International Brotherhood v. Detroit Free Press, Inc.

Filing

OPINION filed [1487954] (Pages: 6) for the Court by Judge Randolph [13-7033]

USCA Case #13-7033

Document #1487954

Filed: 04/11/2014

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 25, 2014

Decided April 11, 2014
No. 13-7033

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
LOCAL 1200,
APPELLANT
v.
DETROIT FREE PRESS, INC., A SUBSIDIARY OF GANNETT CO.,
INC., DOING BUSINESS AS WUSA-TV,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-00484)

Robert E. Paul argued the cause and filed the briefs for
appellant.
Donald J. Munro argued the cause and filed the brief for
appellee.
Before: GRIFFITH, Circuit Judge, and EDWARDS and
RANDOLPH, Senior Circuit Judges.
Opinion for the court filed by Senior Circuit Judge
RANDOLPH.

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RANDOLPH, Senior Circuit Judge: The International
Brotherhood of Electrical Workers, Local 1200 serves as the
exclusive bargaining representative for “technicians” employed
by WUSA-TV, a Washington, D.C.-based television station.
Between December 29, 2008, and December 31, 2010, the union
and the station operated under a collective bargaining
agreement. In November 2010, with the agreement set to expire,
the parties began negotiating a successor agreement. Although
they extended the 2008 agreement through February 2011,1 the
station refused further extensions. Thus, the parties operated
without a collective bargaining agreement until they negotiated
a successor agreement, which took effect on February 9, 2012.
The 2008 and 2012 agreements contain essentially identical
grievance and arbitration provisions. If a dispute arises the
parties first seek to resolve it through “informal” and then
“formal” grievance conferences. If conferences do not resolve
the grievance, then “either party may demand arbitration by
written notice.” Arbitration is “final and binding on both
parties.”
The two agreements also contain nearly identical provisions
concerning layoffs. Before laying off an employee, the station
and the union “must first bargain . . . in good faith on
alternatives to avoid a layoff.” If layoffs occur, “[p]art-time
Technicians shall be laid off prior to the lay-off of any full-time
Technicians,” and “[l]ayoffs on account of reduction of staff . . .
shall be made in inverse order of seniority.” The latter provision
includes a caveat: “the Station may . . . lay off an employee[] of
higher seniority” if not doing so “would have an adverse effect
on the operation of the Station when all factors are considered.”

1

The parties dispute precisely when the extension expired, but
they agree that it did not survive beyond the end of February 2011.

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The station must give two weeks’ written notice before laying
off an employee.
The present dispute began on January 30, 2012, when the
station, by letter, notified technician Karen Peterson that “[her]
position is being eliminated effective today . . . in accordance
with the IBEW collective bargaining agreement.” At the time
she was terminated, Peterson was the most senior technician
working at the station. More than two weeks later, on February
16, the union representative filed a grievance alleging that
“Peterson’s position was unjustly terminated on 1/30/12” in
“violat[ion of] Section 4.17.F [sic] and all other relevant Articles
of the [2008 agreement].” Efforts to resolve the grievance
through conferences failed, and the station refused to arbitrate
the dispute.
The union then filed a complaint in the district court
seeking to compel arbitration. The complaint alleged that by
laying off Peterson, the station breached its contractual
obligations to [1] bargain in good faith before layoffs, [2] lay off
part-time technicians first, and [3] lay off technicians in inverse
order of seniority. The union argued that Peterson’s grievance
was arbitrable under both the 2008 and the 2012 agreements.
The district court granted summary judgment for the station.
Int’l Bhd. of Elec. Workers, Local 1200 v. Detroit Free Press,
Inc., 923 F. Supp. 2d 199 (D.D.C. 2013). Because the grievance
did not “arise under” the 2008 agreement, and the 2012
agreement was not yet in effect, the district court concluded that
the station was not obligated to arbitrate. Id. at 203. The union
timely appealed.
Generally, if a collective bargaining agreement contains an
arbitration clause then courts presume disputes between the
parties are arbitrable. See, e.g., United Steelworkers of Am. v.
Warrior & Gulf Nav. Co., 363 U.S. 574, 582-83 (1960). But that
presumption is “limited to disputes arising under the contract.”

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Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 205 (1991); see
id. at 209. A grievance filed after the expiration of a collective
bargaining agreement “arise[s] under” that agreement and is
therefore arbitrable only if: [1] “it involves facts and
occurrences that arose before expiration,” [2] a post-expiration
action “infringes a right that accrued or vested under the
agreement,” or [3] “under normal principles of contract
interpretation, the disputed contractual right survives expiration”
of the agreement. Id. at 205-06.
Here, the union argues that Peterson’s grievance is
arbitrable under the 2008 agreement because the company
violated accrued seniority protections by laying her off. We have
previously stated that “[s]eniority is wholly a creation of the
collective agreement and does not exist apart from that
agreement.” Baker v. Newspaper & Graphic Commc’ns Union,
Local 6, 628 F.2d 156, 159-60 (D.C. Cir. 1980) (quoting Local
1251, UAW v. Robertshaw Controls Co., 405 F.2d 29, 33 (2d
Cir. 1968) (en banc)). Even if seniority in the abstract could vest
or accrue, the rights at issue here—seniority-based protections
against layoffs—would not. The 2008 agreement allows the
station to lay off senior technicians first if following seniority
“would have an adverse effect on the operation of the Station
when all factors are considered.” In Litton, the Court considered
a seniority provision that allowed more senior employees to be
laid off unless “other things such as aptitude and ability are
equal.” 501 U.S. at 209. The Litton court held that that provision
was not a vested or accrued right because factors such as
aptitude and ability “do not remain constant, but change over
time.” Id. at 210. So too here, where “all factors” “adversely
[a]ffect[ing]” the station are constantly in flux. As in Litton,
these seniority provisions do not “freeze any particular order of
layoff.” Id. Consequently, they do not create vested or accrued
rights.

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Nor do the qualified seniority protections against layoffs
contained in the 2008 agreement survive expiration “under
normal principles of contract interpretation.” Id. at 206. By its
terms, the agreement “bec[a]me effective on December 29,
2008, and shall remain in effect until midnight December 31,
2010”—or, as extended, February 2011. “The most natural
reading of a contract that has defined endpoints . . . is that terms
in the contract apply to events between [those endpoints].” Des
Moines Mailers Union, Teamsters Local No. 358 v. NLRB, 381
F.3d 767, 770 (8th Cir. 2004). The union devotes much effort to
arguing that post-expiration coverage need not be explicit. But
the language and structure of the agreement do not even imply
that the seniority protections against layoffs in this contract
survive expiration. Instead, the union relies entirely on extrinsic
evidence surrounding Peterson’s termination to dispute the
agreement’s natural meaning. That is inadequate. We will not
“use [] extrinsic evidence to create such obligations nowhere
alluded to in the contract” and “unjustifiably deprive the parties
of the limitation of liabilities that is implicit in . . . a written
contract having a definite expiration date.” Bidlack v.
Wheelabrator Corp., 993 F.2d 603, 607-08 (7th Cir. 1993) (en
banc).
Moreover, the union’s extrinsic evidence is itself
ambiguous. The letter terminating Peterson’s employment said
the layoff was “undertaken in accordance with the IBEW
collective bargaining agreement.” The union claims that by
referring to the agreement in its letter and in contemporaneous
oral statements, the station acknowledged that the agreement
survived. But the Station had good reason to act “in accordance
with” the agreement, even post-expiration. The National Labor
Relations Act requires that a company continue to comply with
certain “terms and conditions” (not including arbitration clauses)
of expired collective bargaining agreements. Litton, 501 U.S. at
198-200. Acting otherwise may constitute an unfair labor
practice, subjecting the company to a lawsuit. Id. To avoid that

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result, companies often continue to operate according to expired
agreements. Doing so does not indicate that the agreement
itself—the only source of any duty to arbitrate—remained in
effect, but only that the NLRB will require a company to
continue to adhere to certain obligations. See, e.g., Int’l Bhd. of
Teamsters, Local Union 1199 v. Pepsi-Cola Gen. Bottlers, Inc.,
958 F.2d 1331, 1335-37 (6th Cir. 1992); see also Litton, 501
U.S. at 200-01. With only ambiguous extrinsic evidence, the
union has failed to disprove the 2008 agreement’s natural
interpretation.
The union also argues that Peterson’s grievance is arbitrable
under the 2012 agreement. We cannot see how. The letter
Peterson received stated that she was terminated on January 30,
2012. The grievance form filed by the union confirms that she
was in fact “terminated on 1/30/12.” Because no agreement was
in effect on that date, the station was not obliged to provide her
with two weeks’ notice. Thus the layoff was effective on the
date Peterson was notified. Nothing in the 2012 agreement
suggests that it requires arbitration of grievances arising before
it became effective.2 And the union cannot bootstrap itself into
a longer contract duration by waiting to file its grievance over a
pre-contractual dispute.
The judgment of the district court is
Affirmed.

2

Even if two weeks’ notice were required on January 30, that
would not somehow convert an immediate termination into a
termination two weeks later. Rather, by terminating Peterson on that
date, the station would simply have breached its notice obligation.

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