Lippert Tile Co. v. International Union of Bricklayers & Allied Craftsmen

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2658
LIPPERT TILE COMPANY, INC., et al.,
Plaintiffs-Appellants,
v.
INTERNATIONAL UNION OF
BRICKLAYERS AND ALLIED CRAFTSMEN,
DISTRICT COUNCIL OF WISCONSIN AND
ITS LOCAL 5,
Defendant-Appellee.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 11-cv-00412 — Lynn Adelman, Judge.
ARGUED JANUARY 23, 2013 — DECIDED AUGUST 1, 2013
Before POSNER and WILLIAMS, Circuit Judges and NORGLE,
District Judge.*
*
The Honorable Charles R. Norgle of the United States District Court for
the Northern District of Illinois, Eastern Division, sitting by designation.
2 No. 12-2658
WILLIAMS, Circuit Judge. Brothers Les and Jeffrey Lippert
own a tile installation business that employs union workers.
Some of their customers require or prefer that union workers
be employed for tile installation projects, but others prefer non-
union labor because they can be cheaper. So in 2004 the
brothers created a new tile installation company that employed
non-union workers solely to serve this market. Pursuant to the
governing collective bargaining agreement, the union filed a
grievance with the joint arbitration committee (“JAC”), seeking
union benefits for the non-union tile installers working for the
new company. After the JAC granted this relief, the companies
petitioned to vacate the award in federal district court, arguing
that the new company should not have been bound by the
arbitration award because it was not a party to the collective
bargaining agreement. However, the district court granted the
union’s motion to enforce the award on summary judgment,
finding that the nominally new company could be treated as
one and the same with the old company for purposes of the
agreement under the “single employer” doctrine. The compa-
nies appealed.
The companies first argue that the arbitration award is
unenforceable because the National Labor Relations Board has
never found that the non-union laborers are in the same
bargaining unit as the union laborers. They maintain that such
a finding is required to determine whether disputes concerning
the non-union workers are subject to arbitration under the
collective bargaining agreement. We do not resolve this issue
because the companies waived this argument by failing to
present it to the JAC. The companies next challenge the district
court’s finding that they are a “single employer,” but we agree
No. 12-2658 3
with the district court that the companies, which are centrally
operated by the same entity, are one and the same for purposes
of arbitrability under the contract. Finally, they assert that the
JAC was tainted because the union representative who filed the
grievance also sat on the JAC, but nothing in the contract
forbids this practice. Therefore, we affirm.
I. BACKGROUND
The following facts are undisputed. Brothers Les and Jeff
Lippert established Lippert Tile Company, Inc. (“Lippert
Tile”), a floor tile installation company, in 2000. Lippert Tile
services customers in the four-county Greater Milwaukee area.
The Bricklayers and Allied Craftsmen, District Council of
Wisconsin and its Local 5 (collectively, the “union”) represent
the tile installation workers of Lippert Tile. The governing
collective bargaining agreement (“CBA”) between the union
and Lippert Tile provided for certain benefits and wages for
the employees and prohibited Lippert Tile from “sublet[ting],
assign[ing] or transfer[ring] any work covered by this Agree-
ment to be performed at the site of a construction project to
any person, firm or corporation except where the Employer
signifies and agrees in writing to be bound by the full terms of
this Agreement and complies with all of the terms and condi-
tions of this Agreement.” The CBA also provided for the
creation of a joint arbitration committee, consisting of “three (3)
Employers and three (3) Representatives of the Union for the
purpose of deciding disputes, which may arise in connection
with the application of this agreement.” (In the case of a tie, the
CBA provided for referral to the Wisconsin Employment
Relations Commission for resolution.) The CBA added, “In the
event an Employer or the Union does not comply with the
4 No. 12-2658
Award of the arbitrator, the other party shall have the right to
use all legal and economic recourse.”
Lippert Tile’s market for tile installation work includes
general contractors subject to their own collective bargaining
agreements, project owners having or wanting to use
union-represented tile contractors, and government-regulated
entities tending to use union labor due to prevailing wage
regulations (the “union market“). Over the last 10 years,
however, this market has been declining, and more customers
in the region have sought non-union tile installers, generally
because they are 25% to 45% cheaper (the “non-union mar-
ket“). Because the Lippert brothers believed it was futile for
Lippert Tile to try and compete in this growing non-union
market, the brothers in 2004 created a new tile installation
company, DeanAlan, that would only use non-union workers
and compete only in the non-union tile installation market for
the same four counties. (The creation of a non-union company
for this purpose is known as “double-breasting.”) They also
created the Lippert Group, a corporate entity that would
provide management services to both tile installation compa-
nies. Subsequently, Lippert Tile continued providing tile
installation services to the union market, while DeanAlan
provided tile installation services to the non-union market in
the same area.
All three companies—Lippert Tile, DeanAlan, and the
Lippert Group—lease office and warehouse space in the same
building which is owned by the Lippert brothers. DeanAlan
also rents trucks from, and orders its supplies through, Lippert
Tile. The Lippert Group provides administrative services for
the other two companies, maintaining business records,
No. 12-2658 5
processing payroll, handling billing, and managing bank
accounts. The Lippert Group also supplies both companies
with office and warehouse staff, including salesmen and
estimators, who decide which company will bid on a project
and how much to bid. At the same time, the companies do not
share space within the building and have separate lease
arrangements (though with the same owners). They do not
share equipment. They have different corporate officers,
separate bank accounts, separate lines of credit, and separate
insurance programs. And because the whole point of creating
DeanAlan was to serve the non-union market with non-union
labor, the companies naturally have separate employees and
separate customers.
In 2010, the union director, Jeffrey Leckwee, discovered that
DeanAlan had been created to perform non-union tile installa-
tion work in the same region, and filed a grievance against the
three companies with the JAC. He alleged that this setup
violated the CBA’s assignment provision because it essentially
assigned Lippert Tile’s work to DeanAlan workers without
giving DeanAlan workers the same union benefits. The
companies argued as a threshold matter that the grievance was
not arbitrable because DeanAlan and the Lippert Group were
not parties to the CBA. The union responded that all three
companies should essentially be considered a “single em-
ployer,” i.e., that DeanAlan and the Lippert Group were the
same entity as Lippert Tile, and that all three were therefore
bound by the arbitrability provisions of the CBA. The compa-
nies also raised a host of procedural objections, including the
fact that Leckwee himself sat on the six-member JAC, which
allegedly biased the JAC against the companies. At no point,
6 No. 12-2658
however, did the companies argue to the JAC that the dispute
was not arbitrable because the non-union workers were not in
the same bargaining unit as the union workers covered by the
CBA. Nor does any party suggest that they were not given
ample opportunities to present arguments before the JAC.
In March 2011, the JAC upheld the grievance and adopted
the union’s requested decision and award. Without further
explanation, the JAC found that “Lippert Tile, The Lippert
Group and DeanAlan are a single employer and that the
Agreement was violated by the failure of Lippert to apply the
terms and conditions of the Agreement to DeanAlan.” It did
not say anything about whether the DeanAlan workers were
in the same bargaining unit. It ordered that DeanAlan workers
be made whole for work done since June 1, 2010, that the union
be made whole for lost dues, and that union benefits be
provided to DeanAlan workers from that point forward.
The companies together filed a petition with the federal
district court to vacate the JAC award, and the union re-
sponded by asking the court to enforce it, in the form of a
motion for summary judgment. The companies raised the same
arguments they made before the JAC, except this time they
argued for the first time that the dispute was not arbitrable by
the JAC because the aggrieved DeanAlan workers were not
part of the same bargaining unit as the union workers covered
by the CBA. The district court granted the union’s motion for
summary judgment and ordered that the award be enforced.
First, the court found that the only issue which it could decide
de novo was the “single employer” issue, because that issue
went to whether the dispute was properly subject to JAC
arbitration under the CBA, and there was no “clear[] and
No. 12-2658 7
unmistakabl[e]“ agreement by the parties (e.g., nothing in the
CBA suggesting) that only the JAC could make that threshold
determination. On that issue, it agreed with the JAC that the
companies were essentially a “single employer” and so the
dispute was arbitrable. Second, the court appeared to agree
with the companies that the bargaining unit issue had to be
resolved before the award could issue, but it did not view it as
an arbitrability question. As a result, the court declined to
decide it de novo, found that the JAC had implicitly decided
that the DeanAlan workers were in the same bargaining unit
as the union workers, and deferred to that decision because no
decision from the National Labor Relations Board (“NLRB”)
ever suggested otherwise. Third, the court rejected the compa-
nies’ argument that Leckwee’s presence on the JAC invalidated
the award, because all the CBA required was balanced
employer-union representation and it was undisputed that the
condition was met. Last, the court summarily rejected the
companies’ remaining procedural objections and arguments on
the merits, according great deference to the JAC’s resolution of
those issues in the union’s favor. The companies appealed.
II. ANALYSIS
Because this appeal challenges the district court’s
enforcement of a JAC award issued pursuant to a CBA, a brief
review of our limited jurisdiction is in order. Section 301 of the
Labor-Management Relations Act (“LMRA”) provides for
federal subject-matter jurisdiction over “[s]uits for violation of
contracts between an employer and a labor organization” (such
as collective bargaining agreements), “without respect to the
amount in controversy or without regard to the citizenship of
the parties … .” 29 U.S.C. § 185(a). As the Supreme Court has
8 No. 12-2658
explained, this provision provides federal courts jurisdiction to
enforce “final and binding” arbitration awards issued pursuant
to a CBA. Gen. Drivers v. Riss & Co., 372 U.S. 517, 519 (1963).
However, given that Section 301 essentially limits the federal
court’s jurisdiction to applying the terms of a CBA, when a
CBA provides for the submission of contractual disputes to an
arbitrator, the court “is confined to ascertaining whether the
party seeking arbitration is making a claim which on its face is
governed by the contract.” United Steelworkers v. Am. Mfg. Co.,
363 U.S. 564, 568 (1960). “[T]he judicial inquiry under s 301
must be strictly confined to the question whether the reluctant
party did agree to arbitrate the grievance or did agree to give
the arbitrator power to make the award he made.” United
Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960).
In other words, “We are responsible only for the question of
arbitrability.” United Steel v. TriMas Corp., 531 F.3d 531, 535
(7th Cir. 2008). Consequently, “a court is not to rule on the
potential merits of the underlying claims[,] … even if it appears
to the court to be frivolous.” AT&T Techs., Inc. v. Commc’ns
Workers of Am., 475 U.S. 643, 649-50 (1986); see also TriMas Corp.,
531 F.3d at 536 (“If the parties have in fact agreed to arbitrate
their dispute, then they have bargained for the arbitrator’s
interpretation of their contract—not ours.”).
A. Bargaining Unit Argument Waived Because Not
Raised in Arbitration
The companies first argue that the dispute was not
arbitrable under the CBA because no threshold finding had
been made that the DeanAlan non-union workers were in the
same bargaining unit as the Lippert Tile union workers. As
No. 12-2658 9
they point out, other circuits have held that such a finding (in
addition to the “single employer” finding, discussed separately
infra) is a prerequisite for applying the CBA’s arbitration
provisions to non-contractual-party entities like DeanAlan and
the Lippert Group. See So. Cal. Painters v. Rodin & Co., Inc., 558
F.3d 1028, 1034 (9th Cir. 2009); Stardyne, Inc. v. NLRB, 41 F.3d
141, 152 n. 11 (3d Cir. 1994); Amalgamated Lithographers v.
Stearns & Beale, Inc., 812 F.2d 763, 769 (2d Cir. 1987); but cf.
Moriarty v. Svec, 164 F.3d 323, 334 (7th Cir. 1998) (rejecting this
argument in ERISA context). The companies furthermore
contend that only the NLRB may make such a bargaining-unit
finding. See Local 343 v. Nor-Cal Plumbing, 48 F.3d 1465, 1470-71
(9th Cir. 1994); but see Brown v. Sandimo Materials, 250 F.3d 120,
129 (2d Cir. 2001); Trs. of Colo. Statewide Iron Workers v. A&P
Steel, Inc., 812 F.2d 1518, 1526-27 (10th Cir. 1987); Carpenters
Local Union No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489, 514-
17 (5th Cir. 1982). The companies conclude that if the bargain-
ing unit issue were appropriate for judicial determination, we
should resolve it by concluding that the DeanAlan workers
were not in the same bargaining unit as the union workers.
We agree with the union, however, that the companies
waived all aspects of this bargaining unit argument, because
they failed to raise it in any form before the JAC. “The failure
to pose an available argument to the arbitrator waives that
argument in collateral proceedings to enforce or vacate the
arbitration award.” Ganton Techs., Inc. v. UAW, 358 F.3d 459,
462 (7th Cir. 2004). “Arbitration would not be an efficient and
cost-effective method of resolving labor disputes if federal
courts indulged late arguments that were not brought to the
attention of the arbitrator below.” Id.; see also Nat’l Wrecking Co.
10 No. 12-2658
v. Teamsters Local 731, 990 F.2d 957, 960 (7th Cir. 1993) (“Failure
to present an issue before an arbitrator waives the issue in an
enforcement proceeding.”). The companies “cannot stand by
during arbitration, withholding certain arguments, then, upon
losing the arbitration, raise such arguments in federal court.
We will not tolerate such sandbagging.” Id.; see also United Food
& Commercial Workers Local 100A v. John Hofmeister & Son, Inc.,
950 F.2d 1340, 1344 (7th Cir. 1991) (“If parties were allowed to
withhold information during arbitration, and then use it to
sandbag their opponents during enforcement proceedings,
much of the efficiency and usefulness of arbitration would be
lost.”). There is also no suggestion that the companies had no
opportunity to present such an argument, and indeed, they did
not hesitate to present a host of other arbitrability and proce-
dural arguments to the JAC.
This waiver rule applies equally to questions concerning
arbitrability. See Environ. Barrier Co., LLC v. Slurry Sys., Inc., 540
F.3d 598, 607 (7th Cir. 2008) (“[E]ven though the ordinary rule
is that the question whether an agreement to arbitrate exists is
one for the court, the right to a judicial determination of
arbitrability is, like many rights, one that can be waived [in
arbitration].” (citations omitted)). Of course, the companies
insist that the bargaining unit issue can only be determined by
the NLRB, not the JAC (or any other tribunal). But assuming
this is true, the companies should have then asked the JAC to
stay the proceedings pending an NLRB determination. If the
stay were granted and the NLRB ruled in the companies’ favor,
the arbitration process would have ended without wasting
time on other issues. At the very least, the companies could
have reserved an objection to arbitrability on the bargaining
No. 12-2658 11
unit issue, which might have caused the union to immediately
go to the NLRB so that such a threshold issue could be effi-
ciently resolved at the outset. See, e.g., id. at 606 (“There is not
a hint in the record that SSI ever called this issue to the arbitra-
tor’s attention or sought to enjoin the arbitration on the ground
that there was no agreement to arbitrate… . Anyone who
wants to object to arbitrability is entitled to make her position
known to the arbitrator and the other party; the other party
may then, if it wishes, respond with a petition for an order to
compel arbitration… and obtain a judicial determination on
arbitrability.”). For these reasons, we have repeatedly disap-
proved of the practice of remaining silent on an arbitrability
issue during arbitration proceedings, only to play the
arbitrability card in federal court after the party loses. See, e.g.,
Roughneck Concrete Drilling & Sawing Co. v. Plumbers’ Pension
Fund, 640 F.3d 761, 766-67 (7th Cir. 2011) (criticizing this
practice as a “heads I win, tails you lose” approach, and noting
that a party “could have consented to have Judge Judy resolve
the dispute, and would have been bound even though the
collective bargaining agreement did not authorize her to
resolve disputes”); Environ. Barrier Co., LLC, 540 F.3d at 606(“Only after the arbitrator issued an award unfavorable to SSI
and the case wound up in court did SSI raise an objection to the
arbitrator’s authority to decide the dispute… . This is not a
tactic we can accept, for sound policy reasons. It is terribly
wasteful of the arbitrator’s time, the parties’ time, and the
court’s time… . [K]eeping the arbitrability card close to the
chest would allow a party like SSI to take a wait-and-see
approach: if it had liked [the arbitrator’s] decision, it would
have remained silent, but since it did not, it is now complaining
12 No. 12-2658
about arbitrability.”); Slaney v. Int’l Amateur Athletic Fed’n, 244
F.3d 580, 591 (7th Cir. 2001) (“Slaney had the opportunity to
show that she had never agreed to arbitrate the dispute when
she was notified of the arbitration, but she let that opportunity
pass. Slaney could not ‘sit back and allow the arbitration to go
forward, and only after it was all done … say: oh by the way,
we never agreed to the arbitration clause. That is a tactic that
the law of arbitration, with its commitment to speed, will not
tolerate.’” (quoting Comprehensive Accounting Corp. v. Rudell,
760 F.2d 138, 140 (7th Cir. 1985))); AGCO Corp. v. Anglin, 216
F.3d 589, 593 (7th Cir. 2000) (“If a party willingly and without
reservation allows an issue to be submitted to arbitration, he
cannot await the outcome and then later argue that the
arbitrator lacked authority to decide the matter.”); Jones Dairy
Farm v. Local No. P-1236, 760 F.2d 173, 175 (7th Cir. 1985) (“[I]f
a party voluntarily and unreservedly submits an issue to
arbitration, he cannot later argue that the arbitrator had no
authority to resolve it.”).
Although the companies did at least bring the issue of
arbitrability to the attention of the JAC on other grounds,
unlike the parties in some of the cited cases who failed to raise
the issue of arbitrability at all, we see no reason why the same
efficiency considerations do not also apply when a party raises
certain arbitrability issues before the arbitrator but not others.
Cf. Ganton Techs., Inc., 358 F.3d at 462 (rejecting argument that
“to preserve an argument for presentation in an enforcement
proceeding, a party need only present the information that
underlies the argument at the arbitration proceeding”). The
JAC should have been given a meaningful opportunity to
consider whether to hold off on an award pending an NLRB
No. 12-2658 13
determination on the bargaining unit issue. So we disagree
with the district court’s suggestion that the JAC implicitly
decided the issue; the JAC award made no mention of it. The
companies did not give the JAC that opportunity, and we find
the bargaining unit issue waived.
B. Dispute Arbitrable Because Companies Were “Single
Employer”
Second, the companies challenge the district court’s finding
that the dispute was arbitrable because all three companies
should be considered a “single employer,” thereby binding
DeanAlan and the Lippert Group to the CBA’s arbitrability
provisions even though they were not signatories to the CBA.
Given that arbitrability is essentially a question of contract
interpretation, we review the district court’s determination of
arbitrability de novo. Int’l Bhd. of Elec. Workers, Local 21 v. Ill.
Bell Tel. Co., 491 F.3d 685, 687 (7th Cir. 2007).
“The single employer doctrine holds that when two entities
are sufficiently integrated, they will be treated as a single entity
for certain purposes.” Moriarty, 164 F.3d at 332. “To determine
whether two nominally separate business entities are a single
employer, one must examine four factors set out by the
Supreme Court: (1) interrelation of operations, (2) common
management, (3) centralized control of labor relations, and (4)
common ownership.” Trs. of Pension, Welfare, and Vacation
Fringe Benefit Funds of IBEW Local 701 v. Favia Elec. Co., Inc., 995
F.2d 785, 788 (7th Cir. 1993) (citing South Prairie Constr. Co. v.
Local No. 627, 425 U.S. 800, 803 (1976)). “No one of these factors
is conclusive; instead, the decisionmaker must weigh the
totality of the circumstances.” Id. “‘Ultimately, single employer
14 No. 12-2658
status… is characterized by the absence of an arm’s length
relationship found among unintegrated companies.’” Lihli
Fashions Corp., Inc. v. NLRB, 80 F.3d 743, 747 (2d Cir. 1996)
(citation omitted).
For essentially the same reasons set forth by the district
court, we conclude that the three companies are a “single
employer” for purposes of enforcing the arbitration provisions
of the CBA. First, we agree with the companies that when
analyzing the interrelation of operations, it is the “day-to-day
operational matters” that are the most relevant. Yet it is for that
very reason that this factor cuts against them. The same entity,
the Lippert Group, maintains business records, processes
payroll, handles billing, and manages bank accounts for both
companies, and these shared, daily operations are critical to the
smooth functioning of the project-by-project nature of both
companies’ work. More importantly, the Lippert Group
personnel make the critical decision whether Lippert Tile or
DeanAlan should make a bid on a particular project, and if so,
what to bid, as if all three companies were part of the same
organizational chart. The companies do not share the exact
same space but are housed in the same warehouse, making
shared supervision of both companies easier. The companies
like to emphasize that they had different tile installers serving
different markets, but they still served the same geographic
area and performed the exact same labor. So on balance we
find the operations to be extensively interrelated if not inter-
twined.
Second, though Lippert Tile and DeanAlan technically have
different corporate officers, the “common management” factor
looks at “actual or active control, as distinguished from
No. 12-2658 15
potential control, over the other’s day-to-day operations,”
Cimato Brothers, Inc., 352 NLRB 797, 799 (2008), and certainly
not formal job titles. See, e.g., id. (disregarding fact that some-
one was “president” when he had no actual management
responsibility). Because the same entity not only operates, but
also controls, the bidding process and administrative tasks for
both companies, the “common management” factor weighs in
favor of a single employer finding. To the extent that any
actual managerial functions are being performed separately,
the companies do not point us to any examples. Third, the
companies do not dispute that there was common ownership.
As for the last factor, we find that there was centralized
control of labor relations because it was the Lippert brothers’
decision in the first place to create a new company that would
give room to a new, non-union labor system solely to serve the
non-union market. See, e.g., Local 343, 48 F.3d at 1471. So while
it is not entirely clear who was responsible for day-to-day labor
relations decisions like setting wages (for the non-union
workers), hiring, or firing, the overall parameters were set in
place by the Lippert brothers when they decided to create
separate union and non-union entities. The companies’ only
argument on this factor is that centralized control of labor
relations is not present when one of the companies has no
employees, citing Cimato Brothers, 352 NLRB at 799 (“Central-
ized control of labor relations is not present here because
Cimato 1 had no statutory employees during the relevant time
period.”), and they point out that DeanAlan technically did not
have employees, only subcontractors. But we do not see how
Cimato Brothers helps them, because it goes on to say that this
factor “is given less weight where, as in this case, one of the
16 No. 12-2658
companies has no employees.” Id. at 799 n.9. So even if this
factor favors the companies, it only does so slightly and does
not overcome the other factors which favor the union.
In sum, we agree with the district court’s conclusion that,
“for all practical purposes, the Companies function as a single
entity.” While the distinction between the “union” and “non-
union” market is useful, the bottom line reason Lippert Group
and DeanAlan were created was to increase the Lippert
brothers’ share of the tile installation market in the four-county
Greater Milwaukee area by providing the same service at
lower prices, just as any single company might attempt to
capture a greater share of the market by reducing prices. Of
course, we express no opinion whatsoever on whether this
type of double-breasting practice was a violation of the CBA,
because that was a merits determination by the JAC. And we
certainly express no opinion as to whether this practice is good
or bad. But solely for purposes of deciding whether the JAC
had the power to decide whether their double-breasting practice
was a violation of the CBA and issue a binding arbitration
award, we find, under the “single employer” doctrine, that it
did.
C. Leckwee’s Presence on JAC Did Not Violate CBA
Last, the companies argue that the award should be vacated
because Leckwee, the individual who filed the union griev-
ance, sat on the same JAC that decided the grievance. They
contend that in reviewing arbitration awards pursuant to the
jurisdictional grant of Section 301 of the LMRA, federal courts
are permitted to review awards for fundamental fairness. See,
e.g., Carpenters 46 N. Cal. Counties Conf. Bd. v. Zcon Builders, 96
No. 12-2658 17
F.3d 410, 413 (9th Cir. 1996). And they suggest that we should
review labor arbitration awards for “evident partiality” just as
we do in our review of arbitration awards under the Federal
Arbitration Act (“FAA”). But we already explored at length,
and rejected, this type of argument in Merryman Excavation, Inc.
v. International Union of Operating Engineers, Local 150, 639 F.3d
286, 289-93 (7th Cir. 2011).
Review of labor arbitration awards under Section 301 of the
LMRA is different from the review of arbitration awards under
the FAA, even if they resemble each other in some respects. See
Merryman, 639 F.3d at 290 (“A failure to comply with a joint
committee award is a breach of a federal labor contract subject
to section 301 jurisdiction—not an FAA action.”). Unlike in the
FAA, see 9 U.S.C. § 10(a)(2) (“evident partiality” standard),
“evident partiality” is not inherently built into the Section 301
review mechanism. See Merryman, 639 F.3d at 292-93. We, of
course, agree with the companies that labor arbitration awards
are subject to Section 301 review (a basic proposition to which
their brief devotes several pages). The question is what that
review includes, and Section 301 review simply does not
include a free-floating procedural fairness standard absent a
showing that some provision of the CBA was violated. See 29
U.S.C. § 185(a) (providing federal subject-matter jurisdiction
over “[s]uits for violation of contracts between an employer
and a labor organization”).
And we do not find any such violation of the CBA. To the
extent the CBA sought to deal with potential bias, all it
required was that the panel consist of three employer represen-
tatives and three union representatives. So long as this equal
18 No. 12-2658
representation requirement is met, nothing in the CBA prohibi-
ted the filer of a grievance from sitting on the JAC. See, e.g.,
Merryman, 639 F.3d at 292 (“Merryman agreed that disputes
would be resolved in the first instance not by a neutral arbitra-
tor but by a committee composed of an equal number of
employer and union representatives. The agreement does not
require the representatives on the joint committee to act like
detached magistrates or neutral arbitrators. Rather, we rely on
the balanced voting membership of the joint committee to
provide fairness to the interested parties.”). It is undisputed
that the JAC consisted of three employer representatives and
three union representatives (one of which was Leckwee). That
resolves any argument concerning representation. See, e.g., id.
at 292-93 (rejecting bias argument simply because the contract’s
equal representation requirement was met).
We acknowledge that it might seem unusual (at least to
those outside the world of labor arbitration) to allow the filer
of the grievance to sit on the panel that adjudicates it. If so, it
is up to negotiating parties to make sure that a CBA prohibits
it. Cf. Baravati v. Josephthal, Lyon & Ross, Inc., 28 F.3d 704, 709
(7th Cir. 1994) (“Indeed, short of authorizing trial by battle or
ordeal or, more doubtfully, by a panel of three monkeys,
parties can stipulate to whatever procedures they want to
govern the arbitration of their disputes; parties are as free to
specify idiosyncratic terms of arbitration as they are to specify
any other terms in their contract.”). It is not for the courts to
rewrite contracts.
III. CONCLUSION
For the above-stated reasons, we AFFIRM.