                                                                           FILED
                                                               United States Court of Appeals
                                     PUBLISH                           Tenth Circuit

                   UNITED STATES COURT OF APPEALS                   December 9, 2014
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS,
LOCAL #111,
          Plaintiff - Appellant,
and
DOMINGO N. MORENO; DAVID L.
WILLIAMS; GUY E. FORTI;
GERALD E. KING; VICKI
WILLIAMS,
               Plaintiffs,
v.                                                       No. 13-1207
PUBLIC SERVICE COMPANY OF
COLORADO; XCEL ENERGY INC.
EMPLOYEE WELFARE BENEFIT
PLAN, a/k/a The Public Service Company
and Participating Subsidiary Companies
Retirees’ Medical Managed Care/Medicare
Coordinated Plan,

         Defendants - Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                  (D.C. No. 1:12-CV-01694-PAB-MEH)


Ellen M. Kelman of Buescher, Kelman & Perera, P.C., Denver, Colorado (Thomas B.
Buescher and Andrew H. Turner of Buescher, Kelman & Perera, P.C., Denver, Colorado,
with her on the briefs) for Plaintiff-Appellant.

Charles C. Jackson of Morgan, Lewis & Bockius LLP, Chicago, Illinois (Christopher J.
Boran of Morgan, Lewis & Bockius LLP, Chicago, Illinois; Lisa Hogan and William C.
Berger of Brownstein Hyatt Farber Schreck, LLP, Denver, Colorado; Ronald E. Manthey
and Ellen L. Perlioni of Morgan, Lewis & Bockius LLP, Dallas, Texas; with him on the
briefs) for Defendants-Appellees.


Before HARTZ, EBEL, and PHILLIPS, Circuit Judges.


PHILLIPS, Circuit Judge.



   In 2009, the Public Service Company of Colorado entered into a collective-bargaining

agreement with the International Brotherhood of Electrical Workers Local #111, a union

that represents some of the Company’s employees. About two years later, the Company

unilaterally modified its retired workers’ healthcare benefits by increasing their

copayment obligations for prescription drugs. The Union claimed that the Company had

violated the collective-bargaining agreement by doing so and demanded arbitration.

When the Company refused to arbitrate, the Union sued and asked the district court to

stay the case and compel arbitration. When the district court denied that motion, the

Union filed an interlocutory appeal.

   This appeal presents two questions sharing a common theme: where does this case

belong? The first question is whether it belongs in front of us—that is, whether appellate

jurisdiction exists to hear it. We conclude that appellate jurisdiction does indeed exist

under the Federal Arbitration Act. The second question is whether this case belongs in a

courtroom or a conference room—that is, whether the district court should have sent the

case to arbitration. We conclude that the district court properly kept the case in the

courtroom because the collective-bargaining agreement’s arbitration provision is not



                                          -2-
susceptible to an interpretation that covers disputes over retired workers’ healthcare

benefits. Thus, we affirm the district court’s order and remand the case to the district

court for further proceedings.1

                                           FACTS

   The Company and the Union go way back. They entered into their first collective-

bargaining agreement in 1946, and they have entered into a new one every few years ever

since.

   In 1990, the parties signed a letter of understanding that sowed the seed for the

present dispute. Among other things, the letter amended Article 11, § 3 of the 1989–1992

collective-bargaining agreement to address healthcare plans for retiring employees. Those

plans touched on several topics, including retirees’ copayment obligations for prescription

drugs—the subject of the dispute here.

   In the operative 2009–2014 collective-bargaining agreement (the “Agreement”),

Article 11, § 3 references a separate plan providing for retired workers’ healthcare

benefits:

         For the term of this Agreement, health care benefits for employees and
         dependents will be provided according to the terms of the Public Service
         Managed Health Care Plan. Retirees’ and future retirees’ and their
         dependents’ health care benefits will be provided according to the terms of
         the Retirees’ Medical Managed Care/Medicare Coordinated Plan (M/M).
         Future plan changes in the Managed Health Care Plan will also be reflected
         in the retiree plan for individuals under age 65. These changes do not affect
         the medical coverage of retirees with Medical plans other than (M/M).

App. vol. 3, at 425.


   1
       We grant the Union’s motion to take judicial notice.

                                             -3-
   We pause here to describe some other provisions in the Agreement. Article 21 outlines

the grievance procedure. It says that an aggrieved employee may attempt to resolve an

alleged grievance either informally or through Article 21’s formal grievance process––a

process intended to provide “prompt, equitable and common sense adjustment of alleged

grievances relating to hours, wages or conditions of employment as covered by this

Agreement.” Id. at 570.

   The grievance procedure consists of three steps. At step one, a Union representative

discusses an employee’s alleged grievance with the employee’s immediate supervisor or

department head. If the grievance remains unresolved after step one, it moves to step two,

where a Union committee and a Company committee attempt to resolve it. Failure at step

two leads to step three, where the Union’s general grievance committee and a higher-

ranking Company committee attempt to resolve the dispute. If the employee’s grievance

remains unresolved after step three, the Union may notify the Company of its desire for

arbitration.

   Article 22 outlines the arbitration procedure. It says that when a dispute “relating to

hours, wages, or conditions of employment, as covered by this Agreement” remains

unresolved after the three-step grievance procedure, “then, and in that event, the

Company and Union shall [go to arbitration].” Id. at 573.

   In fall 2011, the Union invoked these procedures after the Company announced an

increase in retired workers’ copayment obligations for prescription drugs. A few weeks

after the announcement, an employee, Robert Estrada, and the Union filed a step-one




                                          -4-
grievance on behalf of both retired workers and current employees. Estrada and the

Union claimed that the announced change violated Article 11, § 3 of the Agreement.

   The Company denied the grievance at step one. It reasoned that because the change

affected only retired workers, the dispute didn’t come within the scope of the grievance

and arbitration provisions, which cover only disputes over employees’ hours, wages, or

conditions of employment. At step two, the Company again denied the grievance,

reasserting its position that the grievance and arbitration provisions didn’t apply because

the dispute related to retired workers’ healthcare benefits, not employees’ hours, wages,

or conditions of employment. The Company denied the grievance at step three as well.

   Having exhausted the grievance procedure, the Union sent the Company a letter

demanding arbitration. The Company refused to arbitrate that part of the grievance

brought on behalf of retired workers, but it expressed its willingness to arbitrate to the

extent the Union was asserting a contractual violation regarding the retirement benefits of

its current employees. The Union rejected the Company’s offer to arbitrate on that limited

basis; it wanted to arbitrate for retired workers as well.

   As a result, the Union and several retired workers sued the Company in the United

States District Court for the District of Colorado. The named individual plaintiffs are all

retired workers who receive healthcare benefits under the MM Plan. The Union brought

its first claim under 29 U.S.C. § 185(a), a provision of the Labor Management Relations

Act, alleging that the Company had violated the Agreement by refusing to arbitrate. For

relief on that claim, the Union asked the district court to stay the case and compel

arbitration.


                                             -5-
   A few months later, the Union asked for judgment on the pleadings on its first claim.

It titled the motion, “Plaintiffs’ Motion for Judgment on the Pleadings and on First Claim

for Relief, and Motion to Stay Proceedings Pending Arbitration.” App. vol. 1, at 49. The

motion asked the district court only to stay the case and compel arbitration. Not

surprisingly, the Company opposed the motion, arguing that it had never agreed to

arbitrate disputes over retired workers’ healthcare benefits.

   In the end, the district court denied the Union’s motion, concluding that forceful

evidence showed that the Company and the Union had not agreed to arbitrate disputes

over retired workers’ healthcare benefits. In short, the district court concluded that the

dispute was not arbitrable––a term that refers to “whether an arbitration clause in a

concededly binding contract applies to a particular type of controversy.” BG Grp. PLC v.

Republic of Argentina, 134 S.Ct. 1198, 1206 (2014).

   The Union timely filed this interlocutory appeal. Unsure about our appellate

jurisdiction, we ordered the parties to brief the question. Having received that briefing,

we’ll discuss our appellate jurisdiction first. We’ll then discuss the arbitrability issue.


                                       DISCUSSION

1. Appellate Jurisdiction

   Generally, under the Federal Arbitration Act (“FAA”), if a party files a motion

unmistakably seeking only an order staying the action and compelling arbitration, and the

district court denies the motion, the party may take an interlocutory appeal. Here, the

Union did just that: it asked for an order staying the case and compelling arbitration,


                                             -6-
which the district court denied. We must decide whether appellate jurisdiction exists to

hear the Union’s interlocutory appeal from that order. We conclude that it does.

   For the most part, we may review only the final decisions of a district court. Miller v.

Basic Research, LLC, 750 F.3d 1173, 1175 (10th Cir. 2014) (citing 28 U.S.C. § 1291).

The FAA, however, contains certain statutory exceptions to that general rule, permitting

interlocutory appeals from some district-court orders. Conrad v. Phone Directories Co.,

585 F.3d 1376, 1380 (10th Cir. 2009). As relevant here, the FAA allows an interlocutory

appeal from an order denying a motion to stay under 9 U.S.C. § 3. See 9 U.S.C.

§ 16(a)(1)(A). It also allows an interlocutory appeal from an order denying a motion to

compel arbitration under 9 U.S.C. § 4. See id. § 16(a)(1)(B).

   We gave these provisions an interpretive gloss in Conrad. There, we held that to

invoke our interlocutory appellate jurisdiction under the FAA, a party must either move

to stay the litigation and compel arbitration explicitly under the FAA or must make it

plainly apparent that the party seeks only the remedies provided by the FAA. Conrad,

585 F.3d at 1385. Elaborating on the first option, we said that “[t]he first, simplest, and

surest way to guarantee appellate jurisdiction under § 16(a) is to caption the motion in the

district court as one brought under FAA §§ 3 or 4.” Id. And elaborating on the second

option, we said that “[i]f a motion denied by the district court is not explicitly styled as a

motion under the FAA,” then “the court should look to the relief requested in the motion.

If the essence of the movant’s request is that the issues presented be decided exclusively

by an arbitrator and not by any court, then the denial of that motion may be appealed

under § 16(a).” Id. at 1385–86.


                                            -7-
   Conrad thus stands for the general proposition that when a party files a motion

unmistakably seeking only an order staying the action and compelling arbitration and the

district court denies the motion, the party may take an interlocutory appeal under the

FAA.

   We think that’s what happened here. Although the Union did not explicitly title its

motion as one brought under the FAA, it did title the motion, in part, “Motion to Stay

Proceedings Pending Arbitration.” App. vol. 1, at 49. Faithful to that title, the motion

argued that the district court should stay the case and order the parties to arbitration. It

asked only for that relief. In brief, because the Union sought only an order staying the

case and compelling arbitration and the district court denied the motion, we have

appellate jurisdiction under the FAA to entertain this interlocutory appeal.

   Yet the Company tells us things aren’t quite what they seem. It says the FAA can’t

furnish appellate jurisdiction here because the FAA simply doesn’t apply. To be clear, the

Company doesn’t ground its argument in the FAA’s coverage provision, the gist of which

is that a written arbitration provision in a contract “shall be valid, irrevocable, and

enforceable.” 9 U.S.C. § 2. The Company doesn’t dispute that the Agreement’s arbitration

provision fits within that language.

   Instead, the Company makes a more sweeping argument. It contends that the FAA

categorically excludes all collective-bargaining agreements. For that proposition, the

Company points to 9 U.S.C. § 1, which states that the FAA doesn’t apply “to contracts of

employment of seamen, railroad employees, or any other class of workers engaged in

foreign or interstate commerce.” 9 U.S.C. § 1. According to the Company, this provision


                                            -8-
means the FAA categorically excludes all employment contracts—collective-bargaining

agreements included. Not a bad argument, but we’re unpersuaded.

   To be sure, there was a time when this circuit agreed with the Company’s argument. A

long time ago, we stated—albeit without offering any rationale—that “[l]abor contracts

are specifically excluded from the federal arbitration act.” Mercury Oil Ref. Co. v. Oil

Workers Int’l Union, 187 F.2d 980, 983 (10th Cir. 1951), abrogated on other grounds by

Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 450–51 & n.1 (1957). Nearly 40

years later, we provided the missing rationale, reasoning that the FAA excludes all labor

contracts because the FAA excludes all “contracts of employment” and “[c]ollective

bargaining agreements are ‘contracts of employment’ within the meaning of this

exclusion.” United Food & Commercial Workers, Local Union No. 7R v. Safeway Stores,

Inc., 889 F.2d 940, 944 (10th Cir. 1989).

   But about a decade after United Food, the precedential foundation for the Company’s

argument started to erode. In McWilliams v. Logicon, Inc., we construed the FAA’s

exemption clause more narrowly, holding that it excludes only employment contracts for

seamen, railroad employees, and other workers “actually engaged in the channels of

foreign or interstate commerce.” 143 F.3d 573, 576 (10th Cir. 1998). Of course,

McWilliams stood in tension with United Food’s holding that the FAA categorically

excludes all employment contracts.

   Thankfully, the Supreme Court soon resolved this dissonance in our case law in

Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001). Vindicating the McWilliams




                                            -9-
view, the Court held that the FAA excludes only employment contracts of transportation

workers engaged in foreign or interstate commerce. Id. at 119.

   That holding razes the Company’s argument because it destroys the rationale for

thinking that the FAA categorically excludes all collective-bargaining agreements. Recall

the rationale: the FAA excludes all employment contracts; collective-bargaining

agreements are employment contracts; therefore, the FAA excludes all collective-

bargaining agreements. Circuit City wipes out that reasoning by wiping out the starting

premise.

   But Circuit City didn’t wipe out everything: United Food’s holding that a collective-

bargaining agreement is an employment contract remains good law. 889 F.2d at 944. So

by inserting Circuit City’s holding into United Food’s formula, we can begin to see where

things stand: the FAA excludes only employment contracts of transportation workers

engaged in foreign or interstate commerce; collective-bargaining agreements are

employment contracts; therefore, the FAA excludes only collective-bargaining

agreements that cover transportation workers engaged in foreign or interstate commerce.

See Int’l Bhd. of Teamsters Local Union No. 50 v. Kienstra Precast, LLC, 702 F.3d 954,

955–56 (7th Cir. 2012) (recognizing that the FAA excludes a collective-bargaining

agreement only if the agreement covers transportation workers within Circuit City’s

meaning).

   All this adds up to a simple point: the FAA’s exemption clause does not categorically

exclude all collective-bargaining agreements, and we reject the Company’s argument to

the contrary.


                                          - 10 -
   Even so, the Company argues there is yet another statute that renders the FAA

inapplicable to collective-bargaining agreements—29 U.S.C. § 185. Section 185 makes

collective-bargaining agreements enforceable in federal courts. See 29 U.S.C. § 185(a).

But according to the Supreme Court, the statute does a lot more than that—it authorizes

federal courts to fashion a body of federal common law for enforcing collective-

bargaining agreements. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 450–51,

456 (1957). And according to the Company, that body of federal common law now

occupies the field for collective-bargaining agreements, thereby excluding the FAA.

   We don’t share the Company’s view that § 185 and the FAA are mutually exclusive.

Instead, we agree with the Seventh Circuit:

      Section [185] is of course more than a jurisdictional and procedural statute;
      the Supreme Court has held that it is a directive to the courts to create a
      federal common law of collective bargaining contracts. The Federal
      Arbitration Act has no particular reference to such contracts and so if there
      were a conflict between the two statutes we would resolve it in favor of
      section [185]. Where there is no conflict, however, and the FAA provides a
      procedure or remedy not found in section [185] but does not step on section
      [185’s] toes, then, … we apply the Federal Arbitration Act.

Smart v. IBEW, Local 702, 315 F.3d 721, 724–25 (7th Cir. 2002) (Posner, J.) (citation

omitted).

   This gets us a step closer to a definitive answer on our appellate jurisdiction, but not

all the way home. As a final step, we need to know whether the FAA’s interlocutory-

appeal provisions clash with anything in § 185 or its attendant federal common law. And

there again we’re in accord with the Seventh Circuit’s conclusion that the answer is no:

“whether a particular type of interlocutory order is immediately appealable . . . is a



                                          - 11 -
quintessentially procedural question to which the Federal Arbitration Act provides an

answer that creates no tension with anything in either [§ 185] or the common law of

collective bargaining agreements that has evolved under it . . . .” Pryner v. Tractor Supply

Co., 109 F.3d 354, 359 (7th Cir. 1997) (Posner, C.J.).

   Pulling this discussion together, we hold the following: if (1) a collective-bargaining

agreement contains a written arbitration provision covered by 9 U.S.C. § 2; (2) the

agreement does not cover transportation workers engaged in foreign or interstate

commerce; (3) a party to the agreement files a motion unmistakably seeking only an

order staying the case and compelling the parties to arbitration; and (4) the district court

denies the motion—then appellate jurisdiction exists under 9 U.S.C. § 16(a) to hear an

interlocutory appeal from that order.

   Here, no one disputes that the Agreement contains a written arbitration agreement

covered by 9 U.S.C. § 2. Moreover, no one contends that the employees covered by the

Agreement are transportation workers within Circuit City’s meaning. And as

demonstrated above, the Union filed a motion unmistakably seeking only an order

staying the case and compelling arbitration, and the district court denied that motion.

Thus, we conclude that appellate jurisdiction exists under the FAA to hear the Union’s

interlocutory appeal from the district court’s order.


2. Arbitrability

   When a collective-bargaining agreement contains an arbitration provision and a

dispute arises between the parties to the agreement, a court should send the dispute to


                                            - 12 -
arbitration unless it can say with positive assurance that the arbitration provision is not

susceptible to an interpretation that covers the dispute. The question here is whether we

can say as much about the Agreement’s arbitration provision and this dispute over retired

workers’ healthcare benefits. We think we can.

   The Supreme Court has held that when a collective-bargaining agreement contains an

arbitration provision, “there is a presumption of arbitrability in the sense that an order to

arbitrate the particular grievance should not be denied unless it may be said with positive

assurance that the arbitration clause is not susceptible of an interpretation that covers the

asserted dispute.” AT&T Techs., Inc. v. Commc’ns Workers, 475 U.S. 643, 650 (1986)

(internal quotation marks omitted); see id. at 654–55 (Brennan, J., concurring). This rule

reconciles the principle that “a party cannot be required to submit to arbitration any

dispute [that] he has not agreed so to submit,” id. at 648, with the federal policy and

presumption favoring arbitration in the labor context, id. at 650–51.

   Here, we don’t think the Agreement’s arbitration provision is susceptible to an

interpretation that covers disputes over retired workers’ healthcare benefits. Instead, we

think Supreme Court precedent and well-established principles of construction show that

the arbitration provision covers only disputes over the hours, wages, or employment

conditions of employees.

   We start with Supreme Court precedent. In Allied Chemical & Alkali Workers v.

Pittsburgh Plate Glass Co., the Supreme Court said that “wage[s],” “hours,” and

“working conditions” are words that refer to employees—i.e., they are “terms of active

employment.” 404 U.S. 157, 173 (1971) (emphasis added). In fact, in the same breath the


                                           - 13 -
Court indicated that these words do not refer to retired workers. Id. That’s significant

because the arbitration provision here uses those same words, stating that it applies to

disputes over “hours, wages, or conditions of employment.” App. vol. 3, at 573. While

Allied Chemical was interpreting the term “employee” in the National Labor Relations

Act, the court did so by examining and applying the ordinary meaning of the words and

concepts involved. So by putting Allied Chemical and the arbitration provision together,

we’re left with a firm impression that the provision covers only disputes relating to

employees’ hours, wages, or conditions of employment, not disputes relating to retired

workers’ healthcare benefits.

   The ejusdem generis canon reinforces this interpretation. The canon holds that

“[w]here general words follow an enumeration of two or more things, they apply only to

persons or things of the same general kind or class specifically mentioned.” Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 199 (2012);

see Black’s Law Dictionary 594 (9th ed. 2009) (defining ejusdem generis). Again, the

arbitration provision here covers disputes over “hours, wages, or conditions of

employment, as covered by this Agreement.” App. vol. 3, at 573. Because hours and

wages relate only to employees, the ejusdem generis canon suggests that the phrase

conditions of employment relates only to employees as well. Thus, the ejusdem generis

canon also suggests that the arbitration provision covers only disputes over employees’

hours, wages, or conditions of employment, not disputes over retired workers’ healthcare

benefits.




                                         - 14 -
   The ordinary-meaning canon further reinforces this interpretation. Under that canon,

if context indicates that words bear a technical legal meaning, they are to be understood

in that sense. Scalia & Garner, supra, at 69, 73. In the labor context, the phrase hours,

wages, or conditions of employment does bear a technical legal meaning; it refers to the

mandatory subjects of collective bargaining under the National Labor Relations Act. See

Allied Chem., 404 U.S. at 163–64. So the parties’ use of the phrase suggests that they

agreed to arbitrate only disputes over mandatory subjects of collective bargaining. See

Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527,

537 (1947) (“[I]f a word is obviously transplanted from another legal source, whether the

common law or other legislation, it brings the old soil with it.”). But the Supreme Court

has held that retiree benefits are not a mandatory subject of collective bargaining. Allied

Chem., 404 U.S. at 176–82. That bolsters the conclusion that the arbitration provision

doesn’t cover disputes over retired workers’ healthcare benefits.

   In brief, Supreme Court precedent and well-established interpretive principles give us

positive assurance that the arbitration provision is not susceptible to an interpretation that

covers this dispute.

    The Company and the Union dedicate many pages to fighting about who may invoke

the Agreement’s arbitration procedure. The Company argues that only employees may do

so. The Union counters by pointing to a previous case between the parties in which the

district court sent a Company-initiated grievance to arbitration. See Pub. Serv. Co. of

Colo. v. IBEW, Local Union No. 111, No. 93-K-2127, slip op. at 1–5 (D. Colo. Dec. 1,

1993).


                                            - 15 -
   For our purposes, however, who may invoke the arbitration procedure is not as

important as what the dispute must be about. As shown above, the universe of arbitrable

grievances under the arbitration provision includes only disputes over employees’ hours,

wages, or conditions of employment. And this dispute simply doesn’t fit within that

universe. Put another way, what takes this dispute outside the arbitration provision is not

necessarily that it’s a retired-worker grievance as opposed to an employee grievance, but

that it’s a dispute over retired workers’ healthcare benefits as opposed to one over

employees’ hours, wages, or conditions of employment.

   The Union resists our conclusion with two arguments. First, it argues that the district

court failed to properly apply the presumption in favor of arbitrability. We disagree. The

district court correctly recited the law when it stated that “[i]n the labor relations context,

a presumption in favor of arbitration applies” and “only the most forceful evidence of a

purpose to exclude the claim from arbitration can prevail.” App. vol. 1, at 157. Further,

the district court’s analysis demonstrates fidelity to that legal framework. As a result, we

can’t agree that the district court failed to apply the law properly.2


   2
     The dissent cites Crown Cork & Seal Co. v. International Association of Machinists,
501 F.3d 912, 919 (8th Cir. 2007), for the proposition that a similar provision has been
interpreted to mean that the parties had agreed to arbitrate disputes over retiree benefits.
However, in Crown Cork & Seal Co., the Eighth Circuit ultimately concluded that the
contract did not even cover the retiree benefits, and thus, they were outside the scope of
the agreement and not subject to arbitration at all. Its discussion of whether the parties
agreed to arbitrate the retiree benefits is consequently mere dictum. Even further, the
court did not supply any justification or rationale for its conclusion that retiree benefits
fell within the scope of the agreement. The dissent also relies on two Seventh Circuit
cases—Printing Specialties & Paper Products Union Local 680 v. Nabisco Brands, Inc.,
833 F.2d 102 (7th Cir. 1987), and Local 232, Allied Industrial Workers v. Briggs &
Stratton Corp, 837 F.2d 782 (7th Cir. 1988). But we fail to see how those cases shed any

                                             - 16 -
   Second, the Union argues that the district court erred because it addressed the

underlying merits of the dispute. Again, we disagree. We recognize that as a general rule,

“in deciding whether the parties have agreed to submit a particular grievance to

arbitration, a court is not to rule on the potential merits of the underlying claims.” AT&T

Techs., 475 U.S. at 649. But the district court noted that rule here, and contrary to the

Union’s argument, we don’t think the district court transgressed it. Recall that the

underlying claim here is for breach of contract; the Union claims that the Company

violated Article 11, § 3 of the Agreement by unilaterally changing retired workers’

healthcare benefits. Had the district court truly addressed the merits, we’d expect to see a

discussion of the Company’s merits-based response—i.e., that the MM Plan gives the

Company the right to “modify, alter, or amend” the MM Plan at any time. Appellees’ Br.

at 4 (citing App. vol. 3, at 640). Yet the district court’s order doesn’t contain any

discussion along those lines, which indicates that the district court did not in fact address

the underlying merits.

   But even assuming the district court did touch on the merits, we still would not have

grounds for reversal. We have held that “where the merits of the claim are bound up with

the question of arbitrability,” “the court’s duty to determine whether the party intended

light on this arbitration agreement because neither one involved a dispute over retired
workers’ benefits. We do not find the cases cited by the dissent persuasive and decline to
follow them here. We think that Allied Chemical, the ejusdem generis canon, and the
ordinary-meaning canon all conspire to suggest that “conditions of employment,” as used
in the Agreement, doesn’t encompass all bargained-for benefits covered by the
Agreement. Rather, “conditions of employment” encompasses only those benefits
enjoyed by employees, not retired workers.



                                           - 17 -
the dispute to be arbitrable trumps its duty to avoid reaching the merits.” Commc’n

Workers v. Avaya, Inc., 693 F.3d 1295, 1300 (10th Cir. 2012). Here, the district court

devoted its entire discussion to answering the arbitrability question, so any incidental

contact with the merits didn’t amount to a foul.


                                    CONCLUSION

   We conclude that the FAA supplies appellate jurisdiction to hear this interlocutory

appeal. We further conclude that the district court correctly denied the Union’s motion to

stay the case and compel arbitration because the Agreement’s arbitration provision is not

susceptible to an interpretation that covers this dispute over retired workers’ healthcare

benefits. We therefore affirm the district court’s order and remand the case to the district

court for further proceedings.




                                           - 18 -
13-1207 – IBEW v. Public Service Co.


HARTZ, Circuit Judge, concurring and dissenting:


       I agree fully with Judge Phillips’s cogent discussion of our appellate jurisdiction.

I must respectfully dissent from the majority, however, on their resolution of the

arbitrability issue. In my view, the presumption of arbitrability has not been overcome.


       As the Supreme Court has instructed, if a collective bargaining agreement (CBA)

contains an arbitration clause, there is a presumption that disputes should be submitted to

arbitration “unless it may be said with positive assurance that the arbitration clause is not

susceptible of an interpretation that covers the asserted dispute.” United Steelworkers v.

Warrior & Gulf Navigation Co., 363 U.S. 574, 582–83 (1960). If the arbitration clause is

broad, the presumption in favor of arbitrability is strong and “only the most forceful

evidence of a purpose to exclude the claim from arbitration can prevail.” AT&T Techs.,

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

omitted).


       The grievance-procedure section in the CBA before us provides for the

“adjustment of alleged grievances relating to hours, wages or conditions of employment

as covered by this Agreement.” Article 21, ¶ 2. The arbitration section provides for

arbitration of any dispute “relating to hours, wages, or conditions of employment, as

covered by this Agreement, which shall not be settled through the grievance procedure.”

Article 22, ¶ 1.
       The majority opinion concludes that this language is not “susceptible to an

interpretation that covers disputes over retired workers’ healthcare benefits.” Op. at 14.

It relies on the Supreme Court’s opinion in Allied Chemical & Alkali Workers of America

v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971), which held that an employer’s

unilateral modification of retired employees’ retirement benefits is not an unfair labor

practice under the National Labor Relations Act (NLRA). The Court said that for

purposes of the mandatory-bargaining provisions of the NLRA, retirees are not

“employees,” see id. at 166–76, and pensioners’ benefits are not “terms and conditions of

employment,” see id. at 177–82. But the Court did not purport to hold that the quoted

words always have those meanings in the context of labor relations. For example, the

Court noted that retired workers are employees within the meaning of the term in another

provision of the NLRA. See id. at 169–70. And much of the opinion is devoted to

discussion of the policies underlying the mandatory-bargaining requirements of the

NLRA, a discussion that would have been unnecessary if the language at issue always

had the same meaning in labor law and CBAs. Of particular importance, the Court made

clear that something that is not a mandatory subject of bargaining may still commonly be

a subject that employers and employees decide to bargain over, see id. at 175–76, 181

n.20; and one can infer that the meaning of “terms and conditions of employment” could

expand with the scope of bargaining.


       In short, although the Allied Chemical opinion is certainly an important

consideration, the context here is rather different from what confronted the Supreme



                                            -2-
Court, and we are interpreting a CBA, not the NLRA. Our task is to determine the

meaning of the term conditions of employment in the CBA.


       The first occurrence of the term is in Article 1, ¶ 3, which provides that the CBA

“shall embody general working rules, hours of work, rates of pay, grievance procedure,

method of arbitration, and other conditions of employment as hereinafter outlined.”

(emphasis added). One could readily infer from this language that any benefit or burden

“outlined” in the CBA is one of the listed items—that is, it is a “condition[] of

employment.” In other words, when the CBA uses the term conditions of employment, it

is including any subject addressed in the CBA. Two CBA provisions are particularly

relevant. Article 11 (entitled “Other Employee Benefits”), ¶ 1 states that “benefits

heretofore enjoyed by employees covered by this Agreement, such as retirement benefits,

. . . shall continue subject to collective bargaining in the future under this Agreement.”

(emphasis added). And Article 11, ¶ 3, states that “Retirees’ and future retirees’ and their

dependents’ health care benefits will be provided according to the terms of the Retirees’

Medical Managed Care/Medicare Coordinated Plan (M/M).” (emphasis added). Because

the CBA addresses retiree benefits, the arbitration provision covering grievances

“relating to . . . conditions of employment,” Article 21, ¶ 2, would appear to apply to

grievances concerning compliance with the CBA requirements for retiree benefits, the

subject matter of the grievance here. In my view, the Supreme Court’s opinion in Allied

Chemicals is not enough in itself to provide “forceful evidence” that the claim here is

excluded from arbitration.



                                            -3-
       I read the limited appellate case law on the matter as supporting my view.

Although ruling on other grounds that a dispute was not arbitrable, the Eighth Circuit

stated in Crown Cork & Seal Co. v. International Ass’n of Machinists & Aerospace

Workers, 501 F.3d 912 (8th Cir. 2007), that a nearly identical arbitration clause

encompassed disputes over retiree health benefits. See id. at 915. Crown had agreed to

provide health benefits for retirees, but it decided to unilaterally modify them. See id. at

913. The union sought to compel arbitration. See id. at 914. The CBA provided for

arbitration of “any difference between the Local Management and the Union or

employees as to the interpretation or application of, or compliance with, the Master

Agreement respecting wages, hours, or conditions of employment.” Id. at 915 (emphasis

added) (brackets and internal quotation marks omitted). The Eighth Circuit agreed with

Crown that “retirees are outside the collective bargaining relationship” under Allied

Chemical. Id. (internal quotation marks omitted). But it also noted that unions can

represent retirees, and it concluded that the language in the arbitration clause showed that

Crown and the union had agreed to arbitrate disputes over retiree health benefits. See id.


       The Seventh Circuit has two contrasting cases that are also instructive. In Printing

Specialties & Paper Products Local 680 v. Nabisco Brands, Inc., 833 F.2d 102 (7th Cir.

1987), the dispute concerned whether the sale of a plant constituted a “job termination”

that entitled some employees to a special early-retirement benefit in the company pension

plan, see id. at 105. The CBA had an arbitration clause with language very similar to the

clause in our case, requiring arbitration for “any grievance or misunderstanding involving



                                            -4-
wages, hours or working conditions, which any employee may desire to discuss and

adjust with the Company.” Id. at 103 (internal quotation marks omitted). The court held

that the dispute did not come within the arbitration clause. See id. at 105.


       In contrast, however, in Local 232, Allied Industrial Workers v. Briggs & Stratton

Co., 837 F.2d 782 (7th Cir. 1988), the court ordered arbitration of the union’s claim that

the company had violated the CBA by making unilateral changes in its retirement plan,

see id. at 783. The arbitration clause was broader than the one in Nabisco, providing that

“all grievances between the two parties shall be deemed arbitrable.” Id. at 785 (internal

quotation marks omitted). But the court did not distinguish Nabisco on that ground.

Rather, the “critical distinction,” wrote the court, “relate[d] to the underlying issue in

dispute in each case.” Id. at 787. In Nabisco the dispute was over the meaning of a term

in the plan, rather than a change in the terms of the plan, so the dispute was unrelated to

the company’s agreement in the CBA to continue the plan. See id. But in Local 232, the

union’s complaint that the company had changed the terms of the plan “focuse[d] on the

one aspect of the retirement plan that [was] specifically addressed in the [CBA]—

maintaining the plan.” Id. The court noted that it had said in Nabisco that if the company

had “failed to fulfill an obligation under the collective bargaining agreement which

abrogated the full force and effect of the Pension Plan, such as failing to fund the Plan

adequately or eliminating the Plan altogether, the result would have been different.” Id.

(internal quotation marks omitted). But even though in Local 232 the company’s

“amendments to the retirement plan are not identical to these examples, yet the changes



                                             -5-
arguably still constitute a failure to maintain the plan,” and “[r]esolution of this issue

[determining whether the company had maintained the plan] is not our task,” but is one

for the arbitrator. Id. at 788. I would conclude from this that the Seventh Circuit would

construe our arbitration clause to encompass the union’s claim.


       In sum, I am persuaded that the arbitration clause before us is susceptible to the

interpretation that it covers this dispute. Given that other circuit courts have said that

they would interpret similar arbitration provisions to encompass similar disputes, I would

apply the presumption in favor of arbitrability and submit this dispute to arbitration.




                                             -6-
