Hastings, Chief Judge, Kiley and Fairchild, Circuit Judges.
Class action by employees against employer to recover additional wages allegedly due for services rendered under a collective bargaining agreement.
Defendant General Electric has plants in the Chicago area, designated Hotpoint Business Operation. Local 571 Sheet Metal Workers International Association (AFL-CIO) represents plaintiffs. Defendant and the union have a contract which became effective October 3, 1966.
Plaintiffs claim that a particular paragraph of Article XXII of the contract (referred to herein as the "accelerated progression" paragraph), applies to them and entitles them to more wages than they have received for their work from October 17, 1966 to March 3, 1967, just before this action was begun.
Defendant moved for summary judgment, asserting that the contract provides a method for settlement of grievances and that the issue here, of construction of the accelerated progression paragraph, has been settled accordingly. The district court agreed and awarded judgment for defendant.
It is undisputed that the issue has been processed through three steps of the grievance procedure of Article XVIII of the contract, with the union presenting the grievances in steps 2 and 3. Step 3 was completed February 13, 1967, when management gave its written answer, asserting that the accelerated progression paragraph, properly interpreted, does not apply to the plaintiffs' situations, and denying the grievances.
Article XVIII of the contract (referred to herein as the "considered settled" paragraph) provides in part: "Upon the expiration of thirty (30) days from receipt by the Union of the Company's written reply to the grievance at the Third Step, the grievance shall be considered settled and closed for all purposes unless action has been taken by the Union in accordance with Articles XIX or XX of this Agreement."
Article XIX provides for arbitration procedure. XIX,1.(a) lists several types of grievances which are to be arbitrated as a matter of right upon request of either the company or the union. The issue involved in this case is not one of these types. XIX, 1.(b) provides that a grievance involving the interpretation and application of the contract other than a grievance under 1.(a) may be submitted to arbitration only with mutual agreement of the union and the company. XIX,4. lists several types of matters which are not subject to arbitration or which no arbitrator shall have authority to decide.
XX contains the union's agreement not to strike, except for a "protected strike within the terms of the National Labor Relations Act arising out of a grievance after the . . . Grievance Procedure . . . shall have been complied with, provided that the grievance does not involve a matter subject to arbitration or a grievance which the Company has indicated in writing its willingness to arbitrate. . . ." Any such strike "may be commenced only after the Company's final decision on such grievance" and three days notice by the union.
It appears to be defendant's position that the union could have kept the issue alive either by offering to arbitrate the issue under XIX,1.(b) or by giving a strike notice under XX within 30 days after the completion of step 3, and that because the union did neither, the issue became settled by the operation of the "considered settled" paragraph. This position is supported by the language of the paragraph, taken literally.
Plaintiffs concede that if "in fact, a strike was the proper next step after step 3 of the grievance procedure, or if, in fact, arbitration of the grievance was the required remedy, then in either case plaintiffs would be barred from bringing this suit under the well known and uncontroverted law that contractual remedies must be exhausted before recourse may be had to the courts."
Plaintiffs contend, however, that XX prohibited a strike over this grievance and that this grievance was not arbitrable under XIX.
As already indicated, XX permitted a strike arising out of a grievance after the steps required by XVIII had been fulfilled, if the grievance is not "subject to arbitration" or a grievance "which the Company has indicated in writing its willingness to arbitrate." We think that in this context "subject to arbitration" refers to grievances of a type listed in XIX,1.(a), i.e., arbitrable as a matter of right upon request of company or union. The grievance involved in this action does not fall under XIX,1.(a), and defendant had not indicated a willingness ...