Reinsurance & Arbitration Focus

The Sixth Circuit Court of Appeals recently concluded that a grievance by a Kroger union was included within the scope of an arbitration clause in a collective bargaining agreement.

Kroger and the International Brotherhood of Teamsters, Local Union No. 413, entered into a collective bargaining agreement that contained a broad arbitration clause that covered employee grievances. The agreement defined "grievance" as "a dispute between the Employer and employee as to the interpretation or application of any provisions of th[e] Agreement and is limited to the express terms and provisions of th[e] Agreement."

The agreement also contained provisions regarding the Kroger Employees Retirement Benefit Plan. Beginning in 2001, Kroger provided retirement benefits through the Kroger Consolidated Retirement Benefit Plan. In 2017, however, Kroger terminated the consolidated benefit plan and replaced it with a spin-off plan for union employees. Kroger also provided other new retirement options - such as lump-sum payments and a 401(k) - to non-union employees.

A union steward filed a grievance regarding the retirement benefit changes, but Kroger refused to arbitrate the grievance. Kroger claimed the grievance did not fall within the scope of the collective bargaining agreement's arbitration clause. The union then filed suit under the Labor Management Relations Act seeking to compel arbitration. The district court agreed that arbitration was warranted.

Kroger appealed the district court's judgment to the Sixth Circuit, which affirmed.

The Sixth Circuit noted that there is a presumption of arbitration under the LMRA. It also explained that the arbitration clause at issue was broad and that the presumption in favor of arbitration was therefore particularly warranted in this case. Nevertheless, the court found that the collective bargaining agreement was ambiguous with respect to whether the grievance was covered. Applying the presumption in favor of arbitration, the Sixth Circuit therefore analyzed whether the grievance was expressly excluded from the arbitration clause. The court held that it was not because the "arbitration clause [at issue] contain[ed] no specific exclusions exempting specific disputes." The court also rejected Kroger's argument that the grievance was exempted by the consolidated benefit plan, which Kroger claimed was incorporated into the collective bargaining agreement. The court explained that Kroger could not "show that the [consolidated benefit plan] was clearly identified in [the collective bargaining agreement] and that the Union would not be surprised or face hardship with its incorporation." The Sixth Circuit also rejected Kroger's attempt to rely on extrinsic evidence, explaining that the evidence spoke "to the merits of the case," not arbitrability.

International Brotherhood of Teamsters, Local Union No. 413 v. Kroger Co., No. 21-3228 (6th Cir. Nov. 24, 2021).