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February 21, 1961


The opinion of the court was delivered by: Henley, District Judge.

Plaintiffs, representatives of a labor organization having a collective bargaining agreement with defendant, seek to compel the latter to submit to arbitration under said agreement with respect to certain changes in wages, working conditions and the like which the Union has proposed to defendant, but upon which the parties have not been able to agree.*fn1 Taking the position that it is not required to arbitrate the particular matters that plaintiffs desire to have arbitrated, defendant has filed a motion to dismiss the complaint on the ground that it does not state a claim upon which relief can be granted. Rule 12(b)(6), Federal Rules of Civil Procedure, 28 U.S.C.A.

Attached to the motion as exhibits are copies of the collective bargaining agreement and of the changes which the Union proposes to incorporate into the contract. Since the Court has considered those materials in addition to the bare allegations of the complaint, the motion will be treated as one for summary judgment as authorized by Rule 12(b). The motion has been submitted on written briefs.

The contract in suit covered an initial period of two years beginning November 1, 1958, and ending October 31, 1960. By its terms the agreement continues in effect from year to year thereafter unless amended, modified, or terminated as provided therein. The contract appears to be not unusual in form. It covers wages, hours, and working conditions, and contains provisions for the settlement of disputes and the arbitration of grievances.

Section 2 of Article I of the contract provides that either party desiring to amend, modify, or terminate the agreement must notify the other party in writing at least 60 days in advance of expiration of the contract; that whenever such notice is given, the nature of desired changes is to be specified in the notice; and that until agreement is reached in the matter of such proposed changes, the original terms of the agreement shall remain in full force and effect.

Section 3 of the same article provides that the contract shall be subject to amendment "at any time by mutual consent of the parties" thereto, and that any amendment agreed upon shall be reduced to writing, signed by the parties, and approved by the international office of the Union.

Section 4 of Article I reads as follows:

    "The union and the company agree that there shall
  be no strikes, boycotts, lock-outs, slow-downs,
  curtailment of work or restriction of production by
  employees during the life of this agreement and that
  in the event differences or disputes should arise
  between the company or union or should any local
  trouble of any kind arise in the plant, there shall
  be no suspension of work by employees on account of
  such differences, but shall be processed as stated in
  `Grievance Procedure' of this agreement."

Article III sets up a grievance procedure for the settling of any differences which might arise between the Union and the defendant "as to interpretation or meaning of any written provision of this agreement." The procedure set up consists of a series of four steps, the first three of which are to consist of discussions and negotiations.

The fourth step is actually in two parts. If a grievance is not settled within five days by means of discussions between defendant's plant manager and the business agent of the Union, the matter is referred to a Joint Conference Committee, consisting of three representatives of the employer and three representatives of the Union, and if that committee is unable to reach an agreement, the grievance is to be submitted to the Industrial Relations Council of the National Electrical Contractors Association and of the International Brotherhood of Electrical Works for arbitration, and the decision of the Council shall be final and binding on both parties.

As stated, the contract was to become effective as of November 1, 1958. The agreement was actually signed on February 9, 1959. It appears that at that time the parties were in a dispute as to the wages to be paid to the different classes of workers mentioned in the contract, and by a separate written agreement the parties submitted the question of wage rates to the industry council which has been mentioned for the purpose of arbitration. That question was arbitrated by the council, and a schedule of wages was fixed and put into effect, the award being made retroactive to February 9, 1959.

Subsequently, the Union proposed certain changes in the original contract, including substantial wage increases, and requested the defendant to negotiate with respect thereto. Negotiations not having resulted in an agreement, this suit was filed to compel arbitration with respect to the amendments desired by the Union.

There is now no question that under section 301(a) of the Labor-Management Relations Act a provision for arbitration contained in a collective bargaining agreement may be specifically enforced by the federal courts provided that the matter in dispute is an arbitrable issue under the contract. Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 923, 1 L.Ed.2d 972; see also General Electric Co. v. Local 205, United Electrical, Radio & Machine Workers of America, 353 U.S. 547, 77 S.Ct. 921, 1 L.Ed.2d 1028; Goodall-Sanford, Inc. v. United Textile Workers, 353 U.S. 550, 77 S.Ct. 920, 1 L.Ed.2d 1031. Since those decisions were handed down, such specific performance has been granted at least twice by federal courts sitting in Arkansas. Glass Bottle Blowers Association of United States and Canada, AFL-CIO v. Arkansas Glass Container Corporation, D.C.Ark., 183 F. Supp. 829; International Union of Operating Engineers (AFL-CIO), Local No. 381 v. Monsanto Chemical Co., D.C.Ark., 164 F. Supp. 406.

Before ordering specific performance, however, the court is required to ascertain whether the issues which the plaintiff desires to submit to arbitration are arbitrable under the collective bargaining agreement. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; United Steel Workers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1363, 4 L.Ed. 2d 1432; Chauffeurs, Teamsters & Helpers Local Union No. 795 v. Yellow Transit Freight Lines, 10 Cir., 282 F.2d 345; Brass and Copper Workers Federal Labor Union No. 19322, AFL-CIO v. American Brass Co., 7 Cir., 272 F.2d 849. International Tel. & Tel. Corporation v. Local 400, Professional, Technical & Salaried Division, Intern. Union of Electrical, Radio & Machine Workers, D.C.N.J., 184 F. Supp. 866.

Article III of the contract with which the Court is concerned here was obviously designed to cover ordinary employee grievances which might be expected to arise during the life of the agreement, and plaintiffs do not appear to contend that said article itself makes the ...

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