UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HCMF CORPORATION, d/b/a Heritage

Hall-Big Stone Gap,

Plaintiff-Appellee,

v.

DISTRICT 28, UMWA,

Defendant-Appellant, No. 96-2304

and

AMERICAN ARBITRATION ASSOCIATION;

JEROME T. BARRETT, Arbitrator,

individually,

Defendants.

Appeal from the United States District Court

for the Western District of Virginia, at Abingdon.

James C. Turk, District Judge.

(CA-96-62-A)

Argued: June 5, 1997

Decided: July 9, 1997

Before RUSSELL, HAMILTON, and MOTZ,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Daniel H. Sachs, UNITED MINE WORKERS OF

AMERICA, DISTRICT 28, Castlewood, Virginia, for Appellant.
Bayard Easter Harris, THE CENTER FOR EMPLOYMENT LAW,

P.C., Roanoke, Virginia, for Appellee. ON BRIEF: John Alexander

Boone, THE CENTER FOR EMPLOYMENT LAW, P.C., Roanoke,

Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

The HCMF Corporation ("HCMF"), operator of Heritage Hall

nursing home, dismissed Lucille Dean, a nursing assistant, on September 8, 1995, for an incident involving a nursing home resident that

occurred six days earlier. At the time of Dean's dismissal there was

no collective bargaining agreement ("CBA") in effect between HCMF

and the United Mine Workers of America (the "UMWA"), which represented Dean. The parties had yet to negotiate a new CBA and the

previous CBA had expired on January 10, 1995 ("the old CBA").

Nonetheless, in October 1995, Dean filed a wrongful discharge grievance against HCMF, and the UMWA made a demand for the arbitration of Dean's grievance with the American Arbitration Association

(the "AAA") pursuant to the terms of the general arbitration provision

in the old CBA. HCMF refused to arbitrate and urged the AAA to dismiss the UMWA's arbitration demand.

On February 20, 1996, the parties entered into a new CBA, which

had a retroactive effective date of January 1, 1996 ("the new CBA").

Two months later the AAA appointed an arbitrator to hear and determine Dean's grievance. HCMF immediately challenged UMWA's

action in district court. HCMF sought to enjoin the arbitration of

Dean's grievance pursuant to the old CBA (Count I). It also sought

damages for the UMWA's alleged breach of a settlement agreement

between HCMF and the UMWA (Count II).

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The district court granted summary judgment in favor of HCMF on

Count I. It reasoned the dispute concerning Dean's discharge did not

arise out of the old CBA, and the old CBA did not provide for postexpiration arbitration. Accordingly, the district court enjoined the arbitration of Dean's grievance. This appeal followed. Count II is still

pending in the district court.

I.

The UMWA contends the district court erred by granting HCMF

summary judgment on Count I and by enjoining the arbitration of

Dean's wrongful discharge claim. First, the UMWA asserts that

HCMF's obligation to arbitrate Dean's grievance survived the expiration of the old CBA. Alternatively, it argues that Dean's grievance is

arbitrable under the new CBA. We review the grant of summary judgment de novo.1 HCMF is entitled to summary judgment if there is no

genuine issue of material fact for trial.2 

A.

Arbitration is a matter of private contract.3 Whether a party is

bound to arbitrate, and whether the disputed issue is arbitrable, is a

question for the court.4 The court, however, will not compel a party

to arbitrate unless the party has contractually consented to arbitrate its

disputes.5 In labor relations cases, the arbitration provision of the

expired agreement survives the expiration of the agreement and compels the employer to arbitrate the grievance only when the postexpiration grievance arises out of the expired agreement. 6 A postexpiration

grievance arises under the agreement:

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1 Nguyen v. CNA Corp., 44 F.3d 234, 236 (4th Cir. 1995).

2 Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).

3 Glass v. Kidder Peabody & Co. Inc., No. 91-1756, 1997 WL 269344,

at *6 (4th Cir. May 22, 1997).

4 Id. at *7.

5 AT&T Technologies, Inc. v. Communications Workers of America,

475 U.S. 643, 648 (1986).

6 Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 205-06 (1991).

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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.7

In the instant case, HCMF and the UMWA entered into the old

CBA on January 11, 1993. The CBA contained a general arbitration

provision, which provided for the arbitration of disputes involving the

interpretation and application of the terms of the agreement. The arbitration provision did not contain a rollover provision, nor did it

expressly provide for the postexpiration arbitration of grievances arising after the CBA's expiration date. The CBA expired by its own

terms on January 10, 1995. HCMF dismissed Dean nine months after

the CBA's expiration, but four months before January 1, 1996 -- the

effective date of the new CBA.

The UMWA insists that the old CBA granted Dean a vested or

accrued right to be dismissed only for just cause. Even if UMWA is

right, we find no basis for the UMWA's assertion that this right survived the expiration of the agreement. We believe HCMF and the

UMWA did not contract to arbitrate grievances arising after January

10, 1995. Article 27 of the old CBA specifically states that "[a]ll

rights and benefits inuring to Employees under the terms and provisions of this Agreement shall terminate on the last day of this Agreement, notwithstanding anything to the contrary." Accordingly, we

hold that any right to arbitrate her dismissal expired when the agreement expired.

We also conclude that Dean's grievance did not arise out of the old

CBA. Her dismissal was performance related and involved facts and

occurrences that arose nine months after the CBA's expiration date.

Accordingly, Dean's discharge did not arise out of the old CBA.

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7 Id. at 206.

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B.

Next we turn to the UMWA's alternate theory that HCMF is obligated to arbitrate Dean's grievance under the new CBA. We disagree

for the following reasons. The parties signed the new CBA on February 20, 1996, but agreed to a retroactive effective date of January 1,

1996. The new CBA's dispute resolution provision mandates that

employee grievances be mediated instead of arbitrated. Unlike other

provisions in the new CBA that contain effective dates, which

expressly differ from or precede the CBA's effective date, the mediation provision does not state an effective date independent of the

CBA's effective date. Finally, the provision only provides for the

mediation of grievances arising out of the new CBA. It fails to provide for the mediation of grievances, which arose during the hiatus

period. Hence, HCMF is not obligated to arbitrate Dean's grievance

under the new CBA.

II.

For the foregoing reasons, we hold that the district court properly

concluded that HCMF and the UMWA did not contract to arbitrate

employee grievances arising during the hiatus period. Accordingly,

the district court's grant of summary judgment in favor of HCMF and

its order enjoining the arbitration of Dean's grievance are

AFFIRMED

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