Anthony Kennedy

“ Leaving aside the question whether a provision requiring all layoffs to proceed in inverse order of seniority would support an analogy to the severance pay at issue in Nolde Bros., which was viewed as a form of deferred compensation, the layoff provision here cannot be so construed, and cannot be said to create a right that vested or accrued during the term of the Agreement, or a contractual obligation that carries over after expiration. ”

“ A postexpiration grievance can be said to arise under the contract 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. ”

“ Aptitude and ability cannot be measured on some universal scale, but only by matching an employee to the requirements of an employer's business at that time. We cannot infer an intent on the part of the contracting parties to freeze any particular order of layoff or vest any contractual right as of the Agreement's expiration. ”

“ The Board has taken the position that it is difficult to bargain if, during negotiations, an employer is free to alter the very terms and conditions that are the subject of those negotiations. The Board has determined, with our acceptance, that an employer commits an unfair labor practice if, without bargaining to impasse, it effects a unilateral change of an existing term or condition of employment. See NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962) . In Katz the union was newly certified and the parties had yet to reach an initial agreement. ”

“ We think the Board's decision in Hilton-Davis Chemical Co. is both rational and consistent with the Act. The rule is grounded in the strong statutory principle, found in both the language of the NLRA and its drafting history, of consensual rather than compulsory arbitration. See Indiana & Michigan, supra, at 57-58; Hilton-Davis Chemical Co., supra. The rule conforms with our statement that " [n] o obligation to arbitrate a labor dispute arises solely by operation of law. The law compels a party to submit his grievance to arbitration only if he has contracted to do so." Gateway Coal Co. ”

“ We acknowledge that where an effective bargaining agreement exists between the parties, and the agreement contains a broad arbitration clause, "there is a presumption of arbitrability in the sense that ' [a] n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.' " Id., at 650, 106 S.Ct., at 1419 (quoting Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 564, 582-583, 80 S.Ct. 1343, 1352-1353, 4 L.Ed.2d 1403 (1960) ) . ”

“ Whether or not a company is bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the court, and a party cannot be forced to "arbitrate the arbitrability issue." ”

“ Following Indiana & Michigan, the Board declared its determination to order arbitration "only when the grievances at issue 'arise under' the expired contract." 286 N.L.R.B., at 821 (citing Nolde Bros., supra ) . In finding that the dispute about layoffs was outside this category, the Board reasoned as follows:
"The conduct that triggered the grievances . . . occurred after the contract had expired. The right to layoff by seniority if other factors such as ability and experience are equal is not 'a right worked for or accumulated over time.' Indiana & Michigan, supra at 61. ”

“ The Katz doctrine has been extended as well to cases where, as here, an existing agreement has expired and negotiations on a new one have yet to be completed. See, e.g., Laborers Health and Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484 U.S. 539, 544, n. 6, 108 S.Ct. 830, 833, n. 6, 98 L.Ed.2d 936 (1988) .
Numerous terms and conditions of employment have been held to be the subject of mandatory bargaining under the NLRA. See generally 1 C. Morris, The Developing Labor Law 772-844 (2d ed. 1983) . ”

“ Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42, 107 S.Ct. 2225, 2235, 96 L.Ed.2d 22 (1987) ; see, e.g., NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. ----, ----, 110 S.Ct. 1542, ----, 108 L.Ed.2d 801 (1990) . ”