UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HCMF CORPORATION, d/b/a Heritage
Hall-Big Stone Gap,
Plaintiff-Appellee,

v.

DISTRICT 28, UMWA,
Defendant-Appellant,                                 No. 96-2304

and

AMERICAN ARBITRATION ASSOCIATION;
JEROME T. BARRETT, Arbitrator,
individually,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James C. Turk, District Judge.
(CA-96-62-A)

Argued: June 5, 1997

Decided: July 9, 1997

Before RUSSELL, HAMILTON, and MOTZ,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Daniel H. Sachs, UNITED MINE WORKERS OF
AMERICA, DISTRICT 28, Castlewood, Virginia, for Appellant.
Bayard Easter Harris, THE CENTER FOR EMPLOYMENT LAW,
P.C., Roanoke, Virginia, for Appellee. ON BRIEF: John Alexander
Boone, THE CENTER FOR EMPLOYMENT LAW, P.C., Roanoke,
Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

The HCMF Corporation ("HCMF"), operator of Heritage Hall
nursing home, dismissed Lucille Dean, a nursing assistant, on Sep-
tember 8, 1995, for an incident involving a nursing home resident that
occurred six days earlier. At the time of Dean's dismissal there was
no collective bargaining agreement ("CBA") in effect between HCMF
and the United Mine Workers of America (the "UMWA"), which rep-
resented Dean. The parties had yet to negotiate a new CBA and the
previous CBA had expired on January 10, 1995 ("the old CBA").
Nonetheless, in October 1995, Dean filed a wrongful discharge griev-
ance against HCMF, and the UMWA made a demand for the arbitra-
tion of Dean's grievance with the American Arbitration Association
(the "AAA") pursuant to the terms of the general arbitration provision
in the old CBA. HCMF refused to arbitrate and urged the AAA to dis-
miss the UMWA's arbitration demand.

On February 20, 1996, the parties entered into a new CBA, which
had a retroactive effective date of January 1, 1996 ("the new CBA").
Two months later the AAA appointed an arbitrator to hear and deter-
mine Dean's grievance. HCMF immediately challenged UMWA's
action in district court. HCMF sought to enjoin the arbitration of
Dean's grievance pursuant to the old CBA (Count I). It also sought
damages for the UMWA's alleged breach of a settlement agreement
between HCMF and the UMWA (Count II).

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The district court granted summary judgment in favor of HCMF on
Count I. It reasoned the dispute concerning Dean's discharge did not
arise out of the old CBA, and the old CBA did not provide for postex-
piration arbitration. Accordingly, the district court enjoined the arbi-
tration of Dean's grievance. This appeal followed. Count II is still
pending in the district court.

I.

The UMWA contends the district court erred by granting HCMF
summary judgment on Count I and by enjoining the arbitration of
Dean's wrongful discharge claim. First, the UMWA asserts that
HCMF's obligation to arbitrate Dean's grievance survived the expira-
tion of the old CBA. Alternatively, it argues that Dean's grievance is
arbitrable under the new CBA. We review the grant of summary judg-
ment de novo.1 HCMF is entitled to summary judgment if there is no
genuine issue of material fact for trial.2

A.

Arbitration is a matter of private contract.3 Whether a party is
bound to arbitrate, and whether the disputed issue is arbitrable, is a
question for the court.4 The court, however, will not compel a party
to arbitrate unless the party has contractually consented to arbitrate its
disputes.5 In labor relations cases, the arbitration provision of the
expired agreement survives the expiration of the agreement and com-
pels the employer to arbitrate the grievance only when the postexpira-
tion grievance arises out of the expired agreement. 6 A postexpiration
grievance arises under the agreement:
_________________________________________________________________
1 Nguyen v. CNA Corp., 44 F.3d 234, 236 (4th Cir. 1995).
2 Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
3 Glass v. Kidder Peabody & Co. Inc., No. 91-1756, 1997 WL 269344,
at *6 (4th Cir. May 22, 1997).
4 Id. at *7.
5 AT&T Technologies, Inc. v. Communications Workers of America,
475 U.S. 643, 648 (1986).
6 Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 205-06 (1991).

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          only where it involves facts and occurrences that arose
          before expiration, where an action taken after expiration
          infringes a right that accrued or vested under the agreement,
          or where, under normal principles of contract interpretation,
          the disputed contractual right survives expiration of the
          remainder of the agreement.7

In the instant case, HCMF and the UMWA entered into the old
CBA on January 11, 1993. The CBA contained a general arbitration
provision, which provided for the arbitration of disputes involving the
interpretation and application of the terms of the agreement. The arbi-
tration provision did not contain a rollover provision, nor did it
expressly provide for the postexpiration arbitration of grievances aris-
ing after the CBA's expiration date. The CBA expired by its own
terms on January 10, 1995. HCMF dismissed Dean nine months after
the CBA's expiration, but four months before January 1, 1996 -- the
effective date of the new CBA.

The UMWA insists that the old CBA granted Dean a vested or
accrued right to be dismissed only for just cause. Even if UMWA is
right, we find no basis for the UMWA's assertion that this right sur-
vived the expiration of the agreement. We believe HCMF and the
UMWA did not contract to arbitrate grievances arising after January
10, 1995. Article 27 of the old CBA specifically states that "[a]ll
rights and benefits inuring to Employees under the terms and provi-
sions of this Agreement shall terminate on the last day of this Agree-
ment, notwithstanding anything to the contrary." Accordingly, we
hold that any right to arbitrate her dismissal expired when the agree-
ment expired.

We also conclude that Dean's grievance did not arise out of the old
CBA. Her dismissal was performance related and involved facts and
occurrences that arose nine months after the CBA's expiration date.
Accordingly, Dean's discharge did not arise out of the old CBA.
_________________________________________________________________
7 Id. at 206.

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B.

Next we turn to the UMWA's alternate theory that HCMF is obli-
gated to arbitrate Dean's grievance under the new CBA. We disagree
for the following reasons. The parties signed the new CBA on Febru-
ary 20, 1996, but agreed to a retroactive effective date of January 1,
1996. The new CBA's dispute resolution provision mandates that
employee grievances be mediated instead of arbitrated. Unlike other
provisions in the new CBA that contain effective dates, which
expressly differ from or precede the CBA's effective date, the media-
tion provision does not state an effective date independent of the
CBA's effective date. Finally, the provision only provides for the
mediation of grievances arising out of the new CBA. It fails to pro-
vide for the mediation of grievances, which arose during the hiatus
period. Hence, HCMF is not obligated to arbitrate Dean's grievance
under the new CBA.

II.

For the foregoing reasons, we hold that the district court properly
concluded that HCMF and the UMWA did not contract to arbitrate
employee grievances arising during the hiatus period. Accordingly,
the district court's grant of summary judgment in favor of HCMF and
its order enjoining the arbitration of Dean's grievance are

AFFIRMED

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