Petition for Writ of Certiorari — B'nai B'rith, Inc. v. Joftes

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Statutory Provisions Involved dc. 2

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Reasons for Granting the Writ — 6

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Appendix A“ Judgment of the Court of Appeals .. la

Appendix ‘“‘B’’ Memorandum Order and Order on

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Appendix 0 Relevant Statutory Provisions ..... 6a

Appendix D' Agreement ‘Sa

AUTHORITIES CITED

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United States v. Corrick, 298 U.S. 435 ......... eee 10

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Vaca v. Sipes, 386 U.S. .

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Copies of the Memorandum—Order and the Order on

Judgment are attached hereto as Appendix B.

JURISDICTION

The of the Court of Appeals for the Dis-

trict of Columbia Circuit was entered on June 24, 1970

and this petition for certiorari was filed within 90

days of thet date. ‘This Oourt's jurisdicdon is invoked

under 28 U.. C. § 1254(1). :

QUESTIONS PRESENTED

1. Whether the district court was lacking in juris-

diction to enter judgment for the respondent and there-

fore whether the Court of Appeals erred in affirming

such a judgment.

4 Whether; under applicable federal labor law the

- severance pay, pay in lieu of advance notice of sep-

an acticn in court to recover such benefits.

STATUTORY PROVISIONS INVOLVED

The provisions of the

and (3), 152(2), (3), (5), (6) and (7), and 185, are

set forth in Appendix C attached hereto.

STATEMENT OF THE CASE

The jurisdiction of the United States District Court

for the District of Columbia was invoked in this case

under 11 D.C. Code § 521 (1967) and the fact that the

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_ B'nai B’rith’s troubles with Joftes began at a time

prior to January 1967 when Joftes was Director Gen-

eral of its International Council. B'nai B'rith, dic-

satisfied with his performance and deciding that it

*

had grounds for dismissal under the agreement, served

upon Joftes a written notice of dismissal dated Janu-

ary 6, 1967,’ assigning as reasons for its adverse per-

sonnel action lack of capacity and competence. On

February 20, 1967, petitioner served a second notice

of dismissal on respondent, deeming it appropriate 0

supplement and aupersede the first notice of January

6. The second notice, unlike the first, used the literal

agreement language malfeasance, misfeasance and

nonfeasance”’ as additional grounds for the discharge.

Each of these notices was signed on B’nai B’rith’s

behalf by Rabbi Jay Kaufman, Executive Vice Presi-

dent.

Joftes protested the action and, following negotia-

tions, the parties settled this initial grievance in an

agreement dated March 22, 1967, rescinding the action

of dismissal and providing for Joftes’ reassignment

to a new headquarters staff position without change

in salary, with responsibilities in ‘‘research, special

assignments, membership, speech-making, fund raising

and other allied duties, domestically and abroad”.

The settlement of the 1967 discharge grievance did

not end the matter. On December 28, 1967, respondent

filed a one million dollar libel action against Rabbi

Jay Kaufman predicated on the January 6 and Feb-

ruary 20 dismissal notices. The language used in these

notices to describe the grounds for adverse action, i. e.,

“lack of capacity and competence“ and ‘‘malfeasance,

misfeasance and nonfeasance (taken from the limit-

ing language in Article VII of the agreement) con-

1 Paragraph 2.d. of Article VII of the agreement provides that

notices of dismissal shall be in writing.

agreement.

5

stituted the basis for respondent’s defamation action

against the Rabbi. |

Rabbi Kaufman had acted for B’nai B'rith as its

Executive Vice President in signing these notices, and,

accordingly, B’nai B’rith responded to Joftes’ move

against Rabbi Kaufman by serving respondent with a

second and final notice of dismissal dated January 5,

1968,’ signed by Dr. William A. Wexler, President of

B’nai B’rith. In this notice, Dr. Wexler, in explain-

ing the grounds for the dismissal, used the words gross

personal misconduct of such a nature as to make your

continuing employment a detriment to the purposes

of B’nai B'rith,“ identified as the “lawsuit you are

bringing .gainst the Executive Vice President of B’nai

Brith”

On January 16, 1968, Joftes, in a letter addressed

to the B’nai B’rith comptroller, made a formal claim

for severance pay,’ relying on Article XVII of the

agreement, and demanded immediate. payment. On

February 14, 1968, Dr. Wexler responded to this letter

with the advice that I respond. . . only to make it

clear that your dismissal dated January 5, 1968 was

by reason of misconduct constituting ‘malfeasance,

misieasance and nonfeasance’ within the contempla-

tion of the agreement between the Supreme Lodge

of B’nai B'rith and the B’nai B’rith Headquarters

Staff Association, as revised December 15, 1964.“

In his affidavit of February 5, 1969 filed in this

action, Dr. Wexler explained that plaintiff’s action

2 Again pursuant to paragraph 2.d. of Article VII of the

agreement.

In addition to such fringe items as vacation pay, notice pay,

ee te ra, ee

to

iees finally and irrevocably.’’

in its answer to the complaint were: (1) a denial of

the essential of the complaint, and (2) pre-

clusion of the based upon respondent's failure

petitioner and granted respondent’s motion for sum-

to recover as a matter of law. The Court of Appeals

affirmed without opinion.

v REASONS FOR GRANTING THE WRIT

L. THE DECISION BELOW APPEARS SQUARELY TO CONFLICT

WEE THE SECHEON OF TEND COURT 55 RUPERT STEEL

In the Maddoz case, as here, there was a suit in

court for severance pay. There, as here, the claim

to severance pay was based only on a collectively bar-

gained agreement. (379 U.S. 650-51; Memorandum

—Order, Appendix B, infra.) There, as here, the same

0

cedure non-exclusive. (379 U.S. 657-8; Appendix D,

infra, Article XVIII.) In Maddoz it was held that

the lack of an express provision making the grievance

and arbitration procedure of the contract non-exclusive

made it exclusive, thereby precluding a suit in court,

and it is submitted that the doctrine of Maddoz re-

‘ quired such a holding in the instant case.

In the absence of an opinion from the Court of:

. GE Se aE ae See

not applied.

We can be reasonably confident that the Court was

not persuaded by the arguments advanced by respond-

ent, sinee they are so tenuous as at least to border

on the frivolous. First, executive employee” is

equated with “‘supervisor’’ and it is then argued that

the Headquarters Staff Association is not a labor

union' despite the lack of any factual showing that

it is composed exclusively of supervisors; the fact is

that the majority are non-supervisory, and, if this

were disputed, a material issue of fact would be raised

making summary judgment inappropriate. Interna-

tional Organization of Masters. Md P v. N. L. E. B.,

122 U.S. App. D.C. 74, 351 P. ad 771 (1965), is cited

in support of the argument that Maddoz is not con-

trolling, although the M. M. P. case sustained a hold-

ing that an organization was a labor union when one

8

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were non- super visory.

ee ee e EE

the respondent himself was a supervisor (which he

probably was before 1967, he is entitled to rely on the

collectively bargained agreement as giving him a right

to severance pay but was not required to seek enforce-

ment of that right exclusively through the grievance

and arbitration provisions of the the same agreement

(Article XVIII). In support of this proposition, the

Court of Appeals was referred. primarily to Inter-

national Union of United Brewery, etc. v. N.L.R.B., 111

U.S. App. D.C. 383, 298 F.2d 297, 302-305, sustaining

an N. L. R. B., holding that truck-driving salesmen of

soft drinks were not supervisors in relation to the

helpers they were permitted to engage

Finally, the Court of Appeals was urged, on the basis

of Vaca v. Sipes, 386 U.S. 171, 185 (1967), to hold that

judicial relief was available because the grievance and

arbitration procedure would have been futile. This

argument seems to be predicated essentially on the fact

that respondent’s grievance arose at pretty near the

top administrative level and hence pursuit of adminis-

trative appeals would have been Hidicrous. But there

is not the slightest suggestion that arbitration, the ad-

judicatory and final ad binding step in the process,

would have been unfair or futile. ©

This brings us to a matter that is not of record but

that seemed to be of major concern to the Court of

Implicitly, the District Court necessarily determined

the issue, not only by entering judgment for the re-

spondent, but more specifically by virtue of the fact

that petitioner’s answer expressly raised the issue as

a separate and third defense, and the District Court’s

Order on Judgment recites that the Court has con-

sidered the pleadings in the action, the exhibits and

affidavits in support of and in opposition to the

motion.“

It must be acknowledged, however, that in specific re-

sponse to the motion for summary judgment the in-

ability of court to entertain this action was not relied

„

District Court’s attention.

We can understand that this circumstance would be

of concern to the Court of Appeals as a matter of fair-

ness to the District Court, and, perhaps, because of it,

the case might properly have been remanded to the

District Court for consideration in light of Maddoz.

But it did not warrant affirmance.

Maddoz expresses a fundamental principle of fed-

eral labor policy that transcends the interest of a par-

ticular employer and employee involved in a particular

lawsuit. The importance and prevading nature of fed-

eral labor policy, of which Maddoz is undeniably a part,

was again expressed at last year’s term of this Court in

Boys Markets, Inc. v. Retail Clerks, No. 768, Oct. Term

1969, 37 L. W. 4462 (June 1, 1970).

As we understand the principle of Maddoz, it goes

to jurisdiction of the subject matter, and at least the

Court of Appeals for the Sixth Circuit understands it

the same way. Durham v. Mason and Dizon Lines,

Inc., 401 F. 2d 864, 866. If we are correct in this under-

—

standing, jurisdiction of the subject matter cannot be

conferred by waiver or estoppel. F. R. C. P. Rule 12(h)

(3); United States v. Corrick, 298 U.S. 435; United

States v. Griffith, 303 U.S. 226. If the parties had done

everything in their power to confer jurisdiction on the

District Court, they could not have done so.

Suppose, however, that our reading of Maddoz is

wrong and that it does not, strictly, go to the jurisdic-

tion of the subject matter within the meaning of that

term as used in the cases cited in the preceding para-

graph. Even on that supposition, it cannot be argued

that the District Court was right in exercising juris-

diction or that the Court of Appeals could affirm the

judgment consistently with Maddoz.

The Maddoz issue of preclusion, based on failure to

exhaust the contract remedies, was not waived but, on

the contrary, as pointed out above, was raised in defend-

ant’s answer to the complaint and was before the Dis-

trict Court at the time of its decision, even though not

specifically pressed in opposition to the motion for

summary judgment.

Even apart from this, however, there is no support in

this record for either the waiver or the estoppel point.

Admittedly, Maddoz itself says that the employer

and the union could have made a different kind of agree-

ment and thus have made Maddox inapplicable; i. e.,

they could have provided specifically that the grievance

and arbitration procedure should not be exclusive. See

379 U.S. 657-658. Conceivably, therefore, it could be

argued that; if this litigation were between the em-

ployer and the union, some kind of conduct of the par-

ties during litigation could somehow amount to an

amendment of the agreement nunc pro tunc so as to

— oe

make court jurisdiction available. But the union is

not a party to this litigation, and there is nothing the

employer could have done in the absence of the union,

even had it tried, to make this a different kind of agree-

ment. .

The decision of the District Court, in view of the

considerations outlined above, is so clearly a departure

from, and so clearly constitutes a substantial erosion

of, the policy expressed by this Court in Maddoz that

"the Court below should not have permitted it to stand.

Accordingly, we submit that the case is appropriate

for corrective action by thie Court either in the exercise

of its supervisory jurisdiction over the inferior federal

courts or in clarification of the principles which it has

heretofore announced. *

2. IT IS IMPORTANT TO THE ADMINISTRATION OF FEDERAL

LABOR LAW THAT. IF THERE IS ANY POSSIBLE RECON-

CILIATION BETWEEN THE DECISION BELOW AND THE DE-

CISION OF THIS COURT IN THE MADDOX CASE, THE DIs-

TINCTION BE FULLY ARTICULATED IN AN OPINION OF

THIS COURT

It is, of course, open to the Court to grant the writ

herein prayed for and summarily to reverse the deci-

sion below on the authority of Maddoz. If that is done,

the lower courts, other lawyers, and we will understand

that the authority of Maddoz has not been beclouded by

the decision below.

In the absence of a grant of the petition, however,

the decision below can be cited in every court in the

country having a related issue before it as diminishing

the applicability of Maddoz in some undefined way.

We truly believe that the lower courts and other lawyers

will be as much at a loss as we are to know what, if

any, distinction there is. :

judgment of the court below and that upon such review ©

the judgment should be reversed. _

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APPENDIX “A”

Filed June 24, 1970 .

September Term, 1969.

Givil Action 2561-68.

No. 23067

Saul. E. Jorrzs

V.

B’Nat B’arrn, Inc., Appellant.

Appeal from the United States District Court for the

District of Columbia. |

Before: Waicut and Tamm, Circuit Judges, and Noms,“

Judge, U. S. Court of Claims.

Judgment

This cause came on to be heard on the record on appeal

On consideration of the foregoing. It is ordered and ad-

judged by this Court that the judgment of the District

Court appealed from in this cause is hereby affirmed.

2a

APPENDIX “B”

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 2561-68

Saul. E. Jorrss, Plaintiff

5 V. *

B’war B’arrn, Inc., Defendant

Memorandum-Order

This matter came on for hearing on plaintiff’s motion

for a summary judgment of its complaint for benefits

under a contract of employment. It appears that there is

no genuine issue as to the material facts.

Plaintiff was employed by B’nai B'rith for more than

twenty years. As of January 5, 1968, an agreement existed

between the Supreme Lodge of B’nai B’rith and the B’nai

B’rith Headquarters Staff Association which governed the

rights and duties of plaintiff and defendant concerning em-

ployment and discharge. Under articles VII and XVII of

the agreement, an employee could be dismissed for either

‘‘malfeasance, misfeasance or nonfeasance (including in-

competence of a continuing nature), or gross personal

‘ misconduct not connected with his official duties but of

such a nature as to make his continuing employment a

detriment to the purposes of B’nai B’rith.’’. If an employee

were discharged for the former reason, he would not be

entitled to severance pay. If, however, he were discharged

for gross personal misconduct, he would be entitled

under a particular formula to as much as one = salary

in severance pay.

In 1967, after notice and discussion, B’nai B’rith dis-

charged plaintiff for ‘‘malfeasance, misfeasance and non-

feasance. He was and in defendant’s words had been

for some time a thorn in the side of the organization.“

Plaintiff appealed to his superiors to reconsider and after

3a

further discussions they agreed to retain him ‘‘in another

capacity out of an act of compassion and charity.“

Subsequently, plaintiff filed a law suit against Rabbi

Kaufman. When on January 5, 1968, his superior, Dr.

William Wexler, learned of the suit, plaintiff was notified

by phone that he was dismissed. Pursuant to the ap-

plicable. agreement, he was notified that same day by

letter from Dr. Wexler that he was dismissed from his

employment for ‘‘gross personal misconduct of such a

nature as to make your continuing employment a detri-

ment to the purposes of B’nai B’rith.’’

On February 14, 1968, Dr. Wexler mailed to plaintiff

a second letter which purported to clear up any confusion

as to the first letter and which stated that plaintiff was

discharged for ‘‘malfeasance, misfeasance, and nonfea-

sance. Defendant contends that it has raised a genuine

issue of material fact as to the intent of Dr. Wexler when

he fired the plaintiff. The Court disagree.

Defendant’s second letter to plaintiff purporting to amp-

lify the reasons for discharge was mailed about five weeks

after the dismissal of plaintiff. The reasons for the dis-

missal are set forth clearly and unambiguously in the

letter of January 5th. Under the employment agreement

(Art. VII, 72d), reasons for dismissal must be stated

in writing. :

Defendant says the actual reasons for dismissal are set

forth in the second letter dated five weeks after action

was effected.- If plaintiff were dismissed for the reasons

stated in the second letter, he would be entitled to no

severance pay. Defendant also takes the position that

plaintiff’s work had not been satisfactory for some time

and that inferences should be drawn from the first letter

as explained by the second letter that the actual reason

for the dismissal was ‘‘malfeasance, misfeasance and non-

feasance’’ which would not entitle plaintiff to severance

pay under the agreement.

ta

It is noteworthy that the letter of January 5, 1968,

feasance and nonfeasance’’ which had earlier troubled the

organization.

Dr. Wexler, President of the organization, upon being

advised of the pendency of the law suit dismissed plaintiff

and as required by the contract, stated the reasons in

writing. The stated reasons entitled plaintiff to severance

pay under the agreement. Under the circumstances, the

Court would not be justified in reading into the letter which

effected the decision an intent which is not expressed there-

in. In oral argument, counsel with commendable candor

stated that Dr. Wexler’s choice of language was deliberate

because on a prior occasion when he used the words ‘‘mal-

feasance, misfeasance and nonfeasance,’’ plaintiff filed a

law suit.

Plaintiff’s motion for summary judgment is granted.

Order accordingly.

/s/ Ourven Gasen

Judge

Date 3 Mar. 1969

5a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 2561-68

Saul. E. Jorres, Plaintiff

v. :

B’nat B’arru, Inc., Defendant

Order on Judgment

This cause having come on to be heard on motion of

plaintiff for a summary judgment pursuant to Rule 56 of

the Federal Rules of Civil Procedure and the Court having

considered the pleadings in the action, the exhibits and affi-

davits in support of and in opposition to the motion, and

having heard oral argument and having found that there is

no genuine issue of fact to be submitted to the trial Court,

and having concluded that plaintiff is entitled to judgment

as matter of law, it is hereby

Oxperep, that plaintiff’s motion for summary judgment

is in all respect granted, and it is further

Onur and Apsuncep that the plaintiff, Saul. E. Jorres

have judgment against the defendant B’nai B’rith, Inc., for

and in the amount of Twenty Thousand ($20,000.00) Dollars

as severance pay, the amount of One Thousand Six Hundred

and Sixty Six and 66/100 ($1,666.66) Dollars as payment

in lieu of notice and the amount of Three Thousand Seventy

Six and 80/100 ($3,076.80) Dollars for accumulated annual

leave or a total of Twenty Four Thousand Seven Hundred

Forty Three and 46/100 ($24,743.46) Dollars with interest .

thereon at the rate of six per centum (6%) per annum from

January 6, 1968, until paid, and his costs as assessed by

the Clerk.

Dated the 24th day of March, 1969.

/s/ Olav Gascu

U. 8. District Judge

6a

c APPENDIX “C”

Q

RELEVANT STATUTORY PROVISIONS

Labor Management Relations Act of 1947, as Amended

Title Amendment of National Labor Relations Act

DEFINITIONS

„Sec. 2. When used in this Act—

(2) The term ‘employer’ includes any person acting

as an agent of an employer, directly or indirectly, but shall

not include the United States or any wholly owned Govern-

ment corporation, or any Federal Reserve Bank, or any

State or political subdivision thereof, or any corporation

or association operating a hospital, if no part of the net

earnings inures to the benefit of any private shareholder

or individual, or any person subject to the Railway Labor

Act, as amended from time to time, or any labor organi-

zation (other than when acting as an employer), or any-

one acting in the capacity of officer or agent of such labor

organization. 29 U.S.C. § 152(2)

(3) The term ‘employee’ shall include any employee,

and shall not be limited to the employees of a particular

employer, unless the Act~explicitly states otherwise, and

shall include any individual whose work has ceased as a

consequence of, or in connection with, any current labor

dispute or because of any unfair labor practice, and who

has not obtained any other regular and substantially

equivalent employment, but shall not include any individual

employed as an agricultural laborer, or in the domestic

service of any family or person at his home, or any in-

dividual employed by his parent or spouse, or any indi-

vidual having the status of an independent contractor, or

any individual employed as a supervisor, or any individual

employed by an employer subject to the Railway Labor

7a

Act, as amended from time to time, or by any other per-

son who is not an employer as herein defined. 29 U.S.C.

§ 152(3).

* * *

(5) The term labor organization’ means any organi-

zation of any kind, or any agency or employee representa-

tion committee or plan, in which employees participate and

which exists for the purpose, in whole or in part, of deal-

ing with employers concerning grievances, labor disputes,

wages, rates of pay, hours of employment, or conditions

of work. 29 U.S.C. § 152(5)

(6) The term ‘commerce’ means trade, traffic, com-

merce, transportation, or communication among the several

States, or between the District of Columbia or any Terri-

tory of the United States and any State or other Terri-

tory, or between any foreign country and any State, Terri-

tory, or the District of Columbia, or within the District

of Columbia or any Territory, or between points in the

same State but through any other State or any Territory

or the District of Columbia or any foreign country. 29

U.S.C. § 152(6)

(7) The term ‘affecting commerce’ means in com-

merce, or burdening or obstrucing commerce or the free

flow of merce, or having led or tending to lead to a

8 nde

labor di burdening or obstructing commerce or the

free flow of commerce. 29 U.S.C. § 152(7)

„» „„ „

Trriz III

Surrs By anp Acarnst Lasor ORGANIZATIONS

„Sec. 301. (a) Suits for violation of contracts between

an employer and a labor organization representing em-

ployees in an industry affecting commerce as defined in

this Act, or between any such labor organizations, may be

8a

brought in any district court of the United States having

jurisdiction of the parties, without respect to the amount

in controversy or without regard to the citizenship of the

parties,

„b) Any labor organization which represents employees

in an industry affecting commerce as defined in this Act

and any employer whose activities affect commerce as de-

fined in this Act shall be bound by the acts of its agents.

Any such labor organization may sue or be sued as an

entity and in behalf of the employees whom it represents

in the courts of the United States. Any money judgment

against a labor organization in a district court of the

United States shall be enforceable only against the or-

. ganization as an entity and against its assets, and shall

not be enforceable against any individual member or his

assets.

„(e) For the purposes of actions and proceedings by or

against labor organizations in the district courts of the

United States, district courts shall be deemed to have juris-

diction of a labor organization (1) in the district in which

such organization maintains its principal office, or (2) in

any district in which its duly authorized officers or agents

are engaged in representing or acting for employee mem-

bers.

„d) The service of summons, subpoena, or other legal

process of any court of the United States upon an officer

or agent of a labor organization, in his capacity as such,

shall constitute service upon the labor organization.

„(e) For the purposes of this section, in determining

whether any person is acting as an ‘agent’ of another per-

son so as to make such other person responsible for his

acts, the question of whether the specific acts performed

were actually authorized or subsequently ratified shall

not be controlling. 29 U.S.C. § 185.

Tittz V

DeriInITIons

„Sec. 501. When used in this act—

(1) The term ‘industry affecting commerce’ means any

industry or activity in commerce or in which a labor dis-

pute would burden or obstruct commerce or tend to bur-

den or obstruct commerce or the free flow of commerce.

29 U.S.C. § 142(1)

(3) The terms commerce, ‘labor disputes,’ ‘employer,’

‘employee,’ ‘labor organization,’ ‘representative,’ ‘person,’

and ‘supervisor’ shall have the same meaning as when used

in the National Labor Relations Act as amended by this

Act.“ 29 U.S.C. § 142(3)

APPENDIX “D”

AGREEMENT . :

between the Supreme Lodge of B’nai B’rith and the B’nai

B’rith Headquarters Staff Association as revised Decem-

ber 15, 1964

. PREAMBLE

The Supreme Lodge of B’nai B’rith (hereinafter referred

to as B’nai B’rith) and the B’nai B’rith Headquarters

Staff Association (hereinafter referred to as ‘‘Staff As-

sociation’’) agree on the following personnel practices:

ArticLe I—RecoenirTion

1. B’nai B’rith hereby recognizes the Staff 8 as

the sole and exclusive agency for negotiating policies and

conditions, the correction of grievances and disputes, and

other matters pertaining to personnel practices for regu-

lar executive employees

a. who operate out of national headquarters in Wash-

ington, D. C.;

7

10a

b. who are not voting members of the Board of Governors

or any national lay governing body of B’nai B’rith;

and d

c. whether or not said employees are members of the

Staff Association; except that employees of B’nai

B’rith Women and of the national office of B’nai

B’rith Hillel Foundations, B’nai B’rith Youth Or-

ganization and B’nai B’rith Vocational Service are

specifically excluded from provisions of this agree-

ment.

AxrIc IA II- Uas or Facherms axp True sy EmPiovers

1. The use of facilities in the B’nai B’rith Building by the

Staff Association is authorized, subject to administrative

regulations.

2. During working hours no employee shall engage in Staff

Association activities on the premises of B'nai B'rith ex-

cept for the purpose of conference with thy mployer

agency, nor shall an employee engage in any activity other

than the business of B’nai B’rith.

Agticiz I1]—Discetizination

1. An employee may join or refrain from joining the

Staff Association, and B’nai B’rith shall give no prefer-

ential treatment to, nor discriminate against, any employee

because of membership or non-membership in the Staff

Association. 58

2. B'nai B'rith shall not encourage or discourage member-

ship or participation in the Staff Association of any em-

ployee who is eligibile to join.

3. There shall be no discrimination against a regular em-

ployee because of race, sex or marital status. 8

4. B’nai.B’rith shall make no individual or private agree-

ment with a regular employee in conflict with or contrary

to the terms of the personal matters covered in this Agree-

*

——— 222 —— —

— —

lla

‘ment, nor shall B’nai B’rith enter into any agreement in

conflict with the intent of this Agreement to establish for

regular employees uniform personnel practices and con-

i ditions of employment for the matters defined in this

Agreement.

Arricte [V—Derinirions anp Coxprrioxs or EMPLOYMENT

1. B’nai B’rith has the sole right to recruit, employ, pro-

mote, transfer and dismiss any of its employees, subject

to the provisions of this Agreement.

2. A new employee, within ten days after hiring, shall re-

ceive from B’nai B’rith a copy of this Agreement and a

memorandum setting forth his duties, initial salary and

other matters pertaining to his employment.

3. A temporary employee is one who is engaged for a period

not to exceed one year. In the event a temporary employee

is retained permanently in the same assignment, or one

of equivalent duties, he shall be deemed to have completed

his probationary period and shall be deemed a regular em-

ployee.

4. A b cats employee is one who is hired for less than

thirty hours per week in accordance with agreed terms of

employment.

| 5. A regular employee is one who is hired for thirty hours

or more a week-for work of a continuing nature and who

has satisfactorily completed the probationary period as

defined in paragraph 6 of this Article.

6. The probationary period for u regular employee shall

be six months, but may be extended by mutual agreement

in writing for not more than six additional months. B’nai

B’rith shall inform an accepted applicant, before employ-

ment, of the length and nature of his probationary period.

a. Written notice of evaluation of performance shall be

given to the employee by his immediate supervisor at

. 9 1

*

<3

12a

the end of three months, and at the conclusion of the

© ‘probationary period. |

b. B’nai B’rith shall give notice in writing to a proba-

tionary employee whose probationary period is not to

be completed. The notice period shall be the equivalent

of one day for every two weeks of continuous employ-

ment, or fraction thereof, of the probationary em-

ployee, but not to exceed one month. ö

o. An employee who is retained following completion of

the probationary period shall be deemed a regular em-

ployee and shall be entitled to all rights thereof, retro-

active to his first day of full-time employment.

d. When a regular employee is transferred to a new

assignment, arrangements shall be made for his return

to his previous assignment or equivalent thereof, with-

in six months, if the results of the new assignment are

not mutually satisfactory.

Antics VI—Sewtonrry

1. Seniority for a regular employee shall be computed on

continuous length of service beginning from the first day

of full-time employment with any national, district or re-

gional component of B’nai B’rith. Service as an employee

of an individual lodge or chapter shall be excluded.

2. Vacation as defined in Article XV and Leaves as de-

fined in Article XIV shall be included in n. length

of service.

3. Seniority is interrupted but not lost during other leaves

of absence without pay.

—

Anricin VI—Seraration

1. A regular employee released from employment because

of reorganization or retrenchment shall be given two months

separation notice in writing in addition to severance pay

as defined in Article XVII.

13a

2. Seniority shall be recognized as a major determining

factor for continuing the employment of a regular employee

whose job has been eliminated or reduced by seonganination

or a reduction in force.

4 In the event it is impractical to reassign u 5 em-

ployee otherwise subject to separation, B’nai B’rith will

make every reasonable effort to help the separate em-

ployee find suitable employment elsewhere.

Articte VII—DismissaL

1. A regular employee may be dismissed from employment

only on the grounds of malfeasance, misfeasance, nonfea-

sance (including incompetence of a continuing nature), or

gross personal misconduct not connected with his official

duties but of such a nature as to make his continuing em-

ployment a detriment to the purposes of B’nai B'rith.

2. a. A regular employee shall be granted one month notice

of dismissal, except in cases of malfeasance.

b. In dismissals for incompetence of a continuing na-

ture, after two years service, a régular employee

shall receive two months’ notice. 7

c. A dismissal for incompetence of a continuing nature

shall be based on cumulative evidence and evalua-

tion, including an opportunity for the employee to

improve his performance prior to notice of dismissal.

ee Sa ee

shall be in writing.

3. Within the notice period, B’nai B’rith may, at its dis-

cretion, terminate the actual duties of the employee.

Articts VIIJ—Resicnation *

1. A regular employee shall give a minimum of two months’

_ notice of resignation.

l4a

ArticLe [X—ReE.ocaTion

1. A regular employee who is to be relocated, subject to

mutual agreement between B’nai B’rith and himself to

establish, where necessary, maximum allowances, shall be

reimbursed.

a. Actual and necessary cost of transporting his family

and household goods to his new location.

b. Reasonable and necessary expenses incurred in se-

curing suitable housing.

c. Actual and necessary living expenses incurred when

he is required to report to his new assignment before

it is practical to complete his household move, but in

no case shall these expenses exceed the travel and per

diem allowance.

ArtTicLE X—PROMOTION

1. B’nai B’rith shall adhere to the principle of promotion-

from-within and shall give preference in filling a staff va-

cancy to a regular employee if his qualifications are equal

to those of an outside applicant.

2. B’nai B’rith shall publicly advise all ane employees

of staff vacancies, describing the nature of the duties and

professional requirements, and shall invite and act on ap-

plications from employees covered by this Agreement prior

to making a decision.

3. Seniority shall be a major factor in promotions.

ARTICLE XI—IncrEMENTS

1. B’nai B’rith shall consider annually each regular em-

ployee for a salary increment.

@

Articpe X]I—Wetrare BENEFITS

1. Medical and H ospitalization Plan. A regular employee

of B’nai B’rith shall, at his individual option; be covered

— ere

15a

by group major medical insurance. B'nai B'rith shall

pay two-thirds and the employee one-third of the cost of

the individual premium.

a. Any change in the existing medical and hospitaliza-

tion plan shall be by mutual agreement of the Staff As-

sociation and B’nai B’rith.

2. Life Insurance and Retirement Plan. B’nai B’rith shall

maintain a life insurance and retirement plan for regular

employees.

a. Participation by the employee shall be at his individual

option but in accord with established provisions for

the exercise of this option.

b. Terms and conditions shall be periodically reviewed

by B’nai B’rith in consultation with representatives

of the Staff Association for the purpose of improving

the retirement pension and other benefits of the plan.

Articte XIII— HoLmavs

1. The following national and religious holidays shall be

granted with pay to regular employees: New Year’s Day;

Memorial Day; Independence Day; Labor Day; Election

Day (maximum of one-half day for those actually voting);

Thanksgiving Day; Christmas Day; Rosh Hashona (two

days); Yom Kippur; Succoth (first two and last two days);

‘Passover (first two days and last two days); Shevuoth

(two days).

a. For regular employees not stationed in Washington,

D. C., legal holidays may be observed in accordance

with local practice, but religious holidays shall be ob-

served as specified in paragraphs 1 and 2 of this Ar-

ticle.

16

2. For Rosh Hashona, Yom Kippur and Passover time off

will be given at 3:30 p.m. on the afternoon preceding the

first day.

a. Suitable provision shall be made for employees who

observe religious holidays and the Sabbath in the

Orthodox tradition.

Agticyzs XIV—Lazaves

1. Sick leave with pay shall be given for absence of a

regular employee due to illness, injury or pregnancy; or

kor medical or dental treatment; or in case of quarantine.

Sick leave shall accrue at the rate of one-and-one-half

working days per month and is cumulative to a maximum

of sixty days. If sick leave beyond the amount accumulated

is required, it may be granted by the proper authority

designated by B’nai B’rith.

a. When requested, a doctor’s certificate shall be fur-

nished by an employee absent on sick leave for more

than two consecutive working days.

2. Maternity leave without pay for a period not to exceed

one year shall be granted to a regular employee with two

or more years of service. Such leave shall be requested at

least sixty days before the last day of active duty.

3. Emergency leave with pay not to exceed one week may

be granted to a regular employee for personal emergencies

of death or serious illness in the immediate family of the

employee.

4. A regular employee called for jury duty shall receive

the difference between jury pay and his regular pay, ex-

cept on days when the jury is not in session at which time

employee shall report for work.

5. A regular employee called for military reserve training

/shall receive the difference between military pay and regu-

— — —

se

17a

lar pay (if the former is the lesser) for a period not to

exceed two weeks in any calendar year.

6. Military leave without pay shall be granted to a regular

employee for extended active service with the Armed

Forces. He shall be entitled to return to his employment

without loss of prior rights or privileges, provided he

applies for reinstatement within ninety days of his com-

pletion of satisfactory service.

7. A regular employee shall have the right to apply for

leave with pay for academic study and other purposes

when such leave will, in the opinion of B’nai B’rith, be of

sufficient benefit to B’nai B’rith.

ArtTicLe XV—VacaTIon

1. Vacation allowance shall be granted a regular employee

at the rate of one-and-two-thirds working days per month

and shall be computed on a calendar year basis.

2. An employee shall be entitled to vacation accrual after

three months service, retroactively, and from then on.

3. Vacation allowance which will accrue to a regular em-

ployee during a calendar year may be credited to him at

the beginning of the year. If an employee resigns from

B’nai B’rith employment and is indebted for vacation

taken but unearned, appropriate refund or salary deduc-

tion shall be made.

4, Vacation allowances not used may accumulate to a maxi-

mum of twenty working days, which shall be additionally

available at the beginning of the calendar year; however

a. in the event the regular employee has accumulated over

a period of two years or longer, more than twenty

working days of vacation allowance at the beginning

of a new calendar year, and his employment is termi-

nated during that year, he shall be entitled to the ac-

cumulation in excess of twenty working days, but not

to exceed forty working days.

Q

18a

5. Unused vacation allowance shall be taken at the time of

termination of employment; but no vacation allowance shall

be granted in dismissals for dishonesty, or in resignations

without the prescribed notice period.

6. Vacations shall normally be taken in summer, but in any

event at a time mutually agreeable to the employee and

B’nai B’rith.

ARTICLR XVI—TraveL ALLOWANCE

1. A regular employee engaged in authorized travel shall

be reimbursed

a. for actual cost of rail and air fare (not to exceed air

coach when available, or pullman or lower berth

sleeper) or such other means of conveyance as may be

applicable and appropriate.

b. for actual cost of taxi or limousine service to and

from depots and airports.

c. at the rate of ten cents per mile plus tolls and park-

ing, when a privately-owned automobile is utilized

for convenience of B’nai B’rith.

d. at actual cost when a publicly-rented automobile is

utilized for the convenience of B’nai B’rith.

e. for the equivalent of air coach (or first-class rail fare

when air flight would not be applicable) when a pri-

vately-owned automobile is utilized for the convenience

of the employee.

f. for actual cost of reasonable hotel accommodations.

g. reasonable laundry and valet charges for travel of

five consecutive days or longer.

h. a per diem allowance of ten dollars.

1. The per diem allowance is to include 50 cents for

necessary local phone calls and 75 cents for nec-

essary local transportation (bus, subway, taxi,

Be

19a

ete.). Necessary expenditures in excess of these

allowances and other miscellaneous expenditures of

a regular employee in travel status, authorized and

necessary and not otherwise covered by the pro-

visions herein, shall be reimbursed at actual cost.

2. When meals are provided in kind by B’nai B’rith, or any

of its components, the per diem shall be reduced as fol-

lows: ;

$1.50 for breakfast

$2.00 for luncheon

$4.00 for dinner

3. For purposes of computing fractional time periods, the

day shall be deemed to be in four parts:

a. from 6 a.m. to 12 noon; ;

b. from 12 noon to 6 p.m.; ?

c. from 6 p.m. to 12 midnight; 2

d. from 12 midnight to 6 a. m.

and the fractional per diem shall be computed at 52.50

for each part of the day.

4. A regular employee not in a travel status but incurring

petty cash expenses necessary to the professional perform-

ance of his assignment shall be reimbursed actual cost.

5. A regular employee engaged in foreign travel shall be

reimbursed the regular per diem allowance except

a. he shall be reimbursed a special allowance not to ex-

ceed actual cost when the circumstances impose travel-

ing costs in excess of the regular per diem.

b. Canada shall be deemed domestic travel.

6. Employees shall use proper prudence and judgment in

incurring travel and petty cash expenses.

7. An employee shall have the right to draw advance funds

for a specific travel assignment in a sum not to exceed the

estimated cost.

| 20 A.

Anr ICI XVII—Severai'ce Par

1. Severance pay shall be computed at the rate of three

weeks salary for each year’s service up to a maximum of

one year’s salary and shall be paid a regular employee

whose employment is terminated by

a. separation as defined in Article VI

b. disabling illness of a permanent nature, providing the

disabled employee bas one or more years of seniority.

c. dismissal for incompetence of a continuing nature or

for gross personal misconduct, as defined in Article

VII.

2. Severance pay for dismissal on the grounds of mal-

feasance, misfeasance, or nonfeasance other than incom-

petence of a continuing nature is not authorized, except that

a B’nai B’rith committee composed of the President, Execu-

tive Vice President and Chairman of the Personnel Prac-

tices Committee may, at its discretion, consider terms of

dismissal for malfeasance and misfeasance in individual

cases.

3. The computation of severance pay shall include prorated

allowances for fractional periods of a year.

4. Severance pay shall be exclusive of unused vacation

allowance or notice periods of separation or dismissal;

however, unused vacation allowance shall not be considered

in computing length of service for severance pay.

* Articte XVIII—Grirvance Procedure

1. In the event of a grievance the party or parties involved

shall have the right to be represented personally, or by the

Staff Association, or by counsel.

2. The procedure for handling a grievance shall be as fol-

lows :.

a. The aggrieved party (or parties) shall present his

complaint to his immediate supervisor. In the event

21a

the matter is not satisfactorily settled within two

weeks, then,

b. the aggrieved party (or parties) shall have the right

to take up the complaint with the next higher authority,

continuing this procedure up to the office of the Hxecu-

tive Vice President of B’nai B’rith. In the event the

complaint is still not satisfactorily settled within a

period of two weeks.

c. the aggrieved party (or parties) shall have the right

to take up the complaint with the President of the

Order, or such committee as the President may desig-

nate. In-the event the complaint i is not *

settled within a period of six weeks, f

d. the aggrieved party (or parties) then shall have the

right to submit the matter to arbitration, as defined in

paragraph 3 of this Article.

3. In the event a complaint or dispute is unresolved prior

to arbitration the procedure shall be as follows:

a. B’nai B’rith and the Staff Association shall sele an —

impartial arbitrator mutually agreed upon or a three-

member arbitration board which shall include one mem-

ber appointed by B’nai B’rith, one member appointed

by the Staff Association and a third member selected

by the two who shall serve as chairman.

b. The decision of the arbitrator or the majority decision

of the arbitration board shall be binding upon a con-

cerned.

4. A discharged employee who contests } is dismissal as a

grievance must do so within one week of receipt of written

notice of dismissal. Until final adjudication of his griev-

ance he shall be deemed a regular employee.

a. In extraordinary cases B’nai B’rith may suspend the

employee, but if decision is ultimately made in the

22a

employee’s favor, all compensation, leave and other

privileges shall be awarded retroactively to the date

of his suspension.

Anricye XIX— Exrmarrox anp Renzwat or AGREEMENT

1, This revised Agreement. shall come into full force and

effect as from January 1, 1965, shall remain in force for a

period of one year, and shall be renewed automatically each

year thereafter, unless either party gives written notice of

termination or renegotiation to the other party at least

ninety days prior to the expiration date.

SS