International Union of Bricklayers and Allied Craftworkers, Local 5 v. Banta Tile & Marble Co., Inc.

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4135
INTERNATIONAL UNION OF BRICKLAYERS
AND ALLIED CRAFTWORKERS, LOCAL 5,
Appellee
v.
BANTA TILE & MARBLE CO., INC.,
Appellant
Appeal from the Order of the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 07-cv-01245)
District Judge: Honorable John E. Jones, III
Argued on July 15, 2009
____________
Before: RENDELL, FUENTES, and ROTH, Circuit Judges.
(Filed: September 14, 2009 )
Thomas R. Davies (Argued)
Harmon & Davies
2306 Columbia Avenue
Lancaster, PA 17603
Attorney for Appellant
Charles W. Johnston (Argued)
150 Corporate Center Drive
Suite 203

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The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction1
pursuant to 28 U.S.C. § 1291.
2
P.O. Box 98
Camp Hill, PA 17011
Attorney for Appellee
OPINION
FUENTES, Circuit Judge:
Banta Tile and Marble Company, Inc. (“Banta”) appeals from the District Court’s
grant of summary judgment in favor of International Union of Bricklayers and Allied
Craftworkers, Local 5 (“Local 5”). Banta alleges that the District Court erred when it
held that Banta was required to arbitrate a grievance filed by Local 5 even though Banta
was no longer a party to any agreement with Local 5. For the reasons stated below, we
will affirm.1
I. Facts and Procedural History
Because we write exclusively for the parties, we only discuss the facts and
proceedings to the extent necessary for resolution of this case.
Banta is a tile installation corporation in Lancaster, Pennsylvania, where local tile
workers are represented by Local 5. Banta and Local 5 previously had been parties to a
succession of collective bargaining agreements, but Banta terminated its contract with
Local 5 in April 2006. Local 5 remained a party to a similar contract with other

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employers in the area.
Banta was also a signatory to two collective bargaining agreements between
International Union of Bricklayers and Allied Craftworkers, Local Union No. 1 (“Local
1”), a Philadelphia-area group, and the Associated Tile Contractors of Philadelphia and
Suburbs (“the Association”). Banta was not a member of the Association, but signed the
agreements as an independent signatory employer in 1997. Both of these agreements
contained the following “me too” and “evergreen” language:
This Agreement shall remain in full force and effect through April 30, 1998
and shall continue thereafter unless there has been given not less than 90
days written notice . . . , by either party hereto, of the desire to modify and
amend this Agreement through negotiations. In the absence of such notice,
the employer and the union agree to be bound by the area-wide negotiated
contracts with the [Association] and extending this Agreement for the life of
the newly-negotiated contract.
(emphasis added). At no time did either Banta or Local 1 express a desire to modify or
amend the agreements.
In 2004, the Association and Local 1 negotiated a successor agreement. The
successor agreement contained a “traveling contractors” clause, which required
employers to comply with the terms of any other Bricklayers Local Union standard
agreement when employers sent union members outside the Philadelphia area to work.
Local 5 is a party to one standard collective bargaining agreement with all employers
within its jurisdiction. This standard agreement is in effect from May 2006 until April
2010. Banta was not a signatory to the 2004 agreement.

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Banta raised several affirmative defenses in the District Court, but the District Court2
correctly found that because Banta failed to move to vacate or modify the arbitration
award within thirty days, the statute of limitations period had run.
We exercise plenary review over a district court’s summary judgment ruling. Twp. of3
Piscataway v. Duke Energy, 488 F.3d 203, 208 (3d Cir. 2007).
4
In May 2006, Local 5 discovered that Banta had employees in the Lancaster area,
but was not in compliance with the terms of the standard collective bargaining agreement.
In August 2006, Local 5 filed a grievance asserting that Banta had violated the “traveling
contractors” provision, contained within the Local 1 agreement. The matter was submitted
to arbitration, and the arbitrator ruled in Local 5's favor. Local 5 then filed a complaint in
the District Court, seeking to enforce the arbitration award. Both Local 5 and Banta filed
motions for summary judgment.
The only issue in the District Court, and on appeal, is Banta’s argument that the
case was improperly submitted to arbitration. Specifically, Banta argued that Local 52
brought the case before the arbitrator by invoking the terms of Local 5’s standard
collective bargaining agreement. Banta argued that it was not a signatory to that contract
because it terminated its agreement with Local 5 in 2006.
The District Court concluded that because the agreement between Banta and Local
1 intended to confer benefits on third parties such as Local 5 (via the “traveling
contractors” clause), Local 5 could invoke the arbitration clause. As a result, the District
Court granted summary judgment to Local 5. Banta appeals, arguing that the District
Court erred when it held that this dispute was arbitrable.3

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II. Discussion
“[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 v.
Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960). When determining whether a
dispute is arbitrable, a court must analyze two issues: (1) whether the parties have entered
into a written agreement to arbitrate, and (2) whether the dispute in question falls within
the scope of that agreement. Nationwide Mut. Ins. Co. v. Cosenza, 258 F.3d 197, 202 (3d
Cir. 2001). When confronting questions of arbitrability, a court should “independently
review the agreement” and “should not give deference to the arbitrator’s decision . . . , but
should exercise plenary review to determine whether the matter is arbitrable.” McKinstry
Co. v. Sheet Metal Workers’ Int’l Ass’n, Local Union No. 16, 859 F.2d 1382, 1385 (9th
Cir. 1988) (citing AT & T, Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649
(1986)). “However, where one of the parties seeking arbitration is not a signatory to the
underlying agreement, a further step is added to the inquiry. Before the presumption of
arbitrability can apply, the non-signatory party must show that the signatories intended it
to derive benefits from the agreement.” Id. at 1384. “Where such intent can be shown,
and where the arbitration clause is susceptible to the interpretation that the non-signatory
has the right to enforce these benefits, then arbitration is proper.” Id. at 1384-85.
1. “Me Too” Clauses
“Me too” clauses of the type in the agreement between Banta and Local 1 are

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common and generally enforceable. The Ninth Circuit has defined “me too” clauses as
allow[ing] independent, usually smaller, employers to obtain all the benefits
of the master [collective bargaining agreement] that is negotiated by the
principal employers in the industry without having to participate in the
industry negotiations, or to engage in separate negotiations, every few
years. Thus, the independent employer is assured that (1) it will not be
subject to a contract containing more onerous conditions than are applicable
to its competitors, (2) it will obtain whatever protections or advantages the
industry collective bargaining agreement provides other employers, (3) it
will be saved the cost of expensive negotiations, and most pertinent here,
(4) it will be covered by an agreement whenever the rest of the industry is
covered and not subject to an agreement whenever the rest of the industry is
not.
Arizona Laborers, Teamsters, and Cement Masons Local 395 v. Conquer Cartage Co.,
753 F.2d 1512, 1518-19 (9th Cir. 1985).
In Berwind Corp. v. Comm’r of Soc. Sec., 307 F.3d 222 (3d Cir. 2002), this Court
held that “a ‘me too’ agreement is an agreement whereby an employer who is not a
member of [a trade association] agrees with a union to be bound by the terms of a
[national wage agreement].” Id. at 237 n.18. Further, the Court noted that “a ‘me too’
agreement has terms identical to the terms of [a national wage agreement] and there is no
distinction regarding an employer’s contractual rights and obligations. Thus, the
distinction between a . . . signatory [to the national wage agreement] and a ‘me too’
signatory is without a difference.” Id.; see also Shenango, Inc. v. Apfel, 307 F.3d 174,
188 n.9 (3d Cir. 2002) (holding same). This interpretation of “me too” clauses is in line
with decisions from other courts of appeal. See, e.g., N.L.R.B. v. Boston Dist. Council of
Carpenters, 80 F.3d 662, 664 (1st Cir. 1996) (A “[u]nion exercises the collective

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bargaining authority of its constituent locals in negotiating a . . . Master Agreement
(“MA”) with several multi-employer associations. Once a MA has been negotiated with
these . . . associations, the Union customarily offers the same MA to other area
employers, including those which neither belong to a[n] . . . association nor otherwise
participate in negotiations. These nonparticipating employers may bind themselves to the
negotiated MA simply by executing what are known as “me too” acceptances . . . .”);
Davon, Inc. v. Shalala, 75 F.3d 1114, 1117 (7th Cir. 1996) (interpreting “me too” clause
in the same manner).
Banta argues that the “me too” provisions of the contracts it signed in 1997 were
only meant to extend the existing terms of the 1997 Agreements for the duration of any
subsequently negotiated area wide contract. In other words, Banta would have us read the
provisions as nothing more than “evergreen” clauses by which the existing contract could
be renewed indefinitely. However, Banta ignores the crucial “me too” language by which
it “agree[d] to be bound by the area wide negotiated contracts with the” Association.
Under any fair reading of this language, Banta agreed to be bound by the terms of
subsequent area wide contracts between Local 1 and the Association, not just the duration
of such contracts.
Here, Banta is a smaller employer which benefitted from obtaining all the benefits
attendant to the master collective bargaining agreement via the “me too” clause without
having to itself engage in collective bargaining. The “me too” clause protected Banta by

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ensuring that its contracts were in line with, and were not more onerous, than its
competitors’ contracts. Although Banta signed the agreements with the “me too”
provision, presumably to avail itself of the benefits of the clause, it now wants to distance
itself from the clause by arguing that it never agreed to incorporate the “traveling
contractors” clause, discussed below.
The District Court was correct when it held that, by signing the collective
bargaining agreement that contained the “me too” clause with Local 1 in 1997, and never
modifying, amending, or terminating that agreement, Banta agreed, under widely
accepted law governing collective bargaining agreements, to be bound by any successor
master agreement negotiated by the Association and Local 1. Given the unambiguous
language in the 1997 contracts, and settled law recognizing the enforceability of “me too”
clauses, we cannot accept Banta’s argument that it meant to only be bound in perpetuity
to the terms of the 1997 collective bargaining agreements as they existed at that time.
2. “Traveling Contractors” Clauses
“Traveling contractors” clauses, such as the one contained in the agreement
between the Association and Local 1 in this case, are common in the construction
industry. See, e.g., McKinstry, 859 F.2d at 1389 (“We note that the position asserted by
Local 16 in the underlying dispute is not alien or new to construction industry contracts.
Collective bargaining patterns in the construction industry typically share the same overall
pattern as that used to arrive at the agreement in this case: a standard form agreement or

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master agreement is reached by bargaining representatives at the national level, with
modifications-typically having to do with wage schedules-made between local unions and
regional contractors’ associations.”). Although there is no case law in this Circuit to
guide the analysis regarding the “traveling contractors” clause, there is persuasive case
law from other Circuits that supports the District Court’s decision to allow Local 5 to
arbitrate their grievance against Banta.
In McKinstry, the Ninth Circuit held that a “traveling contractors” clause, similar
to the one at issue in this case,“was clearly intended to extend certain direct and indirect
benefits to workers other than those represented by [the local union which was the
signatory].” Id. at 1386. Accordingly, the Ninth Circuit held that a sister, non-signatory
union, such as Local 5 in this case, could bring a grievance against the employer that had
operated outside the area governed by the agreement. Id. Likewise, the Eighth Circuit
held that identical language in an agreement extended benefits to workers other than those
represented by the signatory local union. Local Union No. 36 Sheet Metal Workers’ Int’l
Assoc. v. Atlas Air Conditioning, 926 F.2d 770, 772-73 (8th Cir. 1991). See also Flynn
v. Corp., 481 F.3d 824, 830-31 (D.C. Cir. 2007) (holding that, in light of the “broad
understanding” of traveling contractors clauses, the clause in the contract at issue bound
the defendant company to the collective bargaining agreement in force at a foreign jobsite
even though that company was not a signatory to the foreign agreement).
The “traveling contractors” language at issue in this case is as follows:

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When the employer has any work of the type covered by this
Agreement to be performed outside of the area covered by the Agreement
and within the area covered by a standard Collective Bargaining Agreement
of another affiliate of the International Union of Bricklayers and Allied
Craftworkers, the Employer agrees to abide by the full terms and conditions
of the standard Agreement in effect on the job site area with respect to all
employees, wherever hired, who perform such work, except as provided in
the next sentence of the paragraph.
Employees, covered by this Agreement who are sent to projects
outside of the area covered by this Agreement shall be paid at least the
established minimum wage scale required under this Agreement but in no
less than the established minimum wage scale of the local Agreement
covering the territory in which such work is being performed plus all
contributions specified in the job site local Agreement.
As noted above, the relevant inquiry when deciding if a non-signatory to this
agreement can invoke the arbitration clause is whether the non-signatory party, here Local
5, can show that the signatories intended it to derive benefits from the agreement. Local 5
has met this burden by showing that the agreement was clearly intended to convey
benefits to unions besides those who were represented by the union which signed the
agreement.
Banta’s main argument is that while the “traveling contractors” clause may, in
general, be meant to benefit non-signatories like Local 5, Banta itself never intended to
acquiesce to that clause in the Agreement between the Association and Local 1, therefore
it could not have intended to benefit non-signatories like Local 5. This argument does not
gel with the law governing “me too” and “evergreen” clauses in collective bargaining
contracts. Banta agreed to be bound to the collective bargaining agreements negotiated

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by Local 1 and the Association, in addition to future amendments of that Agreement via
the “me too” clause, unless and until Banta said otherwise. Banta never said otherwise,
including after Local 1 and the Association added the “traveling contractors” clause in a
successor agreement. Therefore, Banta cannot now say that it never meant for the
“traveling contractors” clause, later added to the Agreement, to benefit others. By signing
and never amending the “me too” clause, Banta is bound.
III. Conclusion
For the foregoing reasons, we will affirm the District Court’s grant of summary
judgment in favor of Local 5.

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