Botica v. Floyd Steel Erectors, Inc.

• Citation: 485 F. Supp. 334
• Decision Date: 31 January 1980
• Docket Number: No. 77 C 3726.,77 C 3726.
• Parties: Joseph J. BOTICA, as Agent for: the Structural Iron Workers Local No. 1 Welfare Fund; the Structural Iron Workers Local No. 1 Pension Trust Fund; the Joint Apprenticeship Training and Journeymen Retraining Fund; the Mid-America Pension Fund; the Associated Steel Erectors Industry Promotion Fund; the Annuity Account; the Structural Iron Workers Local No. 1 and the Wage Savings Fund, Plaintiff, v. FLOYD STEEL ERECTORS, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

485 F. Supp. 334

Joseph J. BOTICA, as Agent for: the Structural Iron Workers Local No. 1 Welfare Fund; the Structural Iron Workers Local No. 1 Pension Trust Fund; the Joint Apprenticeship Training and Journeymen Retraining Fund; the Mid-America Pension Fund; the Associated Steel Erectors Industry Promotion Fund; the Annuity Account; the Structural Iron Workers Local No. 1 and the Wage Savings Fund, Plaintiff, v. FLOYD STEEL ERECTORS, INC., Defendant.

No. 77 C 3726.

United States District Court, N. D. Illinois, E. D.

January 31, 1980.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Charles Orlove and Nancy Berger, Chicago, Ill., for plaintiff.

George W. Moehlenhof, Chicago, Ill., for defendant.

MEMORANDUM OPINION

MAROVITZ, District Judge.

Plaintiff brings this action pursuant to section 301(a) of the National Labor Relations Act, 29 U.S.C. § 185(a). Pending before the Court are plaintiff's motion to confirm an arbitration award and for summary judgment and defendant's motion to vacate the arbitration award.

I Introduction

Plaintiff is the Administrator of the Structural Iron Workers Fund Disbursement Office (Fund Disbursement Office). The Fund Disbursement Office is created pursuant to the terms of successive contracts (the "Local-ASE Agreements") entered into between the Associated Steel Erectors of Chicago, Illinois (ASE) and Local Union Number 1 of the International Association of Bridge, Structural and Ornamental Iron Workers (the "Local"). E. g., Plaintiff's Exhibits IA and IB. Employers who are parties to the Local-ASE Agreement are required to make certain payments to the various employee funds established by that agreement. These payments are to be made to the Fund Disbursement Office.

The Local-ASE Agreement contains a final and binding arbitration clause which is applicable to all disputes arising under that agreement. Plaintiff's Exhibit IA, § 40. The arbitration clause provides that disputes should be resolved, if possible, by a meeting between a representative of the employer and the business agent of the Local. Id., § 40. If the meeting does not produce an agreement, the Local-ASE Agreement provides that either party may refer the matter to a Joint Arbitration Board (Board) consisting of seven persons designated by the Local and seven persons designated by ASE. The Local-ASE Agreement requires the Board to render a decision within five days from the referral to it of the grievance. If the Board is deadlocked or fails to reach a decision within the required time period, the Local-ASE Agreement provides that the Board shall select an arbitrator from a list submitted by the American Arbitration Association. Id.

Defendant Floyd Steel Erectors, Inc. (Floyd) has at all times material to this action been engaged as an employer in the structural iron industry. On March 22, 1972 defendant entered into an agreement (the "International Agreement") with the International Association of Bridge, Structural and Ornamental Steel Workers, AFL-CIO (the "International"). Plaintiff's Exhibit IC. The International Agreement provides, inter alia, that it would continue in effect until three months written notice from either party to the other, id., ¶ 1, that it would cover all work performed by plaintiff in all places that is within the jurisdiction of the International, id., ¶ 2, and that plaintiff recognizes the International as the sole and exclusive bargaining representative for all of plaintiff's employees performing work within the jurisdiction of the International. Id., ¶ 3. Paragraph 6 of the International Agreement reads as follows:

The Employer agrees to abide by the General Working Rules of this Association i. e., the International and to pay the scale of wages, work the schedule of hours and conform to the conditions of employment in force and effect in the locality in which the Employer is performing or is to perform work, provided that such conditions are not in violation of the National Labor Relations Act.

Id., ¶ 6. Finally, paragraph 9 of the International Agreement sets forth procedures for resolving disputes between the parties as to the scale of wages. The International Agreement, however, reflects no agreement as to the resolution of any other types of disputes that may arise. The only document appended to the International Agreement is a referral clause.

On July 29, 1975 defendant entered into an agreement with the Local (the "Compliance Agreement") whereby defendant agreed to be bound by the Local-ASE Agreement then in force and effect and all subsequent renewals and modifications of that agreement. The Compliance Agreement makes specific mention of the various employer funds established by the Local-ASE Agreement.

Plaintiff instituted this action, in his capacity as Administrator for the Fund Disbursement Office,¹ to recover alleged delinquencies in defendant's contributions to the Fund Disbursement Office and liquidated damages² for the period from January 1, 1973 to December 31, 1975. It is undisputed that during this period the applicable Local-ASE Agreements required employers who were parties thereto to contribute to the various employee funds in amounts to be determined by the number of those hours paid to their employees at the hourly rates set by those agreements, provided the employees were performing work within the jurisdiction of the agreements. It is also undisputed that during this period defendant made the requisite contributions for all of those hours paid its employees who were paid ironworker's wages with the exception of those hours paid to those employees of defendant who are the subject of the dispute herein. The alleged delinquencies concern work performed by employees of defendant who, although paid ironworker's wages, did not, defendant argues, perform work which was otherwise within the craft jurisdiction of the Local. Specifically, plaintiff seeks to recover contributions with respect to bonuses paid of one extra hour for each day an employee served as a foreman (pusher bonuses) and with respect to steel fabrication work performed in defendant's shop.

Subsequent to the filing of the instant action, plaintiff sought to invoke the arbitration procedures of the Local-ASE Agreement. There appear in the record two written grievances which were apparently submitted to the Board on behalf of the Local. Plaintiff's Exhibit IE; Defendant's Exhibit 1(c). One grievance is dated October 5, 1978, Plaintiff's Exhibit IE, while the copy of the other grievance before the Court bears no date. Defendant's Exhibit 1(c).

During the summer of 1978, representatives of both parties met to review audits of defendant's payroll records. The parties dispute what transpired during this meeting. Defendant alleges that an offer was made by plaintiff to settle this action if defendant would permit plaintiff to inspect defendant's shop fabrication operation. Floyd Affidavit, ¶¶ 31-39. Defendant states that it accepted this offer and that plaintiff was permitted access to defendant's shop. Id. Plaintiff denies ever making such an offer. Orlove Affidavit, ¶ 3e.

On April 18, 1979, the Board met without reaching a decision. The Board again met on September 6, 1979. Present at the September 6, 1979 meeting were six representatives of the Local and six representatives of the ASE. Apparently, in part because of a dispute between defendant's representative and the Board over the participation of defendant's counsel in the meeting, defendant's representative left the meeting before it was adjourned. However, before defendant's representative left the meeting, he read a prepared statement, contending, inter alia; (1) that the Board had no jurisdiction to hear the grievance submitted on behalf of the Local because defendant was not a member of the ASE; (2) that the grievance relates to time periods when defendant had no contract with the Local; (3) that the dispute underlying the grievance had been settled pursuant to an agreement between plaintiff and defendant; (4) that the grievance was filed untimely; and (5) that the Board's authority to decide the grievance had expired since it had not reached a decision within five days of the date the grievance was submitted to it. Defendant's Exhibit 1(f). On September 14, 1979, defendant received the decision of the Board. The decision read as follows:

The decision of the Joint Arbitration Board is that the interpretation of Working Rules is that any employer paying ironworkers wages shall pay fringe benefits on all hours paid regardless of work performed.

Defendant's Exhibit 1(e). Attached to the decision was the grievance dated October 5, 1978. Id.

II

The Applicable Law

A Jurisdiction

29 U.S.C. § 185(a) confers jurisdiction upon the federal courts to adjudicate controversies arising from labor contracts. 9 U.S.C. § 9 specifically empowers the federal courts to confirm arbitration awards. Accordingly, the Court finds that plaintiff has properly invoked the Court's jurisdiction.

B Arbitration

That there exists a strong federal policy in favor of the resolution of labor disputes by agreed upon procedures is wellsettled. E. g., United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960). Consequently, the power of federal courts to resolve disputes which are arguably subject to an arbitration clause is carefully circumscribed. Generally, such disputes are brought to the judicial forum by way of an action to compel arbitration pursuant to an arbitration clause or by way of an action to affirm or vacate an arbitration award made pursuant to an arbitration clause. In either instance, it is entirely within the court's province to determine whether the dispute is subject to arbitration according to the terms of the applicable bargaining agreement. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (...