Laborers' Intern. Union of North America, Local Union No. 309, AFL-CIO v. W.W. Bennett Const. Co., Inc.

• Decision Date: 01 September 1982
• Docket Number: P,No. 81-1180,AFL-CI,81-1180
• Citation: 686 F.2d 1267
• Parties: 111 L.R.R.M. (BNA) 2311, 95 Lab.Cas. P 13,763 LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 309,laintiff-Appellee, v. W. W. BENNETT CONSTRUCTION COMPANY, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1267

686 F.2d 1267

111 L.R.R.M. (BNA) 2311, 95 Lab.Cas. P 13,763

LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 309, AFL-CIO, Plaintiff-Appellee, v. W. W. BENNETT CONSTRUCTION COMPANY, INC., Defendant-Appellant.

No. 81-1180.

United States Court of Appeals Seventh Circuit.

Argued Oct. 28, 1981.

Decided Sept. 1, 1982.

William E. Defenbaugh, Jr., Westervelt, Johnson, Nicoll & Keller, Peoria, Ill., for defendant-appellant.

Jean F. Souders, Grenberg, Souders & Levine, St. Louis, Mo., for plaintiff-appellee.

Before BAUER and WOOD, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Plaintiff-appellee Laborers' International Union of North America, Local 309 (Laborers), brought suit under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, for specific performance of the arbitration clause in its collective bargaining agreement with defendant-appellant W. W. Bennett Construction Co. (Bennett). The district court entered summary judgment for Laborers, and this appeal followed. We affirm.

I

Bennett was the general contractor on a construction project in Rock Island, Illinois, known as the Friendship Manor Project. At that time, Bennett was party to a collective bargaining agreement with Laborers, the union which manned the work site. Bennett subcontracted certain plumbing work at the project to O'Dell Plumbing & Heating Co. (O'Dell). O'Dell had a collective bargaining agreement with Local 25 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (Plumbers).

Laborers claimed that O'Dell's employees, who were represented by Plumbers, were performing certain work that should have been assigned to Laborers. After unsuccessful attempts to obtain the work, Laborers filed this § 301 suit alleging that Bennett had violated a provision of the Laborers-Bennett agreement which prohibited subcontracting out "any bargaining unit work over which (Bennett) has control ... except where the work will be performed by a sub-contractor who is bound by, or is willing to be bound by, the provisions of this agreement...." Laborers sought a court order compelling Bennett to submit to arbitration. The Laborers-Bennett agreement contains a broad arbitration provision which applies to "(a)ny dispute of any type concerning the interpretation or application of this agreement...."

Bennett has no bargaining agreement with Plumbers, and O'Dell has no bargaining agreement with Laborers. The Bennett-O'Dell subcontract provides that the subcontractor agrees to conform to the wage terms and "labor policies" of Bennett, but contains no arbitration clause.

Bennett answered the Laborers' complaint and filed a third-party complaint against O'Dell and Plumbers. The third-party complaint characterized the dispute as jurisdictional between two unions and asserted that therefore O'Dell and Plumbers were necessary parties. Plumbers filed a cross-complaint against Laborers, O'Dell and Bennett, claiming that all parties were bound to resolve jurisdictional disputes in a multipartite arbitration pursuant to the procedures established in the Constitution of the Building and Construction Trades Department of the AFL-CIO.

Laborers moved for summary judgment. In response, Bennett contended that the dispute involves conflicting jurisdictional claims of two unions and that therefore bipartite arbitration would not be "proper." Bennett contended that it risked inconsistent awards and might have to pay twice for the same work.

The district court entered two orders adopting the findings and conclusions of the magistrate. In one order, the court entered summary judgment for Laborers holding that the complaint alleged a violation of the subcontracting clause and that Bennett was bound to arbitrate that issue with Laborers. In a separate order, the court dismissed the third-party and cross-complaints. Bennett appealed the first order, but no timely appeal was taken from the latter order. Plumbers filed a brief as amicus curiae on behalf of Bennett.

II

In the Steelworkers trilogy, United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), the Supreme Court defined the limited role of a court in a § 301 action brought to enforce the arbitration clause of a collective bargaining agreement:

the judicial inquiry under § 301 is strictly confined to the question whether the reluctant party did agree to arbitrate the grievance.... 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.

Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. at 1352-53. The Court further emphasized that "the means chosen by the parties for settlement of their differences under a collective bargaining agreement" must be given "full play." American Manufacturing, 363 U.S. at 566, 80 S.Ct. at 1345.

There is no question that the type of dispute here is subject to arbitration under the Laborer-Bennett collective bargaining agreement. Rather, the single issue presented is whether a district court may enforce a provision of a collective bargaining agreement calling for bipartite arbitration between the signatories where the defendant employer contends that the dispute is jurisdictional between the plaintiff union and a second union and should not be submitted to arbitration unless all parties involved in the dispute participate. For the purpose of this appeal, we assume that the dispute is jurisdictional. ¹

That a union may seek enforcement of a bipartite arbitration agreement over a work assignment dispute was acknowledged by the Supreme Court in Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964). In Carey, the union (IUE) filed a § 301 suit in state court to compel the employer (Westinghouse) to arbitrate a disputed assignment of work to members of a second union. IUE's collective bargaining agreement with Westinghouse contained a grievance procedure for the use of arbitration in case of unresolved disputes involving the "interpretation, application or claimed violation" of the agreement. Westinghouse contended that the controversy actually presented a representation matter, not a jurisdictional dispute, and was thus within the exclusive jurisdiction of the NLRB. Rejecting this argument, the Court stated:

Are we to assume that the regulatory scheme contains a hiatus, allowing no recourse to arbitration over work assignments between two unions but forcing the controversy into the strike stage before a remedy before the Board is available? The Board, as admonished by § 10(k), (29 U.S.C. § 160(k) ) has often given effect to private agreements to settle disputes of this character; and that is in accord with the purpose as stated even by the minority spokesman in Congress-"that the full opportunity is given the parties to reach a voluntary accommodation without governmental intervention if they so desire."

As Judge Fuld, dissenting below, said: "The underlying objective of the national labor laws is to promote collective bargaining agreements and to help give substance to such agreements through the arbitration process."

Grievance arbitration is one method of settling disputes over work assignments; and it is commonly used, we are told. To be sure, only one of the two unions involved in the controversy had moved the state courts to compel arbitration. So unless the other union intervenes, an adjudication of the arbiter might not put an end to the dispute. Yet the arbitration may as a practical matter end the controversy or put into movement forces that will resolve it.

Id. 375 U.S. at 264-65, 84 S.Ct. at 405 (citations omitted and emphasis added). In dissent, Justice Black, joined by Justice Clark, highlighted that holding:

Stripped of obscurantist arguments, this controversy is a plain, garden-variety jurisdictional dispute between two unions. The Court today holds, however, that the National Labor Relations Act not only permits but compels Westinghouse to arbitrate the dispute with only one of the two warring unions. Such an arbitration could not, of course, bring about the "final and binding arbitration of grievance(s) and disputes" that the Court says contributes to the congressional objectives in passing the Labor Act.

Id. at 274, 84 S.Ct. at 410. Justice Harlan, concurring, also recognized that bipartite arbitration "will expose those concerned to the hazard of duplicative proceedings," but characterized the undesirable consequences as "conjectural." Id. at 273, 84 S.Ct. at 409.

The Carey Court did not mention whether tripartite arbitration was available. Thus, at its narrowest reading, Carey indicates that bipartite arbitration is permissible at least where the only alternative is no arbitration of the dispute at all. See 375 U.S. at 273, 84 S.Ct. at 409 (Harlan, J., concurring). The policy favoring finality, of which Justice Black wrote, suggests that preference should be given to methods of arbitration that can bind all parties involved. A broad view of Carey, however, is that the agreed-upon method of arbitration, when invoked by the plaintiff in a § 301 suit, must be given effect regardless of whether other, more dispositive arbitration procedures are available outside of the collective bargaining agreement. See Nashua Typographical Union, Local 365 v. Telegraph Publishing Co., 365 F.Supp. 262 (D.N.H.1973). The Court's observation that bipartite arbitration "may as a practical matter end the controversy or put into movement forces that will resolve...