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November 21, 2005.


The opinion of the court was delivered by: JAMES WARE, District Judge

Plaintiff Granite Rock Company ("Plaintiff") brings this action against Defendant International Brotherhood of Teamsters, Freight, Construction, General Drivers, Warehousemen and Helpers, Local No. 287 ("Defendant") pursuant to Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), for disputes arising out of alleged contract violations. Plaintiff alleges that there was a ratified collective bargaining agreement between the parties, and that Defendant violated the agreement by engaging in an unlawful strike.

Defendant now moves for partial summary judgment. The purpose of the motion "is to enable the Court to determine in advance of trial whether, as Defendant contends, particular issues raised by the pleadings in this case should be reserved for arbitration pursuant to the collective bargaining agreement, and not heard at trial by the Court." Motion, p. 1 Specifically, Defendant contends that "trial of this case must be limited to the single question of whether the collective bargaining agreement that Plaintiff claims to have been violated was in existence at the time the alleged violation occurred, and that the potential issues as to whether Defendant violated the agreement and the amount of damages, if any to be awarded, must be referred to arbitration if the agreement is found by the Court to have been in existence at the relevant time." Id. Defendant also moves to strike Plaintiff's jury demand

  A hearing on Defendant's motions was set for November 14, 2005. However, this Court finds it appropriate to take the motions under submission without oral argument pursuant to Civil Local Rule 7-1(b). Based on the arguments advanced by counsel in their briefs and on the pleadings, Defendant's motion for partial summary judgment is GRANTED, and Defendant's motion to strike Plaintiff's jury demand is DENIED.


  A. Factual Background

  Plaintiff Granite Rock is a California company engaged in the business of supplying ready mixed concrete for commercial use. Defendant Local 287 is a voluntary, unincorporated association, commonly known as and doing business as a "labor organization" within the meaning of 29 U.S.C. § 185. Defendant represents certain Granite Rock employees at its San Jose facility, and is the collective bargaining representative for employees engaged as drivers at the San Jose facility.

  From March 1, 1999 to April 30, 2004 Plaintiff and Defendant were parties to a collective bargaining agreement. (Amended Complaint, hereinafter "Am. Compl.," ¶ 6.) Preliminary negotiations for a new agreement commenced in March 2004. Negotiations continued throughout April and May without success. In early June 2004, after the agreement's expiration, bargaining unit employees at the San Jose facility went on strike. (Am. Compl. ¶ 8.) Plaintiff alleges that after further negotiations, the parties reached an agreement at 4:00 a.m. on Friday, July 2, 2004 on terms for a new collective bargaining agreement covering the period from May 1, 2004 to April 30, 2008 ("New Agreement"). (Am. Compl. ¶ 8.) In addition, Plaintiff claims that George Netto, Defendant's Business Representative, called to inform Plaintiff that the New Agreement was ratified later that same day by a vote of all the union employees. (Am. Compl. ¶ 10.)

  Defendant denies that the New Agreement was ever ratified. Instead, Defendant asserts that ratification was conditioned on the parties first agreeing on a "Back to Work Agreement." Plaintiff, on the other hand, alleges that the parties agreed to discuss a "Back to Work Agreement" at a later date, and that any such "Back to Work Agreement" would be subject to the grievance procedure set forth in the New Agreement. The New Agreement included a no-strike clause and a compulsory grievance and arbitration procedure for the settlement of "any disputes" arising under the agreement. (Am. Compl. ¶ 11.)

  On July 5, 2004, Defendant allegedly violated the New Agreement by calling union members and instructing them not to return to work. (Am. Compl. ¶ 13.) Plaintiff alleges that Defendant informed Plaintiff that its members would not return to work until Plaintiff executed a "Back to Work Agreement" guaranteeing amnesty for its employees and for employees of Plaintiff's other facilities in three counties covered under separate collective bargaining agreements with different unions. (Am. Compl. ¶ 13.) Plaintiff also alleges that Defendant violated the New Agreement by not participating in the compulsory grievance and arbitration provision set forth in the agreement and by engaging in an unlawful strike. (Am. Compl. ¶¶ 13-14.) The strike has now ended. However, Plaintiff still seeks damages resulting from the alleged violation of the New Agreement.

  B. Procedural Background

  On July 9, 2004, Plaintiff filed the instant complaint against Defendant for damages from the allegedly unlawful strike. Shortly thereafter, Plaintiff amended the complaint to include injunctive relief, and brought a motion for temporary restraining ("TRO") to: (1) Enjoin and restrain Defendant from "[t]hreatening, causing, directing, assisting or participating in any strike, slowdown or other concerted refusal to perform work in violation of the collective bargaining agreement between the parties, or in any other manner interrupting the normal operations of Plaintiff over any dispute, complaint or grievance with Plaintiff concerning the discipline and/or amnesty on striking employees which is resolvable under the grievance and arbitration provisions of the Parties' collective bargaining agreement"; and (2) to "withdraw any outstanding orders or directions to employees of Plaintiff that said employees should engage in a cessation of work because of any dispute over the application or interpretation of the Collective Bargaining Agreement and to advise all employees and prospective employees of Plaintiff represented by Defendant not to engage in any of the acts described above." Plaintiff's Application, p. 2.

  The Court determined that Plaintiff's application for a temporary restraining order could be consolidated with a trial on the merits pursuant to Rule 65, Fed.R.Civ.P., and proceeded to hear the case on its merits with respect to whether the collective bargaining agreement had been ratified. Following the receipt of testimony, the Court found that the New Agreement had not been ratified; dismissed the complaint; and entered judgment.

  Plaintiff next filed a motion for a new trial based upon newly discovered evidence, which the Court granted. Thereafter, Defendant moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), or, in the alternative, for a stay of these proceedings pending arbitration of the dispute. The Court denied Defendant's motion because of the underlying factual dispute regarding the alleged ratification of the New Agreement. See Order Denying Defendant's Motion for Judgment on the Pleadings, Docket Item No. 57.

  Defendant now moves for partial summary judgment under Federal Rule of Civil Procedure 56 to resolve the scope of the arbitration clause contained in the New Agreement. The arbitration provision in the New Agreement states that "[a]ll disputes arising under this agreement shall be resolved in accordance with the [Federal Mediation and Conciliation Service for Mediation if the Union and the Employer are unable to resolve the dispute]." (Decl. of Duane B. Beeson, Ex. B at 18.) Defendant contends that assuming that the Court finds ratification, the New Agreement requires arbitration of the ...

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