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November 17, 1972


The opinion of the court was delivered by: Marovitz, District Judge.


Motion For Summary Judgment


Plaintiff, Automobile Mechanics, Local 701, International Association of Machinists and Aerospace Workers, AFL-CIO (Union) and defendant, Holiday Oldsmobile (Holiday) were parties to a collective bargaining agreement which became effective on November 1, 1969. The wage provision of the November 1, 1969 to October 30, 1972 contract changed the method of compensation for the employees in the body and paint shop from what was known as the 50-50 basis, in effect from 1966 to 1969, to a method whereby the employees were to be paid a set wage per each hour that it was estimated it would take the employees to repair the particular damaged vehicle.

We do not wish to elaborate on the specific mechanics and complex mathematics of the 50-50, the divide-by-factory (d.b.f.), and other methods of body shop compensation used, in view of the fact that the Arbitrator's findings in this case (Exhibit B, Plaintiff's complaint) more than adequately describes these methods. Shortly after the November 1, 1969 contract went into effect the Union notified Holiday that the employees were being improperly compensated under the contract. After almost a year of efforts at conciliation a grievance was filed with Holiday and the case proceeded to the binding arbitration provided for under Article VIII of the agreement.

On December 17, 1971 the Arbitrator found that the body shop employees had been improperly compensated and ordered Holiday to pay the employees their lost wages. The amount to be paid was to be resolved by Holiday and the Union with the stipulation that the Arbitrator would decide the amount of back pay if the parties failed to agree. Holiday and the Union were not able to come to terms, the Arbitrator reconvened the hearing, and on April 7, 1972 ruled that the employees were entitled to damages in the amount of $12,432.00 covering the improperly compensated period of December 1, 1969 to October 14, 1970. Holiday failed to comply with the Arbitrator's award and consequently plaintiff brought this suit to enforce the award.

The case is presently before this Court on cross motions for Summary Judgment.

Defendant seeks summary judgment in its favor on the grounds that: 1) the Arbitrator's refusal to postpone the hearing for March 18, 1972 although, Holiday's Manager, Edward Farrell, requested him to do so because he was scheduled to be out of the country was misconduct requiring his April 7, 1972 award to be vacated pursuant to 9 U.S.C. § 10(c); that the Arbitrator exceeded the scope of his authority by awarding damages for a period prior to October 2, 1970, by using an improper formula in determining damages and by rendering his award 90 days after the filing of the complaint.

Plaintiff's motion for summary judgment is based primarily on contentions the converse of those raised by defendant in its motion and there is a great deal of interplay between the briefs filed in support, in opposition and in reply to the respective motions all addressing themselves to the same dispositive issues. Consequently the two motions and their accompanying briefs are best treated as a whole and will be dealt with jointly.


Holiday in its motion claims that the Arbitrator was guilty of misconduct in refusing to postpone the hearing of March 18, 1972 upon sufficient cause shown. Following the failure of the parties to reach a damage figure under the December 17, 1971 Award the Union requested an additional hearing, a contingency provided for in the December award. The hearing was granted and was set for March 13, 1972, the Arbitrator stating at the time that "No continuances will be granted inasmuch as I will be unavailable except for the aforementioned date until the middle of November" (R-405). Despite this predilection against postponement, the March 13th date was changed to Saturday, March 18, 1972 to accommodate Mr. Farrell, General Manager of Holiday, who stated that he could not appear at the earlier date. In a letter to the Arbitrator dated March 14, 1972 Mr. Farrell stated that he could not appear on March 18, 1972 because he had to be out of the country. The Arbitrator did not receive the letter until March 18th, the morning of the hearing. Mr. Peters, Farrell's attorney requested another continuance at the hearing on March 18th. The Arbitrator refused to delay the hearing any further stating that he would be engaged in other arbitration matters for quite some time and would after that be out of the country. Defendant claims that this denial of a continuance constituted misconduct on the part of the Arbitrator since had Farrell been present he would have explained that the grievance only involved a period subsequent to October 2, 1970, that the grievance had not been damaged by the compensation method used by the company and that he would have guaranteed that the company would cooperate in the future.

We have examined the affidavits, the various documents and the transcript of the hearing on March 18, 1972 and find no merit to defendant's contention that the continuance was improperly denied. Farrell on previous occasions had inconvenienced both the Arbitrator and plaintiff's attorneys. It was not until the morning of the hearing that the Arbitrator became aware of the fact that yet another delay was being requested, as it turns out so that Farrell might have a brief vacation. Considering the foregoing we believe that it was completely within the Arbitrator's discretion considering his own prior commitments, his expressed desire to avoid any continuances and his previous flexibility in granting continuances to refuse to allow one individual to cause any further delay in the proceedings. A continuance, in view of the Arbitrator's schedule, would be tantamount to an 8-month delay and so great an inconvenience to the other parties involved, including the employees who were awaiting their back pay, simply to accommodate one individual, the necessity of whose presence is itself doubtful, would be wholly unjustified.

Indeed Farrell never informed the Arbitrator that he wished to be present to offer certain defenses, there were other parties who could have spoken for Farrell; and he was represented by counsel who could have just as easily communicated Farrell's information.

Finally, we find that defendant was not in any way prejudiced by Farrell's absence. The alleged oral agreement that Farrell states he would have raised had he testified, between plaintiff and defendant to utilize a 50-50 basis which would render the Union's grievance applicable only to the two week period when it employed the improper d.b.f. method is of no interest at this point since, as will become evident subsequently, the issue of what period the grievance covered was already decided in the December 17, 1972 award. Neither was Farrell's presence necessary to ensure that a correct formula would be used since all that was needed was simply the tendering ...

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