Schoellhammer's Hatboro Manor, Inc. v. Local Joint Executive Board

Dissenting Opinion by

Mr. Justice Musmanno:

The Local Joint Executive Board of Philadelphia County, Local Unions Nos. Ill, 115, 232 and 301, hereinafter to be referred to as the Union, and the Greater Philadelphia Restaurant Operators, Inc., to be identified in this opinion as the Association, entered into a collective bargaining agreement, a provision of which reads: “All matters in controversy or dispute arising during the term of this agreement, except those matters specifically enumerated in the last sentence of this article, shall be discussed between the Employer and *64 the representatives of the Union in an effort to reach an amicable adjustment. In the event that the Employer and the Union are unable to adjust the controversy or dispute between them, then either party shall apply to the American Arbitration Association for the purpose of having the impartial arbitrator designated in accordance with its rules and regulations. The' impartial arbitrator thus designated shall promptly hear and decide the grievance or matter in dispute and the decision thus rendered shall be final and binding upon both parties.”

A “controversy” did arise between the Association and Union. The Union, in accordance with the language just quoted, filed a demand for arbitration with the American Arbitration Association. However, before the arbitration machinery could turn a wheel, an establishment known as Schoellhammer’s Hatboro Man- or, Inc., dropped a monkey wrench into the mechanism by asking the Court of Common Pleas of Philadelphia County to issue an injunction against the Union’s request for arbitration. The court of common pleas dropped another monkey wrench of its own into the arbitration machinery by granting the requested injunction. The Union appealed to this Court and a third monkey wrench went into the gears of the arbitration machinery, clamping it to a rusting motionlessness.

What is the explanation? The Association is made up of restaurant and taproom operators and owners in the Philadelphia area. One of these restaurant owners is the Schoellhammer’s Brewery Tavern, which, of course, is bound by the arbitration procedure above outlined. The Schoellhammer’s Brewery Tavern employs union labor but, the Union charges, the Schoellhammer’s Brewery Tavern operates and maintains another establishment known as the Schoellhammer’s Hatboro Manor, Inc., which does not employ union labor.

*65 If the Schoellhammer’s Brewery Tavern and the Schoellhammer’s Hatboro Manor (for convenience, now referred to as Tavern and Manor) are both under the same management and control, the Manor is bound by the collective bargaining agreement entered into between the Union and the Association. That agreement specifically declares that the Association recognizes the Union as the exclusive collective bargaining representative of the employees “working in each establishment now operated and maintained by any of the employees or in any establishment hereafter operated and maintained by any of the employers, in all matters relating to collective bargaining such as wages, hours of work, working conditions and adjustment of grievances.” (Emphasis supplied). This language is as clear as a flag in a parade that if any of the employers, of whom Tavern is admittedly one, takes over another establishment to operate and maintain, the employees in the second establishment must be represented by the Union in all matters relating to “wages, hours of work, etc., etc.”

Tavern denied that it operated and maintained Man- or. With the charge advanced by the Union and the denial filed by Tavern a dispute arose between the Union and the Association, the very type of controversy envisaged in the collective bargaining agreement which was to go to arbitration. By what right, by what type of reasoning, then, did the court of common pleas authorize Manor to strip the gears of the arbitration machinery that the Union and the Association had built up between them? Manor had no standing whatsoever as a party in the arbitration proceedings initiated by the Union. If, indeed, Manor was not being operated and maintained by Tavern, Tavern would naturally produce the evidence establishing the disconnection between Tavern and Manor, and Manor would have nothing to worry about.

*66 But at the time of the Union’s demand for arbitration, Manor was a stranger to the contract between the Union and the Association. For Manor, thus, to go into court to prevent arbitration between two other parties was nothing short of presumption and an interference with the contractual rights of those other parties. Here indeed was- the classic illustration of the tail trying to wag the dog. The Union claimed that Manor was an appendage of Tavern. The Union did not ask for arbitration between it and Manor. It sought a peaceable solution of the controversy between it and Tavern. If Manor is not a tail of . Tavern it will not be disturbed in its independent course, but it should not be allowed to be the dog in the manger to prevent the Union from demonstrating that it is actually part of the Tavern enterprise.

Suppose A and B living in Philadelphia agree that neither should deal with X living in New Jersey and that if a controversy arises between them, that controversy is to go to arbitration. A later charges that B is dealing with X and demands arbitration. Would X, in such a case, have any authority to go into court to demand an injunction against A in his dispute with B ? Obviously he would not have any such right. How does this hypothetical case differ from the one actually before us?

The Majority says that Manor was not a signatory to the contract of arbitration, but no one is dragging Manor into arbitration. Manor may fly its independent flag; it will not be disturbed by the arbitration proceedings. The battle is drawn between the Union and the Association, the latter representing Tavern. If, of course, it should develop, in the arbitration proceedings that Manor is really part of Tavern, then naturally Tavern will be required to unionize the employees of Manor. But that is all in futuro. It is a matter of fact-finding, it is a matter of adjudication *67 by the arbitration panel. By preventing the arbitration, the court below decided the very issue which was before the arbitrators. The very purpose of the arbitration was to ascertain if Manor was a tail or another leg of Tavern. The Court below said this was not arbitrable. And this Court, by its majority, gave sanction to the destruction of a solemn agreement entered into between the Union and the Association. This Court, by approving the erroneous decision of the court below, has, in effect dismantled the arbitration machinery set up by the Union and the Association. It has knocked out the legs of the table at which the representatives of the Union and the Association desired to sit down and negotiate. This Court has cavalierly discarded the criteria handed down by the Supreme Court of the United States in litigation of this very character. In United Steelworkers of America v. American Manufacturing Company, 363 U.S. 564 , the high court said: “The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator. In those circumstances the moving party should not be deprived of the arbitrator’s judgment, when it was his judgment and all that it connotes that was bargained for.”

The Majority apparently attempts to temper the severity of its decision by stating that the Union has the right to go to arbitration, but it adds a limitation which is like saying that a ball player has the right to bat for his team, but requiring that he stand at the plate without a bat. The Majority says the Union may arbitrate but that arbitration tribunal cannot bind Manor. The Majority here fails to see what the ball *68 game is about. The Union says that Manor is part of Tavern. If the arbitrators find that Manor is indeed part and parcel of Tavern, that ends the ball game so far as Manor is concerned because, under the collective bargaining agreement, Tavern has solemnly pledged that it will employ union labor “in any establishment hereafter operated and maintained” by Tavern. Of course, if the arbitrators find that Manor is not part of Tavern, the factual issue is also definitively resolved.

The Union charges that Tavern is the father of Manor, it is responsible for Manor, it speaks for Man- or and if that be so, it must unionize Manor. The Union charges that Schoellhammer, which is the common name to both Schoellhammer’s Brewery Tavern and Schoellhammer’s Hatboro Manor, is working a subterfuge by putting a different suit on one of its children and, through costumery, denying parentage of that child, so that it will not be required by law (through contract and arbitration) to give that child what it promised under its agreement with the Union.

In United Steelworkers of America v. Westinghonse Electric Corporation, 413 Pa. 358 , we said: “In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad.”

There is nothing in the agreement between the Union and the Association which can possibly exclude Tavern from its obligation to go to arbitration when, exhausted all amicable efforts to adjust any controversy, the Union seeks arbitration.

It is regrettable that this Court should, without of course desiring to do so, seem to restrict the freedom and the willingness of combatting parties to leave the *69 battlefield of hot contention, repair to a tree of deliberation, and under its comforting shade of mutual reflectiveness, reach a common understanding of reciprocal benefit. In Wyoming Radio v. National Association of Broadcast Employees, 398 Pa. 183 , we said: “Arbitration is not a makeshift or a subterfuge. It is not an excuse for delay or a fan for the cooling off of tempers. It is a solemn and serious undertaking for the attainment of justice, and when parties engaged in a common enterprise agree to settle by arbitration all differences which may arise between them they are bound by their commitments as much as if they had entered into a stipulation in Court.”

Tavern, through the Association, gravely agreed to settle by arbitration “all differences” which could arise between it and the Union. It should not be allowed, through the process of sending in a masked coadjutor, to chop down the tree of arbitration and peaceful reconciliation to the advantage of all parties concerned, and the general public involved.

Here was an ideal opportunity for the courts to knock a home run for friendly and peaceful arbitration. Somebody struck out. I do not believe it was I.