would be 'drastically reduced,' . . . if a labor arbitrator had the 'power to determine his own jurisdiction. . . .'" Id. at 1419-20 (quoting Cox, Reflections Upon Labor Arbitration, 72 Harv. L. Rev. 1482, 1509 (1959)).
The Court's role in the posture of this case is nonetheless a narrow one. The applicable standard has been articulated as follows: "where it has been established that where the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that 'an order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." Id. at 1419 (quoting Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960)). Under this narrow standard, weighted in favor of arbitrability, the Court must determine only whether "because of express exclusion or other forceful evidence," id. at 1420, there is no reasonable interpretation of the Agreement which would permit arbitration.
Firstly, the Court finds that the Article IX exclusion is inherently ambiguous in that reasonable men could differ over the meaning of "within the jurisdiction of the" NLRB. Indeed, there are at least three reasonable interpretations of this exclusion. The most preclusive interpretation would exclude any matter that is found to be within the NLRB's jurisdiction "by definition" and regardless of whether it is actually made the subject of an unfair labor practice charge with the NLRB. A second interpretation is that the exclusion is triggered by the mere filing of a charge with the NLRB, regardless of whether the NLRB ultimately rules on the merits. Finally, a third interpretation, which the Court adopts, is that Article IX does not preclude arbitration of those disputes which the NLRB dismisses for lack of jurisdiction. TRT has submitted parol evidence of the bargaining history of Article IX, and Local 111 does not object to consideration of this evidence for purposes of this issue. Because the Agreement is inherently ambiguous, it is proper to consider such evidence for the purposes of interpretation only.
The first interpretation that certain matters are by definition "within the jurisdiction of" the NLRB and thus excluded from arbitration ab initio is belied by the other terms of the Agreement, its bargaining history, and the parties' actual conduct. The bargaining history establishes that TRT's concern was to avoid simultaneously litigating matters arising from the same conduct before both an arbitrator and a governmental agency, and not just avoiding the potential for conflicting rulings.
To this extent, Article IX established, in effect, an election of forums, if not remedies.
The provision gave Local 111 a choice to challenge TRT's conduct in one forum or the other. And it is clear that Local 111 understood this, as it was so concerned over the legality of having that choice that it negotiated a clause in Article IX wherein TRT "agree[d] to indemnify and hold [Local 111] harmless against any judgments issued by any Court against [Local 111] based upon a finding that it was unlawful for [Local 111] to have entered into a collective bargaining agreement with [TRT] which excludes from the coverage of its grievance and arbitration provisions disputes that are within the jurisdiction of the Equal Employment Opportunity Commission or the [NLRB]."
The conduct of the parties also contradicts the categorical exclusion of matters within the NLRB's jurisdiction, as TRT itself voluntarily submitted the dispute to arbitration, without objection from Local 111; and TRT only sought to withdraw from the arbitration when Local 111 filed its charges with the NLRB. In sum, there is simply no evidence that the parties sought to assign jurisdiction between an arbitrator and the NLRB on the basis of the legal theory asserted, or unrealistic notions of hermetically sealed jurisdiction. Article IX was intended to apply to any claims arising out of the same conduct, whether or not such claims were concurrently "within the jurisdiction of" the NLRB.
The second possible interpretation of the exclusion would bar arbitration even if the charge was dismissed by the NLRB for complete want of jurisdiction. Upon questioning at argument, TRT's counsel stated that it did not take this position, and that a clear dismissal for lack of jurisdiction would permit arbitration of the dispute. TRT's counsel further stated that arbitration would be permitted on specific matters that the NLRB dismisses for lack of jurisdiction, even if the NLRB assumes jurisdiction over other matters in the same charge. Thus refined, therefore, TRT's argument is that, while a ruling on the merits by the NLRB precludes further arbitration, a dismissal for lack of jurisdiction by the NLRB does not. The Court finds this third position most reasonable in light of the record.
In particular, the bargaining history contains a proposal by TRT that would have addressed the very scenario here at issue. That proposal provided that
the initiation and/or pendency of a proceeding or action before a governmental agency or a court automatically will remove any dispute between the company and the Union or any employee relating to the same subject matter from the grievance and arbitration provisions of this Agreement. Should any such proceeding or action before a governmental agency or court be dismissed solely for the reason that the governmental agency or the court does not have jurisdiction, then the grievance and arbitration provisions of this Agreement shall become applicable to the dispute relating to the same subject matter. . . .
(Emphasis added). The proposal was not rejected by Local 111 because of its substance, but on the grounds that it was simply repetitious and unnecessary, as Local 111 felt it was already covered by the language of Article IX.
In light of this stipulated bargaining history, the Court finds that Article IX is subject to a reasonable interpretation which would permit arbitration. The intent of the parties was apparently that a claim that NLRB dismisses for lack of jurisdiction could be submitted to further arbitration, while a ruling on the merits by NLRB would preclude further arbitration. The issue thus becomes whether the NLRB has ruled on the merits of the entire dispute, as TRT argues, or whether the NLRB has left open at least the contractual issue by stating that "any failure by [TRT] to require the purchaser to adopt the existing collective-bargaining agreement is a matter of contract interpretation and . . . the mere failure to abide by the contract is a matter more properly the subject of arbitration or court proceedings than an unfair labor practice charge." The Court's review would certainly have been facilitated had the Regional Director made his ruling clearer in this regard. Nonetheless, the Court finds that this ruling itself is subject to a reasonable interpretation that it dismissed the contractual issue for lack of jurisdiction.
The arbitration may, therefore, go forward limited solely to the contractual issue whether the Phone Room transaction fell within Article XI of the Agreement as "a merger or sale of the Company's operations as a going business." The Court thus rejects both TRT's argument that the NLRB's actions have a totally preclusive effect on further arbitration, and Local 111's argument that the NLRB's actions have no effect at all. As discussed above, the most reasonable interpretation of the Agreement is that it does not preclude arbitration of claims which the NLRB has dismissed for lack of jurisdiction.
However, Local 111 shall be bound by its election to proceed in the NLRB as to the adverse ruling on the merits of its alter ego argument, as Local 111 cannot "have its cake and eat it too." The NLRB clearly assumed jurisdiction over and ruled on the merits of this issue after an investigation. Local 111, therefore, may litigate this issue only in the NLRB; regardless of what new evidence, if any, surfaces as a result of the NLRB's ultimate ruling on the request for information. Furthermore, the arbitrator must also determine whether he can proceed with arbitration of the contractual issue without relitigating the issue still pending before the NLRB.
In sum, the Court holds that the Agreement is susceptible to a reasonable interpretation that would allow the arbitration of the contractual issue whether Article XI of the Agreement applies to the Phone Room transaction.
The Court shall accordingly deny TRT's motion for a preliminary injunction and grant Local 111's motion for summary judgment to extent of declaring arbitrable the contractual issue left open by the NLRB. A conforming order accompanies this memorandum opinion.
Dated: 19th May 1989
ORDER - May 19, 1989, Filed
In accordance with the memorandum opinion issued herewith, it is this 19th day of May, 1989,
ORDERED THAT plaintiff's motion for a preliminary injunction shall be DENIED; and it is
FURTHER ORDERED THAT defendant's motion for summary judgment shall be GRANTED, IN PART, as follows: the arbitrator shall have jurisdiction to consider solely the contractual issue of whether the Phone Room transaction is covered by Article XI of the Agreement, as "a merger or sale of [TRT's] operations as a going business. . . ." All further relief is DENIED, and this case is DISMISSED.