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April 25, 1962


The opinion of the court was delivered by: BRENNAN

The crux of the controversy, submitted by these motions, involves principally the right of an individual employee, a Union member, to invoke the grievance procedure provided in a collective bargaining agreement.

The Black-Clawson Company, Inc., hereinafter referred to as 'Black' or the 'employer', through its paper machine division, is engaged in a manufacturing operation at Watertown N.Y. During all the pertinent times here involved, it was a party to a collective bargaining agreement with the International Association of Machinists, Lodge 355, District 137, hereinafter referred to as the 'Union', which is a labor organization, acting as the exclusive bargaining representative for certain employees of the plaintiff. The defendant Best was an employee of Black from June 4, 1951 until May 8, 1961 when his employment was terminated by a written notice given by the employer. During the above period, Best was a member of the Union. He appears to assert that his discharge was in violation of the collective bargaining agreement. Both Best and the Union take the position that the above action of the employer constituted a grievance and the procedure outlined in the agreement for the settlement thereof was properly and effectively invoked. The requirements of such procedure are summarized below.

 Article XX, entitled 'Grievance Procedure', provides that a grievance, as defined therein, shall be settled in accordance with four distinct procedural steps. Step 1 requires that the grievance 'shall be taken up orally by the aggrieved employee and a member of the Union Committee if he so desires * * *' with the Department Foreman within three working days after the grievance becomes known by the employee or by the Shop Committee. The Foreman will give his answer within two working days. If no settlement is reached, the grievance will be reduced to writing upon the proper form and the Foreman will record his answer thereon. Step 2 provides that the Shop Committee may then present the written grievance to the Plant Superintendent who must meet with the Committee and give his written answer within four working days. Step 3 provides that the Shop Committee may request a meeting with the Director of Personnel within four days after receiving the written answer required in Step 2. The Director of Personnel shall hear the grievance and give his answer within ten days. Step 4 provides that within fifteen days after receipt of the answer required in Step 3, the grieving party may submit the grievance to arbitration by serving notice to the other party and submitting a letter of intent to arbitrate to the Federal Mediation and Conciliation Service.

 The merits of Best's contention are not before this court and only brief reference will be made thereto in outlining the steps taken by the defendants in their attempted invocation of the grievance procedure.

 On October 1, 1959, upon Best's application, he was granted a sick leave. After some correspondence involving Best's physical condition and a discussion between Best and the personnel director of the plaintiff, his employment was terminated by a writing, entitled 'Employee's Release' dated May 8, 1961, signed by a foreman and the superintendent of the employer. The reason given for such release was 'Failure to return to work at termination of sick leave'. The above notice or release was mailed to Best and a copy thereof given to the Union. Best was at that time in Florida and he did not receive the notice until the latter part of the month of May 1961.

 Upon receipt of the notice, or within three days, Best protested the action taken apparently by oral discussion with the employer and 'through' the Union. He also made an unsuccessful effort to interview the superintendent of the Black Company relative to the action. He made no effort to contact his foreman but it is apparent that the above action was considered by Best as the first step in the procedure outlined in the bargaining agreement for the presentation of a grievance and the ultimate determination thereof.

 On June 12, 1961, a conference was held at the office of the employer which was attended by Best, a representative of the Union, and the representatives of the employer. It is apparent that the grievance relative to Best's discharge was discussed and 'the grievance was denied'. Defendants contend that such conference satisfied the requirements of the second step in the outlined procedure.

 Best then attempted to take the third step in the grievance procedure by filing a written grievance form, signed by a steward and himself, with the employer on June 14, 1961. On June 21, 1961, the employer, through its personnel director, gave its answer to the president of the Union by letter, the body of which is in the following language --

 'This is in answer at the Third Step to Grievance No. 00628 instituted by Theodore Best. 'The Grievance is denied. Management's action, which the Union is protesting, has not violated the Contract and further, this Grievance is untimely.'

 On July 5, 1961, Best mailed to the employer a letter invoking Step 4 of the grievance procedure and requested arbitration of the grievance involved. It is sufficient to say that the employer thereafter indicated that it was not agreeable to arbitration and that the Federal Mediation and Conciliation Service on two occasions thereafter declined to proceed in the matter.

 On August 21, 1961 a letter was written to the Federal Mediation and Conciliation Service, signed by the employer, and the Union, in effect advising that they construed the collective bargaining agreement, insofar as the grievance procedure was concerned, as permitting the requested arbitration only by either of the parties to the agreement; that is, the employer and the Union, and not by an individual member of the Union.

 Under date of October 3, 1961, the Union, by a writing addressed to the employer, requested that the Union and the employer agree mutually to submit the grievance of Mr. Best to arbitration. The request was refused under date of October 10, 1961.

 Plaintiff invokes the provisions of the Labor Management Relations Act of 1947, 29 U.S.C. 185, and the Declaratory Judgment Act, 28 U.S.C. 2201 and has commenced this action to declare the rights of the litigants in the matter of the requested arbitration of the grievance involved. Each of the defendants has separately answered the complaint. The plaintiff has moved for a summary judgment, the motion being based upon the pleadings and an affidavit with exhibits attached. The defendants have cross-moved for summary judgment directing that the employer be required to arbitrate said grievance and has also submitted a supporting affidavit. None of the litigants questions the jurisdiction of the court and all litigants appear to take the position that no material fact question is involved. The motions have been argued; briefs have been filed and the matter is before the court for decision.

 Defendants' contentions seem to have two facets -- (1) that Best, as an individual member of the Union, may and has legally invoked the grievance procedure in accordance with the bargaining agreement so as to require that the employer submit the grievance to arbitration; (2) that Best, as an individual, has presented his grievance to the employer for adjustment under the provisions of Section 9(a) of the Labor Management Relations Act, 29 U.S.C. 159(a) and is entitled to require and has legally invoked the processing thereof in accordance with the procedure provided in the bargaining agreement. The plaintiff asserts that Best has no legal right under the agreement to enforce the grievance procedure. Plaintiff further contends that even if it be considered that Best ...

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