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Subject: 90-285 -- OPINION, LITTON FINANCIAL PRINTING DIV. v. NLRB




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 90-285



LITTON FINANCIAL PRINTING DIVISION, A DIVISION OF LITTON BUSINESS SYSTEMS,
INC., PETITIONER v. NATIONAL LABOR RELATIONS BOARD et al.

on writ of certiorari to the united states court of appeals for the ninth
circuit

[June 13, 1991]



    Justice Kennedy delivered the opinion of the Court.
    This case requires us to determine whether a dispute over layoffs which
occurred well after expiration of a collectivebargaining agreement must be
said to arise under the agreement despite its expiration.  The question
arises in the context of charges brought by the National Labor Relations
Board (Board) alleging an unfair labor practice in violation of 15 8(a)(1)
and (5) of the National Labor Relations Act (NLRA), 49 Stat. 449, as
amended, 29 U. S. C. 15 158(a)(1) and (5).  We interpret our earlier
decision in Nolde Bros., Inc. v. Bakery Workers.  430 U. S. 243 (1977).

I
    Petitioner Litton operated a check printing plant in Santa Clara,
California.  The plant utilized both cold-type and hottype printing
processes.  Printing Specialties & Paper Products Union No. 777, Affiliated
With District Council No. 1 (Union), represented the production employees
at the plant.  The Union and Litton entered into a collective-bargaining
agreement which, with extensions, remained in effect until October 3, 1979.
Section 19 of the Agreement is a broad arbitration provision:

"Differences that may arise between the parties hereto regarding this
Agreement and any alleged violations of the Agreement, the construction to
be placed on any clause or clauses of the Agreement shall be determined by
arbitration in the manner hereinafter set forth."  App. 34.


Section 21 of the Agreement sets forth a two-step grievance procedure, at
the conclusion of which, if a grievance cannot be resolved, the matter may
be submitted for binding arbitration.  Id., at 35.
    Soon before the Agreement was to expire, an employee sought
decertification of the Union.  The Board conducted an election on August
17, 1979, in which the Union prevailed by a vote of 28 to 27.  On July 2,
1980, after much postelection legal maneuvering, the Board issued a
decision to certify the Union.  No contract negotiations occurred during
this period of uncertainty over the Union's status.
    Litton decided to test the Board's certification decision by refusing
to bargain with the Union.  The Board rejected Litton's position and found
its refusal to bargain an unfair labor practice.  Litton Financial Printing
Division, 256 N. L. R. B. 516 (1981).  Meanwhile, Litton had decided to
eliminate its cold-type operation at the plant, and in late August and
early September of 1980, laid off 10 of the 42 persons working in the plant
at that time.  The laid off employees worked either primarily or
exclusively with the cold-type operation, and included six of the eleven
most senior employees in the plant.  The layoffs occurred without any
notice to the Union.
    The Union filed identical grievances on behalf of each laid off
employee, claiming a violation of the Agreement, which had provided that
"in case of layoffs, lengths of continuous service will be the determining
factor if other things such as aptitude and ability are equal."  App. 30.
Litton refused to submit to the grievance and arbitration procedure or to
negotiate over the decision to lay off the employees, and took a position
later interpreted by the Board as a refusal to arbitrate under any and all
circumstances.  It offered instead to negotiate concerning the effects of
the layoffs.
    On November 24, 1980, the General Counsel for the Board issued a
complaint alleging that Litton's refusal to process the grievances amounted
to an unfair labor practice within the meaning of 15 8(a)(1) and (5) of the
NLRA, 29 U. S. C. 15 158(a)(1) and (5).  App. 15.  On September 4, 1981, an
Administrative Law Judge found that Litton had violated the NLRA by failing
to process the grievances.  App. 114-115.  Relying upon the Board's
decision in American Sink Top & Cabinet Co., 242 N. L. R. B. 408 (1979),
the Administrative Law Judge went on to state that if the grievances
remained unresolved at the conclusion of the grievance process, Litton
could not refuse to submit them to arbitration.  App. 115118.  The
Administrative Law Judge held also that Litton violated 15 8(a)(1) and (5)
when it bypassed the Union and paid severance wages directly to the 10 laid
off employees, and Litton did not contest that determination in further
proceedings.
    Over six years later, the Board affirmed in part and reversed in part
the decision of the Administrative Law Judge.  286 N. L. R. B. 817 (1987).
The Board found that Litton had a duty to bargain over the layoffs, and
violated MDRV 8(a) by failure to do so.  Based upon well-recognized Board
precedent that the unilateral abandonment of a contractual grievance
procedure upon expiration of the contract violates 15 8(a)(1) and (5), the
Board held that Litton had improperly refused to process the layoff
grievances.  See Bethelem Steel Co., 136 N. L. R. B. 1500, 1503 (1962),
enforced in pertinent part, 320 F. 2d 615 (CA3 1963).  The Board proceeded
to apply its recent decision in Indiana & Michigan Electric Co., 284 N. L.
R. B. 53 (1987), which contains the Board's current understanding of the
principles of postexpiration arbitrability and of our opinion in Nolde
Bros., Inc. v. Bakery Workers, 430 U. S. 243 (1977).  The Board held that
Litton's "wholesale repudiation" of its obligation to arbitrate any
contractual grievance after the expiration of the Agreement also violated
15 8(a)(1) and (5), as the Agreement's broad arbitration clause lacked

"language sufficient to overcome the presumption that the obligation to
arbitrate imposed by the contract extended to disputes arising under the
contract and oc curring after the contract had expired.  Thus, [Litton]
remained `subject to a potentially viable contractual commitment to
arbitrate even after the [Agreement] expired.' "  286 N. L. R. B., at 818
(citation omitted).


Litton did not seek review of, and we do not address here, the Board's
determination that Litton committed an unfair labor practice by its
unilateral abandonment of the grievance process and wholesale repudiation
of any postexpiration obligation to arbitrate disputes.
    In fashioning a remedy, the Board went on to consider the arbitrability
of these particular layoff grievances.  Following Indiana & Michigan, the
Board declared its determination to order arbitration "only when the
grievances at issue `arise under' the expired contract."  286 N. L. R. B.,
at 821 (citing Nolde Bros., supra).  In finding that the dispute about
layoffs was outside this category, the Board reasoned as follows:

"The conduct that triggered the grievances . . . occurred after the
contract had expired.  The right to layoff by seniority if other factors
such as ability and experience are equal is not `a right worked for or
accumulated over time.'  Indiana & Michigan, supra at 61.  And, as in
Indiana & Michigan Electric, there is no indication here that `the parties
contemplated that such rights could ripen or remain enforceable even after
the contract expired.'  Id. (citation omitted).  Therefore, [Litton] had no
contractual obligation to arbitrate the grievances."  286 N. L. R. B., at
821-822.


Although the Board refused to order arbitration, it did order Litton to
process the grievances through the two-step grievance procedure, to bargain
with the Union over the layoffs, and to provide a limited backpay remedy.
    The Board sought enforcement of its order, and both the Union and
Litton petitioned for review.  The Court of Appeals enforced the Board's
order, with the exception of that portion holding the layoff grievances not
arbitrable.  893 F. 2d 1128 (CA9 1990).  On that question, the Court of
Appeals was willing to "assume without deciding that the Board's Indiana &
Michigan decision is a reasonably defensible construction of the section
8(a)(5) duty to bargain."  Id., at 1137.  The court decided, nevertheless,
that the Board had erred, because the right in question, the right to
layoff in order of seniority if other things such as aptitude and ability
are equal, did arise under the Agreement.  The Court of Appeals thought the
Board's contrary conclusion was in conflict with two later Board decisions,
where the Board had recognized that seniority rights may arise under an
expired contract, United Chrome Products, Inc., 288 N. L. R. B. 1176
(1988), and Uppco, Inc., 288 N. L. R. B. 937 (1988).
    The court cited a second conflict, one between Indiana & Michigan and
the court's own interpretation of Nolde Bros. in Local Joint Executive Bd.
of Las Vegas Culinary Workers Union, Local 226 v. Royal Center, Inc., 796
F. 2d 1159 (CA9 1986).  In Royal Center, the Court of Appeals had rejected
the argument that only rights accruing or vesting under a contract prior to
termination are covered by the posttermination duty to arbitrate.  Id., at
1163.
    Litton petitioned for a writ of certiorari.  Because of substantial
disagreement as to the proper application of our decision in Nolde Bros.,
{1} we granted review limited to the question of arbitrability of the
layoff grievances.  --- U. S. ---.

II


A
    Sections 8(a)(5) and 8(d) of the NLRA, 29 U. S. C. 15 158(a)(5) and
(d), require an employer to bargain "in good faith with respect to wages,
hours, and other terms and conditions of employment."  The Board has taken
the position that it is difficult to bargain if, during negotiations, an
employer is free to alter the very terms and conditions that are the
subject of those negotiations.  The Board has determined, with our
acceptance, that an employer commits an unfair labor practice if, without
bargaining to impasse, it effects a unilateral change of an existing term
or condition of employment.  See NLRB v. Katz, 369 U. S. 736 (1962).  In
Katz the union was newly certified and the parties had yet to reach an
initial agreement.  The Katz doctrine has been extended as well to cases
where, as here, an existing agreement has expired and negotiations on a new
one have yet to be completed.  See, e. g., Laborers Health and Welfare
Trust Fund v. Advanced Lightweight Concrete Co., 484 U. S. 539, 544, n. 6
(1988).
    Numerous terms and conditions of employment have been held to be the
subject of mandatory bargaining under the NLRA.  See generally 1 C. Morris,
The Developing Labor Law 772-844 (2d ed. 1983).  Litton does not question
that arrangements for arbitration of disputes are a term or condition of
employment and a mandatory subject of bargaining.  See id., at 813 (citing
cases); United States Gypsum Co., 94 N. L. R. B. 112, 131 (1951).
    The Board has ruled that most mandatory subjects of bargaining are
within the Katz prohibition on unilateral changes.  The Board has
identified some terms and conditions of employment, however, which do not
survive expiration of an agreement for purposes of this statutory policy.
For instance, it is the Board's view that union security and dues check-off
provisions are excluded from the unilateral change doctrine because of
statutory provisions which permit these obligations only when specified by
the express terms of a collective-bargaining agreement.  See 29 U. S. C.
MDRV 158(a)(3) (union security conditioned upon agreement of the parties);
29 U. S. C. MDRV 186(c)(4) (dues check-off valid only until termination
date of agreement); Indiana & Michigan, 284 N. L. R. B., at 55 (quoting
Bethelem Steel, 136 N. L. R. B., at 1502).  Also, in recognition of the
statutory right to strike, no-strike clauses are excluded from the
unilateral change doctrine, except to the extent other dispute resolution
methods survive expiration of the agreement.  See 29 U. S. C. 15 158(d)(4),
163 (union's statutory right to strike); Southwestern Steel & Supply, Inc.
v. NLRB, 257 U. S. App. D. C. 19, 23, 806 F. 2d 1111, 1114 (1986).
    In Hilton-Davis Chemical Co., 185 N. L. R. B. 241 (1970), the Board
determined that arbitration clauses are excluded from the prohibition on
unilateral changes, reasoning that the commitment to arbitrate is a
"voluntary surrender of the right of final decision which Congress . . .
reserved to [the] parties. . . .  [A]rbitration is, at bottom, a consensual
surrender of the economic power which the parties are otherwise free to
utilize."  Id., at 242.  The Board further relied upon our statements
acknowledging the basic federal labor policy that "arbitration is a matter
of contract and a party cannot be required to submit to arbitration any
dispute which he has not agreed so to submit."  United Steelworkers of
America v. Warrior & Gulf Navigation Co., 363 U. S. 574, 582 (1960).  See
also 29 U. S. C. MDRV 173(d) (phrased in terms of parties' agreed upon
method of dispute resolution under an existing bargaining agreement).
Since HiltonDavis the Board has adhered to the view that an arbitration
clause does not, by operation of the NLRA as interpreted in Katz, continue
in effect after expiration of a collectivebargaining agreement.

B
    The Union argues that we should reject the Board's decision in
Hilton-Davis Chemical Co., and instead hold that arbitration provisions are
within Katz' prohibition on unilateral changes.  The unilateral change
doctrine, and the exclusion of arbitration from the scope of that doctrine,
represent the Board's interpretation of the NLRA requirement that parties
bargain in good faith.  And "[i]f the Board adopts a rule that is rational
and consistent with the Act . . . then the rule is entitled to deference
from the courts."  Fall River Dyeing & Finishing Corp. v. NLRB, 482 U. S.
27, 42 (1987); see, e. g., NLRB v. Curtin Matheson Scientific, Inc., 494 U.
S. ---, --- (1990).
    We think the Board's decision in Hilton-Davis Chemical Co. is both
rational and consistent with the Act.  The rule is grounded in the strong
statutory principle, found in both the language of the NLRA and its
drafting history, of con sensual rather than compulsory arbitration.  See
Indiana & Michigan, supra, at 57-58; Hilton-Davis Chemical Co., supra.  The
rule conforms with our statement that "[n]o obligation to arbitrate a labor
dispute arises solely by operation of law.  The law compels a party to
submit his grievance to arbitration only if he has contracted to do so."
Gateway Coal Co. v. Mine Workers, 414 U. S. 368, 374 (1974).  We reaffirm
today that under the NLRA arbitration is a matter of consent, and that it
will not be imposed upon parties beyond the scope of their agreement.
    In the absence of a binding method for resolution of post expiration
disputes, a party may be relegated to filing unfair labor practice charges
with the Board if it believes that its counterpart has implemented a
unilateral change in violation of the NLRA.  If, as the Union urges,
parties who favor labor arbitration during the term of a contract also
desire it to resolve postexpiration disputes, the parties can consent to
that arrangement by explicit agreement.  Further, a collective-bargaining
agreement might be drafted so as to eliminate any hiatus between expiration
of the old and execution of the new agreement, or to remain in effect until
the parties bargain to impasse. {2}  Unlike the Union's suggestion that we
impose arbitration of postexpiration disputes upon parties once they agree
to arbitrate disputes arising under a contract, these alternatives would
reinforce the statutory policy that arbitration is not compulsory.

III
    The Board argues that it is entitled to substantial deference here
because it has determined the remedy for an unfair labor practice.  As
noted above, we will uphold the Board's interpretation of the NLRA so long
as it is "rational and consistent with the Act."  Fall River Dyeing &
Finishing Corp. v. NLRB, supra, at 42.  And we give the greatest latitude
to the Board when its decision reflects its " `difficult and delicate
responsibility' of reconciling conflicting interests of labor and
management," NLRB v. J. Weingarten, Inc., 420 U. S. 251, 267 (1975).  We
have accorded the Board considerable authority to structure its remedial
orders to effect the purposes of the NLRA and to order the relief it deems
appropriate.  See Shepard v. NLRB, 459 U. S. 344, 352 (1983); Virginia
Elec. & Power Co. v. NLRB, 319 U. S. 533, 540 (1943).
    The portion of the Board's decision which we review today does discuss
the appropriate remedy for a violation of the NLRA.  But it does not follow
that we must accord the same deference we recognized in Virginia Elec. &
Power Co. and Shepard.  Here, the Board's remedial discussion is not
grounded in terms of any need to arbitrate these grievances in order "to
effectuate the policies of the Act."  Virginia Elec. & Power Co., supra, at
540.  Rather, the Board's decision not to order arbitration of the layoff
grievances rests upon its interpretation of the Agreement, applying our
decision in Nolde Bros. and the federal common law of collectivebargaining
agreements.  The Board now defends its decision on the ground that it need
not "reflexively order that which a complaining party may regard as
`complete relief' for every unfair labor practice," Shepard v. NLRB, supra,
at 352; but its decision did not purport to rest upon such grounds.
    Although the Board has occasion to interpret collectivebargaining
agreements in the context of unfair labor practice adjudication, see NLRB
v. C & C Plywood Corp., 385 U. S. 421 (1967), the Board is neither the sole
nor the primary source of authority in such matters.  "Arbitrators and
courts are still the principal sources of contract interpretation."  NLRB
v. Strong, 393 U. S. 357, 360-361 (1969).  Section 301 of the Labor
Management Relations Act (LMRA), 29 U. S. C. MDRV 185, "authorizes federal
courts to fashion a body of federal law for the enforcement of . . .
collective bargaining agreements."  Textile Workers v. Lincoln Mills of
Alabama, 353 U. S. 448, 451 (1957) (emphasis added).  We would risk the
development of conflicting principles were we to defer to the Board in its
interpretation of the contract, as distinct from its devising a remedy for
the unfair labor practice that follows from a breach of contract.  We
cannot accord deference in contract interpretation here only to revert to
our independent interpretation of collective-bargaining agreements in a
case arising under MDRV 301.  See Local Union 1395, Int'l Brotherhood of
Electrical Workers v. NLRB, 254 U. S. App. D. C. 360, 363-364, 797 F. 2d
1027, 1030-1031 (1986).

IV
    The duty not to effect unilateral changes in most terms and conditions
of employment, derived from the statutory command to bargain in good faith,
is not the sole source of possible constraints upon the employer after the
expiration date of a collective-bargaining agreement.  A similar duty may
arise as well from the express or implied terms of the expired agreement
itself.  This, not the provisions of the NLRA, was the source of the
obligation which controlled our decision in Nolde Bros., Inc. v. Bakery
Workers, 430 U. S. 243 (1977).  We now discuss that precedent in the
context of the case before us.
    In Nolde Bros., a union brought suit under MDRV 301 of the Labor
Management Relations Act, 29 U. S. C. MDRV 185, to compel arbitration.
Four days after termination of a collectivebargaining agreement, the
employer decided to cease operations.  The employer settled employee wage
claims, but refused to pay severance wages called for in the agreement, and
declined to arbitrate the resulting dispute.  The union argued that these
wages

"were in the nature of `accrued' or `vested' rights, earned by employees
during the term of the contract on essentially the same basis as vacation
pay, but payable only upon termination of employment."  Nolde Bros., 430 U.
S., at 248.


We agreed that

"whatever the outcome, the resolution of that claim hinges on the
interpretation ultimately given the contract clause providing for severance
pay.  The dispute therefore, although arising after the expiration of the
collective-bargaining contract, clearly arises under that contract."  Id.,
at 249 (emphasis in original).


    We acknowledged that "the arbitration duty is a creature of the
collective-bargaining agreement" and that the matter of arbitrability must
be determined by reference to the agreement, rather than by compulsion of
law.  Id., at 250-251.  With this understanding, we held that the extensive
obligation to arbitrate under the contract in question was not consistent
with an interpretation that would eliminate all duty to arbitrate as of the
date of expiration.  That argument, we noted,

"would preclude the entry of a post-contract arbitration order even when
the dispute arose during the life of the contract but arbitration
proceedings had not begun before termination.  The same would be true if
arbitration processes began but were not completed, during the contract's
term."  Id., at 251.


We found "strong reasons to conclude that the parties did not intend their
arbitration duties to terminate automatically with the contract," id., at
253, and noted that "the parties' failure to exclude from arbitrability
contract disputes arising after termination . . . affords a basis for
concluding that they intended to arbitrate all grievances arising out of
the con tractual relationship," id., at 255.  We found a presumption in
favor of postexpiration arbitration of matters unless "negated expressly or
by clear implication," ibid., but that conclusion was limited by the vital
qualification that arbitration was of matters and disputes arising out of
the relation governed by contract.

A
    Litton argues that provisions contained in the Agreement rebut the
Nolde Bros. presumption that the duty to arbitrate disputes arising under
an agreement outlasts the date of expiration.  The Agreement provides that
its stipulations "shall be in effect for the time hereinafter specified,"
App. 22, in other words, until the date of expiration and no longer.  The
Agreement's no-strike clause, which Litton characterizes as a quid pro quo
for arbitration, applies only "during the term of this [a]greement," id.,
at 34.  Finally, the Agreement provides for "interest arbitration" in case
the parties are unable to conclude a successor agreement, id., at 53-55,
proving that where the parties wished for arbitration other than to resolve
disputes as to contract interpretation, they knew how to draft such a
clause.  These arguments cannot prevail.  The Agreement's unlimited
arbitration clause, by which the parties agreed to arbitrate all
"[d]ifferences that may arise between the parties" regarding the Agreement,
violations thereof, or "the construction to be placed on any clause or
clauses of the Agreement," id., at 34, places it within the precise
rationale of Nolde Bros.  It follows that if a dispute arises under the
contract here in question, it is subject to arbitration even in the
postcontract period.

B
    With these matters resolved, we come to the crux of our inquiry.  We
agree with the approach of the Board and those courts which have
interpreted Nolde Bros. to apply only where a dispute has its real source
in the contract.  The object of an arbitration clause is to implement a
contract, not to transcend it.  Nolde Bros. does not announce a rule that
postexpiration grievances concerning terms and conditions of employment
remain arbitrable.  A rule of that sweep in fact would contradict the
rationale of Nolde Bros.  The Nolde Bros. presumption is limited to
disputes arising under the contract.  A postexpiration 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, or
where, under normal principles of contract interpretation, the disputed
contractual right survives expiration of the remainder of the agreement.
    Any other reading of Nolde Bros. seems to assume that postexpiration
terms and conditions of employment which coincide with the contractual
terms can be said to arise under an expired contract, merely because the
contract would have applied to those matters had it not expired.  But that
interpretation fails to recognize that an expired contract has by its own
terms released all its parties from their respective contractual
obligations, except obligations already fixed under the contract but as yet
unsatisfied.  Although after expiration most terms and conditions of
employment are not subject to unilateral change, in order to protect the
statutory right to bargain, those terms and conditions no longer have force
by virtue of the contract.  See Office and Professional Employees Ins.
Trust Fund v. Laborers Funds Administrative Office of Northern California,
Inc. 783 F. 2d 919, 922 (CA9 1986) ("An expired [collective bargaining
agreement] . . . is no longer a `legally enforceable document.' " (citation
omitted)); cf. Derrico v. Sheehan Emergency Hosp., 844 F. 2d 22, 25-27 (CA2
1988) (Section 301 of the LMRA, 29 U. S. C. MDRV 185, does not provide a
federal court jurisdiction where a bargaining agreement has expired,
although rights and duties under the expired agreement "retain legal
significance because they define the status quo" for purposes of the
prohibition on unilateral changes).
    The difference is as elemental as that between Nolde Bros. and Katz.
Under Katz, terms and conditions continue in effect by operation of the
NLRA.  They are no longer agreedupon terms; they are terms imposed by law,
at least so far as there is no unilateral right to change them.  As the
Union acknowledges, the obligation not to make unilateral changes is
"rooted not in the contract but in preservation of existing terms and
conditions of employment and applies before any contract has been
negotiated."  Brief for Respondents 34, n. 21.  Katz illustrates this point
with utter clarity, for in Katz the employer was barred from imposing
unilateral changes even though the parties had yet to execute their first
collective-bargaining agreement.
    Our decision in Laborers Health and Welfare Trust Fund v. Advanced
Lightweight Concrete Co., Inc., 484 U. S. 539 (1988), further demonstrates
the distinction between contractual obligations and postexpiration terms
imposed by the NLRA.  There, a bargaining agreement required employer
contributions to a pension fund.  We assumed that under Katz the employer's
failure to continue contributions after expiration of the agreement could
constitute an unfair labor practice, and if so the Board could enforce the
obligation.  We rejected, however, the contention that such a failure
amounted to a violation of the ERISA obligation to make contributions
"under the terms of a collectively bargained agreement . . . in accordance
with the terms and conditions of . . . such agreement."  29 U. S. C. MDRV
1145.  Any postexpiration obligation to contribute was imposed by the NLRA,
not by the bargaining agreement, and so the district court lacked
jurisdiction under MDRV 502(g)(2) of ERISA, 29 U. S. C. MDRV 1132(g) (2),
to enforce the obligation.
    As with the obligation to make pension contributions in Advanced
Lightweight Concrete Co., other contractual obligations will cease, in the
ordinary course, upon termination of the bargaining agreement.  Exceptions
are determined by contract interpretation.  Rights which accrued or vested
under the agreement will, as a general rule, survive termination of the
agreement.  And of course, if a collectivebargaining agreement provides in
explicit terms that certain benefits continue after the agreement's
expiration, disputes as to such continuing benefits may be found to arise
under the agreement, and so become subject to the contract's arbitration
provisions.  See United Steelworkers of America v. Fort Pitt Steel Casting,
Division of Conval-Penn, Inc., 598 F. 2d 1273 (CA3 1979) (agreement
provided for continuing medical benefits in the event of postexpiration
labor dispute).
    Finally, as we found in Nolde Bros., structural provisions relating to
remedies and dispute resolution -- for example, an arbitration provision --
may in some cases survive in order to enforce duties arising under the
contract.  Nolde Bros.' statement to that effect under MDRV 301 of the LMRA
is similar to the rule of contract interpretation which might apply to
arbitration provisions of other commercial contracts. {3}  We presume as a
matter of contract interpretation that the parties did not intend a pivotal
dispute resolution provision to terminate for all purposes upon the
expiration of the agreement.
C
    The Union, and Justice Stevens' dissent, argue that we err in reaching
the merits of the issue whether the posttermination grievances arise under
the expired agreement because, it is said, that is an issue of contract
interpretation to be submitted to an arbitrator in the first instance.
Whether or not a company is bound to arbitrate, as well as what issues it
must arbitrate, is a matter to be determined by the court, and a party
cannot be forced to "arbitrate the arbitrability issue."  AT&T
Technologies, Inc. v. Communication Workers of America, 475 U. S. 643, 651.
We acknowledge that where an effective bargaining agreement exists between
the parties, and the agreement contains a broad arbitration clause, "there
is a presumption of arbitrability in the sense that `[a]n order to
arbitrate the particular grievance should not be denied unless it may be
said with positive assurance that the arbitration clause is not susceptible
of an interpretation that covers the asserted dispute.' "  Id., at 650
(quoting Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 564,
582-583 (1960)).  But we refuse to apply that presumption wholesale in the
context of an expired bargaining agreement, for to do so would make
limitless the contractual obligation to arbitrate.  Although "[d]oubts
should be resolved in favor of coverage," AT&T Technologies, supra, at 650,
we must determine whether the parties agreed to arbitrate this dispute, and
we cannot avoid that duty because it requires us to interpret a provision
of a bargaining agreement.
    We apply these principles to the layoff grievances in the present case.
The layoffs took place almost one year after the Agreement had expired.  It
follows that the grievances are arbitrable only if they involve rights
which accrued or vested under the Agreement, or rights which carried over
after expiration of the Agreement, not as legally imposed terms and
conditions of employment but as continuing obligations under the contract.
    The contractual right at issue, that "in case of layoffs, lengths of
continuous service will be the determining factor if other things such as
aptitude and ability are equal," App. 30, involves a residual element of
seniority.  Seniority provisions, the Union argues, "create a form of
earned advantage, accumulated over time, that can be understood as a
special form of deferred compensation for time already worked."  Brief for
Respondents 23-25, n. 14.  Leaving aside the question whether a provision
requiring all layoffs to proceed in inverse order of seniority would
support an analogy to the severance pay at issue in Nolde Bros., which was
viewed as a form of deferred compensation, the layoff provision here cannot
be so construed, and cannot be said to create a right that vested or
accrued during the term of the Agreement, or a contractual obligation that
carries over after expiration.
    The order of layoffs under the Agreement was to be de termined
primarily with reference to "other factors such as aptitude and ability."
Only where all such factors were equal was the employer required to look to
seniority.  Here, any arbitration proceeding would of necessity focus upon
whether aptitude and ability -- and any unenumerated "other factors" --
were equal long after the Agreement had expired, as of the date of the
decision to lay employees off and in light of Litton's decision to close
down its cold-type printing operation.
    The important point is that factors such as aptitude and ability do not
remain constant, but change over time.  They cannot be said to vest or
accrue or be understood as a form of deferred compensation.  Specific
aptitudes and abilities can either improve or atrophy.  And the importance
of any particular skill in this equation varies with the requirements of
the employer's business at any given time.  Aptitude and ability cannot be
measured on some universal scale, but only by matching an employee to the
requirements of an employer's business at that time.  We cannot infer an
intent on the part of the contracting parties to freeze any particular
order of layoff or vest any contractual right as of the Agreement's
expiration. {4}

V
    For the reasons stated, we reverse the judgment of the Court of Appeals
to the extent that the Court of Appeals refused to enforce the Board's
order in its entirety and remanded the cause for further proceedings.

It is so ordered.









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1
    The conflict between the Ninth Circuit's reasoning in Local Joint
Executive Bd. of Las Vegas Culinary Workers Union, Local 226 v. Royal
Center, Inc., 796 F. 2d 1159 (1986), and the Board's approach in Indiana &
Michigan Electric Co., 284 N. L. R. B. 53 (1987), reflects a wider split of
authority.  The Third and Fifth Circuits follow an approach similar to that
of the Ninth Circuit.  See Federated Metals Corp. v. United Steelworkers of
America, 648 F. 2d 856, 861 (CA3), cert. denied, 454 U. S. 1031 (1981);
Seafarers Int'l Union of North America v. National Marine Servs., Inc., 820
F. 2d 148, 152-154 (CA5), cert. denied, 484 U. S. 953 (1987).  The Eighth
Circuit, Tenth Circuit, and the Michigan Supreme Court follow the Board's
approach and limit the presumption of post-expiration arbitrability to
rights that accrued or vested under the agreement, or events that took
place prior to expiration of the agreement.  See Chauffeurs, Teamsters and
Helpers, Local Union 238 v. C. R. S. T. Inc., 795 F. 2d 1400, 1404 (CA8
1986) (en banc); United Food & Commercial Workers Int'l Union, AFL-CIO,
Local 7 v. Gold Star Sausage Co., 897 F. 2d 1022, 1025-1026 (CA10 1990);
County of Ottawa v. Jaklinski, 423 Mich. 1, 377 N. W. 2d 668 (1985)
(discussing Nolde in context of Michigan law applicable to public
employers).  The Seventh Circuit, finally, restricts application of Nolde
Bros. to a limited period following expiration of a bargaining agreement.
See Local 703, Int'l Brotherhood of Teamsters v. Kennicott Bros. Co., 771
F. 2d 300 (1985).

2
    See, e. g., NLRB v. New England Newspapers, Inc., 856 F. 2d 409, 410
(CA1 1988) (agreement would continue in effect until a new agreement was
reached); Montgomery Mailers' Union No. 127 v. The Advertiser Co., 827 F.
2d 709, 712, n. 5 (CA11 1987) (agreement to continue in effect "for a
reasonable time for negotiation of a new agreement"); Teamsters Local Union
688 v. John J. Meier Co., 718 F. 2d 286, 287 (CA8 1983) ("all terms and
provisions of the expired agreement shall continue in effect until a new
agreement is adopted or negotiations are terminated").

3
    See, e. g., West Virginia ex rel. Ranger Fuel Corp. v. Lilly, 165 W.
Va. 98, 100-101, 267 S. E. 2d 435, 437-438 (W. Va. 1980) (duty to arbitrate
survives termination of lease); Warren Brothers Co. v. Cardi Corp., 471 F.
2d 1304 (CA1 1973) (arbitration clause survives completion of work under
construction contract); Mendez v. Trustees of Boston University, 362 Mass.
353, 356, 285 N. E. 2d 446, 448 (1972) (termination of employment contract
"does not necessarily terminate a provision for arbitration or other agreed
procedure for the resolution of disputes"); The Batter Building Materials
Co. v. Kirschner, 142 Conn. 1, 10-11, 110 A. 2d 464, 469-470 (1954)
(arbitration clause in building contract not affected by a party's
repudiation or total breach of contract).

4
    Although our decision that the dispute does not arise under the
Agreement does, of necessity, determine that as of August 1980 the
employees lacked any vested contractual right to a particular order of
layoff, the Union would remain able to argue that the failure to lay off in
inverse order of seniority if "other things such as aptitude and ability"
were equal amounted to an unfair labor practice, as a unilateral change of
a term or condition of employment.  We do not decide whether, in fact, the
layoffs were out of order.