Cape Cod Gas Co. v. United Steelworkers of America, Local 13507
Decision Date | 14 May 1975 |
Citation | 3 Mass.App.Ct. 258,327 N.E.2d 748 |
Parties | , 89 L.R.R.M. (BNA) 2499, 77 Lab.Cas. P 10,884 CAPE COD GAS COMPANY v. UNITED STEELWORKERS OF AMERICA, LOCAL 13507. |
Court | Appeals Court of Massachusetts |
G. Lamar Crittenden, Jr., Boston, for plaintiff.
John .f. McMahon, Boston, for defendant.
Before ROSE, GOODMAN and GRANT, JJ.
This is an application by the plaintiff (the company), filed in the Superior Court under G.L. c. 150C, § 11, to vacate an award made by the board of conciliation and arbitration (board)--see G.L. c. 23, § 7--in an arbitration between the company and the defendant (union), parties to a collective bargaining agreement which provided for arbitration by the board as the final step of a grievance procedure. 1
The facts out of which the grievance arose, as found by the board and substantially uncontroverted, are as follows: On December 29, 1972, one Ernest Currie, an employee of the company, was assigned to work on the 8:00 A.M. to 4:00 P.M. shift on December 31. He was also asked to work the following shift from 4:00 P.M. to midnight. After changing his New Year's plans, he agreed to do so. He was thus scheduled to work two eight-hour shifts 'back to back' on December 31, extending through New Year's Eve. At about 10:00 A.M. on December 31, while working on the first of the two scheduled shifts, he was notified that he would not be needed to work the later shift. He claimed he was entitled to eight hours' pay, and the union and the company jointly referred the controversy to the board under the following submission:
The board, with the industry member dissenting, 'after having weighed the evidence and arguments of the parties,' made the following award: The company's application to vacate the award was denied in the Superior Court, and judgment was ordered to be entered accordingly. The company appealed to this court. We hold that the Superior Court correctly refused to vacate the award.
The claim was based on the clause of the contract (Art. VI, § 1(e)) insuring that '(e)mployees shall be assigned a definite time to report for work' and providing for advance notice of lack of work and a guarantee of eight hours' work for any employee who reports at his regular time. The submission, made jointly by the parties, thus left to the board the question how, in the circumstances of this case, to deal with the frustration of an employee's expectation of work for which he reported, and the resulting inconvenience. Looking to discover how this not uncommon irritant--the subject matter of Article VI, § 1(e)--had been handled by the parties, the board found that 'the evidence regarding past practice reveals that the company has either paid for or provided 8 hours work for those employees who reported before they were notified of the cancellation of their extra or overtime work.' 2
The award, based on the contract clause informed by the practice, complied precisely with the provision of the arbitration clause that the board may not 'pass upon or decide any question except that which is submitted to them in the Submission Agreement.' (See fn. 1, supra.) Thus '--citing United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. at 599, 80 S.Ct. at 1362. 'Even a grossly erroneous decision is binding in the absence of fraud.' Trustees of Boston & Maine Corp. v. Massachusetts Bay Transp. Authy., --- Mass. ---, ---, b 294 N.E.2d 340, 343 ( ). 3
The company argues that in dealing with this submission the board was limited by subclause (a) (see fn. 1, supra), which provides that the board may not 'add to . . . or modify any of the terms of this Agreement'--a contention which is open to it. Morceau v. Gould-National Batteries, Inc., 344 Mass. at 124, 181 N.E.2d 664. GREENE V. MARI & SONS FLOORING CO., INC., ---MASS. AT---- ---, 289 N.E.2D 860.C See School Committee of Hanover v. Curry, --- Mass.App. ---, --- - ---, d 325 N.E.2d 282 (1975). This subclause is common in arbitration clauses. See Holly Sugar Corp. v. Distillery, Rectifying, Wine & Allied Wkrs. Int'l Union, AFL-CIO, 412 F.2d 899, 904 (9th Cir. 1969) which characterizes such a subclause as 'boiler--plate.' Indeed, a substantially similar provision was involved in Morceau v. Gould-National Batteries, Inc., 344 Mass. at 123--124, 181 N.E.2d 664, in which the court said (p. 124, 181 N.E.2d p. 667), "(I)n the absence of fraud the decision of the arbitrators is binding even though they may have committed an error of law or fact.' (citing cases) . . . 'The parties received what they agreed to take, the honest judgment of the arbitrator as to a matter referred to him.' (citing cases).'
S.Ct. 1343, 1345, 4 L.Ed.2d 1403, and fn. 1 (1960), the court referred to an arbitration clause containing just such a subclause as ' ' The court pointed out, without dealing explicitly with this subclause (p. 567, 80 S.Ct. p. 1346); In our case, too, in which the contract binds the parties to arbitrate 'any difference . . . between the Company and the Union or its members as to the meaning and application of this Agreement' (see fn. 1, supra) and contains a no-strike clause, the board was empowered to deal with the 'subject submitted to' them. TRUSTEES OF THE BOSTON & MAINE CORP. V. MASSACHUSETTS BAY TRANSP. AUTHY., --- MASS. AT ---, 294 N.E.2D 340.E Western Iowa Pork Co. v. National Bhd. Packinghouse & Dairy Wkrs., 366 F.2d 275, 278 (8th Cir. 1966). Humble Oil & Ref. Co. v. Local 866, 447 F.2d 299, 233 (2d Cir. 1971).
The company also seems to argue that subclause (a) (see [3 Mass.App.Ct. 263] fn. 1, supra) somehow precludes the consideration of plant practice. The answer to this contention is found in Humble Oil & Ref. Co. v. Local 866, supra, at 232. The contract there provided for arbitration of a violation of 'an express provision' of the contract; the court in upholding an arbitration award used much the same approach as we adopt. The court said (p. 232): 'In construing the provisions of Article 30--1 of the contract to determine the employees' recall rights, the Chairman made use of a typical battery of construction techniques, relying especially upon the parties' previous practices under predecessor bargaining agreements . . ..' The court further said (pp. 232--233): ---citing the 'Steelworkers trilogy.' 4
Similarly, in Western Iowa Pork Co. v. National Bhd. Packinghouse & Dairy Wkrs., 366 F.2d 275, 278 (8th Cir. 1966), the court dealt with a clause (like subclause (a)) that the arbitrator 'shall have no power to add to, subtract from, change or modify any provision of this Agreement but he is authorized only to interpret the specific provisions of this Agreement . . ..' The court said (p. 278): ...
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