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In the Matter of the Arbitration
between
NATIONAL ELEVATOR MANUFACTURING INDUSTRY, INC. A WAR D
and
INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS
The undersigned Arbitrator, having duly heard
the parties and having duly considered their allegations,
proofs and arguments,
Dsted:
AWARDS, as follows:
The grievance of the International Union is sustained. In determining the local wage rates of elevator constructors under Article V, Par. 1 of the Standard Agreement (Atlantic City Plan) the appropriate area committees of NEMI and Local Unions 132, 34 and 17 in Madison, Wisconsin, Indianapolis, Indiana and Cleveland, Ohio, shall use local building trades hourly wage rates agreed upon and established for such trades without reducing the amounts thereof by such deductions as are at issue in the current disputes involving elevator constructors rates in such localities. More particularly, it is awarded here that the hourly wage rate used under the Atlantic City Plan in the localities referred to shall include amounts which under building trades contract an employer is under a duty to deduct from the hourly wage of a building tradesman for vacations.
New York, New York August 15, 1964
/s/ Peter Seitz Peter seitz, Arbitrator
STATE OF NEW YORK )
COUNTY OF NEW YORK) SS:
On this 15 day of August, 1964, before me
personally appeared PETER SEITZ, to me known and
known to me to be the individual described in and
who executed the foregoing instrument and he duly
acknowledged to me that he executed the same.
lsi Myra T. Seitz Notary Public
In the Matter of the Arbitration
between
NATIONAL ELEVATOR MANUFACTURING INDUSTRY, INC.
and
INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS
OPINION
The Undersigned was selected by the Director
of the Federal Mediation and Conciliation Service to
serve as Arbitrator of the dispute described below.
Due notice thereof having been given, hear-
iugs were held on December 4 and 17, 1963 and on June II
18, 1964 in New York City, New York. The Industry
i7 A considerable volume of exhibits was introduced by the parties at the two hearings in December, 1963. Subsequently, when the Arbitrator sought a clarification of some of the matter in the record, a dispute arose between the parties as to the authority of certain bodies to make binding settlements for their principals. The Union then moved to reopen the record for further evidence on that subject matter. The motion was granted and a supplemental hearing was conducted on June 18, 1964.
All witnesses in the cases were sworn. A transscript of all proceedings was made available to the Arbitrator. Counsel for both parties filed able briefs dealing exhaustively with the large volume of facts in the record.
-1-
was represented, thereat, by Fayette S. Dunn, Esquire,
its Attorney; the Union by Patrick C. O'Donoghue,
Esquire, its Attorney.
The dispute concerns the method of determin-
ing the wage rate to be paid locally by members of the
Industry to elevator constructors. That rate, under
the Standard (National) Agreement of the parties, is
computed by reference to the local building construction
trades rates (as will be hereinafter described) and the
question posed, as stated with, perhaps, greater pre-
cision is:
Does the Agreement of the parties contemplate the use of the building construction trade rates stripped of deductions made for vacation plans, et cetera, or the building construction trade rates including an amount deducted and withheld for vacation plans, et ceteria?gj
gj Or, alternatively stated, in the formulation of the Attorney for the Industry:
"Are the amounts deducted by employers from the wages of an "Atlantic City Plan" trade to provide vacation payor welfare, 'fringe payments' (within the meaning of 1B of Par. 1 of Article V of the Standard Agreement) that must be deducted from the wage rate of said trade before using it in the formula for establishing the wage rate of Elevator Constructors (in 1A of Par. 1 of Article V of said Standard Agreement)?"
-2-
BACKGROUND
The National Elevator Manufacturing Industry,
Inc. consists of some fifty members called Manufactur-
ers. The Union is an international union with some
ninety-six locals. Both Manufacturers and local Unions
are distributed throughout the United States. On Janu
ary 25, 1962, the International Union, as a party,
negotiated a Standard Agreement having nation-wide ap-
plication with the Industry as a party. The Signatories
on behalf of the Industry were Messrs. D. D. Tofanelli,
R. B. Duncan and P. L. Martin, each of whom is associa-
ted with leading manufacturers in the Industry. These
three individuals are also the three members of the
Labor Committee of the Industry (which will be referred
to, herein, as "NEMI Committee~') 3/
jJ The booklet representing the Agreement shows an Industry signature "By" Mes-srs. Tofanelli, Duncan and Martin whose names are set forth without any reference to their representative capacities. Article I declares that the Industry "is authorized and empowered to negotiate and execute this agreement" on behalf of the manufacturer members whose names are listed. Similarly it declares that the International "makes this agreement for or on behalf of its affiliated Local Unions" which are listed.
Thus, both "parties" to the Agreement appear therein in a representative capacity on behalf of principals. The scope of authority of those who affixed their signatures to the Agreement on behalf of the Industry and the International Union is a subject of controversy and will be discussed infra •
The Standard Agreement has a history that goes
back at least to 1921 when the "Atlantic City Plan" (as
called) was written into it. This imaginative and unique
conception which is credited with having avoided strikes
and lockouts over wages in this Industry for over forty
years, was described as follows:
"At a meeting held in Atlantic City, July 11th-12th, 1921, between the representatives of the Elevator Manufacturers and members of the Executive Board of the International Union of Elevator Constructors, it was agreed that the average wage rate of the five highest of the following seven principal building trades, namely, (1) bricklayers, (2) plasterers, (3) carpenters, (4) electricians, (5) sheet metal workers, (6) plumbers and steam fitters, (7) iron workers, be accepted as the wage rate for the elevator constructors mechanics; the wage rate for helpers to be t0i of t~~ mechanic IS rate". (Emphasis supplied).':!1
Thus, the parties established, so far as the writer is
informed, the only building construction trade wage-
setting system nation-wide in scope. This wage-setting
was to be done locally by reference to the wages of the
local building trade rates. The preamble to the 1946
Agreement provides that it shall be incorporated in and
lz) This quotation was taken from the September 1946 Agreement (Art. 3, Par. 5) the earliest expression of the Atlantic City Plan placed in the record of this case.
-4-
become a part of any agreements entered into by the Manu-
facturers and Local Unions; and no local agreements shall
be made changing the Standard Agreement except as it might
beprovided for therein. Also, Article 13, Par. 2 of the
1946-1951 Standard Agreement contained a "local option"
clause, so called, which permitted locals to negotiate
special conditions for described classes of work, except
thst the "wage rate" as determined in the Atlantic City
Plan (then Al-t. 3, Par. 5) "may not be chsnged".
For many years, Manufacturers and Local Unions,
pursuant to the formula provided in the quoted provisions
have agreed to their wage rates. From time to time, the
Standard Agreement was renegotiated with some chsnges.
In the period prior to 1946, the building
trade rates used as reference points for local Construct
ors, 'jj rates were usually "raw" or "gross" rates in the
'iJ By "Constructors" reference is intended to employees
working in local areas for manufacturers subject to the
Standard Agreement.
sense that building trades and contractors contracted
locally for an hourly rate of compensation with little, if any,
provision for benefits or deductions from the pay en-
velope for what may be called "fringes". Little diffi-
culty in that period was experienced in the administra-
tion of the Atlantic City formula. Adjustments in Con-§!
structors' wages were limited to once in six months.
In Article 8 of the 1964 Agreement it was pro-
vided that inasmuch as vacations "may become general
at some future date in the Building Trades", whenever
five of such trades, locally, "obtain a vacation" an
International Representative of the International Union
and a National Representative of The Manufacturer shall 7J
meet "to establish an equitable plan."
In 1951, immediately following the provisions
quoted above with respect to the Atlantic City Plan
~ In 1961 this was extended to renegotiation of wage rates not more frequently than once in eleven months.
7J In 1951 the Standard Agreement reduced from five to four the number of Building Trades with vacations as the fact that should trigger a meeting to establish an equitable plan, locally, for the Constructors.
-6-
(then and thereafter designated as Article V, Par. LA)
there was added the following, designated Par. IB:
"It is agreed that in consideration of the granting of paid holidays as outlined herein, only the hourly rates of the trades used in determining the wage rates are to be used. This means no fringe payments, such as welfare plans, tool or clothing allowances, etc., are to be used in determining the wage rates of members of the Union covered by this Agreement." (Emphasis supplied.)
In 1957, the parties provided (in Article XII,
Par. 1) that when three (formerly five, then four) of
the Building Trades, "obtain a vacation", locally, "the
Local Union shall receive vacation pay" in accordance
with Article XII, Paragraph 3; also, that "all Local
Unions that do not have vacations are to participate
in the Vacation Plan" in Article XII, Par. 3 of the
1957 Standard Agreement, effective January 1, 1958.
Article XII, Par. 3 then set forth a vacation
plan which gave "vacation pay credit" to employees
based on a percentage of hours actually worked. One who
worked less than five years was to receive not more than
forty hours in anyone year from anyone company; one
who worked more than five years, not more than eighty
hours. A number of other provisions set forth details
with respect to the administration of this first Vaca
tion Plan, nation-wide in scope. For the present purposes
it will be noted only that this plan contemplated no
deduction from wages. The employer made vacation pay
ments when as and if an employee became eligible for
vacation leave with pay.
The differences in construction that gave rise
to the present controversy first arose under the 1957-
1961 Standard Agreement. However, before undertaking
to delineate them, it might be well to complete the
historical analysis of the Standard Agreements.
The January 1, 1962--December 31, 1966 Standard
Agreement bears the date January 25, 1962. By this
time, apparently, vacation arrangements were much more
general in the Building Trades than theretofore. The
1962 standard Agreement, without more, provides for
"Vacation Pay" in line with the system for eligibility,
-8-
duration, administration, et cetera, first detailed
in the 1957 Agreement. With respect to the Atlantic
City Plan, the 1957 language, generally, was repeated
with this significant modification: in the second
sentence of Article V, Par. lB it was made to read:
"This means no fringe payments such as welfare plans, togls or clothing allowa!!.ces, vacations,!::7 etc., are to be used." Lwith respect to the wage rates of the trades named in the Atlantic City Plan in determining the wage rates for Constructors covered by that Standard AgreementJ (Underscoring supplied.)
THE THREE DISPUTES IN ARBITRATION
This arbitra.tion proceeding results from the
inability of the parties to resolve their differences
with respect to the determination of the appropriate
wage rate for Constructors in three localities under
the Atlantic City Plan) as articulated in the 1962
Agreement) as follows:
1. Madison. Wisconsin: At issue is the appropri-
ate local Electrician's rate. The Manufacturers wish
§J The word "vacations", not emphasized or italicized in the Standsrd Agreement, was added to the pre-existing provision.
to deduct from the Electrician's rate a 20 cent deduc
tion from the pay to the electrician for vacation pur
poses which was agreed upon in the 1961-1964 Electrician's
Agreement with the local association of contractors. That
Agreement sets forth a rate of $4.34 for the period June
1, 1963 through May 31, 1964. With respect to "Vaca-
tion Fund" it says that the "emplo;)e r will deduct from
the wages of each employee the sum of twenty cents (20¢)
per hour for each hour of straight time pay* * *" and
a check for that amount, so deducted, shall be made pay
able to a designated bank and sent to the Local Union
once a month. The Local Union is to send the check to
a designated bank for deposit in a "Vacation Fund" ac
count. Employees are to give the employer written as
signments authorizing such deductions. The question is
whether the Electrician's rate, used for the determina
tion of the Constructor's rate under the Atlantic City
Plan shall be $4.34 or that amount, stripped of the 20
cent deduction, namely $4.14.
2. INDIANAPOLIS, INDIANA: At issue is the a.ppro-
priate rate to be used for Electricians, Bricklayers and
- 10 -
Pipe Trades.
In May, 1963, the Electrician's Agreement pro
vided for an "hourly rate" of $4.40 for Journeyman
Wireman. Article XIII of that Agreement provides for a
Vacation Plan requiring "not less than five consecutive
working days per calendar year away from the Electrical
Industry. " Section III, Deductions, states that 20
cents per hour or 40 cents per overtime hour "shall be
deducted from the earnings of each employee" and forward
ed to a Vacation Board. The Board designates a deposit
ory where the employer checks are to be deposited and
individual checks shall be made for withdrawals pursuant
to the direction of the Board. All sums collected are
deposited and credited to individual employee accounts.
The Union claims the appropriate Electrician's
rates to be used is $4.40; the Industry, $4.20.
In the matter of the Pipe Trades, in Indiana
polis, the contract for Journeymen calls for $4.25 as
the "minimum rate of wages." Section 2 of Article IV
of the contract states that "the employer agrees to with-
-11-
hold weekly from the wages of all employees" a given sum
for each hour worked plus twenty five cents for each
overtime premium hour worked. These sums are to be paid
into the savings account of each employee at the Indiana
National Bank "for the sole and express purpose only of
providing each employee with funds to be used in taking
a vacation from his employment at least once each year."
The contract provides that prior to forwarding such sums
to the bank the Employer "shall make all legal withhold-
ings from the wages of each employee such as Federal In-
come Taxes, Indiana Gross Income Taxes, Social Security
Taxes, etc."
In the matter of Bricklayers, in Indianapolis,
the June, 1962 Agreement provided for a "rate of wages"
of $4.51 starting December 1, 1962. A supplemental
agreement, made effective that date, provided that:
"Contractors shall withhold from the pay of employees working in the jurisdiction of Local No. 3 (20¢) twenty cents per hour or any fractio~ thereof, wage increase of Dec. 1, 1962 Lsicd
These monies are required to be deposited in individual
accounts in Peoples Bank & Trust Co. for vacation pur-
-12-
poses under a vacation plan contained in a Supplement
ary Agreement.
3. Cleveland. Ohio: Here the dispute involves
deductions from the pay of Electricians ($.15 for vaca
tions) and Sheet Metal Works ($.075 for vacations).
The March 1, 1964 Agreement of the Electricians,
as amended May 1, 1962, provides for a "minimum rate of
wages" for Journeymen from May 1, 1963 to May 4, 1964
of $ .44 per hour. It also provides for a Vacation
Plan "to be financed by an authorized withhold from the
wages paid to all employees" under rules to be establish
ed by a JOint Conference Committee. On June 10, 1963,
the Electricians entered into an Agreement with Central
National Bank of Cleveland providing for vacation ac
counts to be set up in the name of individual employees,
the execution of employee authorizations for deductions
and for interest at the rate of 2.57% per annum. Monies
could be withdrawn after June 1 in any year. In case of
death, payment is to be made to the estate of an employee
or his surviving spouse. It is evident that these de
ductions were made by employers in the same way in which
-13-
social security taxes or income taxes were withheld.
The "minimum rate of wages" for journeymen sheet
metal workers is stated to have been $4.46 per hour ef-
fective May 13, 1963. With respect to a Promotion Fund
(so-called) the contract calls for the employer to make
"contributions of 5 cents per hour; but with respect to
a Vacation Plan (Section l-C) it is provided, that:
"The employer shall deduct from wages of each employee an amount of 7M per hour for all hours paid for the Vacation Fund to be administered by a Board of Trustees * * *."
THE POSITION OF THE PARTIES
The Industry presents a number of points in
its argument but it seems fair to state that its prin-
cipal point is that "all mandatory payments made by an
employer for vacations or welfare fringe payments"/;'.rJ
to be stripped from the "hourly wage rate" under the At-
lantic City Plan, "whether they are payments in addi-
tion to a wage rate or take the form of deductions from
a wage rate." (See Industry brief, P. 5) . This view recog-
nizes no significant or material difference between a
- 14 -
contract providing for $4.00 an hour rate from which
the employer must pay a trustee $.20 an hour for vaca
tions and $.10 an hour for welfare, on the one hand,
and a contract that provides $3.70 per hour with sup
plementary payments of $.20 an hour for vacations and
$.10 per hour for welfare purposes, on the other. The
Industry position seems to be that any such mandatory
payments, however made, are "fringe" payments which the
second sentence of Article V, Par. 18 excluded from the
wage rates to be used in making computations of the
Constructor's rate under the Atlantic City Plan.
The Union argues thst the amounts represented
by the deductions from wages in the disputes referred
to are not "fringes" to be stripped from the wage rate
under Article V, Par. 18; that this view is supported
by custom and in particular the administration of the
Davis-Bacon Act by the Solicitor's Office in the Depart
ment of Labor, the publications of statistics by the
Buresu of Labor Statistics snd the usages in the build
ing and construction industry; and, finally, that both
-15-
on a local and at the highest level of contract admin-
istration there have been settlements and determina-
tions made by the parties that should govern the award
herein.
A. Are These Payments "Fringes" Which are Not to be included in Building Trade Wage Rates Under Article V, Par. IB?
Any approach to this question by way of diction-
ary definition of "fringe" gives little promise of suc-
cess. It is an exercise in semantic futility: Lexico-
graphers, lately, have taken to including every known
usage of a term in their definitions. Accordingly, if
"the devil can quote Scripture for his purpose", 2/ with
equal facility that resourceful advocate could also find
comfort in invoking dictionaries for whatever definition
seems to support his thesis. The problem is compounded
by the fact that "fringe" as a term in industrial rela-
tions usage is of recent vintage and does not appear to
have been used, most frequently, as a word of art. I am
under the impression that it gained most of its cur-
2/ The Merchant of Venice, Wm. Shakespeare, Act 1, Sc. 3, 1. 48.
-16-
rency in the days of the national wage stabilization
program when, to many, it meant any type of increase
not labeled a "wage rate increase" bargained by the
parties which the National War Labor Board, or its suc
cessor, National Wage Stabilization Board, would approve
as not coming within the proscriptions of the policy as
inflationary or tending to hamper the successful prose
cution of the war or adversely affecting the health of
the economy in the immediate post-war period. The term
was used then and is currently used now in many con
texts. The question to be answered is not what it means
generally, but what it means in Article V, Par. lB.
At the time the Atlantic City Plan was launched,
and, undoubtedly, for many years thereafter, it was
characteristic of the building trades to bargain a
"raw" hourly wage rate as compensation for services.
"Benefits" (vacations, holidays, welfare, pensions,
jury pay, funeral pay, et cetera) were usually fur
nished, if at all, directly out of the pay envelope.
-17-
Many pressures (the contents of the collective bargain
ing contracts of industrial unions, the character of
the national wage stabilization program and a general
awakening to the importance of providing for the social
needs of both organized and unorganized workers) led
to the inclusion in the contracts of building trades
of provisions for what I have referred to as "benefits."
These "benefits" are provided for, mainly, in
two ways. Some benefits are furnished by an agreed
upon deduction from the gross wage and a withholding
and deduction of the monies (by trust indenture, bank
deposit or otherwise) for defraying the cost of the
benefit. Others are furnished by an agreement of the
employer to provide monies that would be available to
satisfy a designated need or purpose. Thus, for ex
ample, under some collective bargaining contracts, the
employer, resorting to his own financing and insurance
devices, undertakes to pay certain pension monies to
eligible employees when they retire; under other con
tracts a payment is irrevocably made by the employer
-18-
on behalf of and for the account of the employee (some-
times with employer contributions on a matching or
other basis) to a fiduciary or depository with the un-
derstanding that the monies are the vested property of
the employee, but to be released only for designated
purposes.
The building trade agreements involved in this
arbitration bear a closer resemblance to the last men-
tioned variety of provisions, although to be sure, the
language used and the arrangements and procedures speci-
fied are not entirely uniform. The Madison, Wisconsin,
Electrician's contract, for example, 'uses the term "de-
duct" from wages; equal explicitness is not present in
all contracts, some of which merely call for a payment
to the bank. It is not entirely clear from a perusal
of this record how the tax problem is handled. It is
noted, however, that the Madison, Wisconsin, contract
referred to tells the employer to make
"all legal payroll withholdings for income tax, social security, unemployment insurance, etc. from the total of wages, including vacation allowance. and shall then withhold the full amount of vacation allowance
-19-
for transmittal on a monthly basis to the bank. " (Emphasis supplied.)
It would appear, from the record as a whole, that the
employee's income tax on the vacation allowances (in
some unknown proportion of the situation throughout
the country) is withheld at the source by the employer.
This may not occur in other cases. Where it is done,
the action tends to give the monies the character of a
taJlable wage.
What then, is the character of these de-
ductions viewed through the prism of the Standard Agree-
ment and in the light of the probable purposes of the
Atlantic City Plan?
It is vain and futile to seek to ascertain
the true "intent" of the "founders" with respect to
vacation deductions because they probably did not ad-
dress their minds to that subject and may not have had
an actual intention with respect to the problem pre-
sented by this dispute. It does appear that they in-
tended to gear and calibrate wage movements in the In-
dustry with wage movements in the building trades. For
-20-
the purpose of argument, I shall assume that their pur-
pose extended only to "raw" wages, Le., pay in the
pay envelope of building tradesmen in view of the then
existing practices in the bargaining of the building
trades with contractors.
In 1951, however, the Industry having granted
paid holidays to Constructors, it was said that:
"only the hourly rates of the trades"
shall be used. If the term "hourly rates" stood alone,
conceivably it could mean gross hourly rate including
whatever amounts are withheld for benefit purposes.
"Hourly rate" signifies only the amount of dollars -and
cents which an employer is obligated to pay for an hour
or services in his employment without any reference to whom
or for what or how the money is to be spent.
Then the parties set forth that:
"This means no fringe payments ***, ,,1Qj
This was an equivocal direction, at the best, and the
iQJ The language used is curious in this respect: when telescoped, the provision reads "hourly rates * * * means no fringe payments * * *, II (Emphasis supplied.) "Rates", ordinarily, do not mean "payments"; they mayor may not include obligations of the employer not represented by the amount of the payroll check.
-21-
parties must have realized that the word "fringe" was
fraught with uncertainties; and, accordingly, they gave
examples of what was meant.
In 1951, "fringe payments" were described as
"such as welfare plans, tool or clothing allowances, etc. * * *."
In 1957, after the Standard Agreement provided for a
vacation plan, the word "vacatioos" was inserted after
"clothing allowances."
There is an inference, due to the relative
concurrence of events that, having given a certain kind
of vacation benefit to Constructors in the Standard
Agreement, the Industry did not desire to have "payments"
for such vacations included in the building trade rates
which were to be considered under the Atlantic City Plan.
An examination of Article XII of the Standard
Agreement, however, discloses that it is an entirely
different kind of vacation plan from the plans in the
building trades agreements under discussion. In the
Standard Agreement Plan, the employer does not deduct
monies or deposit them to the employee's individual ac-
count for dedicated purposes or withhold employees' in-
-22-
come taxes on the amount so deposited. He does no more
than to assume a future liability to pay vacation allow-
ances when, as and if an eligible employee takes his va-
cation. The vacation money can in no sense be "income"
to the employee until that future time when he receives
it. These considerations conduce to the conclusion that
the parties must have had in contemplation the elimina-
tion from the building trade hourly rate only vacation
allowances of the kind and character set up in the Stand-
ard Agreement. True, Par. 1B also excludes "fringe pay-
ments," such as "welfare plans" and the Welfare Plan in
Article XVII calls for regular payments and contribu-
tions for each hour of work. However, the Welfare Plan
contributions are made to a fUnd and do not assume the
character of the private vested monies of the employee-
such as the vacation deductions explicitly assigned by
the employee to be deposited on his behalf in an individ-
ual interest-bearing account.
I shall not deny that the picture of the status
of vacation deductions drawn from the language of the
Standard Agreement and the considerations I have mention-
ed is a clouded one and uncertain. There are considera-
tions urged by the Industry which have merit and which
-23-
tend to support its argument that any mandatory payment for
a benefit without regard to the manner or time of its pay-
ment by an employer constitutes a "fringe" which should
be stripped from the building trade rate. However, on
balance, I think the weight of the argument favors the
Union on the question whether Article V, Par. lB excludes
vacation deductions with the special characteristics of
those I have described and are involved in the three disputes
in arbitration. However, I choose not to base the accompany-
ing award on the considerations discussed in this portion of
my opinion which I regard only as fortifying and supporting
the conclusions expressed elsewhere.
B. ARGUMENTS BASED ON THE PROCEDURES OF THE DEPARTMENT OF LABOR AND THE CUSTOMS IN THE BUILDING CONSTRUCTION INDUSTRY.
I wish it to be understood that I do not base my
conclusions in the accompanying award on the point made by
the Union that, in publishing prevailing rates for con-
struction on federal projects, as required under the Davis-
Bacon Act, the Department of Labor includes in the mini-
mum wages deductions for vacations such as are in
-24-
issue in this case. The purposes of that statute might
well be served by such inclusion inasmuch as it would give
assurance that the gross labor costs of contractors operating
in the locality with union labor would not be undercut
by non-union contractors. This would have the practical
result of eliminating the cost of labor, benefits and
working conditions from the area in which contractors
would compete.
There is no indication, however, that in its pro
cedures, the Department of Labor gives cognizance to such
considerations as are relevant to a construction of this
Standard Agreement. The fact that certain items are
included in a wage for the Davis-Bacon Act proves nothing
in the instant inquiry.
Similarly, the fact that the Bureau of Labor
Statistics includes vacation deductions in hourly wages
is of no consequence in the instant inquiry.
It may be worthwhile in this connection, however,
to repeat an observation concerning the custom and prac
tice of the building trades alluded to above. It is
-25-
well known and widely recognized that building trades
prefer to and customarily do express the compensation
for services in the contracts they bargain in gross
wage rates. Many industrial unions will express the
hourly rate in minimum amounts and their labor contracts
will set forth many provisions for benefits either to be
given directly by the employer or to be contributed for,
by him, into a fund. Until recently, this approach has
not been used by building trades whose preference it has
been to place emphasis upon a high minimum hourly wage
which, presumably, would comprehend the needs and bene
fits of their members. In other words, until rather re
cent times, typically, building trade contracts were not
characterized by the benefit (or, if you Will, "fringe")
provisions which were brought into vogue by industrial
unions with relatively lower hourly rates.
This tendency, it would seem, was given impetus
and momentum by the Davis-Bacon Act. No doubt, the self
interest of building trades was served by articulating
the hourly rate at the highest possible level (and includ-
-26-
ing "fringes") in order to set minimum wage standards in
localities at a level that non-union contractors for con
struction and repair might not evade or avoid. This be-
ing so, one is given to wonder why this Industry, which
is certainly sophisticated in the ways of the building
trades (and the administration of the Davis-Bacon Act)
did not seek to protect the position it argues for in
this case by some less equivocal and more precise and
meaningful language than appears in Article V, Par. lB.
It seems not unfair to expect that an Industry familiar
with the wage policies of the building trades, fully
aware that benefits and "fringes" of various'kinds were
finding their way into building trade contracts would want
to make absolutely certain that the building trade wage
used for Atlantic City Plan purposes does not include a
deduction for vacation monies such as are involved here.
The language employed, at the best, is ambiguous and equi
vocal and raises a serious question as to whether, actu
ally, any conscious mutual understanding was ever achieved
that the building trade rate was not to include the vacation
deduction.
-27-
here: .
C. ALLEGED SETTLEMENTS AND OTHER ACTIONS TENDING TO INDICATE HOW THE PARTIES THEMSELVES CONSTRUED ARTICLE V, PAR. lB.
There are two classes of situations to consider
1. The Company relies on a considerable number of in-
stances in which various "fringes" were stripped from
the building trade rates before being used for the compu-
tation of Constructor's rates under the Atlantic City
Plan. A list of these instances is set forth in Appendix
A of the Industry's brief.
That these actions have relevance, is clear. If
there were no better evidence available, one might be
justified in concluding that the manifestations of the
parties, as evidenced in these occurrences, disclose how
they themselves read their Agreement and what expectations
it justified in their minds.
However, there is better and more persuasive evi-
dence of the practical and administrative constructions
by the parties of their correlative rights and duties,
as will shortly appear.
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First, it would appear that when the building trade
rate was first stripped of the "fringe" payment before
being used to compute the Constructor's rate under the
Atlantic City Plan, this was done without dispute, contro-
versy or the filing of a grievance or other complaint.
The action was local in that the decision was made and
the rates were determined by regional representatives of
NEMI and by local union officials. There is no indication,
in these cases, of awareness of the position taken by the
International Union.
Second, Article XXIV (Local Option) expressly excepts
from the permission to Local Unions to negotiate special
conditions attaching to certain described work "the wage
rate as determined by Article V, Par. 1A of the Agreement.1!/
Thus, the interpretation and construction of the Atlantic
City Plan or departures therefrom, were not matters confided
to the authority and powers of local union officials. If
ill No reference is made to Paragraph lB. I take this to be a drafting oversight, inasmuch as the material in the local option clause is believed to have antedated the legislating of Paragraph lB.
-29-
this be so, not much weight can be given to their actions
falling into the pattern of what the Industry considers to
be the correct administration of the Atlantic City Plan.
2. There have been settlements by national officers at
the highest level of authority inconsistent with the In
dustry's current construction of the Agreement.
a) Atlanta Dispute. 1961.
In 1961, the regional NEMI Committee took the posi
tion that an hourly rate for Electricians of $4.00
should be reduced by $.20 an hour, representing an employee
authorized deduction for vacations.. The vacation plan,
expressed in a 1958 Agreement, provided that the vacation
allowance "shall be withheld from the employee's weekly
pay and shall be sent on a monthly transmittal to a bank
to be designated by an Administration Committee to be
deposited in employees' individual accounts." The em
ployer was to make "all legal wi thholdings for income
tax, social security, unemployment compensation, etc.,
from the total of wages including vacation allowance and
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shall then withhold the full amount of the vacation
allowance for transmittal on a monthly basis to the
bank. "
In early 1959, the Area NEMI Chairman raised the
question whether the $.10 was not a deductible fringe;
but, nevertheless, used an hourly .age rate for Elec-
tricians of $3.70 without deducting the vacation
monies.
In September, 1959, and March 1960, the parties
used the hourly rate in the Electrician's contract
without deducting the $.10 for vacations.lSI
In August, 1960, the local Union requested recog-
nition of an Electrician's rate of $4.00 per hour.
The Area NEMI'Chairman refused to allow it for more
than $3.80 (the $.10 vacation allowance for Electri
cians having been increa sed to $ .20 in 1960).
This dispute, at this stage, was referred to Edwin
C. Magee, Secretary~reasurer of the International
Union and D. D. Tofanelli, Chairman of the Labor Committee
~ Apparently this was done despite the fact that, through error, the local Union representative initially demanded the Electrician's wage rate, less the $.10 vacation deduction.
-31-
or NEMI. Torane11i took the position that regardless or
the previous acceptance or the Electrician's rate in At-
lanta without having deducted the $.10 vacation money, the
vacation deduction was a "rringe" and was not to be
included in the Electrician's rate.
The matter came up berore the yearly meeting or the
Executive Board or the International Union and the Labor
Committee or NEMI in February, 1961 in Miami. According
to Mr. Magee:
"At the end or the discussion the Labor Committee or NEMI agreed to pay the requested increase and at the same time they said that they will pay but they still considered it a rringe. "13/ (R.44)
Magee testiried that Toranelli also stated that NEMI intend-
ed to make a rurther investigation, apparently, to determine
the relationship between Davis-Bacon published rates and the
.At1antic City Plan. 1!±/
13/ Thus, the Industry Labor Committee in errect granted the substance or the claim but merely verba1lized its adherence to its original position. One is reminded or Ga1i1eo, who, when rorced to recant berore the Inquisition his theory that the earth moved about the sun and not the sun around the earth was heard to mutter, sotto voce, "!pur si muove!" Laeverthe1ess it does moveL!
It is worth noting that nothing was said about the settlement being made without prejudice or its inapplicability, as a precedent, in any like dispute which might arise.
1!±/ Torane11i indicated that the Atlanta rate was agreed upon "aga.inst my wishes." (R.266) and that he was "not in accord with what was done (R.293): however, it does appear that the Labor Committee "agreed to allow the Atlanta rate" (R.293) although the theory on which it proceeded to do so was unclear.
-32-
The Union pOints out that after the Atlanta, Georgia
problem with respect to Electrician's rates was resolved
on a national level in 1960, in a manner consistent with
the Union's position here, other settlements were arrived
at, locally, on March 1, 1961, September 30, 1961, August
1, 1962 and September 15, 1963. In each of such settle-
ments the Electrician's wage rate used included $.20 em-
ployee deductions for vacations.
b) Indianapolis. Indiana Dispute. June 1961.
In June 1961, Local 34 in Indianapolis request-
ed a wage increase based, in part, on an Electrician's
rate of $3.95 and a Sheetmetal Worker.'s rate of $3.93.
Both rates included vacation deductions. Since 1956, this
Local had used Electrician's rates which bad included vaca-
tion deductions. Apparently, Mahr, the Area NEMI Chairman,
raised no question as to the Electrician's rstes, but did
raise a question as to the Sheetmetal Workers' rate. He
was informed by one Eckerson, in New York, acting for Tofan-
elli, that the $.13 deduction for vacations in the Sheetmetal
situation "was definitely a fringe and should not be in-
cluded in the computation of the Elevator Constructors'
-33-
rate. " Accordingly, Mahr refused the local's request as
to that rate.
Magee then took the matter up with Tofanelli. On
August 7, 1961, Eckerson, acting for Tofanelli, advised
Magee that the Sheetmetal Workers vacation plan was a
fringe and that "this discussion is not one which concerns
money, but, rather, principle."
Magee took the matter to the meeting of the Executive
Board of the International Union and the Labor Committee of
NEMI in Atlantic City, in October, 1961. He presented a
letter from the Department of Labor certifying that the
Davis-Bacon rate for Sheetmetal Workers in Indianapolis
was $3.93 - or the rate claimed by the Local Union without
deducting the vacation money. According to Magee:
"the final outccme was that they agreed to accept the rate that was submitted by the business agent." (R.138)
Tofanelli's testimony is:
"To settle the argument we agreed to pay the rate." (R. 295).
although he seems not to have a full recollection of what
occurred at that meeting. (R. 297.)
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Following the Atlantic City meeting, Eckerson
wrote to Mahr on October 6, 1961, referring to the meeting
and stating:
"A decision was reached to the effect that the established wage rate for the Sheetmetal '~Q.rker in the Indianapolis area is $3.9.3.." Lwhich includes the vacation deduction~
Mahr, on October 9, 1961, then addressed NEMI mem-
bers in his area, confirming the $3.93 rate for Sheet-
metal Workers, and listing this rate and the $3.95 rate
for Electricians (which also included the vacation money)
as "correct and should be used in the computation of the
new elevator constructors' rate." Mahr referred to the
"official notice from the National NEMI Labor Corrnnittee,
dated October 6, 1961" as the basis of his authority.
c) The Second Indianapolis. Indiana Dispute and the Madison. Wisconsin Dispute.
The problem of the inclusion of vacation moneys
in the Sheetmetal Workers rate flared up again in July,
1962, after the matter, apparently, had been laid to rest
in October, 1961. Local Union #34 in Indianapolis asked
for an $.11 increase for the elevator constructors, based,
-35-
in part, on a Sheetmetal Workers' rate of $4.08, a Pipe
Trades' rate of $4.15 and an Electricians' rate of $4.15.
The Sheetmetal Workers Vacation Trust Agreement which set
forth the terms under which the vacation monies would be
administered and which wa's the basis of the October 1961
settlement in Atlantic City were still in effect. The
Pipe Trades provisions were, generally, similar, provi-
ding for employer withholdings for all ~axes and then
depositing the vacation funds in an individual employee
savings account. The employee, as in the other cases,
was required to execute a withholding authorization.
Mahr, the Area NEMI Chairman, informed the Local
Union that the National NEMI Committee agrees with him
that "these amounts are fringe and should not be included
in your rate compensation."
Subsequently, on July 18, 1962, Mahr wrote to
Tofanelli as "Na,tional Labor Chairman" asking ,that you
provide us with an official ruling covering this contro-
versy" and, "in the event you cannot provide us with an
official rulin~ L~fore July 25, 1962, the date of his
1:iI Note that Mahr did not ask for advice or for a recom-, mendation as to the appropriate procedure. He asked to be instructed by the highest authority in the Industry having to do with the administration of the relationship.
next meeting with the Local Uniou! * * * please take the
necessary steps to place this question before an Arbitra
tion Committee as stipulated in Article XV of the Standard
Agreement. " (Underscoring supplied)
While this second Indianapolis problem was in
progress, Mahr refused (July 9, 1962) to give approval
to an Electrician's rate in Madison, Wisconsin, which in
cluded a $.40 "fringe" consisting of deductions of $.15,
$.105 and ·$.20 "from the wages of each employee" for
"health and welfare premiums", "dues" and "vacation fund"
purposes, respectively. In each case a written assignment
or authorization was required to be given by the employee.
In the case of health and welfare premiums and dues, the monies
were to be sent to the Union; in the case of vacation deductions,
to a designated bank.
A meeting of the Executive Board of the International
Union and the Labor Committee of NEMI took place in New
Orleans, Louisiana, in October, 1962. The problem of de
ductions from wages of building trade employees was
canvassed exhaustively with a view to settling on
-37-
some permanent basis for disposing of such problems.
The utility of Davis-Bacon rates, for this purpose was
considered. The Union officials left the meetings with
the understanding that some permanent solution was to
be reached. Subsequently, in November, Magee got the
impression from a discussion with Tofanelli in New York
that the Industry would accept the published Davis -Bacon
rates as the rates for the purpose of the Atlantic City
Plan.1Q/
Following the meeting in New York on November 14,
1962, Mahr wrote to the Local Union on the subject of
1Q/ Under cross-examination, Tofanelli refused to concede that the first Indianapolis rate was settled on the basis or theory of the applicability of the Davis-Bacon rate and would go no further than to say:
"To settle the argument we agreed to pay the rate." (R.295,297,298,299.)
and with respect to the New Orleans meeting, he testified:
"I think we caved in and gave you the cent increase or whatever it was to get it off the record. (R.302)
Apparently, the New Orleans meeting did end with a declaration by Tofanelli that the Industry would "look at this thing and come back with a solution" (R.302, 303) but this search never eventuated in any final formula or understanding of how the Standard Agreement should be interpreted. (R·303)
I , ,
the Indianapolis dispute:
'~e have been instructed to proceed with the settlement of your wage rate on the basis of the Davis-Bacon Act."
He proceeded to list, for Indianapolis, as a basis for
the determination of Ele~ator Constructor rates, the
Electrician's rate of $4.15 which, in July, he had refused
to approve on the ground that it included a "fringe."
Then, under date of November 20, 1962, on the sub-
ject of Indianapolis rates, Mahr addressed all NEMI mem-
bers in the area of which he was Chairman of the Labor
Committee, refer~ing to his previous rejection of build
ing trade rates because they included a fringe and stated:
"We have just received instructions from the National N. E. M. I. Labor Committee to the effect that we should proceed to settle the elevator constructor rates in accordance with Davis-Bacon Act." (Underscoring supplied.)111
A similar letter was sent by ~lahr on the subject of the
Madison, Wisconsin dispute to all NEMI members in his area,
listing building trades rates as requested by the local
union without having stripped them of the "fringes."
111 Presumably, this action was taken by Mahr after receipt of what he called the "official ruling" he had requested in his letter of July 18, 1962, referred to supra.
-39-
DECISION
The facts in this case have been set forth in a
profusion of detail because, without a sound grasp of the
facts, the basis for decision cannot be understood.
Surveying the case as a whole, I am persuaded to
reach the following conclusions:
1) The language of the Standard Agreement is
ambiguous and equivocal as to whether deductions
required to be made by employers from the wages
of building trades employees are to be stripped
before they are used to determine Elevator Construct
or rates under the Atlsntic City Plan provisions.
Based on contract language alone, no clear result
on this dispute could be expressed with confidence
in its fairness and justice. It does seem fair
and just, however, to observe, that, given the
common character of building trade wage rates and
the recent tendency to provide for various bene-
fits and employee plans--a tendency of which this
Industry cannot be said to have been unaware--
if the parties had truly bargained to strip the
-40-
cost of such benefits or plans from the gross wage rates,
such bargain would have been expressed with some clarity
and precision in the Standard Agreement. Par. IB, however,
falls far short of that objective, and, in fact, gives
some support to the position that the only fringe payments not
to be included in the building trade rates are those which
do not involve an immediate vesting of a property interest
in the employee-beneficiary -- such (by way of illustration),
as the vacation plan in Article XII of the Standard Agreement.
2) I find no basis for concluding that there
was any mutually arrived-at and mutually understood
agreement between these parties that the published
Davis-Bacon prevailing rates were to be regarded
as the approved rates for the purposes of the At
lantic City Plan provisions; This is said despite
the fact that in Area 4, NEMI instructed its members
to use Davis-Bacon rates; and, also, despite the
fact that the parties, both, explored the use of
that Act extensively as a basis for the resolu
tion of their controversies. However, the proof
-41-
that they actually reached agreement to use Davis-
Bacon rates in the fUture leaves much to be desired.
I am persuaded that when Mahr in his November 20,
1962 letter referred to settlement on the basis of
Bacon-Davis rates he was using "Bacon-Davis rates"
only as a loosely convenient and inaccurate label
for the rates actually agreed upon. So far as I
can determine, the rates agreed upon were identical,
in that case, with the Davis-Bacon rates.
The parties are bound to agree upon rates on
a case by case basis in the future, as in the past;
and, fortunately, they have provided themselves
with an arbitration forum in which disputes might
be resolved. They are free, of course, if they so
wish, to agree upon the use of Davis-Bacon rates.
3) The process of contract construction and in-
terpretation is, in essence, a search for what
both parties reasonably expected of each other in
consequence of the bargain they struck. Whenever
-42-
; , t
i , I I t ~ , ~ ,
I /
I ,
! [ l f
I
it speaks with clarity, their document is the
best evidence of their mutual will and undertakings.
Where the writing is unclear, their conduct, when
deliberate and considered, might shed consider
able light upon how they, themselves, construed
the written embodiment of their understandings.
Here, the conduct of the parties goes far
to clarify what was not too satisfactorily express
ed in the writing.
First, I find that the settlements made by
Local Unions and area committees of NEMI to be en
titled to little weight as evidence. This knife
cuts both ways; because, just as some local unions
permitted vacation and other monies to be stripped
from the building trade rates, so, also did area
committees of NEMI fail to insist upon such rates
being reduced by the amount of vacation and other
deductions. Practice and usage become significant
when there is a conscious knowing and deliberate
acceptance of a certain way of doing things or the
parties may fairly be charged with a conscious,
knowing and deliberate acceptance of the pro
cedure. Where the particular way of proceeding
was done without a conscious realization of the
considerations involved it sheds little light on
the true and basic intentions of the parties. The
local settlements relied on by the Industry here,
were not true settlements because the elements
of controversy presented in this arbitration case
were not in their minds at the time. In any event,
as the numerous letters in the record make plain,
the local unions and the area committees of NEMI
were not authorities whose decisions as to the
interpretation of the Atlantic City Plan provisions
could have major industry-wide significance as to
the meaning of the Standard Agreement. The local
option provision of the Standard Agreement under
lines the incapacity . of those bodies to make policy
as to the subject matter of the Atlantic City Agree
ment.
Second, we have for consideration the actions
-44-
of the parties at the national level and the sig
nificance of the adjustments made at Miami, Florida,
in February, 1961, in Atlantic City, New Jersey,
in October, 1961 and in New Orleans, Louisiana,
in October, 1962. These actions and the letters
that resulted from the conferences have been the
subject of exhaustive exposition. They signify
that in 1961 and in 1962 (whatever might have been
in their minds in 1921 or in 1957 when "vacations"
was added to par. lB) the parties construed their
Agreement in a manner consistent with the Union's
position in this case. When the parties sat down
to bargain their January 1, 1962--December 31,
1966 Standard Agreement at the end of 1961, the
actions they took at Miami in February, 1961 (the
Atlanta dispute) and at Atlantic City in October,
1961 (The Indianapolis dispute) were before their
eyes. When they re-enacted Article V they did so
with the gloss and significance which their actions
at Miami and Atlantic City gave to Article V in
the previous Agreement. When the parties acted
as they did at and subsequent to the New Orleans
meeting in October, 1962 (with reference to the
Indianapolis and Madison disputes) they effective-
ly confirmed that interpretation, construction and
application of Article V, Par. lB.1§!
The record in this case was reopened, at the
request of the Union and additional testimony taken
with respect to the authority and competence of
the Labor Committee of NEMI and the Executive Com-
mittee of the International Union to make the
settlements on a national basis relied on here by
the Union. Additional statements of position
were made by the parties with respect to the pro-
fusion of evidence presented. My judgment is that
the relations between the parties will only be ex-
acerbated by any painstaking and analytical explora-
tion of the testimony and evidence on the subject;
and it is doubtful that there would be any profit
in burdening this opinion with the detail submit-
ted in support of the respective positions of the
parties. I shall content myself with saying only
1§! To this may be added the interesting circumstance that following the settlement made in the Atlanta dispute in 1961 (Miami meeting) the local groups in subsequent wage determinations continued to apply that settlement and," so far as is known, the current wages in that area reflect that settlement. Presumably, this is also true of the continued application, locally, of the other national settlements referred to herein.
-46-
that I have read the transcript of the reopened pro-
ceedings, carefully considered the statements of the
parties thereon subsequently forwarded to me, and
find that at the least. the Executive Committee of
the International Union and the Labor Committee of
NEMI had such ostensible authority to act on behalf
of their principals as to bind them, nationally in
the settlements made. However, the evidence also
justifies a finding that the practices and usages of
the parties, through the years, in the negotiation,
administration, modification, clarification and sup-
plementation of their agreements was lluch as to
clothe the Executive Committee of the International
Union and the Labor Committee of NEMI with plenary
authority to make the settlements referred to at the
annual meetings.
The Company observes, with respect to the set-
tlements, that
"it was in each case a non-controversial matter involving relatively small sums of money. The present case is not similar in any way. It is being vigorously contested and is of large monetary importance."
The Company goes on to state that the instant controversy
involves some 10,000 Elevator Constructors and an adverse
decision could impose an "additional wage burden upon the
Industry of $2,000,000 to $4,000,000 per year" (letter of
Fayette Dunn to the Arbitrator, July 20, 1964).
The record does not bear out the Company·s·view
of the disputes which were settled as being minor and
parochial differences of a "non-controversial" character
having no relationship to or impact upon the board nation
al panorama served by the national agreement.12I It is
evident that the positions of the parties were vigorously
stated and restated at successive meetings by individuals
on both sides ostensibly occupying the most responsible
positions, nationally, for administration of the relation-
ship between the parties. The disputes themselves, and the
nature of the questions raised, did not relate to matters
peculiar to the localities where they arose. The questions
asked were questions pertinent to the fixing of wages through-
out the country wherever the Atlantic City Plan was in ef-
fect. The parties could not settle anyone of those disputes
without the action having an impact, one way or another, on
iii Note that on August 7, 1961 Eckerson, acting for Tofanelli, stating that the vacation plan was a deductible "fringe", said, Significantly, that
"this discussion is not one which concerns money but, rather, principle." (Underscoring supplied.)
This statement is hardly consistent with the theory that the settlement was only a pragmatic and bargained "wash-out" of a minor and bothersome claim for a small sum at the cost of its nuisance value.
-48-
all wage fixing under the Atlantic City Plan. When the
highest authorities involved in the administration of
a labor agreement resolve an issue, however local in
its origin, which is potentially applicable to all
other localities affected by the Agreement, they can
not avoid the precedential consequences of what they
have done unless, perhaps, it is mutually agreed that
the settlement was without prejudice and was not to
be invoked by either party in other like disputes.
There was no such agreement in this case.
The $2,000,000 to $4,000,000 per year figure
is, of course, of awesome proportions and even a labor
management disputes arbitrator is compelled to pause
for breath when it is mentioned. It is readily conceded
that those who agreed to the settJements referred to
above never had it in mind that what they were doing
might conceivably involve such impressive sums and mone
tary effects; but the end sought by the Union is the
normal and logical consequence of what they did. The
decision in this case, manifestly, cannot turn on the
extent of the monetary consequences of an award for the'
Union. There is no theory 0:1" adjudication that would
justify this. The decision must be based upon a construc
tion and application of the understanding of the parties
as evidence by this written agreement and as manifested
by their conduct and actions thereunder to the extent
that they illuminated their understanding of their bargain.
The Industry says, in effect, that the interpre
tation sought for by the Union is overreaching ("pie on pie")
pyramids benefits and that this departure from the
intentions of the founders sounds a death knell for the
Atlantic City Plan which has served the Union as well
as the Industry so well for so many years. As to this,
I must observe, first, that it is not the office or
function of any ad hoc Arbitrator to moralize or to
act as a labor relations consultant to the parties. It
is my duty to identify and to interpret and to apply the
bargain of the parties. If that bargain had been ex
pressed with ringing clarity there would be no need
for arbitral services. It was not so expressed, and,
accordingly, there was a need for discerning its sub-
-50-
stance and contents from such evidence as was pre-
sented in the record. In any event, it is the bargain
that is the Arbitrator's quarry and goal, and I have
no business expressing myself on whether the Union
should have pursued this course.
Finally, I wish to remark that parties who pos-
sessed the good sense, ingenuity and sound relationship
that could make the Atlantic City Plan serve them so
well for many years should have the confidence to
believe that, in an industrial world that has changed
so radically since 1921, they will find means of future
accommodation and the furtherance of mutually-held ,
interests. Agreements are made in a context of current
facts of life. When the facts of life change those
agreements are subject to severe strains and pressures.
The writer knows of no other Agreements that have per-
sisted for such a length of time as the Atlantic City
Plan of these parties. It is not astonishing that, in
a changed industrial society, the parties should have
-51-
imparted to it a direction not contemplated, per-
haps, by its progenitors. I do not think it is a time
for mourning as the Industry's argument suggests to
me; but, rather, that the parties who have the capacity
to do so should adapt their old institutions to
changed conditions.
lsi Peter Seitz Peter Seitz, Arbitrator
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