District No. 1, Pacific Coast District, Marine Engineers' Beneficial Ass'n v. Liberty Maritime Corp.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 13, 2015 Decided February 26, 2016
No. 14–7162
DISTRICT NO. 1, PACIFIC COAST DISTRICT,
MARINE ENGINEERS’ BENEFICIAL ASSOCIATION, AFL-CIO,
APPELLEE
v.
LIBERTY MARITIME CORPORATION,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-01795)
William G. Miossi argued the cause for the appellant.
Mary M. Lenahan was with him on brief.
David M. Glanstein and Michael J. Barta were on brief for
the amicus curiae American Maritime Officers in support of
the appellant.
Mark J. Murphy argued the cause and was on brief for the
appellee.
Before: HENDERSON and TATEL, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Liberty
Maritime Corporation (Liberty) appeals a district court order
compelling it to arbitrate its ongoing labor dispute with District
No. 1, Pacific Coast District, Marine Engineers’ Beneficial
Association, AFL-CIO (MEBA or the Union). For years,
Liberty and MEBA were parties to successive collective
bargaining agreements (CBAs) under which Liberty
exclusively employed MEBA members as supervisory
personnel on several of its bulk-carrier ships. The parties’
relationship eventually soured, leading Liberty to replace its
MEBA member-employees with those who belonged to a rival
union. MEBA asserts that Liberty violated the parties’ CBA
in doing so. In response, Liberty claims that the parties’ CBA
had already expired before it switched unions. The parties’
dispute thus boiled down to a principal inquiry: When did
their CBA expire?
The district court determined that under the CBA, this
question had to be submitted to arbitration; it therefore granted
MEBA’s request for an order compelling Liberty to arbitrate.
See Dist. No. 1, Pac. Coast Dist., Marine Eng’rs’ Beneficial
Ass’n, AFL-CIO v. Liberty Mar. Corp., 70 F. Supp. 3d 327, 350
(D.D.C. 2014). On appeal, Liberty claims that the court erred
in doing so. As a threshold matter, it claims that the court
lacked subject matter jurisdiction over MEBA’s suit. On the
merits, it argues that the contract-duration question is not
arbitrable; it maintains that the court, not an arbitrator, must
decide when the CBA expired. We believe Liberty is wrong
on both counts and, accordingly, affirm the district court.
3
I.
Liberty is a maritime shipping company with a fleet of
vessels engaged in global trade. For over two decades,
Liberty had a series of CBAs with MEBA, a union
representing, inter alia, officers and engineers working in the
United States maritime industry, both at ports and on
ocean-going vessels. The most recent was slated to expire in
June 2010. Negotiations over a successor CBA stalled and,
on August 25, 2010, Liberty and MEBA signed a
Memorandum of Understanding (MOU) extending the CBA to
September 30, 2011. 1 Specifically, the MOU provided that
the then-current CBA, along with the provisions of the MOU
itself, constituted a “New Agreement.”
Three provisions of the New Agreement are relevant.
First, like its predecessors, the New Agreement provided that
Liberty could employ only MEBA-represented engineers as
supervisory personnel 2 aboard certain vessels. Second, the
New Agreement included a grievance-and-arbitration
provision establishing a detailed procedure to address disputes
arising between Liberty and MEBA. Specifically, it required
1
Although the CBA was to expire on June 15, 2010, it
remained in effect per its terms until the MOU was signed, at which
point the MOU applied retroactively to July 1, 2010. Thus, at no
time from June 15 to August 25, 2010 did the CBA between Liberty
and MEBA lapse.
2
Under the most recent CBA, carried over into the New
Agreement, the Liberty personnel to whom the agreement was
applicable were deemed supervisors. As the district court noted,
this meant that the protections of the National Labor Relations Act,
29 U.S.C. §§ 151 et seq., did not generally apply to them; they could,
however, secure and enforce terms and conditions of employment
through a CBA, which is what they did here. See Liberty Mar., 70
F. Supp. 3d at 334 n.2.
4
that “[a]ll disputes relating to the interpretation or performance
of this Agreement shall be determined” by an arbitration board
consisting of two MEBA representatives and two Liberty
representatives. District No. 1, Pacific Coast District,
M.E.B.A., Tanker Agreement § 2, at 10 (1986–1990) (Tanker
Agreement) (emphasis added). 3 In the event the board could
not resolve the grievance by mutual agreement or majority
vote, an agreed-upon arbitrator was authorized to render a
final, binding decision. Third, and most relevant, the New
Agreement included a “Duration of Agreement” provision as
follows:
[The New Agreement will] continue in full
force and effect until midnight, September 30,
2011 and shall continue from year to year
thereafter unless either the Company or the
Union shall give written notice to the other of
its desire to amend the agreement, which shall
be given at least sixty (60) days, but no sooner
than ninety (90) days, prior to the expiration
date. In the event either the Company or the
Union serves notice to amend the Agreement,
the terms of the Agreement in effect at that time
of the notice to amend shall continue in effect
until mutual agreement on the proposed
amendments or an impasse has been reached.
Mem. of Understanding (MOU) § 1 (emphases added).
3
Both the exclusivity and grievance-and-arbitration
provisions were incorporated into the New Agreement by reference
to the original CBA. Both parties submitted the 1986–1990
“Tanker Agreement” to the district court to establish the CBA’s
governing provisions, and we assume the provisions included therein
were those applicable in 2010.
5
In March 2011, the parties began negotiating a successor
to the New Agreement. Liberty’s primary issue was the
Union’s pension plan. MEBA operated under a defined-
benefit plan but Liberty insisted that the Union shift to a
defined-contribution plan—a change MEBA opposed.
Several work-rule changes were also on the table. On July 5,
2011, Liberty notified MEBA that it intended to terminate the
CBA on September 30, 2011, 4 and on July 8, MEBA
responded by giving Liberty notice to amend, consistent with
the Duration of Agreement provision. With MEBA’s notice
to amend, the New Agreement’s expiration at midnight on
September 30, 2011 then became contingent on the parties
reaching “impasse” before that date. 5 See MOU § 1.
4
Counsel for Liberty acknowledged at oral argument that,
although the New Agreement did not contain a “notice of
termination” provision, Liberty considered its notice of termination
to fall within the “notice to amend” language in the MOU. See Oral
Arg. Recording at 18:55–19:13.
5
Although Liberty’s answer denied MEBA’s allegation that
“[b]ased upon the Union’s timely notice to amend, the terms of the
Agreement in effect at the time of the Notice continue to remain in
effect pursuant to the terms of the parties’ MOU,” Answer ¶ 15,
neither party seriously disputes that the contract’s expiration at
midnight on September 30 was contingent upon impasse. Rather,
counsel for Liberty acknowledged that “[t]he durational language
does contain reference to impasse; that’s why . . . we believe the
parties were at a bargaining impasse and no longer able to agree, thus
the expiration on September 30.” Oral Arg. Recording at 13:52–
14:07. Moreover, Liberty maintains that the contract remained in
effect until midnight on September 30 at the earliest; that is, even if
the parties reached impasse before September 30, the contract did
not expire until then. See Oral Arg. Recording at 14:09–14:22 (“We
could not assert the contract expired September 27 because the
durational clause . . . carried out [until] the end of the month.”).
6
Whether Liberty and MEBA in fact reached impasse
before September 30, 2011 is the underlying dispute in this
case; Liberty claims they did and MEBA claims they did not.
The dispute arises from a flurry of last-minute negotiations in
the four days leading up to September 30. On September 27,
MEBA told Liberty it was not able to accept the
defined-contribution pension plan Liberty demanded. Liberty
expressed its regret that the parties were unable to reach a deal
and began taking steps to bring on another union, the American
Maritime Officers (AMO), to fill the MEBA positions
beginning at 12:01a.m. on October 1. On September 28,
however, MEBA reversed course; its president first contacted
Liberty’s CEO by phone and then confirmed in writing that
MEBA would accept the defined-contribution plan Liberty had
proposed and invited Liberty back to the negotiating table to
work out the remaining issues. On September 29, citing a lack
of confidence in MEBA, Liberty rejected the invitation and
maintained that the New Agreement was set to expire at
midnight the following day, September 30, in accordance with
its terms.
Early on September 30, MEBA submitted a formal
grievance to Liberty, using the grievance-and-arbitration
procedure set out in the New Agreement. The grievance
alleged that Liberty had violated the New Agreement in three
ways: (1) by “failing and refusing to recognize MEBA as the
sole representative of its licensed engineers and deck officers”;
(2) by ordering “duly authorized representatives of the MEBA
illegally removed from the Company vessels”; and (3) by
authorizing “the assignment of the customary work and
supervisory jurisdiction of the officers to be performed by
other non-vessel and non-union personnel.” Ltr. from Bill
Van Loo, MEBA Sec’y-Treasurer, to Philip Shapiro, Liberty
President & CEO 1–2 (Sept. 30, 2011). In its grievance,
MEBA demanded that Liberty cease and desist from these
7
actions. Liberty did not immediately respond; rather, that
afternoon, its CEO notified its supervisory personnel that
MEBA and Liberty “were unable to agree on terms for a new
. . . labor agreement.” Ltr. from Philip Shapiro, Liberty
President & CEO, to Liberty Officers 1–2 (Sept. 30, 2011).
At 12:01a.m. on October 1, 2011, MEBA members left
Liberty’s vessels and AMO members came on board.
MEBA subsequently filed additional grievances related to
the New Agreement, which grievances Liberty refused to
arbitrate; MEBA then filed this action to compel Liberty to do
so. The district court granted MEBA’s motion for summary
judgment, holding, first, that it had jurisdiction to hear the suit,
and second, that the question of impasse was arbitrable under
the New Agreement’s broad arbitration provision. See
Liberty Mar., 70 F. Supp. 3d at 350 (“This Court concludes that
it properly may exercise subject matter jurisdiction over
MEBA’s claims because they arise under section 301 of the
LMRA. Moreover, whether the parties’ CBA was still in
place at the time of all of the alleged violations is a question
that arises under the durational provision of the contract, and is
therefore a question for the arbitrator to decide.”). Liberty
timely appealed.
II.
“We review a grant of summary judgment de novo.”
Hairston v. Vance-Cooks, 773 F.3d 266, 271 (D.C. Cir. 2014).
“Summary judgment will be granted when ‘there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’ ” Id. (quoting FED. R. CIV. P.
56(a)). On appeal, Liberty contends that MEBA was not
entitled to judgment as a matter of law on the issue of
arbitrability. Before reaching that issue, however, we must
8
address Liberty’s challenge to the district court’s jurisdiction to
compel arbitration in the first place.
A. Subject Matter Jurisdiction
The National Labor Relations Act of 1935 (NLRA), 29
U.S.C. §§ 151–169, establishes a federal regime for managing
labor relations and generally authorizes the National Labor
Relations Board (NLRB) to resolve disputes between labor
organizations and employers. See generally Vaca v. Sipes,
386 U.S. 171, 178–79 (1967). The United States Supreme
Court has held that the NLRB’s jurisdiction is in general
exclusive; that is, if a claim falls within the purview of the
NLRB, state and federal courts are preempted from hearing it.
See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236,
245 (1959). As the Court put it, “[w]hen an activity is
arguably subject to § 7 or § 8 of the [NLRA], the States as well
as the federal courts must defer to the exclusive competence of
the [NLRB].” Id. This rule is referred to as “Garmon
preemption.” Wash. Serv. Contractors Coal. v. District of
Columbia, 54 F.3d 811, 815 (D.C. Cir. 1995).
The Labor Management Relations Act of 1947 (LMRA),
29 U.S.C. §§ 141 et seq., “carve[s] out” an exception to the
NLRB’s “exclusive jurisdiction.” Vaca, 386 U.S. at 179.
Specifically, section 301(a) of the LMRA grants a federal
district court jurisdiction over “[s]uits for violations of
contracts between an employer and a labor organization.” 29
U.S.C. § 185(a) (emphasis added). Thus, if a labor dispute is
contractual, Garmon preemption does not apply; instead, the
aggrieved party can sue on the contract in federal court.
Some claims, however, can be both contractual and
representational; that is, a claim that alleges that conduct
violates a collective bargaining agreement and also constitutes
an unfair labor practice or otherwise violates the NLRA.
9
Instead of forcing courts to shoehorn a hybrid claim into one
category or the other, the Supreme Court has held that they
retain jurisdiction to hear a contractual claim even if the claim
is also representational. William E. Arnold Co. v. Carpenters
Dist. Council, 417 U.S. 12, 16 (1974) (“When [conduct
allegedly subject to the NLRA] also constitutes a breach of a
collective-bargaining agreement, the [NLRB’s] authority ‘is
not exclusive and does not destroy the jurisdiction of the courts
in suits under § 301 [of the LMRA].’ ” (quoting Smith v.
Evening News Ass’n, 371 U.S. 195, 197 (1962))). In that
event, the “labor case [falls] within the concurrent jurisdiction
of the NLRB and the federal courts.” Mack Trucks, Inc. v.
Int’l Union, UAW, 856 F.2d 579, 585 (3d Cir. 1988); accord
Mullins v. Kaiser Steel Corp., 642 F.2d 1302, 1316 (D.C. Cir.
1980) (“[F]ederal courts have independent jurisdiction to
decide cases alleging the breach of collective bargaining
agreements, even though that very breach may also be an
unfair labor practice.”), rev’d on other grounds, 455 U.S. 72
(1982).
In many circuits, a party’s mere assertion that a claim is
contractual is not an automatic ticket to federal court; rather,
the court must “examin[e] the major issues to be decided” and
determine “whether they can be characterized as primarily
representational or primarily contractual.” Local Union 204,
Int’l Bhd. of Elec. Workers v. Iowa Elec. Light & Power Co.,
668 F.2d 413, 419 (8th Cir. 1982); accord, e.g., Paper,
Allied-Indus., Chem. & Energy Workers Int’l Union v. Air
Prods. & Chems., Inc., 300 F.3d 667, 675 (6th Cir. 2002)
(“simply referring to the claim as a ‘breach of contract’ [is]
insufficient for purposes of § 301 federal courts’ jurisdiction”;
instead test is whether claim is “primarily representational”);
Pace v. Honolulu Disposal Serv., Inc., 227 F.3d 1150, 1156
(9th Cir. 2000) (“[An] end run around [the NLRA] . . . under
the guise of contract interpretation . . . cannot be countenanced,
10
and we have drawn the jurisdictional line by asking whether
the major issues to be decided . . . can be characterized as
primarily representational or primarily contractual.” (internal
quotation marks and citations omitted) (ellipses in original));
United Food & Commercial Workers Union, Local 400 v.
Shoppers Food Warehouse Corp., 35 F.3d 958, 961 (4th Cir.
1994) (court is without jurisdiction if “a dispute is so primarily
representational, that it falls solely within the Board’s
jurisdiction” (internal quotation marks omitted)); Copps Food
Ctr., Inc. v. United Food & Commercial Workers Union, Local
73-A, No. 90-1905, 1991 WL 135508, at *2 (7th Cir. 1991)
(unpublished) (“In answering the question of whether the
federal court has jurisdiction to hear a contract-based dispute
between a union and an employer, the court generally has to
employ a difficult process of determining whether a particular
dispute is primarily contractual—hence suited for § 301
federal court jurisdiction—or representational, requiring
preliminary NLRB determination of the matter.”); see Trs. of
Colo. Statewide Iron Workers (ERECTOR) Joint
Apprenticeship & Training Trust Fund v. A & P Steel, Inc.,
812 F.2d 1518, 1526 (10th Cir. 1987). If the court decides
that the dispute is “primarily representational” even if framed
as a breach of contract, the court defers to the NLRB’s
exclusive jurisdiction. See, e.g., Int’l Bhd. of Elec. Workers,
Local 71 v. Trafftech, Inc., 461 F.3d 690, 695–97 (6th Cir.
2006).
Although we have not decided the parameters of a claim
that is “primarily representational” as opposed to “primarily
contractual,” several of our sister circuits have done so. The
Sixth Circuit has “identified two scenarios in which a dispute
will be treated as ‘primarily representational.’ ” DiPonio
Constr. Co., Inc. v. Int’l Union of Bricklayers & Allied
Craftworkers, Local 9, 687 F.3d 744, 750 (6th Cir. 2012)
(quoting Trafftech, 461 F.3d at 695). The first occurs if the
11
NLRB “has already exercised jurisdiction over [the] matter and
is either considering . . . or has already decided” the claim. Id.
(quoting Trafftech, 461 F.3d at 695); see also Int’l Bhd. of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers &
Helpers, AFL-CIO v. Olympic Plating Indus., Inc., 870 F.2d
1085, 1089 (6th Cir. 1989) (“In such cases where the Board’s
resolution of non-contractual issues could also resolve the
controversial breach of contract claims brought under § 301,
the federal courts should decline to exercise jurisdiction over
the contractual allegations.”). The second is “where the issue
is an initial decision in the representation area,” DiPonio, 687
F.3d at 750 (quoting Trafftech, 461 F.3d at 695); for example,
where the court must decide whether the union was properly
elected by the employees, id. (citing Amalgamated Clothing &
Textile Workers Union v. Facetglas, Inc., 845 F.2d 1250, 1253
(4th Cir. 1988)). At least one circuit contemplates a third
scenario: a case in which the “center of the dispute” is a
representational question, such as whether workers are
“employees” or “supervisors” under the NLRA, but the NLRB
has not yet taken up “the representation question at issue.”
Morello v. Fed. Barge Lines, Inc., 746 F.2d 1347, 1349–50
(8th Cir. 1984) (internal quotation marks omitted).
Here, MEBA asserts that the district court’s jurisdiction
arises under section 301 of the LMRA. It argues that Liberty
violated the parties’ CBA and that its suit alleges a “violation
of [the] contract[]” as section 301 requires. See 29 U.S.C.
§ 185(a). Liberty challenged that assertion in district court
and does so again on appeal. Although somewhat garbled,
Liberty’s argument that the court lacks jurisdiction under
section 301—or, at the very least, lacks jurisdiction unless the
court determines the disputed impasse question—appears to be
two-fold.
12
First, Liberty claims the existence of impasse vel non is a
jurisdictional fact. As Liberty apparently sees it, if the parties
did not reach impasse, the court had jurisdiction of the claim
under section 301 6 but, if the parties did reach impasse, the
court did not. 7 Liberty faults the district court for construing
its jurisdictional challenge as a facial attack and for assuming
MEBA’s view that impasse was not reached in determining its
jurisdiction under section 301; according to Liberty, the district
court should have first resolved whether or not impasse
occurred, a fact it dubs “jurisdictional.” If the court had
6
Liberty admits it employed AMO-represented officers and
engineers beginning at 12:01a.m. on October 1, 2011. If the parties’
CBA remained in effect past midnight on September 30, as MEBA
contends, there can be no question that MEBA’s suit would be for a
violation of the contract and the court would have jurisdiction under
section 301.
7
Liberty starts with the premise that a court cannot exercise
section 301 jurisdiction of a claim arising from conduct that took
place after the contract expired. See, e.g., Derrico v. Sheehan
Emergency Hosp., 844 F.2d 22, 25 (2d Cir. 1988) (“When a
complaint alleges a claim based on events occurring after the
expiration of a collective bargaining agreement, courts have held that
section 301 cannot provide a basis for jurisdiction.”). Liberty
maintains that it abided by the contract until midnight on September
30 and that the conduct MEBA complains of and seeks to arbitrate in
this suit—namely, Liberty’s replacing MEBA workers with AMO
workers—occurred after that time. In Liberty’s view, if the parties
reached impasse before September 30, then (1) the contract expired
at midnight; (2) the conduct MEBA seeks to arbitrate occurred after
the contract expired; and therefore (3) the court cannot exercise
jurisdiction over the “contractual” claim because it did not in fact
arise under the parties’ contract at all. Thus, Liberty concludes, for
the court to determine if it has section 301 jurisdiction, it must
necessarily determine whether the parties reached impasse.
13
resolved the question in Liberty’s favor (that is, impasse
occurred), then the court would have been obligated to dismiss
the case for lack of jurisdiction. Although a court must
generally resolve a disputed jurisdictional fact if a so-called
factual attack on the court’s subject matter jurisdiction is made,
see, e.g., Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197
(D.C. Cir. 1992), impasse vel non is not a jurisdictional fact.
Section 301 of the LMRA grants the district court jurisdiction
of “[s]uits for violation of contracts between an employer and a
labor organization.” 29 U.S.C. § 185(a). For a district court
to exercise jurisdiction, then, there need not be a valid contract
but only a suit for violation of a contract. The existence of the
contract is instead an element of the cause of action. See
Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1005–06 (6th Cir.
2009) (section 301’s “contract requirement is
non-jurisdictional” and instead constitutes “an element of a
cause of action”); Pittsburgh Mack Sales & Serv., Inc. v. Int’l
Union of Operating Eng’rs, Local Union No. 66, 580 F.3d 185,
189 (3d Cir. 2009) (“It is unnecessary for us to resolve whether
or not the CBAs were terminated [before the alleged breach]
because . . . the existence of a contract is not a jurisdictional
element of a section 301 claim.”). See generally Arbaugh v.
Y & H Corp., 546 U.S. 500 (2006) (court must determine
whether statutory requirement is jurisdictional or instead
describes elements of cause of action).
Second, Liberty attempts to argue that even if MEBA’s
suit is nominally contractual, it is in fact “primarily
representational” because MEBA’s goal in bringing the suit is
to replace AMO as the bargaining representative of the officers
and engineers aboard Liberty vessels. According to Liberty,
“MEBA’s objective in this case is to displace its rival union . . .
and establish MEBA’s representational rights over the
supervisors working aboard Liberty’s ships”—action that
14
violates section 8 of the NLRA and thus triggers the NLRB’s
jurisdiction. Appellant’s Br. at 34.
Liberty relies on the Eighth Circuit’s opinion in Morello v.
Federal Barge Lines, Inc. to support its argument. 746 F.2d
1347. There, two employers had CBAs with one union, which
CBAs were set to expire on a date certain provided one party
notified the other of its intent to terminate. Id. at 1348. The
employers provided the required termination notice and the
union responded by attempting to begin negotiations. Id.
The employers ignored the union on the ground that they had
no duty to negotiate because the union members were
“supervisors” rather than “employees” under the CBAs’ terms.
Id. The union sued, alleging that the employers had breached
the CBAs by refusing to negotiate; specifically, it argued that
the employers did in fact have a duty to negotiate because the
union members were employees, not supervisors. Id. at
1348–49. Although the case was not pending before the
NLRB, the Eighth Circuit held that the question at the center of
the dispute was whether the union members were supervisors
or employees—and that question was “one of representation,”
not contract. Id. at 1349. Accordingly, it held that the
district court lacked jurisdiction. Id. at 1351.
Liberty claims that here, as in Morello, the center of the
dispute is a representational question—which union, MEBA or
AMO, has the right to represent Liberty’s supervisors.
According to Liberty, the court “cannot reach the central issues
in MEBA’s complaint and grant relief without coercing
Liberty to accept MEBA-represented supervisors.”
Appellant’s Br. at 39. Because such relief involves a
“representational issue” and would, according to Liberty,
violate the NLRA, Liberty argues that the claim is “primarily
representational.”
15
We disagree. Liberty’s argument on this point suffers
from a fatal flaw: it conflates the type of claim with the effect
of a claim’s enforcement. Garmon preemption is designed to
prevent a court from deciding a claim that can only be
characterized as representational; to resolve such a claim, a
court must decide a representational question. Morello is a
perfect example. To resolve the dispute, the court would have
had to decide whether certain individuals were “employees” or
“supervisors” under the NLRA. Morello, 746 F.2d at 1349.
The court correctly ruled that, even if framed as a “contractual”
dispute, that question is one squarely within the NLRB’s
province. See id.
On the other hand, resolving MEBA’s suit requires
deciding plainly contractual matters—what constitutes
“impasse” and whether Liberty’s conduct breached the parties’
agreement. The decision may ultimately have a
representational effect in that MEBA could, under the terms of
the contract, be reinstated as the representative of Liberty’s
officers and engineers. But that effect results from the
enforcement of the CBA, not from the resolution of any
representational question. Thus, Morello offers Liberty little
support.
Moreover, MEBA’s suit does not fit into the other two
categories of “primarily representational” claims recognized
by other circuits. The case is not currently pending before the
NLRB, see DiPonio, 687 F.3d at 750; in fact, the opposite is
true. Liberty initially filed an unfair labor practice charge
with the NLRB, claiming that MEBA’s lawsuit to compel
arbitration violated the NLRA, but the NLRB’s Office of the
General Counsel (OGC) recommended dismissal because it
involved a “bona fide contractual issue,” Marine Eng’rs
Beneficial Ass’n (Liberty Mar.), Case 05-CB-077851, NLRB
Advice Mem. at 6, Aug. 31, 2012; Liberty subsequently
16
withdrew its charge. In addition, there is no “initial”
representational question at issue, see DiPonio, 687 F.3d at
750; in fact, no representational question is presented at all.
Rather, the dispute boils down to a contractual one—whether
the New Agreement remained in effect as of 12:01a.m. on
October 1 and whether Liberty violated it. Accordingly, we
conclude that the district court properly exercised its
jurisdiction under section 301 of the LMRA.
B. Arbitration
Having concluded that the district court had jurisdiction to
compel arbitration generally, we turn to the specific merits
inquiry in this case: is when the contract expired—i.e., whether
the parties reached impasse—an arbitrable issue? The district
court answered in the affirmative, see Liberty Mar., 70 F.
Supp. 3d at 350, and we agree.
The Supreme Court has set out “the proper framework for
deciding when disputes are arbitrable.” Granite Rock Co. v.
Int’l Bhd. of Teamsters, 561 U.S. 287, 296 (2010). “Under
that framework, a court may order arbitration of a particular
dispute only where the court is satisfied that the parties agreed
to arbitrate that dispute.” Id. (emphasis in original); see also
AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643,
648 (1986) (“[A]rbitration 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.” (quoting United Steelworkers
of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582
(1960))).
In considering how to apply this framework, we have used
“[a] trichotomy among the disputes that arise in arbitrability
cases.” Nat’l R.R. Passenger Corp. v. Bos. & Me. Corp., 850
F.2d 756, 761 (D.C. Cir. 1988). There are (1) “disputes over
the formation of an agreement to arbitrate”; (2) “disputes over
17
the breadth of an arbitration clause, where the parties disagree
over whether a certain issue falls within or without the subject
matter coverage of an undoubted agreement to arbitrate”; and
(3) disputes that “relate[] to the length, rather than the breadth,
of an arbitration clause.” Id. at 761. In other words, three
types of arbitrability disputes typically arise: (1) formation
disputes; (2) breadth disputes; and (3) duration disputes.
It is settled that a formation dispute is “generally for courts
to decide.” Granite Rock, 561 U.S. at 296; Nat’l R.R., 850
F.2d at 761 (“[I]f the parties disagree as to whether they ever
entered into any arbitration agreement at all, the court must
resolve that dispute.”). Similarly, a breadth dispute is
“generally for the courts to determine” but “parties may agree
to arbitrate questions of breadth” so long as they do so plainly.
Nat’l R.R., 850 F.2d at 761.
A duration dispute is a different animal. We have
articulated a rather detailed set of “general rules” for
“resolving disputes . . . over the expiration or termination of an
arbitration clause”:
If the arbitration clause is a narrow one,
covering only specified types of disputes . . . ,
then we must presume that the parties did not
intend for disputes over contract duration to be
referred to arbitration. In such a case, the court
will decide the question of duration unless the
party seeking arbitration makes a clear showing
that the contracting parties intended such
disputes to be arbitrated. Faced with a
somewhat broader arbitration clause, however,
such as one providing generally (perhaps with
certain specified exceptions) that disputes
“arising under” or “concerning” the contract are
18
to be arbitrated, we will presume that disputes
over the termination or expiration of the
contract should be submitted to arbitration. Of
course, this presumption also attaches where
the arbitration clause is broader still, such as
one requiring arbitration of “any grievance
affecting the mutual relations of the parties.”
Id. at 762 (citation omitted) (emphases added). The
presumption, however, is not absolute.
[E]ven in cases involving very broad arbitration
clauses, the presumption in favor of arbitrating
disputes over contract duration can be
overcome by a clear showing that the parties
intended for the underlying contract to expire,
or separately agreed to terminate it, before the
relevant dispute arose. For example, if a
contract provides that “all disputes between the
parties shall be arbitrated,” but with equal
clarity provides that it will expire on a date
certain, then any dispute over whether the
contract actually expired or was extended by
the parties must be decided by the court rather
than by the arbitrator.
Id. at 762–63 (emphasis added).
Liberty argues that the dispute in this case is more akin to a
formation dispute than a duration dispute; accordingly, it
asserts that, before compelling arbitration, the court must
decide whether the New Agreement was “in existence” at the
time MEBA filed its grievances. Appellant’s Br. 50. In
support of this argument, it relies heavily on the Supreme
Court’s statement in Granite Rock that if “any issue . . . calls
into question the formation or applicability of the specific
19
arbitration clause that a party seeks to have a court enforce,”
the district court must resolve that issue “[t]o satisfy itself” that
the parties did indeed intend to arbitrate. 561 U.S. at 297.
According to Liberty, its claim that the New Agreement
expired “calls into question the . . . applicability” of the
arbitration clause. See id.
Liberty also relies on Granite Rock’s analogous facts. In
that case, a union and an employer were parties to a CBA that
expired. Id. at 292. When the parties reached impasse in
negotiating a new CBA, the union went on strike. Id.
Negotiations continued and eventually the parties reached
agreement on a new CBA that included both an arbitration
provision and an anti-strike provision. Id. at 292–93. The
new CBA did not address the employer’s damages arising from
the strike and the parties attempted to reach a separate
“back-to-work” agreement holding workers harmless as to
those damages. Id. at 293. They were unsuccessful, the
union remained on strike and the employer sued the union for
damages for violating the anti-strike provision of the new
CBA. Id. at 293–94. The parties disputed the new CBA’s
ratification date. Id. at 294–95. The union argued that the
ratification issue should be resolved via arbitration. Id. at 295.
The Supreme Court disagreed, holding that ratification
determined the date on which the parties agreed to begin
arbitrating disputes. Id. at 303–05. The district court, not the
arbitrator, was required to decide the question. Id. at 304.
Liberty’s attempt to analogize its case to Granite Rock
rings hollow. Granite Rock falls squarely within the
formation-dispute category of the “trichotomy” we identified
in National Railroad, 850 F.2d at 761. The issue was when
the contract went into effect—a formation issue that, in that
case, was central to determining whether the parties had agreed
to arbitrate any dispute. Granite Rock, 561 U.S. at 303–05.
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This case has nothing to do with formation. Both parties
acknowledge they entered into an enforceable CBA. It thus
falls into a different category from Granite Rock—it is without
doubt a dispute over the agreement’s duration. Liberty
contends that the New Agreement expired at midnight on
September 30, 2011; MEBA contends no impasse was reached
and it remained in effect. As a result, National Railroad
instructs that who decides the duration question—the court or
an arbitrator—depends upon the breadth of the arbitration
provision. 850 F.2d at 762–63 (“[W]e believe that the breadth
of the arbitration clause does bear on the question of who must
determine its length.”). If the arbitration provision is broad,
the court presumes that the parties intended to arbitrate the
duration dispute; and unless a party can overcome the
presumption with “a clear showing” that the parties intended
the contract to expire, the duration question is reserved to the
arbitrator. Id. at 763. Conversely, if the arbitration provision
is narrow, and thus does not appear to cover duration, the court
determines whether the contract remained in effect. Id.
Here, the arbitration clause is quite broad: “All disputes
relating to the interpretation or performance of this Agreement
shall be determined in accordance with the provisions in this
[Arbitration-and-Grievance Procedure] Section.” Tanker
Agreement, at 10. “All disputes relating to the interpretation
. . . of this Agreement,” see id., includes a dispute as to the
interpretation of the duration provision—including the word
“impasse.” As the district court pointed out, “[e]ven if this
Court were to read the instant arbitration clause to suggest that
the parties only intended to arbitrate issues of contract
interpretation . . . , the question of whether the parties’
otherwise valid agreement expired is precisely such an
issue—it requires interpretation of the agreement’s duration
provision.” Liberty Mar., 70 F. Supp. 3d at 347 (emphasis in
original). As the court further noted, the New Agreement’s
21
arbitration clause is similar to the “broad” arbitration clause to
which the Supreme Court found the presumption of
arbitrability “particularly applicable.” Id. at 348 (quoting
AT&T Techs., 475 U.S. at 650). As a result, unless Liberty
can make a “clear showing” that the parties intended the New
Agreement to expire, the duration question is for the arbitrator,
not the court.
This Liberty fails to do. The duration provision does not
with abundant “clarity” provide a fixed expiration date, see
Nat’l R.R., 850 F.2d at 763; rather, the September 30, 2011
deadline gives way as soon as one party gives notice of its
intent to amend the agreement. At that point, the New
Agreement remains in effect until the parties reach “impasse.”
See MOU § 1. Although Liberty has a plausible argument
that the parties reached impasse, MEBA has an equally
plausible argument that they did not. Because expiration
turns on impasse—and Liberty cannot make a clear showing
that impasse occurred—the issue is plainly arbitrable under the
terms of the CBA.
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.