Appendix — Interstate Brands Corp. v. Bakery Drivers & Bakery Goods Vending Machines, Local No. 550, International Brotherhood of Teamsters

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

DATED AND DECIDED JANUARY 239, 1999

INTERSTATE BRANDS CORPORATION,

Plaintiff-Appellant,

BAKERY DRIVERS & BAKERY GOODS

VENDING MACHINES, LOCAL UNION NO.

550,

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, Defendant-Appellee.

Docket No. 98-7194

United States Court of Appeals,

Second Circuit.

Argued Oct. 29, 1998.

Decided January 29, 1999

* * he

Before: FEINBERG, VAN GRAAFEILAND, and

LEVAL, Circuit Judges.

es FEINBERG, Circuit Judge:

Plaintiff Interstate Brands Corporation (IBC) appeals

from the grant of summary judgment in the United States

District Court for the Eastern District of New York, Sterling

Appendix A

Johnson, Jr., J., in favor of defendant Bakery Drivers &

Bakery Goods Vending Machines Local Union 550,

International Brotherhood of Teamsters (the Union) on

IBC’s action, filed pursuant to Section 303 of the Labor

Management Relations Act (LMRA), 29 U.S.C. § 187, to

recover damages from the Union’s strike, an alleged illegal

secondary boycott in violation of Section 8(b)(4)(i)-(11)(B)

and 8(b)(4)(i)-(ii)(D) of the National Labor Relations Act

(NLRA), 29 U.S.C. §§ 158(b)(4)(i)-(11)(B) and 158(b)(4)(i)-

(ii)(d). In a thorough opinion, the district court dismissed

the suit on the ground that the parties’ collective bargaining

agreement (the Agreement) requires that the dispute be

heard by an arbitrator. See Interstate Brands Corp. v. Bakery

Drivers & Bakery Goods Vending Machines Local 550,

1998 WL 19974 (E.D.N.Y. Jan.20, 1998). For the reasons

stated below, we affirm.

I. Background

According to the record before us, IBC is a Delaware

corporation engaged in the production, marketing and

distribution of cake and bakery products in various regions

of the United States. For many years, IBC has distributed

Dolly Madison cake products in the New York metropolitan

area through three non-union firms independently owned

and operated by Sam Jacobson (the Jacobson companies).

In July 1995, IBC acquired the Continental Baking

Company (CBC), which sold and distributed Hostess Cake

and Wonder Bread products in the New York metropolitan

area. As aresult, IBC became the employer of CBC’s Route

Salespersons and assumed the terms and conditions of the

Agreement entered into by the Union, which represents

Appendix A

Route Salespersons, and CBC for the period from March

1994 to March 1997.

Article VI of the Agreement contains an unusually

broad arbitration clause that requires the parties to arbitrate

all complaints, disputes or grievances arising

between them involving questions of

interpretation or application of any clause or

matter covered by this Agreement, or any act or

conduct or relation between the parties hereto,

directly or indirectly.

Article XXII of the Agreement, reproduced in full in the

Appendix, excludes from arbitration certain disputes over

the employer’s distribution policies. Article XXII(A)

provides that in view of

changes that have occurred in retail food stores,

i.e., the rapid disappearance of small individual

stores and their replacement at an accelerated rate

by the large corporate and cooperative food

chains . . . it may be necessary to recognize the

appropriateness of considering changes in

delivery, merchandising and compensation

methods.

Under Article XXII(A), the employer (now IBC) may

request a meeting with the Union during the term of the

Agreement “for the purpose of negotiating and mutually

agreeing on different commission payments or other

methods of compensation or delivery methods which may

Appendix A

be desirable under such changed conditions.” Further, “in

the event of such request, the parties will meet promptly

for the purposes outlined above.” Article XXII(B) provides

that “[i]n the event the parties are unable to agree, the

dispute shall not be subject to arbitration.” Finally, Article

XXII(C) provides that

Other provisions of the contract notwithstanding,

the parties recognize that the employer may

decide to change its distribution methods during

the term of this agreement only. Accordingly, it

is understood that the employer has the right to

reopen the contract during the contract term for

the sole purpose of negotiating the effects of such

changed distribution. In such reopener, the

parties will meet and bargain in good faith to

resolve differences, if any. If the parties fail to

reach agreement and the employer implements

such distribution changes the Union shall have

the right to strike and the employer shall have

the right to lock out over the distribution change

issues.

The Agreement’s validity is undisputed.

Shortly after IBC’s acquisition of CBC, Richard Volpe

(Volpe), the Union’s Executive Officer, claimed that IBC’s

long-standing practice of distributing Dolly Madison cake

products through the Jacobson companies was a “change”

in distribution policy that triggered Article XXII of the

Agreement. The Union’s position was that, because of IBC’s

acquisition of CBC and assumption of CBC’s obligations

Appendix A

under the Agreement, Union members were entitled to

distribute Dolly Madison products in addition to Hostess

Cake and Wonder Bread. Despite the Union’s claim, IBC

continued to distribute Dolly Madison products through the

Jacobson companies. Volpe, in turn, sent letters to IBC in

August 1995 and February 1996 threatening a strike under

Article XXII(C).

On September 9, 1996, the Union struck IBC’s Hostess

Cake operation. IBC responded by filing an unfair labor

practice charge with the National Labor Relations Board

(“NLRB”), alleging an illegal secondary boycott in violation

of Section 8(b)(4) of the NLRA. The Union reached a

settlement with the NLRB on September 11, 1996 pursuant

to which it agreed to end the strike. Rather than returning

to work the next day, however, the Union expanded the

strike to include IBC’s Wonder Bread operation. The strike

ended on September 13, 1996. According to IBC’s

complaint in the district court, the Union called the strike

in order to pressure IBC to stop distributing Dolly Madison

products through the Jacobson companies and, instead,

assign that business to Union members.

IBC filed this suit under Section 303 of the LMRA for

damages caused by the Union’s allegedly unlawful

secondary activity. IBC now appeals from the district court’s

decision that the Agreement requires arbitration of this

claim.

II. Discussion

We review the district court’s ruling on arbitrability de

novo. See Collins & Aikman Products Co. v. Building

Appendix A

System, 58 F.3d 16, 19 (2d Cir.1995). This appeal presents

three principal issues: (1) whether Article VI of the

Agreement covers IBC’s claim for damages under LMRA

§ 303; (2) whether that claim comes within the scope of the

exception to arbitration contained in Article XXII; and (3)

whether this court’s decision in Old Dutch Farms, Inc. v.

Milk Drivers & Dairy Employees Local 584, 359 F.2d 598

(2d Cir.), cert. denied, 385 U.S. 832, 87 S.Ct. 71, 17 L.Ed.2d

67 (1966), precludes the arbitration of IBC’s claim. In

addition, IBC argues that summary judgment was improper

because there were genuine issues of material fact that still

had to be decided in the district court.

A. The Scope of the Article VI Arbitration Ciause

The Supreme Court made clear almost 40 years ago in

the Steelworkers Trilogy that there is a strong federal policy

favoring the arbitrability of labor disputes. See United

Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S.

593, 596, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United

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

574, 578, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United

Steelworkers v. American Mfg. Co., 363 U.S. 564, 567-68,

80 S.Ct. 1363, 4 L.Ed.2d 1432 (1960). Normally, the

inclusion of an arbitration clause in a collective bargaining

agreement creates a “presumption of arbitrability” as to

disputes that arise between the parties to that agreement.

See AT & T Technologies, Inc. v. Communications

Workers, 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d

648 (1986). This presumption “is particularly applicable,”

id., when the arbitration clause is broad, as it is here.

Appendix A

However, IBC contends the Supreme Court’s recent

decision in Wright v. Universal Maritime Svc. Corp., __

U.S. __, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998), decided

after this appeal was argued, makes the presumption of

arbitrability inapplicable. In Wright, the Court held that a

longshoreman was not barred from suing his employer under

the Americans with Disabilities Act of 1990, 42 U.S.C.

§ 12101 et seq., despite a general arbitration clause in the

collective bargaining agreement (CBA) negotiated between

his employer and his union. The Court held that the

presumption of arbitrability in this context “does not extend

beyond the reach of the principal rationale that justifies it,

which is that arbitrators are in a better position than courts

to interpret the terms of aCBA.” Id. at__, 119 S.Ct. at 395.

Where a dispute “ultimately concerns not the application

or interpretation of any CBA, but the meaning of a federal

statute”, id. at__, 119 S.Ct. at 396, the presumption does

not apply. Instead, Wright requires a court to determine

whether, without use of the presumption, an “ordinary

textual analysis of a CBA show/{s] that matters which go

beyond the interpretation and application of contract terms

are subject to arbitration.” Id.

The Wright Court also stated that where the matter

beyond the interpretation and application of contract terms

is the union-negotiated waiver of an employee’s statutory

right to a judicial forum, the waiver will be given effect

only if it is “clear and unmistakable.” Id. at _- ,119S.Ct.

at 395-96. The Court went on to state, however, that where

the matter involves an individual employee’s waiver of his

or her own rights through an individually, as opposed to

collectively, bargained employment contract, this “clear and

Appendix A

unmistakable” standard is not applicable. See id.; see also,

e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,

111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (holding that

arbitration clause covering “any dispute, claim or

controversy” required arbitration of claim brought under

Age Discrimination in Employment Act by individual

employee in securities industry). Wright does not provide

express guidance on whether the “clear and unmistakable”

standard applies where the statutory right at issue belongs

to the employer, as it does here. However, the underlying

rationale of the decision leads us to conclude that on this

record it does not.

Wright’s “clear and unmistakable” standard is based

upon a concern about allowing a union to waive an

individual employee’s statutory rights — i.e., a concern

about the waiver of one’s rights by someone else. Where,

however, one waives one’s own rights, the “clear and

unmistakable” standard is not required. We thus see no

reason why an employer that, like IBC, has individually

negotiated a CBA with a union’ should be held to have

waived its statutory rights only if the waiver was “clear

and unmistakable.” Such an employer has negotiated on

behalf of itself.

Thus, it seems appropriate for us to infer from Article

VI of the Agreement that IBC has waived its right to a

judicial forum for the vindication of its federal statutory

1. On the record before us, it appears that the Agreement here

was negotiated individually by CBC with the Union. IBC assumed

the obligations of the Agreement and clearly has no greater right

under it than CBC.

Appendix A

claim. Article VI requires a party to arbitrate “any act or

conduct or relation between the parties hereto, directly or

indirectly.” As noted earlier, this language is unusually

provision is quite similar to one our court deemed “very

broad” in Associated Brick Mason Contractors v

Harrington, 820 F.2d 31, 35 (2d Cir.1987). Indeed, the two

clauses are almost identical. See id. at 36. Such language

“could hardly be broader,” id., and is reasonably read to

reach matters that go beyond the application and

interpretation of the Agreement. Furthermore, this result

compelled as a matter of contract construction, without the

use of any presumption. IBC agreed to arbitrate any dispute

“involving questions of interpretation or application of any

clause or matter covered by [the] Agreement, or any act or

conduct or relation between the parties [t}hereto, directly

or indirectly.” (emphasis supplied). “[A)}my act or conduct

or relation between the parties” must necessarily mean

something other than “questions of interpretation or

application of any clause or matter covered by [the)

Agreement,” for to hold otherwise would render this

language mere surplusage. See Rothenberg v Lincoln Farm

Camp, Inc., 755 F.2d 1017, 1019 (2d Cir. 1985), where we

stated that an interpretation “that gives a reasonable and

effective meaning to al! the terms of a contract us generally

preferred to one that leaves a part unreasonable or of no

effect.”

Thus, we hold that IBC’s LMRA § 303 claum comes

within the scope of the arbitration clause im Article VI

10a

Appendix A

B. The Article XXII Arbitration Exclusion Provision

We next turn to whether IBC’s claim comes within

Article XXII’s exclusion from arbitration of certain

distribution disputes. IBC contends that because the Union’s

1996 strike was called to protest IBC’s non-Union |

distribution of Dolly Madison products, a suit for damages

caused by that strike is a “dispute” over distribution policy

that “shall not be subject to arbitration.” The Union argues,

and the district court agreed, that the word “dispute” in this

context has a far narrower scope. According to the Union,

the only “dispute” excluded from arbitration is a dispute

over what IBC’s methods of distribution shall be — that is,

the parties may not resolve their differences over

distribution methods by resorting to “interest arbitration,”

in which an arbitrator would decide whether IBC may

implement its proposed change(s).? Instead, the Union

argues, Article XXII(C) allows the parties to use a strike or

lockout — one of only three exceptions to the Agreement’s

no- strike/no-lockout clause — to “negotiate” changes in

this fundamental work issue.’

2. See 5 Labor Law § 21.08 (Theodore Kheel ed., 1998)

(“ ‘Interest arbitration’ is the arbitration of new contract terms,

usually resorted to when the parties are unable to agree on the terms

of a new, renewed, or reopened contract”).

3. The other two exceptions to the no-strike/no-lockout clause

are (1) when one of the parties to the Agreement fails to abide by

the decision of an arbitrator; and (2) when IBC fails to make

required contributions to the Union’s Health Benefits Fund or

Pension Fund.

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Appendix A

IBC’s claim that a suit for damages caused by an illegal

strike over distribution issues is a “dispute” under Article

XXII(B) is not the logical meaning of that provision. As

the district court observed:

Here, Plaintiff's claim is not the type of dispute

contemplated in Article XXII(B). First and

foremost, Plaintiffs claim is not directly related

to a change in distribution policies. Plaintiff did

not bring this action based on a dispute regarding

a change in “commission payments or other

methods of compensation or delivery methods”

which it wished to implement. Instead, Plaintiff

filed this action seeking damages resulting from

Local 550’s strike. Second, Plaintiff does not

make a claim under Article XXII. Plaintiff's

claim is a Section 303 claim for damages.

Interstate Brands, 1998 WL 19974 at *5. In other words,

IBC’s argument confuses its dispute over the damages

caused by the Union’s allegedly illegal strike with the

underlying dispute that caused the strike. These disputes

are distinct, not one and the same.

For these reasons, IBC’s LMRA § 303 claim is not

excluded from arbitration under Article XXII of the

Agreement.

C. The Effect of Old Dutch Farms, Inc. v. Milk Drivers

& Dairy Employees Local 584.

IBC also argues that its LMRA § 303 claim is not

arbitrable under this court’s decision over three decades ago

12a

Appendix A

in Old Dutch, 359 F.2d 598. The “principal issue”, id. at

600, in Old Dutch was whether an employer’s LMRA

§ 303 claim against a union was arbitrable pursuant to an

arbitration clause that read as follows:

[A]ny and all disputes and controversies arising

under or in connection with the terms and

provisions of this agreement, or in connection

with or relating to the application or

interpretation of any of the terms or provisions

hereof, or in respect to anything not herein,

expressly provided but germane to the subject

matter of this agreement * * * shall be submitted

for arbitration to anarbitrat or * * * (emphasis

supplied)

Id. The court in Old Dutch held that (1) the arbitration clause

did not commit to arbitration disputes unrelated to the

application and interpretation of particular provisions of the

collective bargaining agreement; and (2) LMRA § 303

claims were not germane to the subject matter of the

agreement. See id. at 601. Accordingly, the court concluded

that “[s]ince nothing in the record or collective agreement

.. . provide[d] a basis for finding that the employer and the

union agreed to submit the employer’s damage claim to an

arbitrator,” id. at 604, the employer’s LMRA § 303 claim

was not arbitrable. Old Dutch, however, is distinguishable

from the present case because, as previously explained,

Article VI of the Agreement is not as limited as its

counterpart in Old Dutch. Article VI commits to arbitration

“any act or conduct or relation between the parties hereto,

directly or indirectly,” even if not germane to the subject

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Appendix A

matter of the Agreement. IBC’s reliance on Old Dutch is

thus misplaced.

IBC also relies on Old Dutch’s assertion that “absent a

clear, explicit statement in the collective bargaining contract

directing an arbitrator to hear and determine the validity of

tort damage claims by one party against another, it must be

assumed that the employer did not intend to forego his rights

under Section 303.” Id. at 603. For two reasons, we decline

to follow this language. First, since Old Dutch was decided

the Supreme Court has repeatedly held that a party to a

contract who has a federal statutory claim may be limited

to an arbitral forum even though the agreement requiring

arbitration of that claim did not contain “a clear, explicit

statement” to that effect. See, e.g, Gilmer, 500 U.S. 20, 111

S.Ct. 1647, 114 L.Ed.2d 26; Shearson/American Express,

Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d

185 (1987); Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d

444 (1985). Second, following the language of Old Dutch

would, in effect, conflict with a key aspect of the holding

in Wright. As already noted, the Court there stressed that

plaintiff Wright had not individually waived his right to a

judicial forum for his statutory claim; his union had

negotiated that. In this case, however, IBC itself negotiated

away its right. Under the circumstances, we think it

inappropriate to extend to an individual employer like IBC

Wright’s requirement that waiver of a judicial forum for

statutory claims must be “clear and unmistakable.”

Accordingly, we conclude that IBC’s LMRA § 303

claim may be arbitrated despite the absence of a clear,

explicit statement to that effect.

l4a

Appendix A

D. Genuine Issues of Material Fact

Finally, IBC contends that summary judgment was

improper in light of assertions made by Volpe to members

of the Union and IBC that the Union’s objection to IBC’s

use of the Jacobson companies was not subject to arbitration

under the Agreement. According to IBC, these statements

create a genuine issue of material fact as to the arbitrability

of its LMRA § 303 claim. We disagree. Like the contention

that IBC’s statutory claim comes within Article XXII’s

exclusion of certain distribution disputes from arbitration,

this argument confuses IBC’s dispute over the damages that

resulted from the allegedly illegal strike with the underlying

dispute that caused the strike. Whether or not Volpe

considered the Union’s distribution dispute to be arbitrable

is irrelevant to the arbitrability of IBC’s LMRA § 303 claim

based on damages caused by the Union’s allegedly unlawful

secondary activity.

Conclusion

We conclude that the parties’ collective bargaining

agreement requires that IBC’s LMRA § 303 claim be

arbitrated, and we affirm the judgment of the district court.

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Appendix A

ATTACHMENT

Appendix

ARTICLE XXII — REVIEW OF DISTRIBUTION

POLICIES:

(A) The Union and Employer recognize the changes

that have occurred in retail food stores, i.e. the rapid

disappearance of small individual stores and their

replacement at an accelerated rate by the large corporate

and cooperative food chains. Accordingly, it may be

necessary to recognize the appropriateness of considering

changes in delivery, merchandising and compensation

methods. In view of this, the Employer covered by this

Agreement may at any time during the life of the Agreement

request a meeting with the Union for the purpose of

negotiating and mutually agreeing on different commission

payments or other methods of compensation or delivery

methods which may be desirable under such changed

conditions.

In the event of such request, the parties will meet

promptly for the purposes outlined above.

(B) In the event the parties are unable to agree, the

dispute shall not be subject to arbitration.

the parties recognize that the employer may decide to change

its distribution methods during the term of this agreement

only. Accordingly, it is understood that the employer has

16a

Appendix A

the right to reopen the contract during the contract term for

the sole purpose of negotiating the effects of such changed

distribution. In such reopener, the parties will meet and

bargain in good faith to resolve differences, if any. If the

parties fail to reach agreement and the employer implements

such distribution changes the Union shall have the right to

strike and the employer shall have the nght to lock out over

the distribution change issues.

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APPENDIX B — MEMORANDUM AND ORDER

OF THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

DATED JANUARY 20, 1998

INTERSTATE BRANDS CORPORATION,

Plaintiff,

BAKERY DRIVERS & BAKERY GOODS

VENDING MACHINES, LOCAL UNION NO.

International Pt of Teamsters,

Defendant.

No. 96 CV 4454(SJ).

United States District Court, E.D. New York.

| Jan. 20, 1998.

* * *

MEMORANDUM AND ORDER

JOHNSON, J.

The plaintiff filed the present action pursuant to Section

303 of the Labor Management Relations Act, as amended

(the “LMRA”), 29 U.S.C. § 187, to recover damages from

the defendant’s strike, an alleged illegal secondary boycott

in violation of Sections 8(b)(4)(i)-(1i)(B) and 8(b)(4)(1)-

(ii)(D) of the National Labor Relations Act (the “NLRA”),

29 U.S.C. §§ 158(b)(4)(i)-(i1)(B) and 158(b)(4)(i)-(ii)(d).

18a

Appendix B

The defendant has moved for summary judgment

pursuant to Rule 56(c) of the Federal Rules of Civil

Procedure. For the reasons set forth herein, the defendant’s

motion for summary judgment is granted.

STATEMENT OF FACTS

For the purposes of this summary judgment motion,

the defendant does not dispute the facts alleged by the

plaintiff in its amended complaint (the “Complaint’”). The

defendant relies upon the language of the collective

bargaining agreement between the parties to support its

motion.

I. The Collective Bargaining Agreement

Interstate Brands Corporation (“Plaintiff”) is a

nationwide producer and distributor of cake products.

Complaint ¥ 3. In 1995, Plaintiff acquired the Continental

Baking Company (“CBC”) by merger. Id. Prior to the

merger, on February 7, 1995, Local Union No. 550 (“Local

550” or “Defendant”) entered into a collective bargaining

agreement for the period from March 6, 1994 through March

8, 1997 (the “Agreement”) with CBC. Id. at 9 5. Since

Plaintiff's acquisition of CBC, Plaintiff has assumed the

terms and conditions of the Agreement, including its

arbitration provisions. Id. The Agreement controls the

present dispute.

Under Article VI of the Agreement, disputes between

the parties are governed by a broad arbitration clause.

(Declaration of Richard J. Volpe “Volpe Decl.” Ex. A at

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Appendix B

p. 3-4). Article VI(A) states, “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 Agreement or any act or conduct or relation between

the parties hereto directly or indirectly.” Id. If the parties

cannot resolve the disputes through the procedures set forth

in the Agreement, then either party has the right to refer the

matter to arbitration. Id. at 4.

In addition to the broad arbitration clause, the

Agreement expressly excludes certain disputes from

arbitration. In particular, disputes under Article VIII(A) and

(D) and Article XXII' are not subject to the arbitration

1. Article XXII reads as follows:

ARTICLE XXII — REVIEW OF

DISTRIBUTION POLICIES:

(A) The Union and Employer recognize the changes

that have occurred in retail food stores, i.e. the rapid

disappearance of small individual stores and their

replacement at an accelerated rate by the large

corporate and cooperative food chains. Accordingly,

it may be necessary to recognize the appropriateness

of considering changes in delivery, merchandising and

compensation methods. In view of this, the Employer

covered by this Agreement may at any time during the

life of the Agreement request a meeting with the Union

for the purpose of negotiating and mutually agreeing

on different commission payments or other methods

of compensation or delivery methods which may be

desirable under such changed conditions.

(Cont’d)

20a

Appendix B

provision of the Agreement. Id. at 4-5, 13-14. Pursuant to

Article XXII(B), where the parties are unable to agree on

proposed changes in distribution policies, the dispute is not

arbitrable. Id. at 14. Furthermore, Article XXII(C) permits

Local 550 to strike over disputes concerning distribution

policies under certain circumstances. Id. In addition,

Plaintiff may lock out employees over these disputes. Id.

Local 550 has never taken part in an arbitration under Article

XXII with Plaintiff or other employers under analogous

provisions of labor contracts. (Affidavit of William P.

Harrington “Harrington Aff.” Ex. A at 80-82).

(Cont’d)

In the event of such request, the parties will meet

promptly for the purposes outlined above.

(B) In the event the parties are unable to agree, the

dispute shall not be subject to arbitration.

the parties recognize that the employer may decide to

change its distribution methods during the term of this

agreement only. Accordingly, it is understood that the

employer has the right to reopen the contract during

the contract term for the sole purpose of negotiating

the effects of such changed distribution. In such

reopener, the parties will meet and bargain in good

faith to resolve differences, if any. If the parties fail to

reach agreement and the employer implements such

distribution changes the Union shall have the right to

strike and the employer shall have the right to lock out

over the distribution change issues.

2la

Appendix B

II. The Strike

Plaintiff had produced Dolly Madison cake products

for many years prior to its acquisition of CBC. Complaint

4 6. The Dolly Madison cake products have been distributed

in the New York metropolitan area by three companies

owned by Mr. Sam Jacobson (the “Jacobson Companies’’)

Id. Plaintiff also produces Hostess cake products which are

transported, distributed and sold by Local 550 members in

the New York area. Id. at #§ 11-13. Neither Local 550 nor

its members have ever handled, transported, distributed or

otherwise dealt with Dolly Madison cake products. Id. at

q 14.

Beginning in July 1995, Local 550 demanded that

Plaintiff cease the distribution of Dolly Madison cake

products in the New York area through the Jacobson

Companies. Id. at J] 15-16. Local 550 claimed that such

distribution violated the terms of the Agreement. Id. In a

letter dated August 25, 1995, Richard Volpe (“Volpe”),

Executive Officer of Local 550, issued a strike notice to

Jim Forbes, General Manager of Plaintiff's Jamaica Facility,

stating that Plaintiff was in violation of Article XXII(C)

for its distribution of Dolly Madison cake products.

(Harrington Aff. Ex. D). Another strike notice was issued

by Volpe in a letter dated February 28, 1996. (Harrington

Aff. Ex. E). The strike was to be effective 12:01 p.m. on

March 3, 1996. Id. Volpe stated, in a memorandum to Local

550 members dated March 4, 1996, that he did not consider

the dispute to be arbitrable. (Harrington Aff.Ex. F).

On September 9, 1996, Local 550 commenced a strike

against Plaintiff pursuant to Article XXII of the Agreement,

22a

Appendix B

reasoning that Plaintiff violated the Agreement by failing

to distribute Dolly Madison cake products through Local

550 employees and/or paying commissions to Local 550

employees for the Dolly Madison cake products distributed

by the Jacobson Companies. Complaint Ff] 17, 22. Local

550’s strike objective was to force Plaintiff to cease

distribution of Dolly Madison cake products through the

Jacobson Companies and to force Plaintiff to assign that

work to Local 550 members. Id. at Ff 17-18.

Plaintiff filed an unfair labor practice charge with the

National Labor Relations Board (the “NLRB”™) against Local

550 alleging secondary boycott violations of Sections

8(b)(4)(i)-(ii(B) and 8(b)(4)(i)-(iiKD) of the NLRA on

September 9, 1996. Id. at ¢ 19. Shortly thereafter, Local

550 entered into a settlement agreement with the NLRB.

Pursuant to this settlement, Local 550 agreed to end the

strike. Id. instead, Local 550 expanded the strike causing

Plaintiff to suffer further damages with regard to the sale

of its products. Id. at ¢ 22.

Plaintiff filed the present action pursuant to Section 303

of the LMRA to recover damages from Local 550's strike.’

DISCUSSION

Defendant brings the present summary judgment

motion because it contends that Plaintiff has initiated this

2. Section 303 establishes jurisdiction of the district courts

over suits for da.nages resulting from Sectvon 8(b)\ 4) of the NLRA

Section 8(b)(4) prohibits a umon or its agents from engaging =

certain unfair labor practices as defined mm that secon.

Appeedis 8

action im the wrong forum Accordmg te Defendant.

Plaintiffs clasm 1s swbyect to artetrateoe ember Ge broad

arbitration clause of the Agreement Thes Pleeenf? «

required to bring thes actor as am artetrateem As s -eeet

Defendant states that its summary vadgment merece theo at

be granted and the ( oemplemnt chowad be dremeneet

Plant: ff. om the other heed. states thet semmmery

judgment 1s inappropriate om thes case for 9 summier of

reasons First. Plasnt: ff states thet ots ¢ lee @ met artecreter

under the provissoms of the Agreement Secomi Pinan 7

contends that Sectiom 30) clasmes ere set ertetretie

generally. as a matter of lew amd pote y Fenelly Pine

argues that there are gemarme vesees of meters! fer! o

dispute thereby making s temmery pedgmer ee ard

improper

| Semman )edgmenc

Summary jedgment is proper “:{ the pleadings

SePotitoms amewert to mtertogstore emt ates on

file. together exth the affadewwme (ary chew Gat Gere «

MO Ge ermE ieee Be to ay meter Le for! eed Case he mer ong

party © entitled te « jedgmeet a: «© Geter of Wwe ~

Fed R.Ciw FP. Sétc) The court's Qemetiee c cet Ge cemetiee

dreputed isewes of fact Set omy to deters etether fers

2 gemerme teeee to be eed See Anereee © Lierty

Lobby, Inc. 477 US 342. 269, 108 5. Ch D505. OF L Bae be

202 (1906), Easemee Mach Co + Usenet Geen G4! F De

469. 473 (26 Cor 1988) be eteng Gee Geert: Ge

court ss requered to vere Ge erufemee @ Ge bgtt gee

favorable to the mommmow ag perm) bee Wermeates fo

24a

Appendix B

Indus. Co. v. Zenith Radice Corp., 475 U.S. 547, 586-87

(1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,

90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Furthermore, the

party seeking summary judgment has the burden of showing

that no genuine factual dispute exists. See Cronin v. Aetna

Life Ins. Co., 46 F.3d 196, 202 (2d Cir.1995).

Once the movant has come forward with appropriate

support demonstrating that there is no genuine issue of

material fact to be tried, the burden shifts to the nonmoving

party to present similar support setting forth specific facts

about which a genuine triable issue remains. See Anderson,

477 U.S. at 250. Mere conclusory allegations will not

suffice. Instead, the nonmoving party must, by deposition,

interrogatory answers, or other documentation allowed

under the rule, adduce “specific facts showing that there is

a genuine issue for trial.” Fed.R.Civ.P. 56(e). See also

Barnett v. Howaldt, 757 F.2d 23, 26 (2d Cir.1985).

II. Arbitrability of Plaintiff's Claim

The threshold issue before this Court is whether

Plaintiff's claim is subject to arbitration under the

Agreement. The question of whether a dispute is arbitrable

is one for the court to decide based on language of the

contract. See AT & T Technologies, Inc. v. Communications

Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415,

89 L.Ed.2d 648 (1986); United Steelworkers of America v.

Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct.

1347, 4 L.Ed.2d 1409 (1960).? It is well settled that a party

3. This case is one of the three landmark Supreme Court cases

which set forth the principles which govern the arbitrability of labor

(Cont'd)

25a

Appendix B

cannot be required to arbitrate a dispute which it did not

agree to arbitrate. See AT & T Technologies, 475 US. at

648. Additionally, in determining whether the parties agreed

to submit a particular dispute to arbitration, a court may

not rule on the potential merits of the underlying claims.

Id. at 649.

Furthermore, where a labor agreement contains an

arbitration clause, there is a presumption of arbitrability

for the disputes between the parties to the agreement. Id. at

650. Where the arbitration clause is especially broad, such

a presumption is particularly applicable. Id. This

presumption of arbitrability furthers the strong national

policy favoring arbitration of labor disputes. Id. at 650-51;

Steelworkers of America v. Warnor & Gulf Navigation Co.,

363 U.S. at 578-80.

In this case, the Court concludes that the broad

arbitration clause as set forth in Article VI of the Agreement

does cover Plaintiff's claim. As stated above, pursuant to

Article VI, all complaints, disputes or grievances arising

between the parties involving questions of interpretation

or application of any clause or matter covered by the

Agreement or any act or conduct or relation between the

parties, either directly or indirectly are subject to arbitration.

Indeed, Plaintiff's claim is a “dispute” “arising between”

(Cont’d)

disputes. These cases are commonly referenced as the Steelworkers’

Trilogy. The other cases composing the trilogy are United

Steelworkers of America v. American Mfg. Co., 363 U.S. 563

(1960) and United Steelworkers of America v. Enterprise Wheel

and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).

26a

Appendix B

Plaintiff and Local 550 involving “conduct” “between the

parties.” The conduct in dispute is Local 550’s strike and

the resulting damages therefrom. Thus, this Court finds that

the claim falls within the purview of the Agreement’s

arbitration clause. See Associated Brick Mason Contractors

of Greater New York, Inc. v. Harrington, 820 F.2d 31, 35-

36 (2d Cir.1987) (construing similar arbitration clause

broadly to include grievance).

A. Article XXII exception

Nevertheless, Plaintiff argues that although its claim

may fall within the scope of the arbitration clause, the claim

is expressly excluded from arbitration by Article XXII(B)

of the Agreement. It is well settled that where claims are to

be excluded from arbitration, it must be clearly and

unambiguously stated in the agreement. See International

Union of Elec., Radio and Mach. Workers v. General Elec.

Co., 407 F.2d 253, 263 (2d Cir.1968), cert. denied, 395 U.S.

904 (1969). Furthermore, “An order to arbitrate the

particular grievance should not be denied unless it may be

said with positive assurance that the arbitration clause is

not susceptible of an interpretation that covers the asserted

dispute. Doubts should be resolved in favor of coverage.”

Steelworkers of America v. Warrior & Gulf Navigation Co.,

363 U.S. at 582-83. Moreover, in the absence of an express

provision excluding a dispute from arbitration under an

agreement “only the most forceful evidence of a purpose to

exclude the claim from arbitration can prevail.” Id. at 585.

As a general matter, Article XXII deals with changes

in distribution policies and the actions the parties may take

27a

Appendix B

if disputes arise regarding the changes. Under Article

XXII(B), where the parties are unable to agree on “different

commission payments or other methods of compensation

or delivery methods” which become desirable due to

changes in the retail food store industry, the dispute is not

subject to arbitration. This Court interprets Article XXII(B)

as creating a narrow exception to the otherwise broad

arbitration provisions of the Agreement.

Here, Plaintiff's claim is not the type of dispute

contemplated in Article XXII(B). First and foremost,

Plaintiff's claim is not directly related to a change in

distribution policies. Plaintiff did not bring this action based

on a dispute regarding a change in “commission payments

or other methods of compensation or delivery methods”

which it wished to implement. Instead, Plaintiff filed this

action seeking damages resulting from Local 550’s strike.

Second, Plaintiff does not make a claim under Article XXII.

Plaintiff's claim is a Section 303 claim for damages.

Although the claim is related to Article XXII, it is attenuated

from a dispute under Article XXII. Thus, since Plaintiff's

claim does not fall within the narrow scope of Article

XXII(B), the exception set forth therein is inapplicable to

the present action.

Plaintiff contends that its claim falls under the exception

to arbitration because it follows from Local 550’s strike.

According to Plaintiff, since Local 550’s strike was called

pursuant to Article XXII, Plaintiff's claim for damages

resulting from the strike concern Local 550’s Article XXII

conduct. As a result, Plaintiff argues that the strike and all

aspects of the strike including its damage claim necessarily

28a

Appendix B

fall within the distribution policy disputes excluded from

arbitration under Article XXII(B). The Court disagrees with

this contention.

Plaintiff asks this Court to read the Article XXII(B)

exception broadly where the language of the Agreement

does not so dictate. While Local 550’s right to strike under

Article XXII is expressly exempted from arbitration,‘

nowhere in Article XXII does this Court find a clear and

unambiguous exemption for Section 303 claims or more

generally for any claims resulting from strikes called under

that article. The parties demonstrated in the arbitration

provisions of Article VI that when they intended a clause

to have a broad scope the contract language so indicated.

No such expansive and broad language was used in Article

XXII(B). Since Plaintiff’s claim is not clearly and

unambiguously excluded from the arbitration provisions of

the Agreement, this Court declines to interpret the Article

XXII(B) exception to include Plaintiff's claim.

B. Arbitration of Statutory Claims

The fact that Plaintiff's claim is a statutory claim does

not lead this Court to a different result. In Mitsubishi Motors

Corp. v. Soler Chrysler-Plymouth, Inc., the Supreme Court

stated that there was no general presumption against the

arbitration of statutory claims. 473 U.S. 614, 625, 105 S.Ct.

4. This Court makes no finding as to whether Local 550’s

strike was properly called pursuant to Article XXII(C). See

AT & T Technologies, 475 U.S. at 649. Nonetheless, that issue

has no bearing on the determination of the issue presently before

this Court.

29a

Appendix B

3346, 87 L.Ed.2d 444 (1985). “By agreeing to arbitrate a

statutory claim, a party does not forgo the substantive nghts

afforded by the statute; it only submits to their resolution

in an arbitral, rather than a judicial, forum.” Id. at 628.

However, the Supreme Court added that all controversies

implicating statutory rights are not necessarily suitable for

arbitration. Id. at 627.

Thus, when determining the arbitrability of a statutory

claim, in addition to determining whether the claim falls

within the scope of the agreement, the court must decide

whether Congress intended the statutory claim to be non-

arbitrable. See Genesco, Inc. v. T. Kakiuchi & Co., 815

F.2d 840, 844 (2d Cir.1987). In order for a statutory claim

to override the strong federal policy favoring arbitration,

the party opposing arbitration has the burden of showing

through the statute’s text or legislative history that Congress

intended to preclude a waiver of judicial remedies for the

statutory claim at issue. See Shearson American Express,

Inc. v. McMahon, 482 U.S. 220, 227, 107 S.Ct. 2332, 96

L.Ed.2d 185 (1987). Congress’ intent to remove a particular

claim from arbitration may also be deduced “from an

inherent conflict between arbitration and the statute’s

underlying purposes.” Id.

Plaintiff has not met its burden of demonstrating that

Congress intended claims pursuant to Section 303 of the

LMRA to be non-arbitrable. There is no evidence before

this Court indicating a congressional intent to preclude these

claims from arbitration. Furthermore, this Court’s review

of the legislative history of Section 303 did not reveal any

evidence of an intent to prevent the arbitration of these

30a

Appendix B

claims, particularly where the scope of the arbitration clause

covers the claims. Moreover, there is no indication that the

judicial remedy provided under Section 303 was meant to

be exclusive. Therefore, the Court cannot rule that Congress

intended Section 303 claims to be non-arbitrable. See

Farmland Dairies. Inc. v. Milk Drivers & Dairy Employees

Union Local 680, 956 F.Supp. 1190, 1202 (D.N.J.1997)

(holding that Section 303 claims are arbitrable). The Court

also does not find an inherent conflict between arbitration

and the underlying purposes of Section 303 of the LMRA.

In support of its argument to the contrary, Plaintiff cites

the Second Circuit’s decision in Old Dutch Farms, Inc. v.

Milk Drivers and Dairy Employees Local Union No. 584,

359 F.2d 598 (2d Cir.), cert. denied, 385 U.S. 832, 87 S.Ct.

71, 17 L.Ed.2d 67 (1966). In Old Dutch Farms, the court

found that an employer’s Section 303 claim was not

precluded by the arbitration clause of the parties’ collective

bargaining agreement.* 359 F.2d 598. The court reasoned

that the claim bore “no meaningful connection with the

terms, conditions or subject matter” of the agreement. Id.

at 601. Thus, since nothing in the arbitration clause involved

in that case committed disputes which were “unrelated to

the interpretation of particular provisions of the collective

agreement or to the subject matter of the agreement” to

5. The arbitration clause provided that “any and all disputes

and controversies arising under or in connection with the terms

and provisions of [the] agreement, or in connection with or relating

to the application or interpretation of any of the terms or provisions

[thereof], or in respect to anything not [therein], expressly provided

but germane to the subject matter of [the] agreement . . . shall be

submitted for arbitration to an arbitrator. . . .” Id. at 600.

3la

Appendix B

arbitration, the court held that the employer’s Section 303

claim was not arbitrable. Id.

The court articulated other reasons for declining to

subject the employer’s Section 303 claim to arbitration in

Old Dutch Farms. While acknowledging the strong federal

policy favoring arbitration of labor disputes in cases under

Section 301(a) of the LMRA, the court distinguished Section

301 claims from Section 303 claims. Section 301((a)

authorizes lawsuits for the violation of collective bargaining

agreements. Such suits require an arbitrator to interpret and

apply the terms of the collective bargaining agreements.

According to the court, “[t]he interpretation and application

of the terms of a collective bargaining agreement is a

function that traditionally has been considered to be within

the peculiar province of labor arbitrators.” Id. at 602. Thus,

when parties insert a broad arbitration clause in their

collective bargaining agreement it is reasonable to presume

that the parties intended all disputes which require

performance of that function to be decided in arbitration

absent the express exclusion of a particular claim. Id.

However, the court reasoned that Section 303 claims

concern matters which have traditionally been determined

by courts and to which the expertise of labor arbitrators

may not extend. Id. Therefore, the same reasoning does not

apply with equal force. Id. The court found no special reason

to presume that parties to a collective bargaining agreement

desire to submit Section 303 claims to arbitration.® Id. at

6. This lead the court to conclude that “absent a clear, explicit

statement in the collective bargaining contract directing an

(Cont’d)

32a

Appendix B

603. The court added that the suit before it did not raise

“any question of contract interpretation which can be

characterized as particularly suited for arbitration.” Id.

Instead, the validity of the employer’s claim, a tort claim

for damages, involved issues which were particularly suited

for adjudication by a court. Id. at 604.

Nevertheless, Old Dutch Farms is distinguishable from

the present case. First and foremost, the arbitration clause

in the Agreement is broader than the arbitration clause

analyzed in Old Dutch Farms. In this case, the Court has

concluded that Plaintiff's Section 303 claim is embraced

by the broad arbitration clause of the Agreement. On the

other hand, as discussed more fully above, the court in Old

Dutch Farms found that the arbitration provision of the

parties’ collective bargaining agreement did not include the

employer’s Section 303 claim. The court determined that

the statutory claim was wholly independent of the collective

bargaining agreement. Although the arbitration provision

in Old Dutch Farms was broad, it was narrower than the

(Cont'd)

arbitrator to hear and determine the validity of tort damage claims

... it must be assumed that the employer did not intend to forgo

his rights under Section 303 and that the parties did not intend to

withdraw such disputes from judicial scrutiny.” Id. at 603.

However, that statement contradicts longstanding Supreme Court

precedent which states that exceptions to the arbitration clauses

must be clearly carved out of the agreement and any doubts

regarding the scope of clause should be resolved in favor of

coverage. See Steelworkers of America v. Warrior & Gulf

Navigation Co., 363 U.S. at 582-83; AT & T Technologies, 475

U.S. at 650; Associated Brick Mason Contractors, 820 F.2d at 35.

33a

Appendix B

arbitration clause at issue in this cause. Therefore, the Old

Dutch Farms decision is not dispositive here.’

Furthermore, in light of the decisions rendered by the

Supreme Court and the Second Circuit since the Old Dutch

Farms decision, this Court is persuaded that Section 303

claims are in fact arbitrable. In Mitsubishi Motors Corp.,

the Supreme Court expressed. “[W]e are well past the time

when judicial suspicion of the desirability of arbitration and

of the competence of arbitral tribunals inhibited arbitration

as an alternative means of dispute resolution.” 473 U.S. at

626-27. The Supreme Court has put to rest “the old judicial

hostility to arbitration.” Rodriguez De Quijas v. Shearson

American Express, Inc., 490 U.S. 477, 480, 109 S.Ct. 1917,

104 L.Ed.2d 526 (1989).

As a result, the Supreme Court has found in a number

of cases that certain statutory claims, previously thought to

be non-arbitrable, could in fact be arbitrated. See Gilmer v.

Interstate Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647,

114 L.Ed.2d 26 (1991) (finding that claim under the Age

Discrimination in Employment Act was subject to

arbitration); Rodriguez De Quijas, 490 U.S. 477, 109 S.Ct.

1917, 104 L.Ed.2d 526 (holding that securities fraud claims

arising under Section 12(2) of the Securities Act of 1933

are arbitrable); McMahon, 482 U.S. 220, 107 S.Ct. 2332,

96 L.Ed.2d 185 (ruling that claim under Section 10(b) of

7. Additionally, as discussed more fully, infra, recent

precedent from both the Supreme Court and the Second Circuit

casts doubt on the continued vitality of the reasoning underpinning

the Old Dutch Farms decision.

34a

Appendix B

the Securities Exchange Act of 1934 and civil RICO claim

were arbitrable); Mitsubishi Motors Corp., 473 U.S. 614,

105 S.Ct. 3346, 87 L.Ed.2d 444 (finding that antitrust

dispute arising under the Sherman Act may be subject to

arbitration). These cases illuminate the Supreme Court’s

gradual trend toward acceptance of arbitration as a

permissible forum for a wide variety of statutory claims

where the contracts between the parties indicate that the

parties have so agreed.

Indeed, Second Circuit case law reveals a similar trend

of acceptance of arbitration. See Collins & Aikman Products

Co. v. Building Systems, Inc., 58 F.3d 16 (2d Cir.1995)

(upholding district court’s decision compelling claim for

wrongful termination to arbitration and stating that other

tort claims were arbitrable); Bird v. Shearson Lehman/

American Express, Inc., 926 F.2d 116 (2d Cir.) (finding

ERISA claims to be arbitrable), cert. denied, 501 U.S. 1251,

111 S.Ct. 2891, 115 L.Ed.2d 1056 (1991); Associated Brick

Mason Contractors, 820 F.2d 31 (holding disputes between

union and employer arbitrable); Genesco, 815 F.2d 840

(finding RICO claim, claim under Robinson-Patman Price

Discrimination Act, fraudulent inducement claim, unfair

competition claim and unjust enrichment claim subject to

arbitration). See also McNulty v. Prudential-Bache Sec.,

Inc., 871 F.Supp. 567 (E.D.N.Y.1994) (determining claim

pursuant to Jury Systems Improvement Act was subject to

arbitration). In these decisions, the Second Circuit has both

acknowledged the Supreme Court’s liberal policy favoring

arbitration and followed its precedent with regard to the

arbitrability of statutory claims. In addition, the Second

Circuit has recognized that federal policy requires the court

35a

Appendix B

to construe arbitration clauses as broadly as possible. See

David L. Threlkeld & Co. v. Metallgesellschaft Ltd., 923

F.2d 245, 250 (2d Cir.), cert. dismissed, 501 U.S. 1267,

112 S.Ct. 17, 115 L.Ed.2d 1094 (1991) (citation omitted).

Moreover, since Old Dutch Farms, the Second Circuit

has reconsidered its distinction regarding the suitability for

arbitration of contract claims versus tort claims. As

mentioned above, in Old Dutch Farms, the Second Circuit

expressed the view that contractual disputes were

particularly suited for arbitration while claims based in tort

were particularly suited for judicial resolution and not

arbitration. 359 F.2d at 603. Thus, the Section 303 claim, a

tort claim, was not arbitrable. However, subsequent

decisions by the Second Circuit demonstrate that the court

has found that tort claims are arbitrable. See Collins, 58

F.3d 16; Genesco, 815 F.2d 840. In Collins, the court stated,

“The mere fact that this is a tort claim, rather than one for

breach of the [cJontracts, does not make the claim any less

arbitrable.” 58 F.3d at 23. Therefore, the skepticism

expressed in Old Dutch Farms concerning the arbitrator’s

ability to handle tort claims no longer exists.

Due to the greater acceptance of arbitration for a range

of claims, particularly tort claims, the Second Circuit's

reasoning behind finding the Section 303 claim to be non-

arbitrable in Old Dutch Farms (other than the fact that the

claim did not fall within the scope of the arbitration clause)

has been eroded. Thus, the distinctions between Section 301

and Section 303 claims, as articulated in Old Dutch Farms

are no longer viable. The Court finds no reason to presume,

as the court presumed in Old Dutch Farms, that a Section

Appendi:s B

303 claim is not intended by parties to fall ender the

coverage of a broad arbitration provision of « collective

bargaining agreement. Furthermore, the Court 1s convinced

that an arbitrator is capable of asscesing and resolving «

claim brought under Section 303.

Allin all, considering the breadth of precedent holding

that statutory claims are arbitrable coupled with the strong

federal policy favoring arbitration of labor disputes, thus

Court finds no reason to conclude that clanms pursuant to

Section 303 of the LMRA are non-arbutrable. As the court

stated in Farmland Dairies, “[I} is difficult to perceive why

claims arising under (Section) 303 of the LMRA should be

any less amenable to adjudication im an arbutral forum than

claims arising under (Section) 301” of clams arising ender

any other statute. 956 F Supp. at 1202. Accordingly. thes

Court concludes that Plaintiffs Section 303 claim

arbitrable.

Plaintiff has failed to provide any evedence that leads

this Court to a contrary result. The other cases cited by

Plaintiff in support of :ts contention that Secbon §0) clasms

are not arbitrable are inapposite Furthermore Plaenfls

Ill. No Genuine lesues of Material Fact

Finally, Plaintiff argues thet summary jedgmeeet «

inappropriate in this case because maternal wees of fact

exist as to the correct interpretation of Article XXII

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38a

Appendix B

CONCLUSION

Based on the foregoing, this Court holds that Plaintiff's

claim is subject to arbitration under the broad arbitration

clause of the Agreement. Plaintiff's claim is not exempted

from arbitration by the exception set forth in Article

XXII(B) of the Agreement. This Court also finds that

Congress did not intend for Section 303 claims to be non-

arbitrable. Thus, Plaintiff's claim should have been brought

as an arbitration.

Furthermore, the Court finds that no genuine material

issues of fact exist precluding an award of summary

judgment in this case. Accordingly, Defendants’ motion for

summary judgment is granted. The Complaint is hereby

dismissed.

SO ORDERED.

39a

APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

DENYING PETITION FOR REHEARING DATED

AND FILED MARCH 18, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES DISTRICT COURT

40 FOLEY SQUARE

NEW YORK 10007

CAROLYN CLARK CAMPBELL

CLERK

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Courthouse,

Foley Square, in the City of New York, on the 18th day of

March one thousand nine hundred and ninety-nine.

Present:

Hon. Wilfred Feinberg

Hon. Ellsworth VanGraafeiland

Hon. Pierre N. Leval

Circuit Judges

40a

Appendix C

Docket No. 98-7194

Interstate Brands

Plaintiff-Appellant,

Bakery Drivers

Defendant- Appellee.

A petition for panel rehearing having been filed herein

by Interstate Brands Corporation

Upon consideration thereof, it is

Ordered that said petition be and it hereby is DENIED.

FOR THE COURT

CAROLYN CLARK CAMPBELL,

Clerk

By: s/ Beth J. Meador

Beth J. Meador

Administrative Attorney

4la

APPENDIX D — RELEVANT STATUTES

29 U.S.C. § 158

§ 158. Unfair labor practices.

* * .

(b) Unfair labor practices by labor organization.

It shall be an unfair labor practice for a labor

organization or its agents —

(4)(i) to engage in, or to induce or encourage

any individual employed by any person engaged

in commerce or in an industry affecting

commerce to engage in, a strike or a refusal in

the course of his employment to use,

manufacture, process, transport, or otherwise

handle or work on any goods, articles, materials,

or commodities or to perform any services; or

(ii) to threaten, coerce, or restrain any person

engaged in commerce or in an industry affecting

commerce, where in either case an object thereof

is —

(A) forcing or requiring any

employer or self-employed person

to join any labor or employer

organization or to enter into any

agreement which is prohibited by

subsection (e) of this section;

42a

Appendix D

(B) forcing or requiring any person

to cease using, selling, handling,

transporting, or otherwise dealing in

the products of any other producer,

processor, or manufacturer, or to cease

doing business with any other person,

or forcing or requiring any other

employer to recognize or bargain

with a labor organization as the

representative of his employees unless

such labor organization has been

certified as the representative of such

employees under the provisions of

section 159 of this title: Provided, That

nothing contained in this clause (B)

shall be construed to make unlawful,

where not otherwise unlawful, any

primary strike or primary picketing;

employer to recognize or bargain with

a particular labor organization as the

representative of his employees if

another labor organization has been

certified as the representative of such

employees under the provisions of

section 159 of this title;

(D) forcing or requiring any

employer to assign particular work to

employees in a particular labor

organization or in a particular trade,

43a

Appendix D

craft, or class rather than to employees

in another labor organization or in

another trade, craft, or class, unless

such employer is failing to conform

to an order or certification of the

Board determining the bargaining

representative for employees

performing such work:

Provided, That nothing contained

in this subsection shall be construed to

make unlawful a refusal by any person

to enter upon the premises of any

employer (other than his own

employer), if the employees of such

employer are engaged in a strike

ratified or approved by a representative

of such employees whom such

employer is required to recognize

under this subchapter: Provided

further, That for purposes of this

paragraph (4) only, nothing contained

in such paragraph shall be construed

to prohibit publicity, other than

picketing, for the purpose of truthfully

advising the public, including

consumers and members of a labor

organization, that product or products

are produced by an employer with

whom the labor organization has a

primary dispute and are distributed by

another employer, as long as such

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publicity does not have an effect of

inducing any individual employed by

any person other than the primary

employer in the course of his

employment to refuse to pick up,

deliver, or transport any goods, or not

to perform any services, at the

establishment of the employer engaged

in such distribution;

(e) Enforceability of contract or agreement to boycott any

other employer; exception

It shall be unfair labor practice for any labor

organization and any employer to enter into any contract or

agreement, express or implied, whereby such employer

ceases or refrains or agrees to cease or refrain from handling,

using, selling, transporting or otherwise dealing in any of

the products of any other employer, or to cease doing

business with any other person, an any contract or agreement

entered into heretofore or hereafter containing such an

agreement shall be to such extent unenforcible and

void: Provided, That nothing in this subsection shall apply

to an agreement between a labor organization and an

employer in the construction industry relating to the

contracting or subcontracting of work to be done at the site

of the construction, alteration, painting, or repair of a

building, structure, or other work: Provided further, That

for the purposes of this subsection and subsection (b)(4)(B)

of this section the terms “any employer”, “any person

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engaged in commerce or an industry affecting commerce”,

and “any person” when used in relation to the terms “any

other producer, processor, or manufacturer”, “any other

employer”, or “any other person” shall not include persons

in the relation of a jobber, manufacturer, contractor, or

subcontractor working on the goods or premises of the

jobber or manufacturer or performing parts of an integrated

process of production in the apparel and clothing

industry: Provided further, That nothing in this subchapter

shall prohibit the enforcement of any agreement which is

within the foregoing exception.

* * »

29 U.S.C. § 173

§ 173. Functions of Service

* = *

(d) Use of conciliation and mediation services as last resort

Final adjustment by a method agreed upon by the parties

is declared to be the desirable method for settlement of

grievance disputes arising over the application or

interpretation of an existing collective-bargaining

agreement. The Service is directed to make its conciliation

and mediation services available in the settlement of such

grievance disputes only as a last resort and in exceptional

cases.

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29 U.S.C. § 187

§ 187. Unlawful activities or conduct; right to sue;

jurisdiction; limitations; damages

(a) It shall be unlawful, for the purpose of this section

only, in an industry or activity affecting commerce, for any

labor organization to engage in any activity or conduct

defined as an unfair labor practice in section 158(b)(4) of

this title.

(b) Whoever shall be injured in his business or property

by reason or' any violation of subsection (a) of this section

may sue therefor in any district court of the United States

subject to the limitations and provisions of section 185 of

this title without respect to the amount in controversy, or

in any other court having jurisdiction of the parties, and

shall recover the damages by him sustained and the cost of

the suit.

29 U.S.C. § 160

§ 160(k). Hearings on jurisdictional strikes

Whenever it is charged that any person has engaged in

an unfair labor practice within the meaning of paragraph

(4)(D) of section 158(b) of this title, the Board is empowered

and directed to hear and determine the dispute out of which

1. So in original. Probably should read “of”.

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such unfair labor practice shall have arisen, unless, within

ten days after notice that such charge has been filed, the

parties to such dispute submit to the Board satisfactory

evidence that they have adjusted, or agreed upon methods

for the voluntary adjustment of, the dispute. Upon

compliance by the parties to the dispute with the decision

of the Board or upon such voluntary adjustment of the

dispute, such charge shall be dismissed.

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.