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January 19, 1966

A. Seltzer and Company, Inc., et al., Plaintiffs
David Livingston, as President of District 65, RWDSU, AFL-CIO, Defendant

McLean, District Judge.

The opinion of the court was delivered by: MCLEAN

McLEAN, District Judge.

This is a motion to restrain defendant Union from proceeding with arbitration under an agreement between it and certain of the plaintiffs. The motion was brought on by an order to show cause which contained a temporary restraining order staying the arbitration pending the determination of the motion. Defendant has moved to dissolve the temporary restraining order and to dismiss the complaint. *fn1"

 The complaint alleges that this court has jurisdiction of this action under Section 301 of the Labor-Management Relations Act (29 U.S.C. § 185) "as implemented by the Federal Declaratory Judgment Act." Its other allegations may be summarized as follows:

 Plaintiffs are engaged in interstate commerce. On or about April 30, 1965, each of the plaintiffs, except Eagle Supply Co., signed a "recognition form agreement" with defendant Union. *fn2" That document recited that "it has been demonstrated to the Employer's satisfaction that the Union represents a majority of its employees." It went on to provide that the employer recognizes the Union as the sole collective bargaining agent for its employees, that the employer agrees to accept the terms and conditions set forth in collective bargaining contracts between the Union and "a majority of shops under agreement with it," and that in the event the parties fail to agree "as to which terms and conditions are actually in effect in the majority of shops under contract with District 65," that issue shall be submitted to arbitration under the rules of the American Arbitration Association.

 The complaint alleges that the Union refused to show to plaintiffs "proof of designation" (i.e., proof that plaintiffs' employees actually belong to the Union), and that the Union insisted that the employers sign the document without change "on the threat of immediate pickets and stoppage of shipments." It alleges that after negotiations, the plaintiffs and the Union failed to agree on terms and conditions of employment, including wages, etc., and that on July 27, 1965, defendant Union demanded arbitration. It alleges that on July 29, 1965 and on August 5, 1965, another union, not a party to this action, Local 810 of the Steel, Alloys & Hardware Fabricators and Warehousemen, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, filed with the National Labor Relations Board a petition for determination of representation of plaintiffs' employees, that defendant Union advised the Board that it claimed that its contract with plaintiffs was a bar to Local 810's petition, and that the Board ordered a hearing for August 25, 1965 which was subsequently adjourned to September 7, 1965. The complaint alleges that on August 31, 1965, Local 810 filed with the Board unfair labor practice charges against plaintiffs alleging that plaintiffs had violated Section 8(a)(1) and Section 8(a)(2) of the National Labor Relations Act by signing the "recognition agreement" with defendant and by going forward with the arbitration. It alleges that "a justiciable controversy" has arisen as to the validity of the recognition agreement and as to the "propriety of proceeding in face of the charges." The relief asked is that the court enter a declaratory judgment determining the rights of the parties and staying the arbitration proceedings "until after the National Labor Relations Board has determined whether proceedings to arbitrate would violate the National Labor Relations Act."

 Plaintiffs' moving affidavits, verified on September 7, 1965, contain allegations which are substantially the same as those of the complaint. Defendant's opposing affidavit, dated December 2, 1965, points out that there has been a change in the situation since this action was begun in September. On October 5, 1965, plaintiffs signed a collective bargaining agreement with Local 810 in which plaintiffs recognized that union as the representative of their employees. Plaintiffs thus have signed an agreement with each of the competing unions, recognizing each as the representative of plaintiffs' employees. Local 810 thereupon withdrew its unfair labor practice charge, although Local 810's petition asking the Board to determine which union in fact does represent the employees apparently was not withdrawn. To add to the confusion, defendant Union on October 7, 1965, filed with the Board an unfair labor practice charge against plaintiff, and on November 24, 1965, the Board issued a complaint on that charge, alleging that plaintiffs have violated Sections 8(a)(1) and 8(a)(2) of the Act by signing and enforcing the collective bargaining agreement with Local 810 notwithstanding the fact that there was pending "a valid question concerning the representation" of plaintiffs' employees. The Board set this complaint down for a hearing before a Trial Examiner on January 17, 1966.

 The first question to be determined is whether this court has jurisdiction of the subject matter of this action. The declaratory judgment statute, 28 U.S.C. § 2201, is not a jurisdictional statute. It merely empowers the court to grant declaratory relief in an action if it has jurisdiction of that action by virtue of some other statute. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 94 L. Ed. 1194, 70 S. Ct. 876 (1950).

 Consequently, if this court has jurisdiction, it must rest on Section 301(a) of the Act (29 U.S.C. § 185(a)). That section confers upon the district court jurisdiction of "suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce."

 Plaintiffs appear to argue that the "recognition agreement" which they signed with defendant is not a "contract." If this is so, plaintiffs have argued themselves out of court.

 Plaintiffs cite Boston Printing Pressmen's Union No. 67 v. Potter Press, 241 F.2d 787 (1st Cir. 1957), cert. denied, 355 U.S. 817, 2 L. Ed. 2d 34, 78 S. Ct. 21 (1957) and Austin Mailers Union No. 136 v. Newspapers, Inc., 329 F.2d 312 (5th Cir. 1964), cert. dismissed, 377 U.S. 985, 84 S. Ct. 1894, 12 L. Ed. 2d 753 (1964). In Boston Printing, a union sued under Section 301(a) to compel arbitration under an agreement which empowered the arbitrator to determine "all questions regarding a new contract and scale to become effective at the expiration of this Agreement." The arbitrator was to be asked to decide what certain contract terms, notably those relating to vacations, were to be in the future. The court affirmed a dismissal of the complaint on the ground that such a " prospective or quasi-legislative " arbitration was not within the scope of the United States Arbitration Act (9 U.S.C. § 1 et seq.) which provides for arbitration of a controversy arising out of a "contract" involving commerce.

 Austin Mailers followed Boston Printing. An action by a union under Section 301(a) to compel arbitration was dismissed. One of the two grounds of dismissal was that the court lacked jurisdiction because the arbitration clause provided for arbitration of "all disputes arising during the negotiations of any subsequent agreement." The court held that Section 301 does not empower the federal courts to compel arbitration pursuant to a contract between an employer and a labor organization as to future contractual provisions.

 The textwriters have criticized the Boston Printing doctrine. See Note, Quasi-Legislative Arbitration Agreements, 64 Colum. L. Rev. 109, 123 (1964); Katz, Arbitration - Favored Child of Pre-emption, New York University 17th Annual Conference on Labor 27, 34-5 (1964).

 Since Boston Printing was decided, the Supreme Court has decided the Steelworkers cases, which have emphasized the importance of arbitration as the most appropriate method of resolving employees' grievances. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 4 L. Ed. 2d 1403, 80 S. Ct. 1343 (1960); United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960).

 Also since Boston Printing, the Supreme Court has decided Retail Clerks International Association v. Lion Dry Goods, Inc., 369 U.S. 17, 7 L. Ed. 2d 503, 82 S. Ct. 541 (1962), which gave a broad construction to the word "contracts" in Section 301(a). The word is not limited to collective bargaining agreements, nor is it limited to agreements with unions ...

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