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Kroger Compelled to Arbitrate Labor Dispute

Teamsters Local Union No. 89 v. The Kroger Co., Case No. 09-5534 (C.A. 6, Aug. 25, 2010)

Plaintiff-Appellee Teamsters Local Union No. 89 (“Local 89” or “the Union”) represents employees in a Kentucky warehouse operated by Defendant-Appellant The Kroger Co. (“Kroger”). The parties negotiated a collective bargaining agreement governing labor relations at that warehouse. Local 89 filed two grievances alleging that Kroger violated this agreement by subcontracting out operations to third parties employing non-Local 89 members. Kroger refused to arbitrate these grievances, and Local 89 filed suit to compel arbitration. The district court granted Local 89 summary judgment on its claim to compel arbitration. Kroger appeals that decision. We AFFIRM the judgment of the district court.

I. BACKGROUND

A. The Parties and the Master Agreement

Local 89 is a local affiliate of the Counterclaim Defendant International Brotherhood of Teamsters (“IBT”) and represents warehouse and transportation employees at Kroger’s warehouse facility in Louisville, Kentucky, known as the Kentucky Distribution Center (“the KDC”). Kroger and the Teamsters Kroger National Negotiating Committee, which represented Local 89 and five other local IBT affiliates, negotiated a collective bargaining agreement governing the industrial relations between the unions and Kroger (“the Master Agreement”), which by its terms is in effect from September 11, 2005, through September 10, 2011. Pursuant to the Master Agreement, Kroger and Local 89 also executed a supplemental agreement to govern specific issues at the KDC (“the Local Supplement”), which runs concurrently with the Master Agreement.

The Master Agreement specifically addresses arbitration, subcontracting, andtermination of the contract. Article 8 establishes dispute-resolution procedures, which culminate in binding arbitration. These grievance procedures, including the final step of arbitration, cover “any grievance[,] dispute[,] or complaint over the interpretation or application of the contents of [the Master] Agreement” raised by “any employee.” (District Court Record Entry (“R.E.”) 65-3, at 15.)

Article 25 of the Master Agreement addresses subcontracting. Under Section 25.1, Kroger has the right to subcontract work assigned to the collective bargaining unit but is prohibited from subcontracting such work “for the purpose of circumventing the terms and provisions” of the Master Agreement to an outside company that does not provide similar wages and conditions of employment. Section 25.3, entitled “Continuity of Employment,” provides that if Kroger decides to contract out its entire KDC warehouse or transportation operations, or both, during the term of the agreement, “then a condition of such subcontract shall be offers of employment to eligible employees (as defined in Appendix I), by the new employer, provided that the new employer requires that number or more to perform such services.” (R.E. 65-4 at 4.) Appendix I, which outlines additional job-security provisions, defines “eligible employees” as “all employees who have continuously been on a regular seniority list for at least three (3) years as of December 12, 2005.” (Id. at 12.) This appendix also requires Kroger to offer comparable employment at the nearest similar facility covered by the Master Agreement to any eligible employee “who is permanently laid-off before September 11, 2011, as a direct result of [Kroger] transferring, subcontracting or closing all or part of any distribution center or manufacturing plant operation covered by a Local Supplement to this Agreement.” (Id.) Appendix I explicitly subjects disputes over its interpretation and application to the arbitration provisions in the Master Agreement.
 

 

Judge(s): Cole, McKeague, and Mays
Jurisdiction: U.S. Court of Appeals, Sixth Circuit
Related Categories: Civil Procedure , Employment
 
Circuit Court Judge(s)
Guy Cole, Jr.
Samuel Mays, Jr.
David McKeague

 
Trial Court Judge(s)
Thomas Russell

 
Appellant Lawyer(s) Appellant Law Firm(s)
Daniel Hoying Taft Stettinius & Hollister LLP
John Nalbandian Taft Stettinius & Hollister LLP
Timothy Reilly Taft Stettinius & Hollister LLP

 
Appellee Lawyer(s) Appellee Law Firm(s)
Nathan Eisenberg Previant Goldberg Uelmen Gratz Miller & Brueggeman SC
Frederick Perillo Previant Goldberg Uelmen Gratz Miller & Brueggeman SC

 

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understanding are arbitrable is of questionable relevance. however, although they are not referenced in employment will be governed by the master agreement, and the local that kroger was subcontracting out work previously done by local 89 members to section 36.1, entitled "effective dates," states that the agreement "is effective from arbitration clause in mind, . . . look to the subject matter of the side agreement to "concern[ed] retirement healthcare contribution caps," and while the main collective make certain pension contributions and pay settlements based on specified past grievances; and that type of claim is grist in the mills of the arbitrators." id. at 584. the given the presumption in favor of arbitration, the fact that the agreement is susceptible consequence." id. moreover, on their face, the grievances that local 89 seeks to agreements with transervice and zenith and which, like the master agreement, is set the possibility of kroger contracting out its kdc operations. nowhere in the master specifically providing for arbitration of subsequent grievances in earlier draft grievance procedures, they provide that such grievances will be subjected to an 185. on august 6, 2007, kroger filed counterclaims against local 89 and ibt, provisions of the agreement." j & n, 8 f. app'x at 386. nothing in the master agreement's grievance procedures that limits their applicability grievance[,] dispute[,] or complaint over the interpretation or application of the contents terms and provisions" of the master agreement to an outside company that does not purpose to exclude the claim from arbitration" to prevail. warrior & gulf, 363 u.s. at activities, the union itself has an interest in enforcing the terms of the master agreement local 89's amended complaint, there are similar, subsequently filed grievances in the record alleging that based on this analysis, we conclude that the master agreement's arbitration the scope of the arbitration provision is broad and there is no language in the letter of agreement (but not subsequent grievances) and that local 89 included provisions recognizing arbitration as a substitute for industrial strife and on the belief that main agreement. id. at 279. given that the main agreement contained a broad teamsters, id. at 278-79. our inquiry under the scope test employees who have continuously been on a regular seniority list for at least three no. 09-5534 teamsters local union no. 89 v. the kroger co. page 6 alleged that this violated the same provisions of the master agreement and local at the kdc ("the local supplement"), which runs concurrently with the master termination of the contract. article 8 establishes dispute-resolution procedures, which d. grievances regarding further subcontracting case before us. second, even if fraser's holding were applicable here, it is factually employer requires that number or more to perform such services." (r.e. 65-4, at 4.) related claims from the master agreement's arbitration provision because, once the agreement could exclude subcontracting claims from the grievance procedures or hauling loads out of the [kdc] to different stores in the region." (r.e. 25-1.) local 89 generally, and healthcare coverage of retired employees, [we]re replete" throughout the agreement]" was "exactly the type of dispute where the presumption favoring employment to eligible employees . . . by the new employer, provided that the new , presumption "is not applicable to side agreements that . . . do not contain a separate and the latter cannot be enforced as if they were the former, an issue irrelevant to the consider the similarity of the side agreement's subject matter to the subject matter of the [collective claims to compel arbitration. on august 13, 2009, the district court granted kroger's teamsters local union no. 89, no. 09-5534 teamsters local union no. 89 v. the kroger co. page 16 september 11, 2005 through september 10, 2011 and year to year thereafter," unless one grievancesallegingthatkrogerviolated this agreement by subcontracting out operations affirmative duty on behalf of the employer to stay in business or to treat the collective september 10, 2011. (id. at 11.) section 36.2, entitled "notice to terminate or requirements in order to consider a particular contract to be a side agreement, nor does should a party intend not to arbitrate disputes over a particular side when the employer notified the union that it would be closing the plant where the union because the union specifically had bargained for such benefits and despite the fact that term of the agreement, "then a condition of such subcontract shall be offers of purpose to exclude the claim from arbitration can prevail.'" mead, 21 f.3d at 131 brueggeman, milwaukee, wisconsin, for appellee. brotherhood of teamsters ("ibt") and represents warehouse and transportation based on the foregoing analysis, we affirm the judgment of the district court. local 89 rather than further clarify an ongoing collective bargaining relationship determines to terminate either of its agreements with transervice or operations to zenith, and zenith hired allof kroger's kdc warehouse employees. since parties. . . . such retransfer or resubcontracting shall not take place to labor-arbitration awards." mich. family res., inc. v. serv. employees int'l union local 517m, 475 f.3d 2002)). no. 09-5534 teamsters local union no. 89 v. the kroger co. page 10 kroger also argues that disputes over the letter of understanding are not agreement and reassume such operations as the employer, kroger agrees 306, 311 (6th cir. 2000)). in this context, "[w]e must determine whether the dispute is we note that the two grievances that local 89 seeks to compel to be arbitrated in its amended was strictly a management function and therefore not subject to arbitration. id. at 584. grievance[,] dispute[,] or complaint over the interpretation or application of the contents recommended for full-text publication miller & brueggeman, milwaukee, wisconsin, for appellee. on brief: arbitrator." int'l ass'n of bridge, structural, and ornamental iron workers, local uncertainty because parties have no gauge as to when a side agreement is similar or dissimilar to the a condition of such subcontract shall be offers of employment to eligible employees (as bargaining agreement governing labor relations at that warehouse. local 89 filed two first, given the presumption in favor of arbitrability, the fact that the letter of agreements, they can provide for such within the language of the master agreement's arbitration clause is susceptible to an interpretation whereby it arbitrate allege violations of the masteragreement and local supplement, not the letter grievance alleges that kroger is violating these provisions "by subcontracting work to grievance was arbitrable. id. at 584-85; see also id. at 583 (holding that "[d]oubts" about finally, in regards to future changes to kroger's kdc subcontracting offer comparable employment at the nearest similar facility covered by the master subject to arbitration because when kroger subcontracted out all of its kdc operations no. 07-00351--thomas b. russell, chief district judge. the honorable samuel h. mays, jr., united states district judge for the western district of of understanding can just as easily support the implication that both parties understood conclude that kroger has failed to rebut the presumption in favor of arbitrability and the subcontracting or transfer of all or any portion of the work subject to this 4.) kroger responded in a letter dated may 14, 2007, refusing to process the grievance. because resolution of the issue involves examining and interpreting the termination understanding is evidence that the master agreement's grievance procedures have workers v. isp chems., inc., 261 f. app'x 841, 846 (6th cir. 2008) (finding a clause no. 09-5534 teamsters local union no. 89 v. the kroger co. page 2 in october 2006, kroger announced that it would subcontract out its kdc 2011, as a direct result of [kroger] transferring, subcontracting or closing all or part of no. 09-5534 teamsters local union no. 89 v. the kroger co. page 4 - hollister llp, cincinnati, ohio, for appellant. frederick perillo, nathan d. september 11, 2005, through september 10, 2011. pursuant to the master agreement, on july 6, 2007, after only the first grievance and response had been sent, local 89" or "the union") represents employees in a kentucky warehouse operated by of these arguments to be persuasive and conclude that kroger has failed to overcome the business and a termination of operations." id. 3 subcontracting policies at the kdc. in regards to grievances, local 89 agreed to main collective bargaining agreement. cooper, 474 f.3d at 279. under this test, "unless contract termination or modification requirements set forth in the master agreement. the unions and kroger ("the master agreement"), which by its terms is in effect from bargaining agreement. on may 9, 2007, local 89 filed a formal class-action grievance arbitrability, this court concluded that the side agreement "clearly falls within [the understanding excluding any types of grievances from arbitration. likewise, there is agreement, the local supplement, or the letter of understanding does it state that iii. conclusion arbitration, but because there were no such exclusions, and the employer made no favor of arbitration, and should not deny an order to arbitrate "unless it arbitration provision.2 defendant-appellant the kroger co. ("kroger"). the parties negotiated a collective magic chef-food giant markets, inc., 324 f.2d 853 (6th cir. 1963). in that case, the agreements. further, kroger argues that the letter of understanding is not a "side letter" no. 09-5534 teamsters local union no. 89 v. the kroger co. page 9 broad); mead, 21 f.3d at 132 (finding a clause providing for arbitration of "grievances 1 for the sixth circuit - no. 09-5534 teamsters local union no. 89 v. the kroger co. page 17 negotiated a collective bargaining agreement governing the industrial relations between grievances. finally, the parties agreed that "kroger will meet with teamsters local 89 for arbitration of "any dispute . . . as to the interpretation or application of this bargaining agreements with transervice and zenith. court, should decide whether an arbitration agreement has expired or terminated is grievances is not strong enough evidence to rebut the presumption of arbitrability. clause at issue specifically excluded "matters which are strictly a function of transportation operations to transervice, and transervice hired all of kroger's kdc operations that were transferred." (id. at 1.) local 89, but granted ibt summary judgment. complaint do not allege violations of the letter of understanding; they allege violations of the master arbitration clause." cooper, 474 f.3d at 278 n.8. this court found that a dispute that warehouse and transportation operations. kroger contracted with transervice logistics local 89 summary judgment on its claim to compel arbitration. kroger appeals that claims against their employer. here, in contrast, our role is to determine whether the further, the fact that it addresses kroger's ongoing duties and obligations under the 1291. retirees had other remedies available). master agreement grievance procedures. kroger also argues that the letter of no. 09-5534 teamsters local union no. 89 v. the kroger co. page 3 the parties indicate otherwise, disputes over a side agreement are arbitrable if the subject if between the date of this agreement and september 10, 2011, kroger "focuses on the breadth of the arbitration clause, thereby permitting parties to reference subsequentgrievanceswouldbesubject to the master agreement's arbitrationprovision, "any disagreement concerning the interpretation or application of this agreement" to be a comparison to the facts of warrior & gulf, one of the steelworkers trilogy master agreement is evidence to the contrary. - warehouse or transportation operations, or both, during the term of the agreement, "then (3) years as of december 12, 2005." (id. at 12.) this appendix also requires kroger to of understanding. thus, kroger can prevail in its attempt to exclude these grievances arbitration provision. 25.3, if kroger subcontracts all of its warehouse or transportation operations during the court should apply a presumption of arbitrability, resolve any doubts in agreement further demonstrates the untenability of kroger's position. under section grievances arising from the agreement will be subject to the master agreement's supplement. kroger again responded by letter, dated august 27, 2007, refusing to defined in appendix i), by the new employer, provided that the new employer requires 9 u.s.c. 1 et seq., and section 301 of the labor management relations act, 29 u.s.c. employer and the union were one year into a three-year collective bargaining agreement practice of providing retiree health care for already retired former employees from the id. at 855 (internal quotation marks omitted). the covered employees filed suit to obtain a. standard of review claim; and (4) where the agreement contains an arbitration clause, the kroger because kroger subcontracted out its kdc operations. to hold that these agreement'sarbitrationclause,andthereforecompelled arbitration of local 89's claims. issues excepted, to be broad); cooper, 474 f.3d at 279 (finding a provision providing pinnacle eye care, inc., 537 f.3d 559, 561 (6th cir. 2008). a. the parties and the master agreement bargaining agreement creates a duty for the parties to arbitrate a damages based on kroger's alleged breach of contract. no. 09-5534 teamsters local union no. 89 v. the kroger co. page 13 2007). "similarly, we review de novo the district court's decision to compel arbitration cases,1 decided and filed: august 25, 2010 11, 2011. bargaining process." id.; see also cleveland, 440 f.3d at 815-16. united states court of appeals is instructive. in that case, the employer refused to arbitrate a grievance filed by violation by kroger of the master agreement or local supplement." (id.) on august 24, to arbitrate does not automatically cease upon termination of the collective bargaining court concluded that the letter of understanding fell within the scope of the master in cooper, this court adopted the "scope test," also applied by interpretation that covers the asserted dispute'"). similarly, the fact that earlier proposed no. 09-5534 cole, circuit judge. plaintiff-appellee teamsters local union no. 89 ("local following kroger's october 2006 announcement, local 89 entered into bargaining agreement as an employment contract because "[r]ights of employees under kroger first argues that the letter of understanding does not qualify as a "side presumption in favor of arbitrability. grievances, and local 89 filed suit to compel arbitration. the district court granted 1 the arbitration clause, there is no question that grievances concerning subcontracting fall understanding was not negotiated simultaneously with the master agreement and was cooper, 474 f.3d at 280 ("[t]he supreme court has recognized that a party's obligation it may be said with positive assurance that the arbitration clause is not susceptible of an union no. 44 v. j & n steel & erection co., 8 f. app'x 381, 386 (6th cir. 2001); cf. determine if it falls within the clause's intended coverage." id. at 279. as noted above, of employment," provides that if kroger decides to contract out its entire kdc the specific dispute falls within the substantive scope of the agreement." landis v. no. 09-5534 teamsters local union no. 89 v. the kroger co. page 8 bargaining agreement's] arbitration clause from applying to side relationship or a grievance procedure. local 89 does not represent any kroger provisions included in article 25 of the master agreement. also, kroger agreed to kroger and local 89 also executed a supplemental agreement to govern specific issues the side agreement is `integral' to the [collective bargaining agreement], courts permit arbitration of b. arbitrability of dispute zenith and to retransfer or subcontract the work then being performed in, of the parties--through its designated negotiating committee--notifies the other party in february 2007, the arbitration provision "ceased to apply." (see, e.g., kroger br. 22.) before: cole and mckeague, circuit judges; mays, district judge.* the master agreement specifically addresses arbitration, subcontracting, and charging that the company has violated this agreement and involving the interpretation "in 1960, the supreme court issued three decisions designed to end the federal courts' hostility whether a grievance is covered by an arbitration clause "should be resolved in favor of local 89 is a local affiliate of the counterclaim defendant international withdraw several outstanding grievances, including ones it had filed alleging that provided under the master agreement. kroger also "agree[d] to continue the current kroger has violated the letter of understanding. further, local 89 argues in its brief that its grievances (and the consequent fact that kroger no longer directly employs local 89 members) nor motion for entry of partial judgment under rule 54(b), permitting kroger to appeal the "in order to maintain the integrity of the bargaining process." cooper, 474 f.3d at 281; c. the letter of understanding eligible dependants) who retire before september 10, 2011, comparable to the coverage dispute turns not on whether the parties ever agreed to arbitrate, but rather whether an agreement. moreover, if the parties wish to restrict the [collective file name: 10a0263p.06 local 89's subcontracting grievances from arbitration under the master agreement. we cf. cleveland, 440 f.3d at 816 (finding dispute over retiree benefits was arbitrable - b. kroger subcontracts to transervice and zenith "involve[d] whether [the main collective bargaining agreement that contained an the master agreement when, by its terms, the arbitration provision covers "any 89 supplement covering such employees. between the two parties. but the letter of understanding nowhere states that the master absent the assumption of the terms of this letter of understanding by companies other than transervice and zenith, who were not subject to a collective kroger also argues that the parties' execution of the letter of understanding the supreme court disagreed, stating that "[c]ontracting out work is the basis of many propositionthatemploymentcontractsaredistinctfromcollectivebargainingagreements clearly and unmistakably provide otherwise, whether a collective agreement bargaining unit. the terms and conditions of their kroger presents a series of arguments claiming that local 89's grievances are not will require that all terms of this letter of understanding and the job 128 (6th cir. 1994), this court noted the well-established principles for determining applying the scope test in cooper, this court noted that the side agreement third party drivers while bargaining unit drivers and mechanics are available." (r.e. 1- dispute, we begin with the presumption that national labor policy favors arbitration." 2007, local 89 filed a second class-action grievance, stating that the it had learned that agreement." (internal quotation marks omitted)). "the reason an arbitrator, not the employees of kroger. in making this argument, kroger relies chiefly upon fraser v. excluding a particular grievance from arbitration or `the most forceful evidence of a the arbitration clause included in the master agreement is broad, and therefore the merger of their employer with another company, not because their employer went to file a grievance. this court has no authority to write such a sweeping exception into understanding"), which was to go into effect only if local 89 entered into ratified labor facility" covered by the master agreement to any employee "permanently laid-off" subcontracted-out employees were off kroger's payroll, there would be no one eligible 2. effect of subcontracting to transervice and zenith to directly employ all bargaining unit members then performing the - for entry of partial judgment under federal rule of civil procedure 54(b) on local 89's > and application to the arbitration provisions in the master agreement. of this agreement" raised by "any employee." (r.e. 65-3, at 15.) this court has eisenberg, previant, goldberg, uelman, gratz, miller & appeal from the united states district court security provisions of the [transervice and zenith labor agreements] . . . kroger argues that the district court erred in compelling arbitration of local 89's obligated itself by contract to submit to arbitration; (2) unless the parties to other companies. see heheman v. e.w. scripps co., 661 f.2d 1115, 1123 (6th cir. of its desire to terminate or modify the agreement in writing at least 120 days before not apply because all of the class members of the lawsuit were non-union member cross-motions for summary judgment were filed on all of the claims. the district industrial strife and that arbitrators have special expertise regarding labor disputes--did presumption in favor of arbitrability. see int'l ass'n of machinists and aerospace article 25 of the master agreement addresses subcontracting. under section can ensure that potential side-agreement disputes do not become subject to arbitration: agreement to arbitrate has expired or has been terminated, it fails because "where the that date, kroger has not directly employed any members of local 89. to local 89's grievances. thus, kroger must present "the most forceful evidence of a provision is broad, and the presumption in favor of arbitrability is particularly applicable the letter of the agreement fall outside of the scope of the master agreement's ohio,forappellant. frederick perillo, previant,goldberg,uelman,gratz, transervice and zenith. as for kroger's secondary-boycott counterclaims, the court process the grievance and stating that "the matters complained about in the august 24, n navigation co., 363 u.s. 574, 585 (1960). arbitrators, more so than the courts, possess the proper experience and expertise to included in a side agreement attached as an addendum to the local supplement that agreement to arbitrate has expired or terminated, the question of termination is for the local 89 to be resolved. we have jurisdiction over kroger's appeal under 28 u.s.c. in united steelworkers of america v. mead corp., fine paper division, 21 f.3d provisions provide protections to former kroger employees who lost their positions at agreement. agreement, the provision of retiree health benefits, and future changes to kroger's modify," requires that if either party wishes to terminate or modify the local culminate in binding arbitration. these grievance procedures, including the final step argued: timothy p. reilly, taft stettinius & hollister llp, cincinnati, because kroger subcontracted out all or part of its kdc operations. (id. at 12.) these under the "collateral test," employed by the second, fourth, and eighth circuits, "courts of a particular dispute." id. (citing floss v. ryan's family steak houses, inc., 211 f.3d this burden. outside the scope of the master agreement's arbitration provision. we do not find any unfortunately for kroger, fraser does not apply here. first, fraser did not moreover, an examination of the job-security provisions included in the master * agreement" to be broad); cleveland elec. illuminating co. v. util. workers union of never appended to the master agreement. however, cooper imposes no such within its scope. employment contract. therefore,fraseraddressedthemeritsoftheemployees' contract is deemed collateral to the collective bargaining agreement, and therefore not arbitrable. "however, where plaintiff-appellee, - to the extent that kroger's argument is coterminous with an argument that the parties' 89 members terminated in february 2007 when it subcontracted its operations to may be said with positive assurance that the arbitration clause is not in sum, we find that neither kroger's subcontracting to transervice and zenith [collective bargaining agreement]. _________________ resolve labor disputes." id. at 278 (citation and internal quotation marks omitted). 158(b)(4)(ii)(b). on september 20, 2007, local 89 filed an amended complaint demonstrates their intent to exclude any subsequent grievances from the master subsequently, local 89 and kroger entered into an agreement ("the letter of agreement or local supplement." (r.e. 25-2.) members worked within two months "because of its inability to obtain adequate profits." to this agreement." (id.) appendix i explicitly subjects disputes over its interpretation maintenance work previously done by union employees. id. at 575. the arbitration - transervice and zenith to provide retiree health coverage to employees (and their 585. based on the following analysis, we further conclude that kroger has failed to meet notably, the arbitration provisions in these proposed agreements do not just provide that any distribution center or manufacturing plant operation covered by a local supplement addressed specifically in article 25 of the master agreement. given the broadness of cooper, 474 f.3d at 277. "the presumption favoring arbitration is based on a policy 2007 grievance are not subject to the grievance and arbitration provisions of the master the kroger co., providing for arbitration of "any difference of opinion or dispute . . . regarding disputes over its provisions." id. in declining to adopt the collateral test, this court stated that it "creates 1981) (distinguishing fraser because the employees' terminations were precipitated by agreement and local supplement. thus, the question of whether disputes arising under the letter of arbitration decision without waiting for the secondary-boycott counterclaim against arbitration clause] creates a duty for the parties to arbitrate their dispute over the [side the third, seventh, and ninth circuits, to determine whether a dispute over a side supplement, that party must give the other party notice ninety days prior to september that "[e]mployees' rights under such a contract do not survive a discontinuance of matter of the side agreement is within the scope of the [collective bargaining this court reviews de novo the district court's grant of summary judgment. "moreover, in cases involving broad arbitration clauses the [supreme] court has found coverage"). the duration of the contract. id. this court refused to read into the contract an at or from the [kdc] including without limitation all inside or driving v. alleging that kroger violated article 25 of the master agreement and a provision - this determination, a court is not to consider the merits of the underlying that even though none of the class members were current employees, "the union still has no. 09-5534 teamsters local union no. 89 v. the kroger co. page 11 undergirding the presumption in favor of arbitration--that arbitration is a substitute for a collective bargaining agreement presuppose an employer-employee relationship" that opinion addresses which drivers are given priority when extra deliveries are needed. the particular grievance is an issue for judicial determination; (3) in making interpreted similar provisions as "broad" arbitration clauses particularly subject to the transfer of operations to transervice, kroger claimed that they "cannot constitute a but that they ultimately agreed not to subject such grievances to expedited arbitration. out of business). further, the collective bargaining agreement in fraser did not address agreement." kroger notes that, unlike that side agreement in cooper, the letter of transervice and zenith and, therefore, those employees are not eligible to invoke the to side agreements. further, the letter of understanding deals almost exclusively with _________________ arbitrability is to be applied; the fact that the grievance is over a side letter is of little transportation employees. on february 22, 2007, kroger transferred the warehouse work to any third party different from transervice or zenith, then kroger for the western district of kentucky at louisville. (quoting at&t, 475 u.s. at 650). there was no particular local 89 member eligible to grieve kroger's subcontracting 3. effect of letter of understanding rather that no local 89 members can invoke its provisions because they are no longer negotiations with transervice, zenith, and kroger, respectively. in april 2007, local of understanding. the cooper employer also argued that the policy reasons bargaining agreement did not address this narrow issue, "references to medical benefits no. 09-5534 teamsters local union no. 89 v. the kroger co. page 5 agreement's] arbitration clause."3 arbitrable, meaning that a valid agreement to arbitrate exists between the parties and that application of the contents of [the master] agreement" raised by "any employee." employees are ineligible to grieve complaints about kroger subcontracting out its kdc agreement to any eligible employee "who is permanently laid-off before september 11, no. 09-5534 teamsters local union no. 89 v. the kroger co. page 15 (id. at 1-2.) 2 reassumed work. such employees shall be covered by the kroger master agreement without an arbitration clause is subject to an arbitration clause included in the of, or compliance with, this agreement" to be broad). moreover, there are no issues arrangements, the letter of understanding states: such third parties. if at any time kroger should decide to discontinue the process." (r.e. 65-12, at 2.) the letter of understanding does not address future applicable here because the local 89 members are no longer kroger employees. neither - showing that contracting out fit within the management-function exception, the ("zenith") for warehouse operations. on february 15, 2007, kroger transferred the kroger next argues that, even if the letter of understanding is a side agreement, district court correctly compelled arbitration. susceptible of an interpretation that covers the asserted dispute." id. at 131 (quoting at&t techs., inc. v. commc'ns workers of am., 475 u.s. 643, 650 the union after union members were laid off because the employer began contracting out an arbitration provision and (2) the policy reasons underlying the presumption are not id. ii. analysis kroger provide any other authority for such a rule. more generally, kroger argues that to a reading that provides for arbitration controls. kroger breached the letter of understanding by hiring subcontractors other than we apply a strong presumption of arbitrability in evaluating local 89's grievances. decision. we affirm the judgment of the district court. 1. scope of arbitration clause and presumption of arbitrability grievances explicitly. no. 09-5534 teamsters local union no. 89 v. the kroger co. page 7 expedited arbitration process. therefore, the absence of such a provision in the letter underlying [collective bargaining agreement]." id. at 280. regarding retiree health benefits, kroger agreed to require any successors to "kroger was subcontracting bid runs and wheel runs to a[n] outside carrier that [is] head the plethora of case law interpreting arbitration clauses . . . . simply put, `the general grievances arising out of the letter of understanding, they concern subcontracting, current kroger employees. we similarly are unpersuaded by this set of arguments. shall be a condition of the retransfer or resubcontracting to any third understanding addresses the arbitrability of outstanding grievances but is silent as to kroger or permit the grievance to proceed through the kroger master grievance (1986)). elsewhere, this court has stated that, "[i]n deciding the arbitrability of a united steelworkers of am. v. cooper tire & rubber co., 474 f.3d 271, 277 (6th cir. alleging breach of contract and violation of the secondary boycott law, 29 u.s.c. subsequent grievances should not be read as excluding such grievances from the at 750-51. tennessee, sitting by designation. - the parties' execution of the letter of understanding demonstrates an intent to exclude agreements drafted by local 89 specifically provided for arbitration of subsequent arbitration clause and neither it nor the side agreement contained any exceptions from counterclaim defendant. grievances because the employer-employee relationship between kroger and the local defendant-appellant, counsel the wages that they would have received had the plant continued to operate throughout of [the master] agreement." (r.e. 65-3, at 15.) finally, even if we were to find that and either resolve any outstanding grievances resulting from their employment with court also noted that a specific collective bargaining agreement or a written collateral agreement or its grievance procedures no longer apply, nor does it comply with the inlandboatmens union of the pac. v. dutra group, 279 f.3d 1075, 1081 (9th cir. i. background agreement's arbitration provisions. kroger notes that the letter of understanding specifically provides for arbitration of outstanding grievances under the master kroger's subcontracting to transervice and zenith violated the subcontracting bargaining agreement, while kroger simply subcontracted out its operations at the kdc outside of the scope of the arbitration provision because they have not been brought by found that kroger had put forth sufficient evidence to survive summary judgment as to to expire on september 10, 2011. local 89 subsequently entered into separate collective that the master agreement (or the arbitration provision) has expired or terminated, but _________________ under appendix i, kroger is required to offer a "comparable job at the nearest like issues falling within the scope of the master agreement. to the extent that local 89 has cessation of operations at the plant, while the master agreement specifically addresses following the district court's summary-judgment order, kroger filed a motion invoke the letter of understanding, in addition to the master agreement and local supplement. would cover local 89's grievances. fraser is best understood as standing for the operations because they are no longer employed by kroger requires a circular logic. kroger's subcontracting out of its kdc operations limits the applicability of the distinguishable. the employer infraser closed the entire plant covered by the collective the claim[s] from arbitration." united steelworkers of am. v. warrior & gulf but is prohibited from subcontracting such work "for the purpose of circumventing the bargaining agreement]." cooper, 474 f.3d at 278. if the subject matter is dissimilar, the side agreement an interest in resorting to economic weapons in order to maintain the integrity of the _________________ involve arbitration. the former employees in fraser did not sue to compel arbitration, kentucky distribution center ("the kdc"). kroger and the teamsters kroger national no. 09-5534 teamsters local union no. 89 v. the kroger co. page 12 finally, article 36 of the master agreement addresses contract termination. the presumption of arbitrability `particularly applicable,' and only an express provision the letter of understanding addresses outstanding grievances under the master of arbitration, cover "any grievance[,] dispute[,] or complaint over the interpretation or further, such a holding essentially would create a blanket exception of subcontracting- timothy p. reilly, john b. nalbandian, daniel j. hoying, taft stettinius & would govern any other disagreement between the parties.'" id. at 280 (quoting no. 09-5534 teamsters local union no. 89 v. the kroger co. page 14 am., 440 f.3d 809, 814-15 (6th cir. 2006) (finding a clause providing for arbitration of (district court record entry ("r.e.") 65-3, at 15.) employees." (r.e. 1-5.) further, because the alleged violations took place after the seeking to compel arbitration of both grievances or, in the alternative, award local 89 outlines additional job-security provisions, defines "eligible employees" as "all 89's negotiations regarding new collective bargaining agreements with transervice and accordingly, the district court declined to analyze local 89's alternative argument that of these arguments is persuasive. in cooper, this court rejected the argument that the international brotherhood of 746, 750 (6th cir. 2007) (en banc). these cases later became known as the steelworkers trilogy. see id. to third parties employing non-local 89 members. kroger refused to arbitrate these agreement, language to that effect may be included within the side zenith broke down, and local 89 struck transervice and zenith on april 18 and 19. retirees and survivors. id. at 281. this court rejected this argument as well, concluding arbitration provisions. to hold otherwise would be to reverse the presumption. see arbitrable because it is not a side agreement and, even if it were, disputes arising under argued: august 3, 2010 25.1, kroger has the right to subcontract work assigned to the collective bargaining unit excepted from the arbitration provision in the master agreement, the local supplement, e. procedural history from arbitration only by presenting "the most forceful evidence of a purpose to exclude management." id. at 576. the employer argued that its decision to contract out work ceased to apply and that any grievances arising under the letter of understanding fall - however, kroger attempts to distinguish its position, stating that it is not arguing that number or more to perform such services." (r.e. 65-4 at 4.) appendix i, which no. 09-5534 teamsters local union no. 89 v. the kroger co. page 18 pursuant to sixth circuit rule 206 section 8.1 applies the grievance procedures, including arbitration if necessary, to "any or "side agreement" under cooper and that, even if it is, local 89's grievances fall (1) a party cannot be forced to arbitrate any dispute that it has not provide similar wages and conditions ofemployment. section 25.3, entitled "continuity the letter of understanding was negotiated to wrap up the relationship between it and employees at kroger's warehouse facility in louisville, kentucky, known as the disputes concerning it do not qualify for arbitration under the scope test. under that test, or the letter of understanding. further, the grievances concern an inc. ("transervice") for transportation operations and with zenith logistics inc. mead, 21 f.3d at 131 (holding that courts "should not deny an order to arbitrate `unless interpretation or application of any provision of this agreement," but with three specific x the letter stated that, "kroger and local 89 no longer have a collective bargaining whether a grievance is subject to compulsory arbitration: negotiating committee, which represented local 89 and five other local ibt affiliates, sometime after the letter of understanding was executed, local 89 discovered kroger briefly argues that the presumption in favor ofarbitrability does not apply they sued to collect contract damages as if the collective bargaining agreement was an 89 filed a complaint in district court to compel arbitration under the u.s. arbitration act, a collective bargaining agreement does not create. id. at 856. further, this court stated because (1) only the master agreement, and not the letter of understanding, contains we first must look to the arbitration provision, and then "[w]ith the scope of the arbitration clause's] scope." id. at 280. the cooper opinion also set forth how parties issue--subcontracting--specifically addressed in the master agreement and the letter arbitration clause will apply to a dispute over a side agreement to the same extent it


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