Jci Communications v. International Broth.

• Decision Date: 31 March 2003
• Docket Number: No. 02-2220.,02-2220.
• Citation: 324 F.3d 42
• Parties: JCI COMMUNICATIONS, INC., d/b/a Netversant-New England, Plaintiff, Appellant, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 103, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

324 F.3d 42

JCI COMMUNICATIONS, INC., d/b/a Netversant-New England, Plaintiff, Appellant, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 103, Defendant, Appellee.

No. 02-2220.

United States Court of Appeals, First Circuit.

Heard February 3, 2003.

Decided March 31, 2003.

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Andrew C. Pickett, with whom Richard W. Paterniti and Jackson Lewis LLP were on brief, for appellant.

Indira Talwani, with whom Ira Sills and Segal, Roitman & Coleman were on brief, for appellee.

Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, and HOWARD, Circuit Judge.

LYNCH, Circuit Judge.

JCI Communications, Inc., doing business as NetVersant-New England, is a telecommunications company specializing in network infrastructures. It signed collective bargaining agreements at various times with Local 2222 and Local 103, two separate locals of the same international union, the International Brotherhood of Electrical Workers ("International"). JCI found itself in the cross-fire as to which work assignments belonged to which local. After JCI assigned certain work to Local 2222, Local 103 referred a grievance to arbitration in January 2002. Local 103 prevailed at arbitration. JCI filed suit to vacate the arbitral award; Local 103 cross-claimed for confirmation and sought summary judgment. The district court granted summary judgment to Local 103 and JCI appealed. We affirm.

JCI raises several arguments. Its two main attacks on the judgment are (1) a set of arguments going to the role played by a Jurisdictional Agreement (purportedly between Locals 103 and 2222, the International, and JCI) and (2) a claim that the arbitrators were biased. As to the first attack, JCI argues that, despite the arbitral award, it was entitled to a trial, following discovery, on the issue of whether the Jurisdictional Agreement governs the relationship between the parties. It also argues that the arbitrators exceeded the scope of their authority when they considered the validity and effect of the Jurisdictional Agreement, and so the district court erred in not vacating the award under 9 U.S.C. § 10(a)(4) (2000). Second, JCI argues that the industry arbitrators were biased because they worked for JCI's competitors and so the award should have been vacated under 9 U.S.C. § 10(a)(2). A common theme runs through all the arguments: that JCI wishes to present new evidence or argument to the court to undermine the arbitral award. There are very narrow circumstances in which such a maneuver is permissible; those circumstances are absent here.

The arguments relating to the Jurisdictional Agreement fail for a number of reasons. The district court could not independently review the role of the Jurisdictional Agreement because JCI submitted that issue to the arbitral panel and did not reserve the issue or contest the panel's authority. JCI may not, then, attempt to get discovery or retry the issue to the court. The district court properly confined itself to a review of the panel's award and to the record before the arbitrator; it succinctly and correctly found no basis for the claim that the arbitrators exceeded their authority.

As to the bias claim, while a court may, in other circumstances, take independent evidence on bias, the district court was correct to reject this claim. Here, JCI was on notice that the panel would be drawn from members of its own and related industries and, as a result, that some of JCI's competitors could be the employer representatives on the panel. Yet JCI neither inquired about the backgrounds of the arbitrators nor raised the question of possible bias before the arbitral panel. Mere participation by arbitrators from the same industry as a party does not present a facial claim of "evident partiality" under § 10(a)(2). JCI has not preserved any claim of bias.

I.

JCI has hired members of both Local 103 and Local 2222 since at least 1993, when members of both Locals did electrical work at the same project site. JCI entered into a succession of collective bargaining agreements (CBAs) with the Locals between 1993 and 2002, and signed the Jurisdictional Agreement in 1998.

JCI entered into its first CBA with Local 2222 in 1993. That agreement expired and JCI entered into another CBA with Local 2222 that was in force from January 1, 1998 to December 31, 1999.¹ JCI and Local 2222 did not sign another CBA until May 15, 2002, more than three months after the unfavorable arbitral award.

JCI assented in 1998 to a CBA concluded in 1997 between an employers association and Local 103. In March 1998, the business manager of Local 103 wrote to the President of JCI promising to "continue to work with Local 2222 in order to formalize a jurisdictional agreement." On October 1, 1998, JCI and Local 103 executed a Letter of Assent in which JCI recognized the Boston Chapter of the National Electrical Contractors Association ("Boston Chapter") as JCI's collective bargaining representative "for all matters contained in or pertaining to [the] current and any subsequent approved Telecommunications [L]abor [A]greement between the Boston Chapter, N.E.C.A. and Local Union 103, IBEW." (emphasis added). The Letter was to "remain in effect until terminated by the undersigned employer [JCI]" with adequate written notice to the Boston Chapter and Local 103. JCI never provided written notice of termination to Local 103.

The then-current Telecommunications Labor Agreement, signed on September 1, 1997, expired on February 29, 2000 and was replaced by a succeeding Telecommunications Labor Agreement, dated March 1, 2000. Both agreements recognize Local 103 as the exclusive collective bargaining representative of all employees performing a broad range of electrical work. Both agreements also provide that disputes shall be resolved via binding arbitration before a Joint Conference Committee ("Committee") consisting of three union representatives and three employer representatives.² These agreements, like the Letter of Assent, were duly signed by appropriate representatives of the parties.

At the heart of this case is a purported "Jurisdictional Agreement," dated October 2, 1998. The document, which recognizes the existence of "jurisdictional issues" between the Locals "regarding telecommunications projects," was characterized as an agreement between Local 103, Local 2222, and JCI. There are signature lines on the agreement for representatives of Local 103, Local 2222, JCI, and the International. Representatives of Local 103 and Local 2222 never signed the agreement. There are only two signatures: those of Frank Carroll, the International Vice President in charge of the New England region, and a JCI executive. The International Constitution provides that only the International President, or her duly appointed representative, can enter into a binding agreement with a company.

After it signed the Letter of Assent and the Jurisdictional Agreement, JCI assigned work to both Locals. JCI continued assigning work to Local 2222 after its CBA with Local 2222 expired at the end of 1999. JCI says Local 2222 agreed to extend this CBA while the parties negotiated a new one.

A Boston Chapter contractor filed charges against JCI alleging that it had violated the Telecommunications Labor Agreement by giving work reserved for Local 103 members to members of Local 2222. On January 21, 2002, Local 103 referred a grievance to the Committee, under the procedure set forth in the Telecommunications Labor Agreement, asserting that JCI was assigning work covered by that agreement to members of Local 2222.³

The Committee met on February 4, 2002. Per the terms of the Telecommunications Labor Agreement, the Committee consisted of three representatives of Local 103 and three representatives of the Boston Chapter. As JCI alleged to the court, but not to the Committee, the Boston Chapter representatives worked for competitors of JCI that had in the past lost job bids to JCI. Robert Feldman, Executive Vice President of JCI, claims that JCI did not learn that the Boston Chapter arbitrators were employed by competitors until after the start of the hearing. In any event, JCI, represented by different counsel than its appellate counsel, did not object during the arbitral hearing to the Committee's composition. There is also no evidence or claim that JCI inquired, either prior to or during the hearing, as to the employers of the Committee members.

Both parties presented evidence and arguments and responded to questions from the Committee. JCI's basic position was that it had obligations to both Locals, and that the Jurisdictional Agreement covered the dispute. Local 103 argued that the Jurisdictional Agreement had never been executed and was not binding. Local 103 submitted evidence including its correspondence with JCI, the Letter of Assent, a list of JCI employees, and payroll records and correspondence of select JCI employees. Local 103 argued that JCI had hired non-members as technicians, apprentices, and other types of workers to do electrical work covered by the Telecommunications Labor Agreement. In response, JCI submitted only the Jurisdictional Agreement and Letter of Assent. It contended that it had hired only members of Locals 103 and 2222, and that its hiring practices were consistent with the Jurisdictional Agreement. Local 103 addressed the viability of the Jurisdictional Agreement in response to the arguments and evidence presented by JCI.

The Committee found: "[JCI] violated the Collective Bargaining Agreement by assigning bargaining unit work to non-bargaining unit members and by contracting out bargaining unit work." The Committee found that the Jurisdictional Agreement did not govern (1) because it was not signed by the affected Locals; (2) because the president of the International did not sign the Jurisdictional Agreement, as required under the International Constitution to give legal effect to this sort of agreement; and (3) because JCI...