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Twin Excavating Co. v. Local Union 731

September 17, 1964

TWIN EXCAVATING COMPANY, PLAINTIFF-APPELLEE
v.
LOCAL UNION 731, EXCAVATING, GRADING, ASPHALT, PRIVATE SCAVENGERS, ET AL., DEFENDANTS-APPELLANTS.



Author: Duffy

Before HASTINGS, Chief Judge, DUFFY and SCHNACKENBERG, Circuit Judges.

DUFFY, C. J.: This action was commenced against Local Union No. 731 and officers of the Union to recover damages alleged to have been occasioned by defendants-appellants' attempt to induce a subcontractor and the employees of the subcontractor to cease performing services for and doing business with the plaintiff, and to force Paschen Contractors, Inc., the prime contractor, to cease doing business with plaintiff.

The matter presently before this Court is an interlocutory appeal by defendants-appellant from the denial of their motion to stay the proceedings in this suit until the dispute is resolved by a Joint Committee which was authorized by a certain collective bargaining agreement entered into between plaintiff and Local Union No. 731.

In an agreement dated May 26, 1958, between Local Union No. 731 and plaintiff, there appeared the following provision:

"All parties to this Agreement agree that they will elect a Committee to act on grievances, disputes or arbitration . . . This Committee shall consist of three members of each side and they shall organize a Joint Board by electing a President and Secretary. This Board shall have full power to enforce this Agreement between both parties as to all conditions and articles thereof. . . . A two-thirds vote of the Board shall rule and the findings shall be final. . . . The Joint Board by two-thirds vote shall have the right to deduce any problems concerning either party to this Agreement that is not covered by this Agreement."

The basic issue in this suit is whether the Labor Management Relations Act, 1947, 29 U.S.C. 141 et seq ., sometimes hereinafter referred to as the "Act", contemplated an arbitration proceeding as a substitute for a court hearing in a suit for damages under § 303 of the Act, where plaintiff and defendant are parties to a collective bargaining contract.

We think it is now well established that when one of the parties to a collective bargaining contract brings a suit under § 301 of the Act for a violation of the contract, and which contract contains a provision for arbitration, the grievance must be submitted to arbitration.*fn1

However, the instant suit is not an action brought under § 301 of the Act. It is a suit for damages under § 303 of the Act, and does not involve a suit for violation of a collective bargaining agreement.

At the time the bill creating the Labor Management Relations Act, 1947, was before Congress, that body was greatly concerned with what it regarded as serious evils growing out of secondary boycotts and jurisdictional strikes. In § 8(b)(4) of the Act, Congress defined such conduct by labor organizations as unfair labor practices. Section 303 defines such conduct as being unlawful, and grants to a party injured by such conduct of a labor organization, the right to sue. International Longshoremen's & Warehousemen's Union et al. v. Juneau Spruce Corporation, 342 U.S. 237.

The intent of Congress in enacting § 303 is well shown by a statement of Senator Taft who was the author of the bill. The Senator said:

". . . I think the threat of a suit for damages is a tremendous deterrent to the institution of secondary boycotts and jurisdictional strikes. . . ." (93 Cong. Rec. 5060; II Leg. Hist. of Labor Management Relations Act of 1947, page 1371.)

It is doubtful that the contract here under consideration contains a valid arbitration provision. We recognize it is not absolutely necessary that the word "arbitration" should be used. Local Union No. 89 v. Riss and Co., Inc ., 372 U.S. 517, 519. Nevertheless, the provisions in the contract for a "Joint Committee" and "Joint Board" are not readily understandable.

The Committee was to consist of "three members of each side." The Committee was to organize a "Joint Board" by electing a President and a Secretary. "This Board shall have full power to enforce this Agreement between both parties as to all conditions and articles thereof." "A two-thirds vote of the Board shall rule and the findings shall be final." Then followed:

"The Joint Board by two-thirds vote shall have the right to deduce any problems concerning either party to this Agreement that ...


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