Ibew Local 1547 v. Alaska Communications Systems ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                       NOV 12 2021
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    INTERNATIONAL BROTHERHOOD OF                    No.    20-35021
    ELECTRICAL WORKERS, LOCAL 1547,
    AFL-CIO,                                        D.C. No. 3:19-cv-00160-SLG
    Plaintiff-Appellee,
    MEMORANDUM*
    v.
    ALASKA COMMUNICATIONS
    SYSTEMS HOLDINGS, INC.,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the District of Alaska
    Sharon L. Gleason, District Judge, Presiding
    Submitted October 7, 2021**
    Seattle, Washington
    Before: PAEZ, M. SMITH, and NGUYEN, Circuit Judges.
    Defendant Alaska Communications Systems Holdings, Inc. (“Alaska
    Communications”) and Plaintiff International Brotherhood of Electrical Workers,
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    Local 1547, AFL-CIO (“IBEW”) entered into a collective bargaining agreement
    (“CBA” or “the Agreement”) that governs the terms and conditions of certain
    individuals employed by Alaska Communications. Alaska Communications
    refused to grant voluntary recognition under the CBA to a group of employees who
    work in Oregon, contending that the CBA’s scope is limited to Alaska. IBEW
    filed a grievance and sought to arbitrate the grievance, but Alaska Communications
    refused, arguing it was outside the scope of the CBA’s arbitration provision.
    Relying on Dennis L. Christensen General Building Contractor, Inc. v.
    General Building Contractor, Inc., 
    952 F.2d 1073
     (9th Cir. 1991), the district court
    concluded that the parties’ dispute was arbitrable because it involved interpreting
    the CBA’s substantive provisions. Reviewing de novo, Westinghouse Hanford Co.
    v. Hanford Atomic Metal Trades Council, 
    940 F.2d 513
    , 516 (9th Cir. 1991), we
    agree and affirm.1
    The parties dispute the scope of the CBA’s arbitration provision in Section
    4.4. In relevant part, Section 4.4 provides that the arbitrator’s authority “shall be
    limited to determining questions directly involving the interpretation or application
    of specific provisions of [the CBA], and no other matter shall be subject to
    arbitration hereunder.” The scope of the Agreement as a whole is defined in
    Section 1.3 and provides:
    1
    We have jurisdiction under 
    28 U.S.C. § 1291
    .
    2
    This Agreement is applicable, within the State of Alaska, to all work
    within the scope of those job descriptions listed in the wage schedule
    in Appendix 1 and will be applicable to other positions or job
    classifications as agreed between the Union and [the] Company.
    Alaska Communications contends that Section 1.3 specifically exempts disputes
    regarding out-of-state work from the Agreement’s broad grievance and arbitration
    provisions.
    In determining whether a grievance is arbitrable, our function is limited to
    interpretation of the arbitration clause, rather than the substantive provisions of the
    Agreement. Dennis L. Christensen, 
    952 F.2d at 1077
     (first citing Haig Berberian,
    Inc. v. Cannery Warehousemen, 
    535 F.2d 496
    , 499 (9th Cir. 1976) (per curiam);
    and then citing Westinghouse Hanford Co., 
    940 F.2d at 521
    ). The arbitration
    clause in the CBA is broad, covering all disputes related to the terms of the
    Agreement, including disputes about “the interpretation or application of [a]
    specific provision of [the] Agreement.” Because there is no express provision in
    the CBA excluding a particular grievance from arbitration, only “the most forceful
    evidence of a purpose to exclude the claim from arbitration” can overcome the
    presumption in favor of arbitration. AT&T Techs. v. Commc’ns. Workers of Am.,
    
    475 U.S. 643
    , 650 (1986) (quoting United Steelworkers of Am. v. Warrior & Gulf
    Nav. Co., 
    363 U.S. 574
    , 584-85 (1960)).
    Alaska Communications presents no such evidence. It generally argues that
    Section 1.3 of the CBA, which provides that the “Agreement is applicable within
    3
    the state of Alaska,” precludes arbitration of any dispute concerning employees
    outside of Alaska. We rejected a similar argument involving a geographic scope
    provision in Dennis L. Christensen. 
    952 F.2d at
    1077–78. There, we held that we
    must “look only to the contract’s arbitration clause, rather than to the substantive
    provisions of the agreement, to determine whether a dispute is arbitrable.” 
    Id. at 1077
    . Section 1.3 does not mention arbitration at all, let alone expressly carve out
    the disputed issue from the CBA’s grievance and arbitration provisions.
    Alaska Communications attempts to distinguish Dennis L. Christensen
    because that case involved a “modification” clause. But the parties’ CBA also
    contains a modification clause, specifying the circumstances when the Agreement
    will be expanded to cover certain employees. Alaska Communications further
    attempts to distinguish Dennis L. Christensen by arguing that modifications to the
    labor agreements in that case concerned the geographic limits of the agreements’
    coverage. There, however, we also held that the geographic coverage provisions of
    the agreements at issue did “not establish that disagreements in interpreting the
    modification provision of the master labor agreement were not to be arbitrated like
    any other disputes concerning the interpretation or application of that provision.”
    
    952 F.2d at 1077
     (emphasis added) (quotation marks omitted). Alaska
    Communications cites no caselaw supporting its contention that a provision
    governing the scope of an agreement restricts the reach of its arbitration provision.
    4
    Fundamentally, the parties dispute whether a particular provision of the
    CBA can be invoked for out-of-state employees. That is a dispute about “the
    interpretation or application of [a] specific provision of [the] Agreement,” and thus
    it is covered by the CBA’s arbitration clause. See id.; Haig Berberian, 
    535 F.2d at
    498–99.
    AFFIRMED.2
    2
    Appellee’s Request for Judicial Notice (Dkt. No. 35) is denied as moot because
    we have resolved this appeal in their favor without considering the additional
    documents.
    5