United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 11, 2021 Decided August 3, 2021

No. 20-7043

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,

APPELLANT

v.

AT&T INC.,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-01220)

Michael T. Anderson argued the cause for appellant. With 

him on the briefs was Arlus J. Stephens.

Maurice Baskin argued the cause and filed the brief for 

appellee.

Before: SRINIVASAN, Chief Judge, TATEL and RAO, 

Circuit Judges.

Opinion for the Court filed by Chief Judge SRINIVASAN.
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SRINIVASAN, Chief Judge: This case arises out of a 

contract between AT&T and a union representing company

employees. The contract provides for arbitration of disputes 

over certain subjects. When a dispute arose between the parties 

following AT&T’s acquisition of Time Warner, the union 

invoked the contract’s arbitration clause. The company refused 

to submit to arbitration, prompting the union to bring an action

seeking to compel arbitration. The district court determined 

that it had jurisdiction to decide whether the dispute is

arbitrable and then held that it is not.

We conclude that the parties’ agreement delegates 

threshold questions of arbitrability to an arbitrator. The 

question whether the parties’ dispute falls within the contract’s 

arbitration clause, then, is for an arbitrator, not a court, to 

decide. It follows that the district court lacked jurisdiction to 

determine whether the parties’ dispute must be submitted to 

arbitration.

I.

Communications Workers of America, AFL-CIO (the 

Union) is the certified union for non-management employees 

of AT&T, Inc. In April 2017, the Union and AT&T entered 

into a contract governing certification of the Union and the 

relationship between the parties. See Memorandum of 

Agreement Regarding Neutrality and Card Check Recognition

(the Agreement), App. 15–21. The Agreement requires the 

parties to arbitrate disputes over “the description of an 

appropriate unit for bargaining” and the definition of “nonmanagement” employees. Id. ¶¶ 2(c), 3(c)(1)–(2), 9, App. 15–

16, 19. All other disputes arising under the contract “shall not 

be subject to arbitration.” Id. ¶ 9, App. 19.
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For disputes that are subject to arbitration, the Agreement 

requires that they “be submitted to arbitration administered by, 

and in accordance with, the rules of the American Arbitration 

Association (AAA).” Id. ¶ 3(c)(1), App. 16. The AAA’s Labor 

Arbitration Rules in turn provide that “[t]he arbitrator shall 

have the power to rule on his or her own jurisdiction, including 

any objections with respect to the existence, scope, or validity 

of the arbitration agreement.” AAA Lab. Arb. R. 3(a), App.

57.

After AT&T acquired Time Warner in June 2018, the 

Union initiated discussions about “appropriate potential 

bargaining units in the newly acquired company.” App. 80. 

The parties, though, could not agree on which employees count 

as non-management workers (and are thus subject to the 

Agreement). The Union demanded arbitration under the 

Agreement, but AT&T disagreed that the Agreement required 

arbitration of the dispute.

The Union brought an action in the district court seeking 

to compel arbitration. AT&T moved to dismiss the Union’s 

complaint for failure to state a claim. In AT&T’s view, the 

parties’ dispute does not fall within the categories of disputes 

subject to arbitration under the Agreement—i.e., disputes about 

the scope of the bargaining unit and the definition of nonmanagement employees. The Union filed a cross-motion to 

compel arbitration. It argued that the dispute fits within the

scope of the Agreement’s arbitration coverage, and also that, 

under the Agreement, the question whether the dispute is 

arbitrable must be decided by an arbitrator rather than a court.

The district court granted AT&T’s motion to dismiss and 

denied the Union’s motion to compel arbitration. The court 

agreed with AT&T that the parties’ dispute does not lie within 

the categories of arbitrable disputes under the Agreement. And 
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the court held that it (as opposed to the arbitrator) could make 

that threshold determination of arbitrability. The Union now 

appeals.

II.

Two lines of precedent control the outcome of this case. 

First, our circuit precedent compels concluding that an

arbitration agreement’s incorporation of the AAA rules 

constitutes an assignment of the question of arbitrability—i.e., 

whether a given dispute is subject to arbitration—to the 

arbitrator. Second, when there is such an assignment, Supreme 

Court precedent forbids courts from speaking to the question 

of arbitrability and requires leaving it strictly to the arbitrator. 

The result here is that the question whether the parties’ dispute 

is arbitrable must be decided by an arbitrator, not a court.

A.

Under the Federal Arbitration Act, “arbitration is a matter 

of contract, and courts must enforce arbitration contracts 

according to their terms.” Henry Schein, Inc. v. Archer & 

White Sales, Inc., 139 S. Ct. 524, 529 (2019). “Applying the

Act,” the Supreme Court has “held that parties may agree to 

have an arbitrator decide not only the merits of a particular 

dispute but also gateway questions of arbitrability, such as 

whether the parties[’] . . . agreement covers a particular 

controversy.” Id. (internal quotation marks omitted). Such 

threshold arbitrability questions are generally presumed to be 

for a court to decide, see BG Grp. PLC v. Republic of 

Argentina, 572 U.S. 25, 34 (2014), but “parties may delegate 

[them] to the arbitrator” if their “agreement does so by ‘clear 

and unmistakable evidence,’” Henry Schein, 139 S. Ct. at 530

(quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 

944 (1995)).
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We have held that the requisite clear and unmistakable 

delegation occurs when the parties’ agreement incorporates 

arbitral rules that in turn assign questions of arbitrability to the 

arbitrator. See Chevron Corp. v. Ecuador, 795 F.3d 200, 207–

08 (D.C. Cir. 2015); see also LLC SPC Stileks v. Republic of 

Moldova, 985 F.3d 871, 878–79 (D.C. Cir. 2021). Here, the 

Agreement expressly incorporates the AAA rules for 

arbitration, and those rules in turn assign threshold questions of 

arbitrability to the arbitrator. Under our precedents, then, the 

parties clearly and unmistakably delegated arbitrability 

questions to the arbitrator by incorporating the AAA rules. Our 

decision in Chevron Corp. compels that conclusion.

First, the language of the arbitral rules in Chevron Corp. 

and in this case leaves no room for distinction. In Chevron

Corp., we considered the United Nations Commission on 

International Trade Law’s (UNCITRAL’s) arbitral rules. 

Those rules provide that “[t]he arbitral tribunal shall have the 

power to rule on objections that it has no jurisdiction, including 

any objections with respect to the existence or validity of the 

arbitration clause.” Chevron Corp., 795 F.3d at 207 (alteration 

in original) (quoting UNCITRAL Arb. Rs. art. 21 (1976)). The

AAA rules are materially identical, stating that “[t]he arbitrator 

shall have the power to rule on his or her own jurisdiction, 

including any objections with respect to the existence, scope, 

or validity of the arbitration agreement.” AAA Labor Arb. R. 

3(a), App. 57; see Dist. No. 1, Pac. Coast Dist., Marine Eng’rs’ 

Ben. Ass’n, AFL-CIO v. Liberty Maritime Corp., 998 F.3d 449, 

461 (D.C. Cir. 2021) (AAA rules and UNCITRAL rules 

contain “parallel provision[s] assigning to an arbitrator the 

authority to rule on her own jurisdiction”).

Second, the contractual language incorporating the 

UNCITRAL rules in Chevron Corp. mirrors the language of

the Agreement’s incorporation of the AAA rules here. In 
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Chevron Corp., a bilateral investment treaty between the 

United States and Ecuador provided that “the investor company 

may submit a matter to arbitration ‘in accordance with the 

Arbitration Rules of the United Nations Commission on 

International Trade Law (UNCITRAL).’” 795 F.3d at 207

(quoting treaty). And here, the Agreement provides that certain 

disputes “shall be submitted to arbitration administered by, and 

in accordance with, the rules of the American Arbitration 

Association (AAA).” Agreement ¶ 3(c)(1), App. 16. If the 

contract in Chevron Corp. incorporated the UNCITRAL rules 

by reference, see 795 F.3d at 207, then the Agreement in this 

case likewise incorporated the AAA rules by reference.

In short, because the contractual language incorporating 

the arbitral rules is the same in this case and Chevron Corp., 

and because the relevant language of the arbitral rules is also 

the same in the two cases, here, as in Chevron Corp., the parties 

have clearly and unmistakably “consented to allow the arbitral 

tribunal to decide issues of arbitrability.” Id. at 208; see Dist. 

No. 1, 998 F.3d at 461 (“[V]irtually every court of appeals to 

address the issue agrees that when parties expressly incorporate 

the AAA rules, they thereby clearly and unmistakably delegate 

to an arbitrator the power to decide gateway questions of 

arbitrability . . . .”).

B.

When, as in this case, “the parties’ contract delegates the 

arbitrability question to an arbitrator, a court may not override 

the contract. In those circumstances, a court possesses no 

power to decide the arbitrability issue.” Henry Schein, 139 S. 

Ct. at 529. Significantly, that rule holds “even if the court 

thinks that the argument that the arbitration agreement applies 

to a particular dispute is wholly groundless.” Id. Still, the court 
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must stay its hand and allow the arbitrator to decide whether 

the parties’ arbitration agreement covers the dispute.

AT&T nonetheless contends that a court should decide 

whether the dispute in this case is subject to arbitration under 

the Agreement. The company describes the parties’ underlying 

dispute in this case as involving “new acquisitions,” and 

submits that “the plain language of the [Agreement] establishes 

that the parties did not intend to delegate new entity acquisition 

issues to an arbitrator.” Appellee’s Br. 18. “Given this,”

AT&T maintains, “there is no basis for finding ‘clear and 

unmistakable’ evidence of delegation by the parties of any 

arbitrability question to an arbitrator, and the district court 

properly decided the question of arbitrability.” Id. 

That argument would seem to run headlong into the 

Supreme Court’s decision in Henry Schein. Under AT&T’s 

approach, a court first assesses whether the parties “intend[ed] 

to delegate [the] issues [at hand] to an arbitrator.” Id. If not, 

the “court properly decide[s] the question of arbitrability,”

id.—i.e., whether the dispute must be submitted to arbitration. 

That approach is circular: in determining who decides (the 

arbitrator or the court) whether a particular dispute must be 

submitted to arbitration, the court first determines whether the 

particular dispute must be submitted to arbitration. Yet if the 

court were to do so, it would have already decided that it (and 

not the arbitrator) determines whether the underlying dispute 

must be submitted to arbitration.

Henry Schein charts the opposite course. The Supreme 

Court described the “who decides” question as an 

“‘antecedent’” one—that is, one to be decided first. 139 S. Ct. 

at 529, 531 (quoting Rent-A-Center, West, Inc. v. Jackson, 561 

U.S. 63, 70 (2010)). In accordance with that understanding, the 

Court explained that “a court possesses no power to decide the 
8

arbitrability issue” if “the parties’ contract delegates the 

arbitrability question to an arbitrator.” Id. In other words, the

court must first determine if the parties’ agreement provides for 

the arbitrator to decide whether the underlying dispute must be 

submitted to arbitration, and if so, the court “possesses no 

power” to address the issue. Id. Under AT&T’s approach, by 

contrast, in determining whether the court has power to address

the arbitrability of the underlying dispute, the court would 

decide the very matter it may lack power to address.

AT&T attempts to distinguish Henry Schein based on the 

proportion of issues that the parties agree to submit to 

arbitration. In the company’s view, the rule of Henry Schein 

applies in the case of “broad arbitration agreements with 

limited exceptions.” Appellee’s Br. 19 (emphasis removed). 

But this case, AT&T asserts, involves “an agreement limiting 

arbitration to one narrow band of disputes.” Id. at 21.

Once again, the company’s argument is difficult to 

reconcile with Henry Schein. Any arbitration agreement will 

need to define the set of issues that it makes subject to 

arbitration. And however broad or narrow that set may be, 

questions can arise at the margins as to whether a particular 

dispute fits within its boundaries. In that event, Henry Schein

holds, if the parties clearly and unmistakably assign threshold 

arbitrability questions to the arbitrator, then the question 

whether the “particular dispute” is arbitrable is exclusively one 

for the arbitrator, not a court. 139 S. Ct. at 529.

In addition, the criterion suggested by AT&T—how broad 

the arbitration agreement is considered to be—would raise 

significant questions of administration. How are courts to 

measure whether an arbitration agreement is sufficiently 

broad? Would breadth be based strictly on an effort to count 

the number of issues that are subject to arbitration against some 
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(seemingly elusive) count of the number of issues that are not? 

If the agreement contemplates arbitration of a relatively small 

number of issues, but those issues will likely account for the 

bulk of the disputes between the parties, would the arbitration 

agreement count as a broad one? And apart from the number 

of the issues and the frequency with which they arise, how 

about their importance to the parties: should it matter how 

fundamental the arbitrable issues may seem to the contracting 

parties, and, if so, how would that be assessed?

Rather than adopt an approach calling for an uncertain 

inquiry into the relative breadth of an arbitration agreement, we 

adhere to the straightforward rule we understand Henry Schein

to have established: once the parties subject some set of issues 

to an arbitrator for resolution, and once the parties clearly and 

unmistakably assign to an arbitrator the authority to decide 

whether disputes fit within that set of issues, the question 

whether a particular dispute is arbitrable is strictly for the 

arbitrator, not a court. Pursuant to that understanding, the 

district court in this case lacked jurisdiction to decide whether 

the parties’ dispute should be submitted to arbitration. That is 

for the arbitrator to decide.

* * * * *

For the foregoing reasons, we vacate the judgment of the 

district court and remand for further proceedings consistent 

with this opinion.

So ordered.