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WESTERN ELEC. CO. v. COMMUNICATIONS WORKERS

April 4, 1978

WESTERN ELECTRIC COMPANY, INCORPORATED, Plaintiff,
v.
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Defendant



The opinion of the court was delivered by: BARTELS

BARTELS, District Judge

 This is an action under Section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185(a), and Section 10 of the Federal Arbitration Act, 9 U.S.C. § 10, to vacate a labor arbitrator's opinion and award. Plaintiff, Western Electric Company, moves pursuant to F.R.Civ.P. Rule 56 for summary judgment vacating the award, and defendant, Communications Workers of America, AFL-CIO ("CWA"), cross-moves for summary judgment on its counterclaim for compliance.

 Western Electric and CWA were parties to a collective bargaining agreement dated August 11, 1974, which provided, among other things, for arbitration of grievances arising with respect to interpretation of the agreement or performance of obligations under it. In September, 1975, pursuant to the provisions of Article 7, paragraph 1.6, *fn1" and Article 8, *fn2" of the agreement, Western Electric and CWA submitted the following questio for arbitration:

 
Did the Company violate Article 13, paragraph 2.18 of the collective bargaining agreement when it changed existing routes and mileage measurements from various computation points to job locations within the New York Installation area ? If so, what shall the remedy be? *fn3" (Emphasis added.)

 The basis for the above question was a dispute over compensation paid by Western Electric to its equipment installers for travel over certain routes in the New York Installation area. Installers, represented in New York by CWA Local 1190, are assigned on a day-to-day basis to work at any one of approximately 270 "job locations" in the New York area. Job locations are telephone company buildings in which installers work, as needed, installing the central switching equipment used to connect and transfer local, national, and overseas telephone messages. Because installers' assignments may vary from day to day, the 1974 collective bargaining agreement provided, as had agreements since 1962, that installers would be paid an allowance for travelling to their assigned job locations. This allowance, which is a form of wages reported on the installers' W-2 tax forms, is calculated using projected travel routes theoretically taken by installers to reach their assigned job locations. Rather than projecting a set of routes from each installer's home, routes are established using centrally located "computation points" as their points of origin. In New York there are twelve computation points and over 3000 projected routes. Although an installer is not actually expected to go to his computation point and travel along the projected routes, the designated route between the computation point closest to his home and his job location determines his travel compensation.

 Article 13, paragraph 2.18, under which the present dispute arose, governs the selection of these projected computation point to job location routes and provides that:

 
The Company shall select the route and determine the road mileage measurement for that route. . . .

 Despite this language, which appeared in both the 1974 collective bargaining agreement and the 1962 agreement which established the compensation plan, the computation point-job location routes in the New York Installation area were not selected by Western Electric acting alone. Instead, the New York area routes, originally selected in 1962, and still in effect when this dispute arose, were the product of a joint effort by representatives of Western Electric and CWA Local 1190 working together in two-man teams. These teams were guided in the process of establishing a plan of New York area routes by a booklet prepared in 1962 by Western Electric's national management, which called for the selection of routes which were both short and practical, and also indicated that:

 
Although considerable effort may be required to establish this plan, once routes have been selected and measurements made, changes in the listings would be quite infrequent. Only unusual conditions, such as the opening of new highways, bridges, etc., would possibly require the need for re-establishing routes and measurements.

 The New York area routes which the Western Electric-CWA teams selected in 1962 were often the most practical, though not always the shortest, and in keeping with the 1962 booklet were revised from time to time when new bridges or other improvements became available. In addition, individual routes were occasionally remeasured when discrepancies were found between their theoretical length and their actual length.

 Although travel compensation is primarily determined by the length of computation point-job location routes, there is an additional factor which affects travel allowances. That factor is the relationship between an installer's computation point, the job location to which he is assigned on a particular day, and his "Base Location," a focal point of regional installation work. While the Western Electric-CWA collective bargaining agreement does not specify the myriad job locations and computation points used across the country, it does specify all of Western Electric's Base Locations nationwide. These Base Locations, which are of primarily local importance, are initially discussed and agreed upon at the local level and then included in the national agreement if approved by the national negotiators.

 In the summer of 1974, national representatives of Western Electric and CWA International were meeting in New York to negotiate the 1974 collective bargaining agreement. Simultaneously, local negotiations were taking place in New York between James J. McGarry, Western Electric's New York Installation area manager, and John Flanagan, who was both President of CWA Local 1190 and one of CWA International's bargaining representatives in the national negotiations. The local negotiations were initiated by McGarry in response to directives from his superiors, including Western Electric's Director of Operations for New York, that efforts be made to reduce the cost of travel compensation in the New York Installation area. The cost reduction plan which McGarry initially presented to Flanagan called for the inclusion of two new Base Locations in the 1974 national agreement, to supplement the single New York Base Location already in existence. It also called for relocation of New York area computation points to new positions which would further reduce compensation. Flanagan rejected this plan and insisted that Local 1190 would not agree to inclusion of any new Base Location without receiving concessions to minimize its compensation reducing effects. The negotiations on this point lasted for three months, during which McGarry and Flanagan explored a wide range of alternatives. They reached a final agreement which they reduced to writing in a letter signed August 9, 1974, two days before the national agreement was concluded. The August 9 letter provided that McGarry would shift three computation points to new positions which would increase the compensable length of routes originating at those points, and keep the remaining computation points unchanged for the duration of the 1974 national agreement. In exchange, Flanagan and Local 1190 approved the new Base Location for the New York area which Western Electric sought to include in the 1974 national agreement.

 In keeping with the August 9 local agreement, the new Base Location was inserted in the 1974 collective bargaining agreement, giving Western Electric a total of two New York Base Locations. McGarry changed the three computation points which had been agreed upon, and left the remaining eight New York area computation points unchanged, as promised. As a result of shifting three computation points and adding a new computation point to correspond to the new Base Location, it was necessary to map out new routes between those new points and existing job locations. Prior to making these changes, and while the local negotiations were still going on, McGarry and his staff had begun to examine all existing routes between New York area computation points and job locations. McGarry made reference to this examination during the talks with Flanagan, but only with respect to filling scattered gaps in the routes, and correcting mileage inaccuracies which his staff had found. During the arbitration hearings, McGarry conceded that based on his staff's examination, he had anticipated making significant route revisions, but intentionally withheld this information from Flanagan and the union. After local agreement had been reached, and after the national agreement, with its new Base Location had been ratified, McGarry and his staff began mapping out routes for the shifted computation points, increasing the combined length of these routes by a total of eight miles. In addition, they began to work on the routes between job locations and the computation points which had remain unchanged. However, rather than filling in gaps and correcting mileage measurements, McGarry and his staff began an overall revision and remapping of these routes which substantially reduced their aggregate length, more than completely offsetting the eight miles gained by the union in the computation point shift. McGarry conceded during the arbitration hearing that if he had revealed his intention to make these revisions, it would have been difficult or impossible for Western Electric to have obtained union approval of a new Base Location in the New York area. *fn4" Flanagan confirmed ...


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