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May 5, 1960


The opinion of the court was delivered by: MADDEN

This action is brought in this Court under provisions of § 301 of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185(a).

Plaintiff, Association of Professional Engineering Personnel, a labor union, here seeks to enjoin the defendant, Radio Corporation of America, from using a merit rating plan dated November 15, 1959 and to compel the defendant to continue in effect a rating plan dated October 1, 1959. The union, as an alternative remedy, seeks to have specific performance of the provisions of the colective bargaining agreement requiring arbitration of grievances.

Since the decision of the Supreme Court in Textile Workers Union of America v. Lincoln Mills, 1957, 353 U.S. 448, 77 S. Ct. 912, 1 L. Ed. 2d 972, there can be no doubt concerning the jurisdiction of this Court to entertain an action for specific performance of a collective bargaining agreement; see, Independent Petroleum Workers of New Jersey v. Esso Standard Oil Co., 3 Cir., 1956, 235 F.2d 401.

 Suit in this matter was started February 4, 1960, by the filing of a complaint and issuance of an order to show cause why a temporary restraint should not be ordered, returnable February 19, 1960. Because of engagement of counsel in trial before this Court, at Trenton, the matter was continued until March 11, 1960. After hearing argument by counsel in the matter the Court discussed various phases of the matter and adjourned the hearing to March 25 to give opportunity to counsel to meet those matters discussed by the Court in its comments.

 In view of the fact that the basic contract in existence between the parties hereto expires July 1, 1960, and expeditious hearing seemed most necessary, the Court communicated with counsel and by their agreement postponed the hearing on the return of the order to show cause and set the matter down for final hearing with a companion matter, Civil 786-58, on April 18 and 19, 1960, each matter to be heard separately.

 After full hearing and because of the present exigency the Court will dispose of the present or later matter instead of following its usual course of disposing of the oldest matters first.

 For many years the plaintiff, Association of Professional Engineering Personnel, an unincorporated organization, has represented a considerable number of the engineers employed by the defendant, Radio Corporation of America, in their respective labor relations and contract negotiations. For many years past the defendant has had a system of reviewing the employment conduct of its employees for the purpose of granting merit increases. Until 1957 the plaintiff-union has had little or no say in the method employed by the defendant in merit rating review.

 On July 21, 1958, the defendant-company for the first time, entered into an agreement with plaintiff-union, whereby it agreed to establish a plan to be used as a basis in granting individual merit increases. This plan became effective February 1, 1959.

 On July 2, 1959 (at or about the time the parties had concluded negotiations on their Master Agreement controlling their relations between July 2, 1959 and July 1, 1960) the defendant-company entered into another agreement to continue in effect the plan established as a result of the July 21, 1958 agreement, and, likewise, to consider modifications and revision of the same to be effective October 1, 1959.

 On or about October 14, 1959, the defendant-company presented to the union the merit rating plan effective October 1 1959.

 Thereafter, and on or about December 1, 1959, a new plan was prepared by the defendant and delivered to plaintiff to be effective as of November 15, 1959. The plaintiff-union thereafter advised the defendant-company that it did not accept the revised plan or recognize the validity of any plan other than the plan of October 1, 1959.

 On December 16, 1959, a written grievance was filed by the plaintiff-union with the defendant-company alleging that the company had no authority under the agreements in existence between the union and the company to make the revision to the plan of October 1, 1959, without the consent of the plaintiff-union. The company adopted the position that the matter was not one for grievance or arbitration and refused to participate in arbitrating the matter, whereupon the plaintiff-union instituted this suit. In the prayers of its complaint the plaintiff seeks a preliminary and permanent injunction restraining the defendant-company from using any plan other than the plan of October 1, 1959, and directing the defendant to use such plan and discontinue the use of the November 15, 1959 plan, or, for an order directing the defendant-company to proceed with arbitration of the grievance filed on December 16, 1959.

 This matter was tried principally on the pleadings and affidavits, together with various exhibits offered by the parties and the testimony of one witness produced by plaintiff, the Executive Secretary of plaintiff.

 After a review of the record before it, the Court is convinced that the action must be dismissed for the following reasons:

 First: In the contract to establish a merit rating plan the defendant-company reserved completely the unilateral right to revise and modify the plan from time to time and the plaintiff-union could, at best, only make suggestions, which after consideration the company could accept, modify or reject.

 Second: There is no showing by plaintiff-union that the November 15, 1959 Revision of the Plan damaged any of its members or the union or that there was a probability that it would have a detrimental effect any of its members or the union.

 Third: The grievance dated December 16, 1959, filed by the plaintiff-union with the company, is not under the provisions of the contract arbitrable.

 Speaking of intention of the parties to a labor contract, Judge Aldrich, U.S.D.J., District of Mass., in Local 205, etc. v. General Electric Co., 172 F.Supp. 53, 56, said:

 'It is sometimes said that collective bargaining agreements are not like other contracts, and are to be differently interpreted. There is a certain basis for this, in that such agreements, while limited in length and language, must cover, both physically and conceptionally, very wide bounds. Nevertheless, the fact remains that such agreements are contracts, and are often highly developed and lengthily negotiated against a background of experience. While a court should be prepared to be less than legalistic, I do not think any court can be expected to adopt an entirely different interpretive approach just because a contract is labeled 'collective bargaining agreement.' What the court should attempt to do, as in all other instances, is to put itself in the supposed position of the parties so far as possible, in order to determine what they intended, or would have intended, and in so doing should recognize the parties to one type of agreement have different problems, and perhaps think differently, than parties to some other type of agreement. In this regard it seems to me the most significant possible difference between a collective bargaining agreement and other contracts is the fact that of necessity every future situation cannot be provided for. Hence amplification of expressed provisions may more readily be undertaken by implication than in other more limited and tightly circumscribed situations.'

 There are many things that illustrate that the right to revise the plan was a unilateral right, but, in the main, it is felt that is specifically spelled out by the agreements themselves dated July 21, 1958 and July 2, 1959, respectively.

 The July 21, 1958 agreement, among other things, provided:

 'The Company will develop a merit review rating plan by October 1, 1958. A copy of this plan will be given to the Association and earnest consideration will be given by the Company to any constructive suggestions the Association may have. Pilot studies of this plan will be conducted between October 1, 1958 and February 1, 1959. On February 1, 1959 a merit review rating plan will become effective for the determination of individual merit increases to be granted on and after ...

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