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.
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.
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.
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 ...