George Campbell Painting Corp. v. BROTH. OF PAINTERS

• Decision Date: 05 November 1979
• Docket Number: Civ. A. No. 78-2681.
• Citation: 480 F. Supp. 120
• Parties: GEORGE CAMPBELL PAINTING CORPORATION v. BROTHERHOOD OF PAINTERS & ALLIED TRADES, DISTRICT COUNCIL NO. 21, the Associated Master Painters & Decorators of Philadelphia, Inc., and the Joint Trade Board.
• Court: U.S. District Court — Eastern District of Pennsylvania

480 F. Supp. 120

GEORGE CAMPBELL PAINTING CORPORATION v. BROTHERHOOD OF PAINTERS & ALLIED TRADES, DISTRICT COUNCIL NO. 21, the Associated Master Painters & Decorators of Philadelphia, Inc., and the Joint Trade Board.

Civ. A. No. 78-2681.

United States District Court, E. D. Pennsylvania.

November 5, 1979.

Robert J. Leitzel, Alvin S. Ackerman, Upper Darby, Pa., for plaintiff.

Bruce E. Endy, Philadelphia, Pa., John J. McAleese, Jr., Bala Cynwyd, Pa., for defendant.

OPINION

JOSEPH S. LORD, III, Chief Judge.

By this action under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, the George Campbell Painting Company (Campbell) seeks to compel arbitration of a labor dispute with defendant District Council No. 21 (Union) and to vacate an arbitrator's decision that the merits of their dispute are not arbitrable. The Union has counterclaimed for enforcement of the arbitration award which declared "due and owing" a total of $20,000 in fines assessed against Campbell at an earlier stage in the grievance process. As it does not appear with reasonable certainty that no triable issue of fact exists with respect to the threshold issue of arbitrability, the cross-motions for summary judgment will be denied.

The facts surrounding the underlying dispute are not contested and may be briefly summarized. In 1975, Campbell, a New York corporation, was engaged to paint the Benjamin Franklin Bridge which extends from Philadelphia to Camden, New Jersey. Campbell hired local painters for the job and agreed to be bound by the terms of the Master Agreement negotiated between the Union and the local painting contractors' association, the Associated Master Painters and Decorators of Philadelphia, Inc. As the work progressed Union representatives objected to Campbell's use of spray painting equipment, claiming that the spraying exceeded what the Master Agreement would permit. The Joint Trade Board (JTB), composed of an equal number of representatives from the Union and the local employers' group, upheld the Union's charges and fined Campbell $10,000 on two separate occasions. When Campbell refused to pay, the Union engaged in a work stoppage which Campbell claimed violated the collective bargaining agreement.

Based on an agreement, the intent of which is now keenly disputed, Campbell and the Union decided to submit their differences to a neutral arbitrator. That the parties entered into some kind of agreement beyond the terms of their collective bargaining agreement is apparent from the arbitration clause found in the Master Agreement. That provision, Article 22, provides in relevant part:

ARTICLE 22

Arbitration

Jurisdiction and Procedure: All complaints, disputes, controversies, claims or grievances (hereinafter referred to as a dispute) arising between the parties to this Agreement involving questions of interpretation, application, or breach of any part of this Agreement, or arising out of the contractual relations between the parties and their respective members shall, in the first instance, be referred to a committee or committees appointed for this purpose by the parties hereto. If they are unable to resolve the dispute, it shall be referred to a Joint Trade Board, which Board shall consist of three (3) members appointed by the COUNCIL and three (3) members appointed by the EMPLOYER, the majority decision of which shall be final and binding upon the parties to this Agreement.

* * * * * *

Should the Joint Trade Board be unable to reach a resolution of the dispute and render a decision within forty-eight (48) hours, either of the parties may request the American Arbitration Association to submit a panel of Arbitrators from whom the parties shall select an Impartial Chairman in accordance with the Rules and Regulations of the American Arbitration Association to hear the dispute. The decision of the Impartial Chairman shall be final and binding upon all parties to the proceedings and to this Agreement. (Emphasis added).¹

* * * * * *

On its face, Article 22 does not authorize any submission to an arbitrator if, as in this case, a decision is reached at the intermediate JTB level. Furthermore, the transcript of the arbitration reveals that the simple existence of a side agreement beyond Article 22 was common ground between the parties; what was contested was the substance of the parties' undertakings.

Before the arbitrator the Union insisted that it had agreed to submit to arbitration only the limited question of the procedural validity of the JTB award. If the arbitrator found the JTB procedure adequate, according to the Union, his duty was to uphold the previous awards and not to inquire into the merits of the underlying disputes. Campbell argued, just as vigorously, that the side agreement was to submit the spray and work stoppage disputes for binding arbitration on the merits. After a lengthy set of hearings, the arbitrator accepted the Union view of his authority and went on to approve the JTB fines on procedural grounds.²

The threshold and practically dispositive question in this case is what the parties agreed to arbitrate. If the arbitrator's narrow view of his authority was correct, then his decision on the merits—the procedural endorsement of the JTB awards—is not subject to serious judicial review. United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960), United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Co., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), (the Steelworkers Trilogy); Ludwig Honold Manufacturing Co. v. Fletcher, 405 F.2d 1123 (3d Cir. 1969). If, however, the arbitrator erred in rejecting Campbell's more generous construction of his authority, then the plaintiff is entitled to enforcement of its agreement to arbitrate the merits of the dispute. In that event, this case is not significantly different from the more common pre-arbitration § 301 action to compel a reluctant party to submit to arbitration.

Because an arbitrator's threshold determination of "jurisdiction" ordinarily requires interpretation of the collective bargaining agreement, it might be thought that courts are bound to give the same respect to an arbitrator's reading of the arbitration clause as to his reading of substantive contract provisions. In this case, indeed, both parties seem to assume that the arbitrator's framing of the issues is due the same deference as is his decision on the merits. Yet, the two determinations stand on radically different footings before this court. The Supreme Court has held repeatedly that the issue of arbitrability—as distinct from the merits of an arbitrable dispute—is for the court to determine. International Union of Operating Engineers v. Flair Builders, Inc., 406 U.S. 487, 491, 92 S.Ct. 1710, 32 L.Ed.2d 248 (1972); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-47, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Humphrey v. Moore, 375 U.S. 335, 345 n. 8, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964); Drake Bakeries, Inc. v. Local 50, American Bakery & Confectionery Workers, 370 U.S. 254, 256, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). See International Brotherhood of Teamsters v. Western Pennsylvania Motor Carriers Association, 574 F.2d 783, 787 (3d Cir. 1978), cert. denied, 439 U.S. 828, 99 S.Ct. 102, 58 L.Ed.2d 122 (1978); Local 719, American Bakery & Confectionery Workers v. National Biscuit Co., 378 F.2d 918, 921 (3d Cir. 1967).

Arbitrability comprehends not only whether the parties agreed to arbitrate but also the scope of the promise to arbitrate —the issues for submission. See Flair Builders, supra, 406 U.S. at 491, 92 S.Ct. 1710. "Under our decisions, whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties." Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 1320, 8 L.Ed.2d 462 (1962)....