Construction, Building Material, Ice & Coal, Laundry, Dry Cleaning, & Industrial Laundry & Dry Cleaning Drivers, Helpers, Warehousemen, Yardmen, Salesmen, & Allied Workers, Local 682 v. Bussen Quarries, Inc.

849 F.2d 1123

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 23, 1988
• Docket: No. 87-1431
• Status: Published

Opinions

McMILLIAN, Circuit Judge.

Construction Drivers Local Union 682 (hereinafter Local 682) appeals from a final judgment entered in the District Court for the Eastern District of Missouri dismissing its action to compel arbitration on the question of the status of owner-operator truck drivers. For reversal, Local Union 682 argues that the district court erred in (a) dismissing its complaint for lack of subject matter jurisdiction, and (b) denying its motion for summary judgment as moot. For the reasons discussed below, we affirm.

Local 682, a labor organization, and Bus-sen Quarries, Inc. (hereinafter Bussen), a Missouri corporation engaged in the quarrying and selling of limestone and sand, are parties to a collective bargaining agreement. The most recent collective bargaining agreement covers the March 15, 1984, to March 14, 1987, period. Under the terms of the agreement, Bussen recognizes Local 682 as the collective bargaining representative of its employees who are drivers and helpers. The agreement, however, does not apply to owner-operators when not rendering services as employees.¹

In January 1986 and pursuant to the mandatory grievance procedures of the agreement, three individuals, Richard J. Ducote, Wayne Edlen, and Greg Edlen, filed grievances protesting Bussen's failure to place them on the seniority list. Since the filing of their grievances, Bussen has refused to proceed to arbitration. Bussen asserts that because the three individuals own their tri-axle trucks and offer hauling services to Bussen, they are independent contractors, not employees. As independent operators they are not covered by the collective bargaining agreement. Thus, Bussen argues, because they are not employees, they have no standing to grieve.

On June 24, 1986, Local 682 filed this complaint against Bussen in federal district court seeking specific enforcement of the arbitration provisions of the collective bargaining agreement. Local 682 alleged that Bussen breached the collective bargaining agreement by declining to process grievances on behalf of the three individuals.

On March 3, 1987, the district court entered an order dismissing Local 682’s complaint for lack of jurisdiction and denying its motion of summary judgment as moot. Bussen’s cross-motion for summary judgment was also dismissed as moot. (Bussen has not cross-appealed from the dismissal of its summary judgment motion.) The district court held that the resolution of Local 682’s complaint required a determination of whether the owner-operators are employees of Bussen. The district court held that question of employee status is a representational issue which can be raised only before the National Labor Relations Board (hereinafter NLRB). Consequently, the district court dismissed Local 682’s complaint for lack of subject matter jurisdiction.

For reversal, Local 682 argues that its complaint seeking specific enforcement of the arbitration provisions is not a representational or labor law issue but rather an action to compel arbitration. Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964). Local 682 further argues that holding the three individuals are not covered by the terms of the collective bargaining agreement usurps the power of the arbitrator. Local 682 asserts similar arguments against arbitra-bility have been rejected. Ben Gutman Truck Service, Inc. v. Teamsters Local No. 600, 636 F.2d 255 (8th Cir.1980); see also Johnston-Tombigbee Manufacturing Co. v. Local No. 2462, United Brotherhood of Carpenters, 596 F.2d 126, 129 (5th Cir.1979); Los Angeles Paper Bag Co. v. Printing Specialties and Paper Products Union, 345 F.2d 757, 759 (9th Cir.1965). We reject Local 682’s contention.

Local 682 essentially asks this court to review a representational matter. Whether the grievances fall within the scope of the arbitration clause in the bargaining agreement requires a determination of whether the grievants are employees of Bussen. Such a determination, however, is a representational issue because § 9 of the National Labor Relations Act rests jurisdiction in the NLRB to determine questions of representation. 29 U.S.C. § 159(b) (1982); e.g. Morello v. Federal Barge Lines, Inc., 746 F.2d 1347, 1349-50 (8th Cir.1984). Thus, a representational issue can be raised only before the NLRB and falls within its exclusive or primary jurisdiction. Local Union 204, Etc. v. Iowa Electric Light and Power Company, 668 F.2d 413, 417 (8th Cir.1982) (Iowa Electric Light), see also Morello v. Federal Barge Lines, Inc., 746 F.2d at 1349-50 (the dispute over the status of individuals as employees or supervisors held a representational question).

Local 682’s attempt to have this court review the question of whether the three individuals are “employees” covered by the collective bargaining agreement is an attempt to obtain direct review of a representational matter. Iowa Electric Light, 668 F.2d at 416-419. A federal court does not have jurisdiction to review directly a representation issue. 29 U.S.C. § 159; e.g., Technicolor Government Services, Inc. v. NLRB, 739 F.2d 323 (8th Cir.1984); Iowa Electric Light, 668 F.2d at 417; Amalgamated Meat Cutters v. Allen, 423 F.2d 267 (8th Cir.1970). The district court did not err in dismissing Local 682’s complaint for lack of subject matter jurisdiction.

Accordingly, we affirm the order of the district court.

1 . Article IX, Section 2 of the 1984-1987 Agreement provides in part

It is understood and agreed that nothing herein shall apply when the following circumstances exist: ... (B) Where owner-drivers do not render their personal driving services in the status of employees.