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Construction Industry Employers Association v. Local Union No. 210

September 11, 2009

CONSTRUCTION INDUSTRY EMPLOYERS ASSOCIATION AND MCKINNEY DRILLING COMPANY, PETITIONERS-APPELLEES,
v.
LOCAL UNION NO. 210, LABORERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO, RESPONDENT-APPELLANT.



SYLLABUS BY THE COURT

Appeal from a judgment of the United States District Court for the Western District of New York (Richard J. Arcara, Chief Judge) entered August 21, 2008 granting petitioners' motion to stay arbitration in a dispute arising under a collective bargaining agreement. Because the underlying dispute between petitioners and respondent union is jurisdictional, and because the collective bargaining agreement at issue expressly provides that jurisdictional disputes are not subject to arbitration, we hold that the underlying dispute is not arbitrable. We also hold that the District Court properly determined that it, and not an arbitrator, should determine whether the underlying dispute was arbitrable.

Affirmed.

Per curiam.

Argued: September 2, 2009

Before: CALABRESI, CABRANES,and HALL, Circuit Judges.

In this appeal, we consider whether (1) a dispute between a construction company and labor union is "jurisdictional" and therefore not subject to arbitration under a collective bargaining agreement and (2) the District Court properly determined that it, and not an arbitrator, should decide the issue of arbitrability with respect to the same dispute.

BACKGROUND

The following facts are undisputed, except where otherwise noted. Petitioner-appellee Construction Industry Employers Association ("CIEA" or petitioner) is an association of employers performing construction work. Petitioner-appellee McKinney Drilling Company ("McKinney" or petitioner), a member of CIEA, is a construction company that specializes in, among other things, creating caissons, which are deep holes that are filled with concrete and rebar to create foundations for buildings. Relevant to this appeal, caissons may be created in two ways. When soil is sufficiently firm and stable, caisson work entails simply drilling deep holes into the ground and then filling them with concrete and rebar. However, if the soil is soft or unstable, caissons must be stabilized with steel pilings or braces.

CIEA has entered into a collective bargaining agreement ("Laborers CBA") with respondent-appellant Local Union 210, Laborers International Union of North America, AFL-CIO ("Laborers Union" or respondent). It has also entered into an agreement ("Carpenters CBA") with the United Brotherhood of Carpenters and Joiners of America, Local 289 ("the Carpenters Union").

As a member of CIEA, McKinney is bound by each of these agreements. Pursuant to them, the Carpenters Union and the Laborers Union each retain "jurisdiction" to perform certain forms of work on behalf of McKinney. If a union has "jurisdiction" over work covered in a CBA, then McKinney is obligated to hire members of the union to perform those tasks.

The Carpenters CBA provides that, when McKinney is performing certain types of work, it is bound by a collective bargaining agreement between Construction Pile Driving Employers and the Empire State Regional Council of Carpenters, who represent the Pile Drivers, Dock Builders, Divers, Trestle, Crib, and Breakwater Builders of the United Brotherhood of Carpenters and Joiners of America ("Pile Drivers CBA"). In turn, pursuant to the Pile Drivers' CBA, the following work is stated to fall within scope of work of the Carpenters Union:

3. Drive and brace piling for caisson work. Erect all concrete forms down from the cellar bottom and column base in cellar bottom, where such forms are directly attached to form a part of the capping or heading of piles or caissons. Erect all necessary shoring including ties and guardrails on elevated trestles. . . . All pile driving of . . . steel and/or concrete piles and sheeting pile for subway, sewer, tunnel and other engineering construction, also extraction of all piles, also all bracing of work listed in all subsections shall be the work of pile drivers.

10. Installation of Caissons, Piling, or Soldier Pile-A minimum of one (1) pile driver shall be placed with each drilling rig, when such rig is utilized for the installation of piling or caissons. To exclude drilling when temporary casings or permanent castings are not used.

J.A. 136, 138 (Pile Drivers' CBA, Art. IV, Secs. 3, 10) (emphasis added). McKinney has interpreted this provision of the Pile Drivers CBA to mean that it must hire members of the Carpenters Union to perform caisson work when soft or unstable soil requires that caissons be fortified with steel braces or pilings. Accordingly, in an effort to comply with the Pile Drivers ...


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