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COMMUNICATIONS WORKERS v. WESTERN ELEC. CO.

March 23, 1977.

Communications Workers of America, AFL-CIO, Plaintiff
v.
Western Electric Co., Inc., Defendant.



The opinion of the court was delivered by: HAIGHT

HAIGHT, D.J.: Plaintiff Communications Workers of America, AFL-CIO (the "Union"), invoking Section 301(a) of the Labor Management Relations Act, *fn1" seeks a preliminary injunction, in aid of arbitration, against defendant Western Electric Company, Inc. (the "Company") to enjoin transfers of employees which the Union contends violate principles of seniority, in breach of the contract between the parties. The Company contends that this Court lacks jurisdiction to give injunctive relief, or alternatively that the Union is not entitled to such relief in the circumstances. The case presents questions of the interaction of the Labor Management Relations Act and the Norris-LaGuardia Act, *fn2" viewed from the heights of the Supreme Court's decisions in Boys Markets, Inc. v. Retail Clerks Union *fn3" and Buffalo Forge Co. v. United Steelworkers of America. *fn4" The Court has held the evidentiary hearings required by the applicable statute *fn5" and rule. *fn6"

The Court concludes:

(a) Contrary to the Company's contention, this Court has jurisdiction to give injunctive relief.

 (b) Contrary to the Union's contention, it is not entitled to injunctive relief at this time.

 (c) The parties shall be directed to proceed to expedited arbitration, this Court retaining jurisdiction for the purposes stated infra.

 This case illustrates the pressures that a business recession and technological development places upon companies and skilled employees. Western Electric, the Company in the case at bar, is the manufacturing and supply division of the Bell system, manufacturing, installing and repairing telephone and central office equipment for the members of that formidable corporate communications family. *fn7" The Union is the bargaining agent for the Company's installers. The parties entered into a nationwide, three-year contract on August 11, 1974.

 In 1971 the Company employed more than 30,000 installers. The present employment roll is down to 16,500. Further reductions in the work force are projected, gradually declining to a level of about 15,000 in 1981. The causative factors include a falling off of new building construction (thus reducing the need for new telephone installation) and miniaturization of equipment (thus reducing the need for installers). *fn8" The consequences upon Union members, as they have been laid off, are severe.

 The contract contains detailed provisions for layoff and recall. They are found in Article 20, euphemistically captioned "Adjustments to the Working Force". Art. 20, [*] 1 introduces the subject with a general statement of understanding:

 The Company desires to maintain employment as near to a constant level as possible. Both parties recognize, however, that the needs of the business and its efficient operation may necessitate reassignment of personnel or the addition to, or decrease in the working force.

 Article 20 then provides, in effect, for layoffs of employees, in inverse order of term of employment, within certain categories based upon seniority. *fn9" The more seniority an employee has, the more protected he is from layoff. Employees who have attained 10 years seniority are the last to be laid off, and such an employee "cannot be laid off until the employees in all other base locations with less than 10 years' service are laid off." *fn10" This nationwide requirement contrasts with the layoff provisions in respect of employees with less seniority, where layoffs are accomplished within "layoff groups" of more narrow geographic boundaries. *fn11"

 Article 20 also provides for the recall of employees from layoff:

 A former Employee who has been Laid-Off shall be returned to work in the inverse order of Layoff (except as provided in Paragraph 7.1) at the Base Location from which he or she was Laid-Off provided he or she makes himself or herself locally available to said Base Location and provided he or she is qualified for the work to be done, physically fit and has not been Laid-Off for more than two (2) years. (emphasis added). *fn12"

 The effect of the italicized phrase is to remove a laid-off employee from the recall list at the end of two years. He thereby loses his contractual right to insist that he be preferred to a new employee, in the event that the Company resumes hiring.

 The contract also contains elaborate provisions for transfer of employees from one location to another, either on a permanent or temporary basis. *fn13" The Company regards these provisions as crucial, because of its need to maintain a highly mobile work force, responding to installation and repair requirements as they arise around the country. *fn14" That practical necessity is recognized by the contract:

 The Company and the Union agree that the character of installation work makes it necessary for an Employee to move to and from Job Locations and Work Locations. The Company will effect such a move by a Local Assignment, a Temporary Transfer or a Permanent Transfer. *fn15"

 Transfers take place between various "base locations", or between "areas" (which comprise more than one base location), or between "regions" (which comprise more than one area).

 The contract also provides for resolution of disputes, first by reference to a grievance procedure which works its way up through various levels of the Company and Union; *fn16" if, after grievance procedures have been exhausted, the dispute has not been settled, the contract provides for arbitration. *fn17"

 We now come to the events which give rise to the present litigation. During the first week of this year, the Company implemented a number of transfers of employees, from one area into another, the effect of which was to transfer into a particular area employees of less seniority than employees who were on layoff within the area into which the transferees were assigned. The Union takes the position that such transfers, of "junior" employees into areas where "senior" employees are laid off, constitutes a violation of the recall provisions of Art. 20, [*] 7. The Company, resisting that construction of the contract, takes the position that its transfer options under Art. 13, in respect of temporary transfers, are entirely unfettered by any concepts of seniority. *fn18"

 The parties recognize, as is clearly the case, that this question of contractual construction must be resolved by the arbitrator. Furthermore, counsel for both parties and their representatives agreed at the hearing to cooperate in an expedited arbitration. Specifically, the Company has stated in writing its willingness to waive the grievance procedures preliminary to arbitration; *fn19" the Court understands the Union to express a similar willingness.

 The Union filed its complaint in this Court seeking a preliminary injunction which it characterizes as "in aid of the arbitration". Specifically, the Union asks this Court to enter a preliminary injunction, enjoining and restraining the Company:

 "... from (a) transferring or causing to be transferred any employees from one Area of the Company to another Area of the Company within the United States where the effect of the transfer is to bring into the Area employees whose seniority is less than the highest seniority of employees currently on layoff status in that Area, and (b) maintaining in its Area work forces within the United States employees who have already been transferred to those Areas whose seniority is less than the highest seniority of employees currently on layoff status in those Area work forces,..."

 In other words, if the injunction is granted, the Company must stop transferring "junior" employees into areas where employees of greater seniority are presently laid off; and, in respect of such transfers that have already been accomplished, the "junior" transferred employees must be sent back to where they came from.

 The Company vigorously insists that the Union is not entitled to injunctive relief, either on the law or on the facts.

 The Company's threshold contention is that this Court lacks jurisdiction to give any injunctive relief. Primary reliance is placed on the Supreme Court's recent decision in Buffalo Forge Co. v. United Steel-workers of America, supra.

 To evaluate the contention, a brief historical review is necessary.

 In 1932 Congress passed the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115. The statute reflected the desire of Congress to protect the rights of laboring men to organize and bargain collectively, and to correct perceived existing abuses of injunctive remedies in labor disputes. Marine Cooks & Stewards, AFL v. Panama S.S. Co., 362 U.S. 365, 370, 4 L. Ed. 2d 797, 80 S. Ct. 779 (1960), rehearing den., 363 U.S. 809, 4 L. Ed. 2d 1151, 80 S. Ct. 1235 ; Brotherhood of R.R. Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30, 40, 1 L. Ed. 2d 622, 77 S. Ct. 635 (1957), rehearing den., 353 U.S. 948, 1 L. Ed. 2d 857, 77 S. Ct. 823 . Thus § 1 of the Act, 29 U.S.C.0 § 101, PROVIDES THAT "NO COURT OF THE United States... shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute except in strict conformity" with the Act's provisions. The two principal provisions implementing this policy are § 4, 29 U.S.C. § 104, and § 7, 29 U.S.C. § 107. Their respective functions are summarized in United States Steel Corp. v. United Mine Workers of America, 456 F.2d 483, 487 (3rd Cir. 1972), cert. den., 408 U.S. 923, 33 L. Ed. 2d 334, 92 S. Ct. 2492 :

 The thrust of § 4 of the Norris-LaGuardia Act is quite different from that of § 7. The former is a list of injunctive orders which the federal district courts are flatly prohibited from entering. The latter is essentially a procedural section. It prohibits the entry of an injunction growing out of a labor dispute

 "except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a complaint made under oath, and ...


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