Northern California Newspaper Guild Local 52 v. Sacramento Union, 87-2243

Citation856 F.2d 1381
Decision Date09 September 1988
Docket NumberNo. 87-2243,87-2243
Parties129 L.R.R.M. (BNA) 2361, 109 Lab.Cas. P 10,719 NORTHERN CALIFORNIA NEWSPAPER GUILD LOCAL 52, Plaintiff-Appellee, v. The SACRAMENTO UNION, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Mark H. Van Brussel, Wilke, Fleury, Hoffelt, Gould & Birney, Sacramento, Cal., for defendant-appellant.

Neil Bodine, Beeson, Tayer, Silbert & Bodine, Sacramento, Cal., for plaintiff-appellee.

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

Before KOELSCH, and LEAVY, Circuit Judges, and REA *, District Judge.

KOELSCH, Circuit Judge:

The Sacramento Union ("Employer") appeals the district court's order granting summary judgment in favor of the Northern California Newspaper Guild Local 52 ("Union") and compelling Employer to arbitrate the issue of the collective bargaining agreement's termination. We reverse and remand.

FACTS AND PROCEEDINGS

Employer refused to process Union's grievance that Employer's unilateral implementation of its last and best offer violated Article XV, Section 2 of their collective bargaining agreement ("Agreement "). It did so on alternative grounds: first, that the Agreement had expired; and second, that the dispute was not arbitrable. Article XV, Section 2 provides:

2. At any time within sixty (60) days immediately prior to the termination of this agreement, the Publisher (Employer) or the Guild (Union) may initiate negotiations for a new agreement, to take effect at the expiration of the present agreement. The terms and conditions of this agreement shall remain in effect during such negotiations.

The Agreement's arbitration clause, Article XII, Section 3, provides grievance and arbitration procedures for "[a]ll disputes and disagreements arising from application of this agreement, except renewal of this agreement...."

The district court passed only upon Employer's second contention. We are satisfied that if the Agreement was in effect, the district court's application of the "positive assurance" test, see AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), and its resulting determination that the parties' dispute over the interpretation and application of Article XV, Section 2 was arbitrable were correct. What primarily concerns us, however, is the district court's failure to resolve first the threshold determination whether the Agreement, and hence the duty to arbitrate, was in effect at the time the parties' dispute arose.

DISCUSSION

This appeal presents the same question raised in our recent decision in Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 v. Interstate Distributor Co., 832 F.2d 507 (9th Cir.1987)(Local No. 70), to wit: "who decides whether the agreement actually expired or was terminated the court or an arbitrator? " Id. at 508. The answer, we said, lies in the language of the collective bargaining agreement's arbitration clause. If the agreement "clearly and unmistakably" provides that the arbitrator is empowered to decide the type of dispute involved, then the exception to the general rule that courts decide the issue of the contract's termination applies. Id. at 511. See John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-47, 84 S.Ct. 909, 912-13, 11 L.Ed.2d 898 (1964); Cal. Trucking Assoc. v. Bhd. of Teamsters & Auto Truck Drivers, Local No. 70, 679 F.2d 1275, 1281 n. 5 (9th Cir.1981), cert. denied, 459 U.S. 970, 103 S.Ct. 299, 74 L.Ed.2d 281 (1982); Int'l Bhd. of Elec. Workers, Local 1228, AFL-CIO v. Freedom WLNE-TV, Inc., 760 F.2d 8, 10 (1st Cir.1985); Purex Corp. v. Automotive, Petroleum and Allied Indus. Employees Union, Local 618, 705 F.2d 274, 277 (8th Cir.1983); Rochdale Village, Inc. v. Public Serv. Employees Union, Local No. 80, 605 F.2d 1290, 1295 (2d Cir.1979); Int'l Union, United Auto., Aerospace and Agricultural Implement Workers of America, U.A.W., and Local 125 v. Int'l Tel. and Tel. Corp., Thermotech Div., 508 F.2d 1309, 1313 (8th Cir.1975); Local Union No. 998, Int'l Union, United Auto., Aircraft and Agricultural Implement Workers of America, AFL-CIO v. B. & T. Metals Co., 315 F.2d 432, 436 (6th Cir.1963); see also Corallo v. Merrick Cent. Carburetor, Inc., 733 F.2d 248, 253 (2nd Cir.1984)(summary judgment improper because fact issue whether contract had been terminated was for court to decide).

As a practical matter, we noted in Local No. 70 that "[w]hen the collective bargaining agreement contains a broad arbitration clause, the question whether a particular act or failure to act effectively serves to terminate the agreement is to be resolved by an arbitrator." 832 F.2d at 511. This case presents the unusual case where our prophecy in Local No. 70 is not borne out.

The arbitration clause in the Agreement at hand is broad but it is not unlimited; it is not as broad as the clause involved in Local No. 70. The clause in that case provided that " '[a]ny grievance or controversy affecting the mutual relations of the Employer and the Union' was to be resolved by an arbitrator." 832 F.2d at 508. This Agreement's arbitration clause, by contrast, limited arbitrable disputes to those involving "application of" the Agreement. We believe, as did the First Circuit when construing a similar clause, that "this arbitration clause reflects the parties' agreement to arbitrate any dispute involving construction of the substantive provisions of the contract." Int'l. Bhd. of Elec. Workers, Local 1228, AFL-CIO, 760 F.2d at 11.

A

The parties' primary dispute over the Agreement's termination is not over the application of any terms of the Agreement and thus is not arbitrable. Employer and Union simply disagree whether negotiations for a successor agreement continued through August 4 when Employer unilaterally implemented its last and final offer. There is no question that if negotiations ceased some ten days earlier, as Employer claims, that the Agreement expired as of that earlier date. Rather, this dispute is purely factual; its resolution does not require the interpretation or construction, i.e. "application", of any substantive provisions of the Agreement.

The result here is different from that reached in Local No. 70 for the very simple reason that this dispute falls outside the scope of the otherwise "broad" arbitration clause by virtue of the clause's inherent limitation to disputes arising from application of the Agreement. Although over the...

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