PAEZ, Circuit Judge:
This appeal presents two issues arising from a petition to compel arbitration under a collective bargaining agreement between the International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists, and Allied Crafts of the United States, its Territories and Canada and its Trusteed Local 720 Las Vegas, Nevada ("IATSE") and InSync Show Productions, Inc. ("InSync"). It is undisputed that IATSE and InSync agreed to a collective bargaining agreement containing both a grievance and arbitration procedure and a provision governing the length of the agreement's life. After the parties unsuccessfully negotiated regarding a potential successor agreement, IATSE filed a petition to compel arbitration in federal court. The district court granted IATSE's petition to compel arbitration pursuant to the parties' initial agreement and "stayed" the case. We must decide whether we have jurisdiction over InSync's appeal from the order compelling arbitration and, if so, whether the district court properly compelled arbitration. We conclude that the district court's arbitration order was final under 28 U.S.C. § 1291 because the stay lacked any legal or practical effect. We therefore exercise jurisdiction to review the order compelling arbitration, and we affirm.
InSync and IATSE entered into a collective bargaining agreement (the "2003-2007 CBA") in January 2003. Article 26 of the 2003-2007 CBA, which governs the term of the agreement, contains an "evergreen clause." Article 26 stated:
(emphasis added).
Article 15 of the 2003-2007 CBA includes a grievance and arbitration procedure. That provision defines "a grievance... as a claim or allegation by an employee in the bargaining unit or by the Union that the Employer has violated or is violating the provisions of this Agreement." If the parties proceed to arbitration, "[t]he arbitrator's award shall be based solely upon his interpretation of the meaning or application of the provisions of this Agreement."
On October 2, 2007, IATSE informed InSync that IATSE was interested in changing the terms of the 2003-2007 CBA. InSync responded on November 10 with a letter, explaining "that InSync did not intend to renew the [2003-2007 CBA]." IATSE wrote back on November 15, stating that the National Labor Relations Act ("NLRA"), 29 U.S.C. § 151 et seq., required the parties to bargain in good faith. IATSE included a proposed "Extension Agreement," the "2008-2012 CBA," that InSync indicated would "extend the terms of the 2003-2007[CBA]." InSync did not
Between August 22, 2008 and February 11, 2009, InSync and IATSE corresponded about a possible successor collective bargaining agreement. On February 11, 2009, InSync wrote to IATSE, stating that "the parties had reached impasse in bargaining and InSync reserved the right to implement any or all of the terms and conditions set forth in the Company's [previously sent] December 10, 2008, proposal." Shortly thereafter, on February 20, 2009, InSync sent and invited a response to its "last, best and final offer." On March 17 and 18, IATSE sent a counterproposal, and InSync reiterated its position without accepting that counterproposal. The parties did not reach an agreement.
On August 2, 2011, IATSE invoked the parties' grievance and arbitration procedure and requested a meeting. Two weeks later, InSync responded that the "parties had bargained to impasse between 2007 and 2009, no extension agreement had been signed, and the statute of limitations under Section 10(b) of the [NLRA] barred any legal actions based on the negotiations during 2007-2009."
On September 30, 2011, IATSE wrote to InSync, asserting its position that InSync was bound by provisions in the 2003-2007 CBA that rendered the proposed 2008-2012 CBA effective. The 2008-2012 CBA had terms "identical" to those in the 2003-2007 CBA. On October 10, InSync informed IATSE that it believed that "a refusal to bargain charge under Section 8(a)(5) [of the NLRA] was time barred, and a grievance under Article 15 of the collective bargaining agreement was also time barred." On October 24, IATSE responded with a letter, stating that the letter "serve[d] as the Union's grievance filed pursuant to Article 15, because the Employer is violating each and every section of the Collective Bargaining Agreement... insofar as the Employer is operating on a completely non-union basis and ignoring the contract completely." InSync responded on November 2, reiterating its views on timeliness, and concluding: "The best I can tell you is do what you have to do."
On February 2, 2012, IATSE filed a petition to compel arbitration in the district court. IATSE argued that the 2008-2012 CBA, with terms identical to those in the 2003-2007 CBA, was enforceable as a result of the 2003-2007 CBA's evergreen clause. InSync responded by filing a motion to dismiss, or, alternatively, for summary judgment, on grounds that the NLRA preempted IATSE's action and that the district court lacked jurisdiction.
The district court rejected IATSE's position that the 2008-2012 CBA "binds the parties," reasoning that such a position "apparently read out the portion of the Evergreen Clause that states that the [2003-2007] CBA would continue in effect `from year to year' after its expiration, not in block chunks of four-year periods." Instead, the court considered the text of the 2003-2007 CBA and declined to "reach the merits of [InSync's] argument [that InSync had cancelled the 2003-2007 CBA's evergreen clause]." The court took no position on the merits of InSync's argument and "decide[d] that because [the] argument requires interpretation of the [2003-2007] CBA and a determination of whether it was cancelled, the argument is better left for an arbitrator to decide pursuant to the arbitration clause and [IATSE]'s grievance process." The court granted IATSE's petition to compel arbitration, denied InSync's motion, and ordered
We turn first to whether we have jurisdiction to entertain InSync's appeal. IATSE argues that appellate jurisdiction does not exist because the district court's order compelling arbitration and staying the case did not constitute a final order under 28 U.S.C. § 1291. As we explain below, we conclude that we have jurisdiction and that we may address the merits of InSync's appeal.
"Federal courts `have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.'" Couch v. Telescope Inc., 611 F.3d 629, 632 (9th Cir. 2010) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986)). Generally, this court "ha[s] jurisdiction of appeals from all final decisions of the district courts of the United States[.]" 28 U.S.C. § 1291. "Appeal gives the upper court a power of review, not one of intervention. So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
Under Goodall-Sanford v. United Textile Workers of America, A.F.L. Local 1802, 353 U.S. 550, 77 S.Ct. 920, 1 L.Ed.2d 1031 (1957), we have jurisdiction over InSync's appeal of the order compelling arbitration. In Goodall-Sanford, a union brought a suit in federal district court under § 301(a) of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), and sought to "compel specific performance of a grievance arbitration provision of a collective bargaining agreement." Goodall-Sanford, 353 U.S. at 550-51, 77 S.Ct. 920. The union sought no other relief. See id. The district court ordered arbitration, and on appeal, the First Circuit affirmed. Id. at 551, 77 S.Ct. 920. Subsequently, the Supreme Court also affirmed. Id. In affirming, the Court held that appellate jurisdiction existed, explaining that "[a]rbitration [wa]s not merely a step in judicial enforcement of a claim nor auxiliary to a main proceeding, but the full relief sought." Id. "A decree under § 301(a) ordering enforcement of an arbitration provision in a collective bargaining agreement is, therefore, a `final decision' within the meaning of 28 U.S.C. § 1291." Id. at 551-52, 77 S.Ct. 920.
We have held that Goodall-Sanford permits review of appeals from orders compelling arbitration as the "full relief sought" in § 301 cases. See United Food & Commercial Workers Union, Locals 197, 373, 428, 588, 775, 839, 870, 1119, 1179 & 1532 v. Alpha Beta Co., 736 F.2d 1371, 1373 & n. 3 (9th Cir.1984) (citing Goodall-Sanford and stating: "Because the district court's granting of a petition to compel arbitration under a collective bargaining agreement is a final decision under 28 U.S.C. § 1291 ... we have jurisdiction over this appeal"); see also Abernathy v. S. Cal. Edison, 885 F.2d 525, 528 n. 13 (9th Cir.1989) (noting that the immediate appealability of orders compelling arbitration under Goodall-Sanford "is inconsistent with the policies underlying the arbitration process[,]" but explaining that "until the Supreme Court or Congress acts, the final judgment cases require such an outcome").
IATSE also invoked the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq., as a statutory basis for its petition to compel arbitration. IATSE argues that the FAA applies to the parties' collective bargaining agreement and precludes appellate jurisdiction because the district court "stayed" this case pending arbitration. See 9 U.S.C. §§ 3, 16(b)(1).
We need not decide, however, whether the FAA applies in this case because we have jurisdiction to review the order compelling arbitration whether we apply the FAA, or the LMRA as interpreted by Goodall-Sanford.
The Supreme Court interpreted the phrase, "final decision with respect to an arbitration," in Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 86-87, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). "[T]he term `final decision' in § 16(a)(3) has the longstanding meaning of a decision that `ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment.'" Bushley v. Credit Suisse First Boston, 360 F.3d 1149, 1152 (9th Cir.2004) (quoting Green Tree, 531 U.S. at 86, 121 S.Ct. 513). In Green Tree, a plaintiff initially had alleged statutory claims against a lender, after which the lender brought a motion to compel arbitration as provided in the parties' written agreement and to dismiss the plaintiff's claims with prejudice. 531 U.S. at 83-84, 121 S.Ct. 513. Until that point, the federal courts had distinguished "independent" proceedings (when "a request to order arbitration is the sole issue before the court") from "embedded" proceedings ("actions involving both a request for arbitration and other claims for relief") to determine whether a "final decision" arose under § 16(a)(3). Id. at 87, 121 S.Ct. 513. The Supreme Court rejected this distinction as one at odds with the plain text in § 16(a)(3). See id. at 88-89, 121 S.Ct. 513. Green Tree ultimately held that "where... the District Court has ordered the parties to proceed to arbitration, and dismissed all the claims before it, that decision is `final' within the meaning of § 16(a)(3), and therefore appealable." Id. at 89, 121 S.Ct. 513. Separately, in a footnote, the Court noted a distinction not at issue in Green Tree: "Had the District Court entered a stay instead of a dismissal in this case, that order would not be appealable." Id. at 87 n. 2, 121 S.Ct. 513 (citing 9 U.S.C. § 16(b)(1)).
When the only matter before a district court is a petition to compel arbitration and the district court grants the petition, appellate jurisdiction may attach regardless of whether the district court issues a stay. See Lai, 42 F.3d at 1302. The limitation on appellate jurisdiction noted in Green Tree's footnote 2 does not apply here because in Green Tree, the lender moved to compel arbitration where the plaintiff had alleged substantive claims for relief in her complaint. See Green Tree, 531 U.S. at 83, 121 S.Ct. 513. Before the Supreme Court decided Green Tree, we had held that: "if the motion to compel arbitration in a given case is the only claim before the district court, a decision to compel arbitration is deemed to dispose of the entire case, and permit appellate review under 9 U.S.C. § 16(a)(3)." Lai, 42 F.3d at 1302.
In sum, following case law under the LMRA or FAA leads to the same result: a district court presented with a petition to compel arbitration and no other claims cannot prevent appellate review of an order compelling arbitration by issuing a stay. Thus, the order compelling arbitration in this case is a final decision over which we have jurisdiction. See 28 U.S.C. § 1291.
Because the district court's order compelling arbitration is final within the meaning of 28 U.S.C. § 1291, we have jurisdiction over this appeal, and we need not address InSync's alternative theories for jurisdiction under Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), or the collateral order doctrine.
Having determined that we may exercise jurisdiction over this appeal, we turn to the merits. We review de novo the district court's order compelling arbitration. Bushley, 360 F.3d at 1152.
We begin by recognizing some established principles regarding arbitration of disputes under a collective bargaining agreement. First, "`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.'" AT & T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)); Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 200-01, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991). And "except where `the parties clearly and unmistakably provide otherwise,' it is `the court's duty to interpret the agreement and to determine whether the parties intended
AT & T Techs., 475 U.S. at 650, 106 S.Ct. 1415 (quoting Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. 1347).
Brotherhood of Teamsters & Auto Truck Drivers Local No. 70 v. Interstate Distributor Co., 832 F.2d 507 (9th Cir. 1987), governs our approach to InSync's appeal. Interstate Distributor explained how to approach a case in which the parties to a collective bargaining agreement disagree about "the proper meaning or interpretation of [a] termination clause [in their agreement,]" and whether an arbitrator "should decide that question[.]" Id. at 510. There, the parties "agree[d] that they entered into an agreement containing an arbitration clause," did not dispute "the scope of the arbitration clause," and "point[ed] to no language purporting to exclude termination disputes from the scope of the arbitration clause, nor to any ambiguity or uncertainty in that clause." Id. at 510-11. Interstate Distributor held "that where a dispute exists over whether a contract with an arbitration clause has expired or been terminated, the proper initial inquiry for the court is whether the arbitration clause covers such disputes, not whether the termination clause means what [either party] says it means." Id. at 511. In such a case, "the real question [about the termination clause's meaning or interpretation] is one step removed from the issue of substantive arbitrability discussed in AT & T Technologies." Id. at 510.
Here, Article 26 of the 2003-2007 CBA sets out the term of the agreement and includes the evergreen clause, providing, in part, that the 2003-2007 CBA "shall continue in full force and effect to and including December 31st, 2007 and from year to year thereafter." (emphasis added). IATSE's claims that InSync violated provisions of the 2003-2007 CBA require interpretation of the evergreen clause to determine whether the CBA was enforceable between the parties. And InSync does not argue that, under the 2003-2007 CBA, interpreting the evergreen clause falls outside the scope of the arbitration provision. See Interstate Distrib., 832 F.2d at 510-11. Thus, this case is analogous to Interstate Distributor.
The 2003-2007 CBA arbitration provision is similar in scope to the arbitration agreements in Interstate Distributor and Camping Construction Co. v. District Council of Iron Workers, 915 F.2d 1333 (9th Cir.1990). Moreover, the provision covers a dispute between IATSE and InSync — whether the CBA has expired or been terminated — that must be decided before addressing the parties' underlying dispute. See Interstate Distrib., 832 F.2d at 511; Camping, 915 F.2d at 1338.
Camping applied Interstate Distributor's rule that "`when the collective bargaining agreement contains a customary arbitration clause acts of repudiation and other acts of termination must be submitted to arbitration.'" Camping, 915 F.2d at 1338 (quoting Interstate Distrib., 832 F.2d at 511 n. 4). Camping guides our determination of whether the 2003-2007 CBA arbitration
The 2003-2007 CBA arbitration provision's text is similar in scope to that of Interstate Distributor and Camping. In Camping, we explained that "an agreement to arbitrate `any differences that may arise regarding the meaning and enforcement of this Agreement,' or any other broad arbitration clause, such as `any dispute arising out of this Agreement,' ordinarily requires us to hold that the parties have provided for arbitration of disputes regarding termination[.]" Id. at 1338-39 (emphasis added) (footnote omitted); see also McKinney v. Emery Air Freight Corp., 954 F.2d 590, 593 (9th Cir.1992) (applying Interstate Distrib. and Camping to an agreement covering "[a]ny grievance or controversy affecting the mutual relations of the Employer and the Union" and holding that a dispute over whether a labor contract continued to exist after merger was subject to arbitration). And here, the 2003-2007 CBA arbitration provision applies to "a claim or allegation by an employee in the bargaining unit or by the Union that the Employer has violated or is violating the provisions of th[e] Agreement." "The arbitrator's award shall be based solely upon his interpretation of the meaning or application of the provisions of this Agreement." The arbitration provision does not except any particular type of claim or allegation. See Interstate Distrib., 832 F.2d at 510-11.
Further, Camping explained that the Interstate Distributor rule "applies whether the dispute between the parties is solely over termination or repudiation, or whether, as [in Camping], their disagreement over that question is a threshold issue that must be resolved before the underlying dispute can be reached." Camping, 915 F.2d at 1338. And claims or allegations, like IATSE's here, that InSync violated provisions of the 2003-2007 CBA require, as "a threshold" determination, the interpretation of the CBA's Article 26 to determine whether the CBA was enforceable between the parties. See id. Thus, the parties' dispute falls within the scope of the 2003-2007 CBA arbitration provision and is subject to arbitration.
InSync's argument that Litton, 501 U.S. 190, 111 S.Ct. 2215, compels reversal is unavailing. Indeed, that case is inapposite. Litton involved "whether a dispute over layoffs which occurred well after expiration of a collective-bargaining agreement must be said to arise under the agreement despite its expiration." Id. at 193, 111 S.Ct. 2215 (emphases added). There, the parties did not dispute that the agreement had expired. See id. at 193, 200-01, 111 S.Ct. 2215. In fact, the Supreme Court acknowledged that "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
In effect, what InSync urges this court to decide — whether the 2003-2007 CBA had expired when IATSE sought to invoke the grievance and arbitration procedure — is for an arbitrator. In attempting to distinguish Interstate Distributor and Camping, InSync argues that the 2003-2007 CBA had expired and that the parties reached impasse in "attempting to negotiate the terms of a successor agreement." But "once it is found that a contract did exist at some time, the questions of whether that contract has expired, or has been terminated or repudiated, may well present arbitrable issues, depending on the language of the agreed-upon arbitration clause." Camping, 915 F.2d at 1340.
For the reasons discussed above, we exercise jurisdiction over the district
