simplest terms is whether employees are covered by a collective bargaining agreement are entitled to be paid one of two wages that are expressly contained in that agreement and this arbitration clause states that grievances are limited to interpretation or application of express provisions of the c p a the grievance in this case the robots in the summer of twenty eight seen when several hail storms damaged roofs on four carson a instead of the general maintenance workers wage the company refused to arbitrate so the union filed a petition to compel arbitration the crux of the company's argument is that there is no express provision requiring b m w use to be paid roofers wages when performing refers work that is absolutely untrue while there is nothing in the c b s specifically stating those exact words the right to be paid the proper wage for the work that they perform is contained in multiple express provisions in the c v a but the company in the district court of both done here is they've described the workers rights to be paid for the work that they which i'm sorry which words of the c b a need interpreted as a room for the well the it would be the express provisions the the wage schedule contains the the class of it is for the workers and there's a separate classification for general maintenance workers and there is a separate  the arbitrator would interpret whether the refer or the employees performing that job are entitled to roofers wages additionally there's specific language expressed language in article thirty and article twenty eight dollars of the collective bargaining agreement the article thirty states that th that we're having trouble looking i i thought that it's the department of labor's responsibility exclusive responsibility to tell to determine whether someone is being paid under the proper classification and i roamed about that yes your honor i have i believe that with all due respect you are the i believe it's the parties the union and the company who are responsible to set what agency under the collective bargaining agreement under the davis bacon act the to collectively bargain wages the davis bacon act sets a floor that workers can be paid less than but if they're entitled to be paid more under the collective bargaining agreement then that is what would be considered the davis bacon wage so it but it's not the amount of the wage for talking about it's the proper classification there's agreement that if it's classified as roofer you get a certain wage under the contract if it's classified as general maintenance you get paid a certain amount under the contract and the department of labor has to approve this there's at least one case out there where this same sort of dispute the by the contractor and the court said well we need to refer that to the d l l part of labor to decide that issue it seems to me that even if language might arbitration language mind to fight here it's it's not really that clear that when these specific issue is whether the worker is properly classified under davis bacon that that's traditionally everything i've seen suggests that's for the department of labor to decide which would certainly suggest it's not for right but that's not we're talking about there's no dispute about like or any of these as they should it doesn't defer to the to the collective bargaining agreement on classification as it how how the different classifications should be decided that's correct your honor but the parties the and the intent of the agreement is to under article thirty of the collective bargaining agreement the agreement when executed shall be deemed to define the wages hours race of pay and conditions of employment and in order to enforce the terms of this agreement arbitrator is specifically contracted to determine  where did this language come from was it negotiated specifically for this contract or is this boilerplate that's available i'd be interested in knowing whether the parties had an understanding of how that negotiated which was approximately twenty years ago but the parties have negotiated it every three years and that the language is just it's the same as far as i'm specific skill differential contract that seems to be designed to address this very situation why why wouldn't the you know why would the parties of negotiated that contract if it was actually covered by the collective bargaining agreement and in any of that why would we expect the specific contract and a control over the general language that you've been pointing to well the skill differential increases a company policy that was not negotiated and the collective bargaining agreement precedence over any kind of future and and energy polymers versus tackett a supreme court case under the cardinal principle of contract worker taishan intention of the parties to be gathered from the whole instrument must prevail and in this case the intention of the parties is that if the proper and fair wage to be paid employees can be ascertained within the or corners of the collective bargaining agreement when the company refuses to trade the grievance it is you it's unilaterally dictating terms and conditions the parties collectively bargained relationship doesn't that bring us back to judge hearts is this person that somebody has to determine what day it was bacon were is and that's not something that the arbitrator's can do well i believe that it is because the davis bacon act two is specifically incorporated by reference and so the collective bargaining agreement in article twenty eight dollars so i believe it would be within the bargaining agreement and an arbitrator wouldn't be required to add or subtract or modify the terms of the collective bargaining agreement to determine whether davis faith davi i believe that there probably is your honor but when the parties negotiated this agreement the purpose was so this could be resolved through the four corners of the and it's easy to get in tangled in the companies or unions that but the most important tenet to remember is that if there is any dispute whether a grievances are bitch or arbitrary will all doubts must be resolved in favor of it seems a narrow narrow or concept and some of the cases you cited in your report makes this broad rather  narrow i believe that is a narrow arbitration clause but nonetheless it requires express provisions and that in the c v a does have expressed provisions for case before this before this unless it can stay with positive assurance that the arbitration provision is not susceptible to an interpretation that covers the dispute in this case i believe there are at least three express provisions that it's got to cover services as you now know they are the facilities maintenance contractor down at fort carson in coral springs i guess the for folks who is in springs would say up in colorado springs but the contract there is governed by the service contract act and a number of its employees are covered by a collective bargaining agreement with local one hundred and thirteen the underlying case and this appeal stems from a dispute over work that was performed by general maintenance workers g properly characterized as a grievance you have knowledge that i don't acknowledge that and i've been arguing since day one with local one hundred and thirteen that this isn't a grievance as defined by the collective bargaining agreement to judge hart's point earlier whenever you're talking about whether work to be properly classified is davis bacon work versus we're going to the service contract act that's an issue for the department of labor and we've been suggesting to the immuno along that they should have gone to the department of labor the judge hertz also said you know could this have been raised in front of a deal well absolutely it could have been and in fact the parties have you handled these types of issues in front of the department of labor in the past mr johnson mr johnson i see a lot of each other as you might expect and we regularly exchange e mails and letters and did pretty specifically on this case and i specifically laid out that we didn't think th in his underlying decision granting a summary just this was nothing more than patching holes in a roof with a spackling i duct taped to the end of a broom handle and that type of work is squarely within the job that squarely fall into what you know a common understanding and worked on by a river because if it didn't involve any skilled labor riffing work by definition is it is skill skilled labor the definition of a g m w's job description in the s c a specifically excludes the type of activities that were performed here it gives a good analogue and that is that if you're plastering a ceiling fredrickson the reason i asked mr johnson if this is something that could have been taken to the d l l is because i didn't find any specific authority for that sort of decision making by the deal use you say though that it's been done in the past june is there some regulation some guidance something from the d l l that says we will we will hear disputes about  administrator of the department of labor labor overseeing prevailing wage issues and then if you look at one point sects one dollar beat it's the contracting officer who is  charged with the responsibility of figuring out whether to work on a particular government site like this one or carson is partly classified as purely service contract work or davis bacon work and so it the way that it works in practice is that the contractor and the in the government's contracting officer work together to figure out whether it works if the class of got a spine is one of the other that's why article twenty eight dollars which the union relies on is written the way that it is and it provides the company with a cry gives perform davis bacon work so it isn't a process of communication or discussion between you have to do or contract in government the unfortunately i'm i'm not a student of to read all that into those sections i'm not saying they're not there but you have any authority that talks about the sort of refereeing by the contracts are now between i b e w and a electrical contractor she needs is something very different in that they certainly have electricians but they have other tradespeople as well as  variety of other positions that don't commonly fit within that the that the jurisdiction of the international brotherhood of electrical workers so this is this this  anything specific about this is researched in my chambers for cases that had that language in arbitration contracts and the great majority of those decisions read those read those classes quite rather broadly and in a way that would require arbitration in this case i think there's really only one solid case in your favor on that among the ones we found which was seven or eight i think so i was wondering if you had anything that would lead us in another direction that these are not presidential decisions in abundance as a matter of law but they might well show what the parties understood this language to mean because this is the way to been interpreted well what i would say to your honor is  babcock recognizes mr johnson recognized himself this morning the type of clough's here is a is regarded as a narrowly drawn plus and the practical and legal impact of that is that if it is narrowly drawn and i don't think there's any dispute that it is then certain things happen for example you look to the four corners of the agreement to determine whether the dispute is arbitrary but the difference here is that the union has gone beyond the contract and argued not only davis bacon matters but also prevailing wages they even attached to their summary judgment brief the affidavit of a business manager from a completely separate union to suggest that this was reversed work as opposed to labor's work and and on top of that there is this this this issue of the service contract act and what that definition provides and last but certainly not least the s d i policy to judge him referred to a little while ago that you have to look to to to to resolve the the primary dispute between the parties here which is what mechanism is there to take a general maintenance worker who's making the g m w wage under  the contract up to a journeyman roofers rate either under the davis bacon act or the collective bargaining and the only source for resolving that you only mechanism as is just  there is no provision in the c p a that addresses out how you do that and and without my plum think that i took the deposition he volunteered that the reason he the reason he was reading the issue the reason why it come up mr bradley to reach the decision that he did and and that and we say that that he correctly did that because the union itself introduced all of these all of these pieces of information i think what happened there your honor is that the company would go through an analysis of the s d i policy to figure out what that work was consistent with the descriptions of the jobs in the service contract and why they would also makes a difference whether you supply it as one or the other if it's just repair work more often than not that is purely covered by the service contract and so it would have resorted to its own policy there are steps in the policy to be attached that it's it's  in the record i think it's a appendix to twenty two that shows the steps that the company goes through they do it in advance of the work being done for obvious reasons because they've built the contract they're confined to charge the rates there in the contract otherwise it's fraud waste and abuse against the government and so they would have done that here if this is not a you discussed had had presented itself i suspect these weren't single groups these were these are flat roofs and the