Livingston v. John Wiley & Sons, Inc.

• Decision Date: 29 March 1962
• Citation: 203 F. Supp. 171
• Parties: In the Matter of David LIVINGSTON, as President of District 65, Retail, Wholesale & Department Store Union, AFL-CIO, Plaintiff, v. JOHN WILEY & SONS, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

203 F. Supp. 171

In the Matter of David LIVINGSTON, as President of District 65, Retail, Wholesale & Department Store Union, AFL-CIO, Plaintiff, v. JOHN WILEY & SONS, INC., Defendant.

United States District Court S. D. New York.

March 29, 1962.

Weisman, Allan, Spett & Sheinberg, New York City, Irving Rozen, New York City, of counsel, for plaintiff.

Paskus, Gordon & Hyman, New York City, Charles H. Lieb, Robert H. Bloom, New York City, of counsel, for defendant.

SUGARMAN, District Judge.

On February 1, 1960 Interscience Publishers, Inc., a New York corporation (herein Interscience or Employer), entered into a contract with District 65, Retail, Wholesale & Department Store Union, AFL-CIO (herein the Union), wherein Interscience recognized the Union as exclusive bargaining agent of the clerical and shipping employees of Interscience. The contract was for a term ending January 31, 1962 and provided for its automatic renewal unless notification by either party 60 days before an expiration date that changes in the agreement were desired.

On April 8, 1960 Interscience and the Union amended the contract to provide that the collective bargaining unit would not be reduced by lay-off below 26 employees. On March 6, 1961 Interscience and the Union amended the contract with respect to the check-off provisions thereof.

Article XVI of the agreement of February 1, 1960 deals with "Grievances: Adjustment of Disputes: Arbitration". Section 16.0 provides that differences, grievances or disputes between Interscience and the Union arising out of or relating to the agreement, its interpretation, application or enforcement "shall be subject to the following procedures, which shall be resorted to as the sole means of obtaining adjustment of the difference, grievance, or dispute". Section 16.0 then sets up three steps as to the "procedures".

The first step provides that when the grievance first arises it "shall be the subject of a conference between the affected employee, a Union Steward and the Employer, officer or exempt supervisory person in charge of his department". If the grievance is not satisfactorily settled within two working days after the conference, it is to be reduced to writing and "signed by the Employer representative and the affected employee".

The second step provides that within five working days after its reduction to writing the grievance should be the subject of a conference between an officer of the Employer or its representative and the Union Shop Committee or its representative.

The third step provides that in the event that the grievance is not resolved in step two it "shall be referred and submitted to arbitration before an impartial arbitrator who shall be chosen by the mutual consent in writing by the Employer and the Union".

Section 16.1 provides for the method of selecting an impartial arbitrator if the parties fail to agree upon an arbitrator pursuant to step three of Section 16.0. The remaining sections of Article XVI deal with how the parties shall conduct themselves while the arbitration is pending.

On August 11, 1961 Interscience entered into an agreement with John Wiley & Sons, Inc. which resulted in the consolidation on October 2, 1961 of John Wiley & Sons, Inc. and Interscience into the defendant consolidated corporation John Wiley & Sons, Inc. (herein Wiley and the Company). No one contends that the consolidation was intended to enable Interscience to run away from its agreement with the Union or that the consolidation of Interscience and John Wiley & Sons, Inc. into Wiley was for anything other than bona fide business reasons.

Both before and after the consolidation on October 2, 1961, the Union contended that Wiley was bound to recognize it as the exclusive bargaining agent of the clerical and shipping employees of Interscience who had been merged into the Wiley organization. Upon the continued refusal of Wiley to accede to the demands of the Union, the latter filed a complaint in this court on January 23, 1962, demanding judgment "directing that the defendant Wiley be compelled to submit to arbitration on the questions herein referred to, and directing said defendant to proceed with said arbitration to final award, together with costs and disbursements of this action". The complaint predicates jurisdiction of the cause upon "Section 301 of the Labor-Management Relations Act, * * * 29 U.S.C. Sec. 185 and the United States Arbitration Act, Title 9, U.S.C.".

The Union by order to show cause returnable January 30, 1962 and adjourned to and argued on March 6, 1962, seeks an order directing Wiley to "submit to arbitration with the said Union on the following issues:—

"(a) Whether the seniority rights built up by the Interscience employees must be accorded to said employees now and after January 30, 1962;

"(b) Whether, as part of the wage structure of the employees, the Company is under an obligation to continue to make contributions to District 65 Security Plan and District 65 Security Plan Pension Fund now and after January 30, 1962;

"(c) Whether the job security and grievance provisions of the contract between the parties shall continue in full force and effect;

"(d) Whether the Company must obligate itself to continue liable now and after January 30, 1962 as to severance pay under

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