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INTERN. UNION OF OPERATING ENG. v. KENNY CONST. CO.

March 29, 1984

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150, AFL-CIO, PLAINTIFF,
v.
KENNY CONSTRUCTION COMPANY, AN ILLINOIS CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Bua, District Judge.

MEMORANDUM ORDER

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.

I. FACTS

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

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 that work.

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 ...


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