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LOCAL 227, INTERNATIONAL HOD CARRIERS v. SULLIVAN

August 29, 1963

LOCAL 227, INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS UNION OF AMERICA, AFL-CIO, PLAINTIFF,
v.
J. CECIL SULLIVAN AND PAT SULLIVAN, A CO-PARTNERSHIP DOING BUSINESS AS MIDLAND CONSTRUCTION COMPANY, DEFENDANTS.



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

Plaintiff, Local 227, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO (hereinafter called "Union"), filed a complaint under Section 301(a) of the Labor Management Relations Act, as Amended (Title 29 U.S.C. § 185), wherein it is alleged that J. Cecil Sullivan and Pat Sullivan, a co-partnership doing business as Midland Construction Company (hereinafter referred to as "Midland"), during the time in question were members of Egyptian Contractors Association, Inc. (hereinafter referred to as "Association"), and were bound by the terms of a collective bargaining agreement between the Association and plaintiff; that the collective bargaining agreement contains an arbitration clause which provides a method of resolving differences between parties; that one Joe Johnson, a laborer and employee of Midland and a member of Union, was discharged and that the discharge was submitted to arbitration; that by mutual agreement of Union and Midland the difference resulting from the discharge of Joe Johnson was submitted to arbitration on December 18, 1961 before arbitrator Fern R. Rauch; that the arbitrator issued and served upon plaintiff and defendants his decision and an award ordering reinstatement of Joe Johnson to the employ of Midland together with payment for actual time lost less interim earnings; that defendants have wilfully refused to abide by and comply with the decision and award of the arbitrator and have wilfully refused to reinstate Joe Johnson to their employ and have wilfully refused to make whole said Joe Johnson for wages lost as a consequence of the discharge; wherefore, plaintiff prays that this Court enter an order enforcing the decision and award of the arbitrator and compelling defendants to effect compliance therewith.

Midland filed answer to the complaint, admitting in part and denying in part the allegations contained therein.

As a third defense and/or counterclaim, defendants assert that if the Court finds it has jurisdiction of the cause and that there was a difference between plaintiff and defendants resulting from defendants' discharge of Joe Johnson and that by mutual agreement of the parties the Department of Labor of the State of Illinois was designated by the parties to arbitrate the difference, then and in such event the purported award by the Department of Labor was thereafter amended by the Department of Labor and that the defendants have complied with the amended award; that therefore there is an accord and satisfaction of the purported award of the Director of Labor of the State of Illinois.

Defendants have also filed their additional (fourth) defense and additional counterclaim, wherein it is asserted that if the Court finds it has jurisdiction of the cause; that there was a labor contract which provided for arbitration between the parties; that there was a difference between the parties to the cause which was to be arbitrated in accordance with the labor contract, if any, entered into between the parties and growing out of the discharge of Joe Johnson; and that an arbitration was held purporting to arbitrate said differences between the parties; then and in such event counter-plaintiffs assert that the purported arbitration award was not constituted in accordance with a purported agreement of the parties in that the purported award was entered by one man only and later sought to be corrected by one man and that the award itself was unauthorized by the purported agreement; that the award exceeded the jurisdiction conferred upon the purported arbitration board; that the purported arbitrator or arbitrators exceeded his or their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made; that there was evident partiality on the part of the purported arbitrator or arbitrators in making the findings of fact and award; that the purported arbitration award was procured by undue means; and that the purported arbitration award was not the result of a hearing, taking of evidence and deliberation of an arbitration board which was intended by the parties. Counterplaintiffs ask that the purported award or awards, or either of them, be vacated and set aside and that this Court make such further order in the premises that may be deemed just and appropriate.

The defendants attempted to show that they were not members of the Association at the time of the occurrence out of which this incident arose, for the reason that they had paid dues for only one year and that the by-laws of the Association provided that dues were payable in advance and that upon failure to comply with the dues-paying provision of the Association agreement, a member — in this instance, Midland — would be dropped from the rolls and would no longer be a member of the Association. The evidence failed to establish that the defendants had in fact been dropped from the rolls of the Association. The defendants by their conduct continued to operate under the collective bargaining agreement and in fact after the incident out of which this cause of action arises had occurred, defendants and plaintiff pursued to a point arbitration procedures as outlined in the collective bargaining agreement.

The arbitration clause of the collective bargaining agreement (Plaintiff's Exhibit No. 1) provides as follows:

"ARTICLE NO 11: GRIEVANCE PROCEDURE

    "There shall be no stoppage of work on account
  of any differences which might occur between the
  employer and the union. Any disputes should be
  adjusted quickly between a representative of the
  employer and the business agent. If the dispute
  cannot be settled then satisfactorily, it shall
  be immediately referred to a board consisting of
  four members two appointed by the employer and
  two appointed by the union and they

  shall have the authority to choose a fifth
  member, if, and when, they deem it necessary.
    "It is agreed that majority decision rendered
  by such board shall be final and binding on both
  parties."

The evidence developed that adjustment between the parties had been attempted without success, whereupon the plaintiff appointed two members as an arbitration committee consisting of one Jesse Heern and Herbert A. Underwood. Pat Sullivan and Willard Franks were appointed for defendants.

Jesse Heern testified that he was a member of the arbitration board, having been appointed by plaintiff; that the four members of the board originally appointed had a meeting which lasted approximately ten minutes; that he had never talked with any other member of the board either before or after the ten-minute arbitration meeting; that he had not participated in the decision rendered by Mr. Rauch; that he had not been consulted as to who the fifth member of the board should be; but that he would have listened to a reasonable explanation and would have been fair in reaching a determination of the dispute.

Herbert A. Underwood testified that he was appointed as a member of the original four members of the arbitration committee; that no agreement had been reached between the parties; that the arbitration committee had met only one time; that there had never been any other hearing which he had attended which included a fifth man; that he had heard the decision read but that he had not participated in reaching the decision; and that he had not assisted in appointing the fifth member of the arbitration board.

Willard G. Franks testified that he had been appointed to the arbitration board to represent the interest of the defendants; that the arbitrators met, were unable to agree and agreed to appoint a fifth member and the decision of the majority would be binding on the parties; that the labor relations manager at ...


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