Builders Ass'n of Kansas City v. Greater Kansas City Lab. DC

• Decision Date: 28 February 1964
• Docket Number: No. 17403.,17403.
• Citation: 326 F.2d 867
• Parties: BUILDERS ASSOCIATION OF KANSAS CITY, Appellant, v. GREATER KANSAS CITY LABORERS DISTRICT COUNCIL OF the INTERNATIONAL HOD CARRIERS BUILDING AND COMMON LABORERS UNION OF AMERICA OF GREATER KANSAS CITY AND VICINITY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

326 F.2d 867 (1964)

BUILDERS ASSOCIATION OF KANSAS CITY, Appellant, v. GREATER KANSAS CITY LABORERS DISTRICT COUNCIL OF the INTERNATIONAL HOD CARRIERS BUILDING AND COMMON LABORERS UNION OF AMERICA OF GREATER KANSAS CITY AND VICINITY, Appellee.

No. 17403.

United States Court of Appeals Eighth Circuit.

January 23, 1964.

Rehearing Denied February 28, 1964.

Harry L. Browne, Kansas City, Mo., made argument for appellant and filed brief with Howard F. Sachs, Stanford C. Madden, Kansas City, Mo., and counsel Spencer, Fane, Britt & Browne, Kansas City, Mo.

John Manning, Kansas City, Mo., made argument for appellee and filed brief with Robert S. Fousek, Kansas City, Mo.

Before SANBORN, VOGEL and BLACKMUN, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal by the defendant, Builders Association of Kansas City,¹ from a summary judgment for the plaintiff (appellee)² in an action brought by it under § 301(a) of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185(a), to enforce arbitration of a dispute arising out of a collective bargaining agreement.

The agreement contains the following provisions:

"ARTICLE IX — ARBITRATION.

"There shall be no stoppage of work on account of any differences which may occur between a member or members of the Association and the Union. If the matter cannot be adjusted between the parties involved, it shall be taken up between a representative of the Union, and a representative of the Association. If then the matter cannot be settled satisfactorily, it shall be immediately referred to an Arbitration Board consisting of three members appointed by the Association and three members appointed by the Union. These six men shall have authority to choose a neutral third party who shall act as arbiter and the decision of the arbiter shall be final and binding upon both parties and must be in writing."

"ARTICLE VI — HEALTH AND WELFARE.

"Effective April 1, 1962, ten cents (10¢) per hour for all classifications shall be paid by employers into a health and welfare insurance program in accordance with a Trust Agreement to be agreed upon between the parties.

"At the time of the establishment of such Health & Welfare Plan, provisions may be inserted in this Agreement to authorize suit for the collection of any delinquent accounts owing to such Health & Welfare Fund."

The claim stated in the complaint was, in substance, that the parties, who are subject to the Act, had been unable to agree upon a trust agreement as provided by Article VI of the collective bargaining agreement, and that the defendant had declined the plaintiff's requests to arbitrate the dispute.

The factual and legal basis for the conclusion that the plaintiff was entitled to summary judgment to compel the defendant to arbitrate the dispute has been thoroughly and exhaustively covered by Judge Oliver in his two opinions reported in D.C.Mo., 213 F.Supp. 429 and D.C. Mo., 217 F.Supp. 1. We shall avoid useless repetition.

The defendant asserts that the District Court erred: (1) in ordering arbitration of a nonarbitrable dispute having to do with the creation of a new agreement; (2) in ruling that the parties had agreed to arbitrate such a dispute, (a) because the record shows that they did not so agree, and (b) because there were material issues of fact relating to the intent of a parties which precluded the entry of summary judgment; (3) in ruling that the plaintiff had standing to bring the action; and (4) in failing to apply the equitable "unclean hands" doctrine to the plaintiff's claim.

It seems to us, as it did to Judge Oliver, that implications to be drawn from the decisions of the Supreme Court in United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424; Drake Bakeries, Inc., v. Local 50, American Bakery & Confectionery Workers International, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474; and Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462, not only justified but required the entry of the judgment under review. Undoubtedly the parties to the collective bargaining agreement could have excluded from the arbitration clause any and all disputes arising under Article VI, but they did not do so. The Supreme Court in United Steelworkers of American v. Warrior & Gulf Navigation Co., supra, pages 581, 584, 585 of 363 U.S., pages 1352, 1353, 1354 of 80 S.Ct., 4 L.Ed.2d 1409, made the following statements:

"Apart from matters that the parties specifically exclude, all of the questions on which the parties disagree must * * * come within the scope of the grievance and arbitration provisions of the collective agreement. The grievance procedure is, in other words, a part of the continuous collective bargaining process. It, rather than a strike, is the terminal point of a disagreement.

* * * * * *

"* * * In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad. * * *

* * * * * *

"The judiciary sits in these cases to bring into operation an arbitral process which substitutes a regime of peaceful settlement for the older regime of

...