author: JOYCE HENS GREEN, District Judge.

text:
    Julia GUINN, Plaintiff, v. William F. BOLGER, Postmaster General of the United States, Defendant.
    Civ. A. No. 83-1319.
    United States District Court, District of Columbia.
    Nov. 26, 1984.

      Daniel B. Jordan, Washington, D.C., for plaintiff.
    Rebecca L. Ross, Asst. U.S. Atty., Washington, D.C., for defendant.
   MEMORANDUM OPINION AND ORDER

JOYCE HENS GREEN, District Judge.

Plaintiff Julia Guinn brings this action against defendant William F. Bolger, Postmaster General of the United States, under Sections 501(b) and 505(a)(1) of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791(b), 794a(a)(l). Plaintiff, a current employee of the United States Postal Service (USPS), claims that defendant discriminated against her on the basis of a handicapping condition by sending her home from work without pay before she had completed an eight-hour work shift on numerous occasions when she was on light duty status between May and November of 1982. Plaintiff requests injunctive and declaratory relief against defendant and an award of back pay and attorney’s fees. The parties' cross motions for summary judgment are now before the Court.

Facts

The material facts underlying plaintiff’s allegations are not in dispute. Plaintiff has been employed by the USPS since February 24, 1966, first as a postal clerk, then as a manual distribution clerk, and, since approximately 1979, as a multiple position letter sorting machine (MPLSM) operator. The function of the MPLSM is to sort mail automatically for distribution. The machine is operated by a crew of workers who rotate through three assignments: ledge-loading (emptying mail from trays onto ledges at the front consoles of the MPLSM), keying address distribution codes, and clearing letters from bins at the back of the machine where they are automatically transported by the machine after coding. Throughout her employment as an MPLSM operator, plaintiff has performed not only those three duties but others as well, including “culling” packages from conveyor belts and manual sorting. Some weeks she would work three, four or five days on the MPLSM, some weeks not at all. Guinn Dep. at 6-7. Plaintiff is employed on Tour II at the Washington, D.C. Post Office (7:00 a.m.-3:30 p.m.) and works five days a week.

On April 5, 1982, plaintiff consulted Dr. John Albrigo, an orthopedic surgeon, complaining of swelling, pain and stiffness of her knee joints. Dr. Albrigo diagnosed her condition as permanent osteoarthritis of the knee joints and recommended that she avoid work requiring prolonged periods of standing. As a result of that advice, plaintiff requested that USPS assign her to “light duty” consistent with her medical restrictions. She was granted temporary light duty status in April, 1982, and that status was renewed several times until the six-month maximum allowable term for temporary light duty expired on November 17, 1982. On light duty, plaintiff performed, in addition to her MPLSM functions, manual distribution work using a rest bar and other jobs which could be done in a sitting position.

Beginning on June 16, 1982, postal management determined that the mail volume on Tour II at the Washington D.C. Post Office did not justify the number of employees on hand. Consequently, management decided to send home employees on light duty assignments as a cost-cutting measure. Plaintiff and other light duty employees were sent home short, of working a full eight-hour day on 42 occasions prior to November, 1982. As a consequence, plaintiff was not paid or was permitted to use her accumulated leave for 270 scheduled hours that she did not work between May and November, 1982. Full-time employees not on light duty and employees on limited-duty status who had been injured while on duty were permitted to remain at work. Those employees had contractual guarantees of eight hours of work or pay per day, and sending them home would not result in any savings to the USPS.

Plaintiff filed a series of administrative complaints commencing on or about July 20, 1982, complaining that sending her home involuntarily because she was on light duty constituted discrimination based on a handicapping condition. Her administrative complaints were denied by USPS, and the Equal Employment Opportunity Commission (“EEOC”) sustained that denial by order dated March 22, 1983. The EEOC decision included a notice of right to sue; plaintiff filed this action on May 6, 1983. In addition, she has filed a grievance with her union' bargaining representative and that grievance is presently awaiting arbitration.

Discussion

The 1978 amendments to the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., provide a private cause of action to persons subjected to handicap discrimination by the federal government and its agencies. Prewitt v. U.S. Postal Service, 662 F.2d 292, 302 (5th Cir.1981). Those amendments added Section 505(a)(1), establishing a private cause of action in favor of persons pursuing claims under Section 501 of the Rehabilitation Act, and expanded Section 504’s proscription against handicap discrimination to cover programs or activities conducted by any executive agency or by the USPS. Id. at 304.

In light of the 1978 amendments the causes of action cognizable under Sections 501 and 504 overlap in part, and both provisions would allow redress of this plaintiffs particular claim, if proven. Id. at 304, see also Smith v. U.S. Postal Service, 742 F.2d 257 (6th Cir.1984). Plaintiff has chosen to bring her claim under Section 501 and thus, pursuant to Section 505(a)(1), the remedies, procedures and rights set forth in Section 717 of Title VII of the Civil Rights Act of 1964 (“Title VII”) govern this action. Shirey v. Devine, 670 F.2d 1188, 1194 (D.C.Cir.1982); Prewitt, 662 F.2d at 303.

The burdens ot proof in Rehabilitation Act cases under both Sections 501 and 504 are modeled after those developed under Title VII case law. See Guerriero v. Schultz, 557 F.Supp. 511, 513 (D.D.C.1983); Mantolete v. Bolger, 32 FEP Cases 1438, 1440 (D.Ariz.1982) (Section 504 and Section 501 cases, respectively, applying Title VII burdens of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973)). The plaintiff has the initial burden of proof to make out a prima facie case of discrimination. McDonnell Douglas at 801-02, 93 S.Ct. at 1823-24; Mantolete at 1440. To meet that burden, she must show (1) that she is handicapped within the meaning of the Rehabilitation Act, which defendant has conceded at oral argument, (2) that she is a “qualified handicapped person”, and (3) that defendant’s practice of sending plaintiff home from work before completion of her shift was motivated by her handicap or caused a handicap-related disparity, regardless of defendant’s intent. See Segar v. Smith, 738 F.2d 1249, 1266-67 (D.C.Cir.1984); see also Prewitt, supra.

The requirement that plaintiff be a “qualified handicapped person” is found not in the text of Section 501 but rather in the EEOC regulations which state, as general policy, that with respect to hiring, placement and advancement, “an agency shall not discriminate against a qualified physically or mentally handicapped person.” 29 C.F.R. § 1613.703 (emphasis added). That policy applies to discrimination programs established by the U.S. Postal Service, among other entities. See 29 C.F.R. § 1613.701(b). A “qualified handicapped person” is defined under the regulations as one who:

... with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and safety of the individual or others____

29 C.F.R. § 1613.702(f). Thus, under this scheme of regulations, plaintiff’s prima facie case must include a showing that with or without reasonable accommodation, she was able to perform the essential functions of her job when she was sent home from work between May and November, 1982.

The central issue at the oral hearing on this motion was the scope of the “essential functions” of plaintiffs job. Plaintiff argues that the boundaries of the essential functions of an MPLSM operator’s job are set by the standard position description (SPD) for that position. The SPD (DX-B) states that the “basic function” of an MPLSM clerk is to “operate an electro mechanical machine ...” and that the “duties and responsibilities” of the job include the ledge-loading, address-code keying, and bin-emptying functions described in the facts of this opinion, as well as culling nonmaehinable mail from the MPLSM, verifying sorted mail for accuracy, tying mail in bundles, traying and/or dispatching. All of these functions are related to operation of the MPLSM. The SPD also states that an MPLSM clerk may be required to qualify on one or more distribution schemes where essential to the assignment and may also be required to perform manual distribution. Necessary skills listed in the SPD include knowledge and application of distribution schemes or memory items used for non-ZIP-coded mail, an ability to operate the MPLSM with 98% accuracy and at fixed sorting speeds, manual and visual coordination, and close visual attention. The USPS qualification standard for this position refers the reader to the SPD for a description of the work, restates the SPD in part, and states minimum eyesight requirements for MPLSM operators. Plaintiff argues that her physical limitations do not restrict her ability to perform any and every task described in the SPD, and on that basis she argues that she is “qualified” within the meaning of 29 C.F.R. § 1613.702(f) to maintain a handicap discrimination claim.

Defendant responds that the position description does not reflect the true parameters of plaintiff’s job. According to the Declaration of Carl Leon Pink (“Pink Deck”), a USPS tour superintendent, “LSM clerks perform many other duties in addition to those directly associated with the MPLSM. The additional duties may include dumping sacks of mail as they come into the Post Office.” This culling, which the Court understands is more rigorous than the “culling” which takes place at the MPLSM and is referenced in the SPD, involves “standing at a conveyor belt____” Pink Deck at 116. The tour superintendent further states that “[bjecause of the varied duties of an LSM operator, it is essential that an LSM operator be capable of standing for prolonged periods.” Pink Deck at II7. As defendant’s condition will not permit her to do work requiring prolonged standing, defendant argues that she has not met the prima facie requirement of showing that she is “qualified” within the meaning of Section 1613.702(f).

Defendant has erred in defining the “essential functions” of plaintiff’s job with reference to the tasks she actually performs as opposed to those set forth in the SPD. Plaintiff’s deposition confirms that throughout her tenure as an MPLSM clerk she was assigned to perform tasks unrelated to operation of that machine, including culling at the conveyor belt, an assignment requiring prolonged standing. However, her willingness (or at least, non-refusal) to follow the orders of her supervisor cannot be turned against her to limit her rights to the protection of the Rehabilitation Act. Regardless of the nature of the work she actually performed, the “essential functions” of the job she was hired to do remained the same. Defendant’s argument that SPDs provide only rough estimates of “essential functions” and are designed for the purpose of fixing compensation rates (See Declaration of Fred J. Hintenach, DX-11 at ¶ 2) is wholly unconvincing.

The Court can of course appreciate the need for employee flexibility in an institution like USPS with operational needs which vary from one facility to the next, from one tour to the next, and from one day to the next. Plaintiff herself has stated that the number of hours actually spent at the MPLSM per week vary considerably. Defendant is free to expand or contract the duties of an employee to suit its changing needs, but in so doing cannot alter plaintiff's right to seek protection under the Rehabilitation Act on the basis of her own job description. Numerous courts entertaining Rehabilitation Act claims have looked to position descriptions in assessing the essential functions of a job. See e.g., Treadwell, 707 F.2d at 476 n. 5; Prewitt, 662 F.2d at 298; Coleman v. Darden, 595 F.2d 533, 535 (10th Cir.1979), cert. denied, 444 U.S. 927, 100 S.Ct. 267, 62 L.Ed.2d 184 (1979); Jasany, 33 FEP Cases at 1117 (holding that because plaintiff was not hired “as a general postal employee to serve various functions within the post office” but “was employed specifically” as the operator of a high speed letter sorting machine, defendant’s duty to provide reasonable accommodation for his handicap was limited to “adjustments within the job for which [he] was hired”); see also Daubert v. U.S. Postal Service, 733 F.2d 1367, 1368 (10th Cir.1984) (drawing job requirements from vacancy announcement). In some of these cases agency affidavits were submitted to reinforce position descriptions, see Prewitt, 662 F.2d at 298; in none were they used as evidence that a position description misstated the duties of a job. Defendant, not plaintiff, is responsible for the content of the SPD and plaintiff is entitled to rely on it as a statement of the essential functions of her job for the purpose of stating a prima facie case under the Rehabilitation Act. By asserting that she stands ready to perform any task listed in that SPD, even without accommodation, and that defendant’s decision to send her home from work had a discriminatory impact or motivation, plaintiff has made a prima facie case of handicap discrimination.

The burden of persuasion now shifts to defendant to challenge plaintiff’s showing or produce an explanatory defense for its practice of dismissing plaintiff on reduced-volume work days. See Segar, 738 F.2d at 1267-68. Defendant explains its practice as an economic measure compelled by “business necessity”, see Prewitt, 662 F.2d at 306: in the words of the tour supervisor, light duty employees such as plaintiff who had no contractual right to eight hours of work or pay per day, were the most “expendable”. PX-P1. The paradox of this explanation is that plaintiff’s status as a light duty employee during the time in question traces to defendant’s redefinition of her job. Had defendant required that plaintiff perform only those functions she was hired to do, she would have had no reason or basis for claiming light duty status. In other words, had defendant honored its own SPD’s job description, plaintiff would have remained on full duty and defendant would have had no economic incentive to release her from work early without pay. In these circumstances, defendant’s proffered justification for its action disintegrates, and plaintiff's prima facie ease stands unrebutted. Under Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), the Court’s inquiry is complete. Accordingly, it is, by the Court, this 26th day of November, 1984.

ORDERED that defendant’s motion for summary judgment is hereby denied; and it is further

ORDERED that plaintiff’s motion for summary judgment is hereby granted.

An appropriate Judgment accompanies this Memorandum Opinion and Order. Plaintiff has not yet provided to the Court the precise figure representing plaintiff’s monetary losses resulting from defendant’s discriminatory actions. She is, nonetheless, entitled to that sum, to be determined by the parties, which will compensate her for all wages and other benefits lost as a result of defendant’s practice of releasing plaintiff from her duties prior to the end of an 8-hour work day by reason of her status as a light-duty employee between May, 1982 and November, 1982.

No further hearing shall be necessary and this cause therefore stands concluded.

      . It is clear from the pleadings that plaintiffs references to "Section 794(a)(1)” are intended as references to Section 794a(a)(l).

      . Section 505(a)(1), 29 U.S.C. § 794a(a)(l), provides:
      "The remedies, procedures, and rights set forth in section 717 of the Civil Rights Act of 1964, including the application of sections 706(f) through 706(k), shall be available, with respect to any complaint under section 791 of this title, to any employee or applicant for employment aggrieved by the final disposition of such complaint, or by the failure to take final action on such complaint. In fashioning an equitable or affirmative action remedy under such section, a court may take into account the reasonableness of the cost of any necessary work place accommodation, and the availability of alternatives therefor or other appropriate relief in order to achieve an equitable and appropriate remedy.”

      . The duties of the federal government are set forth in Section 501(b), 29 U.S.C. § 791(b) as follows:
      "Each department, agency, and instrumentality (including the United States Postal Service and the Postal Rate Commission) in the executive branch shall ... submit to the Civil Service Commission and to the [Interagency Committee on Handicapped Employees] an affirmative action program plan for the hiring, placement, and advancement of handicapped individuals in such department, agency, or instrumentality. Such plan shall include a description of the extent to which and methods whereby the special needs of handicapped employees are being met.”

      . Section 504, 29 U.S.C. § 794 states in pertinent part:
      “No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or any program or activity conducted by any Executive agency or by the United States Postal Service." (Emphasis supplied.)

      . Defendant does not dispute that plaintiff has exhausted her administrative remedies, as she is required to' do under Title VII procedure. See Prewitt, 662 F.2d at 303; Connolly v. U.S. Postal Service, 579 F.Supp. 305, 307 (D.Mass.1984).

      . The case law has led to some confusion regarding the effect of the phrase “with or without reasonable accommodation” in Section 501 actions. In a Section 504 action against a private employer receiving Federal funds, the Supreme Court has held that an “otherwise qualified [handicapped] person” within the meaning of Section 504 is “one who is able to meet all of a program’s requirements in spite of his handicap", as opposed to one who would be able to meet the program’s requirements in every respect except as to limitations imposed by his or her handicap. Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979) (emphasis added). Section 501, unlike Section 504, does not refer to “otherwise” qualified handicapped persons, and the Court of Appeals for this Circuit has left open the possibility that, despite the language of Southeastern, the affirmative action obligation of Section 501 may "require or permit more than mere equal treatment — i.e. some reasonable degree of modification to accommodate certain handicaps.” Shirey, 670 F.2d at 1204 n. 46. The Eleventh Circuit Court of Appeals squares the language of Southeastern with the affirmative action obligations imposed by Section 501 (but absent from Section 504) by quoting the Supreme Court’s above-cited holding and concluding;
      "A [federally-employed] plaintiff who could perform the essentials of the job if afforded reasonable accommodation would be entitled to relief. The necessity for providing reasonable accommodation is derived from the express language of § 501(b) requiring the federal government to undertake affirmative action on behalf of handicapped applicants and employees.” Treadwell
        v. Alexander, 707 F.2d 473, 477 (11th Cir.1983) (emphasis added); see also Jasany v. U.S. Postal Service, 33 FEP Cases 1115, 1117 (N.D.Ohio1983) (Section 504 action against federal employer with affirmative action obligation). For the reasons that follow in the text, this case turns not on the issue of accommodation but on the definition of the essential functions of plaintiffs job.

      . Plaintiff asserts, and defendant appears not to dispute, that the culling function listed in the SPD involves only culling at the MPLSM and not culling heavy boxes from the Post Office conveyor belts. See Plaintiffs Memorandum in Opposition to Defendant's Cross-Motion at 6.

      . A "scheme” is a list of several hundred memory items used by a clerk sorting mail to associate addresses with delivery routes. Declaration of David Robinson at ¶ 5.

      . Attachment to Declaration of Kaye DeShields dated July 19, 1984.

      . See n. 7, supra.

      . In Stalkfleet v. U.S. Postal Service, 6 MSPB 536, 541 (1981), a case without precedential value, the MSPB relied on Coleman in holding that "an examination of the legitimate job requirements and duties set forth in the position description is essential to the resolution" of the plaintiffs Section 501 claim.


source: Caselaw Access Project

author: RAYMOND J. BRODERICK, District Judge.

license: Public Domain

text:
    Carmelo RIVERA v. Margaret HECKLER, Secretary of Health and Human Services.
    Civ. A. No. 83-2822.
    United States District Court, E.D. Pennsylvania.
    Nov. 26, 1984.

      Sol R. Gitman, Thomas F. McDevitt, Philadelphia, Pa., for plaintiff.
    Edward S. G. Dennis, Jr., U.S. Atty., Edward T. Ellis, Asst. U.S. Atty., Philadelphia, Pa., for defendant.
   MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

In this Social Security action the claimant, Carmelo Rivera, appeals from a determination by the Administrative Law Judge (AU) denying his application for disability benefits. The parties filed cross-motions for summary judgment. United States Magistrate Peter B. Scuderi has issued a report with a recommendation that the claimant’s motion for summary judgment be granted, the decision of the Secretary reversed, and the case remanded to the Secretary for a calculation of benefits. Commendably, given the record in this case, the Secretary has filed no objections to the Magistrate’s Report and Recommendation. Because the Magistrate’s report raised disturbing questions concerning the propriety of the AU’s consideration of the evidence, this Court has undertaken a de novo review of the matter. For the reasons which follow, this Court agrees with Magistrate Scuderi that the claimant’s motion for summary judgment must be granted and the decision of the Secretary reversed.

The claimant is a twenty-four year old man with a sixth grade education who was born in Puerto Rico and came to the United States in 1973. At the time of the hearing before the AU, the claimant was married with a seventeen month old child. The claimant does not speak English, and does not read or write fluently in Spanish. Pri- or to December of 1979 the claimant worked as a “hand-trucker”, pushing carts of scrap metal, and previous to that employment he held various jobs as an unskilled laborer. In his application for disability benefits, the claimant alleges that he became disabled on or about December 12, 1979, due to a severe back condition. In a decision dated March 17,1983, denying the claimant’s application for disability benefits, the AU found that the claimant has lumbar disc disease and acute lumbar contusion; that the claimant’s allegations of severe disabling pain are not credible; and that although the claimant is unable to return to his past relevant work as a hand-trucker, he can “perform work-related functions except for work involving heavy lifting and prolonged standing and walking with the avoidance of bending, pushing, and pulling” (i.e., the claimant can perform sedentary work). The AU then applied the medical-vocational guidelines set forth in Appendix 2 of the regulations to the medical and vocational characteristics of the claimant and determined that the claimant is not disabled. The Appeals Council summarily affirmed the AU’s decision. Because the AU’s decision (relying in part on the opinion of a chiropractor) is not supported by substantial evidence, and because the AU impermissibly drew unfounded (indeed, astounding) inferences concerning the claimant’s credibility from the facts in evidence, the decision of the Secretary will be reversed.

In reviewing final determinations by the Secretary after an administrative hearing, courts are bound by the Secretary’s findings of fact if they are supported by “substantial evidence,” that is, such evidence as a reasonable mind would accept to form a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

Recently the Third Circuit again has summarized the legal analysis applicable in social security appeals:

Disability determination proceedings before an AU involve shifting burdens of proof. ' The claimant bears the initial burden of proving that he or she is disabled. The claimant satisfies this burden by showing that he or she cannot return to his or her customary occupation. Once this burden is met, the burden shifts to the Secretary, who must prove that the claimant can still engage in substantial gainful activity. The Secretary satisfies this burden by showing that given claimant’s age, education, and work experience, he or she can still perform specific jobs that exist in the national economy. Rossi v. Califano, 602 F.2d 55, 57 (3d Cir.1979).

Podedworny v. Harris, 745 F.2d 210, at 216-217 (3d Cir.1984). In the present case, the claimant satisfied his initial burden by demonstrating his inability to return to his former occupation. The AU found that the claimant has the residual functional capacity to perform sedentary work. The validity of this finding depends upon whether the AU was justified in rejecting (1) the medical evidence presented as to the claimant’s disability and pain; and (2) the testimony of the claimant as to his disability and pain. Podedworny v. Harris, at 217.

The claimant was injured on October 3, 1979, when a car fender fell four feet from an overhead conveyor belt and struck his lower back. He was treated as an outpatient at Jeanes Hospital without success for several weeks, and was admitted to Jeanes Hospital on October 15, 1979. At the time of his admission, claimant was unable to stand erect, and had severe lower back pain “with significant spasm of both lower lumbar and paralumbar musculature” (R. 128). The diagnosis was acute lumbar contusion. In addition, x-rays revealed intense sclerosis of the anterior inferior portion of the back on the right side, as well as end plate irregularity, osteophyte formation, and subchondral cyst formation at the L-2 and L-3 levels of the spine. These findings were diagnosed as discogenic disease with degeneration, which was believed to be unrelated to the claimant’s work injury (R. 128-31). The claimant was treated with bed rest, physical therapy, and medication for pain, and discharged on October 19, 1979.

The claimant attempted to return to work but was unable to continue because of severe pain (R. 49). He was treated by a company physician without success and finally ceased working altogether in December of 1979, when he was laid off (R. 19).

The claimant apparently received intermittent, unsuccessful treatment for his back pain in 1980, including a back brace prescribed by a “workmens’ compensation doctor” (R. 57). On December 29, 1980, claimant was examined by Dr, Krause, an orthopedic surgeon. Dr. Krause concluded that the October 1979 accident had caused a permanent and significant musculo-ligamentous sprain of the lumbo-sacral and left ilio sacral areas of the back, and that this condition would preclude the claimant from returning to his past work (R. 140). Furthermore, Dr. Krause reported that a review of the x-rays indicated the presence of a “pathology” involving the claimant’s second and third lumbar vertebrae, which pathology made the claimant’s prognosis “much more grave” and “limits even more” any potential for future employment (R. 140).

In July of 1982 the claimant was hospitalized for sixteen days at Episcopal Hospital. The claimant had muscle spasms over the L-l to L-4 region of the back and hamstring spasms. The bone scans showed osteomyelitus and disc space infection of the L-2, L-3, and L-4 vertebral bodies. The discharge diagnosis was probable tuberculosis of the spine. The claimant was started on several medications and fitted with a Knight brace “to prevent further degeneration and collapse of the spine” (R. 149). Dr. Kallish, claimant’s orthopedic physician, reported that claimant would be unable to work for an undetermined period of time (R. 146).

The claimant continued to be treated for tuberculosis of the spine at Episcopal Hospital in 1982. X-rays taken in December of 1979 showed disc loss at the L-2, L-3, and L-4 levels, although there was no evidence of “destruction” associated with a tuberculosis etiology (R. 161). Dr. Bumgardner, an orthopedic surgeon in the hospital’s clinic, reported on December 22, 1982 that the claimant was continuing to receive treatment for tuberculosis of the spine (R. 157). In addition, a report from a physician prepared on October 14, 1982 for the Commonwealth of Pennsylvania’s Department of Public Welfare stated that the claimant has tuberculosis of the spine; that the claimant is taking a variety of medications, including Darvocet for pain, that the claimant cannot do even light work because he has “constant pain, sitting or standing”; and that the prognosis for any improvement was “poor” (R. 163).

In response to a set of written interrogatories propounded by the AU, Dr. Learner, a specialist in internal medicine, stated that in his opinion the record showed that the claimant has lumbar disc disease and acute lumbar contusion; that the claimant has chronic low back pain due to lumbar disc disease; and that the claimant would be unable to do any lifting, bending, standing, walking, pushing, or pulling (R. 152-56). Dr. Learner also stated that in his opinion, based on the record, the claimant does not have tuberculosis of the spine. Dr. Learner stated that despite the positive tuberculin test, the x-rays which showed no evidence of the destruction expected with a tuberculosis etiology, as well as the normal sedimentation rate and absence of biopsy, precluded a diagnosis of spinal tuberculosis (R. 169).

Finally, the record in this case includes a phone contact from Dr. Matura, who had treated the plaintiff intermittently for his back pain in 1981-82 until the plaintiff apparently became dissatisfied with his treatment and sought relief at Episcopal Hospital (R. 9). Dr. Matura reported that x-ray results were negative; that although “there may be muscle spasms” the claimant “has full range of motion in his spine and all extremities”; that x-rays showed no arthritic changes in the spine; and that the claimant “was capable of any kind of work” (R. 144).

Dr. Matura’s findings are incredible in light of the otherwise unanimous medical opinions that the claimant has a severe back impairment involving degenerative disc disease, if not tuberculosis of the spine. The record showed that Dr. Matura was not listed in the A.M.A. Directory for 1982, and the AU stated in his report that Dr. Matura’s qualifications were “unknown”. As Magistrate Scuderi noted, “a thirty second perusal of the Philadelphia yellow pages” reveals that Dr. Matura is a chiropractor. Although 20 C.F.R. § 404.-1513(e)(3) provides that a claimant may provide information from non-medical practitioners such as naturopaths and chiropractors to “help [the administration] understand how claimant’s impairment affect [claimant’s] ability to work”, the regulations clearly provide that medical evidence of a claimant’s impairment may be received only from “medically acceptable sources” including, inter alia, licensed physicians and osteopaths. Chiropractors are not listed among the “medically acceptable sources” set forth in 20 C.F.R. § 404.-1513(a). Although the record in this case does not support the conclusion suggested by the Magistrate that the ALJ intentionally mischaracterized the evidence, the record clearly supports this Court’s determination that the AU erred in finding that the claimant in this case is not disabled.

It is clear that no substantial evidence exists upon which to base a finding of non-disability. The claimant’s treating physician from Episcopal Hospital has stated that the claimant is suffering from tuberculosis of the spine and is unemployable for an indeterminate amount of time. The claimant’s treating physician’s opinion is entitled to substantial weight. Wier v. Heckler, 734 F.2d 955, 961 (3d Cir.1984); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.1981). The physician who examined the claimant at the request of the Commonwealth’s Department of Public Welfare also concurred with this diagnosis. As the AU recognized, a finding of tuberculosis of the spine would, under the regulations, compel a finding of disability. Claimant’s consulting orthopedist, Dr. Krause, while not privy to the subsequent test results conducted at Episcopal Hospital indicating tuberculosis of the spine, nevertheless recognized from the x-rays alone that the claimant had a significant “pathology” in the lumbar vertebrae which rendered the prognosis for claimant’s future employment “grave”.

As noted above, Dr. Learner, who responded to written interrogatories at the request of the AU, disputed the diagnosis of tuberculosis of the spine. Since Dr. Learner did not examine the claimant, and evaluated the claimant’s subjective complaints only on the basis of the record placed before him, his opinion must be accorded less weight than if he had treated or examined the claimant. Weir v. Heckler, 734 F.2d at 963; Cotter v. Harris, 642 F.2d at 704. Thus, this Court has concluded that substantial evidence does not support the AU’s rejection of the claimant’s physician’s diagnosis of tuberculosis of the spine.

Even assuming that the tuberculosis of the spine diagnosis could be fairly disputed, the AU’s finding that the claimant could do sedentary work is not supported by substantial evidence because of the AU’s improper rejection of the claimant’s allegations of disabling pain. In this Circuit it is well-established that pain in and of itself may be a disabling condition. Taybron v. Harris, 667 F.2d 412, 415 (3d Cir.1981); Smith v. Harris, 644 F.2d 985, 988 (3d Cir.1981). In fact, “even pain unaccompanied by objectively observable symptoms which is nevertheless real to the sufferer and is so intense as to be disabling will support a claim for disability benefits”. Taybron v. Harris, 667 F.2d at 415 quoting Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir.1971). The Third Circuit recently has emphasized that “testimony of subjective pain and inability to perform light work should be accorded great weight, especially when it is supported by competent medical evidence.” Podedworny v. Harris, at 217, citing Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir.1979). See also Weir v. Heckler, 734 F.2d at 961; Smith v. Califano, 637 F.2d 968, 972 (3d Cir.1981).

In the present case the claimant testified to severe pain at the hearing, and several times he asked permission to rise to alleviate the pain (R. 40, 44). He testified that he experiences constant, severe pain in his back which extends down his left leg; that he cannot walk any distance without pain; that he can do no lifting or bending; that he can sit still for only about five minutes without having to get up to alleviate the pain; and that he wears a backbrace and takes medication for the pain (R. 56-59). He also testified that he does not drive a car (R. 46); that he does not attend church, that he participates in no social activities, clubs, or hobbies; and that on a typical day he simply goes downstairs once a day and remains in the living room all day (R. 59). The medical evidence of record fully corroborates claimant’s allegations of disabling pain. Even Dr. Learner’s report acknowledges that the claimant’s chronic pain would preclude him from employment requiring any exertion at all.

The AU, however, was not convinced. He determined that the claimant’s allegations of severe pain were not credible. This Court has determined that it is the AU’s findings, and not the claimant’s testimony, which must be rejected as incredible. First, the AU decided that the claimant’s allegations of pain associated with walking were not credible because he used “no type of assistive device to ambulate” (R. 23). However, the AU also noted that the claimant was assisted in walking to the hearing room by his sister-in-law (R. 40). This Court cannot conclude that one who relies upon a person to assist him in walking is somehow less credible with respect to his complaints of pain than one who relies upon a cane or crutch.

Second, it appears that almost from the outset of the hearing, the AU was determined to discover trivial inconsistencies in the claimant’s testimony from which to draw adverse inferences regarding credibility. For example, the AU proceeded to question the claimant closely regarding his automobile driver’s license examination and his driving history (R. 44-47). Having elicited from the claimant that he once owned a . car but no longer does, and that he no longer drives a car, the AU, as if on cross-examination, confronted the claimant with the claimant’s application for disability insurance in which the claimant’s translator had written “I can drive a car for short distances”. (R. 111). When the claimant; understandably puzzled, inquired as to the relevance of these questions, the AU replied “It goes to the credibility of your testimony that you’ve given so far.” . (R. 46). Of course, a person who does not own a car and who generally does not drive because of back pain is not necessarily unable to drive a short distance if the need arose, and thus the claimant’s testimony was not inconsistent with his application. More disturbing is the AU’s inappropriate prosecutorial style and his attempt to draw adverse credibility inferences from trivial and irrelevant inconsistencies in the record.

Third, the AU decided that the claimant’s discomfort could not be severe because it was “not such as to require extensive medication (Darvocet) or to have indicated that he could not concentrate on or participate in the hearing other than to get up periodically during the hearing.” (R. 23). The claimant, in addition to other medications, takes 100 mg. of Darvocet four times daily for pain. While it is not certain what prescribed medication (and in what dosage) would persuade the AU that the claimant’s allegations of severe pain are believable, it is clear that the AU’s credibility inference here was impermissible because (1) it improperly was based upon his own medical expertise, see Van Horn v. Schweiker, 717 F.2d 871, 874 (3d Cir.1983), and (2) it was based upon “the roundly condemned ‘sit and squirm’ method of deciding disability cases.” Id. Even the AU’s “sit and squirm” analysis is inexplicable because in fact during the hearing the claimant requested permission to rise in order to alleviate his pain. (R. 40, 44).

Undaunted, the AU saved his best credibility finding for last. As noted above, at the time of the hearing (January 5, 1983) the claimant’s child was seventeen months old. In a tour de force unequalled in this Court’s experience reviewing social security appeals, the AU, on the record, counted back twenty-six months and státed that “[since] [i]t would be about October of ’80 the child was conceived, I draw the conclusion he’s having relationships with his wife at least in, up until October of ’80.” (R. 59). When the claimant’s attorney agreed that “it wasn’t a test tube baby”, the AU stated “there’s certain inferences I’m going to draw from that, there is some physical activity, you know.” (R. 59-60). The AU repeated this conclusion in his findings: “the claimant has a seventeen month old son whose conception in October 1980 or thereabouts was within the claimant’s physical capacity limit.” (R. 9).

It is now well-settled in this Circuit that

Disability does not mean that a claimant must vegetate in a dark room excluded from all forms of human and social activity ... It is well established that sporadic or transitory activity does not disprove disability... [It is] error [to draw] an inference from sporadic activities to a lack of disabling pain...

Smith v. Califano, 637 F.2d at 971-72. This Court has no hesitancy in concluding that, as a matter of law, evidence that a claimant was “having relations with his wife” some two years prior to the disability hearing does not support an inference that his allegations of severe pain are not credible. Where, as here, “all evidence as to disabling pain is favorable to the plaintiff”, and “since there is no factual basis upon which the ALJ could reject [claimant’s testimony of disabling pain], his subjective complaints ... stand unrebutted.” Smith v. Califano, 637 F.2d at 972, quoting Lund v. Weinberger, 520 F.2d 782, 785 (8th Cir.1975).

For all the reasons set forth above, the Court has determined that no substantial evidence exists to support the AU’s finding that the claimant is not disabled. Disregarding the ALJ’s improper consideration of the chiropractor’s report and his unfounded inferences as to claimant’s credibility, it is clear that the Secretary’s decision cannot stand. Accordingly, this Court will, in its discretion, Podedworny v. Harris, at 221, reverse the decision of the Secretary and remand for a calculation of benefits beginning December 12, 1979. An order follows.

ORDER

AND NOW, this 26th day of November, 1984, upon consideration of the Report and Recommendation of United States Magistrate Peter B. Scuderi, this Court having made a de novo determination of the matter pursuant to Local Rule 7(IV)(b), for the reasons set forth in this Court’s Memorandum of November 26, 1984,

IT IS HEREBY ORDERED:

1. The Report and Recommendation of the Magistrate is APPROVED and ADOPTED as modified by this Court’s Memorandum of November 26, 1984.

.2. The motion of the defendant Secretary of Health and Human Services for summary judgment is DENIED.

3. The motion of the plaintiff, Carmelo Rivera, for summary judgment is GRANTED.

4. The decision of the Secretary of Health and Human Services is REVERSED, and judgment is ENTERED in favor of the plaintiff, Carmelo Rivera, and against the defendant Secretary of Health and Human Services.

5. This matter is REMANDED to the Secretary for a calculation of benefits beginning December 12, 1979.


author: SWEET, District Judge.

text:
    UNITED STATES of America, v. Chokwe LUMUMBA, Defendant.
    No. 83 Cr. Misc. 1 p. 46 (RWS).
    United States District Court, S.D. New York.
    Nov. 26, 1984.
    As Amended Dec. 11, 1984.

      Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. by Stacey S. Moritz, Robert Litt, Asst. U.S. Attys., New York City, for U.S.
    Hill, Lewis, Adams, Goodrich & Tait, Detroit, Mich, by Anthony Adams, Detroit, Mich., of counsel; Edison, Davis & Lumumba, Detroit, Mich, by Harry Davis, Detroit, Mich., of counsel, for defendant.
   OPINION

SWEET, District Judge.

Remand of this criminal contempt was ordered by the Court of Appeals in its July 27,1984 reversal of the Honorable Kevin T. Duffy’s judgment of conviction of Chokwe Lumumba (“Lumumba”) entered pursuant to Fed.R.Crim.P. 42(a) and 18 U.S.C. § 401. Motions were invited by the court and were heard to determine the scope of the remand and the nature of the proceedings to be held upon remand. The retrial will be governed by the procedure as described below.

The Court of Appeals stated that where the contempt charged occurred in the presence of the court but the adjudication and punishment were deferred, and where there may be some residue of personal antipathy between the alleged contemnor and the presiding trial judge, the alleged contemnor must be given an opportunity to be heard before a judge other than the one presiding at trial, before a final adjudication of the contempt conviction. See Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 4 L.Ed.2d 897 (1974); Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974). The Circuit opinion concluded: “On remand, the district court need not hold a full-blown trial, but Lumumba should be allowed a reasonable opportunity to defend or explain his actions or present arguments in mitigation. See Taylor v. Hayes, 418 U.S. at 499 [94 S.Ct. at 2703].” U.S.A. v. Chokwe Lumumba, 741 F.2d 12 at 17 (2nd Cir.1984). Of course, as noted in the opinion of this court filed November 17, 1983, Lumumba did explain his actions and presented arguments in mitigation, including an immunity defense. 578 F.Supp. 100 (N.Y.1983). Obviously, in view of the reversal, something more is required.

Both the Government and Lumumba’s counsel submitted papers and argued orally about the procedures to be followed in connection with the mandated hearing. Lumumba urges he be given written notice of the charges, a jury trial, and discovery of the evidence to be introduced by the Government. The Government has resisted these demands and stated its intention to rely upon the record of the trial conducted by Judge Duffy, in the course of which Lumumba was cited and convicted of contempt in the presence of the court.

Notice

The Second Circuit has held, in In re Sadin, 509 F.2d 1252 (2d Cir.1975), that where there is actual knowledge of pending contempt charges, formal notice is not necessary in order to satisfy due process requirements.

Appellant further claims that the contempt order of July 17, 1974, should be vacated because he was not givén proper notice. In [State v.] Handler, supra, 476 F.2d [709] at 713 [2d Cir.1973], we held, in light of the witness’s actual knowledge of the nature of the contempt proceeding against him, that there was no denial of due process by failure to provide formal notice. Here, appellant and his court-appointed counsel had adequate notice of the July 19,1974 hearing. Moreover, notice is provided for in Rule 42(b), Federal Rules of Criminal Procedure, in order to allow a reasonable time for the preparation of a defense. The notice here was adequate for, as we found above, appellant had a reasonable time to prepare his defense.

See also Musidor, B. V. v. Great American Screen, 658 F.2d 60 (2d Cir.1981), cert. denied, 455 U.S. 944, 102 S.Ct. 1440, 71 L.Ed.2d 656 (1982).

The actual notice in this case is sufficient to satisfy due process requirements, and no additional formal notification of the nature of the pending charges is therefore required.

Jury Trial

The requirement of a jury trial does not attach to “petty” criminal offenses. As the Supreme Court explained in its opinion cited by the Court of Appeals:

[0]ur cases hold that petty contempt like other petty criminal offenses may be tried without a jury and that contempt of court is a petty offense when the penalty actually imposed does not exceed six months or a longer penalty has not been expressly authorized by statute. Cheff v. Schnackenberg, 384 U.S. 373 [86 S.Ct. 1523, 16 L.Ed.2d 629] (1966); Bloom v. Illinois, 391 U.S. 194 [88 S.Ct. 1477, 20 L.Ed.2d 522] (1968); Dyke v. Taylor Implement Mfg. Co., Inc., 391 U.S. 216 [88 S.Ct. 1472, 20 L.Ed.2d 538] (1968); Frank v. United States, 395 U.S. 147 [89 S.Ct. 1503, 23 L.Ed.2d 162] (1969); Baldwin v. New York, 399 U.S. 66 [90 S.Ct. 1886, 26 L.Ed.2d 437] (1970). Hence, although petitioner was ultimately found guilty and sentenced separately on eight counts of contempt, the sentences were to run concurrently and were, as the Kentucky Court of' Appeals held, equivalent to a single sentence of six months.
[I]n the absence of legislative authorization of serious penalties for contempt, a State may choose to try any contempt without a jury if it determines not to impose a sentence longer than six months____ We remain firmly committed to the proposition that “criminal contempt is not a crime of the sort that requires the right to jury trial regardless of the penalty involved.” Bloom v. Illinois, supra [391 U.S.], at 211 [88 S.Ct. at 1487]; cf. Argersinger v. Hamlin, 407 U.S. 25, 30 [92 S.Ct. 2006, 2009, 32 L.Ed.2d 530] (1972).

Taylor v. Hayes, supra, 418 U.S. at 495-6, 94 S.Ct. at 2701-2. Further, of course, I have previously held that contrary to his contention, Lumumba was not entitled to a jury trial, and there is no indication from the Court of Appeals that its reversal was directed to that aspect of my determination. Its reference to a hearing other than “a full blown trial” in my view supports my prior ruling that a jury trial is not required. Consequently, the hearing mandated by the remand will be held without a jury.

Scope of Evidence to be Introduced

The Government has stated its intention to base its case upon the transcript of proceedings in the trial before Judge Duffy, certified as necessary pursuant to 28 U.S.C. § 753(b). See Mayberry v. Pennsylvania, 400 U.S. 455, 466, 91 S.Ct. 499, 505, 27 L.Ed.2d 532 (1971).

Lumumba will be given an opportunity “to be heard in his own behalf ... [and to] present matters in mitigation or otherwise attempt to make amends with the court.” Taylor v. Hayes, supra, 418 U.S. at 499, 94 S.Ct. at 2703. The evidence introduced by Lumumba will address the appropriateness of Lumumba’s own conduct at the time of the alleged contemptuous acts, not the alleged bias of the presiding judge. Those cases cited by Lumumba to establish the relevance of the bias of the presiding judge address the distinct issue, no longer relevant, whether the judge presiding at trial should preside in the adjudication of the contempt charge. That question has already been addressed in this case.

Offutt v. United States involved a sequence strikingly similar to the case here. At trial, the presiding judge found Offutt in criminal contempt, and at the close of trial the judge sentenced Offutt pursuant to Fed.R.Crim.P. 42(a). Because of the personal animosity displayed by the judge at trial, the Supreme Court reversed the trial judge’s findings and directed that another judge preside over the second hearing of the contempt charge against Offutt. 348 U.S. 11, 18, 75 S.Ct. 11, 15, 99 L.Ed. 11 (1954). Upon remand to the district court and subsequent appeal, the Court of Appeals made the following ruling:

We add that in the exercise of a sound discretion the hearing judge may control the scope of testimony and the number of witnesses, to avoid cumulative testimony and prevent placing on trial either the judge before whom the alleged contempt occurred or the prosecutor in the Peckham trial. What is required, however, is that the accused be permitted to adduce testimony which fairly depicts to the deciding judge the actual conduct of the accused in the setting in which it occurred. (Emphasis added)

Offutt v. United States, 232 F.2d 69, 72 (D.C.Cir.1956), cert. denied, 351 U.S. 988, 76 S.Ct. 1049, 100 L.Ed. 1501 (1956). Similarly, in Howell v. Jones, 516 F.2d 53 (5th Cir.1975) the court held that the alleged bias of the judge presiding at trial was “not material to the issue of whether Howell’s conduct was actually contemptuous.” Id. at 58.

Lumumba will therefore be free, within limits designed to avoid cumulative and repetitious testimony, to introduce evidence supplementing the record’s portrayal of Lumumba’s actions and the context in which they arose.

The hearing pursuant to this opinion will commence on December 17, 1984 unless counsel wish to be heard with respect to fixing another date, in which case a pretrial conference will be heard on December 5, 1984 at 4:30 p.m.

IT IS SO ORDERED.


author: CARL B. RUBIN, Chief Judge.

text:
    UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, MILLWRIGHTS AND MACHINERY ERECTORS, LOCAL UNION 1519, Plaintiff, v. BACKMAN SHEET METAL WORKS, INC., Sheet Metal Workers International Association, Local Union 98, and Sheet Metal Workers International Association, Defendants, v. TRI-STATE BUILDING AND CONSTRUCTION TRADES COUNCIL, International Association of Bridge, Structural and Ornamental Ironworkers, Local 769, AFL-CIO, and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local 105, AFL-CIO, Additional Defendants.
    No. C-1-82-755.
    United States District Court, S.D. Ohio, W.D.
    Nov. 26, 1984.

      Frederick G. Cloppert, Jr., Columbus, Ohio, for plaintiff.
    Leonard Sigall, Reynoldsburg, Ohio, John Pinney, Cincinnati, Ohio, David Hols, St. Paul, Minn., Jonathan D. Schiller, Washington, D.C., Gary Eby, Cincinnati, Ohio, for defendants.
   FINDINGS OP FACT, OPINION, AND CONCLUSIONS OF LAW

CARL B. RUBIN, Chief Judge.

This matter is before the Court following the presentation of evidence and testimony at a trial to the Court. The alignment of parties in the caption of this case is such that some explanation is required. This matter was originally filed by the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Millwrights and Machinery Erectors, Local Union 1519 (“Millwrights”) against Backman Sheet Metal Works, Inc. (“Backman”), and Sheet Metal Workers International Association, Local Union No. 98, and Sheet Metal Workers International Association (“Sheet Metal Workers”) for declaratory judgment. Subsequently, the Tri-State Building and Construction Trades Council (“Tri-State”), the International Association of Bridge Structural and Ornamental Ironworkers, Local 769, AFL-CIO (“Ironworkers”), and the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local 105, AFL-CIO (“Boilermakers”) were added as parties defendant. Backman asserted a counterclaim against the Millwrights under section 303 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 187 (1982) and cross claims against the Boilermakers, Ironworkers, and Tri-State for breach of contract under section 301 of the Act, 29 U.S.C. § 185 (1982). The matter was presented to the Court with Backman as de facto plaintiff and the other parties as defendants. This litigation arose out of a sub-subcontract held by Backman for the fabrication and erection of some equipment at an ethanol plant being constructed at Southpoint, Ohio. The case presents essentially a jurisdictional dispute among the unions for which Backman seeks damages. In accordance with Rule 52 of the Federal Rules of Civil Procedure, the Court does submit herewith its Findings of Fact, Opinion, and Conclusions of Law.

I. Findings of Fact

(1) At sometime prior to 1981, the Pritchard Corporation (“Pritchard”) was awarded a contract by Ashland Oil Co. to construct an ethanol plant at Southpoint, Ohio. A subcontract was awarded by Pritchard to the Continental Screw Conveyor Corporation (“Continental”) to design, construct and install a grain conveyor system. A second subcontract was entered into between Continental and Backman wherein Backman was required to fabricate and erect dust collectors and spouts. No dispute has arisen among the parties regarding the fabrication portion of the agreement.

(2) A collective bargaining agreement was executed on November 15, 1981, between Pritchard (general contractor), Tri-State, and their affiliated unions, including the Boilermakers, Sheet Metal Workers, Iron-workers, and Millwrights. This collective bargaining agreement, termed the Project Agreement, covered all work to be performed at the Ashland ethanol plant. (See Backman Exhibit 3). Continental, as subcontractor to Pritchard, was signatory to the Project Agreement. It is undisputed that all of the parties before the Court were bound by the terms of the Project Agreement.

(3) The Project Agreement provides in pertinent part:

9.1 There shall be no strikes, work stoppages, or slowdowns of any kind for any reason against the Employers____
9.3 The Unions agree individually that if any Union, individual, or group of employees covered by this Agreement engage in picketing or any work stoppage on the job, the other Unions and employees shall consider such picketing or work stoppage as an unauthorized strike and will refuse to honor any picket line established. Failure of any Union or groups of employees to cross such unauthorized picket lines on this project shall be a violation of this Agreement____
10.1 The rules and regulations of the Impartial Jurisdictional Disputes Board or its successor board shall ap- ■ piy-
10.2 All Contractors shall hold pre-job and mark-up conferences with the Unions to clear up work assignments in which there is thought to be a difference in opinion____ The Contractor (or Subcontractor) who has the responsibility for the performance and installation shall make a specific assignment of the work in accordance with agreements or decisions of record.
In the absence of such agreements or decisions of record, it is the employer’s responsibility to make the assignment in accordance with Procedural Rules and Regulations of the Impartial Jurisdictional Disputes Board.
10.3 In the event a jurisdictional dispute arises after an assignment has been made, the business agents will first seek resolution of the dispute on the job.
10.4 In the event no resolution is possible, the respective International Union and/or Impartial Disputes Board procedures shall follow.
11.1 There shall be no lockout, or strike, or cessation, or slowdown of work due to grievances arising during the life of this Agreement. It is specifically agreed that in the event that any disputes arise out of the interpretation or application of this Agreement, exclusive of questions or jurisdiction on work, the same shall be settled by means of the procedure set out in this Article____

(Id.).

(4) The Project Agreement was incorporated by reference into the subcontract between Backman and Continental. (See Backman Exhibit 2 at p. 2; Attachment Exhibit E). A draft of the contract between Continental and Backman was received by Backman in September, 1981, but was not signed by Backman at that time because it was not in final form. Back-man’s intention to perform the ethanol plant job was expressed in a letter dated September 11, 1981. (Backman Exhibit 4).

(5) Some months before the May 17, 1982 jurisdictional dispute, Backman had agreed to sign the Project Agreement but had not formally signed it because Continental had not sent it to Backman at that time. (Back-man Exhibit 23). When Backman entered the job-site for the first time on April 28, 1982, the contract with Continental still had not been signed because several terms were still being negotiated, including total price, types of stainless steel, drain systems, and receiving pits.

(6) Backman made an assignment of work to the Sheet Metal Workers in its first pre-job conference held on May 7, 1982. The assignment of work to specific crafts is required by the procedural rules and regulations of the Impartial Jurisdictional Disputes Board, which state that “[t]he contractor who has the responsibility for the performance and installation shall make a specific assignment of the work which is included in his contract____” (Backman Exhibit 45 at p. 4). The assignment made by Backman met with vigorous opposition. The Boilermakers claimed 50% of the dust collector system, Ironworkers claimed all structural steel and unloading mechanical equipment, and Millwrights claimed interconnecting spouting, fans, and chutes. Mr. Crabtree, business agent of the Millwrights, stated at the meeting that Backman had violated Article 10.1 of the Project Agreement and recommended that Pritchard notify Tri-State that Backman should not be permitted on the job-site until the dispute was resolved.

(7) On May 10, 1982, Backman started construction at the ethanol plant. Pritchard subsequently asked Backman to stop working because of the disputed work with the Ironworkers, Boilermakers, and Millwrights. Backman left the site on May 11 after the trailer was unloaded and was not permitted on the site through May 14. Backman returned to work at the job-site May 17.

(8) A second pre-job conference was held on May 17 at Pritchard’s request to resolve the disputed work assignments. At the meeting, Backman stood by its original assignment, as it was required to do, (see Backman Exhibit 45) and the Boilermakers, Ironworkers and Millwrights reasserted their original objections. Harsh words were exchanged at the meeting and a threat was made by Ellis Harmon, the Iron-workers’ business agent, that “Sheet Metal Workers wouldn’t touch any structural steel or there would be no Ironworkers on the job the next morning.”

(9) It was alleged that the Boilermakers, Millwrights, and Ironworkers walked off the job on May 18 due to the jurisdictional dispute, resulting in a work stoppage. The work stoppage was unauthorized but not all participants were clearly identified. Like most such occurrences, the evidence was confusing and conflicting. A system of trade identification was used on the job with different colored hard hats identifying ■ different crafts. While some doubt was cast upon the reliability of the hard hat identification, the Court notes that it was only the defendant unions who were directly affected by the job assignments. It is something less than logical to assert that members of unrelated crafts, having no interest whatsoever in the outcome of the jurisdictional dispute, would walk off of a job and lose income thereby. Ferris, a Backman employee, testified that he did not actually see either the Boilermakers or Millwrights leave the job-site, since there was a quarter-mile’s distance from the site to the gate. However, Backman’s Exhibit 11 confirms the fact that 43 Ironworkers and four Millwrights left the job-site at 11:00 a.m. on May 18, 1982.

(10) On the morning of May 19, 1982, there were thirty to forty men standing in the parking lot. Six Boilermakers were absent and five reported to work at 9:30 a.m.; one Millwright was absent and three were late; 23 Ironworkers were absent and 24 were late to work. (Backman Exhibit 12). These actions resulted in a work stoppage from the customary starting time of 8:00 a.m. until about 9:30 a.m.

(11) The Sheet Metal Workers (Backman Exhibit 7, 13-11) and Boilermakers (Boilermaker Exhibits L, M) contacted their respective international union representatives regarding the jurisdictional dispute in May and June, 1982. The Millwrights contacted its representative in late July, 1982, and the Ironworkers never requested assistance from its international representative. The dispute over the work assigned to the Sheet Metal Workers was never resolved by the international representatives of the unions.

(12) Backman was escorted off and ejected from the job-site on May 19, 1982, by Pritchard. The Court finds that Backman was removed because of the work stoppage by the unions.

(13) A third pre-job conference was held at Pritchard’s request on June 15, 1982. An official pre-job conference was required to be conducted after Backman signed the Project Agreement. The same unions participated and Backman reiterated the work assignments. Both Harmon, of the Iron-workers, and Mauppin, of the Boilermakers, stated at the meeting that the work would not proceed as assigned by Back-man.

(14) Backman returned to work on June 16, 1982. Another work stoppage occurred about 8:00 a.m. when thirty or forty workmen congregated around the area where Backman was working, with some people sitting on Backman’s equipment and blocking the work. Harmon, of the Ironworkers, remarked to Ferris, of Backman, that what Backman was doing was disputed work and Backman should not be working on the project. Harmon stated “We’ll see if you work or not” and “If you start today, there won’t be enough ambulances to take you to the hospital.” Ferris did not see Childers, the Boilermaker steward, or other people he knew to be Boilermakers in that group but he did see brown hard hats believed to be worn by the Boilermakers. Other testimony confirmed that although Boilermakers were working in the vicinity of where Backman was unloading, there were no Boilermakers in the group conducting the work stoppage. Likewise, no witness identified the Millwrights as appearing in the group. Ironworkers, however, were seen in the group and identified as leaving the area.

(15) Backman’s contract with Continental was subsequently terminated, without explanation, as to only the installation section of the job. (Backman Exhibits 37, 38).

(16) A procedure had been established to dispose of such disputes through the use of the Impartial Jurisdictional Disputes Board. The procedural rules and regulations of that Board, which were binding on the parties, impose certain requirements on both the contractor and the union:

The contractor who has the responsibility for the performance and installation shall make a specific assignment of the work which is included in his contract____ It is a violation of the plan for the contractor to hold up disputed work or shut down a project on account of a jurisdictional dispute.
In the event that there is any stoppage of work, or threat of stoppage or cessation of operations, arising out of a jurisdictional dispute following an assignment of work, the contractor shall notify immediately the Chairman, Impartial Disputes Board____ The agreement provides (Article VII, Section 1) that “during the existence of this agreement there shall be no strikes or work stoppages arising out of any jurisdictional dispute.”
When a contractor has made a specific work assignment, all unions shall remain at work and process any complaint over a jurisdictional dispute in accordance with the procedures herein established by the Board. Any union which protests that a contractor has failed to assign work in accordance with the procedures specified above, shall remain at work and process the complaint through its international office....

(Backman Exhibit 45 at 4, 7, 8) (emphasis added).

II. Opinion

The Court has jurisdiction over the suit for damages brought by Backman against the Millwrights under 28 U.S.C. § 1331 (1982), 29 U.S.C. § 185 and 29 U.S.C. § 187. Harnischfeger Corp. v. Sheet Metal Workers International Association, 436 F.2d 351, 353 (6th Cir.1970); Vulcan Materials Co. v. United Steelworkers, 430 F.2d 446, 458 (5th Cir.1970), cert. denied, 401 U.S. 963, 91 S.Ct. 974, 28 L.Ed.2d 247 (1971). Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, permits suit in federal court for breach of a contract between an employer and labor.organization representing employees in an “industry affecting commerce.” Pickens-Bond Construction Co. v. United Brotherhood of Carpenters, 586 F.2d 1234, 1242 (8th Cir.1978). At the outset, it is noted that the claims for violations of 29 U.S.C. §§ 158, 185, 187 are governed by federal law. Local 20, Teamsters, Chauffeurs & Helpers Union v. Morton, 377 U.S. 252, 257, 84 S.Ct. 1253, 1257, 12 L.Ed.2d 280 (1964); Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Backman seeks damages against the Boilermakers, Ironworkers, Millwrights, and Tri-State for breach of contract in failing to follow Article XI of the Project Agreement dealing with jurisdictional disputes, in violation of 29 U.S.C. § 185(a).

Section 301 of the LMRA confers jurisdiction on the Court over suits by or against labor organizations to enforce the terms of a collective bargaining agreement. Where, “[hjowever, ... the collective bargaining agreement provides for mandatory arbitration of some or all of the issues in the dispute, exhaustion of contractual remedies is normally required.” Hardline Electric, Inc. v. International Brotherhood of Electrical Workers, Local 1547, 680 F.2d 622, 624-25 (9th Cir.1982), cert. denied, 459 U.S. 1170, 103 S.Ct. 814, 74 L.Ed.2d 1013 (1983). Whether the parties have agreed to arbitrate a particular dispute is a matter of contract construction for the Court. See John Wiley & Sons v. Livingston, 376 U.S. 543, 547, 84 S.Ct. 909, 913, 11 L.Ed.2d 898 (1964); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 1320, 8 L.Ed.2d 462 (1962); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960); Salary Policy Employee Panel v. Tennessee Valley Authority, 731 F.2d 325, 332 (6th Cir. 1984). “A national policy favoring arbitration does not authorize arbitration unless the contract so provides.” Retail Clerks International Association v. Lion Dry Goods, Inc., 341 F.2d 715, 719 (6th Cir. 1965), cert. denied, 382 U.S. 839, 86 S.Ct. 87, 15 L.Ed.2d 81 (1965).

Article XI, § 11.1 of the Project Agreement provides in pertinent part:

“It is specifically agreed that in the event that any dispute arises out of the interpretation or application of this Agreement, exclusive of questions or [sic] jurisdiction on work, the same shall be settled by means of the procedure set out in this Article [i.e., contractual arbitration provisions].” (Emphasis added).

Additionally, the Project Agreement delineates a mechanism for disposing of questions regarding work jurisdiction in Article X, separate from Article XI’s grievance and arbitration provisions.

The general guidelines and presumptions announced in the Steelworkers trilogy for ruling on arbitration are not germane to this analysis because, unlike the arbitration provisions addressed in the Steelworkers cases, the agreement before the Court contains an express provision excluding a particular subject from the arbitration procedures in Article XI. Warrior & Gulf, 363 U.S. at 585, 80 S.Ct. at 1354. In contrast, the disposition of the issue sub judice is based on the traditional principles of contract interpretation because we do not find the parties’ intent in this matter inconclusive. The collective bargaining agreement fairly read as a whole, and attributing to the words their ordinary and reasonable meaning, leads the Court to conclude that the claim that a signatory party to the contract failed to follow the Article X provisions for jurisdictional questions falls within the exception to the arbitration clause of the agreement. See Frederick Meiswinkel, Inc. v. Laborer’s Union Local 261, 744 F.2d 1374, 1376, 1377 (9th Cir.1984); Morgan Services, Inc. v. Local 323, Chicago & Central States Joint Board, 724 F.2d 1217, 1223 (6th Cir.1984); Bechtel Corp. v. Local 215, Laborers’ International Union, 544 F.2d 1207 (3d Cir.1976). Moreover, the defendants are unable to point to a specific provision of the contract to justify their claim that there has been no exhaustion of contractual remedies. See e.g., International Union of Electrical, Radio & Machine Workers v. General Electric Co., 407 F.2d 253, 260-61 (2nd Cir.1968), cert. denied, 395 U.S. 904, 89 S.Ct. 1742, 23 L.Ed.2d 217 (1969); International Union, United Automobile, Aerospace & Agricultural Workers v. Acme Precision Products, 521 F.Supp. 1358, 1361 (E.D.Mich.1981). It is clear from the language and provisions of the Project Agreement that the parties “specifically agreed” to exclude questions of work jurisdiction from the arbitration procedures of Article XI. (Backman Exhibit 3 at 21). See, Frederick Meiswinkel, Inc., at 1376-1377. Accordingly, the Court has jurisdiction over the § 301 claim.

A valid contract existed between Continental and Backman at the latest by May 7, 1982, when Backman began performance under the contract. The Project Agreement was included by reference in the Continental contract. Article I, § 1.3 provides that “[e]ach subcontractor who performs work at the jobsite shall become signatory and a party to this agreement by signing the Letter of Assent attached hereto ----” (Backman Exhibit 3 at 3).

“In choosing among reasonable meanings of a promise or agreement or a term thereof, that meaning is generally preferred which operates against the party who supplies the words or from whom a writing otherwise proceeds.” Restatement (Second) of Contracts § 206 (1979). See e.g., Semmes Motors v. Ford Motor Co., 429 F.2d 1197, 1206-07 (2nd Cir.1970). “Unless otherwise indicated by the language or the circumstances, an offer invites acceptance in any manner and by any medium reasonable in the circumstances.” Restatement of Contracts, at § 30(2). It is noteworthy that the clause does not state that acceptance of the offer can be made only by signing the Letter of Assent. The language is more a suggestion rather than a limitation as to the manner of acceptance. Id. at comment b.

“In case of doubt an offer is interpreted as inviting the offeree to accept either by promising to perform what the offer requests or by'rendering the performance, as the offeree chooses.” Id. at § 32. In this case, Backman choose to accept the offer by orally promising to perform its contract with Continental or by beginning the performance bargained for on May 7, 1982. (See Backman Exhibit 23). Therefore, the Project Agreement was binding on the parties prior to the first pre-job conference held on May 7, 1982.

Turning to the issue of liability, Backman has the burden of proof in this case by a preponderance of the evidence. Blue Diamond Coal Co. v. United Mine Workers, 436 F.2d 551, 561 (6th Cir.1970), cert. denied, 402 U.S. 930, 91 S.Ct. 1525, 28 L.Ed.2d 863 (1971), citing United, Mine Workers v. Osborne Mining Co., 279 F.2d 716, 727 (6th Cir.1960). Before a union can be found liable for damages under § 301, the union’s responsibility for the illegal actions must be established according to a recognized theory of liability. Consolidation Coal Co. v. Local 1702, United Mine Workers, 709 F.2d 882, 884 (4th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 487, 78 L.Ed.2d 683 (1983). The Courts recognize two theories of liability, the “mass action” theory and the “common law agency” theory. Id. There is no authority in the Sixth Circuit, however, for the proposition that a union may be held responsible for the “mass action” of its members. Southern Ohio Coal Co. v. United Mine Workers, 551 F.2d 695, 701 (6th Cir.1977), cert. denied, 434 U.S. 876, 98 S.Ct. 227, 54 L.Ed.2d 155 (1977). On the contrary, the rule we must apply is that a union may only be held responsible for the actions of its officers and agents if it authorized, participated in, or ratified the conduct. Davis Co. v. United Furniture Workers, 674 F.2d 557, 564-65 (6th Cir.1982), cert. denied, 459 U.S. 968, 103 S.Ct. 296, 74 L.Ed.2d 279 (1982); see Complete Auto Transit, Inc. v. Reis, 451 U.S. 401, 415-16, 101 S.Ct. 1836, 1844-45, 68 L.Ed.2d 248 (1981).

The Court finds that plaintiff has failed to prove by a preponderance of the evidence that the Boilermakers breached the terms of the Project Agreement. Plaintiff has proven by a preponderance of the evidence that the Millwrights and Iron-workers breached the terms of the Project Agreement in failing to follow the Impartial Disputes Board procedures as required. (See Backman Exhibit 45 at 8). Under the doctrine of respondeat superior, the Iron-workers and Millwrights are liable for the failure of their employees to “process the complaint through [their] international office.” See General Building Contractors Association, Inc. v. Pennsylvania, 458 U.S. 375, 392, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982); Shimman v. Frank, 625 F.2d 80, 94 (6th Cir.1980); Brown v. International Union, United Automobile Workers, 512 F.Supp. 1337 (W.D.Mich.1981), aff'd, 689 F.2d 69 (6th Cir.1982). The Court further finds plaintiff has proved by a preponderance of the evidence that the Ironworkers “authorized or ratified” the acts of its officers and agents in failing to remain at work and that they did not effectively renounce their officers’ and agents’ actions in violating the terms of the Project Agreement. See Southern Ohio Coal Co., 551 F.2d at 701; United States Steel Corp. v. United Mine Workers, 519 F.2d 1249, 1256 (5th Cir.1976).

At the conclusion of trial, the Court granted defendant Tri-State’s Motion for Directed Verdict. The standard to be applied in this Circuit in determining the propriety of granting or denying a directed verdict motion is whether the evidence is such that, without weighing the credibility of the witnesses or considering the weight of the evidence, there is substantial evidence from which the trier of fact could find in favor of the party against whom the motion is made. Coffy v. Multi-County Narcotics Bureau, 600 F.2d 570, 579 (6th Cir.1979). After reviewing the evidence in the light most favorable to Backman, it was clear that reasonable men could come to but one conclusion from the evidence, that the evidence presented by Backman was insufficient to establish a violation of § 301 by Tri-State. Id.

Once liability has been established, the plaintiff is entitled to recover all damages, including losses in profit and overhead, directly and proximately resulting from the violation of § 301. Riverton Coal Co. v. United Mine Workers, 453 F.2d 1035, 1042 (6th Cir.1972), cert. denied, 407 U.S. 915, 92 S.Ct. 2439, 32 L.Ed.2d 690 (1972). Plaintiff has the burden of proving what actual losses were suffered as a result of the breach. Plastics Div., Tenneco Chemicals, Inc. v. Teamsters, Local 01, 520 F.2d 945, 949 (3d Cir.1975). Once the fact of damage has been properly established, uncertainty as to its amount will not foreclose recovery. Blue Diamond Coal Co., 436 F.2d at 561. In such a case, the Court may approximate the damages on the basis of just and reasonable inferences from the evidence. Wagner Electric Corp. v. International Union of Electrical Workers, 496 F.2d 954, 957 (8th Cir.1974).

Backman’s overhead and profit are included as a single item in its bid. Back-man’s original bid of $605,766, which included $418,483 as costs, left an anticipated overhead and profit of $187,283. Backman actually received $300,374 in payment and incurred actual direct costs of $226,863 (this figure includes the expenses incurred as a result of the unions’ activities). The anticipated overhead and profit less actual overhead and profit leaves $94,372, which is the loss in profit and overhead Backman claims. In addition, Backman claims $100,-000 in overhead and profit on jobs it bid for Continental and lost because of its termination from the project. - Further, Backman claims $500,000 per year for three years for the losses it suffered resulting from its damaged business reputation.

There was no evidence presented to show that the expenses claimed by plaintiff were not incurred or were unnecessary. The Court finds that Backman has proved by a preponderance of the evidence that its reasonably certain loss of $94,372 in profits and overhead expenses on the contract was the proximate result of the unlawful actions of the unions. Backman has failed to prove that its loss on future Continental jobs and loss in sales attributable to its allegedly damaged reputation were proximately caused by the defendants, and the Court finds plaintiff’s claims on these points to be speculative. Finally, plaintiff was not required to mitigate its damages by settling the issue out of court with Pritchard.

Backman also contends that the Millwrights violated 29 U.S.C. § 187, which states that it is unlawful for a “labor organization to engage in any activity or conduct defined as an unfair labor practice in section 158(b)(4) ____” 29 U.S.C. § 187(a). Section 158(b) provides in part:

It is an unfair labor practice for a labor organization or its agents—
(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce ... to engage in, a strike or a refusal in the course of his employment to use ... or otherwise handle ... any ... materials ... or to perform any services; or
(ii) to threaten, coerce, or restrain any person engaged in commerce ..., where in either case an object thereof is—
(B) forcing or requiring any person to ... cease doing business with any other person____
(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular ... craft ... rather than to employees in another labor organization or in another ... craft____

The Millwrights are liable for the action of its organization or its agents in conducting an illegal secondary boycott if it authorized, participated in, or ratified the actions of its officers and agents. Complete Auto Transit, 451 U.S. 401, 417, 101 S.Ct. 1836, 1845, 68 L.Ed.2d 248 (1981); Davis Co., 674 F.2d 557, 564-65 (6th Cir.1982). Plaintiff has failed to prove by a preponderance of the evidence that the Millwrights authorized or ratified the actions of its members in conducting the work stoppage in May, 1982.

The general federal rule on prejudgment interest, applicable to this LMRA matter is that, in the absence of a statutory provision, the award of prejudgment interest is addressed to the discretion of the district court. Equal Employment Opportunity Commission v. Wooster Brush Co. Employees Relief Association, 727 F.2d 566, 579 (6th Cir.1984); Oil, Chemical and Atomic Workers International Union, Local No. v. American Cyanamid Co., 546 F.2d 1144, 1144 (5th Cir.1977). Backman is not entitled to prejudgment interest on its damage award because the Court finds that prejudgment interest on the sum is not necessary in order to fairly compensate the plaintiff.

Backman has also requested that attorneys’ fees be awarded in this case. It is well established under the “American Rule” that a prevailing party may not ordinarily recover attorneys’ fees in the absence of legislative or contractual authorization for the fee award. Shimman v. International Union of Operating Engineers, 744 F.2d 1226, 1229 (6th Cir.1984); see Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). The “bad faith” exception to the American Rule, which provides for an award “when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons” is the basis upon which Backman claims entitlement to attorneys’ fees. Id. at 258-59, 95 S.Ct. at 1622.

The Sixth Circuit has recently addressed the issue of awarding attorneys’ fees in a labor case based on the bad faith exception, noting that there are three categories of bad faith:

(1) bad faith occurring during the course of the litigation;
(2) bad faith in bringing an action; and
(3) bad faith in the acts giving rise to the substantive claim.

Shimman, 744 F.2d at 1230. Backman has not provided any evidence indicating that the parties exhibited bad faith during the course of the litigation or in bringing the lawsuit. See id. at 1234. With regard to the last category, the Court in Shimman held “that the bad faith exception to the American Rule does not allow an award of attorneys’ fees based only on bad faith in the conduct giving rise to the underlying claim.” Id. at 1233. Therefore, Backman’s claim for prejudgment interest.is denied.

III. Conclusions of Law

(A) This Court has jurisdiction over the case pursuant to 28 U.S.C. § 1331, 29 U.S.C. §§ 185, 187.

(B) Defendant Tri-State is entitled to a directed verdict in its favor.

(C) Plaintiff has failed to prove its case against the Boilermakers by a preponderance of the evidence.

(D) The Ironworkers and Millwrights are jointly and severally liable to Backman for $97,372 in damages, for violation of 29 U.S.C. § 185.

(E) Plaintiff has failed to prove that the Millwrights violated 29 U.S.C. § 187 by a preponderance of the evidence.

(F) Awards of prejudgment interest and attorneys’ fees are not justified by the circumstances of the case. Backman is entitled to postjudgment interest on the judgment in accordance with 28 U.S.C. § 1961.

IT IS SO ORDERED.

      . United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960).

      . Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1982), applies to any written or unwritten agreement which purports to resolve controversies between employers and unions. Doubarn Sheet Metal, Inc. v. Sheet Metal Workers, 547 F.2d 221, 224 (3d Cir.1977), citing, Plumbers Local 115 v. Townsend & Bottum, 383 F.Supp. 1339, 1343 (W.D.Pa.1974), aff’d mem., 521 F.2d 1399 (3d Cir.1975).

      . The relevant section of the exhibit reads: "When a contractor has made a specific work assignment, all unions shall remain at work and process any complaint over a jurisdictional dispute in accordance with the procedures herein established____ Any union which protests that a contractor has failed to assign work in accordance with the procedures ... shall remain at work and process the complaint through its international office.”