Earl Warren: 55, Independent Petroleum Workers of America Incorporated versus American Oil Company. Mr. Feller.
David E. Feller: May it please the Court. This case arises out of a suit by a union to compel arbitration of grievance which the union filed complaining that the employer violated the agreement and has passed practice by contracting out certain work. Now the case is, in many respects, a replay of this Court's decision in the Warrior & Gulf and American Manufacturing cases, I think in the brief time I have -- I can best describe the case in terms of its factual background going way back before the filing of this grievance. This -- I'm sorry, until 1952, this union which represents the employees at a refinery in Whiting, Indiana, had a collective bargaining agreement with the employer, which provided in very broad terms that any questions at all arising during the term of the agreement and specifically questions pertaining to rates of pay, wages, hours of employment, or other conditions of the employment not covered by the contract could be processed, those questions could be processed during the term of the agreement through the grievance procedure and be taken to arbitration. Here, they used to arbitrate what the wager rates used to be. In 1952, and this is all reflected in the affidavits filed in the court below in this case, the agreement of the parties was changed to provide insofar as relevant here that arbitration would be limited to questions involving -- directly involving alleged violations of the agreement and also questions alleging a violation of past practice, custom, or usage relative to working conditions. This cause remained in the agreement, virtually unchanged in successive agreements from 1952 on. It also provided that with respect to matters not covered by the agreement in the area of wages, hours, and working conditions, the grievance procedure could be used. Indeed, the grievance procedure was open to any question at all. But that rather than arbitrate, if the company refused to arbitrate, the union could strike. This was the form of the grievance procedure language in the agreement of March 1957, which was the first agreement with which we're concerned here. During that time -- term of that agreement, there arose a grievance filed by certain Cement Finishers, now called the Cement Finishers' grievance, who claimed that the company by contracting out certain cement finishing work had violated the terms of the agreement and specifically the recognition clause and had violated past practice which was that this kind of work should always be done by employees in the bargaining union. The case was carried through the grievance procedure. The company refused to arbitrate and the union brought suit. In the Cement Finishers' case, the union suit asked only that the claim that this action of the company violated past practice be arbitrated. The District Court and then the Court of Appeals held that this grievance was not arbitrable under the then state of law. The Court of Appeals relied particularly upon the then Fifth Circuit decision in the Warrior & Gulf case as well as in the First Circuit's decision of the Local 201 case, which said that no grievance was arbitrable unless the Court could find a governing provision in the contract which would guide the arbitrator to dispose of the grievance. That decision came down in March 1960, whereas this Court on June 20th, 1960 reversed the Warrior & Gulf decision of the Fifth Circuit and impliedly, though not specifically, reversed the rule announced by Judge Magruder in the First Circuit which have been relied upon by the Court of Appeals and set down the rule which has been followed in the federal courts ever since. Subsequent to the Court's decision, this Court's decision in March of 1960, two things happened. First, the parties then extended their agreement -- excuse me, a new agreement without changing the language. That occurred in August 1960 and in October 1960, what I will call the Crane Operators' grievance arose. The company contracted out certain crane operation work. The union filed a grievance and sought to have it arbitrated and the company refused. In this case, the suit was in two parts and that is the present case. The first claim was that the company was obligated to arbitrate the union's claim that it had violated the agreement and specifically the recognition clause by giving the work, the crane work, to an outside contractor. The second paragraph of the complaint was broken into two paragraphs. Claim that the company had violated past practice, that the past practice was to have this work done by the crane operators employed by the company and the union asked that that claim be arbitrated. After an answer was filed, a motion for summary judgment was filed by the union on paragraph 1, the complaint asking arbitration of the claim of violation of the agreement. The defendant company filed a motion for summary judgment asking that both paragraphs of the complaint be dismissed. The District Court held that the dispute was an arbitrable dispute under the decision of this Court in the Warrior & Gulf and American Manufacturing cases and ordered the defendant to arbitrate the grievance, the entire grievance but it rested that entirely on paragraph 1 of the complaint and dismissed paragraph 2 as moot and denied of course the defendant's motion for summary judgment. The defendant appealed. The Court of Appeals held on appeal, reversing the District Court, first, that this dispute was not an arbitrable dispute. And I will not try to paraphrase the reasoning in the Court of Appeals but basically I think it was that it could not find any governing provision in the agreement which would govern an arbitrator's disposition of the case and therefore, there was nothing to arbitrate. It characterized as a rather strong language the union's contention that its claim that the company violated the agreement made the dispute arbitrable. It held as an alternate holding that the prior decision in the Cement Finishers' case constituted a collateral estoppel which prevented the union from processing this grievance or indeed any other grievance involving the contracting out of work, and this Court of course granted certiorari. Now, if Your Honors please, I think this case is a very simple and easy case because I think it is governed fully and without reasonable possibility of distinction by the two decisions which this Court issued in June of 1960. In the American Manufacturing case, this Court held that where the parties have agreed that questions of interpretation or application or claimed violation of an agreement, are to be determined by an arbitrator. Then when the union makes such a claim, that is that the employer violated the agreement and that the employer is wrong, action was erroneous as a matter of interpretation or application of the agreement then that claim is entitled to be arbitrated because that's what the parties have said, that any such claim shall be arbitrated. The Court in passing on the question of arbitrability, this Court said does not have to decide whether there is merit in the grievance or whether in its view, the contract covers the grievance or not. The question which is to be arbitrated is whether is the claim which the union has made that the company violated the agreement. The measurement is not to be made in the terms of subject matter or anything else but in terms of what the union's claim is, i.e. what is the arbitrator to decide. And just so in this case, the union is asked to have arbitrated its claim that the company's action violated the agreement and this Court said, it is not part of any court's business to decide whether there is merit in that claim or not. The Court -- the only function of the Court is to determine whether the employer has agreed to arbitrate such claims. The other part of this case is the claim that the company violated, if it did not violate the agreement, violated a past practice, such a claim which this agreement makes it arbitrable.
Byron R. White: Did I understand Mr. Feller, on the other part of the -- on the other part of the case, the Court's function, I suppose, is limited to determining arbitrability.
David E. Feller: That is correct, Your Honor.
Byron R. White: And would you say that when the union under this contract claimed a violation of the terms of the contract, that the Court has no function at all other than to order arbitration?
David E. Feller: I think that is correct.
Byron R. White: I mean if the -- let's assume that the union just can -- they admitted, well it will determine the agreement if we claim it's arbitrated, that we claim there was a violation anyway.
David E. Feller: Well, the question --
Byron R. White: But the arbitrator is the one that ought to fill us out and not the Court.
David E. Feller: Well, that's -- basically, if the arbitrator decides that there is no provision on the contract governing such --
Byron R. White: But, what does the Court do?
David E. Feller: The Court orders arbitration of that claim.
Byron R. White: Even if the union -- what if the Court says to the union when it comes in the Court on its complaint says, “Yes, I see that you claim a violation, but tell us what term of the contract is violated”, do you think that question is out of order?
David E. Feller: Well, I think the Court can inquire to see if it is a genuine claim in a sense that do you claim or which term of the agreement do you --
Byron R. White: But the union --
David E. Feller: -- claim is violated?
Byron R. White: But the union tells the Court that it's none of your business. We're just claiming a violation of the contract. We're just claiming arbitrability because that's what the contract says.
David E. Feller: Well, I don't regard arbitrability as a kind of a separate subject. Obviously, I suppose the union can say that's none of your business.
Byron R. White: But what if the Court ought to say though then?
David E. Feller: I think the Court ought to say, “Mr. Company, you arbitrate the claim that you have violated the agreement”, not the question of whether your contract -- conduct is proper or fair or should be held to be wrong.
Byron R. White: Its arbitrability in the merits of the grievance may be -- may involve the same question here.
David E. Feller: It very well may. In many cases, this was the whole -- in the discussion which I've had with this Court in 1960. We had Judge Magruder's theory which was then as expressed in the two, in one of the cases was cited in the first decision here that the Court had to determine for itself whether there was a term of the agreement which the arbitrator could use as a governing standard. But of course that involves interpretation of the agreement and because there are many restrictions in an agreement which are implied not expressed. And this Court said, it is none of the Court's business to determine the nature of the standards which the arbitrator applies or whether in fact there are any at all. Perhaps, the arbitrator will look at the case and says, “You have claimed that they violated the agreement. You are unable to show me any provision of the agreement which I can find governs this agreement, and therefore this conduct is unregulated by the agreement. Grievance denied”. But that is not the function of the Court. That is the function of the arbitrator. Now, on the second provision which we ask arbitration --
William J. Brennan, Jr.: Mr. Feller, may I see if I understand you well. Let me see if I understand you accurately, does this go this far for example suppose in this instance, the employer had decided to discontinue this particular operation and the union came in and claim there are decisions to discontinue their operation, completely, is a violation of the agreement although there's absolutely nothing in the agreement at all -- on its face, in this company. Nevertheless, it's your position that even in that instance, all the Court's powers can't do anything but order arbitration and leave to the arbitrator the decision whether discontinuance of that operation (Voice Overlap) --
David E. Feller: Indeed, that is the classic case in which the union claims that you violate the recognition clause of the agreement. When you take the facts in the (Inaudible) case and put them into this record, I would say that arbitrators by enlarge insofar as you can generalize about their decisions, the kinds of contracting out which arbitrated genuinely -- generally find to be violations of the implied obligation of good faith and the recognition clause are the kinds of contracting out in which you, as they say, arbitrarily reduced the scope of the bargaining unit and of course eliminating the bargaining unit with the most -- the strongest case of arbitrarily --
William J. Brennan, Jr.: Well suppose --
David E. Feller: -- reducing its scope.
William J. Brennan, Jr.: -- an automobile manufacturer and the union says, the manufacturer decides it's going to introduce a new model of automobile and the union comes in and objects on the ground that the introduction of the new model is a violation of the agreement.
David E. Feller: Well, I think they would be entitled to have that claim.
William J. Brennan, Jr.: Arbitrated?
David E. Feller: Decided by an arbitrator. As you state the case, I don't think it would be a very good case or as I think with -- in the discussion of the Warrior & Gulf case. Suppose the contract provided four hours call-in pay and an employee come in and said I want eight hours call-in pay because that's what it says in the agreement. The agreement plainly sets forth. But he's entitled to have that question decided by an arbitrator even though it may be plain to you, to me or to anybody but that full of an arbitrator that this is what the contract means because it is the arbitrator's judgment which the parties have bargained it for. The arbitrator's interpretation of the agreement, the arbitrator's interpretation of what is implied in the agreement and what is not implied in the agreement. Now, that doesn't mean again that the conduct in the case is governed by the agreement. It very well may not be, but that is the question of interpretation and application of the agreement.
Byron R. White: So there are no -- under your approach, there are no nonarbitrable matters if the union just says violation.
David E. Feller: Well, there are no -- nonarbitrable claims of violation of the agreement. That is correct.
Byron R. White: Yes.
David E. Feller: Under an agreement which says, that the claims of violation agreement shall be arbitrated. I think --
Byron R. White: Or, or you --
David E. Feller: -- that's almost chronological.
Byron R. White: Or even say, don't use the word violation in the contract, but you could use -- you've got the same argument with the Board's interpretation.
David E. Feller: Well now, if you're talking about the arbitration, then I have to look at the arbitration clause, the arbitration clause may say only questions concerning wages may be arbitrated.
Byron R. White: Well, I understand it.
Byron R. White: But if -- but if it says in application or interpretation that leaves out the word violation, you could make the same argument as found on those words.
David E. Feller: Well, I think I could make it --
Byron R. White: Yes.
David E. Feller: -- under application and interpretation that -- in each case, you have to look at the content, the scope which the arbitration clause is intended to be given. And in this case, I think that the language is such. It says, directly involving. And I frankly say it in a way -- directly involving any allegation of violation of the agreement and this was an allegation of violation of the agreement. And I think that is -- that is an open-and-shut matter under this Court's decision --
Byron R. White: Well this is a --
David E. Feller: -- in American Manufacturing.
Byron R. White: This section here with a lot of waste of words --
David E. Feller: Oh no.
Byron R. White: -- in terms of trying to limit, it sounds like it's trying to limit the subject --
David E. Feller: Well no. As I tried to make it clear, prior to 1952 when these words were put in, you could file any sort of claim --
Byron R. White: I understand.
David E. Feller: -- not claiming a violation of the agreement. You say this isn't covered by the agreement. We think the wages for this job ought to be higher and you could file that claim, the company was obliged there and they had to arbitrate it, and they did. In the appendix to this very agreement, there are some wage rates which are set and stated to be pursuant to an arbitrator's award. These were arbitrator's award prior to 1952. There are contracts in which party say any matter relating to wages, hours and working conditions that you want to take up, you can take up and if we can't reach agreement on it, we will arbitrate it.
William J. Brennan, Jr.: Now, do I understand Mr. Feller that this contract has some limitations to wages, hours, and working conditions?
David E. Feller: It has -- the limitation, there are two limitations. One, it says, that with respect to, and I think I better spell it out. It's on pages 11 and 12 of the record of the record. Questions which may be referred to arbitration shall be limited to questions directly involving or arising from applications, interpretations or alleged violations of the terms of the agreement. Where we get into working conditions, it's over on turning the page over at the top of page 12 of the record where it says, questions of applications or interpretations or alleged non-compliance with past policies, practice, customs, and usages relative to working conditions also are arbitrable, even if they are not covered in the agreement. And finally, at the bottom of the page, in (d), it says the company will bargain with the union with respect to matters relating to rates of pay, hours of employment, and other conditions of employment that brought us possible scope which are not covered in this agreement or in any side agreement. But each party shall have the right to refuse to arbitrate any such matter and then the no-strike clause applies. So I suppose that any matter within the scope of bargaining under the Act can be processed through this grievance procedure.
William J. Brennan, Jr.: But I'm just wondering Mr. Feller, what consequences (d) under your interpretation of (a)?
David E. Feller: Well, under my interpretation of (a) what is -- what is the consequence of (d) is if the union comes in and says, “Well, there's no provision on the allocation of overtime” and I don't have the full contract or on some other matter relating to wages, hours and terms and conditions of employment, it's not a very big agreement. I can -- I know the basic, still the agreement is about ten times as big as this. I'm sure there are a lot of matters within the scope of bargaining not covered by this agreement, and if the union comes in and says, “We want such a provision,” the company here says, “It will --
William J. Brennan, Jr.: Yes, but if the union said -- this certainly seems to exclude things not covered from the agreement from arbitration but if the union says as I understand you, in (d) it is a violation of the agreement then the Court can do nothing but order arbitration.
David E. Feller: The Court can order arbitration of the claim that is not -- that it is covered by the agreement. Now, if the arbitrator then says, this is not covered by the agreement then it falls within (d) and subsequently, the union can ask for the relief at once and try it. But the question is not -- the Court doesn't determine whether it's covered by the agreement because that involves the interpretation and application of the agreement. The arbitrator determines that. If it is something which the parties agree is not covered by the agreement, then (d) applies. If there's a dispute about it, if the union files a claim if it wishes to, that the company's action violated the agreement and the arbitrator determines that. I'd like to save a little time for rebuttal so I just want to say one word about the collateral estoppel issue. In our view, the collateral estoppel issue is really an almost frivolous issue for two reasons. First of all, the claim of violation of agreement which we've been talking about wasn't involved in the Cement Finishers' case. That was only a claim under the past practice clause. And second of all, we think it's clear that the doctrine of collateral estoppel is subject to the exception that where there is a change in the law, that doctrine does not apply. It is not a question of res judicata. That was a different grievance. That was the Cement Finishers' grievance. We now have the Crane Operators' grievance. And we think that it is clear that the -- this Court's decision in June of 1960 did make a substantial change in the law and in addition to the other reasons which we spelled out in the brief, we think the doctrine of collateral estoppel has no applicability. One final word, the company says that both claims are not here and I will confess that the court below, both courts below, regarded this whole case and the question is, does the company oblige to arbitrate the question of contracting out. As I think the -- this Court's decisions in 1960 said and it's the essence of our argument, the Court does not decide whether a subject matter is arbitrable nor does the arbitrator decides subject matter. The arbitrator decides claims. There was a claim in this case that the company violated the agreement. There was a claim in this case that it violated past practice. Those are two separate claims. The District Court regarded them as one and it found arbitrability as to one and said arbitrate the grievance, the whole grievance. The Court of Appeals operated in the same way. It said those are two reasons why you arbitrate and we will reverse on both. Now, there are both here because the Court of Appeals directed summary judgment for company both claims. But any question that are not here disappears when you look correctly as I think this Court's decision requiring it to do, the fact that the Court orders not a grievance arbitrator, it ordered -- it says that this issue will be arbitrated. If the Court sustained this under the 10 (a) (1), the violation, then arbitrator will decide whether the company's action violated the agreement. That's all they decided, not whether it was good, proper, fair or violated past practice. If the Court says that the claim a violation of past practice, it's arbitrable as we think it is under parallel reasoning, then the arbitrator decides did the company's action violate past practice. And I think that solves our problem. Thank you.
Earl Warren: Mr. Anderson.
Frederic D. Anderson: Mr. Chief Justice, may it please the Court. I think that neither the parties nor the court below were in any disagreement basically about what this Court has held in American Manufacturing, Warrior & Gulf, and the cases which followed it. Certainly, this Court has said that it is for the Court to determine whether or not the employer has promised to arbitrate this kind of grievance. If the Court decides that the employer has so promised, then the Court must order arbitration without getting into the merits of the grievance. If the Court decides looking at the contract that there is no promise to arbitrate this kind of grievance, then the merits are not reached either in the court proceeding or in the non-existent arbitration agreement. Now, we submit that the Court in this case did exactly that. A careful reading of the Court's opinion will show that it stated those principles and only those principles that it considered the sole question before it to be whether or not the company had promised to arbitrate this kind of grievance, and it found that it did not. Now, we think that where we differ from the petitioner in this case is on two points. One is that the union has said in its brief that the language of the arbitration provision in this contract, the language which the court below admittedly had to interpret to find a promise to arbitrate, the union contends that this language is indistinguishable from the arbitration provisions in American Manufacturing and in Warrior & Gulf. The other point at which we differ is the union's suggestion that the court below got into the merits of this grievance. We submit that the court below did not. Now, the grievance and arbitration provisions of this contract are reprinted in the record on pages 8 through 14. There is no dispute about the fact that the access to the grievance procedure here is exceedingly broad essentially without limit. The article gets to the arbitration question in Section 9 and it says that if a question is not settled in the grievance procedure, the company or the union may refer the subject for arbitration and then it goes on with some provisions for the mechanics of the arbitration. Now, Section 10 which begins below the middle on page 11 of the transcript and occupies all of page 12 is a section which is devoted exclusively to limiting the scope of the arbitration. Section 10 begins with these words which govern all of Section 10. It says as a specific limitation on the foregoing Section 9 of this Article II, the following shall be effective. It then has four-lettered subparts to Section 2. Now, part (a) begins, questions which may be referred to arbitration shall be limited to. Part (d) indicates a broad area of matters relating to bargaining subjects and says that those which are not covered by this agreement as to them either party shall be entitled to refuse to arbitrate. Now, this is a very different clause than the court had to construe in looking for a promise to arbitrate in American Manufacturing and in Warrior & Gulf. In American Manufacturing, there was a broad promise to arbitrate and no word of exclusion or limitation at all. In Warrior & Gulf, there was a broad promise to arbitrate, modified only by a phrase which said that it excluded “matters which are simply a function of management”. In dealing with Warrior & Gulf, this Court suggested that the breadth of the arbitration clause and the very slight and very vague limitation thereon suggested that the Court, that the parties were much more concerned with having the arbitrator decide everything than they were in limiting the scope of his jurisdiction. Now, here with a very slight arbitration clause simply saying the company or the union may refer the subject to arbitration and with almost a page and a half of limitation and exclusion and the expressed language may refuse to arbitrate. We have a situation in which the parties were more concerned with limiting the scope of the arbitrator's power. Now, this particular grievance is a grievance with respect to the contracting out of work. We submit that it is excluded from arbitration by Section 10 of Article II. We think this is so in two ways. We think the clearest exclusion is in part (d). Now, part (d) says that the company will bargain with resurgence, with respect to certain matters and that the company may refuse to bar -- may refuse to arbitrate with respect to any such matter. Now, surely if the subject of contracting out is one of those matters, then the parties have said that the company is entitled to refuse to arbitrate with respect to it and we did. It was therefore for the Court and not for the arbitrator to determine whether or not contracting out was one of those matters. Now, in order to determine whether or not contracting out was a matter relating to rates of pay, hours of employment and other conditions of this employment -- of this -- other conditions of employment which are not covered in this agreement, the Court had to look to the agreement to see whether it was covered. For if it had not done so, then the parties would have lost the benefit of their contract which excused them from arbitrating such matters. Now, fortunately in this case, the Court didn't have to look all over the agreement because the union had said in the grievance where it was that it contended that this matter was covered by the contract. And it settled on Article I, Section 1 which is printed on page 8 of the transcript. Now, this Section is phrased almost exactly in the language of Section 9 (a) of the National Labor Relations Act. Section 9 (a) which is reprinted in a footnote on page 30 of our brief provides that representatives selected by a majority of the employees in an appropriate unit shall be the exclusive representatives of all employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. Looking at Article I, Section 1 which is the contract provision, which the union says deals with the matter of contracting out, it appears that is written in the same language. In other words, Article I simply says that the company recognizes that the union has the status which is given to it by the statute. Now, it is established in this agreement that although Section 1 relates to rates of pay, wages, hours of employment, or other conditions of employment, not all of those things are matters covered by this agreement because part (d) at the bottom of page 12 expressly says that some of those things are matters not covered by this agreement and that each party shall have the right to refuse to arbitrate --
William O. Douglas: Page what of the record?
Frederic D. Anderson: -- any such matter. Sir?
William O. Douglas: Page?
Frederic D. Anderson: At the bottom of page 12.
William O. Douglas: Of what?
Frederic D. Anderson: I'm sorry, of the transcript.
William O. Douglas: Of the transcript. Thank you.
Frederic D. Anderson: Now, the Court, therefore had to look at the contract to see whether contracting out was one of the matters not covered by the agreement or was one of the matters covered by the agreement and the Court found that it was not one of the matters covered by the agreement for four reasons. One of course is this, is the fact and it is not even slightly conclusive that there is no reference, no expressed reference to contracting out in this agreement. Now secondly, there is the fact which I have just mentioned that the broad language of the statute repeated in Article I, Section 1 on page 8 of the transcript is not -- does not bring in to the agreement, everything within that language because part (d) of the bottom of page 12 of the transcript expressly said that it did not. Now third, the Court looked at the bargaining history and the Court found from the bargaining history which is plain in the transcript that the union had repeatedly sought as the contract came up for renegotiation to have something put in the contract dealing with the matter of contracting out and in bargaining, the company had refused and the bargain that the parties made did not put in something on that subject. Now, the Court said that this bargaining history was not con -- not controlling but that it fortified the conclusion that the plaintiff's position was without merit. But there was one other fact which was very important from the view of the Court, and this is something which comes in to this case in two ways. It comes in to this case in connection with collateral estoppel but that's not the matter with which I am dealing at this moment. This is matter of the prior litigation. In 1957, as Mr. Feller has said, there was before the Court a grievance which was identical in its language to this one except that the job referred to was different. It referred to crane -- to cement finishing, this one refers to crane operating, but it was verbatim the same otherwise. At that time, the provisions of Article I and Article II of the contract were verbatim the same. At that time, the Court had before it, the question of interpreting the language of the contract to determine whether it contained a promise to arbitrate and contracting out grievance or whether or not that was one of the matters not covered in this agreement, and in that litigation, the Court adjudicated the meaning of this contract language. It adjudicated the fact that this language did not contain, did not mean a promise to arbitrate a contracting out grievance. Now, as Mr. Feller has said, five months after that decision adjudicating the meaning of this language, the parties entered into a new contract using the identical language, the meaning of which had been adjudicated between them. Now, it would seem inconceivable that when the parties put their names to that language, defining and limiting the obligation to arbitrate, it would seem inconceivable that they did not mean by that language the meaning which the Court had just adjudicated between them, that language to have. Now, for this reason -- these reasons, the Court concluded that contracting out was not a matter which was covered by this agreement. The contract expressly says that each party shall have the right to refuse to arbitrate such -- any such matter. We did refused and therefore the Court held that we did not have to. Now, this does not mean that the Court of Appeals got into the merits of the grievance.
Hugo L. Black: May I ask you. I understood you say that the contract expressly states that the parties agreed that they would not submit their arbitration with respect to the contracting out.
Frederic D. Anderson: No. It does not -- the words contracting out are nowhere used in the contract. There is no direct reference in the contract to contracting out. But in part (d) of Article II, Section 10 at the bottom of page 12 --
Hugo L. Black: I'm familiar with that but where do you find that that said they will not submit questions of contracting out to arbitrator.
Frederic D. Anderson: I find that it says that in this way. It says that they will submit to arbitration only matters relating to rates of pay, hours of employment, and other conditions of employment which are not covered in this agreement, and that they need not arbitrate any such matters. Now, this leaves the Court with the question of discovering whether contracting out is one of the rates of pay, hours of employment or other conditions of employment which is covered by this agreement.
Hugo L. Black: Does that -- does that answer the argument which I understood Mr. Feller made and I thought he did, and I just looked to the brief to this effect that the question of arbitration -- the question of the meaning of the contract is agreed to be submitted to arbitration. And as I understand it, he said that if the Court decides that question, then it has defeated that provision of the contract.
Frederic D. Anderson: Well, I think Mr. Feller made that argument and made that orally here, that I believe is contrary to the decisions of this Court for example in John Wiley & Sons against Livingston, Drake Bakeries and all of the others, in all of those cases, this Court has said that there is a question of interpreting the contract which is for the Court and not the arbitrator.
Hugo L. Black: Do you mean that cannot be agreed in a way? Do you not have to say that in order to meet this argument?
Frederic D. Anderson: Oh! Oh, undoubtedly, the -- I do not find there's -- there's no decision of this Court which says that the parties could not agree that the question of arbitrability rest before an arbitrator.
Hugo L. Black: Question of meaning could not be submitted to the arbitrator?
Frederic D. Anderson: Oh! The parties could agree to that and they could agree to it in terms which would leave to an arbitrator and not to the Court the question of arbitrability.
Hugo L. Black: What if they had agreed to that?
Frederic D. Anderson: If they had agreed to that, then you would have -- we would have to argue -- arbitrate the question of arbitrability
Hugo L. Black: You agree to that.
Frederic D. Anderson: Yes, Mr. Justice.
Hugo L. Black: So you get back to the question of whether they agree to it.
Frederic D. Anderson: Exactly and that is the question which this Court has said was for the Court, namely, looking at that language of the contract and interpreting it to see whether or not it contains a promise by the arbitrator to arbitrate this kind of a matter. Now, in Wiley, in --
Hugo L. Black: You are not -- you are not challenging in any way the right of the party to make such an agreement if they did, had made it?
Frederic D. Anderson: I am not. They could agree that arbitrability was for an arbitrator. Now, if -- if they --
Hugo L. Black: That doesn't quite -- they could agree, you said?
Frederic D. Anderson: They could agree --
Hugo L. Black: That they could submit the meaning of this to the arbitrator at all times and all circumstances which would make it impossible for the Court or any court to make that agreement, have anything left to pass on, wouldn't it?
Frederic D. Anderson: Oh! The Court would have one thing left to pass on. The Court would still have to pass on the question of whether the contract did contain the agreement to which you have just referred namely, if the employer said in such litigation, “Oh no! This contract does not mean that we have agreed to leave to an arbitrator the question of interpreting the arbitration clause” --
Hugo L. Black: But then --
Frederic D. Anderson: -- then plainly --
Hugo L. Black: -- doesn't he disagree with you on that, does he?
Frederic D. Anderson: I think he disagrees with me on that.
Hugo L. Black: I thought he did.
Frederic D. Anderson: Yes, I think he disagreed.
Hugo L. Black: I thought that was your real issue, the main issue, before you get to -- with the contract and its meaning.
Frederic D. Anderson: Except that if you stated that that is the issue, you never get to really -- first of all, this contract does not expressly say that. Secondly, this contract --
Hugo L. Black: Well, it doesn't have to -- it doesn't have to say it expressly, does it?
Frederic D. Anderson: It does not. The inter -- the interpretation of the promise to arbitrate is like the interpretation of any other provision of contract to be arrived at by the same meanings. But this contract at the bottom of page 12 makes it very clear that there are some matters which the parties may refuse to arbitrate that it does say expressly in so many words. Now, if there are some matters which the parties may refuse to --
Hugo L. Black: But those matters are not in issue here, are they? The question at issue as I understand it is whether the one he holds, whether there's an agreement on that side of his argument, whether there's agreement, meaning would always be submitted to the arbitrator which demands in effect to saying there's nothing left for the Court to pass on as far as that's concerned. They can't file a lawsuit on that.
Frederic D. Anderson: In order to answer that question, the Court has to interpret Section 10 of the collective bargaining agreement for either the provision to which Mr. Feller referred is in this agreement or it is not. Now, surely this Court in dealing with language which is --
Hugo L. Black: I didn't -- I understood him to rely mainly on what the Court had said heretofore, not on what is in the contract.
Frederic D. Anderson: Yes, but what --
Hugo L. Black: That's how you can construe it.
Frederic D. Anderson: Yes. Perhaps, I think Mr. Feller and I disagree about what the Court has said heretofore. Mr. Feller thinks the Court has said heretofore, if I do not misquote him, that if the union contends there's a violation of the contract, they merely have to contend that and they're entitled to get to an arbitrator. And we understand the Court to have said before that the Court must first determine whether there is a promise to arbitrate such a contention and in doing so, it must look at the whole contract but particularly in those parts of the contract which do expressly limit the promise to arbitrate this contract. And therefore, the words of this contract are important. That is what the court below was directed to interpret, by the prior decisions of this Court. And this Court, this contract is just full of an atmosphere of intending to limit the things which are for arbitration. The parties devoted a page and a half of the transcript which means more than a page and a half of the contract to that very subject and therefore, plainly -- they have said this plainly as human language will permit.
Hugo L. Black: Well then, may I -- may say, maybe I don't quite understand you. What you're saying is they just filled with things that they don't have to arbitrate. The question is whether its -- whether that scope of things with which it fills includes the question of the meaning of contract, isn't it?
Frederic D. Anderson: Yes, I think that's right. Now, I would point this and I think this is clear. Parts (a), (b), (c), and (d) of Section 10 on pages 11 and 12 of the transcript are to a degree independent parts, that is part (d) stands by itself. The beginning of Section 10 says we are limiting the scope of Section 9. Part (a) says the questions may be referred shall be limited too but it doesn't go on and say and if you can get within one of these limits you're entitled to arbitrate because you still have the hurdle of part (d) to get over and part (d) is an additional limitation upon the scope of arbitration and the power of the arbitrator here. Part (d) approaches it from another side and says there are certain matters as to which either party shall have the right to refuse to arbitrate. Now, it is to be noted here that the union in this case is not seeking to compel us to arbitrate the question of arbitratability before an arbitrator. The union here seeking -- the union here is seeking to --
Hugo L. Black: Do you agree that they could do that and the contract would be valid?
Frederic D. Anderson: If the union can bring an action to compel arbitrability, to compel you to arbitrate arbitrability before an arbitrator, a union can do that. I can imagine a contract which would permit them to prevail in such a lawsuit but this is not such a contract because this contract does not say that.
Byron R. White: Do you gather that -- you said the contract had said the -- you will arbitrate all matters of interpretation -- application or interpretation of the contract, period, without all the language you've got in this Section here, would you -- would you say that the standard arbitration clause would leave us a situation where the union could get the arbitrator on the question of arbitrability?
Frederic D. Anderson: Well, no. First, let me say, I think that is not a standard arbitration clause by itself. It is true that most, but far from all, collective bargaining agreements contain language like that but almost without exception. They have some limiting language on top of that. Now secondly, I would say that if the contract said that and no more, it would still be for the Court and not the arbitrator to determine the question of arbitrability. Now, the Court's decision in anything like that is foregone. But the Court would not refer to the arbitrator the question of arbitrability. It would order the parties to arbitrate the grievance itself. This is what happened in American Manufacturing. Now, I was saying that this Court in this case did not get to the merits. It did not purport to deal with the merits. To get to the merits would necessarily have involved determining not merely that the subject matter of contracting out was a matter covered by this agreement but it would also necessarily involve determining how it was covered. In other words, was contracting out permitted, forbidden? Permitted under some circumstances which have been satisfied in the facts of this grievance? Forbidden under some circumstances which fitted the facts of this grievance? That would be getting into the merits. That would deciding whether the grievance had merit or not. What the Court here did and properly did was not to look at that at all but solely to look to see whether the subject of contracting out was a matter which was not covered in this agreement. Now, I have a -- we have this other issue of collateral estoppel. Obviously, if we are successful on the first issue, the issue of collateral estoppel becomes moot. But let me say this about the issue of collateral estoppel. The courts have found its boundaries to very very much depending upon the nature of the issue before it. In the Sunnen case which was the petitioner's chief reliance in this matter.
Earl Warren: Finish your statement on that, mister, just briefly.
Frederic D. Anderson: With the union's chief reliance in this matter, the thing which had been adjudicated in the first case was the meaning of a tax statute. And the Court essentially said that you cannot have a taxpayer who has a perpetual right to pay taxes differently than other people because he has been once successful in what has proven to be an erroneous interpretation of the tax statute. That is one end of the collateral estoppel spectrum. Collective bargaining agreements surely are at the other end. There is, or should be, a national policy to minimize and avoid litigation over collective bargaining agreements. Now, if the parties once litigate the meaning of particular language in a collective bargaining agreement and the meaning of that language is settled, that ought permanently to be settled between them. They shouldn't be able to harass each other and take up the Court's time with litigation and re-litigation of it for the contract is going to expire after a brief interval and the parties are going to have a full opportunity to change that language if they intend a different meaning. Now, keeping unions and companies out of court is a primary reason why it is that collateral estoppel which should be applied and is applied on so restricted basis in tax cases should be applied in a very liberal basis, on collective bargaining agreements. We think the cases in our brief show that it is applied liberally on contract interpretation questions generally, a fortiori should be so on collective bargaining agreements.
Byron R. White: And the -- Mr. Anderson, is the -- is the cause really at part two of the complaint here, I guess the Court of Appeals ordered the District Court to enter judgment on both counts, didn't it?
Frederic D. Anderson: I think it did. What happened --
Byron R. White: What was -- actually, the summary judgment of the District Court is related to one count, isn't it?
Frederic D. Anderson: Well --
Byron R. White: Or with the one clause --
Frederic D. Anderson: -- yes, it did. What happened there was.
Byron R. White: But why would the Court of Appeals go to both clauses?
Frederic D. Anderson: The decision of the Court of Appeals makes it plain for it says so in so many words in the footnote, that only count one was before it. It spelled that out and it said that the case had been briefed and argued solely on count one. And it so decided. Now, why its order was in broader terms, I do not know.
Byron R. White: Well, is that order -- that -- that order -- the entire order is here though, isn't it?
Frederic D. Anderson: The entire order is here. But if the Court of Appeals were reversed as to count two, and that therefore summary judgment was not issued for the defendant on count two, presumably the record on count two would revert back to its proper situation which was that count two was dismissed by the District Court and no appeal was taken with respect to that dismissal. The trouble with the Court of Appeals are on in that respect is that it entered an order with respect to a matter which wasn't before it and presumably that order is void and that the count two remains as dead as it was when it was heard by the District Court.
Byron R. White: Well, let me -- let me ask you. Let's assume a union comes to the Court and says, “We want arbitration and we claim there's a violation of contract namely clause X from the contract.” And the company says, “Well, clause X doesn't relate to this thing at all”. But you can read it. The Court said, “Well, I don't know. It's pretty close. It may not be. What should I do? Do I interpret this clause or not?” Do -- is that what the Court's supposed to do and go right ahead and interpret that clause to see if it is -- it is -- I mean it has to go on. If it has to find out whether their action was about -- what they refer as a bona fide claim as a violation, it must go on and interpret that clause of the contract.
Frederic D. Anderson: Oh! I think not. Now, first of all --
Byron R. White: Well, why not?
Frederic D. Anderson: In your case -- your case as stated leaves out the terms of the promise to arbitrate and those are vital because that is what the Court must --
Byron R. White: Well, let's put it --
Frederic D. Anderson: -- interpret. If we had, these --
Byron R. White: -- let's put in the words that are used here. The promise is to -- to arbitrate a claim, a violation of the terms of its agreement, of the terms of its agreement.
Frederic D. Anderson: Yes.
Byron R. White: And the union comes in and said that, “The company has violated clause X, a term in this agreement, and we want it arbitrated”. And the company says, “That clause relates -- has no connection whatsoever with the subject matter, to this grievance” and the Court says, “Well, you may claim it. But what it looks pretty close to me, pretty close to me. Now, do I have to get into the -- into the -- going to the whole history of this agreement and find out what the parties intended in this -- in this term of the agreement or not?” Now, if he -- I gather -- I gather in your argument, we have to do that in order determine arbitrability.
Frederic D. Anderson: Oh! Not at all. Well, the Court does under this arbitration clause, have to determine if it in dispute, whether the thing to be arbitrated is a matter covered or not covered in the agreement.
Byron R. White: Well then --
Frederic D. Anderson: -- not which way it's covered, but whether it's covered.
Byron R. White: That's exactly what I'm saying. The Court has to decide then when the union said, “They violated clause X”. And your claim is that we have -- the Court has to decide whether clause X covers the subject matter of this agreement.
Frederic D. Anderson: And that --
Byron R. White: And it's meaning.
Frederic D. Anderson: Yes, and that's only because the parties so agreed in part (d). Now, it is notable that in our case at bar, the union did not --
Byron R. White: But this involved -- this certainly involved the interpretation of a term in the agreement and the reason you say it's for the Court is because you say the arbitration clause necessarily projects the Court in the business of interpreting the clauses of the contract other than arbitration clause.
Frederic D. Anderson: That is right and this is --
Byron R. White: Or, really is -- are you saying that the Court really decides the grievance too then?
Frederic D. Anderson: Oh! Not at all, because the Court --
Byron R. White: Well, even if the Court said -- the Court said that the term doesn't relate to it, the grievance is over.
Frederic D. Anderson: No sir. It might be for example that the contract would contain a clause which would say the company shall have full right to contract out any work. The union might file a grievance claiming that that clause was violated because the company did contract out work. Now, the union would be patently wrong but still, what the Court should do under the plain language of part (d) is to look at that clause, see that contracting out is a matter covered by this agreement and should order the parties to arbitrate. The arbitrator would then look to see whether the contract forbade contracting out of work, and it would find that it not only did not, but that it expressly permitted it. He therefore would decide the grievance for the company.
Earl Warren: Mr. Feller, you may have an additional five minutes for rebuttal.
David E. Feller: Thank you Your Honor. I'd like to -- I think the collateral estoppel point here is helpful in a way in putting this thing on the track. Mr. Anderson says, the question is whether there was a promise to arbitrate a contracting out grievance. The question is whether questions of contracting out can be arbitrated. The reason we get into this problem as to what's here is that too many people have talked in those terms. And I'll make it clear, I'm not here arguing that a contracting out grievance is arbitrable. I don't know what a contracting out grievance is. I suppose that the subject matter of the grievance is contracting out. I'm arguing here that a grievance which claims that the company has violated the agreement when it contracted out is arbitrable. And that's a different question.
Hugo L. Black: Would you mind telling me which part of the Act you specifically rely on -- the contract to specifically rely on, on there --
David E. Feller: The -- well, I have relied on the contract for the -- for the arbitrability, Section 10 (a) (1) which says that --
William J. Brennan, Jr.: Where is that?
David E. Feller: Well, we go back -- now, I take it Mr. Justice Black you're asking me what Section we rely on to say that the grievance is arbitrable, not what Section we rely on to say that the company violated the agreement.
Hugo L. Black: The termination of the meaning of the contract is arbitrated.
David E. Feller: That is correct. And that we rely on Section 10 (a) (1) which is on page 11 of the record, near the bottom of the page, “Questions directly involving or arising from applications, interpretations, or alleged violations of the terms of this agreement”.
Speaker: Alleged violations?
David E. Feller: That's right. In this case, we allege a violation of the agreement. And in almost haec verba, this question is then arbitrable. Now, you could have a contracting out grievance and indeed I have seen many of them in many contracts including this one in which you can process grievances not alleging violations of agreement up to arbitration and we say, it is unfair of the company to contract out this work when there are people on layoff. And that -- and you negotiate on that. You'll handle that to the process. Sometimes the company agrees that it is unfair for them to do it and they agree that they won't do it again or they'll kick the contract, they're off the job, and bring people in. That's a contracting out grievance but that's not an arbitrable grievance because that does not allege a violation of the agreement.
William O. Douglas: But all you have to do to make it arbitrable is to allege.
David E. Feller: That's right but then when we get to the arbitrator --
William O. Douglas: Can you think of anything then that it wouldn't be arbitrable?
David E. Feller: Well, I think I've just given something of that. But when we get to the arbitrator and I think this is a great error in a lot of the thinking in this area that the arbitrator just kind of floats in the air and decides whether the grievance is a good one or a bad one. All the arbitrator is going to decide is did the action violate the agreement. That's all he's going to decide. He is not going to decide whether it was fair or unfair, or nice or not nice.
William J. Brennan, Jr.: Then why is it (Inaudible) to go so far as to -- refer the alleged violation to the recognition clause.
David E. Feller: Well, we said that --
William J. Brennan, Jr.: Well, why? Why did you have to do that on your premise?
David E. Feller: Well, I don't know. Whether we got to Court, we have to do it. When we got to the arbitrator, we have to do it. And every time I've arbitrated a grievance, before I go to the arbitrator, he says, “In what provision of the contract do you claim is violated?”
William J. Brennan, Jr.: Well, I know. But for this purpose you'd be making the same argument if you limited the whole thing to what's in (a) (1) of Section 10 namely, you come in and said, “This effort to contract out, we allege violates the terms of the agreement”, period.
David E. Feller: That's right.
William J. Brennan, Jr.: And you don't have to identify any terms of the agreement.
David E. Feller: I don't think I do unless there's some question of good faith involved.
Byron R. White: Even if, Mr. Feller, if --
David E. Feller: Indeed --
Byron R. White: If the contract said in another provision, not in the arbitration clause, it said the company and the union agree that the company is perfectly free to contract out, period.
David E. Feller: That's right.
Byron R. White: And then the arbitration clause says -- we will -- we will arbitrate all kinds of violations. The company contracts out, you come in and say -- say the company had violated the agreement.
David E. Feller: That's correct.
Byron R. White: Nevertheless, it goes to the arbitrator.
David E. Feller: That's correct. Because I might argue that means contract out in the normal, usual way they did but this time, they did something --
William J. Brennan, Jr.: Well, that --
David E. Feller: -- different which wasn't meant by that.
William J. Brennan, Jr.: Well, that means --
David E. Feller: That's for the arbitrator to decide.
William J. Brennan, Jr.: Well, let me ask you another question Mr. Feller. This is really a decision for this face of this contract alone, isn't it?
David E. Feller: I take it that every case is a case for that interpretation. Though these -- this language, my brother Anderson, is almost exactly the same as the language in American Manufacturing which --
William J. Brennan, Jr.: Well, and -- whether it is not, in any event, your whole argument is predicated on this specific provision, (a) (1) that they are arbitrable “alleged violations in terms of this agreement”, period.
David E. Feller: Also alleged violations of past practice.
William J. Brennan, Jr.: Well --
David E. Feller: -- which we get over to three, which are two claims.
William J. Brennan, Jr.: Yes, but that -- the other point I was trying to get to is however we decide this, the next contract doesn't have that language (Inaudible).
David E. Feller: Well --
William J. Brennan, Jr.: I mean, we're not going to answer it? But --
David E. Feller: I think that's correct.
Byron R. White: I thought awhile ago you said that you -- that you thought that even if this -- even if this, if Clause I didn't have that alleged violation, you would come up the same way (Voice Overlap) --
David E. Feller: Well, I think if it said application and interpretation, those words are usually used together to --
Byron R. White: Absolutely.
David E. Feller: -- cover the --
Byron R. White: You would have the same principle involved, wouldn't you?
David E. Feller: That's correct. The basic principle I think is that the Court can respect the party's intention that this question be decided by an arbitrator and -- but when we get to arbitration we don't arbitrate in general, we don't arbitrate -- and that's the problem with the collateral estoppel issue and the whole decision below.
Speaker: Do you allege (Inaudible) of the arbitrator and say, “Well, as I find that this agreement does not require arbitration”, therefore I don't get to the merits of anything.
David E. Feller: I don't think so.
Speaker: Why not?
David E. Feller: I think the --
Speaker: Why not?
David E. Feller: -- the question is -- the question -- he could phrase it, but sometimes arbitrators do. What he would say is, well, it's here. This -- the question of whether this agreement restricts the management from contracting out is before me and I find that there is no such restriction and therefore, the grievance must be denied even though I think -- may think it's unfair, though I hope arbitrators don't do that.
Speaker: I thought your whole position were, your basic position was that the broad language of the arbitration provision submitted to arbitration the question of whether a particular dispute was arbitrable or not.
David E. Feller: No, Your Honor. That --
Speaker: You don't --
David E. Feller: -- is not my position and it's not as I understand the decision of this Court, Mr. Justice Douglas' opinion in Warrior & Gulf and American Manufacturing, I think it is absolutely crystal clear in that.
Speaker: Well, Warrior & Gulf certainly didn't say that there was an expressed provision that that particular matter was not to be arbitrable. I mean, notwithstanding that the -- not withstanding that and it -- it should be arbitrable if the --Oh no.
David E. Feller: It said the Court should determine the question of whether -- if the kind of question presented and I keep coming back to that is one which the parties have agreed should be arbitrated, and that is for the Court to discern. And in some cases, there are a number of recent circuit court decisions of which there is a history which the parties agreed that say, discharge cases should not be arbitrated. Then that's up to the Court to interpret that arbitration clause. When it gets to the arbitrator, his question is did the company in this case violate the agreement or not. Or in the other branch of the case, did this company violate past practice or not.
William J. Brennan, Jr.: Do you -- do you consider (Inaudible) has bearing on what the arbitrator must decide, namely these exclusions totally go to whether indeed there was a violation by company (Voice Overlap) --
David E. Feller: Well, I think when -- when there's -- that's correct. When you get 10 (d), where it says it shall not have the right to refuse to arbitrate --
William J. Brennan, Jr.: Yes.
David E. Feller: -- if the arbitrator says or if the parties agreed that this matter is not covered by the agreement, in most cases they can agree. There are no questions -- there are no provision in this agreement about subject X, Y or Z or there is no provision here and this is really as to fairness or unfairness or wage rates, prior to the limitation that was put in here on 1952, these parties used to arbitrate wage rates. What should be the rate on this particular job? Now, I take it under (d) it says we don't arbitrate that. You don't claim that the wage rate violates the agreement. You wouldn't say, well --
William J. Brennan, Jr.: Now, wait a minute.
David E. Feller: “We think that the machinist ought to be paid more”.
William J. Brennan, Jr.: Mr. Feller, I just want to get your position as to 10 (d). If you're going to give (a) (1) the scope you -- you do get in, then what is there in (d) on your premise except as governing what the arbitrator may finally decide as to the arbitrability of this particular grievance?
David E. Feller: No, I think what (d) -- my view is that (d) is the exact counterpart of (a) (1), (2), and (3) and the substance of it is that you have the right to strike over claims other than claims of violation of the agreement which relate to wages, hours --
Byron R. White: Does this means --
David E. Feller: -- and working conditions.
Byron R. White: Does this means that (Inaudible) only to the union. The union comes in and uses some form of words, it comes in, in one arbitration and uses the right form of words, that's the end of the matter.
David E. Feller: As far as the Court is concerned --
Byron R. White: You're in -- you're in control of whether you -- whether you strike under (d) or whether you make words, whether you would make these arbitrable.
David E. Feller: Oh no. Sometimes the companies have gone the other way. There is a case in the record, a New Jersey shop man's case in which they reversed that, they struck and the company went in said, “No, that strike is in violation of the agreement because it's subject to the agreement”.
Byron R. White: Yes. Well, of course it accomplished both ways. But assume that the -- if the union comes in and uses that form of words and you say it's arbitrable, period, that's the end of it.
David E. Feller: Well -- well, but that's more than the form of words because it's the form of words which governs what the arbitrator will decide.
Byron R. White: I agree, but as long as you will say that a claim that -- that it's a violation of the agreement, that's all the Court should look to.
David E. Feller: That's correct. And indeed, we cannot strike over a claim of violation of the agreement.
William J. Brennan, Jr.: When you say that's all the Court can look to and I suggest again Mr. Feller, your position must be that 10 is relevant only to what the arbitrator does, not the what (d) is relevant only to what the arbitrator does and not know what (d) is?
David E. Feller: Well, I think it part -- I think it partakes to both, but the problem is that --
William J. Brennan, Jr.: Well, what -- what I --
David E. Feller: -- that it says, each party shall have the right to refuse to arbitrate any such matter.
William J. Brennan, Jr.: I know but on -- when you walked in and you asked the Court to order arbitration on the basis of the alleged violation of the agreement, you are saying that the Court can't look at 10 (d), aren't you?
David E. Feller: Yes.
William J. Brennan, Jr.: Alright.
David E. Feller: Yes.
William J. Brennan, Jr.: Then, if it has any significance for anybody in connection with the grievance, it may have only for the arbitrator (Voice Overlap) --
David E. Feller: That is correct. And it has -- though it has an additional significance that if this union went out on strike, claiming that contracting out was unfair, (d) would be insulated from liability for violation of the no-strike clause.
Hugo L. Black: Mr. Feller, may I ask you on the -- regarding the contract. Is the contract which was in prior case and which is in this case identical?
David E. Feller: Insofar as relevant here, there are no change in the words in the successive contracts. And I -- we have abandoned in our reply brief the argument which we made in our original brief that the doctrine of collateral estoppel should not apply to successive agreements because on reading the company's brief, we were persuaded that this was bad labor law and bad labor policy. That a view that regarded successive contracts as a continuation of the same obligation, the same statute governing industrial community with a far preferable one and we would not like to win the collateral estoppel point on that issue, on that point. We think we do win -- win it on the other two points and we clearly win it on the claim which we've been discussing here a violation of the agreement because that wasn't even involved in the other case.
Hugo L. Black: Is it true that it's stated in the other opinion that the union had been trying to get this particular clause in with reference to contracting out and have not been able to get it?
David E. Feller: It is true in this case as it was in Warrior & Gulf, that the company -- that the union has, in here, attempted for years to get a flat ban on all contracting out into the agreement and has been unsuccessful in doing so. But this does not mean that some contracting out under some circumstances may not violate other provisions of the agreement. Contraction out can be from casual little thing, or little things or contracting out a whole issue. The union would like to have a provision saying no contracting out of any work at any time. But we've been unable to get that provision.
Hugo L. Black: Is it -- is it announced directly, pragmatically speaking, substantially, what they decided before was against it although it didn't decide it on the same -- they didn't refer to the reasons you are now giving where they can decide it differently?
David E. Feller: You mean in the first decision of the Court of Appeals?
Hugo L. Black: In the first decision in 1960.
David E. Feller: Well, the only issue before the Court of Appeals in 1960 was the claim of the union that the contracting out of cement finishing work violated past practice not the -- there was no allegation in the complaint in that case, no request for arbitration --
Hugo L. Black: You mean the (Voice Overlap) --
David E. Feller: -- of the violation of the agreement.
Hugo L. Black: I thought they held it was not arbitrable.
David E. Feller: They held that the claim -- that the company violated past practice was not arbitrable.
Hugo L. Black: That's a pretty fine distinction, isn't it?
David E. Feller: Well, it's the essential distinction to my whole approach to the case and that is you don't argue -- arbitrate subject matter or facts. You arbitrate an issue and the issue in the other case was the claim the company violated past practice. No claim that it violated the agreement. In this case, we have both issues. Thank you Your Honor.