The opinion of the court was delivered by: KNOX
There is presently before the court a motion filed by the plaintiff asking that the defendant employer be held in civil contempt for violation of previous orders of this court as affirmed by the United States Court of Appeals for the Third Circuit ordering enforcement of an award of an arbitrator determining a grievance with respect to alleged improper layoff of employee John Grabiak.
The controversy with respect to layoff of Grabiak as a draftsman in the employer's Greensburg, Pennsylvania plant was a subject of a grievance filed upon which hearings were held and award entered October 16, 1975 by arbitrator Thomas J. McDermott. The arbitrator sustained the position of the plaintiff union and entered an award as follows:
"It is my award that the company was in violation of Section 13.2 when on April 25, 1975, it laid off the senior Draftsman, Mr. Grabiak, and it retained the junior one, Mr. Wright. Mr. Grabiak shall be reinstated to the job of Draftsman with his full seniority and he shall be reimbursed for all wages and benefits lost at regular rates less any compensation received or earned during the period from April 25, 1975, to the date of his reinstatement."
The company failed to comply with this award and the plaintiff union filed a motion to enforce the award and the company filed a petition to vacate the same. The cases were assigned to the late Judge Gourley of this court who on August 5, 1976, granted the motion of the plaintiff union for summary judgment and further provided:
"IT IS FURTHER ORDERED AND DECREED that the petition by the Overly Manufacturing Company to vacate same award hereinabove referred to is dismissed."
The company thereupon appealed and the Court of Appeals on May 9, 1977 entered a judgment order affirming the judgment of the district court. Certificate in lieu of mandate was issued June 1, 1977.
The company still failed to comply and on June 27, 1977, the union filed a motion for adjudication of civil contempt. The matter was set down for argument before this court and after argument the court entered an evidentiary hearing with respect to the matters in dispute which hearing was held September 5, 1977.
It appeared that there are two matters in controversy with respect to enforcement of the award: (1) the amount of back pay due Grabiak under the terms of the award and (2) Grabiak's right to reinstatement in view of the company's claim as a result of change in its business operations his job no longer exists at the Greensburg plant, that the operations which he formerly performed have been transferred to their plant in California, that he has been offered a job as draftsman at Glendale, California and has refused to accept the same insisting upon his right to be reinstated as a draftsman at the Greensburg, Pennsylvania plant.
On September 15, 1977, following the evidentiary hearing the court ordered the defendant to compute and file within 7 days a statement of the amount due Grabiak to and including the date of the decision of the United States Court of Appeals for the Third Circuit on May 9, 1977, which claim for back pay was to be referred to a magistrate.
The employer did file a statement of its position as to the amount due under the back pay aspect of the award and it appeared thereupon that there was a dispute as to the amounts due and the amounts to be allowed as credit for earnings received by Grabiak and other employment. Therefore, on September 29, 1977, the matter of determination of back pay was referred to a magistrate to determine the amount of judgment to be entered against the defendant if any. The magistrate was directed to compute the amount due to June 1, 1977, the date of receipt of mandate from the United States Court of Appeals and secondly to the date of the magistrate's report. It was further ordered that the question of reinstatement was taken under advisement by the court considering the company's claim of impossibility of compliance and changed circumstances as justifying failure to comply with the award and the orders of the courts.
From the testimony taken, it appears that Grabiak had been laid off April 25, 1975, which layoff was held to be improper by the award of the arbitrator. On July 13, 1977, following the affirmance by the Court of Appeals, Grabiak was offered a job as welder in the maintenance department, since the company took the position that there was no work available for him as a draftsman or detailman. It appears that as a welder he is earning $5.10 to $5.50 per hour or approximately $850 per month. As a draftsman he was earning $780. While Grabiak demanded reinstatement in his old job of draftsman, ...