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PIANO & MUSIC. INSTR. WKRS. LOC. NO. 2549 v. KIMBALL

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,
v.
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
said agreement."

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:

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 is arbitrable.

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
  1728."

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 ...


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