LOCAL U. NO. 1423, GLAZIERS, ETC. v. PPG Industries, Inc.

• Decision Date: 12 June 1974
• Docket Number: Civ. No. 72 F 15.
• Citation: 378 F. Supp. 991
• Parties: LOCAL UNION NO. 1423, GLAZIERS, AFFILIATE OF the PAINTERS, DECORATORS, AND PAPERHANGERS OF AMERICA, AFL-CIO, Plaintiff, v. P. P. G. INDUSTRIES, INC., Defendant.
• Court: U.S. District Court — Northern District of Indiana

378 F. Supp. 991

LOCAL UNION NO. 1423, GLAZIERS, AFFILIATE OF the PAINTERS, DECORATORS, AND PAPERHANGERS OF AMERICA, AFL-CIO, Plaintiff, v. P. P. G. INDUSTRIES, INC., Defendant.

Civ. No. 72 F 15.

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

June 12, 1974.

COPYRIGHT MATERIAL OMITTED

Max E. Hobbs, Fort Wayne, Ind., for plaintiff.

George T. Dodd, Fort Wayne, Ind., for defendant.

MEMORANDUM OF DECISION AND ORDER

ESCHBACH, District Judge.

This cause is before the court on motion of plaintiff for summary judgment filed March 25, 1974 and on a cross-motion for summary judgment filed by defendant on April 8, 1974. For reasons set forth below, both motions will be denied.

This suit was brought pursuant to § 301 of the Labor Management Relations Act of 1947, Title 29 U.S.C. § 185. On October 1, 1969, the parties entered into a collective bargaining agreement which recognized the Union as the sole and exclusive bargaining representative for all employees performing work covered by said Agreement. Article II of that Agreement provided that the Union was to have sole jurisdiction over installment of

all types of aluminum, bronze, or stainless steel materials used for facing and/or framing of buildings, store front construction, etc. All metal doors, glass doors, metal door frames, and any incidental work in connection therewith, also installation of any and all other work or material recognized by the Glazing Industry as glazier's work. . . .

The Agreement also contained in Article XVII provisions for grievance and arbitration machinery. It provided that "any controversy or dispute as to the meaning or application of the provisions of this agreement: will be referred to such machinery."

On or about August 28, 1970, Wright Construction Company informed defendant that its bid to furnish and install glass, glazing, mirrors and installation of an aluminum walkway (a Mapes Free Standing Canopy) for the Central Noble (Albion) High School project had been accepted. Construction began on or about the first day of November, 1971. Plaintiff alleges that under the provisions of the construction subcontract, the defendant had sole jurisdiction over the installation of aluminum, bronze or stainless steel materials used in the construction. The uncontroverted facts indicate that the job of constructing the Mapes Canopy was awarded to the Iron Workers. This determination was made by the Erection Center, a subdivision of P. P. G. Industries, Inc., which obtained the iron workers at the hiring hall for Local 147 of the International Association of Bridge, Structural, and Ornamental Iron Workers. Plaintiff contends that the local collective bargaining agreement between it and defendant requires that defendant assign work of this type involving aluminum construction to plaintiff. It is alleged that the failure of defendant to assign this type of work to plaintiff violated the local collective bargaining agreement. Plaintiff sought to resolve this dispute by resort to the local collective bargaining agreement's Article XVII grievance and arbitration machinery. Defendant, it is alleged, refused to arbitrate. Consequently, plaintiff brought this action for an order to compel arbitration of this dispute.

Defendant admits the fact that the work was assigned to the Iron Workers. However, defendant argues that the October 1, 1969 agreement does not constitute the entire collective bargaining agreement between the parties. Defendant points out that on April 3, 1970, the Building and Construction Trades Department, AFL-CIO, entered an agreement with Participating Contractors Employers' Associations entitled "Plan for Settling Jurisdictional Disputes Nationally and Locally." That plan establishes a National Joint Board for the Settlement of Jurisdictional Disputes in the building and construction industry. Article II, Section 4 of the plan provides that it shall be the duty of the Joint Board to decide cases of jurisdictional disputes in the building and construction industry. Article III, § 7 provides that employers who employ members of the organizations affiliated with the Building and Construction Trades Department, AFL-CIO shall be considered bound by the agreement only after signing a stipulation setting forth that they are willing to subscribe to and be bound by the terms of the agreement. It is alleged by defendant that plaintiff is a member of the Building and Construction Trades Department and is bound by the agreement. Defendant also alleges that it has stipulated to the plan by action of the employers associations of which it is a member.

Finally, defendant contends and plaintiff denies that the matter in controversy is a jurisdictional dispute which plaintiff was bound to submit to the Joint Board and that only the union has the power to submit disputes and that plaintiff failed to submit the dispute. Consequently, defendant argues that submission to the Joint Board was plaintiff's only remedy and that the arbitration clause does not apply to this dispute.

This action was brought under § 301 of the Labor Management Relations Act, 29 U.S.C.A. § 185(a), seeking an order to compel arbitration. It cannot be disputed that this court can grant specific performance of promises to arbitrate grievances. Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). However, the function of the court in cases to compel specific performance of arbitration agreements is very limited. As a matter of law, the court only has jurisdiction to determine whether the dispute presented is one covered by the arbitration provision of the collective bargaining agreement. Int'l Union of Operating Engineers, Local 150 AFL-CIO v. Flair Builders, Inc., 406 U.S. 487, 92 S.Ct. 1710, 32 L.Ed.2d 248 (1972); United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). Therefore, the only issue which this court has the jurisdiction to determine is whether a dispute exists which according to the terms of the agreement of the parties is one which must be committed to arbitration for resolution.

Neither side contests the fact that a dispute does exist. A dispute exists whenever one party to the agreement accuses the other of a violation and the other party denies such violation. United Steelworkers of America v. American Mfg. Co., supra at 569, 80 S.Ct. at 1347; International Union of Operating Engineers, Local 103 v. Crown Constr. Co., Civil No. 70 F 21 (N.D. Ind., Aug. 11, 1970). However, the instant action varies from the paradigm case seeking an order to compel arbitration under § 301 in several very critical respects. Although both parties recognize the existence of a dispute, plaintiff argues that while the dispute may have arisen out of an assignment of work, this is not a classical work assignment dispute as defendant argues. Plaintiff states that a work assignment dispute or a jurisdictional dispute is normally one between two unions involving each union's claim that a particular job should have been assigned to it. Since this suit is only between the union and the contractor, and since no other union has contested the work assignment, this action cannot be characterized as a jurisdictional dispute, but, rather, is a dispute which involves an interpretation or application of the "recognitional" clause of the local agreement. Defendant argues that this is a jurisdictional dispute which must be submitted to the Joint Board.

Although plaintiff's argument has some surface appeal, a closer analysis reveals that plaintiff ignores the reality of the situation as it existed in the fall of 1971. At that time, in addition to the local collective bargaining agreement between these parties and the "Joint Board Agreement," there existed an agreement on a national scale between the International Association of Bridge, Structural and Ornamental Iron Workers and the Brotherhood of Painters, Decorators and Paperhangers of America. The express purpose of that agreement was to facilitate the settlement of jurisdictional disputes between the two unions and establish an understanding which would mutually assist each union to secure and to perform work coming within its jurisdiction. Section I of the agreement provides that the Iron Workers shall have jurisdiction

over the erection of structural and miscellaneous steel; the erection of metal subframing and supports for work described in this agreement; the erection of factory-fabricated windows and sash; the fabrication and erection of ornamental metal, except as qualified in this agreement.

The Iron Workers recognize the jurisdiction of the Brotherhood of Painters, Decorators and Paperhangers of America over

the painting on the job site of all material; the installation of all glass; the fitting, cutting and installation of all glass-retaining moldings and typical division bars. Also ornamental metal referred to as Glazier's work in Sections IV, V and VI of this agreement, provided that the work is in the glass or glazing contractor's contract.

Section IV provides that the installation of metal entrances in schools is the work of the Iron Workers except for metal entrances with tubular doors not exceeding 125 square feet, which shall be the work of the Glaziers. By agreement and stipulation, the National Joint Trade Board of the Glass and Glazing Industry agreed in February of 1961, on behalf of its affiliated members, to assign work in accordance with the agreement between the Iron Workers and the Glaziers. Under the terms of that agreement, the Iron Workers agreed to perform work recognized to be within its jurisdiction without the necessity of the glazing contractor being...