                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0289n.06

                                               No. 12-1633

                            UNITED STATES COURT OF APPEALS                                       FILED
                                 FOR THE SIXTH CIRCUIT
                                                                                           Apr 18, 2014
                                                                                      DEBORAH S. HUNT, Clerk
O-N MINERALS CO., dba Carmeuse Lime & Stone,                   )
Calcite Plant,                                                 )
                                                               )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                     )        UNITED STATES DISTRICT
                                                               )        COURT FOR THE EASTERN
                 v.                                            )        DISTRICT OF MICHIGAN
                                                               )
INTERNATIONAL BROTHERHOOD OF                                   )
BOILERMAKERS, IRON SHIP BUILDERS,                              )
BLACKSMITHS, FORGERS & HELPERS,                                )
CEMENT, LIME, GYPSUM, AND ALLIED                               )
WORKERS DIVISION, AFL-CIO; LOCAL LODGE                         )
NO. D500,                                                      )
                                                               )
       Defendants-Appellants.                                  )
                                                               )



BEFORE: MOORE and GRIFFIN, Circuit Judges; and KORMAN, District Judge.*

       KORMAN, District Judge. Appellee O-N Minerals Company (the “appellee” or the

“Company”) and appellants the Cement, Lime, Gypsum and Allied Workers Division of the

International Brotherhood of Boilermakers, and, specifically, its local affiliate Local Lodge No.

D500 (collectively, the “appellants” or the “Union”), are parties to a collective bargaining agreement

(the “CBA” or the “Agreement”). This case arises out of the parties’ conflicting interpretation of

the CBA provision pertaining to the Company’s obligation to contribute to an employee pension



             *
             The Honorable Edward R. Korman, Senior United States District Judge for the Eastern District
     of New York, sitting by designation.
No. 12-1633, O-N Minerals Co. v. Int’l Bhd. of Boilermakers, et al.


fund at a specified rate. After receiving a request from the Union to appoint an arbitration panel to

resolve the dispute, the Company commenced an action for a declaratory judgment in the United

States District Court for the Eastern District of Michigan seeking a ruling that the Union could not

seek or compel arbitration of its grievance. The Union filed a counterclaim seeking an order to

compel arbitration. The district court granted summary judgment in favor of the Company on the

grounds that an arbitrator, under the terms of the CBA, lacked the authority and jurisdiction to

resolve the grievance.

                                         BACKGROUND

       The Company is a Michigan corporation that operates a limestone quarry and processing

plant near Rogers City, Michigan. (R. 1 at 2, Pg ID at 2). The Union represents the employees of

the Company. (R. 1 at 2, Pg ID at 2). On August 1, 2008, the parties entered into the CBA for the

purpose of determining “rates of pay, hours of work and other conditions of employment” of the

Company’s employees. (R. 1-2 at 2, 5, Pg ID at 13, 16). This dispute arises out of the interaction

of three provisions of the CBA, which establish, respectively, the hourly wages of employees, the

contribution scale for the pension fund and the procedure by which grievances between the parties

are to be settled. (R. 1-2 at 16, 42, 55, Pg ID at 26, 52, 65).

       Article VII of the CBA sets the “standard hourly wage scales” for various types of employees

and further provides that employees receive incremental pay raises for each year the CBA is in

effect. (R. 1-2 at 16, Pg ID at 26). A “Dock Technician I,” for example, earns $19.00 per hour in

year one of the Agreement, $19.25 in year two, $19.73 in year three and $20.22 in year four. (R.

1-2 at 16, Pg ID at 26). Appendix A of the CBA provides that the Company is to make contributions

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to the Boilermaker-Blacksmith’s National Pension Trust (the “Pension Trust”), a pension fund

benefitting the Company’s employees that is operated by the Union’s national affiliate. (R. 1-2 at

55-56, Pg ID at 65-66; R. 13-2 at 2, Pg ID at 368). For each hour worked by an employee, the

Company is to contribute $2.10 to the Pension Trust in year one of the Agreement, $2.20 in year

two, $2.25 in year three and $2.30 in year four. (R. 1-2 at 56, Pg ID at 66).

       Article XII establishes procedures for the resolution of “grievances” between the parties.

(R. 1-2 at 42, Pg ID at 52). The CBA defines the term “grievance” as “limited to a complaint or

request of an employee which involves the interpretation or application of, or compliance with, the

provisions of this Agreement.” (R. 1-2 at 43, Pg ID at 53). “The grievance procedure,” according

to Article XII, “may be utilized by the Union in processing grievances which allege a violation of

the contract, and all referenced State and Federal Law.” (R. 1-2 at 48, Pg ID at 58). Steps 1 through

4 of the “Grievance Procedure” establish an internal dispute resolution process, providing the parties

with a framework to hold meetings “in an attempt to reach a mutually satisfactory settlement.” (R.

1-2 at 43-45, Pg ID at 53-55). If, however, these procedures fail to achieve a satisfactory settlement,

Step 6 enables the parties to appoint an “impartial arbitrator” to resolve the grievance. (R. 1-2 at

46-47, Pg ID at 56-57). The decision of an arbitrator on any issue properly before him is final and

binding upon the parties. (R. 1-2 at 46, Pg ID at 56).

       Nevertheless, the CBA limits the scope of an arbitrator’s authority and jurisdiction over the

parties. Step 6 of the Grievance Procedure provides:

               An arbitrator to whom any grievance shall be submitted in
               accordance with the provisions of this Article shall have jurisdiction
               and authority to interpret and apply the provision of this Agreement

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No. 12-1633, O-N Minerals Co. v. Int’l Bhd. of Boilermakers, et al.


               insofar as shall be necessary to the determination of such grievance,
               but he shall not have jurisdiction or authority to alter in any way the
               provisions of the Agreement.

(R. 1-2 at 46-47, Pg ID at 56-57).

       On November 1, 2009, the instant dispute between the parties arose when the Pension Trust

notified the Company that it was increasing the Company’s required minimum contribution rate

annually over the next five years. (R. 1 at 4-5, Pg ID at 4-5). While Appendix A sets the

Company’s contribution rate for each employee at $2.25 per hour worked in 2010 and at $2.30 for

2011 through 2014, the Pension Trust sought to increase the Company’s contribution rate to $2.835

in 2010, $3.57 in 2011, $4.305 in 2012, $5.04 in 2013 and $5.775 in 2014. (R. 1 at 4, Pg ID at 4).

The Company informed the Pension Trust that it would not agree to the increase because the new

minimum contribution rates contravened the previously negotiated rates set forth in Appendix A.

(R. 11 at 3, Pg ID at 198). The Pension Trust proceeded to warn the Company that it would be

expelled if it did not agree to the new rates. (R. 11 at 3, Pg ID at 198). In turn, the Company began

negotiations with the Union to address the Pension Trust’s attempts to enact a unilateral rate

increase. (R. 11 at 3, Pg ID at 198). The parties, however, were not able to resolve the dispute. (R.

11 at 4, Pg ID at 199).

       Consequently, on December 1, 2010, the Pension Trust expelled the Company and stopped

accepting its contributions. (R. 11 at 4, Pg ID at 199). Since then, the Company has placed the

funds earmarked for the Pension Trust, which were calculated under the rates specified in Appendix

A, into an “an escrow-like account.” (R. 11 at 4, Pg ID at 199). On January 7, 2011, James A.

Pressley (“Pressley”), an International Vice President of the Union, informed the Company by letter

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No. 12-1633, O-N Minerals Co. v. Int’l Bhd. of Boilermakers, et al.


that the contributions should not be placed in an “escrow-like account,” but instead should be added

to the employees’ hourly wages:

               It is the position of the Union that contributions to the Boilermakers-
               Blacksmith National Pension Plan provided in Appendix A (Benefits
               Agreement) of the current Collective Bargaining Agreement should
               be restored to the Bargaining Unit Employee’s Hourly Rate effective
               December 1, 2010. Please be advised that if the monies are not added
               to the Bargaining Unit Employee’s Hourly Rate such will be
               considered a violation of the Collective Bargaining Agreement and
               a grievance will be forthcoming.

(R. 11 at 4, Pg ID at 199).

       The Company rejected Pressley’s request, stating that, in its view, neither Article VII nor

Appendix A “expressly provide[s] for the contribution payable to the [Pension Trust] to be paid as

wages to the [Company’s employees].” (R. 11 at 7, Pg ID at 202). In response, on January 24,

2011, Pressley submitted another letter to the Company initiating the Grievance Procedure set forth

in Article XII. (R. 11 at 5, Pg ID at 200). Pressley claimed that this letter contained a “grievance”

as defined by the CBA and again requested that the amounts formerly paid by the Company to the

Pension Trust now be paid to employees as part of their hourly wages. (R. 11 at 5, Pg ID at 200).

At a March 17, 2011 meeting between the parties, and in a follow-up March 25, 2011 letter, the

Union’s attorney, James R. Waers (“Waers”), reiterated the grievance and explained the Union’s

position:

               You requested that we state our position. We told you that the
               pension amount should be paid directly as employee wages. You
               asked for the basis of our argument. We stated that the pension
               contributions were part of the economic package negotiated for the
               benefit of employees. Through the [Company’s] action in not
               meeting its obligations to continue participation in the [Pension

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No. 12-1633, O-N Minerals Co. v. Int’l Bhd. of Boilermakers, et al.


               Trust], these amounts have not been paid to the [Pension Trust]. As
               these amounts were part of the negotiated economic package for the
               benefit of employees, the intent of the parties was that these amounts
               should benefit the bargaining unit employees. However, since the
               [Company] has failed to make the necessary contributions to remain
               in good standing in the [Pension Trust], these amounts should be paid
               directly to employees.

(R. 6-3 at 2, Pg ID at 163). Additionally, Waers proposed that the parties waive the remaining steps

of the Grievance Procedure and proceed directly to arbitration to resolve the dispute. (R. 6-3 at 2-3,

Pg ID at 163-64).

       On April 14, 2011, the Company rejected the Union’s proposal, noting in a letter to Waers

that “the contract [does not] support arbitration of such a claim, or even provide jurisdiction for such

a claim to be heard.” (R. 6-4 at 2, Pg ID at 167). The Company questioned the arbitrability of the

Union’s claim on the grounds that the Union was seeking to have the terms of the CBA altered

through arbitration in contravention of Article XII, which expressly states that an arbitrator lacks

authority and jurisdiction to alter the terms of the CBA. (R. 6-4 at 2, Pg ID at 167 ; R. 1-2 at 46-47,

Pg ID at 56-57).

       On April 29, 2011, Waers called upon the Company to file a joint request for the

appointment of an arbitration panel to resolve the dispute. (R. 6-7 at 1, Pg ID at 174). The

Company responded on May 20, 2011 by filing a complaint commencing an action for a declaratory

judgment in the district court seeking a ruling that “[the Union] may not seek or compel arbitration

of the Grievance and . . . that [the Company] is not obligated to participate in an arbitration of the

Grievance.” (R. 1 at 10, Pg ID at 10). Then, on July 22, 2011, the Union filed a counterclaim

seeking an order to compel the parties to proceed to arbitration on the grounds that “[t]he subject

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No. 12-1633, O-N Minerals Co. v. Int’l Bhd. of Boilermakers, et al.


matter of the Union’s Grievance is within the scope of the grievance and arbitration provisions of

the [p]arties’ CBA.” (R. 6 at 13, Pg ID at 94). The parties filed cross motions for summary

judgment. (R. 11 at 1, Pg ID at 191; R. 12 at 1, Pg ID at 214). The district court granted summary

judgment in favor of the Company “because of the jurisdictional limit in Article XII [of the CBA].”

In its opinion, the district court reasoned:

               [The Union’s] grievance does not seek to enforce the parties’
               agreement, but to alter it —to amend the applicable scales to account
               for the pension trust’s decision to refuse contributions. [The
               Union’s] proposal may be a reasonable solution to an unforeseen
               change in circumstances. The proposed alteration, however, does not
               interpret or apply the collective bargain[ing] agreement’s terms. It
               contradicts them. [The Company] is not required to arbitrate this
               proposed alteration to the collective bargaining agreement.

(R. 18 at 2, Pg ID at 414). The Union now appeals.

       We review the district court’s decision to grant the Company’s motion for summary

judgment and to deny the Union’s motion for summary judgment de novo. United Steelworkers of

Am. v. Cooper Tire & Rubber Co., 474 F.3d 271, 277 (6th Cir. 2007). Similarly, we review “de

novo the district court’s decision [whether or not] to compel arbitration of a particular dispute.” Id.

                                           DISCUSSION

       We begin with “the presumption that national labor policy favors arbitration.” Id. With that

policy in mind, we analyze questions of arbitrability by applying the principles set forth by the

Supreme Court in three cases that have become known as the “Steelworkers Trilogy.” United

Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers v. Am.




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No. 12-1633, O-N Minerals Co. v. Int’l Bhd. of Boilermakers, et al.


Mfg. Co., 363 U.S. 564 (1960); United Steelworkers v. Enter. Wheel & Car Corp., 363 U.S. 593

(1960); see also AT & T Techs., Inc. v. Commc’ns Workers, 475 U.S. 643 (1986).

        Under this trilogy,“the question of arbitrability —whether a collective-bargaining agreement

creates a duty for the parties to arbitrate the particular grievance— is undeniably an issue for judicial

determination.” AT & T Techs., Inc., 475 U.S. at 649. As the Supreme Court explained:

                The Congress . . . has by § 301 of the Labor Management Relations
                Act, assigned the courts the duty of determining whether the reluctant
                party has breached his promise to arbitrate. For arbitration is a matter
                of contract and a party cannot be required to submit to arbitration any
                dispute which he has not agreed so to submit. Yet, to be consistent
                with congressional policy in favor of settlement of disputes by the
                parties through the machinery of arbitration, the judicial inquiry
                under § 301 must be strictly confined to the question whether the
                reluctant party did agree to arbitrate the grievance or did agree to
                give the arbitrator power to make the award he made.

Warrior & Gulf Nav. Co., 363 U.S. at 582 (emphasis added). The emphasized language suggests

a two-fold inquiry. The first is whether the reluctant party has agreed to arbitrate the grievance, and

the second is whether it has given the arbitrator the power to make the award. See Paper, Allied

Indus., Chem. & Energy Workers Int’l Union v. Air Products & Chems., Inc., 300 F.3d 667, 678 (6th

Cir. 2002); Sears, Roebuck & Co. v. Teamsters Local Union No. 243, 683 F.2d 154 (6th Cir. 1982)

(per curiam). Of course, the second inquiry assumes a case has gone to arbitration and the arbitrator

has made an award that is challenged by one of the parties.

        In this case, we deal with a pre-arbitration challenge by the Company to the application of

this arbitration clause based on the foregoing limitation. This complicates somewhat the inquiry that

we are called upon to make. If this were an appeal challenging an award made by the arbitrator, we



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No. 12-1633, O-N Minerals Co. v. Int’l Bhd. of Boilermakers, et al.


would ask whether the award “draws its essence from the collective bargaining agreement” —a

phrase which “in meaning if not in words” simply asks “whether the arbitrator had exceeded the

powers delegated to him by the parties.” Ethyl Corp. v. United Steelworkers of Am., 768 F.2d 180,

184 (7th Cir. 1985) (Posner, J.). We have likewise held that the test embodied in the phrase “draws

its essence from the collective bargaining agreement” requires us to “examine the award to

determine if it is fundamentally at odds with the collective bargaining agreement because arbitrators

do not have the authority to disregard or modify plain and unambiguous provisions of the

agreement.” Morgan Servs., Inc. v. Local 323, Chicago & Cent. States Joint Bd., Amalgamated

Clothing & Textile Workers Union, AFL-CIO, 724 F.2d 1217, 1220 (6th Cir. 1984) (internal

quotations and citations omitted); see also Salary Policy Employee Panel v. Tennessee Valley Auth.,

731 F.2d 325, 331-32 (6th Cir. 1984).

       Where a reluctant party seeks to enjoin arbitration, this is not an exercise in which a court

can engage because there is no award to test against the applicable standard. Instead, a court is

being asked to decide in advance that any remedy the arbitrator could award would not be consistent

with his authority under the collective bargaining agreement. Because a labor arbitrator is more

knowledgeable and better acquainted with the collective bargaining process than a district judge,

there is an argument to be made that he should be given an opportunity to exercise his judgment in

formulating a remedy subject to subsequent review under the post-award review standard. Thus,

the appropriate standard at the threshold of the arbitration process should be informed by the

presumption in favor of arbitrability that normally prevails in a proceeding to compel arbitration of

a collective bargaining agreement governed by a “broad” arbitration clause. Teamsters Local Union

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No. 12-1633, O-N Minerals Co. v. Int’l Bhd. of Boilermakers, et al.


No. 89 v. Kroger Co., 617 F.3d 899, 904-5 (6th Cir. 2010). A party seeking to enjoin arbitration

based on the authority of the arbitrator should bear the burden of overcoming that presumption.

       Turning to the present case, the relevant portion of the CBA’s arbitration clause provides:

               An arbitrator to whom any grievance shall be submitted in
               accordance with the provisions of this Article shall have jurisdiction
               and authority to interpret and apply the provision of this Agreement
               insofar as shall be necessary to the determination of such grievance,
               but he shall not have jurisdiction or authority to alter in any way the
               provision of the agreement.

(R. 1-2 at 46-47, Pg ID at 66-67) (emphasis added). We assume, without deciding, that the CBA’s

arbitration clause can be described as “broad” because it contains language found in similar clauses

that have been so construed. See e.g., United Steelworkers of Am. v. Mead Corp., Fine Paper Div.,

21 F.3d 128, 131 (6th Cir. 1994). We likewise assume that the dispute over whether the Company

breached the CBA would be subject to arbitration notwithstanding the fact that the Company appears

to be without fault. The issue then turns on whether we can say with positive assurance that the

restriction on the authority of the arbitrator “to alter in any way the provisions of the agreement” is

susceptible to an interpretation that would justify the award that the Union seeks. AT & T Techs.,

Inc., 475 U.S. at 650.

       The Union argues that, “[n]otwithstanding the Pension Trust’s refusal to accept any further

contributions from the Company, . . . the Company is violating the CBA by paying less than the

complete economic package that it agreed to pay for its employee’s benefits.” Appellant’s Br. at

18. Moreover, it continues, “the Company should be required to continue making these payments




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No. 12-1633, O-N Minerals Co. v. Int’l Bhd. of Boilermakers, et al.


for the benefit of its employees in the form of wages.” Appellant’s Br. at 18. Thus, as the Union

has repeatedly told the Company:

               It is the position of the Union that contributions to the Boilermakers-
               Blacksmith National Pension Plan provided in Appendix A (Benefits
               Agreement) of the current Collective Bargaining Agreement should
               be restored to the Bargaining Unit Employee’s Hourly Rate effective
               December 1, 2010. Please be advised that if the monies are not added
               to the Bargaining Unit Employee’s Hourly Rate such will be
               considered a violation of the Collective Bargaining Agreement and
               a grievance will be forthcoming.

(R. 11 at 4, Pg ID at 199).

       On its face, as we have previously observed, we assume that a dispute over whether the

Company breached its obligation under the CBA, would fall within the broad scope of the provisions

of the arbitration clause. Nevertheless, there remains the second step of the inquiry which the

Supreme Court held is for a court to decide, namely, whether the reluctant party agreed to give the

arbitrator the power to make the award that, in this case, the Union seeks. Util. Workers Union of

Am., Local 118 v. Ohio Edison Co., No. 97-4332, 1998 WL 869941, at *3 n.1 (6th Cir. Dec. 3,

1998) (per curiam). We believe that in this case it is possible to say with positive assurance that the

language of the arbitration clause is not susceptible to an interpretation that would allow an

arbitrator to convert the pension contributions into hourly wages. Such an exercise, which is the

only remedy the Union seeks, would require the arbitrator to alter two separate provisions of the

CBA —one that establishes hourly wage scales, Article VII, and another that establishes

contribution rates to the Pension Trust, Appendix A. As the district court aptly observed, the

remedy sought by the Union, if awarded by the arbitrator, would alter the CBA by “taking two



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No. 12-1633, O-N Minerals Co. v. Int’l Bhd. of Boilermakers, et al.


existing scales (the standard hourly wage scales and pension contribution scales) and combining

them to come up with a new set of scales.” (R. 18 at 9, Pg ID at 421).

       An analysis of the effect of such an alteration only serves to confirm this conclusion. As we

earlier observed, a “Dock Technician I” earns $19.00 per hour in year one of the Agreement, $19.25

in year two, $19.73 in year three and $20.22 in year four. (R. 1-2 at 16, Pg ID at 26). The Company

is required to contribute for each hour worked by the employee $2.10 to the Pension Trust in year

one of the Agreement, $2.20 in year two, $2.25 in year three and $2.30 in year four. (R. 1-2 at 56,

Pg ID at 66). If the arbitrator made the award that the Union’s grievance sought, that same Dock

Technician I who was earning $19.73 per hour in the year that the Company was expelled from the

Pension Trust would receive a $2.25 hourly wage increase, now would earn $21.98 per hour.

Moreover, a dollar paid in the form of a wage is not equivalent to a dollar paid in the form of a

pension contribution. Unlike pension contributions, wages are subject to federal payroll taxes.

Indeed, “the payroll costs associated with every dollar of wages paid to an employee at [the

Company’s] Plant include FICA and Medicare 7.65%, workers compensation 4%, overtime and

other premiums 30%, for a total of 41.65%.” (R. 13-2 at 2, Pg ID at 368). Of course, any increase

in an amount equal to the pension contribution rate would not even make the employees whole

because their wages also are subject to both FICA and income taxes. This remedy is not one that

the arbitrator has the authority to award. Consequently, the Company’s motion for a declaratory

judgment that the Union may not seek or compel arbitration was properly granted.




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                                        CONCLUSION

       The judgment of the district court is affirmed.




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No. 12-1633, O-N Minerals Co. v. Int’l Bhd. of Boilermakers, et al.

       KAREN NELSON MOORE, DISSENTING. The majority holds that the Union’s

grievance is not arbitrable because the Company did not “agree[] to give the arbitrator the power to

make the award that, in this case, the Union seeks.” Maj. Op. at 11. However, the arbitrator’s

authority to resolve a dispute does not turn on whether the parties have requested a precise remedy,

which the arbitrator in its discretion may or may not award. I believe that the dispute involving the

Company’s compliance with the pension provisions of the CBA was arbitrable under the

Agreement’s terms, and I therefore respectfully dissent.

       It is true, as the majority asserts, that neither party may “be forced to arbitrate any dispute

that it has not obligated itself by contract to submit to arbitration.” United Steelworkers v. Mead

Corp., Fine Paper Div., 21 F.3d 128, 131 (6th Cir. 1994). But the Company and the Union did

obligate themselves under the terms of the CBA to arbitrate grievances that failed to reach resolution

through more informal dispute-resolution processes. “Grievance” is a broadly defined term: it

covers any “complaint or request of an employee which involves the interpretation or application

of, or compliance with, the provisions of this Agreement.” R. 1-2 (CBA at 43) (Page ID #53)

(emphasis added). The gravamen of the Union’s complaint was that the Company was no longer

in compliance with the pension provisions of Appendix A. Thus, because informal resolution

processes failed, the Union’s complaint appears to be a grievance subject to arbitration.

       My fundamental disagreement with the majority is over its interpretation of the provision

of the CBA that describes the arbitrator’s authority. The CBA provides that an impartial arbitrator

“shall have jurisdiction and authority to interpret and apply the provision of this Agreement insofar

as shall be necessary to the determination of such grievance, but he shall not have jurisdiction or


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No. 12-1633, O-N Minerals Co. v. Int’l Bhd. of Boilermakers, et al.

authority to alter in any way the provision of the Agreement.” Id. at 46–47 (Page ID #56–57). The

majority asserts that the final clause of this provision excludes a complaint from an arbitrator’s

authority if a party proposes a desired remedy in addition to making a complaint and if the proposed

remedy would require a change in the terms of the CBA. In adopting this interpretation, the majority

assumes that the arbitrator would accede to the Union’s request for a specific remedy—namely, the

transfer of pension payments to flat wage payments—and concludes that, because the requested

remedy would exceed the scope of the arbitrator’s authority, the grievance need not be submitted

to arbitration at all.

        But the majority’s assumption impermissibly invades the arbitrator’s jurisdiction. An

arbitrator is not cabined by the “‘technical limits of the submission.’” See Bhd. of Locomotive

Eng’rs & Trainmen v. United Transp. Union, 700 F.3d 891, 902 (6th Cir. 2012) (quoting Johnston

Boiler Co. v. Local Lodge No. 893, Int’l Bhd. of Boilermakers, 753 F.2d 40, 43 (6th Cir. 1985)).

Indeed, “[b]ecause the authority of arbitrators is a subject of collective bargaining, just as is any

other contractual provision, the scope of the arbitrator’s authority is itself a question of contract

interpretation that the parties have delegated to the arbitrator.” W.R. Grace & Co. v. Local Union

759, Int’l Union of the United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 765

(1983). Thus, although the Union made a specific request for the pension funds to be redistributed

to its members as flat wages, the arbitrator would not be bound to consider only the Union’s

proposal. Instead, the arbitrator has the authority to consider a range of available solutions, some

of which would not require an alteration in the terms of the CBA.




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No. 12-1633, O-N Minerals Co. v. Int’l Bhd. of Boilermakers, et al.

        The majority’s discussion is thus premature. The final clause of the contractual provision

at issue is a limitation upon the scope of authority only once a grievance has entered arbitration.

It limits the range of remedies an arbitrator may fashion, but not the arbitrator’s threshold ability to

consider the grievance. See United Steelworkers v. Timken Co., 717 F.2d 1008, 1014–15 (6th Cir.

1983). We may engage in the analysis utilized by the majority here only after the arbitrator makes

an award.

        To be sure, there may be a narrow class of grievances that are beyond the authority of the

arbitrator because they can be settled only by imposing new terms. However, such grievances arise

when the parties seek resolution of issues entirely neglected by the CBA. See Pennsylvania Power

Co. v. Local Union #272, IBEW, 886 F.2d 46, 48 (3d Cir. 1989) (compensation for a newly created

welder position); Lodge 802, Int’l Bhd. of Boilermakers v. Pennsylvania Shipbuilding Co., 835 F.2d

1045, 1046 (3d Cir. 1987) (wages for a new job duty not addressed in the CBA). The Union does

not seek for the arbitrator to supply “new” terms here, but rather to interpret the existing terms in

light of an unanticipated situation. See Pennsylvania Power Co., 886 F.2d at 48 (concluding that

a clause similar to the one at issue in the instant case “limit[ed] the scope of arbitrable issues to those

involving the interpretation or application of terms and conditions of employment that the parties

have themselves agreed to in their contract”) (internal quotation marks omitted and emphasis

added). The parties agreed here that the Company would pay wages and pension funds in defined

amounts, and the arbitrator must interpret how those terms will operate now that the Pension Trust

has become unavailable.




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       This deference to the arbitrator’s authority is consistent with the “strong presumption” of

arbitrability applied to complaints arising under broad arbitration clauses. Teamsters Local Union

No. 89 v. Kroger Co., 617 F.3d 899, 905 (6th Cir. 2010); see also Mead, 21 F.3d at 131. The

Company cannot overcome this presumption because the CBA does not expressly exclude

complaints with impermissible proposed remedies from arbitration. See Mead, 21 F.3d at 131. Nor

is there other “forceful evidence of a purpose to exclude the claim from arbitration.” AT&T Techs.,

Inc. v. Commc’ns Workers, 475 U.S. 643, 650 (1986) (internal quotation marks omitted).

       Our “limited function” as a federal court “is to ascertain whether the party seeking arbitration

is making a claim which on its face is governed by the contract.” United Steelworkers v. Saint

Gobain Ceramics & Plastics, Inc., 505 F.3d 417, 419 (6th Cir. 2007) (en banc) (internal quotation

marks omitted). At this point, I cannot say “with positive assurance that the arbitration clause is not

susceptible of an interpretation that covers the asserted dispute.” AT&T Techs., Inc., 475 U.S. at

650. Therefore, the claim is arbitrable, and the district court erred in granting summary judgment

in favor of the Company. I would instead grant summary judgment in favor of the Union and

compel the Company to enter arbitration. Accordingly, I respectfully dissent.




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