Petition for Writ of Certiorari — General Drivers & Helpers Union, Local No. 554 v. Mid-Continent Bottlers, Inc.

Supreme Court brief1985

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m (1 ; Supreme Court, U.S.

85 ~4 V9 FILED

ada aa SEP 5 1995

JOSEPH F. SPANIOL, UR.

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In The 7

Supreme Court of the United States

October Term, 1985

ray

GENERAL DRIVERS AND HELPERS UNION, LOCAL

NO. 554, affiliated with INTERNATIONAL BROTHER-

HOOD OF TEAMSTERS, CHAUFFEURS, WARE-

HOUSEMEN AND HELPERS OF AMERICA,

Petitioner,

vs.

MID-CONTINENT BOTTLERS, INC., (Omaha Division),

an Iowa Corporation,

Respondent.

fay

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

fy.

M. H. Wernsere, P.C.

WernBera & WeErnBERG, P.C.

8901 Indian Hills Drive

Suite 1

Omaha, Nebraska 68114

(402) 397-0999

Attorneys for Petitioner.

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

. Dates 4

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are ae!

QUESTIONS PRESENTED FOR REVIEW

1. Does Section 301 of the Labor Management Re-

lations Act, 29 U.S.C. § 185(a) provide jurisdiction to sue

to enforce a collective bargaining agreement interest ar-

bitration clause?

LIST OF PARTIES AND PRAYER

There are no other parties other than the Petitioner

and Respondent. Teamsters Local No. 554 respectfully pe-

titions for a Writ of Certiorari to review the judgment of

the United States Court of Appeals for the Kighth Cir-

cuit in this case.

iii

TABLE OF CONTENTS

Subject Index

Page

Questions Presented for Review —..... i

List of Parties and Praver . ii

Opinion Below ..... 1

8 TEE EES A a 2

Constitution and Statutory Provisions Involved ........... 2

Statement of the Case

1. Statement of Facts ... 3

2. Proceeding Below 4

Reasons for Granting the Writ

1. The Circuits are in Conflict

Conclusion

INDEX TO APPENDICES

Appendix A. Opinion as Modified on Petition

for Rehearing with Motion for Rehearing and

Brief App. 1

Appendix B. Memorandum Opinion on Damage

and Order App. 35

Appendix C. Labor Agreement App. 45

Appendix D. Section 301 of Labor Management

Relations Act, 29 U.S.C. § 185(a) App. 85

Appendix E. Order on Pre-Trial Conference ........ App.

TABLE OF AUTHORITIES CITED

CASES:

A. Seltzer & Co. v. Livingston, 361 F.2d 218 (2d

Cir.) (Per Curiam) aff’g 253 F. Supp. 509 (S.D.

N.Y., 1966)

Division 892 of Electrical Railway Employees v.

M. K. & O. Transit Inc., 319 F.2d 488 (10th Cir.,

1963), rev’g on other gounds, 210 F. Supp. 351

(N.D. Oklahoma, 1962) Cert. Denied, 375 U.S.

Pages

944, 1963

Greater Kansas City Laborers District Council

v. Builders’ Assoctation, 326 F.2d 867 (8th Cir.,

1964) aff’g 213 F. Supp. 429 ‘W.D. Mo., 1963)

Cert. Denied, 377 U.S. 917 (1964)

Laundry, Dry Cleaning and Dye House Workers

International Union, Local No. 93 of Spring-

field, Missouri v. Robert M. Mahoney, 491 F.2d

1029 (1974)

Mailers Local 136 v. Newspaper, Inc., 329 F.2d

312 (Sth Cir., 1964), aff’g 226 F. Supp. 600 (W.D.

Tex., 1963), Cert. Denied, 377 U.S. 985 (1964) _..

Pressman’s Local 50 v. Newspaper Printing Corp.,

518 F.2d 351 (6th Cir., 1975) aff’g 399 F. Supp.

593 ‘M.D. Tenn., 1974)

Pressman’s Local 318 v. Piedmont Publishing Co.,

393 F.2d 221 (4th Cir., 1968) aff’g 263 F. Supp.

952 (M.D. N.C. 1967) |

Pressman’s Local 67 v. Potter Press, 241 F.2d 787

(1st Cir., 1957) aff’g 141 F. Supp. 553 (D. Mass.

1956), Cert. Denied, 355 U.S. 817 (1957)

Typographical Local 21 v. San Francisco News-

paper Printing Co., 247 F. Supp. 963 (N.D. Cal. 1965)

TABLE OF AUTHORITIES CITED—Continued

Pages

STATUTES:

Labor Management Relations Act, Section 301

29 U.S.C. § 185(a) 2, 5

28 U.S.C. § 1254(1)

No.

7 ——

—

In The

Supreme Court of the United States

October Term, 1985

GENERAL D* "VERS AND HELPERS UNION, LOCAL

NO. 554, affiliated with INTERNATIONAL BROTHER-

HOOD OF TEAMSTERS, CHAUFFEURS, WARE-

HOUSEMEN AND HELPERS OF AMERICA,

Petitioner,

MID-CONTINENT BOTTLERS, INC., (Omaha Division),

an lowa Corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

— ‘

OPINION BELOW

The Eighth Cireuit Court of Appeals held that Section

301 did not apply to interest arbitration and left the final

compensation methods and rates to the parties to nego-

tiate. The only issue left for the arbitrator was whether

the company could impose its final offer in response to

impasse and make the union decide whether to strike.

The Complaint was dismissed by the Circuit Court despite

a request for remand by the Plaintiff to the Distriet Court,

deferring the case to arbitration. The case is not officially

reported yet due to the amendment of the opinion by

the Court. The opinion as modified on Petitien on Re-

hearing is reprinted in Appendix A, Pages App. 29-34,

along with the Motion for Rehearing and Brief.

The District Court held that the issue of future wages

was not arbitrable under Article VI (the grievance sec-

tion), found that Section 301 applies, and in a later part

of the trial entered judgment for $98,774.84. The opinion

on liability, Memorandum Opinion on damage and Order

are in Appendix B, Pages App. 35-44. For the conveni-

ence of the Court, Appendix C, Pages App. 45-84, includes

a copy of the labor agreement.

JURISDICTION

This Court has jurisdiction to review the judgment

of the Court below pursuant to 28 U.S.C. § 1254(1).

CONSTITUTION AND STATUTORY PROVISIONS

INVOLVED

This case invokes Section 301 of the Labor Manage-

ment Relations Act, 29 U.S.C. § 185(a). A copy of Section

301(a) is attached in Appendix D.

STATEMENT OF THE CASE

Statement of Facts

The applicable collective bargaining agreement (here-

inafter referred to as CBA) which is set out in full in

Appendix C, provided for a reopener of two items. (See

Article XXIX) The two items were creation of new jobs

due to institution of a pre-sell agreement and the method

of compensation for bargaining unit members. Reopening

occurred, negotiations followed, and impasse was reached

at which time the employee implemented its final offer

without submitting the issues of reopening to arbitration.

Article XII of the CBA, New Operations, stated the follow-

ing: ‘In the event any new job or job classifications were

created in the general area, covered by the provisions of

this contract, the Employer will enter into negotiations

with the Union for the Purpose of deterriuining the wages,

classifications and other conditions prior to the institution

of such operation. (In the event the parties cannot agree,

the matter shall (emphasis added) be subject to the Griev-

ance Procedure in Article VI).” The Union did not strike

nor file a grievance under Article VI but proceeded to

Court to get a determination of liability for damages un-

der 301 and to see if interest arbitration would be al-

lowed. The Employer-Defendant claimed the only issue

subject to arbitration was whether the employer could

unilaterally implement its offer thus forcing the union

to strike. The Order on Pre-Trial Conference sets out

the issues as is attached in Appendix E.

Proceeding Below

A. THE DISTRICT COURT

The District Court tried the liability and damage por-

tions of the 301 action and held the following:

(1) The suit is not subject to arbitration because it

involved determination of wages.

(2) The damages are $98,774.84.

B. THE COURT OF APPEALS

Mid-Continent appealed and the case was heard before

a three judge panel which ruled:

(1) The only issue to arbitrate is whether the em-

ployer could unilaterally implement its offer thus

forcing the union to strike.

(2) No arbitration could be had to determine wages.

This was only subject to negotiation.

(3) The 301 suit was dismissed.

A Rule 59 Motion for Rehearing was filed timely.

It requested correction of the decision in that the Court

held the Employer was denied in its request for arbitra-

tion, since the stipulations of the parties showed neither

party requested arbitration in the lower court. Petitioner

further requested deferral to arbitration. The Circuit

Court corrected the opinion, denied the rehearing and

ordered dismissal again. There was no deferral to arbi-

tration.

ee |

i Aa Seti rat

‘REASONS FOR GRANTING THE WRIT

The Writ should be granted because of the conflict of

the circuits on the issue of whether there is jurisdiction un-

der Section 301 to grant interest arbitration and the im-

portance of the arbitration issue in resolving industrial

disputes.

(1) The Circuits Are In Conflict.

The more modern decisions of the circuits uphold in-

terest arbitration and mandate specific performance. The

following cases support the principle set out in the previ-

ous sentence:

(a) Pressman’s Local 50 v. Newspaper Printimg Corp.,

518 F. 2d 351 (6th Cir., 1975) aff’g 399 F. Supp.

593 (M.D. Tenn., 1974).

(b) Pressman’s Local 318 v. Piedmont Publishing Co.,

393 F. 2d 221 (4th Cir., 1968), aff’g 263 F. Supp.

952 (M.D. N.C. 1967).

Cir.) (Per Curiam) aff’g 253 F. Supp. 509 (S.D.

N.Y. 1966).

(d) And, Division 892 of Electrical Ratlway Employ-

ees v. M. K. & O. Transit Lines, Inc., 319 F. 2d

488 (10th Cir., 1963), rev’g on other grounds, 210

F. Supp. 351 (N.D. Oklahoma 1962), Cert. Denied,

375 U.S. 944, 1963.

Oddly enough, the Eighth Circuit has spoken on this issue

upholding interest arbitration in Greater Kansas City

Laborers District Council v. Builders’ Association, 326 F.

2d 867 (8th Cir., 1964), aff’g 213 F. Supp. 429 (W.D., Mo.

1963) Cert. Denied, 377 U.S. 917 (1964). And again in

Laundry, Dry Cleaning and Dye House Workers Interna-

tional Union, Local 93 of Springfield, Missouri v. Robert

M. Mahoney, 491 F. 2d 1029 (1974). Judge Heaney, one

of the Judges in this case, upheld interest arbitration.

Other circuits have made the exact opposite deter-

mination on similar or analogous fact patterns:

(a) Pressmen’s Local 67 v. Potter Press, 241 F. 2d

787 (1st Cir., 1957), aff’g 141 F. Supp. 553 (D.

Mass. 1956), Cert. Denied 355 U.S. 817 (1957).

[Decided prior to Steelworkers Trilogy mandat-

ing arbitration. ]

(a) Mailers Local 136 v. Newspaper, Inc., 329 F. 2d

312 (5th Cir., 1964), aff’g 226 F. Supp. 600 (W.D.

Tex., 1963), Cert. Denied 377 U.S. 985 (1964) ; and

(ec) Typographical Local 21 v. San Francisco News-

paper Printing Co., 247 F. Supp. 963 (N.D. Cal.

1965).

In summary, since some Circuits have decided you can

enforce interest or wage arbitration under 301 and others

say no, there is a conflict in the Circuits. A question af-

fecting contractual enforcement of collective bargaining

agreements is worthy of some clarification and especially

so in light of the fact that certiorari has been denied on

both sides of the issue.

oo)

CONCLUSION

For the foregoing reasons, the petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

/s/ M. H. Wernsere, P.C.

WernBerc & WEINBERG, P.C.

8901 Indian Hills Drive

Suite 1

Omaha, Nebraska 68114

(402) 397-0999

Attorneys for Petitioner.

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

For The E1tghth Circuit

U.S. Court & Custom House

1114 Market Street

St. Louis, Missouri 63101

August 20, 1985

Robert D. St. Vrain 314-425-5600

Clerk FTS : 279-5600

Mr. M. H. Weinberg Mr. George C. Rozmarin

8901 Indian Hills Drive Swarr, May Law Firm

Suite 1, 3535 Harney Street

Omaha, Nebraska 68114 Omaha, Nebraska 68131

Re: No. 84-2084-NE General Drivers and Helpers

Union, ete. v. Mid-Continent

Bottlers, Inc., ete.

Dear Counsel:

Enclosed please find copy of order entered today at

the direction of the Court.

Sincerely,

/s/ Linda L. Penberthy

Senior Deputy Clerk

rmh

Enclosure (2)

ee: William L. Olson, Clerk, U. 8. District Court

(82-0-256)

West Publishing Company

Commerce Clearing House

National Center for Automated Information Retrieval

Prentice Hall, Inc.

Bureau of National Affairs

Hon. John B. Jones, United States District Judge

App. 2

UNITED STATES COURT OR APPEALS

For The Eighth Circuit

No. 84-2084-NE

General Drivers and Helpers Union, ete.,

Appellee,

VS.

Mid-Continent Bottlers, Inc., ete.,

Appellant.

Appeal from the United States District Coart

for the District of Nebraska

In response to the appellee’s petition for rehearing,

the opinion is modified by substituting revised page one

(1) attached to this order. The petition is, however, de-

nied by the court.

August 20, 1985

App. 3

UNITED STATES COURT OF APPEALS

For The Eighth Circuit

No. 84-2084

General Drivers and Helpers Union, Local No. 554 affil-

iated with International Brotherhood of ‘Teamsters,

Chauffeurs, Warehousemen and Helpers of America,

Appellee,

VS.

Mid-Continent Bottlers, Inc., (Omaha Division), an Iowa

corporation,

Appellant.

Appeal from the United States District Court

for the District of Nebraska.

Submitted: February 11, 1985

Filed: July 11, 1985

Before LAY, Chief Judge, and HEANEY and FAGG,

Circuit Judges.

FAGG, Cireuit Judge.

Mid-Continent Bottlers, Inc. (the Company) appeals

from the district court’s judgment in favor of the General

Drivers and Helpers Union, Local No. 554 (the Union). The

district court awarded damages on the Union’s claim for

breach of the collective bargaining agreement. We hold

that the dispute is subject to the agreement’s grievance

and arbitration provisions and accordingly reverse the

judgment of the district court.

App. 4

The collective bargaining agreement in effect at the

times relevant to this dispute provides in Article VI for

negotiations and ultimately arbitration of ‘‘[a]ny contro-

versy arising over the interpretation of, or adherence to,

the terms or provisions of

App. 5

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Case No. 84-2484 NE

GENERAL DRIVERS AND HELPERS UNION,

LOCAL NO. 554 affiliated with

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA,

Appellee,

vs.

MID-CONTINENT BOTTLERS, INC. (Omaha Division),

an Iowa Corporation,

Appellant.

PETITION FOR REHEARING

M. H. Weinberg

Weinberg & Weinberg, P.C.

8901 Indian Hills Drive

Suite 1

Omaha, NE 68114

(402) 397-0999

Attorney for Appellee.

App. 6

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Case No. 84-2484 NE

GENERAL DRIVERS AND HELPERS UNION,

LOCAL NO. 554 affiliated with

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA,

Appellee,

Vs.

MID-CONTINENT BOTTLERS, INC. (Omaha Division),

an lowa Corporation,

Appellant.

PETITION FOR REHEARING

COMES NOW the Appellee and requests a rehear-

ing in the above entitled case pursuant to FRAP 40 and

Eighth Circuit Court Rules 15 and 16 based upon the fol-

lowing:

(1) The July 11, 1985 decision held that ‘‘The dis-

trict court denied the Company’s request for arbritration”.

(2) The Order on Pretrial Conference dated Sep-

tember 23, 1983 at paragraph 8 under subtopic C, ‘‘ Uncon-

troverted Facts” held as follows:

‘‘Neither party has filed a grievance pursuant to the

collective bargaining agreement or requested of the

other party that the dispute herein be submitted to

arbitration.”

App. 7

(3) Volume I of the Transcript of the court trial tak-

en March 6, 1985 at page 85 beginning at line 7 discloses

that the Company did not request arbitration and the testi-

mony at page 86 line 4 indicates that the Company felt they

had no right to arbitrate. Further testimony beginning at

page 92, line 19, indicates that the Company would arbi-

trate but would not waive mootness or time limit objec-

tions.

(4) The July 11, 1985 decision did not require arbi-

tration allegedly requested and denied by the district court

upon the request of the Company.

(5) Article VII of the Petition and the Petition’s

prayer requested specific performance of the agreement

which could include arbitration. The union has no objec-

tion to arbitration.

(6) The Order on Pretrial Conference dated Septem-

ber 23, 1983 specifically addressed the arbitration issue

under the topic ‘‘Controverted and Unresolved Issues’’.

WHEREFORE, the Appellee prays for a rehearing

to determine the issue as to whether under this Section

301 action the Eighth Circuit Court of Appeals should re-

quire deferral to arbitration allegedly requested but denied

by the district court to the employer withholding dismissal

of the action until arbitrability of the disptue is determined

or, in the alternative, consider whether arbitration has

been waived by both parties by failing to elect same in a

timely fashion, thus allowing the damage action.

DATED this 13th day of July, 1985.

GENERAL DRIVERS AND HELPERS

UNION, LOCAL 554, Plaintiff and

Appellee,

App. &

By /s/ M. H. Weinberg

Weinberg & Weinberg, P.C.

8901 Indian Hills Dr.

Suite 1

Omaha, NE 68114

(402) 397-0999

CERTIFICATE OF SERVICE

I hereby certify that on this 13th day of July, 1985, I

served a copy of the above and foregoing pleading upon

George Rozmarin, Attorney for the Appellant, at 3535

Harney Street, Omaha, Nebraska, 68131 by United States

Mail, postage prepaid.

/s/ M. H. Weinberg

@ SENDER: Compirte items 1, 2,3 and 4.

Put your address in the “RETURN TO” space on the

reverse side. Failure to do this will prevent this card from

being returned to you. The requrn receipt fee will provide

Ge the name of the son delivered to and the date of

delivery. For additional fees the following services are

available. Consult postmaster for fees and check box(es)

for service(s) requested.

— Pak on Perens

P 428 046 906

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App. 10

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Case No. 84-2484 NE

GENERAL DRIVERS AND HELPERS UNION,

LOCAL NO. 554 affiliated with

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA,

Appellee,

vs.

MID-CONTINENT BOTTLERS, INC. (Omaha Division),

an lowa Corporation,

Appellant.

BRIEF IN SUPPORT OF THE

PETITION FOR REHEARING

M. H. Weinberg, #14435

Weinberg & Weinberg, P.C.

8901 Indian Hills Drive,

Suite 1

Omaha, Nebraska 68114

(402) 397-0999

Attorney for Appellee.

sls Nera Sond t

ESF ae rect a RRR Mi et Soe Les ALATA EIN De ea ae FO

App. 11

IN THE UNITED STATES COURT OF APPEALS

FOR THE HIGHTH CIRCUIT

Case No. 84-2484 NE

GENERAL DRIVERS AND HELPERS UNION,

LOCAL NO. 554 affiliated with

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA,

Appellee,

v3.

MID-CONTINENT BOTTLERS, INC. (Omaha Division),

an lowa Corporation,

Appellant.

BRIEF IN SUPPORT OF THE

PETITION FOR REHEARING

The issue requested to be decided on rehearing is

whether the 301 action should be stayed pending arbitra-

tion or dismissed. The Supreme Court in Drake Bakeries

vs. Bakery Workers, 50 LRRM 2440 held that a stay should

follow a referral to arbitration in a situation involving a

broad arbitration clause under a collective bargaining

agreement covered by New York laws which give the arbi-

trator the right to award damages.

The Plaintiff-Appellee requests the same deferral to

arbitration and requests that the Mandate require the Dis-

trict Court to retain jurisdiction pending the submission

of all issues which are arbitrable to the arbitrator.

The Plaintiff-Appellee is not in default in requesting

such due to the time in bringing this case to Court since

App. 12

this Court held that the Employer requested arbitration

and its request was denied by the District Court.

A copy of the decision is attached.

DATED this 22nd day of July, 1985.

GENERAL DRIVERS AND HELPERS

UNION, LOCAL NO. 554 affiliated

with INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS,

WAREHOUSEMEN AND HELPERS OF

AMERICA, Plaintiff and Appellee,

By /s/ M. H. Wernsere, #14435

Weinberg & Weinberg, P.C.

8901 Indian Hills Drive,

Suite 1

Omaha, Nebraska 68114

(402) 397-0999

CERTIFICATE OF SERVICE

I hereby certify that on this 22nd day of July, 1985,

I served a copy of the above and foregoing Brief in Sup-

port of the Petition for Rehearing upon George C. Roz-

marin, Attorney for the Appellant, at 3535 Harney Street,

Omaha, Nebraska, 68131, by United States mail, postage

prepaid.

A ace PALM Daal acc LT il Beat a) ABN Sth hl

btn

WS lhe sorte” Hin 3. abe een be, ie Nat DEAR Ka A NO.

AA A EN BAP VLBA AAS ARLE ahs TN RA AM Bee

App. 13

DRAKE BAKERIES v. BAKERY WORKERS

Supreme Court of the United States

DRAKE BAKERIES, INC. v. LOCAL 50, AMERI-

CAN BAKERY AND CONFECTIONERY WORKERS

INTERNATIONAL UNION, AFL-CIO, et al., No. 598,

June 18, 1962 \

LABOR MANAGEMENT RELATIONS ACT

—Breach of no-strike clause—Damage action—Stay

pending arbitration —80.8432 —94.80 —94.163 —94.585

—80.565

Employer’s damage action against union, under Sec-

tion 301 of LMRA, for alleged breach of no-strike clause

should be stayed pending arbitration of the damage claim,

where broad arbitration clause in the parties’ contract

covers this claim, in that it applied to all disputes involv-

ing any act of either party or any relation between the

parties, directly or indirectly. Union’s alleged breach of

no-strike clause did not constitute repudiation or waiver of

arbitration of employer’s damage claim.

—Breach of no-strike clause—Arbitration of damage

claim— Waiver —94.24 —80.8432

Union’s failure to seek arbitration until day employer

instituted damage action against union for breach of no-

strike clause did not constitute waiver by union of its right

to insist upon arbitration of such damage claim, since up

to that time the invocation of grievance-arbitration pro-

cedure was up to employer.

—e

On writ of certiorari to the U. S. Court of Appeals for

the Second Cireuit (48 LRRM 2987§ 294 F.2d 399). Af-

firmed.

App. 14

See also 47 LRRM 2612, 287 F.2d 155.

Robert Abelow (Milton Haselkorn, Marshall C. Ber-

ger, and Weil, Gotschal & Manges, with him on the brief),

New York, N. Y., for petitioner.

Howard N. Meyer (Paul O’Dwyer, with him on the

brief), New York, N. Y., for respondent.

Edward Maguire and Herman A. Gray, New York,

N. Y., filed brief for New York State AFL-CIO as amicus

curiae seeking affirmance.

Full Text of Opinion

Mr. Justice WHITE delivered the opinion of the

Court.

The petitioning company brought this action for dam-

ages in the District Court under §301(a) of the Taft-

Hartley Act, alleging that the respondent union had vio-

lated the no-strike clause of the collective bargaining con-

tract between the union and the company. The sole ques-

tion in the case is whether the District Court was correct

in holding that the employer’s claim was an arbitrable mat-

ter under the contract and in ordering a stay of the action

pending completion of arbitration. The Court of Appeals

for the Second Circuit affirmed the judgment of the Dis-

trict Court by an equally divided vote.' This Court granted

1 The Court of Appeals originally heard the appeal before

a three-judge panel, which reversed the judgment below. But

rehearing was ordered before the active judges of the court,

who divided 3-3 on the merits, and by a 4-2 vote withdrew the

panel decision and affirmed the judgment below. The pro-

priety of this procedure was questioned in the petition for cer-

tiorari, but later petitioner abandoned the question.

Pe TE ee Pe ee eT eT OE Ee eT ee oe — “

App. 15

granted certiorari (368 U.S. 975), and set the cause for

argument together with Atkinson v. Sinclair Refining Co.,

ante, ——, 50 LRRM 2433, decided this day.

[FACTS OF CASE]

The company’s business is baking and selling cakes

and other bakery products. On December 16, 1959, the

company notified the union and its employees that because

Christmas and New Year’s would fall on Friday and be-

cause it was desirable to have fresh bakery products to

sell on the Mondays following the holidays, employees

—locates related rulings in Cumulative Digest and

monthly Classification Guide

would not work on the Thursday before Christmas and

New Year’s but would work on the Saturdays following

those holidays. Meetings between the union and the com-

pany on December 18 and December 22 ensued, the com-

pany’s position being that it was exercising management’s

prerogative in rescheduling work, the union’s that the pro-

posed work schedule violated the collective bargaining con-

tract and that the employees were not obligated to work on

December 26 or January 2. A compromise arrangement

was worked out for December 26, and 80 out of 190 employ-

ees reported on that day, a sufficient number to allow pro-

duction to proceed. Further conversations on December

28 were not fruitful, however, and on Saturday, January 2,

the company was unable to produce its goods because only

26 employees reported for work. The company promptly

filed this damage action on January 4, 1960, alleging that

the union instigated and encouraged its members to strike

or not to report for work on January 2, all in violation of

the no-strike clause contained in the collective bargaining

App. 16

contract. No answer has been filed by the union but the

union’s affidavit in support of the motion for stay stated

what its answer would contain an dspecifically denied that

the union had instigated a strike or encouraged its mem-

bers not to work on January 2.

As was true in Atkinson, supra, the issue of arbitra-

bility is a question for the courts and is to be determined

by the contract entered into by the parties. ‘‘* * * [A]

party cannot be required to submit to arbitration any dis-

pute which he had not agreed so to submit.” United Steel-

workers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 46

LRRM 2416. But the contract here is much different

from the agreement in Atkinson. Under Article V* of the

contract: ‘‘The parties agree that they will promptly at-

tempt to adjust all complaints, disputes or grievances

2“Article V—Grievance Procedure

“(a) The parties agree that they will promptly attempt to

adjust all complaints, disputes or grievances arising between

them involving questions of interpretation or application of any

clause or matter covered by this contract or any act or conduct

or relation between the parties hereto, directly or indirectly.

“In the adjustment of such matters the Union shall be rep-

resented in the first instance by the duly designated committee

and the Shop Chairman and the Employer shall be represented

by the Shop Management. It is agreed that in the handling of

grievances there shall be no interference with the conduct of

the business.

“(b) If the Committee and the Shop Management are un-

able to effect an adjustment, then the issue involved shall be

submitted in writing by the party claiming to be aggrieved to

the other party. The matter shall then be taken up for adjust-

ment between the Union and the Plant Manager or other rep-

resentative designated by management for the purpose. If no

mutually satisfactory adjustment is reached by this means, or

in any event within seven (7) days after the submission of the

issue in ee as provided above, then either party shall have

the right to refer the matter to arbitration as herein provided.”

App. 17

arising between them involving questions of interpreta-

tion or application of any cause or matter covered by this

contract or any act or conduct or relation between the

parties hereto, directly or indirectly.”

This is broad language, indeed, and the procedure

' thereafter provided in Article V does not, as did in Atkin-

son, exclude claims or complaints of the employer. It is

provided that in the first instance the union wiil be repre-

sented by a committee and the shop chairman, and the

employer, by the shop manager. Failing adjustment at

this stage, the issue is required to be submitted in writing

by ‘‘the party claiming to be aggrieved to the other party,”

whereupon the union and the plant manager are to attempt

to reach a satisfactory agreement. If agreement is not

reached within seven days from the time the issue is sub-

mitted in writing, either party “shall have the right to

refer the matter to arbitration * * *”

Article V does not stop with disputes ‘‘involving the

interpretation or application of any clause or matter”

covered by the contract. The adjustment and arbitration

procedures are to apply to all complaints, all disputes and

all grievances involving any act of either party, or any

conduct of either party, or any relation between the par-

ties, directly or indirectly. The company asserts that there

was a strike by the union in violation of the no-strike

clause. it therefore has a ‘‘complaint” against the union

concerning the “acts” or “conduct” of the union. There

is also involved a ‘‘dispute” between the union and the

company, for the union denies that there was a strike at

all, denies that it precipitated any strike, denies that the

employees were obligated under the contract to work on

that January 2, and itself claims that the employer

App. 18

breached the contract in scheduling work for the holidays.’

Article V on its face easily reaches the employer’s claim

against the union for damages caused by an alleged strike

in violation of the contract.

[THEORY OF EMPLOYER]

The company earnestly contends that the parties can-

not have intended to arbitrate so fundamental a matter as

a union strike in breach of contract, and that only an ex-

press inclusion of a damage claim by the employer would

suffice to require arbitration. But it appears more rea-

sonable to us to expect such a matter, if it is indeed so

fundamental and so basic to the company under the con-

tract, to have been excluded from the comprehensive lan-

guage of Article V if the parties so intended. In Article

VII,‘ which contains the no-strike provisions, the parties

3 Immediately before the Christmas weekend in 1959, pe-

titioner and respondent exchanged telegrams, in the course of

which exchange respondent charged:

“We have informed you that we did not agree with, or

accept your proposal to amend or alter past practice concerning

holiday weekends. Your proposed schedule and your threats

of disciplinary penalties violates contract and practice. * * *

If you do not retract position we shall demand arbitration.”

4 “Article VII—No Strikes

“(a) There shall be no strike, boycott, interruption of work

stoppage, temporary walkout or lock-out for any reason during

the terms of this contract except that if either party shall fail

to abide by the decision of the Arbitrator, after receipt of such

decision, under Article 6 of this contract, then the other party

shall not be bound by this provision.

“(b) The parties as part of the consideration of this agree-

ment that neither the International Union, the Local Union, or

any of its officers, agents or members, shall be liable for dam-

(Continued on next page)

App. 19

prohibited strikes, insulated the union, its officers and

members from damages for strikes which the union did

not authorize, and agreed that, even in the case of un-

authorized strikes, the company would arbitrate disci-

plinary action taken against the strikers. In the face of

the comprehensive language of Article V, it would have

been most appropriate at this point for the parties to have

excluded from the arbitration procedures the company’s

claim for strike damages, if they had intended to do so.

Instead, the inclusive coverage of Article V was left in-

tact.

Of significance also are certain events which occurred

in August 1959. At that time the company took issue with

union conduct in connection with overtime work. Labeling

this conduct an ‘‘overtime strike” and a ‘‘breach of con-

tract,” the company wrote a letter to the State Mediation

Board of New York saying that the contract with the un-

ion provided for arbitration of disputes before an arbitra-

(Continued from previous page)

ages for unauthorized stoppage, strikes, intentional slowdowns

or suspensions of work if:

“(a) The Union gives written notice to the Company with-

in twenty-four (24) hours of such action, copies of which shall

be posted immediately by the Union on the bulletin board

that it has not authorized the stoppage, strike, slowdown or

suspension of work and

“(b) if the Union further cooperates with the Company in

getting the employees to return and remain at work.

“It is recognized that the Company has the right to take

disciplinary action, including discharge, against any employee

who engages in any unauthorized strike or work stoppage,

subject to the Union’s right to submit to arbitration in accord-

ance with the agreement the question of whether or not the

employee did engage in any unauthorized strike or work stop-

page.”

App. 20

tor appointed by the Board and requesting the appoint-

ment of an arbitrator to “determine the question of breach

of contract and damages suffered by” the company as a

result of the strike. An award of damages against the un-

ion was requested, as was injunctive relief against a con-

tinuance of the overtime strike.’ It would appear, then,

that the company, just four months earlier in 1959, consid-

ered that the fundamental matter of a union-led strike was

a dispute to be arbitrated under the provisions of the con-

tract.®

The company further asserts that even if it agreed

in the contract to arbitrate union violations of the no-

strike clause, it is excused by the union’s breach from pur-

suing the post-breach remedies called for in the contract.

The company does not deny that grievance and arbitra-

tion procedures under this contract—as is true generally

(United Steelworkers v. Warrior & Gulf Nav. Co., 363

U.S. 574, 584, 46 LRRM 2416)—contemplate as a matter

of course the arbitration of many alleged breaches of con-

tract. Indeed, central to the company’s position is its as-

sertion that the union was bound to arbitrate, rather than

strike over, its claim that the company breached the con-

tract by scheduling Saturday work. But in its view, the

5 Apparently the employer’s thought was that the federal

law should borrow the New York rule which is that an ar-

bitrator may award relief in the nature of an injunction, en-

forceable in the courts regardless of the New York statute sim-

ilar to the Norris-LaGuardia Act. Ruppert v. Egelhofer, 3 N.Y.2d

576, 148 N.E.2d 129, 29 LA 775.

6 The union sed arbitration of this dispute, claiming

that there was no arbitrable controversy as to the claimed exist-

ence of an obligation to work overtime. The parties settled

the controversy without conclusive determination of the ar-

bitrability dispute.

App. 21

union’s violation of the no-strike clause is sui generis and

so basic to what the employer bargained for in the contract

and so inherently and ‘‘fundamentally inconsistent with”

the grievance and arbitration procedures that the faithful

observance of the no-strike clause by the union is a con-

dition precedent to the employer’s duty to arbitrate (even

though he has promised to do so), or that the union must

be deemed to have waived, or to be estopped from assert-

ing, its right to arbitrate.

[EFFECT OF STRIKE]

However, this Court has prescribed no such inflexible

rule rigidly linking no-strike and arbitration clauses of

every collective bargaining contract in every situation.’

The company has not attempted, or claimed the right,

either to terminate the entire contract or to extinguish

permanently its obligations under the arbitration provi-

sions. Instead, it has sued for damages for an alleged

strike and, as far as this record reveals, the contract con-

tinued in effect, as did the promises of the parties to arbi-

trate and the promise of the union not to strike. Moreover,

in this case, under this contract, by agreeing to arbitrate

all claims without excluding the case where the union

struck over an arbitrable matter, the parties have nega-

tived any intention to condition the duty to arbitrate upon

7We do not undestand the opinions in Textile Workers

Union v. Lincoln Mills, 353 U.S. 448, 455, 40 LRRM 2113, 2120,

or United Steelworkers v. American Mfg. Co., 363 U.S. 564, 567,

46 LRRM 2414, to enunciate a flat and general rule that these

two clauses are properly to be regarded as exact counterweights

in every industrial setting, or to justify either party to the con-

tract in wrenching them from their context in the collective

agreement on the ground that they are mutually dependent

covenants which are severable from the other promises be-

tween the parties.

App. 22

the absence of strikes. They have thus cut the ground

from under the argument that an alleged strike, auto-

matically and regardless of the circumstances, is such a

breach or repudiation of the arbitration clause by the

union that the company is excused from arbitrating, upon

theories of waiver, estoppel, or otherwise.’ Arbitration

provisions, which themselves have not been repudiated,

are meant to survive breaches of contract, in many con-

texts, even total breach;? and in determining whether one

party has so repudiated his promise to arbitrate that the

other party is excused the circumstances of the claimed

8 in Local 174 v. Lucas Flour Co., 369 U.S. 95, 105-106, 49

LRRM 2717, it was held that a clause requiring the parties to

submit disputes to final determination by arbitration implied

an obligation not to strike over such disputes. Accordingly,

the Court upheld an employer's § 301 breach of contract suit

against the union for strike damages due to a walkout over an

arbitrable dispute. in that case, unlike the present one, the

union conceded that there had been a strike over a grievance

which the union had agreed to submit to arbitration. The only

question in dispute was liability vel non. The union did not

contend that, and the Court did not consider whether, the

employer's damage claim should have been taken to an ar-

bitrator. And, of course, the Court did not consider whether

the union’s breach of the no-strike clause constituted a re-

pudiation or waiver of arbitration of the damage claim.

See In re Pahliberg Petition, 131 F.2d 968 (C.A.2d Cir.);

Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d

978 (C.A.2d Cir.); Pennsylvania Greyhound Lines v. Amalga-

mated Assn., 98 F.Supp. 789, 16 LA 906 (E.D.Pa.), rev’d on other

grounds, 193 F.2d 327, 17 LA 688 (C.A.3d Cir.); Batter Bldg.

Mats. Co. v. Kirschner, 142 Conn. 1, 110 A.2d 464; Heyman

v. Darwins, Ltd., [1942] A.C. 356 (H. L.) (disapproving Jureidini

v. National Br. & ir. Ins. Co., [1915] A. C. 499, 505 (H. L.)). See

also Shanferoke Coal Corp. v. Westchester Serv. Corp., 70 F.2d

297, 299 (C.A.2d Cir.), aff’d, 293 U.S. 449, 453-454.

App. 23

repudiation are critically important.’ In this case the un-

ion denies having repudiated in any respect its promise

to arbitrate, denies that there was a strike, denies that the

employees were bound to work on January 2 and asserts

that it was the company itself which ignored the adjust-

ment and arbitration provisions by scheduling holiday’

work.

In passing § 301, Congress was interested in the en-

forcement of collective bargaining contracts since it would

‘‘promote a higher degree of responsibility upon the par-

ties to such agreements, and will thereby promote indus-

trial peace” (S. Rep. No. 105, 8th Cong., Ist Sess. 17). It

was particularly interested in placing ‘‘sanctions behind

agreements to arbitrate grievance disputes” (Textile

Workers Union v. Lincoln Mills, 353 U.S. 448, 456, 40

LRRM 2113, 2120). The preferred method for settling dis-

putes was declared by Congress to be ‘‘final adjustment

by a method agreed upon by the parties” (4 203(d) of the

Act, 29 U.S.C. § 173(d)). ‘*That policy can be effectuated

only if the means chosen by the parties for settling their

damages under the collective bargaining agreement is

106 Corbin, Contracts § 1443 (1961 Supp., n. 34, pp. 192-

193) states:

“The effect of a repudiation upon the repudiator’s right to

arbitration should depend on the character of his so-called

‘repudiation’ and the reasons given for it. One who flatly re-

pudiates the provision for arbitration itself should have no right

to the stay of a court action brought by the other party. But

mere nonperformance, even though unjustified, is not per se

a ‘repudiation.’ One who asserts in good faith that the facts

justify him in refusing performance of other provisions in the

contract should not thereby lose his right to arbitration that

he would otherwise have had. There is no inconsistency in his

demanding arbitration at the same time that he asserts his

legal privilege not to proceed with performance.”

App. 24

given full play” (United Steelworkers v. American Mfg.

Co., 363 U.S. 564, 566, 46 LRRM 2414). Under our federal

labor policy, therefore, we have every reason to preserve

the stabilizing influence of the collective bargaining con-

tract in a situation such as this. We could enforce only the

no-strike clause by refusing a stay in the suit for dam-

ages in the Dis:rict Court. We can enforce both the no-

strike clause and the agreement to arbitrate by granting a

stay until the claim for damages is presented to an arbi-

trator. This we prefer to do."

[OTHER CASES]

Petitioner relies upon decisions by various Courts of

Appeals, denying stays of damage suits for breach of

no-strike clauses for want of arbitrability of the dispute.”

Most of them, however, involved far more narrowly drawn

arbitration clauses than that which is involved here.’ And

11 Cf. Boone v. Eyre, 1 H. Bl. 273, 126 Eng. Rep. 160 (K. B.

1777) (L. Mansfield): “* * * [W]here mutual covenants go to

the whole of the consideration on both sides, they are mutual

conditions the one precedent to the other. But where they go

only to a part, where a breach may be paid for in damages,

there the defendant has a remedy on his covenant and shall

not plead it as a condition precedent.” See also Dermott v.

Jones, 23 How. 220, 231.

12These cases are collected in the withdrawn decision of

the three-judge panel of the Court of Appeals, 287 F.2d 155,

158 n. 4, 47 LRRM 2612. See also Vulcan-Cincinnati Inc. v.

United Steelworkers, 289 F.2d 103, 48 LRRM 2008 (C.A. 6th Cir.).

13 Eg. United Furniture Workers v. Colonial Hardwood Co.,

168 F.2d 33, 22 LRRM 2102 (C.A.4th Cir.), where arbitration was

limited to employee grievances over wages, hours, or working

conditions, as in Atkinson v. Sinclair Refining Co., ante, —,

50 LRRM 2433 and United Automobile Workers v. Benton

Harbor Indus., 242 F.2d 536, 39 LRRM 2689 (C.A.6th Cir.);

(Continued on next page)

App. 25

in at least two Court of Appeals decisions involving clauses

of comparable breadth to that of the instant case, violations

of no-strike clauses have been held to be arbitrable and

suits for damages have been stayed pending arbitration.”

This Court held in Mastro Plastics Corp. v. Labor

Board, 350 U.S. 270, 37 LRRM 2587, that an employer did

not have the right to replace employees who had struck

over employer unfair labor practices, in the face of an ab-

solute no-strike clause. It was said that, despite the broad

prohibition of strikes in the contract, the parties could not

have intended to waive the employees’ right to strike over

a flagrant unfair labor practice, absent an express state-

ment in the contract to that effect. The company urges

that Mastro precludes the resuit we have reached in this

ease. Mastro, however, involved a flagrant unfair labor

practice by the company threatening the very existence of

the union itself. A strike in violation of contract is not

(Continued from previous page)

Cuneo Press. Inc. v. Kokomo Union, 235 F.2d 108, 38 LRRM

2330 (C.A.7th Cir.), where arbitration was limited to employee

grievances. But see United E. R. & M. Wkrs. v. Miller Metal

Prods., Inc., 215 F.2d 221, 34 LRRM 2731 (C.A.4th Cir.) (“all

differences, disputes and grievances that may arise between

the parties to this contract with respect to the matters covered

in this agreement’); Market Elec. Prods., Inc. v. United E. R.

& M. Wkrs., 202 F.2d 435, 19 LA 849, 20 LA 147 (C.A.2d Cir.)

(‘difference * * * as to the meaning and application of the

provisions of this agreement * * * or any trouble of any kind

* * * in the plant”).

14 Signal Stat Corp. v. Local 475, 235 F.2d 298, 38 LRRM

2378 (C.A.2d Cir.); Yale & Towne Mfg. Co. v. Local 1717, — F.2d

—, 49 LRRM 2652 (C.A.3d Cir.). See id., at — n. 5, collecting

authorities from lower courts. Under New York law, broad ar-

bitration clauses permit arbitrators to award damages. See

he of Publishers Assn., 8 N.Y.2d 414, 171 N.E.2d 323, 35

App. 26

per se an unfair labor practice’ and there is no suggestion

in this record that the one-day strike involved here was of

that nature. We do not decide in this case that in no cir-

cumstances would a strike in violation “f the no-strike

clause contained in this or other contracts entitle the em-

ployer to rescind or abandon the entire contract or to de-

clare its promise to arbitrate forever discharged or to

refuse to arbitrate its damage claims against the union.

We do decide and hold that Article V of this contract obli-

gates the company to arbitrate its claims for damages from

forbidden strikes by the union and that there are no cir-

cumstancés in this record which justify relieving the com-

pany of its duty to arbitrate the consequences of this one-

day strike, intertwined as it is with the union denials that

there was any strike or any breach of contract at all.

If the union did strike in violation of the contract,

the company is entitled to its damages; by staying this

action, pending arbitration, we have no intention of de-

priving it of those damages. We simply remit the company

to the forum it agreed to use for processing its strike dam-

age claims. That forum, it is true, may be very different

from a courtroom,'® but we are not persuaded that the

remedy there will be inadequate. Whether the damages to

be awarded by the arbitrator would not normally be ex-

pected to serve as an ‘‘effective” deterrent to future

15 United Mine Workers v. Labor Board, 257 F.2d 211, 42

LRRM 2264 (C.A. D.C. Cir.); Lodge No. 12 v. Cameron Iron

Works, Inc., 257 F.2d 467, 473, 42 LRRM 2431 (C.A.5th Cir.);

see Dowd Box Co. v. Courtney, 368 U.S. 502, 513, 49 LRRM

2619; H.R. Conf. Rep. No. 510, 80th Cong., 1st Sess. 41-42.

16 Bernhardt v. Polygraphic Co., 350 U.S. 198, 203, 25

LA 693.

App. 27

strikes, which the company urges, is not a question to be

answered in the abstract or in general terms. This ques-

tion, as well as what result will best promote industrial

peace, can only be answered in the factual context of par-

ticular cases. Here, the union claims it did not call a strike

and that the men were not bound to work on January 2,

basing its claim upon years of past practice under the con-

tract. The dispute which this record presents appears to

us to be one particularly suited for arbitration, if the par-

ties have agreed to arbitrate. We hold that they did so

agree and will hold the company to its bargain.

[UNION NOT IN DEFAULT]

A final matter is the company’s suggestion that the

union is not entitled to a stay because it has not proceeded

with dispatch in seeking arbitration. The District Court

held that the union was not in default, and we agree. If

the company had a claim for damages, the contract pro-

vided for the company’s attempting to adjust its claim

by consulting with the union. Failing this, either party

could take the matter to arbitration. The company’s claim

arose out of events which occurred on January 2. This

case was filed on January 4. This was the first occasion

for the union to insist upon its right to arbitrate the em-

ployer’s claim for damages. This it promptly did by mov-

ing for a stay in the District Court.'’ As its conduct shows

in a previous situation, the employer was aware of the pro-

cedure to be followed."* It should have followed it here.

17 Compare Shanferoke Coal Corp. v. Westchester Serv.

Corp., 70 F.2d 297, 299 (C.A.2d Cir., Hand, J.), aff’d, 293 U.S.

449, 453-454, with Lane, Ltd. v. Larus & Bro. Co., 243 F.2d 364

(C.A.2d Cir.).

18 See text accompanying notes 4-5, supra.

App. 28

- For the foregoing reasons, the judgment affirming the

opinion of the District Court was correct, and, on the

merits, the panel decision properly withdrawn.

Affirmed.

Mr. Justice FRANKFURTER took no part in the

consideration or decision of this case.

Dissenting Opinion

Mr. Justice HARLAN, dissenting.

The question presented in this case is whether the

parties to this collective bargaining agreement intended

that a court, rather than an arbitrator, should decide the

employer’s claim that the union had violated the no-strike

clause of the agreement. Whether a strike in breach of

contract has occurred, and if so, what damages have been

suffered, are matters with respect to which a court of law

can hardly be deemed less competent, as an adjudicator,

than an arbitrator. There is no special reason to sup-

pose that the parties preferred to submit this kind of a

dispute to an arbitrator whose expertise is more likely to

be in the area of employees’ grievance claims, as in United

Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S.

574, 580-582, 46 LRRM 2416; United Steelworkers v. En-

terprise Wheel & Car Corp., 363 U.S. 593, 597-598, 46

LRRM 2423. The less so, from the standpoint of the em-

ployer, when it is recognized that any damages awarded

by an arbitrator would not be self-enforcing.

It would require more persuasive evidence than either

this collective agreement or record affords to persuade me

App. 29

that it was contemplated that the employer would forego

his statutory remedy under § 301 respecting alleged vio-

lations of the no-strike clause of the collective agreement.

I would reverse the judgment below substantially for the

reasons given in the panel opinion of the Court of Appeals,

287 F.2d 155, 47 LRRM 2612.

UNITED STATES COURT OF APPEALS

For The Eighth Circuit

No. 84-2084

General Drivers and Helpers Union, Local No. 554 affil-

iated with International Brotherhood of Teamsters, Chauf-

feurs, Warehousemen and Helpers of America,

Appellee,

VS.

Mid-Continent Bottlers, Inc. (Omaha Division), an lowa

corporation,

Appellant.

Appeal from the United States District Court

for the District of Nebraska.

Submitted: February 11, 1985

Filed: July 11, 1985

Before LAY, Chief Judge, and HEANEY and FAGG,

Circuit Judges.

FAGG, Circuit Judge.

App. 30

Mid-Continent Bottlers, Inc. (the Company) appeals

from the district court’s judgment in favor of the General

Drivers and Helpers Union, Local No. 554 (the Union).

The district court denied the Company’s request for arbi-

tration aid awarded damages on the Union’s claim for

breach of collective bargaining agreement. We hold that

the dispute is subject to the agreement’s grievance and

arbitration provisions and accordingly reverse the judg-

ment of the district court.

The collective bargaining agreement in effect at the

times relevant to this dispute provides in Article VI for

negotiations and ultimately arbitration of ‘‘[a]ny contro-

versy arising over the interpretation of, or adherence to,

the terms or provisions of this Agreement.” In Article

XXIX, the parties provided for reopener of portions of

the agreement “should the Employer elect to go to an ad-

vance sell-system.” The reopener is

limited to the issue[. ] of * * * a change in the method

of compensation * * * for employees currently classi-

fied as route salespersons who could continue to de-

liver product under an advance sale system, from

commission to base rate plus commission, an hourly

basis, or any other payment method determined by

the Employer to be appropriate.

Article XX generally prohibits all strikes and lockouts,

but Article XXIX makes Article XX ‘‘inoperative until

an agreement is reached” if ‘‘the parties are unable to

negotiate an agreement during the reopener.”

In December 1980, the Company notified the Union

of its intent to exercise the reopener. After six months of

negotiations, the Union rejected the Company’s final of-

fer, and the parties were at impasse. The Company then

App. 31

unilaterally implemented its final offer in July 1981, trans-

ferring some of the sales function previously performed

by Union members out of the bargaining unit and effec-

tively reducing Union members’ earnings. In May of

1982, the Union filed an action for damages for breach of

the agreement in the district court of Nebraska, contend-

ing that the Company could not unilaterally alter the com-

pensation system during the life of the agreement.

Although the district court did not ‘‘think that [this]

is the type of issue that requires arbitration,” it recog-

nized that resolution of the dispute required interpreta-

tion of Article XXIX. It then held that, while the Com-

pany had authority under Article XXIX to change the

duties of Union members, the Company violated the agree-

ment by imposing a new compensation system that re-

sulted in lower salaries for Union members. The Com-

pany appeals, claiming that the dispute is subject to the

grievance and arbitration procedures of Article VI and

that the district court consequently lacked jurisdiction to

pass on the merits.

A party’s assent to arbitration, as a matter of con-

tract construction, is a question of law for the court. Jnter-

national Union, UAW v. General Electric Co., 714 F.2d

830, 831-32 ,o.h Cir. 1983). Our review is guided by the

overwhelming federal policy in favor of arbitration of

labor disputes. ‘‘ An order to arbitrate a grievance should

be granted ‘‘unless it may be said with positive assurance

that the arbitration clause is not susceptible of an interpre-

tation that covers the asserted dispute. Doubts should be

resolved in favor of coverage.” Jd. at 832. (quoting

United Steelworkers of America v. Warrior & Gulf Navi-

gation Co., 363 U.S. 574, 582-83 (1960)). This court is

App. 32

‘‘obliged to give broad and liberal interpretation to arbi-

tration clauses in collective bargaining agreements.” Bon-

mot v. Congress of Independent Unions Local #14, 331

F.2d 355, 358 (8th Cir. 1964).

Clearly, the contention of the Company that a right

existed under the contract unilaterally to implement its

final offer to the Union upon reaching impasse in reopener

negotiations presented a controversy over interpretation

of or adherence to the bargaining agreement within the

arbitration provision. The Union claims, however, that

resolution of the dispute is beyond the power of any arbi-

trator because it requires setting wages for jobs not de-

scribed in the agreement. In addition, the Union claims

that its reservation of a right to strike over wage dis-

putes during reopener evidences an intent to exclude this

dispute from arbitration. We find neither contention per-

suasive.

First, the Union claims the only matter for resolution

is the amount of compensation the bargaining unit mem-

bers should have received after the Company implemented

its new sales program. According to the Union, an arbitra-

tor is incapable of setting compensation rates for jobs not

described in the agreement. The Union’s contention, how-

ever, ignores the question of whether the Company’s uni-

lateral action violates the agreement at all. Resolution of

that question is committed by Article VI to arbitration.

Second, the Union claims that, by reserving the right

to strike if the parties failed to reach agreement on the re-

opener, arbitration over reopener disputes was not in-

tended to be exclusive. We do not believe the strike-lockout

clause in Article XXIX affects the Company’s right to

App. 33

have this dispute over ‘‘the interpretation of, or adher-

ence to” the bargaining agreement arbitrated. Even if the

Union could have removed the dispute from the arbitra-

tion requirement by calling a strike when the parties

reached impasse, it did not do so. Instead, it sought a judi-

cial determination that the Company’s unilateral action

violated the agreement. Under Article VI, that determina-

tion has been committed to arbitration. “The right to have

all controversies over interpretation of or adherence to

the provisions of the bargaining agreement submitted to

and determined by arbitration was one existing in favor

of both parties. Neither could deprive the other of any

aspect of the right either in scope or in incident.” Minne-

sota Joint Board, Amalgamated Clothing Workers of

America v. United Garment Manufacturing Co., 338 F.2d

195, 198 (8th Cir. 1964).

The arbitrator’s decision is not rendered meaningless

because a strike or lockout may follow the decision. If the

arbitrator decides that the agreement permits the uni-

lateral action taken by the Company, the Union is free to

strike. If the arbitrator decides against the Company, the

Company is free to lockout. The final compensation

methods and rates are for the parties to negotiate. The

question posed by the Union in this case, whether the Com-

pany could impose its final offer in response to impasse

and make the Union decide whether to strike, is for the

arbitrator. No room remains for litigation.

This dispute presents a question which on its face is

subject to arbitration and we find nothing in the agree-

ment that excludes it from the arbitration procedure.

Thus, the district court committed error by deciding the

case on the merits. Accordingly, we reverse the judgment

App. 34

of the district court and the case is remanded with direc-

tions to dismiss the complaint.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

App. 35

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 84-2484-NE

GENERAL DRIVERS AND HELPERS UNION, LOCAL

NO. 554, Affiliated with INTERNATIONAL BROTHER-

HOOD OF TEAMSTERS, CHAUFFEURS, WARE-

HOUSEMEN AND HELPERS OF AMERICA,

Plaintiff-Appellee,

Vs.

MID-CONTINENT BOTTLERS, INC.,

(Omaha Division), An Iowa Corporation,

Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF NEBRASKA

HONORABLE JOHN B. JONES,

UNITED STATES DISTRICT JUDGE

BRIEF OF APPELLANT

GEORGE C. ROZMARIN

Swarr, May, Smith & Andersen, P.C.

3535 Harney Street

Omaha, NE 68131

(402) 341-5421

Attorneys for Defendant-Appellant

App. 36

ADDENDUM

DOCUMENT Page

RULING ON LIABILITY A

MEMORANDUM OPINION (July 31, 1984) F

JUDGMENT (July 31, 1984) 1

CONTRACT EXCERPTS (ARTS. VI. XX, pe ek Ge

App. 37

(p. 142) How long it is going to take me to read this ma-

terial again and the exhibits and decide the case, if I con-

clude it is going to take me an hour or two, I will have

Miss Porter let you know and tell you when to come back.

If I conclude that I can decide it in the next half hour, then

I will just have you stay and we will resolve it.

I do appreciate and I want to express that now the

expeditious way that both sides have presented the case

and we will, hopefully, not take up too much of your time

here while it is under deliberations.

We will be in recess fifteen minutes.

(At which time a recess is taken)

THE COURT: I have no doubt, if I took this case

back to Sioux Falls with me and with the assistance of my

law clerks, I could draw up a written memorandum opin-

ion that would be, perhaps, a good deal more polished

than what I am going to do this afternoon. But, I think

that this case has been going long enough and the issues

are simple enough that I feel comfortable deciding the mat-

ter now.

Let me say that I will follow the pretrial conference

order in which the parties have agreed that the issues of

liability and the extent of the remedy would be bifurcated

and I’m not going to try to discuss in any manner the

remedy now. We will talk about it for (p. 143) a moment

afterwards, about scheduling.

The issue here, as I see it, is whether or not the Em-

ployer defendant here acted properly in placing into

App. 38

effect the Addendum Exhibit 2 when it did so July 20th,

1982. It-is my view that the action of the National Labor

Relations Board did not preclude this Court from con-

sidering that issue. I also find that Article VI of the

Agreement which requires that disputes over the Con-

tract must be made the subject of abitration does not

preclude this Court from deciding the issue of the valid-

ity of the Addendum either.

The grievance procedure in this Contract relates to

grievances from the interpretation of the Contract. Now,

I recognize the relationship of the parties is bound up

in this Contract and that the contacts between the parties,

all contacts, have some relationship to this Agreement.

But, in determining whether this Addendum is correct

or not I don’t think that is the type of issue that requires

arbitration under Article VI of this Contract. I think

that to determine whether or not the Addendum is proper

or not requires this Court to look at and construe Article

XXIX which is the Reopener and it is my view that the

provision of the first sentence which reads, ‘‘should the

Employer elect to go to an advance sell-system”’ clearly

indicates to me that the parties (p. 144) contemplated

that the Employer might, within the terms of the Agree-

ment, go to a pre-sale and advance sell-system and it is

my judgement and my view that the fact that they did

so did not violate this Contract.

Now, the next question is did the fact that they

properly went to an advance sell-system give tuem the

right to do the rest of the things that they did? It is

my finding that it did not. The parties in Article XXIX

have a Reopener Clause which gives the parties the right

to reopen in two issues: One, the method of compensa-

App. 39

tion on the route sales-people and secondly, which new

employees, and I want to emphasize the word ‘‘new’’,

which new employee positions, if any, created by the ad-

vanee sell-system should be included within the term of

or as ‘‘employees’’ under this Agreement.

Now, it is my view that when the parties reopened

this Contract on those two issues that the fact of re-

opening did not wipe out the contract. The Contract

that the parties had entered into is still effective. It is

still valid. It is my opinion also that the fact that there

was an impasse did not wipe out the Contract and I re-

ject the position of the defendant that the fact that the

Reopener provision provides that the parties can either

strike or lockout is evidence that the parties intended

that an impasse would wipe out the provisions of (p. 145)

the Contract as it relates to the compensation of the

route people.

And the reason I reach that position is this: Article

XX relates not only to strikes but also to lockouts.

When the impasse was reached the parties here had

three options in total: First, when they didn’t reach

agreement the Union could strike. They weren’t obli-

gated to do so. The other thing that could happen is

that the Employer could lock out the people and say,

‘Tf you don’t egree, we are going to lock you out.’’

They were not required to do that. The third thing

they could do is what did happen. They didn’t have

either a strike or lockout, but elected to go on and fight

the battle here.

It is my view and judgment that the action of the

defendant in unilaterally changing the compensation of

App. 40

the route sales-people, as set out in this Addendum,

violated the Contract. Now, it is my opinion further

that this period for which the parties are going to be

faced with determining a remedy is limited to the period

from July 20th to the end of the Contract. Now, the

parties entered into a new Contract voluntarily as of

January Ist, 1983. I don’t know that if either party

would suggest that, ‘‘If we had known, Judge, how you

were gong to rule, we would have entered into a different

(p. 146) contract.’’ But, let me say in advance that

that position is not, in my opinion, valid. The parties

fought out this battle on a rather limited period of time

and any remedy will be limited and must be limited to

that period of time.

The parties indicated to me in the pretrial and in

your memorandums that you would be able to work out

the nature or the extent of the remedy. I’m going to

inquire of each of you, how long do you think that pro-

cess is going to take? How much time do you want?

MR. WEINBERG: Within 30 days.

MR. ROZMARIN. Your Honor, I don’t know that

30 days will be ample. I’m not even certain what would

be entailed in the accounting and the negotiation of a

formula to be applied. I think 60 days might be a more

logical time frame. I might wish to consult with my

client in that respect.

(Off the record discussion)

MR. ROZMARIN: Perhaps we could have a 60 day

period in which to report to you and, if it looks like

App. 41

that is not ample time, I’m sure it could be extended.

What we do want, of course, is the Court to retain

jurisdiction and not allow a final order to be entered

until we get to the point of the resolution of damages

for purposes of appeal or otherwise.

App. 42

UNITED STATES DISTRICT COURT

DISTRICT OF NEBRASKA

CIV 82-0-256

GENERAL DRIVERS AND HELPERS UNION,

LOCAL NO. 554, affiliated with INTERNATIONAL

BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,

WAREHOUSEMEN AND HELPERS OF AMERICA,

Plaintiffs,

-VSs-

MID-CONTINENT BOTTLERS, INC.,

(Omaha Division), an Iowa Corporation,

Defendant.

APPEARANCES:

For the Plaintiff Mr. M. H. Weinberg

Attorney at Law

8901 Indian Hills Drive, #1

Omaha, Nebraska, 68114

For the Defendant ...................Mr. George C. Rozmarin

Attorney at Law

3535 Harney Street

Omaha, Nebraska 68131

MEMORANDUM OPINION

(Filed July 31, 1984)

Trial of the liability and remedy portions of this

action were bifurcated, with the lability portion having

been tried on March 6, 1984. The Court found for the

plaintiff on the issue of liability, for the reasons stated

on the record at the conclusion of the liability trial.

The remedy portion of the trial was tried on July

27, 1984. I find that the plaintiff is entitled to judgment

against the defendant for $98,774.84, computed as wages

due drivers of $95,274.84, and auditing costs of $3,500.00.

App. 43

The route salespersons were compensated on a per-

case basis under the labor contract sued on. When de-

fendant instituted a pre-sell program, nine route sales-

persons had their wages substantially reduced on the

basis that their jobs had been changed and reduced in

scope.

Defendant argues that the apples changed to oranges,

but I disagree. I believe what had been large, Delicious

apples turned into medium-sized, Winesap apples. Ex-

hibit 1 reeaps the lost income to the drivers at $95,274.84,

and plaintiff is entitled to recover this amount.

Plaintiff also seeks to recover attorneys fees of

$9,375.00 based on 125 hours of work at $75 per hour.

Attorneys fees incurred in bringing a § 301 action do not

arise to the status of compensatory damages. Cronin v.

Sears, Roebuck & Co., 588 F. 2d (8th Cir. 1978). While

the defendant breached the contract, the evidence would

not support a finding that it did so in bad faith, vexa-

tiously, wantonly or for oppressive reasons.

I conclude that the expenses of auditing the records

to determine the amount of damages would constitute prop-

er compensatory damages. The evidence established this

cost at between $3,500 and $4,500, and I will adopt the

lesser of the two figures.

The Clerk of Courts is directed to enter judgment

for the plaintiff in the amount of $98,774.84, and the

plaintiff is entitled to recover its taxable costs herein.

Dated this 30th day of July, 1984.

BY THE COURT:

/s/ Joun B. JoNnzEs

United States District Judge

App. 44

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

CV 82-0-256

GENERAL DRIVERS AND HELPERS UNION,

LOCAL NO. 554, affiliated with INTERNATIONAL

BROTHERHOOD OF TEAMSTERS, CHAFFEURS,

WAREHOUSEMEN AND HELPERS OF AMERICA,

Plaintiffs,

-Vs-

MID-CONTINENT BOTTLERS, INC.,

(Omaha Division), an Iowa Corporation,

Defendant.

JUDGMENT

(Filed July 31, 1984)

This action came on for trial before the Court, The

Honorable John B. Jones, Judge, presiding, and the

issues having been duly tried and the Court having duly

rendered its decision.

IT IS ORDERED AND ADJUDGED that the

Plaintiff, General Drivers and Helpers Union, Local No.

554, affilated with International Brotherhood of Team-

sters, Chauffeurs, Warehousemen and Helpers of Ameri-

ea, recover form the Defendant, Mid-Continent Bottlers,

Inc., the sum of Ninety Eight Thousand Seven Hundred

Seventy Four Dollars and Eighty-four Cents ($98,774.84),

with interest thereon at the date of twelve point seven-

teen per cent per annum, and taxable costs of this action.

Dated at Omaha, Nebraska, this 3lst day of July,

1984.

WILLIAM L. OLSON

Clerk of the Court

By /s/ Patricia K. KimpBa.i

Deputy Clerk

—— ey ae

EEE

App. 45

APPENDIX C

AGREEMENT

This Agreement, made and entered into the 1st day

of January, 1980, by and between:

MID-CONTINENT BOTTLERS, Inc. (Omaha Division)

hereinafter referred to as the ‘‘Employer’’, and General

Drivers and Helpers, Local #554, or Successor, of Omaha,

Nebraska, affiliated with the International Brotherhood

of Teamsters, Chauffeurs, Warehousemen and Helpers of

America, hereinafter designated as the ‘‘Union’’.

WHEREAS, both parties are desirious of preventing

strikes and lockouts and other cessations of work and

employment; and of maintaining a uniform wage scale,

working conditions and hours of the employees of the

Employer, and of facilitating peaceful adjustment of all

grievances which may arise from time to time between

the Employer and his Employees; and of promoting and

improving peaceful industrial and economic relations be-

tween the parties.

WITNESSETH:

ARTICLE I

RECOGNITION

Section 1. The Employer agrees to recognize and

does hereby recognize the Union, its Agents, Representa-

tives, or Successors, as the exclusive bargaining agency

for all of the employees of the Employer as herein de-

fined.

Section 2. The Employer agrees not to enter into

any agreement with another labor organization during

the life of this Agreement with respect to the employees

covered by this Agreement; or any agreement or con-

tract with said employees, individually or coilectively,

which in any way conflicts with the terms or provisions

of this Agreement, or which in any way affects wages,

hours, or working conditions of said employees, or any

individual employee, or which in any way may be con-

sidered a proper subject for collective bargaining. Any

such agreement shall be null and void.

Section 3. The Employer agrees not to hire any out-

side agency to do work covered by any classification in

this Agreement for a lower rate of pay than called for

in this Agreement.

Section 4. The Employer agrees that it will not inter-

fere with, restrain, coerce, or discriminate against any

of its employees in connection with their membership in

the Union.

Section 5. In the event the Nebraska Labor Laws and

the Taft-Hartley Act or either of them, pertaining to

Union Security be repealed or amended to permit a Union

Security clause, then this Article shall be open for im-

mediate negotiations to include therein a Union Security

clause that may be agreed upon by the parties.

Section 6. The term ‘‘Employee’’ as used in this

Agreement shall include all Route Salespersons, Syrup

Mixer, Filled Operators, Production, Warehouse and Main-

App. 47

tenance Employees, Cooler and Vender Employees, and

Office Employees, Mechanics and Mechanics Helpers and

Working Foreperson of the Employer working at the

Kmployer’s plant in Omaha, Nebraska, unless specifically

excepted by another provision of this Agreement.

Section 7. The Employer agrees that it will not direct

or require their employees or persons other than the em-

ployees in the bargaining units here involved, to perform

work which is recognized as the work of the employee in

said units, except in the case of emergency.

ARTICLE II

TRANSFER OF COMPANY TITLE OR INTEREST

This Agreement shall be binding upon the parties

hereto, their successors, administrators, executors and as-

signs. In the event an entire operation or any part there-

of is sold, leased, transferred or taken over by sale, trans-

fer, lease, assignment, receivership or bankruptcy proceed-

ing, such operation shall continue to be subject to the

terms and conditions of this Agreement for the life

thereof. It is understood by this section that the parties

hereto shall not use any leasing device to a third party

to evade this Contract. The Employer shall give notice

of the existence of this Agreement to any purchaser, trans-

feree, lesee, assignee, etc. of the operation covered by the

Agreement or any part thereof. Such notice shall be in

writing, with a copy to the Union not later that the effec-

tive date of the sale.

App. 48

ARTICLE II

CHECK-OFF

The Employer agrees to deduct from the pay of all

employees covered by this Agreement, dues, initiation

fees and assessments of the Local Union having juris-

diction over such employees and agrees to remit to said

Local Union all such deductions. Where law requires a

written authorization by the employee, the same is to be

furnished in the form required. No deduction shall be

made which is prohibited by applicable law. Check-off

procedures and times shall be worked out locally.

The Union shall indemnify, defend and save the Em-

ployer harmless against any and all claims, demands,

suits or other form of liability that shall rise out of or

by reason of action taken by the Employer in reliance

upon payroll deductions, authorization cards or certified

lists submitted by the Union to the Employer.

ARTICLE IV

WAGES

Attached hereto are schedules showing the classifi-

cation and wage rates of the employees covered by this

Agreement. Said schedules further set forth other de-

tails of employment. It is mutually agreed that said

schedules and the contents thereof shall constitute a part

of this Agreement.

ARTICLE V

HIRING — DISCHARGE

Section 1. No employee, except during the first sixty

(60) days of employment, shall be discharged without just

App. 49

cause and unless given at least one (1) warning notice

against such employee, in writing and a copy to the Union

and the Union Steward, except that no warning notice need

to be given to an employee before the employee is dis-

charged if the cause of such discharge is and of the follow-

ing:

A. Dishonesty.

B. Consuming intoxicants while on duty.

C. Reporting to work under the influence of drugs

or consumption of drugs on the job, other than

under a doctor’s prescription, sale or distribu-

tion of drugs (drugs as used herein includes

marijuana).

D. Causing injury to a fellow employee through de-

liberate action or gross negligence.

E. Recklessness resulting in a serious accident while

on duty.

F. Carrying of unauthorized passengers.

It is recognized that the Employer at its option may at

any time temporarily suspend rather than discharge an

employee.

Section 2. A warning notice as herein provided shall

not remain in effect for a period of more than nine (9)

months from the date of such notice. Any appeal from

discharge or suspension shall be made pursuant to the

Grievance Procedure set forth in this Agreement.

Section 3. Should such an investigation prove that an

injustice has been done an employee, he or she shall be

reinstated and compensated at his or her usual rate of

pay while he or she has been out of work, including com-

missions.

Section 4. It is agreed, however, that in the hiring

of a new employee who had had not less than six (6)

App. 50

months’ experience in the same line within two (2) years,

that the said new employee shall be started by the Em-

ployer on the basis of the wage of any new employee

with the experience as above stated, the same as though

the new employee has been employed by the Employer

the time specified above.

Section 5. The management of the plant, the diree-

tion of the working forces, the distribution of products,

the establishment of reasonable dules and regulations for

the conduct of the employees, the enforcement thereof and

the supervision of the work and the right to hire, promote

and transfer shall remain the exclusive function of the

Employer, subject, however, to the terms of this Agree-

ment.

Section 6. The Employer shall give the Local Union

a list of the probationary employees hired and/or dis-

charged prior to the expiration of the trial period at

least once in each sixty (60) day period. This list shall

also contain addresses and dates of hiring, as well as

classification of work.

Section 7. The Employer will provide employment,

training, compensation and other conditions of employ-

ment without regard for race, color, religion, national

origin, sex or age, except where age or sex are bona fide

occupational requirements.

ARTICLE VI

GRIEVANCE PROCEDURE AND ARBITRATION

Any controvery arising over the interpretation of, or

adherence to, the terms or provisions of this Agreement

{

;

App. 51

shall be settled by negotiations between the Union and the

Employer. Any grievance must be presented to the Em-

vloyer within seven (7) working days after occurrence of

the event giving rise to the grievance, or it shall be con-

sidered waived. Such controversy may be referred to ar-

bitration. In such event the parties shall first attempt to

agree upon an impartial arbitrator. If they connot agree

within five (5) working days, the parties shall jointly

request Federal Mediation and Conciliation Service to

submit a list of five (5) names of possible arbitrators.

Within one (1) week after receipt of the panel of

arbitrators, the parties shall meet to select the arbitrator.

The parties shall each strike two names from the panel,

and the remaining name shall be the arbitrator. The de-

cision of the arbitrator shall be final and binding on the

Union and Kmployer in any controversy so submitted. The

fee of the Arbitrator and other necessary expense in-

curred in connection with the arbitration, other than ex-

penses incurred on their own behalf by the respective

parties, shall be shared equally by the parties.

ARTICLE VII

STEWARDS

Section 1. The Employer recognizes the right of the

Union to designate job stewards and alternates, such stew-

ards and/or alternates to be employees of the Employer.

The authority of job stewards and/or alternates so de-

signed by the Union shall not exceed the following duties

and activities:

A. The investigation and presentation of grievances

in accordance with the provisions of this Agree

ment.

App. 52

B. The collection of dues when authorized by ap-

propriate Union action.

C. The transmission of such messages and informa-

tion which shall originate with and authorized

by the Union or its officers, provided such mes-

sages and information.

(1) Have been reduced to writing, or

(2) If not reduced to writing, are of a rou-

tine nature and do not involve work

stoppages, slow-downs, refusals to handle

goods or any other interference with the

Employer’s business.

Job stewards and/or alternates have no authority

to take strike action or any other action interrupting the

Employer’s business except as authorized by official action

of the Union.

The Employer recognizes these limitations upon the

authority of job stewards and their alternates and shall

not hold the Union liable for any unauthorized acts. The

Employer in so recognizing such limitations, shall have

the authority to impose proper discipline, including dis-

charge, without recourse, in the event the job steward

and/or alternate has taken unauthorized strike action,

slow-down, or work stoppage, in violation of this Agree-

ment.

Section 2. In all cases where employees must leave

their work in order to perform their duties as a job

steward or alternate, they shall request permission from

their supervisor before leaving their job and shall ‘eport

to their supervisor upton returning to their job.

App. 53

ARTICLE VIII

SENIORITY

Section 1. Departmental senority shall prevail at all

times, based upon the following departmental categories:

A. Route Sales — Route Salespersons

B. Production — Syrup Mixer, Filled Operator, other

Production employees, and Maintenance and Pro-

duction Mechanics.

C. Warehouse — Truck Mechanics and Mechanie’s

Helpers and Warehouse employees.

D. Vendor — Vendor Serviceperson and Helper

K. Office Employees

Section 2. Seniority rights shall be determined by

length of service within a department.

Section 3. Any new employee shall be on probation

for the first sixty (60) days. An employee retained after

the probationary period shall be placed on the regular

seniority list as of the date of his or her original hiring.

Section 4, In the event that it becomes necessary to

reduce the number of employees within a department, the

Employer shall lay off employees in accordance with

their seniority. Employees so laid off shall be reinstated

on the basis of their departmental seniority.

Section 5. The positions of working foreperson in

any department, syrup mixer and filled operator and

checker, and computer operator shall be exempt from bid-

ding, and Employer may fill vacancies in these positions

from any source.

Section 6. An employee’s seniority with the Em-

ployer shall be broken and terminated when the employee:

App. 54

(a) quits; (b) is discharged for cause; (c) overstays

an authorized leave of absence. Any employee’s seniority

shall then start anew upon re-employment. In the case

of lay-off, there shall be no break in departmental seniority

and all departmental seniority rights established shall be

maintained if rehired to the same department, but not

if rehired to a different department.

Section 7. Vacancies of jobs or routes now established,

or new jobs or routes added except as exempted under

Section 5, are to be filled on the basis of departmental

seniority and qualification for the job among employees

bidding for such job. Jobs shall be posted on the bulletin

board for seventy two (72) hours, within one (1) week

after such availability occurs, for bidding by eligible em-

ployees.

Employees successfully bidding a job according to

the seniority provision shall start the job no later than

the following Monday.

Section 8. Except as otherwise provided in this

Agreement, the Employer may make transfer within and

between departments. If after such transfers a job open-

ing remains in the production or warehouse department,

such job will be filled on the basis of seniority and quali-

fication for the job among production or warehouse em-

ployees applying for the job, first from within the de-

partment in which the job exists (either warehouse or

production). There shall be no bidding between depart-

ments

Section 9. Route Salespersons must have six (6)

months’ seniority with the Employer before they shall

be eligible to bid on an open or new route. Once a sales-

person is assigned a route, after bidding, such salesperson

App. 59

will not be eligible to bid on another route for six (6)

months.

The Employer must inform a route salesperson with

less than one year seniority, that if he or she bids a

route he or she may not bid for another six (6) months.

The steward shall initial each bid prior to it being

awarded.

Section 10. If a vacancy oceurs while an employee

is absent on vacation or any other approved absence,

such employee shall be eligible to bid on the open job or

route within forty eight (48) hours after returning from

such absence. Any assignment of an open job or route

while an employee is unavailable because of such absence

shall be on a temporary basis until such employee has

had an opportunity to submit a bid as stated above.

Section 11. Whenever a sales route is open under

the seniority rules, only three (3) changes will be per-

mitted.

ARTICLE IX

HOURS

Section 1. Route Salespersons

(a) The starting time for route salespersens shall

be between 6:00 a.m. and 8:00 a.m., as fixed by

the Employer.

(b) The working hours of salespersons are not fixed.

They may return to the plant upon full completion

of their daily route, including making all stops.

No salesperson shall be required to make a de-

livery to a customer after fully completing his

or her route and making a call-in from his or

her last stop to check the telephone call book

prior to leaving his or her route.

(c)

(d)

(e)

(f)

App. 56

The basic work week shall be five (5) days, Mon-

day through Friday, (excluding the weeks listed

below). The basic work week shall be five (5)

days, Monday through Saturday, during the six

(6) recognized holiday weeks.

When the Christmas holiday falls on Monday,

Tuesday or Wednesday, the basic work week

shall be six (6)) days, Monday through Satur-

day, for the week preceeding the Christmas holli-

day.

No route salesperson shall be required to work

Saturday, other than those specified above. If

there are cases to be delivered on Saturday, other

than those specified above, as a result of adver-

tised promotions, or to service special accounts,

such Saturday shall be first be offered to the

regular route salesperson. Should he or she de-

cline to work such Saturday, the work will be

offered to others by seniority. If no one agrees

to the Saturday work, and it is performed by

management, no commission will be paid. There

will be minimum one hundred (100) case guar-

antee for such Saturday work. If more than

thirty (30) cases are left, over and above regu-

lar store inventory at the end of the promotion,

the regular route salesperson shall receive com-

mission for any excess from the promotion that

is not picked up. Any excess above the thirty

(30) cases picked up or retained will be de-

ducted from the deliverer. Any such excess shall

be reported to management on the day of the

route salesperson’s first call on the account after

the promotion is ended. Notice shall be given

for such Saturday, no later than the preceeding

Wednesday morning.

No route salesperson, after he has returned to

the plant will be required to sort any bottles by

brand.

App. 57

Section 2. Inside Employees

(a) Subject to availability of work and in accordance

with seniority, a guaranteed standard work week

of forty (40) hours shall prevail. Hours worked

in any one (1) day shall be consecutive and

those in excess of eight (8) hours, exclusive of

lunch periods, shall be at the rate of one and

one-half (114) the regular hourly rate for all

actual time worked. On work days, the start-

ing time shall be as determined by the Employer

except employees on the bottling line, whose

starting time shall not be later than 8:00 am

Any work in excess of forty (40) hours in any

week shall be paid at the rate of one and one-

half (114) the employee’s regular rate.

(b) In the event that the employee is required to

report on Saturday or Sunday he or she shall

be guaranteed a minimum of four (4) hours of

work. All work performed on Saturday shall be

paid for at the rate of time and one-half (114)

the employees rate. Overtime shall not be pyra-

mided on overtime. All work performed on Sun-

day will be paid at the rate of double time.

o’clock noon when overtime is scheduled, except

when the conditions creating the need for over-

time develop after 12:00 o’clock noon, or in case

of emergency.

‘One day notice when required to work on Satur-

day, Sunday or holiday, except when the condi-

tions creating the need for such work develop

on the day before or in case of emergency.

ARTICLE X

MAINTENANCE OF STANDARDS

Section 1. The Employer agrees that all conditions

of employment relating to wages, hours or work, over-time

App. 58

differentials and general working conditions shall be main-

tained at no less than the highest minimum standards in

effect at the time of the signing of this Agreement.

Section 2. It is agreed that the provisions of this

Section shall not apply to inadvertent or bona fide errors

made by the Employer or the Union in applying the terms

and conditions of this Agreement if such error is corrected

within ninety (90) days from the date of error. No other

Employer shall be bound by the voluntary acts of another

Employer when he may exceed the terms of this Agree-

ment.

ARTICLE XI

ROUTE SPLITS

The Employer shall have the right from time to time

to allot to and change, extend or split up the routes of the

route salesperson. In event of such split, the salesperson

shall be guaranteed that his or her commissions from case

sales established during the twenty-six (26) weeks pre-

ceding such split shall not be decreased during the sixteen

(16) week period immediately following such split. Set-

tlement for any decreased commissions shall be made at

the end of the sixteen (16) week period for which such

guarantee is in effect. This guarantee shall not apply to

any product or package the sales or distribution of which

are discontinued.

ARTICLE XII

NEW OPERATIONS

In the event any new job or job classifications are

created in the general area covered by the provisions of

App. 59

this Contract, the Employer will enter into negotiations

with the Union for the purpose of determining the wages,

classifications and other conditions prior to the institu-

tion of such operation. (In the event the parties cannot

agree, the matter shall be subject to the Grievance Pro-

cedure provided in Article VI.)

ARTICLE XIII

HOLIDAYS

Section 1.

(a) Employees covered by this Agreement shall not

be required to work on Sundays, or the following

holidays:

New Year’s Day Labor Day

Decoration Day Thanksgiving Day

Fourth of July Christmas Day

(b) In addition to the foregoing six (6) holidays, all

employees will be entitled to a seventh (7th) holi-

day for the employee’s birthday, provided that

such employee has been in the employ of the Em-

ployer for one (1) year or more. Such holiday

shall be taken on a day chosen by the Employee

which shall be within seven (7) days before or

seven (7) days after such employee’s birthday,

or on such other day as may be mutually agreed

upon by the employer and employee.

Section 2. Holidays not worked shall be considered

as a day’s work for the purpose of computing overtime

in the week in which the holiday occurs, and in no case

shall any employee be required to make up hours lost due

to a holiday week.

Section 3. All hourly paid employees covered by this

Agreement shall have eight (8) hours pay for each of the

App. 60

above mentioned holidays based on straight time hourly

rate.

Section 4. All salespersons shall receive as holiday

pay Forty dollars ($40.00) per holiday during the term

of this Agreement. This includes birthday.

Section 5. If an emergency arises and an employee

is required to work on any of the above holidays, he or

she shall receive an additional day’s day at the time and

one-half (114) hourly classification rate.

Section 6. If an emergency arises and an employee

is required to report for work, (other than a regular sched-

uled work day or holiday) such employee shall be paid

at the rate of time and one-half (114) the hourly rate for

such time worked, and shall be guaranteed four (4) hours’

pay per start.

Section 7. If an emergency arises and an employee

is required to report for work on Sunday, such employee

shall be paid two (2) times the hourly rate for such time

worked, and shall be guaranteed four (4) hours’ pay per

start.

Section 8. If any of the above named holidays fall

within the employee’s vacation, the Employer will grant

the employee, at the discretion of management, a day off

during the calendar year or a day’s pay in lieu thereof.

Section 9. If any of the above mentioned holidays oc-

cur during the first thirty (30) days while a regular em-

ployee shall be on a bona fide sick leave, such employee

shall receive the holiday pay for the holiday, or holidays,

above named.

App. 61

Section 10. All regular employees shall be granted

holiday pay, for the holidays above named, whenever such

employee suffers an injury on the job, provided such pay

shall be received only for the holidays which oceur during

a ninety (90) day period from the date of injury.

ARTICLE XIV

VACATIONS

Section 1. Employees who have been in the continuous

employment of the Employer for one (1) year shall be

entitled to and take one (1) weeks’ annual vacation with

pay. Employees who have been in the continuous em-

ployment of the Employer for two (2) years shall be en-

titled to take two (2) weeks’ annual vacation with pay.

Employees who have been in the continuous employment

of the Employer for eight (8) years shall be entitled to

and take three (3) weeks’ annual vacation with pay. Em-

ployees who have been in the continuous employment of

the Employer for fifteen (15) years shall be entitled to

and take four (4) weeks’ annual vacation with pay.

Section 2. Employee, upon the giving of a reasonable

notice of not less than one (1) week to his Employer, shall

be given his vacation pay before starting on his earned

vacation.

Section 3. Vacation pay for route salespersons shall

be based upon one fifty-second (1/52nd) of the route sales-

person’s earnings for the previous calendar year for each

week of vacation earned, or the earnings of the route for

the vacation week taken, or a prorated portion of the

monthly guarantee, whichever is greater.

App. 62

Section 4. Vacation shall not be accumulative and em-

ployees cannot waive vacations and draw double pay in lieu

thereof.

Section 5. The Employer shall post a vacation list on

or about February Ist. During the week following such

posting, the top 25% seniority employees shall select their

period of vacation. In succeeding weeks the second 25%,

third 25% and the bottom 25% shall select their vacations

so that selections are completed by March 1. Should an

employee fail to make a selection of vacation period by

March 1, he shall waive seniority rights and the Employer

shall assign vacation. The Employer shall leave the vaca-

tion list up so it may be seen for twelve months.

Section 6. No more than three (3) route salespersons

may bid and take their vacation during the same week of

vacation.

Section 7. No more than two (2) production employees

may take their vacation during the same week of vacation.

No more than two (2) warehouse employees may take their

vacation during the same week of vacation. No more than

one (1) office employee may take their vacation during

the same week of vacation.

Section 8. Vacation pay for hourly employees shall

be based upon one fifty-second (1/52nd) of the employee’s

earnings for the previous calendar year for each week of

vacation earned, or forty (40) hours at the straight-time,

hourly rate for each week of vacation earned, whichever

is greater.

Section 9. Except for employees discharged under

ARTICLE V, SECTION 1, for any of the reasons specif-

ically listed therein, each employee who has completed one

App. 63

(1) full year of employment shall upon termination of his

employment, receive the prorata share of vacation which

he has earned for each completed month since the last

anniversary date of employment.

ARTICLE XV

GENERAL

Section 1. When a route salesperson receives a check

as payment from a customer, he or she shall not be held

responsible for the validity or genuineness of such check

or endorsements thereon. This shall not apply to two

party checks or checks accepted from a customer after the

Employer’s instructions to the route salesperson not to

accept checks from such customer. In those cases, the

route salesperson shall be held responsible.

Section 2. The driver of a vehicle of the Employer

shall allow no one on or in said vehicle who is not an em-

ployee of the Employer and on duty.

Section 3. Rather than in all cases to dispense with

the services of such employees, when employees, by rea-

son of age or physical or mental disability or limited abil-

ity, are unable to maintain production standards in the

judgment of the Employer, such employees may be of-

fered employment in some other work for the Employer

which they can do, provided such work is available at a rate

upon which the Employer and the Union may agree if

such job is within the bargaining unit, and without regard

to seniority.

Section 4. A route salesperson shall not be responsible

for merchandise stolen from his truck, if the truck does

App. 64

not have locks in good working order to pretect the mer-

chandise, and if the route salesperson promptly files a

bona fide police report on the theft.

Section 5. In the event legislation is passed which

would become effective in the State of Nebraska during

the term of this Agreement banning the use of non-re-

fillable cans or bottles or placing a deposit on same, either

party to this Agreement may give thirty (30) days’ notice

to the other party that said contract be opened for the pur-

pose of discussing wages, hours and/or working conditions

for only those employees whose wages might be changed

as the result of such legislation. If the parties do not

agree, there shall be no strikes, lockouts or other legal

or economic recourse exclusive of arbitration.

Section 6. The Employer shal! furnish a monthly ac-

countability statement on how route salespersons stand.

Shortages shall work both ways.

Section 7. \ny employee involved in any accident shall

immediately report said accident and any substantial in-

juries sustained. When required by Employer, the em-

ployee, before starting his next shift, shall make out an ac-

cident report in writing on forms furnished by the Em-

ployer and shall turn in all available names and addresses

of witnesses to the accid@at. Failure to comply with this

provision shali subject such employee to disciplinary action

by the Employer.

ARTICLE XVI

UNIFORMS

Section 1. Plant Employees: Where the Employer

requires a uniform be worn, same shall be paid for by the

App. 65

Employer. Said uniform shall be the property of the Em-

ployer and upon termination of services of the employee,

the employee shall return, cleaned, the last complete is-

sue of both summer and winter uniforms. All uniforms

shall bear the Union label.

Section 2. Route Salespersons: Route salespersons,

covered by this Agreement, when required to do so, shall

wear uniforms selected by the Employer, which shall not

be worn at places which would bring reproach upon the

Kimployer and/or route salesperson.

Section 3. The Employer agrees to pay the full cost

of such uniforms, and the uniforms shall remain the prop-

erty of the Employer, and upon termination, the route

salesperson shall return, cleaned, the last complete issue

of summer and winter uniforms.

Sectton 4. The route salesperson shall wear clean

uniforms at all times. It is the sole responsibility of the

route salesperson to launder and clean the uniforms they

wear.

Section 5. A committee shall be selected of equal

numbers between the Employer and the employees to ex-

plain any questions in regard to uniforms.

ARTICLE XVII

SICK LEAVE

Section 1. Seniority shall not be forfeited by a bona

fide illness or injury provided that absence by reason

thereof is supported by medical certificate and does not

extend over (1) year in duration. Should the duration of

such bona fide illness or injury, supported by a medical

App. 66

certificate, extend over one (1) year in duration, the va-

cated job shall be filled, but any such absent employee will

not lose seniority when he subsequently returns to work.

While on sick leave, an employee shall not accumulate ad-

ditional sick leave.

Section 2. Employees shal! be entitled to sick leave

after they have been regularly employed by the Company

for six (6) months. After six (6) months, they shall be

entitled to three (3) days sick leave with pay. The basis

for sick leave pay for hourly-paid employees shall be

eight (8) hours at the straight-time rate for each day of

sick leave. The basis for sick leave pay for route sales-

persons shall be Forty-four dollars ($44.00) per day dur-

ing 1980 and Forty-six dollars ($46.00) per day during

1981, and Forty-eight dollars ($48.00) per day during

1982, or the earnings of the route, whichever is greater.

On each succeeding six (6) months anniversary of their

employment, they shall become eligible for an additional

three (3) days sick leave.

Section 3. There shall be no maximum limit on the

time an employee may accumulate sick leave. Sheuld an

employee’s absence because of sickness exceed the period

of sick leave granted, the Employer, upon request of the

employee, may elect to grant additional sick leave pay in

lieu of vacation pay if the employee shall be entitled to

vacation pay under the terms of this Agreement.

Section 4. Sick leave pay shall begin on the second

day of an employee’s absence, provided, however, that in

the case of (a) accidental injury substantiated by a doc-

tor’s certificate, or (b) employees who have been in the

continuous employ of the Employer for two (2) years or

more, sick leave pay shall begin on the first day’s absence.

App. 67

Section 5. In all cases, sick leave shall be paid in

conjunction with Workmen’s Compensation. In no event

shall sick leave be paid in conjunction with Work-Compen-

sation and/or weekly Sickness and Accident Insurance

benefits in an amount which in combination would exceed

the amount the employee would have earned. For pur-

poses of calculation sick leave under this section only,

will be rounded to the nearest quarter day and sick leave

not used under this Section shall be accumulated.

Section 6. The Employer will pay the Employer’s

cost of all fringe benefits now existing for the first thirty

(30) days absence, except where there is an on-the-job

injury, in which case, the Employer will pay the Employ-

er’s cost of such fringe benefits until the employee re-

turns to work, but in no event for a period exceeding

twelve (12) months.

ARTICLE XVIIi

ABSENCE

Section 1. The Employer agrees to grant the neces-

sary and reasonable time off, without discrimination or

loss of seniority rights and without pay, to any employee

designated by the Union to attend a labor convention or

serve in any capacity on other official Union business,

provided forty eight (48) hours’ written notice is given

to the Employer by the Union, specifying length of time

off. The Union agrees that, in making its request for time

off for Union activities, there shall be due consideration

given to the number of men or women affected in order

that there shall be no disruption of the Employer’s opera-

tions due to lack of available employees.

App. 68

Section 2. Any employee desiring leave of absence

from his or her employment shall secure written permis-

sion from both the Local Union and Employer. The maxi-

mum leave of absence shall be for thirty (30) days and

may be extended for like periods. Permission for exten-

sion must be secured from both the Local Union and Em-

ployer. During the period of absence, the employee shall

not engage in gainful employment in the same industry

in classifications covered by this Contract. Failure to

comply with this provision shall result in the complete

loss of seniority rights for the employees involved. In-

ability to work because of proven illness or injury shall

not result in the loss of seniority rights.

Section 3. If an employee is granted a leave of ab-

sence, as provided in Section 2, above, the Employer shall

collect from said employee, prior to the leave of absence

being effective, sufficient monies to pay the cost of Non-

Occupational Employee Benefit Plan during the period

of absence.

ARTICLE XIX

LIMITATIONS OR RIGHTS

AUTHORITY AND LIABILITY

Section 1. No employee, Union member or other

agent of the Union shall be empowered to call or cause

any strike, work stoppage or cessation of employment of

any kind whatsoever without the express approval of the

Business Representative or the Secretary-Treasurer of

che Local Union. The Union shall not be liable for any

such activities unless expressly so authorized.

App. 69

Section 2. Any individual employee or group of em-

ployees who willfully violate or disregard the arbitration

and grievance procedure set forth in Article VI of this

Agreement, may be summarily discharged by the Em-

ployer without liability on the part of the Employer or

the Union.

" ARTICLE XX

NO STRIKE NO LOCKOUT

Section 1. The Union and Employer agree that dur-

ing the term of the Agreement there shall be no strike

or lockouts.

Section 2. Picket Line: It shall not be a violation of

this Agreement, and it shall not be cause for discharge

or disciplinary action, in the event an employee refuses

to enter upon any property invelved in a lawful primary

labor dispute, or refuses to go through or work behind

any lawful primary picket line, including the lawful pri-

mary picket line of Unions party to this Agreement, and

including lawful primary picket lines at the Employer’s

place of business.

Section 3. Struck Goods: It shall not be a violation

of this Agreement and it shall not be a cause for dis-

eharge or disciplinary action if any employee refuses to

perform any service which his or her Employer under-

takes to perform for an Employer or person whose em-

ployees are on strike, and whic service, but for such

strike, would be performed by the employees of the Em-

ployer or person on strike.

Section 4. Grievances: Withmn five (5) working days

of filing of grievance claiming wolation of this Article,

App. 70

the parties to this Agreement shall proceed to the final

step of Article VI — Grievance Procedure and Arbitra-

tion —, without taking any intermediate steps, any other

provision of this Agreement to the contrary notwith-

standing.

ARTICLE XXI

BONDS

Section 1. Should the Employer require any employ-

ee to give bond, cash bond shall not be compulsory, and

any premium involved shall be paid by the Employer.

Section 2. The piimary obligation to procure the

bond shall be on the Employer. If the Employer cannot

arrange for a bond within thirty (30) days, he must so

notify the employee in writing. Failure to so notify shall

relieve the employee of the bonding requirement. If

proper notice is given, the employee shall be allowed twenty

(20) days from the date of such notice to make his or her

own bonding arrangements, standard premiums only on

said bond to be paid by the Employer. A standard prem-

ium shall be that premium paid by the Employer for

bonds applicable to all other of its employees in similar

classifications.

Section 3. Any excess premium are to be paid by the

employee. Cancellation of a bond after once issued shall

not be cause for discharge, unless the bond is cancelled

for cause which occurs during working hours, or due to

the employee having given fraudulent statement in ob-

taining said bond.

App. 71

ARTICLE XXII

MILITARY SERVICE

Any employee on the seniority list inducted into Mili-

tary, Naval, Marine or Air Service under the provisions

of any Federal Selective Service Training Statute and

amendments thereto, or any similar act in time of Na-

tional Emergency respectively, shall, upon termination

of such service, be re-employed in line with his seniority,

at the then current rate for such work, provided he or she

has not been dishonorably discharged from such service

with the United States Government and is physically able

to do work available, and further, provided he or she

reports for work within ninety (90) days of the date he

or she is discharged from such service with the United

States Government.

ARTICLE XXIII

RECORDS

Section 1. The Employer shall make available to an

authorized representative of the Union for inspection at

the plant any and all recorus necessary to settle a dispute

provided such records shall apply only to salary, wages,

or hours of an employee under this Agreement.

Section 2. Authorized representatives of the union

shall have access to the Employer’s plant during working

hours for the purpose of adjusting disputes and ascer-

taining that the Agreement is being adhered to, provided

however, that there is no interruption of the Employer’s

work schedule, and that the Union representatives first

reported to the Plant Manager’s office.

App. 72

ARTICLE XXIV

SEPARABILITY AND SAVINGS CLAUSE

Section 1. If any Article or Section of this Contract

or of any Riders thereto should be held invalid by opera-

tion of law or by any tribunal of competent jurisdiction,

or if compliance with or enforcement of any Article or

Section should be restrained by such tribunal pending a

final determination as to its validity, the remainder of

this Contract and of any Rider thereto, or the application

of such Article or Section to persons or circumstances

other than those as to which it has been held invalid or

as to which compliance with or enforcement of has been

restrained, shall not be affected thereby.

Section 2. In the event that any Article or Section is

held invalid or enforcement of or compliance with which

has been restrained, as above set forth, the parties af-

fected thereby shall enter into immediate collective bar-

gaining negotiations, upon the request of the Employer or

the Union, for the purpose of arriving at a mutually satis-

factory replacement for such Article or Section during

the period of invalidity or restraint. If the parties do

not agree on a mutually satisfactory replacement, either

party shall be permitted all legal or economic recourse in

support of its demands notwithstanding any provision in

this Contract to the contrary.

ARTICLE XXV

TOOLS

The Employer will furnish all tools necessary to per-

form work on any equipment or material.

App. 73

ARTICLE XXVI

FUNERAL LEAVE

In the event of the death of Father, Mother, Spouse,

Brother, Sister, Child, Mother-in-Law, Father-in-Law,

Son-in-Law, Daughter-in-Law, Brother-in-Law, Sister-in-

Law, Grandparents or Grandchild of an employee, the em-

ployee shall be entitled to be absent from work for a period

of not more than three (3) regular working days when such

absence is necessary to make arrangements for and to

attend the funeral. During such absence, the employee

shall be compensated at his or her regular rate of pay for

regular time lost. Such absentee compensation shall not

include pay for loss of overtime, vacation time or premium

pay.

ARTICLE XXVITI

JURY OR ELECTION DUTY

Regular full time employees serving on jury duty or

election duty shall receive their classified rate of pay for

scheduled hours of work they are required to be absent

from their job, less any fees they may receive as defined

by law for jury service or election service during the

period of time they actually serve as a jurist or election

board member. They shall report for work promptly at

the end of said jury or election service. They shall pre-

sent an order requiring such service to their supervisor.

The above loss of pay provision shall not apply if the

employee volunteers for said jury or election duty service.

App. 74

ARTICLE XXVIII

COST OF LIVING

Section 1. All hourly paid employees covered by this

Agreement except bottlesorters newly employed after

1/1/80, shall be covered by the provisions for a cost-of-

living allowance as set forth in this Article.

Section 2. The amount of the cost-of-living allow-

ance shall be determined and redetermined as provided

below on the basis of the Revised Index for Urban Wage

Earners and Clerical Workers (All Items), published by

the Bureau of Labor Statisties, U.S. Department of Labor

“1967-100”, and referred to herein as the ‘‘Index”.

Section 3. The cost of living allowance under this

Agreement shall be due as outlined, using the following

schedule:

(a) With 12-1-80 as a base figure, the first allow-

ance is to be paid April 1, 1981, or when the

figures are available for December 1980,

January and February 1981.

(b) The second allowance is to be paid July 1,

1981, or when the figures are available for

March, April and May, 1981.

1981, or when the figures are available for

June, July and August, 1981.

(d) The fourth allowance is to be paid January

1, 1982, or when the figures are available for

September, October and November, 1981.

(e) With 12-1-81 as a new base figure, the same

schedule for the fifth, sixth, seventh and

eighth allowances to be paid shall follow the

above schedule, except for the dates.

App. 75

Section 4. The cost-of-living allowance due at the be-

ginning of each three (3) month period during this Agree-

ment shall be based on the difference between the Index

figure of the preceding three months Index figure.

Section 5. A one-cent (1¢) per hour cost-of-living ad-

justment shall be made for each full .4 point increase or

decrease in the cost-of-living as determined by the pro-

cedure set out in the above paragraph.

Section 6. There shall be a maximum 12¢ adjustment

in the second year of this Agreement. There shall be a

maximum 12¢ adjustment in the third year of this Agree-

ment.

Section 7. Any increase required as a result of this

Article shall be added to an employee’s classification base

rate, as set out in Schedule A. A dccline in the Index shall

not result in a reduction of classification base rates as

set out in Schedule A.

Section 8. If the Index in its present form and ecal-

culated on the same basis shall be discontinued, then the

parties shall negotiate a replacement for this clause.

Section 9. The cost-of-living allowance referred to

herein, Sections 1-9, shall not be due and payable during

the first year of this Agreement.

ARTICLE XXIX

REOPENER

The Employer may, at any time during the first 18

months of this contract, send the Union by certified mail

a written sixty (60) days notice to reopen portions of this

Agreement at the end of such 60 days should the Employer

App. 76

elect to go to an advance sell-system. Such reopener shall

be limited to the issues of: (a) a change in method of

compensation under Schedule A(D) of this contract for

employees currently classified as route salespersons who

would continue to deliver product under an advance sale

system, from commission to base rate plus commission, an

hourly basis, or any other payment method determined

by the Employer to be appropriate, (b) which new em-

ployee positions if any created by an advance sell system

are to be included within the definition of Employee in

Article I, Section 6 of this contract.

In the event the parties are unable to negotiate an

agreement during the reopener, Article XX, Section 13 of

this Agreement shall be inoperative until an agreement is

reached.

ARTICLE XXX

TENURE OF AGREEMENT

This Agreement, together with the attached Schedule,

shall be in full force and effect. from January 1, 1980, to

and including December 31, 1982, and shall continue in

full force and effect from year to year thereafter unless

written notice of desire to cancel or terminate the Agree-

ment is served by either party upon the other at least

sixty (60) days prior to December 31, 1982, or December

31st of any subsequent contract year.

IN WITNESS WHEREOF, the parties hereto have

herein below executed this Agreement on this — day of

, 1980.

App. 77

MID-CONTINENT GENERAL DRIVERS & HELPERS

INDUSTRIES, INC. UNION, LOCAL 554, affiliated with

( Mid-Continent the International Brotherhood of

Bottlers, Ine. Teamsters, Chauffeurs, Warehouse-

Omaha, Division) men and Helpers of America.

/s/ By Dale R. /s/ By Thomas C. McFarland

Richardson TITLE Secretary Treasurer

TITLE V.P. - /s/ By Charles E. Hansen

Gen. Mgr. TITLE Business Representative

SCHEDULE A

A. SALES DRIVERS

Section 1. In the event the Employer introduces a

new non beverage product which will be handled by route

sales, the commission to be paid will be mutually agreed

upon by Union and the Employer prior to the first de-

livery of the same.

Section 2. Commission shall be paid to route sales-

persons for all merchandise delivered on his or her route,

except as otherwise provided under this Agreement.

Section 3. Returned merchandise will not be deducted

from the commission of the route salesperson if the mer-

chandise was ordered by a customer on the salesperson’s

route and delivered by someone other than the route sales-

person.

Section 4. In the event a route salesperson is laid

off, he or she shall be given two (2) week’s notice of re-

call, mailed to his or her last known address. In the event

the employee fails to be available for work at the end of

said two weeks, he or she shall lose all seniority rights

under this Agreement.

App. 78

Section 5. If a salesperson is required to run his or

her route on a day of funeral leave, he or she shall be

compensated full commission or holiday pay, whichever is

greater.

Section 6. Driver salespersons serving on jury or elee-

tion duty shall be compensated full commission or holiday

pay, whichever is greater, minus any fees earned for jury

or election duty.

B. INSURANCE

During the life of this Agreement, the Employer

agrees to keep in effect, without increased cost to the

Employees, the now existing group health insurance pro-

gram with the following improvements:

1. Effective January 28, 1980

(a) For covered hospitalization started on or af-

ter such date, the maximum Daily Hospital

Room Benefit shall be $105.00.

(b) For any covered disabilities starting on or

after such date, the weekly loss of time bene-

fit shall be $75.00 per week.

after such date, the maximum for Major

Medical expense benefits shall be $100,000.00.

(d) For covered X-ray and laboratory cxpenses

incurred on or after such date, the maximum

payment shall be $85.00.

2. Effectwe January 1, 1981

(a) For any covered disabilities starting on or

after such date, the weekly loss of time bene-

fit shall be $80.00 per week.

(b) For covered hospitalization started on or af-

ter such date, the maximum Daily Hospital

Room Benefit shall be $110.00 per day.

App. 79

3. Effective January 1, 1982

(a) For any covered disabilities sta:ting on or

after such date, the weekly loss of time bene-

fit shall be $85.00 per week.

(b) For any covered hospitalization started on or

after such date, the maximum Daily Hospital

Room Benefit shall be $115.00 per day.

C. PENSION

For employees covered by the Wage and Commission

Pension Plan, the monthly pension benefit shall be in-

creased to $6.00 per year of future service credited after

March 1, 1977, up to a maximum of twenty-five (25) years

service. The costs of this improvement shall be shared

by the Employer and Employees on the same percentage

contribution basis that is now being made to the pension

plan by the Employer and Employees prior to its improve-

ment.

D. WAGES — SALES DRIVERS

Eff. Eff. Eff. Eff. Eff.

1/1/80 1/1/81 7/1/81 1/1/82 7/1/82

Refillables —

Non-refillables —

per case 31i%4¢ 33%¢ 34¢ 35¢ 36lA¢

Pre-Mix — per 5

gallon tank 60¢ 65¢ 70¢

Post-Mix —

per gallon 15¢ 15¢ 17¢

For any empty non-refillable containers a route sales-

person is required by the Employer to pick up and that he

App. 80

or she does pick up and return, the route salesperson

shall, during the term of this Agreement, receive 3¢ per

case returned.

All route salespersons who have served in such ¢a-

pacity for sixty (60) days shall be guaranteed $750 per

month during 1980, $775 per month during 1981, and

$800 per month during $1982. During the term of this

contract, route trainees shall be guaranteed $140 per

week during the first thirty (80) days of employment and

$150 per week during the second thirty (30) days of em-

ployment. Route trainees shall be guaranteed $160 per

week after sixty (60) days of employment.

In addition to the regular commission payable above,

route salespersons who have been in the permanent con-

tinuous employment of the Employer for three (3) years

or more shall be entitled to an additional longevity com-

mission of 14¢ per case on all refillable, non-refillable, pre-

mix and post-mix units sold.

E. WAGE RATES — PRODUCTION

Wages will be paid in accordance with the following

hourly rates:

Eff. Eff. Eff. Eff. Eff.

1/1/80 1/1/81 7/1/81 1/1/82 7/1/82

Working

Foreperson $6.07 $6.52 $6.57 $6.97 $7.02

Mechanic 6.14 6.59 6.64 7.04 7.09

Syrup Mixer &

Filler

Operator 5.97 6.42 6.47 6.87 6.92

General

Production 5.89 6.34 6.39 6.79 6.84

F. WAGE RATES — WAREHOUSE EMPLOYEES

Wages will be paid in accordance with the following

hourly rates:

Working

Foreperson

Truck Mechanic

Mechanic’s

Helper &

Warehouse

Employees

Bottlesorters

employed on

1/1/80:

ist 3 months

2nd 3 months

Over 6 months

Bottlesorters

newly employed

after 1/1/1980:

lst 3 months

2nd 3 months

Over 6 months

G. WAGE RATES — VENDING EMPLOYEES

Eff.

1/1/80 1/1/81 7/1/81 1/1/82 7/1/82

$6.07

6.34

4.64

4.84

0.04

$6.52

6.79

6.34

0.49

0.69

5.89

4.74

4.94

0.14

$6.57

6.84

6.39

Yo ~ Gr

p> _ Pp

$6.97

7.24

6.79

0.94

6.14

6.34

4.84

0.04

0.24

$7.02

7.29

6.84

0.99

6.19

6.39

Wages will be paid in accordance with the following

hourly rates;

App. 82

Eff. Eff. Eff. Eff. Eff.

1/1/80 1/1/81 7/1/81 1/1/82 7/1/82

Working

Foreperson $6.09 $6.54 $6.59 $6.99 $7.04

Service Person 5.99 6.44 6.49 6.89 6.94

Helpers 5.94 6.39 6.44 6.84 6.89

H. WAGE RATES — OFFICE EMPLOYEES

Wages will be paid in accordance with the following

hourly rates:

Eff. Eff. Eff. Eff. Eff.

1/1/80 1/1/81 7/1/81 1/1/82 7/1/82

ClassI —

Posting Clerk;

Keypunch ;

Receptionist

Clerk $5.62 $6.07 $6.12 $6.52 $6.57

Class II —

Accounting

Clerk;

Lead Keypuneh 5.67 6.12 6.17 6.57 6.62

Class IIT —

Accountant;

Computer

Operator 5.9

6.37 6.42 6.82 6.87

| GENERAL

(1) The starting rate for newly hired production em-

ployees shall be 15¢ per hours less than the

regular rate for the first thirty (30) days of em-

ployment. -

(2)

(3)

(4)

(6)

(7)

App. 83

The starting rate for newly hired warehouse em-

ployees, except bottle sorters shall be 15¢ per

hour less than the regular rate for the first

thirty (30) days of employment.

The starting rate for newly hired office employ-

ees shall be 15¢ per hour less than the regular

rate during the first thirty (30) days of employ-

ment and 5¢ per hour less than the regular rate

during the second thirty (30) days of employ-

ment.

Longevity pay for covered inside employees shall

be 5¢ per hour over the base rate after five (5)

years permanent, continuous employment and 10¢

per hour over the base rate after ten (10) years

permanent, continuous employment. Longevity

pay is based upon continuous years service with

the Employer without regard to departments.

Temporary, casual and or seasonal employees are

neither covered nor their wages established by the

provisions of this Agreement. Truck loaders who

do not work more than thirty (30) hours during

a work week shall be considered temporary em-

ployees.

Any office employee promoted to a higher rated

job shall be given a fair trial for a period not to

exceed sixty (60) days, at the rate of the higher

job classification. If at the end of the trial per-

iod, it is determined that the employee is not

qualified or adapted to the new position, he or

she shall return to the old position, at the same

rate of pay which was formerly paid for the old

position.

Inside employees bidding on a job in accordance

with seniority provisions shall receive the regu-

lar rate, beginning the first day he or she is

granted the job after the bids are closed.

App. 84

1. REST PERIODS

There shall be two ten (10) minute rest periods dur-

ing each working day: One to be taken in the morning

and one in the afternoon. These rest periods can be taken

during a breakdown, shut-down or change over. In no

event shall employees be required to take the full twenty

(20) minute period, either in the morning or the after-

noon. Shift employees working nine and one-half (914)

hours or more in a day will receive a ten (10) minute

break when he or she completes the eight (8) hour shift.

App. 85

APPENDIX D

SUBCHAPTER IV—LIABILITIES OF AND

RESTRICTIONS ON LABOR AND MANAGEMENT

§ 185. Suits by and against labor organizations

Venue, amount, and citizenship

(a) Suits for violation of contracts between an em-

ployer and a labor organization representing employees in

an industry affecting commerce as defined in this chapter,

or between any such labor organizations, may be brought

in any district court of the United States having jurisdic-

tion of the parties, without respect to the amount in con-

troversy or without regard to the citizenship of the parties.

Responsibility for acts of agent; entity for purposes

of suit; enforcement of money judgments

(b) Any labor organization which represents em-

ployees in an industry affecting commerce as defined in

this chapter and any employer whose activities affect

commerce as defined in this chapter shall be bound by

the acts of its agents. Any such labor organization may

sue or be sued as an entity and in behalf of the employees

whom it represents in the courts of the United States. Any

money judgment against a labor organization in a district

court of the United States shall be enforceable only against

the organization as an entity and against its assets, and

shall not be enforceable against any individual member

or his assets.

Jurisdiction

or against labor organizations in the district courts of the

App. 86

United States, district courts shall be deemed to have jur-

isdiction of a labor organization (1) in the district in which

such organization maintains its principal office, or (2)

in any district in which its duly authorized officers or

agents are engaged in representing or acting for employee

members.

Service of process

(d) The service of summons, subpoena, or other legal

process of any court of the United States upon an officer

or agent of a labor organization, in his capacity as such,

shall constitute service upon the labor organization.

Determination of question of agency

(e) For the purposes of this section, in determining

whether any person is acting as an ‘‘agent” of another

person so as to make such other person responsible for

his acts, the question of whether the specific acts per-

formed were actually authorized or subsequently ratified

shall not be controlling.

June 23, 1947, ce. 120, Title III, § 301, 61 Stat. 156.

App. 87

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

CV 82-0-256

GENERAL DRIVERS AND HELPERS

UNION, LOCAL 554,

Plaintiff,

Vs.

MID-CONTINENT BOTTLERS, INC.

Defendant.

ORDER ON PRETRIAL CONFERENCE

A final Pretrial Conference was held on the 23rd day

of September, 1983. Appearing for the parties were:

M.H. Weinberg

Weinberg & Weinberg, P.C.

8901 Indian Hills Drive

Suite 1

Omaha, NE 68114

Attorney for Plaintiff

George C. Rozmarin

Swarr, May, Smith & Andersen

3535 Harney Street

Omaha, NE 68131

Attorney for Defendant

A. Exhibits in Evidence:

Plaintiff’s Exhibits 1, 2 and 3. Defendant’s Ex-

hibits 100, 101, 102, 105, 106, 107, 108, 109, 111

App. 88

and 112. Plaintiff will object to defendant’s Ex-

hibits 103, 104 and 110 on the basis of materiality.

B. Foundation for Exhibits:

Plaintiff’s Exhibits 1, 2 and 3.

Defendant’s Exhibits 100 through 112.

C. Uncontroverted Facts:

1. Plaintiff, General Drivers and Helpers Union, Lo-

cal No. 554, affiliated with the International Brotherhood

of Teamsters, Chauffeurs, Warehousemen, and Helpers of

America, is a labor organization representing employees

in an industry affecting commerce as defined by the Labor

Management Relations Act of 1947, as amended; is the

exclusive collective bargaining representative of persons

working for defendant in the positions of route sales-

person, production, warehouse, mechanic, vendor and of-

fice; and was party to a collective bargaining agreement

with defendant with respect to wages, hours and conditions

of employment for said route salespersons and inside em-

ployees and in effect from January 1, 1980, through and

including December 31, 1982.

2. Defendant, Mid-Continent Bottlers, a Division of

Universal Foods Corporation, is a Wisconsin corporation,

operating in the State of Nebraska with a plant located

at 709 North 108th Street, Omaha, Nebraska 68154; is an

employer as defined in the Labor Management Relations

Act of 1947, as amended; and is engaged in commerce and

is an industry affecting commerce as that term is defined

in Section 2 of the National Labor Relations Act, as

amended.

App. 89

3. In December, 1980, defendant notified plaintiff of

its desire to reopen certain provisions of the collective

bargaining agreement then in effect between the parties

pursuant to Article XIX of the Agreement, and negotia-

tions were thereupon conducted between the parties dur-

ing March through July of 1981. Defendant was repre-

sented by Darrell W. Foell, Manager, Labor Relations,

and plaintiff was represented by its business agents, Ralph

Saar and Charles Hansen, and by Thomas McFarland,

Secretary-Treasurer of the Local Union.

4. The Company’s proposal was with respect to, and

negotiations involved, a revised sales system, which in-

cluded a change in method of compensation and movement

of some sales work outside the bargaining unit. A final

written offer was presented by Darreli W. Foell on behalf

of defendant to plaintiff on July 9, 1981. The parties were

at an impasse.

5. Defendant implemented its final offer on July 20,

1981, and presented an Addendum to the collective bar-

gaining agreement to plaintiff for signature. Plaintiff

refused to sign the Addendum advising defendant that

there was no agreement.

6. On July 20, 1981, plaintiff filed an unfair labor

practice charge with the National Labor Relations Board

against defendant claiming, among other things, that the

conduct of defendant in implementing its final offer vio-

lated 29 U.S.C. §§ 158(a) (1), (3) and (5).

7. On or about August 26, 1981, the Regional Direc-

tor of the National Labor Relations Board notified the

parties that it would not issue a Complaint on the basis

of said charge.

App. 90

8. Neither party has filed a grievance pursuant to

the collective bargaining agreement or requested of the

other party that the dispute herein be submitted to ar-

bitration.

9. The parties have negotiated a collective bargain-

ing agreement effective January 1, 1983, and in foree and

effect through December 29, 1985, which agreement super-

sedes all prior agreements, and which agreement contains

an advance sales system but with a higher wage scale than

that contained in the Addendum implemented by defendant

to the prior preceding agreement.

D. Controverted and Unresolved Issues:

The parties have agreed and previously advised the

Court that it is their intention to bifurcate the trial in this

matter. Presented herewith are issues relating to liability

and scope of remedy, but not the ultimate remedy. Should

the Court take jurisdiction and find liability, the parties

will attempt to agree as between themselves to the dam-

ages involved, and will ask the Court to retain jurisdiction

to resolve any disputes which might arise therefrom.

The parties were unable to agree on a statement of

controverted and unresolved issues and a statement of

elements, and therefore present them separately. Defend-

ant presents its statement as follows:

1. With respect to the subject-matter jurisdiction of

the Court to decide matters of contract:

a. Is the dispute between the parties covered

by the language contained in Article VI,

‘*Grievance Procedure and Arbitration,” of

App. 91

the 1980-82 collective bargaining agreement

between the parties?

b. If so, was arbitration the mandatory and ex-

clusive remedy available to plaintiff?

2. With respect to the subject-matter jurisdiction of

the Court to decide unfair labor practice issues:

a. Does the dispute between the parties require

a determination of defendant’s right to make

a unilateral change to the collective bargain-

ing agreement, apart from the contract lan-

guage itself, upon an impasse in negotiations

on the ‘‘reopener’’?

b. If so, were defendant’s rights and obligations

eovered by §8(a) (5) of the Act, 29 U.S.C.

§ 185(a) (5)?

ce. If so, is such determination within the ex-

clusive jurisdiction of the National Labor

Relations Board?

d. Does dismissal of plaintiff’s § 8(a) (5) unfair

labor practice charge by the NLRB bar this

action?

3. Was there an agreement by plaintiff to matters

contained in the Addendum implemented by defendant by

virtue of plaintiff’s actions and representations and by

operation of Article XII, Section 1(b) of its International

Union Constitution?

4. With respect to the parties’ rights and obligations

pursuant to the contract:

a. Was defendant entitled to implement its final

offer affecting wages and working conditions

eee

App. 92

upon impasse in negotiations pursuant to Ar-

ticle XIX, ‘‘Reopener,” of the 1980-82 collec-

tive bargaining agreement between the par-

ties.

b. Was defendant entitled to implement its fi-

nal offer affecting bargaining unit work upon

said impasse?

e. Did the language contained in Article X,

‘*Maintenance of Standard,” and .\rticle XIX,

‘*Reopener,” of said agreement require de-

fendant to obtain approval and agreement

by plaintiff before making such changes?

5. With respect to defendant’s right to make a uni-

lateral change upon impasse, do there exist limitations in

law other than those which may be contained in the Agree-

ment?

6. Has plaintiff’s prayer for specific performance

become moot by virtue of the 1983-85 collective bargain-

ing agreement between the parties?

7. Statement of Elements:

a. For defendant to establish an exclusive con-

tractual remedy it must show that the cen-

tral dispute involves a ‘‘controversy arising

over the interpretation of, or adherence to,

the terms or provisions” of the 1980-82 Agree-

ment and that arbitration is the exclusive

remedy.

b. For defendant to establish that the Court is

without subject-matter jurisdiction regard-

ing any other issues it must show that those

App. 93

issues involve matters which were the sub-

ject of plaintiff’s charge within the NLRB

and which are within the exclusive jurisdic-

tion of the NLRB.

. For plaintiff to establish this Court has jur-

isdiction it must show that either the dispute

does not fall within Article VI of the Agree-

ment or that arbitration thereunder did not

provide an exclusive remedy, and that no

other issue exists which is within the exclu-

sive jurisdiction of the NLRB.

. For plaintiff to establish that defendant

breached the Agreement, it must show that

the Agreement itself limits defendant’s right

to make changes under the ‘‘Reopener” to

those mutually agreed upon.

For defendant to establish that there existed

a mutual agreement, it must show that plain-

tiff agreed to defendant’s last offer or that

the offer was accepted by operation of Article

XII of plaintiff’s Constitution.

. For defendant to establish that plaintiff’s

prayer for specific performance is moot it

must show that the 1980-82 Agreement has

expired and been superseded by an agree-

ment providing for a pre-sell System.

App. 94

Plaintiff’s statement of controverted and unresolved

issues and statement of elements are as follows:

1. Can the defendant-employer unilaterally change

wages, hours, and working conditions under a collective

bargaining agreement under Article XXIX, Reopener, of

the plaintiff Exhibit No. 1?

2. Can the defendant-employer unilaterally transfer

work assignments outside the bargaining unit to ‘‘super-

visor” and other non-bargaining unit employees who were

and are not bargaining unit employees?

3. If the answer to either (a) or (b) above is yes,

does Article X, Maintenance of Standards, require the de-

fendant-employer to obtain the Union’s approval to a

change in wages and the composition of the bargaining

unit?

4. Does the dismissal of the ‘‘failure to bargain” un-

fair labor practice charge by the National Labor Rela-

tions Board bar a contractual action for specific per-

formance?

5. Does the fact that the plaintiff’s Exhibit No. 1

has an arbitration clause (Article VI) require the plaintiff

to arbitrate matters which are to be negotiated as distin-

guished from matters which are to be interpreted under

the collective bargaining agreement?

6. If arbitration is required, is the exclusive remedy

arbitration so as to bar this action for specific perform-

ance of the collective bargaining agreement?

7. Did the negotiation of a new collective bargain-

ing agreement beginning on January 1, 1983, covering the

period January 1, 1983, through December 29, 1985, con-

stitute an agreement to dismiss this action for specific per-

formance?

8. Statement of Elements: For the plaintiff to pre-

vail in this case, the plaintiff must show the following:

a .

That a unilateral modification of the collec-

tive bargaining agreement cannot modify the

agreement.

That the maintenance of standards clause of

the contract requires the employer-defendant

to maintain the current conditions of employ-

ment in absence of any bilateral change in

those conditions.

That the determination of the National Labor

Relations Board, as to the existence or non-

existence of an unfair labor practice, is ab-

solutely and totally immaterial to the deter-

mination of the specific performance of a

contract.

That the National Labor Relations Board has

no jurisdiction in determining the terms and

conditions of a collective bargaining agree-

ment specificall, or in determining their op-

eration insofar as specific performance.

That the arbitration clause has no operative

effect in this case, as the arbitration clause

does not cover interest arbitration, wherein

the terms and conditions of employment are

negotiated.

That the arbitration clause is further not ap-

plicable since it is not a mandatory arbitration

clause.

App. 96

g. That the arbitration clause is not the sole

and exclusive remedy for obtaining specific

performance of the terms and conditions of

a collective bargaining agreement.

h. That there was no tacit agreement or ac-

quiescence in the actions of the employer in

implementing their unilateral change in the

terms and conditions of employment under

Article XII of the Constitution of the Inter-

national Brotherhood of Teamsters because

said particular article allows the Executive

Board to take over negotiation in an attempt

to further negotiate the contract themselves,

even in those situations where the employees

take no strike vote. This is especially so when

the employees vote not to accept the offer

made.

i. That International Brotherhood of Teamsters

has no effect in this case, as that is solely

between the members of the local union itself,

and the defendant-employer is not a third

party beneficiary of said contract.

j. That negotiation of a new agreement for the

year beginning January 1, 1983 and running

through December 29, 1985 is not a waiver of

any causes of action accrued under the prior

agreement, or an acquiescence in what has

been done since the wages in this agreement

were substantially improved.

E. Witnesses: All witnesses whom the plaintiff ex-

pects to call to testify, except those who may be called for

impeachment purposes only are:

App. 97

Ralph Saar

Charles Hansen

Thomas McFarland

Jerry Younger

c/o Teamsters Loeal No. 554

4349 South 90th Street

P. O. Box 27005

Omaha, NE 68132

All witnesses whom the defendant expects to call to

testify, except those listed in the preceding paragraph as

expected to be called by the plaintiff and except those who

may be called for impeachment purposes only, are:

Darrell W. Foell

Manager, Labor Reiations

Universal Foods Corporation

433 East Michigan

Milwaukee, Wisconsin 53202

Dale Richardson

Vice President/General Manager

Mid-Continent Bottlers, Inc.

709 South 108th Street

Omaha, NE 68154

F. Expert Witnesses’ Qualifications: Experts to be

called and their qualifications are: None.

G. Depositions and Other Discovery Documents:

1. All depositions, answers to written interrogatories

and requests for admissions or portions thereof which are

expected to be offered in evidence by the plaintiff as part

of the plaintiff’s case-in-chief are:

None except plaintiff reserves the right to take

the deposition of Charles Hansen to be used and

presented for trial due to his heart condition.

Objections by the defendant are: None.

App. 98

2. All depositions, answers to written interrogatories,

and requests for admissions or portions thereof which are

expected to be offered in evidence by the defendant as part

of the defendant’s case-in-chief are: None.

H. Length of Trial: Counsel estimate the trial will

consume not less than one (1) day, nor more than three

(3) days and probably two (2) days.

I. Trial Date:

GENERAL DRIVERS AND

HELPERS UNION,

LOCAL NO. 554, Plaintiff,

By /s/ M. H. Weinberg

of WEINBERG & WEINBERG, P.C.

8901 Indian Hills Drive,

Suite 1

Omaha, NE 68114

(402) 397-0999

MID-CONTINENT BOTTLERS,

INC.

Defendant,

By /s/ George C. Rozmarin

of SWARR, MAY, SMITH &

ANDERSEN

3535 Harney Street

Omaha, NE 68131

(402) 341-5421

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.