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INTERNATIONAL FEDN. OF PROFESSIONAL & TECH. ENGRS.

October 31, 1978

INTERNATIONAL FEDERATION OF PROFESSIONAL & TECHNICAL ENGINEERS, LOCAL 241
v.
RCA CORPORATION



The opinion of the court was delivered by: NEWCOMER

MEMORANDUM AND ORDER

 Both the Union and the defendant RCA Corporation have moved for summary judgment. The Union seeks vacation of the arbitrator's award and judgment on the merits of the original grievance, and RCA asks the Court to uphold the arbitrator's decision. For the reasons set forth below RCA's motion will be granted and the Union's motion will be denied.

 There are no material facts in dispute. In 1973 and early 1974 RCA transferred ten employees from its Moorestown, New Jersey plant to its Camden, New Jersey plant at a time when there were five employees laid off or on downgrade status at Moorestown and another five laid off or downgraded at Camden. The Union objected to RCA's action and filed a grievance on behalf of the five Camden employees who were not recalled or upgraded. For some reason, perhaps oversight, the Union did not grieve on behalf of the five Moorestown employees, and the arbitrator's award, rendered by Arbitrator Arnold M. Zack on February 19, 1975, was shaped accordingly:

 
"The Company did violate the parties' agreement in loaning design and drafting personnel from the Moorestown plant to the Camden plant when the latter plant had such employees . . . on layoff or downgrade. Those Camden employees who were affected by the company's action shall be reimbursed for earnings lost retroactive to the date of the grievance." (emphasis supplied)

 The Union sought for about six months to reopen the grievance to include the five Moorestown employees. It argued in various proceedings that the Zack award did apply to the five Moorestown employees, but its efforts were unsuccessful. Finally, on October 23, 1975, the Union filed grievance No. 117966 on behalf of these five employees. That grievance was carried to arbitration before Arbitrator Lewis M. Gill, and it is the Gill award which is the subject of this lawsuit.

 Grievance 117966 was worded as follows:

 
"The Company has violated the General and Supplementary agreement by not paying Misters Clease, Smigiel, Ballilana, Bauer and Lienbach, the financial compensation Due them by the arbitrators decision in arbitration case no. 14 30 0221 74 M/J (the Zack award). The Union demands that these people be paid immediately."

 Arbitrator Gill held a hearing on the grievance on August 31, 1977, and rendered a decision in favor of RCA on December 12, 1977.

 Arbitrator Gill's decision was narrow in scope. He ruled only that the Zack award did not establish the rights of the five Moorestown employees to compensation for RCA's actions, specifically declining to reach the merits of the employees' Complaint (as opposed to their grievance). In other words, he refused to address the question of whether the Moorestown employees' contractual rights were violated by RCA.

 The Union and RCA do not agree on what questions were submitted to Arbitrator Gill. The Union argues that four questions were submitted at the hearing and that one of those questions was whether the five Moorestown employees were entitled to compensation in light of the precedent set by the Zack award. RCA defines the submission much more narrowly, arguing that the only issue submitted was that set forth in the written grievance.

 Arbitrator Gill attempted at the hearing to summarize the issues presented for decision. After discussing two, or perhaps three, preliminary questions to be decided, Arbitrator Gill said that "there would be an issue, I gather, of whether this grievance should be upheld on its merits in light of what was said by both Arbitrator Zack and Knowlton." *fn1" (Arbitrator's Opinion, p. 5.) Union counsel then distinguished this issue from the issue of whether the employees were entitled to payment under the Zack award On its face, and Arbitrator Gill apparently agreed to the distinction.

 Arbitrator Gill acknowledged in his opinion that his framing of the issue at the hearing could be read "as suggesting the broader issue posed by Union counsel" (Arbitrator's Opinion, p. 10), but looked to the Intent of the parties and concluded that "Company counsel did not understand himself to be consenting to any broadening of the issue, nor did I intend to broaden it." Id.

 The Court does not read the submission so narrowly. In fact, from the limited evidence available in the moving papers it appears that the Union's interpretation of the submission is substantially correct. Counsel for RCA did not object in any way to the framing of the question in terms of "whether this grievance should be upheld on its merits in light of what was said by both arbitrator Zack and Knowlton." It must have been clear to everyone that the written grievance made no reference to the Knowlton decision, and that the Knowlton decision could only affect the Merits of the ...


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