Brock Industrial Services, LLC v. Laborers International Union of North America, Construction & General Laborers Local #100
Filing
37
ORDER DENYING 15 Motion to Dismiss for Failure to State a Claim filed by Laborers; DENYING 18 Motion to Vacate filed by Brock; DENYING 26 Motion to Dismiss the Motion to Vacate filed by Laborers; and DENYING 30 Motion to Enforce filed by Laborers. Signed by Judge Nancy J. Rosenstengel on 3/27/2017. (bak)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BROCK INDUSTRIAL SERVICES, LLC, )
)
Plaintiff,
)
)
vs.
)
)
LABORERS INTERNATIONAL UNION )
OF NORTH AMERICA,
)
CONSTRUCTION & GENERAL
)
LABORERS LOCAL #100,
)
)
Defendant.
)
Case No. 16-CV-780-NJR-DGW
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Pending before the Court are the following four motions: a Motion to Dismiss
for Failure to State a Claim (Doc. 15) filed by Laborers International Union of North
America, Construction & General Laborers Local #100 (“Laborers”); a Motion to Vacate
(Doc. 18) filed by Brock Industrial Services, LLC (“Brock”); a Motion to Dismiss the
Motion to Vacate (Doc. 26) filed by Laborers; and a Motion to Enforce (Doc. 30) filed by
Laborers. For the reasons set forth below, the Court denies all four motions.
FACTUAL & PROCEDURAL BACKGROUND
This action arises out of a distribution of labor assignment dispute between Brock
and Laborers. Specifically, Brock seeks to have the April 14, 2016 decision by the
National Maintenance Agreement Policy Committee, Inc. (“NMAPC”) Grievance
Review Subcommittee (“GRS”) vacated by the Court. The Court will refer to the April
14, 2016 decision from this point forward as “the GRS decision.”
Page 1 of 17
The facts leading to the GRS decision are largely uncontested. Brock and Laborers
agreed to the National Maintenance Agreement collective bargaining agreement
(“NMA”) with an effective date of January 7, 2016. (Doc. 1-3, p. 11). The NMA provides
in pertinent part that “[e]xcept for jurisdictional disputes . . . all disputes and grievances
arising out of work performed under this Agreement . . . shall be resolved . . . ” through
the procedure outlined in Article VI—Grievances of the NMA (hereafter referred to as
“the procedure for disputes and grievances”) (Doc. 1-3, p. 15). This procedure for
disputes and grievances requires the parties to submit any grievance that they cannot
resolve to the NMACP for a decision. (Doc. 1-3, p. 15). For work jurisdictional disputes, a
different procedure under the NMA applies, beginning at Article I, Section 6 (hereafter
referred to as “the procedure for jurisdictional disputes”) (Doc. 1-3, p. 12-13). 1
On January 8, 2016, Brock notified Laborers that scaffolding work, which was to
be performed at the Afton Chemical Plant, would be assigned to the International
Brotherhood of Carpenters (“Carpenters”) (Doc. 18-1). On January 11, 2016, Laborers
notified the NMAPC via letter that Brock violated the NMA when it wrongfully
terminated Laborers and subsequently awarded the scaffolding work to Carpenters on
January 8, 2016 (Doc. 1-3, p. 35). On January 21, 2016, Laborers also notified Carpenters
that there was a work jurisdiction dispute between their respective organizations over
the scaffolding work (Doc. 1-3, p. 37).
A work jurisdiction dispute is “a dispute between two or more groups of employees over which is
entitled to do certain work for an employer.” Hutter Const. Co. v. Int’l Union of Operating Eng’rs, Local 139,
AFL-CIO, 862 F.2d 641, 644 (7th Cir. 1988). There are three different areas of consideration in this case that
use the term “jurisdiction” or some variation thereof. To avoid confusion, when the Court uses the terms
“jurisdiction” or “work jurisdiction,” it is referring to the assignment of work to either Laborers or
Carpenters. When the Court mentions its own subject matter jurisdiction over the case, it will use the
specific term “subject matter jurisdiction.” When the Court refers to the jurisdiction of the NMAPC
generally and the GRS specifically over the claimed grievance, it will use the term “arbitration authority.”
1
Page 2 of 17
On January 25, 2016, in accordance with the procedure for disputes and
grievances (Article VI—Grievances) in the NMA, Laborers filed a grievance with the
NMAPC over the January 8, 2016 work assignment, alleging that a wrongful termination
of Laborers’ members had occurred and seeking the reinstatement of those members
(Doc. 1-3, p. 39). On March 3, 2016, Brock responded to the grievance, asserting that the
dispute relating to the January 8, 2016 work assignment was a work jurisdiction dispute
and was therefore beyond the scope of the NMAPC’s arbitration authority. Brock further
requested that the grievance be dismissed and denied (Doc. 1-3, p. 54).
The GRS denied Brock’s request and, on April 14, 2016, found that “a violation of
Article I, Section 5 of the National Maintenance Agreement occurred when [Brock] made
a change of assignment and therefore the grievance was sustained.” (Doc. 1-3, p. 3).
Specifically, this section of the NMA cited by the GRS reads as follows: “During the
existence of the Agreement, there shall be no strikes, lockouts, work stoppages, or
picketing arising out of any jurisdictional dispute. Work will continue as originally
assigned, pending resolution of the dispute.” (Doc. 1-3, p. 12). The GRS decision then
directed the parties to “avail themselves of the NMACP Work Assignment Dispute
Process contained within Article I commencing with Section 6” (the procedure for
jurisdictional disputes) (Doc. 1-3, p. 3).
Brock and Laborers disagree over whether Brock’s January 8, 2016 assignment of
scaffolding work to Carpenters involves a work jurisdiction dispute or a wrongful
termination (or lockout) in addition to a work jurisdiction dispute. Related to this issue,
Brock and Laborers disagree over whether Brock previously assigned scaffolding work
Page 3 of 17
to Laborers prior to the January 8, 2016 assignment of scaffolding work to Carpenters,
and thus effectively terminated Laborers from the work by reassigning it to Carpenters.
On July 12, 2016, Brock filed suit against Laborers pursuant to Section 301 of the
Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, seeking to have the GRS
decision vacated on the basis that it is outside the scope of the GRS’s arbitration
authority (Doc. 1). 2 Since that time, there have been four motions filed with the Court,
one by Brock and three by Laborers, all of which are interrelated. Specifically, on August
2, 2016, Laborers filed a Motion to Dismiss (Doc. 15), seeking dismissal of the Complaint
for failure to state a claim. On September 19, 2016, Brock filed a Motion to Vacate
(Doc. 18), seeking to have the GRS decision vacated. On September 30, 2016, Laborers
filed a Motion to Dismiss the Motion to Vacate (Doc. 26), seeking to have Brock’s Motion
to Vacate dismissed on timeliness grounds, as well as being redundant with Brock’s
Complaint. Lastly, on November 28, 2016, Laborers filed a Motion to Enforce (Doc. 30),
seeking to have the GRS decision enforced.
ANALYSIS
I.
Motion to Dismiss the Motion to Vacate (Doc. 26)
As a preliminary matter, the Court will address the Motion to Dismiss the Motion to
Vacate (Doc. 26) filed by Laborers. Laborers argues that Brock’s Motion to Vacate (Doc. 18) is
untimely under the statute of limitations pursuant to the Federal Arbitration Act (FAA), but
gives no explanation as to how or why the FAA should control the statute of limitations here.
2
The LMRA “provides for federal subject-matter jurisdiction over ‘[s]uits for violation of contracts
between an employer and a labor organization’ (such as collective bargaining agreements), ‘without
respect to the amount in controversy or without regard to the citizenship of the parties.’” Lippert Tile Co. v.
Int’l Union of Bricklayers & Allied Craftsmen, Dist. Council of Wis. & Its Local 5, 724 F.3d 939, 944 (7th Cir. 2013)
(quoting 29 U.S.C. § 185(a)).
Page 4 of 17
Moreover, Brock does not raise an FAA claim in the Complaint, but brings its claims solely
pursuant to the Labor Management Relations Act (“LMRA”). Thus, the Court finds Laborers’
timeliness argument to be largely undeveloped. The Court also does not find it appropriate to
strike the Motion to Vacate under Federal Rule of Civil Procedure 12(f)(2). Accordingly, the
Court denies the Motion to Dismiss the Motion to Vacate (Doc. 26) filed by Laborers. 3
II.
Motion to Dismiss for Failure to State a Claim (Doc. 15) filed by Laborers
a. Applicable Law
To withstand a Rule 12(b)(6) motion, a complaint must “state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a
complaint does not need to include detailed factual allegations, there “must be enough
to raise a right to relief above the speculative level.” Id. at 555. Under this plausibility
standard, a court must “accept the well-pleaded facts in the complaint as true, but [it]
‘need not accept as true legal conclusions, or threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements.’“ Alam v. Miller Brewing Co.,
709 F.3d 662, 665-66 (7th Cir. 2013) (quoting Brooks v. Ross, 578 F.3d 574, 581 (7th Cir.
2009)). A court “must consider the complaint in its entirety, as well as other sources
courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular,
documents incorporated into the complaint by reference . . . .” Tellabs, Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. 308, 322 (2007).
There are two broad categories of general consideration over an arbitration
award—whether the dispute is arbitrable and whether the arbitration award was correct
3
Because Laborers’ motion was filed in response to Brock’s Motion to Vacate, and because the motion
practice that has taken place in this case is somewhat confusing, the Court will not deem the merits of
Brock’s Motion to Vacate to be admitted by Laborers, especially when the merits of Brock’s Motion to
Vacate have been contested by Laborers’ other filings.
Page 5 of 17
on the merits. The scope of judicial review of an arbitration award is extremely narrow.
Ethyl Corp. v. United Steelworkers of Am., AFL-CIO-CLC, 768 F.2d 180, 183 (7th Cir. 1985). A
court is only empowered to determine whether the dispute is arbitratable. “[W]hether 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.” John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 547 (1964). Further, a court
“may review and set aside an award if the grievance is not arbitrable.” Cannon v. Consol.
Freightways Corp., 524 F.2d 290, 295 (7th Cir. 1975). When reviewing an arbitration award,
a court is confined to an inquiry of whether the award is based on the collective
bargaining agreement because “the arbitrator’s award is enforceable so long as it draws
its essence from the collective bargaining agreement, even if the court thinks the
arbitrator misconstrued the contract.” Ethyl Corp., 768 F.2d at 184 (internal quotation
omitted). The underlying merits of the arbitration award should not be examined
because “[t]he federal policy of settling labor disputes by arbitration would be
undermined if courts had the final say on the merits of the awards.” United Steel Workers
of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 596 (1960).
B.
Discussion
In the Motion to Dismiss for Failure to State a Claim (Doc. 15), Laborers argues
that Brock’s Complaint “fails to state a cause of action in which relief can be granted.”
(Doc. 15, p. 1). In support, Laborers alleges that “[v]iolations under [Section] 301 occur
when the union has breached the collective bargaining agreement” and “[n]o violation
occurred here as the Parties expressly agreed to arbitrate the subject matter of the
Page 6 of 17
grievance in the Collective Bargaining Agreement.” (Doc. 15, ¶ 9-10). Laborers views the
labor dispute as a two-step wrongful termination (or lockout) arising out of a work
jurisdiction dispute premised on Laborers having been originally assigned the
scaffolding work.
Brock alleges in its Complaint that the labor dispute decided by GRS was solely a
work jurisdiction dispute (Doc. 1, ¶ 13). Further, Brock alleges that a work jurisdiction
dispute is beyond the NMAPC’s arbitration authority. In a document attached to the
Complaint, which appears to be correspondence from Brock to the NMAPC in response
to Laborers’ grievance filing, Brock states that “Laborers have never been trained or
responsible for erecting, modifying, or dismantling scaffolding.” (Doc. 1-3, p. 55).
Although not contained within the four corners of the Complaint, it is proper for the
Court to consider this and all other attachments to the Complaint because “courts must
consider the complaint in its entirety, as well as other sources courts ordinarily examine
when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into
the complaint by reference, and matters of which a court may take judicial notice. Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) (emphasis added). The various
documents comprising Doc. 1-3 are expressly incorporated into the Complaint by
reference to each individual document (See Doc. 1 ¶ 1-2, and ¶ 19). This includes the
NMA in force at the time the events occurred, as well as the GRS decision (Doc. 1-3, ¶
1-2).
Page 7 of 17
i. The Procedure for Jurisdictional Disputes (Article I, Section 6) and
the Procedure for Disputes and Grievances (Article VI—Grievances)
Are Both Arbitration
The Court must first determine if the procedure for jurisdictional disputes (Article
I, Section 6) and the procedure for grievances (Article VI—Grievances), which is the
procedure by which the GRS came to issuing its decision, are arbitration. There can be no
doubt that the procedure for jurisdictional disputes is arbitration, as it explicitly
provides for the parties involved to “refer the matter to arbitration” if they are unable to
resolve the dispute among themselves (Doc. 1-3, p. 12 ¶ 7).
Although not explicitly termed arbitration, the procedure for disputes and
grievances (Article VI—Grievances) is also arbitration. The actual language within the
NMA describes the grievance as being “submitted to the NMAPC for a decision to
become effective immediately . . . .” (Doc. 1-3, p. 15). If the NMAPC is unable to reach a
decision, then the matter is submitted to the American Arbitration Association for a
binding decision (Doc. 1-3, p. 15).
Whether a dispute resolution procedure is arbitration “does not depend on the
nomenclature used in the agreement, rather, the question is how closely the specified
procedure resembles classic arbitration.” Fit Tech, Inc. v. Bally Total Fitness Holding Corp.,
374 F.3d 1, 7 (1st Cir. 2004) (internal citation omitted). The procedures of classic
arbitration include “(i) an independent adjudicator, (ii) who applies substantive legal
standards (i.e. the parties’ agreement and background contract law), (iii) considers
evidence and argument (however formally or informally) from each party, and
(iv) renders a decision that purports to resolve the rights and duties of the parties . . . .”
Advanced Bodycare Solutions, LLC v. Thione Int’l., Inc., 524 F.3d 1235, 1239 (11th Cir. 2008).
Page 8 of 17
The procedure for disputes and grievances (Article VI—Grievances) has all four
of the identified procedures of classic arbitration. Although not termed as such, the
NMAPC functions as an impartial arbitrator in the grievance process. The NMAPC’s
GRS found a violation based on the parties agreement (Doc. 1-3, p. 3). Both Brock and
Laborers submitted evidence and arguments for resolving the dispute that was
considered by the GRS (Doc. 1-3, p. 39-47, 54-56). The GRS decision purported to resolve
the dispute and then directed the parties on how to proceed toward resolving the
remaining issues over which it did not have arbitration authority (Doc. 1-3, p. 3). Thus,
the Court finds that both processes are arbitration.
ii.
Brock’s Challenge to the GRS Award Involves Substantive
Arbitrability, Not Procedural Arbitrability
There are two kinds of challenges to arbitrability—substantive arbitrability and
procedural arbitrability. A court may decide questions of substantive arbitrability, but
an arbitrator must decide questions of procedural arbitrability. See Piggly Wiggly Midwest
LLC v. United Food and Commercial Workers Local 1473, No. 11-cv-00604, 2011 WL 5024575,
at *1 (E.D. Wisc. Oct. 20, 2011). Substantive arbitrability questions revolve around
“whether a dispute involves a subject matter that the parties have contractually agreed
to submit to arbitration . . . .” Beer, Soft Drink, Water, Fruit Juice, Carbonic Gas, Liquor Sales
Drivers, Helpers, Inside Workers, Bottlers, Warehousemen, Sch., Sightseeing, Charter Bus
Drivers, Gen. Promotional Employees of Affiliated Indus., Local Union No. 744 v. Metro.
Distributors, Inc., 763 F.2d 300, 303 (7th Cir. 1985). On the other hand, “procedural
arbitrability refers to whether particular grievance procedures apply to a dispute,
whether the procedures have been followed or excused, and whether the unexcused
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failure to follow such procedures avoids a party’s duty to arbitrate.” Id. After it is
determined “that the parties are obligated to submit the subject matter of a dispute to
arbitration, ‘procedural’ questions which grow out of the dispute and bear on its final
disposition should be left to the arbitrator.” John Wiley & Sons, Inc. v. Livingston, 376 U.S.
543, 557 (1964).
In order for the Court to determine whether Brock’s challenge to the GRS decision
involves substantive or procedural arbitrability, the Court must determine whether the
NMA is one general agreement to arbitrate with different procedural parts for work
jurisdiction disputes and other disputes or whether the NMA has within it two different
arbitration agreements.
In the NMA, the parties agreed to two different procedures for arbitration of
disputes—one procedure for jurisdictional disputes and a different procedure for all
other disputes and grievances arising under the agreement. (Doc. 1-3, p. 12, 15). The
Court views these separate procedures as two different arbitration agreements contained
within the same NMA, rather than one general arbitration agreement with different
procedural parts. The arbitration agreements are different, there are different remedies
available under each procedure, and they provide for different arbitrators to resolve the
different types of disputes.
As an example, under the procedure for jurisdictional disputes, no “back pay or
any damages for a misassignment of work” can be awarded (Doc. 1-3, p. 13). The
procedure for disputes and grievances, however, contains no such limitation (see
Doc. 1-3, p. 15-16). As another example, under the procedure for jurisdictional disputes,
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the dispute is to be decided by “the Umpire.” (Doc. 1-3, p. 12). The procedure for
disputes and grievances, however, provides that the dispute is referred to the NMAPC
for resolution and then, if the NMAPC is unable to make a decision, to the American
Arbitration Association for resolution (Doc. 1-3, p. 15). Thus, the two procedures are in
fact two different arbitration agreements within the same NMA. Because it is the subject
matter of the dispute that governs whether the parties agreed to a certain type of
arbitration (or to arbitrate in a certain way), the Court views Brock’s challenge to the
GRS decision as being substantive in nature. This places Brock’s challenge within the
narrow area of consideration for judicial review of arbitration awards.
iii.
Brock has Stated a Claim Pursuant to Rule 12(b)(6)
Assuming without deciding that Brock’s factual assertions characterizing the
dispute as being work jurisdictional in nature and that Laborers’ members were never
trained or responsible for the scaffolding are true, those assertions plausibly suggest that
the procedure followed by Laborers to have the dispute arbitrated by the GRS was
improper. This would mean that, by following the procedure for disputes and
grievances, Laborers breached the NMA. As stated previously, according to the NMA,
jurisdictional disputes are resolved through the procedure for jurisdictional disputes
(Article I, Section 6), while all other disputes follow the procedure for disputes and
grievances (Article VI—Grievances) (Doc. 1-3, p. 12, 15). Thus, Brock has stated a
plausible claim that the GRS decision should be vacated because it was outside the
essence of the party’s agreement. The NMAPC would not have had arbitration authority
Page 11 of 17
to decide the dispute presented by the Laborers’ grievance because work jurisdiction
disputes are part of a separate arbitration agreement contained within the same NMA.
III.
Motion to Vacate (Doc. 18) and Motion to Enforce (Doc. 30)
a. Applicable Law
Section 301 of the LMRA authorizes the district courts to enforce or vacate an
arbitration award entered pursuant to a collective bargaining agreement. 29 U.S.C.
§ 185(a); see generally United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593,
593 (1960). Although neither party explicitly moves for summary judgment in order to
vacate or enforce the GRS decision, the Court finds it appropriate to utilize the summary
judgment standard here. See In re Frascella Enterprises, Inc., 349 B.R. 421, 426-27 (Bankr.
E.D. Pa. 2006) (“A motion to enforce an arbitration agreement is typically reviewed
under the standard for summary judgment found in Federal Rule of Civil Procedure
56(c).”); see also Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, 54 n. 9 (3d Cir.
1980); see, e.g. Parkland Environmental Group, Inc. v. Laborers’ Intern. Union of North America,
Laborers’ Local #477, No. 06-3238, 2009 WL 2051207, at *1 (C.D. Ill. Jul. 8, 2009) (cross
motions for summary judgment filed seeking confirmation/vacation of arbitration
award under the LMRA). Thus, disposition will be appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th
Cir. 2014) (quoting FED. R. CIV. P. 56(a)).
The allowable inquiry by a court into the validity of an arbitration award is very
narrow. Ethyl Corp. v. United Steelworkers of Am., AFL-CIO-CLC, 768 F.2d 180, 183 (7th Cir.
1985). A court may not review the merits, but may ask only whether the grievance is
Page 12 of 17
governed by the contract and whether the parties agreed to arbitrate the dispute.
“[C]ourts in such cases must give the arbitrator his customary deference; the arbitrator’s
award is enforceable so long as it ‘draws its essence from the collective bargaining
agreement,’ even if the court thinks the arbitrator misconstrued the contract.” Ethyl Corp.
v. United Steelworkers of Am., AFL-CIO-CLC, 768 F.2d 180, 184 (7th Cir. 1985) (quoting
United Steel Workers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 596 (1960)).
The issues presented by the parties require the Court to decide under which
arbitration agreement/procedure the dispute arbitrable. This determination of
arbitrability, however, also will have the practical effect of determining the merits of the
underlying dispute and the arbitration award. When the question of arbitrability and the
underlying merits of the dispute become the same question, the Seventh Circuit has
stated that “the rule that courts must decide arbitrators’ jurisdiction takes precedence
over the rule that courts are not to decide the merits of the underlying dispute. If the
court must, to decide the arbitrability issue, rule on the merits, so be it.” Indep. Lift Truck
Builders Union v. Hyster Co., 2 F.3d 233, 236 (7th Cir. 1993); see Stevens Const. Corp. v.
Chicago Regional Council of Carpenters, 464 F. 3d 682 (7th Cir. 2006).
b. Discussion
The fundamental question that must be resolved in order to determine whether
the dispute was within the GRS’s arbitration authority is whether the decision by Brock
to assign work to Carpenters instead of Laborers was a two-part wrongful termination
(or lockout) arising out of a work jurisdiction dispute as Laborers asserts or whether it
was solely a work jurisdiction dispute as Brock asserts. If it was a two-part wrongful
Page 13 of 17
termination (or lockout) arising out of a work jurisdiction dispute as Laborers asserts,
then it appears it would have been correct for Laborers to follow the procedure for
disputes and grievances (Article VI—Grievances) and for the GRS to arbitrate the
dispute. If, however, it was solely a work jurisdiction dispute as Brock suggests, then it
appears it would be improper for Laborers to follow the procedure for disputes and
grievances (Article VI—Grievances) and for the GRS to arbitrate the dispute. Instead, the
procedure for jurisdictional disputes (Article I, section 6) should have been followed.
This would then indicate that the GRS lacked arbitration authority under the NMA.
The NMA became effective on January 7, 2016 (Doc. 1-3, p. 28). On January 8,
2016, Brock notified Laborers that “as of January 8, 2016 Brock Industrial Services will be
assigning all scaffold related work to the Carpenters . . .” (Doc. 30-4). Thus, for purposes
of determining whether it is a one-part or two-part dispute, the only relevant date for the
status of the assignment of work to Laborers is January 7, 2016. Any work assigned to or
performed by Laborers’ members before January 7, 2016 would have been assigned or
performed before the NMA became effective and therefore would be outside the scope
of the controlling NMA.
The existence of a work jurisdiction dispute is agreed to by Brock, Laborers, and
the GRS (Doc. 1, ¶ 13) (Doc. 30-7) (Doc. 1-3, p. 3). What is disputed is whether there was a
wrongful termination (or lockout) as to Laborers. Bearing directly on this question is
whether Laborers’ members were assigned the scaffolding work prior to receiving notice
from Brock that such work would be assigned to Carpenters.
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Laborers asserts that, “[p]rior to January 8, 2016, Brock employed the laborers to
erect scaffolding at the Afton Chemical Co. The laborers worked alongside carpenters
from the International Brotherhood of Carpenters” (Doc. 30, ¶ 14). As evidence of this
assertion, Laborers attaches a January 8, 2016 letter from Brock to Bobby Green, the
Business Manager of Laborers’ Local 100, which states that “as of January 8, 2016 Brock
Industrial Services will be assigning all scaffold related work to the Carpenters . . . .”
(Doc. 30-4). Further, the grievance filed with the NMAPC has several hand-written notes
from multiple Laborers’ members stating in different ways that Brock hired them and
subsequently terminated them from scaffolding work (Doc. 1-3, p. 44-47).
Brock denies that the scaffolding work was assigned to Laborers in the first place
and asserts that the “dispute was plainly the direct result of a work assignment by
[Brock] to the Carpenters instead of to the Laborers.” (Doc. 18, p. 18) (emphasis added).
Further, Brock “denies as untrue the allegation and/or inference that its January 8, 2016
letter is evidence it employed laborers to erect scaffolding at the Afton Chemical Co.
prior to January 8, 2016 or that laborers worked alongside carpenters from the
International Brotherhood of Carpenters” (Doc. 31, ¶ 14). Finally, in its response to the
grievance filed by Laborers with the NMPAC, Brock asserts that “Laborers have never
been trained or responsible for erecting, modifying, or dismantling scaffolding.” (Doc.
1-3, p. 55). 4
The Court notes a seemingly contrary statement made by Brock in its response to the Motion to Dismiss
for Failure to State a Claim, that the assignment of work to Carpenters “necessarily meant that any
Laborers who had been doing the scaffold work would no longer be so engaged.” (Doc. 17, p. 4). Brock in a
later filing and using much the same language clarifies the statement as “necessarily meant that laborers
who had been doing scaffold work at the Afton Chemical Plant, if any, would no longer be so engaged.”
(Doc. 31, p. 9) (emphasis added). Although this contrary statement, when viewed with the later similar
statement adds confusion, it is not enough to assert that Brock has admitted that Laborers’ members were
4
Page 15 of 17
There are clearly disputed issues of fact which prevent the Court from
determining whether the GRS decision should be enforced or vacated. If Brock is correct
in its assertion that Laborers’ members were never responsible for or assigned the
scaffolding work, then there is presumably not a violation of Article I, Section 5 of the
NMA, and the grievance relating to the January 8, 2016 work assignment would not be
arbitrable under the procedure for disputes and grievances (Article VI—Grievances).
Under these circumstances, the GRS would lack authority under the NMA to issue a
decision
pursuant
to
the
procedure
for
disputes
and
grievances
(Article
VI—Grievances). If, however, Laborers is correct that its members were assigned the
scaffolding work and then Brock wrongfully terminated them or initiated a lockout by
reassigning the work to Carpenters, then presumably Brock would be in violation of
Article 1, Section 5, because Brock was obligated under that same section to have the
work “continue as originally assigned, pending resolution of the dispute.” (Doc. 1-3, p.
12). Such a violation would be arbitrable under the procedure for disputes and
grievances (Article VI—Grievances), and the GRS would have had arbitration authority
under the NMA to issue the decision.
In order to determine whether the GRS decision should be enforced or vacated
the Court must first determine whether scaffolding work was assigned to and then taken
away from Laborers. Because this fact is disputed and is necessary to grant either
assigned the scaffolding work. Such a conclusion would be contrary to the bulk of Brock’s assertions and
filings.
Page 16 of 17
motion, Brock’s Motion to Vacate (Doc. 18) and Laborers’ Motion to Enforce (Doc. 30) are
both denied. 5
CONCLUSION
For the reasons set forth above, the Court DENIES the Motion to Dismiss
(Doc. 15) filed by Laborers, DENIES the Motion to Vacate (Doc. 18) filed by Brock,
DENIES the Motion to Dismiss the Motion to Vacate (Doc. 26), and DENIES the Motion
to Enforce (Doc. 30) filed by Laborers. The case remains set for a Presumptive Bench
Trial in August 2017.
IT IS SO ORDERED.
DATED: March 27, 2017
___________________________
NANCY J. ROSENSTENGEL
United States District Judge
5
For clarity purposes on the docket, to the extent that Laborers wishes to file a counterclaim to Brock’s
Complaint, such counterclaim should be filed as a separate document and not buried within a Motion to
Enforce Arbitration Agreement. As Laborers’ Motion to Dismiss is denied in subsection II of this Order,
Laborers may file its counterclaim when it files its answer to the Complaint, within the time period set
forth in Federal Rule of Civil Procedure 12(a)(4)(A).
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