Calumet River Fleeting, Incor v. International Union of Operati

Filing

Filed opinion of the court by Judge Hamilton. We DISMISS the portion of the Union s appeal related to injunctive relief. The judgment of the district court is otherwise AFFIRMED. Diane P. Wood, Chief Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge. [6754191-1] [6754191] [15-3174]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3174
CALUMET RIVER FLEETING, INC.,
Plaintiff-Appellee,
v.
INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL 150, AFL-CIO,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14-cv-00133 — Sharon Johnson Coleman, Judge.

____________________
ARGUED FEBRUARY 23, 2016 — DECIDED MAY 31, 2016
____________________
Before WOOD, Chief Judge, and SYKES and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. In July 2013, plaintiff Calumet
River Fleeting, Inc. fired a boat operator, and defendant International Union of Operating Engineers, Local 150, AFL-CIO
(“the Union”) filed a grievance with Calumet over the termination. Calumet refused to participate in the arbitration, saying that although it was once a party to a collective bargaining

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agreement with the Union, Calumet had terminated its participation in that agreement before the dispute arose over the
firing. When the Union took steps to start the arbitration, Calumet filed this suit to stop it. The Union counterclaimed for
an order compelling arbitration. The district court granted
summary judgment to Calumet, holding that it was no longer
a party to any agreement with the Union that might have required arbitration.
The Union has appealed, arguing that an earlier arbitration award in an unrelated proceeding had found that Calumet was an alter ego of Selvick Marine Construction, LLC, a
company that was a party to the collective bargaining agreement. By virtue of the alter ego relationship, the Union contends that Calumet had to submit to arbitration.
We affirm. We first find that we have appellate jurisdiction
over this matter despite the lack of a separate judgment. On
the merits, the arbitration award on which the Union relies
does not show that Calumet was still a party to the collective
bargaining agreement. Calumet is entitled to judgment as a
matter of law.
I. Factual Background and Procedural History
We review de novo a district court’s decision on cross-motions for summary judgment. Exelon Generation Co. v. Local 15,
International Brotherhood of Electrical Workers, 540 F.3d 640, 643
(7th Cir. 2008). The general standards for summary judgment
do not change: with “cross summary judgment motions, we
construe all facts and inferences therefrom ‘in favor of the
party against whom the motion under consideration is
made.’” In re United Air Lines, Inc., 453 F.3d 463, 468 (7th Cir.
2006), quoting Kort v. Diversified Collection Services, Inc., 394

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F.3d 530, 536 (7th Cir. 2005). Because we need consider only
Calumet’s motion for summary judgment, we resolve all factual disputes and draw all reasonable inferences in the Union’s favor.
A. Background of the Companies and Their Relationship with
the Union
Plaintiff Calumet River Fleeting, Inc. is a Wisconsin corporation engaged in marine towing. It was formed by John
Selvick in 1999. The International Union of Operating Engineers, Local 150, AFL-CIO is a labor organization that represents heavy equipment operators, mechanics, and other employees in parts of Illinois, Indiana, and Iowa.
In 2006, Calumet and the Union signed a memorandum of
agreement binding Calumet to the terms of the Great Lakes
Floating Agreement. The Floating Agreement is a collective
bargaining agreement that covers marine construction. The
memorandum of agreement contained an “evergreen clause”
requiring the employer to adhere to the terms of each successive edition of the agreement unless and until the agreement
was properly terminated.
In September 2008, Calumet terminated its participation in
the Floating Agreement. This meant that contractors who
were themselves signatories to the Floating Agreement could
no longer hire Calumet without violating the agreement’s
subcontracting provision. Less than two years later, in April
2010, John Selvick organized a new company called Selvick
Marine Construction, LLC. Selvick Marine signed a memorandum of agreement with the Union on June 2, 2010 adopting the terms of the Floating Agreement. Mr. Selvick also
signed a towing addendum on Selvick Marine’s behalf. The

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towing addendum covers non-construction towing work.
Like the Floating Agreement, it contains an evergreen clause.
B. The 2012 Arbitration
In September 2011, the Union filed three grievances
against Selvick Marine, initiating the three-step grievance
procedure prescribed by the Floating Agreement. The Union
alleged that Selvick Marine had violated the Floating Agreement when it performed certain work without following the
agreement’s procedures. It was actually Calumet, not Selvick
Marine, that had performed the work in question, but the Union sought to hold Selvick Marine accountable. Under the Union’s theory, the two companies were alter egos, so Calumet’s
actions—and its failure to comply with the Floating Agreement—were attributable to Selvick Marine, which was a party
to the Floating Agreement.
The parties could not agree on the grievances, so the Union submitted them to arbitration. Selvick Marine appeared to
participate. Calumet did not, although it had been served
with a subpoena duces tecum that identified the date and time
of the arbitration. In between hearing dates, the Union filed
suit to enforce the subpoena. In that suit, Calumet argued that
it was not Selvick Marine’s alter ego, but it never made the
same argument in front of the arbitrator.
On July 24, 2012, the arbitrator issued his decision and
award. He found that John Selvick had formed Selvick Marine
to recapture work that Calumet had lost when it terminated
its agreement with the Union. The arbitrator concluded that
Selvick Marine and Calumet were alter ego companies, pointing out: Mr. Selvick supplied capital to Selvick Marine; employees of both companies reported to the same location for

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work; Selvick Marine used only Calumet boats in its work;
and the companies shared stationery, employees, forms, logs,
worksheets, fueling vendors, and insurance policies. Although Selvick Marine maintained it was a separate company,
the arbitrator disagreed. He expressly declined to pass judgment on the legality of the arrangement between Calumet and
Selvick Marine, but he found that when Calumet performed
work using union employees in the Union’s territory, that
work was subject to the Floating Agreement by virtue of
Selvick Marine’s signatory status. He then sustained the Union’s grievances.
Turning to the question of a remedy, the arbitrator found
that the work that had violated the Floating Agreement could
not be undone, nor could Selvick Marine retroactively comply
with the relevant provisions of the agreement. He ordered
back pay and benefits to make whole the Union workers who
had not been compensated in conformity with the Floating
Agreement. He did not order any prospective relief, however,
noting that the 2009–2011 Floating Agreement had expired on
December 31, 2011 and that it was unclear whether any continuing relationship existed between the Union, Selvick Marine, and Calumet since the agreement’s expiration. Thus, he
concluded, he was “without authority to issue such a prospective remedy.”
Neither Selvick Marine nor Calumet ever sought to vacate
or modify the arbitration award. Selvick Marine simply complied with it. Sometime in 2011 or 2012, though, Selvick Marine dissolved and liquidated operations.

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C. The Present Dispute
In July 2013, Calumet fired one of its boat operators, Angelo Zuccolo. The Union grieved the firing and eventually demanded arbitration. Calumet refused to participate in the arbitration on the ground that it was not a party to any collective
bargaining agreement with the Union. The Union notified the
American Arbitration Association of the dispute and requested an arbitration panel. Calumet then filed this suit seeking both a declaration that it was not a party to any collective
bargaining agreements with the Union and an injunction preventing the Union from continuing with the arbitration. The
Union counterclaimed, seeking, among other things, to enforce the July 2012 arbitration decision finding that Selvick
Marine and Calumet were alter egos and an order compelling
Calumet to submit to arbitration pursuant to the Floating
Agreement. The Union agreed to postpone the arbitration
pending the outcome of this suit.
Both parties moved for summary judgment. The district
court rejected the Union’s argument that the 90-day statute of
limitations to challenge an arbitration award applied to Calumet’s claims. The court also rejected the Union’s attempt to
rely on the arbitrator’s alter ego finding to show that Calumet
had been a party through Selvick Marine. The Union had offered no basis apart from the arbitrator’s conclusion to support an alter ego finding, so the court concluded that it had no
basis to enforce against Calumet in this action the arbitrator’s
finding that Calumet and Selvick Marine were alter egos. Finally, the district court rejected the Union’s argument that the
Norris-LaGuardia Act, 29 U.S.C. § 101 et seq., prohibited injunctive relief in the case.

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For these reasons, the court granted Calumet’s motion, denied the Union’s motion, and dismissed the Union’s counterclaims. The court did not, however, enter a separate judgment
pursuant to Federal Rule of Civil Procedure 58. On September
30, 2015, the Union filed a notice of appeal.
II. Appellate Jurisdiction
Before addressing the merits of the appeal, we must be
sure we have appellate jurisdiction. The Union contends it has
appealed a final decision under 28 U.S.C. § 1291. Generally, an
order is final for appeal purposes under § 1291 “if it ends the
litigation and leaves nothing to be decided in the district
court.” United States v. Ettrick Wood Products, Inc., 916 F.2d
1211, 1216 (7th Cir. 1990).
The question of appellate jurisdiction arose because the
district court issued a memorandum opinion on the motions
but did not enter a separate judgment under Federal Rule of
Civil Procedure 58(a), which requires that a judgment be “set
out in a separate document.” “The grant of a motion for summary judgment is not one of the exceptions to the separate
document requirement listed in Rule 58(a), so a separate document was required in this case to have a proper Rule 58 judgment.” Perry v. Sheet Metal Workers’ Local No. 73 Pension Fund,
585 F.3d 358, 361 (7th Cir. 2009); see also Alpine State Bank v.
Ohio Casualty Insurance Co., 941 F.2d 554, 558 (7th Cir. 1991)
(“In satisfying the requirement of Rule 58, neither the memorandum opinion explaining the ruling on summary judgment, nor the minute order announcing the summary judgment can be substituted for a declaratory judgment.”). And
although Calumet had sought injunctive as well as declaratory relief, the court issued no separate injunction or declaration of rights following the memorandum opinion.

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At oral argument, we asked for supplemental briefs on appellate jurisdiction. The responses satisfy us that we have jurisdiction over this appeal. First, the district court’s failure to
enter a separate Rule 58 judgment is not always decisive.
Compliance with Rule 58 makes appellate jurisdiction simpler for the parties and the courts, but we may still have jurisdiction if we “know from other sources” that there has been a
final judgment. First Nat’l Bank of Chicago v. Comptroller of the
Currency, 956 F.2d 1360, 1363 (7th Cir. 1992); see also Fed. R.
App. P. 4(a)(7)(B) (“A failure to set forth a judgment or order
on a separate document when required by Federal Rule of
Civil Procedure 58(a) does not affect the validity of an appeal
from that judgment or order.”). The federal rules deal with
such oversights by district courts. When a judgment is not set
forth on a separate document but Rule 58(a) requires it, we
treat judgment as entered 150 days after the entry of the judgment or order on the civil docket. Fed. R. Civ. P. 58(c)(2)(B);
Fed. R. App. P. 4(a)(7)(A)(ii); see also Perry, 585 F.3d at 362. In
this case, the district court entered its memorandum opinion
and order on September 4, 2015. The 150-day period thus
lapsed on February 1, 2016, at which point judgment was effectively entered for appeal purposes, and the Union’s earlier
notice of appeal “is treated as filed on the date of and after the
entry.” Fed. R. App. P. 4(a)(2).
So the district court’s failure to enter a Rule 58 judgment
does not require dismissal. We still must ask whether the district court was finished with the case, even though it did not
enter a separate injunction or declaration of the parties’ rights.
We take the question of the injunction first. Both the Federal
Rules of Civil Procedure and the Norris-LaGuardia Act,
which governs the issuance of injunctions in labor disputes,
require the court to make any injunction specific. See Fed. R.

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Civ. P. 65(d)(1) (order granting injunction must “state the reasons why it issued,” “state its terms specifically,” and “describe in reasonable detail … the act or acts restrained or required”); 29 U.S.C. § 109 (requiring that findings of fact be
“made and filed by the court” and that injunction be limited
to a prohibition of a “specific act or acts”). The absence of a
separate and specific injunction could be a serious problem,
but the parties’ supplemental briefs told us that they have
reached a compromise on the issue of injunctive relief. We see
no need to remand to the district court for entry of an injunction that Calumet no longer seeks or needs. 1
As for the request for declaratory judgment, we have said
that “in declaratory judgment actions, district courts must declare specifically and separately the respective rights of the
parties, not simply state in a memorandum opinion, minute
order, or a form prescribed for judgment in a civil case that a
motion has been granted or denied.” Alpine State Bank, 941
F.2d at 558. No such declaration appears in the record. Still,
we may nevertheless have jurisdiction if “‘the practicalities
weigh heavily’ toward a common sense conclusion that the
district court intended to enter a final judgment.” Id. at 559
(internal citation omitted), quoting Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 837 (1989).
Calumet’s motion for summary judgment asked the district court to “enter a declaration that Calumet is not subject
to the terms of any collective bargaining agreement with” the
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We also need not decide whether or not Federal Rule of Civil Procedure 65 applies to cases otherwise covered by the Norris-LaGuardia Act.
See Fed. R. Civ. P. 65(e)(1) (Rule 65 provisions “do not modify … any federal statute relating to temporary restraining orders or preliminary injunctions in actions affecting employer and employee[.]”).

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Union. The court concluded “that based on the undisputed
facts Calumet is not a signatory to the 2012–2014 [Floating
Agreement] or any collective bargaining agreement with the
Union. Calumet thus cannot be compelled to arbitrate the
Zuccolo grievance or submit to an audit.” It then granted Calumet’s motion for summary judgment, which addressed all of
Calumet’s claims, and dismissed the Union’s counterclaims.
Despite the absence of a separate Rule 58 judgment, the district court’s memorandum and the absence of any other claims
or later actions by the court make sufficiently plain both what
the court declared and that the district court was finished with
the case. We thus have jurisdiction over this appeal. Metzl v.
Leininger, 57 F.3d 618, 620 (7th Cir. 1995); see also Buck v. U.S.
Digital Communications, Inc., 141 F.3d 710, 711 (7th Cir. 1998)
(“If the terms of declaratory relief appeared in the court's
opinion and it were plain that the case is finished, we would
not stand on ceremony—at least not as far as the need for a
‘final decision’ is concerned, although the lack of specificity
might make the decision hard to enforce.”). We proceed to the
merits, where we can be brief.
III. Analysis
The district court correctly concluded that the arbitration
award did not bind Calumet to the 2012–2014 Floating Agreement. We briefly address two preliminary matters that simplify our approach to the appeal. First, as noted above, the
Union initially contended that the Norris-LaGuardia Act prohibited an injunction in this case. Since the parties have
reached an agreement that eliminates the request and/or need
for injunctive relief, we need not decide whether the district
court correctly decided the Norris-LaGuardia issue. Second,
because the Union agreed to postpone the arbitration pending

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the outcome of this suit, it waived any argument that Calumet
was required to allow the arbitration to reach a conclusion before proceeding with this case in court. Cf. AT&T Broadband,
LLC v. International Brotherhood of Electrical Workers, 317 F.3d
758 (7th Cir. 2003) (discussing timing of litigation regarding
arbitrability of a dispute and concluding company seeking
anti-arbitration injunction was not entitled to pre-arbitration
judicial review).
On the merits, the Union’s argument begins and ends with
the finding of alter ego in the 2012 arbitration award. The Union asks us to treat that finding as binding Calumet to the
Floating Agreement for purposes of the dispute over Mr. Zuccolo’s firing based on Selvick Marine’s previous status as a
party to the Floating Agreement. In support, the Union relies
on the rule that failure to challenge an arbitration award
within the applicable limitations period renders the award final. See International Union of Operating Engineers, Local 150 v.
Rabine, 161 F.3d 427, 433–34 (7th Cir. 1998) (“The rule is a simple one: If you receive notice of an adverse decision in a federal labor arbitration, challenge it within 90 days or expect to
pay up.”). The Union also relies on the great deference courts
give to arbitrators’ awards, enforcing them as long as the arbitrator has arguably interpreted the collective bargaining
agreement between the parties even if the courts believe the
arbitrator seriously erred. E.g., Prate Installations, Inc. v. Chicago Regional Council of Carpenters, 607 F.3d 467, 471 (7th Cir.
2010), quoting Clear Channel Outdoor, Inc. v. International Unions of Painters & Allied Trades, Local 770, 558 F.3d 670, 677 (7th
Cir. 2009).
These general rules are correct, but they do not address
this situation. When the arbitrator entered the 2012 award, he

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made clear that it should have no prospective effect. Not only
did he refuse to order prospective compliance with the terms
of the Floating Agreement, he did so expressly because the
precise point on which the Union’s current argument depends—the existence of a continuing relationship between
Calumet and the Union—had not been established:
Moreover, it is unclear on the record before the
Arbitrator whether there is any continuing relationship, contractual or otherwise, between either IUOE Local 139 and/or IUOE Local 150 and
[Selvick Marine] and/or [Calumet] since the expiration of the [Floating Agreement] on December 31, 2011.
Selvick Marine chose not to fight the alter ego determination
or the award of back pay and benefits. It just paid the award.
At that point, the alter ego determination had served its purpose, holding that Calumet had violated the agreement in the
past and that Selvick Marine was liable for those violations.
As a purely retrospective determination, the award could
have no additional impact on Calumet’s relationship with the
Union going forward. In other words, once Selvick Marine
paid the award, nothing remained for Calumet to challenge.
It therefore makes no difference here that an arbitration
award cannot be challenged after the limitations period runs,
Rabine, 161 F.3d at 433–34, or that judicial review of an award
is so limited, Prate Installations, 607 F.3d at 471. The Union
made a strategic decision to rely entirely on the award’s alter
ego finding as a basis to compel arbitration, but the award
simply does not serve that function. It provided no prospective relief and had no prospective effect. It did not establish
that Calumet was a party to the Floating Agreement when it

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fired Zuccolo. It did not establish that Calumet was then the
alter ego of Selvick Marine, which had dissolved sometime in
2011 or 2012.
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 Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648 (1986) (internal quotation marks omitted), quoting United Steelworkers of America
v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960). The
Union has failed to pose a genuine dispute of fact as to
whether Calumet agreed to submit the termination of Zuccolo
to arbitration. Its alter ego argument failed as discussed
above, and the undisputed facts of record show that Calumet
terminated its participation in the Floating Agreement in
2008. Nor has the Union presented any evidence that Calumet
itself signed on to later versions of the agreement. On this record, Calumet was entitled to judgment as a matter of law.
We DISMISS the portion of the Union’s appeal related to
injunctive relief. The judgment of the district court is otherwise AFFIRMED.