Local 387 Ibew v. Navopache Elec. Coop., Inc. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOCAL 387 INTERNATIONAL No. 19-15588
BROTHERHOOD OF ELECTRICAL
WORKERS, D.C. No.
CV-18-04108-PHX-SRB
Plaintiff-Appellee,
v. MEMORANDUM*
NAVOPACHE ELECTRIC
COOPERATIVE, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted May 8, 2020**
Portland, Oregon
Before: WATFORD and HURWITZ, Circuit Judges, and BATTAGLIA, *** District
Judge.
*
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).
***
The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
Local 387 International Brotherhood of Electrical Workers (the “Union”) and
Navopache Electrical Cooperative, Inc. entered into a three-year collective
bargaining agreement (“CBA”) in 2015. During bargaining in 2018 regarding
proposed amendments to the new CBA, the Union and Navopache were unable to
reach agreement on the CBA’s management rights’ clause. On November 16, 2018,
the Union filed a Petition to Compel Arbitration (the “Petition”). The district court
granted the Petition and referred the matter to interest arbitration. Navopache now
timely appeals. See 28 U.S.C. § 1291. We have jurisdiction of the appeal under 28
U.S.C. § 1291 and affirm.
Although we agree with the district court that the relevant language of the
CBA is not “the epitome of draftsmanship,” we also agree that it requires the parties
to submit this dispute to interest arbitration. Although the words “interest
arbitration” do not appear in the CBA, Article VII, Section 5(b) clearly contemplates
the arbitration of such disputes: “Except as to matters submitted to arbitration
regarding matters arising out of differences concerning amendments to this
Agreement at termination, the Arbitrator’s authority shall be limited to the
interpretation and application of this Agreement.” Moreover, Navopache concedes
that the parties agreed to interest arbitration during the term of the CBA under Article
VIII, Section 2, and Article XI provides that “this Agreement shall remain in full
force and in effect during such period of negotiation as well as during the period of
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arbitration provided in Article VII, should any amendment be submitted for
arbitration as therein provided.” See Beach Air Conditioning & Heating, Inc. v. Sheet
Metal Workers Int’l Ass’n, 55 F.3d 474, 476 (9th Cir. 1995) (“[T]he mere expiration
of an agreement doesn’t terminate all obligations imposed by it, as interest
arbitration clauses survive expiration of the agreement.”).
Navopache asserts that the CBA provisions should be viewed only as
permissive – meaning that disputes are only submitted to interest arbitration if a
party first obtains the other party’s consent. However, a presumption of arbitrability
exists in the instant litigation. See AT&T Techs., Inc. v. Commc’ns Workers of Am.,
475 U.S. 643, 650 (1986); Nolde Bros., Inc. v. Local No. 358, Bakery &
Confectionery Workers Union, 430 U.S. 243, 254–55 (1997); see also Hotel & Rest.
Emps., & Bartenders Union, Local 703 v. Williams, 752 F.2d 1476, 1479 (9th Cir.
1985). And, that is not what Article VII says; it refers to “matters submitted to
arbitration” without any requirement that both parties agree to submission. See Trs.
of S. Cal. IBEW-NECA Pension Tr. Fund v. Flores, 519 F.3d 1045, 1047 (9th Cir.
2008); see also Alday v. Raytheon Co., 693 F.3d 772, 784 (9th Cir. 2012) (“As in all
contracts, the collective bargaining agreement’s terms must be construed so as to
render none nugatory and avoid illusory promises.” (quoting Smith v. ABS Indus.,
Inc., 890 F.2d 841, 845 (6th Cir. 1989))). There is no language in the CBA that
requires a separate standalone agreement as a prerequisite to interest arbitration once
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the term of the CBA has expired. The district court correctly read the CBA as
empowering an arbitrator to resolve the parties’ differences concerning amendments
to the CBA and did not err in compelling interest arbitration.
AFFIRMED.
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