United States v. 2007-02-05 | 04-16917 | OPERATING ENGINEERS VNEWMONT MINING CORP. | precedential |…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 OPERATING ENGINEERS LOCAL UNION No. 04-16917
NO. 3, D.C. No. Plaintiff-Appellee, CV-03-00395- v. ECR/RAM
NEWMONT MINING CORP., OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, District Judge, Presiding
Argued and Submitted
November 14, 2006—San Francisco, California
Filed February 5, 2007
Before: William C. Canby, Jr., Emmett Ripley Cox,* and
Richard A. Paez, Circuit Judges.
Opinion by Judge Canby
*The Honorable Emmett Ripley Cox, Senior United States Circuit
Judge for the Eleventh Circuit, sitting by designation.
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COUNSEL
Paul J. McCue, Raymond M. Deeny, Sherman & Howard,
Denver, Colorado, for the defendant-appellant.
David A. Rosenfeld, Caren P. Sencer, Weinberg, Roger &
Rosenfeld, Alameda, California, for the plaintiff-appellee.
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OPINION
CANBY, Circuit Judge:
Newmont Mining Corporation appeals the district court’s
grant of summary judgment in favor of Operating Engineers
Local Union No. 3 in the Union’s action to compel arbitra-
tion. Newmont and the Union were parties to a collective bar-
gaining agreement. Newmont terminated the employment of
Samuel Taylor, an employee represented by the Union, for
allegedly falsifying a tool request form. Newmont declined to
arbitrate the termination, on the ground that the parties’ col-
lective bargaining agreement expired prior to Taylor’s dis-
charge. The district court found that the parties were bound by
the expired agreement’s arbitration provision because the
“key or critical facts” involved in the dispute took place prior
to the agreement’s expiration.
We affirm, but by a somewhat different analysis than that
adopted by the district court. We conclude that the parties
contracted to arbitrate the significant question of whether
Taylor falsified the tool request form, an incident that, if it
occurred, took place before the collective bargaining agree-
ment expired. We therefore hold that the parties’ dispute
arises under the expired agreement and that the matter must
be submitted to arbitration.
I. BACKGROUND
Newmont and the Union entered into a collective bargain-
ing agreement for the term October 1, 1999 through Septem-
ber 30, 2002 (the “CBA”). The CBA set forth a three-step
procedure for resolving the parties’ grievances. Any grievance
not resolved through discussions between the parties (step
one) or in a meeting before a Board of Adjustment (step two)
could be submitted to binding arbitration. In the case of
employee discharge or discipline submitted to arbitration, the
CBA provided that:
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[T]he Arbitrator shall determine the question of fact
as to the occurrence or non-occurrence of the cir-
cumstances upon which the discipline was based. If
it is determined that such circumstances were as
found by the Employer, the Employer’s decision as
to the kind and degree of discipline shall not be dis-
turbed unless there is an express finding that the kind
and degree of discipline was unreasonable.
Newmont employed Samuel Taylor as a gas mechanic. On
September 25, 2002, Taylor allegedly altered a company form
so that it requested tools to which he was not entitled. Five
days later, the CBA expired. On October 14, 2002, Newmont
terminated Taylor for falsifying the tool replacement form.
Pursuant to the CBA, the Union filed a grievance over Tay-
lor’s termination. After unsuccessful attempts to settle the
grievance in accordance with the first two steps of the proce-
dure outlined in the CBA, the Union requested arbitration.
Newmont refused the request, asserting that the CBA’s arbi-
tration clause was not binding because the CBA expired on
September 30, 2002, before Taylor’s termination but after the
incident giving rise to his termination.
The Union filed a Motion to Compel Arbitration in United
States District Court pursuant to 29 U.S.C. § 185. Newmont
filed a Motion for Summary Judgment. The district court
treated the motions as cross-motions for summary judgment.
The court found it undisputed that the following occurred
before expiration: (1) Taylor’s alleged falsification of the
form; (2) Newmont’s initial questioning of Taylor’s conduct;
(3) Newmont’s preliminary discovery of Taylor’s alleged
conduct; and (4) an investigation regarding the tool request.
It found that the following occurred after expiration of the
CBA: (1) the dispute over the tool request; (2) additional
investigation of the falsification claim; (3) Taylor’s suspen-
sion and discharge; and (4) the filing of the Union’s griev-
ance. The court concluded that the key or critical facts and
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occurrences took place before the expiration of the CBA, and
that the dispute therefore arose under the contract and was
subject to its arbitration clause. The court granted the Union’s
Motion to Compel Arbitration and denied Newmont’s Motion
for Summary Judgment. This appeal followed.
II. DISCUSSION
We have jurisdiction under 28 U.S.C. § 1291. We review
de novo the district court’s grant of summary judgment.
Jacobs v. CBS Broadcasting, Inc., 291 F.3d 1173, 1176 (9th
Cir. 2002). We also review de novo the district court’s order
compelling arbitration. Thinket Ink Info. Res., Inc. v. Sun
Microsystems, Inc., 368 F.3d 1053, 1060 (9th Cir. 2004).
A. Did the dispute over Taylor’s termination “arise
under the contract”?
[1] Whether Newmont is required to arbitrate Taylor’s ter-
mination is a matter of contract interpretation. See AT&T
Tech., Inc. v. Communications Workers of Am., 475 U.S. 643,
648 (1986). Although Newmont cannot be required to arbi-
trate a dispute if it did not so agree, id., the expiration of the
parties’ collective bargaining agreement did not automatically
extinguish its duty to arbitrate grievances arising under the
agreement. See Nolde Bros., Inc. v. Local No. 358, Bakery &
Confectionary Workers Union, 430 U.S. 243, 251-52 (1977).
The dispute between Newmont and the Union “arise[s] under
the contract,” and therefore subjects the parties to arbitration,
if (1) “it involves facts and occurrences that arose before expi-
ration,” (2) “an action taken after expiration infringes a right
that accrued or vested under the agreement,” or (3) “under
normal principles of contract interpretation, the disputed con-
tractual right survives expiration of the remainder of the
agreement.” See Litton Fin. Printing Div., Inc. v. NLRB, 501
U.S. 190, 206 (1991).
[2] The central issue before us is whether the dispute
between Newmont and the Union “involves facts and occur-
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rences that arose before expiration” of the CBA, within the
meaning of Litton. As the district court recognized, the deter-
mination of this question is easy enough when all of the
events underlying the dispute occur before expiration of the
CBA or when they all occur after, as in Nolde Brothers. The
issue becomes more clouded when, as in this case, some of
the events related to the grievance occurred before expiration
of the CBA and some after. Addressing such a case, the Sixth
Circuit held that a dispute arises under the contract, and is
therefore arbitrable, “when a majority of the material facts
and occurrences arose before the expiration” of the CBA.
South Cent. Power Co. v. Int’l Bhd. of Elec. Workers, Local
Union 2359, 186 F.3d 733, 740 (6th Cir. 1999).
[3] The district court here adopted the general approach of
the Sixth Circuit but recognized, correctly in our view, the
disadvantages of a mere counting of facts and occurrences,
even when they are limited to material facts. The district court
therefore held that “even if a majority of the material facts
and circumstances occurred after the contract was terminated,
certainly the key or critical facts and circumstances in this
case took place before the contract was terminated.” A focus
on “key” or “critical” facts is certainly preferable to a mere
counting of the number of facts or occurrences that took place
before or after expiration of the CBA. We conclude, however,
that the determinative issue is not necessarily the relative
importance of the facts that took place before the CBA’s expi-
ration, but whether those facts and the dispute over them is
one that the parties agreed to arbitrate. Although the pre-
expiration facts or occurrences to be arbitrated must be of
some significance in the dispute, the dispute must be arbi-
trated if the parties agreed to arbitrate those facts or occur-
rences.
[4] Here the answer to that question is clear. The parties
agreed in the CBA that, “[i]n the case of Employee . . . dis-
charge, the Arbitrator shall determine the question of fact as
to the occurrence or non-occurrence of the circumstances”
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upon which an employee’s termination was based. They also
agreed that, within strict limits, the arbitrator could consider
whether the termination was unreasonable. Applying these
terms of the parties’ agreement, Taylor’s falsification of the
tool request form, which allegedly occurred before expiration
of the CBA, and its consequences are questions that must be
arbitrated. There is no doubt that the alleged falsification is of
some significance in the termination dispute; indeed, it is the
primary factual question to be resolved. We have no difficulty
concluding, therefore, that the parties’ dispute arose under the
expired CBA and is subject to arbitration. The arbitration
must proceed even if it may take account of, and have some
impact on, events that occurred after expiration of the CBA.
We accordingly reject Newmont’s contention that Taylor’s
post-expiration termination, and not the conduct leading up to
it, was the “fact or occurrence” central to the parties’ dispute,
and that the dispute consequently is not subject to the CBA.
Even if the termination was a significant part of the dispute,
so was the alleged misconduct in falsifying the tool request
form. The parties clearly agreed in the CBA to arbitrate the
latter issue, and the misconduct occurred, if at all, prior to the
expiration of the CBA. To deny arbitration would deprive the
Union of the benefit of its bargain. That we decline to do.1
B. Attorneys’ fees on appeal
[5] Finally, we deny the Union’s request for an award of
attorneys’ fees on appeal. There is no evidence that Newmont
acted “in bad faith, vexatiously, wantonly, or for oppressive
reasons” in filing this appeal. See Alyeska Pipeline Serv. Co.
1It follows from the rationale of our decision that it is immaterial
whether Newmont discovered the alleged misconduct before or after the
expiration of the CBA. We therefore need not address Newmont’s conten-
tion that there was a triable dispute of fact with regard to that issue. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes
over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.”).
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v. Wilderness Soc’y, 421 U.S. 240, 258-59 (1975) (internal
quotations omitted).
III. CONCLUSION
For the reasons set forth above, the judgment of the district
court is AFFIRMED.
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