HK Porter Co. v. United Saw, File & Steel Prod. Wkrs.

• Decision Date: 19 June 1964
• Docket Number: No. 14509.,14509.
• Citation: 333 F.2d 596
• Parties: H. K. PORTER COMPANY, INC., Appellant, v. UNITED SAW, FILE AND STEEL PRODUCTS WORKERS OF AMERICA, FEDERAL LABOR UNION NO. 22254, AFL-CIO.
• Court: U.S. Court of Appeals — Third Circuit

333 F.2d 596 (1964)

H. K. PORTER COMPANY, INC., Appellant, v. UNITED SAW, FILE AND STEEL PRODUCTS WORKERS OF AMERICA, FEDERAL LABOR UNION NO. 22254, AFL-CIO.

No. 14509.

United States Court of Appeals Third Circuit.

Argued January 21, 1964.

Decided June 19, 1964.

Philip H. Strubing, Philadelphia, Pa. (Edward W. Madeira, Jr., Alfred W. Cortese, Jr., Philadelphia, Pa., on the brief), for appellant.

Louis H. Wilderman, Philadelphia, Pa. (Richard H. Markowitz, Wilderman, Markowitz & Kirschner, Philadelphia, Pa., on the brief), for appellee.

Before BIGGS, Chief Judge, and FORMAN and GANEY, Circuit Judges.

FORMAN, Circuit Judge.

H. K. Porter Company (hereafter the Company) acquired in November of 1955 substantially all the assets of Henry Disston & Sons, Inc. (hereafter Disston), who for many years maintained a steel production plant in the Tacony section of Philadelphia. The Company continued to operate this plant there until February of 1959 calling it the Henry Disston Division of the H. K. Porter Company. It then announced that it intended to move a large part of its production facilities from Philadelphia to Danville, Virginia.

Thereafter, United Saw, File and Steel Products Workers of America, Federal Labor Union No. 22254, ALF-CIO (hereafter the Union) and the Company, discussed, among other things, severance pay and pension rights of the employees. They, however, failed to agree thereon.

The Union brought an action in the United States District Court for the Eastern District of Pennsylvania¹ to compel the Company to proceed to arbitration under its collective bargaining agreement of September 15, 1957 as extended on September 15, 1958. The District Court held that the disputes concerning severance pay and pension rights of the employees were arbitrable.²

After hearing the dispute, the Arbitrator,³ on August 17, 1962, among other things, ruled:

"1. Each employee who, at the time he was terminated, had completed twenty-five years of service or more, but had not reached age sixty-five shall be paid full pension.

"The formula for payment to be worked out by H. K. Porter Company and the Union.

"Each terminated employee shall receive a $1,000 non-contributory life insurance policy as provided for in Section XIX-A.

"2. Each employee who, at the time he was terminated had reached age sixty-five, but had not completed twenty-five years of service shall be paid a pro rata pension based on an equitable formula to be worked out by H. K. Porter Company and the Union.

"Each terminated employee shall receive a $1,000 non-contributory life insurance policy as provided for in Section XIX-A.

"3. The request for pensions for employees who, at their termination, had not reached age sixty-five and who had not put in twenty-five years of service is denied."

The Company filed an action in the District Court attacking the award. The litigation was brought to a head by motions for summary judgment filed by both the Company and the Union. For its part the Company sought to have the award vacated on the grounds that the Arbitrator had "exceeded his authority and the scope of the submission" and that he had "added to, amended and completely disregarded the explicit and unambiguous provisions of the Agreement." The Union, on the other hand, sought, among other things, an order that the Company perform the obligations set forth in the award of the Arbitrator.

The District Court denied the motion of the Company and granted the motion of the Union, ordering enforcement of the arbitration award,⁴ from which the Company has appealed on the same grounds it asserted in attacking the award.⁵

In their collective bargaining agreements of September 1, 1950, February 4, 1952 and July 15, 1953, Disston and the Union treated the subject of pensions in part as follows:

"C. ELIGIBILITY. Basic yearly pension allowance (without Social Security) which shall be paid a retired employe (sic) who has reached the age of sixty-five with at least twenty-five years of continuous service with the Company, * * *"

Provision was also made for retirement at age sixty with at least thirty years of continuous service.

After the acquisition of the Disston plant by the Company, it entered into a Memorandum of Agreement with the Union, dated September 19, 1956, as of September 1, 1956, containing, among other things, the following provisions:

"I A joint Union-Management Committee will be established to write a finalized Agreement to be entered into between the Union and the Henry Disston Division of H. K. Porter Company, Inc. of Pittsburgh, and shall use for such purpose the Agreement between the Union and Henry Disston & Sons, Inc. Included in the rewrite shall be the following:"

* * * * *

"G) Pensions:

"The Company will continue the pension plan negotiated between the Union and Henry Disston and Sons, Inc., except for the following changes:

"1) Elimination of the provision of eligibility for pension at age 60 with 30 or more years of continuous service."

Approximately a year later, on September 16, 1957, the Company entered into a collective bargaining agreement with the Union containing the following provisions:

"Section XX — PENSIONS.

"The Company agrees to continue pensions payments as negotiated September 1, 1950, February 4, 1952 and July 15, 1953 with its predecessor Henry Disston & Sons, Inc. The Company will also provide for all employes (sic) covered by this Agreement the following Pension Plan:

"A. The administration of this Pension Plan shall be in the charge of the Management General Pension Board, Henry Disston Division, H. K. Porter Company (Delaware) Hourly Employes (sic) Pension Plan.

"B. UNION MANAGEMENT PENSION COMMITTEE. A pension committee consisting of three members from Management and three members from active Union membership shall review eligibility problems * * * Problems of eligibility within the terms of this pension plan that cannot be solved by this Pension Committee shall be the only pension problems subject to arbitration, * * *

"C. ELIGIBILITY. Basic yearly pension allowance (without Social Security) which shall be paid a retired employe (sic) who has reached the age of sixty-five with at least twenty-five years of continuous service with the Company, shall depend upon two conditions:

"1. The number of years of continuous service the employe (sic) has with the Company. The length of continuous service of an employe (sic) shall be computed from the date on which he or she first began work. * * *"

* * * * * *

"2. The amount of the employe\'s (sic) average regular yearly earnings, * * *"

Pensioned employees were also entitled to life insurance policies under the Agreement on the following basis:

"Section XIX — LIFE INSURANCE.

"A. The Company will provide to all employees covered by this Agreement, including the Union President and Union Secretary, effective on the day after completing one month of continuous service with the Company, a $2500. non-contributory Life Insurance policy until retirement date; and on the First of the month following the employe\'s (sic) pensioned retirement, a $1000, non-contributory Life Insurance Policy while on pensioned retirement. * * *

Other provisions of the Agreement related to arbitration in part as follows:

"Section III — ADJUSTMENT OF GRIEVANCES

"A. Should differences arise between the Company and the Union or any of its members as to the meaning and application of the provisions of this Agreement or should any grievance arise between the parties hereto, there shall be no stoppage of work, strike or lockout on account of such differences, but an earnest and sincere effort shall be made by the parties hereto to settle such differences in the following manner:"

* * * * * *

"Section IV — IMPARTIAL CHAIRMAN

"A. The Impartial Chairman shall be chosen by mutual agreement between the Union and the Company. * * *

"B. The use of arbitration is confined to grievances of individuals or groups and neither the Company nor the Union agree to submit to arbitration either broad labor policies or plant-wide wage adjustments.

"C. The Impartial Chairman shall have the authority to make final decision in such cases where the Union and the Company cannot agree."

The Arbitrator ruled that he was without power to grant allowance of severance pay, absent any authority thereon in the collective bargaining agreement. To do so, he reasoned, would be to make an unauthorized addition to the agreement in violation of Section XX-B. He therefore rejected the Union's request for severance pay.

The Arbitrator, however, differentiated his interpretation of the pension clause of the agreement from severance pay on the ground that there were patterns of past practice with regard to pensions, not present in the instance of severance pay. He believed that these practices, although carried out not by the Company but by Disston, demonstrated that the Pension Board had abided by the spirit of Section XX rather than by its exact wording. Consequently, the Arbitrator held that this justified a broader interpretation than a mere literal reading of the eligibility clause which called for sixty-five years of age and twenty-five years of continuous service before the granting of a pension.

After analyzing the evidence submitted to him, the Arbitrator in fact found twenty cases between 1950 and 1955, wherein there was deviation from a strict interpretation of the eligibility requirement. In his opinion he stated:

"* * * In numerous instances where an employee had less than 25 years of continuous service a pension was granted because `special consideration was given because of the long period of total employment.\' Instances were cited of pensions being granted where the workers (Snyder and Bamford) had not met the age requirement but had long total service (44 years and 41 years). The Personnel Director, Mr. Norton testified that breaks in service caused by the 1930 depression were generally not construed as breaks. In several

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