The opinion of the court was delivered by: Robert D. Morgan, District Judge.
DECISION AND ORDER ON MOTION TO STAY PROCEEDINGS
The complaint herein is for damages for alleged violation by
defendant of a collective bargaining agreement in an industry
affecting commerce, as specifically authorized by Section 301 of
the Labor-Management Relations Act (Title 29 U.S.C. § 185).
Defendant, without filing an answer, has moved for a stay of
proceedings in this suit to permit arbitration of the "dispute,"
as it contends is required by Article XXVII of the agreement
attached to the complaint. It relies entirely for this position
on Drake Bakeries, Inc. v. Local 50, Am. Bakery Workers,
370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962), in which a District
Court grant of a stay in such a suit was affirmed. Upon
consideration of said motion and the opinion in Drake Bakeries,
supra, in the light of the allegations of the complaint herein,
including the agreement, it is apparent to this court that the
motion for stay should be denied without oral hearing thereon,
under the provisions of Rule 12(b) of the rules of this court.
The Drake Bakeries decision rested upon unusually broad and
specific language in the collective bargaining agreement there,
which was held to show an intention of the parties to provide
application of the agreed grievance procedure on "* * * all
complaints, all disputes and all grievances involving any act of
either party, or any conduct of either party any relation between
the parties directly or indirectly" (Drake Bakeries, supra at p.
258, 82 S.Ct. 1346), and on the fact that the employer there had
itself initiated arbitration of the question of breach of
contract and damages suffered by the company as a result of a
previous strike (Drake Bakeries, supra at p. 260, 82 S.Ct. 1346).
While a "strike" was involved there, as here, the dissimilarity
of the agreement and the facts alleged here, which at this stage
and for this purpose must be taken as true, show that Drake
Bakeries is completely inapposite.
Here, while Article XXVII of the agreement directs the
grievance procedure on "any other grievance or dispute," as well
as those over "interpretation or application of the terms or
provisions of this Agreement," the procedure which follows shows
clearly that a grievance must be initiated by "the employee or
his steward" and makes no provision of any kind for employer
initiation of grievances or for processing of a grievance on the
part of the employer. The employer here clearly has not by the
agreement attached to the complaint agreed to submit to
arbitration the question of damages for a strike in violation of
contract. It is noted that the Agreement here, by Article XXVII,
Section 2 and Article XXVIII, does not provide for arbitration of
all grievances, but only those involving "interpretation" or
"application" of the terms of the agreement. As reemphasized in
Drake Bakeries, at page 256, 82 S.Ct. at page 1348, "A party
cannot be required to submit to arbitration any dispute which he
has not agreed so to submit."
Based on the allegations of the complaint here, any failure of
the grievance and arbitration provisions of the agreement to
resolve disputes without interruption of work as contemplated by
mature collective bargaining, came when employees allegedly
"concertedly refused to work" with alleged union authority
instead of utilizing the grievance procedure for resolution of
the cause of their discontent. Responsible action on the part of
both parties in conformance with the collective bargaining
agreement they made is what both Section 301 and the Drake
Bakeries' decision are all about. (See Drake Bakeries, supra at
p. 263 ff, 82 S.Ct. 1346.)
Where, as here, the agreement does not provide for initiation
of the grievance procedure by the employer, the employer must
take such management action as it considers advisable and
believes is permissible under the agreement. If an employee or
employees or the union consider that the company has violated the
agreement by such action, a grievance may be initiated by those
on the union side of the agreement so believing, and it is their
clear duty to do so rather than to violate a contract promise not
to engage in a concerted work stoppage. If they do violate such
promise, the Section 301 action is clearly available and should
not be stayed for an arbitration proceeding which was not agreed
Accordingly, it is ordered that defendant's Motion to Stay
Proceedings be and it hereby is denied.
It is further ordered that defendant file its answer herein
within twenty days from the date hereof.
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