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LOCAL 77, AMERICAN FEDN. OF MUSICIANS v. PHILADELP

April 5, 1966

LOCAL 77, AMERICAN FEDERATION OF MUSICIANS, AFL-CIO
v.
The PHILADELPHIA ORCHESTRA ASSOCIATION



The opinion of the court was delivered by: LORD, JR.

 Defendant is the Philadelphia Orchestra Association, hereafter called the Association. Plaintiff is the union representing the musicians of the Orchestra, hereafter called the Union. The Association has planned a concert tour of South and Central America, which hereafter will be called the Tour. The scheduled Tour cannot be made unless the orchestra travels by air.

 On September 9, 1963, the parties entered into a collective bargaining agreement which is presently in force - hereafter called the Contract. This Contract contains in Article 15(B) certain provisions concerning travel requirements for out of town concerts. It has not been contended, however, that such provision or any other part of the Contract specifically mentions air travel as such.

 Sometime in the summer of 1965, the Association let it be known that it was scheduling this Tour as part of the regular season encompassed by the Contract, and that the musicians - which is to say the membership of the Union - would be required to travel by aircraft.

 The Union objected; there was submission to arbitration by mutual agreement, and the Arbitrator decided in a manner which the Union challenges in the present civil action.

 The pleadings in this case comprise: the Complaint filed March 21, 1966; a Motion for Preliminary Injunction filed the same day; and this Court's order setting March 31, 1966 at 10 o'clock A.M. as the time for hearing on the plaintiff's motion for Preliminary Injunction and vacating of the arbitration award. Thereafter the Association filed its Motion to Dismiss under Rule 12(b)(6), Fed.R.Civ.P., on the ground that the complaint fails to state a claim against the Association upon which relief can be granted. At the same time the Association filed its Answer.

 The Answer responds to the 21 numbered paragraphs of the complaint by admitting 17 thereof. As to the remainder, the Association disclaims the necessity of answer on the ground that those 4 paragraphs are simply conclusions of law. At any rate it is clearly agreed that there is no dispute as to any matters of fact pertinent to resolution of the present litigation. The parties agree that the question should be decided purely as a matter of law.

 Comprehensive briefs have been filed by both parties, and counsel have also presented their respective positions with great skill and sincerity on oral argument. Having had the benefit of these briefs and arguments, points and authorities - and having studied the pleadings and accompanying exhibits, the Court is prepared to rule upon the motions.

 The complaint of Union does not attack the fact of arbitration or the form of the reference of the question. For that matter, the agreement of both parties to such arbitration is shown by the correspondence submitted with Association's Answer as Exhibits A and B thereto. One of those exhibits is a letter of Union's counsel to the American Arbitration Association dated January 28, 1966. In that letter he first disclaims acquiescence in certain characterizations of the dispute and its background which are contained in the letter (Exhibit A) of Association's counsel to the same arbitration association. But then he goes on to say:

 
"* * * We are in accord that the narrow issue to be determined is whether under the collective bargaining agreement the musicians may be required to fly." (Exhibit B).

 The essence of the resulting Award of Arbitrator is contained in its first paragraph (Appendix A, infra):

 
"Under the contract, the Association may require members of the Orchestra to travel by airplane on the forthcoming tour of South and Central America, except that individual members who can show a genuine physical or psychological incapacity for flying shall be excused, without pay, from making the tour."

 In paragraph 16 of the Complaint, and also in paragraph 13 of the Motion for Preliminary Injunction, Union says:

 
"Said award and opinion is invalid and should be set aside in that:
 
a. The arbitrator exceeded his powers, authority and jurisdiction.
 
b. The arbitrator modified and amended the existing provisions of the agreement in contravention of the specific limitation imposed by Paragraph 25 of the agreement.
 
c. The arbitrator rendered an award and opinion which on its face is not based on the contract, but is in direct conflict with the contract and is no more than a proposed offer of settlement which had in fact been rejected by Plaintiff as is reflected in the affidavit attached hereto and marked Exhibit 'C'.
 
d. The arbitrator rendered an award and opinion upon subject matter which was not submitted to him."

 Jurisdiction is obtained under the Labor Management Relations Act of 1947 as amended, Sec. 301, 29 U.S.C.A. § 185; and also under the Act of July 30, 1947, 61 Stat. 669, 9 U.S.C.A. § 10 relating to arbitration.

 Association points out, however, that the Union's burden in seeking to set aside the award of the Arbitrator is overwhelming. The circumstances of the reference to arbitration have already been mentioned. In the collective bargaining agreement (Sec. 25) there is the Union's own commitment that the decision of the Arbitrator shall be "final and binding upon all parties." Association points to the language of the court in Local 453, I.U. of E.R. & M. Workers, etc. v. Otis Elevator Co., 314 F.2d 25, 28 (2nd Cir. 1963):

 
"Having bargained for the decision of the arbitrator * * * the parties are bound by it, even if it be regarded as unwise or wrong on the merits * * *."

 Union counters by saying that the Arbitrator did not fulfill his obligation; that he abused the power conferred upon him. The text upon which this argument rests is a certain passage from United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960), consisting of the last three sentences of the first full paragraph of the opinion of the Court at page 597, 80 S. Ct. at page 1361:

 
"* * * Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award."

 Appended hereto is the award and the accompanying 12-page opinion of the Arbitrator (Appendices A & B). It must be understood that by attaching the Arbitrator's writings hereto, this Court is in no sense purporting to pass upon the merits thereof. Courts may not look into the merits of an arbitrable matter. International Tel. & Tel. Corp. v. Local 400, etc., 286 F.2d 329, 331 (3rd Cir. 1961). More cases are collected in H. K. Porter Co. v. United Saw, File and Steel Prod. Wkrs., 217 F. Supp. 161, at 164 (E.D.Pa.1963); affirmed in this respect (under same caption) 333 F.2d 596, 600 (3rd Cir. 1964).

 The opinion last cited is not only a familiar one, but also is peculiarly pertinent to the present problem. Three decisions are involved in that case, with the same parties in each: the Union, being the United Saw, File and Steel Products Workers of America, Federal Labor Union No. 22254, AFL-CIO, and the Employer-company, being the H. K. Porter Company, Disston Division. After Porter acquired the Disston plant, it moved it from Philadelphia to Danville, Virginia. Agreement as to severance pay and pension rights of affected employees was held arbitrable in United Saw, File and Steel Products Workers v. H. K. Porter Co., 190 F. Supp. 407 (E.D.Pa.1960). The arbitrator's award which resulted was challenged as not within the scope of arbitration, but upheld in H. K. Porter Co. v. United Saw, File and Steel Prod. Workers, 217 F. Supp. 161 (E.D.Pa.1963).

 Part I of the Ruling of the Arbitrator concerned employees whose jobs had been terminated by removal of the plant, and who had not attained the age of 65 years, but had rendered the Company more than 25 years of service. The contract simply provided that

 
"* * * Basic yearly allowance * * * shall be paid a retired employee who has reached the age of 65 with at least 25 years of continuous service with the company." (See 217 F. Supp. at 165).

 On appeal from the District Court's affirmance of the Arbitrator's Award, the Court said in H. K. Porter Co. v. United Saw, File and Steel Products Workers, 333 F.2d 596, 601 (3rd Cir. 1964):

 
"In the margin is a list of the [20] instances examined by the Arbitrator where the length of service had influenced the Pension Board of Disston to grant pensions to employees notwithstanding the failure of strict compliance with the eligibility clause of sixty-five years of age and twenty-five years of continuous service. Under the circumstances of this case these practices formed a source of guidance to which the Arbitrator was authorized to look, in interpreting the eligibility clause of the agreement. The Arbitrator acted entirely within his competence in granting the pensions based on duration of service. The District Court properly approved these findings and conclusions. * * *"

 In part II of the Award, the Arbitrator had also made awards to employees who had reached age 65 without 25 years of continuous service (age 65 but less than 25 years of service - as opposed to 25 years of service but age less than 65). No background or precedent of practice for awards of any kind in such case was found, and it was held that to this extent the award had been erroneously affirmed below. That part of the award was a violation of the stricture that "* * * the Arbitrator may not administer his own brand of industrial justice." Porter Co. v. United Saw, File and Steel Products Workers, 333 F.2d 596, 602 (3rd Cir. 1964).

 The factual parallel is quite close. The sale and closing of the Disston plant there was obviously not in contemplation when the saw workers and the former employer reached their bargain. In the same way, the contemplated Tour was not in mind when the Association and the Union revised and renewed their contract in 1963. The instant Contract does not mention air travel nor, for that matter, does it mention intercontinental travel, by ocean or by air.

 To turn back now to the Union's position, it will be remembered its argument relies heavily upon a passage of three sentences quoted from the case of United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960) which have already been quoted above. It would be well now to consider the first part of the paragraph in which those admonitions against arbitrator's private industrial justice appeared, i.e.:

 
"When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There the need is for flexibility in meeting a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet a particular contingency. Nevertheless, an arbitrator is confined * * * [etc., as quoted earlier]". United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597, 80 S. Ct. 1358, 1361, 4 L. Ed. 2d 1424 (1960).

 While the cases quoted here, and the authorities collected therein, may not contain all the law and the prophets on this subject, they suffice to show that there is but one inquiry here. It is not whether this Court approves the Arbitrator's award; or whether the award and opinion contain surplusage or on the other hand are too condensed. The question is whether the award is based on the contract. In that light the Award and Opinion, Appendices A & B hereafter, will now be re-examined.

 Concentrating upon that precise question, the answer is abundantly clear: the Arbitrator did indeed carry out with fidelity his obligation to interpret and apply the contract. This is apparent as one reviews the opinion, page by page: The first page delineates the problem and its history in the first two paragraphs, and commences discussion of the contract in the third - first stating the position of the Union in that respect. On page 2 the most nearly relevant paragraph of the contract is quoted, and the Union's argument with respect thereto is briefly stated, with the Association's counter argument.

 On page 3 the history of air travel with respect to orchestras generally and, since 1955, with respect to this Orchestra in particular, is discussed. The Philadelphia Orchestra has made over 30 trips by air since 1955, and the respective arguments of the Union and the Association as to whether that history establishes an acquiescence by the Union in air travel under the Contract and its predecessors is thoroughly analyzed. Circumstances of the particular trips are detailed, and the Arbitrator finds on page 4 that

 
"* * * Only one trip (to Havana in 1958) found all the members flying without any special agreement having been negotiated."

 Down through the center of page 6 of the opinion (Appendix B), the possible significance of bargaining history and negotiation - as argued by both sides - is carefully considered. The Arbitrator concludes that the contract is not so clear and unambiguous, on the subject of air travel, as to support the Union's argument that there is no room for consideration of evidence on the subject. That result is supported by reason and analysis; it is not to be deemed capricious or arbitrary.

 On page 7 and 8 the custom and practice regarding air travel is considered against the background of the contract, or so much of it as is pertinent, in the following words (Appendix B, p. 8):

 
"In my judgment, this history indicates that the parties have recognized and accepted air travel as an acceptable and permissible mode of travel. To that extent I think there has been shown a mutual intent and understanding, to the effect that travel by airplane, just as much as travel by railroad, is a proper mode of transportation for out-of-town tours under the contract. It has been accepted, if you will, as meeting the contractual obligation to provide 'first class transportation'."

 Beyond that, the Arbitrator does no more than to decide that

 
"Under the contract, the Association may require members of the Orchestra to travel by airplane on the forthcoming tour of South ...

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