BLOCK PONTIAC, INCORPORATED v. Candando

• Decision Date: 11 October 1967
• Docket Number: No. 41425.,41425.
• Citation: 274 F. Supp. 1014,66 LRRM 2371
• Parties: BLOCK PONTIAC, INCORPORATED v. Philip A. CANDANDO and Automotive & Body Builders Local Union #724 of the International Association of Machinists.
• Court: U.S. District Court — Eastern District of Pennsylvania

274 F. Supp. 1014

66 LRRM 2371

BLOCK PONTIAC, INCORPORATED v. Philip A. CANDANDO and Automotive & Body Builders Local Union #724 of the International Association of Machinists.

No. 41425.

United States District Court E. D. Pennsylvania.

October 11, 1967.

COPYRIGHT MATERIAL OMITTED

James F. McCort, Philadelphia, Pa., for plaintiffs.

M. Kalman Gitomer, Blank, Rudenko, Klaus & Rome, Philadelphia, Pa., for defendant.

OPINION

MASTERSON, District Judge.

Plaintiffs, Philip A. Candando and Automotive & Body Builders Local Union #724, hereinafter collectively referred to either as plaintiffs or the Union, filed a petition in the Philadelphia Court of Common Pleas on October 11, 1966, to set aside an arbitrator's award upholding the propriety of the discharge of plaintiff-employee, Candando. The defendant-employee, Block Pontiac, removed the case to this court under Title 28 U.S.C. § 1441. Plaintiffs now ask this court to remand the action to the state court on the theory that there is no federal question involved and that therefore this court is without jurisdiction to hear it. The defendant opposes this motion and also moves to dismiss the plaintiffs' petition on the merits.

The genesis of the current litigation, as indicated in the record before the Court, was a work-stoppage allegedly instigated by Candando on October 27, 1965.¹ The work-stoppage lasted for several hours during the afternoon of October 27, and terminated on the morning of October 28, 1965. Defendant-employer considered the work-stoppage illegal under Article XII of the effective Collective-Bargaining Contract entered into by the respective parties March 2, 1964.² The employer accordingly conducted an investigation of the stoppage, concluding that Candando was primarily responsible.³ In accordance with Article XII and Article III of the Collective Bargaining Agreement, the employer decided to discharge Candando.⁴

Candando was notified of the company's action in a letter signed by M. Kalman Gitomer, attorney for the company, under date of November 12, 1965.⁵ The letter initiated the grievance procedure established under Article XIII of the Collective Bargaining Agreement.⁶ The Union preliminarily objected to the procedure which the company had set in motion, but by the late Fall of 1965 acquiesced to the selection of Dr. John Perry Horlacher as the impartial arbitrator to hear the dispute.⁷

The Union maintained its objections to the arbitrator's jurisdiction, and the latter heard arguments on that issue at a hearing conducted on January 7, 1966. The Union then presented four separate objections to the propriety of the arbitration proceeding:

(a) Gitomer had neither real nor apparent authority to discharge any of the employees of Block, and therefore Candando had not been discharged and there was in effect no dispute before the arbitrator;

(b) The employer, Block, could not initiate a grievance procedure under the terms of Article XIII, which authorizes only "* * * one-way arbitration;"

(c) If the Arbitrator were to proceed on the merits involved and sustain the Company, he would be discharging Candando, something he had no authority to do;

(d) The question of whether a dispute is arbitrable or not is a matter for the courts, rather than the arbitrator to decide.⁸

Arbitrator Horlacher considered the Union's arguments and, in a comprehensive written opinion, decided on March 1, 1966, that he had jurisdiction of the dispute.⁹ No immediate appeal was taken from Dr. Horlacher's decision. Accordingly the arbitrator attempted to arrange a date satisfactory to both parties for a hearing on the merits of the dispute. When no mutually satisfactory date could be agreed upon, the arbitrator set September 8, 1966 for the hearing.¹⁰ Despite having received notice of the time of the hearing the Union did not appear for the hearing. The absence of the Union was conceded at the oral argument before this court to be a conscious and advised refusal to participate further in the arbitration process. Dr. Horlacher proceeded to hear the case, and, in a written opinion dated September 21, 1966, decided it on the merits against the Union.¹¹

On October 11, 1966 the Union petitioned the Court of Common Pleas for the County of Philadelphia to strike and set aside the arbitrator's award and to sustain exceptions thereto. The petition was filed pursuant to the Pennsylvania Rule of Civil Procedure and under the Act of 1836, June 16, P.L. 715, 5 P.S. § 4. The petitioner challenged the arbitrator's award by raising the same jurisdictional objections raised and decided in the arbitrator's opinion of March 2, 1966. A further jurisdictional objection was raised at this time.¹² The employer did not respond to this petition in the state court, but instead removed the action to this court under 28 U.S.C. § 1441, and thereafter moved to dismiss on the ground that plaintiffs' petition failed to state a claim upon which relief could be granted.

This court finds no merit in the plaintiffs' contentions with respect to the motion to remand. Plaintiffs' original petition in the state court clearly falls within the scope of Title 29 U.S.C. § 185, § 301 of the Labor-Management Relations Act. The critical phrase in the statute is "* * * industry affecting commerce * * *" which is defined in Title 29 U.S.C. § 142:

(1) The terms "industry affecting commerce" means any industry or activity in commerce or in which a labor dispute would burden or obstruct commerce or tend to burden or obstruct commerce or the free flow of commerce.

The courts consistently have interpreted the phrase broadly as reflecting Congress' intention to exercise its full power of regulation over interstate commerce. Pappas v. American Guild of Variety Artists, 125 F.Supp. 343 (D.C.N.D.Ill. 1954); Prospect Dairy, Inc. v. Dellwood Dairy Co., 237 F.Supp. 176 (D.C.N.D. N.Y.1964); National Labor Relations Board v. Fainblatt, 306 U.S. 601, 607, 59 S.Ct. 668, 672, 83 L.Ed. 1014 (1939). The Supreme Court in Fainblatt, supra, indicated the applicability of the National Labor Relations Act to the present case:

"* * * we can perceive no basis for inferring any intention of Congress to make the operation of the Act depend on any particular volume of commerce affected more than that to which courts would apply the maxim de minimis."

Even if the employer is not involved in interstate commerce this case would still come within the terms of Title 29 U.S.C. § 185 since it is a sufficient basis for jurisdiction if the union only is involved in an industry affecting commerce. The union's petition to set aside alleges that "* * * Local Union #724 is engaged in an industry affecting commerce."

Plaintiff argues against the applicability of the Labor Management Relations Act on the ground that his petition to strike is in the nature of an "appeal" rather than a "* * * suit for violation of a contract * * *", and thus is distinguishable from actions under § 185. Plaintiffs brought their suit in the state court under the authority of the Pennsylvania Act of 1836, P.L. 715, 5 P.S. § 4, entitled Exceptions to Award. This statute does not employ the language of "appeal". Another Pennsylvania Statute, Pa. Act of 1836, June 16, P.L. 715, § 27, 5 P.S. § 71 entitled Parties may appeal, has no application to this case because it deals with the procedure when the arbitration involved is a matter of compulsory submission during the pendency of a suit.

Finally, the substance of plaintiffs' action, no matter how it is entitled, is the allegation that the arbitration procedure pursued by the defendant was a violation of the collective bargaining agreement. Title 29 U.S.C. § 185 clearly has been extended to such types of disputes. See, E. g., Central Metal Products, Inc. v. International Union, 195 F. Supp. 70 (D.C., E.D.Ark., 1961); Amalgamated Meat Cutters and Butcher Workmen of North America v. M. Feder & Co., 224 F.Supp. 739 (E.D.Pa., Opinion by Van Dusen, Jr., 1963); Ludwig Honold Mfg. Co. v. Fletcher, 260 F.Supp. 917 (E.D.Pa.1966); Retail Clerks International Ass'n etc. v. Lion Dry Goods, 369 U.S. 17, 82 S.Ct. 541, 7 L.Ed.2d 503 (1962).

Of course, once it is established that the present action comes within Title 29 U.S.C. § 185 removal to this court was proper under Title 28 U.S.C. § 1441(a). This statute establishes an absolute right to remove from state to federal courts any civil action "* * * of which the district courts of the United States have original jurisdiction * *" See, Ludwig Honold Mfg. Co. v. Fletcher, supra, 260 F.Supp. at p. 918.

Having decided that this court does have jurisdiction of the action, it is now proper to consider the defendant's motion to dismiss that petition on the merits. The limited scope of judicial review of decisions in labor law arbitration has been reflected in both suits to compel arbitration, E. g. Smith's Transfer Corp. etc. v. Local Union No. 107, Int. Bro. of Teamsters, 241 F.Supp. 738 (D.C.E.D. Pa., Opinion by Kraft, J., 1965); United Textile Workers of America etc. v. Newberry Mills, 315 F.2d 217 (C.A. 4, 1963); Rhine v. Union Carbide Corp., 343 F.2d 12 (C.A. 6, 1965); American Radiator, etc. v. Local 7 of Int. Bro., 358 F.2d 455 (C.A. 6, 1966); and in suits reviewing final decisions of arbitrators, E. g., Local 7-644, Oil, Chemical and Atomic Workers International Union, etc. v. Mobil Oil Co., 350 F.2d 708 (C.A. 7, 1965); Balowski v. International U., United A., A. & A. Imp. Wkrs., 372 F.2d 829 (C.A. 6, 1967); Newark Stereotypers' Union v. Newark Morning Ledger Co., 261 F.Supp. 832 (D.C.N.J., 1966); Foster-Forbes Glass Company v. Glass Bottle Blowers Association of United States and Canada, 263 F.Supp. 729 (D.C.N.D.Ind., 1967).

Oil, Chemical, supra, 350 F.2d p. 711, refers to judicial review of arbitration decisions in language representative of the settled law in that area, i. e., "A court's rule in reviewing arbitration decisions made pursuant to labor contracts is severely...