The opinion of the court was delivered by: John E. Miller, Chief Judge.
On May 19, 1961, plaintiff filed its complaint against
defendant seeking to restrain and enjoin defendant from violating
a collective bargaining agreement, alleged to exist between
plaintiff and defendant, by refusing to arbitrate the
differences, disputes and complaints between plaintiff and
defendant in connection with the discharge of one Arlie Bray, and
that the court order the defendant to submit said differences,
disputes and complaints to arbitration in accordance with the
terms of the agreement.
On August 1, 1961, defendant filed its answer in which it
admitted that a collective bargaining agreement was entered into
on August 20, 1958, between plaintiff and defendant, and that the
agreement covered such matters as hours, wages, rates of pay,
dues deduction, job posting, seniority and discharges, but denied
that the agreement was renewed and extended or that it was in
force and effect after November 15, 1959, the date of expiration
fixed by the terms of the contract.
The defendant alleged that the agreement contained a
termination clause allowing either party to terminate said
agreement by giving to the other 60 days notice prior to November
15, 1959, and that the plaintiff gave defendant notice of
cancellation and termination by letters of September 5 and 8,
1959; that after said notice was given to the defendant, the
parties entered into negotiations in an effort to agree upon the
provisions of a new collective bargaining agreement, which
meetings were held intermittently until April 17, 1961, at which
time negotiations were terminated.
The defendant admitted that it discharged one Arlie Bray on or
about January 31, 1961, and alleged that it bargained in good
faith with plaintiff relative to such discharge, but denied that
the collective bargaining agreement dated August 20, 1958, was in
full force and effect as of January 31, 1961.
The case proceeded to trial to the court without a jury on
November 13, 1961, and at the conclusion of the testimony and
arguments of counsel for the respective parties, the case was
submitted and taken under consideration, and now, having
considered the ore tenus testimony of the witnesses with the
exhibits to said testimony, and the briefs submitted in support
of their respective contentions, this opinion is filed embodying
the findings of fact and conclusions of law in accordance with
Rule 52(a), Fed.R.Civ.P., 28 U.S.C.A.
The plaintiff is an unincorporated association, a labor
organization and trade union engaged in representing employees
for the purposes of collective bargaining, having its main office
in Fayetteville, Arkansas.
The defendant is a corporation duly organized and existing
under the laws of the State of Arkansas, with its principal place
of business at Bentonville, Arkansas, and is engaged in the
processing of poultry.
The employees of the defendant had prior to August 20, 1958,
been represented for several years by the plaintiff labor
organization under a written contract. The last written agreement
was entered into by the parties on August 20, 1958, and provided
that it should be in full force and effect from July 21, 1958, to
November 15, 1959, and that if the agreement was not canceled
upon 60 days written notice prior to the anniversary date, it
would be considered to be in full force and effect for each
succeeding contract year.
On September 5, 1959, the president of the plaintiff wrote the
manager of the defendant as follows:
"Please accept this letter as notice of our desire
to terminate the Labor Agreement between our
organization and your company, covering the employees
at the Bentonville plant. Such termination is for the
purpose of negotiating a new agreement.
"This is the 60 day written notice required by the
labor agreement now in effect.
"We shall be pleased to meet with you at your
earliest convenience for the purpose of completing
negotiations of a new labor agreement to replace the
present one, prior to its expiration date."
On September 8, 1959, another letter was written by the
president of the plaintiff to the manager of the defendant only
for the purpose of substituting the word "cancel" for the word
"terminate" in the letter of September 5, 1959.
The contract was introduced in evidence as plaintiff's Exhibit
1, and contained provisions fixing the hours, wages, rates of
pay, and working conditions. It also contained provisions for job
posting, seniority, and seniority lists, grievance procedure,
insurance payments and check off of dues. After the notice of
cancellation was given by plaintiff, the parties proceeded to
negotiate from time to time, but were unable to agree upon a new
contract. The chief question in dispute was wages.
During all of the negotiations between the parties the
defendant continued to deduct or check off the dues of the
various employees, maintained a seniority list, and settled some
Since the parties were unable to agree upon a new contract, the
president of the plaintiff on September 16, 1960, submitted
another letter (Plaintiff's Ex. 5), to the then manager of the
defendant, in which he stated:
"Inasmuch as the agreement between our organization
and your company has been extended and the common
expiration date is November 15, please accept this
letter as notice that we desire to cancel the
agreement now in effect for the purpose of
negotiating a new agreement. We desire to meet and
consummate a new agreement prior to the expiration
"This is the 60 day notice required by Article XII
of the agreement now in effect."
On January 31, 1961, prior to the termination of the
negotiations, the defendant discharged the employee, Arlie Bray.
The president of the plaintiff wrote the manager of the defendant
on February 2, 1961 (Plaintiff's Ex. 8), as follows:
"Please accept this letter as notice that our
organization is submitting the grievance for the
discharge of Arlie Bray to arbitration. It is my
understanding from our telephone conversation, today,
that you are refusing to re-instate this employee.
"We contend the accident that occurred on January
31, 1961, was not just cause for discharge.
"It is also my understanding of the telephone
conversation, that you are willing to waive Article
3-A of the Agreement now in effect. We would be
agreeable to use as arbitrator a professor from the
University of Arkansas, who has had considerable
experience in this work.
"May I hear from you at your earliest convenience."
On February 6, 1961, the manager of the defendant wrote the
president of the plaintiff (Plaintiff's ...