United States Court of Appeals 

For the First Circuit 

No. 16-1161 

PRIME HEALTHCARE SERVICES - LANDMARK LLC, 

Plaintiff, Appellee, 

v. 

UNITED NURSES AND ALLIED PROFESSIONALS, LOCAL 5067, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF RHODE ISLAND 

[Hon. Ronald L. Lagueux, U.S. District Judge] 

Before 

Torruella, Lipez, and Barron, 

 Circuit Judges. 

Christopher Callaci, for appellant. 

David C. Casey, with whom Jillian S. Folger-Hartwell and 

Littler Mendelson, P.C. were on brief, for appellee. 

February 3, 2017 
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TORRUELLA, Circuit Judge. This appeal requires us to 

decide whether a dispute between employees and their successor 

employer should be resolved in arbitration or in the courts. The 

parties agreed to arbitrate this dispute. The district court, 

however, refused to compel arbitration; it found that ERISA 

preempted arbitration of this dispute, and reasoned that this, in 

turn, presented an issue of arbitrability properly decided by a 

judge, not an arbitrator. Because we find that the issue of ERISA 

preemption in this case is not an issue of arbitrability, but 

rather one that is squarely for the arbitrator to decide, we 

reverse. 

I. Background 

Plaintiff-Appellee Prime Healthcare Services ("Prime") 

purchased Landmark Medical Center ("Landmark"), a financiallytroubled hospital in Woonsocket, Rhode Island, in December 2013. 

Defendant-Appellant United Nurses and Allied Professionals, Local 

5067 ("Union") is a union local which represented Landmark's 

employees pursuant to a collective bargaining agreement. 

In 2006, Landmark and the Union entered into a collective 

bargaining agreement ("Landmark CBA"), in effect until 2009, 

renewed automatically each year unless either party reopened. 

This CBA contained a grievance and arbitration clause that provided 

that any unresolved disputes "concerning the interpretation, 
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application or meaning" of the CBA could be submitted to 

arbitration with the American Arbitration Association. This CBA 

also contained a pension provision, which stated, in relevant part: 

The Employer [Landmark] and the Union agree that, if 

during the term of this Agreement the Employer sells 

more than fifty (50) percent of its assets, the 

Employer may terminate the Landmark Medical Center 

Retirement Plan for Union Employees in accordance with 

the requirements of ERISA. The Union acknowledges 

and agrees it is clearly and unmistakably waiving any 

and all rights it has or may have to bargain with the 

Employer over any aspect of the termination, provided 

such termination shall not reduce benefits accrued by 

any participant in the Landmark Medical Center 

Retirement Plan for Union Employees as of the date of 

termination. 

In June 2008, Landmark was placed under the oversight of 

a Temporary Special Master by the Providence Superior Court due to 

its financial woes.

In 2012, Prime made an offer to take over Landmark. 

Prime met with the Union and agreed that it would take over 

Landmark's contract with its employees.

On October 10, 2012, Prime and the Union signed a cover 

memorandum ("Cover Memorandum") and accompanying contract ("Prime 

CBA"). The Cover Memorandum provided that "Prime shall recognize 

and continue to process any and all grievances and/or labor 

arbitrations pending at the time of the closing pursuant to the 

CBAs referenced herein". The Cover Memorandum also stipulated 

that in the event of inconsistencies between the Cover Memorandum 
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and the Asset Purchase Agreement (that was yet to be concluded and 

approved by the court), the Cover Memorandum would govern. The 

Prime CBA contained the same grievance/arbitration clause as the 

Landmark CBA.

On June 5, 2013, the Pension Benefit Guarantee 

Corporation ("PBGC") announced its intention to involuntarily 

terminate Landmark's defined benefit retirement plan because 

Landmark had failed to maintain the minimum funding requirements.1 

The termination was completed the following week.

On July 1, 2013, the Union filed a grievance against 

Landmark alleging a violation of the pension provision of the 

Landmark CBA. The grievance was denied, and the Union demanded 

arbitration. 

On July 8, 2013, the Providence Superior Court 

authorized Landmark to execute the termination agreement. The 

Court also ruled that "any and all rights and remedies of [the 

Union] with respect to the employee retirement benefits are 

reserved." The PBGC and the Special Master then entered into an 

Agreement for Appointment of Trustee and Termination of Plan. 

 

1 A detailed description of the PBGC and its functions has been 

offered by the court below. See Prime Healthcare Servs., LLC -- 

Landmark v. United Nurses & Allied Prof'ls, Local 5067, 158 

F. Supp. 3d 60, 62-97. See also United Steelworkers of America 

v. United Eng'g, Inc., 52 F.3d 1386 (6th Cir. 1995). 
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This Agreement conveyed all assets of the retirement plan to the 

PBCG, and provided, inter alia, that any asset purchase agreement 

that the Special Master entered into could not include assumption 

of the retirement plan.

In October 2013, the Union amended its grievance against 

Landmark to state: "The employer violated the governing Collective 

[B]argaining Agreement . . . when it changed the terms of the 

defined pension benefit provisions and ceased making contributions 

to employees [sic] pensions". Landmark denied this amended 

grievance, too, and the Union filed a request for arbitration on 

November 8, 2013.

On November 26, 2013, Prime entered into the Asset 

Purchase Agreement with the Special Master to purchase Landmark. 

This court-approved Agreement stated that Prime would not assume 

or be responsible for "any Liability under any Benefit Plan and 

all administrative costs associated therewith."

On December 31, 2013, when the Asset Purchase Agreement 

became effective, Landmark terminated all of its employees. On 

January 1, 2014, some of these employees were hired back by Prime, 

and the Prime CBA took effect.

On May 5, 2014, Prime filed a Petition for Declaratory 

Judgment in the United States District Court for the District of 

Rhode Island. Prime sought, inter alia, to stay arbitration.
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In June 2014, the Union filed another grievance against 

Prime, stating that it violated the 2012 Cover Memorandum by 

refusing to submit the Union's pending grievance to arbitration. 

On January 21, 2016, the District Court for the District 

of Rhode Island (Lagueux, J.) ruled, on summary judgment, for Prime 

on the grounds that ERISA preempted the Union's claims (and any 

matters relating to the Retirement Plan).

This appeal timely followed. 

II. Standard of Review 

"Summary judgment is appropriate when the record shows 

that 'there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.'" Farmers Ins. 

Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011) (quoting 

Fed. R. Civ. P. 56(a)). "We review de novo the grant of a motion 

for summary judgment." Id. at 782. "[W]e may affirm the entry 

of summary judgment 'on any ground made manifest by the record,' 

so long as the record 'reveals that there is no genuine issue as 

to any material fact and that the moving party is entitled to 

judgment as a matter of law.'" Batista v. Cooperativa de Vivienda 

Jardines de San Ignacio, 776 F.3d 38, 42 (1st Cir. 2015) (citations 

omitted). 
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As neither party disputes any material facts, our review 

focuses solely on whether the movant was entitled to judgment as 

a matter of law. 

III. Discussion 

The issue before us is whether an arbitrator or a court 

should resolve the present dispute. This issue raises two 

questions, which we address in turn: first, whether the present 

case raised a question of substantive arbitrability, and with it, 

the presumption against arbitration; and, second, whether the 

subject matter of the Union's claims is suitable for arbitration. 

A. Arbitrability2

Because we already offered a detailed discussion of the 

Supreme Court's precedents concerning arbitrability in Kristian v. 

Comcast Corp., 446 F.3d 25, 37-41 (1st Cir. 2006), we here limit 

our discussion to those aspects of arbitrability necessary to 

resolve the present case. 

"The 'question of arbitrability' is a term of art with 

a narrow scope." Unite Here Local 217 v. Sage Hospitality 

 

2 The term "arbitrability" has been used inconsistently, at times 

encompassing all prerequisites to and conditions for arbitration. 

George Bermann, The Gateway Problem in International Commercial 

Arbitration, 37 Yale J. Int'l L. 1, 10 (2012). As we explain in 

this section, we here use the term in the narrow sense in which 

the Supreme Court used it in Howsam v. Dean Witter Reynolds, Inc., 

537 U.S. 79, 83-84 (2002). 
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Resources, 642 F.3d 255, 261 (1st Cir. 2011). The Supreme Court 

considers the phrase "question of arbitrability" 

applicable in the kind of narrow circumstance where 

contracting parties would likely have expected a court 

to have decided the gateway matter, where they are 

not likely to have thought that they had agreed that 

an arbitrator would do so, and consequently, where 

reference of the gateway dispute to the court avoids 

the risk of forcing parties to arbitrate a matter that 

they may well not have agreed to arbitrate. 

Kristian, 446 F.3d at 38 (quoting Howsam, 537 U.S. at 83-84 

(2002)). 

As we went on to explain in Kristian, "[t]he cornerstone 

here is an assumption about the intent of the contracting parties 

to an arbitration agreement, in 'the kind of narrow circumstances 

where contracting parties would likely have expected a court to 

have decided the gateway matter.'" 446 F.3d at 38 (quoting Howsam, 

537 U.S. at 83-84). And in these narrow circumstances, a 

presumption applies that a court, rather than an arbitrator, 

decides the gateway matter. Id. at 38-39. This presumption can 

be defeated, however, by clear and unmistakable evidence that the 

parties did mean to submit that matter to arbitration. Unite 

Here, 642 F.3d at 262. 

There are two categories of disputes where we apply the 

presumption that courts, rather than arbitrators, resolve the 

gateway matter: "(1) disputes 'about whether the parties are 

bound by a given arbitration clause'; and (2) disagreements 'about 
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whether an arbitration clause in a concededly binding contract 

applies to a particular type of controversy.'" Id. at 39 (quoting 

Howsam, 537 U.S. at 84) (clarifying that "[e]xamples of the former 

include whether an arbitration contract binds parties that did not 

sign the agreement; and whether an arbitration agreement survived 

a corporate merger and bound the subsequent corporation. . . . 

Examples of the latter include whether a labor-management layoff 

controversy was covered by the arbitration clause of a collectivebargaining agreement; and whether a clause providing for 

arbitration of various grievances covers claims for damages for 

breach of a no-strike agreement") (citations omitted). 

The kind of arbitrability involved in these two 

categories -- the kind of arbitrability where we presume that a 

court decides the gateway matter -- can be referred to as 

"substantive arbitrability." Howsam, 537 U.S. at 85. The Supreme 

Court has also found that there is "procedural arbitrability," 

where the presumption is that an arbitrator -- not a court -- 

should decide the gateway matter, because that is what the parties 

would likely have expected. Id. at 84. Examples of "procedural 

arbitrability" include "procedural questions which grow out of the 

dispute and bear on its final disposition," and "allegation[s] of 

waiver, delay, or a like defense to arbitrability." Kristian, 446 

F.3d at 39 (quoting Howsam, 537 U.S. at 84). 
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The present dispute does not raise an issue of 

substantive arbitrability. The Cover Memorandum entered into by 

Prime and the Union stated that "Prime shall recognize and continue 

to process any and all grievances and/or labor arbitrations pending 

at the time of the closing [of the Asset Purchase Agreement] 

pursuant to the CBAs referenced herein," and the parties agree 

that the grievance at issue here was pending at the time of the 

closing of the Asset Purchase Agreement. Both the Landmark CBA 

and the Prime CBA contained arbitration clauses. The Providence 

Superior Court, which authorized Landmark to execute the 

termination agreement, ruled that "any and all rights and remedies 

of [the Union] with respect to the employee retirement benefits 

are reserved." The present dispute between the Union and Prime 

is indeed about employee retirement benefits. Thus, both parties 

are bound by the arbitration clause. 

This binding arbitration clause also applies to the 

dispute at issue. Not only is the Cover Memorandum directly 

applicable to the dispute before us, but all the relevant documents 

contain broad language. Thus, the Cover Memorandum is applicable 

to "any and all grievances and/or labor arbitrations," and the 

arbitration provisions of both the Landmark CBA and the Prime CBA 

encompass "any dispute between the Hospital and the Union 

concerning the interpretation, application or meaning of any of 
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the express provisions of this Agreement." "The breadth of the 

arbitration clause, which covers 'any disputes over [the] 

interpretation or application' of the Agreement, presents an 

insurmountable impediment to [Prime]'s position." Unite Here, 642 

F.3d at 262. 

Still, the district court concluded that the matter 

before us presented an issue of arbitrability, and was therefore 

for the court, not for an arbitrator, to decide. The district 

court reached this conclusion by reasoning that the Union's claim 

was one that, per ERISA, could only be brought by the PBGC, and 

that ERISA's preemptive sweep therefore preempted or barred 

arbitration. Prime now urges us to adopt this analysis. We 

decline. As we demonstrate in the next section, a statutory bar 

to or preemption of arbitration is not an issue of arbitrability 

-- and ERISA does not bar or preempt the arbitration of this claim. 

Consequently, this case should proceed to arbitration, and the 

arbitrator shall decide, inter alia, whether ERISA bars or preempts 

the Union's claims. 

B. Suitability of the Subject Matter for Arbitration 

"[T]he [Supreme] Court stated that once it was clear 

that the 'parties' agreement to arbitrate reached the statutory 

issues,' a court must then consider 'whether legal constraints 

external to the parties' agreement foreclosed the arbitration of 
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those claims.'" Bercovitch v. Baldwin School, Inc., 133 F.3d 141, 

148-49 (1st Cir. 1998) (quoting Mitsubishi Motors Corp. v. Soler 

Chrysler–Plymouth, Inc., 473 U.S. 614, 628 (1985)). The "liberal 

policy favoring arbitration agreements" informs this inquiry. Id. 

at 149 (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 

20, 25 (1991)). Still, 

there might be some cases in which the arbitral 

setting is an inappropriate forum for the resolution 

of statutory claims, but . . . the burden [is] 

squarely on the plaintiff to prove that this is so. 

. . . If Congress intended to preclude a waiver [of 

a judicial forum], that intention would be 

discoverable in the text or legislative history of 

the statute, or in an 'inherent conflict' between 

arbitration and the underlying goals of the statute. 

Id. (quoting Gilmer, 500 U.S. at 26) (internal citations omitted). 

The question we must resolve then, is whether the text 

or the legislative history of ERISA shows Congressional intent to 

preclude a waiver of judicial remedies, and whether an inherent 

conflict exists between arbitration and the underlying goals of 

ERISA. This is a different inquiry from the inquiry into 

arbitrability -- the arbitrability inquiry focuses on the intent 

of the parties, whereas we must now focus on the intent of 

Congress.3

 

3 Although, confusingly, the term "arbitrability" has been used 

to encompass the suitability of the subject matter for arbitration, 

we here follow the Supreme Court in Howsam, and use the term of 

art "arbitrability" in its narrow sense. See supra n.1. 
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As a preliminary matter, we note that an argument that 

ERISA in general shows Congressional intent to preclude 

arbitration is highly implausible. See, e.g., Bird v. Shearson 

Lehman/American Exp., Inc., 926 F.2d 116, 118-19 (2d Cir. 1991). 

Because Prime does not advance such an argument, we need not decide 

the issue here. We also note that the fact that the arbitration 

agreement is contained in a collective bargaining agreement does 

not make it any less enforceable. 14 Penn Plaza LLC v. Pyett, 556 

U.S. 247, 251 (2009) (enforcing arbitration clause in collective 

bargaining agreement). 

Prime, however, argues that the subject matter of the 

present case is not suitable for arbitration. Prime contends that 

the Union's claim is preempted or barred by ERISA. Citing 29 

U.S.C. §§ 1341(a)(1), 1362(b)-(c), Prime contends that Title IV of 

ERISA provides the exclusive means by which defined benefit pension 

plans may be terminated, and also specifies which entities can 

pursue claims for unfunded liabilities. Citing 29 U.S.C. 

§ 1342(d)(1)(B)(ii), Prime then argues that where, as here, the 

PBGC initiated the termination, only the PBGC and the statutory 

trustee of the plan (which Prime states is the PBGC in this case) 

have the power to collect any amounts due under the plan. Prime 

also cites 29 U.S.C. § 1367 for the proposition that ERISA provides 

the mechanism by which the PBGC can enter into settlement 
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agreements with plan sponsors to recoup any amounts due under the 

plan. Prime then shifts its attention to 29 U.S.C. §§ 1322(c) and 

1344. Prime believes that these sections would be superfluous if 

the Union were to prevail on its claim, because these sections 

provide that the PBGC must allocate to participants and 

beneficiaries a portion of the unfunded benefit liabilities 

recovered for the terminated plan, and set out a priority scheme 

for doing so. Prime then argues that in order for the PBGC to 

ensure that this priority scheme is followed, the PBGC alone must 

control all assets that will be allocated to participants and 

beneficiaries in question. Prime's concern is that if an 

arbitrator were to rule in favor of the Union, the PBGC would then 

be unable to fulfill the role ERISA prescribes for it. In this, 

Prime sees an "inherent conflict" between the purposes of ERISA 

and arbitration. 

The fatal flaw in Prime's reasoning is that it fails to 

draw a simple, but crucial distinction: the question before us 

is not whether the Union can bring its claim, but who decides --

court or arbitrator -- whether the Union can bring its claim. 

Even if we assume, for the sake of argument, that Prime's reading 

of ERISA is correct, this does not mean that the subject matter of 

the Union's claims is not suitable for arbitration.4 For if ERISA 

 

4 To be clear, we by no means suggest that Prime's reading of 
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indeed preempts or bars the Union's claim, an arbitrator can make 

that determination. And if it is indeed key to the statutory 

scheme of ERISA that all assets that will be allocated to 

participants and beneficiaries of the plan be under the control of 

the PBGC, then, once again, an arbitrator can make that 

determination. 

Prime, however, argues that an arbitrator may reach the 

wrong conclusion, and thus the purposes of ERISA would not be 

reached. This is exactly the kind of "outmoded" view of 

arbitration that the Supreme Court has repeatedly rejected. See, 

e.g., Rodríguez, 490 U.S. at 481. We are not to presume that an 

arbitrator will make mistakes. In addition, the judicial review 

of arbitral decisions, albeit limited, provides adequate 

protection against errors that an arbitrator may commit. 

Mitsubishi, 473 U.S. at 638 ("Having permitted the arbitration to 

go forward, the national courts of the United States will have the 

opportunity at the award-enforcement stage to ensure that the 

legitimate interest in the enforcement of the antitrust laws has 

been addressed."). Consequently, a subject matter cannot be 

 

ERISA is, or is not, correct -- this matter will be for the 

arbitrator to resolve in the first instance. Rather, we are merely 

assuming for the sake of argument that Prime's reading of ERISA is 

correct, only to show that even if it is correct, the Union's 

claims must still be arbitrated. 
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unsuitable for arbitration by virtue of a concern that the 

arbitrator may err.5

It is telling that Prime is able to point to only one 

case in which a court found an "inherent conflict" between 

arbitration and the purposes of a statute: In re United States 

Lines, Inc., 197 F.3d 631 (2d Cir. 1999). That case is readily 

distinguishable from the present one. In United States Lines, the 

court found that, under the right circumstances, core (but not 

non-core) bankruptcy matters must be resolved in bankruptcy court, 

rather than arbitration. Id. at 640. This is because one of the 

policies that underlies the Bankruptcy Code is the need for a 

single, centralized proceeding -- and the preferred forum for that 

proceeding is bankruptcy court. Id. at 640-41. The court cited 

 

5 Prime also argues that a claim may not be arbitrated at all if 

the arbitral award would require a party to violate the law. In 

a similar vein, Prime argues that arbitration would be futile if 

it resulted in an award contrary to federal law, and that an 

arbitrator cannot order something that is contrary to federal law. 

Prime cites George Watts & Son, Inc. v. Tiffany & Co., 248 F.3d 

577, 580-81 (7th Cir. 2001) in support of this proposition. These 

arguments, too, are rooted in an outmoded view of arbitration as 

an inadequate forum for the adjudication of federal claims -- but 

we are not to presume that an arbitrator will make a wrong 

determination of the federal claims, and if she does, we will be 

able to review it. Prime has also failed to demonstrate that the 

only award an arbitrator could render would be an award of pension 

benefits (which, on Prime's reading of ERISA, would violate federal 

law). In other words, we have no reason in the present case to 

presume that an arbitrator will compel Prime to do anything that 

is contrary to federal law. 
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to, inter alia, the text and legislative history of the Bankruptcy 

Code -- including direct references to arbitration -- for the 

proposition that Congress intended to preclude parties from 

arbitrating certain claims. Id. In the present case, by 

contract, Prime has not pointed to anything in ERISA or its 

legislative history that calls for a single, centralized 

proceeding to decide the Union's claim; Prime has also not pointed 

to anything in ERISA or its legislative history that would preclude 

arbitration from being the proper forum for the resolution of that 

claim.6

IV. Conclusion 

Because the case before us belongs in arbitration, we 

vacate the memorandum and order of the district court, and remand 

with instructions to grant the Union's motion to compel 

arbitration. We take care to note that we have resolved only one 

narrow question: whether this dispute -- including the issue of 

whether ERISA bars or preempts the Union's claims -- should be 

resolved by an arbitrator or by a court. Nothing in our opinion 

 

6 The Union also argues that the district court relied on mootness 

to deny its demand for arbitration. While the Union is likely 

correct that mootness would present an issue of "procedural 

arbitrability", and thus presumptively be for the arbitrator to 

decide, we do not read the district court as having relied on 

mootness to reach its conclusion, for the district court noted 

that its "ruling does not rest squarely on the doctrine of 

mootness".
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is intended to intimate in any way how the arbitrator should 

resolve the dispute -- that is, of course, for the arbitrator to 

decide. 

Vacated and Remanded. Costs are awarded to appellant.