Pacific Tel. & Tel. Co. v. Communications Wkrs. of Amer.

Decision Date31 August 1961
Docket NumberCiv. No. 61-36.
PartiesPACIFIC TELEPHONE & TELEGRAPH COMPANY, a corporation, Plaintiff, v. COMMUNICATIONS WORKERS OF AMERICA, an unincorporated association, Defendant.
CourtU.S. District Court — District of Oregon

James P. Rogers, of Hart, Rockwood, Davies, Biggs & Strayer, and D. W. Morrison, Portland, Or., for plaintiff.

Duane W. Anderson, San Francisco, Cal., and Don S. Willner, Portland, Or., for defendant.

KILKENNY, District Judge.

Action by plaintiff and counterclaim by defendant to secure declaratory judgment on certain provisions of a collective bargaining agreement between the plaintiff and defendant. Jurisdiction is available under the Labor Management Relations Act (29 U.S.C.A. § 185), and the Federal Declaratory Judgments Act (28 U.S.C. §§ 2201, 2202).

Plaintiff is engaged in the business of transmission of communications in interstate commerce. Defendant, a labor organization, is representing employees of plaintiff in the state of Oregon. Since February 4, 1960, an agreement has been in effect between plaintiff and defendant governing the terms and conditions of employment of plaintiff's employees in said state. On February 4, 1960, one Douglas Johnson and two other employees of plaintiff represented by defendant were suspended. The reason given by plaintiff for the disciplinary suspension was that said employees had violated one of plaintiff's rules which prohibited employees driving one of plaintiff's vehicles an unnecessary distance to purchase gasoline. The suspension was for a period of approximately six hours and each of the employees lost six hours' pay.

Defendant, through its proper officials, invoked the grievance procedures of the contract and all steps thereof were observed by plaintiff and defendant. During the course of processing the grievance the plaintiff agreed to and did rescind the suspension of two of the employees and paid said employees their lost pay. Plaintiff did not rescind the suspension of Johnson, the driver of the vehicle. Upon exhaustion of the grievance procedures defendant requested that the disciplinary suspension of Johnson be submitted to arbitration and plaintiff refused such request. "Disciplinary suspension" or "suspension for disciplinary reasons" as used by the plaintiff in the area covered by the contract means the disciplining of an employee by prescribing an off-work-without-pay status for a period of time insufficient to adversely affect the employee's benefit rights, seniority or employment status. By this usage such suspensions are for less than one calendar month. Such terms have never been defined by agreement of the plaintiff and defendant.

The plaintiff contends that the suspension of an employee for disciplinary reasons, such as the suspension of the employee Johnson, is subject to the provisions of the grievance procedure of the contract, but is not subject to those provisions of the contract which provide for arbitration. Defendant contends that such suspension involves a dispute which requires the interpretation and application of the collective bargaining agreement and that such dispute is subject to arbitration.

The solution to the problem requires a proper construction and interpretation of those general provisions of the contract which deal with arbitration,1 the special arbitration provisions in connection with dismissals,2 and those provisions outlining the procedure on grievances.3

Over the objection of defendant, plaintiff introduced evidence, both oral and documentary, to show that the contract in question grew out of a continuous sequence of contractual negotiations between plaintiff and defendant over the course of many years and that during the course of such negotiations the plaintiff was contending that disciplinary suspensions were a function of management and not subject to arbitration, while the defendant was contending that such suspensions should be subject to arbitration. Likewise, during those negotiations the parties generally construed the language of Article 13 not to require arbitration on this subject. The Court reserved ruling on the admissibility of this evidence, indicating that it might be considered for the purpose offered, i. e., to place the Court in the position of the contracting parties. While evidence may be received for such purpose, Miller v. Robertson, 266 U.S. 243, 45 S.Ct. 73, 69 L.Ed. 265; Seaver v. United States Plywood Corporation, 9 Cir., 1959, 273 F.2d 36; ORS4 42.220, 42.230, it cannot be used to change, vary or contradict the terms of the written instrument and all prior and contemporaneous agreements were merged therein and cannot be shown by parol evidence. Commodity Credit Corporation v. Rosenberg Bros. & Co., 9 Cir., 1957, 243 F.2d 504; Taylor v. Wells, 188 Or. 648, 217 P.2d 236. The parties agree that the contract is unambiguous. Where the instrument is unambiguous, parol evidence is not admissible to show the alleged intention of a party. United States National Bank of La Grande v. Miller, 122 Or. 285, 258 P. 205, 58 A.L.R. 339; Anson v. Hiram Walker & Sons, 7 Cir., 1955, 222 F.2d 100.

The word "grievance" is not defined in the contract. However, such word as used in collective bargaining agreements is not a term of art having a connotation distinct and apart from its meaning in ordinary use. Timken Roller Bearing Co. v. N. L. R. B., 6 Cir., 1947, 161 F.2d 949, 955. Collective bargaining agreements, like other contracts, must be read as a whole and in the light of the law relating to them when made. Mastro Plastics Corp. v. N. L. R. B., 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309.

Both parties concede that the suspension of Johnson was a "grievance" which qualified for processing under the rules of procedure outlined in Article 6. As a matter of fact, the particular grievance was prosecuted by defendant under such rules of procedure. There was no disagreement between the parties on the procedure to be followed until the parties were unable to settle the controversy pursuant to the provisions of Article 6, § 6.01(c). To that point, at least, the parties agreed that the suspension in this case was a grievance which was covered by the contract. We might well invoke here the rule that the practical interpretation of the terms of a contract made by the parties while performing it is deemed a safe guide to the intended meaning of the contract. Lease v. Corvallis Sand & Gravel Co., 9 Cir., 1950, 185 F.2d 570; Kontz v. B. P. John Furniture Corporation, 167 Or. 187, 115 P.2d 319. Since the controversy was not settled in the procedure outlined in Article 6, defendant demanded arbitration pursuant to the provisions of Article 13, § 13.1(a). With certain exceptions, this provision of the contract provides that if a grievance has been handled in accordance with the provisions of Section 6 and has not been settled, either party, within thirty days, may request that the grievance be arbitrated, provided that such grievance gives rise to a controversy regarding the true intent and meaning of any provision of the contract, or regarding a claim that a requirement of the contract has not been fulfilled. It is abundantly clear that disciplinary suspensions are grievances which would be subject to arbitration unless excluded by the provisions of said subdivision (a). In other words, all grievances, with the exception of dismissal of an employee having more than six months and less than two years credited service (Article 8, subsections (b) and (c)) and those under Article 3, Section 3.02 which provide for the use of the grievance procedure and arbitration on the presentation of a question of discrimination or bad faith in connection with employee's pensions, disability and death benefits, are subject to arbitration. Noteworthy is the fact that only the question of bad faith is subject to arbitration on a dismissal of an employee with over two years' service. No explanation is given, nor is there one apparent, for refusing arbitration on dismissal of employees whose service is more than six months and less than two years, when no such provision is made with reference to suspensions of employees or those who have a service record of less than six months. However, the fact that disciplinary suspensions were not specifically mentioned does not lead to the conclusion that the controversy in question is not subject to arbitration. If it were not for the indefinite provisions of Article 8, the provisions of Article 13 with reference to arbitration would be quite clear. Article 8 is an exception to the general arbitration provisions in Article 13. Where there is an exception or reservation in a contract, it is presumed that no other exceptions or reservations are intended. Fendall v. Miller, 99 Or. 610, 196 P. 381. The law will not insert by construction, for the benefit of one of the parties, an exception or condition which the parties, either by design or neglect, have omitted by their own contract. Montgomery v. Board of Education, 102 Ohio St. 189, 193, 131 N.E. 497, 15 A.L.R. 715; Goodman v. Sullivan, 94 Ohio App. 390, 114 N.E.2d 856, 858.

Having made an analysis of the contract, I will now consider two recent decisions of the United States Supreme Court, conceded to be of primary importance by both parties. Plaintiff attempts to distinguish each of these cases from the factual background and the contract in this case, and the defendant claims that each of the cases is almost exactly in point. Let us first consider U. S. Steel Workers v. American Mfg. Co., (1960) 363 U.S. 564, 80 S.Ct. 1363, 4 L.Ed.2d 1432. Here, the union instituted an action to require the arbitration of a question of re-hiring one of its members. The member left the company's employment because of an injury. He applied for and received disability compensation. Sometime after complete recovery he applied for re-employment. The company refused on the ground that he was physically unable to perform the...

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6 cases
  • Communications Wkrs. Of Amer. v. Pacific NW Bell Tel. Co.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • October 30, 1964
    ...that the dispute was one which the parties were, under their agreement, required to arbitrate. Pacific Tel. & Tel. Co. v. Communications Workers of America (D.C. Or.1961) 199 F.Supp. 689. In so ruling it excluded bargaining history from evidence. We held this to be error for the reason that......
  • Penzien v. Dielectric Products Engineering Co.
    • United States
    • Michigan Supreme Court
    • January 5, 1965
    ...negotiations leading to a collective bargaining agreement is far from settled. Cases such as Pacific Telephone & Telegraph Company v. Comnunications Workers of America, D.C., 199 F.Supp. 689 (1961), say that, as to the history of the negotiations, the evidence 'cannot be used to change, var......
  • Ekstedt v. Village of New Hope, 42992--3
    • United States
    • Minnesota Supreme Court
    • January 7, 1972
    ...548, 206 N.E.2d 34 (1965); Butte Miners' Union No. 1 v. Anaconda Co., 159 F.Supp. 431 (D.Mont.1958); Pacific Tel. & Tel. Co. v. Communication Workers, 199 F.Supp. 689 (D.Or.1961). A liberal and broad construction of the term 'grievance' as used in collective bargaining agreements should be ......
  • Lake v. Stubbert
    • United States
    • Oregon Court of Appeals
    • September 29, 1980
    ...exists and 'grievance' is undefined, the Court must give the term its ordinary meaning. Pac. Tel. & Tel. v. Communications Workers of America, 199 F.Supp. 689, 692 (Dist. Oregon 1961), reversed on other grounds 310 F.2d 244 ((9th Cir.), 1962); Butte Miners' Union No. 1 v. Anaconda Co., 159 ......
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