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February 13, 1963


The opinion of the court was delivered by: Will, District Judge.

Plaintiff union represents all hourly paid employees at defendant's Chicago plant. At all times here relevant, there was in effect between plaintiff and defendant a collective bargaining agreement of which Article 23, entitled "Machinery for Adjustment of Grievances", provides in pertinent part as follows:

    "(a) Within five (5) days of the negotiations by
  the union to [sic] the Employer of the employee's
  grievance, the Union and the employee claiming
  grievance shall discuss the grievance with the
  foreman of the department involved; and if this fails
  to settle the grievance, then within the next five
  (5) days;
    "(b) An individual designated by the Union shall
  discuss the grievance with the appropriate executive
  of the company or his representative; and if this
  does not result in a settlement or compromise, then
  within the ten days after such latter conference the
  matter in controversy shall, on the written request
  of either party be submitted to a board of
  arbitration; and both parties hereto agree that if
  one party hereto requests an arbitration, the other
  will participate in and be bound by it. * * * A
  majority decision of the board of arbitration shall
  be final and binding upon all parties and all parties
  shall be obligated to abide and agree to abide by
  such decision in complete good faith. Any expenses of
  such arbitration herein, including arbitrators' fees,
  if any, shall be paid equally by the Employer and the

The present motion being one to dismiss the complaint, all well-pleaded factual allegations must be taken as true. Central Ice Cream Co. v. Golden Rod Ice Cream Co., 7 Cir., 1958, 257 F.2d 417, 418. On April 17, 1962, defendant, a corporation engaged in interstate commerce, decided to shut down all operations for the following April 20, Good Friday. On the 19th, plaintiff advised defendant by telegram that such a shutdown would violate the guaranteed work week provisions of the collective bargaining agreement, and that if defendant's plan was carried out plaintiff would insist on arbitration of this issue. Nevertheless, the plant was closed down on April 20. By a letter dated April 24, plaintiff through its attorneys notified defendant that it desired to submit the shutdown to arbitration and named its representative.

On April 27, defendant laid off five employees. By a letter dated May 10, plaintiff, through its attorneys, stated its desire also to submit the discharges to arbitration and named the same representative. Defendant has at all times refused to arbitrate either of these two grievances. In July, plaintiff filed this complaint seeking a court order compelling defendant to so arbitrate.

The Court's jurisdiction is founded upon section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185(a), which section reads as follows:

  "Suits for violation of contracts between an employer
  and a labor organization representing employees in an
  industry affecting commerce as defined in this
  chapter, or between any such labor organizations, may
  be brought in any district court of the United States
  having jurisdiction of the parties, without respect
  to the amount in controversy or without regard to the
  citizenship of the parties."

This statute authorizes federal courts to enforce promises to arbitrate grievance disputes contained in collective bargaining agreements. Textile Workers Union of America v. Lincoln Mills, 1957, 353 U.S. 448, 451, 77 S.Ct. 912, 1 L.Ed.2d 972. Federal substantive law applies to litigation based on section 301(a). Id. 353 U.S. at 456, 77 S.Ct. at 917.

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 ...

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