Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 C 4700 -- Stanley J. Roszkowski, Judge.
Before CUMMINGS, Chief Judge, BAUER and WOOD, Circuit Judges.
This appeal concerns the arbitrarily of two post-contract grievances. We have examined these grievances in light of the Supreme Court's discussion of post-contract arbitrarily and the facts in Nolde Brothers v. Local No. 358, Bakery & Confectionery Workers Union, 430 U.S. 243, 51 L. Ed. 2d 300, 97 S. Ct. 1067 (1977), and have concluded, with the district court, that these grievances are not arbitrable.
Kennicott is engaged in the wholesale florist business with its main shop and cental office in Chicago and another shop in Aurora, Illinois. The Union, a Teamster Local, represents a number of Kennicott workers.*fn1 Prior to October 1, 1981, Kennicott and the Union had been parties to successive collective-bargaining agreements for over thirty years. On September 21, 1981 their most recent collective-bargaining agreement ("Agreement") expired; however, upon expiration the parties were negotiating a replacement agreement and thus, under the terms of Article Twenty-nine of the Agreement, the Agreement was extended until October 30, 1981 or until the negotiations broke off, whichever came first.*fn2 Negotiations did break off sometime in October or November, 1981 and the parties have neither entered a supplemental agreement to extend the Agreement's life beyond the Article Twenty-nine extension period nor entered a replacement agreement.
On April 19, 1982, between six and seven months after the Article Twenty-nine extension period ended, Kennicott discharged Richard Wagner, a driver in its Aurora shop.*fn3 Sometime subsequent to Wagner's discharge Kennicott granted certain of its employees a 65 cents per hour pay raise retroactive to October 1, 1981. Wagner did not receive this retroactive pay raise for the time he worked prior to discharge.
On April 22, 1981, the Union requested arbitration of Wagner's discharge and, on June 30, 1982, it requested arbitration of Kennicott's failure to give Wagner the retroactive pay increase. Kennicott refused to arbitrate either dispute. The Union brought suit pursuant to section 301 of the Labor Management Relations Act of 1947, 29 U.S.C.A. 185(a) (West 1978), seeking a court order compelling Kennicott to arbitrate under Article Three, the arbitration clause of the expired Agreement.*fn4 Kennicott moved for summary judgment on two grounds: (1) that the Agreement containing the arbitration clause under which the Union sought to arbitrate had expired, and with it Kennicott's obligation to arbitrate disputes; and (2) that Wagner, an employee in the Aurora shop, was never a member of the bargaining unit covered by the expired Agreement which only covered Chicago shop employees.
Relying solely on Kennicott's first ground and without addressing the merits of the second ground Judge Roszkowski held the grievances non-arbitrable and granted Kennicott summary judgment. The Union appealed to this court. We affirm.
The Supreme Court's landmark Nolde Brothers v. Local No. 358, Bakery & Confectionery Workers Union, 430 U.S. 243, 51 L. Ed. 2d 300, 97 S. Ct. 1067 (1977) decision guides our analysis of the arbitrarily of Wagner's two-post contract grievances. The Nolde Court instructed that the ultimate issue in post-contract grievance cases, as in all section 301 suits to compel arbitration, is the intention of the parties regarding arbitrarily, since arbitration is a creature of the collective-bargaining agreement and a party cannot be compelled to arbitrate any matter that he has not agreed to arbitrate. Id. at 250-51. Looking at the broad arbitration clause (providing for arbitration of "all grievances"), the lack of any express language in the contract that the parties intended post-contract disputes to be non-arbitrable, the short time (four days) between the expiration of the contract and the grievance, and the strong federal policy favoring arbitration of labor disputes, the Court found that the parties intended the post-contract severance-pay issue to be arbitrated and accordingly ordered arbitration.*fn5
With the law and facts of Nolde as a guide we now consider the language of the Agreement and the facts surrounding the Union's two grievances to determine whether the parties intended that these post-contract grievances be arbitrated or rather resolved in the courts.
As was true with the Nolde contract, there is no clear indication from the language of this Agreement what the parties intended regarding the arbitrarily of post-contract disputes. The arbitration clause provides for arbitrarily of "all disputes and grievances arising out of the Agreement" (emphasis added); that is somewhat more limited language than the "all grievances" language found in the Nolde arbitration clause. We hesitate, however, to make too much of this distinction because the "arising out of" language does not speak directly to the parties' intention regarding the arbitrarily of post- contract disputes. If the parties intended that no post-contract disputes be arbitrable they could have stated the intention much more clearly, as did the parties in General Warehousemen and Employees Union Local No. 636 v. J.C. Penney Co., 484 F. Supp. 130, 132 n.1 & 138 (W.D. Wis. 1978), where the collective-bargaining agreement provided that only disputes arising "under and during the term" (emphasis added) of the agreement would be arbitrable. We thus conclude that the arbitration clause, although somewhat more limited than in Nolde, does not give a clear indication one way or the other of the parties' intention regarding the arbitrarily of post-contract disputes. But see Rochdale Village, Inc. v. Public Service Employees Union Local No. 80, 605 F.2d 1290, 1295 n.6 (2d Cir. 1979) (distinguishing Nolde on ground that arbitration clause limited arbitration to grievances arising "under" the agreement).
Kennicott also points to language in the expiration clause of the Agreement (Article Twenty-nine) as evidence of the parties' intent to cut off arbitration rights and ...