The opinion of the court was delivered by: Bua, District Judge.
Plaintiff, International Union of Operating Engineers, Local
150, AFL-CIO ("Local 150"), brings this action against a joint
venture composed of three construction companies: Kenny
Construction Company, Illinois Construction Corp. and Thomas M.
Madden Co., doing business as K.I.M., a joint venture
(collectively referred to as "K.I.M."). Local 150 seeks to set
aside an arbitration award pursuant to the Labor Management
Relations Act of 1947, Title III, Section 301(a), 29 U.S.C. § 185(a)
as amended. Jurisdiction in this Court is based on Title
III, Section (c)(2) of the Labor Management Relations Act of
1947, 29 U.S.C. § 185(c)(2).
Presently before this Court are Local 150's and K.I.M.'s
cross-motions for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure. For the reasons stated below,
K.I.M.'s motion for summary judgment is granted and Local 150's
motion is denied.
Both parties concede there are no genuine issues of material
fact. Beginning in the late 1970s, K.I.M. was awarded a contract
by the U.S. Army Corps of Engineers to renovate the Dresden Lock
and Dam on the Illinois River in Morris, Illinois. The renovation
involved removing and replacing concrete surfaces as well as
painting and sandblasting various dam structures. In order to
remove and replace the concrete, K.I.M. employed tradesmen from
the following unions: defendant Local 150; Local Union 75,
Laborers; Local Union 1092, Carpenters and Millwrights; and Local
Union 444, Ironworkers. As a component of K.I.M.'s employment
contract with the unions, all parties agreed to be bound by the
terms of a master collective bargaining agreement known as the
Heavy, Highway and Underground Agreement ("Master Agreement").
However, since K.I.M. does not sandblast or paint, it
subcontracted that work to Joanna Painting Company ("Joanna").
Joanna employed Local 33, Painters ("Local 33") to perform the
sandblasting and painting. Although Joanna has a collective
bargaining agreement with Local 33, Joanna does not have such an
agreement with the unions signatory to the Master Agreement.
Locals 150 and 33, however, through their respective
international unions, are parties to the "Plan for the Settlement
of Jurisdictional Disputes in the Construction Industry."*fn1
On May 19, 1982, Joanna's Local 33 employees began working at
the Dresden job site. These employees utilized an air compressor
to perform sandblasting pursuant to Joanna's subcontract. On that
day, a Local 150 employee complained to K.I.M.'s project manager
that a Local 33 employee
had been operating an air compressor. Local 150's Business
Manager thereafter wrote to K.I.M. and charged that K.I.M. had
violated the Master Agreement by subcontracting work claimed in
the Master Agreement to a nonsignatory contractor, Joanna, who
employed non-Local 150 members. K.I.M. then requested Joanna to
reassign the compressor work to Local 150 members. On July 2,
1982, Local 33 responded to Joanna and K.I.M. by declaring that
Local 33 would strike at the Dresden project site "if any part of
[their] jurisdiction [was] taken away. . . ." Defendants'
Memorandum, filed October 11, 1983, at 5.
Because of Local 150's continuing demands for assignment of
Joanna's compressor work, and Local 33's refusal to relinquish
that work and threatened strike, K.I.M. filed an unfair labor
practice charge against Local 33 with the National Labor
Relations Board ("NLRB") on July 6, 1982. Specifically, K.I.M.
charged that Local 33 violated sections 8(b)(4)(i) and (ii)(D) of
the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(i) and
(ii)(D), by coercing K.I.M. to resolve the unions' conflicting
jurisdictional claims in Local 33's favor. A NLRB hearing date
was set. Local 150 was named a party in interest in the NLRB's
Notice of Hearing.
A. Proceedings Before the National Labor Relations Board
Prior to the hearing date, Local 150 advised the NLRB that it
was making no jurisdictional claim to the work of operating the
air compressor in question. Instead, Local 150 asserted that its
sole claim was that K.I.M. had violated the subcontracting clause
of the Master Agreement when it subcontracted the sandblasting to
Joanna who was not signatory to the Master Agreement. Local 150
stated that it intended to pursue its claim as a subcontracting
grievance and to seek contract damages.
Relying upon Local 150's work disclaimer, the acting NLRB
Regional Director issued an order, over K.I.M.'s objections, that
Local 150 "disclaimed" the compressor work as the NLRB defines
that term. The Regional Director withdrew the Notice of Hearing
and dismissed K.I.M.'s charge, thereby precluding the NLRB from
rendering a decision on the merits of the dispute. K.I.M.
objected to the Regional Director's action and appealed the
dismissal to the NLRB's General Counsel, who later denied
K.I.M.'s appeal and motion for reconsideration. In response to
the jurisdictional issue, the General Counsel summarily noted
that Local 150 was merely attempting to enforce a subcontracting
claim against K.I.M. and that Local 150 had disclaimed any
interest in the disputed work and had not reasserted its claim to
B. Grievance and Arbitration
After the NLRB dismissed K.I.M.'s charge, Local 150 filed a
grievance before the Joint Grievance Committee.*fn2
Specifically, Local 150 alleged that K.I.M. violated Article I,
Section 4 of the Master Agreement by subcontracting work to
Joanna because Joanna was not signatory to the Master Agreement.
The Joint Grievance Committee, however, was unable to resolve the
matter by a majority vote. The dispute was then submitted to a
neutral arbitrator for resolution. Stephen B. Goldberg was
mutually selected by the parties to act as arbitrator.
On March 9, 1983, a hearing was held before Arbitrator
Goldberg. The central issue determined by Goldberg was whether
Local 150's grievance was arbitrable pursuant to the Master
Agreement. Two provisions of the Master Agreement were considered
by the arbitrator: (1) Article XIII, Section 1, of the Master
Agreement which provides for arbitration to settle any claim or
dispute involving an interpretation or application of the Master
Agreement, and (2) Article XIII, Section 2, of the Master
Agreement which provides for resolution of jurisdictional
disputes between union locals before a jurisdictional dispute
board. At the arbitration hearing, K.I.M. asserted
that the grievance was not arbitrable because it was a
jurisdictional dispute under section 2 and not a dispute under
section 1. Local 150, however, argued that no jurisdictional
dispute existed and that the NLRB had conclusively so decided ...