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BAKERY & CONFECTIONARY WORKERS INTL. UNION OF AMER

May 11, 1973

Bakery And Confectionary Workers International Union Of America, Local Union No. 12B, affiliated with Bakery and Confectionary Workers International Union of America, Plaintiff
v.
The Great Atlantic And Pacific Tea Company, Inc., Defendant


Weber, D.J.


The opinion of the court was delivered by: WEBER

Plaintiff's Complaint, as amended, claims monetary damages for termination of employment of its members caused by the closing of defendant's bakery in Pittsburgh, Pennsylvania, during the term of a collective bargaining agreement between the parties.

 The plaintiff originally sought an injunction to enjoin defendant from discontinuing its Pittsburgh bakery operation, which after notice and hearing, was denied. This amended Complaint followed.

 The suit was brought in this Court under Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. ยง 185. The Court has jurisdiction.

 Defendant now moves for Summary Judgment on the whole record.

 The plaintiff claims that the discontinuance of operations and the termination of employment of its members was in violation of the Collective Bargaining Agreement between the parties, executed May 3, 1970 effective from May 4, 1970 until May 5, 1973. The Pittsburgh bakery operation was terminated October 8, 1972 during the life of the Agreement.

 The plaintiff alleges that the discontinuance violated a provision of Article V of the Agreement which provides:

 
"(a) Beginning February 28, 1965, all employees hired on or before December 31, 1962 are guaranteed that they will be scheduled to work five days (40) hours each week. . . ."

 The plaintiff contends that this weekly guarantee language was intended to be a guarantee of employment until the expiration of the contract, and at the injunction hearing introduced testimony of the bargaining history to support that argument. We held that the only effect of the parol evidence produced, if it were to be considered at all, would be to compel the court to refuse the injunction because the right contended for by the plaintiff would not be clear and free from doubt.

 We will consider the plaintiff's argument for admission of parol or extrinsic evidence later, but first we must consider the effect of the language in the contract.

 It has been frequently decided that a collective bargaining agreement does not create an employer-employee relationship, nor does it guarantee continuation of such a relationship. Fraser v. Magic Chef-Food Giant Markets, Inc., 324 F.2d 853 (6th Cir. 1963); Hauser v. Farwell, Ozmun, Kirk & Co., 299 F. Supp. 387 (D. Minn. 1969). It has been so held in this District in a similar case involving the closing down of a bakery plant during the term of a collective bargaining agreement. See American Bakery & Con. Wkrs. Int. U. v. Liberty Baking Co., 242 F. Supp. 238 (W.D. Pa. 1965).

 
"A collective bargaining agreement, in ordinary usage and terminology, does not create an employer-employee relationship nor does it guarantee the continuance of one. Employees' rights under such a contract do not survive a discontinuance of business and a termination of operations. See Local Lodge 2040, I.A.M. v. Servel, Inc., 268 F.2d 692, C.A. 7, cert. den., 361 U.S. 884, 80 S. Ct. 155, 4 L. Ed. 2d 120; Oddie v. Ross Gear & Tool Co., 305 F.2d 143, C.A. 6, cert. den., 371 U.S. 941, 83 S. Ct. 318, 9 L. Ed. 2d 275; Elder v. New York Central R. Co., 152 F.2d 361, C.A. 6; United States Steel Corp. v. Nichols, 229 F.2d 396, 56 A.L.R. 2d 980, C.A. 6, cert. den., 351 U.S. 950, 76 S. Ct. 846, 100 L. Ed. 1474. " Frazer v. Magic Chef, supra, p. 856.

 There is no provision in the instant contract that limits the right of the defendant to discontinue the operation of its Pittsburgh bakery. Neither the Union Recognition Clause, Article I; nor the Wage Clause, Article III, reciting "for the duration of the agreement", nor the General Clause, Article XII (d) recital of "for the duration of the agreement"; nor the Termination Clause, Article XVIII can be read as having any such effect.

 
"The Expiration Clause of the Collective Bargaining Agreement does not limit the right of defendants to completely discontinue operations. Its only significance is that so long as an employer-employee relationship exists, the rights and obligations of the parties are governed by the Collective Bargaining Agreement until its expiration. Fraser v. Magic Chef-Food Giant ...

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