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INTERNATIONAL UNION OF ELEC.

May 16, 1963

INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, an unincorporated labor organization, Plaintiff,
v.
WESTINGHOUSE ELECTRIC CORPORATION, Defendant



The opinion of the court was delivered by: WEINFELD

This is a motion for summary judgment by the plaintiff Union in an action brought to compel arbitration, pursuant to the terms of a collective bargaining agreement, of twelve grievances filed by the Union on behalf of certain of its members employed at one or more plants of the defendant. After the parties had unsuccessfully exhausted the grievance procedure provided for by the agreement, the defendant refused to submit the disputes to arbitration, contending they were nonarbitrable. The agreement provides that in the event either party challenges that a grievance is arbitrable, the issue is to be determined by a court, and thus the matter is here for determination. *fn1"

The Union contends that the twelve grievances involve either the interpretation, application or violation by the employer of one or more provisions of the collective bargaining agreement and that under its terms the grievances are subject to arbitration. The company not only denies the alleged violations, but asserts that each, upon various grounds, is expressly excluded from the arbitral process by the agreement. In addition, the defendant raises a plea of laches as to four grievances, asserts that as to a fifth an award upholding the Union's position would involve the company in an unfair labor practice, and urges as to a sixth that the National Labor Relations Board has exclusive jurisdiction.

The principles governing labor arbitration under agreements have been delineated in the trilogy of the Steelworkers cases decided in 1960. *fn2" The underlying rationale of those holdings rests upon the federal policy to promote industrial peace through collective bargaining agreements and the recognition that a major factor in achieving that objective is the grievance machinery established by the parties to resolve disputes as part and parcel of the collective bargaining process itself. Although viewed in so favorable a climate, the arbitral process for the resolution of grievances is not imposed by law, but must rest upon a consensual basis. Thus the Court's rule is limited. It has no concern with the merits of any particular grievance. Its sole inquiry is restricted to whether the parties did agree to arbitrate the grievance. The issue is to be decided within the framework of their collective bargaining agreement. And when the parties have entered into a comprehensive arbitration provision, any challenge that a grievance is not intended to be covered thereunder must find support in unmistakably clear language of exclusion; arbitration of a particular dispute is to be ordered unless it may be said with positive assurance that it is excluded by the contract. Whatever doubts exist as to whether the grievance is within the ambit of the arbitral process are to be resolved in favor of coverage. The defendant here contends that it meets the exacting test imposed upon one who challenges arbitration.

 The arbitration clause of the agreement reads as follows:

 'SECTION XIV-A -- ARBITRATION --

 'A. Except as otherwise provided in this Agreement, any grievance involving action taken or failure to act subsequent to March 20, 1956, which remains unsettled after the grievance procedure has been exhausted pursuant to Section XIV and which involves either '(1) The interpretation, application or claimed violation of a provision of this Agreement or of a local supplement in effect in the bargaining unit in which the grievance arose, or '(2) a disciplinary penalty, release or discharge which is alleged to have been imposed without just cause, shall be submitted to arbitration upon the written request of either the Union or the Company. * * *'

 It is to be observed that the arbitration provision quoted above is not limited to the 'interpretation or application' clause often found in labor contracts, but extends to any 'claimed violation of a provision of this Agreement or of a local supplement.' The Union here asserts that each of the twelve grievances constitutes a violation of one or more provisions of the agreement and is arbitrable under subsections XIV-A, A(1) and (2). Claims of alleged violation, whether substantial or frivolous, which are denied are disputes to be resolved by this arbitral process unless it appears beyond peradventure that they are excluded. *fn3"

 The defendant's claim that the grievances are not arbitrable rests in the main upon the following subdivision of the above section:

 'D. Notwithstanding any other provisions of this Agreement, no arbitrator shall, without specific written agreement of the Company and the Union with respect to the arbitration proceeding before him, be authorized to: '(1) Add to, detract from, or in any way alter the provisions of this Agreement or any Supplement or local supplement to this Agreement; '(2) Establish or modify any wage or salary rate, job classification or classification of any employe except as provided in Section VIII, paragraphs 9.D. and 9.E., or any time value under the incentive system; * * *'

 The twelve grievances, although somewhat differently phrased by the parties, fall within general categories. Three involve work assignments; *fn4" two charge that work was performed by workers outside a specified unit; *fn5" two concern changes in time values; *fn6" two allege changes in methods of pay from incentive to day work and vice versa; *fn7" one relates to a seniority claim; *fn8" one to job classification; *fn9" and one to the discharge of an employee -- or, as the company contends, to a refusal to rehire because of physical disability. *fn10"

 The defendant's challenge to four of the grievances, insofar as it advances the plea of laches, may be readily disposed of. Any contention of delay in the presentation and prosecution of grievances is a matter within the competence of the arbitrator if otherwise they are arbitrable. *fn11"

 The defendant's principal contention is that if the arbitrator sustained the Union's grievances, he would in effect be adding to, detracting from or altering the agreement, or establishing or modifying a wage rate, job classification, or time value, and that all these matters are beyond his jurisdiction by virtue of subdivisions D(1) and (2). The Union, on the other hand, not only denies that any of the grievances come within the proscription of those subdivisions, but contends that in any event they do not deprive the arbitrator of jurisdiction, but merely restrict his award-making power.

 Upon a consideration of the provision in question, as well as all others of the agreement advanced by the defendant to support its claim of exclusion, and upon the applicable law, I am of the view that subdivisions D(1) and (2) do not deprive the arbitrator of jurisdiction to pass upon the grievances. The very language of the introduction to the subsection assumes jurisdiction by the arbitrator. Thus, its essence reads:

 'Notwithstanding any other provisions of this Agreement, no arbitrator shall, without specific written agreement of the Company and the Union with respect to the arbitration proceeding before ...


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