United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 25, 2014 Decided April 11, 2014

No. 13-7033

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,

LOCAL 1200,

APPELLANT

v.

DETROIT FREE PRESS, INC., A SUBSIDIARY OF GANNETT CO.,

INC., DOING BUSINESS AS WUSA-TV,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-00484)

Robert E. Paul argued the cause and filed the briefs for

appellant.

Donald J. Munro argued the cause and filed the brief for

appellee.

Before: GRIFFITH, Circuit Judge, and EDWARDS and

RANDOLPH, Senior Circuit Judges.

Opinion for the court filed by Senior Circuit Judge

RANDOLPH.
2

RANDOLPH, Senior Circuit Judge: The International

Brotherhood of Electrical Workers, Local 1200 serves as the

exclusive bargaining representative for “technicians” employed

by WUSA-TV, a Washington, D.C.-based television station.

Between December 29, 2008, and December 31, 2010, the union

and the station operated under a collective bargaining

agreement. In November 2010, with the agreement set to expire,

the parties began negotiating a successor agreement. Although

they extended the 2008 agreement through February 2011,1 the

station refused further extensions. Thus, the parties operated

without a collective bargaining agreement until they negotiated

a successor agreement, which took effect on February 9, 2012.

The 2008 and 2012 agreements contain essentially identical

grievance and arbitration provisions. If a dispute arises the

parties first seek to resolve it through “informal” and then

“formal” grievance conferences. If conferences do not resolve

the grievance, then “either party may demand arbitration by

written notice.” Arbitration is “final and binding on both

parties.”

The two agreements also contain nearly identical provisions

concerning layoffs. Before laying off an employee, the station

and the union “must first bargain . . . in good faith on

alternatives to avoid a layoff.” If layoffs occur, “[p]art-time

Technicians shall be laid off prior to the lay-off of any full-time

Technicians,” and “[l]ayoffs on account of reduction of staff . . .

shall be made in inverse order of seniority.” The latter provision

includes a caveat: “the Station may . . . lay off an employee[] of

higher seniority” if not doing so “would have an adverse effect

on the operation of the Station when all factors are considered.”

1

 The parties dispute precisely when the extension expired, but

they agree that it did not survive beyond the end of February 2011.
3

The station must give two weeks’ written notice before laying

off an employee.

The present dispute began on January 30, 2012, when the

station, by letter, notified technician Karen Peterson that “[her]

position is being eliminated effective today . . . in accordance

with the IBEW collective bargaining agreement.” At the time

she was terminated, Peterson was the most senior technician

working at the station. More than two weeks later, on February

16, the union representative filed a grievance alleging that

“Peterson’s position was unjustly terminated on 1/30/12” in

“violat[ion of] Section 4.17.F [sic] and all other relevant Articles

of the [2008 agreement].” Efforts to resolve the grievance

through conferences failed, and the station refused to arbitrate

the dispute.

The union then filed a complaint in the district court

seeking to compel arbitration. The complaint alleged that by

laying off Peterson, the station breached its contractual

obligations to [1] bargain in good faith before layoffs, [2] lay off

part-time technicians first, and [3] lay off technicians in inverse

order of seniority. The union argued that Peterson’s grievance

was arbitrable under both the 2008 and the 2012 agreements.

The district court granted summary judgment for the station.

Int’l Bhd. of Elec. Workers, Local 1200 v. Detroit Free Press,

Inc., 923 F. Supp. 2d 199 (D.D.C. 2013). Because the grievance

did not “arise under” the 2008 agreement, and the 2012

agreement was not yet in effect, the district court concluded that

the station was not obligated to arbitrate. Id. at 203. The union

timely appealed.

Generally, if a collective bargaining agreement contains an

arbitration clause then courts presume disputes between the

parties are arbitrable. See, e.g., United Steelworkers of Am. v.

Warrior & Gulf Nav. Co., 363 U.S. 574, 582-83 (1960). But that

presumption is “limited to disputes arising under the contract.”
4

Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 205 (1991); see

id. at 209. A grievance filed after the expiration of a collective

bargaining agreement “arise[s] under” that agreement and is

therefore arbitrable only if: [1] “it involves facts and

occurrences that arose before expiration,” [2] a post-expiration

action “infringes a right that accrued or vested under the

agreement,” or [3] “under normal principles of contract

interpretation, the disputed contractual right survives expiration”

of the agreement. Id. at 205-06.

Here, the union argues that Peterson’s grievance is

arbitrable under the 2008 agreement because the company

violated accrued seniority protections by laying her off. We have

previously stated that “[s]eniority is wholly a creation of the

collective agreement and does not exist apart from that

agreement.” Baker v. Newspaper & Graphic Commc’ns Union,

Local 6, 628 F.2d 156, 159-60 (D.C. Cir. 1980) (quoting Local

1251, UAW v. Robertshaw Controls Co., 405 F.2d 29, 33 (2d

Cir. 1968) (en banc)). Even if seniority in the abstract could vest

or accrue, the rights at issue here—seniority-based protections

against layoffs—would not. The 2008 agreement allows the

station to lay off senior technicians first if following seniority

“would have an adverse effect on the operation of the Station

when all factors are considered.” In Litton, the Court considered

a seniority provision that allowed more senior employees to be

laid off unless “other things such as aptitude and ability are

equal.” 501 U.S. at 209. The Litton court held that that provision

was not a vested or accrued right because factors such as

aptitude and ability “do not remain constant, but change over

time.” Id. at 210. So too here, where “all factors” “adversely

[a]ffect[ing]” the station are constantly in flux. As in Litton,

these seniority provisions do not “freeze any particular order of

layoff.” Id. Consequently, they do not create vested or accrued

rights. 
5

Nor do the qualified seniority protections against layoffs

contained in the 2008 agreement survive expiration “under

normal principles of contract interpretation.” Id. at 206. By its

terms, the agreement “bec[a]me effective on December 29,

2008, and shall remain in effect until midnight December 31,

2010”—or, as extended, February 2011. “The most natural

reading of a contract that has defined endpoints . . . is that terms

in the contract apply to events between [those endpoints].” Des

Moines Mailers Union, Teamsters Local No. 358 v. NLRB, 381

F.3d 767, 770 (8th Cir. 2004). The union devotes much effort to

arguing that post-expiration coverage need not be explicit. But

the language and structure of the agreement do not even imply

that the seniority protections against layoffs in this contract

survive expiration. Instead, the union relies entirely on extrinsic

evidence surrounding Peterson’s termination to dispute the

agreement’s natural meaning. That is inadequate. We will not

“use [] extrinsic evidence to create such obligations nowhere

alluded to in the contract” and “unjustifiably deprive the parties

of the limitation of liabilities that is implicit in . . . a written

contract having a definite expiration date.” Bidlack v.

Wheelabrator Corp., 993 F.2d 603, 607-08 (7th Cir. 1993) (en

banc).

Moreover, the union’s extrinsic evidence is itself

ambiguous. The letter terminating Peterson’s employment said

the layoff was “undertaken in accordance with the IBEW

collective bargaining agreement.” The union claims that by

referring to the agreement in its letter and in contemporaneous

oral statements, the station acknowledged that the agreement

survived. But the Station had good reason to act “in accordance

with” the agreement, even post-expiration. The National Labor

Relations Act requires that a company continue to comply with

certain “terms and conditions” (not including arbitration clauses)

of expired collective bargaining agreements. Litton, 501 U.S. at

198-200. Acting otherwise may constitute an unfair labor

practice, subjecting the company to a lawsuit. Id. To avoid that
6

result, companies often continue to operate according to expired

agreements. Doing so does not indicate that the agreement

itself—the only source of any duty to arbitrate—remained in

effect, but only that the NLRB will require a company to

continue to adhere to certain obligations. See, e.g., Int’l Bhd. of

Teamsters, Local Union 1199 v. Pepsi-Cola Gen. Bottlers, Inc.,

958 F.2d 1331, 1335-37 (6th Cir. 1992); see also Litton, 501

U.S. at 200-01. With only ambiguous extrinsic evidence, the

union has failed to disprove the 2008 agreement’s natural

interpretation.

The union also argues that Peterson’s grievance is arbitrable

under the 2012 agreement. We cannot see how. The letter

Peterson received stated that she was terminated on January 30,

2012. The grievance form filed by the union confirms that she

was in fact “terminated on 1/30/12.” Because no agreement was

in effect on that date, the station was not obliged to provide her

with two weeks’ notice. Thus the layoff was effective on the

date Peterson was notified. Nothing in the 2012 agreement

suggests that it requires arbitration of grievances arising before

it became effective.2

 And the union cannot bootstrap itself into

a longer contract duration by waiting to file its grievance over a

pre-contractual dispute.

The judgment of the district court is

Affirmed.

2

 Even if two weeks’ notice were required on January 30, that

would not somehow convert an immediate termination into a

termination two weeks later. Rather, by terminating Peterson on that

date, the station would simply have breached its notice obligation.