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I. KLAYMAN & CO. v. UNITED FOOD & COMMER. WORKERS

May 6, 1980

I. KLAYMAN & COMPANY
v.
UNITED FOOD AND COMMERCIAL WORKERS LOCAL 190, AFL-CIO and UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO



The opinion of the court was delivered by: MCGLYNN

MEMORANDUM OF DECISION

Plaintiff instituted this action to recover damages it claims to have sustained as a result of the defendants' breach of the no-strike provision contained in the parties' collective bargaining agreement.

 Defendants moved to dismiss the complaint on the ground that plaintiff was required to submit its damage claim to binding arbitration. By order dated February 1, 1980, I denied the motion to dismiss for the reason that the arbitration provisions of the contract applied to employee or union grievances only.

 Thereafter, defendant filed an answer denying the substance of the plaintiff's complaint and, in addition, asserted a counterclaim for damages contending that the work stoppage was not a strike but a lockout in violation of the contractual no-lockout provision.

 Before the court is the plaintiff's motion to dismiss the counterclaim on the ground that the union and its members failed to exhaust the remedies provided by the collective bargaining agreement.

 The rationale underlying the ruling of February 11, 1980 is fairly straight forward and begins with the proposition that ". . . arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S. Ct. 1318, 1320, 8 L. Ed. 2d 462 (1962), quoting from United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S. Ct. 1347, 1352, 4 L. Ed. 2d 1409 (1960). At the heart of the matter, therefore, is the language of the grievance and arbitration provisions contained in the parties' collective bargaining agreement. Section 2 of Article XI of the parties' collective bargaining agreement (pp. 17-18 of Exhibit "A" to plaintiff's Complaint) provides that any grievance relating to "the interpretation or application of this Agreement" shall be processed in the following manner:

 
(a) The grievance shall in the first instance be taken up with the foreman by the department steward. The foreman shall render a decision thereon as soon as possible . . . ;
 
(b) The grievance shall then be presented by the Shop Steward to the Plant Superintendent or his nominee . . . ;
 
(c) The grievance shall be referred to the appropriate Union official for presentation to the appropriate official of the Employer. . . . If no agreement is thus reached, arbitration may be requested within twenty (20) days of the event complained of. . . .

 This language has been interpreted by the courts as not requiring an employer to submit a dispute and, in particular, a claim for damages resulting from an unlawful strike, to the grievance and arbitration procedure. In Affiliated Food Distributors, Inc. v. Local Union No. 229, 483 F.2d 418 (3rd Cir. 1973), cert. den., 415 U.S. 916, 94 S. Ct. 1412, 39 L. Ed. 2d 470 (1974), the employer brought an action against the union to recover damages for breach of the no-strike clause of its collective bargaining agreement. The union claimed that the parties had bound themselves to arbitrate any dispute. In reversing the district court's stay of the action pending arbitration, the Court of Appeals in analyzing the language contained in the agreement concluded:

 
Initially, any grievance "may be taken up by the Union Steward(s) with a representative of the department involved, or with an official of the Company.' At the second stage, "the Business Representative of the Union shall take the subject matter up with the Employer.' Thus, at both stages the initiative is with the union. It would be a strained construction at best which would attribute to the parties the thought that a company official would refer an employer's grievance to a union steward who would, in turn, refer the grievance to "a representative of the department involved' or to "an official of the Company'.
 
In short, we think it may be said with positive assurance, as in Atkinson ( Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S. Ct. 1318, 8 L. Ed. 2d 462 (1962)), that the arbitration clause of this collective bargaining agreement is not susceptible of a fair construction that the parties bound themselves to arbitrate employer grievances of the kind here involved. 483 F.2d at 421. (Emphasis in original.)

 To the same effect are Judge Cahn's decision in Welded Tube Co. v. Electrical Workers, 91 LRRM 2027 (E.D.Pa.1975), (". . . we find that a fair construction of the arbitration agreement shows with positive assurance that the parties did not intend to bind the company to arbitrate the dispute in question . . . .") and the decision in Friedrich v. Local No. 780, IUE, 515 F.2d 225 (5th Cir. 1975), (the grievance ". . . machinery is clearly oriented exclusively toward employee initiated disputes . . . . Such employer disputes as a claim for damages for breach of the no-strike clause was not intended to be resolved through these procedures . . . .").

 But the same cannot be said of the union's or employees' claims for damages stemming from a lockout. Paragraph 14 ...


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