clause. The Court rejects the Company's contention that the
controversy is purely representational in nature. Bargaining
unit status is to be determined by construing the Union
recognition clause of the collective bargaining agreement.
This is an arbitrable duty pursuant to the arbitration clause.
In sum, the Court cannot say with "positive assurance" that
this controversy should not be resolved through the
arbitration processes and thus this Court must compel
The Company also argues that the subject matter of this
dispute concerns representation of employees for collective
bargaining, and as such, falls within the primary jurisdiction
of the N.L.R.B. Guided by this belief, the Company has filed
a unit clarification petition with the N.L.R.B. in an effort
to resolve the dispute at issue. However, the Supreme Court
has held to the contrary. In light of the strong presumption
of arbitrability, the existence of a possible remedy with the
N.L.R.B. does not bar suit to enforce the collective
bargaining agreement. Carey v. Westinghouse Electric
Corporation, 375 U.S. 261, 268, 84 S.Ct. 401, 407, 11 L.Ed.2d
320 (1964).*fn9 In fact, if arbitration of a dispute regarding
bargaining unit status takes place before the dispute reaches
the N.L.R.B., "the Board shows deference to the arbitral award,
provided the procedure was a fair one and the results were not
repugnant to the Act." Id. at 270-71, 84 S.Ct. at 408.
Additionally, even if the grievance "is in form a
representation problem, in substance it may involve problems of
seniority when layoffs occur. . . . If that is true, there is
work for the arbiter whatever the Board may decide." Id. at
269-70, 84 S.Ct. at 407-408.
The Company cites two Seventh Circuit cases in support of
the proposition that N.L.R.B. decisions take precedence over
arbitration awards: Local 7-210, Oil, Chemical and Atomic
Workers, International Union, AFL-CIO v. Union Tank Car
Company, 475 F.2d 194 (7th Cir. 1973); Smith Steel Workers v.
A.O. Smith Corporation, 420 F.2d 1 (7th Cir. 1969). However, in
both of these opinions, the Board had already issued a decision
which conflicted with the arbitrator's award, or there was a
possibility that it would conflict if arbitration were
compelled. The Union, in the case at bar, filed this action to
compel arbitration prior to the Company's filing of the unit
clarification petition with the Board. This action does not
involve the question of whether a future decision by the
N.L.R.B. will take supremacy over a future and possibly
conflicting arbitration award. Rather, this Court must decide
if arbitration itself is appropriate to resolve the
controversy. Due to the finding that the issue was arbitrable
in the first instance, the existence of a possible remedy with
the N.L.R.B. does not bar a suit to compel that arbitration.
International Union v. E-Systems, 632 F.2d 487,490 (5th Cir.
The Company also alleges that the Union has not exhausted
the grievance procedure as required by the collective
bargaining agreement and thus the petition to compel
arbitration should be denied. In John Wiley & Sons, Inc. v.
Livingston, 376 U.S. 543, 557, 84 S.Ct. 909, 918, 11 L.Ed.2d
898 (1964), however, the Supreme Court held that "once it is
determined . . . that the parties are obligated to submit the
subject matter of a dispute to arbitration, `procedural'
questions which grow out of the dispute and bear on its final
should be left to the arbitrator." The Wiley court expressed
the concern that matters of procedure often overlap with those
of substance; therefore, a denial of a petition to arbitrate on
procedural grounds in fact might operate sub silentio as a
decision on the merits of the dispute. The Company denied the
grievances filed in behalf of the four Union employees
allegedly laid off out of seniority and refused to take part in
any further grievance or arbitration procedure as mandated by
the collective bargaining agreement.*fn11 Therefore, this
procedural argument is neither supported by the law nor the
undisputed facts of the case.
Stay of Proceedings
Finally, the Company has requested that even if the Court
finds as a matter of law that arbitration should be compelled,
it should stay proceedings until the Board has resolved the
bargaining unit status of the five newly-hired employees. A
motion for a stay is directed to the Court's discretion, and
the power to order a stay is incidental to the power inherent
in every court to control the docket of cases before it in the
interest of time and economy for parties, counsel, and the
court itself. Landis v. North American Co., 299 U.S. 248,
254-55, 57 S.Ct. 163, 165-66, 81 L.Ed. 153 (1936). In making
its determination as to the appropriateness of a stay, the
Court is guided by both practical and legal considerations. In
the instant case, it is this Court's conclusion that a stay
should not issue.
While it is true that the Court of Appeals for this Circuit
has upheld the district court's refusal to compel arbitration
where the Board had issued a decision on the very matter which
the union sought to arbitrate, Smith Steel Workers v. A.O.
Smith Co., 420 F.2d 1, 7 (7th Cir. 1969), it does not follow
that this Court should stay proceedings until the Board has
ruled on the Company's unit clarification petition. There are
practical reasons why arbitration should proceed. The
arbitrator's decision might prove to be consistent with the
subsequent ruling of the NLRB. Expedition of remedies such as
reinstatement of the laid-off employees and back pay would
inure to the benefit both of these employees and the Company.
In addition, by proceeding with arbitration, the Court lessens
the danger that an employer might utilize dilatory tactics to
evade its obligations under a collective bargaining agreement.
There are also sound legal reasons for proceeding with
arbitration despite the pending unit clarification petition
before the NLRB. If a stay were appropriate because of the
pending petition, then a party opposed to arbitration could
ask a court to stay proceedings pending an NLRB decision, then
avoid arbitration altogether after the Board's ruling was
issued under the rationale of Smith Steel Workers, supra.*fn12
While avoiding arbitration in this fashion might often conserve
resources and prevent needless duplication in light of the
supremacy of the Board's decision over that of an arbitrator,
such a result would also be inimical to the strong national
arbitration and the Supreme Court's holding in Carey,
Accordingly, the petition to compel arbitration is granted.
The cross motion for summary judgment to dismiss and the
alternative motion to stay the proceedings are denied. It is