The opinion of the court was delivered by: HIGGINBOTHAM
These consolidated cases come before the Court on cross-motions for summary judgment. In Civil Action No. 74-2565, the Federation of Telephone Workers of Pennsylvania ("the Union") is the moving party, seeking enforcement of an arbitrator's award against the Bell Telephone Company of Pennsylvania ("the Company"). The Company is the moving party in Civil Action No. 74-2584, and seeks to have the same arbitration award set aside. The Company has also cross-moved for summary judgment in Civil Action No. 74-2565. The same facts are material in both cases, they are not in dispute, and both parties concede that the cases are ripe for summary judgment. After careful consideration of those material facts and of the briefs and memoranda submitted by the parties, I have concluded that neither is entitled to the full relief they request. Thus, for reasons that will hereinafter appear, their respective motions for summary judgment will be granted in part and denied in part.
The Union and the Company were parties to a collective bargaining agreement dated May 17, 1943, as last amended July 28, 1971 (hereinafter "Agreement").
The Agreement provided a grievance and arbitration procedure for the resolution of disputes between the parties. That procedure culminated in the submission of unresolved disputes to an impartial arbitrator selected under the auspices of the American Arbitration Association. Arbitration of disputes, however, was specifically limited to matters made subject to arbitration by the provisions of the Agreement. Agreement, § 13.01. The Agreement expressly excluded disputes about the terms of the promotions article, Article 22, from arbitration. Agreement, § 22.04.
On November 15, 1972, the Company, in response to objections by the Equal Employment Opportunity Commission ("EEOC") and other federal agencies to its promotion practices, implemented its Upward Mobility Transfer Plan ("UMTP"). The plan formalized promotion procedures and special selection procedures for the placement of certain employees in job classifications where they had previously been underutilized. By a letter dated November 29, 1972, the Union demanded that the Company's implementation of the UMTP be submitted to arbitration.
On January 18, 1973, this Court approved a Consent Decree in a suit, Civil Action No. 73-149, brought by the EEOC and other agencies of the federal government, against the American Telephone and Telegraph Company ("AT&T") and the operating companies of the Bell System, including Bell of Pennsylvania (the Company in the instant actions). The suit had charged AT&T and its operating companies with employment discrimination against women and minorities. The Consent Decree required the companies of the Bell system to develop affirmative action programs for the employment of women and minorities and to establish a variety other procedures related to the employment of women and minorities. These requirements were designed to insure the compliance of Bell system companies with applicable federal law, including the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Fair Labor Standards Act of 1938, as amended, the Equal Pay Act, 29 U.S.C. § 201 et seq., and Executive Order No. 11246, as amended, Revised Order No. 4, 29 C.F.R. §§ 60-2.1 et seq.3
Part A, § I of the Decree states that AT&T's Model Upgrading and Transfer Plan, incorporated into the Decree as an Appendix, is consistent with Revised Order No. 4 and is a "bona fide seniority or merit system" under § 703(h) of Title VII of the Civil Rights Act of 1964. It further states that the adoption and implementation of the plan by the Bell System would constitute compliance with the requirements of Revised Order No. 4 and Title VII. The Company's UMTP in the instant case is patterned after that model plan and is in compliance with the Decree.
In Part B, § II, para. D, the Decree states that it modifies existing Bell system collective bargaining agreements only to the extent required by federal law, and provides for negotiation, by Bell system Companies and the collective bargaining representatives of their employees, of alternatives to its own provisions, so long as the alternatives also comply with federal law.
On July 12, 1973, as part of its original November 29, 1972 case, the Union submitted to arbitration the grievances of eleven employees. The latter claimed that the imposition of the UMTP had either delayed their promotion or denied it altogether.
In a letter dated August 3, 1973, the Company stated its position on the demand for arbitration. It disclaimed any violations of the Agreement and denied the authority of an arbitration board to review its UMTP. While it was willing to present that position to an arbitration board, it said that such a presentation was not a waiver of its objections to the board's authority and jurisdiction over the UMTP. It expressly reserved its right to take legal action in other appropriate forums.
Arbitrator Lewis Gill was selected as impartial chairman of the arbitration board. Arbitration hearings were conducted before him on October 3, 1973, December 10, 1973 and January 10, 1974. On July 22, 1974, Arbitrator Gill rendered an award requiring the Company to make certain changes in its UMTP,
and on September 16, 1974, he issued an opinion stating his reasons for the July 22 award.
In its complaint in No. 74-2565, the Union alleges that the Company has failed to comply with the arbitrator's award in six different respects.
In its complaint in No. 74-2584, the Company alleges that Items 1 through 5 in the award require violations of the Consent Decree, that Items 2 through 5 are based on a nonarbitrable provision of the Agreement, and that Item 1 is based on an impermissible addition to the Agreement by the arbitrator. In each of these five items, the ...