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HOTEL & RESTAURANT EMPLES. ALLIANCE

April 26, 1974

Hotel And Restaurant Employee's Alliance, Local No. 237, Of the Hotel And Restaurant Employee's International Union And Bartenders International League Of America, AFL-CIO, et al., Plaintiffs
v.
Allegheny Hotel Co. dba Pick Roosevelt Hotel, et al., Defendants


Weber, D.J.


The opinion of the court was delivered by: WEBER

These two consolidated actions present common questions of fact and law arising out of a Collective Bargaining Agreement. Jurisdiction is founded on 29 U.S.C. 185.

 In Civil Action No. 72-728 the plaintiffs are labor unions and trustees of their insurance, pension and welfare funds (hereinafter plaintiff Unions) which bring an action against the defendant hotel corporations (hereinafter defendant Hotel) based on a claim that the termination of operations during the effective period of the Collective Bargaining Agreement represents a breach of that agreement with respect to the right of the employees to be continuously employed during the life of the agreement. To this complaint the defendant Hotel has filed an Answer and a Counter-Claim which asks the court to construe the legal obligations of the parties under the agreement in a declaratory judgment.

 The defendant Hotel has moved for Summary Judgment and both parties have submitted evidentiary materials and briefs to the court on this issue.

 Both motions have been briefed and argued together. They will be individually considered herein.

 I.

 THE GUARANTEE OF CONTINUOUS EMPLOYMENT ISSUE.

 In Civil Action No. 72-728 the plaintiff Unions originally contended that the Collective Bargaining Agreement constituted a guarantee of employment during the term of the agreement. There is no specific language in the contract which could be construed as such a guarantee and after earlier stages of proceedings in this case that line of argument was not pressed in view of the well-established doctrine that a collective bargaining agreement is not a guarantee of employment during its term, but is solely an agreement as to the terms and conditions under which such employment relationship will be conducted. See J. I. Case Co. v. Labor Board, 321 U.S. 332, 64 S. Ct. 576, 88 L. Ed. 762; Fraser v. Magic-Chef Food Giant Markets Inc., 324 F.2d 853; American Bakery & Con. Wkrs. Int. Union v. Liberty Baking Co., 242 F. Supp. 238; and Bakery & Confectionary Wkrs. et al. v. Great Atlantic & Pacific Tea Co. Inc., 357 F. Supp. 1322, affd. by Judgment Order, 491 F.2d 748.

 After the filing of defendant Hotel's Motion for Summary Judgment in the above case the plaintiff Unions were granted leave to amend their Complaint to allege the existence of an established "past practice" existing in the hotel industry in Pittsburgh, Pennsylvania, which required Pittsburgh hotel owners to remain open and continuously engage in business for the entire term of a collective bargaining agreement. The basis of plaintiff Unions' Amendment was the claim that the alleged "past practices" were incorporated into the Collective Bargaining Agreement as follows:

 
"ARTICLE 6
 
PRIVILEGES
 
This Agreement shall not be used to reduce wages where the wages paid to an employee before this Agreement was executed are higher than the wages set out in the attached schedule of minimum wages; nor shall this Agreement serve to deprive employees of any privileges enjoyed before this Agreement was executed nor shall the employees be deprived of any privileges established as a result of past practices prevailing in the hotel industry of Pittsburgh, Pennsylvania wherein such hotels are under Union contract."

 In support of its amended claim the plaintiff Unions have filed a number of affidavits purporting to show a practice in the hotel industry in Pittsburgh.

 With respect to the consideration of affidavits in support of or in opposition of a motion for summary judgment we must consider the restrictions of Fed R. Civ. P. 56.

 
Summary Judgment.
 
(e) Form of Affidavits; Further Testimony; Defense Required.
 
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein . . .."

 The affidavits filed by the plaintiff Unions are not sufficient under Fed. R. Civ. P. 56(e) to create a genuine issue of material fact as to a "past practice" in the hotel industry in Pittsburgh obliging employers to continue operations during the entire term of a collective bargaining agreement.

 The affidavits submitted by plaintiff Unions in opposition to the motion for summary judgment fall into certain groups. The largest group consists of the affidavits of Walters, Johnston, Baldwin, Rossa and Mitchell, Union members who were part of the team that negotiated on behalf of the Union for the Collective Bargaining Agreement concluded between the parties for the period October 1, 1970 to September 30, 1973. The language of all of these affidavits is substantially the same. They recite that "the company clearly understood", "it was mutually understood", or "it was the understanding of all parties". They generally recite "To the best of my knowledge all hotel and restaurant employers in the Pittsburgh area who signed contracts with Local 237 undertook the obligation to remain in business until the expiration of the expressed time period covered by the terms of the Agreement . . .."

 The affidavits of Kern, Lipsitz, Benyon, Tantangelo and Prince form another group. These recite circumstances surrounding the closing down or sale of hotels or restaurants in Pittsburgh during the pendency or at the termination of ...


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