In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2658

LIPPERT TILE COMPANY, INC., et al.,

Plaintiffs-Appellants,

v.

INTERNATIONAL UNION OF

BRICKLAYERS AND ALLIED CRAFTSMEN,

DISTRICT COUNCIL OF WISCONSIN AND

ITS LOCAL 5,

Defendant-Appellee.

Appeal from the United States District Court for the 

Eastern District of Wisconsin.

No. 11-cv-00412 — Lynn Adelman, Judge.

ARGUED JANUARY 23, 2013 — DECIDED AUGUST 1, 2013

Before POSNER and WILLIAMS, Circuit Judges and NORGLE,

District Judge.*

The Honorable Charles R. Norgle of the United States District Court for

*

the Northern District of Illinois, Eastern Division, sitting by designation.
2 No. 12-2658

WILLIAMS, Circuit Judge. Brothers Les and Jeffrey Lippert

own a tile installation business that employs union workers.

Some of their customers require or prefer that union workers

be employed for tile installation projects, but others prefer nonunion labor because they can be cheaper. So in 2004 the

brothers created a new tile installationcompany that employed

non-union workers solely to serve this market. Pursuant to the

governing collective bargaining agreement, the union filed a

grievance withthe joint arbitration committee (“JAC”), seeking

union benefits for the non-union tile installers working for the

new company. Afterthe JAC granted this relief, the companies

petitioned to vacate the award in federal district court, arguing

that the new company should not have been bound by the

arbitration award because it was not a party to the collective

bargaining agreement. However, the district court granted the

union’s motion to enforce the award on summary judgment,

finding that the nominally new company could be treated as

one and the same with the old company for purposes of the

agreement under the “single employer” doctrine. The companies appealed.

The companies first argue that the arbitration award is

unenforceable because the National Labor Relations Board has

never found that the non-union laborers are in the same

bargaining unit as the union laborers. They maintain that such

a finding is required to determine whether disputes concerning

the non-union workers are subject to arbitration under the

collective bargaining agreement. We do not resolve this issue

because the companies waived this argument by failing to

present it to the JAC. The companies next challenge the district

court’s finding that they are a “single employer,” but we agree
No. 12-2658 3

with the district court that the companies, which are centrally

operated by the same entity, are one and the same for purposes

of arbitrability under the contract. Finally, they assert that the

JAC was tainted because the union representative who filed the

grievance also sat on the JAC, but nothing in the contract

forbids this practice. Therefore, we affirm.

I. BACKGROUND

The following facts are undisputed. Brothers Les and Jeff

Lippert established Lippert Tile Company, Inc. (“Lippert

Tile”), a floor tile installation company, in 2000. Lippert Tile

services customers in the four-county Greater Milwaukee area.

The Bricklayers and Allied Craftsmen, District Council of

Wisconsin and its Local 5 (collectively, the “union”) represent

the tile installation workers of Lippert Tile. The governing

collective bargaining agreement (“CBA”) between the union

and Lippert Tile provided for certain benefits and wages for

the employees and prohibited Lippert Tile from “sublet[ting],

assign[ing] or transfer[ring] any work covered by this Agreement to be performed at the site of a construction project to

any person, firm or corporation except where the Employer

signifies and agrees in writing to be bound by the full terms of

this Agreement and complies with all of the terms and conditions of this Agreement.” The CBA also provided for the

creationof a joint arbitration committee, consisting of “three (3)

Employers and three (3) Representatives of the Union for the

purpose of deciding disputes, which may arise in connection

with the application of this agreement.” (In the case of a tie, the

CBA provided for referral to the Wisconsin Employment

Relations Commission for resolution.) The CBA added, “In the

event an Employer or the Union does not comply with the
4 No. 12-2658

Award of the arbitrator, the other party shall have the right to

use all legal and economic recourse.” 

Lippert Tile’s market for tile installation work includes

general contractors subject to their own collective bargaining

agreements, project owners having or wanting to use

union-represented tile contractors, and government-regulated

entities tending to use union labor due to prevailing wage

regulations (the “union market“). Over the last 10 years,

however, this market has been declining, and more customers

in the region have sought non-union tile installers, generally

because they are 25% to 45% cheaper (the “non-union market“). Because the Lippert brothers believed it was futile for

Lippert Tile to try and compete in this growing non-union

market, the brothers in 2004 created a new tile installation

company, DeanAlan, that would only use non-union workers

and compete only in the non-union tile installation market for

the same four counties. (The creation of a non-union company

for this purpose is known as “double-breasting.”) They also

created the Lippert Group, a corporate entity that would

provide management services to both tile installation companies. Subsequently, Lippert Tile continued providing tile

installation services to the union market, while DeanAlan

provided tile installation services to the non-union market in

the same area.

All three companies—Lippert Tile, DeanAlan, and the

Lippert Group—lease office and warehouse space in the same

building which is owned by the Lippert brothers. DeanAlan

also rents trucks from, and orders its supplies through, Lippert

Tile. The Lippert Group provides administrative services for

the other two companies, maintaining business records,
No. 12-2658 5

processing payroll, handling billing, and managing bank

accounts. The Lippert Group also supplies both companies

with office and warehouse staff, including salesmen and

estimators, who decide which company will bid on a project

and how much to bid. At the same time, the companies do not

share space within the building and have separate lease

arrangements (though with the same owners). They do not

share equipment. They have different corporate officers,

separate bank accounts, separate lines of credit, and separate

insurance programs. And because the whole point of creating

DeanAlan was to serve the non-union market with non-union

labor, the companies naturally have separate employees and

separate customers. 

In 2010, the union director,Jeffrey Leckwee, discovered that

DeanAlan had been created to perform non-union tile installation work in the same region, and filed a grievance against the

three companies with the JAC. He alleged that this setup

violated the CBA’s assignment provision because it essentially

assigned Lippert Tile’s work to DeanAlan workers without

giving DeanAlan workers the same union benefits. The

companies argued as a threshold matterthat the grievance was

not arbitrable because DeanAlan and the Lippert Group were

not parties to the CBA. The union responded that all three

companies should essentially be considered a “single employer,” i.e., that DeanAlan and the Lippert Group were the

same entity as Lippert Tile, and that all three were therefore

bound by the arbitrability provisions of the CBA. The companies also raised a host of procedural objections, including the

fact that Leckwee himself sat on the six-member JAC, which

allegedly biased the JAC against the companies. At no point,
6 No. 12-2658

however, did the companies argue to the JAC that the dispute

was not arbitrable because the non-union workers were not in

the same bargaining unit as the union workers covered by the

CBA. Nor does any party suggest that they were not given

ample opportunities to present arguments before the JAC.

In March 2011, the JAC upheld the grievance and adopted

the union’s requested decision and award. Without further

explanation, the JAC found that “Lippert Tile, The Lippert

Group and DeanAlan are a single employer and that the

Agreement was violated by the failure of Lippert to apply the

terms and conditions of the Agreement to DeanAlan.” It did

not say anything about whether the DeanAlan workers were

in the same bargaining unit. It ordered that DeanAlan workers

be made whole for work done since June 1, 2010, that the union

be made whole for lost dues, and that union benefits be

provided to DeanAlan workers from that point forward.

The companies together filed a petition with the federal

district court to vacate the JAC award, and the union responded by asking the court to enforce it, in the form of a

motion for summary judgment.The companies raised the same

arguments they made before the JAC, except this time they

argued for the first time that the dispute was not arbitrable by

the JAC because the aggrieved DeanAlan workers were not

part of the same bargaining unit as the union workers covered

by the CBA. The district court granted the union’s motion for

summary judgment and ordered that the award be enforced.

First, the court found that the only issue which it could decide

de novo was the “single employer” issue, because that issue

went to whether the dispute was properly subject to JAC

arbitration under the CBA, and there was no “clear[] and
No. 12-2658 7

unmistakabl[e]“ agreement by the parties (e.g., nothing in the

CBA suggesting) that only the JAC could make that threshold

determination. On that issue, it agreed with the JAC that the

companies were essentially a “single employer” and so the

dispute was arbitrable. Second, the court appeared to agree

with the companies that the bargaining unit issue had to be

resolved before the award could issue, but it did not view it as

an arbitrability question. As a result, the court declined to

decide it de novo, found that the JAC had implicitly decided

that the DeanAlan workers were in the same bargaining unit

as the union workers, and deferred to that decision because no

decision from the National Labor Relations Board (“NLRB”)

ever suggested otherwise. Third, the court rejected the companies’ argument that Leckwee’s presence on the JAC invalidated

the award, because all the CBA required was balanced

employer-union representation and it was undisputed that the

condition was met. Last, the court summarily rejected the

companies’ remaining procedural objections andargumentson

the merits, according great deference to the JAC’s resolution of

those issues in the union’s favor. The companies appealed.

II. ANALYSIS

Because this appeal challenges the district court’s

enforcement of a JAC award issued pursuant to a CBA, a brief

review of our limited jurisdiction is in order. Section 301 of the

Labor-Management Relations Act (“LMRA”) provides for

federal subject-matter jurisdiction over “[s]uits for violation of

contracts betweenanemployer and a labor organization” (such

as collective bargaining agreements), “without respect to the

amount in controversy or without regard to the citizenship of

the parties ... .” 29 U.S.C. § 185(a). As the Supreme Court has
8 No. 12-2658

explained, this provision provides federal courts jurisdiction to

enforce “final and binding” arbitration awards issued pursuant

to a CBA. Gen. Drivers v. Riss & Co., 372 U.S. 517, 519 (1963).

However, given that Section 301 essentially limits the federal

court’s jurisdiction to applying the terms of a CBA, when a

CBA provides for the submission of contractual disputes to an

arbitrator, the court “is confined to ascertaining whether the

party seeking arbitration is making a claim which on its face is

governed by the contract.” United Steelworkers v. Am. Mfg. Co.,

363 U.S. 564, 568 (1960). “[T]he judicial inquiry under s 301

must be strictly confined to the question whether the reluctant

party did agree to arbitrate the grievance or did agree to give

the arbitrator power to make the award he made.” United

Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960).

In other words, “We are responsible only for the question of

arbitrability.” United Steel v. TriMas Corp., 531 F.3d 531, 535

(7th Cir. 2008). Consequently, “a court is not to rule on the

potential merits of the underlying claims[,] ... even if it appears

to the court to be frivolous.” AT&T Techs., Inc. v. Commc’ns

Workers of Am., 475 U.S. 643, 649-50 (1986); see also TriMas Corp.,

531 F.3d at 536 (“If the parties have in fact agreed to arbitrate

their dispute, then they have bargained for the arbitrator’s

interpretation of their contract—not ours.”).

A. Bargaining Unit Argument Waived Because Not

Raised in Arbitration

The companies first argue that the dispute was not

arbitrable under the CBA because no threshold finding had

been made that the DeanAlan non-union workers were in the

same bargaining unit as the Lippert Tile union workers. As
No. 12-2658 9

they point out, other circuits have held that such a finding (in

addition to the “single employer” finding, discussed separately

infra) is a prerequisite for applying the CBA’s arbitration

provisions to non-contractual-party entities like DeanAlan and

the Lippert Group. See So. Cal. Painters v. Rodin & Co., Inc., 558

F.3d 1028, 1034 (9th Cir. 2009); Stardyne, Inc. v. NLRB, 41 F.3d

141, 152 n. 11 (3d Cir. 1994); Amalgamated Lithographers v.

Stearns & Beale, Inc., 812 F.2d 763, 769 (2d Cir. 1987); but cf.

Moriarty v. Svec, 164 F.3d 323, 334 (7th Cir. 1998) (rejecting this

argument in ERISA context). The companies furthermore

contend that only the NLRB may make such a bargaining-unit

finding. See Local 343 v. Nor-Cal Plumbing, 48 F.3d 1465, 1470-71

(9th Cir. 1994); but see Brown v. Sandimo Materials, 250 F.3d 120,

129 (2d Cir. 2001); Trs. of Colo. Statewide Iron Workers v. A&P

Steel, Inc., 812 F.2d 1518, 1526-27 (10th Cir. 1987); Carpenters

Local Union No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489, 514-

17 (5th Cir. 1982). The companies conclude that if the bargaining unit issue were appropriate for judicial determination, we

should resolve it by concluding that the DeanAlan workers

were not in the same bargaining unit as the union workers. 

We agree with the union, however, that the companies

waived all aspects of this bargaining unit argument, because

they failed to raise it in any form before the JAC. “The failure

to pose an available argument to the arbitrator waives that

argument in collateral proceedings to enforce or vacate the

arbitration award.” Ganton Techs., Inc. v. UAW, 358 F.3d 459,

462 (7th Cir. 2004). “Arbitration would not be an efficient and

cost-effective method of resolving labor disputes if federal

courts indulged late arguments that were not brought to the

attention of the arbitrator below.” Id.; see also Nat’l Wrecking Co.
10 No. 12-2658

v. Teamsters Local 731, 990 F.2d 957, 960 (7th Cir. 1993) (“Failure

to present an issue before an arbitrator waives the issue in an

enforcement proceeding.”). The companies “cannot stand by

during arbitration, withholding certain arguments, then, upon

losing the arbitration, raise such arguments in federal court.

We will not tolerate such sandbagging.” Id.; see also United Food

& Commercial Workers Local 100A v. John Hofmeister & Son, Inc.,

950 F.2d 1340, 1344 (7th Cir. 1991) (“If parties were allowed to

withhold information during arbitration, and then use it to

sandbag their opponents during enforcement proceedings,

much of the efficiency and usefulness of arbitration would be

lost.”). There is also no suggestion that the companies had no

opportunity to present such an argument, and indeed, theydid

not hesitate to present a host of other arbitrability and procedural arguments to the JAC.

This waiver rule applies equally to questions concerning

arbitrability. See Environ. Barrier Co., LLC v. Slurry Sys., Inc., 540

F.3d 598, 607 (7th Cir. 2008) (“[E]ven though the ordinary rule

is that the question whether an agreement to arbitrate exists is

one for the court, the right to a judicial determination of

arbitrability is, like many rights, one that can be waived [in

arbitration].” (citations omitted)). Of course, the companies

insist that the bargaining unit issue can only be determined by

the NLRB, not the JAC (or any other tribunal). But assuming

this is true, the companies should have then asked the JAC to

stay the proceedings pending an NLRB determination. If the

stay were granted and the NLRB ruled in the companies’ favor,

the arbitration process would have ended without wasting

time on other issues. At the very least, the companies could

have reserved an objection to arbitrability on the bargaining
No. 12-2658 11

unit issue, which might have caused the union to immediately

go to the NLRB so that such a threshold issue could be efficiently resolved at the outset. See, e.g., id. at 606 (“There is not

a hint in the record that SSI ever called this issue to the arbitrator’s attention or sought to enjoin the arbitration on the ground

that there was no agreement to arbitrate... . Anyone who

wants to object to arbitrability is entitled to make her position

known to the arbitrator and the other party; the other party

may then, if it wishes, respond with a petition for an order to

compel arbitration... and obtain a judicial determination on

arbitrability.”). For these reasons, we have repeatedly disapproved of the practice of remaining silent on an arbitrability

issue during arbitration proceedings, only to play the

arbitrability card in federal court after the party loses. See, e.g.,

Roughneck Concrete Drilling & Sawing Co. v. Plumbers’ Pension

Fund, 640 F.3d 761, 766-67 (7th Cir. 2011) (criticizing this

practice as a “heads I win, tails you lose” approach, and noting

that a party “could have consented to have Judge Judy resolve

the dispute, and would have been bound even though the

collective bargaining agreement did not authorize her to

resolve disputes”); Environ. Barrier Co., LLC, 540 F.3d at 606

(“Only after the arbitrator issued an award unfavorable to SSI

and the case wound up in court did SSI raise an objection to the

arbitrator’s authority to decide the dispute... . This is not a

tactic we can accept, for sound policy reasons. It is terribly

wasteful of the arbitrator’s time, the parties’ time, and the

court’s time... . [K]eeping the arbitrability card close to the

chest would allow a party like SSI to take a wait-and-see

approach: if it had liked [the arbitrator’s] decision, it would

have remained silent, but since it did not, it is now complaining
12 No. 12-2658

about arbitrability.”); Slaney v. Int’l Amateur Athletic Fed’n, 244

F.3d 580, 591 (7th Cir. 2001) (“Slaney had the opportunity to

show that she had never agreed to arbitrate the dispute when

she was notified of the arbitration, but she let that opportunity

pass. Slaney could not ‘sit back and allow the arbitration to go

forward, and only after it was all done ... say: oh by the way,

we never agreed to the arbitration clause. That is a tactic that

the law of arbitration, with its commitment to speed, will not

tolerate.’” (quoting Comprehensive Accounting Corp. v. Rudell,

760 F.2d 138, 140 (7th Cir. 1985))); AGCO Corp. v. Anglin, 216

F.3d 589, 593 (7th Cir. 2000) (“If a party willingly and without

reservation allows an issue to be submitted to arbitration, he

cannot await the outcome and then later argue that the

arbitrator lacked authority to decide the matter.”); Jones Dairy

Farm v. Local No. P-1236, 760 F.2d 173, 175 (7th Cir. 1985) (“[I]f

a party voluntarily and unreservedly submits an issue to

arbitration, he cannot later argue that the arbitrator had no

authority to resolve it.”). 

Although the companies did at least bring the issue of

arbitrability to the attention of the JAC on other grounds,

unlike the parties in some of the cited cases who failed to raise

the issue of arbitrability at all, we see no reason why the same

efficiency considerations do not also apply when a party raises

certain arbitrability issues before the arbitrator but not others.

Cf. Ganton Techs., Inc., 358 F.3d at 462 (rejecting argument that

“to preserve an argument for presentation in an enforcement

proceeding, a party need only present the information that

underlies the argument at the arbitration proceeding”). The

JAC should have been given a meaningful opportunity to

consider whether to hold off on an award pending an NLRB
No. 12-2658 13

determination on the bargaining unit issue. So we disagree

with the district court’s suggestion that the JAC implicitly

decided the issue; the JAC award made no mention of it. The

companies did not give the JAC that opportunity, and we find

the bargaining unit issue waived.

B. Dispute Arbitrable Because Companies Were “Single

Employer”

Second, the companies challenge the district court’s finding

that the dispute was arbitrable because all three companies

should be considered a “single employer,” thereby binding 

DeanAlan and the Lippert Group to the CBA’s arbitrability

provisions even though they were not signatories to the CBA.

Given that arbitrability is essentially a question of contract

interpretation, we review the district court’s determination of

arbitrability de novo. Int’l Bhd. of Elec. Workers, Local 21 v. Ill.

Bell Tel. Co., 491 F.3d 685, 687 (7th Cir. 2007).

“The single employer doctrine holds that when two entities

are sufficiently integrated, they will be treated as a single entity

for certain purposes.” Moriarty, 164 F.3d at 332. “To determine

whether two nominally separate business entities are a single

employer, one must examine four factors set out by the

Supreme Court: (1) interrelation of operations, (2) common

management, (3) centralized control of labor relations, and (4)

common ownership.” Trs. of Pension, Welfare, and Vacation

Fringe Benefit Funds of IBEW Local 701 v. Favia Elec. Co., Inc., 995

F.2d 785, 788 (7th Cir. 1993) (citing South Prairie Constr. Co. v.

Local No. 627, 425 U.S. 800, 803 (1976)). “No one of these factors

is conclusive; instead, the decisionmaker must weigh the

totality of the circumstances.” Id. “‘Ultimately, single employer
14 No. 12-2658

status... is characterized by the absence of an arm’s length

relationship found among unintegrated companies.’” Lihli

Fashions Corp., Inc. v. NLRB, 80 F.3d 743, 747 (2d Cir. 1996)

(citation omitted).

For essentially the same reasons set forth by the district

court, we conclude that the three companies are a “single

employer” for purposes of enforcing the arbitration provisions

of the CBA. First, we agree with the companies that when

analyzing the interrelation of operations, it is the “day-to-day

operational matters” that are the most relevant. Yet it is for that

very reason that this factor cuts against them. The same entity,

the Lippert Group, maintains business records, processes

payroll, handles billing, and manages bank accounts for both

companies, and these shared,daily operations are critical to the

smooth functioning of the project-by-project nature of both

companies’ work. More importantly, the Lippert Group

personnel make the critical decision whether Lippert Tile or

DeanAlan should make a bid on a particular project, and if so,

what to bid, as if all three companies were part of the same

organizational chart. The companies do not share the exact

same space but are housed in the same warehouse, making

shared supervision of both companies easier. The companies

like to emphasize that they had different tile installers serving

different markets, but they still served the same geographic

area and performed the exact same labor. So on balance we

find the operations to be extensively interrelated if not intertwined. 

Second, though Lippert Tile andDeanAlantechnically have

different corporate officers,the “common management” factor

looks at “actual or active control, as distinguished from
No. 12-2658 15

potential control, over the other’s day-to-day operations,”

Cimato Brothers, Inc., 352 NLRB 797, 799 (2008), and certainly

not formal job titles. See, e.g., id. (disregarding fact that someone was “president” when he had no actual management

responsibility). Because the same entity not only operates, but

also controls, the bidding process and administrative tasks for

both companies, the “common management” factor weighs in

favor of a single employer finding. To the extent that any

actual managerial functions are being performed separately,

the companies do not point us to any examples. Third, the

companies do not dispute that there was common ownership.

As for the last factor, we find that there was centralized

control of labor relations because it was the Lippert brothers’

decision in the first place to create a new company that would

give room to a new, non-union labor system solely to serve the

non-union market. See, e.g., Local 343, 48 F.3d at 1471. So while

it is not entirely clear who was responsible for day-to-day labor

relations decisions like setting wages (for the non-union

workers), hiring, or firing, the overall parameters were set in

place by the Lippert brothers when they decided to create

separate union and non-union entities. The companies’ only

argument on this factor is that centralized control of labor

relations is not present when one of the companies has no

employees, citing Cimato Brothers, 352 NLRB at 799 (“Centralized control of labor relations is not present here because

Cimato 1 had no statutory employees during the relevant time

period.”), and they point out that DeanAlan technically did not

have employees, only subcontractors. But we do not see how

Cimato Brothers helps them, because it goes on to say that this

factor “is given less weight where, as in this case, one of the
16 No. 12-2658

companies has no employees.” Id. at 799 n.9. So even if this

factor favors the companies, it only does so slightly and does

not overcome the other factors which favor the union.

In sum, we agree with the district court’s conclusion that,

“for all practical purposes, the Companies function as a single

entity.” While the distinction between the “union” and “nonunion” market is useful, the bottom line reason Lippert Group

and DeanAlan were created was to increase the Lippert

brothers’ share of the tile installation marketin the four-county

Greater Milwaukee area by providing the same service at

lower prices, just as any single company might attempt to

capture a greater share of the market by reducing prices. Of

course, we express no opinion whatsoever on whether this

type of double-breasting practice was a violation of the CBA,

because that was a merits determination by the JAC. And we

certainly express no opinion as to whether this practice is good

or bad. But solely for purposes of deciding whether the JAC

had thepower todecidewhether their double-breasting practice

was a violation of the CBA and issue a binding arbitration

award, we find, under the “single employer” doctrine, that it

did.

C. Leckwee’s Presence on JAC Did Not Violate CBA

Last, the companies argue that the award shouldbevacated

because Leckwee, the individual who filed the union grievance, sat on the same JAC that decided the grievance. They

contend that in reviewing arbitration awards pursuant to the

jurisdictional grant of Section 301 of the LMRA, federal courts

are permitted to review awards for fundamental fairness. See,

e.g., Carpenters 46 N. Cal. Counties Conf. Bd. v. Zcon Builders, 96
No. 12-2658 17

F.3d 410, 413 (9th Cir. 1996). And they suggest that we should

review labor arbitration awards for “evident partiality” just as

we do in our review of arbitration awards under the Federal

Arbitration Act (“FAA”). But we already explored at length,

and rejected, this type of argument in Merryman Excavation,Inc.

v. International Union of Operating Engineers, Local 150, 639 F.3d

286, 289-93 (7th Cir. 2011). 

Review of labor arbitration awards under Section 301 of the

LMRA is different from the review of arbitration awards under

the FAA, even if they resemble each otherin some respects. See

Merryman, 639 F.3d at 290 (“A failure to comply with a joint

committee award is a breach of a federal labor contract subject

to section 301 jurisdiction—not an FAA action.”). Unlike in the

FAA, see 9 U.S.C. § 10(a)(2) (“evident partiality” standard),

“evident partiality” is not inherently built into the Section 301

review mechanism. See Merryman, 639 F.3d at 292-93. We, of

course, agree with the companies that labor arbitration awards

are subject to Section 301 review (a basic proposition to which

their brief devotes several pages). The question is what that

review includes, and Section 301 review simply does not

include a free-floating procedural fairness standard absent a

showing that some provision of the CBA was violated. See 29

U.S.C. § 185(a) (providing federal subject-matter jurisdiction

over “[s]uits for violation of contracts between an employer

and a labor organization”). 

And we do not find any such violation of the CBA. To the

extent the CBA sought to deal with potential bias, all it

required was that the panel consist of three employer representatives and three union representatives. So long as this equal
18 No. 12-2658

representation requirement is met, nothing in theCBA prohibited the filer of a grievance from sitting on the JAC. See, e.g.,

Merryman, 639 F.3d at 292 (“Merryman agreed that disputes

would be resolved in the first instance not by a neutral arbitrator but by a committee composed of an equal number of

employer and union representatives. The agreement does not

require the representatives on the joint committee to act like

detached magistrates or neutral arbitrators. Rather, we rely on

the balanced voting membership of the joint committee to

provide fairness to the interested parties.”). It is undisputed

that the JAC consisted of three employer representatives and

three union representatives (one of which was Leckwee). That

resolves any argument concerning representation. See, e.g., id.

at 292-93 (rejecting bias argument simply because the contract’s

equal representation requirement was met).

We acknowledge that it might seem unusual (at least to

those outside the world of labor arbitration) to allow the filer

of the grievance to sit on the panel that adjudicates it. If so, it

is up to negotiating parties to make sure that a CBA prohibits

it. Cf. Baravati v. Josephthal, Lyon & Ross, Inc., 28 F.3d 704, 709

(7th Cir. 1994) (“Indeed, short of authorizing trial by battle or

ordeal or, more doubtfully, by a panel of three monkeys,

parties can stipulate to whatever procedures they want to

govern the arbitration of their disputes; parties are as free to

specify idiosyncratic terms of arbitration as they are to specify

any other terms in their contract.”). It is not for the courts to

rewrite contracts.

III. CONCLUSION

For the above-stated reasons, we AFFIRM.