                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-3113
                                    ___________

Sheet Metal Workers International       *
Association, Local No. 3,               *
                                        *
            Appellant,                  *
                                        *
      v.                                *   Appeals from the United States
                                        *   District Court for the District of
Lozier Corporation,                     *   Nebraska
                                        *
            Appellee.                   *

                                    ___________

                            Submitted: April 19, 2001
                                Filed: July 9, 2001
                                 ___________

Before RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circuit
      Judges, and BOGUE,1 District Judge.
                                ___________

BOGUE, District Judge.

      An employee was terminated from Lozier Corporation and the Sheet Metal
Workers’ International Association, Local No. 3 (“Union”) brought a grievance with
the National Labor Relations Board NLRB (“NLRB”). The collective bargaining


      1
        The Honorable Andrew W. Bogue, Senior United States District Judge for the
District of South Dakota, sitting by designation.
agreement between the Union and Lozier set forth the grievance procedure. At issue
in this action is Step 4 which states:

      Within three (3) working days after receipt of such list (referring to the
      Federal Mediation and Conciliation Service list of five impartial
      arbitrators), the parties shall meet and alternatively each party shall
      eliminate one name in turn until only the name of one proposed arbitrator
      remains, who shall be the sole arbitrator for the grievance....”

       The Union and Lozier failed to meet and select an arbitrator in a timely fashion.
The parties dispute the reason for this failure to select an arbitrator, but this
determination is not relevant to this jurisdictional appeal. The Union then filed an
unfair labor practice action with the NLRB. The NLRB found no jurisdiction because
there was no unfair labor practice. The Union then filed this action in district court and
each party filed a motion for summary judgment. The district court granted Lozier’s
motion based upon the reasoning that the NLRB had exclusive jurisdiction and its
determination was final. The Union filed Motions for New Trial and Motions to Alter
or Amend the Judgment based upon the jurisdiction issue. The district court denied
these motions.

                                            I.

       The review of summary judgment is de novo. Celotex Corp. v. Catrett, 477 U.S.
317 (1986). At issue is whether the district court has jurisdiction over this action. The
Union argues that its pursuit of a claim with the NLRB does not foreclose an action
seeking to enforce the contract rights under the collective bargaining agreement in
district court. The Eighth Circuit has held that the NLRB’s disposition of an unfair
labor practice claim does not dispose of the right to seek arbitration. IBEW 257 v.
Sebastian Electric, 121 F.3d 1180, 1182-1186 (8th Cir. 1997). The Union claims the
arbitrator is required to determine the timeliness issue and that the NLRB determination

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did not reach this question. We agree. The NLRB clearly did not address the
timeliness issue as it did not find a repudiation of the collective bargaining agreement
which could constitute an unfair labor practice. The Union has sought to resolve a
contractual dispute as to the meaning of the collective bargaining agreement,
specifically, the duty to arbitrate, which is not a representation issue.

                                           II.

       The allegation that the requirements of the collective bargaining agreement were
not met is clearly a contractual question and not a representational question. Local
Union 884 v. Bridgestone/Firestone. Inc., 61 F.3d 1347 (8th Cir. 1995). "In interpreting
a collective bargaining agreement ... we must construe the contract as a whole," Amcar
Div., ACF Indus. v. NLRB, 641 F.2d 561, 569 (8th Cir.1981), and read the terms of
the agreement "in their context," Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 281
(1956). Excerpt from: Trinidad Corp. v. Nat’l Maritime Union of America, No. 4, 81
F.3d 769, 772 (8th Cir. 1996). Given the consistent Eighth Circuit precedent that the
district courts have concurrent jurisdiction over non-representational matters, this case
was properly before the district court and, therefore, summary judgment in favor of
Lozier was improper. The district court can defer this matter to the arbitrator to
determine the timeliness issue.

      Accordingly, we reverse.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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