Armstrong-Norwalk Rubber Corp. v. Local Union No. 283

• Citation: 167 F. Supp. 817
• Decision Date: 19 November 1958
• Docket Number: Civ. No. 7507.
• Court: U.S. District Court — District of Connecticut
• Parties: The ARMSTRONG-NORWALK RUBBER CORPORATION, Plaintiff v. LOCAL UNION NO. 283, UNITED RUBBER, CORK, LINOLEUM AND PLASTIC WORKERS OF AMERICA, A.F.L.C.I.O., Defendant.

167 F. Supp. 817

The ARMSTRONG-NORWALK RUBBER CORPORATION, Plaintiff v. LOCAL UNION NO. 283, UNITED RUBBER, CORK, LINOLEUM AND PLASTIC WORKERS OF AMERICA, A.F.L.C.I.O., Defendant.

Civ. No. 7507.

United States District Court D. Connecticut, Civil Division.

November 6, 1958.

As Amended November 19, 1958.

John W. Barclay, Thompson, Weir & Barclay, New Haven, Conn., Edward Schneider, Harold Rosenwald, Boston, Mass., for plaintiff.

Daniel Baker, Stamford, Conn., for defendant.

ANDERSON, District Judge.

The plaintiff employer and the defendant union entered into a collective bargaining agreement on May 23, 1957 which was to remain in effect for two years. It contained a provision whereby either party was given the power to reopen the contract to renegotiate the general wage scale. If, sixty days after notice of the intention to reopen for such purpose, the parties had not satisfactorily concluded their negotiations, the contract was to terminate unless extended by mutual agreement. If it were thus terminated, it was to be reinstated upon satisfactory completion of the negotiations.

On June 2, 1958, the union gave the employer notice of its intention to reopen the agreement to renegotiate the general wage scale. Two weeks later on June 16, the employer discharged one Daniel Clayborne, Jr., who was the union president. The complaint alleges that the discharge was for good cause. The union claimed that the discharge was in violation of the collective bargaining agreement and invoked the grievance procedure provided by the contract. When negotiations on the grievance did not lead to settlement, the union demanded arbitration. By August 5, no action had been taken on the Clayborne discharge.

At that time, the union demanded that the employer reinstate Clayborne without arbitration, and on August 11, 1958, the demand was repeated, coupled with the threat that the union would call a strike if the employer refused. On that date the union did call a strike, which lasted until September 17, 1958, and which substantially stopped production at the employer's plant.

It is the legal consequence of this strike which is the major issue in the present action. The employer has sued to stay arbitration of the Clayborne discharge on the theory that the strike was a repudiation of the no-strike provision of the collective bargaining agreement which forfeited the right of the union to invoke arbitration and freed the employer of any obligation to arbitrate the matter of Clayborne's discharge. The employer concedes that the discharge was arbitrable at the start; but it claims that the union, by resorting to the economic sanction of a strike, waived the right to have the arbitration continue, and in this action moved for a preliminary injunction to stay the arbitration. The union countered with motions to dismiss the action, or alternatively to stay the action pending arbitration. The parties agreed to have the latter motions heard first.

The objections which the defendant raised to Federal jurisdiction in its motion to dismiss cannot be sustained. It is now settled that under Section 301 (a) of the Labor Management Relations Act, 29 U.S.C.A. § 185(a), Federal courts have jurisdiction to determine the obligation of parties to arbitrate disputes under collective bargaining agreements in industries affecting commerce. Textile Workers Union of America v. Lincoln Mills, 1957, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. Lincoln Mills, it is true, was a suit to compel arbitration; but a correlative of the power to compel is the power to refuse to do so. The question in the present case — whether arbitration should be ordered to go forward or stayed — is identical with Lincoln Mills; and it is this which determines jurisdiction rather than what party brings the suit. The case of Mengel Co. v. Nashville Paper Products and Specialty Workers Union, 6 Cir., 1955, 221 F.2d 644, cited by the defendant, was decided before the Lincoln Mills case, and it would probably not be followed by the 2nd Circuit.

The defendant's motion to dismiss also raised a question as to the sufficiency of the complaint. Section 2 of the U. S. Arbitration Act, 9 U.S.C.A., provides:

"A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract."

The defendant contends that since the plaintiff did not revoke the contract, the arbitration provision is still binding under Section 2. In the first place, however, the statute requires only that grounds for revocation exist; it does not, in so many words, require that the contract be revoked. It was argued orally by the plaintiff, and not denied by the defendant, that if the strike was a breach, it was a material breach which would have justified revocation of the entire contract. Furthermore, despite the language of Section 2, it has been held that a party may waive the arbitration clause, either by action or agreement. See, e. g.: Council of Western Electric Technical Employees — National v. Western Electric Co., 2 Cir., 1956, 238 F.2d 892; Kulukundis Shipping Co., S/A v. Amtorg Trading Corp., 2 Cir., 1942, 126 F.2d 978, Annotation, 161 A.L.R. 1426 ff. The cases cited by the defendant for the proposition that, unless the plaintiff alleges that the contract is entirely revoked all its obligations are binding, are therefore not persuasive. The action will not be dismissed for insufficiency of the complaint.

The defendant's motion for stay of the suit requires analysis of the contract between the parties. In its pertinent parts, the Collective Bargaining Agreement provides:

"Article III

"Company Security

"Section 5.

* * * * * *

"(b) Since adequate provisions have been made in this Agreement for settlement of all disputes that may arise between the parties, the Union agrees not to engage, encourage, sanction, or approve any strike, stoppage, slow-down, or other interruption of work during the life of this Agreement. On the contrary, the Union will actively discourage any strike, stoppage, slow-down, or other interruptions of work in violation of the Agreement. The Company agrees that neither it nor its representatives will put into effect any lock-out during the terms of this Agreement.

"Article IV

"Grievance Procedure

"Section 6. Any difference by either the Company or the Union involving the meaning or application of any provision of this Agreement or any claim by either party that the other party is in violation of any provision of this Agreement may constitute a grievance and shall be taken up in the manner hereinafter set forth:

* * * * * *

"Step Five. In the event that any one grievance is not settled through conferences of the Company and Union representatives, it shall, upon written notice by either party to the other party within thirty (30) days after failure to reach a disposition of the grievance in Step Four, be referred to the American Arbitration Association. * * *

"Section 7.

* * * * * *

"(b) If the union disputes a discharge the matter shall be handled through the grievance procedure provided in this Agreement commencing with Step Two. * * *"

Now there is no doubt that the parties intended that the...