Ibew Local 1547 v. Alaska Communications Systems

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 12, 2021
• Docket: 20-35021
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 12 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

INTERNATIONAL BROTHERHOOD OF No. 20-35021 ELECTRICAL WORKERS, LOCAL 1547, AFL-CIO, D.C. No. 3:19-cv-00160-SLG

Plaintiff-Appellee, MEMORANDUM* v.

ALASKA COMMUNICATIONS SYSTEMS HOLDINGS, INC.,

Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, District Judge, Presiding

Submitted October 7, 2021** Seattle, Washington

Before: PAEZ, M. SMITH, and NGUYEN, Circuit Judges.

Defendant Alaska Communications Systems Holdings, Inc. (“Alaska

Communications”) and Plaintiff International Brotherhood of Electrical Workers,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Local 1547, AFL-CIO (“IBEW”) entered into a collective bargaining agreement

(“CBA” or “the Agreement”) that governs the terms and conditions of certain

individuals employed by Alaska Communications. Alaska Communications

refused to grant voluntary recognition under the CBA to a group of employees who

work in Oregon, contending that the CBA’s scope is limited to Alaska. IBEW

filed a grievance and sought to arbitrate the grievance, but Alaska Communications

refused, arguing it was outside the scope of the CBA’s arbitration provision.

Relying on Dennis L. Christensen General Building Contractor, Inc. v.

General Building Contractor, Inc., 952 F.2d 1073 (9th Cir. 1991), the district court

concluded that the parties’ dispute was arbitrable because it involved interpreting

the CBA’s substantive provisions. Reviewing de novo, Westinghouse Hanford Co.

v. Hanford Atomic Metal Trades Council, 940 F.2d 513, 516 (9th Cir. 1991), we

agree and affirm.1

The parties dispute the scope of the CBA’s arbitration provision in Section

4.4. In relevant part, Section 4.4 provides that the arbitrator’s authority “shall be

limited to determining questions directly involving the interpretation or application

of specific provisions of [the CBA], and no other matter shall be subject to

arbitration hereunder.” The scope of the Agreement as a whole is defined in

Section 1.3 and provides:

1 We have jurisdiction under 28 U.S.C. § 1291.

2 This Agreement is applicable, within the State of Alaska, to all work within the scope of those job descriptions listed in the wage schedule in Appendix 1 and will be applicable to other positions or job classifications as agreed between the Union and [the] Company.

Alaska Communications contends that Section 1.3 specifically exempts disputes

regarding out-of-state work from the Agreement’s broad grievance and arbitration

provisions.

In determining whether a grievance is arbitrable, our function is limited to

interpretation of the arbitration clause, rather than the substantive provisions of the

Agreement. Dennis L. Christensen, 952 F.2d at 1077 (first citing Haig Berberian,

Inc. v. Cannery Warehousemen, 535 F.2d 496, 499 (9th Cir. 1976) (per curiam);

and then citing Westinghouse Hanford Co., 940 F.2d at 521). The arbitration

clause in the CBA is broad, covering all disputes related to the terms of the

Agreement, including disputes about “the interpretation or application of [a]

specific provision of [the] Agreement.” Because there is no express provision in

the CBA excluding a particular grievance from arbitration, only “the most forceful

evidence of a purpose to exclude the claim from arbitration” can overcome the

presumption in favor of arbitration. AT&T Techs. v. Commc’ns. Workers of Am.,

475 U.S. 643, 650 (1986) (quoting United Steelworkers of Am. v. Warrior & Gulf

Nav. Co., 363 U.S. 574, 584-85 (1960)).

Alaska Communications presents no such evidence. It generally argues that

Section 1.3 of the CBA, which provides that the “Agreement is applicable within

3 the state of Alaska,” precludes arbitration of any dispute concerning employees

outside of Alaska. We rejected a similar argument involving a geographic scope

provision in Dennis L. Christensen. 952 F.2d at 1077–78. There, we held that we

must “look only to the contract’s arbitration clause, rather than to the substantive

provisions of the agreement, to determine whether a dispute is arbitrable.” Id. at

1077. Section 1.3 does not mention arbitration at all, let alone expressly carve out

the disputed issue from the CBA’s grievance and arbitration provisions.

Alaska Communications attempts to distinguish Dennis L. Christensen

because that case involved a “modification” clause. But the parties’ CBA also

contains a modification clause, specifying the circumstances when the Agreement

will be expanded to cover certain employees. Alaska Communications further

attempts to distinguish Dennis L. Christensen by arguing that modifications to the

labor agreements in that case concerned the geographic limits of the agreements’

coverage. There, however, we also held that the geographic coverage provisions of

the agreements at issue did “not establish that disagreements in interpreting the

modification provision of the master labor agreement were not to be arbitrated like

any other disputes concerning the interpretation or application of that provision.”

952 F.2d at 1077 (emphasis added) (quotation marks omitted). Alaska

Communications cites no caselaw supporting its contention that a provision

governing the scope of an agreement restricts the reach of its arbitration provision.

4 Fundamentally, the parties dispute whether a particular provision of the

CBA can be invoked for out-of-state employees. That is a dispute about “the

interpretation or application of [a] specific provision of [the] Agreement,” and thus

it is covered by the CBA’s arbitration clause. See id.; Haig Berberian, 535 F.2d at

498–99.

AFFIRMED.2

2 Appellee’s Request for Judicial Notice (Dkt. No. 35) is denied as moot because we have resolved this appeal in their favor without considering the additional documents.