It is undisputed that on September 22, 1970, defendant notified plaintiff, by letter of Mr. J. J. Shaughnessy, its Director of Industrial Relations, that the following employees were to be laid off: Messrs. Mody, Newton, Khan, Marasigan, Nigro, Pytlik, Ching, Fers, Jarvis, Malinowski and Orzynski.
On September 23, 1970, the Union responded by filing a grievance with defendant, complaining that the employees were really being replaced and not laid off as stated by defendant. Mr. Shaughnessy, by letter of October 15, 1970, reiterated that the employees involved were being laid off due to a lack of work, pursuant to the Article 20 criteria of the Agreement.
Plaintiff's complaint alleges that thereafter the Agreement's grievance procedures were "fully utilized" and that "no further steps" could be taken by the Union "under the grievance or arbitration provisions of the contract." Defendant's answer asserts, however, that the Agreement's grievance procedures were not completed or exhausted on behalf of any of the 11 men, and further, that in the case of 6 of the employees, no grievances were processed at all.
After the processing of at least some of the grievances, the Union then filed its complaint herein seeking essentially the following relief:
1. A judgment adjudging the defendant to be guilty of violating Article 20 of the agreement by separating the 11 employees from their work; also that they be reinstated without loss of seniority or loss of pay.
2. A judgment finding the Company in violation of Article 22 of the contract due to discharging the employees and refusing to arbitrate the propriety of the discharges; further, that the Company be ordered to submit to arbitration on the issue of whether the discharges were properly made pursuant to Articles 22 and 24 of the contract.
This suit alleges a violation of a labor contract between a certified bargaining representative and an employer. Plaintiff is a "labor organization" within the meaning of 29 U.S.C. § 152(5); and defendant is an "employer" within the statutory definition of 29 U.S.C. § 152(2), and in interstate commerce under 29 U.S.C. § 152(7). The Union has represented its members employed by the defendant within the District of New Jersey; therefore, this Court has subject matter jurisdiction over this suit and venue is proper. 29 U.S.C. § 185.
As previously stated, the Agreement became effective August 1, 1969, and was in force when the 11 named employees were separated from their employment on or about October 21, 1970.
The Agreement expired on December 6, 1971, and on August 29, 1972, the Union was decertified as the exclusive bargaining representative of defendant's engineering personnel. The complaint herein was filed on November 12, 1970. The subsequent expiration of the Agreement, and decertification, do not affect the Union's standing to prosecute claims that arose when the collective bargaining agreement was in effect. John Wiley & Sons v. Livingston, 376 U.S. 543, 11 L. Ed. 2d 898, 84 S. Ct. 909 (1964); United States Gypsum Co. v. United Steelworkers of America, 384 F.2d 38, 46 (5th Cir.), cert. denied, 389 U.S. 1042, 19 L. Ed. 2d 832, 88 S. Ct. 783 (1968).
Plaintiff during the various stages of this litigation has vacillated greatly in its position. Initially, as set out in its complaint, three contentions were asserted:
1. There was no true lack of work within the meaning of Article 20, because the work performed by the former employees continued to be done after their separation by other employees; further, there was other available work which the former employees were qualified to perform, but that this employment was given to newly hired employees.
2. If there was a bona fide lack of work, then the former employees were not selected for layoff status according to the procedure provided for in Article 20.
3. The employees were in fact discharged and not laid off; further, the employer violated Article 22 by treating the employees as being laid off, thereby denying the Union the right to proceed to arbitration.
On March 8, 1971, on oral argument before Judge Reynier J. Wortendyke, Jr., the Union appeared in response to defendant's motion to dismiss the complaint.
Plaintiff abandoned its claim under paragraph 11, namely, that the men were discharged and not laid off, as is clearly evidenced by its counsel's statements to Judge Wortendyke (Tr. p. 24; March 8, 1971):
And if your Honor sees fit, we would agree, your Honor, to striking Paragraph 11 from the complaint, because we believe that that is all the motion to dismiss goes to, is Paragraph 11.
During the same hearing (Tr. pp. 12, 15), the Union's position was that the lack of work issue was a fact question to be determined by the Court at trial; and the Union at that time apparently surrendered its claim to arbitration under Article 22.
The abandonment of paragraph 11 was affirmed by plaintiff's pre-trial memorandum of November 26, 1971 (p. 7) and again in plaintiff's pre-trial statement of January 12, 1973 (p. 8).
Consequently, the Union's position at that juncture of the litigation was to have the Court try the issue whether there was a lack of work or not, under the Agreement's Article 20, which precludes arbitration of the lack of work issue. The next step plaintiff, under its previously stated position, would have had this Court take (assuming a finding of lack of work) would be to determine whether the laid off employees were properly selected for layoff under the contract provisions covering employment separation. See plaintiff's pre-trial statement of January 12, 1973 (p. 9).
Now, incomprehensibly, against the foregoing background, the Union in its brief of January 29, 1973, in opposition to defendant's instant motion for summary judgment, alters its prior positions (Brief, pp. 2 and 26). It now contends that the lack of work issue is to be determined not by the Court, but by an arbitrator, a contention renewed on oral argument before this Court on January 31, 1973 (see Tr. pp. 16, 22; and see p. 25):
The Court: Whether there was, in fact, a lack of work or not?