James Belk v. Allied Aviation Service Company of New Jersey, Inc.
315 F.2d 513
2d Cir.
1963
Check Treatment

*1 MOORE, P. LEONARD Circuit Judge. Belk, Plaintiff James a resident of New employed by York, was Allied Aviation Jersey, Service of New Inc. Sky (Allied) Cap as a Porter at Airport, Newark, Municipal Jersey. New He is a member Local 297 of the Unit- Transport Employees (the Service ed recognized bargaining agent Union), the plaintiff, and is to a collective bargaining contract between Allied and working September the Union. While on 29, 1961, Belk received a letter termi- nating giving his without services him required as under the terms of cases the contract. any effort to Without obtain redress discharge through Union, brought directly against suit Belk Allied the Southern District New York damages alleged Jurisdiction was founded on breach. diversity citizenship. be- The Court granted defendant’s motion to low appeals. miss and Belk *2 provisions further that since the Union contends The contractual disputes contained does the until the not enter of the settlement agreement.1 Company made determination of has 20 of the collective Article hearing and, no his the provides summary that status after a since In that article only request for Union it can if employee in service who been has unfair, ninety feels that decision is recourse without the days dismissed will be hearing the to arbitration the before Union before impartial fair and unnecessary only suit is fore- stages but is this employer. The initial by closed no such prosecuted under the contract since grievance procedure are hearing although is en determination been himself, he after employee the repre made. presence his Union titled the The contract desires. if he so sentative coverage The broad and of the intent feels Union if the that further states adjustment” contract seek “amicable Company’s determina ultimate that the litigation apparent instead of court Company unfair, Union and the opening from the of the Article clause issue, and the to settle reading, shall endeavor Lockout”, 21: “No Strike —No may failing arbitra demand either this agreement provides “As the tion. adjustment any amicable and all * * putes argues grievances, As- Appellant failure and that the hearing suming give made him that failure to offer the entitling 20(d) specific agreement him the of Article the a breach of 20(e) provides He damages unavailable, Article that: in a suit agreement charge service, if held he and from the 20 of the collective Article compensated will reinstated be and as follows: reads Investiga- wage loss, any, by Discipline the if him. and suffered “Article 20.— compensation Such will be the amount he tion. Company, employee earned the in serv- have from has been No who “a. compensation ninety days (90) less received in other em- will be disci- ice for ployment. plined and im- without fair or dismissed However, employee hearing. partial “d. If the Union feels the decision parties agree they immediately pending unfair, suspended may the shall be good employee investigation. endeavor in Failing faith to settle issue. the The accused such may settlement, party writing precise either the will be advised by days, desig- against (5) charge demand arbitration an arbitrator five him within by holidays, nated the Federal Mediation and after the date Con- exclusive Service; hearing party occurrence, ciliation the other must will be and a the agree thereto, days (5) and the decision the and award from date within five hearing of said arbitrator shall final be bind- the em- notice. At written ing parties. any represen- ployee may present The cost of be and have any, choosing. equally if will shall be be borne of his own He tatives permitted by parties against him hereto. all evidence to hear involving “e. aWhen or claim all state- witnesses and/or application, construction, interpreta- against him. A decision ments performance writing (5) tion or within five rules of this will be rendered in agreement occurs, parties days completed. agree Rea- after good opportunity faith, shall endeavor in be first will allowed em- sonable adjust disputes presence rep- ployees and settle such to secure of their between hearing. obliga- Failing resentatives, themselves after a fair shall be the it adjustment management such themselves, or settlement to summon all wit- tion of may party pre- either demand whom the feels can ar- nesses by designated weight by bitration an arbitrator lend facts which will sent testimony. the Federal Mediation and Conciliation Service; transcript party agree the other A written must “b. be made thereto, hearings and the decision and discretion award of of all at the of the em- ployee management binding said arbitrator shall upon final and the be at their own parties. respective The cost of costs. arbi- tration, any, equally by shall be borne “c. If the decision is favor of the hereto.” his record will be cleared of the by involv- “When a claim decided arbitrator and Livingston construction, Wiley application, in- the court. v. John Sons, 11, 1963). terpretation performance Inc., (Jan. 313 F.2d 52 given occurs, the What effect is rules of this this breach *3 agree employer, parties en- the that shall whether the arbitrator adjust good give faith, require would in first that the deavor hearing Beik disputes between a and such find settle he would hearing. jurisdiction discharge a fair to deal with themselves after this adjustment Fáiling questions settle- merits are all that the such themselves, par- contemplates contract either ment between will be submitted by ty may an ar- arbitration arbitrator. demand designated by Federal the bitrator being case, remaining This the the Service; and Conciliation Mediation question is the effect of the arbitration agree thereto, party the must other right clause on the individual’s to sue said and award of and the decision for breach of a Since this is binding shall be final and arbitrator diversity case, question there is no any parties. The cost the jurisdiction this court’s to entertain this any, (cid:127)arbitration, be borne shall so, action. Even were this not the Su- by parties equally the hereto.” preme Evening in Court Smith News Although preliminary procedures the Association, 195, 267, 83 S.Ct. prose- prescribed in the this contract for by (1962), L.Ed.2d held that suits wrongful discharge eases of cution of cognizable individuals are in the federal unusual, over be somewhat a addition, courts under Section In Company’s the of the notice and breach Court held that all such suits are to hearing provisions constitutes a governed by However, be federal law. involving “performance rules of opinion the in that case indicates in no agree- agreement.” Any this collective uncertain terms the Court was not rights for ment intended to in- secure striking down arbitration in favor of employees; dividual by employees suits individual in the discharge merely examples of after are specifically said, courts because the Court rights. They from no different grievance “There was no arbitration seniority, respect provisions with vaca- procedure in this contract which had to pay. overtime Under broad tions or be exhausted before recourse could be above, set contro- out arbitration clause 196, 1, had to the courts.” 371 U.S. n. concerning these matters were versies 271, comparison and invited S.Ct. with clearly to arbi- intended its recent decisions Atkinson v. Sin- agreed upon in the contract. tration as Refining 238, clair 370 U.S. 82 S.Ct. alleged in too breach of contract So 1318, 462, Bakeries, and Drake this case. Bakery v. Local American Work- Inc. ers, procedure a matter of rather That U.S. S.Ct. 8 L.Ed. Conversely, if, here, involved is of than one of substance 2d 474.2 there is recently significance. fact, grievance In provided no we arbitration compliance question for, with the that the procedural prerequisites there should recourse to it before permitted the individual bring in the set forth collective court action. argue also it was 2. The Court made clear does not here and not con- we need only deciding jurisdictional question sider the of federal law of wheth- resolving petitioner, contract, the issue of substantive er under rights standing con- of individuals to Union for breach to sue of the no-dis- tracts. The Court stated that: crimination clause nor do we deal only part bargain- standing employees up- “The of the collective of other to sue set on other contract out this record is the clauses other contracts.” Respondent 195, 201, U.S. n. no-discrimination clause. by agreements snugly Supreme one virtue of Eve Court do not fit into agree- category. example, ning committed the federal For a collective News has now body fashioning em- en ment is courts of law made for the benefit ployees (at rights part), compassing con third of all least in but a party beneficiary process. con- is not State bound cerned in the courts, beneficiary party least tract under courts at usual third lower federal Certainly diversity cases, rules. labor numerous commenta such rule in might struggled con field lead to tors have heretofore well chaos and legal theory totally adequate purpose deal be struct an inconsistent with the agreements. relationship employee, of such Union, employer bar *4 try juncture Legal We not Cox, need at this gaining The See Bargaining Agree problems to resolve all these even assum Nature of Collective ments, They ing (1958). (which not) 1 we do a hercu 57 Mich.L.Rev. that such theory possible third with the of a lean effort case have flirted party beneficiary were because the finding contract, require with a before us does decide We it. only agency relationship union of an that where the collective application provides arbitration'by of the for the Union suit, dis principles employee’s of trusts. law See of the matter of employee in Association cussion of these theories the tially must look to his ini union Westinghouse Employees rights.3 v. Salaried the vindication of his Westinghouse Corp., every 210 F.2d employee Electric If is to insti be free to 1954), (3d Cir., directly against 623, aff’d 348 625-627 tute suits his 489, 437, every 99 510 U.S. 75 S.Ct. L.Ed. incident which to be he claims (1955). right of these use of one Strict a col violation some under the analogies bargaining dif agreement, insurmountable leads to lective little bene arising ficulties, primarily gained by any fact from the fit agreements representation that collective either from union ar generis. large degree sui That remedy to a bitration clauses. Where lies say prosecute resort to established when his refuses to union principles cannot of law in these areas claim we leave future cases only useful, but that these at times arise.4 See, g., & Western e. Transcontinental tative is duty is a not absolute and that there 653, Air, Koppal, S. fairly represent v. 345 U.S. 73 Inc. E. all members. (1953) (applying 906, g., Co., Ct. 97 L.Ed. 1325 Steele v. Louisville & N. U. R. 323 Ostrofsky law) ; 226, ; v. United Steel 192, (1944) Missouri workers, S. 65 S.Ct. 89 L.Ed. 173 F.Supp. (D.Md.1959), 782 171 Tunstall v. Brotherhood of Locomotive denied, (4th Cir.), cert. Firemen, 210, aff’d F.2d 235, 273 614 323 65 89 U.S. S.Ct. 1628, 849, 4 S.Ct. L.Ed.2d (1944). See, also, U.S. 80 363 L.Ed. 187 Clark v. ; (1960) v. United 1732 Guszkowski Corp., 268, 264, 99 Hein-Warner 8 Wis.2d Corp., F.Supp. Trucking 162 847 States (1959). 132, N.W.2d However, 100 N.W.2d 317 ; Voges, (D.C.N.J.1958) States United v. the Union allowed a certain ; F.Supp. (E.D.N.Y.1954) 124 543 Park bargaining, measure of discretion Ford 156, Borock, 5 N.Y.2d 182 N.Y.S.2d er v. Huffman, 330, Motor Co. v. 73 S. (1959) ; 577, N.E.2d 297 Mellow 156 v. (1953). Ct. 681. 97 L.Ed. 1048 and in de 60, 4408, termining 82 R.I. prosecute Local 105 A.2d 806 griev Cox, Rights generally (1954). ances, See Under Hildreth, Union News Co. v. 295 Agreement, 601, Cir., Labor 69 (6th 1961) ; Harv.L.Rev. F.2d 658 Cortez v. minority (1956). A of courts Co., 645-655 108, Ford Motor 349 Mich. 84 N.W. contrary. See Woodward have held (1957). 2d Some 523 courts are of the Ware, (5th Cir., F.2d 138 Iron Co. v. view can sue the em 1958) ; Co., Tire & In re Norwalk Rubber ployer where Union has acted an ; F.Supp. (D.C.Conn.1951) Ala arbitrary discriminatory manner, see Haygood, v. bama Power Co. 266 Ala. Ostrofsky Steelworkers, supra, v. United 194, (1957). So.2d Schluderberg T. n. Jenkins v. Wm. J. Supreme Kurdle 217 Md. 4. The Court indicated that A.2d 88 authority bargaining represen- (1958) ; Pattenge Wagner cf. v. Iron

5J7 harmony employer, complete could both This harass Bakeries, employer by v. Local union process Inc. and the Drake Confectionery ing grievances Bakery through American Workers, supra. the various steps grievance ac- There the provision ultimately by bringing tion for no-strike breach action holding dismissed, compel was the Court face of alleged breach was clear contractual arbitration of intended rejected prerequisite remedy suit. The Court channel the enforcement argument no-strike that breach of the union.” Black-Clawson quid pro quo clause, Co. viewed as the often International Association of (see provision Machinists, Textile Cir., (2d for the arbitration 313 F.2d 179 Mills, 22, 1962).” v. Lincoln Workers Union Dec. 448, U.S. Affirmed. ground (1957)), 972 avoiding sufficient Company’sduty to arbitrate. CLARK, Judge (concurring Circuit Refining Co., supra, Atkinson v. Sinclair result). in the Supreme apply Court does not here. *5 noncompliances Of proce course with merely arbitra- there that since dural of the arbitration question only in allowed the clause bargaining agree clauses in collective request employer Union arbitration, subjects ments should be of arbitration. duty on had Livingston See Wiley Sons, v. John bringing resort to arbitration before Cir., 52; 2 Carey 313 F.2d v. General suit for breach. Co., Cir., 499; Note, Electric 2 315 F.2d import of the Su The entire Requirements Procedural of a Grievance beginning preme with Lin Court cases Question Arbitration Clause: Another through trilogy Mills, coln Arbitrability, of (1961). 70 Yale L.J. 611 cases at their last Steelworker to Drake problem me is that Black-Claw agreed term is that when son Co. v. International Asso. of Ma upon parties, method the best Lodge 355, 137, Cir., chinists Dist. 2 arising disputes out for reconciliation of 313 F.2d closed to individual em agreements. of ar collective Where ployees provision (see sort Article bitration construction clause admits of a agree bargaining 20.e of the collective including within ment, quoted majority in note 1 of the ambit, its any before recourse to the courts opinion) my up which brothers now hold process the effort is made to to this as their reason for re looked arbitration is to be fusing I entertain his case. would recently: As we said disfavor. preferred have em the individual represents ployee solely union the em- “The should not be left negoti- ployees purposes mercies of his and his union. ating enforcing Summers, Rights the terms See Individual in Col agreement. bargaining Agreements Arbitration, collective lective 37 bring- (1962). This is the modern means N.Y.U.L.Rev. 362 For have we peace years that, cases, about and chan- industrial seen recent in some neling intra-plant harmony develops the resolution of sweet between the two disputes. proves Chaos if lockout the soli bitter every every employee, tary employee disenchanted who finds his contractual rights every going unprotected. em- disturbed Here Belk was flagrant ployee for dismissed in violation of who harbored a dislike Article Dept.), Works, (3rd N.W.2d 172 aff’d Wis. 2d 709 306 N.Y. say remedy (1954). Compare Cox, (1957). sole 120 N.E.2d supra, Others Borock, Summers, against v. Individual Union. See Parker note 3; Agreements Rights supra, Donato American Loco and Arbi note Collective App.Div. tration, (1962). motive 127 N.Y.S. 37 N.Y.U.L.Rev. agree- say the ment, and it remains doubtful redress have

least he will ever wrong eventual

of this in the event he is more

reinstatement even

reinstated. appar- But the law of the circuit contrary, ently been determined my join brothers’ and so I shall adding only the

position case, yet hope act union that Belk’s wrong. rectify his McKelvey, York

William New plaintiff-appellant. Dannett, McGoldrick,Dan- Emanuel

nett, City Golub, Horowitz & York New (Herbert Schwartzman, D. of McGold- rick, Golub, Dannett, New Horowitz & Plaintiff-Appellant, ROGERS, David *6 brief), York appellee. for defendant- COM- AVIATION SERVICE ALLIED JERSEY, INC., NEW PANY OF CLARK, MOORE, KAUF- Before Defendant-Appellee, Judges. MAN, Circuit President, PER CURIAM. Langford and Jack Wadell Local Treasurer of Charlton as Rogers discharged un was Transport Service Em- United authorized absence from work. When ployees, Defendants. his pursuant was claim No. Docket 27734. agreement, Appeals the arbitrator Court of considered United States Second Circuit. past unexplained truancy instances of and on that basis concluded dis that the Argued Nov. Rogers charge cause. attacks Decided March scope of matters considered (specifically, previous

the arbitrator grounds absences) on we think frivolous. policy Certainly national labor militates allowing exceedingly wide discre toward arbitrators, United see Steelwork Enterprise America v. ers Wheel & Corp., Car 1424; furthermore, past in similar misconduct would seem stances assessing pertinent peculiarly the rea employer’s discharge of sonableness employee. an Affirmed.