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WILLIAM ROSENSTEIN & SONS v. TEAMSTERS LOCAL UNION

June 20, 1989

WILLIAM ROSENSTEIN & SONS, Petitioner
v.
TEAMSTERS LOCAL UNION 229, Affiliated with the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondents



The opinion of the court was delivered by: CONABOY

 RICHARD P. CONABOY, CHIEF UNITED STATES DISTRICT JUDGE

 I

 This action was commenced by William Rosenstein & Sons (hereinafter Rosenstein) against Teamsters Local Union 229 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, (hereinafter Teamsters) in the Court of Common Pleas of Lackawanna County and thereafter removed by the Teamsters, pursuant to 28 U.S.C. ยง 1441, to this Court. Subsequent to the removal to this Court, the Teamsters filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion has been briefed and is ripe for disposition. Because we find the motion to have merit and because we find two fatal flaws in the opposition argument of Rosenstein, the motion will be granted.

 II

 In initiating the action in the Court of Common Pleas of Lackawanna County, Rosenstein sought to bar arbitration on the issue of the dismissal of one of its employees. Rosenstein does not argue that the issue of dismissal is not arbitrable, but argues rather that the matter as it presently stands is not arbitrable because the Teamsters failed to follow certain procedures outlined in the contract before attempting to bring the issue of dismissal to arbitration. The Teamsters argue that the contract in existence between Rosenstein and the Teamsters provides that the question of arbitrability itself is a matter which is to be submitted to and decided by the arbitrator. In addition, the Teamsters factually dispute the assertion by Rosenstein that the Teamsters failed to follow the steps outlined in the contract which precede a demand for arbitration.

 Both parties acknowledge the existence of a binding collective bargaining agreement which was effective from on or about October 22, 1987 through October 22, 1990 and both acknowledge that the provisions regarding grievance procedures and arbitration are binding on the parties in this case.

 Indeed, both parties cite not only the same provisions of the collective bargaining agreement but the same legal authorities in making their arguments in this case.

 Rosenstein argues that the Teamsters failed to follow initial steps provided in the grievance procedure before attempting to bring the dismissal matter to arbitration; and he argues further that the requirement to follow the initial steps of the grievance procedure is a procedural matter which denies jurisdiction in any arbitrator to hear the charge of dismissal. The Teamsters argue first that the matter of following or not following the steps in the grievance procedure is a substantive argument and, secondly, that even if the failure to follow the steps in the grievance procedure is considered procedural, that the contract itself provides that all such matters shall be submitted to arbitration.

 Article XXX makes provisions for grievance and arbitration procedures and pertinent to this action provides as follows:

 
Section 1
 
A grievance is hereby jointly defined to be any controversy, complaint, misunderstanding or dispute between the Union and the Employer, or between an employee or group of employees and the Employer. The parties agree that such grievance shall be resolved in the following manner:
 
(a) If an employee, a group of employees or the Union has a grievance, it shall be presented by the Union steward to the Company in writing within seven (7) calendar days after the occurrence of the facts that led to the grievance; otherwise, the grievance shall be deemed untimely.

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