Before HASTINGS, Chief Judge, KNOCH and SWYGERT, Circuit Judges.
KNOCH, C. J.: Plaintiff, E.T. Simonds Construction Company, brought suit against the defendants, Local 1330 of International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, and Southern Illinois District Council of International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, in the United States District Court under Section 301(a) of the Labor Management Relations Act, as amended (29 U.S.C. § 141, et seq ., § 185), to recover for breach of a labor contract by engaging in a work stoppage. Article 13 of that contract which bars work stoppages "on account of any differences that might occur" between the parties, also provides:
If matters cannot be adjusted quickly, between the representatives of the Individual Contractor and the Local Business Agent, the matter shall be immediately referred to a Board consisting of six (6) members, three to be appointed by the Contractor, and three to be appointed by the Union, and these six members shall have the authority to choose a seventh member, if and when they deem it necessary.
On motion of the defendants, the District Court entered an order staying this action pending arbitration.
The District Judge, who had previously denied a similar motion, held that the decision of the United States Supreme Court in the case of Drake Bakeries, Inc. v. Local 50, American Bakery and Confectionery Workers International, AFL-CIO, 370 U.S. 254 (1962), was binding on the Trial Court in this cause and required the grant of the stay as sought by defendants. He construed the Drake case as follows:
The court held that the contract between the employer and the union obligated the employer to arbitrate its claim for damages from forbidden strikes by the union, stating that under the contract by agreeing to arbitrate all claims without excluding the case where the union struck over an arbitrable matter, the parties negatived any intention to condition the duty to arbitrate upon the absence of strikes.
Plaintiff-appellant, however, contends that the right of arbitration (if one exists under the contract), being a mere contract right, can be waived, and has been waived by the defendants in this case.
The docket entries in this cause reveal the following significant chronology:
Plaintiff filed its complaint alleging an unauthorized work stoppage from October 16, 1960 to October 25, 1960.
Defendants filed separate answers and counterclaims in which the jurisdiction of the District Court was admitted.
Plaintiff moved to dismiss the counterclaims or, alternatively, to strike certain portions including the prayer for punitive damages.
Plaintiff filed its brief in support of its motion.
Defendants filed their brief in opposition.
Plaintiff filed its reply brief.
The Trial Court denied the motion to dismiss, sustained the motion to strike certain portions, but reserved till trial the ruling on the motion to strike the prayer for punitive damages.
Plaintiff replied to the counterclaims and sought leave to amend its complaint by adding a ...