Sheet Metal Workers Intern. Ass'n, Local Union No. 150 v. Air Systems Engineering, Inc.

• Decision Date: 08 November 1991
• Docket Number: No. 89-35039,89-35039
• Citation: 948 F.2d 1089
• Parties: 138 L.R.R.M. (BNA) 2897, 120 Lab.Cas. P 11,015, 121 Lab.Cas. P 10,171 SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL UNION NO. 150, Plaintiff-Appellant, v. AIR SYSTEMS ENGINEERING, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1089

948 F.2d 1089

138 L.R.R.M. (BNA) 2897, 120 Lab.Cas. P 11,015,

121 Lab.Cas. P 10,171

SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL UNION NO. 150, Plaintiff-Appellant, v. AIR SYSTEMS ENGINEERING, INC., Defendant-Appellee.

No. 89-35039.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 11, 1990.

Decided Oct. 3, 1990.

As Amended Nov. 8, 1991.

Marion G.M. Leach, F.G. Enslow & Associates, Tacoma, Wash., for plaintiff-appellant.

Judd H. Lees, Williams, Kastner & Gibbs, Bellevue, Wash., for defendant-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT, POOLE and BRUNETTI, Circuit Judges.

OPINION

BRUNETTI, Circuit Judge:

Sheet Metal Workers International, Local Union 150, filed an action in the district court to enforce an arbitration award under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 141 et seq. The award was made pursuant to an interest arbitration clause in the collective bargaining agreement between the Union and Air Systems Engineering, the appellee-employer. The district court ruled that the interest arbitration clause was not in effect at the time the Union submitted the matter to arbitration, and the Court did "not have subject matter jurisdiction of this action pursuant to 29 U.S.C. § 185(A)[a]." We affirm.

STANDARD OF REVIEW

We review factual determinations made by the district court for clear error and its conclusions of law de novo. Bay Area Typographical Union v. Alameda Newspaper, 900 F.2d 197, 199 (9th Cir.1990).

FACTS AND PROCEEDINGS BELOW

Sheet Metal Workers Local 150 (the "Union") entered into a collective bargaining agreement with Air Systems Engineering on June 1, 1977. The contract contained the following duration (article XII) and interest arbitration (article X) provisions which gave rise to the dispute in this case:

ARTICLE X

SECTION 8. In addition to the settlement of grievances arising out of interpretation or enforcement of this agreement as set forth in the preceding sections of this Article, any controversy or dispute arising out of the failure of the parties to negotiate a renewal of this agreement shall be settled as hereinafter provided:

(a) Should the negotiations for renewal of this agreement become deadlocked, ... [and if an] attempt to conciliate the differences between the parties and bring about a mutually acceptable agreement [fails], ... [then] [T]he dispute shall be submitted to the National Joint Adjustment Board [for binding arbitration]....

ARTICLE XII

SECTION 1. This Agreement ... shall become effective on the 1st day of June, 1980, and remain in full force and effect until the 31st day of May, 1983, and shall continue in force from year to year thereafter unless written notice of reopening is given not less than ninety (90) days prior to the expiration date. In the event such notice of reopening is served, this Agreement shall continue in force and effect until conferences relating thereto have been terminated by either party, except as modified by Section 8 of Article X.

On February 28, 1983, Tom Moody, the business manager for the Union, sent a notice of reopening to Air Systems. That notice was not timely because Air Systems did not receive it until March 8. On March 29, in response to the Union's untimely notice to reopen negotiations, Air Systems informed the Union that it would terminate the current collective bargaining agreement on May 31, 1983. The letter also invited the Union to enter into negotiations for a new agreement.

Over the next year, the parties negotiated for a contract. Air Systems characterizes these meetings as negotiations for a new agreement; the Union urges that they were negotiating a renewal of the existing contract.

In March of 1984, Air Systems tendered its last and final offer which the Union refused to accept. On March 21, the Union informed Air Systems that because an impasse in negotiations had been reached, it was requesting resolution of the matter through arbitration pursuant to article X, section 8 of the contract. Air Systems responded on April 11, reiterating its position that the contract had been terminated and stating that the arbitration clause was unenforceable.

In May the Union requested joint submittal to arbitration by the National Joint Adjustment Board. Air Systems refused to submit the dispute to arbitration. The NJAB met to hear the case on June 19, and Air Systems did not attend. On June 20, the NJAB issued its decision, stating the parties were to be bound for two years to an agreement with the same terms as the original contract.

Air Systems refused to abide by the arbitration award, contending the arbitrator had no jurisdiction. The Union filed this action in federal district court to enforce the arbitration award under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a). The district court, after a bench trial, dismissed the case for "lack of subject matter jurisdiction." ¹ The Union appeals the dismissal and requests attorney's fees.

DISCUSSION

Section 301 of the Labor Management Relations Act grants a district court jurisdiction to enforce an arbitration award entered into pursuant to a collective bargaining agreement. 29 U.S.C. § 185(a). As part of an enforcement action under § 301, the court must determine whether the parties to the arbitration award consented by contract or by conduct to be bound by the arbitration. See George Day Constr. Co. v. United Bhd. of Carpenters, Local 354, 722 F.2d 1471, 1474-75 (9th Cir.1984).

The collective bargaining agreement between the Union and Air Systems contained an arbitration clause. The collective bargaining agreement was to remain in effect until May 31, 1983 and continue in effect from year to year thereafter unless either side gave written notice to reopen the agreement at least ninety days before the automatic renewal date pursuant to article XII of the contract. If timely notice to reopen was given, the agreement would continue in effect until negotiations were complete or were terminated by either party except as modified by article X, § 8, the interest arbitration clause. Section 8 establishes an arbitration procedure for resolving "any controversy or dispute arising out of the failure of the parties to negotiate a renewal of this agreement." If negotiations reach an impasse, the dispute would be submitted to the National Joint Adjustment Board ("NJAB"). The NJAB's decision is final and binding upon the parties.

The question of arbitrability is an issue for judicial determination. AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986); Associated Plumbing & Mechanical Contractors v. Local Union No. 447, Utd. Ass'n of Journeymen, 811 F.2d 480, 481 (9th Cir.1987). While there is a strong presumption of arbitrability, AT & T, 475 U.S. at 650, 106 S.Ct. at 1419, this presumption must be balanced with the principle that " 'arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.' " AT & T, 475 U.S. at 648, 106 S.Ct. at 1418 (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960)). Air Systems argues it did not agree to submit this dispute to arbitration because, at the time the Union sent the matter to arbitration, the interest arbitration clause of the contract could not be properly invoked.

We have previously dealt with contract language very similar to that involved in this case. See Hotel & Restaurant Employees and Bartenders Union, Local 703 v. Williams, 752 F.2d 1476, 1479 (9th Cir.1985) (interest arbitration clause survives contract expiration); American Metal Products, Inc. v. Sheet Metal Workers Int'l Ass'n, Local 104, 794 F.2d 1452, 1455 (9th Cir.1986) (interest arbitration...