National Elevator Bargaining Association; Kone, Inc. Plaintiffs - Appellees
v.
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.
ERICKSON, CIRCUIT JUDGE
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 ...