The opinion of the court was delivered by: ELFVIN
By its original Complaint plaintiff Laborers Local 91, Laborers International Union of North America, AFL-CIO ("Laborers Local 91") sought to compel arbitration among itself and defendants, the Building Industry Employers Association of Niagara County, New York, Inc. ("the Association") and Higgins Erectors & Haulers, Inc. ("Higgins"). The underlying dispute concerns Higgins' assignment of work on a demolition project to Local No. 9 of the International Association of Bridge, Structural and Ornamental Iron Workers ("Iron Workers Local 9"). Laborers Local 91 claims that the assignment violated the collective bargaining agreement ("the cba") then in effect
between it and the Association, to which Higgins is bound as a member of the Association. Higgins and the Association are also signatories to a cba with Iron Workers Local 9 covering the same period.
When attempts to resolve the dispute by representatives of the two international unions failed, Laborers Local 91 requested a job decision from the Impartial Jurisdictional Dispute Board ("the IJDB"). While the IJDB was considering the matter, Laborers Local 91 filed a contract grievance with the Association. The Association declined to submit the matter to the Federal Mediation and Conciliation Service ("the FMCS") or to proceed to arbitration as provided by the cba claiming that the matter was a jurisdictional dispute within the exclusive province of the IJDB. Higgins subsequently notified the IJDB that work on the project had been completed. The IJDB then withdrew from the matter without rendering a decision as to which union was entitled to the work assignment.
Laborers Local 91 then brought the instant action under section 301 (29 U.S.C. § 185) of the Labor Management Relations Act ("the LMRA") and the United States Arbitration Act, 9 U.S.C. § 4, seeking to compel the Association and Higgins to submit the dispute to the FCMS or to proceed directly to arbitration as provided by the cba.
Laborers Local 91 moved for summary judgment under Fed.R.Civ.P. rule 56 and the Association moved for an order joining additional parties. Iron Workers Local 9's international union sought intervention. By my Memorandum and Order entered August 13, 1981, I denied Laborers Local 91's motion without prejudice, ordered it to join Iron Workers Local 9 as a defendant and declined the intervention bid of the latter's international union. Now before me are Laborers Local 91's renewed motion for summary judgment and the cross-motions for summary judgment of the Association and of Iron Workers Local 9.
Laborers Local 91 argues in the alternative that either it is not bound to pursue resolution of this dispute through the IJDB or that, once that body refused to act, the only available and proper mechanism by which to resolve the dispute is the grievance and arbitration procedures provided for in its cba with the Association. The Association and Higgins argue that the IJDB is the exclusive forum in which to resolve disputed work assignments but that, if arbitration is ordered, it must include all affected parties. Iron Workers Local 9 agrees that a tripartite proceeding is the only proper mechanism for resolving jurisdictional disputes, but asserts that it cannot be ordered to participate in tripartite arbitration under the terms of its cba.
As intimated in my earlier Memorandum and Order, I consider the instant dispute to involve more than whether Higgins violated the cba in effect between the Association and Laborers Local 91. Where, as here, the dispute concerns the conflicting claims of two unions to a given work assignment, a jurisdictional dispute is presented. See Carey v. Westinghouse Corp., 375 U.S. 261, 263, 11 L. Ed. 2d 320, 84 S. Ct. 401 (1964). The task before me then is to determine the forum intended by the parties for the resolution of such disputes.
In determining the intent of the parties to a cba, the courts have sanctioned an inquiry beyond the four corners of that document. A cba is more than a private contract. It "calls into being a new common law, the common law of a particular industry or of a particular plant." Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 579, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960); see also John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 11 L. Ed. 2d 898, 84 S. Ct. 909 (1964). The United States Supreme Court has thus declared that:
"In order to interpret such an agreement it is necessary to consider the scope of other related collective bargaining agreements, as well as the practice, usage and custom pertaining to all such agreements. This is particularly true when the agreement is resorted to for the purpose of settling a jurisdictional dispute over work assignments." See Transportation Union v. U.P.R. Co., 385 U.S. 157, 161, 87 S. Ct. 369, 17 L. Ed. 2d 264 (1966).
Upon applying these principles to the construction industry, the courts have uniformly rejected the approach advanced by Laborers Local 91. They have either refused to enforce bipartite arbitration awards and directed the parties to petition the IJDB for resolution of the jurisdictional dispute or have sustained the decision of that body as binding upon the parties. See, e.g., Drywall Tapers & Pointers v. Operative Plasterers, 601 F.2d 675, 679 (2d Cir. 1979), Sheet Metal Workers, Int. Ass'n v. Los Alamos Constr., 550 F.2d 1258 (10th Cir. 1977), Local 416, Sheet Metal Workers, I.A. v. Helgesteel Corp., 507 F.2d 1053 (7th Cir. 1974), and Stone & Webster, Etc. v. Local Union No. 38, Etc., 461 F. Supp. 882 (N.D.N.Y. 1978).
Laborers Local 91 argues nonetheless that, if the parties' agreement reflects a clear intent to resolve such disputes through bipartite arbitration, they are free to do so. It further contends that the Laborers Local 91's cba with the Association reflects such an intent. Laborers Local 91 relies on the language in Stone & Webster (supra, at 892) to the effect that the Court would not sanction a partial adjudication of a jurisdictional dispute by one union, with the possibility that the other union would then seek and obtain a conflicting ruling under its grievance procedure, "absent convincing evidence that Stone & Webster [the employer] agreed to be bound in such a fashion." Conceding, arguendo, that the employer could so agree, the only evidence of such an intent on the part of the Association is contained in Article IX of the 1978-81 cba between Laborers Local 91 and the Association.
Laborers Local 91 contends that neither party has attempted to exercise its option under Article IX to reopen and consider for adoption the Plan for Settlement of Jurisdictional Disputes in the Construction Industry established by the Building and Construction Trades Department, AFL-CIO, which embodies the IJDB. Thus, it reasons that the parties never intended to be bound to the IJDB.
Whatever the intent of the court's dictum in Stone & Webster, Article IX is hardly "convincing evidence" that the Association intended to allow itself to be subjected to the risk of contrary yet binding arbitration rulings. On its face, it indicates to the contrary that the parties intended to consider seriously a plan which would protect against that very risk. Moreover, the Association vociferously denies the intent ascribed to it by Laborers Local 91. As evidenced by correspondence and contract proposals presented by it during prior contract negotiations (see, February 13, 1981 Affidavit of Ira M. J. Hoven, Exhibits E-M), the Association has consistently attempted to prevent the presentation of jurisdictional disputes to any forum other than the IJDB. That no clause embracing that body as the chosen forum appears in the cba with Laborers Local 91 is, according to the Association, solely the result of plaintiff's resistance.
Inasmuch as I am not free to resolve conflicting contractual interpretations upon a motion for summary judgment (see Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975)), the presence of such a dispute clearly prevents entry of any such judgment. Though I am inclined to grant such relief to the Association, the very ambiguity of Article IX and the absence of evidence that the Association has otherwise agreed to be bound ...