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LOCAL 719

March 25, 1966

LOCAL 719, AMERICAN BAKERY AND CONFECTIONERY WORKERS OF AMERICA, A.F.L.-C.I.O., Plaintiff
v.
The NATIONAL BISCUIT COMPANY, Defendant



The opinion of the court was delivered by: WORTENDYKE

 This action, brought under N.J.S.A. 2A:24-7 by a labor organization against an employer of members thereof, to vacate the award of an arbitrator, was instituted in the Law Division of the Superior Court of New Jersey and removed to this Court because of its jurisdiction under 29 U.S.C. § 185(a) and 28 U.S.C. §§ 1331 and 1337.

 The cause of action is based upon a Collective Bargaining Agreement between the parties providing for the arbitration of certain disputes between them. The arbitrator held that the issues submitted were arbitrable and made an award upon the merits. The Local contends that the arbitrator's decision "exceeded his powers and was so imperfectly executed that a mutual, final and definite award upon the subject matter submitted was not made." The employer denies this contention and counterclaims for judgment confirming the arbitrator's award. Defendant moves for summary judgment pursuant to F.R.Civ.P. 56. The motion was briefed and argued. This opinion embodies the Court's opinion thereon.

 In support of the motion, defendant urges:

 
(1) The question of arbitrability of the dispute was expressly submitted to the Arbitrator by both parties.
 
(2) The Local Union waived judicial determination of arbitrability by participating in the arbitration proceedings upon the merits.
 
(3) The dispute was arbitrable under the Collective Bargaining Agreement and controlling law.

 The dispute giving rise to the arbitration presented the question whether certain work schedules proposed by the employer for shipping branch loading, unloading and assembly operations at the employer's place of business in Fair Lawn, New Jersey, would exceed "a fair day's work" as that phrase is used in Section 2 of Article 28 of the Collective Bargaining Agreement.

 Article 28 of the Collective Bargaining Agreement provides:

 
"Section 1. The Management of the business of the Company, the direction of its working forces, the schedules and quantities of production and the methods, processes and means of manufacturing, are prerogatives of the Management.
 
It is understood that no provisions of this paragraph shall in any way interfere with, or abrogate any rights conferred upon the Union or its members, by any other clause contained in this Agreement.
 
Section 2. In cases where changes in methods of manufacturing or increases in production are contemplated by the Management, the Company will submit such changes to the Business Representative and/or top official of the Local Union. Where the Union claims that any such change will result in more than a fair day's work for the employees involved, such change shall be submitted to a person designated by the top official of the parent body of the local union and to a person designated by the Management, in an effort to reach an agreement. Where both officials fail to reach an agreement, they shall choose a mutually satisfactory third (3rd) person as arbitrator of the dispute. His decision shall be final and binding on both parties."

 It is conceded that the employer operates a commercial bakery in which it manufactures many varieties of cookies and crackers. Its 1500 employees are members of Local 719. Approximately 80 of the employees are employed in the shipping branch of the factory from which baked goods, in containers of various sizes and shapes, are dispatched by truck and rail in interstate commerce.

 Where, as here, parties to a Collective Bargaining Agreement have committed themselves to arbitrate disputes arising under the agreement, the Court is called upon to ascertain only whether the party seeking arbitration is making a claim which on its face is governed by the agreement. The merits of the claim are exclusively for the arbitrator. International Tel. & Tel. Corp. v. Local 400, Etc., 286 F.2d 329 (3 Cir. 1961). Association of Westinghouse Salaried Employees v. Westinghouse Electric ...


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