LOCAL UNION NO. 1055, ETC. v. Gulf Power Company

• Decision Date: 14 August 1959
• Docket Number: Civ. A. No. 1016.
• Parties: LOCAL UNION NO. 1055, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, and Local Union No. 624, International Brotherhood of Electrical Workers, AFL-CIO, Plaintiffs, v. GULF POWER COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Florida

175 F. Supp. 315

LOCAL UNION NO. 1055, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, and Local Union No. 624, International Brotherhood of Electrical Workers, AFL-CIO, Plaintiffs, v. GULF POWER COMPANY, Defendant.

Civ. A. No. 1016.

United States District Court N. D. Florida, Pensacola Division.

August 14, 1959.

Louis Sherman, Washington, D. C., Philip D. Beall, Pensacola, Fla., Poole, Pearce & Hall, Atlanta, Ga., for plaintiffs.

Bert Lane, Yonge, Beggs & Lane, Pensacola, Fla., for defendant.

CARSWELL, Chief Judge.

This suit was initiated under 29 U.S. C.A. § 185 for a declaration of contractual rights by the plaintiffs, hereinafter called the Union, against the defendant, a public utility, hereinafter called the Company. Assuming a determination in its favor, the Union seeks a mandatory injunction to compel compliance therewith, or in the alternative an injunction requiring the Company to submit any grievances arising out of those contract rights to arbitration. There are two breaches of the contract alleged, from which the Union asks declaration and specific performance: (1) the Company refuses to negotiate with the Union as the collective bargaining representative of certain "foremen" and to afford such "foremen" any rights under the collective bargaining contract, as is alleged, the Company agreed to do under the contract, and (2) certain "supervisory" personnel are being required by the Company to work contrary to the contract.

The factual backdrop surrounding this dispute appears as follows: The Union and Company entered into the present collective bargaining contract on October 27, 1953. That instrument, while silent as to recognition of "foremen" per se, nevertheless included "foremen" along with other employees in the wage scale agreement which was appended to the contract. The contract was to remain in effect for five years unaltered and thereafter would run from year to year for the purpose of termination, but, absent termination, the agreement was binding on the parties until notice of alteration was timely given and agreed to by both Union and Company. In June, 1958, just prior to the five year anniversary date of the covenant, the Company gave notice to the Union that it would no longer recognize the Union as the collective bargaining agent for "foremen", since they were supervisory personnel. The Union did not agree to this action, whether it be denominated a proposed alteration or termination of the contract. Demand was subsequently made by the Union to submit this question to arbitration, since it took the position that the Company had voluntarily agreed under the contract to recognize it as the bargaining agent for the "foremen" as well as employee personnel, and, further, having agreed to submit all grievances arising from the contract to arbitration that the Company had a duty to live up to the contract, or at least abide by it until changed by arbitration agreements. This the Company refused, with the contention that since it could not be compelled under the law (29 U.S. C.A. § 164(a)) to recognize individuals defined as supervisors under such law for the purpose of collective bargaining, then such contractual provisions had been effectively terminated by its notice or that such provisions were unenforceable against it.

The Company assigns some seventeen grounds by motions to dismiss for failure to state a claim or, in the alternative, to strike. The legal questions with merit thus raised are grouped and will be discussed separately.

Jurisdiction

When it appeared on the pleadings that unfair labor practices were prospectively lurking in the identical contract violations alleged, the Court examined jurisdiction. The existence of such is no bar to the jurisdiction of this Court for grievances arising under a collective bargaining contract when arbitrable are unequivocally enforceable through specific performance in the United States District Courts (24 A.L.R. 2d 752). Such private arbitration in the labor management field is to be afforded broad liberalities. Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L. Ed.2d 972, and Lodge No. 12, District No. 37, International Association of Machinists v. Cameron Iron Works, Inc., 5 Cir., 257 F.2d 467, 474. While an act may be both an arbitrable contract violation and an unfair labor practice, the former is nevertheless enforceable in the courts, for parties may agree in the collective bargaining agreement to submit matters involving unfair labor practice to private arbitrators, and the District Court should retain jurisdiction over the contract violation until the National Labor Relations Board in the exercise of its discretion elects to effectuate the statutory policy of the National Labor Relations Act. Lodge No. 12, District No. 37, International Association of Machinists v. Cameron Iron Works, Inc., 5 Cir., 257 F.2d 467, certiorari denied 358 U.S. 880, 79 S.Ct. 120, 3 L.Ed.2d 110.

Was the Contract Terminated?

As a bar to the arbitration of this alleged breach of contract, the Company contends the collective bargaining agreement was a divisible one under which provisions relative to recognition of the foremen were terminated. Labor contracts may contain severable portions which are unenforceable (14 A.L.R.2d 846). It is elementary that a contract is terminable in the manner agreed to (17 C.J.S. Contracts § 385). Usually a partial termination is not favored unless the parties have expressly agreed for such provisions. 17 C.J.S. Contracts § 403; Oil Workers International Union, Local No. 463, v. Texoma Natural Gas Company, 5 Cir., 146 F.2d 62, certiorari denied 324 U.S. 872, 65 S.Ct. 1017, 89 L. Ed. 1426.

The contract states that it is terminable after its fifth year of operation by giving notice "* * * at least sixty (60) days prior to August 15 of the year in which termination * * *" is "* * * desired * * *". It is silent as to partial termination. The first purported notice of termination was seasonably given on June 14, 1958, and it provided:

"Since Foremen are supervisory employees and the Company is not required to bargain with any Union for supervisory employees, we advise you that effective August 15, 1958, the anniversary date of our Agreement, the classification of Foremen will no longer be included in coverage under our Agreement and the Company will no longer recognize the Union as bargaining agent for these supervisory employees."

Thereafter, on August 15, 1958, the Company again gave identical notice extending the projected date for termination to November 15, 1958. And again on November 17, 1958, identical notice was given extending the operative date for termination to January 1, 1959.

The question of termination then is resolved by a construction of the Company's letters. If they were a partial termination, it was a nullity for partial termination was not agreed to. It was not a complete termination, because no indication was given to cease recognition of the Union altogether, and, indeed, the Company has recognized the Union as the representative of the employees to date.

Is the Contract Void as Being One for An Indefinite Duration?

The contract was plainly terminable from year to year after its fifth anniversary by giving notice "* * * at least sixty (60) days prior to August 15 of the year in which such termination * * *" is "* * * desired * * *". Since the contract in its entirety was terminable, likewise its recognition of foremen vel non was not in perpetuity. Upon cancellation of the entire contract, the unambiguous language of 29 U.S. C.A. § 164(a) would completely insulate the Company from any attempt...