Litton Financial Printing Division Division of Litton Business Systems Inc. v. National Labor Relations Board/Dissent Stevens

Justice STEVENS, with whom Justice BLACKMUN and Justice SCALIA join, dissenting.

As the Court today recognizes, an employer's obligation to arbitrate postcontract termination grievances may arise by operation of labor law or by operation of the expired collective-bargaining agreement. I think the Court is correct in deferring to the National Labor Relations Board's line of cases and holding that a statutory duty to arbitrate grievances does not automatically continue after contract termination by operation of labor law, see ante, at 198-203. I also agree with the Court's recognition that notwithstanding the absence of an employer's statutory duty to arbitrate posttermination grievances, a contractual duty to arbitrate such grievances may nevertheless exist, see ante, at 203-208. I part company with the Court, however, at Part IV-C of its opinion, where it applies its analysis to the case at hand. Because I am persuaded that the issue whether the posttermination grievances in this case "arise under" the expired agreement is ultimately an issue of contract interpretation, I think that the Court errs in reaching the merits of this issue rather than submitting it to an arbitrator in the first instance, pursuant to the broad agreement of the parties to submit for arbitration any dispute regarding contract construction.

In Nolde Bros., Inc. v. Bakery Workers, 430 U.S. 243, 97 S.Ct. 1067, 51 L.Ed.2d 300 (1977), a union brought suit against an employer to compel arbitration of the employer's refusal to give severance pay under an expired collective-bargaining agreement to employees displaced by a plant closing. The expired agreement provided that employees who had worked for the employer for at least three years were entitled to severance pay if permanently displaced from their jobs. The union claimed that the right to such severance pay had "accrued" or "vested" during the life of the contract. The employer disavowed any obligation to arbitrate, arguing that the contract containing its commitment had terminated and the event giving rise to the dispute-the displacement of employees during the plant closing-occurred after the contract had expired.

We ruled in favor of the union in Nolde Bros. Integral to our decision was the conclusion that whether or not the right to severance pay had accrued during the contract, and thus whether or not the employer's refusal to offer severance pay was an arbitrable grievance after the contract had expired, was itself a question of contract interpretation. "There can be no doubt that a dispute over the meaning of the severance-pay clause during the life of the agreement would have been subject to the mandatory grievance-arbitration procedures of the contract. Indeed, since the parties contracted to submit 'all grievances' to arbitration, our determination that the Union was 'making a claim which on its face is governed by the contract' would end the matter had the contract not been terminated prior to the closing of the plant." Id., at 249-250, 97 S.Ct., at 1071 (citation omitted).

Like the expired agreement between the Union and Nolde Bros. to arbitrate "all grievances," the terminated agreement between Litton and the Union in this case broadly mandates arbitration of " '[d]ifferences that may arise between the parties hereto regarding this Agreement and any alleged violations of the Agreement, [and] the construction to be placed on any clause or clauses of the Agreement.' " Ante, at 194. Because the Union here alleged that the seniority clause of the expired agreement was on its face violated by the posttermination layoffs, determining whether the union's grievances arise under the contract requires construction of the seniority provision of the contract and determination of whether this provision applies to posttermination events. As the Court itself notes: "[T]he Board's decision not to order arbitration of the layoff grievances rests upon its interpretation of the Agreement."   Ante, at 202 (emphasis added).

In my opinion, the question whether the seniority clause in fact continues to provide employees with any rights after the contract's expiration date is a separate issue concerning the merits of the dispute, not its arbitrability. Whatever the merits of the Union's contention that the seniority-rights provision survives the contract's termination date, I think that the merits should be resolved by the arbitrator, pursuant to the parties' broad contractual commitment to arbitrate all disputes concerning construction of the agreement, rather than by this Court.

I respectfully dissent.