Reid Burton Const. Inc. v. Carpenters Dist. Council of Southern Colorado
| Decision Date | 06 May 1976 |
| Docket Number | No. 75-1149,75-1149 |
| Citation | 535 F.2d 598 |
| Parties | 92 L.R.R.M. (BNA) 2321, 78 Lab.Cas. P 11,413 REID BURTON CONSTRUCTION, INC., a Colorado Corporation, Plaintiff-Appellant, v. CARPENTERS DISTRICT COUNCIL OF SOUTHERN COLORADO et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Robert G. Good, Denver, Colo., for plaintiff-appellant.
John W. McKendree, Denver, Colo., for defendants-appellees.
Before LEWIS, Chief Judge, and SETH and McWILLIAMS, Circuit Judges.
Two clearly drawn but different issues are involved in this appeal: (1) Whether Reid Burton Construction's claim for damages arising out of the unions' alleged violation of the no-strike clause was arbitrable, and if so, (2) whether the unions, because of certain pleading and procedural tactics employed by them in the district court, were prevented by the equitable doctrines of waiver, estoppel, repudiation, or laches from asserting the arbitrability of Burton Construction's complaint. Finding both of these issues arbitrable, the district court dismissed the present action.
Since this appeal is not concerned with the merits of the underlying damage claim, we need only outline those facts which led to the filing of this action. Burton Construction, a signatory to a collective bargaining agreement with the Carpenters District Council of Southern Colorado and its affiliated local unions of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, was approached by the Colorado Building and Construction Trades Council to sign an agreement whereby it would only subcontract with other employers who were in contractual relationship to labor organizations affiliated with the Building Trades Council. Burton Construction refused to sign the agreement and the Building Trades Council picketed several of Burton Construction's building sites during parts of March and April of 1973.
In spite of a no-strike clause in the collective bargaining agreement, union carpenters refused to cross the picket lines. As a result, on July 13, 1973, Burton Construction filed this damage claim in district court against the Colorado Building and Construction Trades Council, the Carpenters District Council of Southern Colorado, and Local 1340 of the United Brotherhood of Carpenters and Joiners. All three of the defendants made motions to be dismissed from the lawsuit. The court did dismiss the Building Trades Council, but denied the similar motions of the District Council and Local 1340.
In their answers filed on November 9, 1973, the District Council and Local 1340 admitted jurisdiction under section 301 of the National Labor Relations Act as to the District Council, but asserted that "Local 1340 is not a party to the aforementioned collective bargaining agreement." Also in their answer, as an affirmative defense the District Council and Local 1340 alleged:
This Court has no jurisdiction over the subject matter of this action because it involves the interpretation and application of the collective bargaining agreement . . . which is within the sole and exclusive province of the dispute resolution machinery contained therein which provisions contain the exclusive remedy for breaches thereof.
The unions also counterclaimed against Burton Construction, alleging that it had breached the collective bargaining agreement by filing this action for failure to have first used the grievance and arbitration procedures contained in the agreement for processing disputes. In Burton Construction's answer to the counterclaim, it contended that the unions had waived their right to arbitration and that the counterclaim was barred because of laches.
More than a year after the complaint was filed, the unions admitted that while they did not consider Local 1340 to be a "party" to the collective bargaining agreement, they did consider it to be "bound by the substantive terms of the agreement." The case proceeded to a trial on October 1, 1974, wherein the trial court determined that both the alleged violation of the no-strike clause and the issue of whether estoppel, waiver, repudiation, or laches should prevent the unions from demanding arbitration were arbitrable issues. The trial court based the latter determination on its reading of Operating Engineers Local 150 v. Flair Builders, Inc., 406 U.S. 487, 92 S.Ct. 1710, 32 L.Ed.2d 248. The trial court initially intended to order a stay pending the arbitration of these two issues, but noted that if Burton Construction would prefer, the court would dismiss the action in order to perfect the appellate record. Burton Construction opted for the latter and this appeal followed.
The first issue of whether Burton Construction's damage claim for alleged breach of a no-strike clause was an arbitrable issue must be decided by a careful analysis of Drake Bakeries, Inc. v. Local 50, Bakery Workers, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474, and Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462. Both of these cases, which were decided the same day, were damage actions brought by employers against the unions for violations of no-strike or work stoppage provisions in the respective collective bargaining agreements. In each case the unions argued that the issues were arbitrable and that the courts should stay the actions pending arbitration. Basing its opinion on the intended scope and effect of each collective bargaining agreement, the Court reached different results.
The fact that the Supreme Court reached different conclusions in Atkinson and Drake Bakeries is consistent with its earlier observation in Warrior & Gulf Navigation where it stated that "arbitration 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." United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409, 1417. Our first question therefore is one of contractual interpretation whether a violation of the no-strike clause was intended by Burton Construction and the unions to be subject to Article XIII, the grievance and arbitration provisions of the collective bargaining agreement.
Neither Drake Bakeries nor Atkinson definitively answers our question, since the language of Article XIII falls somewhere in between the pertinent grievance and arbitration provisions in those cases. In Atkinson, the Court found it persuasive that the grievance and arbitration clause applied only to employee-initiated grievances and was not intended to include "all of their possible disputes." 1 The applicable grievance provision in Drake Bakeries, however, was much more broadly written it was to include "all complaints, disputes or grievances arising between (the parties)" and clearly indicated that either labor or management could process a grievance. 2 The standard of analysis used by the Court apparently fixes on two factors: (1) Whether the grievance and arbitration provisions were wholly employee and union initiated or could be initiated by either the employees or the employer, and (2) whether disputes over the violation of no-strike clauses were intended by the parties to be subject to grievance and arbitration procedures.
Each of the cases that has ruled that a violation of a no-strike clause is not subject to arbitration has done so when the grievance and arbitration provisions were wholly employee and union initiated. 3 Burton Construction contends that Article XIII is wholly employee initiated, citing the following language:
In the event that a dispute arises involving the application or interpretation of the terms of this agreement, reasonable and diligent effort shall be exerted by the employee with the employer's representative, the employee contacting the business representative through the steward, and/or the business representative with the employer's representative(.)
We find this language ambiguous as to whether an employer can initiate a grievance, but in the context of the sentence immediately following the quoted language, it becomes apparent that the parties intended that either party could process a grievance:
If the two parties are unable to reach a settlement, the dispute shall be reduced to writing and the aggrieved party shall notify the other party the dispute is being referred to a Board of Adjustment.
(Emphasis added.) Reference to the parties as "the aggrieved party" and "the other party" is, as was the case in Drake Bakeries, indicative that under the agreement either party could initiate the grievance procedure.
The second prong of the Atkinson-Drake Bakeries analysis is one of contractual interpretation whether the language of Article XIII is broad enough to include alleged violations of the no-strike clause. Article XIII provisions were intended to cover any "dispute . . . involving the application or interpretation of the terms of th(e) agreement." This language is much more analogous to the language in Drake Bakeries, which the Court determined was broad enough to cover a violation of a no-strike clause, than to the corresponding provision in Atkinson. 4 The similarity between Article XIII and the language in Drake Bakeries together with the Warrior & Gulf presumption of arbitrability that disputes should be arbitrated "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute" convinces us that the district court correctly concluded that under this collective bargaining agreement, the alleged violation of the no-strike clause was an arbitrable issue.
In its trial memorandum, Burton Construction raised the issue of whether the unions were estopped from claiming any right of arbitration on the basis of certain equitable principles (e. g., repudiation, laches, waiver) because of their dilatory pleading practices before the...
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