JOINT BOARD OF CLOAK, SKIRT & DRESSMAKERS U. v. Senco, Inc.

• Decision Date: 28 August 1968
• Docket Number: Civ. A. No. 68-45-G.
• Citation: 289 F. Supp. 513
• Parties: JOINT BOARD OF CLOAK, SKIRT AND DRESSMAKERS UNION OF the INTERNATIONAL LADIES' GARMENT WORKERS UNION, AFL-CIO, Plaintiff, v. SENCO, INC., and Maco Clothing Corporation, Defendants.
• Court: U.S. District Court — District of Massachusetts

289 F. Supp. 513

JOINT BOARD OF CLOAK, SKIRT AND DRESSMAKERS UNION OF the INTERNATIONAL LADIES' GARMENT WORKERS UNION, AFL-CIO, Plaintiff, v. SENCO, INC., and Maco Clothing Corporation, Defendants.

Civ. A. No. 68-45-G.

United States District Court D. Massachusetts.

August 28, 1968.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John D. O'Reilly, III, Segal & Flamm, Boston, Mass., Leonard Greenwald, New York City, for plaintiff.

Melvin Pierce, Cornelius J. Moynihan, Jr., Peabody, Brown, Rowley & Storey, Lepie & Coven, Boston, Mass., for defendants.

MEMORANDUM OF DECISION

GARRITY, District Judge.

This action, arising under § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, was brought by plaintiff to obtain enforcement of an arbitration award.¹ It is presently before the court on cross motions for summary judgment filed by all three parties.

The undisputed facts follow. Plaintiff is an unincorporated labor organization composed of various locals of the International Ladies' Garment Workers' Union, AFL-CIO, and represents employees in the ladies' garment industry. Defendants Senco, Inc. (Senco) and Maco Clothing Corporation (Maco) are Massachusetts corporations which are engaged in the manufacture of ladies' garments.²

On January 4, 1965, a collective bargaining agreement was entered into between plaintiff and the Association of Garment Contractors, Inc. (the Association). Senco was at that time a member of the Association and was consequently bound by the agreement. The agreement was effective for the period March 17, 1964 through February 15, 1967.

Under Articles 35 and 36 of the agreement, any unresolved dispute is to be submitted for final decision to an Impartial Chairman. Article 69 provides that subsidiary, auxiliary or affiliated firms or corporations shall be bound by the terms of the agreement. Plaintiff alleges that Maco is such a firm or corporation.

On January 24, 1967, plaintiff submitted to the Impartial Chairman an unresolved complaint that Senco and Maco had violated the agreement in a number of respects and requested damages and other relief. On February 1, 1967 the original of a letter from the General Counsel of plaintiff to the Impartial Chairman demanding arbitration was sent by certified mail to Senco at 104 Meridian Street, East Boston, Massachusetts,³ and was returned by the Post Office marked "refused." On February 2, 1967, two copies of the same letter were served at the premises of Senco upon Irene Rotondi.⁴ On the same date, two copies of the same letter were served at the premises of Maco upon Henry Senese. Upon being served with these papers, Senese threw the letters to the floor of the Maco plant and pushed them with his foot through an open door onto the sidewalk in front of Maco. On February 6, 1967, the original of a letter from the General Counsel of plaintiff to the alternate Impartial Chairman (the arbitrator) was sent by certified mail to Senese and Senco at 104 Meridian Street and was returned by the Post Office marked "refused." On February 10, 1967 the arbitrator informed the following persons by registered letter that an arbitration hearing would be held on February 21, 1967 in the Boston Municipal Courthouse: Mrs. Phyllis Bocchino c/o Mako Clothing⁵ Corporation, Maco, David Lavien (counsel for the Association), Senco and Senese. The letters to Bocchino, Maco and Lavien were all accepted but the letters to Senco and Senese were returned by the Post Office marked "refused."

The hearing on the demand for arbitration was opened by the arbitrator on February 21, 1967. No appearance or request for continuance was filed for Senco or Maco. The arbitrator continued the hearing until March 14, 1967. On February 23, 1967, subpoenas duces tecum were issued by the arbitrator to the following persons to appear at the hearing on March 14, 1967: Bocchino c/o Maco, Maco (through Bocchino), and Senco (through Senese). Service of the former two subpoenas was effected on March 3, 1967; service of the latter subpoena could not be effected. On February 27, 1967 telegrams were sent with notice of the hearing date of March 14, 1967 at the Boston Municipal Court to the following persons: Maco, Bocchino c/o Maco, Senco, and Senese. Registered letters confirming the telegrams and enclosing copies thereof were also sent to each of the above parties. The telegrams and letters to Bocchino and Maco were accepted but those to Senco and Senese were refused. On March 10, 1967 counsel for Bocchino and Maco wrote to the arbitrator that neither of his clients would attend the March 14th hearing because, among other things, they were not bound by the agreement.

A hearing was held on March 14, 1967, at which neither Senco nor Maco was present. On October 27, 1967 the arbitrator issued his opinion and award. Among other things, he found pursuant to Article 69 of the agreement that Maco was a subsidiary of Senco. Senco and Maco have failed to comply with the terms of the arbitrator's opinion and award.

In this opinion, the court will treat separately the obligations of the two defendants under the arbitrator's opinion and award. Part I will deal with Senco.

A. Notice

As a preliminary argument, Senco contends that the award of the arbitrator is null and void because it is based on an arbitration hearing of which it did not receive proper notice. Specifically, it is argued that according to the dissenting opinions⁶ in Hanner v. DeMarcus, 1968, 390 U.S. 736, 88 S.Ct. 1437, 20 L.Ed.2d 270, due process requires actual notice wherever possible. Senco overlooks the basic fact that the due process clause of the Fourteenth Amendment applies only to state action. In Hanner, the issue before the Court was whether a state rule of civil procedure required actual notice of execution. Even if the views of the dissenters were the law, they would not be applicable in the present case which involves the determination of the form of notice provided for in an agreement between private parties.

The question is whether the notice of the hearing provided to Senco is proper under the provisions of the agreement. But prior even to this determination is the issue whether the court or the arbitrator is to decide whether the contractual requirements have been complied with. Ordinarily, the question of arbitrability (i. e., those issues which the agreement empowers the arbitrator to decide) is one for the courts to determine on the basis of the contract entered into by the parties, Atkinson v. Sinclair Refining Co., 1962, 370 U.S. 238, 241, 82 S.Ct. 1318, 8 L.Ed. 2d 462, i. e., the power of the arbitrator is ordinarily circumscribed by the terms of the cohective bargaining agreement as interpreted by the courts. However, the parties to an agreement may agree that the arbitrator may himself determine arbitrability. Teamsters Local Unions, etc. v. Braswell Motor Freight Lines, 5 Cir., 1968, 392 F.2d 1, 6 n. 6; Metal Products Workers Union, Local 1645, U.A.W.-A.F.L.-C.I.O. v. Torrington Co., 2 Cir., 1966, 358 F.2d 103, 105. In such cases, the arbitrator is in effect empowered to decide what the agreement empowers him to decide.⁷

The authority to determine what is arbitrable has been granted to the arbitrator in the present case by virtue of Article 35(E) of the agreement:

He (the arbitrator) shall have power to determine his jurisdiction, all questions of arbitrability and to grant all appropriate remedies.

Although the arbitrator has not specifically decided that the question of what constitutes proper notice is arbitrable, he recounts his various attempts to notify Senco of the hearing and concludes that "all parties were given full opportunity to appear and present evidence." His discussion and conclusion on the question indicate a preliminary conclusion that it is arbitrable.

Even in the absence of a provision empowering the arbitrator to determine the issue of arbitrability, it has been decided that procedural questions growing out of a dispute that is otherwise subject to arbitration are to be decided by the arbitrator. Livingston v. John Wiley & Sons, 1964, 376 U.S. 543, 557, 84 S.Ct. 909, 11 L.Ed.2d 898. In Wiley, the Court in effect adopted a per se rule of arbitrability with respect to such procedural questions. See, Note, Procedural Arbitrability Under Section 301 of the LMRA, 73 Yale L.J. 1459 (1964). In Luckenbach Overseas Corp. v. Curran, S.D.N.Y., 1968, 57 CCH Lab.Cas. ¶ 12, 636, the court, relying upon Wiley, specifically decided that the question of what constitutes proper notice is to be decided by the arbitrator.

In view of the Wiley and Luckenbach decisions, the presumption of arbitrability articulated in United Steelworkers of America v. Warrior & Gulf Navigation Co., 1960, 363 U.S. 574, 582-583, 80 S.Ct. 1347, 4 L.Ed. 1409,⁸ and the authority of the arbitrator to determine arbitrability, the court will not overturn the arbitrator's tacit conclusion that the issue of proper notice was arbitrable. With respect to the arbitrator's decision that the notice conformed to the requirements of the agreement, the court's scope of review is quite narrow at best. In reaching his decision on an arbitrable matter, "an arbitrator is confined to interpretation and application of the collective bargaining agreement." United Steelworkers of America v. Enterprise Wheel & Car Corp., 1960, 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424. Accordingly, his decision can be set aside only if it is clear that it is not based upon the agreement. Safeway Stores v. American Bakery & Con. W.I.U., Local 111, supra 390 F.2d at 82.

Although there is no specific provision in the agreement as to the form of notice of hearing, Article 37 indicates what the parties accepted to be proper notice of demand for arbitration. That article limits the right of plaintiff to strike to certain circumstances one of which is as follows:

Where the Employer refuses to go to Arbitration within 24 hours after a

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