Petition for Writ of Certiorari — Brent Electric Company, Inc., Petitioner v. International Brotherhood of Electrical Workers Local Union No. 584

Supreme Court briefOct 31, 2024

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NO. 24-_____

In the

Supreme Court of the United States

BRENT ELECTRIC COMPANY, INC.,

Petitioner,

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS LOCAL UNION NO. 584,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

Mark E. Hunt

Counsel of Record

Michael D. Oesterle

Mason C. Rush

Jennifer Sherman Schnall

KING & BALLOW

26 Century Boulevard

Suite NT 700

Nashville, TN 37214

(615) 259-3456

mhunt@kingballow.com

October 31, 2024

SUPREME COURT PRESS

Counsel for Petitioner

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

QUESTION PRESENTED

Brent Electric Company, Inc. (“Brent Electric”)

was bound by a collective bargaining agreement with

the International Brotherhood of Electrical Workers

Local Union No. 584 (the “Union”) effective from June

1, 2018 through May 31, 2021 (the “2018 CBA”). The

2018 CBA contained an interest arbitration provision,

Section 1.02(d), authorizing the Council on Industrial

Relations (the “CIR”) to adjudicate “[u]nresolved

issues or disputes arising out of the failure to

negotiate a renewal or modification of” the agreement.

App.197a. The CIR issued an award dated May 19,

2021, requiring Brent Electric to sign a new collective

bargaining agreement with the Union (the “2021

CBA”) which was drafted by the CIR. App.103a.

However, over the objection of Brent Electric, the 2021

CBA contained numerous provisions which were

nonmandatory subjects of bargaining under the

National Labor Relations Act (“NLRA”).

From these circumstances and the proceedings

below the following question arises, on which the circuit

courts of appeals are squarely divided:

Whether a collective bargaining agreement

awarded through interest arbitration is enforceable as

to nonmandatory subjects of bargaining contained

therein.

PARTIES TO THE PROCEEDINGS

Petitioner and

Plaintiff Counter Defendant-Appellant below

Brent Electric Company, Inc.

Respondent and

Defendant Counter Plaintiff-Appellee below

International Brotherhood of Electrical Workers

Local Union No. 584

CORPORATE DISCLOSURE STATEMENT

Brent Electric Company, Inc. has no parent corporation, and no publicly held company owns 10% or

more of its stock.

iii

LIST OF PROCEEDINGS

U.S. Court of Appeals, Tenth Circuit

No. 23-5108

Published as 110 F.4th 1196 (10th Cir. 2024)

Brent Electric Company, Inc., Plaintiff Counter

Defendant-Appellant v. International Brotherhood of

Electrical Workers Local Union No. 584, Defendant

Counter Plaintiff-Appellee

Opinion and Judgment: Aug. 6, 2024

_____________________

U.S. District Court, N.D. Oklahoma

No. 4:21-cv-00246-CRK-CDL

Brent Electric Co., Inc., Plaintiff/Counter-Defendant,

v. International Brotherhood of Electrical Workers

Local Union No. 584, Defendant/Counter-Plaintiff.

Final Opinion and Order: Sept. 6, 2023

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDINGS ......................... ii

CORPORATE DISCLOSURE STATEMENT ............ ii

LIST OF PROCEEDINGS ......................................... iii

TABLE OF AUTHORITIES .................................... viii

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

STATUTORY PROVISIONS INVOLVED ................. 1

STATEMENT OF THE CASE .................................... 2

A. Statutory Background...................................... 3

1. The Duty to Collectively Bargain Over

Mandatory Subjects and the Right to

Reject Nonmandatory Subjects of

Bargaining Under 29 U.S.C. § 158(d) ........ 3

2. Statutory Grounds for Vacatur of an

Arbitration Award Under 9 U.S.C. § 10

and the Public Policy Exception ................. 5

B. Factual Background ......................................... 7

C. Procedural Background ................................... 9

REASONS FOR GRANTING THE PETITION ....... 12

The Courts of Appeals Are Squarely Divided

on the Question Presented............................. 14

A. The Second, Fifth, Sixth, Seventh,

Eighth, and Ninth Circuits Hold That

Arbitrators Cannot Impose Nonmandatory Subjects of Bargaining Through

Interest Arbitration .................................. 14

TABLE OF CONTENTS – Continued

Page

B. The Tenth Circuit Holds That Arbitrators Can Impose Nonmandatory

Subjects of Bargaining Through Interest

Arbitration ................................................ 24

II. The Tenth Circuit’s Holding Is In Error ....... 25

A. The Tenth Circuit Misinterpreted

Decisions of the Sixth, Eighth, and

Ninth Circuits as Applying Only to

Second-Generation Interest Arbitration

Provisions .................................................. 25

B. The Tenth Circuit’s Reliance on CocaCola Bottling Co. to Distinguish Local

Union No. 38 is Misguided ....................... 27

C. The Rule Against Imposing Permissive

Subjects of Bargaining Through Interest

Arbitration is Rooted in Explicit, WellDefined, and Dominant Public Policy ...... 30

D. The Interest Arbitration Provision of the

2018 CBA Did Not Include Nonmandatory Subjects of Bargaining ...................... 32

III. The Question Presented Requires Immediate

Review and Only This Court Can Resolve the

Circuit Split .................................................... 33

CONCLUSION.......................................................... 35

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion, U.S. Court of Appeals

for the Tenth Circuit (August 6, 2024) .............. 1a

Opinion and Order, U.S. District Court

for the Northern District of Oklahoma

(September 6, 2023).......................................... 58a

Opinion and Order, U.S. District Court for the

Northern District of Oklahoma

(November 16, 2022) ........................................ 87a

STATUTORY PROVISIONS

Statutory Provisions Involved .............................. 102a

9 U.S.C. § 10 .................................................. 102a

29 U.S.C. § 158 ............................................... 102a

OTHER DOCUMENTS

Decision, Council on Industrial Relations

for the Electrical Contracting Industry

(May 19, 2021) ................................................ 103a

IBEW Inside Construction Agreement

Between Local Union No. 584, IBEW

and Brent Electric Company Inc. .................. 106a

Addendum One. Market Recovery Agreement

Between the Brent Electric Company Inc.,

and Local Union No. 584, IBEW .................... 171a

Addendum Two. Memorandum of

Understanding Project Labor Agreements.... 178a

vii

TABLE OF CONTENTS – Continued

Page

Addendum Three. Memorandum of

Understanding CE/CW Program ................... 180a

Addendum Four. Memorandum of

Understanding ................................................ 190a

IBEW Local 584 Target Fund Program

Guidelines ....................................................... 194a

IBEW Inside Construction Agreement Between

Local Union No. 584, IBEW and Eastern

Oklahoma Chapter National Electrical

Contractors Association (June 19, 2018) ....... 196a

viii

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

Allied Chemical & Alkali Workers, Local

Union No. 1 v. Pittsburgh Plate Glass Co.,

404 U.S. 157 (1971) ........................... 5, 12, 16, 31

American Metal Prods., Inc. v. Sheet Metal

Workers Int’l Ass’n, Local Union No. 104,

794 F.2d 1452 (9th Cir. 1986) ............... 17, 23, 26

Carey v. Westinghouse Electric Corp.,

375 U.S. 261 (1964) ............................................. 7

Coca-Cola Bottling Co. of New York v. Soft

Drink & Brewery Workers Union, Loc.

812, Int’l Bhd. of Teamsters, 39 F.3d 408

(2d Cir. 1994) ......................................... 27, 28, 29

Denver & Rio Grande W. R.R. v. Union Pac.

R.R., 119 F.3d 847 (10th Cir. 1997) .................... 6

Eastern Associated Coal Corp. v. Mine

Workers, 531 U.S. 57 (2000) ........................ 24, 30

Fibreboard Paper Prods. Corp. v. NLRB,

379 U.S. 203 (1964) ............................................. 4

First Nat’l Maintenance Corp. v. NLRB,

452 U.S. 666 (1981) ....................................... 4, 12

Hall Street Assocs., LLC v. Mattel, Inc.,

552 U.S. 576 (2008) ............................................. 6

Hotel & Restaurant Employees v. Williams,

752 F.2d 1476 (9th Cir. 1985) ......... 22, 23, 24, 26

Hurd v. Hodge,

334 U.S. 24 (1948) ............................................... 7

TABLE OF AUTHORITIES – Continued

Page

Idaho Statesman v. NLRB,

836 F.2d 1396 (D.C. Cir. 1988) ........................... 3

Local 58, Int’l Bhd. of Elec. Workers v. Se.

Michigan Chapter, Nat’l Elec. Contractors

Ass’n, Inc., 43 F.3d 1026

(6th Cir. 1995) ...................... 18-20, 25, 26, 30, 33

Mastro Plastics Corp. v. NLRB,

350 U.S. 270 (1956) ........................................... 32

Mercy Hosp., Inc. v. Mass. Nurses Ass’n,

429 F.3d 338 (1st Cir. 2005) ................................ 6

Metro. Edison Co. v. NLRB,

460 U.S. 693 (1983) ........................................... 32

Mulvaney Mech., Inc. v. Sheet Metal Workers

Int’l Ass’n, Local 38, 288 F.3d 491

(2d Cir. 2002) ............................................... 27, 28

Muschany v. United States,

324 U.S. 49 (1945) ............................................. 31

Nat’l Treasury Employees Union v. FLRA,

399 F.3d 334 (D.C. Cir. 2005) ............................. 4

NLRB v. Borg-Warner Corp., Wooster Division,

356 U.S. 342 (1958) ..................... 4, 12, 16, 20, 31

NLRB v. Columbus Printing Pressmen

& Assistants’ Union No. 252,

543 F.2d 1161 (1976) ............................. 16, 17, 18

NLRB v. Sheet Metal Workers Int’l Ass’n,

Local Union No. 38, 575 F.2d 394

(2d Cir. 1978) ............................... 5, 12, 14-17, 19,

.............................................. 22, 24, 26-29, 32, 33

TABLE OF AUTHORITIES – Continued

Page

Service Net, Inc.,

340 N.L.R.B. 1245 (2003) .................................... 4

Sheet Metal Workers Int’l Ass’n Local 14

v. Aldrich Air Conditioning,

717 F.2d 456 (8th Cir. 1983) ...... 17, 21-23, 26, 33

Sheet Metal Workers Local Union No. 20 v.

Baylor Heating & Air Conditioning, Inc.,

877 F.2d 547 (7th Cir. 1989) ....................... 21, 33

Sheet Metal Workers Local Union No. 54 v.

E.F. Etie Sheet Metal Co., 1 F.3d 1464

(5th Cir. 1993) ......................................... 5, 16, 17

Sheet Metal Workers, Local Union No. 24 v.

Architectural Metal Works, Inc.,

259 F.3d 418 (6th Cir. 2001) ........... 19, 20, 21, 24

United Paperworks Int’l Union v. Misco,

484 U.S. 29 (1987) ......................................... 6, 31

United Steel v. Wise Alloys, LLC,

642 F.3d 1344 (11th Cir. 2011) ........................... 5

W.R. Grace & Co. v. Rubber Workers,

461 U.S. 757 (1983) ....................................... 7, 30

TABLE OF AUTHORITIES – Continued

Page

STATUTES

9 U.S.C. § 1 .................................................................. 6

9 U.S.C. § 10 ............................................................ 1, 6

9 U.S.C. § 10(a)(4) ....................................................... 6

28 U.S.C. § 1254(1) ..................................................... 1

29 U.S.C. § 151 ............................................................ 3

29 U.S.C. § 158 ............................................................ 2

29 U.S.C. § 158(a)(5) ................................................... 3

29 U.S.C. § 158(b)(3) ................................................... 3

29 U.S.C. § 158(d) ................................................... 3, 4

29 U.S.C. § 169 ............................................................ 3

29 U.S.C. § 185 ............................................................ 5

OPINIONS BELOW

The Opinion of the United States Court of Appeals

for the 10th Circuit, dated August 6, 2024, is published

at 110 F.4th 1196, and reproduced in the appendix at

App.1a. The Opinion and Order of the Northern

District of Oklahoma, dated September 6, 2023, is

reproduced at App.58a. The Opinion and Order of the

Northern District of Oklahoma, dated November 16,

2022 is reproduced at App.87a.

JURISDICTION

The judgment of the Tenth Circuit was entered

on August 6, 2024. This Court has jurisdiction under

28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

9 U.S.C. § 10

(a) In any of the following cases the United

States court in and for the district wherein the

award was made may make an order vacating the

award upon the application of any party to the

arbitration—

[...]

(4) where the arbitrators exceeded their powers,

or so imperfectly executed them that a

mutual, final, and definite award upon the

subject matter submitted was not made.

29 U.S.C. § 158

(d) Obligation to bargain collectively

For the purposes of this section, to bargain collectively is the performance of the mutual obligation

of the employer and the representative of the

employees to meet at reasonable times and confer

in good faith with respect to wages, hours, and

other terms and conditions of employment, or the

negotiation of an agreement, or any question

arising thereunder, and the execution of a written

contract incorporating any agreement reached if

requested by either party, but such obligation

does not compel either party to agree to a proposal or require the making of a concession . . . .

STATEMENT OF THE CASE

This petition presents an important question

concerning the categories of contract provisions an

arbitrator may lawfully include in a collective bargaining agreement awarded through interest arbitration.

The question was raised and briefed in the courts

below. At least six circuit courts of appeals have ruled

that in their jurisdictions, an arbitrator exceeds its

power by including nonmandatory subjects of

bargaining in a new contract award, even pursuant to

a broadly worded interest arbitration provision in the

pre-existing contract. This rule is grounded in the

statutory right, as explicated by this Court, to reject

nonmandatory subjects in collective bargaining.

However, the Tenth Circuit in this case consciously

departed from the six other circuits and reached the

opposite conclusion that there is no limitation on the

power of an arbitrator to impose permissive subjects

of bargaining. The resulting circuit split makes this

important question of national labor policy ripe for

review by the Court.

Statutory Background

1. The Duty to Collectively Bargain Over

Mandatory Subjects and the Right to

Reject

Nonmandatory

Subjects

Bargaining Under 29 U.S.C. § 158(d)

The National Labor Relations Act (“NLRA”), 29

U.S.C. §§ 151-169, governs labor relations in the United

States. Congress enacted the NLRA in 1935 with the

purpose of preventing “obstructions to the free flow of

commerce . . . by encouraging the practice and

procedure of collective bargaining” between employers

and the representatives of their employees. See 29

U.S.C. § 151. In collective bargaining under the NRLA,

three categories of bargaining subjects exist: mandatory, nonmandatory (or “permissive”), and illegal.1

The bargaining obligation of employers and employee

representatives under the NLRA is limited to mandatory subjects of bargaining only. See 29 U.S.C.

§ 158(a)(5), (b)(3), and (d). Section 8(d) of the NLRA

provides in relevant part:

[T]o bargain collectively is the performance

of the mutual obligation of the employer and

1 Illegal subjects of bargaining “are simply those proscribed

by federal or, where appropriately applied, state law.” Idaho

Statesman v. NLRB, 836 F.2d 1396, 1400 (D.C. Cir. 1988).

the representatives of the employees to meet

at reasonable times and confer in good faith

with respect to wages, hours, and other terms

and conditions of employment[.]

29 U.S.C. § 158(d) (emphasis added).

The language of Section 8(d) was carefully crafted

with a purpose of making only “a limited category of

issues subject to compulsory bargaining.” Fibreboard

Paper Prods. Corp. v. NLRB, 379 U.S. 203, 220 (1964)

(Stewart, J., concurring). “As to other matters, however,

each party is free to bargain or not to bargain, and to

agree or not to agree.” NLRB v. Borg-Warner Corp.,

Wooster Division, 356 U.S. 342, 349 (1958) (referring

to permissive subjects of bargaining); see also First

Nat’l Maintenance Corp. v. NLRB, 452 U.S. 666, 674

(1981) (“Although parties are free to bargain about

any legal subject, Congress has limited the mandate

or duty to bargain to matters of ‘wages, hours, and

other terms and conditions of employment.’”).

Accordingly, items that do not fall within the ambit

of “wages, hours, and other terms and conditions of

employment” are merely permissive subjects “over

which the parties have no obligation to bargain[.]”

Nat’l Treasury Employees Union v. FLRA, 399 F.3d

334, 338 (D.C. Cir. 2005). Indeed, this Court has long

held that it is “unlawful to insist upon” nonmandatory

subjects of bargaining. Borg-Warner Corp., 356 U.S.

at 349. The National Labor Relations Board (“NLRB”),

the agency tasked by Congress with enforcement of

the NLRA, has ruled consistently. See, e.g., Service Net,

Inc., 340 N.L.R.B. 1245, 1253 (2003) (“By so insisting

on . . . permissive subjects of bargaining, Respondent

has bargained in bad faith in violation of the Act.”).

Moreover, “[b]y once bargaining and agreeing on

a permissive subject, the parties, naturally, do not

make the subject a mandatory topic of future bargaining.” Allied Chemical & Alkali Workers, Local Union

No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 187

(1971). This principle acknowledges “[t]he importance

of preserving parties’ freedom to exclude nonmandatory subjects from labor agreements[.]” NLRB

v. Sheet Metal Workers Int’l Ass’n, Local Union No. 38,

575 F.2d 394, 399 (2d Cir. 1978) (citing Allied

Chemical, 404 U.S. at 187); see also Sheet Metal

Workers Local Union No. 54 v. E.F. Etie Sheet Metal

Co., 1 F.3d 1464, 1476 (5th Cir. 1993) (“preserving

parties’ freedom to exclude nonmandatory subjects

from labor agreements was an important goal of

national labor policy”) (citing Local Union No. 38, 575

F.2d at 399). Thus, under Section 8(d) of the NLRA,

parties to collective bargaining have a well-defined

“right to insist on excluding nonmandatory subjects

from the collective bargaining agreement.” 575 F.2d

at 399 (emphasis added).

2. Statutory Grounds for Vacatur of an

Arbitration Award Under 9 U.S.C. § 10

and the Public Policy Exception

Under 29 U.S.C. § 185, commonly referred to as

Section 301 of the Labor Management Relations Act

(“LMRA” or the “Taft-Hartley Act”), “[s]uits for violation of contracts between an employer and a labor

organization representing employees” may be brought

in a United States District Court with jurisdiction over

the parties. “Section 301 of the LMRA” also “governs

suits to enforce or vacate an arbitration award arising

out of a collective bargaining agreement.” United Steel v.

Wise Alloys, LLC, 642 F.3d 1344, 1352 (11th Cir. 2011).

In reviewing labor arbitration awards in Section

301 cases, courts often refer to the Federal Arbitration

Act (“FAA”) for guidance. 9 U.S.C. § 1, et seq.; United

Paperworks Int’l Union v. Misco, 484 U.S. 29, 41, n.9

(1987) (“the federal courts have often looked to the

[FAA] for guidance in labor arbitration cases”).

Section 10 of the FAA sets forth the exclusive statutory grounds upon which a court may vacate an arbitration award under the FAA. See Hall Street Assocs.,

LLC v. Mattel, Inc., 552 U.S. 576, 587 (2008) (“the text

compels a reading of the [Section 10] categories as

exclusive”). Section 10(a)(4) specifically provides for

vacatur of an arbitration award “where the arbitrators

exceed their powers, or so imperfectly executed them

that a mutual, final, and definite award upon the

subject matter submitted was not made.” 9 U.S.C.

§ 10(a)(4).

Courts have also acknowledged grounds for vacatur beyond those specifically enumerated in the FAA.

See, e.g., Denver & Rio Grande W. R.R. v. Union Pac.

R.R., 119 F.3d 847, 849 (10th Cir. 1997) (noting that a

court may vacate an arbitration award “for reasons

enumerated in the Federal Arbitration Act, 9 U.S.C.

§ 10, or for a handful of judicially created reasons,”

including violation of public policy); Mercy Hosp., Inc.

v. Mass. Nurses Ass’n, 429 F.3d 338, 343 (1st Cir. 2005)

(“a court may vacate an arbitral award that violates

public policy”). This Court has recognized that courts

may refuse “to enforce an arbitrators’ award under a

collective bargaining agreement because it is contrary

to public policy” under the “general doctrine . . . that a

court may refuse to enforce contracts that violate law

or public policy.” United Paperworkers Int’l Union v.

Misco, Inc., 484 U.S. 29, 42 (1987) (citing W.R. Grace &

Co. v. Rubber Workers, 461 U.S. 757, 766 (1983) and

Hurd v. Hodge, 334 U.S. 24, 34-35 (1948)). Arbitrators

plainly “exceed their power” within the meaning of

Section 10(a)(4) of the FAA, and are thus not entitled

to deference, by issuing awards contrary to a welldefined public policy or repugnant to the law. See, e.g.,

Carey v. Westinghouse Electric Corp., 375 U.S. 261, 27071 (1964) (approving of deference by the NLRB to an

arbitral award “provided . . . the results were not

repugnant to the Act.”).

Factual Background

Brent Electric Company, Inc. (“Brent Electric”) is

an electrical contractor performing work generally in

Eastern Oklahoma. Brent Electric signed a letter of

assent in 1996 authorizing the National Electrical

Contractors Association (“NECA”) to act as its representative for purposes of collective bargaining with

the International Brotherhood of Electrical Workers

Local Union No. 584 (the “Union”). App.3a. Thereafter, Brent Electric was bound to a series of multiemployer collective bargaining agreements negotiated

and agreed to between NECA and the Union, including

a collective bargaining agreement effective from June

1, 2018 through its expiration on May 31, 2021 (“2018

CBA”). App.3a. Section 1.02(d) of the 2018 CBA allowed

for interest arbitration before the Council on Industrial

Relations (“CIR”) in the event of a failure to negotiate

a renewal or modification of the 2018 CBA. Section

1.02(d) provides in relevant part as follows:

Unresolved issues or disputes arising out of

the failure to negotiate a renewal or modification of this agreement . . . may be submitted jointly or unilaterally to the [CIR] for

adjudication. . . . The [CIR]’s decisions shall

be final and binding.

App.197a-198a.

Brent Electric provided timely notice of its termination and revocation of the letter of assent and of

NECA’s right to negotiate on behalf of Brent Electric

prior to the expiration of the 2018 CBA. App.5a. In

February of 2021, counsel for Brent Electric sent a

letter to the Union indicating Brent Electric’s desire

to promptly reach a successor collective bargaining

agreement with the Union based on direct negotiations

between Brent Electric and the Union. App.5a. Brent

Electric specifically indicated certain articles and

sections from the expiring 2018 CBA which were

permissive subjects of bargaining that the Union

could not require Brent Electric to agree to or accept

under federal law. App.5a. On April 9, 2021, counsel

for the Union advised Brent Electric of the Union’s

intent to submit unresolved issues, including permissive subjects of bargaining, to the CIR for adjudication

pursuant to Section 1.02(d) of the 2018 CBA. App.6a.

On April 30, 2021, Brent Electric sent a letter to

the CIR indicating that it specifically objected to the

Union’s unilateral submission of the matter to the

CIR. App.6a, 62a-63a. Along with the letter, Brent

Electric also submitted a brief to the CIR with extensive arguments and legal authority supporting Brent

Electric’s objection to the inclusion of permissive subjects of bargaining in a successor collective bargaining

agreement. App.63a. Despite Brent Electric’s objections,

the CIR included with its preliminary decision dated

May 19, 2021 a collective bargaining agreement containing permissive subjects of bargaining. App.6a.

Brent Electric raised to the CIR numerous errors in

its preliminary decision. On June 28, 2021, Brent

Electric received a final decision from the CIR labeled

as Decision No. 8735 and backdated to May 19, 2021

(“CIR Decision”), along with a corresponding collective

bargaining agreement with an effective period of June

1, 2021 through May 31, 2024 (“2021 CBA”). App.63a,

102a, 106a. Over Brent Electric’s objection, the 2021

CBA imposed by the CIR Decision also contained

numerous permissive subjects of bargaining, including

the requirement to contribute to certain industry funds

and a mandate that Brent Electric become a signatory

to a separate Memorandum of Understanding between

NECA (who no longer had authority to bargain for

Brent Electric), the Union, and Brent Electric. App.

132a-133a, 160a-161a, 163a-167a, 190a.

Procedural Background

Brent Electric commenced the underlying action

in the United States District Court for the Northern

District of Oklahoma (“District Court”) on June 8, 2021.

Brent Electric’s amended complaint asked the District

Court to vacate the CIR Final Decision or, in the alternative, to modify the same to eliminate permissive

subjects of bargaining from the 2021 CBA. The Union

counterclaimed for enforcement of the CIR Final

Decision and sought dismissal of Brent Electric’s claim

by separate motion.

The District Court granted the Union’s motion to

dismiss by its Opinion and Order dated November 16,

2022. App.87a. The District Court held that “[t]he

parties chose arbitration to resolve any dispute over

the next CBA’s terms including the dispute over the

inclusion of permissive provisions.” App.99a. The

District Court acknowledged that a second-generation

interest arbitration clause, a permissive subject of

bargaining, would be unenforceable, but reasoned that

the finding of other courts that “second-generation

interest arbitration clauses violate public policy does

not undermine other permissive clauses” imposed by

an interest arbitration award. App.98a. The District

Court was “unpersuaded” by decisions of the Second

Circuit, Fifth Circuit, and Sixth Circuit, which the

District Court admitted “held that all permissive

clauses imposed by interest arbitration violate public

policy.” App.99a.

Both parties subsequently moved for summary

judgment on the Union’s counterclaim. The District

Court granted summary judgment in favor of the Union

by its September 6, 2023 Opinion and Order. App.58a.

Relying again on the language of Section 1.02(d) of the

2018 CBA, the District Court found that “the Union and

Brent Electric explicitly agreed to submit to

arbitration” permissive subjects of bargaining and that

the inclusion of permissive subjects of bargaining in the

CIR’s award was not contrary to public policy. App.65a,

77a-82a.

On appeal, the Tenth Circuit affirmed both District

Court rulings. App.57a. Brent Electric contended that

the language of Section 1.02(d) contained no “clear and

unmistakable waiver” of its statutory right under

Section 8(d) of the NLRA to reject permissive subjects

of bargaining. However, the Tenth Circuit declined to

apply the “clear and unmistakable waiver” standard

and instead applied a presumption of arbitrability to

find that “Section 1.02(d) unambiguously covers both

permissive and mandatory subjects of bargaining” and

thus constituted an agreement by the parties to submit

permissive subjects of bargaining to the CIR. App.32a.

Brent Electric also informed the Tenth Circuit, as

it did the District Court, of decisions of numerous

circuit courts of appeals and other courts which have

unambiguously held that arbitrators may not impose

permissive subjects of bargaining through interest arbitration. However, the Tenth Circuit declined to join

what it perceived to be “a minority of circuits that have

held that imposing permissive subjects of bargaining in

arbitration violates public policy.” App.47a. The Tenth

Circuit conceded that the Second, Fifth, and Sixth

Circuits had previously ruled consistently with Brent

Electric’s position that an arbitrator may not include

permissive subjects of bargaining in an awarded

contract. App.51a. Thus, the Tenth Circuit

acknowledged that Brent Electric’s “argument may be

colorable.” App.56a. However, the Tenth Circuit

ultimately interpreted the Second Circuit as having

since “clarified” its position in a way not contradictory

to the Tenth Circuit’s holding, and further suggested

that “the Fifth and Sixth Circuit decisions . . . rest on

dubious foundations” and could thus be ignored.

App.56a. The Tenth Circuit attempted to distinguish

other cases from various other circuit courts and

ultimately concluded that an arbitrator’s imposition of

permissive subjects of bargaining does not “run

contrary to an explicit, well-defined, and dominant

public policy, as ascertained by reference to positive

law and not from general considerations of supposed

public interest[.]” App.48a-49a, 54a-55a.

REASONS FOR GRANTING THE PETITION

It is well-settled that under Section 8(d) of the

NLRA, “each party is free to bargain or not to bargain,

and to agree or not to agree” regarding permissive

subjects of bargaining. Borg-Warner Corp., 356 U.S.

at 349. In Section 8(d), “Congress has limited the

mandate or duty to bargain to” mandatory subjects of

bargaining only. First Nat’l Maintenance Corp., 452

U.S. at 674. The right to exclude permissive subjects

of bargaining is fundamental to national labor policy,

as evidenced by this Court’s holding more than sixty

years ago that it is unlawful to insist on a permissive

subject of bargaining. 356 U.S. at 349. This remains

true even if the parties previously agreed to the

permissive subject at issue. Allied Chemical, 404 U.S.

at 187.

The Second Circuit was the first circuit court to

hold that, in light of this established and clear policy,

the imposition of permissive subjects of bargaining

through interest arbitration “deprives the parties of

their right to insist on excluding nonmandatory subjects from the collective bargaining agreement.” Local

Union No. 38, 575 F.2d at 399. An interest arbitration

provision is therefore void as applied to permissive

subjects of bargaining, and an arbitrator has no power

to impose permissive subjects in a successor agreement.

Id. at 398. As demonstrated below, at least five other

circuit courts of appeals with occasion to consider the

question have reached the same conclusion.

The Tenth Circuit declined to join the other circuit

courts, thus creating a circuit split resulting in uncer-

tainty as to the effect of interest arbitration provisions

to which employers and unions across the country are

bound. The Tenth Circuit’s Opinion depended largely

on its attempts and ability to distinguish the holdings

of other circuits based on the specific permissive subjects of bargaining at issue in each case. Though the

Tenth Circuit conceded some circuit decisions to be

directly contrary to its own holding, it erred in its

conclusion that the rule against imposing permissive

subjects of bargaining and the right to exclude permissive subjects of bargaining under Section 8(d)

lacked the requisite support of positive law.

As a result of this error, the Tenth Circuit also

erred in finding that Section 1.02(d) of the 2018 CBA

constituted an agreement between Brent Electric and

the Union to submit permissive subjects of bargaining

to the CIR. The Tenth Circuit’s holding ignores the fact

that nearly all interest arbitration provisions negotiated between multi-employer organizations and unions

contain broad language substantially the same as

Section 1.02(d) of the 2018 CBA. However, none of the

other circuits involved in the present circuit split have

found that such language can be read to include

permissive subjects of bargaining or constitute a

“clear and unmistakable” waiver of a party’s Section

8(d) right.

The implications of the Tenth Circuit’s decision

reach far beyond the parties to the underlying case, as

employers and unions across every jurisdiction are

bound by the same or similar interest arbitration

provisions.2 The Tenth Circuit’s decision creates a

2 See, e.g., Joint Brief of the National Electrical Contractors

Association and the International Brotherhood of Electrical

Workers, Amici Curiae, in Support of Appellee International

division among the circuits which only this Court can

resolve and which warrants immediate review.

The Courts of Appeals Are Squarely Divided

on the Question Presented

The circuit split over the question presented exists

between the Tenth Circuit, answering the question in

the affirmative, and the Second, Fifth, Sixth, Seventh,

Eighth, and Ninth Circuits, answering the question in

the negative.

A. The Second, Fifth, Sixth, Seventh, Eighth,

and Ninth Circuits Hold That Arbitrators

Cannot Impose Nonmandatory Subjects of

Bargaining Through Interest Arbitration

At least six circuit courts of appeals—the Second,

Fifth, Sixth, Seventh, Eighth, and Ninth—have

expressly held that permissive subjects of bargaining

in an interest arbitration award are unenforceable.

1. Second Circuit

The Second Circuit so held in NLRB v. Sheet

Metal Workers Int’l Ass’n, Local Union No. 38, 575

F.2d 394 (2nd Cir. 1978). In Local Union No. 38, the

employer and union were subject to a collective

bargaining agreement which contained an interest

arbitration provision for the resolution of “any

controversy or dispute arising out of the failure of the

parties to negotiate a renewal of” the agreement. Id. at

Brotherhood of Electrical Workers Local Union 584 at 1, No. 235108 (10th Cir. Dec. 30, 2023) (admitting that collective bargaining

agreements negotiated by NECA “throughout the United States”

contain provisions “virtually identical to the interest arbitration

provision at issue in this case.”).

396. This interest arbitration provision is substantially similar to the one at issue in this case and is

typical of those between employers and unions across

the country. In negotiations for a successor agreement,

the employer in Local Union No. 38 sought elimination

of several permissive subjects of bargaining, including

provisions requiring employer contributions to two

industry promotion funds and an interest arbitration

provision. Id. at 397. However, the union insisted on

the inclusion of the permissive subjects of bargaining

and ultimately submitted the controversy to the

National Joint Adjustment Board (the “NJAB”). Id.

The NJAB’s interest arbitration award directed the

employer “to execute a contract including the industry

fund and interest arbitration provisions.” Id.

The NLRB found that the union unlawfully insisted on permissive subjects of bargaining and sought

enforcement of its order in the Second Circuit Court of

Appeals. Id. at 396. The union argued that the

breakdown in negotiations did not occur at the point

of its insistence on permissive subjects of bargaining,

but at the later point of the employer’s refusal to

accept the NJAB’s decision. Id. at 398. However, the

court found it unnecessary to address the question,

“because we hold that an interest arbitration provision

of a collective bargaining agreement is void and

contrary to public policy, insofar as it applies to

nonmandatory subjects.” Id. at 398. In support of its

conclusion, the Second Circuit reiterated that “[i]t is

an important element of national labor policy that a

party need not bargain, and need not agree, concerning

nonmandatory issues.” Id. at 398-99 (relying on this

Court’s distinction between mandatory and permissive

subjects under Section 8(d) of the NLRA in Borg-

Warner Corp., 356 U.S. at 349). The Second Circuit

found that “[t]he importance of preserving parties’

freedom to exclude nonmandatory subjects from labor

agreements” is evident in this Court’s “‘rule that ‘by

once bargaining and agreeing on a permissive subject,

the parties . . . do not make the subject a mandatory

topic of future bargaining.’” 575 F.2d at 399 (quoting

Allied Chemical, 404 U.S. at 187). The Second Circuit

thus fairly concluded, from this Court’s explication of

the policy of Section 8(d), that “as applied to nonmandatory subjects, an interest arbitration provision is

contrary to national labor policy because it deprives

the parties of their right to insist on excluding

nonmandatory subjects from the collective bargaining

agreement.” Id. In doing so, the Second Circuit

consciously went beyond the holding of an earlier

Fifth Circuit decision, NLRB v. Columbus Printing

Pressmen & Assistants’ Union No. 252, 543 F.2d 1161

(1976), which only found one permissive subject of

bargaining invalid—a second-generation interest

arbitration clause—and “did not reach the question of

the validity of interest arbitration clauses as applied

to nonmandatory subjects in general.” 575 F.2d at

399.

2. Fifth Circuit

Some years later, the Fifth Circuit directly

addressed the question of “whether nonmandatory

provisions can be imposed after a party invokes interest

arbitration” in Sheet Metal Workers Local Union No.

54 v. E.F. Etie Sheet Metal Co., 1 F.3d 1464, 1476 (5th

Cir. 1993), cert. denied, 510 U.S. 1117 (1994). In E.F.

Etie, as in Brent Electric’s case, the employer was

subject to a collective bargaining agreement with the

union which was bargained on its behalf by a multi-

employer organization, like NECA. Id. at 1468. The

existing collective bargaining agreement contained an

NJAB interest arbitration provision similar to that in

Local Union No. 38. Id. As Brent Electric did in the

present case, the employer in E.F. Etie terminated its

relationship with the multi-employer organization

and subsequently bargained directly with the union. Id.

at 1469. Over the employer’s objection, the union

submitted contractual disputes to the NJAB, and the

NJAB issued a decision ordering the employer to

execute an agreement including permissive subjects of

bargaining—specifically,

provision

requiring

contributions to an industry promotion fund, and a

“union signatory” subcontracting clause. Id. at 147678. A second-generation interest arbitration provision

was not included in the NJAB’s arbitration award and

thus was not at issue in E.F. Etie. Id. at 1469.

The Fifth Circuit in E.F. Etie considered the

Second Circuit’s decision in Local Union No. 38,

including its reliance on this Court’s precedent, and

observed that the Eighth and Ninth Circuits likewise

agreed that “an interest arbitration provision [is] void

as contrary to public policy insofar as it applied to

nonmandatory subjects.” Id. at 1476 (citing Sheet

Metal Workers Int’l Ass’n Local 14 v. Aldrich Air Conditioning, 717 F.2d 456 (8th Cir. 1983) and American

Metal Prods., Inc. v. Sheet Metal Workers Int’l Ass’n,

Local Union No. 104, 794 F.2d 1452 (9th Cir. 1986)).

The Fifth Circuit found that the rationale of these

circuit courts was consistent with its “own more

limited precedent” in Columbus Printing Pressmen,

even though Columbus Printing Pressmen did not

address the entire category of permissive subjects of

bargaining. 1. F.3d at 1476. The Fifth Circuit explicitly

followed the Second, Eighth, and Ninth Circuits and

held “that nonmandatory provisions in this NJAB

award are not enforceable because [the union] did not

have the power to bring them before the Board by use

of the interest arbitration clause.” Id.

3. Sixth Circuit

The Sixth Circuit first addressed the question of

an arbitrator’s authority to impose permissive subjects

of bargaining in Local 58, Int’l Bhd. of Elec. Workers

v. Se. Michigan Chapter, Nat’l Elec. Contractors Ass’n,

Inc., 43 F.3d 1026 (6th Cir. 1995). In negotiations for

a successor collective bargaining agreement, NECA

and the union were unable to reach an agreement on

the establishment of a “material handlers” classification, by which NECA sought to reduce the employers’

costs for unskilled labor involved in moving materials

and tools on job sites. Id. at 1029. The existing

collective bargaining agreement contained an interest

arbitration provision negotiated by NECA and the

union similar to that which Brent Electric was bound

by in the present case:

Art. I, Sec. 2(D) provides: “Unresolved issues

in negotiations that remain on the 20th of the

month preceding the next regular meeting of

the Council on Industrial Relations, may be

submitted jointly or unilaterally by the

parties to this Agreement to the Council for

adjudication prior to the anniversary date of

the Agreement.”

Id. at 1029.3 Accordingly, the parties submitted the

dispute to the CIR, which issued a decision ordering

3 Section 1.02(d) of the 2018 CBA states in relevant part:

the parties to execute a “material handlers agreement[.]” Id. at 1030. However, the material handlers

agreement included an interest arbitration provision.

Id.

Contrary to its position in Brent Electric’s case,

the IBEW in Local 58 argued that the CIR’s decision

“improperly included two nonmandatory subjects of

bargaining, interest arbitration . . . and the scope of

the unit.” While the Sixth Circuit disagreed with the

union that the materials handler agreement changed

the scope of the unit, the court found that the interest

arbitration provision in the materials handler agreement was void because it was a permissive subject of

bargaining. Id. The Sixth Circuit held that “the law is

clear that an arbitrator may not use an interest arbitration clause as a means of self-perpetuation” because

“interest arbitration as to nonmandatory subjects is

‘void as contrary to public policy.’” Id. (citing Local

Union No. 38, 575 F.2d at 394).

The Sixth Circuit maintained this position in Sheet

Metal Workers, Local Union No. 24 v. Architectural

Metal Works, Inc., 259 F.3d 418 (6th Cir. 2001). The

employer in that case never formally joined the multiemployer organization which had negotiated a 19941997 collective bargaining agreement with the union

but did sign a letter of assent. Id. at 421. The employer

Unresolved issues or disputes arising out of the

failure to negotiate a renewal or modification of this

agreement that remain on the 20th of the month

preceding the next regular meeting of the Council on

Industrial Relations for the Electrical Contracting

Industry (CIR) may be submitted jointly or unilaterally

to the Council for adjudication.

App.197a-198a.

also voluntarily complied with the terms of the 19941997 collective bargaining agreement, which included

an interest arbitration provision. Id. at 420-22. The

union ultimately invoked the interest arbitration provision against the employer in 1998, and the NJAB

directed the employer to execute a 1997-2000 collective

bargaining agreement “that incorporates the same

terms and conditions” as the 1997-2000 agreement

negotiated by the multi-employer organization and

the union. Id. at 424.

The Sixth Circuit found that the NJAB’s award

“was not subject to judicial reassessment, at least

regarding the NJAB’s importation of the substantive

covenants and conditions governing the labor-management relationship contained” in the 1997-2000 master

collective bargaining agreement. Id. at 430. However,

the court, relying on its own Local 58 precedent and

this Court’s decision in Borg-Warner Corp, 356 U.S. at

342, found that “NJAB did not have the power” to

incorporate permissive subjects of bargaining. 259 F.3d

at 430 (emphasis in original). The court reiterated that

“[t]he law of the Sixth Circuit forbids including, in any

arbitrator-fashioned labor contract legitimated by a

contractual ‘interest arbitration’ clause, any contractual

term which does not address a legally mandatory

subject of collective bargaining[.]” Id. (emphasis in

original). The Sixth Circuit further held that a permissive subject of bargaining in an interest arbitration

award will be void even if a party fails to object to

inclusion of the permissive subject:

Thus, even in the absence of a specific

objection, any arbitrator-imposed covenant

or condition which does not directly address

a mandatory subject of collective bargaining

must be avoided as against public policy

regarding any party which did not explicitly

assent to it.

Id. at 430, n.13. This has remained the law in the Sixth

Circuit for nearly thirty years.

4. Seventh Circuit. In Sheet Metal Workers Local

Union No. 20 v. Baylor Heating & Air Conditioning,

Inc., 877 F.2d 547 (7th Cir. 1989), the Seventh Circuit

held that an arbitrator could not include a secondgeneration interest arbitration clause in a contract

award because it was a permissive subject of bargaining. In Baylor, the interest arbitration provision

invoked by the union related to “any controversy or

dispute arising out of the failure of the parties to

negotiate a renewal” of the existing agreement. Id. at

551. While the court found “no ‘well defined and domin

ant . . . explicit public policy’ that prevents employers

and unions from voluntarily agreeing to include an

interest arbitration clause[,]” the court concluded that

the district court properly found that the “[a]rbitrator

did not . . . have authority to include an interest

arbitration clause in the new contract.” Id. at 555-56

(citations omitted). “The [a]rbitrator could not impose

an interest arbitration clause, a nonmandatory bargaining item, on the parties against their will.” Id. at

556 (emphasis added).

5. Eighth Circuit

The Eighth Circuit has followed the same rule for

over forty years. In Sheet Metal Workers Int’l Ass’n

Local 14 v. Aldrich Air Conditioning, 717 F.2d 456

(8th Cir. 1983), the Eighth Circuit affirmed a district

court ruling that the inclusion of a second-generation

interest arbitration clause in an interest arbitration

award “was repugnant to national labor policy.” Id. at

456-57. The employer and union were parties to a

collective bargaining agreement with an interest arbitration provision providing that “any controversy or

dispute arising out of the failure of the parties to negotiate a renewal of this agreement” would be submitted

to the NJAB. Id. at 457. The particular dispute in that

case focused on the inclusion of a similar interest

arbitration provision in the successor collective bargaining agreement. Id. After the union invoked the interest

arbitration clause in the existing agreement, the

NJAB awarded a contract which also contained an

interest arbitration clause. Id.

On appeal, the Eighth Circuit first recognized

that “interest arbitration clauses generally are enforceable” once included in a collective bargaining agreement. 717 F.2d at 458. The court then observed that

several circuit courts had found second-generation

interest arbitration clauses unenforceable, and that

the Second Circuit specifically “adopted the position

that interest arbitration clauses are enforceable only

insofar as the disputed contract terms are mandatory

subjects of bargaining.” Id. at 458-59 (citing Local

Union No. 38, 575 F.2d at 394) (emphasis added). The

Eighth Circuit was “persuaded by the reasoning” that

“as applied to nonmandatory subjects, an interest

arbitration clause is contrary to national labor policy

because it deprives the parties of their right to exclude

nonmandatory subjects from bargaining.” Id. at 459

(emphasis added).

6. Ninth Circuit

In Hotel & Restaurant Employees v. Williams, 752

F.2d 1476 (9th Cir. 1985), the employer appealed the

district court’s order compelling arbitration pursuant

to an interest arbitration provision in an expired

collective bargaining agreement. Id. at 1477. The Ninth

Circuit rejected the employer’s argument that an

interest arbitration clause does not survive the

expiration of the collective bargaining agreement. Id.

at 1478. The court also rejected the employer’s

argument that to give effect to the interest arbitration

clause at issue would “bind them to successive contracts

containing the same provision.” Id. at 1479. As the

court observed, the interest arbitration clause in that

case applied only to the subjects of wages and fringe

benefits. Id. In accord with the Eighth Circuit, the

Ninth Circuit held that “[e]ven if [the interest arbitration provision] provided otherwise, the provision

would be invalid because arbitration can only be

required for mandatory subjects of bargaining, and an

interest arbitration clause is a non-mandatory

subject.” Id. (citing Aldrich Air Conditioning, 717 F.2d

at 458-59) (emphasis added). Thus, the Ninth Circuit

reasoned from the principle that interest arbitration

is not enforceable as to permissive subjects of bargaining, to the conclusion that a second-generation interest

arbitration clause would be unenforceable because it

is a permissive subject of bargaining. Id.

The Ninth Circuit later relied on the above-quoted

language of its Williams decision in American Metal

Prods, Inc. v. Sheet Metal Workers Int’l Ass’n, Local

Union No. 104, 794 F.2d 1452 (9th Cir. 1986), holding

that an interest arbitration award by the NJAB

was void as to the permissive subject of bargaining

contained therein—a second-generation interest arbitration provision. 794 F.2d at 1456-57. The court rejected

the union’s argument that Williams was merely dicta

and that it was contrary to an earlier decision of the

Ninth Circuit. Id. at 1457. Like the Sixth Circuit in

Architectural Metal Works, the Ninth Circuit found

unpersuasive the union’s argument that the employer’s

failure to object to the inclusion of the provision in the

NJAB award precluded its objection on appeal, as

inclusion of the provision “in a successor agreement

requires the consent of both parties, not merely the

absence of objection.” Id.

B. The Tenth Circuit Holds That Arbitrators

Can Impose Nonmandatory Subjects of

Bargaining Through Interest Arbitration

Directly contradicting the Second, Fifth, Sixth,

Seventh, Eighth, and Ninth Circuit holdings described

above, the Tenth Circuit in this case held that “[i]mposing permissive subjects of bargaining in interest

arbitration does not violate public policy.” App.47a

(emphasis added). Considering only the Second, Fifth

and Sixth Circuits as potentially contrary to its

decision, the court found that “only a minority of

circuits. . . have held that imposing permissive subjects

of bargaining in arbitration violates public policy.”

App.47a. The Tenth Circuit then dismissed the Second

Circuit’s decision in Local Union No. 38 as inapplicable,

and further opined that the Fifth and Sixth Circuit

precedents “rest on dubious foundations” and, along

with the Local Union No. 38, “lack the rigorous inquiry

into positive law” required by this Court in Eastern

Associated Coal Corp. v. Mine Workers, 531 U.S. 57,

63 (2000). App.52a, 55a-56a. While it acknowledged

that many circuits reject the inclusion of one type of

permissive subject of bargaining, a second-generation

interest arbitration provision, the Tenth Circuit

declined to find that an arbitrator could not impose

such a provision in the Tenth Circuit. App.49a-50a.

Thus, the Tenth Circuit’s holding placed no limits on

an arbitrator’s power to impose permissive subjects of

bargaining through an interest arbitration award,

while at least six other circuits hold that an arbitrator

has no such power as a matter of well-defined public

policy. Had Brent Electric’s appeal been considered by

the Second, Fifth, Sixth, Seventh, Eighth, or Ninth

Circuit, all permissive subjects of bargaining imposed

by the CIR in the 2021 CBA would have been

declared void.

II. The Tenth Circuit’s Holding Is In Error

A. The Tenth Circuit Misinterpreted Decisions of the Sixth, Eighth, and Ninth

Circuits as Applying Only to SecondGeneration Interest Arbitration Provisions

The Tenth Circuit incorrectly concluded that

several circuit cases relied upon by Brent Electric were

“inapposite” in such a way as to diminish the extent of

the circuit split it has created. App.51a. The Tenth

Circuit failed to follow the line of reasoning employed

by the circuit courts in the cases it deemed “inapposite.” For example, the Tenth Circuit found the

Sixth Circuit’s Local 58 decision to be among those that

only “condemn imposing second-generation interestarbitration clauses specifically, and do not speak to

the imposition of permissive subjects of bargaining in

general.” App.51a. However, the Sixth Circuit in Local

58 plainly held that as a consequence of the rule that

permissive subjects of bargaining in general cannot be

imposed by an arbitrator, a second-generation interest

arbitration clause could not be imposed:

Moreover, interest arbitration as to nonmandatory subjects is “void as contrary to public

policy.” Consequently, the law is clear that an

arbitrator may not use an interest arbitration

clause as a means of self-perpetuation[.]

Local 58, 43 F.3d at 1032 (citation omitted) (emphasis

added).

The Tenth Circuit likewise wrongly concluded

that Aldrich Air Conditioning and American Metal

Products “predominantly reflect the concern that selfperpetuating interest-arbitration clauses not be

imposed in arbitration over a party’s objection” and

thus do not support the conclusion that permissive

subjects of bargaining as a category cannot be imposed

through interest arbitration. App.54a. As noted above,

the Eighth Circuit in Aldrich Air Conditioning found

that a second-generation interest arbitration provision

was unlawfully imposed by an arbitrator on the basis

of the Second Circuit’s persuasive reasoning “that, as

applied to nonmandatory subjects, an interest arbitration clause is contrary to national labor policy[.]” 717

F.2d at 459 (citing Local Union No. 38, 575 F.2d at

399). Likewise, the Ninth Circuit in American Metal

Products rightly concluded that a second-generation

interest arbitration clause was improperly imposed

based on its Williams precedent that “arbitration can

only be required for mandatory bargaining subjects,

and an interest arbitration clause is a non-mandatory

subject.” 794 F.2d at 1457 (quoting Williams, 752 F.2d

at 1479).

The Tenth Circuit’s misunderstanding on this

point permeates its Opinion, as is evident in its framing

of Brent Electric’s argument as a defective deduction:

Brent seems to argue that because imposing

a self-perpetuating interest-arbitration clause

in arbitration violates public policy, and selfperpetuating interest-arbitration clauses are

permissive subjects of bargaining, then the

imposition of permissive subjects of

bargaining violates public policy. This logical

fallacy is easily dismissed.

App.51a. This is an incorrect statement of the position

maintained by Brent Electric. Rather, Brent Electric’s

position is aligned with the Second Circuit’s

formulation of the widely-accepted rule, which it

reiterated in 2002:

An interest arbitration clause is void as

contrary to public policy to the extent that

it applies to nonmandatory subjects of

bargaining, i.e., subjects other than wages,

hours and other terms and conditions of

employment; this includes the insertion of a

successor interest arbitration clause in a

new agreement.

Mulvaney Mech., Inc. v. Sheet Metal Workers Int’l Ass’n,

Local 38, 288 F.3d 491, 505 (2d Cir. 2002) (emphasis

added), vacated on other grounds, 538 U.S. 918 (2003),

adhered to, 351 F.3d 43, 45 (2d Cir. 2003):

B. The Tenth Circuit’s Reliance on CocaCola Bottling Co. to Distinguish Local

Union No. 38 is Misguided

The Tenth Circuit concluded that “the Second

Circuit’s caselaw does not help Brent” in light of a

perceived limitation of the Second Circuit’s Local

Union No. 38 holding in the subsequent case of Coca-

Cola Bottling Co. of New York v. Soft Drink & Brewery

Workers Union, Loc. 812, Int’l Bhd. of Teamsters, 39

F.3d 408 (2d Cir. 1994). The Tenth Circuit found that

although Local Union No. 38 “ostensibly supports

Brent’s position, the Second Circuit has since clarified

that Local Union No. 38’s rule” that an interest arbitration provision is void as to nonmandatory subjects

of bargaining “applies only when there is no preexisting contract.” App.52a. It is readily apparent,

however, that the Tenth Circuit failed to properly

construe Coca-Cola, as an interest arbitration provision

(for resolution of disputes over the formation of a new

contract) can only exist as a provision of a pre-existing

contract. The Tenth Circuit’s misreading of Coca-Cola

is also plainly demonstrated by the Second Circuit’s

later holding in Mulvaney, quoted above. See 288 F.3d

at 505.

In Coca-Cola, the district court ordered the

employer to participate in arbitration, pursuant to a

general arbitration provision in the existing collective

bargaining agreement, over the volume of product the

employer was obligated to provide to its routesalesmen under an incentive compensation provision

in the existing agreement. 39 F.3d at 409. The employer

argued that because the amount of product to be

delivered to route-salesmen was a permissive subject

of bargaining, the issue was not arbitrable. Id. at 409410. The Second Circuit correctly recognized the

employer’s misguided reliance on Local Union No. 38

not for the proposition that an arbitrator cannot impose

permissive subjects of bargaining in a new contract

through interest arbitration, but for the mistaken

proposition that an arbitrator cannot decide a dispute

over the meaning of a permissive subject of bargaining

already agreed to in the existing contract:

[Local Union No. 38] involved a clause

making arbitrable disputes between the

parties concerning formation of a new contract. As to such a clause (referred to as an

‘interest arbitration provision[],’ we said that

it covered only disputes as to which bargaining was mandatory. We reasoned that

an ‘interest arbitration provision’ would be

void as contrary to public policy to the extent

that it applied to nonmandatory bargaining

subjects because a contrary ruling would

impair the parties’ freedom to exclude nonmandatory subjects from bargaining.

That decision, however, did not place a

similar limit on the arbitrability of disputes

arising under an existing contract. . . . If the

parties elect to include in their agreement a

provision governing a matter not subject to

mandatory bargaining and also adopt a broad

arbitration clause, nothing in [Local Union

No. 38], labor law, or the Arbitration Act precludes arbitration of a dispute concerning the

meaning or application of that provision.

Coca-Cola, 39 F.3d at 410 (internal citations omitted).

Thus, the Second Circuit in Coca-Cola simply held

that an arbitration provision could be invoked for

determination of “the meaning or application” of an

agreed provision in the existing contract. Coca-Cola

did not limit the applicability of Local Union No. 38,

but rather affirmed the central holding of Local Union

No. 38 that an interest arbitration provision cannot be

used by an arbitrator to impose permissive subjects of

bargaining in a new contract. This is the same

distinction drawn by the Sixth Circuit in Local 58

between interest arbitration and “grievance arbitration”:

Interest arbitration, unlike grievance arbitration, focuses on what the terms of a new

agreement should be, rather than the meaning of the terms of the old agreement. Thus,

the arbitrator [in interest arbitration] is not

acting as a judicial officer, construing the

terms of an existing agreement and applying

them to a particular set of facts. Rather, he is

acting as a legislator, fashioning new contractual obligations.

Local 58, 43 F.3d at 1030.

C. The Rule Against Imposing Permissive

Subjects of Bargaining Through Interest

Arbitration is Rooted in Explicit, WellDefined, and Dominant Public Policy

The Tenth Circuit erred in holding that the imposition of permissive subjects of bargaining through

interest arbitration did not “run contrary to an

explicit, well-defined, and dominant public policy, as

ascertained by reference to positive law and not from

general considerations of supposed public interests.”

App.48a, 55a (quoting Eastern Associated Coal Corp.,

531 U.S. at 63). The term “positive law” as used by

this Court is synonymous with the phrase “the laws

and legal precedents[.]” See, e.g., W.R. Grace & Co. v.

Rubber Workers, 461 U.S. 757, 766 (1983) (public policy

must be “well defined and dominant” as “ascertained

‘by reference to the laws and legal precedents and not

from general considerations of supposed public

interests.’” (quoting Muschany v. United States, 324

U.S. 49, 66 (1945))); see also Misco, 484 U.S. at 43. The

fundamental public policy at issue here originates not

from general considerations of public interest, but from

the statutory language of Section 8(d) as interpreted

by this Court in cases including Borg-Warner Corp.

and Allied Chemical, establishing the importance of a

party’s right to refuse permissive subjects of

bargaining in accordance with the congressional intent

of the NLRA. In consideration of this positive law, at

least six circuit courts of appeals have found that the

imposition of permissive subjects of bargaining

violates explicit, well-defined, and dominant public

policy.

Legal precedent expressly forbidding the imposition of permissive subjects of bargaining through

interest arbitration has now existed for nearly half a

century. In the Tenth Circuit’s view, this precedent

“collapses under any real scrutiny” upon removing “any

discussion of self-perpetuating interest arbitration

provisions.” App.55a. However, this is not the case, as

demonstrated at length above. Rather, the holdings of

all of the circuit court decisions presented herein, to

the extent a second-generation interest arbitration

provision was at issue, rest on the fact that the selfperpetuating interest arbitration provisions undisputably fall within the larger category of permissive subjects

of bargaining, which cannot be imposed through

interest arbitration. The Tenth Circuit’s conclusion

that “an arbitral award imposing permissive subjects

of bargaining in a CBA” does not “run contrary to an

explicit, well-defined, and dominant public policy, as

ascertained by reference to positive law” is therefore

clearly mistaken and fails to appreciate the significant

precedent to the contrary.

D. The Interest Arbitration Provision of the

2018 CBA Did Not Include Nonmandatory

Subjects of Bargaining

Denying any public policy concern, the Tenth

Circuit also found that Brent Electric had agreed to

submit permissive subjects of bargaining to the CIR

through the broad language of Section 1.02(d) of the

2018 CBA. App.32a. According to the Tenth Circuit,

“[t]he key language of this clause is in the first

sentence: ‘Unresolved issues or disputes arising out of

the failure to negotiate a renewal or modification of

this agreement . . . . ’” App.28a, 197a-198a. However, as

Brent Electric argued below, this ignores the holding

of this Court that a contractual waiver of a statutorily

protected right must be “clear and unmistakable.” See

Metro. Edison Co. v. NLRB, 460 U.S. 693, 708 (1983)

(holding that the Court “will not infer from a general

contractual provision that the parties intended to

waive a statutorily protected right unless the

undertaking is ‘explicitly stated’” (quoting Mastro

Plastics Corp. v. NLRB, 350 U.S. 270, 283 (1956))). To

construe the general language of Section 1.02(d) of the

2018 CBA as a waiver of the “right to insist on

excluding nonmandatory subjects of bargaining from

the collective bargaining agreement” protected by

Section 8(d) of the NLRA would be contrary to the

Court’s established rule that such waiver must be

explicitly stated. Local Union No. 38, 575 F.2d at 399;

Metro. Edison, 460 U.S. at 708.

Moreover, the Tenth Circuit’s holding ignores that

the language of the interest arbitration provision

here, Section 1.02(d), is substantially the same as the

language considered by the other circuit courts, none

of which found that permissive subjects of bargaining

were within the scope of the interest arbitration

language. See, e.g., Local 58, 43 F.3d at 1029 (“Art. I,

Sec. 2(D) provides: ‘Unresolved issues in negotiations

that remain on the 20th of the month preceding the

next regular meeting of the Council on Industrial

Relations, may be submitted jointly or unilaterally.

. . .’”); Local Union No. 38, 575 F.2d at 396 (involving an

interest arbitration provision which allowed submission

to the NJAB “any controversy or dispute arising out of

the failure of the parties to negotiate a renewal of this

agreement[.]”); Aldrich Air Conditioning, 717 F.2d at

457 (same); Baylor, 877 F.2d at 551 (same). The Tenth

Circuit’s conclusion that Brent Electric contractually

agreed to submit permissive subjects of bargaining

without a clear and unmistakable waiver of its

statutorily protected right is again irreconcilable with

the precedent of the other circuits discussed herein

and of this Court.

III. The Question Presented Requires Immediate

Review and Only This Court Can Resolve the

Circuit Split

The Tenth Circuit directly acknowledged that its

Opinion creates a split among the circuit courts of

appeal by declining “Brent’s invitation to join” the

circuits which have answered the question presented

in the negative. App.56a. Any subsequent rulings by

circuit courts which have not already addressed the

issue will only cause the present conflict and split to

become even more deeply entrenched. As a result of

the disagreement among the circuits as to an arbitrator’s authority to impose permissive subjects of

bargaining, employers across the country will now find

they have fewer or more rights under Section 8(d) of

the NLRA than other employers in relation to their

interest arbitration provisions depending on which

circuit court has jurisdiction over the matter. The

resulting uncertainty and instability is contrary to the

purpose of Section 8(d) and the NLRA as a whole.

As NECA and the International Brotherhood of

Electrical Workers (“IBEW”) stated in their joint amici

curiae brief to the Tenth Circuit, “[l]ocal chapters

affiliated with NECA and local unions affiliated with

the IBEW engage in collective bargaining and negotiate

collective bargaining agreements throughout the United

States. Almost all of those collective bargaining agreements contain interest arbitration provisions virtually

identical to the interest arbitration provision at issue in

this case.”4 Thus, at present, an arbitrator may impose

permissive subjects of bargaining on an employer in

the Tenth Circuit pursuant to a NECA-IBEW interest

arbitration provision, but may not do so in the Sixth

Circuit. This circuit split creates uncertainty and

results in inconsistent outcomes based merely on where

the employer or union happen to fall from a jurisdictional perspective.

NECA and the IBEW are not the only multiemployer organization and union which have negotiated and bound employers and local unions to interest

arbitration provisions like the one at issue in this

case. The question presented represents a pressing

issue affecting labor relations across the United States

and is one which the circuit courts of appeals are not

likely to resolve among themselves. This case presents

4 Joint Brief of NECA and IBEW, supra note 2, at 1.

the Court with an ideal vehicle to resolve the circuit

split and clarify that the power of an interest arbitrator

is limited by the right of parties under Section 8(d) of

the NLRA to refuse nonmandatory subjects of bargaining.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Mark E. Hunt

Counsel of Record

Michael D. Oesterle

Mason C. Rush

Jennifer Sherman Schnall

KING & BALLOW

26 Century Boulevard

Suite NT 700

Nashville, TN 37214

(615) 259-3456

mhunt@kingballow.com

Counsel for Petitioner

October 31, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.