In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3271

MERRYMAN EXCAVATION, INC.,

Plaintiff-Appellant,

v.

INTERNATIONAL UNION OF OPERATING

ENGINEERS, LOCAL 150, et al.,

Defendants-Appellees.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 06 C 5160—Virginia M. Kendall, Judge.

ARGUED OCTOBER 21, 2010—DECIDED MARCH 21, 2011

Before EASTERBROOK, Chief Judge, and MANION and

HAMILTON, Circuit Judges.

MANION, Circuit Judge. The International Union of

Operating Engineers, Local 150, brought a series of grievances against Merryman Excavation, Inc. for violations

of the parties’ collective bargaining agreement. Thirteen

grievances were argued before a joint grievance committee, as provided in that agreement. Local 150 prevailed
2 No. 09-3271

on nine grievances, and was awarded a total of $96,364.72

by the joint committee. Merryman filed this action

seeking to vacate the joint committee’s awards under

§ 301 of the Labor Management Relations Act, 29

U.S.C. § 185; Local 150 counterclaimed to enforce the

nine awards. The district court granted summary judgment to Local 150. Because the parties agreed that the

joint committee’s awards would be final and not subject

to review, and there is no evidence that Merryman was

not equally represented on the committee, we affirm.

I.

In 2000, Merryman signed a Memorandum of Agreement, adopting the terms of the Heavy and Highway and

Underground Agreement, a collective bargaining agreement between Local 150 of the International Union of

Operating Engineers and the Mid-America Regional

Bargaining Association (MARBA). Local 150 represents

members in the construction industry throughout

Illinois, Iowa, and Indiana; MARBA represents employers in the Chicago area for collective bargaining in

the construction industry—Merryman is not a member

of MARBA. The agreement contained typical provisions

requiring that work be assigned to Local 150 members,

when available, and setting the wages and working

conditions. It also required grievances—defined as “any

claim or dispute involving an interpretation or application of the Agreement”—to exhaust an informal

dispute resolution procedure, culminating in a hearing

before a joint grievance committee. Such committees
No. 09-3271 3

are comprised of an equal number of representatives

from the employers’ association and Local 150. A decision

by a majority vote of this joint committee is “final and

binding on all parties and individuals bound by [the]

agreement,” and no appeal is permitted. If the joint

committee deadlocks, the agreement then allows for

formal arbitration proceedings.

Beginning in April 2006, several Local 150 business

agents initiated grievances against Merryman for violations of various provisions of the collective bargaining

agreement. Ten of these grievances were brought before

the joint grievance committee for a hearing on August 2,

2006. There were three employer representatives at the

hearing, and a number of union members. Some of the

union members were there to present grievances they

had filed as business agents, others to represent the

union on the joint committee; a few played both roles

but did not vote on grievances they each presented.

Merryman was represented by its attorney, Scott Hanlon,

despite the agreement’s prohibition on attorneys

speaking at joint committee hearings. In response to an

objection by Steven Cisco, Local 150’s corresponding

secretary and a member of the joint committee, Hanlon

indicated that he was employed by Merryman as its

“business representative” and not functioning as its

attorney at the hearing. Hanlon objected to the presence

of Local 150 member Charles August, who was a

defendant in a previous lawsuit filed by Merryman, and

objected to his voting on any grievance. Hanlon also

objected to the committee’s jurisdiction over many of the
4 No. 09-3271

particular grievances, arguing that they were untimely

filed under the terms of the agreement and that there

was no meaningful attempt to settle. After the committee

heard the first two grievances, one of the employer representatives on the committee, Joseph Vignocchi, had to

leave; the committee unanimously agreed to proceed

with only two voting members on each side. Hanlon

objected, arguing that the procedural rules required at

least three voting members for each side, but was

informed that the decision was “between the committee.” The mood of the hearing only worsened from its

inimical beginning, and Cisco and Hanlon bickered

throughout: in response to Hanlon’s questions on the

rules of procedure, Cisco told him he had a copy and

asked, “Have you graduated from first grade? Can you

read, my friend?” and additional procedural objections

elicited “I ain’t going to sit here and listen to this . . .”

from Cisco. Cisco vociferously argued in favor of the

union’s positions throughout the hearing.

Six of the grievances were relatively minor claims that

Merryman had hired non-Local 150 members when there

were Local 150 members on the out-of-work list, and

Merryman put up very little defense at the hearing; the

parties settled two of these, the committee deadlocked

on one, and Merryman was ordered to pay a total of

$1725.44 to Local 150’s assistance fund for the remaining three. Two were claims that Merryman improperly terminated Local 150 members without adequate

notice or cause—also relatively minor in terms of the

damages sought—and the committee deadlocked on one

of these claims and awarded $660.62 to the injured
No. 09-3271 5

union member in the other. The final two union

grievances, which accounted for the vast majority

of damages sought, claimed that Merryman operated

machinery without the contractually required laborers;

the union won both of these and was awarded $77,426.96

for Merryman’s ongoing failure to have a night operator

for a generator that powered a pump 24 hours a day,

and $8,046.16 for its failure to employ a second union

member as an “oiler” on a large digging machine.

That October, the joint committee heard three more

grievances against Merryman. Hanlon again represented

Merryman as its “business representative,” over Cisco’s

objection, and the two picked up their hostility right

where they had left off. Hanlon again objected to the

jurisdiction of the committee to hear the grievances

because some of the members of the committee were

biased due to the pendency of this lawsuit, already filed

in challenge to the August awards. He also objected

to the individual grievances on procedural grounds,

arguing that the union had not satisfied the pregrievance steps by making a good-faith attempt to

resolve the disputes. The joint committee resolved all

three grievances in the union’s favor by majority vote.

For one instance of hiring non-Local 150 members, the

committee awarded $451.27; for a layoff over the phone

in violation of the agreement, $549.80 (part to be paid to

the injured Local 150 member and part to the union’s

fringe benefit fund); and for running a pump at night for

a week without an operator, $7,262.52.

Merryman filed its initial complaint in the district court

in September 2006, seeking, under section 301 of the
6 No. 09-3271

Labor Management Relations Act, to vacate the six

awards the joint committee entered at the August 2

hearing. The complaint alleged violations of the collective bargaining agreement, including that the joint committee was not composed of an equal number of employer and union representatives and that the individual

grievances were marred by various failures to comply

with mandatory dispute resolution steps. In addition

to Local 150 and MARBA, and despite the fact that the

complaint sought only a declaration vacating the joint

committee awards, it named as defendants everyone

present at the August hearing. By June 2007, after several

pleading amendments, Merryman’s third and final

amended complaint also included a request to vacate

the October joint committee awards, and sought relief

against the individual defendants for allegedly conspiring to breach their fiduciary duties to Merryman

and for conspiring to defraud it in violation of the Racketeer Influenced Corrupt Organizations Act (RICO).

Local 150 counterclaimed to enforce the awards.

The following February, the district court dismissed the

RICO charge with prejudice and Merryman has not

appealed this dismissal. The parties filed cross-motions

for summary judgment on the remaining counts. Six

months later, the district court granted Local 150’s

motion and denied Merryman’s. It held that many of

Merryman’s allegations had been waived due to its

failure to raise them before the joint committee, and that

the non-waived procedural arguments were without

merit. It considered Merryman’s allegations of bias—

raised only in Merryman’s response to Local 150’s
No. 09-3271 7

motion for summary judgment—and, after its own scan

of the record for evidence of bias or partiality, it saw

no “direct evidence” of “evident partiality.” Finally,

it found the state law civil conspiracy and breach of

fiduciary duty claims preempted by section 301 because they required an interpretation of the collective

bargaining agreement. Merryman appeals.

II.

We review de novo a district court’s decision on crossmotions for summary judgment. Prate Installations, Inc. v.

Chicago Regional Council of Carpenters, 607 F.3d 467, 470

(7th Cir. 2010). But our consideration of the joint committee’s underlying decision is another matter: as long as

the parties agreed that this method of dispute resolution would be binding, it is “not open to the courts to

reweigh the merits of the grievance.” General Drivers,

Warehousemen and Helpers, Local 89 v. Riss & Co., 372

U.S. 517, 519 (1963).

In their briefs, the parties to this appeal seem to have

treated the joint committee at times as if it were a genuine

arbitration panel. Their confusion on this point is understandable in view of some of our previous opinions. See

Chicago Cartage Co. v. Int’l Bhd. of Teamsters, Local 710, 659

F.2d 825, 827 (1981); Thomas v. United Parcel Serv., Inc., 890

F.2d 909, 921 (7th Cir. 1989). In any event, a federal

court “retains the independent power to identify and

apply the proper construction of governing law.” Kamen v.

Kemper Financial Services, Inc., 500 U.S. 90, 99 (1991);
8 No. 09-3271

ISI Int’l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548,

551 (7th Cir. 2001) (“Federal courts are entitled to apply

the right body of law, whether the parties name it or not.”).

This case crystallizes the problem much more sharply

than our previous cases have. We wish to make clear

that a joint committee is not a genuine arbitration

subject to the Federal Arbitration Act (FAA) and the full

requirements of impartiality that apply to genuine arbitration. 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. See Riss &

Co., 372 U.S. at 519. The basic issue we must decide is

whether any circumstances justify Merryman’s refusal to

comply with the joint committee awards in these grievances. If not, then Merryman has breached the relevant

labor contract by refusing to comply.

Merryman’s arguments on appeal that the joint committee award should not be enforced can be grouped

into three basic contentions: first, that the joint committee hearing and the dispute resolution process as a

whole were marred by numerous procedural errors;

second, that the joint committee exceeded its authority

under the contract by ordering that awards be paid to

the union assistance fund, rather than individual

union members; and, third, that on top of its other

failings, the joint committee was biased against

Merryman and partial toward Local 150. But as we

have noted, all disputes involving the application or

interpretation of the agreement are subject to the

binding dispute resolution procedures contained in the
No. 09-3271 9

The district court held that Merryman waived judicial review

1

of many of its specific contentions when it failed to present

its arguments before the joint committee, as would be the case

if this were a review of an arbitration award. But as we

have already noted, the joint committee dispute resolution

is fundamentally different from arbitration. And just as

“permitting parties to keep silent during arbitration and

raise arguments in enforcement proceedings would undermine the purpose of arbitration, which is to provide a fast

(continued...)

agreement. The only argument that Merryman may

properly make in this litigation is that it did not

receive the procedures to which it agreed, and so we

consider its arguments in this light.

A. Grievance Procedures

Merryman contends that the joint committee hearing

was fatally flawed procedurally because Local 150

did not follow the multistage grievance resolution procedure outlined in the agreement. This process involves

informal non-binding settlement negotiations as well as

an informal binding joint grievance committee hearing

for unsettled disputes. Finally, if the joint committee

cannot reach a binding decision by majority vote,

formal arbitration begins.

Merryman first complains that the committee should not

have heard many of the grievances because the union

failed to follow the required steps before bringing the

grievances to the joint committee. A challenge to the pre- 1
10 No. 09-3271

(...continued) 1

and inexpensive resolution of labor disputes,” National Wrecking

Co. v. Int’l Bhd. of Teamsters, Local 710, 990 F.2d 957, 960-61

(7th Cir. 1993), so too would applying a strict waiver undermine the purpose of joint committee awards. Procedural

niceties are the very sort of formalities that the parties seek to

avoid when they contract to substitute informal mechanisms

for formal arbitration or judicial review. Here, no one involved has any training or expertise in legal proceedings—

lawyers for the parties are not even allowed to speak.

Merryman argues that we should follow M.J. Electric, Inc. v. 2

Int’l Union of Op. Eng’rs, Local 150, 2003 WL 21640474, at *5

(N.D. Ill., July 10, 2003), wherein the court reasoned that the

mere presence of a greater number of union representatives

at a joint committee hearing violated the plain language of an

(continued...)

grievance procedures approved by the joint committee,

however, is a “claim or dispute involving an interpretation or application of the Agreement” and therefore

subject to binding resolution by the joint committee.

Riss & Co., 372 U.S. at 519. Considered in this light,

Merryman’s first argument is readily disposed: as long

as the joint committee was properly composed, it had the

authority to resolve the dispute over whether Local 150

followed the proper pre-grievance procedures.

Merryman raises two other procedural claims that at

least superficially attack the composition of the joint

committee itself. First, it argues that there were more

union representatives than employer representatives

present at the joint committee hearing. But it has no 2
No. 09-3271 11

(...continued) 2

identical agreement requiring equal representation. We

disagree: M.J. Electric overreached by reviewing the merits of

the joint committee’s interpretation of the equal representation provision in the agreement. To reiterate: it does not

matter whether the joint committee’s interpretation is

correct, only that the parties agreed that the joint committee’s

interpretation would be binding. Moreover, Merryman has

abandoned the argument it made below that Local 150, as a

party to M.J. Electric, was precluded from relitigating the

equal representation issue. Long v. Teachers’ Retirement System

of Illinois, 585 F.3d 344, 349 (7th Cir. 2009) (“[U]nsupported

and underdeveloped arguments are waived.”).

At oral argument, Merryman’s attorney could not point us 3

to any evidence that it had even attempted to uncover in

discovery the breakdown of the joint committee vote on

each grievance, which would surely be a prerequisite to uncovering bias on the part of the majority of panel members

who voted in Local 150’s favor.

evidence that Local 150 had more voting representatives,

or even that there were an unequal number of representatives present during the executive session in which the

committee members cast their votes. So it cannot argue 3

that it was underrepresented in the ultimate vote,

merely that it disagrees with the manner in which the

joint committee handled its proceedings. A collective

bargaining agreement could lay out detailed procedural

rules for joint committee hearings, but this agreement

does not. Merryman received the process to which it

agreed.
12 No. 09-3271

Second, Merryman argues that there was an insufficient number of representatives to establish a quorum.

But the grievance provisions do not require a minimum

number of representatives, only equal representation,

and an equally composed joint committee decided that

it would proceed with only two representatives from

each side. Merryman argues that this decision was inconsistent with the committee’s own procedural rules, but

those separate procedural rules do not form a part of

the agreement.

B. Awards to Funds Benefitting Union Members

Merryman also challenges the decision by the joint

committee to designate the awards to funds maintained

by the union rather than to specific union members

themselves. It argues that this is a violation of Article I,

Section 11 of the collective bargaining agreement, in

which the employer “[a]grees to compensate the bargaining unit member who would have worked but for

the Employer’s violation of [the Assignment of Work]

Section . . . for all hours the bargaining unit member

would have worked but for the Employer’s violation.”

Once again, because this question involves an interpretation or application of the collective bargaining agreement, it is entrusted to the joint committee’s binding final decision and not subject to our review. The parties agreed that the joint committee

would have plenary power to resolve disputes arising

under the collective bargaining agreement. The agreement does not limit the committee’s authority to settle

the dispute in any manner that it finds appropriate.
No. 09-3271 13

Citing Thomas, 890 F.2d at 921, Merryman argues that we 4

have endorsed, and should now enforce, a duty of impartiality

for joint committee members similar to that of an arbitrator

or judge. But Thomas held only that while the union’s duty of

fair representation does not require the union representatives

to vote in a union member’s favor, the union representative

could not be partial against the union member. Whatever the

Thomas court meant in its obiter dictum that the union’s role

on a joint committee “is essentially that of an arbitrator,” it

surely did not mean to suggest that we apply a judicial or

arbitral standard of impartiality to joint committee members.

Such a standard would be patently unsuitable for joint committee members, who are “representatives” specifically chosen

because they are ostensibly partisans of one side to a collective bargaining agreement.

C. Bias

Finally, Merryman argues that the district court should

have vacated the joint committee awards because the

committee was biased against it. It is true that “evident

partiality” is one of the few bases on which a court

may invalidate the decision of a supposedly neutral

arbitrator. 9 U.S.C. § 10(a)(2). But we reiterate that

joint committees are not genuine arbitration and that

provisions of the FAA do not apply to these awards.

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, 4

we rely on the balanced voting membership of the joint
14 No. 09-3271

We express no view on the question of whether bias against 5

an employer by the employer’s representatives, due to collusion

or some other factor, would invalidate a joint committee award.

committee to provide fairness to the interested parties.

Absent evidence that Merryman was not equally represented among the voting members of the joint committee, it is bound by the committee’s decision. 5

In Chicago Cartage Co., 659 F.2d at 828, one of the few

cases from this circuit reviewing a claim of bias against

an employer by a joint committee, we considered

similar, if not worse, conduct by union representatives

on a joint committee and upheld the decision. Chicago

Cartage followed the parties’ lead and assumed, without

holding, that the joint committee award should be reviewed as an arbitration award and was subject to challenge on grounds of evident partiality or bias. Today

we hold that, contrary to our assumption in Chicago Cartage, joint committee awards should not be treated

as arbitration subject to the standards of the FAA. But

Chicago Cartage rested its decision on the fact that at

least one of the employer representatives must have

voted against the employer and that therefore any bias

against the employer by union representatives did not

affect the joint committee’s decision. This is entirely

consistent with our holding today: absent evidence that

Merryman was not equally represented on the joint

committee, the joint committee’s decision is binding and

not subject to appeal.
No. 09-3271 15

III.

In sum, because the collective bargaining agreement

establishes that any resolution of a grievance by

majority vote of the joint committee is “final and

binding on all parties and individuals bound by” the

agreement and not subject to appeal, we are not

permitted to review the merits of the procedure or substance of the joint committee’s decisions. Absent any

evidence that Merryman did not receive the dispute

resolution procedure to which it agreed, i.e., an equal

number of voting representatives on the joint committee,

the district court correctly granted summary judgment

to Local 150. Accordingly, the decision below is AFFIRMED.

3-21-11