The opinion of the court was delivered by: GREEN
On September 14, 1984, a hearing on plaintiff's motion for a preliminary injunction was held. Since the factual basis for permanent injunctive relief would not be changed by the addition of further evidence, trial on the merits will be advanced and consolidated with the aforementioned hearing pursuant to Rule 65(a) (2) Fed. R. Civ. P.
Hahnemann operates a medical college and teaching hospital in Philadelphia, Pennsylvania. District 1199C is a labor union representing certain of Hahnemann's employees. Among these are Hahnemann's dietary department employees who work 20 hours per week or more.
Until July of 1983, the hospital operated and managed its dietary department using its own staff. During this time there were two full time shifts and most of the employees in the bargaining unit worked full time hours. (35-40 hours/week).
After July of 1983, Hahnemann contracted with ARA food services to manage the dietary department. As a result of the ARA takeover of the dietary department, staffing changes with regard to that department's employees were made. Among these were the reduction of 11 full-time employees from 35 hours a week or more, to less than 20 hours/week thereby rendering them non-bargaining unit employees. Simultaneously, Hahnemann hired 46 new dietary employees, all of whom worked less than 20 hours per week, thereby significantly increasing the number of non-bargaining unit employees, while substantially reducing the number of bargaining unit employees.
After proceeding through steps one and two of the grievance procedure outlined in the cba, the union sought arbitration, the final step. District 1199C's grievance termed the hospital's action in reducing the number of hours of bargaining unit members, a layoff. It claimed that the "layoff" was in violation of Article IX of the cba which requires that in the event of layoffs, non-bargaining unit employees are to be laid off first. The union claimed further that Hahnemann violated the provisions of the recognition clause of the cba by eroding the bargaining unit work and creating non-bargaining unit personnel to do the work which existed. Finally, the union claimed that laid off employees who are now working less than 20 hours a week have been denied their right to have additional hours, constituting overtime, granted to them in accordance with the provisions encompassing overtime under Article XII of the cba.
Hahnemann countered that under Article XXXII of the cba, the management's rights provisions, it had the right to schedule the number of hours to be worked and it was merely exercising that right as justified by business necessity.
The parties proceeded to arbitration on the issues listed above. At the hearing before arbitrator Joan Weitzman they stipulated to a postponement of the arbitration while settlement of the matter was attempted. Failing settlement, Hahnemann has brought this action challenging the arbitrator's jurisdiction to decide the above listed issues.
Authority of Arbitrator. The arbitrator will make his findings and render his decision to resolve the disagreement. The arbitrator shall not have jurisdiction to add to, modify, vary, change or remove any terms of this Agreement or to determine that any provision of this Agreement establishes an implied limitation upon Hahnemann which is not herein specifically set forth. . . .
cba at 14. (Emphasis added.)
The hospital maintains further that because in the cba's management's rights provisions it is given certain sole rights among those the right to schedule the number of hours worked, which are not expressly abridged by a specific provision of the cba, that necessarily the defendants are seeking to have the arbitrator imply some limitation upon ...