United States District Court, Northern District of Illinois, E.D
March 18, 1965
THE PIANO AND MUSICAL INSTRUMENT WORKERS UNION, LOCAL NO. 2549 OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, ET AL., PLAINTIFFS,
W.W. KIMBALL COMPANY, DEFENDANT.
The opinion of the court was delivered by: Parsons, District Judge.
I have before me plaintiff's motion for the entry of an order
requiring defendant to select an arbitrator and submit a dispute
between the parties to arbitration.
On September 23, 1963, this District Court entered a judgment
order pursuant to its memorandum opinion (reported at 221 F. Supp. 461)
directing: "that defendant refer to arbitration its
differences with plaintiff concerning the interpretation of
application of their collective bargaining agreement dated
October 1, 1960, in accordance with the procedure outlined in
The Court of Appeals for the Seventh Circuit reversed the
decision of the District Court (reported at 333 F.2d 761). On
petition for writ of certiorari, the United States Supreme Court
in a Per Curiam opinion (reported at 379 U.S. 357
, 85 S.Ct. 441
13 L.Ed.2d 541) stated: "The petition for a writ of certiorari is
granted and the judgment is reversed. United Steelworkers of
America v. American Manufacturing Co., 363 U.S. 564
, 80 S.Ct.
1343, 4 L.Ed.2d 1403, and John Wiley & Sones, Inc. v. Livingston,
376 U.S. 543
, 84 S.Ct. 909, 11 L.Ed.2d 898."
In its judgment order, however, the Supreme Court remanded the
case to the District Court "for further proceedings in conformity
with (its) opinion * * *."
The parties presently differ over the nature of the order which
the District Court should now enter pursuant to the mandate of
the United States Supreme Court.
Plaintiff has submitted a proposed draft order which reads:
"that defendant select an arbitrator as required by
Article VIII of its collective bargaining agreement
with plaintiff dated October 1, 1960, within
ten days from the date of the entry of this order,
and that the arbitrators selected by both parties
meet within 30 days from the date of the entry of
this order, unless the parties hereto agree on
another date, in an attempt to resolve said parties'
differences with respect to the recall, relocation,
back pay, and other rights of defendant's laid off
Melrose Park employees; It is further ordered that
defendant comply with all of the requirements of
Article VIII, the arbitration clause in said
collective bargaining agreement."
It is plaintiff's position that the question of arbitrability,
i.e., whether the dispute is, in fact, arbitrable, is a matter
for the Court, not the arbitrator, to decide; that this Court has
determined that the dispute involved in this case is arbitrable,
and that the arbitrator's sole function is to arbitrate the
dispute, and not to determine at the outset whether the dispute
Defendant, on the other hand, contends that the parties first
must submit to arbitration the question of whether an arbitrable
issue is presented in this case, and only if that question is
answered in the affirmative by the arbitrator should the parties
proceed to arbitrate the merits of the dispute. And it is true
that in my memorandum opinion of September 23, 1963, I stated
(221 F. Supp. 461, at 465):
"[a]ccordingly, it is the opinion of the Court that
the `difference' between the plaintiffs and the
defendant concerning the hiring practices at the
French Lick Plant arose from the interpretation and
application of Articles III, VIII, and XI of the
collective bargaining agreement and the same is
arbitrable. It must be understood that this last
determination and the reasoning in support thereof is
mere dicta in the event this cause proceeds to
arbitration immediately hereafter, for it is the
opinion of the Court that the question of whether
this particular difference is arbitrable also is
subject to arbitration."
The Court of Appeals stated (333 F.2d 761, at 765):
"The district court determined that the question of
arbitrability was for the arbitrator to decide. In so
doing, it erred. Wiley v. Livingston, supra; Atkinson
v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct.
1318, 8 L.Ed.2d 462 (1962); Brass & Copper Workers
Federal Labor Union No. 19322, A.F.L.-C.I.O. v.
American Brass Co., 7 Cir., 272 F.2d 849, 853 (1959);
cert. denied, 363 U.S. 845, 80 S.Ct. 1609, 4 L.Ed.2d
Defendant contends that this particular holding of the Seventh
Circuit also was reversed by the Per Curiam decision of the
Supreme Court. Defendant is mistaken.
It is clear from plaintiff Union's petition for writ of
certiorari that the actual question presented to the Supreme
Court was the following:
"Must not a court direct arbitration of the question
of reemployment rights of employees under a
collective bargaining agreement which provides for
arbitration of any `difference' and which requires
laid off employees to be reemployed within two years
of layoff, where the company transferred the location
of its plant, laid off and did not recall its
employees, considered new job applicants at the
relocated plant — all during the term of the
contract — but did not resume actual production
with the new employees at its new location until nine
days following the contract's expiration."
And I must find that this was the only point decided by the
Supreme Court, for Rule 23(c) of the Supreme Court Rules
expressly provides: "[o]nly the questions set forth in the
petition or fairly comprised therein will be considered by the
The question presented to the Supreme Court did not expressly
include the question
of whether the court or the arbitrator is to determine the
threshold question of arbitrability. Even if, inferentially, this
question were presented, it would follow that the Supreme Court
assumed that had Wiley been decided prior to my opinion of
September 23, 1963, I would have expressed myself differently on
Indeed, the Wiley case, which was cited in the Per Curiam
opinion, and which was decided subsequent to the September, 1963,
decision of this Court, held squarely that the question of
whether or not a particular dispute is arbitrable is for the
courts, not the arbitrator, to determine. The Court stated in
Wiley, 376 U.S. at 546-547, 84 S.Ct. at 912-913, 11 L.Ed.2d 898:
"Both parties urge that this question (of whether the
particular dispute is arbitrable) is for the courts.
Past cases leave no doubt that this is correct.
`Under our decisions, whether or not the company was
bound to arbitrate, as well as what issues it must
arbitrate, is a matter to be determined by the Court
on the basis of the contract entered into by the
parties.' Atkinson v. Sinclair Refining Co.,
370 U.S. 238, 241 [82 S.Ct. 1318, 8 L.Ed.2d 462]. Accord,
e.g., United Steelworkers v. Warrior & Gulf
Navigation Co., 363 U.S. 574, 582 [80 S.Ct. 1347, 4
L.Ed.2d 1409]. * * * The reason requiring the courts
to determine the issue (of arbitrability) is
(that) * * * (t)he duty to arbitrate being of
contractual origin, a compulsory submission to
arbitration cannot precede judicial determination
that the collective bargaining agreement does in fact
create such a duty. Thus, just as an employer has no
obligation to arbitrate issues which it has not
agreed to arbitrate, so a fortiori, it cannot be
compelled to arbitrate if an arbitration clause does
not bind it at all."
In citing the Wiley case in its Per Curiam opinion, it is clear
that the Supreme Court did not intend to vitiate the holding of
the Court of Appeals in this case in its reliance upon Wiley on
the question of who determines arbitrability.
Indeed, the defendant, on Page 6 of its brief in opposition to
the petition for writ of certiorari, conceded the correctness of
the Court of Appeals on this point.
By stating that "a compulsory submission to arbitration cannot
precede judicial determination that the collective bargaining
agreement does in fact create (the duty to arbitrate)", the
Supreme Court unquestionably placed the responsibility for
determining arbitrability solely in the District Court. This
responsibility cannot be abdicated. Neither may it be
re-determined by the arbitrator.
A determination by the Court that a dispute is arbitrable
cannot be frustrated by a contrary determination of an arbitrator
that the Court was in error. To permit an arbitrator thus to
"second-guess" the Court, would seriously disrupt the proper
allocation of function and responsibility between the Court and
arbitrator as they were formulated in Wiley. If the mandate of
Wiley is to have any meaning at all, it is inconceivable that the
arbitrator should possess authority to dilute the Court's ruling
by finding the dispute not arbitrable.
Other language in the Wiley opinion does not detract from this
position. The Court did state that in those cases "in which
arbitration goes forward, the arbitrator would ordinarily remain
free to reconsider the ground covered by the court insofar as it
bore on the merits of the dispute, using the flexible approaches
familiar to arbitration." However, it is obvious from the context
in which that statement is found, that the Court was referring to
the freedom of the arbitrator to determine "procedural matters
relating to arbitration", as opposed to "substantive
The paragraph from which the above quotation is taken begins as
follows at 557, 84 S.Ct. at 918:
"Once it is determined, as we have, that the parties
are obligated to submit
the subject matter of a dispute to arbitration,
`procedural' questions which grow out of the dispute
and bear on its final disposition should be left to
Thus, the arbitrator may review the Court's determination of
"procedural" matters relating to arbitration, but may not review
the determination that a dispute is arbitrable in the substantive
sense. A comparison of footnotes 1 and 12 in Wiley so
My conclusion on the matter now before me is substantiated by
the Supreme Court's order remanding the case to the District
Court "for further proceedings in conformity with (its)
opinion * *."
It is to be noted that more than three years have passed since
defendant's plant has been shut down. Plaintiff has awaited
defendant's exhaustion of the judicial process at all levels.
Defendant has had its day in court. There can be no reason for
further delay. Arbitration should proceed forthwith. I find that
plaintiff's draft order is in accordance with the Supreme Court's
decision in this case. Accordingly, it should be entered today as
the judgment of this Court.
And it is so ordered.
© 1992-2003 VersusLaw Inc.