IATSE v. InSync Show Prods., Inc.

• Decision Date: 04 September 2015
• Docket Number: No. 12–17200.,12–17200.
• Citation: 801 F.3d 1033
• Parties: INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEE AND MOVING PICTURE TECHNICIANS, ARTISTS, AND ALLIED CRAFTS OF THE UNITED STATES, IT'S TRUSTED LOCAL 720 LAS VEGAS, NEVADA, aka IATSE Local 720, Plaintiff–Appellee, v. InSYNC SHOW PRODUCTIONS, INC., Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

801 F.3d 1033

INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEE AND MOVING PICTURE TECHNICIANS, ARTISTS, AND ALLIED CRAFTS OF THE UNITED STATES, IT'S TRUSTED LOCAL 720 LAS VEGAS, NEVADA, aka IATSE Local 720, Plaintiff–Appellee

v.InSYNC SHOW PRODUCTIONS, INC., Defendant–Appellant.

No. 12–17200.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 11, 2014.

Filed Sept. 4, 2015.

Bryan J. Cohen (argued) and Gregory J. Kamer, Kamer Zucker Abbott, Las Vegas, NV, for Defendant–Appellant.

David A. Rosenfeld (argued) and William A. Sokol, Weinberg Roger & Rosenfeld, Alameda, CA; Kristina L. Hillman, Weinberg, Roger & Rosenfeld, Los Angeles, CA, for Plaintiff–Appellee.

Before: A. WALLACE TASHIMA and RICHARD A. PAEZ, Circuit Judges, and FREDERIC BLOCK, Senior District Judge.^*

OPINION

PAEZ, Circuit Judge:

This appeal presents two issues arising from a petition to compel arbitration under a collective bargaining agreement between the International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists, and Allied Crafts of the United States, its Territories and Canada and its Trusteed Local 720 Las Vegas, Nevada (“IATSE”) and InSync Show Productions, Inc. (“InSync”). It is undisputed that IATSE and InSync agreed to a collective bargaining agreement containing both a grievance and arbitration procedure and a provision governing the length of the agreement's life. After the parties unsuccessfully negotiated regarding a potential successor agreement, IATSE filed a petition to compel arbitration in federal court. The district court granted IATSE's petition to compel arbitration pursuant to the parties' initial agreement and “stayed” the case. We must decide whether we have jurisdiction over InSync's appeal from the order compelling arbitration and, if so, whether the district court properly compelled arbitration. We conclude that the district court's arbitration order was final under 28 U.S.C. § 1291 because the stay lacked any legal or practical effect. We therefore exercise jurisdiction to review the order compelling arbitration, and we affirm.

I. Background

InSync and IATSE entered into a collective bargaining agreement (the “2003–2007 CBA”) in January 2003. Article 26 of the 2003–2007 CBA, which governs the term of the agreement, contains an “evergreen clause.” Article 26 stated:

Except as otherwise provided for herein, this Agreement shall become effective on the 1st day of January, 2003 and shall continue in full force and effect to and including December 31st, 2007 and from year to year thereafter. The Employer agrees to live by the applicable wages, terms and conditions for additional projects in the future.

(emphasis added).

Article 15 of the 2003–2007 CBA includes a grievance and arbitration procedure. That provision defines “a grievance ... as a claim or allegation by an employee in the bargaining unit or by the Union that the Employer has violated or is violating the provisions of this Agreement.” If the parties proceed to arbitration, “[t]he arbitrator's award shall be based solely upon his interpretation of the meaning or application of the provisions of this Agreement.”

On October 2, 2007, IATSE informed InSync that IATSE was interested in changing the terms of the 2003–2007 CBA. InSync responded on November 10 with a letter, explaining “that InSync did not intend to renew the [2003–2007 CBA].” IATSE wrote back on November 15, stating that the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq., required the parties to bargain in good faith. IATSE included a proposed “Extension Agreement,” the “2008–2012 CBA,” that InSync indicated would “extend the terms of the 2003–2007 [CBA].” InSync did not sign the 2008–2012 CBA. On December 21, 2007, IATSE reminded InSync of the requirement to bargain in good faith. The record does not reflect further communication until August 2008.

Between August 22, 2008 and February 11, 2009, InSync and IATSE corresponded about a possible successor collective bargaining agreement. On February 11, 2009, InSync wrote to IATSE, stating that “the parties had reached impasse in bargaining and InSync reserved the right to implement any or all of the terms and conditions set forth in the Company's [previously sent] December 10, 2008, proposal.” Shortly thereafter, on February 20, 2009, InSync sent and invited a response to its “last, best and final offer.” On March 17 and 18, IATSE sent a counterproposal, and InSync reiterated its position without accepting that counterproposal. The parties did not reach an agreement.

On August 2, 2011, IATSE invoked the parties' grievance and arbitration procedure and requested a meeting. Two weeks later, InSync responded that the “parties had bargained to impasse between 2007 and 2009, no extension agreement had been signed, and the statute of limitations under Section 10(b) of the [NLRA] barred any legal actions based on the negotiations during 2007–2009.”

On September 30, 2011, IATSE wrote to InSync, asserting its position that InSync was bound by provisions in the 2003–2007 CBA that rendered the proposed 2008–2012 CBA effective. The 2008–2012 CBA had terms “identical” to those in the 2003–2007 CBA. On October 10, InSync informed IATSE that it believed that “a refusal to bargain charge under Section 8(a)(5) [of the NLRA] was time barred, and a grievance under Article 15 of the collective bargaining agreement was also time barred.” On October 24, IATSE responded with a letter, stating that the letter “serve[d] as the Union's grievance filed pursuant to Article 15, because the Employer is violating each and every section of the Collective Bargaining Agreement ... insofar as the Employer is operating on a completely non-union basis and ignoring the contract completely.” InSync responded on November 2, reiterating its views on timeliness, and concluding: “The best I can tell you is do what you have to do.”

On February 2, 2012, IATSE filed a petition to compel arbitration in the district court. IATSE argued that the 2008–2012 CBA, with terms identical to those in the 2003–2007 CBA, was enforceable as a result of the 2003–2007 CBA's evergreen clause. InSync responded by filing a motion to dismiss, or, alternatively, for summary judgment, on grounds that the NLRA preempted IATSE's action and that the district court lacked jurisdiction.

The district court rejected IATSE's position that the 2008–2012 CBA “binds the parties,” reasoning that such a position “apparently read out the portion of the Evergreen Clause that states that the [2003–2007] CBA would continue in effect ‘from year to year’ after its expiration, not in block chunks of four-year periods.” Instead, the court considered the text of the 2003–2007 CBA and declined to “reach the merits of [InSync's] argument [that InSync had cancelled the 2003–2007 CBA's evergreen clause].” The court took no position on the merits of InSync's argument and “decide[d] that because [the] argument requires interpretation of the [2003–2007] CBA and a determination of whether it was cancelled, the argument is better left for an arbitrator to decide pursuant to the arbitration clause and [IATSE]'s grievance process.” The court granted IATSE's petition to compel arbitration, denied InSync's motion, and ordered “that this case shall be STAYED pending the completion of arbitration.”

II. Jurisdiction

A.

We turn first to whether we have jurisdiction to entertain InSync's appeal. IATSE argues that appellate jurisdiction does not exist because the district court's order compelling arbitration and staying the case did not constitute a final order under 28 U.S.C. § 1291. As we explain below, we conclude that we have jurisdiction and that we may address the merits of InSync's appeal.

“Federal courts ‘have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.’ ” Couch v. Telescope Inc., 611 F.3d 629, 632 (9th Cir.2010) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) ). Generally, this court “ha[s] jurisdiction of appeals from all final decisions of the district courts of the United States[.]” 28 U.S.C. § 1291. “Appeal gives the upper court a power of review, not one of intervention. So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

Under Goodall–Sanford v. United Textile Workers of America, A.F.L. Local 1802, 353 U.S. 550, 77 S.Ct. 920, 1 L.Ed.2d 1031 (1957), we have jurisdiction over InSync's appeal of the order compelling arbitration. In Goodall–Sanford, a union brought a suit in federal district court under § 301(a) of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a), and sought to “compel specific performance of a grievance arbitration provision of a collective bargaining agreement.” Goodall–Sanford, 353 U.S. at 550–51, 77 S.Ct. 920. The union sought no other relief. See id. The district court ordered arbitration, and on appeal, the First Circuit affirmed. Id. at 551, 77 S.Ct. 920. Subsequently, the Supreme Court also affirmed. Id. In affirming, the Court held that appellate jurisdiction existed, explaining that “[a]rbitration [wa]s not merely a step in judicial enforcement of a claim nor auxiliary to a main proceeding, but the full relief sought.” Id. “A decree under § 301(a) ordering enforcement of an arbitration provision in a collective bargaining agreement is, therefore, a ‘final decision’ within the meaning of 28 U.S.C. § 1291.” Id. at 551–52, 77 S.Ct. 920.

We have held that Goodall–Sanford permits review of appeals from orders compelling arbitration as the “full relief sought” in § 301 cases. See United Food & Commercial Workers Union, Locals 197, 373, 428, 588, 775, 839, 870, 1119, 1179 & 1532 v. Alpha Beta Co., 736 F.2d 1371, 1373 & n. 3 (9th Cir.1984) (citing Goodall–Sanford and stating: “Because the...