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GREGG-HARRIET SHIRT CO. v. UPPER SOUTH DEPT. OF TH

August 8, 1983

GREGG-HARRIET SHIRT CO., INC., et al.
v.
UPPER SOUTH DEPARTMENT OF THE INTERNATIONAL LADIES GARMENT WORKERS UNION



The opinion of the court was delivered by: GILES

 GILES, J.

 The plaintiff employers seek to vacate an arbitration award requiring them to make payments into a Union Fund for a category of employees termed "trial workers." The union defendant has filed a motion for summary judgment to affirm the award. For the following reasons, defendant's motion will be granted.

 I. BACKGROUND

 On March 16, 1981, plaintiffs executed a collective bargaining agreement with defendant which was to "extend and renew" the prior agreement "with certain modifications." In relevant part, the renewed agreement provides:

 
Article IV
 
Newly hired workers shall be deemed during their first thirteen (13) weeks of employment to be engaged for a trial period, during which they may be discharged without regard to cause. Thereafter they shall be deemed regular employees under this agreement.
 
Article XIV
 
The Employer shall pay weekly to the Union a total sum of 10 percent (10%) of its total weekly payroll . . . of all the regular nonsupervisory workers employed in the unit.

 (emphasis added).

 Defendant had claimed that under the above provisions trial workers were entitled to contributions by the employer for the first thirteen week period once they had attained the status of regular employees. Plaintiffs disputed this contention. Defendant then filed for arbitration. At the hearing held on October 22, 1982, the defendant produced a "Pre-Arbitration Settlement Agreement" executed by both parties five days prior to the signing of the renewed collective bargaining agreement. The settlement agreement provided that certain delinquent contributions owed by the employer to the Union Fund in the amount of $50,809.58, would be paid for the period beginning January 1, 1978 and ending June 30, 1980. Articles IV and IX of the settlement agreement also provided that the plaintiffs "shall keep current on all contractually required contributions" and that "except as modified herein the collective bargaining agreement shall remain in force." The defendant represented to the Arbitrator that the plaintiffs' failure to pay delinquent contributions into the Fund for trial workers was part of the delinquency which had accrued under the prior bargaining agreement and which was rectified by the settlement agreement. Plaintiffs did not deny this. The Arbitrator also received evidence from defendant that in 1978 the auditor of the Union Fund had begun to include the employee trial period in determining the plaintiffs' liability to the Fund.

 The Arbitrator agreed with the plaintiffs that the term "regular employee" in Articles Four and Fourteen of the renewed bargaining agreement, standing alone, did not indicate that employer payments to the Fund were to include trial workers. However, the Arbitrator accepted the defendant's uncontested representation regarding the purpose and scope of the settlement agreement and found it to be supported by language in the agreement. In particular, the Arbitrator relied upon the language " except as modified herein. . ." to conclude that the settlement agreement clarified the existing collective bargaining agreement and the parties' intentions regarding payments under the renewed agreement.

 This court must determine whether by any rational reading the arbitrator based his decision upon a proper construction of the ...


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