[00:00:00] Speaker 00: Case number 22-7109, United Association of Journeymen and Apprentices of the Plumbing and Plot Fitting Industry of the United States and Canada, Appellant, versus JAMA Ballot Systems, LLC. [00:00:14] Speaker 00: Mr. Famiya for the Appellant, Mr. Silvestri for the Appellee. [00:00:21] Speaker 02: Hey, please, the court. [00:00:22] Speaker 02: My name is Nicholas Famiya. [00:00:23] Speaker 02: I'm here on behalf of the Appellant, United Association. [00:00:27] Speaker 02: The United Association, years before the court, been challenged to a lower court opinion that declined to enforce an arbitration award and granted the motion to dismiss filed by Appellee Jenner. [00:00:41] Speaker 02: It's our position that the lower court committed a reversible error by applying the wrong arbitrability standard, and also by concluding that Jetta had no obligation to arbitrate its dispute with the United Association. [00:01:01] Speaker 02: I have reserved two minutes for rebuttal, so I just wanted to note that initially. [00:01:07] Speaker 02: If the court would permit me, I'd just like to take a minute to set the framework for the legal discussion. [00:01:15] Speaker 02: This case involves a jurisdictional dispute, which the D.C. [00:01:18] Speaker 02: Circuit has defined as a conflict between two or more groups of employees over which is entitled to do work for an employer. [00:01:27] Speaker 02: In this particular case, the dispute is over certain typing work being done at a Guernsey Power Project in Biesville, Ohio. [00:01:35] Speaker 02: Moreover, this case involves a jurisdictional dispute that has been adjudicated by the plan for the settlement of jurisdictional disputes in the construction industry. [00:01:46] Speaker 02: between the Building and Construction Trades Council of the AFL-CIO, which is now referred to as North America's building trades unions, and five multi-employer associations. [00:01:58] Speaker 02: The plan is designed to provide expedited resolution of jurisdictional disputes and ensure labor stability and peace on construction sites. [00:02:10] Speaker 02: For that reason, the plan specifically prohibits work stoppages, picketing, or other impediments to progress, and establishes a contractually agreed upon mechanism for peaceful resolution of disputes. [00:02:24] Speaker 02: And I think this court has, in the past, recognized that there's a long history of courts and they'll be recognizing the plan as a favoring method of resolving jurisdictional disputes. [00:02:36] Speaker 02: Now, the plan's effectiveness in ensuring labor peace is obviously dependent on all parties, employers and unions, complying with the plan's arbitration decisions. [00:02:48] Speaker 02: And accordingly, the plan specifies ways in which unions and employers can become bound or stipulate to the plan. [00:02:56] Speaker 02: Stipulation stipulates the term of our plan usage, which is becoming bound to the plan. [00:03:01] Speaker 02: In the case of unions, if you're affiliated with the building and construction, a trades department, or if you sign a stipulation form committing yourself to being bound, or if you become bound via provision of a collective bargaining agreement, bingo, you're bound. [00:03:20] Speaker 02: The case of an employer, it's a similar setup. [00:03:23] Speaker 02: You're bound if you are a member of an employer association, which has stipulated the plan, or if you signed your own stipulation form, [00:03:31] Speaker 02: or you're bound by virtue of a provision in the collective bargaining agreement. [00:03:35] Speaker 03: So in this case, it's the third for GEMMA. [00:03:38] Speaker 02: It's the third. [00:03:39] Speaker 02: Our contention is that GEMMA became bound via contractual provision. [00:03:43] Speaker 02: The UA is bound by virtue of its membership. [00:03:46] Speaker 03: What's interesting about this case is that there is no collective bargaining agreement between UA and GEMMA. [00:03:54] Speaker 03: Yes. [00:03:55] Speaker 03: Yet UA is seeking to hold GEMMA. [00:04:00] Speaker 03: to something that they apparently didn't agree to in the JCUs that they did sign. [00:04:05] Speaker 03: So what is your best argument for why GEMMA should be bound by what the arbitrator decided in this case? [00:04:17] Speaker 03: Because it's not based on the JCU that GEMMA signed. [00:04:22] Speaker 02: Well, actually, the JCU [00:04:25] Speaker 02: With two different unions, to be clear. [00:04:28] Speaker 02: Yes, there are two different, I should clarify that, yes, there are two JCUs, one with the boiler makers and one with the iron workers. [00:04:36] Speaker 02: Both of those JCUs contain jurisdictional provisions. [00:04:41] Speaker 02: And there are three paragraph provisions that are identical provisions. [00:04:45] Speaker 02: And the operative provision is paragraph one. [00:04:49] Speaker 02: And paragraph one, obviously... Yes, I have it in front of me. [00:04:53] Speaker 03: That seems to apply to disputes between or among the union and other unions or any subcontractor. [00:05:00] Speaker 03: So that doesn't bind, Gemma. [00:05:02] Speaker 03: Then it says, decisions rendered under the plan shall be final and binding and conclusive on the union or other affected unions. [00:05:10] Speaker 03: That doesn't bind, Gemma. [00:05:12] Speaker 02: Actually, if you read the provision, it says that [00:05:16] Speaker 02: What it essentially says is that all jurisdictional disputes, not just disputes picked by agenda, but all jurisdictional disputes. [00:05:24] Speaker 02: between the union, i.e. [00:05:25] Speaker 02: the signatory union, and any other unions who have signed agreements with GEMMA covering work on the project, or, and this is the operative phrase, any other unions who have signed agreements with any subcontractor governing work on the project. [00:05:42] Speaker 03: But that's still between the subcontractor, which is UA, and the union, and other unions. [00:05:48] Speaker 03: It's still not GEMMA, is it? [00:05:49] Speaker 02: Well, I think the record reflects that [00:05:52] Speaker 02: the U.A. [00:05:52] Speaker 02: has worked on the Gordy project pursuant to agreements with self-contractors. [00:05:57] Speaker 02: So the union, the U.A. [00:05:59] Speaker 02: is covered under that, that provision. [00:06:01] Speaker 03: So this, this specific... For disputes with unions, but not with Gemma. [00:06:08] Speaker 02: Well, first of all, the UAE is covered by that provision because it's worked on the project with subcontractors. [00:06:16] Speaker 02: And this provision specifically covers jurisdictional disputes. [00:06:20] Speaker 03: If I could play out what I think happened, which seems to be in line with what paragraph one requires. [00:06:28] Speaker 03: UAE, which is a subcontractor, I guess had a dispute with the unions, I guess the Boilermakers and the ironworkers, about jurisdiction to perform. [00:06:38] Speaker 03: plumbing work project. [00:06:40] Speaker 03: And so the arbitrator rendered a decision, said that UA should get the work, and that's binding on the union and other affected unions. [00:06:52] Speaker 03: So now the boiler makers and the iron workers can't do the work. [00:06:55] Speaker 03: But Gemma went and hired non-union workers to do the work. [00:07:00] Speaker 03: Gemma seems to be in compliance with this JCU. [00:07:04] Speaker 02: Well, the U.A. [00:07:05] Speaker 02: is not a subcontractor. [00:07:06] Speaker 02: The U.A. [00:07:07] Speaker 02: is a union working for a subcontractor on the project. [00:07:13] Speaker 03: But that's how U.A. [00:07:14] Speaker 03: even gets in the door, right? [00:07:16] Speaker 02: That's how the U.A. [00:07:17] Speaker 02: even gets in the door. [00:07:18] Speaker 02: That clearly puts the U.A. [00:07:21] Speaker 02: in a position to file a complaint under the plan. [00:07:27] Speaker 03: Right. [00:07:27] Speaker 03: So why is my reading of what happens [00:07:30] Speaker 03: not correct. [00:07:31] Speaker 03: It seems that Gemma is in compliance with paragraph one. [00:07:36] Speaker 03: There were jurisdictional disputes between UA and the Boilermakers and the Iron Rovers. [00:07:41] Speaker 03: There was an arbitration. [00:07:43] Speaker 03: That arbitration is final and binding on the unions. [00:07:48] Speaker 03: Gemma said, okay, and they hired somebody else to do work. [00:07:51] Speaker 03: Why is that not completely in compliance? [00:07:53] Speaker 02: I guess you focus them on actually there are two provisions of the jurisdiction of the district court mentioned. [00:08:01] Speaker 02: One is final and binding on the unions. [00:08:05] Speaker 02: You know, our contention is that if you're incorporating the contract, I'm sorry, unions that are part of the agreement, but if you're incorporating [00:08:17] Speaker 02: the term, the plan into your agreement, you're incorporated by a reference. [00:08:23] Speaker 02: That means you have to go beyond this physical contract and look at the terms of the plan and who that calls. [00:08:30] Speaker 04: But if anybody's covered, why is there an offering to be part of the collective bargaining agreement? [00:08:38] Speaker 04: If anybody essentially is going to be covered, why is there necessary for there to even be an offering to the [00:08:46] Speaker 04: UA in this regard, which they refuse to be a part of. [00:08:50] Speaker 02: Yes, I would argue that the fact that there is no collective agreement between the UA and JEMMA isn't really relevant for these purposes. [00:09:02] Speaker 02: The fact of the matter is the UA can file a plan complaint under this language. [00:09:10] Speaker 02: The plan itself is a contract between JEMMA and the UA. [00:09:18] Speaker 02: with regard to the, again, addressing your issue with regard to the question of it being binding only on unions. [00:09:26] Speaker 02: Again, I would argue that if you're stipulating to the plan a collective bargaining agreement, you are in fact incorporating the plan into your agreement. [00:09:38] Speaker 02: And there is, there is [00:09:41] Speaker 02: case law, which I think backs up that claim cited in our briefs. [00:09:47] Speaker 03: But with respect to the people that you're in a collective bargaining agreement with, the only reason we began by saying Gemma is subject to the plan based on the collective bargaining agreement. [00:10:02] Speaker 03: That's how they're subject to the plan in this case. [00:10:04] Speaker 07: Right. [00:10:05] Speaker 03: And it has complied with this collective bargaining agreement according to paragraph [00:10:10] Speaker 03: So I don't see what the issue is. [00:10:13] Speaker 03: And my question for you is under your reading of this provision, can any random union that's subject to the plan come in, demand work from Gemma? [00:10:23] Speaker 03: And if Gemma says no, they can go to arbitration and try to buy on Gemma to hire them? [00:10:27] Speaker 03: Because that seems to be what's going on here. [00:10:30] Speaker 02: No, it's not any random union. [00:10:32] Speaker 02: It's any union that is bound to the plan. [00:10:37] Speaker 03: But that's almost all unions, isn't it? [00:10:38] Speaker 03: Building construction unions, because you're the best of the plan just by membership and building and construction industry. [00:10:45] Speaker 03: Yes. [00:10:46] Speaker 03: So that just seems very broad and not consistent with the terms of arbitration. [00:10:51] Speaker 03: You only have to arbitrate based on what you've agreed to arbitrate. [00:10:55] Speaker 03: That's sort of a basic principle. [00:10:57] Speaker 03: So why do you have to arbitrate with any random union that comes in and wants work? [00:11:02] Speaker 02: Well, I think in part because the [00:11:07] Speaker 02: Paragraph one clearly allows the U.A. [00:11:10] Speaker 02: to file a plan complaint because it is working on the Burnsey project for a subcontractor. [00:11:19] Speaker 03: But it doesn't bind you? [00:11:22] Speaker 02: The plan provides for final unbinding resolution. [00:11:27] Speaker 02: Among unions? [00:11:28] Speaker 02: No, no. [00:11:30] Speaker 02: The plan is a contract between the building trades department and [00:11:37] Speaker 02: and multi-employer associations, employers and the unions become bound to it individually. [00:11:44] Speaker 03: So what's your best argument for finding GEMMA based on the plan and the JCU? [00:11:50] Speaker 02: I think it's a number of things. [00:11:53] Speaker 02: I think the jurisdictional disputes provision merely incorporates [00:12:06] Speaker 02: the plan, and it incorporates it by reference. [00:12:11] Speaker 02: The plan basically says that it issues decisions that are final and binding, and I believe that answers your question. [00:12:32] Speaker 05: Isn't your argument, though, that [00:12:35] Speaker 05: because Gemma and what I'll call the parent UA ended into an agreement that any subsidiary union of UA gets the benefit of that agreement. [00:13:04] Speaker 05: In other words, the subsidiary union here is not a random union, but rather it gets the benefit of its parents agreement with the employer at issue. [00:13:26] Speaker 05: Or have I misunderstood your argument? [00:13:31] Speaker 06: Yes, the plan is a... Yes, I've misunderstood your argument, or yes, I'm accurate. [00:13:40] Speaker 02: No, I think that's accurate, Your Honor. [00:13:43] Speaker 03: UA is a subsidiary of which union? [00:13:45] Speaker 03: That's an agreement with Gemma? [00:13:50] Speaker 02: I'm sorry. [00:13:51] Speaker 02: The UA is bound to the plan. [00:13:53] Speaker 02: Its local unions, its affiliated local union worked on the warranty site for a subcontract. [00:14:02] Speaker 04: That's not the question. [00:14:06] Speaker 03: Maybe I misunderstood Judge Rogers' question. [00:14:09] Speaker 03: I thought she said if UA is the subsidiary of a union that has entered a contract with Gemma, then UA may benefit from that. [00:14:17] Speaker 03: But factually, and you said yes, but factually I'm saying which union is UA a subsidiary of that has entered a contract with Gemma? [00:14:28] Speaker 02: Right. [00:14:28] Speaker 02: I think I misunderstood the question. [00:14:29] Speaker 02: UA is not a subsidiary with the oil makers. [00:14:31] Speaker 05: The other way around. [00:14:33] Speaker 06: Yeah. [00:14:36] Speaker 06: So what is your answer now that you understand and you say my question is based on a false premise? [00:14:50] Speaker 07: I'm not sure I understand your question, Your Honor. [00:14:54] Speaker 05: Do you understand Judge Pan's question? [00:15:03] Speaker 07: Can you reset the question? [00:15:05] Speaker 03: Um, I guess my question was, what is your best argument for how UA gets to bring this action when it does not have a collective bargaining, um, agreement with Gemma and is, I guess, not a subsidiary of the Boilermakers or the Ironmakers that do. [00:15:30] Speaker 03: And I think, [00:15:32] Speaker 03: you're saying it's a subcontractor doing work on the Guernsey project. [00:15:38] Speaker 03: But I still don't see, as a subcontractor, how UA gets to find GEMMA. [00:15:47] Speaker 03: Because it's not within the terms of the JCUs that GEMMA did sign with the Boilermakers and the Ironworkers. [00:15:56] Speaker 03: And it appears that UA is not a subsidiary of the Boilermakers and the Ironworkers. [00:16:01] Speaker 03: I still think you're a random union coming in trying to find Gemma. [00:16:06] Speaker 03: I think that you dispute that, but I'm trying to understand what's your best argument for why that's not the case. [00:16:11] Speaker 07: Right. [00:16:12] Speaker 02: I think the point we're trying to make is that [00:16:32] Speaker 02: There is no requirement of a collective bargaining agreement between that's it's sort of that's kind of a repairing argument. [00:16:40] Speaker 02: There's no need for a collective bargaining agreement between the UA and Gemma in this. [00:16:46] Speaker 03: That's the only thing that binds Gemma to the plan. [00:16:49] Speaker 03: The collective bargaining agreement with the Boilermakers. [00:16:52] Speaker 02: Yes, that binds Gemma to the plan. [00:16:54] Speaker 03: That's the only way that your client gets to enter arbitration with the other union. [00:17:01] Speaker 03: The collective bargaining. [00:17:03] Speaker 02: Right. [00:17:04] Speaker 04: Jim, excuse me, you a not have had a direct action against Gemma this contractually through NLRA or some other method. [00:17:15] Speaker 02: The point is that the plan itself. [00:17:18] Speaker 02: Once parties stipulate to the plan itself, the plan itself becomes a contract between the parties. [00:17:25] Speaker 02: And under the terms of the plan, the UA was well within its rights to seek a plan arbitration and enforce plan arbitration. [00:17:33] Speaker 04: And you say once the parties, though, to the contract, which UA is not a party to the contract. [00:17:41] Speaker 02: Yes, the UA is not a party to that particular agreement. [00:17:44] Speaker 02: But it is allowed to seek plan arbitration pursuant to that agreement. [00:17:52] Speaker 02: It sought the plan arbitration, and it got an award under the terms of the plan. [00:18:01] Speaker 02: The decision is final and binding, and it's binding on all parties. [00:18:06] Speaker 02: And our argument is that the [00:18:14] Speaker 02: the the plan's terms are incorporated by reference. [00:18:20] Speaker 04: And I don't think that the outside agreement between UA and the subcontractor is part of the record, right? [00:18:29] Speaker 02: It's not part of the record, but it is in the record that the UA works on [00:18:34] Speaker 02: on jobs with subcontractors. [00:18:38] Speaker 02: That's not a matter of dispute. [00:18:41] Speaker 04: Right, but I guess it's kind of begging the question about whether or not there were some remedies in that contractual relationship. [00:18:56] Speaker 02: All the parties were stipulated to the plan. [00:19:00] Speaker 02: The UA pursued the case under the plan. [00:19:04] Speaker 02: The terms of the plan may get final and binding on all parties, including JAMA. [00:19:34] Speaker 04: We've also got a statement in the record that essentially states that if UA had signed the document, then the other unions that are part of the plan would have relinquished their right with respect to this jurisdictional dispute. [00:19:53] Speaker 04: And so at least in that regard, these other unions also believe that UA would have needed to be part of this agreement. [00:20:03] Speaker 02: The other unions, well, I don't think the other unions took that position. [00:20:14] Speaker 02: I think what happened here is that the work was assigned to these unions because the UAE was not signatory to immigrating with the JMA. [00:20:35] Speaker 02: But the UA, oh, I'm sorry. [00:20:42] Speaker 02: I think that the. [00:20:53] Speaker 04: Was there anything else that you wanted to add? [00:20:55] Speaker 04: You know, you answered our questions, but was there anything else that you wanted to add? [00:21:00] Speaker 02: Not at the moment. [00:21:01] Speaker 02: I'm going to reserve time for Revalda. [00:21:03] Speaker 04: OK, thank you. [00:21:20] Speaker 07: Good morning. [00:21:21] Speaker 01: My name is Cecil Dastry. [00:21:22] Speaker 01: I'm representing Gemma, who's the respondent appellee in this case. [00:21:27] Speaker 01: Since 1960, in the Sea Workers Trilogy, the United States Supreme Court has ruled, it's been the law of the land, that the only way to arbitrate a dispute between a union and a company is that there has to be an agreement to arbitrate that dispute. [00:21:44] Speaker 01: And that has been the case all the way through since 1960. [00:21:48] Speaker 01: This matter here is proceeds from a project, a large construction project in Southeastern Ohio. [00:21:57] Speaker 01: It's a power, it's a gas-fired power turbine power plant that was being constructed in a relatively remote place in Southeastern Ohio. [00:22:07] Speaker 01: So Jena is the project constructor. [00:22:09] Speaker 01: And before starting construction, it attempted to negotiate AF pre-hire agreements, which is legal in the LRA and the construction industry. [00:22:19] Speaker 01: Pay that pre-hire agreements with the trade unions, because it needed skilled labor to perform that work. [00:22:25] Speaker 01: In particular, the dispute to work in this case doesn't involve normal plumbing. [00:22:29] Speaker 01: It involves high-pressure welding of gas and steam that's coming through that. [00:22:36] Speaker 01: So it needed skilled labor. [00:22:38] Speaker 01: Gemma was also concerned as it started this project that it wouldn't have enough, because it was a years long project, wouldn't have enough skilled labor to complete it. [00:22:47] Speaker 01: The unions wouldn't be able to supply enough labor, whether it was volume or skill sets. [00:22:52] Speaker 01: So there are provisions in the job compliance agreements that JCUs, these are the collective bargaining, that Gemma installed and negotiated with the oil makers and with the onion workers that permits Gemma to assign work [00:23:06] Speaker 01: to other source labor, to outside subcontractors, to non-union labor in the event that they didn't have skilled labor or there wasn't enough people. [00:23:16] Speaker 01: And so that's how this case started. [00:23:19] Speaker 01: So at the beginning, it negotiated a job compliance understanding, a collective bargaining agreement with the ironworkers. [00:23:25] Speaker 01: It negotiated a collective bargaining agreement with the boilermakers. [00:23:29] Speaker 01: And it attempted to negotiate a collective bargaining agreement with the plumbers. [00:23:33] Speaker 01: And it offered the plumbers the same agreement, essentially the same agreement, that the iron work is signed and the boiler work is signed, but DOA didn't sign. [00:23:43] Speaker 01: When the project started, they got to the phase where they were doing high pressure welding, John signed that work and asked the iron workers and the boiler workers to do that work. [00:23:54] Speaker 01: And they proceeded to do that work. [00:23:56] Speaker 01: And then this case started after that. [00:23:58] Speaker 01: So then there was a demand to arbitrate before the plan. [00:24:03] Speaker 01: And Gemma took the position at the plan that it didn't have jurisdiction, one, because it hadn't signed a collective borrowing agreement with the UA. [00:24:12] Speaker 01: And Judge Rogers, there is nothing in the record. [00:24:15] Speaker 01: There is no contract in the record between Gemma and the International Commerce Union [00:24:23] Speaker 01: Or any other record that binds to the point. [00:24:28] Speaker 01: Okay, there's no contract whatsoever. [00:24:30] Speaker 01: So, the case proceeded in the plan, the position that the plan didn't have jurisdiction. [00:24:37] Speaker 01: We didn't appear in the plan didn't filing positions. [00:24:39] Speaker 01: Didn't didn't offer any evidence. [00:24:42] Speaker 01: It was two arbitrations. [00:24:43] Speaker 01: The first arbitrator basically said, look, there's no collective bargaining agreement. [00:24:48] Speaker 01: I don't have any authority to sign the work to the UA because you don't have a collective bargaining agreement. [00:24:54] Speaker 01: There was an appeal or review process. [00:24:56] Speaker 01: A second arbitrator, a gentleman named Hirsh, decided, one, that he had jurisdiction over Gemma, and two, he ordered Gemma to assign the work to the plumb to the UA. [00:25:07] Speaker 01: The problem was, and the problem is, that there is no underlying collective bargaining agreement, either an AF pre-hire agreement between Gemma and the UA, or a post-hire, like Section 9, regular collective bargaining agreement between Gemma and the UA. [00:25:22] Speaker 01: So the issue here in this case is whether or not that the plan had jurisdiction over GEMMA and whether or not its order to assign work to GEMMA violates federal labor law, which I believe it does, because it essentially opposes a collective bargaining relationship between the UA and GEMMA that doesn't exist and has never existed in this project. [00:25:47] Speaker 01: So Judge Kohler-Cotelli rendered a decision and again we [00:25:52] Speaker 01: Opposition before the district court was not only adjacent to sit by here, didn't bind Gemma to the decision of the tribunal and didn't have, we didn't see to the jurisdiction of the tribunal with respect to the UA, but also there's a variety of NRA violations in connection with the award by the plan. [00:26:12] Speaker 01: So, Judge, this report cited more provisions in the J.C.U.s that are relevant here. [00:26:19] Speaker 01: First is is paragraph one of the J.C.U.s, which is record 033. [00:26:24] Speaker 01: It says that Gemma can sign work to subcontractors or other source labor at its discretion as it need. [00:26:32] Speaker 01: That's number one. [00:26:34] Speaker 01: Number two, at 034 of the record, there's an integration clause, which is really important because my friend is arguing that somehow there's another agreement where the plan itself provides jurisdiction. [00:26:46] Speaker 01: So there's an integration clause here that says that the only agreement [00:26:49] Speaker 01: The only agreement between the union, the ironworkers and the boilermakers, is that JCU. [00:26:54] Speaker 01: There's no other agreement that comes in. [00:26:57] Speaker 01: Very important, I think, provision in the district court's decision. [00:27:01] Speaker 01: And then number three was the work jurisdiction language, which is in the supplement in the back of the JCUs that talks about paragraph one, which is the unions can arbitrate their dispute [00:27:18] Speaker 01: between themselves in terms of jurisdiction with the plan. [00:27:22] Speaker 01: But Gemma is not bound by the plan. [00:27:25] Speaker 01: And the plan's provisions or the plan's decisions are binding on the unions, but not on Gemma. [00:27:30] Speaker 01: In fact, the third paragraph of the JCU specifically says that Gemma retains the right to assign the work to other source unions or to others as it sees fit. [00:27:42] Speaker 01: So that's a contract. [00:27:44] Speaker 01: And that's what's in front of the court right now. [00:27:46] Speaker 01: So our position is that the district court's decision was based on a clear and unambiguous language of the JCUs. [00:27:57] Speaker 01: that the judge did not apply the wrong standard. [00:28:00] Speaker 01: There's a clearly convincing discussion in the district court's decision, but actually it was, if you look at what the judge was commenting on, it was the other arbitration provision in the JCUs, the violation of the agreement. [00:28:13] Speaker 01: You didn't pay the right rate or you didn't pay benefits. [00:28:17] Speaker 01: That's a general arbitration, grievance arbitration provision in the JCUs that isn't even relevant here because this is not a contract between the UA in general. [00:28:27] Speaker 01: So basically our position, it really is that there's nothing else in the record that the UA could rely upon to somehow bootstrap or jump into jurisdiction with the plan and therefore the plan had no jurisdiction here and the order of the plan should be vacated. [00:28:51] Speaker 01: So we asked for a firm to the district court's decision. [00:28:55] Speaker 01: If you have any questions, I'll be happy to answer. [00:28:59] Speaker 07: Thank you. [00:29:18] Speaker 02: I apologize for perhaps misunderstanding your questions earlier. [00:29:22] Speaker 02: Let me restate my argument. [00:29:27] Speaker 06: This is Council for Appellants. [00:29:30] Speaker 02: Yes. [00:29:32] Speaker 02: Yes, sir. [00:29:44] Speaker 02: General claims that the UAE can't point to any language to support his claim. [00:29:50] Speaker 02: But I want to reiterate. [00:29:52] Speaker 02: that GEMMA's JCU requires all jurisdictional disputes, all jurisdictional disputes, even those involving other unions that have collective bargaining agreements with subcontractors to be submitted to the plan. [00:30:05] Speaker 02: This enhances GEMMA's agreement to submit all jurisdictional disputes to the plan. [00:30:11] Speaker 02: Moreover, this is the point I was trying to make earlier, GEMMA's incorporation of the plan into the JCUs logically requires consideration of the plan's provisions. [00:30:20] Speaker 02: And this expands the arbitrability analysis beyond the CJCUs. [00:30:27] Speaker 02: The Supreme Court has held that to interpret a collective bargaining agreement, it is necessary to consider the scope of other related collective bargaining agreements, as well as the practice, usage, and custom pertaining to such agreements. [00:30:40] Speaker 02: This consideration is especially appropriate where the collective bargaining agreement in question incorporates other agreements by reference. [00:30:49] Speaker 02: And that's a point that's been made by the DC Circuit and BP Amoco Corporation. [00:30:54] Speaker 02: BP held that collective bargaining may incorporate another document by reference without using that phrase if the collective bargaining agreement evinces an intention to make that document part of the agreement. [00:31:05] Speaker 02: And in this particular case, Gemma has very clearly [00:31:10] Speaker 02: uh agreed to submit all jurisdictional disputes including jurisdictional disputes involving unions that were for subcontractors on the Quincy project to the plan and they are we make an excursion into the into the rules and regulations of the plan we see that it says this decision of the arbitrator shall be finding and binding on all parties to the dispute um [00:31:38] Speaker 03: I guess, though, the argument would be that JEM is not a party to this dispute. [00:31:43] Speaker 03: Well, under the JCU, it's disputes between and among unions and other unions. [00:31:52] Speaker 02: It is a party to the dispute, and the contractors are always parties to jurisdictional disputes. [00:31:59] Speaker 02: The contractor is a party to a jurisdictional dispute under the specific terms of the plan. [00:32:07] Speaker 02: In fact, the contractor can initiate plan cases under the... With respect to unions that they've entered a collective bargaining agreement, but not with respect to others. [00:32:21] Speaker 02: I think the... [00:32:22] Speaker 02: The larger point here is that the collective bargaining agreement doesn't have to be between JAMA and the UA. [00:32:30] Speaker 02: The plan simply requires that the parties be bound. [00:32:35] Speaker 03: But I think the fundamental issue is JAMA entered collective bargaining agreements with these two other unions. [00:32:42] Speaker 03: And there is a provision within that collective bargaining agreement, this JCU, that does allow UA to dispute [00:32:51] Speaker 03: jurisdiction among unions, which it has done. [00:32:56] Speaker 03: But then this JCU says that the decisions rendered are final and binding on the union and other affected unions. [00:33:04] Speaker 03: So this JCU doesn't bind GEMMA to abide by what the arbitrator said. [00:33:10] Speaker 03: And to the extent GEMMA is part of the plan, it never intended to the extent that we are looking at [00:33:18] Speaker 03: the rules of arbitration. [00:33:19] Speaker 03: It never intended to be bound to an arbitration with GEMMA. [00:33:24] Speaker 03: It was nowhere mentioned in this case. [00:33:26] Speaker 02: With UA? [00:33:27] Speaker 03: With UA, right. [00:33:29] Speaker 02: My point is, Your Honor, that [00:33:32] Speaker 02: Gemma bound itself to the plan by virtue of this provision, and in doing so, it incorporated by reference the terms of the plan itself. [00:33:42] Speaker 02: And under the terms of the plan itself, Gemma is in fact bound to to to arbitrate with the UA, and it is bound to treat that arbitration as final and binding [00:33:54] Speaker 02: and to comply with it. [00:33:57] Speaker 02: The terms of the plan also authorized the UA to seek enforcement of the arbitration award, which is precisely what it did in this particular case. [00:34:11] Speaker 02: The other language, and I want to address this, the other language that the district court relied on was the language in paragraphs three of the jurisdictional disputes provision, [00:34:20] Speaker 02: which refers to other source labor, non-union labor, which is not even applicable to this dispute, which involves union-represented employees. [00:34:33] Speaker 02: And it says the general retains the sole right to control and assign the jurisdictional duties of all work. [00:34:41] Speaker 02: Even if that provision is meant to relate to the entire jurisdictional dispute, [00:34:47] Speaker 02: section, under the plan, it doesn't infringe, the plan award doesn't infringe on that right. [00:34:54] Speaker 02: Under the plan, a contractor has the sole right to assign work to employees represented by a particular union in the first instance and is required to continue that original assignment unless otherwise directed by an arbitrator or there's an agreement between the unions. [00:35:08] Speaker 02: As noted, the JCUs also mandate that employer assignments be followed until the dispute is resolved and planned. [00:35:15] Speaker 02: So the JCU's retain the sole right to control and assign the jurisdictional duties for all work provision is necessarily limited to the initial assignment of work and is subject to change mandated by plan arbitration decision. [00:35:30] Speaker 02: So that's the way the plan works and that's the way this provision works. [00:35:33] Speaker 02: You're supposed to, the jurisdictional disputes are covered by the plan. [00:35:41] Speaker 02: Paragraph one specifically says that assignments are to be kept in place until the plan rules, which is obviously an implicit acknowledgement that the plan governs. [00:35:52] Speaker 02: The plan has the ability to make a decision as to all jurisdictional disputes, including jurisdictional disputes between GEMMA and the UA. [00:36:07] Speaker 02: Let me also point out that there is nothing in that [00:36:11] Speaker 02: jurisdictional dispute provision that expressly excludes Jemma from, exempts Jemma from plan arbitration or compliance with the plan. [00:36:22] Speaker 02: In fact, in its briefing, Jemma actually says that the provision expressly, they use that word, expressly excludes Jemma from plan arbitration. [00:36:35] Speaker 02: from compliance with plan arbitration. [00:36:39] Speaker 02: It does not. [00:36:40] Speaker 02: The language does not do that. [00:36:42] Speaker 02: And if General wants it to exclude itself, it could have easily knew how to do that. [00:36:47] Speaker 02: Because in the third paragraph, you'll see it, they do make a point of excluding anything involving other source labor from the plan. [00:36:54] Speaker 02: But they don't do that with regard to disputes between unions and union-represented employees. [00:37:04] Speaker 02: So the standard under the seal workers trilogy and that is the applicable standard here. [00:37:13] Speaker 02: The standard used by the lower court, particularly clear standard, was obviously inappropriate. [00:37:18] Speaker 02: She took that from right feet maritime, a case that involved [00:37:21] Speaker 02: whether a statutory claim could be required to be processed under arbitration, a collective arguments arbitration. [00:37:30] Speaker 02: And that's not the case here. [00:37:33] Speaker 02: We're not talking about statutory claims in this case. [00:37:39] Speaker 02: So what you have here is the district court analyzing this jurisdictional dispute provision pursuant to an improper standard. [00:37:47] Speaker 02: The proper standard is provided by the Steelworkers Trilogy. [00:37:50] Speaker 02: And so this trilogy, which recognizes the policy in favor of arbitration and the way it maintains industrial peace, makes it very clear that if you want to avoid the responsibility to arbitrate, you need forceful evidence, forceful evidence, positive assurance that you are excluded. [00:38:17] Speaker 02: And I would argue that there's nothing in this jurisdictional dispute provision that constitutes forceful evidence that GEMMA is not obligated to arbitrate this dispute. [00:38:34] Speaker 02: I would also point out that both arbitrators in this case concluded that GEMMA was in fact subject to the plan. [00:38:41] Speaker 02: not just the arbitration that's an issue here, but even the first arbitration to which my friends refer, both of them concluded that, in fact, this was arbitral and general was bound. [00:38:56] Speaker 02: I realize that the court doesn't have to defer to an arbitrator's opinion, but I think the case law suggests that the arbitrator's opinion should be taken into account. [00:39:05] Speaker 03: The first arbitrator did not find general bound. [00:39:07] Speaker 02: Excuse me? [00:39:08] Speaker 03: The first arbitrator did not find general bound. [00:39:10] Speaker 02: Yes, he did. [00:39:11] Speaker 02: What he found was that all the parties were subject to and bound to the plan. [00:39:17] Speaker 03: But then he went through the... Gemma wasn't bound and Gemma appealed and then you got the second arbitrator that... No, no, no. [00:39:23] Speaker 02: No, what happened was the first arbitrator concluded that all the parties were bound to the plan. [00:39:29] Speaker 02: But then in going through the decisional criteria of the plan, [00:39:35] Speaker 02: He said, well, there's no collective bargaining agreement here. [00:39:38] Speaker 02: So even though the decision, decisional criteria of the plan would suggest that it's the UA's work, I'm not going to apply those criteria. [00:39:47] Speaker 02: So he didn't say that, that, uh, that general was not balanced plan. [00:39:53] Speaker 02: In fact, he found that it was bound second over trader specifically found that Jen was bound and pointed out there's nothing in the plan that requires a [00:40:05] Speaker 02: a contract and have a collective bargaining agreement with one of the contending unions. [00:40:10] Speaker 02: There's nothing in the plan that requires that. [00:40:13] Speaker 02: And Gemma knew that when it incorporated the plan into its collective bargaining agreement. [00:40:18] Speaker 02: It knew that and it accepted that term. [00:40:21] Speaker 02: Just as it accepted all the other terms, which I, as I mentioned earlier, are incorporated by reference. [00:40:28] Speaker 02: into this agreement, including the terms of the procedural rules and regulations of the plan that say that these decisions are final and binding. [00:40:40] Speaker 02: The provisions of the plan that say that the parties to the dispute are required to comply with the decision of the plan. [00:40:49] Speaker 02: I don't think Gemma can help in both ways. [00:40:51] Speaker 02: They obviously wanted the plan. [00:40:54] Speaker 02: They included the plan in these JCUs. [00:40:59] Speaker 02: They drafted these JCUs. [00:41:00] Speaker 03: Why isn't it that GEMMA is bound to the plan with respect to the unions that had signed the JCUs? [00:41:04] Speaker 03: I'm sorry. [00:41:05] Speaker 03: Why is it not that GEMMA is bound to the plan with respect to the ironworkers and the boilermakers? [00:41:11] Speaker 03: Because that's who they signed the JCU with. [00:41:14] Speaker 02: That's not how the plan works. [00:41:17] Speaker 02: Once you stipulate the plan, the plan covers you comprehensively. [00:41:28] Speaker 03: But what if there's a conflict between what the plan says and the JCU? [00:41:32] Speaker 02: I think if you're incorporating the terms of the plan, if you're consciously adopting this mechanism, which offers tremendous advantages to GEVO because it bars and picketing work stoppages and impediments to job progress, if you're incorporating that, then you buy the whole package. [00:41:54] Speaker 02: You buy the package that says that you're bound to any plan decision. [00:41:59] Speaker 02: You buy the package that says these decisions are final combining on you. [00:42:05] Speaker 03: But you only get those benefits with respect to the unions that you have collective bargaining agreements. [00:42:13] Speaker 02: They're obviously seeking those benefits with regard to other unions too, because the jurisdictional dispute provision often covers disputes with other unions on the project that have agreements with subcontractors. [00:42:28] Speaker 02: It's Germany that agreed and drafted this provision that brought the U.N. [00:42:32] Speaker 02: within the ambit. [00:42:33] Speaker 02: And it's obviously general thought it was in its interest to ensure that any jurisdictional dispute between the lawmakers, the iron workers, and any other union on the project should be resolved peacefully pursuant to the terms of the plan. [00:42:50] Speaker 03: Thank you. [00:42:51] Speaker 03: I think I understand her. [00:42:53] Speaker 04: Okay, thank you. [00:42:54] Speaker 04: Anything further, Judge Rogers? [00:42:56] Speaker 04: No, thank you. [00:42:57] Speaker 04: Thank you. [00:42:58] Speaker 04: The case is submitted.