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INTERNATIONAL BROTH., ETC. v. CHICAGO ZONE

November 10, 1981

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 134, AFL-CIO, PLAINTIFF,
v.
CHICAGO ZONE OF THE MARKETING OPERATIONS OF THE GENERAL ELECTRIC COMPANY, DEFENDANT.



The opinion of the court was delivered by: Aspen, District Judge:

  MEMORANDUM OPINION AND ORDER

Plaintiff International Brotherhood of Electrical Workers, Local Union 134, AFL-CIO ("Union") brought this action to compel arbitration under a collective bargaining agreement of a dispute between the Union and the defendant employer, Chicago Zone of the Marketing Operations of the General Electric Company ("Company").*fn1 The case is presently before the Court on cross motions for summary judgment and on defendant's alternative motion for a stay of the proceedings. For the reasons set forth below, the Union's motion for summary judgment is granted and the Company's cross motion for summary judgment is denied. The Company's alternative motion for stay of proceedings is also denied.

On December 1, 1979, the parties entered into a collective bargaining agreement for a period of three years, to expire on November 30, 1982. In addition to setting forth the agreement of the parties as to wages, hours, and other conditions of employment, the contract included a recognition clause*fn2 describing the bargaining unit and an arbitration clause.*fn3

Since no material issues of fact are in dispute, the parties' cross motions for summary judgment are now ripe for disposition. The Seventh Circuit has noted that "[w]ith the ever increasing burden upon the judiciary, persuasive reasons exist for the utilization of summary judgment procedure whenever appropriate." Kirk v. Home Indemnity Co., 431 F.2d 554, 560 (7th Cir. 1970). Moreover, there are no questions of motive and intent involved in this case, questions which this circuit has observed are "particularly inappropriate for summary adjudication." Cedillo v. International Association of Bridge and Structural Iron Workers, Local Union No. 1, 603 F.2d 7, 11 (7th Cir. 1979).

The central issue in this case is whether the dispute arising from the layoffs of four Union employees is arbitrable pursuant to the terms of the collective bargaining agreement in effect between the parties.*fn5 The Union argues that the Company breached the collective bargaining agreement by refusing to submit to arbitration a dispute which falls well within the agreement's broad arbitration clause. The Company, on the other hand, puts forth several arguments in opposition to the request for arbitration. First, it argues that the arbitration clause does not cover grievances involving placement upon lay-off in non-bargaining unit positions, and the newly-hired On-TV antennae installers are not members of the bargaining unit. Second, the Company asserts that the subject matter of this dispute concerns representation of employees for purposes of collective bargaining, and as such, falls within the primary jurisdiction of the N.L.R.B. Finally, it alleges that the Union has not exhausted the grievance procedure as required by the collective bargaining agreement.

Substantive Arbitrability

This Court has noted that "[e]ver since the Steelworkers Trilogy,*fn6 it has been recognized that national labor policy favors the use of arbitration as a means of resolving employer-employee disputes. Underlying this policy is the assumption that arbitration of labor problems provides the best hope for promoting industrial peace and avoiding the economic upheaval that results from strikes and employer lockouts."*fn7 Local 344 Leather Goods, Plastics & Novelty Workers' Union AFL-CIO v. The Singer Company Piecework Control Systems, 478 F. Supp. 441, 444 (7th Cir. 1979). One of the underlying objectives of the National Labor Relations laws is to promote collective bargaining agreements and to give substance to these agreements through the arbitration process. Carey v. Westinghouse Electric Corporation, 375 U.S. 261, 264, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964). In an effort to facilitate this objective, the Supreme Court has fashioned several rules of construction for collective bargaining agreements and arbitration clauses.

A federal court has a limited role in suits to compel arbitration. "It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is covered by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator." United Steelworkers of America v. American Manufacturing, 363 U.S. 564, 567-68, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960). The Supreme Court has recognized that collective bargaining agreements, and thus arbitration clauses, are consensual arrangements. However, the Court has held a dispute should not be considered non-arbitrable "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." United Steelworkers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960). "In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail. . . ." Id. at 584-85, 80 S.Ct. at 1353-54. Once the court determines that the parties to a collective bargaining agreement are subject to a broad arbitration clause extending to any differences between them, a claim that particular grievances are barred because a valid defense to enforcement of the collective bargaining agreement exists, is an arbitrable question under the agreement. International Union of Operating Engineers, Local 150, AFL-CIO v. Flair Builders, Inc., 406 U.S. 487, 492, 92 S.Ct. 1710, 32 L.Ed.2d 248. "By requiring the court to compel arbitration unless it can say with `positive assurance' that such was not intended by the parties to the agreement, the Supreme Court has sought to ensure that federal courts will not take it upon themselves to deny arbitration because of their own view as to the merits of the dispute."*fn8 Local 344 Leather Goods, Plastics & Novelty Workers Union AFL-CIO v. The Singer Company Piecework Control Systems, 478 F. Supp. 441, 445 (7th Cir. 1979).

There is little question that the parties to the instant action are subject to a collective bargaining agreement containing an arbitration clause. This clause states that arbitration should be utilized to resolve "any controversy or grievance involving the meaning of application of any of the provisions of this agreement." Further, it is undisputed that the parties are bound by the seniority provisions within the agreement. Therefore, the Union's allegation that the Company violated the agreement by laying off four employees out of seniority is within the scope of the arbitration 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 arbitration.

Primary Jurisdiction

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. ...


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