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

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

APPENDIX TABLE OF CONTENTS (Cont.)

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

App.1a

OPINION, U.S. COURT OF APPEALS

FOR THE TENTH CIRCUIT

(AUGUST 6, 2024)

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

________________________

BRENT ELECTRIC COMPANY, INC.,

Plaintiff Counter

Defendant-Appellant,

v.

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS LOCAL UNION NO. 584,

Defendant Counter

Plaintiff -Appellee.

________________________

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS; NATIONAL

ELECTRICAL CONTRACTORS ASSOCIATION,

Amici Curiae.

________________________

No. 23-5108

Appeal from the United States District Court

for the Northern District of Oklahoma

(D.C. No. 4:21-CV-00246-CRK-CDL)

App.2a

Before: PHILLIPS, KELLY, and MORITZ,

Circuit Judges.

PHILLIPS, Circuit Judge.

Brent Electric Company appeals the district court’s

enforcement of an arbitration award that imposed on

Brent a renewed three-year collective-bargaining agreement (CBA) with Local Union No. 584 of the International Brotherhood of Electrical Workers (the Union).

Brent objects that the imposed CBA contains permissive

subjects of bargaining, arguing that it did not clearly

and unmistakably waive its purported statutory right

to refuse the imposition of permissive subjects, and

that such an award violates public policy.

This dispute requires us to consider two separate

lines of cases carrying ostensibly contradictory standards: those applying the presumption of arbitrability

absent forceful evidence of an intent not to arbitrate;

and those requiring a party’s clear and unmistakable

waiver of a statutory right.

We reject Brent’s invitation to confuse the two

and agree with the Union that, by agreeing to the

interest-arbitration clause in the 2018 CBA, Brent

consented to submit both permissive and mandatory

subjects of bargaining to arbitration if the parties

could not agree on the terms of a new CBA. We

therefore affirm the district court and hold Brent to

its contractual obligations.1

1 We grant the motion submitted by the National Electrical

Contractors Association and the International Brotherhood of

Electrical Workers for leave to file an amicus brief, which this

court provisionally granted on December 29, 2023.

App.3a

BACKGROUND

I.

Factual Background

Brent and the Union have a long-standing relationship dating back to 1996, when Brent signed a

Letter of Assent authorizing the Eastern Oklahoma

Chapter of the National Electrical Contractors Association (NECA) to negotiate with the Union on Brent’s

behalf. During the times relevant to this dispute, the

Union’s relationship with Brent was enabled by

Section 8(f) of the Labor-Management Relations Act,

which exempts employers in the building and construction industry from the general prohibition on

making an agreement with a union before a union has

majority-employee support.2 See 29 U.S.C. §§ 158(f),

159(a); Sheet Metal Workers’ Int’l Ass’n, Loc. Union

No. 2 v. McElroy’s, Inc. (McElroy’s), 500 F.3d 1093,

1097 (10th Cir. 2007) (“Section 8(f) thus creates an

exception to the NLRA’s general rule prohibiting a

union and an employer from signing a collective

bargaining agreement recognizing the union as the

exclusive bargaining representative before a majority

of employees have authorized the union to represent

their interests.”).

During early 2018, NECA and the Union negotiated and agreed to the CBA at issue, which was effective from June 1, 2018, through May 31, 2021 (the 2018

CBA). Relevant to this appeal, the 2018 CBA included

2 In supplemental briefing, the Union informed us that “[o]n September 23, 2021, the NLRB certified Local 584 as the exclusive

collective bargaining representative selected by a majority of

Brent’s bargaining unit employees” and so “[t]he parties’ bargaining relationship now is one governed by Section 9(a) of the Labor

Management Relations Act (LMRA).” Appellee Suppl. Br. at 5.

App.4a

an interest-arbitration clause, Section 1.02(d), which

was the same as the interest-arbitration clause

included in the 2015 CBA:

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 [CIR] for adjudication.

Such unresolved issues or disputes shall be

submitted no later than the next regular

meeting of the [CIR] following the expiration

date of this agreement or any subsequent

anniversary date. The [CIR’s] decisions shall

be final and binding.

App. vol. I, at 48.

The negotiations also resulted in a memorandum

of understanding (MOU) between the Union, NECA,

and another electrical contractor, which detailed Brent’s

obligations to contribute to the Union pension plan.

The 2018 CBA incorporated the MOU as Addendum

Four.3 See App. vol. I, at 46 (listing Addendum Four

in the 2018 CBA’s table of contents); Brent Elec. Co.,

Inc. v. Int’l Bhd. of Elec. Workers Loc. Union No. 584,

No. 21-CV-00246, 2022 WL 16973249, at *5 n.9 (N.D.

Okla. Nov. 16, 2022) (“The provisions at Addendum

Four were no less a part of the 2018 CBA, despite

being an addendum. . . . ”).

3 Brent disputes that the 2018 CBA incorporated Addendum Four.

App.5a

In September 2020, Brent wrote to NECA and

the Union to provide notice of its termination and

revocation of the Letter of Assent, including its

authorization for NECA to act as its bargaining

representative for matters related to the CBA. Two

months later, Brent provided notice to NECA and the

Union of its intent to stop making contributions to the

Union pension fund under the MOU.

In February 2021, the Union responded by

submitting a grievance to NECA’s Labor Management

Committee (LMC), claiming that Brent had violated

Addendum Four of the CBA. The LMC agreed with

the Union, ruling that Brent was “in violation of

Addendum 4 of the CBA” and asking Brent to “correct

December contribution monies . . . and any subsequent

payments going forward.” App. vol. I, at 114. In a stillpending related action, the Union filed a complaint in the

Northern District of Oklahoma against Brent, asking

the court to confirm and enforce the LMC decision,

and Brent filed counterclaims.

Also in February 2021, Brent wrote to the Union,

expressing its purported “desire[] to reach a prompt

successor Agreement with the Union.” App. vol. II, at

118. But in the letter, Brent listed twenty-one “Articles/

Sections from the expiring” 2018 CBA that it asserted

were “permissive subjects of bargaining under established federal labor law” and thus beyond the Union’s

authority to “lawfully insist” be included in the 2021

CBA. Id. at 119. It also asserted that those subjects

could not be imposed through interest arbitration.

Among the objected-to sections were Section 1.02(c),

App.6a

the evergreen clause,4 and Section 1.02(d), the interestarbitration clause. On that basis, Brent omitted the

sections from its proposed agreement. Brent also

listed three sections it asserted were “illegal subjects

of bargaining,” and it likewise omitted them from its

proposed CBA. Id. Brent did not assert that the

interest-arbitration clause was an illegal subject of

bargaining.

On April 9, 2021, the Union sent a letter to

Brent stating its intent to submit to the arbitrator, the

Council on Industrial Relations for the Electrical Contracting Industry (CIR), “unresolved issues that

remain between the parties” in accordance with the

interest-arbitration clause in Section 1.02(d) of the

2018 CBA. Id. at 144. This was a unilateral submission

and made over Brent’s objection.

In May 2021, before the 2018 CBA expired, the

CIR issued its preliminary decision, which included a

new CBA. The CIR directed the parties “to sign and

implement immediately the inside agreement which

is attached hereto and hereby made a part of this decision.” Id. at 195. Brent wrote to the CIR, objecting to

the inclusion of what it asserted were permissive subjects of bargaining, including the evergreen clause. It

also objected to the inclusion of the MOU on pension

contributions as Addendum Four. Brent did not object

to the 2021 CBA’s new arbitration provision.

The next month, the CIR issued a second decision,

including a revised version of the CBA, which corrected

4 The evergreen clause provides that “[t]he existing provisions of

the Agreement, including this Article, shall remain in full force

and effect until a conclusion is reached in the matter of proposed

changes.” App. vol. I, at 48.

App.7a

only “a clerical error” and provided Brent no relief for

“the numerous errors and omissions” Brent had raised

in its May objection letter. App. vol. I, at 21. The CIR

responded to Brent’s letter, “not[ing] that Brent

Electric’s letter of May 30, 2021, requests the deletion

of several other provisions, which that letter describes

as permissive subjects of bargaining.” App. vol. III, at

211. It explained: “Those provisions have not been

deleted for two reasons: 1) In each case, they are

among the ‘[u]nresolved issues or disputes’ that your

company explicitly agreed to submit to arbitration,

and 2) the CIR does not agree that those provisions

are permissive subjects of bargaining.” Id. The CIR

then imposed its award—the 2021 CBA.

The 2021 CBA contained a different interestarbitration provision than the 2018 CBA. The 2021

version required mutual agreement before any future

interest arbitration could be submitted to the CIR and

removed the unilateral provision included in the 2018

CBA’s interest-arbitration clause:

(d). In the event that either party, or an

Employer withdrawing representation from

the Chapter or not represented by the

Chapter, has given a timely notice of proposed

changes and an agreement has not been

reached by the expiration date or by any subsequent anniversary date to renew, modify,

or extend this Agreement, or to submit the

unresolved issues to the [CIR], either party

or such an Employer, may serve the other a

ten (10) day written notice terminating this

Agreement. The terms and conditions of this

Agreement shall remain in full force and

App.8a

effect until the expiration of the ten (10) day

period.

(e). By mutual agreement only, the Chapter,

or an Employer withdrawing representation

from the Chapter or not represented by the

Chapter, may jointly, with the Union, submit

the unresolved issues to the [CIR] for adjudication. Such unresolved issues shall be

submitted no later than the next regular

meeting of the [CIR] following the expiration

date of this Agreement or any subsequent

anniversary date. The [CIR’s] decisions shall

be final and binding.

App. vol. IV, at 272–73 (emphasis added).

II. Procedural Background

In June 2021, Brent filed a complaint in federal

district court seeking to vacate and set aside the CIR

award. In response to Brent’s July 2021 amended

complaint, the Union counterclaimed to enforce the

award. Besides requesting confirmation of the award,

the Union sought an audit of Brent’s payroll records,

as well as an award for the Union’s attorneys’ fees and

costs.

On November 16, 2022, the district court granted

the Union’s motion to dismiss Brent’s amended complaint. See Brent Electric, 2022 WL 16973249, at *6.

The parties then cross-moved for summary judgment

on the Union’s counterclaim for enforcement. The district court partially granted the Union’s motion for

summary judgment on its counterclaim for enforcement: it confirmed the CIR award but denied the

Union’s requests for an audit of Brent’s business

App.9a

records and an award of attorneys’ fees. Brent Elec.

Co., Inc. v. Int’l Bhd. of Elec. Workers Loc. Union No.

584, No. 21-CV-00246, 2023 WL 5750484, at *11 (N.D.

Okla. Sept. 6, 2023). But it ordered Brent to preserve

its “payroll-related business records for work performed from June 1, 2021, through the pendency of

any appeal taken from this Court’s decision.” Id. The

district court denied Brent’s motion for summary

judgment.

On October 4, 2023, Brent filed a notice of appeal

from both the dismissal of its complaint and the denial

of its motion for summary judgment. Brent moved to

stay enforcement of the 2021 CBA pending this

appeal, which the district court denied. See Brent

Elec. Co., Inc. v. Int’l Bhd. of Elec. Workers Loc. Union

No. 584, No. 21-CV-00246, 2024 WL 66039, at *1, *7

(N.D. Okla. Jan. 5, 2024). The district court later

reaffirmed its decision and reasoned that any harm

Brent might suffer from the imposition of the 2021

CBA was not irreparable and that the public interest

favored denial of a stay. Id. at *5–6. Brent then moved

to stay enforcement of the award in this court under

Federal Rule of Appellate Procedure 8(a)(2), which we

also denied.

We exercise jurisdiction over the district court’s

disposition of the motion to dismiss and the crossmotions for summary judgment under 28 U.S.C. § 1291.

DISCUSSION

We review de novo “the district court’s dismissal

for failure to state a claim and the district court’s

grant of summary judgment, applying the same legal

standard as the district court.” Elliott Indus. Ltd.

P’ship v. BP Am. Prod. Co., 407 F.3d 1091, 1106–07

App.10a

(10th Cir. 2005); see also United Steel, Paper &

Forestry, Rubber, Mnfg., Energy, Allied Indus. & Serv.

Workers Int’l Union Loc. 13–857 v. Phillips 66 Co.

(Phillips 66), 839 F.3d 1198, 1204 (10th Cir. 2016)

(“We review de novo the grant of summary judgment,

including where the district court has ordered arbitration. . . . ”).

Brent appeals the district court’s dismissal of its

complaint and its grant of the Union’s motion for summary judgment on its counterclaim to enforce the CIR

award. As a preliminary matter, we reject the Union’s

argument that this case might be moot given Brent’s

compliance with the 2021 CBA.5 We next review the

legal framework necessary to put Brent’s arguments

in context. Turning to the merits, we conclude that the

presumption of arbitrability applies to Brent’s dispute,

and reject Brent’s arguments that it has a statutory

right to avoid having permissive subjects of bargaining

imposed in interest arbitration and that such an

imposition violates public policy or the Federal Arbitration Act.

I.

Brent’s appeal is not moot.

Article III of the Constitution limits our exercise

of “judicial Power” to “Cases” and “Controversies.” U.S.

Const. art. III, § 2. The doctrine of constitutional mootness means that “the suit must present a real and substantial controversy with respect to which relief may

be fashioned” and relevant here, “the controversy must

remain alive at the . . . appellate stages of the litigation.” Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir.

5 The 2021 CBA was set to expire at the end of May 2024, shortly

after we heard oral argument in this case.

App.11a

2011) (quoting Fletcher v. United States, 116 F.3d

1315, 1321 (10th Cir. 1997)). Constitutional mootness

is therefore “grounded in the requirement that any

case or dispute that is presented to a federal court be

definite, concrete, and amenable to specific relief.” Id.

(cleaned up). “The crucial question is whether granting

a present determination of the issues offered will have

some effect in the real world.” Rio Grande Silvery

Minnow v. Bureau of Reclamation, 601 F.3d 1096,

1110 (10th Cir. 2010) (citation omitted).

Voluntary cessation of challenged activity may

moot litigation “if two conditions are satisfied: (1) it

can be said with assurance that there is no reasonable

expectation that the alleged violation will recur, and

(2) interim events have completely and irrevocably

eradicated the effects of the alleged violation.” Id. at

1115 (cleaned up). The party asserting mootness bears

the “heavy burden of persuading the court that the

challenged conduct cannot reasonably be expected to

start up again.” Id. at 1116 (cleaned up).

If a party requests only declaratory or injunctive

relief, courts may also dismiss a case under the

“prudential-mootness doctrine.” Id. at 1121; see id. at

1122 (“This doctrine generally applies only to requests

for injunctive or declaratory relief.” (citations omitted)).

Courts may dismiss a case because of prudential

mootness if it “is so attenuated that considerations of

prudence and comity for coordinate branches of government counsel the court to stay its hand, and to

withhold relief it has the power to grant.” Id. at 1121

(quoting Fletcher, 116 F.3d at 1321 (emphasis omitted)).

Prudential mootness thus “arises out of the court’s

general discretion in formulating prospective equitable

remedies” and is particularly appropriate when a

App.12a

party requests injunctive relief against the government.

Bldg. & Const. Dep’t v. Rockwell Int’l Corp., 7 F.3d

1487, 1492 (10th Cir. 1993). Under both the constitutional-and prudential-mootness doctrines, “the central

inquiry is essentially the same: have circumstances

changed since the beginning of the litigation that

forestall any occasion for meaningful relief.” Rio

Grande Silvery Minnow, 601 F.3d at 1122 (quoting S.

Utah Wilderness All. v. Smith, 110 F.3d 724, 727 (10th

Cir. 1997)).

Though the Union’s motion to cancel oral argument

on mootness grounds was untimely, we still must

consider the Union’s arguments because Article III

mootness is a jurisdictional issue.6 See Rivera v.

6 In April 2024, the Union moved to cancel oral argument because it wanted to “bring to the Court’s attention this matter’s

potential, imminent mootness.” Mot. to Cancel at 2. It argued

that “potential mootness arises from the approaching May 31,

2024 expiration date of the collective bargaining agreement at

issue in this matter” and from Brent’s “apparent compliance with

that agreement,” which the Union noted in its opposition to

Brent’s motion to stay enforcement of the award. Id. But in the

Union’s response to the motion to stay, the Union noted only that

“Brent has been complying with most, if not all, of the 2021 CBA’s

terms.” Mot. to Stay Resp. at 17. If the Union believed in January

when it responded to Brent’s motion to stay that Brent had

complied with all the 2021 CBA’s terms, it should have moved to

cancel due to mootness in January and not waited until April,

soon before oral argument. Indeed, under Local Rule 27.3, “a

motion for summary disposition because of . . . mootness,” 10th

Cir. R. 27.3(A)(1)(b), must be filed “within 14 days after the

notice of appeal is filed, unless good cause is shown,” 10th Cir. R.

27.3(A)(3)(a). The Union has known the date of the 2021 CBA’s

expiration since early 2021. It therefore lacks good cause in

delaying its motion beyond the time that it discovered Brent’s

compliance with the 2021 CBA, whether that was in January

2024 or earlier.

App.13a

Bank of Am., N.A., 993 F.3d 1046, 1049 n.3 (8th Cir.

2021) (“[M]ootness goes to the very heart of Article III

jurisdiction, and any party can raise it at any time.

Indeed, it would be the Court’s duty to raise and

decide the issue on its own motion, if facts suggesting

mootness should come to its attention. . . . ” (quoting

In re Smith, 921 F.2d 136, 138 (8th Cir. 1990)). Because “mootness, if it exists, would destroy our jurisdiction, we should address this issue first.” In re Smith,

921 F.2d at 138.

A. Brent did not voluntarily comply with the

2021 CBA, and so its compliance does not

moot this appeal.

The Union argues that Brent’s compliance with

the 2021 CBA moots this appeal. “The test of whether

an appeal is moot is whether the party acted voluntarily

or because of the actual or implied compulsion of judicial power.” Out of Line Sports, Inc. v. Rollerblade, Inc.,

213 F.3d 500, 502 (10th Cir. 2000). “Showing that the

party’s compliance was a consciously performed voluntary act requires more than simple compliance with a

court order or decree.” Id. (citation omitted). In Out of

Line Sports, a party complied voluntarily with an

order enforcing a lien by jointly signing a motion to

release the funds, by not moving to stay the judgment,

and by not explicitly reserving its right to appeal. Id.

In its denial of Brent’s motion to stay, the district

court noted that “[t]he circumstances of this case are

dissimilar from those cases where compliance with a

judgment moots an appeal.” Brent Electric, 2024 WL

66039, at *5 n.3 (citing Out of Line Sports, 213 F.3d at

503). We agree. Unlike the compliant party in Out of

Line Sports, Brent filed a motion to stay enforcement

App.14a

of the CIR award in district court, and when that

motion was denied, it filed a motion to stay in this

court. Brent has vigorously preserved its objections to

the 2021 CBA at all stages of the litigation. And,

unlike the party in Out of Line Sports, which had

jointly moved for the release of funds, Brent refused

to sign the 2021 CBA until the district court forced it

to do so, fearing that signing it might indicate voluntary compliance. Brent’s filing of a complaint in district court to vacate the CIR award, its later motion to

stay enforcement, and its appeal suffice to demonstrate

that any compliance was involuntary.

Typically, the “party asserting mootness” bears

the burden of showing that “the challenged conduct

cannot reasonably be expected to start up again.”

Adarand Constructors, Inc. v. Slater, 528 U.S. 216,

222 (2000) (citation omitted). But here, we need not

determine whether “the allegedly wrongful behavior

could not reasonably be expected to recur” because

that test applies only when a defendant voluntarily

complies with a request for prospective relief and then

challenges the relief on mootness grounds. Unified Sch.

Dist. No. 259 v. Disability Rts. Ctr. of Kansas, 491 F.3d

1143, 1149 (10th Cir. 2007) (cleaned up). Brent’s involuntary compliance makes the recurring-conduct

test a poor fit for this case. And it is the Union that is

raising a mootness challenge, not Brent, so the

Union’s assertion that Brent’s compliance is voluntary

rings hollow. But even if the Union were correct that

Brent voluntarily complied with the 2021 CBA, its

mootness challenge would still fail because, if

successful in this appeal, Brent could seek remedies

that would have real-world consequences. We address

those consequences next.

App.15a

B. Brent could seek monetary damages or

reimbursements if we decide this appeal

in Brent’s favor.

Though this appeal comes too late to affect

Brent’s compliance with the 2021 CBA, Brent may

still try to recover reimbursements or monetary damages stemming from its compliance if we rule in its

favor and invalidate the CIR award. If we invalidate the

2021 CBA, Brent could claim reimbursement of a $750

premium for a surety bond, plus interest. Brent could

also seek reimbursement of around $5,156.48 in

contributions it has made to the Labor-Management

Cooperation Committee (LMCC) and National Labor

Management Cooperation Committee (NLMCC) funds

“pursuant to unlawfully imposed permissive provisions”

in the 2021 CBA. Appellant Suppl. Br. at 5.

The Union counters that any “purported, potential

damages or other harm do not constitute live controversies.” Appellee Suppl. Br. at 9. The Union argues

that the surety-bond provision in the 2021 CBA is a

mandatory subject of bargaining, and so “any effort

Brent makes to seek reimbursement for premiums

would subject it to the NLRB’s enforcement authority.”

Id.; see id. at 6 (citing Scapino Steel Erectors, Inc., 337

NLRB 992, 993–94 (2002)). Second, the Union argues

that Brent’s claims to a refund for contributions it made

to the LMCC and NLMCC do not refute its mootness

argument, because “these funds are not parties to this

lawsuit, so there is no federal court jurisdiction in this

matter over either of them.” Id. at 9.

But all of Brent’s avenues for potential relief

depend on the outcome of this appeal, meaning our

decision carries real-world consequences. True enough,

Brent may have to initiate an NLRB proceeding to

App.16a

vindicate its right to a remedy under any of the 2021

CBA’s mandatory provisions, but it may only do so if

we invalidate the CBA. Likewise, Brent’s ability to

proceed against LMCC and NLMCC for reimbursement

of its contributions hinges on our decision here.

The Union adds that “if separately sued by

Brent, both [the LMCC and NLMCC] may be able to

successfully defend.” Id. According to the Union, these

committees could defend against such an action because “Brent has adopted the 2021 CBA by its

conduct, and is as bound as it would have been had it

signed that CBA at its inception.” Id. at 5. Further,

the Union argues, the liquidated-damages and interest

provisions attached to contributions to those committees’ funds are “triggered only by a delinquency in

contributions, and Brent has identified no such

delinquency arising under the 2021 CBA.” Id. at 9–10.

None of these uncertainties—regarding the forum

before which any remand proceedings may occur, the

likelihood of success of such proceedings, or what the

most appropriate remedy would be—affect our jurisdiction over this appeal. See Litton Fin. Printing Div.

v. N.L.R.B., 501 U.S. 190, 202 (1991) (“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.”). If we

decide in Brent’s favor, then Brent may seek such

relief and initiate those proceedings; without such a

decision, Brent may not. This is enough of a real-world

consequence to persuade us that Brent’s appeal is not

moot. See Rio Grande Silvery Minnow, 601 F.3d at

1110.

App.17a

C. We decline to exercise our discretion to

dismiss the appeal under the prudentialmootness doctrine.

Finally, the Union invites us to dismiss this case

under the prudential-mootness doctrine because the

relief sought here is “arguably” “declaratory in nature,”

Appellee Suppl. Br. at 2, and urges us to decide

“whether granting a present determination of the issues

offered will have some effect in the real world,” id.

(quoting Rio Grande Silvery Minnow, 601 F.3d at

1110). Having decided that we have Article III jurisdiction, we choose not to dismiss this case under the

prudential-mootness doctrine for two main reasons:

First, Brent does not seek injunctive relief against the

government, so considerations of comity are

inapposite. Second, Brent’s request for relief, though

framed in declaratory or injunctive terms, still has

real-world consequences—a decision in its favor would

result in remand proceedings in which Brent could

claim monetary damages, or at least reimbursement,

as discussed above. See Rio Grande Silvery Minnow,

601 F.3d at 1110.

For these reasons, we retain jurisdiction over this

appeal.

II. Legal Framework

We start with a brief survey of three interrelated

topics that are implicated in this appeal: the presumption of arbitrability, interest-arbitration clauses, and

the distinction between mandatory and permissive

subjects of bargaining.

App.18a

A. The Presumption of Arbitrability

In a set of three cases referred to as the

“Steelworkers trilogy,” the Supreme Court articulated a

framework by which to determine whether a collectivebargaining dispute is arbitrable. See generally United

Steelworkers of Am. v. Enter. Wheel & Car Corp.

(Enterprise Wheel), 363 U.S. 593 (1960); United Steelworkers of Am. v. Warrior & Gulf Nav. Co. (Warrior &

Gulf), 363 U.S. 574 (1960); United Steelworkers of Am.

v. Am. Mfg. Co., 363 U.S. 564 (1960). The Court has

summarized four main principles from the Steelworkers

trilogy. AT&T Techs., Inc. v. Commc’ns Workers of

Am., 475 U.S. 643, 648–50 (1986). 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.” Id. at 648 (quoting Warrior &

Gulf, 363 U.S. at 582); see Howsam v. Dean Witter

Reynolds, Inc., 537 U.S. 79, 83 (2002) (quoting same).

Second, the “question of arbitrability” is “an issue for

judicial determination.” AT&T, 475 U.S. at 649. That is,

“[u]nless the parties clearly and unmistakably provide

otherwise, the question of whether the parties agreed

to arbitrate is to be decided by the court, not the

arbitrator.” Id. (citing Warrior & Gulf, 363 U.S. at

582–83). Third, “in deciding whether the parties have

agreed to submit a particular grievance to arbitration,

a court is not to rule on the potential merits of the

underlying claims.” Id. at 649; see id. at 650 (“[C]ourts

. . . have no business weighing the merits of the

grievance . . . or determining whether there is particular language in the written instrument which will support the claim.” (quoting Am. Mfg. Co., 363 U.S. at

568)). Fourth, and most importantly here, “where the

contract contains an arbitration clause, there is a pre-

App.19a

sumption of arbitrability.” Id. at 650. This means 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.

Doubts should be resolved in favor of coverage.” Id.

(quoting Warrior & Gulf, 363 U.S. at 582–83).

The presumption of arbitrability arises from “congressional policy in favor of settlement of disputes by

the parties through the machinery of arbitration.”

Warrior & Gulf, 363 U.S. at 582. This is because, in

the labor context, “arbitration is the substitute for

industrial strife.” Id. at 578; see 29 U.S.C. § 151

(recognizing that “[t]he denial by some employers of

the right of employees to organize and the refusal by

some employers to accept the procedure of collective

bargaining lead to strikes and other forms of industrial

strife or unrest” and declaring “the policy of the

United States to eliminate the causes of certain substantial obstructions to the free flow of commerce”). The

presumption of arbitrability thus “reconciles the

principle that a party cannot be required to submit to

arbitration any dispute that he has not agreed so to

submit, with the federal policy and presumption

favoring arbitration in the labor context.” Int’l Bhd. of

Elec. Workers, Loc. No. 111 v. Pub. Serv. Co. of Colorado,

773 F.3d 1100, 1108 (10th Cir. 2014) (cleaned up).

But the presumption applies where “arbitration

of a particular dispute is what the parties intended

because their express agreement to arbitrate was

validly formed and (absent a provision clearly and

validly committing such issues to an arbitrator) is

legally enforceable and best construed to encompass

the dispute.” Granite Rock Co. v. Int’l Bhd. of Teamsters,

App.20a

561 U.S. 287, 303 (2010). So, “as with any other contract, the parties’ intentions control, but those intentions are generously construed as to issues of

arbitrability.” Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. 614, 626 (1985).

The Court directs us to apply the following framework to determine whether the presumption applies

and, if it does, whether it is rebutted:

[E]xcept 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 to

arbitrate grievances concerning a particular

matter. [Courts] then discharge this duty by:

(1) applying the presumption of arbitrability

only where a validly formed and enforceable

arbitration agreement is ambiguous about

whether it covers the dispute at hand; and

(2) adhering to the presumption and ordering

arbitration only where the presumption is

not rebutted.

Granite Rock, 561 U.S. at 301 (cleaned up).

And so, “[i]n the absence of any express provision

excluding a particular grievance from arbitration,

. . . only the most forceful evidence of a purpose to

exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague

and the arbitration clause quite broad.” Warrior & Gulf,

363 U.S. at 584–85; see Phillips 66, 839 F.3d at 1204

(quoting same).

A challenge to the scope of an interest-arbitration

clause is therefore construed as an arbitrability issue

because it challenges whether a particular dispute

App.21a

was rightly before an arbitrator—it does not challenge

the arbitration agreement’s existence. See Dumais v.

Am. Golf Corp., 299 F.3d 1216, 1220 (10th Cir. 2002)

(“ The presumption in favor of arbitration is properly

applied in interpreting the scope of an arbitration

agreement; however, this presumption disappears

when the parties dispute the existence of a valid arbitration agreement.”).

B. Interest-arbitration Clauses

CBAs often include what courts have called

“interest arbitration clause[s]” or provisions. Sheet

Metal Workers’ Int’l Ass’n, Loc. 14 v. Aldrich Air

Conditioning, Inc. (Aldrich Air Conditioning), 717

F.2d 456, 456 (8th Cir. 1983). Interest-arbitration

clauses usually function by allowing one party to

submit unresolved disputes to arbitration if negotiations

for a renewed agreement stall or are unproductive.

See id. (“An interest arbitration clause is one in which

the parties agree to arbitrate disputes over the terms

of a new collective bargaining agreement in the event

of deadlock.”). The resulting arbitration then leads to

the imposition of a set of “new contract terms.”

McElroy’s, 500 F.3d at 1095 n. 1.

Interest-arbitration clauses are often paired with

so-called “extension clauses” or “evergreen clauses,”

which, when combined, provide for the continuation of

a current agreement until a successor agreement is

reached, either by mutual agreement or by arbitration,

unless both parties agree to terminate. Id. at 1098

(“Read together, these articles provide two options

upon the expiration of the agreement: automatic

renewal” or “negotiation of a renewal agreement.” But

if “the parties fail to negotiate a renewal of the

App.22a

agreement . . . either party may submit the dispute to

the [arbitrator] for arbitration. While the dispute is

pending resolution before the [arbitrator], [the extension clause] prevents the original agreement from

expiring.” (cleaned up)).

C. Mandatory and Permissive Subjects of

Bargaining

The distinction between mandatory and permissive

subjects of bargaining stems from the National Labor

Relations (Wagner) Act of 1935 (NLRA), 29 U.S.C.

§§ 151–169. As amended by the Labor-Management

Relations (Taft-Hartley) Act of 1947 (LMRA), Pub. L.

No. 80–101, 61 Stat. 136, Section 8 of the NLRA

outlines both employers’ and labor organizations’

“[o]bligation[s] to bargain collectively” “with respect to

wages, hours, and other terms and conditions of

employment.” 29 U.S.C. § 158(d); see id. § 158(a)(5)

(making it an unfair labor practice for employers to

refuse to bargain collectively); id. § 158(b)(3) (same for

labor organizations). The Court refers to “wages,

hours, and other terms and conditions of employment,”

id. § 158(d), as “subjects for mandatory bargaining,”

Allied Chem. & Alkali Workers of Am., Loc. Union No.

1 v. Pittsburgh Plate Glass Co. (Allied Chemical), 404

U.S. 157, 178 (1971). By contrast, nonmandatory or

“permissive subjects cover[] all other areas.” Facet

Enters., Inc. v. N.L.R.B., 907 F.2d 963, 975 (10th Cir.

1990). So, “[a]lthough 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.’”

First Nat. Maint. Corp. v. N.L.R.B., 452 U.S. 666, 674

(1981) (quoting 29 U.S.C. § 158(d)). This means that

“parties to labor negotiations are not obligated to

App.23a

negotiate over permissive bargaining subjects.” Facet

Enterprises, 907 F.2d at 975.

To enforce the duty to bargain collectively over

mandatory subjects, Section 8(a)(5) makes an employer’s

“refus[al] to bargain collectively with the representatives of his employees” an unfair labor practice, §

158(a)(5), while Section 8(b)(3) makes a labor organization liable for the same behavior, id. § 158(b)(3).

When agreement about mandatory subjects is conditioned upon agreement about permissive subjects of

bargaining, such insistence is “in substance, a refusal to

bargain about the subjects that are within the scope

of mandatory bargaining.” N.L.R.B. v. Wooster Div. of

Borg-Warner Corp. (Borg-Warner), 356 U.S. 342, 349

(1958). And such a refusal constitutes an unfair labor

practice for labor organizations as well as

employers. See N.L.R.B. v. Bartlett-Collins Co., 639

F.2d 652, 655 (10th Cir. 1981) (“ The Court specifically

stated in Borg-Warner that good faith does not entitle

a party to insist upon nonmandatory subjects as a

precondition to agreement.”); Newspaper Printing

Corp. v. N.L.R.B., 625 F.2d 956, 963 (10th Cir. 1980)

(“[I]t is equally well established that insistence to

impasse upon a non-mandatory subject of bargaining

violates § 8(a)(5).”).

In practice, the distinction means that if an

impasse is reached after good-faith bargaining over

mandatory subjects, the other party may lawfully take

unilateral action to resolve the impasse.7 See Aggregate

7 “An impasse exists when parties to a labor negotiation exhaust

all possibility of reaching an agreement and further negotiations

would be fruitless. Once a valid impasse is reached, an employer

may take reasonable unilateral action without violating the

App.24a

Indus. v. N.L.R.B., 824 F.3d 1095, 1099 (D.C. Cir. 2016)

(“If the union refused to bargain, or if negotiations

reached an impasse, then the company could make the

change unilaterally.”). By contrast, “[a] unilateral

change to a permissive subject of bargaining is illegal”

so that “if negotiations stall, the company has no

choice but to maintain the status quo.” Id.

In conclusion, “[t]he duty [to bargain in good faith]

is limited to [wages, hours, and other terms and conditions of employment], and within that area neither

party is legally obligated to yield. As to other matters,

however, each party is free to bargain or not to

bargain, and to agree or not to agree.” Borg-Warner,

356 U.S. at 349 (citation omitted). Importantly, for

nonmandatory or permissive provisions, “[e]ach would

be enforceable if agreed to by the unions.” Id.

With that background in mind, we proceed to the

merits.

III. The presumption of arbitrability applies

because the interest-arbitration clause was

validly formed and covers the dispute.

Applying the Court’s directive in Granite Rock,

we note first that neither party contests that it is the

court’s duty to interpret the 2018 CBA and to determine

whether the parties intended to arbitrate permissive

subjects of bargaining. See 561 U.S. at 301 (“[E]xcept

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 to arbitrate grievances concerning a particular

[NLRA].” Facet Enterprises, 907 F.2d at 975 n.9 (10th Cir. 1990)

(citations omitted).

App.25a

matter.” (cleaned up)); Dumais, 299 F.3d at 1220

(“The presumption in favor of arbitration . . . disappears

when the parties dispute the existence of a valid arbitration agreement.”). We also note that Brent does not

challenge the validity of the 2018 CBA as a whole, or

contest that it agreed to the interest-arbitration clause

in Section 1.02(d). See Brent, 2023 WL 5750484, at *4

(stating that it is “undisputed that the parties agreed

to the 2018 CBA” and that the 2018 CBA includes

Section 1.02(d)); Op. Br. at 5 (“During early 2018,

NECA and the Union negotiated and entered into a

multi-employer collective bargaining agreement . . .

[including] Section 1.02(d).”); Resp. Br. at 16 (“Brent

does not dispute that it validly entered into the 2018

CBA, including its Section 1.02(d), an interest arbitration provision authorizing the CIR to adjudicate

unresolved bargaining issues.”).8

Brent argues instead that it did not intend by its

agreement to the 2018 CBA and Section 1.02(d) to

submit permissive subjects of bargaining to arbitration.

So by challenging the scope of the interest-arbitration

clause and asserting that it does not cover permissive

subjects of bargaining, Brent raises an arbitrability

issue. See McElroy’s, 500 F.3d at 1096 (stating that

the “ultimate question thus posed is whether the

agreement bound McElroy’s to engage in interest

arbitration” and construing that question as a “question

of arbitrability” for the court to decide (citation omitted)).

We therefore conclude that, because the arbitration

clause was validly formed, the presumption of

8 Brent’s objections relate to the CIR proceedings in 2021 and

the 2021 CBA—Brent does not identify any objections it made to

the 2018 CBA or the 2018 CBA’s interest-arbitration clause.

App.26a

arbitrability applies unless the arbitration clause does

not “encompass the dispute.” Granite Rock, 561 U.S.

at 303. To make that determination, we turn next to

the application of Granite Rock’s enumerated steps:

first, we determine whether the interest-arbitration

clause in the 2018 CBA unambiguously covers permissive subjects of bargaining; and second, if any

ambiguity exists, we discuss whether Brent rebutted

the presumption of arbitrability here.

A. The interest-arbitration clause unambiguously

covers all subjects in the 2018 CBA, including

permissive subjects.

As an initial matter, “[w]hen deciding whether

the parties agreed to arbitrate a certain matter

(including arbitrability), courts generally . . . should

apply ordinary state-law principles that govern the

formation of contracts.”9 First Options of Chicago, Inc.

v. Kaplan, 514 U.S. 938, 944 (1995); see Dish Network

L.L.C. v. Ray, 900 F.3d 1240, 1246 (10th Cir. 2018)

9 The Court qualified this rule by noting that “Courts should not

assume that the parties agreed to arbitrate arbitrability unless

there is ‘clea[r] and unmistakabl[e]’ evidence that they did so.”

First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)

(quoting AT&T, 475 U.S. at 649). It explained: “In this manner

the law treats silence or ambiguity about the question ‘who

(primarily) should decide arbitrability’ differently from the way

it treats silence or ambiguity about the question ‘whether a particular merits-related dispute is arbitrable because it is within

the scope of a valid arbitration agreement’—for in respect to this

latter question the law reverses the presumption.” Id. at 944–45.

But the “clear and unmistakable” standard does not apply here,

because, as discussed above, the parties do not dispute that the

scope of the interest-arbitration clause was properly submitted

to the court, not the arbitrator.

App.27a

(quoting same). CBAs are also interpreted “according

to ordinary principles of contract law.” M & G

Polymers USA, LLC v. Tackett, 574 U.S. 427, 435

(2015). Because the signatories to the 2018 CBA are

based in Oklahoma and the work was performed

there, we determine that Oklahoma law applies to the

interpretation of the 2018 CBA’s terms. See Okla.

Stat. Ann. tit. 15, § 162 (“A contract is to be interpreted

according to the law and usage of the place where it is

to be performed, or, if it does not indicate a place of

performance, according to the law and usage of the

place where it is made.”).10

Under Oklahoma contract law, “[i]f the terms of

a contract are unambiguous, clear and consistent,

they are accepted in their plain and ordinary sense

and the contract will be enforced to carry out the

intention of the parties as it existed at the time it was

negotiated.” Whitehorse v. Johnson, 156 P.3d 41, 47

(Okla. 2007). “Unless some technical term is used in a

manner meant to convey a specific technical concept,

language in a contract is given its plain and ordinary

meaning.” K & K Food Servs., Inc. v. S & H, Inc., 3

P.3d 705, 708 (Okla. 2000); see also Pitco Prod. Co. v.

Chaparral Energy, Inc., 63 P.3d 541, 545 (Okla. 2003)

(“If language of a contract is clear and free of

ambiguity the court is to interpret it as a matter of

law, giving effect to the mutual intent of the parties at

the time of contracting.” (footnotes omitted)). Further,

“[c]ontractual intent is determined from the entire

agreement.” Whitehorse, 156 P.3d at 47.

10 “Oklahoma statutes provide a comprehensive scheme which

governs contractual agreements.” Pitco Prod. Co. v. Chaparral

Energy, Inc., 63 P.3d 541, 545 n.16 (Okla. 2003).

App.28a

With these state-law contract principles in mind,

we examine the interest-arbitration clause at issue.

Section 1.02(d) of the 2018 CBA reads:

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 [CIR] may be submitted jointly or unilaterally to the [CIR] for

adjudication. Such unresolved issues or

disputes shall be submitted no later than the

next regular meeting of the [CIR] following

the expiration date of this agreement or any

subsequent anniversary date. The [CIR’s]

decisions shall be final and binding.

App. vol. I, at 48. The 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. . . . ” Id. We discern

that this is a “broad” arbitration clause, see Warrior &

Gulf, 363 U.S. at 585, because the terms “[u]nresolved

issues or disputes” are limited only by the qualification that they “aris[e] out of the failure to negotiate a

renewal or modification” of the CBA, App. vol. I, at 48.

Section 1.02(d) therefore provides that any disputes

arising from the eleven articles (each with several

subsections), and five addenda contained in the 2018

CBA may be unilaterally submitted to arbitration.

And, according to Brent, those eleven articles and five

addenda include both permissive and mandatory subjects of bargaining. See App. vol. II, at 118–19

(objecting that twenty-one subsections in the 2018

CBA were permissive subjects and should not be

imposed in the 2021 CBA). But see App. vol. III, at 211

App.29a

(“[T]he CIR does not agree that those provisions are

permissive subjects of bargaining.”).11

The arbitration clause’s breadth does not render

it ambiguous. We agree with the district court that the

term “‘unresolved issues or disputes’ is unambiguous.”

Brent Electric, 2023 WL 5750484, at *4 (quoting App.

vol. I, at 48). The district court properly consulted a

dictionary to confirm its understanding of the plain

meaning of that term, noting that the word “[u]nresolved”

means “not settled, solved, or brought to resolution,”

and that the word “[d]isputes” means a “controversy.” Id.

(citations omitted); see Cherokee Nation v. Lexington Ins.

Co., 521 P.3d 1261, 1267 (Okla. 2022) (“Our Court has

relied on dictionary definitions to provide the common,

ordinary usage of terms. A common dictionary is helpful

here.” (citation omitted)); see also McAuliffe v. Vail

Corp., 69 F.4th 1130, 1145 (10th Cir. 2023) (“When

determining the plain and ordinary meaning of words,

we may consider definitions in a recognized dictionary.”

11 The Union seems to accept Brent’s premise that the objectedto provisions in the 2021 CBA were “permissive subjects of

bargaining” despite the CIR determining otherwise. See Resp.

Br. at 10 (quoting CIR Letter). When the CIR responded to

Brent’s objections to the award, it wrote that “[t]hose provisions

have not been deleted for two reasons: 1) In each case, they are

among the ‘[u]nresolved issues or disputes’ that your company

explicitly agreed to submit to arbitration, and 2) the CIR does not

agree that those provisions are permissive subjects of

bargaining.” App. vol. III, at 211.

Because we are cautioned by the Court not to reach the merits of

an arbitral award, we do not question the CIR’s determination.

See AT&T, 475 U.S. at 649 (“[I]n deciding whether the parties

have agreed to submit a particular grievance to arbitration, a

court is not to rule on the potential merits of the underlying

claims.”).

App.30a

(citation omitted)). The district court determined that

the “language of § 1.02(d) captures a dispute over any

provision arising from the negotiation of a successor

agreement to the 2018 CBA.” Brent Electric, 2023

WL 5750484, at *4. It therefore concluded that the

agreement to arbitrate “extends to all subjects of

negotiation among the parties including those created

by contract,” and is not limited to mandatory subjects

of bargaining. Id. at *5.

The district court also properly looked to the

surrounding subsections in Article I to conclude that

Section 1.02 “refers to the agreement as a whole and

does not limit itself to disputes arising from obligations

imposed by the NLRA.” Id.; see Whitehorse, 156 P.3d

at 47 (“Contractual intent is determined from the entire

agreement.”); cf. Marcantel v. Saltman Fam. Tr., 993

F.3d 1212, 1235 (10th Cir. 2021) (applying Utah

principles of contract interpretation and considering

“natural meaning” of words “in context of the contract

as a whole”). For example, it noted that Section 1.02(a)

“refers to withdrawal from the agreement as a whole,”

that Section 1.02(b) “speaks of changes to the agreement

without distinction between the mandatory and nonmandatory subjects contained within the agreement,”

and that Section 1.02(f) discusses “terminating the

agreement, not parts of the agreement.” Brent Electric,

2023 WL 5750484, at *5. We see no flaw in the district

court’s plain-language and contextual analysis and

conclude that it tracks state-law principles governing

the formation of contracts. That Section 1.02(d) is

broadly worded and does not distinguish between

App.31a

mandatory and permissive subjects of bargaining does

not make it ambiguous as to either.12

Brent disputes the district court’s conclusion

that Section 1.02(d) contains “no language of limitation”

and that such an interpretation would give the CIR

“free reign [sic]” to consider and make “award[s] as to

any and every permissive subject of bargaining.” Op.

Br. at 28–29. But any authority that the CIR has—to

which Brent now objects—is authority which Brent

gave the CIR when it renewed the 2018 CBA, and with

it, Section 1.02(d)’s interest-arbitration clause. See

Discussion § IV(B), infra; McElroy’s, 500 F.3d at 1097

(“Nothing in the NLRA, the NLRB’s decisions, or this

Court’s precedent releases McElroy’s from this

bargained-for contractual obligation.”). Brent

argues that Section 1.02(d) “must be construed in

light of the ‘important goal of national labor policy’ to

12 On appeal, Brent asserts that Section 1.02(d) is “unquestionably

ambiguous,” and claims that the district court’s “act of consulting

a source outside of the specific language for its meaning”—i.e.,

a dictionary—“demonstrates that the language is in fact ambiguous.” Op. Br. at 24. Brent argues that the term “unresolved

issues or disputes” is ambiguous about whether a party may unilaterally submit to the CIR both mandatory and permissive subjects of bargaining, or only mandatory subjects of bargaining. Id.

But as the Union notes, Brent did not argue below that this

provision is ambiguous; rather, it referred to the provision as

having a “plain meaning.” Resp. Br. at 19 (quoting App. vol. IV,

at 501 n.4, 502; App. vol. VIII, at 1222). Because Brent did not

present the argument it now makes on appeal—that Section

1.02(d) is ambiguous as to permissive subjects of bargaining—

and does not argue for plain-error review, it has waived that

argument. See Ball v. United States, 967 F.3d 1072, 1078 (10th

Cir. 2020) (“Because Plaintiffs failed to preserve their argument

below and have not argued for relief under plain-error review, we

consider the argument waived.”).

App.32a

preserve the ‘freedom to exclude nonmandatory subjects

from labor agreements.’” Op. Br. at 30 (quoting Sheet

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

Metal Co. (E.F. Etie), 1 F.3d 1464, 1476 (5th Cir.

1993)). But Brent relies on out-of-circuit authority for

this proposition—E.F. Etie is not binding on us.

Brent’s attempt to shoehorn its public-policy argument

into a contract-interpretation argument is unavailing.

B. Even if Section 1.02(d) were ambiguous,

the presumption in favor of arbitrability

would still apply because Brent has not

rebutted it with forceful evidence.

Because we conclude that Section 1.02(d)

unambiguously covers both permissive and mandatory

subjects of bargaining, the presumption of arbitrability

arising from a validly formed agreement to arbitrate

is not defeated. But even if we agreed with Brent’s

waived appellate argument that Section 1.02(d) is

ambiguous about whether it includes permissive subjects of bargaining, see supra n.12, we “adher[e] to the

presumption and order[] arbitration” where, as here,

“the presumption is not rebutted.” Granite Rock, 561

U.S. at 301. “To rebut the presumption, the party

opposing arbitration must provide ‘forceful evidence’

that the parties intended to exclude the dispute from

arbitration.” Phillips 66, 839 F.3d at 1204 (quoting

Warrior & Gulf, 363 U.S. at 584–85). Such “forceful

evidence” of an exclusion may come from the CBA

itself. See Loc. 5-857 Paper, Allied-Indus., Chem. &

Energy Workers Int’l Union v. Conoco, Inc., 320 F.3d

1123, 1127 (10th Cir. 2003) (considering and rejecting

company’s assertion that language in the agreement

provided positive assurance that the arbitration clause

was not susceptible to an interpretation covering the

App.33a

dispute). Or it may come from “facts beyond the

agreement” such as “the terms of an employee medical

plan” or “the parties’ ‘bargaining history.’” Nat’l

Nurses Org. Comm. v. Midwest Div. MMC, LLC, 70

F.4th 1315, 1327 (10th Cir. 2023) (Rossman, J.,

dissenting) (first citing Phillips 66, 839 F.3d at 1207;

and then citing Loc. 7 United Food & Com. Workers

Int’l Union v. Albertson’s Inc., 963 F.2d 382 at *2 (10th

Cir. 1992) (unpublished table decision)); cf. Paper,

Allied-Indus., Chem. & Energy Workers Int’l Union

Loc. No. 4-2001 v. ExxonMobil Ref. & Supply Co., 449

F.3d 616, 620 (5th Cir. 2006) (“[E]vidence of

bargaining experience can be introduced only where

the contract language is ambiguous as to arbitrability.”

(emphasis omitted)).

So Brent would need to show “the most forceful

evidence of a purpose to exclude [permissive subjects

of bargaining] from arbitration.” Phillips 66, 839 F.3d

at 1204 (quoting Warrior & Gulf, 363 U.S. at 584–85).

Brent does not point to such evidence. Other than

Brent’s real-time objections to the Union’s unilateral

submission of the dispute to CIR in the spring of 2021,

Brent offers no evidence to refute its intent in the

spring of 2018 to submit “[u]nresolved issues or disputes

arising out of the failure to negotiate a renewal or

modification of this agreement” to arbitration, as

memorialized in the 2018 CBA. App. vol. I, at 48.

Brent has not attempted to show that the 2018 CBA’s

terms provide evidence of an intent to exclude permissive subjects of bargaining from interest arbitration, or that any evidence beyond the CBA’s four

corners, such as the parties’ bargaining history, does

so. Without such evidence, the district court correctly

concluded that, even if Section 1.02(d) were ambiguous

App.34a

as to permissive subjects of bargaining, the presumption of arbitrability would still apply.

IV. Brent asserts no statutory right that allows it

to avoid its contractual obligations.

Brent argues that it has a statutory right to “refuse

to bargain over and accept . . . permissive subjects of

bargaining” in the 2021 CBA, Op. Br. at 27, and that

because the Union can identify no “clear and

unmistakable” waiver language in the 2018 CBA,

Brent did not waive that statutory right, id. at 25–26

(quoting Metro. Edison Co. v. N.L.R.B., 460 U.S. 693,

708 (1983)).13 But requiring a waiver in these circumstances would effectively “reverse[] the presumption”

that should apply. First Options of Chicago, 514 U.S.

at 945. As described above, the presumption of arbitrability applies in this case and Brent did not present

forceful evidence to rebut it. Because the statutory

rights Brent would need to assert to prevail in this

argument do not exist, and because the statutory

rights Brent does have were not infringed, we decline

to reverse the presumption. Instead, we hold Brent to

its contractual agreement to submit unresolved issues

to arbitration.

13 We note that the Court also uses the “clear and unmistakable”

waiver standard to determine whether parties have agreed to

submit the “gateway” issue of arbitrability to an arbitrator—but

that is a different situation than here. See Dish Network, 900

F.3d at 1243–44 (“The question whether the parties have submitted a particular dispute to arbitration, i.e., the question of

arbitrability, is an issue for judicial determination unless the

parties clearly and unmistakably provide otherwise.” (cleaned up)).

App.35a

A. The “clear and unmistakable” waiver

standard is inapplicable here.

Brent’s “clear and unmistakable” waiver argument

is misplaced because where there is no infringement

of a statutory right, no waiver is necessary. In support

of its statutory-rights argument, Brent relies on

Sections 8(a)(5), 8(b)(3), and 8(d) of the NLRA, 29

U.S.C. § 158, which together make it an unfair labor

practice for an employer or labor organization to

refuse to bargain collectively and in good faith about

mandatory subjects of bargaining. These statutory

provisions allow either party to charge the other with

an unfair labor practice before the NLRB if that party

refuses to bargain over mandatory subjects or insists

on or bargains to impasse over permissive subjects.

See 29 U.S.C. § 160(a) (empowering the NLRB “to

prevent any person from engaging in any unfair labor

practice” listed in § 158); Newspaper Printing Corp.,

625 F.2d at 963 (stating that “it is the Board’s duty to

make the final determination as to whether an unfair

labor practice has occurred” and that “insistence to

impasse upon a non-mandatory subject of bargaining

violates § 8(a)(5)”).

To bring its argument into alignment with the

NLRA and caselaw, Brent frames its statutory right

as the right to “refuse to bargain over permissive subjects.” Reply Br. at 10. But Brent’s articulation of that

right is deceptive: Brent’s asserted right is not as

broad as the right it would need to assert for its argument to work, which is the purported right to not have

permissive subjects of bargaining imposed in arbitration under an interest-arbitration clause to which it

agreed.

App.36a

Brent cites Edison in support of its assertion that

any “contractual waiver of a protected right must be

‘clear and unmistakable.’” Op. Br. at 25 (quoting Edison,

460 U.S. at 708); see also Capitol Steel & Iron Co. v.

N.L.R.B., 89 F.3d 692, 697 (10th Cir. 1996) (“Waivers

of statutory bargaining rights must be ‘clear and

unmistakable’ in order for courts to enforce them.”

(quoting Edison, 460 U.S. at 708)). In Edison, the

Court reviewed a decision by the NLRB that “the

imposition of more severe sanctions on union officials

for participating in an unlawful work stoppage violates

§ 8(a)(3),” meaning that such conduct evinced antiunion discrimination and violated the right to strike.

460 U.S. at 710; see id. at 702, 705. Indeed, the right

to strike is affirmatively stated in the NLRA. 29

U.S.C. § 163. And anti-union discrimination is prohibited as an unfair labor practice under § 158(a)(3).

The Court recognized that “a union could choose

to bargain away this statutory protection to secure

gains it considers of more value to its members.”

Edison, 460 U.S. at 707. But any such waiver must be

“established clearly and unmistakably.” Id. at 709.

The Court was not convinced by the company’s position that “the union’s silence manifested a clear

acceptance of the earlier arbitration decisions”—which

imposed a “higher duty on union officials” than other

employees—because the Court did not agree “that two

arbitration awards establish a pattern of decisions clear

enough to convert the union’s silence into binding

waiver.” Id.

We emphasize here that Edison’s procedural

posture was the review of an NLRB decision: the

union had charged the company with an unfair labor

practice, and the company asserted waiver (by the

App.37a

union) of the specific statutory right as a defense. Id.

at 697, 700. This procedural posture is a common

scenario for a court’s review of clear-and-unmistakablewaiver claims under the NLRA. See, e.g., Int’l Bhd. of

Elec. Workers, Loc. 803 v. N.L.R.B., 826 F.2d 1283,

1285, 1287–88 (3d Cir. 1987) (finding clear-and-unmistakable waiver of union’s right to strike in general

no-strike clause and upholding NLRB’s dismissal of

union’s unfair labor practice claim); Gen. Motors Corp.

v. N.L.R.B., 700 F.2d 1083, 1088–91 (6th Cir. 1983)

(enforcing NLRB decision holding that company committed an unfair labor practice by withholding timestudy data that was “relevant and necessary to the

Union’s bargaining function” because the CBA was

silent on time-study data and so the union did not

clearly and unmistakably waive that right).

The Court has since applied Edison’s clear-andunmistakable waiver standard to examine whether a

union has waived a judicial forum for its members’

individual claims under other statutes, not just the

NLRA, by agreeing to arbitration clauses or other

alternative-dispute-resolution provisions. See, e.g.,

Livadas v. Bradshaw, 512 U.S. 107, 125 (1994) (noting

that the CBA in a grocery store wages dispute did not

clearly and unmistakably waive store clerk’s right to

bring state-law wage claims in court); Wright v.

Universal Mar. Serv. Corp., 525 U.S. 70, 72, 80 (1998)

(finding that a general arbitration clause did not meet

clear-and-unmistakable waiver standard for employee to waive judicial forum for claims under the Americans with Disabilities Act, 42 U.S.C. §§ 12101–

12213); 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 274

(2009) (holding that CBA’s arbitration clause requiring union members to arbitrate claims arising from

App.38a

the Age Discrimination in Employment Act, 29 U.S.C.

§§ 621–634, is enforceable where the waiver is clear

and unmistakable).14

We and other circuits have continued to apply the

clear-and-unmistakable waiver standard to assess a

union’s waiver of its individual members’ statutory

rights. See, e.g., Mathews v. Denver Newspaper Agency

LLP, 649 F.3d 1199, 1205–07 (10th Cir. 2011) (citing

14 Penn Plaza and Wright for “clear and unmistakable”

standard and finding that CBA did not explicitly

waive judicial forum for employee’s Title VII claims

even though CBA empowered arbitrator to resolve

similar but contract-based anti-discrimination rights);

Abdullayeva v. Attending Homecare Servs. LLC, 928

F.3d 218, 222–23 (2d Cir. 2019) (finding that CBA’s

arbitration provision clearly and unmistakably waived

judicial forum for home-healthcare worker’s Fair Labor

Standards Act, 29 U.S.C. §§ 201–219, and state

labor-law claims); Darrington v. Milton Hershey Sch.,

958 F.3d 188, 191 (3d Cir. 2020) (finding that CBA’s

arbitration provision clearly and unmistakably waived

judicial forum for discrimination claims under Title

VII, 42 U.S.C. §§ 2000e–2000e-17, and state anti-discrimination act); Ibarra v. United Parcel Serv., 695

F.3d 354, 357, 359–60 (5th Cir. 2012) (finding that

CBA’s arbitration provision did not clearly and un14 14 Penn Plaza established a “two-prong test” to determine when

a “court may compel arbitration of a plaintiff’s federal statutory

claim”: “(1) the arbitration provision clearly and unmistakably

waives the employee’s ability to vindicate his or her federal statutory right in court; and (2) the federal statute does not exclude

arbitration as an appropriate forum.” Jones v. Does 1-10, 857

F.3d 508, 512 (3d Cir. 2017) (citing 14 Penn Plaza, 556 U.S. at 260).

!

App.39a

mistakably waive judicial forum for Title VII claims

and remarking that, “courts have concluded that for a

waiver of an employee’s right to a judicial forum for

statutory discrimination claims to be clear and unmistakable, the CBA must, at the very least, identify the

specific statutes the agreement purports to incorporate

or include an arbitration clause that explicitly refers

to statutory claims”). As the Second Circuit noted,

“the [clear and unmistakable] standard ensures that

employees’ right to bring statutory claims in court is

not waived by operation of confusing, ‘very general’

arbitration clauses.” Abdullayeva, 928 F.3d at 223

(quoting Wright, 525 U.S. at 80).

Understanding the waiver standard’s application

in these cases helps us see the contrast here. Unlike

the plaintiffs in these statutory-claims cases, Brent is

not asserting a right under which it would have

sought a remedy but for its agreement to an overly

broad or vague arbitration clause, nor is it challenging

the forum in which it would have vindicated such a

right. And unlike parties charging an unfair labor

practice violation before the NLRB, Brent is not

countering a defense of waiver. As far as we can tell,

Brent did not bring a statutory claim before the

NLRB charging the Union with an unfair labor practice.15 Nor does Brent claim that the 2018 CBA

prevented it from doing so.

15 Brent insinuated below and implied in its appellate briefing

that the Union insisted on or bargained to impasse over permissive

subjects. See App. vol. I, at 19 (“[N]either party can lawfully insist

on the Article/Section being included in a successor [CBA].”); Op.

Br. at 21 (“The [NLRB] . . . has ruled that insisting on

permissive subjects of bargaining constitutes bad faith and

violates the NLRA.”); Reply Br. at 10 (“This Court has likewise

App.40a

In West Coast Sheet Metal, Inc. v. N.L.R.B., the

D.C. Circuit grappled with a similar argument: the

company in that case argued that the NLRB’s decision

“allowed a ‘fundamental’ statutory right to be relinquished without requiring a showing that it was

‘clearly and unmistakably waived.’” 938 F.2d 1356,

1362 (D.C. Cir. 1991). The company had charged the

union with an unfair labor practice, alleging that the

union’s “declaration of a deadlock and submission of

the dispute to [arbitration] violated the union’s duty

held that bargaining to impasse over a permissive subject

constitutes an unfair labor practice under the NLRA.”).

Brent complained in the proceedings below about the Union’s

uncooperative behavior in 2021—the period between Brent’s

proposing a new CBA and the Union’s referral to the CIR. See

generally App. vol. II, at 150–57 (Brent’s Brief to CIR). Brent told

the CIR that the Union was still not “ready to negotiate” in

December 2020, three months after Brent notified the Union of

its intent to terminate the 2018 CBA. Id. at 150. The Union

apparently stalled the negotiations, and in March 2021 made it

“clear that the Union intended to seek CIR to resolve the

negotiations.” Id. at 151. The parties exchanged some emails

with proposed agreements but could not come to an agreement.

In April 2021, the Union notified Brent of its intent to unilaterally invoke interest arbitration. The parties eventually met

after the Union’s invocation of interest arbitration, apparently to

little avail. Brent summarized it thus: “[T]he Company believes

that the Union’s conduct, including its March 25, 2021 letter,

demonstrates the Union never intended to negotiate an

agreement but rather intended to bypass negotiations and proceed directly to CIR. The Union’s conduct makes a sham out of

the bargaining process and improperly attempts to make CIR

party to its sham bargaining.” Id. at 155.

But Brent does not directly accuse the Union of insisting on or

bargaining to impasse over permissive subjects of bargaining and

nothing in the record suggests that Brent charged the Union

with an unfair labor practice before the NLRB.

App.41a

under section 8(b)(3) of the NLRA to bargain in good

faith, and coerced and restrained [the company] in the

selection of its representatives for the purposes of

collective bargaining, thus violating section 8(b)(1)(B).”

Id. at 1359 (cleaned up). The NLRB rejected the company’s accusation that the union bargained to impasse

on the inclusion of a new interest-arbitration clause

and held that a “union does not commit an unfair

labor practice by submitting deadlocks to interest arbitration,” so long as the interest-arbitration clause

arguably covers an employer who has withdrawn from a

multi-employer association in the middle of the contract’s term, and so long as the union bargained in good

faith before submitting unresolved issues to arbitration. Id. at 1359–60. The district court enforced the

NLRB’s decision, and the company appealed. Id. at

1360.

Affirming the NLRB’s decision in International

Brotherhood of Electrical Workers, Local No. 113

(Collier Electric) as a reasonable interpretation of the

right in question, the D.C. Circuit rejected the company’s framing of its “‘fundamental’ statutory right.”

Id. at 1362 (citing Collier Electric, 296 NLRB 1095,

1097 (1989)). The D.C. Circuit concluded that the purported right “does not bestow upon an employer, who has

withdrawn midterm from a multiemployer association, any right to be free from a union’s invocation,

after bargaining in good faith to impasse, of an at least

arguably applicable interest arbitration provision.”

Id. The D.C. Circuit determined that Collier Electric

“in effect decided that the employer’s right at issue is

not so sweeping as [the company] conceives it to be.”

Id. So because the NLRB did not find that the statutory right was infringed, it “had no occasion to deter-

App.42a

mine whether [the company] had ‘waived’ its section

8(b)(1)(B) right, ‘clearly and unmistakably’ or

otherwise.” Id. “[I]nstead, the key question is simply

whether [the union] infringed that right, either by

unreasonably invoking the interest arbitration clause,

or by bargaining in bad faith before invoking the

clause.” Id. at 1363.

The D.C. Circuit called the company’s argument

“misguided” and rejected its reliance on Edison. See

id. at 1362 & n.16. It explained that “‘[w]aiver’ is a

concept that operates to counter claims that a recognized right has been infringed; it does not apply

beyond the scope of the right that has allegedly been

invaded.” Id. at 1362. In other words, because the

NLRB found that the company’s alleged statutory

right had not been infringed, and the D.C. Circuit

agreed, the court declined the company’s invitation to

broaden that right and then look for waiver of such

right in the CBA. Id.

Brent’s clear-and-unmistakable-waiver argument

would make more sense if the arbitration clause

prevented Brent from bringing an unfair labor practice

charge against the Union or if the NLRB had decided

against Brent on such a charge. But without an

infringement of a statutory right, or even an alleged

infringement of such a right, it makes no sense to

search for a clear-and-unmistakable waiver. Like the

employer’s asserted right in West Coast Sheet Metal,

Brent’s asserted statutory right sweeps far more

broadly than the statute and caselaw on which Brent

bases its alleged right. See 938 F.2d at 1360. We

therefore reject Brent’s waiver argument.

App.43a

B. Brent’s statutory rights do not excuse it

from its contractual obligations.

Any statutory rights Brent has under 29 U.S.C.

§ 158(d) or § 158(f) do not excuse Brent from complying

with its contractual agreement.16 Our governing precedent, McElroy’s, reinforces Borg-Warner’s rule that a

party’s contractual agreement is binding and enforceable

even if that party is not under a statutory obligation

to negotiate those terms. See Borg-Warner, 356 U.S.

at 349 (“Each of the two controversial [nonmandatory]

clauses is lawful in itself. Each would be enforceable

if agreed to by the unions.” (footnote omitted)). In

McElroy’s, a company challenged the imposition of a

renewed pre-hire agreement where, as here, the parties’

relationship was governed by Section 8(f) of the

NLRA, § 158(f). 500 F.3d at 1097. The company

argued that it had no statutory obligation to negotiate

16 The Union and amici NECA and International Brotherhood of

Electrical Workers dispute whether Brent has any statutory

rights under § 159(a) and § 158(d) because Brent and the Union

had a bargaining relationship under § 158(f) for “employees

engaged . . . in the building and construction industry. . . . ”

§ 158(f); see Resp. Br. at 50–51; Amicus Br. at 18– 20. Parties

with a Section 8(f) relationship have no statutory duty to

negotiate a successor agreement. McElroy’s, 500 F.3d at 1097. So

because Brent had no statutory § 158(d) duty to bargain over

mandatory subjects, the Union argues that Brent had no statutory § 158(d) right to not bargain over permissive subjects. Brent

replies that the evergreen clause kept their statutory relationship and thus their § 158(d) rights alive past the 2018 CBA’s

expiration. We need not decide this issue here because the parties’

status under § 159(a) or § 158(f) does not change the parties’ contractual agreement in the 2018 CBA. And even assuming Brent

is correct that it had § 158(d) rights throughout the duration of the

2018 CBA, Brent does not demonstrate that those rights were

infringed. See Discussion § IV(A), supra.

App.44a

the new pre-hire agreement. Id. at 1096–97. The

union sought enforcement of an arbitration award

directing the parties to renew the agreement. Id. at

1095. The previous agreement had an “extension

clause” (like the evergreen clause here, Section 1.02(c)),

and an interest-arbitration clause (like Section 1.02(d)).

Id. The district court confirmed the arbitrator’s award

of the new agreement and the company appealed. Id.

at 1096. We framed the ultimate question on appeal

as “whether the agreement bound [the company] to

engage in interest arbitration.” Id. The company made

parallel arguments17 to those Brent makes here, which

we rejected:

While we agree that [the company] is under

no statutory obligation to negotiate a renewal

contract, we conclude that the terms of the

pre-hire agreement—specifically the extension

and interest arbitration clauses—create a

contractual obligation to do so when one party

timely gives notice of reopening. Nothing in

the NLRA, the NLRB’s decisions, or this

Court’s precedent releases [the company]

from this bargained-for contractual obligation.

Id. at 1097.

We explained that “while unilateral termination

of a pre-hire collective bargaining agreement prior to

expiration is prohibited, nothing in the NLRA prohibits

either party from repudiating a pre-hire obligation

17 Though the company in McElroy’s argued that it had no statutory duty to negotiate, Brent argues that it has a statutory right

to not negotiate. We see these arguments as two sides of the same

coin.

App.45a

upon its expiration. Whether the contract itself permits

repudiation, however, is another matter.” Id. We also

rejected the company’s argument that because it had

not engaged in active negotiations to renew the

agreement, no “deadlock” triggered the interest-arbitration clause. Id. at 1099. We reasoned that “[t]his

argument is valid only if the parties have no obligation to negotiate a renewal agreement in the first

place.” Id. We therefore affirmed the district court’s

enforcement of the renewal agreement. Id.

Here, as in McElroy’s, the interest-arbitration

clause in the 2018 CBA was a bargained-for contractual

obligation that Brent freely agreed to and that, by its

own terms, either party could trigger unilaterally if

renewal negotiations broke down. As the Union points

out, McElroy’s “is in harmony with other Circuit

Courts, which similarly have held employers to interestarbitration awards where employers have asserted

the absence of a statutory bargaining duty as

justification for refusing to comply with them.” Resp.

Br. at 34. Indeed, most circuits and the NLRB have

distinguished statutory from contractual obligations

and held employers to their contractual agreements to

arbitrate.18

18 See, e.g., Coca-Cola Bottling Co. of New York v. Soft Drink &

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

F.3d 408, 410 (2d Cir. 1994) (“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 No. 38], labor law, or the Arbitration Act

precludes arbitration of a dispute concerning the meaning or

application of that provision”); Loc. Union No. 666, Int’l Bhd. of

Elec. Workers v. Stokes Elec. Serv., Inc., 225 F.3d 415, 422, 425

(4th Cir. 2000) (distinguishing statutory and contractual obligations and enforcing CIR award after union invoked interest-arbi-

App.46a

tration clause despite the NLRB finding that the company’s

refusal to bargain was based on good-faith doubt about the

union’s majority status and no unfair labor practice occurred);

Sheet Metal Workers Int’l Ass’n Local 110 Pension Tr. Fund v.

Dane Sheet Metal, Inc., 932 F.2d 578, 582 (6th Cir. 1991)

(observing that, though “[a]rbitration does not create a bargaining

obligation, . . . the contract itself may create a bargaining obligation, just as the contract may provide for interest arbitration if

the bargaining breaks down”); Sheet Metal Workers Loc. Union

No. 20 v. Baylor Heating & Air Conditioning, Inc., 877 F.2d 547,

551 & n.4 (7th Cir. 1989) (distinguishing contractual and statutory duties to bargain and holding that “when the underlying

controversy is primarily contractual, the Board should defer to

the courts”); Local Union 257, Int’l Bhd. of Elec. Workers v.

Sebastian Elec., 121 F.3d 1180, 1185–86 (8th Cir. 1997) (discussing

distinction between contractual and statutory duty to bargain

and holding that the interest-arbitration clause under a Section

8(f) pre-hire agreement was binding and enforceable); Beach Air

Conditioning & Heating v. Sheet Metal Workers Int’l Ass’n, Loc.

Union No. 102, 55 F.3d 474, 477 (9th Cir. 1995) (observing that

the company had a “statutory right to walk away from the

agreement upon its expiration, without submitting to arbitration” but that “[t]he contract is another matter” and affirming

prior rulings enforcing interest-arbitration clauses “because the

contract imposes not only a duty to accept a settlement imposed

by the arbitrators once negotiations fail, but also a duty to

negotiate in the first place”); see also Rd. Sprinkler Fitters Loc.

Union No. 669 v. N.L.R.B., 676 F.2d 826, 831 (D.C. Cir. 1982)

(“This statutory duty to bargain is independent of any obligation

the employer may incur under his contract with the union.”);

Collier Electric, 296 NLRB at 1098 (holding that a union is “free

to seek enforcement of its contractual rights by submitting the

unresolved bargaining issues to interest arbitration, and by

pursuing a Section 301 suit in court, without violating Section

8(b)(3) or Section 8(b)(1)(B) of the Act” so long as the arbitration

provision “arguably binds the employer to the arbitration

provision” and does not “contain[] language explicitly stating that

an employer who has withdrawn from the multiemployer association is not bound to interest arbitration”).

App.47a

Brent does not attempt to distinguish or grapple

with McElroy’s in its reply brief. Nor does it wrestle

with the vast weight of authority holding parties to

their contractual agreements to arbitrate. Instead, it

dismisses the Union’s contractual-obligation arguments

as “inconsequential where it must be determined

whether a protected right has been waived.” Reply Br.

at 16. But as explained above, Brent’s waiver arguments are misplaced, and Brent points to no statutory

right that trumps its contractual agreement to

arbitrate.

We turn next to Brent’s public-policy arguments.

V.

Imposing permissive subjects of bargaining

in interest arbitration does not violate public

policy.

Brent urges us to join a minority of circuits that

have held that imposing permissive subjects of

bargaining in arbitration violates public policy. We

first consider the Court’s guidance for when an

arbitral award may be void for violating public policy.

In general, “courts are not authorized to consider the

merits of an award,” because “[t]he federal policy of

settling labor disputes by arbitration would be

undermined if courts had the final say on the merits

of the awards.” United Paperworkers Int’l Union v.

Misco, 484 U.S. 29, 36 (1987) (citation omitted). Rather,

“arbitral decisions” are typically “ins ulat[ed] . . . from

judicial review.” Id. at 37. This highly deferential

standard means that an arbitral award is legitimate

if it “draws its essence from the collective bargaining

agreement” and if “the arbitrator is even arguably

construing or applying the contract and acting within

the scope of his authority.” Loc. No. 7, United Food &

App.48a

Com. Workers Int’l Union v. King Soopers, Inc., 222

F.3d 1223, 1227 (10th Cir. 2000) (first quoting

Enterprise Wheel, 363 U.S. at 597; and then quoting

Misco, 484 U.S. at 38).

But this deference to the merits of an arbitral

award is subject to one narrow exception: courts may

set aside an award when it contravenes “some explicit

public policy that is well defined and dominant, and is

to be ascertained by reference to the laws and legal

precedents and not from general considerations of

supposed public interests.” Id. at 43 (cleaned up). In

Misco, the Court refused to vacate an arbitral award

on public-policy grounds where the award reinstated

a drug-user employee. Id. at 32–33. Examining Misco

in a later opinion, the Court framed the inquiry as not

“whether [the worker’s] drug use itself violates public

policy, but whether the agreement to reinstate him

does so.” E. Associated Coal Corp. v. United Mine

Workers of Am., Dist. 17, 531 U.S. 57, 62–63 (2000). It

explained that the inquiry, more specifically, should

be: “[D]oes a contractual agreement to reinstate [the

worker] with specified conditions, 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?”

Id. at 63 (citation omitted).

So our inquiry here is whether the 2021 CBA’s

inclusion of permissive subjects of bargaining runs

“contrary to an explicit, well-defined, and dominant

public policy, as ascertained by reference to positive

law.” Id. The Union and amici NECA and the

International Brotherhood of Electrical Workers agree

that a second-generation interest-arbitration clause

(also known as a self-perpetuating interest-arbitration

App.49a

clause) would violate public policy. Second-generation

interest-arbitration clauses are “interest arbitration

clauses [that are] included within an interest arbitration award” so that the interest-arbitration process is

self-perpetuating and “a party may find itself locked

into having that procedure imposed on it for as long

as the bargaining relationship endures.” Mulvaney

Mech., Inc. v. Sheet Metal Workers Int’l Ass’n., Loc. 38,

288 F.3d 491, 505 (2d Cir. 2002), vacated, rev’d on

other grounds, 538 U.S. 918 (2003). Many courts have

held that public policy prevents such clauses from

being imposed. See, e.g., Loc. 58, Int’l Bhd. of Elec.

Workers v. Se. Michigan Chapter, Nat’l Elec.

Contractors Ass’n, Inc. (Local 58), 43 F.3d 1026, 1032

(6th Cir. 1995) (“[A]n arbitrator may not use an interest

arbitration clause as a means of self-perpetuation,

and . . . this type of ‘second generation’ interest arbitration clause cannot be included over another party’s

objection.”); Am. Metal Prods., Inc. v. Sheet Metal

Workers Int’l Ass’n, Loc. Union No. 104 (American

Metal), 794 F.2d 1452, 1456–58 (9th Cir. 1986)

(affirming district court’s enforcement of CIR interestarbitration award apart from the second-generation

interest-arbitration clause); Aldrich Air Conditioning,

717 F.2d at 459 (“[A]n interest arbitration clause is

unenforceable insofar as it applies to the inclusion of

a similar clause in a new collective bargaining agreement.”); Milwaukee Newspaper & Graphic Commc’ns

Union v. Newspapers, Inc., 586 F.2d 19, 21 (7th Cir.

1978) (affirming district court’s enforcement of CIR

interest-arbitration award apart from the secondgeneration interest-arbitration clause).

We have not yet decided that issue and we need

not decide it here because the CIR did not impose a

App.50a

self-perpetuating, or second-generation interest-arbitration clause in the 2021 CBA. Rather, when the CIR

imposed the 2021 CBA, it changed Section 1.02(d) of the

2018 CBA so that the parties must mutually agree to

“submit the unresolved issues to the [CIR] for adjudication.” App. vol. IV, at 272–73. Under the 2021 CBA,

if one party does not want to “renew, modify, or

extend” the agreement, or “submit the unresolved

issues to the [CIR],” then either party may terminate

the agreement upon “a ten (10) day written notice.”19

19 The new 2021 CBA clauses in full are:

(d). In the event that either party, or an Employer

withdrawing representation from the Chapter or not

represented by the Chapter, has given a timely notice

of proposed changes and an agreement has not been

reached by the expiration date or by any subsequent

anniversary date to renew, modify, or extend this

Agreement, or to submit the unresolved issues to the

[CIR], either party or such an Employer, may serve

the other a ten (10) day written notice terminating

this Agreement. The terms and conditions of this

Agreement shall remain in full force and effect until

the expiration of the ten (10) day period.

(e). By mutual agreement only, the Chapter, or an

Employer withdrawing representation from the

Chapter or not represented by the Chapter, may

jointly, with the Union, submit the unresolved issues

to the [CIR] for adjudication. Such unresolved issues

shall be submitted no later than the next regular

meeting of the [CIR] following the expiration date of

this Agreement or any subsequent anniversary date.

The [CIR’s] decisions shall be final and binding. both

parties must either agree to a new CBA, or agree to

arbitration; otherwise, one party may terminate the

agreement.

App. vol. IV, at 272–73.

App.51a

Id. This means that the CBA is not self-perpetuating,

because both parties must either agree to a new CBA,

or agree to arbitration; otherwise, one party may

terminate the agreement.

Brent generates a long string cite in support of its

argument that arbitration awards that “purport to

impose upon an employer a permissive subject of

bargaining” are “contrary to law and public policy.”

Op. Br. at 37; see id. at 37–39 (collecting cases). But

as the Union points out, four of the seven circuit cases

Brent cites are “inapposite” because their public-policy

discussions condemn imposing second-generation interest-arbitration clauses specifically, and do not speak

to the imposition of permissive subjects of bargaining

in general. Resp. Br. at 40–41 (citing Local 58, 43

F.3d at 1032; American Metal, 794 F.2d at 1457–58;

Aldrich Air Conditioning, 717 F.2d at 459; Milwaukee

Newspaper & Graphic, 586 F.2d at 21). Brent seems

to argue that because imposing a self-perpetuating

interest-arbitration clause in arbitration violates

public policy, and self-perpetuating 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.

More worthy of examination is Brent’s reliance

on cases from the Second, Fifth, and Sixth Circuits

that ostensibly support its argument that “[a]s 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.” Op. Br. at 30 (quoting N.L.R.B.

App.52a

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

(Local Union No. 38), 575 F.2d 394, 399 (2d Cir. 1978)).

In Local Union No. 38, a union had bargained to

impasse about a second-generation interest-arbitration

clause, among other provisions. Id. The Second Circuit

explained that the NLRA prohibits “insistence on a

nonmandatory subject to impasse, that is, making

agreement on a nonmandatory subject a condition to

any agreement.” Id. at 398. The Second Circuit then

more broadly held that “an interest arbitration

provision of a collective bargaining agreement is void

as contrary to public policy, insofar as it applies to

nonmandatory subjects.” Id.

Though that case ostensibly supports Brent’s

position, the Second Circuit has since clarified that

Local Union No. 38’s rule applies only when there is

no pre-existing contract. See Coca-Cola Bottling Co. of

New York v. Soft Drink & Brewery Workers Union,

Loc. 812, Int’l Bhd. of Teamsters, 39 F.3d 408, 410 (2d

Cir. 1994) (explaining that Local Union No. 38’s

holding “did not place a similar limit on the arbitrability

of disputes arising under an existing contract” because

“[i]f 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 No. 38], labor law, or the Arbitration

Act precludes arbitration of a dispute concerning the

meaning or application of that provision”). So the

Second Circuit’s caselaw does not help Brent.20

20 The Union also critiques Local Union No. 38 as relying on a

mistaken reading of N.L.R.B. v. Columbus Printing Pressmen &

Assistants’ Union No. 252 (Columbus Printing Pressmen), 543

F.2d 1161, 1169 (5th Cir. 1976). As the Union points out, the

App.53a

We next consider Brent’s reliance on Fifth Circuit

caselaw, namely E.F. Etie, 1 F.3d at 1464. Though the

Fifth Circuit in E.F. Etie discussed self-perpetuating

interest-arbitration clauses as against national labor

policy, it also extended that rule to hold more broadly

that, “[i]nsofar as an interest arbitration proceeding

forced a party to put nonmandatory issues on the

table, it was unenforceable as contrary to that policy.”

Id. at 1476. E.F. Etie cited Local Union No. 38 in support, and, by extension, Allied Chemical, on which

Local Union No. 38 also relied. See E.F. Etie, 1 F.3d at

1467. But Allied Chemical does not support the conclusion Brent draws from these cases.

In Allied Chemical, the Court decided that an

employer’s unilateral midterm modification of retiree

benefits for already-retired employees was not an

unfair labor practice because such modification did

not concern a mandatory subject of bargaining. 404

U.S. at 159–60, 185. The Court did not discuss interest

arbitration, and neither did it state that interest

arbitration of permissive subjects conflicted with

national labor policy. So E.F. Etie merely repeated

Local Union No. 38’s mistaken reading of Allied

Chemical.21 We agree with the district court that

Second Circuit undermined its own reliance on Columbus

Printing Pressmen, because, though the Second Circuit cited it

for the proposition that the NLRB “espoused the position we now

adopt,” it later said that the Fifth Circuit “did not reach the question of the validity of interest arbitration clauses as applied to

nonmandatory subjects in general, but did hold such clauses

invalid as applied to one of the nonmandatory issues involved in

this case, to wit, renewal of the interest arbitration provision

itself.” Local Union No. 38, 575 F.2d at 399.

21 Local Union No. 38 extrapolated its policy rule from an overbroad

reading of Allied Chemical: “The importance of preserving

App.54a

“Brent Electric’s reading of E.F. Etie and Local Union

38 to prohibit interest arbitration of all non-mandatory

subjects is incorrect because neither case held that

interest arbitration could not resolve non-mandatory

subjects when the parties had agreed to interest arbitration for non-mandatory subjects.” Brent Electric,

2023 WL 5750484, at *9.

Finally, Brent lists Sheet Metal Workers, Local

Union No. 24 v. Architectural Metal Works, Inc.

(Architectural Metal), 259 F.3d 418 (6th Cir. 2001).

parties’ freedom to exclude nonmandatory subjects from labor

agreements is acknowledged by the rule that ‘[b]y 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). E.F.

Etie also cited Ninth and Eighth Circuit cases in support of its

rule. See 1 F.3d at 1476 (citing Am. Metal Prods., Inc. v. Sheet

Metal Workers Int’l Ass’n, Loc. No. 104 (American Metal), 794

F.2d 1452, 1467 (9th Cir. 1986); Sheet Metal Workers’ Int’l Ass’n,

Loc. 14 v. Aldrich Air Conditioning, Inc., 717 F.2d 456, 459 (8th

Cir. 1983)). But neither of those cases help Brent here. In American Metal, the Ninth Circuit held that an arbitrator cannot

impose an interest-arbitration clause over the objection of the

parties to the arbitration. 794 F.2d at 1456–57. American Metal

did not concern enforcement of an interest-arbitration clause

that was mutually agreed upon by the parties, as it was here. See

generally id. at 1453– 58. Similarly, the Eighth Circuit in Aldrich

Air Conditioning held that “an interest arbitration clause is unenforceable insofar as it applies to the inclusion of a similar

clause in a new collective bargaining agreement.” 717 F.2d at

459. Like American Metal, Aldrich Air Conditioning concerned a

new agreement and not an interest-arbitration provision that the

parties had agreed to; these cases predominantly reflect the concern that self-perpetuating interest-arbitration clauses not be

imposed in arbitration over a party’s objection. So, “[o]nce

included in a collective bargaining agreement, however, interest

arbitration clauses generally are enforceable.” Aldrich Air Conditioning, 717 F.2d at 458.

App.55a

The real dispute in Architectural Metal was whether

an extension clause and self-perpetuating interestarbitration provision could be imposed in arbitration.

See id. at 430. The Sixth Circuit leaned on a prior case

to conclude that any interest-arbitration, extension

clause, “and/or any other covenant or condition which

did not directly implicate a mandatory subject of

collective bargaining . . . shall be deemed null, void,

and unenforceable against [the company].” Id. at 431.

But that prior case (Local 58) in turn relied on Local

Union No. 38 for the general proposition that “interest

arbitration as to nonmandatory subjects is ‘void as

contrary to public policy.’” Local 58, 43 F.3d at 1032

(quoting Local Union No. 38, 575 F.2d at 398).

This line of caselaw collapses under any real

scrutiny: If we remove from Local Union No. 38, E.F.

Etie, and Architectural Metal any discussion of selfperpetuating interest-arbitration provisions, those cases

lack the rigorous inquiry into positive law that the

Court in Eastern Associated Coal demands to justify a

blanket rule prohibiting all permissive subjects of

bargaining from being imposed in interest arbitration.

See 531 U.S. at 62–63. Paraphrasing Eastern Associated

Coal, “[D]oes [an arbitral award imposing permissive

subjects of bargaining in a CBA] 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?”

Id. at 63. We easily conclude that it does not. Brent’s

cited cases do not reference any “explicit, well-defined,

and dominant public policy” to prevent a party from

contractually agreeing to arbitration that may impose

permissive subjects of bargaining. Indeed, our own

precedent and the vast weight of caselaw compel the

App.56a

opposite conclusion: dominant public policy favors

holding parties to their contractually agreed obligations.

See, e.g., Borg-Warner, 356 U.S. at 349 (“[E]ach party

is free to bargain or not to bargain, and to agree or not

to agree” and “[e]ach of the two controversial

[nonmandatory] clauses . . . would be enforceable if

agreed to by the unions.”); McElroy’s, 500 F.3d at 1097

(“Nothing in the NLRA, the NLRB’s decisions, or

this Court’s precedent releases McElroy’s from this

bargained-for contractual obligation.”); Collier

Electric, 296 NLRB at 1098 (holding that a union is

“free to seek enforcement of its contractual rights by

submitting the unresolved bargaining issues to interest

arbitration, and by pursuing a Section 301 suit in

court, without violating Section 8(b)(3) or Section

8(b)(1)(B) of the Act”).

We acknowledge that Brent’s public-policy argument may be colorable. But the Second Circuit has

disavowed Brent’s interpretation of Local Union No.

38, and the Fifth and Sixth Circuit decisions Brent

cites rest on dubious foundations. So we decline Brent’s

invitation to join this circuit minority.

App.57a

VI. The CIR did not exceed its authority under

the Federal Arbitration Act.

Under the Federal Arbitration Act, 9 U.S.C. §§ 1–

16, a court may vacate an arbitration award 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.” Id. § 10(a)(4). Because we do not agree

with Brent that it has a statutory right to avoid having

permissive subjects of bargaining imposed in arbitration

when it agreed to interest arbitration in the 2018

CBA, and because we reject Brent’s public-policy

arguments, we conclude that the CIR did not exceed

its powers.

CONCLUSION

We affirm the district court’s dismissal of Brent’s

complaint and grant of the Union’s motion for summary

judgment confirming the CIR award.

App.58a

OPINION AND ORDER,

U.S. DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

(SEPTEMBER 6, 2023)

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

________________________

BRENT ELECTRIC CO., INC.,

Plaintiff/CounterDefendant,

v.

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS LOCAL UNION NO. 584,

Defendant/CounterPlaintiff.

________________________

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

Before: Claire R. KELLY, Judge.

OPINION AND ORDER

In the matter before the Court, the Brotherhood

of Electrical Workers Local Union No. 584 (“the Union”)

counterclaimed against Brent Electric Company, Inc.

(“Brent Electric”), to confirm an arbitral award issued

by Council on Industrial Relations (“CIR”) which

resolved a dispute between Brent Electric and the

Union concerning a 2018 Collective Bargaining Agree-

App.59a

ment (“2018 CBA”). See Counterclaim, July 15, 2021,

ECF No. 16. Brent Electric had sued the Union because

it objected to the terms of the successor collective

bargaining agreement (“2021 CBA”) imposed as a result

of the arbitral award and sought to vacate the award.

See First Am. Compl., July 1, 2021, ECF No. 10. The

Court previously granted the Union’s motion to dismiss

Brent Electric’s complaint. See Opinion and Order at

12, Nov. 16, 2022, ECF No. 45; see also Mot. Dismiss,

July 15, 2021, ECF No. 18.

Both parties have moved for summary judgment

on the Union’s counterclaim. The Union, in addition

to asking this Court to confirm the arbitral award,

seeks additional remedies in connection with the

confirmation of the award. See Counterclaim at 8.

Specifically, the Union asks for an audit of Brent

Electric’s payroll records at Brent Electric’s expense

and attorneys’ fees. See id. Brent Electric seeks summary judgment in opposition to the Union’s claim to

confirm the arbitral award. See Brent’s Mot. Summary J., Apr. 21, 2023, ECF No. 68 (“Brent’s Moving

Br.”). The Union filed its response on May 19, 2023.

See Union’s Opp. [Brent’s Moving Br.], May 19, 2023,

ECF No. 74 (“Union’s Resp. Br.”). The Union moved for

summary judgment on July 10, 2023. See Br. Supp.

Union’s Mot. Summary J., July 10, 2023, ECF No. 77

(“Union’s Moving Br.”). Brent responded to the Union’s

motion on July 31, 2023. See Brent’s Opp. [Union’s

Moving Br.], July 31, 2023, ECF No. 78 (“Brent’s Resp.

Br.”). The Union filed its reply on August 11, 2023. See

Union’s Reply [Brent’s Resp. Br.], August 11, 2023,

ECF No. 79 (“Union’s Reply”).

App.60a

JURISDICTION AND STANDARD OF REVIEW

The Court has jurisdiction over the parties’ claims

arising under § 301 of the Labor Management Relations

Act (“LMRA”)1 pursuant to 28 U.S.C. § 1331 (2018).

The Court shall grant summary judgment if there

is no genuine dispute of material fact and the moving

party is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(a). When considering summary judgment,

the Court must view all facts and inferences drawn

from the record in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986). However, only disputes over

material facts—those affecting the outcome of the

case—preclude summary judgment. Id. at 248.

UNDISPUTED FACTS2

Brent Electric authorized the Eastern Oklahoma

Chapter of the National Electric Contractors Association

1 Section 301 of the LMRA provides that:

Suits for violation of contracts between an employer

and a labor organization representing employees in

an industry affecting commerce as defined in this

chapter, or between any such labor organizations,

may be brought in any district court of the United

States having jurisdiction of the parties, without respect

to the amount in controversy or without regard to the

citizenship of the parties.

29 U.S.C. § 185.

2 The Court draws the undisputed material facts from the record.

The parties provide their statements of fact in their briefs pursuant to Fed. R. Civ. P. 56(c). See Brent’s Moving Br. at 2–10

(“Brent’s First SOF”); Brent’s Resp. Br. at 1–7 (“Brent’s Second

App.61a

(“NECA”) to act on its behalf as representative for all

matters related to the collective bargaining between

NECA and the Union. Brent’s First SOF ¶ 1.3 Pursuant to its agreement with NECA, Brent Electric

agreed to be bound to the 2018 CBA concluded by

NECA and the Union. Brent’s First SOF ¶¶ 2–3;

Brent’s Second SOF ¶ 3; Union’s First SOF ¶ 3; Union’s

Second SOF ¶ 3; see IBEW Inside Construction

Agreement, ECF No. 10-2 (“2018 CBA”). The 2018

CBA included Addendum Four Memorandum of Understanding (“Addendum Four”),4 which involves NECA,

the Union, and the Oklahoma Electrical Supply Company (“OESCO”) and was initially executed on May

30, 2012, and renewed on June 1, 2018. See Compl. at

Ex. D, July 1, 2021, ECF No. 10-6 (“Addendum Four”).

The addendum regards Brent Electric’s obligations

toward the pension plan trust. Brent’s First SOF

¶¶ 14–15; Union’s First SOF ¶¶ 10, 14.

SOF”); Union’s Resp. Br. at 1–11 (“Union’s First SOF”); Union’s

Moving Br. at 3–8 (“Union’s Second SOF”).

3 The Union’s statement of facts omits responses where the

Union does not dispute Brent Electric’s facts. See Union’s Resp.

Br. at 2.

4 In its motion for summary judgment, Brent Electric addresses

Addendum Four of the 2018 CBA as separate and distinct from

the 2018 CBA. See Brent’s First SOF ¶¶ 40–41, 44; Brent’s Second

SOF ¶¶ 3, 10, 12, 14. However, the Union disputes Brent Electric’s

characterization of the Addendum as distinct from the 2018

CBA. See Union’s First SOF ¶ 10 (“But, Local 584 disputes any

assertions or implications that this addendum’s terms were not

part of the 2018 CBA, and disputes that this addendum existed

independently of the 2018 CBA”). Brent Electric did not file a

reply to the Union’s response. See Fed. R. Civ. P. 56(e)(2).

App.62a

On September 18, 2020, Brent Electric informed

NECA and the Union that it was revoking and

terminating its authorization of NECA as its representative, and that it was also terminating the 2018

CBA. Brent’s First SOF ¶¶ 5–6, 8; Brent’s Second SOF

¶ 5; Union’s First SOF ¶ 6; Union’s Second SOF ¶ 5. On

February 12, 2021, Brent Electric sent a letter to the

Union regarding a CBA that would succeed the 2018

CBA, which was set to expire on May 31, 2021. Brent

Electric’s letter challenged “non-mandatory permissive

subjects of bargaining under federal labor law,” Brent’s

First SOF ¶¶ 17–21. Brent Electric argued “the Union

could not compel or require Brent Electric to agree to

or accept” the 2018 CBA provisions. Union’s First SOF

¶¶ 18, 20–21. The Parties met in March and April of

2021, but were unable to successfully negotiate a

successor to the 2018 CBA. Union’s Second SOF ¶ 5;

Brent’s Second SOF ¶ 5.

On April 9, 2021, the Union informed Brent

Electric of its “intent to submit to the [CIR] for its

consideration during the May 2021 regular CIR meeting

unresolved issues that remain between the parties as

of April 20, 2021, and that may continue to be

unresolved in bargaining conducted after April 20th.”

Brent’s First SOF ¶ 22; Union’s Second SOF ¶ 6. On

April 16, 2021, Brent Electric declined the Union’s

invitation to join it in submitting their unresolved

issues to the CIR for adjudication. Union’s Second

SOF ¶ 6; Brent’s Second SOF ¶ 6. Following Brent

Electric’s rejection of the invitation, the Union unilaterally submitted these unresolved issues to the CIR.

Brent’s First SOF ¶ 24; Union’s First SOF ¶ 24. On

April 30, 2021, Brent Electric informed the CIR that

it objected to the Union’s unilateral submission to the

App.63a

CIR. Brent’s First SOF ¶¶ 23, 26; Brent’s Second SOF

¶¶ 6–7; Union’s First SOF ¶ 26; Union’s Second SOF

¶ 7. With its objection to arbitration, Brent Electric

enclosed its brief regarding the unresolved issues,

including its opposition to inclusion in a successor

CBA of alleged “non-mandatory permissive subjects of

bargaining.” Brent’s First SOF ¶ 27; Brent’s Second

SOF ¶ 7; Union’s First SOF ¶ 27.

On May 27, 2021, the CIR transmitted to the

parties its Preliminary Decision, including a successor

CBA, dated May 19, 2021. Brent’s First SOF ¶ 28;

Brent’s Second SOF ¶ 10; Union’s First SOF ¶ 28;

Union’s Second SOF ¶ 10. On May 30, 2021, Brent

Electric sent a letter to the CIR alleging errors and

omissions, such as the inclusion of alleged permissive

subjects of bargaining and Addendum Four. Brent’s

First SOF ¶ 34; Brent’s Second SOF ¶ 11; Union’s

First SOF ¶ 34; Union’s Second SOF ¶ 11. On June 4,

2021, the CIR issued a Second Decision rejecting

Brent Electric’s allegations of errors and omissions

and containing a revised version of the 2021 CBA, correcting one clerical error. Brent’s First SOF ¶ 35;

Brent’s Second SOF ¶ 12; Union’s First SOF ¶ 35;

Union’s Second SOF ¶ 12; see Compl. at Ex. O, July 1,

2021, ECF No. 10-15. On June 28, 2021, Brent Electric

received the CIR’s Final Decision backdated May 19,

2021 and labeled Decision No. 8735, which also contained the 2021 CBA and Addendum Four. Brent’s

First SOF ¶ 37; Brent’s Second SOF ¶ 14; Union’s

First SOF ¶ 37; Union’s Second SOF ¶ 14. The

versions of the 2021 CBA attached to the Second Decision and the Final Decision are identical, and the final

decision implemented the Second Decision. Brent’s

First SOF ¶ 38; Union’s First SOF ¶ 38. Brent Electric

App.64a

has not signed the 2021 CBA since receiving the CIR’s

Final Decision on June 28, 2021. Union’s Second SOF

¶ 15; Brent’s Second SOF ¶ 15.

DISCUSSION

The parties dispute whether the Court should

confirm the CIR award, order an audit, or impose

attorneys’ fees. Brent Electric argues that it did not

agree to arbitration of permissive subjects of bargaining

and therefore the CIR’s award is invalid, see Brent’s

Moving Br. at 11–25, while the Union argues that the

unambiguous language of the 2018 CBA provides for

arbitration, the award reflects the essence of the

agreement between the parties and comports with

public policy,5 see Union’s Moving Br. at 11–24. The

Union asks the Court to confirm the award imposing

the 2021 CBA including the provisions in Addendum

Four. Union’s Moving Br. at 24. The Union further

seeks an audit of Brent Electric’s business records

related to payroll as well as attorneys’ fees. Union’s

Moving Br. at 19–21. Brent Electric opposes both the

request for an audit and attorneys’ fees. Brent’s

Response Brief at 10–11. For the following reasons,

the Court denies Brent Electric’s motion for summary

judgment on the Union’s counterclaim, and grants in

5 Permissive subjects of bargaining are those provisions addressing matters other than wages, working hours, and other conditions of employment. See NRLB v. Wooster Div. of Borg-Warner

Corp., 356 U.S. 342, 349 (1958). One particular type of permissive

subject of bargaining is an interest arbitration clause. “Interest

arbitration is the arbitration of new contract terms.” Sheet Metal

Workers’ Int’l Ass’n, Loc. Union No. 2 v. McElroy’s, Inc., 500 F.3d

1093, 1095 n.1 (10th Cir. 2007).

App.65a

part and denies in part the Union’s motion for summary judgment.

I.

The Arbitrability of Disputes Arising from

the Interest Arbitration Clause

Although the CIR concluded that the 2018 CBA

empowered it to resolve the disputes concerning the

negotiation of a successor agreement including the

subject challenged here, the Union concedes that

deference to an arbitral decision may be withheld

where a court confronts a “gateway issue” going to

arbitrability of the dispute. Union’s Resp. Br. at 13–

14; Union’s Moving Br. at 10–11. Brent Electric does

not explicitly frame its challenge as one of arbitrability;

nonetheless Brent Electric’s arguments implicitly challenge the arbitrability of certain disputes regarding the

modification or renegotiation of the 2018 CBA. Brent

Electric states that it never agreed to submit permissive

subjects of negotiation to the CIR. Brent’s Moving Br.

at 23–25; Brent’s Response Br. at 7–10. However,

because the Union and Brent Electric explicitly agreed

to submit to arbitration any “unresolved issues or

disputes arising out of the failure to negotiate a

renewal or modification of this agreement,” Brent

Electric agreed to submit the subjects of negotiation

at issue here to the CIR. See 2018 CBA § 1.02(d).

Gateway issues, i.e., disputes over whether the

parties have a valid arbitration agreement at all, or

whether an arbitration clause applies to a certain

type of controversy, are questions of law for a court to

decide. See Dish Network L.L.C. v. Ray, 900 F.3d 1240,

1242 (10th Cir. 2018). In so deciding, the Court will

look to the language of the agreement and the issue

involved to determine if the parties consented to

App.66a

submit the dispute to arbitration. See United Steel,

Paper & Forestry, Rubber, Mfg., Energy, Allied Indus.

& Serv. Workers Int’l Union & its Loc. 13-857 v.

Phillips 66 Co., 839 F.3d 1198, 1204 (10th Cir. 2016).

If the language is ambiguous the Court applies a presumption of arbitrability for disputes and will order

arbitration unless the Court determines “with positive

assurance” that the parties intended to exclude the

matter from arbitration. See Phillips 66 Co., 839 F.3d

at 1204. A party can overcome this presumption with

“forceful evidence that the parties intended to exclude

the grievances from arbitration.” See Phillips 66 Co.,

839 F.3d. at 1205 (quoting United Steelworkers of Am.

v. Warrior & Gulf Navigation Co., 363 U.S. 574, 585

(1960).

Brent Electric’s argument that the CIR was

powerless to include permissive subjects of arbitration

fails.6 See Brent’s Moving Br. at 14–20; Brent’s Resp.

6 The CIR’s letter of June 4, 2021 responding to Brent Electric’s

May 30, 2021 letter asserted that:

We note that Brent Electric’s letter of May 30, 3021,

requests the deletion of several other provisions,

which that letter describes as permissive subjects of

bargaining. Those provisions have not been deleted

for two reasons: 1) In each case, they are among the

“[u]nresolved issues or disputes” that your company

explicitly agreed to submit to arbitration, and 2) the CIR

does not agree that those provisions are permissive

subjects of bargaining.

See Brent’s First SOF ¶¶ 34–35; Brent’s Second SOF ¶ 11;

Union’s First SOF ¶ ¶ 34– 35; Union’s Second SOF ¶ 11 (additional facts asserted by Defendant to which Plaintiff did not

reply). Despite conceding that gateway issues are to be decided

by the Court, the Union also argues for deference to the CIR’s

interpretation of § 1.02(d) arguing that “[t]he Court has no oppor-

App.67a

Br. at 7–10. It is undisputed that the parties agreed

to the 2018 CBA, which provides:

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.

2018 CBA § 1.02(d); Brent’s First SOF ¶¶ 2–3; Brent’s

Second SOF ¶ 4; Union’s First SOF ¶ 3; Union’s Second

SOF ¶ 4. The phrase “unresolved issues or disputes” is

unambiguous. “Unresolved” means “not settled, solved,

or brought to resolution.” Merriam-Webster’s Dictionary, https://www.merriam-webster.com/dictionary/

unresolve (last visited July 30, 2023). “Disputes”

means a “controversy.” Merriam-Webster’s Dictionary,

https://www.merriam-webster.com/dictionary/ dispute

(last visited July 29, 2023). These terms are limited by

the clause that follows “arising out of the failure to

negotiate a renewal or modification of this agreement.”

2018 CBA § 1.02(d). Thus, the parties agreed to submit

to arbitration unsettled controversies in connection

with the renewal or modification of the agreement.

Section 1.02 has no language of limitation. The language of § 1.02(d) captures a dispute over any provision

tunity, here, to establish Section 1.02(d)’s meaning in the first

instance, so ordinary contract interpretation principles have no

place.” Union’s Moving Br. at 20. The Court does not rely upon the

CIRs rationale for determining that it was empowered to

arbitrate the dispute before it, as whether it had such power is a

question of law for the Court to decide. See Dish Network, 900

F.3d at 1242.

App.68a

arising from the negotiation of a successor agreement

to the 2018 CBA.

Brent Electric counters that § 1.02(d) would have

to explicitly state that it “included permissive issues”

because permissive issues, “were not Unresolved

Issues.”7 Brent’s Moving Br. at 9–10, 23–24; Brent’s

Resp. Br. at 5–6. Brent Electric’s argument cannot

withstand scrutiny. Brent Electric’s argument assumes

that the words “unresolved issues or disputes” in

§ 1.02(d) would only include mandatory subjects of

negotiation. Brent Electric argues “[t]he parties’ duty

to bargain created under Sections 8(a)(5), 8(b)(3) and

8(d) of the NLRA is limited to mandatory subjects of

bargaining such as rates of pay, wages, hours of

employment, or other terms and conditions of employment.” See Brent’s Moving Br. at 11. But the agreement

to arbitrate is not so limited; rather, it extends to all

subjects of negotiation among the parties including

those created by contract. 2018 CBA § 1.02(d). Section

1.02(d) must be read in context. The entirety of § 1.02

refers to the agreement as a whole and does not limit

itself to disputes arising from obligations imposed by

the NLRA:

SECTION 1.02

7 Brent Electric argues that there “is no evidence that Brent

Electric waived its statutory right against being compelled to

agree non-mandatory permissive subjects of bargaining . . . ”

despite signing the 2018 CBA. Brent’s Moving Br. at 25

(referencing Brent Electric Letter of April 30, 2021, to the CIR).

As discussed more fully below, the duty to negotiate may stem

from either statute or contract. Here, the Union argues that

Brent Electric contracted to resolve any disputes concerning the

negotiation of a successor CBA to the 2018 CBA through arbitration.

App.69a

(a) Either party or an Employer withdrawing

representation from the Chapter or not

represented by the Chapter, desiring to

change or terminate this Agreement must

provide written notification at least 90 days

prior to the expiration date of the Agreement

or any anniversary date occurring thereafter.

(b) Whenever notice is given for changes, the

nature of the changes desired must be

specified in the notice, or no later than the

first negotiating meeting unless mutually

agreed otherwise.

(c) The existing provisions of the Agreement,

including this Article, shall remain in full

force and effect until a conclusion is reached

in the matter of proposed changes.

(d) 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.

Such unresolved issues or disputes shall be

submitted no later than the next regular

meeting of the Council following the expiration date of this agreement or any subsequent

anniversary date. The Council’s decisions

shall be final and binding.

(e) When a case has been submitted to the

Council, it shall be the responsibility of the

negotiating committee to continue to meet

App.70a

weekly in an effort to reach a settlement on

the local level prior to the meeting of the

Council.

(f)

Notice of a desire to terminate this Agreement

shall be handled in the same manner as a

proposed change.

2018 CBA § 1.02. Subsection (a) refers to withdrawal

from the agreement as a whole which itself includes

both mandatory and non-mandatory subjects. Subsection (b) likewise speaks of changes to the agreement

without distinction between the mandatory and nonmandatory subjects contained within the agreement.

2018 CBA § 1.02. Subsection (f) addresses terminating

the agreement, not parts of the agreement. The entirety

of § 1.02 including subsection (d) addresses the 2018

CBA as a whole. Thus, the language of § 1.02(d)

unambiguously captures any disputes that result

from the negotiation of a successor agreement to the

2018 CBA.

Even if one could construe the language of

§ 1.02(d) as ambiguous, Brent Electric would need to

demonstrate that “the parties intended to exclude” the

dispute from arbitration. Phillips 66 Co., 839 F.3d at

1204. Indeed, contrary to Brent Electric’s position,

subsection (d) would need to explicitly exclude permissive subjects of negotiation for § 1.02(d) not to

apply to the dispute at issue here. Brent Electric

points to nothing that would demonstrate that the

parties intended to exclude permissive subjects of

negotiation; rather Brent Electric argues only that

permissive subjects can never be imposed in interest

arbitration. As will be discussed below, Brent Electric’s

argument regarding whether interest arbitration may

impose permissive subjects of negotiation is mistaken.

App.71a

Thus, there can be no argument that the parties

agreed to arbitrate disputes regarding otherwise

permissive subjects of negotiation.

II. Confirmation of the Award

The Union argues that the CIR’s decision is

entitled to great deference. See Union’s Moving Br. at

8–9. Brent Electric counters that the deferential standard “does not allow the CIR to violate public policy or

to impose on Brent Electric permissive subjects of

bargaining in violation of federal law.” Brent’s Resp.

Br. at 7. Brent Electric requests the Court grant summary judgment in its favor and refuse to confirm the

CIR award because the CIR panel’s inclusion of

permissive subjects of bargaining in its final decision

exceeded its powers and violates public policy. See

Brent’s Moving Br. at 11–20; Brent’s Resp. Br. at 7–10.

Having decided that the parties agreed to submit the

renegotiation of the 2018 CBA to arbitration, the

Court must accept the decision so long as the award

draws its essence from the agreement and comports

with national labor policy. Kennecott Utah Copper

Corp. v. Becker, 195 F.3d 1201, 1204 (10th Cir. 1999).

Confirmation of an arbitral award requires a valid

agreement to arbitrate, and that the award does not

exceed the power of the arbitrators.8 See 9 U.S.C. §§ 9,

10(a)(4); AT&T Mobility LLC v. Concepcion, 563 U.S.

8 Courts provide “maximum deference . . . to the arbitrator’s

decision . . . because the standard of review of arbitral awards is

among the narrowest known to the law.” ARW Exploration Corp.

v. Aguirre, 45 F.3d 1455, 1462–63 (10th Cir. 1995) (internal quotation marks omitted) (quoting Litvak Packing Co. v. United

Food & Commercial Workers, Loc. Union No. 7, 886 F.2d 275, 276

(10th Cir. 1989).

App.72a

333, 339 (2011); see 9 U.S.C. § 2.9 When reviewing an

arbitral award, the court upholds the arbitrator’s decision “[s]o long as the award draws its essence from the

collective bargaining agreement.” Kennecott, 195 F.3d

at 1204 (internal quotation marks omitted). An award

does not draw its essence from a CBA if it is “contrary

to the express language of the contract” or “without

rational support.” LB & B Assocs., Inc. v. Int’l Bhd. of

Elec. Workers, Loc. No. 113, 461 F.3d 1195, 1197–98

(10th Cir. 2006) (quoting Loc. No. 7 United Food and

Com. Workers Int’l Union v. King Soopers, 222 F.3d

1223, 1227 (10th Cir. 2000)); Mistletoe Express Serv.

v. Motor Expressmen’s Union, 566 F.2d 692, 694 (10th

Cir. 1977) (citing Ludwig Honold Mfg. Co. v. Fletcher,

405 F.2d 1123, 1128 (3d Cir. 1969)). The arbitrator’s

award is legitimate so “long as the arbitrator is even

arguably construing or applying the contract and

9 The Labor Management Relations Act of 1947 (LMRA) applies

to CBA arbitration. Courts may also look to the provisions of the

Federal Arbitration Act (“FAA”) for guidance as well. See 29

U.S.C. §§ 141–197; United Paperworkers Int’l Union, AFL-CIO v.

Misco, Inc., 484 U.S. 29, 40 n.9 (1987). Pursuant to the FAA

Courts may vacate an award for the following reasons:

where the award was procured by corruption, fraud,

or undue means;(2) where there was evident partiality

or corruption in the arbitrators, or either of them; (3)

where the arbitrators were guilty of misconduct in

refusing to postpone the hearing, upon sufficient cause

shown, or in refusing to hear evidence pertinent and

material to the controversy; or of any other misbehavior

by which the rights of any party have been prejudiced;

or (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.

9 U.S.C. § 10(a).

App.73a

acting within the scope of his authority.” Loc. No. 7

United Food & King Soopers, 222 F.3d 1223, 1227

(10th Cir. 2000) (citing Misco, 484 U.S. at 38).

Finally, arbitrators exceed their powers when

they render decisions violating law or public policy.

See Misco, 484 U.S. 29, at 43 (citing W.R. Grace & Co.

v. Loc. Union 759, Int’l Union of United Rubber, Cork,

Linoleum & Plastic Workers of Am., 461 U.S. 757, 766

(1983)). The inclusion of some, but not all, permissive

clauses in interest arbitration awards violates

national labor policy. See NLRB v. Columbus Printing

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

1171 (5th Cir. 1976) (holding that contract arbitration

clauses “are not enforceable to perpetuate inclusion of

contract arbitration clauses continuously in contract

after contract,” but parties are free to “agree to

contract arbitration when they think it is mutually

advantageous and entitles them to enforce arbitration

over contract terms involving mandatory subjects of

bargaining and perhaps others”); Am. Metal Prod.,

Inc. v. Sheet Metal Workers Int’l Ass’n Loc. Union No.

104, 794 F.2d 1452, 1457 (9th Cir. 1986) (finding

“[a]n arbitration panel cannot make [the interest arbitration clause in the expired contract] self-perpetuating

by including an interest arbitration clause in the new

contract.”); Loc. 58, Int’l Bhd. of Elec. Workers, AFLCIO v. Se. Michigan Chapter, Nat. Elec. Contractors

Ass’n, Inc., 43 F.3d 1026, 1032 (6th Cir. 1995)

(explaining, “the law is clear that an arbitrator may

not use an interest arbitration clause as a means of

self-perpetuation, and that this type of “second

generation” interest arbitration clause cannot be

included over another party’s objection”).

App.74a

The award in this case takes its essence from the

agreement and comports with national labor policy.

There can be no question that the CIR was “arguably

construing or applying the contract.”10 See King

Soopers, 222 F.3d at 1227 (explaining that an

arbitrator’s award will be seen as drawing its essence

from the collective bargaining agreement if the

arbitrator is even arguably construing or applying the

contract and acting within the scope of his authority). The CIR considered the provisions of 2018 CBA

and included those provisions, in part, in the 2021

CBA. Section 1.03 of the 2018 CBA agreement states

“[t]his Agreement shall be subject to change or supplement at any time by mutual consent of the parties,”

suggesting that the permissive subjects were among

the CBA issues that could be negotiated. See 2018

CBA § 1.03. Moreover, the 2018 CBA also states that

any unresolved issues arising from the desire to

change or terminate the agreement may be “submitted

jointly or unilaterally to the Council for adjudication.”

Id. at 1.02(d). By referencing the “[u]nresolved issues

or disputes arising out of the failure to negotiate a

renewal or modification,” the parties intended the

arbitrators to determine all the terms of a potential

renewal or modification. Id.

Brent Electric’s insistence that the award exceeds

the arbitrators’ powers ignores the parties’ contractual

agreement to arbitrate. See McElroy’s, 500 F.3d at

1098. The obligation to negotiate various provisions in

a labor agreement may stem from either statute or

10 The Court previously determined that “the arbitration award

imposing the 2021 CBA is enforceable pursuant to the interest

arbitration agreement in the 2018 CBA.” Opinion and Order at

11, Nov. 16, 2022, ECF No. 45.

App.75a

contract. See generally Borg-Warner Corp., 356 U.S.

342. Section 29 of the United States Code imposes a

statutory duty on unions and employers to bargain in

good faith. See 29 U.S.C. §§ 158(a)(5), (b)(3). The

National Labor Relations Act, 29 U.S.C. §§ 151–169

(“NLRA”), established that an employer commits an

unfair labor practice by refusing to bargain collectively

with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an

agreement. 29 U.S.C. § 158(d).

Parties are also free to contractually agree to

negotiate permissive subjects. See Borg-Warner, 356

U.S. 342, 349; see also Sheet Metal Workers’ Int’l Ass’n,

Loc. Union No. 2 v. McElroy’s, Inc., 500 F.3d 1093,

1097 (10th Cir. 2007). The Tenth Circuit recognized

the distinction between statutory and contractual

obligations in McElroy’s. McElroy, a mechanical

contractor, sought to terminate its agreement with

the Local Union on the contract’s expiration date

despite the existence of an interest arbitration clause.

Id. at 1095. When McElroy refused to execute the

established renewal contract it argued that the national

labor policy allowed the termination of a pre-hire

agreement without any obligation to negotiate for a

renewal. Id. at 1096. The Tenth Circuit acknowledged the absence of a statutory obligation to renew

the agreement but found that the interest arbitration

to which McElroy had agreed created a contractual

obligation to renew the contract. Id. at 1097.11 See also

11 Brent Electric argues that McElroy’s is inapposite because in

that case the parties did not “challenge the arbitration award on

the basis that it incorporated non-mandatory, permissive subjects of bargaining.” Brent’s Resp. Br. at 9–10. Although the facts

in McElroy’s differ from those in the current case, the rationale

App.76a

Columbus Printing Pressmen, 543 F.2d 1161, 1171.

Thus, even absent a statutory duty to negotiate terms

by virtue of the NLRA, parties will be required to

negotiate where they have agreed to do so.12 McElroy’s,

500 F.3d at 1097. Parties’ freedom to contractually

agree to negotiate non-mandatory subjects of negotiation gives rise to a concomitant freedom to employ

in McElroy’s applies in this case. In McElroy’s, the court held

parties would be bound to negotiate a renewal agreement where

they had contractually agreed to do so in an interest arbitration

clause, even absent a statutory obligation. See McElroy’s, 500

F.3d at 1097.

12 Brent Electric cites to cases where the parties had failed to

agree to submit disputes over permissive terms, which are

inapposite. For example, in Terex Corp. v. Loc. Lodge 790 Int’l

Ass’n of Machinists, No. 95-cv-5190, 1996 WL 582744 (10th Cir.

1996) (unpublished) the Court of Appeals reversed the district

court’s grant of judgment on the pleadings rejecting the plaintiff’s

attempt to vacate an arbitral award arising from the parties’

collective bargaining agreement. However, the collective bargaining

agreement in that case limited the authority of the arbitrator to

“application and interpretation of the existing Agreement.” Id. at

*1. The 2018 CBA in this case contains no such limitation on the

scope of CIR’s authority.

Likewise, in Pipefitters Loc. Union No. 208 v. Mech. Contractors

Ass’n of Colo., 507 F. Supp. 935 (D. Colo. 1981), the district court

granted judgment for the plaintiff, rejecting non-mandatory subjects of bargaining which the arbitral award included in the

successor CBA. The arbitration clause in that case required both

parties to submit the dispute to arbitration, and the district court

determined the plaintiff had not agreed to arbitrate the challenged clauses. Id. at 936, 939 (“if the parties have not reached a

new agreement . . . the parties shall forthwith submit all points

of dispute [for arbitration]”) (internal brackets omitted). In

contrast, the arbitration clause in the 2018 CBA only requires

one party to submit issues to arbitration. See 2018 CBA § 1.02(d)

(“Unresolved issues or disputes . . . may be submitted jointly or

unilaterally to the Council for adjudication”).

App.77a

an interest arbitration clause to agree to arbitrate

such subjects.

Brent Electric’s argument that the arbitration

award violates a well-defined public policy fails because

national labor policy does not preclude parties from

contractually agreeing to the arbitration of permissive

subjects of negotiation, rather it precludes only

agreement to self-perpetuating permissive clauses.

Brent Electric’s analysis overlooks the character of

the disputes in the cases it cites in support of this

argument. First, Brent Electric relies on a series of

cases that concern second-generation interest arbitration clauses to argue that the award violates national

labor policy. See Brent’s Moving Br. at 12. A secondgeneration interest arbitration clause, also known as

a new contract arbitration clause, is a clause that

results from an interest arbitration and provides for

the unilateral invocation of interest arbitration. See

Columbus Printing Pressmen, 543 F.2d at 1163 n.4.

Second-generation interest arbitration clauses pose a

unique danger because they are self-perpetuating and

thus undermine, rather than reinforce, freedom of contract. See id. at 1171 (holding second-generation

interest arbitration clauses are unenforceable due to

the risk of self-perpetuation); Loc. 58, Int’l Bhd. of

Elec. Workers, AFL-CIO v. S.E. Mich. Ch., Nat’l Elec.

Contractors Ass’n, Inc., 43 F.3d 1026, 1032 (6th Cir.

1995) (severing second-generation interest arbitration

clause from arbitral award); Sheet Metal Workers Int’l

Ass’n Loc. Union No. 24 v. Architectural Metal Workers,

Inc., 259 F.3d 418, 430–32 (6th Cir. 2001) (invalidating

second-generation interest arbitration clause in arbitral

award and remanding to exclude all non-mandatory

provisions); American Metal Prods, Inc. v. Sheet Metal

App.78a

Workers Int’l Ass’n Loc. Union No. 104, 794 F.2d 1452

(9th Cir. 1986) (invalidating second-generation interest

arbitration clause in arbitral award); Sheet Metal

Workers Int’l Ass’n Loc. 14 v. Aldrich Air Conditioning,

717 F.2d 456 (8th Cir. 1983) (invalidating secondgeneration interest arbitration clause in arbitral

award). The 2021 CBA does not contain a secondgeneration interest arbitration clause.13

Secondly, Brent Electric cites out of circuit cases

for the proposition that any permissive clause imposed

by interest arbitration violates national labor policy.

See Sheet Metal Workers Loc. Union No. 54 v. E.F. Etie

Sheet Metal Co., 1 F.3d 1464 (5th Cir. 1993) cert.

denied, 516 U.S. 1117 (1994) (citing NLRB v. Sheet

Metal Workers Int’l Ass’n Local Union No. 38, 575 F.2d

394 (2d Cir. 1978)). Brent Electric’s reading of these

13 The Court previously determined the interest arbitration

clause at issue here was valid and did not reach the issue of

whether a self-perpetuating arbitration clause, also called a secondgeneration interest arbitration clause, is valid. See Opinion and

Order at 9, Nov. 17, 2022, ECF No. 45. Interest arbitration is not

self-perpetuating here because the CIR included an arbitration

clause in the 2021 CBA requiring both parties to submit a future

dispute to the CIR:

By mutual agreement only, the Chapter, or an

Employer withdrawing representation from the

Chapter or not represented by the Chapter, may

jointly, with the Union, submit the unresolved issues

to the Council on Industrial Relations for adjudication. Such unresolved issues shall be submitted no

later than the next regular meeting of the Council

following the expiration date of this Agreement or any

subsequent anniversary date. The Council’s decisions shall be final and binding.

2021 CBA § 1.02(e).

App.79a

cases misapplies Supreme Court precedent regarding

statutorily mandated subjects of negotiation to cases in

which parties have contractually agreed to negotiate

non-mandatory terms and are therefore unpersuasive.

See Brent’s Moving Br at 11–13. First, in E.F. Etie the

Fifth Circuit invalidated non-mandatory provisions

requiring contributions to an industry fund and limiting

the employer’s ability to subcontract to nonunion

employees. E.F. Etie, 1 F.3d at 1476. The court

invoked the Second Circuit’s decision in Local Union

No. 38 which itself relied upon Allied Chem. & Alkali

Workers of Am., Loc. Union No. 1 v. Pittsburgh Plate

Glass Co., Chem. Div., 404 U.S. 157 (1971). Brent

Electric cites these cases for the proposition that nonmandatory subjects in arbitration awards are “not

enforceable” and “nonmandatory provisions in arbitration award[s] are void.” See Brent’s Moving Br. at

12. A close reading of these cases reveals that they

cannot support the position Brent Electric asserts.

As a preliminary matter Allied Chemical did not

involve interest arbitration. Rather, the court in Allied

Chemical, addressed whether a party’s unilateral midterm modification of a collective-bargaining contract

terms constitutes an unfair labor practice under 29

U.S.C. § 158(d). Allied Chem., 404 U.S. at 183. The

court held that a unilateral and midterm modification

is only an unfair labor practice when it changes a term

that is a mandatory, rather than permissive, subject

of bargaining. Id. at 185. Further, the court explained

that the remedy for a unilateral mid-term modification

to a permissive term lies in an action for breach of contract not in an unfair-labor-practice proceeding. Id. at

188.

App.80a

Nonetheless, in Local Union No. 38, the Second

Circuit appeared to read Allied Chemical to limit

when non-mandatory terms could not be resolved in

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

399 (“Thus, 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 non-mandatory subjects

from the collective bargaining agreement”).14 However,

the Second Circuit later clarified that Local Union No.

38 applied only where there was no pre-existing contract:

The Company’s initial argument against

arbitrability contends that product level is

not a mandatory subject of bargaining and

for that reason is beyond the scope of arbitration. The argument rests on an overreading of

our opinion in NLRB v. Sheet Metal Workers

Local 38, 575 F.2d 394 (2d Cir. 1978). That case

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. . . . That decision,

14 In adopting its position, the Local 38 court noted “the Board

previously has espoused the position we now adopt.” NLRB. v.

Sheet Metal Workers Local 38, 575 F.2d 394 (2d Cir. 1978) (citing

Columbus Printing Pressmen, 543 F.2d at 1169). Yet in rejecting

a self-perpetuating arbitration clause in Pressmen, the Fifth

Circuit noted nonetheless that parties are free to agree to contract arbitration when they think it is mutually beneficial, and

the clause “entitles them to enforce arbitration over contract

terms involving mandatory subjects of bargaining and perhaps

others.” See id.

App.81a

however, did not place a similar limit on the

arbitrability of disputes arising under an

existing contract. Indeed, Sheet Metal Workers

explicitly recognized the parties’ freedom “‘to

agree or not to agree’” with respect to subjects of nonmandatory bargaining (quoting

Borg–Warner, 356 U.S. 342, at 398). 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 Sheet

Metal Workers, labor law, or the Arbitration

Act precludes arbitration of a dispute concerning the meaning or application of that

provision.

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

Brewery Workers Union, Loc. 812, Int’l Bhd. of

Teamsters, 39 F.3d 408, 410 (2d Cir. 1994). Following

Local Union No. 38, the court in E.F. Etie, invoked

Local Union 38, stating “[i]nsofar as an interest

arbitration proceeding forced a party to put nonmandatory issues on the table, it was unenforceable as

contrary to that policy.” E.F. Etie Sheet Metal Co., 1

F.3d 1464, 1476 (5th Cir. 1993).

Brent Electric’s reading of E.F. Etie and Local

Union 38 to prohibit interest arbitration of all nonmandatory subjects is incorrect because neither case

held that interest arbitration could not resolve nonmandatory subjects when the parties had agreed to

interest arbitration for non-mandatory subjects. Further, Allied Chemical did not involve interest arbitration. See Allied Chem., 404 U.S. 157. The court’s

statements in Allied Chemical regarding permissive

subjects of arbitration related to grievance arbitration,

App.82a

i.e., just because a party agreed to grievance arbitration

of a permissive subject once, does not mean that it

must agree to grievance arbitration, or any permissive

clause going forward. See id. at 188. Indeed, the

Second Circuit subsequent to both E.F. Etie, and Local

Union 38 clarified that “[i]f 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 Sheet Metal Workers,

labor law, or the Arbitration Act precludes arbitration of a dispute concerning the meaning or application of that provision.” Coca-Cola Bottling, 39 F.3d at

410.

Section 1.02 of the 2018 CBA provides that

“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 Council for adjudication . . . The Council’s decisions shall be final and binding.” 2018 CBA § 1.02(d).

Here, the parties agreed to submit unresolved issues in

the 2018 CBA, including permissive subjects to arbitration.

III. Addendum IV

Brent Electric separately argues that the CIR’s

award forces Brent Electric to enter into a “freestanding memorandum of understanding” or a “new tripartite

agreement” between itself, the Union and NECA.

Brent’s Moving Br. at 20–21; Brent’s Response Br. at

5–6. The Union responds that “2018 CBA Section

1.02(d) set no limits on the provisions that the CIR

could include in an awarded contract,” Addendum

Four was included in the 2018 CBA, and its inclusion

App.83a

in the award is beyond this Court’s review. Union’s

Resp. Br. at 23–25.

Brent Electric contractually agreed to submit any

disputes or unresolved issues concerning the negotiation of a renewal agreement to the 2018 CBA to

arbitration. Addendum Four was included in the 2018

CBA. See Brent Elec. Co. v. Int’l Bhd. of Elec. Workers

Local Union No. 584, No. 4:21-cv-00246, 2022 WL

16973249, 13* n.9 (N.D. Okla. Nov. 16, 2022); see also

Brent’s First SOF ¶¶ 10, 14; Union’s First SOF ¶¶ 10,

14. The CIR’s inclusion of Addendum Four as part of

the 2021 CBA is a determination of the arbitrator

which will only be set aside because the CIR was not

“arguably construing or applying the contract and

acting within the scope of his authority.” See King

Soopers, 222 F.3d. 1223,1227 (citing Misco, 484 U.S. 29,

at 38). Brent Electric fails to demonstrate that the

arbitrator was arguably construing or applying the

contract in a manner that was beyond the scope of its

authority.

IV. Audit

The Union asks the Court to appoint an accountant

and order an audit of Brent Electric’s business records

at Brent Electric’s expense. See Union’s Moving Br. at

19; see also Union’s Reply at 3. The Union argues that

an audit is appropriate because Brent Electric has

refused to implement the CIR’s award, and that an

audit will ensure or confirm Brent Electric’s compliance with the 2021 CBA. See Union’s Moving Br. at

19. In the event of an appeal by Brent Electric, the

Union also asks that the Court order Brent Electric to

preserve its payroll-related business records for work

performed since June 1, 2021. See Union’s Moving Br.

App.84a

at 20. Brent Electric contests the request for an audit

in a one-sentence subheading of its brief and adds that

the cost of any ordered audit should be paid by the

Union and that both parties should participate in the

selection of an accountant. See Brent’s Resp. Br. at 10.

Brent Electric makes no response to the Union’s

request that the Court order it to preserve its payroll

related business records concerning bargaining unit

work performed since June 1, 2021.

The request for an audit is premature and

therefore the Court declines to impose this remedy in

connection with the confirmation of the award. Although the Union cites one out-of-circuit case where a

court ordered an audit under similar circumstances,

see Union’s Moving Br. at 19–20, the Union fails to

demonstrate that Brent Electric will not comply with

an order from this Court confirming the award.15

Should Brent Electric fail to comply with this Court’s

order, the Union may then seek an order from this

Court to enforce its judgment. Fed. R. Civ. P. 69(a)(1).

In order to preserve the efficacy of any future enforcement order, the Court will however order Brent Electric

to preserve its payroll-related business records for

work performed from June 1, 2021, until the conclusion of all appeals from this order.

V.

Attorneys’ Fees

The Union seeks an award of attorneys’ fees,

claiming that Brent Electric lacked justification for its

noncompliance with the CIR’s award. See Union’s

Moving Br. at 21–24; see also Union’s Reply, ECF No.

15 Nor does the Union cite any authority for its view that it should

select an auditor and Brent Electric should bear the costs.

App.85a

79 at 4. Brent Electric argues that attorneys’ fees are

unwarranted because there is no evidence that it

“acted in bad faith, vexatiously, wantonly, or for

oppressive reasons” by challenging the CIR’s award.

See Brent’s Resp. Br. at 11.

In an action brought by a union to enforce an arbitration award, “the allowance of attorneys’ fees is discretionary.” See Fabricut, Inc. v. Tulsa Gen. Drivers,

Warehousemen & Helpers, Loc. 523, 597 F.2d 227, 230

(10th Cir. 1979). A successful party may recover attorneys’ fees “when his opponent has acted in bad faith,

vexatiously, wantonly, or for oppressive reasons.” See F.

D. Rich Co. v. U. S. for Use of Indus. Lumber Co., 417

U.S. 116, 129 (1974). Further, the “district court has

authority to award attorneys’ fees where it determines

that a party has without justification refused to abide

by the award of an arbitrator.” See Int’l Union of Dist.

50, United Mine Workers of Am. v. Bowman Transp.,

Inc., 421 F.2d 934, 935 (5th Cir. 1970) (finding that

under the facts of the particular case, the District

Court did not abuse its discretion in awarding attorneys’ fees and costs incurred by the union).

In Fabricut, the Tenth Circuit affirmed the District Court’s decision to deny an attorney fee award

because the plaintiff, “did not act in bad faith and was

not without justification for challenging the arbitrator’s award.” See Fabricut, Inc. v. Tulsa Gen.

Drivers, Warehousemen & Helpers, Loc. 523, 597 F.2d

227, 230 (10th Cir. 1979). Rather, the Tenth Circuit

considered the plaintiff’s claim that the award exceeded

the arbitrator’s authority was made on substantial

grounds and in good faith. See Fabricut, Inc., 597 F.2d

at 230.

App.86a

Despite Brent Electric’s incorrect understanding

of Tenth Circuit and out-of-circuit precedent, Brent

Electric’s claims fail to rise to the level of vexatious,

wanton, or oppressive action, and the Union offers no

evidence that the claims have been asserted in bad

faith. See Fabricut, Inc., 597 F.2d at 230. Although

Brent Electric’s arguments concerning the relevant

precedent fail to persuade, the Court cannot conclude

that they are without justification. Therefore, the Court

denies the Union’s request for an award of attorneys’

fees.

CONCLUSION

For the foregoing reasons, Brent Electric’s motion

for summary judgment, see ECF No. 68, is denied. The

Union’s motion for summary judgment, see ECF No.

76, is granted in part and denied in part. The arbitration decision and award of the CIR dated June 4, 2021,

is confirmed. The Union’s request for an audit of Brent

Electric’s business records is denied. The Union’s

request for attorneys’ fees is also denied. Brent Electric

shall preserve its payroll-related business records for work

performed from June 1, 2021, through the pendency of

any appeal taken from this Court’s decision. The

Court will enter a separate judgment in accordance

with Federal Rule of Civil Procedure 58.

/s/ Claire R. Kelly

Judge

Dated: September 6, 2023

New York, New York

 Judge Claire R. Kelly, of the United States Court of International

Trade, sitting by designation.

App.87a

OPINION AND ORDER,

U.S. DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

(NOVEMBER 16, 2022)

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

________________________

BRENT ELECTRIC CO., INC.,

Plaintiff/CounterDefendant,

v.

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS LOCAL UNION NO. 584,

Defendant/CounterPlaintiff.

________________________

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

Before: Claire R. KELLY, Judge.

OPINION AND ORDER

In this case, the parties—an employer and a labor

organization—failed to conclude a new collective

bargaining agreement, and the labor organization

submitted the dispute to arbitration, which issued an

award imposing a new collective bargaining agreement

(“2021 CBA”) on the parties. The employer objects to

the terms of that new agreement and brings this

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action to vacate the arbitration award. The labor

organization counterclaims to enforce the arbitration

award. Before the Court is defendant/counter-plaintiff

International Brotherhood of Electrical Workers Local

Union 584’s (“the Union”) motion to dismiss the first

amended complaint. See ECF No. 18 (“Def. Br.”);

ECF No. 10 (“FAC”). The Union argues the plaintiff/counter-defendant Brent Electric Company, Inc.’s

(“Brent Electric”) complaint fails to state a claim upon

which relief can be granted and thus the Court should

dismiss the complaint.1 Def. Br. at 1; see also Def.’s

Reply to Pl.’s Resp. Opp. [Def. Br.] at 10, ECF No. 24

(“Def. Reply”).

BACKGROUND2

Brent Electric is an Oklahoma corporation providing electrical service and is an employer affecting

1 The Union also requests the Court, in the alternative, dismiss

duplicative and/or claim-splitting allegations identical or like

those Brent Electric asserts in another case pending before this

Court, Case No. 21-cv-00103. Def. Br. at 1. In that case, Brent

Electric provided notice to the Union and the National Electrical

Contractors Association (“NECA”) that it was terminating participation in the Union pension fund under the Memorandum of

Understanding (“MOU”) located in Addendum Four of the 2018

CBA. FAC ¶¶ 17–22. In response, the Union submitted a

grievance to the Labor Management Committee under the 2018

CBA, claiming Brent Electric violated the MOU. Id. ¶ 23. Brent

Electric lost the grievance, and the Union filed a complaint to

enforce the grievance decision in Case No. 21-CV-00103, in which

Brent Electric has counterclaimed. Id. ¶¶ 24–26. Because the

Court determines Brent Electric fails to state a claim to vacate

the arbitration award, the Court need not address the Union’s

alternative argument.

2 The Court includes facts from the first amended complaint and

assumes them to be true for the purpose of this Opinion and

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commerce under section 301 of the Labor Management

Relations Act, 29 U.S.C. § 185 (2022) (“LMRA”). FAC

¶ 2. The Union is a labor organization under the

LMRA. Id. ¶ 3. Brent Electric signed an agreement in

1996 authorizing the National Electrical Contractors

Association (“NECA”) to represent it in collective

bargaining with the Union and agreeing to be bound

to agreements between NECA and the Union. Id.

¶¶ 6–8. A series of collective bargaining agreements

subsequently bound Brent Electric, including an

agreement effective from June 1, 2018, to May 31, 2021

(“2018 CBA”). Id. ¶¶ 9–11. Brent Electric terminated

its agreement with NECA to act on its behalf on September 18, 2020, and informed the Union it intended

to terminate the 2018 CBA, prior to the deadlines for

notice of termination in the representation agreement

with NECA and in the 2018 CBA. Id. ¶¶ 12–15.

Brent Electric informed the Union it intended to

negotiate the terms of a new CBA and addressed

provisions from the 2018 CBA it called “permissive

subjects of bargaining.” Id. ¶¶ 27–30. Brent Electric

argued that federal law does not require parties to

negotiate permissive subjects of bargaining. Id. ¶ 30.

The Union informed Brent Electric on April 9, 2021, it

would submit the unresolved issues between the

parties to the Council on Industrial Relations (“CIR”)

for its consideration under the terms of the 2018 CBA.

Id. ¶ 31. Brent Electric informed the CIR it objected

to the Union’s unilateral submission and attached a

brief arguing against inclusion of the permissive subjects of bargaining in the new CBA. Id. ¶¶ 32–34. The

CIR issued a preliminary decision and forwarded it to

Order. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56

(2007); FAC.

App.90a

Brent Electric on May 27, 2021. Id. ¶ 35. The preliminary decision included a list of matters under dispute.

Id. ¶ 36. Brent Electric objected to what it called errors

and omissions in the CIR’s preliminary decision on

May 30, 2021, and the CIR issued a second decision on

June 4, 2021, including provisions Brent Electric

considers to be permissive subjects of bargaining. Id.

¶¶ 37–40. Brent Electric received the CIR’s final

award on June 28, 2021, which was identical to CIR’s

second decision. Id. ¶¶ 41–43.

The final award contained, and Brent Electric

objects to, the following clauses:

Section 1.02(c) is an evergreen clause as it

mandates that the terms of the collective

bargaining agreement will remain in effect

at last [sic] 10 days after the expiration of the

Agreement. . . .

Section 1.02(c) and 1.09 . . . [t]he evergreen

provision in combination with the status quo

provision mandate that the Imposed

Agreement remain in effect past the term of

the Imposed Agreement until: (1) the Union

agrees to a proposed contract change; (2) the

Union and Brent Electric jointly and

voluntarily agree to interest arbitration

before CIR to resolve outstanding issues; or

(3) either party provides a subsequent ten

(10) day notice to terminate the agreement,

an act that either party allegedly can take to

forestall termination of the collective bargaining agreement. . . .

Section 1.03 . . . is an international union

approval provision. . . .

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Section 2.01 . . . is an employer qualifications

provision which permits the Union to determine the status of Brent Electric for that

purpose. . . .

Section 2.05(a)–(c) . . . deals with surety

bonds. . . .

Section 2.06(b) . . . requires a joint negotiating

committee and requires that the committee

be comprised of four individuals per

party. . . .

Section 2.07 . . . addresses Non-Resident

Employees (Portability). . . .

Section 2.11 . . . involve[s] discipline of the

Union’s members – Internal Union Discipline

of Members. . . .

Section 2.12 . . . covers the appointment of

stewards . . . and deals with the relationship

between the Union and who it chooses to act

as its agent. . . .

Section 3.05(b) references at subsection 6 to

“LMCC” and subsection 7 “NLMCC” . . . each

deal with industry promotion fund issues. . . .

Section 3.08 . . . deals with an Advertising

Fund. . . .

Section 3.09 . . . addresses a political action

committee (“PAC”) fund. . . .

Section 3.10 . . . deals with the employer

deduction from employee payroll checks of

Advertising Fund and PAC fund obligations. . . .

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Section 6.01 (second and fourth paragraphs)

. . . indicates that Brent Electric will be

bound to a National Electrical Benefit Fund

trust agreement which . . . contains penalty

clauses. . . .

Section 6.02 (first sentence) . . . indicates that

Brent Electric will be bound to a health

insurance trust agreement which . . . contains

penalty clauses. . . .

Section 6.03 (including 3.05, number 6 and

6.05 (c)) . . . deal with the Local Pension

Plan. . . .

Sections 6.03 and 6.04 (a) (first sentence in

each) . . . indicate that Brent Electric will be

bound to Local Pension and Profit-Sharing

Plan trust agreements which . . . contain

penalty clauses. . . .

Section 6.05(c) . . . contains a reference to the

“LMCC” and “NLMCC”. . . .

Section 6.06 . . . contains a reference to

Sections 3.08 and 3.09 (Advertising Fund

and PAC Fund, respectively). . . .

Section 6.07 (b) . . . addresses fringe benefit

remedies at the end of sentence and therefore

deals with penalty clauses. . . .

Articles VII and VIII . . . also deal with the

“LMCC” and “NLMCC”. . . .

The International Approval Reference above

the signature lines . . . may not be mandated. . . .

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Addendum Three . . . addresses the “LMCC”

and “NLMCC,”. . . .

Addendum Four – MOU . . . is a separate

agreement reached by third parties, NECA

and OESCO, with the Union. . . .

The newly imposed and created MOU also

makes the parties subject to the current

collective bargaining agreement’s evergreen

clause. . . .

Id. ¶¶ 52–109.

After filing a complaint on June 8, 2021, see ECF

No. 2, Brent Electric filed its first amended complaint on July 1, 2021, claiming that the Court must

vacate and set aside CIR’s arbitration award under

the LMRA and the Federal Arbitration Act, 9 U.S.C.

ch. 1 (“FAA”). FAC ¶¶ 45–51.

JURISDICTION AND STANDARD OF REVIEW

The Court has jurisdiction over the parties’ claims

arising under section 301 of the LMRA3 and section

10 of the FAA pursuant to 28 U.S.C. § 1331.

3 Section 301 of the LMRA provides that “Suits for violation of

contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined

in this chapter, or between any such labor organizations, may be

brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” 29

U.S.C. § 185. Parties may bring actions to enforce arbitration

awards under section 301 of the LMRA even though the conduct

involved amounts to an unfair labor practice under the National

Labor Relations Board’s jurisdiction. Hines v. Anchor Motor

Freight, Inc., 424 U.S. 554, 562 (1976).

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On a Rule 12(b)(6) motion, the court assesses

whether the plaintiff’s complaint is legally sufficient

to state a claim for relief. Broker’s Choice of Am., Inc.

v. NBC Universal, Inc., 757 F.3d 1125, 1135–36 (10th

Cir. 2014). A complaint is legally sufficient if it contains factual allegations that state a plausible claim

for relief on its face. Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007). Although a complaint need

not contain detailed factual allegations, it must still

contain more than mere labels, legal conclusions, and

a “formulaic recitation” of the claim’s elements. Id. at

555. A plaintiff states a plausible claim when the

plaintiff pleads facts allowing the court to reasonably

infer the defendant is liable for the allegations.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On a

motion to dismiss, the court considers the complaint

and documents it incorporates, and any matters the

court decides to judicially notice. Tellabs, Inc. v.

Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

The court accepts as true all well pled factual allegations. Twombly, 550 U.S. at 555–56.

DISCUSSION

The Union argues the Court should dismiss Brent

Electric’s first amended complaint because it lacks

grounds for the Court to vacate the arbitration award.

Def. Br. at 6–24; Def. Reply at 1–10. Brent Electric

argues it has pled sufficient facts to state a claim for

vacating the arbitration award under the LMRA and

the FAA because the award violates public policy and

exceeds the CIR’s authority by including permissive

provisions in the 2021 CBA. Pl.’s Resp. to [Def. Br.] at

9–16, 18–20, ECF No. 21 (“Pl. Br.”). Brent Electric also

argues the CIR exceeded its powers by imposing new

App.95a

obligations on Brent Electric, drawing on a prior

third-party agreement that is separate from the 2018

CBA. Id. at 16–18. For the following reasons, the

Court determines Brent Electric has failed to state a

claim and dismisses its claim to vacate the arbitral

award.

Under section 10 of the FAA, courts set aside

awards when arbitrators exceed their powers.4 Courts

may vacate an award for the following reasons:

(1) where the award was procured by corruption,

fraud, or undue means;

(2) where there was evident partiality or corruption in the arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing,

upon sufficient cause shown, or in refusing

to hear evidence pertinent and material to

the controversy; or of any other misbehavior

by which the rights of any party have been

prejudiced; or

(4) where the arbitrators exceeded their powers,

or so

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