The opinion of the court was delivered by: HANNUM
On June 6, 1963 plaintiff and defendant entered into a written collective bargaining agreement
which was to continue in effect until June 3, 1965. Article IX, Section 2 of that agreement provided in part:
Any dispute or grievance which cannot be adjusted between the Company and the Union, upon the written request of either party, shall be submitted not later than ninety (90) days after an answer has been given in Step 4, to a Board of Arbitration composed of one representative selected by the Company and one representative selected by the Union and G. Allan Dash, who shall serve as impartial chairman.
Article X of that collective bargaining agreement provided in part:
During the life of this Agreement there shall be no strikes, stoppages of work or slow-downs, or any concerted activity by the Union or its members designed to interfere with production requirements of the Company, . . .
On or about October 15, 1964 a dispute between plaintiff and defendant arose in which plaintiff claimed monetary damages because of an alleged breach of Article X of the 1963 collective bargaining agreement by defendant. Defendant claimed that there had been no violation of Article X. Thereafter, the parties submitted that dispute to arbitrator G. Allan Dash pursuant to the terms of Article IX of the 1963 agreement. He awarded plaintiff damages to be determined by a formula set forth in his award dated April 2, 1965. The first $5,000 was to be paid within 30 days with the remainder suspended for one year with a proviso that if a comparable situation should occur within that year, the remainder of such damages would immediately become due and payable. Thereafter, plaintiff agreed to suspend payment of the first $5,000 conditioned upon the same proviso made applicable by Dash to the remainder.
On June 4, 1965, the parties entered into a new collective bargaining agreement. Article IX and X were the same as those in the preceding collective bargaining agreement. This agreement was to remain in effect for two years, ending June 7, 1967.
On November 19, 1965, a work stoppage occurred which plaintiff asserted was a "comparable situation" within the meaning of Dash's award. On or about December 29, 1965, plaintiff made claim on defendant for damages in the amount of $14,636.32 calculated under G. Allan Dash's award of April 2, 1965. Defendant denied that the November 19, 1965 work stoppage was a "comparable situation" and rejected the claim that damages under G. Allan Dash's April 2, 1965 award were due and payable. Thereafter, on or about February 16, 1966 plaintiff demanded arbitration before the permanent arbitrator, G. Allan Dash, pursuant to the terms of the 1963 Agreement on the question of whether damages provided by his April 2, 1965 award were due and payable by virtue of the November 19, 1965 work stoppage.
On or about May 23, 1966, the parties, after discussions, again reached an agreement in which plaintiff agreed that it would not immediately press its claim for damages. The permanent arbitrator, G. Allan Dash, was so advised, and he stated that he would hold the matter open for the scheduling of future hearings if and when possible.
On January 27, 1969, plaintiff advised defendant that it was now seeking a determination by Mr. Dash of whether damages were due and payable under his award. Defendant has refused to arbitrate plaintiff's claim.
The defendant contends that this Court lacks jurisdiction because the permanent arbitrator, G. Allan Dash, is an indispensable party and has not been joined. The Court concludes that this contention is without merit. The only question before this Court is the narrow question of whether the parties did, in fact, agree to arbitrate the dispute or grievance in question. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960). This can be answered from the terms of the collective bargaining agreement and the nature of the dispute. Since the specific arbitrator under the contract can add nothing to assist in answering this question, he is not indispensable. See Greater Kansas City Laborers District Council, etc. v. Builders' Association of Kansas City, 217 F. Supp. 1, 11 (W.D. Mo. 1963), aff'd, 326 F.2d 867 (8th Cir. 1964), cert. denied, 377 U.S. 917, 84 S. Ct. 1182, 12 L. Ed. 2d 186 (1964). Furthermore, since plaintiff is not seeking an order from this Court against the arbitrator, his rights are in no way prejudiced by this Court's decision.
Plaintiff in this case is seeking arbitration under an expired collective bargaining agreement of an issue left open by the arbitrator in an earlier proceeding. The fact that the 1963 collective bargaining agreement had expired when plaintiff sought arbitration in 1965 is not controlling. The rights created and arising under a collective bargaining agreement are not expunged by the expiration of that agreement. See United ...