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January 22, 1959

CURTISS-WRIGHT CORPORATION, a corporation, Defendant

The opinion of the court was delivered by: HARTSHORNE

Plaintiff Union files its complaint here against defendant Company to compel defendant Company to carry out specifically what it claims to be the terms of the lengthy collective bargaining agreement between the two, including a broad grievance procedure terminating in arbitration. The specific relief asked by the Union is that this Court compel the Company to carry out what the Union alleges to be the terms of an arbitral award, which the Company claims it has carried out. Thereupon the defendant Company filed its verified application for a stay of such proceedings pending arbitration. It alleged that, while it had complied with the above arbitral award, the Union was dissatisfied with the Company's action in compliance with such award. Further, that this thus constituted a grievance to the Union, which therefore should in turn, according to the terms of the collective bargaining contract, be proceeded with by the Union, the dissatisfied party, under the grievance procedure which terminated in arbitration. Thus, the issue before this Court is whether the legality of the Company's action should be decided by this Court or by arbitration under the collective bargaining agreement between the parties to this suit, or as stated in the pretrial order, 'the question to be decided by the Court primarily is whether the Court or an arbitrator is to pass on the legality of the new Code 4142 sought to be set up by Curtiss-Wright after the award of the arbitrator Gellhorn.' The pretrial order continues:

'Thus, if the decision of this case is that this power lies in the Court, it will proceed to decide the legality of such new code. If, on the contrary, the decision is that same is a matter for arbitration, further proceedings herein will be stayed pending such arbitration * * * subject to further consideration by plaintiff (which did not occur) the parties agree that the Federal Arbitration Act controls, not the State act.' (Brackets this Court's.)

 This agreement as to the applicability of the Federal Arbitration Act, 9 U.S.C.A. § 1 et seq., in any event, would appear correct. Textile Workers Union of America v. Lincoln Mills, 1956, 353 U.S. 448, 77 S. Ct. 912, 1 L. Ed. 2d 972; Tenney Engineering, Inc. v. United Electrical R & M Workers, 3 Cir., 1953, 207 F.2d 450; *fn1" Signal-Stat Corp. v. Local 475, etc., 2 Cir., 1956, 235 F.2d 298. The question still remains whether this particular litigation should be stayed pending arbitration under the circumstances in this case.

 We turn to the facts, completely comprised in a stipulation of facts filed with the Court, with affidavits and exhibits incorporated. Since the pertinent facts are set forth, as above, substantially without dispute, leaving subject to dispute essentially only inferences therefrom and issues of law, this Court feels justified in acceding to this joint request of counsel to proceed upon the basis of such stipulation, despite Sims v. Greene, 3 Cir., 1947, 161 F.2d 87. The stipulated facts show that before the inception of the present collective bargaining agreement, itself stipulated in evidence, a job classification was established by the parties for Welder-Service, known as Code #4133, and rated for payment in labor grade 3 under the preceding collective bargaining agreement. The employees so classified were assigned to work in three departments of the Company's plant at Caldwell, New Jersey (Departments 038, 071 and 085). Later, because of an alleged change in certain methods of work, the Union claimed that such job code was not properly classified for rate of pay, and otherwise, and upon the failure of the parties to agree in that regard, the dispute was submitted to arbitration under the grievance procedure before this new code was made final, all in accordance with the collective bargaining agreement. The arbitrator selected was Professor Walter Gellhorn, of Columbia University School of Law, obviously an unusually capable arbitrator. In concluding his written report of April 24, 1957, upon the arbitration, the arbitrator states:

 'I should remark, however, that all my attention has been devoted to developments in Department 338 (038). During the hearing before me no suggestion was made that Welders-Service in other departments were doing any work that differed from what was being done when the Job Rating Standard for Code 4133 was agreed upon. Hence, while I do see merit in raising the point rating of the welders assigned to duty in Department 338 (038) so long as hot work is a major phase of the department's duties, I am not so clear in my mind that the whole classification deserves to be rerated.


 'By virtue of the authority vested in me by the parties' arbitration agreement dated May 25, 1956, and having duly heard and considered the parties' proofs and arguments, I hereby award as follows:

 'With respect to the occupation of Welder-Service, Code 4133, as now performed in Department 338 (038), the proper rating of Factor 4, Physical Effort, is in the 4th degree; and the proper rating of Factor 10, Working Conditions, is in the 5th degree. As to other factors under the Job Evaluation Plan, the ratings agreed upon on May 25, 1956, are confirmed. The changes in Factors 4 and 10 are warranted only because there has been a significant change in the work assigned to welders in Department 338 (038).'

 The Company promptly issued a new job rating, Standard Code 4142, in Department 038, which apparently implemented what it believed was the substance of the arbitrator's award.

 Prior to this the Union had done nothing about such award. But on the Union's receipt of notice of the issuance of this new job code, the Union disapproved this action of the Company in a letter dated May 29, 1957, in which it advised the Company that it considered this new code to be a 'legal nullity'. Thereupon the Company twice wrote the arbitrator asking him to advise if it had acted in conformity with his award. To this the arbitrator replied that he considered his power had ceased with the rendition of the award, and that he felt he could not further expound on his award unless requested to do so by both parties jointly. Upon receipt of this letter, the Company, on August 22, 1957, wrote the Union requesting it to join the Company in asking the arbitrator for a further ruling on the matter. By letter dated August 29, 1957, the Union refused to do so, saying:

 'You misunderstand the whole nature of the situation. Under our contract Professor Gellhorn's power in that arbitration was limited to deciding whether the code in question was sufficiently highly rated or whether it should receive additional points. He decided it should receive additional points. In his opinion, by way of dicta, he appeared to want the additional points to apply only in department 38 and not to other departments where the code is used. But it was beyond his power, either under the contract or under the submission, to divide the code between departments with more points and departments with fewer points. You therefore had no right to follow his dicta in violation, both of the submission and of the contract, by limiting the up rate to one department. Our re-submission of the matter to Professor Gellhorn might produce further light on what he meant, but it still cannot give you that right. Only a re-negotiation of the contract can give you that right.'

 Of course, the ultimate issue between the parties is the right of the Company to issue this new job code classification, in apparent accord with the arbitral award. But the sole issue now before this Court is whether the above issue on the merits is to be decided now by this Court, or by the grievance and arbitration procedure provided in the collective bargaining agreement. In paragraph 116 of this contract are the provisions for the classification of jobs. These require that if the Union disagrees with the Company's classification, same will constitute a 'grievance.' The grievance procedure to be followed by the parties, under such circumstances, is set forth in paragraphs 29 through 39, the last step being arbitration. Paragraph 29 provides:

 'All grievances and other disputes arising out of the terms of this agreement shall be dealt with in accordance with the ...

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