INTERNATIONAL CHEM. WKRS. U. v. Olin Mathieson Chem. Corp.

• Decision Date: 07 February 1962
• Docket Number: No. 2980.,2980.
• Citation: 202 F. Supp. 363
• Parties: INTERNATIONAL CHEMICAL WORKERS UNION, LOCAL #6, Plaintiff, v. OLIN MATHIESON CHEMICAL CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of Illinois

202 F. Supp. 363

INTERNATIONAL CHEMICAL WORKERS UNION, LOCAL #6, Plaintiff, v. OLIN MATHIESON CHEMICAL CORPORATION, Defendant.

No. 2980.

United States District Court S. D. Illinois, S. D.

February 7, 1962.

Merle C. Bassett, of Cox, Smith & Bassett, Wood River, Ill., for plaintiff.

William M. Howard, of Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., and Russell R. Casteel, E. Alton, Ill., for defendant.

POOS, District Judge.

This is an action by International Chemical Workers Union, Local #6, Plaintiff, against Olin Mathieson Chemical Corporation, Defendant, for breach of a collective bargaining agreement. Defendant filed its answer, and thereafter, filed a motion for summary judgment pursuant to Rule 56, Fed.Rules of Civ.Proc. (28 U.S.C.). Attached to said motion was an affidavit, together with certified copies of two decisions of the National Labor Relations Board. Plaintiff then filed a "Motion In Opposition To Defendant's Motion For Summary Judgment" and submitted a copy of another order of the National Labor Relations Board.

Oral argument on the motion was conducted before this Court on January 4, 1962. For the purposes of decision on this motion, the Court finds the following facts based on the pleadings and affidavits heretofore submitted:

FINDINGS OF FACT

1. Plaintiff has been certified by the National Labor Relations Board as the exclusive bargaining agent for certain persons employed by Defendant.

2. District No. 9, International Association of Machinists (not a party to this action), has been certified by the National Labor Relations Board as the exclusive bargaining agent of certain other persons employed by Defendant.

3. On January 25, 1961, Defendant commenced to perform certain "pyrotechnic" work in the Detonator Department of its manufacturing plant at East Alton, Illinois.

4. Employees who were represented by District No. 9, International Association of Machinists, were assigned by Defendant to perform said work.

5. Pursuant to the provisions of the collective bargaining agreement between Plaintiff and Defendant dated December 1, 1958, Plaintiff filed a written grievance with Defendant alleging, inter alia, that Defendant was required to assign employees represented by Plaintiff to perform this "pyrotechnic" work.

6. The collective bargaining agreement (hereinafter called "The Agreement") entered into between Plaintiff and Defendant dated December 1, 1958 defines a grievance as follows (Part B, page 12):

"Section 1. A grievance is any dispute or difference of opinion between the Company and an Employee regarding the application and interpretation of this Agreement."

Part C of The Agreement provides, inter alia, that grievances that cannot be resolved by agreement between the parties shall be submitted to an arbitrator for a binding decision to be rendered thereon.

7. Defendant refused to assign employees who were members of Plaintiff to do the said pyrotechnic work and further advised Plaintiff that it was not willing to process the matter as a grievance, because it did not involve either application or interpretation of The Agreement. Pursuant to Part C of said The Agreement, Plaintiff requested the Defendant to arbitrate the matter, but Defendant refused to submit the said matter to arbitration.

8. The matter which the Plaintiff sought to arbitrate was the question of whether, by failing to assign employees represented by Plaintiff to do the said "pyrotechnic" work, Defendant breached an agreement containing the following provision:

"3. As to new operations at the East Alton plant, the Company shall recognize the International Chemical Workers' Union, Local #6, as bargaining representative for Employees engaged in the manufacture of explosives or other chemicals, in research work in those fields and in other related chemical processing operations."

9. On June 21, 1961 (after the Complaint herein was filed) Defendant filed a motion to clarify the certification of District No. 9, International Association of Machinists, in Case No. R-4688 before the National Labor Relations Board. Therein, Defendant requested a decision that employees engaged in the production of the said "pyrotechnics" were properly included within the collective bargaining unit for which the said District No. 9, International Association of Machinists, was certified. At the date of the hearing on the Motion For Summary Judgment herein, the National Labor Relations Board assumed jurisdiction, but had not yet rendered the final decision on Defendant's motion to clarify the certification.

DISCUSSION

The sole issue before the Court on this Motion is the validity and enforceability of the provision of the agreement between Plaintiff and Defendant set out in paragraph 8 above. As construed by Plaintiff, such provision would constitute an agreement to recognize a fabor organization as a collective bargaining representative of employees who will be performing work in an operation that is not commenced at the time of execution of the agreement or to which employees have not been assigned. Defendant contends that such a provision is unenforceable. The basis for Defendant's contention is that such an agreement invades the exclusive jurisdiction of the National Labor Relations Board to determine the unit appropriate for collective bargaining purposes.

The National Labor Relations Act, as amended, provides, in part, as follows (29 U.S.C.A. § 159):

"(a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment * * *."

The Act further grants the Board the following jurisdiction (29 U.S.C.A. § 159):

"(b) The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof * * *."

It has been universally held that the jurisdiction of the National Labor Relations Board to determine the unit appropriate for collective bargaining purposes and settle questions of representation is exclusive. United States District Courts have no jurisdiction to settle questions of employee representation, nor do they, under ordinary circumstances, have the power to issue orders which would either directly of collaterally review the appropriateness of bargaining unit determinations made by the National Labor Relations Board. May Department Stores v. N. L. R. B., 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145 (1945); Pittsburgh Plate Glass Company v. N. L. R. B., 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251 (1941); San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); Reilly v. Millis, 52 F.Supp. 172 (D.C.D.C. 1943) aff. 79 U.S.App.D.C. 171, 144 F.2d 259 (1944), cert. den. 325 U.S. 879, 65 S.Ct. 1566, 89 L.Ed. 1995 (1945); Brown v. Pacific Telephone & Telegraph Company, 218 F.2d 542 (9th Cir., 1954); California Association of Employers v. Building and Construction Trades Council, 178 F.2d 175 (9th Cir., 1949); Fur Workers' Union, Local #72 v. Fur Workers' Union, No. 21238, 70 App.D.C. 122, 105 F.2d 1 (D.C.Cir., 1939) aff. 308 U.S. 522, 60 S.Ct. 78, 84 L.Ed. 453 (1939); Linde Air Products Co. v. Johnson, 77 F.Supp. 656 (D.Minn.1948); United Office and Professional Workers of America v. Smiley, 77 F.Supp. 659 (M.D.Pa. 1948); and Donnelly Garment Company v. International Ladies Garment Workers' Union, 23 F.Supp. 998 (W.D.Mo. 1938).

It has also been held that this exclusive jurisdiction which is vested in the National Labor Relations Board cannot be ousted or impaired by agreement between the parties as to what constitutes an appropriate bargaining unit, nor can it be ousted by agreement as to the use of a different method for determining the appropriateness of a bargaining unit. Lund v. Woodenware Workers Union, 19 F.Supp. 607 (D.Minn.1937); N. L. R. B. v. Deutsch Company, 265 F.2d 473 (9th Cir., 1959); International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers v. International Union of United Brewery, Flour, Cereal and Soft Drink Workers of America, 106 F.2d 871 (9th Cir., 1939); Brown v. Roofers and Waterproofers Union, Local No. 40, 86 F.Supp. 50 (N.D.Calif.1949); Wilson Employees Representation Plan v. Wilson & Company, 53 F.Supp. 23 (S.D.Calif.1943) and N. L. R. B. v. Star Publishing Company, 97 F.2d 465 (9th Cir., 1938).

Two cases have been cited which are particularly applicable to the question presently before the Court. In Local 1357, Retail Clerks International Association v. Food Fair Stores, Inc., 202 F.Supp. 322 (E.D.Pa.1961—), the plaintiff requested defendant to arbitrate a question of the coverage of a collective bargaining contract as to a certain group of employees. Defendant refused the request to arbitrate and an action was instituted seeking to compel defendant to submit the issue to arbitration. In refusing to compel the defendant to submit the matter to arbitration, the court stated as follows (42 L.C. at p. 24,465):

"For those articles concern matters which are within the jurisdiction of The National Labor Relations Board. See In re American Busline, Inc., 151 F.Supp. 877, 883-885 32 L.C. ¶ 70,772. (D.C.Neb. 1957). Such matters cannot be ultimately decided through grievance resolving proceduring of a collective bargaining agreement where the rights of third persons, not parties to the agreement, are involved. Therefore, the relief requested by plaintiff cannot be granted by this Court."

The second case that is particularly applicable to the case at bar is Portland Web Pressmen's Union, Local No. 17 v. Oregonian Publishing Company, 286 F.2d 4 (9th Cir., ...