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May 14, 1964

The PROCTER & GAMBLE MFG. CO., Defendant

The opinion of the court was delivered by: RAYFIEL

The plaintiff, a labor union, brings this action under Section 301 of the Labor Management Relations Act (Section 185 of Title 29 U.S.C.) to compel the defendant to arbitrate two disputes or grievances pursuant to a collective bargaining agreement dated June 23, 1960. The disputes involved Robert Spittel and Frank Wilson, employees of the defendant.

My colleague, Judge Bartels, granted the plaintiff's motion for summary judgment requiring the defendant to arbitrate the Wilson dispute and denied the motion as to the Spittel dispute. See 195 F.Supp. 64. The defendant appealed from the decision in Wilson which was affirmed. See 298 F.2d 647. The plaintiff did not appeal from the order denying its motion in Spittel and that matter was tried before me.

These are the facts:

 On January 22, 1950 Procter & Gamble Independent Union of Port Ivory, New York, was certified by the National Labor Relations Board (the Board) as the collective bargaining representative for the defendant's production and maintenance employees at its factory at Port Ivory, in Staten Island, Richmond County, New York. This unit consisted of all production and maintenance employees, including factory clericals, laboratory employees, and fire inspectors. Excluded were office clerical employees, who composed a separate unit represented by the same union and recognized by the defendant.

 Subsequent to the certification separate collective bargaining agreements, identical except for the employees covered thereby, were entered into for each of the said units. The last of those was entered into on June 23, 1960. Since they are identical in terms I shall refer to both of them as 'the contract.'

 Spittel, employed as a factory clerical employee, was also active in the affairs of the union as a shop steward. In 1960 a vacancy occurred for the position of cost clerk, a category higher than 'factory clerical', the one in which Spittel was then employed. Under the terms of the contract all employees who had the necessary seniority and qualifications were eligible to 'bid' on this job. Spittel was one of the bidders and was selected as the employee with most seniority among those qualified for the position.

 He was assigned to the new position on September 8, 1960, but for some five weeks thereafter was not given the increase in salary to the minimum rate of pay for that position because, the defendant contended, he required training and supervision during that period to qualify him to carry out his duties properly. In support of its contention it cited Article III, Section 5, paragraph 3 of the contract which provides that:

 'Any employee taking a new job classified at a higher rate than his former job shall receive at least the minimum job rate for the new job when he is able to handle the job. An employee will be conclusively presumed to be able to handle the job when he is able to perform, and does perform, all the duties of the job satisfactorily by himself without special supervision.' (Emphasis mine).

 Upon the employer's failure to pay him the minimum rate of pay for his new position Spittel filed a grievance for 'Violation of past practices and agreements, and discrimination against a union official.'

 The grievance procedure is outlined in Article XI of the contract. A grievance is therein defined as 'any difference between the employer and union, or employee or employees covered by this agreement, as to any matter involving the interpretation or application of any provision of the agreement (or any matter directly affecting the employee in respect to hours of work, wages, or conditions of employment).' It provides for three steps involving negotiation between representatives of the union and the employer, and for arbitration as the fourth step if the grievance has not been settled in the prior proceedings. The contract contains a 'no strike' provision, prohibiting the employees from conducting a work stoppage or slowdown etc.

 The Spittel grievance was processed through the first three steps without success. The disagreement is summarized in the resume of the third step contained in defendant's Exhibit 'E,' entitled 'SUMMARY OF MEETING HELD OCTOBER 11, 1960 BETWEEN THE MANAGEMENT AND EXECUTIVE BOARD OF THE PROCTER & GAMBLE INDEPENDENT UNION OF PORT IVORY' as follows:

 'Nature of Grievance: -- Violation of past practices and agreements and discrimination against a Union Official.

 'Company Answer: There was no discrimination against a Union official and no violation of the Contract. It is correct that other people have been transferred into the same job at minimum rate.

 'Union's Position: The Union feels that this employee should be treated as all others were in the past. We feel it is a violation of past practice and agreements and that it ...

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