only the negotiating agent for member employers. Answer para. 6. The Agreement at 1 confirms that "the liability of [CAEP] shall be only that of a Negotiating Agent, acting without liability for the acts of its individual members." As the present dispute concerns only an act of defendant D'Angelo, summary judgment against defendant CAEP must be denied.
Defendant D'Angelo, unlike CAEP, is a member employer with duties under the Agreement. Defendant D'Angelo nevertheless challenges the Agreement's jurisdiction, not over D'Angelo as a CAEP member-contractor, but over the disputed job at the Liberty Two site. Both defendants disagree with plaintiff's characterization of the Liberty Two job as "heavy and highway construction," and conclude that the Agreement does not cover this dispute.
The definition of "heavy construction" in Article II, § 1, does not specifically include or exclude drilling work on a building site from the Agreement's scope. The record presents conflicting interpretations of the nature of the work at Liberty Two. Plaintiff claims the drilling work was heavy construction traditionally performed by its members. McBride Affidavit para. 4. In direct contradiction, defendants argue the work was not heavy construction, but building construction work. Their evidence indicates that Philadelphia's General Building Contractors Association has an agreement with plaintiff that covers jobs such as those associated with Liberty Two. Smith Affidavit para. 5. In addition, they claim that work like the job in question is historically assigned, not to plaintiff's members, but to members of the Pile Drivers' Local 454. Smith Affidavit para. 8.
The record reveals considerable disagreement over the factual question of whether the Heavy and Highway Construction Agreement covers the Liberty Two dispute. Although doubts over arbitrability are to be resolved in favor of coverage, plaintiff's evidence falls short of reaching, under the standard of summary judgment, the broad protection of this principle. Retention of this action makes no pronouncement as to the merits of the Liberty Two dispute itself (as defendants have urged the court to do), but is solely based on determining the arbitrability of the dispute. See AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 647, 89 L. Ed. 2d 648, 106 S. Ct. 1415 (1986).
Accordingly, I deny plaintiff's motion for summary judgment as to both defendant CAEP and defendant D'Angelo. An appropriate order accompanies this memorandum.
For the reasons stated in the accompanying memorandum, it is hereby ORDERED and DIRECTED that:
1) Plaintiff's motion for summary judgment is DENIED;
2) All discovery will be completed by October 21, 1988;
3) Plaintiff's pretrial memorandum is due by October 28, 1988;
4) Defendant's pretrial memorandum is due by November 4, 1988; and
5) Thereafter this case will be assigned to the trial pool.
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