Iatse Local 720 v. Insync Show Productions

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INTERNATIONAL ALLIANCE OF No. 12-17200
THEATRICAL STAGE EMPLOYEE AND
MOVING PICTURE TECHNICIANS, D.C. No.
ARTISTS, AND ALLIED CRAFTS OF 2:12-cv-00181-
THE UNITED STATES, IT’S TRUSTEED GMN-PAL
LOCAL 720 LAS VEGAS, NEVADA,
AKA IATSE Local 720,
Plaintiff-Appellee, OPINION
v.
INSYNC SHOW PRODUCTIONS, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief District Judge, Presiding
Argued and Submitted
December 11, 2014—San Francisco, California
Filed September 4, 2015
Before: A. Wallace Tashima and Richard A. Paez, Circuit
Judges, and Frederic Block, Senior District Judge.*
Opinion by Judge Paez
*
The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
2 IATSE V. INSYNC SHOW PRODUCTIONS
SUMMARY**
Labor Law / Arbitration
The panel affirmed the district court’s order granting a
petition to compel arbitration under a collective bargaining
agreement between a union and an employer.
The district court granted the union’s petition and
“stayed” the case. The panel concluded that the district
court’s arbitration order was final under 28 U.S.C. § 1291
because the stay lacked any legal or practical effect under
either the Labor Management Relations Act or the Federal
Arbitration Act. The panel therefore exercised jurisdiction to
review the district court’s order.
Affirming the district court’s order compelling arbitration,
the panel held that it was for the arbitrator to decide whether
the parties’ collective bargaining agreement had expired
when the union sought to invoke the agreement’s grievance
and arbitration procedure, or whether, pursuant to an
“evergreen clause,” the agreement continued in effect.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
IATSE V. INSYNC SHOW PRODUCTIONS 3
COUNSEL
Bryan J. Cohen (argued) and Gregory J. Kamer, Kamer
Zucker Abbott, Las Vegas, Nevada, for Defendant-Appellant.
David A. Rosenfeld (argued) and William A. Sokol,
Weinberg Roger & Rosenfeld, Alameda, California; Kristina
L. Hillman, Weinberg, Roger & Rosenfeld, Los Angeles,
California, for Plaintiff-Appellee.
OPINION
PAEZ, Circuit Judge:
This appeal presents two issues arising from a petition to
compel arbitration under a collective bargaining agreement
between the International Alliance of Theatrical Stage
Employees and Moving Picture Technicians, Artists, and
Allied Crafts of the United States, its Territories and Canada
and its Trusteed Local 720 Las Vegas, Nevada (“IATSE”)
and InSync Show Productions, Inc. (“InSync”). It is
undisputed that IATSE and InSync agreed to a collective
bargaining agreement containing both a grievance and
arbitration procedure and a provision governing the length of
the agreement’s life. After the parties unsuccessfully
negotiated regarding a potential successor agreement, IATSE
filed a petition to compel arbitration in federal court. The
district court granted IATSE’s petition to compel arbitration
pursuant to the parties’ initial agreement and “stayed” the
case. We must decide whether we have jurisdiction over
InSync’s appeal from the order compelling arbitration and, if
so, whether the district court properly compelled arbitration.
We conclude that the district court’s arbitration order was
4 IATSE V. INSYNC SHOW PRODUCTIONS
final under 28 U.S.C. § 1291 because the stay lacked any
legal or practical effect. We therefore exercise jurisdiction to
review the order compelling arbitration, and we affirm.
I. Background
InSync and IATSE entered into a collective bargaining
agreement (the “2003–2007 CBA”) in January 2003. Article
26 of the 2003–2007 CBA, which governs the term of the
agreement, contains an “evergreen clause.” Article 26 stated:
Except as otherwise provided for herein, this
Agreement shall become effective on the 1st
day of January, 2003 and shall continue in full
force and effect to and including December
31st, 2007 and from year to year thereafter.
The Employer agrees to live by the applicable
wages, terms and conditions for additional
projects in the future.
(emphasis added).
Article 15 of the 2003–2007 CBA includes a grievance
and arbitration procedure. That provision defines “a
grievance . . . as a claim or allegation by an employee in the
bargaining unit or by the Union that the Employer has
violated or is violating the provisions of this Agreement.” If
the parties proceed to arbitration, “[t]he arbitrator’s award
shall be based solely upon his interpretation of the meaning
or application of the provisions of this Agreement.”
On October 2, 2007, IATSE informed InSync that IATSE
was interested in changing the terms of the 2003–2007 CBA.
InSync responded on November 10 with a letter, explaining
IATSE V. INSYNC SHOW PRODUCTIONS 5
“that InSync did not intend to renew the [2003–2007 CBA].”
IATSE wrote back on November 15, stating that the National
Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq.,
required the parties to bargain in good faith. IATSE included
a proposed “Extension Agreement,” the “2008–2012 CBA,”
that InSync indicated would “extend the terms of the
2003–2007 [CBA].” InSync did not sign the 2008–2012
CBA. On December 21, 2007, IATSE reminded InSync of
the requirement to bargain in good faith. The record does not
reflect further communication until August 2008.
Between August 22, 2008 and February 11, 2009, InSync
and IATSE corresponded about a possible successor
collective bargaining agreement. On February 11, 2009,
InSync wrote to IATSE, stating that “the parties had reached
impasse in bargaining and InSync reserved the right to
implement any or all of the terms and conditions set forth in
the Company’s [previously sent] December 10, 2008,
proposal.” Shortly thereafter, on February 20, 2009, InSync
sent and invited a response to its “last, best and final offer.”
On March 17 and 18, IATSE sent a counterproposal, and
InSync reiterated its position without accepting that
counterproposal. The parties did not reach an agreement.
On August 2, 2011, IATSE invoked the parties’ grievance
and arbitration procedure and requested a meeting. Two
weeks later, InSync responded that the “parties had bargained
to impasse between 2007 and 2009, no extension agreement
had been signed, and the statute of limitations under Section
10(b) of the [NLRA] barred any legal actions based on the
negotiations during 2007–2009.”
On September 30, 2011, IATSE wrote to InSync,
asserting its position that InSync was bound by provisions in
6 IATSE V. INSYNC SHOW PRODUCTIONS
the 2003–2007 CBA that rendered the proposed 2008–2012
CBA effective. The 2008–2012 CBA had terms “identical”
to those in the 2003–2007 CBA. On October 10, InSync
informed IATSE that it believed that “a refusal to bargain
charge under Section 8(a)(5) [of the NLRA] was time barred,
and a grievance under Article 15 of the collective bargaining
agreement was also time barred.” On October 24, IATSE
responded with a letter, stating that the letter “serve[d] as the
Union’s grievance filed pursuant to Article 15, because the
Employer is violating each and every section of the
Collective Bargaining Agreement . . . insofar as the Employer
is operating on a completely non-union basis and ignoring the
contract completely.” InSync responded on November 2,
reiterating its views on timeliness, and concluding: “The best
I can tell you is do what you have to do.”
On February 2, 2012, IATSE filed a petition to compel
arbitration in the district court. IATSE argued that the
2008–2012 CBA, with terms identical to those in the
2003–2007 CBA, was enforceable as a result of the
2003–2007 CBA’s evergreen clause. InSync responded by
filing a motion to dismiss, or, alternatively, for summary
judgment, on grounds that the NLRA preempted IATSE’s
action and that the district court lacked jurisdiction.
The district court rejected IATSE’s position that the
2008–2012 CBA “binds the parties,” reasoning that such a
position “apparently read out the portion of the Evergreen
Clause that states that the [2003–2007] CBA would continue
in effect ‘from year to year’ after its expiration, not in block
chunks of four-year periods.” Instead, the court considered
the text of the 2003–2007 CBA and declined to “reach the
merits of [InSync’s] argument [that InSync had cancelled the
2003–2007 CBA’s evergreen clause].” The court took no
IATSE V. INSYNC SHOW PRODUCTIONS 7
position on the merits of InSync’s argument and “decide[d]
that because [the] argument requires interpretation of the
[2003–2007] CBA and a determination of whether it was
cancelled, the argument is better left for an arbitrator to
decide pursuant to the arbitration clause and [IATSE]’s
grievance process.” The court granted IATSE’s petition to
compel arbitration, denied InSync’s motion, and ordered “that
this case shall be STAYED pending the completion of
arbitration.”
II. Jurisdiction
A.
We turn first to whether we have jurisdiction to entertain
InSync’s appeal. IATSE argues that appellate jurisdiction
does not exist because the district court’s order compelling
arbitration and staying the case did not constitute a final order
under 28 U.S.C. § 1291. As we explain below, we conclude
that we have jurisdiction and that we may address the merits
of InSync’s appeal.
“Federal courts ‘have only the power that is authorized by
Article III of the Constitution and the statutes enacted by
Congress pursuant thereto.’” Couch v. Telescope Inc.,
611 F.3d 629, 632 (9th Cir. 2010) (quoting Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)).
Generally, this court “ha[s] jurisdiction of appeals from all
final decisions of the district courts of the United States[.]”
28 U.S.C. § 1291. “Appeal gives the upper court a power of
review, not one of intervention. So long as the matter
remains open, unfinished or inconclusive, there may be no
intrusion by appeal.” Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 546 (1949).
8 IATSE V. INSYNC SHOW PRODUCTIONS
Under Goodall-Sanford v. United Textile Workers of
America, A.F.L. Local 1802, 353 U.S. 550 (1957), we have
jurisdiction over InSync’s appeal of the order compelling
arbitration. In Goodall-Sanford, a union brought a suit in
federal district court under § 301(a) of the Labor
Management Relations Act (“LMRA”), 29 U.S.C. § 185(a),
and sought to “compel specific performance of a grievance
arbitration provision of a collective bargaining agreement.”
Goodall-Sanford, 353 U.S. at 550–51. The union sought no
other relief. See id. The district court ordered arbitration,
and on appeal, the First Circuit affirmed. Id. at 551.
Subsequently, the Supreme Court also affirmed. Id. In
affirming, the Court held that appellate jurisdiction existed,
explaining that “[a]rbitration [wa]s not merely a step in
judicial enforcement of a claim nor auxiliary to a main
proceeding, but the full relief sought.” Id. “A decree under
§ 301(a) ordering enforcement of an arbitration provision in
a collective bargaining agreement is, therefore, a ‘final
decision’ within the meaning of 28 U.S.C. § 1291.” Id. at
551–52.
We have held that Goodall-Sanford permits review of
appeals from orders compelling arbitration as the “full relief
sought” in § 301 cases. See United Food & Commercial
Workers Union, Locals 197, 373, 428, 588, 775, 839, 870,
1119, 1179 & 1532 v. Alpha Beta Co., 736 F.2d 1371, 1373
& n.3 (9th Cir. 1984) (citing Goodall-Sanford and stating:
“Because the district court’s granting of a petition to compel
arbitration under a collective bargaining agreement is a final
decision under 28 U.S.C. § 1291 . . . we have jurisdiction
over this appeal”); see also Abernathy v. S. Cal. Edison,
885 F.2d 525, 528 n.13 (9th Cir. 1989) (noting that the
immediate appealability of orders compelling arbitration
under Goodall-Sanford “is inconsistent with the policies
IATSE V. INSYNC SHOW PRODUCTIONS 9
underlying the arbitration process[,]” but explaining that
“until the Supreme Court or Congress acts, the final judgment
cases require such an outcome”).1
Here, the district court reviewed the relevant evergreen
and arbitration provisions, determined that interpretation of
the evergreen clause in the 2003–2007 CBA should be
decided by an arbitrator, and entered an order compelling
arbitration. Notably, the only claim that IATSE alleged in its
petition was that it was entitled to enforcement of the
grievance and arbitration procedure in the 2008–2012 CBA
(with terms identical to those in the 2003–2007 CBA). Thus,
in ordering arbitration, the district court granted the full relief
IATSE sought, see Goodall-Sanford, 353 U.S. at 551–52, and
thereby terminated the litigation. As part of the order, the
court “stayed” the case pending arbitration, but the court did
not explain why it ordered the stay nor specify on what basis
it did so. The entry of the stay, in these circumstances, had
no legal or practical effect. Thus, under Goodall-Sanford, we
have jurisdiction over InSync’s appeal of the order
compelling arbitration.
B.
IATSE also invoked the Federal Arbitration Act (“FAA”),
9 U.S.C. § 1 et seq., as a statutory basis for its petition to
compel arbitration. IATSE argues that the FAA applies to the
parties’ collective bargaining agreement and precludes
appellate jurisdiction because the district court “stayed” this
1
Other circuits confronted with similar facts have reached the same
conclusion. See, e.g., Oil, Chem., & Atomic Workers Int’l Union (AFL-
CIO), Local 5-857, Labor Orgs. v. Conoco, Inc., 241 F.3d 1299, 1302
(10th Cir. 2001) (citing cases from the Second, Third, and Sixth Circuits).
10 IATSE V. INSYNC SHOW PRODUCTIONS
case pending arbitration. See 9 U.S.C. §§ 3, 16(b)(1).2 Under
the FAA, generally, “an appeal may not be taken from an
interlocutory order—(1) granting a stay of any action under
section 3 of this title; . . . .” 9 U.S.C. § 16(b)(1). And under
9 U.S.C. § 3, the district court in any proceeding where an
issue is referable to arbitration under a written agreement
“shall on application of one of the parties stay the trial of the
action until such arbitration has been had in accordance with
the terms of the agreement . . . .”
We need not decide, however, whether the FAA applies
in this case because we have jurisdiction to review the order
compelling arbitration whether we apply the FAA, or the
LMRA as interpreted by Goodall-Sanford.3 Even reviewing
2
The district court did not specify under what authority it issued the
stay. Compare 9 U.S.C. § 3 (“If any suit or proceeding be brought in any
of the courts of the United States upon any issue referable to arbitration
under an agreement in writing for such arbitration, the court . . . shall on
application of one of the parties stay the trial of the action . . . .”) with
Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (noting that “the power to
stay proceedings is incidental to the power inherent in every court to
control the disposition of the causes on its docket with economy of time
and effort for itself, for counsel, and for litigants”).
3
The Tenth Circuit recently held that the FAA could apply to an
arbitration clause in a collective bargaining agreement. See Int’l Bhd. of
Elec. Workers, Local # 111 v. Pub. Serv. Co. of Colo., 773 F.3d 1100,
1105–07 (10th Cir. 2014). Cf. Matthews v. Nat’l Football League Mgmt.
Council, 688 F.3d 1107, 1115 n.7 (9th Cir. 2012) (assuming “[f]or
purposes of . . . discussion” that the FAA would apply “to arbitration of
collective bargaining agreements”); PowerAgent Inc. v. Elec. Data Sys.
Corp., 358 F.3d 1187, 1193 n.1 (9th Cir. 2004) (“Circuit City [Stores, Inc.
v. Adams, 532 U.S. 105 (2001),] did not address a CBA, and we have not
considered . . . its application to such agreements.”).
IATSE V. INSYNC SHOW PRODUCTIONS 11
this case (and the district court’s stay) as strictly a § 301 case,
we properly could look to the FAA for guidance. See United
Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S.
29, 41 n.9 (1987) (“[F]ederal courts have often looked to the
[FAA] for guidance in labor arbitration cases, especially in
the wake of the holding that § 301 . . . empowers the federal
courts to fashion rules of federal common law . . . .”).
Whether we apply the FAA or look to it for guidance, we
would reach the same result as applying the LMRA and
Goodall-Sanford because the petition to compel arbitration
was the only matter before the district court. See Prudential
Ins. Co. of Am. v. Lai, 42 F.3d 1299, 1302 (9th Cir. 1994).
Under 9 U.S.C. § 16(a)(3), an “appeal may be taken from . . .
a final decision with respect to an arbitration that is subject to
this title.”
The Supreme Court interpreted the phrase, “final decision
with respect to an arbitration,” in Green Tree Financial
Corp.-Alabama v. Randolph, 531 U.S. 79, 86–87 (2000).
“[T]he term ‘final decision’ in § 16(a)(3) has the longstanding
meaning of a decision that ‘ends the litigation on the merits
and leaves nothing more for the court to do but execute the
judgment.’” Bushley v. Credit Suisse First Boston, 360 F.3d
1149, 1152 (9th Cir. 2004) (quoting Green Tree, 531 U.S. at
86). In Green Tree, a plaintiff initially had alleged statutory
claims against a lender, after which the lender brought a
motion to compel arbitration as provided in the parties’
written agreement and to dismiss the plaintiff’s claims with
prejudice. 531 U.S. at 83–84. Until that point, the federal
courts had distinguished “independent” proceedings (when “a
request to order arbitration is the sole issue before the court”)
from “embedded” proceedings (“actions involving both a
request for arbitration and other claims for relief”) to
12 IATSE V. INSYNC SHOW PRODUCTIONS
determine whether a “final decision” arose under § 16(a)(3).
Id. at 87. The Supreme Court rejected this distinction as one
at odds with the plain text in § 16(a)(3). See id. at 88–89.
Green Tree ultimately held that “where . . . the District Court
has ordered the parties to proceed to arbitration, and
dismissed all the claims before it, that decision is ‘final’
within the meaning of § 16(a)(3), and therefore appealable.”
Id. at 89. Separately, in a footnote, the Court noted a
distinction not at issue in Green Tree: “Had the District Court
entered a stay instead of a dismissal in this case, that order
would not be appealable.” Id. at 87 n.2 (citing 9 U.S.C.
§ 16(b)(1)).
When the only matter before a district court is a petition
to compel arbitration and the district court grants the petition,
appellate jurisdiction may attach regardless of whether the
district court issues a stay. See Lai, 42 F.3d at 1302. The
limitation on appellate jurisdiction noted in Green Tree’s
footnote 2 does not apply here because in Green Tree, the
lender moved to compel arbitration where the plaintiff had
alleged substantive claims for relief in her complaint. See
Green Tree, 531 U.S. at 83. Before the Supreme Court
decided Green Tree, we had held that: “if the motion to
compel arbitration in a given case is the only claim before the
district court, a decision to compel arbitration is deemed to
dispose of the entire case, and permit appellate review under
9 U.S.C. § 16(a)(3).” Lai, 42 F.3d at 1302.4 Green Tree does
4
See also Am. Int’l Specialty Lines Ins. Co. v. Elec. Data Sys. Corp.,
347 F.3d 665, 668 (7th Cir. 2003) (“Yet we have suggested . . . that if all
the judge is retaining jurisdiction for is to allow the arbitrator’s award to
be confirmed without need for the filing of a separate lawsuit, the order to
arbitrate is final (final enough might be the better way to put it) and
therefore immediately appealable.”); 3M Co. v. Amtex Sec., Inc., 542 F.3d
1193, 1197–98 (8th Cir. 2008) (citing approvingly to Lai, and concluding
IATSE V. INSYNC SHOW PRODUCTIONS 13
not disturb our holding in Lai, and it remains good law today.
See Circuit City Stores, Inc. v. Mantor, 335 F.3d 1101, 1105
(9th Cir. 2003); Interactive Flight Techs., Inc. v. Swissair
Swiss Air Transp. Co., 249 F.3d 1177, 1179 (9th Cir. 2001).5
C.
In sum, following case law under the LMRA or FAA
leads to the same result: a district court presented with a
petition to compel arbitration and no other claims cannot
prevent appellate review of an order compelling arbitration by
issuing a stay. Thus, the order compelling arbitration in this
case is a final decision over which we have jurisdiction. See
28 U.S.C. § 1291.
Because the district court’s order compelling arbitration
is final within the meaning of 28 U.S.C. § 1291, we have
jurisdiction over this appeal, and we need not address
InSync’s alternative theories for jurisdiction under Moses H.
that “when a motion to compel arbitration and a motion for a stay are
brought [in separate district courts in different circuits], they should be
treated individually and the resulting order compelling arbitration is final
and appealable”).
5
Similarly, in Dees v. Billy, 394 F.3d 1290 (9th Cir. 2005), we
distinguished a Fifth Circuit case by explaining: “While the plaintiff in
[the Fifth Circuit case] sought only to obtain an order compelling
arbitration, Dees initiated this suit to recover damages for medical
malpractice, and that claim—although currently stayed—remains before
the trial court.” Id. at 1293 (citing Am. Heritage Life Ins. Co. v. Orr,
294 F.3d 702 (5th Cir. 2002)). Although Dees “h[eld] that a district court
order staying judicial proceedings and compelling arbitration is not
appealable even if accompanied by an administrative closing,” id. at 1294,
it distinguished a case that solely involved a claim to compel arbitration
in a district court, id. at 1292. That distinction is consistent with Lai.
14 IATSE V. INSYNC SHOW PRODUCTIONS
Cone Memorial Hospital v. Mercury Construction Corp.,
460 U.S. 1 (1983), or the collateral order doctrine.6
III. Order Compelling Arbitration
A.
Having determined that we may exercise jurisdiction over
this appeal, we turn to the merits. We review de novo the
district court’s order compelling arbitration. Bushley,
360 F.3d at 1152.
We begin by recognizing some established principles
regarding arbitration of disputes under a collective bargaining
agreement. First, “‘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 Techs., Inc.
v. Commc’ns Workers of Am., 475 U.S. 643, 648 (1986)
(quoting United Steelworkers of Am. v. Warrior & Gulf Nav.
6
Separately, InSync argues that the district court lacked jurisdiction in
this case because IATSE alleged claims within the exclusive jurisdiction
of the National Labor Relations Board. We disagree. “Claims brought
under Section 301(a) of the LMRA may be heard in federal court even if
they allege conduct that is arguably an unfair labor practice.” Int’l Bhd.
of Teamsters, Office Food & Warehouse Local 952 v. Am. Delivery Serv.
Co., 50 F.3d 770, 773–74 (9th Cir. 1995). “Section 301(a) of the LMRA
‘carves out a broad exception to the [National Labor Relations Board]’s
primary jurisdiction for claims arising out of collective bargaining
agreements, whether or not such claims would also be an unfair labor
practice . . . .’” Id. at 774 (citation omitted). IATSE claimed that InSync
violated the parties’ collective bargaining agreement and invoked § 301
of the LMRA as authority for the petition to compel arbitration under the
agreement. The district court had jurisdiction over that proceeding. See
LAWI/CSA Consolidators, Inc. v. Wholesale & Retail Food Distribution,
Teamsters Local 63, 849 F.2d 1236, 1238 n.1 (9th Cir. 1988).
IATSE V. INSYNC SHOW PRODUCTIONS 15
Co., 363 U.S. 574, 582 (1960)); Litton Fin. Printing Div. v.
NLRB, 501 U.S. 190, 200–01 (1991). And “except where ‘the
parties clearly and unmistakably provide otherwise,’ it is ‘the
court’s duty to interpret the agreement and to determine
whether the parties intended to arbitrate grievances
concerning’ a particular matter.” Granite Rock Co. v. Int’l
Bhd. of Teamsters, 561 U.S. 287, 301 (2010) (citation
omitted) (quoting AT & T Techs., 475 U.S. at 649, 651).
Further,
where the contract contains an arbitration
clause, there is a presumption of arbitrability
in the sense that “[a]n order to arbitrate the
particular grievance should not be denied
unless it may be said with positive assurance
that the arbitration clause is not susceptible of
an interpretation that covers the asserted
dispute. Doubts should be resolved in favor
of coverage.”
AT & T Techs., 475 U.S. at 650 (quoting Warrior & Gulf,
363 U.S. at 582–83).
Brotherhood of Teamsters & Auto Truck Drivers Local
No. 70 v. Interstate Distributor Co., 832 F.2d 507 (9th Cir.
1987), governs our approach to InSync’s appeal. Interstate
Distributor explained how to approach a case in which the
parties to a collective bargaining agreement disagree about
“the proper meaning or interpretation of [a] termination
clause[ in their agreement,]” and whether an arbitrator
“should decide that question[.]” Id. at 510. There, the parties
“agree[d] that they entered into an agreement containing an
arbitration clause,” did not dispute “the scope of the
arbitration clause,” and “point[ed] to no language purporting
16 IATSE V. INSYNC SHOW PRODUCTIONS
to exclude termination disputes from the scope of the
arbitration clause, nor to any ambiguity or uncertainty in that
clause.” Id. at 510–11. Interstate Distributor held “that
where a dispute exists over whether a contract with an
arbitration clause has expired or been terminated, the proper
initial inquiry for the court is whether the arbitration clause
covers such disputes, not whether the termination clause
means what [either party] says it means.” Id. at 511. In such
a case, “the real question [about the termination clause’s
meaning or interpretation] is one step removed from the
issue of substantive arbitrability discussed in AT & T
Technologies.” Id. at 510.
Here, Article 26 of the 2003–2007 CBA sets out the term
of the agreement and includes the evergreen clause,
providing, in part, that the 2003–2007 CBA “shall continue
in full force and effect to and including December 31st, 2007
and from year to year thereafter.” (emphasis added).
IATSE’s claims that InSync violated provisions of the
2003–2007 CBA require interpretation of the evergreen
clause to determine whether the CBA was enforceable
between the parties. And InSync does not argue that, under
the 2003–2007 CBA, interpreting the evergreen clause falls
outside the scope of the arbitration provision. See Interstate
Distrib., 832 F.2d at 510–11. Thus, this case is analogous to
Interstate Distributor.
B.
The 2003–2007 CBA arbitration provision is similar in
scope to the arbitration agreements in Interstate Distributor
and Camping Construction Co. v. District Council of Iron
Workers, 915 F.2d 1333 (9th Cir. 1990). Moreover, the
provision covers a dispute between IATSE and InSync—
IATSE V. INSYNC SHOW PRODUCTIONS 17
whether the CBA has expired or been terminated—that must
be decided before addressing the parties’ underlying dispute.
See Interstate Distrib., 832 F.2d at 511; Camping, 915 F.2d
at 1338.
Camping applied Interstate Distributor’s rule that “‘when
the collective bargaining agreement contains a customary
arbitration clause acts of repudiation and other acts of
termination must be submitted to arbitration.’” Camping,
915 F.2d at 1338 (quoting Interstate Distrib., 832 F.2d at 511
n.4). Camping guides our determination of whether the
2003–2007 CBA arbitration provision was “of the type
referred to in Interstate Distributor.” Id. If the provision is
similar in scope to that of Interstate Distributor, then “the
dispute is arbitrable, and the arbitrator rather than the court
must examine the facts, construe the termination provision of
the contract, and decide whether the contract has in fact been
terminated.” Id.
The 2003–2007 CBA arbitration provision’s text is
similar in scope to that of Interstate Distributor and Camping.
In Camping, we explained that “an agreement to arbitrate
‘any differences that may arise regarding the meaning and
enforcement of this Agreement,’ or any other broad arbitration
clause, such as ‘any dispute arising out of this Agreement,’
ordinarily requires us to hold that the parties have provided
for arbitration of disputes regarding termination[.]” Id. at
1338–39 (emphasis added) (footnote omitted); see also
McKinney v. Emery Air Freight Corp., 954 F.2d 590, 593 (9th
Cir. 1992) (applying Interstate Distrib. and Camping to an
agreement covering “[a]ny grievance or controversy affecting
the mutual relations of the Employer and the Union” and
holding that a dispute over whether a labor contract continued
to exist after merger was subject to arbitration). And here,
18 IATSE V. INSYNC SHOW PRODUCTIONS
the 2003–2007 CBA arbitration provision applies to “a claim
or allegation by an employee in the bargaining unit or by the
Union that the Employer has violated or is violating the
provisions of th[e] Agreement.” “The arbitrator’s award shall
be based solely upon his interpretation of the meaning or
application of the provisions of this Agreement.” The
arbitration provision does not except any particular type of
claim or allegation. See Interstate Distrib., 832 F.2d at
510–11.
Further, Camping explained that the Interstate Distributor
rule “applies whether the dispute between the parties is solely
over termination or repudiation, or whether, as [in Camping],
their disagreement over that question is a threshold issue that
must be resolved before the underlying dispute can be
reached.” Camping, 915 F.2d at 1338. And claims or
allegations, like IATSE’s here, that InSync violated
provisions of the 2003–2007 CBA require, as “a threshold”
determination, the interpretation of the CBA’s Article 26 to
determine whether the CBA was enforceable between the
parties. See id. Thus, the parties’ dispute falls within the
scope of the 2003–2007 CBA arbitration provision and is
subject to arbitration.7
7
Because the scope of the arbitration provision broadly covers claims
or allegations of employer violations of the agreement, this case is not one
in which the arbitration provision’s scope is too narrow to “‘clearly and
unmistakably’ leave questions of arbitrability for determination by the
arbitrator,” LAWI/CSA Consolidators, 849 F.2d at 1239 (quoting AT & T
Techs., 475 U.S. at 649). Nor is it one in which an arbitration provision
limits “arbitrable disputes to those involving ‘application of’ the [parties’
agreement],” and in which resolving a dispute “does not require the
interpretation or construction, i.e., ‘application’, of any substantive
provisions of the [parties’ agreement],” N. Cal. Newspaper Guild Local
52 v. Sacramento Union, 856 F.2d 1381, 1383 (9th Cir. 1988).
IATSE V. INSYNC SHOW PRODUCTIONS 19
InSync’s argument that Litton, 501 U.S. 190, compels
reversal is unavailing. Indeed, that case is inapposite. Litton
involved “whether a dispute over layoffs which occurred well
after expiration of a collective-bargaining agreement must be
said to arise under the agreement despite its expiration.” Id.
at 193 (emphases added). There, the parties did not dispute
that the agreement had expired. See id. at 193, 200–01. In
fact, the Supreme Court acknowledged that “a collective-
bargaining agreement might be drafted so as to eliminate any
hiatus between expiration of the old and execution of the new
agreement, or to remain in effect until the parties bargain to
impasse.” Id. at 201 (footnote omitted). Litton is
inapplicable when the parties dispute the effect of an
evergreen clause in their collective bargaining agreement on
the issue of whether the agreement has expired or been
terminated. Whether the 2003–2007 CBA has expired or
been terminated, therefore, is for an arbitrator, not the court,
to decide.8
In effect, what InSync urges this court to decide—
whether the 2003–2007 CBA had expired when IATSE
sought to invoke the grievance and arbitration procedure—is
for an arbitrator. In attempting to distinguish Interstate
8
InSync also argues that IATSE “repudiated the 2003–2007 CBA” in
proceedings before the district court and should be “estopped from
asserting that [the 2003–2007 CBA] is still in effect . . . .” But InSync did
not raise this estoppel issue before the district court. And the
circumstances do not justify exercising our discretion to address it for the
first time on appeal as an issue of law. See A-1 Ambulance Serv., Inc. v.
Cnty. of Monterey, 90 F.3d 333, 338–39 (9th Cir. 1996), as amended on
denial of reh’g and reh’g en banc (July 31, 1996); Local Union No. 370
of Int’l Union of Operating Eng’rs v. Morrison-Knudsen Co., 786 F.2d
1356, 1358 (9th Cir. 1986) (per curiam). Thus, InSync has waived this
issue and we decline to address it.
20 IATSE V. INSYNC SHOW PRODUCTIONS
Distributor and Camping, InSync argues that the 2003–2007
CBA had expired and that the parties reached impasse in
“attempting to negotiate the terms of a successor agreement.”
But “once it is found that a contract did exist at some time,
the questions of whether that contract has expired, or has
been terminated or repudiated, may well present arbitrable
issues, depending on the language of the agreed-upon
arbitration clause.” Camping, 915 F.2d at 1340.9 Article 26
of the 2003–2007 CBA contains an evergreen clause. Given
the scope of the arbitration provision and the nature of the
parties’ dispute, as previously discussed, the arbitrator and
not the district court must consider IATSE and InSync’s
competing interpretations of the evergreen clause and decide
whether the 2003–2007 CBA expired or was terminated. We
therefore affirm the district court’s order compelling
arbitration.10
9
Because this appeal involves the parties’ dispute relating to expiration
or termination of their CBA, cases involving contract formation and
disputes regarding the scope of an arbitration provision are distinct. See
Camping, 915 F.2d at 1340; see also Granite Rock, 561 U.S. at 299
(“[O]ur precedents hold that courts should order arbitration of a dispute
only where the court is satisfied that neither the formation of the parties’
arbitration agreement nor (absent a valid provision specifically
committing such disputes to an arbitrator) its enforceability or
applicability to the dispute is in issue.”); Unite Here Local 217 v. Sage
Hospitality Res., 642 F.3d 255, 262 n.6 (1st Cir. 2011) (distinguishing
disputes involving the arbitrability of contract duration from those
involving contract formation, and arbitration clause language of “aris[ing]
under [a contract]” from language of “dispute[s] over [a contract’s]
interpretation or application”).
10
InSync argues that IATSE’s claim was untimely under 29 U.S.C.
§ 160(b). This argument is without merit. IATSE filed its petition within
six months of InSync communicating “an unequivocal, express rejection”
of IATSE’s request for arbitration. See Local Joint Exec. Bd. of Las
Vegas, Bartenders Union Local 165, Culinary Workers’ Local Union No.
IATSE V. INSYNC SHOW PRODUCTIONS 21
IV. Conclusion
For the reasons discussed above, we exercise jurisdiction
over the district court’s order granting IATSE’s motion to
compel arbitration, and we affirm.
AFFIRMED.
226 v. Exber, Inc., 994 F.2d 674, 675–76 (9th Cir. 1993); Teamster Union
Local 315 v. Great Western Chemical Co., 781 F.2d 764, 769 (9th
Cir.1986). Alternatively, InSync argues in its reply brief that IATSE’s
grievance was filed outside the time limit specified in the 2003–2007 CBA
and, therefore, is contractually time-barred. Because InSync failed to raise
this issue until its reply brief and “[t]he issue has not been fully explored,”
Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990), InSync has
waived the issue and we decline to address it.