Petition for Writ of Certiorari — Kroger Limited Partnership I, Petitioner v. United Food & Commercial Workers, Local 1995

Supreme Court briefMar 15, 2023

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No. 22In the

Supreme Court of the United States

Kroger Limited Partnership I,

Petitioner,

United Food & Commercial Workers,

Local 1995,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Patricia A nderson Pryor

Counsel of Record

Jackson Lewis P.C.

PNC Center

201 East Fifth Street, 26th Floor

Cincinnati, OH 45202

(513) 898-0050

patricia.pryor@jacksonlewis.com

Counsel for Petitioner

318748

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

1. Does the universal standard for judgment on the

pleadings apply to a Rule 12(c) motion to compel

a labor arbitration or does the general principle

of presumption in favor of arbitrability mean

the federal courts must ignore the Rule 12(c)

standards?

2. Do the federal courts lose their authority to

decide arbitrability when to do so requires some

consideration of the merits of the underlying

dispute?

PARTIES TO THE PROCEEDING

Petitioner Kroger Limited Partnership I was the appellee

below.

Respondent United Food & Commercial Workers, Local

1995 was the appellant below.

iii

CORPORATE DISCLOSURE STATEMENT

Pursuant to SCR 29.6, Kroger Limited Partnership I

makes the following disclosure:

Kroger Limited Partnership is an affiliate of The Kroger

Company, which is publicly traded on the New York Stock

Exchange under the ticker name, KR.

RELATED CASES

United Food & Commercial Workers, Local 1995 v. The

Kroger Co., et al., No. 3:20-cv-00948, U.S. District Court

for the Middle District of Tennessee. Judgment entered

January 7, 2022.

United Food & Commercial Workers, Local 1995 v. The

Kroger Co. et al., No. 22-5085, U.S. Court of Appeals for

the Sixth Circuit. Judgment entered October 14, 2022.

Order denying petition for en banc rehearing entered

December 19, 2022.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii

CORPORATE DISCLOSURE STATEMENT . . . . . . iii

RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vii

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTIT U TIONA L A N D STAT U TORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3

REASONS FOR GRANTING REVIEW . . . . . . . . . . . 8

I. THE DECISION BELOW CONFLICTS

WITH THIS COURT’S PRECEDENT

HOLDING THAT THE PRESUMPTION

OF ARBITRA BILIT Y DOES NOT

A FFECT RU LE 1 2 (c) PLEADING

REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . 9

Table of Contents

Page

II. THE DECISION BELOW CONFLICTS

WITH THIS COURT’S PRECEDENT;

FEDERAL COURTS MUST DECIDE

ARBITRABILITY EVEN IF DOING

SO REQUIRES CONSIDERATION

OF THE MERITS . . . . . . . . . . . . . . . . . . . . . . . . 11

III. THIS CASE IS THE PROPER VEHICLE . . 14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

vii

TABLE OF CITED AUTHORITIES

Page

Cases

Beal v. Mo. Pac. R.R. Corp.,

312 U.S. 45 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Communications Workers of America v.

Avaya, Inc.,

693 F.3d 1295 (10th Cir. 2012) . . . . . . . . . . . . . . . . . . 13

Dist. No. 1., Pac. Coast Dist., Marine Eng’rs

Beneficial Ass’n v. Liberty Mar. Corp.,

933 F.3d 751, 443 U.S. App. D.C. 29

(D.C. Cir. 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Indep. Lift Truck Builders Union v. Hyster Co.,

2 F.3d 233 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . 13-14

International Brotherhood of Electrical Workers

v. GKN Aerospace North America, Inc.,

431 F.3d 624 (8th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 13

Litton Financial Printing Division v. National

Labor Relations Board,

501 U.S. 190, 111 S. Ct. 2215, 115 L. Ed. 2d 177

(1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 12, 13, 14

Local 827, IBEW v. Verizon New Jersey, Inc.,

458 F.3d 305 (3d Cir. Aug. 17, 2006) . . . . . . . . . . . . . 10

viii

Cited Authorities

Page

Newspaper Guild of St. Louis, Local 36047,

TNG-CWA v. St. Louis Post Dispatch, LLC,

641 F.3d 263 (8th Cir. 2011) . . . . . . . . . . . . . . . . . . . . 13

Rite Aid of Pennsylvania, Inc. v. United Food &

Commercial Workers Union, Local 1776,

595 F.3d 128 (3d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . 13

United Steel Workers Local 850L v.

Cont’l Tire North Am., Inc.,

568 F.3d 158 (4th Cir. 2009) . . . . . . . . . . . . . . . . . . . . 14

Statutes and Other Authorities

28 U.S.C. § 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

29 U.S.C. § 185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5

Federal Rule of Civil Procedure

12(c) . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 6, 8, 9, 10, 11, 14

U.S. Sup. Ct. R. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully submits this petition for a writ

of certiorari to review the judgment of the United States

Court of Appeals for the Sixth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Sixth Circuit is reported at 51 F. 4th 197 and

reproduced at Appendix (“App.”) 1a – 33a. The judgment

of the District Court dismissing The Kroger Co. without

prejudice is unpublished but available at 2022 U.S. Dist.

LEXIS 3479 and is reproduced at App. 34a – 48a. The

judgment of the District Court granting United Food &

Commercial Workers, Local 1995’s motion for judgment

on the pleadings is unpublished but available at 2021 U.S.

Dist. LEXIS 189756 and is reproduced at App. 50 a-52a.

JURISDICTION

The Sixth Circuit filed its published decision on

October 14, 2022. The court denied Petitioner’s request for

rehearing en banc on December 19, 2022. App. 77a-78a.

This petition is due on March 20, 2023. U.S. Sup. Ct. R. 13.

This petition is thus timely, and the Court has jurisdiction

under 28 U.S.C. §1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Respondent brought this case under Section 301 of

Labor Management Relations Act of 1947, 29 U.S.C. § 185,

which states:

(a)Venue, amount, and citizenship

Suits for violation of contracts between an employer and a

labor organization representing employees in an industry

affecting commerce as defined in this chapter, or between

any such labor organizations, may be brought in any

district court of the United States having jurisdiction of

the parties, without respect to the amount in controversy

or without regard to the citizenship of the parties.

(b)Responsibility for acts of agent; entity for purposes

of suit; enforcement of money judgments

Any labor organization which represents employees in

an industry affecting commerce as defined in this chapter

and any employer whose activities affect commerce as

defined in this chapter shall be bound by the acts of

its agents. Any such labor organization may sue or be

sued as an entity and in behalf of the employees whom it

represents in the courts of the United States. Any money

judgment against a labor organization in a district court

of the United States shall be enforceable only against

the organization as an entity and against its assets, and

shall not be enforceable against any individual member

or his assets.

(c)Jurisdiction

For the purposes of actions and proceedings by or against

labor organizations in the district courts of the United

States, district courts shall be deemed to have jurisdiction

of a labor organization (1) in the district in which such

organization maintains its principal office, or (2) in any

district in which its duly authorized officers or agents are

engaged in representing or acting for employee members.

(d)Service of process

The service of summons, subpena, or other legal process of

any court of the United States upon an officer or agent of a

labor organization, in his capacity as such, shall constitute

service upon the labor organization.

(e)Determination of question of agency

For the purposes of this section, in determining whether

any person is acting as an “agent” of another person so

as to make such other person responsible for his acts,

the question of whether the specific acts performed were

actually authorized or subsequently ratified shall not be

controlling.

The Union moved for judgment on the pleadings under

Federal Rule of Civil Procedure 12(c), which states:

pleadings are closed—but early enough not to delay

trial—a party may move for judgment on the pleadings.

STATEMENT OF THE CASE

This case is about whether a collective bargaining

agreement between Respondent, United Food and

Commercial Workers Union, Local 1995, (the “Union”)

and Petitioner Kroger Limited Partnership I (“KLPI”)

requires arbitration where the Union seeks to expand

the representational scope of the collective bargaining

agreement to cover a separate entity’s workforce that

performs work expressly excluded from the collective

bargaining agreement’s coverage. The procedural posture

requires the Court to take KLPI’s version of the facts as

true. App. 23a.

KLPI is a subsidiar y of The K roger Co.

(“Kroger”). App. 2a. In part, KLPI operates

and manages Kroger-branded retail stores

in Tennessee. Id. It has its own collective

bargaining agreement with the Union. Id. The

Union represents “all full-time and part-time

employees” in KLPI’s stores that are located

in the “Nashville Division,” which includes

Nashville, Tennessee and the greater Knoxville,

Tennessee area. Id. The collective bargaining

agreement covers employees who perform

services connected to handling merchandise “for

sale” in KLPI’s “retail establishments.” Id.

In mid-2020, The Kroger Co.’s “Supply Chain

Division” opened a Knoxville Local Fulfillment

Center. App. 3a. This facility operated as a

warehouse. Id. After the warehouse opened, the

Union filed a grievance with KLPI, claiming that

the Union represented workers at the facility.

Id. In its grievance, the Union claimed that

employees who pick and deliver orders at the

Knoxville Fulfillment Center were performing

“fundamental[ly] bargaining unit work.” Id.

The Union attempted to liken these workers

to unionized retail-store employees at KLPI’s

grocery stores and demanded that KLPI extend

union benefits to these warehouse workers. Id.

Because the Knoxville Local Fulfillment Center

is merely a warehouse, not a grocery or other

“retail” store and because KLPI did not operate

and had no relationship with the employees at the

facility, KLPI refused to process the grievance.

Id. The facility was not a “store covered by the

collective bargaining agreement.” Id.

The Union then pursued arbitration under Article

VII § D of the CBA, which governs grievances

that concern “the interpretation or application”

of the collective bargaining agreement. App. 3a4a. KLPI refused to arbitrate the grievance for

the same reasons that it refused to process the

Union’s grievance. Id.

2. The Union sued The Kroger Co. to compel

arbitration under § 301 of the Labor Management

Relations Act and, in its amended complaint,

added KLPI as a defendant. App. 4a. After both

defendants timely answered, the Union moved for

judgment on the pleadings under Federal Rule of

Civil Procedure 12(c). Id. The Union objected to

KLPI’s refusal to bind the non-KLPI employees

of the Knoxville Local Fulfillment Center to

the Nashville Division’s collective bargaining

agreement. App. 22a. KLPI argued in response

that the Union cannot compel KLPI to arbitrate

the grievance through an arbitration agreement

contained in the parties’ collective bargaining

agreement because the collective bargaining

agreement applies only to “employees” of KLPI

employed “in the stores” of KLPI, and because

KLPI denied a relationship with Fulfillment

Center employees in its answer. Id.

3. The U.S. District Court for the Middle District

of Tennessee held that the Union’s claim was

arbitrable under the collective bargaining

agreement against KLPI. App. 4a. The District

Court found that, because the Union sought only

arbitration, and not any other type of “judgment,”

the Fed. R. Civ. P. 12(c) standard was skewed

heavily in favor of the Union. App. 62a. Citing

federal law’s “heavy preference” for arbitration,

the district court stated that it could not say with

assurance that the only reasonable interpretation

of the collective bargaining agreement excluded

the grievance from arbitration. App. 64a. The

district court rejected KLPI’s argument that

the merits are bound up with the question

of arbitrability, stating that the “question of

arbitrability is easily separable from the merits

of the claim.” App. 72a. The district court also

rejected KLPI’s argument that the Union’s

claim is preempted by the NLRB’s jurisdiction.

App. 73a. The district court deferred entering

judgment at this time because the court decided

that judgment was warranted against one, but

not both, defendants. App. 75a.

On January 7, 2022, the district court dismissed

The Kroger Co. without prejudice. App. 48a.

The court entered judgment on the pleadings

against KLPI and compelled KLPI to arbitrate

the grievance. Id.

The Sixth Circuit Court of Appeals affirmed,

agreeing with the district court that the Union’s

grievance fell within the substantive scope of the

arbitration agreement. App. 7a. The Court of

Appeals applied the presumption of arbitrability

to reach this conclusion. Id. The Sixth Circuit

stated that no collective bargaining agreement

provisions exclude the grievance from arbitration

and that KLPI did not present “forceful evidence

of a purpose to exclude the claim from arbitration.”

App. 8a. The Sixth Circuit agreed that the issue

of arbitrability and the merits of the lawsuit

can be separated. App. 10a. The Sixth Circuit

also agreed with the district court’s rejection of

KLPI’s jurisdictional argument. App. 21a.

Judge Larson filed a thorough dissent. App.

22a. She noted that, taking KLPI’s claims as

true, the Union’s motion for judgment on the

pleadings fails. Id. Specifically, taking as false

the Union’s assertion that the Fulfillment Center

workers are KLPI “employees” working in a

KLPI “store” such that the arbitration in the

collective bargaining agreement applies, KLPI’s

denials prevail and judgment on the pleadings is

improper. App. 24a. Judge Larson noted that the

presumption of arbitrability does not change this

result. App. 25a. Further, Judge Larson argued

that this Court’s decision in Litton Financial

Printing Division v. National Labor Relations

Board, 501 U.S. 190, 111 S. Ct. 2215, 115 L. Ed.

2d 177 (1991), directed courts to interpret the

underlying agreement when necessary to fulfill

the duty to decide questions of arbitrability,

even when that also means deciding the merits

of the case. App. 28a. Judge Larson noted that

the majority opinion wrongfully assumed that

Litton applied only to cases involving expired

bargaining agreements, even though “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”. App. 29a.

On December 19, 2022, the Sixth Circuit denied

KLPI’s petition for rehearing en banc, finding

that the issues raised in the petition were fully

considered already. App. 77a-78a.

REASONS FOR GRANTING REVIEW

This Court’s review is warranted for the following

reasons. First, in ruling that the general presumption in

favor of arbitrability means that the federal courts can

ignore the universal pleading requirements under the

Rule 12(c) of the federal Rules of Civil Procedure, the

decision below conflicts with the Court’s precedents and

splits with other circuit courts which have adhered to the

Court’s precedents. Second, the ruling below, in direct

conflict with this Court’s precedent, excuses the federal

courts from their responsibility to decide the arbitrability

of a labor dispute. This Court has ruled that federal courts

must decide arbitrability even when to do so requires some

consideration of the merits of the underlying dispute. In

ruling otherwise, the Sixth Circuit decision also splits

with other circuit courts, all of which have followed the

Court’s precedent. Both holdings of the decision below

have the effect – without precedent – of restricting the

federal courts’ primary role in deciding arbitrability of

labor disputes. Finally, this case provides an excellent

vehicle because the decision below is a final judgment

on a clean set of facts on a motion for judgment on the

pleadings under Rule 12(c).

The resulting effect of the decision below would be far

reaching. The decision will encourage unions to compel

arbitration against unrelated entities who are not parties

to their collective bargaining agreement, and to force

arbitration on the pleadings alone simply because the

union has alleged in its complaint that such are related.

The use of the presumption of arbitrability in this way

is an unwarranted abandonment of the federal courts

‘duty to decide arbitrability and the abandonment of the

long established rules of pleading and Rule 12(c). If it is

left to stand, the Panel’s decision could encourage any

party to an arbitration agreement to attempt to compel

arbitration against unrelated entities in the hopes that

an arbitrator (who is not bound by established principles

of contract interpretation or precedent) will expand the

labor agreement well beyond what the parties clearly

intended. Moreover, since arbitration is now used in so

many areas in addition to labor, it is important that federal

courts not allow misuse and misapplication of the general

presumption in favor of arbitrability.

THE DECISION BELOW CONFLICTS WITH

THIS COURT’S PRECEDENT HOLDING THAT

THE PRESUMPTION OF ARBITRABILITY

DOES NOT AFFECT RULE 12(c) PLEADING

REQUIREMENTS.

The Sixth Circuit Court of Appeals inexcusably

ignored this Court’s precedent when it incorrectly

held that the presumption of arbitrability trumps wellestablished 12(c) standards. This Court has established

that Rule 12(c) requires that facts denied by an answer

to a complaint must be taken as false when assessing a

plaintiff’s Rule 12(c) motion. Beal v. Mo. Pac. R.R. Corp.,

312 U.S. 45, 51 (1941). Several courts, unlike the Sixth

Circuit in this case, have properly applied this standard.

See e.g. Dist. No. 1., Pac. Coast Dist., Marine Eng’rs

Beneficial Ass’n v. Liberty Mar. Corp., 933 F.3d 751, 761,

443 U.S. App. D.C. 29 (D.C. Cir. 2019) (labor arbitration);

Local 827, IBEW v. Verizon New Jersey, Inc., 458 F.3d

305 (3d Cir. Aug. 17, 2006) (labor arbitration). If the

presumption of arbitrability were applied consistent with

the Sixth Circuit’s opinion, the established 12(c) standard

would be effectively nullified.

Applying this Court’s established 12(c) principles,

this case is quite simple. In its answer, KLPI denied any

relationship with the employees of the Knoxville Local

Fulfillment Center. This alone refutes the allegations

in the Complaint regarding KLPI’s relationship with

Fulfillment Center employees for purposes of a Rule

12(c) motion. In addition to its denial, KLPI affirmatively

stated that it had no relationship to the Fulfillment Center

employees in a letter attached to the Complaint. Because

the lower courts were required to take this statement as

true in the Rule 12(c) context, KLPI has no relationship

with Fulfillment Center employees. This is true regardless

of what the Union alleged in the Complaint, because these

allegations must be taken as false when KLPI denied

them.

With this in mind, it is obvious that the parties’

bargaining agreement and its arbitration provision do not

apply to the Union’s grievance relating to Knoxville Local

Fulfillment Center employees. Specifically, the bargaining

agreement applies only to KLPI “employees” employed

in KLPI-operated “stores,” and not to the employees of

the non-retail Knoxville warehouse. Applying the proper

standard, the proper result is clear. The District Court’s

judgment on the pleadings for the Union was improper,

as was the Sixth Circuit’s affirming this judgment.

The Sixth Circuit majority opinion attempts to

ignore KLPI’s denials in its answer and improperly puts

the burden on KLPI to make allegations about the true

employer of the Fulfillment Center employees, Vitacost.

com, in its answer. But this Court’s established precedent

requires denials alone to controvert facts of the complaint

for a Rule 12(c) motion. And, regardless, KLPI did “allege”

its lack of relationship with Fulfillment Center employees

in the letter attached to the amended Complaint.

The presumption of arbitrability does not change this

result. The presumption should only be applied after the

court applies the language of the arbitration agreement

to the facts. See Liberty Mar. Corp., 933 F.3d at 763. With

the facts properly construed in KLPI’s favor under the

12(c) standard, it is clear that the dispute falls outside of

the scope of the bargaining agreement, and that the Sixth

Circuit erroneously held otherwise.

II. THE DECISION BELOW CONFLICTS WITH THIS

COURT’S PRECEDENT; FEDERAL COURTS

MUST DECIDE ARBITRABILITY EVEN IF

DOING SO REQUIRES CONSIDERATION OF

THE MERITS.

By refusing to consider the merits of this case when

doing so is necessary to determine the arbitrability in this

case, the Sixth Circuit misapplied this Court’s precedent

that has been on the books for decades. This Court, in

Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (1991),

ruled that federal courts must decide whether the parties

agreed to arbitrate a dispute and that courts “cannot

avoid that duty because [to do so] requires us to interpret

a provision of the bargaining agreement” 501 U.S. at 209.

This is exactly the situation the Sixth Circuit faced.

KLPI denied that it employed the Knoxville Local

Fulfillment Center workers. Because of this, KLPI

has no duty to arbitrate. Similarly, because there is no

relationship between the Fulfillment Center workers

and KLPI, the Union’s grievance does not fall within

the scope of the bargaining agreement. The question of

arbitrability is inextricably intertwined with the merits

of this case, so under Litton the federal court must decide

the issue rather than abstaining and leaving it instead for

the arbitrator to decide.

The Sixth Circuit majority groundlessly limits Litton

to that case’s specific facts, saying that it only applies when

the question of arbitrability involves the interpretation and

effect of the arbitration clause after contract expiration.

The Sixth Circuit opinion not only conflicts with Litton

itself, but also authoritative decisions from five other

Courts of Appeal which have applied Litton. The decision

below also creates a split among the circuit courts on this

issue.

The Eighth Circuit, expressly following Litton, has

held that a federal court must resolve the disputed issue

of whether a discharged individual was an employee

(and therefore covered by the bargaining agreement)

or a supervisor (when he would not be covered) to fulfill

its duty to decide arbitrability. App. 12a. International

Brotherhood of Electrical Workers v. GKN Aerospace

North America, Inc., 431 F. 3d 624 (8th Cir. 2005). The

court had to decide some of the underlying grievance’s

merits to fulfill this duty. Id. See also Newspaper Guild

of St. Louis, Local 36047, TNG-CWA v. St. Louis Post

Dispatch, LLC, 641 F. 3d 263 (8th Cir. 2011).

Similarly the Tenth Circuit, relying on Litton, stated

“[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.”

Communications Workers of America v. Avaya, Inc.,

693 F.3d 1295, 1300 (10th Cir. 2012). The Tenth Circuit

said that the district court had to decide whether the

individuals involved in the grievance were engineers who

were covered by the bargaining agreement or managers

who were not. This was true even if the determination

would involve consideration of the merits.

The Third Circuit agrees. It ruled that the federal

courts, and not the arbitrator, had to decide whether

a bargaining agreement applied to a new store when

resolution of this issue was required to decide arbitrability,

even when the issue also included consideration of the

grievance’s merits. Rite Aid of Pennsylvania, Inc. v.

United Food & Commercial Workers Union, Local

1776, 595 F.3d 128 (3d Cir. 2010). The Seventh Circuit

has similarly stated that “the rule that the courts must

decide arbitrator’s jurisdiction takes precedence over

the rule that courts are not to decide the merits of the

underlying dispute,” and “[i]f the court must, to decide

the arbitrability issue, rule on the merits, so be it.” Indep.

Lift Truck Builders Union v. Hyster Co., 2 F 3d 233, 236

(7th Cir. 1993). The Fourth Circuit has also acknowledged

that “courts are permitted some latitude to interpret

provisions of a bargaining agreement that impact the

underlying merits of the dispute when it is necessary to

determine whether the parties agreed to arbitrate the

dispute.” United Steel Workers Local 850L v. Cont’l Tire

North Am., Inc., 568 F.3d 158, 165 (4th Cir. 2009) (citing

Litton, 501 U.S. at 208-09).

If the Sixth Circuit had correctly applied Litton like

these other circuits have done, it would have reached a

different, and correct, result in this case.

III.

THIS CASE IS THE PROPER VEHICLE.

The questions presented are squarely implicated in

the Sixth Circuit’s published decision, with no vehicle

problems. As the Sixth Circuit’s opinion demonstrates,

the sole issue below is whether the Union’s grievance falls

within the scope of the arbitration agreement. The Sixth

Circuit addressed the issue of whether the presumption of

arbitrability applies to a 12(c) motion and whether courts

should consider the merits of the dispute when necessary

to determine arbitrability. The questions presented are

outcome-dispositive, and this Court’s intervention will

conclusively resolve not just the question presented, but

the entire case.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Patricia A nderson Pryor

Counsel of Record

Jackson Lewis P.C.

201 East Fifth Street,

26th Floor

Cincinnati, OH 45202

(513) 898-0050

patricia.pryor@

jacksonlewis.com

Counsel for Petitioner

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED OCTOBER 14, 2022 . . 1a

APPENDIX B — MEMORANDUM OPINION

OF THE UNITED STATES DISTRICT

COURT FOR THE MIDDLE DISTRICT OF

TENNESSEE, NASHVILLE DIVISION,

FILED JANUARY 7, 2022 . . . . . . . . . . . . . . . . . . . 34a

APPENDIX C — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE,

DATED NOVEMBER 16, 2021 . . . . . . . . . . . . . . . . 49a

APPENDIX D — MEMORANDUM OPINION

OF THE UNITED STATES DISTRICT

COURT FOR THE MIDDLE DISTRICT OF

TENNESSEE, NASHVILLE DIVISION,

FILED SEPTEMBER 30, 2021 . . . . . . . . . . . . . . . 52a

APPENDIX E — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

A PPEALS FOR THE SIXTH CIRCUIT,

FILED DECEMBER 19, 2022 . . . . . . . . . . . . . . . . 77a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH

CIRCUIT, FILED OCTOBER 14, 2022

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 22-5085

UNITED FOOD & COMMERCIAL WORKERS,

LOCAL 1995,

Plaintiff-Appellee,

KROGER CO.,

Defendant,

KROGER LIMITED PARTNERSHIP I,

Defendant-Appellant.

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.

October 14, 2022, Decided

October 14, 2022, Filed

Before: SILER, McKEAGUE, and LARSEN, Circuit

Judges. SILER, J., delivered the opinion of the court in

which McKEAGUE, J., joined. LARSEN, J., delivered a

separate dissenting opinion.

Appendix A

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.

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

Appendix A

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 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

Appendix A

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 v.

Cuyahoga Cnty., 997 F.3d 653, 659 (6th Cir. 2021) (citation

1. Upon the Union’s subsequent motion, the district court

dismissed The Kroger Company without prejudice. That order

is not on appeal.

Appendix A

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, 129 S. Ct. 1937, 173 L.

Ed. 2d 868 (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

Appendix A

F.2d 713, at *2 [published in full-text format at 1990 U.S.

App. LEXIS 18358] (6th Cir. 1990) (Table) (citing Nat’l

Metro. Bank v. United States, 323 U.S. 454, 456-57, 65 S.

Ct. 354, 89 L. Ed. 383 (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, 106 S. Ct. 1415, 89 L.

Ed. 2d 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 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, 130 S. Ct. 2847, 177 L.

Ed. 2d 567 (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

Appendix A

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 part-time

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 w ithin 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.

Appendix A

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] . . . 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.

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.

Appendix A

K LPI a lso p oi nt s t o t he prov i sion l i m it i ng

“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 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

10a

Appendix A

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

2. KLPI 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

11a

Appendix A

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 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

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 “store-access 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).

12a

Appendix A

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

3. Here, 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.

13a

Appendix A

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 Relations Board, 501 U.S. 190, 111

S. Ct. 2215, 115 L. Ed. 2d 177 (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, 80 S.

Ct. 1343, 4 L. Ed. 2d 1403 (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

14a

Appendix A

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, 200 L. Ed.

2d 889 (2018) (citing 29 U.S.C. § 157). When a Union

brings a claim “arguably subject to [section] 7 . . . of 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.

15a

Appendix A

[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, 79 S. Ct. 773, 3 L. Ed. 2d 775 (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 “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.” A lthough 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 socalled “initial decision in the representation area.”

16a

Appendix A

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

circumstance, our concurrent jurisdiction provides “an

independent forum for resolution of representational or

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

at 673.

17a

Appendix A

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 “new-store” 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”

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Appendix A

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.

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 467-68. 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 46971. 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

19a

Appendix A

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.”).

20a

Appendix A

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, 166 U.S.

App. D.C. 422 (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 14 4 - 47 (A mbro, 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.,

21a

Appendix A

375 U.S. 261, 272, 84 S. Ct. 401, 11 L. Ed. 2d 320 (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.

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.

22a

Appendix A

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.

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.4

4. The 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)

23a

Appendix A

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 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,

443 U.S. App. D.C. 29 (D.C. Cir. 2019); Beal v. Mo. Pac.

R.R. Corp., 312 U.S. 45, 51, 61 S. Ct. 418, 85 L. Ed. 577

(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

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.

24a

Appendix A

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

25a

Appendix A

to controvert facts of the complaint for a Rule 12(c) motion.

See Liberty Mar. Corp., 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).

26a

Appendix A

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, 106 S. Ct. 1415, 89 L.

Ed. 2d 648 (1980) (quoting United Steelworkers of Am. v.

Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80

S. Ct. 1347, 4 L. Ed. 2d 1409 (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 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

27a

Appendix A

“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, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (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).

28a

Appendix A

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

also means deciding the merits. 501 U.S. 190, 111 S. Ct.

2215, 115 L. Ed. 2d 177 (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

29a

Appendix A

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 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

30a

Appendix A

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

31a

Appendix A

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.

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.

T he T h i rd Ci rcu it ’s decision i n Rit e Ai d 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

32a

Appendix A

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 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

33a

Appendix A

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.

34a

Appendix B

APPENDIX B — MEMORANDUM

OPINION OF

THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF TENNESSEE,

NASHVILLE DIVISION, FILED JANUARY 7, 2022

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

NO. 3:20-cv-00948

JUDGE RICHARDSON

UNITED FOOD & COMMERCIAL WORKERS,

LOCAL 1995,

Plaintiff,

THE KROGER COMPANY and KROGER LIMITED

PARTNERSHIP I,

Defendants.

MEMORANDUM OPINION

Pending before the Court in this action is “Plaintiff’s

Motion to Dismiss Defendant The Kroger Company

Without Prejudice” (Doc. No. 42, “Motion.”).

This is an action in which the plaintiff seeks a

very specific and limited remedy. Specifically, Plaintiff

(“the Union”) brought this suit seeking to compel both

Defendants to resolve in arbitration an issue concerning

the application of a particular Collective Bargaining

35a

Appendix B

Agreement (“CBA”).1 (Doc. No. 1). Within approximately

70 days of filing this action, the Union filed a Rule 12(c)

motion for judgment on the pleadings seeking a judgment

affording it such relief. (Doc. No. 19). On September 30,

2021, the Court granted the Union’s motion with respect to

one Defendant but not the other; in particular, it ordered

Defendant Kroger Limited Partnership I (“KLPI”) to

arbitrate the applicable issue, but held that it could not,

at least at that juncture, likewise order Defendant The

Kroger Company to arbitrate, because it was not clear

based solely on the pleadings that The Kroger Company

was even a party to the CBA (Doc. Nos. 32 and 33).

Anticipating disagreement between the parties as to

how this entire case should proceed in light of the Court’s

finding that final judgment should be granted against

one Defendant but not (at least at that time) the other

Defendant, the Court wrote in its Order:

Before entering judgment against KLPI,

the Court seeks the parties’ input as to how

this case should proceed in light of this split

resolution. Thus, by October 15, 2021, the

parties shall file a joint notice (or, if necessary

in light of an inability to agree, separate

respective notices) as to whether KLPI should

be ordered to arbitration without The Kroger

Company, or whether a determination in this

lawsuit of whether The Kroger Company is a

party to the CBA (and thus should be sent to

1. This situation is to be contrasted with the situation where

a plaintiff files an action seeking damages and, in response, the

defendant asks the court to compel the plaintiff to submit the claim

to arbitration.

36a

Appendix B

arbitration along with KLPI) should be resolved

before KLPI is sent to arbitration.

(Doc. No. 33 at 1-2). In response to this dictate, after

obtaining a short extension of the October 15 deadline,

the parties (helpfully) filed a timely Joint Notice (Doc.

No. 37). As to Plaintiff’s position on the question(s) raised

by the Court, the Joint Notice advised, in pertinent part:

Plaintiff United Food & Commercial Workers,

Local 1995 intends to move this Court for an

order severing its claims against Defendant The

Kroger Company and dismissing such claims

without prejudice, in accordance with Rule 21

of the Federal Rules of Civil Procedure (or any

other applicable Rules). Once such an order is

issued, then Plaintiff will move for entry of

judgment against Defendant Kroger Limited

Partnership I (“KLP I”). If this Court is not

inclined to issue an order dismissing Defendant

The Kroger Company without prejudice, and

will only entertain an order dismissing such

claims with prejudice, then Plaintiff intends to

take appropriate discovery to support a motion

for summary judgment of its claims against

Defendant The Kroger Company.

(Id. at 1). And the Joint Notice stated Defendants’ position

on such question(s), in pertinent part, as follows:

The Court should resolve The Kroger Co.’s

obligation to arbitrate before ordering KLP

I to arbitrate, unless Plaintiff dismisses The

37a

Appendix B

Kroger Co. with prejudice. This would require

a case management order setting deadlines for

discovery, depositions, motions, and trial on the

issue of whether The Kroger Co. is signatory to

the bargaining agreement and obligated, along

with KLP I, to arbitrate the grievance.

(Id. at 2).

As foretold in the Joint Notice, on November 18,

2021, Plaintiff moved (via the Motion) for dismissal of The

Kroger Company without prejudice, pursuant to Federal

Rule of Civil Procedure 21. Plaintiff was sufficiently clear

that its request for dismissal was entirely dependent on

the dismissal being without prejudice, and the Court

therefore has construed the Motion (as it believes it is

properly authorized to do) as one seeking either dismissal

without prejudice, or no dismissal at all—which is to say

that (given the Court’s view of the Motion as all-or-nothing

in that sense) to grant the Motion means to dismiss The

Kroger Company without prejudice, and to deny the

Motion means not to dismiss The Kroger Company at all.

Defendants, not surprisingly or inappropriately, have

declined to suggest the alternative of dismissal with

prejudice. Like Plaintiff, and now the Court, Defendants

view the decision for the Court as whether to order that

The Kroger Company be dismissed without prejudice or

not be dismissed at all. 2

2. To the extent that Rule 21 would allow the Court “on its own”

to dismiss The Kroger Company with prejudice based on the view

that it would be “just” to do so, Fed. R. Civ. P. 21, the Court declines

to consider exercising such discretion to do so.

38a

Appendix B

The Court pauses to address the significance of this

decision. The significance turns on the precise nature of

the distinction between a dismissal “with prejudice” and

a dismissal “without prejudice,” a distinction that judges

and lawyers tend (in the undersigned’s view) to assume

they fully grasp but rarely actually fully articulate. The

Court will take care to articulate that distinction here,

so that it is clear that the Court understands precisely

the stakes here.

. . . Rule 41. . . in discussing the effect of

voluntary dismissal by the plaintiff, makes

clear that an “adjudication upon the merits” is

the opposite of a “dismissal without prejudice”:

“Unless other w ise stated in the

notice of dismissal or stipulation, the

dismissal is without prejudice, except

that a notice of dismissal operates

as an adjudication upon the merits

when filed by a plaintiff who has once

dismissed in any court of the United

States or of any state an action based

on or including the same claim.”