Service, Hospital, Nursing Home & Public Employees Union, Local No. 47 v. Commercial Property Services, Inc.Service, Hospital, Nursing Home & Public Employees Union, Local No. 47 v. Commercial Property Services, Inc.
The novel and underlying issue raised in these proceedings is whether a non-signatory to a collective bargaining agreement who does not stand in a successor relationship to a signatory to the agreement or to its work force can be bound by the grievance and arbitration provisions of that contract. In a suit brought by Service, Hospital, Nursing Home and Public Employees
I.
Local 47 has been a party to a series of collective bargaining agreements with the defendant, Commercial Property Services, Inc., covering the employees engaged in the Cleveland area in janitorial and custodial work since the founding of the company in 1974. The most recent of these agreements, effective May 1, 1981, to April 30, 1984, contains three provisions that are pertinent to this proceeding. Article XI is a job security provision and requires a signatory employer who takes over an account previously serviced by another signatory employer to retain the prior employer’s employees at the same wages, terms, and hours of work.
any ... corporation, firm, or any other entity which is engaged in janitorial work and is in any way a subsidiary or related entity to any Employer covered by this Agreement. Specifically and without limitation, this Agreement hereby includes any entity engaged in janitorial work which is operated in whole or in part by any officer, director or any person employed by any Employer covered by this Agreement, and further includes any entity engaged in janitorial work in which any investor in any Employer covered by this Agreement has any interest of any kind.
Finally, Article XIX requires the parties to settle any differences “as to the meaning of or application of provisions of this agreement” in a four-step process terminating in final and binding arbitration.
Local 47 also had a three-year contract with National Cleaning Contractors (National), executed in November 1982. Local 47 members employed by National cleaned and maintained two downtown Cleveland office buildings (the Rockwell properties and the Illuminating Building), which were operated by First Union Management, Inc. First Union entered into subcontracts with independent companies for janitorial and custodial services.
When the cleaning contract between National and First Union expired in 1982, First Union solicited bids from other cleaning companies. National and CPS, signatories to a master agreement with Local 47, both submitted bids which were rejected, and First Union ultimately awarded the contract to CCM, a non-union firm. Na
In February 1983, Local 47 discovered that there was a close relationship between CCM and CPS. This discovery drew forth the remainder of the corporate cast in these proceedings. The principal actors are CPS and CCM, and playing a major role because of his relationship with each of them is Patrick Cassese. He and twelve other investors formed CPS, an Ohio corporation, in 1974 and Cassese operated the company and owned 49 percent of its shares. In 1978, CPS created a wholly-owned subsidiary, Total Systems Management, Inc. (TSM) to act as a consulting firm for small tenant buildings. TSM subcontracted all services to other companies, in-eluding both CPS and CCM, employed no one subject to Local 47’s jurisdiction, and ceased business in 1982. In November 1982, Cassese formed Antares, Inc., a Pennsylvania corporation, for the express purpose of purchasing the shares of the other twelve investors in CPS. The district court found that Cassese owned all of the capital stock of Antares which in turn owned 100 percent of CPS.
Jack Cornachio, a nephew of Cassese, acquired the CCM business in 1976. Because of financial difficulties, Cornachio entered into an agreement in October 1982 with Cassese to sell him 70 percent of the shares but with an arrangement to retain 50 percent control. Cornachio continued as president and in control of CCM operations. Cassese’s personal attorney, Robert Rosenfeld, served as one of CCM’s two directors and as its secretary-treasurer. In fact, Cessese personally represented CCM in its successful negotiations with First Union, after CPS’s bid had been rejected.
With the foregoing information in its possession, Local 47 launched its attack on CPS and CCM. First, it sent a letter to Cassese as president of CPS alleging that CPS violated the work preservation clause of the collective bargaining agreement with Local 47 by replacing Local 47 members with non-union employees at the two First Union buildings and at five other buildings, Lakeland Medical, Young Medical, Shaker Medical, Curtis Industries, and Diamond Shamrock. The letter informed CPS that unless it agreed to restore the former employees, Local 47 would seek injunctive relief to compel arbitration.
„T1 , , . . ,, „ When CCM refused to retain the former National employees pending arbitration, Focal 47 filed suit against CPS, CCM First ?T’ Antares> and TSM’ Local 47.als0 iúf a forT a temporary restraining order and First Union mov®d to dlsmiss’ After a hea™« on TSM.
jn September 1983, the court granted Local 47>s motion for summary judgment, order¡ng CCM and CPS to arbitrate with Local 47 the questions of whether CCM was bound by the terms of the CPS-Local 47 agreement and whether the agreement had been breached. The court dismissed Antares and TSM from the lawsuit and denjed CCM’s motion for partial summary judgment,
. CCM and CPS appeal from the rulings granting Local 47’s motion for summary judgment, and CCM appeals from the denial of its motion for partial summary judgment. Local 47 cross-appeals from the dismissal of First Union, TSM, and Antares and from the denial of injunctive relief.
CPS and CCM argue that the court erred in granting Local 47’s motion for summary judgment and ordering them to arbitrate. They contend that before ordering arbitration, the court should have determined whether CCM was bound by the terms of the Local 47-CPS collective bargaining agreement.
In Howard Johnson Co. v. Detroit Local Joint Executive Board,
_ , , . , . The Grissoms sold their business to Howard Johnson, with an agreement expressly providing that Howard Johnson with certain exceptions would not assume the Gris-soms’ obligations, including those under the labor agreements covering employees at two establishments. Howard Johnson then terminated the Grissom employees and hired its own employees, few of whom previously had worked for the Grissoms,
The Grissoms admitted that the collective bargaining agreement required that they as signatories arbitrate. Howard Johnson, however, refused to do so. The Supreme Court held that Howard Johnson could not be bound to the collective bargaining agreement between the Grissoms and the Union, absent a judicial determination of substantial continuity or identity of the work force or assumption of the agreement to arbitrate by Howard Johnson.
The mere existence of the successorship clauses in the bargaining agreements between the unions and the Grissoms, however, cannot bind Howard Johnson either to the substantive terms of the agreements or to the arbitration clauses thereof, absent the continuity required by Wi^eV< when it is perfectly clear the Company refused to assume any obligations under the agreements,
Id. at 258, n. 3,
The Court distinguished its previous deeision in John Wiley and Sons v. Livingston,
What Local 47 seeks to do here is very similar to what the union sought in Howard Johnson, and the result must be the same. In this case, the signatory employer, CPS, continues as a viable entity with which the Union may bargain and arbitrate.
The leading Sixth Circuit case in this area is not to the contrary. In Local 6, Bricklayers International Union v. Boyd G. Heminger, Inc.,
The unions sought a remand with regard to Heminger only. This court reversed, holding that “[I]n signing these arbitration-agreements the parties agreed to ‘submit all grievances to arbitration, not merely those a court may deem to be meritorious.’ ” Id. at 131, quoting United Steelworkers v. American Manufacturing, Inc.,
Consistent with Heminger, the district court in the case at bar did not err in ordering CPS to arbitrate, for CPS, like Heminger, was a signatory to the collective bargaining agreement CPS must keep its promise to the Union to arbitrate grievances under the contract. However, we hold that a district court may not order a non-signatory to arbitrate a labor dispute, absent a specific finding that the relationship between it and the party bound to the agreement is such that it too is bound to arbitrate. See also General Drivers, Local Union No. 89 v. Public Service Co. of Indiana,
In the prayer of their amended complaint, Local 47 sought inter alia, to enjoin all the defendants from: “discharging the employees currently performing janitorial work” at the Rockwell and the Illuminating Buildings; “changing any of the wages, hours, or the terms and conditions of employment of said employees,” and directing the reinstatement of the employees discharged.
The district court denied injunctive relief on the ground that Local 47 failed to establish irreparable harm as a result of CCM’s actions. On appeal, Local 47 argues “that all [it] seeks is the reinstatement of employees it has represented for many years to the locations where CCM has taken that work away.” Brief for Local 47 In Answer to Brief of CPS at 16.
In Aluminum Workers International Union, Local 215 v. Consolidated Aluminum Corp.,
To obtain an injunction under Aluminum Workers, the Union must establish that the “underlying grievance is one which the parties are contractually bound to arbitrate” and must “satisfy the court that injunctive relief is warranted under ‘ordinary principles of equity.’ ” Id. at 442, quoting Boys Markets v. Retail Clerks Union,
In the instant case, the Union did not establish that the underlying grievance is one which CCM was bound to arbitrate. The district court could not have enjoined CCM, the non-signatory, without first determining that CCM was bound by the arbitration agreement. We therefore hold that absent a judicial determination that two corporations are alter egos or a singular employer, a court may not enjoin a non-signatory to an arbitration agreement from hiring non-union employees. Furthermore, on this record it appears that the Union employees at the Rockwell and Illuminating Buildings were never hired nor discharged by CPS, CCM or the other defendants. Thus, the district court did not err in denying Local 47’s motion for injunctive relief directing their reinstatement.
IV.
Local 47 also contends that the district court erred in granting First Union’s motion to dismiss. The court dismissed First Union on the ground that the court lacked subject matter jurisdiction under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1982). This court has stated in Metropolitan Detroit Bricklayers District Council v. J.E. Hoetger & Co.,
The Union relies heavily on Wilkes-Barre Publishing Co. v. Newspaper Guild of Wilkes-Barre, Local 120,
We therefore hold that a district court does not have subject matter jurisdiction over a non-signatory to a collective bargaining agreement, where no rights or duties of the non-signatory party are stated in the terms and conditions of the contract.
First Union originally moved to dismiss solely on the grounds that the court lacked subject matter jurisdiction over it under section 301. Local 47 then amended its complaint to include a pendent state law claim for tortious interference with contractual rights. Dismissal of this pendent claim was required once the federal claim was dismissed. See United Mine Workers of America v. Gibbs,
Local 47 also objects to the dismissal of TSM and Antares from the suit. It contends that the court should have ordered these corporations to arbitrate in order to “fully develop” the relationships among TSM, Antares, CCM, and CPS. As we held earlier in this opinion, a non-signatory to a collective bargaining agreement cannot be bound to its arbitration clause unless the court determines that the corporate veil between the non-signatory and signatory corporations may be pierced or that the corporations constitute a single employer. Moreover, in the instant case, Local 47 has never alleged that TSM or Antares violated the terms of the collective bargaining agreement. Furthermore, these corporations, as we have suggested, never hired nor discharged any of the employees whom Local 47 now seeks to reinstate.Therefore, the district court committed no error in dismissing the claims against TSM and Antares.
VI.
Finally, CCM asserts that the court erred in denying its motion for partial summary judgment. According to CCM, the record demonstrates that there are no material facts in dispute with regard to the single employer-alter ego issue and that judgment should have been entered for CCM as a matter of law. CCM’s argument is based on its contention that the district court should have made a determination on the single employer-alter ego issue. Had the court done so, according to CCM, it would have concluded that the facts as presented at the hearing and alleged by the parties could not support a finding that CPS and CCM were alter egos or constituted a single employer.
Local 47 argued in response to CCM’s motion for summary judgment that discovery has not been completed and that a determination by the court on the alter ego-single employer issue would be premature until further evidence has been presented. We agree. Local 47 has not yet had the opportunity to present the evi-dentiary support for its position that CPS and CCM constitute a single employer or are alter egos.
VII.
To recapitulate, we hold that the district court erred in ordering CCM to arbitrate under a collective bargaining agreement to which it was a non-signatory, and we remand for a determination of whether CCM and CPS constitute a single employer or alter egos, or whether the relationship between them is such that piercing the corporate veil separating them would be appropriate. We also conclude that the district court had no jurisdiction to entertain the merits of the state law claim against First Union. In all other respects, the judgment of the district court is affirmed.
In the appeal of CCM, No. 83-3761, each side will bear its own costs. In the appeal of CPS, No. 83-3762, costs are taxed against the appellants. In the cross-appeal of Local 47, No. 83-3788, costs are taxed against the cross-appellant.
Notes
. The relevant provisions of Article XI state:
JOB PROTECTION
Section 1. When an Employer takes over an account at which employees represented by the Union were previously employed, regardless of who was the Employer, the Employer shall not reduce the rate of pay, the other terms of compensation, or the number of employees and their hours of work, ... without the express written consent of the Union, unless one of the exceptions set forth in Section 2 of this Article may be applied.
******
Section 8. If an Employer takes over an account with which Local 47 has an Agreement other than this Agreement, the Employer will sign an Assumption Agreement prior to taking over the job. All conditions such as rates of pay, hours of work, seniority, vacations, holidays, ... shall continue as they previously existed.
. At the same time, Local 47 filed an unfair labor practice charge with the National Labor Relations Board (NLRB) against CPS, CCM, and First Union. CPS responded by filing a petition for unit classification with the NLRB by which it sought to define the number of its employees subject to the terms of the master agreement, Local 47 also filed unfair labor practice charges with the Board charging CPS with interfering with its employees’ bargaining rights and with assaulting its pickets at the Rockwell building,
. The district court found that approximately 2000 people are now engaged in janitorial and security guard work for CPS in Cleveland and Columbus, and in various cities in Pennsylvania, Colorado, and Texas. Service, Hospital, Nursing Home and Public Employees Union, Local No. 47 v. Commercial Property Services, Inc., No. C83-588 (N.D.Ohio Feb. 25, 1983) (order denying motion for temporary restraining order and dismissing First Union).
. The Howard Johnson court emphasized that "this is not a case where the successor corporation is the ‘alter ego’ of the predecessor___”
. CPS and CCM also contend that they may not be compelled to arbitrate without a determination by the National Labor Relations Board of the appropriate bargaining unit. The threshold question of whether CCM is bound by the CPS-Local 47 collective bargaining agreement does not require the determination of an appropriate bargaining unit. The matter would only warrant a submission to the Board if the district court found that CCM was bound by the collective bargaining agreement and if the arbitrator found that the agreement had been breached.
Counsel for CPS has brought to our attention the recent decision of this court in Aquabrom, Division of Great Lakes Chemical Corp. v. NLRB,
. In Boys Markets, the Court carved out an exception to the narrow strictures of section 4 of the Norris-LaGuardia Anti-Injunction Act, 29 U.S.C. § 104 (1982), by holding that when the underlying dispute is one over which the parties have agreed to arbitrate and ordinary equitable norms for relief have been met, a court may enjoin a strike in violation of a no-strike clause.
. Even in Wilkes-Barre Publishing and Painting and Decorating Contractors, there were close relationships between the parties and the signatories of the collective bargaining agreements. In Wilkes-Barre, the non-signatory party was a co-venturer in an enterprise which allegedly breached the collective bargaining agreement, and in Painting and Decorating Contractors, the non-signatory party was a non-profit corporation which consisted of representatives from the signatory employer associations and union. In the instant case, the connection between First Union and the collective bargaining agreement is tenuous: First Union has an agreement with an independent contractor, CCM, and COM is allegedly an alter ego of CPS, a signatory to the agreement.
. Local 47 also argues that the court erred in granting First Union’s motion to dismiss solely on the basis of evidence presented at the hearing on Local 47's motion for a temporary restraining order. Because we conclude that the court lacked subject matter jurisdiction over the claims against First Union, we do not reach this issue.
. This circuit has moved away from the position that the court has discretion to retain jurisdiction over a pendent state claim where the federal claim has been dismissed before trial. Compare Kurz v. Michigan,
. On appeal, CCM has apparently dropped its argument that the court lacks subject matter jurisdiction under section 301 because CCM was a non-signatory to the collective bargaining agreement.
. Local 47's motion for summary judgment and its response to CCM’s motion focused almost exclusively on the argument that the alter ego-single employer issue should be determined by the arbitrator rather than by the court.