United States Court of Appeals
For the First Circuit
No. 01-2430
THE PROVIDENCE JOURNAL COMPANY,
Plaintiff, Appellant,
v.
PROVIDENCE NEWSPAPER GUILD,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Torruella, Circuit Judge,
Gibson,* Senior Circuit Judge,
and Howard, Circuit Judge.
Lincoln D. Almond, with whom William P. Robinson III and
Edwards & Angell, LLP were on brief, for appellant.
Barbara L. Camens, with whom Barr & Camens and Richard
Humphrey were on brief, for appellee.
October 21, 2002
*
Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
TORRUELLA, Circuit Judge. This is an appeal from a
district court order to arbitrate a post-expiration grievance that
"arose under" the parties' expired collective bargaining agreement.
For the reasons stated in this opinion, we affirm.
I.
Plaintiff-appellant, Providence Journal Company (the
"Journal"), publishes The Providence Journal and The Sunday
Journal, newspapers of general circulation in the State of Rhode
Island and surrounding areas. Defendant-appellee, Providence
Newspaper Guild (the "Guild"), is the exclusive collective
bargaining representative for certain Journal employees. The
Journal and the Guild entered into several successive collective
bargaining agreements, the last of which expired by its terms on
December 31, 1999. The parties later extended that agreement (the
"1994-1999 Contract") through January 31, 2000. Because there were
no further extensions, both parties agree that the Contract expired
after January 31, 2000.
Article V of the Contract generally creates a grievance
arbitration procedure for the resolution of contractual disputes.1
However, the Contract is silent as to whether the parties are
1
Article V reads, in relevant part: "In order that harmonious
relations shall continue unbroken between the Parties, any dispute
arising from the interpretation of this contract, disputes
regarding discharges, discipline, wages and disputes concerning
employment or operating conditions [shall be] subject to grievance
arbitration."
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obligated to submit disputes to arbitration after the expiration of
the Contract.
After expiration of the Contract, in a letter dated
February 8, 2000, the Journal notified the Guild that the dues
checkoff, union security, and arbitration provisions of the
Contract were no longer valid. The Guild filed a grievance with
the Journal on February 11, 2000, eleven days after the expiration
of the Contract, asserting violations of both Article II of the
Contract and Memorandum of Agreement No. 8 ("MOA 8"), a side
agreement incorporated into the Contract. Specifically, the
grievance protested the Employer’s unilateral termination of the
parties’ union security and dues checkoff procedures following the
expiration of the Guild Contracts.
The union security clause, detailed in Article II,
Section 5, required, as a condition of employment, that the
Journal's employees covered by the Contract be Guild members "for
the duration of this Agreement." By the terms of MOA 8, the
parties negotiated an "evergreen clause" intended to ensure the
uninterrupted effectiveness of the union security provision through
the expiration of the next succeeding agreement. MOA 8 states in
relevant part at paragraph 11:
The provisions of Article II, Section 5 in the
News and Advertising Agreements shall be
continuously in force, to the extent permitted
by law, from the date of this Agreement until
expiration of the Collective Bargaining
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Agreement which succeeds the current
Collective Bargaining Agreement.
The Guild argued that the Journal’s cancellation of union security
during the current contractual hiatus was a violation of MOA 8.
The Guild further protested the Journal’s unilateral
termination of dues checkoff, asserting a violation of Article II,
Section 4 of the Contract. Appellees argue that this provision, on
its face, contemplated the continued effectiveness of dues checkoff
following contract expiration because dues checkoff required
revocation by the employee and not the employer. Specifically,
Article II, Section 4 provides that this provision "shall remain in
effect until revoked by the employee . . . but shall be irrevocable
for a period of one (1) year from the date of the assignment, or
until the termination of the collective bargaining agreement,
whichever occurs sooner."
The Guild ultimately invoked arbitration by a letter
dated March 9, 2000. The Journal refused to participate in the
arbitration of the Guild’s grievance and instead commenced suit in
the District Court of Rhode Island to enjoin the American
Arbitration Association from processing the matter. The District
Court held a hearing on March 15, 2001, on the parties' cross-
motions for summary judgment. The district court granted the
Guild's motion for summary judgment and ordered the Journal to
arbitrate the dispute in accordance with the Contract. The Journal
filed this appeal.
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II.
Summary judgment is appropriate where "there is no
genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
This Court reviews the district court's entry of summary judgment
de novo, re-examining the facts in the light most amiable to the
unsuccessful party. See Fed. R. Civ. P. 56(c); Nat'l Tower LLC v.
Plainville Zoning Bd. of Appeals, 297 F.3d 14, 17 (1st Cir. 2002).
The expiration of a collective bargaining agreement does
not necessarily extinguish a party's obligation to arbitrate
grievances. In fact, a presumption favors arbitration in such
circumstances. Litton Fin. Printing Div. v. NLRB, 501 U.S. 190,
204 (1991) (finding a presumption in favor of post-expiration
arbitration of matters and disputes arising out of the relation
governed by the contract unless "negated expressly or by clear
implication") (hereinafter Litton); Nolde Bros., Inc. v. Local No.
358, 430 U.S. 243, 255 (1977) (stating that "the parties' failure
to exclude from arbitrability contract disputes arising after
termination . . . affords a basis for concluding that they intended
to arbitrate all grievances"). We believe that the district court
correctly employed this presumption in the present case.
Much of the district court's decision rests on the
precise language of the three provisions at issue here. The
district court found that, on their face, MOA 8 and the dues
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checkoff and union security provisions evidenced the parties'
intent, and contractual obligation, to arbitrate all disputes. A
literal reading of these provisions, according to the district
court, confirms that the parties intended these benefits to
continue after expiration. They, thus, "arose under the contract"
and satisfy the Litton test for post-expiration arbitrability.2
501 U.S. at 205-06. After further examining both of these
provisions, we too believe that they survive expiration of the
collective bargaining agreement.
A. Dues Checkoff
Because Article II, Section 4 clearly contemplates the
continued effectiveness of the dues checkoff provision, it is
properly subject to arbitration. While employers do not have a
statutory obligation to continue such dues checkoff once collective
bargaining agreements have expired, such obligations may be imposed
by contract. Frito-Lay, Inc., 243 N.L.R.B. 137, 139 (1979). Here,
Journal employees "voluntarily executed checkoff authorizations
which expressly contemplated the possibility of periods when no
2
In Litton, the Court explained:
A post-expiration grievance can be said to arise under
the contract only where it involves facts and occurrences
that arose before expiration, where an action taken after
expiration infringes a right that accrued or vested under
the agreement, or where, under normal principles of
contract interpretation, the disputed contractual right
survives expiration of the remainder of the agreement.
501 U.S. at 205-06 (emphasis added).
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contract would be in effect." Id. This creates a contractual
obligation. See Lowell Corrugated Container Corp., 177 N.L.R.B.
169, 173 (1969). Furthermore, "where, under normal principles of
contract interpretation the disputed contractual right survives
expiration of the remainder of the agreement," a post expiration
grievance is arbitrable. Litton, 501 U.S. at 207-08.
Consequently, the dues checkoff provision continues to be
arbitrable.
B. Union Security
While MOA 8's evergreen clause clearly provides that the
union security provision remains in force until the subsequent
contract expires, the parties dispute whether the original contract
was the one which expired on January 31, 2000 or a prior contract.
This dispute is central because it determines whether MOA 8 remains
in force or expired on January 31, 2000. Both parties agree that
they enacted MOA 8 during the 1994-1996 contract. However, the
Journal argues that the 1994-1999 Contract was the "succeeding"
agreement contemplated by MOA 8, and as such, the evergreen clause
expired on January 31, 2000. The Guild, on the other hand, argues
that the 1994-1999 Contract was a contract extension, rather than
a distinct successor agreement. Under this argument, the evergreen
clause does not come into effect until January 31, 2000, when it
provides union security through the contractual hiatus and any
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successor agreement. Since the parties have yet to agree on a
succeeding contract, it remains in effect.
Fortunately, the language of the 1994-1999 Contract
resolves the issue. The title page of the 1994-1999 Contract
instructs that the parties’ agreements are in effect from
"January 1, 1994 through December 31, 1996 as amended and extended
January 1, 1997 through December 31, 1999." (Emphasis added.)
Furthermore, the preamble of the 1994-1999 Contract further states:
It is agreed that the Collective Bargaining
Agreement dated April 25, 1995, and effective
January 1, 1994 through December 31, 1996, is
extended in all its terms and conditions,
including Side Letters of Agreement, except as
provided hereinafter, and this AGREEMENT is
made a part hereof.
(Emphasis added.) It is clear from this language that the parties
intended to extend their existing agreement rather than create a
new, succeeding, one. As a result, MOA 8 continues to make the
issue of union security arbitrable.
III.
For the reasons outlined in the text of this opinion, the
district court's grant of summary judgment is affirmed. Costs are
taxed against appellant.
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