In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-4065

EXELON GENERATION COMPANY, LLC,

EXELON BUSINESS SERVICES COMPANY, AND

COMMONWEALTH EDISON COMPANY,

Plaintiffs-Appellants,

v.

LOCAL 15, INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, AFL-CIO,

Defendant-Appellee.

____________

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 07 C 968—Matthew F. Kennelly, Judge.

____________

ARGUED MAY 13, 2008—DECIDED SEPTEMBER 2, 2008

____________

Before EASTERBROOK, Chief Judge, and KANNE and

TINDER, Circuit Judges.

TINDER, Circuit Judge. Exelon Generation Company, LLC,

Exelon Business Services Company, and Commonwealth

Edison Company (“Exelon”) filed a complaint for declara-
2 No. 07-4065

tory judgment against Local 15, International Brotherhood

of Electrical Workers, AFL-CIO (“Local 15” or “Union”),

seeking a determination that disputes over Exelon’s

changes to medical benefits for retirees are not within the

scope of the parties’ collective bargaining agreement

(“CBA”) or arbitrable under the grievance procedure

and that Local 15 may not represent the retirees. The

parties filed cross-motions for summary judgment. The

district court granted the Union’s motion and denied

Exelon’s motion, concluding that the Union may represent the retirees in arbitration and that the matter was

subject to arbitration. Judgment was entered. Exelon

appeals.

I. Background

Exelon and Local 15 are parties to a CBA. They have

engaged in collective bargaining for over fifty years and

have bargained over mandatory bargaining subjects such

as working conditions and wages as well as permissive

bargaining subjects such as retiree medical benefits that

become effective upon a bargaining unit employee’s

retirement. The terms of the retiree medical benefits have

been memorialized in Memoranda of Agreement Reached

in Collective Bargaining (“MOAs”) which supplemented

and became part of the CBA.

In January 2004, Exelon made various unilateral changes

to the retiree medical benefits. These changes immediately

affected certain retirees and may also affect current employees when they retire. This led to a dispute between

Exelon and the Union over the interpretation and applica-
No. 07-4065 3

tion of the retiree medical benefit provisions. The Union

believes that the dispute is within the scope of the CBA’s

four-step grievance procedure which states in part:

“Should any dispute or difference arise between the

Company and the Union or its members as to the interpretation or application of any of the provisions of this

Agreement . . . the dispute or difference shall be settled

through the grievance procedure.” If a dispute is not

resolved at steps one through three, then at step four, at

the request of a party to the grievance, the dispute shall

be referred to arbitration. The grievance procedure

states: “All decisions rendered by the impartial arbitrator

shall be final and binding on both parties.”

On October 4, 2005, the Union filed a grievance under

step 1 of the grievance procedure, alleging that Exelon

violated the CBA and MOAs “with respect to retiree

medical plans, premiums, and prescription drug costs

for active and retired employees.” In the section entitled

“Name of Employee(s),” the Union wrote, “For the good of

the Union.” The grievance proceeded through steps 1, 2

and 3 of the grievance procedure without resolution. On

February 19, 2006, the grievance proceeded to step 4, when

the Union referred the grievance to arbitration. Exelon

participated in the selection of an arbitrator and hearing

dates. However, Exelon later argued that “retirees are not

part of the bargaining unit and Exelon does not have

an obligation to . . . bargain with Local 15 with respect

to current retirees.”

Exelon provides medical benefits to approximately 5,889

bargaining-unit retirees and their dependents. The Union
4 No. 07-4065

does not have the consent of all retirees affected by

Exelon’s changes to retiree medical benefits to represent

them in arbitration of the dispute. Seven retirees have

consented to representation by the Union in the

grievance procedure, though not in writing. No affected

retiree has filed an individual action against Exelon over

the changes to the retiree medical benefits.

On February 20, 2007, Exelon filed a complaint for

declaratory judgment, seeking a declaration that disputes

over its decisions to modify retiree medical and prescription drug benefits are not subject to arbitration under

the CBA. The parties filed cross-motions for summary

judgment, raising two issues of arbitrability and an issue of

the Union’s standing. The district court granted the Union’s motion for summary judgment and denied Exelon’s

motion. The court first decided that the dispute between

the Union and Exelon over retiree medical benefits falls

within the scope of the grievance procedure in the CBA.

Second, it concluded that Exelon had consented to

arbitrate the underlying retiree medical benefit dispute.

And, finally, the court concluded that the Union could

represent the retirees who consented to its representation; consent of all affected retirees was not necessary

for the Union to pursue arbitration.

II. Analysis

We review de novo the district court’s decisions on the

cross-motions for summary judgment. Rickher v. Home

Depot, Inc., No. 07-2850, 2008 WL 2877515, at *3 (7th Cir.

July 28, 2008). In this case we address (1) whether Exelon
No. 07-4065 5

Exelon does not challenge the district court’s conclusion that 1

the dispute over retiree medical benefits falls within the scope

of the CBA’s grievance procedure. The operative provision—“any dispute or difference . . . between the Company and

the Union or its members as to the interpretation or application

of any of the provisions of this Agreement . . . shall be settled

through the grievance procedure”—easily encompasses this

dispute.

consented to arbitration of a dispute over retiree medical

benefits brought by the Union on behalf of retirees, and

(2) whether the Union may arbitrate a dispute under the

CBA on behalf of affected retirees when it has the

consent of a few but not all of the affected retirees. Before 1

getting to the substantive issues presented on appeal, we

must first assure ourselves that we have appellate jurisdiction. 

A. Appellate Jurisdiction

A question arose at oral argument of whether a final

judgment had been entered by the district court, and we

ordered the parties to file supplemental memoranda

addressing the issue. The parties complied with the order,

and we are satisfied that we may properly exercise appellate jurisdiction.

“Unless the plaintiff loses outright, a judgment must

provide the relief to which the winner is entitled. That

motions have been granted is beside the point.” Rush Univ.

Med. Ctr. v. Leavitt, Nos. 07-3648, 08-2227, 2008 WL

2941220, at *1 (7th Cir. Aug. 1, 2008); see also Perlman v.
6 No. 07-4065

Swiss Bank Comprehensive Disability Prot. Plan, 195 F.3d 975,

977 (7th Cir. 1999); Reytblatt v. Denton, 812 F.2d 1042, 1044

(7th Cir. 1987). A judgment must “specify what matters:

the consequence of the judicial ruling.” Rush Univ. Med. Ctr.,

2008 WL 2941220, at *1. If, however, the final disposition of

the case can easily be inferred, then the appeal may go

forward “despite technical shortcomings.” Id.; see also Metzl

v. Leininger, 57 F.3d 618, 620 (7th Cir. 1995) (“If it is plain

what the judgment declares . . . and it is also plain that the

district court is finished with the case . . . there is appellate

jurisdiction.”); Alpine State Bank v. Ohio Cas. Ins. Co., 941

F.2d 554, 559 (7th Cir. 1991) (concluding appellate jurisdiction existed even though district court did not technically

enter a declaration of the parties’ rights but intended to

enter a final judgment).

Exelon filed a complaint for declaratory judgment,

seeking a declaration that disputes over its decisions to

modify retiree medical and prescription drug benefits

are not subject to arbitration under the CBA. The Union

filed an answer, and the parties filed cross-motions for

summary judgment. On December 3, 2007, the district

court entered three documents on its docket. It entered

its Memorandum Opinion and Order in which it determined that plaintiffs were not entitled to the declaratory

relief sought in their complaint and directed the clerk to

enter judgment in favor of the defendant. The court also

entered a Minute Order which said: 

For the reasons set forth in the Memorandum

Opinion and Order, the Court grants defendant’s

motion for summary judgment (34) and denies
No. 07-4065 7

plaintiffs’ motion for summary judgment (39).

Defendant’s motion to compel discovery is terminated as moot (29). The clerk is directed to enter

judgment in favor of the defendant. 

And, finally, the clerk entered a document entitled “JUDGMENT IN A CIVIL CASE,” which read:

Decision by Court. This action came to trial or

hearing before the Court. The issues have been

tried or heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that

the Court grants defendant’s motion for summary judgment and denies plaintiffs’ motion for

summary judgment. Judgment is entered in favor

of the defendant.

Although it would have been clearer had the judgment

indicated that the plaintiffs would take nothing and that

the case was dismissed, the failure to include this language

does not render the judgment non-final and unappealable.

See McCaskill v. SCI Mgmt. Corp., 298 F.3d 677, 679 (7th

Cir. 2002). Unlike American Interinsurance v. Occidental Fire

& Casualty Co., 835 F.2d 157 (7th Cir. 1987), in which both

sides sought declaratory relief and thus the final judgment had to include a declaration of rights, here, only

Exelon sought a declaratory judgment. The Union neither

filed a counterclaim nor sought any declaration of the

parties’ rights. And although the Union filed its own

motion for summary judgment, it merely sought a judgment against Exelon on the complaint for declaratory

relief. Furthermore, the district court’s Minute Order,

Memorandum Opinion and Order, and Judgment in a Civil

Case together indicate that there is nothing left to be
8 No. 07-4065

decided and that court is done with the case. The judgment

itself is clear that the plaintiff Exelon loses; judgment is

for the defendant Local 15. Therefore, the judgment is

final and we have appellate jurisdiction. We thus move

on to the merits of the appeal.

B. Exelon’s Consent to Arbitrate Disputes

Over Retiree Medical Benefits

Exelon contends that it did not agree to arbitrate a

grievance brought by the Union on behalf of retirees. The

district court concluded otherwise. The court reasoned

that because the CBA includes provisions that apply

specifically to retirees,

when the CBA says that disputes over its interpretation or application are subject to arbitration, that

necessarily includes disputes over retiree rights

that the CBA confers. In short, by entering into a

CBA that included terms according rights to

retirees as well as a broad obligation to engage in

arbitration over disputes about the CBA, [Exelon]

consented to arbitration of grievances brought on

behalf of retirees.

The court also relied on the presumption of arbitrability,

requiring an express provision or forceful evidence to

exclude the retiree grievance from arbitration. We have

said:

“[W]here the contract contains an arbitration

clause, there is a presumption of arbitrability in the

sense that [a]n order to arbitrate the particular
No. 07-4065 9

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.”

Int’l Bhd. of Elec. Workers, Local 21 v. Ill. Bell Tel. Co., 491

F.3d 685, 687-88 (7th Cir. 2007) (quoting AT&T Techs., Inc.

v. Commc’ns Workers of Am., 475 U.S. 643, 650 (1986) (internal quotations omitted)).

Exelon argues that Rossetto v. Pabst Brewing Co., 128 F.3d

538 (7th Cir. 1997), compels a different conclusion than

that reached by the district court. The CBA in Rossetto

provided for health benefits for retired employees and

their dependents, id. at 538, and the CBA’s arbitration

provision provided for appeal to arbitration of “all grievances . . . between the Company and its employees” that

“that cannot be satisfactorily settled” by the grievance

process. Id. at 539 (emphasis added). Pabst unilaterally

eliminated retiree health benefits and the union filed a

grievance on behalf of the affected retirees, alleging a

breach of the CBA. The union also filed a civil action on

behalf of all the retirees, seeking reinstatement of the

terminated benefits. The union eventually appealed the

grievance to arbitration, and Pabst refused to arbitrate.

The district court certified a class consisting of all the

retirees, their spouses, and dependents, who were represented by the union. The plaintiffs sought to compel

arbitration of the union’s grievance, their motion was

granted, and Pabst appealed. Id. We held that the union

lacked standing to represent the retirees in arbitration
10 No. 07-4065

unless the retirees consented to the union’s representation and Pabst consented to bargain with the union as the

agent of the affected retirees. Id. at 541.

Exelon is correct that the mere fact that a CBA creates

the retirees’ rights to medical benefits may be insufficient

to establish that the company agreed to arbitrate disputes

over retiree medical benefits. We know as much from

Rossetto. After all, the CBA there provided for retiree

health benefits, but this was insufficient by itself to support the conclusion that Pabst agreed to arbitrate retiree

claims. But there is a critical distinction between the CBA

in Rossetto and the one in this case: The CBA in Rossetto

expressly defined an arbitrable grievance as one between

Pabst and an “employee.” And retirees are not employees.

Id. at 540. The CBA here, however, does not define an

arbitrable grievance as one between the company and an

employee. Nor does the CBA in this case expressly restrict

arbitration to grievances by employees. The arbitration

agreement is broader than that. The grievance procedure

applies to “any dispute or difference . . . between the

Company and the Union or its members as to the interpretation or application of any of the provisions of this

Agreement . . . .” Exelon has agreed that a dispute exists

between it and the Union regarding the interpretation

and application of the retiree medical benefit provisions

of the MOAs, which are part of the CBA.

Exelon contends that the CBA contains specific language

plainly limiting the grievance procedure to disputes

brought by the Union on behalf of current employees. For

example, Exelon points to the following: “It is the intent
No. 07-4065 11

of the Company, Local Union 15, and the employees that

timely filed grievances shall be settled promptly” (emphasis added); the deadline for filing a grievance runs from

the date that the “employee became aware or reasonably

should have become aware of the incident which is the

basis for the grievance” (emphasis added); and “[t]he

dispute or difference shall be presented and first discussed by the employee concerned and the immediate

Supervisor.” (Emphasis added). None of these provisions,

however, or any other provision in the CBA we might

add, expressly excludes from arbitration a grievance

brought by the Union on behalf of retirees. The parties

could have written the CBA to exclude retiree grievances

from the arbitration agreement if they had intended to,

but they did not.

Exelon also points to the CBA’s representation and

recognition clause, which it claims demonstrates the

parties’ intent that the grievance provisions apply only

to current employees and not retirees. That clause recognizes the Union as the “exclusive bargaining representative

for all employees in” the bargaining unit. However, it

does not follow from the fact that Exelon recognizes the

Union as the exclusive bargaining representative for

bargaining unit employees that Exelon could never recognize the Union as the representative of retirees in arbitration. The clause does not clearly limit Exelon’s agreement

to arbitrate to disputes involving only current employees.

Any doubt about whether Exelon agreed to arbitrate

disputes brought on behalf of retirees is resolved by

application of the presumption of arbitrability. “[A]rbitra-
12 No. 07-4065

tion is favored and should be ordered ‘unless it may be

said with positive assurance that the arbitration clause is

not susceptible of an interpretation that covers the asserted

dispute.’ ” Niro v. Fearn Int’l, Inc., 827 F.2d 173, 175 (7th Cir.

1987) (quoting United Steelworkers of Am. v. Warrior & Gulf

Navigation Co., 363 U.S. 574, 582-83 (1960)). “Doubts

should be resolved in favor of coverage.” Warrior & Gulf

Navigation Co., 363 U.S. at 583. The presumption of

arbitrability is particularly applicable where the arbitration provision is broad. United Steelworkers v. Cooper Tire &

Rubber Co., 474 F.3d 271, 279 (6th Cir. 2007). Where the

arbitration provision is broad, as it is here, only an “ ‘express provision excluding a particular grievance from

arbitration . . . [or] the most forceful evidence of a

purpose to exclude the claim from arbitration’ ” can keep

the claim from arbitration. AT&T Techs., 475 U.S. at 650

(quoting Warrior & Gulf, 363 U.S. at 584-85). Several of

our sister circuits have applied the presumption of

arbitrability to disputes involving retirees. United Steelworkers of Am. v. Retirement Income Plan for Hourly-Rated

Employees of Asarco, Inc., 512 F.3d 555, 560-61 (9th Cir. 2008)

(applying presumption of arbitrability where union sought

arbitration and filed a complaint to compel arbitration);

Cleveland Elec. Illuminating Co. v. Util. Workers Union, 440

F.3d 809, 816 (6th Cir. 2005) (“[T]he presumption of

arbitrability applies to disputes over retirees’ benefits if the

parties have contracted for such benefits in their

[CBA]. . . .”); United Steelworkers of Am., AFL-CIO v. Canron,

Inc., 580 F.2d 77, 82 (3d Cir. 1978) (applying presumption).

But see Anderson v. Alpha Portland Indus., Inc., 752 F.2d

1293, 1295-98 (8th Cir. 1985).
No. 07-4065 13

We will apply the presumption of arbitrability here as

well. First of all, as noted, the arbitration provision is

quite broad. The grievance and arbitration procedure

covers “any dispute . . . as to the interpretation or application of any of the provisions of this Agreement” and the

retiree medical benefits are created by provisions of the

MOAs, which have supplemented and become part of the

CBA. And it was the Union rather than the retirees that

filed the grievance asserting a violation of the CBA and

MOAs with respect to retiree medical benefits. Furthermore as Exelon concedes, the dispute is between the

Union and Exelon. And the Union may resort to its economic weapons—it also represents the bargaining unit’s

interests in maintaining retiree medical benefits. These

considerations counsel in favor of applying the presumption of arbitrability. See Asarco, 512 F.3d at 560-61; Cleveland

Elec. Illuminating Co., 440 F.3d at 816.

Moreover, the CBA contains no express provision

excluding retiree grievances from the grievance and

arbitration procedure. The language cited by Exelon, supra,

is neither clear nor “forceful evidence” of a purpose to

exclude a dispute over retiree medical benefits from

the grievance and arbitration procedure. An interpretation of the arbitration language so as to include disputes

between Exelon and the Union over retiree medical

benefits is a reasonable one given the breadth of the

grievance and arbitration procedure. And where both the

Union’s and Exelon’s competing interpretations are

reasonable, it cannot be said with “positive assurance”

that the grievance and arbitration procedure is not suscep-
14 No. 07-4065

tible to an interpretation that covers the dispute over

retiree medical benefits. Therefore, we find no error in

the district court’s conclusion that Exelon consented to

arbitrate disputes over retiree medical benefits.

C. Whether the Union May Represent

a Few Retirees in Arbitration

The Union has the consent of a few, but not all, of

the current retirees affected by Exelon’s changes to

retiree medical benefits. Exelon contends that in Rossetto

we held that a union may not represent any retiree in

arbitration unless it obtains consent from all the affected

retirees to represent them. Exelon again misunderstands

Rossetto. In Rossetto we recognized that the union was not

the exclusive bargaining representative of the retirees.

Thus the retirees’ claims “for benefits [] belong to the

retirees individually, and the retirees may deal directly

with Pabst in pursuing such claims.” Rossetto, 128 F.3d at

540. But we did not foreclose the possibility of union

representation of retirees in arbitration. We said:

This is not to say that a union can never take

retirees’ claims to arbitration. Although a union

has no duty to represent retirees, and retirees need

not submit to union representation, retirees are

free to make a union their agent if they so choose.

And, of course, retiree benefits are a permissive

subject of bargaining—a union may bargain for

retirees if the employer agrees. What we are saying

is that any right District 10 has to pursue arbitra-
No. 07-4065 15

tion of the retirees’ grievance must come from the

retirees.

Id. (internal citations omitted). We concluded that the

union did “not have any right to represent the retirees

making up the class in this case unless each of the retirees

assents to its representation.” Id. at 541. The record

lacked any evidence that each of them had consented;

thus, we held that the union lacked standing to arbitrate

the retirees’ grievance. Id.

However, in Rossetto the retirees’ litigation seeking

reinstatement of their terminated retiree benefits and the

union’s appeal to arbitration of its grievance over the

elimination of those benefits were proceeding simultaneously. The district court certified a class consisting of

all retirees, and the union and four retirees were named

as class representatives. Id. at 539. The union argued that

the litigation and the arbitration could proceed on parallel

paths. Id. at 540. This argument was rejected:

The implication of allowing District 10 to take the

retirees’ grievance to arbitration is that none of the

forty-one retirees making up the class can pursue

separate litigation of their statutory claims. If

District 10 loses in arbitration, the retirees lose,

period. 

. . . The retirees[’] . . . ERISA claims . . . are not freestanding—for practical purposes, arbitration

would dispose of all of the retirees’ claims. District

10 cannot hijack the retirees’ right to pursue their

statutory claims by forcing arbitration.
16 No. 07-4065

Id. at 540-41. Importantly, the litigation and arbitration

involved the same parties and the same claims asserted

by the retiree class in litigation and by the union purportedly on the retirees’ behalf in arbitration. It was in this

context of parallel proceedings that we said that the

union could not force the retirees to arbitrate their claims.

Here, in contrast, the Union is not seeking to arbitrate

claims regarding retiree medical benefits on behalf of

retirees while those same retirees are simultaneously

litigating claims over those benefits in court. The district

court was correct in declining to read Rossetto as requiring

the consent of each and every affected retiree in this

context in order to give effect to a single retiree’s agreement to arbitrate his or her claim. To require the consent

of all in effect would allow those retirees who choose not to

consent to the Union’s representation in arbitration to

“hijack” the rights of the retirees who do consent to

such representation and arbitration. See id. at 540 (explaining “retirees are free to make a union their agent if

they so choose”).

Any doubt about the reach of Rossetto can be resolved

by consideration of Pryner v. Tractor Supply Co., 109 F.3d 354

(7th Cir. 1997), upon which Rossetto relied. In Pryner

we considered whether a CBA can compel an employee

to arbitrate a claim that he may have under a federal statute

such as a Title VII claim. Id. at 355. We held that

the union could not agree on the employees’ behalf to

arbitrate their Title VII claims. Id. at 363. But we did not

hold that the employees’ statutory claims were never

arbitrable: they were if the employee consented to arbitra-
No. 07-4065 17

tion. We said: “If the worker brings suit, the employer

suggests that their dispute be arbitrated, the worker

agrees, and the collective bargaining agreement does not

preclude such side agreements” the employee’s claims

are arbitrable. Id. Thus, neither Pryner nor Rossetto requires that all employees/retirees consent to arbitration

before the consent of one employee/retiree can be given

effect. These cases allow for each employee or retiree

individually to decide whether to consent to arbitration of his

or her own claims. Pryner further indicates that where the

employee/retiree and employer/former employer agree to

arbitration, “there is nothing to prevent a binding arbitration.” Id.; see also Cooper Tire & Rubber Co., 474 F.3d at 283

(finding “there is no real danger that Cooper would have to

relitigate the same issues with individual retirees that will

have already been arbitrated with the Union”); IDS Life Ins.

Co. v. Royal Alliance Assocs., 266 F.3d 645, 651 (7th Cir. 2001)

(stating that dispute resolved by arbitrators was closed to

further litigation by res judicata and collateral estoppel); cf.

Meza v. Gen. Battery Corp., 908 F.2d 1262, 1280 (5th Cir. 1990)

(holding that former employee’s lawsuit was not barred by

res judicata by union’s prior suit where employee was not a

party to the prior suit, as a former union member was not in

privity with the union, and never authorized the union to

represent his interest in prior suit).

In this case, the arbitrator’s decision would be final

and binding as to the parties to the arbitration, which is

all that the CBA contemplates. Exelon’s assertion that

arbitration of the claims of a few retirees would not result

in a final resolution of the dispute as required by the CBA

is incorrect. The arbitrator’s decision would be final and

binding on the parties to the arbitration. The CBA does not
18 No. 07-4065

purport to bind non-parties to the arbitration, and for

good reason. As a general rule, one is not bound by a

judgment in an action in which he is not a party. Hansberry

v. Lee, 311 U.S. 32, 40 (1940). That is not to say, though, that

the arbitrator’s interpretation of the CBA might not be given

weight in a subsequent proceeding, if any, brought by

retirees who have not consented to the Union’s representation in arbitration. But this alone is not enough to negate the

retirees’ consent to the Union’s representation and arbitration. The potential for weight to be given the arbitrator’s

interpretation would also exist if the arbitration were to

proceed in the absence of the interests of the retirees. The

Union’s grievance is brought on behalf of both retired and

active employees and seeks to enforce rights not only of the

retirees but also of the active employees’ interest in retiree

benefits. And the Union’s right to arbitrate the active employees’ grievance over retiree medical benefits has not been

challenged. We find no error in the district court’s conclusion that the Union may arbitrate on behalf of the seven

affected retirees who have consented to the Union’s representation.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s

judgment.

9-2-08