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JENNINGS v. WESTINGHOUSE ELEC. CORP.

March 15, 1968

Paul Jennings, Plaintiff,
v.
Westinghouse Electric Corporation, Defendant. International Union Of Electrical, Radio And Machine Workers, AFL-CIO, Petitioner, v. Westinghouse Electric Corporation, Respondent


Bryan, District Judge.


The opinion of the court was delivered by: BRYAN

BRYAN, District Judge.

These are consolidated suits to compel arbitration pursuant to Section 301(a) of the Labor Management Relations Act. *fn1" The issue raised is whether the defendant-respondent, Westinghouse Electric Corporation (the Company) may be compelled to arbitrate some 65 grievances raised by the plaintiff-petitioner, International Union of Electrical, Radio & Machine Workers, AFL-CIO (the Union).

 Westinghouse is a Pennsylvania corporation. The Union is an unincorporated labor association with chartered locals in a number of states. The grievances with which we are concerned here arose at 12 different Westinghouse plants. Following exhaustion of contract grievance procedures, the Company refused the Union's requests for arbitration.

 The Union commenced suit in the New York Supreme Court seeking judgment directing Westinghouse to arbitrate 52 of these grievances and the action was removed by the Company to this court. Subsequently the Union commenced a suit in this court to compel arbitration of 13 other grievances which arose under the same agreement. The two suits were consolidated.

 The Union has moved for judgment on the pleadings or for summary judgment in the removed suit and for an order to compel arbitration in the action commenced in this court. Westinghouse seeks summary judgment in both cases.

 The sole issue before the court is the arbitrability of the disputes.

 The guidelines for the federal courts in determining whether a grievance is arbitrable under a collective bargaining agreement were clearly set forth by the Supreme Court in the familiar Steelworkers trilogy. See United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 4 L. Ed. 2d 1403, 80 S. Ct. 1343 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960).

 Given a valid agreement to arbitrate, "an order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." United Steelworkers of America v. Warrior & Gulf Navigation Co., supra 363 U.S. at 582-583.

 The parties may agree to exclude a particular grievance from arbitration. But "in the absence of any express provision excluding a particular grievance from arbitration * * * only the most forceful evidence of a purpose to exclude a claim from arbitration can prevail * * *." This is particularly true where "the exclusion clause is vague and the arbitration clause quite broad." United Steelworkers of America v. Warrior & Gulf Navigation Co., supra 363 U.S. at 584-85.

 These principles carry out congressional policy "in favor of settlement of disputes by the parties through the machinery of arbitration." Id. at 582.

 In determining arbitrability the courts are not concerned with the merits of the grievance. They "have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim." United Steelworkers of America v. American Mfg. Co., supra 363 U.S. at 568.

 The only question before the court is whether upon application of the trilogy principles to the arbitration agreement before it, the parties can be said to have agreed to submit the particular grievance to arbitration.

 These principles have been applied in a wide variety of factual situations. See, e.g., Camden Indus. Co., Inc. v. Carpenters Local 1688, 353 F.2d 178 (1st Cir. 1965); Communication Workers of America v. Bell Tel. Laboratories, Inc., 349 F.2d 398 (3d Cir. 1965); Los Angeles Paper Bag Co. v. Printing Specialties & Paper Products Union, 345 F.2d 757 (9th Cir. 1965); Desert Coca Cola Bottling Co. v. General Sales Drivers Local 14, 335 F.2d 198 (9th Cir. 1964); Communications Workers of America v. New York Tel. Co., 327 F.2d 94 (2d Cir. 1964); Local 787, IUE v. Collins Radio Co., 317 F.2d 214 (5th Cir. 1963); Carey v. General Electric Co., 315 F.2d 499 (2d Cir. 1963), cert. denied, 377 U.S. 908, 12 L. Ed. 2d 179, 84 S. Ct. 1162 (1964); Procter & Gamble Ind. Union etc. v. Proctor & Gamble Mfg. Co., 312 F.2d 181 (2d Cir. 1962), cert. denied, 374 U.S. 830, 10 L. Ed. 2d 1053, 83 S. Ct. 1872 (1963); Radio Corp. of America v. Ass'n of Professional Engineering Personnel, 291 F.2d 105 (3d Cir.), cert. denied, 368 U.S. 898, 82 S. Ct. 174, 7 L. Ed. 2d 93 (1961); Order of Repeatermen, Local 1011 v. Bell Telephone Co., 254 F. Supp. 462 (D. Nev. 1966); Sidney Wanzer & Sons, Inc. v. Milk Drivers Union Local 753, 249 F. Supp. 664 (N.D. Ill. 1966).

 The 1963 collective bargaining agreement between Westinghouse and the Union contains an unusually complex and lengthy section on arbitration. *fn2" The section begins with a very broad promise to arbitrate:

 
"Any grievance which remains unsettled after having been fully processed pursuant to the provisions of Section XIV, and which 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,
 
may be submitted to arbitration upon written request of either the Union or the Company * * *." Section XIV-A(1).

 Paragraph 4 then goes on to state what is described as the agreement of the parties "in the consideration and decision of any question involving arbitrability."

 First, grievances are divided into two categories - those subject to arbitration as a matter of right and those subject to arbitration only by mutual agreement. Arbitration as a matter of right is covered by Paragraph 6 which begins by stating:

 
"(a) Arbitration as a matter of right includes only requests to arbitrate which involve:
 
i Disciplinary action (including discharge) but with certain exceptions spelled out in this Section;
 
ii The claimed violation of a specific provision or provisions of the National Agreement (with the limitations and exceptions set out in this Section);
 
iii The claimed violation of a provision or provisions of a signed local non-wage supplement entered into in accordance with Section XVIII, Paragraph 2 of this National Agreement."

 However, Paragraph 6 goes on to say that a request for arbitration under Section XIV-A is not arbitrable as of right unless it "(alleges) a direct violation of the express purpose of the contractual provision in question, rather than of an indirect or implied purpose." Section XIV-A, 6(b). *fn3"

 Paragraph 7 covers matters which are subject only to voluntary arbitration. Its introductory language states generally that "requests for arbitration which are not subject to arbitration as a matter of right under the provisions of Paragraph 6 * * * are subject only to voluntary arbitration." Paragraph 7 then goes on to list 12 categories of arbitration requests, which "it is specifically agreed * * * shall be subject only to voluntary arbitration, by mutual agreement * * *."

 The categories listed in Paragraph 7 are of different kinds. Some of them are expressed in very general terms and refer to neither particular contractual provisions nor to specific subject matter. For example, subdivision (c) of Paragraph 7 covers grievances that "involve claims that an allegedly implied or assumed obligation of this National Agreement has been violated." Other subdivisions of Paragraph 7 refer to grievances which arise under specific sections of the National Agreement. Thus, under 7(d) grievances are subject only to voluntary arbitration if they "involve claims that Section I [Recognition] or Paragraph 3 of Section IV [Discrimination] of this National Agreement has been violated." *fn4" Other subdivisions of Paragraph 7 deal with grievances which "would require an arbitrator to consider, rule on or decide" a variety of issues including "the elements of an employe's job assignment," (7(f)(i)), and "the right of management to assign or reassign work or elements of work." (7(f)(iii)). *fn5" Provisions such as these, while dealing broadly with subjects covered by the National Agreement do not focus upon specific provisions of the National Agreement. *fn6"

 Paragraph 4 also states that in considering any question of arbitrability "This agreement sets out expressly all the restrictions and obligations assumed by the parties, and no implied restrictions or obligations inhere in this agreement or were assumed by the parties in entering into this Agreement." (4(b)(iii)). This paragraph also contains a broad management rights provision, which states in part that grievances challenging "action taken by the Company in the exercise of any such rights" are not arbitrable as of right "except where such challenge is based upon a violation of * * * express limitations (other than those set out in Paragraph 7 * * *)." (4(b)(iv)).

 Finally Paragraph 4(b)(v) states that "no matter will be considered arbitrable unless it is found that the parties clearly agreed that the subject involved would be arbitrable in light of the principles of arbitrability set forth in this Section" and that neither court nor arbitrator "may proceed under any presumption that a request to arbitrate is arbitrable."

 Thus we have in this collective bargaining agreement an arbitration section, Section XIV-A, containing broad arbitration provisions in Paragraphs 1 and 6, which deal respectively with general arbitrability and arbitration as of right. These broad provisions are hedged about with a variety of restrictive provisions, some general, some specific and many obscure and confusing. The Company claims that the force of Steelworkers trilogy principles has been attenuated, if not rendered inapplicable, by the intent of the parties expressed in these provisions, and that each of the 65 grievances presented is barred from arbitration by express exclusions or restrictions of the right of arbitrability.

 The problem with respect to each of the 65 individual grievances presented here is to determine first whether the grievance presents an arbitrable issue under the broad language of the agreement granting arbitration generally and as of right. Secondly, if the grievance falls within this language the question is then whether any of the other provisions of the arbitration section can be said to have the effect of excluding that grievance from arbitration.

 In approaching these problems due consideration must be given both to the intent of the parties as expressed in the collective bargaining agreement and the duty of the court to effectuate "the preference of national labor policy for arbitration as a substitute for tests of strength between contending forces." *fn7"

 These questions must be resolved in the light of the trilogy principles applied both to the arbitration section viewed as a whole and to such particular restrictions and exclusions as may affect the arbitrability of the particular grievance.

 With these general standards in mind I turn to the arbitrability of the specific grievances involved here.

 1. National Appeal Grievances Nos. 7406-I, 7407-I, 7410-I (Springfield, Massachusetts) and 8231-C (Columbus, Ohio).

 These grievances arising at different plants all present the same basic issue. Three of them, Nos. 7406-I, 7407-I and 7410-I stem from a decrease in the working force in Springfield, Massachusetts. The fourth, 8231-C, involves a request to transfer and an increase in working force at the Columbus, Ohio, plant.

 The applicable provisions of the National Agreement are found in Section XII, Seniority.

 
"F. Decrease in Working Force.
 
* * *
 
2. It is understood and agreed that in all cases of layoffs due to decreasing forces, accumulated length of service will govern, and employes will be permitted to displace other employes only if the employe can perform the duties of the job with only such training as an employe with previous experience on such jobs would require.
 
* * *
 
"G. Increase in Working Force - Transfers and Upgrading.
 
In all cases of transfers and upgrading to fill open jobs, accumulated length of service will govern if the employe's experience, although not necessarily on the same type of work, indicates that he can do the job. The filling of open jobs from the Inactive Seniority List will follow the provisions contained in local supplements provided the employe can do the job with only such training as an employe with previous experience on such job would require.
 
* * *
 
"K. Details and Procedures.
 
Local supplements will cover the details of the above provisions * * *."

 The essence of the Union's claims is that the actions of the Company violated the quoted provisions of the National Agreement and the applicable Springfield and Columbus local supplements covering the details of the provisions respecting decrease and increase in working force under Section XII-K.

 The Company's position is that the dispute is not arbitrable under XIV-A-7(h) because it involves "claims of violation of Paragraphs F. and G. of Section XII, in locations in which a local seniority supplement has not been signed in accordance with Paragraph K. of Section XII."

 This position is based on correspondence between the Company and the Union with regard to the Union's request to arbitrate these grievances. The requests to arbitrate mentioned only Section XII-F(2) of the National Agreement. When the Union was asked by the Company whether the request involved a claim of violation of the National Agreement where a local seniority supplement had not been signed in accordance with Section XII, the Union replied that there were signed local supplements, but that it believed that the supplements abridged the National Agreement "in many of its provisions." *fn8" These grievances involve claimed violations of Section XII-F and G of the National Agreement and in each instance there appears to be no doubt that a local supplement was signed as the Company must have well known.

 Since it is perfectly clear that a local supplement has been signed, the key to the resolution of these grievances lies in the meaning of the words "in accordance with Paragraph K of Section XII." Although Section XIV-A-7(h) says nothing about the effect of a claimed inconsistency upon arbitrability, the Company attempts to convert a claim of inconsistency by the Union into a concession that a local supplement has not been signed in accordance with XII-K. There is no basis for such a reading.

 All the Union has done is to express the view that certain provisions of the local supplements conflict with the National Agreement. Section XIV-A nowhere excludes arbitration on the basis of such a claim. The fact that the Union has made such a claim cannot be said to mean that in fact a local supplement "has not been signed in accordance with Paragraph K. of Section XII."

 These grievances are arbitrable.

 2. National Appeal Grievance No. 6969-U *fn9" (Sharon, Pennsylvania).

 National Grievance No. 6969-U claims that the Company unjustly discharged the grievant from work at the Sharon, Pennsylvania, plant and thereby violated the National Agreement. The Union makes the following statement of the circumstances.

 The last day on which the grievant worked was November 15, 1963. After he was absent for seven consecutive working days without reporting his absence, the Company removed him from the active roll, effective November 15, 1963. The Company rejected the Union's request that the employee be returned to the active rolls, a request grounded upon "the extenuating circumstances regarding his unreported absence." *fn10" The Union contends that the grievance alleges discharge without just cause and is arbitrable as of right under Section XIV-A-(1) and XIV-A-6(a)(i).

 Section XIV-A-1 states:

 
"Any grievance which remains unsettled after having been fully processed pursuant to the provisions of Section XIV, and which involves * * *
 
(b) a disciplinary penalty (including discharge) * * * which is alleged to have been imposed without just cause may be submitted to arbitration."

 Section XIV-A-6(a) then states:

 
"Arbitration as a matter of right includes * * * requests to arbitrate which involve:
 
(i) Disciplinary action (including discharge) but with certain exceptions spelled out in this Section * * *." *fn11"

 The Company argues that the grievance does not involve a discharge for cause. It states that plant rules at Sharon provide that unreported absence of more than seven consecutive working days will be considered as a quit without notice, that the grievant was absent without giving the Company the required notice and that he therefore was deemed a "quit without notice." It is the Company's position that since there was no discharge, but rather a quit, the grievance involves the obligation of the Company to rehire a former employee, a matter not dealt with in the collective bargaining agreement and one which is therefore subject only to voluntary arbitration.

 A resolution of the issue posed by the Company would, contrary to the teaching of the trilogy, involve a determination by the court of the merits of the parties' competing claims. Section XIV-A-1 and 6(a)(i) provides for the arbitration as of right of grievances involving a claim of discharge without just cause.

 Here, the Union makes such a claim; the Company denies that there was any disciplinary penalty imposed at all. The Union's claim clearly raises an arbitrable issue, and nothing in either the contract itself or the arbitration clause restricts the availability of arbitration to cases in which it is conceded that a discharge has taken place. There is no definition in either the Sharon Local Supplement or the National Agreement of "discharge" nor is there any reference to plant rules. The effect of a local plant rule on the dispute is for the arbitrator and not for the court. Moreover, whether or not a grievance turns out to be frivolous does not go to the question of its arbitrability. See IUE v. Westinghouse Electric Corp., 228 F. Supp. 922 (S.D.N.Y. 1964).

 I hold that this grievance is arbitrable as of right.

 3. National Appeal Grievances Nos. 7266-I and 7267-I (Cleveland, Ohio).

 These two grievances arose out of a single set of facts. The Company in December 1964, without a Union representative being present, asked certain employees whether they were interested in working during their vacation period for wages in addition to vacation pay and they did so.

 National Grievance No. 7266-I claims that the Company bypassed the Union and dealt with the employees individually in violation of Section I - the recognition provision of the National Agreement. The Company contends that this grievance is excluded from arbitration as of right by Section XIV-A-7(d) which provides that there shall be voluntary arbitration only of requests for arbitration that "involve claims that Section I * * * of this National Agreement has been violated." This exclusion is a blanket one, similar to that found in Communications Workers of America v. New York Tel. Co., 327 F.2d 94 (2d Cir. 1964), and it effectively excludes from arbitration a claim based on a violation of Section I. Since Grievance 7266-I, based as it is solely on Section I, is expressly excluded from arbitration by the clear and unambiguous language of Section XIV-A-7(d) it is not arbitrable as of right.

 Related grievance 7267-I claims that under Section XI-B(5) and (7) *fn12" of the National Agreement the Company is required to give all employees vacation time and that by granting the employees vacation pay in lieu of vacation time, violated Section XI, Paragraphs B-5 and B-7 of the collective bargaining agreement relating to vacations. The Company contends that this grievance is not arbitrable on the grounds that (1) it does not allege that there has been a direct violation of an express purpose of Subparagraphs B-5 and B-7 of Section XI, and therefore is not arbitrable under XIV-A-6(b), and (2) it is based at best on an implication which the Union finds in these provisions and therefore is excluded from arbitration by XIV-A-7(c) as a grievance involving a claim that an allegedly implied or assumed obligation of this National Agreement has been violated. Its claim is that Subparagraphs B-5 and B-7 prescribe standards for determining whether an employee is entitled to a vacation, and are not addressed to the question of whether an employee entitled to such vacation may choose to work.

 Here the Union's claim goes to the meaning of the term vacation, when it is used in the paragraph. Whether or not there has been a violation of these provisions in any instance must depend initially on the definition of this term. The Company, assuming its conclusion - that is, that the terms "vacation" and "vacation pay" are synonymous - contends that the provisions do not deal with the question of whether an employee entitled to a vacation may choose to work and that the grievance concerns the violation of an implied obligation. But this begs the question which is simply what the term "vacation" means. The grievance raising this issue is not within the "implied obligation" exclusionary clause. *fn13"

 I hold that grievance No. 7267-I is subject to arbitration as of right.

 4. National Appeal Grievances Nos. 7331-U, 7357-U, 7359-U, 7460-U, 7716-I (East Pittsburgh, Pennsylvania).

 Each of these five grievances claims violation of Section XI-B-5(a) and 6 of the National Agreement relating to vacations. *fn14"

 While the grievants were on the disability roll they were given vacation pay for a period during which the disability benefits otherwise payable were suspended. It is claimed that these employees should have received their regular vacations earned in addition to and not in lieu of the sickness and accident benefits they were entitled to for disability.

 The Union claims the Company violated the vacation provision of the contract when it required the employees to take their vacations with pay while on disability leave.

 The Company contends that these grievances are unrelated to the vacation provisions of the agreement on which the Union relies since they do not question the fact that vacation pay was received by the employees. Moreover, it says the Union's position is "that the Company should be precluded from granting such vacation pay while employes are on the disability rolls." *fn15"

 The Company apparently misapprehends the Union's position. The question here is not whether vacation pay was received, as it concededly was, but whether the action of the Company deprived the employees of the vacations to which they were entitled under the vacation provisions of the contract by forcing them to take such time while they were on sick leave.

 The vacation provisions which the Union claims were violated must be interpreted by the arbitrator so that the definition of the term "vacation" may be determined.

 Thus, the Company's contention that these grievances are excluded from arbitration as of right because they do not "allege a direct violation of the express purpose of the contractual provision in question * * *" (subparagraph 5(b)) is not well taken. *fn16"

 The Company further urges that what is really involved here is an attempt by the Union to gain benefits under the Company's insurance plan in addition to the vacation pay received. It claims, therefore, that these grievances are excluded from arbitration as of right by Section XIV-A-7(i), which precludes such arbitration if the requests

 
"(i) Pertain in any way to the establishment, administration, interpretation or application of Insurance, Pension or other Benefit plans in which employes covered by this Agreement are eligible to participate. * * *."

 In my view this provision does not foreclose arbitration of these grievances as of right. No provision of insurance or other benefit plans has been called to the court's attention which touches on the right to vacations which the employees claim was violated.

 The question to be arbitrated is whether the employees were deprived of their vacation rights, not whether they were entitled to disability benefits. Whether or not the employees should have been compelled to use up their vacation period while on disability leave is dependent on the interpretation given by the arbitrator to the vacation provisions of the agreement and does not relate to the Insurance benefits provision. These grievances do not pertain to "the ...


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