(2d Cir. 1990). The Contract states that plant-wide seniority will be the deciding factor in awarding a job when more than one qualified employee has bid on it (Item 28, Ex. A, Art. V), and the Apprentice Standards define a journeyman as one who has satisfactorily completed the Apprenticeship Program (Item 32, Ex. B, Art. X). Ehrenburg asserts that because the language in these written agreements is unambiguous, the defendants cannot introduce parol evidence of an oral agreement to interpret the Contract and Standards to include the "no-first-bid" rule.
Ehrenburg further contends that OAB and the Union were prohibited from making changes in the Apprenticeship standards without his written consent. Article XIII reads:
These standards of Apprenticeship may be amended or new schedules added at any time upon mutual agreement of the Company and the Union, providing that no such change or amendment shall alter an Apprenticeship Agreement in force at the time of such change without written consent of the apprentice; and providing such change or amendment shall be submitted to the Registration Agencies. A copy of such amendment will be furnished to each apprentice and the Union by the Company.
The Plaintiff insists that he was never informed of the oral agreement and never asked to sign a written consent to such a change.
OAB counters that the restriction on parol evidence in commercial contract law does not extend to labor contracts, which are governed by more flexible federal labor law policy. The proper interpretation of a labor contract "is not confined to the express provisions of the contract, as the industrial common law--the practices of the industry and the shop--is equally a part of the collective bargaining agreement although not expressed in it." United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581-82, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960). Federal courts have consistently included evidence outside the parameters of the written agreement, including oral agreements, in interpreting collective bargaining agreements under federal labor law. See, e.g., Marine Transport Lines, Inc. v. Int'l. Organization of Masters, Mates & Pilots, 878 F.2d 41 (2d Cir. 1989), cert. denied, 493 U.S. 1022, 107 L. Ed. 2d 743, 110 S. Ct. 724 (1990).
OAB argues that even if this court were to apply the parol evidence rule, evidence of the oral "no-first-bid" agreement would be admissible, because the Contract clauses are not unambiguous. The Contract states that plant-wide seniority is the determining factor in awarding a job bid "among those employees of a given department, who are qualified to do the work which must be done." (Item 28, Ex. A, Art. V(7).) OAB argues that neither the Contract nor the Apprenticeship standards establish when apprentices are considered "employees of a given department" nor when they become "qualified to do the work which must be done." The oral "no-first-bid rule may be viewed either as a clarification of this language or as an additional term to the agreement (Item 45, pp.6-7). OAB contends that parol evidence is admissible in either case. Marine Transport, supra at 42.
The flexibility of federal labor law permits this court to consider oral agreements between OAB and the Union within the context of the overall labor-management agreement package. If there were no dispute that the oral agreement exists and was widely known within the plant both workers and supervisors, plaintiff's lack of knowledge of the agreement would be the same as his lack of knowledge about a provision in the contract--he would still be governed by it. But it follows that an oral agreement must be widely acknowledged to become part of a collective bargaining relationship. The union and management could not make a secret agreement not to abide by certain provisions of the contract and then offer evidence of such agreement to defeat a suit for breach of contract/duty of fair representation. Merk v. Jewel Food Stores, 945 F.2d 889 (7th Cir. 1991).
Ehrenburg does not allege that the Union and OAB have deliberately kept the "no-first-bid" rule secret. However, he has produced enough evidence casting doubt about its existence, incorporation, and application to raise a material issue of fact. Therefore, summary judgment is denied to plaintiff and both defendants.
The court will hold a telephone conference on December 16, 1992, at 2 p.m. with the attorneys to fix a further schedule. Buffalo counsel shall attend in chambers.
JOHN T. CURTIN
United States District Judge
Dated: December 7, 1992
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