5. At the time of the merger approximately 71 drivers were employed by Hemingway at its Philadelphia terminal. Of these a large number had previously been transferred to Hemingway in its acquisition of Brooks Transportation Co. ("Brooks").
6. The acquisition of Novick by Hemingway became effective January 13, 1964. At that time 18 Novick drivers were transferred to the Philadelphia terminal of Hemingway.
7. Before the proposed transfer of the Novick drivers to the Hemingway terminal, a dispute arose concerning the relative seniority of the Novick drivers at the Hemingway terminal. The Novick drivers desired to keep their Novick seniority dates (date of first employment with Novick), while the Hemingway drivers sought to require the former Novick men to accept a new seniority date as of the first day they began employment at the Hemingway terminal. The solution the Novick drivers desired is called "dovetail", while the Hemingway drivers sought "endtail" or "foot of the list."
8. Both the Hemingway drivers and the Novick drivers took the seniority dispute to Local 107. The business agent of Local 107 who had the responsibility of representing both groups of drivers was Joseph Westenberg, to whom both groups of drivers turned.
9. The initial meeting between the stewards from Hemingway and Novick and agent Westenberg was held on December 27, 1963, at the office of the Union. The Novick drivers were represented by their steward, Joseph Morris, and the Hemingway drivers by their steward, Joseph Mautz. At that meeting, agent Westenberg decided that the two seniority lists would be separately maintained until the dispute over seniority was resolved.
10. On January 10, 1964, a second meeting was held at Local 107's offices. Present at this meeting were Westenberg, two other officers of the union and an attorney representing the union, Hemingway's district manager, three stewards from Hemingway (including Mautz) and two stewards from Novick (including Morris).
11. At this meeting, Hemingway's district manager stated that Novick had some outstanding unpaid bills but that it was not insolvent. Morris took a position in favor of dovetailing the two seniority lists, and the Hemingway stewards opposed him. Westenberg then suggested calling the Teamster International Headquarters in Washington, D.C., for their recommendation on the dispute. Westenberg spoke to James Harding, special representative of the General President of the International, James Hoffa. Westenberg told the parties then present that the International favored dovetailing the two lists. Westenberg then stated that the Hemingway stewards had the right to file a grievance objecting to the International's proposed solution, and that both he and Al Berman, another business agent of Local 107, would sign the grievance.
12. On January 14 or 15, agent Westenberg and Hemingway steward Mautz made a trip to Teamster Headquarters in Washington, D.C. Westenberg and Mautz visited James Harding, the same International representative who advised Westenberg by telephone on January 10 that the International favored dovetailing the Novick drivers. Mautz presented the Hemingway drivers' point of view to Harding in the presence of Westenberg.
13. Westenberg did not tell any of the former Novick drivers that he was making this trip to Washington. The former Novick drivers learned about the trip on or about February 3, 1964, after the Joint Area Committee decision.
14. The grievance procedure under the Master Agreement provides both for a Joint Local Committee and for a Joint Area Committee, each composed of equal union and management representation. The Joint Local Committee was omitted in the processing of this seniority dispute.
15. The Joint Area Committee is composed of representatives of the employer and of the six unions which are parties to the Master Agreement. The rules of the Joint Area Committee provide that no representative of the local union or the employer involved in the dispute can act as a committee member. This rule was observed.
16. The Joint Area Committee hearing to consider the seniority dispute was held in Philadelphia on January 20, 1964. William Fontaine, at that time a representative of the International, presided over the hearing.
17. The hearing was attended by agent Westenberg, several Hemingway stewards, and the Novick steward, Morris.
18. Morris received three days notice of the hearing from one of the Hemingway stewards, John O'Neill.
19. Westenberg supported the position of the Hemingway drivers and requested the Committee to place the former Novick drivers at the foot of the combined seniority list. He referred to the prior merger of Brooks into Hemingway, in which the Brooks drivers had been placed at the foot of the list, and pointed out the unfairness of dovetail to the ex-Brooks drivers.
20. Morris stated that the contract provisions provided for dovetail, and that though it was admittedly unfair in the case of ex-Brooks drivers, it was his opinion that dovetail was the proper resolution of the dispute.
21. On January 20, the Joint Area Committee unanimously decided that the former Novick drivers should go to the foot of the combined seniority lists. The decision was implemented on January 21, 1964.
22. The International Teamsters Union did not attempt to influence the outcome of the Joint Area Committee's decision, either on its own initiative or at the urging of representatives of Local 107.
23. Local 107 did not influence the outcome of the Joint Area Committee's decision of January 20, 1964, through contacts with the International Teamsters, and did not contact members of the Joint Area Committee outside that hearing.
The parties have agreed that the question for our decision is whether the Union breached its duty of fair representation in its handling of the seniority dispute which culminated in the decision of the Joint Area Committee on January 20, 1964. With that formulation of the issue we concur.
Under the terms of the Master Agreement, Article 5, Section 4(a), the defendant carriers were bound to apply the seniority rules adopted by the Central States Joint Area Committee. These rules provided for the application of dovetail to a merger, except that under Section 8 of Article 6 of those rules the parties to the merger and their employes' collective bargaining (agents) could agree to a different disposition of the problem. Section 8 of Article 6 also provided that the means for so agreeing to a different resolution of the seniority dispute was the Joint Grievance Procedure provided for in the Master Agreement. That Joint Grievance Procedure was followed in this case.
Whether this grievance procedure has taken the merits of the dispute out of judicial hands is a question raised by Article 7, Section 4(b), of the Master Agreement which provides:
"Where the Joint Area Committee by majority vote settles a dispute, such decision shall be final and binding on both parties with no further appeal."
The Supreme Court has held these area committee decisions to be final and binding when the parties so designate their "chosen instrument for the definitive settlement of grievances" under their collective bargaining agreement. General Drivers, Warehousemen and Helpers Local Union 89 v. Riss & Co., 372 U.S. 517, 519, 9 L. Ed. 2d 918, 83 S. Ct. 789 (1963). It is thus clear that the federal labor policy formulated by the Steelworker trilogy, United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 4 L. Ed. 2d 1403, 80 S. Ct. 1343 (1960); United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960), applies to the decision of the Joint Area Committee. The Third Circuit has held that the same court review accorded arbitration should be applied to the "final" decision of a committee as well. Bieski v. Eastern Automobile Forwarding Co., 396 F.2d 32, 37 (1968). That standard of judicial review
"should turn on the adequacy of that private decision under the contract in terms of the controversy presented." Id. at 37-38.