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FOOD HANDLERS LOCAL 425, ETC. v. PLUSS POULTRY

February 7, 1958

FOOD HANDLERS LOCAL 425, AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, PLAINTIFF,
v.
PLUSS POULTRY, INC., DEFENDANT.



The opinion of the court was delivered by: John E. Miller, District Judge.

Both parties have moved for summary judgment, and the motions are now before the Court for decision upon the pleadings, exhibits, affidavits, and briefs of the parties. The question to be decided is whether there is a genuine issue as to any material fact and whether either party is entitled to a summary judgment in its favor as a matter of law. Rule 56(c), Fed.Rules Civ.Proc. 28 U.S.C.A.

In its complaint plaintiff alleges:

That it is a labor organization and trade union having its principal place of business in Fayetteville, Arkansas; that the defendant is an Arkansas corporation having its principal place of business in Siloam Springs, Arkansas; and that defendant is engaged in the processing of poultry in an industry affecting commerce within the meaning of Title 29 U.S.C.A. § 185.

That on or about February 2, 1956, it entered into an agreement with the defendant covering, among other things, dues deduction, job posting, and other working conditions for defendant's employees at its Siloam Springs, Arkansas, plant. The agreement was to be in effect from February 2, 1956, until December 7, 1956. On or about April 12, 1957, plaintiff and defendant entered into a new agreement which was made effective retroactively to February 4, 1957, and which would terminate April 1, 1958. A copy of the new and existing agreement is attached as Exhibit A to the complaint.

That each of the agreements provided for arbitration of any dispute between the parties with reference to the "proper interpretation or application of any provision of this agreement". The specific arbitration provision contained in the existing agreement reads as follows:

"Arbitration

    "Section C — In the event of any dispute arising
  between the Company and the Union with reference to
  the proper interpretation or application of any
  provisions of this Agreement, and such dispute cannot
  be resolved by the grievance procedure set forth in
  Section (B) of this Article IV, it may, at the
  request of either party, be submitted to a Board of
  Arbitrators, consisting of one member to be appointed
  by each of the parties hereto, and a third member to
  be chosen by the first two

  members. The party requesting arbitration shall give
  notice in writing of the fact to the other party, and
  in such notice shall furnish the name of its
  arbitrator and the opposing party shall, within
  twenty-four (24) _____, appoint its arbitrator and
  give notice thereof in writing to the other party. In
  the event such two arbitrators cannot agree upon the
  third arbitrator within seventy-two (72) hours after
  the original request for arbitration, both parties
  agree to request the Federal Mediation and
  Conciliation Service to submit a list of five (5)
  names of arbitrators. The party originally requesting
  arbitration shall make the request for said list. The
  Company and the Union shall alternately strike off
  names from the list until one name remains. The
  remaining arbitrator on the list shall be appointed
  the third member of the Board of Arbitration. Such
  Board of Arbitration shall have authority only to
  interpret and apply the provisions of this contract.
  Its award shall be in writing, shall be rendered
  within five (5) days after the appointment of the
  last member thereof, and shall be binding upon the
  Company, the Union and the employees involved in the
  controversy. The parties hereto shall divide the
  expense of the third arbitrator."

That a dispute arose between it and the defendant over the interpretation and application of the dues deduction and job posting provisions of the agreement; that plaintiff requested defendant to comply with the agreement, which defendant refused to do; and that plaintiff duly demanded that the dispute be submitted to arbitration in accordance with the agreement, but that defendant refused to do so.

That in accordance with the agreement it requested the Director of the Federal Mediation and Conciliation Service to furnish a list of five arbitrators to hear the dispute, and that such list was furnished; that plaintiff requested defendant to meet for the purpose of selecting an arbitrator, but that the defendant refused to do so.

That on September 30, 1957, the arbitrator, duly selected according to the terms of the agreement, after a proper hearing duly issued his award, which was concurred in by the Union member of the Board of Arbitration. A copy of the award is attached as Exhibit B to the complaint, and said award was in favor of the plaintiff on both issues, i.e., job posting and dues deduction.

That defendant has refused to abide by the award of the Board of Arbitration; that defendant should be enjoined and restrained from violating the agreement and award by refusing to abide by the decision of the Board of Arbitration. Plaintiff prays for such an injunction; for an order confirming the award of the Board of Arbitration; for its costs, disbursements, and expenses in this action; and for such other and further relief as justice and equity may require.

In due time the defendant filed its answer and included therein a motion to dismiss. The motion to dismiss challenges the Court's jurisdiction over the subject matter and asserts that the complaint does not state facts sufficient to constitute a cause of action.

In its answer defendant admits most of the factual allegations made in plaintiff's complaint. However, it denies that the matters on which plaintiff demanded arbitration are proper subjects of arbitration under the agreement, and alleges that plaintiff did not comply with the arbitration provision of the agreement in initiating and prosecuting the arbitration and that the purported award is contrary to law and without legal foundation. Specifically, defendant alleges that the Board of Arbitration was not selected in the manner provided in the agreement.

The defendant further alleges that the purported award of the arbitrator would require the defendant to violate the federal law and would subject defendant to civil action by its employees for the amount of union dues checked off pursuant to the purported award, and in the alternative that the decision of the arbitrator is at such variance with established principles of law and is so outrageous and shocking to reason and conscience that it should be set aside by the Court.

On January 6, 1958, the defendant filed its motion for summary judgment in accordance with the provisions of Rule 56(b) and (c), F.R.C.P., on the ground that the pleading and affidavit attached thereto show that the defendant is entitled to a judgment as a matter of law.

Attached to the motion is an affidavit of M.H. Simmons, Manager of defendant, who states, under oath, that he has personal knowledge of the facts set out in the affidavit; that in the event any matter is submitted to arbitration the Board of Arbitration shall consist of one member appointed by each of the parties, and a third member to be chosen by the first two members, and if the two members cannot agree, then both parties are to request the Federal Mediation and Conciliation Service to submit a list of five names from which the third member of the Board of Arbitration should be chosen; that he has not, nor has any other officer or employee of the defendant, appointed an arbitrator to serve on the Board of Arbitration to arbitrate the matter of the check-off of union dues or the posting of job vacancies; nor has he, or any employee of defendant, requested the Federal Mediation and Conciliation Service to submit a list of five names from which to select the third arbitrator; nor has he, or any other employee of the defendant participated in any manner in the selection of Ralph C. Barnhart of Fayetteville, Arkansas, or any other person to arbitrate the matter; nor has he, or any other employee, officer or agent of defendant, participated or acquiesced in the arbitration by the said Ralph C. Barnhart or any other person of the check-off of union dues or the posting of job vacancies, and that he, as General Manager of defendant, has continued to object to any purported authority of Ralph C. Barnhart, or any other person, to arbitrate the matter of check-off of union dues and the posting of job vacancies under the collective bargaining agreement.

On January 13, 1958, plaintiff filed its motion for summary judgment in accordance with the provisions of Rule 56(b) and (c), F.R.C.P., and attached thereto an affidavit of its President, Robert J. Parker. In the affidavit Parker states:

    "My organization, plaintiff herein, is signatory to
  a collective bargaining agreement presently
  subsisting, which by its terms became effective
  February 4, 1957, and expires April 1, 1958. The wage
  increase contained therein, however, became effective
  on and after March 4, 1957. Prior to this agreement
  we were signatory to an agreement which terminated on
  December 7, 1956, pursuant to a letter from us
  terminating the same, as provided for in the
  Agreement. Pursuant to the terms of that Agreement,
  plaintiff had submitted to defendant `check-off'
  authorization cards signed by defendant's employees,
  authorizing defendant to `check-off' dues and
  transmit the same to the plaintiff. The form of the
  authorizations are in the same form as written in the
  Arbitration Award attached to the Complaint in this
  cause.
    "Defendant did `check-off' dues and transmit the
  same to plaintiff for the duration of the Agreement.
    "However, defendant failed to `check-off' dues and
  transmit the same to plaintiff under the terms of the
  new Agreement. Furthermore, defendant also failed to
  post a job vacancy. Plaintiff sought to adjust these
  matters as grievances under the Agreement by
  following the procedure contained therein, but was
  unsuccessful. On April 29, 1957, by certified mail,
  plaintiff gave notice of its desires to arbitrate the
  grievances and appointed affiant as their arbitrator.
  On May 3, 1957, defendant,

  by its attorney, notified plaintiff by registered
  mail that they declined to arbitrate the grievances.
  On May 6, 1957, plaintiff, by certified mail, urged
  the defendant to reconsider its position and again
  defendant, by its attorney, declined to do so. On May
  17, 1957, plaintiff, by certified mail, notified
  defendant that they would follow the agreement and
  request a panel of arbitrators from the Federal
  Mediation and Conciliation Service. Plaintiff did
  request a panel and on May 31, 1957, defendant
  objected, by telegram, to the Federal Mediation and
  Conciliation Service submitting a panel of
  arbitrators. On June 3, 1957, the Federal Mediation
  and Conciliation Service, by its General Counsel,
  informed defendant that it would comply with
  plaintiff's request as it interpreted the Agreement
  to permit it. On June 6, 1957, plaintiff informed
  defendant's manager that it had received the panel
  and requested him to strike the names, as provided
  for in the Agreement, but defendant's manager
  declined to do so and directed affiant to defendant's
  attorney. On June 7, 1957, plaintiff notified, by
  certified mail, defendant's attorney of this fact and
  requested a time and place to meet for the purpose of
  striking the names from the panel. This, defendant's
  ...

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