Retail, Wholesale and Dept. Store Union, Local 390 v. Kroger Co., 90-3359

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation927 F.2d 275
Docket NumberNo. 90-3359,90-3359
Parties136 L.R.R.M. (BNA) 2776, 118 Lab.Cas. P 10,602 RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, LOCAL 390, Plaintiff-Appellant, v. The KROGER COMPANY, Defendant-Appellee, Teamsters Local 661, International Brotherhood of Teamsters, Chauffeurs and Warehousemen of America, Intervenor-Appellee.
Decision Date06 March 1991

Peter M. Fox and Thomas J. Kircher (argued), Kircher & Phalen, Cincinnati, Ohio, for plaintiff-appellant.

Jonathan M. Norman (argued), Vorys, Sater, Seymour & Pease, Cincinnati, Ohio, for defendant-appellee.

Robert I. Doggett (argued), Cincinnati, Ohio, for intervenor-appellee.

Before MILBURN and GUY, Circuit Judges, and BROWN, Senior Circuit Judge.

MILBURN, Circuit Judge.

Plaintiff-appellant Retail, Wholesale and Department Store Union, Local 390 ("Retail Union") appeals the summary judgment granted by the district court denying enforcement of an arbitration award against defendant-appellee The Kroger Company ("Kroger") and ordering tripartite arbitration before a new arbitrator between Retail Union, Kroger and intervenor-appellee Teamsters Local 661, International Brotherhood of Teamsters, Chauffeurs and Warehousemen of America ("Teamsters Local 661"). The action was filed under section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185. For the reasons that follow, we affirm.

I.

This action involves two conflicting arbitration awards, one rendered in favor of Retail Union under its bargaining agreement with Kroger, and the other rendered in favor of Teamsters Local 661 under its bargaining agreement with Kroger. Each award purports to give the respective bargaining agent the exclusive right under its bargaining agreement to furnish employees to Kroger for a facility at 800 East Kemper Road in Springdale, Ohio.

Plaintiff Retail Union represents certain Kroger employees in the Cincinnati, Ohio, area, and Teamsters Local 661 represents another group of Kroger employees in the same area. Kroger has maintained bargaining relations with both of the unions, on behalf of their respective memberships, for a number of years. Kroger's facility at 800 E. Kemper Road was a manufacturing plant employing members of the Retail Union until closed in 1983.

In October 1984, Kroger began using the Kemper Road facility as a warehouse, employing members of Teamsters Local 661. Kroger's position was that its contract with Teamsters Local 661 covered warehouse employees whereas the contract with Retail Union covered production employees. Since the work being done at the Kemper Road facility was primarily warehousing, Kroger reasoned that the work should be assigned to Teamsters Local 661 as a natural overflow of work at the nearby Woodlawn, Ohio, retail store warehouse.

Retail Union filed grievances under its collective bargaining agreement claiming that the work should be given to its members. The grievances proceeded to an arbitration hearing before arbitrator Theodore High on April 2, 1986. It is undisputed that Teamsters Local 661 was not a party to the arbitration between Kroger and Retail Union.

Arbitrator High reviewed both collective bargaining agreements and concluded that the parties intended that representation be defined by geographic location rather than company division and, further, that the parties intended that Retail Union perform the work at the Kemper Road facility. Accordingly, arbitrator High ordered Kroger to "cease and desist assigning warehouse and shipping work at its 800 East Kemper Road, Springdale, Ohio facility to employees other than those represented by ... [Retail Union]." The arbitrator also ordered Kroger to award all future work to Retail Union employees and to make members of the Retail Union whole for any losses incurred.

Even though Kroger did not comply with the arbitration award in favor of Retail Union, on August 5, 1986, an official of Teamsters Local 661 wrote Kroger to inform: "It is my understanding that due to a dispute between The Kroger Company and [Retail Union], certain job duties are planned to be transferred from members of Teamsters Local 661 to members of Teamsters Local 661 to members of [Retail Union].... This letter may be considered as a grievance should there be need to proceed further." J.A. 43. The matter proceeded to arbitration; however, Kroger's position before the arbitrator was that the work was properly assigned to the Teamsters. On November 16, 1987, after reviewing Kroger's bargaining agreements with both unions, arbitrator Edwin Render concluded that the parties' intent was that company divisions, rather than geographic location, control and that the work had been properly assigned to Teamsters Local 661. Retail Union was invited to participate in the proceedings before arbitrator Render but declined.

Meanwhile, on October 22, 1986, Retail Union filed a complaint in the district court demanding enforcement of its arbitration award. On March 18, 1987, Teamsters Local 661 filed a motion to intervene which the district court granted on July 10, 1987. The district court later allowed Teamsters Local 661 to file a counterclaim demanding enforcement of arbitrator Render's award in favor of Teamsters Local 661.

Both unions filed motions for summary judgment on March 1, 1988. On March 21, 1988, defendant Kroger filed a motion for summary judgment asking that the court refuse to enforce either of the two conflicting arbitration awards and alternatively proposing that the court submit the matter to tripartite arbitration. On March 5, 1990, the district court entered summary judgment ordering the parties to participate in a tripartite arbitration proceeding before a new arbitrator. Retail Union filed this timely appeal.

The principal issues presented for review are (1) whether the district court was precluded from considering the existence of conflicting arbitration awards as a basis for its ruling where the employer failed to file a timely action to vacate the arbitration award in favor of Retail Union, and (2) whether the district court erred in ordering tripartite arbitration between an employer and two separate unions to settle a dispute concerning which union had the right to furnish employees for a work-site where each union had obtained an award in bipartite arbitration purporting to give it exclusive jurisdiction over that worksite.

II.
A.

Because of the unique nature of the issues presented in this appeal, an extended discussion of the standard of review will not be helpful. Suffice it to say that questions of law are subject to de novo review, Whitney v. Brown, 882 F.2d 1068, 1071 (6th Cir.1989), and that the courts which have examined the propriety of tripartite arbitration have treated the issue as a question of law. See, e.g., United Indus. Workers v. Kroger Co., 900 F.2d 944 (6th Cir.1990); United States Postal Serv. v. American Postal Workers Union, 893 F.2d 1117 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 67, 112 L.Ed.2d 42 (1990).

B.

Plaintiff Retail Union's position is essentially that it won the race to an arbitration award, and having won the race, it was entitled to enforcement of its arbitration award since that award drew its essence from the collective bargaining agreement. It further argues that the other parties in this action should be penalized for failing to prevent the issuance of conflicting arbitration awards, and, in fact, promoting the possibility of conflicting arbitration awards. Plaintiff's position is an oversimplification of the case and ignores the serious problems presented to the district court by conflicting demands for enforcement of conflicting arbitration awards.

Retail Union's first argument is that no timely action was filed to set aside arbitrator High's award on the basis of a conflicting arbitration award, and, therefore, a conflicting award cannot form the basis for refusing to enforce the first award. See Occidental Chem. Corp. v. International Chem. Workers Union, 853 F.2d 1310, 1317 (6th Cir.1988) ("[O]bjections that might have formed the basis for a timely action to vacate an award may not be raised as defenses in an action to confirm the award after the limitations period for an action to vacate has expired.")

Kroger asserts that this argument has been waived because "[a]bsolutely no mention was made by [Retail Union] at the lower court level of the argument it now makes that Kroger and Teamsters Local 661 were barred from raising defenses to the enforceability of the arbitration award due to their failure to affirmatively move to vacate such an award." Appellee Kroger's Brief at 22. We have held that even in the context of arbitration, failure to raise a limitations defense in a timely manner before the district court results in a waiver of the defense. International Bhd. of Boilermakers--Local 1603 v. Transue & Williams Corp., 879 F.2d 1388, 1396 n. 3 (6th Cir.1989) (defendant in action to compel arbitration waived statute of limitations defense by failing to raise it in a timely manner before the district court).

Moreover, assuming arguendo that there was no waiver by Retail Union, and that Kroger could not raise the conflicting award as a defense to enforcement, the district court had before it the counterclaim of Teamsters Local 661, a party not bound by the first arbitration award. See Transportation-Communication Employees Union v. Union Pacific R.R., 385 U.S. 157, 164, 87 S.Ct. 369, 373, 17 L.Ed.2d 264 (1966). This counterclaim squarely placed before the district court the problem of conflicting arbitration awards. Retail Union does not now argue that it was error for the district court to allow Teamsters Local 661 to file its counterclaim. Thus, we cannot accept Retail Union's argument that the district court should not have considered or relied on the existence of a conflicting award.

We find a similar weakness in Retail Union's final argument; viz.,...

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