Arbitrator or Court

The Supreme Court rendered an interesting decision in a case where an employer sued a local union for alleged violations of the no strike provisions of a collective bargaining agreement and an international union for tortious interference with the CBA. The local union claimed there was no violation of the CBA because it was not ratified as of the time of the alleged violation of the no strike clause. The 7 member majority opinion (Thomas) held the ratification date issue was one for a court to decide, rather than an arbitrator. A unanimous court refused to extend "federal common law" to include tortious interference with a contract  as a claim cognizable under LMRA § 301. But the really interesting part is after the jump.
The majority opinion seems straight forward. The arbitration clause covered all disputes "arising under" the CBA. The Court's majority notes there is no CBA until ratification. The union asserted the ratification occurred after the actions complained of by the employer, and that as a result the no strike clause did not bar the strike. The Court's majority found the issue of whether ratification occurred was one of formation of the agreement, thus subject to judicial determination. The dissent (Sotomayor) persuasively notes that it is undisputed that the parties reached a binding agreement in December of 2004, which by its terms was made retroactive to the May 2004 expiration of the prior agreement. The dispute surely "arises under" the CBA. The employer consistently argued the case involved a formation dispute, and the union failed to raise its counter argument until its merits brief.

Indeed, by declining to consider the plain terms of the parties’ agreement, the majority offers little more than “an opinion advising what the law would be upon a hypothetical state of facts.”  Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 241 (1937).  In view of the CBA’s effective date, I would hold that the parties agreed to arbitrate the no-strike dispute, including Local 287’s ratification-date defense, and I would affirm the judgment below on this alternative ground.