International Union, United Mine Workers of America v. Big Horn Coal Company, A Wyoming Corporation, 916 F.2d 1499, 10th Cir. (1991)

916 F.
2d 1499
135 L.R.R.M. (BNA) 2663, 116 Lab.Cas. P 10,363
INTERNATIONAL UNION, UNITED MINE WORKERS OF

AMERICA,
Plaintiff-Appellee,
v.
BIG HORN COAL COMPANY, a Wyoming corporation,
Defendant-Appellant.
No. 89-8067.
United States Court of Appeals,

Tenth Circuit.
Oct. 15, 1990.
Rehearing Denied Sept. 13, 1991.
Earl V. Brown, Jr. of United Mineworkers of America, Washington, D.C.

(John L. Quinn and Robert M. Weaver of Longshore, Nakamura & Quinn,
Birmingham, Ala., on the brief) for plaintiff-appellee.
Sandra R. Goldman (Jeffrey T. Johnson with her on the briefs) of Holland
& Hart, Denver, Colo., for defendant-appellant.
Before HOLLOWAY, Chief Judge, McWILLIAMS, Circuit Judge, and
BRATTON, Senior District Judge. *
PER CURIAM.
This appeal arises from an order of the district court granting summary
judgment for the United Mine Workers of America (the "Union") against Big
Horn Coal Company (the "Company") and denying the Company's crossmotion for summary judgment. 715 F.Supp. 1060. The disputed issue is
whether the Company has an obligation to submit to arbitration certain
grievances which arose after the expiration date of the parties' collective
bargaining agreement. The lower court held as a matter of law that such an
obligation exists in this case. We find no contract between the parties upon
which to base jurisdiction under Section 301 of the Labor-Management
Relations Act, 29 U.S.C. Sec. 185(a). Accordingly, we reverse.

2
In the spring of 1987, Union and Company officials began negotiation efforts to
reach agreement on a new labor-management contract. These efforts extended
past the June 1, 1987 expiration date of the parties' collective bargaining
agreement but no new agreement was reached. On July 1, 1987, after
negotiations reached an impasse, the Company implemented its "last and final
offer," an offer which, from all appearances, included the grievance and
arbitration provision of the expired contract.1
The employees continued thereafter to work until October 5, 1987, when Local
Union 2055, comprised of mine worker employees at Big Horn Coal
Company's Sheridan, Wyoming mine, commenced a strike. The strike
continued until on or about June 27, 1988, at which time the Union, on behalf
of Local Union 2055 members, notified the Company of the employees'
unconditional offer to return to work.
The Company, however, refused to reinstate eighteen of the striking employees,

alleging that they had been engaged in serious strike-related misconduct. The
Union filed grievances on behalf of each employee. The Union and the
Company processed these grievances through the steps of the grievance
procedure without resolution. At the conclusion of the last meeting the Union
demanded arbitration. The Company refused to submit to arbitration on the
grounds that the grievances were not arbitrable.
The Union brought this action pursuant to Section 301 of the LaborManagement Relations Act, 29 U.S.C. Sec. 185, seeking an order to compel the
Company to arbitrate the grievances of the employees denied reinstatement.
The Union argued that the Company's unilateral implementation of its last offer
extended the Company's contractual obligation to arbitrate.
The district court, in granting the Union's summary judgment motion and
denying the Company's motion, held that the parties intended to abide and be
bound by the unchanged terms of the expired collective bargaining agreement.
R. Vol. I, Tab 21, p. 7. The court found that the Company's extension of the
final offer and the employees' continuation to work after the offer was
implemented constituted objective manifestations of the parties' mutual assent
to contract. Id. Upon review of the district court's decision, we utilize the same
standard employed by the court below and examine the conclusions reached de
novo. Fed.R.Civ.P. 56(c); Ewing v. Amoco Oil Co., 823 F.2d 1432, 1437 (10th
Cir.1987).
In United Food and Commercial Workers International Union v. Gold Star

Sausage Co., 897 F.2d 1022 (10th Cir.1990), we rejected the position taken by
the labor union therein that federal courts should enforce an arbitration
provision included within the terms of a unilaterally-implemented last offer. Id.
at 1026-27. Employer implementation of a last and final offer is, by itself,
insufficient to invoke jurisdiction absent some manifestation of acceptance of
the offer sufficient to create a contract. Id. at 1026. As we noted in Gold Star,
jurisdiction under Section 301(a) of the Labor-Management Relations Act
arises when redress is sought for " 'violations of contracts between an employer
and a labor organization.' " Id., citing 29 U.S.C. Sec. 185(a) (emphasis supplied
in Gold Star ). Thus, simply spotlighting management's exercise of its statutory
right to implement its last and final offer does not establish the contractual basis
necessary for jurisdiction. Milwaukee Typographical Union No. 23 v. Madison
Newspapers, Inc., 444 F.Supp. 1223, 1227 (W.D.Wis.1978), aff'd mem., 622
F.2d 590 (7th Cir.1980).
The contract between the parties required for jurisdiction need not be a written,
signed collective bargaining agreement, but may exist as any informal
agreement between the parties significant to the maintenance of labor peace
between them. Retail Clerks Int'l Ass'n, Local Unions Nos. 128 and 633 v. Lion
Dry Goods, Inc., 369 U.S. 17, 28, 82 S.Ct. 541, 548, 7 L.Ed.2d 503 (1962). It
suffices that the parties' intent to abide by the agreed-upon provisions of any
such informal agreement is in some manner manifest. Bobbie Brooks, Inc. v.
Int'l Ladies Garment Workers Union, 835 F.2d 1164, 1168 (6th Cir.1987); see
also United Paperworkers Int'l Union v. Wells Badger Industries, Inc., 835 F.2d
701, 704 (7th Cir.1987).
In Gold Star, we noted that in one case an employer's implementation of its last
offer constituted an invitation to enter into an interim unilateral contract,
accepted by the employees' continued performance. 897 F.2d at 1026, citing
Taft Broadcasting Co. v. NLRB, 441 F.2d 1382 (8th Cir.1971). Yet, in Gold
Star we found no unilateral contract. The Union therein had expressly rejected
the employer's last offer. Thus, the fact that the Gold Star employees continued
to work after the rejection did not constitute the acceptance necessary to form a
contract, and the Gold Star court was without jurisdiction to proceed under
Section 301 of the Labor-Management Relations Act. 897 F.2d at 1024, 1026.
10
The facts of the present case likewise suggest implicit rejection of the
employer's offer. The lower court's determination that a "legal relationship
[was] created between the parties on July 1, 1987," see R. Vol. Tab 21, p. 8, the
date the last offer was implemented, is unsupported. Employee conduct after
July 1, 1987, did not evince an acceptance of the Company's last offer. To the
contrary, the commencement of a seven-month strike on October 5, 1987,

during which time the alleged misconduct occurred, shows continued
dissatisfaction with and rejection of the employer's offer.2 See Int'l Brotherhood
of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers--Local
1603 v. Transue & Williams Corp., 879 F.2d 1388, 1393-94 (6th Cir.1989)
(labor contract found to exist because parties refused to marshal economic
weapons such as strikes or lockouts and adhered to the arbitration provisions of
their prior agreement during period without formal collective bargaining
agreement).
11
Accordingly, we do not agree that a contractual relationship was created on

July 1, 1987, either by virtue of the employer's implementation of its last offer
or by virtue of any perceived acceptance of that offer evidenced by employee
conduct. We determine that this Court is without jurisdiction to consider
whether the disputes in this case should be referred to arbitration and, hereby,
REVERSE the decision of the district court.
The Honorable Howard C. Bratton, Senior United States District Judge for the
District of New Mexico, sitting by designation
On June 4, 1987, the Company sent a letter to the Union outlining the terms of
the Company's last contract offer. This letter delineated the contract sections
which would be changed from the prior agreement, and further stated, "[A]ll
other provisions of the 1984 agreement not hereinbefore mentioned remain in
effect under our last offer." No change in the grievance and arbitration
provision had been discussed
As of the date the briefs were filed in this matter the Union and Company still
had not agreed on a new collective bargaining agreement

International Union, United Mine Workers of America v. Big Horn Coal Company, A Wyoming Corporation, 916 F.2d 1499, 10th Cir. (1991)

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916 F.

INTERNATIONAL UNION, UNITED MINE WORKERS OF

United States Court of Appeals,

Earl V. Brown, Jr. of United Mineworkers of America, Washington, D.C.

Relations Act, 29 U.S.C. Sec. 185(a). Accordingly, we reverse.

The Company, however, refused to reinstate eighteen of the striking employees,

In United Food and Commercial Workers International Union v. Gold Star

contrary, the commencement of a seven-month strike on October 5, 1987,

Accordingly, we do not agree that a contractual relationship was created on

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