Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Nov. 6, 1998.
Appeal from the United States District Court for the District of Idaho, Larry M. Boyle, Magistrate Judge, Presiding.
Pursuant to the parties' consent and 28 U.S.C. § 636(c), this matter was tried before a United States Magistrate Judge.
Before CANBY and HAWKINS, Circuit Judges, and SILVER, District Judge.
Honorable Roslyn O. Silver, United States District Judge for the District of Arizona, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36.3.
"This is not a case about who wins and who loses the dispute over the grievance. It is, rather, a case about who should decide the question." Westinghouse Hanford Co. v. Hanford Atomic Metal Trades Council, 940 F.2d 513, 523 (9th Cir.1991).
We agree with the magistrate judge that the arbitration clause in the Collective Bargaining Agreement ("CBA") between Eastern Idaho Metal Trades Council ("EIMTC") and Westinghouse Electric Corporation ("Westinghouse") is "susceptible of an interpretation that covers the asserted dispute." United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 (1960); West Coast Tel. Co. v. Local Union No. 77, Int'l Bhd. of Elec. Workers, AFL-CIO, 431 F.2d 1219, 1221 (9th Cir.1970). While we are mindful of the admonition that courts are "not to rule on the potential merits of the underlying claims" of a case, AT & T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643, 649 (1986), we recognize the necessity of examining, and in some cases interpreting, CBA provisions to determine whether an arbitration clause applies to a dispute. Courts must determine which interpretation is most consistent with the intent of the agreement, so as to keep it whole and avoid rendering certain provisions "nugatory." Richardson v. Pension Plan of Bethlehem Steel Corp., 112 F.3d 982, 985 (9th Cir.1997).
Although article XVI, section 7f(3) could be read to exclude the grievances brought by EIMTC, when read in the context of other provisions relating to EIMTC's grievances, such a reading would nullify at least three other provisions: article IV, sections 4 and 6, and article XVI, sections 6a and b. The magistrate judge opted for an interpretation of article XVI, section 7f(3) that harmonizes it with other CBA provisions. By analyzing the wording of the provision, the judge did not decide the merits of EIMTC's claims. What he did, and properly so, was to resolve an ambiguity by interpreting one provision narrowly, resulting in the arbitration clause being applicable to EIMTC's grievances.
The magistrate judge did not err in holding that, by the terms of the CBA, Westinghouse and EIMTC had indeed agreed to arbitrate labor disputes such as those brought by EIMTC in the immediate case. The grant of summary judgment is also consistent with the general policy favoring arbitration of labor disputes. See Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217 (1985); Wagner v. Stratton Oakmont, Inc., 83 F.3d 1046, 1049 (9th Cir.1996).
While reasonable minds might differ as to whether Westinghouse's argument below was frivolous or made in bad faith, its appeal to this court is another matter. The "policy concerns raised by ... appeals of district court orders compelling arbitration are the same as those raised by frivolous or bad faith refusals to comply with an arbitration award." United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1383 (9th Cir.1984). Dilatory tactics, once an independent and neutral fact finder has determined the dispute is subject to arbitration, "... not only den[y] the individual prompt redress, [they] threaten[ ] the goal of industrial peace." Id. at 1382 (quoting International Union of Petroleum & Indus. Workers v. Western Indus. Maintenance, Inc., 707 F.2d 425, 428 (9th Cir.1983)). By refusing to comply with the order below, Westinghouse both denied EIMTC the right to promptly arbitrate its claims and thwarted the policy favoring arbitration. Accordingly, we award costs and fees on appeal to EIMTC, in an amount to be determined by the Appellate Commissioner.
AFFIRMED.