The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiff Warehouse, Mail Order, Office, Technical and Professional
Employees, Local No. 743, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America ("Plaintiff") brought
this action against defendants, Carl Gorr Color Card, Inc. ("Gorr"), and
Carl Gorr Color Card Division of Color Communications, Inc. ("Color
Communications"), seeking enforcement of an arbitration award rendered
against Gorr on December 4, 1978.
On January 27, 1981, the Court remanded this case to the arbitrator
upon the premise that the parties had agreed that such a remand was
appropriate in light of an alleged ambiguity in the arbitrator's
decision. Contrary to the representations of plaintiff's counsel on
January 27th, however, the parties apparently were not so agreed and
defendants have moved for reconsideration of the remand. After a thorough
review of the memoranda filed by the parties, the Court is of the opinion
that this case best can be resolved through a remand to the arbitrator.
The motion for reconsideration is granted, however, in the interest of
freely airing the issues raised by the parties.
The original dispute between plaintiff and Gorr arose when the parties
were unable to agree on the appropriate amount of vacation pay due Gorr
employees when Gorr ceased operations in January, 1978. Pursuant to the
terms of their collective bargaining agreement, the parties submitted the
matter for arbitration. The award made by the arbitrator is as follows:
Employees of the company in employment as of January
15, 1978, are entitled to their full 1977 vacation pay
plus the appropriate proration up to January 15,
1978, under the terms of the Labor Agreement between
Those employees who have not yet received vacation pay
on this basis are entitled to the appropriate
additional vacation pay which is due them under this
Plaintiff now seeks enforcement of this award against Color
Communications, which purchased the assets of Gorr on January 17, 1978.
Defendants contend that the complaint should be dismissed for lack of
subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) or,
alternatively, that they are entitled to summary judgment on that issue
under Fed.R.Civ.P. 56. Defendants also maintain that Color Communication
is not a proper party to this case because the arbitration award was
rendered against Gorr alone. Alternatively, defendants ask the Court to
remand the case to the arbitrator for clarification of an allegedly
With regard to the jurisdictional issue, defendants argue that
plaintiff's action is governed by 9 U.S.C. § 9 of the United States
Arbitration Act ("USAA") which provides a one-year statute of limitations
for instituting suits to enforce an arbitration award. Since plaintiff
instituted this action more than two years after the issuance of the
arbitration award, defendants contend that it is untimely and must be
Conversely, plaintiff asserts that this action was properly brought
pursuant to section 301 of the Labor Management Relations Act, ("LMRA")
29 U.S.C. § 185. Although section 301 does not specify a time
limitation for instituting such actions, the Supreme Court has held that
the timeliness of some section 301 actions may be determined by reference
to the applicable state statute of limitations. International Union v.
Hoosier Cardinal Corporation, 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192
(1965). Applying the Hoosier rule, plaintiff contends that the Illinois
five-year statute of
limitations governing actions on arbitration awards, Ill.Rev.Stat., ch.
83 § 16 (1969), is the relevant time limitation applicable to the
instant action, and therefore this suit was timely filed.
Although the Seventh Circuit has never expressly decided whether a
motion to enforce an arbitration award properly may be brought under
section 301, of the LMRA applying the applicable state statute of
limitations after the one-year statute of limitations under section 9 of
the USAA has run, other circuits confronted with the question have held
that an action to enforce an arbitration award properly may be brought
under either the LMRA or the USAA.
In International Union v. White Motor Corporation, 374 F. Supp. 421
(D.Minn. 1973), the court specifically addressed the issue of whether the
USAA provided the sole basis of jurisdiction, or whether a motion to
enforce an arbitration award could also be brought under section 301 of
the LMRA. The court held that the USAA did not provide the sole basis of
jurisdiction and that the action was proper under section 301.
Similarly, in Santos v. District Council of New York City, 619 F.2d 963
(2d Cir. 1980), the court stated that it was an established principle of
law that an action to enforce an arbitration award properly may be
brought under section 301 of the LMRA. Accordingly, the court adopted the
Hoosier rule and applied the New York statute of limitations governing
actions on arbitration awards. See also Kallen v. District 1199, National
Union of Health Care Employees, 574 F.2d 723 (2d Cir. 1978); Local 1115
v. B & K Investments Incorporated, 85 CCH Lab.Cas. 910, 949, 100 LRRM
2174 (S.D.N Y 1978).
While the issue presented in the instant case is one of first
impression in this circuit, two recent decisions by the United States
Court of Appeals for the Seventh Circuit, when read together, clearly
imply that a motion to enforce an arbitration award may be ...