NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
INTERNATIONAL BROTHERHOOD OF No. 20-35021
ELECTRICAL WORKERS, LOCAL 1547,
AFL-CIO, D.C. No. 3:19-cv-00160-SLG
Plaintiff-Appellee,
MEMORANDUM*
v.
ALASKA COMMUNICATIONS
SYSTEMS HOLDINGS, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Submitted October 7, 2021**
Seattle, Washington
Before: PAEZ, M. SMITH, and NGUYEN, Circuit Judges.
Defendant Alaska Communications Systems Holdings, Inc. (“Alaska
Communications”) and Plaintiff International Brotherhood of Electrical Workers,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Local 1547, AFL-CIO (“IBEW”) entered into a collective bargaining agreement
(“CBA” or “the Agreement”) that governs the terms and conditions of certain
individuals employed by Alaska Communications. Alaska Communications
refused to grant voluntary recognition under the CBA to a group of employees who
work in Oregon, contending that the CBA’s scope is limited to Alaska. IBEW
filed a grievance and sought to arbitrate the grievance, but Alaska Communications
refused, arguing it was outside the scope of the CBA’s arbitration provision.
Relying on Dennis L. Christensen General Building Contractor, Inc. v.
General Building Contractor, Inc., 952 F.2d 1073 (9th Cir. 1991), the district court
concluded that the parties’ dispute was arbitrable because it involved interpreting
the CBA’s substantive provisions. Reviewing de novo, Westinghouse Hanford Co.
v. Hanford Atomic Metal Trades Council, 940 F.2d 513, 516 (9th Cir. 1991), we
agree and affirm.1
The parties dispute the scope of the CBA’s arbitration provision in Section
4.4. In relevant part, Section 4.4 provides that the arbitrator’s authority “shall be
limited to determining questions directly involving the interpretation or application
of specific provisions of [the CBA], and no other matter shall be subject to
arbitration hereunder.” The scope of the Agreement as a whole is defined in
Section 1.3 and provides:
1
We have jurisdiction under 28 U.S.C. § 1291.
2
This Agreement is applicable, within the State of Alaska, to all work
within the scope of those job descriptions listed in the wage schedule
in Appendix 1 and will be applicable to other positions or job
classifications as agreed between the Union and [the] Company.
Alaska Communications contends that Section 1.3 specifically exempts disputes
regarding out-of-state work from the Agreement’s broad grievance and arbitration
provisions.
In determining whether a grievance is arbitrable, our function is limited to
interpretation of the arbitration clause, rather than the substantive provisions of the
Agreement. Dennis L. Christensen, 952 F.2d at 1077 (first citing Haig Berberian,
Inc. v. Cannery Warehousemen, 535 F.2d 496, 499 (9th Cir. 1976) (per curiam);
and then citing Westinghouse Hanford Co., 940 F.2d at 521). The arbitration
clause in the CBA is broad, covering all disputes related to the terms of the
Agreement, including disputes about “the interpretation or application of [a]
specific provision of [the] Agreement.” Because there is no express provision in
the CBA excluding a particular grievance from arbitration, only “the most forceful
evidence of a purpose to exclude the claim from arbitration” can overcome the
presumption in favor of arbitration. AT&T Techs. v. Commc’ns. Workers of Am.,
475 U.S. 643, 650 (1986) (quoting United Steelworkers of Am. v. Warrior & Gulf
Nav. Co., 363 U.S. 574, 584-85 (1960)).
Alaska Communications presents no such evidence. It generally argues that
Section 1.3 of the CBA, which provides that the “Agreement is applicable within
3
the state of Alaska,” precludes arbitration of any dispute concerning employees
outside of Alaska. We rejected a similar argument involving a geographic scope
provision in Dennis L. Christensen. 952 F.2d at 1077–78. There, we held that we
must “look only to the contract’s arbitration clause, rather than to the substantive
provisions of the agreement, to determine whether a dispute is arbitrable.” Id. at
1077. Section 1.3 does not mention arbitration at all, let alone expressly carve out
the disputed issue from the CBA’s grievance and arbitration provisions.
Alaska Communications attempts to distinguish Dennis L. Christensen
because that case involved a “modification” clause. But the parties’ CBA also
contains a modification clause, specifying the circumstances when the Agreement
will be expanded to cover certain employees. Alaska Communications further
attempts to distinguish Dennis L. Christensen by arguing that modifications to the
labor agreements in that case concerned the geographic limits of the agreements’
coverage. There, however, we also held that the geographic coverage provisions of
the agreements at issue did “not establish that disagreements in interpreting the
modification provision of the master labor agreement were not to be arbitrated like
any other disputes concerning the interpretation or application of that provision.”
952 F.2d at 1077 (emphasis added) (quotation marks omitted). Alaska
Communications cites no caselaw supporting its contention that a provision
governing the scope of an agreement restricts the reach of its arbitration provision.
4
Fundamentally, the parties dispute whether a particular provision of the
CBA can be invoked for out-of-state employees. That is a dispute about “the
interpretation or application of [a] specific provision of [the] Agreement,” and thus
it is covered by the CBA’s arbitration clause. See id.; Haig Berberian, 535 F.2d at
498–99.
AFFIRMED.2
2
Appellee’s Request for Judicial Notice (Dkt. No. 35) is denied as moot because
we have resolved this appeal in their favor without considering the additional
documents.
5