to unload frozen meat or other cargo through the use of two pallet drafts.
Conclusions of Law.
1. The Court has jurisdiction over the parties and subject matter. See 29 U.S.C. § 185.
2. The Court has power to compel a union to submit an issue to arbitration if under the labor contract it is a matter subject to arbitration.
3. It is for the Court to determine whether the dispute is subject to arbitration under the contract.
4. The use of two pallet drafts is a change in the established method of operation, and the dispute therefore comes within paragraph 13(d) of the labor contract.
5. The dispute in question is not subject to arbitration but rather to negotiation.
It is clear that this Court has the power to compel a union to arbitrate a dispute or grievance if the court determines that it is a matter for arbitration under the labor contract. 29 U.S.C. § 185; John Wiley & Sons, Inc., v. Livingston, 376 U.S. 543, 11 L. Ed. 2d 898, 84 S. Ct. 909 (1964); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960); United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960); Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 1 L. Ed. 2d 972, 77 S. Ct. 912 (1957). Since Congressional policy favors the settling of labor disputes through arbitration, the Supreme Court has stated, "an order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, at 582-83.
We can say with positive assurance in this case that the dispute in question is not covered by arbitration. We have a situation where literally thousands of ships have loaded and discharged cargo in the port of Philadelphia since World War II when pallets were first used. Even assuming the veracity of plaintiff's evidence, the plaintiff could only name several dozen incidents at most when two pallet drafts were employed, and even then its witnesses could recite only a few ships on which this method was employed. The plaintiff never produced its records which could have shown the number of times this method was used and the names of the ships on which it was employed. We can only conclude that the failure to produce this best evidence indicates that the use of two pallet drafts was not at all extensive. Moreover, the few times that the two pallet method was used, it was done without the knowledge of the union or its officials. These officials spend a great deal of time on the waterfront observing the loading and discharging of cargo, and they never once observed the two pallet method until February 28, 1967. The sporadic and clandestine use of two pallets to a draft is certainly not an established method of operation under the labor contract, and the plaintiff's attempt to employ this system is a change in the established method. This dispute is one for negotiation between the parties under paragraph 13(d) of their collective bargaining agreement.
AND NOW, it is hereby Ordered that the plaintiff's motion to compel the defendant to submit the dispute in issue to arbitration be and the same is DENIED.
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