O-N Minerals Co. v. National Brotherhood of Boile, et al

Filing

OPINION filed: AFFIRMED; decision not for publication. Karen Nelson Moore, Circuit Judge (DISSENTING); Richard Allen Griffin, Circuit Judge and Edward R. Korman (AUTHORING), U.S. District Judge for the Eastern District of New York, sitting by designation.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0289n.06
No. 12-1633
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

O-N MINERALS CO., dba Carmeuse Lime & Stone,
Calcite Plant,
Plaintiff-Appellee,
v.
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.

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FILED
Apr 18, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN

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.

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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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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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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 BoilermakersBlacksmith 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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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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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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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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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. 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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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 BoilermakersBlacksmith 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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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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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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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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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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Case: 12-1633

Document: 48-2

Filed: 04/18/2014

Page: 17

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