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Johnson v. United Food and Commercial Workers

June 22, 1987

ROBERT L. JOHNSON, KEITH A. SMITH, RICHARD E. DAVIS, ANN MCFADDEN, WANDA M. ANDERSON, AND ALL OTHERS SIMILARLY SITUATED, APPELLANTS
v.
UNITED FOOD AND COMMERCIAL WORKERS, INTERNATIONAL UNION LOCAL NO. 23, FORMERLY LOCAL NO. 590; JACK DRAPER; RICHARD J. LUTZ; UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, C.L.C.; ALAN LEE; AND THE GREAT ATLANTIC & PACIFIC TEA COMPANY, APPELLEES



Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil No. 85-2066.

Gibbons, Chief Judge, Weis and Aldisert, Circuit Judges.

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge.

In this appeal plaintiff employees contend that they are not bound by an arbitrator's unfavorable decision, despite their union's voluntary submission of a dispute to him. We conclude that the union had authority to arbitrate the question of the existence of a collective bargaining agreement even though the matter could have been litigated. We also decide that individual employees may not rely on representations which were made by the employer during collective bargaining but never incorporated into a valid labor contract. We therefore will affirm the dismissal of the plaintiffs' complaint.

Various facets of the dispute underlying this case have been before us on earlier occasions. Thus, we summarize the facts briefly for background purposes.

A collective bargaining agreement between The Great Atlantic & Pacific Tea Company and Local 590, now Local 23, covered the employees in seventy-seven A & P stores in western Pennsylvania, Maryland and West Virginia. This contract, signed in 1977, was to expire on September 27, 1980.

Beginning in June, 1980, A & P and the union tried without success to negotiate a new agreement. The September 27 deadline passed, but by its terms the 1977-80 provisions continued in force during the negotiations. On October 23, 1980, the negotiators seemingly had reached a resolution. They memorialized their agreement the next day in a hand-written memorandum signed by company and union representatives. The parties apparently intended to integrate the memorandum's twenty-four points with the 1977-80 agreement at some future date.

Several months later, company and union representatives reworked the 1977-80 agreement to reflect the memorandum's modifications. Local 590 officials signed the new three-year draft on May 27, 1981. The union membership, relying on representations made by the officers, then ratified the document. Senior officials at A & P, however, refused to sign the new contract, asserting that it did not accurately reflect the 1980 memorandum agreement.

Between the negotiation of the memorandum in 1980 and the company's refusal to execute the proposed 1980-83 draft, A & P had shifted several full-time employees to part-time status. The union protested this action, arguing that the employer was bound by the terms of the 1977-80 agreement as continued in the 1980-83 proposed contract. These terms provided that A & P would combine part-time positions to create as many full-time positions as possible. The company insisted that the memorandum had specifically eliminated the pertinent clause and contended that it should not have been included in the 1980-83 draft.

Local 590 moved for arbitration. A & P initially objected on the grounds that no contract was then in force, but finally agreed to arbitrate the single question of whether a collective bargaining agreement had existed during the grievance period. After taking testimony, the arbitrator issued a comprehensive opinion that no collective bargaining agreement had existed between the parties after October 23, 1980.

The local next filed suit in the district court. In United Food and Commercial Workers Int'l Union, Local 590 v. Great Atlantic & Pacific Tea Co., 734 F.2d 455 (3d Cir. 1984), we affirmed the district court's refusal to modify the arbitrator's decision.

In a related case, the trustees of the multi-employer welfare benefit fund covering A & P employees sued the company to recover payments due under the collective bargaining agreement. Because the fund had not been a party to the initial arbitration proceeding, we determined that collateral estoppel did not bar the trustees from enforcing their claims under the collective bargaining agreement. Moldovan v. Great Atlantic & Pacific Tea Co., 790 F.2d 894 (3d Cir. 1986).

The proceeding now before us began as a suit in the state court by the named plaintiffs, former employees of A & P and members of Local 590. Defendants are the local and international unions, the president and secretary of the local union, the vice-president of the ...


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