LOCAL 103 v. Indiana Const. Corp.

• Citation: 706 F. Supp. 667
• Decision Date: 14 February 1989
• Docket Number: Civ. No. F 88-164.
• Parties: INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 103, Plaintiff, v. INDIANA CONSTRUCTION CORP., Defendant.
• Court: U.S. District Court — Northern District of Indiana

706 F. Supp. 667

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 103, Plaintiff, v. INDIANA CONSTRUCTION CORP., Defendant.

Civ. No. F 88-164.

United States District Court, N.D. Indiana, Fort Wayne Division.

February 14, 1989.

William R. Groth, Fillenwarth, Dennerline, Groth & Baird, Indianapolis, Ind. and Stephen J. Lerch, Levine & Lerch, Fort Wayne, Ind., for plaintiff.

William T. Hopkins, Jr. and M. Scott Hall, Gallucci, Hopkins & Theisen, P.C., Fort Wayne, Ind., for defendant.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on plaintiff's motion for summary judgment to compel arbitration and defendant's motion to dismiss, or in the alternative, for summary judgment. Both motions have been fully briefed. For the following reasons, plaintiff's motion will be denied and defendant's motion will be granted.

Summary Judgment

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ. P. 56(c). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A scintilla of evidence in support of the non-moving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. 106 S.Ct. at 2512; Valentine v. Joliet Tp. High School Dist. No. 204, 802 F.2d 981, 986 (7th Cir.1986).

Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact. Celotex, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). In ruling on a summary judgment motion the court accepts as true the non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 106 S.Ct. at 2511.

Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 106 S.Ct. at 2512.

Factual Background

The facts presented by the parties are as follows. In April, 1988, the defendant, Indiana Construction Corp. (Indiana Construction), was engaged as the general contractor on the Toys "R" Us store project located at the Glenbrook Commons in Fort Wayne, Indiana. At all times relevant hereto, Indiana Construction was signatory to a collective bargaining agreement with the plaintiff, the International Union of Operating Engineers, Local 103 (Operators Union), and the Laborers International Union, Local 213 (Laborers Union) through the Building Contractors Association of Fort Wayne, Inc.

Indiana Construction's collective bargaining agreement with the Operators Union provides for mandatory arbitration in the standard broad language found in most labor agreements.¹ However, there is an explicit exclusion, "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."

The agreement also expressly provides an alternative dispute resolution procedure for the excluded jurisdictional disputes² and includes a subcontracting clause which limits Indiana Construction's ability to subcontract work covered by the agreement to employees who are being paid in accordance with the agreement.³

Indiana Construction's collective bargaining agreement with the Laborers Union also contains broad provisions for mandatory arbitration with a specific exclusion of jurisdictional disputes,⁴ a similar alternative dispute resolution procedure for jurisdictional disputes,⁵ and a subcontracting clause which in effect is the same as the Operator's.⁶

As the general contractor on the Toys "R" Us project, Indiana Construction subcontracted certain masonry work to L. Byerly Masonry (Byerly). Byerly had no collective bargaining agreement with the Operators Union but was signatory to a collective bargaining agreement with the Laborers Union. The forklift work at the job site was claimed by the Laborers Union as its own and was performed by one of its members. However, in its complaint, the Operators Union claimed that operation of the forklift was covered by its labor agreement with Indiana Construction.

According to Indiana Construction, on April 25, 1988, Michael Wall (Wall), a business agent for the Operators Union, approached Robert Bishop (Bishop) and Timothy Momper (Momper), project supervisor for Indiana Construction, at the Toys "R" Us project site and demanded that Indiana Construction assign members of the Operators Union to the forklift work which was then being performed by Byerly's employees who were members of the Laborers Union. Wall further indicated that pickets would be put up the next day at the job site should the work not be assigned as he directed. Indiana Construction submits the affidavits of Bishop and Momper which assert that such statements were in fact made.

Byerly's owner, who was informed of Wall's demands that same day, had Byerly's legal counsel send a letter to the Operators Union informing it that members of the Laborers Union had historically been assigned to do the forklift work. The letter further threatened legal action should the Operators Union engage in any illegal activities at the project site.

No pickets were placed at the job site on April 26, 1988, and on April 27, 1988, a meeting was held to discuss the dispute. Wall and the Operators Union business manager, Don Smart (Smart), met with James Schellenberger and Jerry Huguenard of Indiana Construction. According to the affidavits of Schellenberger and Huguenard, Smart requested that Indiana Construction assign the forklift work to a member of the Operators Union. Smart also claimed that subcontracting the forklift work to Byerly violated the subcontracting clause of the labor agreement.

The Operators Union, while not contesting the fact that the foregoing confrontations took place, strenuously denies having threatened to place pickets and having requested that the forklift work be assigned to its members. The affidavit of Wall specifically denies ever having threatened to picket the Toys "R" Us job site if Byerly did not put a member of the Operators union on the forklift. The affidavit of Smart not only specifically denies requesting the forklift work for his union members, but also states that he "advised Schellenberger and Huguenard that Local 103 was not asking Indiana Construction to put an operator on the forklift."

In May, 1988, Schellenberger received an undated letter from Smart which demanded that payments be made to the fringe benefit funds of the Operators Union for all hours worked or paid that the forklift had been or was to be operated in the future at the Toys "R" Us project site. Along with the demand, the letter alleged that Indiana Construction had breached the subcontracting clause of the collective bargaining agreement and demanded arbitration of the dispute.

Indiana Construction refused to arbitrate the dispute, claiming that it was a work assignment dispute excluded from the arbitration provision as "invovling territorial or craft jurisdiction." On June 21, 1988, the Operators Union filed suit in this court under 29 U.S.C. § 185 to compel arbitration with Indiana Construction. In its complaint, the Operators Union claims that the grievance does not involve a jurisdictional claim, but rather, is a contractual claim to have the forklift work performed by employees paid according to the labor agreement with Indiana Construction. The Operators Union further claims that its grievance does not seek replacement of the Laborers Union members with Operators Union members on the forklift work. The relief sought by the Operators Union includes an order compelling arbitration of the grievance, judgment for damages of $50,000 caused by the unremedied breach and attorney fees and costs.

Analysis

The sole issue for determination by this court on the cross-motions for summary...