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INTERNATIONAL UNION

March 28, 1996

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICAN, UAW, and its LOCAL UNION NO. 787, Plaintiff
v.
TEXTRON LYCOMING RECIPROCATING ENGINE DIVISION, AVCO CORPORATION, a/k/a TEXTRON AVCO CORPORATION, Defendant


James F. McClure, Jr., United States District Judge


The opinion of the court was delivered by: MCCLURE

March 28, 1996

 BACKGROUND:

 Plaintiff International Union, United Automobile, Aerospace and Agricultural Implement Workers of American and its Local Union No. 787 (hereafter collectively, the union) bring this action under section 301 of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 185. This action was filed against Textron Lycoming Reciprocating Engine Division and Avco Corporation (hereafter Textron) on March 15, 1996.

 The union is challenging a proposed change in the health care plan available to Textron retirees. Coverage is currently provided by Blue Cross/Blue Shield of Northeastern Pennsylvania. Under the Blue Cross/Blue Shield plan currently in effect, retirees may seek medical treatment from a physician or hospital of their own choosing and seek reimbursement for the costs incurred, or in some cases, a percentage of the same, from Blue Cross/Blue Shield.

 Textron proposes to change the retirees' coverage to another plan also sponsored by Blue Cross/Blue Shield known as First Priority 65 which operates as a health maintenance organization or HMO. All retirees and their dependents who are Medicare eligible (Parts A or B) and who reside in Lycoming, Luzerne or Lackawanna Counties at least nine months of each year are required to switch to the new plan effective April 1, 1996.

 Under First Priority 65, plan participants would be required to choose a primary care physician who is a member of its network of care providers and utilize that physician's services for their medical needs. Referrals to a specialist within the network of First Priority physicians and hospitals would be made by and through the participant's primary care physician. Participants retain the option of going to a physician of their own choosing outside the network, but would not be reimbursed for any costs incurred in doing so.

 Through the union, Textron retirees have brought this action seeking to bar implementation of the proposed change in Blue Cross/Blue Shield plans. The union seeks a preliminary injunction barring the proposed change until the matter can be arbitrated to a final decision. The union filed a grievance challenging the proposed change in plans as a violation of the collective bargaining agreement currently in effect. The union's grievance was denied by Textron, and arbitration of that issue is now being pursued.

 Textron challenges the union's right to bring this action on behalf of retirees or to obtain the relief sought on legal as well as factual grounds. Textron asserts that: 1) the union lacks standing to bring this action on behalf of retirees, whom it no longer represents as a collective bargaining agent; 2) any injunction issued by this court granting the relief sought by plaintiff would violate the Norris-LaGuardia Act (NLA), 29 U.S.C. §§ 101-115; and 3) plaintiff has not established the prerequisites necessary to obtain a preliminary injunction.

 A hearing on plaintiff's request for a preliminary injunction was held on March 25, 1996. Based on the evidence of record and the parties' submissions, the court finds that: 1) the union has standing to pursue the claims alleged on behalf of non-salaried Textron retirees and their dependents affected by the proposed change to First Priority 65; 2) this court has authority under LMRA to issue injunctive relief; and 3) the union is not entitled to the injunctive relief which it seeks. An order will be issued directing that the dispute between the parties be submitted to binding arbitration.

 DISCUSSION

 Standing

 Textron challenges the union's standing to represent the interests of retirees in this matter. The union concedes that it does not have standing to represent one segment of the retirees affected by the proposed change in carriers. It concedes that it has no standing to represent the interests of salaried employees. Salaried employees never belonged to the union.

 Plaintiff asserts that its right to bring an action of this nature to enforce rights held by retirees under a collective bargaining agreement was recognized by the United States Supreme Court in Allied Chemical & Alkali Workers of American v. Pittsburgh Plate Glass Company, 404 U.S. 157 n. 20, 30 L. Ed. 2d 341, 92 S. Ct. 383 (1971). We disagree with plaintiff's interpretation of Allied. Plaintiff's argument misconstrues the Court's statement and ignores the preceding paragraph which states:

 
Since retirees are not members of the bargaining unit, the bargaining agent is under no statutory duty to represent them in negotiating with the employer. Nothing in Railroad Trainmen v. Howard, 343 U.S. 768...(1952), is to the contrary....[Howard] obviously does not require a union affirmatively to represent nonbargaining unit members or to take into account their interests in making bona fide economic decisions in behalf of those whom it does represent.
 
This does not mean that when a union bargains for retirees--which nothing in this opinion precludes if the employer agrees--the retirees are without protection. Under established contract principles, vested retirement rights may not be altered without the pensioner's consent....

 Id. Only with this preface does the Court then state: "The retiree, moreover, would have a federal remedy under § 301 of the Labor Management Relations Act for breach of contract if his benefits were unilaterally changed." We do not give this sentence the same weight or import as the union does. What the Court states, read literally, is that the retiree, not the union, as plaintiff contends, has a federal remedy under section 301.

 Were this the only support for plaintiff's assertion of standing, we would be hard pressed to rule in its favor on this point. Plaintiff, however, also directs the court's attention to Third Circuit precedent which supports its argument more directly.

 In United Steelworkers of America v. Canron, Inc., 580 F.2d 77 (3d Cir. 1978), the Third Circuit rejected the contention that the United Steelworkers of America, the union which filed the action, did not have standing to sue on behalf of retirees "because a union is precluded from representing 'any individual who has ceased to work without expectation of further employment.'" Id. at 80. After discussing the Supreme Court's holding in Allied Chemical, the court held that the union had "standing to represent the retirees in seeking arbitration under its labor contract with Canron." Id. at 81.

 Although defendant argues that Canron is distinguishable on its facts, we are not convinced. Here, the union negotiated for and obtained for Textron retirees the medical benefits package currently at issue. It would seem only logical under Canron that the union would then have standing to sue to compel arbitration of an alleged breach of that agreement and to seek injunctive relief barring Textron from altering the status quo until the issue can be arbitrated. *fn1"

 Norris-LaGuardia Act

 Textron argues that the Norris-LaGuardia Act (NLA), 29 U.S.C. §§ 101-115, prohibits this court from issuing an injunction granting the relief sought by the union. The Norris-LaGuardia Act contains a broad prohibition against the issuance of injunctions by federal courts in labor disputes to prevent the courts from becoming embroiled in or "interfering with economic struggles between employees and their employers." Nursing Home & Hospital Union No. 434 v. Sky Vue Terrace, Inc., 759 F.2d 1094, 1098 (3d Cir. 1985).

 Section 1 of the NLA provides:

 
No court of the United States, as defined in this chapter, shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this chapter; nor shall any such restraining order or temporary or permanent injunction be issued contrary to the public policy declared in this chapter.

 29 U.S.C. § 101.

 Section 4(c) of the NLA provides:

 
No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute...from doing, whether singly or in concert, any of the following acts:
 
* * *
 
(c) Paying or giving to, or withholding from, any person participating or interested in such labor dispute, any strike or unemployment benefits or insurance, or other moneys or things of value...

 29 U.S.C. § 104.

 Citing the Third Circuit's decision in United Steelworkers of America v. Fort Pitt Steel Casting, 598 F.2d 1273, 1278 (3d Cir. 1979), the union argues that the relief sought here falls within the exception to the NLA carved out by the Supreme Court in Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 26 L. Ed. 2d 199, 90 S. Ct. 1583 (1970). *fn2" Under Boys Markets, courts may consider the propriety of an injunction if necessary to preserve the integrity of the arbitral process. Textron argues that the Boys Markets exception does not apply here.

 The Third Circuit endorsed a three-part test in Fort Pitt for determining whether the NLA precludes issuance of an injunction. In making that determination, federal courts should consider: 1) "whether the underlying dispute is subject to mandatory arbitration;" 2) "whether the employer, rather than seeking arbitration of his grievance, is 'interfering with and frustrating the arbitral processes. . .which the parties had chosen;" and 3) whether an injunction would be appropriate 'under ordinary principles of equity.'" Id. at 1278-79. See also: Nursing Home, 759 F.2d at 1097.

 Arbitrability of the underlying dispute

 "A party cannot be compelled to submit a dispute to arbitration unless he has contractually agreed to do so." International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Exide Corporation, 688 F. Supp. 174 (E.D.Pa. 1988), citing A.T. & T. Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 89 L. Ed. 2d 648, 106 S. Ct. 1415 (1986); Morristown Daily Record v. Graphic Communications Union Local 8N, 832 F.2d 31, 33 (3d Cir. 1987); and E.M. Diagnostic v. Local 169, 812 F.2d 91, 94 (3d Cir. 1987).

 Whether a party has agreed "to arbitrate is a matter of contract construction and whether a dispute is arbitrable is a question of law for the court." Morristown Daily Record, 832 F.2d at 33. See also: Nursing Home, 759 F.2d at 1097.

 The United States Supreme Court announced the standard in a section 301 action for deciding the parties' rights and obligations to arbitrate disputes under a collective bargaining agreement in United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 4 L. Ed. 2d 1403, 80 S. Ct. 1343 (1960), stating:

 
The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract....The moving party should not be deprived of the ...

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