CIEA v. Local Union No. 210, Laborers International Union of North America ( 2009 )

08-4647-cv
CIEA v. Local Union No. 210, Laborers International Union of North America, AFL-CIO
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2009
(Argued: September 2, 2009 Decided: September 11, 2009)
Docket No. 08-4647-cv
CONSTRUCTION INDUSTRY EMPLOYERS ASSOCIATION and MC KINNEY DRILLING COMPANY ,
Petitioners-Appellees,
v.
LOCAL UNION NO . 210, LABORERS INTERNATIONAL UNION OF NORTH AMERICA ,
AFL-CIO,
Respondent-Appellant.
Before: CALABRESI, CABRANES, and HALL, Circuit Judges.
Appeal from a judgment of the United States District Court for the Western District of New
York (Richard J. Arcara, Chief Judge) entered August 21, 2008 granting petitioners’ motion to stay
arbitration in a dispute arising under a collective bargaining agreement. Because the underlying
dispute between petitioners and respondent union is jurisdictional, and because the collective
bargaining agreement at issue expressly provides that jurisdictional disputes are not subject to
arbitration, we hold that the underlying dispute is not arbitrable. We also hold that the District
Court properly determined that it, and not an arbitrator, should determine whether the underlying
dispute was arbitrable.
Affirmed.
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ROBERT A. DOREN , Bond, Schoeneck & King, PLLC,
Buffalo, NY, for Construction Industry Employers
Association and McKinney Drilling Company.
JOHN A. COLLINS (Richard D. Furlong, on the brief), , for Local
Union No. 210, Laborers International Union of North
America, AFL-CIO.
Per Curiam:
In this appeal, we consider whether (1) a dispute between a construction company and labor
union is “jurisdictional” and therefore not subject to arbitration under a collective bargaining
agreement and (2) the District Court properly determined that it, and not an arbitrator, should
decide the issue of arbitrability with respect to the same dispute.
BACKGROUND
The following facts are undisputed, except where otherwise noted. Petitioner-appellee
Construction Industry Employers Association (“CIEA” or petitioner) is an association of employers
performing construction work. Petitioner-appellee McKinney Drilling Company (“McKinney” or
petitioner), a member of CIEA, is a construction company that specializes in, among other things,
creating caissons, which are deep holes that are filled with concrete and rebar to create foundations
for buildings. Relevant to this appeal, caissons may be created in two ways. When soil is sufficiently
firm and stable, caisson work entails simply drilling deep holes into the ground and then filling them
with concrete and rebar. However, if the soil is soft or unstable, caissons must be stabilized with
steel pilings or braces.
CIEA has entered into a collective bargaining agreement (“Laborers CBA”) with
respondent-appellant Local Union 210, Laborers International Union of North America, AFL-CIO
(“Laborers Union” or respondent). It has also entered into an agreement (“Carpenters CBA”) with
the United Brotherhood of Carpenters and Joiners of America, Local 289 (“the Carpenters Union”).
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As a member of CIEA, McKinney is bound by each of these agreements. Pursuant to them, the
Carpenters Union and the Laborers Union each retain “jurisdiction” to perform certain forms of
work on behalf of McKinney. If a union has “jurisdiction” over work covered in a CBA, then
McKinney is obligated to hire members of the union to perform those tasks.
The Carpenters CBA provides that, when McKinney is performing certain types of work, it
is bound by a collective bargaining agreement between Construction Pile Driving Employers and
the Empire State Regional Council of Carpenters, who represent the Pile Drivers, Dock Builders,
Divers, Trestle, Crib, and Breakwater Builders of the United Brotherhood of Carpenters and Joiners
of America (“Pile Drivers CBA”). In turn, pursuant to the Pile Drivers’ CBA, the following work is
stated to fall within scope of work of the Carpenters Union:
3. Drive and brace piling for caisson work. Erect all concrete forms down from the cellar
bottom and column base in cellar bottom, where such forms are directly attached to
form a part of the capping or heading of piles or caissons. Erect all necessary
shoring including ties and guardrails on elevated trestles. . . . All pile driving of . . .
steel and/or concrete piles and sheeting pile for subway, sewer, tunnel and other
engineering construction, also extraction of all piles, also all bracing of work listed in
all subsections shall be the work of pile drivers.
10. Installation of Caissons, Piling, or Soldier Pile—A minimum of one (1) pile driver
shall be placed with each drilling rig, when such rig is utilized for the installation of
piling or caissons. To exclude drilling when temporary casings or permanent
castings are not used.
J.A. 136, 138 (Pile Drivers’ CBA, Art. IV, Secs. 3, 10) (emphasis added). McKinney has interpreted
this provision of the Pile Drivers CBA to mean that it must hire members of the Carpenters Union
to perform caisson work when soft or unstable soil requires that caissons be fortified with steel
braces or pilings. Accordingly, in an effort to comply with the Pile Drivers CBA, McKinney has for
years employed members of the Carpenters Union to perform this type of work.
On the other hand, pursuant to the Laborers CBA, McKinney workers who are members of
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the Laborers Union also have the right to perform caisson work. Among other things, the following
tasks are stated to fall to members of the Laborers Union:
Excavating for building and all other construction, digging of trenches, piers,
foundations and holes; digging, lagging, sheeting, cribbing, bracing and propping of
foundations, holes, caissons, cofferdams, dams, dikes and irrigation trenches, canals
and all handling, filing, and placing of sandbags connected therewith. All drilling,
blasting and scaling on the site or along the right-of-way, as well as access roads,
resevoirs, including temporary lines.
J.A. 32 (Laborers’ CBA, Art. II, Sec. 2(l)) (emphasis added). McKinney has interpreted this
provision to mean that it must hire members of the Laborers Union to perform caisson work
whenever soil conditions permit the work to be done without steel braces. McKinney has
traditionally hired members of the Laborers Union to perform this type of work.
The dispute underlying this litigation arose in January 2008 after McKinney won contracts to
perform caisson work at the Ford Stamping Plant in Woodlawn, New York (“Ford Plant”), and the
NRG Energy Huntley Plant in Tonawanda, New York (“Huntley Plant”). Prior to drilling,
McKinney tested the soil composition at each location to determine whether it was stable or
unstable. After conducting its preliminary tests at the Ford Plant and the Huntley Plant, McKinney
determined that, at each site, the soil was unstable and that it would need to use steel braces to
stabilize the foundation. In accordance with its customary practice, and pursuant to the Pile Drivers
CBA, McKinney hired members of the Carpenters Union to perform the work at each plant.
On or about January 29, 2008, Sam Capitano, an agent of the Laborers Union, contacted
McKinney to express his view that McKinney should have hired members of Laborers Union to
perform the work at the Ford and Huntley Plants. On March 10, 2008, the Laborers Union notified
CIEA and McKinney that it intended to arbitrate the question whether, under the Laborers CBA,
McKinney was required to hire members of the Laborers Union, instead of members of the
Carpenters Union, for work at the Ford and Huntley Plants and for other caisson work where soft
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or unstable soil required the use of steel braces or pilings. On March 17, 2008, CIEA and
McKinney sent a letter to the Laborers Union in which it denied the union’s grievance, citing
McKinney’s history of providing those jobs to the Carpenters Union in accordance with the Pile
Drivers’ CBA. More importantly for the instant matter, CIEA and McKinney took the position that
the dispute was jurisdictional in nature and therefore excluded from the grievance and arbitration
process under the Laborers CBA. In support of the latter claim, CIEA relied on Article XII, Section
7 of the CBA, which provided that “[d]isputes of jurisdictional nature shall not be subject to this
grievance and arbitration procedure.” J.A. 57 (Laborers’ CBA Art. XII, Sec. 7). According to
CIEA, Article XIII of the Laborers CBA, titled “Jurisdictional Disputes,” see J.A. 57, provided only
for negotiation of the issue.
On March 28, 2008, CIEA and McKinney filed in the United States District Court for the
Western District of New York an application for a permanent stay of the arbitration proceedings
commenced against them by the Laborers Union. The Laborers Union opposed the petition and
counterclaimed to compel petitioners to arbitrate the grievance. Both sides agreed that, under the
CBA, jurisdictional disputes were not subject to arbitration. The Laborers’ Union argued, however,
that the dispute between the parties was not “jurisdictional.” Rather, according to the Laborers
Union, the dispute concerned an alleged breach of the Laborers CBA whereby the Laborers Union
simply sought to preserve work that it had traditionally done. The Union contended, and petitioners
did not deny, that a dispute over “work preservation” would have to be resolved in a binding
arbitration proceeding. The Laborers Union also argued that the arbitrator, rather than the District
Court, should determine whether the dispute was jurisdictional in nature and whether the arbitrator
was authorized to hear the grievance under the CBA.
Neither party filed a motion for summary judgment. However, at oral argument before the
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District Court, each agreed that the proceeding was in the posture of cross-motions for summary
judgment. In an August 20, 2008 Decision and Order, the District Court (Richard J. Arcara, Chief
Judge) granted the motion of petitioners and denied the Laborers Union’s motion, holding that (1)
the underlying dispute was indeed “jurisdictional” and therefore not subject to arbitration under the
Laborers CBA and (2) the District Court, not the arbitrator, should properly determine whether the
parties had contracted to arbitrate the dispute. See J.A. 217-230 (Constr. Indus. Employers Ass’n v. Local
Union 210, Laborers Int’l Union of N. Am., No. 08-cv-260A (W.D.N.Y. Aug. 20, 2008)).
The Laborers Union filed this timely appeal.
DISCUSSION
On appeal, the Laborers Union challenges each of the District Court’s holdings. Specifically,
it contends that the underlying dispute is not in fact “jurisdictional” but, rather, is subject to
arbitration because it concerns the Union’s “preservation of work” traditionally performed under
the Laborers CBA or, alternatively, the right of the Laborers Union, pursuant to the Laborers CBA,
to represent employees engaged in the type of caisson work at issue. Further, the Laborers Union
argues that the District Court erred in ruling on the issue of arbitrability and instead should have
deferred to the arbitrator.
We review the District Court’s grant of summary judgment de novo, construing all facts in
favor of the respondent, Laborers’ Union. See, e.g., Graves v. Finch Pruyn & Co., 457 F.3d 181, 183 (2d
Cir. 2006). Summary judgment is warranted only upon a showing “that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). We agree with the District Court that the underlying dispute in this case “fit[s] into the
classic definition of a jurisdictional dispute,” J.A. 226 (quoting Tishman Constr. Corp. v. Muccioli, No.
07 Civ. 0888 (JGK), 2008 WL 426229, at *3 (S.D.N.Y. Feb. 15, 2008) (internal quotation marks
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omitted) (brackets omitted)), because it concerns the competing claims of two unions seeking to
perform the same work for an employer. As the Supreme Court has explained, a jurisdictional
dispute, unlike other disputes involving breach of a collective bargaining agreement, is “between two
or more groups of employees over which is entitled to do certain work for an employer.” N.L.R.B.
v. Radio & Television Broad. Eng’rs Union, 364 U.S. 573, 579 (1961). In a jurisdictional dispute, “the
employer has been placed in a situation where he finds it impossible to secure the benefits of
stability from either of [the collective bargaining agreements], not because he refuses to satisfy the
unions, but because the situation is such that he cannot satisfy them.” Id. at 582. As the District
Court aptly stated, an employer involved in a jurisdictional dispute is “caught in the middle” of “a
disagreement between two unions over the performance of work” and “has little preference for who
completes the work ‘if the other will just let him alone.’” J.A. 226 (quoting Radio & Television Broad.
Eng’rs Union, 364 U.S. at 579).
The Laborers Union’s efforts to characterize the dispute as either one of “work
preservation” or representational rights are unavailing. First, it did not establish a claim for work
preservation because it failed to present any evidence that it had ever performed caisson work for
McKinney when the job called for the use of steel pipes. See Int’l Ass’n of Machinists & Aerospace
Workers, District 190, Local Lodge 1414, 344 N.L.R.B. 1018, 1020 (2005) (characterizing a claim as one
of “work preservation” where evidence demonstrated that members of a union had “historically
performed” a particular type of work). Indeed, while the Laborers Union adduced no evidence on
the subject, petitioners presented an affidavit from McKinney’s District Manager stating that “[f]or
at least 30 years in Western New York in situations where a pipe needs to be used when drilling a
caisson, McKinney has always assigned the disputed work to [the] [C]arpenters [Union].” J.A. 17
(Howe Aff. ¶ 12). Moreover, the record does not lend any support to the Laborers Union’s claim
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that,September 10, 2009 rather than being jurisdictional in nature, the underlying dispute actually
concerns its exercise of previously recognized representation rights to perform a certain type of
caisson work.
Finally, we reject the Laborers Union’s argument that an arbitrator, rather than the District
Court, should decide whether the dispute is “jurisdictional” and therefore not subject to arbitration
under the CBA. The Supreme Court has held that “the question of arbitrability—whether a
collective-bargaining agreement creates a duty for the parties to arbitrate the particular grievance—is
undeniably an issue for judicial determination.” AT&T Techs. Inc. v. Commc’ns Workers of Am., 475
U.S. 643, 649 (1986). Based on this principle, the Supreme Court has explained that “[u]nless the
parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to
arbitrate is to be decided by the court, not the arbitrator.” Id. (emphasis added); see also John Wiley &
Sons, Inc. v. Livingston, 376 U.S. 543, 546-47 (1964) (holding that, because the duty to arbitrate is “of
contractual origin, a compulsory submission to arbitration cannot precede judicial determination
that the collective bargaining agreement does in fact create such a duty”). In the instant case, the
Laborers Union points to no language in the CBA—and we see none—indicating that the parties
clearly and unmistakably agreed to settle disputes of arbitrability through arbitration.
CONCLUSION
For reasons stated above, the August 21, 2008 judgment of the District Court is
AFFIRMED.
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