INTERNATIONAL U. OF OP. ENG.,# 139 v. Carl A. Morse, Inc.

• Decision Date: 13 January 1975
• Docket Number: No. 74 C 235.,74 C 235.
• Citation: 387 F. Supp. 153
• Parties: INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 139 v. CARL A. MORSE, INC.
• Court: U.S. District Court — Eastern District of Wisconsin

387 F. Supp. 153

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 139 v. CARL A. MORSE, INC.

No. 74 C 235.

United States District Court, E. D. Wisconsin, Milwaukee Division.

December 19, 1974.

On Motion to Reconsider, January 13, 1975.

Thomas P. Krukowski, Goldberg, Previant & Uelmen, Milwaukee, Wis., for plaintiff.

Victor M. Harding, Whyte, Hirschboeck, Minahan, Harding & Harland, Milwaukee, Wis., for defendant.

MEMORANDUM AND ORDER

WARREN, District Judge.

This case represents one aspect of a continuing effort on the part of the International Union of Operating Engineers, Local Union No. 139 (hereinafter "the Union") to compel an employer, Carl A. Morse, Inc. (hereinafter Morse) to enter into arbitration in regard to a labor dispute dealing with a building project that the defendants have commenced at Wausau, Wisconsin. The dispute is alleged to fall within the provisions of a collective bargaining agreement which was, in fact, executed on March 25, 1974, but is by its terms retroactive to June 1, 1973.

The Union brings this action seeking an order to compel the defendant Morse to enter into arbitration; the defendant has set forth its objections to arbitration, and contends that this Court should settle the merits of the dispute because the issues presented concern the intent of the parties in creating the Agreement.

I. FACTUAL BACKGROUND

From the record before the Court at this time, it appears that the essential facts behind this dispute are not contested by the parties, and establish the following situation.

The defendant Carl Morse is engaged in the construction business as a general contractor, and in March of 1974 was pursuing major construction projects at both Madison and Wausau, Wisconsin.

At the Wausau project, the defendant had subcontracted all of its work to various other construction firms, one of which was a masonry contractor, McWad, Inc. The employees of McWad, members of the Laborer's Union, AFL-CIO, had been operating forklift trucks at the Wausau building site for some time prior to March 1974, in connection with their other construction duties there. At the Madison project, on the other hand, the duties of forklift truck operation had been assigned to the Operating Engineer's Union since June 1, 1973.

On March 25, 1974, the defendant and the Operating Engineers Union entered into a collective bargaining agreement in Madison (the "Agreement"). Under the terms of this Agreement, its provisions were to be retroactive to June 1, 1973 to reflect the fact that the Operating Engineers Union had been associated with the employer since that time.

The current dispute is a result of that collective bargaining agreement. The plaintiff Union maintains that the terms of the contract are statewide in character such that the plaintiff is in violation of the Agreement by using Laborer's Union personnel in various capacities at the Wausau project. The general contractor, in return, maintains that the contract must be read so as to reflect the actual intent of the parties that the Agreement be limited to only the Madison building project.

The basic dispute here was formalized in a grievance which was drawn up by the Union on March 26, 1974; the Union charged therein that various pre-job conference requirements and work assignment requirements had been violated or ignored by the defendant, in conflict with Article IV, § 4.1, Article I, § 1.3 and Article VII, § 7.10 of the Agreement. When the parties were unable to reach an accord as to these issues, the Union demanded that the parties proceed to final and binding arbitration in accordance with the arbitration provisions of the Agreement that was then in effect between them; the employer-defendant has refused to enter into any arbitration of these matters.

Because of the foregoing circumstances, the Union filed a complaint with the Wisconsin Employment Relations Commission on May 23, 1974; the Union alleged therein a violation of Wisconsin Statutes § 111.06(1) (a) and (f) by the defendant's failure to arbitrate the dispute described above. In response to this attempt to compel arbitration through Wisconsin administrative procedure, the defendant filed a Notice and Petition of Removal, to bring the Union's action to this Court. The defendant claimed that removal was appropriate in this case in that the proceeding before the Wisconsin Employment Relations Commission constituted a civil action over which the District Courts of the United States have original jurisdiction pursuant to § 301 of the National Labor Relations Act, 29 U.S.C. § 185, and in that the case was otherwise within the provisions of the federal removal statute, 28 U.S.C. § 1441.

The plaintiff does not contest the propriety of this removal, but rather now petitions this Court to enter an Order to compel the defendant to arbitrate the issues forming the bases of the dispute, in accordance with the provisions of the collective bargaining agreement that was signed on March 25, 1974.

The defendant has filed an answer to the plaintiff's complaint here, and has set forth various affirmative defenses to support its position that arbitration is not appropriate at this time.

II. THE ARBITRATION SOLUTION

It is admitted that the plaintiff and defendant here are parties to a collective bargaining agreement dated March 25, 1974, and that this agreement provides a private arbitration procedure for the resolution of the disputes related thereto.

The collective bargaining agreement, appended as Exhibit "A" to the petition to compel arbitration that was filed by the plaintiff on August 28, 1974, states in pertinent part:

"ARTICLE IX — ENFORCEMENT

Section 9.1 — ARBITRATOR: All grievances, disputes or complaints of violations of any provisions of this Agreement shall be submitted to final and binding arbitration by an arbitrator appointed by the Wisconsin Employment Relations Commission. The arbitrator shall be a member or staff member of the WERC. The arbitrator shall have sole and exclusive jurisdiction to determine the arbitrability of such a dispute as well as the merits thereof. Written notice by registered return receipt letter of a demand for arbitration shall be given to the Contrator and Association or as applicable to the Union at its Milwaukee headquarters. The Contrator and Association as the case may be shall agree in writing within seven (7) calendar days to arbitrate the dispute.

"Both parties shall cooperate to have the case heard by an arbitrator within seven (7) calendar days of the written agreement to arbitrate, provided an arbitrator is available. The arbitrator shall have the authority to give a bench decision at the close of the hearing, unless he shall deem the issues to be unusually complex, and thereafter he shall reduce the award to writing. Grievances over discharge or suspension shall be filed no later than ten (10) calendar days after the matter is brought to the attention of the Business Representative of the Union and in no event later than thirty (30) calendar days after the event giving rise to the grievance for all grievances involving monetary liability excluding Health and Welfare and Pension benefits."

It is further admitted by both parties that this Court has jurisdiction over this case under the provisions of § 301 of the Labor Management Relations Act, 29 U. S.C. § 185: the plaintiff has conceded this fact in the Petition to Compel Arbitration that it filed on August 28, 1974, and the defendant has conceded this fact in the Petition for Removal that it filed on June 11, 1974.

Where jurisdiction has been established, and where it is apparent that the case presents a question of the enforcement of an arbitration clause in a written agreement to arbitrate, the provisions of the United States Arbitration Act, 9 U.S.C. § 1 et seq., become relevant. That statute states at § 4 that:

"A party aggrieved by the alleged failure, neglect, or refusal, of another to arbitrate under a written agreement for arbitration may petition any United States District Court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days' notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by the Federal Rules of Civil Procedure. The court shall hear the parties, and upon being satisfied of the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement."

An action commenced in a federal court under the provisions of § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, brings the action within that portion of § 4 of the Arbitration Act which requires jurisdiction under Title 28. See, e. g., Pietro Scalzitti Co. v. International Union of Operating Engineers, Local No. 150, 351 F.2d 576 (7th Cir. 1965); Silvercup Bakers, Inc. v. Strauss, 245 F.Supp. 199, rev'd on other grounds, 353 F.2d 555 (2nd Cir., 1965).

Once the Arbitration Act is held to be otherwise applicable, the Court must determine whether § 1 of that Act operates to except a particular case. Under the terms of § 1, Title 9 is limited such that nothing therein contained is to apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce. It seems clear that if this exception is applicable, the relief envisioned in § 4 is not available in this case. In the Scalzitti case, supra, Judge Hastings found that the collective bargaining contract there at issue was not a "contract of employment" such as to except the applicability of the provisions of 9 U.S.C. §...