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MCCLENDON v. CONTINENTAL GROUP

October 6, 1986

Cecil McClendon, Don Vandertulip, Jimmie Catharn, and Konrad Trojanir, on their own and on behalf of all others similarly situated, Plaintiffs,
v.
The Continental Group, Inc., a New York corporation incorporated in 1913; Continental Can Company, Inc., a Delaware corporation; The Continental Group, Inc., a New York corporation incorporated in 1982; and KMI Continental Inc., a New York corporation, Defendants



The opinion of the court was delivered by: SAROKIN

 The four named plaintiffs, all former employees of the defendants who were laid off prior to becoming eligible for certain employee benefits embodied in a collective bargaining agreement, bring this action on behalf of themselves and all others similarly situated. Plaintiffs allege that defendants have violated Section 510 of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1140, and the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c) and (d). The predicate acts underlying the RICO allegations are mail fraud, 18 U.S.C. § 1341, and wire fraud, 18 U.S.C. 1343.

 Before the court is defendants' motion to dismiss the complaint. The question presented is whether the plaintiffs must exhaust the arbitration remedy contained in the Continental-United Steelworkers collective bargaining agreement before they may litigate their ERISA and RICO claims. This court has held previously that such exhaustion was not required for the ERISA claims. McClendon v. Continental Group, Inc., 602 F. Supp. 1492, 1500-06 (D.N.J. 1985). In light of the Third Circuit's recent decision in Jacobson v. Merrill Lynch, Pierce, Fenner & Smith, 797 F.2d 1197, slip opinion (3d Cir. 1986), the court requested briefing and further argument on the arbitrability of all claims.

 The court, after thorough consideration of Jacobson, denies defendants' motion to dismiss as to both ERISA and RICO claims.

 DISCUSSION

 Jacobson held that "RICO claims predicated on mail and wire fraud are arbitrable." at 1203. The court, in so holding, adopted the framework for determining the arbitrability of statutory claims set forth by the U.S. Supreme Court in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985). The Mitsubishi Court approved of a two step inquiry: (1) "whether the parties' agreement to arbitrate reached the statutory issues" and (2) "whether legal constraints external to the parties' agreement foreclosed the arbitration of those claims." Id. at 3355.

 The first step of the Mitsubishi analysis, essentially that "a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit," is well established. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960); see, e.g., DelGrosso v. Spang and Co., 769 F.2d 928, 933 (3d Cir. 1985). The novel holding in Mitsubishi, and the basis for the Third Circuit's decision in Jacobson, is that a party who has agreed to arbitrate must do so "unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue." Mitsubishi, 105 S. Ct. at 3355. Thus, a statutory claim is "arbitrable" -- that is, capable of being subjected to arbitration by the parties' prior agreement -- unless there is a congressional intention, "deducible from text or legislative history," to the contrary. Id.

 Following the dictates of Mitsubishi and Jacobson, this court first must examine whether plaintiffs' statutory claims fall within the arbitration provisions of the Continental-USW collective bargaining agreement. The court finds that plaintiffs' claims fall outside the reach of these provisions.

 Initially, the court takes note of plaintiffs' argument that the Continental-USW arbitration agreement, regardless of its scope, was induced by fraud. Mitsubishi counsels that "courts should remain attuned to well-supported claims that the agreement to arbitrate resulted from the sort of fraud . . . that would provide grounds" for revocation of the contract. 105 S. Ct. at 3354. Two federal judges in related cases have found that Continental had concealed the capping program from its employees. Plaintiffs argue that any agreement by the union to arbitrate claims regarding the capping program was fraudulently induced by defendants' concealment. The court does not reach this argument given its holding that the arbitration provisions do not encompass plaintiffs' statutory claims.

 The court moves to the first step of the Mitsubishi-Jacobson analysis -- determination of whether plaintiffs' claims fall within the arbitration provisions at issue.

 The court is mindful of the federal common law presumption in favor of arbitrability when construing a collective bargaining agreement. See United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960) ("Doubts should be resolved in favor of coverage."); see also Schneider Moving & Storage Co. v. Robbins, 466 U.S. 364, 104 S. Ct. 1844, 1848-49, 80 L. Ed. 2d 366 (1984) (restating the Steelworkers presumption). *fn1" Notwithstanding the strength of this presumption, the court recognizes that "as with any other contract, the parties' intentions control." Mitsubishi, 105 S. Ct. at 3354; see Warrior & Gulf, 363 U.S. at 582 ("[A] party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.").

 Two provisions in the collective bargaining agreement conceivably embrace plaintiffs' claims. Section 7.1(a) of the Continental - United Steelworkers pension agreement reads:

 Plaintiffs' claim that defendants engaged in an illegal capping program falls outside of this language. First, plaintiffs, as former employees, are not "applicants" for pensions. Nor are plaintiffs' claims differences "as to whether or not [an] Employee is entitled to" a pension. As Judge Bloch stated in the related Gavalik case, in holding that Section 7.1(a) does not embrace ERISA Section 510 claims, "The plaintiffs' claim is not that they have been denied their pensions, but that they have been denied the opportunity to eventually become entitled to a pension." Gavalik v. Continental Can Co., No. 81-1519, slip op at 1 (W.D. Pa. May 24, 1982); cf. Zipf v. American Telephone and Telegraph Co., 799 F.2d 889, slip op. at 6-7 (3d Cir. 1986) (distinguishing, for the purposes of exhaustion of administrative remedies, claims for pension benefits and Section 510 discrimination claims). Section 7.1(b) of the Pension Agreement supports this ...


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