NOT RECOMMENDED FOR PUBLICATION File Name: 21a0541n.06
Case No. 21-3228
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED INTERNATIONAL BROTHERHOOD OF ) Nov 24, 2021 ) DEBORAH S. HUNT, Clerk TEAMSTERS, LOCAL UNION NO. 413, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE THE KROGER CO., dba TAMARACK FARMS ) SOUTHERN DISTRICT OF DAIRY, ) OHIO Defendant-Appellant. ) )
Before: CLAY, GIBBONS, and BUSH, Circuit Judges.
JOHN K. BUSH, Circuit Judge. This case involves the presumption of arbitrability under
a collective bargaining agreement (CBA) between the Kroger Co. and the International
Brotherhood of Teamsters, Local Union No. 413 (the Union). They are in a dispute over whether
a union steward’s grievance regarding certain retirement benefits is subject to arbitration under the
parties’ CBA. Because Kroger is unable to rebut the presumption in favor of arbitrability, we
affirm the district court’s grant of summary judgment to the Union that orders arbitration of the
grievance.
I.
The CBA at issue, effective October 8, 2017, through October 10, 2020, applies to certain
employees at Kroger’s Tamarack Farms Dairy operation in Newark, Ohio. The CBA governs “all Case No. 21-3228, Int’l Bhd. of Teamsters, Loc. Union No. 413 v. Kroger Co.
of the production, laboratory, and maintenance employees for the Employer in the classifications
set forth in the wage schedule in Article 23; and exclude[es] all office clerical employees,
professional employees, guards, and supervisors as defined in the [Labor Management Relations]
Act, and outside subcontracted services.” (Compl., Ex. A, R.1-3, Pg. ID 13.)
Article 5 of the CBA contains grievance and arbitration procedures to govern employee
grievances. The CBA defines a grievance as “a dispute between the Employer and employee as
to the interpretation or application of any provisions of th[e] Agreement and is limited to the
express terms and provisions of th[e] Agreement.” (Id. at 15.) The aggrieved employee must
pursue a multi-step process to settle grievances, including two conferences between the employee
and Kroger, before bringing the grievance to the Board of Arbitration. The decision of the
arbitrator “shall be final and binding,” and the arbitrator “shall not be empowered to alter the
terms” of the CBA. (Id. at 16.)
The CBA also contains several provisions concerning benefits, including Article 19,
Section 19.1, which addresses certain retirement benefits. That provision states that “[a]ll
employees of the Employer will be covered by and participate in the Kroger Employees Retirement
Benefit Plan. Participation is governed by the terms of the Plan.”1 (Id. at 29.) Starting in 2001,
Kroger provided retirement benefits through the Kroger Consolidated Retirement Benefit Plan
(CRBP).
The dispute underlying this appeal arose in August 2017, when Kroger terminated the
CRBP and gave non-union employees the option to take a lump-sum payout of their benefits, roll
the funds over to a 401(k) account, or have Kroger purchase an annuity with an insurance company
1 Kroger’s benefit manager, Wendy Kennedy, testified that she has no knowledge of the current existence of a plan titled the “Kroger Employees Retirement Benefit Plan.” (Kennedy Dep., R. 17, Pg. ID 94–95.) However, according to Kennedy, the Kroger Employees Retirement Benefit Plan later became the Kroger Consolidated Retirement Benefit Plan. (Kennedy Dec., Ex. B, R. 25., Pg. ID 519–20 (listing the history of the CRBP).)
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for the benefits. Kroger placed Union employees in a CRBP spin-off plan (CRBP spin-off) and
did not give them these distribution options. The Union and Kroger had negotiated the issue of
distribution options in 2017, prior to adopting the CBA. But despite their discussion of union
members receiving the same options as management for movement of funds, the language of
Article 19, Section 19.1 of the CBA ultimately remained unchanged.
Then, on February 20, 2018, Union Steward Jay Laymon filed a grievance: “Based on
(Article 19 Section 19.1)[, a]ll Tamarack Bargaining Unit employees participating in the Kroger
Consolidated Retirement Benefit Plan (aka Cash Balance Pension Plan), [t]he Company will
provide the same payment options as offered to management and non[-]union hourly associates.”
(Compl., Ex. B, R.1-3, Pg. ID 42.)
But Kroger refused to hear the grievance. After conferencing with Kroger, pursuant to the
CBA’s grievance and arbitration procedures, the Union notified Kroger that it wished to mediate
the issue in September 2018. Starting in January 2019, the parties participated in a mediation
session and exchanged information and proposals regarding the matter. Yet when the Union
informed Kroger that it wished to proceed to arbitration that June, Kroger disagreed. It stated that
Laymon’s grievance did not articulate a dispute between Kroger and an employee as to the
interpretation or application of any provision of the CBA, so arbitration was not required.
The Union then filed suit to compel arbitration under the Labor Management Relations Act
of 1947 (LMRA), 29 U.S.C. § 141 et seq. It alleged that Kroger willfully and in bad faith breached
the CBA by refusing to arbitrate Laymon’s grievance.
Ruling on the cross-motions for summary judgment, the district court first noted that the
parties only disputed whether Laymon’s grievance falls under the arbitration clause of Article 5,
Section 5.1, not whether a valid arbitration clause existed at all. It then applied a presumption of
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arbitrability because of the broad arbitration clause in the CBA. It held that the grievance
implicates an interpretation of Section 19.1 of the CBA and is not “expressly excluded” from
arbitration by the CBA. Because the grievance was not expressly excluded from arbitration by the
CBA and the presumption of arbitrability applied, the district court granted summary judgment to
the Union and ordered arbitration. Kroger’s timely appeal followed.
II.
We review a district court’s grant of summary judgment de novo. Kenney v. Aspen Techs.,
Inc., 965 F.3d 443, 447 (6th Cir. 2020). On cross-motions for summary judgment, we review
factual issues in favor of the party whose motion did not prevail in the district court—here, Kroger.
See B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 598 (6th Cir. 2001). “Similarly, we
review de novo the district court’s decision to compel arbitration of a particular dispute.” United
Steelworkers of Am. v. Cooper Tire & Rubber Co., 474 F.3d 271, 277 (6th Cir. 2007) (citing Floss
v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306, 311 (6th Cir. 2000)). In this context, we “must
determine whether the dispute is arbitrable, meaning that a valid agreement to arbitrate exists
between the parties and that the specific dispute falls within the substantive scope of the
agreement.” Teamsters Local Union No. 89 v. Kroger Co., 617 F.3d 899, 904 (6th Cir. 2010)
(quoting Landis v. Pinnacle Eye Care, LLC, 537 F.3d 559, 561 (6th Cir. 2008)).
We start with some background of arbitrability in the labor context. The LMRA states that
the policy of the United States is to encourage the resolution of CBA disputes through
“conciliation, mediation and voluntary arbitration.” 29 U.S.C. § 171(b). It also provides that
grievance disputes should be resolved “by a method agreed upon by the parties,” oftentimes
implying arbitration. 29 U.S.C. § 173(d). Building upon this policy, federal courts have
“fashion[ed] a body of federal law for the enforcement of . . . collective bargaining agreements,”
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including “promises to arbitrate grievances under collective bargaining agreements.” Textile
Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 450–51 (1957). The Supreme Court
held that a CBA is “more than a contract”; rather, “[i]t calls into being a new common law—the
common law of a particular industry or of a particular plant.” United Steelworkers of Am. v.
Warrior & Gulf Navigation Co., 363 U.S. 574, 578–79 (1960).
Our framework for determining arbitrability was built on that foundation. Simply put, our
duty is “to interpret the agreement and to determine whether the parties intended to arbitrate
grievances concerning a particular matter.” Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S.
287, 301 (2010) (cleaned up). We “discharge this duty” in two steps, by:
(1) applying the presumption of arbitrability only where a validly formed and enforceable arbitration agreement is ambiguous about whether it covers the dispute at hand; and (2) adhering to the presumption and ordering arbitration only where the presumption is not rebutted.
Id. In applying this framework, we use “ordinary . . . principles that govern the formation of
contracts.” Id. at 296 (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)).
The parties do not dispute that they are parties to a valid and enforceable arbitration clause
in their CBA. (Def. Mot. for Summ. J., R. 21, Pg. ID 280–82; Pl. Mot. for Summ. J., R. 22, Pg.
ID 288–91.) That provision, Article 5, Section 5.1, provides for arbitration of any “dispute
between the Employer and employee as to the interpretation or application of any provisions of
this Agreement and is limited to the express terms and provisions of this Agreement.” (Compl.,
Ex. A, R.1-3, Pg. ID 15.) It is similar to arbitration clauses we have found to be broadly worded.
See, e.g., Kroger, 617 F.3d at 905 (finding that a clause providing for arbitration of “‘any
grievance[,] dispute[,] or complaint over the interpretation or application of the contents of this
Agreement’ raised by ‘any employee’” to be broad); see also Int’l Ass’n of Machinists &
Aerospace Workers v. ISP Chems., Inc., 261 F. App’x. 841, 846 (6th Cir. 2008) (finding a clause
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providing for arbitration of “any difference of opinion or dispute . . . regarding interpretation or
application of any provision of this Agreement,” but with three specific issues excepted, to be
broad).
The parties disagree about the interpretation of Article 5, Section 5.1—namely, whether
Laymon’s grievance regarding Kroger’s failure to “provide the same payment options as offered
to management and non[-]union hourly associates” falls within the category of arbitrable issues.
(Compl., Ex. B, R.1-3, Pg. ID 42.) See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. 614, 626 (1985). As to this issue, the arbitration clause is ambiguous, which we discuss
in greater depth below. Whereas the provision could be read, as Kroger contends, to be
inapplicable to the retirement benefits question at issue, it also could be read to cover that dispute,
as the Union contends.
Because the arbitration agreement is ambiguous regarding coverage of the dispute at hand,
we apply the presumption of arbitrability. See Granite Rock, 561 U.S. at 301; see also AT & T
Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 650 (1986) (stating that any “[d]oubts”
about whether an arbitration clause covers an asserted dispute “should be resolved in favor of
coverage”). That presumption is particularly applicable in cases involving broad arbitration
clauses, as is the case here. Int’l Union v. Cummins, Inc., 434 F.3d 478, 485–86 (6th Cir. 2006).
Applying the presumption of arbitrability, we must compel arbitration unless the
presumption is rebutted. Granite Rock, 561 U.S. at 301. Kroger attempts to do so with two
arguments: that the dispute is expressly excluded by the language of the CBA and that, absent
express language, the parties intended to exclude the dispute from arbitration. We address each
argument in turn below.
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A. Is this Dispute Expressly Excluded from Arbitration?
A party can rebut the presumption in favor of arbitration if it shows that “the parties have
expressly excluded the grievance from arbitration.” See Teamsters Local Union No. 783 v.
Anheuser-Busch, Inc., 626 F.3d 256, 260–64 (6th Cir. 2010) (collecting cases). That means Kroger
can prevail only if “the arbitration clause is not susceptible of an interpretation that covers the
asserted dispute.” Teamsters Local Union 480 v. United Parcel Serv., Inc., 748 F.3d 281, 288 (6th
Cir. 2014) (quoting AT & T Techs., 475 U.S. at 650). “The starting point [is] . . . the language of
the Collective Bargaining Agreement.” Bakery, Confectionery, Tobacco Workers & Grain
Millers, Int’l Union AFL-CIO v. Kellogg Co., 904 F.3d 435, 442 (6th Cir. 2018) (quoting Salary
Policy Emp. Panel v. Tenn. Valley Auth., 149 F.3d 485, 491 (6th Cir. 1998)).
The arbitration clause here contains no specific exclusions exempting specific disputes
from arbitration. And in Article 5, Section 5.1, the parties agreed to arbitrate grievances as to the
interpretation or application of any provision in the CBA.
Kroger argues, however, that the dispute is expressly excluded from the CBA’s arbitration
clause by the grievance procedures of the CRBP. According to Kroger, the terms of the CRBP are
incorporated into the CBA by virtue of Article 19, Section 19.1.
Kroger is correct that terms can be incorporated into the CBA by reference to another
document. But such incorporation occurs only “where the underlying contract makes clear
reference to a separate document, the identity of the separate document may be ascertained, and
incorporation of the document will not result in surprise or hardship.” Anheuser-Busch, Inc., 626
F.3d at 262 (quoting Standard Bent Glass Corp. v. Glassrobots Oy, 333 F.3d 440, 447 (3d Cir.
2003)); see also United Steelworkers of Am., AFL-CIO-CLC v. Commonwealth Aluminum Corp.,
162 F.3d 447, 449 (6th Cir. 1998) (finding that insurance benefits booklets were incorporated by
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reference into CBA where CBA referred to booklets by name). “The reference must be clear and
unequivocal.” Anheuser-Busch, 626 F.3d at 262 (quoting Rinard v. Eastern Co., 978 F.2d 265,
269 n.3 (6th Cir. 1992)). We look to the plain language of the CBA. See Morgan Servs., Inc. v.
Loc. 323, Chicago & Cent. States Joint Bd., Amalgamated Clothing & Textile Workers Union,
AFL-CIO, 724 F.2d 1217, 1223 (6th Cir. 1984).
Article 19, Section 19.1 makes no explicit reference to the CRBP. Instead, that provision
identifies the “Kroger Employees Retirement Benefit Plan” as the separate document. (Compl.,
Ex. A, R.1-3, Pg. ID 29 (“All employees of the Employer will be covered by and participate in the
Kroger Employees Retirement Benefit Plan. Participation is governed by the terms of the Plan.”))
However, the Kroger Employees Retirement Benefit Plan no longer exists. That plan merged with
three other plans and then was amended to eventually become the CRBP. (Kennedy Dec., Ex. B,
R. 25., Pg. ID 519–20.) The CRBP was terminated on September 1, 2017. (Id. (“The
Corporation[, Kroger,] adopted an amendment on July 24, 2017 to terminate the Prior Plan[, the
Kroger Consolidated Retirement Benefit Plan,] effective as of the proposed termination date of
September 1, 2017[.]”)) The CRBP spin-off was then created—governed by a separate document
with its own grievance procedures. (Id. at 547–48.) The CBA is thus ambiguous as to what plan
Article 19, Section 19.1 identifies.
Because the plain language of Section 19.1 is ambiguous, we may look at the extrinsic
evidence the parties offer. See Salary Policy Emp. Panel, 149 F.3d at 493 (“[E]xtrinsic
evidence . . . can be considered under the Collective Bargaining Agreement where the language is
ambiguous.”). Kroger suggests that the Union knew that the Kroger Employee Retirement Benefit
Plan referenced in Article 19, Section 19.1 is the CRBP, because the CRBP was named in the
grievance and because the benefits are the same under both plans. However, even if the document
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could be considered clearly referenced and its identity can be ascertained, it is not clear that the
incorporation of the CRBP here would not result in surprise or hardship for the Union. See
Anheuser-Busch, Inc., 626 F.3d at 262. The claim procedures in the CRBP govern disputes from
a singular person and do not address issues involving a group of employees. (Kennedy Dec., Ex.
A, R. 25., Pg. ID 438 (The “Retirement Management Committee” will “determine all facts which
are necessary to establish the right of an applicant to benefits under the provisions of the Plan and
the amount thereof as herein provided.”).) Because Kroger cannot show that the CRBP was clearly
identified in Article 19, Section 19.1 and that the Union would not be surprised or face hardship
with its incorporation, the dispute was not expressly excluded from arbitration.
B. Is There Forceful Evidence of a Purpose to Exclude this Dispute from Arbitration?
Kroger has one more avenue by which to rebut the presumption in favor of arbitration—
offering “forceful evidence” that the parties intended to exclude the dispute from arbitration. AT
& T Techs., 475 U.S. at 650 (quoting Warrior & Gulf Navigation Co., 363 U.S. at 584–85) (“In
the absence of any express provision excluding a particular grievance from arbitration, . . . only
the most forceful evidence of a purpose to exclude the claim from arbitration can prevail.”). But
it offers no such evidence. Instead, Kroger argues that because it continued to provide the benefits
articulated in Article 19, Section 19.1 and because Laymon testified that this provision does not
address whether Kroger will provide union members the same payment options offered to
management and non-union hourly associates, “it follows logically that the parties intended to
exclude the subject of the alleged ‘grievance’ from arbitration.” Kroger also points to
conversations that occurred during the creation of the CBA regarding the rejected proposal to
include the same payment options and retirement benefits for union and non-union employees and
the definition of “employee” in the CBA.
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However, this evidence speaks to the merits of the case—specifically the interpretation of
the language in Article 19, Section 19.1 as to retirement payment options—which we do not look
at here. See General Drivers, Salesmen and Warehousemen’s Local Union No. 984 v. Malone &
Hyde, Inc., 23 F.3d 1039, 1043 (6th Cir. 1994) (“[I]t is not for the courts to weigh the merits of a
grievance or to undertake to determine the rights of parties under a collective bargaining
agreement.”); see also United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564, 567 (1960) (The
underlying “question of contract interpretation [is] for the arbitrator.”). Kroger is, therefore,
unable to rebut the presumption in this manner either.
Finally, Kroger’s contention that Anheuser-Busch compels a different outcome is
unpersuasive. We did not eliminate the express-exclusion hurdle for all cases involving ERISA-
covered retirement plans in Anheuser-Busch. See 626 F.3d at 262. Rather, we discussed the
applicability of incorporated terms from a referenced document for purposes of the express-
exclusion exception to the presumption of arbitrability. Furthermore, the grievance procedures in
the plan in Anheuser-Busch directly dealt with the dispute at issue. See Local 1982, Int’l
Longshoremen’s Ass’n v. Midwest Terminals of Toledo, Int’l, Inc., 560 F. App’x. 529, 537 (6th
Cir. 2014) (noting that Anheuser-Busch and Int’l Ass’n of Machinists v. AK Steel Corp., 615 F.3d
706, 711–13 (6th Cir. 2010) “involved CBA clauses that excluded certain categories of grievances
from arbitration without any arguable ambiguity”).
III.
A presumption of arbitrability applies to the CBA’s broad arbitration clause. And both of
Kroger’s attempts to rebut the presumption fall short. Accordingly, for the foregoing reasons, we
affirm the district court’s grant of summary judgment to the Union and denial of summary
judgment to Kroger.
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