UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

E. I. DUPONT DE NEMOURS AND

COMPANY, INCORPORATED,

Plaintiff-Appellee,

v. No. 94-2222

MARTINSVILLE NYLON EMPLOYEES'

COUNCIL CORPORATION,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Danville.

Jackson L. Kiser, Chief District Judge.

(CA-94-8)

Argued: January 29, 1996

Decided: February 28, 1996

Before MURNAGHAN, ERVIN, and WILKINS, Circuit Judges.

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Affirmed by unpublished opinion. Judge Wilkins wrote the opinion,

in which Judge Murnaghan and Judge Ervin joined.

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COUNSEL

ARGUED: Jonathan Gans Axelrod, BEINS, AXELROD,

OSBORNE, MOONEY & GREEN, P.C., Washington, D.C., for

Appellant. Donald Lester Creach, HUNTON & WILLIAMS, Richmond, Virginia, for Appellee. ON BRIEF: Hill B. Wellford, Jr.,

HUNTON & WILLIAMS, Richmond, 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Unpublished opinions are not binding precedent in this circuit.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

WILKINS, Circuit Judge:

Martinsville Nylon Employees' Council Corporation (the Union)

appeals a decision by the district court granting a motion by E. I.

DuPont de Nemours and Company, Incorporated (DuPont) to vacate

an arbitration award entered in favor of the Union. Because we agree

with the district court that the question of whether the dispute

between DuPont and the Union was arbitrable was one for the court

and further agree that the dispute was not subject to arbitration, we

affirm.

I.

In 1989, DuPont proposed a Reward and Recognition Program

(R & R Program) at its Martinsville plant. Because the collective bargaining agreement1 between the parties did not provide for the R & R

Program, and because the parties were unable to reach an agreement

to modify this contract to include the program, DuPont implemented

it unilaterally.

The Union subsequently filed a grievance asserting that DuPont

was not applying the R & R Program equitably. When grievance proceedings failed to resolve the dispute, the Union sought arbitration

under the collective bargaining agreement, which provided for arbitration of "[a]ny question as to the interpretation of this Agreement

or as to any alleged violation of any provision of this Agreement."

DuPont submitted to arbitration, while contesting that the arbitration

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1 The parties agree that this collective bargaining agreement governed

the parties' conduct at the time, and therefore controls the resolution of

the present controversy, by virtue of their agreement to extend it on a

day-to-day basis following its expiration and during their ongoing negotiations to secure a new collective bargaining agreement.

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clause required it to arbitrate a dispute concerning the R & R Program.

Although the arbitrator agreed with DuPont that the R & R Program had never been incorporated into the collective bargaining

agreement, he concluded that the dispute concerning DuPont's management of the R & R Program nevertheless was arbitrable. The arbitrator reasoned that an implied covenant of good faith and fair dealing

in the collective bargaining agreement imposed a duty upon DuPont

to deal in good faith with respect to programs it implemented unilaterally. Consequently, the arbitrator ruled that the allegation that DuPont

had breached its duty of good faith by administering the program in

a discriminatory manner was arbitrable. Proceeding to address the

merits of the grievance, the arbitrator ruled against DuPont.

Thereafter, DuPont brought this action pursuant to§ 301 of the

Labor Management Relations Act, 29 U.S.C.A. § 185 (West 1978), to

vacate the arbitration award entered in favor of the Union, and the

Union filed a counterclaim for enforcement. The district court ruled

that the arbitrator had exceeded his authority by entering the award

and granted DuPont's motion to vacate it. From this final decision,

the Union appeals.

II.

The first question we must address is the standard to apply in

reviewing the decision of the arbitrator concerning the arbitrability of

the dispute. The Union contends that the decision of whether the dispute was arbitrable was one for the arbitrator and, accordingly, that

a court should defer to that decision except in a narrow set of circumstances not present here. DuPont, however, argues that the decision

is one for the court and, therefore, that no deference should be given

to the arbitrator's decision.

"`[A]rbitration is a matter of contract and a party cannot be

required to submit to arbitration any dispute which he has not agreed

so to submit.'" AT&T Technologies, Inc. v. Communications Workers,

475 U.S. 643, 648 (1986) (quoting United Steelworkers v. Warrior &

Gulf Navigation Co., 363 U.S. 574, 582 (1960)). This principle

applies to the merits of a dispute as well as to the question of who

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should decide whether a dispute is subject to arbitration. First Options

of Chicago, Inc. v. Kaplan, 115 S. Ct. 1920, 1923-24 (1995). Accordingly, if the parties have agreed that the arbitrator should resolve

questions concerning whether a dispute is arbitrable, courts should

grant considerable deference to the arbitrator's decision; but if the

parties have not agreed to allow the arbitrator to decide this question,

it is one for the court. Id.; see AT&T Technologies, 475 U.S. at 648-

49.

In deciding whether the parties have agreed to submit the question

of arbitrability to arbitration, a court applies ordinary principles of

contract interpretation. See First Options, 115 S. Ct. at 1924. And,

when the parties have remained silent concerning who should decide

whether an issue must be submitted to arbitration, or when the application of principles of contract interpretation leads to ambiguity concerning whether that issue is one for the arbitrator, a court must

assume that the issue is one for the court. Id. In other words, "[u]nless

the parties clearly and unmistakably provide otherwise, the question

of whether the parties agreed to arbitrate is to be decided by the court,

not the arbitrator." AT&T Technologies, 475 U.S. at 649; accord First

Options, 115 S. Ct. at 1924.

The arbitration clause in the collective bargaining agreement

between DuPont and the Union contains no provision clearly and

unmistakably agreeing to submit the question of arbitrability to

arbitration.2 Hence, we decide whether DuPont was required to submit the dispute concerning the R & R Program to arbitration without

deferring to the decision of the arbitrator.

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2 The Union also claims that because DuPont voluntarily submitted the

question of arbitrability to the arbitrator in this instance, instead of

requiring the Union to obtain a court order compelling arbitration, it has

waived any opposition to the arbitrator deciding whether the dispute was

arbitrable. This argument, however, lacks merit. If a party submits to

arbitration while asserting that the arbitrator lacks the authority to proceed, as DuPont did here, that party has not waived its argument that

arbitration was improper. See First Options, 115 S. Ct. at 1925.

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III.

Having concluded that the question is one for the court, we turn to

consider it.3 As with the previous question, the `resolution of this

issue requires the application of general rules of contract interpretation. See First Options, 115 S. Ct. at 1924. But, unlike the prior question, any doubt concerning the scope of the questions to be arbitrated

should be resolved in favor of arbitration. See id.

Again, the arbitration clause in the contract between the parties

requires the arbitration of "[a]ny question as to the interpretation of

this Agreement or as to any alleged violation of any provision of this

Agreement." From this plain language, it is obvious that because no

provision of the agreement governed the R & R Program, the arbitration clause did not require arbitration of disputes concerning it. The

Union maintains, however, that all collective bargaining agreements

contain an implied obligation of good faith and fair dealing and that

since its claim is that DuPont violated this provision of the collective

bargaining agreement, it is asserting a violation of the agreement that

is within the scope of the arbitration clause.

We agree with the district court and reject this argument. Assuming

that it were appropriate to interpret the collective bargaining agreement as containing an implied covenant of good faith and fair dealing

--a question that we need not decide today--our decision would

remain unchanged. Such an implied covenant would only control the

conduct of a party in areas governed by the collective bargaining

agreement; it would not impose a duty to act in good faith in matters

not subject to the agreement. Cf. Cumberland Typographical Union

No. 244 v. Times & Alleganian Co., 943 F.2d 401, 406-07 (4th Cir.

1991) (holding similar arbitration clause required submission to arbitration of claim that employer violated implied duty of good faith

with respect to a term of the collective bargaining agreement);

Restatement (Second) of Contracts § 205 (1981) ("Every contract

imposes upon each party a duty of good faith and fair dealing in its

performance . . . ."). Therefore, an alleged violation of an implied

covenant of good faith and fair dealing would not render arbitrable

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3 We review de novo the decision of the district court. See First

Options, 115 S. Ct. at 1926.

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matters that were not otherwise subject to arbitration under the agreement.

A contrary conclusion would render nugatory language in the arbitration clause purporting to limit the matters that must be submitted

to arbitration. Rather than agreeing to submit all disputes between the

parties to arbitration, DuPont and the Union agreed to submit only

those controversies alleging a violation of the collective bargaining

agreement or requiring an interpretation of that agreement. Construing the agreement in the manner propounded by the Union would

effectively negate this limitation, and we will not countenance such

an unintended result.

In sum, we conclude that the plain language of the collective bargaining agreement requires the parties to submit to arbitration only

allegations of violations of the provisions of the agreement or questions requiring its interpretation. An allegation that DuPont violated

an implied covenant of good faith and fair dealing with respect to a

matter not governed by the collective bargaining agreement is not

encompassed within the unambiguous arbitration clause. Therefore,

DuPont was not required to submit the dispute concerning the R & R

Program to arbitration.

AFFIRMED

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