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January 26, 1968


Weinfeld, District Judge.

The opinion of the court was delivered by: WEINFELD

WEINFELD, District Judge.

The plaintiff Union moves for summary judgment in this action commenced by it pursuant to section 301 of the Labor Management Relations Act of 1947 *fn1" to compel, pursuant to the terms of collective bargaining agreements with the defendant, arbitration of eight grievances. *fn2" The grievances arose at four different plants of the defendant where Locals chartered by the plaintiff represented the employees. The grievances were processed at the Local level under the grievance procedure provided for by the National Collective Bargaining Agreements, but remained unsettled and the defendant refused arbitration. Two of the grievances arose during the existence of the 1960 Agreement, which continued in effect until September 29, 1963; the remaining six arose under the succeeding agreement, referred to as the 1963 Agreement. The plaintiff asserts that each grievance involves the interpretation or application of one or more provisions of those Agreements or a disciplinary penalty imposed by the defendant, and hence is arbitrable under the applicable National Agreement. The defendant resists arbitration upon the ground that each grievance is beyond the reach of the applicable Agreement - that each is specifically and expressly excluded from the arbitral process. As to one item, in addition to non-arbitrability, the defendant contends that the issue involved therein was resolved in its favor by the National Labor Relations Board, and consequently arbitration is foreclosed as a relitigation of an adjudicated issue.

 The parties are in accord that no issue of fact is raised and that the matters presented are ripe for disposition under the summary judgment rule.

 The applicable law is clear and is governed by the trilogy of the Steelworkers' cases decided in 1960. *fn3" As this court summarized the doctrine of those cases:

"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 role 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." *fn4"

 Defendant claims, as we shall see, that, at least as to the grievances asserted under the 1963 Agreement, the force of this doctrine has been attenuated - if not rendered inapplicable - by the express intent of the parties. Thus, we approach each individual contested grievance, mindful of both the duty to recognize the contractual intent of the parties and the duty to effectuate the "preference of national labor policy for arbitration as a substitute for tests of strength between contending forces." *fn5"

 The 1960 Agreement

 The 1960 Agreement, which covers two grievances, provides for arbitration of any grievance that remains unsettled after having been processed through an initial three-step grievance procedure, and involves either:

"(a) the interpretation or application of a provision of this Agreement, or
(b) a disciplinary penalty (including discharge) * * * which is alleged to have been imposed without just cause." (Article XV, section 1)

 The Agreement further provides that:

"* * * [No] arbitrator shall have any authority to add to, detract from, or in any way alter the provisions of this Agreement."

 and that

"* * * [No] arbitrator shall have the authority to establish or modify any wage, salary or piece rate, or job classification, or authority to decide the appropriate classification of any employee. * * *" (Article XV, sections 3(a), (b))


 [Polizotti - Local 201, Lynn, Mass.]

 Polizotti is a toolmaker who applied for one of two open diemakers' positions. The wage rates for the two jobs were the same. The position required diemaking experience. After interviewing Polizotti and other employees, management concluded that while Polizotti had some die repair experience, his diemaking background was virtually nonexistent. Two employees, less senior to Polizotti, but who management decided had more experience, were given the positions. A grievance complaint on Polizotti's behalf was prosecuted without success. The demand for arbitration followed.

 Article VI, section 5(c)(4) provides:

"The company will, to the extent practical, give first consideration for job openings and upgrading to present employees when employees with the necessary qualifications are available. In upgrading employees to higher rated jobs, the Company will take into consideration as an important factor, the relative length of continuous service of the employees who it finds are qualified for such upgrading."

 The plaintiff's position is that the available diemaker's position was a "job opening" within the contemplation of the above provision, and the defendant's refusal to grant it to Polizotti constituted a violation. The defendant urges, to the contrary, that it is inapplicable; that the job involves neither a "job opening" which, in its view, applies only to present employees vis-a-vis new employees, nor an "upgrading," but only a lateral transfer without monetary gain, since the rates were the same; that consequently management's refusal to grant Polizotti's request was not a violation of the Agreement.

 The plaintiff, apart from its "job opening" contention, asserts that the diemaker classification was an "upgrading" by reason of advantages which that position offered. In substance it is claimed that Polizotti, had he obtained the diemaker's position, would have been in an advantageous position, since, in the event of layoffs due to lack of work, a toolmaker without diemaking experience cannot bump a diemaker. This upgrading contention appears to be a rather weak reed upon which to rely, *fn6" but whatever its merits or the relative positions of the parties on the issue of "job opening," their very contentions center about the "interpretation or application of a provision of this Agreement"; accordingly, the grievance is subject to arbitration under Article XV, section 1(a).


 [Barbara Papagelis - Local 201, Lynn, Mass.]

 Preliminarily, an issue is raised as to whether the 1960 or 1963 Agreement applies to this claim. The plaintiff contends that the grievance arose under and is governed by the 1960 Agreement, which continued in effect until September 29, 1963. The defendant concedes that "initially it arose under the 1960 Agreement," but urges the 1963 Agreement governs because after the grievance procedure failed to resolve the matter, the request for arbitration had been made under the sixty-day provision of the 1963 Agreement *fn7" rather than under the thirty-day provision of the 1960 Agreement, emphasizing that a sixty-day request under the latter Agreement would have been untimely.

 The grievance arose, the operative facts occurred and it was processed during the existence of the 1960 Agreement; accordingly, its provisions are applicable. The fact that the request for arbitration was not submitted within thirty days after the final decision as stipulated under the 1960 Agreement did not bring the 1963 Agreement into play. The defendant's failure to object that the notice was untimely under the 1960 Agreement may have constituted a waiver; in any event, if the grievance is subject to arbitration, the issue of untimeliness is procedural and is for determination by the arbitrator. *fn8" Accordingly, we turn to the question of the substantive arbitrability of this grievance under the 1960 Agreement.

 Due to lack of work at defendant's Lynn, Massachusetts plant, Barbara Papagelis was laid off on May 16, 1963. She had then worked there over three years. She contended that any one of three other employees should have been laid off first. These employees had not worked at the Lynn plant as long as Miss Papagelis - in fact, they were employed there only about nine weeks. However, respectively, they had twelve (12), thirteen (13) and twenty-seven (27) years service with the defendant, mainly at the East Boston, Massachusetts plant, where the employees had been represented for collective bargaining purposes by a union other than the plaintiff union. The East Boston plant was closed in March 1963; the employees there, including the three in question, were transferred to the Lynn plant; the defendant gave them credit for their years of service at the East Boston plant, which gave them greater seniority than Miss Papagelis.

 The Union contended that the laying off of Miss Papagelis on the basis of recognition of the accumulated continuous service of the three employees was in violation of Articles VIII and XI, which govern, respectively, continuity of service and layoffs, and the Preamble to the Agreement. The Preamble includes Local 201 (the Lynn, Massachusetts plant Local) as one of the local unions on whose behalf the plaintiff acted in entering into the National Agreement.

 Article XI provides:


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