Decision Date15 May 1963
Docket NumberCiv. No. 9092.
Citation221 F. Supp. 6
CourtU.S. District Court — District of Connecticut

Bertram Diamond, Stamford, Conn., for plaintiff.

Raymond W. Beckwith, Norman K. Parsells, Bridgeport, Conn., David L. Benetar, Nordlinger, Riegelman, Benetar & Charney, New York City, for defendant.

BLUMENFELD, District Judge.

This action is brought by the plaintiff union to compel arbitration under its 1955 Settlement Agreement with the defendant of a dispute provoked by the company's decision to hire the Gellatly Construction Company, of Bridgeport, Connecticut, to relocate the manufacturing facilities of General Electric's Automatic Blanket and Fan Department within the area of its plant at Bridgeport. This project involved the purchase and installation of new equipment and machinery, the moving of machinery, and the remodeling and reconstruction of certain buildings.

The plaintiff is an unincorporated labor organization and the defendant is engaged in an industry affecting commerce. Federal jurisdiction is based on § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185.

Local 203, a labor organization, affiliated with the plaintiff was a party to the 1955 Settlement Agreement and was certified as the bargaining representative for the unit covering "All production and maintenance employees of the General Electric Company Construction Materials Department and Appliance and Merchandise Department — plant located at Bridgeport, Connecticut."

The original grievance was lodged by Local 203 at Step Two of the grievance procedure on March 19, 1958 in protest against the company's plan to hire outside contractors with employees in a different union to perform the above described work, much of which was normally performed by employees within the union's bargaining unit. After the grievance had been pursued through Step Three, the final stage of the grievance procedure preliminary to arbitration, and the work had begun with Gellatly using its employees, about 140 maintenance employees who were members of the Local went out on strike. The vote to strike was taken on the night of April 28th, and the strike was begun on April 29, 1958. It ended May 14, 1958 following an N.L.R.B. investigation of the strike pursuant to a company complaint of an unfair labor practice and petition for an injunction instituted in the District Court by the Regional Director. During the strike, the International Union had made written demand upon the company for arbitration pursuant to Article XV of the General Electric-International Union National Agreement, and requested the American Arbitration Association to arrange for it. After the defendant had advised the Association of its position that the "* * * grievance desired to be arbitrated does not, in its opinion, raise an arbitrable issue * * *",1 thus forestalling action by the Association through the effect of Article XV 2(b) of the Agreement, this litigation was begun. The union brought suit in the Superior Court for Fairfield County, Connecticut, on June 30, 1958, to compel the company to arbitrate. Following a decision of the Supreme Court of Connecticut, International Union of Electrical, Radio & Machine Workers, A.F.L.-C.I.O. v. General Electric Co., 148 Conn. 693, 174 A.2d 298 (1961), reversing and remanding the case to the Superior Court which had held that the union's amended application (complaint) failed to state a cause of action, the defendant removed the matter to this court, where the plaintiff's motion to remand was denied by Judge Timbers.

Since this is a case in which original jurisdiction could have been founded in this court, the parties have agreed that no appeal will be taken upon the ground of any jurisdictional defect based upon the removal. Also, sufficient facts have been agreed upon between the parties by stipulation and at pre-trial conferences to permit disposition of the case on their cross motions for summary judgment.

The employer defends on three grounds:

(1) That contracting out does not constitute an arbitrable dispute under the collective bargaining agreement.
(2) That the merits have already been decided adversely to the union by the N.L.R.B.
(3) That, having elected to strike, the union is now estopped from seeking arbitration.

Article XV of the Agreement provides that:

"Any grievance which remains unsettled after having been fully processed pursuant to the provisions of Article XIII, Grievance Procedure and which involves either, (a) the interpretation or application of a provision of this Agreement, * * shall be submitted to arbitration. * * *"

In several cases recently decided by the Supreme Court and our own Court of Appeals, the special rules for the interpretation of arbitration provisions in collective bargaining agreements have been clearly defined. Since this is not the first case in which the scope of the arbitration provisions in the 1955 Agreement has been considered, the task of applying these rules to this case has been substantially lightened. The case of Carey v. General Electric Co., 213 F.Supp. 276 (S.D.N.Y.1962) aff'd as to questions material here, 2 Cir., 315 F.2d 499, determined the scope of the very same provisions in the contract which are at issue here. Reference to Judge Palmieri's excellent and thorough analysis of the applicable Supreme Court cases, Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 575, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); and United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), followed by Judge Kaufman's penetrating review and scholarly exposition of the rationale of the cases in this area of law, serve to eliminate all doubt as to whether the subject matter of this dispute is arbitrable.

One of the grievances in Carey, supra, (labeled National Docket Nos. 4606-4611 consolidated as a single grievance), involved assignment of work normally performed by maintenance plumbers, employees within the union's bargaining unit, to employees in a different unit represented by a different union. This grievance was held to be arbitrable despite the defendant's contention that it was not within the arbitration clause. Whether described as "assignment of work to a different union" or as "contracting out", discernment yields no basis for distinguishing the nature of the grievance in these two cases. Carey v. General Electric Co., supra, 213 F.Supp. pp. 292-293. Square support for a determination that a contracting out dispute is arbitrable is also found in the first of the now famous steelworkers trilogy, United Steelworkers of America v. Warrior & Gulf Nav. Co., supra, 363 U.S. p. 585, 80 S.Ct. p. 1354, where the Supreme Court held:

"The grievance alleged that the contracting out was a violation of the collective bargaining agreement. There was, therefore, a dispute `as to the meaning and application of the provisions of this Agreement' which the parties had agreed would be determined by arbitration.
"The judiciary sits in these cases to bring into operation an arbitral process which substitutes a regime of peaceful settlement for the older regime of industrial conflict. Whether contracting out in the present case violated the agreement is the question. It is a question for the arbiter, not for the courts." (Emphasis added)

Although the attempt to distinguish "meaning and application of the provisions", in Warrior, from "interpretation or application of any provision", in this Agreement, could be brushed aside on its face, it may be said to have been accorded the courtesy of a judicial rejection by Proctor & Gamble Ind. Union of Port Ivory, N. Y. v. Proctor & Gamble Mfg. Co., 298 F.2d 644 (2 Cir.1962), where Judge Bartels' order (195 F.Supp. 134, E.D.N.Y.1961) to compel arbitration of a grievance described as "* * * contracting out work normally performed by the Union's bargaining unit * * *" was upheld on the basis of an arbitration clause worded like the one here. Following the teaching of Warrior, the opinion of the Court of Appeals by Judge Medina pointed out in Proctor & Gamble Ind. Union of Port Ivory, N. Y. v. Proctor & Gamble Mfg. Co., supra, 298 F.2d pp. 645-646:

"The nub of the matter is that under the broad and comprehensive standard labor arbitration clause every grievance is arbitrable, unless the provisions of the collective bargaining agreement concerning grievances and arbitration contain some clear and unambiguous clause of exclusion, or there is some other term of the agreement that indicates beyond peradventure of doubt that a grievance concerning a particular matter is not intended to be covered by the grievance and arbitration procedure set out in the agreement."

There is no doubt that the arbitration provisions of Article XV are broad enough to apply to the plaintiff's grievance in this case.

Bargaining History

Apparently, on the theory that in Carey the Court did not have the bargaining history before it in interpreting the arbitration provision in the 1955 Agreement, the company now stresses the argument that the so-called "wrap up" clause (Article XXVII, Issues of General Application), if interpreted in the light of the collective bargaining history, which it claims would reveal a succession of unsuccessful attempts by the union to secure a prohibition on the company's right to farm out work, removes this dispute from the jurisdiction of the arbiter. The clause pointed to provides:

"This Agreement * * * between the parties is intended to be and shall be in full settlement of all issues which were the subject of collective bargaining

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  • Lodge No. 912 v. General Electric Company
    • United States
    • U.S. District Court — Southern District of Ohio
    • June 5, 1964
    ...F.2d 758 (2d Cir. 1964); Carey v. General Electric Co., 315 F.2d 499 (2d Cir. 1963); International Union of Electrical, Radio & Machine Workers v. General Electric Co., 221 F.Supp. 6 (D.C.Conn.1963); Contra, Westinghouse Salaried Employees Ass'n v. Westinghouse Electric Corp., 217 F. Supp. ......

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