Appeal, No. 53, March T., 1949, from judgment of Court of Common Pleas of Westmoreland County, Aug. T., 1944, No. 483, in case of Frank J. Gordon v. Braeburn Alloy Steel Corporation. Judgment affirmed.
S. Harold Grossman, with him Joseph M. Loughran, for appellant.
Robert W. Smith, with him Smith, Best & Horn, for appellee.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. JUSTICE HORACE STERN
In this action by an employe against his employer to recover sums alleged to have been wrongfully deducted from his earnings the question is whether the trial court was justified in directing, as it did, a verdict for defendant.
Braeburn Alloy Steel Corporation, the defendant, manufactures high-grade tool steel. Frank J. Gordon, the plaintiff, has been in its employ since 1927. Originally the "roller" operating each of the two rolling mills in the plant was paid by defendant a certain price for the finished steel based on the amount of production; out of what he received he paid the nine members of his crew. Plaintiff was originally a "straightener" and later a "rougher"; the roller under whom he worked was one James Dunbar. When the Social Security Act went into effect this plan of operation was changed in order to make it possible for the members of the crew to be entitled to social security; they became direct employes of defendant and earnings were divided among them according to an agreed upon schedule of percentages known as the "distribution of tonnage rates". In that same year a Local of the United Steel Workers of America was organized in defendant's plant; plaintiff became, and has ever since remained, a member of it. On March 15, 1940 a collective bargaining agreement was entered into between defendant and the Union which set forth rates of pay and other conditions of employment; it was stated therein that it was the intention of the contract to preserve the then existing scale of wages, and, for the purpose of clarification of the tonnage rates, a schedule of such rates was attached; the share assigned to the roller was 28 1/2%, the remaining 71 1/2%
being distributed among the other members of the crew. This agreement was renewed, with some modifications, on April 19, 1941, on March 9, 1943 and on June 15, 1945; the tonnage rates were changed as of January 30, 1941, but no change was ever made in the percentages of participation therein. In 1941 defendant put on an eight-hour night shift and plaintiff was promoted from his job as a rougher to that of night-turn roller on this shift, a position which he retained until June 6, 1946 when he resumed his former position as rougher under Dunbar.
During the period of plaintiff's services as night-turn or "turn" roller, instead of receiving 28 1/2% of the earnings of the mill he received only 23 1/2%, the difference of 5% being paid as additional compensation to Dunbar, the day or boss roller. To recover this deduction from the amount to which he contends he was entitled plaintiff brought the present suit in assumpsit; his claim is for $3,724.78, covering the period from March 1, 1942, at which time he had filed a "grievance report", to June 6, 1946, when he ceased his employment as turn roller. At the trial the only testimony presented was that of plaintiff and his witnesses, and there is no disagreement between the parties as to the basic facts determinative of the issue here involved.
Plaintiff bases his action upon the agreements between defendant and the Union and also upon a decision of an arbitrator in 1944 which is hereinafter referred to. The first question that naturally arises is whether he comes within the scope of those agreements and can claim any right thereunder. All of them provided that they pertained to members of the Union employed in defendant's plant, but with the express exclusion of "Foremen, Assistant Foremen or Supervisors in charge of any classes of labor, or ...