Brent Elec. v. Int'l Bhd. of Elec. Workers Local Union No. 584

110 F.4th 1196

BRENT ELECTRIC COMPANY, INC., Plaintiff Counter Defendant-Appellant, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 584, Defendant Counter Plaintiff-Appellee International Brotherhood of Electrical Workers; National Electrical Contractors Association, Amici Curiae.

No. 23-5108

United States Court of Appeals, Tenth Circuit

FILED August 6, 2024

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:21-CV-00246-CRK-CDL)

Michael D. Oesterle, King & Ballow, Nashville, Tennessee (Mark E. Hunt and Marykate E. Williams, King & Ballow, Nashville, Tennessee, and Kevin P. Doyle, and Alex R. Telarik, Pray Walker, P.C., Tulsa, Oklahoma, with him on the briefs), for Plaintiff Counter Defendant-Appellant.

Glenda L. Pittman, Glenda Pittman & Associates, P.C., Austin, Texas (Frank W. Frasier, Frasier, Frasier & Hickman, LLP, Tulsa, Oklahoma, with her on the brief), for Defendant Counter Plaintiff-Appellee.

Robert D. Kurnick, Sherman Dunn, P.C., Washington, D.C., filed an Amici Brief for the National Electrical Contractors Association and the International Brotherhood of Electrical Workers, in support of Defendant Counter Plaintiff-Appellee.

Before PHILLIPS, KELLY, and MORITZ, Circuit Judges.

PHILLIPS, Circuit Judge.

Brent Electric Company appeals the district court's enforcement of an arbitration award that imposed on Brent a renewed three-year collective-bargaining agreement (CBA) with Local Union No. 584 of the International Brotherhood of Electrical Workers (the Union). Brent objects that the imposed CBA contains permissive subjects of bargaining, arguing that it did not clearly and unmistakably waive its purported statutory right to refuse the imposition of permissive subjects, and that such an award violates public policy.

This dispute requires us to consider two separate lines of cases carrying ostensibly contradictory standards: those applying the presumption of arbitrability absent forceful evidence of an intent not to arbitrate; and those requiring a party's clear and unmistakable waiver of a statutory right.

We reject Brent's invitation to confuse the two and agree with the Union that, by agreeing to the interest-arbitration clause in the 2018 CBA, Brent consented to submit both permissive and mandatory subjects of bargaining to arbitration if the parties could not agree on the terms of a new CBA. We therefore affirm the district court and hold Brent to its contractual obligations.¹

BACKGROUND

I. Factual Background

Brent and the Union have a long-standing relationship dating back to 1996, when Brent signed a Letter of Assent authorizing the Eastern Oklahoma Chapter of the National Electrical Contractors Association (NECA) to negotiate with the Union on Brent's behalf. During the times relevant to this dispute, the Union's relationship with Brent was enabled by Section 8(f) of the Labor-Management Relations Act, which exempts employers in the building and construction industry from the general prohibition on making an agreement with a union before a union has majority-employee support.² See 29 U.S.C. §§ 158(f), 159(a); Sheet Metal Workers' Int'l Ass'n, Loc. Union No. 2 v. McElroy's, Inc. (McElroy's), 500 F.3d 1093, 1097 (10th Cir. 2007) ("Section 8(f) thus creates an exception to the NLRA's general rule prohibiting a union and an employer from signing a collective bargaining agreement recognizing the union as the exclusive bargaining representative before a majority of employees have authorized the union to represent their interests.").

During early 2018, NECA and the Union negotiated and agreed to the CBA at issue, which was effective from June 1, 2018, through May 31, 2021 (the 2018 CBA). Relevant to this appeal, the 2018 CBA included an interest-arbitration clause, Section 1.02(d), which was the same as the interest-arbitration clause included in the 2015 CBA:

Unresolved issues or disputes arising out of the failure to negotiate a renewal or modification of this agreement that remain on the 20th of the month preceding the next regular meeting of the Council on Industrial Relations for the Electrical Contracting Industry (CIR) may be submitted jointly or unilaterally to the [CIR] for adjudication. Such unresolved issues or disputes shall be submitted no later than the next regular meeting of the [CIR] following the expiration date of this agreement or any subsequent anniversary date. The [CIR's] decisions shall be final and binding.

App. vol. I, at 48.

The negotiations also resulted in a memorandum of understanding (MOU) between the Union, NECA, and another electrical contractor, which detailed Brent's obligations to contribute to the Union pension plan. The 2018 CBA incorporated the MOU as Addendum Four.³ See App. vol. I, at 46 (listing Addendum Four in the 2018 CBA's table of contents); Brent Elec. Co., Inc. v. Int'l Bhd. of Elec. Workers Loc. Union No. 584, No. 21-CV-00246, 2022 WL 16973249, at *5 n.9 (N.D. Okla. Nov. 16, 2022) ("The provisions at Addendum Four were no less a part of the 2018 CBA, despite being an addendum....").

In September 2020, Brent wrote to NECA and the Union to provide notice of its termination and revocation of the Letter of Assent, including its authorization for NECA to act as its bargaining representative for matters related to the CBA. Two months later, Brent provided notice to NECA and the Union of its intent to stop making contributions to the Union pension fund under the MOU.

In February 2021, the Union responded by submitting a grievance to NECA's Labor Management Committee (LMC), claiming that Brent had violated Addendum Four of the CBA. The LMC agreed with the Union, ruling that Brent was "in violation of Addendum 4 of the CBA" and asking Brent to "correct December contribution monies ... and any subsequent payments going forward." App. vol. I, at 114. In a still-pending related action, the Union filed a complaint in the Northern District of Oklahoma against Brent, asking the court to confirm and enforce the LMC decision, and Brent filed counterclaims.

Also in February 2021, Brent wrote to the Union, expressing its purported "desire[ ] to reach a prompt successor Agreement with the Union." App. vol. II, at 118. But in the letter, Brent listed twenty-one "Articles/Sections from the expiring" 2018 CBA that it asserted were "permissive subjects of bargaining under established federal labor law" and thus beyond the Union's authority to "lawfully insist" be included in the 2021 CBA. Id. at 119. It also asserted that those subjects could not be imposed through interest arbitration. Among the objected-to sections were Section 1.02(c), the evergreen clause,⁴ and Section 1.02(d), the interest-arbitration clause. On that basis, Brent omitted the sections from its proposed agreement. Brent also listed three sections it asserted were "illegal subjects of bargaining," and it likewise omitted them from its proposed CBA. Id. Brent did not assert that the interest-arbitration clause was an illegal subject of bargaining.

On April 9, 2021, the Union sent a letter to Brent stating its intent to submit to the arbitrator, the Council on Industrial Relations for the Electrical Contracting Industry (CIR), "unresolved issues that remain between the parties" in accordance with the interest-arbitration clause in Section 1.02(d) of the 2018 CBA. Id. at 144. This was a unilateral submission and made over Brent's objection.

In May 2021, before the 2018 CBA expired, the CIR issued its preliminary decision, which included a new CBA. The CIR directed the parties "to sign and implement immediately the inside agreement which is attached hereto and hereby made a part of this decision." Id. at 195. Brent wrote to the CIR, objecting to the inclusion of what it asserted were permissive subjects of bargaining, including the evergreen clause. It also objected to the inclusion of the MOU on pension contributions as Addendum Four. Brent did not object to the 2021 CBA's new arbitration provision.

The next month, the CIR issued a second decision, including a revised version of the CBA, which corrected only "a clerical error" and provided Brent no relief for "the numerous errors and omissions" Brent had raised in its May objection letter. App. vol. I, at 21. The CIR responded to Brent's letter, "not[ing] that Brent Electric's letter of May 30, 2021, requests the deletion of several other provisions, which that letter describes as permissive subjects of bargaining." App. vol. III, at 211. It explained: "Those provisions have not been deleted for two reasons: 1) In each case, they are among the '[u]nresolved issues or disputes' that your company explicitly agreed to submit to arbitration, and 2) the CIR does not agree that those provisions are permissive subjects of bargaining." Id. The CIR then imposed its award—the 2021 CBA.

The 2021 CBA contained a different interest-arbitration provision than the 2018 CBA. The 2021 version required mutual agreement before any future interest arbitration could be submitted to the CIR and removed the unilateral provision included in the 2018 CBA's interest-arbitration clause:

(d). In the event that either party, or an Employer withdrawing representation from the Chapter or not represented by the Chapter, has given a timely notice of proposed changes and an agreement has not been reached by the expiration date or by any subsequent anniversary date to renew, modify, or extend this Agreement, or to submit the unresolved issues to the [CIR], either party or such an Employer, may serve the other a ten (10) day written notice terminating this Agreement. The terms and conditions of this Agreement shall remain in full force and effect until the expiration of the ten (10) day period.

(e). By mutual agreement only, the Chapter, or an Employer withdrawing representation from the Chapter or not represented by the Chapter, may jointly, with the Union, submit the unresolved issues to the [CIR] for adjudication. Such

...