

                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 &amp; 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

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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.

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     Labor   arbitration   depends   upon    contract,   AT&amp;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&amp;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

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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

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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  &amp;  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

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encouraged by its earlier  success in International Assoc. of                                                                         

Machinists  &amp; 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.

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     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&amp;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&amp;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                                                                      

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to  the  other  four  grievances  and  remanded  for  further                                                           

proceedings not inconsistent with this decision.

     It is so ordered.                                 

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