Underwood Corp. v. LOCAL 267, INT. UNION OF E., R. & M. WKRS.

Decision Date28 April 1960
Docket NumberCiv. No. 6634.
Citation183 F. Supp. 205
CourtU.S. District Court — District of Connecticut
PartiesUNDERWOOD CORPORATION, Plaintiff, v. LOCAL 267, INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, AFL-CIO, Defendant.

Austin K. Wolf and Robert Ashkins, of Cohen, Schine & Wolf, Bridgeport, Conn., for plaintiff.

James McConnell Harkless, of Grant, Angoff, Goldman & Manning, Boston, Mass., for defendant.

CLARK, Circuit Judge (sitting as District Judge pursuant to statutory designation).

The plaintiff employer commenced this action to stay the enforcement of and to vacate an arbitrator's award in the Connecticut Superior Court under Conn.Gen. Stat. § 8151 (1949). The defendant union removed the action to this court, asserting jurisdiction under § 301 of the National Labor Relations Act, 29 U.S.C. § 185(a). The court has denied a motion to remand for lack of federal jurisdiction, D.C.Conn., 171 F.Supp. 102—a ruling whose propriety was confirmed by the subsequent decision in Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. The complaint is considered as seeking a declaratory judgment, 28 U.S.C. § 2201, as to the arbitrability under a collective bargaining agreement of a labor dispute between the parties. While the hearing below was initially directed to a motion by the defendant for a stay of the action, the parties stipulated that the hearing should be upon the merits and evidence was taken upon a full submission of the case. No difficulty is perceived in the fact that a formal cross-motion to compel arbitration was not advanced. Compare New Bedford Defense Products Division of Firestone Tire & Rubber Co. v. Local No. 1113 of Intern. Union, United Auto. Aircraft and Agr. Implement Workers of America (UAW, AFL-CIO), D.C. Mass., 160 F.Supp. 103, affirmed 1 Cir., 258 F.2d 522. If full jurisdiction on the merits were not now accepted, the employer to secure adjudication would need only to refuse to proceed with arbitration, and the parties would necessarily be back before the court, albeit in a reverse posture.

The underlying dispute involves the employer's change in the screw-machine cycle time for manufacturing certain parts from twenty to ten seconds, with an attendant reduction in the operator's piecework price or rate. The reduction in cutting time was the result of a change in gearing which the employer believed to be consonant with quality results. The collective bargaining agreement of January 14, 1955, then in force between the parties, Exhibit A herein, provided a grievance and an arbitration procedure for the settlement of controversies. The grievance procedure had three "steps": a presentation to the department foreman for his decision, then a decision by the divisional superior, and then an appeal to and decision by the Personnel Manager. Here the union, after exhausting the grievance procedure, filed a demand for arbitration. The employer denied that the grievance was arbitrable, but eventually entered into a stipulation with the union, Exhibit C, for a limited submission to obtain an "interim" ruling on three issues: the timeliness of the grievance; the withdrawal of the grievance from arbitration; and the arbitrability of the grievance. Then under the prescribed arbitration procedure the American Arbitration Association appointed an arbitrator, who heard proofs and rendered a reasoned decision, Exhibit E, finding against the employer on each of the three issues. Thereupon the employer instituted this action and the union moved to stay it as premature until the arbitrator had ruled on the merits of the grievance. With the parties' stipulation at the court's suggestion that the case be considered as presented in all aspects, we shall proceed to decision.

In support of the preliminary motion for a stay it is asserted that suit at this time is analogous to an interlocutory appeal and that the court should decline to exercise its jurisdiction until arbitration has been completed. For this contention it might be argued that the parties should be compelled to complete their private settlement proceedings and then this action might be rendered moot by a decision favorable to the employer on the merits of the grievance. Further, judicial determination at this stage subjects the parties to the burden of a double submission before the arbitrator. Nevertheless it seems now to be settled that the employer might have raised the question of arbitrability prior to any submission. Local 205, United Elec., Radio and Mach. Workers of America (UE) v. General Elec. Co., 353 U.S. 547, 77 S.Ct. 921, 1 L.Ed.2d 1028, affirming 1 Cir., 233 F.2d 85; Engineers Ass'n v. Sperry Gyroscope Co., 2 Cir., 251 F.2d 133, certiorari denied 356 U.S. 932, 78 S.Ct. 774, 2 L.Ed.2d 762; Local No. 149 of American Federation of Technical Engineers (AFL) v. General Elec. Co., 1 Cir., 250 F.2d 922, certiorari denied 356 U.S. 938, 78 S.Ct. 780, 2 L.Ed.2d 813. See also Barrett v. Miller, 2 Cir., 276 F.2d 429, and Mahoney v. Fisher, 2 Cir., 277 F.2d 5.

So the courts have refused to compel arbitration without determining whether the particular grievance was within the scope of the parties' arbitration agreement, notwithstanding contrary suggestions advanced by many commentators. These suggestions are grounded upon the belief that the courts by determining arbitrability in the first instance are deprived of the advantage of the arbitrator's greater familiarity with the unique problems involved in the interpretation of collective bargaining agreements and of his background knowledge of the particular contract, parties, and industry in question. See Local No. 149 of American Federation of Technical Engineers (AFL) v. General Elec. Co., supra, 1 Cir., 250 F.2d 922, 926-927, certiorari denied 356 U.S. 938, 78 S.Ct. 780, 2 L.Ed.2d 813. However persuasive this rationale may be, it obviously loses much of its force where, as here, a party seeks judicial protection at an intermediate stage of the arbitration proceeding. Consideration of the issue of arbitrability in its present posture thus appears preferable to initial judicial determination. Either party may avoid such intermediate judicial intervention in the arbitral process by refusing to agree to a partial submission on the issue of arbitrability. When that has been had, by agreement, then judicial adjudication appears appropriate and in any event must be given under the precedents cited.

Alternatively, it is asserted that the parties intended the arbitrator's ruling on arbitrability to be final and binding, and that the employer agreed to proceed to the merits of the grievance if it were found to be arbitrable. The stipulation of submission, however, states merely that the arbitrator "will render an interim ruling on the following issues raised by the Company * * *." Neither this document nor the fact of submission supports the inference suggested by the union, especially in view of the acknowledgment that the arbitration clause does not render the arbitrator's determination on the issue of arbitrability final and binding.1 The only testimony on this question adduced at the trial was that of Mr. Kaye, the employer's plant personnel director at the time of the grievance and arbitration herein involved. This evidence, which the court finds credible, negates the suggestion that the employer, in agreeing to a partial submission, relinquished its right to judicial determination of these issues or agreed to proceed with a total submission before seeking judicial relief. Evidently a partial submission was agreed upon because the employer felt confident of prevailing therein, while the union preferred that arbitrability initially be determined by an arbitrator, rather than by a court.

Accepting therefore the conclusion that the merits of the dispute are now before the court for adjudication, it is desirable at the outset to note how the parties framed the issue. This appears from Exhibit B, the "Grievance Record." From this it appears that Employee #5060, Wm. Johnston, on January 16, 1956, presented to his foreman a grievance thus described:

"Nature of Grievance Part Nos. XT-3, XT-4, & XT-5.
"The time on the above jobs was established in Nov. 1933, at 20 seconds.
"In Dec. 1955 the cycle time was changed to 10 seconds and the rates were reduced accordingly.
"The operator is protesting this reduction in time and price as a violation of Section 16—Paragraph (H) in the contract."

Next appears "Step Two, Decision by Divisional Supervisor," on January 24, 1956, as follows:

"Supervisory employees are charged with the responsibility of getting ultimate output from any and all equipment. Whenever it is discovered that it is possible to decrease cutting times and still end up with quality results, the company feels that it is justified in retiming.
"The change in rates on the jobs noted in this grievance results from changes in gearing. In the opinion of management this constitutes a change in method inasmuch as gear changes alter cycle times and therefore rates."

Then we have "Decision Appealed to Third Step," January 25, 1956, with "Additional Comments by Union" thus:

"In this case the rate was not being grieved. The grievance pertained to the procedure the Corp. used in handling a grieved job plus the fact that we do not consider this practice a new method of operation."

And finally we have "Step Three, Decision of Personnel Director and/or His Representative," on March 7, 1956, thus:

"This is a grievance in which employee William Johnston has protested the change in the cycle time on Part Nos. XT-3, XT-4, and XT-5, with a resulted reduction in rate.
"This grievance was discussed in the Grievance Committee meeting of 2-10-56. At that time it was established that the change in rate on the grieved jobs was due to changes in gearing which resulted in lower cycles. In this case, the cycling was changed from 20 seconds to 10 seconds. The union
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4 cases
  • Thornton v. Victor Meat Co.
    • United States
    • California Court of Appeals Court of Appeals
    • March 27, 1968
    ...Wkrs. of Amer., AFL-CIO v. New York Telephone Co. (S.D.N.Y. 1962) 209 F.Supp. 389, 391; Underwood Corp. v. Local 267, Int. Union of E., R. & M. Wkrs. (D.Conn.1960) 183 F.Supp. 205, 208--211; Posner v. Grunwald-Marx, Inc., supra, 56 Cal.2d 169, 175, 14 Cal.Rptr. 297, 363 P.2d 313; McCarroll ......
  • Carey v. General Electric Company
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 11, 1963
    ...* * * be subject to the arbitration provisions of this agreement."); Underwood Corp. v. Local 267, International Union of Elec. Workers, 183 F.Supp. 205 (D.Conn.1960) (Clark, Circuit Judge, sitting by designation) ("There may not go beyond Step 3 of the grievance procedure to arbitration an......
  • Carey v. Westinghouse Elec. Corp.
    • United States
    • New York Court of Appeals Court of Appeals
    • July 6, 1962
    ...values, which is beyond the range of the authority granted to the arbitrator by the parties (see Underwood Corp. v. Local 267, Int. Union of Elec., Radio & Mach. Workers, D.C., 183 F.Supp. 205; Sunnyvale Westinghouse Salaried Employees Assn. v. Westinghouse Elec. Corp., D.C. 175 F.Supp. Fin......
  • Desert Coca Cola Bottling Co. v. GENERAL SALES DRIVERS, ETC., 19128.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 23, 1964
    ...v. New York Tel. Co., S.D.N.Y., 1962, 209 F.Supp. 389, affirmed, 2 Cir. 1964, 327 F.2d 94; Underwood Corp. v. Local 267 Int. Union of E. R. & M. Workers, D. Conn., 1960, 183 F.Supp. 205; Carey v. Westinghouse Electric Corp., 1962, 11 N.Y.2d 452, 230 N.Y.S.2d 703, 184 N.E. 2d 298, reversed o......

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