NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0249n.06

Case No. 16-4040

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 18, Plaintiff-Appellee,

v. OHIO CONTRACTORS ASSOCIATION, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: GIBBONS, SUTTON, and COOK, Circuit Judges. COOK, Circuit Judge. International Union of Operating Engineers, Local 18 (“Local 18”) filed suit to compel Ohio Contractors Associ ation (“OCA”) to arbitrate a wage-rate dispute under a collective-bargaining agreement. Relying on this court’s opinion in Local 18 International Union of Operating Engi neers v. Ohio Contractors Association , 644 F. App’x 388 (6th Cir. 2016) (“ Hydro-Excavator ”)—a case involving the same parties and contract clauses—the district court granted Local 18’s summary judgment motion and compelled arbitration. The OCA ap pealed, and we AFFIRM.

I. The Collective-Bargaining Agreement . Local 18 represents operating engineers— workers who handle the machinery used to constr uct roads and buildings—i n Ohio and NorthernCase No. 16-4040, Int’l Union of Operating Eng’rs v. Ohio Contractors Ass’n

- 2 - Kentucky. The OCA is a construction-compa ny trade group. The par ties entered into a collective-bargaining agreement (“Agreement”) that places specified equipment within the union’s exclusive jurisdiction; companies seek ing to use such equipment must hire union

members. The contract also incl udes a schedule pegging the memb ers’ pay rate to the type of equipment operated. Important here, the Agreement includes two arb itration clauses. One is triggered when a party seeks to designate a wage rate for new, unclassified equipment that is in service on a job site. The other, a general arbitration clau se, governs disputes rega rding the Agreement’s meaning, intent, and application. The Dispute. Local 18 alleges that employers are using new, remote-controlled, multiuse excavation machinery (“Brokk equipment”) on highway construction projects. The union would have an arbitrator assign a wage classification to the machinery and thereby limit its use to union members. The OCA, on the other hand, aims to avoid a wage classification and thereby retain the option of using non-union labor. The dispute implicates the Agreement’s new- equipment arbitration provision. It reads: “If equipment within the jurisdiction of the International Union of Operating Engineers is used by an Employer and there is not an appropriate classification listed under the wage schedule herein,” the parties must negotia te a pay classification, and if negotiations fail, arbitrate the dispute. According to Local 18, this wording re quires the OCA to arbitrate a wage rate because the Brokk equipment 1) is “new,” in that crews hadn’t previously used it in highway construction, 2) lies within the union’s “jur isdiction” because it “perform[s] the same function”—excavation, drilling, and demolition—as ot her machinery listed in the agreement, and 3) is “used by an Employer.”Case No. 16-4040, Int’l Union of Operating Eng’rs v. Ohio Contractors Ass’n

- 3 - For its part, the OCA argues th e inapplicability of the new- equipment clause because the Brokk equipment 1) is not “new,” as it “has been in use for excavating since at least 1990 and

has been used in Ohio in the highway heavy indus try since at least 2011,” 2) lies outside the union’s jurisdiction because it differs from other machine-types enumerated in the agreement, and 3) no “employer,” as defined in the agreemen t, uses the equipment. The OCA thus refused to arbitrate, and Local 18 moved to compel arbitration. The distri ct court compelled arbitration, reasoning that an arbitrator must determine wh ether the dispute satisfied the new-equipment clause’s newness, jurisdiction, and employe r-use requirements. The OCA appealed.

II.

We review de novo the district court’s order. Great Earth Cos. v. Simons , 288 F.3d 878, 888 (6th Cir. 2002). “[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.” United Steelworkers of Am. v. Warrior & Gulf Navigation Co. , 363 U.S. 574, 582 (1960). In general, “whether the parties have submitted a partic ular dispute to arbitration, i.e. , the ‘question of ar bitrability,’ is ‘an issue for judicial determination unless the parties clearly and unmistakably provide otherwise.’” Howsam v. Dean Witter Reynolds, Inc. , 537 U.S. 79, 83 (2002) (emphasis and alterations omitted) (quoting AT&T Tech., Inc. v. Commc’n Workers of Am. , 475 U.S. 643, 649 (1986)). We recently adjudicated a materially identi cal dispute involving the same parties and contract provisions. In Hydro-Excavator , Local 18 sought to compel the OCA to arbitrate a wage rate for members operating hydro-excavato rs, an equipment type not listed in the Agreement’s wage schedule. 644 F. App’x at 3 89–90. Like here, the OC A refused, arguing that hydro-excavators were neither new no r within the union’s jurisdiction.Case No. 16-4040, Int’l Union of Operating Eng’rs v. Ohio Contractors Ass’n

- 4 - We held that the general arbitration clause—which directs the parties to arbitrate any “dispute aris[ing] among any of the parties, (Emp loyee, Employer, Association and/or Union) to this Agreement as to its meaning, intent or th e application of its terms”—required that an arbitrator determine whether the dispute fell w ithin the new-equipment clause’s ambit. We explained that the general arbitratio n clause “applies to disputes among any of the potentially interested parties, including disput es between the OCA and Local 18.” Id. at 395. And we reasoned that the clause “applies to disputes ‘as to th e CBA’s meaning, intent or the application of its terms.’ No exceptions limit this broad coverage.” Id. (internal alterations omitted); see also id. at 397 (same reasoning applied to OCA’s argum ent that hydro-excavators were not new). We apply the same reasoning here, given th at the agreement encompasses disputes

between the “Association” and the “Union,” and given that the “meaning, intent or [] application” of the new-equi pment clause’s newness, ju risdiction, and employer-use requirements is at bar. As in Hydro-Excavator , an arbitrator, not the court, must determine whether the Brokk-equipment disagreement lies with in the scope of the new-equipment clause. The OCA’s weak counter-arguments fail to best Hydro-Excavator ’s on-point analysis. Its main contention—that Local 18 pursued arb itration only under the new-equipment clause, rather than the general arbitration clause—misses the mark. Local 18 is pursuing arbitration under the new-equipment clause. Th e general arbitration clause matte rs only in that it requires the arbitrator, rather than a court, to determin e whether the new-equipment clause bears on this dispute. The OCA’s remaining arguments—that 1) the union failed to follow a grievance procedure included in the general ar bitration clause, 2) the contract prohibits an Arbitrator fromCase No. 16-4040, Int’l Union of Operating Eng’rs v. Ohio Contractors Ass’n

- 5 - adding a new classificati on rate to the agreement, and 3) specific contract provisions trump general provisions—were a ddressed and rejected by Hydro-Excavator , 644 F. App’x at 396–97.

III. For these reasons, we AFFIRM the distri ct court’s order comp elling arbitration.