Cole v. UNITED STEELWORKERS OF AMERICA, LOCAL, ETC.

• Decision Date: 09 December 1977
• Docket Number: Civ. No. 77-548 and 77-580.
• Citation: 441 F. Supp. 1346
• Parties: COLE (a Division of Litton Business Systems, Inc.), Plaintiff, v. UNITED STEELWORKERS OF AMERICA, LOCAL NO. 4407, Defendant. UNITED STEELWORKERS OF AMERICA, AFL-CIO, Plaintiff, v. COLE (a Division of Litton Business Systems, Inc.), Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

441 F. Supp. 1346

COLE (a Division of Litton Business Systems, Inc.), Plaintiff, v. UNITED STEELWORKERS OF AMERICA, LOCAL NO. 4407, Defendant.

UNITED STEELWORKERS OF AMERICA, AFL-CIO, Plaintiff, v. COLE (a Division of Litton Business Systems, Inc.), Defendant.

Civ. Nos. 77-548 and 77-580.

United States District Court, M. D. Pennsylvania.

December 9, 1977.

Norman I. White, McNees, Wallace & Nurick, Harrisburg, Pa., for plaintiff in Civ. No. 77-548 and defendant in Civ. No. 77-580.

Mary-Win O'Brien, Pittsburgh, Pa., for defendant in Civ. No. 77-548.

Joseph Lurie, Galfand, Berger, Senesky, Lurie & March, Philadelphia, Pa., A. E. Lawson, Asst. Gen. Counsel, U.S. Steelworkers

of America, Pittsburgh, Pa., for defendant in Civ. No. 77-548 and plaintiff in Civ. No. 77-580.

C. Grainger Bowman, Harrisburg, Pa., for defendant in Civ. No. 77-580.

OPINION

MUIR, District Judge.

Cole, a division of Litton Business Systems, Inc. (Cole) on June 22, 1977 filed the action numbered Civil 77-548 against United Steelworkers of America, Local No. 4407 requesting this Court to overturn a portion of a decision of an arbitrator calculating an incentive standard for automatic presses as being outside the scope of the arbitrator's authority. United Steelworkers of America, AFL-CIO, (United Steelworkers) on July 5, 1977 filed the action numbered Civil 77-580 against Cole asking the Court to enforce that portion of the arbitrator's decision. In a somewhat futile attempt to prod the parties into action, the Court on June 24, 1977 set Civil No. 77-548 for trial on the December, 1977 trial list and on July 6, 1977 set Civil No. 77-580 for trial on the same trial list, with final pre-trials to be held December 1, 1977. On November 17, 1977 the Court granted Cole's motion to consolidate the two actions because they involved common questions of law and fact.

Counsel exhibited unusual lethargy in failing to move for summary judgment. On November 3, 1977, the United Steelworkers filed a motion for summary judgment accompanied by a brief and an affidavit of Ralph C. Dasher, a union rate steward. On November 18, 1977, Cole filed a cross motion for summary judgment accompanied by an affidavit of Thomas L. O'Malley, the director of the Industrial Relations for Cole, and a brief in response to the United Steelworkers' brief and in support of Cole's cross-motion. The motions became ripe for decision on November 26, 1977 and November 27, 1977 respectively, just a few days before the scheduled final pre-trial conference of December 1, 1977 and the start of the December list. The sloth of counsel in waiting until November 3, 1977 and November 18, 1977 to file their motions is inexcusable.

Because there is no factual dispute between the parties, this issue is appropriate for resolution by means of summary judgment. F.R.Civ.P. 56. The facts leading to the filing of the lawsuits are as follows:

Cole, a division of Litton Business Systems, Inc. and United Steelworkers AFL-CIO have entered into a collective bargaining agreement which covers the employees at Cole's plant in York County, Pennsylvania. Article XIV of that Agreement relates to the setting of incentive standards for job operations within the plant. In early October, 1975, pursuant to the Standard Hour Incentive Plan of Article XIV, Cole set incentive standards for several of its automatic presses. The union rate steward, Ralph C. Dasher, filed an operational request change on October 10, 1975 stating his dissatisfaction with the amount of incentive bonus which Cole had provided for the operation of the presses. On November 14, 1975, following Cole's response that it was holding the standards open pending further investigation, Dasher and other press operators filed a grievance requesting that the standards be adjusted upward to yield a fair amount of bonus. The parties were unable to resolve their grievance and it was submitted to final and binding arbitration pursuant to Article V of the Collective Bargaining Agreement. The arbitrator, G. Allen Dash, Jr. issued an opinion on March 28, 1977 sustaining the grievance filed by the Union and awarding them their requested bonus of 37.5%. Cole had contended that the amount of bonus should be limited to 30.5%. However, the arbitrator used a method of calculating the 37.5% bonus which differed from the method which was previously used by the parties in determining such incentive bonuses. Cole contends that the Collective Bargaining Agreement did not authorize the arbitrator to employ a method of calculation other than that which had been used by the company in setting incentive standards and that that portion of his award in favor of the Union should be vacated by this Court. The United Steelworkers request the Court to uphold that portion of the arbitrator's decision.

Article XIV, Section 1 of the Collective Bargaining Agreement between Cole and the United Steelworkers of America effective July 1, 1975 provides for the setting of incentive standards applicable to each job within the plant. Both parties agreed that the Standard Hour Incentive Plan is the one most adaptable to the Plant's operation. Article XIV defines certain terms which are used in the article and states procedures for the company's setting of incentive standards and the Union's appeals therefrom. However, no specific method of calculation is contained in Article XIV.

Arbitrator Dash, in his decision dated March 28, 1977, found for the Union and proceeded to compute the proper incentive for automatic presses Nos. 7036 and 7082 in the following manner: Arbitrator Dash noted that under the agreement, the production standard was defined as the number of pieces that an average operator would be able to produce in one hour of work. An employee's earnings are calculated on the basis of standard hours computed by dividing the actual production of the employee by the production standard set for the particular job. For example, if a machine operated by an average employee customarily produced 1,000 parts in an hour and a particular employee was able to produce 1,500 parts in an hour, he would have earned 1½ standard hours for the actual hour of work. Cole, in setting the production standard for the automatic presses, apparently first calculated a "base minute" which is that fraction of a minute required to produce one part by a given machine. It then followed ¶ (c)(2) of § 1 of Article XIV of the Collective Bargaining Agreement in multiplying that base minute by a levelling factor, which would apparently take into account the relevant degree of difficulty involved in operating the press with other operations in the plant and the relative skills of the press operators and factored in a 16-26% overall allowance which included 5% for inherent delays and relief time, 6% for personal allowances and from 5 to 15% for fatigue. Finally, an incentive factor was added to the base minute. This produced a new value for the base minute which was then translated into the production standard, or the standard production for one hour of work, and the employee's actual production was measured against this standard. However, according to the affidavit of Thomas O'Malley, Cole's director of industrial relations, the arbitrator, while employing the same percentage factors set forth in the collective bargaining agreement, utilized a different method of calculation. The arbitrator first noted that because the presses involved were automatic machines, the operator had no control over the number of parts which were produced at a particular machine setting. Therefore, the arbitrator concluded that it would be inappropriate to apply a levelling factor which might take into account individual differences in operating procedures. Arbitrator Dash determined that automatic press operators should be allowed the minimum percentage time for the factors of inherent delay, personal allowance, and fatigue of 16%. The arbitrator determined that the 16% should be added to the base amount in order to produce a production standard. For example, if a machine produced 51 parts per minute, so that the "base minute" was .0196, the arbitrator took 116% of the base minute to produce a new figure of .0227 representing the "base minute" per piece plus 16% for delay, relief, and fatigue. The arbitrator used this new production standard as the basis for his incentive award. Cole had suggested a 30.5% incentive bonus and the Union submitted that 37.5% was a fairer figure. The arbitrator adopted the Union's position and calculated the incentive standard to be 37.5% of his revised base minute figure, adding it to that figure in order to arrive at the incentive standard. He included in his decision tables representing his calculations for each of the two automatic presses.

Cole submits that the above method of calculation was improper. Apparently, for at least 20 years Cole's practice has been to take each factor, including but not limited to those factors which relate to inherent delay, personal allowance, and fatigue expressed as a percentage, times the base minute in order to obtain absolute numbers which represent that percentage of the base minute. Those numbers are then added directly to the base minute to calculate the incentive standard. The difference between Cole's method of calculation and that used by the arbitrator is that the arbitrator's method added the percentage of the base minute attributable to the factors of delay, personal allowance, and fatigue to the base minute before that number was multiplied by the percentage attributable to the incentive bonus....