* District Judge of the Northern District of Texas, sitting

by designation.

1 United States Court of Appeals

Fifth Circuit



## FILED

August 10, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

No. 03-10053

______________________

LOCAL UNION NO. 898 OF THE INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, AFL-CIO

Plaintiff-Appellant

versus

XL ELECTRIC, INC.

Defendant-Appellee

___________________________________________________

Appeal from the United States District Court for

the Western District of Texas

___________________________________________________

Before KING, Chief Judge, DENNIS, Circuit Judge, and LYNN, *

District Judge.

DENNIS, Circuit Judge:

Local Union No. 898 of the Interna tional Brotherhood of

Elec t rical Workers (“the Union”) appeals the district court’s

judgment refusing to enforce an arbitration award against XL

Electric, Inc. We affirm.

BACKGROUND2

In August 1994, XL Electric signed a Letter of Assent-A, a

pre-hire agreement allowed under section 8(f) of the National Labor

Relations Act (“NLRA”), with the Red River Valley Chapter of the

National Electrical Contractors Association (“Red River”)

authorizing it to act as XL Electric’s representative for

collective bargaining with the Union. The Letter of Assent-A

(“Letter”) was effective from June 1, 1997 to May 31, 2000 and

bound XL Electric to the Inside Agreement (“Agreement”) between Red

River and the Union. The Letter provided that it would remain in

effect until termination by written notice to Red River at least

150 days prior to the current anniversary date of the Agreement,

which was May 31, 2000.

The Agreement contained an interest arbitra tion clause that

provided for the timely submission of unresolved negotiation issues

to arbitration. This clause stated:

Unresolved issues in negotiations that remain on the 20 th

of the month preceding the next regular meeting for the

Council on Industrial Relations, may be submitted jointly

or unilaterally by the parties to this Agreement to the

Council for adjudication prior to the anniversary date of

the Agreement.

Agreement at § 1.02.

On November 12, 1999, more than 150 days prior to the

anniversary dat e, XL Electric sent a letter to Red River and the

Union stating, “This letter is to inform you that we will not be

bound by any new agreements entered into between NECA and the IBEW.3

We will negotiate our own agreement.” This letter also included

several proposals and terms that XL Electric wanted to negotiate.

The parties continued to exchange proposals in an attempt to reach

a new agreement.

The parties never reached a new agreement, and on July 10,

2000, XL Electric sent the Union a letter informing it that their

relationship had ended on June 1, 2000 when the Letter of Assent-A

had expired. Before the Letter’s expiration, XL Electric abided by

the terms of the Letter by paying the wage and benefits required by

the Agreement. After the Letter expired, XL Electric began hiring

employees not referred from the Union hiring hall and changed the

w ages and benefits it paid. In addition, Dean Hunt, the XL

Electric Vice President, told its electricians that they would no

longer be receiving benefits under a union contract.

I n August 2000, the Union submitted the unresolved issu e s

between itself and XL Electric to the Council on Industrial

Relations (“CIR”), the interest arbitra tion panel for the

electrical contracting industry, pursuant to the interest

arbitration clause. On August 15, 2000, the CIR found that

although XL Electric followed the proper procedure for terminating

the Letter, it did not properly terminate the Agreement.

Accordingly, the CIR held that XL Elect ric was bound by a new

Inside Agreement, which was effective from June 1, 2000 to May 31,

2003. Although XL Electric challenged the finding, the CIR issued4

this as its final decision.

When XL Electric refused to be bound by the CIR decision, the

Union filed the present suit on June 25, 2001, to enforce the terms

of the interest arbitration award under section 301 of the NLRA.

After a bench trial, the district court denied the Union’s request

for enforcement on November 26, 2002. The district court concluded

that XL Electric was not bound by the interest arbitration clause

after the Letter expired on May 31, 2000. The court therefore held

that the panel award was not enforceable. The Union timely

appealed.

ANALYSIS

Standard of Review

In reviewing a district co urt’s decision on whether the

parties agreed to submit their dispute to arbitration, we accept

findings of fact that are not "clearly erroneous" but review

questions of law de novo

. First Options v. Kaplan , 514 U.S. 938

,

947-48 (1995).

The question of arbitrability is a question for the court.

The threshold, and in this case determinative, question is

whether this dispute was subject to a valid agreement to arbitrate.

As the district court noted, the question of arbitrability is a

question for the court. S ee Litton Fin. Printing Div. v. NLRB

, 501

U.S. 190, 208-09 (1991) ( “Whether an employer is contractually5

required to arbitrate a dispute is a matter to be determined by the

court, and a party cannot be forced to ‘arbitrate the arbitrability

question.’”) (citing AT&T Technologies, Inc. v. Communications

Workers

, 475 U.S. 643, 651 (1986))

. This is true even if answering

the arbitrability question requires a construction of the contract.

Id.

The Union conversely argues that we are instead faced with a

question of timeliness, which is a procedural question properly

decided by the arbitrator. The Union cites a number of cases for

the proposition that procedural issues should be decided by the

arbitrator. S ee, e.g.

, John Wiley and Sons, Inc. v. Livingston

,

376 U.S. 543 (1964); Oil, Chemical & Atomic Workers Int’l Union,

Local 4-447 v. Chevron Chem. Co. , 815 F.2d 338 (5th Cir. 1987);

Local No. 406, Int’l Union of Oper. Eng’rs v. Austin Co.

, 784 F.2d

1262, 1264-65 (5th Cir. 1986); Alabama Power Co. v. Local Union No.

391, IBEW

, 612 F.2d 960 (5th Cir. 1980) ; General Drivers,

Warehousemen & Helpers, Local Union 89 v. Moog Louisville

Ware house, 852 F.2d 871 (6th Cir. 1988). T he Union attempts to

classify the present situation as presenting a tim eliness issue

that is thus procedural and should have been determined by the

arbitrator.

But the cases relied on by the Union are distinguishable

because those cases all concern grievances submitted to arbitration6

pursuant to a valid collective bargaining agreement. In those

cases, the courts determined that there was a valid agreement to

arbitrate t he grievance at issue. The “procedural question”

generally within the province of the arbit rator refers to the

question of whether the union properly followed the requirements

for invoking arbitration under the valid collective b argaining

agreement. Here, by contrast, we are faced with the threshold

question of whether there is a valid agreement in place under which

the Union’s grievance can be arbitrated. As noted above, this

arbitrability question is a question for the court. The fact that

the inquiry involves timing does not automatically classify it as

a procedural question within the province of the arbitrator. Thus,

the district court did not err in undertaking an analysis of

whether the dispute between XL Electric and the Union was subject

to the Agreement.

The arbitration clause only provided for issues to be submitted to

arbitration while the Agreement was effective.

Again, section 1.02(d) of the Agreement provided: “Unresolved

issues in negotiations ... may be submitted ... by the parties to

this Agreement to the Council for adjudication prior to the

anniversary date of the Agreement .” Because the arbitrator found

that the Agreement was not termi nated, the arbitrator concluded

that this agreement to arbitrate was in effect when the Union

submitted the unresolved issues to arbitration in August of 2000.7

Conversely

, because the district court determined that the

Agreement was terminated no later than May 31, 2000, the district

c ourt concluded that under the plain terms of the arbitrat ion

provision the parties could not submit claims to arbitration after

that date.

The Union contends that the district court’s construction of

this provision was incorrect. The Union argues that because the

arbitration pro vision was permissive, not mandatory, it was not

required to submit claims to arbitration prior to the anniversary

date of the Agreement. This argument is not persuasive. The

discretionary nature of the provision simply conveys that the

parties are not required to arbitrate if they do not choose to do

so. It does not mean that the time limitation within the provision

is irrelevant. Accordingly, the question of whether there is an

agreement to arbitr ate depends on whether the Agreement was

terminated.

The Union has made no argument challenging the d istrict court’s

conclusion that the Agreement expired before the Union submitted

the unresolved negotiation issues to arbitration.

The district court held that both the Letter and the Agreement

were terminated no later than May 31, 2000. The arbitrator found

that although XL Electric properly terminated the Letter, it did

n ot properly terminate the Agreement. T he arbitrator did not

explain the basis for thi s determination beyond making the8

conclusory statement that the requirements of Sections 1.02(a) and

1.02(f) had not been fulfilled. And on appeal the Union has only

argued that the que stion at hand was a procedural question to be

answered by the arbitrator. The Union has not made any argument

challenging the merits of the district court’s ultimate conclusion

that the Agreement was properly terminated. The Union thus waived

any argument along those lines, Yohey v. Collins

, 985 F.2d 222,

224-25 (5th Cir. 1993)

, and the district co urt’s conclusion that

the Agreement had expired stands. Because the Agreement and by

extension the arbitration provision exp ired before the Union

submitted the renegotiation issues to arbitration, the dispute was

not arbitrable. We therefore AFFIRM the judgment of the district

court refusing to enforce the arbitration award.

CONCLUSION

Because the question of arbitrability was properly a question

for the district court and the district court’s conclusion that the

Agreement, including the arbitration provision, terminated has not

been challenged, we AFFIRM the district court’s judgment refusing

to enforce the arbitration award.