Before HASTINGS, Chief Judge, SCHNACKENBERG and KNOCH, Circuit Judges.
HASTINGS, Ch. J.: This is an action for specific performance under § 301 of the National Labor Relations Act, 29 U.S.C.A. 185, to compel arbitration under the relevant section of a collective bargaining agreement between the parties. The district court sustained defendant's motion to dismiss plaintiff's complaint on the merits, and this appeal followed.
Appellant Brass and Copper Workers Federal Labor Union No. 19322, AFL-CIO (Union) and appellee American Brass Company, Kenosha Division, a Subsidiary of Anaconda Copper Company (Company) entered into an Amended Pension Plan Agreement and a Collective Bargaining Agreement (Agreement). The latter Agreement provided for arbitration under two separate sections. Article VII of the Agreement, entitled "Grievance Procedure," provided for a series of "steps" to be followed in the procedure of adjusting "any complaint, controversy or grievance" involving the "terms" of the Agreement. After conferences between the Company and Union at successively higher levels, provision was made for a joint or unilateral request for the intervention of the Federal Mediation and Conciliation Service (Mediation Service). Article VII expressly retained for both parties the right of arbitration in the case of discharges for cause or disciplinary layoffs, but such requests were required to be made "in writing within ten (10) days after the Company's final answer in writing to the Union ."
Article VIII of the Agreement, entitled "Arbitration," provided for arbitration of "any dispute" involving "the interpretation or application of any part of this Agreement which cannot be settled between the parties." This article also specified a time limit for submission to arbitration of "ten (10) days following the date when it is determined that the parties cannot agree." The Article further required that the issues for decision be set forth in writing and that arbitrators confine their decision to such issues.
Thus both articles provided that arbitration must be requested within ten days as above set out. The contract did not, as such, indicate whether a court or an arbitrator should determine that the parties had complied with this requirement.
Both the Pension Plan and the Collective Bargaining Agreement were in effect on April 1, 1955, when the Company compulsorily retired all employees who were then 69 years of age or older. Such employees were not eligible for pensions under the Pension Plan*fn1 because of insufficient service with the Company.
On April 4, 1955, the Union orally and in writing*fn2 protested th compulsory retirement of the non-pensioners, complaining that such retirements constituted discharges without "cause," contrary to the provisions of the collective bargaining agreement, and requested reinstatement and reimbursement for any loss suffered by reason of the compulsory retirement. The Company refused to reinstate the employees; it never gave a written answer to the Union's letter of April 4th.
On April 12, 1955, the Union wrote the Company as follows:
"In accordance with Article VII Section 4 lines 199 to 202 we request that the Company join with us in submitting the question of illegal discharge of employees mentioned in our communication to you under date of April 4, 1955, to the U.S. Department of Conciliation for disposal.
"Please advise at your convenience."
The Company's reply of April 14, 1955 was as follows:
"We acknowledge receipt of your communication of April 12, 1955 wherein you request that the Company join you in seeking the services of the U.S. Department of Conciliation.
"The Company does not consider that the retirement of certain employees referred to in your letter of April 4, 1955 to be illegal discharges and consequently cannot join you in your request."
After the Company's refusal to join in a mutual request to submit the grievance to the Mediation Service, the Union did not immediately request arbitration, but made a unilateral ...