PIANO & MUSICAL INST. WKRS. U., LOCAL 2549 v. WW Kimball Co.

• Decision Date: 13 September 1963
• Docket Number: No. 62 C 1750.,62 C 1750.
• Citation: 221 F. Supp. 461
• Parties: The PIANO AND MUSICAL INSTRUMENT WORKERS UNION, LOCAL NO. 2549 OF the UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, et al., Plaintiffs, v. W. W. KIMBALL COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

221 F. Supp. 461

The PIANO AND MUSICAL INSTRUMENT WORKERS UNION, LOCAL NO. 2549 OF the UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, et al., Plaintiffs, v. W. W. KIMBALL COMPANY, Defendant.

No. 62 C 1750.

United States District Court N. D. Illinois, E. D.

September 13, 1963.

Bernard M. Mamet, Chicago, Ill., for plaintiffs.

Thomas R. Mulroy, Hopkins, Sutter, Owen, Mulroy & Wentz, Chicago, Ill., for defendant.

PARSONS, District Judge.

During that period of time between October 1, 1960, and October 1, 1961, defendant and the plaintiff Union were parties to a collective bargaining agreement covering the wages, hours, and working conditions of Kimball's production and maintenance employees. In August of 1961, Kimball decided to discontinue its Melrose Park, Illinois, operation and to transfer the same to French Lick-West Baden, Indiana. Pursuant to this decision, Kimball began the process of discharging all its employees at Melrose Park. The French Lick Plant began its operation on October 9, 1961, and on that date, nine days after the collective bargaining agreement had "terminated", Kimball began hiring new employees for its French Lick Plant, none of whom had been previously employed at the Melrose Park Plant.

The pertinent provisions of the collective bargaining agreement include the following:

Article III — Section 2:

"6. When re-employment occurs employees will be called back to work in the order of their seniority.

* * * * * *

"9. Employees who are not recalled within two (2) years following a lay-off are deemed to have lost their seniority standing."

Article VIII — Section 1:

"Any difference arising from the interpretation or application of this agreement between the parties hereto, which cannot be settled directly by the parties concerned, will be referred to a board of arbitrators. * * *"

Article XI:

"It is understood that this agreement shall continue to be in full force and effect from 12 noon, October 1, 1960, to October 1, 1961. * * *"

Plaintiffs filed a complaint on September 14, 1962, charging that defendant breached its collective bargaining agreement by refusing to hire at Kimball's plant in French Lick those employees laid off when Kimball's plant in Melrose Park was closed down.

In Count I of the complaint, the Union alleges that Kimball's refusal to hire and to grant vacation pay to certain employees created arbitrable disputes under the collective bargaining agreement and the Union demands that Kimball be compelled to submit the alleged disputes to arbitration. In Count II, the Union and the individual plaintiffs representing a class seek to obtain vacation pay for former Melrose Park employees and damages for wages allegedly lost because of Kimball's refusal to rehire the former Melrose Park employees at the French Lick Plant. And, in Count III, the Union seeks damages for membership dues allegedly lost as a result of the same refusal to rehire.

Insofar as Counts I and II seek vacation pay, the same have been dismissed pursuant to a stipulation of the parties filed on May 28, 1963. Consequently, all three counts are narrowed to the claim that defendant breached the collective bargaining agreement by failing to rehire the former Melrose Park employees at the French Lick Plant.

Plaintiffs have filed, as to Count I, a motion for judgment on the pleadings, which has been taken as a motion for summary judgment, and defendant has filed a motion for summary judgment as to all three counts.

It appearing that this Court has jurisdiction and that there is no genuine issue as to any material fact, the Court may thus proceed to rule upon the respective motions and issues of law thereby presented. The basic issue simply is whether or not there is any arbitrable dispute or difference arising from the interpretation or application of the collective bargaining agreement here involved.

There is no doubt that there is a "difference" between the plaintiffs and the defendant arising from the interpretation or application of Article III, Section 2, Paragraph 6, of the collective bargaining agreement. Defendant contends, however, that this difference is neither arbitrable nor reviewable in the courts because the hirings at the French Lick Plant on October 9, 1961, which gave rise to the dispute, did not occur until after the agreement "terminated" on October 1, 1961. Consequently, it is argued, the agreement, including the seniority and arbitration provisions, was not then and is not now enforceable under the facts of this case.

It must be noted at this point that the arbitration provision in the agreement is extremely broad. It speaks not of "disputes" but of "differences", and it embraces "any" difference. Thus, assuming no "dispute" arose until the time Kimball hired new employees at its new plant, is it not true, nevertheless, that "differences" concerning the interpretation or application of Article III, Section 2, Paragraph 6, had already arisen prior to the termination of the agreement? This, at least implicitly, is what Paragraph 9 of Count I alleges, and this, it would seem, is sufficient to bring into operation even at this late date (see Procter & Gamble Independent Union of Port Ivory, N. Y. v. Procter & Gamble Mfg. Co., 2 Cir., 312 F.2d 181) the broad language of the arbitration clause.

Paragraph 9 of Count I, however, alleges that the plaintiff Union and the defendant met on two occasions to "discuss and consider their differences of opinion concerning the interpretation or application of the existing collective bargaining agreement as it affected the rights of the laid off employees." Due to the nature of the allegation, a denial thereof would not place in issue the existence of a "difference", but merely the existence of a meeting. Thus, because of the lack of clarity of Paragraph 9 in pleading the existence of an arbitrable "difference", it will be assumed that no "difference" did in fact arise until October 9, 1961, when the new hirings occurred.

But even when making this assumption, it would appear that this Court, under the agreement, should order this cause to arbitration, if not as to the differences concerning the new hirings at the French Lick Plant, then on the question of whether or not this particular difference is arbitrable in the first instance. The language of the arbitration clause is so inclusive that it even seems to contemplate arbitration of the question of arbitration.

Under Article VIII, a difference of opinion as to whether something is arbitrable is itself a "difference" arising under the agreement which should be arbitrated. More specifically, the arbitrability of the "difference" arising from the interpretation or application of Article VIII, the arbitration provision, as well as Articles III and XI involving seniority rights and the duration of the agreement, is an arbitrable "difference" under the terms of the agreement. It seems apparent that the parties have agreed to submit even this question of contract interpretation to the arbitrator.

Plaintiffs claim that the defendant has refused to arbitrate. This claim, on its face, is governed by the contract, and in particular the arbitration clause. While Article XI, at first glance, would appear to terminate the entire contract as of October 1, 1961, such a result is not at...