### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No s

. 17

- 2597 & 17

- 2688
B ROCK I NDUSTRIAL S ERVICES , LLC , Plaintiff

- Appellant / Cross

- Appellee ,

v.

L ABORERS ’ I NTERNATIONAL U NION
OF N ORTH A MERICA C ONSTRUCTION & G ENERAL L ABORERS L OCAL 100 , Defendant

- Appellee / Cross

- Appellant

.

____________________ Appeal s from the Unite d States District Court for the Southern District of Illinois

. No. 1 6

- CV

- 7 80

- NJR

- DGW

— Nancy J. Rosenstengel , Judge

.

____________________
A RGUED A PRIL 11 , 2018

— D ECIDED A PRIL 8, 201 9

____________________

Before B AUER , S YKES , and B ARRETT , Circuit Judges

. S YKES , Circuit Judge

. Brock Industrial Services, LLC, is an Illinois

- based provider of industrial services, including scaffolding, painting, insulation, and shoring. I n January2 No s . 17

- 2597 & 17

- 2688

2016 it entered into a labor agreement with Local 100 of the Laborers’ International Union 1 (“the Laborers Union ” or “the Laborers” )

. The agreement requires arbitrat ion of grievances and establishes a bipartite arbitration procedure for resolving most disputes. But work

-jurisdiction disputes

— disputes over wh ether the Laborers or another unio n is entitled to perform work

— are instead sub ject to a tripartite arbitration procedure involving the company and the contending unions

. Sometime prior to signing the agreement, Brock hired the L aborers to perform scaffolding work at a chemical plant. On the day after the agreement became effective, Brock informed the L aborers Union that it was reassigning the work to the International Brotherhood of Carpenters (“the Carpenters Union ” or “the Carpenters” )

. Invoking the bipartite arbitration procedure, t he L aborers Union filed a grievance with the Grievance Review Subcommittee of the National Maintenance Agreement Policy Commit tee (“the Subcommittee”). Brock responded that the grievance involved a work

- jurisdiction dispute subject to tripartite arbitration and therefore the Subc ommittee lacked autho rity to arbitrate the matter. T he Subcommittee disagreed and sustained the grievance.
Brock filed suit under s ection 301 of the Labor Management Relations Act, 29 U.S.C. § 185, seeking to vacate the Subcommittee’s decision

. T he L aborers Union responded with a request to enforce the decision. After a flurry of motions on both sides, the district judge determined that the

1 Formally, the Laborers’ International Union of North America Construction & General Laborers Local 100.Nos. 17

- 2597 & 17

- 2688 3

Subcommittee had authority to resolve the dispute and issued an order enforc ing its decision

. Brock appealed. U nder the mistak en impression that the judge had denied the motion to enforce , the L aborers Union also appealed

. We reverse. At bottom, t h is grievance concern s which of two unions was entitled to perform the scaffolding work at the chemical plant

. That’s a jurisdictional dispute, and t he labor agreement calls for tripartite arbitration of jurisdictional disputes. Accordingly, t he Subcommit t ee had no authori ty over the matter and its decision must be vacated

. I. Background
Brock and the L aborers Union entered into a labor

a greement effective January 7, 2016. The a greement provide s: “ E xcept for jurisdictional disputes and those involving general wage rates , all disputes and grievances arising out of work performed under this [a] greement ... shall be resolved” through the pr oced ures outlined in Article VI

. Article VI requires Brock and the Laborers to submit unresolved grievances to the Subcommittee for arbitration. W e refer t o this grievance process as bipartite arbitration.
Article I of t he agreement provides a separa te procedure for resolving work

- jurisdiction disputes. A work

- jurisdictiondispute is “a dispute between two or more groups of employees over which is entitled to do certain work for an employer.” Hutter Const r . Co. v. Int’l Union of Operating Eng’rs, Local 1 39 , 862 F.2d 641, 644 (7th Cir. 1988) (quotation marks omitted)

. Under Article I of the labor contract, unresolved work

- jurisdiction disputes must be submitted to a Permanent Umpire. Because this process typically involves4 No s . 17

- 2597 & 17

- 2688

three parties

— the employer plus t he two competing unions

— we refer to it as tripartite arbitration. Prior to signing the agreement , Brock assigned several L aborers to construct scaffolding at the Afton Chemical Plant. O n January 8, 2016

— the day after the operative labor agreement became e ffective

— Brock notified the L aborers Union that its services were no longer required because the project was assigned to the Carpenters Union

. On January 11
t he L aborers Union sent a letter to the N ational M aintenance A greement P olicy C ommittee claiming that Brock violated the agreement when it rea ssigned the work to the C arpenters . On January 21 the L aborers notified the C arpenters Union of a work

- jurisdiction dispute between the unions over the project

. Invoking the bipartite arbitration proced ure specified in Article VI, the L aborers filed a grievance with the Subcommittee complaining that Brock violated the agreement by terminating the L aborers and assigning work to the C arpenters . The grievance requested reinstatement and backpay as a remedy. Brock responded that the Subcommittee had no arbitral authority over the grievance because it constitu ted a work

- jurisdiction dispute and requested that the grievance be dismissed or denied. The Subcommittee denied Brock’s request and sustained the grieva nce , finding that Brock violated Article I, Section 5 of the labor contract. That provisions states : “ D uring 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.” The SubcommitteeNos. 17

- 2597 & 17

- 2688 5

determined that Brock violated this section by ma king “ a change of assignment.”
Brock brought this suit under s ection 301 seeking to vacate the arbitral award as void because the grievance constituted a jurisdictional dispute and thus was outside the Subcommittee’s arbitral authority. A bevy of motions f ollowed. T he L aborers moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure; Brock mo ved to vacate the award; the L aborers mo ved to “ dismiss ” the motion to vacate on timeliness grounds ; and the L aborers

mo ved to enforce the award.

T he judge denied all four motions. She acknowledged that the Subcommittee lacked arbitral authority if the grievance concerned a jurisdictional dispute. She concluded, however, that if the grievance concerned both a jurisdictiona l dispute and a wrongful

- ter mination claim, then the Subcommittee could properly adjudicate the latter dispute. But a material issue of fact

— namely, whether the L aborers were ever assigned the project to begin with

— prevented the judge from resolving the case at that time

. Brock sought reconsid eration, and the L aborers moved for summary judgment. T he judge denied reconsideration and entered summary judgment for the Laborers Union , ruling that Brock had indeed assigned the scaffolding work to the L aborers and the Subcommittee’s dec ision is enforceable

. B oth sides appealed

. II. Discussion
We review a summary judgment de novo

. Hooper v. Proctor Health Care Inc. , 804 F.3d 846, 849 (7th Cir. 2015). W e b egin by addressing the Laborers’ cross

- appeal , which seeks6 No s . 17

- 2597 & 17

- 2688

review of the judge’s initial order den ying the motion to enforce the arbitral award

. The cross

- appeal rest s on the mistaken assumption that the judge never issued an order enforcing the award. But t he summary

- judgment order

c learly states t hat the “award is enforceable as a ma tter of law.” Because the Laborers prevailed, w e dismiss the cross

appeal

. W ith that out of the way, w e turn to the main event: Brock’s argument that the Subcommittee lacked the authority to arbitrate the grieva nce because it raised a work

jurisdiction dis pute

. “[A]rbitration is a matter of contract [,] and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” AT&T Techs

. , Inc. v. Commc ’ ns Workers of Am

. , 475 U.S. 643, 648 (1986) (quotation marks omitted). “ [T ] he question of arbitrability

— whether a collective

- bargaining agreement creates a duty for the parties to arbitrate the particular grievance

— is undeniably an issue for judicial determination.” Id. at 649. By signing the agreement , Brock agreed to submit so me disputes

— but not all

— to arbitration by the Subcommittee. Article VI of the agreement creates a bipartite arbitration pro cedure and vests the Subcommittee with arbitral authority. Subject to two exceptions, the bilateral procedure applies to “all dispute s and grievances arising out of work performed under [the] [a] greement involving the meaning or interpretation of any provision in [the] [a] greement.” Jurisdictional disputes are one of the exceptions. Article I creates a separate, tripartite arbitration procedure to resolve work

jurisdiction disputes and vests arbitral authority in the Permanent Umpire rather than the Subcommittee. Accord-Nos. 17

- 2597 & 17

- 2688 7

ingly, the Subcommittee exceeded its authority if the grievance raised a work

- jurisdiction dispute.
The gravamen of th e grievance i s work jurisdiction . The grievance and its supporting document s all complain that Brock improperly assigned work to the C arpenters instead of the L aborers . The Grievance Form Fact Sheet demanded that Brock “make proper assignment of work to th e L aborers’ U nion,” “reinstate the L aborers,” and compensate workers for “lost wages and benefits.” Indeed, t he Subcommittee sustained the grievance because Brock “made a change of assignment.” In other words , the L aborers complained ( and the Subcommittee found ) that Brock assigned work to the wrong union. That’s the definition of a jurisdictional dispute. T he Subcommittee therefore had no authority to arbitrate the grievance. The contract required tripartite arbitration in which the competing unions and th e employer could be heard.
Our previous decisions amply support this conclusion . In Local 416, Sheet Metal Workers International Ass’n v. Helgesteel Corp. , 507 F.2d 1053 (7th Cir. 1974), Helgesteel Corporation (a contractor) and the S heet M etal W orkers were parties to a labor contract that provid ed for tripartite arbitration of jurisdictional disputes in Article XI and bipartite arbitration for almost all others in Article X

. Id. at 1054

– 56. A dispute arose when Helgesteel reassigned work to an I ronworke rs ’ union . The Sheet Metal W orkers filed a grievance under Article X complaining about this reassignment; the arbitrator sustained the grievance and awarded damages. When Helgesteel refused to pay, the Sheet Metal W orkers filed suit in federal court to enf orce the award. Helgesteel told the I ronworkers it would likely need to give the work back to8 No s . 17

- 2597 & 17

- 2688

the Sheet Metal W orkers , so the I ronworkers filed their own grievance, which the arbitrator sustained. Id. The I ronworkers then filed suit in federal court seekin g to compel the Sheet Metal W orkers and Helgesteel to submit the entire controversy to tripartite arbitration. Id

. at 1055.
We held that the entire controversy constituted a jurisdictional dispute requiring tripartite arbitration. Id. at 1057. The Sheet Metal W orkers insisted that the agreement permitted them to seek damages under the bipartite process of Article X even if tripartite arbitration was also required under Article XI

. Id. at 1058. W e rejected that argument, explain ing that such an inter pretation of the contract “would allow inconsistent final arbitration awards; the national joint board may say that the work should be assigned to the ironworkers while the local joint board has awarded damages to the sheet metal workers.” Id

. Likewise, in William Charles Construction Co. v Teamster s Local Union 627 , 827 F.3d 672 (7th Cir. 2016), we confronted a similar agreement featuring bifurcated arbitration procedures. The William Charles Construction Company performed work on a highway expansion for t he State of Illinois. Id. at 674. During construction, a dispute broke out between the Teamsters and the I nternational Union of Operating Engineers Local 649 over who was entitled to operate the trucks required for the excavation work. The Teamsters initiated tripartite arbitration, arguing that the work had been improperly assigned to the engineers. The arbitrator ruled in the Teamsters’ favor but awarded no backpay or damages. Id. The Teamsters then filed a second grievance under bipartite arbitration, complaining again of the improper assignment but this time seeking damages. Id.Nos. 17

- 2597 & 17

- 2688 9

at 676. The second arbitrator also sided with the Teamsters and awarded lost wa ges and benefits. Id. at 677. The c ompany filed suit seeking a declaratory judgment that the second award was void. Id. We agreed that the second grievance was not arbitrable because it was jurisdictional in nature and therefore not subject to bipartite ar bitration. Id.
So too here

. T he L aborers Union complain s that Brock improperly reassigned the project to another union , so the grievance must be resolved in tripartite arbitration. A llowing the Laborers to seek damages through bipartite arbitration could p roduce “ inconsistent final arbitration awards, ” Helgesteel , 507 F.2d at 1058, so the Subcommittee lacked authority and its award must be vacated

. This conclusion accords with the reasoning of cases in which we declined to find a jurisdictional dispute reserved for tripartite arbitration. For instance, in Hutter v. Local 139 , 862 F.2d 641 , Hutter ( a general contractor ) had a labor agreement with the International Union of O perat ing Engineer s ( “the Operators” or “the Operators Union”)

. Id. at 642. The agreement g ave the O perators exclusive jurisdiction over most forklift jobs in Wisconsin ; it also provided that work could be subcontracted only to signatories to the agreement. When Hutter was awa rded work on a prison contract in Oshkosh , it subcontracted the masonry work to BDI, which was not a signatory to the agreement. BDI thereafter assigned forklift duties to the Wisconsin Laborers District Council and Laborers Local Union No. 1086 rather tha n the O perators . The O perators Union submitted a grievance to bipartite arbitration , complaining that Hutter had improperly subcontracted the work to a nonsignatory

. Id.10 No s . 17

- 2597 & 17

- 2688

The arbitrator agreed and ordered backpay, and the Operators filed suit in federal cou rt to enforce the award. Id. at 643. Hutter argued that the O perators ’ grievance was really a “d isguised jurisdictional dispute ” su bject to tripartite arbitration and that the bipartite arbitration award should be vacated. Id. W e disagreed, conclud ing that the subcontracting grievance “was a di stinct non

- jurisdictional claim ” because it did not turn on who was ultimately assigned the work. Id. at 644. For example, BDI could have assigned the work to the O perators , and i n that case there would have been no jurisdictional dispute even though Hutter violated the subcontracting provision. Id. Because the subcontracting dispute was nonjurisdictional, the arbitrator had the authority to resolve the grievance under the bipartite procedure. Id. at 645. Although Hutter held t hat the dispute in question was nonjurisdictional, its reasoning supports the opposite conclusion here

. We emphasized in Hutter that the subcontracting grievance “arose independently” of the work assignment; its validity was “not dependent up on the identity of the party that ultimately performed the forklift work.” Id. at 644. In contrast , here the L aborers ’ grievance is entirely dependent on the work assignment. Under the reasoning in Hutter , the L aborers ’ grievance is really just a “disguise d jurisdictional dispute.” Id. at 643.
Our conclusion finds additional support in Miron Construction Co. v. International Union of Operating Engineers, Local 139 , 44 F.3d 558 (7th Cir. 1995). The facts there a re strikingly similar to those in Hutter . Miron (a general contractor) signed a labor agreement granting the Operators Union exclusive jurisdiction over forklift jobs in WisconsinNos. 17

- 2597 & 17

- 2688 11

and stipulated that work could be subcontracted only to signatories to the agreement. Id. A dispute arose when Miron twice subcontracted work to nonsignatories, each of which assigned forklifting work to the Wisconsin Laborers District Council

. Id. at 561. The O perators filed grievances under the bipartite procedure complaining that Miron had violated the subcontracting provis ion. The L aborers District Council filed its own grievances to resolve the proper work assignment and threatened to strike. This threat got th e NLRB involved, which held a § 10(k) hearing to resolve the jurisdictional dispute. The Board eventually awarded the first project to the L aborers District Council

. Id. Miron filed a complaint in federal court seeking tripartite arbitration. Id. at 561

– 62. We affirmed the district court’s denial of that relief . While the L aborers’ grievance concerned work jurisdicti on, the O perators’ grievance alleged only a subcontracting violation. And under Hutter a subcontracting dispute is distinct and independent of a jurisdictional dispute. Id. I n a subcontracting grievance, “[t]he identity of the employees who ultimately perform the work is irrelevant

. ” Id. at 566 (citing Hutter , 862 F.2d at 644). A subcontracting grievanc e does not conflict with a work

- jurisdiction awardso long as there is no “demand that the subcontractor reassign the work

... . Since the subcontractor ha s complete control over which union actually performs the work, maintenance of an action against the general contractor cannot be viewed as a veiled attempt to force a reassignment of the work.” Id.
Miron too is factually distinguishable from this case , t hough like Hutter its reasoning supports our conclusion. I n Miron we focused on whether the bipartite proceeding could12 No s . 17

- 2597 & 17

- 2688

generate an award that conflicts with the resolution of a jurisdictional dispute. A bipartite arbitration award is valid so long as the g rievance “cannot be viewed as a veiled attempt to force a reassignment of the work.” Id. Here the L aborers explicitly attempted to force reassignment

— the union demanded that Brock “make [a] proper assignment of work [back] to the Laborers’ Union. ”
One case cut s in the opposite direction. In Alberici

– Eby v. Local 520, International Union of Operating Engineers , 992 F.2d 727 (7th Cir. 1993), we affirmed awards entered in bipartite arbitration for improper work assignment. Alberici

– Eby ( a general contractor ) hired six unions to construct a lock on the Mississippi River in Illinois

. Id. at 728. The unions made competing claims to each part of the work , and Alberici

– Eby did its best to divide the work fairly

. Id. at 729. After the project was completed, t wo uni ons

— the E ngineers and the L aborers

— filed separate grievances under their respective collective

- bargaining agreements alleging that Alberici

– Eby had improperly assi gned their work to other unions. Alberici

– Eby responded that the grievances raised jurisdicti onal disputes , so the arbitrators had no authority to hear them. Id. O ne arbitrator heard the E ngineers ’ grievance and decided in their favor , and a second arbitrator heard the L aborers ’ grievance and refused to stay the proceeding. Alberici

– Eby then filed suit in federal court asking that the judge set aside the first a r bitrator’s award, stay the proceeding before the second arbitrator , and require any unions seeking relief to submit to multiparty arbitration to settle the jurisdictional dispute. Id.
We denied Alberici

– Eby ’s request

. We first noted that Alberici

– Eby failed to timely invoke the multiparty arbitra-Nos. 17

- 2597 & 17

- 2688 13

tion mechanism even though it “was on notice that it faced the strong possibility of conflicting arbitral awards. ” Id. at 730. We then determined that the first arbitrator had authority to resolve the E ngineers ’ grievance. Id. at 733. The relevant labor agreement created a separate arbitration proc ess for jurisdictional disputes , but we noted that the agreement

“ [did] not tell us whether the subjec t of the grievance ... was or was not a jurisdictional dispute.” Id. However, the agreement provided that “any difference or dispute arising out of the interpretation or application of any of the provisions contained in th [e] [a] greement” wa s to be decided b y an arbitrator. Id. The agreement further provide d that the E ngineers had exclusive jurisdiction over the relevant work,

so we concluded that the dispute “ar[ose] out of the interpretation or application of the [ ag reement ] .” Id. We also refused to stay the proceedings before the second arbitrator , again emphasizin g that Alberici

– Eby failed to timely invoke multiparty arbitration, so it “would be manifestly unjust to deny the L aborers an opportunity to be heard by way of bipartite ar bitration.” Id. at 734.
Alberici

– Eby is hard to reconcile with Helgesteel , Hutter , Miron , and William Charles

. The grievances con cerned work

assignment disputes, but we permitted bipartite arbitration to proceed. We based our decision in part on the langua ge in the agreement between Alberici

– Eby and the E ngineers , but that language cannot be meaningfully distinguished from virtually identical language in Helgesteel

. Compare Alberici

– Eby , 992 F.2d at 733 (providing for bipartite arbitration over “any differe nce or dispute arising out of the interpretation or application of any of the provisions contained in th [e] [a] greement”) with Helgesteel , 507 F.2d at 1055 (providing for bipartite arbitration over any “[g]rievance of the [e] mployer14 No s . 17

- 2597 & 17

- 2688

or the [u] nion [] arising out of interpretation or enforcement of th [e] [a] greement”).
Because Alberici

– Eby is an obvious outlier , we limit the

case to its peculiar facts. W e emphasized there t hat the contractor waited to o long to request multiparty arbitration

. That defe ated the purpose of the multiparty arbitration process, “which was carefully designed to produce a speedy resolution of jurisdictional disputes in order to permit work to be properly allocated before that work is performed.” Alberici

– Eby , 992 F.2d at 731. The mistake was inexcusable in light of “the strong possibility of conflicting arbitral awards” when the unions filed their separate grievances. Id. at 730. Moreover, the project had already been completed. As a consequence the multiparty arbitration would have done little good: “ [T] he work ha[d] already been performed,” andthe multiparty procedure had “no authority to award damages for misassigned work.” Id. at 730 n.2. We specifically highlighted these facts when we refused to stay arbitration of the L ab orers ’ grievance. Id. at 734 (“In

... light of Alberici

– Eby ’s failure to move in a timely fashion to achieve multiparty arbitration (assuming that such was available), it would be manifestly unjust to deny the L aborers an opportunity to be heard by way of bi partite arbitration.”). None of these circumstances are present here. The Laborers Union notified the C arpenters of the work

- jurisdiction dispute ten days after it filed its bipartite grievance

. And Brock challenged the propriety of bipartite arbitration at the earliest opportunity. The district judge offered two reasons to affirm the arbitral award but n either holds up under the caselaw we’ve just surveyed . First, the judge reasoned that becaus e severalNos. 17

- 2597 & 17

- 2688 15

L aborers were already working on the project , removing th ose workers from the job gave rise to a wrongful

termination claim distinct from the jurisdictional dispute. Not so . The L aborers were terminated because the work was assigned to the C arpen ters ; a f inding of wrong ful terminat ion necessarily implies that the work was misassigned . T hat puts th is grievance squarely on the work

- jurisdiction side of the line . As such, it was subject to tripartite arbitration. Second, the judge held that the griev ance arose out of Article I, S ection 5 , which provides a separate contractual basis for bipartite arbitrability. The provision in question
states : “ D uring 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, pen ding 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 canbe separately arbitrated without interfering with a jurisdictional dispute. Suppose for a moment that the L aborers and the C arpenters submitted a jurisdictional dispute to tripartite arbitration , and t o pressure Br ock into taking its side, the L aborers Union called a strike, prompting Brock to file a grievance under S ection 5. It would be completely consistent for one arbitrator to award the work assignment to the Laborers and another to sanction the Laborers for in itiating a strike. Neither award would call the other into question.

But b ipartite arbitration was not appropriate just because the L aborers labeled the grievance as one arising under Section 5. W e look instead to the substance of the grievance

. And in substance, this grievance is a work

- jurisdiction16 No s . 17

- 2597 & 17

- 2688

dispute. As such, it was subject to tripartite arbitration , and the Subcommittee lacked arbitral authority.

R EVERSED ; C ROSS

- A PPEAL D ISMISSED

.