BRENT ELECTRIC COMPANY, INC.,

Plaintiff Counter Defendant - Appellant,

v. No. 23-5108

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 584,

Defendant Counter Plaintiff - Appellee.

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INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS; NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION,

Amici Curiae. _________________________________

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:21-CV-00246-CRK-CDL) _________________________________

Michael D. Oesterle, King & Ballow, Nashville, Tennessee (Mark E. Hunt and Marykate E. Williams, King & Ballow, Nashville, Tennessee, and Kevin P. Doyle, and Alex R. Telarik, Pray Walker, P.C., Tulsa, Oklahoma, with him on the briefs), for Plaintiff Counter Defendant-Appellant. Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 2

Glenda L. Pittman, Glenda Pittman & Associates, P.C., Austin, Texas (Frank W. Frasier, Frasier, Frasier & Hickman, LLP, Tulsa, Oklahoma, with her on the brief), for Defendant Counter Plaintiff-Appellee.

Robert D. Kurnick, Sherman Dunn, P.C., Washington, D.C., filed an Amici Brief for the National Electrical Contractors Association and the International Brotherhood of Electrical Workers, in support of Defendant Counter Plaintiff- Appellee. _________________________________

Before PHILLIPS, KELLY, and MORITZ, Circuit Judges. _________________________________

PHILLIPS, Circuit Judge. _________________________________

Brent Electric Company appeals the district court’s enforcement of an

arbitration award that imposed on Brent a renewed three-year collective-

bargaining agreement (CBA) with Local Union No. 584 of the International

Brotherhood of Electrical Workers (the Union). Brent objects that the imposed

CBA contains permissive subjects of bargaining, arguing that it did not clearly

and unmistakably waive its purported statutory right to refuse the imposition of

permissive subjects, and that such an award violates public policy.

This dispute requires us to consider two separate lines of cases carrying

ostensibly contradictory standards: those applying the presumption of

arbitrability absent forceful evidence of an intent not to arbitrate; and those

requiring a party’s clear and unmistakable waiver of a statutory right.

We reject Brent’s invitation to confuse the two and agree with the Union

that, by agreeing to the interest-arbitration clause in the 2018 CBA, Brent

consented to submit both permissive and mandatory subjects of bargaining to

2 Appellate Case: 23-5108 Document: 010111090666 Date Filed: 08/06/2024 Page: 3

arbitration if the parties could not agree on the terms of a new CBA. We

therefore affirm the district court and hold Brent to its contractual obligations. 1

BACKGROUND

I. Factual Background

Brent and the Union have a long-standing relationship dating back to

1996, when Brent signed a Letter of Assent authorizing the Eastern Oklahoma

Chapter of the National Electrical Contractors Association (NECA) to negotiate

with the Union on Brent’s behalf. During the times relevant to this dispute, the

Union’s relationship with Brent was enabled by Section 8(f) of the Labor-

Management Relations Act, which exempts employers in the building and

construction industry from the general prohibition on making an agreement

with a union before a union has majority-employee support. 2 See 29 U.S.C.

§§ 158(f), 159(a); Sheet Metal Workers’ Int’l Ass’n, Loc. Union No. 2 v.

McElroy’s, Inc. (McElroy’s), 500 F.3d 1093, 1097 (10th Cir. 2007) (“Secti

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