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- Subject: 90-285 -- DISSENT, LITTON FINANCIAL PRINTING DIV. v. NLRB
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- SUPREME COURT OF THE UNITED STATES
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- No. 90-285
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- LITTON FINANCIAL PRINTING DIVISION, A DIVISION OF LITTON BUSINESS SYSTEMS,
- INC., PETITIONER v. NATIONAL LABOR RELATIONS BOARD et al.
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- on writ of certiorari to the united states court of appeals for the ninth
- circuit
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- [June 13, 1991]
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- Justice Stevens, with whom Justice Blackmun and Justice Scalia join,
- dissenting.
- As the Court today recognizes, an employer's obligation to arbitrate
- postcontract termination grievances may arise by operation of labor law or
- by operation of the expired collective-bargaining agreement. I think the
- Court is correct in deferring to the National Labor Relations Board's line
- of cases and holding that a statutory duty to arbitrate grievances does not
- automatically continue after contract termination by operation of labor
- law, see ante, at 6-11. I also agree with the Court's recognition that
- notwithstanding the absence of an employer's statutory duty to arbitrate
- posttermi nation grievances, a contractual duty to arbitrate such
- grievances may nevertheless exist, see ante, at 11-16. I part company with
- the Court, however, at Part IV-C of its opinion, where it applies its
- analysis to the case at hand. Because I am persuaded that the issue
- whether the posttermi nation grievances in this case "arise under" the
- expired agreement is ultimately an issue of contract interpretation, I
- think that the Court errs in reaching the merits of this issue rather than
- submitting it to an arbitrator in the first instance, pursuant to the broad
- agreement of the parties to submit for arbitration any dispute regarding
- contract construction.
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- In Nolde Bros., Inc. v. Bakery Workers, 430 U. S. 243 (1977), a union
- brought suit against an employer to compel arbitration of the employer's
- refusal to give severance pay under an expired collective-bargaining
- agreement to employees displaced by a plant closing. The expired agreement
- provided that employees who had worked for the employer for at least three
- years were entitled to severance pay if permanently displaced from their
- jobs. The union claimed that the right to such severance pay had "accrued"
- or "vested" during the life of the contract. The employer disavowed any
- obligation to arbitrate, arguing that the contract containing its
- commitment had terminated and the event giving rise to the dispute -- the
- displacement of employees during the plant closing -- occurred after the
- contract had expired.
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- We ruled in favor of the union in Nolde Bros. Integral to our decision
- was the conclusion that whether or not the right to severance pay had
- accrued during the contract, and thus whether or not the employer's refusal
- to offer severance pay was an arbitrable grievance after the contract had
- expired, was itself a question of contract interpretation. "There can be
- no doubt that a dispute over the meaning of the severancepay clause during
- the life of the agreement would have been subject to the mandatory
- grievance-arbitration procedures of the contract. Indeed, since the
- parties contracted to submit `all grievances' to arbitration, our
- determination that the Union was `making a claim which on its face is
- governed by the contract' would end the matter had the contract not been
- terminated prior to the closing of the plant." Id., at 249-250 (citation
- omitted).
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- Like the expired agreement between the union and Nolde Bros. to
- arbitrate "all grievances," the terminated agreement between Litton and the
- Union in this case broadly mandates arbitration of " `[d]ifferences that
- may arise between the parties hereto regarding this Agreement and any
- alleged violations of the Agreement, [and] the construction to be placed on
- any clause or clauses of the Agreement.' " Ante, at 2. Because the Union
- here alleged that the seniority clause of the expired agreement was on its
- face violated by the post termination layoffs, determining whether the
- union's grievances arise under the contract requires construction of the
- seniority provision of the contract and determination of whether this
- provision applies to posttermination events. As the Court itself notes:
- "[T]he Board's decision not to order arbitration of the layoff grievances
- rests upon its interpretation of the Agreement." Ante, at 10 (emphasis
- added).
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- In my opinion, the question whether the seniority clause in fact
- continues to provide employees with any rights after the contract's
- expiration date is a separate issue concerning the merits of the dispute,
- not its arbitrability. Whatever the merits of the Union's contention that
- the seniority-rights provision survives the contract's termination date, I
- think that the merits should be resolved by the arbitrator, pursuant to the
- parties' broad contractual commitment to arbitrate all disputes concerning
- construction of the agreement, rather than by this Court.
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- I respectfully dissent.
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