International Union, United Auto., Aerospace and Agr. Implement Workers of America and its Amalgamated Local Union No. 1369 v. Telex Computer Products, Inc.

• Decision Date: 13 April 1987
• Docket Number: No. 84-2794,84-2794
• Citation: 816 F.2d 519
• Parties: 125 L.R.R.M. (BNA) 2163, 55 USLW 2576, 106 Lab.Cas. P 12,315 INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA and ITS AMALGAMATED LOCAL UNION NO. 1369, Plaintiffs-Appellees, v. TELEX COMPUTER PRODUCTS, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 519

816 F.2d 519

125 L.R.R.M. (BNA) 2163, 55 USLW 2576,

106 Lab.Cas. P 12,315

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA and ITS AMALGAMATED LOCAL UNION NO. 1369 Plaintiffs-Appellees, v. TELEX COMPUTER PRODUCTS, INC., Defendant-Appellant.

No. 84-2794.

United States Court of Appeals Tenth Circuit.

April 13, 1987.

T. Chad Farris of Youngdahl, Youngdahl & Wright, P.A., Little Rock, Ark., for plaintiffs-appellees.

Thomas W. Craddock and Robert B. Krakow of Gibson, Dunn & Crutcher, Dallas, Tex., and Kenneth E. Ristau, Jr., Newport Beach, Cal., for defendant-appellant.

Before LOGAN, ANDERSON and TACHA, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 34.1.8(c). The cause is therefore ordered submitted without oral argument.

Telex Computer Products, Inc. appeals from an order of the district court requiring it to arbitrate a grievance pursuant to the terms of a collective bargaining agreement ("Agreement"). The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America and Its Amalgamated Local Union No. 1369 ("Union") brought this action to compel arbitration when Telex refused to arbitrate whether employees at its newly constructed plant at Owasso, Oklahoma, came under the Agreement.

The Agreement was for a term of approximately two years, expiring on June 24, 1985. It designated the Union as the exclusive bargaining agent for specified classifications of Telex workers "employed During the term of the Agreement, Telex opened the new facility in question at Owasso, Oklahoma. When it refused to recognize the Union as agent for employees at that facility, the Union filed a grievance under the Agreement, seeking recognition on the ground that the Owasso facility was within the metropolitan Tulsa, Oklahoma area. On May 21, 1984, the Union notified Telex of its desire to arbitrate the grievance. Telex refused contending that:

at the company's establishments located in the metropolitan Tulsa, Oklahoma, area" (Article 2, section 2.1 of the Agreement), and it required arbitration of grievances unresolved through the grievance procedure (Articles 7 and 8 of the Agreement).

[t]he determination of questions of representation, accretion and appropriate units does not depend upon contract interpretation, but involves the application of statutory policy, standards and criteria. The application of statutory policy, standards and criteria are matters for decision of the National Labor Relations Board rather than an arbitrator.

R.Vol. I at 44.

This suit to enforce arbitration was filed by the Union in federal district court on June 22, 1984. On cross-motions for summary judgment the district court ruled that the issue was limited to whether Telex had a duty to arbitrate grievances under the Agreement, leaving any necessary review of the merits of a decision in arbitration to future proceedings, such as an enforcement action. The court then held that Telex had a contractual duty to arbitrate and ordered it to do so. This appeal by Telex followed. All of these proceedings occurred while the Agreement was in effect.

In its briefs Telex has brought to our attention the fact that during the pendency of this appeal the Agreement expired and the Union was decertified following an election. Thus, in addition to challenging the judgment below, Telex now argues: (a) that it has no duty to arbitrate with a decertified union under an expired agreement; (b) expiration of the agreement and decertification of the Union have rendered the grievance moot; (c) it is impossible to accrete a group of employees to a non-existent bargaining unit; and (d) in any event, a decision for the Union in arbitration would result in an unfair labor practice (1) by permitting a decertified union to represent workers, contrary to their right under section 7 of the National Labor Relations Act (NLRA) to select their representatives and (2) by forcing Telex to bargain with an organization which does not lawfully represent the employees, in violation of section 8(b)(1)(A) of the NLRA.

Telex also presses on appeal its argument before the district court that arbitration is improper since a decision in favor of the Union could only lead to an unlawful result, i.e., accretion of employees in violation of their right to select their own bargaining agent. A corollary argument is that accretion issues must be decided by the National Labor Relations Board (NLRB).

The parties raise no factual issues, and we review the grant of summary judgment and the bare legal issues under the usual standards. On the basis of that review we affirm the order of the district court requiring arbitration.

I.

Decertification of the Union and expiration of the Agreement occurred during this appeal. Telex contends that as a consequence, this proceeding has been rendered moot. These events are not part of the record and no formal motion has been made to include them. However, in their briefs both parties acknowledge and have argued the impact of expiration and decertification. The Union included a copy of the NLRB certification of the results of the election showing that Telex employees voted against union representation. The propriety of the election is not contested.

Mootness is jurisdictional. Powell v. McCormack, 395 U.S. 486, 496 n. 7, 89 S.Ct. 1944, 1950 n. 7, 23 L.Ed.2d 491 (1968); Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S.Ct. 391, 394 n. 3, 11 L.Ed.2d We find no merit in Telex's contentions respecting mootness. Expiration of a collective bargaining agreement does not terminate rights and obligations arising under the contract during its term. The obligation to arbitrate survives expiration where (as here) "the dispute arose during the life of the contract but arbitration proceedings had not begun before termination. The same would be true if arbitration processes began but were not completed, during the contract's term." Nolde Bros., Inc. v. Bakery Workers, 430 U.S. 243, 251, 97 S.Ct. 1067, 1071-72, 51 L.Ed.2d 300 (1977) (citing John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964)); Steelworkers v. Enterprise Wheel & Car of Vistron Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 424 (1960); International Ass'n of Machinists & Aerospace Workers, Local Lodge 2369 v. Oxco Brush Div., 517 F.2d 239, 242-243 (6th Cir.1975); Procter & Gamble, Indep. Union v. Procter & Gamble Mfg. Co., 312 F.2d 181, 186 (2d Cir.1962), cert. denied, 374 U.S. 830, 83 S.Ct. 1872, 10 L.Ed.2d 1053 (1963). Even where a dispute arises after termination of a collective bargaining agreement the parties are obliged to arbitrate grievances under the agreement, as prescribed therein, unless "the presumptions favoring arbitrability ... [are] negated expressly or by clear implication." Nolde Bros., 430 U.S. at 255, 97 S.Ct. at 1074. We hold, therefore, that these proceedings are unaffected by expiration of the Agreement between the Union and Telex.

                347 (1963). 1   We are compelled to address a claim that the case has become moot regardless of the manner in which we are advised of the facts.  See sources cited supra note 1.  This case is moot if expiration of the Agreement has deprived the court of power to grant the relief requested.  It is also moot as to the Union if the Union is found to have no legal interest in the outcome.  Furthermore, even if expiration of the Agreement is determined not to affect rights secured by it during its term, the proceedings are subject to abatement (as distinguished from mootness) for want of a proper party capable of pursuing the suit. 2
                

Admittedly, decertification poses a different problem since it is directed not to whether disputes and procedures survive termination but to who may prosecute the dispute. Telex argues that the grievance, by its terms, is moot since it seeks recognition of the Union as a representative under Section 2 of the Agreement, and the employees have by election removed the Union as representative. Furthermore, regardless of the nature of the grievance, Telex argues that the decertified union has lost its standing to continue the dispute; Telex has no obligation to deal with the decertified union, and, in fact, it would constitute an unfair labor practice to do so.

Those and related arguments fail for three reasons: first, the Union is a real party in interest to the Agreement, having substantial rights of its own thereunder, not the least of which concern potential dues and agency fees. The Agreement is not only specifically between the Union and Telex, but the Union is referred to both together with and as an entity separate from employees. ³ Article 1 of the Agreement Second, decertification does not retroactively obliterate contract rights. Events which may change relations between and among employer, union, and employees may impact but do not destroy the right to redress arising under and relating to a valid preexisting contract. Thus, in John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), a merger caused the union to lose its majority status, changed the employees' status, and introduced a new employer that was not even a signatory to the prior union contract. Yet the Supreme Court held that rights under the old contract survived and the new employer was required to recognize them. In short, the Union's action is at present directed solely to the Agreement and the time it was in force, including a grievance arising during that time. It was the authorized representative then and properly acts in that limited role now. In United States Gypsum Co. v. United Steelworkers, 384 F.2d 38 (5th Cir.1967), cert. denied, 389 U.S. 1042, 88...