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August 18, 1959

SUNNYVALE WESTINGHOUSE SALARIED EMPLOYEES ASSOCIATION and Federation of Westinghouse Independent Salaried Unions, Plaintiffs,

The opinion of the court was delivered by: GOURLEY

Union and Employer are in dispute regarding the arbitrability of a grievance under the collective bargaining agreement executed by said parties.

Union sues in the District Court under Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185, in accordance with the rule of Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S. Ct. 912, 1 L. Ed. 2d 972.

 From the stipulated facts and oral testimony it appears that the collective bargaining agreement as modified contains a detailed grievance procedure for the settlement of disputes and for the arbitration of certain types of grievances which remain unsettled after the grievance procedure has been exhausted. Not every matter is arbitrable without the consent of both sides and there are express limitations on the authority of the arbitrator. Where there is disagreement as to the arbitrability of any grievance this issue must be determined by the court before the matter can proceed to arbitration.

 The issues before the court are:

 (1) Whether the grievance involves the interpretation, application or claimed violation of a provision of the agreement, and

 (2) whether any provision of the contract precluded an arbitrator from acting in the grievance.

 After a full, complete and exhaustive hearing, I conclude the grievance is not arbitrable under the modified collective bargaining agreement.

 History or Background of Proceeding

 Employer is a Pennsylvania corporation having its principal office in Pittsburgh, Pennsylvania, and having plants and factories in many states of the United States, including one in Sunnyvale, California.

 Union represents certain employees of Employer at various places throughout the United States, and some 700 salaried, clerical and technical employees at the Sunnyvale plant.

 Union and Employer entered into a written collective bargaining agreement effective November 1, 1950, covering wages, hours and certain other conditions of employment. Contract was amended and supplemented from time to time, the currently effective amendment being dated October 15, 1955 and was in effect at all times material to this action.

 The contract contains a detailed procedure for processing any 'grievance.' A grievance is defined in the contract as any dispute as to the interpretation, application or claimed violation of the contract, or any subject that the contract specifies may become a grievance, or any question involving discipline, release or discharge of employees covered by the contract.

 On or about February 18, 1957, Union filed a grievance on behalf of an employee union member named Jane Graham, and asserted that since June 1, 1956 said employee was 'group leading' without group leader pay, and claimed such pay retroactive to June 1, 1956.

 In an exchange of correspondence and after a series of meetings as prescribed in the grievance procedure, Employer denied the grievance and Union supported it, with the result that it was not resolved by the grievance procedure.

 On or about August 19, 1957, Union notified Employer that it was referring the Graham grievance to arbitration under Section XV-A:

 'A. Except as otherwise provided in this Agreement, any grievance involving action taken or a failure to act subsequent to October 28, 1955, which remains unsettled after the grievance procedure has been exhausted pursuant to Section XV and which involves either

 '(2) a disciplinary penalty, release or discharge which is alleged to have been imposed without just cause, shall be submitted to arbitration upon the written request of either the Federation or the Company.'

 On or about September 9, 1957, Employer answered saying that the grievance was not arbitrable and declining to arbitrate.

 The exchange of correspondence of August 19 and September 9 brought into play Subsection D of Section XV-A, which reads:

 'D. The American Arbitration Association shall have no authority to process a request for arbitration or appoint an arbitrator if either party shall advise the Association that the grievance desired to be arbitrated does not, in its opinion, raise an arbitrable issue. In such event, the Association shall have authority to process the request for arbitration and appoint an arbitrator in accordance with this Agreement and the above-mentioned Rules only after a final judgment of a Court has determined that the grievance upon which the arbitration has been requested raises an arbitrable issue or issues.'

 Following Employer's notification of September 9, 1957, Union, on or about May 26, 1958, jointly brought this action to compel arbitration of the Graham grievance.

 Plant Operations

 The Sunnyvale plant is a rather large one, covering some fifty-three acres and roughly square in shape. It is made up of a number of buildings and areas and contains a number of areas in which materials are stored.

 Transportation of materials between the various buildings and areas of the plant is accomplished by a crew of men, between 30 and 40 in number, known as the 'yard crew.'

 The yard crew is made up of 'jeep' drivers, truck drivers, crane operators, hook-ons and locomotive operators. The men in the yard crew are members of the Teamsters union and are covered by a separate collective bargaining agreement.

 In moving materials the yard crew uses and operates jeeps, which are motorized fork lift trucks, flat bed automobile trucks of various sizes, self-propelled cranes, and a gasoline locomotive that operates over some three miles of track within the plant.

 The supervisor of the yard crew is a foreman, excluded from the bargaining unit. His office is roughly in the middle of the plant. He spends much of his time travelling throughout the plant to areas where men in the crew are working, actually riding a bicycle to get from one such area to another.

 The yard foreman normally is in the plant only on the day shift, although he is 'on call' at all times. At night those of the crew who work are under a group leader who is a teamster and a member of the Teamster union, and for about four years prior to November 1956, Jane Graham was a record clerk in the yard foreman's office.

 Some time prior to June 1, 1956, Employer decided to install a two-way radio communications system for transmission of requests for movement of materials to jeep or truck drivers, crane operators and locomotive operators, just as a taxicab dispatcher uses his two-way radio system, and although Union was fully informed in advance of the installation of this system no objection was made thereto.

 Finally, the parties agreed upon the description of the job, called 'yard office clerk' and at Union's insistence negotiated a salary increase.

 The agreed upon description of the job was as follows:

 'Primary function: Receives requests either personally or by telephone, for movement of materials by radio-controlled equipment. Transmits requests by radio-telephone to operators of equipment.

 'Working Procedure and/or Responsibility Assigned: Records on Form SV 5665 requests for transportation of materials. Transmits requests in order of requirement to drivers of equipment. Must know weight-carrying capacity of equipment. Uses judgment in routing requests to drivers in order to fully utilize equipment.

 'Performs other clerical functions necessary in yard office.

 'Scope, Purpose and Frequency of Contacts: Extensive contact with drivers and plant personnel requesting service.

 'Direction of Others: None

 'Direction Received: Works under the direct guidance of supervisor.

 'Pre-Employment Requirements:

 '1. Education: High school or equivalent. Restricted Radio-Telephone ...

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