International Union of Operating Engineers, Local Union 103 v. Indiana Const. Corp.

• Decision Date: 04 January 1994
• Docket Number: No. 92-1356,92-1356
• Citation: 13 F.3d 253
• Parties: 145 L.R.R.M. (BNA) 2073, 127 Lab.Cas. P 10,963 INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION 103, Plaintiff-Appellee, v. INDIANA CONSTRUCTION CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 253

13 F.3d 253

145 L.R.R.M. (BNA) 2073, 127 Lab.Cas. P 10,963

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION 103 Plaintiff-Appellee, v. INDIANA CONSTRUCTION CORPORATION, Defendant-Appellant.

No. 92-1356.

United States Court of Appeals Seventh Circuit.

Argued Nov. 6, 1992.

Decided Jan. 4, 1994.

William R. Groth (argued), Fillenwarth, Dennerline, Groth & Towe, Indianapolis, IN, Stephen J. Lerch, Fort Wayne, IN, for plaintiff-appellee.

M. Scott Hall (argued), William T. Hopkins, Gallucci, Hopkins & Theisen, Fort Wayne, IN, for defendant-appellant.

Before POSNER, Chief Judge, FLAUM, Circuit Judge, and WILLIAMS, District Judge. ^*

ANN CLAIRE WILLIAMS, District Judge.

This appeal arises out of a dispute over whether International Union of Operating Engineers, Local 103's ("Operators"), grievance against Indiana Construction Corp. ("Indiana Construction") must be arbitrated. Plaintiff-appellee Operators filed suit in federal district court to compel arbitration of its alleged subcontracting grievance. The district court granted summary judgment in Indiana Construction's favor, finding that the grievance was a non-arbitrable jurisdictional dispute. Operators appealed, and this court reversed, remanding the case to the district court for further proceedings. After a bench trial, the district court determined that Operators' grievance was arbitrable. Defendant-appellant Indiana Construction appeals that determination. We affirm.

I. Background

Indiana Construction was signatory to a collective bargaining agreement with both Operators and Laborers International Union, Local 213 ("Laborers"). Most important here is Operators' collective bargaining agreement, the Building Construction Agreement ("Agreement"), which contains a provision requiring arbitration of any dispute except those involving territorial or craft jurisdiction:

Should any dispute arise between the Union, or any employee covered by this Agreement, and the Employer concerning the interpretation or application of the terms of this contract the same shall be submitted to a joint arbitration board.... Provided, however, that the arbitration provisions of this contract shall not apply in any way to any dispute arising between the Union, or Unions, involving territorial or craft jurisdiction. ¹

(Plaintiff's Exhibit ("PX") 1, Art. 6, Subpart 3). ² Also at issue is the Agreement's subcontracting provision which states in relevant part:

The Employer agrees not to sub-contract or sublet any on-site work covered by this Agreement to any person, firm or corporation which does not pay at least the minimum rates of pay and abides by all apprenticeship standards as set forth in this Agreement together with fringes established herein.

(PX 1, Art. 15, Subpart 3).

In April 1988, Indiana Construction subcontracted masonry work on a Toys "R" Us construction project in Fort Wayne, Indiana to L. Byerly Masonry ("Byerly"). Byerly, who had only signed a collective bargaining agreement with Laborers, had hired Laborers to do certain forklift work on the project. Subsequently, a dispute arose over whether the forklift work had to be performed by a member of Operators. Operators eventually filed a written grievance on May 5, 1988, charging that Indiana Construction violated the Agreement by subcontracting to a firm that did not pay the requisite rates and fringe benefits set forth in the Agreement. Operators requested arbitration, and Indiana Construction refused on the grounds that the grievance was a non-arbitrable jurisdictional claim for work between competing unions.

On June 21, 1988, Operators filed suit in district court to compel arbitration under 29 U.S.C. Sec. 185, alleging that the grievance was a contractual claim. Both parties filed motions for summary judgment. On February 14, 1989, the district court granted Indiana Construction's motion after concluding that, "by seeking financial compensation based on the work performed by the Laborers Union, the Operators Union is claiming that same work as its own, thus creating a jurisdictional dispute." International Union of Operating Eng'rs, Local 103 v. Indiana Constr. Corp., ("Indiana Constr. I") 706 F.Supp. 667, 673 (N.D.Ind.1989) (AA 35-41).

Operators appealed, and this court reversed and remanded the case to the district court on August 16, 1990. International Union of Operating Eng'rs, Local 103 v. Indiana Constr. Corp., ("Indiana Constr. II") 910 F.2d 450, 455 (7th Cir.1990) (AA 42-47). In so doing, we emphasized that:

The district court could not conclude that the dispute was jurisdictional--and therefore not subject to arbitration under the terms of the collective bargaining agreement--solely because the union demanded a contribution to its pension fund as compensation for the alleged breach. Such a remedy also would have been permissible for a breach of the subcontracting clause. Accordingly, the case must return to the district court for further proceedings on the sole issue before the court--whether the dispute is subject to arbitration under the terms of the collective bargaining agreement. In resolving this issue, the district court will apply, as it acknowledged in its opinion and we confirm today, the principles enunciated by the Supreme Court in AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 648-51, 106 S.Ct. 1415, 1418-19, 89 L.Ed.2d 648 (1986).

Id. (AA 47).

Upon remand, the district judge conducted a bench trial to resolve disputed factual issues such as whether Operators "claimed the work as its own." After weighing the disputed testimony, the court found inter alia, that Operators tried to get Byerly to hire its members for the forklift work, asked Byerly to sign its collective bargaining agreement, and threatened to picket and shut the project down if Operators was not hired. ("Short Appendix to Brief of Appellants ("SA") 4-6). Notwithstanding these facts, the lower court concluded that the grievance was non-jurisdictional and subject to arbitration reasoning that:

The presence of a jurisdictional dispute at the subcontracting level would not preclude Indiana Construction from complying with the sub-contractor clause of their agreement with the Operators Union. Thus, the Operators Union would have a legitimate grievance against Indiana Construction under the sub-contractor clause of the Building Construction Agreement even if it was also engaged in a jurisdictional dispute with another union.

(SA 10).

Indiana Construction appeals. Specifically, appellant contends that Operators failed to carry its burden of proving the substantive arbitrability of its grievance, and that the district court erred in finding that the grievance should be arbitrated.

II. Standard of Review

In reviewing a judgment following a bench trial, this court must accept the trial court's factual findings unless they are clearly erroneous. Bennett v. Local Union No. 66, 958 F.2d 1429, 1433 (7th Cir.1992). In the instant case, Indiana Construction does not dispute any of the district court's factual findings. Rather, appellant takes issue with the district court's application of those facts to the language in the Agreement and the relevant law. Therefore, despite Operators' protestations to the contrary, we review the district court's legal conclusions under the de novo review standard. Id. at 1434.

III. Discussion

"[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Steel Workers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). However, it is for the court to determine whether a collective bargaining agreement creates a duty to arbitrate. AT & T, 475 U.S. at 649, 106 S.Ct. at 1418. In making this determination, the court must focus on the collective bargaining agreement in question and examine all relevant evidence. AT & T, 475 U.S. at 651-52, 106 S.Ct. at 1419-20. Moreover, in AT & T, the Supreme Court reiterated that

where the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that "[a]n order to arbitrate the particular grievance should not be denied 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.

AT & T, 475 U.S. at 650, 106 S.Ct. at 1419 (quoting Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. at 1353). Consequently, this court has held that when a collective bargaining agreement contains an arbitration clause, "there is a presumption of arbitrability that may only be overcome by 'forceful evidence' of an intent to exclude the claim." Oil, Chemical and Atomic Workers Int'l Union v. Amoco Oil Co., 883 F.2d 581, 585 (7th Cir.1989) (quoting Warrior & Gulf, 363 U.S. at 585, 80 S.Ct. at 1354). With these principles in mind, we address appellant's arguments.

A. The Law of the Case

As an initial matter, this court addresses appellant's reliance on the "law of the case" doctrine. In particular, Indiana Construction emphasizes our prior statement that "[i]f the union is not claiming the work as its own, then this is not a jurisdictional dispute." Indiana Constr. II, 910 F.2d at 453 (AA 45). Based upon this language, appellant suggests that the dispute is jurisdictional (and therefore, non-arbitrable) if Operators is claiming the work as its own. Moreover, appellant concludes that the resolution of this single issue and interpretation of the Agreement is "the law of the case." Brief of Appellant at 12. We disagree.

"The gist of the [law of the case] doctrine is that once an appellate court either expressly or by necessary implication decides an issue, the decision will be binding upon all subsequent proceedings in the same case." Key v. Sullivan, 925 F.2d 1056, 1060 (7th Cir.1991). However, the doctrine "most often applies to issues already fully decided...