United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC v. Kentucky West Virginia Gas Company, LLC. et al

Filing 35

MEMORANDUM OPINION & ORDER: that the Unions motion for summary judgment, R. 27 and R. 28 , is GRANTED, and Equitables motion for summary judgment, R. 29 , is DENIED. It is further ORDERED that this matter is REFERRED to arbitration as provided in the collective bargaining agreement. Signed by Judge Amul R. Thapar on 4/18/11.(MJY)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
UNITED STEEL, PAPER AND
FORESTRY, RUBBER,
MANUFACTURING, ENERGY,
ALLIED INDUSTRIAL AND SERVICE
WORKERS INTERNATIONAL UNION,
AFL-CIO, CLC, et al.,

)
)
)
Civil No. 10-11-ART
)
)
)
MEMORANDUM OPINION &
)
ORDER
Plaintiff,
)
)
v.
)
)
KENTUCKY WEST VIRGINIA GAS
)
COMPANY, LLC, et al.,
)
)
Defendants.
)
*** *** *** ***
The collective bargaining agreement between Kentucky West Virginia Gas and
United Steel International Union says that, upon termination, Kentucky-West would
negotiate a new agreement in good faith. Whatever its duties are under the National Labor
Relations Act, Kentucky-West’s successor thus has a potential contractual duty to do what it
promised. This case is about the scope of that contractual duty. And so it belongs before an
arbitrator. The Union filed a timely suit to compel arbitration, and its motion for summary
judgment is granted.

BACKGROUND
In October 2003, Kentucky-West entered a collective bargaining agreement with the
Union. Equitable Res., Inc. v. United Steel, 621 F.3d 538, 542 (6th Cir. 2010). KentuckyWest made several promises: (1) if it transferred its operation to another entity, it would
condition the transfer on the transferee’s “assuming all the obligations of the [a]greement
until its expiration date,” id.; (2) the agreement would continue at least until October 15,
2008, with sixty-days written notice before termination, R. 27, Attach. 16 at 12; and, (3)
upon termination, it would negotiate with its employees for a “new [a]greement in good
faith,” id. Kentucky-West and the Union also agreed to arbitrate “any difference . . . relating
to the meaning, application, or violation of any provisions of” the agreement. Id. at 5.
More than four years later, Kentucky-West’s parent company, Equitable Resources,
announced that it would eliminate Kentucky-West and integrate its operations with two other
non-unionized subsidiaries. Equitable Res., 621 F.3d at 542. Equitable notified the Union
that the integration would void the collective bargaining agreement because KentuckyWest’s soon-to-be-dispersed employees would no longer represent a cohesive bargaining unit
(presumably under § 9 of the National Labor Relations Act, see 29 U.S.C. § 159(a)). See,
e.g., R. 29, Attach. 2 at 3; Id., Attach. 3 at 3. The Union responded with a grievance,
Equitable replied that it was inarbitrable, and the Union filed suit under § 301 of the NLRA
to compel arbitration. Equitable Res., 621 F.3d at 542. But the parties settled, and Equitable
agreed to arbitrate. Id.
The arbitrator concluded that the agreement’s successorship clause required Equitable
to honor the agreement “until its expiration on October 15, 2008 for the former [Kentucky2

West] employees covered under that agreement.” Id. at 544. The parties returned to Court,
and the Court affirmed the decision, rejecting Equitable’s argument that the arbitrator
necessarily decided an issue within the exclusive jurisdiction of the National Labor Relations
Board—whether the Union remained a proper representative of former Kentucky-West
employees. The Sixth Circuit affirmed. Id. at 538.
In the course of resolving that dispute, another arose.

The Union claimed that

Equitable could not terminate the agreement, even on October 15, 2008, without sixty-days
written notice. R. 29, Attach. 8 at 4. Purportedly to “eliminate any possible doubt” about the
termination of the agreement, Equitable then filed a notice of termination on October 7,
2008. R. 29, Attach. 1 at 4; Id., Attach. 11. The Union responded with another grievance,
Grievance 08-28, obliquely claiming that the notice “d[id] not comply with the
requirements” of the collective bargaining agreement. Id., Attach. 13. (It would later clarify
its belief that the collective bargaining agreement required Equitable to promise good faith
negotiations for a new agreement in the notice.) That same day, the Union petitioned this
Court to remand to the arbitrator to clarify his position on the termination of the agreement.
Equitable Res. v. United Steel, No. 7:08-151 (E.D. Ky. Oct. 8, 2008), R. 33 at 10. Weeks
later, on October 22, Equitable responded to the grievance with a letter stating that it was
Equitable’s position that the agreement terminated with the restructuring and that the October
7 notice was merely prophylactic.

R. 29, Attach. 14.

It added that it had provided

“numerous notices” that the agreement would terminate no later than October 15 and that the
October 7 notice “fully complie[d]” with the collective bargaining agreement. Id. Two days
later, the Court remanded to the arbitrator to clarify three issues: (1) Whether the question
3

about the agreement’s duration had been before him the first time around; (2) If so, whether
the notice provision applied; and (3) If so, whether Equitable gave notice. No. 08-151, R. 37.
Roughly a week later, the Union responded with a letter on October 28 stating that
Equitable’s sluggish response to the grievance “clearly shows that it has no intention to meet
with the Union or comply with the time limits in the Grievance and Arbitration procedure.”
R. 29, Attach. 15. The Union added that it “want[ed] to proceed on to arbitration.” Id.
The arbitrator responded to the remand order a month later. He confirmed that the
duration of the agreement had been before him and that the notice requirement applied. But
he said that the propriety of Equitable’s notice had to be taken up in a new grievance because
“there was no evidence of notice given” at the initial hearing. R. 29, Attach. 16 at 4, 16. The
next day, an Equitable representative wrote the Union to say they should meet to “discuss the
grievances already on file that cover the time period between July 1, 2008 and October 15,
2008” and that he “assume[d] that [the Union would] be filing a grievance related to the
unresolved issue of the adequacy of the notice of termination by October 15.” Id., Attach.
17. He added that they could “discuss” the anticipated grievance and “pick[] an arbitration
panel during” their meeting. Id.
Nearly two months later, on January 28, 2009, Equitable sent the Union a letter
confirming their January 30 meeting. Id., Attach. 18. Equitable attached a list of grievances
to be discussed, including Grievance 08-28. Id. At the meeting, an Equitable representative
allegedly “reiterated” that “it would not arbitrate Grievance 08-28 and again reminded the
Union that it had to file a grievance on the October 15, 2008 expiration date pursuant to the”
arbitrator’s remand award. Id., Attach. 2 at 5. Despite this alleged statement, the Union
4

requested the services of an arbitration panel to resolve Grievance 08-28. Id. Attach. 21.
The arbitration service sent a list of potential arbitrators for the parties to consider on
February 3, 2009, but Equitable never responded. Id.; Id., Attach. 2 at 5. Ten days later,
though, Equitable wrote the Union about another grievance, saying that it was “subsumed”
within Grievance 08-28 and that “[o]nce the issue concerning the termination of the CBA is
resolved,” then the parties could decide how to resolve the other grievance. R. 31, Attach. 2.
A month later, on March 8, a Union representative wrote Equitable that it had requested
arbitration of Grievance 08-28 in late October and had received no response. The Union
further requested that Equitable “expedite” Grievance 08-28 “on to arbitration” and that
Equitable respond in five working days. R. 29, Attach. 22.
On September 9, 2009, the Court held a hearing on a motion the Union filed to hold
Equitable in contempt for sending a letter to former Kentucky-West employees offering to
buy them out of their retirement benefits. No. 08-151, R. 41, Attach. 2; R. 68. The Court
denied the motion but held that “[a]ll grievances involving conduct that occurred on or
before December 6, 2008” would be handled in compliance with the collective bargaining
agreement. Id., R. 68 at 2. The Court specifically said that it was in “no way” deciding the
“notice issue.” Id. That is, the “collective bargaining agreement could have expired on
October 15, 2008” and the order had “no bearing on that issue.” Id.
The next day, the Union once more wrote to Equitable. It said that resolution of
Grievance 08-28 would be “essential to framing the appropriate remedy in many of the other
pending grievances” mentioned in the Court’s order. R. 29, Attach. 24. It further noted that
Equitable had “thus far[] refused to select an arbitrator” from the federal arbitration service.
5

Id. And it insisted that Grievance 08-28 “must proceed to arbitration” and that Equitable “be
ready to select an arbitrator” by September 16. Id. Equitable responded on September 25 in
a letter commenting on several grievances. Id., Attach. 25. There, Equitable said that “as
discussed on [a] phone call” the prior week, “there is no purpose to” Grievance 08-28
“except to deal with conduct after December 6, 2008, which is beyond the court’s order, and
beyond the court’s jurisdiction.” Id. at 3. In response, the Union filed another motion for
contempt. The Court denied the motion and said that the dispute over Grievance 08-28
would have to be resolved in a separate lawsuit. Id., Attach. 27 at 6. On January 21, 2010,
the Union filed this suit to compel Equitable to arbitrate Grievance 08-28. The parties have
since filed cross motions for summary judgment.
DISCUSSION
The Union is right, Grievance 08-28 must go to an arbitrator.

The collective

bargaining agreement broadly submits disputes over the “meaning, application or violation”
of the agreement to arbitration. And Grievance 08-28—which questions whether Equitable’s
October 7, 2008, notice of termination violated the collective bargaining agreement by
failing to include a promise to negotiate a new agreement in good faith—fits comfortably
into that broad language. Cf. Inner City Broad. Corp. v. Am. Fed. of Television and Radio
Artists, 586 F. Supp. 556, 561 (S.D.N.Y. 1984) (holding that parties must arbitrate provision
of contract requiring them to negotiate for a new agreement in good faith). All the more so
because such broad language supports a presumption of arbitrability, see United Steelworkers
of Am. v. Meade Corp., 21 F.3d 128, 132 (6th Cir. 1994), and because labor law supplies a
“liberal federal policy favoring arbitration agreements.”
6

United Steelworkers v. Saint

Gobain Ceramics & Plastics, Inc., 505 F.3d 417, 420 (6th Cir. 2007) (quoting Moses H.
Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)).
1. Statute of Limitations: Hoping to avoid this conclusion, Equitable argues first, and
incorrectly, that the statute of limitations bars this suit to compel arbitration. Equitable’s
problem is not that it failed to plead the statute of limitations in its answer. The Union has
shown no prejudice from Equitable’s waiting to raise it now. See R.H. Cochran & Assocs. v.
Sheet Metal Workers Int’l Ass’n, 335 F. App’x 516, 519 (6th Cir. 2009). Rather, its problem
is that parties in the Union’s shoes have six months to sue for arbitration, starting with the
day on which the defendant unequivocally refuses to arbitrate. McCreedy v. Local Union
No. 971, 809 F.2d 1232, 1236 (6th Cir. 1987) (applying statute of limitations from § 10(b) of
the NLRA). With the “high bar” for showing unequivocal refusal in mind, Local Union No.
661 v. Zenith Logistics, Inc., 550 F.3d 589, 592 (6th Cir. 2008), the earliest day on which
Equitable can be said to have made an “immediate, blunt, or to the point” refusal to arbitrate
is September 25, 2009. Int’l Union v. Cummins, 434 F.3d 478, 483 (6th Cir. 2006). It was
then that the company notified the Union that there was “no purpose” to Grievance 08-28
after the Union’s repeated requests to arbitrate it. R. 29, Attach. 25 at 3. (Though, this
refusal is also less than explicit.)
Equitable’s arguments that it unequivocally refused to arbitrate on earlier dates fail:
For example, it says that it “reiterated that it would not arbitrate Grievance 08-28” at a
meeting with the Union on January 30, 2009. Id., Attach. 2 at 5. But this claim has several
problems. First, Equitable does not specify what it actually said at the meeting. If it merely
“reiterated” what it earlier “iterated,” it is out of luck. All Equitable had “iterated” before
7

was that Grievance 08-28 is without merit, not that the grievance was inarbitrable. Second,
that same affidavit says that Equitable told “the Union that it had to file a grievance on the
October 15, 2008 expiration date[.]” Id. This willingness to process a grievance about the
October 15, 2008, expiration date at the same time Equitable refused to arbitrate Grievance
08-28 must have seemed equivocal to the Union. At that time (unlike now), Equitable still
spoke about Grievance 08-28 as encompassing whether the contract terminated on October
15, 2008. In a letter written just one month after the meeting, Equitable wrote that “whether
the collective bargaining agreement expired on October 15 or . . . December 6” was the
“subject of [G]rievance 08-28.”

R. 31, Attach. 2 (emphasis added).

Third, however

unequivocal Equitable was at the January 30 meeting, its contemporaneous and “subsequent
conduct” muddled that message. See Cummins, 434 F.3d at 484-85 (holding that even an
express refusal to arbitrate can be equivocal if refusing party otherwise hints at a willingness
to negotiate the grievance in contemporaneous and “subsequent” conduct); Aluminum Brick
& Glass Workers Int’l Union v. AAA Plumbing, 991 F.2d 1545, 1549 (11th Cir. 1993)
(holding that subsequent conduct confirmed that statement was equivocal); United
Steelworkers v. Murphy Oil, U.S.A., Inc., No. 00-0371, 2000 WL 1341471, at *1 (E.D. La.
Sept. 14, 2000) (same). Just before the January 30th statement, Equitable listed Grievance
08-28 among those to be “discuss[ed]” at the meeting, R. 29, Attach. 18—which does not
quite sound like an unequivocal refusal to negotiate. And more significantly, weeks after the
meeting Equitable wrote the Union to say that another grievance was “subsumed” within the
“subject of Grievance 08-28,” which raised an “issue” that still needed to be “resolved.” R.
31, Attach. 2.
8

Like its push to count January 30, Equitable’s other attempts to advance the date of its
unequivocal refusal fall short of the “high bar” set by the Sixth Circuit (a burden Equitable
must bear as the proponent of this affirmative defense). First, it proposes October 22, 2008,
when it responded to Grievance 08-28 with a letter insisting that the collective bargaining
agreement “terminated as a matter of law upon [] restructuring” or “no later than October 15,
2008.” R. 29, Attach. 14. The letter also said that the October 7 notice “fully complie[d]”
with the requirements of the agreement. Id. But this is nothing more than a denial of the
merits of the grievance, not a refusal to arbitrate it. See McCreedy, 809 F.2d at 1236
(holding that claim accrues on date when union failed to timely appeal employee’s grievance
to arbitration rather than the date on which the grievance was denied); Zenith Logistics, 550
F.3d at 592 (holding that letters stating that party “would not participate in any aspect of the
grievances” was not an unequivocal refusal to arbitrate because the letters were not about
arbitration specifically). Second, Equitable contends that its non-response to a request that it
select an arbitrator to resolve Grievance 08-28 on February 3, 2009, and to a follow-up letter
from the Union on March 8, 2009, establishes an unequivocal refusal to arbitrate—at least
when combined with its express refusal at the January 30, 2009, meeting. Yet refusing to
respond to a request for arbitration is typically not an unequivocal refusal to arbitrate. See
Local Joint Exec. Bd. of Las Vegas v. Exber, Inc., 994 F.2d 674, 674-75 (9th Cir. 1993)
(holding that not responding to two requests to arbitrate was not an unequivocal refusal).
Even in the cases Equitable cites to the contrary, the defendant did more than simply fail to
respond. See Aluminum, Brick & Glassworkers Int’l Union v. A.P. Green Refractories, Inc.,
895 F.2d 1053, 1054 (5th Cir. 1990) (party attended arbitration session but objected to
9

arbitrating a grievance and discontinued session); United Steel v. ConocoPhillips Co., __ F.
Supp. 2d__, No. 06-363, 2010 WL 4056124, at *8-9 (N.D. Okla. Oct. 15, 2010) (holding that
employer unequivocally refused to arbitrate when it sent a letter implying grievance was
inarbitrable and also failed to respond to a request to arbitrate). And the fact still remains
that at the very time Equitable was not responding to the Union’s arbitration requests, it also
sent the Union a letter saying that another grievance was “subsumed” by Grievance 08-28
and that Grievance 08-28 presented an issue that still needed to be “resolved.”
In the background of all these would-be refusals, Equitable has another problem.
Sophisticated and well-represented as it is, the company passed up opportunity after
opportunity to build a record of its refusal. It failed to document its refusal either in its initial
response to the grievance in October 2008, or in its letters on July 1, 2008, and January 28,
2009. It declined to respond to the arbitration service’s letter providing a list of arbitrators to
resolve Grievance 08-28. It actually said Grievance 08-28 was still to be “resolved” in a
letter on February 13, 2009. It further declined to respond to the Union’s request to expedite
the grievance on March 8, 2009. And, finally, it said nothing in a hearing before this Court
on September 9, 2009. This pattern of silence is hardly indicative of Equitable’s taking a
hard position against arbitrating Grievance 08-28. See Cummins, 434 F.3d at 484 (holding
that failure to respond to letter specifically asking whether company refused to arbitrate was
a sign of equivocation). All the less so when viewed through the lens of the “high bar” set by
the Sixth Circuit.
One last point about the statute of limitations: Equitable says that the Union’s own
correspondence establishes that Equitable unequivocally refused to arbitrate. That is, the
10

Union wrote in a letter on March 8, 2009, that it had requested arbitration of Grievance 08-28
but that it had “not received a response . . . agreeing to arbitrate.” R. 29, Attach. 22. And in
a later letter, the Union wrote that Equitable had “thus far[] refused to select an arbitrator”
from the list of potential arbitrators provided in February 2009. Id., Attach. 24. Yet this, too,
is unconvincing. Not only has the Sixth Circuit said that it is the conduct of the party
refusing arbitration, not the party seeking arbitration, that matters. Zenith Logistics, 530 F.3d
at 593 (“The focus is on the employer’s position, not the Union’s conduct.”). But looking at
the Union’s conduct to measure the certainty of Equitable’s refusal to arbitrate is dangerous
business for Equitable. The Union continually wrote to Equitable to request arbitration, all
the way through September 2009. And even in that final letter, it requested arbitration. The
Union gave little sign that it understood Equitable to have conclusively refused to arbitrate.
Having failed to unequivocally refuse to arbitrate before September 2009, then, Equitable’s
statute-of-limitations argument is unpersuasive.
2. Proper Subject of Arbitration: Equitable next argues, also incorrectly, that an
arbitrator cannot decide Grievance 08-28. The argument seems to be this: The Supreme
Court has said that issues arguably arising under § 8 of the NLRA, which covers unfair labor
practices, are within the exclusive jurisdiction of the NLRB. San Diego Bld. Trades Council
v. Garmon, 359 U.S. 236, 246 (1959). Section 301 of the NLRA does offer an exception to
this, granting federal courts jurisdiction over “[s]uits for violations of contracts between an
employer and a labor organization”—including suits to compel arbitration. DiPonio Constr.
Co. v. Int’l Union of Bricklayers, 739 F. Supp. 2d 986, 991 (E.D. Mich. 2010). But that
exception is itself limited where the subject of the dispute is not merely about the terms of an
11

agreement between an employer and a union, but also about the employer’s obligation under
NLRA § 8(a)(5) to bargain with a union properly chosen as the representative of a bargaining
unit of employees by a majority of those employees in accordance with § 9. Carey v.
Westinghouse Elec. Corp., 375 U.S. 261, 266 (1964); 29 U.S.C. § 159(a) (“Representatives
designated or selected for the purposes of collective bargaining by the majority of the
employees in a unit appropriate for such purposes, shall be the exclusive representatives of
all the employees in such unit for the purposes of collective bargaining.”). As the Sixth
Circuit has held, then, if an issue is “primarily representational,” rather than contractual,
federal courts (and arbitrators) should defer to the NLRB. Int’l Bhd of Elec. Workers v.
Trafftech, Inc., 461 F.3d 690, 694-95 (6th Cir. 2006). And, says Equitable, Grievance 08-28
is “primarily representational” because whoever resolves it must first decide whether the
Union remains a proper representative of the former Kentucky-West employees under § 9 of
the NLRA. See id. at 695 (citing Amalgamated Clothing & Textile Workers v. Facetglas,
Inc., 845 F.2d 1250, 1253 (4th Cir. 1998)).
The first problem with Equitable’s argument is that the company failed to develop it.
See United States v. Zannino, 895 F.2d 1, 7 (1st Cir. 1990) (“It is not enough to merely
mention a possible argument in the most skeletal way, leaving the court to do counsel’s
work, create the ossature for the argument, and put flesh on its bones.”). At the risk of doing
the “counsel’s work,” id., the argument seems to be this: (1) the essence of Grievance 08-28
is that Equitable must promise to bargain with the Union for a new agreement in good faith;
(2) it can only have a duty to bargain with the Union under § 8 of the NLRA if the Union
remains a representative of an intact bargaining unit of former Kentucky-West employees as
12

defined under § 9 of the NLRA; and (3) deciding Grievance 08-28 thus requires a decision
that former Kentucky-West employees are a true § 9 bargaining unit even after KentuckyWest’s dissolution and that the Union is still their § 9 majority representative.
But it is not true that Grievance 08-28 requires deciding that the Union is still a proper
§ 9 representative (step three) because it is not true that Equitable could only have a duty to
negotiate a new agreement if the Union was a proper § 9 representative (step two). Sure, §
8(a) of the NLRA would not impose a statutory duty on Equitable to negotiate a new
agreement if the Union is not a proper § 9 representative of an intact bargaining unit. See,
e.g., Levitz Furniture Co. of the Pacific, Inc., 333 NLRB No. 105, at *2 (March 29, 2001)
(“[A]n employer can defeat a postwithdrawal refusal to bargain allegation if it shows, as a
defense, the union’s actual loss of majority status.”). But Equitable could still have, as
Grievance 08-28 alleges, a contractual duty to negotiate a new agreement under the
collective bargaining agreement because “the absence of a statutory duty to bargain does not
relieve a party from its contractual obligation” to negotiate a new agreement. Local Union
No. 666 v. Sotkes Elec. Serv., Inc., 225 F.3d 415, 423 (4th Cir. 2000). For this reason, the
Sixth Circuit and several others have held, in a slightly different context, that an employer
who has contracted to negotiate a new agreement must honor that promise even where the
NLRA would not require it because, for example, the “union lost its status as the majority
representative” under § 9, Mulvaney Mech., Inc. v. Sheet Metal Workers Int’l Ass’n, 288 F.3d
491, 499-500 (2d Cir. 2002) vacated, 123 S. Ct. 1572 (2003), reaff’d by 351 F.3d 43 (2d Cir.
2003). See Sheet Metal Workers Int’l Ass’n v. Dane Sheet Metal, Inc., 932 F.2d 578, 582
(6th Cir. 1991); see also Local Union No. 666, 225 F.3d at 423; Local Union 257 v.
13

Sebastian Elec., 121 F.3d 1180, 1185 (8th Cir. 1997); Am. Metal Prods. v. Sheet Metal
Workers Int’l Ass’n, 794 F.2d 1452, 1455 (9th Cir. 1986).
Equitable might assume that an arbitrator cannot compel it to honor its contractual
promise if the Union has lost its statutory representational status because the NLRA imposes
a “general rule” against “enter[ing] into a collective bargaining agreement” with a union that
represents less than a majority of the employees in a proper bargaining unit. Local Union
666, 225 F.3d at 418. But that rule would only apply if the contractual duty obligated
Equitable to enter a new agreement under which the Union would be the exclusive § 9
representative of all the employees in a Kentucky-West bargaining unit, whether they wanted
it or not. Cf. Local Union 666, 225 F.3d at 423 (holding that employer continued to be
bound by contractual duty to negotiate new agreement even if union was not at § 9(a)
representative because the union was not trying to force the employer to recognize it as an
exclusive representative under § 9(a)). Employers are still allowed to enter agreements with
a minority union that purports to represent only those employees who choose it as their
representative. See Retail Clerks Int’l Ass’n v. Lion Dry Goods, Inc., 369 U.S. 17, 29 (1962);
Robert A. Gorman & Matthew Finkin, Basic Text on Labor Law Unionization and Collective
Bargaining 273 (2d ed. 2004); see also Local 377 v. 1864 Tenants Ass’n, No. 06-1190, 2007
WL 634751, at *4 (S.D.N.Y. Mar. 1, 2007). And Equitable points to nothing in the current
contract that would forbid entering a new agreement with the Union as a so called “members
only,” rather than exclusive, representative. See Gorman & Finkin, supra.
Nor can Equitable avoid arbitration of this dispute on the theory that it has
“repudiated” this collective bargaining agreement as void now that the Union has lost its
14

representational status. See Local Union 666, 225 F.3d at 421 (noting that employer did not
“repudiate” old agreement while holding that employer had contractual duty to negotiate new
agreement). First, it has not directly made such an argument, and the Court will not do so for
it. See Zannino, 895 F.2d at 7. Second, repudiating a collective bargaining agreement is not
a way to avoid arbitration: Courts widely enforce contractual arbitration clauses against
repudiating parties, holding that repudiation is itself an issue for an arbitrator to decide. See,
e.g., Cal. Trucking Ass’n v. Bhd of Teamsters, 679 F.2d 1275, 1282 (9th Cir. 1981) (citing
cases). Third, an arbitrator already held that the agreement survived the Kentucky-West
integration over Equitable’s argument that its integration voided the agreement, and both this
Court and the Sixth Circuit have affirmed him. Finally, repudiation may well be a tool for
voiding a contractual obligation that requires an employer, contrary to the NLRA, to
continue to recognize a union that has lost its majority status as the exclusive representative
of a bargaining unit under § 9. But the Court knows of no authority to suggest an employer
can “repudiate,” and thus void, a contract with a minority union that purports to represent
only those who have chosen it as a representative—in other words, a union with whom an
employer can collectively bargain without implicating the NLRA. See Lion Dry Goods, Inc.,
369 U.S. at 29. Hence, arbitration is still proper.
To tie all of this together, consider an example in an easier case: Assume a small
group of employees—representing a mere fraction of the employees that would form a true
bargaining unit under the NLRA—organize and unanimously select a union to represent
them. The union and the employer sign a collective bargaining agreement that applies only
to those consenting employees, not the rest of the members of the potential bargaining unit.
15

In the agreement, the employer promises to give sixty-days notice of termination and, in the
notice, the employer will schedule negotiations for a new agreement. The parties agree to
arbitrate any dispute under the contract.
Months later, the employer reorganizes and splits the employees up among different
factories. It sends the union notice of termination, but refuses to schedule negotiations for a
new agreement. The employer is adamant that it has no duty to negotiate with the union
under the NLRA. And, the employer adds for good measure, it is “repudiating” the contract
because the union is not a proper § 9 representative. That employer, like Equitable, is right
that it has no statutory duty to negotiate a new agreement. But it still arguably contracted to
negotiate a new agreement. The absence of a statutory duty does not change that, and
nothing in the NLRA forbids keeping the alleged promise. The parties are engaged in a live
contractual dispute. Because they confront no statutory representational issues under §§ 8
and 9 of the NLRA, their dispute belongs before an arbitrator.
Aside from the explicit contractual requirement that the notice of termination include
a promise to negotiate a new agreement, 1 that case is not much different from this one. The
solitary remaining difference is that the Union here was once a § 9 majority representative.
But now, even assuming the Union is no longer a majority representative that could bind an
entire collective bargaining unit, the Union and Equitable could still negotiate a new
agreement under which the Union is a minority representative purporting to represent only its
consenting members.

Deciding whether Equitable must promise to negotiate is thus a

1

The Court in no way means to decide whether the termination notice in this case was
required to include a promise to negotiate a new agreement or whether it was otherwise
inadequate. It also is not deciding whether or when the agreement expired. These issues are
entirely for the arbitrator to decide.
16

contractual dispute that does not turn on the Union’s § 9 representative status. It is not
“primarily representational,” and so an arbitrator gets to resolve it—as the parties agreed.
3. The Grievance is Not Moot: Equitable’s final argument it that the contract
inarguably terminated on October 15, 2008, so this dispute over a notice of termination for a
later date is moot. Suffice it to say that whether the contract terminated on October 15, 2008,
is itself an issue the arbitrator can decide as a necessary predicate to deciding the merits of
the grievance. See Teamsters Local Union No. 89 v. Krogers Co., 617 F.3d 899, 906-07 (6th
Cir. 2010) (“[W]here the dispute turns not on whether the parties ever agreed to arbitrate, but
rather whether an agreement to arbitrate has expired or terminated, the question of
termination is for the arbitrator.”) (quoting Int’l Ass’n of Bridge, Structural, and Ornamental
Iron Workers v. J & N Steel & Erection Co., 8 F. App’x 381, 386 (6th Cir. 2001)). After all,
“resolution of the [termination] issue involves examining and interpreting the termination
provisions of the agreement.” Id. The Court will thus order this dispute to arbitration.
CONCLUSION
Accordingly, it is ORDERED that the Union’s motion for summary judgment, R. 27
and R. 28, is GRANTED, and Equitable’s motion for summary judgment, R. 29, is
DENIED.

It is further ORDERED that this matter is REFERRED to arbitration as

provided in the collective bargaining agreement.
This the 18th day of April, 2011.

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