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CRUSCO v. FISHER & BROTHER

August 3, 1978

Joseph CRUSCO, Robert Oldenberg, Leo Marasa, Forest Huff, William Ruhs, John Marshall, Leroy Natt, Dom Bennedetto, George Moshinsky, Rocco Reale, John Alimo, Ed Brennan, Robert Booth, Larry Goetz, Joseph Wavercan, Paul Horodecki, Steve Glocovics, Lou Ciliberti, Sr., James Monroe, George Simatos, Milton Solomon, Joseph Corbett, Peter Corbett, Robert Chibatto, John Johnson, Bernard Scapparo, Mike McDonough, Dan Gray, bErskine Ingraham, William Lipinsky, John Rivas, James Southerland, Ed Diaz, Cornelius Johnson, Max Barnwell, Robert Corbett, Joe Gentile, Robert Smith, Mike Hynes, Loman Wilson, David Dixon, Dan Fox, Joe Mara, Mike McCue, Dan Scafuto, Jay Weitzel, Mike Gonzales and George Danielo, Plaintiffs,
v.
FISHER & BROTHER, INC. and Local 814, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Defendants



The opinion of the court was delivered by: CANNELLA

Motion by defendant Fisher & Brother, Inc., to confirm the December 14, 1977 award of Arbitrator Thomas A. Knowlton, is granted.

Motion by defendant Local 814, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, for summary judgment, is granted.

 The complaint is dismissed.

 FACTS

 This is a labor dispute. Defendant Fisher & Brother, Inc. ("Fisher") is a moving and storage company with a place of business in New York City. Defendant Local 814, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America ("Local 814" or "the union") is party to a collective bargaining agreement with Fisher. Plaintiffs ("the 22nd Street men" or "the Weissberger men") are employees of Fisher and members of Local 814. In their complaint, plaintiffs allege that Fisher violated the collective bargaining agreement and that Local 814 breached its duty of fair representation in connection with a seniority dispute. Jurisdiction is based on § 9(a) of the National Labor Relations Act, 29 U.S.C. § 159(a), § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and on the Federal Arbitration Act, 9 U.S.C. § 10; See 28 U.S.C. §§ 1331, 1337.

 The genesis of this lawsuit is a series of events that occurred between December 1972 and February 1973. In December 1972, the forty-eight individual plaintiffs were employees of Weissberger Moving & Storage Co., Inc. ("Weissberger") and worked out of a garage on 22nd Street in Manhattan. Local 814 was the bargaining agent for Weissberger's moving and storage employees and the union was party to a collective bargaining agreement with the company. In late December 1972 Weissberger advised its employees that it would cease doing business at the end of the year. Consequently, in January 1973, the moving and storage employees (including some of the plaintiffs in this suit) were laid off.

 During this period defendant Fisher negotiated the purchase of certain Weissberger assets. At that time, Fisher maintained a warehouse on 52nd Street in Manhattan and employed approximately fifty moving and storage workers. The Fisher employees ("the 52nd Street men") also were represented by Local 814, and the union was party to a collective bargaining agreement with Fisher. In its discussions with Weissberger, Fisher had expressed an interest in hiring some of the laid-off 22nd Street men. However, the question of how the 22nd Street men would be treated for purposes of seniority, in the event they were hired by Fisher, was left unresolved.

 Local 814's collective bargaining agreements with Fisher and Weissberger were substantially identical. The agreements contained the following provision (Article 21-H of the current agreement) critical to plaintiffs' claims in this suit:

 
Whenever one company is absorbed by, merged with, purchased or acquired in any manner by another company, the employees of both companies shall be integrated into one Seniority List by their dates of original employment. This shall be so even if there be more than one payroll or both companies retain their corporate structure, or are owned and operated as separate entities. The determining factor shall be common stockholders, directors or officers, or common ownership. This shall, likewise, apply to all companies heretofore merged, absorbed, purchased, or acquired and such companies now maintaining separate Seniority Lists or payrolls shall, within ten (10) days after the execution of this agreement, integrate their Seniority Lists to accomplish the foregoing purposes. Any attempt to evade this purpose shall leave the Union free to withdraw its members from the employ of the company or companies practicing such evasion until this section is complied with. The parties recognize, however, that in the case of warehouses widely separated, or having different-type operations, hardships may be suffered or difficulties presented making administration of one Seniority List impractical. In such cases the Union shall meet with such companies separately to provide means of surmounting such difficulties to eliminate hardship.

 The impact of this provision on the 1973 Fisher/Weissberger transaction was disputed. The 52nd Street men were opposed to a single seniority list based on original employment dates because the 22nd Street men had substantially greater seniority in the industry. The parties attempted to resolve this dispute at a January 15, 1973 meeting, held at the offices of Local 814, attended by representatives of the 22nd Street men, the 52nd Street men, the union and Fisher. At the conclusion of the meeting the representatives of the 52nd Street men and 22nd Street men (including plaintiffs Chibatto, Booth, Peter Corbett, Joseph Corbett and Marasa) signed identical letter agreements providing that:

 
1. There shall be two (2) separate lists operating under Fisher & Brother, Inc.
 
2. The work shall be distributed as fairly as possible between both Seniority Lists.
 
3. If either one of the lists is exhausted, before hiring from the street, management shall first go to the other list for additional help.
 
4. In order to protect as many list men as possible, it will take full cooperation from both parties, namely, "employees" and "the employer."

 The following day Fisher and Local 814 entered into an agreement which read as follows:

 
This will confirm our agreement to abide by the annexed formula, as approved by the committees for both groups of men.
 
It is agreed that if there is any dispute between the union and the company concerning the fair and equitable application of this agreement, it shall be subject to the grievance and arbitration provisions of the Collective Bargaining Agreement.

 Pursuant to these agreements, Article 21-H notwithstanding, two separate seniority lists were created. One list contained the names of approximately fifty former Fisher employees and was known as the 52nd Street list; the other contained the names of approximately one hundred former Weissberger employees and was known as the 22nd Street list. On February 1, 1973, Fisher closed its deal with Weissberger. For a time, Fisher operated both garages and divided its work between the two seniority lists.

 In 1974, however, Fisher consolidated its operations by closing its 52nd Street warehouse. Thereafter, Fisher moving and storage employees from both lists worked out of the 22nd Street warehouse. Following this consolidation, Fisher continued to assign work under the two-list system. Additionally, in April 1974, Fisher and Local 814 negotiated a new collective bargaining agreement which included a provision for the creation of a single seniority list identical to the provision quoted earlier. In June 1975 the Weissberger men submitted a grievance to the union seeking arbitration on the issue of the seniority lists, but the dispute was never arbitrated.

 In 1977 Fisher and Local 814 entered into another collective bargaining agreement covering the period from April 1, 1977 to March 31, 1980. This current agreement contains language, concerning the creation of a single seniority list, identical to that in the earlier agreements. Fisher claims that, during the 1977 negotiations with Local 814, the company sought a contract provision specifically dealing with the two-list system it had been operating under since February 1973. At that time Fisher argued that the two lists were an "administrative nightmare" and placed the company at a disadvantage with its competitors. Fisher pointed out that, although the combined lists contain approximately one hundred names, the company's business had diminished to the point where it employed approximately fifty workers on a daily basis. Additionally, within each list, the employees are classified and assigned seniority in specific job titles (E. g., chauffeur, warehouseman, checker and helper). Thus, in attempting to divide the work, Fisher was required to keep detailed records of work performed on each list by job category. Moreover, Fisher claimed that there was disharmony whenever the 22nd Street men and the 52nd Street men were assigned to work together on a particular job, and that the situation occasionally required it to employ more men than the work demanded.

 In any event, on July 12, 1977, Fisher advised its employees and Local 814 that the company intended to merge the seniority lists, by date of original employment, effective the following day. Local 814 protested this unilateral conduct by the employer, and, thereafter, Fisher agreed to maintain the Status quo and to submit the matter to arbitration.

 The arbitration hearing was held on October 21 and November 1, 1977, under the auspices of the American Arbitration Association before Thomas A. Knowlton as arbitrator. The transcript of the arbitration hearing is before the Court as an exhibit to the answer of defendant Fisher. Among those present on October 21 were the president of Local 814 and the union's lawyer, Bruce Simon, Esq.; representatives of both employee ...


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