PROCTER & GAMBLE IND. UNION v. Procter & Gamble Mfg. Co.

• Decision Date: 20 June 1961
• Docket Number: No. 61-C-262.,61-C-262.
• Citation: 195 F. Supp. 64
• Parties: PROCTER & GAMBLE INDEPENDENT UNION OF PORT IVORY, N. Y., Plaintiff, v. PROCTER & GAMBLE MANUFACTURING COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of New York

195 F. Supp. 64

PROCTER & GAMBLE INDEPENDENT UNION OF PORT IVORY, N. Y., Plaintiff, v. PROCTER & GAMBLE MANUFACTURING COMPANY, Defendant.

No. 61-C-262.

United States District Court E. D. New York.

June 20, 1961.

Sabino J. Berardino, Brooklyn, N. Y., for plaintiff, Martin J. Loftus, Newark, N. J., of counsel.

Hale, Stimson, Russell & Nickerson, New York City, for defendant, Jack G. Evans, Dinsmore, Shohl, Dinsmore & Todd, Cincinnati, Ohio, Eugene H. Nickerson, New York City, of counsel.

BARTELS, District Judge.

Plaintiff, a labor union, has instituted this action against defendant-employer seeking judgment (a) compelling the employer to submit certain grievances to arbitration in accordance with its collective bargaining agreement (referred to as the "Agreement") and (b) awarding damages to the Union for violation of the Agreement. According to Article XI of the Agreement, a grievance is any difference between the parties "as to any matter involving the interpretation or application of any provision of this Agreement (or any matter directly affecting the employee in respect to hours of work, wages, or conditions of employment)". A grievance procedure is set up in the Agreement, consisting of four Steps, only one of which, Step 4, deals with arbitration and that step may only be invoked with respect to those grievances "having to do with the interpretation or application of any provision" of the Agreement.

After joinder of issue the Union moved for summary judgment pursuant to Rule 56, Fed.Rules Civ.Proc., 28 U.S.C.A., to compel arbitration. According to the complaint and the letters annexed thereto the grievances sought to be arbitrated are as follows:

(1) "The Spittel Grievance": On September 16, 1960 the Union filed a grievance with the employer charging "Violation of past practices and agreements and discrimination against a union official", in that the employer failed to pay the minimum wage required by the collective bargaining agreement for a cost clerk job for which Spittel bid in accordance with the collective bargaining agreement. The grievance was processed through the first three Steps which preceded arbitration without a disposition satisfactory to both parties. The Union and employer each designated an arbitrator. On February 1, 1961 the employer wrote to the Union stating that it would not arbitrate the dispute because of a disagreement between the two over the issue or issues to be submitted to arbitration, in that the Union claimed not only a violation of Article III, sec. 5 and Article VII of the collective bargaining agreement, but also sought to additionally submit to arbitration "past practices and agreements" without specifying what past practices and agreements were violated, and also that such practices and agreements were outside the limits of the arbitration provisions of the Agreement, quoting Article XI, sec. 5, which provides:

"The arbitrators shall confine their consideration to the issue or issues submitted in writing by the Employer and the Union before the Board of Arbitration convenes, and shall neither add to nor subtract from the written provisions of this Agreement in reaching their decision."

The employer further asserted that it would not arbitrate matters it had not expressly contracted to arbitrate and therefore revoked the authority of the arbitrator it had appointed.

(2) "The Wilson Grievance": On September 12, 1960 the Union filed a grievance with the employer charging violation of Article XIV, sec. 5 "Foreman Working — Violation of Agreements". The Union charges that Wilson, a foreman, was performing work of a non-supervisory nature regularly assigned to other employees. The employer replied that such work was part of Wilson's training and thus permitted under Article XIV, sec. 5 of the Agreement. Again the parties met and after completing the first three steps of the grievance procedure prior to arbitration, appointed arbitrators. In its letter of February 1, 1961 the employer stated that the Union claimed not only a violation of Article XIV, sec. 5, but also asserted additionally the "Violation of Agreements" without specifying what "agreements" were violated, and that it would not arbitrate issues outside of the collective bargaining agreement. Consequently, the employer revoked the authority of the arbitrator it appointed because of the Union's failure to delete the words "Violation of Agreements" from the statement of issues to be submitted to arbitration, relying on Article XI, sec. 5, supra.

As above indicated, not every grievance is subject to arbitration. Only those differences involving interpretation or application of any provision of the Agreement may be submitted. Subdivision 5 of Article XI of the Agreement (supra) provides that the issue or issues must be submitted to the arbitrators in writing. While neither party is required to frame the issues in the other's phraseology¹, the disputes must fall within the category of arbitrable grievances and must be submitted in writing for "* * * arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. * * *" United Steelworkers of America v. Warrior and Gulf Navigation Company, 1960, 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409. The question to be decided is whether the dispute submitted in writing to the arbitrators is a difference which is subject to arbitration. It is not for the Court to decide the merits of this issue since the judgment bargained for was the...