Local 387 Ibew v. Navopache Elec. Coop., Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 12, 2020
• Docket: 19-15588
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 12 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LOCAL 387 INTERNATIONAL No. 19-15588 BROTHERHOOD OF ELECTRICAL WORKERS, D.C. No. CV-18-04108-PHX-SRB Plaintiff-Appellee,

v. MEMORANDUM*

NAVOPACHE ELECTRIC COOPERATIVE, INC.,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding

Submitted May 8, 2020** Portland, Oregon

Before: WATFORD and HURWITZ, Circuit Judges, and BATTAGLIA, *** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Anthony J. Battaglia, United States District Judge for the Southern District of California, sitting by designation. Local 387 International Brotherhood of Electrical Workers (the “Union”) and

Navopache Electrical Cooperative, Inc. entered into a three-year collective

bargaining agreement (“CBA”) in 2015. During bargaining in 2018 regarding

proposed amendments to the new CBA, the Union and Navopache were unable to

reach agreement on the CBA’s management rights’ clause. On November 16, 2018,

the Union filed a Petition to Compel Arbitration (the “Petition”). The district court

granted the Petition and referred the matter to interest arbitration. Navopache now

timely appeals. See 28 U.S.C. § 1291. We have jurisdiction of the appeal under 28

U.S.C. § 1291 and affirm.

Although we agree with the district court that the relevant language of the

CBA is not “the epitome of draftsmanship,” we also agree that it requires the parties

to submit this dispute to interest arbitration. Although the words “interest

arbitration” do not appear in the CBA, Article VII, Section 5(b) clearly contemplates

the arbitration of such disputes: “Except as to matters submitted to arbitration

regarding matters arising out of differences concerning amendments to this

Agreement at termination, the Arbitrator’s authority shall be limited to the

interpretation and application of this Agreement.” Moreover, Navopache concedes

that the parties agreed to interest arbitration during the term of the CBA under Article

VIII, Section 2, and Article XI provides that “this Agreement shall remain in full

force and in effect during such period of negotiation as well as during the period of

2 arbitration provided in Article VII, should any amendment be submitted for

arbitration as therein provided.” See Beach Air Conditioning & Heating, Inc. v. Sheet

Metal Workers Int’l Ass’n, 55 F.3d 474, 476 (9th Cir. 1995) (“[T]he mere expiration

of an agreement doesn’t terminate all obligations imposed by it, as interest

arbitration clauses survive expiration of the agreement.”).

Navopache asserts that the CBA provisions should be viewed only as

permissive – meaning that disputes are only submitted to interest arbitration if a

party first obtains the other party’s consent. However, a presumption of arbitrability

exists in the instant litigation. See AT&T Techs., Inc. v. Commc’ns Workers of Am.,

475 U.S. 643, 650 (1986); Nolde Bros., Inc. v. Local No. 358, Bakery &

Confectionery Workers Union, 430 U.S. 243, 254–55 (1997); see also Hotel & Rest.

Emps., & Bartenders Union, Local 703 v. Williams, 752 F.2d 1476, 1479 (9th Cir.

1985). And, that is not what Article VII says; it refers to “matters submitted to

arbitration” without any requirement that both parties agree to submission. See Trs.

of S. Cal. IBEW-NECA Pension Tr. Fund v. Flores, 519 F.3d 1045, 1047 (9th Cir.

2008); see also Alday v. Raytheon Co., 693 F.3d 772, 784 (9th Cir. 2012) (“As in all

contracts, the collective bargaining agreement’s terms must be construed so as to

render none nugatory and avoid illusory promises.” (quoting Smith v. ABS Indus.,

Inc., 890 F.2d 841, 845 (6th Cir. 1989))). There is no language in the CBA that

requires a separate standalone agreement as a prerequisite to interest arbitration once

3 the term of the CBA has expired. The district court correctly read the CBA as

empowering an arbitrator to resolve the parties’ differences concerning amendments

to the CBA and did not err in compelling interest arbitration.

AFFIRMED.