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April 27, 1984


The opinion of the court was delivered by: SWEET


Defendant District 1199, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, ("1199") has moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P., to enforce an arbitration award requiring plaintiff Washington Heights - West Harlem - Inwood Mental Health Council, Inc. (the "Council") to rehire and restore back pay to Edward Lane ("Lane"), a mental health worker and union delegate. The Council has crossmoved for summary judgment vacating the award. For the reasons set forth below, and with considerable misgiving, the Council's cross-motion will be granted, 1199's motion denied, and the arbitration award vacated.

 There is no dispute between the parties with respect to the material facts which will be described chronologically. Where the parties differ as to non-material facts, those differences will be noted. 1199 is the collective bargaining representative of certain employees of the Council. The Council and 1199 were parties to a collective bargaining agreement dated May 2, 1979, covering the period January 1, 1979 to December 21, 1980. That contract expired by its own terms on December 31, 1980 and negotiations for a successor. Collective bargaining agreement commenced in late 1980 with the understanding that any agreement reached by the negotiators would be submitted to the board of the union membership for approval. The Council's By-Laws state that its Board of Directors shall enter into contracts in the name of the Council to be signed by the chairperson of the Council in its name.

 On or about April 17, 1981, the parties' bargaining committees reached agreement as to the terms of a proposed collective bargaining agreement to cover the period January 1, 1981 to June 30, 1982. On or about May 6, 1981, the parties signed a "Memorandum of Agreement Covering Salary Increases and Minimum Classification Schedules for the Contract Period January 1, 1981 through June 30, 1982."

 The Council implemented the terms agreed upon by the parties, including: a 7% wage increase retroactive to January 1, 1981; a $500 increase in classification minimums; an increase in the minimum wage differential upon promotion from $4.00 to $5.00; and the elimination of a $6.00 weekly subminimum differential for probationary employees. Throughout the Period January 1, 1981 to June 30, 1982, the Council paid benefits in amounts and under terms specified in the union draft contract, provided union membership cards and dues check-off authorization forms to newly hired employees, required employees to become members of 1199 within thirty (30) days of their hire and supplied the union with copies of all notices of job openings for bargaining unit positions. The Council remitted union dues and paid monthly contributions to the union benefit fund on behalf of bargaining unit employees.

 Throughout the period January 1, 1981 to June 30, 1982, grievances at the Step 2 level were aired between the employee involved, his supervisor, the Council's executive director, an 1199 delegate and the Grievance Committee of the Council. A representative of 1199 dealt with Step 3 grievances. Correspondence between the parties during this period referred to an agreement. The parties participated in three arbitrations during 1982.

 In December 1981, the Council was given a 71-page contract draft by 1199 containing, among other provisions, a continuation of arbitration procedures for grievances. On January 18, 1982, the Council wrote to 1199 seeking changes in the proposed agreement, changes unrelated to the arbitration and grievance procedures.

 On January 5, 1982, Lane received a letter of reprimand, and on April 20, 1982, Lane was suspended. On May 13, 1982, 1199 sought the designation of an arbitrator from the American Arbitration Association for the Lane dispute. The distinguished arbitrator George Fowler ("Fowler") was agreed upon by the parties, and the arbitration was scheduled for August 4, 1982.

 On June 16, 1982, 1199 forwarded a second draft contract to the Council, and on July 26, 1982, representatives of 1199 and the Council met to resolve a number of outstanding issues concerning the June 1982 contract draft. A number of subjects were discussed: (1) the hiring hall provisions, (2) an on-call pay clause in the definition of "regular pay," (3) language regarding wage increases, (4) eligibility for sick leave, (5) maternity leave, (6) temporary employees and "bumping" rights in the event of layoffs and recalls, (7) the "bumping" provision in the seniority clause, and (8) job reclassification. A dispute exists as to whether five other issues were discussed: (1) the parties' side letter on training and upgrading, (2) coverage of clerical and service and maintenance employees, (3) notification for entitlement to sick leave, (4) length of probationary period, and (5) training of family health coordinators and medical and dental assistants. On August 3, 1982, another contract draft was delivered to the Council by 1199.

 In October or November, 1982, Council Board Chairman William H. Hatcher issued a public statement that the parties had negotiated a 1981-1982 contract, and that the Council had implemented all of its terms, including the processing of grievances and the submission of unresolved grievances to arbitration.

 On August 4, 1982, Fowler recused himself as arbitrator because he knew one of the members of the Council Board of Directors, Emma Bowen, and had been questioned by 1199 on the relationship. *fn1" On August 5, 1982, the Council wrote a letter to 1199's attorney refusing to go forward with the Lane arbitration on the grounds that no agreement to arbitrate existed. The arbitrator subsequently appointed held a hearing on November 19, 1982, which the Council did not attend. On January 7, 1983, the arbitrator handed down an eleven-page award, directing reinstatement and back pay for Lane. It is that award which is at issue here.

 On January 12, 1983, a fourth contract draft was submitted to the Council from 1199. The draft submitted by 1199 on August 3, 1982 differs from the January 12, 1983 draft with respect to the job reclassification clause. To date, no successor collective bargaining agreement to cover the period January 1, 1981 to June 30, 1982, or from July 1, 1982 thereafter, has ever been submitted to or approved by the Council Board of Directors or signed by the parties.

 On January 19, 1983, the Council filed an unfair labor practice charge with the National Labor Relations Board ("NLRB") concerning 1199's failure to reduce the terms agreed upon in the negotiations to writing. On January 31, 1983, 1199 filed an unfair labor practice charge alleging that the Council had refused to sign a collective bargaining agreement whose terms had been agreed on.

 On March 31, 1983, the Regional Director of the NLRB stated that no further proceedings were warranted on the Council's ...

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