United States District Court, Southern District of Illinois, Benton Division
February 1, 1985
DISTRICT 12, UNITED MINE WORKERS OF AMERICA, ET AL., PLAINTIFFS,
PEABODY COAL COMPANY, DEFENDANT.
The opinion of the court was delivered by: Foreman, Chief Judge:
MEMORANDUM AND ORDER
This case is now before the Court on the cross-motions for
summary judgment (Document No. 7 and 16). Plaintiffs brought this
action pursuant to § 301 of the Labor Management Relations Act,
29 U.S.C. § 185, to enforce a prior arbitration award dated
October 30, 1974, rendered by arbitrator Fisher, which held that
Peabody Coal Company (Peabody) did not violate the collective
bargaining agreement by abolishing the exclusively first shift
job of belt repairmen but that Peabody did not have the right to
assign the grievants (former first shift belt repairmen) to a
rotating shift against their wills.
The plaintiffs herein allege that Peabody, pursuant to a
reduction and realignment of its work force has violated the 1974
award by assigning them to rotating shifts every two weeks.
The defendant argues that whether or not the 1974 award is
binding in this context is a matter for arbitration and not for
this Court to decide. On the other hand, the plaintiffs argue
that since the present action concerns matters identical both as
to parties and issues as the 1974 award, this Court should
enforce the 1974 award without requiring the plaintiffs to again
submit to arbitration.
Summary judgment is appropriate only where the record shows
that "there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56. The party moving for summary judgment has the
burden of establishing the lack of a genuine issue of material
fact. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th
Cir. 1984). The Court must view the evidence, and the reasonable
inferences to be drawn therefrom, in the light most favorable to
the party opposing summary judgment. Where the moving party fails
to meet its strict burden of proof, summary judgment cannot be
entered even if the opposing party fails to respond to the
motion. Yorger v. Pittsburg Corning Corp., 733 F.2d 1215 (7th
Where the moving party has met its initial burden and the
opposing party asserts the existence of a question of fact, the
Seventh Circuit has identified two considerations to be used in
determining whether the non-moving party has established that
there is a genuine issue as to that fact.
To create a question of fact, an adverse party
responding to a properly made and supported summary
judgment motion must set forth specific facts showing
that there is a genuine issue for trial. . . . A
party may not rest on mere allegations or denials of
his pleadings; similarly, a bare contention that an
issue of fact exists is insufficient to raise a
Posey v. Skyline Corp. 702 F.2d 102
, 105 (7th Cir.), cert.
denied, ___ U.S. ___, 104 S.Ct. 392
, 78 L.Ed.2d 336 (1983).
Furthermore, the disputed fact must be material, that is, it must
be outcome-determinative under the applicable law. Egger v.
Phillips, 710 F.2d 292
, 296 (7th Cir.) (en banc), cert. denied,
___ U.S. ___, 104 S.Ct. 284
, 78 L.Ed.2d 262 (1983).
The fact that both parties argue for summary judgment does not
indicate that there is no genuine issues of material fact.
Wright, Miller and Kane, Federal Practice and Procedure: Civil 21
§ 2720. The Court must rule on each motion separately,
determining as to each motion whether a judgment may be entered
in accordance with the above principles. Id.
Applying these principles to the case at hand, the Court finds
that the defendant's motion for summary judgment should be
granted and that the plaintiff's motion for summary judgment
should be denied.
Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185,
authorizes a union as party to, and employees as
beneficiaries of, a collective bargaining agreement to bring an
action in federal court to enforce an arbitration award made
pursuant to the provisions of the collective bargaining
agreement. See United Steel Workers of America v. Enterprise
Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424
(1960). However, courts have refused to enforce blindly prior
arbitration awards when an allegation has been made that the
facts surrounding the present grievance are different from those
covered under the prior award. Where there exists a clear
difference between the current facts and those giving rise to the
prior arbitration award, the courts have uniformly refused to
enforce the prior award, directing the parties to submit the
matter to arbitration.
Currently, there is a split in the circuits as to just how much
factual identity is required before a court will enforce the
prior award. The Fifth Circuit has held that if there exists
"material factual identity" the prior award must be enforced.
Oil, Chemical and Atomic Workers International Union v. Ethyl
Corporation, 644 F.2d 1044 (5th Cir. 1981). The Ethyl court added
that "material factual identity" exists when "there is no
difference between the current facts and those giving rise to the
prior arbitration award which, when analyzed in light of the
mandates of the collective bargaining agreement, would justify an
arbitrator's reaching a different conclusion in each of the two
cases." 644 F.2d at 1055.
On the other hand, the Third Circuit has held that in order to
enforce the prior award the district court:
must be able to say "with positive assurance" that
the award or settlement was intended to cover the
dispute. If the Court has any doubt, the parties
should be returned to their grievance procedure and
arbitration, for it is an arbitrator, and not the
Court, who is to decide whether the same issue has
already been resolved in an earlier proceeding.
United Mine Workers, District 5 v. Consolidated Coal Co.,
666 F.2d 806
, 811 (3d Cir. 1981) (footnote and citation omitted).
Other circuits have gone even further than Consolidated Coal.
The Fourth Circuit has stated that "[w]hether [a prior award] can
be given an effect akin to res judicata or stare decisis with
regard to future disputes . . . neither the district court nor
this Court should decide. If the parties do not agree, that issue
itself is a proper subject for arbitration." Little Six Corp. v.
United Mine Workers of America Local 8332, 701 F.2d 26, 29 (4th
Cir. 1983) (ironically quoting the pre-Ethyl Fifth Circuit case
of New Orleans S.S. Ass'n. v. General Longshore Workers,
626 F.2d 455, 468 (5th Cir. 1980), aff'd sub nom. Jacksonville Bulk
Terminal, Inc. v. Longshoremen's Ass'n., 457 U.S. 702, 102 S.Ct.
2673, 73 L.Ed.2d 327 (1982)). The First and Eleventh Circuits
have endorsed this position. See Boston Shipping Ass'n v. Int'l
Longshoremen's Ass'n, 659 F.2d 1 (1st Cir. 1981); Intern. Broth.
of Elec. Workers v.
United Tel. Co., 738 F.2d 1564 (11th Cir. 1984).
Obviously, the plaintiffs urge this Court to adopt the Fifth
Circuit approach and hold that there exists material factual
identity between the facts giving rise to 1974 award and the
current facts to justify enforcing the 1974 award. The Court
refuses to do so. The Court agrees with the Third Circuit that
unless the Court can say with positive assurance that the prior
award was intended to cover this dispute, it must return the
matter to arbitration. See Consolidated Coal, 666 F.2d at 811. By
the same token, the Court does not deem it necessary to go as far
as the First, Fourth, and Eleventh Circuits in saying that mere
disagreement between the parties as to the effect of the prior
award justifies the submission to arbitration. Clearly, if the
parties agreed as to the effect there would be no need for an
enforcement proceeding such as this one.
With regard to the facts at hand, the Court cannot say with
positive assurance that the 1974 arbitration award was intended
to cover the present dispute. Almost nine years had passed from
the time of the 1974 award to the filing of this lawsuit. In that
period three new collective bargaining agreements were
negotiated. The agreement in effect when the 1974 award was
rendered never mentioned a realignment of the work force
procedure. The 1981 agreement contains a detailed provision on
realignment of the work force. Further, in other arbitration
matters, the arbitrator Sabella refused to follow the 1974 Fisher
award because unlike the 1971 agreement under which the Fisher
award was decided, the 1981 agreement has detailed provisions for
realignment. All of these facts are undisputed by the plaintiffs.
Given these facts, the Court cannot say with positive assurance
that the 1974 award was intended to cover the present dispute,
nor can the Court say that the present facts are materially
identical to the facts addressed in the 1974 award so as to meet
the requirements of the Fifth Circuit's test had this Court
Accordingly, finding that there exists no issue of material
fact and that the defendant is entitled to judgment as a matter
of law, the Court GRANTS the defendant's Motion for Summary
Judgment (Document No. 7) and DENIES the plaintiffs' Motion for
Summary Judgment (Document No. 16). The Court has duly considered
all other arguments and finds them to be without merit. The Clerk
is ordered to enter judgment in favor of the defendant and
against the plaintiffs.
IT IS SO ORDERED.
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