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EMPIRE EXCAVATING CO. v. AMERICAN ARBITRATION ASSN

June 29, 1988

EMPIRE EXCAVATING COMPANY, Plaintiff
v.
AMERICAN ARBITRATION ASSOCIATION and INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 542, Defendants



The opinion of the court was delivered by: NEALON

 WILLIAM J. NEALON, CHIEF UNITED STATES DISTRICT JUDGE

 Currently before the court are cross-motions for summary judgment based on a stipulation of material facts. For the reasons that follow, the court will dismiss this action for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1).

 Background

 Plaintiff Empire Excavating Company (Empire) is an employer within the meaning of section 2(2) of the National Labor Relations Act (NLRA) and section 301 of the Labor Management Relations Act (LMRA). See 29 U.S.C. sections 152(2), 185, respectively; see also document 26 of record, at para. 2. Defendant International Union of Operating Engineers, Local 542 (Local 542 or Union) is an employee organization within the meaning of section 2(5) of the NLRA, see 29 U.S.C. section 152(5), and section 301 of the LMRA. See document 26 of record, at para. 3. Local 542 represents employees in the construction industry, most of whom operate a variety of pieces of construction equipment. See id. at para. 7. Since September 1983, John Simonitis has headed Local 542's Wilkes-Barre office. See id. at para. 6.

 Historically, Local 542 negotiated a standard collective bargaining agreement with a number of employer associations through Eastern Pennsylvania and Delaware. See id. at para. 9. Empire, however, was not a member of any employer association that was bound to any regional negotiations regarding this Master Agreement. Instead, Empire, through its president, Daniel Siniawa, negotiated individually with Local 542 a labor contract that covered May 1, 1981 through April 30, 1984. See id. at paras. 10-12. Siniawa, the only representative of Empire that negotiated labor contracts with the Union, signed that agreement as president of Empire. See id.

 Prior to the expiration of the 1981-1984 contract, Siniawa orally advised Local 542 that Empire would not be bound by any Master Agreement subsequent to the expiration of the 1981-1984 contract. Because Siniawa had not provided written notice to the Union, as required under the 1981-1984 agreement, he was advised that the Union considered Empire bound by the Master Agreement. See id. at paras. 13-14 and Exhibit A. To avoid a labor dispute, Empire agreed to and signed an Agreement to run from May 1, 1984 to April 30, 1986. See id. at para. 15 and Exhibit B. That Agreement provided that it would remain in effect unless either party gave written notice 90 days prior to its expiration date. See id. at para. 16.

 By letter dated January 9, 1986, Empire advised Local 542 that it would not be bound by the results of any employee association negotiations with the Union and that Empire desired to negotiate independently for a new agreement, with Daniel Siniawa to act as primary negotiator. See id. at para. 17 and Exhibit C. Thereafter, Local 542 negotiated a new Master Agreement with a number of employee associations that was to run from May 1, 1986 to April 30, 1988. See id. at para. 22. On July 20, 1986, November 20, 1986, November 25, 1986, and December 8, 1986, the Union met with Siniawa during which time the provisions of the new Master Agreement were discussed, along with the reasons Empire could not sign that Agreement, and the parties discussed and agreed to consider various alternate terms. On December 8, 1986, Empire was advised that the Union was not agreeable to accepting anything other than the provisions contained in the Master Agreement that Empire refused to sign. See id. at para. 23. At all relevant times, however, Daniel Siniawa has offered to meet with the Union in an effort to negotiate a new contract. See id. at para. 37.

 Subsequent to April 30, 1986, the date on which the previous Agreement expired, Empire continued to employ four to five union members that it had on its payroll for a number of years and occasionally sought additional employees from a union hiring hall operated by Local 542. The 1984-1986 Agreement and the 1986-1988 Master Agreement contained identical provisions regarding the obligation of an employer to seek employees initially through the hiring hall. In addition, Empire paid contributions to various fringe benefit funds, e.g., pension, welfare, supplemental unemployment, and apprenticeship training funds, at the rate called for under the terms of the 1984-1986 Agreement -- 26.6% of gross wages -- the same rate required in the 1986-1988 Master Agreement. See id. at paras. 24-28. *fn1"

 In making contributions to the funds, Empire used monthly reporting forms supplied by the Union. These forms indicated, inter alia, the name of the employees, their social security number, their hours worked for the month, and their gross wages. See id. at para. 29 and Exhibit D. Empire also reported on the forms the amount of Union dues it continued to withhold from Union employee's paychecks and the amount of money contributed to the funds. Empire submitted the forms, along with checks to cover the fringe benefit contributions, from approximately June 28, 1986 through January 31, 1988. See id. at para. 31 and Exhibits E-1 -- E-11. The forms were signed by the Office Manager of Empire, who in no instance was Daniel Siniawa and who was neither an officer, director, or shareholder of Empire. See id. at para. 31. Instead, the Office Manager performed purely administrative duties and had no authority from Empire to sign any contracts, including labor contracts, that would bind Empire. See id. at paras. 31, 33 *fn2"

 The use of Union members, the filing of reports, and the payment of union dues and fund contributions were pursuant to the 1984-1986 Agreement, which Empire continued to maintain in a good faith gesture pending further negotiations with the Union for a new Agreement. See id. at para. 34. The 1986-1988 Master Agreement has not been signed by Daniel Siniawa or any other officer of Empire for the period of 1986-1988. Likewise, no individual collective bargaining agreement has been reached by the parties or signed by Daniel Siniawa or any other officer of Empire for the 1986-1988 period. See id. at paras. 35-36.

 On February 13, 1987, the Union filed a demand for arbitration with the American Arbitration Association seeking increased wages, annuity fund benefits, and general conformance with the 1986-1988 Master Agreement. See id. at para. 38 and Exhibit G. Empire refused to participate in the selection of an arbitrator and filed suit in the Lackawanna County Court of Common Pleas on June 17, 1987 to enjoin the arbitration proceedings and to prevent the Union "from attempting in any way to enforce any rights between said Union and the Plaintiff subsequent to April 30, 1986, until such time as a legally binding contract is negotiated covering said subsequent period." See document 12 of record, Complaint, at pp. 3-4, para. 11. The Union removed that action to this court on July 8, 1987, claiming federal question jurisdiction based on section 301 of the LMRA. See document 1 of record. An answer to the complaint was filed on July 10, 1987, see document 4 of record, and, following the collapse of ongoing settlement discussions, the case was listed for trial on the court's April 5, 1988 trial calendar. See documents 13 and 14 of record. Local 542 filed a motion for summary judgment with a supporting brief on March 1, 1988. See documents 17 and 18 of record. Empire filed its answer and opposing brief on March 16, 1988. See documents 19 and 20 of record. The parties then informed the court that they had entered into a stipulation as to all facts necessary for the court to decide which party is entitled to judgment. See document 24 of record, Motion. Plaintiff then filed a brief in support of its request for an injunction and dismissal of the arbitration proceedings, together with the stipulation of facts, and defendant filed a brief in support of its position. See documents 25, 26, and 27 of record, respectively. Both parties then filed reply briefs on May 6, 1988. See documents 28 and 29 of record. This matter is now ripe for disposition.

 Discussion

 In a labor dispute, "arbitration 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 America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S. Ct. 1347, 1353, 4 L. Ed. 2d 1409 (1960). Thus, the issue of arbitrability is "a matter to be determined by the courts on the basis of the contract entered into by the parties." Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S. Ct. 1318, 1320, 8 L. Ed. 2d 462 (1962). In interpreting a labor contract, the Supreme Court has instructed the federal courts to resolve ambiguities in favor of arbitration. Lehigh Portland Cement Co. v. Cement, Lime, Gypsum, and Allied Workers Division, International Brotherhood of Boilermakers, Blacksmiths, Iron Ship Builders, Forgers and Helpers, 849 F.2d 820, 821 (3d Cir. 1988). In fact, the Court has ...


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