Central Motor Exp., Inc. v. GENERAL DRIVERS, ETC.

• Decision Date: 16 June 1975
• Docket Number: Civ. A. No. C 75-0034 L(A).
• Parties: CENTRAL MOTOR EXPRESS, INC., Plaintiff, v. GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION NO. 89, Defendant.
• Court: U.S. District Court — Western District of Kentucky

407 F. Supp. 1217

CENTRAL MOTOR EXPRESS, INC., Plaintiff, v. GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION NO. 89, Defendant.

Civ. A. No. C 75-0034 L(A).

United States District Court, W. D. Kentucky, Louisville Division.

June 16, 1975.

W. Bruce Baird, Matthew R. Westfall, Joseph H. Terry, Middleton, Reutlinger & Baird, Louisville, Ky., Phil Allen Bertram, Campbellsville, Ky., for plaintiff.

Ralph H. Logan, Louisville, Ky., for defendant.

MEMORANDUM OPINION

ALLEN, District Judge.

This action is submitted to the Court on the motions of the defendant to dissolve the temporary restraining order, to dismiss the complaint and to enter summary judgment on an award made by the Joint Committee sitting in arbitration. There is also pending the motion of 27 employees of the plaintiff located in Campbellsville, Kentucky who seek to intervene in this action. The parties have exhaustively briefed the questions raised by the motions and they have also presented oral arguments to the Court.

On January 31, 1975, plaintiff filed this action, pursuant to 29 U.S.C. § 185. The complaint alleged that an unauthorized work stoppage and picketing by the defendant in violation of a nonstrike clause contained in Article 4 of the Collective Bargaining Agreement by the named parties had occurred. Injunctive relief was sought prohibiting the continuation of the work stoppage and the picketing of plaintiff's Louisville terminal by the union. On February 3, 1975, the Court entered its temporary restraining order enjoining the strike and picketing, conditioned upon plaintiff submitting to the grievance procedure set out in Article 8 of the Collective Bargaining Agreement in regards to any controversy as to the illegal work stoppage and picketing at the Louisville terminal.

On March 21, 1975, the Court entered its order continuing in effect the temporary restraining order of February 3rd until a final and binding adjudication of two grievances was effected. The order was agreed to by both sides and provided that either party could apply for enforcement of any final decision reached by the applicable arbitration authorities.

The first of the two grievances referred to in the March 21st order was filed by the defendant against the plaintiff contending that the plaintiff had violated Article 2, Section 3 of the Collective Bargaining Agreement and requesting a ruling as to the duty to be covered by the Joint Area Committee for city drivers, dock men and over-the-road drivers, some of whom were owner-operators.

The grievance filed by the defendant further specified that a majority of the employers of the plaintiff at its Campbellsville, Kentucky terminal had signed authorization cards to Local 89. The grievance alleged also that Article 2, Section 3, was in effect on January 20, 1975 and that on April 3, 1974 the defendant had signed an agreement for two over-the-road drivers at Campbellsville, who drive from Campbellsville to Louisville only.

Plaintiff's grievance was filed against the acts of Local 89, and striking and picketing its Louisville terminal from January 27, 1970 and thereafter. Damages were requested for the alleged violation of the union.

The Joint Committee which, by terms of the Collective Bargaining Agreement, has the final say in grievances between the parties resolved the issues in favor of the defendant. The ruling on the first grievance states that the company has violated Article 2, Section 3 by failing to recognize the union as collective bargaining agent for the local and over-the-road drivers employed by it at Campbellsville.

The decision as to the grievance filed by the plaintiff simply recites that the company has not substantiated the alleged violation of Article 45 or other Articles, and its claim is denied.

Plaintiff, on March 7, 1975, filed representation petitions with the National Labor Relations Board for separate bargaining arrangements of local intrastate drivers and over-the-road interstate drivers. These petitions are still pending before the N.L.R.B.

On April 23, 1975, 27 of the 33 employees of the plaintiff at Campbellsville moved the Court to intervene. Each of the potential intervenors signed a statement entitled "To Whom It May Concern" reciting that he did not want the defendant to represent him and that when he signed a card for the union, facts were represented which were untrue.

Ordinarily when the grievance procedures have been exhausted the Court has nothing left to do but enforce the provisions of the grievance award. See Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); United Steelworkers of America v. American Manufacturing Company, 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corporation, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). However, plaintiff has raised two objections to enforcement here which warrant serious consideration.

The first objection is based on the theory that the Grievance Committee, with reference to the first grievance, has failed to enter an award which is capable of being enforced. The first case relied upon by plaintiff is United Steelworkers v. Timken Roller Bearing Company, 324 F.2d 738 (6th Cir. 1963) which, on analysis, reveals that the arbitrator's award was ambiguous and, therefore, the action was remanded to him in order that he might make a decision clarifying the manner and scope of his original award. That case is not applicable here, since the decision of the Committee is not ambiguous.

However, in International Longshoremen's Association, Local 1291 v. Philadelphia Marine Trade Association, 389 U.S. 64, 67, 88 S.Ct. 201, 203, 19 L.Ed.2d 236, 240 (1967), the Supreme Court held that the arbitrator's award, which is set out herein below, contains only an abstract conclusion of law and not an operative command capable of enforcement.

"The contention of the Employer, the Philadelphia Marine Trade Association, is hereby sustained and it is the Arbitrator's determination that Section 10(6) of the Memorandum of Settlement dated February 11, 1965, providing gangs `ordered for an 8 AM start Monday through Friday can be set back at 7:30 AM on the day of work to commence at 1 PM, at which time a 4 hour guarantee shall apply. A 1 hour guarantee shall apply for the morning period unless employed during the morning period,' may be invoked by the Employer without qualification.

"The contention of the Union, the International Longshoremen's Association, Local No. 1291, that Section 10(6) of the Memorandum of Settlement dated February 11, 1965, referred to above, can only be invoked by the Employer because of non-arrival of a vessel in port, is denied."

In Hanford Atomic Metal Trades Council v. General Electric Company, 353 F.2d 302 (9th Cir. 1966), the question was whether or not the original arbitration award was ambiguous and needed clarification. As the Court has previously noted, the opinion of the Joint Committee is not ambiguous, but the further observation must be made that it does not prescribe the remedy for the violation found by it to have been committed by the plaintiff. The decision, while cryptic, however, seems to meet the requirement of sufficient clarity to be enforcible and fulfill the requirements of the mandatory grievance procedures contained in the Collective Bargaining Agreement. See Boire v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 479 F.2d 778 (5th Cir. 1973) at p. 783, and also Pilot Freight Carriers, Inc. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 353 F.Supp. 869 (M.D.N.C. 1972). Even if this Court is in error in this finding, it would be a relatively simple matter to remand the award to the Joint Committee for further amplification and specific directions to the parties.

The second noteworthy point made by the plaintiff is that no order enforcing an award of an arbitrator or a grievance committee should be entered while there is pending before the N.L.R.B. matters involving representation of employees. The plaintiff relies primarily on the case of Boire v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, supra. In that case, Pilot Freight Carriers, Inc. was the signatory to a nation-wide collective bargaining agreement with the appellant union. The bargaining agreement provided for representation by the union, except where the employees were members of another union or had not designated a union as their collective bargaining agent. The agreement also provided that it applied to all newly established or acquired terminals,...