Before SOBELOFF, Chief Judge, BRYAN and BELL, Circuit Judges.
SOBELOFF, Ch. J.: The union brought this action under section 301 of the Labor Management Relations Act, 61 Stat. 156 (1947), 29 U.S.C.A. § 185(a) (1956), to compel the employer to submit certain grievances to arbitration. The question presented in the District Court and on this appeal is whether these grievances fall within the terms of a clause in a strike-settlement agreement made by the parties, excluding certain matters from the broad arbitration clause of the collective bargaining agreement. The appeal is from the summary judgment entered by the District Court for the company in respect to five of the grievances.
The collective bargaining agreement between the company and the union expired on November 9, 1960, but the employees continued at their work while negotiations for a new contract proceeded. The negotiations were unsuccessful. On November 30, the union called a strike and 110 employees quit work. In the course of the strike, 75 replacements for jobs vacated by the striking employees were hired and began working.*fn1 In addition, the company arranged for 2( other men to work at the factory, but these were not expected to report for work until a later date as it was necessary for them to move their homes from neighboring states. However, the strike ended on December 16, before any of these 27 had actually begun work for the company.
At the strike's termination, the company and the union entered into a strike-settlement agreement under which the parties were to sign a new collective bargaining agreement embodying terms already agreed upon. Paragraph 2 of the strike-settlement agreement provides for the orderly reinstatement of strikers as vacancies occur in the work force.*fn2 The collective bargaining agreement which was later drafted contains provisions governing seniority of employees and a no-strike clause.
Machinery for processing grievances and provisions for arbitration are found in Article V of the collective bargaining agreement. All disputes concerning the "interpretation or application" of the contract, as well as "any other grievance or dispute," are required to be settled through the four-step grievance machinery, followed by arbitration if accord is not reached. Grievances are defined as "disputes about the meaning and application of this agreement, and about alleged violations of this agreement." Article V, however, is limited by paragraph 4 of the strike-settlement agreement, the exclusion clause. This provides first for the retroactive application of the new collective bargaining agreement to November 9, the termination date of the prior contract. Nevertheless, there is a special provision for acts committed by either party in the interval between November 9 and December 16, when the strike was settled.It declares that any acts during that period that may have been in violation of the new collective bargaining agreement, shall nevertheless not be deemed transgressions of the contract or the subject of a grievance or arbitration.*fn3
On December 23, the union filed six grievances with the company. The company processed them through the first three steps of the grievance machinery, but refused to enter upon the fourth step which, under the explicit terms of Article V of the collective bargaining contract, would have obligated the company to submit the grievances to arbitration, if no settlement were achieved. Grievances 1 through 4, the only ones of the six original grievances involved here,*fn4 complain that four named strikers should have been recalled to work on termination of the strike. This is based on the union's interpretation of paragraph 2 of the strike-settlement agreement and the seniority provisions of the collective bargaining agreement. The company answered that the jobs, which these four had formerly held, had been filled by four other men who were hired before the strike was settled, but permitted to report for work at a later date because they lived outside the state where the company was located.
On January 6, 1961, the union tendered two additional grievances. The first complained that the company improperly continued to hire new employees after December 16 when the strike-settlement agreement was signed, instead of recalling employees with seniority who had gone on strike. Unlike grievances 1 through 4 which pertain to certain named persons, this grievance apparently refers generally to all of the 27 out-of-state strike replacements who first reported for work after the strike had ended. The second of the two additional grievances tendered was that the company refused to discharge both the 75 replacements who had been hired during the strike and the 27 who reported after the strike's end, and would not restore the former strikers to their jobs. The position of the union was that these men had worked for less than 60 days and consequently, according to the new retroactive collective bargaining agreement, were in a probationary status only and without seniority.*fn5 Therefore, the union insisted, they must give way to employees with seniority rights. These two grievances the company would not process, even through the first step. This gave rise to the union's grievance 7, complaining of the company's refusal to accept these two additional grievances. Grievance 7 was processed through the third step of the grievance machinery, but the company resolutely declined to submit to the fourth step and arbitration.
I. In Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957), the Supreme Court held that federal courts should entertain suits brought under section 301 to compel performance by a reluctant party of its agreement to submit disputes to arbitration. Three subsequent Supreme Court decisions defined the courts' narrow function in interpreting and applying agreements to arbitrate.*fn6 Briefly summarized, the judicial role is limited to determining whether the recalcitrant party breached its promise to submit the grievances in question to arbitration.The merits of the controversy are to be left to the arbitrator, if the question is arbitrable, or to the traditional unregulated forces of labor and management, if not arbitrable. The precise issue before us is whether the grievances, which admittedly are encompassed within the arbitration clause of the collective bargaining agreement, also fall within the exclusion clause of paragraph 4 of the strike-settlement agreement.
United Steelworkers v. Warrior & Gulf Nav. Co ., 363 U.S. 574 (1960), confronted the Supreme Court with a similar problem of deciding whether a grievance fell within the scope of an exclusion clause. In that case, the company laid off some of its employees because it had arranged for an outside firm to perform certain heavy maintenance work. The union complained that such contracting out violated the no-lockout provision of the collective bargaining agreement, while the employer insisted that the action it had taken was within its prerogative as a management function. The agreement contained the standard arbitration clause, covering disputes "as to the meaning and application" of the agreement, but excluded "matters which are strictly a function of management." The majority of the Court first found that the exclusion clause was ambiguous. This being the case, the Court thought that to decide definitively whether the exclusion clause encompassed contracting out would go a long way toward resolving the merits of the dispute. For, if contracting out were to be considered a management function, and therefore within the exclusion clause, it could hardly be said to violate the no-lockout provision of the contract. And conversely, if contracting out is not "strictly a function of management," then it would become reasonable to hold that the no-lockout provision had been transgressed. The Court reasoned that, to the extent that its interpretation and application of the exclusion clause were to foreshadow a decision on the merits of the dispute, the adjudicative role of the arbitrator, for which the parties bargained, would be diminished.*fn7 Considering this result one to be avoided, the majority sent the case to the arbitrator for decision.
The effect of this holding is to confine judicial construction of arbitration exclusion clauses to instances where the matter in dispute is either clearly within the express terms of the exclusion clause or at least within the manifest purpose of that clause.*fn8 As Mr. Justice Douglas for the majority said, "In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad." 363 U.S. at 584-85.
In the present case, grievances 1 through 4 charge that the company hired four new employees after December 16 instead of recalling four old ones who had participated in the strike. The first of the tendered, but rejected, grievances which provides in part the basis for grievance 7, complains generally that the company improperly hired after the strike had been settled the 27 out-of-state replacements and refused to rehire strikers. Grievances 1 through 4 make the identical complaint, although limited to four specified persons, and for this reason, we treat them together.
The precise issue before us is whether the grievances concern "acts by the Company * * * occurring between the expiration date of the November 9 contract and the date of the signing of this Agreement," December 16, so as to fall within the quoted language of exclusion found in paragraph 4. The union admits that these grievances were rooted in events occurring before December 16, but argues that the exclusion clause is inapplicable because the specific acts complained of happened after that date. The company, on the other hand, asserts that it had arranged for the employment of the men before December 16 and was bound to honor its obligations to them. Thus, the union emphasizes the dates work was actually begun - events all occurring after December 16 - while in the eyes of the company what happened after December 16 is but the inevitable culminating episode flowing from decisive events which had already occurred before that date. Whether or not these grievances fall within the exclusion clause depends upon what happenings are to be considered decisive.
It is a well-settled rule that an employer may fill positions left vacant by employees going out on an economic strike, and that he is not later "bound to displace men hired to take the strikers' places in order to provide positions for them." N.L.R.B. v. MacKay Radio & Telegraph Co ., 304 U.S. 333, 347 (1938); Vogue Lingerie, Inc. v. N.L.R.B ., 280 F.2d 224, 226-27 (3d Cir. 1960); see Olin Mathieson Chem. Corp. v. N.L.R.B ., 232 F.2d 158, 160-61 (4th Cir. 1956), aff'd per curiam, 352 U.S. 1020 (1957); N.L.R.B. v. Industrial Cotton Mills, 208 F.2d 87, 91 (4th Cir. 1953). Under these cases, the critical time seems to be when the arrangements with the replacement workers became irrevocable and fixed, a readily determinable fact. Applying this rule to the present case, if the company is found to have bound itself irrevocably by contracts of employment made with the replacement employees some time before they went to work, then we think that the grievance is covered by the exclusion clause because the critical event, that of hiring, occurred within that period. On the other hand, if there was an informal arrangement in which the company told the men only that jobs would be available to them if they presented themselves at the plant, then there was not any hiring until the men began work and, since this occurred after December 16, the grievance would be arbitrable.
This issue of fact was raised in the District Court on the papers presented by both parties with their motions for summary judgment. As we only recently pointed out, "the standard laid down for district courts in passing on motions for summary judgment is strict." Clarke v. Montgomery Ward & Co ., 298 F.2d 346, 348, (4th Cir. 1961). Summary judgment may be granted only "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed. R. Civ. P. 56(c).Examining the record on appeal in this case, ...