09-5158-cv
Laborers Int’l U nion of N orth A merica, Local 210 v. M cKinney D rilling C o.


                                     UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                                        SUMMARY ORDER

RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUMM ARY ORDER”). A PARTY CITING TO A SUMM ARY ORDER M UST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 9 th day of August, two thousand ten.

PRESENT:         ROBERT D. SACK,
                 REENA RAGGI,
                 GERARD E. LYNCH,
                         Circuit Judges.
---------------------------------------------------------
LABORERS INTERNATIONAL UNION OF
NORTH AMERICA, LOCAL 210,
                         Plaintiff-Appellant,

                       v.                                                                     No. 09-5158-cv

MCKINNEY DRILLING COMPANY,
                         Defendant-Appellee.
---------------------------------------------------------
APPEARING FOR PLAINTIFF-APPELLANT:                                                JOHN M. LICHTENTHAL, Lipsitz
                                                                                  Green Scime Cambria LLP,
                                                                                  Buffalo, New York.

APPEARING FOR DEFENDANT-APPELLEE:                                                 MARK MOLDENHAUER (Robert
                                                                                  A. Doren, on the brief), Bond,
                                                                                  Schoeneck & King, PLLC, Buffalo,
                                                                                  New York.
       Appeal from a judgment of the United States District Court for the Western District

of New York (Richard J. Arcara, Judge).

       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the November 13, 2009 judgment of the district court is AFFIRMED and

defendant’s motion for sanctions is DENIED.

       Plaintiff Laborers International Union of North America, Local 210 (“Local 210”)

appeals from an award of summary judgment in favor of defendant McKinney Drilling

Company (“McKinney”) in this action under section 301 of the Taft-Hartley Act, 29 U.S.C.

§ 185, (1) to enforce a grievance against McKinney for failing to make certain payments to

Local 210 for work allegedly covered by a collective bargaining agreement (“CBA”)

between the parties but performed by members of another union, or, alternatively, (2) for a

court determination that McKinney’s conduct breached the CBA. In defending the award,

McKinney moves for sanctions pursuant to Fed. R. App. P. 38 and 28 U.S.C. § 1927. We

review an award of summary judgment de novo, “resolving all ambiguities and drawing all

permissible factual inferences in favor of the party against whom summary judgment is

sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (internal quotation marks

omitted). We will award sanctions for pursuit of an appeal only if the appellant acted in bad

faith vexatiously to multiply proceedings, see In re 60 E. 80th St. Equities, Inc., 218 F.3d

109, 115 (2d Cir. 2000) (discussing § 1927 standard), or pursued a patently frivolous appeal,

see In re Drexel Burnham Lambert Group Inc., 995 F.2d 1138, 1147 (2d Cir. 1993)

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(discussing Rule 38 standard). We assume the parties’ familiarity with the facts and

procedural history of this and related cases between them, see, e.g., Construction Indus.

Emp’rs Ass’n v. Local Union No. 210, Laborers Int’l Union of N. Am. (“McKinney I”), 580

F.3d 89 (2d Cir. 2009), which we reference only as necessary to explain our decision to

affirm.

          1.    Claim for Enforcement

          Local 210 submits that the district court erred in granting McKinney summary

judgment on its enforcement claim on the ground that the parties’ dispute is jurisdictional

and, therefore, not subject to the grievance procedures established by the CBA. Local 210

does not – and cannot – contend that the parties’ CBA, in all its iterations, does not expressly

exclude jurisdictional disputes from the grievance process. Rather, it contends that the

parties’ dispute is not jurisdictional because Local 210 does not seek to have work taken from

another union; it seeks only “to enforce those provisions of its CBA with McKinney relating

to the preservation of the Union’s work and the enforcement of its representational rights vis-

à-vis workers engaged in caisson work, whoever they may be.” Appellant’s Br. at 15. To

state the claim is to defeat it. A union’s action to enforce the terms of its CBA with respect

to work performed by a non-union member is necessarily a claim for the work. See Laborers

Int’l Union of N. Am., Local 113 v. Super Excavators, Inc., 338 N.L.R.B. 472, 474-75

(2002); see also Local 30, United Slate, Tile & Composition Roofers Ass’n, v. NLRB, 1 F.3d

1419, 1427 (3d Cir. 1993) (“The distinction . . . between seeking the work and seeking

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payment for the work is ephemeral.”). And when the work at issue is performed by members

of a different union, the enforcement claim presents a jurisdictional dispute. See Laborers’

Int’l Union of N. Am., Local 931 v. Carl Bolander & Sons Co., 305 N.L.R.B. 490, 491

(1991). Because we agree with the district court that the decision Local 210 seeks to enforce

concerns a jurisdictional dispute expressly excluded from grievance by the parties’ CBA, we

conclude that there was no basis for enforcement, and that summary judgment on this claim

was correctly entered in favor of McKinney.

       2.     Breach of Collective Bargaining Agreement

       Local 210 asserts that, even if its grievance decision is not enforceable, the district

court erred in dismissing its breach of contract claim because the court could have resolved

the jurisdictional dispute underlying the claim. Assuming such authority, which neither party

disputes, we are not persuaded because the record fails to reveal a triable issue of fact on the

jurisdictional point. McKinney presented evidence that the CBA did not encompass the

relevant caisson work, and Local 210 failed to adduce any evidence that, even when viewed

in the light most favorable to the union, “would be sufficient to support a jury verdict in its

favor.” Burt Rigid Box, Inc. v. Travelers Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).

The CBA language cited by Local 210 does not, by its terms, encompass caisson work, and

McKinney presented evidence that such language generally is understood not to encompass

that work. See generally 20 Williston on Contracts § 55:20 (4th ed. 2004) (“[A] court should

seek to ascertain the meaning of a collective bargaining agreement not only by viewing the

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language used by the parties to the collective bargaining agreement, but also by considering

the parties’ past interpretations and practices.”). Notably, Local 210 has entered other

bargaining agreements whose terms explicitly reference such caisson work. Meanwhile,

Local 210 has never performed caisson work under the CBA here at issue. To the extent

Local 210 attempts to create an issue of fact by challenging this second point, it offers no

persuasive reason why it should not be estopped from doing so by our prior decision in

McKinney I, holding that Local 210 had never performed caisson work under that CBA. See

Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 918 (2d Cir. 2010) (noting that

collateral estoppel “bars a plaintiff from relitigating an issue that has already been fully and

fairly litigated in a prior proceeding” (emphasis omitted)). In any event, the evidence of past

caisson work is insufficient to raise a triable question of fact because it is based on a

nineteen-year-old observation by an individual who cannot state that the work was actually

performed under a collective bargaining agreement. Accordingly, because Local 210 has

failed to raise a triable issue of fact respecting its entitlement to caisson work, McKinney was

entitled to summary judgment on the claim of breach.




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       3.     Sanctions

       Finally, we deny McKinney’s motion for an award of appellate sanctions because

Local 210’s arguments, while unsuccessful, are not so frivolous or indicative of bad faith as

to warrant sanctions. In re Drexel Burnham Lambert Group Inc., 995 F.2d at 1147; see also

In re 60 E. 80th St. Equities, Inc., 218 F.3d at 115. We note, however, that the question of

sanctions is a close one and that Local 210’s continued persistence in litigating its dispute

with McKinney about the award of caisson work to another union could justify the

imposition of future sanctions.

       We have considered the parties’ other arguments and find them to be without merit.

Accordingly, the November 13, 2009 judgment of the district court is AFFIRMED, and

plaintiff’s motion for sanctions is DENIED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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