Shank/Balfour Beatty v. International Brotherhood of Electrical Workers Local 99

United States Court of Appeals
For the First Circuit

No. 06-2480

SHANK/BALFOUR BEATTY, a Joint Venture of
M.L. Shank, Co., Inc. and Balfour Beatty Construction, Inc.,

Plaintiff, Appellant,

v.

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
LOCAL 99, a/k/a IBEW LOCAL 99,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Lynch and Howard, Circuit Judges,
and Young,* District Judge.

Mark T. Bennett, with whom Stephen J. Schultz and Marks,
Golia & Finch, LLP were on brief, for appellant.
Carly Beauvais Iafrate, with whom Gerard P. Cobleigh was on
brief, for appellee.

August 6, 2007

*
Of the District of Massachusetts, sitting by designation.
 LYNCH, Circuit Judge. This labor arbitration case raises

three issues. The main issue is whether a grievance between one

union and management over work assignment constitutes a

"jurisdictional" dispute and so is explicitly excluded from

arbitration under the terms of a collective bargaining agreement

("CBA"). On this issue, we affirm the district court's findings

that (1) the question of arbitrability was an issue for the court

to decide, not the arbitrator, and (2) the grievance was arbitrable

because it was not a jurisdictional dispute -- only one union

affirmatively laid claim to the work against management's

assertions it could assign the work as it wished. See

Shank/Balfour Beatty v. Int'l Bhd. of Elec. Workers, No. CA 06-43

ML, 2006 WL 2707325, at *3-4 (D.R.I. Sept. 19, 2006).

We also affirm enforcement of the award and the remedy

the arbitrator awarded the union, in the face of management's claim

that the remedy violates the management rights section of the CBA.

However, while we leave in place the judgment against the joint

venture which was a party to the agreement and the suit, we vacate

judgment against one entity which was not a party to the case.

I.

Shank/Balfour Beatty ("Shank/BB") and International

Brotherhood of Electrical Workers, Local 99 ("Local 99"), together

with two other unions, are parties to a collective bargaining

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agreement that provides for the arbitration of all disputes under

the agreement that are not "jurisdictional dispute[s]."

Shank/BB is a joint venture of two corporations, M.L.

Shank Co., Inc. and Balfour Beatty. In March 2002, Shank/BB and

three unions signed a "Special Tunnel Agreement." This Agreement

governed their relationship in constructing the Main Spine Tunnel

and Ancillary Facilities Project for the Narragansett Bay

Commission. The project's purpose is to dig a 16,000-foot-long

tunnel, 26 feet in diameter, under the city of Providence, Rhode

Island, to hold up to 60 million gallons of combined waste water

pending processing. The three unions involved were Local 99,

representing electricians, a union representing laborers, and a

union representing operating engineers.

Section 7 of the Agreement, titled "Jurisdiction,"

provides that "[Shank/BB] shall assign jurisdiction for the work as

follows: . . . In general, the Electricians shall have jurisdiction

for performing electrical work required for manufacturing equipment

and for construction of the work." Similarly, that section defines

the work that falls within the jurisdiction of the operating

engineers and of the laborers.

Section 7 also provides that "[t]here shall be no

strikes, work stoppages, or slow-downs, or other disruptive

activity, arising from any jurisdictional dispute." That section

then provides for the resolution of jurisdictional disputes as

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follows: "Should a jurisdictional dispute arise, the dispute shall

be settled by the Unions themselves, and [Shank/BB] shall be bound

by that settlement. . . . If the Unions cannot reach any

settlement, [Shank/BB's] original assignment shall remain in

effect."

By contrast, Section 11 of the Agreement mandates the use

of a grievance procedure which culminates in binding arbitration to

settle "[a]ny dispute arising from performance of this

[Agreement]," but this procedure specifically does not apply to "a

jurisdictional dispute."

The joint venture used a tunnel boring machine ("TBM"),

approximately 255 feet long and weighing over 690 tons, to dig the

tunnel. The TBM contained a series of electrical panels, inside of

which were push-button motor starters, breakers, and other

circuitry. On the front of the door to each of these panels was a

warning sign indicating that the circuitry within had multiple

voltage supply sources, including 480-volt sources, and stating

"Electrical Equipment, Authorized Personnel Only."

In March 2004, Local 99 called a meeting with the company

and the other unions, claiming that "electrical work" was being

done by members of the other unions. The company took the position

that the disputed work, including "pushing start-stop and breaker

reset buttons for . . . TBM operating functions," was not

"electrical work" under the Special Tunnel Agreement, and that "any

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craft could do" this work. The laborers' and operating engineers'

unions agreed with the company's assessment. That meeting was

convened under the CBA procedures for jurisdictional disputes.

In June 2004, the company implemented a third shift of

work for the project. Unlike the first two shifts, no electricians

were assigned to the third shift, although electricians were

sometimes called out to do work on that shift. Patrick Brady, a

Local 99 steward, became aware that non-electricians on the third

shift "were being instructed to go into the switch gear and throw

breakers on and off" and were otherwise performing what Brady

considered to be electrical work.

On August 24, 2004, Brady told the third-shift workers as

a group "that it was very dangerous for them to be in that

equipment" and that non-electricians "should [not] be doing the

electrical work." According to Brady, Donald Umling, a foreman for

the third shift and a member of the operating engineers' union,

responded that he was "doing the electrical work" and would

"continue doing the electrical work," particularly if there was no

electrician around.

In February 2005, while Brady and another electrician

were running a cable across the top of the TBM, one of the breakers

on the machine switched off, thereby shutting down the machine.

The two electricians started to track down the problem. According

to Brady, Umling began "randomly throwing breakers" to try to

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restart the machine. At some point, Umling threw the breaker that

had switched off, and the machine started up while the electricians

were still working on it. According to Brady, had one of the

electricians been working in the panel that "kicked in," that

person could have been electrocuted.

On February 14, 2005, Local 99 filed a grievance about

the incident with Shank/BB. Local 99 alleged:

Electrical work on the [tunnel project] has
been done, and is continuing to be done[,] by
unlicensed 3rd shift personnel other than
members of [Local 99] in violation of the
Special Tunnel Agreement and The State of
Rhode Island licensing laws, with the
knowledge and apparent approval of Michael
Shank, Managing Partner, [Shank/BB].

On February 25, the union made a corresponding demand for

arbitration of the dispute. Shank's initial position in response

to Local 99's grievance was that the dispute was not a

jurisdictional dispute under the CBA. In a pre-arbitration letter,

Shank stated: "[T]he incident you describe does not involve a

jurisdictional dispute under Article 7. Neither [the operating

engineers' union], nor [Shank/BB], contend that any craft except

IBEW Local 99 has jurisdiction for performing electrical work."

The parties appeared before an arbitrator on May 6, 2005.

At that hearing, the company took the position that the matter was

not arbitrable because it was a jurisdictional dispute. The

company further argued that the question of whether the matter was

a jurisdictional dispute was a question of substantive

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arbitrability, and thus beyond the power of the arbitrator to

decide. The arbitrator ruled against the company on both points

and later took evidence on the merits at a hearing on June 6. The

company participated in the latter hearing subject to preserving

its right to challenge both the arbitrability of the matter and the

arbitrator's authority to decide the question of arbitrability.

On October 10, 2005, the arbitrator issued an award and

written decision in favor of Local 99. The arbitrator first held

that the arbitration clause of the Special Tunnel Agreement was

broad enough to grant him the authority to decide arbitrability.

The arbitrator also suggested that Shank/BB may have forfeited its

right to a "judicial interpretation of the arbitration clause" by

not seeking a court determination "in the first instance." The

arbitrator analogized to the rule that "failure to promptly appeal

a denial of arbitration will, if prejudicial to the opposing party,

operate to forfeit the demanding party's right to arbitration."

Franceschi v. Hosp. Gen. San Carlos, Inc., 420 F.3d 1, 4 (1st Cir.

2005).

The arbitrator then found that the matter was arbitrable

because it was not a jurisdictional dispute. Citing the National

Labor Relations Board's usage of the term, the arbitrator described

a jurisdictional dispute as "one between two unions over a proper

allocation of work." He described the complaint before him as

being instead "that Mr. Umling, alone, is performing electrical

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work which he is not capable of performing safely." According to

the arbitrator, the dispute centered on Umling's actions "as a

member of management," and his membership in the operating

engineers' union was "inconsequential."

Finally, on the merits of the dispute, the arbitrator

found that "the same facts which compel a finding of arbitrability

are equally persuasive on the question raised by the grievance."

In particular, he found the claim of "unsafe work conditions" to be

"well supported by the evidence." For a remedy, the arbitrator

ordered the company to assign an electrician to the third shift

going forward and to pay back pay and benefits corresponding to

such a third-shift electrician starting from August 21, 2005.

On January 9, 2006, Shank/BB filed a motion to vacate the

arbitral award in superior court in Rhode Island. Shank/BB argued

the arbitrator erred in deciding the issue of arbitrability and

that the remedy exceeded the scope of his authority. Local 99

removed the case to the federal district court in Rhode Island and

filed a cross-motion to confirm the award. Shank/BB and Local 99

stipulated to undisputed facts and exhibits.1

1
Shank/BB is not entitled to all inferences in its favor
on either of the cross-motions, as might be the case if this were
simply an ordinary summary judgment case. The case was presented
to the court on stipulated facts, and those facts were sufficient
for the court to enter judgment. Neither party requested a jury
trial, and we understand the parties to have submitted the issue to
the district court on a case stated basis. See Garcia-Ayala v.
Lederle Parenterals, Inc., 212 F.3d 638, 643-45 (1st Cir. 2000).
Still, the outcome would be the same in any event.

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 On September 19, 2006, the district court granted Local

99's motion to confirm and simultaneously denied Shank/BB's motion

to vacate. The court found that the arbitrator had erred in

deciding the issue of arbitrability himself. The court also found

that Shank/BB had properly preserved its objections to

arbitrability. On de novo review, however, the court agreed that

the grievance was not a jurisdictional dispute and hence was

arbitrable. On the merits, the court applied a deferential review

of the arbitral award and found no basis to disturb it. The court

then entered judgment "against the Plaintiffs, Shank/Balfour Beatty

and Balfour Beatty Construction, Inc."

Following the entry of judgment, Shank/BB filed a motion

to amend the judgment "pursuant to Federal Rules of Civil Procedure

59(e) and 60(a) and 60(b)." Shank/BB argued that the district

court should have vacated the arbitrator's award to the extent it

decided the issue of arbitrability. Shank/BB also argued that

Balfour Beatty should be deleted from the judgment because it was

not a party in the case.

On October 16, 2006, the district court denied Shank/BB's

motion in its entirety. The court found no error in confirming the

arbitrator's award, as the court had come to the same conclusion as

the arbitrator on de novo review of the issue of arbitrability.

Regarding Balfour Beatty, the court held that "[i]t was Plaintiff

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itself that named Balfour Beatty Construction as a Plaintiff in

this action."

II.

Shank/BB's primary challenge is to the district court's

determination that the grievance was not a jurisdictional dispute

and was therefore arbitrable. Our resolution of this issue of

arbitrability turns only on questions of law, as to which we review

the district court's determinations de novo. See First Options of

Chi., Inc. v. Kaplan, 514 U.S. 938, 947-48 (1995); Coady v.

Ashcraft & Gerel, 223 F.3d 1, 10 (1st Cir. 2000).

A dispute over whether an arbitration provision applies

to a particular controversy raises an issue of substantive

arbitrability that is presumptively for the courts, not the

arbitrator, to decide. See Howsam v. Dean Witter Reynolds, Inc.,

537 U.S. 79, 84 (2002). The issue is one for the arbitrator only

if "the parties clearly and unmistakably [so] provide." AT&T

Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 649 (1986);

see also First Options, 514 U.S. at 944. In this circuit, the

"'clear and unmistakable evidence'" standard is a "high one."

Marie v. Allied Home Mortgage Corp., 402 F.3d 1, 14 (1st Cir. 2005)

(quoting First Options, 514 U.S. at 944).

The parties agree that jurisdictional disputes are

plainly not subject to arbitration. They disagree about what

constitutes a jurisdictional dispute. Here, that is an issue for

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the court, and the arbitrator was in error in assuming the

authority to answer that question.2

The company initially argues that the 2005 grievance is

a jurisdictional dispute because it is simply a continuation of an

early 2004 jurisdictional dispute about "electrical work" which was

resolved at a meeting of the three unions and management. This

2004 dispute utilized the Section 7 procedures for resolution of

jurisdictional disputes. The company presented letters from the

two other unions which essentially endorsed management's view that

"electrical work" did not include work which did not require the

skill of an electrician and so could be assigned to employees

represented by the other two unions.

The district court held that the company had not shown

that the current matter is sufficiently related to, or a

continuation of, the 2004 matter. We agree. At the 2004 meeting,

the operating engineers' union and the laborers union merely agreed

with management's view of what constituted electrical work. That

meeting predated Shank/BB's imposition of a third shift, and it

2
Shank/BB did not waive its right to challenge
arbitrability by participating in the hearing on the merits after
it raised the arbitrability issues before the arbitrator and the
arbitrator ruled against the company. See Tejidos de Coamo, Inc.
v. Int'l Ladies' Garment Workers' Union, 22 F.3d 8, 14 (1st Cir.
1994). Contrary to the arbitrator's suggestion, the rule in
Franceschi does not apply in this context. Shank/BB had no
obligation to seek a stay of arbitration in court, and indeed, such
a stay cannot be granted absent a showing of "substantial and
irreparable injury." Id. at 13-15.

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also predated the incident with Umling. No similar meeting was

held in 2005.

The real starting question is how to define the term

"jurisdictional dispute." We reject Shank/BB's contention that the

Agreement itself provides the express definition of the term

"jurisdictional dispute." No such definition appears in the

Agreement. Shank/BB argues that "jurisdictional dispute" must

refer to any dispute over the company's assignment of work. This

is not the only definition consistent with the Agreement, nor is it

the most plausible one, as we explain later.

In the absence of an unambiguous definition of

"jurisdictional dispute" in the Agreement, we start by looking to

the NLRB's usage of that term, as that represents the custom and

practice within the trade.3 See, e.g., Int'l Union of Operating

3
Section 8(b)(4)(D) of the National Labor Relations Act,
29 U.S.C. § 158(b)(4)(D), makes it an unfair labor practice for a
union to strike with the object of

forcing or requiring any employer to assign
particular work to employees in a particular
labor organization or in a particular trade,
craft, or class rather than to employees in
another labor organization or in another
trade, craft, or class, unless such employer
is failing to conform to an order or
certification of the [NLRB] determining the
bargaining representative for employees
performing such work.

Section 10(k), 29 U.S.C. § 160(k), provides that "[w]henever it is
charged that any person has engaged in an unfair labor practice
within the meaning of paragraph (4)(D) of section 8(b), the [NLRB]
is empowered and directed to hear and determine the dispute out of

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Eng'rs, Local 103 v. Ind. Constr. Corp., 910 F.2d 450, 453 (7th

Cir. 1990). "Custom and usage within an affected industry or

workplace can be important aids to the construction of a contract."

Quinn v. City of Boston, 325 F.3d 18, 31 (1st Cir. 2003); see also

Drans v. Providence Coll., 383 A.2d 1033, 1038 (R.I. 1978). In the

labor field, the phrase "jurisdictional dispute" is a "term of art"

that generally refers to the NLRB's usage. Huber, Hunt & Nichols,

Inc. v. United Ass'n of Journeymen & Apprentices of the Plumbing &

Pipefitting Indus., Local 38, 282 F.3d 746, 748 n.2 (9th Cir.

2002).

In the context of an NLRB proceeding, a classic

jurisdictional dispute is "a dispute between two or more groups of

employees over which is entitled to do certain work for an

employer." NLRB v. Radio & Television Broad. Eng'rs Union, Local

1212 (CBS), 364 U.S. 573, 579 (1961). The employer is ordinarily

caught in the middle between the rival union groups of employees.

See id. ("[I]n most instances, [the dispute] is of so little

interest to the employer that he seems perfectly willing to assign

work to either [group of employees] if the other will just let him

alone."). One common scenario involves collective bargaining

agreements (like this one) which promise certain types of work to

which such unfair labor practice shall have arisen." The dispute
in a proceeding under section 10(k) is referred to as a
"jurisdictional dispute." NLRB v. Radio & Television Broad. Eng'rs
Union, Local 1212, 364 U.S. 573, 579 (1961).

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certain unions. At times, the dispute comes from hybrid work that

appears to fall within more than one jurisdictional grant. See

J.F. White Contracting Co. v. Local 103 Int'l Bhd. of Elec.

Workers, 890 F.2d 528, 528-29 (1st Cir. 1989). The employer's main

interest in such jurisdictional disputes is to avoid being subject

to inconsistent obligations. See id. at 530.

For a jurisdictional dispute to exist, competing groups

(usually unions) must make claims to do the work at issue. See

NLRB v. Plasterers' Local Union No. 79, 404 U.S. 116, 134-35 & n.30

(1971). If only a single union claims the work as its own, then

the dispute is ultimately between the union and management, not

among rival groups of employees. Id. at 134 n.30 (citing Carpet,

Linoleum & Soft Tile Layers, Local 1905, 143 N.L.R.B. 251, 255-56

(1963)). Furthermore, the existence of a jurisdictional dispute

may be eliminated if all of the unions but the one claimant union

clearly and unequivocally disclaim all interest in the work and

compensation. Local 150, Int'l Union of Operating Eng'rs, 308

N.L.R.B. 1005, 1006 (1992).

This case is at neither of these clearly established end

posts. Only one union, Local 99, is affirmatively claiming the

work as its own. The other two unions did not make an affirmative

claim. But at the same time, they did not affirmatively relinquish

any claim to the work that management might send their way.

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 The company's position at the 2004 meeting was only that

the work was "not electrical work" and hence that "any craft could

do it." The company never stated that the work affirmatively was

operating engineers' work or laborers' work, nor is there any

indication that these unions took such positions.4 Indeed, the

company's initial response was that this issue did not involve a

jurisdictional dispute because neither of the other unions "contend

that any craft except IBEW has jurisdiction for performing

electrical work." Similarly, Umling never even arguably claimed

4
Shank/BB nonetheless suggests that an affirmative claim
for work need not be explicit and that the actual performance of
the work may be sufficient. Performance of the work might in some
instances be "evidence" of a claim on the work that creates a
jurisdictional dispute. See, e.g., Int'l Longshoremen's &
Warehousemen's Union, Local 62-B v. NLRB (Alaska Timber), 781 F.2d
919, 924-26 (D.C. Cir. 1986); Int'l Longshoremen's & Warehousemen's
Union, Local 14 (Sierra Pacific), 314 N.L.R.B. 834, 836 (1994),
aff'd 85 F.3d 646, 651-53 (D.C. Cir. 1996). On the facts of this
case, however, any such evidence is significantly in tension with
the other evidence, including the evidence that no other union ever
claimed an affirmative entitlement to the disputed work. Cf.
Alaska Timber, 781 F.2d at 925 (explaining that the mere fact that
one group is performing the work, coupled with the fact that
another group is demanding the work, is insufficient to create a
jurisdictional dispute). Moreover, the NLRB decision Shank/BB
relies on was one in which non-unionized workers "claimed" the work
through performance. See Sierra Pacific, 314 N.L.R.B. at 837; see
also Int'l Union of Operating Eng'rs, Local 926, 254 N.L.R.B. 994,
994, 996 (1981) (non-unionized employees "claimed" the work through
performance); Int'l Longshoremen's & Warehousemen's Union, Local
No. 8, 231 N.L.R.B. 179, 179-80 (1977) (same); Sheet Metal Workers
Local Union No. 54, 203 N.L.R.B. 74, 76 (1973) (same). Yet when
unionized workers merely perform the work, the lack of an
affirmative claim is more probative, as such workers have more
established channels to voice affirmatively such claims if they are
so inclined. Here, only Local 99 was making an affirmative claim
to the work.

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the work on behalf of the operating engineers. Rather, he insisted

only that if no electrician was around, then he could do the work

himself.5

The Agreement itself makes it implausible that the

parties intended this to be a "jurisdictional dispute." That

follows from the procedure set up to resolve jurisdictional

disputes. The Agreement provides that jurisdictional disputes

"shall be settled by the Unions themselves," and that in the

absence of such a settlement, Shank/BB's "original assignment shall

remain in effect." Thus, the company effectively acts as the last

word on any jurisdictional disputes among the competing unions if

the unions cannot resolve their claims amongst themselves. This

makes sense in a traditional dispute in which the company is caught

between competing unions' claims and the company itself is largely

a neutral bystander. But it hardly makes sense if the dispute is

actually one by a single union against the company.

Here, the dispute is best understood as essentially one

by a single union against the company. To the extent the laborers'

and the engineers' unions were taking any position at all, that

position was simply that the company should have a free hand in

assigning the disputed work to whomever it wishes. The contrary

5
We do not rely on any reasoning based on Umling's
arguable status as a supervisor, a status that one might view as
overriding his status as a member of the operating engineers
covered by the contract.

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position of Local 99 was that the company should not have a free

hand. Thus unlike a traditional jurisdictional dispute in which

rival unions are advancing their own positions, here Local 99's

"rivals" were advancing the company's position (albeit a position

that might have benefits for these unions). Such a dispute was not

meant to be left to the company as ultimate arbiter, and thus such

a dispute is not "jurisdictional" within the meaning of the

Agreement.6

III.

Our review of the resulting remedial award is extremely

deferential.

Shank/BB does not really challenge the finding by the

arbitrator on the merits that the work was electrical work. "[A]s

long as the arbitrator is even arguably construing or applying the

contract and acting within the scope of his authority," we must

uphold the award, even if we are "convinced he committed serious

error." United Paperworkers Int'l Union v. Misco, Inc., 484 U.S.

6
Some cases have concluded that a dispute is not
"jurisdictional" when the dispute is of management's "own making."
Alaska Timber, 781 F.2d at 924. We do not adopt such a
formulation. Many true jurisdictional disputes among unions will
initially be of management's making. This commonly used language
may, however, be no more than a shorthand way of saying the dispute
is actually between one union and management and not among rival
unions. Cf. Recon Refractory & Constr. Inc. v. NLRB, 424 F.3d 980,
987-90 & n.12 (9th Cir. 2005). Because we find no jurisdictional
dispute, on this record, within the meaning of the contract, we
need not address further any exception for disputes of the
company's "own making."

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29, 38 (1987). Under this standard, it is clear that the

arbitrator's award must be upheld.7 The company's attack goes

primarily to the remedial aspect of the award.

We reject the company's initial argument that the

arbitrator's error in claiming authority to decide arbitrability

somehow infected his decision on the award. The argument is that

since the arbitrator exceeded his authority in addressing the

arbitrability issue, everything he did must be vacated. That would

lead to the senseless and inefficient result of sending the matter

back to the arbitrator to redo the arbitration he had just done

properly, even if he was wrong about who should decide the question

of arbitrability. It does not matter that the arbitrator, in his

decision on the merits, referred to his reasoning on the question

of arbitrability. See Cytyc Corp. v. DEKA Prods. Ltd. P'ship, 439

F.3d 27, 34 (1st Cir. 2006) ("Arbitrators are not required to

provide particularized reasons for their decisions."); Boston Med.

Ctr. v. SEIU, Local 285, 260 F.3d 16, 21 n.4 (1st Cir. 2001) ("We

have upheld arbitrator[s'] awards even where we expressed doubt

about the arbitrator's rationale.").

7
There was ample evidence before the arbitrator that
Umling and others under him had been performing work that could be
construed as "electrical work" under the Agreement. In particular,
the arbitrator reasonably found that working in the panels marked
"Electrical Equipment" could be "electrical work," particularly
when the failure to limit this work to electricians had led to
"unsafe work conditions." Moreover, the arbitrator was entitled to
credit the testimony that Umling himself had stated that he was
performing "electrical work."

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 Shank/BB attacks the arbitrator's choice of remedy as

inconsistent with the section of the Agreement that reserves to

management the right to "assign[] the numbers of employees it

considers necessary for any operation or crew." Our review of an

arbitrator's chosen remedy is also highly deferential, and "where

it is contemplated that the arbitrator will determine remedies for

contract violations that he finds, courts have no authority to

disagree with his honest judgment in that respect." Misco, 484

U.S. at 38.

Here, the arbitrator was faced with two provisions in the

Agreement that were potentially at odds with each other. One

reserved electrical work to electricians; the other reserved to

management the determination of the minimum number of employees

required for the work. It was the arbitrator's role to decide how

to resolve these competing provisions. The apparent rationale for

the arbitrator's choice of remedies is that, under the

circumstances, the minimum number of electricians needed on the

third shift was one, and that the third shift should have had an

electrician assigned to it from the start. This led to the

generous monetary award of one electrician's pay, for the past, to

the Union, as well as an order to assign an electrician

prospectively. We have no basis to disturb such an interpretation

of the Agreement. See Airline Pilots Ass'n, Int'l v. Pan Am.

Airways Corp., 405 F.3d 25, 31-32 (1st Cir. 2005).

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 IV.

Shank/BB, the joint venture, correctly argues that the

district court erred in entering judgment against Balfour Beatty

and in denying Shank/BB's post-trial motion to vacate that

judgment. Rule 60(b)(4) allows a district court to grant relief

from a judgment that is "void." Although denial of a Rule 60(b)

motion is normally reviewed for abuse of discretion, a district

court has no discretion when deciding a motion brought under Rule

60(b)(4) "because a judgment is either void or it is not." See

Fafel v. DiPaola, 399 F.3d 403, 409-10 (1st Cir. 2005) (quoting

Honneus v. Donovan, 691 F.2d 1, 2 (1st Cir. 1982)) (internal

quotation marks omitted). Accordingly, our review is de novo. Id.

Balfour Beatty appeared in the caption of the original

state court complaint only as a member of the Shank/BB joint

venture, not as a party in its own right. This caption was

maintained when the case was removed to federal district court, but

the typeface on the notice of removal may have suggested that

Balfour Beatty was a separate party, and some of Local 99's filings

listed Balfour Beatty as a separate party. The company's filings

contained captions that were consistent with its original one-

plaintiff complaint, and Balfour Beatty never actually appeared in

the case as a party.

A judgment cannot be entered against one who is not a

party to the case. See Metro. Prop. & Cas. Ins. Co. v. Shan Trac,

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Inc., 324 F.3d 20, 25 (1st Cir. 2003). Moreover, joint ventures

are treated as partnerships under Rhode Island law, see Scully

Signal Co. v. Joyal, 881 F. Supp. 727, 740 (D.R.I. 1995), and

"Rhode Island's partnership law [does not] authorize[] the entry of

a personal judgment against an unnamed and unserved partner in an

action against a partnership," Nisenzon v. Sadowski, 689 A.2d 1037,

1049 (R.I. 1997). Thus, Balfour Beatty did not become a party

solely by virtue of being a member of the Shank/BB joint venture.8

When judgment is entered against an entity never properly

served as a party to the case, the judgment is "void" within the

meaning of Rule 60(b)(4). See M & K Welding, Inc. v. Leasing

Partners, LLC, 386 F.3d 361, 364-65 (1st Cir. 2004). We see no

reason why the result should differ when judgment enters against an

entity that was never even a party in the first place.

V.

The judgment of the district court against Balfour Beatty

is vacated and the case is remanded with instructions that Balfour

8
The complaint identifies both individual partners as
California corporations, and the record is silent as to how, when,
or where the joint venture was formed. Shank/BB's brief
nonetheless assumes that Rhode Island law governs, and Local 99
appears not to dispute this. In any event, California law is not
appreciably different. See Weiner v. Fleischman, 816 P.2d 892, 895
(Cal. 1991) (explaining that partnerships and joint ventures are
"virtually the same" for legal purposes); Cal. Corp. Code
§ 16307(c) ("A judgment against a partnership is not by itself a
judgment against a partner.").

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Beatty be deleted from the judgment. In all other respects, the

judgment is affirmed. Costs are awarded to Local 99.

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