Federal Labor Union 23393, American Federation of Labor v. American Can Co., A--635

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: FRANCIS
• Citation: 100 A.2d 693,28 N.J.Super. 306
• Parties: FEDERAL LABOR UNION 23393, AMERICAN FEDERATION OF LABOR v. AMERICAN CAN CO. . Appellate Division
• Docket Number: No. A--635,A--635
• Decision Date: 13 November 1953

Page 306

28 N.J.Super. 306 100 A.2d 693 FEDERAL LABOR UNION 23393, AMERICAN FEDERATION OF LABOR
v.
AMERICAN CAN CO. No. A--635. Superior Court of New Jersey.
Appellate Division. Argued Oct. 13, 1953.
Decided Nov. 13, 1953.

Page 307

Thomas L. Morrissey, Jersey City, for appellant (Carpenter, Gilmour & Dwyer, Jersey City, attorneys; Milton A. Dauber, Jersey City, on the brief).

Thomas L. Parsonnet, Newark, for respondent (Parsonnet, Weitzman & Oransky, Newark, attorneys).

Before Judges EASTWOOD, JAYNE and FRANCIS.

The opinion of the court delivered by

[100 A.2d 694] FRANCIS, J.A.D.

The trial court determined that the contract between the parties required the submission to arbitration

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of a dispute that has arisen between them. American Can Company appeals, contending that no arbitrable issue exists.

The Can Company, as employer, and the union, as the representative of the company's employees, executed a collective bargaining agreement which was designed to govern wages, hours, working conditions and the like, in the plant.

Among other things, the contract provided:

'Article XIV.--Management. The management of its plants and the direction of the working forces is vested exclusively in the Company, and includes but is not limited to the right to hire, to promote and demote, to transfer; To discipline or discharge For proper cause; and to relieve employees from duty because of lack of work or for other legitimate reasons. The Company, in exercising its rights, shall observe the provisions of this agreement.

'Article XVII.--Grievance Procedure. 17.1. A grievance shall be defined as a difference arising between an employee or the Union and the Company as to the meaning or application of this agreement.'

The succeeding subparagraphs of section 17.2 set forth the machinery for the direct adjustment of grievances by the parties and their representatives. And subparagraph (e) stipulates that:

'In the event that the matter shall not have been satisfactorily settled, then it shall be referred to arbitration.'

It appears from the facts that around the middle of July 1952 Joseph E. Connell, a supervisor of the department known as the End Department, sent for two employees thereof, Daniel Barton and Arthur Hilger, and told them of the company's dissatisfaction with their work and of the necessity for improvement.

At the same time and in accordance with the established practice, Connell made a memorandum of his action. One copy was filed in the employer's personnel records and another was sent to the union. The memorandum which is at the core of the dispute says:

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'This is notice that your work and attitude toward your work has not been satisfactory. Production on the equipment maintained by you has been consistently under par. You have made no effort to improve production on your equipment. If this condition continues to exist, you will be removed from the End Dept.'

The document is entitled 'Official Reprimand'; it contains a dotted line at the bottom, with 'Employee's Signature' under the line. There the notation appears 'Employee refused to sign.' However, it does bear the signatures of Connell and T. L. Glanfield, Personnel Supervisor.

Such notations become part of an employee's work record and at least in some measure influence the future course of conduct of the employer toward him, if there are any further infractions of rules or unsatisfactory performance of work. It is evident also that in the event of subsequent discharge and a union claim of lack of justification therefor, such a dossier would provide substantial assistance in establishing good cause.

A dispute arose between the employer and the union, acting on behalf of Barton and Hilger, as to the significance of the memorandum, and the action it indicated the employer had taken. The union maintained that the employees had been disciplined. The employer contended that they had been reprimanded and warned.

Relying on the contractual provision limiting the right of the employer to discipline to the existence of proper cause therefor, [100 A.2d 695] and denying that any such cause existed, the union claimed that the dispute thus engendered constituted a grievance under Article XVII. Resort to the intraplant measures prescribed by the agreement produced no results and the union demanded arbitration under subparagraph (e). The employer refused, insisting that its action constituted nothing more than reprimand, and as such an absolute and unqualified prerogative of management.

An impasse having been reached, the union applied to the Law Division of this court under N.J.S. 2A:24--1, N.J.S.A. for an order compelling arbitration.

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Judicial hostility to arbitration as an invader of the exclusive jurisdiction of the courts has long since vanished. This is particularly true in labor relations problems where any process is encouraged which tends to settle disputes without resort to the economic war represented by strike or lockout. National Labor Relations Board v. Friedman-Harry Marks Clothing Co., Inc., 301 U.S. 58, 73, 74, 57 S.Ct. 645, 81 L.Ed. 921 (1936); Shirley-Herman Co. v. International Hod Carriers, 182 F.2d 806, 17 A.L.R.2d 609 (C.C.A.2 1950); Lewittes & Sons v. United Furniture Workers of America, 95 F.Supp. 851 (D.C.S.D.N.Y.1951); United Office & Professional Workers of America, C.I.O., v. Monumental Life Ins. Co., 88 F.Supp. 602, 607 (D.C.E.D.Pa.1950). But however much the medium of arbitration is favored in these matters, courts are not at liberty to require submission to it unless the parties have agreed expressly to do so. The Appellate Division, in Machine Printers Beneficial Ass'n of United States v. Merrill Textile Print Works, Inc., 12 N.J.Super. 26, 78 A.2d 834 (1951), said:

'Although settlement of a controversy by arbitration is favored...