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INTERNATIONAL UNION OF ELEC.

January 14, 1971

International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, Plaintiff
v.
General Electric Company, Defendant


Cooper, District Judge


The opinion of the court was delivered by: COOPER

COOPER, District Judge:

Plaintiff, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC (hereinafter "Union") moves pursuant to Section 301 of the Labor Management Relations Act of 1947, 67 Stat. 156, 29 U.S.C. § 185 and Rule 56, F.R. Civ. P. for summary judgment to compel the arbitration of thirty-nine (39) *fn1" grievances arising under the 1963-1966 and 1966-1969 *fn2" national collective bargaining agreements (hereinafter "Agreements") between the Union and defendant General Electric Company (hereinafter "Company"). Finding no triable issues of fact as to arbitrability, plaintiff's motion is granted with respect to thirty-seven (37) grievances; it is denied with respect to two (2) grievances. *fn3"

 * * *

 Under International Union of Electrical, Radio and Machine Workers, AFL-CIO v. General Electric Company, 407 F.2d 253 (2d Cir. 1968), cert. denied, 395 U.S. 904, 89 S. Ct. 1742, 23 L. Ed. 2d 217 (1969), (hereinafter "1968 case"), we apply the following tests to the "narrow" non-standard *fn4" arbitration clause *fn5" and its limitations in the Agreements to determine whether a grievance is arbitrable as a matter of right (Article XV, Sections 4(b), (6):

 
(1) Is there a claimed *fn6" violation of a specific provision *fn7" of the Agreements (and their limitations *fn8" and exceptions)?
 
(2) Does any clause in the Agreements specifically exclude certain disputes from arbitration?

 Subject Grievances I N.D. 13267 - 91 (Fitchburg, Mass.) N.D. 12142 (Fitchburg, Mass.)

 These grievances concern retention of "Temporary" prices on turret lathe and drill operations (N.D. 13267-13291, numbering twenty-five (25)) and retention and reduction in one stud operation (N.D. 12142) at Fitchburg, Mass. In each case the Company maintained the piece prices, which it designated, for periods of time ranging from eleven (11) months to about thirteen (13) years.

 The Union alleges that the long time period without change to "Standard" pricing was in violation of Article VI, Section 4(c) as to each of these above grievances. In addition, it contends that with respect to N.D. 12142, Article VI, Sections 4(a) and 4(b) require the finding that an established manufacturing method existed which created a Standard price, and that since there was no change of method there could be no reduction in price. The Company's most weighty contention is that Article XV, Section 7(e) of the Agreement excludes the grievances from arbitration.

 Article VI -- "Wage Rates" -- provides in relevant part:

 
4. Piece Prices -- Hourly Rated Piecework Employees
 
(a) Piece prices are classified as standard, temporary or special and all piecework vouchers will indicate the classification.
 
(1) A Standard Piece Price is one set where the manufacturing method has become established.
 
(2) A Temporary Piece Price is one set where the manufacturing method is under development or has been changed, or the average pieceworker on the job has not yet attained normal performance.
 
(3) A Special Piece Price is one set on work which usually repeats infrequently or is in small quantities or has some special feature or purpose.
 
(b) There will be no change in a standard price except where there is a change in manufacturing method.
 
* * *
 
(c) Subject to the foregoing, the Company will replace a temporary price with a standard price within six months if reasonably possible under the circumstances.

 If it were reasonably possible for the Company to place a standard price on the jobs under the circumstances, this would be a direct violation of Article VI, Section 4(c), supra. While the mere passage of six (6) months does not mandate a change of rate, under the Agreement the Company cannot arbitrarily refuse to re-structure the pricing system. The time elapsing after the establishment of a temporary price is only evidentiary and is not dispositive, standing alone, of whether Article VI, Section 4(c) has been violated. Once six (6) months have elapsed since the setting of a temporary price thereby triggering Section 4(c), time is only one factor among many for the due consideration of the arbitrator. Reasonableness is a key element in Section 4(c) by its express terms.

 These grievances are not excluded from arbitration by Article XV, Section 7(e), which provides:

 
"7. . . . In particular, it is specifically agreed that arbitration requests shall be subject only to voluntary arbitration, by mutual agreement, if they . . .
 
(e) Would require an arbitrator to consider, rule on or decide the appropriate hourly, salary or incentive rate at which an employee shall be paid, or the method (day, salary or incentive) by which his pay shall be determined. (See footnote).
 
Footnote: Subsections e, f, and g above reflect the fact that this National Agreement does not set out specific rates or classifications for jobs, and are designed to confirm the intent of Article VI, Section 1 *fn9" and Article VI, Section 5 (first sentence) *fn10" that disputes over individual job classifications, rates of pay, incentive standards, etc., are assigned by the parties to local negotiations, and not to arbitration."

 The predecessor to Article XV, Section 7(e) was held merely to restrict an arbitrator's remedial powers and not the scope of arbitrability, Carey v. General Electric Company, 315 F.2d 499 (2d Cir. 1963), cert. denied, 377 U.S. 908, 84 S. Ct. 1162, 12 L. Ed. 2d 179 (1964), and while Article XV, Section 7(e) is more specific, it is not sufficiently specific to exclude the grievances at bar from arbitration. 1968 case, supra, at 263. The issue is not whether the arbitrator is called to determine an "appropriate" rate, but whether the present rate was maintained in violation of the Agreement. 1968 case, supra, at 261-262.

 We find each of N.D. 13267-13291 and N.D. 12142 arbitrable as containing a claimed violation of a specific provision of the Agreement and not specifically excluded from arbitration by any Agreement clause. *fn11"

 However, the issues to be arbitrated are limited. The arbitrator may not mandate a new rate under these submissions. With particular relevance to N.D. 12142 where the rate was reduced, the Court of Appeals stated in the 1968 case :

 
The arbitrator cannot pass on the new rate in any way, although if he concludes that the old rate was standard and that the change in rate was not accompanied by a change in manufacturing method, he can order the old rate reinstated, if he sees fit." (at p. 263).

 The issues *fn12" for arbitration *fn13" are:

 For each of N.D. 13267-13291 and N.D. 12142: Was it reasonably possible under the circumstances for the Company to replace a temporary price with a standard price; if so was retention of a temporary price by the Company a violation of Article VI, Section 4 of its Agreement with the Union?

 Additionally for N.D. 12142: Was the price established by the Company "Standard" within Article VI, Section 4 of its Agreement with the Union?

 If the price established was "Standard," did the Company change the rate without an accompanying change of method, in violation of Article VI, Section 4 of its Agreement with the Union?

 II

 N.D. 10543 (Pittsfield, Mass.)

 N.D. 11974 (Rome, Ga.)

 N.D. 13391 (Fitchburg, Mass.)

 N.D. 10269 (Pittsfield, Mass.)

 N.D. 11397 (Rome, Ga.)

 N.D. 17703 (Rome, Ga.)

 Each of these grievances involves alleged violations of Article VI, Section 4(b), with N.D. 10543, 11974, and 11391 falling under the first paragraph of Article VI, Section 4(b), set forth in full, supra. The remaining national docket numbers -- 10269, 11397, and 17703 -- allegedly involve violations of the second and third paragraph of Article VI, Section 4(b), set forth, infra.

 N.D. 10543 involves a four (4) gun welding stud operation, N.D. 11974 involves liquid simulated sheet windings, and N.D. 13391 involves certain drill operations. In each case, the Union contends that Standard prices were changed without a change in method in violation of Article VI, Section 4(b), first sentence, supra. While defendant raises several "defenses" which go to the merits rather than to arbitrability, it also contends the rates were temporary and relies upon Section XV, 7(e), which we have dealt with above. In accordance with the ...


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