Miron Const. Co., Inc. v. International Union of Operating Engineers, Local 139
| Decision Date | 06 January 1995 |
| Docket Number | 94-1646,Nos. 94-1546,s. 94-1546 |
| Citation | 44 F.3d 558 |
| Parties | 148 L.R.R.M. (BNA) 2199, 129 Lab.Cas. P 11,253 MIRON CONSTRUCTION CO., INC., Plaintiff-Appellant, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 139, Defendant-Appellee, Cross-Appellee, and Wisconsin Laborers District Council, Defendant-Appellee, Cross-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Paul D. Lawent, Association of General Contractors of Wisconsin, Madison, WI, for Miron Const. Co., Inc.
Hugh B. Arnold, Arnold & Kadjan, Chicago, IL, Warren Kaston (argued), International Union of Operating Engineers, Pewaukee, WI, for Intern. Union of Operating Engineers, Local 139 in No. 94-1546.
John J. Toomey (argued), Hugh B. Arnold, Steven F. McDowell, Arnold & Kadjan, Chicago, IL, Warren Kaston, Intern. Union of Operating Engineers, Pewaukee, WI, for Wisconsin Laborers District Council, in No. 94-1546.
Warren Kaston (argued), International Union of Operating Engineers, Pewaukee, WI, for International Union of Operating Engineers, Local 139, in No. 94-1646.
John J. Toomey (argued), Hugh B. Arnold, Steven F. McDowell, Arnold & Kadjan, Chicago, IL, for Wisconsin Laborers Dist. Council, in No. 94-1646.
Before ESCHBACH, RIPPLE and ROVNER, Circuit Judges.
Miron Construction Company ("Miron") filed a complaint under Section 301 of the National Labor Relations Act, 29 U.S.C. Sec. 185, requesting the district court to compel tripartite arbitration of two sets of grievances brought against it by the International Union of Operating Engineers, Local 139 ("Operators") and the Wisconsin Laborers District Council ("Laborers"). The Operators filed a counterclaim asking the district court to compel bipartite arbitration with Miron. The Laborers, in support of Miron's motion for tripartite arbitration, filed a motion to intervene in the Operators' counterclaim and to dismiss it for want of a necessary party. The district court ordered Miron and the Operators to submit to bipartite arbitration and denied Miron's motion for tripartite arbitration and the Laborers' motions to dismiss and to intervene in the counterclaim. 1 We affirm.
Miron is a general construction contractor and a member of a multi-employer bargaining association, the Wisconsin Chapter of Associated General Contractors, Inc., which negotiates collective bargaining agreements with a variety of construction trade unions on behalf of the member employers. By virtue of its membership in this organization, Miron was signatory to a collective bargaining agreement with the Operators ("Area II Agreement"), which granted the Operators the exclusive right to operate forklift trucks in construction jobsites in most of Wisconsin. 2 Miron agreed to subcontract all work covered by the terms of the Area II Agreement to signatories to the Agreement. 3 Should any unresolvable grievances, disputes or complaints arise under the terms of the Agreement, Miron and the Operators agreed to submit all such disputes to final and binding bipartite arbitration. 4 The Agreement excepted no dispute from this mandatory bipartite arbitration procedure. 5
Miron had bound itself to a similar collective bargaining agreement with the Laborers ("Laborers Collective Bargaining Agreement"), which covers the operation of mason-tending forklifts. 6 Like the Area II Agreement, the Laborers' Agreement requires all work covered under the Agreement to be subcontracted to a signatory to the Agreement. 7 Although it is obvious that the Laborers' Collective Bargaining Agreement conflicts with the Area II Agreement over the assignment of mason-tending forklift work, this conflict, unfortunately, is neither uncommon in the industry, nor unknown to this court. 8
In December 1991, Miron was awarded the contract to construct an addition to the American Club in Kohler, Wisconsin. Miron subcontracted the masonry work to Bill Dentinger, Inc. Dentinger was a signatory to the Laborers' Collective Bargaining Agreement, but, according to the Operators, was not a signatory to the Area II Agreement. 9 Pursuant to its contract with the Laborers, Dentinger assigned members of that union to man a masonry forklift used to supply the bricklayer employees with material.
Claiming mason-tending forklift work was covered under the Area II Agreement, the Operators filed a grievance on March 19, 1992 seeking pay in lieu of work for violation of the union signatory subcontracting clause and requested bipartite arbitration of the dispute. The Laborers filed a similar grievance under its Agreement to determine the work was properly assigned to its workers and for pay in lieu of work in the event it was reassigned. Miron refused to submit its dispute with the Operators to bipartite arbitration on the ground that the dispute was jurisdictional in nature. On June 4, 1992, Miron filed a complaint seeking tripartite arbitration among all three parties.
In the meantime, the Laborers threatened to strike if the work was reassigned. On June 12, 1992, Miron filed a Sec. 8(b)(4)(ii)(D) unfair labor practice charge against the Laborers with the National Labor Relations Board ("NLRB"). 10 These two actions formed the necessary predicate for Miron and the Laborers to petition the NLRB for a Sec. 10(k) hearing. 11 The NLRB held a Sec. 10(k) hearing on August 18, 1992 and awarded the work at the Kohler jobsite to the Laborers. 12 Wisconsin Laborers District Council, 309 N.L.R.B. 756 (1992).
During this same summer, the aforementioned set of events repeated themselves at a different jobsite. Miron was awarded the contract to construct the Kettle Moraine Correctional Institute in Sheboygan County, Wisconsin. Miron subcontracted the masonry work to Par Construction Company. Par was not a signatory to the Area II Agreement and employed members of the Laborers to operate the mason-tending forklifts. The Operators again filed a grievance seeking pay in lieu of work. The Laborers promptly responded with its own grievance. Miron again refused to submit to bipartite arbitration with the Operators and, on January 19, 1993, amended its complaint filed in the district court on June 4, 1992 to include the two new grievances. Miron also filed for an NLRB determination of this second dispute and the parties are still awaiting the Board's ruling. In February 1994, the district court granted summary judgment in favor of the Operators on its counterclaim and against Miron's complaint and ordered Miron to submit to bipartite arbitration with the Operators. The district court also denied the Laborers' motion to intervene and motion to dismiss the Operators' counterclaim for want of a necessary party because it failed to show how it would be prejudiced by such arbitration.
Relying primarily on common law and policy justifications from other circuits, Miron and the Laborers argue on appeal that the jurisdictional nature of their dispute with the Operators authorizes this court to order the parties to submit to tripartite arbitration. Alternatively, they contend that the Operators' demand for bipartite arbitration for a violation of the subcontracting clause should be dismissed because it is in direct conflict with the NLRB's award of the work to the Laborers. Finally, to the extent that this circuit's precedent to the contrary on both of these arguments applies and cannot be distinguished, Miron and the Laborers invite this court to overrule such precedent.
We review the district court's grant of summary judgment de novo. Colip v. Clare, 26 F.3d 712, 714 (7th Cir.1994); International Union of Operating Eng'rs, Local 103 v. Indiana Constr. Corp., 910 F.2d 450, 452 (7th Cir.1990). All facts and reasonable inferences to be drawn therefrom are viewed in the light most favorable to the non-movant party. International Union of Operating Eng'rs v. Associated Gen. Contractors, 845 F.2d 704, 705 (7th Cir.1988). The Operators will prevail only if there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Indiana Constr., 910 F.2d at 452; Fed.R.Civ.P. 56(c).
All parties to this case have offered to submit to some form of arbitration to resolve their respective disputes. However, this court will not rely on that general willingness to arbitrate as authority for ordering the three parties to come together and arbitrate any dispute which has arisen. "[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." AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986) (quoting Steelworkers v. Warrior Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960)). The contract determines which disputes will be arbitrated as well as the method of arbitration. We show "strong deference to the grievance procedures established by the parties to a collective bargaining agreement." Laborers Int'l Union, Local 309 v. W.W. Bennett Constr. Co., 686 F.2d 1267, 1271 (7th Cir.1982). Finally, "[t]he duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty." AT & T Technologies, Inc., 475 U.S. at 649, 106 S.Ct. at 1419 (quoting John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-47, 84 S.Ct. 909, 912-13, 11 L.Ed.2d 898 (1964)). Our task, therefore, is to examine the Area II Agreement and determine whether the dispute between Miron and the Operators is subject to bipartite arbitration, or whether the jurisdictional character of the underlying dispute requires Miron and the Operators to join with the Laborers and submit to tripartite arbitration.
While many collective bargaining agreements do exclude jurisdictional disputes from the normal arbitration procedures, 13 the Area ...
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