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June 14, 1965


The opinion of the court was delivered by: SHAW

This is an action by plaintiff as employer against defendant union for declaratory judgment pursuant to 28 U.S.C. § 2201. Defendant, acting as the collective bargaining agent of employees of plaintiff, demanded arbitration of an alleged grievance. Plaintiff contends that the grievance asserted 'presents no issue properly arbitrable' because the subject matter thereof had previously been determined by arbitration. Defendant denies that the Court has jurisdiction to determine the issue of arbitrability alleging that the grievance in question is not the same as the one previously presented for arbitration and it seeks by way of counterclaim: (1) an order compelling plaintiff to arbitrate the grievance in question, and (2) to vacate and set aside the prior award in arbitration in so far as it purports to dispose of the grievance now in question.

The matter has been submitted to the Court for disposition upon the pleadings and stipulated facts. The precise question presented is whether a previous arbitration award precludes arbitration of the grievance now asserted. Jurisdiction exists by virtue of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185.

 The pertinent facts may be briefly summarized as follows:

 Plaintiff is a New York corporation which operates ship repair yards in Brooklyn, New York and Hoboken, New Jersey. Defendant is a labor organization having its principal office at 1312 Washington Street, Hoboken, New Jersey. It has been the bargaining agent for employees of plaintiff at the Hoboken yard since August 18, 1942, the first collective bargaining agreement having been made between defendant and Todd Hoboken Drydock, Inc., the predecessor corporation of the present plaintiff. The particular collective bargaining agreement, provisions of which are applicable to the pending litigation, was made on July 29, 1960. It was a joint labor agreement with plaintiff to which defendant and an affiliate union, Local 39, were parties. Members of defendant union were employed at the Hoboken yard of plaintiff. Members of the affiliate union, Local 39, were employed at the Brooklyn yard. For purposes of grievance and arbitration procedure, employees of plaintiff in the Hoboken yard are represented by defendant. Employees at the Brooklyn yard are represented by the affiliate union, Local 39.

 Robert Bateman, an employee of plaintiff and a member of the defendant union, had been employed for many years by plaintiff at its Hoboken hard and had attained a seniority status as defined by the labor agreement. On April 18, 1961 his employment at the Hoboken yard was terminated by plaintiff on the ground of alleged disability due to loss of hearing.

 As a consequence of the termination of the employment of Robert Bateman, defendant submitted a grievance on April 25, 1961. The labor agreement provided for a grievance procedure and for arbitration if the grievance was not satisfactorily adjusted and could not be settled between plaintiff and defendant. It also contained provision barring strikes or lockouts.

 The grievance submitted on behalf of Robert Bateman on April 25, 1961 designated as 32-1961 read as follows:

 'On Tuesday, April 18, 1961, R. Bateman badge 88006, department 24, night shift, employed since March 1943, was laid off.

 'The Union demands that R. Bateman be returned to work and be paid for all time lost.'

 Plaintiff denied the grievance by letter dated May 1, 1961 wherein it stated:

 'As we advised the Union representatives verbally on April 18, 1961, Mr. Bateman was being laid-off effective that date because of his physical deficiency in hearing (25% Binaural loss of hearing), which makes it unsafe for both himself and his fellow employees to continue working in his occupation in our shipyard. 'The action taken was proper in our opinion and the Union's claim is therefore denied. 'It will be recalled that it was agreed that Steps II and III of the grievance procedure would be waived and that we would proceed to a prompt arbitration on the matter.'

 The parties then designated Richard T. Davis, Esq. as sole arbitrator *fn1" to hear and decide the grievance. He conducted a hearing on June 22, 1961 and made an award in favor of plaintiff on August 11, 1961. He found that plaintiff had a right to rely on the opinion of its physician that 'Mr. Bateman's discharge was medically indicated.' (Emphasis supplied.)

 Bateman applied for further employment with plaintiff at its Hoboken yard on August 18, 1961 and his application was denied by plaintiff. The union responded by filing a second grievance designated as 55-1961 which read as follows:

 'On August 18, 1961 this man applied to the Todd Shipyards Corporation of Hoboken, N.J. for employment, doing any kind of work which he was capable of performing. 'He was flatly refused and was told he could never be employed by the Todd Corporation again. 'This is a violation of Article XI, Section 7, of the existing Labor Agreement. 'Bateman had previously been terminated by the Company because of a physical impairment resulting from his 18 years of employment at Todd. 'He still retains his seniority, plus the physical ability to perform many and various types of jobs in the ship repair yard. 'The Union demands that Bateman be assigned employment immediately to work which is 'within his capacity to perform.' Article XI, ...

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