INTERNATIONAL U., OP. ENG., LU 564 v. DOW CHEM. CO., TEX. DIV.

• Decision Date: 15 September 1972
• Docket Number: Civ. A. No. 71-H-1472.
• Citation: 348 F. Supp. 1149
• Parties: INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 564 v. The DOW CHEMICAL COMPANY, TEXAS DIVISION and Charles Goff, Jr.
• Court: U.S. District Court — Southern District of Texas

348 F. Supp. 1149

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 564 v. The DOW CHEMICAL COMPANY, TEXAS DIVISION and Charles Goff, Jr.

Civ. A. No. 71-H-1472.

United States District Court, S. D. Texas, Houston Division.

September 15, 1972.

Ira D. Watrous, Bray, Ashley, Shaver, Sherbert & Watrous, Houston, Tex., for plaintiff.

Richard R. Brann, Baker & Botts, Houston, Tex., for defendants.

Memorandum and Order:

SINGLETON, District Judge.

This is a suit brought under Section 301 of the Labor Management Relations Act (29 U.S.C. § 185) by plaintiff Union alleging that Defendant Dow Chemical Company has violated the terms of its collective bargaining agreement, as amended. The alleged violation is that Defendant has failed to comply with the terms of the contract and attendant settlement agreement concerning lunch periods for certain employees represented by plaintiff. Defendant has moved this court to dismiss on the grounds that the Union should first use the arbitration procedures outlined in the collective bargaining agreement before filing suit in federal court. The collective bargaining agreement contains a detailed procedure for settling disputes. It provides a four-step grievance procedure for arbitration should the grievance procedure prove ineffective.

The gravamen here is a dispute over lunch time. On April 29, 1971, Mr. R. R. Jones, Department Steward for plaintiff Union, filed a written grievance pursuant to Article XX, Step 3, of the labor contract claiming that the company had violated the provisions of the contract concerning thirty-minute lunch periods for employees classified as Mason Tenders. This grievance was processed through several steps of the grievance procedure and was ultimately settled on the basis of a written agreement dated July 30, 1971, signed by representatives of all parties before the dispute reached the final arbitration stage. The settlement reads as follows:

"A day worker will normally be required to work until 11:30 a.m. He may remain at his lunch site until 12:00 noon.

"When observance of this rule would create an undue hardship on the employee, he should bring it to the attention of his supervisor for consideration."

In spite of this settlement agreement, controversy over lunch breaks again arose. The Union asserts that the company is clearly violating the terms of the settlement, while the company characterizes the dispute as one over the term "lunch site" in the settlement. The Union instead of submitting the dispute over the settlement to the grievance and arbitration procedure brings suit in federal court for injunctive relief and damages due to the company's alleged failure to abide by the agreement.

This court grants defendant Dow Chemical Company's motion to dismiss. The Supreme Court has made it clear that when the collective bargaining agreement contains an arbitration procedure and the arbitration procedure covers the question in dispute, a federal court has no jurisdiction under § 301 unless the arbitration procedure has first been utilized. United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). The court's function is to determine if it is an arbitrable dispute—if it is, and if the arbitration procedure has not been followed, the court must dismiss for lack of jurisdiction.

The collective bargaining agreement between Dow Chemical Company and the Union clearly provides for arbitration.

"It is further agreed that if the Plant Management and the Plant Union Committee cannot mutually settle any controversies, differences, or disputes that arise regarding discharges or dismissals of non-probationary employees, or interpretations of this agreement, the Company and the Union, upon request of the Union to arbitrate such controversies, differences, or disputes, shall meet within 14 calendar days and name two representatives each as arbitrators and, within five days after the appointment of said four arbitrators, an attempt shall be made mutually to settle such controversies, differences, or disputes by the four named arbitrators." (Emphasis added.)

Surely this is a "controversy, difference or dispute" concerning "the interpretation of this agreement" and, therefore, arbitrable. In Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965), the Supreme Court reaffirmed the value of using the arbitration procedures available (in holding that an individual employee must use the grievance procedure):

". . . Congress has expressly approved contract grievance procedures as a preferred method for settling disputes and stabilizing the `common law' of the plant. LMRA § 203(d), 29 USC § 173(d); § 201(c), 29 USC § 171(c) (1958 ed). . . .

"A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it. In addition to cutting across the interests already mentioned, it would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation `would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements.' Local 174, Teamsters etc. Chauffeurs, Warehousemen & Helpers of America v. Lucas-Flour Co. 369 U.S. 95, 103, 82 S.Ct. 571, 577, 7 L.Ed.2d 593 599."

As the Fifth Circuit emphasized in Haynes v. United States Pipe & Foundry Company, 362 F.2d 414 (1960):

"Congress explicitly stated, by way of a policy, in § 203(d) of the Taft-Hartley Act, 29 U.S.C.A. § 173(d), that in settling grievance disputes, the Act contemplated that the

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