Oil, Chemical & Atomic Workers International Union, Afl-Cio Local 2-652 v. Eg & G Idaho, Inc.

769 P.2d 548, 115 Idaho 671, 29 Wage & Hour Cas. (BNA) 254, 1989 Ida. LEXIS 15, 130 L.R.R.M. (BNA) 2686
CourtIdaho Supreme Court
DecidedFebruary 8, 1989
Docket17040
StatusPublished
Cited by11 cases

This text of 769 P.2d 548 (Oil, Chemical & Atomic Workers International Union, Afl-Cio Local 2-652 v. Eg & G Idaho, Inc.) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Oil, Chemical & Atomic Workers International Union, Afl-Cio Local 2-652 v. Eg & G Idaho, Inc., 769 P.2d 548, 115 Idaho 671, 29 Wage & Hour Cas. (BNA) 254, 1989 Ida. LEXIS 15, 130 L.R.R.M. (BNA) 2686 (Idaho 1989).

Opinions

BAKES, Justice.

Oil, Chemical & Atomic Workers International Union (the Union) sued EG & G, Idaho, Inc. (EG & G), to compel arbitration concerning the subcontracting of alleged bargaining unit work. EG & G had previously refused to process grievances filed by the Union, asserting that the United States Department of Energy (DOE), with whom EG & G was under contract, had the sole and absolute authority to determine whether the work in question was Davis-Bacon work and therefore not bargaining unit work. EG & G argued, first, that under the EG & G-DOE contract, which dealt primarily with management, operation and maintenance of DOE facilities at the Idaho National Engineering Laboratory (INEL), EG & G was required to subcontract out Davis-Bacon work: construction or construction-type work. Second, the EG & G-Union working agreement (collective bargaining agreement) reflected this requirement since Davis-Bacon work was excluded from its coverage. The district court agreed with EG & G and dismissed the Union’s complaint, holding that any Union grievances concerning DOE’s Davis-Bacon work determinations had been negotiated away prior to the adoption of the working agreement. The Union appealed the decision.

Although we find that the DOE specifically the DOE Davis-Bacon Committee, has absolute authority to make the final Davis-Bacon work determinations, there are other matters which are arbitrable under the collective bargaining agreement. Accordingly, this case is reversed and remanded for further proceedings.

I

EG & G is under contract with DOE to manage, operate and maintain DOE facilities at INEL. This work is performed by EG & G employees, including members of the Union. Article III(B) of the EG & G-DOE contract requires EG & G to “procure by subcontract the construction of new facilities or the alteration or repair of Government facilities.” DOE Procurement Regulation 970.2273(b)(1) provides that where a DOE contract does not contemplate the performance by the contractor’s employees of work covered by the Davis-Bacon Act (Davis-Bacon work), the contractor is “neither asked nor authorized to perform work within the scope of the Davis-Bacon Act.” Davis-Bacon work refers to construction or construction-type work, specifically, the “construction, alteration, and/or repair, including painting and decorating, of public buildings or public works ...,” for every government contract in excess of $2,000. 40 U.S.C. § 276a.

The practice between DOE and EG & G involves two committees which review whether particular work is Davis-Bacon work. After considering the nature of the projects, the EG & G Davis-Bacon committee makes its recommendations to the DOE contracting officer, who chairs the DOE Davis-Bacon committee. DOE bears direct responsibility for administration and enforcement of the Davis-Bacon Act concerning DOE contracts. DOE/PR § 9-18.705-50(a). To determine Davis-Bacon coverage, the DOE Davis-Bacon committee applies criteria set forth in DOE procurement regulations. DOE/PR § 9-18.700 et seq.

EG & G and the Union were under a collective bargaining agreement effective May 21, 1985, through May 20, 1988. Dur[673]*673ing the negotiations leading to this agreement, the Union representative sought inclusion of Davis-Bacon work in the collective bargaining agreement, or at least an arrangement for Union input on the determination. The EG & G representative replied that the EG & G-DOE contract barred EG & G and therefore the Union from performing Davis-Bacon work. Further, EG & G took the negotiation position that EG & G had no authority to change the Davis-Bacon determination scheme. The Union apparently acquiesced in EG & G’s position, and the collective bargaining agreement (Article 22.12(l)(a) and (d)) provided that bargaining unit personnel shall perform various work except that “which qualifies under Davis/Bacon Act determination as being work for others.”

Article 17 of the collective bargaining agreement details the procedure for presenting grievances involving the agreement’s application or interpretation. The Union may seek arbitration if unsatisfied with the grievance resolution. Article 17.5. In addition, Article 23.1 provides:

“that should any orders or directives of the DOE conflict with any of the provisions of this Working Agreement such orders or directives shall prevail here-over, but Company and Union shall meet within thirty (30) days to negotiate a mutually satisfactory substitute for the contract clause or practice involved and if unable to reach agreement within the thirty (30) day period, the issue shall be submitted to an impartial arbitrator in accordance with Article XVII, Grievance Procedure.”

In December of 1985, the Union presented several grievances to EG & G, disputing determinations by DOE’s Davis-Bacon committee. Specifically, the Union contended that EG & G had no right to subcontract work on (1) underground feeders, (2) steam lines, (3) building painting, and (4) hot cell painting. Because these projects were not Davis-Bacon work, the Union argued, EG & G employees, including members of the Union, were entitled to do them. EG & G refused to process the grievances, and the Union sought arbitration.

After EG & G’s refusal to arbitrate, the Union sued EG & G seeking enforcement of the working agreement’s grievance and arbitration procedure, specifically Articles 17 and 23. The Union argued these four Davis-Bacon determinations were proper subjects for Article 17.5 arbitration, and that the arbitrator, not the court, should decide the proper application and interpretation of Article 22.12 references to Davis-Bacon determinations. Furthermore, the Union argued, DOE does not have absolute authority to make such determinations pursuant to the EG & G-DOE contract, DOE regulations, or otherwise.

The district court disagreed with the Union and dismissed the suit. The district court concurred with EG & G’s position that DOE is the final and absolute authority on Davis-Bacon determinations and, because of this, arbitration would be a futile endeavor. The Union’s remedy, the court suggested, is to negotiate and convince EG & G “to take a stronger stand in trying to get DOE to redefine the Davis-Bacon work.”

On motion for reconsideration, the district court adhered to its dismissal order. As an additional basis for its decision, the district court held that the Union previously negotiated away any future grievance based on a Davis-Bacon determination. Also, “if the Union had any remedy, it would come under Article 23 of the collective bargaining agreement and the Union chose not to seek any remedy under that Article.” The district court read Article 23 to provide “that should any [DOE directive or order] conflict with any provisions of the working agreement, such [DOE orders] prevail.”

II

The primary issue before this Court is whether and to what extent the Union and EG & G must arbitrate differences concerning Davis-Bacon work determinations. A preliminary issue involves the role of the courts: whether the court has jurisdiction and authority to determine the arbitrability of these differences. On this question, there is no dispute. Both parties [674]*674cite AT & T Technologies, Inc. v. Communications Workers,

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769 P.2d 548, 115 Idaho 671, 29 Wage & Hour Cas. (BNA) 254, 1989 Ida. LEXIS 15, 130 L.R.R.M. (BNA) 2686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oil-chemical-atomic-workers-international-union-afl-cio-local-2-652-v-idaho-1989.