Calumet River Fleeting, Inc. v. Int'l Union of Operating Eng'rs, Local 150, AFL–CIO

• Decision Date: 31 May 2016
• Docket Number: No. 15-3174,15-3174
• Parties: Calumet River Fleeting, Inc., Plaintiff–Appellee, v. International Union of Operating Engineers, Local 150, AFL–CIO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

824 F.3d 645

Calumet River Fleeting, Inc., Plaintiff–Appellee

v.International Union of Operating Engineers, Local 150, AFL–CIO, Defendant–Appellant.

No. 15-3174

United States Court of Appeals, Seventh Circuit.

Argued February 23, 2016

Decided May 31, 2016

Michael A. Warner, Jr., Attorney, Franczek Radelet P.C, Chicago, IL, for Plaintiff–Appellee.

Dale D. Pierson, Elizabeth A. LaRose, Attorneys, IUOE Local 150 Legal Department, Countryside, IL, for Defendant–Appellant.

Before WOOD, Chief Judge, and SYKES and HAMILTON, Circuit Judges.

HAMILTON

, Circuit Judge.

In July 2013, plaintiff Calumet River Fleeting, Inc. fired a boat operator, and defendant International Union of Operating Engineers, Local 150, AFL–CIO (“the Union”) filed a grievance with Calumet over the termination. Calumet refused to participate in the arbitration, saying that although it was once a party to a collective bargaining agreement with the Union, Calumet had terminated its participation in that agreement before the dispute arose over the firing. When the Union took steps to start the arbitration, Calumet filed this suit to stop it. The Union counterclaimed for an order compelling arbitration. The district court granted summary judgment to Calumet, holding that it was no longer a party to any agreement with the Union that might have required arbitration.

The Union has appealed, arguing that an earlier arbitration award in an unrelated proceeding had found that Calumet was an alter ego of Selvick Marine Construction, LLC, a company that was a party to the collective bargaining agreement. By virtue of the alter ego relationship, the Union contends that Calumet had to submit to arbitration.

We affirm. We first find that we have appellate jurisdiction over this matter despite the lack of a separate judgment. On the merits, the arbitration award on which the Union relies does not show that Calumet was still a party to the collective bargaining agreement. Calumet is entitled to judgment as a matter of law.

I. Factual Background and Procedural History

We review de novo a district court's decision on cross-motions for summary judgment. Exelon Generation Co. v. Local 15, International Brotherhood of Electrical Workers , 540 F.3d 640, 643 (7th Cir. 2008)

. The general standards for summary judgment do not change: with “cross summary judgment motions, we construe all facts and inferences therefrom ‘in favor of the party against whom the motion under consideration is made.’ ” In re United Air Lines, Inc. , 453 F.3d 463, 468 (7th Cir. 2006)

, quoting Kort v. Diversified Collection Services, Inc. , 394 F.3d 530, 536 (7th Cir. 2005). Because we need consider only Calumet's motion for summary judgment, we resolve all factual disputes and draw all reasonable inferences in the Union's favor.

A. Background of the Companies and Their Relationship with the Union

Plaintiff Calumet River Fleeting, Inc. is a Wisconsin corporation engaged in marine towing. It was formed by John Selvick in 1999. The International Union of Operating Engineers, Local 150, AFL–CIO is a labor organization that represents heavy equipment operators, mechanics, and other employees in parts of Illinois, Indiana, and Iowa.

In 2006, Calumet and the Union signed a memorandum of agreement binding Calumet to the terms of the Great Lakes Floating Agreement. The Floating Agreement is a collective bargaining agreement that covers marine construction. The memorandum of agreement contained an “evergreen clause” requiring the employer to adhere to the terms of each successive edition of the agreement unless and until the agreement was properly terminated.

In September 2008, Calumet terminated its participation in the Floating Agreement. This meant that contractors who were themselves signatories to the Floating Agreement could no longer hire Calumet without violating the agreement's subcontracting provision. Less than two years later, in April 2010, John Selvick organized a new company called Selvick Marine Construction, LLC. Selvick Marine signed a memorandum of agreement with the Union on June 2, 2010 adopting the terms of the Floating Agreement. Mr. Selvick also signed a towing addendum on Selvick Marine's behalf. The towing addendum covers non-construction towing work. Like the Floating Agreement, it contains an evergreen clause.

B. The 2012 Arbitration

In September 2011, the Union filed three grievances against Selvick Marine, initiating the three-step grievance procedure prescribed by the Floating Agreement. The Union alleged that Selvick Marine had violated the Floating Agreement when it performed certain work without following the agreement's procedures. It was actually Calumet, not Selvick Marine, that had performed the work in question, but the Union sought to hold Selvick Marine accountable. Under the Union's theory, the two companies were alter egos, so Calumet's actions—and its failure to comply with the Floating Agreement—were attributable to Selvick Marine, which was a party to the Floating Agreement.

The parties could not agree on the grievances, so the Union submitted them to arbitration. Selvick Marine appeared to participate. Calumet did not, although it had been served with a subpoena duces tecum that identified the date and time of the arbitration. In between hearing dates, the Union filed suit to enforce the subpoena. In that suit, Calumet argued that it was not Selvick Marine's alter ego, but it never made the same argument in front of the arbitrator.

On July 24, 2012, the arbitrator issued his decision and award. He found that John Selvick had formed Selvick Marine to recapture work that Calumet had lost when it terminated its agreement with the Union. The arbitrator concluded that Selvick Marine and Calumet were alter ego companies, pointing out: Mr. Selvick supplied capital to Selvick Marine; employees of both companies reported to the same location for work; Selvick Marine used only Calumet boats in its work; and the companies shared stationery, employees, forms, logs, worksheets, fueling vendors, and insurance policies. Although Selvick Marine maintained it was a separate company, the arbitrator disagreed. He expressly declined to pass judgment on the legality of the arrangement between Calumet and Selvick Marine, but he found that when Calumet performed work using union employees in the Union's territory, that work was subject to the Floating Agreement by virtue of Selvick Marine's signatory status. He then sustained the Union's grievances.

Turning to the question of a remedy, the arbitrator found that the work that had violated the Floating Agreement could not be undone, nor could Selvick Marine retroactively comply with the relevant provisions of the agreement. He ordered back pay and benefits to make whole the Union workers who had not been compensated in conformity with the Floating Agreement. He did not order any prospective relief, however, noting that the 2009–2011 Floating Agreement had expired on December 31, 2011 and that it was unclear whether any continuing relationship existed between the Union, Selvick Marine, and Calumet since the agreement's expiration. Thus, he concluded, he was “without authority to issue such a prospective remedy.”

Neither Selvick Marine nor Calumet ever sought to vacate or modify the arbitration award. Selvick Marine simply complied with it. Sometime in 2011 or 2012, though, Selvick Marine dissolved and liquidated operations.

C. The Present Dispute

In July 2013, Calumet fired one of its boat operators, Angelo Zuccolo. The Union grieved the firing and eventually demanded arbitration. Calumet refused to participate in the arbitration on the ground that it was not a party to any collective bargaining agreement with the Union. The Union notified the American Arbitration Association of the dispute and requested an arbitration panel. Calumet then filed this suit seeking both a declaration that it was not a party to any collective bargaining agreements with the Union and an injunction preventing the Union from continuing with the arbitration. The Union counterclaimed, seeking, among other things, to enforce the July 2012 arbitration decision finding that Selvick Marine and Calumet were alter egos and an order compelling Calumet to submit to arbitration pursuant to the Floating Agreement. The Union agreed to postpone the arbitration pending the outcome of this suit.

Both parties moved for summary judgment. The district court rejected the Union's argument that the 90-day statute of limitations to challenge an arbitration award applied to Calumet's claims. The court also rejected the Union's attempt to rely on the arbitrator's alter ego finding to show that Calumet had been a party through Selvick Marine. The Union had offered no basis apart from the arbitrator's conclusion to support an alter ego finding, so the court concluded that it had no basis to enforce against Calumet in this action the arbitrator's finding that Calumet and Selvick Marine were alter egos. Finally, the district court rejected the Union's argument that the Norris–LaGuardia Act, 29 U.S.C. § 101 et seq.,

prohibited injunctive relief in the case.

For these reasons, the court granted Calumet's motion, denied the Union's motion, and dismissed the Union's counterclaims. The court did not, however, enter a separate judgment pursuant to Federal Rule of Civil Procedure 58

. On September 30, 2015, the Union filed a notice of appeal.

II. Appellate Jurisdiction

Before addressing the merits of the appeal, we must be sure we have appellate jurisdiction. The Union contends it has appealed a final decision under 28 U.S.C. § 1291

. Generally, an order is final for appeal purposes under § 1291 “if it ends the litigation and leaves nothing to be decided in the district court.” United States v. Ettrick Wood Products, Inc. , 916 F.2d 1211, 1216 (7th Cir. 1990).

The question of appellate jurisdiction arose because the district court issued a memorandum opinion on the motions but did not enter a separate judgment under ...