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National Elevator Bargaining Association v. International Union of Elevator Constructors

United States Court of Appeals, Eighth Circuit

April 18, 2019

National Elevator Bargaining Association; Kone, Inc. Plaintiffs - Appellees
International Union of Elevator Constructors; Local Union No. 33 Defendants - Appellants

          Submitted: January 17, 2019

          Appeal from United States District Court for the Southern District of Iowa - Des Moines

          Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.


         The International Union of Elevator Constructors ("IUEC") appeals the order of the district court vacating an arbitration award originally in favor of the IUEC. Because the arbitration award drew its essence from the contract, we reverse.

         I. Background

         The IUEC is a union of workers who install, repair and maintain elevators, escalators and related equipment throughout the United States and Canada. The IUEC and the National Elevator Bargaining Association ("NEBA") are parties to a nationwide multi-employer collective bargaining agreement ("CBA"); Kone, Inc. a major elevator company that belongs to the NEBA, is a party to the CBA. The CBA governs many aspects of the employer-employee relationship, including hiring and the payment of travel expenses.

         The CBA provides for an arrangement known as a "hiring hall" which enables employment on an intermittent, job-by-job basis on projects that are frequently separated in location and time. Under the CBA, Kone must use the hiring hall procedure for both experienced and inexperienced ("Apprentice") job applicants. The Apprentice list consists of applicants evaluated and ranked in accordance with the selection procedures of the local Joint Apprentice Committee ("JAC"), which is made up of representatives of both labor and management. Apprentices are ranked in numerical order, and upon request of an employer, the union must send-and the employer must accept-the next applicant on the list. Local 33 covers a large area encompassing Western Illinois, Iowa, South Dakota and parts of Nebraska. Given this geographic footprint it is not unusual that employee applicants are from time to time required to travel long distances from their homes to the assigned employer.

         Alex Thompson, of Rapid City, South Dakota, was the highest-ranked Apprentice applicant on the JAC's list when Kone's supervisor in Des Moines called Local 33 and requested an Apprentice for a job. Kone's supervisor originally questioned Thompson's distance from the jobsite but ultimately accepted him. During a telephone conversation on Friday, August 16, 2013, Thompson was told to present himself at Kone's Des Moines office at 7 a.m. the following Monday. Thompson made the 615-mile trip in 10 hours and spent Sunday night at a motel, in order to present himself at the Kone office as instructed. At the office he was given a drug test and spent time watching orientation videos before beginning work as an Apprentice. Thompson submitted a claim for reimbursement including claims for $295.35 for overtime travel and $386.46 for mileage; Kone refused to pay the claims. Local 33 grieved the issue but Kone held fast in its refusal on the ground that Thompson was not an employee at the time of travel and not entitled to reimbursement of travel expenses. When the parties were unable to resolve the dispute it was submitted to arbitration.

         Following a four-day hearing the arbitrator determined that Kone was required to pay the travel expenses. The arbitrator considered Art. XIII of the CBA, which reads in part: "When Elevator Constructors are sent outside the primary jurisdiction, but within the zoned area of the secondary, travel time and travel expense shall be paid in accordance with the Local Expense Agreement." He turned next to the question of whether Thompson, as an Apprentice, fell under the definition of "Elevator Constructor." To answer that question, he turned to Art. II, Par. 1 of the CBA ("Recognition Clause"), which provides:

The Employer recognizes the Union as the exclusive Section 9(a) bargaining representative for all Elevator Constructor Mechanics, Elevator Constructor Helpers, Elevator Constructor Apprentices and Elevator Constructor Assistant Mechanics (hereinafter referred to sometimes as "Mechanics, Helpers, Apprentices and Assistant Mechanics" or collectively as "Elevator Constructor(s)") in the employ of the Employers engaged in the installation, repair, modernization, maintenance and servicing of all equipment referred to in Article IV, Par. 2 and Article IV (A).

(emphasis added). Based on the emphasized language, the arbitrator concluded that the term "Elevator Constructor," as used in Art. XIII, included an Apprentice who is dispatched to a new job location pursuant to the CBA's hiring hall procedure. According to the arbitrator:

[U]nder Article XIII it does not matter for what purpose the Company directed Mr. Thompson to undertake that 615 mile trip travel, i.e., it is enough that Kone managers ordered, directed or "sent" this Elevator Constructor to travel outside of his primary jurisdiction but within the zoned area of his secondary. Article XIII posits no difference whatsoever between being ordered to undertake such travel time and expenses to report to a job site or to report to Company offices for pre-employment drug testing, personnel processing, orientation or job briefing.

         Kone appealed, and the district court vacated the award, determining that the arbitrator had failed to consider the "in the employ of Employers" key contractual language. The district court concluded that the arbitrator in quoting Art. II, Par. 1 of the CBA for the definition of Elevator Constructor had failed to consider the "the employ of the ...

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