The opinion of the court was delivered by: WYATT
This motion is by plaintiff, the representative of an employer, for an order directing defendant Union to arbitrate a 'grievance' said to arise under a collective bargaining agreement. The motion is recited to be under Section 301(a) of the Labor Management Relations Act, 1947 (29 U.S.C. § 185(a); part of the 'Taft-Hartley Act') and under the United States Arbitration Act (9 U.S.C. § 1 and following).
The action is for the same relief as is asked on this motion. Plaintiff duly filed his complaint herein and shortly thereafter the present motion followed. Defendant joined issue by answer and has filed an affidavit opposing this motion.
The facts do not appear to be in dispute.
Plaintiff is the Treasurer of an unincorporated association of the publishers of the principal newspapers in the City of New York, including the corporation which publishes the 'New York Journal-American'. (The spelling 'Pock' for plaintiff in the complaint and summons prevails over the spelling 'Poch' in the motion papers.)
Under New York law, the president or treasurer of an unincorporated association may maintain an action for it (General Associations Law, McKinney's Consol.Laws, c. 29, § 12). Plaintiff evidently relies on this authority, coupled with Fed.R.Civ.P. 17(b); the action is not in the 'common name' of the association under Fed.R.Civ.P. 17(b)(1).
Defendant is a labor organization representing those engaged in typographical work in the composing rooms of the newspapers. It is not questioned that such an organization may be sued in this Court as an 'entity' since it represents 'employees in an industry affecting commerce'. 29 U.S.C. § 185(b); Macneish v. N.Y. Typographical Union No. 6, 205 F.Supp. 558 (S.D.N.Y.1962). This was assumed in Publishers' Ass'n. of New York City v. New York Mailers' Union Number Six, 317 F.2d 624 (2d Cir. 1963).
On December 8, 1962 -- a time when there was no collective bargaining agreement in effect between the parties -- the Union called a strike against some of the major newspapers in New York, including the Journal-American. On that date, a representative of the Union ordered 'off the floor' the General Foreman (hereafter 'Foreman') of the composing room of the Journal-American. There is some difference as to the details of what happened next after the order but the difference is of no significance here; at least, the Foreman did not immediately leave the Journal-American building.
On December 26, 1962, the representative of the Union filed with its President a complaint against the Foreman charging the latter with a violation of Article V, Section 1, of the By-Laws of the International Typographical Union (the parent of the defendant local Union) in that he allegedly 'committed a disreputable act and conduct unbecoming a Union man'.
On December 31, 1962, the Foreman was notified by the Union President of the complaint and told that it had been referred to the 'Discipline Committee' from which he would hear in due course.
All the events above took place when there was no collective bargaining agreement between the parties.
Thereafter, the plaintiff association and defendant Union made a collective bargaining agreement (the 'contract'); this contract is effective from March 31, 1963 to March 31, 1965 and its execution ended the strike.
The plaintiff association is for convenience referred to as the 'Employer' and the defendant Union as the 'Union'.
Section 5 of the contract provides, among other things:
'The operation, authority, and control of each composing room shall be vested exclusively in the office through its representative, the general foreman, who shall be a member of the Union.' ...