Jones Dairy Farm v. Local No. P-1236, United Food and Commercial Workers Intern. Union, AFL-CIO
| Decision Date | 24 April 1985 |
| Docket Number | D,AFL-CI,UNITED,No. 84-1301,P-1236,84-1301 |
| Citation | 760 F.2d 173 |
| Parties | 119 L.R.R.M. (BNA) 2185, 102 Lab.Cas. P 11,470 JONES DAIRY FARM, Plaintiff-Appellee, v. LOCAL NO.FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION,efendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Kenneth R. Loebel, Habush, Habush & Davis, S.C., Milwaukee, Wis., for plaintiff-appellee.
Herbert P. Wiedemann, Foley & Lardner, Milwaukee, Wis., for defendant-appellant.
Before WOOD and POSNER, Circuit Judges, and DUMBAULD, Senior District Judge. *
The collective bargaining agreement between Jones Dairy Farm and a local of the food workers union contained the following clause: "With respect to the subcontracting of work, and the performance of work at this plant rather than elsewhere, each party retains its legal rights as in effect prior to the execution of this Agreement, and nothing in this Agreement shall be construed as adding to or subtracting from those rights." Jones Dairy Farm wanted to contract out some janitorial work currently being performed at the plant by employees represented by the union; and after giving the union notice and an opportunity to bargain over the question, Jones Dairy Farm went ahead and contracted out the work. The union filed a grievance. The arbitrator interpreted the collective bargaining agreement to forbid the company to contract out the work, and the company brought this suit under 29 U.S.C. Sec. 185 to set aside the arbitration award. The district court set it aside, the union appealed, and in a split decision this panel affirmed the district court. 755 F.2d 583 (7th Cir.1985). The company has petitioned for rehearing.
The arbitrator's decision in favor of the union was based on his interpretation of a decision by the National Labor Relations Board, Milwaukee Spring Division, 265 N.L.R.B. 206 (1982), which was repudiated by the Board on reconsideration. Milwaukee Spring Division, 268 N.L.R.B. 601 (1984). Our previous opinions revolved around the question whether and how grievously the arbitrator had erred in deciding a legal question (the parties' "legal rights ... in effect prior to the execution of this Agreement") and whether such error made the arbitrator's award unenforceable. We now think the appeal should be decided differently, and vacate our previous decision.
The company's basic argument is that the intention of the contracting-out clause was to give it a legal right to contract out any work now performed at the plant, and that the arbitrator had no authority to interpret the clause as giving the union a right to prevent contracting out. The arbitration clause of the collective bargaining agreement states that This does appear to put beyond the arbitrator's power the determination of rights not conferred by the agreement itself. And the first Milwaukee Spring decision, on which the arbitrator relied, seems irrelevant. It was a case where the collective bargaining agreement said nothing about contracting out, so that the issue was the parties' rights when the agreement is silent--not, as in this case, when a clause in the agreement appears to make contracting out a prerogative of management.
But we do not understand therefore why the company consented to arbitrate this dispute. If it is right, there is no basis in the contracting-out clause, the arbitration clause, or anything else in the collective bargaining agreement for arbitrating this dispute. Cf. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 584-85, 80 S.Ct. 1347, 1353-54, 4 L.Ed.2d 1409 (1960). It is as if the union had said, we want the arbitrator to decide whether the president of Jones Dairy Farm should be allowed to use a nondairy creamer in his coffee.
The company could therefore have refused to arbitrate; and if the union had sued it, the court would have decided whether the company had to arbitrate this particular dispute--at least if the question could be answered without entangling the court in the merits of the dispute sought to be arbitrated. This qualification is taken very seriously in this circuit, see, e.g., Communications Workers v. Western Elec. Co., 751 F.2d 203, 205-07 (7th Cir.1984), and maybe would come into play here, as hinted in Associated Milk Dealers, Inc. v. Milk Drivers Union, Local 753, 422 F.2d 546, 552 (7th Cir.1970). It is desirable to put as much of the case as possible to the arbitrator, and not encourage parties to go to court before the arbitration can begin. But that is not an issue we need decide. If the question of arbitrability was itself arbitrable, all that would mean is that it would have to be presented to the arbitrator. It would still be an issue. But Jones Dairy Farm did not make it an issue. It did not, while agreeing to participate in the arbitration, challenge the arbitrator's jurisdiction, and make clear that it was preserving its challenge for eventual presentation to a court if the arbitrator ruled in the union's favor, as in Wilkes-Barre Publishing Co. v. Newspaper Guild of Wilkes-Barre, Local 120, 647 F.2d 372, 382 (3d Cir.1981). See Gorman, Basic Text on Labor Law 587 (1976). The company never questioned the arbitrator's authority.
If a party voluntarily and unreservedly submits an issue to arbitration, he cannot later argue that the arbitrator had no authority to resolve it. Fortune, Alsweet & Eldridge, Inc. v. Daniel, 724 F.2d 1355, 1357 (9th Cir.1983) (per curiam); Piggly Wiggly Operators' Warehouse, Inc. v Piggly Wiggly Operators' Warehouse Independent Truck Drivers Union, Local No. 1, 611 F.2d 580, 584 (5th Cir.1980); International Brotherhood of Teamsters, Local Union No. 117 v. Washington Employers, Inc., 557 F.2d 1345, 1349-50 (9th Cir.1977); Ficek v. Southern...
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