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GRAHAM v. ACME MKTS.

April 17, 1969

Thomas Graham, Plaintiff
v.
Acme Markets, Inc., et al., Defendants


Body, District Judge.


The opinion of the court was delivered by: BODY

BODY, District Judge.

I. This case is before this Court after being remanded by the Court of Appeals. The facts of the case as found by the arbitrator, G. Allan Dash, Jr., in his "Opinion and Decision" are as follows:

 
"At approximately 8:00 P.M. on August 9, 1967 several female employees and one male employee of the Teamsters Health and Welfare Fund appeared with picket signs at the Distribution Center No. 4 of the above-named Company [defendant]. (Earlier that evening other female pickets had gone to the Company's Distribution Center No. 1) They appeared at both warehouses apparently seeking to bring pressure upon an official of Acme Markets, Inc., one of three Trustees of the noted Fund, to aid them in securing collective bargaining rights with the Fund and its Trustees through their representative, the Independent Union of Office Workers.
 
On August 10, 1967 the Company posted a notice to the effect that the 'illegal work stoppage ' of the prior night was being investigated, and that the Company reserved its right to take appropriate discipline, including dismissal, upon completion of the investigation.
 
On August 12, 1967 Steward Graham and the Union were notified by the Company of its proposed action of 'discharge for misconduct in re. illegal work stoppage Wednesday, August 9, 1967 . . . .'
 
On August 15, 1967, the Company notified Steward Graham, by letter, as follows:
 
'In compliance with the Collective Bargaining Agreement this is to give you formal written confirmation of your discharge for misconduct in connection with the illegal work stoppage on Wednesday, August 9, 1967. Such discharge being effective Tuesday, August 15, 1967.'
 
Under date of August 16, 1967 the Company posted a notice informing its employees that its investigation of the August 9 stoppage had been completed, and informing them, in addition, as follows:
 
'The Company's evidence and finding was presented to the Common Pleas Court of Philadelphia County which ruled on August 15, 1967 that Local 107 Business Agent Amoroso and Steward Thomas Graham were responsible for the illegal work stoppage which began Wednesday, August 9, 1967.'
 
On August 16, 1967 Steward Graham filed a written grievance reading:
 
'I am protesting the charges filed against me leading to my discharge. The Company, I feel, is discriminating against me, as there were men who had reported for work before I arrived at the WHSE, Aug. 9-1967 and saw the pickets and refused to cross the picket line and therefore went home. As of this improper discharge I am claiming all lost earnings from and including 8-14-67 and all damages incurred till I am reinstated.'
 
On August 18, 1967 the Union filed a protest with the Company against its discharge of the grievant and requested a meeting to discuss the action. The meeting was held in accordance with the Grievance Procedure (Article VIII). The issue was thereafter processed before the FELR Joint Board on September 7, 1967. When that Board was deadlocked, the issue was then processed to the undersigned Arbitrator, as provided in Article VIII, at an October 25, 1967 arbitration hearing. The Company's case was handled by M. Kalman Gitomer, Esq., and the Union's by F. Emmett Fitzpatrick, Jr., Esq. Present on behalf of and to represent Mr. John Greely, Trustee for Local 107, was Edward Davis, Esq.
 
Evidence, testimony and arguments were presented by the parties to support their respective positions. The Arbitrator has considered the entire record in arriving at his decision."

 The plaintiff sought a reversal of the arbitrator's decision by filing a complaint in equity in the Court of Common Pleas of Philadelphia County. Defendants, Acme and F.E.L.R., removed the action to the United States District Court and filed a motion to dismiss the complaint. This motion was granted by this Court on December 21, 1967. The Court stated:

 
" . . . the arbitrator acted within the scope of his authority in determining that plaintiff Graham's discharge was proper and for just cause . . . the arbitrator's decision and award on the merits of the case are not subject to judicial review."

 Thereafter, plaintiff filed a motion for reargument, based upon an amended complaint which averred that the arbitrator had ignored specific language in Article III, Section 2, of the Master Food Agreement which reads in part " . . . under no circumstances shall an Employer discriminate against a steward because of his activities as such." This was the basic change made in the original complaint. The plaintiff contended that the award by the arbitrator was at variance with the specific language of the contract.

 This Court thereupon wrote counsel on February 12, 1968:

 
"This letter is to confirm in writing that my bench decision to deny plaintiff Graham's Petition for Reargument in the above case was entered on the merits of the case. As I have explained by telephone to counsel for plaintiff and defendants, I do not feel that reargument could change my ...

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