APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 75-1776).
Biggs, Gibbons and Weis, Circuit Judges.
This is an action brought by Local 13, International Federation of Professional and Technical Engineers, AFL-CIO (Local 13), a labor organization representing certain General Electric Company (GE) employees, seeking an injunction to restrain GE from transferring or otherwise removing certain disputed work to Burlington, Iowa, and to compel GE to submit the issue of the removal of work to binding arbitration. The United States District Court granted the motion of Local 13 for a preliminary injunction and GE has appealed. Jurisdiction is vested in this Court by virtue of 28 U.S.C. § 1292(a)(1).
Local 13 represents approximately 229 draftsmen employed by GE at its switch-gear plant in Philadelphia. The members of the bargaining unit do both electrical and mechanical drafting. On April 17, 1975, GE notified Local 13 that it intended to transfer its drafting for one switch-gear product known as 5 KV Vertical Lift Equipment to its Burlington, Iowa, plant, and informed Local 13 that the work reassignment would force the layoff of 35 employees in the Philadelphia plant bargaining unit.
Local 13 immediately objected to the work transfers sought by GE and pursued the three stage grievance procedures authorized by a collective bargaining agreement of 1973-76.*fn1 Following the unsuccessful processing of its grievance or grievances, Local 13 invoked the arbitration provision of the collective bargaining agreement. GE refused arbitration of the issue, asserting that the management rights clause of the arbitration provisions relieved it of any obligation to arbitrate.*fn2
Local 13 then brought this suit pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, to compel arbitration and to enjoin GE from reassigning the drafting work from Philadelphia pending the completion of arbitration. The United States District Court found Local 13's grievance arbitrable under the collective bargaining agreement and restrained GE from transferring the work. GE filed a timely appeal to this Court.*fn3
GE insists that the management rights clauses of the arbitration agreement of 1973-76 exclude from the duty to arbitrate disputes concerning the transfer of work outside the bargaining unit. The Local takes the position that the transfer of the bargaining unit work is not specifically excluded from the scope of the labor agreement's arbitration clause and, therefore, federal labor policy raises a presumption of arbitrability.
The agreement, "Arbitration" Article XI, provides that either party may submit to arbitration:
"1. Any grievance which remains unsettled after having been fully processed through the same grievance procedure pursuant to Article X which involves either:
"(a) The interpretation or application of a specific provision of this agreement or
(b) A disciplinary penalty (including discharge) . . ."
Article XI. 3(a) provides: "The award of an arbitrator upon any grievance subject to arbitration as herein provided shall be final and binding upon all parties to this agreement provided that no arbitrator shall have any authority to add to, detract from, or in any way alter the provisions of this agreement or determine the arbitrability of any issue."
Article XI. 3(b) provides: " It is specifically agreed that matters relating to the management of the Company, including but not limited to the right to control operations and the assignment of work, subcontracting of work, the establishment or modification of any wage, salary or job classifications, or the authority to decide the appropriate classification of any employee shall not be subject to arbitration. It is also agreed that the mere inclusion of the Recognition Article in this Agreement is not intended to be a matter subject to arbitration and that the arbitrator shall have no authority to interpret or apply this Article."
Article XI. 4 says: "This Arbitration Article shall be construed according to the understanding of the parties that they do not intend that arbitration shall be a means of deciding all disputes which may arise between them during the term of this agreement and which they are unable to resolve through negotiation or by means of the grievance procedure, but shall be construed instead to mean that there shall be subject to arbitration only those disputes which the parties have specifically and plainly agreed to arbitrate as provided above."
Local 13 relies upon Article XI, emphasizing its language as follows: ". . . Any grievance. . . which involves (a) the interpretation or application of a specific provision of this agreement . . . shall be submitted to arbitration upon written request of either [party] . . ."*fn4
The local calls particular attention to the phrase "Any grievance" and takes the position that "it remains only to be seen whether the union grievance is specifically excluded by some other provision in the agreement." This statement will receive further consideration at a later point in this opinion. Local 13 also points out that GE's proposed transfer of bargaining unit work so as to cause the layoff of approximately one-fifth of the bargaining unit will have profound impact on the contract. It asserts: "This impact affects a variety of contractual provisions, especially those dealing with seniority, layoff and recall rights", citing specifically Article XIII, which provides in pertinent part, as follows: "1. (a) In all cases of layoff or transfer due to lack of work, total length of continuous service shall be the major factor determining the employees to be laid off or transferred (exclusive of upgrading). However, ability will be given consideration. (b) Similarly, in all cases of rehiring after layoff, such total length of continuous service shall be the major factor determining such rehiring."*fn5
Article XII contains a no-strike provision which, inter alia, provides in paragraph one that the Union might strike within twelve months of completion of grievance Step III procedures, short of arbitration, upon proper notification of GE. Paragraph two reads: "2. The Company will not lock out any employee or transfer any job under dispute from the plant nor will the management take similar action while a disputed job is under discussion at any of the steps of the Grievance Procedure as set forth in Article X, or if the matter is submitted to arbitration as provided in Article XI."
There is a "history" relevant to the intent of the parties in effecting the 1973-76 agreement. Whether it be admissible in the instant case is a question which is discussed hereinafter in note 13.
Briefly stated, that history is as follows: Exhibit "D-3, Exceprts [sic] from . . . GE-Local 13 . . . Agreement of 1960-63," sets out arbitration provisions, "Article XI-Arbitration", but does not include any language respecting "assignment of work." Exhibit "D-4, Excerpts from . . . GE-Local 13 . . . Agreement of 1963-66" does contain such a specific provision on arbitration and assignment of work in haec verba with that presently in the 1973-76 Agreement. Exhibit "D-5, Excerpts from the 1966-69 GE-IUE (AFL-CIO) National Agreement," while including a provision, "Article XV-Arbitration" contains, as excerpted in the record, no similar provision relating to "assignment of work". In Exhibit "D-10" is an outline of union proposals for 1969 negotiations presented to GE, dated September 2, 1969. Included in this is a reference to "Article XI-Arbitartion [sic]" which states: "Revise entire article to provide for arbitration of all issues which have been exhausted at third step of the grievance procedure without mutual agreement. The Union to have choice of right to strike in lieu of arbitration."
Also included in the record is a pamphlet, Exhibit D-1, executed February 27, 1970, which contains printed copies of "General Electric-Local 13, AFTE (AFL-CIO) Agreement of 1970-73 and 1970 Wage Agreement . . ." Under "Arbitration, Article XI. 3(b)," it states: " It is specifically agreed that matters relating to the management of the Company, including but not limited to the right to control operations and the assignment of work, subcontracting of work, the establishment or modification of any wage, salary or job classification, or the authority to decide appropriate classification of any employee shall not be subject to arbitration. . ."*fn6 The preamble of the agreement states: "All prior agreements between the Company and the Union are cancelled and superseded."
Exhibit "D-7" is a letter written to the president of Local 13 by W. G. Angell, Manager of Hourly and Nonexempt Relations, dated February 11, 1970, the third paragraph of which states: "It is mutually agreed that any such grievance shall be the subject of expeditious treatment in the grievance procedure, and it is the mutual intent of the parties to complete the full grievance procedure covered in Article X, relative to any grievances covered in paragraph 2 above, within thirty (30) calendar days from the date of notification to the Union by the Company that certain work and/or jobs will be transferred away from Philadelphia. In any event, the Company will not be obligated to withhold the effectuation of any such transfer of work and/or jobs for more than thirty (30) calendar days following notification to the Union of such transfer, except that, in any case in which the parties agree to arbitrate any such grievance the Company will, but only if the parties mutually agree, withhold transfer of the affected work or jobs until the arbitration decision shall have been received."*fn7
3. Findings of Fact and Law by the District Court
The learned District Judge made the following specific findings of fact on the 1973-76 ...