Local 38N Graphic etc. v. St. Louis Post Dispatch

Filing

OPINION FILED - THE COURT: ROGER L. WOLLMAN, JAMES B. LOKEN and LAVENSKI R. SMITH. Roger L. Wollman, Authoring Judge (PUBLISHED) [3787070] [10-2715]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-2715
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Local 38N Graphic Communications
Conference/IBT,
Appellant,
v.
St. Louis Post-Dispatch, LLC,
a Missouri Corporation,
Appellee.

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* Appeal from the United States
* District Court for the
* Eastern District of Missouri.
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Submitted: January 11, 2011
Filed: May 13, 2011
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Before WOLLMAN, LOKEN, and SMITH, Circuit Judges.
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WOLLMAN, Circuit Judge.
Local 38N Graphic Communications Conference/IBT (Local 38N) appeals from
the district court’s1 dismissal of its complaint for failure to state a claim. We affirm.

1

The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.

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I. Background
Local 38N represents the employees of St. Louis Post-Dispatch, LLC (PostDispatch). Local 38N and Post-Dispatch entered into two collective bargaining
agreements covering retiree healthcare benefits that contained dispute resolution
procedures. The first agreement was effective from November 1994 through April
2002 (the 2002 Agreement). The second agreement was effective from April 2002
through April 2006 (the 2006 Agreement). In both agreements, Article XI, Section 4
provides that “[g]rievances which arise under this Agreement but which are based on
events which occur after its termination are expressly excluded from the jurisdiction
of the arbitrator.”
In October 2008, Post-Dispatch unilaterally modified certain retirees’
healthcare coverage by increasing the premiums for employees who retired during the
term of the 2002 Agreement. Local 38N filed a grievance for the matter. PostDispatch refused to arbitrate, whereupon Local 38N brought suit to compel arbitration
pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and
28 U.S.C. § 1337. Post-Dispatch moved to dismiss the amended complaint. Before
the district court ruled on the motion, Post-Dispatch again unilaterally modified the
healthcare coverage, eliminating it for Medicare-eligible retirees and requiring those
retirees who were not Medicare-eligible to pay 100% of the healthcare premium.
Local 38N filed another grievance for the retirees who had retired under the 2002 and
2006 Agreements and amended its first amended complaint to include this grievance.
Post-Dispatch moved to dismiss the second amended complaint.
The district court dismissed the second amended complaint, concluding that the
matters were not arbitrable because they occurred after the agreements terminated and
were thus not within the scope of arbitrability as defined in Article XI, Section 4.
Local 38N asserts that the disputes must be arbitrated. It contends that the temporal
limitation in the agreements’ arbitration provisions is a procedural question and
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whether the agreement had terminated is a question of validity. Both matters, it
contends, are subject to arbitration.
II. Discussion
We review de novo the district court’s grant of a motion to dismiss an action for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). O’Neil v.
Simplicity, Inc., 574 F.3d 501, 503 (8th Cir. 2009). We accept Local 38N’s factual
allegations as true, but the allegations must supply facts sufficient to state a claim that
is plausible on its face. Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
An arbitration clause may establish a presumption of arbitrability, but the
presumption may be overcome by an express provision excluding a particular
grievance from arbitration or by persuasive evidence of a purpose to exclude the claim
from arbitration. AT & T Techs., Inc. v. Commc’ns Workers, 475 U.S. 643, 650
(1986) (“[T]here is a presumption of arbitrability in the sense that ‘[a]n order to
arbitrate the particular grievance should not be denied unless it may be said with
positive assurance that the arbitration clause is not susceptible of an interpretation that
covers the asserted dispute. Doubts should be resolved in favor of coverage.’”
(quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 58283 (1960))). Whether a party agreed to arbitrate a particular dispute is a question of
substantive arbitrability within the exclusive discretion of the courts. See id. at 649;
see also Express Scripts, Inc. v. Aegon Direct Mktg. Servs., Inc., 516 F.3d 695, 699701 (8th Cir. 2008). Issues of procedural arbitrability are within an arbitrator’s
discretion, including waiver, delay, or a similar defense to arbitrability. See Int’l
Ass’n of Bridge, Structural, Ornamental & Reinforcing Ironworkers, Shopman’s
Local 493 v. EFCO Corp. & Constr. Prods., 359 F.3d 954, 956 (8th Cir. 2004).

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Local 38N asserts that nothing within the 2002 and 2006 Agreements rebuts the
presumption favoring arbitration. Local 38N relies on Nolde Bros., Inc. v. Local No.
358, Bakery & Confectionery Workers Union, AFL-CIO, arguing that the
presumption of arbitrability, along with the broad definition of grievances, requires
that arbitration must occur in this case. 430 U.S. 243, 252-53 (1977) (“However, even
though the parties could have so provided, there is nothing in the arbitration clause
that expressly excludes from its operation a dispute which arises under the contract,
but which is based on events that occur after its termination.”). The arbitration clause
in Nolde, however, did not include an express exclusion of certain grievances. Unlike
the arbitration clause in Nolde, the 2002 and 2006 Agreements expressly exclude from
arbitration all grievances that arise under the agreement that are based on events which
occur after its termination. J.A. 20, 50 (“Grievances which arise under this Agreement
but which are based on events which occur after its termination are expressly excluded
from the jurisdiction of the arbitrator.” (emphasis added)). Accordingly, we conclude
that Nolde is inapposite to our interpretation of the scope of the arbitration provision.
Local 38N asserts that the temporal limitation on the duty to arbitrate in the
agreements is procedural and must be submitted to an arbitrator. See Howsam v.
Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002). It contends that the limitation is
indistinguishable from the temporal limitation in Howsam, which provided that “no
dispute shall be eligible for submission to arbitration where six (6) years have elapsed
from the occurrence or event giving rise to the dispute.” Id. at 81 (alterations, citation,
and internal quotation marks omitted). The Howsam’s limitation is procedural, id. at
85, and analogous to a statute of limitation, not a substantive question of whether a
dispute is within the scope of the matters the parties previously agreed to arbitrate.
The temporal limitation in Article XI, Section 4, defines which disputes are within the
scope of the arbitration agreement, not within what period of time the dispute must be
brought for arbitration. Thus, the temporal limitation in Article XI, Section 4, is
substantive, not procedural.

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Whether a particular type of grievance is within the parties’ agreement to
arbitrate is the court’s responsibility to decide, unless clearly and explicitly reserved
for an arbitrator. See id. at 84 (“Similarly, a disagreement about whether an
arbitration clause in a concededly binding contract applies to a particular type of
controversy is for the court.”). Local 38N seeks to arbitrate disputes that arose based
on events that occurred after the agreements terminated. We agree with the district
court that these disputes are beyond the scope of the matters the parties previously
agreed to arbitrate. See United Steelworkers, 363 U.S. at 582 (“For 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.”). Accordingly, we conclude that the district
court properly dismissed Local 38N’s motion to compel arbitration because it failed
to state a claim that was plausible on its face.2
Finally, Local 38N contends that Post-Dispatch’s position that the agreements
have terminated is actually a challenge to the validity of the agreements and thus
requires arbitration. See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440,
449 (2006) (“We reaffirm today that, . . . , a challenge to the validity of the contract
2

Local 38N contends that the retiree healthcare rights were vested and that
vested rights provide an independent ground to compel post-expiration arbitration.
In Litton, the Supreme Court interpreted an unlimited arbitration provision as
permitting post-expiration arbitration for rights that had arisen under the agreement
and had vested or accrued. Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 205-06
(1991). Post-Dispatch asserts that the retiree health benefits had not vested, that the
benefit provisions were limited to the duration of the agreement, and that the
arbitration clauses exclude post-expiration arbitration. Crown Cork & Seal Co., Inc.
v. Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO, 501 F.3d 912, 918 (8th
Cir. 2007). The district court did not reach the issue of vested rights because it
determined that the 2002 and 2006 Agreements’ arbitration provisions expressly
excluded the disputes and that the agreements’ arbitration provisions were
distinguishable from the unlimited arbitration provision in Litton. Because we also
conclude that Local 38N’s disputes are expressly excluded from the scope of
arbitrable matters, we need not reach this issue.
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as a whole, and not specifically to the arbitration clause, must go to the arbitrator.”).
Moreover, Local 38N asserts that the date at which the agreements terminated is
uncertain and thus an issue for arbitration. See N.J. Bldg. Laborers Statewide Benefits
Fund v. Am. Coring & Supply, 341 F. App’x 816, 820 (3d Cir. 2009) (unpublished)
(requiring arbitration to determine whether employer successfully invoked termination
clause because parties contested termination date). Post-Dispatch asserts that rather
than contesting the agreements’ validity, it is seeking to enforce the agreements’
provisions. Post-Dispatch asserts that Local 38N conceded in its second amended
complaint that the 2002 Agreement terminated on April 17, 2002 and that the 2006
Agreement terminated on April 1, 2006, and argues that it would be a “meaningless
exercise” to refer these issues to an arbitrator. We agree. Accordingly, we reject
Local 38N’s contention that it is necessary to submit to an arbitrator the issue of the
agreements’ termination dates.
III. Conclusion
The judgment is affirmed.
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