Local 18 International Union of Operating Engineers v. Ohio Contractors Association
Filing
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Memorandum of Opinion and Order: Plaintiff's Motion for Judgment on the Pleadings is denied. Judge Patricia A. Gaughan on 6/3/15. (LC,S) re 24
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
International Union of Operating
Engineers, Local 18,
Plaintiff,
vs.
Ohio Contractors Association,
Defendant.
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CASE NO. 1:14 CV 1673
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
Introduction
This matter is before the Court upon plaintiff’s Motion for Judgment on the Pleadings.
(Doc. 24) The issue herein is whether the pleadings establish that a dispute between the parties is
subject to an arbitration provision in their collective bargaining agreement. For the following
reasons, the motion is DENIED.
Facts
Plaintiff International Union of Operating Engineers, Local 18 (hereafter, plaintiff or the
Union) filed this Complaint1 against defendant Ohio Contractors Association (hereafter,
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The original pleading was entitled Petition to Enforce Arbitration Agreement.
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defendant or OCA) in the Cuyahoga County Court of Common Pleas. The matter was removed
on federal question jurisdiction.
The First Amended Complaint alleges the following. Plaintiff is a labor organization
representing operating engineers who operate the equipment, technology, and machinery used in
all aspects of Ohio’s building, construction, and heavy highway industry. Defendant is a
business and trade association representing the interests of a constituency of employers engaged
in the heavy highway and utility construction industry. For over 40 years, these parties have
negotiated a continuous series of collective bargaining agreements commonly referred to in the
industry as the Highway Heavy Agreement. The current agreement, effective May 8, 2013
(hereafter, the CBA), is attached to the First Amended Complaint.
The CBA, at Paragraph 108, contains a grievance and arbitration provision to settle any
differences that arise concerning its interpretation or application. (Ex. 1 at pages 41-43) Exhibit
A to the CBA (entitled Wage Classification and Rates of Pay) identifies and provides specific
alphabetically identified rates of pay for operating engineers employed to assemble, operate,
maintain, and repair all types of equipment, technology, and machinery used in Ohio’s heavy
highway and utility construction industry. Certain types of equipment are specifically identified.
Under Paragraph 30 of the CBA, if equipment within the jurisdiction of the Union is used by an
OCA employer and there is not an appropriate classification for it listed in Exhibit A, the Union
may request that the OCA meet to negotiate a new classification and rate of pay for that
equipment. Paragraph 30 also provides that if the parties fail to reach an agreement on a new
classification and rate of pay, the dispute will be referred to Step 4 of the CBA’s grievance
procedure which provides for final and binding arbitration.
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Brokk™© Type remote controlled equipment, technology, and machinery is equipment
within the jurisdiction of the Union. Over the course of the last 12 months, OCA contractors
have employed Union members to use this equipment. There is no classification for Brokk™©
Type remote controlled equipment in Exhibit A. On January 29, 2014, the Union requested that
OCA meet to negotiate a classification and corresponding rate of pay for Brokk™© Type remote
controlled equipment. On March 18, 2014, the OCA informed the Union that it was refusing to
meet. On March 19, 2014, the Union served the OCA with written notice that in accordance with
Paragraph 30 of the CBA, it was submitting the dispute to the Step 4 grievance procedure. On
May 8, 2014, the OCA formally advised the Union that it was refusing to submit the parties’
dispute to that procedure.
In its Answer to the Amended Complaint, defendant admits that Union members have
operated the Brokk™© Type remote controlled equipment on a non-exclusive basis and that this
equipment is not specifically identified in Exhibit A. It informed plaintiff that its request for
arbitration regarding the classification and wage rate for the equipment was improper.
This matter is now before the Court upon plaintiff’s Motion for Judgment on the
Pleadings.
Standard of Review
A “motion for judgment on the pleadings under Rule 12(c) is generally reviewed under
the same standard as a Rule 12(b)(6) motion.”Mellentine v. Ameriquest Mortg. Co., 2013 WL
560515 (6th Cir. February 14, 2013) (citing EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851
(6th Cir.2001)). “For purposes of a motion for judgment on the pleadings, all well-pleaded
allegations of the pleadings of the opposing party must be taken as true, and the motion may be
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granted only if the moving party is nevertheless entitled to judgment.” JPMorgan Chase Bank,
N.A. v. Winget, 510 F.3d 577, 581 (6th Cir.2007).
Discussion
Plaintiff argues that defendant must be compelled to arbitrate the dispute concerning the
proper classification and wage rate of the Brokk equipment, technology, and machinery because
the CBA’s broad arbitration provision contained in Paragraph 108 and specific provision
contained in Paragraph 30 cover the dispute.
Paragraph 108 states, “Should a dispute arise among any of the parties, (Employee,
Employer, Association and/or Union) to this Agreement as to its meaning, intent or application
of its terms, the dispute will be settled in accordance with the following grievance procedure:...”
Three intermediary grievance steps are set forth, culminating in final and binding arbitration at
Step 4. There is no doubt, plaintiff asserts, that the Brokk dispute concerns the meaning, intent,
or application of the CBA, specifically Paragraph 30, as discussed immediately below, as well as
Paragraph 29 (“The purpose of this Agreement is to establish wage rates and conditions to apply
for all work as defined herein and for operation of all equipment which comes under the
jurisdiction of [the Union]...”), and Article VI (addressing wage rates in terms of their hourly,
daily, or weekly rates of pay.)
Plaintiff contends that Paragraph 30 confers arbitration upon the Brokk dispute by
specifically addressing disputes concerning the inclusion, classification, and wage determination
for “new equipment.” That paragraph states:
Exhibit A covering wage rates and classifications attached hereto, is made a part of this
Agreement. If equipment within the jurisdiction of the [Union] is used by an Employer
and there is not an appropriate classification listed under the wage schedule herein, either
party may request the other party to meet to negotiate a new classification and rate of
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pay. ... If no agreement can be reached on a new rate, the dispute will be referred
immediately to Step 4 of the Grievance Procedure...
Plaintiff points out that it is undisputed that the CBA does not contain a classification and
corresponding rate of pay for Brokk equipment, and that the Union attempted to negotiate the
dispute.
For the following reasons, the Court does not find that plaintiff is entitled to judgment on
the pleadings.
Defendant contends that the CBA does not provide for arbitration of the alleged dispute.2
Based on the pleadings construed in its favor, defendant asserts that Paragraph 30 does not
compel arbitration over the Brokk equipment. Defendant points out that Paragraph 30 is only
applicable if the equipment is “within the jurisdiction of the Union.” The Amended Complaint
alleges that the Brokk equipment is within the jurisdiction of the Union. (¶ 14) But, defendant
denies this allegation. (Answer ¶ 14) Accepting defendant’s averment as true, Paragraph 30 does
not apply because the equipment is not within the jurisdiction of the Union.
Additionally, under the CBA’s table of contents, Paragraph 30 is entitled, “New
Equipment Rate.” Thus, defendant asserts that Paragraph 30 applies to new equipment. Plaintiff
assumes in its motion that the Brokk equipment is new equipment because it is not listed in
Exhibit A to the CBA. However, the First Amended Complaint does not allege that this
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Defendant also points out that plaintiff filed an identical case involving a different
piece of equipment- the Hydro Excavator. Case No. 1:14 CV 1672. The cases,
involving the same parties, were filed on the same day, as were the First
Amended Complaints. On December 19, 2014, Judge Polster issued a
Memorandum of Opinion and Order granting defendant’s Motion to Dismiss.
Judge Polster determined that Hydro-Excavators were not “within the jurisdiction
of the Union” and, therefore, the OCA was not required to submit to binding
arbitration. The case is currently on appeal.
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equipment is new, and alleges that OCA contractors have employed Union members “over the
course of the last twelve months” to use the equipment.3 (¶15) Defendant’s Answer admits that
Union members have operated the Brokk equipment “on a non-exclusive basis.” (Answer ¶15)
Thus, accepting the averments of the Answer as true, other employees, not members of the
Union, have also operated the Brokk equipment. As such, the pleadings do not establish that the
Brokk equipment is new equipment subject to Paragraph 30. 4 Defendant also maintains that as
the CBA was only effective as of May 8, 2013, and the Union sent its formal request for
arbitration on January 29, 2014, “it appears” the equipment was in use prior to or around the
time the CBA was negotiated. As such, the Union could have negotiated a rate of pay and
classification for the equipment during negotiations for the CBA. The Court cannot establish
such based on the pleadings.5
Defendant points out that the Union never sought to compel arbitration pursuant to
Paragraph 108. Additionally, defendant maintains that the broad provision of Paragraph 108 is
not applicable because this dispute does not concern a “grievance.” Defendant notes that
Paragraph 108 begins at Step 1 which provides, “The aggrieved employee shall first take up
his/her grievance orally with the Employer’s Supervisor or Representative...” Moreover, the
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The original complaint, filed July1, 2014, contained the same allegation.
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Plaintiff’s further arguments regarding the issue of substantive or procedural
arbitrability will not be decided on a motion for judgment on the pleadings.
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Defendant notes that Paragraph 4 of the CBA is entitled “Jurisdiction, Work” and
does not list the Brokk equipment. On this basis, defendant asserts, it is not
within the Union’s “jurisdiction” and Paragraph 30 is inapplicable. Plaintiff
argues that defendant’s interpretation is faulty. Again, the Court will not reach
this argument at this juncture.
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Union never filed a “grievance,” but served a written notice in accordance with Paragraph 30
seeking arbitration. Plaintiff asserts that the CBA is not limited to disputes arising between
employers and employees. Nonetheless, the Answer denies the First Amended Complaint’s
allegation that Paragraph 108 is applicable to “settle any differences that arise concerning the
interpretation or application” of the CBA. (Answer ¶ 10) Additionally, plaintiff does not allege
that this dispute is a “grievance.” Thus, the Court is unable to conclude that the pleadings
establish Paragraph 108's applicability.6
Plaintiff points out that the law requires that a dispute be specifically excluded from the
broad reach of Paragraph 108 to avoid the dispute being considered substantively arbitrable.
Cincinnati Gas & Electric Co. v. Benjamin F. Shaw Co., 706 F.2d 155 (6th Cir. 1983). Plaintiff
contends that there is no affirmative language in the CBA excluding this dispute. Defendant,
however, points to Paragraph 109 which states, “The Arbitrator shall have no power to add to,
subtract from, or modify any of the terms of this Agreement.” Defendant contends that this
paragraph prohibits an arbitrator from doing what the Union seeks here- adding a new
classification and rate to the CBA. Plaintiff disputes that this is an express provision excluding
the Brokk dispute from Paragraph 108's arbitration and argues that Paragraph 109 provides
conditions only as to the scope of an arbitration award, not as to the scope of the arbitrability of
the dispute. This issue cannot be settled based on the pleadings where the Answer denies that
this dispute is an issue referable to arbitration (Answer ¶ 24) and that the dispute is subject to
Paragraph 108, Step 4. (Answer ¶ 26).
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Defendant also disputes that Paragraph 29 and Article VI are at issue, making
Paragraph 108 applicable. The Court will not decide this on a motion for
judgment on the pleadings.
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For these reasons, the Court cannot conclude that the pleadings establish that arbitration
must be compelled.
Conclusion
For the foregoing reasons, plaintiff’s Motion for Judgment on the Pleadings is denied.
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 6/3/15
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