               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0249n.06

                                      Case No. 16-4040

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                              May 02, 2017
                                                                          DEBORAH S. HUNT, Clerk
INTERNATIONAL UNION OF                             )
OPERATING ENGINEERS, LOCAL 18,                     )
                                                   )
       Plaintiff-Appellee,                         )     ON APPEAL FROM THE UNITED
                                                   )     STATES DISTRICT COURT FOR
v.                                                 )     THE NORTHERN DISTRICT OF
                                                   )     OHIO
OHIO CONTRACTORS ASSOCIATION,                      )
                                                   )
       Defendant-Appellant.                        )




       BEFORE: GIBBONS, SUTTON, and COOK, Circuit Judges.

       COOK, Circuit Judge. International Union of Operating Engineers, Local 18 (“Local

18”) filed suit to compel Ohio Contractors Association (“OCA”) to arbitrate a wage-rate dispute

under a collective-bargaining agreement.       Relying on this court’s opinion in Local

18 International Union of Operating Engineers v. Ohio Contractors Association, 644 F. App’x

388 (6th Cir. 2016) (“Hydro-Excavator”)—a case involving the same parties and contract

clauses—the district court granted Local 18’s summary judgment motion and compelled

arbitration. The OCA appealed, and we AFFIRM.

                                              I.

       The Collective-Bargaining Agreement.        Local 18 represents operating engineers—

workers who handle the machinery used to construct roads and buildings—in Ohio and Northern
Case No. 16-4040, Int’l Union of Operating Eng’rs v. Ohio Contractors Ass’n


Kentucky.    The OCA is a construction-company trade group.           The parties entered into a

collective-bargaining agreement (“Agreement”) that places specified equipment within the

union’s exclusive jurisdiction; companies seeking to use such equipment must hire union

members. The contract also includes a schedule pegging the members’ pay rate to the type of

equipment operated.

        Important here, the Agreement includes two arbitration clauses. One is triggered when a

party seeks to designate a wage rate for new, unclassified equipment that is in service on a job

site.   The other, a general arbitration clause, governs disputes regarding the Agreement’s

meaning, intent, and application.

        The Dispute. Local 18 alleges that employers are using new, remote-controlled, multi-

use excavation machinery (“Brokk equipment”) on highway construction projects. The union

would have an arbitrator assign a wage classification to the machinery and thereby limit its use to

union members. The OCA, on the other hand, aims to avoid a wage classification and thereby

retain the option of using non-union labor.

        The dispute implicates the Agreement’s new-equipment arbitration provision. It reads:

“If equipment within the jurisdiction of the International Union of Operating Engineers is used

by an Employer and there is not an appropriate classification listed under the wage schedule

herein,” the parties must negotiate a pay classification, and if negotiations fail, arbitrate the

dispute. According to Local 18, this wording requires the OCA to arbitrate a wage rate because

the Brokk equipment 1) is “new,” in that crews hadn’t previously used it in highway

construction, 2) lies within the union’s “jurisdiction” because it “perform[s] the same

function”—excavation, drilling, and demolition—as other machinery listed in the agreement, and

3) is “used by an Employer.”



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Case No. 16-4040, Int’l Union of Operating Eng’rs v. Ohio Contractors Ass’n


        For its part, the OCA argues the inapplicability of the new-equipment clause because the

Brokk equipment 1) is not “new,” as it “has been in use for excavating since at least 1990 and

has been used in Ohio in the highway heavy industry since at least 2011,” 2) lies outside the

union’s jurisdiction because it differs from other machine-types enumerated in the agreement,

and 3) no “employer,” as defined in the agreement, uses the equipment. The OCA thus refused

to arbitrate, and Local 18 moved to compel arbitration. The district court compelled arbitration,

reasoning that an arbitrator must determine whether the dispute satisfied the new-equipment

clause’s newness, jurisdiction, and employer-use requirements. The OCA appealed.

                                                   II.

        We review de novo the district court’s order. Great Earth Cos. v. Simons, 288 F.3d 878,

888 (6th Cir. 2002). “[A]rbitration is a matter of contract and a party cannot be required to

submit to arbitration any dispute which he has not agreed so to submit.” United Steelworkers of

Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960). In general, “whether the

parties have submitted a particular dispute to arbitration, i.e., the ‘question of arbitrability,’ is ‘an

issue for judicial determination unless the parties clearly and unmistakably provide otherwise.’”

Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (emphasis and alterations

omitted) (quoting AT&T Tech., Inc. v. Commc’n Workers of Am., 475 U.S. 643, 649 (1986)).

        We recently adjudicated a materially identical dispute involving the same parties and

contract provisions. In Hydro-Excavator, Local 18 sought to compel the OCA to arbitrate a

wage rate for members operating hydro-excavators, an equipment type not listed in the

Agreement’s wage schedule. 644 F. App’x at 389–90. Like here, the OCA refused, arguing that

hydro-excavators were neither new nor within the union’s jurisdiction.




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Case No. 16-4040, Int’l Union of Operating Eng’rs v. Ohio Contractors Ass’n


       We held that the general arbitration clause—which directs the parties to arbitrate any

“dispute aris[ing] among any of the parties, (Employee, Employer, Association and/or Union) to

this Agreement as to its meaning, intent or the application of its terms”—required that an

arbitrator determine whether the dispute fell within the new-equipment clause’s ambit. We

explained that the general arbitration clause “applies to disputes among any of the potentially

interested parties, including disputes between the OCA and Local 18.” Id. at 395. And we

reasoned that the clause “applies to disputes ‘as to the CBA’s meaning, intent or the application

of its terms.’ No exceptions limit this broad coverage.” Id. (internal alterations omitted); see

also id. at 397 (same reasoning applied to OCA’s argument that hydro-excavators were not new).

       We apply the same reasoning here, given that the agreement encompasses disputes

between the “Association” and the “Union,” and given that the “meaning, intent or []

application” of the new-equipment clause’s newness, jurisdiction, and employer-use

requirements is at bar. As in Hydro-Excavator, an arbitrator, not the court, must determine

whether the Brokk-equipment disagreement lies within the scope of the new-equipment clause.

       The OCA’s weak counter-arguments fail to best Hydro-Excavator’s on-point analysis.

Its main contention—that Local 18 pursued arbitration only under the new-equipment clause,

rather than the general arbitration clause—misses the mark. Local 18 is pursuing arbitration

under the new-equipment clause. The general arbitration clause matters only in that it requires

the arbitrator, rather than a court, to determine whether the new-equipment clause bears on this

dispute.

       The OCA’s remaining arguments—that 1) the union failed to follow a grievance

procedure included in the general arbitration clause, 2) the contract prohibits an Arbitrator from




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Case No. 16-4040, Int’l Union of Operating Eng’rs v. Ohio Contractors Ass’n


adding a new classification rate to the agreement, and 3) specific contract provisions trump

general provisions—were addressed and rejected by Hydro-Excavator, 644 F. App’x at 396–97.

                                              III.

       For these reasons, we AFFIRM the district court’s order compelling arbitration.




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