The F & M Schaefer Brewing Co. v. Local 49, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America , 420 F.2d 854 ( 1970 )

FEINBERG, Circuit Judge:

This is an appeal from an order of the United States District Court for the Southern District of New York, Harold R. Tyler, Jr., J., staying arbitration of a grievance brought by Local 49, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America (the Union), under a collective bargaining agreement with the F & M Schaefer Brewing Co. (the Company) . The litigation began in the state courts when the Company sought to enjoin an arbitration proceeding instituted by the Union. The Union removed the action to the federal court and filed answering papers which sought to compel arbitration. Both parties moved for summary judgment on the basis of affidavits and exhibits. Thereafter, Judge Tyler granted the Company’s motion and stayed the arbitration; the Union’s cross-motion was denied. On the Union’s appeal, we hold that it w.as error to stay the arbitration.

The collective bargaining agreement, which runs from May 1, 1968 to April 30, 1971, covers drivers and helpers employed by the Company to distribute beer from the Company’s depot in Syracuse, New York. The controversy that led to this litigation arose in April 1969. Prior to that time, deliveries of beer to the Company’s customers in the Utica-Rome area of New York State had apparently been handled through a local distributor. In April, the Company began to use its own employees, which were represented by the Union, to make the deliveries formerly handled by the independent distributor. Shortly thereafter, the Union filed a grievance as follows:

Want to be paid a fair and just wage for traveling time on new route’s (sic) started April 10, 1969 which take in the cities of Utica and Rome and surrounding territories.

According to the slim record before us, the Union then submitted to the New York State Board of Mediation for arbitration the questions of “proper method of compensation and constitution of the runs.” In May, the Company brought its action to stay the arbitration.

The contract provides procedures for “GRIEVANCES AND ARBITRATION” in Section 21, which provides in subsection (b):

Other grievances, disputes, or differences relating to the interpretation or application of this agreement shall be taken up in the first instance by the appropriate Union agent and the Employer’s representatives.

If a mutually satisfactory adjustment is not arrived at by them within five (5) days, unless extended by mutual agreement, the matter shall be submitted for arbitration by an arbitrator designated by the New York State Board of Mediation, and the award of such arbitrator shall be final and binding on both sides.

The Company’s position — argued successfully before Judge Tyler — is that the grievance does not relate to “the interpretation or application” of any section of the agreement and is therefore not arbitrable. The Union retorts that this is not so and refers to various sections of the contract upon which it relies.

The teaching of the cases is plain. We are instructed in United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S. Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960):

An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.

Indeed, in United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L. Ed.2d 1403 (1960), we are told:

The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious. The processing of even frivolous claims may have therapeutic values of which those who are not a part of the plant environment may be quite unaware. [Emphasis added; footnotes omitted.]

We turn from the applicable law to the specific grievance here involved. The Union’s basic claim is that the Company cannot apply the contract rates to work that is radically different (here presumably a long-distance run) and not in existence when the contract was negotiated. The Company argues that the agreement provides no geographical limit on the deliveries to which the contract rates apply. The Union’s position may not be a strong one but its claim is certainly not unusual; disputes over alleged changes in job content or creation of new jobs are common.¹ The Union’s grievance here is a dispute about “application” of the agreement's pay rates to “new” work. Accordingly, it falls squarely within the terms of the arbitration provisions. Whether the Union’s position on the merits is weak or strong is irrelevant; that is to be determined by the arbitrator. While we have recognized that a grievance may be so outrageous as to pervert the grievance procedure, see International Union of Electrical Workers v. General Electric Co., 407 F.2d 253, 259 n. 12 (2d Cir. 1968), cert. denied, 395 U.S. 904, 89 S.Ct. 1742, 23 L.Ed.2d 217 (1969), this case is far short of that.

The district judge was evidently led astray by the phrasing of the initial grievance — “[w]ant to be paid a fair and just wage * * The judge held that since the arbitrator is not given the power to fix new rates, “submission of this grievance to him would require him to exceed his powers.” However, as the Union points out in this court, the primary issue before the arbitrator will be whether the existing rates do apply to the “new” work. If they do not, it does not automatically follow that the arbitrator will try to fix new ones, and we, of course, express no opinion on that. For example, the arbitrator may hold that the men may properly refuse to do the work until the parties agree on a new rate.² However, that would go only to the remedy if the arbitrator agrees with the Union in its basic argument that the contract rates do not apply to the new Rome-Utica run.

The Company relies heavily on our decision in Torrington Co. v. Metal Products Workers, 362 F.2d 677 (2d Cir. 1966) (2-1). However, that ease is not controlling here. In Torrington, we were concerned with the court’s power to set aside an award when, according to the majority, the arbitrator had made clear that he did not rely on provisions of the contract. Indeed, in Torrington, we pointed out that the question of the arbitrator’s authority to make a particular award was best left to the arbitrator initially, so that the court could receive “the benefit of the arbitrator’s interpretative skills as to * * * his contractual authority.” 362 F.2d at 680 n. 6. Here, we are asked to prevent arbitration in the first place. To do so on the theory that we should not require a useless act misconceives the possibilities open to an arbitrator and ignores the explicit lesson of the Trilogy, quoted above, that “[t]he processing of even frivolous claims may have therapeutic values.”

Judgment reversed for proceedings consistent with this opinion.

1 . See, e. g., Schotts Bakery, Inc. v. Teamsters Local 949, 69-1 ARB ¶ 8118 (1968) (increase in duties of drivers); R & J Dick Co. v. Int’l Ass’n of Machinists, 65-2 ARB ¶ 8508 (1965). Such a grievanee may in fact be arbitrable even though the arbitrator is explicitly denied authority to make an award of increased wages, unlike the situation here. See United States Plywood Corp. v. Carpenters Local 1521, 68-1 ARB ¶ 8199 (1968).

2 . See Space Services of Mississippi, Inc. v. Int’l Ass’n of Machinists, 69-1 ARB ¶ 8141 (1968) (envisioning negotiation by union and company as to wage classification of new job).