International Union of Operating Engineers, Local Union 965-965A-965B-965C-965RA v. Associated General Contractors of Illinois

• Citation: 845 F.2d 704
• Decision Date: 26 April 1988
• Docket Number: 87-1038,Nos. 87-1037,87-1117 and 87-1118,A-965B-965C-965RA,s. 87-1037
• Parties: 128 L.R.R.M. (BNA) 2308, 109 Lab.Cas. P 10,546 INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION 965-965, an unincorporated organization, Plaintiff-Appellee, v. ASSOCIATED GENERAL CONTRACTORS OF ILLINOIS and Calhoun County Contracting Corporation, and Halverson Construction Company, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 704

845 F.2d 704

128 L.R.R.M. (BNA) 2308, 109 Lab.Cas. P 10,546

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION 965-965A-965B-965C-965RA, an unincorporated organization, Plaintiff-Appellee, v. ASSOCIATED GENERAL CONTRACTORS OF ILLINOIS and Calhoun County Contracting Corporation, and Halverson Construction Company, Defendants-Appellants.

Nos. 87-1037, 87-1038, 87-1117 and 87-1118.

United States Court of Appeals Seventh Circuit.

Argued Oct. 27, 1987.

Decided April 26, 1988.

Patricia C. Benassi, Benassi & Benassi, P.C., Peoria, Ill., for defendants-appellants.

Mark W. Weisman, Suelthaus & Kaplan, P.C., St. Louis, Mo., for plaintiff-appellee.

Before CUMMINGS, WOOD, and COFFEY, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

This is a consolidated appeal of two cases that present the same issue: whether summary judgment compelling the defendants to submit the plaintiff's grievances to arbitration was appropriate. The defendants, Associated General Contractors of Illinois (AGC), Calhoun County Contracting Corp. (Calhoun), and Halverson Construction Co., Inc. (Halverson), argue that summary judgment was inappropriate because a genuine issue of material fact existed as to whether the defendants had recognized the plaintiff Union as the exclusive bargaining representative at the sites where the grievances allegedly arose. They also assert that the underlying representational dispute respecting the scope of the bargaining unit deprived the district court of subject matter jurisdiction. The plaintiff disputes these arguments and has cross-appealed from the district court's order denying attorneys' fees and costs. We affirm.

I. FACTUAL BACKGROUND

Because this is an appeal of a grant of summary judgment, we view the facts and reasonable inferences therefrom in the light most favorable to the nonmovant defendants. Ristoff v. United States, 839 F.2d 1242, 1243 (7th Cir.1988).

The defendant AGC is an association of employers engaged in the building and construction industry in Illinois that represents certain member employers in collective bargaining with various labor organizations. The plaintiff Union is an unincorporated association that represents its member employees for purposes of collective bargaining with respect to wages, hours, and other terms and conditions of employment.

Defendant Calhoun is a member of AGC, which represents it in collective bargaining. Calhoun is a Delaware corporation engaged in the building and construction industry performing work on roads, bridges, and sewers. This work takes place at various job sites in Illinois. Calhoun uses heavy construction equipment, the repair and maintenance of which is sometimes performed at or near the construction site. The repair and maintenance work also may occur at Calhoun's permanent yard/shop adjacent to Calhoun's offices in Springfield. The Union, AGC, and Calhoun were parties to a collective bargaining agreement which was in effect from May 1, 1983 to April 30, 1985.

On June 25, 1984, Calhoun hired a mechanic helper to work in its permanent yard/shop. Calhoun did not obtain this employee through the referral procedures set forth in the agreement between the parties, and the company has not applied the terms of the agreement to this employee, who has worked exclusively at Calhoun's permanent yard/shop. On October 26, 1984, the Union submitted a grievance to AGC regarding Calhoun's failure to follow the Union referral procedure in hiring this employee.

Defendant Halverson is an Illinois corporation that is also engaged in the building and construction industry in Illinois, performing work at various construction sites in the state. It is a member of AGC; AGC represents the company in collective bargaining. Halverson uses heavy construction equipment which is sometimes repaired and maintained at or near the construction site. Prior to July, 1984, Halverson maintained a permanent yard/shop at a one-acre site in Springfield. At this permanent yard/shop, the company stored various pieces of heavy construction equipment. Halverson sometimes performed minor repair and maintenance on the equipment at the permanent yard/shop, and sometimes used the equipment to load and unload construction material. The Union, AGC, and Halverson were parties to a collective bargaining agreement which was in effect from May 1, 1983 to April 30, 1985.

In July, 1984, Halverson relocated its permanent yard/shop to a ten-acre site. On July 21, 1984, a Halverson supervisor operated a piece of heavy construction equipment, known as a cherry picker, at the old permanent facility. The supervisor used the cherry picker to load steel beams for movement to and storage at the new permanent facility. The Union filed a grievance regarding the company's use of a supervisor rather than a Union employee to perform this work. The company, which asserts that it does not recognize the Union at its permanent facilities, refused to arbitrate this grievance.

On April 11, 1985, the plaintiff Union filed two suits, one against AGC and Calhoun and the other against AGC and Halverson, to compel arbitration of the Union's grievances pursuant to the collective bargaining agreement.

II. DISCUSSION

A. Duty to Arbitrate

The district court granted plaintiff's motion for summary judgment, ordering the defendants to submit the Union's grievances to arbitration. The defendants argue that summary judgment was inappropriate because there was disagreement between the parties as to whether the Union is the bargaining representative of employees in the defendants' permanent facilities and, therefore, whether there was any agreement to arbitrate disputes of this type. The evidence of this disagreement, defendants assert, was sufficient to require submission to a jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

As both plaintiff and defendants recognize, a party cannot be required to arbitrate any dispute that it has not contractually agreed to submit to arbitration. AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960). The question of arbitrability is a question of law for the judge to decide. AT & T, 475 U.S. at 649, 106 S.Ct. at 1419; Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. at 1352-53. In deciding the arbitrability of the grievance, the court is not to look to the merits of the underlying claims. AT & T, 475 U.S. at 649, 106 S.Ct. at 1419. The presence of an arbitration clause in the collective bargaining agreement gives rise to a presumption of arbitrability "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 1353, quoted in AT & T, 475 U.S. at 650, 106 S.Ct. at 1419.

The collective bargaining agreement provided in Article VI, the section of the agreement dealing with arbitration, that "[t]here shall be no strike or lockout on account of any difference of opinion or dispute which may arise between the Employer and the Union relative to the interpretation of this agreement." Differences of opinions or disputes, other than jurisdictional disputes, are instead to be submitted to arbitration. The agreement by its terms applies to "[a]ll public or private construction, demolition, alteration, repair, maintenance, excavation, production and other work performed by the employers," and the craft jurisdiction of the Union is very broad. ¹ The defendants have not overcome the presumption of arbitrability of the Union's grievances.

There is no language in the contract that limits its terms to on-site construction work, as the defendants suggest. They point out the last line of Article I applying the craft jurisdiction to "highway/heavy and utility construction work." See supra note 1. Although plaintiffs seem to suggest that this language demonstrates that the agreement does not cover permanent facilities, the phrase does not inevitably lead to that conclusion. Viewed in context, Article I describes the kinds of work covered by the agreement, not where such work takes place.

Defendants also note that Article II-A, dealing with applicant referral, requires the employer seeking referral to inform the Union of "(c) the location of the project [and] (d) the nature of the construction project." From this the defendants induce that the Article "expressly applies only to construction sites." The Article, however, concerns only information that would "enable the Union to make proper referral of applicants." The Union would need to know the location and nature of the project in order to refer appropriate applicants. The fact that the word "construction" appears before the word "project" reflects the fact that much, if not most, of the work performed by operating engineers is in connection with a construction project. But a request that the employer supply information on the particulars of the construction project does not imply that the employer may not request referrals for repair work in its shop.

Article III provides exceptions to the agreement for "permanent sand and gravel pits, permanent rock quarries, permanent ready mixed concrete plants and permanent material yards." This list of exceptions does not include permanent repair or storage sites. Defendants have not suggested that Article III has been interpreted to include such sites, but instead rely only on the language of the agreement. None of these excerpts demonstrate that the parties' dispute falls outside the scope of the bargaining agreement.

In support of its contention that its grievances are arbitrable, the plaintiff submitted affidavits from Lyman Ginder, former business manager for the Union,...