Jottings By An Employer's Lawyer

Wednesday, August 11, 2004

When It's Over, It's Over - Same Song, Second Verse


Sometimes a court seems stuck on a theme, but consistency of principles is what the law is (or should be) about. Earlier as reported here, the 5th Circuit made clear that after a contract ends on its own terms, there can be no "waiver" of enforcement rights, since there is nothing left to waive. Now, in IBEW Local 898 v. XL Electric, Inc. (5th Cir. 8/10/04) [pdf] the Court affirms the district court's refusal to enforce an arbitration award for essentially the same reason.

XL was a party, by a letter of assent, to a collective bargaining agreement between the Red River National Electric Contractors Association and the IBEW. XL terminated the contract in accordance with its terms and sought to negotiate its own agreement. Failing to reach agreement, XL notified the Union it was no longer bound and acted accordingly. Disagreeing, the Union submitted the matter to "interest arbitration" provided under the CBA and obtained an award that XL was bound to a new agreement. When XL challenged enforcement of the award, the district court found that having properly canceled the agreement, XL was no longer bound to the interest arbitration provision, so the award should not be enforced. The IBEW argued, unsuccessfully, that whether the former agreement was properly terminated was for the arbitrator to decide. Wrong, says the 5th Circuit. The question of whether there is an agreement to arbitrate is a decision for the Court, not for the arbitrator.

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