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April 29, 1975

Andrew MASULLO et al., Plaintiffs,
GENERAL MOTORS CORPORATION and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. Defendants. Michael SAKALA et al., Plaintiffs, v. GENERAL MOTORS CORPORATION et al., Defendants

Lacey, District Judge.

The opinion of the court was delivered by: LACEY


 A bench trial of these two consolidated actions was held before me on March 3-5, 1975 . Involved are a company's merging of operations and conflicting work seniority claims of two groups of employees, which in Civil Action 1377-72 consisted of former General Motors Harrison plant employees (hereinafter referred to as "Sakala"), and in Civil Action 658-72 of General Motors Clark plant employees (hereinafter referred to as "Masullo"). Subject matter jurisdiction lies under Section 301(a) of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. Sec. 185(a).

 Proofs were jointly submitted by the parties in the form of "Agreed Exhibits" (See "Statement of Agreed Exhibits" for index thereof); "Stipulation Regarding Deposition Transcripts" of John C. Edwards, William Hess, Robert W. Clark, Leo R. Haley, Paul Phillippe and Irving Bluestone; stipulations as embodied in "Joint Preliminary Proposed Findings of Fact", and oral stipulations in the course of trial (T16-17, 388). Plaintiffs called 10 witnesses in support of their conflicting claims. Defendants called no witnesses; but moved for judgment under F.R.Civ.P. 41(b) and 52(a) in both actions. Post-trial briefs and proposed Findings of Fact and Conclusions of Law have been filed in support of said motions and on the case in its entirety.

 The only issue to be determined at this juncture is whether the defendants, Local and International Unions, or either of them, violated a duty of fair representation to the plaintiffs under Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967) and Humphrey v. Moore, 375 U.S. 335, 84 S. Ct. 363, 11 L. Ed. 2d 370 (1964). *fn1"

 The claims against the Unions and the Corporation of breach of the collective bargaining agreement (National Agreement) have been deferred, the plaintiffs having demonstrated their understanding that unless they succeed in their actions against the Unions, or either of them, for alleged unfair representation, the contract claims must fail.


 This suit results from the merger into the Corporation's Clark Township, N.J., plant of certain toolroom work formerly performed at its Harrison, N.J., plant. In 1965 the decision was made to close the Harrison plant; and its manufacturing operations were gradually phased out between then and December 1969, and distributed among several plants, including Clark Township, creating the problem of what personnel and how many were required to man the transferred operations at the receiving plant. As will be hereinafter detailed, estimates of the amount of transferred work were made by the Corporation, followed by discussion with the Unions, and ultimate agreement between Corporation and International Union. Such was done pursuant to paragraph 96 of the National Agreement, which in pertinent part provides:

If the transfer of major operations between plants results in the permanent release of employes with seniority, the case may be presented to the Corporation and, after investigation, it will be reviewed with the International Union in an effort to negotiate an equitable solution, in accordance with the principles set forth in the previous paragraph. Any transfer of employes resulting from this review shall be on the basis that such employes are transferred with full seniority.

 Since the merger of the Harrison operation into the Clark plant was a transfer of major operations, paragraph 96 was operative.

 Hundreds of production and support personnel were involved in the Harrison plant closing and consequent transfers to other plants; however, the dispute at bar is whether there was transferred to Clark sufficient toolroom work to require as many as 34 grinders and toolmakers, as estimated by the Corporation. *fn2"

 Thus, in the numerous negotiations, grievances and appeals, the opposed groups of plaintiffs (or their representatives) made their respective claims based upon conflicting views as to the quantity of Harrison toolroom work transferred to Clark.

 The position of the Masullo group was that work for not more than 24 toolroom employees (and indeed considerably less) was transferred. The position of the Sakala group was that work for 34 or more employees was transferred. The resolution of the alleged unfair representation claim does not depend on whether either of these numerical contentions is correct, but rather on an analysis of the Unions' conduct and motivation for the positions they took.

 While this case focuses on the differences related to whether sufficient work for toolroom employees was transferred from Harrison to Clark, 415 other employees were transferred without substantial problems.

 Prior to the merger, the Harrison toolroom had 60 relatively senior employees, and Clark 150. While both plants produced bearings, and some toolroom jobs in the two plants were similar, it is clear that the operations in the two toolrooms were not identical.

 Under the circumstances, therefore, there was no way to measure with accuracy and precision how many jobs -- and men -- were required to go with the transferred work. When the January 1965 decision to close the Harrison plant was announced, the employees at both Harrison and Clark were concerned. International Union representatives went to both plants in January 1965 to explain generally the manner in which paragraph 96 would be applied. As the Corporation states, the International presented what appears now to have been "an erroneously optimistic view, but hardly [one that was] a breach of their duty of fair representation." Corporation Post-Trial Memo, 9.

 It is clear that there is no calculus to be applied to any transfer of operations and that each differs. What can be said is that the negotiations under paragraph 96 should revolve about an honest and good faith estimate of the number of people needed to perform what is an honest and good faith estimate of the amount of work to be transferred, with the responsibility lying with management to prepare these estimates, at least at the outset, although of course the right rests with the International Union to review said estimates.

 Further by way of background for the specifics which follow, the International Union and not the Local Union has the ultimate responsibility of negotiating with the Corporation the "equitable solution" of paragraph 96, and in these negotiations the International may, if acting in good faith, generally rely upon the estimates of work and manpower prepared by local management, which has the facts at hand as to projected moves and projected need. Here, it is clear, the parties at all times understood that what was being advanced was a projection or estimate, rather than a precisely accurate figure. Just as the Corporation's Detroit negotiator looks to the local management for its estimates, so the International's negotiator consults with the Locals to attempt verification.

 Moving now to the heart of this matter, in 1968 studies were undertaken by the Corporation preliminary to the movement of the toolroom support group from Harrison to Clark. William Hess, Supervisor of both the Harrison and the Clark toolrooms, estimated the number of each classification of people (tool-makers and toolroom grinders) needed to perform the tooling for the product lines which were to be moved. His first opinion was that 24 jobs were needed; later in 1968, prior to the first personnel transfers, Hess determined that work for 34, not 24, additional toolroom grinders and toolmakers would be created in Clark, a number which he and the Corporation still believe to be the best estimate. This toolroom estimate, with estimates of the other crafts, was presented to the Union as a total of 329 employees (with a breakdown indicating 34 toolroom employees). In this regard, it should be noted that the toolmaker's function is supportive but not directly proportional to the plant's output, precluding the likelihood of establishing a fixed relationship between the percentages of toolmakers and production workers.

 The International assured the Masullo group that 34 was reasonable. The shop committee nevertheless placed an objection in the minutes of its meeting of March 1968; and various members of the Masullo group attempted to file grievances, but refrained from doing so when it was explained to them that such grievances could not be proven factually until the work had been transferred. From that point, the shop committee representing the Local has never abandoned its opinion that there was insufficient work for even 24 men. This opinion, I find, has never been proved or disproved.

 Thereafter, the International and the Corporation negotiated a Memorandum of Understanding, dated June 22, 1968, specifying the conditions under which a total of 329 employees (including 34 toolroom employees) could be transferred with seniority. Subsequently, revised estimates were made which included 34 toolroom employees among a new total of 425 employees. After negotiations, on October 2, 1969 the Corporation and International agreed to modify the memorandum dated June 22, 1968, by substituting the number 425 for 329. The Sakala plaintiffs contend that the International made "apparently some verification" (Sakala Proposed Finding of Fact 19), the Masullo plaintiffs contend it did not. The testimony on this point is not substantial. I find that it did not. I also find, however, that the International could properly rely upon the ...

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