Barone et al. v. Schick, Inc, 181 F.2d 47 (2d Cir. 1950)
Annotate this CaseDecided April 3, 1950
Several hundred plaintiffs, employees of defendant, brought this suit to recover unpaid amounts claimed to be due for statutory overtime under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. The defendant, relying on certain provisions of a collective bargaining agreement to which the plaintiffs and defendant were parties, moved for a stay of the suit pending arbitration of plaintiffs' claims. The district court entered an order denying the stay. From that order, defendant has appealed.
The pertinent provisions of that agreement read as follows: "Article V — Grievance Procedure. * * * 5.03. It is mutually recognized that a grievance as described by the terms of this Article does not exist until a request on the part of the employee has been rejected, or not settled satisfactorily by the foreman, in which event it shall become a grievance. The disposition of all complaints which have been adjusted by the foreman shall be made available to the Chief Stewards weekly. Any grievance or dispute which arises in connection with the application or interpretation of any of the terms or provisions hereof, or any dispute which arises in connection with a discharge, the propriety of which is challenged by the Union, shall be settled in accordance with the following grievance procedure:
"5.04. Should a grievance exist as provided by Section 5.03, it shall be reduced to writing by the employee and countersigned by the department steward on a form supplied by the Company. The foreman will write his answer thereon within twenty-four (24) hours and return the form to the department steward.
"5.05. The written grievance shall then be referred to the Chief Steward, who will either close the grievance and return it to the foreman or countersign it and refer it to the Personnel Director or his designated representative, within twenty-four (24) hours. Within one (1) week after receipt of the written grievance, the Personnel Director, or his designated representative, will meet with the Chief Steward in an attempt to settle the matters.
"5.06. If a satisfactory settlement is not reached, the grievance may be presented by the Executive Committee to the Management Committee at the next regular scheduled grievance meeting. Either party to this Agreement shall be permitted to call employee witnesses, submit evidence and pertinent Company production and payroll records will be made available at the conference for the purpose of substantiating the contentions or claims of the parties. When this step in the procedure is reached, either party shall have the right to call an outside Union representative to assist in an amicable settlement. Time limits as hereinbefore mentioned may be extended by mutual agreement.
"5.07. In the event any dispute as described in Section 5.03 discussed at the regular monthly meeting, or any special meeting between the Union Executive Committee and the Management Committee shall not have been settled or mutually deferred to a later date, then either party must notify the other in writing within thirty (30) days from said date of the meeting, of their intention to submit the grievance to arbitration, or the dispute shall be considered to have been satisfactorily settled. In the event the dispute is submitted to arbitration by the serving of the above notice, the Company and the Union shall each appoint one person; these two shall meet and shall agree upon the statement of the dispute and the selection of the arbitrator. If the Company representative and the Union representative fail to agree on the selection of the arbitrator within one (1) week, they must jointly request that an arbitrator be appointed by the American Arbitration Association, in which event the decision of the appointed arbitrator shall be final and binding upon both parties. The arbitrator shall not have the power to add to, delete from, amend or modify any of the provisions of this Agreement.
"5.08. The salary and expense, if any, of the arbitrator shall be paid jointly and equally by the Company and the Union.
"5.09. The Company and the Union agree that the decision of the arbitrator will be carried out within fifteen (15) days after a decision has been rendered.
"5.10. Any grievance involving money shall be retroactive only to the date the written grievance is submitted to the Company.
"5.11. No grievance will be discussed unless the procedure outlined has been followed.
"5.12. All complaints based upon alleged improper discharge or suspension shall be disposed of as quickly as possible, but no such complaint will be considered unless made to the Company within four (4) working days of such suspension or discharge. If discharge is found to be proper and the employee is reinstated he shall be paid from time of discharge.
"5.13. In the event the Company shall have a grievance against the Union, said grievance shall be presented to the Executive Committee and may be discussed either at a special meeting called for that purpose by the Company, or at a regular monthly meeting. If the grievance is not adjusted at this step, it shall be processed thereafter in accordance with the next step of the Grievance Procedure."
Pullman & Comley, Bridgeport, Conn., J. Kenneth Bradley, Bridgeport, Conn., and Dwight F. Fanton, Bridgeport, Conn., of counsel, for defendant-appellant.
Sigmund L. Miller, Bridgeport, Conn., Jerome Y. Sturm, New York City, Abraham Fishbein, New York City, for plaintiff-appellee.
Before SWAN, CLARK and FRANK, Circuit Judges.
FRANK, Circuit Judge.
In the agreement, the sole reference to arbitration is found in Article V. That Article provides that "Any grievance or dispute which arises in connection with the application or interpretation of any of the terms or provisions hereof" [i. e., of the agreement] * * * shall be settled in accordance with the following grievance procedure." That "procedure" includes the following: If a grievance exists, "it shall be reduced to writing" by the employee and countersigned by the department steward; the foreman is then to "write his answer." The "written grievance" then becomes the basis of an attempted settlement. If not settled, "either party may notify the other," within a specified period, "of their intention to submit the grievance to arbitration." Article V explicitly states: "No grievance will be discussed unless the procedure outlined has been followed."
The record contains nothing to show that any grievance, constituting any of the claims here sued upon, was ever "reduced to writing." As to no such claim, then, did the "grievance procedure" ever become operative. Accordingly, as to no such claim could the arbitration clause become potentially active, since that clause is but a part of the "grievance procedure" which can be set in motion in no other way than by a written statement of a grievance.1 On that ground, all else aside, the denial of a stay was proper. We therefore do not consider the applicability of the federal and Connecticut arbitration statutes.
Affirmed.
Moreover, the claims here were for unpaid instalments, so that there is applicable this provision: "Any grievance shall be retroactive only to the date the written grievance is submitted to the government."
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