Court Declines to Order Arbitration of Labor Dispute

reference to the erisa benefits plan in describing the -41- appeal. we have jurisdiction pursuant to 28 u.s.c. � 1291.2 is to be decided by the court, not the arbitrator." at&t techs., cba. visitation rights as prescribed under the [cba]." mr. hansen jonathan b. sprague right of store access is, at the least, "not so plainly unreasonable the employer has violated the collective bargaining agreement merits of every grievance and, upon determining that the diagnostic, 819 f.2d at 95. we must determine whether indeed -22- light of the district court's and the majority's conclusion that "the most forceful evidence of a purpose to exclude the claim similarly here, the entire context of section 15.3 makes newly-acquired stores. the union's grievances as to store even before litton. see e.m. diagnostic, 812 f.2d at 95; united led to continued reliance on arbitration . . . as the preferred managerial employees in rite aid's eastern pennsylvania stores. agreement or its construction, the supreme court in litton new stores. thus, according to the union, the right of access is through the bristol cba grievance procedure must still arise addressing new stores--i.e., a provision recognizing rite aid's as the employee's bargaining agent] or other procedures may be be sure of this, we considered the union's arguments that certain collective bargaining agreement, the eighth circuit held that the provision), it nonetheless relies on the ambiguity in the cba indicates that the parties have agreed to arbitrate only the litton court acknowledged that, in determining that regardless of the merits of the union's position that this impermissibly into the merits of the underlying grievances, and support either of these conclusions. provision should be interpreted as authorizing it to enter newly not involve the interpretation of any provision of this context of an arbitration provision that applies only to work in excess of 35 hours a week "is so clear on the face of the the district court concluded that they had not, and we will election." retail clerks int'l ass'n local no. 455 v. nlrb, 510 of the cba's arbitration provision, i conclude that we are employment and working conditions." 522 f.3d at 328 (first and defines the range of matters subject to bargaining. it does haas is the watershed decision my colleagues apparently union) merits decisions as evidence of the dispute's some showing of majority support as a prerequisite for such shipping co. v. exxon seamen's union, 11 f.3d 1189, 1196 (3d because the recognition provision sufficiently18 forms, inc., 579 f.3d 285, 286 (3d cir. 2009). for the middle district of pennsylvania circuit court reasoned that three questions--"whether the the union's grievances. the majority concludes that (1) litton in 2007, rite aid acquired a chain of drugstores formerly the parties agree that the arbitration provisions in the cba at (emphasis added). this being so, it is obvious that the merits "cit[ing] to a particular provision of the cba," claiming that its less than its apparent scope."); accord lukens steel co. v. provisions resulting from the kroger decisions--determined that stores to solicit membership. see 2005 aaa lexis 383, at this effect from the bargaining history. at&t techs., 475 u.s. arbitrator's decision. a court has no warrant to determine the "negated expressly or by clear implication," and held that, in "the subject matter of the grievance is one that is within the zone states that "[n]o grievance shall be filed by . . . the union, nor no. 97-977-jo, slip op. at 14�15. and in both the therefore applies in this case. not employ members of the union. 812 f.2d at 92. because the observation, and privileges provisions are "susceptible of [the] article 11 of the cba creates a procedure under which the majority dismisses the relevance of the kroger13 grievance--the subject matter of which is wholly outside the which will support the [union's] claim." am. mfg. co., 363 [under the collective bargaining agreement].'" dissent at n.18 rite aid argued that the grievances were not arbitrable in "decisions on the merits, whether easy or difficult, must underlying our decision in e.m. diagnostic is the crucial majority essentially concludes that the merits question of to review, united food and commercial workers contained an arbitration provision that, unlike the rite aid where an arbitration clause in a collective bargaining 812 f.2d 91, 95 (3d cir. 1987); accord united steelworkers of the part of the supreme court to jettison those principles in all to persuade it to become entangled in the construction of the itself. arbitrability "wholesale" in this context, id., the court seems to the majority dismisses that position as "unpersuasive," maj. op. lexis 383 (2005) (shaw, arb.), as well as a decision by the14 disability benefits under the erisa plan, and did not, as the where the merits and arbitrability questions are inextricably nicholas farina filed three identical grievances with niels agreements are well established. we have often recognized the intertwined, a court's arbitrability decision may, of necessity, rohm & haas is a recent opinion of this court. as my7 bargaining agreement was broad). "in such cases, `[i]n the rite aid and the union are parties to three separate collective subjects--i.e., "[s]uch questions arising under [the] agreement the parties agreed to arbitrate this dispute, and we shall not prevent the union officials from entering under the erisa plan. in so doing, however, we did not fed. r. app. p. 28(j), ppg indus. v. int'l chemical workers the union argues that this contextual analysis intrudes constitutes "forceful evidence," particularly in light of the plan was subject to the cba's arbitration provisions; the opposing arbitration) produces "the most forceful evidence" to "inconsistent with the [collective bargaining] agreement's where the employer has waived its right to an election simply agreement between rite aid and the union. consider the merits of whether the employees were entitled to within the zone of interests that have received consideration of the merits based on the language of the parties' -3- file--and, if rejected by rite aid, refer to arbitration--to those into territory reserved for the arbitrator. however, our recent what it literally says--i.e., it purports to make the union circumstances in which the employer is required to pay overtime arbitrability and concluded that the grievance was arbitrable, 2 f.3d 233 (7th cir. 1993), another case limiting arbitration to agreement because one provision of the agreement made agreement that requires the employer to pay employees overtime collective bargaining agreement. in light of the arbitration claimed contract violation comes within the scope be anomalous if rite aid could avoid the apparent intent of the majority's conclusion only makes sense in light of kroger ii; the "zone of interests" protected by the collective bargaining collective-bargaining agreement." at&t techs., inc. v. creature of contract and a court cannot call for arbitration of argument. the cba cannot apply to the newly-acquired stores why "we should not be bound by this very recent binding am. v. warrior & gulf nav. co., 363 u.s. 574, 585 (1960)). arbitrate their dispute, then they have bargained for the in the cba. because rite aid has waived its right to require strong federal policy in favor of resolving labor disputes through point. in rohm and haas, it was obvious that the subject matter the grievances and the question of arbitrability were provide otherwise, the courts, not the arbitrators, are tasked with precedential and a court must limit itself to addressing the latter, regardless confined to a single footnote. we are content to rely upon union's claims. because i do not believe that analysis is agreement to determine whether, as the union argued, (3d cir. 2006). in making that determination, a court is not to employment, and other conditions pertaining to judgment, we apply the same test district courts are to apply presented with the threshold issue of whether the individuals wages for work in excess of 35 hours a week. imagine further or privileges provisions. i conclude, however, that (1) at least right of store access falls within the "zone of interests" that have (1991), the union representing litton's employees sought to -28- acquisitions within" the counties covered bythe cba. because not necessarily follow that disputes over the timing of the recall -37- justifyour analysis. accordingly, i cannot agree that rohm and brotherhood of teamsters, local union no. 430, 55 f.3d 138, specify the means of establishing majority support in cases the employees were authorized to bring grievances under the involving the interpretation of a term in a bonus plan that had but litton is not so easily distinguished. because the agreement "any differences arising with respect to the interpretation of this such a conclusion follows under the steelworkers president farina, in which he averred that: (1) prior to the represent those stores' employees. (this is, of course, the very district court that it is not possible for the union to ensure merits on the theory that they are enforcing a clause limiting provisions.8 force would have required arbitration (in light of the collective company's explicit right to subcontract to conclude that the an expired bargaining agreement, for to do so from some specific article of the bristol cba."). we may not distribute christmas turkeys to its employees, boeing co., 349 litton to mean that "the judicial responsibility to determine financial printing division v. national labor relations board, in stores operating in the state of texas"). hence, the the majority's reliance on litton is ironic, given the21 argument simply constitute an attack on the correctness of the the gkn aerospace and hyster courts were thus benefits on their face simply are not "working conditions." to the majority concludes that the union's grievances are whether its subject matter falls within "the zone of interests that to require more, we believe, would infringe upon required to look to seniority." id. at 210. the court reasoned: agreement (the "cba") between ride aid and local 1776.9 refusal to pay overtime wages for work in excess of 30 hours a federal district court for the middle district of pennsylvania the expired agreement. id. at 253, 255. the litton court fourth circuit reversed, writing that "[t]he company's -19- the union argues that its grievance is arbitrable because excluded from arbitration unless it arises from a specific only for clear error. see lukens steel co. v. united read literally, they purport to make the union automatically the the parties' cba contains a provision governing the company's employees." id. agreement limits arbitration to those disputes which require collective-bargaining agreement is to be decided, it will suffice for present purposes to hold that a company's decision to subcontract work to an agency that did appellant. activities will not be carried on during work. this does not suggest that the union must be allowed access to these provisions confirm that the parties bargained with respect seventh circuit observed that "a court cannot address the refusal, purportedly pursuant to a non-solicitation policy, to of the union's grievances--entitlement to disability benefits -11- (explaining that "collective-bargaining agreements may include clause is not susceptible of an interpretation that do not find any ambiguity in the [cba] that would permit it to 388 (1975). in kroger the nlrb held that a recognition clause id. at 209 (quoting at&t techs., 475 u.s. at 650) (emphasis u.s. at 584�85) (emphasis added) (alteration in original). current dispute, he was "not aware that rite aid had a arose as a term of an implied-in-fact collective bargaining fifty years ago, the supreme court decided three cases, the meaning of an ambiguous provision of the cba, an asserted of whether the merits appear favorable or unfavorable to an propose to continue working, we found that the agreement did examine the potential merits of the claim sought to be arbitrated, inapplicable because this case does not involve an expired cba, providing for the applicability of the cba to new stores. the o n e o f t h e s e p r o v i s i o n s -- t h e r e c o g n i t i o n the possible inference that [the supervisor] ha[d] a right to return accordingly, under a literal reading, it requires rite aid to light of section 11.4 of the cba, which provides: "no courts, therefore, have no business weighing the respective collective bargaining agreement regardless of 21--peerless cautioned that courts may not "inquire into the solicitation. the union referred the three grievances to as the parties have agreed, by the arbitrator." at&t techs., 475 the union argued that because its grievances arose under at issue of arbitrability are not "intertwined" in a similar sense: it -51- alia, that his denial-of-benefits grievance arose under the the light most favorable to the non-moving party, there remains in advance that no award to the union could receive judicial d.c. circuit court's interpretation, agreeing that such determining whether a grievance must be arbitrated. am. mfg. subcontract was "unfair" and "a clear case of violating the united steelworkers of am., 989 f.2d 668, 674 (3d cir. 1993) even though (1) the collective bargaining agreement there 194. days, it is presented to rite aid's director of labor relations. grievance non-arbitrable. it noted that "[o]nly where [factors determine the question of arbitrability. the union here would collective bargaining agreement] before it can send the question representatives may enter rite aid stores, and (2) rite aid has22 the parties agreed to arbitrate this dispute, and we cannot avoid need the employer entertain any grievance that does not involve f.2d 802, 806 (d.c. cir. 1975); see also nlrb v. retail clerks to their application to the grievances and arbitration clause in the it must accept some alternative means by which the union can because rohm & haas is a precedential opinion of this court. the union's grievances indeed arise from an interpretation of the majority's analysis. indeed, in concluding that grievances interpretation of the recognition provision is not nearly as compensation. . . . we cannot infer an intent on the part of the reading" of the collective bargaining agreement did "not permit parties' bargaining history that the timing issue was "left and scope of the parties' arbitration agreement is subject to our we rejected the union's argument that its bare claim of a the consolidated grievances remain in arbitration2 interpreting the arbitration clause." warrior & gulf, 363 u.s. interpreting agreements in order to determine whether the recognition, observation, and/or privileges provisions are -14- agreement, or . . . , under normal principles of contract that "involve the interpretation of any provision of" the cba. the union or one of its members may file grievances with rite of a bargaining agreement for "forceful evidence" from the from some specific article" of the collective bargaining we question the union's reading of this provision, and its expressed in it."). where "the subject matter of the union's grievance was whol[]ly erred in compelling arbitration of retired employee's grievance arbitration, not merely those which the court will ensuring that we do not overstep our "very limited" role in advances based on the decision of the national labor relations the construction to be placed on any clause or clauses of the (which do not include a provision even remotely applicable to id. at 95. instead, we adopted the following test for determining not that kroger ii is ambiguous, but that it results in ambiguity in sum, i believe the recognition provision sufficiently prior to the arbitration hearing, rite aid filed an action for the third circuit dissent's discussion of rohm & haas, significant though it is, is merits and agreed-upon arbitrability questions. int'l that arose before expiration, where an action taken after provisions of the bargaining agreement could be construed as -32- grievance has merit--all collapse[d] into the same inquiry: in our view, a right of union access to newly acquired unilateral and unfettered discretion of the union.'" maj. op. at "implicit" limits on that right; otherwise, the company could -40- be reasonably interpreted to provide for disability benefits or to the cba is broad but not unbounded. section 11.4 of the cba dispute is not amicably resolved, ultimately for resolution of the employees sought to arbitrate those claims under the parties' exclusion for disputes over the circumstances in which union ii. the steelworkers principles application of the steelworkers principles where the bargaining clause by raising a legitimate question of the cba's bargaining agreement was "weak" (but not "impossible"), id. at diagnostic provided for arbitration of "[a]nydisputearising out the union is nevertheless required to demonstrate majority matter." id. we concluded the answer was clearly no. whether, had they been so authorized, those grievances would philadelphia, pa 19103 provision in the agreement. see rohm and haas, 522 f.3d at (1) "[a]rbitration is a matter of contract[,] and a party charity events." at [rite aid] stores" within the counties covered by the cba. otherwise, the question of whether the parties agreed to arbitrate sets out the circumstances under which employees are to be held -2- provision, e.m. diagnostic, 812 f.2d at 95, to impermissibly its arbitrability determination. we cannot agree. decisions of an employee who had been promoted to a supervisory position and in the jurisdiction of local 555, that as of the time such they were required to determine, as a threshold matter, whether ongoing relationship under that agreement. with scant evidence district court judge: honorable christopher c. conner to mean that the employer waives its right to a board ordered int'l union local one, no. 07-cv-708, 2009 wl 185764 *45�46; albertson's, no. 97-977-jo, slip op. at 14. these from arbitration." at&t techs., inc. v. comm's workers of impermissibly considered the merits of its grievance in making may substitute its own interpretations of substantive provisions similar arbitration decision. see albertson's inc. v. local 555, gives rise to its access grievance. co., 522 f.3d 324, 330 (3d cir. 2008); harris v. green tree arguably grants it a right of store access, and it is therefore brooks eckerd stores, rite aid had permitted it to enter other on behalf of individuals who had either been elevated to provision. arbitrability determination required it to interpret various clauses inextricably intertwined in litton, the supreme court found it aid. the cba provides for review of the grievance by grievance from arbitration, . . . only the most forceful evidence express provisions of the contract, as the industrial common -39- denied the grievances, relying on rite aid's "no solicitation" -16- cba's interpretation," id. at 9; (3) the recognition, precedent." maj. op. at 15 n.7. i do not question the binding monroe, wyoming, susquehanna, luzerne, columbia, sullivan, explicitly memorialized in the cba--of allowing union necessarily reached the merits of the grievances. see id. at u.s. at 650 (arbitration provision that provided for arbitration of (w.d.n.y. jan. 23, 2009); 1199 seiu, united healthcare -46- expiration infringes a right that accrued or vested under the stores." maj. op. at 11. however, the nlrb has ruled that the -52- -25- (1) does the present dispute come within the history suggesting an intention to exclude such disputes from arbitration to demonstrate, based on the parties' past practices federal district court for the district of oregon enforcing a -4- rite aid to "notify the union of any new store openings or methods of proving majority support"). the court noted, bargaining agreement at issue in litton provided: "differences precepts are as follows. 2. the subject matter of the union's united food and commercial workers union, are not "inextricably intertwined" distribution of material . . . if one or more of the rite aid united states court of appeals is rightly regarded as being outside the "scope of . . . arbitrable -12- the employer's establishments to satisfy that this to "associate and non-associate activity on behalf of any cause the parties intended such an exclusion? bargaining agreement (the seniority provision), and (2) of the cba is correct. in my view, such analysis veers the supreme court and courts of appeals have made clear that subcontract work," the executed bargaining agreement court's decision in peerless pressed metal corporation v. i address these questions in turn. least, this interpretation is sufficiently plausible to conclude that provision. this presumption is "particularly applicable" where, position as rite aid's employees' exclusive bargaining agent of post-expiration grievances: agreement limited the scope of arbitration to matters regarding granted the company the right to subcontract, there must be indeed, the dissent does not attempt to explain why we should and only if, after the evidence taken as a whole is construed in from arbitration, and there is no "forceful distribution of christmas turkeys to its employees," in the the scope of the collective bargaining agreement. for example, union membersattempted to enter]." mr.firment'sdeclaration employees, whether the grievance is arbitrable, and whether the provision thus limits the grievances that the union may "intertwined," gkn aerospace, 431 f.3d at 627, or i. background strong a case for arbitrability as the grievance in e.m. argue that the supreme court had accordingly reached the "the important point is that factors such as aptitude and ability comes within the "scope" of the arbitration provision (i.e., affirm. 7 (quoting e.m. diagnostic, 812 f.2d at 95). the concern is that (grievance regarding the timing of recall of employees arbitrator's interpretation of their contract--not ours. . . . if we like the majority, i refer to the parties' collective9 i express no view on the ultimate merits of the union's acceptance of the union's characterization of its claims" would proceeding, and a hearing date was set. several decades. in june 2007, rite aid acquired a drugstore arbitrations concerned a grievance challenging an employer's overruled the portion of nolde holding that a court answering agreement and any alleged violations of the agreement, [and] ruled that provisions of this character--also referred to as accept an arbitration proponent's citation to a particular division agreement covers rite aid stores in philadelphia, [rite aid] recognizes the union as the sole and intertwined" in this case, i see nothing curious about the we observe as did the district court that article 25 of8 court has stated this prohibition in forceful terms: plenary review. united steelworkers of am. v. rohm and haas -5- line of inquiry, and i cannot discern from litton any intention on falls within the zone of interests that have received protection in opinion of the court delaware, bucks, montgomery, and chester counties. the 175, 179 (3d cir. 2009). summary judgment is appropriate if during september and october 2007, representatives of local demonstration of majority support. see houston div. of the authorizes courts to consider the merits of grievances whenever theunionsubmitted the declaration of executive vice11 provision authorizes union representatives to enter rite aid when read literally, the recognition provision purports to do two decisions from our sister circuits applying litton outside the id. at 92. evidence" exists because the cba includes other provisions grievance. enter. wheel & car corp., 363 u.s. at 596. or opened stores, without a board-directed election or other "inconsistent with the [collective bargaining] agreement's recognition of the union as the bargaining agent for the provision: representatives may enter newly acquired stores for the purpose arbitration. thus, we must order the parties to arbitrate the23 soliciting rite aid's employees for membership in [the pending the outcome of this appeal. precedent confirms our ability to consider the context of a cba my view, distinguishing between these questions is critical to grievance is referred to arbitration. under section 11.3.1 technologies. of what the employer termed the "plain language" of the plan. unknown--prohibits the "[s]olicitation for any cause or liable for cash shortfalls; section 15.8 permits associates to the employer entertain any grievance that does not involve the implicated by a grievance that one party seeks to arbitrate. hyster co., 2 f.3d 233, 235�36 (7th cir. 1993) (district court the meaning and application of the provisions" of the collective (emphasis added). interpretation of the recognition provision is correct. rather, at 12, the union has submitted an arbitration decision reaching the grievances to arbitration, rite aid filed a complaint in the rite aid since february 2000--in which he averred that, "[t]o bargaining agreement's broad arbitration provision). the union's argument regarding the privileges provision. i the union's grievance as "frivolous," given the agreement's bargaining agreements (cbas) covering rite aid stores in interpret a provision of a bargaining agreement. the arbitrability question is not to look to the merits of the 1600 john f. kennedy blvd. that may arise between the parties hereto regarding this election--by preventing the union from showing majority collective bargaining agreement contains an arbitration it alleges that the union's exclusion from the newly-acquired philadelphia, pa 19103 cir. 1986). in rohm and haas, however, we clarified that this arbitrability of a denial of disability benefits. management and arbitrate. although "[d]oubts should be resolved supervisory positions, or had retired, were covered under of the agreement. see id. at 629-30. the court understood this strikes us as a non sequitur. the nlrb's failure to circuit will presumably conclude that they may examine the the majority concludes that the recognition provision is not to the extent that decisions of other arbitrators have found in are first to be filed with the store manager, and if not resolved policy does not reference union activities, but purports to apply presumptively appropriate unit into a larger unit without a subject matter of the grievance is one that is submitted no "forceful evidence" from the parties' bargaining the agreement had expired nearly a year before the layoffs sole and exclusive bargaining agent for the does not apply. accordingly, the union's store-access grievance guise of enforcing the parties' agreement to arbitrate only those transfer between the front end and pharmacy departments "in "privileges" referenced in section 15.3 unless the clause's resolved this issue by adopting a practice--even if it not is not attempting to enforce a right that is "wholly outside the cir. 1971) (holding a dispute arbitrable because it arose under attempting to arbitrate a grievance under the collective procedures which the clauses permit is a matter for the parties ("the labor arbitrator's source of law is not confined to the except as we point out in part iv, where the claim's merits and its face is governed by the contract." am. mfg. co., 363 u.s. at provisions of a labor agreement, even through the back door of six most senior employees. like the cba in this case, the said with positive assurance that the arbitration eckerd stores violated this provision of the cba. a privilege that "shall be continued" under the cba � or, at the agent" for all employees in rite aid stores, whether existing at u.s. at 568. right. conclusion that the union's grievances do not actually "involve issue of access to the eckerd stores and their employees. did not address whether the policy has ever been applied to merits, but because the merits and arbitrability issues were provides in relevant part: -18- broad); see also warrior & gulf, 363 u.s. at 576 (arbitration arbitration. see e.m. diagnostic sys., inc. v. local 169, 812 arbitration clause. in seeking to compel arbitration, the union provision of the cba and its claim that the grievance arises consider "substantive provisions of the collective bargaining grievances even if the union's interpretations of the arbitration. employees." 2 f.3d at 235. does not require interpretation of section 5.1, the observation notwithstanding that presumption, "arbitration is still a arbitration provision, but rather on its concern that applying the bargaining agreements as a single "cba." maj. op. at 3 n.1. union]." rite aid submitted the declaration of human brief--does not, as the majority contends, broadly authorize under a completely separate erisa plan--fell wholly outside requiring the parties to go through an nlrb-directed remain constant, but change over time." id. at 210 ("we cannot the employer's prior practice of distributing christmas turkeys), arbitration provision was broad, we applied the presumption of12 seniority rights did not "arise" under the expired agreement, it grievance is arbitrable inasmuch as neither rite aid nor the (erroneously given as "monture" in the cba), carbon, wayne, respects relevant to this appeal. for the sake of convenience, we other conditions pertaining to employment for . . other provision of the contract expressly exclude arbitration provision was limited to matters related to the right that implicates a fundamental aspect of the parties' rite aid stores. indeed, we rejected a similar argument in e.m. membership is so "easy" to answer that arbitration is not called thereunder without critical examination. unquestioning the supreme court ruled for litton and held the alternative is to utilize the services of an arbitrator." warrior & do so--or, using the language of e.m. diagnostic, whether the an election; instead the employer must accept alternative `working conditions'" [under the collective bargaining -20- under sections 11.1 and 11.2 of the cba, grievances4 -50- union may show majority support in newly acquired stores, scope of the cba," maj. op. at 16, such as forcing rite aid to arbitration. see, e.g., united parcel service, inc. v. int'l broadlyhold that "the meritsmaybe considered when necessary utilized or objected to consistent with the[se] clauses." retail undermined if courts had the final say on the merits" of a entering newlyacquired stores to distribute authorization cards. arbitration to disputes requiring an interpretation of the subcontracting grievance was not arbitrable based on evidence the agreement or its construction," id. at 19. litton does not the district court vacated the arbitration award, but the non-arbitrability. on july 1, 2008, the parties filed cross- significance in interpreting their agreement") (internal quotation -13- -38- cba's arbitration provision, applied only to specific correctness of the arbitrator's award." id. at 653. by contrast, the dissent does not take issue with rohm & haas, as it cannot, may be considered when necessary to determine arbitrability. parties' intent to arbitrate a particular dispute, and reviewed the context of grievances arising under expired collective bargaining agreement's grievance procedure were authorized to agreement[,] shall be determined by arbitration . . . ." id. at outside the scope of the cba." maj. op. at 16. i do not believe proper assessment of employee sentiment as to representation."). employees in newly-acquired stores, despite the requirement of scope of the cba. the union's store-access grievance does not reason the union seeks access to the stores.) we agree with the conflates that question with whether the union's interpretation to rite aid's right to open new stores, the majority concludes clause. the recognition clause merely establishes the union's added). and the agreement contains a broad arbitration by the present employer since its acquisition of observation provision is irrelevant to the union's grievances, provision itself constitutes "forceful evidence" that the parties "`leave[] the scope of the arbitration clause subject to the we acknowledge that where an effective to consider in the first instance," and "express[ed] no opinion which rite aid has waived by virtue of kroger ii)--is this situation. the union here argues that the cba at least scope of the arbitration clause?[;] (2) does any exactly that (i.e., make the union automatically the bargaining (labeled section 11.3 in the philadelphia division cba), the believe my colleagues misperceive the union's argument: it is potential disability." id. at 334. because the employee did not bargaining agreement exists between the parties, evidence of the dispute's arbitrability," given that the "merits collectively known as the "steelworkers trilogy," which back door of interpreting the arbitration clause, when the union council, 587 f.3d 648 (4th cir. 2009), is inapposite. in or "sufficiently implicate[]" any provision of the cba, id. at 9, litton cba provided that, "in case of layoffs, lengths of the majoritysuggests that i dismiss rohm and haas (on alternative to initiating an nlrb-directed election (the right to -48- newly-acquired stores. the union has not explained why any majority's conclusion that the merits and the issue of 1028, 1033, 1037 (s.d. ind. 1999) (discussing litton and ambiguous (in rejecting the union's interpretation of that "additional stores" provisions--are unlawful because, when wages to its employees--falls outside the "zone of interests" -26- march 31, 2009, that the parties had not agreed to arbitrate the motion and denied the union's motion. the court found that the referring to or incorporating the disability benefits provided for ppg, the employer sought to vacate an arbitration award while simultaneously urging us to consider favorable (to the more deferential standard applies only where the relevant implausible as the majority suggests. arbitrate. id. exclusive bargaining agent for the purpose of kroger co. (kroger ii), 219 n.l.r.b. 388, 389 (1975). to the arbitrator"). stated another way, these courts believed under the parties' erisa plan (which lacked an arbitration that have received protection in the agreement. rather, we are excluding it" from arbitration, or (2) rite aid (the party provision in order to determine whether it is sufficiently [n]on-solicitation policy at any of its retail stores" within the no genuine issue of material fact. prowel v. wise business bargaining agent for all employees employed by the [employer] -10- having outlined the controlling principles, we turn now the union's interpretation of the observation provision. "[n]o grievance shall be filed by the associate or the union, nor bargaining agreement to grant the union the right to enter new found it necessary to interpret the agreement in order to properly whether the collective bargaining agreement covers retired a right of access cannot be considered one of the arbitration, where they were consolidated into a single local 1776, of the cba also contained a section 2.3, which required rite added). indeed, in refusing to apply the presumption of accordance with seniority and ability," and so forth. at 585. the words of the supreme court, "we must determine whether "become entangled in the construction of the substantive am. v. rohm and haas co., 522 f.3d 324, 331 (3d cir. 2008). cited five additional arbitration decisions that apparently interests these individuals sought to enforce came within the 567�68. this principle implements the "federal policy of retail clerks, 510 f.2d at 806, including whether union following a strike was arbitrable, despite evidence from the arbitrator--relying on the ambiguity in the parties' recognition rite aid stores for at least one purpose: the observation manager. if the dispute is not resolved in the following three arbitrability takes precedence over the general rule to avoid union representatives seeking to enter rite aid stores to solicit b. observation clause deal with the rights and responsibilities of employees covered by or organization, with the exception of company-sponsored counties covered by the cba; and (2) rite aid "had, for any contractual right as of the agreement's expiration." id. agreement had expired. to determine whether the grievances protection in the collective bargaining agreement. substantive provisions of a labor agreement, even through the 555, civil no. 97-977-jo, slip op. at 4 (d. or. 1998) (emphasis to determine arbitrability." id. indeed, we had no reason to lodged by a supervisor were arbitrable--even though the to both newlyacquired and newlyopened rite aid stores within an assertion" that the obligation to pay overtime wages only for referred to above, we simply do not find them persuasive. "intended to exclude fromarbitration claims which arise wholly determining "whether there is particular language in the [cba] -15- policy. that policy--for which the effective date is principles--i.e., thoseprinciplesdo not contemplate that acourt however, that "[t]he specific non-election recognition touch incidentally on the merits. be left to the arbitrator." e.m. diagnostic, 812 f.2d at 97. the neither is true here: (1) the cba contains no arbitration union has standing to file a grievance on behalf of retired hyster, and reasoning that "it is the court's responsibility to whether the party seeking arbitration is making a claim which on it is agreed that the union duties and pennsylvania, seeking a declaratory judgment of the grievances' union's submission of these decisions. 332 ("although we hold that the bristol cba's arbitration 14�15; (2) the grievances "rais[e] a legitimate question of the inc., 431 f.3d 624, 629 (8th cir. 2005) (where arbitration 762090 (s.d.n.y. mar. 24, 2008). the majority, like the district court, also relies on litton acquired stores were not yet represented by the union. when of the parties' past practices, understandings, prior agreements, intertwined," maj. op. at 17; and (2) these questions are argument that supervisors were covered under the collective recognized. id. at 389. however, the nlrb did not specify the had (1) interpreted a substantive provision of the collective in this appeal, we must decide whether the parties had and haas co., 522 f.3d at 332. unless the parties clearly to appearing frivolous, involves a subject matter wholly outside unrelated to any interest protected by the collective bargaining (3) in deciding whether the parties have agreed to disagreed with the board's conclusion regarding the invalidity interpretation of the recognition clause, since that interpretation cba expressly provides that union representatives may enter determine the question of arbitrability." maj. op. at 18�19. i court intended to announce an exception to the presumption of regardless of the grievances' merits. diagnostic, where the employer argued that the union's interpretation" the union advances, id. at 12; and/or (4) the right acknowledged the employer's unfettered right to subcontract clause is broad, the underlying basis for the grievance submitted counsel for appellee internationalunionofelectrical,radio and machineworkers, provision nor any other provision of the cba sets out the denying them the benefit of that bargain.") (emphasis in application of the seniority provision was dependent--"do not no. 97-977-jo, slip op. (d. or. mar. 16, 1998). both of these15 shall be continued. has "urg[ed] us to consider favorable . . . merits decisions as agent for employees in newly acquired stores). thus, although interpretation, [involves] [a] disputed contractual right [that] national labor relations board, 501 u.s. 190 (1991), to arbitration clause. both parties agreed in ppg that the bonus is the union's position far-fetched? hardly. for though courts should determine whether the grievance "arises under" without deciding whether "the collective bargaining agreement underlying claim," and instead holding that the duty to arbitrate rite aid had interfered with the union's "exercise of [its] "scope" of the cba's arbitration provision, i need not address -9- bargaining agreements that applied only to "employees." see section 2.1 of the cba reads: agreement's expiration."). not permit parties to include employees in a newly created context and provisions are entirely ignored. article 15 is titled inconsistent with our duty to determine arbitrability because it grievances comes within the "zone of "collaps[ed] into the same inquiry," hyster, 2 f.3d at 235, precedent, i respectfully dissent. concluding that the union's subcontracting grievance fell within established that the parties' practice, usage and custom [are] of rite aid of pennsylvania, inc. "frivolous," as engaging in a substantive interpretation of these arbitrability applies. accordingly, the union's dispute is -23- in litton financial printing div. v. nlrb, 501 u.s. 190 right to "open new establishments of any kind," and requiring district court with reaching the merits of the instant dispute in union's underlying grievances, but it reveals nothing about the contrast that situation with a grievance that, in addition which i was on the panel that decided it) without explaining this provision does not distinguish between existing and newly support through this alternative procedure. unilateral and unfettered discretion of the union." e.m. acquired stores; rather, it applies to "all" employees "employed such as aptitude and ability] were equal was the employer appears to the court to be frivolous, the union's note, however, that our decision in united steelworkers of the cba, and thus falls within the scope of the cba's broad17 parties' intent to exclude from arbitration disputes over the and arbitrability questions are distinct." maj. op. at 10 n.5. in stores and their employees. we examine each in turn. -44- 501 u.s. 190 (1991), to justify its consideration of the merits of accordingly, the union seeks the opportunity through of interests that have received protection in the collective procedures to be followed in case of a disagreement over arbitration provision is broad, and that the presumption of moreover, the union's grievances present at least as aid's attempts to bypass arbitration of similar disputes. see -24- aid recognition provision is the same--it "purport[s] to add its arbitrability are inextricably intertwined. see lukens, 989 retail food store or stores located in clark county, washington, "sufficiently implicated by a grievance that one party seeks to not apply to the employee's grievance, and the denial-of- union's grievances "come within the scope" of the arbitration -34- agreement contained an arbitration provision whose scope was its `employees' through the grievance procedures (including bargaining in the bargaining unit in respect to provide for arbitrating a plan administrator's denial of such deem meritorious." "exclusive bargaining agent" for employees in newly acquired not describe or purport to include anything resembling the at&t techs., 475 u.s. at 650 (quoting warrior & gulf, 363 determining whether a post-expiration grievance is arbitrable, . [a]ll full time and part time selling and non- benefits arising from a separate erisa plan." id.7 commitments by the employer to forgo its right to resort to the explained that, to "arise under" an expired collective bargaining provisions would involve an impermissible review of the limited the scope of arbitration to matters regarding the arbitration. i do not believe the steelworkers courts envisioned i, 208 n.l.r.b. at 929 (considering recognition provision that benefits claim was therefore not arbitrable. we concluded: "we bargaining history of an intention to exclude a dispute from mfg. co., 363 u.s. 564 (1960); united steelworkers of am. v. district court correctly concluded that the recognition clause is commc'ns workers of am., 475 u.s. 643, 648 (1986). those aid to "notify the union of any new store openings or merits.24 lacking any arbitration provisions. the employee argued, inter hansen--rite aid'sdirector of labor relations--alleging that determine whether the . . . employees may be covered [under the where an employee seeks to continue working in spite of a at 650 (quoting warrior & gulf, 363 u.s. at 584�85). those disputes which genuinely implicate one or more provisions bargaining agreement" and one that the parties have agreed to september 2007, rite aid denied them entry. union, uaw, 349 f.2d 412, 413 (3d cir. 1965); see also e.m. subject to the unilateral and unfettered discretion of the union." cba's arbitration clause. the union filed a timely notice of -30- scope of the collective bargaining agreement--simply by int'l bhd. of elec. workers, local 1 v. gkn aerospace n.a., favor of unions relying on the analysis of kroger and the theory further supporting this conclusion is the fact that the17 v. cba in that case included the following provision: "the that the union files a grievance challenging the employer's in a similar case the very result it asks for, see 2005 aaa not arbitrable. the parties filed cross-motions for summary10 steelworkers of am., 989 f.2d 668, 672 (3d cir. 1993); john f. union's characterization. id. i note that at least two other courts have rejected rite10 on march 31, 2009, the district court granted rite aid's provided that "[t]he union shall be the sole and exclusive present case. agreement); and (2) whether the grievance itself has merit. in contends that its present grievance must indeed involve a. the union's grievances come within the scope "on its face is governed by the [cba]," am. mfg. co., 363 u.s. diagnostic, 812 f.2d at 96 n.2 (describing boeing co. as a case whether there is particular language in the written provision applied only to grievances submitted by "employees," a. recognition clause local no. 46 v. thomson newspapers, inc., 68 f. supp. 2d that no rights were vested was the court able to conclude that a basis for distinguishing that decision. arbitrate." maj. op. at 14�15. (1960). as the supreme court has observed, "[t]hese precepts 1845 walnut street, 24th floor do not remain constant, but change over time. they cannot be had a right to return to the bargaining unit. because the district court granted rite aid's motion and denied the union's [within the counties identified in the cba]. effect of a recognition provision worded similarly to the rite arbitration proponent's interpretation of the bargaining lancaster, berks and lebanon counties. part of the collective bargaining agreement although not similar arbitration provisions. in such cases, courts in our such a screening role for courts, nor do i believe the litton agreed to arbitrate a labor dispute, thereby rendering it were arbitrable, the court first sought to interpret its decision in not satisfy the "zone of interests" test, maj. op. at 7, the whether an employee should be considered physically incapable issue are broad, and that the presumption of arbitrability any reasonable interpretation, agreement to arbitrate can be presumption of arbitrability "in the context of an expired motions for summary judgment. arbitrable unless (1) the cba contains an "express provision union representatives attempted to enter six of the new stores in which survived the expiration of the agreement, and thus the arbitrate a particular grievance, courts may "not . . . rule on the that the "subject matter" of the grievance--i.e., the involved a similarly narrow issue: whether grievances brought america v. rohm and haas co., 522 f.3d 324 (3d cir. id. (emphasis added). applying this test, we had "no difficulty" the collective bargaining agreement at issue in e.m.12 employment . . . . privileges of the union. for example, section 15.4 establishes decisions, reasoning that any "ambiguity in kroger . . . does not decision from the district of oregon confirming an arbitration bargaining agreement . . . would make limitless the contractual the merits. id. at 209. fall within the scope of the cba's arbitration clause because it contract." id. 451 f.2d 19 (1st cir. 1971)--issued two decades before the facts] might be to the merits of the company's case on the the union next relies on section 5.1 of the cba, which -36- "grievance arises thereunder," and contending that a court would "zone of interests" protected under the agreement. this issue steelworkers local no. 1617 v. gen. fireproofing co., 464 f.2d whether a grievance comes within the "scope" of an arbitration the merits and the question of arbitrability are "inextricably the parties agree that the three cbas are identical in all recognition provision--i.e., recognizing the union as the arbitration proponent. employer merely disagreed with the arbitrator's interpretation are not included").20 to negotiate a specific limitation on the company's right to am., 475 u.s. 643, 650 (1986) (quoting united steelworkers of e.m. diagnostic sys., inc. v. local 169, int'l bhd. of teamsters, absence of any express provision excluding a particular arbitrable under the parties' collective bargaining agreement. nolde brothers, inc. v. local no. 358, bakery & confectionary is equity in a particular claim, or determining acquisitions within the five (5) countyphiladelphia area." if the the majority, like the district court, concludes that the grievances or its interpretations of the observation, recognition, apply that presumption wholesale in the context of arbitrability question without at the same time addressing the considered the arbitrability of a grievance challenging a the sense that `[a]n order to arbitrate the particular arbitrability is contested. see at&t techs., 475 u.s. at 649, underlying basis for the [union's] grievance . . . must still arise violations of the agreement, [and] the construction to be placed explicitly granted the company the right to subcontract, and (2) automatically the "sole and exclusive bargaining agent" for decades, permitted [union] representatives . . . to have access have been meritorious. local 588, 587 f.2d 984, 986 n.2 (9th cir. 1978) (agreeing that compliance with the instant cba at stores to which the cba we are presented with a similar situation in this case. in "specific non-election recognition procedures" by which the on november 7, 2007, the union filed three identical is authorized to bring grievances under it. at bottom, the "the merits and arbitrability questions are inextricably questions of contract interpretation to the arbitrator," the court's interpretation of the agreement, as it does here, a grievance is 1. the distinction between the subject territory reserved for arbitrators in at&t required to compel arbitration. it is undisputed that the cba's co., 363 u.s. at 567. of grievances filed on behalf of employees who were laid off arbitrability issue, rule on the merits, so be it." id. indeed, both of the cba. our task is therefore to decide whether the union's store access "involve[s] the interpretation" of provisions of the the collective bargaining agreement in rohm and haas the venerable legal principles guiding the construction -6- whether authorization cards [i.e., cards that designate the union agreement. id. at 332. accordingly, we considered substantive id. at 649�650 (quoting am. mfg. co., 363 u.s. at 568) the purpose of soliciting membership. see, e.g., consol. rail13 contexts.21 chain formerly operated by brooks eckerd. several of these a grievance challenging an employer's "decision to terminate the cf. united steel workers int'l union v. trimas corp., 531 f.3d electrical, radio and machine workers, 451 f.2d 19, 21 (1st agreement "limit[s] the scope of arbitration to matters regarding -17- their employees because the union does not presently represent whether,asthe union argued, "disabilitybenefitsare considered of an arbitration clause of this character when the kroger, it does not translate to ambiguity in the instant cba. the establishments covered by this agreement "impossible" or "inconceivable"). procedure for the filing and arbitration of grievances, which majority asks whether (1) the union's grievances "genuinely" covered by the collective bargaining agreement, the court was kroger co. (kroger i), 208 n.l.r.b. 928, 929 (1974) ("we will sufficient to make the dispute arbitrable, as "[s]uch an a construction of an agreement that, while "weak," was not including, but not limited, to [the six brooks eckerd stores that arbitrability. the merits and arbitrability questions are distinct, agreement that there is no need for arbitration," which is "but in earlier cases, we had treated a district court's3 membership. see 2005 aaa lexis 383, at *1; albertson's, during negotiations. 812 f.2d at 97 ("however relevant [those this kind of dispute from arbitration?[;] and (3) is in sum, section 11.4 of the cba, which provides that agreement is to submit all grievances to rite aid denied the grievances, citing a policy against the district court's decision regarding the applicability supervisor's grievance was not arbitrable because "a plain for. although the majority reaches this conclusion under the covers the asserted dispute.'" but we refuse to when local 1776 advised rite aid of its intent to submit "miscellaneous working conditions," and all of its provisions the cba. the privileges to which the cba refers are not corp. v. ry. labor executives' ass'n, 491 u.s. 299, 311 (1989) not by the court asked to order arbitration, but as subcontracting all work in the bargaining unit would have been the recognition provision is ambiguous because it cannot mean means by which unions are to demonstrate majority support in underlying merits of the dispute." id. at 236. after discussing contracting parties to freeze any particular order of layoff or vest necessary to refer to the merits in order to determine what the express language to the contrary. we could not, however, say grievances did not involve the interpretation of any cba we are not the first court of appeals to read litton this union ever agreed to arbitrate the access issue. consideration of the merits of a grievance." id. at 628. the cba expressly excludes only one topic from the22 726, 729 (6th cir. 1972) ("in order to determine then whether context of post-expiration grievances. however, these cases arbitrability decision as a finding of fact with respect to the benefits were provided only under a separate erisa plan store-access grievance falls within the scope of the arbitration interpretation of any provision of this agreement." (emphasis instrument which will support the claim. the encompassed by the cba's arbitration clause, it surely would support among employees of those stores before it can be as "[t]he cba cannot apply to the newly-acquired stores or to least one of those provisions, arbitration was required, matter[s]," in addition to being frivolous. boeing co. v. int'l arbitrability that would effectively swallow the presumption were to weigh in on the merits of their case, we would be potential merits of the underlying claims." id. the supreme purpose of soliciting membership is founded on its interpretation the union additionally argues that the district court rite aid of pennsylvania, inc. ("rite aid") operates a employer] had the right to set the timing of the recall, it would not be bound by this very recent binding precedent. the grievance in the first place. cf. terre haute newspaper guild, -29- end of the matter. as the majority points out, "[u]nquestioning `"disability benefits" are considered "working conditions" decisions serve only to underscore that the union's asserted litton, the court concluded: "if the court must, to decide the associates engaged in the interaction is on working time." the u.s. at 649�50. indeed, a contrary position would "reduce[] to bargaining agent for employees in newly acquired stores without clerks, 510 f.2d at 806. on remand, the nlrb adopted the has not agreed so to submit." warrior & gulf, 363 u.s. at 582. f.2d at 672. rather, the court is limited to the construction of exclude from arbitration claims which arise wholly outside the covers retired employees," because, in so doing, the court had 3. the merits and the issue of arbitrability representation status in . . . new stores." houston div. of the the cba's recognition provision provides, in pertinent harkins co., inc. v. waldinger corp., 796 f.2d 657, 659-60 (3d entitled to present that claim to an arbitrator. establishments of anykind." thephiladelphia division version to support its reading of litton, the majority relies on as i have explained, the steelworkers principles prohibit this because, in determining that the grieving employee was not union argued that the seniority provision created a vested right board (nlrb) in houston div. of the kroger co., 219 n.l.r.b. steelworkers of am. v. enter. wheel & car corp., 363 u.s. 593 not susceptible of an interpretation which would yield such a chain of drugstores in pennsylvania. united food and arbitrability are "inextricably intertwined" reduces to the believe this is incorrect. the litton court did not justify its of three provisions of the cba--the "recognition," grievances (one under each cba), asserting that the cbas have received protection" in the collective bargaining nature of rohm and haas, but conclude that it is simply not on provision--sufficiently demonstrates that the union's asserted agreement." (emphasis added). thus, the plain language of the agreement. id. at 96. we reasoned that though the agreement "observation," and "privileges" provisions. accordingly, the american arbitration association. thus, where the parties have agreed to "submit all brotherhood of elec. workers v. gkn aerospace n. am., inc., 475 u.s. at 649 (citing warrior & gulf, 363 u.s. at 582�83). iv. stores are located in counties covered bya collective bargaining if the matter is still unresolved three days after that, the of the bakery workers' int'l union of am., 28 f.3d 347, 354 have appeared in the cba." maj. op. at 17 n.8. arbitrate a dispute over layoffs of ten workers, including litton's be impermissibly reviewing the merits if it were to reject the part (and with emphasis added): the course of declaring it non-arbitrable (see infra part iv), grievance should not be denied unless it may be the union points to three provisions of the cba, claim that the employer has violated the that the parties intended to exclude the disputes at issue from progressively higher levels of rite aid management and, if the argued november 10, 2009 of a purpose to exclude the claim from arbitration can prevail.'" in favor of coverage," we must determine whether representatives from entering the stores. specifically providing for the applicability of the cba to new disputes arising out of a collective bargaining agreement, the has in fact been accepted by several arbitrators.5 resourcesmanagermark firment--who hasbeen employed by way, or to employ an analysis recognizing the entwining of the original) (internal citation omitted). darren m. creasy 141 (3d cir. 1995); laborers' int'l union of n. am. v. foster were not arbitrable"). arbitrability should not apply with its usual force in the context purpose of bargaining in the bargaining unit in * * * * * occurred, litton contested the grievance's arbitrability. the majority strays from permissibly determining whether the -35- e.m. diagnostic, 812 f.2d at 97. grievance was arbitrable. 812 f.2d at 96. just as the company's provisions are valid to the extent they operate as "contractual respect to rates of pay, wages, hours of in our case, the merits of the union's grievances and the gulf, 363 u.s. at 585. the agreement or its construction, the supreme court in litton19 in 1974, the national labor relations board ("nlrb") "[a]lthough . . . the . . . arbitration clause [was] broad, the merits of the grievance, considering whether there 208�09. the court explained, however, that the presumption of the union argues that, in light of kroger i and kroger ii, -21- the grievance "appears . . . to be frivolous, the union's claim that agreement." id. at 20. union's claimed right to access newly-acquired stores. the which revealed that the provision "contemplates a situation andrew w. allison [argued] believe it is. the geographic jurisdiction of [the] cba[], for the purpose of of working. 522 f.3d at 328-29. company's employees," id., rite aid's refusal to allow union found it necessary to interpret the agreement in order to properly that [it] must be regarded as nonarbitrable because it can be seen employer agrees then if the employer should establish a new "leaves the scope of the arbitration clause subject to the said to vest or accrue or be understood as a form of deferred is undisputed that the cba remains in force and that the union -49- make that showing. it is entirely possible that the parties comprises lehigh, northampton, northumberland, montour in this context, these courts reasoned that the merits of survives expiration of the remainder of the agreement." litton, the majority suggests that the cba's arbitration24 function is "very limited"; "[i]t is confined to ascertaining those stores' employees." maj. op. at 13. of course, the (4) a presumption of arbitrability applies where a i. clause, and arbitration is not properly invoked by reliance on this union, nor need the employer entertain any grievance that does have assumed that applying the presumption with its normal -33- -45- similar to the one at issue in this case waives an employer's right parties had intended a right of access to be encompassed by the reached the same result. id. at *23�24. as noted supra, the scope of the arbitration provision in recognition provision operates as a waiver of rite aid's right interpretation . . . leaves the scope of the arbitration clause -8- under fed. rule. civ. p. 56(c). brown v. j. kaz, inc., 581 f.3d bargaining agreement," even if we trench to some extent upon subcontract all work in the bargaining unit, which would be business of the store. 1776 attempted to enter six of these stores to solicit employee outside the contract [subject] to [the employer's] unilateral relief under that agreement. for example, in hyster the seventh accordingly, "[a] court should view with suspicion an attempt commercial workers, local 1776 ("the union") represents non- -7- the grievance simply alleged that the employer's decision to of obtaining such majority support. parties agreed to limit the arbitration clause of the agreement to the cba in the instant case contains no such provision.6 the union's characterization of its grievances is not the whether "arguable" or not, indeed even if it we addressed this concern in e.m. diagnostic, where we the grievance did not arise under the agreement, and was thus demonstrates that the union's grievances come within the membership. require its organizers to enter the store. if there is ambiguity in stores "to satisfythemselves that [the cba] is being observed." contained no such provision, and (2) a union representative had wheeler corp., 26 f.3d 375, 399 (3d cir. 1994); exxon one cba covers the northeast division, which1 settling labor disputes by arbitration[, which] would be representatives are entitled to access rite aid's newly-acquired (3d cir. 1993) (declining to answer whether litton "impliedly agreement"). been expressly incorporated into a cba with a mandatory rite aid of n.y., inc. v. united food and commercial workers implied, as well as express, terms," and that "it is well provisions of the collective bargaining agreement to determine the best of [his] knowledge, information and belief, rite aid's the union to show majority support through an nlrb election, recognition provision that results from kroger ii in rejecting 651; local 827 v. verizon new jersey, inc., 458 f.3d 305, 309 clear that the "privileges" discussed in article 15 pertain to rite courts to interpret substantive provisions of a collective award under a cba that included a provision specifically b. the union's dispute is not expressly excluded only after it construed the disputed provision and determined interpretation. the union in this case characterizes litton as union argues that its grievances fall within the "scope" of the the union points to several arbitration decisions of aclaimed violation of [thecollectivebargaining agreement]." matters outside of the scope of the arbitration clause." rohm we find it rather curious that the union charges the5 operated by brooks eckerd. the employees of the newly- f.2d 91, 95 (3d cir. 1987). arbitration clause in a collective bargaining agreement gives rise 543, 555 (1964) (citing warrior & gulf, 363 u.s. at 582�83). differently worded recognition provision in albertson's is not provision) were denied by the plan administrator, union counsel for appellant diagnostic, where we relied on "implicit" limits on the 531, 536 (7th cir. 2008) ("if the parties have in fact agreed to agreement after the prior agreement had lapsed). or bargaining history, we are ill-equipped to decide whose c. privileges clause workers union, 430 u.s. 243 (1977), which announced a before: ambro, garth, and roth, circuit judges will therefore refer to "the cba" as though there were a single that they had occurred after expiration. authorized by either supreme court precedent or our own "arise" out of the expired collective bargaining agreement for these reasons, i respectfully dissent. contending that each provides a basis for its claim that union went directly to the jurisdiction of the arbitrator to hear the newly-opened stores within each cba's geographic jurisdiction. status. moreover, the argument continues, although the themselves in the record on appeal, in her opinion the arbitrator -43- bargaining agreements. see luden's inc. v. local union no. 6 seeking a declaratory judgment that the union's grievances were laurence m. goodman [argued] of arbitrability applies: the arbitration provision in the expired collective19 ii. to demand an election in a new or after-acquired store, but that the employee's union had negotiated a collective bargaining the union argues that its interpretation of this clause sanction." john wiley & sons, inc. v. livingston, 376 u.s.16 to the bargaining unit"); indep. lift truck builders union v. arbitration), but that disputes concerning supervisory personnel motion. this appeal followed. presumption in favor of post-expiration arbitration unless specific provisions of [the collective bargaining agreement]" provision that provided for arbitration of "differences . . . as to bargaining agreement to determine whether they are in the instant case rite aid challenges onlywhether the union's at 567�68--that is, on its face local 1776's asserted right of we have identified three questions to guide our in the united states district court for the middle district of establish the principles that guide our determination of whether finally, the union relies on section 15.3, which provides: workers east v. rite aid corp., no. 07-cv-4816, 2008 wl the circumstances in which union representatives may enter in independent lift truck builders union v. hyster co., of such provisions, and concluded that they must "be interpreted financial corp., 183 f.3d 173, 176 (3d cir. 1999). in3 whether the union has a right of store access to solicit we rejected this argument after examining the context, agreement, the grievance must "involve[] facts and occurrences relied upon by the union would not persuade us that the method of resolving disputes arising during the term of a almost one year after the parties' collective bargaining layoffs constituted violations of the agreement notwithstanding of store access the union seeks to enforce can be "plausibly the scope of the collective bargaining agreement. erisa on any clause or clauses of the agreement." id. at 194. the the interpretation of any provision of this agreement," even were we to consider them, the merits decisions and thus do not come within the scope of the cba's arbitration the force of the presumption of arbitrability in cases involving dissenting colleague concedes, this court was required to particular order of layoff or vest any contractual right as of the under which it purported to assert its store-access grievances. not arbitrable based on its assessment of the merits of the would make limitless the contractual obligation to do with the union's right to organize or to be recognized in we are not persuaded by the argument the union reviewing a district court ruling on a motion for summary i fear the majority's holding will significantly undercut "violation" of the collective bargaining agreement was alone rather than explaining why the union's grievances do 2008)--on which rite aid relies almost exclusively in its and/or custom, that they understood the recognition provision representatives to enter rite aid stores for such purposes; i.e., in november2007,local1776executivevicepresident this court and our sister courts had conducted a similar analysis within two days, next submitted to a rite aid human resources law--the practices of the industry and the shop--is equally a confirms that the subjectmatterof theunion'sgrievances--i.e., (opinion filed: february 16, 2010 ) that function is properly fulfilled by an arbitrator, as the parties demonstrates that the subject matter of the union's grievances company has agreed to process any and all disputes involving subcontracting issue, it does not enlighten us on whether the appears anywhere in the cba. selling associates employed at [rite aid] stores lycoming, lackawanna, and pike counties. the philadelphia rohm & haas as a precedent in this circuit. because "factors such as aptitude and ability"--on which that duty because it requires us to interpret a provision of a added). h a v e a g r e e d . 1 8 although cited by the majority, the first circuit20 to grant the union the right to enter newly acquired stores for shall not interfere with the normal operations or majority does, rely on litton financial printing division v. twenty-four pennsylvania counties.1 despite our concluding that the grievance was arbitrable, union, local 1776 (the "union" or "local 1776"), has represented riteaid employeesin 24 pennsylvaniacountiesfor agreement]," and thus "within the range of arbitrable subject infer an intent on the part of the contracting parties to freeze any ambro, circuit judge, dissenting context that we have analyzed, that the parties intended to distinction between two inquiries: (1) whether a grievance a year after kroger i, the court of appeals for the d.c. circuit recognition of the union as the bargaining agent for the acceptance of the union's characterization of its claims is 501 u.s. at 206. applying this rule, the court determined that -47- local no. 1617 v. gen. fireproofing co., 464 f.2d 726, 729 disputes that "involve the interpretation" of the cba, it determination," because "even if the parties agreed that [the such as aptitude and ability are equal." id. however, because grievance procedure: an alleged breach of the no-strike clause. garth, circuit judge: the majority finds it "rather curious" that the union16 derived" from these provisions, id. in so doing, i believe the non-arbitrable. grievance shall be filed by the associate or the union, nor need we will affirm the district court's judgment dated in job classifications set forth herein." albertson's, inc. v. local compelled to call for arbitration of the dispute because, although to a presumption of arbitrability which may be rebutted only by this observation might be relevant to the merits of the recognize the union as the "sole and exclusive bargaining [n]on-solicitation [p]olicy has been and continues to be -31- marks omitted); see also warrior & gulf, 363 u.s. at 581�82 as here, the arbitration provision is broad. at&t techs., 475 (d.c. civil no. 08-33) need [rite aid] entertain any grievance that does not involve the evidence" of an intention to the contrary the majority seeks to distinguish this decision on the15 circumstances in which union representatives may enter new cannot be required to submit to arbitration any dispute which he membership and distribute authorization cards--the obvious another way of saying that the union's grievance is frivolous." provides: "no grievance shall be filed by the associate or the provisions, and that they therefore fell outside the scope of the contract or the performance of any obligation hereunder" was interests" protected by the cba necessarily "intertwined" where a collective bargaining a grievance is arbitrable. see united steelworkers of am. v. am. to demonstrate, imagine a collective bargaining does not require the interpretation of any of the cba's the time the cba was entered or acquired thereafter. translate to ambiguity in the instant cba." maj. op. at 10. i agreement is being observed, provided that same dispute by an arbitrator.4 consistently enforced throughout all of rite aid's stores, access simply do not involve an interpretation of section 15.3, of the arbitration provision that it was arbitrable"); see also united steelworkers of am., rates of pay, wages, hours of employment, and documents are ambiguous. see 522 f.3d at 330 n.7. "order[ed] the dispute to arbitration without first determining fails to heed the supreme court's warning that courts not grievances involving "the interpretation and application of . . . recognizing a right of access to newly-acquired stores, and another recent case submitted bythe union pursuant to6 agreement containing an arbitration clause, but disability as involve wages . . . , individual base rates, hours of -42- necessarily determining that the employee was not entitled to the arbitration clause and any contractual provisions relevant to cba in the context of these provisions. no such provision albertson's, unlike the rite aid cba, included "a provision parties have indeed agreed to arbitrate disputes whose cba's arbitration mandate because it has made a claim which grievance is arbitrable. the union calls our attention to a conferred upon the union a right to access newly-acquired or reading division cba extends to stores in schuylkill, an arbitration proponent could achieve arbitration of a alteration in original). after their claims for disability benefits the majority interprets litton as follows: "because the and enforcement of arbitration clauses in collective bargaining there any other `forceful evidence' indicating that the union alleges that before the acquisition of the was not arbitrable because the "plain meaning" of the collective received protection in the cba; and (2) the union's agreement's arbitration provision is broad and the presumption use of the board's election process in determining the unions' warrior & gulf navigation co., 363 u.s. 574 (1960); united no. 09-1989 the docket number and the parties' names were14 the parties have agreed, by the arbitrator. "the inconsistent with the recognition provision. indeed, it would representatives to enter newly acquired stores to solicit union continuous service will be the determining factor if other things examine the collective bargaining agreement . . . to see if, under parties had agreed to arbitrate. limited to disputes "regarding [the] agreement and any alleged redacted from the arbitrator's written opinion. although not matter and the merits of a grievance or to their employees because the union does not presently on appeal from the united states district court provision'sexpresssubjectmatterlimitations,wereasoned that, the union's asserted right to enter rite aid stores for the added). the union responded by citing three cba provisions iii. discussion to demand a board-ordered election, neither the recognition only privileges which have been granted iii. (2) unless the parties "clearly and unmistakably provide aid's employees' working conditions. article 15 has nothing to such provisions "waive the employer's absolute right to demand the employer recognizes the union as the obligation to arbitrate." litton, 501 u.s. at 209 (emphasis received protection in the cba. in rohm & haas, supra, the parties contested the of the methods that might meet the nlrb's approval would -27- because the union's grievances come within the scope from the bargaining historythat (1) although "the union sought cba. the interpretation" of the cba because they are not meritorious. parties cannot agree, selected pursuant to the rules of the the parties have agreed to arbitrate [the matter at issue], we must interest in joining the union. rite aid barred these vs. ground that the collective bargaining agreement at issue in the seniority rights the employees sought to enforce did not cir. 1993). more specifically, the inclusion of a broad after-acquired stores to the existing [bargaining] units." kroger rite aid stores--falls within the "zone of interests" that have acquired stores to solicit membership, the observation clause the majority appears to suggest that such "forceful23 the cba provided rite aid with the right to "open new clause, "there is a presumption of arbitrability in in litton, the supreme court considered the arbitrability 431 f.3d 624 (8th cir. 2005), involved a dispute over whether stores simply cannot be plausibly derived from the recognition that "[i]f the parties had intended a right of access to be interpretation of any provision of this agreement." this clause. judgment with supporting declarations. in march 2009, the11 bargaining agreement's arbitration provision was "that the (6th cir. 1972) (holding, pre-litton, that supervisor's grievance the parties' past practices demonstrated that they understood the requires rite aid to furnish employees' uniforms; section 15.6 cba's arbitration clause, it surely would have appeared in the store is established this agreement shall apply to all employees the rules under which worked time is recorded; section 15.5 nancy b. g. lassen cannot avoid that duty because it requires us to supreme court's decision in litton--does not support the week. in such a circumstance, we could rightfully characterize arbitrator is selected jointly by the parties or, in the event the permit union representatives to enter new stores to solicit is to be decided, not by the court asked to order arbitration, but lengths our court has gone to avoid reaching the merits even in agreement is not sufficiently "plausible," refuse to compel its scope, as well as any other "forceful evidence" suggesting found."); peerless pressed metal corp. v. int'l union of f.2d at 413. rather, the union seeks to enforce, by arbitrating have served the industrial relations community well, and have