Production and Maintenance Employees' Local 504, Laborers' Intern. Union of North America, AFL-CIO v. Roadmaster Corp.

• Decision Date: 14 November 1990
• Docket Number: AFL-CI,P,No. 89-3413,89-3413
• Citation: 916 F.2d 1161
• Parties: 135 L.R.R.M. (BNA) 2831, 135 L.R.R.M. (BNA) 3029, 116 Lab.Cas. P 10,373, 18 Fed.R.Serv.3d 21 PRODUCTION AND MAINTENANCE EMPLOYEES' LOCAL 504, LABORERS' INTERNATIONAL UNION OF NORTH AMERICA,laintiff-Appellee, v. ROADMASTER CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1161

916 F.2d 1161

135 L.R.R.M. (BNA) 2831, 135 L.R.R.M. (BNA) 3029,

116 Lab.Cas. P 10,373, 18 Fed.R.Serv.3d 21

PRODUCTION AND MAINTENANCE EMPLOYEES' LOCAL 504, LABORERS'

INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO, Plaintiff-Appellee, v. ROADMASTER CORPORATION, Defendant-Appellant.

No. 89-3413.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 27, 1990.

Decided Oct. 18, 1990.

As Amended on Denial of Rehearing and Rehearing En Banc Nov.

14, 1990.

Michael W. O'Hara, Cavanagh, Hosteny & O'Hara, Springfield, Ill., for plaintiff-appellee.

Kevin J. Kinney, David F. Loeffler, Krukowski & Costello, Milwaukee, Wis., and Kurtis B. Reeg, Belleville, Ill., for defendant-appellant.

Before WOOD, JR., and EASTERBROOK, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

As the end of its collective bargaining agreement approached, Roadmaster Corporation notified three unions that it would not extend the contract. It sent this letter because the agreement contained a provision automatically renewing all terms from year to year in the absence of 60 days' written notice. Roadmaster had just weathered a strike and hired more than 500 permanent replacements. It believed that none of the three unions claiming to represent the workers had support among its current employees, and refused to negotiate with them. One of these, Local 504 of the Production and Maintenance Employees, took Roadmaster to arbitration, contending that the mailed notice coupled with a refusal to bargain did not prevent the extension of the agreement. An arbitrator agreed--not because the contract said so, for the arbitrator did not consider the contract, but because the arbitrator believed that the National Labor Relations Act had this effect. Cf. NLRB v. Curtin Matheson Scientific, Inc., --- U.S. ----, 110 S.Ct. 1542, 108 L.Ed.2d 801 (1990). Because the arbitrator's power was limited to interpreting and enforcing the collective bargaining agreement, the district court refused to enforce the award. Roadmaster Corp. v. Production & Maintenance Employees' Local 504, 655 F.Supp. 1460 (S.D.Ill.1987), affirmed, 851 F.2d 886 (7th Cir.1988).

Local 504 still wanted an interpretation of the contract. It had two options. One was to ask the court to remand the dispute to the original arbitrator with instructions to interpret and enforce the collective bargaining agreement. The other was to make a fresh demand for arbitration. Local 504 took the second course, and Roadmaster balked. It sent the union a letter asserting that the prior decisions had held that "the December 16, 1985 notice from Roadmaster to Local 504 terminated the contract at the stroke of midnight February 28, 1986, pursuant to the express terms of Article 34 of that contract.... [T]he Union has had a full and fair trial on that legal issue and a final judgment has been entered between Roadmaster and Local 504 that all the provisions of the 1982-86 contract expired at midnight February 28, 1986.... The doctrine of preclusion by prior judgment--res judicata--bars relitigation of the Union's claim." This piffle did not persuade the union, as well it should not. Neither the district court nor this court held that the contract terminated on February 28. Neither court could construe the contract; the contract reposes that power in an arbitrator, and the point of the earlier decisions was that the arbitrator had yet to construe the contract.

Roadmaster's rebuff led Local 504 to commence this case, seeking an order to compel arbitration. Roadmaster abandoned the claim that the courts had construed the agreement authoritatively; as a fallback it insisted that doctrines of preclusion barred a second "litigation"--that Local 504's only option was to seek a remand to the original arbitrator, cf. Ethyl Corp. v. United Steelworkers, 768 F.2d 180, 187-88 (7th Cir.1985), and that the request for a fresh reference instead of a remand was a fatal miscue. The district court disagreed, observing that the first set of judicial decisions was not "on the merits", so that a second arbitrator could be appointed to interpret the contract at long last. Local 504 does not want the arbitrator to reexamine the courts' decision; it followed, the judge believed, that there is no preclusion.

Roadmaster treats this as a case in which the first arbitrator's order was enforced, or enforcement was denied on the ground that the contract does not admit of a proposed reading, and the loser wants an arbitrator to reexamine that decision. As the district judge properly observed, it is not. We have instead a request for a second arbitration in order to reach an initial decision about the meaning of a collective bargaining agreement.

Whether more than one arbitrator can take a crack at interpreting the contract is itself a question of contractual interpretation. W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 765, 103 S.Ct. 2177, 2182, 76 L.Ed.2d 298 (1983); Electrical Workers v. United Telephone Co., 738 F.2d 1564, 1572 (...