Atterburg v. Anchor Motor Freight, Inc.

• Citation: 425 F. Supp. 841
• Decision Date: 03 February 1977
• Docket Number: Civ. A. No. 1514-73.
• Parties: Clifford ATTERBURG et al., Plaintiffs, v. ANCHOR MOTOR FREIGHT, INC., a corporation organized and existing under the laws of the State of Delaware, Defendant.
• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey

425 F. Supp. 841

Clifford ATTERBURG et al., Plaintiffs, v. ANCHOR MOTOR FREIGHT, INC., a corporation organized and existing under the laws of the State of Delaware, Defendant.

Civ. A. No. 1514-73.

United States District Court, D. New Jersey.

February 3, 1977.

Ralph H. Grebow, Lakewood, N. J., for plaintiffs.

Jamieson, McCardell, Moore, Peskin & Spicer, by Richard A. Ragsdale, Trenton, N. J., Goldfarb & Reznick, by Bernard S. Goldfarb, Cleveland, Ohio, for defendant.

OPINION

CLARKSON S. FISHER, District Judge.

This matter comes before the Court upon defendant's motion for summary judgment. Plaintiffs,¹ who are employed by the defendant, Anchor Motor Freight, Inc. as truck drivers, seek to recover both minimum wages and overtime compensation. Plaintiffs contend that the defendant violated the minimum wage provisions of section 16(b) of the Fair Labor Standards Act, as amended, (hereinafter cited as FLSA), 29 U.S.C. § 216(b), in that it failed to compensate them for certain working time. Plaintiffs further allege that the defendant violated various collective bargaining agreements by failing to pay them for overtime work in accordance with the terms of said agreements.²

Defendant asserts that the plaintiffs are bound, according to the terms of the collective bargaining agreements, to utilize the grievance/arbitration procedure provided for in the agreements. Thus, it is stated that the failure of the plaintiffs to follow this procedure entitles defendant to summary judgment. It is also contended that decisions that have already been rendered regarding disputes that were processed through the grievance machinery, are final and binding. Finally, it is asserted that plaintiffs, as a matter of law, have no minimum wage claim.

There are six contracts which govern the relationship of the parties to this action. There are two National Master Automobile Transporters Agreements (National Agreements), one in effect from June 1, 1970 through August 31, 1973 and the other in effect from September 1, 1973 through May 31, 1976; two Eastern Conference Area Truckaway, Driveaway, Yard and Shop Supplements (Area Supplements), covering the same time periods as the National Agreements; and two Local Riders to the Eastern Conference Supplement (Local Riders), also in effect for approximately the same time periods.

The National Agreements contain detailed provisions regarding grievance and arbitration procedure. Although some of plaintiffs' complaints have been processed through at least some levels of the grievance machinery, the majority of plaintiffs' claims have not been submitted pursuant to the grievance/arbitration procedure contained in the contracts.

This case raises a variety of interesting legal issues. It is well settled, however, that "arbitration is a matter of contact 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 & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). Accord, Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 374, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974). Thus, before these issues can be addressed, it is incumbent upon the Court to resolve the threshold question of whether the plaintiffs' claims are arbitrable grievances within the meaning of the applicable contracts. See, Hussey Metal Division of Cooper Range Co. v. Lectromelt Furnace Division, McGraw-Edison Co., 471 F.2d 556, 557-58 (3d Cir. 1972).

Defendant points to Article 7, section 8 of the National Agreements, which provides:

(a) It is agreed that all matters pertaining to the interpretation of any provision of this National Master Agreement whether requested by the Employer or the Union, must be submitted to the National Automobile Transporters Joint Arbitration Committee, which Committee, after listening to testimony on both sides, shall make a decision.

(b) It is agreed that all matters pertaining to the interpretation of any provision of a Conference (area) Supplement or Local Rider thereto, whether requested by the Employer or the Union, must be submitted to the appropriate Conference (area) Joint Arbitration Committee, which Committee, after listening to testimony on both sides, shall make a decision.

(c) Any decision of any of the Joint Arbitration Committees referred to above, shall be final and conclusive and binding upon the Employer and the Union, and the employees involved.

Section 10 of Article 7 of the 1970-1973 National Agreement further provides that

unless otherwise expressly provided in this Agreement, any and all disputes including interpretations of contract provisions arising under, out of, in connection with, or in relation to this collective bargaining agreement, shall be subject to the grievance procedure of this Agreement.³

These provisions appear to be quite broad in scope and application. Plaintiffs, however, make reference to Article 7, Section 1 of the National Agreements which reads as follows:

Any disputes the parties are unable to settle shall be referred to the appropriate Automobile Transporters Joint Conference Arbitration Committee, except for the following direct violations, which are non-disputable:

(a) Nonpayment of the established rates provided for in this Agreement, Supplement or Riders;

* * * * * *

(d) This paragraph does not apply to disputes over the computation of wages or application of rates.⁴

Although any doubts as to the meaning of the contract must be resolved in favor of arbitration, United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, 363 U.S. at 583, 80 S.Ct. 1347, these provisions appear to broadly exempt, from the grievance machinery, the type of claims asserted by the plaintiffs. Thus, at least with regard to the disputes which previously have not been processed pursuant to the grievance/arbitration machinery, it is held that plaintiffs' claims are not arbitrable.

It should be noted that defendant contends that a variety of the alleged fact situations fail to give rise to a cause of action under either of plaintiffs' two theories of relief, but rather are simply disputes regarding certain terms of the contracts. Although this contention eventually may be found to be the case, the Court is not willing, at the present time, to sift through the numerous claims to determine which do and which do not give rise to such cause of actions. It is sufficient, at this time, to note that many of the claims do appear to state such cause of actions and that the contractual exemptions from the grievance/arbitration provisions appear to be coextensive with both the facts which give rise to a cause of action pursuant to the minimum wage provisions of the FLSA and a cause of action based upon failure to pay overtime compensation in accordance with the applicable collective bargaining agreements, the only two grounds upon which plaintiffs seek relief.

It must now be determined whether disputes, which have been resolved by the use of the grievance machinery, can be the basis of a cause of action when it has been determined that the disputes are not arbitrable.

Although arbitration is a matter of contract, "the agreement to arbitrate a particular issue need not be express — it may be implied from the conduct of the parties". Ficek v. Southern Pacific Co., 338 F.2d 655, 656 (9th Cir. 1964), cert. denied, 380 U.S. 988, 85 S.Ct. 1362, 14 L.Ed.2d 280 (1965). The submission of these disputes, without any protest regarding the propriety of the submission until after their final resolution, evidences a consent on the part of the parties involved to abide by the final determination. See Id.; Amicizia Societa Navegazione v. Chilean Nitrate and Iodine Sales Corp., 274 F.2d 805, 809 (2d Cir.), cert. denied, 363 U.S. 843, 80 S.Ct. 1612, 4 L.Ed.2d 1727 (1960); Island Creek Coal Sales Co. v. Indiana-Kentucky Elec. Corp., 366 F.Supp. 350, 353 (S.D.N.Y.1973). Furthermore, it has been stated that

a claimant may not voluntarily submit his claims to arbitration, await the outcome, and if the decision is unfavorable, challenge the authority of the arbitrators to act.

Ficek v. Southern Pacific Co., supra at 657. Thus, it appears that any resolution regarding claims which were processed pursuant to the grievance/arbitration procedure are final and binding.

This determination, however, does not resolve the issue. Instead, it raises two other questions. The first involves the issue of whether these claims can be the basis of a cause of action under the FLSA. Without intending any comment upon a situation in which there was no prior submission of the claims to arbitration,⁵ this Court adopts the reasoning of the Tenth Circuit Court of Appeals in Satterwhite v. United Parcel Serv., Inc., 496 F.2d 448 (10th Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974). In that case, the court held that

when a wage dispute is submitted to arbitration in accordance with a collective-bargaining agreement, the employees may not thereafter maintain an FLSA § 16(b) suit for recovery on the basis of the same factual occurrence as that presented to the arbitrator.

Satterwhite v. United Parcel Serv., Inc., supra at 452.⁶

The determination that plaintiffs' prior submission of disputes to arbitration preclude them from bringing an action based upon these disputes, pursuant to the FLSA, does not finally resolve the issue regarding the effect of such prior submission. The remaining question, on this issue, which must be resolved is whether plaintiffs' union breached its duty of fair representation, or whether the defendant employer repudiated the contract, thus entitling plaintiffs to bring an action based upon the claims previously submitted to arbitration.⁷

In Vaca v. Sipes, 386 U.S. 171, 185, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967), the United States Supreme Court held that an employee could "obtain judicial review of his breach-of-contract claim...