Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 v. Interstate Distributor Co., 86-1919

• Decision Date: 13 November 1987
• Docket Number: No. 86-1919,86-1919
• Parties: 126 L.R.R.M. (BNA) 3127, 56 USLW 2336, 107 Lab.Cas. P 10,216 BROTHERHOOD OF TEAMSTERS AND AUTO TRUCK DRIVERS LOCAL # 70, Petitioner-Appellant, v. INTERSTATE DISTRIBUTOR COMPANY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 507

832 F.2d 507

126 L.R.R.M. (BNA) 3127, 56 USLW 2336,

107 Lab.Cas. P 10,216

BROTHERHOOD OF TEAMSTERS AND AUTO TRUCK DRIVERS LOCAL # 70, Petitioner-Appellant, v. INTERSTATE DISTRIBUTOR COMPANY, Respondent-Appellee.

No. 86-1919.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 1987.

Decided Nov. 13, 1987.

David A. Rosenfeld, San Francisco, Cal., for petitioner-appellant.

Randolph C. Roeder, San Francisco, Cal., for respondent-appellee.

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

Before FLETCHER and REINHARDT, Circuit Judges, and KENYON, ^* District Judge.

REINHARDT, Circuit Judge:

This appeal presents a not so novel question: When one of the parties to a collective bargaining agreement seeks to compel arbitration of a grievance pursuant to an arbitration clause contained in the agreement, and the other party claims that the agreement expired or was terminated before the conduct giving rise to the grievance occurred, who decides whether the agreement actually expired or was terminated--the court or an arbitrator?

I. Facts

The Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 and the Interstate Distributor Company entered into a collective bargaining agreement that was effective on April 1, 1982. The agreement contained a broad arbitration clause: to wit, "[a]ny grievance or controversy affecting the mutual relations of the Employer and the Union" was to be resolved by an arbitrator. The contract provided that arbitral decisions "shall be final and binding."

The collective bargaining agreement also contained a standard termination clause. That provision read:

This agreement shall be in full force and effect, unless otherwise provided as of the first day of April, 1982, and shall remain in full force and effect from that date through the thirty-first day of March, 1985, and shall be automatically renewed thereafter from year to year unless [either] party to this Agreement shall give written notice to the other of its desire to change or modify said Agreement. Said written notice to be given not more than ninety (90) days nor less than sixty (60) days prior to any anniversary date of this Agreement.

On January 23, 1985, Interstate wrote the Teamsters stating that it desired "to change and/or modify the agreement between the parties." Approximately a week later, the union replied, saying that it too was willing to "open" the Agreement. Nothing further transpired until June, when Interstate wrote the union that it was going to withdraw recognition at the end of the month. According to the union, the company then violated the agreement by changing some of its operations on July 2. On the following day, the Teamsters disputed the company's right to make the changes and requested that the dispute be submitted to arbitration.

Interstate refused to arbitrate because, it argued, the contract had been terminated some three months earlier, and along with it any obligation to arbitrate future disputes. The Teamsters brought suit to compel arbitration. ¹ The district court agreed with Interstate that the exchange of letters of January 1985 effected a termination of the collective bargaining agreement as of the end of the contract term. Accordingly, it denied the Teamsters' petition to compel arbitration and granted Interstate's motion for summary judgment. The Teamsters appeal.

II. Discussion

The parties do not deny that the agreement to arbitrate contained in the 1982 collective bargaining contract covers grievances over changes in operations or working conditions. The only question is whether that agreement to arbitrate expired or was terminated on or about March 31. See generally F. Elkouri & E. Elkouri, How Arbitration Works 212-21 (4th ed. 1985).

In response to the union's petition to compel arbitration of the dispute over the change in operations, Interstate argued that because any change occurred only after the contract between the parties had expired or been terminated, no agreement to arbitrate the dispute existed. Interstate contended that any disagreement regarding the status of the contract must be resolved by the court, not an arbitrator. Interstate's argument is, essentially, that the question whether a contract to arbitrate a particular dispute is in effect is always one for the court to decide.

Generally, as Interstate says, courts not arbitrators decide whether there is an agreement to arbitrate a dispute. Such questions arise in two different contexts. Most often, they arise with respect to whether an arbitration agreement contained in an existing collective bargaining agreement applies to a particular disagreement between the parties. In such case, it is almost always the court which decides whether the arbitration agreement applies to the particular dispute. In doing so, however, the court resolves all doubtful questions in favor of coverage under the arbitration agreement. Thus, most often, the dispute ends up before the arbitrator anyway. See Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960) ("An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage."). While an arbitration clause could be drafted in such a manner as to authorize an arbitrator to resolve disagreements over the scope of the clause (as well as the merits of the contractual disputes), courts do not ordinarily construe standard arbitration clauses, even the broader ones, as doing so. Rather the courts reason that where there is a legitimate disagreement over the scope or coverage of the arbitration clause itself, it is unclear whether the parties have contracted for arbitration of the particular dispute and a court must decide that question.

The other type of question that commonly arises is the type that confronts us here whether there is a collective bargaining agreement--and thus an arbitration provision--in effect at a particular time. In some instances, the analysis is a simple one; if the parties disagree as to whether they ever entered into any arbitration agreement at all, the court must resolve that dispute. However, the problem is more complicated where, as here, the parties agree that they entered into an agreement containing an arbitration clause but disagree over whether the contract has expired or been terminated. Before considering how that type of disagreement should be resolved, we should examine, at least briefly, the Supreme Court's most recent labor arbitration decision.

In AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), the Court said "[u]nless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator." 106 S.Ct. at 1418. Under AT & T Technologies, the parties to a collective bargaining agreement are free to provide that an arbitrator shall decide the question whether they agreed to arbitrate a dispute, i.e., the question of substantive arbitrability, but only if they leave no doubt that such was their intent. As AT & T Technologies says, where the parties "clearly and unmistakably provide otherwise," the general rule that courts must decide the question does not apply. Even prior to AT & T Technologies, we reached a similar conclusion. In George Day Construction Co. v. United Brotherhood of Carpenters & Joiners, Local 354, 722 F.2d 1471, 1474-75 (9th Cir.1984), we stated, "because an arbitrator's jurisdiction is rooted in the agreement of the parties, ... the parties may agree to submit even the question of arbitrability to the arbitrator for decision."

In the case before us, the real question is one step removed from the issue of substantive arbitrability discussed in AT & T Technologies. The disagreement between the parties here is not primarily over what the arbitration clause provides, or what its scope is, but rather concerns the effect to be given a letter--or an exchange of letters--under the terms of the termination or expiration clause of the parties' collective bargaining agreement. In short, the real dispute is over the proper meaning or interpretation of the termination clause.

Where, as here, the petitioner claims that the parties have agreed to allow an arbitrator to decide whether a contract containing an arbitration agreement has been terminated or remains in effect, the proper judicial inquiry is not the one that the district court made--i.e., what does the termination clause provide and how should it be construed?--but rather, have the parties agreed that an arbitrator should decide that question? And, where as here, the agreement contains a broad arbitration clause covering all disputes concerning the meaning of the terms and provisions of the agreement and the clause does not expressly exclude disputes over the termination provision, the answer is, again, simple. Disputes over expiration or termination must be submitted to arbitration. ²

The reason that arbitrators rather than courts generally decide whether collective bargaining agreements containing broad arbitration clauses have expired or been terminated is readily apparent. The issue involves the interpretation of the expiration or termination provision of the agreement, and standard arbitration clauses ordinarily provide that such interpretations, like all others necessary to the resolution of disputes over the meaning of the contract, shall be made by an arbitrator. There is usually no dispute, as there is none here, over the scope of the arbitration clause, and there is usually no claim that disputes regarding expiration or termination have been excluded from coverage. Here, as is typical of...