KENNEDY, Circuit Judge:
This is an appeal from the district court's order for a stay of the action "until arbitration has been had in accordance with the collective bargaining agreement." We have jurisdiction under 28 U.S.C. § 1292(a)(1). See Beckley v. Teyssier, 332 F.2d 495, 495 n. 2 (9th Cir. 1964).
The appellants are thirty-five delivery truck drivers employed by Certified Grocers of California Limited (Certified). They are members of the Wholesale Delivery Drivers & Salesmen's Local 848, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. The Union and Certified were parties to a collective bargaining agreement in force during the period relevant to this dispute. The appellants filed suit against Certified, alleging Fair Labor Standards Act violations and breach of the collective bargaining agreement.
The action against Certified was begun in state court. The first count is based on the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq. The employees allege that Certified failed to pay time and one half for work in excess of forty hours per week, and they seek unpaid overtime wages for the three year period prior to the date of filing, liquidated damages in an equal amount, and attorneys' fees pursuant to 29 U.S.C. § 216(b). The second claim for relief, also based on failure to pay wages due, alleges that such failure was a violation of the collective bargaining agreement. Recovery is sought on this claim for a four year period prior to the date of the action. The action was removed by Certified to the United States District Court for the Central District of California. Both the claim under the FLSA and the claim based on a breach of the collective bargaining agreement present federal questions. 29 U.S.C. § 185.
The bargaining agreement to which the Union and Certified are parties is known as the Wholesale Delivery Drivers Agreement. Certified alleges that this master contract has been modified by an addendum known as the Long Haul Agreement. One of the issues in the case is whether or not the Long Haul Agreement is a proper modification of the principal contract, the employees contending that it has not been ratified by the Union membership. Appellants' contract claim under count II of the complaint is based solely on the overtime pay provisions of the principal contract, and not the addendum.
Both the Wholesale Drivers Delivery Agreement and the Long Haul Agreement provide for a multi-step grievance procedure culminating in binding arbitration to resolve disputes pertaining to the contract. In reliance on the arbitration provisions, the district court granted Certified's motion to stay both the FLSA and contract claims until after arbitration. The court acted pursuant to section 3 of the United States Arbitration Act, 9 U.S.C. § 3, which provides that suits raising issues referable to arbitration shall be stayed on application of
Appellants argue their contract claim is not referable to arbitration. The principal contention in this regard stems from the limited nature of the relief which the arbitrator is empowered to provide under the contract. The arbitration article of the principal agreement, incorporated by reference in the Long Haul Agreement, provides that: "Any claims for compensation shall be limited to a maximum of six months retroactivity from the date the claim is submitted to the employer in writing." Appellants seek broader relief under the contract by demanding back pay for four years, relief which they contend they are entitled to under state law.
The employees say the contract issue is not referable to arbitration because an arbitrator would lack power to dispose of various claims concerning the contract. They contend that the Long Haul addenda are void because their key provisions were not submitted to the Union membership for ratification and that the arbitrator would be without power to adjudicate the validity of the addenda.
The case of Prima Paint v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), is not to the contrary. There, in holding that a claim of fraud in the inducement of a contract is one generally referable to arbitration, the Supreme
We turn now to the objections the appellants make to the district court's order for a stay of proceedings on their claim for relief under the FLSA, alleged in count I of the complaint, pending arbitration of the claim pursuant to the collective bargaining agreement. We have determined that the FLSA claim is not subject to arbitration under the collective bargaining agreement and that the defendant was not entitled to a stay as a matter of right under the provisions of the Arbitration Act; we conclude further that the district court, nevertheless, has the authority to stay adjudication of the FLSA claim upon finding that certain express conditions, explained further below, pertain to the case.
At the outset we note that unless the parties have explicitly agreed to the contrary, it is a matter for the courts, not the arbitrator, to decide whether the parties have agreed to submit specific issues to arbitration. John Wiley & Sons v. Livingston, 376 U.S. 543, 546-47, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); see Gangemi v. General Electric Co., 532 F.2d 861, 865 (2d Cir. 1976). This rule derives from the fact that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 1320, 1321, 8 L.Ed.2d 462 (1962). "No obligation to arbitrate a labor dispute arises solely by operation of law. The law compels a party to submit his grievance to arbitration only if he has contracted to do so." Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 374, 94 S.Ct. 629, 635, 38 L.Ed.2d 583 (1974). Of course, in construing arbitration clauses we must remain cognizant of the strong policy favoring arbitration of labor disputes, see United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), and of the general principle that "[d]oubts should be resolved in favor of coverage." Warrior & Gulf, supra, 363 U.S. at 582-83, 80 S.Ct. at 1353.
The principal collective bargaining agreement, (the Wholesale Delivery Drivers Agreement) provides for arbitration of a defined class of disputes. Specifically, the arbitration clause applies to "any controversy, dispute, or disagreement aris[ing] during the period of this Agreement, out of the interpretation or application of the provisions of this Agreement . . . ." Whether the Long Haul Agreement is a proper addendum to the Wholesale Delivery Drivers Agreement is a matter of dispute between the parties but, even assuming it to be applicable, the addendum too has an arbitration clause pertaining to "any disputes that may arise as to the application of this agreement and as to the modification of any runs established under this agreement."
We acknowledge that our interpretation of the contract clauses in question is contrary to our interpretation of substantially similar language contained in the collective bargaining agreement at issue in Beckley v. Teyssier, supra. There we held that a FLSA claim was arbitrable under a collective bargaining agreement in which the arbitration clause was limited to "[a]ll grievances or disputes, other than jurisdictional disputes, arising out of the interpretation or application of any of the terms and conditions of this Agreement . . . ." 332 F.2d at 496. The reasoning of that opinion was that FLSA claims are "ones growing out of the relation[ship] of the employer and employee and necessarily involve the application and interpretation of the contract provisions." Id. at 497. We do not think Beckley's interpretation of the contract controls the instant case. One reason which justifies a departure from the Beckley approach in determining whether FLSA claims are arbitrable is that the agreement here contains additional provisions, apparently not present in the Beckley contract, which indicate that the parties themselves did not intend the arbitration procedures to apply to FLSA claims. The contract before us limits arbitration of compensation claims to "a maximum of six months retroactivity from the date the claim was submitted to the employer in writing." Under the FLSA an action for wages may be commenced within two years after accrual of the cause or, in the case of a willful violation, within three years thereafter. 29 U.S.C. § 255(a). Also, the Act provides for liquidated damages, costs, and attorneys' fees, protections not expressly provided by the collective bargaining agreement.
A further reason for adopting our interpretation of the contract is to permit a construction of the arbitration clause that is consistent with direction given by the Supreme Court in Iowa Beef Packers, Inc. v. Thompson, 405 U.S. 228, 92 S.Ct. 859, 31 L.Ed.2d 165 (1972). In that case, the Supreme Court found a significant distinction between contract and statutory rights and relied on that distinction in dismissing the case where certiorari had been granted. The collective bargaining agreement in Iowa Beef provided for arbitrability of grievances "pertaining to a violation of the Agreement," language very similar to the arbitration clauses both here and in Beckley. The Court held that the question whether judicial enforcement of an FLSA claim could be stayed pending arbitration was not presented by the case because the arbitration clause was insufficient to cover
Because the FLSA claims here are not within the scope of the arbitration clause, it is unnecessary for us to address the substantive holding of the Beckley case that where an FLSA claim is arbitrable, a stay of judicial enforcement must be ordered pending resolution by the arbitrator. The Third Circuit is in accord with our rule in the Beckley case. Evans v. Hudson Coal Co., 165 F.2d 970 (3rd Cir. 1948); Watkins v. Hudson Coal Co., 151 F.2d 311 (3rd Cir. 1945), cert. denied, 327 U.S. 777, 66 S.Ct. 522, 90 L.Ed. 1005 (1946); Donahue v. Susquehanna Collieries Co., 138 F.2d 3 (3rd Cir. 1943). See also Satterwhite v. United Parcel Service, Inc., 496 F.2d 448 (10th Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974) (discussing the effect of voluntary submission to arbitration prior to judicial determination of the FLSA claims). The Court of Appeals for the District of Columbia, relying on the intervening cases of U. S. Bulk Carriers, Inc. v. Arguelles, supra, and Alexander v. Gardner-Denver Co., supra, has taken a contrary view. Leone v. Mobil Oil Corp., 523 F.2d 1153 (D.C.Cir.1975). Even upon the assumption that we are free to reexamine the substantive holding of Beckley which does not turn on the interpretation of a particular contract without convening the court en banc, a proposition not free from doubt, our disposition of the case makes any such reexamination quite unnecessary.
Having determined that the Fair Labor Standards Act claim in count I of the complaint is not arbitrable, we rule that the defendant was not entitled to a stay pursuant to section 3 of the Arbitration Act, 9 U.S.C. § 3. We do find, however, that sound reasons may exist in the case to support the district court's determination to stay the action under the powers to control its own docket and to provide for the prompt and efficient determination of the cases pending before it.
Count II of the complaint, the action for wages due under the collective bargaining agreement, is an arbitrable dispute, for the reasons noted at the outset of this opinion, and the defendant was entitled to a stay of this part of the action pending its arbitration. In resolving this dispute, the arbitrator would no doubt make findings as to what contract documents are controlling, the hours and work pattern of the claimants, and the amount of wages paid to them. We think such matters are within the subjects committed to arbitration by the terms of the agreement. These findings, as well as the documents and testimony produced during the arbitration hearing, may be of valuable assistance to the court in resolving the Fair Labor Standards Act claims presented in count I of the complaint, even under the assumption that the court is not bound and controlled by the arbitrator's conclusions, a point we decline to address.
A trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case. This rule applies whether the separate proceedings are judicial, administrative, or arbitral in character, and does not require that the issues in such
We remand this case to the district court so that it may have the opportunity to determine whether such circumstances are present here, and if so whether they justify continuance of the stay previously entered. In view of the urgent nature of the statutory right to minimum compensation provided by the Fair Labor Standards Act and the strong congressional policy favoring prompt payment of wages, see Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 707 n. 20, 65 S.Ct. 895, 89 L.Ed. 1296 (1949), it is appropriate for the district court, if it does make express findings that a just and efficient determination of the case will be promoted by a stay, to consider conditioning any stay upon receipt of satisfactory assurances that the arbitration is proceeding with diligence and efficiency. A stay should not be granted unless it appears likely the other proceedings will be concluded within a reasonable time in relation to the urgency of the claims presented to the court.
It would waste judicial resources and be burdensome upon the parties if the district court in a case such as this were mandated to permit discovery, and upon completion of pretrial proceedings, to take evidence and determine the merits of the case at the same time as the arbitrator is going through a substantially parallel process. We have little doubt the trial court was cognizant of these considerations in making its earlier ruling, but we remand so that it may have the opportunity to make its findings free from the constraints imposed by the not unlikely inference that under Beckley v. Teyssier we might have interpreted the contract to provide for arbitration of FLSA claims.
The appellants assert that the Union, which is not a party to these proceedings, cannot conduct the arbitration in good faith on behalf of the employees. An important issue at arbitration will be the scope of the collective bargaining agreement, specifically, whether it includes the Long Haul addendum. Appellants contend that since Union officials accepted the addendum, and apparently consider it to be part of the agreement, the Union has a conflict of interest and cannot fairly represent the employees' claims. This conflict of interest, the employees argue, relieves them of any duty to arbitrate. See Hiller v. Liquor Salesmen's Union Local No. 2, 338 F.2d 778 (2d Cir. 1964). In addition, appellants, in sworn answers to interrogatories, recite numerous occasions on which they have unsuccessfully requested the Union to prosecute their grievances concerning overtime pay. The employees assert that this alleged wrongful refusal to process grievances on the part of the Union relieves them of any contractual obligation to arbitrate. See Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Seay v. McDonnell Douglas Corp., 427 F.2d 996, 1001-02 (9th Cir. 1970). This issue was raised below but the district court made no specific findings. We express no opinion on whether the plaintiffs have alleged sufficient grounds for questioning the capacity of the Union to process fairly the grievance, but we remand for the question to be explored by the district court.
The cause is remanded for further proceedings in the district court.
However, if the arbitrator determines that the Long Haul addenda were a part of the contract it would follow that wages paid in accordance with a contract do not violate § 223.
The relevant portions of the Long Haul Agreement state: