ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action NO. 74-339).
Gibbons, Circuit Judge, Markey,*fn* Chief Judge, Court of Customs and Patent Appeals, Weis, Circuit Judge.
This is an appeal from a final order entered by the United States District Court for the Western District of Pennsylvania directing the Joseph Horne Company (hereinafter the employer or the Company) and General Warehousemen and Employees, Local Union 636 (hereinafter the Union or Local 636) to submit to arbitration the seniority issue raised by an employee, Charles E. Biteler. The Union instituted this action against the Company pursuant to § 301 of the Labor Management Relations Act of 1947 (Taft-Hartley Act), 29 U.S.C. § 185 (1970), requesting enforcement of the arbitration provisions of the parties' present collective bargaining agreement (hereinafter the agreement). The employer contends that the grievance at issue is excluded from the arbitration clause of the agreement. The district court held that the Union's consent to the exclusionary clause was vitiated by the Company's concealment of the facts creating the basis for the grievance prior to the execution of the agreement. Because we conclude that the district court's finding of concealment on the part of the employer is clearly erroneous, we reverse.
Local 636 and the Company are currently parties to a collective bargaining agreement executed on December 18, 1973 and made effective from that date until February 14, 1976. Section 7.7 of Article VII of this agreement contains an arbitration provision which states in pertinent part that:
G. Occurrences prior to the execution date or subsequent to the expiration date of this Agreement shall not be subject to arbitration, unless by consent of the Company. (App. at 97a).
On January 10, 1974 the Company received a written grievance report, dated January 4, 1974, from Biteler in which he complained that the employer had violated the seniority provisions of Article VI of the agreement by promoting a "less senior employee" to a higher rated job classification without consideration of his seniority. (App. at 122a). Subsequent discussions and correspondence between the Company and the Union disclosed that the "less senior employee" referred to by Biteler was Guy DiPaola. Both Biteler and DiPaola had been employed in the furniture workroom of the Company's Pittsburgh store and service building as "benchhands". On May 17, 1971 the Company had promoted DiPaola to the higher job classification of "Combination Furniture Repairer" even though he had less seniority than Biteler.*fn1
DiPaola's promotion is an occurrence prior to December 18, 1973 the effective date of the new agreement. The Company, therefore, contends that it is not required to arbitrate this grievance because of the exclusion in § 7.7(G) of the agreement. Local 636 and Biteler, however, argue that the Company, prior to the execution of the December 18th agreement, failed to disclose DiPaola's promotion and that this concealment of material facts vitiated the Union's consent to the exclusion contained in § 7.7(G). The district court found that:
Neither the individual employee nor the Union was informed of the promotion until after the execution of the current agreement. General Warehousemen and Employees Local Union No. 636 v. Joseph Horne Co., Civil No. 74-339 (W.D. Pa. July 18, 1974).
On the basis of this finding the court concluded that Local 636 was not bound by § 7.7(G)'s exclusion of certain otherwise arbitrable grievances. But in making this finding the district court did not refer to evidence in the record bearing on the issue. Our review of the entire evidence leaves us with the definite and firm conviction that a mistake has been committed. Fed. R. Civ. P. 52(a); United States v. United States Gypsum Co., 333 U.S. 364, 92 L. Ed. 746, 68 S. Ct. 525 (1948); Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972).
The uncontradicted testimony of Richard Koch, the Company's Manager of Merchandise Handling and Workroom Superintendent, establishes that in September, 1973 the employer and Local 636 began to prepare updated seniority lists. The Company's initial list, dated October 5, 1973, contained the name of each employee, his job classification, company service date, and group and bargaining unit seniority dates. (Company's Trial Exhibit "B", App. at 132a-138a). This list was submitted to the Union in early October at a negotiation meeting held at the office of the Federal Mediation and Conciliation Service. At the suggestion of the Mediator both parties to the negotiations reviewed the list which included the names, job classifications, and seniority dates of DiPaola and Biteler. (Tr. at 101-102). Robert Baird, the Union's Chief Negotiator, testified that he received the list in October shortly after it was prepared in response to Union inquiries regarding seniority dates. (Tr. at 159-60).
In addition to the Company's October list, the Union independently prepared its own list during the October negotiations which included the respective job classifications and seniority dates of Biteler and DiPaola. (Company's Trial Exhibit "C", App. at 139a-142a). This list was given to the Company by William Pulfer, a member of the Union's negotiating committee and steward for the service building where Biteler and DiPaola worked. (Tr. at 102-108).
After the October seniority lists were exchanged, the parties compared and discussed them. Revised lists were prepared by the Company on December 12, 1973 and these, too, indicated that DiPaola had a higher job classification and less seniority than Biteler. Mr. Baird testified that he had the December 12th list in his possession on December ...