Appeals from the United States District Court for the Southern District of Illinois, Northern Division. No P-Civ-76-113 and No. P-Civ-76-129. Robert D. Morgan, Judge.
Before Pell and Wood, Circuit Judges, and Flaum, District Judge.*fn*
In the district court the employer sought declaratory judgments in these consolidated appeals that it had not violated the collective bargaining agreement in refusing to satisfy the claims of two employees. The district court granted summary judgments for the employer. The unions appeal. We affirm.
The first grievance arose from the employer's discharge of employee Bor for fighting on the job site during working hours. Bor seeks reinstatement and back pay. In the second grievance, employee Watson demands payment on his behalf to the contractually specified welfare fund for the twelve month period following his dismissal for negligent operation of a company vehicle.
Pursuant to the collective bargaining agreement grievance procedure, both claims were submitted to a committee composed of equal numbers of management and union representatives. The joint committee deadlocked on both the merits of the grievances and on submission to arbitration. Deadlock was the final step in the grievance procedure. Thereafter the collective bargaining agreement permitted each party to take "all lawful economic recourse." Following deadlock the employer filed this action.
The plaintiffs were represented in the initial stages of the action by a law firm in which the brother of the district court judge was a senior partner. Three days after the union suggested that the judge disqualify himself, plaintiffs' counsel withdrew and was replaced by the plaintiffs' present counsel who has no family relationship with the district judge. Three weeks later summary judgment was granted for the plaintiffs.
Four issues are presented on appeal. (1) Whether the provision of the agreement permitting economic recourse following deadlock foreclosed the plaintiffs from bringing actions pursuant to § 301 of the Labor Management Relations Act of 1947; (2) Whether summary judgment was properly granted in the Bor grievance; (3) Whether summary judgment was properly granted in the Watson dispute; and (4) Did the judge's failure to disqualify himself violate the standards for disqualification set forth in 28 U.S.C. § 455?
The threshold issue in this case is whether the district court was divested of its jurisdiction under § 301 of the Labor Management Relations Act*fn1 over the plaintiffs' action for declaratory judgment by the collective bargaining provision permitting the parties "all lawful economic recourse."*fn2 We have addressed this issue before. In Associated General Contractors of Illinois v. Illinois Conference of Teamsters, 486 F.2d 972 (7th Cir. 1973), the collective bargaining agreement provision reserved the parties' rights to resolve deadlocked grievances by economic recourse. The court found that this provision did not divest the court of jurisdiction to resolve the dispute presented by the employer's action for declaratory judgment.
Defendants contend that the Associated General decision is a glaring exception to the holdings and rationale of other federal labor cases and should be overruled.*fn3 Specifically, the defendants contend that the decision is premised on a general federal anti-strike policy which the United States Supreme Court has rejected. The Associated General decision is consistent with the cases preceding it. The reasons for the decision are clearly set out and need not be repeated. As to the claim of an anti-strike bias, the Associated General decision did not prohibit the use of all economic weapons. The court looked to the language of the agreement to determine if non-economic weapons which would be available under § 301 absent the economic-recourse provision were precluded by it and found they were not.
Defendants argue that summary judgment for the plaintiffs on the Bor matter was improperly granted because the question of whether discharge was for justifiable cause was one of fact and not resolvable on summary judgment. The defendants further argue that the absence of findings of fact and conclusions of law by the trial court prevents the plaintiffs from establishing on review that summary judgment was properly entered.
The issue at trial was whether the employer breached the collective bargaining agreement provision authorizing the employer to discharge employees for just cause when it discharged Bor for fighting on the job site during working hours.*fn4 Summary judgments are properly granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). All factual inferences must be drawn in the light most favorable to the opposing party. Fitzsimmons v. Best, 528 F.2d 692, 694 (7th Cir. 1976); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962). The burden of proof is on the moving party. 6 Moore's Federal Practice P 56.17(11). Findings of fact and conclusions of law by the trial court may be helpful in carrying this burden on review but are not necessary. Fed.R.Civ.P. 52(a); Moore at P 52.08. Disputes over interpretations of "just cause" provisions are resolvable by summary judgment where there is no genuine issue of material fact.*fn5
The parties stipulated to the following facts. "A dispute developed over Bower's (another laborer) use of his personal automobile in this work and led to a heated verbal argument and an exchange of profanity and insult between Atchley and Bor. Bor swung at Atchley, who blocked the blow. Atchley kicked Bor below the stomach, leaving bruises. Bor went to the truck, returned with a three-foot "Maddox' handle and struck Atchley twice, first, on the back which knocked him to the ground and then again on his legs. Both Bor and Atchley were discharged for ...