The opinion of the court was delivered by: MISHLER
Plaintiff (Union) and defendant (Employer) entered into a collective bargaining agreement, dated April 30, 1959, which by its terms was to continue until April 30, 1960, and to be renewed from year-to-year thereafter, unless either party to the agreement gave notice in writing to the other 60 days prior to the expiration date '* * * and a date set to negotiate a new Agreement.'
During the contract period and thereafter until the present time, the Union was certified by the National Labor Relations Board as the bargaining agent for the employees involved.
The Union gave more than 60 days notice prior to April 30, 1960, pursuant to Article XXI to negotiate a new contract. Prior to April 30, 1960, after said notice was sent, the parties agreed to extend the terms and conditions of the contract until May 14, 1960. The contract was not further expressly extended.
On June 23, 1960, the parties entered into a new collective bargaining agreement expiring on June 23, 1962. Between the dates of the termination of the April 30, 1959 contract, i.e., May 14, 1960, and the execution of the June 23, 1960 contract, disputes arose which Union claims are subject to the arbitration clause in the expired contract.
The Union claims that its failure to give notice to the Federal Mediation Service pursuant to 29 U.S.C.A. § 158(d)(3) extended the termination date of the contract for the 30 day period referred to therein to June 13, 1960. The plain intent is to condition the right to strike on the giving of the 30 day notice to the Federal Mediation Service to any State or Territorial agency. Local Union 219, Retail Clerks Int. Ass'n. v. N.L.R.B., 105 U.S.App.D.C. 232, 265 F.2d 814, 819. The failure to comply with the section cannot be used as a vehicle for extending the contract period.
The Union further contends that the right to arbitration is a 'vested' right.
In Zdanok v. Glidden Co., 2d Cir. (1961) 288 F.2d 99, the Court declared that seniority rights, and pension rights are vested rights and are not forfeited with the expiration of the collective bargaining agreement, but extend beyond the term fixed in the agreement. See however dissenting opinion of Lumbard, Ch. J. at p. 105.
In Zdanok v. Glidden, supra, the collective bargaining agreement was made by defendant for its Elmhurst, L.I. plant. After expiration of the contract, the plant moved to Bethlehem, Pa. The dissenting opinion in holding that seniority rights did not survive the contract, said at page 105:
'The issue here is whether this collective-bargaining agreement gave the employees, the right to 'follow the work' to the new site.'
In the instant case though the contract expired the relationship of employer-employee continued. During this period of employment, from May 14 to June 23 (the date of execution of a new collective bargaining agreement), all the terms and conditions of the expired agreement were honored except (1) the right to use a union bulletin board and (2) the checkoff, or deduction of union dues from employees' pay. During this 5 or 6 week period, negotiations for a collective bargaining agreement continued.
One of the conditions in the relationship during the term of the expired contract was the grievance procedure as set forth in Article XI of the agreement. Though the agreement expired on May 14, 1960, the relationship continued, and the right to arbitration under the grievance procedure continued. The grievance procedure, once established by the collective bargaining agreement, was no longer dependent upon its existence, but only upon the continued relationship of employer-employee. In Food Handlers Local No. 425 v. Arkansas Poultry Coop., W.D.Ark.1961, 199 F.Supp. 895, the Court quoted 31 Am.Jur., Labor 110 entitled Termination at p. 900, a portion of said section stating:
'An agreement respecting certain terms of an existing collective labor agreement has been held not to amount to a termination thereof it it contains nothing indicating an intention to abandon the established scheme, except with relation to a particular subject or part thereof upon which the parties agree.'
The importance of the grievancemachinery is emphasized in the language of the Supreme Court in United Steelworkers of America v. Warrier & Gulf Nav. Co., 363 U.S. 574, 581, 80 S. Ct. 1347, 1352, 4 L. Ed. 2d 1409, as follows:
'* * * the grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government. Arbitration is the means of solving the unforeseeable by molding a system or private law for all the problems which may arise and to provide for their solution in a way ...