The present suit was filed on March 10, 1960 and on March 14, 1960 a consent order was entered in which it was provided that no steps beyond the selection of an arbitrator would be taken in the requested arbitration.
It is so well settled that the question of arbitrability, in the absence of a specific provision by the parties in their collective bargaining agreement to the contrary, is for the courts that no discussion thereon is necessary. In order to pass on this question it is necessary for the court to consider the facts on which the demand for arbitration is made so as to determine whether the issues raised in the grievance are within the confines of the agreement. Cf. Engineers Association v. Sperry Gyroscope Co., etc., 2 Cir., 1957, 251 F.2d 133, certiorari denied 1958, 356 U.S. 932, 78 S. Ct. 774, 2 L. Ed. 2d 762. The mere allegation of the existence of a grievance does not of necessity import its presence. There must be facts to support the claim which bring it within the comprehension of the collective bargaining agreement.
Here the facts are not in dispute. The four employees were severed from their employment by the action of the pension committee of the ITT Labs and they were so notified. There was no charge of 'unsatisfactory conduct or performance' made by the Employer. But the grievance alleged is that the employees were discharged in violation of Article XIV, Sections 1, 2 and 3. To bolster this contention the Union relates Article XIV to Article XVIII which outlines the right of the Company 'to lay off employees because of lack of work or other legitimate reason.' (Emphasis supplied.) This seems wide of the mark. The grievance is limited to Article XIV, Sections 1, 2 and 3, the basis of which is discharge for the enumerated reasons.
That there is a clear distinction between 'discharge' as used in the agreement and 'retirement' seems patent and has been attested in the case of United States Steel Corporation v. Nichols, 6 Cir., 1956, 229 F.2d 396, 56 A.L.R.2d 980, certiorari denied 1956, 351 U.S. 950, 76 S. Ct. 846, 100 L. Ed. 1474. The severance from employment in the instant case does not appear capable of being construed as a discharge within the purview of the agreement.
Since the grievance is declared to be founded on a violation of Article XIV, the court is compelled to the conclusion that there is no basis for the allegation of the existence of such a grievance. No circumstance has been shown which would warrant a finding that the application of a retirement fund plan is the equivalent of a discharge for unsatisfactory conduct or performance.
The question of the extent and legal interpretation of the pension plans does not seem to have been made the subject of arbitration in the contemplation of the parties to the bargaining agreement. The existence of the pension plans is recognized in the contract and they were the subject of inconclusive argument between the parties in discussions preliminary to the signing of the agreement. The Local did not see fit to insist on the inclusion of the application of the Funded and Unfunded Plans for Pension as a matter reserved for arbitration, though it might have done so. This conclusion is arrived at with full awareness on the court's part of its finding (in another suit between the parties hereto) that arbitration agreements must be given liberal construction and wide extension. But that must be done within the framework of the bargaining agreement.
Whatever inequity or injustice, if any, may exist in the instant termination of employment has not been provided for in the agreement. Not all situations are foreseeable and new problems not within the comprehension of existing agreements may arise from time to time and be the subject of negotiation in an amended or new contract. Whether, as suggested in the course of argument, the unforeseen difficulty would justify a work stoppage to secure the desired protection, in view of the amicable relations heretofore existent between the parties hereto, is a debatable question, but it does suggest a field for future adjustment.
This opinion shall serve as findings of fact and conclusions of law.
Let an order be submitted.
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