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OFFICE & PROFESSIONAL EMPLES. INTL. UNION

November 15, 1982

OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, LOCAL 2, Plaintiff,
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant



The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, District Judge:

 This case involves a bitter labor dispute between the defendant, Washington Metropolitan Area Transit Authority (WMATA), and the plaintiff, Local 2 of the Office and Professional Employees International Union (Local 2). In its First Amended Complaint, Local 2 asserts five causes of action: (1) breach of contract; (2) violations of the Metropolitan Area Transit Authority Compact (Compact); *fn1" (3) malicious violation of an arbitration award; (4) unlawful retaliation against Local 2 employees; and (5) refusal of WMATA to proceed to arbitration on outstanding issues. The third cause of action -- the most fiercely controverted -- concerns the validity of an arbitration award establishing certain bargaining units among WMATA's employees. The fourth cause of action together with Local 2's motion for a temporary restraining order or preliminary injunction *fn2" concern WMATA's refusal to grant two pay increases to Local 2's members in October 1981 and in October 1982. Presently before the Court are cross motions for summary judgment on Local 2's third cause of action, Local 2's motion for summary judgment on its fourth cause of action and a motion for a temporary restraining order and preliminary injunction.

 For the reasons set out in this opinion the Court determines that the arbitration award is valid and enforceable; that WMATA improperly withheld the pay increases from Local 2's members; and that the plaintiff is entitled to summary judgment on the third and fourth causes of action.

 BACKGROUND

 The Metropolitan Area Transit Authority Compact includes provisions fashioned especially for WMATA and its employees. Though the parties are in sharp disagreement as to the application of those provisions to the facts, the essential and material facts are not in dispute.

 For many years, certain employees of WMATA were represented for collective bargaining purposes by the Amalgamated Transit Union (Amalgamated). In early 1979, Local 2 notified WMATA that it had secured a majority of employee authorizations for collective bargaining purposes from the employees not represented by Amalgamated. WMATA refused to bargain, whereupon Local 2 filed an initial complaint in this Court, seeking recognition as a collective bargaining representative. Amalgamated was allowed to intervene in that proceeding. *fn3"

 That action raised the issue of the proper composition of the bargaining units for WMATA's nonrepresented employees, and the proper representatives for those units. On June 13, 1979, WMATA and the two unions signed an agreement which provided that Local 2 would withdraw its action, and that the parties would negotiate among themselves over the issue of the appropriate bargaining units. A key clause of that agreement provided:

 
In the event that the Unions [Amalgamated and Local 2] and the Authority [WMATA] are unable to reach agreement on the composition of the Collective Bargaining (Units), by August 15, 1979, the Authority will submit the Unit question to arbitration pursuant to Public Law 92-349 [the Compact], before a single arbitrator.4 (emphasis added)

 This agreement, in calling for a single arbitrator, made reference to the Compact, which provides for three arbitrators. *fn5" The reason for this change was the inability of the parties to conform precisely to the terms of the Compact. Under the Compact, one arbitrator was to be chosen by the union, a second by WMATA, and a third to be agreed upon by both the union and WMATA. However, because of conflict between the two unions, they could not agree upon one arbitrator. For that reason and at WMATA's suggestion, the three parties agreed upon a single arbitrator.

 Local 2 then withdrew its prior action, and the parties, upon failing to reach an agreement concerning the proper composition of the collective bargaining units, submitted the dispute to the American Arbitration Association. By virtue of the June 13th agreement, only a single arbitrator, Seymour Strongin, heard the case. Extensive hearings were held, with the three parties participating. Within a month, on July 10, 1980, Arbitrator Strongin issued his award, dividing the employees by job classification into two bargaining units, one for professional employees, a second for clerical employees. He also decided the sharply contested question as to whether certain jobs should be excluded from the bargaining units because they were supervisory, managerial or confidential.

 Following the award, Local 2 and WMATA made a number of changes, excluding certain employees who had been included by Arbitrator Strongin, while including others who had been excluded. The three parties then signed an election agreement providing for elections in the two established units. On December 16, 1980, in preparation for the elections, WMATA submitted to Local 2 and Amalgamated two voter eligibility lists, containing the names of the employees eligible to vote in each of the two units. The lists incorporated the findings of Arbitrator Strongin as to the proper composition of each unit, as well as the subsequent changes agreed upon by Local 2 and WMATA. All parties accepted the eligibility lists which then constituted the basis for the elections.

 In elections held in January 1981, Local 2 was certified as the winner in both units. Subsequent negotiations were held for yet further changes in the composition of the bargaining units, but no agreement was reached.

 Anticipating the upcoming bargaining sessions, Local 2 held elections among its employees in order to select members for its negotiating committees. Twelve employees, six from each unit, were selected, and contract proposals were submitted to WMATA.

 Because of the appointment of Richard Haddad as the new negotiator for WMATA, the bargaining sessions did not begin until September 1981. At the outset of the negotiations, WMATA contested the arbitrator's award; Local 2's status as the employees' proper bargaining representative; and the union status of approximately 300 employees -- about 60 percent of Local 2's total membership of 500 -- claimed by WMATA to be supervisory, managerial or confidential. Ten of the 12 members of Local 2's two bargaining committees were among the 300 challenged by WMATA. When WMATA requested arbitration before three arbitrators for resolution of these issues, Local 2, claiming that these issues had already been resolved by Arbitrator Strongin, filed this suit on October 13, 1981.

 In the same month, WMATA granted a cost of living wage adjustment, an increase of 7.7 percent, to all its nonrepresented employees. It withheld the increase from all of Local 2's members, claiming that the increase was subject to collective bargaining with Local 2.

 WMATA then proceeded to treat the recipients of the letter as nonrepresented employees, and therefore granted them the 7.7 percent increase. It withheld the increase from six recipients who contested their exclusion from the union.

 In October 1982, WMATA granted a second cost of living adjustment. That increase of 6.18 percent was withheld from the remaining members of Local 2, including the six who had protested their status the prior year. The employees who had been excluded from Local 2 by the letter of December 1981, except for the six who protested their exclusion, received the second increase.

 Based on the above recital of material and undisputed facts the Court will present in the succeeding sections of this Opinion an analysis of the parties' contentions as to the plaintiff's third and fourth causes of action.

 ANALYSIS

 A.

 THE THIRD CAUSE OF ACTION

 In the third cause of action Local 2 requests the Court to confirm Strongin's arbitration award and the subsequent elections, claiming that WMATA's refusal to recognize it as the collective bargaining representative for the two units violates section 66(b) of the Compact. *fn7" Local 2 also asks that WMATA be enjoined from requesting any change in ...


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