Int'l Union of Operating Engineers, Local 279 v. Sid Richardson Carbon Co., 471 F.2d 1175 (5th Cir. 1973). · Go Syfert
Int'l Union of Operating Engineers, Local 279 v. Sid Richardson Carbon Co., 471 F.2d 1175 (5th Cir. 1973). Cases Citing This Book View Copy Cite
“the representational nature of the question alone is an insufficient basis to deprive parties of contracted for arbitration.”
22 citation events (5 in the last 25 years) across 9 distinct courts.
Strongest positive: Communications Workers of America v. AT&T Mobility LLC (gand, 2021-02-05)
Treatment trajectory · 1973 → 2026 · click a year to view as-of
1973 1999 2026
Top citers, strongest first. 14 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Communications Workers of America v. AT&T Mobility LLC
N.D. Ga. · 2021 · quote attribution · 1 verbatim quote · confidence high
the representational nature of the question alone is an insufficient basis to deprive parties of contracted for arbitration.
discussed Cited as authority (rule) Paper, Allied-Industrial, Chemical & Energy Workers International Union Local No. 4-2001 v. ExxonMobil Refining & Supply Co. (2×)
5th Cir. · 2006 · confidence medium
The decision in Int’l Union of Operating Eng’rs, Local 219 v. Sid Richardson Carbon Co., 471 F.2d 1175, 1178 (5th Cir.1973), which Exxon relies on, could not have overruled Southwestern Bell , because of our rule that a panel decision binds later panels.
cited Cited as authority (rule) Communication Workers of America, Afl-Cio, Etc. v. Us West Direct
10th Cir. · 1988 · confidence medium
Co., 471 F.2d 1175, 1177-78 (5th Cir.1973).
discussed Cited as authority (rule) Local Union No. 77 v. Public Utility District No. 1
Wash. Ct. App. · 1985 · confidence medium
Ed. 2d 320 , 84 S. Ct. 401 (1964); International Union of Operating Eng'rs, Local 279 v. Sid Richardson Carbon Co., 471 F.2d 1175, 1177 (5th Cir. 1973); Teamsters Local Unions v. Braswell Motor Freight Lines, Inc., 392 F.2d 1, 7-8 (5th Cir. 1968), cert, denied, 401 U.S. 937 (1971).
cited Cited as authority (rule) Local 703, International Brotherhood of Teamsters v. Kennicott Bros. Company
7th Cir. · 1984 · confidence medium
International Union of Operating Engineers v. Sid Richardson Carbon Company, 471 F.2d 1175, 1177 (5th Cir.1973). 5 Exemption from arbitration depends on the contract itself.
discussed Cited as authority (rule) Local Union 204 of the International Brotherhood of Electrical Workers, Affiliated With the Afl-Cio v. Iowa Electric Light and Power Company
8th Cir. · 1982 · signal: cf. · confidence medium
Cf. International Union of Operating Engineers v. Sid Richardson Carbon Co., 471 F.2d 1175, 1177-78 (5th Cir. 1973) (question of whether matter is arbitrable is for court; mere clause providing that interpretation of contract is arbitrable does not vest authority in arbitrator over representational matters.) Thus, Carey , unlike the present case, can truly be viewed as arising out of a breach of a contract provision concerning arbitration.
discussed Cited as authority (rule) International Brotherhood of Electrical Workers, Local 2188 v. Western Electric Company, Incorporated (2×)
5th Cir. · 1981 · confidence medium
The narrowness of an arbitration clause will of course limit the court to determining whether the asserted claim is within its narrow confines: we will not read a “clause of limited scope” to override a specific exclusion when extrinsic evidence makes clear that the asserted claim is within the exclusion, International Union of Operating Eng’rs v. Sid Richardson Carbon Co., 471 F.2d 1175, 1178 (5th Cir. 1973), nor will we adopt an unreasonable interpretation of the words in order to find a dispute arbitrable, see Gangemi v. General Elec.
discussed Cited "see" Texas City Metal Trades Council v. Union Carbide Corp.
S.D. Tex. · 2004 · signal: see · confidence high
See Int'l Union of Operating Eng’rs v. Sid Richardson Carbon Co., 471 F.2d 1175, 1178 (5th Cir.1973) (holding that courts may consider the parties’ bargaining history to determine the scope of the arbitration agreement); Phillips Petroleum Co. v. Int'l Bhd. of Boilermakers, 251 F.Supp.2d 1354, 1359 (S.D.Tex.2003) (considering the bargaining history of the parties, side agreements, and the collective bargaining agreement’s silence with regard to the disputed performance incentive plans); see also Contra Costa Legal Assistance Workers v. Contra Costa Legal Servs.
cited Cited "see" Phillips Petro. Co. v. Intern. Broth. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 682
S.D. Tex. · 2003 · signal: see · confidence high
See Int’l Union of Operating Eng’rs v. Sid Richardson Carbon Co., 471 F.2d 1175, 1178 (5th Cir.1973).
cited Cited "see" Chief Freight Lines Co. v. Local Union No. 886
10th Cir. · 1975 · signal: see · confidence high
See International Union of Operating Engineers, Local 279 v. Sid Richardson Carbon Co., 471 F.2d 1175 (5th Cir.).
cited Cited "see" The Chief Freight Lines Company v. Local Union No. 886
10th Cir. · 1975 · signal: see · confidence high
See International Union of Operating Engineers, Local 279 v. Sid Richardson Carbon Co., 471 F.2d 1175 (5th Cir.).
discussed Cited "see" Harrington & Co. v. International Longshoremen's Ass'n, Subordinate Local No. 1416
S.D. Fla. · 1973 · signal: accord · confidence high
Accord International Union of Operating Engineers, Local 150 v. Flair Builders, Inc., 406 U.S. 487 , 92 S.Ct. 1710 , 32 L.Ed.2d 248 (1972) and International Union of Operating Engineers, Local 279 v. Sid Richardson Carbon Co., 471 F.2d 1175 (5th Cir. 1973). 5 .
discussed Cited "see, e.g." Carpenters Local Union No. 1846 Of The United Brotherhood Of Carpenters And Joiners Of America v. Pratt-Farnsworth, Inc.
5th Cir. · 1983 · signal: compare · confidence medium
Compare International Union of Operating Engineers, Local 279 v. Sid Richardson Carbon Co., 471 F.2d 1175, 1177-78 (5th Cir. 1973) (even standard of "arguable arbitrability" which favors arbitration in the doubtful case does not justify construing arbitration clause of limited scope into one which permits arbitration of representation questions, especially where history of bargaining relationship refutes an intent to arbitrate such questions), with Local No. 6, Bricklayers International Union v. Boyd G.
discussed Cited "see, e.g." Carpenters Local Union No. 1846 of the United Brotherhood of Carpenters & Joiners of America v. Pratt-Farnsworth, Inc.
5th Cir. · 1982 · signal: compare · confidence medium
Compare International Union of Operating Engineers, Local 279 v. Sid Richardson Carbon Co., 471 F.2d 1175, 1177-78 (5th Cir. 1973) (even standard of “arguable arbitrability” which favors arbitration in the doubtful case does not justify construing arbitration clause of limited scope into one which permits arbitration of representation questions, especially where history of bargaining relationship refutes an intent to arbitrate such questions), with Local No. 6, Bricklayers International Union v. Boyd G.
Retrieving the full opinion text from the archive…
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 279, Plaintiff-Appellant,
v.
SID RICHARDSON CARBON COMPANY, Defendant-Appellee
71-3389.
Court of Appeals for the Fifth Circuit.
Jan 17, 1973.
471 F.2d 1175
James R. Edwards, Norman Bennett, Gerald L. Anderson, Lubbock, Tex., for plaintiff-appellant., John E. Price, Fort Worth, Tex., for defendant-appellee.
Dyer, Skelton, Ingraham.
Cited by 21 opinions  |  Published
INGRAHAM, Circuit Judge:

Sid Richardson Carbon Company has a plant in Odessa, Texas, producing carbon black. The plant utilizes two methods of production — a traditional method of burning natural gas in a channel (a channel plant) and a second more experimental process of production by incomplete burning of oil in a furnace (a furnace plant). Local 279 of the International Union of Operating Engineers has been the recognized collective bargaining agent for the production employees at the channel plant at all times relevant to this appeal. Employees at the furnace plant were also represented by Local 279, but in a separate unit. [1] Local 279 disclaimed any further representational interest in the furnace unit at the conclusion of its initial certification year.

In 1971 during contract negotiations Local 279 filed a petition for unit clarification with the NLRB, case No. 16-UC-46. The petition, however, was withdrawn before decision. Simultaneously the Union filed unfair labor practice charges and a suit under § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a) to compel arbitration of the following questions:

“Whether or not the collective bargaining contract covered, at the time the contract was entered into or at some time during the term of the contract by accretion, the employees or jobs at the furnace plant and whether or not the union is entitled to recognition in a unit of all hourly employees in the channel and furnace plants.
“Whether or not the employees at the channel plant were told they would be laid off in a manner that violates or breaches the terms of the collective bargaining contract.”

Sid Richardson answered the 301 action, admitting all elements of the complaint except the arbitrability of the questions and the representation of furnace employees by Local 279. Both parties moved for summary judgment, which, after extensive briefing of the questions of arbitration of representation questions and, specifically, arbitration of accretions, was entered in the company’s favor. The district court’s holding in its entirety was:

“Came on to be considered the Motion for Summary Judgment filed herein by the Defendant, and the Court having heard the argument of counsel and considered the briefs submitted by the parties and the affidavits filed in the proceedings, has determined that the National Labor Relations Board has exclusive jurisdiction of the matter involved in this suit.
“It is, therefore, ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment filed herein by the Defendant be, and hereby is GRANTED and the Plaintiff shall take nothing by its suit and the costs herein shall be assessed against the Plaintiff.”

[*1177] We agree with the result of the denial arbitration, but disagree with the reason for its denial. Since the suit for arbitration was due to be denied, we affirm.

The crux of this case is whether parties can contractually agree to arbitrate representation questions. If the agreement provides for such arbitration, concurrent jurisdiction of the National Labor Relations Board will not deprive the parties of their bargain. Amalgamated Ass’n. of Street, Electric Ry. & Motor Coach Employees of America v. Lockridge, 403 U.S. 274, 301, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971); Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 268, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964); Smith v. Evening News Ass’n, 371 U.S. 195, 197, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). It is indeed an unusual contract which will provide for arbitrable issues dealing with accretions of employees by other bargaining units, or, as would be postulated here, the accretion of a separate unit by another unit. Such questions are principally for the Board. But a district court and an arbitrator are not preempted in a 301 action by such considerations if the contract’s arbitration provisions are “arguably” applicable to the dispute and the facts of the dispute convince the district court that the parties had indeed agreed to arbitrate. International Union of Operating Engineers, Local 150, AFL-CIO v. Flair Builders, Inc., 406 U.S. 487, 92 S.Ct. 1710, 32 L.Ed.2d 248 (1972); Jacksonville Newspaper Printing Pressmen & Assistants’ Union No. 57 v. Florida Publishing Co., 468 F.2d 824 (5th Cir., 1972); Southwestern Bell Tel. Co. v. Communication Workers of America, 454 F.2d 1333 (5th Cir., 1971); Lodge 1327, International Ass’n of Machinists & Aerospace Workers, AFL-CIO v. Fraser & Johnston Co., 454 F.2d 88 (9th Cir., 1971). The representational nature of the question alone is an insufficient basis to deprive parties of contracted for arbitration. Carey v. Westinghouse Elec. Corp., supra. Accommodation of arbitration with the Board also presents no bar to such an order. Lodge 1327, International Ass’n of Machinists & Aerospace Workers, AFL-CIO v. Fraser & Johnston Co., supra. Where a unit clarification petition or unfair labor practice charge is in progress, whether before or after an arbitration decision, the Board has demonstrated its ability to make its own accommodation to the arbitration process. Lodge No. 12, etc. v. Cameron Iron Works, 257 F.2d 467 (5th Cir., 1958); Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955); Collyer Insulated Wire, 192 N.L.R.B. 150 (1971). This again presents no reason to deprive the parties of their bargain. But the question of substantive arbitrability in a Section 301 case is for the court. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962); accord, United Steel Workers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steel Workers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steel Workers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); accord, John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). Compare International Union of Operating Engineers, Local 150, AFL-CIO v. Flair Builders, Inc., supra. We must therefore determine both whether the parties agreed to arbitrate and what is-uses were included in the agreement under this circuit’s previously announced standard of arguable arbitrability. See Lodge No. 12, etc. v. Cameron Iron Works, Inc., supra; Communication Workers of America v. Southwestern Bell Tel. Co., 415 F.2d 35 (5th Cir., 1969); Southwestern Bell Tel. Co. v. Communication Workers of America, 454 F.2d 1333 (5th Cir., 1971).

But even a standard of arguable arbitrability which favors arbitration in the doubtful case, see United Steel Workers v. Warrior & Gulf Navigation Co., supra, cannot justify our con[*1178] struing an arbitration clause [2] of limited scope into one which vests arbitration of representation questions. Especially is this true where the bargaining history so clearly refutes an intent to arbitrate representation questions. Compare Local 12934, U. M. W. v. Dow Corning Corp., 459 F.2d 221 (6th Cir., 1972) with Teamsters Local Unions v. Braswell Motor Freight, Lines, Inc., 392 F.2d 1 (5th Cir., 1968), as modified 395 F.2d 655.

The order denying arbitration is affirmed.

1

. The NLRB established a unit for the open channel plant in 1946 in case No. 16-R-1732. The unit of furnace plant employees was designated in the Board proceeding No. 16-RC-3046 in 1961.

2

. Article X of the Collective Bargaining Agreement provides in relevant part as follows:

“Any complaint that might arise out of the application of this Agreement shall, within three (3) days from the date of occurrence, be taken up by the aggrieved employee or employees with their immediate Supervisor; and if the matter is not settled satisfactorily, it may be referred by the aggrieved employee or employees to the Workmen’s Committee for investigation.
“Only matter pertaining to interpretation or performance of this Contract shall be submitted to arbitration, and no arbitrator shall have the power to modify, change, or otherwise alter the terms of the contract provisions, or change the discipline that is administered by the Company.”