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TELEPHONE WORKERS UNION, LOCAL 827 v. NEW JERSEY B

September 8, 1977

TELEPHONE WORKERS UNION OF NEW JERSEY, LOCAL 827, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO and Bertha Biel, Plaintiffs,
v.
NEW JERSEY BELL TELEPHONE COMPANY and Equal Employment Opportunity Commission, F. Ray Marshall, Secretary of Labor, and the United States of America, Defendants



The opinion of the court was delivered by: LACEY

 This matter is before the court on the parties' cross motions for summary judgment.

 This is an action by plaintiffs Telephone Workers Union of New Jersey, Local 827, International Brotherhood of Electrical Workers, AFL-CIO, [both hereinafter referred to as "Union"], and Bertha Biel against defendant New Jersey Bell Telephone Company [the Company], pursuant to section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, seeking specific enforcement of an arbitration award.

 The Equal Employment Opportunity Commission [EEOC], F. Ray Marshall, Secretary of Labor, and the United States moved, on April 11, 1977, for leave to intervene as parties defendant, which motion was granted.

 The material facts in the case are not in dispute.

 The Union, as the recognized collective bargaining representative of all non-supervisory employees in defendant's Plant and Engineering Departments, entered over the years into successive agreements with the Company covering the wages, hours and conditions of employment of such employees, one of whom was plaintiff Biel. The current agreement runs from July 21, 1974 to August 6, 1977. Its predecessor ran from May 29, 1971 to July 20, 1974. The events giving rise to this proceeding began under the earlier agreement and continued into the current agreement. All contract provisions pertinent to this case are identical in both agreements. Such provisions appear in their entirety in Exhibit B of the Complaint.

 The agreements set forth job titles and their negotiated rate of pay. Involved in this case are the job titles of "Records Clerk" and "Operations Clerk."

 In 1958 the Company employed persons in the capacity of "Construction Clerk." This title existed until 1963 when it was changed to "Operations Clerk." The duties and responsibilities, however, remained the same. They include generally the performance of clerical functions associated with the construction forces such as record keeping, answering calls, dispatching, and operating a message center. Transcript of Arbitration Proceeding, Defendant's Brief, Exhibit B, at 74-76. The title is one to which lower rated employees, including "Records Clerks," are promoted. Transcript at 83.

 On March 29, 1973 plaintiff Biel, a records clerk, applied for promotion to a higher paid job when the position of operations clerk opened. She was initially employed by the New York Telephone Company in 1963. She worked there until 1968 when she was transferred to the Company where she worked as a repair service clerk and a records clerk in Atlantic City. Transcript at 193.

 On October 29, 1973 the Company filled this opening by hiring a white male, Everett, "from off the street." Transcript at 197.

 During the period 1955 through 1958 the Company hired a substantial number of persons into higher rated jobs. Contract negotiations between plaintiff Union and the Company took place in 1958. Because of extensive hiring into higher rated titles, plaintiff Union demanded that the Company agree to promote entirely from within the bargaining unit from the lowest title progressively into the higher titles. Transcript at 76, 77. The Union's demand as stated in the minutes of the 1958 negotiations is as follows: "The Union wants the assurance that its members will be provided job opportunities before applicants or less senior employees are given them." This was received in evidence as Company Exhibit 3 in the arbitration proceeding. See Exhibit E.

 The Company denied the Union's demand and the contract was signed without granting the Union's request. Transcript at 79.

 Thereafter, the Company unilaterally formulated and implemented a Trial Hiring Plan. Defendant's Brief, Exhibit F. This was received in evidence in the arbitration proceeding as Company Exhibit 2. This was presented to the Union after negotiations had been agreed to and signed. Transcript at 79. By the terms of the Trial Hiring Plan the Company advised the Union that it would, on a trial basis:

 
1. Upgrade qualified employees from lower graded titles giving due consideration to ability, aptitude, attendance, physical fitness, proximity to assignment and seniority.
 
2. Hire directly into higher rated titles if there are no employees in lower rated titles who are qualified in management's opinion and who had one year in the present title.
 
3. Otherwise promote lower graded titles including construction clerk (which title was later changed to operations clerk).

 The Trial Hiring Plan lasted until 1966. During this period the Company followed the procedures set forth therein and generally promoted from within before hiring "off the street." Transcript at 85.

 Contract negotiations also took place in 1966. During these negotiations the Union, acknowledging that the Trial Hiring Plan did not have the status of an agreement, proposed to incorporate it into the contract. As in 1958, the Company rejected the Union's demand. Transcript at 89. Although the Trial Hiring Plan as such ended in 1966, the Company continued to follow its procedures. However, it continued to hire extensively into higher graded jobs after 1966. Although negotiations took place in 1968, 1971 and 1974, there were no further discussions of this subject.

 Article XV of the Collective Bargaining Agreement [Agreement], entitled "Seniority in Promotions," Complaint, Exhibit B, at 19-20, provides in section one that: "When selecting employees for promotion to jobs within the bargaining unit . . . the company will consider ability, aptitude, attendance, physical fitness for the job, and proximity to the assignment." This section goes on to say that if these qualifications "are substantially the same as between two (2) or more individuals," the senior employee shall be offered the promotion. The term "net credited service" is "seniority."

 Section three of this article states that: "The provisions of Section 1 . . . shall not apply . . . to those hired on a temporary basis," thus applying to those hired on a permanent basis only.

 Section four of Article XV calls for arbitration of unresolved disputes regarding the application of section one but " the decision of the company shall be controlling unless the company is shown to have acted arbitrarily or in bad faith."

 Article XI, Complaint, Exhibit B, at 17, is the "Arbitration" clause. It lists the subjects which are arbitrable and includes among them Article XV, section four. Section two of Article XI defines the scope of authority of the Board of Arbitration:

 
The Board of Arbitration in its decision shall be bound by the provisions of the Agreement and shall not have the power to add to, subtract from, or modify any provision of this Agreement.

 In the Agreement at 98-100 appears the "Procedure for Arbitration." Section one describes the method of selecting the Board of Arbitration. Section two provides that:

 
The decision of a majority of said Board of Arbitration shall be the decision of the Board of Arbitration. Such decision shall be final, and the Union and its members and the Company agree to abide by such decision, which shall be enforceable by appropriate action or proceeding, if necessary, in a court of law or equity or otherwise.

 The final Article having some relevance here is Article XVII, entitled "Nondiscrimination," Complaint, Exhibit B, at 22, the pertinent portion of which states:

 
Neither the Company nor the Union shall unlawfully discriminate against any employee because of such employee's race, color, religion, sex, national origin or age.

 In 1970 the Equal Employment Opportunity Commission intervened in an application by American Telephone and Telegraph Company [A.T.&T.] for a rate increase before the Federal Communications Commission. It contended that the rate increase should be denied as the operating companies systematically discriminated against females and minorities.

 During proceedings before the Federal Communications Commission, A.T.&T. and its subsidiary companies, including the Company, were charged with employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ; the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. ; the Equal Pay Act of 1963, 29 U.S.C. § 206; and Executive Order No. 11246, 3 C.F.R. 11246 (Supp.1973). During the course of these proceedings 60 days of hearing were held and over 8,000 pages of testimony and records were introduced by the EEOC with respect to the Bell Companies' employment practices.

 During 1972 the Union and the Company met to discuss these proceedings. At a May 1972 meeting the Union was advised that the Company would mostly hire into entry level jobs but reserved the right to hire into above entry level jobs. Another meeting was held in October 1972 in which the subject of goals was again discussed with the Union. Transcript at 240, 241. The Union did not seek to intervene in the proceedings pending before the Federal Communications Commission. The Union appears to have been aware of the proceedings. Judge Higginbotham, in his decision in Equal Employment Opportunity Commission v. American Telephone and Telegraph Company, 365 F. Supp. 1105 (E.D.Pa.1973), modified, 506 F.2d 735 (3d Cir. 1974), stated that he determined that discussions concerning settlement of the proceedings took place between attorneys for the International Brotherhood of Electrical Workers [IBEW] and EEOC, which discussions concerned the impact of any possible settlement or litigation on the interest or expectations of IBEW's membership. Judge Higginbotham noted that there were approximately 20 telephone conversations between IBEW and EEOC and Company representatives between September 29, 1972 and February 17, 1973. He also found that several meetings took place with representatives of the IBEW at its request during later stages of negotiations between the Office of Federal Contract Compliance and American Telephone and Telegraph Company. Id. at 1115.

 Concurrent with the litigation, the government plaintiffs and A.T.&T. on behalf of the Company conducted settlement negotiations that resulted in a Memorandum of Agreement between the parties and a Consent Decree, entered by the United States District Court for the Eastern District of Pennsylvania on January 18, 1973. *fn1"

 Under the Consent Decree A.T.&T., including defendant, agreed to implement a model affirmative action program for the purpose of providing equal employment opportunity. The Decree contained a non-admission clause. Defendant was required to analyze eleven non-management classifications including job class 11, the job class involved in this proceeding, to determine relative distribution of minorities and women. Where under-utilization existed, the defendant was required to set a goal to increase the number of minorities, females and males. The Company was also required to establish intermediate targets for one-, two- and three-year time frames. With respect to meeting goals and timetables, the concept of an override is utilized. This applies where, in order to meet an intermediate target for an under-utilized race or sex available to fill the position, the defendant must necessarily promote one who is not the most senior or hire a member of the under-utilized race or sex. Transcript at 231, 232.

 The Company was to evaluate candidates for promotion and hiring on the basis of applicable selection criteria provided in existing collective bargaining agreements. However, to the extent that defendant was unable to meet its intermediate target in job classifications 5-15 using these criteria, the Decree required that, except for job classifications 9 and 10, selections were to be made from among any basically qualified candidates for promotion and hiring in the group or groups for which the targets had not been met. The Decree states that it shall not be interpreted as requiring the abandonment of any provision of the collective bargaining agreement except as required by federal law. It specifically permits collective bargaining negotiations to reach mutually acceptable alternatives which comply with federal law. In pertinent part, the Consent Decree in Part A, Section II, at 5 provides:

 
The foregoing utilization analysis, goals, intermediate target and time frames shall also be developed for males in the operator and clerical classifications as ...

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