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De Marco v. Thatcher Furnace Co.

Decided: July 22, 1968.

JOSEPH DE MARCO, PLAINTIFF,
v.
THATCHER FURNACE COMPANY, A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE AND AUTHORIZED TO DO BUSINESS IN NEW JERSEY; T.F.C. HOLDING CORP., A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE AND AUTHORIZED TO DO BUSINESS IN NEW JERSEY; HOLLAND FURNACE COMPANY, A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE AND AUTHORIZED TO DO BUSINESS IN NEW JERSEY AND ATHLONE INDUSTRIES, INC., A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE AND AUTHORIZED TO DO BUSINESS IN NEW JERSEY, DEFENDANTS



Mintz, J.s.c.

Mintz

Plaintiff Joseph R. DeMarco alleges that he was wrongfully discharged by his employer, Thatcher Furnace Company. He argues that his union did not adequately and fairly represent him in the grievance procedure prescribed in the collective bargaining agreement. As a result of his discharge, he was unemployed for several months. He seeks a money judgment for his loss of wages.

Thatcher Furnace Company was a Delaware corporation and a wholly owned subsidiary of Holland Furnace Company, also a Delaware corporation. In 1964 Thatcher Furnace Company changed its name to T.F.C. Holding Corp. On May 28, 1965 this company ceased doing business in New Jersey and apparently was dissolved. On May 24, 1966 Holland Furnace Company changed its name to Athlone Industries, Inc. It is urged that since T.F.C. Holding Corp. is out of business, this court should fashion its remedy by making plaintiff whole out of that company's assets in the hands of Athlone, since Athlone is really a trustee in dissolution for T.F.C. Holding Corp., the successor to Thatcher Furnace Company.

Plaintiff had been employed as a welder by the Thatcher Furnace Company (hereinafter the company) for approximately 13 years prior to his discharge on April 2, 1964. He was a member in good standing of the International Molders and Allied Workers Union, AFL-CIO, Local No. 305, and for almost a year prior to his discharge served as an elected committeeman for his department, the Plate Shop.

The terms and conditions of employment at the company's plant were governed by successive "Conference Agreements" -- collective bargaining contracts between the international union, the exclusive collective bargaining agent in the plant, and the Manufacturers' Industrial Relations Association (hereinafter M.I.R.A.) of which the company was a member.

During the summer of 1963 a dispute smoldered among the welders in the Plate Shop over the piece rates set by the company with respect to work on the tube bundle line. The international union was called in to time-study the welding jobs on the tube bundle line and reached a rate settlement with the company. Thereafter welders on the tube bundle line, notably plaintiff, renewed their complaints about unsatisfactory piece work rates and the company countered with charges that plaintiff had been wrongfully "controlling production" and urging other welders to do the same so as to convince the company that its piece work rates were unrealistically demanding. During this period plaintiff was consistently a leading producer among welders on the tube bundle line. As early as November 23, 1963 the company discharged plaintiff for "controlling production." Before plaintiff even filed a grievance, the union interceded on his behalf and shortly effected his reinstatement.

Upon plaintiff's return to his job the same bickering resumed and the company discharged him again on December 5, 1963. This time plaintiff filed a grievance pursuant to the "Conference Agreements" which read as follows:

"An employee who has been discharged, suspended or laid off, shall not suffer any loss of pay if it is found that such discharge * * * is unjust, provided the employee files a grievance promptly." Conference Agreements Between I.M. & A.W.U. and M.I.R.A. (1962-1963), Art. III, cl. 12, p. 11.

The company, plaintiff and the local union could not reach agreement through the first two steps of the grievance procedure outlined in the aforementioned "Conference Agreements." At step 3 Bernard Butsavage, a vice-president of the

International Union, was called in to meet with Mr. Grosser, the company lawyer. The company presented charts purporting to illustrate how plaintiff by his output engaged in the control of production on the tube bundle line. The union representative disclaimed the probative value of these charts for this purpose and plaintiff appeared at the conference to rebut the accusations leveled against him. No resolution of the grievance resulted at this step and the parties referred the grievance to step 4, a conference between the presidents of the international union and the M.I.R.A.

On January 6, 1964, with the grievance in this posture and plaintiff out of work for one month, executives of the company, the local's business agent Anthony Mastandrea, and several members of the local's shop committee met to discuss plaintiff's reinstatement and several other related matters. The company drafted an agreement which was signed and read in part as follows:

"1. We agree that control of production in order to affect prices unfairly is illegal and results in unjustifiably increasing cost. We will not engage in it nor condone it in others.

2. We agree that the methods of finish welding tube bundles will be changed and piece work prices reestablished on the basis of time study and a proper relationship between effort and earnings.

3. We agree that Joe DeMarco shall, in view of the above, be reinstated immediately, without back pay (but he will receive holiday pay for Christmas and New Year's Day).

4. We agree to recommend to Messrs. Butsavage and Grosser that the above constitute the final adjudication of this grievance and that they so agree in writing -- in anticipation of this, this agreement is made effective as of the date hereof.

E. B. Tuttle

Gerald J. Toner

George Gray

E. Ostergaard

H. Van Nest

Joseph DeMarco"

The above signatures on the left represent those of members of the local union shop committee, and those on the right of company executives. It appears that the agreement was drafted in expectation that Mastandrea would sign. However, although urging others to sign, Mastandrea unexplainedly refused to do so himself, and his name under the first signature line on the left was obliterated.

Grosser apparently accepted this local agreement as a final adjudication of the formal grievance, but there is a conflict in the evidence as to whether Butsavage ever did so.

After plaintiff's return to work on January 7, the company altered the method of welding tube bundles and conducted a new time study of the job and fixed a new piece rate. Plaintiff, on behalf of himself and other welders in the plate shop continued to press for a higher piece rate. Finally, on March 12, 1964 the Company filed a grievance against the arc welders of the plate shop, including plaintiff, wherein it accused them of violating the January 6 agreement by engaging in "control of production" during the course of the time studies and refusing to accept the new rates issued by the company on the revamped job. At a meeting convened on April 2, 1964 with union vice-president Butsavage present, the company discharged plaintiff once more. Plaintiff testified that Butsavage said this was the first time he had heard of the January 6 agreement and apparently expressed his disapproval of the same.

Plaintiff immediately filed a grievance and the union and the company agreed to reactivate the grievance machinery at step 4 and set a June 3, 1964 date for a conference between the president of the international union and the president of the M.I.R.A. Butsavage allegedly told plaintiff that this resort to ...


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