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IN RE SHEET METAL CONTRS. ASSN. OF NEW YORK CITY

June 25, 1969

Matter of Arbitration Between Sheet Metal Contractors Association of New York City, Inc., and Mechanical Contractors Association of New York, Inc., Petitioners,
v.
Local Union No. 28 of Sheet Metal Workers International Association of Greater New York, Respondent


Motley, District Judge


The opinion of the court was delivered by: MOTLEY

MOTLEY, District Judge:

Petitioners move this court for an order confirming two awards made by an impartial arbitrator pursuant to the provisions of a collective bargaining agreement (the agreement) between petitioners (the employer associations) and the respondent (the union). *fn1" The motion is granted and the awards are confirmed.

 The union opposed confirmation of the awards on three grounds: (1) the arbitrator exceeded his power in making the awards; (2) the arbitrator so imperfectly executed his power that a final and definite award upon the subject matter submitted was not made; and (3) the awards and the proceedings were contrary to the applicable provisions of the agreement. The court concludes that the first and third grounds are essentially the same since they go to the power of the arbitrator under the agreement. The union asks that the awards be vacated and modified.

 This court has jurisdiction and power upon this motion to confirm, vacate, or modify these awards. In exercising its power, this court is barred from ruling upon the merits of the awards and from substituting its interpretation or construction of the agreement for that of the arbitrator. The court is limited to determining: (1) whether the opinions rendered and the awards made were within the authority granted the arbitrator by the terms of the agreement; (2) whether the arbitrator's opinions and awards draw their essence from the agreement; and (3) whether the awards are definite enough to be enforceable. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960); Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 1 L. Ed. 2d 972, 77 S. Ct. 912 (1957); The Torrington Co. v. Metal Products Workers Union Local 1645 UAW, AFL-CIO, etc., 362 F.2d 677 (2d Cir. 1966); Medo Photo Supply Corp. v. Livingston, 274 F. Supp. 209 (S.D.N.Y. 1967), aff'd 386 F.2d 451 (2d Cir. 1967); Newark Stereotypers' Union No. 18 v. Newark Morning Ledger Co., 261 F. Supp. 832 (D.N.J. 1966); 29 U.S.C. § 185(a).

 The court holds that each of the foregoing questions must be answered in the affirmative upon the record and briefs before it.

 The arbitrator's authority under the terms of the agreement is defined in Article IX. This Article provides for a reference, in the first instance, to a Joint Adjustment Board of "all matters of controversy or dispute arising out of the operation of [the] agreement or affecting relations between the parties thereto which cannot be settled by the duly authorized representative of the Union and the employer directly involved." (Article IX, Sec. 1). If the Board is "unable to adjust or settle any such controversy or dispute by conference or negotiation after one meeting, such controversy or dispute shall be immediately referred to a representative chosen by the Employer Associations, parties to the agreement, and one representative chosen by the Sheet Metal Workers International Association for adjustment or settlement by conference." (Article IX, Sec. 2). If such representatives shall fail "successfully to adjust or to settle the controversy or dispute within 24 hours" after its meeting, then the employer associations or the union may demand arbitration. (Article IX, Sec. 2). The arbitration is to be held before an impartial arbitrator named in the agreement. He is empowered to "hold hearings and reach a determination with all due speed, but not later than 48 hours after completion of the submission of the issue to him. (Article IX, Sec. 2, P 2). He is specifically empowered to determine "whether or not the Employer or the Union violated the Agreement." (Article IX, Sec. 2, P 3). Moreover, the arbitrator is granted the authority to determine "what steps shall be taken to remedy the violation" if he shall find that either the employer association or the union violated the agreement (Article IX, Sec. 2, P 3). The employer associations or the union "shall have five days to comply or to start to comply with the award." (Article IX, Sec. 2, P 3). In the event a question arises with respect to compliance with the award of the impartial arbitrator, the question of compliance shall be, according to the agreement, referred back to the arbitrator. In such event, the arbitrator's power is limited. He has power to determine "solely whether or not the Employer has complied; if not, what still remains to be done to comply and to direct the Union to terminate a strike, if compliance has been found; or to instruct the Union to furnish manpower to enable the Employer to complete compliance." (Article IX, Sec. 2, P 7). The union's right to strike arises upon the employer association's failure to comply within five days of an award in favor of the union. (Article IX, Sec. 2, P 4). The employer associations apparently have the right to lock out the union upon an award in its favor with which the union has failed to comply. (Article IX, Sec. 3). Under Article IX, the exclusive remedy available to the employer association or the union in the event of a dispute involving compliance by either party with the terms of the agreement is the remedy set forth therein. (Article IX, Sec. 2, P 5).

 In this case, two disputes were referred to the arbitrator when the Joint Adjustment Board deadlocked with respect to each issue. The first dispute related to the critical manpower shortage in the construction industry. The manpower dispute was referred to the arbitrator when the Sheet Metal Workers International Association refused to accept jurisdiction to sit in on any dispute arising under the agreement as provided in the agreement. (Article IX, Sec. 2, P 1). On September 25, 1968 and again on October 10, 1968, the impartial arbitrator held the required hearings relating to the manpower dispute. This dispute arose under Article III of the agreement which provides as follows:

 
"Section 1. The Union agrees to furnish at all times to the Employer, duly qualified journeymen sheet metal workers and registered apprentices in sufficient numbers as may be necessary to properly execute work contracted for by the Employer in the manner and under conditions specified in this Agreement."

 At the conclusion of the hearing held on September 25, the arbitrator proposed: (1) that the union undertake immediately to bring into its membership 100 new journeymen sheet metal workers; (2) that these 100 journeymen be brought into the industry through the established procedures of the union's Constitution which calls for qualification of such new journeymen by a Board of Examiners; (3) that there be established an advisory committee to the union and the Board of Examiners; and (4) that he continue his jurisdiction of the dispute because, in his words, "the solution to this dispute has to be worked out rather than resolved by directive." The arbitrator then requested a report on the extent of the existing and anticipated shortage and set October 10, 1968 as the hearing date for a progress report on the new journeymen. (Opinion and Award, 10/10/68, pp. 1-2).

 On October 10, 1968 a further hearing was held. At that hearing, the employer associations and the union submitted information which they had gathered on the extent of the shortage of journeymen. They disagreed, however, as to the number of journeymen needed at that time and in the foreseeable future. The arbitrator found as a result of the hearing that "there is a very serious shortage and that for the present and in the immediate future, additional journeymen will be needed to enable the Contractors to handle the work on hand and for which, backlogs have developed." (Opinion and Award, 10/10/68, p. 2). The arbitrator then noted in his decision of October 10, which followed the hearing, that the induction of 100 new journeymen into the membership of the union manifestly could not be accomplished overnight. He further observed that the union should not be asked to accept unqualified persons as journeymen; but he ruled that qualified persons from all sources should be given the opportunity without discrimination to take the examinations prescribed by the Board of Examiners (Opinion and Award, 10/10/68, p. 2). He then noted that about 200 persons had applied for acceptance as journeymen and that the union had scheduled tests for November 2 and 16, 1968, after which, he anticipated, the 100 journeymen would be available for work. (Opinion and Award, 10/10/68, pp. 2-3).

 The arbitrator then ruled that the most immediate and practical way the existing manpower shortage could be dealt with was through the admission of qualified employees on a permit basis. The arbitrator found that permits had been issued in the past. He found, additionally, that at that time approximately 200 employees were working in the area on permits which had already been issued by the union. The arbitrator then ruled that there should be an increase of 250 permit men for emergency employment only, each permit being for a period of 90 days from employment, and renewable only upon the further order of the arbitrator. Finally, the arbitrator ruled that the employment of the permit men would be subject to termination as the economic needs of the employer indicated without any claim to employment or damages for loss of employment against the employer associations or the union. The arbitrator continued his jurisdiction over the dispute. He provided for a hearing on 24 hours notice with respect to any necessity for the protection of the interests of the union or the contractor under the then existing circumstances. (Opinion and Award, 10/10/68, pp. 3-4).

 On April 10, 1969, the employer associations requested a further hearing regarding the manpower dispute which was held on May 2, 1969. (Petition, p. 4). At that hearing, the employer associations asked the arbitrator to direct the union to: (1) accept additional journeymen; (2) institute a pre-apprentice class and, (3) increase the number of permit men. The employer associations claimed: (1) although many workers had been admitted on a permit basis, there was still a shortage of permit men; (2) the union had refused permits to men who are qualified; and (3) the union had restricted the use of permit men "on jobs where regular journeymen had been laid off." (Opinion and Award, 5/9/69, p. 5).

 The arbitrator had ordered by his award of October 10, 1968 that the union admit up to 250 permit men and 100 new journeymen.

 The arbitrator found in his Opinion and Award which followed the May 2 hearing that there exists an extreme emergency in the construction industry with respect to the sufficiency of available manpower which was exacerbated by the union's refusal to permit certain workers to work overtime. These workers are referred ...


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