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International Union of Operating Engineers v. Associated General Contractors of Illinois and Calhoun County Contracting Corp.

decided: April 26, 1988.

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION 965-965A-965B-965C-965RA, AN UNINCORPORATED ORGANIZATION, PLAINTIFF-APPELLEE,
v.
ASSOCIATED GENERAL CONTRACTORS OF ILLINOIS AND CALHOUN COUNTY CONTRACTING CORPORATION, AND HALVERSON CONSTRUCTION COMPANY, DEFENDANTS-APPELLANTS



Appeal from the United States District Court for the Central District of Illinois, Springfield Division. Nos. 85 C 3268 and 85 C 3269--Richard Mills, Judge.

Cummings, Wood, Jr., and Coffey, Circuit Judges.

Author: Wood

WOOD, JR., Circuit Judge.

This is a consolidated appeal of two cases that present the same issue: whether summary judgment compelling the defendants to submit the plaintiff's grievances to arbitration was appropriate. The defendants, Associated General Contractors of Illinois (AGC), Calhoun County Contracting Corp. (Calhoun), and Halverson Construction Co., Inc. (Halverson), argue that summary judgment was inappropriate because a genuine issue of material fact existed as to whether the defendants had recognized the plaintiff Union as the exclusive bargaining representative at the sites where the grievances allegedly arose. They also assert that the underlying representational dispute respecting the scope of the bargaining unit deprived the district court of subject matter jurisdiction. The plaintiff disputes these arguments and has cross-appealed from the district court's order denying attorneys' fees and costs. We affirm.

I. FACTUAL BACKGROUND

Because this is an appeal of a grant of summary judgment, we view the facts and reasonable inferences therefrom in the light most favorable to the nonmovant defendants. Ristoff v. United States, 839 F.2d 1242, 1243 (7th Cir. 1988).

The defendant AGC is an association of employers engaged in the building and construction industry in Illinois that represents certain member employers in collective bargaining with various labor organizations. The plaintiff Union is an unincorporated association that represents its member employees for purposes of collective bargaining with respect to wages, hours, and other terms and conditions of employment.

Defendant Calhoun is a member of AGC, which represents it in collective bargaining. Calhoun is a Delaware corporation engaged in the building and construction industry performing work on roads, bridges, and sewers. This work takes place at various job sites in Illinois. Calhoun uses heavy construction equipment, the repair and maintenance of which is sometimes performed at or near the construction site. The repair and maintenance work also may occur at Calhoun's permanent yard/shop adjacent to Calhoun's offices in Springfield. The Union, AGC, and Calhoun were parties to a collective bargaining agreement which was in effect from May 1, 1983 to April 30, 1985.

On June 25, 1984, Calhoun hired a mechanic helper to work in its permanent yard/shop. Calhoun did not obtain this employee through the referral procedures set forth in the agreement between the parties, and the company has not applied the terms of the agreement to this employee, who has worked exclusively at Calhoun's permanent yard/shop. On October 26, 1984, the Union submitted a grievance to AGC regarding Calhoun's failure to follow the Union referral procedure in hiring this employee.

Defendant Halverson is an Illinois corporation that is also engaged in the building and construction industry in Illinois, performing work at various construction sites in the state. It is a member of AGC; AGC represents the company in collective bargaining. Halverson uses heavy construction equipment which is sometimes repaired and maintained at or near the construction site. Prior to July, 1984, Halverson maintained a permanent yard/shop at a one-acre site in Springfield. At this permanent yard/shop, the company stored various pieces of heavy construction equipment. Halverson sometimes performed minor repair and maintenance on the equipment at the permanent yard/shop, and sometimes used the equipment to load and unload construction material. The Union, AGC, and Halverson were parties to a collective bargaining agreement which was in effect from May 1, 1983 to April 30, 1985.

In July, 1984, Halverson relocated its permanent yard/shop to a ten-acre site. On July 21, 1984, a Halverson supervisor operated a piece of heavy construction equipment, known as a cherry picker, at the old permanent facility. The supervisor used the cherry picker to load steel beams for movement to and storage at the new permanent facility. The Union filed a grievance regarding the company's use of a supervisor rather than a Union employee to perform this work. The company, which asserts that it does not recognize the Union at its permanent facilities, refused to arbitrate this grievance.

On April 11, 1985, the plaintiff Union filed two suits, one against AGC and Calhoun and the other against AGC and Halverson, to compel arbitration of the Union's grievances pursuant to the collective bargaining agreement.

II. DISCUSSION

A. Duty to ...


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