USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1505

INTERNATIONAL ASSOCIATION OF MACHINISTS and AEROSPACE WORKERS,

(AFL-CIO), LOCAL 2725

Plaintiff, Appellee,

v.

CARIBE GENERAL ELECTRIC PRODUCTS, INC.,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

__________________________

____________________

Before

Boudin, Circuit Judge,

_____________

Campbell and Bownes, Senior Circuit Judges.

_____________________

____________________

Felix Benitez Colon with whom Rivera Tulla & Ferrer

____________________
_____________________
for appellant.
Luis F. Padilla for appellee.
_______________

____________________

March 13, 1997

____________________

was on br

BOUDIN,

Circuit Judge.
______________

The

union,

representing the

employees of

Caribe

General Electric

company in the district court

for a

five

specific

bargaining agreement.

as

to

all of

the

this

an order requiring it to

grievances

under

collective

The district court ordered arbitration

grievances, ruling

should determine whether the

hold that

the

for damages and related relief

refusal to arbitrate, or for

arbitrate,

("Caribe"), sued

was a

that

the arbitrator

grievances were arbitrable.

matter for

the court

to decide

We

and

remand as to four of the grievances for further proceedings.

The facts

Caribe and

of importance to this

its union

had a collective

which, as

most do, contained many

grievance

procedure, and an

for

mandatory

arbitration

appeal are undisputed.

bargaining agreement

substantive provisions, a

arbitration provision providing

of

specified

categories

of

disputes.

five

During the

term of

different actions that

grievance procedure

Three

one episode:

Ibrahim

Calder n were

group leaders

The company eliminated

and Calder n

and

caused the union

and, when that did

to demand arbitration.

its functions into

this agreement, Caribe

retained Rosario

to invoke the

not resolve matters,

of the grievances grew out of

Rosario, Herminio L pez,

of three

one of

leaders of the

but without

-2-2-

and Esteban

separate departments.

the departments,

the other two; it

as group

took

integrating

then re-assigned L pez

enlarged departments,

a leadership

post.

The

fourth grievance

concerned Antonio

V zquez, who had

been a

dispatcher; Caribe eliminated that position, reallocated some

of the

duties to

lower job

a shipping

classification.

clerk, and

The fifth

left V zquez

in a

grievance involved the

temporary assignment of Narciso Torr ns for more than 30 days

to

perform

the

tasks

of

two

assembly

workers who

were

consecutively on vacation.

When the grievance

procedure failed to resolve

matters

and Caribe refused arbitration, the union brought suit in the

district court under

29 U.S.C.

185,

claiming inter alia

___________

that the grievances were subject to mandatory arbitration and

that

the

company

arbitration.

On

district court

subject

to

should

be

required

cross-motions

for

ruled that the five

mandatory arbitration

to

proceed

summary judgment,

with

the

grievances were arguably

and

that

the arbitrator

should resolve this issue.

Caribe has

grievances,

arbitrated.

district

appealed

agreeing

that

Conversely,

court

arbitrability to

was

the judgment

the

the

mistaken

as

Torr ns

union now

in

to four

matter

should

concedes that

referring

the arbitrator; but

of

the

it says that

issue

the

be

the

of

all five

grievances are subject to

order

to

arbitrate

mandatory arbitration and that the

should

be affirmed

outright

on

this

alternative ground.

-3-3-

Labor

arbitration

depends

upon

contract,

AT&T
____

Technologies, Inc. v. Communications Workers, 475 U.S. 643,

___________________
_______________________

648 (1986);

(1st

Cir.

Tejidos de Coamo, Inc.

______________________

1994), and

("CBA") in this case

in

of

agreement.

falls

collective bargaining

of

a specific

cases,

6(a).

category, it

arbitration by section

including "[t]he

provision

CBA art. XXXIV,

within this

8, 12

agreement

provides for mandatory arbitration only

certain categories

violation

the

v. ILGWU, 22 F.3d
_____

7 of the

or

claimed

provisions" of

But even if a grievance

is excluded

from mandatory

same article under

certain

conditions, such as where the grievance

(f) Would require an

arbitrator to consider,

on or decide any of the following:

(1)

The elements

assignment;

of

the

an employee's

job

rule

(2) The title or other designations of an

employee's job classification;

(3) The right of

management to assign or

reassign work or elements of work.

The Supreme

Court has

held that "[u]nless

clearly and unmistakably provide

whether the parties agreed

at 649.

issue

Here,

to

agreement

arbitration

the

that

otherwise, the question

to arbitrate is to be

the court, not the arbitrator."

in the

the parties

event of

may proceed "only after

-4-4-

of

decided by

AT&T Technologies, 475 U.S.

_________________

far from agreeing to leave

arbitrator,

the parties

the arbitrability

provided

dispute on

in

their

this issue,

a final [judgment] of a

Court

has

determined

arbitrable issues."

that

the

grievance

CBA art. XXXIV,

raises

4(a).

Thus, we agree with both parties that the district court

went

itself

astray in

that

arbitration.

grievance fell

ordering arbitration without

each

To

grievance

do so,

was

the court

subject

had to

within a provision for

first deciding

to

mandatory

decide that

the

mandatory arbitration

(e.g.,
____

section 6) and was not excluded by any other limiting

provision (e.g.,
____

union's

section 7).

request that

We

we decide

turn,

therefore, to

the issue

the

of arbitrability

ourselves and affirm the district court's arbitration order.

Since the union has not supplied us with the grievances,

it is very hard to tell whether each one rests on a colorable

claim that

violated,

a specific

as

provision of

required by

the agreement

section 6.

But even

information, we could not determine without

whether

arbitration

arbitrator

of

each

grievance

to consider,

rule

on

or

has been

with that

more information

would

decide"

"require an

one

of

the

enumerated subjects that section 7(f) excludes from mandatory

arbitration.

For

the same

reason,

Caribe's

alternative

request

that we

direct

summary judgment

in

its favor

is

without merit.

While a

further word

Caribe

remand for further proceedings

or two may be

has not

limited

helpful to the

its claim

-5-5-

is necessary, a

court on remand.

of non-arbitrability

to

section 7(f) but has also invoked other grounds of objection;

section 7(e) of the

same article, which Caribe has

appeal, is a close

attention.

But

companion to section 7(f) and

we

are concerned

invocation of two "management

cited on

might need

about Caribe's

repeated

rights" provisions as

shields

against mandatory arbitration.

One is

the basic "management rights"

article unrelated

beside

the point.

management

rights

to arbitration,

CBA

which seems to

art. IV.

broadly

over

provision, in an

That

pertinent subjects--such

as

management

rights

are

retained

provisions

of this

Agreement which

us wholly

provision reserves

range

reallocation of

"subject

of

potentially

work--but

only

to

expressly qualify

the

those

this

right."

baffled

Given

as

to

this

"subject .

. .

why

Caribe thinks

to"

this

proviso, we

are

management

rights

may seem obscure;

but to

provision has any relevance.

The union's

the

extent

provisions,

"management

they

we

rest

upon

seriously

rights" clause

those provisions

XXXIV,

grievance claims

4(b)(4);

the

doubt

could be

or to restrict

violation

that

the

arbitration.

See
___

to negate

CBA art.

The parties are

issue on remand, if Caribe

but we do not

IV

v. Warrior & Gulf

________________

Navigation Co., 363 U.S. 574, 584-85 (1960).

______________

press it,

specific

article

read either

United Steelworkers
____________________

welcome to argue this

of

think the company should

chooses to

be unduly

-6-6-

encouraged by its earlier

success in International Assoc. of

_______________________

Machinists & Aerospace Workers v. General Elec. Co., No. 89_______________________________

_________________

1115JP, 1990 WL 29806 (D.P.R. 1990), which was not appealed.

The

arbitration

somewhat less

article

itself

contains

second,

detailed reservation of management rights, CBA

art. XXXIV,

4(b)(4), but it too appears to permit mandatory

arbitration--if

otherwise provided--so long as the grievance

is based on an express limitation in the agreement and is not

subject to

have not

taken

section 7's exclusions.

See id. ("[T]he parties

___ ___

agreed to arbitrate demands

which challenge action

by the

company in

the

exercise of

any [management]

rights, except where such challenge is based upon a violation

_____________________________________________________

of any such expressed limitations (other than those set out

_____________________________________________________________

in Section 7 of this Article XXXIV).") (emphasis added).

___________________________________

On remand,

we suggest that the

on a grievance-by-grievance basis

district court consider

whether--as to each of the

four remaining grievances--the grievance

colorable

claim that

the company's

(1) is based upon a

action violated

one or

more

specific

excluded from

exclusions

of

provisions of

mandatory arbitration

section

satisfied, it appears

ordered,

the agreement

7.

by one or

Unless

that mandatory

so the district court may

conditions.

-7-7-

and (2)

both

is not

more of

the

conditions

are

arbitration cannot

be

not need to rule on both

There

may

mandatory

other

arbitration

encourage the

issues.

be

bases

that

we

parties to help

As already

noted,

for,

have

for the

presumption

collective

presumption.

union

in

we doubt

to invoke

favor of

bargaining

CBA Art.

overlooked;

agreement

that the

but

on,

we

focus the

management-

And it certainly does not

the Supreme

arbitration

XXXIV,

limitations

the district court

rights reservations are pertinent.

help

or

Court's default

where,

explicitly

4(b)(5);

as here,

the

negates

the

AT&T Technologies,
_________________

475 U.S. at 650.

Finally, it

is worth emphasizing that

the issue before

the

district court on remand in

of the grievances; it

is simply whether they are

mandatory arbitration.

this case

was the

this case is not the merits

All that the union

failure to afford

and that is the only issue

grievance is

alleged violation of

mandatory arbitration,

court.

Needless to say, even

excluded from mandatory

union is not necessarily

complained of in

before us or the district

AT&T Technologies, 475 U.S. at 649-50.

_________________

if a

subject to

arbitration, the

without contractual remedies for an

the agreement.

Cf. Vaca v.
___ ____

Sipes, 386
_____

U.S. 171, 184 n.9 (1967).

The order of the district court is therefore affirmed as

________

to the Torr ns grievance

but modified to require arbitration

________

on the merits, the company having agreed that

is arbitrable.

this grievance

The order requiring arbitration is vacated as

_______

-8-8-

to

the

other

four

grievances

and

remanded
________

proceedings not inconsistent with this decision.

for

further

It is so ordered.
________________

-9-9-