* Hon. John R. Gibson, o f the Eig hth Circuit, sitting by

designation. 

# Un ited Sta tes C our t of A pp eals

For the First C ircuit

No. 01-2430 THE PROVIDENCE JOURNAL COMPANY, Plaintiff, Appellant,

v. PROVIDENCE NEWSPAPER GUILD, Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Mary M. Lisi, U.S. District Judge ]

Before Torruella, Circuit Judge , Gibson, * Senior Circuit Judge , and Howard, Circuit Judge . Lincoln D. Almon d , with whom William P. Robinson III and Edwards & Angell, LLP were on brief, for appellant. Barbara L. Camens , with whom Barr & Camens and Richard Humphreywere on brief, for appellee.

October 21, 20021 Article V reads, in relevant part: "In order that harmonious

relations shall continue unbroken between the Parties, any dispute arising from the interpretation of this contract, disputes regarding discharges, discipline, wages and disputes concerning employment or operating conditions [shall be] subject to grievance arbitration." -2-

TORRUELLA , Circ uit Judge . This is an appeal from a district court order to arbitrate a post-expiration grievance that "arose under" the parties' expired collective bargaining agreement. For the reasons stated in this opinion, we affirm. I. Plaintiff-appellant, Providence Journal Company (the "Journal"), publishes The Providence Journal and The Su nda y Journal , newspapers of general circulation in the Stat e of R hode Islandand surrounding areas. Defendant-appellee, Providence Newspaper Guild (the "Guild"), is the exclusive collective bargaining representative for ce rt ain Journal employees. The Journal and th e Gu ild entered into several successive collective bargaining agreements, the last of which expired by its terms on December 31, 1999. The parties later extended that agreement (the "1994-1999 Contract") through January 31, 2000. Because there were

no further extensions, both parties agree that the Contract expired after January 31, 2000.

Article V of the Contract generally creates a grievance arbitration procedure for the resolution of contractual disputes. 1 However, the Contract is silent as to whether the parties are-3-

obligatedto submit disputes to arbitration after the expiration of the Contract.

After expiration of the Contract, in a letter dated February8, 2000, the Journal notified the Guild that the dues checkoff, un ion security, and arbitration provisions of the Contract were no longer valid. The Guild file d a g rievance with the Journal on February 11, 2000, eleven days after the expiration of the Contract, asserting violations of both Article II of the Contract and Memorandum of Agreement No. 8 ("MOA 8"), a side agreement incorporated int o the Contract. Specifically, the grievance protested the Empl oyer ’s unilateral termination of the parties’ union securityand dues checkoff procedures following the expiration of the Guild Contracts.

The union se curityclause, detailed in Article II, Section 5, required, as a condition of employment, that the Journal's employees covered by the Contract be Guild members "for the dur ation of this Agreement." By the terms of MOA 8, the parties negotiated an "evergreen clause" intended to ensure the uninterruptedeffectiveness of the union security provision through the expiration of the next succeedingagreement. MOA 8 states in relevant part at paragraph 11:

The provisions of Article II, Section 5 in the News and Advertising Agreements shall be continuouslyin force, to the extent permitted by law, from the date of this Agreement until expiration of the Collective Bargaining-4- Agreement which succeeds the current Collective Bargaining Agreement. The Guild argued that the Journal’s cancellation of union security during the current contractual hiatus was a violation of MOA 8.

The Guild further protested the Journal’s unilateral termination of dues checkoff, asserting a violation of Article II, Section 4 of the Contract. Appellees argue that this provision, on its face, contemplated the continued effectiveness of dues checkoff following contract expiration because dues checkoff required revocation by the employee and not the empl oye r. Specifically, Article II, Section 4 provides that this provision "shall remain in effect until revoked by the employee . . . but shall be irrevocable for a period of one (1) year from the date of the assignment , o r until the termination o f the collective bargaining agreement, whichever occurs sooner."

The Guild ultimately invoked arbitration by a lette r datedMarch 9, 2000. The Jou rnal refus ed to participate in the arbitration of the Guild’s grievance and insteadcommenced suit in the District Court of Rhode Island to en joi n the American Arbitration Association from processing the matter. The District Court held a hearing on Marc h 15 , 2001, on the parties' crossmotions for summary judgm ent. The district court granted the Guild's motion for summary judgment and ordered the Journal to arbitrate the dispute in accordance with the Contract. The Journal filed this appeal.-5- II. Summary judgme nt is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitledto a judgment as a matter of law." Fed. R. Civ. P. 56(c). This Court reviews the district court's entry of summary judgment de novo , re-examining the facts in the light most amiable to th e unsuccessful party. See Fed. R. Civ. P. 56(c); Nat'l Tower LLC v. Plainville Zoning Bd. of Appeals , 297 F.3d 14, 17 (1st Cir. 2002).

The expiration of a collective bargaining agreement does not necessarily extinguish a party's obl igatio n to arbitrate grievances. In fact, a presumption favors arbitration in such circumstances. Litton Fin. Printing Div. v. NLRB , 501 U.S. 190, 204 (1991) (finding a presumption in favor of post-expiration arbitration of matters and disputes arising out of the relation governedby the contract unless "negated expressly or by clear implication") (hereinafter Litton ); Nolde Bros., Inc. v. Local No. 358 , 430 U.S. 243, 255 (1977) (stating that "the parties' failure to exclude from arbitrability contract disputes aris in g after termination . . . affords a basis for concluding that they intended to arbitrate all grievances"). We believe that the district court correctly employed this presumption in the present case.

Much of the district court's decision rest s on the precise language of the three provisions at issue here. The district court found that, on their fac e, MOA 8 and the dues2 In Litton , the Court explained:

A post -expiration grievance can be said to arise under the contract 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, o r where, under normal principles of contract interpretation, the disputed contractual right survives expiration of the remainder of the agreement . 501 U.S. at 205-06 (emphasis added). -6- c heckoff and union security provisions evidenced the parties ' intent, and contractual obligation, to arbitrate all disputes. A literal reading of these provision s, a ccording to the district court, confirms that the parties intended these benefits to continue after expiration. They, thus, "arose under the contract" andsatisfy the Lit ton test for post-expiration arbitrability. 2 501 U.S. at 205-06. After further examining both of these provisions, we too believe that they survive expiration of the collective bargaining agreement.

A. Dues Checkoff Because Article II, Section 4 cl earl y contemplates the continuedeffectiveness of the dues checkoff provision, it is properlysubject to arbitration. While employers do not have a statutoryobligation to continue such dues checkoff once collective bargaining agreements have expired, such obligations may be imposed bycontract. Frito-Lay, Inc. , 243 N.L.R.B. 137, 139 (1979). Here, Journal employees "voluntarily executed checkoff authorizations which expressly contemplated the possibility of periods when no-7-

contract would be in effect." Id . This cre ates a contractual obligation. See Lowel l Co rrugated Container Corp. , 177 N.L.R.B. 169, 173 (1969). Furthermore, "where, under normal principles of contract interpretation the disputed contractual right survives expiration of the remain der of the agreement," a post expiration grievance is arbitrable. Litton , 501 U.S. at 207-08. Con sequently, the dues checkoff provision continues to b e arbitrable.

B. Union Security While MOA 8's evergreen clause clearly provides that the union security provision rem ains in force until the subsequent contract expires, the parties dispute whether the original contract

was the one which expired on January 31, 2000 or a prior contract. This dispute is central because it determines whether MOA 8 remains in force or expired on January 31, 2000. Both parties agree that theyenacted MOA 8 during the 1994-1996 contract. However, the Journal argues that the 1994-1999 Contract was the "succeeding" agreement contemplated by MOA 8, and as such, the evergreen clause expiredon January 31, 2000. The Guild, on the other hand, argues that the 1994-1999 Contract was a contract extension, rather than

a distinct successor agreement. Under this argument, the evergreen clause does not come into ef fect until January 31, 2000, when it provides union security through the contractual hi atus and any-8-

successor agreement. Since the parties have yet to agree on a succeeding contract, it remains in effect.

Fortunately, the language of the 1994-1999 Contract resolves the issue. The title page of the 1994-1999 Contract instructs that the parties’ agreements are in effect from "January1, 1994 through December 31, 1996 as amended and extended January1, 1997 through December 31, 1999." (Emphasis added.) Furthermore, the preamble of the 1994-1999 Contract further states:

It is agreed that the Collective Bargaining Agreement dated April 25, 1995, and effective January 1, 1994 through December 31, 1996, is extendedin all its terms and conditions, including Side Letters of Agreement, except as providedhereinafter, and this AGREEMENT is made a part hereof. (Emphasis added.) It is clear from this language that the parties intendedto extend their exist ing ag reement rather than create a new, succeeding, one. As a result, MOA 8 continues to make the issue of union security arbitrable. III. For the reasons outlined in the text of this opinion, the district court's grant of summary judgment is affirmed . Costs are taxed against appellant.