Opinion
Civil Action No. 6:01-CV-059-C
November 26, 2002
MEMORANDUM OPINION
Came on for trial the above-styled and -numbered cause. Both parties appeared and announced ready. The Court, having heard the evidence and arguments of counsel, enters the following Memorandum Opinion.
I.
In August of 1994, XL Electric signed a Letter of Assent-A with the Red River Valley Chapter of the National Electrical Contractors Association ("Red River") authorizing Red River to act as XL Electric's representative for collective bargaining with the Local Union 898 of the International Brotherhood of Electrical Workers ("Local 898"). The Letter of Assent-A is known as a pre-hire agreement and is permissible under section 8(f) of the National Labor Relations Act. In signing the Letter of Assent-A, XL Electric agreed to be bound by the "inside agreement" between Red River and Local 898. The Letter of Assent-A provided that the underlying agreement was effective from June 1, 1997 through May 31, 2000. The agreement provided that it would remain in effect until termination by written notice to Red River at least 150 days prior to the current anniversary date. The anniversary date of the agreement was May 21, 2000. The agreement also contained an interest arbitration clause for resolution of disputes arising under the agreement. The interest arbitration clause provided as follows:
Unresolved issues in negotiations that remain on the 20th month preceding the next regular meeting of the Council on Industrial Relations, may be submitted jointly or unilaterally by the parties to this Agreement to the Council for adjudication prior to the anniversary date of the Agreement.
On November 12, 1999, XL Electric sent a letter to Red River and Local 898 stating that it would not be bound by any future labor agreements but instead would negotiate its own agreements. The November 12, 1999 letter sent by XL Electric to Red River and Local 898 was sent more than one-hundred fifty days prior to the anniversary date of agreement. The November 12, 1999 letter also included several proposals and terms that XL Electric wanted to negotiate. The parties began exchanging a series of proposals in an attempt to reach a new agreement. The Letter of Assent-A expired on May 31, 2000.
The parties never reached a new agreement, and on July 10, 2000, XL Electric sent Local 898 a letter informing Local 898 that their relationship had ended on June 1, 2000, at the expiration of the Letter of Assent-A. Prior to the Letter of Assent-A's expiration on May 31, 2000, XL Electric paid the wages and fringe benefits due to its employees and the Union's funds according to the Letter of Assent-A. After the May 31, 2000 expiration date, XL Electric began hiring employees not referred from the Union hiring hall and paying its employees wages and benefits not in accordance with any terms of contract with the Union. After June 1, 2000, Mr. Dean Hunt, Vice President of XL Electric, met with the electricians employed by XL Electric and informed them that they would no longer be receiving benefits under a union contract.
In August of 2000, Local 898 submitted the unresolved issues between itself and XL Electric to the Council on Industrial Relations pursuant to the interest arbitration clause. The Council on Industrial Relations is the interest arbitration panel for the electrical contracting industry. The Council issued a preliminary decision on August 15, 2000, imposing a new agreement between XL Electric and Local 898 to be in effect from June 1, 2000 until May 31, 2003. XL Electric challenged the preliminary decision, but the Council did not disturb its original ruling and issued an official decision. XL Electric refused to be bound by the new agreement imposed by the Council.
On June 25, 2001, Local 898 filed this lawsuit pursuant to section 301 of the National Labor Relations Act, 29 U.S.C. § 185, to enforce the terms of the interest arbitration award against XL Electric. A bench trial was held on November 14, 2002, in San Angelo, Texas.
II.
The Letter of Assent-A signed by XL Electric was a Section 8(f) pre-hire agreement. 29 U.S.C. § 1158(f). Section 8(f) of the National Labor Relations Act permits an employer to enter into a contract with a union regarding terms and conditions of employment, without proof of the union's majority status among its employees. 29 U.S.C. § 158(f). Section 8(f) pre-hire agreements are voidable until such time as the union achieves majority status. See Jim McNeff, Inc. v. Todd, 461 U.S. 260 (1983). There is no evidence that the Plaintiff in the instant matter achieved majority status; accordingly, the pro-hire agreement was voidable at any time.
In this case, the pre-hire agreement required written notice of termination at least 150 days prior to the anniversary date of the agreement. On November 12, 1999, more than 150 days prior to the anniversary date of the agreement, Defendant sent Plaintiff a letter repudiating the agreement. The letter stated that Defendant would not be bound by any new agreements but would negotiate its own agreements. Plaintiff asserts that this letter is not sufficient to constitute a repudiation of their agreement; however, the intent of Defendant is quite clear: the letter stated that Defendant would not be bound by any new agreements but would negotiate any new agreements on its own. Defendant repudiated the agreement on November 12, 1999. Even if this letter did not effect a repudiation, the agreement expired on its own terms on May 31, 2000.
Plaintiff asserts that although the agreement had expired, Defendant had a contractual duty to arbitrate pursuant to the interest arbitration provision in the pre-hire agreement. Defendant claims that because the agreement had expired, there was no post-contract duty to arbitrate, and it would be against public policy to require Defendant to do so. Plaintiff points to an abundance of case law to support the position that notice of a desire to terminate an agreement does not relieve a party of its contractual duty to arbitrate. See Local Union No. 666 Int'l Bhd. of Elec. Workers, AFL-CIO v. Stokes Elec. Serv., Inc., 225 F.3d 415 (4th Cir. 2000); IBEW Local 113 v. Collier Elec., 296 NLRB 1095, 1989 WL 224423 (1989); Sheet Metal Workers Local Union 20 v. Baylor Heating Air Conditioning, Inc., 877 F.2d 547 (7th Cir. 1989); Sheet Metal Workers Int'l Ass'n Local 206 v. R.K. Burner Sheet Metal, Inc., 859 F.2d 758 (9th Cir. 1988); Sheet Metal Workers Int'l Ass'n Local 110 Pension Trust Fund v. Dane Sheet Metal, Inc., 932 F.2d 578 (6th Cir. 1991); Sheet Metal Workers Int'l Ass'n Local 24 v. Architectural Metal Works, 2001 WL 818227 (6th Cir. 2001). The case law supports the Plaintiff's position that even after an agreement has terminated or expired, a party may be contractually obligated to arbitrate a matter.
It is for the Court to determine under Section 301 the arbitrability of an expired collective bargaining agreement. ATT Technologies, Inc. v. Communications Workers, 475 U.S. 643, 651 (1986). The Court acknowledges that where an effective bargaining agreement exists between the parties and the agreement contains a broad arbitration clause, "there is a presumption of arbitration." Id. at 650. However, in the present situation, the collective bargaining agreement was expired, and the interest arbitration clause in the instant case can be distinguished from the broad arbitration clauses in the cases relied on by Plaintiff. The interest arbitration clause in this case is very limited and reads in pertinent part: "Unresolved issues in negotiations that remain . . . may be submitted jointly or unilaterally by the parties to this Agreement to the Council for adjudication prior to the anniversary date of the Agreement." (emphasis added). This interest arbitration clause is much narrower than the arbitration clauses in the case law that Plaintiff relies on. The interest arbitration clause in this case limits when the parties may submit an unresolved issue to arbitration; the parties may only submit an unresolved issue to arbitration prior to the anniversary date of the agreement. Plaintiff clearly failed to do so. Plaintiff submitted the unresolved issues for arbitration after the expiration date of the Letter of Assent-A, in August of 2000. Although Defendant was contractually bound to arbitrate any unresolved issues, Defendant was only contractually bound to arbitrate unresolved issues prior to the anniversary date, and Plaintiff's submission was too late.
Plaintiff however, attempts to avoid this result by asserting that the issue of the timeliness of Plaintiff's submission is a procedural issue to be decided by the arbitrator. Plaintiff's assertion is correct — the Fifth Circuit considers timeliness questions to be procedural. Int'l Union of Operating Eng'rs, AFL-CIO v. Austin Co., 784 F.2d 1262, 1264 (5th Cir. 1986). Normally, courts should not address procedural questions because they are addressed by the arbitrator. John Wiley Sons v. Livingston, 376 U.S. 543, 557-58 (1964). However, a court may decide procedural arbitrability questions if, and only if, the court can confidently say that the claim would be barred. Oil, Chem. Atomic Workers' Int'l Union, Local 4-447 v. Chevron Chem. Co., 815 F.2d 338, 340-41 (5th Cir. 1987). In the instant action, this Court can address the timeliness issue because it can confidently say that the claim would be barred.
Therefore, this Court finds that the Letter of Assent-A signed by XL Electric was a section 8(f) pre-hire agreement and was voidable at any time. Defendant repudiated the Letter of Assent-A in a letter dated November 12, 1999. Defendant's contractual obligations to Plaintiff ceased to be enforceable after the notice's effective date of May 31, 2000. The Plaintiff lost the right to take any outstanding negotiation issues to the Council under the express terms of Section 1.02(d) of the Agreement. The parties are not bound by the Council's interest arbitration award of August 15, 2002. Therefore, Judgment shall be entered that Plaintiff take nothing as against Defendant.