Keystone P. Spec. Co., Inc. v. SCRANTON PP & AU NO. 119

• Decision Date: 09 December 1974
• Docket Number: No. 74-482 Civil.,74-482 Civil.
• Citation: 386 F. Supp. 416
• Parties: KEYSTONE PRINTED SPECIALTIES CO., INC., Petitioner, v. SCRANTON PRINTING PRESSMEN AND ASSISTANTS UNION NO. 119, Respondent.
• Court: U.S. District Court — Middle District of Pennsylvania

386 F. Supp. 416

KEYSTONE PRINTED SPECIALTIES CO., INC., Petitioner, v. SCRANTON PRINTING PRESSMEN AND ASSISTANTS UNION NO. 119, Respondent.

No. 74-482 Civil.

United States District Court, M. D. Pennsylvania.

December 9, 1974.

COPYRIGHT MATERIAL OMITTED

Sheldon Rosenberg, Jacob Nogi, Nogi, O'Malley & Harris, Scranton, Pa., for petitioner.

Ira H. Weinstock, Elliot A. Strokoff, Handler, Gerber & Weinstock, Harrisburg, Pa., for respondent.

SHERIDAN, Chief Judge.

This case was brought under the Labor Management Relations Act of 1947, § 301, 29 U.S.C.A. § 185(a),¹ to vacate an award of a board of arbitration. The action is before the court on the parties' cross-motions for summary judgment. For the reasons given infra, petitioner's motion will be denied; respondent's will be granted, and the arbitrators' award ordered enforced. The parties have also moved for counsel fees to be awarded; these motions will be denied.

In May of 1965, Frank Hayner entered into the employ of the petitioner, Keystone Printed Specialties Company (hereinafter "Company"). In November of 1971, six pressmen, who were members of the respondent, Scranton Printing Pressmen and Assistants' Union No. 119 (hereinafter "Union") were employed by the Company. These pressmen, in the order of their length of service with the Company, were: Walter Mersch, Howard Gilday, William Keib, Hayner, Charles Browning and William Bowen. At that time, Hayner had been the Union Chapel Chairman for two and one-half years.

On the Monday before Thanksgiving 1971, the Company posted a notice informing the pressmen that, effective Thanksgiving Day, the plant would close down and that there would be no work until further notice. The pressmen were to call in the following Monday to see if work was available. Hayner called in that Monday, and periodically through the middle of January, to see if there was work for him. The Company's response was that there was not.² However, during this period all the other pressmen, except Walter Mersch who had retired, resumed work. In addition, two helpers were also recalled in December, and new journeymen were hired by the Company subsequent to the layoff to work in the offset department.

The collective bargaining agreement provides for a six member committee, with an equal number of union and employer members to adjust differences under the contract and to which "shall be referred all questions which arise during the life of this contract, relative to interpretation or alleged violation thereof, which cannot be settled otherwise. . . ." Collective Bargaining Agreement (hereinafter "Contract"), Para. 3 at 15. This committee, in the event of an impasse, is augmented by a seventh member and becomes the Board of Arbitration. "Pending arbitration and decision thereunder, . . . there shall be no strike or lockout, and the award of the arbitrators shall in all cases be final." Id., Para. 8 at 16.

The Union grieved the perpetual layoff and constructive discharge of Hayner, who had seniority over other pressmen who had been recalled to work. Because of the Company's refusal to agree or to arbitrate, the Union filed suit in this court seeking to compel the Company to arbitrate the matter (Civil Action No. 73-83). The suit was dismissed on stipulation of counsel when it appeared that the Company agreed to submit to arbitration.

On January 14, 1974, the first of two arbitration hearings was held. On February 7, 1974, a second hearing took place. The Union position was that the Company's failure to recall Hayner to work was in violation of the seniority protection afforded him by the collective bargaining agreement between the Company and the Union. The Board of Arbitrators found that such a seniority protection did exist and that it warranted the recall of Hayner. Accordingly, on May 28, 1974, the Board of Arbitrators handed down its opinion and award, ordering that Hayner be reinstated with back pay.

The Company refused to honor the arbitration award and on June 7, 1974, filed a "Petition to Vacate Arbitrators' Award" in the Court of Common Pleas of Lackawanna County, Pennsylvania. On June 21, 1974, the action was removed to this court by the Union. In its response to the Company's petition, the Union set forth a denial and a counterclaim for an order enforcing the arbitrators' award and costs of suit, including attorney's fees.

In attacking an award by an arbitrator four issues might theoretically be raised: (1) whether the collective bargaining agreement provides for the arbitration procedure utilized in the case; (2) whether the dispute was arbitrable; (3) whether the arbitrator reached the proper decision under the facts of the dispute; and (4) whether the award rendered was proper.

Here, it is now undisputed that the submission of the grievance to the Board of Arbitration was in accordance with the provisions of the Contract. Scranton Printing Pressmen and Assistants' Union No. 119 v. Keystone Printed Specialties Co., Inc., M.D.Pa.1973, Civil Action No. 73-83; accord, United Steelworkers of America v. American Mfg. Co., 1960, 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (hereinafter "Steelworkers #1").

The arbitrability of Hayner's grievance, however, forms a central issue in the Company's contentions. The Company would have us rule that the Board of Arbitration did not have the power under the Contract to resolve the instant controversy.³ Alternatively, if the Board, under the agreement, did have the abstract power to rule on the matter, the Company urges that the Union, by alleging violations of four specific paragraphs in the agreement, narrowed the controversy to the area of those four paragraphs. If this is accepted, argues the Company, the award should be void for exceeding the Board's limited jurisdiction.

In support of the first of these propositions, the Company points to the paragraph of the Contract setting forth the power of the Board of Arbitration:

"The arbitrators shall be limited to the issues presented to them and shall have no power to add to, detract from, or modify any of the terms of this agreement, nor to establish and change any wage rate unless the same is subject to change in accordance with the agreement, or to decide matters which are properly the subject of collective bargaining." Para. 5, p. 15.

It is the Company's position that the issues here disputed involve "matters which are properly the subject of collective bargaining" and hence are not arbitrable.

The law favors arbitration of labor disputes. Napa Pittsburgh, Inc. v. Automotive Chauffeurs Local 926, 3 Cir. 1974, 502 F.2d 321, 323 (en banc), cert. denied Dec. 10, 1974, ___ U.S. ___, 95 S.Ct. 625, 42 L.Ed.2d 644. Under United Steelworkers of America v. Warrior & Gulf Navigation Co., 1960, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (hereinafter "Steelworkers #2"):

"Apart from matters that the parties specifically exclude, all of the questions on which the parties disagree must therefore come within the scope of the grievance and arbitration provisions of the collective agreement.

The grievance procedure is, in other words, a part of the continuous collective bargaining process. It, rather than a strike, is the terminal point of a disagreement." 363 U.S. at 581, 80 S.Ct. at 1352.

Moreover, the purpose to exclude certain matters from arbitration under bargaining agreement must be clearly spelled out; "doubts should be resolved in favor of coverage." Steelworkers #2, supra, 363 U.S. at 583, 80 S.Ct. at 1353; accord, Gateway Coal Co. v. U.M.W., 1974, 414 U.S. 368, 377, 94 S.Ct. 629, 38 L.Ed.2d 583. An issue must be referred to arbitration unless it may be said with positive assurance that the arbitration clause is not susceptible of a construction that covers the asserted dispute. Steelworkers #2, supra, 363 U.S. at 582, 80 S.Ct. 1347; accord, Super Mkt. Serv. Corp. v. Teamsters Local 29, M.D.Pa.1972, 340 F.Supp. 1143. This is a high, though not unassailable, presumption favoring arbitration. Gateway Coal Co. v. U.M.W., supra; Local 464, Bakery Wkrs. v. Hershey Chocolate Corp., M.D.Pa., 310 F.Supp. 1182, aff'd, 3 Cir. 1970, 433 F.2d 926; see Affiliated Food Distributors, Inc. v. Local 299, Teamsters, 3 Cir. 1973, 483 F.2d 418, cert. denied 1974, 415 U.S. 916, 94 S.Ct. 1412, 39 L.Ed.2d 470.

If the Company's position were to be adopted, it is difficult to conceive of any grievance over which the Board would have jurisdiction. Every claim that might come before it would deal in one way or another with wages, hours or working conditions. "The congressional policy manifest in the Act is to enable the parties to negotiate for any protection either deems appropriate . . .." NLRB v. Burns Security Services, 1972, 406 U.S. 272, 288, 92 S.Ct. 1571, 1582, 32 L.Ed.2d 61 (emphasis added). In fact, any issue not prohibited by the Act may be discussed by the parties. And while there is no duty to discuss a non-mandatory subject, if the parties do come to an agreement with respect to such a subject, it may "properly" be made part of a collective bargaining agreement. NLRB v. Wooster Div. of Borg-Warner Corp., 1958, 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed. 2d 823, Marine & Shipbuilding Wkrs. Union v. NLRB, 3 Cir. 1963, 320 F.2d 615, cert. denied 1964, 375 U.S. 984, 84 S.Ct. 516, 11 L.Ed.2d 472. The parties cannot be regarded as having created a dispute settlement procedure with no capacity for deciding any dispute which might arise. Ludwig Honold Mfg. Co. v. Fletcher, 3 Cir. 1969, 405 F.2d 1123, 1131. See Restatement of Contracts § 236; Williston, Interpretation and Construction of Contracts, Ch. 22, § 619. As the Chairman of the Board of Arbitrators persuasively⁴ wrote:

"The exclusion from the arbitration process of `. . . matters which are properly the subject of collective bargaining,' can only be read to mean that the arbitrators may not make an award that is not based upon an interpretation or application of the collectively bargained agreement." Op.

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