United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 13, 2015 Decided February 26, 2016

No. 14–7162

DISTRICT NO. 1, PACIFIC COAST DISTRICT,

MARINE ENGINEERS’ BENEFICIAL ASSOCIATION, AFL-CIO,

APPELLEE

v.

LIBERTY MARITIME CORPORATION,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-01795)

William G. Miossi argued the cause for the appellant. 

Mary M. Lenahan was with him on brief.

David M. Glanstein and Michael J. Barta were on brief for 

the amicus curiae American Maritime Officers in support of 

the appellant. 

Mark J. Murphy argued the cause and was on brief for the 

appellee.

Before: HENDERSON and TATEL, Circuit Judges, and 

EDWARDS, Senior Circuit Judge.
2

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Liberty 

Maritime Corporation (Liberty) appeals a district court order 

compelling it to arbitrate its ongoing labor dispute with District 

No. 1, Pacific Coast District, Marine Engineers’ Beneficial 

Association, AFL-CIO (MEBA or the Union). For years, 

Liberty and MEBA were parties to successive collective 

bargaining agreements (CBAs) under which Liberty 

exclusively employed MEBA members as supervisory 

personnel on several of its bulk-carrier ships. The parties’ 

relationship eventually soured, leading Liberty to replace its 

MEBA member-employees with those who belonged to a rival 

union. MEBA asserts that Liberty violated the parties’ CBA 

in doing so. In response, Liberty claims that the parties’ CBA 

had already expired before it switched unions. The parties’ 

dispute thus boiled down to a principal inquiry: When did 

their CBA expire?

The district court determined that under the CBA, this 

question had to be submitted to arbitration; it therefore granted 

MEBA’s request for an order compelling Liberty to arbitrate. 

See Dist. No. 1, Pac. Coast Dist., Marine Eng’rs’ Beneficial 

Ass’n, AFL-CIO v. Liberty Mar. Corp., 70 F. Supp. 3d 327, 350 

(D.D.C. 2014). On appeal, Liberty claims that the court erred 

in doing so. As a threshold matter, it claims that the court 

lacked subject matter jurisdiction over MEBA’s suit. On the 

merits, it argues that the contract-duration question is not 

arbitrable; it maintains that the court, not an arbitrator, must 

decide when the CBA expired. We believe Liberty is wrong 

on both counts and, accordingly, affirm the district court.
3

I.

Liberty is a maritime shipping company with a fleet of 

vessels engaged in global trade. For over two decades, 

Liberty had a series of CBAs with MEBA, a union 

representing, inter alia, officers and engineers working in the 

United States maritime industry, both at ports and on 

ocean-going vessels. The most recent was slated to expire in 

June 2010. Negotiations over a successor CBA stalled and, 

on August 25, 2010, Liberty and MEBA signed a 

Memorandum of Understanding (MOU) extending the CBA to 

September 30, 2011.1

 Specifically, the MOU provided that 

the then-current CBA, along with the provisions of the MOU 

itself, constituted a “New Agreement.”

Three provisions of the New Agreement are relevant. 

First, like its predecessors, the New Agreement provided that 

Liberty could employ only MEBA-represented engineers as 

supervisory personnel 2 aboard certain vessels. Second, the 

New Agreement included a grievance-and-arbitration 

provision establishing a detailed procedure to address disputes 

arising between Liberty and MEBA. Specifically, it required 

 1

 Although the CBA was to expire on June 15, 2010, it 

remained in effect per its terms until the MOU was signed, at which 

point the MOU applied retroactively to July 1, 2010. Thus, at no 

time from June 15 to August 25, 2010 did the CBA between Liberty 

and MEBA lapse.

2

 Under the most recent CBA, carried over into the New 

Agreement, the Liberty personnel to whom the agreement was 

applicable were deemed supervisors. As the district court noted, 

this meant that the protections of the National Labor Relations Act, 

29 U.S.C. §§ 151 et seq., did not generally apply to them; they could, 

however, secure and enforce terms and conditions of employment 

through a CBA, which is what they did here. See Liberty Mar., 70 

F. Supp. 3d at 334 n.2.
4

that “[a]ll disputes relating to the interpretation or performance 

of this Agreement shall be determined” by an arbitration board 

consisting of two MEBA representatives and two Liberty 

representatives. District No. 1, Pacific Coast District, 

M.E.B.A., Tanker Agreement § 2, at 10 (1986–1990) (Tanker 

Agreement) (emphasis added).

3

 In the event the board could 

not resolve the grievance by mutual agreement or majority 

vote, an agreed-upon arbitrator was authorized to render a 

final, binding decision. Third, and most relevant, the New 

Agreement included a “Duration of Agreement” provision as 

follows:

[The New Agreement will] continue in full 

force and effect until midnight, September 30, 

2011 and shall continue from year to year 

thereafter unless either the Company or the 

Union shall give written notice to the other of 

its desire to amend the agreement, which shall 

be given at least sixty (60) days, but no sooner 

than ninety (90) days, prior to the expiration 

date. In the event either the Company or the 

Union serves notice to amend the Agreement, 

the terms of the Agreement in effect at that time 

of the notice to amend shall continue in effect 

until mutual agreement on the proposed 

amendments or an impasse has been reached. 

Mem. of Understanding (MOU) § 1 (emphases added).

 3 Both the exclusivity and grievance-and-arbitration 

provisions were incorporated into the New Agreement by reference 

to the original CBA. Both parties submitted the 1986–1990 

“Tanker Agreement” to the district court to establish the CBA’s 

governing provisions, and we assume the provisions included therein 

were those applicable in 2010.
5

In March 2011, the parties began negotiating a successor 

to the New Agreement. Liberty’s primary issue was the 

Union’s pension plan. MEBA operated under a definedbenefit plan but Liberty insisted that the Union shift to a 

defined-contribution plan—a change MEBA opposed. 

Several work-rule changes were also on the table. On July 5, 

2011, Liberty notified MEBA that it intended to terminate the 

CBA on September 30, 2011, 4 and on July 8, MEBA 

responded by giving Liberty notice to amend, consistent with 

the Duration of Agreement provision. With MEBA’s notice 

to amend, the New Agreement’s expiration at midnight on 

September 30, 2011 then became contingent on the parties 

reaching “impasse” before that date.5 See MOU § 1.

 4

 Counsel for Liberty acknowledged at oral argument that, 

although the New Agreement did not contain a “notice of 

termination” provision, Liberty considered its notice of termination 

to fall within the “notice to amend” language in the MOU. See Oral 

Arg. Recording at 18:55–19:13.

5

 Although Liberty’s answer denied MEBA’s allegation that 

“[b]ased upon the Union’s timely notice to amend, the terms of the 

Agreement in effect at the time of the Notice continue to remain in 

effect pursuant to the terms of the parties’ MOU,” Answer ¶ 15, 

neither party seriously disputes that the contract’s expiration at 

midnight on September 30 was contingent upon impasse. Rather, 

counsel for Liberty acknowledged that “[t]he durational language 

does contain reference to impasse; that’s why . . . we believe the 

parties were at a bargaining impasse and no longer able to agree, thus 

the expiration on September 30.” Oral Arg. Recording at 13:52–

14:07. Moreover, Liberty maintains that the contract remained in 

effect until midnight on September 30 at the earliest; that is, even if 

the parties reached impasse before September 30, the contract did 

not expire until then. See Oral Arg. Recording at 14:09–14:22 (“We 

could not assert the contract expired September 27 because the 

durational clause . . . carried out [until] the end of the month.”).
6

Whether Liberty and MEBA in fact reached impasse 

before September 30, 2011 is the underlying dispute in this 

case; Liberty claims they did and MEBA claims they did not. 

The dispute arises from a flurry of last-minute negotiations in 

the four days leading up to September 30. On September 27, 

MEBA told Liberty it was not able to accept the 

defined-contribution pension plan Liberty demanded. Liberty 

expressed its regret that the parties were unable to reach a deal 

and began taking steps to bring on another union, the American 

Maritime Officers (AMO), to fill the MEBA positions 

beginning at 12:01a.m. on October 1. On September 28, 

however, MEBA reversed course; its president first contacted 

Liberty’s CEO by phone and then confirmed in writing that 

MEBA would accept the defined-contribution plan Liberty had 

proposed and invited Liberty back to the negotiating table to 

work out the remaining issues. On September 29, citing a lack 

of confidence in MEBA, Liberty rejected the invitation and 

maintained that the New Agreement was set to expire at 

midnight the following day, September 30, in accordance with 

its terms. 

Early on September 30, MEBA submitted a formal 

grievance to Liberty, using the grievance-and-arbitration 

procedure set out in the New Agreement. The grievance 

alleged that Liberty had violated the New Agreement in three 

ways: (1) by “failing and refusing to recognize MEBA as the 

sole representative of its licensed engineers and deck officers”; 

(2) by ordering “duly authorized representatives of the MEBA 

illegally removed from the Company vessels”; and (3) by 

authorizing “the assignment of the customary work and 

supervisory jurisdiction of the officers to be performed by 

other non-vessel and non-union personnel.” Ltr. from Bill 

Van Loo, MEBA Sec’y-Treasurer, to Philip Shapiro, Liberty 

President & CEO 1–2 (Sept. 30, 2011). In its grievance, 

MEBA demanded that Liberty cease and desist from these 
7

actions. Liberty did not immediately respond; rather, that 

afternoon, its CEO notified its supervisory personnel that 

MEBA and Liberty “were unable to agree on terms for a new 

. . . labor agreement.” Ltr. from Philip Shapiro, Liberty 

President & CEO, to Liberty Officers 1–2 (Sept. 30, 2011). 

At 12:01a.m. on October 1, 2011, MEBA members left 

Liberty’s vessels and AMO members came on board.

MEBA subsequently filed additional grievances related to 

the New Agreement, which grievances Liberty refused to 

arbitrate; MEBA then filed this action to compel Liberty to do 

so. The district court granted MEBA’s motion for summary 

judgment, holding, first, that it had jurisdiction to hear the suit, 

and second, that the question of impasse was arbitrable under 

the New Agreement’s broad arbitration provision. See 

Liberty Mar., 70 F. Supp. 3d at 350 (“This Court concludes that 

it properly may exercise subject matter jurisdiction over 

MEBA’s claims because they arise under section 301 of the 

LMRA. Moreover, whether the parties’ CBA was still in 

place at the time of all of the alleged violations is a question 

that arises under the durational provision of the contract, and is 

therefore a question for the arbitrator to decide.”). Liberty 

timely appealed.

II.

“We review a grant of summary judgment de novo.” 

Hairston v. Vance-Cooks, 773 F.3d 266, 271 (D.C. Cir. 2014). 

“Summary judgment will be granted when ‘there is no genuine 

dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.’ ” Id. (quoting FED. R. CIV. P.

56(a)). On appeal, Liberty contends that MEBA was not

entitled to judgment as a matter of law on the issue of 

arbitrability. Before reaching that issue, however, we must 
8

address Liberty’s challenge to the district court’s jurisdiction to 

compel arbitration in the first place. 

A. Subject Matter Jurisdiction

The National Labor Relations Act of 1935 (NLRA), 29 

U.S.C. §§ 151–169, establishes a federal regime for managing 

labor relations and generally authorizes the National Labor 

Relations Board (NLRB) to resolve disputes between labor 

organizations and employers. See generally Vaca v. Sipes, 

386 U.S. 171, 178–79 (1967). The United States Supreme 

Court has held that the NLRB’s jurisdiction is in general 

exclusive; that is, if a claim falls within the purview of the 

NLRB, state and federal courts are preempted from hearing it. 

See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 

245 (1959). As the Court put it, “[w]hen an activity is 

arguably subject to § 7 or § 8 of the [NLRA], the States as well 

as the federal courts must defer to the exclusive competence of 

the [NLRB].” Id. This rule is referred to as “Garmon

preemption.” Wash. Serv. Contractors Coal. v. District of 

Columbia, 54 F.3d 811, 815 (D.C. Cir. 1995).

The Labor Management Relations Act of 1947 (LMRA), 

29 U.S.C. §§ 141 et seq., “carve[s] out” an exception to the 

NLRB’s “exclusive jurisdiction.” Vaca, 386 U.S. at 179. 

Specifically, section 301(a) of the LMRA grants a federal 

district court jurisdiction over “[s]uits for violations of 

contracts between an employer and a labor organization.” 29 

U.S.C. § 185(a) (emphasis added). Thus, if a labor dispute is 

contractual, Garmon preemption does not apply; instead, the 

aggrieved party can sue on the contract in federal court.

Some claims, however, can be both contractual and 

representational; that is, a claim that alleges that conduct 

violates a collective bargaining agreement and also constitutes 

an unfair labor practice or otherwise violates the NLRA. 
9

Instead of forcing courts to shoehorn a hybrid claim into one 

category or the other, the Supreme Court has held that they 

retain jurisdiction to hear a contractual claim even if the claim 

is also representational. William E. Arnold Co. v. Carpenters 

Dist. Council, 417 U.S. 12, 16 (1974) (“When [conduct 

allegedly subject to the NLRA] also constitutes a breach of a 

collective-bargaining agreement, the [NLRB’s] authority ‘is 

not exclusive and does not destroy the jurisdiction of the courts 

in suits under § 301 [of the LMRA].’ ” (quoting Smith v. 

Evening News Ass’n, 371 U.S. 195, 197 (1962))). In that 

event, the “labor case [falls] within the concurrent jurisdiction 

of the NLRB and the federal courts.” Mack Trucks, Inc. v. 

Int’l Union, UAW, 856 F.2d 579, 585 (3d Cir. 1988); accord 

Mullins v. Kaiser Steel Corp., 642 F.2d 1302, 1316 (D.C. Cir. 

1980) (“[F]ederal courts have independent jurisdiction to 

decide cases alleging the breach of collective bargaining 

agreements, even though that very breach may also be an 

unfair labor practice.”), rev’d on other grounds, 455 U.S. 72 

(1982). 

In many circuits, a party’s mere assertion that a claim is 

contractual is not an automatic ticket to federal court; rather, 

the court must “examin[e] the major issues to be decided” and 

determine “whether they can be characterized as primarily 

representational or primarily contractual.” Local Union 204, 

Int’l Bhd. of Elec. Workers v. Iowa Elec. Light & Power Co., 

668 F.2d 413, 419 (8th Cir. 1982); accord, e.g., Paper, 

Allied-Indus., Chem. & Energy Workers Int’l Union v. Air 

Prods. & Chems., Inc., 300 F.3d 667, 675 (6th Cir. 2002) 

(“simply referring to the claim as a ‘breach of contract’ [is] 

insufficient for purposes of § 301 federal courts’ jurisdiction”; 

instead test is whether claim is “primarily representational”); 

Pace v. Honolulu Disposal Serv., Inc., 227 F.3d 1150, 1156 

(9th Cir. 2000) (“[An] end run around [the NLRA] . . . under 

the guise of contract interpretation . . . cannot be countenanced, 
10

and we have drawn the jurisdictional line by asking whether 

the major issues to be decided . . . can be characterized as 

primarily representational or primarily contractual.” (internal 

quotation marks and citations omitted) (ellipses in original)); 

United Food & Commercial Workers Union, Local 400 v. 

Shoppers Food Warehouse Corp., 35 F.3d 958, 961 (4th Cir. 

1994) (court is without jurisdiction if “a dispute is so primarily 

representational, that it falls solely within the Board’s 

jurisdiction” (internal quotation marks omitted)); Copps Food 

Ctr., Inc. v. United Food & Commercial Workers Union, Local 

73-A, No. 90-1905, 1991 WL 135508, at *2 (7th Cir. 1991) 

(unpublished) (“In answering the question of whether the 

federal court has jurisdiction to hear a contract-based dispute 

between a union and an employer, the court generally has to 

employ a difficult process of determining whether a particular 

dispute is primarily contractual—hence suited for § 301 

federal court jurisdiction—or representational, requiring 

preliminary NLRB determination of the matter.”); see Trs. of 

Colo. Statewide Iron Workers (ERECTOR) Joint 

Apprenticeship & Training Trust Fund v. A & P Steel, Inc., 

812 F.2d 1518, 1526 (10th Cir. 1987). If the court decides 

that the dispute is “primarily representational” even if framed 

as a breach of contract, the court defers to the NLRB’s 

exclusive jurisdiction. See, e.g., Int’l Bhd. of Elec. Workers, 

Local 71 v. Trafftech, Inc., 461 F.3d 690, 695–97 (6th Cir. 

2006).

Although we have not decided the parameters of a claim 

that is “primarily representational” as opposed to “primarily 

contractual,” several of our sister circuits have done so. The 

Sixth Circuit has “identified two scenarios in which a dispute 

will be treated as ‘primarily representational.’ ” DiPonio 

Constr. Co., Inc. v. Int’l Union of Bricklayers & Allied 

Craftworkers, Local 9, 687 F.3d 744, 750 (6th Cir. 2012) 

(quoting Trafftech, 461 F.3d at 695). The first occurs if the 
11

NLRB “has already exercised jurisdiction over [the] matter and 

is either considering . . . or has already decided” the claim. Id.

(quoting Trafftech, 461 F.3d at 695); see also Int’l Bhd. of 

Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & 

Helpers, AFL-CIO v. Olympic Plating Indus., Inc., 870 F.2d 

1085, 1089 (6th Cir. 1989) (“In such cases where the Board’s 

resolution of non-contractual issues could also resolve the 

controversial breach of contract claims brought under § 301, 

the federal courts should decline to exercise jurisdiction over 

the contractual allegations.”). The second is “where the issue 

is an initial decision in the representation area,” DiPonio, 687 

F.3d at 750 (quoting Trafftech, 461 F.3d at 695); for example, 

where the court must decide whether the union was properly 

elected by the employees, id. (citing Amalgamated Clothing & 

Textile Workers Union v. Facetglas, Inc., 845 F.2d 1250, 1253 

(4th Cir. 1988)). At least one circuit contemplates a third 

scenario: a case in which the “center of the dispute” is a 

representational question, such as whether workers are 

“employees” or “supervisors” under the NLRA, but the NLRB 

has not yet taken up “the representation question at issue.” 

Morello v. Fed. Barge Lines, Inc., 746 F.2d 1347, 1349–50 

(8th Cir. 1984) (internal quotation marks omitted). 

Here, MEBA asserts that the district court’s jurisdiction 

arises under section 301 of the LMRA. It argues that Liberty 

violated the parties’ CBA and that its suit alleges a “violation 

of [the] contract[]” as section 301 requires. See 29 U.S.C. 

§ 185(a). Liberty challenged that assertion in district court 

and does so again on appeal. Although somewhat garbled, 

Liberty’s argument that the court lacks jurisdiction under 

section 301—or, at the very least, lacks jurisdiction unless the 

court determines the disputed impasse question—appears to be 

two-fold. 
12

First, Liberty claims the existence of impasse vel non is a 

jurisdictional fact. As Liberty apparently sees it, if the parties 

did not reach impasse, the court had jurisdiction of the claim 

under section 3016 but, if the parties did reach impasse, the 

court did not.7

 Liberty faults the district court for construing 

its jurisdictional challenge as a facial attack and for assuming

MEBA’s view that impasse was not reached in determining its

jurisdiction under section 301; according to Liberty, the district 

court should have first resolved whether or not impasse 

occurred, a fact it dubs “jurisdictional.” If the court had 

 6

 Liberty admits it employed AMO-represented officers and 

engineers beginning at 12:01a.m. on October 1, 2011. If the parties’ 

CBA remained in effect past midnight on September 30, as MEBA 

contends, there can be no question that MEBA’s suit would be for a 

violation of the contract and the court would have jurisdiction under 

section 301.

7

 Liberty starts with the premise that a court cannot exercise 

section 301 jurisdiction of a claim arising from conduct that took 

place after the contract expired. See, e.g., Derrico v. Sheehan 

Emergency Hosp., 844 F.2d 22, 25 (2d Cir. 1988) (“When a 

complaint alleges a claim based on events occurring after the 

expiration of a collective bargaining agreement, courts have held that 

section 301 cannot provide a basis for jurisdiction.”). Liberty 

maintains that it abided by the contract until midnight on September 

30 and that the conduct MEBA complains of and seeks to arbitrate in 

this suit—namely, Liberty’s replacing MEBA workers with AMO 

workers—occurred after that time. In Liberty’s view, if the parties 

reached impasse before September 30, then (1) the contract expired 

at midnight; (2) the conduct MEBA seeks to arbitrate occurred after 

the contract expired; and therefore (3) the court cannot exercise 

jurisdiction over the “contractual” claim because it did not in fact

arise under the parties’ contract at all. Thus, Liberty concludes, for 

the court to determine if it has section 301 jurisdiction, it must 

necessarily determine whether the parties reached impasse.
13

resolved the question in Liberty’s favor (that is, impasse 

occurred), then the court would have been obligated to dismiss 

the case for lack of jurisdiction. Although a court must 

generally resolve a disputed jurisdictional fact if a so-called 

factual attack on the court’s subject matter jurisdiction is made, 

see, e.g., Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 

(D.C. Cir. 1992), impasse vel non is not a jurisdictional fact. 

Section 301 of the LMRA grants the district court jurisdiction 

of “[s]uits for violation of contracts between an employer and a 

labor organization.” 29 U.S.C. § 185(a). For a district court 

to exercise jurisdiction, then, there need not be a valid contract 

but only a suit for violation of a contract. The existence of the 

contract is instead an element of the cause of action. See 

Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1005–06 (6th Cir. 

2009) (section 301’s “contract requirement is 

non-jurisdictional” and instead constitutes “an element of a 

cause of action”); Pittsburgh Mack Sales & Serv., Inc. v. Int’l 

Union of Operating Eng’rs, Local Union No. 66, 580 F.3d 185, 

189 (3d Cir. 2009) (“It is unnecessary for us to resolve whether 

or not the CBAs were terminated [before the alleged breach] 

because . . . the existence of a contract is not a jurisdictional 

element of a section 301 claim.”). See generally Arbaugh v.

Y & H Corp., 546 U.S. 500 (2006) (court must determine 

whether statutory requirement is jurisdictional or instead 

describes elements of cause of action).

Second, Liberty attempts to argue that even if MEBA’s 

suit is nominally contractual, it is in fact “primarily 

representational” because MEBA’s goal in bringing the suit is 

to replace AMO as the bargaining representative of the officers 

and engineers aboard Liberty vessels. According to Liberty, 

“MEBA’s objective in this case is to displace its rival union . . . 

and establish MEBA’s representational rights over the 

supervisors working aboard Liberty’s ships”—action that 
14

violates section 8 of the NLRA and thus triggers the NLRB’s 

jurisdiction. Appellant’s Br. at 34.

Liberty relies on the Eighth Circuit’s opinion in Morello v. 

Federal Barge Lines, Inc. to support its argument. 746 F.2d 

1347. There, two employers had CBAs with one union, which 

CBAs were set to expire on a date certain provided one party 

notified the other of its intent to terminate. Id. at 1348. The 

employers provided the required termination notice and the 

union responded by attempting to begin negotiations. Id. 

The employers ignored the union on the ground that they had 

no duty to negotiate because the union members were 

“supervisors” rather than “employees” under the CBAs’ terms. 

Id. The union sued, alleging that the employers had breached 

the CBAs by refusing to negotiate; specifically, it argued that 

the employers did in fact have a duty to negotiate because the 

union members were employees, not supervisors. Id. at 

1348–49. Although the case was not pending before the 

NLRB, the Eighth Circuit held that the question at the center of

the dispute was whether the union members were supervisors 

or employees—and that question was “one of representation,” 

not contract. Id. at 1349. Accordingly, it held that the 

district court lacked jurisdiction. Id. at 1351.

Liberty claims that here, as in Morello, the center of the 

dispute is a representational question—which union, MEBA or 

AMO, has the right to represent Liberty’s supervisors. 

According to Liberty, the court “cannot reach the central issues 

in MEBA’s complaint and grant relief without coercing 

Liberty to accept MEBA-represented supervisors.” 

Appellant’s Br. at 39. Because such relief involves a 

“representational issue” and would, according to Liberty, 

violate the NLRA, Liberty argues that the claim is “primarily 

representational.”
15

We disagree. Liberty’s argument on this point suffers 

from a fatal flaw: it conflates the type of claim with the effect 

of a claim’s enforcement. Garmon preemption is designed to 

prevent a court from deciding a claim that can only be 

characterized as representational; to resolve such a claim, a 

court must decide a representational question. Morello is a 

perfect example. To resolve the dispute, the court would have 

had to decide whether certain individuals were “employees” or 

“supervisors” under the NLRA. Morello, 746 F.2d at 1349. 

The court correctly ruled that, even if framed as a “contractual” 

dispute, that question is one squarely within the NLRB’s 

province. See id.

On the other hand, resolving MEBA’s suit requires 

deciding plainly contractual matters—what constitutes 

“impasse” and whether Liberty’s conduct breached the parties’ 

agreement. The decision may ultimately have a 

representational effect in that MEBA could, under the terms of 

the contract, be reinstated as the representative of Liberty’s 

officers and engineers. But that effect results from the 

enforcement of the CBA, not from the resolution of any 

representational question. Thus, Morello offers Liberty little 

support.

Moreover, MEBA’s suit does not fit into the other two 

categories of “primarily representational” claims recognized 

by other circuits. The case is not currently pending before the 

NLRB, see DiPonio, 687 F.3d at 750; in fact, the opposite is 

true. Liberty initially filed an unfair labor practice charge 

with the NLRB, claiming that MEBA’s lawsuit to compel 

arbitration violated the NLRA, but the NLRB’s Office of the 

General Counsel (OGC) recommended dismissal because it 

involved a “bona fide contractual issue,” Marine Eng’rs 

Beneficial Ass’n (Liberty Mar.), Case 05-CB-077851, NLRB 

Advice Mem. at 6, Aug. 31, 2012; Liberty subsequently 
16

withdrew its charge. In addition, there is no “initial” 

representational question at issue, see DiPonio, 687 F.3d at 

750; in fact, no representational question is presented at all. 

Rather, the dispute boils down to a contractual one—whether 

the New Agreement remained in effect as of 12:01a.m. on 

October 1 and whether Liberty violated it. Accordingly, we 

conclude that the district court properly exercised its 

jurisdiction under section 301 of the LMRA.

B. Arbitration

Having concluded that the district court had jurisdiction to 

compel arbitration generally, we turn to the specific merits 

inquiry in this case: is when the contract expired—i.e., whether 

the parties reached impasse—an arbitrable issue? The district 

court answered in the affirmative, see Liberty Mar., 70 F. 

Supp. 3d at 350, and we agree. 

The Supreme Court has set out “the proper framework for 

deciding when disputes are arbitrable.” Granite Rock Co. v. 

Int’l Bhd. of Teamsters, 561 U.S. 287, 296 (2010). “Under 

that framework, a court may order arbitration of a particular 

dispute only where the court is satisfied that the parties agreed 

to arbitrate that dispute.” Id. (emphasis in original); see also 

AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 

648 (1986) (“[A]rbitration is a matter of contract and a party 

cannot be required to submit to arbitration any dispute which 

he has not agreed so to submit.” (quoting United Steelworkers 

of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 

(1960))). 

In considering how to apply this framework, we have used 

“[a] trichotomy among the disputes that arise in arbitrability 

cases.” Nat’l R.R. Passenger Corp. v. Bos. & Me. Corp., 850 

F.2d 756, 761 (D.C. Cir. 1988). There are (1) “disputes over 

the formation of an agreement to arbitrate”; (2) “disputes over 
17

the breadth of an arbitration clause, where the parties disagree 

over whether a certain issue falls within or without the subject 

matter coverage of an undoubted agreement to arbitrate”; and 

(3) disputes that “relate[] to the length, rather than the breadth, 

of an arbitration clause.” Id. at 761. In other words, three 

types of arbitrability disputes typically arise: (1) formation 

disputes; (2) breadth disputes; and (3) duration disputes. 

It is settled that a formation dispute is “generally for courts 

to decide.” Granite Rock, 561 U.S. at 296; Nat’l R.R., 850 

F.2d at 761 (“[I]f the parties disagree as to whether they ever 

entered into any arbitration agreement at all, the court must 

resolve that dispute.”). Similarly, a breadth dispute is 

“generally for the courts to determine” but “parties may agree 

to arbitrate questions of breadth” so long as they do so plainly. 

Nat’l R.R., 850 F.2d at 761. 

A duration dispute is a different animal. We have 

articulated a rather detailed set of “general rules” for 

“resolving disputes . . . over the expiration or termination of an 

arbitration clause”:

If the arbitration clause is a narrow one, 

covering only specified types of disputes . . . , 

then we must presume that the parties did not

intend for disputes over contract duration to be 

referred to arbitration. In such a case, the court 

will decide the question of duration unless the 

party seeking arbitration makes a clear showing 

that the contracting parties intended such 

disputes to be arbitrated. Faced with a 

somewhat broader arbitration clause, however, 

such as one providing generally (perhaps with 

certain specified exceptions) that disputes 

“arising under” or “concerning” the contract are 
18

to be arbitrated, we will presume that disputes 

over the termination or expiration of the 

contract should be submitted to arbitration. Of 

course, this presumption also attaches where 

the arbitration clause is broader still, such as 

one requiring arbitration of “any grievance 

affecting the mutual relations of the parties.”

Id. at 762 (citation omitted) (emphases added). The 

presumption, however, is not absolute.

[E]ven in cases involving very broad arbitration 

clauses, the presumption in favor of arbitrating 

disputes over contract duration can be 

overcome by a clear showing that the parties 

intended for the underlying contract to expire, 

or separately agreed to terminate it, before the 

relevant dispute arose. For example, if a 

contract provides that “all disputes between the 

parties shall be arbitrated,” but with equal 

clarity provides that it will expire on a date 

certain, then any dispute over whether the 

contract actually expired or was extended by 

the parties must be decided by the court rather 

than by the arbitrator. 

Id. at 762–63 (emphasis added).

Liberty argues that the dispute in this case is more akin to a 

formation dispute than a duration dispute; accordingly, it 

asserts that, before compelling arbitration, the court must 

decide whether the New Agreement was “in existence” at the 

time MEBA filed its grievances. Appellant’s Br. 50. In 

support of this argument, it relies heavily on the Supreme 

Court’s statement in Granite Rock that if “any issue . . . calls 

into question the formation or applicability of the specific 
19

arbitration clause that a party seeks to have a court enforce,” 

the district court must resolve that issue “[t]o satisfy itself” that 

the parties did indeed intend to arbitrate. 561 U.S. at 297. 

According to Liberty, its claim that the New Agreement 

expired “calls into question the . . . applicability” of the 

arbitration clause. See id.

Liberty also relies on Granite Rock’s analogous facts. In 

that case, a union and an employer were parties to a CBA that 

expired. Id. at 292. When the parties reached impasse in 

negotiating a new CBA, the union went on strike. Id. 

Negotiations continued and eventually the parties reached 

agreement on a new CBA that included both an arbitration 

provision and an anti-strike provision. Id. at 292–93. The 

new CBA did not address the employer’s damages arising from 

the strike and the parties attempted to reach a separate 

“back-to-work” agreement holding workers harmless as to 

those damages. Id. at 293. They were unsuccessful, the 

union remained on strike and the employer sued the union for 

damages for violating the anti-strike provision of the new 

CBA. Id. at 293–94. The parties disputed the new CBA’s 

ratification date. Id. at 294–95. The union argued that the 

ratification issue should be resolved via arbitration. Id. at 295. 

The Supreme Court disagreed, holding that ratification 

determined the date on which the parties agreed to begin 

arbitrating disputes. Id. at 303–05. The district court, not the 

arbitrator, was required to decide the question. Id. at 304.

Liberty’s attempt to analogize its case to Granite Rock

rings hollow. Granite Rock falls squarely within the 

formation-dispute category of the “trichotomy” we identified 

in National Railroad, 850 F.2d at 761. The issue was when

the contract went into effect—a formation issue that, in that 

case, was central to determining whether the parties had agreed 

to arbitrate any dispute. Granite Rock, 561 U.S. at 303–05. 
20

This case has nothing to do with formation. Both parties 

acknowledge they entered into an enforceable CBA. It thus 

falls into a different category from Granite Rock—it is without 

doubt a dispute over the agreement’s duration. Liberty 

contends that the New Agreement expired at midnight on 

September 30, 2011; MEBA contends no impasse was reached 

and it remained in effect. As a result, National Railroad 

instructs that who decides the duration question—the court or 

an arbitrator—depends upon the breadth of the arbitration 

provision. 850 F.2d at 762–63 (“[W]e believe that the breadth 

of the arbitration clause does bear on the question of who must 

determine its length.”). If the arbitration provision is broad, 

the court presumes that the parties intended to arbitrate the 

duration dispute; and unless a party can overcome the 

presumption with “a clear showing” that the parties intended 

the contract to expire, the duration question is reserved to the 

arbitrator. Id. at 763. Conversely, if the arbitration provision 

is narrow, and thus does not appear to cover duration, the court 

determines whether the contract remained in effect. Id.

Here, the arbitration clause is quite broad: “All disputes 

relating to the interpretation or performance of this Agreement 

shall be determined in accordance with the provisions in this 

[Arbitration-and-Grievance Procedure] Section.” Tanker 

Agreement, at 10. “All disputes relating to the interpretation 

. . . of this Agreement,” see id., includes a dispute as to the 

interpretation of the duration provision—including the word 

“impasse.” As the district court pointed out, “[e]ven if this 

Court were to read the instant arbitration clause to suggest that 

the parties only intended to arbitrate issues of contract 

interpretation . . . , the question of whether the parties’ 

otherwise valid agreement expired is precisely such an 

issue—it requires interpretation of the agreement’s duration 

provision.” Liberty Mar., 70 F. Supp. 3d at 347 (emphasis in 

original). As the court further noted, the New Agreement’s 
21

arbitration clause is similar to the “broad” arbitration clause to 

which the Supreme Court found the presumption of 

arbitrability “particularly applicable.” Id. at 348 (quoting 

AT&T Techs., 475 U.S. at 650). As a result, unless Liberty 

can make a “clear showing” that the parties intended the New 

Agreement to expire, the duration question is for the arbitrator, 

not the court.

This Liberty fails to do. The duration provision does not 

with abundant “clarity” provide a fixed expiration date, see 

Nat’l R.R., 850 F.2d at 763; rather, the September 30, 2011 

deadline gives way as soon as one party gives notice of its 

intent to amend the agreement. At that point, the New 

Agreement remains in effect until the parties reach “impasse.” 

See MOU § 1. Although Liberty has a plausible argument 

that the parties reached impasse, MEBA has an equally 

plausible argument that they did not. Because expiration 

turns on impasse—and Liberty cannot make a clear showing 

that impasse occurred—the issue is plainly arbitrable under the 

terms of the CBA.

For the foregoing reasons, the judgment of the district 

court is affirmed.

So ordered.