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Click here for the full text of this decision FACTS:Local Union No. 898 of the International Brotherhood of Electrical Workers appeals the district court’s judgment refusing to enforce an arbitration award against XL Electric Inc. HOLDING:Affirmed. The union attempts to classify the present situation as presenting a timeliness issue that is thus procedural and should have been determined by the arbitrator. The arbitrability question is a question for the court. The fact that the inquiry involves timing does not automatically classify it as a procedural question within the province of the arbitrator. Thus, the district court did not err in undertaking an analysis of whether the dispute between XL Electric and the union was subject to the agreement. The arbitration clause only provided for issues to be submitted to arbitration while the agreement was effective. The agreement provided: “Unresolved issues in negotiations . . . may be submitted . . . by the parties to this Agreement to the Council for adjudication prior to the anniversary date of the Agreement.” Because the arbitrator found that the agreement was not terminated, the arbitrator concluded that this agreement to arbitrate was in effect when the Union submitted the unresolved issues to arbitration in August 2000. Because the district court determined that the agreement was terminated no later than May 31, 2000, the district court concluded that under the plain terms of the arbitration provision the parties could not submit claims to arbitration after that date. The union contends that the district court’s construction of this provision was incorrect. The union argues that because the arbitration provision was permissive, not mandatory, it was not required to submit claims to arbitration prior to the anniversary date of the agreement. This argument is not persuasive. The discretionary nature of the provision simply conveys that the parties are not required to arbitrate if they do not choose to do so. It does not mean that the time limitation within the provision is irrelevant. Accordingly, the question of whether there is an agreement to arbitrate depends on whether the agreement was terminated. The union made no argument challenging the district court’s conclusion that the agreement expired before the union submitted the unresolved negotiation issues to arbitration. The district court held that both the letter of assent and the agreement were terminated no later than May 31, 2000. The arbitrator found that although XL Electric properly terminated the letter, it did not properly terminate the agreement. The arbitrator did not explain the basis for this determination beyond making the conclusory statement that the requirements in the agreement had not been fulfilled. And on appeal the union has only argued that the question at hand was a procedural question to be answered by the arbitrator. The union made no argument challenging the merits of the district court’s ultimate conclusion that the agreement was properly terminated. The union thus waived any argument along those lines, Yohey v. Collins, 985 F.2d 222 (5th Cir. 1993), and the district court’s conclusion that the agreement had expired stands. Because the agreement and by extension the arbitration provision expired before the union submitted the renegotiation issues to arbitration, the dispute was not arbitrable. OPINION:Dennis, J.

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