FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INTERNATIONAL BROTHERHOOD OF 

ELECTRICAL WORKERS, AFL-CIO

LOCAL 1245, No. 06-16189

Petitioner-Appellee, D.C. No.  v. CV-06-00677-WBS

CITIZENS TELECOMMUNICATIONS CO. OPINION

OF CALIFORNIA,

Respondent-Appellant. 

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, District Judge, Presiding

Argued and Submitted

June 12, 2008—San Francisco, California

Filed December 5, 2008

Before: Mary M. Schroeder, John M. Walker, Jr.,1 and N.

Randy Smith, Circuit Judges.

Opinion by Judge Walker

1The Honorable John M. Walker, Jr., Senior Circuit Judge of the United

States Court of Appeals for the Second Circuit, sitting by designation. 

16039
COUNSEL

Thomas M. Beck, at argument, and Peter E. Davids, on the

briefs, Jones Day, San Francisco, California, for appellant Citizens Telecommunications Company of California. 

Shawn C. Groff, at argument, and Lynn Rossman Faris, on

the briefs, Leonard Carder, LLP, Oakland, California, for

appellee International Brotherhood of Electrical Workers,

AFL-CIO Local 1245. 

IBEW v. CITIZENS TELECOMMUNICATIONS CO. 16041
OPINION

WALKER, Circuit Judge: 

Appellant Citizens Telecommunications Co. (Citizens) and

Appellee International Brotherhood of Electrical Workers,

AFL-CIO Local 1245 (IBEW) are parties to a Collective Bargaining Agreement (CBA) in effect from October 2004

through September 2008. IBEW sought an order compelling

Citizens to arbitrate IBEW’s claim that Citizens had violated

the CBA by reducing employee retirement benefits. The district court granted the motion to compel arbitration and Citizens appealed, arguing that IBEW cannot arbitrate its

grievance without first obtaining consent from the retirees

currently eligible for benefits under the CBA. We affirm. 

I. Background

Article 24.1 of the CBA provides that the “Citizens Utilities

Medical Plan,” which includes the “Retiree Medical” plan,

“shall be provided for all eligible employees in accordance

with the terms of said plans.” This article further provides that

Citizens may “make changes” to the plan, provided that, inter

alia, “[t]he changes do not reduce the overall level of benefits.” Article 24.1 also contains the following arbitration provision:

In the event that any dispute arises as to whether the

proposed change does or does not reduce the overall

level of benefits the dispute will be referred to expedited arbitration without exhaustion of the grievance

procedure.

In November 2005, Citizens informed IBEW, the exclusive

bargaining agent for a group of Citizens employees, that it

was making changes to its medical plan that would affect both

current employees and retirees. In particular, Citizens purported to cancel retiree medical benefits, beginning in January

16042 IBEW v. CITIZENS TELECOMMUNICATIONS CO.
2006, for any “medicare eligible” retiree. In response, IBEW

filed two grievances. The first, Grievance 5-07, sought relief

from Citizens’ decision to increase the medical plan premiums paid by active employees. The second, Grievance 5-08,

alleged that Citizens “unilaterally made changes to the retiree

medical plan” and therefore violated the CBA because those

changes would “reduce the overall level of benefit to the

retiree plan.” In this grievance, IBEW requested that Citizens

“rescind any and all unilateral retiree medical benefit reductions and reimburse retirees appropriately and retroactively.”

This grievance also requested “expedited arbitration” pursuant

to Article 24.1 of the CBA. 

Citizens, while agreeing to arbitrate Grievance 5-07,

refused to arbitrate Grievance 5-08. In a letter from Citizens’

Associate General Counsel to IBEW’s Senior Assistant Business Manager, Citizens contended that IBEW was “attempting

to grieve issues related to current retirees” who were “formerly represented by the Union.” Because the union did not

currently represent those employees, and because, Citizens

asserted, “the Union is not raising an issue covered by the current CBA between the parties,” Citizens claimed that Grievance 5-08 was not arbitrable under the CBA. 

In April 2006, IBEW sued Citizens in the Eastern District

of California seeking to compel arbitration. In opposition, Citizens did not contend that the grievance was beyond the scope

of the arbitration provision. Instead, Citizens argued that

IBEW “lacks standing to represent the interests of former employees who are no longer members of the union.”

Int’l Bhd. of Elec. Workers v. Citizens Telecomms. Co. of Cal.

(IBEW I), No. CIV S-06-0677, slip op. at 4 (E.D. Cal. May

17, 2006). The district court observed that “the bulk of authority addressing the issue” has endorsed a rule requiring retiree

consent in order for the union to represent the interests of

retirees. Id. at 8. The district court ultimately rejected this rule

as “inconsistent with the Ninth Circuit’s understanding of the

role and purpose of unions,” and out of step with “accepted

IBEW v. CITIZENS TELECOMMUNICATIONS CO. 16043
principles of contract law.” Id. at 9. The district court granted

IBEW’s motion to compel arbitration of Grievance 5-08 over

the cancellation of certain medical benefits, and Citizens filed

this appeal. 

II. Discussion 

The district court properly found subject matter jurisdiction

under 29 U.S.C. § 185(a), and we have appellate jurisdiction

under 28 U.S.C. § 1291. “The district court’s decision to grant

or deny a motion to compel arbitration is reviewed de novo.”

Bushley v. Credit Suisse First Boston, 360 F.3d 1149, 1152

(9th Cir. 2004). 

A. The CBA Requires Arbitration 

Citizens does not dispute that Grievance 5-08 raises an

issue that is subject to the expedited arbitration procedures of

the CBA. As a general rule, a party’s duty to arbitrate depends

on contract law:

[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. Yet, to be consistent with congressional policy in favor of settlement of disputes by the parties through the

machinery of arbitration, the judicial inquiry under

§ 301 must be strictly confined to the question

whether the reluctant party did agree to arbitrate the

grievance . . . . An order to arbitrate the particular

grievance should not be denied unless it may be said

with positive assurance that the arbitration clause is

not susceptible of an interpretation that covers the

asserted dispute. Doubts should be resolved in favor

of coverage. 

United Steelworkers v. Warrior & Gulf Navigation Co., 363

U.S. 574, 582-83 (1960) (emphasis added). In Grievance 5-

16044 IBEW v. CITIZENS TELECOMMUNICATIONS CO.
08, IBEW contends that Citizens’ new policy reduces the

overall level of benefits in contravention of Article 24.1 of the

CBA. Citizens contends that it does not. This is the issue

IBEW seeks to submit to arbitration, and the plain language

of the CBA imposes on Citizens a duty to arbitrate. Citizens

did not contest the existence of this duty before the district

court, IBEW I, slip op. at 3-4 (“respondent does not contend

that the aforementioned modifications . . . do not . . . trigger

the [Article 24.1] duty to arbitrate”), and it does not do so

here. Instead, Citizens contends that the district court erred in

not “requiring a union to obtain the consent of affected retirees before arbitrating claims concerning their benefits,” and

Citizens urges this court to join the Fifth,2 Sixth, and Seventh

Circuits in requiring the union to do so. Appellant’s Br. at 2.

In advancing this position, Citizens relies primarily on Rossetto v. Pabst Brewing Co., 128 F.3d 538 (7th Cir. 1997), and

Cleveland Electric Illuminating Co. v. Utility Works Union

Local 270, 440 F.3d 809 (6th Cir. 2006). While these cases

do not bind the Ninth Circuit, they are plainly relevant to our

consideration and thus merit further examination. 

B. Rossetto and Cleveland Electric

In Rossetto, a collective bargaining agreement between

Pabst (the employer) and District 10 (the union) provided certain benefits to retirees. In June 1995, when the CBA expired,

Pabst proposed eliminating the retiree benefits from a successor agreement to that CBA, and District 10 rejected the proposal. In August 1996—a year later—Pabst informed retirees

(but not District 10) that it would be terminating the same

2Citizens cites International Ass’n of Machinists & Aerospace Workers

Local Lodge 2121 v. Goodrich Corp., 410 F.3d 204, 213 (5th Cir. 2005),

in support of its contention that the Fifth Circuit has endorsed the rule that

Citizens now urges us to adopt. In Goodrich, however, the Fifth Circuit

found it unnecessary to determine whether a union’s failure to obtain

retiree consent deprived it of standing to represent retirees in a federal suit

to compel arbitration, because the union in that case had obtained consent.

Id. at 212. 

IBEW v. CITIZENS TELECOMMUNICATIONS CO. 16045
retiree benefits as of September 1, 1996. On August 12, after

learning of Pabst’s actions, District 10 filed a grievance alleging that the unilateral termination of retiree benefits breached

the CBA. In September 1996, a group of retired Pabst

employees also sued Pabst in federal court seeking reinstatement of the benefits on the grounds that Pabst’s termination

action violated the CBA and the Employee Retirement

Income Security Act (ERISA). In November 1996, Pabst reinstated the retiree benefits and agreed to extend the expired

CBA through January 31, 1997. A day before the CBA was

again set to expire, District 10 notified Pabst of its desire to

arbitrate its August grievance, pursuant to a provision of the

CBA providing for arbitration of certain grievances. The combined effect of the notice and the expiring CBA was that the

arbitration would pertain only to employees who had already

retired, and not to current employees. Pabst refused to arbitrate, and the federal plaintiffs amended their complaint to

request an order compelling arbitration of the grievance. The

district court granted the motion to compel, and Pabst

appealed. See Rossetto, 128 F.3d at 538-39. 

At oral argument, the Seventh Circuit panel sua sponte

raised “a critical threshold question—whether District 10 has

standing to pursue the retirees’ grievance to arbitration.” Id.

at 539. The court observed that, in general, “a union has

standing under Article III of the Constitution to arbitrate the

meaning of a collective bargaining agreement that grants

rights to third parties (in this case, retirees) simply by virtue

of the fact that the union is a party to the contract,” and that

when the union and employer arbitrate, the union serves as

the “grievants’ representative.” Id. (emphasis added). But

because District 10 was not the “exclusive bargaining representative” of the retiree plaintiffs, “any claims for benefits

here belong to the retirees individually, and the retirees may

deal directly with Pabst in pursuing such claims.” Id. at 540.

The Seventh Circuit further opined that any arbitration involving retirement benefits would bind the retirees: “If District 10

loses in arbitration, the retirees lose, period.” Id. As a result,

16046 IBEW v. CITIZENS TELECOMMUNICATIONS CO.
“any right District 10 has to pursue arbitration of the retirees’

grievance must come from the retirees.” Id. Because District

10 did not have the consent of the retirees, the court concluded that “District 10 lacks standing to bring the retirees’

grievance to arbitration,” and it dismissed the appeal for lack

of jurisdiction. Id. at 541. 

While the benefit changes in Rossetto only affected

employees that had retired, in Cleveland Electric, the

employer (Cleveland Electric) made a number of changes to

the health care benefits of both active and retired members of

the union. Cleveland Elec., 440 F.3d at 811. An arbitrator

decided that “since the Union and Cleveland Electric agreed

to include retirees’ benefits in the CBA, the Union had standing to seek arbitration on behalf of the retirees for benefits

that were included in the CBA.” Id. Cleveland Electric

brought suit to have the decision vacated, and the district

court held, in relevant part, “that the retirees, unlike the active

employees, had individual contractual rights and that they

could not be forced to arbitrate their grievance,” and therefore

“the retirees must consent to the Union’s representation.” Id.

at 811-12. The Sixth Circuit affirmed, holding that “[i]n order

to arbitrate a retiree’s benefits, the Union must obtain the consent of the retiree. It will be the arbitrator’s responsibility to

establish the nature and extent of the consent requirement.”

Id. at 818. Relying on Rossetto, the court noted “at least two

dangers in failing to require” consent: the danger that the

retirees could lose their right to pursue claims directly if the

union loses in arbitration, and the danger that “Cleveland

Electric could be faced with numerous retirees’ claims and

lawsuits if a determination is made that the Union was not

authorized to act on the retirees’ behalf.” Id. at 817. 

C. The Proposed Consent Rule

Citizens contends that these cases establish a rule that bars

unions from arbitrating disputes “relating to retiree benefits”

without the consent of affected retirees. Appellant’s Br. at 8.

IBEW v. CITIZENS TELECOMMUNICATIONS CO. 16047
While we believe that this is a plausible reading of Rossetto

and Cleveland Electric, we decline to adopt such a broad rule.

The rule that Citizens would have us apply here ignores the

fact that reductions in retiree benefits may also affect current

employees who are undisputedly still represented by the union

under an extant CBA, and it is based on unsound assumptions

about the preclusive effect of arbitration involving retiree benefits. 

1. Citizens’s Action Affects Current Employees

[1] First, the consent rule that Citizens divines from Rossetto and Cleveland Electric fails to account for the fact that

an impermissible reduction in retirement benefits under the

CBA affects current employees as well as retirees. This was

not a problem in Rossetto because the dispute implicated only

the benefits of employees who had retired. 

[2] As the Supreme Court has pointed out, “the future

retirement benefits of active workers are part and parcel of

their overall compensation.” Allied Chem. & Alkali Workers

Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S.

157, 180 (1971). Thus, when IBEW seeks an arbitration order

to determine whether Citizens has impermissibly reduced

retirement benefits, it does so, at least in part, on behalf of

current employees. After all, in order for a current employee

to make a prudent decision about when to retire, accurate

information about his entitlement to retirement benefits is crucial. 

[3] Citizens, citing Allied Chemical, contends that this dispute does not involve the benefits of current employees

because any effect on a current employee’s benefits is only

“speculative.” Appellant’s Reply Br. at 2. We disagree. This

argument distorts Allied Chemical beyond recognition—in

that case, as noted above, the Supreme Court observed that

future retiree benefits were “part and parcel” of an active

employee’s compensation. The only thing that was specula16048 IBEW v. CITIZENS TELECOMMUNICATIONS CO.
tive in Allied Chemical was the advantage gained by active

workers by including retirees in their bargaining unit when

negotiating a CBA. 404 U.S. at 180. Allied Chemical does not

suggest that the actual retirement benefits contractually promised to an active employee are speculative and therefore an

inappropriate subject of arbitration. The CBA here imposes a

duty to arbitrate a disputed reduction in benefits, and nothing

in Allied Chemical suggests that IBEW cannot enforce this

duty because current workers are not yet eligible to receive

the contested benefits. 

2. Preclusive Effect of Arbitration on Retirees

In addition, we think the consent rule suggested by appellant relies on unsound assumptions about the preclusive effect

of arbitration involving retiree benefits. The decision in Rossetto simply assumed that any arbitration of retiree benefits

between a union and an employer would bind current retirees.

See 128 F.3d at 540 (“If District 10 loses in arbitration, the

retirees lose, period.”). Thus, the Rossetto court required the

retirees’ consent because that court felt it unjust to bind them

without it. 

[4] Even if we assume that it is proper to base the outcome

of an initial proceeding (the motion to compel arbitration) on

the preclusive effect of a second proceeding (the arbitration)

upon a hypothetical third proceeding (the suit by the individual retiree), the underlying assumption of preclusion does not

withstand scrutiny. First, we will not assume that either the

arbitration in Rossetto or the arbitration contemplated here

would preclude subsequent suits by individual retirees. The

one circuit court that we know to have reached the issue in

similar circumstances decided that a union’s pursuit of arbitration, ostensibly undertaken on behalf of retirees, did not

preclude a later individual claim arising from the same set of

facts. See Meza v. Gen. Battery Corp., 908 F.2d 1262, 1273

(5th Cir. 1990). While we cannot definitively say that there

are no circumstances in which a union’s arbitration would

IBEW v. CITIZENS TELECOMMUNICATIONS CO. 16049
have some preclusive effect on a subsequent suit by a former

member no longer represented by the union, the result in

Meza certainly suggests that such preclusion would occur

very rarely, if at all; it seems extremely unlikely that a court

would apply claim preclusion against an individual retiree

based on an arbitration to which that retiree was not a party,

nor represented by a party. Thus, we disagree with the Rossetto court’s conclusion that allowing arbitration concerning

retiree benefits without consent of the retirees would “hijack

the retirees’ right to pursue their statutory claims by forcing

arbitration.” 128 F.3d at 541. 

The Cleveland Electric court discussed a second harm that

it felt justified imposing a consent rule: the harm to the

employer of having to relitigate a favorable arbitral outcome

in suits by individual retirees. (Presumably, an unfavorable

arbitral outcome would preclude further resistance by the

employer in individual action under principles of issue preclusion.) This relitigation possibility led the Cleveland Electric

court to require the union to obtain retiree consent, and

thereby bind the retirees to the result of the arbitration. The

court reasoned that retirees would otherwise get a second bite

at the apple in an individual proceeding even if the employer

prevailed against the union in arbitration. See 440 F.3d at 817.

[5] This harm is also insufficient to justify the creation of

a “consent rule” that prevents the union from arbitrating an

otherwise arbitrable grievance. The fact that Citizens may be

exposed to allegedly duplicative proceedings is a result of its

own bargaining. We will not write into the CBA a consent

requirement provision for which Citizens failed to bargain. 

D. IBEW’s Standing in Federal Court

[6] Citizens also contends that IBEW lacks standing to

compel arbitration of retirees’ claims because it has not demonstrated “injury in fact” and because it cannot assert the

16050 IBEW v. CITIZENS TELECOMMUNICATIONS CO.
rights of third parties in federal court.3

 [BB 18] But the right

to arbitration that IBEW asserts in federal court is plainly “an

invasion of a legally protected interest” that affects IBEW “in

a personal and individual way.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 & n.1 (1992). Even if this right

belongs to the CBA’s third-party beneficiaries (the current

employees and retirees), rather than the contracting party (the

union), denial of this right affects the union in a personal and

individual way: IBEW is forced to incur the expense of either

suing in federal court to compel arbitration or litigating the

alleged violation of the CBA itself in federal court. 

3We note at the outset that this standing argument is distinct from appellant’s argument that the union cannot arbitrate certain claims (those

involving retiree benefits) without retiree consent. Although the Rossetto

opinion suggests that the latter issue also involves principles of standing,

see 128 F.3d at 541 (concluding that the union “lacks standing to bring the

retirees’ grievance to arbitration”), we do not share this view. The

Supreme Court’s constitutional and prudential standing doctrines, as enunciated in cases like Warth v. Seldin, 422 U.S. 490 (1975), are used to

determine who may sue in federal court. Because standing is based on

constitutional limitations on the “judicial Power” of the federal courts, see

generally U.S. Const. art. 3, it does not bear on the issue of whether a certain claim can be brought before an arbitrator. Thus, we believe it is misleading to say, for example, that “[a]s a general principle, a union has

standing under Article III of the Constitution to arbitrate the meaning of

a collective bargaining agreement.” Rossetto, 128 F.3d at 539. Article III

creates and limits the power of the federal courts, and is therefore not

implicated in a dispute before a non-Article III tribunal, such as an arbitrator. In addition, we know of no other doctrine of constitutional or prudential standing under which the consent of a third party can cure a plaintiff’s

lack of standing. 

The consent rule announced in Rossetto or Cleveland Electric more

closely resembles an implied-in-law contract term: because a court

believes it is unfair to compel arbitration without obtaining retiree consent,

it conditions the union’s right to arbitration on its obtaining the consent of

affected retirees. See, e.g., Bhd. of Locomotive Eng’rs v. Burlington N.

R.R.., 838 F.2d 1102, 1113 (9th Cir. 1988) (“[A] collective bargaining

agreement may include terms which, although omitted from the text of the

agreement, are nonetheless part of the agreement because they are

implied-in-law.”). As discussed above, we see no reason to imply such a

term in this case. 

IBEW v. CITIZENS TELECOMMUNICATIONS CO. 16051
[7] The alleged uncertainty as to whether the right to arbitration technically belongs to IBEW itself, rather than its individual members, does not deprive IBEW of standing. A union

has standing to sue on behalf of its members if the prerequisites of associational standing are met, see United Food &

Commercial Workers Union Local 751 v. Brown Group, Inc.,

517 U.S. 544, 553 (1996), and Citizens does not argue that

these requirements are not satisfied as to IBEW’s current

members.

[8] Instead, Citizens contends that IBEW cannot avail itself

of associational standing because the retirees are not union

members. But where, as here, the union has associational

standing to bring a suit to compel arbitration on behalf of its

current members, we know of no rule depriving it of that

standing solely because it may lack standing to bring suit on

behalf of non-members. 

Accordingly, we conclude that the district court properly

granted IBEW’s petition to compel arbitration, and its judgment is 

AFFIRMED.

16052 IBEW v. CITIZENS TELECOMMUNICATIONS CO.