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May 14, 1963

WESTINGHOUSE SALARIED EMPLOYEES ASSOCIATION AT SOUTH PHILADELPHIA, and Federation of Westinghouse Independent Salaried Unions, Plaintiffs,

The opinion of the court was delivered by: WILLSON

In this civil action tried non-jury, plaintiffs seek to compel defendant to arbitrate a dispute between the union and the defendant with respect to the claimed right of the defendant to 'subcontract' or 'contract out' work which defendant's regular employees generally perform. The issue involves the interpretation of the bargaining agreement. The evidence introduced at the trial is based largely on admission from the pleading, but as supplemented by one witness for the plaintiffs and two for the defendant. The following facts are supported by the evidence and are therefore found.

Plaintiff, Westinghouse Salaried Employees Association at South Philadelphia, hereinafter called the 'Association' is a labor organization maintaining its sole office in Prospect Park, Pennsylvania. The Association is affiliated with, and is a member of, the plaintiff Federation of Westinghouse Independent Salaried Unions, hereinafter called the Federation, an unincorporated Federation of labor organizations, having its office in Pittsburgh, Pennsylvania. The latter is the national organization of Westinghouse Independent Salaried Unions and the Association is the local affiliate.

 Defendant, Westinghouse Electric Corporation, hereinafter called the Company, is a Pennsylvania Corporation, engaged in the manufacture and sale of goods in interstate commerce, and has its principal office in Pittsburgh, Pennsylvania.

 The Association and the Federation are the duly certified collective bargaining agents for certain salaried employees of the Company at its lester Plant, Tinicum Township, Delaware County, Pennsylvania, having been so certified as such representative by the National Labor Relations Board. The national agreement was executed October 21, 1960, and the local Association was certified as the bargaining representative by the National Labor Relations Board in February of 1961. This dispute involves the interpretation of the national agreement of October 21, 1961, as the local Association and the defendant have not yet agreed upon a written agreement covering local working conditions at the Lester Plant of the defendant. All employees of the Company at the Lester Plant are engaged in an industry affecting commerce within the meaning of Section 101 of the Labor Management Relations Act, 1947, 29 U.S.C.A. Section 152(7).

 On November 1, 1950 the Company and the Federation, acting for and on behalf of and in conjunction with its affiliates entered into a written collective bargaining agreement. This agreement, referred to as the National Contract, covers wages hours and working conditions of Company employees represented by the Federation and its affiliates at various locations throughout the United States. It has been supplemented and amended on numerous occasions, the most recent being October 21, 1960. As so supplemented and amended it continues in effect until at least October 15, 1963.

 In October of 1961 the Association filed two complaints on grievance forms, which it processed through the four steps provided in the grievance procedure of the contract, in which complaints the Association complained of the employer's subcontracting of drafting work to outside firms while employees in the bargaining unit were being reduced in force.

 These two complaints were discussed together, both in the Company's replies and in the Association's statements. The Company's answer at the final step reiterated the reasons for contracting drafting work given in prior steps, i.e., to deal with both uncertain and peak load requirements, and pointed out that since no contract provision was involved, these complaints were not 'grievances' as that term is defined in Section XV-2-B of the National Contract.

 The contract provides for the arbitration of (Contract -- Section XV-A-Arbitration):

 '* * * 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 '(1) the interpretation, application or claimed violation of a provision of this Agreement or of a local supplement in effect in the bargaining unit in which the grievance arose, or '(2) a disciplinary penalty, release or discharge which is alleged to have been imposed without just cause, * * * upon the written request of either the Federation or the Company.'

 It further defines a grievance (Contract -- Section XV -- Settlement of Disputes) to mean:

 '(a) any dispute as to the interpretation application, or claimed violation by the Company of this National Agreement, its supplements or any local supplement covering the bargaining unit involved, (b) any subject that this National Agreement provides shall become a grievance, or (c) questions involving discipline, release or discharge of employes in the bargaining unit.'

 The Federation, on June 1, 1962, requested that the matter be submitted to arbitration under Section XV-A of the National Contract. The Company, on June 8, 1962, declined to submit the matter to arbitration, repeating its prior position, and stating that the matter was not within the scope of the arbitration provisions of the contract.

 At the trial counsel for both sides were in agreement that the contract provisions do not expressly refer to contracting out or subcontracting work. In response to the Court's inquiry, Mr. Shapira said: (Trans., p. 8)

 'Well, actually, your Honor, you will find that there is no contract provision in this contract that refers to subcontracting out of the work of the bargaining unit, * * *' ...

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