Tripartite arbitration and work jurisdiction disputes

Reversing the District Court, the Seventh Circuit has found that a dispute between Brock Industrial Services and two of its unions (the Carpenters and the Laborers) was a jurisdictional dispute excluded from arbitration under the Laborer's cba with Brock. Under the applicable cba, work-jurisdiction disputes were subject to a separate tripartite procedure. Brock Industrial Services, LLC v. Laborers International Union

Brock had initially assigned certain scaffolding work to employees represented by the Laborers. Shortly thereafter, however, it reassigned that work to employees represented by the Carpenters.

The Laborers filed a grievance under its own cba, and pursued that dispute through the dispute resolution procedure under the agreement. The Grievance Review Subcommittee of the National Maintenance Agreement Policy Council rejected Brock's claim that the matter was one of jurisdiction, outside the authority of the Subcommittee, and found that Brock had violated the cba when it reassigned the work to the Carpenters.

Brock sought to vacate that decision.The District Court rejected that effort, concluding that while the Subcommittee lacked authority if the grievance concerned a jurisdictional dispute, since the grievance concerned both a jurisdictional dispute and a wrongful termination claim the Subcommittee could properly decide the later dispute. The District Court's opinions can be found here and here.

Reversing, the Seventh Circuit concluded:

The gravamen of the grievance is work jurisdiction. The grievance and its supporting documents all complain that Brock improperly assigned work to the Carpenters instead of the Laborers. The Grievance Form Fact Sheet demanded that Brock "make proper assignment of work to the Laborers' Union," "reinstate the Laborers," and compensate workers for "lost wages and benefits." Indeed, the Subcommittee sustained the grievance because Brock "made a change of assignment." In other words, the Laborers complained (and the Subcommittee found) that Brock assigned work to the wrong union. That's the definition of a jurisdictional dispute. The Subcommittee therefore had no authority to arbitrate the grievance. The contract required tripartite arbitration in which the competing unions and the employer could be heard.

The Circuit distinguished earlier cases involving claims that an employer improperly subcontracted work to a employer who assigned the work to a different union, finding a subcontracting grievance "a district non-jurisdictional clam" not dependent on the identity of the employees who ultimately performed the work. Hutter v. Local 139, 862 F.2d 641 and Miron Construction Co v. International Union of Operating Engineers, Local 139, 44 F.3d 558. It found a third case (Alberici-Eby v. Local 520, International Union of Operating Engineers) "hard to reconcile" but noted in that case that the employer had failed to timely invoke the tripartite procedure.

In light of its analysis, the Court rejected the District Court's conclusion that the Laborers could pursue their bipartite grievance because several Laborers, who had been working on the project, were removed from the assignment, noting that this claim "necessarily implies that the work was misaligned" and thus "squarely on the work-jurisdiction side of the line."

It also rejected the lower court's conclusion that the Laborer's reliance on specific language in its cba provided the basis for an independent arbitration, noting:

The provision in question states: "During the existence of the [a]greement, 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."
Grievances arising under this provision are indeed subject to bipartite arbitration. Like the subcontracting provisions in Hutter and Miron, a dispute under this provision can be separately arbitrated without interfering with a jurisdictional dispute. Suppose for a moment that the Laborers and the Carpenters submitted a jurisdictional dispute to tripartite arbitration, and to pressure Brock into taking its side, the Laborers Union called a strike, prompting Brock to file a grievance under Section 5. It would be completely consistent for one arbitrator to award the work assignment to the Laborers and another to sanction the Laborers for initiating a strike. Neither award would call the other into question.
But bipartite arbitration was not appropriate just because the Laborers labeled the grievance as one arising under Section 5. We look instead to the substance of the grievance. And in substance, this grievance is a work-jurisdiction dispute. As such, it was subject to tripartite arbitration, and the Subcommittee lacked arbitral authority.