precedent to submission to arbitration as set out in Article 23.
Defendant submits uncontroverted affidavits of its foreman and of
its president (the latter's affidavit states that he is "the
appropriate executive" referred to in Article 23(b)) to the
effect that no union representative discussed this matter with
either of them during the Article 23 period or at any other time.
Plaintiff's only responses are that (1) procedural arbitrability
is an issue to be decided by the arbitrator and not by the Court,
and (2) defendant's failure to raise procedural objections to
arbitration at the time that plaintiff demanded it in effect
estops defendant from objecting on such grounds now.
Plaintiff neither disputes the applicability of Article 23 nor
argues that any other provision of the contract is relevant to
the instant litigation. Furthermore, plaintiff offers no reason
for its failure to exhaust the procedural conditions precedent to
arbitration prescribed in the contract. There is here no
allegation that negotiation would have been futile or that
plaintiff tried to utilize the three-step procedure of Article 23
but that defendant refused to participate.
The merits of the relevant grievances are not before the Court.
Without deciding, it will be assumed that the controversies are
arbitrable. This leaves the following questions pending: (1) who
is to determine if these grievances are arbitrable at this time,
(2) if the Court is to make this decision, are the instant
disputes so arbitrable, and (3) is defendant estopped from
raising questions of alleged procedural conditions precedent?
While there are conflicting authorities on the issue of who
decides when a labor controversy is ripe for arbitration, the
Court of Appeals for this circuit has held that the question is
properly determined by the Court. Brass & Copper Workers Federal
Labor Union No. 19322 AFLCIO v. American Brass Co., 7 Cir., 1959,
272 F.2d 849, 854, cert. denied, 1960, 363 U.S. 845, 80 S.Ct.
1609, 4 L.Ed.2d 1728, rehearing denied, 1960, 364 U.S. 856, 81
S.Ct. 34, 5 L.Ed.2d 81.
Where the parties contract to submit grievances to arbitration
only after certain conditions precedent are performed, this Court
may not require submission prior to the performance of such
conditions. Courts may compel parties to arbitrate only in those
instances in which they have contracted so to do. United
Steelworkers of America v. Warrior & Gulf Navig. Co., 1960,
363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409. Under the instant
contract, the grievance procedure and arbitration are clearly
consecutive, not alternative, methods of settlement.
Besides being a matter of contract, the grievance procedure is
obviously sensible. For example, Article 23 provides that the
expenses of arbitration are to be shared equally by employer and
union. Plaintiff, no more than defendant, should be compelled to
face the burden and expense of arbitration which would result if,
each time an employee presented a grievance, either party could
demand immediate arbitration without prior negotiation. More
important, the grievance procedure is designed to permit
negotiated settlements between the parties, with give and take
depending on each side's assessment of its own stake in the
dispute, and to obviate formal contestation of every controversy
which arises. The parties contracted to attempt to resolve
grievances amicably; the present dispute should be no exception.
The plaintiff's estoppel (what it terms the "unclean hands")
argument may be disposed of readily. The union knew or should
have known the terms of its own contract, and the provisions with
respect to grievance procedure are very clear. Therefore, it must
or should have realized that its demand for arbitration was
premature. In these circumstances, defendant was not obligated to
remind plaintiff to proceed as it knew it had promised
contractually to do. On the other hand, having correctly
contended that the conditions precedent to arbitration
must be observed, the defendant should not now be heard to raise
any objection to so proceeding even though the time periods
therefor specified in the contract have passed. Cf. International
Association of Machinists v. Hayes Corp., 5 Cir., 1961,
296 F.2d 238, 244.
Plaintiff not being entitled to submit this matter to
arbitration at this time, defendant's motion to dismiss must be
granted. The complaint is dismissed.
© 1992-2003 VersusLaw Inc.