LOCAL 1316, I. BRO. OF EW v. SUPERIOR C. & A.

• Decision Date: 15 May 1985
• Docket Number: Civ. A. No. C84-309A.
• Citation: 608 F. Supp. 1246
• Parties: LOCAL 1316, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Plaintiff, v. SUPERIOR CONTRACTORS AND ASSOCIATES, INC., Defendant.
• Court: U.S. District Court — Northern District of Georgia

608 F. Supp. 1246

LOCAL 1316, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Plaintiff, v. SUPERIOR CONTRACTORS AND ASSOCIATES, INC., Defendant.

Civ. A. No. C84-309A.

United States District Court, N.D. Georgia, Atlanta Division.

May 15, 1985.

COPYRIGHT MATERIAL OMITTED

James T. Langford, Jacobs and Langford, Atlanta, Ga., for plaintiff.

Ronald L. Mason, Troutman, Sanders, Lockerman & Ashmore, Atlanta, Ga., for defendant.

ORDER

MOYE, Chief Judge.

The above-captioned labor management relations action is before the Court on numerous motions: (1) the plaintiff's motion to dismiss and for summary judgment, (2) the defendant's Superior Contractors and Associates, Inc. (Superior), motion to amend its counterclaim, (3) the plaintiff's motion to amend its complaint, (4) the plaintiff's motion to compel discovery, and (5) Superior's motion to have its trial brief included in the pretrial order. The plaintiff invokes the jurisdiction of this Court pursuant to 29 U.S.C.A. § 185 (West 1978) and principles of pendent jurisdiction.

This action arises out of the Plant Scherer construction project, which Georgia Power Company began more than ten years ago. Representatives for Georgia Power Company and the plaintiff signed an agreement on September 25, 1974, designated the Plant Scherer Project Agreement (Scherer Agreement). The Scherer Agreement was to cover all construction work for the building of a four-unit, coal-fired electric generating plant. Georgia Power Company hired Superior as the general contractor for the project.

The plaintiff refers men to the job site through its hiring hall. This controversy began after Superior hired electricians who were travelers, i.e., members of other locals, or who were not members of any union at a time when the plaintiff was unable to refer sufficient personnel. Once on the job site, the nonunion personnel and travelers were victims of a harrassment campaign, which the plaintiff allegedly orchestrated.

In the first half of 1983, Superior suffered a slowdown in work and conducted a reduction in force. On May 9, 1983, the plaintiff filed a grievance concerning the way Superior conducted the layoff. The basis of the grievance was that Superior would not agree to lay off travelers and nonunion employees before union members. On October 4, 1983, the plaintiff requested arbitration of this grievance; when Superior declined, this lawsuit ensued. The essence of the plaintiff's complaint is that Superior has, by contract, agreed to adopt a different layoff procedure than that utilized. The plaintiff further contends that Superior agreed to arbitrate this sort of dispute. The plaintiff therefore seeks to compel arbitration. This contention is grounded on the Inside Working Agreement Between Local Union No. 1316, International Brotherhood of Electrical Workers (IBEW) and the Georgia Chapter of the National Electrical Contractors Association, Inc. (N.E.C.A. contract), which the plaintiff asserts is incorporated by reference in the collective bargaining agreement between Superior and the plaintiff, i.e., the Scherer Agreement.

Superior has filed a counterclaim, which the plaintiff initially moved to dismiss, alleging various claims under Georgia law. Prior to filing its counterclaim, Superior filed three charges with the National Labor Relations Board (NLRB) alleging that the plaintiff's activities were unfair labor practices within the meaning of section 8 of the National Labor Relations Act (NLRA or Act). Following the counterclaim, a fourth charge was filed. The first and second charges were filed in 1982 and generally allege that the plaintiff engaged in unfair labor practices within the meaning of section 8(b) of the NLRA. The third charge is dated March 12, 1984 and alleges that the plaintiff engaged in unfair labor practices within the meaning of section 8(b)(1)(A) and (2) of the NLRA by, among other things, "filing a lawsuit in Federal Court seeking to compel arbitration. In the arbitration, the Union would seek to have Superior discharge all traveling employees in violation of their rights under the Act." Deposition of Ronald A. Lanier, Exhibit 11. To date, it appears that the NLRB considered only one of the charges valid, and it does not pertain directly to the subject matter of this lawsuit. The Regional Director's letter of April 6, 1984, to Superior included the following language: "The investigation by the NLRB ... disclosed insufficient evidence of unlawful motivation in the filing of the suit by the plaintiff under section 301 of the Act to compel arbitration of its grievance. Rather, there appeared to be arguable merit to the Union's claim that the local agreement provision regarding layoffs was applicable and therefore arbitrable." Deposition of Ronald A. Lanier, Exhibit 12. Upon motion for reconsideration, the Office of Appeals stated in its letter that it would not depart from its earlier decision. Id. Exhibit 16.

For the reasons set forth below, the Court grants the plaintiff's motion for summary judgment ordering arbitration and dismissing Superior's state law claims. Remaining for consideration then, is Superior's claim for violation of section 301 of the Act, stated in its amendment to its counterclaim.

ARBITRABILITY

The plaintiff asks this Court to establish that it has a legal right to arbitrate its grievance concerning the layoff procedure. The Court's function, in suits brought to compel arbitration under section 301 of the Act, is limited to a determination of whether the recalcitrant party agreed to arbitrate the grievance. E.g., United Textile Workers, Local 120 v. Newberry Mills, Inc., 315 F.2d 217, 218 (4th Cir.), cert. denied, 375 U.S. 818, 84 S.Ct. 54, 11 L.Ed.2d 53 (1963). Superior contends that the Court's authority to review the contract entered into between the parties to determine whether a dispute is arbitrable is well established. While this may be the general rule, it is subject to exception:

The weight of authority supports the rule that a court should compel arbitration of the arbitrability issue where the collective bargaining agreement contains a standard arbitration clause, the parties have not clearly excluded the arbitrability issue from arbitration, and deciding the issue would entangle the court in interpretation of substantive provisions of the collective bargaining agreement and thereby involve consideration of the merits of the dispute.

CWA v. Western Electric Co., 751 F.2d 203, 206 (7th Cir.1984).

The collective bargaining agreement at issue between the parties is the Scherer Agreement, which provides for a grievance and arbitration procedure as follows:

ARTICLE IX. Grievance Procedure

Any question arising out of, and during the term of, this Agreement involving its interpretation and application, other than general wage rates, ... shall be handled by the grievance and arbitration procedures as follows:

. . . . .

If the dispute cannot be settled informally within ten (10) days, it shall be referred to an Impartial Arbitrator for settlement .... The impartial arbitrator shall have only jurisdiction and authority to determine the meaning, application of, or compliance with the provisions of this Agreement and shall not have jurisdiction or authority to add or detract from or alter in any way, such provisions.

Plaintiff's complaint, Exhibit 1, at 13.

The plaintiff contends that this dispute requires arbitration because the NECA contract is incorporated by reference in the Scherer Agreement. The plaintiff's argument is meritless because the Scherer Agreement was executed and entered into between the parties on September 25, 1974, whereas the NECA contract was not executed until August 31, 1979. Affidavit of Morgan Bowen, filed December 24, 1984. It is settled that "an instrument may incorporate by reference only the terms of an instrument already in existence." Bricklayers International Union, Local 15 v. Stuart Plastering Co., 512 F.2d 1017, 1029 (5th Cir.1975).

The Scherer Agreement contemplates the existence of supplementary local area agreements, since these are mentioned at various points throughout.¹ The Scherer Agreement allows for subsequent modifications in the following language: "This agreement shall not be amended or supplemented except by mutual consent of parties hereto reduced to writing and duly signed by each." Plaintiff's complaint, Exhibit 1 at 26. A union and an employer may assent to modification of existing collective bargaining agreements, even without an express provision to that effect. See Piggly Wiggly Operators' Warehouse, Inc. v. Piggly Wiggly Operators' Warehouse Independent Truck Drivers Union, Local 1, 611 F.2d 580, 584 (5th Cir.1980). In addition, "it is well settled that a union and employer's adoption of a labor contract is not dependent on the reduction to writing of their intention to be bound.... Instead, what is required is conduct manifesting an intention to abide by the terms of an agreement." NLRB v. Haberman Construction Co., 641 F.2d 351, 355-56 (5th Cir.1981) (citations and footnote omitted). The modification clause in the Scherer Agreement quoted above is not dispositive on the question of whether the parties might have effected a modification by some other means. An oral modification, for example, of a collective bargaining agreement may occur notwithstanding a provision requiring any modification to be in writing. Certified Corp. v. Hawaii Teamsters and Allied Workers, Local 996, 597 F.2d 1269, 1271 (9th Cir.1979) (citing with approval Watson v. International Brotherhood of Teamsters, 399 F.2d 875, 879 (5th Cir.1968)). It is arguable that Superior intended to be bound by the NECA contract. Compare Affidavit of Tom Garner, Exhibit A-A to Superior's brief in response to the plaintiff's motion for summary judgment, filed January 24, 1985, with Affidavit of Morgan Bowen, filed December 24, 1984. This question should be referred to an arbitrator.

Superior further contends that...