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January 17, 1989

SR INDUSTRIES CORP., et al., Defendants

John A. Nordberg, United States District Judge.

The opinion of the court was delivered by: NORDBERG


 This is a declaratory judgment action brought by a union against the former employer of its members, seeking approximately $ 23,800 in vacation pay. The union also asserts that two officers of the corporate defendant, Lewis B. Simon and William T. Morgan, are personally liable for the disputed wages. The defendants now move for summary judgment for lack of subject matter jurisdiction, arguing that the union failed to exhaust contractual dispute resolution procedures before filing suit. However, rather than demand that the union submit to these contractual procedures, the defendants have contended before this Court that the union's previous failure to invoke them constitutes an election of remedies that now makes the contractual procedures unavailable. The Court now denies defendants' motion. Before addressing the merits, the Court will briefly recount how this dispute ended up here.

 The parties agree that on June 27, 1984, Local 473 of the International Association of Bridge, Structural and Ornamental Iron Workers entered into a collective bargaining agreement with SR Industries, an Illinois corporation with its principal place of business in Schaumburg, Ill. Although the contract had a stated expiration date of March 15, 1987, it also contained a clause allowing either party to demand renegotiation of wages by filing written notice not less than sixty nor more than ninety days prior to midnight April 30, 1986. However, this wage reopener clause further provided that if it were invoked and negotiations did not result in a new agreement as to wages prior to midnight April 30, 1986, the collective bargaining agreement would expire.

 As things turned out, the union did invoke the clause, wage negotiations proved fruitless, and the company announced on May 8, 1986, that it would phase out operations. All but a few production and maintenance employees were discharged by the end of the month, and the last of these employees were let go by Dec. 1. The parties agree that in a meeting on December 9, 1986, the union demanded vacation pay for periods worked by its members during 1986. The company disavowed any such obligation and refused the union's demand.

 The union responded three days later by notifying the company that it planned to file suit. It followed through on January 7, 1987, by filing a two-count declaratory judgment action in state court against SR Industries and its officers Simon and Morgan, seeking to ground liability in the Illinois Wage Payment and Collection Act, Ill. Rev. Stat. ch. 48, para. 39m-1 et seq. SR replied with its own declaratory judgment action in federal district court, where Judge Getzendanner ruled that any rights to vacation pay were created by the collective bargaining agreement, and thus the state law wage collection claims were preempted by § 301 of the Taft-Hartley Act, 29 U.S.C. § 185. SR Industries Corp. v. Local No. 473, 1987 U.S. Dist. LEXIS 9015, 87 C 2370 (N.D. Ill. Sept. 24, 1987). *fn1" SR then moved in state court to dismiss the union's complaint. Instead, the state court granted the union leave to file an amended complaint that made reference to Judge Getzendanner's decision. The company promptly removed the action to this Court.

 The company's argument for summary judgment is straightforward. The collective bargaining agreement, which governed the claims for vacation pay, contained a multistep grievance procedure culminating in binding arbitration. The company contends that the union did not invoke that grievance procedure, thus failing to exhaust its contractual remedies and forfeiting federal jurisdiction under § 301. For this argument, the company cites Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985), Clayton v. Automobile Workers, 451 U.S. 679, 686-89, 68 L. Ed. 2d 538, 101 S. Ct. 2088 (1981), and Republic Steel v. Maddox, 379 U.S. 650, 652-53, 13 L. Ed. 2d 580, 85 S. Ct. 614 (1965). *fn2"

 Those cases, however, are distinguishable, since each involved a continuing employment relationship subject to an extant collective bargaining agreement, and the failure of an individual union member to follow contractual dispute resolution procedures or internal union procedures before filing suit. See II C. Morris, The Developing Labor Law, at 1294-1304 (2d ed. 1983). In this case, by contrast, the collective bargaining agreement had expired *fn3" and all of the employees had been terminated before the company unequivocally denied any obligation to pay the disputed wages. Although the company contends that the union should have followed the grievance resolution procedure provided in the contract, the union clearly could not have followed all of the grievance procedures mandated under the contract as written. For example, the initial stage of the procedure requires discussion among the complaining employee, a shop steward and a foreman. But by the time the company and the union had reached loggerheads on the vacation pay issue, there were no longer any employees; hence, there was no shop steward or foreman.

 The Court grants that the exhaustion requirement has been held to apply to the union itself as well as to the union's members, although the defendants did not cite any such cases. See United Slate, Tile & Composition Roofers v. G & M Roofing, 732 F.2d 495 (6th Cir. 1984); National Post Office Mail Handlers v. U.S. Postal Service, 594 F.2d 988 (4th Cir. 1979). The situation in these cases, however, was analogous to the cases involving individual members, since each involved an existing collective bargaining agreement and continuing employment relationship. In short, defendants have not cited a case in which exhaustion was required in circumstances similar to those presented in this case, and the Court is unaware of any.

 The exhaustion requirement is intended to encourage the parties to resort to existing contractual dispute resolution procedures, thus furthering the national labor policy favoring the private resolution of disputes in the context of continuing collective bargaining relationships. See Republic Steel, 379 U.S. at 653 ("Such activity complements the union's status as exclusive bargaining representative by permitting it to participate actively in the continuing administration of the contract."); Clayton, 451 U.S. at 686-87 ("The rule established by Republic Steel was thus intended to protect the integrity of the collective-bargaining process and to further that aspect of national labor policy that encourages private rather than judicial resolution of disputes arising over the interpretation and application of collective-bargaining agreements."). Therefore, the Court doubts that the exhaustion requirement applies when the collective bargaining agreement has expired and all employees have been discharged, since there is no longer an existing bargaining relationship to protect. Accordingly, in the absence of more persuasive authority presented by the defendants' to support their argument, the Court concludes that exhaustion was not required under the circumstances of this case. *fn4"

 Moreover, even assuming that exhaustion were required, the Court concludes that plaintiff sufficiently has demonstrated that resort to contractual procedures would have been futile, thus bringing its behavior within the recognized futility exception to the exhaustion requirement. *fn5" See Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324, 329-330, 21 L. Ed. 2d 519, 89 S. Ct. 548 (1969) ("The exhaustion requirement is subject to a number of exceptions for the variety of situations in which doctrinaire application of the exhaustion rule would defeat the overall purposes of federal labor relations policy.") See also United Slate, Tile & Composition Roofers v. G & M Roofing, 732 F.2d 495, 501 (6th Cir. 1984); National Post Office Mail Handlers v. U.S. Postal Service, 594 F.2d 988, 991 (4th Cir. 1979); Protective Workers v. Ford Motor Co., 223 F.2d 49, 51 (7th Cir. 1955).

 Richard Carlson, the union's business agent, states by affidavit that a May 1986 meeting between himself and management (specifically, defendants Morgan and Simon and Nick T. Sangolis, a company negotiator) resulted in a "verbal agreement" to award vacation pay allegedly accrued up to the date of the employees' termination. See Plaintiff's Exhibit 1. The Union claims this understanding was confirmed in a memorandum to all employees by defendants Morgan and Simon dated May 9, 1986. See Pl. Ex. 4. Carlson then states that he met again with management concerning this issue in June and July 1986, but no payments were made. However, Carlson further attests that the understanding that vacation pay would be made was confirmed by a letter from Sangolis. See Pl. Ex. 5. *fn6"

 Carlson goes on to state that he attempted to invoke the grievance procedure "concerning certain disputes that [the union] had with SR Industries. On or about September 24, 1986, I received a letter from SR Industries, indicating that it would not arbitrate any grievances with Local 473 because the collective bargaining agreement had expired." Pl. Ex. 1. The letter states in relevant part: "The grievance is not arbitrable. All issues raised occurred after the collective bargaining agreement expired by the terms of [the wage reopener clause]." Pl. Ex. 6. On brief, the company explains the letter as follows: "In that letter SR simply stated that the issues raised by that particular grievance (which did not involve vacation pay) occurred after the collective bargaining agreement had expired . . . . SR did not state that it would not arbitrate any grievance with the Union . . . ." Reply, at 5-6. While Carlson's reading of the letter may be too broad, the Court believes that the letter at a minimum may have led a union business agent and the union's members, unschooled in all of the nuances of federal labor law, to conclude that the company would refuse to arbitrate any claims raised by the union after the expiration of the contract. Furthermore, the letter is susceptible to the even broader conclusion that the company had taken the position that the expiration of the agreement freed it from any obligation to submit to the contractual grievance procedures.

 As recounted above, the company discharged the remaining few employees by early December 1986, and denied the union's claim for vacation pay on the ninth of that month. The Court finds that the factual submissions of the parties show a continuing effort by the union prior to that time to negotiate an understanding with the company regarding ...

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