## Facts

- Litton operated a check-printing plant whose production employees were represented by a union under a collective-bargaining agreement (CBA).
- The CBA contained a broad grievance-and-arbitration clause requiring arbitration of unresolved grievances about contract construction or violations.
- The CBA included a seniority layoff clause making length of service controlling “if other things such as aptitude and ability [were] equal.”
- The CBA (as extended) expired on October 3, 1979; a union certification dispute followed, and Litton refused to bargain to test the certification, resulting in an NLRB unfair-labor-practice finding.
- In August–September 1980, nearly a year after expiration and without notice to the union, Litton eliminated a printing operation and laid off 10 employees, including several of the most senior.
- The union filed grievances alleging the layoffs violated the seniority layoff clause; Litton refused to process the grievances and refused to arbitrate.
- The NLRB found Litton violated NLRA §§ 8(a)(1) and 8(a)(5) by refusing to bargain and process grievances, but concluded the layoff grievances were not arbitrable because they did not “arise under” the expired CBA.
- The Ninth Circuit enforced the unfair-labor-practice order but held the layoff dispute was arbitrable under the expired CBA.
- The Supreme Court granted review to determine whether the post-expiration layoff dispute had to be arbitrated.

## Issues

1. Whether layoffs occurring well after expiration of a CBA “arise under” the expired agreement so as to remain subject to its arbitration clause.
2. How far the presumption of post-expiration arbitrability recognized in *Nolde Bros.* extends, and how it relates to statutory bargaining duties after expiration.

## Decision

- The Supreme Court reversed the Ninth Circuit in part and remanded.
- The Court held the layoff dispute was not arbitrable under the expired CBA.
- The Court limited post-expiration arbitration to certain categories of disputes sufficiently rooted in the expired contract.
- The Court distinguished contractual arbitrability from statutory duties under the NLRA to maintain the status quo and bargain after expiration.

## Legal Principles

- Arbitration is a matter of consent; a party cannot be required to arbitrate a dispute absent agreement to do so.
- Courts decide whether a dispute is subject to contractual arbitration; parties cannot be compelled to arbitrate arbitrability unless they agreed to that allocation.
- The presumption favoring arbitration after expiration does not make all post-expiration disputes about former contract terms arbitrable.
- A post-expiration grievance “arises under” an expired CBA only when:
  - it involves facts and occurrences that arose before expiration, or
  - post-expiration conduct infringes a right that accrued or vested under the agreement, or
  - normal principles of contract interpretation show the contractual right survives expiration.
- A statutory duty to bargain and refrain from unilateral changes after expiration may exist independently of any continuing contractual duty to arbitrate.

## Conclusion

The Court held that a layoff dispute arising nearly a year after a CBA expired was not subject to the expired agreement’s arbitration clause because it did not involve pre-expiration facts, vested or accrued rights, or contract terms intended to survive expiration, even though the employer could still have statutory bargaining obligations under the NLRA.


Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (1991)