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MEDO PHOTO SUPPLY CORP. v. LIVINGSTON

July 13, 1967

Medo Photo Supply Corporation et al., Petitioner,
v.
David Livingston, as President of District 65, Retail, Wholesale and Department Store Union, AFL-CIO, Respondent


Motley, D.J.


The opinion of the court was delivered by: MOTLEY

MOTLEY, D.J.:

Petitioner (the employer) and respondent (the union) entered into a collective bargaining agreement on November 30, 1965. The agreement was not signed until January 25, 1966. This agreement is effective from November 30, 1965 to November 30, 1968.

 The prior collective bargaining agreement between the parties was for a period of two years i.e., December 2, 1963 to November 30, 1965. That old agreement contained a limited wage reopening clause providing for the negotiation of minimum rates for warehousemen in the General Help classification based on the uniform rates established by the union for warehousemen in other unionized establishments. In order to reopen the prior contract on this limited matter, the union was required to give the employer written notice 30 days prior to May 1, 1965. The union did not give notice until July 2, 1965 of its intention to seek an adjustment in the minimum wage of warehouse workers. The employer waived its objection to this late notice and agreed to submit the issue to arbitration after efforts by the parties to settle the issue had failed. Several delays ensued. A hearing was not held until November 15, 1965 before the arbitrator, Irving Halevy. Because a new agreement was about to be negotiated, the employer suggested to Professor Halevy that the parties attempt a resolution of the minor wage issue in connection with bargaining for the new agreement. The arbitrator agreed and the arbitration was postponed. This second attempt to settle the warehousemen's minimum wage also failed, although the parties succeeded in writing the current agreement. The issue was then taken back to Professor Halevy. The question submitted to him was agreed upon on November 30, 1965 and was as follows:

 
"What retroactive wage adjustment, if any, should be paid to the employees for the period from May 1, 1965 to December 1, 1965, by reason of the wage reopening provision of the Collective Bargaining Agreement dated December 2, 1963."

 A hearing on this issue was held on January 26, 1966. An award was not made until March 10, 1966. The new agreement effective November 30, 1965 had been reduced to writing and signed on January 25, 1966.

 Arbitrator Halevy found that: (1) the union had the right to negotiate the minimum rates in question; (2) that he had been given authority to fix these rates effective May 1, 1965 to December 1, 1965. The retroactive wage, so far as relevant here, was established at $97.00 a week for warehousemen with five years experience and was awarded to them for the period May 1, 1965 to December 1, 1965 by Halevy.

 After this award, the employer paid the five affected employees retroactive pay based on the $97.00 minimum for the period May 1, 1965 to November 30, 1965. The employer then paid one of these employees, Gutierrez, $97.25 per week and the other four employees $98.25 per week as of December 1, 1965 as shown on the Schedule attached to the agreement signed on January 25, 1966.

 This dispute centers around these five employees and arises from the fact that at the time the new agreement was completed on November 30, 1965, the issue of their base wage remained unresolved. The new agreement contained a Schedule which listed the employees in the bargaining unit by name and their then current weekly wage. The Schedule then showed what their wage would be on December 1, 1965, December 1, 1966 and December 1, 1967 based upon an agreed upon annual across-the-board wage increase of $4.00 per week on December 1, 1965 and December 1, 1966 and $3.00 per week on December 1, 1967 as follows: SCHEDULE Employees in Weekly Weekly Weekly Weekly Bargaining Unit Wage Wage Wage Wage As Of 11/30/65 12/1/65 12/1/66 12/1/67 Leon Del Francelay $94.25 $98.25 $102.25 $105.25 Joseph Matthews 94.25 98.25 102.25 105.25 Melvin Styles 94.25 98.25 102.25 105.25 Sam Mallia 94.25 98.25 102.25 105.25 Ramon Gutierrez 93.25 97.25 101.25 104.25

 The union protested the employer's action in paying the five employees wages as shown on the Schedule. The union claimed that the base pay of these employees as of December 1, 1965 should have been $101.00 i.e., $97.00, the newly arbitrated minimum, plus the $4.00 across-the-board increase effective for all employees December 1, 1965.

 The disagreement led the union to request arbitration. A printed form, supplied by the American Arbitration Association, requested the union to state the "Claim or Relief Sought". In reply the union wrote: "Failure of the Employer to comply with the terms of the current agreement." The form constituted the required notification to the employer of the union's desire to arbitrate. The employer claims that it tried unsuccessfully to determine the precise grievance prior to the hearing. The Statement of Facts set forth by Arbitrator Lampert, who heard the matter, makes clear, however, that there was a hearing before him on September 21, 1966. At that time, the employer was represented by the same counsel who represents it here. The arbitrator's Statement also reveals that full opportunity was afforded the employer to "testify, otherwise present evidence, cross-examine and present argument." The parties were given 29 days to file briefs after the hearing.

 At the hearing before Arbitrator Lampert, the employer "took the position that there was nothing to arbitrate, that the company was paying according to the Schedule and that the arbitrator, under 14(B), may not amend, modify, alter or subtract from this agreement or any provision thereof" (Lampert Opinion, Exhibit A, to the Petition).

 Arbitrator Lampert, in his opinion ruled, as follows:

 
The Arbitrator must reject the Company's argument. The Union is claiming that the Company is not paying what the agreement calls for and such an issue is arbitrable.
 
The agreement here is quite clear. Paragraph 9(A) grants a wage increase of four dollars to each of the employees on December 1, 1965, 9(B) grants an additional four dollars on December 1, 1966 and 9(C) grants a third increase of three dollars on December 1, 1967.
 
Paragraph 9(F) states that the schedule attached to the agreement lists the names of the employees, their wages as of November 30, 1965 and the weekly wages each was to receive 'on December 1, 1965, and ...

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