Shank/Balfour Beatty v. Intern. Broth., Local 99, 06-2480.

• Decision Date: 06 August 2007
• Docket Number: No. 06-2480.,06-2480.
• Citation: 497 F.3d 83
• Parties: SHANK/BALFOUR BEATTY, A JOINT VENTURE OF M.L. SHANK, CO., INC., and Balfour Beatty Construction, Inc., Plaintiff, Appellant, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 99, a/k/a IBEW LOCAL 99, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

497 F.3d 83

SHANK/BALFOUR BEATTY, A JOINT VENTURE OF M.L. SHANK, CO., INC., and Balfour Beatty Construction, Inc., Plaintiff, Appellant, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 99, a/k/a IBEW LOCAL 99, Defendant, Appellee.

No. 06-2480.

United States Court of Appeals, First Circuit.

Heard April 3, 2007.

Decided August 6, 2007.

Mark T. Bennett, with whom Stephen J. Schultz and Marks, Golia & Finch, LLP, were on brief, for appellant.

Carly Beauvais Iafrate, with whom Gerard P. Cobleigh was on brief, for appellee.

Before LYNCH and HOWARD, Circuit Judges, and YOUNG,^* District Judge.

LYNCH, Circuit Judge.

This labor arbitration case raises three issues. The main issue is whether a grievance between one union and management over work assignment constitutes a "jurisdictional" dispute and so is explicitly excluded from arbitration under the terms of a collective bargaining agreement ("CBA"). On this issue, we affirm the district court's findings that (1) the question of arbitrability was an issue for the court to decide, not the arbitrator, and (2) the grievance was arbitrable because it was not a jurisdictional dispute — only one union affirmatively laid claim to the work against management's assertions it could assign the work as it wished. See Shank/Balfour Beaty v. Int'l Bhd. of Elec. Workers, No. CA 06-43 ML, 2006 WL 2707325, at *3-4 (D.R.I. Sept.19, 2006).

We also affirm enforcement of the award and the remedy the arbitrator awarded the union, in the face of management's claim that the remedy violates the management rights section of the CBA. However, while we leave in place the judgment against the joint venture which was a party to the agreement and the suit, we vacate judgment against one entity which was not a party to the case.

I.

Shank/Balfour Beatty ("Shank/BB") and International Brotherhood of Electrical Workers, Local 99 ("Local 99"), together with two other unions, are parties to a collective bargaining agreement that provides for the arbitration of all disputes under the agreement that are not "jurisdictional dispute[s]."

Shank/BB is a joint venture of two corporations, M.L. Shank Co., Inc. and Balfour Beatty. In March 2002, Shank/BB and three unions signed a "Special Tunnel Agreement." This Agreement governed their relationship in constructing the Main Spine Tunnel and Ancillary Facilities Project for the Narragansett Bay Commission. The project's purpose is to dig a 16,000-foot-long tunnel, 26 feet in diameter, under the city of Providence, Rhode Island, to hold up to 60 million gallons of combined waste water pending processing. The three unions involved were Local 99, representing electricians, a union representing laborers, and a union representing operating engineers.

Section 7 of the Agreement, titled "Jurisdiction," provides that "[Shank/BB] shall assign jurisdiction for the work as follows: . . . In general, the Electricians shall have jurisdiction for performing electrical work required for manufacturing equipment and for construction of the work." Similarly, that section defines the work that falls within the jurisdiction of the operating engineers and of the laborers.

Section 7 also provides that "[t]here shall be no strikes, work stoppages, or slow-downs, or other disruptive activity, arising from any jurisdictional dispute." That section then provides for the resolution of jurisdictional disputes as follows: "Should a jurisdictional dispute arise, the dispute shall be settled by the Unions themselves, and [Shank/BB] shall be bound by that settlement. . . . If the Unions cannot reach any settlement, [Shank/BB's] original assignment shall remain in effect."

By contrast, Section 11 of the Agreement mandates the use of a grievance procedure which culminates in binding arbitration to settle "[a]ny dispute arising from performance of this [Agreement]," but this procedure specifically does not apply to "a jurisdictional dispute."

The joint venture used a tunnel boring machine ("TBM"), approximately 255 feet long and weighing over 690 tons, to dig the tunnel. The TBM contained a series of electrical panels, inside of which were push-button motor starters, breakers, and other circuitry. On the front of the door to each of these panels was a warning sign indicating that the circuitry within had multiple voltage supply sources, including 480-volt sources, and stating "Electrical Equipment, Authorized Personnel Only."

In March 2004, Local 99 called a meeting with the company and the other unions, claiming that "electrical work" was being done by members of the other unions. The company took the position that the disputed work, including "pushing start-stop and breaker reset buttons for . . . TBM operating functions," was not "electrical work" under the Special Tunnel Agreement, and that "any craft could do" this work. The laborers' and operating engineers' unions agreed with the company's assessment. That meeting was convened under the CBA procedures for jurisdictional disputes.

In June 2004, the company implemented a third shift of work for the project. Unlike the first two shifts, no electricians were assigned to the third shift, although electricians were sometimes called out to do work on that shift. Patrick Brady, a Local 99 steward, became aware that non-electricians on the third shift "were being instructed to go into the switch gear and throw breakers on and off" and were otherwise performing what Brady considered to be electrical work.

On August 24, 2004, Brady told the third-shift workers as a group "that it was very dangerous for them to be in that equipment" and that non-electricians "should [not] be doing the electrical work." According to Brady, Donald Umling, a foreman for the third shift and a member of the operating engineers' union, responded that he was "doing the electrical work" and would "continue doing the electrical work," particularly if there was no electrician around.

In February 2005, while Brady and another electrician were running a cable across the top of the TBM, one of the breakers on the machine switched off, thereby shutting down the machine. The two electricians started to track down the problem. According to Brady, Umling began "randomly throwing breakers" to try to restart the machine. At some point, Umling threw the breaker that had switched off, and the machine started up while the electricians were still working on it. According to Brady, had one of the electricians been working in the panel that "kicked in," that person could have been electrocuted.

On February 14, 2005, Local 99 filed a grievance about the incident with Shank/BB. Local 99 alleged:

Electrical work on the [tunnel project] has been done, and is continuing to be done[,] by unlicensed 3rd shift personnel other than members of [Local 99] in violation of the Special Tunnel Agreement and The State of Rhode Island licensing laws, with the knowledge and apparent approval of Michael Shank, Managing Partner, [Shank/BB].

On February 25, the union made a corresponding demand for arbitration of the dispute. Shank's initial position in response to Local 99's grievance was that the dispute was not a jurisdictional dispute under the CBA. In a pre-arbitration letter, Shank stated: "[T]he incident you describe does not involve a jurisdictional dispute under Article 7. Neither [the operating engineers' union], nor [Shank/BB], contend that any craft except IBEW Local 99 has jurisdiction for performing electrical work."

The parties appeared before an arbitrator on May 6, 2005. At that hearing, the company took the position that the matter was not arbitrable because it was a jurisdictional dispute. The company further argued that the question of whether the matter was a jurisdictional dispute was a question of substantive arbitrability, and thus beyond the power of the arbitrator to decide. The arbitrator ruled against the company on both points and later took evidence on the merits at a hearing on June 6. The company participated in the latter hearing subject to preserving its right to challenge both the arbitrability of the matter and the arbitrator's authority to decide the question of arbitrability.

On October 10, 2005, the arbitrator issued an award and written decision in favor of Local 99. The arbitrator first held that the arbitration clause of the Special Tunnel Agreement was broad enough to grant him the authority to decide arbitrability. The arbitrator also suggested that Shank/BB may have forfeited its right to a "judicial interpretation of the arbitration clause" by not seeking a court determination "in the first instance." The arbitrator analogized to the rule that "failure to promptly appeal a denial of arbitration will, if prejudicial to the opposing party, operate to forfeit the demanding party's right to arbitration." Franceschi v. Hosp. Gen. San Carlos, Inc., 420 F.3d 1, 4 (1st Cir.2005).

The arbitrator then found that the matter was arbitrable because it was not a jurisdictional dispute. Citing the National Labor Relations Board's usage of the term, the arbitrator described a jurisdictional dispute as "one between two unions over a proper allocation of work." He described the complaint before him as being instead "that Mr. Umling, alone, is performing electrical work which he is not capable of performing safely." According to the arbitrator, the dispute centered on Umling's actions "as a member of management," and his membership in the operating engineers' union was "inconsequential."

Finally, on the merits of the dispute, the arbitrator found that "the same facts which compel a finding of arbitrability are equally persuasive on the question raised by the grievance." In particular, he found the claim of "unsafe work conditions" to be "well supported by the evidence." For a remedy, the arbitrator ordered the company to assign an electrician to the third shift going forward and to pay back pay and benefits corresponding to such a third-shift...