PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, LOCAL 26,

Plaintiff-Appellant,

No. 95-1683

v.

ADVIN ELECTRIC, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Peter J. Messitte, District Judge.

(CA-94-281-PJM)

Argued: April 4, 1996

Decided: October 16, 1996

Before NIEMEYER, HAMILTON, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the opinion,

in which Judge Hamilton and Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: R. Richard Hopp, O'DONOGHUE & O'DONOGHUE,

Washington, D.C., for Appellant. Jana Howard Carey, VENABLE,

BAETJER & HOWARD, L.L.P., Baltimore, Maryland, for Appellee.

ON BRIEF: Brian A. Powers, Sally M. Tedrow, O'DONOGHUE &

O'DONOGHUE, Washington, D.C., for Appellant. Valerie Floyd

Portner, VENABLE, BAETJER & HOWARD, L.L.P., Baltimore,

Maryland, for Appellee.
OPINION

NIEMEYER, Circuit Judge:

The International Brotherhood of Electrical Workers, Local 26,

filed a grievance against AdVin Electric, Inc. under the arbitration

clause of a 1993 collective bargaining agreement, contending that

AdVin failed to comply with that agreement. The agreement had been

negotiated between Local 26 and the National Electrical Contractors

Association (the "Association"), of which AdVin had been a member.

AdVin responded, claiming that it had withdrawn the Association's

authority to negotiate on AdVin's behalf for the 1993 collective bargaining agreement. When AdVin refused to attend the arbitration,

Local 26 obtained an arbitration award against AdVin and filed this

action, under § 301 of the Labor-Management Relations Act, 29

U.S.C. § 185, to enforce the award. On cross motions for summary

judgment, the district court granted AdVin's motion, concluding that

AdVin was not a party to the 1993 collective bargaining agreement

because AdVin had effectively withdrawn the Association's authority

to negotiate on AdVin's behalf. We agree and therefore affirm.

I

In 1988, AdVin, an electrical contractor, executed a"letter of

assent" authorizing the Association to act as AdVin's collective bargaining representative. The letter provided that the authorization was

to remain in effect "until terminated" by AdVin's giving written

notice both to the Association and to Local 26 at least 150 days "prior

to the then current anniversary date of the applicable approved labor

agreement." Acting on behalf of AdVin and other electrical contractors who were members of the Association, the Association entered

into a three-year collective bargaining agreement with Local 26,

effective June 1, 1990, (the "1990 CBA"). The 1990 CBA provided

that unless either party gave written notice 90 days before the "anniversary date" of May 31, 1993, the agreement would continue in force

on an annual basis.

In July 1991, a little more than a year into the agreement, AdVin

determined that for economic reasons it could not afford to remain in

a relationship with the union. On July 11, 1991, it wrote a letter to

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Local 26, with a copy to the Association, stating,"This will serve as

official notice that AdVin Electric, Inc. will terminate its employer

union membership status effective July 11, 1991." Both the Association and Local 26 wrote AdVin back, advising that it was bound by

the collective bargaining agreement at least through May 31, 1993,

the last day of the term of the 1990 CBA entered into by the Association on AdVin's behalf. In its letter to AdVin, the Association also

alluded to AdVin's right to withdraw its authorization to the Association by giving notice at least 150 days prior to the anniversary date

of the collective bargaining agreement, i.e. May 31, 1993. And in its

letter, Local 26 referred AdVin to the collective bargaining agreement's termination provision which required notice of termination 90

days before May 31, 1993.

Accordingly, AdVin thereafter sought to end its union ties effective

May 31, 1993. On November 4, 1992, it sent the Association a letter,

with a copy to Local 26, stating:

In accordance with the Letter of Assent between AdVin

Electric, Inc. and [the Association], this letter is AdVin's

formal notification to terminate AdVin's collective bargaining agreement with Local 26 I.B.E.W. upon its expiration on

May 31, 1993.

And on the same day AdVin sent a letter to Local 26, with a copy to

the Association, stating, "This letter is the formal notification of

AdVin Electric, Inc. in accordance with AdVin's collective bargaining agreement with local 26 I.B.E.W., to terminate the agreement

upon its expiration on May 31, 1993." Both letters were sent by certified mail, return receipt requested, at least 150 days before May 31,

1993.

As the end of the 1990 CBA term approached, Local 26 wrote

AdVin a letter seeking to open one-on-one negotiations with AdVin.

In the letter, sent April 6, 1993, the business manager of Local 26

wrote:

I previously sent you a letter dated February 25, 1993,

regarding opening contract negotiations with your company

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since AdVin Electric, Inc. no longer wishes to be represented by [the Association].

 As you know, [the collective bargaining agreement]

expires May 31, 1993. With this thought in mind and valuable time slipping away, I request that the following dates

be set aside so that we may begin negotiations immediately

. . . .

 It is in the best interest of all parties that we do not delay

these important contract negotiations any longer since the

arbitration clause in our agreement states that we must file

for CIR by May 1, 1993, if necessary.

While AdVin did not refuse to meet with Local 26, it admonished the

union by letter dated May 26, 1993, that AdVin had"previously

timely informed you of our intent to terminate the current [collective

bargaining agreement] upon [its] expiration date, and our withdrawal

of any authority on the part of [the Association] to negotiate on our

behalf for any new agreements." AdVin nevertheless offered to meet

with union representatives so long as such meetings would not be

construed as obligating AdVin to have "any continuing relationship

with the Union after the expiration of the current[collective bargaining agreement]." The parties met a few times without reaching any

agreement.

Local 26 and the Association negotiated a new three-year collective bargaining agreement effective June 1, 1993 (the "1993 CBA").

AdVin, however, did not consider itself a party to the 1993 CBA

because it had withdrawn its assent to the Association and had notified Local 26 of its desire to terminate its union relationship upon

expiration of the 1990 CBA bargaining agreement.

Several months into the 1993 CBA, when it became clear that

AdVin was not operating under it, Local 26 filed a grievance under

the 1993 CBA. The Local contended that AdVin's termination of its

negotiating assent and its union relationship were not effective and,

therefore, that AdVin was bound by the 1993 CBA negotiated by the

Association. Local 26 explained its grievance as follows:

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[AdVin] failed to give timely and unambiguous notice to the

Local and to [the Association] that it was withdrawing from

the Letters of Assent. Having failed to give proper, timely

notice to both the Local and [the Association], AdVin is

bound to the current Agreements for their term.

Insisting that it was not a party to the 1993 CBA, AdVin refused to

participate in the arbitration process. Local 26 proceeded to obtain an

arbitration award against AdVin and, thereafter, brought this action to

enforce the award under § 301 of the Labor Management Relations

Act, 29 U.S.C. § 185.

On cross motions for summary judgment, the district court concluded that AdVin had clearly and unequivocally given notice to

Local 26 and to the Association that it did not wish to participate in

a union relationship. Referring to Local 26's contention that AdVin's

notice was ambiguous, the court stated,

Any distinction between withdrawing from the contract . . .

as opposed to withdrawing from the collective bargaining

group is a nice, but frankly, totally unpersuasive argument.

It is clear that the defendant wanted out from this relationship, period.

* * *

And if there were any doubt, it's clear that Local 26 itself

acted as if they knew that AdVin was trying to opt out both

of the agreement and membership in the multi-employer

bargaining unit. That is absolutely clear.

The court therefore concluded that AdVin was not bound by the 1993

CBA and, to the extent that that agreement had a mandatory arbitration clause, it simply did not apply to AdVin. Accordingly, the court

entered summary judgment in favor of AdVin.

On appeal, Local 26 argues that the district court erred in considering the "merits" of AdVin's claims. Rather, Local 26 argues, the district court should have determined the "straightforward question of

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whether the dispute was encompassed by the [1993] Agreement's

arbitration clause." Because the arbitration clause "clearly encompassed the parties' dispute over the alleged termination of the Letter

of Assent," Local 26 asserts that the district court should have

enforced the arbitration award against AdVin.

II

It is firmly set law that the obligation to arbitrate is a creature of

contract, and a party cannot be required to submit to arbitration unless

he has agreed to do so. See United Steel Workers v. Warrior & Gulf

Navigation Co., 363 U.S. 574, 582 (1960); American Recovery Corp.

v. Computerized Thermal Imaging, Inc., 1996 WL 495537 at *3 (4th

Cir. Sept. 3, 1996); Local 637, IBEW v. Davis H. Elliot Co., 13 F.3d

129, 132 (4th Cir. 1993). Accordingly, the court decides as issues of

contract law the threshold questions of whether a party is contractually bound to arbitrate and whether, if so bound, the provision's scope

makes the issue in dispute arbitrable. See John Wiley & Sons, Inc. v.

Livingston, 376 U.S. 543, 546-47 (1964); Elliot, 13 F.3d at 132;

Virginia Carolina Tools, Inc. v. International Tool Supply, Inc., 984

F.2d 113, 117 (4th Cir.), cert. denied , 508 U.S. 960 (1993).

While Local 26 does not dispute these fundamental legal principles, it argues that because AdVin's termination of its relationship

with the Association was ineffective, the Association acted as

AdVin's collective bargaining representative in entering into the 1993

CBA. And, it argues further, if the question of whether AdVin's withdrawal of assent is disputed, that subject falls within the scope of the

1993 CBA's arbitration clause. According to Local 26, the arbitrator

and not the court therefore determines whether AdVin is bound by the

1993 agreement.

To reach its conclusions, Local 26 has reversed the necessary order

of analysis. Before Local 26 can claim the benefit of the 1993 CBA's

arbitration clause, it must establish that AdVin was a party to the collective bargaining agreement. While there is no dispute that AdVin

and Local 26 were both parties to the 1990 CBA, Local 26 concedes

that AdVin properly terminated that agreement. If that issue were disputed, Local 26 might have been able to argue that the 1990 CBA's

arbitration clause covered the question of whether AdVin properly

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invoked the 1990 CBA's termination provision. But no provision of

the 1990 CBA survived May 31, 1993, and that agreement cannot

now form the basis for this litigation. Indeed, Local 26 does not urge

that it does. Rather, Local 26 filed the arbitration claim underlying

this case under the 1993 CBA, contending that any dispute about its

applicability was an issue for arbitration. Because Local 26 has

invoked the arbitration clause of the 1993 CBA, we must decide

whether AdVin was bound by that agreement's arbitration provision.

As already noted, that question is one for the court to decide. Elliot,

13 F.3d at 132; Action Electric, Inc. v. Local 292, IBEW, 856 F.2d

1062, 1064 & n.1 (8th Cir. 1988).

The district court concluded as a matter of law that AdVin gave

notice that it wanted to withdraw from its relationship with the Union

and that, by giving notice, it effectively terminated both its representation agreement with the Association and the collective bargaining

agreement with Local 26. Reviewing the district court's conclusion de

novo, we agree that the record supports the court's conclusion.

The undisputed facts reveal that AdVin notified both the Association and Local 26 on July 11, 1991, that it wanted"to terminate its

employer union membership status" effective immediately. When

AdVin was informed that it could not do so before May 31, 1993, it

sent letters both to the Association and Local 26 on November 4,

1992. In its letter to the Association, with a copy to Local 26, AdVin

stated, "in accordance with the Letter of Assent . . . this letter is

AdVin's formal notification to terminate . . . the collective bargaining

agreement with Local 26, I.B.E.W. upon its expiration." (Emphasis

added). This language is undoubtedly effective to terminate the Association's authority to bargain on AdVin's behalf. See NLRB v. Hayden

Electric, Inc., 693 F.2d 1358, 1364 (11th Cir. 1982) (finding termination of letter of assent effective where an employer wrote "to advise,

150 days in advance, of [the company's] intention to exercise [its]

option to cancel [its] contract with [a] local union"). Moreover, on the

same day, AdVin wrote a separate letter to Local 26, with a copy to

the Association, in which it stated it was terminating the 1990 CBA

upon its expiration on May 31, 1993. Thus, in November 1992, Local

26 received two letters from AdVin, one addressed to the Association

referencing its letter of assent and the other to the Union referencing

the termination clause of the 1990 CBA.

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Local 26 argues that the exchange of communications between

AdVin, the Association, and Local 26 was "equivocal and ambiguous" and "squarely in dispute," thus precluding entry of summary

judgment in AdVin's favor. The argument rests on AdVin's imprecise

invocations of the two agreements to support its claim of ambiguity.

While AdVin's references to the agreements were not specific, there

can be no doubt that AdVin intended to take all steps necessary to end

its union relationship, referring both to its letter of assent given to the

Association and the 1990 CBA with the Union. According to the standards set down by the National Labor Relations Board in Retail Associates, Inc., 120 NLRB 388, 395 (1958), notice need only be

"adequate." See also Action Electric, 856 F.2d at 1064-65; Hayden

Electric, 693 F.2d at 1363-64. Furthermore, there should be no "barriers to withdrawal prior to bargaining." Charles D. Bonanno Linen

Serv., Inc. v. NLRB, 454 U.S. 404, 412 (1982).

Were we left with any doubt that AdVin's notice to the Association

and Local 26 was adequate as a matter of law, that doubt would be

removed by Local 26's own interpretation of AdVin's letters. In April

1993, Local 26 wrote to AdVin inviting AdVin to engage in one-onone negotiations for a new collective bargaining agreement, bypassing the traditional negotiations between Local 26 and the Association,

"since AdVin Electric, Inc., no longer wishes to be represented by

[the Association]." Thereafter the parties met more than once for that

purpose. Local 26's attempt to negotiate directly with AdVin rather

than through the Association does more than betray its knowledge of

AdVin's withdrawal from the Association. It operates as an acquiescence in and a consent to AdVin's withdrawal of authority. See

Hayden Electric, 693 F.2d at 1365. "Where a union expresses its willingness to meet and discuss terms peculiar to an individual employer's operation, and listen to counter proposals . . . such conduct

evidences acquiescence in an otherwise untimely withdrawal." Id. at

1366 (quoting I.C. Refrigeration Service, 200 NLRB 687, 690

(1972)).

Because AdVin was not a party to the 1993 CBA, it was not bound

by that agreement's arbitration clause. Accordingly, we affirm the

judgment of the district court denying enforcement of the arbitration

award.

AFFIRMED

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