United Steelworkers of America v. Enterprise Wheel & Car Corporation

PETITIONER:United Steelworkers of America
RESPONDENT:Enterprise Wheel & Car Corporation
LOCATION:Bonneville Dam

DOCKET NO.: 538
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 363 US 593 (1960)
ARGUED: Apr 28, 1960
DECIDED: Jun 20, 1960

Facts of the case

Question

Audio Transcription for Oral Argument – April 28, 1960 in United Steelworkers of America v. Enterprise Wheel & Car Corporation

Earl Warren:

— America, Petitioner, versus Enterprise Wheel & Car Corporation.

Mr. Bredhoff.

Elliot Bredhoff:

Mr. Chief Justice, may it please the Court.

This case is similar to the two cases that were heard yesterday, the American Manufacturing Company case and the Warrior & Gulf case.

In that, this case involves the interpretation of Section 301 of the Labor Management Relations Act and the effect of that section has on the enforcement of arbitration provisions of a collective bargaining agreement.

The difference in this case from the others is that those involved questions of enforcing arbitrability under a contract, under grievance and arbitration provisions of the contract whereas this case involves the enforcement of an award already rendered by an arbitrator pursuant to the provisions of the contract.

The real question, I suppose, boils down to, should the courts review de novo an arbitrator’s award which interprets and applies the provisions of a contract?

The facts or I believe in large part undisputed, the contract in this case was between the Steel Workers Union and the Enterprise Company at Huntington, West Virginia which ran for a period of one year from April 5th, 1956 to April 5th, 1957.

The critical contract clauses that are involved here are Article IV – Suspension and Discharge, which may be found on — in the record, the first part of the record.

The record is in two parts in terms of pagination.

In — in the first part, pages 17 and 18 contained the provisions of Article IV dealing with suspension and discharge.

And it is a typical type of suspension and discharge provision found in collective bargaining agreements.

It provides in summary and for no peremptory discharges.

If an employer wishes to discharge or discipline an employee, he must first invoke a suspension for no more than five days.

He must afford the employee a hearing.

He must present the employee with the statement of the offense and he must make the facts available surrounding the offense at the hearing, which he must afford the employee.

After that hearing, the employer is required to make a determination as to wether to extend or suspend — sustain the discharge — the — the suspension or to convert the suspension into a discharge.

If the suspension is converted into a discharge, then the employee has the right to avail himself of the grievance provisions of the contract which are in Article III, were in Article III of the particular contract before us.

The provisions I’ve just summarized are the rough equivalent in a collective bargaining agreement of the procedural due process which we know at law.

It’s the — the rough equivalent in the industrial government of a — under a collective bargaining agreement of the due process that is to be accorded an employee when he’s — when he is to be suspended or discharged by an employer.

Now, under the suspension and discharge provision, before we look at the grievance and arbitration machinery, there is a important provision which states, and this is on page 18 of the record, the first part of the record, “Should it be determined by the company or by an arbitrator in accordance with the grievance procedure that the employee has been suspended unjustly or discharged in violation of the provisions of this agreement, the company shall reinstate the employee and pay full compensation at the employee’s regular rate of pay for the time lost.”

That is a provision specifying the remedy whenever there is a determination that an employee has been improperly disciplined or discharged by an employer.

It is in a sense unlike most of the other provisions under a collective bargaining agreement where there are no specific remedies stated in the contract, but there are remedies provided through the law of arbitration and through practices and understandings of the parties.

Now, under Article III of that contract which appears on page 16 of the record, there is a provision that any differences which might arise between the company and the union or its members employed by the company as to the meaning and application of the provisions of this agreement require that an earnest effort shall be made to settle such differences immediately.

And then, there are steps set forth as to how those differences are to be resolved, the traditional type of steps at ascending levels of authority between the union and the company.

There’s no dispute here, I take it, if there was an arbitrable issue.

Elliot Bredhoff:

There was at first, Justice Harlan, and —

But not now.

Elliot Bredhoff:

And I’ll advert to that.

There is no dispute in this case at the present time, that’s correct.

Elliot Bredhoff:

Now, in step four of this particular clause of provision, it is provided that in the event the dispute shall not have been satisfactorily settled in accordance with the above, it shall be submitted at the request of either party to a panel of three members including an impartial member.

And the final phraseology in that article, the decision of the umpire shall be final and binding on the parties.

Now, there is also in this contract and this appears on the second part of the record, the pagination on page 7 of the second part of the paginated record.

This is Section 6 of the grievance and arbitration machinery.”

It is understood and agreed that neither party will institute civil suits or illegal proceedings against the other for alleged violation of any of the provisions of this labor contract.

Instead, all disputes will be settled in the manner outlined in this Article III – Adjustment of Grievances.”

This is an unusual clause and a contract, although it is implicit in most collective bargaining agreements that you settle your disputes under the machinery provided in the contract and not take your disputes into the courts or other legal machineries.

There was, we believe a no-strike clause, although it does not appear in the record.

However, there is no dispute between the parties as to the fact that a no-strike clause existed under this contract because the grievance who are involved in this proceeding were actually disciplined for violation or for alleged violation of what must has been a no-strike prohibition.

Now, the particular facts that led to the discharges in this case are summarized succinctly by the arbitrator at pages 19 through 21 of the second part of the record.

There — this — this company in 19 — late 1956 and early 1957 while the contract wasn’t forced, had some 52 to 53 employees.

On January 17th, 1957, some three months before the contract was to expire — four months.

The — a group of employees, a committee went into the presidents’ office to protest a contemplated discharge of an employee named Medley.

The employees felt that Medley should not be disciplined and they consulted the president of the company about that.

The president stated that he would not change his decision but he told them that they could resort to the grievance machinery if they disagreed with his determination.

There was some discussion in the office and the employees returned to the plan.

At about 1 p.m., the employees were congregated in the washroom and the president of the company saw them there, and told them that they would either have to go back to work for ring out and go outside and figure it out.

Ring out of the plant that is and figure out what they were going to do.

The employees then punched out their timecards and walked outside.

The president stated that at that time, he had made no decision to terminate the employment of these men.

Upon leaving the plant, the grievance consulted the staff representative of the union who advised them to return to work, to file a grievance with respect to Medley, the employee whose suspension they were protesting and to follow the contract procedures.

They went back to the plant some 30 to 35 minutes after they had initially walked out.

They asked the president of the company whether they — whether they would be able to come back to work and the president said that they could not come back with Medley.

They then asked, “How about if we keep Medley out, can the rest of us come back in the morning?”

And the president said yes, they could.

They could come back the following morning.

However, five minutes later, the president calls his attorney.

The president of the company called his attorney and the attorney advised him that he was under no obligation to take these employees back.

The — the attorney told them that they had quit their employment and they need not — and that the company need not restore them to employment despite what the president had told them just five minutes previously.

The following day, the employees did report for work.

Elliot Bredhoff:

However, they’re timecards were out of the rack and they were told that they did not have employment anymore with that company.

The employees then filed a grievance on January 23rd, some five days after they were refused reemployment and they protested their discharge, which they alleged was without good cause and they also alleged that it was defective procedurally, meaning, that the suspension and discharge procedures specified in the agreement had not been complied with because they were not handed a five-day suspension.

They were not given a hearing.

They were not given a statement of the offense and all the facts surrounding the offense.

They requested reinstatement and all lost pay.

The specific remedy provided in the contrary.

They did not request damages in the sense that damages are known under commercial contracts for breaches of contract.

The company refused to process the grievance in the manner specified in Article III of the contract.

They did hold some discussions after a period of some weeks outside the grievance machinery with some of the union representatives and eventually, it was agreed that the first three steps of the grievance procedure had been complied with, either waived or actually fulfilled.

The union — then on February 17th, some one month after the discharge, requested that the matter be submitted to arbitration in accordance with step four.

The company refused to arbitrate.

The company took the position still that the employees had quit, they were not re-employable and there was no arbitrable grievance.

However, after a considerable period of further discussions between the union and the company officials, the company did agree to submit this matter to arbitration before Arbitrator Milton Schmidt.

Still later however, after having agreed to submit the matter to arbitration, the company reneged on that agreement and they refused to submit the matter to arbitration.

Now, in the meantime, the contract was coming to a conclusion.

The April 4th or April 5th date 1957 was approaching and negotiations were taking place for a new contract.

The record discloses that the terms of a new contract were actually agreed upon.

Some wage increases were to be provided for under a new two-year contract.

The only thing that prevented the execution of a new contract was the company’s insistence that the union withdraw the grievance regarding the 11 employees who had been discharged from the arbitration process.

The company said they would sign a contract so long as the union insisted on processing the — the grievance through the arbitration process under the expired contrary.

Are the terms of the new contract in the record?

Elliot Bredhoff:

I — I’m going to come to that, Your Honor.

The — there was no new contract actually entered into in written form because of the company’s insistence on this condition, the — the union advised the company that it could not possibly waive the rights of the 11 employees involved, that was 20% of the workforce and they instead went on strike.

After some time, the employees became hard pressed.

They consulted their union representative and indicated they would like to go back to work if they could arrange to go back to work under the old — under the — the terms that had been tentatively agreed upon.

The employees were advised by the union representative that they could consult with the president of the company, which they did, and they made arrangements to go back to work.

There is some dispute as to precisely what those arrangements were.

The employees and the union contend that they went back to work under the terms that had been previously agreed upon and without any waiver of the — the grievance they’ve submitted to arbitration.

The company claims that it made no deal with the union.

However, the company president did say we never a — this is on page 36 of the second portion of the record.”We never agreed on what was in the negotiations.

Elliot Bredhoff:

The agreement was made with the men.

They were outside the fence.

We made the agreement between them without the union being there.

So it appears that there was an agreement by which the employees returned to work.

It was never reduced to writing and it — it seems that there was at least a de facto arrangement governing their relationship after they returned to work.

Now, after the union found that it could not submit the matter to arbitration because of the company’s refusal, the union instituted a suit in the Federal District Court under Section 301, requesting specific performance of Article III of the agreement, the grievance and arbitration procedure of the agreement.

The company answered and the union moved for summary judgement.

The matter was heard on the pleadings and affidavits.

The Court granted the union’s motion for summary judgement and in an oral opinion, the Court indicated that the union was not seeking damages.

The union was simply seeking enforcement of the provision of the agreement which required that all differences as to interpretation and application of the contract be resolved in the final stage by arbitration and by final and binding arbitration.

The Court rejected a company argument that the matter had become moot because of the intervening expiration of the contract.

The Court said that relying on Lincoln Mills in large part that these were rights that accrued under an old contract, rights that vested under an old contract and they must continue to be processed under the machinery provided for under that old contract.

The District Court issued an order compelling submission to arbitration.

Now, the arbitration took place, there was no appeal incidentally by the company.

The arbitration took place before Arbitrator Milton Schmidt.

And if I, maybe permitted and decide about Mr. Schmidt, there were several names of waiting arbitrators mentioned here yesterday and I would like to add Mr. Schmidt’s name to that list.

He is a distinguished arbitrator in Cincinnati.

He is the arbitrator, the permanent arbitrator under one of our largest contracts between the Steelworkers Union and the Continental Can Company.

He has been an arbitrator for perhaps 15 to 20 years under other steel and other industry contracts and has a very fine reputation in the arbitration fraternities.

Felix Frankfurter:

Well, I hope I’m mentioning some, we don’t need to exclude others.

Elliot Bredhoff:

I — I certainly hope not, Justice Frankfurter.

The arbitration hearing place on January 3rd, 1958 and before the arbitrator, the company contended that the employees had quit there jobs, that the discharges in any event, if it were to be a discharge were justified by the employee’s participation in the em — unlawful strike and that the case was moot because the contract had expired.

The arbitrator, Arbitrator Schmidt, issued his award on April 10th, 1958.

He held that the employees had not quit but were in fact discharged.

He also held that the — although that — that — although the employees may have committed an infraction by walking out for the half hour that they did walk out from the plant.

That type of infraction did not merit discharge but utmost a 10-day suspension.

He also found the company had failed to — to abide by the suspension and discharge provisions.

The procedural due process protections under the contract and he rejected the mootness agreement, specifically, he said that the controversy as to the employees right to reinstatement and that case is a continuing one.

Article IV of the contract, he held, impose an unconditional obligation on the company to reinstate the employees with the back pay saved, the 10-day suspension period that he held proper and he also excluded from the back pay any — any earnings that the employees may have had at — in other employments during the period they were not working for the company.

After the award was issued by Arbitrator Schmidt, the company refused to comply with the award.

Elliot Bredhoff:

They did offer back pay up to the end of the contract, less the deductions specified by Arbitrator Schmidt, but they refused reinstatement and they refused any back pay for the period running from April 5th, 1957 up until the arbitrators award or thereafter, up until they were to offer reinstatement.

So what we really have here was an employer improperly discharging employees on — from — from their employment.

The employees attempting to enforce their rights under the grievance and arbitration machinery, the employer refusing to accept the grievance in the first instance, finally, after agreeing to arbitration, reneging on his agreement to arbitrate, then being forced by the Court, the Federal District Court to finally arbitrate and after finally arbitrating — refusing to abide by the arbitration award.

Also, the employer attempted to get the union to waive the rights of the employees as the condition for a new contract.

The union was then forced to go into the Federal District Court to obtain a show cause order as to why the employer should not abide by the arbitrator’s award.

This was done on November 25th, 1958.

The company answered, the Court issued a show cause order.

And on December 16th, 1958, the District Court issued an order and the written opinion in which he ordered the company to comply with all the provisions of the arbitration award.

The judges’ opinion appears on the first part of the record at pages 3 through 14.

The judge pointed out that the case is being prosecuted by the union primarily to obtain reinstatement of the workers with the monetary award, a secondary consideration to the company argument that the arbitrator had exceeded his authority by ordering reinstatement and back pay for a period beyond the contract expiration date.

The Court said this, “An investigation of all the cases cited by the company that is to reveal that in each of them, the discharged employees accepted the termination of their employment and suit for damages for the wrongful discharge without seeking reinstatement.”

He noted that the men involved were elderly men and that reinstatement was far more critical to them than any back pay or any monetary damages that might be due them.

And the added at pages 10 and 11 of the record, the first part of the record, the following.

To allow the defendant to only reimburse the employees up until April 4th, 1957 would be to allow the defendant to profit unfairly from its own wrongdoing.

If the man had not been unjustly discharged, it must be assumed that their employment would have been continued today.

Until reinstated, these employees continue to suffer loss of wages by virtue of the defendant’s improper action, irrespective of any expiration of the contract.

The company then appealed to the Court of Appeals and the Court of Appeals at — on the particular issue involved here whether the award may include reinstatement and back pay for the period after the contract had expired.

The Court of Appeals said that the award of back pay for the period subsequent to April 4, 1957 could not be enforced.

The Court reasoned that the cause collective bargaining agreements do not create a permanent status or condition, or given indefinite tenure or extend rights created and arising under the contract beyond its terms, it falls that the employees who were discharged unlawfully could not enforce an award for back pay.

The Court modified the judgement so as to limit the recovery of wages just to the period of the contract expiration.

William J. Brennan, Jr.:

(Inaudible)

Elliot Bredhoff:

The District Judge directly reinstatement, Your Honor.

He —

William J. Brennan, Jr.:

Affirming on the (Inaudible)

Elliot Bredhoff:

No, it was not affirmed by the Court of Appeals, Your Honor.

And this appears from our petition on rehearing.

In their first opinion, the Court of Appeals did not specifically deal with reinstatement.

They merely limited the back pay to the contract expiration date.

However, in our petition for rehearing, we asked the Court to clarify that and the Court did clarify that by striking out from the arbitrator’s award the requirement that the company reinstate the employees.

The only question left then and the only question that the company has taken up here that has contested here is, it relates to the action of the Court of Appeals in reversing the District Court’s order with respect to reinstatement and back pay subsequent to the termination of the agreement.

Charles E. Whittaker:

Well, that’s the question you’ve been (Inaudible) isn’t it?

Elliot Bredhoff:

Well, and that’s the company that the — that’s the question that the company has addressed itself to, Justice Whittaker.

Charles E. Whittaker:

I see.

Elliot Bredhoff:

Now, perhaps we can refine that issue a bit.

The company contention is that the arbitrator lacked jurisdiction — lack jurisdiction to award any relief running beyond the contract expiration date either reinstatement or money damage — or — or an award of back pay beyond that time.

But, when the company contends that, it is the same as saying that the matter of reinstatement and back pay after the contract date was not arbitrable to begin with.

And in that sense, it is similar to the issues that we had here yesterday.

If the arbitrator did — didn’t have jurisdiction to make that kind of an award, well, that issue was not arbitrable in the first instance.

And in — in the cases yesterday, we urged.

My brother Feller urged that the Court in deciding arbitrability should look to see whether there was a claim alleged under the contract.

When the issue was posed in terms of enforcing an award, we believe the Court should look only to the question as to whether the arbitrator interpreted or applied the provisions of the contract.

It is sort of the other side of the coin or the tail end of the same type of inquiry in question which is presented when an arbitrability issue is before the Court.

We do not believe that the Court should look into whether the arbitrator’s interpretation or application was correct under the contract.

And that is backed up by perhaps a hundred years or more of common law doctrine.

We only believe that the Court should determine whether he decided initially under the contract.

And we may illustrate that by an example.

My brother Feller talked yesterday about an end of the contract providing $3 per hour for a job plus 12 jobs let us say.

And the employee demands $3.50.

Well, if the employee had claimed the $3.50 because he said that he was just being underpaid and it was unfair, we conceded yesterday that would not have been arbitrable.

But suppose he actually he claimed he was entitled to the $3 — $3.50 under the contract and the issue did go to arbitration.

And the arbitrator finally decided, “Well, the contract didn’t give him that right but he thinks other companies are paying $3.50.

The company ought to pay this employee $3.50.

That would be beyond his jurisdiction because he was not interpreting the provisions of the contract.

But that issue was not arbitrable in the first instance anyway and not properly arbitrable because it was — it was an improper claim to begin with that it’s true it did go to arbitration, but if the claim had been a proper claim, it — it really was not in the arbitration category.

Potter Stewart:

I’m not sure I got the point of your example.

What — what if the employee had claimed that the — the figure $3 and the collective bargaining agreement actually was just a cold work for $3.50.

Elliot Bredhoff:

If — if he alleged the claim under the contract.

We — we indicated yesterday that we thought he was entitled to have a hearing on that, just I suppose as any type of suit in the federal and in the courts must be processed no — no matter how poorly or — or insubstantial the suit might be.

But, if he simply came in and said, “It’s unfair” —

Potter Stewart:

I want a raise.

Elliot Bredhoff:

I want a raise.

Potter Stewart:

Well, that’d be —

Elliot Bredhoff:

That would not be a contract dispute as to the interpretation or application.

Potter Stewart:

But in my example, it would be in our arbitrable controversy.

Elliot Bredhoff:

I — I believe that he says —

Potter Stewart:

— under your — under your theory the hearing.

Elliot Bredhoff:

— the contract really meant $3.50.

It was a mistake or something like that.

Then, I think you would have an — an arbitrable issue.

Felix Frankfurter:

Suppose he said —

Elliot Bredhoff:

But —

Felix Frankfurter:

— suppose he said that, while it wasn’t written into the contract, there was a firm oral understanding that certain categories of employees will get $3.50.

Elliot Bredhoff:

Yes, Your Honor.

As — and that is the next example that I wanted to address myself to.

We cannot limit the arbitration or — for the contract strictly to the — the terms of the booklet that we handed up to you yesterday.

Now, we don’t know — we don’t have to get in here to the precise question of proof, but there are practices.

There are written understandings which supplement the contract.

There are supplemental seniority arrangements.

There are supplemental understandings as to work under hazardous conditions.

There are all types of —

Potter Stewart:

With industrial common law.

Elliot Bredhoff:

That’s right.

This is under industrial common law which arbitrators are experienced with and know how to apply.

And there are instance — as a matter of fact, in the U.S. Steel contract, there is a provision which expressly protects all benefits and practices and local agreements which provide benefits and excessive, what is in the contract.

Felix Frankfurter:

I don’t want to reopen the Warrior Case.

But suppose the company there said there was a firm understanding which was not written out, that contracting out of his — is within the prerogative of the employer, suppose that issue was tended in those terms?

Elliot Bredhoff:

I — well, I — I think we conceded yesterday that — that would be evidence that could be submitted to the — to the Court in determining whether there was an arbitrable issue.

Felix Frankfurter:

And could have dealt with.

Elliot Bredhoff:

It would go really to the competency of — of the evidence and whether proposals should be brought into — into a discussion.

Once you had a written intent —

Felix Frankfurter:

And why do you say that isn’t Warrior.

Elliot Bredhoff:

Pardon?

Felix Frankfurter:

And why do you say that that isn’t precisely what was the contention of the company in Warrior?

Elliot Bredhoff:

Because —

Felix Frankfurter:

And were sustained by the Court?

Elliot Bredhoff:

Because in — in Warrior, the — there was no discussion in the negotiations about modifying the grievance and arbitration provisions of a contract.

Felix Frankfurter:

Now, in those terms that the claim was that it was sought to put such a restriction into the contract.

And that restriction was not put into the contract and that meant or is allowed be found to me that it was the full facts of purposes written into the contract.

Elliot Bredhoff:

Yes.

But that — that issue really goes to the merits of what the parties agreed upon in terms of management strike to contract out.

And —

Felix Frankfurter:

But — but if you said that — that extrinsic evidence is admissible in order to add to or subtract, and make 3 equals $3.50.

Just what are the criteria by which extrinsic evidence to infuse an element not in the contract in terms maybe admitted and what must be excluded?

Elliot Bredhoff:

Yes.

Justice Frankfurter, the extrinsic evidence, mind you, would be submitted to the arbitrator.

And that —

Felix Frankfurter:

No.

But you said here, that — that the $3, a provision that the rate shall be $3 an hour maybe supplemented or extended by what Justice Stewart called common law understanding or an explicit understanding between the parties deal or with written document.

Elliot Bredhoff:

Yes.

Felix Frankfurter:

Why is — why is $3, they made — may be made to mean $3.50 by extrinsic oral testimony.

If I may not, strictly within — strictly managerial functions, it made to mean the right to — to — they’re not the contract.

Elliot Bredhoff:

Well, it — here again, we — we believe that’s the sort of issue that — that must be presented to the arbitrator.

If the company came into the District Court —

Felix Frankfurter:

Well, but we’ve just agreed that if — if that — that — it maybe made an arbitral issue, although on the face of the contract, it is excluded from being a arbitral issue.

Namely, if three — if the contract is read, three — three equals three.

And you say, you may introduce evidence to prove it’s an arbitral issue and must be allowed to go to arbitration.

Elliot Bredhoff:

Well —

Felix Frankfurter:

Or did I misunderstand you?

Elliot Bredhoff:

No.

We — we said that —

Felix Frankfurter:

Is that what you said?

Elliot Bredhoff:

We said that when the employee makes a claim under the contract, that the contract really means we’re entitled to $3.50.

Felix Frankfurter:

But he must have enlightened the Court that that’s what it means in order to allow that issue to go to the — to the arbitrator.

Elliot Bredhoff:

Well, no.

I don’t believe — we — we went that far in our — in our position yesterday.

I think, we indicated —

Felix Frankfurter:

Well, you mean he says, “3 equals $3.50” that’s an end of the matter?

Elliot Bredhoff:

Well, that and I suppose we have — we — we have to take each factual situation as — as it arises, but the —

Felix Frankfurter:

I know that —

Elliot Bredhoff:

— the fact that he —

Felix Frankfurter:

— but whenever I hear that, I always think that I must have some guide to understand you —

Elliot Bredhoff:

Yes.

Felix Frankfurter:

— what the factual situation means?

Elliot Bredhoff:

Yes.

I —

Felix Frankfurter:

Facts don’t established criteria.

Elliot Bredhoff:

But Justice Frankfurter, as — as we talked yesterday.

A grievance is written by ordinance.

And he does not with any definity specify the contract provisions that he might come under.

He may know that he has a local understanding with his foreman.

It may even be in writing that he’s supposed to get $3.50, when he works on a particularly hazardous job even though his normal rate is $3.

And if you look at decent jobs less — or ultimately look to the contract, it says $3.

But he has alleged a claim under the contract and he doesn’t spell it out in the grievance and we believe that that issue should be submitted to an arbitrator —

Felix Frankfurter:

I’m not too sure if I understand that.

If the contract says $3 and the grievance is, that he has $5, but was denied.

And I think, I’m under the contract entitled, although it doesn’t say so, to $5.

That’s an end of the matter.

The Court must let $5 rather that $3, that is if you go to the arbitration.

Elliot Bredhoff:

I believe so.

Just like any complaint which might allege something it’s as nonsensical as that.

Elliot Bredhoff:

At least that is processed until there is a determination made in the courts that he did — he wasn’t entitled —

Felix Frankfurter:

(Voice Overlap) —

Elliot Bredhoff:

— by those under commercial contracts.

Felix Frankfurter:

And then, if your complaint helps me much, because there must be some connection between the allegation and — and the remedies sought.

Elliot Bredhoff:

Yes, but that is not determined until there is a hearing on that.

Earl Warren:

Mr. Bredhoff.

Are you and — you and Mr. Feller, you’re associate, in accord on this matter.

Really, I understood him to say the opposite yesterday of what — what you’re telling us now.

I — I — I thought I understood him and now I — I understand you’re saying just the opposite of what he told us.

Elliot Bredhoff:

Well —

Earl Warren:

Are you in accord with each other?

Elliot Bredhoff:

Yes.

I believe we are Justice Warren because —

Earl Warren:

Because — you — you think what you’re saying now is in accord of what he says yesterday?

Elliot Bredhoff:

Well, let me go — sorry.

I believe — I believe we are on — on all force.

Felix Frankfurter:

What — what you’re saying —

Elliot Bredhoff:

That — it — it —

Felix Frankfurter:

— if I can — in —

Elliot Bredhoff:

— that does not —

Felix Frankfurter:

— in order to answer the Chief Justice’s question.

Do I understand you to say and then that — and answer both questions.

I understand you to say, that if a grievance claims is claimed to arise under the contract, no matter what the contract in terms says, that must automatically be sent to arbitrator.

Elliot Bredhoff:

That’s correct, Your Honor.

I believe that the confusion may have arisen when I referred to a complaint being filed in a court, Chief Justice Warren.

A complaint under a commercial contract say, where — wherein the plaintiff claims $5 where the contract seems to say he is entitled to $3 or $5000, let us say, instead of $3000.

It maybe a completely insubstantial claim and it has nothing to back it up, but that is entitled to a hearing and will not be disposed of until — until the — there has been some evidence taken and found to be not meritorious.

William J. Brennan, Jr.:

Well I — I —

Earl Warren:

I thought — I — I thought I knew what your position was.

I’m totally confounded now.

Earl Warren:

I have no — have no idea what your position is at all.

Elliot Bredhoff:

On — on the other two cases.

Earl Warren:

On what you’ve been — yes, that’s right.

Elliot Bredhoff:

Yes.

Earl Warren:

It’s on — entire confusion (Voice Overlap) —

Elliot Bredhoff:

Yes, well — I think Justice Frankfurter has stated —

Earl Warren:

— so far as I’m concerned.

Elliot Bredhoff:

— has stated it — has stated it correctly, that when — when the employee alleges in the grievance machinery, that he has a claim under the contract.

A claim of violation by the employer, a difference as to the application or compliance with the provisions of a contract, then he is entitled to have that issue submitted to an arbitrator.

And the —

Potter Stewart:

He ought to make — he has to make as two claims, then he has to show two things, as I understand your position.

A, that his grievance arises under the contract.

That there has been a violation of the contract by the employer, just to make that allegation.

Elliot Bredhoff:

That is correct.

Potter Stewart:

And secondly, he has to make the allegation that this is a violation of the kind that the parties have agreed to arbitrate.

Elliot Bredhoff:

Well, that is correct.

He has to show that there is an arbitration clause which provides —

Potter Stewart:

Which covers this violation.

Elliot Bredhoff:

And what with — and in the typical clause, any difference between the parties maybe arbitrated.

William J. Brennan, Jr.:

Well, I wonder — I wonder if we’re not making this over — overly difficult.

These arbitration clauses ordinarily say, “Grievances as to interpretation or application shall be arbitrated.”

Elliot Bredhoff:

That’s correct.

William J. Brennan, Jr.:

And I understood, Mr. Feller to say this, yesterday.

That if a grievance is, that has a matter of interpretation or application of the agreement.

The employee is agreed that this — if the employer refuses to voluntarily to go to arbitration, is all he need to show a district judge, namely, one, there isn’t agreement providing for submission to arbitration of grievances over the interpretation or application in the agreement.

Two, that he has submitted a grievance allegedly claiming that there’s been a violation of the agreement as properly interpreted in the plot.

Elliot Bredhoff:

I think that’s correct.

William J. Brennan, Jr.:

That if there’s to be any parole evidence at all, heard by the District Judge, that is only to the evidence going directly to the party’s negotiations of the arbitration provision.

Elliot Bredhoff:

That is correct.

William J. Brennan, Jr.:

And not beyond that.

Elliot Bredhoff:

That is correct, Justice Brennan.

William J. Brennan, Jr.:

And that if the reason with any evidence to be offered as to the parties meaning of the arbitration provision itself, that then almost automatically an order for arbitration will go.

Elliot Bredhoff:

I — that’s correct.

William J. Brennan, Jr.:

Isn’t that what it was?

Elliot Bredhoff:

That is correct, Justice Brennan.

Felix Frankfurter:

Now, let me see if I can put that in plain English.

[Laughter] In plainer English — plainer English.

There’s an arbitration clause requiring arbitration of grievances arising out of interpretation or application of the contract.

The union invokes that clause by saying, “We claim — our grievance is that we — we made a claim which was rejected and apparently on the face of the contract was properly ejected because it flies in the face of a specific provision of the contract.

But, we claim that a true construction through interpretation of the contract says three equals five and whether that is so or not, we want to go to arbitration.”

And you, in your case are claiming that if in fact the arbitrator finds that three equals five, that’s final and not subject to court review.

Elliot Bredhoff:

That is correct.

If he finds it —

Earl Warren:

Yes.

But what you —

Elliot Bredhoff:

— under the contract the three equals five, that’s correct.

Earl Warren:

Well, Mr. Bredhoff, you — you agree with every — every suggestion was made for the Court and I submit that they’re not all the same.

Elliot Bredhoff:

I don’t think there’s any inconsistency between Justice Brennan [Laughs] and Justice Frankfurter saying —

William J. Brennan, Jr.:

Which is broad and which is plainer.

I don’t know.

Elliot Bredhoff:

[Laughs]

Felix Frankfurter:

Well, I was drawing that (Voice Overlap) —

Elliot Bredhoff:

Perhaps we’ll let the person determine which is the plainer one.

Felix Frankfurter:

I just (Inaudible)

Elliot Bredhoff:

Justice Warren, I — I believe the — the statements are consistent with what I was trying to say and if there’s any confusion, I’d be happy to try to clarify our position.

Well, I didn’t understand Mr. Feller to say yesterday, that if there was a dispute as to the scope of the arbitration clause, that parallel evidence in the proper case would not be admissible to — and illuminate the meaning of the arbitration clause anymore than it — it would be admissible in any other kind of the contract clause.

That — that his point was that the evidence that was sought to be relied on here as limiting the arbitration clause if properly read did not go to the scope of the arbitration clause but went to the merits of the dispute which was admissible under the arbitration clause itself.

Elliot Bredhoff:

Yes, and Justice Harlan —

Isn’t that it?

Elliot Bredhoff:

I — I believe so, Justice Harlan — Mr. Feller was — was talking about parole evidence when he was referring to efforts by company venue —

It depends on how you read the record as to whether this parole evidence in the Warrior case bears upon arbitrability as his opponent said or whether it bears only upon the merits of the underlying issue, as Mr. Feller claimed.

Elliot Bredhoff:

That’s right.

And — and —

And you have to read the record and decide that for yourself.

Elliot Bredhoff:

That is correct.

But it isn’t legitimate inquiry to determine whether the parties actually meant to modify the arbitration provisions of the agreement as distinguished from the substantive —

You don’t think there’s any confusions on —

Elliot Bredhoff:

— provisions on the merit.

Felix Frankfurter:

But —

Elliot Bredhoff:

Now —

Felix Frankfurter:

— but there’s a — there’s a — an emphasis of what Justice Harlan just said.

If you will add that if you claim, not that it’s an extension or an addition to or a modification of the arbitration clause but comes within it.

That is not subject to court scrutiny.

Elliot Bredhoff:

Comes within the arbitration clause?

Felix Frankfurter:

If you claim — if you claim that your claim —

Elliot Bredhoff:

Oh, yes.

Felix Frankfurter:

— under substantive merits comes within the scope of interpretation of a contract, that is not subject to court scrutiny.

Elliot Bredhoff:

Unless — unless the Court finds that the parties specifically intended that that type of dispute should not be subject to the arbitrations (Voice Overlap) —

Felix Frankfurter:

Can they find that on parole evidence?

Elliot Bredhoff:

Well —

Felix Frankfurter:

You — you —

Elliot Bredhoff:

We — we think —

Felix Frankfurter:

Now, you — now, you bring me where you brought the Chief Justice’s confusion.

Earl Warren:

Now, right — right there.

Do — do you — do you agree with what Mr. Feller said yesterday on that issue?

Elliot Bredhoff:

I do —

Earl Warren:

Is that — is that what he said?

Elliot Bredhoff:

I — I believe, Mr. Feller said that the — the Court could inquire as to whether there were — was any — anything that could be relied on, any competent proof that the parties intended to modify.

William J. Brennan, Jr.:

Well, doesn’t that mean this?

Elliot Bredhoff:

The agreement in arbitration procedure.

William J. Brennan, Jr.:

Does not mean this?

They sat down and they were bargaining out a — an arbitrability clause.

If in the negotiations over the form of that clause, there had been any discussion whether or not contracting out would be included within strictly management functions.

And the agreement reached between the parties in connection with the negotiation of the arbitrability clause, that contracting out would be strictly a management function.

Then, that evidence would be admissible to determine the question whether contracting out was arbitrable.

Elliot Bredhoff:

Yes.

Let’s make —

William J. Brennan, Jr.:

But if contracting out was the subject of independent negotiations not related to the arbitrability clause —

Elliot Bredhoff:

But on the merits.

William J. Brennan, Jr.:

— then it’s — to the merits and goes to the arbitrators.

Felix Frankfurter:

That means that by — by appropriately phrasing by careful phrasing which doesn’t require a great ingenuity, you could prevent any — any review by the Court as to the scope of the arbitration clause.

Elliot Bredhoff:

I — I don’t think so, Your Honor.

Let’s — instead of worrying about parole evidence that they —

Felix Frankfurter:

Well, that’s my worry.

That’s — that was my —

Elliot Bredhoff:

Now, let — let us —

Felix Frankfurter:

— particular worry.

Elliot Bredhoff:

Let us simplify it a bit.

Let us say that there was a supplemental understanding reduced to writing, a letter understanding that the — the parties understand that the grievance and arbitration procedure shall not be deemed to encompass arbitrability of contracting out issues.

Now, that is not on the face of the collective bargaining agreement, but it’s is a letter I suppose, which the company would be entitled to produce in the District Court.

Felix Frankfurter:

You mean that’s a supplemental — a supplemental or annex to the contract?

Elliot Bredhoff:

That is correct, Your Honor.

Now —

Felix Frankfurter:

But then that’s — that’s the better difference.

That — that —

Elliot Bredhoff:

Well —

Felix Frankfurter:

— doesn’t raise the difficulties of — of parole evidence talked across the tables, offers and rejections and — and qualifications.

That’s a very different story.

You got it — it — then it followed the doctrine.

Elliot Bredhoff:

Yes.

Elliot Bredhoff:

Well, that — that gets into the question of, I — I believe the — the competency and — and the type of proof that you’re looking for, but it — I don’t believe that it varies — the — the theory on which —

Felix Frankfurter:

All I’m saying is —

Elliot Bredhoff:

— were — were decided — which were decided.

Felix Frankfurter:

— if I follow Mr. Feller’s argument, it was, that if the claim is made that the — that the merit of the issue that the substantive grievance is within the terms of the arbitration clause, that claim is made.

The Court must take it without more ado.

Elliot Bredhoff:

I — I believe as I — I would like to save the remainder of my time for rebuttal, Your Honor.

Earl Warren:

You may.

Mr. Beatty.

William C. Beatty:

Mr. Chief Justice and members of the courtroom.

I hardly think because I’m replying to the Warrior case.

I would like to go into the facts again if I might to sort of bring our thinking back to this case.

Now, as Mr. Bredhoff has pointed out to you, this was a contract which was entered into on April 5, 1956 to terminate at midnight on April 4, 1957.

There were no provisions for renewals or continuances in that contract clause.

And — and he has also indicated that Article IV and Article III of the agreement are key sections to the agreement that we are here discussing.

Article IV deals with unjust suspension or peremptory discharge in the wording of the contract.

Article III is the grievance procedure, the four-step grievance procedure ending up with arbitration.

And the important words at the beginning of that Section 1, differences arising as to meaning and application of the provisions of the agreement.

Those are the words that prefaced the entire four-step grievance procedure and then you come down to arbitration as your final step.

Now, as Mr. Bredhoff has told you, on January 18th, 1957, some three or four months before the contract was to expire, their grievance, of 11 men arose.

The company maintained that they quit their position and therefore, there was no arbitrable issue involved.

And at the time, the bargaining unit consisted of 52 employees and that was about the extent of the number of employees that enterprise had.

They had a — a couple of clerical employees in the office.

Now, arbitration was asked for and finally, the company denied arbitration.

Then, the contract expired in April 1957 and the matter arose there until — on July 3rd, 1957, unfair labor practice charges were filed before the National Labor Relations Board, maintaining that there had been a — a failure to bargain and also that there had been a discrimination against these men that were discharged.

The complaint was refused by the Board, not sufficient evidence to support it, on August 12th 1957.

Now, this was in the time when Lincoln Mills sort — had just been decided, if the Court will recall.

Then the procedure — the next step in the procedure was to go to Court.

Now, bear in mind, that it is our position here that that contract expired absolutely.

There was no new agreement entered into.

The arbitrator in his — what he denominates, his decision on award and a little prefatory discussion states — and this is in the record, 2A 18, this is in appendix record made up of two sections out of the appendix of the brief.

William C. Beatty:

Well, he states that there was no new contract, a union counsel in colloquy with the Court, in one of these proceedings, admits that there was no new contract.

And affidavits filed on behalf of the employee — employer also shows that there was no new contract or no new contractual relationships other than this, that the men apparently had — had gone out and they wanted to go back to work and they came back, and the company agreed to take them back.

And there had been some noted negotiation as to wages and the company anxiously took them back at a higher wage than had been discussed in any negotiation as to the — enterprise has continued to operate these three years now without any contract with the union at all.

They have bargained on occasions with them but they have operated without contract with the union.

Now, that’s — that gives us the point as to this — of this case before it went in to the courts.

And now, in August of 1957, an action was brought to compel specific performance in the United States District Court for the Southern District of West Virginia, asking that enterprise be compelled to comply with Article III, step four on the grievance — procedure.

A hearing, winding up in the summary judgment motion determined on October of 1957, that the company should submit to arbitration.

Now, there was nothing said in this — the — the Court — Court has a sort of a memorandum of opinion, t wasn’t reported.

But it — it was an oral opinion that was delivered from the — the bench and is reported here in the — in the record.

The Court doesn’t discuss anything about reinstatement rights going beyond the period of the contract.

Now, I might add it was an enterprise’s initial position after the arbitrator made his award.

Now, the arbitrator said this.

He said, “First, you must reinstate these men.”

Now, bear in mind, his — his award came in April — April 10th of 1958.

This was sometime after the — the procedure.

And I’m not talking about where they went in to force us to arbitrate, I’m just getting a little bit ahead, but you have — you have to understand that our position has been that the arbitrator said that there could be reinstatement after the period of the contract.

That the men would get lost compensation after the period of the contract.

However, that would be subjected to a offset for other earnings during the period.

And the enterprise from the beginning has said that they would recognize that portion of the award up to the termination date of the contract.

But that they felt that the arbitrator had exceeded his authority and had gone beyond the scope of that contract in awarding reinstatement and back pay beyond the period of the contract.

Now, I’ll go back to where the Court ordered specific performance and — and ordered them — enterprise to arbitrate.

They submitted the arbitration and it was held on January 3rd of 1958.

And then in April — April 10th, 1958, the award was made and that the decision and award of the arbitrator is set forth in the record.

And as I say, it constituted the matters that I have discussed here just a moment ago.

William J. Brennan, Jr.:

May I ask you?

William C. Beatty:

Yes, sir.

William J. Brennan, Jr.:

Am I correct that the District Court action do compel arbitration was brought after the expiration date of that agreement?

William C. Beatty:

Yes, sir.

It was.

April 4 was the expiration date and the District Court proceeding was brought in August.Some four months I believe or so afterwards.

Earl Warren:

And what was the date of the award?

William C. Beatty:

The date of the award was April 10, 1958.

Earl Warren:

That itself was after the (Voice Overlap) —

William C. Beatty:

Oh, and — and much over a year after the expiration of the contract.

William J. Brennan, Jr.:

Did you — that you would defend against the action to compel arbitration on the ground that the contract had been expired

William C. Beatty:

That question was raised, I think, in an indirect question.

I — I didn’t appear as counsel in — in that proceeding.

But here — here is the way that — it was contended first that — as — as I read it, it was contended that the men quit and therefore, there was no arbitrable issue.

And it was also said that even if they — they — they did quit, it was an unjust — I mean it was a just discharge and that the question was moot.

Moot, I — I take a thing that the contract had expired.

Now, nothing specifically was said, Justice Brennan, about reinstatement rights or money going beyond the period of the contract.

William J. Brennan, Jr.:

Well, I noticed in paragraph nine of the company’s answer, at page 10 of the second, is it, that —

William C. Beatty:

I — I believe that’s right, sir.

William J. Brennan, Jr.:

Yes.

William C. Beatty:

Second section.

William J. Brennan, Jr.:

This — this apparently contends for mootness on the ground that the decision of the arbitrator would be binding only during the life of the contract which expired at midnight, April 4.

Therefore, the question has now become moot.

William C. Beatty:

Yes, sir.

Well, I — I don’t take it that — that they ever specifically said that it might have been embraced in that, but I — I don’t think it was ever particularly argued.

And in reading the memorandum opinion of the Court ordering arbitration, the only thing that I can see that he said was on page 15.

Let me see, that is in the second section also.

William J. Brennan, Jr.:

Second, yes.

William C. Beatty:

Now, this is the first opinion of the District Court.

He got to a proposition somewhat similar to that.

I think it was raised in Lincoln Mills.

The fact they raised — they raised mootness there and they couldn’t make these accommodations for job rights.

I think there were certain provisions in there that they had to make, arrangements for seniority in that sort of thing as I recall this is offhand.

But what the Court did say there, they said, “Well, it’s not moot as to monetary damages.”

And the District Court, at the bottom of page 15, I quoted that language from — from Lincoln Mills.

The language was, insofar as — this is a quote from Lincoln Mills, “Insofar as the grievances of the restoration work loads and jobs assignments, the case is of course moot but to the extent that they sought a monetary award, the case is a continuing controversy.”

William C. Beatty:

Now, that’s about all but I can see in there, that — that was said as to the — the monetary damages or the — the remedy that — that they might have.

Now, as — as I was — was saying after the arbitration award occurred — now, this was in April — April of 1958, then the matter lay at rest there and — until all November of 1958.

And then a show cause proceeding was brought.

Now, that’s the second proceeding where we get the second opinion of the District Court and the reported opinion of the District Court.

Now, in the show cause proceeding, they asked the — the company, they made show cause while they should not comply with the arbitrator’s award.

The company then filed what it denominated as its answer in resistance to the proceeding.

And it maintained that first, that there was lack of jurisdiction on the part of the Court to determine this matter for the reason that it was contrary to the decision of this Court in the Westinghouse Salaried Employees case.

The — the theory there being, and this is not at issue here, but it is, I think, important to see the background of the case, we get the posture of it.

The theory there being that it was a right that was peculiar to individual employees and wasn’t a right that the union have to assert.

Then in — in the alternative to the merits, the company raised the — the same defenses that they have — have consistently to the Court of Appeals and the same thing virtually that we’re asserting here.

The first, that the arbitrator exceeded the scope of his authority in going beyond the termination date of the contract.

That he added to and — and made something out of that contract that wasn’t contemplated by the parties.

Then, there was a second proposition which I assume has managed from the case now.

And that — that was that the award was not found in detriment.

As you — you recall, I pointed out that they allowed a set off for wages that — in other words, that were earned in the outside.

The arbitrator did that.

He didn’t provide any particular formula.

He didn’t — to provide any particular amount and I don’t believe any evidence was taken on that in the arbitration proceeding.

So, that was another point that we raised, that this was indefinite type of award and under our theory that it was totally void and there should — therefore, should be set aside.

Now, we argued before the District Court as well as before the Court of Appeals that the entire thing was void and should be set aside.

Now, after that, the District Court decided that he did have jurisdiction of the matter, that we should comply with the award and ordered compliance.

And then we took a time, we appealed to the — the Court of Appeals.

And before the Court of Appeals, we made substantially the same argument that we made before the — the lower court.

And we came up with this result, the Court of Appeals held that the award did go beyond the scope of the authority of the arbitrator.

That the award, insofar as it allow the monitory compensation after the termination day of the contract should be stricken down, the reinstatement should be stricken down and that the enterprise should pay for the time lost during the period of the contract.

And also, the Court said that — that it was indefinite in the sense that there were no criteria to mathematically calculate how these awards, how — how these offset of compensation should be determined.

And we have pointed out that, like the National Labor Relations Board uses a quarterly system for example, taking in on a three month average.

And there is a possibility of offsetting wages earned over the total period against the total — I mean the — wages earned outside over the total period against wages that could have been earned with the company during the total period.

And — and there’s other ways of — of computing this.

The Court said there that it should go back to arbitration, to — to be determined.

William C. Beatty:

Now, what the Court did at all times here, the Court was familiar with the Lincoln Mills decision.

And it was attempting to protect as much of this award as it possibly could.

It was showing deference to the arbitrator’s award.

We didn’t contest the merits that the — that the discharge — and once the — the arbitrator said that the discharge had been too severe a penalty, we didn’t contest that.

Now, and — and bear in mind too that the arbitrator said that while penalty of discharge was too severe, he said he did think the men were wrong in walking out and not taking their — a grievance to the grievance procedure and therefore, he would apply a 10-day suspension.

In — in other words, the company would get credit for 10 days, but those men should have been disciplined.

So, this wasn’t a — a discriminatory type claim on the part of the company in the arbitrator so — so recognized that.

The Court of Appeals then attempted to protect this award and showed deference to it.

They didn’t attempt to go into the merits of the situation and offset what he held about the discharge or go into the evidence in any manner and we didn’t contest that.

The only thing that we contested was what went beyond the scope of the authority of the contract.

Earl Warren:

Suppose —

William J. Brennan, Jr.:

Now then, may I ask Mr. Beatty?

William C. Beatty:

Yes, sir.

William J. Brennan, Jr.:

What is your understanding of the basis apart which the Court of Appeals concluded that there could be no back pay after the expiration date of the contract or any reinstatement after that date?

William C. Beatty:

Now, I — I — my opinion, Justice Brennan is — and it was based upon our argument dealing with, first — and I — I will go into that but I’ll answer the question right now anyway, and go into it in a little more detail in a minute.

What happened there was, we had argued first that in an arbitration agreement, when you go beyond the scope of authority, it’s for the Court to determine whether or not you have gone beyond the scope of the — of authority of the contract.

There is good arbitration law to that effect not only in commercial arbitration but in labor arbitrations particularly under the Arbitration Act.

William J. Brennan, Jr.:

Well now, what was the — what — where in the arbitration provision itself or what in the arbitration provision itself do you think the Court of Appeals relied on as indicating a limited scope for this?

William C. Beatty:

I don’t think that they relied upon any specific — I — I can’t say that.

They — I don’t say that in — in their opinion and they didn’t discuss that length which in —

William J. Brennan, Jr.:

But — but there isn’t anything, is there, in the arbitration provision itself which indicates that the parties agreed upon such a limitation?

William C. Beatty:

Well, the only thing that I would say is that you remember the language that I pointed out, meaning and applications of the provisions —

William J. Brennan, Jr.:

Yes.

William C. Beatty:

— of the agreement.

Now, that is what I would say limits the arbitrator in going beyond the scope of his authority and gives the Court the right to agree to the final tribunal on it, so to speak.

Now, that that —

Why — why isn’t that that clause that gives that arbitrator the right to decide whether the agreement does authorize a award of this kind even though the agreement has expired?

William C. Beatty:

Well for one thing —

That’s the very issue, isn’t it?

That — that —

William C. Beatty:

Well, the union says, I mean they make that an issue.

Yes, sir.

They do.

Well —

William C. Beatty:

But —

— that’s the whole issue in this — this problem we’re talking about.

William C. Beatty:

I refer — I mean everybody has referred it to Professor Cox.

Then I — I’ve got my version of it too.

If you’ll recall, Professor Cox points out that in — and I think this is a — a good analogy.

He says that type of cause does not mean an arbitrator can lift himself up by his bootstraps.

That he’s limited to things that were within the scope of his authority so to speak.

Otherwise —

Felix Frankfurter:

Everybody agrees — everybody agrees to that?

William C. Beatty:

Sure.

Felix Frankfurter:

Everybody agrees to that because the question then is, what is within the scope of his authority.

William C. Beatty:

That’s right, sir.

Felix Frankfurter:

So the —

William C. Beatty:

And it comes down to what we argue.

We say that it’s a question here as to whether or not this was within the scope of authority.

William J. Brennan, Jr.:

Except that as Justice Harlan is suggesting.

The real question is whether he may determine that over the Court has to determine.

William C. Beatty:

Of course, we say that the Court must determine it.

In our discussion of the brief, we have discussed that particular point and we follow — we take the view that that language doesn’t give the arbitrators supreme power.

Well, and —

William C. Beatty:

Otherwise you — you’re left —

— you haven’t got this situation.

You haven’t got an arbitrator in the face of an expressed provision in the agreement saying that he could not make an award except up to the date, up to the time that the agreement expired.

And then, the arbitrator goes ahead and not withstanding that and says, “Well, I’m going to make the award anyway.”

That’s — that’s — there, you’ll have a situation where he was acting outside his power, wouldn’t you?

William C. Beatty:

Well, you’ll have a —

If the agreement is (Voice Overlap) —

William C. Beatty:

— clear cut situation, certainly.

But I still say that in this situation, I —

The agreement silent here, wouldn’t it?

William C. Beatty:

Our situation is that though.

Although it’s not as clear cut in the terms that you — as you say it.

Felix Frankfurter:

But the difference between what you call a clear cut and a non-clear cut situation maybe all the difference in the world between the power to determine what an ambiguous situation means and the exercise of a right to go outside of a concededly limited situation.

William C. Beatty:

Sir, I don’t think under the general arbitration that — I’ll admit that you could so word it to say he is absolutely supreme but —

Felix Frankfurter:

That is what I meant.

William C. Beatty:

But under a clause like we’ve got, I don’t think that you — you can say that.

That — that the — I think, the Court has to be the final determiner here.

Otherwise, in all these conventional type arbitration agreements, you will let — well, you’re at the — at the mercy of the arbitrator and what his conscience says.

Felix Frankfurter:

The — the examples that were given, if the arbitrator says, “This agreement is way below the prevailing rate of wages in that district or in that State or in that industry and I think it’s an exploitation of labor not to give them plus X.”

Contract says to be sure, so many dollars.

It’s an exploitation of labor not to give X plus Y.

There, you would concededly say, he is actually being a benevolent — he’s Santa Clause and not construing the terms of the contract.

But if the term relate — if the language used plus whatever relevant material maybe introduced from without permits a construction which, if it had been spelled out, would have been spelled out that way.

Then he can — then he isn’t doing what he pleases.

He is exercising the kind of — he is doing what this Court does and every court does when they have a statute before it and says, “Yes, these seem to be plain words but there’s a lot of light when he get to congressional records and congressional committee reports and it means just the opposite.”

William C. Beatty:

I might add, Justice Frankfurter, that, there is the provision in here.

This contract is limited to one year and certainly, when he goes beyond that one year period, he has added something to that contract.

It’s not fair and he does —

William J. Brennan, Jr.:

He does not say the argument —

Felix Frankfurter:

(Voice Overlap) we all know that — that there’s a — if the contracts run beyond the expired term just as a man who is appointed for five years, they said for a six years at the presence of an appointed successor.

Well —

William C. Beatty:

Of course, this is a private contract and you’re dealing with public law.

William J. Brennan, Jr.:

Yes.

But wouldn’t that same argument mean that after the expiration date, it could not have been the appointment of an arbitrator at all?

William C. Beatty:

No, sir.

I — I don’t think that for this reason.

William C. Beatty:

You still had the question of monetary damages within the contract period.

The entire issue wasn’t moot.

And we all know that we litigate (Voice Overlap)–

William J. Brennan, Jr.:

But what’s exactly —

William C. Beatty:

— reaches the period, isn’t it?

William J. Brennan, Jr.:

What’s the contract authority after its expiration date for the appointment of an arbitrator?

William C. Beatty:

Well there, we —

William J. Brennan, Jr.:

You didn’t say anything about the pointing an arbitrator, an arbitrator acting after the expiration date of the agreement?

William C. Beatty:

No, sir.

But it — it was on a valid grievance that — that existed.

There — there was that much out of there.

William J. Brennan, Jr.:

Well, that being so.

In other words, the grievance arose in the — during the period of the contract.

Why should the expiration date have any bearing upon the appropriate remedy within a contract to be resolved?

William C. Beatty:

Because the parties agreed that the terms of this contact should be and only in effect for one year.

Felix Frankfurter:

But it maybe an understanding which was alive during the year that it should continue after the hearing.

William C. Beatty:

Well, I don’t think there was — there is no evidence of that in — in this record —

Felix Frankfurter:

Well, we —

William C. Beatty:

— and —

Felix Frankfurter:

That — that’s the merits of it.

You’re not deciding the merits?

William C. Beatty:

It — it — in that there’s a — as of the contract period and the evidence show — shows that in the record.

I might add that in my opinion, too, I don’t think that the arbitrator stuck specifically to the language of this contract.

I think that he — he went off on a — say what you will, a mistaken interpretation but he said something to the effect that there was continuing rights under law for these people not to be discharged except for discrimination and without cause.

In other words, under law, he didn’t say under the contract after the expiration date.

Now, this is in his award, he says that they were protected by law from unjust faring.

Well, now, the law if there’s no contract, doesn’t protect against the unjust faring, it protects against the discrimination under the National Labor Relations Act.

But that is not so here, we don’t have that problem.

I mean that’s — that’s out of this case.

The — the point being that after this contract terminated, this men or anybody that continued could have been discharged if they didn’t like the color of their hair.

William C. Beatty:

Now, that might be taking the — I mean the most harsh example of it but certainly, the employer did not have limitations imposed upon him by any contract and he could fire or hire as he please.

And I think that the arbitrator at least his decision of award on — that’s 23 in the second part of the record, hence, to indicate that he wasn’t relying upon the specific language of the contract, that he was relying upon some sort of mistaken interpretation that the law gave — gave these men rights after the contract had terminated, which it did not.

And we know that there was no discrimination in this case.

Now, I might go in to a few of the principles that we relied upon before the — but first, I would like to — like to discuss this with the Court.

We feel that this is the area that has not been marked off for industrial jurisprudence of the law of the shops so to speak.

This is the thing where you deal with the bargain and exchange.

We’re — the functional aspects of the contract here are much the same as in any other kind of contract.

Now, you can say there are such things in ordinary contract which I seriously doubt if there is.

But certainly, there are principles that apply to trust and dentures, requirements, contracts, the sale of real estate in the — the functional area of bargain and exchange that would apply to a collective bargaining contract.

Here, we’re — we’re in the area now of attempting to determine what these people bargained for.

And we’re in that area where Professor Cox says, “The imperative which requires a body of industrial jurisprudence within the general area worked off for joint government, has no place in deciding what area has been marked off.”

Then we find that the problem is to be solved by general principles, attempting to determine whether or not he can remake a contract that’s been entered into between the parties.

In the general arbitration field — now, this is where we get into the cases that we discussed before the Court of Appeals.

In the general arbitration field, the arbitrator has long been prohibited from remaking a contract for imposing additional burdens upon the parties.

There’s certainly — I don’t think any question about that and the union doesn’t question the fact that I don’t think anyone that Justice Frankfurter points out here, that if you go beyond the scope, why you can — the award becomes invalid.

The union doesn’t question that now.

And as I pointed out, the — the general law of arbitration has been to that effect, state decisions, arbitration decisions on down the line.

If you go beyond the contemplation of the parties as reflected in the contract, you obviously exceed your jurisdiction.

The fact that there is language in the contract to the effect that it shall be final and binding, doesn’t mean that that completely bars you from going into a Court, it just merely means that it’s the things within the submission or within the scope you are bound, the res judicata within the agreement so to speak, if you have the jurisdiction or the authority.

They — they make some — some — something to do of that language but we say that that’s all that language means and the cases so hold.

Now, we had a contract here that was not renewed or no new contract came up.

All — all rights stem from the contract and these people were protected to April 4 of 1957.

Then you look to some of the general law recording what — collective bargaining contracts.

And you’ll find that it’s — the damages for wrongful discharge under a collective bargaining contract are limited to the earliest date when an employee can be lawfully discharged.There’s a substantial authority for that.

The recovery is limited to the — to the date of the contract termination and there is none after the time that it could be effectively determinated.

It said that collective bargaining agreements, don’t create a permanent status and they don’t give an indefinite tenure or the extend rights created and arising under a contract beyond its life when it’s terminated.

In our — we cited the System Federation case which was a Court of Appeals decision from the Fifth Circuit which is — has some of the similar attributes of this case.

And at page 39 of our brief, there’s extensive language set out from that case.

On page 39 particularly, in italics, there’s this language that dealt with the situation where a man had been furloughed within the period of one contract, wrongfully furloughed.

And after the contract had expired, they asked for a reinstatement and back wages.

William C. Beatty:

And the Court had this to say.

They said they could not because the contract had been breached as to them.

Claim that the breach had extended its life so as to entitle them to time lost and reinstatement after its abrogation.

We — we insist that that is true here.

Now, as I pointed out that we don’t believe that even if you say that you must rely on this language regarding interpretation, we point out that this was the — was not a broad arbitration clause saying that any and all dispute shall be subjected to arbitration.This was the narrow-type clause.

It’s the conventional-type clause.

The union has called it a broad clause.

I believe that maybe it’s a difference in terminology but I call it a narrow clause in the sense that it doesn’t allow the arbitrator the right to determine his own authority.

Not only that —

(Voice Overlap) could I ask you this question?

William C. Beatty:

Yes, sir.

Supposing the arbitrator has had a sentence in his opinion saying that, “From my experience, in these cases over the last 20 years, I take — notice myself that these agreements throughout the industry do cover awards after the expiration date of the agreement and that in the absence of an expressed provision to the contrary, I’m the one who interpret this agreement in accordance to that general practice.”

Was that have been reviewable by the Court?

William C. Beatty:

Yes, sir.

I think the Court has — has the ultimate right to determine whether or not he have stayed within the scope is his authority.

Now, I might add that I don’t think that he would have found any practice to that.I mean I realized you (Voice Overlap) —

Well, he was not blind in what he is —

William C. Beatty:

I realized that you have posed a hypothetical question.

But our research certainly didn’t reveal it.

And the union came up with one arbitration provision where they did that and they want upon some continuing rights theory about the — you had assume that the men would continue employment, in that sort of thing.

But I would say that the — the Court has — the Court is the final determiner of — of whether or not it was within the scope of the authority of the contract.

Now, we also point out that — as I pointed to the recital in the decision and award and reemphasized that that we did not or we don’t believe that the arbitrators specifically relied upon determined of — of the terms of the contract.

He didn’t say that this contract term gives me the privilege or the right of doing this.And as I said, he relied upon something beyond that contract.

Now, I might add here that the union does not contest the fact that if we so desired that we could take these men back and fire them immediately.

They — they admitted to that before the District Court in the colloquy between the Court and counsel, believe I can put my finger on it in just a second here.

That’s in the first portion of the — of the record.

Before it asked — I don’t — now, let’s see.

This is on 22 down about midway of the page, “As I understand their contention or any fact admittedly, there was no written agreement.

He did not contend that this other agreement continued beyond April of 1957 as I understand you” “No, sir, the old agreement did not.”

“Let me ask you this, you take the position then that the company’s way of getting out of this dilemma is to first reinstate him, the — the contract was entered.

William C. Beatty:

You don’t contest the fact that the company could discharge him the date of the reinstatement?”

“No, sir, I do not.”

So it — it seems that you’re arguing about something here that they even admit that you don’t have to do.

In other words, you take them back and you’ve got the right to discharge him immediately.

And certainly, all through this proceeding but —

Charles E. Whittaker:

Well, now, let me if I understand you.

William C. Beatty:

Yes, sir.

Charles E. Whittaker:

You have the right to discharge them immediately, except for union activity —

William C. Beatty:

That’s right, sir.

Charles E. Whittaker:

Wait a minute, provided the contract has expired, is that what you mean to say?

William C. Beatty:

That’s — that’s right, sir.

Charles E. Whittaker:

All right, now you’re talking about the theory of the Court of Appeals, aren’t you?

As I understand the Court of Appeals, they take the view that in the absence of the contract, there is no right to perpetual employment.

This is a right in — that in here is in the contract and that when the contract ended, there was nothing to which the employee was to be reinstated, but if he’d been deprived of rights during the period of the contract, ge was entitled to have an award for those rights.

Now, isn’t that what they said?

Yes, sir.

Now, is that your — still your view?

William C. Beatty:

Yes, sir.

I — I — that — that has been my (Voice Overlap).

Let — let me point out this, there — there was this distinction.

I argued that the whole thing was invalid and void.

It should be set aside by reason of this argument that the Court of Appeals advanced.

The Court of Appeals said, “No, we’ll separate the valid from the invalid portion of award.”

And what you stated was what they recognized to be the valid portion of the award and they said, “We will — we will grant that.”

Charles E. Whittaker:

Well, the vested rights acquired under the contract —

William C. Beatty:

Yes, sir.

Charles E. Whittaker:

— have to be awarded.

William C. Beatty:

We aren’t investing that now that the claim was invalid and void.

Charles E. Whittaker:

Now, and — but, to order reinstatement after the contract has ended, would be to order them reinstated to a job that may not then exist for the contract has ended, is that the —

William C. Beatty:

That’s exactly so, sir.

It is not a — well, that brings you right back to the central issue as to what the contract means and that’s all.

William C. Beatty:

Yes, sir.

I — I would say that — as I said before, it’s a question as to whether or not he has gone — gone to the scope of his authority.

The contract doesn’t mean that.

There is no answer to the Court of Appeals opinion that the contract does mean it.

The Court of Appeals is off based, isn’t that it?

William C. Beatty:

Of course, I can’t conceive of a situation where — where you’re going to order them back to work when they’ve got the right to — I say, I can’t conceive.

I don’t mean that, I mean the situations here.

I mean that’s a misnomer in language.

But what I’m saying is that’s — in — in my opinion, I can’t see how they can order reinstatement when, yet they admit that immediately, you could discharge these men and also look at the position of those men that continued on in work.

Charles E. Whittaker:

We could order them reinstated, couldn’t you?

To the status of the employees during the period of the contract, but you effectively do that plan.

You’ll give them every benefit that they could have from that service under the contract which has now expired.

William C. Beatty:

Of course, you’re dealing on something more than that.

You’re giving them damages over a two or three period — two or three-year period say, after the expiration date of the contract.

Charles E. Whittaker:

Not under the view of Court of Appeals.

William C. Beatty:

Oh, no — no, sir.

I mean that if — if you follow the union into that —

Charles E. Whittaker:

What — what I am saying — I’m asking you this, is it true that for all practical purposes, when the Court of Appeals requires that these men be paid for the time intervening to the end of the contract though not worked that this was in effect a practical reinstatement of them to the end of the contract?

William C. Beatty:

Practically, I would say that is true.

Yes, sir.

And they got what, according to the Court of Appeals, all that their contract had provided for.

Felix Frankfurter:

But all these has to be worked out by implication when you use practical.

All these has to be worked out by exegesis that the — although the contract is at an end, it continues to have vitality because something took place for which you want to make — which you want to make good.

Now, what intellectual difficulties or logic of difficulty, the practical difficulties of them saying, “There maybe some other implications that lay people like us, don’t understand what the arbitrator mean.”

William C. Beatty:

Of course, we’re getting back in to what we call the law of the shop.

Felix Frankfurter:

Well, I know.

William C. Beatty:

Or well —

Felix Frankfurter:

But if the law takes out —

William C. Beatty:

(Voice Overlap) the shop to develop by — in labor disputes.

Felix Frankfurter:

But the law (Voice Overlap) — as the beginning just as the common law had a beginning.

William C. Beatty:

Yes, sir.

And that’s right.

I was —

Felix Frankfurter:

First decision on the case, Buick against McPherson, became the common law for New York when it was made.

William C. Beatty:

That’s right, sir.

And I — I agree that the law of — of — of labor jurisprudence has a place.

But it also has — has an area that’s marked off for it.

And we say here that this is not the area that this is the — the place to bargain and exchange where courts have looked at — at contracts for years to determine what the — the parties bargained for and that’s the area that we’re operating in here.

Felix Frankfurter:

Did they bargain for to be bargained, to be determined by the arbitrator.

William C. Beatty:

No.

Felix Frankfurter:

That is that they —

William C. Beatty:

They can —

Felix Frankfurter:

— can bargain for which differentiates this from my point of view rightly from ordinary arbitral provisions in so called commercial contracts or (Inaudible) contracts or any other contracts, where that’s just a mode of adjusting in lieu of a court of justice.

William C. Beatty:

Well, that’s not — not — I — I will agree with that because I don’t say it’s a complete isolated system, isolating the courts completely from it.

There are contentions —

Felix Frankfurter:

I didn’t mean it to be.

All I’m saying is that the vital factor of it (Voice Overlap) —

William C. Beatty:

Well, I think it is a vital factor, sir.

Felix Frankfurter:

— that differentiates it from commercial and (Inaudible) arbitral provisions.

William C. Beatty:

Yes, sir.

I think that’s true and — and of course, we say here though that — that actually after you look at that, that you come back to the situation you find if you’re in the area where the functional aspects of other kind of contracts are the same as this.

Now, that — that’s what we — we say here after you look at this labor jurisprudence that you come down to the situation where it doesn’t apply.

There is no spatial knowledge of the arbitrator that enables him any better than the Court to — to reach conclusion on — on this — this type of subject.

I — I might — might add too that —

Charles E. Whittaker:

May I ask you —

William C. Beatty:

Yes, sir.

Charles E. Whittaker:

— just for my own clarification.

William C. Beatty:

Yes, sir.

Charles E. Whittaker:

Would it have added anything to the rights acquired by these employees if the Court of Appeals had said, “Reinstatement shall — is ordered as well as back pay to the termination of the contract, period.”

Charles E. Whittaker:

Would have anything more then, than it have now?

William C. Beatty:

I don’t think they would except that they couldn’t be discharged for an unfair labor practice for the reason.

Charles E. Whittaker:

Well, another (Inaudible)

William C. Beatty:

That’s right, sir.

I — I think — I think that’s right.

Charles E. Whittaker:

Yes you do.

William C. Beatty:

And we’ve also — we’re — we’re in this position, too.

We haven’t — I mean we have consistently said but we don’t go over the — we don’t have to take them back.

Now, at some place along the line even if you take the view that — that they had to be in — reinstated over this long interim period, after the contract expired.

Certainly, we had a right to terminate them during that period.

And there’s been a manifestation of that right, that many occasions along here.

So, you — you have that problem of — of when do these rights cut off.

And certainly, we say that the union says, we haven’t specifically fire a number and we said we don’t want them back but we’ve done everything but write a notice to that effect even though you would say that — that the — the arbitrator was correct.

We have manifested an intention that we did want them after the expiration date of the contract.

And that has been discussed somewhat in — there has been no allusion in oral argument to that, but in the references to the (Inaudible) case by the union in its brief which we feel — we feel (Inaudible) is not controlling here because it had a national security overtones, and it was pointed at protecting individual rights in a grave referring problem.

It’s not — it’s not this type of thing where we’re dealing with — with contract rights.

There, the Court was faced evidently with the — the problem of removing what a man called a “badge of infamy” that it had been attached to you.

And they felt that that case, the — the way they reached the conclusion was to give rights back to a man, that had been taken away from in procedurally and so forth.

We do not feel that that case controls and I might add that in closing, that we don’t feel that there has been — there is any overall arm — as a matter of fact, we find that what has been done here does not conflict and it is entirely consistent with the national labor policy.

The union have — has not made mention of that in their opening statement but I did want to call it to the attention of the Court, enclose that we do not feel that the labor processes are being impinged upon by the Court of Appeals decision.

And as we earlier pointed out, the Court attempted to provide and protect, provide for and protect that arbitration award by separating the valid from the invalid and following the later cases to that effect, that if you can’t separate the valid from the invalid portion of award, then you may so do and say that this — this is a valid portion and we’ll just strike down the invalid portion and not the entire award.

It was entirely consistent with Lincoln Mills and with the opinions of this Court in Lincoln Mills to use their judicial inventiveness to — looking at — at the federal law, the — a number of express statutory mandate and so forth.

And to attempt to come forth with some sort of national law and collective bargaining contracts.

There is nothing, we submit, in the opinion of the Court of Appeals or in the result that was obtained that is inconsistent with that national labor policy.

As a matter of fact, it was an attempt to follow the — the path or the pioneering path that had been setup for those course to follow and to protect that award to the greatest extent possible following principles of arbitration law and not in a posit principles adopted from contract law but a posit principles adopting them over into this field and coming forth with the result which it had.

It has been — and there — there is a considerable amount of money involved even in the award in — in giving money up until the time that the contract expires.

Now, something has been made of the policy or I mean from the policy aspect.

The union makes the argument that here, you’re going to let the employer get away with something that he’s going to be able for the — the arbitration procedure by being able to delay arbitration until the expiration of a contract.

Now, that is not so, because he is faced with, one, his great economic sanction.

No employer is going to deliberately let a contract rise with the idea of saying it’s not arbitrable and allow damages to accrue during the period of the contract against him.

William C. Beatty:

Secondly, he’s got the economic pressure of a strike stream in the place.

And certainly, if — if he doesn’t comply with this contract, he’s got back the content with and I don’t think that it can be said that any reasonable employer is going to sit back and just dream up excuses purporting this type of contract.

We don’t feel that this will impede arbitration.

Well, I might add that certainly if it is determined that under one of this conventional type clauses, that the Court does not or is not the final determinant of whether or not the arbitrator is acting within the scope of his authority.

Now, this is all the conventional clause and there’s going to be a many — of an employer before he had something that he did not have.

And that it is going to, I would say, fourth arbitration to the extent that there will be many devises, or attempts to develop devises to avoid arbitration altogether or to, at least limit it to an extent that perhaps might not be good if it encroaches upon this area of industrial jurisprudence they were speaking of.

I would like to thank the Court for its indulgence.

And, gentlemen, it’s been a pleasure appearing before you.

Thank you so much.

Earl Warren:

Mr. Feller.

David E. Feller:

May it please the Court.

I think little has to be said in rebuttal on this particular case.

I would like to point out to the Court that this contract has a language dealing with what happens as Mr. Bredhoff pointed out, when you discharge a man without just cause.

Now, Mr. Beatty in his brief says, we point out what a terrible situation this would be because labor contracts are always for discrete intervals.

And we said what a terrible fix if a union would be in it.

An arbitrator didn’t have the authority to find that there was an obligation to reinstate.

And he said, “If you wanted to provide in an agreement that if a man was discharged during the term of that agreement, an arbitrator could after the term order him reinstated, why — why didn’t you provide it?”

And of course, that is precisely what the arbitrator said was provided in this agreement.

The arbitrator construed and he read one paragraph in the arbitrator’s opinion.

The arbitrator’s says — say, language is — is — on page 23 and the second part of the record.

Potter Stewart:

Page 23, was it?

David E. Feller:

Page 23, in the lighter print, in the back — back part.

He discussed the law in coming to a conclusion as bearing on this conclusion on this agreement.

And he says, “Article IV of the agreement.”

I’m not talking about the agreement, “imposes an unconditional obligation on the company to compensate an employee wrongfully discharged or suspended for time lost.”

In other words, he said, “That is not conditioned, that obligation is not conditioned by the termination.”

That’s the way he construed that agreement.

He didn’t reach out to the air and he faced it on Article IV of the agreement.

Felix Frankfurter:

Where is Article IV?

David E. Feller:

Article IV is — you will find, Your Honor, on page — turn over the earlier pagination.

David E. Feller:

The critical language at the top of page 18 — top of page 18 in the — the yellower paper of the record.

At The top of page 18 is the critical language from Article IV, that’s the suspension and discharge.

“Should it be determined by the company or by an arbitrator in accordance with a grievance procedure that the employee has been suspended unjustly or discharged in violation of the agreement, the company shall reinstate the employee.”

Now, he construed that provision.

He construed, the arbitrator construed that provision as requiring the employer to reinstate this man even after the contract had expired.

And he was doing his job of interpreting and implying the agreement.

He certainly — what Mr. Beatty says, as he’s got no right to interpret that clause of the agreement.

He exempts that clause from the total agreement which the arbitrator has given authority to interpret in the plot.

And I’d simply don’t know of the basis.

I like to address myself to Mr. Justice Whittaker’s question, which implied — but really that goes to Mr. Beatty’s argument which is based on the law of damages.

That damages run to the end of a contract.

The argument that after all — this is kind of silly if you say you’d have to reinstate him but the employer can fire him.

Well, maybe the parties wrote a silly contract.

The arbitrator said that’s the contract and you have to reinstate.

As a practical matter, and I don’t know whether this Court is a judge on that, the arbitrator maybe, that’s not very silly.

Reinstating a man and then fire him has a far different consequence in the industrial field, industrial relationship.

They’re not reinstating him and just giving him some money.

The requirement which the arbitrator found in his agreement that you reinstated, it maybe that you can then fire him if there is no new contracts.

But what will happen in your plan, it would be far different — if you didn’t reinstate.

The point is and — and let me say that the incredible thing is that this question — we’ve just been through the American Manufacturing case.

Nobody ever suggested there that Sparks didn’t have a good grievance for reinstatement.

In the Lincoln Mills case, which the court below refer, if Your Honors will remember in that case, the question involved work loads, how many spindles a man have to operate.

In the Textile Mills, the grievance was filed right at the very end of the contract and the question came here — and nobody said it was moot because the contract expired and there wasn’t no newer.

What they said was it was moot because the plant shut down.

And therefore, it became immaterial what the spindles was, and the Court said “Well, if the plant shut down.”

The opinion of the Court said, “That would make the question of the work assignments moot but then, you have the damage question which sustained, but nobody suggested that because the contract terminated, the obligation to make good, to do what you should have done during the contract term didn’t continue.

What this employer should have done, what he is required to do under the contract is reinstate these people, not pay damages.

There’s no — this is not a contract for damages.

The contract says, “If you discharge this man wrongfully, then reinstate him.”

And that right vested at the time during the controversy.

David E. Feller:

The arbitrator found something.

And he found that not having complied with that obligation, the employer had a continuing obligation to reinstate him.

Of course, the back pay run along but that’s employer’s fault not our fault.

As far as we’re concerned, then people would never have been fired in the first place, or would have been reinstated when we asked them to be reinstated.

But if he wants to drag us through litigation twice to enforce arbitration in the first place and — and force compliance to the award in the second place, he manufactures his own problems which are not damages, strictly speaking but reinstated.

Now, I want to advert in the few minutes I have left to the problems which were raised in the earlier part of the — deal with Mr. — or argument with Mr. Bredhoff.

I think, we have made our position clear and I think there may have been an inadvertent response to a question.

But — but the question which we’ve made, and I would like to answer Mr. Justice Frankfurter’s question, where he said, “Could you not write the agreements so that there’ll no — be no question for the Court?”

Obviously, you could right an agreement, so there’s no question to report.

As a matter of fact, the — that depends on what kind of arbitration agreement you — you write.

You can write a broad arbitration agreement, a narrow arbitration agreement, an agreement which limits arbitration to discharges.

There are such cases saying the only thing that can be subject with — the arbitration is discharges and you negotiate.

One of the issues in collective bargaining very often is, “What shall be the scope of arbitration?”

The strike in Henderson, North Carolina Textile Workers where it had been described, was about the issue of the scope of arbitration, where there should be arbitration.

You can have strikes about that.

But our point in Warrior & Gulf was that none of the negotiating — none of the evidence put in dealt with any negotiation about the arbitration clause but dealt with managements rights to contract and the subcontract.

And that we said to have nothing to do with the arbitration clause which have been in the contract for years.

And what you are arguing and introducing what the Court relied on to find out the grievance was not arbitrable, wasn’t the grievance in substance was no good because of negotiating history.

And we said that was improper and, Mr. Lang’s in this Court to convert evidence dealing with a proposal for this section to the contrary fact into — import them through that door and say every — really amounts to saying, every bit of negotiating history as to the substance of the contract, merely relates to the arbitration provision because if it’s clear to be — a grievance wouldn’t be no good.

Then it won’t be arbitrable and therefore, it limits the arbitration clause.

And of course, we never argue and never conceded that that kind of evidence was either competent or material or relevant to the question of the scope of the arbitration clause.

Potter Stewart:

Mr. Feller, at the risk of importing more confusion, may I ask you this.

Do you concede — do you concede that evidence concededly and clearly going to the meaning of the arbitration clause would be properly admissible for consideration —

David E. Feller:

Well, I —

Potter Stewart:

— by a court when asked to submit a (Voice Overlap) —

David E. Feller:

I — I frankly vested the question of parole evidence, rule in the rules of evidence, I do not pretend to give an answer one way or another.

Potter Stewart:

Well, put that to one —

David E. Feller:

It would be relevant, it would clearly be relevant if you sought to arbitrate something which clearly — well, let — let me — I can — I don’t like to give abstract answer.

Let me give you a concrete answer.

We have the Automobile Worker’s contract say, “Questions of production standards be to the line shall not be subject to arbitration.”

David E. Feller:

And they’ve excluded this from the process.

That’s very important to them to exclude it from the process.

Now, then the question is, if there were extrinsic evidence to deal with the — what the parties meant when they excluded that from the arbitration provision, would that be relevant to the question of whether the grievance is an arbitrable one from the courts.

You — I think it would be relevant.

I — I don’t want to get in to the question of parole evidence rule and whether you go behind the contract.

But that’s quite a different thing.

Then, the evidence which is involved in Warrior & Gulf and as a matter of fact, I do not know of a case.

Under our arbitrability cases in the Federal District Courts and the Courts of Appeals, and the New York courts, I do not know of a case when anybody has ever really brought in that kind of evidence.

That’s — that kind of — they always bring in evidence as to the dispute.

And they say, “Well, when we agreed that the employer would have this right, what we meant was that it wouldn’t be arbitrable.”

And then, they try to sneak it all into the arbitration clause.

But that is — that’s — the kind of evidence that I’m saying ought to be kept out, was the only kind of evidence in the Warrior & Gulf case, was dealt with the merits of the dispute.

Felix Frankfurter:

Let me put as — put as unusual cases, you’ve dealt with it a while ago.

Supposing your Automobile case, the company is prepared to show that as a bargaining table, that was put in, that was put in for — in order to have an agreement and not have a strike.

But it was explicitly understood and they’re prepared to back it up to the hilt with testimony of the persons of the Automobile Workers, but the parole evidence will decide that.

It was put in in order because the leadership thought that that would satisfy the men or they didn’t want to offend their feeling against him.

But it was agreed that it would never be invoked by the — and that they are prepared to put in a parole evidence that that was just binding (Voice Overlap) —

David E. Feller:

The arbitration clause didn’t mean what it said it meant.

Felix Frankfurter:

Yes.

David E. Feller:

Well, I think and I confess I pushed hard.

The people who would say arbitrability is — the arbitrators would say, “That is out.”

The Court can’t even answer that.

But, I would have to concede that if the Court has an — a promise to enforce and has to find out what the promise is, it has to hear evidence as to the nature of the promise to arbitrate.

I don’t see how it can avoid that question.

But, that’s — that’s as far as it can go.

And — and I think this Court — I hope this Court will be quite exquisite in — in not allowing District Courts because District Courts who have a grievance in front of them that they don’t like —

Potter Stewart:

We’re not talking about Cutler-Hammer here at all.

David E. Feller:

I know you’re not talking about Cutler-Hammer, Your Honors, and — and I assume — I assume you’re not.

But, in the most recent cases, the Second — Seventh Circuit on contracting out, they construed the — here’s — here’s the typical case that gives me a problem.

It’s a contracting out case.

David E. Feller:

The arbitration clause at any question of interpretation and application of the argument, or any matters relating to conditions of employment, or conditions of work, or of practices relating to conditions of work could be arbitrated.

Claim was that the contracting out was a violation of the agreement.

The Court said it was not arbitrable because contracting out didn’t deal with conditions of work.

I assume, as Your Honors will get a petition for certiorari in that case, and I don’t want to argue it now.

But, this is the reason I think you have to constrict the — the role of the courts to a narrow role but a genuine role in looking at the promise to arbitrate not to — and say don’t look at the merits of the grievance, is it a claim?

Not is — it’s in fact within or without this.

But do you claim under this agreement?

If you do, then the merits of your claim are for the arbitrator even as expressed clause or an implied clause.

What is the nature of the claim?

I don’t mean the grievance because the grievance is often very good.

The claim made in court as to what you want the arbitrator to hear and if what you want him to hear is a claim that they violated the grievance, then it’s covered.

That’s not the Court’s business.