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LOCAL 106 SEIU v. EVERGREEN CEMETERY

March 14, 1989

LOCAL 106 SERVICE EMPLOYEES INTERNATIONAL UNION AFL-CIO, Plaintiffs,
v.
EVERGREEN CEMETERY, Defendant


James B. Moran, United States District Judge.


The opinion of the court was delivered by: MORAN

JAMES B. MORAN, UNITED STATES DISTRICT JUDGE

 Plaintiff Local 106 Service Employees International Union AFL-CIO brings this action against defendant Evergreen Cemetery under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1982), seeking an order directing defendant to submit certain grievances to arbitration. This matter is before this court on the parties' cross motions for summary judgment. Although the parties agree on the relevant facts, they disagree as to their proper interpretation; specifically, the interpretation of the collective bargaining agreement. For the following reasons, we conclude that the grievances should be arbitrated and therefore grant summary judgment for plaintiff.

 FACTS

 The facts of the dispute are relatively uncomplicated. Defendant operates a cemetery located in Evergreen Park, Illinois, and plaintiff, a union, represents defendant's employees. Plaintiff and defendant are parties to a collective bargaining agreement which provides for mandatory arbitration of certain grievances. Plaintiff has demanded arbitration of two unrelated grievances: (1) whether an employee designated as a superintendent and not covered by the collective bargaining agreement can be assigned to do production work ("grievance #1), and (2) whether the employer having designated a person as a working foreman is obligated to fill that position ("grievance #2). Defendant's contention is that the arbitration provision of the collective bargaining agreement does not cover these disputes.

 DISCUSSION

 In AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 89 L. Ed. 2d 648, 106 S. Ct. 1415 (1986), the Supreme Court reiterated the four principles of the Steelworkers Trilogy1 which govern the arbitrability of grievances under collective bargaining. The first and most fundamental principle is that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Id. at 648 (quoting Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960)). The second principle is that it is for the court to determine whether there is a duty to arbitrate a dispute. The third principle is that courts should not determine the merits of the underlying grievance, even if it appears that they are frivolous. The fourth and final principle is that in contracts with an arbitration clause there is a presumption of arbitrability "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." Id. 475 U.S. at 650.

 The sole issue before this court is whether the parties agreed to arbitrate the asserted grievances. Article XIII defines "grievance" as "a claim or dispute concerning rates of pay, hours, or working conditions, or the interpretation or an application of the terms of this agreement" (cplt., exh. A, at 16). Under such a broad arbitration clause, and in the absence of a specific provision excluding a particular grievance from arbitration, "only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail." AT&T, 475 U.S. at 650.

 Grievance #1

 Grievance #1 concerns the type of work to which a supervisor not covered by the collective bargaining agreement can be assigned. Defendant maintains that the agreement does not prohibit the assignment of production work to supervisors or to individuals who have been promoted out of the coverage of the agreement. Moreover, defendant argues that Article X of the agreement implicitly allows him to assign supervisors to do production work. In pertinent part this provision reads:

 
Any employee now covered by this contract who hereafter shall receive a promotion to a position which is excluded from this contract shall nevertheless be required to maintain his good standing in the Union if, in his promoted position, he performs work done by unit employees in the cemetery or is classed as a working foreman.

 (Cplt. exh. A, at 12).

 Article X appears to preserve the union's jurisdiction over production workers, even when those workers are promoted to supervisory positions, and there may be considerable merit to the contention that it implicitly authorized production work by supervisory employees. But that is not a decision to be made by this court. It seems, therefore, to impose an obligation on the employer, as a party to the agreement, respecting labor assignments to persons no longer covered by the agreement. Whether plaintiff's grievance has merit is not an issue before us, but is instead one for the arbitrator. That defendant is in effect arguing that a proper interpretation of this ...


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