United States District Court, Northern District of Illinois,E. D
April 29, 1981
LOCAL 189, SERVICE EMPLOYEES UNION, PLAINTIFF,
SCOT LAD FOODS, INC., DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Local 189, Service Employees Union ("Union") brought this
action to compel Scot Lad Foods, Inc. ("Scot Lad") to arbitrate
a labor dispute. Scot Lad has counterclaimed seeking tripartite
arbitration among Scot Lad, Union and Teamsters Locals 705 and
710 (collectively "Teamsters"). Several motions are now before
(1) Union's motion for summary judgment on its complaint;
(2) Union's motion to dismiss the counterclaim;
(3) Scot Lad's motion for summary judgment on its
(4) Scot Lad's motion to dismiss the complaint under
Fed.R.Civ.P. ("Rule") 12(b)(7) for failure to join
indispensable parties; and
(5) Scot Lad's alternative motion for an order joining
Teamsters in this action.
For the reasons stated in this memorandum opinion and order
each of Union's motions is granted and each of Scot Lad's
motions is denied.
Scot Lad operates a wholesale food distributorship in Lansing,
Illinois. Three different unions represent its employees: Union
represents plant guard and security personnel, Teamsters Local
705 represents local truck drivers and Teamsters Local 710
represents long distance truck drivers.
Scot Lad's delivery trucks use a tachograph, a device that
records the operating time of a truck. Before a truck leaves
its Lansing facility a disc is placed in the tachograph, the
timer is wound and the device is sealed. Upon the truck's
return the seal is broken and the disc removed.
This action stems from Scot Lad's having reassigned the task of
inserting and removing the discs, previously performed by
Teamsters members, to members of Union. Union objected that
Scot Lad cannot require Union's members to handle tachographs
under their present collective bargaining agreement (the
"Contract").*fn1 It invoked the grievance procedures under
Article 6 of the Contract:
Should any differences, disputes or complaints arise over the
interpretation or application of the contents of this
Agreement, there shall be an earnest effort on the part of both
parties to settle such promptly through the following steps:
Step 1. By conference between the steward, sergeant and the
employee or employees involved.
Step 2. By conference between the steward, sergeant,
personnel manager and employee or employees involved.
Step 3. By conference between the steward, personnel manager,
sergeant, employee and an official of the union.
Step 4. In the event the previous steps fail to settle the
complaint or grievance, the union may request that the matter
be referred to a Board of Arbitration.
When the first three steps failed, Union requested submission
of the matter to arbitration, and Scot Lad joined Union by
a joint "Request for Arbitration Panel" mailed to the Federal
Mediation and Conciliation Service. Scot Lad then sought to
withdraw from that commitment. It takes the position that it is
willing to arbitrate the dispute, but only if Teamsters are
joined in a tripartite arbitration.
Duty To Arbitrate
Arbitration is a contractual remedy that can be ordered by a
court only if the parties intended to bind themselves to do so.
At the outset this Court must therefore determine whether
Contract Article 6 mandates arbitration and, if not, whether
there is any other basis for requiring Scot Lad to arbitrate
the current dispute.
Article 6 states that there "shall be an earnest effort" by the
parties to settle disputes using Steps 1-4. Like an agreement
to agree, that phrase does not itself establish binding
obligations. Step 4, the arbitration provision, states only
that the union "may request" arbitration. While that language
too is far from a model of clarity, for summary judgment
purposes the inference can clearly be drawn that it gives Scot
Lad the option of rejecting a request for arbitration (the
inference most favorable to Scot Lad's position).
While under that reading the Contract gave Scot Lad the
opportunity to refuse Union's arbitration request, arbitration
was nonetheless a contemplated component of the established
grievance procedures. Union exercised its right to invoke the
arbitration provision in this specific dispute by asking Scot
Lad to sign a form requesting a panel of arbitrators. Scot Lad
agreed to arbitrate and signed the panel request form. Once
Scot Lad had so accepted Union's request for arbitration, each
party was bound under familiar contract concepts of offer and
acceptance. Such a construction of the Contract and the
parties' conduct is further supported by, and consistent with,
the Supreme Court's wellestablished presumption in favor of
arbitration. United Steelworkers of America v. Warrior & Gulf
Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1352, 4
L.Ed.2d 1409 (1960).
Indeed, though this added factor is non-determinative, both
parties still seek arbitration. They dispute only the necessity
of including Teamsters. In that respect, Scot Lad relies on a
number of cases in which two unions have been involved in
jurisdictional disputes and courts have ordered three or more
parties to arbitrate.
In the present posture of the litigation this Court could not
grant Scot Lad's motion for summary judgment on its
counterclaim and order tripartite arbitration. Teamsters are
not parties to this litigation and cannot be included in any
form of relief. Thus the real issue is whether the Court should
order joinder of Teamsters or, in the alternative, dismiss this
action for Union's failure to join those parties.
Rule 19(a) provides:
A person who is subject to service of process and whose joinder
will not deprive the court of jurisdiction over the subject
matter of the action shall be joined as a party in the action
if (1) in his absence complete relief cannot be accorded among
those already parties, or (2) he claims an interest relating to
the subject of the action and is so situated that the
disposition of the action in his absence may (i) as a practical
matter impair or impede his ability to protect that interest or
(ii) leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or otherwise
inconsistent obligations by reason of his claimed interest.
Under that provision the question is whether the absence of
Teamsters will subject Scot Lad to "a substantial risk of
incurring . . . inconsistent obligations. . . ."*fn2
In judicial terms the notion of tripartite arbitration had its
origin in Transportation-Communication Employees Union v.
Pacific Railroad Co., 385 U.S. 157, 87 S.Ct. 369, 17 L.Ed.2d
264 (1966). There the advent of a computer had resulted in the
elimination of two jobs with the creation of only one new job.
Employees were represented by two separate unions, one of which
brought the problem before the Railroad Adjustment Board
("Board"), a body quite similar to an arbitration panel.
Because it considered that both unions ought to have been
before the Board, the Court vacated the Board's decision (385
U.S. at 161-62, 87 S.Ct. at 371):
There are two kinds of these jurisdictional disputes. Both are
essentially disputes between two competing unions, not merely
disputes between an employer and a single union. The ordinary
jurisdictional dispute arises when two or more unions claim the
right to perform a job which existed at the time their
collective bargaining contracts with the employer were made. In
such a situation it would be highly unlikely that each contract
could be construed as giving each union the right to be paid
for the single job. But the dispute before us now is not the
ordinary jurisdictional dispute where each union claims the
right to perform a job which existed at the time its collective
bargaining agreement was made. Here, though two jobs existed
when the collective bargaining agreements were made and though
the railroad properly could contract with one union to perform
one job and the other union to perform the other, automation
has now resulted in there being only one job, a job which is
different from either of the former two jobs and which was not
expressly contracted to either of the unions.
As in the first situation described in
Transportation-Communication Employees Union, the tachograph
task existed at the time all collective bargaining agreements
involved in this action were written. That factor alone might
suffice to take this case out of the area of disputes requiring
tripartite arbitration. But this is an a fortiori situation,
for the unions here are not competing for a single job. On
the contrary, Union is trying to protect its members from
performing a specific task.
Should an arbitrator hold that Union's contract prevents
assignment of the task to its members, Teamsters could
scarcely, through arbitration or otherwise, win the right not
to perform a task they had previously performed under their
existing contract. And if the arbitrator holds otherwise,
Teamsters members would still have their jobs and would be rid
of that task. Little wonder then that Teamsters have neither
filed a grievance nor attempted to intervene in this action.
Clearly whatever slight possibility of Scot Lad being subjected
to inconsistent adjudication might exist, it is not the
substantial possibility required by Rule 19. Wherever
tripartite arbitration has been ordered (or a third party has
been found "necessary" under Rule 19), the cases have involved
two unions competing for some benefit. See, Window Glass
Cutters League v. American St. Gobain Corp., 428 F.2d 353 (3d
Cir. 1970); Columbia Broadcasting System, Inc. v. American
Record & Broadcasting Association, 414 F.2d 1326 (2d Cir.
1969); Edmos Corp. v. Textile Workers, 80 LRRM 3225 (S.D.N Y
This Court's determination that arbitration is required, but
that tripartite arbitration is not, effectively disposes of
this case. Accordingly this Court specifically finds that there
is no remaining genuine issue as to any material fact and that
Union is entitled to a judgment as a matter of law. Union's
motion for summary judgment is granted and the parties are
ordered to proceed to arbitration. Scot Lad's motions are
denied and its counterclaim is dismissed.