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BLOCK PONTIAC, INC. v. CANDANDO

October 11, 1967

Block Pontiac, Inc., Plaintiff
v.
Philip A. Candando et al., Defendants


Masterson, D.J.


The opinion of the court was delivered by: MASTERSON

Plaintiffs, Philip A. Candando and Automotive & Body Builders Local Union #724, hereinafter collectively referred to either as plaintiffs or the Union, filed a petition in the Philadelphia Court of Common Pleas on October 11, 1966, to set aside an arbitrator's award upholding the propriety of the discharge of plaintiff-employee, Candando. The defendant-employer, Block Pontiac, removed the case to this court under Title 28 U.S.C. § 1441. Plaintiffs now ask this court to remand the action to the state court on the theory that thee is no federal question involved and that therefore this court is without jurisdiction to hear it. The defendant opposes this motion and also moves to dismiss the plaintiffs' petition on the merits.

 The genesis of the current litigation, as indicated in the record before the Court, was a work-stoppage allegedly instigated by Candando on October 27, 1965. *fn1" The workstoppage lasted for several hours during the afternoon of October 27, and terminated on the morning of October 28, 1965. Defendant-employer considered the work-stoppage illegal under Article XII of the effective Collective-Bargaining Contract entered into by the respective parties March 2, 1964. *fn2" The employer accordingly conducted an investigation of the stoppage, concluding that Candando was primarily responsible. *fn3" In accordance with Article XII and Article III of the Collective Bargaining Agreement, the employer decided to discharge Candando. *fn4"

 Candando was notified of the company's action in a letter signed by M. Kalman Gitomer, attorney for the company, under date of November 12, 1965. *fn5" The letter initiated the grievance procedure established under Article XIII of the Collective Bargaining Agreement. *fn6" The union preliminarily objected to the procedure which the company had set in motion, but by the late Fall of 1965 acquiesced to the selection of Dr. John Perry Horlacher as the impartial arbitrator to hear the dispute. *fn7"

 The Union maintained its objections to the arbitrator's jurisdiction, and the latter heard arguments on that issue at a hearing conducted on January 7, 1966. The Union then presented four separate objections to the propriety of the arbitration proceeding:

 (a) Gitomer had neither real nor apparent authority to discharge any of the employees of Block, and therefore Candando had not been discharged and there was in effect no dispute before the arbitrator;

 (b) The employer, Block, could not initiate a gievance procedure under the terms of Article XIII, which, authorizes only " . . . one-way arbitration;"

 (c) If the Arbitrator were to proceed on the merits involved and sustain the Company, he would be discharging Candando, something he had no authority to do;

 (d) The question of whether a dispute is arbitrable or not is a matter for the courts, rather than the arbitrator to decide. *fn8"

 Arbitrator Horlacher considered the Union's arguments and, in a comprehensive written opinion, decided on March 1, 1966, that he had jurisdiction of the dispute. *fn9" No immediate appeal was taken from Dr. Horlacher's decision. Accordingly the arbitrator attempted to arrange a date satisfactory to both parties for a hearing on the merits of the dispute. When no mutually satisfactory date could be agreed upon, the arbitrator set September 8, 1966 for the hearing. *fn10" Despite having received notice of the time of the hearing the Union did not appear for the hearing. The absence of the Union was conceded at the oral argument before this court to be a conscious and advised refusal to participate further in the arbitration process. Dr. Horlacher proceedded to hear the case, and, in a written opinion dated September 21, 1966, decided it on the merits against the Union. *fn11"

 On October 11, 1966 the Union petitioned the Court of Common Pleas for the County of Philadelphia to strike and set aside the arbitrator's award and to sustain exceptions thereto. The petition was filed pursuant to the Pennsylvania Rule of Civil Procedure 255, et. seq. and under the Act of 1838, June 16, P.L. § 4, 5 P.S. § #4. The petitioner challenged the arbitrator's award by raising the same jurisdictional objections raised and decided in the arbitrator's opinion of March 2, 1966. A further jurisdictional objection was raised at this time. *fn12" The employer did not respond to this petition in the state court, but instead removed the action to this court under 28 U.S.C. § 1441, and thereafter moved to dismiss on the ground that plaintiffs' petition failed to state a claim upon which relief could be granted.

 This court finds no merit in the plaintiffs' contentions with respect to the motion to remand. Plaintiffs' original petition in the state court clearly falls within the scope of Title 29 U.S.C. § 185, § 301 of the Labor-Management Relations Act. The critical phrase in the statute is " . . . industry affecting commerce . . ." which is defined in Title 29 U.S.C. § 142:

 
(1) The terms "industry affecting commerce" means any industry or activity in commerce or in which a labor dispute would burden or obstruct commerce or tend to burden or obstruct commerce or the free flow of commerce.

 The courts consistently have interpreted the phrase broadly as reflecting Congress's intention to exercise its full power of regulation over interstate commerce. Pappas v. American Guild of Variety Artists, 125 F. Supp. 343 (D.C.N.D. Ill. 1954); Prospect Dairy, Inc. v. Dellwood Dairy Co., 237 F. Supp. 176 (D.C., N.D.N.Y., 1964); National Labor Relations Board v. Fainblatt, 306 U.S. 601, 607, 83 L. Ed. 1014, 59 S. Ct. 668 (1939). The Supreme ...


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