*2 HANSEN, Circuit Judges.
HANSEN, Circuit Judge. Systemaire, Inc.' appeals the district court’s order granting summary judgment in favor of Sheet Metal Workers Interna- Association, (Lo- tional Local Union No. 36 36). cal In its summary order, judgment upheld district court a decision of a Adjustment Joint Board ordering (which $10,000 pay Board characterized as “damages”) to Lo- cal 36 for violating a bargaining collective (CBA). agreement The district court also $4,562.60 awarded attorneys’ fees of to Lo- cal which separately appeals.
I. Background
Facts and Procedural Systemaire is a mechanical contractor operating Louis, Missouri, in the St. area. Local 36 is a St. Louis labor union repre- senting sheet metal workers. Pursuant a collective bargaining agreement with Lo- cal Systemaire agreed assign certain specified work to Local also entered into collective bargaining union, agreement Pipefitters with another (Pipefitters). Union No. 562 A sub- overlap stantial exists Syste- maire’s agreement collective bargaining with Local company’s collective bargaining with agreement with respect to the work reserved and to assigned result, be to each craft. aAs “jurisdictional” disputes often arise be- tween the regarding Syste- two unions maire’s allocation its work between the two unions. bargaining
The collective agreement be- tween and Local 36 contains a provision addressing jurisdictional dis- Barker, Cook, E. Sally pute Schuchat & St. issue. The CBA states that “[i]f Louis, MO, for Appellee. signatory contractor is agree- to a labor (includ contractors of the affected and a Some union than one more
ment with adjudicate the opted to ing Systemaire) between the dispute arises the Nation disputes through every at- employs, the contractor crafts (NLRB) pursu Board Labor Relations al resolve said made to will tempt 10(k) §in procedure outlined ant to the any local or limited to including but *3 (NLRA). Act Labor Relations the National Disputes Board Jurisdictional national U.S„C. 160(k). Consequently, § See 29 and the The contractors may exist. which May the May 1995 to from any decisions by to abide agree union jurisdictional involving cases heard several Jurisdic- or national by any local made Pipefit- the 36 and disputes Local between App. (Appellee’s Board.” Disputes tional the decided In the NLRB ters. each 15.) the follow- also contains CBA The The Pipefitters. in of the dispute favor Pur- grievances. regarding ing language NLRB, however, an “area- refused to issue X of the 1 of Article suant to Section disputes all future ruling governing wide” or Employer CBA, “[grievances Rather, the two unions. between the interpretation or Union, of arising out the con particular relief “to the NLRB limited shall be Agreement, this of enforcement proceed gave rise to these troversy that directly in- Employer the settled between Local No. 562 Pipefitters Union ings.” represen- authorized duly the volved and (1995). 124, 130 (Systemaire), 320 NLRB Union, par- Both possible. if tative the jurisdictional dis- another April In conferences may participate in ties Pipe- and the Local 36 pute arose between choice.” of their through representatives Pipefitters threatened fitters. The 30.) In ad- App. at Separate (Appellee’s to award if refused strike dition, 2 Article X of the CBA Section handling pipe installation a material them not settled as “[gjrievances provides that Faced with Brands. project for Sunline may 1 of Article this provided in Section work, Systemaire to the competing claims the Local party to appealed by either work pipe installation concluded that the work Adjustment Board where Joint project mirrored in involved the Sunline case of Except ... performed was pre- NLRB had that the type of work deadlock, a Local Ad- Joint decision Pipefitters to the viously awarded and bind- be final justment Board shall Pipefit- project to awarded the Sunline (Id.) ing.” 69.) (Appellant’s App. ters. resolving a means of As con- filed its grievance Local 36 then the Me- Pipefitters, disputes, assignment of the Sunline cerning the of St. chanical Contractors Association article of grievance to the pursuant work (MCA), Air Metal and and the Sheet Louis grievance The Systemaire. with its CBA Associ- National Conditioning Contractors Adjustment came before the Joint (SMACNA) ation, Chapter estab- St. Louis (LJAB) in the CBA. provided Board jurisdictional commit- joint lished a local on the LJAB. Pipefitters hold no seats 25, 1995, February the committee tee. On person before appear Rather than jurisdictional dispute adjudicate tomet LJAB, sent letters. two Af- Pipefitters. 36 and the 116), between Local App. at (Appellant’s the first letter awarded hearing, the committee ter were that the issues Systemaire asserted Pipefitters. One disputed project jurisdic- they because were grievable unions, it later, Local 36 announced week two disputes tional com- recognize ruling the local in a longer would no the NLRB’s and that based on per- There is work by involving or similar previous mittee abide decisions. case Systemaire, the Sunline work by in the record that discloses no evidence formed by Systemaire correctly assigned jurisdictional dis- had been a “national existence of represented employees. pipe to its fitter putes board.” letter, which notably, Systemaire In the second was sent a few Most argued that the days hearing before the LJAB’s scheduled award did not draw its essence from the grievance, Systemaire again on the assert- collective bargaining agreement. Without ed that the was a one addressing the merits of pursue which it intended to before argument, CBA the district granted court NLRB, arguments but it also submitted its summary judgment in favor of Local 36 for (“In on the merits of the statute of limitations reasons. Adjustment event the Local Joint Board appeals. grievances
chooses discuss these our ”) ... asserting absence the work allo- II. cation had made to the on the project Sunhne inwas accord with the Discussion *4 “past practice.” proceed- area The LJAB In granting summary judgment in .hearing ed to hold its on the grievance on 36, favor the district court con January appeared 1997. Local 36 Systemaire’s cluded that defenses were case; person presented and its Systemaire time barred because the company did not 6, 1997, February did not. On the LJAB raise in a timely them action to vacate the unanimously issued its decision and found award. We review the district court’s Systemaire improperly that had awarded summary judgment determinations de project to Sunhne and Univ., novo. Amir See v. St. Louis 184 $10,000 damage levied assessment (8th Cir.1999). 1017, 1024 F.3d Systemaire. against The LJAB’s written is respect Syste- decision silent with to party A seeking to challenge the maire’s contention that the issue was not validity of an arbitration award generally grievable. must file a timely motion to vacate that Systemaire filed unfair practices labor award. See Group, Domino Inc. v. Char charges against both Local 36 and the Found., lie Parker Mem’l 985 F.2d Pipefitters before the NLRB. Systemaire (8th Cir.1993). 419-20 The failure to a file argument renewed its that project in timely motion to vacate an award also factually projects was identical to typically party bars a raising from later previously Pipefitters. awarded to the any defenses to the confirmation of the NLRB, however, declined to hold a award that could have been raised in the hearing on this matter. The NLRB con- vacation motion. Although See id. at 419. past assignments cluded that the could not 301(a) § of the Labor Management Rela serve as a attacking basis for the LJAB’s (LMRA) tions Act contains no statute of decision on the individual be- regarding filing limitations of a vaca cause the NLRB had dechned to issue an motion, 185(a), § tion see 29 U.S.C. we area-wide Consequently, decision. have held that a “district court must bor complaints dechned to issue on row a statute of limitations from state law Systemaire’s unfair practices labor analogous dispute.” most charges. Int’l Bhd. Elec. Workers v. Anderson Approximately Constr., Inc., seven months after the Underground 907 F.2d 75 decision, (8th Cir.1990) (citations omitted). LJAB’s Local 36 filed this action In this federal district court to enforce the analogous most state law the is Act, § LJAB’s award. See 29 U.S.C. 185. Missouri Uniform Arbitration which Systemaire answered and filed a counter- that a mandates motion to vacate an arbi claim asking the district court to vacate tration award be filed within 90 days after the award. Local 36 then delivery copy filed motion of a of the award to the summary judgment Systemaire re- moving party. See Mo.Rev.Stat. sponded 435.405(2). by raising § several defenses. sought could have Secondly, Systemaire re- undisputed that
It is prior to the declaratory injunctive relief decision or of the LJAB’s copy ceived arbitration, the arbitra- but vacate commencement of file a motion to did not days thereafter. could Finally, within 90 did not do so. tion vacate an action to fact, filed to it has never that it refused informed the LJAB have Hence, we must consider award. it did not do altogether, but arbitrate dis- precludes the such failure whether either. considering court from
trict Atlas, not “could inAs not award did the arbitration defense faced with impunity until back with sit bar- from the collective its essence draw summary judgment federal motion for agreement. gaining to In order court.” district Id. by Local Union is controlled This case defenses, Systemaire “should preserve Co., Conditioning Atlas Air No. 36 v. to of its refusal [LJAB] notified the have Air). Cir.1991) (Atlas (8th inAs F.2d brought an action vacate arbitrate or Air, three had least Atlas employer may An ...” the award Id. First, it could it. available to alternatives an a motion to enforce a defense to assert authority to the LJAB’s objected have have that could been arbitration award argue grievance, refused decide (citing vacate. Id. in an raised action the LJAB issue before *5 cases). grievance. merits of the proceeded to the object the issue was it that While did pre failed to Systemaire Because issue grievability argued the grievable, defense, to file a required it was serve its submissions, ad and then in its written 90-day period. to vacate the motion within it lost the in the event the merits dressed the correctly imposed The district court Sys- that We note argument. grievability bar, af judgment and its should be time joint the local that never asserted temaire firmed. (which Local 36 committee proper panel to was repudiated) the had Systemaire argues the extent that To to the LJAB. dispute, opposed the hear public on that the award is unenforceable essence, the issue Systemaire submitted that such reason policy grounds, and allocation of the work grievability of the the of exception an statute provides LJAB, the fact that given to the and issue limitations, for the reject argument we the its grievance on decided the the LJAB district court expressed by the reasons that merits, it determined that we assume opinion. under grievable allocation was the work attorneys’ of respect to the award With the Systemaire did not reserve the CBA. fees, district court that the we conclude ac record but issue on the proper for their determina- was the forum consideration in the LJAB’s quiesced, review, tion, after we conclude and Systemaire asserts issue. that threshold award should affirmed. cases, LJAB had dead prior in all that jurisdic inter-union over this same locked of the dis- Accordingly, judgments raised in when it issue was tional are affirmed. trict court and waited proceedings then unfair companion NLRB to rule on the BEAM, dissenting. Judge, Circuit ex charges. Systemaire practice labor probably whimsical According to the proce the same to follow pected LJAB Luce, publisher Clare Boothe comment of did not the LJAB with this but dure unpunished.” good goes “no deed Instead, the metal contractor sheet so. do prove point, opinion court’s seems with the Un of the LJAB voted members unlucky enough employer an is Syste- least when against the LJAB members of ion of the Na- jurisdiction under the to come maire. (NLRB) tional Labor Relations Board as it Even applying the arcane procedural presently is and staffed.1 Be- and constituted substantive requirements true, NLRB, lieving that this should not be I re- prevail. should still spectfully dissent. In granting summary judgment in favor of Local court concluded .district adopt I the court’s statement of the defenses were barred issues its statement of the facts and because the company did not raise them in procedural background. I write addition- a timely action to vacate the award. We ally only emphasize review the district summary court’s judg contractors, fellow caught in a squeeze re- ment determinations de novo. Amir v. St. sulting jur- from bickering continuous over Univ., (8th Louis 184 F.3d Cir. isdictional matters between Sheet Metal 1999). (Local 36) Local 36 I agree that a party seeking to challenge (Pipefitters), every made eq- effort to validity of an arbitration gener uitably resolve the numerous quarrels over ally must file a timely motion to vacate work to be done. helped cre- that award. Domino Group, Inc. v. Char agreed ate and by the abide decisions Found., lie Parker Mem’l 985 F.2d joint a local committee. (8th Cir.1993). 419-20 The failure to file Both represented unions were on this com- timely motion to an vacate award also mittee. typically bars a party from raising later any defenses to losing after one argument, re- confirmation of the award that could participate fused to have been further. raised in the vacation then took motion. Id. at problem directly Although 301(a) section refused, Management who Labor unreasonably my (LMRA) view, *6 Relations Act to issue an contains no statute ruling “area-wide” of limitations regarding filing the of a difficulty. solve the va This resulted in the motion, 185(a), § cation 29 U.S.C. we have wasteful and frustrating obviously need for held that a “district court must borrow a Systematize and other affected contractors statute of limitations from state law most to march back and forth to the NLRB with 2, analogous dispute.” Int’l Then, each dispute. similar when Local 36 Bhd. Elec. Workers v. Anderson Under instigated grievance before another local of Constr., Inc., (8th ground 74, 907 F.2d 75 tribunal, in stacked favor its because the Cir.1990). In this the most analo represented were not on this gous state law is the Missouri Uniform particular board, NLRB, local the standing Act, Arbitration which mandates that a procedural on murky technicalities and le- motion to vacate an arbitration award be gal reasoning, Syste- refused to hear ninety days filed within delivery after of a complaint $10,000 maire’s and set aside the copy of the award to the moving party. against assessment beleaguered the em- 435.405(2). § Mo.Rev.Stat. ployer imposed by unrepresentative the LJAB. The placed stamp district court its undisputed It Systemaire is that re- approval of on this result. The court now ceived a copy of the LJAB’s decision validates this unfortunate mistake. did not file a motion to vacate the arbitra- 1. “It is the Board's to strike a agency function bal an NLRB] not a labor as board-creat- among 'conflicting legitimate ance struggle against interests’ ed to aid labor in its the name, which will policy,' 'effectuate employer. national labor by Congress As shown its including those support who versus those who created it to be a board concerned with the Co., oppose Magnavox the union.” v. NLRB administration of relations' ‘labor in which 322, 326, 415 U.S. 94 S.Ct. rights employer 39 L.Ed.2d the jealous- of the are to be as (1974) (quoting 358 ly guarded NLRB v. Truck Drivers employee.” as those of the Leon- Union, 87, 96, NLRB, (9th 353 Cir.1953) U.S. 77 S.Ct. 1 ard v. 205 F.2d 357 (1957)). "Congress L.Ed.2d 676 (emphasis supplied). made [the pre- it was also indicated that Systemaire thereafter. ninety days within
tion award issue to the to take the pared action to filed an fact, never it has In previous cases this, it had done as I also NLRB Because of award. the vacate the against the had ruled where such whether must consider that we agree let- second Workers. Metal from Sheet the district court precludes failure that ter, told the LJAB that the defense Systemaire’s considering of a was the result grievance its essence not award did draw arbitration Pipefit- 36 and dispute between agreement. bargaining from collective such, not feel that we do and “[a]s ters con that case is this Local 36 contends by hearings are relevant these issues in Local Un prior our decision by trolled [LJAB], Instead, again once we will Int’l Metal Workers’ Sheet ion No. through the Na- grievances address these Co., Conditioning v. Air Ass’n Atlas (Appel- Relations Board.” tional Labor Cir.1991). Air, (8th In Atlas our F.2d 117.) goes letter The second App. lant’s faced, employer is an that when court held however, of the on, argue the merits which a grievance over with an unresolved with a and closes project grievance Sunline has assumed arbitration board Sys- ruling be that the Board’s request jur assumption of with which jurisdiction, for us to question The temaire’s favor. upon no disagrees, employer isdiction letters answer is whether alternatives. tice, employer has three jur- Board’s objection to an constitute can seek declar employer at 771. Id. isdiction, “reservation a sufficient from a court of injunctive relief atory or record,” that it did on the so question prior to the com jurisdiction competent nong- defense of asserted not lose now itself, assert of the arbitration mencement a motion to it failed to file rievability when of the issue grievability ing the lack vacate the award. did Systematize at 772. Id. presented. sufficiently I employer can conclude case. The do so this not of the grievability reserved the issue that it refuses arbitration board notify the (and 36 over it and Local altogether contest to arbitrate pro- work on the Sunline allocation of the the other of the issue when it now can assert ject such compel arbitra an action to party brings award does its defense that the tion). part in this did do so Id. CBA, even *7 its essence from the object can not draw Finally, employer case. a motion to vacate it not file authority, though refuse to did board’s the arbitration period. ninety-day issue before the within argue power objected to the LJAB’s Board, merits of proceed and Systemaire considered arbitrate “By making an to what Id. at grievance. issue, did submit nongrievable not jurisdiction express and an objection toas work allocation issue grievability of the on the record question reservation board, and made clear the local its defense.” employer [lose] not will] [the place proper NLRB was the believed the Id. 771-72. the em- dispute. Unlike to determine LJAB, Systemaire’s two letters Air, has not ployer Atlas scalpel-like precision, with while drawn waived or forfeited defense. that the work allocation firmly assert did judg- letter, I would reverse Accordingly, first grievable. In its issue was not remand this court ment of the district and September dated inconsis- proceedings not said, not feel case for further be advised we do “Please I decline my with views. would grievable; they rather tent here are the issues ap- in this to determine parties’ invitation disputes between Sheet are assignment the work whether or not peal Local 36 and Metal Workers 116.) pursuant to the CBA grievable issue was (Appellant’s App. Local 562.” ENTERGY, ARKANSAS,INC., an Ar parties. question That is best corporation; Entergy kansas Gulf by in the instance the district decided first States, Inc., corporation; Texas court. Entergy Louisiana, Inc., a Louisiana longer Because Local 36 would no be the corporation; Wolf Creek Nuclear prevailing party, I would also vacate the Operating Corporation, a Delaware attorneys’ award of district court’s fees. corporation; Omaha Public Power
District, public corporation po litical subdivision of the state of Ne braska, Plaintiffs-Appellees, Central Interstate Low-Level Compact Radioactive Waste Commission, Plaintiff, Ecology; Inc., US a California ARKANSAS, ENTERGY, INC., an Ar corporation, Intervenor- corporation; Entergy kansas Gulf Appellee, States, Inc., corporation; a Texas v. Entergy Louisiana, Inc., a Louisiana corporation; Creek Nuclear Wolf NEBRASKA; Department State of Operating Corporation, a Delaware Quality, Nebraska; Environmental corporation; Omaha Public Power Randolph Wood, individually and in District, public corporation po capacity; Jay Ringenberg, his official litical subdivision of the Ne state of individually capaci and in his official braska, Plaintiffs, ty; Department Nebraska of Health Regulation and Human Services & Li Central Interstate Low-Level Radio censure; Schor, individually David P. Compact active Waste Commis capacity; Cheryl and in his official sion, Plaintiff-Appellee, Rogers, individually her offi capacity, Defendants-Appellants, cial Ecology, Inc., US a California Doe; Doe; Companies John Jane Doe corporation, Intervenor, through individually and in their
v. capacities, official Defendants. 99-4263, NEBRASKA, Nos. 99-4265. State of Defendant- Appellant, Appeals, United States Court of Eighth Circuit. Department Quality, of Environmental *8 Nebraska; Randolph Wood, individu Submitted: Oct. 2000. ally capacity; Jay his official Filed: March Ringenberg, individually his capacity; Depart official Nebraska
ment of Health and Human Services
Regulation Licensure; & David P.
Schor, individually and in his official Cheryl
capacity; Rogers, individually capacity; her official John Doe; Doe; Companies Jane Doe through 20, individually and in their capacities,
official Defendants.