District 50, United Mine Workers v. Pittston Company

• Citation: 210 F. Supp. 781
• Decision Date: 24 November 1962
• Docket Number: Civ. A. No. 695-F.
• Court: U.S. District Court — Northern District of West Virginia
• Parties: DISTRICT 50, UNITED MINE WORKERS OF AMERICA and Local Union 13071, District 50, United Mine Workers of America, Plaintiffs, v. The PITTSTON COMPANY, a Corporation, doing business as Erwin Supply Company, Defendants.

210 F. Supp. 781

DISTRICT 50, UNITED MINE WORKERS OF AMERICA and Local Union 13071, District 50, United Mine Workers of America, Plaintiffs, v. The PITTSTON COMPANY, a Corporation, doing business as Erwin Supply Company, Defendants.

Civ. A. No. 695-F.

United States District Court N. D. West Virginia, at Fairmont.

November 24, 1962.

Louis Meisel, Fairmont, W. Va., for plaintiffs.

Howard Caplan, Clarksburg, W. Va., for defendants.

HARRY E. WATKINS, Chief Judge.

This court must decide whether, under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, it should require specific performance by this employer of the provisions of the award of an arbitrator in this collective bargaining agreement. Defendant admits that it entered into the contract in question; that the matter was heard and submitted to a duly appointed arbitrator for decision, and that the arbitrator ordered reinstatement of the discharged employee with back pay to date of reinstatement. Defendant claims that the purported grievance did not involve any issue relating to personal prejudice or anti-union activity and was, therefore, not within the scope of the collective bargaining agreement; and that it had the right to discharge the employee, Robilliard, "for good cause, bad cause, or no cause at all."

Articles I and II of the collective bargaining agreement recognize the right of employees to organize and of the Union to be their sole bargaining agent. Article III provides, in part, as follows:

"The rights to hire and discharge are vested exclusively in the Company, and the Union and Local shall not abridge these rights.

"It is not the intention of this provision to encourage the discharge of any employee or the refusal of employment to applicants because of personal prejudice or for lawful activities in matters, affecting the Union or the Local. It is understood that the Company will not give or refuse employment to a person because of his affiliation or non-affiliation with the Union or Local."

Article IX relates to "SETTLEMENT OF DISPUTES, GRIEVANCES, DISCIPLINE," and reads, in part, as follows:

"(2) DISCHARGE CASES: Should any employee who is a member of the bargaining unit be discharged and it be proven that he has been wrongfully discharged, he shall be reinstated and paid for the time lost at this regular rate of pay, but all such cases shall be taken up and disposed of as soon as possible and in any event within five (5) days."

"(5) Settlement of Local and District Disputes: Should differences arise between the Union and the Company as to the meaning and application of the provisions of this agreement, or should differences arise about matters not specifically mentioned in this agreement, or should any local trouble of any kind arise at the plant, an earnest effort shall be made to settle such differences immediately:" (Emphasis supplied.)

The agreement then proceeds to set up grievance procedure. First, the parties or their representatives are to try to settle the dispute. If unsuccessful a Board, consisting of four members, two of whom shall be designated by the Union and two by the Company, is to decide the matter. Here such Board was appointed but failed to agree. Paragraph (5), subparagraph 5 of the agreement provides:

"5. Should the Board fail to agree the matter shall, within thirty (30) days after decision by the Board, be referred to an Umpire to be mutually agreed upon by the Company and by the duly designated representatives of District 50 and the Umpire so agreed upon shall expeditiously and without delay decide said case. The decision of the Umpire shall be final. Expenses and salary incident to the services of an Umpire shall be paid equally by the Company and by District 50."

Pursuant to this provision of the contract, the parties mutually agreed to submit the grievance and dispute to A. J. Bartlett, as Umpire, and the same was submitted to the Umpire for decision on the transcript of the evidence taken before the Board. However, the Company at all times insisted that the dispute was one which did not relate to a Union matter, and was, therefore, not within the scope of the agreement. Briefs were filed by both parties and the Umpire rendered his decision. In his decision, as amended, the Umpire made specific findings of fact. He set forth in his opinion the grievance as follows:

"I, Charles F. Robilliard, was unjustly discharged on August 22, 1961, time 4:00 by Gene Estep. No specific reason was given to me by the management. Therefore, I am asking to be reinstated to my job, Rate of pay and seniority restored and paid for time lost. Charles F. Robilliard"

There was considerable delay in exhausting the grievance procedure of the contract and getting the case submitted to the Umpire. Upon this subject the Umpire stated:

"The Umpire is not in position to say who is at fault in the delay in the processing of this case to the Umpire but indications seem to appear there has been lack of cooperation on the part of both parties."

In his written decision, as amended, the Umpire summarized the facts as follows:

"Charles F. Robilliard, the aggrieved party, has been employed by the Erwin Supply Company, at Shinnston, West Virginia, for a period of over two years. He was employed as warehouseman on the evening shift, which starts at 4:00 o'clock p. m. The Company's business is the selling of mine supplies and hardware. Mr. Robilliard's duties consist of receiving orders from customers, chiefly by telephone, making up orders for distribution by company trucks, handling incoming and outgoing supplies, and general warehouse duties. Mr. Robilliard is 26 years of age, married and has one child.

"It is stated that Mr. Robilliard was having an affair or flirtation with the wife of one of the company's office employees. On the evening of August 21, 1961, he received a telephone call from the wife of the office employee; it appears that the husband listened in on the conversation and became enraged, which resulted in a family quarrel.

"The Company contends that Mr. Robilliard's actions in this affair or flirtation with the wife of a fellow employee were detrimental to its business and reflected on its standing with its customers, and in the community.

"Mr. Robilliard was called in by the Management on the evening of August 22, 1961, and discharged for his actions in this affair or flirtation with a fellow employee's wife."

After reciting many of the details of the alleged flirtation, the Umpire concludes:

"After thorough study of all the facts contained in the testimony in the instant case, it is the opinion of the Umpire that the alleged affair or flirtation between Charles F. Robilliard and the office employee's wife appears from the testimony to be a harmless affair, based upon prevalent rumors and gossip; no obscene or immoral conduct was engaged in by the parties to this affair or flirtation. Mr. Robilliard should be censured and reprimanded for whatever actions he had in carrying on this affair, but sufficient good cause has not been shown in this case to warrant the severe penalty of discharge by the management of the Erwin Supply Company. In my opinion he was wrongfully discharged and I so find.

"Being of such opinion the Umpire makes the following

DECISION

"Charles F. Robilliard was wrongfully discharged by Erwin Supply Company.

"Charles F. Robilliard shall be returned to his work without prejudice. He shall be compensated at his regular rate of pay for all working time lost from August 22, 1961, the date of discharge to the date of reinstatement.

"The compensation allowed in this decision shall be subject to deductions of any monies earned and unemployment compensation payments received by Charles F. Robilliard since the date of his discharge.

"A.J. BARTLETT "Umpire"

The question presented to this Court is whether this dispute is "arbitrable" under the collective bargaining agreement. It is not the function of this Court to review the findings of fact of the Umpire, or even to review the interpretation of the contract by the Umpire. All disputes concerning the "meaning and application" of the contract, as well as "differences * * * about matters not specifically mentioned in this agreement," and "local trouble of any kind" arising at the plant, are required to be settled through the grievance machinery.

To decide whether this dispute is arbitrable, this Court must decide whether this grievance falls within the terms of Article III, the general clause giving the employer the exclusive right to hire and fire, such as to exclude this grievance from the broad arbitration clause of the collective bargaining agreement. The Court answers this question in the negative.

A very similar situation was before the Fourth Circuit Court of Appeals in the recent case of International Association of Machinists v. International Aircraft Services, Inc. (1962), 4 Cir., 302 F.2d 808. There the...