AMALGAMATED MEAT CUT., ETC., L. 195 v. CROSS BROS. MP, INC.

• Decision Date: 20 March 1974
• Docket Number: Civ. A. No. 72-2223.
• Citation: 372 F. Supp. 1274
• Parties: AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, LOCAL 195 AFL-CIO v. CROSS BROTHERS MEAT PACKERS, INC.
• Court: U.S. District Court — Eastern District of Pennsylvania

372 F. Supp. 1274

AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, LOCAL 195 AFL-CIO v. CROSS BROTHERS MEAT PACKERS, INC.

Civ. A. No. 72-2223.

United States District Court. E. D. Pennsylvania.

March 20, 1974.

Charles G. Nistico, Philadelphia, Pa., for plaintiff.

Leonard J. Bucki, Philadelphia, Pa., for defendant.

OPINION

BECHTLE, District Judge.

This case is before the Court on cross-motions for summary judgment. The matter had been before us previously on the motion of the employer defendant for judgment on the pleadings in an action whereby the plaintiff, Local Union 195 ("Local") seeks to set aside a labor arbitrator's award for damages in favor of the defendant. The motion was denied because evidence was lacking in the record demonstrating that the Local had consented to one arbitrator instead of a three-member panel deciding the labor dispute between the parties or had waived its right to object to a single arbitrator deciding the matter. 362 F. Supp. 127 (1973).

The defendant employer, Cross Brothers Meat Packers, Inc. ("Packers"), has now supplied the Court with sworn statements tending to support its contention that the Local did in fact consent to submit the dispute to a single arbitrator for resolution.

Packers has two separate collective bargaining agreements with the Local; one for its slaughtering division employees, and the other for its boning division. Although the "no-strike" clause in each is practically identical, the grievance procedures provisions are different. The pertinent portion of the grievance provision in the "Slaughter House" agreement is set forth in our prior Memorandum Opinion. 362 F.Supp. at 129. The comparable provision appears as Section 2 of Article IX of the "Boneless Meat Dealers Association" agreement.¹ Each provision permits that if an adjudgment agreeable to both sides is not reached during the prior procedure, the matter is to be resolved by a single arbitrator in the case of the slaughtering division employees and an impartial chairman when employees of the boning division are involved. When a dispute involving a common nucleus of facts, as here, concerns both groups of employees, apparently the parties could agree to follow the procedure set up in either agreement or insist that each be used for the respective group of employees.

At the outset, it is clear on the face of the agreements that the dispute was a proper subject of arbitration or a decision by a single chairman. The jurisdiction of Professor Emanuel Stein to hear and decide the entire matter was challengeable under the agreements on the ground of an insufficient quorum and that the boning division employees were entitled to have an impartial chairman decide the matter where they were concerned. See, for example, Bethlehem Mines Corp. v. United Mine Workers of Amer., 344 F.Supp. 1161, 1167 (W.D. Pa.1972).

The Local has reiterated its assertion that at no time did it agree to Professor Stein as an arbitrator, nor did it waive its rights to have the matter decided in accordance with the terms of the collective bargaining agreements. In support of this assertion, the Local relies on one event: On the morning the parties appeared at the first arbitration hearing, one of its attorneys, Mark P. Muller, voiced objection to the jurisdiction of the American Arbitration Association ("AAA") and the designated arbitrator, Professor Stein, to arbitrate the dispute. Packers does not deny that the oral objection was made but maintains that it was directed against arbitration in general and if the dispute were arbitrable the Local had no objection to a single arbitrator deciding the merits of the dispute. The Local's objection to his jurisdiction did not expressly include that ground.² To show that attorney Muller did not have that ground in mind when the objection was made, Packers submits the affidavit of John Thomas, its industrial manager, which reveals that in the years between 1967 and 1972 all six company-union grievances unresolved at the second step of the grievance procedure were submitted to a single arbitrator for resolution, although the collective bargaining agreement provided for a panel of three arbitrators. If these facts had been presented to the arbitrator, he could have found that the parties had thereby amended the grievance provisions to eliminate the requirement of three arbitrators. Such a finding would have been for the arbitrator, not the Court, to decide. However, those facts do not appear to have been presented to him. Merely because a party to a collective bargaining agreement has a history of agreeing to arbitration before a single arbitrator does not prevent that party as a matter of law from insisting on its right to have a dispute decided as provided in the written agreement. Moreover, the dispute here involved substantial damage claims alleged to have resulted from illegal picketing and is quite different from a case involving a claim by an employee that he was wrongfully discharged. Five of the previous six disputes were of that kind.

Packers, in addition to relying on past procedures, offers the deposition of Earl Helfand, tribunal administrator for AAA, which was taken after the arbitrator made his award. His testimony reveals that the Local itself had initiated the selection of Professor Stein as sole arbitrator and it (Packers) did not agree to have him act as arbitrator until it was informed by AAA that the Local had selected him from the second list of names submitted to the parties by AAA. The parties did not agree on a mutually acceptable individual to act as arbitrator from the first list of names. The issue of consent or waiver of a lack of quorum on the part of the Local was within the province of the arbitrator and not this Court to rule upon. True, the arbitrator did not discuss the matter in his opinion.³ He is not required to do so. Steelworkers v. Enterprise Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); Sobel v. Hertz, Warner & Co., 469 F.2d 1211 (2nd Cir. 1972). However, the fact that an opinion did not mention the issue does not establish that the arbitrator did not rule upon it. Graham v. Acme Markets, Inc., 299 F. Supp. 1304, 1308-1309 (E.D.Pa.1969). Had Professor Stein been aware of how he was selected before he made his award, it could be said that he found that the Local had consented to his acting as a single arbitrator or had waived its right to object on that ground. We cannot with reason say the opinion decided the matter against the Local on that ground for we do not know whether Professor Stein was aware of how he was selected. Nevertheless, there is a basis for sustaining the jurisdiction of a single arbitrator to decide the dispute. The arbitrator reached the merits and awarded Packers damages. Therefore, it must be presumed that he ruled against the Local on the ground that its objection to his jurisdiction did not encompass the reason it now makes before us.

The Local contends the arbitrator committed several errors of law which require our setting aside his award or refusing to enforce it. For a proper...