International Broth. of Elec. Workers, Local Union No. 969 v. Babcock & Wilcox

• Decision Date: 17 August 1987
• Docket Number: No. 86-1462,86-1462
• Citation: 826 F.2d 962
• Parties: 126 L.R.R.M. (BNA) 2482, 107 Lab.Cas. P 10,130 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 969, Plaintiff-Appellee, v. BABCOCK & WILCOX, d/b/a B & W Construction Company, Inc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 962

826 F.2d 962

126 L.R.R.M. (BNA) 2482, 107 Lab.Cas. P 10,130

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION

NO. 969, Plaintiff-Appellee, v. BABCOCK & WILCOX, d/b/a B & W Construction Company, Inc.,

Defendant-Appellant.

No. 86-1462.

United States Court of Appeals, Tenth Circuit.

Aug. 17, 1987.

Thomas B. Buescher and Ellen M. Kelman, Brauer & Buescher, P.C., Denver, Colo., for plaintiff-appellee.

Walter V. Siebert and M. Edward Taylor, Sherman & Howard, Denver, Colo., and William A. Ziegler, Sullivan & Cromwell, New York City, for defendant-appellant.

Before McKAY and BALDOCK, Circuit Judges, and BROWN ^*, District Judge.

BALDOCK, Circuit Judge.

Pursuant to 10th Cir.R. 34.1.2, plaintiff-appellee International Brotherhood of Electrical Workers, Local Union No. 969 (Local 969) filed a motion to submit the case on the briefs and to be excused from attendance at oral argument. Defendant-appellant Babcock & Wilcox (B & W) opposed the motion. After examining the briefs and the appellate record, this three-judge panel unanimously determined that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.8(c). Local 969's motion was therefore granted and the case was submitted without oral argument.

This is an appeal of summary judgment in favor of Local 969 in its action to confirm an arbitration award. B & W contends that the district court erred in enforcing the award because: 1) B & W never received notice of the union-employer grievance committee hearing and 2) that committee had no jurisdiction to decide the matter in dispute. The district court concluded that B & W's failure to file a timely action to vacate the arbitration award precluded it from raising any affirmative defenses which could have been raised in a suit for vacation of the award. We affirm.

The parties' contractual relationship involves four separate agreements. Their dispute centers on conflicting provisions in those agreements pertaining to grievance resolution procedures and reimbursement of employee travel expenses. Since 1975, B & W has been a signatory to an International Agreement with the International Brotherhood of Electrical Workers. The International Agreement provides that B & W agrees to comply with the terms and conditions of the applicable local collective bargaining agreement where work is performed by B & W. The agreement further provides that disputes concerning the local union agreement shall be referred to the applicable Labor-Management Committee.

A Local Agreement, signed by Local 969 and an employers' association and effective from March 1, 1985 to February 28, 1986, contains a grievance procedure calling for referral of disputes to the Labor-Management Committee. The Local Agreement also contains a provision addressing the reimbursement of employee travel expenses. B & W claims it has never been a party to that agreement.

In 1981, the parties signed a Project Agreement for Construction of the Colorado-Ute Electric Association, Inc., which sets forth a grievance procedure culminating, if necessary, in arbitration. The remaining agreement is a Memorandum of Understanding executed by Local 969 and B & W in February of 1985. Article XIV of the Memorandum of Understanding provides for travel expenses, the amount of which is lower than that provided in the Local Agreement. Article VI sets forth a grievance procedure which also culminates in arbitration.

On March 22, 1985, Local 969 sent a letter to B & W alleging that B & W had made misrepresentations in connection with negotiation of the Memorandum of Understanding. The letter demanded that the electricians of Local 969 be paid travel pay at a higher rate than that provided in the Memorandum of Understanding and that all further electrical work be performed under the International Agreement. Additionally, the letter indicated that if the travel pay deficiency was not paid within one week, charges would be filed against B & W in accordance with the International Agreement grievance procedure.

Local 969 alleges that a Joint Conference Committee, which is the equivalent of the local Labor-Management Committee, met on April 8, 1985 to consider its grievance. B & W denies ever receiving notice of that hearing. In mid-April of 1985 B & W did, however, receive a letter dated April 9, 1985 from the Joint Conference Committee stating that the committee had rescinded the Memorandum of Understanding, that B & W had been found to be in violation of the travel pay provision of the Local Agreement and that travel pay owing from March 1, 1985 should be paid.

On April 17, 1985, B & W responded in writing that the submission of the grievance to the Joint Conference Committee was improper. B & W claimed that the Memorandum of Understanding contained its own grievance procedure and thus the question of whether the Memorandum of Understanding continued to be in force should have been raised and determined pursuant to that procedure. B & W did not comply with the Joint Conference Committee award, nor did it file an action to vacate the arbitration award.

On September 12, 1985, Local 969 brought this action under Sec. 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. Sec. 185, to confirm the arbitration award. B & W asserted that the Joint Conference Committee letter of April 9, 1985 was not an arbitration award. B & W further asserted that even if the letter did constitute an award, it could not be enforced because B & W had not been given notice of the Joint Conference Committee hearing and because the Committee lacked jurisdiction to decide the parties' dispute. In granting Local 969's motion for summary judgment, the district court first held that the Joint Conference Committee award was enforceable as an arbitration award. ¹ The court then held, without considering the merits of B & W's contentions, that B & W was barred from raising its affirmative defenses because it had failed to move to vacate the award within the time period for an action to vacate an arbitration award.

The sole issue to be decided on appeal is whether the affirmative defenses raised by B & W were time-barred, a question not previously decided by this circuit. We hold that the passing of the time limitation period for an action to vacate an arbitration award completely bars, in a subsequent confirmation proceeding, the raising of such statutory defenses.

Under Fed.R.Civ.P. 56(c), summary judgment is appropriate only when there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Carey v. United States Postal Service, 812 F.2d 621, 623 (10th Cir.1987). Unless the running or tolling of a statute of limitations requires the adjudication of factual issues, the applicability of the statute is properly decided in a motion for summary judgment. Securities and Exch. Comm. v. Seaboard Corp., 677 F.2d 1289, 1293 (9th Cir.1982); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Sec. 2734 (2d ed. 1983). Summary judgment is appropriate here because there is no genuine issue as to any material fact regarding the dates which are relevant in evaluating whether the limitations period for an action to vacate the arbitration award had run.

The timeliness of an action to vacate an arbitration award brought under Sec. 301 of the LMRA is "determined, as a matter of federal law, by reference to the appropriate state statute of limitations." Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05, 86 S.Ct. 1107, 1112-13, 16 L.Ed.2d 192 (1966); see also Plumbers' Pension Fund, Local 130 v. Domas Mechanical Contractors, Inc., 778 F.2d 1266, 1268-70 (7th Cir.1985). The statute of limitations to be applied here is found in the Uniform Arbitration Act, as adopted in Colorado. Colo.Rev.Stat. Sec. 13-22-201 to Sec. 13-22-223 (Supp.1986). Upon application of a party to an arbitration award, the court shall confirm the award, unless within the time limits specified in the Act grounds are urged for vacating, modifying or correcting the award. Colo.Rev.Stat. Sec. 13-22-213. ² An application to vacate an award "shall be made within ninety days after delivery of a copy of the award to the applicant." Id. Sec. 13-22-214(2).³

The district court correctly determined that the defenses asserted by B & W could have been raised as grounds to vacate the award under Colo.Rev.Stat. Sec. 13-22-214(1)(a). ⁴ Specifically, B & W could have raised the alleged lack of jurisdiction as a ground to vacate under Sec. 13-22-214(1)(a)(III). Similarly, its contention that it never received notice of the hearing could have been raised as a ground to vacate under Sec. 13-22-214(1)(a)(IV), which addresses the procedural requirements set out in Sec. 13-22-207. ⁵ B & W's asserted defenses challenged the validity of the arbitration award, and thus in effect represented a belated attempt to vacate the award. Even assuming that B & W did not receive advance notice of the Joint Conference Committee hearing, it is uncontroverted that it did receive written notification of the committee's action and did not thereafter move to vacate the arbitration award...