FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OPERATING ENGINEERS LOCAL UNION 

No. 04-16917 NO. 3,

Plaintiff-Appellee, D.C. No.  CV-03-00395-

v. ECR/RAM

NEWMONT MINING CORP., OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Nevada

Edward C. Reed, District Judge, Presiding

Argued and Submitted

November 14, 2006—San Francisco, California

Filed February 5, 2007

Before: William C. Canby, Jr., Emmett Ripley Cox,* and

Richard A. Paez, Circuit Judges.

Opinion by Judge Canby

*The Honorable Emmett Ripley Cox, Senior United States Circuit

Judge for the Eleventh Circuit, sitting by designation. 

1323
COUNSEL

Paul J. McCue, Raymond M. Deeny, Sherman & Howard,

Denver, Colorado, for the defendant-appellant. 

David A. Rosenfeld, Caren P. Sencer, Weinberg, Roger &

Rosenfeld, Alameda, California, for the plaintiff-appellee. 

OPERATING ENGINEERS v. NEWMONT MINING CORP. 1325
OPINION

CANBY, Circuit Judge: 

Newmont Mining Corporation appeals the district court’s

grant of summary judgment in favor of Operating Engineers

Local Union No. 3 in the Union’s action to compel arbitration. Newmont and the Union were parties to a collective bargaining agreement. Newmont terminated the employment of

Samuel Taylor, an employee represented by the Union, for

allegedly falsifying a tool request form. Newmont declined to

arbitrate the termination, on the ground that the parties’ collective bargaining agreement expired prior to Taylor’s discharge. The district court found that the parties were bound by

the expired agreement’s arbitration provision because the

“key or critical facts” involved in the dispute took place prior

to the agreement’s expiration. 

We affirm, but by a somewhat different analysis than that

adopted by the district court. We conclude that the parties

contracted to arbitrate the significant question of whether

Taylor falsified the tool request form, an incident that, if it

occurred, took place before the collective bargaining agreement expired. We therefore hold that the parties’ dispute

arises under the expired agreement and that the matter must

be submitted to arbitration. 

I. BACKGROUND

Newmont and the Union entered into a collective bargaining agreement for the term October 1, 1999 through September 30, 2002 (the “CBA”). The CBA set forth a three-step

procedure for resolving the parties’ grievances. Any grievance

not resolved through discussions between the parties (step

one) or in a meeting before a Board of Adjustment (step two)

could be submitted to binding arbitration. In the case of

employee discharge or discipline submitted to arbitration, the

CBA provided that: 

1326 OPERATING ENGINEERS v. NEWMONT MINING CORP.
[T]he Arbitrator shall determine the question of fact

as to the occurrence or non-occurrence of the circumstances upon which the discipline was based. If

it is determined that such circumstances were as

found by the Employer, the Employer’s decision as

to the kind and degree of discipline shall not be disturbed unless there is an express finding that the kind

and degree of discipline was unreasonable. 

Newmont employed Samuel Taylor as a gas mechanic. On

September 25, 2002, Taylor allegedly altered a company form

so that it requested tools to which he was not entitled. Five

days later, the CBA expired. On October 14, 2002, Newmont

terminated Taylor for falsifying the tool replacement form. 

Pursuant to the CBA, the Union filed a grievance over Taylor’s termination. After unsuccessful attempts to settle the

grievance in accordance with the first two steps of the procedure outlined in the CBA, the Union requested arbitration.

Newmont refused the request, asserting that the CBA’s arbitration clause was not binding because the CBA expired on

September 30, 2002, before Taylor’s termination but after the

incident giving rise to his termination. 

The Union filed a Motion to Compel Arbitration in United

States District Court pursuant to 29 U.S.C. § 185. Newmont

filed a Motion for Summary Judgment. The district court

treated the motions as cross-motions for summary judgment.

The court found it undisputed that the following occurred

before expiration: (1) Taylor’s alleged falsification of the

form; (2) Newmont’s initial questioning of Taylor’s conduct;

(3) Newmont’s preliminary discovery of Taylor’s alleged

conduct; and (4) an investigation regarding the tool request.

It found that the following occurred after expiration of the

CBA: (1) the dispute over the tool request; (2) additional

investigation of the falsification claim; (3) Taylor’s suspension and discharge; and (4) the filing of the Union’s grievance. The court concluded that the key or critical facts and

OPERATING ENGINEERS v. NEWMONT MINING CORP. 1327
occurrences took place before the expiration of the CBA, and

that the dispute therefore arose under the contract and was

subject to its arbitration clause. The court granted the Union’s

Motion to Compel Arbitration and denied Newmont’s Motion

for Summary Judgment. This appeal followed.

II. DISCUSSION

We have jurisdiction under 28 U.S.C. § 1291. We review

de novo the district court’s grant of summary judgment.

Jacobs v. CBS Broadcasting, Inc., 291 F.3d 1173, 1176 (9th

Cir. 2002). We also review de novo the district court’s order

compelling arbitration. Thinket Ink Info. Res., Inc. v. Sun

Microsystems, Inc., 368 F.3d 1053, 1060 (9th Cir. 2004). 

A. Did the dispute over Taylor’s termination “arise

under the contract”?

[1] Whether Newmont is required to arbitrate Taylor’s termination is a matter of contract interpretation. See AT&T

Tech., Inc. v. Communications Workers of Am., 475 U.S. 643,

648 (1986). Although Newmont cannot be required to arbitrate a dispute if it did not so agree, id., the expiration of the

parties’ collective bargaining agreement did not automatically

extinguish its duty to arbitrate grievances arising under the

agreement. See Nolde Bros., Inc. v. Local No. 358, Bakery &

Confectionary Workers Union, 430 U.S. 243, 251-52 (1977).

The dispute between Newmont and the Union “arise[s] under

the contract,” and therefore subjects the parties to arbitration,

if (1) “it involves facts and occurrences that arose before expiration,” (2) “an action taken after expiration 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 remainder of the

agreement.” See Litton Fin. Printing Div., Inc. v. NLRB, 501

U.S. 190, 206 (1991). 

[2] The central issue before us is whether the dispute

between Newmont and the Union “involves facts and occur1328 OPERATING ENGINEERS v. NEWMONT MINING CORP.
rences that arose before expiration” of the CBA, within the

meaning of Litton. As the district court recognized, the determination of this question is easy enough when all of the

events underlying the dispute occur before expiration of the

CBA or when they all occur after, as in Nolde Brothers. The

issue becomes more clouded when, as in this case, some of

the events related to the grievance occurred before expiration

of the CBA and some after. Addressing such a case, the Sixth

Circuit held that a dispute arises under the contract, and is

therefore arbitrable, “when a majority of the material facts

and occurrences arose before the expiration” of the CBA.

South Cent. Power Co. v. Int’l Bhd. of Elec. Workers, Local

Union 2359, 186 F.3d 733, 740 (6th Cir. 1999). 

[3] The district court here adopted the general approach of

the Sixth Circuit but recognized, correctly in our view, the

disadvantages of a mere counting of facts and occurrences,

even when they are limited to material facts. The district court

therefore held that “even if a majority of the material facts

and circumstances occurred after the contract was terminated,

certainly the key or critical facts and circumstances in this

case took place before the contract was terminated.” A focus

on “key” or “critical” facts is certainly preferable to a mere

counting of the number of facts or occurrences that took place

before or after expiration of the CBA. We conclude, however,

that the determinative issue is not necessarily the relative

importance of the facts that took place before the CBA’s expiration, but whether those facts and the dispute over them is

one that the parties agreed to arbitrate. Although the preexpiration facts or occurrences to be arbitrated must be of

some significance in the dispute, the dispute must be arbitrated if the parties agreed to arbitrate those facts or occurrences. 

[4] Here the answer to that question is clear. The parties

agreed in the CBA that, “[i]n the case of Employee . . . discharge, the Arbitrator shall determine the question of fact as

to the occurrence or non-occurrence of the circumstances”

OPERATING ENGINEERS v. NEWMONT MINING CORP. 1329
upon which an employee’s termination was based. They also

agreed that, within strict limits, the arbitrator could consider

whether the termination was unreasonable. Applying these

terms of the parties’ agreement, Taylor’s falsification of the

tool request form, which allegedly occurred before expiration

of the CBA, and its consequences are questions that must be

arbitrated. There is no doubt that the alleged falsification is of

some significance in the termination dispute; indeed, it is the

primary factual question to be resolved. We have no difficulty

concluding, therefore, that the parties’ dispute arose under the

expired CBA and is subject to arbitration. The arbitration

must proceed even if it may take account of, and have some

impact on, events that occurred after expiration of the CBA.

We accordingly reject Newmont’s contention that Taylor’s

post-expiration termination, and not the conduct leading up to

it, was the “fact or occurrence” central to the parties’ dispute,

and that the dispute consequently is not subject to the CBA.

Even if the termination was a significant part of the dispute,

so was the alleged misconduct in falsifying the tool request

form. The parties clearly agreed in the CBA to arbitrate the

latter issue, and the misconduct occurred, if at all, prior to the

expiration of the CBA. To deny arbitration would deprive the

Union of the benefit of its bargain. That we decline to do.1

B. Attorneys’ fees on appeal

[5] Finally, we deny the Union’s request for an award of

attorneys’ fees on appeal. There is no evidence that Newmont

acted “in bad faith, vexatiously, wantonly, or for oppressive

reasons” in filing this appeal. See Alyeska Pipeline Serv. Co.

1

It follows from the rationale of our decision that it is immaterial

whether Newmont discovered the alleged misconduct before or after the

expiration of the CBA. We therefore need not address Newmont’s contention that there was a triable dispute of fact with regard to that issue. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes

over facts that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment.”). 

1330 OPERATING ENGINEERS v. NEWMONT MINING CORP.
v. Wilderness Soc’y, 421 U.S. 240, 258-59 (1975) (internal

quotations omitted). 

III. CONCLUSION

For the reasons set forth above, the judgment of the district

court is AFFIRMED. 

OPERATING ENGINEERS v. NEWMONT MINING CORP. 1331