
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  was on brief            ____________________           _____________________        for appellant.            Luis F. Padilla for appellee.            _______________                                 ____________________                                    March 13, 1997                                 ____________________                 BOUDIN,  Circuit  Judge.   The  union,  representing the                          ______________            employees of  Caribe  General Electric  ("Caribe"), sued  the            company in the district court  for damages and related relief            for a  refusal to arbitrate, or for  an order requiring it to            arbitrate,  five  specific  grievances  under   a  collective            bargaining agreement.  The district court ordered arbitration            as  to  all of  the  grievances, ruling  that  the arbitrator            should determine whether the  grievances were arbitrable.  We            hold that  this  was a  matter for  the court  to decide  and            remand as to four of the grievances for further proceedings.                 The facts  of importance to this  appeal are undisputed.            Caribe and  its union  had a collective  bargaining agreement            which, as  most do, contained many  substantive provisions, a            grievance  procedure, and an  arbitration provision providing            for   mandatory  arbitration   of  specified   categories  of            disputes.   During the  term of  this agreement, Caribe  took            five  different actions that  caused the union  to invoke the            grievance procedure  and, when that did  not resolve matters,            to demand arbitration.   Three  of the grievances grew out of            one episode:   Ibrahim  Rosario, Herminio L pez,  and Esteban            Calder n were  group leaders  of three  separate departments.            The company eliminated  one of  the departments,  integrating            its functions into  the other two; it  then re-assigned L pez            and Calder n  as group  leaders of the  enlarged departments,            and  retained Rosario  but without  a leadership  post.   The                                         -2-                                         -2-            fourth grievance  concerned Antonio  V zquez, who had  been a            dispatcher; Caribe eliminated that position, reallocated some            of the  duties to  a shipping  clerk, and  left V zquez  in a            lower job  classification.  The fifth  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  should  be  required   to  proceed  with            arbitration.   On  cross-motions  for  summary judgment,  the            district court  ruled that the five  grievances were arguably            subject  to  mandatory arbitration  and  that  the arbitrator            should resolve this issue.                 Caribe has  appealed  the judgment  as  to four  of  the            grievances,  agreeing  that  the  Torr ns  matter  should  be            arbitrated.   Conversely,  the  union now  concedes that  the            district  court  was  mistaken  in  referring  the  issue  of            arbitrability to  the arbitrator; but  it says that  all five            grievances are subject to  mandatory arbitration and that the            order  to  arbitrate  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);  Tejidos de Coamo, Inc.  v. ILGWU, 22 F.3d  8, 12                         ______________________     _____            (1st  Cir.  1994), and  the  collective bargaining  agreement            ("CBA") in this case  provides for mandatory arbitration only            in  certain categories  of  cases,  including "[t]he  claimed            violation  of  a specific  provision  or  provisions" of  the            agreement.   CBA art. XXXIV,   6(a).  But even if a grievance            falls  within this  category, it  is excluded  from mandatory            arbitration by section  7 of the  same article under  certain            conditions, such as where the grievance                 (f) Would require an  arbitrator to consider,  rule                 on or decide any of the following:                       (1)  The elements  of  an employee's  job                      assignment;                      (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  the parties            clearly and unmistakably provide  otherwise, the question  of            whether the parties agreed  to arbitrate is to be  decided by            the court, not the arbitrator."   AT&T Technologies, 475 U.S.                                              _________________            at 649.  Here,  far from agreeing to leave  the arbitrability            issue  to  the  arbitrator,  the parties  provided  in  their            agreement  that  in the  event of  a  dispute on  this issue,            arbitration  may proceed "only after  a final [judgment] of a                                         -4-                                         -4-            Court  has  determined  that  the  grievance  .  .  .  raises            arbitrable issues."  CBA art. XXXIV,   4(a).                 Thus, we agree with both parties that the district court            went  astray in  ordering arbitration without  first deciding            itself  that   each  grievance   was  subject  to   mandatory            arbitration.  To  do so,  the court  had to  decide that  the            grievance fell  within a provision for  mandatory arbitration            (e.g.,  section 6) and was not excluded by any other limiting             ____            provision (e.g.,  section 7).   We  turn,  therefore, to  the                       ____            union's  request that  we decide  the issue  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  a specific  provision of  the agreement  has been            violated,  as  required by  section 6.    But even  with that            information, we could not determine without  more information            whether  arbitration  of  each  grievance  would  "require an            arbitrator  to consider,  rule  on  or  decide"  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  remand for further proceedings  is necessary, a            further word  or two may be  helpful to the  court on remand.            Caribe  has not  limited  its claim  of non-arbitrability  to                                         -5-                                         -5-            section 7(f) but has also invoked other grounds of objection;            section 7(e) of the  same article, which Caribe has  cited on            appeal, is a close  companion to section 7(f) and  might need            attention.   But  we  are concerned  about Caribe's  repeated            invocation of two "management  rights" provisions as  shields            against mandatory arbitration.                  One is  the basic "management rights"  provision, in an            article unrelated  to arbitration,  which seems to  us wholly            beside  the point.   CBA  art. IV.   That  provision reserves            management  rights  broadly  over  a  range  of   potentially            pertinent subjects--such  as  reallocation of  work--but  the            management  rights   are  retained  "subject  only  to  those            provisions  of this  Agreement which  expressly qualify  this            right."   Given  this  "subject .  . .  to"  proviso, we  are            baffled  as  to  why  Caribe thinks  this  management  rights            provision has any relevance.                    The union's  grievance claims  may seem obscure;  but to            the  extent   they  rest  upon  the   violation  of  specific            provisions,   we  seriously   doubt  that   the   article  IV            "management  rights" clause  could be  read either  to negate            those provisions  or to restrict  arbitration.  See  CBA art.                                                            ___            XXXIV,    4(b)(4);  United  Steelworkers  v. Warrior  &  Gulf                                ____________________     ________________            Navigation Co., 363 U.S. 574, 584-85 (1960).  The parties are            ______________            welcome to argue this  issue on remand, if Caribe  chooses to            press it,  but we do not  think the company should  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  article  itself  contains  a  second,            somewhat less  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  section 7's exclusions.   See id. ("[T]he parties                                                  ___ ___            have not  agreed to arbitrate demands  which challenge action            taken  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  district court consider            on a grievance-by-grievance basis  whether--as to each of the            four remaining grievances--the grievance  (1) is based upon a            colorable  claim that  the company's  action violated  one or            more  specific  provisions of  the agreement  and (2)  is not            excluded from  mandatory arbitration  by one or  more of  the            exclusions  of  section  7.     Unless  both  conditions  are            satisfied, it appears  that mandatory  arbitration cannot  be            ordered,  so the district court may  not need to rule on both            conditions.                                         -7-                                         -7-                 There  may  be  other  bases  for,  or  limitations  on,            mandatory  arbitration  that  we  have  overlooked;   but  we            encourage the  parties to help  the district court  focus the            issues.   As already  noted,  we doubt  that the  management-            rights reservations are pertinent.  And it certainly does not            help  for the  union  to invoke  the Supreme  Court's default            presumption  in  favor of  arbitration  where,  as here,  the            collective  bargaining  agreement   explicitly  negates   the            presumption.  CBA Art.  XXXIV,   4(b)(5);  AT&T Technologies,                                                       _________________            475 U.S. at 650.                 Finally, it  is worth emphasizing that  the issue before            the  district court on remand in  this case is not the merits            of the grievances; it  is simply whether they are  subject to            mandatory arbitration.   All that the union  complained of in            this case  was the  failure to afford  mandatory arbitration,            and that is the only issue  before us or the district  court.            AT&T Technologies, 475 U.S. at 649-50.  Needless to say, even            _________________            if a  grievance is  excluded from mandatory  arbitration, the            union is not necessarily  without contractual remedies for an            alleged violation of  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  this grievance            is arbitrable.  The order requiring arbitration is vacated as                                                               _______                                         -8-                                         -8-            to  the  other  four  grievances  and  remanded  for  further                                                   ________            proceedings not inconsistent with this decision.                 It is so ordered.                 ________________                                         -9-                                         -9-
