RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0227p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED FOOD & COMMERCIAL WORKERS, LOCAL

1995,

Plaintiff-Appellee,

v.

KROGER CO.,

Defendant,

KROGER LIMITED PARTNERSHIP I,

Defendant-Appellant.

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No. 22-5085

Appeal from the United States District Court for the Middle District of Tennessee at Nashville.

No. 3:20-cv-00948—Eli J. Richardson, District Judge.

Decided and Filed: October 14, 2022

Before: SILER, McKEAGUE, and LARSEN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: James A. Mills, David A. Nenni, JACKSON LEWIS, P.C., Cincinnati, Ohio, for 

Appellant. David W. Garrison, Scott P. Tift, BARRETT JOHNSTON MARTIN & GARRISON, 

LLC, Nashville, Tennessee, for Appellee.

SILER, J., delivered the opinion of the court in which McKEAGUE, J., joined. 

LARSEN, J. (pp. 15–22), delivered a separate dissenting opinion. 

>
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 2

_________________

OPINION

_________________

SILER, Circuit Judge. Kroger Limited Partnership I appeals the district court’s order 

granting the motion for judgment on the pleadings brought by United Food & Commercial 

Workers, Local 1995. For the following reasons, we AFFIRM.

I.

This is an arbitration dispute between Kroger Limited Partnership I (“KLPI”) and United 

Food & Commercial Workers, Local 1995 (the “Union”). KLPI operates Kroger grocery stores 

throughout Tennessee. It is a separate entity within “The Kroger Company” family and has its 

own collective bargaining agreement (“CBA”) with the Union. Id. For several years, the Union 

has represented “all full-time and part-time employees” in KLPI’s stores that are located in the 

“Nashville Division.” The Nashville Division includes Nashville, Tennessee, and the greater 

Knoxville, Tennessee, area. Unionized employees perform any services connected to handling 

merchandise “for sale” in KLPI’s “retail establishments[.]”

Over several years, KLPI has operated different retail-store configurations within the 

Nashville Division. They included rural stores, urban stores, small stores, large stores, stores 

with and without gas stations, and so-called “Marketplace” stores with large non-grocery 

departments. Through a series of CBAs, the Union has represented all retail-store employees 

working in these stores. And the Union has immediately represented the employees in any new 

store that KLPI opened in the Nashville Division. 

After several years of cooperation, KLPI and the Union found themselves at an impasse. 

In mid-2020, the “Supply Chain Division” of The Kroger Company opened a warehouse called 

the Knoxville Local Fulfillment Center. Soon after the warehouse opened, the Union filed a 

grievance with The Kroger Company, claiming that the Union represented employees at that 

facility—which the Union called the “Knoxville eCommerce Store.” In its grievance, the Union 

described how employees at the warehouse fill orders placed not by Kroger grocery stores, but 

by Walgreens pharmacies. The Union complained that employees who pick and deliver these 
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 3

orders for Kroger’s so-called “customer” were performing “fundamental[ly] bargaining[-]unit 

work.” The Union called these employees “pickers” and “drivers” and likened them to 

unionized retail-store employees at KLPI’s grocery stores. The Union therefore demanded The 

Kroger Company and KLPI extend union benefits to the “pickers” and “drivers.”

KLPI refused to process the Union’s grievance for itself or the Kroger Company. It 

claimed that the Knoxville Local Fulfillment Center is a warehouse, not a grocery store, and that 

it is part of The Kroger Company’s “supply chain network,” which is independent from retail 

stores operated by KLPI. KLPI also explained that it has no relationship with employees at the 

facility and, consequently, that the facility is not a “store covered by the CBA.” In response, the 

Union pursued arbitration under Article VII § D of their CBA, which governs grievances that 

concern “the interpretation or application of this [CBA].” KLPI, however, refused to arbitrate 

the grievance.

The Union sued The Kroger Company to compel arbitration and, in its amended 

complaint, added KLPI as a defendant. The Kroger Company and KLPI answered. In response, 

the Union moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). 

The district court determined the Union’s claim was arbitrable under the CBA but denied the 

motion as to The Kroger Company because the answer had denied The Kroger Company was a 

party to the agreement. The district court granted the motion as to KLPI, however, and ordered 

arbitration.1 KLPI now appeals the district court’s order granting in part the Union’s motion for 

judgment on the pleadings.

II.

We review de novo a district court’s order granting a Rule 12(c) motion for judgment on 

the pleadings. Anders v. Cuevas, 984 F.3d 1166, 1174 (6th Cir. 2021). Under Rule 12(c), 

“[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for 

judgment on the pleadings.” Fed. R. Civ. P. 12(c). We assess such motions “using the same 

standard that applies to a review of a motion to dismiss under Rule 12(b)(6),” Moderwell 

1Upon the Union’s subsequent motion, the district court dismissed The Kroger Company without prejudice. 

That order is not on appeal. 
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 4

v. Cuyahoga Cnty., 997 F.3d 653, 659 (6th Cir. 2021) (citation omitted)—that is, with one 

caveat. When the plaintiff, as opposed to the defendant, moves for judgment on the pleadings, 

instead of asking whether the “complaint . . . contain[s] sufficient factual matter, accepted as 

true, to ‘state a claim to relief that is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (citation omitted), we ask “whether the plaintiff’s petition, stripped of those allegations 

which are denied by the defendant’s answer, would leave the petition stating a cause of action 

against the defendant.” 61A Am. Jur. 2d Pleading § 497; see also Bass v. Hoagland, 172 F.2d 

205, 207 (5th Cir. 1949) (“[T]he fact allegations of the answer are to be taken as true, but those 

of the complaint are taken as true only where and to the extent that they do not conflict with 

those of the answer.”). 

With that one caveat, the same rules apply. We may consider exhibits that are referenced 

in the complaint and central to its claims. See Brent v. Wayne Cnty. Dep’t of Hum. Servs., 901 

F.3d 656, 695 (6th Cir. 2018) (citing Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 

430 (6th Cir. 2008)). We will not blindly accept legal conclusions nor draw unwarranted factual 

inferences from either the complaint or the answer. See Barber v. Charter Twp. of Springfield, 

31 F.4th 382, 387 (6th Cir. 2022) (citation omitted). After we accept the answer’s well-pleaded 

allegations as true and construe the pleadings and exhibits in a light most favorable to the 

defendant, “the motion may be granted only if the [plaintiff] is nevertheless clearly entitled to 

judgment.” S. Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th 

Cir. 1973); see also Murray v. Ohio Adult Parole Auth., 916 F.2d 713, at *2 (6th Cir. 1990) 

(Table) (citing Nat’l Metro. Bank v. United States, 323 U.S. 454, 456–57 (1945)). 

III.

A. Arbitration Agreement

Our consideration of the Union’s arbitration claim has a settled framework. See AT & T 

Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648 (1986). We “engage in a limited 

review” to determine whether the grievance is arbitrable. Javitch v. First Union Sec., Inc., 315 

F.3d 619, 624 (6th Cir. 2003). To do so, we must find “a valid agreement to arbitrate” and 

determine whether the grievance “falls within the substantive scope of that agreement.” Id. The 

parties agree Article VII § D of their CBA includes a mandatory arbitration agreement, which 
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 5

governs grievances that concern “the interpretation or application of this [CBA].” While the 

district court passingly expressed its concern that this section only permitted, as opposed to 

mandated, arbitration, the parties have not raised this concern on appeal. So we need only 

determine whether the Union’s grievance falls within the substantive scope of their arbitration 

agreement. See Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 299 (2010) 

(“[C]ourts should order arbitration of a dispute only where the court is satisfied that neither the 

formation of the parties’ arbitration agreement nor . . . its enforceability or applicability to the 

dispute is in issue. Where a party contests either or both matters, the court must resolve the 

disagreement.” (emphasis added) (internal quotation and citations omitted)). 

The Union’s grievance clearly falls within the substantive scope of the arbitration 

agreement. In its grievance, the Union asserted that KLPI must recognize the Union as the 

employee representative at the Knoxville Local Fulfillment Center. The grievance is based on 

the Union’s allegation that the Knoxville Local Fulfillment Center is a “store[] of the Kroger 

Company, Nashville Division,” under Article 3 § A of the CBA. According to that section, this 

would establish the Union as the “sole and exclusive bargaining agent for all full-time and parttime employees” at the Knoxville Local Fulfillment Center. The Union’s grievance thus falls 

within the scope of arbitration agreement because it concerns the “interpretation or application of 

this [CBA]”—that is, Article 3 § A of the CBA. 

As it falls within the scope of the arbitration agreement, we apply the presumption of 

arbitrability to the grievance. AT & T Techs., Inc., 475 U.S. at 650. This presumption requires 

us to “resolve any doubts in favor of arbitration” and prohibits denying an order to arbitrate 

“unless it may be said with positive assurance that the arbitration clause is not susceptible of an 

interpretation that covers the asserted dispute.” United Steelworkers of Am. v. Mead Corp., Fine 

Paper Div., 21 F.3d 128, 131 (6th Cir. 1994) (citing AT & T Techs., Inc., 475 U.S. at 648–51). 

This presumption is “particularly applicable” in the case of a “broad” arbitration agreement, like 

the one here. See, e.g., United Steelworkers of Am. v. Cooper Tire & Rubber Co., 474 F.3d 271, 

279 (6th Cir. 2007) (applying the presumption of arbitrability to an arbitration agreement 

covering “any dispute . . . as to the interpretation or application of this Agreement.”). To rebut 

the presumption of arbitrability, KLPI must identify either an “express provision excluding [the] 
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 6

. . . grievance from arbitration” or “forceful evidence of a purpose to exclude the claim from 

arbitration.” AT & T Techs., Inc., 475 U.S. at 650 (citation omitted). KLPI can do neither. 

i. Express Exclusion

KLPI contends that three provisions in the CBA expressly exclude the Union’s grievance 

from arbitration. For example, KLPI notes that Article 3 § A—the clause relied upon by the 

Union—only establishes the Union as the employee representative for “The Kroger Company, 

Nashville Division,” i.e., KLPI’s grocery stores. This provision excludes the Union’s grievance 

from arbitration, KLPI believes, because employees at the Knoxville Local Fulfillment Center 

are employed by The Kroger “Supply Chain Division”—not KLPI. But the Union argues that, 

if The Kroger “Supply Chain Division” employs the individuals, then KLPI breached Article 3 

§ A of the CBA when The Kroger Company surreptitiously opened a warehouse through the 

“Supply Chain Division,” instead of a grocery “store” through KLPI. Put another way, the 

grievance assumes Article 3 § A required KLPI to employ the warehouse employees. 

KLPI also points to the provision limiting “bargaining[-]unit work” to services related to 

selling products “in the Employer’s retail establishments.” This provision equally excludes the 

Union’s grievance, KLPI argues, because the Knoxville Local Fulfillment Center is a warehouse, 

not a “retail establishment.” Third, and relatedly, KLPI points to the provision that permits only 

union members to stock products that were distributed “through a Kroger distribution system.” 

KLPI claims this provision implies that employees of the “Kroger distribution system” are not 

covered by the CBA, and consequently the Union’s grievance is excluded from arbitration 

because the warehouse employees it seeks to represent are a part of that “distribution system.” 

The Union agrees that the CBA does not cover warehouses. Its argument is that the Fulfillment 

Center is “the latest iteration of a Kroger store because it receives Kroger product from the 

Kroger supply chain, stocks Kroger product on its shelves, and then sells Kroger product to the 

public -- albeit to different individual Walgreens stores.”

But none of these provisions KLPI points to “clearly and unambiguously” exclude the 

Union’s grievance from arbitration. Bakery, Confectionery, Tobacco Workers and Grain Millers 

Int’l Union AFL-CIO v. Kellogg Co., 904 F.3d 435, 444 (6th Cir. 2018) (cleaned up) (citation 

omitted). And, because “we cannot say with positive assurance that the arbitration clause is not 
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 7

susceptible of an interpretation that covers the asserted dispute, [we] must resolve any doubts in 

favor of arbitration.” Id. In fact, far from expressly excluding the grievance, these three 

provisions—according to KLPI—resolve it. And so the grievance necessarily raises a dispute 

over the “interpretation or application of this [CBA].” In other words, the provisions on which 

KLPI relies go to the merits of the Union’s grievance, not the threshold question of whether the 

contract requires the dispute to be resolved through arbitration. 

KLPI believes that were we to apply any of these provisions to the Union’s claim, we 

would see that KLPI never agreed to arbitrate such a baseless grievance. KLPI points to United 

Steelworkers of Am., Loc. No. 1617 v. Gen. Fireproofing Co., 464 F.2d 726 (6th Cir. 1972), 

where we interpreted the parties’ CBA before we denied an order to arbitrate. Id. at 729. There, 

the union’s grievance concerned the discharge of a supervisory employee. Id. Yet the parties’ 

arbitration clause only covered disputes “between an employee and the Company,” and the CBA 

defined “employee” to exclude “supervisors.” Id. Because of this, we found “by its terms[,] [the 

CBA] does not impose upon the Company any duty to arbitrate a dispute concerning discharge 

of a supervisor.” Id. But in that case, the CBA did not “permit the possible inference” that a 

supervisor was covered as an “employee,” so we simply relied on the “express exclusion” of a 

supervisor’s grievance from arbitration. See id. KLPI has not identified here a similar exclusion 

of the Union’s grievance, and the CBA does not prevent the possible inference that the 

fulfillment center and the individuals working there are covered by the CBA.2 

ii. Forceful Evidence

KLPI also contends that it has presented “forceful evidence of a purpose to exclude the 

claim from arbitration[.]” AT & T Techs., Inc., 475 U.S. at 650 (citation omitted). It maintains 

2KLPI also directs us to Rite Aid of Pennsylvania, Inc. v. United Food & Com. Workers Union, Loc. 1776, 

595 F.3d 128 (3d Cir. 2010), where a union brought a similar grievance, and the Third Circuit refused to order 

arbitration because the claim did not “rais[e] a legitimate question of the CBA’s interpretation.” Id. at 132. In that 

case, Rite Aid had denied the union access to Rite Aid’s newly acquired drugstores, where the union sought to 

solicit membership. Id. at 130. The parties’ CBA prohibited “any grievance that does not involve the interpretation 

of any provision of this Agreement;” id., so the union brought a “store-access” grievance under three provisions of 

the CBA. Id. The Third Circuit thoroughly interpreted each of those provisions before deciding that the ”storeaccess grievance does not fall within the scope of the CBA’s arbitration clause.” Id. at 136. We do not think such a 

thorough interpretation was warranted in that case. Instead, for the reasons outlined thoroughly in the Rite Aid 

dissent, we think that the Third Circuit should have saved the thorough interpretation for an arbitrator, as the parties 

agreed there, and similarly agreed here. See id. at 137–51 (Ambro, J., dissenting).
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 8

discovery would have shown that the CBA does not apply to the Knoxville Local Fulfillment 

Center and resultantly that KLPI never agreed to arbitrate a grievance complaining that it did. 

So, KLPI argues, the district court wrongly granted the Union’s motion before allowing 

discovery. We reject this argument as well. 

KLPI’s so-called “forceful evidence” primarily comes in the form of arguments by its 

attorneys. KLPI’s attorneys spent several pages in the response below—and on appeal before 

us—arguing that the CBA does not apply to the Knoxville Fulfillment Center because a company 

called “Vitacost.com” employs all the warehouse employees there and that the “Supply Chain 

Division,” which operates distribution warehouse for The Kroger Company, has an entirely 

distinct “labor structure” from KPLI’s grocery stores. But KLPI did not include these 

“allegations” in its answer. Bates v. Green Farms Condo. Ass’n, 958 F.3d 470, 483 (6th Cir. 

2020) (“[I]t is black-letter law that . . . a court evaluating a motion for judgment on the pleadings 

. . . must focus only on the allegations in the pleadings.”). 

Even were we to consider allegations outside the pleadings, the result would remain the 

same. The “forceful evidence” KLPI relies upon does not undermine the scope of the CBA’s 

arbitration agreement—it goes to the merits of the Union’s grievance. See United Steelworkers 

of Am., 21 F.3d at 131 (“[W]here the agreement contains an arbitration clause, the court . . . 

should not deny an order to arbitrate ‘unless it may be said with positive assurance that the 

arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’” 

(citation omitted) (emphasis added). Regardless of whether The Kroger “Supply Chain 

Division,” “Vitacost.com,” or any other party is potentially implicated by an arbitrator’s 

decision, the Union is not seeking to enforce the arbitration agreement against any of them. Our 

only inquiry is whether the Union’s grievance falls within the scope of the arbitration agreement, 

and it clearly does.3 

3Here, the dissent believes we failed to credit the answer’s allegation that KLPI has no employment 

relationship with employees at the Knoxville Local Fulfillment Center. Not so. Although we ignored KLPI’s 

arguments about who employs the warehouse employees, we accepted the allegation that KLPI does not—Rule 

12(c) thus remains intact. Regardless, the thrust of the dissent’s disagreement is the effect of this allegation on the 

question of arbitrability. The dissent reasons that if KLPI did not hire the warehouse employees then the warehouse 

could not be a “store” governed by the CBA. The dissent arrives at this conclusion by interpreting the word “store” 

in Article 3 § A of the CBA, finding warrant to do so in Litton Financial Printing Division v. National Labor 
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 9

Because the Union’s grievance falls within the scope of the CBA’s arbitration agreement, 

we affirm the district court’s decision to compel arbitration. 

B. Jurisdiction

KLPI lastly raises a jurisdictional argument. It argues any order enforcing the arbitration 

agreement invades the jurisdiction of the National Labor Relations Board. KLPI believes the 

Union’s grievance arises solely under the National Labor Relations Act of 1935, and so the 

arbitrator lacks authority to resolve it. KLPI is wrong. 

The National Labor Relations Board (the “Board”) administers the National Labor 

Relations Act of 1935 (the “NLRA”). See 29 U.S.C. § 153. Section 7 of the NLRA “guarantees 

workers ‘the right to self-organization[] [and] to form, join, or assist labor organizations.” Epic 

Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018) (citing 29 U.S.C. § 157). When a Union 

brings a claim “arguably subject to [section] 7 . . . of the [NLRA],” we must yield to the Board’s 

expertise and decline jurisdiction. San Diego Bldg. Trades Council, Millmen’s Union, Loc. 2020 

v. Garmon, 359 U.S. 236, 245 (1959). Nevertheless, Section 301(a) of the Labor Management 

Relations Act of 1947 (“LMRA”) grants federal courts “jurisdiction over contractual disputes 

between employers and unions.” DiPonio Const. Co. v. Int’l Union of Bricklayers, 687 F.3d 

744, 749 (6th Cir. 2012); see also 29 U.S.C. § 185(a)). And this includes the jurisdiction to 

Relations Board, 501 U.S. 190 (1991) and extra-circuit caselaw purporting to value the duty to determine 

arbitrability higher than the duty to avoid deciding the merits when the issues are intertwined. And having 

determined that this CBA would not govern the warehouse, the dissent concludes the Union’s grievance is not 

arbitrable—incidentally, deciding the merits of the Union’s grievance en route. But even assuming Litton required 

us to define what a “store” is (or more specifically, isn’t), but see Litton, 501 U.S. at 209 (“[W]e refuse to apply 

[the] presumption [of arbitrability] wholesale in the context of an expired bargaining agreement[.]” (emphasis 

added)), we need not abandon the presumption of arbitrability today: KLPI’s allegation does not inescapably defeat 

this grievance, such that it no longer properly “concerns the interpretation or application of this [CBA].” See United 

Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564, 567–68 (1960) (“The function of the court . . . is confined to 

ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract.”). 

The Union’s grievance in essence alleges that KLPI breached Article 3 § A of the CBA when The Kroger Company 

surreptitiously opened a warehouse through the “Supply Chain Division,” instead of a grocery “store” through 

KLPI. Put another way, the grievance assumes Article 3 § A required KLPI to employ the warehouse employees. 

So unlike a grievance seeking to govern a Target in Nashville (thus, clearly having nothing to do with this CBA), the 

grievance still concerns the “interpretation or application of this [CBA]” because it alleges this CBA required the 

warehouse to be a “store”—even if the Union’s grievance fails because KLPI’s allegation proves the warehouse is 

not. While the dissent correctly implies that The Kroger Company—not KLPI—presumably is responsible for 

opening a warehouse instead of a grocery store, an arbitrator must still interpret this CBA to dispose of the Union’s 

arguably “frivolous,” yet arbitrable, grievance. AT & T Techs., Inc., 475 U.S. at 649. So the merits are not 

intertwined because we need not determine whether the Knoxville Local Fulfillment Center is governed by the CBA 

to conclude the parties agreed to arbitrate that question. 
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 10

“grant the union specific enforcement of an arbitration clause[.]” Int’l Bhd. of Elec. Workers, 

Loc. 71 v. Trafftech, Inc., 461 F.3d 690, 694 (6th Cir. 2006) (citation omitted). So, as we’ve long 

recognized, federal courts and the Board “have concurrent jurisdiction over some disputes.” 

DiPonio Const. Co., 687 F.3d at 749. 

KLPI believes we lack jurisdiction nonetheless because the Union’s arbitration claim is 

“primarily representational.” Although we share jurisdiction with the Board in some instances, 

we do not enjoy concurrent jurisdiction with the Board over “primarily representational” claims. 

Trafftech, Inc., 461 F.3d at 695 (citation omitted). A claim is “primarily representational” in one 

of two circumstances: (1) where the Board has already exercised jurisdiction over it and is either 

considering the matter or has already decided it, or (2) where the claim forces an “initial decision 

in the representation area.” Id. (cleaned up). As the Board has never exercised jurisdiction over 

the Union’s grievance, we must decide whether the arbitration claim forces a so-called “initial 

decision in the representation area.” 

A claim forces an “initial decision in the representation area” where the court or arbitrator 

must resolve a representational question under the NLRA to resolve the grievance. See DiPonio 

Const. Co., 687 F.3d at 750 (citing Trafftech, Inc., 461 F.3d at 695). For instance, KLPI argues, 

to resolve the Union’s grievance, the arbitrator must decide whether, under the NLRA, the Union 

represents employees at the warehouse. Specifically, KLPI believes an arbitrator must determine 

whether, under the NLRA, employees at KLPI’s grocery stores “constitute a single appropriate 

bargaining unit” with employees at the Knoxville Local Fulfillment Center.

For its part, the Union characterizes its grievance as a breach-of-contract claim under 

section 301(a) of the LMRA. The Union contends its grievance only raises “contractual” issues, 

i.e., whether, by its terms, the CBA applies to employees at the Knoxville Local Fulfillment 

Center. If the Union is correct, we may retain jurisdiction. While it won’t suffice to “simply 

refer[] to the claim as a ‘breach of contract,’” we retain concurrent jurisdiction over claims that 

raise matters “primarily of contract interpretation,” even if they “potentially implicat[e] 

representational issues.” Air Prods. & Chems., Inc., 300 F.3d at 672, 675 (emphasis added). 

Such circumstances can arise where the employer’s conduct constitutes an unfair labor practice 

and a breach of the CBA. DiPonio Const. Co., 687 F.3d at 749 (citation omitted). In such a 
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 11

circumstance, our concurrent jurisdiction provides “an independent forum for resolution of 

representational or contractual issues[.]” Air Prods. & Chems., Inc., 300 F.3d at 673. 

So is the Union’s claim “primarily representational” or contractual? As evidence that it is 

contractual, the Union likens its grievance to the one in Air Products & Chemicals, Inc, where 

we exercised jurisdiction and ordered arbitration. 300 F.3d at 669. There, the Union submitted a 

grievance to exercise the employees’ “seniority rights” to work at a newly opened facility. The 

employer dismissed the grievance, and the Union moved to compel arbitration. Id. at 669–70.

We characterized the arbitration claim as a contractual claim because the Union sought to 

arbitrate a grievance grounded in the CBA; the union had relied on the CBA’s provision granting 

“seniority rights” to certain employees who worked at older facilities. Id. at 675–76. Unlike the 

situation here, however, the parties in Air Products & Chemicals, Inc. never disputed whether the 

union represented those employees; they only disputed whether the CBA governed them at a 

new facility. Id. at 674. But the parties here dispute not only whether the CBA applies to the 

Knoxville Local Fulfillment Center but also whether the Union represents employees at the 

warehouse.

Nonetheless, this arbitration claim is contractual because the Union’s grievance arises 

under the CBA—particularly under, what’s commonly called, a “new-store” clause. A “newstore” clause provides for “employer recognition of a union as bargaining agent for its employees 

in the ‘employer’s present and future retail food store situated within the area.’” Emp. 

Coordinator Labor Relations, § 47:26. Although it does not characterize its grievance in this 

way, the Union clearly anchors its right to represent the warehouse employees in a “new-store” 

clause. The Union relies on the provision in the CBA establishing it as the representative for 

employees at “the stores of the Kroger Company, Nashville Division.” The Union argues this 

language applies to both present and future “stores” and that the Knoxville Local Fulfillment 

Center is such a “store.” Properly construed we have jurisdiction over the Union’s arbitration 

claim because the grievance presents the arbitrator with a matter “primarily of contract 

interpretation,” i.e., whether the CBA includes a “new-store” provision, which KLPI somehow 

breached. Air Prods. & Chems., Inc., 300 F.3d at 672.
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 12

Compare the Union’s claim with the one in DHSC, LLC v. California Nurses Ass’n, 700 

F. App’x 466 (6th Cir. 2017), where enforcing an arbitration agreement would have forced a 

representational issue. In that case, the union and the employer could not agree on the terms of a 

CBA; so the union petitioned the Board to hold an election for the employees’ representation. 

Id. at 467–78. The employer objected because it claimed the parties agreed exclusively to 

arbitrate election disputes—as opposed to seeking resolution from the Board. Id. at 469. The 

Board rejected that objection and, after an election, certified the union as the employees’ 

representative. Id. at 469–71. Although the employer characterized its subsequent federal 

arbitration claim as a breach-of-contract claim, we recognized the claim was “primarily 

representational”: for us to have decided whether the parties had an agreement exclusively to 

arbitrate election disputes, we would have implicitly decided whether the Board had the authority 

to certify the Union—clearly a representational issue. See id. at 473. But unlike the employer in 

California Nurses Ass’n, KLPI acknowledges that the CBA obligates it to arbitrate the Union’s 

grievances (it just argues not this one). So simply by enforcing this arbitration agreement, we 

will not be determining who the Union represents, including whether it represents the warehouse 

employees. 

Nor does the arbitrator face those concerns presented in International Brotherhood of 

Boilermakers v. Olympic Plating Indus., Inc., 870 F.2d 1085 (6th Cir. 1989). There, union 

members voted to disaffiliate with their union, and the employer entered a CBA with a different 

one. So the original union sued for an injunction to prevent the employer from recognizing the 

new union. Id. at 1087. We determined the claim was “primarily representational” because it 

required the court to “determine which of the two unions would be the authorized exclusive 

collective bargaining representative[.]” Id. But unlike the court in Olympic Plating Industries, 

Inc., the arbitrator here need not determine whether, under the NLRA, the Union’s bargaining 

unit includes employees at the Knoxville Local Fulfillment Center; if the Union is correct, the 

parties have already answered “yes” to that question through the “new-store” clause. See Cappa 

v. Wiseman, 659 F.2d 957, 960 (9th Cir. 1981) (“[P]arties to a collective bargaining arrangement 

may by agreement define the scope of the bargaining unit.”); see also Hotel Emps., Rest. Emps. 

Union, Loc. 2 v. Marriott Corp., 961 F.2d 1464, 1468 (9th Cir. 1992) (“[W]hile the courts may 

not resolve representational issues, the parties may resolve these issues contractually.”). 
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 13

When all’s said and done, a “new-store” clause is simply “interpreted to mean that the 

employer waives its right to a Board ordered election.” Retail Clerks Int’l Ass’n Local No. 455 

v. NLRB, 510 F.2d 802, 806 (D.C. Cir. 1975). So while the employer must “accept alternative 

methods” of proving employee support for the union, the “new-store” employees must still elect 

the Union. NLRB. v. Retail Clerks Loc. 588, Retail Clerks Int’l Ass’n, 587 F.2d 984, 986 n.2 (9th 

Cir. 1978). For instance, the Union’s grievance complained that KLPI “should have contacted 

the Union prior to opening” the Knoxville Local Fulfillment Center and that KLPI should have 

“introduced [the employees] to a Representative of the Union.” So the Union’s grievance is 

premised on the notion that the Knoxville Local Fulfillment Center is a “new store,” and thus the 

Union had a contractual right to establish majority support at the warehouse. And although 

KLPI agrees the Union “immediately represents bargaining unit employees” whenever KLPI 

opens a “new store,” the Union alleges that KLPI failed to abide by this prior course of dealing 

here. Cf. Rite Aid of Pennsylvania, Inc., 595 F.3d at 144–47 (Ambro, J., dissenting) (“[T]he 

Union seeks the opportunity through arbitration to demonstrate, based on the parties’ past 

practices and/or custom, that they understood the [CBA] to grant the Union the right to enter 

newly acquired stores [to] solicit[] membership.”). 

If during arbitration a question remains about whether the warehouse employees wish to 

be represented by the Union, “[t]he superior authority of the Board may be invoked at any time.” 

Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 272 (1964). The Board does not lose its 

jurisdiction over this dispute “solely because we enforce the arbitration clause[.]” Trafftech, 

Inc., 461 F.3d at 697 (citation omitted). So, at this point, any conflict between the arbitrator’s 

decision and the Board’s jurisdiction is speculative. Cf. United Food & Com. Workers Union, 

Loc. 400 v. Shoppers Food Warehouse Corp., 35 F.3d 958, 962 (4th Cir. 1994) (rejecting 

argument that “the arbitration clause should not be enforced because the arbitrator’s decision 

may conflict with . . . NLRB policy requiring a showing of majority status before [new][-]store 

clauses are enforced.”). We affirm the district court’s conclusion that this claim is not preempted 

by the NLRB. 
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 14

CONCLUSION

We AFFIRM the district court’s order granting the Union’s motion for judgment on the 

pleadings and compelling KLPI to arbitrate the Union’s grievance. 
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 15

_________________

DISSENT

_________________

LARSEN, Circuit Judge, dissenting. The majority concludes that KLPI must arbitrate a 

dispute over employees whom KLPI says it does not employ, in a warehouse that KLPI says it 

does not control. Given the procedural posture, we must assume KLPI’s claims are true. When 

we do, the Union’s motion for judgment on the pleadings must fail. And the presumption of 

arbitrability cannot save it. Although I agree with the majority that we have jurisdiction to hear 

this case, I would reverse the district court’s order granting the Union’s motion for judgment on 

the pleadings. I respectfully dissent.

I.

The nature of the grievance here is undisputed: the Union objects to KLPI’s refusal to 

bind employees of the Knoxville Local Fulfillment Center to the Nashville Division’s CBA. 

May the Union compel KLPI to arbitrate that grievance through an arbitration agreement 

contained in the parties’ CBA? KLPI says, “no.” The CBA extends only to “employees” of 

KLPI employed “in the stores” of KLPI. KLPI says that it “has no relationship with employees 

at the” Fulfillment Center. If this factual claim is true, then surely KLPI can neither “bind” nor 

“refuse to bind” the Fulfillment Center employees to the CBA. Nor can that unrelated store be a 

“store covered by the CBA,” at least insofar as the CBA governs relations between KLPI and the 

Union.1

The procedural posture requires us to take KLPI’s version of the facts as true. The Union 

sought to compel arbitration by seeking judgment on the pleadings under Federal Rule of Civil 

Procedure 12(c). Plaintiffs rarely use the Rule 12(c) procedure, so few cases discuss the 

standards for reviewing such a motion. But one thing is clear: any factual allegation denied by 

1The district court took as true the Kroger Company’s denial that it was also party to the CBA, so it denied 

the Rule 12(c) motion as it related to the parent company, allowing the case to proceed to discovery on that fact 

question. If Kroger Company is a party to the CBA, and if the employees at the Fulfillment Center have some 

relationship with Kroger Company, then it is possible that Kroger Company should be made to arbitrate the 

grievance. But, at the request of the Union, Kroger Company has been dismissed without prejudice.
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 16

the answer must be taken as false when assessing a plaintiff’s Rule 12(c) motion. See Dist. No. 

1., Pac. Coast Dist., Marine Eng’rs Beneficial Ass’n v. Liberty Mar. Corp., 933 F.3d 751, 761 

(D.C. Cir. 2019); Beal v. Mo. Pac. R.R. Corp., 312 U.S. 45, 51 (1941); see also 61A Am. Jur. 2d 

Pleading § 497 (2022) (“Allegations of a complaint that are specifically denied by the answer 

must be eliminated from consideration in determining a plaintiff’s motion for judgment on the 

pleadings.”); 61A Am. Jur. 2d Pleading § 505 (2022) (“[A]ll allegations of the moving party 

which have been denied or controverted are taken as false.”).

Against that backdrop, this case is straightforward. KLPI denied any relationship with 

the employees of the Fulfillment Center in the pleadings. KLPI told the Union that it did not 

“employ, hire, train, direct, supervise, or have any employment relationship with the individuals 

employed” at the Fulfillment Center. And, in response to the complaint’s claim that 

“[e]mployees at the [Fulfillment Center] are employed by [Kroger and KLPI],” KLPI admitted 

that Kroger’s supply chain division employs those persons, but “otherwise denied” the claim. 

Taking KLPI’s statements in the pleadings as true, KLPI has no employment relationship 

whatsoever with the employees of the Fulfillment Center. And we must strip the contrary facts 

from the Union’s complaint when reviewing its Rule 12(c) motion.

On those facts, the parties’ CBA and its accompanying arbitration provision do not 

govern. The arbitration provision covers any “interpretation or application of the contents of [the 

CBA],” so anything even plausibly within the four corners of the CBA is arbitrable. Compare 

Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459, 470 (6th Cir. 

2009), with United Offshore Co. v. S. Deepwater Pipeline Co., 899 F.2d 405, 410 (5th Cir. 

1990). But the CBA extends only to “employees” of KLPI employed “in the stores” of KLPI. 

The CBA does not cover the employees of the totally unrelated Fulfillment Center any more than 

it would cover the employees of a newly built Target in Nashville or a Kroger in Hawaii. The 

Union therefore cannot force KLPI to arbitrate union representation at the Fulfillment Center.

The majority opinion sidesteps the effect of KLPI’s denials by suggesting that KLPI 

should have included “allegations” about the true employer of the Fulfillment Center, 

vitacost.com, in the answer. Maj. Op. at 8. But denials alone (without further elaboration) are 

sufficient to controvert facts of the complaint for a Rule 12(c) motion. See Liberty Mar. Corp., 
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 17

933 F.3d at 761–63 (reversing the district court’s order granting the plaintiff’s Rule 12(c) motion 

to compel arbitration because the court failed to consider the defendant’s denials in the answer 

when determining whether an agreement to arbitrate existed); see also 61A Am. Jur. 2d Pleading

§§ 497, 505. And even if allegations were required, the majority opinion acknowledges that, in a 

letter attached to the Union’s amended complaint, KLPI explained that it had no relationship 

with the employees at the Fulfillment Center. Maj. Op. at 3. So in ruling on the Union’s Rule 

12(c) motion, we must take as false the Union’s assertion that the Fulfillment Center workers are 

KLPI “employees” working in a KLPI “store.” Judgment on the pleadings for the Union was, 

therefore, improper.

The presumption of arbitrability does not change this result. As the district court noted, 

the interplay between the Rule 12(c) standards and the presumption is complicated. Here, the 

Rule 12(c) standards favor KLPI. See Liberty Mar. Corp., 933 F.3d at 760. The presumption 

favors the Union. See United Steelworkers of Am. v. Cooper Tire & Rubber Co., 474 F.3d 271, 

279–80 (6th Cir. 2007) (noting that the presumption is “particularly applicable” to “broad” 

arbitration provisions, like the one here). But the Rule 12(c) standard does not give way to the 

presumption of arbitrability. Instead, the presumption goes to work once we apply the agreement 

to the facts. See Liberty Mar. Corp., 933 F.3d at 763 (recognizing that the presumption of 

arbitrability comes into play after it is determined that the parties had a contract to arbitrate). 

Construing all the facts (including the denials in the answer) in the nonmovant’s favor, we ask 

whether “it may be said with positive assurance that the arbitration clause is not susceptible of an 

interpretation that covers the asserted dispute.” AT&T Techs., Inc. v. Commc’ns Workers of Am., 

475 U.S. 643, 650 (1980) (quoting United Steelworkers of Am. v. Warrior & Gulf Navigation 

Co., 363 U.S. 574, 582–83 (1960)). When the facts are properly construed in KLPI’s favor for 

the purposes of the Union’s Rule 12(c) motion, the dispute here involves employees and a 

facility wholly unrelated to KLPI. At this stage, then, the dispute is outside of the CBA. 

II.

The majority opinion’s approach also reveals a disagreement over a broader 

question: what to do when two principles governing arbitration intersect and conflict. 

Generally, four principles govern arbitration provisions in collective bargaining agreements. But 
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 18

the principles are also confusing and sometimes competing. See Commc’n Workers of Am. 

v. Avaya, Inc., 693 F.3d 1295, 1300 (10th Cir. 2012).

First, arbitration is a matter of contract. AT&T Techs., 475 U.S. at 648. A party cannot 

be required to submit to an arbitration it did not agree to. Id. Second, arbitrability is a question 

for courts to decide unless the parties “clearly and unmistakably” provide otherwise. Id. at 649. 

Third, in deciding arbitrability, a court should not rule on the potential merits of the underlying 

claims. Id. Even “frivolous” claims should be sent to the arbitrator. Id. at 650. Fourth, where 

there is an arbitration clause, there is a presumption of arbitrability. Id. Arbitration is 

appropriate unless it can “be said with positive assurance that the arbitration clause is not 

susceptible of an interpretation that covers the asserted dispute” and “[d]oubts should be resolved 

in favor of coverage.” Id. (quoting Warrior & Gulf Navigation, 363 U.S. at 582–83). The 

presumption is especially strong when the arbitration clause is broad. Id. Then only the “most 

forceful evidence” of a purpose to exclude the claim from arbitration will prevail. Id. (quoting 

Warrior & Gulf, 363 U.S. at 584–85). And when the provision is so broad that it covers all 

questions of contract interpretation, the court’s role “is confined to ascertaining whether the party 

seeking arbitration is making a claim which on its face is governed by the contract.” United 

Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564, 568 (1960).

The problem arises when these principles collide. In this case, the “merits and its 

arbitrability are inextricably intertwined.” Rite Aid of Pa., Inc. v. United Food & Com. Workers 

Union, Loc. 1776, 595 F.3d 128, 131 (3rd Cir. 2010). If the Fulfillment Center has KLPI 

employees, then this dispute is clearly arbitrable. And the Union likely wins on the merits, too. 

If the Fulfillment Center has no relation to KLPI, this dispute is not arbitrable, and the Union 

loses on the merits. So we end up stuck between the first principle, which tells us to interpret the 

scope of the agreement to determine arbitrability, and the third principle, which tells us not to 

resolve the merits. AT&T Techs., 475 U.S. at 649; see also Avaya, 693 F.3d at 1300 (discussing 

the clashing principles and compiling cases).

Thankfully, the Supreme Court has told us what to do. In Litton Financial Printing 

Division v. National Labor Relations Board, the Court directed us to interpret the underlying 

agreement when necessary to fulfill our duty to decide questions of arbitrability, even when that 
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 19

also means deciding the merits. 501 U.S. 190 (1991). The question in Litton was “whether a 

dispute over layoffs which occurred well after expiration of a collective-bargaining agreement 

must be said to arise under the agreement despite its expiration.” Id. at 193. The Union and the 

dissenters argued that the merits of that question were not for the court because “that is an issue 

of contract interpretation to be submitted to an arbitrator in the first instance.” Id. at 208. The 

Supreme Court disagreed. The Court emphasized that “[w]hether or not a [party] is bound to 

arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the court, and a 

party cannot be forced to ‘arbitrate the arbitrability question.’” Id. (quoting AT&T Techs., 475 

U.S. at 651). The Court also acknowledged the presumption of arbitrability, especially when, as 

in that case, “the agreement contains a broad arbitration clause.” Id. at 209. But it nonetheless 

decided the merits: “Although doubts should be resolved in favor of coverage, we must 

determine whether the parties agreed to arbitrate this dispute, and we cannot avoid that duty 

because it requires us to interpret a provision of a bargaining agreement.” Id. (emphasis 

added) (citation omitted). 

Litton tells us how to resolve conflicts between our duties to resolve arbitrability 

questions and to abstain from the merits: interpret the agreement when necessary to determine 

its scope, even if doing so incidentally decides the merits; otherwise, send the merits to an 

arbitrator. That means that some but not all frivolous claims will go to the arbitrator. 

The majority opinion discounts Litton, mentioning it only in a footnote and suggesting 

that it applies only to cases involving expired bargaining agreements. See Maj. Op. at 8 n.3. But 

the majority offers no theory explaining why Litton should be limited to its facts; and no other 

circuit has read Litton that way. Instead, a wealth of caselaw supports the conclusion that Litton 

requires courts to interpret an agreement when necessary to determine its scope, even if doing so 

incidentally decides the merits. 

In International Brotherhood of Electrical Workers v. GKN Aerospace North America, 

Inc. (IBEW), a union sought to compel arbitration of a dispute involving one of the GKN’s 

supervisory employees. 431 F.3d 624, 626 (8th Cir. 2005) (Colloton, J.). The supervisor had 

been promoted, had obtained a withdrawal card from the union, and had ceased to be a member 

of any bargaining unit, years before the current CBA was signed. Id. at 626, 629. But he no 
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 20

longer wanted to work as a supervisor and sought to return to his work as an electrician. Id. at 

626. Having no open electrician positions, GKN fired the supervisor. Id. The union filed a 

grievance on the supervisor’s behalf, trying to return him to the bargaining unit, and seeking 

arbitration. Id. The court recognized the presumption in favor of arbitration, but also recognized 

a “tension” in the caselaw when “the merits of the claim are intertwined with the question of 

arbitrability.” Id. at 627. Litton, the court held, resolved the tension. After Litton, the “judicial 

responsibility to determine arbitrability takes precedence over the general rule to avoid 

consideration of the merits of a grievance.” Id. at 628. So the question for the court was whether 

it was “‘possible’ for an arbitrator to decide in favor of the supervisor ‘without thereby, in effect, 

amending the plain language of the agreement.’” Id. (citing Peerless Pressed Metal Corp. 

v. Int’l Union of Elec., Radio & Mach. Workers, AFL-CIO, 451 F.2d 19, 20 (1st Cir. 1971)); see 

also Gen. Tel. Co. v. Commc’n Workers of Am., 402 F.2d 255, 256 (9th Cir. 1968) (per curiam) 

(holding that employer was not required to arbitrate where “[t]o hold otherwise, would be to 

rewrite the contract between the parties”). The answer was “no.” No arbitrator could rule for the 

plaintiff because he was “clearly . . . not an employee, covered by the agreement.” IBEW, 431 

F.3d at 629. So the dispute did not “arise under the Agreement” and was “not subject to 

arbitration.” Id. at 630.

The Tenth Circuit followed suit in Communication Workers of America v. Avaya, Inc. 

There, the issue was whether “backbone engineers” were employees or managers, the latter 

being excluded from the CBA. 693 F.3d at 1296–97. Just as here, the arbitration provision 

extended to any “complaint involving the interpretation or application of any of the provisions of 

[the CBA].” Id. at 1297 (emphasis added) (alteration in original). Nonetheless, the court 

decided that Litton required it to “evaluate the threshold question of whether the parties 

consented to submit a particular dispute to arbitration,” even if the threshold question decided the 

merits. Id. at 1300–01. “[T]he Supreme Court tells us, the court’s duty to determine whether the 

party intended the dispute to be arbitrable trumps its duty to avoid reaching the merits.” Id. at 

1300. Looking at the agreement, the court concluded that “management” clearly meant any 

employee “designate[d] as [a] manager[].” Id. at 1301. So there was “no real dispute about the 

classification of backbone engineers” and there was only “one conclusion to draw from the 

record: the parties did not consent to submit the underlying dispute to arbitration.” Id. at 1302.
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 21

The Seventh Circuit also agrees. After Litton, “the rule that courts must decide 

arbitrators’ jurisdiction takes precedence over the rule that courts are not to decide the merits of 

the underlying dispute.” Indep. Lift Truck Builders Union v. Hyster Co., 2 F.3d 233, 236 (7th 

Cir. 1993). So “[i]f the court must, to decide the arbitrability issue, rule on the merits, so be it.” 

Id. at 236.

The Third Circuit’s decision in Rite Aid of Pennsylvania, Inc. v. United Food 

& Commercial Workers Union, Local 1776 is so factually similar to this case that it is hard to 

distinguish. 595 F.3d 128. And it too, reached a result contrary to the majority’s. There, Rite 

Aid had a CBA that covered certain drugstores in eastern Pennsylvania. Id. at 130. When Rite 

Aid acquired a chain of new stores, the Union sought arbitration, arguing that the CBA applied to 

“newly-acquired or newly-opened stores” within the CBA’s geographic jurisdiction and that 

resolving the dispute required interpreting the CBA. Id. The court noted the broad arbitration 

provision and the presumption in favor of arbitration, but nonetheless recognized a duty to see if 

there was “forceful evidence” suggesting that the parties intended to exclude the dispute from 

arbitration. Id. at 131–32. And, looking at the terms of the agreement, the court concluded that 

“a right of Union access to newly acquired stores simply cannot be plausibly derived from the 

[CBA].” Id. at 134. Thus, the CBA could not apply to the new stores’ “employees because the 

Union does not presently represent those stores’ employees.” Id. The court concluded that the 

plaintiff’s interpretation was not “sufficiently plausible” to send the dispute to arbitration. Id. 

The majority disagrees with Rite Aid, finding the dissent’s reasoning more persuasive. But in so 

doing, the majority opinion has put our circuit at odds with four others, and in the company of 

none.

The majority opinion is also at odds with our own pre-Litton caselaw. In United 

Steelworkers of America, Local No. 1617 v. General Fireproofing Co., the court was presented 

with an arbitration provision that, as in the present case, covered disputes over the “meaning and 

application” of the CBA. 464 F.2d 726, 729 (6th Cir. 1972) (emphasis added). Nevertheless, we 

declined to send the Union’s grievance on behalf of a supervisor to the arbitrator because the 

CBA did not “permit the possible inference” that he was covered as an “employee.” Id. at 730. 

We said that we could “not understand how an arbitrator could arbitrate a grievance of an 
No. 22-5085 United Food & Commercial Workers v. Kroger Co., et al. Page 22

employee who is not a member of the bargaining unit.” Id. The majority opinion distinguishes 

General Fireproofing on the ground that the arbitration clause there covered only disputes 

“between an employee and the Company.” Maj. Op. at 7. Because of this “express exclusion” 

of the grievance from arbitration, see id., the majority opinion concludes that the panel in 

General Fireproofing resolved the question of arbitrability without deciding the merits. 

According to the majority opinion, the CBA in the present case contains no similar exclusion. 

But it does. The “Dispute Procedure” section submits to arbitration only disputes between the 

KLPI and the “aggrieved employee.” And the scope of the CBA extends only to KLPI 

employees in KLPI stores. So in my opinion, General Fireproofing controls; but even if not, 

Litton does. 

* * *

“Whether or not a [party] is bound to arbitrate, as well as what issues it must arbitrate, is 

a matter to be determined by the court, and a party cannot be forced to ‘arbitrate the arbitrability 

question.’” Litton, 501 U.S. at 208 (quoting AT&T Techs., 475 U.S. at 651). Here, the parties’ 

dispute falls outside the scope of the arbitration agreement. It is true that the arbitration 

provision is so broad that we are “confined to ascertaining whether the party seeking arbitration 

is making a claim which on its face is governed by the contract.” United Steelworkers, 363 U.S. 

at 568. But on the face of the contract, this CBA applies only to KLPI “employees” at KLPI 

stores. So, if KLPI’s answer is believed, an arbitrator could not rule for the Union without 

“amending the plain language of the agreement” by expanding the CBA’s scope. See Peerless 

Pressed Metal, 451 F.2d at 20. And KLPI never agreed to arbitrate this dispute. See AT&T 

Techs., 475 U.S. at 648.

I would reverse the district court’s grant of the Union’s Rule 12(c) motion and remand 

for further proceedings. I respectfully dissent.