                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 11-2536
                                    _____________

            UNITED FOOD AND COMMERCIAL WORKERS LOCAL 23,
                                        Appellant

                                            v.

         GIANT EAGLE MARKETS COMPANY, a Pennsylvania Corporation
                          ______________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             (D.C. Civil No. 2:10-cv-01497)
                    District Judge: Honorable William L. Standish
                                    ______________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    March 8, 2012

         Before: McKEE, Chief Judge, SCIRICA and AMBRO, Circuit Judges

                             (Opinion filed: August 3, 2012)
                                      __________

                                       OPINION
                                      __________

McKEE, Chief Judge.

      United Food and Commercial Workers Local 23 (“the Union”) appeals the District

Court’s order granting Giant Eagle Markets Company’s motion to dismiss the Union’s

complaint in this action filed pursuant to section 301 of the Labor Management Relations

Act, 29 U.S.C. § 185. For the reasons that follow, we will affirm.
                                                I.

         Since we write primarily for the parties, who are familiar with the background of

this case, we discuss the events leading to this appeal only briefly. Giant Eagle operates

grocery and convenience stores in western Pennsylvania, among other places. Certain

Giant Eagle employees are represented by the Union. Giant Eagle and the Union are

signatories to a collective bargaining agreement (“CBA”) that covers certain Giant Eagle

“Grocery” employees (i.e., employees in Giant Eagle’s Grocery, Bakery, and Produce

departments). The CBA includes grievance and arbitration procedures, which apply

when there are “differences or complaints over the interpretation or application of the

terms of this Agreement.” (App. at 45a.)

         In September 2010, the Union filed a grievance, alleging that Giant Eagle had

violated two parts of the CBA — a subsection of the “Recognition and Jurisdiction”

provision, 1 and the “Separate Contracts” provision 2 — by denying Union representatives


1
    This subsection, set forth in Article 2.1A of the CBA, states, in pertinent part, that

                        [t]he Company recognizes the Union as the sole and
                 exclusive bargaining agent for Grocery, Bakery and Produce
                 Department employees working in the Company’s stores as
                 clerks which are operated [or] which may be operated in the
                 various counties of Pennsylvania, Ohio and West Virginia as
                 defined by the jurisdiction of Local 23 . . . .

(App. at 26a.)
2
    The Separate Contracts provision, set forth in Article 28 of the CBA, provides that

                        [t]he Company agrees that any future store that

                                                 2
access to several recently-acquired non-union grocery stores. Giant Eagle denied the

grievance and took the position that the matter was not arbitrable under the CBA. In

response, the Union filed a complaint in the District Court pursuant to § 185, seeking to

compel Giant Eagle to submit the grievance to arbitration. Shortly thereafter, the Union

filed another grievance, alleging that Giant Eagle’s refusal to allow Union representatives

access to its non-union convenience stores violated the CBA’s Separate Contracts

provision. As before, Giant Eagle took the position that this type of grievance was not

arbitrable under the CBA. The Union then amended its complaint, seeking to compel

Giant Eagle to submit both grievances to arbitration.

       The District Court granted Giant Eagle’s motion to dismiss the amended

complaint pursuant to Fed. R. Civ. P. 12(b)(6), based upon its conclusion that the

grievances at issue were not arbitrable as a matter of law. The Union now appeals.

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over a district court’s decision to grant a motion to dismiss pursuant to Rule 12(b)(6).

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220 (3d Cir. 2011).


              replaces another Corporate store will be opened as Corporate
              and the Company will not use store closing language (Article
              9.23) on the closing store. Any other new stores that open
              will be opened under separate contracts with separate
              seniority. This paragraph does not restrict the Company’s
              right to franchise stores, nor does it limit in any way any of
              the other provisions in Article 9.23.

(App. at 64a.) None of the stores at issue here “replaced” an existing Corporate store.

                                             3
       In support of its motion to dismiss, Giant Eagle relied on our decision in Rite Aid

of Pa., Inc. v. United Food and Commercial Workers Union, Local 1776, 595 F.3d 128

(3d Cir. 2010), which concerned the same type of grievances at issue here. There we

concluded that the union’s grievances were not arbitrable under the governing CBA

because the terms of that CBA were not implicated by those grievances. See id. at 135-

36. We explained:

                     In our view, a right of Union access to newly acquired
              stores simply cannot be plausibly derived from the
              recognition clause. The recognition clause merely establishes
              the Union’s position as Rite Aid’s employees’ exclusive
              bargaining agent and defines the range of matters subject to
              bargaining. It does not describe or purport to include
              anything resembling the Union’s claimed right to access
              newly-acquired stores.

Id. at 134.

       The District Court rejected the Union’s attempts to distinguish Rite Aid, and held

that this dispute was controlled by the majority opinion in Rite Aid. On appeal, the Union

again attempts to distinguish its case from Rite Aid. For substantially the reasons

provided by the District Court, we conclude that this dispute is governed by the holding

in Rite Aid, and we reject the Union’s attempt to draw a meaningful distinction. 3

       Accordingly, we will affirm the District Court’s order granting Giant Eagle’s

motion to dismiss.

3
  To the extent the Union’s briefing on appeal could be viewed as implicitly challenging
the majority’s analysis in Rite Aid, we note that we are bound by that decision. See
JELD-WEN, Inc. v. Van Brunt (In re Grossman’s Inc.), 607 F.3d 114, 116-17 (3d Cir.
2010) (en banc).

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