Pock v. New York Typographical Union No. 6

• Decision Date: 07 November 1963
• Citation: 223 F. Supp. 181
• Parties: W. J. POCK, as Treasurer of Publishers' Association of New York City (on behalf of its member, Hearst Consolidated Publications, Inc.), Plaintiff, v. NEW YORK TYPOGRAPHICAL UNION NO. 6, Defendant.
• Court: U.S. District Court — Southern District of New York

223 F. Supp. 181

W. J. POCK, as Treasurer of Publishers' Association of New York City (on behalf of its member, Hearst Consolidated Publications, Inc.), Plaintiff, v. NEW YORK TYPOGRAPHICAL UNION NO. 6, Defendant.

United States District Court S. D. New York.

November 7, 1963.

Townley, Updike, Carter & Rodgers, New York City, for plaintiff. James W. Rodgers, Andrew L. Hughes, New York City, of counsel.

John J. Sheehan, New York City, for defendant.

WYATT, District Judge.

This motion is by plaintiff, the representative of an employer, for an order directing defendant Union to arbitrate a "grievance" said to arise under a collective bargaining agreement. The motion is recited to be under Section 301(a) of the Labor Management Relations Act, 1947 (29 U.S.C. § 185(a); part of the "Taft-Hartley Act") and under the United States Arbitration Act (9 U.S.C. § 1 and following).

The action is for the same relief as is asked on this motion. Plaintiff duly filed his complaint herein and shortly thereafter the present motion followed. Defendant joined issue by answer and has filed an affidavit opposing this motion.

The facts do not appear to be in dispute.

Plaintiff is the Treasurer of an unincorporated association of the publishers of the principal newspapers in the City of New York, including the corporation which publishes the "New York Journal-American". (The spelling "Pock" for plaintiff in the complaint and summons prevails over the spelling "Poch" in the motion papers.)

Under New York law, the president or treasurer of an unincorporated association may maintain an action for it (General Associations Law, McKinney's Consol.Laws, c. 29, § 12). Plaintiff evidently relies on this authority, coupled with Fed.R.Civ.P. 17(b); the action is not in the "common name" of the association under Fed.R.Civ.P. 17(b) (1).

Defendant is a labor organization representing those engaged in typographical work in the composing rooms of the newspapers. It is not questioned that such an organization may be sued in this Court as an "entity" since it represents "employees in an industry affecting commerce". 29 U.S.C. § 185(b); Macneish v. N. Y. Typographical Union No. 6, 205 F.Supp. 558 (S.D.N.Y.1962). This was assumed in Publishers' Ass'n. of New York City v. New York Mailers' Union Number Six, 317 F.2d 624 (2d Cir. 1963).

On December 8, 1962—a time when there was no collective bargaining agreement in effect between the parties— the Union called a strike against some of the major newspapers in New York, including the Journal-American. On that date, a representative of the Union ordered "off the floor" the General Foreman (hereafter "Foreman") of the composing room of the Journal-American. There is some difference as to the details of what happened next after the order but the difference is of no significance here; at least, the Foreman did not immediately leave the Journal-American building.

On December 26, 1962, the representative of the Union filed with its President a complaint against the Foreman charging the latter with a violation of Article V, Section 1, of the By-Laws of the International Typographical Union (the parent of the defendant local Union) in that he allegedly "committed a disreputable act and conduct unbecoming a Union man".

On December 31, 1962, the Foreman was notified by the Union President of the complaint and told that it had been referred to the "Discipline Committee" from which he would hear in due course.

All the events above took place when there was no collective bargaining agreement between the parties.

Thereafter, the plaintiff association and defendant Union made a collective bargaining agreement (the "contract"); this contract is effective from March 31, 1963 to March 31, 1965 and its execution ended the strike.

The plaintiff association is for convenience referred to as the "Employer" and the defendant Union as the "Union".

Section 5 of the contract provides, among other things:

"The operation, authority, and control of each composing room shall be vested exclusively in the office through its representative, the general foreman, who shall be a member of the Union." The word "office" undoubtedly means the publisher.

Section 85 of the contract provides that "any controversy * * * arising under this contract * * * shall be submitted for conciliation" and until final settlement the status quo is to be maintained. "If conciliation fails, then the dispute shall be referred to a board" of four members (two from each side) and if these cannot agree on a fifth member, he is to be designated under the rules of the American Arbitration Association.

In essence, there has been an agreement since March 31, 1963 to arbitrate "any controversy * * * arising under this contract".

After the contract had been made and on June 20, 1963, the Foreman was notified by the Union that the complaint against him would be heard by the Discipline Committee on June 26, 1963.

On June 24, 1963, the Employer filed with the Union President a "grievance", stating that the disciplinary proceedings related to the Foreman's "supervisory duties" and were in violation of Section 5 of the contract. The grievance was stated to be filed under Section 85 of the contract and a prompt meeting with the Union was requested.

No reply from the Union being received, the Employer discussed the situation by telephone with the Union President, who refused to end the disciplinary proceedings and at the same time refused to arbitrate the matter. The Union, however, has not announced any decision as to the Foreman.

As stated in its opposing affidavit and in its opposing memorandum of law, the position of the Union is that it did not agree in the contract to arbitrate this grievance because this grievance arose before there was any contract and because the contract effective March 31, 1963 does not cover events prior to that date.

In this action then commenced the Arbitration Act must be put to one side and disregarded. There is no diversity of citizenship here and the United States Arbitration Act can only be invoked if there is some independent ground of federal jurisdiction. Krauss Bros. Lumber Co. v. Louis Bossert & Sons, Inc., 62 F.2d 1004 (2d Cir. 1933); Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402, 408 (2d Cir. 1959). The disagreement between circuits over the question whether collective bargaining agreements in non-transportation industries are excluded from the Arbitration Act as "contracts of employment" (9 U.S.C. § 1) has never been explicitly settled by the Supreme Court. Signal Stat. Corp. v. Local 475, etc., 235 F.2d 298 (2d Cir. 1956). But the announced views of a Supreme Court majority point to Section 301 of the Taft-Hartley Act for enforcement of arbitration clauses in collective bargaining agreements; these views at the same time point away from the Arbitration Act in this connection. Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); General Electric Co. v. Local 205, etc., 353 U.S. 547, 77 S.Ct. 921, 1 L.Ed.2d 1028 (1957). It is also noted that the present action was commenced by the filing of a complaint and the issuance of a summons (which suggests a suit under Section 301 of the Taft-Hartley Act) rather than by petition and notice of application under Section 4 of the Arbitration Act. Cf. Engineers Ass'n. v. Sperry Gyroscope Co. etc., 251 F.2d 133, 135 (2d Cir. 1957).

There is no doubt that under Section 301(a) of the Taft-Hartley Act this Court, as a matter of federal substantive law, may and should order the specific performance of an arbitration provision of a collective bargaining agreement to which ...