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June 23, 1967

Karl R. Smith et al., Plaintiffs
Pittsburgh Gage & Supply Company, Defendant

Rosenberg, D.J.

The opinion of the court was delivered by: ROSENBERG

This matter is here on a motion by the defendant Pittsburgh Gage & Supply Company to dismiss the complaint under Federal Rule of Civil Procedure 12(b).

 The complaint alleges jurisdiction by reason of § 301 of the Labor Management Relations Act of 1947, as amended (61 Stat. 156, 29 U.S.C.A. § 185). It is further averred that at all times material to the complaint, the plaintiffs were employees of the defendant and members of Steamfitters Local Union No. 449; that each of the plaintiffs was laid off in January, 1961; that they were informed the lay-off was due to "business conditions and reduction of work"; that the plaintiffs subsequently discovered that the defendant "fraudulently misrepresented" the facts to the plaintiffs, and in breach of contract had in fact discharged the employees in January 1961; that the defendant by terminating the plaintiffs' employment without sufficient and reasonable cause violated Article IV, §§ 2, 3, 6 and 13 of the collective bargaining agreement between it and Local Union 449; that the collective bargaining agreement was in full force and effect at the material times; that by refusing to recall the plaintiffs and by hiring new employees to replace them in the bargaining unit the defendant unlawfully terminated the plaintiffs' employment in violation of the collective bargaining agreement; that the plaintiffs made demands for reemployment and "individually and through their Union agents, attempted to implement the first two steps of the grievance and arbitration clause of their contract", but were refused and denied by the defendant; that the defendant refuses to recognize their grievances or arbitrate because the defendant claims there was no contract in effect from May 1, 1960 to August 26, 1963; and that the plaintiffs are entitled to compensatory damages and reinstatement to their jobs, or alternatively, that the Court must compel the defendant to arbitrate the plaintiffs' claims under the grievance and arbitration provisions of the contract, which the Court is requested to conclude as a matter of law in force and effect at all times material to the plaintiffs' cause of action.

 On January 20, 1965, these three plaintiffs and one Ed Owens brought an action in this District Court under the same provisions of the Labor Management Relations Act and named as defendants, Pittsburgh Gage & Supply Company and Steamfitters Local Union 449 (245 F. Supp. 864, W.D. Pa., 1965). In the complaint of 1965, it was averred that at all times material to the complaint the defendant union was the authorized collective bargaining agent for the defendant company; that both defendants breached the collective bargaining agreement in demanding that the individual plaintiffs leave, quit and withdraw from the defendant union and join some other bargaining unit; that the plaintiffs were threatened with economic and physical reprisals for their failure to do so; that they were unfairly discharged from employment for their failure to quit the defendant union; that the defendants violated the collective bargaining agreement in violating the job classification provisions, in violating the seniority provisions, and in violating the grievance and dispute provisions; that the union contract was further violated when the defendant company hired and transferred an equal number of non-union persons to perform the work formerly done by the plaintiffs; that each plaintiff was entitled to compensatory damages and punitive damages.

 In summary, the earlier action was brought against both the company and the union charging them with conspiracy to violate the collective bargaining agreement in the wrongful discharge of the four plaintiffs. The present action by three of the four plaintiffs is against the company only on the theory of violation of contract provisions relating to discharge, the processing of grievances, and the duty of arbitration.

 In the earlier action, upon the defendants' motions to dismiss, for lack of jurisdiction over the subject matter as to the defendant company and for failure to state a claim upon which relief could be granted as to the defendant union, the complaint was dismissed. Smith et al. v. Pittsburgh Gage & Supply Company, supra. In my opinion of June 16, 1965, I held that no contract existed between the defendant company and the defendant union at the time when the alleged breach of contract occurred. Furthermore, I held that the plaintiffs' claim was a demand for relief from an unfair labor practice, rather than a suit for breach of contract, and as such, the claim should have been presented to the National Labor Relations Board.

 Our Court of Appeals for the Third Circuit affirmed the judgment per curiam, Smith et al. v. Pittsburgh Gage & Supply Company, 361 F.2d 219, C.A. 3, 1966.

 The present motion to dismiss the complaint filed in the second action raises the issue of the effect of the dismissal of the first action. The defendant company contends that both actions arise out of basically the same fact situation; that the plaintiffs treated the order in the first action as a final order and prosecuted an appeal to the Circuit Court of Appeals, where a final judgment was entered; and that the former order and judgment are res judicata and an absolute bar to the present cause of action.

 Counsel for the plaintiffs argues that res judicata is not applicable and that, in effect, no judicial determination was made by me in the first case as to the non-existence of the contract, which he now alleges does exist. The plaintiffs rely upon the case of Roadway Express v. Local 249 Teamsters Union, 330 F.2d 859, C.A. 3, 1966, where the plaintiff brought an action under § 301(a) of the National Labor Relations Act *fn1" for breach of an alleged labor agreement. The District Court concluded "as a matter of law" that the facts indicated no contract existed and granted the defendant's motion to dismiss. The Circuit Court reversed on appeal. In the Roadway case, the action was brought by the company against the Union, both parties to the alleged agreement. The issue as presented there was as to whether or not there was a legal contract between the parties. The depositions and statements of the defendant raised substantial issues of fact precluding the entry of summary judgment.

 Such is not the case here. The plaintiffs here seek to establish the continuation of the contract after its termination date of April 30, 1960, between the employer and the Union in order to reap certain benefits which would have accrued from the contract had its existence been projected beyond the termination date. From the pleadings in the original action and the affidavits of the defendant, it was clear, as a matter of law, that the contract between the company and the Union had expired on April 30, 1960. This was so because the Union had notified the company by letter on February 22, 1960 of that circumstance and the company acknowledged receipt of this information. Thus, there was an end to the contract.

 As for the question presented in the first action - and as re-presented here - to the effect that the affidavits filed raise a factual issue for a fact-finding body, I said at pages 9 and 10:

"The plaintiffs now contend that the affidavits so filed raise a factual issue for a fact-finding body. After careful examination of these affidavits and counter-affidavit of the parties, I cannot give any credibility or weight to the depositions contained in the counter-affidavit. This is so for a number of reasons. From the second affidavit of Pittsburgh Gage it was deposed that after the expiration of the agreement of April 30, 1960, the Union leaders and the Vice-President of Pittsburgh Gage were in negotiations until August 26, 1964. Second, the counter-affidavit does not indicate what 'common knowledge ' was or the circumstances which constituted such common knowledge that the agreement remained in full force and effect until the new contract was signed. Third, it does not appear that the deponent to the counter-affidavit had any factual knowledge of what was being negotiated, or otherwise what the facts were concerning the existence of a contract. And fourth, the phrase of the plaintiff in his counter-affidavit 'by its very terms' indicates no support in the agreement itself; for § 19 of Article 4 of the previously existing agreement provided as follows:
'If either party hereto desires to terminate or modify this Agreement on May 1, 1960, it shall notify the other party in writing of such desire at least sixty (60) days prior to the expiration date of the contract and shall otherwise comply with the terms and conditions of Section 8(d) of the Labor Management Relations Act of 1947.' Thus, we have the situation where the deponent in the counter-affidavit does not deny the existence of the letters noted in Pittsburgh Gage's first affidavit. The letters constituted notification by the parties that the contract would expire on April 30, 1960. The ...

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