UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: May 20, 1994; As Corrected June 24, 1994.
LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO, APPELLANT IN NO. 93-5208
FOSTER WHEELER CORPORATION; FOSTER WHEELER ENERGY CORPORATION LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO, V. FOSTER WHEELER CORPORATION; FOSTER WHEELER ENERGY CORPORATION, FOSTER WHEELER ENERGY CORPORATION APPELLANT IN NO. 93-5233 LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO, V. FOSTER WHEELER CORPORATION; FOSTER WHEELER ENERGY CORPORATION, FOSTER WHEELER CORPORATION APPELLANT IN NO. 93-5243
On Appeal From the United States District Court For the District of New Jersey. (D.C. Civ. No. 85-04240).
Before: Becker and Nygaard, Circuit Judges, and Yohn, District Judge.*fn*
Opinion OF THE COURT
BECKER, Circuit Judge.
This appeal arises out of bitterly contested litigation over the applicability of a national "prehire" labor agreement to a worksite in Alabama. At ultimate issue is the defendant employers' failure to hire the employees engaged at the site from the plaintiff union's hiring hall. The parties have been ceaselessly embroiled in this matter for over eight years. During this time they have appeared before the district court thrice and an arbitrator once; they are now before this Court for the third time. Given what appears to us to be the relatively modest stakes and the fact that the primary point of contention in the case will probably never recur,*fn1 it is unfortunate that their litigation strategies have prevented them from settling. We can only hope that the opinion that follows will edge them toward a swift resolution of their remaining disputes instead of propelling them back to the arbitrator for another round of pugnacious battle.
The principal question before us, one we will answer in the affirmative, is whether the district court erred in not applying retrospectively the National Labor Relation Board's decision in John Deklewa & Sons, Inc., 282 N.L.R.B. 1375 (1987), enf'd sub nom. Iron Workers, Local 3 v. NLRB, 843 F.2d 770 (3d Cir.) (per curiam), cert. denied, 488 U.S. 889, 109 S. Ct. 222, 102 L. Ed. 2d 213 (1988). A host of other questions is also before us, but many of them are rendered extraneous by our resolution of the retrospectivity question. As to those we need reach, we first conclude that the district court properly referred the issue of damages to the arbitrator, but should also have referred the question of breach as well. In addition, we will clarify the mandate we issued the last time the parties appeared before this Court -- specifically, we will describe its effect on two factual findings which an arbitrator had made and the district court had adopted prior to the parties' second rendezvous here -- and comment on the employers' contention that no damages may flow from their alleged breach of the prehire agreement because the union operated an illegal hiring hall in contravention of the prehire agreement as well as state and federal law.
In the end, we will instruct the district court to modify its Order of June 22, 1992, as modified on March 11 and 31, 1993, and to direct the parties to arbitrate the issue of breach of their pre-hire agreement in addition to the issue of damages, if any, flowing therefrom.
1. The Parties
Foster Wheeler Corporation ("FWC") is a major international construction firm with its principal place of business in Livingston, New Jersey. For a long time it was an exclusively union shop employer. It entered into its first National Agreement with the Laborers' International Union of North America, AFL-CIO ("LIUNA") in 1973, agreeing thereby, among other things, to recognize and acknowledge LIUNA as the exclusive bargaining representative for all field construction workers it would employ. LIUNA, in return, guaranteed that the terms of the agreement would govern irrespective of locale.
In 1974, in pursuit of a longterm expansion plan, FWC reorganized its commercial operations and became a holding company. Among FWC's motives for reorganizing was to become a double-breasted contractor, that is, to establish the capability to compete in both the open shop and the union shop markets. On November 11, 1974, FWC notified LIUNA that it had transferred its domestic engineering, manufacturing, and construction activities to Foster Wheeler Energy Corporation ("FWEC"), a newly formed, wholly-owned subsidiary, and that it had correspondingly assigned to FWEC all labor agreements covering the affected employees. Since then FWC has neither performed field construction work nor entered into field construction labor agreements; instead, FWEC (but not FWC) was listed as the employer in each subsequent National Agreement with LIUNA. FWEC itself was segmented into independently operated divisions, including Foster Wheeler World Services ("FWWS"), which performed all of FWEC's field construction work on a union basis, and Houston Engineering Center ("HEC"), which performed FWEC's engineering and procurement services.
Four years later, FWC furthered its 1974 reorganization plan and spawned Energy Plant Constructors, Inc. ("EPC"), a wholly-owned subsidiary which FWC formed and designed as the open shop counterpart to FWEC. To implement its open-shop policies, EPC hired its own employees and administered its own labor relations policies. EPC discontinued business operations in 1987.
LIUNA is the parent body of LIUNA Local 70 of Mobile, Alabama. The Local, in accordance with its constitution and bylaws, is affiliated with a regional building and trades council, Mobile Building Trades Council ("MBTC"). MBTC represents and acts on behalf of LIUNA Local 70 with regard to the negotiation and administration of labor agreements.
2. The Agreement
On April 20, 1982, FWEC and LIUNA entered into the National Agreement (the "Agreement") at issue here. The Agreement applied to all construction projects "performed by the Employer or by any person, firm or corporation owned or financially controlled by the Employer" within the political boundaries of the United States, except for those performed in one of three states (not including Alabama) already subject to a Tri-State Agreement.
On covered projects, the Agreement imposed several noteworthy requirements on FWEC: to hire employees through the referral systems of LIUNA's local affiliates; to recognize LIUNA as the exclusive bargaining agent for those employees; to adhere to certain requirements regarding wages, fringe benefits, and overtime; and to compel its subcontractors to comply with the substantive terms of the Agreement. The Agreement, however, expressly relieved FWEC of any obligation to recruit laborers through any local area hiring hall whose procedures violated state or federal laws or discriminated for or against laborers on the basis of their union membership.
3. The Project
At approximately the same time as FWEC was entering into its new agreement with LIUNA, Mobil Oil Exploration & Producing Southeast, Inc. ("MOEPSI") began the process of selecting a general contractor to oversee the engineering and construction of a sour gas treatment and sulfur recovery facility it wanted built at Bayou Jonas near Mobile. The project consisted of an offshore platform and natural gas production facility, a pipeline to carry the gas onshore, and a sour gas treatment and sulfur recovery plant (the only portion of the project to which this case relates). Through a rather convoluted set of developments, MOEPSI eventually nominally awarded the construction contract for the gas processing plant to EPC in October 1984, with FWC guaranteeing EPC's performance and EPC nominally subletting the engineering work to HEC (a divison of FWEC). This arrangement as depicted by the documents was suffused with subterfuge, however, for it is quite clear from the record, as both the district court and the arbitrator independently found, that in reality FWEC was the actual prime contractor on the MOEPSI project and EPC its subcontractor.*fn2
The local press widely publicized MOEPSI's award of the contract to EPC -- as well as EPC's open-shop policy -- during the fall and winter of 1984. LIUNA officials, suspicious of the goings-on, made numerous inquiries to the defendants concerning the application of the Agreement to the MOEPSI project. Apparently in each instance the defendants informally told the LIUNA officials that EPC was a non-union contractor not bound by the Agreement, and that, accordingly, the project would be completed by non-union labor. There is disputed evidence regarding whether FWEC affirmatively misrepresented to LIUNA its part in the project and its relationship to EPC.
As already mentioned, the Agreement required signatory employers to comply with the hiring provisions of local affiliates, but only if they were operated legally and did not discriminate against non-union laborers. MBTC, LIUNA's local affiliate, operated a hiring hall for construction workers, but, to LIUNA's chagrin, it discriminated against non-union members.*fn3 Seemingly unaware of MBTC's discrimination, EPC -- itself not a signatory to the Agreement -- opened its own hiring office for the MOEPSI project on January 29, 1985. Since the local press had widely publicized the available job opportunities, EPC received over 5,000 applications in the three days the hiring office accepted them. EPC hired all the construction workers it employed on the MOEPSI project either through the applications that were submitted at that office or at the entrance to the job site. On April 2, 1985, the day EPC hired its first laborer for the project, the local union had over 200 union supporters on the local hiring hall's out-of-work list, although some unspecified number of them were busy working for non-union contractors.
4. The Dispute
On April 9, 1985, LIUNA sent out a formal grievance letter to the various entities related to FWC involved with the MOEPSI project -- namely, FWC, FWIC, FWEC, and EPC -- claiming that each of them was in violation of the Agreement as a result of its participation in the MOEPSI project (insofar as the laborers had not been hired out of LIUNA's affiliate's, MBTC's, hiring hall). FWEC's counsel responded about one month later that FWEC would sometime in the future formally address the matters raised in LIUNA's letter, but that in the meanwhile he would meet informally with LIUNA representatives to discuss any difficulties clouding their relationship. Approximately one month after that, on June 3, 1985, EPC through its president also answered LIUNA's letter by denying any contractual obligation toward LIUNA and, in the alternative, providing notice of termination of any collective bargaining agreement it may have been a party to, whether by operation of law or otherwise. When several subsequent meetings between FWEC and LIUNA failed to resolve the matter, FWEC formally responded to LIUNA's grievance in a letter dated July 11, 1985, reiterating its previous position and stating:
Since the work in question is presently being undertaken by a company over which FWEC does not have and can exert no control, the LIUNA/FWEC National Agreement is not applicable. There is a different bargaining unit there with a different employer who, as we have very recently been given to understand, is proceeding pursuant to its agreement with the owner. FWEC employs no field construction laborers or mechanics at Mobile. There is nothing FWEC could do to make local labor agreements applicable.
Less than one month later, EPC filed a Petition for Election with the National Labor Relations Board ("NLRB" or "Board") to elect a union representative for all EPC's field construction employees at the MOEPSI project, or, more precisely, to dispel any doubts or reservations concerning whether the Agreement applied to the project at all by demonstrating LIUNA's lack of majority support amongst the workers. The Board failed to reach a decision on EPC's petition for several months and never completed the election.
In the meantime FWEC formally modified its stance toward LIUNA: although it still maintained that the Agreement did not pertain to its activities on the MOEPSI project, on August 9, 1985 it expressly repudiated the Agreement to the extent that the Agreement was found to apply to the MOEPSI project. It identified Painters Local Union No. 64 of Brotherhood of Painters v. Epley, 764 F.2d 1509 (11th Cir. 1985), cert. denied, 475 U.S. 1120, 106 S. Ct. 1636, 90 L. Ed. 2d 182 (1986) as establishing its right to limit its repudiation of an area-wide prehire agreement to a single job site. The Eleventh Circuit Court of Appeals, the court exercising jurisdiction over the situs of the MOEPSI project, had handed down Epley a scant month earlier. At that time, of course, FWEC had already committed itself internally to using non-union labor, and, furthermore, had contractually bound itself to MOEPSI to use EPC as the non-union construction subcontractor (although, as structured on paper, EPC was the (nominal) prime contractor and FWEC the (nominal) subcontractor, see supra at n.).*fn4
By letter dated May 15, 1986, FWEC validly repudiated the entire (National) Agreement according to its terms effective July 15, 1986.
B. Procedural History
1. Round 1
On August 29, 1985, LIUNA filed this action on behalf of itself, its local, and its membership against FWEC and FWC under § 301(a) of the Labor Management Relations Act ("LMRA"), 29 U.S.C.A. § 185(a) (1978). LIUNA sought to compel FWEC and FWC to submit to arbitration LIUNA's grievance concerning the applicability of the Agreement to the MOEPSI project. The Complaint alleged that FWEC, FWC, FWIC, and EPC were alter egos and/or a single employer, and hence that all of them were bound by the Agreement. The Complaint further alleged that EPC, FWC, and FWIC each had breached the Agreement in connection with the MOEPSI project.
Upon considering defendants' alternative motions to dismiss, change venue, and stay the proceedings pending the outcome of the representation election scheduled at the MOEPSI site as well as plaintiff's motion for summary judgment, the district court on December 9, 1985 granted plaintiff's motion and ordered FWC and FWEC to submit LIUNA's grievance to arbitration. The court decided first that the Agreement as signed was a prehire agreement pursuant to § 8(f) of the National Labor Relations Act ("NLRA"), 29 U.S.C.A. § 158(f) (1973), not a collective bargaining agreement pursuant to § 9(a) of the NLRA, see id. § 159(a).*fn5 Next, it resolved that since EPC's employees at MOEPSI had not yet elected a bargaining representative and since LIUNA did not even claim majority status at the MOEPSI site, the Agreement had not yet been converted into a collective bargaining agreement under § 9(a).
The court then ordered arbitration solely on the issue of whether the Agreement applied to the MOEPSI site vel non, reasoning that LIUNA had raised a colorable claim that EPC was FWEC's alter ego and that the question of the application of the Agreement to any specific project fell within the scope of the Agreement's capacious arbitration clause. The court reserved for itself, however, the questions of LIUNA's majority representation, the size and composition of the appropriate bargaining units, and defendants' alleged repudiation of the Agreement. We dismissed the defendants' appeal from the district court's arbitration order as interlocutory. See Laborer's Int'l Union v. Foster Wheeler Corp., Nos. 86-5079, 86-5080 (3d Cir. May 1, 1986).
2. Round 2
On November 10, 1986, after a lengthy hearing and extended briefing, Arbitrator Sam Kagel issued a decison in LIUNA's favor. The arbitrator found that FWEC and FWC were alter egos and that EPC was a joint or single employer with FWEC. Based on these findings, he concluded that EPC (through FWEC) was a party to the Agreement and consequently that both FWC and FWEC had breached the Agreement. He additionally determined that, contrary to the arrangements as they existed on paper, FWEC was the prime contractor and EPC the subcontractor at the MOEPSI site, and that the defendants had listed EPC as the prime contractor with the express intent to delude LIUNA.
3. Round 3
Just over a year later, the district court entered an order confirming the arbitrator's award insofar as he had found that the Agreement applied to the MOEPSI project, but rejecting as an improper and unnecessary appendage beyond the scope of the reference that portion of the arbitrator's decision which found that FWC and FWEC had breached the Agreement. After rejecting numerous contentions raised by the defendants, the district court turned to the date of defendants' alleged repudiation of the Agreement. Because of Deklewa 's supposed deviation from the decision reached by the Supreme Court in Jim McNeff, Inc. v. Todd, 461 U.S. 260, 103 S. Ct. 1753, 75 L. Ed. 2d 830 (1983) (approving the pre-Deklewa rule), the district court held that Deklewa (discussed at length infra Part ) was invalid and refused to acquiesce in the rule it announced. This cleared the way for the court to find that FWC and FWEC had effectively repudiated the Agreement on June 6, 1985, the date LIUNA had received EPC's June 3 letter repudiating any agreement which may have existed between them.
The court wrapped up its decision with the observation that only the issues of defendants' breach and liability for damages accruing before June 6, 1985 remained. The parties thereafter stipulated to $18,500 in damages so as to expedite their appeal to this Court.
4. Round 4
On February 22, 1989, this Court partially vacated the district court's order, holding that the district court had erroneously allowed the arbitrator to decide whether FWC was FWEC's alter ego. The district court's error in ordering arbitration of the alter ego issue lay in its failure to realize that the question of the duty to arbitrate is one for judicial resolution, and therefore that "it is the role of the district court, not the arbitrator, to pierce the corporate veil and require a parent corporation to participate in arbitration of a contract to which a subsidiary is formally a party." Laborers' Int'l Union v. Foster Wheeler Corp., 868 F.2d 573, 576-77 (3d Cir. 1989) (per curiam).*fn6
Accordingly, we remanded for the district court to determine whether the two corporations were alter egos. In the process, we vacated all of the district court's orders subsequent to the one allowing discovery on the alter ego issue which were "predicated on the assumption that FWEC was FWC's alter ego," and instructed the district court that it "may reconsider the[ vacated orders] in light of our recent decision in International Ass'n of Iron Workers, Local 3 v. NLRB, 843 F.2d 770 (3d Cir.), cert. denied, 488 U.S. 889, 109 S. Ct. 222, 102 L. Ed. 2d 213 (1988)[, and enforcing Deklewa, supra ]." Id. at 577.
5. Round 5
After the district court's proceedings recommenced, FWC and FWEC conceded in open court on January 22, 1991 that FWC was FWEC's alter ego. After presiding over a two-day bench trial, the district court filed the opinion and order now under review on June 22, 1992.
The court first reaffirmed its prior ruling that the Deklewa rule did not apply, but, since Iron Workers, Local 3 had approved of the Deklewa rule, did so on a revised basis. Specifically, it adJudged that it would be manifestly unjust to apply the rule retrospectively to these defendants, and concluded that this Court's decision in Iron Workers, Local 3 did not dictate the automatic retrospective application of Deklewa but instead required a case-by-case evaluation of the Justice of so doing. Mem. Op. at 27-29, 37-38. Analyzing the three Chevron Oil factors for guidance on whether or not to apply Deklewa 's new rule of law retrospectively, see Chevron Oil Co. v. Huson, 404 U.S. 97, 106-08, 92 S. Ct. 349, 355-56, 30 L. Ed. 2d 296 (1971), the court concluded that its application of the rule would further the rule's underlying principles, but that the rule clearly departed from prior precedent and that its application would lead to an inequitable result. As part of its analysis of this issue, the court determined that LIUNA's unclean hands, due to the discriminatory referral practices of MBTC's hiring hall, equitably estopped it from arguing that FWEC and FWC (which had cirumvented the Agreement's hiring procedures) were barred (by equitable estoppel) from justifying their repudiation of the Agreement by reason of LIUNA's lack of majority support at the MOEPSI work site.
Next, the court rescinded its earlier finding of a June 3, 1985 repudiation date, finding instead that the defendants had not repudiated the Agreement until three months later on August 9, 1985. It explained that FWEC's repudiation could not have occurred before June 3, 1985 because before then FWEC and EPC had simply claimed that the Agreement did not apply to the MOEPSI project. Moreover, due to its Conclusion that the defendants' scheme involving FWIC was designed to deceive LIUNA regarding the applicability of the Agreement, the court withdrew from its earlier position and found that EPC's June 3, 1985 letter to LIUNA, in which it had repudiated any agreement with LIUNA to which it may have been a party, did not suffice to repudiate the Agreement. It reasoned that EPC's June 3 repudiation did not extend to FWEC, despite the facts that FWEC and EPC were alter egos and that LIUNA had suspected that EPC was bound by the Agreement, because the defendants' calculated deception prevented LIUNA from being certain that EPC intended its repudiation to apply to FWEC as well. Finally, the court concluded that FWEC's August 9, 1985 single-site repudiation was effective. Thus, the court held that FWEC would be liable for damages LIUNA sustained up to August 9, 1985.
Having disposed of the main issue of liability, the court ordered the parties to notify it within twenty days if they could settle on LIUNA's damages, or else to submit to it the issue of damages. Upon LIUNA's Motion for Reconsideration and Clarification, the court on March 11, 1993 modified its prior order and directed the parties to submit the issue of damages to arbitration. On March 31, the court denied defendants' application to file a Motion for Reconsideration of the court's March 11 Order. It is from the June 22, 1992 Order, as modified on March 11 and 31, 1993, that the parties appeal.
6. Round 6
This appeal followed. The district court had original jurisdiction to determine whether the defendants are obligated to arbitrate a grievance arising under a § 8(f) prehire agreement pursuant to 29 U.S.C.A. § 185 (1978), see Jim McNeff, Inc. v. Todd, 461 U.S. 260, 271-72, 103 S. Ct. 1753, 1759, 75 L. Ed. 2d 830 (1983), and we have appellate jurisdiction pursuant to 28 U.S.C.A. § 1291 (1993).*fn7
II. THE RETROSPECTIVITY OF DEKLEWA
In Deklewa, the Board abruptly reversed seventeen years of precedent established by R.J. Smith Construction Co., 191 N.L.R.B. 693, 695 & n.5 (1971), enforcement denied sub nom. Local No. 150, International Union of Operating Engineers v. NLRB, 156 U.S. App. D.C. 294, 480 F.2d 1186 (D.C. Cir. 1973) and Ruttmann Construction Co., 191 N.L.R.B. 701, 702 (1971), and held that construction industry prehire agreements negotiated under § 8(f) of the NLRA, 29 U.S.C. § 158(f), are no longer subject to unilateral repudiation by either the employer or the union. See Deklewa, 282 N.L.R.B. at 1377-78. The Board held instead that both parties must observe such contracts until "the employees vote, in a Board-conducted election, to reject (decertify) or change their bargaining representative." See id. at 1385. This represented a complete about-face: before that decision, under the reign of the R.J. Smith rule, the employer was free to repudiate a prehire agreement at any time unless the union obtained majority status. The union's attainment of majority status at any time subsequent to the parties' entering into the prehire agreement would "convert" the § 8(f) pre-hire into a § 9(a) collective bargaining agreement and thereby consummate a full bargaining relationship, regardless of whether the union had majority support at the time of repudiation. See NLRB v. Local Union No. 103, Int'l Ass'n of Iron Workers (Higdon Constr. Co.), 434 U.S. 335, 345, 349-50, 98 S. Ct. 651, 657-58, 660, 54 L. Ed. 2d 586 (1978); Deklewa, 282 N.L.R.B. at 1378; Ruttman Constr. Co., 191 N.L.R.B. at 702.
The controlling question presented by this appeal is whether this new rule (issued on February 20, 1987) -- which turned the old rule on its head -- should be retrospectively applied to conduct by the parties transpiring in mid-1985. The Board for its part determined to apply the rule retrospectively to all cases pending before it. See Deklewa, 282 N.L.R.B. at 1389. Nevertheless, the district court correctly determined that retrospectivity must be decided on a case-by-case basis: in affirming Deklewa, this Court applied the new rule retrospectively to the parties before it only after engaging in a case-sensitive review of the parties' circumstances. See Iron Workers, Local 3, 843 F.2d at 780.*fn8
Applying what the district court believed to be the proper test, it decided not to apply Deklewa retrospectively.*fn9 See Mem. Op. at 26-29. That court erred, however, when it departed from Chenery 's "manifest inJustice" analysis appropriate for agency adjudications and instead applied the three-prong Chevron Oil analysis once appropriate for judicial adjudications. See Chevron Oil v. Huson, 404 U.S. 97, 106-08, 92 S. Ct. 349, 355-56, 30 L. Ed. 2d 296 (1971) (setting forth the test for retrospective application of new rules of law announced in "judicial decisions"). As we explained in Iron Workers, Local 3, while SEC v. Chenery Corp., 332 U.S. 194, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947) "has been applied exclusively to administrative agency adjudications," Chevron Oil "appears to have been applied exclusively to judicial adjudications." 843 F.2d at 780 n. 12. Thus, to the extent that the Chenery inquiry differs from the Chevron Oil test, the district court committed legal error.*fn10
The numerous other courts to have considered the retrospectivity of the Deklewa rule have divided over the issue, with the slight majority of the cases not applying it retrospectively; the roster is set forth in the margin.*fn11 FWEC tries to distinguish the cases applying Deklewa retrospectively from those refusing to do so on the grounds that in all the former cases (i) the proceedings were pending in the Board at the time Deklewa was decided, and (ii) the employer effectively repudiated the agreement before Deklewa was decided. The district court tried to distinguish the cases on the basis of whether the union had clearly obtained majority status or not prior to the employer's repudiation of the prehire agreement. See Mem. Op. at 38. We think, however, that these attempts to reconcile the cases along the lines of one or another singular criterion must fail.
First, not every court applies the same standard of review: some courts do not defer to the administrative agency's determination of retrospectivity at all, whereas this Court in Iron Workers, Local 3 held that it would follow the Board's retrospectivity ruling absent a manifest inJustice. See NLRB v. W.L. Miller Co., 871 F.2d 745, 748 & n.2 (8th Cir. 1989) (noting the incongruity), appeal after remand, 988 F.2d 834 (8th Cir. 1993) (denying enforcement of the NLRB's order). Compare, e.g., Iron Workers, Local 3, 843 F.2d at 781 and C.E.K. Indus. Mechanical Contractors, Inc. v. NLRB, 921 F.2d 350, 357 (1st Cir. 1990) with, e.g., Sheet Metal Workers Local Union No. 54 v. E.F. Etie Sheet Metal Co., 1 F.3d 1464, 1472 n.8 (5th Cir. 1993), cert. denied, 127 L. Ed. 2d 386, 114 S. Ct. 1067 (1994) and Mesa Verde Constr. Co. v. Northern Cal. Dist. Council of Laborers, 895 F.2d 516, 519 n.1 (9th Cir.), cert. denied, 498 U.S. 877, 111 S. Ct. 209, 112 L. Ed. 2d 169 (1990). Moreover, the fact that some recurring circumstances have been identified as rendering retrospective application of the Deklewa rule manifestly unjust does not dictate a similar result in other cases presenting a dissimilar coincidence of circumstances. Finally, it appears that the courts are inconsistent and somewhat divided over the meaning and application of the "manifest inJustice" doctrine.*fn12
As mentioned above, the decision controlling retrospective application of a rule of law an agency promulgates in an adjudication and providing the benchmark for the "manifest inJustice" inquiry remains Chenery. Chenery stated as the general rule that the ill effects of retrospectivity
must be balanced against the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles. If that mischief is greater than the ill effect of the retroactive application of a new standard, it is not the type of retroactivity which is condemned by law.
Chenery, 332 U.S. at 203, 67 S. Ct. at 1581. This Court has not had many opportunities to apply Chenery, however, and indeed the only case we have found decided by this Court that discusses Chenery in a helpful way is E.L. Wiegand Div. v. NLRB, 650 F.2d 463 (3d Cir. 1981), cert. denied, 455 U.S. 939, 102 S. Ct. 1429, 71 L. Ed. 2d 649 (1982).*fn13 There we referenced five factors announced by Retail, Wholesale & Dep't Store Union v. NLRB, 151 U.S. App. D.C. 209, 466 F.2d 380, 390 (D.C. Cir. 1972) to evaluate "whether the inequity of retroactive applications is counterbalanced by sufficiently significant statutory interests." E.L. Wiegand Div., 650 F.2d at 471. Although the factors could be characterized as dicta insofar as this Court never applied them in that case, they originate from the District of Columbia Circuit's landmark decision in Retail, Wholesale and appear to be in accord with other courts' interpretation of Chenery, see supra at n., and thus we will adopt those five factors and apply them to this case.
The five factors we will consider are "(1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well established practice or merely occupies a void in an unsettled area of law, (3) the extent to which the party against whom the new holding is applied in fact relied on the former rule, (4) the degree of the burden imposed, and (5) the statutory interest in application of this new rule." E. L. Wiegand Div., 650 F.2d at 471 n.5. We determine that the first and fourth factors favor neither party, that the third and fifth factors militate in favor of the Union, and that the second factor favors the defendants. After going through a balancing operation, we conclude that Deklewa applies retrospectively to this case.*fn14
Three of these factors can quickly be disposed of. First, as we are not newly announcing the Deklewa rule in this case, the issue is not one of first impression. If it were, we would be compelled either to apply the new rule retrospectively or to reject it, as the prohibition against advisory opinions, see Retail, Wholesale, 466 F.2d at 390; NLRB v. Majestic Weaving Co., 355 F.2d 854, 860 (2d Cir. 1966), assures that "every case of first impression has a retroactive effect," Chenery, 332 U.S. at 203, 67 S. Ct. at 1581. Subsequent cases, on the other hand, do not always demand retrospective application of the "new" rule (we speak now only of agency adjudications). See supra at n.. Second, as all agree, the rule "represents an abrupt departure from well-established precedent." This fact cuts against retrospective operation, since the parties' reliance interests will more likely be disappointed. Third, the Board found, and this Court in Iron Workers, Local 3 concurred, that there was a great statutory interest in the retrospective application of Deklewa, even in cases (like Deklewa itself) where the dispute was purely of historical interest.*fn15 This factor accordingly weighs in on the side of retrospectivity.
As to the question of the substantiality of the burden, the record is unclear. The parties stipulated that if FWEC's breach of the Agreement dated only from April to June 1985, LIUNA's damages would come in under $20,000, almost a trifling sum in this context even when compared just to the costs and fees presumably expended in this 8-year litigation. If the period of the breach is extended to July 1986, the damages may not be disproportionately larger, although under some remedial theories advanced by LIUNA at oral argument, ones obviously different from those upon which the $20,000 calculation was premised, the damages might grow substantially.*fn16 Counterbalancing this fact is the defendants' great size and considerable wealth, as financial fortitude blunts the blow of damages. In sum, this inconclusive factor might favor either side.
Finally, as to the weighty factor of actual reliance by the adversely affected party, the record convincingly establishes that there was no actual reliance by the defendants on the superseded rule. While true that an abrupt about-face in the law (the second factor) "strongly advises" the Conclusion of an "inequitable result" under the inapposite Chevron analysis, Gruber v. Price Waterhouse, 911 F.2d 960, 968 (3d Cir. 1990), this Chenery actual reliance factor spotlights the subjective question whether the party opposing retrospective application did, in fact, rely upon the retracted rule, rather than the objective question whether that party reasonably and justifiably could have relied upon it, see supra at n.; see also infra at n..
The district court found that "the defendants tried to deceive the union about the applicability of the [Agreement] to the MOEPSI project for a long time," Mem. Op. at 37, which strongly suggests that the defendants themselves felt bound by the Agreement at that site.*fn17 In essence, they perpetrated the deception by pretending that the nominal contractor FWIC was the prime contractor on the project.*fn18 Furthermore, the district court found that "the defendants initially believed they could not repudiate the agreement for a single project and that they did not want to repudiate the agreement as a whole," seemingly because they wished to reap the rewards of the Agreement in other regions of the country where union influence was stronger. Mem. Op. at 32.
The defendants' initial belief was justified until they learned about Painters Local Union No. 64 of Brotherhood of Painters v. Epley, 764 F.2d 1509 (11th Cir. 1985), cert. denied, 475 U.S. 1120, 106 S. Ct. 1636, 90 L. Ed. 2d 182 (1986), in which the Eleventh Circuit held that an employer could repudiate an area-wide prehire agreement with respect to a particular job site without affecting the agreement at other job sites. Undoubtedly the defendants' early belief that they could not selectively repudiate the Agreement with regard to a particular site accounts for the deception noted above. But Epley was handed down on July 12, 1985 (the district court found that FWEC explicitly repudiated the Agreement as to the MOEPSI site alone on August 9, 1985), months after the defendants had fully committed themselves, both internally and contractually, to use non-union labor, and saddled themselves with that obligation by opening their own hiring hall (in January 1985) and hiring their workers from there (commencing on April 2, 1985) instead of from MBTC's hiring hall. See supra at .
Given this state of affairs, we do not see how, measured from the moment the defendants reached their decision to "repudiate" the Agreement (which we think happened at the time FWEC decided to use FWIC as the nominal contractor, sometime before February 1984, see supra at n.), they possibly could have relied on their as of yet unestablished right to repudiate the Agreement selectively with respect to a single job site.*fn19 Rather, it is abundantly clear from the measures they undertook to conceal FWEC's involvement in the project that they in fact believed they had no such right. In short, we are persuaded that had Deklewa been decided and entrenched long before the defendants ever heard of the MOEPSI project, neither FWEC nor FWC would have behaved any differently. At all events, in February 1984 -- the date, as noted above, when the defendants chose to bypass the Agreement at the MOEPSI site -- the defendants could not have been very confident that LIUNA would not enjoy majority support at the MOEPSI site. See supra at n. (discussing the implications of a union obtaining majority status).
We turn now to the balancing exercise. We bear in mind the backdrop that "when the Board changes a rule and makes it retroactive, particularly when the Board assigns as its reasons for doing so the furtherance of the fundamental statutory policies of employee free choice and labor relations stability, the Board should be entitled to exercise its broadest power." Iron Workers, Local 3, 843 F.2d at 780. We are also reminded of the truism that in the context of adjudication, retrospectivity is, and has since the birth of this nation been, the norm. See, e.g., Harper v. Virginia Dep't of Taxation, 125 L. Ed. 2d 74, 113 S. Ct. 2510, 2516 (1993); cf. Hill v. Equitable Trust Co., 851 F.2d 691, 695-96 (3d Cir. 1988) (discussing the competing views on retrospectivity), cert. denied, 488 U.S. 1008, 109 S. Ct. 791, 102 L. Ed. 2d 782 (1989).
Although retrospectivity is not mandated, as this case is not one of first impression, the sole factor opposing retrospectivity is the fact that the rule signalled an abrupt departure from prior precedent. But this factor itself was considered in Deklewa and, on appeal, in Iron Workers, Local 3, and neither tribunal found it defeated retrospective application of the Deklewa rule then.*fn20 Indeed, defendants have not in fact relied to their detriment upon the discarded rule, a factor of primary importance. Moreover, we held in Iron Workers, Local 3 that the statutory interest in application of the new rule is substantial. Finally, the burden the defendants might bear does not look to be disproportionately large given their means. In view of the foregoing, we conclude that the factors strongly weigh in favor of retrospective application of the Deklewa rule to this case.*fn21
The consequence of our Conclusion that Deklewa applies retrospectively is that the Agreement at the MOEPSI site was never repudiated by the defendants until they rightfully terminated it effective July 15, 1986. Under Deklewa, an employer cannot repudiate a prehire agreement unless the Board first conducts an election decertifying the union. See 282 N.L.R.B. at 1385. The facts indicate that no effective election was ever held (the NLRB did conduct an election, but on appeal from the election petition the ballots were impounded and by the time the Board remanded the matter the election had been mooted). See supra at n.. Thus, the parties continued to be bound by the Agreement at the MOEPSI site until July 15, 1986, when FWEC within the window provided therefor properly terminated the Agreement in its entirety.*fn22
III. THE EFFECT OF THIS COURT'S MANDATE ON THE
ARIBTRATOR'S FACTUAL FINDNGS
The arbitrator made several findings of fact in his arbitration decision, a decision which preceded the parties' second appeal to this Court. The two important facts found by the arbitrator were that (i) FWEC and EPC were a "single employer," and (ii) FWEC was the prime contractor at the MOEPSI site, contrary representations in the paper trail notwithstanding. The district court adopted those findings as its own, but then the parties appealed to this court, disputing the legality of the district court's arbitration order. On appeal we vacated some, but not all, of the district court's orders subsequent to the arbitration order. See supra at ; infra at . Upon remand, the district court concluded that we had vacated all of its post-arbitration orders, including the one adopting some of the arbitrator's facts as its own.
The parties now dispute whether those findings survived our vacatur of portions of the district court's orders linked to the arbitration. The employers argue that our prior decision vacated the district court's entire order, including those factual findings; the union, conversely, maintains that those factual determinations survived and are now the law of the case. Because the answer lies in this Court's prior opinion in this case, we are called upon to interpret it.
On December 9, 1985, the district court ordered the defendants to "participate in an arbitration of the Plaintiff's grievance concerning the applicability of Section 1 of the parties' National Agreement [(Scope)] to the construction project." Order at 1-2. The court in its accompanying decision explained this order:
I warn the parties not to attempt to confuse the narrow question I have found arbitrable with other issues such as majority representation, bargaining units and repudiation. Before anything else is to be determined in this suit, the threshold issue of whether the Section 8(f) agreement applies must be determined.
Mem. Op. at 19 (Dec. 9, 1985). After a hotly contested arbitration -- the arbitrator conducted three days of hearings, reviewed 192 exhibits, and considered 299 pages of briefs -- Arbitrator Kagel concluded, inter alia, that (1) FWEC and FWC were alter egos; (2) EPC was a joint or single employer with FWEC; (3) EPC had been listed as the prime contractor on the MOEPSI site only to dupe LIUNA and that FWEC was the actual prime contractor; and (4) the Agreement obligated FWC and FWEC to apply its terms to the MOEPSI project. Mem. Op. at 2; see Op. & Dec. at 33-35 (Kagel, Arb.) (Nov. 10, 1986).
One year later, the district court partially granted plaintiff's motion to confirm the arbitrator's award. Order at 1 (Nov. 17, 1987). In its opinion, the court explained that the arbitrator's Conclusion that FWC and FWEC breached the Agreement (derived from finding (4), supra), went beyond the scope of its reference and hence it would not defer to that finding, but it let stand his other Conclusions. Mem. Op. at 7-10 ("Aside from his final Conclusion regarding breach, the arbitrator's decision falls within the four corners of my intended submission.").
LIUNA now claims that FWEC in its earlier appeal to this Court argued only that Deklewa should not be applied retrospectively*fn23 and that it had repudiated the Agreement on or before June 6, 1985, but did not attack finding (2) (to the effect that EPC and FWEC were a joint employer) or finding (3) (to the effect that FWEC was actually the prime contractor on the MOEPSI site), and submits that therefore both the findings became res judicata.*fn24 Assuming arguendo that the defendants appealed from the district court's entire judgment rather than simply from some subset of issues, the decision would have established the law of the case solely with respect to those issues the decision reached explicitly or by necessary inference.
The parties did not include the initial notice of appeal in the record, and neither FWEC nor FWC asserts that it noticed its appeal from the entire judgment in its 1988 cross-appeal. Nonetheless, because it is not outcome-determinative, we will give the defendants the benefit of the doubt and assume that they noticed their appeal from the entire judgment. The defendants' case falters because (1) in their briefs on the earlier appeal they did not actually attack the district court's adoption of the arbitrator's factual findings; (2) this Court did not expressly or by necessary implication reverse the district court's earlier validation of the arbitrator's two factual findings; and (3) this Court did not vacate that portion of the district court's order adopting the factual findings. Consequently, the two findings became res judicata after the remand -- hence, absent certain extraordinary circumstances, they were beyond the authority of the district court to revisit.
In the Statement of Issues in its 1988 appellate brief, FWEC posed the question "whether the District Court erred in compelling Arbitration on any issue and in later failing to set aside the arbitrator's decision in its entirety." 1988 Br. of FWEC at 2 (emphasis added). But beyond that brief reference it never mentioned or developed that issue in its argument section. In fact, after asserting in a conclusory fashion that it could establish that the district court should have vacated the arbitrator's decision, FWEC stated that it "will not, however, address these issues herein because, although it would result in a reduction or total vacation of damages, it would require remand and trial and/or another arbitration which would serve only to prolong a small dispute which has been out of control for much too long." Id. at 5 (Statement of the Case).
To complicate matters, though, FWEC followed its disclaimer with the declaration that it would "adopt those arguments of . . . FWC which establish why the arbitrator exceeded his jurisdiction, why the District Court's refusal to overturn the Arbitrator's decision should be vacated and why the court's order compelling arbitration should be overturned." Id. at 5-6; see FED. R. APP. P. 28(i) ("In cases involving more than one appellant or appellee, . . . any appellant or appellee may adopt by reference any part of the brief of another."). However, a perusal of FWC's 1988 brief finds no argument that helps FWEC.*fn25
LIUNA concedes that FWEC addressed the arbitration issue in its 1988 reply brief (which was not placed in the record), see Reply & Opp'n Br. of LIUNA at 31, but argues that by then it was too late to do so. We agree. An issue is waived unless a party raises it in its opening brief, and for those purposes "a passing reference to an issue . . . will not suffice to bring that issue before this court." Simmons v. City of Philadelphia, 947 F.2d 1042, 1066 (3d Cir. 1991) (plurality opinion) (Becker, J.), cert. denied, 118 L. Ed. 2d 391, 112 S. Ct. 1671 (1992); International Raw Materials v. Stauffer Chem. Co. , 978 F.2d 1318, 1327 n.11 (3d Cir. 1992), cert. denied, 123 L. Ed. 2d 154, 113 S. Ct. 1588 (1993). Accordingly, unless the 1989 decision reversed or vacated that portion of the district court's order affirming the arbitrator's findings of fact or vacated. FWEC's failure to contest those points on appeal rendered them res judicata. See supra at n.24.
Nowhere did the 1989 decision reverse the district court's order adopting the facts, although it did vacate the district court's orders "predicated on the assumption that FWEC was FWC's alter ego." Laborer's Int'l Union, 868 F.2d at 577. We conclude that the 1989 decision did not vacate the district court's ratification of the arbitrator's two findings of fact (which had to do with FWEC and EPC 's relationship) because that portion of the district court's order was the only portion of the order which both was not predicated on the alter ego finding and remained contested.*fn26 We hesitate to construe a carefully crafted vacatur as having vacated the entire matter under review. This interpretation is reinforced by the absence of any reason this Court would have had for vacating those particular factual findings and requiring a duplication of effort: FWEC was properly compelled to arbitrate those factual issues, and an arbitrator eventually would have needed to resolve them anyway to settle FWEC's liability.
Nevertheless, the district court interpreted this Court's 1988 mandate to vacate all of the arbitrator's factual findings. Mem. Op. at 5 n.3. Therefore, the court decided to "review this matter afresh." Id. Unfortunately, that alternative route ignores the fact that the parties had contractually agreed to have exactly these questions answered by an arbitrator. The moment FWC conceded that it was FWEC's alter ego, the central question whether it could be compelled to arbitrate the dispute was affirmatively answered, and the district court should thereupon have dispatched the parties to arbitration as soon as it determined the effective repudiation/termination date of the Agreement. See infra at n..
In any event, we believe that the district court misconstrued this Court's mandate. Even if this Court meant to vacate the order compelling FWEC (as opposed to FWC) to submit to arbitration, an issue which was not presented to this Court,*fn27 as stated above, we did not vacate the district court's subsequent confirmation of the arbitrator's factual findings. Accordingly, the arbitrator's findings once adopted by the district court, namely, that FWEC and EPC were a single employer and that FWEC was really the prime contractor at the MOEPSI site, are res judicata, and the district court should not have revisited them.
IV. THE ARBITRABILITY OF THE ISSUES OF BREACH AND DAMAGES
Where no factual determinations are involved, this Court reviews the district court's decision to send the issues of damages and breach to arbitration as a matter of law. See Sheet Metal Workers Int'l Ass'n, Local 19 v. 2300 Group, Inc., 949 F.2d 1274, 1278-79 (3d Cir. 1991) ("We have plenary review on whether the terms of the collective bargaining agreements are ambiguous. Moreover, we review de novo the district court's construction of the collective bargaining agreements, which is a question of law." (citation omitted)); cf. Lukens Steel Co. v. United Steelworkers, 989 F.2d 668, 672 (3d Cir. 1993) (where a collective bargaining agreement is ambiguous and the parties' intent is controlling, the scope of review is for clear error). See generally Ram Constr. Co. v. American States Ins. Co., 749 F.2d 1049, 1052-53 (3d Cir. 1984) (comparing when plenary and clear error review is appropriate). Our primary guide is the strong federal labor policy favoring arbitration, a policy in large part premised on the arbitrator's superior expertise in the mechanics of collective bargaining and collective bargaining agreements, greater understanding of the law of the shop, and greater efficiency in resolving labor disputes. See Luden's Inc. v. Bakery, Confectionery & Tobacco Worker's Int'l Union Local 6, -- F.3d --, -- (3d Cir. 1994).
The parties inserted an extremely capacious arbitration clause into the Agreement: it provided that "all grievances and disputes [over the application or interpretation of this Agreement], excluding jurisdictional disputes, shall be handled as hereinafter provided."*fn28 Agreement art. XV. Given the jurisprudence in this area, see, e.g., A T & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 650, 106 S. Ct. 1415, 1419, 89 L. Ed. 2d 648 (1986) ("'[An] order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.'" (quoting United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582-83, 80 S. Ct. 1347, 1352-53, 4 L. Ed. 2d 1409 (1960))), neither defendant could plausibly argue that such an inclusive arbitration clause can be read to exclude a dispute over whether the agreement applies to a certain work site or not, and neither does.
B. The Enforceability of Arbitration Clauses in Prehire Agreements
Defendants do argue that prehire agreements are not subject to arbitration and attempt to anchor this innovative argument in Jim McNeff, Inc. v. Todd, 461 U.S. 260, 103 S. Ct. 1753, 75 L. Ed. 2d 830 (1983). In Jim McNeff a union brought suit under § 301 of the LMRA, 29 U.S.C.A. § 185 (1978), complaining that the employer had breached a prehire agreement by failing to make contributions to the union's fringe benefit trust fund. The Court made no mention of an arbitration clause, but alluded to the "critical distinction between an employer's obligation under the [NLRA] to bargain with the representative of the majority of its employees and its duty to satisfy lawful contractual obligations that accrued after it enters a prehire contract." Jim McNeff, 461 U.S. at 267, 103 S. Ct. at 1757. Thus, the Court held that while an employer must not bargain with the union before the union obtains majority status, the conditions of § 9(a) of the NLRA not having been fulfilled, when a union and employer enter into a prehire agreement, "both parties must abide by its terms until it is repudiated." Id. at 271, 103 S. Ct. at 1759. We note that Jim McNeff predated Deklewa, and thus at the time either party could have unilaterally repudiated a prehire agreement without contravening the NLRA (that is, the R.J. Smith rule was then in effect). Ibid.
The defendants maintain that McNeff implies quite the opposite of what it says. They urge that a signatory to a prehire agreement containing an arbitration clause cannot be compelled to arbitrate until the § 8(f) prehire agreement has been transmogrified into a § 9(a) collective bargaining agreement. Br. of FWEC at 48-49. Without giving any reason for so doing, the defendants attempt to confine Jim McNeff to its narrow holding that "the monetary obligations assumed by an employer under a prehire contract may be recovered in a § 301 action brought by a union prior to the repudiation of the contract, even though the union has not attained majority support in the relevant unit." Id. at 271-72, 103 S. Ct. at 1759. Based on this niggardly understanding of Jim McNeff, they contend that LIUNA is limited to recovering damages in the district court. But clearly their reading of Jim McNeff misses its essential point that the terms of an operative prehire agreement are enforceable despite the union's lack of majority status. The Court analyzed the statutory text and purposes of § 8(f) to arrive at this preeminently logical Conclusion.
FWEC additionally attempts to distinguish Jim McNeff on the ground that here FWEC repudiated the Agreement before LIUNA sought arbitration, whereas in Jim McNeff the prehire agreement remained in effect throughout the litigation. Reply Br. of FWEC at 18. But even if that distinction could hold water, which it cannot, see Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 111 S. Ct. 2215, 2225, 115 L. Ed. 2d 177 (1991) (holding that a postexpiration grievance is subject to arbitration if the grievance "involves facts and occurrences that arose before expiration"); Nolde Bros., Inc. v. Bakery & Confectionery Workers Union, 430 U.S. 243, 255, 97 S. Ct. 1067, 1074, 51 L. Ed. 2d 300 (1977) ("the parties' failure to exclude from arbitrability contract disputes arising after termination . . . affords a basis for concluding that they intended to arbitrate all grievances arising out of the contractual relationship"), the retrospectivity analysis we engaged in eliminates that distinction: since Deklewa applies retrospectively, the parties continued to be bound by the Agreement at the MOEPSI site until FWEC terminated it effective July 15, 1986, a long time ago but still almost a full year after LIUNA instituted this action to compel arbitration.
C. Relevancy of the Merits of the Dispute
The defendants also argue that arbitration is improper in this case in particular because no damages can flow from a finding they breached the Agreement, as LIUNA operated an illegal hiring hall. They are correct that discriminatory hiring halls are probably illegal, e.g., NLRB v. International Bhd. of Elec. Workers Local 322, 597 F.2d 1326, 1330 (10th Cir. 1979), that they apparently violate the Agreement, see Agreement art. V §§ 1-2, that the district court found the local hiring hall to be run in a discriminatory fashion, see Mem. Op. at 18 n.6, and, the local union having been under LIUNA's trusteeship since May 1984, that LIUNA cannot distance itself from the illegal conduct. Thus it may very well be true that LIUNA is entitled to no damages.*fn29
We cannot be certain of that, however, as the correct answer completely depends on the interpretation to be given the Agreement. Because it appears that neither defendant in fact suspected that the union hiring hall was being run illegally until well after the filing of the complaint in this case, and because of the defendants' deception described earlier, the arbitrator may have to name a winner in the battle of the unclean hands. It may also be that, insofar as FWEC never attempted to invoke the Agreement and make use of MBTC's hiring hall (i.e., insofar as FWEC never tendered performance), it cannot establish LIUNA even breached, much less materially breached, the Agreement by not having a non-discriminatory hiring hall available for its use.
The arbitrator may also deem it possible that, had FWEC requested referrals from MBTC's hiring hall, the hall would have ceased its illicit ways and changed its procedures to bring the local into compliance with the Agreement and the law. That is, LIUNA's illegal operation of a hiring hall with respect to other employers would not necessarily mean it would run the hall the same way with FWEC and hence excuse FWEC's non-compliance with the Agreement. Alternatively, the arbitrator could perhaps construe the Agreement to have forbidden FWEC from repudiating the entire Agreement until it had provided LIUNA with a reasonable opportunity to cure by bringing its hiring hall into compliance with the law and the terms of the Agreement.*fn30
All this is not to imply LIUNA is entitled to damages, but only to show that an arbitrator might award LIUNA damages. It is not our place to resolve or even to speculate on the solution to the questions we have posed in the preceding paragraph or to others which we have not raised, because they are matters of interpretation of the parties' pre-hire agreement, and as such are matters the parties entrusted to the sound judgment of a labor arbitrator. A court cannot refuse to order arbitration based on its perception of the frivolousness of the claim or the futility of doing so. See, e.g., A T & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649-50, 106 S. Ct. 1415, 1419, 89 L. Ed. 2d 648 (1986) ("Whether 'arguable' or not, indeed even if it appears to the court to be frivolous, the union's claim that the employer has violated the collective bargaining agreement is to be decided, not by the court asked to order arbitration, but as the parties have agreed, by the arbitrator."); Beck v. Reliance Steel Prods. Co., 860 F.2d 576, 579 (3d Cir. 1988).
Moreover, as the Supreme Court has explained, the arbitrator's informed judgment is "especially [helpful in reaching a fair solution to a problem] when it comes to formulating remedies." United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 41, 108 S. Ct. 364, 372, 98 L. Ed. 2d 286 (1987) (emphasis and internal quotations omitted). In light of these considerations, we conclude that the district court's finding that LIUNA operated an illegal hiring hall provides no reason to deny LIUNA's prayer for relief, compelled arbitration.
D. What Should Be Arbitrated
We also conclude that on remand the district court should compel both FWEC and FWC to submit to arbitration. FWEC should arbitrate the dispute because it is a signatory to the Agreement. And as FWEC's admitted alter ego, FWC should also be ordered to submit to arbitration. As this Court's opinion in the parties' prior appeal made abundantly clear, the defendants' stipulation that FWC and FWEC were alter egos*fn31 was critical to the determination of the arbitrability of LIUNA's claim against FWC, since unless the defendants were alter egos the district court could not compel FWC to arbitration under the Agreement. See Laborers' Int'l Union, 868 F.2d at 576-77 ("The district court erred by letting an arbitrator determine whether FWC was an alter ego of FWEC and hence a party to the National Agreement. That question is for the district court, not an arbitrator."). Accordingly, that concession will now be enforced.
The validity of the Agreement and the expansiveness of its arbitration clause having already been established, once the defendants made this concession the district court's role in the grievance should have been over. It should not have entertained the case beyond establishing those facts necessary to determine that the defendants were duty-bound to arbitrate LIUNA's grievance. Accordingly, its Conclusion that the defendants breached the Agreement exceeded its authority -- the broad arbitration clause reserved for an arbitrator the power to answer that question.*fn32
Because the Board's ruling in Deklewa applies retrospectively to the parties, FWEC never successfully repudiated the Agreement as to any location prior to its total termination of that agreement in July 1986. The Agreement contains a broad, inclusive arbitration clause, one whose reach extends to whether the Agreement governs operations at a specific construction site or not. Therefore, FWEC must arbitrate the dispute over application of the Agreement to the MOEPSI site with LIUNA according to the procedure specified in Article XV thereof. Since FWC is FWEC's alter ego, it too must comply with Article XV of the Agreement and proceed to arbitration alongside its subsidiary.
Accordingly, we will reverse the district court's June 22, 1992 order insofar as it concludes that Deklewa does not apply retrospectively to this case, that our earlier mandate vacated the arbitrator's two factual findings, and that the defendants breached the Agreement. We will remand with instructions that the court modify its June 22, 1992 Order, as revised by the orders of March 11 and 31, 1993, to direct the parties to submit to arbitration the issues of breach and the amount of damages allegedly sustained by LIUNA, its local, and its membership*fn33 on account of FWEC's alleged breach of the pre-hire agreement at the MOEPSI site up to the date of FWEC's effective termination of the Agreement, July 15, 1986.