United States v. Voges

• Decision Date: 13 August 1954
• Docket Number: Civ. A. No. 13927.
• Citation: 124 F. Supp. 543
• Parties: UNITED STATES of America, Plaintiff, v. Fred W. VOGES, Voges Manufacturing Company, Inc., Radar Holding Corporation, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

124 F. Supp. 543

UNITED STATES of America, Plaintiff, v. Fred W. VOGES, Voges Manufacturing Company, Inc., Radar Holding Corporation, et al., Defendants.

Civ. A. No. 13927.

United States District Court E. D. New York.

August 13, 1954.

Butler, Bennett & Fitzpatrick, New York City, for Charles W. Parker, moving party. Bernard H. Fitzpatrick, John F. Butler, New York City, of counsel.

Joseph Jaspan, Brooklyn, N. Y., for receiver.

BRUCHHAUSEN, District Judge.

This is an action by Charles W. Parker against one Nathan Borock, a receiver in possession of the Voges Manufacturing Company, Inc., to compel the said receiver to enter into an arbitration.

Although various questions are raised, there is one crucial point. The question of law may be stated as follows:

"In a situation where there is a collective bargaining agreement between a company and a union with respect to all the terms of employment including the procedures for arbitration, may an individual employee in his individual capacity circumvent the union's refusal to arbitrate his dispute with the company in the absence of any showing of wrong conduct on the part of the union?"

In other words, is the individual employee a third party beneficiary? For the reasons hereinafter set forth, this Court answers these questions in the negative.

The facts are as follows: Charles W. Parker was "laid off" because of what appears to have been a work shortage. Thereafter, it is alleged that he participated in activities which were believed to be detrimental to the interests of the company, and he was discharged for cause. Pursuant to paragraph XXII of the contract a grievance hearing was held and the discharge was upheld. Article XXII of the contract, between the Company and the Union, reads as follows:

"If any difference shall arise between the Company and any employee or employees as to the application of any of the provisions of this Agreement, or if there be any complaint or grievance by any employee or by the Company with respect thereto, an earnest effort shall be made to adjust such difference, complaint or grievance by negotiations under the following procedure:

"(a) Between the employee, the Shop Steward and the foreman, or if such grievance be not adjusted within two working days:

"(b) Between the employee, a member of the grievance committee and the Shop Steward and the Plant Superintendent of the Company, or if the grievance be not adjusted within two working days:

"(c) Between the employee, the Shop Steward, the Grievance Committee and a representative of the Union and a representative of the Company, or if the grievance be not settled within ten working days thereafter, by submitting the same to arbitration as provided herein.

"(d) Within fifteen (15) days after Subdivision (c) of this Article is exhausted, by submitting a written request to the Executive Secretary of the New York State Mediation Board for appointment in writing of an arbitrator to hear and determine the dispute. The party submitting such request shall simultaneously send a copy thereof by registered mail to the other party. The decision or award of the arbitrator shall be in writing and shall be final and conclusive upon the parties to this Agreement. The fees and expenses of the arbitrator shall be borne equally by the parties."

It is alleged that a demand for arbitration was made upon the American Arbitration Association and that such demand was late within the meaning of the contract (that point and its legal consequences is of no import since this Court holds that the employee had no standing to make the demand). A request for arbitration was also sent by Parker to the Union, and was denied by letter dated June 15, 1954, upon the ground that the Union believed there were insufficient grounds. Parker now moves in his individual capacity to compel arbitration. The preamble and Article I of the said contract read as follows:

"This Agreement entered into on this 24th day of November 1952, by and between the Voges Manufacturing Co., Inc., (hereinafter referred to as the `Company') located at 103-11 98th Street, Ozone Park, L. I., N. Y., and District #15 of the International Association of Machinists, A.F. of L., located at 439-441 Fourth Avenue, New York, N. Y., (hereinafter referred to as the `Union').

"Article I Recognition

"The Company recognizes the Union as the sole and exclusive bargaining agency for the purposes of bargaining in respect to rates of pay, wages, hours of employment and all other conditions pertaining to employment of all of the employees in the bargaining unit hereinafter set forth."

It is thus apparent that the parties to the contract are the Company and the Union. It is equally clear that the sole bargaining unit, of all the employees, is the Union. It is true that the preamble states that the parties shall be referred to as the "Company" and the "Union". However, they are referred to as "parties" in many parts of the contract. Not only is the word "parties" used in Article XXII, sections 2 and 5 as set out, supra, but in other parts thereof. Article XXX, involving termination of the contract, mentions "parties". The "whereas" clause in the supplemental contract dated November 13, 1953, reads:

"Whereas, there was in effect be-between the parties an agreement dated November 24, 1952; and

"Whereas, collective bargaining has taken place between the parties hereto."

Section 11(d) amending Article XXII is particularly clear with respect to the relationship of the word parties and the contract. This Section reads as follows:

"11(d) Within fifteen (15) days after Subdivision (c) of this Article is exhausted, by submitting a written request to the Executive Secretary of the American Arbitration Association for appointment in writing of an arbitrator to hear and determine the dispute. The party submitting

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