Local 513, International Union of Operating Engineers v. J.S. Alberici Construction Co.

736 F. Supp. 210, 1990 U.S. Dist. LEXIS 5492, 1990 WL 58790
CourtDistrict Court, E.D. Missouri
DecidedMay 7, 1990
DocketNo. 88-2482C(6)
StatusPublished
Cited by1 cases

This text of 736 F. Supp. 210 (Local 513, International Union of Operating Engineers v. J.S. Alberici Construction Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Local 513, International Union of Operating Engineers v. J.S. Alberici Construction Co., 736 F. Supp. 210, 1990 U.S. Dist. LEXIS 5492, 1990 WL 58790 (E.D. Mo. 1990).

Opinion

MEMORANDUM OPINION

GUNN, District Judge.

This case is currently before the Court on the stipulations and briefs of the parties. The Court having considered the pleadings, the documents in evidence, and the stipulations of the parties, and being fully advised in the premises, hereby makes the following findings of fact and conclusions of law, as required by Rule 52 of the Federal Rules of Civil Procedure.

I. FINDINGS OF FACT.

Plaintiff Local 513, International Union of Operating Engineers (“Local 513”) brings this action pursuant to Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, against J.S. Alberici Construction Co. (“Alberici”) to compel arbitration of a Local 513 grievance.

Local 513 is an unincorporated labor organization within the meaning of Section 301 of the LMRA and represents employees in industry affecting commerce. The union’s primary office is in St. Louis County, Missouri. Alberici is a corporation engaged in the construction business in Missouri and is an employer affecting commerce within the meaning of Section 301 of the LMRA. Local 513 and Alberici are parties to a Collective Bargaining Agreement (“the Agreement”) effective May 1, 1986 until April 30, 1989.

The Agreement, marked Defendant’s Exh. N, contains a provision at Article XIX, Section 4, which provides as follows:

Nothing contained in this Agreement shall be construed to prevent the right of any Employer to subcontract all or any part of work awarded to it. If, however, an Employer elects to subcontract out all or any part of such work, then, in that event, such Employer shall make adequate provision in the contract, Agreement or understanding with the subcontractors to be or become a signatory to this collective bargaining agreement and to recognize, abide by and be bound by all of the terms and provisions of this collective bargaining agreement. It is understood and agreed that this subcontractor clause requires said subcontractor to abide by and be bound by the terms and provisions of this collective bargaining agreement only for the period and on the project where the subcontractor relationship exists.

The Agreement also contains the following provision:

All grievances, disputes or claims (hereinafter called “grievances”) except jurisdictional disputes which may arise with respect to wages, hours or conditions of employment or the enforcement or interpretation of any of the terms of this Agreement are to be promptly processed and settled in accordance with the provisions of this Article.

Article XVII, Section 2. The parties do not contest the validity of the above two provisions, nor do they deny that they are bound by them. Similarly, the parties do not deny their agreement to arbitrate disputes not resolved through resort to the grievance procedure. The sole issue before the Court is whether the Local 513 grievance constitutes a jurisdictional dispute and is, therefore, not arbitrable under the Agreement.

On or around January 13, 1988 Alberici entered into a subcontract with Shield [212]*212Painting Company ("Shield”) to perform painting and sandblasting work on Lock and Dam No. 22 on the Mississippi River in Ralls County, Missouri. The subcontract between Alberici and Shield has been filed with the Court, marked plaintiffs exhibit 2, and made a part of the record herein.

In its contract with Shields, Alberici included the provision: “Subcontractor shall, to the extent permissible under federal law and any applicable state laws, comply with and be bound by such terms and conditions of labor agreements executed by or on behalf of Contractor as are applicable to the Subcontract work to be done hereunder, specifically including, without limitation, any provisions therein relating to the settlement of jurisdictional disputes and the determination of work assignments.” Subcontract, Exh. A, p. 2, If 10(a). Alberici has not, however, enforced the provision and, in fact, Shields has refused to become a signatory to, or otherwise be bound by, the Agreement between Alberici and Local 513. Thus, Local 513 urges, Alberici has violated its Agreement with Local 513 insofar as Alberici has failed to make “adequate provision” in its arrangement with Shields as contemplated by Article XIX, Section 4 of the parties’ Agreement.

Alberici argues in defense of compelled arbitration that Local 513’s grievance is not subject to arbitration because it constitutes a jurisdictional dispute.

II. CONCLUSIONS OF LAW.

Four principles guide the courts in determining whether to order arbitration of grievances filed under collective bargaining agreements. AT & T Technologies v. Communications Workers, 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1985). First, “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” AT & T, 475 U.S. at 648, 106 S.Ct. at 1418. Second, “whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties.” AT & T, 475 U.S. at 649, 106 S.Ct. at 1418. Third, “a court is not to rule on the potential merits of the underlying claim.” Id. Finally, “there is a presumption of arbitrability in the sense that ‘[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.’ ” AT & T, 475 U.S. at 650, 106 S.Ct. at 1419.

The Agreement between Alberici and Local 513 clearly provides that Alberici “shall make adequate provision in the contract, agreement or understanding with the subcontractors to be or become a signatory to this collective bargaining agreement and to recognize, abide by and be bound by all of the terms and provisions of this collective bargaining agreement.” (Emphasis added.) Whether or not one of the parties to the Agreement has adhered to this provision is, the Court concludes, an arbitrable issue.

Moreover, Alberici’s characterization of its dispute with Local 513 as “jurisdictional” is not well founded.

As a term of art in the labor context, “the term ‘jurisdictional’ is not a word of a single meaning.” Carey v. Westinghouse Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1963). There are essentially two types of jurisdictional disputes. In one, two unions assert “jurisdiction” over a particular type of work assignment. In the other, two unions vie for “jurisdiction” over a particular group of employees. Carey, 375 U.S. at 263, 84 S.Ct. at 404; Jurisdictional Disputes in the Construction Industry Since CBS, 52 Geo.L.J. 314, 316 (1964).

In the past, these disputes led to costly jurisdictional strikes.

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736 F. Supp. 210, 1990 U.S. Dist. LEXIS 5492, 1990 WL 58790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/local-513-international-union-of-operating-engineers-v-js-alberici-moed-1990.