Central Valley Typographical Union No. 46 v. McClatchy Newspapers

• Decision Date: 23 May 1985
• Docket Number: 84-2120,Nos. 84-1893,s. 84-1893
• Citation: 762 F.2d 741
• Parties: 119 L.R.R.M. (BNA) 2966, 103 Lab.Cas. P 11,524 CENTRAL VALLEY TYPOGRAPHICAL UNION, NO. 46 and International Typographical Union, Plaintiffs-Appellees, v. McCLATCHY NEWSPAPERS, Publisher of the Sacramento Bee, a California Corporation, Defendant-Appellant. McCLATCHY NEWSPAPERS, Plaintiff-Appellant, v. CENTRAL VALLEY TYPOGRAPHICAL UNION NO. 46, International Typographical Union, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 741

762 F.2d 741

119 L.R.R.M. (BNA) 2966, 103 Lab.Cas. P 11,524

CENTRAL VALLEY TYPOGRAPHICAL UNION, NO. 46 and International

Typographical Union, Plaintiffs-Appellees, v. McCLATCHY NEWSPAPERS, Publisher of the Sacramento Bee, a

California Corporation, Defendant-Appellant.

McCLATCHY NEWSPAPERS, Plaintiff-Appellant, v. CENTRAL VALLEY TYPOGRAPHICAL UNION NO. 46, International

Typographical Union, Defendants-Appellees.

Nos. 84-1893, 84-2120.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 15, 1985.

Decided May 23, 1985.

Duane B. Beeson, Albert J. Kutchins, Beeson, Tayer & Silbert, San Francisco Cal., for Cent. Valley Typographical Union, No. 46 et al.

Allen W. Teagle, David S. Durham, Jeffrey M. Tannenbaum, Littler, Mendelson, Fastiff & Tichy, San Francisco, Cal., for McClatchy Newspapers.

Appeal from the United States District Court for the Eastern District of California.

Before BARNES and WALLACE, Circuit Judges, and GRAY, ^* District Judge.

WALLACE, Circuit Judge:

McClatchy Newspapers (the Publisher) appeals from a summary judgment in favor of the Central Valley Typographical Union No. 46 (the Union), in which the district court enforced an arbitration award in favor of the Union. The Publisher objected to the venue, to the denial of its motion to stay the confirmation action pending final action on an unfair labor practice proceeding before the National Labor Relations Board (the Board), and to the resolution of the case on its merits. We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm in part, vacate the judgment in part, and remand the case with instructions.

I

The dispute between these parties is before us for the second time. In McClatchy Newspapers v. Central Valley Typographical Union No. 46, 686 F.2d 731 (9th Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982) (McClatchy I), we affirmed the district court's order confirming a 1979 arbitration award, in which the arbitrator ruled that the Publisher's employees had not forfeited a lifetime job guarantee by engaging in a sympathy strike. 686 F.2d at 733-34. However, we vacated an amended judgment that required the Publisher to reinstate the striking employees (the strikers), because a notice of appeal had been filed, thus divesting the district court of jurisdiction. Id. at 734-35.

The underlying facts of this dispute already have been discussed in McClatchy I and need not be repeated here. See id. at 732-33. Following a complaint by the Union, the Board issued an unfair labor practice complaint against the Publisher on April 8, 1983, challenging the Publisher's failure to reinstate the strikers. On January 11, 1984, an Administrative Law Judge (ALJ) concluded that the contract between the Union and the Publisher (the Scanner Agreement) did not require reinstatement. The Union appealed this decision, and the case is pending now before the Board.

On August 29, 1983, the parties held an arbitration hearing in Sacramento on the issue of whether the failure to reinstate the strikers violated the Scanner Agreement. On February 6, 1984, less than one month after the decision by the ALJ, the arbitrator issued an opinion and award concluding that the Scanner Agreement required reinstatement and ordering reinstatement.

On February 8, 1984, the Publisher filed an action to vacate the arbitration award in the United States District Court for the Northern District of California. On February 23, the Union filed an action to confirm the arbitration award in the Eastern District of California, the district from which McClatchy I was appealed. The Union filed a motion in the Northern District to dismiss for improper venue or, alternatively, to transfer to the Eastern District which the Publisher opposed. On April 30, the Northern District court granted the Union's motion and transferred the Publisher's action to the Eastern District under 28 U.S.C. Sec. 1406(a).

In the Eastern District, the Publisher moved to transfer both its action and the Union's action to the Northern District. The district court denied this motion. The parties also filed cross-motions for summary judgment. The district court granted the Union's motion for summary judgment and issued a stay pending appeal. Both actions were consolidated for appeal.

II

Initially, we are faced with the question of whether the Publisher's action was properly transferred to the Eastern District of California under 28 U.S.C. Sec. 1406(a), and whether that court properly refused to transfer both actions to the Northern District of California.

Under the clear language of the statute, transfers under section 1406(a) are proper only if the venue is improper in the transferor court. See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67, 82 S.Ct. 913, 915-16, 8 L.Ed.2d 39 (1962); Orion Shipping & Trading Co. v. United States, 247 F.2d 755, 757 (9th Cir.1957). The Publisher argues that venue is proper in the Northern District under section 10 of the United States Arbitration Act of 1925 (the Arbitration Act), 9 U.S.C. Sec. 10, which provides that "the United States court in and for the district wherein the award was made may make an order vacating the award," (emphasis added), because the arbitrator lives there, and because the award was written, mailed and served in the Northern District. Because the determination of this issue involves jurisdiction under the Arbitration Act, see United States v. Ets-Hokin Corp., 397 F.2d 935, 938-39 (9th Cir.1968) (Ets-Hokin), and there are no disputed facts involved, we review this determination de novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

We have declined previously to rule upon the applicability of the Arbitration Act to collective bargaining agreements. See San Diego County District Council of Carpenters v. Cory, 685 F.2d 1137, 1139 n. 4 (9th Cir.1982); see, e.g., Retail Delivery Drivers, Driver Salesmen, Produce Workers & Helpers Local 588 v. Servomation Corp., 717 F.2d 475, 477-78 (9th Cir.1983). Once again, we need not reach this issue because even if the statute does apply to collective bargaining agreements, we conclude that the award was not "made" in the Northern District as a matter of law. In Ets-Hokin, we decided that an Arizona district court was without jurisdiction to vacate an arbitration award because "[t]he arbitration ... was held, and the award was made by the arbitrators at San Francisco, California, and not in the District of Arizona." 397 F.2d at 938-39. The Publisher attempts to extrapolate from this language a general proposition that venue lies under section 10 wherever the arbitrator writes and mails the award. We disagree.

We interpret Ets-Hokin as placing primary reliance on where the arbitration was held. See also City of Naples v. Prepakt Concrete Co., 490 F.2d 182, 184 (5th Cir.) (jurisdiction under the Arbitration Act is determined by where the hearing is held), cert. denied, 419 U.S. 843, 95 S.Ct. 76, 42 L.Ed.2d 71 (1974). The residence of the arbitrator, or the location at which he drafts the decision, or the place from which the decision is mailed cannot be determinative of venue. If they were, venue would be subject to fortuitous events that would eliminate all predictability for litigants. While in this case a drive from Sacramento to San Francisco might not be onerous, inequitable results could obtain in other cases. If an arbitrator from New York had been chosen to hold the proceeding in Sacramento, and then had written his decision while on vacation in Hawaii, and posted it from his home in New York, the Publisher's test would leave us at a loss to determine the proper venue. A rule laying venue where the arbitration is held, however, recognizes that the parties already have indicated that the location is mutually convenient to settle their dispute.

The Publisher also asserts that venue lies in the Northern District under 28 U.S.C. Sec. 1391(b), as a district in which the claim arose, because the arbitration award that the Publisher seeks to vacate was written, mailed and served in that district. A claim arises "in any district in which a substantial part of the acts, events, or omissions occurred that gave rise to the claim for relief." Sutain v. Shapiro &amp Lieberman, 678 F.2d 115, 117 (9th Cir.1982) (per curiam) (Sutain), quoting Commercial Lighting Products, Inc. v. United States District Court, 537 F.2d 1078, 1080 (9th Cir.1976) (Commercial Lighting) (footnote omitted). Although venue is not equivalent to either personal or subject matter jurisdiction, see Leroy v. Grast Western United Corp., 443 U.S. 173, 180, 99 S.Ct. 2710, 2714, 61 L.Ed.2d 464 (1979) (Leroy), and may often involve significant questions of fact, e.g., Jennings v. McCall Corp., 320 F.2d 64, 67 (8th Cir.1963) (whether corporation is doing business within state for purposes of venue is a question of fact), the determination of where the claim arose for purposes of section 1391(b) on the basis of undisputed facts is a question of law reviewable de novo. See, e.g., Leroy, 443 U.S. at 185-87, 99 S.Ct. at 2717-19 (reviewing where claim arose de novo); Sutain, 678 F.2d at 117 (same); Commercial Lighting, 537 F.2d at 1080 (same). We conclude that the administrative acts of issuing the award alone cannot form "a substantial part of the acts" to which the Publisher objects as a matter of law. It objects to the merits underlying the arbitrator's award, and seeks vacation of the award as a remedy. The Publisher is not challenging the technical aspects of the award's issuance. Thus, we conclude that these aspects of the award, including service, do not constitute part of the claim and do not confer venue on the Northern District.

Similarly, section 301(c) of the Labor Management Relations Act, 1947, 29 U.S.C. Sec. 185(c), does not establish venue in this case. The Publisher argues that since the Union retained c...