Transit Mix Concrete Corp. v. Local Union No. 282, Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America

• Decision Date: 22 January 1987
• Docket Number: No. 619,D,619
• Parties: 125 L.R.R.M. (BNA) 3192, 105 Lab.Cas. P 12,165 TRANSIT MIX CONCRETE CORPORATION, Petitioner-Appellant, v. LOCAL UNION NO. 282, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent-Cross Petitioner-Appellee. ocket 86-7847.
• Court: U.S. Court of Appeals — Second Circuit

Page 963

809 F.2d 963

125 L.R.R.M. (BNA) 3192, 105 Lab.Cas. P 12,165

TRANSIT MIX CONCRETE CORPORATION, Petitioner-Appellant, v. LOCAL UNION NO. 282, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,

Respondent-Cross Petitioner-Appellee.

No. 619, Docket 86-7847.

United States Court of Appeals, Second Circuit.

Argued Jan. 9, 1987.

Decided Jan. 22, 1987.

Alexander A. Miuccio, New York City (Altieri, Kushner, Miuccio & Frind, New York City, on the brief), for appellant Transit Mix.

Eugene S. Friedman, New York City (Franklin K. Moss, and Cohen, Weiss and Simon, New York City, on the brief), for appellee Local No. 282.

Before FEINBERG, Chief Judge, and TIMBERS and PIERCE, Circuit Judges.

TIMBERS, Circuit Judge.

Appellant Transit Mix Concrete Corporation ("appellant") appeals from a judgment and order entered in the Southern District of New York, John E. Sprizzo, District Judge, denying appellant's petition for a permanent stay of arbitration of a labor dispute and granting a cross petition of appellee Local Union No. 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("appellee") to compel arbitration of that dispute. 643 F.Supp. 1002.

The collective bargaining agreement ("the CBA") ¹ between the parties contains a broad arbitration provision. In another clause, the agreement states that all arbitration awards "shall be final, conclusive and binding" ("the finality clause").

Appellant claimed in the district court that an earlier arbitration award already had resolved the issues raised in the present dispute which is the subject of appellee's cross petition to compel arbitration ("the present dispute") and therefore that the finality clause barred arbitration of the present dispute.

In granting appellee's cross petition to compel arbitration, the district court held that the CBA's broad arbitration clause encompassed the present dispute, including questions as to the applicability and effect of the finality clause.

On appeal, appellant claims that the district court erred in compelling arbitration since, by virtue of the finality clause, appellant had not agreed to arbitrate the present dispute.

We hold that the present dispute is arbitrable and that the CBA's broad arbitration clause leaves to the arbitrator, at least in the first instance, the task of determining both the extent to which the earlier arbitration award resolved the issues raised in the present dispute and the effect of the finality clause. We hold that the district court correctly granted the cross petition to compel arbitration. We affirm.

I.

The facts are straightforward and not in dispute.

Appellant is a supplier of ready-mix concrete. It employs drivers to deliver concrete to construction sites throughout the New York metropolitan area. Appellee is a labor union.

We previously have set forth facts, relevant to the instant appeal, in an opinion enforcing an order of the National Labor Relations Board ("the NLRB") against appellee. NLRB v. Local 282, International Brotherhood of Teamsters, 740 F.2d 141 (2 Cir.1984). We assume familiarity with that opinion. We shall summarize here only those additional facts believed necessary to an understanding of the issue raised on the instant appeal.

Appellant and appellee are parties to a CBA making appellee the exclusive bargaining representative of the drivers employed by appellant. That agreement sets forth a procedure for the settlement of disputes. Arbitrable disputes are submitted first to a Joint Labor-Management Disputes Panel ("the Panel"), which acts as a "Board of Arbitration". Appellant and appellee each appoint an equal number of representatives to the Panel. In the event that the Panel is deadlocked, the dispute is submitted to an "impartial arbitrator". The impartial arbitrator is selected from a list set forth in an appendix to the CBA. The selection is by lot unless "the parties involved in the selection process ... agree upon [an] alternate procedure for such selection."

The arbitration clause of the CBA sets forth the types of disputes that are arbitrable:

"Jurisdiction of the Panel. Any and all complaints, grievances, controversies or disputes between the Union [appellee] and the Employer [appellant] in connection with or in relation to this Agreement or concerning the interpretation, application, performance or alleged breach thereof by either of the parties hereto, or by any other party signatory to this industry-wide collective bargaining Agreement or with respect to any term or condition of employment hereunder, which the parties are unable to settle between them, may, except for disputes concerning discharge of or disciplinary action against an Employee, be submitted for arbitration and final determination to the [Panel]."

The CBA provides further that the impartial arbitrator "shall have all the powers granted to the Panel herein."

The finality clause is a "Miscellaneous Provision [ ] " in the "Settlement of Disputes" section of the CBA. It provides:

"All determinations, decisions and awards shall be final, conclusive and binding upon the parties hereto and may be enforced as any other arbitration award in accordance with the laws of the State of New York."

On February 13, 1976, appellant purchased the assets of the Colonial Sand and Stone Company ("Colonial"), theretofore a rival ready-mix concrete supplier. At that time Colonial employed 237 drivers ("the Colonial drivers"); appellant employed 72 drivers ("appellant's drivers"). A CBA between appellee and Colonial made appellee the exclusive bargaining representative of the Colonial drivers.

Prior to the February 13 agreement, both appellant and Colonial maintained seniority lists of their drivers. When drivers were needed, they were called to work according to their positions on the seniority lists. Some drivers worked regularly; others were temporarily out of work, or "laid off". Under a provision of the CBA between appellant and appellee, if a purchase of the assets of another corporation is a "merger", then the drivers of the acquired corporation are inserted into their appropriate positions on the seniority list of appellant's drivers. If the purchase is a "buy-out", then the drivers of the acquired corporation "go to the bottom of the list." ² Appellant treated the purchase of Colonial as a buy-out. An arbitration award made in June 1976 confirmed this characterization of the transaction. Accordingly, the Colonial drivers were placed at the bottom of the seniority list of appellant's drivers.

By 1978, appellant had attempted to recall for regular work those Colonial drivers who had been ranked at number 138 or above on Colonial's seniority list. Not all of those drivers responded to appellant's recall letters. Some of those who did respond either declined appellant's offers of employment or worked for appellant only intermittently.

In early 1979, a dispute arose over appellant's obligation to continue to recall Colonial drivers. Since appellant was having difficulty obtaining a sufficient number of drivers to perform its workload, it wanted to hire drivers who had not been on Colonial's seniority list. It therefore took the position that Colonial drivers who had not "shaped" (i.e., reported for work) or communicated with appellant since 1976 should be removed from the seniority list. Appellee disagreed. The dispute was submitted to the Panel for arbitration.

The panel deadlocked. The dispute accordingly was submitted to Arbitrator Herbert Lippman. He was asked to resolve the following question: "What is the reasonable length of time within which an employee of the Company [appellant] must shape up, call or contact the Company to remain part of the Company work force and retain his seniority?"

On June 27, 1979, Arbitrator Lippman issued his award ("the award" or "the Lippman award"). The award stated that "[a]n employee who does not shape, call or contact the Company for work for a period of one year, shall be deemed to have abandoned his position with the Company and shall no longer be considered an employee of the Company." In an opinion accompanying the award, Arbitrator Lippman stated that 146 Colonial drivers who had not shaped or communicated with appellant for a period in excess of three years "have abandoned their positions with the Company and are no longer members of the work force by their own choice."

In late 1979 or early 1980, Ted Katsaros, a laid-off Colonial driver who had held number 152 on Colonial's seniority list, discovered that appellant was hiring new drivers. After making inquiries he learned of the Lippman award. On June 11, 1980, Katsaros filed an unfair labor practice charge with the NLRB. He charged that appellee, in complicity with appellant, had violated the rights of the Colonial drivers under Sec. 7 of the National Labor Relations Act ("NLRA"), 29 U.S.C. Sec. 157 (1982), by contriving a fraudulent arbitration proceeding and failing to inform them of the Lippman award.

After administrative proceedings not relevant to this appeal, Katsaros' charge resulted ultimately in a decision and order filed August 26, 1983 by the NLRB. Local 282, International Brotherhood of Teamsters, 267 N.L.R.B. 1130 (1983). The NLRB concluded that "[b]y arbitrarily, and without lawful and legitimate reason, failing to notify employees it represents of the terms of an arbitration award significantly altering the requirements to be fulfilled to maintain their seniority, [appellee] has breached its duty of fair representation in violation of Section 8(b)(1)(A) of the [NLRA, 29 U.S.C. Sec. 158(b)(1)(A) (1982) ]." 267 N.L.R.B. at 1131. The NLRB ordered appellee among other things to "[r]equest the arbitrator who heard the arbitration at issue herein to reopen the proceeding to provide for notice of the terms of the award to affected employees and a retroactive grace period for those employees who have been...