

 4

1960 Traffic Agreement, Art. XIX. Seniority

"Seniority shall be taken into account in the treatment of employees covered by this Agreement insofar as the conditions of the business and the abilities of the employees permit."

 5

1960 Traffic Agreement, Art. XX(b):

"Any employee complaint (except those which contemplate treatment or proceedings inconsistent with the terms of a collective bargaining contract or agreement then in effect including proposals for the modification of, or addition to, any such contract or agreement) which is reduced to writing and delivered by a Union representative in accordance with (c) of this Article within 60 days of the action complained of shall be considered and handled as a formal grievance under (c) hereof."

 6

Agreement of General Application, Art. V, § 1:

"If, during the term of this Agreement * * * a difference shall occur, between the Union and the Management, and continue after all steps in the `Formal Grievance' procedure * * * shall have been undertaken and completed, regarding,

(a) the true intent and meaning of any specific provision or provisions thereof (except as such provision or provisions relate, either specifically or by effect, to prospective modifications or amendments of such agreements), or

(b) the application of any provision or provisions to any employee or group of employees, and grievances arising from such application, or

(c) the dismissal of any employee with more than three completed years' net credited service then in any such event, either the Union or the Management may submit the issue of any such matter to arbitration for final decision in accordance with the procedure hereinafter set forth."

 7

Southwestern Bell relied upon Article VII of the 1960 Agreement of General Application to support its contention, that in disputes involving the Plan, only those dealing with the question of bad faith or discrimination in the reduction of benefits were subject to the grievance-arbitration procedure. Article VII provides:

PENSIONS, DISABILITY BENEFITS, AND DEATH BENEFITS

"During the term of this Agreement, no change may be made without the consent of the Union in the existing `Plan for Employees' Pensions, Disability Benefits, and Death Benefits' which would reduce or diminish the benefits or privileges provided thereunder. Any claim that such benefits or privileges have been so diminished or reduced may be presented as a grievance and if not resolved by the parties under their grievance machinery may be submitted to arbitration pursuant to the provisions of Article V hereof but in any such case any decision or action of the Company shall be controlling unless shown to have been discriminatory or in bad faith and only the question of bad faith or discrimination shall be subject to the grievance procedure or arbitration."

(Emphasis added)

 8

See note 5,supra.

 9

See note 7,supra.

 10

The Second, Third, and Fourth Circuits have held evidence of bargaining history inadmissible,see International Union of Electrical Radio and Machine Workers, AFL-CIO v. General Electric Company, 332 F.2d 485 (2d Cir. 1964); Association of Westinghouse Salaried Employees v. Westinghouse Electric Corporation, 283 F.2d 93 (3rd Cir. 1960); A. S. Abell Company v. Baltimore Typographical Union No. 12, 338 F.2d 190 (4th Cir. 1964), while the Seventh Circuit has taken a contrary view. Independent Petroleum Workers of America v. American Oil Company, 324 F.2d 903 (7th Cir. 1963). The Ninth Circuit has also entertained this evidence, but only where the court's determination would not involve the merits of the underlying dispute. See Pacific Northwest Bell Telephone Company v. Communications Workers of America, 310 F.2d 244 (9th Cir. 1962). Similarly, the Second Circuit has carved out an exception to the general exclusionary rule, and has admitted evidence of bargaining history where neither of two proffered interpretations of the exclusionary clause is "patently impossible or unreasonable." Strauss v. Silvercup Bakers, Inc., 353 F.2d 555 (2d Cir. 1965).

 11

In no case, however, will the courts examine bargaining history where judicial construction of the arbitration clause in question would involve the resolution of the underlying dispute. This is an inquiry solely for the arbitrator. Pacific Northwest Bell Telephone Company v. Communications Workers of America,supra. See also United Steelworkers of America v. Warrior and Gulf Navigation Company, supra. (Especially Brennan, J. concurring, 363 U.S. at 572, 80 S. Ct. 1347; A. S. Abell Company v. Baltimore Typographical Union No. 12, supra 338 F.2d at 194.