FOOD HANDLERS LOCAL 425, ETC. v. Pluss Poultry, Inc., 15995.

• Decision Date: 06 November 1958
• Docket Number: No. 15995.,15995.
• Citation: 260 F.2d 835
• Parties: FOOD HANDLERS LOCAL 425, AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, Appellant, v. PLUSS POULTRY, INCORPORATED, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

260 F.2d 835 (1958)

FOOD HANDLERS LOCAL 425, AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, Appellant, v. PLUSS POULTRY, INCORPORATED, Appellee.

No. 15995.

United States Court of Appeals Eighth Circuit.

November 6, 1958.

Anthony J. Sabella, Memphis, Tenn., for appellant.

Carl D. Hall, Jr., Tulsa, Okl. (C. A. Kothe and Kothe & Hall, Tulsa, Okl., were on the brief), for appellee.

Before SANBORN, WOODROUGH and VOGEL, Circuit Judges.

WOODROUGH, Circuit Judge.

This appeal is taken by the labor union to reverse a summary judgment by which the District Court dismissed the union's action to obtain confirmation and enforcement of an arbitration award. The award was rendered by one Ralph C. Barnhart as arbitrator and agreed to by the president of the union, as union appointed arbitrator, in favor of the union and against the defendant in this action, Pluss Poultry, Inc. The summary judgment was accompanied by the opinion of the District Court which set forth the proceedings and judgment clearly and fully and is reported at 158 F.Supp. 650.

Federal jurisdiction was invoked under the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185(a) and the United States Arbitration Act, 9 U.S.C.A. § 1 et seq. The parties agreed that there was no genuine issue as to any material fact. The question presented for the court to decide, on motions for summary judgment by both parties, was whether Ralph C. Barnhart had jurisdiction to make the arbitration award sought to be enforced in the action.

There was a collective bargaining agreement between the parties which included stipulations for submission to a Board of Arbitrators of any disputes with reference to the proper interpretation or application of any provisions of the agreement that could not be settled in accordance with prescribed grievance procedure. The arbitration stipulations included the following:

"Section C. In the event of any dispute arising between the Company and the Union with reference to the proper interpretation or application of any provisions of this Agreement, and such dispute cannot be resolved by the grievance procedure set forth in Section (B) of this Article IV, it may, at the request of either party, be submitted to a Board of Arbitrators, consisting of one member to be appointed by each of the parties hereto, and a third member to be chosen by the first two members. The party requesting arbitration shall give notice in writing of the fact to the other party, and in such notice shall furnish the name of its arbitrator and the opposing party shall, within twenty-four (24) .., appoint its arbitrator and give notice thereof in writing to the other party. In the event such two arbitrators cannot agree upon the third arbitrator within seventy-two (72) hours after the original request for arbitration, both parties agree to request the Federal Mediation and Conciliation Service to submit a list of five (5) names of arbitrators. The party originally requesting arbitration shall make the request for said list. The Company and the Union shall alternately strike off names from the list until one name remains. The remaining arbitrator on the list shall be appointed the third member of the Board of Arbitration. Such Board of Arbitration shall have authority only to interpret and apply the provisions of this contract. Its award shall be in writing, shall be rendered within five (5) days after the appointment of the last member thereof, and shall be binding upon the Company, the Union and the employees involved in the controversy. The parties hereto shall divide the expense of the third arbitrator."

Disputes arose in respect to "check off" (or dues deduction) and to "job posting" and arbitration of the two disputes was requested by the union and refused by the company. The company claimed that the disputes were not arbitrable and refused to cooperate for arbitration. The union selected its president as an arbitrator and the company refused to make an appointment. The union called upon the Federal Mediation and Conciliation Service to submit a list of names of arbitrators to choose from and it complied but the company refused to choose. Thereupon the Service appointed Mr. Barnhart, referred to above, to arbitrate the disputes and he called a hearing which was attended by the union but not the company. He considered evidence concerning the matters in dispute and made the award, as he stated, "* * * without consultation with the Union member" (who afterwards agreed to it). He declared in his award as to the "check off" dispute that "* * * it is the award of the arbitrator that the Company is obligated to check-off union dues and initiation fees for all employees who had signed authorization cards under the 1956 Agreement"; and as to the "job posting" dispute he stated: "The award is * * * that the grievance is allowed and that the job should be posted * * *".

It is not contended that Mr. Barnhart acted fraudulently and his award covering some seventeen pages indicates on its face that the matters involved were complex and pains were taken in preparing it. But the court observed that the collective bargaining agreement between the parties in this case "* * * discloses no provision which would permit one party to initiate and prosecute to a conclusion an arbitration proceeding without any participation by the other party".

The court considered the cases of Kanmak Mills, Inc., v. Society Brand Hat Company, 8 Cir., 236 F.2d 240,...