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SKOKIE VAL. BEV. v. BEER

April 19, 1983

SKOKIE VALLEY BEVERAGE COMPANY, A CORPORATION, PLAINTIFF,
v.
BEER, SOFT DRINKS, WATER, FRUIT JUICE, CARBONIC GAS, LIQUOR SALES DRIVERS, HELPERS, INSIDE WORKERS, BOTTLERS, WAREHOUSEMEN, SCHOOL, SIGHTSEEING, CHARTER BUS DRIVERS, GENERAL PROMOTIONAL EMPLOYEES OF AFFILIATED INDUSTRIES, LOCAL UNION NO. 744, AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

This action is before the court on the motion of plaintiff Skokie Valley for a preliminary injunction. Jurisdiction is based on 29 U.S.C. § 185(a). The court decides Skokie Valley's motion on the basis of the parties' briefs and after review of cases cited by the parties. The essential facts are not in dispute, and the court relies on statements of the facts in the parties' briefs. For the following reasons, the court denies Skokie Valley's motion.

I

Skokie Valley is a beverage distributor, employing members of the defendant Union pursuant to a collective bargaining agreement. Article 47, § 1 of that agreement sets out a procedure for resolving disputes between the parties, including referral of disputes to impartial arbitrators. Article 47, § 1, step 2 provides that the arbitrator's findings shall be final and conclusive, and that no strike or lockout shall occur pending a final determination, except as otherwise provided. Article 47, § 1, step 3 allows the Union to strike on 10 days notice if Skokie Valley fails to pay wages.

The present controversy began in December 1981, when Skokie Valley discharged its employee Robert Warger, a member of the Union. Grievance procedures apparently were followed, and the matter eventually was referred to Arbitrator Peter M. Kelliher. On March 15, 1983 Kelliher rendered a decision, concluding that Skokie Valley had violated the collective bargaining agreement by discharging Warger. Kelliher directed Skokie Valley "to reinstate the grievant and make him whole for all monies and benefits lost as a result of his discharge."

On March 21 Skokie Valley conditionally reinstated Warger pending judicial review of Kelliher's decision, but it did not pay him any lost compensation, taking the position that it had no obligation to do so until Warger reduced Kelliher's award to judgment in a judicial proceeding. On April 7 or S the Union notified Skokie Valley that it considered its withholding of Warger's back pay to be a failure to pay wages, entitling the Union to strike after 10 days under Article 47, § 1, step 3.

On April 15 Skokie Valley presented a grievance, raising issues of contract interpretation regarding the finality of an arbitrator's decision, the applicability of step 3 to its failure to pay Warger his lost compensation, and the permissibility, under the Agreement, of the threatened strike. Also on April 15 Skokie Valley filed the present lawsuit, asking the court to vacate Kelliher's decision and to restrain or enjoin the threatened strike. That same day Skokie Valley moved for a temporary restraining order. The parties filed memoranda and made brief oral presentations, and the court denied Skokie Valley's motion. On April 18 Skokie Valley filed the present motion for a preliminary injunction against the threatened strike.

II

The competing goals of 29 U.S.C. § 104 and 29 U.S.C. § 185(a) have been balanced in Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), and Buffalo Forge Co. v. United Steel Workers, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976). See also Jacksonville Bulk Terminals, Inc. v. International Longshoremen's Ass'n, ___ U.S. ___, 102 S.Ct. 2673, 73 L.Ed.2d 327 (1982); Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974). When a union has agreed to arbitrate disputes instead of striking, then federal courts can enjoin the union from striking pending arbitration of the dispute underlying the strike. Such an injunction is proper, as it issues in aid of arbitration. Boys Markets, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199. When the arbitrable issue is the permissibility of the strike itself, rather than some other underlying issue, then an injunction should not issue. In such a case the strike does not constitute an evasion of an agreement to arbitrate disputes; further, issuance of an injunction could interfere with subsequent arbitration of the permissibility of the strike, as the court's ruling might overshadow or prejudge the arbitrator's decision. Buffalo Forge, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022. See also Design & Manufacturing Corp. v. UAW, 608 F.2d 767 (7th Cir. 1979), cert. denied, 446 U.S. 938, 100 S.Ct. 2158, 64 L.Ed.2d 791 (1980); Zeigler Coal Co. v. Local No. 1870, 566 F.2d 582 (7th Cir. 1977), cert. denied, 436 U.S. 912, 98 S.Ct. 2253, 56 L.Ed.2d 413 (1978).

Skokie Valley offers two justifications for issuance of an injunction in this case. First, Skokie Valley argues that the issues grieved on April 15 are arbitrable disputes pending resolution of which the Union has agreed not to strike. These issues include the finality of the arbitrator's decision, the applicability of step 3 to the lost compensation award, and the permissibility of the threatened strike. Second, Skokie Valley argues that arbitration of the initial dispute, Warger's discharge, is still pending, since the arbitration process includes judicial review of the arbitrator's decision; until a final determination by judicial review, Skokie Valley argues, the Union is bound contractually not to strike.

Skokie Valley's first argument, taken by itself, is insufficient. Skokie Valley identifies issues grieved on April 15 and seeks to enjoin the threatened strike pending arbitration of these grievances; however, the court believes, contrary to Skokie Valley's position, that these grievances all, in different forms, question the permissibility of the threatened strike, rather than raising any arbitrable dispute underlying the threatened strike. For instance, the question of the finality of the arbitrator's decision does not underlie the threatened strike; it really is just one way of asking whether the threatened strike violates the no-strike agreement, since the Union has agreed not to strike only until there is a final determination. The Court of Appeals for the Second Circuit has stated succinctly: "[T]he mere arbitrability of the issue of whether a strike or work stoppage violates an express or implied no-strike clause does not entitle the employer to `Boys Markets' injunctive relief; there must be an underlying arbitrable grievance." Elevator Manufacturers' Ass'n v. Local 1, 689 F.2d 382, 385 (2d Cir. 1982). See also Buffalo Forge, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022. As no other underlying dispute has been suggested, the success of Skokie Valley's first argument depends on the success of its second argument. It must appear that the dispute over Warger's discharge still can be considered an arbitrable dispute pending resolution of which the Union has agreed not to strike; or, stated differently, it must appear that Kelliher's decision was not a "final determination" for purposes of Article 47, § 1, step 2.

Since this threshold question is a difficult one of interpreting the language of the collective bargaining agreement, and since Skokie Valley already has referred it to the grievance and arbitration process, it might be held that the court should not issue an injunction, since in doing so it would overshadow and prejudge an arbitrator's resolution of the question. Waller Brothers Stone Co. v. United Steelworkers, 620 F.2d 132 (6th Cir. 1980). (Additionally, the existence of an arbitrable dispute over step 3 might preclude a decision by this court under Waller Brothers.) On the other hand, Elevator Manufacturers' Ass'n holds that courts should approach these threshold questions. 689 F.2d at 386. It is not clear whether serious questions of interpretation were present in Matson Plastering Co. v. Operative Plasterers, 633 F.2d 1307 (9th Cir. 1980), cert. denied, 454 U.S. 816, 102 S.Ct. 94, 70 L.Ed.2d 85 (1981), or in Eaton Corp. v. Machinists and Aerospace Workers, 580 F.2d 254 (7th Cir. 1978). Because the law is not clear in this area, the court will not follow Waller Brothers; instead it will approach the necessary threshold question of whether arbitration over Warger's discharge, pending final determination of which the Union has agreed not to strike, has reached a final determination.

III

Skokie Valley has touched on, but not actually advanced, one possible argument against the finality of the arbitrator's decision. Counsel for Skokie Valley noted in court that the arbitrator's award of lost compensation was unliquidated, and he referred to the difficulty of complying with an unliquidated award. Skokie Valley has not raised this point in its briefs in connection with the finality of the arbitrator's decision. More ...


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