Kalodner, Hastie and Freedman, Circuit Judges.
This appeal is taken from the Judgment of the United States District Court for the District of New Jersey declaring the existence of an issue for arbitration in accordance with the collective bargaining agreement between the parties.
Suit was instituted by Communication Workers of America ("Union") against Bell Telephone Laboratories, Inc. ("Employer") for a declaration of its rights under the collective bargaining agreement between them and to compel arbitration. Jurisdiction is founded upon Section 301(a) of the Labor Management Relations Act, 61 Stat. 156, 29 U.S.C.A. § 185(a).*fn1
The facts are not in dispute. Union was, at the times relevant here, an industrial labor organization duly designated as the collective bargaining agent of certain employees of Employer. Union and Employer entered into a collective bargaining agreement as of January 6, 1961, effective until January 5, 1964. On January 10, 1962, Employer filled a vacant position (plant maintenance hand) by promoting one Finch. Union claimed that one Cobb was entitled to the position because his qualifications were substantially equal to those of Finch, and he had greater seniority. The controversy not being otherwise resolved, Union demanded arbitration and set forth the matter in dispute with respect to which it sought arbitration as follows:
"The Union charges that the Company failed to fulfill its commitment contained in Article 14, Section 14.02 in failing to promote employee Cobb to the position of plant maintenance hand, where Cobb and employee Finch had substantially equal qualifications, but Cobb had greater seniority. The Union demands that Cobb be promoted to the job of plant maintenance hand and be awarded back pay retroactive to January 10, 1962, the date when the promotion was effective."
Employer would not proceed to arbitration on the issue thus stated; hence, this action.
In the court below, Union asserted that it had stated an issue which on its face was subject to be arbitrated under Section 14.02 of Article 14 and Article 17 of the collective bargaining agreement.*fn2 Employer contended that Union failed to specify the contract commitment in Section 14.02 which could be deemed unfulfilled under the factual allegations presented and that the subject matter of the demand was outside the scope of the "uniquely restricted" arbitration provisions of Article 17. It further offered to prove the meaning of the agreement if the district court believed the contract was ambiguous, by adducing evidence of the negotiations respecting arbitrability of promotions.
The district court concluded that the issue presented by Union sufficiently informed Employer of the subject matter sought to be arbitrated and that on its face the claim to arbitration was within the arbitration provisions of the agreement. It rejected the offer of proof of Employer.
We agree with the district court.
In substance, Employer asserts that no "commitment" under Section 14.02 is involved because that Section recites that seniority shall be determinative "when two or more employees have in the opinion of Laboratories substantially equal qualifications for the job to be filled." Accordingly, it says, unfettered discretion to determine whether qualifications are "substantially equal" is reserved to management. It concludes that the substance of the dispute is promotion, and therefore the grievance should be classified either as involving unfair treatment of, or discrimination against, an employee (Section 16.01(3)), or as involving conditions of employment (Section 16.01(2)), neither of which is a subject of required arbitration.
Notwithstanding the assertion of Employer that the arbitration clause of the agreement is "uniquely restricted", it does provide for the arbitration of "differences arising with respect to the interpretation of this Agreement or regarding a charge that a commitment herein contained has not been fulfilled". Article 17, Section 17.01, Appendix, infra. While Employer professes that Union points to no unfulfilled "commitment" under Section 14.02, it relies upon its contention that in the context of the factual situation the agreement gave to management unfettered authority to decide what were "substantially equal qualifications." Whether this is so involves, in our opinion, as in the district court's opinion, an issue of interpretation of the agreement.
We adhere to our decisions in Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 3d Cir., 283 F.2d 93 (1960) and General Warehousemen and Employees Union No. 636 v. American Hardware Supply Co. 3d Cir., 329 F.2d 789 (1964), cert. den. 379 U.S. 829, 13 L. Ed. 2d 37, 85 S. Ct. 57. They bespeak our view of the law settled in United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 4 L. Ed. 2d 1403, 80 S. Ct. 1343 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960); and United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960). They are consistent with John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 11 L. Ed. 2d 898, 84 S. Ct. 909 (1964). These cases stand for the proposition that when the issue presented is, on its face, within the contractual agreement to arbitrate, the court shall not interfere.
Employer relies upon Pacific Northwest Bell Telephone Co. v. Communications Workers of America, 310 F.2d 244 (9 Cir. 1962), in support of its offer of proof. We need not decide whether the theory of that case is supportable, for it is distinguishable: there, the court was faced with what it considered an omission of expression in the contract. Here, the contract to arbitrate specifically includes ...