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

• Decision Date: 14 May 1964
• Docket Number: No. 61-C-262.,61-C-262.
• Parties: PROCTER & GAMBLE INDEPENDENT UNION OF PORT IVORY, N. Y., Plaintiff, v. The PROCTER & GAMBLE MFG. CO., Defendant.
• Court: U.S. District Court — Eastern District of New York

229 F. Supp. 501

PROCTER & GAMBLE INDEPENDENT UNION OF PORT IVORY, N. Y., Plaintiff, v. The PROCTER & GAMBLE MFG. CO., Defendant.

No. 61-C-262.

United States District Court E. D. New York.

May 14, 1964.

Garbarini, Scher, DeCicco & Berardino, New York City, for plaintiff; Sabino J. Berardino, New York City, and Martin Loftus, Newark, N. J., of counsel.

Battle, Fowler, Stokes & Kheel, New York City, Dinsmore, Shohl, Barrett, Coates & Deupree, Cincinnati, Ohio, for defendant; Samuel R. Pierce, New York City, Jack G. Evans, Cincinnati, Ohio, of counsel.

RAYFIEL, District Judge.

The plaintiff, a labor union, brings this action under Section 301 of the Labor Management Relations Act (Section 185 of Title 29 U.S.C.) to compel the defendant to arbitrate two disputes or grievances pursuant to a collective bargaining agreement dated June 23, 1960. The disputes involved Robert Spittel and Frank Wilson, employees of the defendant.

My colleague, Judge Bartels, granted the plaintiff's motion for summary judgment requiring the defendant to arbitrate the Wilson dispute and denied the motion as to the Spittel dispute. See 195 F.Supp. 64. The defendant appealed from the decision in Wilson, which was affirmed. See 298 F.2d 647. The plaintiff did not appeal from the order denying its motion in Spittel and that matter was tried before me.

These are the facts:

On January 22, 1950 Procter & Gamble Independent Union of Port Ivory, New York, was certified by the National Labor Relations Board (the Board) as the collective bargaining representative for the defendant's production and maintenance employees at its factory at Port Ivory, in Staten Island, Richmond County, New York. This unit consisted of all production and maintenance employees, including factory clericals, laboratory employees, and fire inspectors. Excluded were office clerical employees, who composed a separate unit represented by the same union and recognized by the defendant.

Subsequent to the certification separate collective bargaining agreements, identical except for the employees covered thereby, were entered into for each of the said units. The last of those was entered into on June 23, 1960. Since they are identical in terms I shall refer to both of them as "the contract."

Spittel, employed as a factory clerical employee, was also active in the affairs of the union as a shop steward. In 1960 a vacancy occurred for the position of cost clerk, a category higher than "factory clerical", the one in which Spittel was then employed. Under the terms of the contract all employees who had the necessary seniority and qualifications were eligible to "bid" on this job. Spittel was one of the bidders and was selected as the employee with most seniority among those qualified for the position.

He was assigned to the new position on September 8, 1960, but for some five weeks thereafter was not given the increase in salary to the minimum rate of pay for that position because, the defendant contended, he required training and supervision during that period to qualify him to carry out his duties properly. In support of its contention it cited Article III, Section 5, paragraph 3 of the contract which provides that:

"Any employee taking a new job classified at a higher rate than his former job shall receive at least the minimum job rate for the new job when he is able to handle the job. An employee will be conclusively presumed to be able to handle the job when he is able to perform, and does perform, all the duties of the job satisfactorily by himself without special supervision." (Emphasis mine).

Upon the employer's failure to pay him the minimum rate of pay for his new position Spittel filed a grievance for "Violation of past practices and agreements, and discrimination against a union official."

The grievance procedure is outlined in Article XI of the contract. A grievance is therein defined as "any difference between the employer and union, or employee or employees covered by this agreement, as to any matter involving the interpretation or application of any provision of the agreement (or any matter directly affecting the employee in respect to hours of work, wages, or conditions of employment)." It provides for three steps involving negotiation between representatives of the union and the employer, and for arbitration as the fourth step if the grievance has not been settled in the prior proceedings. The contract contains a "no strike" provision, prohibiting the employees from conducting a work stoppage or slowdown etc.

The Spittel grievance was processed through the first three steps without success. The disagreement is summarized in the résumé of the third step contained in defendant's Exhibit "E," entitled

"SUMMARY OF MEETING HELD OCTOBER 11, 1960 BETWEEN THE MANAGEMENT AND EXECUTIVE BOARD OF THE PROCTER & GAMBLE INDEPENDENT UNION OF PORT IVORY" as follows:

"Nature of Grievance: — Violation of past practices and agreements and discrimination against a Union Official.

"Company Answer: There was no discrimination against a Union official and no violation of the Contract. It is correct that other people have been transferred into the same job at minimum rate.

"Union's Position: The Union feels that this employee should be treated as all others were in the past. We feel it is a violation of past practice and agreements and that it is discrimination against a Union official."

The Union, in a letter dated November 17, 1960, demanded arbitration of the grievance. Pursuant to the terms of the contract it appointed its president, Robert Reed, as an arbitrator, and the defendant appointed Robert J. Eichner, one of its plant managers, as its arbitrator. The contract provides that the two arbitrators thus named select a third arbitrator. They met on two occasions but failed to select a third arbitrator because Mr. Eichner insisted that there first be a determination of the issues to be arbitrated.

It was the position of the union that it had the right to arbitration of its grievance under the language stated by it in the first of the four-step grievance procedure, namely, "Violation of past practices and agreements, and discrimination against a Union official." The employer, on the other hand, contended that it was obliged to arbitrate only such grievances as involved the interpretation or application of a provision of the contract, and that it had never agreed to arbitrate "past practices and agreements." The defendant made clear its position in the matter in a letter to the union, dated February 1, 1961, marked plaintiff's Exhibit "4", wherein it stated its reasons for revoking its designation of Mr. Eichner as an arbitrator. On April 7, 1961 this action was commenced.

Prior to its commencement, and early in 1960, the union made application to the Board of Standards and Appeals of the Department of Labor of the State of New York for the approval of its proposed certificate of incorporation as a membership corporation under the name Procter & Gamble Independent Union of Port Ivory, Inc. After a hearing thereon held on March 31, 1960 the certificate was approved and on August 1, 1960 it was filed in the office of the New York Secretary of State. On June 4, 1962 the union filed a certificate with the said Secretary of State changing its name from Procter & Gamble Independent Union of Port Ivory, Inc. to Independent Oil & Chemical Workers, Inc., its present name.

On March 18, 1963 the union made application to the Board to amend its certification as bargaining representative for the production and maintenance workers to reflect those changes and to substitute the name Independent Oil & Chemical Workers, Inc., for the name Procter & Gamble Independent Union of Port Ivory, Inc. on the certification. This application was unsuccessfully opposed by the defendant and on August 14, 1963 the certification was amended accordingly. See plaintiff's Exhibit "3".

The facts concerning the incorporation of the union were brought to the attention of my colleague, Judge Dooling, during the course of the pre-trial conference held herein, and his pre-trial order, dated May 14, 1963, directed the plaintiff to amend its complaint to allege its incorporation and succession in interest to the unincorporated union, etc., and directed the defendant to amend its answer to respond thereto. Pursuant to such order the plaintiff served and filed an amended complaint and the defendant filed an amended answer.

At the trial the plaintiff contended that the Spittel grievance, predicated on the defendant's alleged violation of the provisions of the contract, particularly Article VII thereof, prohibiting discrimination against an employee by reason of union activity, was arbitrable, while the defendant argued (1) that the language of the grievance, "Violation of past practices and agreements and discrimination against a Union official," included matters outside the scope of "interpretation and application" of the provisions of the contract, as restricted by Article XI of Step 4 thereof, and (2) that the plaintiff, unincorporated association lacked capacity to sue, and...