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DIST. 12, UNITED MINE v. PEABODY COAL CO.

February 1, 1985

DISTRICT 12, UNITED MINE WORKERS OF AMERICA, ET AL., PLAINTIFFS,
v.
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 Cir. 1984).

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
  factual issue.

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 ...

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