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TEAMSTERS' STEEL HAULERS LOCAL UNION NO. 800 v. LA

March 28, 1979

TEAMSTERS' STEEL HAULERS LOCAL UNION NO. 800, Affiliated with the International Brotherhood of Teamsters, Plaintiff,
v.
The LAKESHORE MOTOR FREIGHT CO., Defendant. TEAMSTERS' STEEL HAULERS LOCAL UNION NO. 800, Affiliated with the International Brotherhood of Teamsters, Plaintiff, v. ARTIM TRANSPORTATION SYSTEM, INC., Interstate Motor Freight Systems, Sentle Trucking Corp., J. Miller Express, Inc., Nick Strimbu, Inc., the Youngstown Cartage Company, John F. Scott Co., Al Zeffiro Transfer and Storage, Inc., Defendants



The opinion of the court was delivered by: TEITELBAUM

MEMORANDUM OPINION AND ORDER

 Plaintiff filed grievances against defendants Strimbu, Interstate Systems, and Zeffiro on or about August 26, 1975 challenging the right of defendants to exclude the 3.09 percent fuel surcharge from the calculation of gross revenue. On or about October 9, 1975 the grievances were decided in favor of the defendant companies by the Western Pennsylvania Teamsters & Employers Joint Area Committee (hereafter referred to as "WPJAC"). *fn1" Shortly thereafter, on approximately May 5, 1976, a similar grievance was filed by plaintiff against defendant Lakeshore Motor Freight. The Lakeshore grievance was unable to be resolved through the grievance procedure and culminated in a deadlock at the National Grievance Committee on September 22, 1976. The remaining defendants, Sentle Trucking, J. Miller Express, and John F. Scott, were the subject of grievances filed against all defendants on or about December 28, 1976. To date, no action has been taken on the December 28, 1976 grievances.

 Dissatisfied with the attempts at resolution of the fuel surcharge problem via intra union procedures, plaintiff seeks to have this Court order the defendants to remit the deductions that they allegedly have been and are improperly deducting from the pay of drivers represented by the Union. Plaintiff further requests an injunction directing the defendant carriers to cease from making any further 3.09 percent deductions from gross revenue. Defendants Interstate Systems, Sentle, Strimbu, Zeffiro and Lakeshore, in addition to opposing plaintiff's request for relief in the case sub judice as have all defendants, seek attorney's fees and punitive damages through a counterclaim. The counterclaim contends that plaintiff is pursuing the instant action in bad faith inasmuch as the fuel surcharge problem now being litigated has been previously decided by the WPJAC in favor of the defendants. All of the aforementioned defendants have now moved for summary judgment and consequent dismissal of plaintiff's actions.

 STRIMBU, INTERSTATE SYSTEMS, AND ZEFFIRO

 The motion for summary judgment on behalf of defendants Strimbu, Interstate Systems, and Zeffiro is laid upon a simple foundation. These defendants contend that the instant lawsuit is barred by the decision of the WPJAC in the Strimbu case which also acted as a favorable disposition of the grievances filed against defendants Interstate Systems and Zeffiro. The WPJAC held in the Strimbu case that:

 
". . . the Company will deduct 3.09% from the gross revenue and pay the company and fleet owner driver 26% of the balance."

 The committee having concluded that deduction of the fuel surcharge from gross revenue prior to paying the drivers is permissible; it is contended that the same matter is barred from redetermination by the Agreement and Rider which provides:

 
"Where the Joint Area Committee, by a majority vote, settles a dispute, no appeal may be taken. Such a decision will be final and binding on both parties with no further appeal."

  Whether or not the Agreement and Rider precludes this Court's review of the Strimbu decision depends upon whether the WPJAC determination draws its "essence" from the parties collective bargaining agreement. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960). For the reasons which follow, this Court concludes the WPJAC decision of October 9, 1975 does not draw its essence from the Agreement and Rider and therefore the instant action, insofar as it is maintained against defendants Strimbu, Interstate Systems, and Zeffiro, is not foreclosed.

 The calculation of wages in the Agreement and Rider is based upon a percentage of gross revenue:

 
"Where a percentage method of pay is used, all drivers shall receive twenty-six percent (26%) of gross revenue as wages. . . . "

 The contract percentage for compensation of drivers of leased or company-owned equipment is based upon gross revenue. If gross revenue increases, drivers of leased or company-owned equipment get their percentage of the increased revenue. If gross revenue decreases, drivers of leased or company-owned equipment get only their percentage of the decreased gross revenue. In spite of the apparent unambiguous intention that gross revenue be the benchmark by which wages are calculated, the WPJAC ...


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