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April 16, 1959


The opinion of the court was delivered by: WORTENDYKE

Plaintiff, Schacht Steel Construction, Inc. (company), is a member of an association of employers engaged in the steel fabrication industry known as Structural Steel & Ornamental Iron Association of New Jersey, Inc. (Association). On September 15, 1957, the Association entered into a collective bargaining agreement with the defendant, Shopmens Local Union No. 545 of the International Association of Bridge, Structural and Ornamental Iron Workers (Union). The contract was applicable to all production and maintenance employees of the members of the Association, and was in force during the dispute here in question.

Plaintiffs seek the following relief under the Labor-Management Relations Act, 1947 (Act), § 301, 61 Stat. 156, 29 U.S.C.A. § 185 (1952); judgments: (1) requiring the Union to specifically perform its obligations under the contract to arbitrate a dispute between the parties which arose on February 19, 1958 and culminated in Schacht's discharge of its employee, Rouse, a member of the Union, and the strike or work stoppage which ensued in the Schacht plant, and (2) for damages alleged to have been suffered by Schacht by reason of the work stoppage.

 The Union contends that the issue in dispute is not arbitrable under the terms of the contract. It therefore contends that since there was no violation of the contract by its refusal to arbitrate this issue, the contract is not specifically enforceable by this Court and that Schacht has no right to damages.

 The case was tried to the Court without a jury.

 Plaintiff correctly asserts that this Court has jurisdiction under § 301 of the Act. Textile Workers Union of America v. Lincoln Mills of Alabama, 1957, 353 U.S. 448, 77 S. Ct. 912, 1 L. Ed. 2d 972. The uncontroverted facts show further that plaintiff's business activities affected commerce within the meaning of § 301(b) of the Act. International Brotherhood of Electrical Workers, Local 501, A F of L v. National Labor Relations Board, 1951, 341 U.S. 694, 71 S. Ct. 954, 95 L. Ed. 1299.

 The questions presented involve a construction of the collective bargaining agreement and are as follows:

 2. If the dispute was arbitrable, which of the parties was responsible for the failure to arbitrate?

 3. Is the employer entitled to recover damages from the Union and, if so, what is the measure thereof?

 The contract provides that the Union is recognized as the exclusive representative of all the company's employees for the purpose of collective bargaining with respect to rates of pay, wages, hours and other conditions of employment. However, 'the management of the company's plant and the direction of its working forces, including, but not limited to, the right to establish new jobs, abolish or change existing jobs, increase or decrease the number of jobs, change materials, processes, products, equipment and operations,' are rights vested exclusively in the company. The company also has 'the exclusive right * * * to schedule and assign work * * * and to suspend * * * or discharge' employees for proper cause.

 Wage rates are set forth in the contract for enumerated job classifications. It is provided that if the company undertakes a work operation not covered by the enumerated classifications, such work operation shall be classified and minimum wage rates established therefor by mutual agreement between the company and the Union before such operations are started.

 A grievance procedure is prescribed for the settlement of dispute between the parties with final resort to arbitration if the dispute is not settled by the grievance procedure. Pending arbitration the matters in controversy are to be held in status quo, except in aggravated cases, in which event if the company discharges an employee for aggravated cause the question of aggravated cause is also to be submitted to arbitration.

 The contract contains a 'no strike' clause in which the Union agrees not to strike except upon refusal of the company to submit a controversy to arbitration.

 On January 2, 1958 a meeting was held of representatives of company and the Union for the purpose of establishing a wage rate for the operator of an automatic electric welding machine which had recently been purchased and installed by company. This type of machine was new in the company's plant and in the industry generally throughout New Jersey. It was agreed that the machine would be operated for a ten day trial period at a temporary rate for the operator of $ 2.77 per hour. It was contemplated that after the trial period had expired, another meeting would be held for the purpose of fixing a permanent rate for the operator. The next meeting was not held until February 10, 1958 when it was agreed to further extend the trial period for the machine to February 17. During the trial period the machine had been operated by a maintenance employee for the purpose of adjusting or eliminating certain operational defects. On February 19, 1958, the machine was ready for production. Accordingly, that morning company's plant superintendent, Lipton, directed Rouse, a machine shop tool operator, to act as operator of the machine. Rouse informed Lipton that he could not operate the machine without a helper, and exhibited a note from McHugh, the business agent of the Union, directing Rouse to refrain from commencing operating without a helper. No previous discussion of the necessity or propriety of a helper's participation in the operation is disclosed by the evidence. Lipton informed Rouse that no helper would be provided. McHugh confirmed his insistence upon the assignment of a helper by telephone to the shop steward. McHugh further ...

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