Procter & Gamble Ind. U. v. Procter & Gamble Mfg. Co.

• Decision Date: 10 December 1962
• Docket Number: Docket 27569.,No. 61,61
• Parties: The PROCTER & GAMBLE INDEPENDENT UNION OF PORT IVORY, N. Y., Plaintiff-Appellee, v. The PROCTER & GAMBLE MANUFACTURING COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

312 F.2d 181 (1962)

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

No. 61, Docket 27569.

United States Court of Appeals Second Circuit.

Argued October 23, 1962.

Decided December 10, 1962.

Martin J. Loftus, Newark, N. J., (Sabino J. Berardino, New York City, on the brief), for plaintiff-appellee.

Jack G. Evans, of Dinsmore, Shohl, Barrett, Coats & Deupree, Cincinnati, Ohio (Harold S. Freeman, Cincinnati, Ohio, of counsel; Theodore W. Kheel and Samuel R. Pierce, Jr., of Battle, Fowler, Stokes & Kheel, New York City, on the brief), for defendant-appellant.

Before LUMBARD, Chief Judge, and MOORE and HAYS, Circuit Judges.

HAYS, Circuit Judge.

Plaintiff seeks to compel defendant to arbitrate certain grievances. The district court granted plaintiff's motion for summary judgment. We reverse and grant summary judgment for the defendant.

The plaintiff, a labor union, is the collective bargaining agent for a unit of employees at defendant's Port Ivory plant on Staten Island. The employer and the union entered into a collective bargaining agreement which was effective for the period April 30, 1959 to and including April 30, 1960. The agreement provided for automatic renewal unless notice was given by either party at least sixty days prior to the expiration date. In accordance with the terms of the agreement the Union gave notice more than sixty days prior to April 30, 1960, of its desire to negotiate a new agreement. Negotiations were undertaken and continued for some time. Employer and union agreed to extend the collective agreement for two weeks, May 1 to May 14, 1960. On May 13 the union refused the employer's offer to agree to a further extension. The union did not, until May 13, notify the Federal Mediation and Conciliation Service and the State Mediation Board, as required by Section 8(d) (3) of the National Labor Relations Act (29 U.S.C. § 158(d) (3)). A new agreement was finally reached and became effective on June 23, 1960.

The collective agreement of April 30, 1959-April 30, 1960 contained an arbitration clause¹ which, we may assume, would have covered the grievances for which the union now seeks arbitration. These grievances were submitted to the employer on May 21 and June 7, 1960. The grievance submitted on May 21 arose out of disciplinary measures taken by the employer on May 18 against two employees for their refusal to accept an assignment of overtime work on May 17. The grievance submitted on June 7 concerned the employer's discipline on May 20 of certain employees for walkouts which occurred on May 18 and May 20. Thus the activities on which the discipline was based, the disciplinary measures the propriety of which the union seeks to arbitrate, and the filing of the grievances all occurred in the interval between the termination date of the old agreement and the effective date of the new agreement.

The union demanded arbitration of the grievances and, when the employer refused to arbitrate, brought the present action to compel arbitration.

The issue is whether the employer was bound to arbitrate these grievances either by any agreement to arbitrate existing at the time these grievances arose, or by reason of any duty created by law.

Before we turn to a discussion of that issue it is necessary to consider a subsidiary issue which was raised by appellant.

Appellant argues that summary judgment should not have been granted because there were controverted issues of fact requiring trial.² As to one of these issues, i. e. whether the contract continued in effect after May 14, "by action of the parties", an issue with which we will deal later, we have found no genuine controversy since the evidence shows that the contract was not so continued. The other issue involves the claim of the employer that the grievances in question were "settled" in connection with, and as a part of the consideration for, the new collective agreement of June 23, 1960. We find a determination of this issue unnecessary. Since we hold that in any event there was no effective agreement to arbitrate, it is of no consequence whether the grievances were in fact settled or withdrawn.

The duty to arbitrate is wholly contractual and the courts have the obligation to determine whether there is a contract imposing such a duty.

"The Congress * * * has by § 301 of the Labor Management Relations Act, assigned the courts the duty of determining whether the reluctant party has breached his promise to arbitrate. 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 v. Warrior & Gulf Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960).

Our task is, then, to determine whether at the time these grievances arose there was any agreement to arbitrate grievances.

We hold that the district court was correct in finding that the collective bargaining agreement which contained the applicable arbitration agreement expired by its own terms on April 30, 1960, and that the agreement extending the earlier agreement expired on May 14, 1960. It had, then, already expired before the occurrence of the activities out of which these grievances developed.

We reject appellee's argument that the agreement continued in effect by reason of the action of the parties. On May 13, the employer offered to continue the agreement in effect for another limited period. This offer met with a flat refusal from the union. The fact that the employer chose thereafter not to change many of the working conditions which had prevailed under the expired agreement does not tend in any way to establish that that agreement was, or was considered to be, or was treated as still effective.³ It is perfectly natural and entirely customary that, in the short hiatus which is expected to occur between the expiration of one collective agreement and the negotiation of the next, no great change will be made in the existing conditions. Sometimes, as here, a part of the hiatus is covered by an agreed-upon extension of the terms of the expiring agreement. Where no such extension is negotiated, or where the period of the extension has also expired, there is no ground whatever for considering that the old agreement still governs the relationship of the parties. See Paterson Parchment Paper Co. v. International Bhd. of Paper Makers, 191 F.2d 252 (3d Cir., 1951), cert. denied, 342 U.S. 933, 72 S.Ct. 376, 96 L.Ed. 694, petition for rehearing denied, 342 U.S. 956, 72 S.Ct. 625, 96 L.Ed. 710 (1952); Lorenz-Schneider Co. v. Bakery Union, 208 F.Supp. 77 (E. D.N.Y.1962); International Air Line Pilots Ass'n v. Southern Airways, Inc., (M.D.Tenn.1962) (44 Lab. Cas. ¶ 17460); Food Handlers Local 425, etc. v. Arkansas Poultry Co-op, Inc., 199 F.Supp. 895 (W.D.Ark.1961).

But the district court held that in spite of the expiration of the old agreement, "the relationship of employer-employee continued," and that one of the "conditions" of the continuing relationship was the right to arbitrate grievances.

The right to arbitrate under a collective agreement is not ordinarily a right incident to the employer-employee relationship, but one which is incident to the relationship between employer and union. Under the collective agreement between the parties, it was the union which had the right to take grievances to arbitration, not the individual employees. See Black-Clawson Co. v. International Ass'n of Machinists, 312 F. Supp. 818 (N.D.N.Y.1962) (45 Lab. Cas. ¶ 17643), aff'd 313 F.2d 179 (2d Cir., 1962); Ostrofsky v. United Steelworkers, 171 F.Supp. 782 (D.Md.1959), aff'd, 273 F.2d 614 (4th Cir.), cert. denied, 363 U.S. 849, 80 S.Ct. 1628, 4 L. Ed.2d 1732 (1960); United States v. Voges, 124 F.Supp. 543 (E.D.N.Y. 1954); Donnelly v. United Fruit Co., 75 N.J.Super. 383, 183 A.2d 415 (Super. Ct.App.Div.1962); Parker v. Borock, 5 N.Y.2d 156, 182 N.Y.S.2d 577, 156 N.E.2d 297 (1959); Cf. Falsetti v. Local Union No. 2026, U.M.W., 400 Pa. 145, 161 A.2d 882, 892 (1960). The agreement provides that "in the event that the arbitration is called for by either party hereto, the Employer and the Union, shall appoint an arbitrator * * *". The wording of the grievance clause as a whole⁴ clearly indicates that only the union or the employer can demand arbitration.

Moreover the right to arbitrate is in no sense an incident or a "condition" of the employer-employee relationship as such, but depends, in exactly the same degree as does the union's right to arbitrate, on the existence of an agreement to arbitrate. In the absence of such an agreement no employee has the right to compel his employer to arbitrate any matter whatsoever. Thus even if it could be argued that employees had any right to compel arbitration under the collective agreement, which expired on April 30 or May 14, there would be no more reason to hold that that right survived the expiration of the agreement to arbitrate than there would be to hold that the union's right so survived. The attempt to argue for a transfer of the right to arbitrate from union to employees upon the expiration of the collective agreement finds no support whatever in authority or logic.

Zdanok v. Glidden Co., 288 F.2d 99 (2d Cir., 1961), aff'd on other grounds, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962), provides no such support. In that case certain seniority provisions of a collective agreement were thought to be prospective in character, that is, they were read to provide for seniority rights which were expected to continue beyond the termination of the collective agreement. Thus, though the agreement involved was for a period of two years, it provided for the survival of rights of rehiring over a period of three years. Seniority was likened in this respect to "vested" pension rights which continue beyond the termination of a collective agreement.

The...