IBEW LOCAL 124 v. Alpha Elec. Co.

• Court: U.S. District Court — Western District of Missouri
• Writing for the Court: Robert J. Janowitz, Shook, Hardy & Bacon, Kansas City, Mo., for defendant
• Citation: IBEW LOCAL 124 v. Alpha Elec. Co., 759 F.Supp. 1416 (W.D. Mo. 1991)
• Decision Date: 24 January 1991
• Docket Number: No. 88-1071-CV-W-9.,88-1071-CV-W-9.
• Parties: INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 124, Plaintiff, v. ALPHA ELECTRIC COMPANY, INC., Defendant.

759 F. Supp. 1416

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 124, Plaintiff, v. ALPHA ELECTRIC COMPANY, INC., Defendant.

No. 88-1071-CV-W-9.

United States District Court, W.D. Missouri, W.D.

January 24, 1991.

COPYRIGHT MATERIAL OMITTED

James G. Walsh, Jr., Jolley, Walsh, Hager & Gordon, Kansas City, Mo., for plaintiff.

Robert J. Janowitz, Shook, Hardy & Bacon, Kansas City, Mo., for defendant.

ORDER DENYING DEFENDANTS' MOTION TO DISMISS AND GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

BARTLETT, District Judge.

Background

On November 2, 1988, the International Brotherhood of Electrical Workers, Local Union No. 124, (Local 124) filed an action in this court pursuant to § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185 to enforce an arbitration award against Alpha Electric Company, Inc. (Alpha) dated July 18, 1988. Alpha is an electrical contractor and a signatory to the collective bargaining agreement between the Kansas City Division, Kansas City Chapter, National Electrical Contractors Association (NECA) and Local 124. Local 124 is a labor organization that represents electrical workers for purposes of collective bargaining. The arbitration award states that Alpha violated the subcontracting clause by subletting electrical work to Alpine Electric Company (Alpine), an electrical contractor not signatory to the collective bargaining agreement.

On December 22, 1988, Alpha filed its Answer which contained ten affirmative defenses and a four-count Counterclaim.

On March 13, 1989, Local 124 moved for summary judgment and Rule 11 sanctions. On March 18, 1989, discovery was stayed. On April 21, 1989, Alpha opposed Local 124's summary judgment and sanctions motions and moved to dismiss plaintiff's Complaint due to lack of subject matter jurisdiction.

On May 16, 1989, plaintiff moved "that the court issue an order directing the Small Business Administration to provide plaintiff with copies of loan applications and other documents relating to loans to Alpha Electric Company, Inc. and Alpine Electric Company, Inc...." Defendants opposed this motion on May 25, 1989.

On June 24, 1989, Alpha filed its "First Amended Answer and Counterclaims" in which it adds the affirmative defense that "plaintiff procured the `award' by means of fraud, corruption, or other undue means." Defendants's June 14, 1989, First Amended Answer and Counterclaims at 28.

Undisputed Facts

Local 124 and Alpha were parties to a collective bargaining agreement effective September 1, 1986, through August 31, 1989, covering Alpha's journeymen and apprentice electrician employees. Complaint at ¶ 5. This agreement is commonly referred to by the parties as the Inside Agreement.

The Inside Agreement between Local 124 and Alpha contains a grievance procedure which provides as follows:

Grievances — Disputes

Section 1.04. During the term of this Agreement, there shall be no stoppage of work either by strike or lockout because of any proposed changes in this Agreement or dispute over matters relating to this Agreement. All such matters must be handled as stated herein.

(a) There shall be a Labor-Management Committee of three representing the Union and three representing the Employer. It shall meet regularly once a month. However, it shall also meet within 48 hours when notice is given by either party. It shall select its own Chairman and Secretary.

(b) All grievances or questions in dispute shall be adjusted by the duly authorized representatives of each of the parties to this Agreement. In the event that these two are unable to adjust any matter within 48 hours, they shall refer the same to the Labor-Management Committee.

(c) All matters coming before the Labor-Management Committee shall be decided by majority vote. Four members of the Committee, two from each of the parties hereto, shall be a quorum for the transaction of business, but each party shall have the right to cast the full vote of its membership and it shall be counted as though all were present and voting.

(d) Should the Labor-Management Committee fail to agree or to adjust any matter, such may be submitted jointly or unilaterally by the parties to this Agreement to the Council on Industrial Relations for the Electrical Contracting Industry for adjudication. The Council's decision shall be final and binding on both parties hereto.

Section 2.13 of the Inside Agreement provides in relevant part as follows:

(a) The subletting, assigning, or transfer by an individual Employer of any work in connection with electrical work to any person, firm or corporation not recognizing the IBEW or one of its Local Unions as the collective bargaining representative of his employees on any electrical work in the jurisdiction of this or any other Local Union to be performed at the site of the construction, alteration, painting or repair of a building, structure or other work, will be deemed a material breach of this Agreement.

(b) All charges of violations of Section 2.13(a) shall be considered as a dispute and shall be processed in accordance with the provisions of this Agreement covering the procedure for the handling of grievances and the final and binding resolution of disputes.

In two grievances dated April 29, 1988, and June 20, 1988, (each grievance concerned two jobs), Local 124 alleged that Alpha had subcontracted bargaining unit work to Alpine in violation of Section 2.13(a) of the Inside Agreement. Plaintiff's March 13, 1989, Motion for Summary Judgment, Affidavit of Philip A. Nichols, Exhibits A and B.

The Labor-Management Committee conducted a hearing regarding the two grievances on June 28, 1988. Local 124 was represented at the Labor-Management Committee hearing on June 28, 1988, by its business agent, Philip A. Nichols. Alpha was represented at the June 28, 1988, hearing by its president, Lyn Shelton.

The Committee issued a unanimous award dated July 18, 1988. The Committee's award provides in relevant part:

After a thorough review of all of the facts, evidence, testimony and circumstances surrounding these grievances presented, the Labor-Management Committee issued the following unanimous award:

Both grievances are sustained in their entirety. Alpha Electric Co., Inc. is in violation of Article II, Section 2.13(a) of the current inside labor agreement and is ordered to immediately cease these violations.

Alpha Electric Co., Inc. is further ordered to make any bargaining unit employee who lost work as a result of these violations whole for all economic losses suffered as a result of these violations, and to make all fringe payments required by the inside labor agreement for all hours of such lost work.

The Labor-Management Committee retains jurisdiction herein for purposes of resolving issues which may arise concerning the remedy.

In a letter dated July 20, 1988, to Robert Haines at NECA, Lyn Shelton stated in part: "In regard to the notice we received, which was dated July 18, 1988, we do not agree with the outcome of the decision and, therefore, wish to file an appeal."

By letter dated August 5, 1988, Robert W. Haines, Secretary of the Labor-Management Committee, responded: "Labor-Management Committee reviewed your letter dated July 20, 1988 and received in the NECA office on August 1, 1988, requesting an appeal of a recent Labor-Management Decision. All Labor-Management decisions are final and binding, therefore your appeal is denied."

Alpha has not complied with the award of the Labor-Management Committee.

Alpha obtained a $15,000 welfare fund bond, No. 1098188, from Continental Insurance Company (Continental) dated June 11, 1987. The bond guaranteed payment under the terms of the Inside Agreement of contributions to Local 124's Annunity Trust Fund.

The welfare fund bond contained a clause stating that "it is understood and agreed that should a breach of this obligation be made by the Principal hereof, notice shall be given the Surety of such breach by the Obligee not less than fifteen (15) days after such breach."

Local 124 sent a letter to Continental dated October 26, 1988, advising Continental that Alpha had breached its collective bargaining agreement with Local 124.

Continental cancelled Alpha's welfare fund bond on October 27, 1988. Id., Exhibit C. This cancellation was rescinded on December 1, 1988.

Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction

If "a grievance determination is not `final and binding under the collective bargaining agreement,' the parties may not maintain an action under § 301 to confirm or vacate that determination." General Drivers, Local 89 v. Riss and Co., 372 U.S. 517, 83 S.Ct. 789, 791, 9 L.Ed.2d 918 (1963). An award is not "final" if it decides only liability and leaves unresolved the question of remedy. Millmen Local 550 v. Wells Exterior Trim, 828 F.2d 1373, 1375-77 (9th Cir.1987).

Defendant argues that the award of the Labor-Management Committee is not final because it specifies that the "Labor-Management Committee retains jurisdiction herein for purposes of resolving issues which may arise concerning the remedy."

The two cases that defendant cites to support its Motion to Dismiss involve awards where the arbitrators expressly refused to specify any remedy. Wells Exterior Trim, 828 F.2d at 1374-75 (the arbitrator's decision provided that "the question of remedy in its entirety is remanded to the Parties, the Arbitrator retaining jurisdiction in the event the Parties cannot agree upon such a remedy."); Public Service Electric and Gas Co. v. System Council U-2, 703 F.2d 68, 69-70 (3d Cir.1983) (after arbitration panel determined that liability existed, the panel and parties agreed that no remedy would be prescribed until the parties had an opportunity to submit additional argument to the panel).

Here, the Labor-Management Committee's "award" specified a make-whole remedy. All details of the make-whole remedy do not need to be provided in order for an arbitration award to...