3 Mass. App. Ct. 258 | Mass. App. Ct. | 1975
This is an application by the plaintiff (the company), filed in the Superior Court under G. L. c. 150C, § 11, to vacate an award made by the board of conciliation and arbitration (board) — see G. L. c. 23, § 7 — in an arbitration between the company and the defendant (union), parties to a collective bargaining agreement which provided for arbitration by the board as the final step of a grievance procedure.
The facts out of which the grievance arose, as found by the board and substantially uncontroverted, are as follows: On December 29, 1972, one Ernest Currie, an employee of the company, was assigned to work on the 8:00 a.m. to 4:00 p.m. shift on December 31. He was also asked to work the following shift from 4:00 p.m. to midnight. After changing his New Year’s plans, he agreed to do so. He was thus scheduled to work two eight-hour shifts “back to back” on December 31, extending through New Year’s Eve. At about 10:00 a.m. on December 31, while working on the first of the two scheduled shifts, he was notified that he would not be needed to work the later shift. He claimed he was en
The board, with the industry member dissenting, “after having weighed the evidence and arguments of the parties,” made the following award: “The Company violated the agreement between the parties relative to the grievance of Ernest Currie dated January 1, 1973____The Board directs that Ernest Currie be awarded 8 hours pay at the appropriate rate for the shift cancelled on Sunday, December 31, 1972.” The company’s application to vacate the award was denied in the Superior Court, and judgment was ordered to be entered accordingly. The company appealed to this court. We hold that the Superior Court correctly refused to vacate the award.
The claim was based on the clause of the contract (Art. VI, § l[e]) insuring that “[ejmployees shall be assigned a definite time to report for work” and providing for advance notice of lack of work and a guarantee of eight hours’ work for any employee who reports at his regular time. The submission, made jointly by the parties, thus left to the board the question how, in the circumstances of this case, to deal with the frustration of an employee’s expectation of work for which he reported, and the resulting inconvenience. Looking to discover how this not uncommon irritant — the subject matter of Article VI, § 1(e) — had been handled by the parties, the board found that “the evidence regarding past practice reveals that the company has either paid for or provided 8 hours work for those employees who reported before they were notified of the cancellation of their extra or overtime work.”
The company argues that in dealing with this submission the board was limited by subclause [a] (see fn. 1, supra), which provides that the board may not “add to... or modify any of the terms of this Agreement” — a contention
In United Steelworkers of America v. American Mfg. Co. 363 U. S. 564, 565, and fn. 1 (1960), the court referred to an arbitration clause containing just such a subclause as “a provision for arbitration (regarded as the standard form) of all disputes between the parties ‘as to the meaning, interpretation and application of the provisions of this agreement.’ ” The court pointed out, without dealing explicitly with this subclause (p. 567): “Yet, the agreement is to submit all grievances to arbitration — There is no exception in the ‘no strike’ clause and none therefore should be read into the grievance clause, since one is the quid pro quo for the other.” In our case, too, in which the contract binds the parties to arbitrate “any difference... between the Company and the Union or its members as to the meaning and application of this Agreement” (see fn. 1, supra) and contains a no-strike clause, the board was empowered to deal with the “subject submitted to” them. Trustees of the Boston & Maine Corp. v. Massachusetts Bay Transp. Authy. 363 Mass. at 391. Western Iowa Pork Co. v. National Bhd. Packinghouse & Dairy Wkrs. 366 F. 2d 275, 278 (8th Cir. 1966). Humble Oil & Ref. Co. v. Local 866, 447 F. 2d 229, 233 (2d Cir. 1971).
The company also seems to argue that subclause [a] (see
The company’s minute dissection of the board’s opinion is adequately answered in Morceau v. Gould-National Batteries, Inc. 344 Mass, at 124, where the court said, “[M]ere ambiguity in the opinion is npt a reason for refusing to enforce the award, even when it permits the inference of a want of authority” — citing United Steelworkers of Amer
Thus the company’s criticism of the board’s opinion is without merit. If anything, it demonstrates the futility of its attempted distinction between an erroneous interpretation of a contract term and an addition to a contract term. Whatever may be the value of this distinction in other contexts (see West Coast Tel. Co. v. International Bhd. of Elec. Wkrs. 431 F. 2d 1219, 1221 [9th Cir. 1970]), in this case it makes no functional difference and is merely semantic.
Order for judgment denying application affirmed.
Article XVI of the agreement, “Settlement of Disputes,” provides in pertinent part: “Should any difference arise between the Company and the Union or its members as to the meaning and application of this Agreement, the dispute shall be settled finally in the following manner: ... 3. If an agreement is not reached with a Vice President of the Company or his designee, the dispute shall then be referred to the Massachusetts Department of Conciliation and Arbitration .... In all matters referred to the Massachusetts Department of Conciliation and Arbitration, as prescribed above, the decision of the Board of Arbitration shall be final and binding on both parties, provided no Board of Arbitration or arbitrator shall have the power to add to, or subtract from, or modify any of the terms of this Agreement, or to pass upon or decide any question except that which is submitted to them in the Submission Agreement.” The italics are added for convenience, and the italicized portion will be referred to as subclause [a].
The board did not find a prior practice in the apparently isolated instance, mentioned in its opinion, in which another employee scheduled to work two consecutive shifts was not paid for the second shift when notified of its cancellation while working on the first shift. Further, there was no indication in the record of any particular incon
We do not intend to imply that the board interpreted the clause improperly. See Hannan v. Enterprise Publishing Co. 341 Mass. 363, 365 (1960).
The court distinguished Torrington Co. v. Metal Prod. Wkrs. Union Local 1645, 362 F. 2d 677 (2d Cir. 1966), cited by the company, which held that the arbitrator went beyond his authority in ruling that an employer was required to give its employees election day time off because the subject had been a matter of negotiation and was omitted from the contract. The court said (p. 233): “But [in the Torrington case] the final agreement itself contained no provision remotely bearing on employee rights for election day time off.”
We are not to be understood as approving the Torrington case. There was a strong dissent (362 F. 2d at 682-684), and the case has been disapproved in, e.g., Holly Sugar Corp. v. Distillery, Rectifying, Wine & Allied Wkrs. Int’l Union, AFL-CIO, 412 F. 2d 899, 905 (9th Cir. 1969); Dallas Typographical Union No. 173 v. A. H. Belo, 372 F. 2d 577, 583 (5th Cir. 1967), and by various commentators: Christensen, Labor Arbitration and Judicial Oversight, 19 Stan. L. Rev. 671, 690-693 (1967); Meltzer, Ruminations About Ideology, Law, and Labor
Our disposition of this case on its merits makes it unnecessary to deal with the procedural issues argued by the union. See Massachusetts Nurses Assn. v. Lynn Hosp. 364 Mass. 502, 504 (1974). It is questionable whether they have a basis in the record or were seasonably raised. If necessary, such difficulties as there may be can be cured by amendment in the Superior Court.