PUBLISH 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

COMMUNICATION WORKERS OF 

AMERICA, 

 Plaintiff – Appellee, 

v. 

AVAYA, INC., 

Defendant - Appellant. 

No. 11-1470 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:10-CV-02464-LTB-BNB) 

Patrick R. Scully (Sarah R. Peace with him on the brief) of Sherman & Howard L.L.C., 

Denver, Colorado, for Defendant-Appellant. 

Stanley M. Gosch of Rosenblatt & Gosch, P.L.L.C., Greenwood Village, Colorado, for 

Plaintiff-Appellee. 

Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and O'BRIEN, Circuit 

Judge. 

O’BRIEN, Circuit Judge. 

I. Introduction 

Avaya Inc. (“Avaya”) appeals from the district court’s ruling compelling 

arbitration of its labor dispute with the Communication Workers of America (“CWA”) 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 11, 2012

Elisabeth A. Shumaker 

Clerk of Court
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over the legal status of a class of Avaya employees called “backbone engineers.” The 

union views the backbone engineers as non-represented “occupational” employees and 

legitimate objects for its organizing campaigns, while Avaya sees them as managers 

outside the scope of the company’s labor agreements. CWA contends the parties’ 

collective bargaining agreement (“CBA”) requires any dispute over the status of 

backbone engineers to be resolved in arbitration. Avaya maintains the parties did not 

consent to arbitrate the status of its backbone engineers and accuses CWA of trying to 

unilaterally enlarge the CBA to encompass disputes over company management. Having 

reviewed the CBA and the evidence submitted to the district court, we agree with 

Avaya’s position and reverse the district court’s order compelling arbitration. 

II. Background 

A. The Collective Bargaining Agreement 

The CBA between Avaya and CWA governs the employment conditions of Avaya 

employees who have elected to be represented by the CWA in labor disputes with 

company management. This group, known as the “bargaining unit,” consists of 

occupational employees whose titles are listed in the CBA; it does not include 

management or non-represented employees, nor does it list backbone engineers among 

the represented members. Most important for this appeal are Articles 9 and 10, which lay 

out the grievance-and-arbitration process governing labor disputes arising during the term 

of the CBA. The procedures described in these articles make up the exclusive process for 

resolving “employee disputes” under the CBA. (App. App’x 32.) “If, at any time, a 
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difference arises between the Company and the Union regarding the true intent and 

meaning of a provision under [this Agreement], or a question as to the performance of 

any obligation hereunder,” the grievance procedures shall be used to settle the 

differences. (App. App’x 35.) A grievance is “a complaint involving the interpretation 

or application of any of the provisions of [the CBA], or a complaint that an employee(s) 

has in any manner been unfairly treated.” (App. App’x 32.) 

The grievance procedure consists of three steps. Each step requires written notice 

of the grievance (or, in the later steps, of the grievance appeal) and a meeting to discuss 

the grievance involving officials from both the union and the company. The participating 

officials become progressively more senior as the process evolves, and by step three the 

discussions involve the union’s vice president and the company’s vice president of labor 

relations. Only when these steps have been exhausted and no resolution reached can the 

parties resort to arbitration, “it being understood that the right to require arbitration 

extends only to matters expressly set forth in this Article and which are not otherwise 

expressly excluded from arbitration.” (App. App’x 35.) 

B. The Neutrality Agreement 

Appended to the CBA is a National Memorandum of Understanding (“National 

Memorandum”) reflecting a trilateral agreement between Avaya, CWA, and the 

International Brotherhood of Electrical Workers (IBEW) and setting forth the parties’ 

understandings on issues like wages, hours, pensions, and other terms and conditions of 

employment. Over Avaya’s objection, the district court accepted CWA’s invitation to 
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treat the National Memorandum as a continuation of the CBA. By its terms, the court 

observed, the National Memorandum “binds the CWA and its local labor unions, the 

IBEW and its affiliated local unions, and Avaya to amend and extend” their collective 

bargaining agreements “so as to incorporate the items hereinafter set forth. . . .” (App. 

App’x 170.) The National Memorandum “shall become effective as to the CWA . . . only 

if ratified by the CWA membership [before July 29, 2009],” and the “amended collective 

bargaining agreements between the parties” shall terminate in June 2012. (App. App’x 

170.) The record does not reflect whether CWA ratified the National Memorandum 

before July 29, 2009, but since both parties recognize the National Memorandum as a live 

agreement governing consent elections for unrepresented employees, we assume it was 

timely ratified. 

Under a subsection relating to union-management relations, the National 

Memorandum includes a Neutrality Agreement governing union organizing efforts 

directed at unrepresented “non-management” employees. (App. App’x 246.) In 

recognition of the union’s goal of growing its membership, the agreement sets forth the 

“exclusive means” by which the union will conduct efforts to organize unrepresented 

non-management employees. (App. App’x 246.) The organizing and election procedures 

are meant to foster a “neutral” organizing environment in which the union is afforded a 

reasonable opportunity to communicate with non-management employees. (App. App’x 

246-48.) 
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Alleged violations of the neutrality provisions are to be “handled via the dispute 

resolution process contained in this Agreement.” (App. App’x 250.) Under that process, 

disputes arising during the course of an organizing effort will be addressed in the first 

place by the parties themselves, preferably at the local level, and in the event good faith 

efforts to resolve the matter fail, by a “third party neutral” (TPN) agreed upon by the 

parties. Compared to the three-step process prescribed in the CBA, dispute resolution 

under the Neutrality Agreement is fluid and informal, the only precondition to arbitration 

being a good faith attempt by the parties to resolve the matter. (App. App’x 250.) 

C. CWA’s Organizing Drive 

In March 2010, CWA commenced an organizing drive directed at Avaya 

backbone engineers located in Denver, Colorado. Backbone engineers provide 

engineering support for the company’s hardware and software products. They are 

classified as management in the corporate title guide and benefits program, and many of 

them dispatch and oversee the work of teams of technicians. 

In the chain of correspondence following the organizing drive, the parties laid out 

their positions on the status of the backbone engineers, the propriety of the organizing 

drive, and the appropriate course for resolving what looked by then to be an unavoidable 

conflict. Avaya insisted the Neutrality Agreement does not apply to the union’s 

organizing campaign, because backbone engineers are management employees outside 

the scope of the Neutrality Agreement. In Avaya’s view, the only method of organizing 

the backbone engineers is through the procedures set forth by the National Labor 
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Relations Board (NLRB). By contrast, CWA maintained that backbone engineers are 

non-represented occupational employees who are eligible to be organized under the 

consent-election procedures in the Neutrality Agreement. 

CWA proposed appointing a TPN to determine whether backbone engineers 

qualify as non-management within the meaning of the Neutrality Agreement. 

Maintaining the dispute falls outside the scope of the Neutrality Agreement (and 

therefore outside the scope of the Neutrality Agreement’s dispute-resolution process), 

Avaya refused. 

With no hope of a private settlement, CWA filed a formal grievance under the 

CBA accusing Avaya of improperly denying access to backbone engineers and then 

failing to follow the dispute-resolution procedures in the Neutrality Agreement. The 

remedy sought: order Avaya to choose a TPN to resolve the dispute over the status of the 

backbone engineers. Avaya rejected the grievance, and CWA appealed to step three of 

the CBA’s dispute-resolution process, at which point the parties held a settlement 

meeting but ultimately failed to resolve their dispute. 

Having exhausted the grievance procedure, CWA notified Avaya that it would be 

submitting the grievance to arbitration. Avaya refused arbitration and, in a June 8 letter, 

explained it’s position: the dispute was not arbitrable because the CBA does not apply to 

backbone engineers. 
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D. CWA’s Suit to Compel Arbitration 

On October 8, 2010, four months after Avaya’s June 8 refusal to arbitrate, CWA 

filed a complaint to compel arbitration in the District of Colorado. Contending the 

parties never agreed to arbitrate disputes over management employees, Avaya moved for 

summary judgment. It cited materials showing backbone engineers were classified as 

managers and provided benefits commensurate with those received by management. It 

also cited documents showing the parties’ understanding that “management” does refer 

not to “manager” as that term is defined by the federal labor laws, but rather to the class 

of Avaya employees who perform non-occupational duties. CWA submitted only one bit 

of evidence refuting Avaya’s designation of backbone engineers as management—an 

affidavit from a CWA official expressing his “belief” that backbone engineers are 

occupation employees eligible for union representation. 

Following cross motions for summary judgment, the district court denied Avaya’s 

motion and granted CWA’s. The court concluded the catch-all arbitration clause in the 

CBA covers the dispute over whether the backbone engineers’ status is arbitrable under 

the Neutrality Agreement. The court addressed Avaya’s contention about backbone 

engineers being managers outside the scope of the arbitration agreements, by saying 

“such [a] determination is an assessment of the underlying merits before an arbitrator 

and, as such, is not before me.”1

 

1

 The district court rejected Avaya’s additional arguments. First, it rejected 
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III. Discussion 

 Avaya challenges the order compelling arbitration on three grounds. It argues the 

parties’ dispute is not subject to the CBA’s arbitration clause,2

 because Backbone 

engineers are neither members of the bargaining unit nor eligible to become members in 

the future. They are management, Avaya insists, a class of workers whose terms of 

employment are outside the CBA and of no concern to the union. The district court did 

not challenge this assertion in concluding the dispute was arbitrable. Rather, it 

determined the question of arbitrability—whether the parties agreed to arbitrate the status 

of the backbone engineers under the Neutrality Agreement—was itself an arbitrable issue 

under the CBA. Avaya contends that this, too, was error: the scope of an arbitration 

clause is a matter for judicial resolution, and Avaya maintains the district court was 

required to examine the Neutrality Agreement at the outset to determine whether it 

 

Avaya’s argument that the complaint to compel arbitration was untimely because it was 

filed more than six months after Avaya first refused arbitration. The court concluded that 

the complaint had been filed within six months of Avaya’s refusal to arbitrate, which, 

contrary to Avaya’s assertions, came on June 8, shortly after CWA announced it would 

be submitting the grievance to arbitration under the CBA. Second, the court rejected 

Avaya’s contention that the case belongs before the National Labor Relations Board 

rather than a federal court; it explained that questions of contract interpretation, and 

particularly questions about the scope of an arbitration clause, are squarely within the 

jurisdiction of the federal courts.

 

2

 Avaya also argues (1) the complaint was untimely and should not have been 

considered, and (2) the district court lacked jurisdiction because CWA sought to arbitrate 

issues within the primary jurisdiction of the National Labor Relations Board. Because we 

agree with Avaya that the dispute is not arbitrable and that reversal is proper on that basis 

alone, we do not address these alternative arguments. 
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covered the dispute over backbone engineers. Had it done so, Avaya continues, the court 

would have been compelled to conclude the arbitration clause does not extend to disputes 

over employees, like backbone engineers, whom Avaya classifies as managers. 

We review a grant of summary judgment without deference, applying the same 

legal standard as the district court. Byers v. City of Albuquerque, 150 F.3d 1271, 1274 

(10th Cir. 1998). Summary judgment is appropriate if the “movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a matter 

of law.” Fed. R. Civ. P. 56(c). 

Because arbitration is a creature of contract, a party cannot be forced to arbitrate 

any issue he has not agreed to submit to arbitration. AT & T Tech., Inc. v. Commc’n 

Workers, 475 U.S. 643, 648 (1986); Local 5-857 Paper, Allied-Industrial, Chemical and 

Energy Workers Int’l Union v. Conoco, Inc., 320 F.3d 1123, 1126 (10th Cir. 2003). The 

Supreme Court has recognized a presumption in favor of arbitration in the labor relations 

context. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 

(1960). Accordingly, where a dispute arises under a collective bargaining agreement, it 

must be arbitrated unless “it may be said with positive assurance that the arbitration 

clause is not susceptible of an interpretation that covers the asserted dispute.” Id. Where, 

as here, the parties have agreed upon an inclusive arbitration clause covering any dispute 

arising out of the CBA, the court’s role is limited to determining whether a party is 

“making a claim which on its face is governed by the contract.” United Steelworkers v. 

Am. Mfg. Co., 363 U.S. 564, 567-68 (1960). 
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This case requires reconciling two competing principles governing judicial review 

in this area. First, courts (rather than arbitrators) must evaluate the threshold question of 

whether the parties consented to submit a particular dispute to arbitration. See AT & T 

Tech., 475 U.S. at 649. Second, courts making this determination are not to rule on the 

potential merits of the underlying claims. Id. These rules clash in cases where the merits 

of the claim are bound up with the question of arbitrability. See, e.g., Int’l Bhd. of Elec. 

Workers, Local 1 v. GKN Aerospace N. Am., Inc., 431 F.3d 624, 627 (8th Cir. 2005); Rite 

Aid of Penn. v. United Food and Comm. Workers Union, Local 1776, 595 F.3d 128, 141-

42 (3d Cir.), cert denied, 131 S. Ct. 187 (2010). On those occasions, the 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: “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.” Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 209 (1991) 

(quoting AT&T Tech, 475 U.S. at 560). This is a sensible compromise, not least because 

it avoids a situation where arbitrability hinges on what the party seeking arbitration 

characterizes as arbitrable. 

The federal courts of appeal have been faithful to the principle expressed in Litton. 

See, e.g., United Parcel Serv., Inc. v. Union de Tronquistas, Local 901, 426 F.3d 470, 

472-74 (1st Cir. 2005); Int’l Bhd. of Elec. Workers, 431 F.3d at 628-29 (“[I]f a court is 

entirely blind to the merits of a grievance, then the parties could be forced to arbitrate 
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grievances that have no relationship whatsoever to the collective bargaining 

agreement.”); see also Rite Aid of Penn., 595 F.3d at 136 (3d Cir. 2010) (“[W]here the 

merits and arbitrability questions are inextricably intertwined, a court’s arbitrability 

decision may, of necessity, touch incidentally on the merits.”); Indep. Lift Truck Builders 

Union v. Hyster Co., 2 F.3d 233, 236 (7th Cir. 1993) (“[A] court cannot address the 

arbitrability question without at the same time addressing the underlying merits of the 

dispute.”). And consistent with Litton, we have held that facts are more important than 

legal labels in determining whether a claim is arbitrable. See Chelsea Family Pharmacy, 

PLLC v. Medco Health Solutions, 567 F.3d 1191, 1197-98 (10th Cir. 2009); see also P & 

P Indus., Inc. v. Sutter Corp., 179 F.3d 861, 871 (10th Cir. 1999) (“[I]n determining 

whether a particular claim falls within the scope of the parties’ arbitration agreement, we 

focus on the factual allegations in the complaint rather than the legal causes of action 

asserted.”) (quotation marks omitted). 

In light of these principles, the district court was wrong to compel arbitration 

based on nothing more than CWA’s “belief” that backbone engineers were legitimate 

targets for an organizing drive. Concerned about intruding on the province of the 

arbitrator, the district court lost sight of its duty to determine whether the parties 

consented to arbitrate the dispute in the first place. Without a judicial determination of 

arbitrability, the scope of the arbitration clause became subject to the artful pleading of 

the union, resulting in CWA having “unilateral and unfettered discretion” to determine 
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when and on what basis Avaya had to participate in arbitration. See E.M. Diagnostic Sys. 

v. Local 169, Int’l Bhd. of Teamsters, 812 F.2d 91, 95 (3d Cir. 1987). 

This case well illustrates the point. Had the court addressed the threshold question 

of consent, it would have faced compelling evidence that the parties did not agree to 

submit the dispute over the backbone engineers to arbitration. Two key facts strongly 

suggest the dispute is not governed by the parties’ labor agreements. First, the parties 

understood the Neutrality Agreement, which by its terms applies only to “nonmanagement employees,” to govern consent elections for occupational workers. This 

much was clear from the record, which included an affidavit from Avaya’s Director of 

Labor Relations stating that the parties understood ‘management’ to denote “nonoccupational employees.” (App. App’x 381). But it was also clear from the parties’ use 

of the term in the CBA and National Memorandum. Although neither agreement defines 

“management,” context suggests the term refers not to a legal definition but rather to a 

readily identifiable class of non-occupational Avaya employees. In other words, 

“management” includes those employees whom Avaya designates as managers. 

If “management” meant something else, indeed if it meant anything but the 

opposite of “occupational employee,” otherwise straightforward terms governing the dayto-day dealings between company and union would become vexing and difficult to 

comply with. Take the provision about union activity on company premises, which 

permits union representatives to “enter upon Company premises after obtaining approval 

from a management representative of the Company” (App. App’x 28); or the provision 
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requiring starting rates to be granted “based on the Company’s non-management 

employee starting wage policy” (App. App’x 46); or the one about layoffs, which “shall 

be in inverse order of seniority” except for certain employees who have been “assigned to 

a management title” for more than a year prior to returning to the bargaining unit (App. 

App’x 48). These provisions presume a familiarity with Avaya management—an ability 

to readily distinguish it from non-management, which would be impractical if the parties 

had to consult a legal definition each time the meaning of “management” came into 

question. This would disrupt labor relations between the parties and turn day-to-day 

disputes—entry on company premises, the availability of certain starting rates—into 

highly fraught questions of legal interpretation. Given the frequency with which the 

undefined term appears in the labor agreements and the practical necessity of having a 

working definition, we think it clear from the record that “management” refers to those 

employees classified by Avaya as managers. 

 The second important fact the court would have noticed is this: backbone 

engineers are not among the employees classified by the company as “occupational.” 

That Avaya held this view is plain from its corporate title guide, which classifies 

backbone engineers as management, as well as from its benefits program, which creates 

separate plans for managers and occupational employees and specifies that backbone 

engineers will participate in only the former. But Avaya also introduced evidence of 

CWA sharing the company’s understanding of backbone engineers. Documents from 

previous grievance disputes show CWA representatives referring to backbone engineers 
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as management employees. In one grievance, CWA complained about backbone 

engineers performing dispatching and routing work that should have been reserved for 

occupational workers. In a second, the union complained about Avaya unlawfully 

shifting bargained-for work to management positions (like backbone engineers) in order 

to justify layoffs. Implicit in these grievances is the notion that backbone engineers are 

managers who should not be performing work reserved for represented employees—

further support for Avaya’s argument about a mutual understanding—backbone 

engineers are managers.

 The record provides forceful evidence that parties did not contractually consent to 

arbitrate disputes over Avaya’s backbone engineers. The Neutrality Agreement provides 

a process for resolving disputes arising from organizing drives directed at “nonmanagement employees.” If, as the evidence establishes, the parties understood the term 

“management” to denote non-occupational employees; and if there is no real dispute 

about the classification of backbone engineers as non-occupational; there can be only one 

conclusion to draw from the record: the parties did not consent to submit the underlying 

dispute to arbitration. 

CWA contends the district court had no business evaluating the Neutrality 

Agreement because the scope of the agreement was not before the court as a part of 

CWA’s motion to compel arbitration. Rather, the question presented to the district court 

concerned the scope of the CBA and the arbitrability of the underlying arbitration 

dispute; that is, the court was asked to decide whether the parties agreed to arbitrate their 
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disagreement over the status of backbone engineers under the Neutrality Agreement. In 

CWA’s view, a judicial determination that the parties did not consent to arbitrate the 

labor dispute under the Neutrality Agreement would be an answer to a question never 

asked. 

 The inquiry cannot be so easily compartmentalized. While it is true the question 

of arbitrability under the Neutrality Agreement was not directly before the court, it was a 

question the court was nevertheless required to answer. The presumption favoring 

arbitration does not apply when the dispute itself concerns arbitration. Peabody Holding 

Co. v. United Mine Workers, 665 F.3d 96, 102 (4th Cir. 2012). Such disputes are to be 

resolved by the courts unless the parties have agreed, in “clear and unmistakable” terms, 

to submit them to arbitration. Rent-A-Center, W., Inc. v. Jackson, 130 S.Ct. 2772, 2783 

(2010). 

 In this case it is neither “clear” nor “unmistakable” that the parties agreed the 

dispute resolution procedures in the CBA would cover arbitration disputes arising under 

the Neutrality Agreement. It is not enough for the parties to have an arbitration clause 

purporting to sweep up all disputes arising from the labor agreement. See Peabody 

Holding Co., 665 F.3d at 102 (“The ‘clear and unmistakable’ standard is exacting, and 

the presence of an expansive arbitration clause, without more, will not suffice.”). Yet 

that is precisely the type of clause we have here: “[the arbitration provisions] provide the 

mutually agreed upon and exclusive forums for resolution and settlement of employee 

disputes during the term of this agreement.” Nothing in that sentence suggests the parties 
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meant to reserve for the arbitrator disputes about arbitrability, much less disputes arising 

under an entirely independent arbitration clause in the Neutrality Agreement. 

 In the end, the district court had its presumptions backwards: instead of applying 

the presumption in favor of arbitration, it should have applied the presumption in favor of 

judicial resolution. The court should have begun its analysis by asking whether the 

parties did or said anything to rebut the presumption that questions about the arbitrability 

of an arbitration dispute will be resolved by the courts. Assuming the answer was no, the 

court should have then determined whether there was a fact issue regarding the parties’ 

consent to submit to arbitration the dispute over the backbone engineers. Any doubts in 

this regard could have been resolved in favor of arbitration, see United Steelworkers, 363 

U.S. at 582, but as we have already explained, the record leaves no room for doubt: a 

plain reading of the Neutrality Agreement confirms Avaya’s assertion that the parties 

never agreed to submit the dispute to arbitration. The district court should have denied 

CWA’s motion to compel arbitration and dismissed the case. 

 For the foregoing reasons, we REVERSE the district court’s order compelling 

arbitration and REMAND for resolution consistent with this opinion.