have been binding and could not have relieved the Union of its
no-strike pledge. At the very least, Almarc contends, there is
a material issue of fact remaining as to the proper
composition and procedures of a grievance board convened under
the collective bargaining agreement. In the context of the
present dispute, however, Almarc's arguments are not
The Union offered evidence that the Almarc grievance hearing
was conducted by a board regularly constituted under the
collective bargaining agreement. The three "company" members
of the Board were representatives of three major companies
within the petroleum products industry. Through its president,
Alvan Rubin, Almarc offered evidence that although it had no
experience with grievance procedures under the agreement, the
company "believed" that the agreement afforded it the right to
appoint three members to the Board. Almarc's unsupported
belief does not, however, place the propriety of the Board's
composition into issue. Insofar as this collective bargaining
agreement, like most others, was negotiated by employer
representatives within the industry on behalf of employers
like Almarc, the meaning and intent of the agreement can only
be gleaned from the regular practice in the industry. In the
present context, the only evidence relating to industry
practice was presented by the Union to establish that the
Board which heard the Almarc grievance was selected in
compliance with that practice.
Similarly, the Union offered evidence that the Almarc
grievance hearing was conducted in compliance with the regular
procedures of the Board. Almarc's objections to those
procedures do not place the meaning of the collective
bargaining agreement into issue. Accordingly, the Court must
conclude that the procedures afforded Almarc at the Board
hearing on August 26, 1982, complied with the collective
Almarc's objections to the makeup and procedures of the
Board are also intended to establish that the grievance
hearing, even if conducted in compliance with the agreement,
was a sham. To the extent the collective bargaining agreement
permits such hearings, Almarc argues that the agreement is
illusory. Although those procedures may leave much to be
desired, the Court is not prepared to find that the
composition and operation of the Board was a sham. Almarc
signed the collective bargaining agreement and, for better or
worse, consented to be governed by its terms.
Having found that the makeup and operation of the Board
complied with the collective bargaining agreement, the Union
is relieved from its no-strike pledge. Almarc cannot,
therefore, enjoin the Union's striking activity on the basis
of the complaint filed before this Court. Accordingly, the
Union's motion for summary judgment is granted and Almarc's
motion for a preliminary and permanent injunction is
denied.*fn4 It is so ordered.
CLIFTON BUDD BURKE & DEMARIA
420 LEXINGTON AVENUE, NEW YORK, N.Y. 10170
THOMAS W. BUDD
EDWARD J. BURKE
ALFRED T. DEMARIA HENRY CUFTON, JR.
CARLYLE M. DUNAWAY, JR. THOMAS A. BRENNAN, SR.
KEVIN J. MCGiLL COUNSEL
HOWARD G. ESTOCK -----
------- ELECTRONIC DOCUMENT
DAVID I. ROSEN October 29, 1982 COMMUNICATIONS
ROBERT A. WIESEN 212-687-3285
ERIC S. LAMM FEDERAL EXPRESS
RICHARD K. MUSER
DAVID F. HORAN
The Hon. Milton I. Shadur
Judge, United States District Court
United States Courthouse, Room 2325
219 South Dearborn Street
Chicago, Illinois 60604
Re: Teamsters Local 705 v. Almarc Mfg., Inc.
Civil Action No. 82-C-5873
Dear Judge Shadur:
This letter will confirm my telephone conversation of this
afternoon with your law clerk, Richard Levy.
I have been advised by Mr. Robert Buehler, General
Operations Manager of the Defendant, that as of this
afternoon, all of the discharged drivers who are the subject
of the instant lawsuit have been covered by a medical
insurance plan. The premiums for such insurance are being paid
directly by the company.
This action has been taken by the company solely on a
voluntary basis, and without prejudice to the positions it has
taken in connection with Plaintiff's motion for a mandatory
preliminary injunction, merely to ensure continuity in the
discharged drivers' medical insurance coverage. As you know,
the drivers' coverage under the union's health and welfare
plan would have lapsed as of October 31, 1982. Had the company
waited any longer, it might not have been possible to cover
the drivers without a break of some duration in their
The Defendant repeats its request that the union be ordered
either to post a bond sufficient in amount to secure the
premium payments being made by the company on the drivers'
behalf, or that it be ordered to repay the premiums in the
event the company prevails on the merits of the action.
By letter dated October 29, 1982, Mr. John Kienlen,
co-counsel for the Defendant in this action, forwarded to the
Court a copy of Almarc's "Employee Insurance Plan," which
describes in detail the nature of the insurance coverage. I
have also been advised by Mr. Buehler that it became necessary
for the company this afternoon to secure such insurance
coverage from the State Mutual Insurance Company rather than
from the Bankers Life Company which issued the insurance plan
descriptive booklet currently in the hands of the Court. Mr.
Buehler advises me that the only substantive difference
between the Bankers Life Insurance plan and the State Mutual
plan is that the latter does not cover routine physical
examinations. In all other respects, he believes that the
insurance coverage is the same.
Defendant submits that under these circumstances, the
Plaintiff can no longer
claim that it is suffering any "irreparable injury" and thus,
it's motion must be denied by the Court.
Clifton Budd Burke & DeMaria
/s/ David I. Rosen
by: David I. Rosen
cc: John L. Kienlen, Esq.
Sheldon M. Charone, Esq.