Brent Electric Company v. International Brotherhood of Electrical Workers

110 F.4th 1196

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 6, 2024
• Docket: 23-5108
• Status: Published

Opinion

Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 1 FILED United States Court of PUBLISH Appeals Tenth Circuit UNITED STATES COURT OF APPEALS August 6, 2024 FOR THE TENTH CIRCUIT Christopher M. Wolpert _________________________________ Clerk of Court

BRENT ELECTRIC COMPANY, INC.,

Plaintiff Counter Defendant - Appellant,

v. No. 23-5108

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 584,

Defendant Counter Plaintiff - Appellee.

------------------------------

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS; NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION,

Amici Curiae. _________________________________

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:21-CV-00246-CRK-CDL) _________________________________

Michael D. Oesterle, King & Ballow, Nashville, Tennessee (Mark E. Hunt and Marykate E. Williams, King & Ballow, Nashville, Tennessee, and Kevin P. Doyle, and Alex R. Telarik, Pray Walker, P.C., Tulsa, Oklahoma, with him on the briefs), for Plaintiff Counter Defendant-Appellant. Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 2

Glenda L. Pittman, Glenda Pittman & Associates, P.C., Austin, Texas (Frank W. Frasier, Frasier, Frasier & Hickman, LLP, Tulsa, Oklahoma, with her on the brief), for Defendant Counter Plaintiff-Appellee.

Robert D. Kurnick, Sherman Dunn, P.C., Washington, D.C., filed an Amici Brief for the National Electrical Contractors Association and the International Brotherhood of Electrical Workers, in support of Defendant Counter Plaintiff- Appellee. _________________________________

Before PHILLIPS, KELLY, and MORITZ, Circuit Judges. _________________________________

PHILLIPS, Circuit Judge. _________________________________

Brent Electric Company appeals the district court’s enforcement of an

arbitration award that imposed on Brent a renewed three-year collective-

bargaining agreement (CBA) with Local Union No. 584 of the International

Brotherhood of Electrical Workers (the Union). Brent objects that the imposed

CBA contains permissive subjects of bargaining, arguing that it did not clearly

and unmistakably waive its purported statutory right to refuse the imposition of

permissive subjects, and that such an award violates public policy.

This dispute requires us to consider two separate lines of cases carrying

ostensibly contradictory standards: those applying the presumption of

arbitrability absent forceful evidence of an intent not to arbitrate; and those

requiring a party’s clear and unmistakable waiver of a statutory right.

We reject Brent’s invitation to confuse the two and agree with the Union

that, by agreeing to the interest-arbitration clause in the 2018 CBA, Brent

consented to submit both permissive and mandatory subjects of bargaining to

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arbitration if the parties could not agree on the terms of a new CBA. We

therefore affirm the district court and hold Brent to its contractual obligations. 1

BACKGROUND

I. Factual Background

Brent and the Union have a long-standing relationship dating back to

1996, when Brent signed a Letter of Assent authorizing the Eastern Oklahoma

Chapter of the National Electrical Contractors Association (NECA) to negotiate

with the Union on Brent’s behalf. During the times relevant to this dispute, the

Union’s relationship with Brent was enabled by Section 8(f) of the Labor-

Management Relations Act, which exempts employers in the building and

construction industry from the general prohibition on making an agreement

with a union before a union has majority-employee support. 2 See 29 U.S.C.

§§ 158(f), 159(a); Sheet Metal Workers’ Int’l Ass’n, Loc. Union No. 2 v.

McElroy’s, Inc. (McElroy’s), 500 F.3d 1093, 1097 (10th Cir. 2007) (“Section

8(f) thus creates an exception to the NLRA’s general rule prohibiting a union

1 We grant the motion submitted by the National Electrical Contractors Association and the International Brotherhood of Electrical Workers for leave to file an amicus brief, which this court provisionally granted on December 29, 2023. 2 In supplemental briefing, the Union informed us that “[o]n September 23, 2021, the NLRB certified Local 584 as the exclusive collective bargaining representative selected by a majority of Brent’s bargaining unit employees” and so “[t]he parties’ bargaining relationship now is one governed by Section 9(a) of the Labor Management Relations Act (LMRA).” Appellee Suppl. Br. at 5.

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and an employer from signing a collective bargaining agreement recognizing

the union as the exclusive bargaining representative before a majority of

employees have authorized the union to represent their interests.”).

During early 2018, NECA and the Union negotiated and agreed to the

CBA at issue, which was effective from June 1, 2018, through May 31, 2021

(the 2018 CBA). Relevant to this appeal, the 2018 CBA included an interest-

arbitration clause, Section 1.02(d), which was the same as the interest-

arbitration clause included in the 2015 CBA:

Unresolved issues or disputes arising out of the failure to negotiate a renewal or modification of this agreement that remain on the 20th of the month preceding the next regular meeting of the Council on Industrial Relations for the Electrical Contracting Industry (CIR) may be submitted jointly or unilaterally to the [CIR] for adjudication. Such unresolved issues or disputes shall be submitted no later than the next regular meeting of the [CIR] following the expiration date of this agreement or any subsequent anniversary date. The [CIR’s] decisions shall be final and binding.

App. vol. I, at 48.

The negotiations also resulted in a memorandum of understanding (MOU)

between the Union, NECA, and another electrical contractor, which detailed

Brent’s obligations to contribute to the Union pension plan. The 2018 CBA

incorporated the MOU as Addendum Four. 3 See App. vol. I, at 46 (listing

Addendum Four in the 2018 CBA’s table of contents); Brent Elec. Co., Inc. v.

Int’l Bhd. of Elec. Workers Loc. Union No. 584, No. 21-CV-00246, 2022 WL

3 Brent disputes that the 2018 CBA incorporated Addendum Four. 4 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 5

16973249, at *5 n.9 (N.D. Okla. Nov. 16, 2022) (“The provisions at Addendum

Four were no less a part of the 2018 CBA, despite being an addendum . . . .”).

In September 2020, Brent wrote to NECA and the Union to provide

notice of its termination and revocation of the Letter of Assent, including its

authorization for NECA to act as its bargaining representative for matters

related to the CBA. Two months later, Brent provided notice to NECA and the

Union of its intent to stop making contributions to the Union pension fund

under the MOU.

In February 2021, the Union responded by submitting a grievance to

NECA’s Labor Management Committee (LMC), claiming that Brent had

violated Addendum Four of the CBA. The LMC agreed with the Union, ruling

that Brent was “in violation of Addendum 4 of the CBA” and asking Brent to

“correct December contribution monies . . . and any subsequent payments going

forward.” App. vol. I, at 114. In a still-pending related action, the Union filed a

complaint in the Northern District of Oklahoma against Brent, asking the court

to confirm and enforce the LMC decision, and Brent filed counterclaims.

Also in February 2021, Brent wrote to the Union, expressing its

purported “desire[] to reach a prompt successor Agreement with the Union.”

App. vol. II, at 118. But in the letter, Brent listed twenty-one “Articles/Sections

from the expiring” 2018 CBA that it asserted were “permissive subjects of

bargaining under established federal labor law” and thus beyond the Union’s

authority to “lawfully insist” be included in the 2021 CBA. Id. at 119. It also

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asserted that those subjects could not be imposed through interest arbitration.

Among the objected-to sections were Section 1.02(c), the evergreen clause, 4

and Section 1.02(d), the interest-arbitration clause. On that basis, Brent omitted

the sections from its proposed agreement. Brent also listed three sections it

asserted were “illegal subjects of bargaining,” and it likewise omitted them

from its proposed CBA. Id. Brent did not assert that the interest-arbitration

clause was an illegal subject of bargaining.

On April 9, 2021, the Union sent a letter to Brent stating its intent to

submit to the arbitrator, the Council on Industrial Relations for the Electrical

Contracting Industry (CIR), “unresolved issues that remain between the parties”

in accordance with the interest-arbitration clause in Section 1.02(d) of the 2018

CBA. Id. at 144. This was a unilateral submission and made over Brent’s

objection.

In May 2021, before the 2018 CBA expired, the CIR issued its

preliminary decision, which included a new CBA. The CIR directed the parties

“to sign and implement immediately the inside agreement which is attached

hereto and hereby made a part of this decision.” Id. at 195. Brent wrote to the

CIR, objecting to the inclusion of what it asserted were permissive subjects of

bargaining, including the evergreen clause. It also objected to the inclusion of

4 The evergreen clause provides that “[t]he existing provisions of the Agreement, including this Article, shall remain in full force and effect until a conclusion is reached in the matter of proposed changes.” App. vol. I, at 48.

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the MOU on pension contributions as Addendum Four. Brent did not object to

the 2021 CBA’s new arbitration provision.

The next month, the CIR issued a second decision, including a revised

version of the CBA, which corrected only “a clerical error” and provided Brent

no relief for “the numerous errors and omissions” Brent had raised in its May

objection letter. App. vol. I, at 21. The CIR responded to Brent’s letter,

“not[ing] that Brent Electric’s letter of May 30, 2021, requests the deletion of

several other provisions, which that letter describes as permissive subjects of

bargaining.” App. vol. III, at 211. It explained: “Those provisions have not

been deleted for two reasons: 1) In each case, they are among the ‘[u]nresolved

issues or disputes’ that your company explicitly agreed to submit to arbitration,

and 2) the CIR does not agree that those provisions are permissive subjects of

bargaining.” Id. The CIR then imposed its award—the 2021 CBA.

The 2021 CBA contained a different interest-arbitration provision than

the 2018 CBA. The 2021 version required mutual agreement before any future

interest arbitration could be submitted to the CIR and removed the unilateral

provision included in the 2018 CBA’s interest-arbitration clause:

(d). In the event that either party, or an Employer withdrawing representation from the Chapter or not represented by the Chapter, has given a timely notice of proposed changes and an agreement has not been reached by the expiration date or by any subsequent anniversary date to renew, modify, or extend this Agreement, or to submit the unresolved issues to the [CIR], either party or such an Employer, may serve the other a ten (10) day written notice terminating this Agreement. The terms and conditions of this

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Agreement shall remain in full force and effect until the expiration of the ten (10) day period.

(e). By mutual agreement only, the Chapter, or an Employer withdrawing representation from the Chapter or not represented by the Chapter, may jointly, with the Union, submit the unresolved issues to the [CIR] for adjudication. Such unresolved issues shall be submitted no later than the next regular meeting of the [CIR] following the expiration date of this Agreement or any subsequent anniversary date. The [CIR’s] decisions shall be final and binding.

App. vol. IV, at 272–73 (emphasis added).

II. Procedural Background

In June 2021, Brent filed a complaint in federal district court seeking to

vacate and set aside the CIR award. In response to Brent’s July 2021 amended

complaint, the Union counterclaimed to enforce the award. Besides requesting

confirmation of the award, the Union sought an audit of Brent’s payroll

records, as well as an award for the Union’s attorneys’ fees and costs.

On November 16, 2022, the district court granted the Union’s motion to

dismiss Brent’s amended complaint. See Brent Electric, 2022 WL 16973249, at

*6. The parties then cross-moved for summary judgment on the Union’s

counterclaim for enforcement. The district court partially granted the Union’s

motion for summary judgment on its counterclaim for enforcement: it

confirmed the CIR award but denied the Union’s requests for an audit of

Brent’s business records and an award of attorneys’ fees. Brent Elec. Co., Inc.

v. Int’l Bhd. of Elec. Workers Loc. Union No. 584, No. 21-CV-00246, 2023 WL

5750484, at *11 (N.D. Okla. Sept. 6, 2023). But it ordered Brent to preserve its

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“payroll-related business records for work performed from June 1, 2021,

through the pendency of any appeal taken from this Court’s decision.” Id. The

district court denied Brent’s motion for summary judgment.

On October 4, 2023, Brent filed a notice of appeal from both the

dismissal of its complaint and the denial of its motion for summary judgment.

Brent moved to stay enforcement of the 2021 CBA pending this appeal, which

the district court denied. See Brent Elec. Co., Inc. v. Int’l Bhd. of Elec. Workers

Loc. Union No. 584, No. 21-CV-00246, 2024 WL 66039, at *1, *7 (N.D. Okla.

Jan. 5, 2024). The district court later reaffirmed its decision and reasoned that

any harm Brent might suffer from the imposition of the 2021 CBA was not

irreparable and that the public interest favored denial of a stay. Id. at *5–6.

Brent then moved to stay enforcement of the award in this court under Federal

Rule of Appellate Procedure 8(a)(2), which we also denied.

We exercise jurisdiction over the district court’s disposition of the

motion to dismiss and the cross-motions for summary judgment under 28

U.S.C. § 1291.

DISCUSSION

We review de novo “the district court’s dismissal for failure to state a

claim and the district court’s grant of summary judgment, applying the same

legal standard as the district court.” Elliott Indus. Ltd. P’ship v. BP Am. Prod.

Co., 407 F.3d 1091, 1106–07 (10th Cir. 2005); see also United Steel, Paper &

Forestry, Rubber, Mnfg., Energy, Allied Indus. & Serv. Workers Int’l Union

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Loc. 13–857 v. Phillips 66 Co. (Phillips 66), 839 F.3d 1198, 1204 (10th Cir.

2016) (“We review de novo the grant of summary judgment, including where

the district court has ordered arbitration . . . .”).

Brent appeals the district court’s dismissal of its complaint and its grant

of the Union’s motion for summary judgment on its counterclaim to enforce the

CIR award. As a preliminary matter, we reject the Union’s argument that this

case might be moot given Brent’s compliance with the 2021 CBA. 5 We next

review the legal framework necessary to put Brent’s arguments in context.

Turning to the merits, we conclude that the presumption of arbitrability applies

to Brent’s dispute, and reject Brent’s arguments that it has a statutory right to

avoid having permissive subjects of bargaining imposed in interest arbitration

and that such an imposition violates public policy or the Federal Arbitration

Act.

I. Brent’s appeal is not moot.

Article III of the Constitution limits our exercise of “judicial Power” to

“Cases” and “Controversies.” U.S. Const. art. III, § 2. The doctrine of

constitutional mootness means that “the suit must present a real and substantial

controversy with respect to which relief may be fashioned” and relevant here,

“the controversy must remain alive at the . . . appellate stages of the litigation.”

Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011) (quoting Fletcher v.

5 The 2021 CBA was set to expire at the end of May 2024, shortly after we heard oral argument in this case. 10 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 11

United States, 116 F.3d 1315, 1321 (10th Cir. 1997)). Constitutional mootness

is therefore “grounded in the requirement that any case or dispute that is

presented to a federal court be definite, concrete, and amenable to specific

relief.” Id. (cleaned up). “The crucial question is whether granting a present

determination of the issues offered will have some effect in the real world.” Rio

Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1110 (10th

Cir. 2010) (citation omitted).

Voluntary cessation of challenged activity may moot litigation “if two

conditions are satisfied: (1) it can be said with assurance that there is no

reasonable expectation that the alleged violation will recur, and (2) interim

events have completely and irrevocably eradicated the effects of the alleged

violation.” Id. at 1115 (cleaned up). The party asserting mootness bears the

“heavy burden of persuading the court that the challenged conduct cannot

reasonably be expected to start up again.” Id. at 1116 (cleaned up).

If a party requests only declaratory or injunctive relief, courts may also

dismiss a case under the “prudential-mootness doctrine.” Id. at 1121; see id. at

1122 (“This doctrine generally applies only to requests for injunctive or

declaratory relief.” (citations omitted)). Courts may dismiss a case because of

prudential mootness if it “is so attenuated that considerations of prudence and

comity for coordinate branches of government counsel the court to stay its

hand, and to withhold relief it has the power to grant.” Id. at 1121 (quoting

Fletcher, 116 F.3d at 1321 (emphasis omitted)). Prudential mootness thus

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“arises out of the court’s general discretion in formulating prospective

equitable remedies” and is particularly appropriate when a party requests

injunctive relief against the government. Bldg. & Const. Dep’t v. Rockwell Int’l

Corp., 7 F.3d 1487, 1492 (10th Cir. 1993). Under both the constitutional- and

prudential-mootness doctrines, “the central inquiry is essentially the same: have

circumstances changed since the beginning of the litigation that forestall any

occasion for meaningful relief.” Rio Grande Silvery Minnow, 601 F.3d at 1122

(quoting S. Utah Wilderness All. v. Smith, 110 F.3d 724, 727 (10th Cir. 1997)).

Though the Union’s motion to cancel oral argument on mootness grounds

was untimely, we still must consider the Union’s arguments because Article III

mootness is a jurisdictional issue. 6 See Rivera v. Bank of Am., N.A., 993 F.3d

6 In April 2024, the Union moved to cancel oral argument because it wanted to “bring to the Court’s attention this matter’s potential, imminent mootness.” Mot. to Cancel at 2. It argued that “potential mootness arises from the approaching May 31, 2024 expiration date of the collective bargaining agreement at issue in this matter” and from Brent’s “apparent compliance with that agreement,” which the Union noted in its opposition to Brent’s motion to stay enforcement of the award. Id. But in the Union’s response to the motion to stay, the Union noted only that “Brent has been complying with most, if not all, of the 2021 CBA’s terms.” Mot. to Stay Resp. at 17. If the Union believed in January when it responded to Brent’s motion to stay that Brent had complied with all the 2021 CBA’s terms, it should have moved to cancel due to mootness in January and not waited until April, soon before oral argument. Indeed, under Local Rule 27.3, “a motion for summary disposition because of . . . mootness,” 10th Cir. R. 27.3(A)(1)(b), must be filed “within 14 days after the notice of appeal is filed, unless good cause is shown,” 10th Cir. R. 27.3(A)(3)(a). The Union has known the date of the 2021 CBA’s expiration since early 2021. It therefore lacks good cause in delaying its motion beyond the time that it discovered Brent’s compliance with the 2021 CBA, whether that was in January 2024 or earlier. 12 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 13

1046, 1049 n.3 (8th Cir. 2021) (“[M]ootness goes to the very heart of Article

III jurisdiction, and any party can raise it at any time. Indeed, it would be the

Court’s duty to raise and decide the issue on its own motion, if facts suggesting

mootness should come to its attention . . . .” (quoting In re Smith, 921 F.2d

136, 138 (8th Cir. 1990)). Because “mootness, if it exists, would destroy our

jurisdiction, we should address this issue first.” In re Smith, 921 F.2d at 138.

A. Brent did not voluntarily comply with the 2021 CBA, and so its compliance does not moot this appeal.

The Union argues that Brent’s compliance with the 2021 CBA moots this

appeal. “The test of whether an appeal is moot is whether the party acted

voluntarily or because of the actual or implied compulsion of judicial power.”

Out of Line Sports, Inc. v. Rollerblade, Inc., 213 F.3d 500, 502 (10th Cir.

2000). “Showing that the party’s compliance was a consciously performed

voluntary act requires more than simple compliance with a court order or

decree.” Id. (citation omitted). In Out of Line Sports, a party complied

voluntarily with an order enforcing a lien by jointly signing a motion to release

the funds, by not moving to stay the judgment, and by not explicitly reserving

its right to appeal. Id.

In its denial of Brent’s motion to stay, the district court noted that “[t]he

circumstances of this case are dissimilar from those cases where compliance

with a judgment moots an appeal.” Brent Electric, 2024 WL 66039, at *5 n.3

(citing Out of Line Sports, 213 F.3d at 503). We agree. Unlike the compliant

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party in Out of Line Sports, Brent filed a motion to stay enforcement of the CIR

award in district court, and when that motion was denied, it filed a motion to

stay in this court. Brent has vigorously preserved its objections to the 2021

CBA at all stages of the litigation. And, unlike the party in Out of Line Sports,

which had jointly moved for the release of funds, Brent refused to sign the

2021 CBA until the district court forced it to do so, fearing that signing it

might indicate voluntary compliance. Brent’s filing of a complaint in district

court to vacate the CIR award, its later motion to stay enforcement, and its

appeal suffice to demonstrate that any compliance was involuntary.

Typically, the “party asserting mootness” bears the burden of showing

that “the challenged conduct cannot reasonably be expected to start up again.”

Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000) (citation

omitted). But here, we need not determine whether “the allegedly wrongful

behavior could not reasonably be expected to recur” because that test applies

only when a defendant voluntarily complies with a request for prospective

relief and then challenges the relief on mootness grounds. Unified Sch. Dist.

No. 259 v. Disability Rts. Ctr. of Kansas, 491 F.3d 1143, 1149 (10th Cir. 2007)

(cleaned up). Brent’s involuntary compliance makes the recurring-conduct test

a poor fit for this case. And it is the Union that is raising a mootness challenge,

not Brent, so the Union’s assertion that Brent’s compliance is voluntary rings

hollow. But even if the Union were correct that Brent voluntarily complied with

the 2021 CBA, its mootness challenge would still fail because, if successful in

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this appeal, Brent could seek remedies that would have real-world

consequences. We address those consequences next.

B. Brent could seek monetary damages or reimbursements if we decide this appeal in Brent’s favor.

Though this appeal comes too late to affect Brent’s compliance with the

2021 CBA, Brent may still try to recover reimbursements or monetary damages

stemming from its compliance if we rule in its favor and invalidate the CIR

award. If we invalidate the 2021 CBA, Brent could claim reimbursement of a

$750 premium for a surety bond, plus interest. Brent could also seek

reimbursement of around $5,156.48 in contributions it has made to the Labor-

Management Cooperation Committee (LMCC) and National Labor Management

Cooperation Committee (NLMCC) funds “pursuant to unlawfully imposed

permissive provisions” in the 2021 CBA. Appellant Suppl. Br. at 5.

The Union counters that any “purported, potential damages or other harm

do not constitute live controversies.” Appellee Suppl. Br. at 9. The Union

argues that the surety-bond provision in the 2021 CBA is a mandatory subject

of bargaining, and so “any effort Brent makes to seek reimbursement for

premiums would subject it to the NLRB’s enforcement authority.” Id.; see id. at

6 (citing Scapino Steel Erectors, Inc., 337 NLRB 992, 993–94 (2002)). Second,

the Union argues that Brent’s claims to a refund for contributions it made to the

LMCC and NLMCC do not refute its mootness argument, because “these funds

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are not parties to this lawsuit, so there is no federal court jurisdiction in this

matter over either of them.” Id. at 9.

But all of Brent’s avenues for potential relief depend on the outcome of

this appeal, meaning our decision carries real-world consequences. True

enough, Brent may have to initiate an NLRB proceeding to vindicate its right to

a remedy under any of the 2021 CBA’s mandatory provisions, but it may only

do so if we invalidate the CBA. Likewise, Brent’s ability to proceed against

LMCC and NLMCC for reimbursement of its contributions hinges on our

decision here.

The Union adds that “if separately sued by Brent, both [the LMCC and

NLMCC] may be able to successfully defend.” Id. According to the Union,

these committees could defend against such an action because “Brent has

adopted the 2021 CBA by its conduct, and is as bound as it would have been

had it signed that CBA at its inception.” Id. at 5. Further, the Union argues, the

liquidated-damages and interest provisions attached to contributions to those

committees’ funds are “triggered only by a delinquency in contributions, and

Brent has identified no such delinquency arising under the 2021 CBA.” Id. at

9–10.

None of these uncertainties—regarding the forum before which any

remand proceedings may occur, the likelihood of success of such proceedings,

or what the most appropriate remedy would be—affect our jurisdiction over this

appeal. See Litton Fin. Printing Div. v. N.L.R.B., 501 U.S. 190, 202 (1991)

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(“We have accorded the Board considerable authority to structure its remedial

orders to effect the purposes of the NLRA and to order the relief it deems

appropriate.”). If we decide in Brent’s favor, then Brent may seek such relief

and initiate those proceedings; without such a decision, Brent may not. This is

enough of a real-world consequence to persuade us that Brent’s appeal is not

moot. See Rio Grande Silvery Minnow, 601 F.3d at 1110.

C. We decline to exercise our discretion to dismiss the appeal under the prudential-mootness doctrine.

Finally, the Union invites us to dismiss this case under the prudential-

mootness doctrine because the relief sought here is “arguably” “declaratory in

nature,” Appellee Suppl. Br. at 2, and urges us to decide “whether granting a

present determination of the issues offered will have some effect in the real

world,” id. (quoting Rio Grande Silvery Minnow, 601 F.3d at 1110). Having

decided that we have Article III jurisdiction, we choose not to dismiss this case

under the prudential-mootness doctrine for two main reasons: First, Brent does

not seek injunctive relief against the government, so considerations of comity

are inapposite. Second, Brent’s request for relief, though framed in declaratory

or injunctive terms, still has real-world consequences—a decision in its favor

would result in remand proceedings in which Brent could claim monetary

damages, or at least reimbursement, as discussed above. See Rio Grande Silvery

Minnow, 601 F.3d at 1110.

For these reasons, we retain jurisdiction over this appeal.

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II. Legal Framework

We start with a brief survey of three interrelated topics that are

implicated in this appeal: the presumption of arbitrability, interest-arbitration

clauses, and the distinction between mandatory and permissive subjects of

bargaining.

A. The Presumption of Arbitrability

In a set of three cases referred to as the “Steelworkers trilogy,” the

Supreme Court articulated a framework by which to determine whether a

collective-bargaining dispute is arbitrable. See generally United Steelworkers

of Am. v. Enter. Wheel & Car Corp. (Enterprise Wheel), 363 U.S. 593 (1960);

United Steelworkers of Am. v. Warrior & Gulf Nav. Co. (Warrior & Gulf), 363

U.S. 574 (1960); United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564

(1960). The Court has summarized four main principles from the Steelworkers

trilogy. AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648–50

(1986). 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.” Id.

at 648 (quoting Warrior & Gulf, 363 U.S. at 582); see Howsam v. Dean Witter

Reynolds, Inc., 537 U.S. 79, 83 (2002) (quoting same). Second, the “question of

arbitrability” is “an issue for judicial determination.” AT&T, 475 U.S. at 649.

That is, “[u]nless the parties clearly and unmistakably provide otherwise, the

question of whether the parties agreed to arbitrate is to be decided by the court,

not the arbitrator.” Id. (citing Warrior & Gulf, 363 U.S. at 582–83). Third, “in

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deciding whether the parties have agreed to submit a particular grievance to

arbitration, a court is not to rule on the potential merits of the underlying

claims.” Id. at 649; see id. at 650 (“[C]ourts . . . have no business weighing the

merits of the grievance . . . or determining whether there is particular language

in the written instrument which will support the claim.” (quoting Am. Mfg. Co.,

363 U.S. at 568)). Fourth, and most importantly here, “where the contract

contains an arbitration clause, there is a presumption of arbitrability.” Id. at

650. This means 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.” Id. (quoting Warrior & Gulf,

363 U.S. at 582–83).

The presumption of arbitrability arises from “congressional policy in

favor of settlement of disputes by the parties through the machinery of

arbitration.” Warrior & Gulf, 363 U.S. at 582. This is because, in the labor

context, “arbitration is the substitute for industrial strife.” Id. at 578; see 29

U.S.C. § 151 (recognizing that “[t]he denial by some employers of the right of

employees to organize and the refusal by some employers to accept the

procedure of collective bargaining lead to strikes and other forms of industrial

strife or unrest” and declaring “the policy of the United States to eliminate the

causes of certain substantial obstructions to the free flow of commerce”). The

presumption of arbitrability thus “reconciles the principle that a party cannot be

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required to submit to arbitration any dispute that he has not agreed so to

submit, with the federal policy and presumption favoring arbitration in the

labor context.” Int’l Bhd. of Elec. Workers, Loc. No. 111 v. Pub. Serv. Co. of

Colorado, 773 F.3d 1100, 1108 (10th Cir. 2014) (cleaned up).

But the presumption applies where “arbitration of a particular dispute is

what the parties intended because their express agreement to arbitrate was

validly formed and (absent a provision clearly and validly committing such

issues to an arbitrator) is legally enforceable and best construed to encompass

the dispute.” Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 303

(2010). So, “as with any other contract, the parties’ intentions control, but

those intentions are generously construed as to issues of arbitrability.”

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626

(1985).

The Court directs us to apply the following framework to determine

whether the presumption applies and, if it does, whether it is rebutted:

[E]xcept 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. [Courts] then discharge this duty by: (1) applying the presumption of arbitrability only where a validly formed and enforceable arbitration agreement is ambiguous about whether it covers the dispute at hand; and (2) adhering to the presumption and ordering arbitration only where the presumption is not rebutted.

Granite Rock, 561 U.S. at 301 (cleaned up).

20 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 21

And so, “[i]n the absence of any express provision excluding a particular

grievance from arbitration, . . . only the most forceful evidence of a purpose to

exclude the claim from arbitration can prevail, particularly where, as here, the

exclusion clause is vague and the arbitration clause quite broad.” Warrior &

Gulf, 363 U.S. at 584–85; see Phillips 66, 839 F.3d at 1204 (quoting same).

A challenge to the scope of an interest-arbitration clause is therefore

construed as an arbitrability issue because it challenges whether a particular

dispute was rightly before an arbitrator—it does not challenge the arbitration

agreement’s existence. See Dumais v. Am. Golf Corp., 299 F.3d 1216, 1220

(10th Cir. 2002) (“The presumption in favor of arbitration is properly applied

in interpreting the scope of an arbitration agreement; however, this presumption

disappears when the parties dispute the existence of a valid arbitration

agreement.”).

B. Interest-arbitration Clauses

CBAs often include what courts have called “interest arbitration

clause[s]” or provisions. Sheet Metal Workers’ Int’l Ass’n, Loc. 14 v. Aldrich

Air Conditioning, Inc. (Aldrich Air Conditioning), 717 F.2d 456, 456 (8th Cir.

1983). Interest-arbitration clauses usually function by allowing one party to

submit unresolved disputes to arbitration if negotiations for a renewed

agreement stall or are unproductive. See id. (“An interest arbitration clause is

one in which the parties agree to arbitrate disputes over the terms of a new

collective bargaining agreement in the event of deadlock.”). The resulting

21 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 22

arbitration then leads to the imposition of a set of “new contract terms.”

McElroy’s, 500 F.3d at 1095 n.1.

Interest-arbitration clauses are often paired with so-called “extension

clauses” or “evergreen clauses,” which, when combined, provide for the

continuation of a current agreement until a successor agreement is reached,

either by mutual agreement or by arbitration, unless both parties agree to

terminate. Id. at 1098 (“Read together, these articles provide two options upon

the expiration of the agreement: automatic renewal” or “negotiation of a

renewal agreement.” But if “the parties fail to negotiate a renewal of the

agreement . . . either party may submit the dispute to the [arbitrator] for

arbitration. While the dispute is pending resolution before the [arbitrator], [the

extension clause] prevents the original agreement from expiring.” (cleaned

up)).

C. Mandatory and Permissive Subjects of Bargaining

The distinction between mandatory and permissive subjects of bargaining

stems from the National Labor Relations (Wagner) Act of 1935 (NLRA), 29

U.S.C. §§ 151–169. As amended by the Labor-Management Relations (Taft-

Hartley) Act of 1947 (LMRA), Pub. L. No. 80–101, 61 Stat. 136, Section 8 of

the NLRA outlines both employers’ and labor organizations’ “[o]bligation[s] to

bargain collectively” “with respect to wages, hours, and other terms and

conditions of employment.” 29 U.S.C. § 158(d); see id. § 158(a)(5) (making it

an unfair labor practice for employers to refuse to bargain collectively); id.

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§ 158(b)(3) (same for labor organizations). The Court refers to “wages, hours,

and other terms and conditions of employment,” id. § 158(d), as “subjects for

mandatory bargaining,” Allied Chem. & Alkali Workers of Am., Loc. Union

No. 1 v. Pittsburgh Plate Glass Co. (Allied Chemical), 404 U.S. 157, 178

(1971). By contrast, nonmandatory or “permissive subjects cover[] all other

areas.” Facet Enters., Inc. v. N.L.R.B., 907 F.2d 963, 975 (10th Cir. 1990). So,

“[a]lthough parties are free to bargain about any legal subject, Congress has

limited the mandate or duty to bargain to matters of ‘wages, hours, and other

terms and conditions of employment.’” First Nat. Maint. Corp. v. N.L.R.B., 452

U.S. 666, 674 (1981) (quoting 29 U.S.C. § 158(d)). This means that “parties to

labor negotiations are not obligated to negotiate over permissive bargaining

subjects.” Facet Enterprises, 907 F.2d at 975.

To enforce the duty to bargain collectively over mandatory subjects,

Section 8(a)(5) makes an employer’s “refus[al] to bargain collectively with the

representatives of his employees” an unfair labor practice, § 158(a)(5), while

Section 8(b)(3) makes a labor organization liable for the same behavior, id.

§ 158(b)(3). When agreement about mandatory subjects is conditioned upon

agreement about permissive subjects of bargaining, such insistence is “in

substance, a refusal to bargain about the subjects that are within the scope of

mandatory bargaining.” N.L.R.B. v. Wooster Div. of Borg-Warner Corp. (Borg-

Warner), 356 U.S. 342, 349 (1958). And such a refusal constitutes an unfair

labor practice for labor organizations as well as employers. See N.L.R.B. v.

23 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 24

Bartlett-Collins Co., 639 F.2d 652, 655 (10th Cir. 1981) (“The Court

specifically stated in Borg-Warner that good faith does not entitle a party to

insist upon nonmandatory subjects as a precondition to agreement.”);

Newspaper Printing Corp. v. N.L.R.B., 625 F.2d 956, 963 (10th Cir. 1980)

(“[I]t is equally well established that insistence to impasse upon a non-

mandatory subject of bargaining violates § 8(a)(5).”).

In practice, the distinction means that if an impasse is reached after

good-faith bargaining over mandatory subjects, the other party may lawfully

take unilateral action to resolve the impasse. 7 See Aggregate Indus. v. N.L.R.B.,

824 F.3d 1095, 1099 (D.C. Cir. 2016) (“If the union refused to bargain, or if

negotiations reached an impasse, then the company could make the change

unilaterally.”). By contrast, “[a] unilateral change to a permissive subject of

bargaining is illegal” so that “if negotiations stall, the company has no choice

but to maintain the status quo.” Id.

In conclusion, “[t]he duty [to bargain in good faith] is limited to [wages,

hours, and other terms and conditions of employment], and within that area

neither party is legally obligated to yield. As to other matters, however, each

party is free to bargain or not to bargain, and to agree or not to agree.” Borg-

7 “An impasse exists when parties to a labor negotiation exhaust all possibility of reaching an agreement and further negotiations would be fruitless. Once a valid impasse is reached, an employer may take reasonable unilateral action without violating the [NLRA].” Facet Enterprises, 907 F.2d at 975 n.9 (10th Cir. 1990) (citations omitted). 24 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 25

Warner, 356 U.S. at 349 (citation omitted). Importantly, for nonmandatory or

permissive provisions, “[e]ach would be enforceable if agreed to by the

unions.” Id.

With that background in mind, we proceed to the merits.

III. The presumption of arbitrability applies because the interest- arbitration clause was validly formed and covers the dispute.

Applying the Court’s directive in Granite Rock, we note first that neither

party contests that it is the court’s duty to interpret the 2018 CBA and to

determine whether the parties intended to arbitrate permissive subjects of

bargaining. See 561 U.S. at 301 (“[E]xcept 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.” (cleaned up)); Dumais, 299 F.3d at 1220 (“The

presumption in favor of arbitration . . . disappears when the parties dispute the

existence of a valid arbitration agreement.”). We also note that Brent does not

challenge the validity of the 2018 CBA as a whole, or contest that it agreed to

the interest-arbitration clause in Section 1.02(d). See Brent, 2023 WL 5750484,

at *4 (stating that it is “undisputed that the parties agreed to the 2018 CBA”

and that the 2018 CBA includes Section 1.02(d)); Op. Br. at 5 (“During early

2018, NECA and the Union negotiated and entered into a multi-employer

collective bargaining agreement . . . [including] Section 1.02(d).”); Resp. Br. at

16 (“Brent does not dispute that it validly entered into the 2018 CBA, including

25 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 26

its Section 1.02(d), an interest arbitration provision authorizing the CIR to

adjudicate unresolved bargaining issues.”). 8

Brent argues instead that it did not intend by its agreement to the 2018

CBA and Section 1.02(d) to submit permissive subjects of bargaining to

arbitration. So by challenging the scope of the interest-arbitration clause and

asserting that it does not cover permissive subjects of bargaining, Brent raises

an arbitrability issue. See McElroy’s, 500 F.3d at 1096 (stating that the

“ultimate question thus posed is whether the agreement bound McElroy’s to

engage in interest arbitration” and construing that question as a “question of

arbitrability” for the court to decide (citation omitted)).

We therefore conclude that, because the arbitration clause was validly

formed, the presumption of arbitrability applies unless the arbitration clause

does not “encompass the dispute.” Granite Rock, 561 U.S. at 303. To make that

determination, we turn next to the application of Granite Rock’s enumerated

steps: first, we determine whether the interest-arbitration clause in the 2018

CBA unambiguously covers permissive subjects of bargaining; and second, if

any ambiguity exists, we discuss whether Brent rebutted the presumption of

arbitrability here.

8 Brent’s objections relate to the CIR proceedings in 2021 and the 2021 CBA—Brent does not identify any objections it made to the 2018 CBA or the 2018 CBA’s interest-arbitration clause.

26 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 27

A. The interest-arbitration clause unambiguously covers all subjects in the 2018 CBA, including permissive subjects.

As an initial matter, “[w]hen deciding whether the parties agreed to

arbitrate a certain matter (including arbitrability), courts generally . . . should

apply ordinary state-law principles that govern the formation of contracts.” 9

First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995); see Dish

Network L.L.C. v. Ray, 900 F.3d 1240, 1246 (10th Cir. 2018) (quoting same).

CBAs are also interpreted “according to ordinary principles of contract law.”

M & G Polymers USA, LLC v. Tackett, 574 U.S. 427, 435 (2015). Because the

signatories to the 2018 CBA are based in Oklahoma and the work was

performed there, we determine that Oklahoma law applies to the interpretation

of the 2018 CBA’s terms. See Okla. Stat. Ann. tit. 15, § 162 (“A contract is to

be interpreted according to the law and usage of the place where it is to be

9 The Court qualified this rule by noting that “Courts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakabl[e]’ evidence that they did so.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995) (quoting AT&T, 475 U.S. at 649). It explained: “In this manner the law treats silence or ambiguity about the question ‘who (primarily) should decide arbitrability’ differently from the way it treats silence or ambiguity about the question ‘whether a particular merits- related dispute is arbitrable because it is within the scope of a valid arbitration agreement’—for in respect to this latter question the law reverses the presumption.” Id. at 944–45. But the “clear and unmistakable” standard does not apply here, because, as discussed above, the parties do not dispute that the scope of the interest- arbitration clause was properly submitted to the court, not the arbitrator.

27 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 28

performed, or, if it does not indicate a place of performance, according to the

law and usage of the place where it is made.”). 10

Under Oklahoma contract law, “[i]f the terms of a contract are

unambiguous, clear and consistent, they are accepted in their plain and ordinary

sense and the contract will be enforced to carry out the intention of the parties

as it existed at the time it was negotiated.” Whitehorse v. Johnson, 156 P.3d 41,

47 (Okla. 2007). “Unless some technical term is used in a manner meant to

convey a specific technical concept, language in a contract is given its plain

and ordinary meaning.” K & K Food Servs., Inc. v. S & H, Inc., 3 P.3d 705, 708

(Okla. 2000); see also Pitco Prod. Co. v. Chaparral Energy, Inc., 63 P.3d 541,

545 (Okla. 2003) (“If language of a contract is clear and free of ambiguity the

court is to interpret it as a matter of law, giving effect to the mutual intent of

the parties at the time of contracting.” (footnotes omitted)). Further,

“[c]ontractual intent is determined from the entire agreement.” Whitehorse, 156

P.3d at 47.

With these state-law contract principles in mind, we examine the interest-

arbitration clause at issue. Section 1.02(d) of the 2018 CBA reads:

Unresolved issues or disputes arising out of the failure to negotiate a renewal or modification of this agreement that remain on the 20th of the month preceding the next regular meeting of the [CIR] may be submitted jointly or unilaterally to the [CIR] for adjudication. Such unresolved issues or disputes shall be submitted no later than

10 “Oklahoma statutes provide a comprehensive scheme which governs contractual agreements.” Pitco Prod. Co. v. Chaparral Energy, Inc., 63 P.3d 541, 545 n.16 (Okla. 2003). 28 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 29

the next regular meeting of the [CIR] following the expiration date of this agreement or any subsequent anniversary date. The [CIR’s] decisions shall be final and binding.

App. vol. I, at 48. The key language of this clause is in the first sentence:

“Unresolved issues or disputes arising out of the failure to negotiate a renewal

or modification of this agreement . . . .” Id. We discern that this is a “broad”

arbitration clause, see Warrior & Gulf, 363 U.S. at 585, because the terms

“[u]nresolved issues or disputes” are limited only by the qualification that they

“aris[e] out of the failure to negotiate a renewal or modification” of the CBA,

App. vol. I, at 48. Section 1.02(d) therefore provides that any disputes arising

from the eleven articles (each with several subsections), and five addenda

contained in the 2018 CBA may be unilaterally submitted to arbitration. And,

according to Brent, those eleven articles and five addenda include both

permissive and mandatory subjects of bargaining. See App. vol. II, at 118–19

(objecting that twenty-one subsections in the 2018 CBA were permissive

subjects and should not be imposed in the 2021 CBA). But see App. vol. III, at

211 (“[T]he CIR does not agree that those provisions are permissive subjects of

bargaining.”). 11

11 The Union seems to accept Brent’s premise that the objected-to provisions in the 2021 CBA were “permissive subjects of bargaining” despite the CIR determining otherwise. See Resp. Br. at 10 (quoting CIR Letter). When the CIR responded to Brent’s objections to the award, it wrote that “[t]hose provisions have not been deleted for two reasons: 1) In each case, they are among the ‘[u]nresolved issues or disputes’ that your company explicitly (footnote continued) 29 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 30

The arbitration clause’s breadth does not render it ambiguous. We agree

with the district court that the term “‘unresolved issues or disputes’ is

unambiguous.” Brent Electric, 2023 WL 5750484, at *4 (quoting App. vol. I, at

48). The district court properly consulted a dictionary to confirm its

understanding of the plain meaning of that term, noting that the word

“[u]nresolved” means “not settled, solved, or brought to resolution,” and that

the word “[d]isputes” means a “controversy.” Id. (citations omitted); see

Cherokee Nation v. Lexington Ins. Co., 521 P.3d 1261, 1267 (Okla. 2022) (“Our

Court has relied on dictionary definitions to provide the common, ordinary

usage of terms. A common dictionary is helpful here.” (citation omitted)); see

also McAuliffe v. Vail Corp., 69 F.4th 1130, 1145 (10th Cir. 2023) (“When

determining the plain and ordinary meaning of words, we may consider

definitions in a recognized dictionary.” (citation omitted)). The district court

determined that the “language of § 1.02(d) captures a dispute over any

provision arising from the negotiation of a successor agreement to the 2018

CBA.” Brent Electric, 2023 WL 5750484, at *4. It therefore concluded that the

agreement to arbitrate “extends to all subjects of negotiation among the parties

agreed to submit to arbitration, and 2) the CIR does not agree that those provisions are permissive subjects of bargaining.” App. vol. III, at 211. Because we are cautioned by the Court not to reach the merits of an arbitral award, we do not question the CIR’s determination. See AT&T, 475 U.S. at 649 (“[I]n deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claims.”). 30 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 31

including those created by contract,” and is not limited to mandatory subjects

of bargaining. Id. at *5.

The district court also properly looked to the surrounding subsections in

Article I to conclude that Section 1.02 “refers to the agreement as a whole and

does not limit itself to disputes arising from obligations imposed by the

NLRA.” Id.; see Whitehorse, 156 P.3d at 47 (“Contractual intent is determined

from the entire agreement.”); cf. Marcantel v. Saltman Fam. Tr., 993 F.3d

1212, 1235 (10th Cir. 2021) (applying Utah principles of contract interpretation

and considering “natural meaning” of words “in context of the contract as a

whole”). For example, it noted that Section 1.02(a) “refers to withdrawal from

the agreement as a whole,” that Section 1.02(b) “speaks of changes to the

agreement without distinction between the mandatory and non-mandatory

subjects contained within the agreement,” and that Section 1.02(f) discusses

“terminating the agreement, not parts of the agreement.” Brent Electric, 2023

WL 5750484, at *5. We see no flaw in the district court’s plain-language and

contextual analysis and conclude that it tracks state-law principles governing

the formation of contracts. That Section 1.02(d) is broadly worded and does not

distinguish between mandatory and permissive subjects of bargaining does not

make it ambiguous as to either. 12

12 On appeal, Brent asserts that Section 1.02(d) is “unquestionably ambiguous,” and claims that the district court’s “act of consulting a source outside of the specific language for its meaning”—i.e., a dictionary— (footnote continued) 31 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 32

Brent disputes the district court’s conclusion that Section 1.02(d)

contains “no language of limitation” and that such an interpretation would give

the CIR “free reign [sic]” to consider and make “award[s] as to any and every

permissive subject of bargaining.” Op. Br. at 28–29. But any authority that the

CIR has—to which Brent now objects—is authority which Brent gave the CIR

when it renewed the 2018 CBA, and with it, Section 1.02(d)’s interest-

arbitration clause. See Discussion § IV(B), infra; McElroy’s, 500 F.3d at 1097

(“Nothing in the NLRA, the NLRB’s decisions, or this Court’s precedent

releases McElroy’s from this bargained-for contractual obligation.”).

Brent argues that Section 1.02(d) “must be construed in light of the ‘important

goal of national labor policy’ to preserve the ‘freedom to exclude

nonmandatory subjects from labor agreements.’” Op. Br. at 30 (quoting Sheet

Metal Workers Loc. Union No. 54 v. E.F. Etie Sheet Metal Co. (E.F. Etie),

1 F.3d 1464, 1476 (5th Cir. 1993)). But Brent relies on out-of-circuit authority

“demonstrates that the language is in fact ambiguous.” Op. Br. at 24. Brent argues that the term “unresolved issues or disputes” is ambiguous about whether a party may unilaterally submit to the CIR both mandatory and permissive subjects of bargaining, or only mandatory subjects of bargaining. Id. But as the Union notes, Brent did not argue below that this provision is ambiguous; rather, it referred to the provision as having a “plain meaning.” Resp. Br. at 19 (quoting App. vol. IV, at 501 n.4, 502; App. vol. VIII, at 1222). Because Brent did not present the argument it now makes on appeal—that Section 1.02(d) is ambiguous as to permissive subjects of bargaining—and does not argue for plain-error review, it has waived that argument. See Ball v. United States, 967 F.3d 1072, 1078 (10th Cir. 2020) (“Because Plaintiffs failed to preserve their argument below and have not argued for relief under plain-error review, we consider the argument waived.”). 32 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 33

for this proposition—E.F. Etie is not binding on us. Brent’s attempt to

shoehorn its public-policy argument into a contract-interpretation argument is

unavailing.

B. Even if Section 1.02(d) were ambiguous, the presumption in favor of arbitrability would still apply because Brent has not rebutted it with forceful evidence.

Because we conclude that Section 1.02(d) unambiguously covers both

permissive and mandatory subjects of bargaining, the presumption of

arbitrability arising from a validly formed agreement to arbitrate is not

defeated. But even if we agreed with Brent’s waived appellate argument that

Section 1.02(d) is ambiguous about whether it includes permissive subjects of

bargaining, see supra n.12, we “adher[e] to the presumption and order[]

arbitration” where, as here, “the presumption is not rebutted.” Granite Rock,

561 U.S. at 301. “To rebut the presumption, the party opposing arbitration must

provide ‘forceful evidence’ that the parties intended to exclude the dispute

from arbitration.” Phillips 66, 839 F.3d at 1204 (quoting Warrior & Gulf, 363

U.S. at 584–85). Such “forceful evidence” of an exclusion may come from the

CBA itself. See Loc. 5-857 Paper, Allied-Indus., Chem. & Energy Workers Int’l

Union v. Conoco, Inc., 320 F.3d 1123, 1127 (10th Cir. 2003) (considering and

rejecting company’s assertion that language in the agreement provided positive

assurance that the arbitration clause was not susceptible to an interpretation

covering the dispute). Or it may come from “facts beyond the agreement” such

as “the terms of an employee medical plan” or “the parties’ ‘bargaining

33 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 34

history.’” Nat’l Nurses Org. Comm. v. Midwest Div. MMC, LLC, 70 F.4th 1315,

1327 (10th Cir. 2023) (Rossman, J., dissenting) (first citing Phillips 66, 839

F.3d at 1207; and then citing Loc. 7 United Food & Com. Workers Int’l Union

v. Albertson’s Inc., 963 F.2d 382 at *2 (10th Cir. 1992) (unpublished table

decision)); cf. Paper, Allied-Indus., Chem. & Energy Workers Int’l Union Loc.

No. 4-2001 v. ExxonMobil Ref. & Supply Co., 449 F.3d 616, 620 (5th Cir. 2006)

(“[E]vidence of bargaining experience can be introduced only where the

contract language is ambiguous as to arbitrability.” (emphasis omitted)).

So Brent would need to show “the most forceful evidence of a purpose to

exclude [permissive subjects of bargaining] from arbitration.” Phillips 66, 839

F.3d at 1204 (quoting Warrior & Gulf, 363 U.S. at 584–85). Brent does not

point to such evidence. Other than Brent’s real-time objections to the Union’s

unilateral submission of the dispute to CIR in the spring of 2021, Brent offers

no evidence to refute its intent in the spring of 2018 to submit “[u]nresolved

issues or disputes arising out of the failure to negotiate a renewal or

modification of this agreement” to arbitration, as memorialized in the 2018

CBA. App. vol. I, at 48. Brent has not attempted to show that the 2018 CBA’s

terms provide evidence of an intent to exclude permissive subjects of

bargaining from interest arbitration, or that any evidence beyond the CBA’s

four corners, such as the parties’ bargaining history, does so. Without such

evidence, the district court correctly concluded that, even if Section 1.02(d)

34 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 35

were ambiguous as to permissive subjects of bargaining, the presumption of

arbitrability would still apply.

IV. Brent asserts no statutory right that allows it to avoid its contractual obligations.

Brent argues that it has a statutory right to “refuse to bargain over and

accept . . . permissive subjects of bargaining” in the 2021 CBA, Op. Br. at 27,

and that because the Union can identify no “clear and unmistakable” waiver

language in the 2018 CBA, Brent did not waive that statutory right, id. at 25–26

(quoting Metro. Edison Co. v. N.L.R.B., 460 U.S. 693, 708 (1983)). 13 But

requiring a waiver in these circumstances would effectively “reverse[] the

presumption” that should apply. First Options of Chicago, 514 U.S. at 945. As

described above, the presumption of arbitrability applies in this case and Brent

did not present forceful evidence to rebut it. Because the statutory rights Brent

would need to assert to prevail in this argument do not exist, and because the

statutory rights Brent does have were not infringed, we decline to reverse the

presumption. Instead, we hold Brent to its contractual agreement to submit

unresolved issues to arbitration.

13 We note that the Court also uses the “clear and unmistakable” waiver standard to determine whether parties have agreed to submit the “gateway” issue of arbitrability to an arbitrator—but that is a different situation than here. See Dish Network, 900 F.3d at 1243–44 (“The question whether the parties have submitted a particular dispute to arbitration, i.e., the question of arbitrability, is an issue for judicial determination unless the parties clearly and unmistakably provide otherwise.” (cleaned up)).

35 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 36

A. The “clear and unmistakable” waiver standard is inapplicable here.

Brent’s “clear and unmistakable” waiver argument is misplaced because

where there is no infringement of a statutory right, no waiver is necessary. In

support of its statutory-rights argument, Brent relies on Sections 8(a)(5),

8(b)(3), and 8(d) of the NLRA, 29 U.S.C. § 158, which together make it an

unfair labor practice for an employer or labor organization to refuse to bargain

collectively and in good faith about mandatory subjects of bargaining. These

statutory provisions allow either party to charge the other with an unfair labor

practice before the NLRB if that party refuses to bargain over mandatory

subjects or insists on or bargains to impasse over permissive subjects. See 29

U.S.C. § 160(a) (empowering the NLRB “to prevent any person from engaging

in any unfair labor practice” listed in § 158); Newspaper Printing Corp., 625

F.2d at 963 (stating that “it is the Board’s duty to make the final determination

as to whether an unfair labor practice has occurred” and that “insistence to

impasse upon a non-mandatory subject of bargaining violates § 8(a)(5)”).

To bring its argument into alignment with the NLRA and caselaw, Brent

frames its statutory right as the right to “refuse to bargain over permissive

subjects.” Reply Br. at 10. But Brent’s articulation of that right is deceptive:

Brent’s asserted right is not as broad as the right it would need to assert for its

argument to work, which is the purported right to not have permissive subjects

36 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 37

of bargaining imposed in arbitration under an interest-arbitration clause to

which it agreed.

Brent cites Edison in support of its assertion that any “contractual waiver

of a protected right must be ‘clear and unmistakable.’” Op. Br. at 25 (quoting

Edison, 460 U.S. at 708); see also Capitol Steel & Iron Co. v. N.L.R.B., 89 F.3d

692, 697 (10th Cir. 1996) (“Waivers of statutory bargaining rights must be

‘clear and unmistakable’ in order for courts to enforce them.” (quoting Edison,

460 U.S. at 708)). In Edison, the Court reviewed a decision by the NLRB that

“the imposition of more severe sanctions on union officials for participating in

an unlawful work stoppage violates § 8(a)(3),” meaning that such conduct

evinced anti-union discrimination and violated the right to strike. 460 U.S. at

710; see id. at 702, 705. Indeed, the right to strike is affirmatively stated in the

NLRA. 29 U.S.C. § 163. And anti-union discrimination is prohibited as an

unfair labor practice under § 158(a)(3).

The Court recognized that “a union could choose to bargain away this

statutory protection to secure gains it considers of more value to its members.”

Edison, 460 U.S. at 707. But any such waiver must be “established clearly and

unmistakably.” Id. at 709. The Court was not convinced by the company’s

position that “the union’s silence manifested a clear acceptance of the earlier

arbitration decisions”—which imposed a “higher duty on union officials” than

other employees—because the Court did not agree “that two arbitration awards

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establish a pattern of decisions clear enough to convert the union’s silence into

binding waiver.” Id.

We emphasize here that Edison’s procedural posture was the review of an

NLRB decision: the union had charged the company with an unfair labor

practice, and the company asserted waiver (by the union) of the specific

statutory right as a defense. Id. at 697, 700. This procedural posture is a

common scenario for a court’s review of clear-and-unmistakable-waiver claims

under the NLRA. See, e.g., Int’l Bhd. of Elec. Workers, Loc. 803 v. N.L.R.B.,

826 F.2d 1283, 1285, 1287–88 (3d Cir. 1987) (finding clear-and-unmistakable

waiver of union’s right to strike in general no-strike clause and upholding

NLRB’s dismissal of union’s unfair labor practice claim); Gen. Motors Corp. v.

N.L.R.B., 700 F.2d 1083, 1088–91 (6th Cir. 1983) (enforcing NLRB decision

holding that company committed an unfair labor practice by withholding time-

study data that was “relevant and necessary to the Union’s bargaining function”

because the CBA was silent on time-study data and so the union did not clearly

and unmistakably waive that right).

The Court has since applied Edison’s clear-and-unmistakable waiver

standard to examine whether a union has waived a judicial forum for its

members’ individual claims under other statutes, not just the NLRA, by

agreeing to arbitration clauses or other alternative-dispute-resolution

provisions. See, e.g., Livadas v. Bradshaw, 512 U.S. 107, 125 (1994) (noting

that the CBA in a grocery store wages dispute did not clearly and unmistakably

38 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 39

waive store clerk’s right to bring state-law wage claims in court); Wright v.

Universal Mar. Serv. Corp., 525 U.S. 70, 72, 80 (1998) (finding that a general

arbitration clause did not meet clear-and-unmistakable waiver standard for

employee to waive judicial forum for claims under the Americans with

Disabilities Act, 42 U.S.C. §§ 12101–12213); 14 Penn Plaza LLC v. Pyett, 556

U.S. 247, 274 (2009) (holding that CBA’s arbitration clause requiring union

members to arbitrate claims arising from the Age Discrimination in

Employment Act, 29 U.S.C. §§ 621–634, is enforceable where the waiver is

clear and unmistakable). 14

We and other circuits have continued to apply the clear-and-unmistakable

waiver standard to assess a union’s waiver of its individual members’ statutory

rights. See, e.g., Mathews v. Denver Newspaper Agency LLP, 649 F.3d 1199,

1205–07 (10th Cir. 2011) (citing 14 Penn Plaza and Wright for “clear and

unmistakable” standard and finding that CBA did not explicitly waive judicial

forum for employee’s Title VII claims even though CBA empowered arbitrator

to resolve similar but contract-based anti-discrimination rights); Abdullayeva v.

Attending Homecare Servs. LLC, 928 F.3d 218, 222–23 (2d Cir. 2019) (finding

14 14 Penn Plaza established a “two-prong test” to determine when a “court may compel arbitration of a plaintiff’s federal statutory claim”: “(1) the arbitration provision clearly and unmistakably waives the employee’s ability to vindicate his or her federal statutory right in court; and (2) the federal statute does not exclude arbitration as an appropriate forum.” Jones v. Does 1-10, 857 F.3d 508, 512 (3d Cir. 2017) (citing 14 Penn Plaza, 556 U.S. at 260).

39 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 40

that CBA’s arbitration provision clearly and unmistakably waived judicial

forum for home-healthcare worker’s Fair Labor Standards Act, 29 U.S.C.

§§ 201–219, and state labor-law claims); Darrington v. Milton Hershey Sch.,

958 F.3d 188, 191 (3d Cir. 2020) (finding that CBA’s arbitration provision

clearly and unmistakably waived judicial forum for discrimination claims under

Title VII, 42 U.S.C. §§ 2000e–2000e-17, and state anti-discrimination act);

Ibarra v. United Parcel Serv., 695 F.3d 354, 357, 359–60 (5th Cir. 2012)

(finding that CBA’s arbitration provision did not clearly and unmistakably

waive judicial forum for Title VII claims and remarking that, “courts have

concluded that for a waiver of an employee’s right to a judicial forum for

statutory discrimination claims to be clear and unmistakable, the CBA must, at

the very least, identify the specific statutes the agreement purports to

incorporate or include an arbitration clause that explicitly refers to statutory

claims”). As the Second Circuit noted, “the [clear and unmistakable] standard

ensures that employees’ right to bring statutory claims in court is not waived by

operation of confusing, ‘very general’ arbitration clauses.” Abdullayeva, 928

F.3d at 223 (quoting Wright, 525 U.S. at 80).

Understanding the waiver standard’s application in these cases helps us

see the contrast here. Unlike the plaintiffs in these statutory-claims cases, Brent

is not asserting a right under which it would have sought a remedy but for its

agreement to an overly broad or vague arbitration clause, nor is it challenging

the forum in which it would have vindicated such a right. And unlike parties

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charging an unfair labor practice violation before the NLRB, Brent is not

countering a defense of waiver. As far as we can tell, Brent did not bring a

statutory claim before the NLRB charging the Union with an unfair labor

practice. 15 Nor does Brent claim that the 2018 CBA prevented it from doing so.

In West Coast Sheet Metal, Inc. v. N.L.R.B., the D.C. Circuit grappled

with a similar argument: the company in that case argued that the NLRB’s

15 Brent insinuated below and implied in its appellate briefing that the Union insisted on or bargained to impasse over permissive subjects. See App. vol. I, at 19 (“[N]either party can lawfully insist on the Article/Section being included in a successor [CBA].”); Op. Br. at 21 (“The [NLRB] . . . has ruled that insisting on permissive subjects of bargaining constitutes bad faith and violates the NLRA.”); Reply Br. at 10 (“This Court has likewise held that bargaining to impasse over a permissive subject constitutes an unfair labor practice under the NLRA.”). Brent complained in the proceedings below about the Union’s uncooperative behavior in 2021—the period between Brent’s proposing a new CBA and the Union’s referral to the CIR. See generally App. vol. II, at 150–57 (Brent’s Brief to CIR). Brent told the CIR that the Union was still not “ready to negotiate” in December 2020, three months after Brent notified the Union of its intent to terminate the 2018 CBA. Id. at 150. The Union apparently stalled the negotiations, and in March 2021 made it “clear that the Union intended to seek CIR to resolve the negotiations.” Id. at 151. The parties exchanged some emails with proposed agreements but could not come to an agreement. In April 2021, the Union notified Brent of its intent to unilaterally invoke interest arbitration. The parties eventually met after the Union’s invocation of interest arbitration, apparently to little avail. Brent summarized it thus: “[T]he Company believes that the Union’s conduct, including its March 25, 2021 letter, demonstrates the Union never intended to negotiate an agreement but rather intended to bypass negotiations and proceed directly to CIR. The Union’s conduct makes a sham out of the bargaining process and improperly attempts to make CIR party to its sham bargaining.” Id. at 155. But Brent does not directly accuse the Union of insisting on or bargaining to impasse over permissive subjects of bargaining and nothing in the record suggests that Brent charged the Union with an unfair labor practice before the NLRB. 41 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 42

decision “allowed a ‘fundamental’ statutory right to be relinquished without

requiring a showing that it was ‘clearly and unmistakably waived.’” 938 F.2d

1356, 1362 (D.C. Cir. 1991). The company had charged the union with an

unfair labor practice, alleging that the union’s “declaration of a deadlock and

submission of the dispute to [arbitration] violated the union’s duty under

section 8(b)(3) of the NLRA to bargain in good faith, and coerced and

restrained [the company] in the selection of its representatives for the purposes

of collective bargaining, thus violating section 8(b)(1)(B).” Id. at 1359 (cleaned

up). The NLRB rejected the company’s accusation that the union bargained to

impasse on the inclusion of a new interest-arbitration clause and held that a

“union does not commit an unfair labor practice by submitting deadlocks to

interest arbitration,” so long as the interest-arbitration clause arguably covers

an employer who has withdrawn from a multi-employer association in the

middle of the contract’s term, and so long as the union bargained in good faith

before submitting unresolved issues to arbitration. Id. at 1359–60. The district

court enforced the NLRB’s decision, and the company appealed. Id. at 1360.

Affirming the NLRB’s decision in International Brotherhood of

Electrical Workers, Local No. 113 (Collier Electric) as a reasonable

interpretation of the right in question, the D.C. Circuit rejected the company’s

framing of its “‘fundamental’ statutory right.” Id. at 1362 (citing Collier

Electric, 296 NLRB 1095, 1097 (1989)). The D.C. Circuit concluded that the

purported right “does not bestow upon an employer, who has withdrawn

42 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 43

midterm from a multiemployer association, any right to be free from a union’s

invocation, after bargaining in good faith to impasse, of an at least arguably

applicable interest arbitration provision.” Id. The D.C. Circuit determined that

Collier Electric “in effect decided that the employer’s right at issue is not so

sweeping as [the company] conceives it to be.” Id. So because the NLRB did

not find that the statutory right was infringed, it “had no occasion to determine

whether [the company] had ‘waived’ its section 8(b)(1)(B) right, ‘clearly and

unmistakably’ or otherwise.” Id. “[I]nstead, the key question is simply whether

[the union] infringed that right, either by unreasonably invoking the interest

arbitration clause, or by bargaining in bad faith before invoking the clause.” Id.

at 1363.

The D.C. Circuit called the company’s argument “misguided” and

rejected its reliance on Edison. See id. at 1362 & n.16. It explained that

“‘[w]aiver’ is a concept that operates to counter claims that a recognized right

has been infringed; it does not apply beyond the scope of the right that has

allegedly been invaded.” Id. at 1362. In other words, because the NLRB found

that the company’s alleged statutory right had not been infringed, and the D.C.

Circuit agreed, the court declined the company’s invitation to broaden that right

and then look for waiver of such right in the CBA. Id.

Brent’s clear-and-unmistakable-waiver argument would make more sense

if the arbitration clause prevented Brent from bringing an unfair labor practice

charge against the Union or if the NLRB had decided against Brent on such a

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charge. But without an infringement of a statutory right, or even an alleged

infringement of such a right, it makes no sense to search for a clear-and-

unmistakable waiver. Like the employer’s asserted right in West Coast Sheet

Metal, Brent’s asserted statutory right sweeps far more broadly than the statute

and caselaw on which Brent bases its alleged right. See 938 F.2d at 1360. We

therefore reject Brent’s waiver argument.

B. Brent’s statutory rights do not excuse it from its contractual obligations.

Any statutory rights Brent has under 29 U.S.C. § 158(d) or § 158(f) do

not excuse Brent from complying with its contractual agreement. 16 Our

governing precedent, McElroy’s, reinforces Borg-Warner’s rule that a party’s

contractual agreement is binding and enforceable even if that party is not under

a statutory obligation to negotiate those terms. See Borg-Warner, 356 U.S. at

16 The Union and amici NECA and International Brotherhood of Electrical Workers dispute whether Brent has any statutory rights under § 159(a) and § 158(d) because Brent and the Union had a bargaining relationship under § 158(f) for “employees engaged . . . in the building and construction industry . . . .” § 158(f); see Resp. Br. at 50–51; Amicus Br. at 18– 20. Parties with a Section 8(f) relationship have no statutory duty to negotiate a successor agreement. McElroy’s, 500 F.3d at 1097. So because Brent had no statutory § 158(d) duty to bargain over mandatory subjects, the Union argues that Brent had no statutory § 158(d) right to not bargain over permissive subjects. Brent replies that the evergreen clause kept their statutory relationship and thus their § 158(d) rights alive past the 2018 CBA’s expiration. We need not decide this issue here because the parties’ status under § 159(a) or § 158(f) does not change the parties’ contractual agreement in the 2018 CBA. And even assuming Brent is correct that it had § 158(d) rights throughout the duration of the 2018 CBA, Brent does not demonstrate that those rights were infringed. See Discussion § IV(A), supra.

44 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 45

349 (“Each of the two controversial [nonmandatory] clauses is lawful in itself.

Each would be enforceable if agreed to by the unions.” (footnote omitted)). In

McElroy’s, a company challenged the imposition of a renewed pre-hire

agreement where, as here, the parties’ relationship was governed by Section

8(f) of the NLRA, § 158(f). 500 F.3d at 1097. The company argued that it had

no statutory obligation to negotiate the new pre-hire agreement. Id. at 1096–97.

The union sought enforcement of an arbitration award directing the parties to

renew the agreement. Id. at 1095. The previous agreement had an “extension

clause” (like the evergreen clause here, Section 1.02(c)), and an interest-

arbitration clause (like Section 1.02(d)). Id. The district court confirmed the

arbitrator’s award of the new agreement and the company appealed. Id. at 1096.

We framed the ultimate question on appeal as “whether the agreement bound

[the company] to engage in interest arbitration.” Id. The company made parallel

arguments 17 to those Brent makes here, which we rejected:

While we agree that [the company] is under no statutory obligation to negotiate a renewal contract, we conclude that the terms of the pre-hire agreement—specifically the extension and interest arbitration clauses—create a contractual obligation to do so when one party timely gives notice of reopening. Nothing in the NLRA, the NLRB’s decisions, or this Court’s precedent releases [the company] from this bargained-for contractual obligation.

Id. at 1097.

17 Though the company in McElroy’s argued that it had no statutory duty to negotiate, Brent argues that it has a statutory right to not negotiate. We see these arguments as two sides of the same coin. 45 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 46

We explained that “while unilateral termination of a pre-hire collective

bargaining agreement prior to expiration is prohibited, nothing in the NLRA

prohibits either party from repudiating a pre-hire obligation upon its expiration.

Whether the contract itself permits repudiation, however, is another matter.” Id.

We also rejected the company’s argument that because it had not engaged in

active negotiations to renew the agreement, no “deadlock” triggered the

interest-arbitration clause. Id. at 1099. We reasoned that “[t]his argument is

valid only if the parties have no obligation to negotiate a renewal agreement in

the first place.” Id. We therefore affirmed the district court’s enforcement of

the renewal agreement. Id.

Here, as in McElroy’s, the interest-arbitration clause in the 2018 CBA

was a bargained-for contractual obligation that Brent freely agreed to and that,

by its own terms, either party could trigger unilaterally if renewal negotiations

broke down. As the Union points out, McElroy’s “is in harmony with other

Circuit Courts, which similarly have held employers to interest-arbitration

awards where employers have asserted the absence of a statutory bargaining

duty as justification for refusing to comply with them.” Resp. Br. at 34. Indeed,

most circuits and the NLRB have distinguished statutory from contractual

obligations and held employers to their contractual agreements to arbitrate. 18

18 See, e.g., Coca-Cola Bottling Co. of New York v. Soft Drink & Brewery Workers Union, Loc. 812, Int’l Bhd. of Teamsters, 39 F.3d 408, 410 (2d Cir. 1994) (“If the parties elect to include in their agreement a provision governing (footnote continued) 46 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 47

Brent does not attempt to distinguish or grapple with McElroy’s in its

reply brief. Nor does it wrestle with the vast weight of authority holding parties

a matter not subject to mandatory bargaining and also adopt a broad arbitration clause, nothing in [Local No. 38], labor law, or the Arbitration Act precludes arbitration of a dispute concerning the meaning or application of that provision”); Loc. Union No. 666, Int’l Bhd. of Elec. Workers v. Stokes Elec. Serv., Inc., 225 F.3d 415, 422, 425 (4th Cir. 2000) (distinguishing statutory and contractual obligations and enforcing CIR award after union invoked interest- arbitration clause despite the NLRB finding that the company’s refusal to bargain was based on good-faith doubt about the union’s majority status and no unfair labor practice occurred); Sheet Metal Workers Int’l Ass’n Local 110 Pension Tr. Fund v. Dane Sheet Metal, Inc., 932 F.2d 578, 582 (6th Cir. 1991) (observing that, though “[a]rbitration does not create a bargaining obligation, . . . the contract itself may create a bargaining obligation, just as the contract may provide for interest arbitration if the bargaining breaks down”); Sheet Metal Workers Loc. Union No. 20 v. Baylor Heating & Air Conditioning, Inc., 877 F.2d 547, 551 & n.4 (7th Cir. 1989) (distinguishing contractual and statutory duties to bargain and holding that “when the underlying controversy is primarily contractual, the Board should defer to the courts”); Local Union 257, Int’l Bhd. of Elec. Workers v. Sebastian Elec., 121 F.3d 1180, 1185–86 (8th Cir. 1997) (discussing distinction between contractual and statutory duty to bargain and holding that the interest-arbitration clause under a Section 8(f) pre- hire agreement was binding and enforceable); Beach Air Conditioning & Heating v. Sheet Metal Workers Int’l Ass’n, Loc. Union No. 102, 55 F.3d 474, 477 (9th Cir. 1995) (observing that the company had a “statutory right to walk away from the agreement upon its expiration, without submitting to arbitration” but that “[t]he contract is another matter” and affirming prior rulings enforcing interest-arbitration clauses “because the contract imposes not only a duty to accept a settlement imposed by the arbitrators once negotiations fail, but also a duty to negotiate in the first place”); see also Rd. Sprinkler Fitters Loc. Union No. 669 v. N.L.R.B., 676 F.2d 826, 831 (D.C. Cir. 1982) (“This statutory duty to bargain is independent of any obligation the employer may incur under his contract with the union.”); Collier Electric, 296 NLRB at 1098 (holding that a union is “free to seek enforcement of its contractual rights by submitting the unresolved bargaining issues to interest arbitration, and by pursuing a Section 301 suit in court, without violating Section 8(b)(3) or Section 8(b)(1)(B) of the Act” so long as the arbitration provision “arguably binds the employer to the arbitration provision” and does not “contain[] language explicitly stating that an employer who has withdrawn from the multiemployer association is not bound to interest arbitration”). 47 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 48

to their contractual agreements to arbitrate. Instead, it dismisses the Union’s

contractual-obligation arguments as “inconsequential where it must be

determined whether a protected right has been waived.” Reply Br. at 16. But as

explained above, Brent’s waiver arguments are misplaced, and Brent points to

no statutory right that trumps its contractual agreement to arbitrate.

We turn next to Brent’s public-policy arguments.

V. Imposing permissive subjects of bargaining in interest arbitration does not violate public policy.

Brent urges us to join a minority of circuits that have held that imposing

permissive subjects of bargaining in arbitration violates public policy. We first

consider the Court’s guidance for when an arbitral award may be void for

violating public policy. In general, “courts are not authorized to consider the

merits of an award,” because “[t]he federal policy of settling labor disputes by

arbitration would be undermined if courts had the final say on the merits of the

awards.” United Paperworkers Int’l Union v. Misco, 484 U.S. 29, 36 (1987)

(citation omitted). Rather, “arbitral decisions” are typically “insulat[ed] . . .

from judicial review.” Id. at 37. This highly deferential standard means that an

arbitral award is legitimate if it “draws its essence from the collective

bargaining agreement” and if “the arbitrator is even arguably construing or

applying the contract and acting within the scope of his authority.” Loc. No. 7,

United Food & Com. Workers Int’l Union v. King Soopers, Inc., 222 F.3d 1223,

48 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 49

1227 (10th Cir. 2000) (first quoting Enterprise Wheel, 363 U.S. at 597; and

then quoting Misco, 484 U.S. at 38).

But this deference to the merits of an arbitral award is subject to one

narrow exception: courts may set aside an award when it contravenes “some

explicit public policy that is well defined and dominant, and is to be

ascertained by reference to the laws and legal precedents and not from general

considerations of supposed public interests.” Id. at 43 (cleaned up). In Misco,

the Court refused to vacate an arbitral award on public-policy grounds where

the award reinstated a drug-user employee. Id. at 32–33. Examining Misco in a

later opinion, the Court framed the inquiry as not “whether [the worker’s] drug

use itself violates public policy, but whether the agreement to reinstate him

does so.” E. Associated Coal Corp. v. United Mine Workers of Am., Dist. 17,

531 U.S. 57, 62–63 (2000). It explained that the inquiry, more specifically,

should be: “[D]oes a contractual agreement to reinstate [the worker] with

specified conditions, run contrary to an explicit, well-defined, and dominant

public policy, as ascertained by reference to positive law and not from general

considerations of supposed public interests?” Id. at 63 (citation omitted).

So our inquiry here is whether the 2021 CBA’s inclusion of permissive

subjects of bargaining runs “contrary to an explicit, well-defined, and dominant

public policy, as ascertained by reference to positive law.” Id. The Union and

amici NECA and the International Brotherhood of Electrical Workers agree that

a second-generation interest-arbitration clause (also known as a self-

49 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 50

perpetuating interest-arbitration clause) would violate public policy. Second-

generation interest-arbitration clauses are “interest arbitration clauses [that are]

included within an interest arbitration award” so that the interest-arbitration

process is self-perpetuating and “a party may find itself locked into having that

procedure imposed on it for as long as the bargaining relationship endures.”

Mulvaney Mech., Inc. v. Sheet Metal Workers Int’l Ass’n., Loc. 38, 288 F.3d

491, 505 (2d Cir. 2002), vacated, rev’d on other grounds, 538 U.S. 918 (2003).

Many courts have held that public policy prevents such clauses from being

imposed. See, e.g., Loc. 58, Int’l Bhd. of Elec. Workers v. Se. Michigan

Chapter, Nat’l Elec. Contractors Ass’n, Inc. (Local 58), 43 F.3d 1026, 1032

(6th Cir. 1995) (“[A]n arbitrator may not use an interest arbitration clause as a

means of self-perpetuation, and . . . this type of ‘second generation’ interest

arbitration clause cannot be included over another party’s objection.”); Am.

Metal Prods., Inc. v. Sheet Metal Workers Int’l Ass’n, Loc. Union No. 104

(American Metal), 794 F.2d 1452, 1456–58 (9th Cir. 1986) (affirming district

court’s enforcement of CIR interest-arbitration award apart from the second-

generation interest-arbitration clause); Aldrich Air Conditioning, 717 F.2d at

459 (“[A]n interest arbitration clause is unenforceable insofar as it applies to

the inclusion of a similar clause in a new collective bargaining agreement.”);

Milwaukee Newspaper & Graphic Commc’ns Union v. Newspapers, Inc., 586

F.2d 19, 21 (7th Cir. 1978) (affirming district court’s enforcement of CIR

50 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 51

interest-arbitration award apart from the second-generation interest-arbitration

clause).

We have not yet decided that issue and we need not decide it here

because the CIR did not impose a self-perpetuating, or second-generation

interest-arbitration clause in the 2021 CBA. Rather, when the CIR imposed the

2021 CBA, it changed Section 1.02(d) of the 2018 CBA so that the parties must

mutually agree to “submit the unresolved issues to the [CIR] for adjudication.”

App. vol. IV, at 272–73. Under the 2021 CBA, if one party does not want to

“renew, modify, or extend” the agreement, or “submit the unresolved issues to

the [CIR],” then either party may terminate the agreement upon “a ten (10) day

written notice.” 19 Id. This means that the CBA is not self-perpetuating, because

19 The new 2021 CBA clauses in full are:

(d). In the event that either party, or an Employer withdrawing representation from the Chapter or not represented by the Chapter, has given a timely notice of proposed changes and an agreement has not been reached by the expiration date or by any subsequent anniversary date to renew, modify, or extend this Agreement, or to submit the unresolved issues to the [CIR], either party or such an Employer, may serve the other a ten (10) day written notice terminating this Agreement. The terms and conditions of this Agreement shall remain in full force and effect until the expiration of the ten (10) day period. (e). By mutual agreement only, the Chapter, or an Employer withdrawing representation from the Chapter or not represented by the Chapter, may jointly, with the Union, submit the unresolved issues to the [CIR] for adjudication. Such unresolved issues shall be submitted no later than the next regular meeting of the [CIR] following the expiration date of this Agreement or any subsequent anniversary date. The [CIR’s] decisions shall be final and binding. (footnote continued) 51 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 52

both parties must either agree to a new CBA, or agree to arbitration; otherwise,

one party may terminate the agreement.

Brent generates a long string cite in support of its argument that

arbitration awards that “purport to impose upon an employer a permissive

subject of bargaining” are “contrary to law and public policy.” Op. Br. at 37;

see id. at 37–39 (collecting cases). But as the Union points out, four of the

seven circuit cases Brent cites are “inapposite” because their public-policy

discussions condemn imposing second-generation interest-arbitration clauses

specifically, and do not speak to the imposition of permissive subjects of

bargaining in general. Resp. Br. at 40–41 (citing Local 58, 43 F.3d at 1032;

American Metal, 794 F.2d at 1457–58; Aldrich Air Conditioning, 717 F.2d at

459; Milwaukee Newspaper & Graphic, 586 F.2d at 21). Brent seems to argue

that because imposing a self-perpetuating interest-arbitration clause in

arbitration violates public policy, and self-perpetuating interest-arbitration

clauses are permissive subjects of bargaining, then the imposition of permissive

subjects of bargaining violates public policy. This logical fallacy is easily

dismissed.

More worthy of examination is Brent’s reliance on cases from the

Second, Fifth, and Sixth Circuits that ostensibly support its argument that “[a]s

App. vol. IV, at 272–73.

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applied to nonmandatory subjects, an interest arbitration provision is contrary

to national labor policy because it deprives the parties of their right to insist on

excluding nonmandatory subjects from the collective bargaining agreement.”

Op. Br. at 30 (quoting N.L.R.B. v. Sheet Metal Workers Int’l Ass’n, Loc. Union

No. 38 (Local Union No. 38), 575 F.2d 394, 399 (2d Cir. 1978)).

In Local Union No. 38, a union had bargained to impasse about a second-

generation interest-arbitration clause, among other provisions. Id. The Second

Circuit explained that the NLRA prohibits “insistence on a nonmandatory

subject to impasse, that is, making agreement on a nonmandatory subject a

condition to any agreement.” Id. at 398. The Second Circuit then more broadly

held that “an interest arbitration provision of a collective bargaining agreement

is void as contrary to public policy, insofar as it applies to nonmandatory

subjects.” Id.

Though that case ostensibly supports Brent’s position, the Second Circuit

has since clarified that Local Union No. 38’s rule applies only when there is no

pre-existing contract. See Coca-Cola Bottling Co. of New York v. Soft Drink &

Brewery Workers Union, Loc. 812, Int’l Bhd. of Teamsters, 39 F.3d 408, 410

(2d Cir. 1994) (explaining that Local Union No. 38’s holding “did not place a

similar limit on the arbitrability of disputes arising under an existing contract”

because “[i]f the parties elect to include in their agreement a provision

governing a matter not subject to mandatory bargaining and also adopt a broad

arbitration clause, nothing in [Local No. 38], labor law, or the Arbitration Act

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precludes arbitration of a dispute concerning the meaning or application of that

provision”). So the Second Circuit’s caselaw does not help Brent. 20

We next consider Brent’s reliance on Fifth Circuit caselaw, namely E.F.

Etie, 1 F.3d at 1464. Though the Fifth Circuit in E.F. Etie discussed self-

perpetuating interest-arbitration clauses as against national labor policy, it also

extended that rule to hold more broadly that, “[i]nsofar as an interest arbitration

proceeding forced a party to put nonmandatory issues on the table, it was

unenforceable as contrary to that policy.” Id. at 1476. E.F. Etie cited Local

Union No. 38 in support, and, by extension, Allied Chemical, on which Local

Union No. 38 also relied. See E.F. Etie, 1 F.3d at 1467. But Allied Chemical

does not support the conclusion Brent draws from these cases.

In Allied Chemical, the Court decided that an employer’s unilateral

midterm modification of retiree benefits for already-retired employees was not

an unfair labor practice because such modification did not concern a mandatory

subject of bargaining. 404 U.S. at 159–60, 185. The Court did not discuss

20 The Union also critiques Local Union No. 38 as relying on a mistaken reading of N.L.R.B. v. Columbus Printing Pressmen & Assistants’ Union No. 252 (Columbus Printing Pressmen), 543 F.2d 1161, 1169 (5th Cir. 1976). As the Union points out, the Second Circuit undermined its own reliance on Columbus Printing Pressmen, because, though the Second Circuit cited it for the proposition that the NLRB “espoused the position we now adopt,” it later said that the Fifth Circuit “did not reach the question of the validity of interest arbitration clauses as applied to nonmandatory subjects in general, but did hold such clauses invalid as applied to one of the nonmandatory issues involved in this case, to wit, renewal of the interest arbitration provision itself.” Local Union No. 38, 575 F.2d at 399. 54 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 55

interest arbitration, and neither did it state that interest arbitration of

permissive subjects conflicted with national labor policy. So E.F. Etie merely

repeated Local Union No. 38’s mistaken reading of Allied Chemical. 21 We agree

with the district court that “Brent Electric’s reading of E.F. Etie and Local

Union 38 to prohibit interest arbitration of all non-mandatory subjects is

incorrect because neither case held that interest arbitration could not resolve

non-mandatory subjects when the parties had agreed to interest arbitration for

non-mandatory subjects.” Brent Electric, 2023 WL 5750484, at *9.

21 Local Union No. 38 extrapolated its policy rule from an overbroad reading of Allied Chemical: “The importance of preserving parties’ freedom to exclude nonmandatory subjects from labor agreements is acknowledged by the rule that ‘[b]y once bargaining and agreeing on a permissive subject, the parties . . . do not make the subject a mandatory topic of future bargaining.’” 575 F.2d at 399 (quoting Allied Chemical, 404 U.S. at 187). E.F. Etie also cited Ninth and Eighth Circuit cases in support of its rule. See 1 F.3d at 1476 (citing Am. Metal Prods., Inc. v. Sheet Metal Workers Int’l Ass’n, Loc. No. 104 (American Metal), 794 F.2d 1452, 1467 (9th Cir. 1986); Sheet Metal Workers’ Int’l Ass’n, Loc. 14 v. Aldrich Air Conditioning, Inc., 717 F.2d 456, 459 (8th Cir. 1983)). But neither of those cases help Brent here. In American Metal, the Ninth Circuit held that an arbitrator cannot impose an interest-arbitration clause over the objection of the parties to the arbitration. 794 F.2d at 1456–57. American Metal did not concern enforcement of an interest-arbitration clause that was mutually agreed upon by the parties, as it was here. See generally id. at 1453– 58. Similarly, the Eighth Circuit in Aldrich Air Conditioning held that “an interest arbitration clause is unenforceable insofar as it applies to the inclusion of a similar clause in a new collective bargaining agreement.” 717 F.2d at 459. Like American Metal, Aldrich Air Conditioning concerned a new agreement and not an interest-arbitration provision that the parties had agreed to; these cases predominantly reflect the concern that self-perpetuating interest-arbitration clauses not be imposed in arbitration over a party’s objection. So, “[o]nce included in a collective bargaining agreement, however, interest arbitration clauses generally are enforceable.” Aldrich Air Conditioning, 717 F.2d at 458.

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Finally, Brent lists Sheet Metal Workers, Local Union No. 24 v.

Architectural Metal Works, Inc. (Architectural Metal), 259 F.3d 418 (6th Cir.

2001). The real dispute in Architectural Metal was whether an extension clause

and self-perpetuating interest-arbitration provision could be imposed in

arbitration. See id. at 430. The Sixth Circuit leaned on a prior case to conclude

that any interest-arbitration, extension clause, “and/or any other covenant or

condition which did not directly implicate a mandatory subject of collective

bargaining . . . shall be deemed null, void, and unenforceable against [the

company].” Id. at 431. But that prior case (Local 58) in turn relied on Local

Union No. 38 for the general proposition that “interest arbitration as to

nonmandatory subjects is ‘void as contrary to public policy.’” Local 58, 43

F.3d at 1032 (quoting Local Union No. 38, 575 F.2d at 398).

This line of caselaw collapses under any real scrutiny: If we remove from

Local Union No. 38, E.F. Etie, and Architectural Metal any discussion of self-

perpetuating interest-arbitration provisions, those cases lack the rigorous

inquiry into positive law that the Court in Eastern Associated Coal demands to

justify a blanket rule prohibiting all permissive subjects of bargaining from

being imposed in interest arbitration. See 531 U.S. at 62–63. Paraphrasing

Eastern Associated Coal, “[D]oes [an arbitral award imposing permissive

subjects of bargaining in a CBA] run contrary to an explicit, well-defined, and

dominant public policy, as ascertained by reference to positive law and not

from general considerations of supposed public interests?” Id. at 63. We easily

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conclude that it does not. Brent’s cited cases do not reference any “explicit,

well-defined, and dominant public policy” to prevent a party from contractually

agreeing to arbitration that may impose permissive subjects of bargaining.

Indeed, our own precedent and the vast weight of caselaw compel the opposite

conclusion: dominant public policy favors holding parties to their contractually

agreed obligations. See, e.g., Borg-Warner, 356 U.S. at 349 (“[E]ach party is

free to bargain or not to bargain, and to agree or not to agree” and “[e]ach of

the two controversial [nonmandatory] clauses . . . would be enforceable if

agreed to by the unions.”); McElroy’s, 500 F.3d at 1097 (“Nothing in the

NLRA, the NLRB’s decisions, or this Court’s precedent releases McElroy’s

from this bargained-for contractual obligation.”); Collier Electric, 296 NLRB

at 1098 (holding that a union is “free to seek enforcement of its contractual

rights by submitting the unresolved bargaining issues to interest arbitration,

and by pursuing a Section 301 suit in court, without violating Section 8(b)(3) or

Section 8(b)(1)(B) of the Act”).

We acknowledge that Brent’s public-policy argument may be colorable.

But the Second Circuit has disavowed Brent’s interpretation of Local Union

No. 38, and the Fifth and Sixth Circuit decisions Brent cites rest on dubious

foundations. So we decline Brent’s invitation to join this circuit minority.

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VI. The CIR did not exceed its authority under the Federal Arbitration Act.

Under the Federal Arbitration Act, 9 U.S.C. §§ 1–16, a court may vacate

an arbitration award where “the arbitrators exceeded their powers, or so

imperfectly executed them that a mutual, final, and definite award upon the

subject matter submitted was not made.” Id. § 10(a)(4). Because we do not

agree with Brent that it has a statutory right to avoid having permissive

subjects of bargaining imposed in arbitration when it agreed to interest

arbitration in the 2018 CBA, and because we reject Brent’s public-policy

arguments, we conclude that the CIR did not exceed its powers.

CONCLUSION

We affirm the district court’s dismissal of Brent’s complaint and grant of

the Union’s motion for summary judgment confirming the CIR award.