Granite Rock Co. v. International Brotherhood of Teamsters

(Slip Opinion) OCTOBER TERM, 2009 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

GRANITE ROCK CO. v. INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

No. 08–1214. Argued January 19, 2010—Decided June 24, 2010
In June 2004, respondent local union (Local), supported by its parent
international (IBT), initiated a strike against petitioner Granite
Rock, the employer of some of Local’s members, following the expira
tion of the parties’ collective-bargaining agreement (CBA) and an im
passe in their negotiations. On July 2, the parties agreed to a new
CBA containing no-strike and arbitration clauses, but could not reach
a separate back-to-work agreement holding local and international
union members harmless for any strike-related damages Granite
Rock incurred. IBT instructed Local to continue striking until Gran
ite Rock approved such a hold-harmless agreement, but the company
refused to do so, informing Local that continued strike activity would
violate the new CBA’s no-strike clause. IBT and Local responded by
announcing a company-wide strike involving numerous facilities and
workers, including members of other IBT locals.
Granite Rock sued IBT and Local, invoking federal jurisdiction
under §301(a) of the Labor Management Relations Act, 1947 (LMRA),
seeking strike-related damages for the unions’ alleged breach of con
tract, and asking for an injunction against the ongoing strike because
the hold-harmless dispute was an arbitrable grievance under the new
CBA. The unions conceded §301(a) jurisdiction, but asserted that the
new CBA was never validly ratified by a vote of Local’s members,
and, thus, the CBA’s no-strike clause did not provide a basis for
Granite Rock to challenge the strike. After Granite Rock amended
its complaint to add claims that IBT tortiously interfered with the
new CBA, the unions moved to dismiss. The District Court granted
IBT’s motion to dismiss the tortious interference claims on the
ground that §301(a) supports a federal cause of action only for breach
2 GRANITE ROCK CO. v. TEAMSTERS

Syllabus

of contract. But the court denied Local’s separate motion to send the
parties’ dispute over the CBA’s ratification date to arbitration, ruling
that a jury should decide whether ratification occurred on July 2, as
Granite Rock contended, or on August 22, as Local alleged. After the
jury concluded that the CBA was ratified on July 2, the court ordered
arbitration to proceed on Granite Rock’s breach-of-contract claims.
The Ninth Circuit affirmed the dismissal of the tortious interference
claims, but reversed the arbitration order, holding that the parties’
ratification-date dispute was a matter for an arbitrator to resolve un
der the CBA’s arbitration clause. The Court of Appeals reasoned that
the clause covered the ratification-date dispute because the clause
clearly covered the related strike claims; national policy favoring ar
bitration required ambiguity about the arbitration clause’s scope to
be resolved in favor of arbitrability; and, in any event, Granite Rock
had implicitly consented to arbitrate the ratification-date dispute by
suing under the contract.
Held:
1. The parties’ dispute over the CBA’s ratification date was a mat
ter for the District Court, not an arbitrator, to resolve. Pp. 6–20.
(a) Whether parties have agreed to arbitrate a particular dispute
is typically an “ ‘ issue for judicial determination,’ ” e.g., Howsam v.
Dean Witter Reynolds, Inc., 537 U. S. 79, 83, as is a dispute over an
arbitration contract’s formation, see, e.g., First Options of Chicago,
Inc. v. Kaplan, 514 U. S. 938, 944. These principles would neatly
dispose of this case if the formation dispute here were typical. But it
is not. It is based on when (not whether) the new CBA containing the
parties’ arbitration clause was ratified and thereby formed. To de
termine whether the parties’ dispute over the CBA’s ratification date
is arbitrable, it is necessary to apply the rule that a court may order
arbitration of a particular dispute only when satisfied that the par
ties agreed to arbitrate that dispute. See, e.g., id., at 943. To satisfy
itself that such agreement exists, the court must resolve any issue
that calls into question the specific arbitration clause that a party
seeks to have the court enforce. See, e.g., Rent-A-Center, West, Inc. v.
Jackson, ante, at 4–6. Absent an agreement committing them to an
arbitrator, such issues typically concern the scope and enforceability
of the parties’ arbitration clause. In addition, such issues always in
clude whether the clause was agreed to, and may include when that
agreement was formed. Pp. 6–7.
(b) In cases invoking the “federal policy favoring arbitration of
labor disputes,” Gateway Coal Co. v. Mine Workers, 414 U. S. 368,
377, courts adhere to the same framework, see, e.g., AT&T Technolo
gies, Inc. v. Communications Workers, 475 U. S. 643, and discharge
their duty to satisfy themselves that the parties agreed to arbitrate a
 Cite as: 561 U. S. ____ (2010) 3

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particular dispute by (1) applying the presumption of arbitrability
only where a validly formed and enforceable arbitration agreement is
ambiguous about whether it covers the dispute at hand and (2) order
ing arbitration only where the presumption is not rebutted, see, e.g.,
id., at 651–652. Local is thus wrong to suggest that the presumption
takes courts outside the settled framework for determining arbitra
bility. This Court has never held that the presumption overrides the
principle that a court may submit to arbitration “only those disputes
. . . the parties have agreed to submit,” First Options, supra, at 943,
nor that courts may use policy considerations as a substitute for
party agreement, see, e.g., AT&T Technologies, supra, at 648−651.
The presumption should be applied only where it reflects, and derives
its legitimacy from, a judicial conclusion (absent a provision validly
committing the issue to an arbitrator) that arbitration of a particular
dispute is what the parties intended because their express agreement
to arbitrate was validly formed, is legally enforceable, and is best con
strued to encompass the dispute. See, e.g., First Options, supra, at
944–945. This simple framework compels reversal of the Ninth Cir
cuit’s judgment because it requires judicial resolution of two related
questions central to Local’s arbitration demand: when the CBA was
formed, and whether its arbitration clause covers the matters Local
wishes to arbitrate. Pp. 7–13.
(c) The parties characterize their ratification-date dispute as a
formation dispute because a union vote ratifying the CBA’s terms
was necessary to form the contract. For purposes of determining ar
bitrability, when a contract is formed can be as critical as whether it
was formed. That is so where, as here, an agreement’s ratification
date determines its formation date, and thus determines whether its
provisions were enforceable during the period relevant to the parties’
dispute. This formation date question requires judicial resolution
here because it relates to Local’s arbitration demand in a way that
required the District Court to determine the CBA’s ratification date
in order to decide whether the parties consented to arbitrate the mat
ters the demand covered. The CBA requires arbitration only of dis
putes that “arise under” the agreement. The parties’ ratification-date
dispute does not clearly fit that description. But the Ninth Circuit
credited Local’s argument that the ratification-date dispute should be
presumed arbitrable because it relates to a dispute (the no-strike dis
pute) that does clearly “arise under” the CBA. The Ninth Circuit
overlooked the fact that this theory of the ratification-date dispute’s
arbitrability fails if, as Local asserts, the new CBA was not formed
until August 22, because in that case there was no CBA for the July
no-strike dispute to “arise under.” Local attempts to address this
flaw in the Circuit’s reasoning by arguing that a December 2004
4 GRANITE ROCK CO. v. TEAMSTERS

Syllabus

document the parties executed rendered the new CBA effective as of
May 1, 2004, the date the prior CBA expired. The Court of Appeals
did not rule on this claim, and this Court need not do so either be
cause it was not raised in Local’s brief in opposition to the certiorari
petition. Pp. 13–17.
(d) Another reason to reverse the Court of Appeals’ judgment is
that the ratification-date dispute, whether labeled a formation dis
pute or not, falls outside the arbitration clause’s scope on grounds the
presumption favoring arbitration cannot cure. CBA §20 provides, in
ter alia, that “[a]ll disputes arising under this agreement shall be re
solved in accordance with the [Grievance] procedure,” which includes
arbitration. The parties’ ratification-date dispute cannot properly be
said to fall within this provision’s scope for at least two reasons.
First, the question whether the CBA was validly ratified on July 2,
2004—a question concerning the CBA’s very existence—cannot fairly
be said to “arise under” the CBA. Second, even if the “arising under”
language could in isolation be construed to cover this dispute, §20’s
remaining provisions all but foreclose such a reading by describing
that section’s arbitration requirement as applicable to labor dis
agreements that are addressed in the CBA and are subject to its re
quirement of mandatory mediation. The Ninth Circuit’s contrary
conclusion finds no support in §20’s text. That court’s only effort to
grapple with that text misses the point by focusing on whether Gran
ite Rock’s claim to enforce the CBA’s no-strike provisions could be
characterized as “arising under” the agreement, which is not the dis
positive issue here. Pp. 17–18.
(e) Local’s remaining argument in support of the Court of Ap
peals’ judgment—that Granite Rock “implicitly” consented to arbitra
tion when it sued to enforce the CBA’s no-strike and arbitrable griev
ance provisions—is similarly unavailing. Although it sought an
injunction against the strike so the parties could arbitrate the labor
grievance giving rise to it, Granite Rock’s decision to sue does not es
tablish an agreement, “implicit” or otherwise, to arbitrate an issue
(the CBA’s formation date) that the company did not raise and has
always rightly characterized as beyond the arbitration clause’s scope.
Pp. 19–20.
2. The Ninth Circuit did not err in declining to recognize a new fed
eral common-law cause of action under LMRA §301(a) for IBT’s al
leged tortious interference with the CBA. Though virtually all other
Circuits have rejected such claims, Granite Rock argues that doing so
in this case is inconsistent with federal labor law’s goal of promoting
industrial peace and economic stability through judicial enforcement
of CBAs, and with this Court’s precedents holding that a federal
common law of labor contracts is necessary to further this goal, see,
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e.g., Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448, 451. The
company says the remedy it seeks is necessary because other poten
tial avenues for deterrence and redress, such as state-law tort claims,
unfair labor practices claims before the National Labor Relations
Board (NLRB), and federal common-law breach-of-contract claims,
are either unavailable or insufficient. But Granite Rock has not yet
exhausted all of these avenues for relief, so this case does not provide
an opportunity to judge their efficacy. Accordingly, it would be pre
mature to recognize the cause of action Granite Rock seeks, even as
suming §301(a) authorizes this Court to do so. That is particularly
true here because the complained-of course of conduct has already
prompted judgments favorable to Granite Rock from the jury below
and from the NLRB in separate proceedings concerning the union’s
attempts to delay the new CBA’s ratification. Those proceedings, and
others to be conducted on remand, buttress the conclusion that Gran
ite Rock’s assumptions about the adequacy of other avenues of relief
are questionable, and that the Court of Appeals did not err in declin
ing to recognize the new federal tort Granite Rock requests. Pp. 20–
25.
546 F. 3d 1169, reversed in part, affirmed in part, and remanded.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, GINSBURG, BREYER, and ALITO, JJ., joined,
and in which STEVENS and SOTOMAYOR, JJ., joined as to Part III. SO-
TOMAYOR, J., filed an opinion concurring in part and dissenting in part,
in which STEVENS, J., joined.
 Cite as: 561 U. S. ____ (2010) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–1214
_________________

GRANITE ROCK COMPANY, PETITIONER v.

INTERNATIONAL BROTHERHOOD

OF TEAMSTERS ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 24, 2010]

JUSTICE THOMAS delivered the opinion of the Court.
This case involves an employer’s claims against a local
union and the union’s international parent for economic
damages arising out of a 2004 strike. The claims turn in
part on whether a collective-bargaining agreement (CBA)
containing a no-strike provision was validly formed during
the strike period. The employer contends that it was,
while the unions contend that it was not. Because the
CBA contains an arbitration clause, we first address
whether the parties’ dispute over the CBA’s ratification
date was a matter for the District Court or an arbitrator to
resolve. We conclude that it was a matter for judicial
resolution. Next, we address whether the Court of Ap
peals erred in declining the employer’s request to recog
nize a new federal cause of action under §301(a) of the
Labor Management Relations Act, 1947 (LMRA), 61 Stat.
156, 29 U. S. C. §185(a), for the international union’s
alleged tortious interference with the CBA. The Court of
Appeals did not err in declining this request.
2 GRANITE ROCK CO. v. TEAMSTERS

Opinion of the Court

I
Petitioner Granite Rock Company is a concrete and
building materials company that has operated in Califor
nia since 1900. Granite Rock employs approximately 800
employees under different labor contracts with several
unions, including respondent International Brotherhood of
Teamsters, Local 287 (Local). Granite Rock and Local
were parties to a 1999 CBA that expired in April 2004.
The parties’ attempt to negotiate a new CBA hit an im
passe and, on June 9, 2004, Local members initiated a
strike in support of their contract demands.1
The strike continued until July 2, 2004, when the par
ties reached agreement on the terms of a new CBA. The
CBA contained a no-strike clause but did not directly
address union members’ liability for any strike-related
damages Granite Rock may have incurred before the new
CBA was negotiated but after the prior CBA had expired.
At the end of the negotiating session on the new CBA,
Local’s business representative, George Netto, approached
Granite Rock about executing a separate “back-to-work”
agreement that would, among other things, hold union
members harmless for damages incurred during the June
2004 strike. Netto did not make execution of such an
agreement a condition of Local’s ratification of the CBA, or
of Local’s decision to cease picketing. Thus, Local did not
have a back-to-work or hold-harmless agreement in place
when it voted to ratify the CBA on July 2, 2004.
Respondent International Brotherhood of Teamsters
(IBT), which had advised Local throughout the CBA nego
——————
1 In deciding the arbitration question in this case we rely upon the

terms of the CBA and the facts in the District Court record. In review
ing the judgment affirming dismissal of Granite Rock’s tort claims
against respondent International Brotherhood of Teamsters (IBT) for
failure to state a claim, we rely on the facts alleged in Granite Rock’s
Third Amended Complaint. See, e.g., H. J. Inc. v. Northwestern Bell
Telephone Co., 492 U. S. 229, 250 (1989).
 Cite as: 561 U. S. ____ (2010) 3

Opinion of the Court

tiations and whose leadership and members supported the
June strike, opposed Local’s decision to return to work
without a back-to-work agreement shielding both Local
and IBT members from liability for strike-related dam
ages. In an effort to secure such an agreement, IBT in
structed Local’s members not to honor their agreement to
return to work on July 5, and instructed Local’s leaders to
continue the work stoppage until Granite Rock agreed to
hold Local and IBT members free from liability for the
June strike. Netto demanded such an agreement on July
6, but Granite Rock refused the request and informed
Local that the company would view any continued strike
activity as a violation of the new CBA’s no-strike clause.
IBT and Local responded by announcing a company-wide
strike that involved numerous facilities and hundreds of
workers, including members of IBT locals besides Local
287.
According to Granite Rock, IBT not only instigated this
strike; it supported and directed it. IBT provided pay and
benefits to union members who refused to return to work,
directed Local’s negotiations with Granite Rock, supported
Local financially during the strike period with a $1.2
million loan, and represented to Granite Rock that IBT
had unilateral authority to end the work stoppage in
exchange for a hold-harmless agreement covering IBT
members within and outside Local’s bargaining unit.
On July 9, 2004, Granite Rock sued IBT and Local in
the District Court, seeking an injunction against the
ongoing strike and strike-related damages. Granite Rock’s
complaint, originally and as amended, invoked federal
jurisdiction under LMRA §301(a), alleged that the July 6
strike violated Local’s obligations under the CBA’s no
strike provision, and asked the District Court to enjoin the
strike because the hold-harmless dispute giving rise to the
strike was an arbitrable grievance. See Boys Markets, Inc.
v. Retail Clerks, 398 U. S. 235, 237–238, 253–254 (1970)
4 GRANITE ROCK CO. v. TEAMSTERS

Opinion of the Court

(holding that federal courts may enjoin a strike where a
CBA contemplates arbitration of the dispute that occa
sions the strike). The unions conceded that LMRA §301(a)
gave the District Court jurisdiction over the suit but op
posed Granite Rock’s complaint, asserting that the CBA
was not validly ratified on July 2 (or at any other time
relevant to the July 2004 strike) and, thus, its no-strike
clause did not provide a basis for Granite Rock’s claims
challenging the strike.
The District Court initially denied Granite Rock’s re
quest to enforce the CBA’s no-strike provision because
Granite Rock was unable to produce evidence that the
CBA was ratified on July 2. App. 203–213. Shortly after
the District Court ruled, however, a Local member testi
fied that Netto had put the new CBA to a ratification vote
on July 2, and that the voting Local members unani
mously approved the agreement. Based on this statement
and supporting testimony from 12 other employees, Gran
ite Rock moved for a new trial on its injunction and dam
ages claims.
On August 22, while that motion was pending, Local
conducted a second successful “ratification” vote on the
CBA, and on September 13, the day the District Court was
scheduled to hear Granite Rock’s motion, the unions called
off their strike. Although their return to work mooted
Granite Rock’s request for an injunction, the District
Court proceeded with the hearing and granted Granite
Rock a new trial on its damages claims. The parties pro
ceeded with discovery and Granite Rock amended its
complaint, which already alleged federal2 claims for
breach of the CBA against both Local and IBT, to add
federal inducement of breach and interference with con
——————
2 This Court has recognized a federal common-law claim for breach of

a CBA under LMRA §301(a). See, e.g., Textile Workers v. Lincoln Mills
of Ala., 353 U. S. 448, 456 (1957).
 Cite as: 561 U. S. ____ (2010) 5

Opinion of the Court

tract (hereinafter tortious interference) claims against
IBT.
IBT and Local both moved to dismiss. Among other
things, IBT argued that Granite Rock could not plead a
federal tort claim under §301(a) because that provision
supports a federal cause of action only for breach of con
tract. The District Court agreed and dismissed Granite
Rock’s tortious interference claims. The District Court did
not, however, grant Local’s separate motion to send the
parties’ dispute over the CBA’s ratification date to arbitra
tion.3 The District Court held that whether the CBA was
ratified on July 2 or August 22 was an issue for the court
to decide, and submitted the question to a jury. The jury
reached a unanimous verdict that Local ratified the CBA
on July 2, 2004. The District Court entered the verdict
and ordered the parties to proceed with arbitration on
Granite Rock’s breach-of-contract claims for strike-related
damages.
The Court of Appeals for the Ninth Circuit affirmed in
part and reversed in part. See 546 F. 3d 1169 (2008). The
Court of Appeals affirmed the District Court’s dismissal of
Granite Rock’s tortious interference claims against IBT.
See id., at 1170–1175. But it disagreed with the District
Court’s determination that the date of the CBA’s ratifica
tion was a matter for judicial resolution. See id., at 1176–
1178. The Court of Appeals reasoned that the parties’
dispute over this issue was governed by the CBA’s arbitra
tion clause because the clause clearly covered the related
strike claims, the “national policy favoring arbitration”
required that any ambiguity about the scope of the parties’
arbitration clause be resolved in favor of arbitrability, and,
——————
3 The CBA’s ratification date is important to Granite Rock’s underly

ing suit for strike damages. If the District Court correctly concluded
that the CBA was ratified on July 2, Granite Rock could argue on
remand that the July work stoppage violated the CBA’s no-strike
clause.
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Opinion of the Court

in any event, Granite Rock had “implicitly” consented to
arbitrate the ratification-date dispute “by suing under the
contract.” Id., at 1178 (internal quotation marks omitted).
We granted certiorari. See 557 U. S. ___ (2009).
II
It is well settled in both commercial and labor cases that
whether parties have agreed to “submi[t] a particular
dispute to arbitration” is typically an “ ‘ issue for judicial
determination.’ ” Howsam v. Dean Witter Reynolds, Inc.,
537 U. S. 79, 83 (2002) (quoting AT&T Technologies, Inc.
v. Communications Workers, 475 U. S. 643, 649 (1986));
see John Wiley & Sons, Inc. v. Livingston, 376 U. S. 543,
546–547 (1964). It is similarly well settled that where the
dispute at issue concerns contract formation, the dispute
is generally for courts to decide. See, e.g., First Options of
Chicago, Inc. v. Kaplan, 514 U. S. 938, 944 (1995) (“When
deciding whether the parties agreed to arbitrate a certain
matter . . . courts generally . . . should apply ordinary . . .
principles that govern the formation of contracts”); AT&T
Technologies, supra, at 648−649 (explaining the settled
rule in labor cases that “ ‘arbitration is a matter of con
tract’ ” and “arbitrators derive their authority to resolve
disputes only because the parties have agreed in advance
to submit such grievances to arbitration”); Buckeye Check
Cashing, Inc. v. Cardegna, 546 U. S. 440, 444, n. 1 (2006)
(distinguishing treatment of the generally nonarbitral
question whether an arbitration agreement was “ever
concluded” from the question whether a contract con-
taining an arbitration clause was illegal when formed,
which question we held to be arbitrable in certain
circumstances).
These principles would neatly dispose of this case if the
formation dispute here were typical. But it is not. It is
based on when (not whether) the CBA that contains the
parties’ arbitration clause was ratified and thereby
 Cite as: 561 U. S. ____ (2010) 7

Opinion of the Court

formed.4 And at the time the District Court considered
Local’s demand to send this issue to an arbitrator, Granite
Rock, the party resisting arbitration, conceded both the
formation and the validity of the CBA’s arbitration clause.
These unusual facts require us to reemphasize the
proper framework for deciding when disputes are arbitra
ble under our precedents. Under that framework, a court
may order arbitration of a particular dispute only where
the court is satisfied that the parties agreed to arbitrate
that dispute. See First Options, supra, at 943; AT&T
Technologies, supra, at 648−649. To satisfy itself that
such agreement exists, the court must resolve any issue
that calls into question the formation or applicability of
the specific arbitration clause that a party seeks to have
the court enforce. See, e.g., Rent-A-Center, West, Inc. v.
Jackson, ante, at 4−6 (opinion of SCALIA, J.). Where there
is no provision validly committing them to an arbitrator,
see ante, at 7, these issues typically concern the scope of
the arbitration clause and its enforceability. In addition,
these issues always include whether the clause was agreed
to, and may include when that agreement was formed.
A
The parties agree that it was proper for the District
Court to decide whether their ratification dispute was
arbitrable.5 They disagree about whether the District
Court answered the question correctly. Local contends
that the District Court erred in holding that the CBA’s
——————
4 Although a union ratification vote is not always required for the

provisions in a CBA to be considered validly formed, the parties agree
that ratification was such a predicate here. See App. 349–351.
5 Because neither party argues that the arbitrator should decide this

question, there is no need to apply the rule requiring “ ‘clear and
unmistakable’ ” evidence of an agreement to arbitrate arbitrability.
First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 944 (1995)
(quoting AT&T Technologies, Inc. v. Communications Workers, 475
U. S. 643, 649 (1986) (alterations omitted)).
8 GRANITE ROCK CO. v. TEAMSTERS

Opinion of the Court

ratification date was an issue for the court to decide. The
Court of Appeals agreed, holding that the District Court’s
refusal to send that dispute to arbitration violated two
principles of arbitrability set forth in our precedents. See
546 F. 3d, at 1177−1178. The first principle is that where,
as here, parties concede that they have agreed to arbitrate
some matters pursuant to an arbitration clause, the “law’s
permissive policies in respect to arbitration” counsel that
“ ‘ any doubts concerning the scope of arbitral issues should
be resolved in favor of arbitration.’ ” First Options, supra,
at 945 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, Inc., 473 U. S. 614, 626 (1985)); see 546 F. 3d,
at 1177−1178 (citing this principle and the “national policy
favoring arbitration” in concluding that arbitration clauses
“are to be construed very broadly” (internal quotation
marks and citations omitted)). The second principle the
Court of Appeals invoked is that this presumption of
arbitrability applies even to disputes about the enforce
ability of the entire contract containing the arbitration
clause, because at least in cases governed by the Federal
Arbitration Act (FAA), 9 U. S. C. §1 et seq.,6 courts must
treat the arbitration clause as severable from the contract
in which it appears, and thus apply the clause to all dis
putes within its scope “ ‘[u]nless the [validity] challenge is
to the arbitration clause itself’ ” or the party “disputes the
——————
6 We, like the Court of Appeals, discuss precedents applying the FAA

because they employ the same rules of arbitrability that govern labor
cases. See, e.g., AT&T Technologies, supra, at 650. Indeed, the rule
that arbitration is strictly a matter of consent—and thus that courts
must typically decide any questions concerning the formation or scope
of an arbitration agreement before ordering parties to comply with it—
is the cornerstone of the framework the Court announced in the Steel
workers Trilogy for deciding arbitrability disputes in LMRA cases. See
Steelworkers v. American Mfg. Co., 363 U. S. 564, 567−568 (1960);
Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574, 582 (1960);
Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593, 597
(1960).
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Opinion of the Court

formation of [the] contract,” 546 F. 3d, at 1176 (quoting
Buckeye, 546 U. S., at 445−446); 546 F. 3d, at 1177, and
n. 4 (explaining that it would treat the parties’ arbitration
clause as enforceable with respect to the ratification-date
dispute because no party argued that the “clause is invalid
in any way”)).
Local contends that our precedents, particularly those
applying the “ ‘ federal policy favoring arbitration of labor
disputes,’ ” permit no other result. Brief for Respondent
Local, p. 15 (quoting Gateway Coal Co. v. Mine Workers,
414 U. S. 368, 377 (1974)); see Brief for Respondent Local,
pp. 10–13; 16–25. Local, like the Court of Appeals, over
reads our precedents. The language and holdings on
which Local and the Court of Appeals rely cannot be di
vorced from the first principle that underscores all of our
arbitration decisions: Arbitration is strictly “a matter of
consent,” Volt Information Sciences, Inc. v. Board of Trus
tees of Leland Stanford Junior Univ., 489 U. S. 468, 479
(1989), and thus “is a way to resolve those disputes—but
only those disputes—that the parties have agreed to sub
mit to arbitration,” First Options, 514 U. S., at 943 (em
phasis added).7 Applying this principle, our precedents
hold that courts should order arbitration of a dispute only
where the court is satisfied that neither the formation of
the parties’ arbitration agreement nor (absent a valid
provision specifically committing such disputes to an
arbitrator) its enforceability or applicability to the dispute
is in issue. Ibid. Where a party contests either or both
matters, “the court” must resolve the disagreement. Ibid.
Local nonetheless interprets some of our opinions to
depart from this framework and to require arbitration of
——————
7 See also Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S.

52, 57 (1995); Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 219–
220 (1985); Scherk v. Alberto-Culver Co., 417 U. S. 506, 511 (1974);
AT&T Technologies, supra, at 648; Warrior & Gulf, supra, at 582;
United States v. Moorman, 338 U. S. 457, 462 (1950).
10 GRANITE ROCK CO. v. TEAMSTERS

Opinion of the Court

certain disputes, particularly labor disputes, based on
policy grounds even where evidence of the parties’ agree
ment to arbitrate the dispute in question is lacking. See
Brief for Respondent Local, p. 16 (citing cases emphasizing
the policy favoring arbitration generally and the “impres
sive policy considerations favoring arbitration” in LMRA
cases (internal quotation marks omitted)). That is not a
fair reading of the opinions, all of which compelled arbitra
tion of a dispute only after the Court was persuaded that
the parties’ arbitration agreement was validly formed and
that it covered the dispute in question and was legally
enforceable. See, e.g., First Options, supra, at 944–945.
That Buckeye and some of our cases applying a presump
tion of arbitrability to certain disputes do not discuss each
of these requirements merely reflects the fact that in those
cases some of the requirements were so obviously satisfied
that no discussion was needed.
In Buckeye, the formation of the parties’ arbitration
agreement was not at issue because the parties agreed
that they had “concluded” an agreement to arbitrate and
memorialized it as an arbitration clause in their loan
contract. 546 U. S., at 444, n. 1. The arbitration clause’s
scope was also not at issue, because the provision ex
pressly applied to “ ‘[a]ny claim, dispute, or controversy . . .
arising from or relating to . . . the validity, enforceability,
or scope of this Arbitration Provision or the entire Agree
ment.’ ” Id., at 442. The parties resisting arbitration
(customers who agreed to the broad arbitration clause as a
condition of using Buckeye’s loan service) claimed only
that a usurious interest provision in the loan agreement
invalidated the entire contract, including the arbitration
clause, and thus precluded the Court from relying on the
clause as evidence of the parties’ consent to arbitrate
matters within its scope. See id., at 443. In rejecting this
argument, we simply applied the requirement in §2 of the
FAA that courts treat an arbitration clause as severable
 Cite as: 561 U. S. ____ (2010) 11

Opinion of the Court

from the contract in which it appears and enforce it ac
cording to its terms unless the party resisting arbitration
specifically challenges the enforceability of the arbitration
clause itself, see id., at 443−445 (citing 9 U. S. C. §2;
Southland Corp. v. Keating, 465 U. S. 1, 4−5 (1984); Prima
Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395,
402−404 (1967)), or claims that the agreement to arbitrate
was “[n]ever concluded,” 546 U. S., at 444, n. 1; see also
Rent-A-Center, ante, at 6−7, and n. 2.
Our cases invoking the federal “policy favoring arbitra
tion” of commercial and labor disputes apply the same
framework. They recognize that, except where “the par
ties clearly and unmistakably provide otherwise,” AT&T
Technologies, 475 U. S., at 649, it is “the court’s duty to
interpret the agreement and to determine whether the
parties intended to arbitrate grievances concerning” a
particular matter, id., at 651. They then discharge this
duty by: (1) applying the presumption of arbitrability only
where a validly formed and enforceable arbitration agree
ment is ambiguous about whether it covers the dispute at
hand; and (2) adhering to the presumption and ordering
arbitration only where the presumption is not rebutted.
See id., at 651–652; Prima Paint Corp., supra, at 396–398;
Gateway Coal Co. v. Mine Workers, 414 U. S. 368, 374–377
(1974); Drake Bakeries Inc. v. Bakery Workers, 370 U. S.
254, 256–257 (1962); Atkinson v. Sinclair Refining Co.,
370 U. S. 238, 241–242 (1962); Steelworkers v. Warrior &
Gulf Nav. Co., 363 U. S. 574, 576 (1960).8
——————
8 That our labor arbitration precedents apply this rule is hardly sur
prising. As noted above, see n. 6, supra, the rule is the foundation for
the arbitrability framework this Court announced in the Steelworkers
Trilogy. Local’s assertion that Warrior & Gulf suggests otherwise is
misplaced. Although Warrior & Gulf contains language that might in
isolation be misconstrued as establishing a presumption that labor
disputes are arbitrable whenever they are not expressly excluded from
an arbitration clause, 363 U. S., at 578–582, the opinion elsewhere
12 GRANITE ROCK CO. v. TEAMSTERS

Opinion of the Court

Local is thus wrong to suggest that the presumption of
arbitrability we sometimes apply takes courts outside our
settled framework for deciding arbitrability. The pre
sumption simply assists in resolving arbitrability disputes
within that framework. Confining the presumption to this
role reflects its foundation in “the federal policy favoring
arbitration.” As we have explained, this “policy” is merely
an acknowledgment of the FAA’s commitment to “overrule
the judiciary’s longstanding refusal to enforce agreements
to arbitrate and to place such agreements upon the same
footing as other contracts.” Volt, 489 U. S., at 478 (inter
nal quotation marks and citations omitted). Accordingly,
we have never held that this policy overrides the principle
that a court may submit to arbitration “only those dis
putes . . . that the parties have agreed to submit.” First
Options, 514 U. S., at 943; see also Mastrobuono v. Shear
son Lehman Hutton, Inc., 514 U. S. 52, 57 (1995) (“[T]he
FAA’s proarbitration policy does not operate without
regard to the wishes of the contract parties”); AT&T Tech
nologies, 475 U. S., at 650−651 (applying the same rule to
the “presumption of arbitrability for labor disputes”). Nor
——————
emphasizes that even in LMRA cases, “courts” must construe arbitra
tion clauses because “a party cannot be required to submit to arbitra
tion any dispute which he has not agreed so to submit.” Id., at 582
(applying this rule and finding the dispute at issue arbitrable only after
determining that the parties’ arbitration clause could be construed
under standard principles of contract interpretation to cover it).
Our use of the same rules in FAA cases is also unsurprising. The
rules are suggested by the statute itself. Section 2 of the FAA requires
courts to enforce valid and enforceable arbitration agreements accord
ing to their terms. And §4 provides in pertinent part that where a
party invokes the jurisdiction of a federal court over a matter that the
court could adjudicate but for the presence of an arbitration clause,
“[t]he court shall hear the parties” and “direc[t] the parties to proceed
to arbitration in accordance with the terms of the agreement” except
“[i]f the making of the arbitration agreement or the failure, neglect, or
refusal to perform the same be in issue,” in which case “the court shall
proceed summarily to the trial thereof.” 9 U. S. C. §4.
 Cite as: 561 U. S. ____ (2010) 13

Opinion of the Court

have we held that courts may use policy considerations as
a substitute for party agreement. See, e.g., id., at
648−651; Volt, supra, at 478. We have applied the pre
sumption favoring arbitration, in FAA and in labor cases,
only where it reflects, and derives its legitimacy from, a
judicial conclusion that arbitration of a particular dispute
is what the parties intended because their express agree
ment to arbitrate was validly formed and (absent a provi
sion clearly and validly committing such issues to an
arbitrator) is legally enforceable and best construed to
encompass the dispute. See First Options, supra, at 944–
945 (citing Mitsubishi, 473 U. S., at 626); Howsam, 537
U. S., at 83–84; AT&T Technologies, supra, at 650 (citing
Warrior & Gulf, supra, at 582–583); Drake Bakeries, su
pra, at 259–260. This simple framework compels reversal
of the Court of Appeals’ judgment because it requires
judicial resolution of two questions central to Local’s
arbitration demand: when the CBA was formed, and
whether its arbitration clause covers the matters Local
wishes to arbitrate.
B
We begin by addressing the grounds on which the Court
of Appeals reversed the District Court’s decision to decide
the parties’ ratification-date dispute, which the parties
characterize as a formation dispute because a union vote
ratifying the CBA’s terms was necessary to form the con
tract. See App. 351.9 For purposes of determining arbi
——————
9 The parties’ dispute about the CBA’s ratification date presents a

formation question in the sense above, and is therefore not on all fours
with, for example, the formation disputes we referenced in Buckeye
Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 444, n.1 (2006), which
concerned whether, not when, an agreement to arbitrate was “con
cluded.” That said, the manner in which the CBA’s ratification date
relates to Local’s arbitration demand makes the ratification-date
dispute in this case one that requires judicial resolution. See infra, at
14−19.
14 GRANITE ROCK CO. v. TEAMSTERS

Opinion of the Court

trability, when a contract is formed can be as critical as
whether it was formed. That is the case where, as here,
the date on which an agreement was ratified determines
the date the agreement was formed, and thus determines
whether the agreement’s provisions were enforceable
during the period relevant to the parties’ dispute.10
This formation date question requires judicial resolution
here because it relates to Local’s arbitration demand in
such a way that the District Court was required to decide
the CBA’s ratification date in order to determine whether
the parties consented to arbitrate the matters covered by
the demand.11 The parties agree that the CBA’s arbitra
tion clause pertains only to disputes that “arise under” the
agreement. Accordingly, to hold the parties’ ratification
date dispute arbitrable, the Court of Appeals had to decide
whether that dispute could be characterized as “arising
under” the CBA. In answering this question in the af
firmative, both Local and the Court of Appeals tied the
arbitrability of the ratification-date issue—which Local
raised as a defense to Granite Rock’s strike claims—to the
arbitrability of the strike claims themselves. See id., at
347. They did so because the CBA’s arbitration clause,
which pertains only to disputes “arising under” the CBA
——————
10 Our conclusions about the significance of the CBA’s ratification
date to the specific arbitrability question before us do not disturb the
general rule that parties may agree to arbitrate past disputes or future
disputes based on past events.
11 In reaching this conclusion we need not, and do not, decide whether

every dispute over a CBA’s ratification date would require judicial
resolution. We recognize that ratification disputes in labor cases may
often qualify as “formation disputes” for contract law purposes because
contract law defines formation as acceptance of an offer on specified
terms, and in many labor cases ratification of a CBA is necessary to
satisfy this formation requirement. See App. 349−351. But it is not the
mere labeling of a dispute for contract law purposes that determines
whether an issue is arbitrable. The test for arbitrability remains
whether the parties consented to arbitrate the dispute in question.
 Cite as: 561 U. S. ____ (2010) 15

Opinion of the Court

and thus presupposes the CBA’s existence, would seem
plainly to cover a dispute that “arises under” a specific
substantive provision of the CBA, but does not so obvi
ously cover disputes about the CBA’s own formation.
Accordingly, the Court of Appeals relied upon the ratifica
tion dispute’s relationship to Granite Rock’s claim that
Local breached the CBA’s no-strike clause (a claim the
Court of Appeals viewed as clearly “arising under” the
CBA) to conclude that “the arbitration clause is certainly
‘susceptible of an interpretation’ that covers” Local’s for
mation-date defense. 546 F. 3d, at 1177, n. 4.
The Court of Appeals overlooked the fact that this the
ory of the ratification dispute’s arbitrability fails if the
CBA was not formed at the time the unions engaged in the
acts that gave rise to Granite Rock’s strike claims. The
unions began their strike on July 6, 2004, and Granite
Rock filed its suit on July 9. If, as Local asserts, the CBA
containing the parties’ arbitration clause was not ratified,
and thus not formed, until August 22, there was no CBA
for the July no-strike dispute to “arise under,” and thus no
valid basis for the Court of Appeals’ conclusion that Gran
ite Rock’s July 9 claims arose under the CBA and were
thus arbitrable along with, by extension, Local’s formation
date defense to those claims.12 See ibid. For the foregoing
reasons, resolution of the parties’ dispute about whether
the CBA was ratified in July or August was central to
deciding Local’s arbitration demand. Accordingly, the
Court of Appeals erred in holding that it was not neces
sary for the District Court to determine the CBA’s ratifica
tion date in order to decide whether the parties agreed to
arbitrate Granite Rock’s no-strike claim or the ratification
date dispute Local raised as a defense to that claim.
——————
12 This analysis pertains only to the Court of Appeals’ decision, which

did not engage the 11th-hour retroactivity argument Local raised in its
merits brief in this Court, and that we address below.
16 GRANITE ROCK CO. v. TEAMSTERS

Opinion of the Court

Local seeks to address this flaw in the Court of Appeals’
decision by arguing that in December 2004 the parties
executed a document that rendered the CBA effective as of
May 1, 2004 (the date the prior CBA expired), and that
this effective-date language rendered the CBA’s arbitra
tion clause (but not its no-strike clause) applicable to the
July strike period notwithstanding Local’s view that the
agreement was ratified in August (which ratification date
Local continues to argue controls the period during which
the no-strike clause applies). See Brief for Respondent
Local, pp. 26–27; Tr. of Oral Arg. 32, 37−39. The Court of
Appeals did not rule on the merits of this claim (i.e., it did
not decide whether the CBA’s effective date language
indeed renders some or all of the agreement’s provisions
retroactively applicable to May 2004), and we need not do
so either. Even accepting Local’s assertion that it raised
this retroactivity argument in the District Court, see Brief
for Respondent Local, p. 26,13 Local did not raise this
argument in the Court of Appeals. Nor, more importantly,
did Local’s brief in opposition to Granite Rock’s petition for
certiorari raise the argument as an alternative ground on
which this Court could or should affirm the Court of Ap
peals’ judgment finding the ratification-date dispute arbi
trable for the reasons discussed above. Accordingly, the
argument is properly “deemed waived.” This Court’s Rule
15.2; Carcieri v. Salazar, 555 U. S. ___, ___ (2009) (slip op.,
at 15−16).14
——————
13 This claim is questionable because Local’s February 2005 refer

ences to the agreement “now in effect” are not obviously equivalent to
the express retroactivity argument Local asserts in its merits brief in
this Court. See Brief for Respondent Local, pp. 26−27.
14 JUSTICE SOTOMAYOR’s conclusion that we should nonetheless excuse

Local’s waiver and consider the retroactivity argument, see post, at 5−6
(opinion concurring in part and dissenting in part), is flawed. This
Court’s Rule 15.2 reflects the fact that our adversarial system assigns
both sides responsibility for framing the issues in a case. The impor
tance of enforcing the Rule is evident in cases where, as here, excusing
 Cite as: 561 U. S. ____ (2010) 17

Opinion of the Court

C
Although the foregoing is sufficient to reverse the Court
of Appeals’ judgment, there is an additional reason to do
so: The dispute here, whether labeled a formation dispute
or not, falls outside the scope of the parties’ arbitration
clause on grounds the presumption favoring arbitration
cannot cure. Section 20 of the CBA provides in relevant
part that “[a]ll disputes arising under this agreement shall
be resolved in accordance with the [Grievance] procedure,”
which includes arbitration. App. 434 (emphasis added);
see also id., at 434–437. The parties’ ratification-date
dispute cannot properly be characterized as falling within
the (relatively narrow, cf., e.g., Drake Bakeries Inc., 370
U. S., at 256–257) scope of this provision for at least two
reasons. First, we do not think the question whether the
CBA was validly ratified on July 2, 2004—a question that
concerns the CBA’s very existence—can fairly be said to
“arise under” the CBA. Second, even if the “arising under”
language could in isolation be construed to cover this
dispute, Section 20’s remaining provisions all but foreclose
such a reading by describing that section’s arbitration
requirement as applicable to labor disagreements that are
addressed in the CBA and are subject to its requirement of
mandatory mediation. See App. 434–437 (requiring arbi
tration of disputes “arising under” the CBA, but only after
the Union and Employer have exhausted mandatory
mediation, and limiting any arbitration decision under
this provision to those “within the scope and terms of
this agreement and . . . specifically limited to the matter
submitted”).

——————
a party’s noncompliance with it would require this Court to decide, in
the first instance, a question whose resolution could affect this and
other cases in a manner that the District Court and Court of Appeals
did not have an opportunity to consider, and that the parties’ argu
ments before this Court may not fully address.
18 GRANITE ROCK CO. v. TEAMSTERS

Opinion of the Court

The Court of Appeals’ contrary conclusion does not find
support in the text of §20. The Court of Appeals’ only
effort to grapple with that text misses the point because it
focuses on whether Granite Rock’s claim to enforce the
CBA’s no-strike provisions could be characterized as “aris
ing under” the agreement. See 546 F. 3d, at 1177, n. 4.
Even assuming that claim can be characterized as “arising
under” the CBA, it is not the issue here. The issue is
whether the formation-date defense that Local raised in
response to Granite Rock’s no-strike suit can be character
ized as “arising under” the CBA. It cannot for the reasons
we have explained, namely, the CBA provision requiring
arbitration of disputes “arising under” the CBA is not
fairly read to include a dispute about when the CBA came
into existence. The Court of Appeals erred in failing to
address this question and holding instead that the arbitra
tion clause is “susceptible of an interpretation” that covers
Local’s formation-date defense to Granite Rock’s suit
“[b]ecause Granite Rock is suing ‘under’ the alleged new
CBA” and “[a]rbitration clauses are to be construed very
broadly.” Ibid.; see also id., at 1178.
D
Local’s remaining argument in support of the Court of
Appeals’ judgment is similarly unavailing. Local reiter
ates the Court of Appeals’ conclusion that Granite Rock
“implicitly” consented to arbitration when it sued to en
force the CBA’s no-strike and arbitrable grievance provi
sions. See Brief for Respondent Local, pp. 17–18. We do
not agree that by seeking an injunction against the strike
so the parties could arbitrate the labor grievance that gave
rise to it, Granite Rock also consented to arbitrate the
ratification (formation) date dispute we address above.
See 564 F. 3d, at 1178. It is of course true that when
Granite Rock sought that injunction it viewed the CBA
(and all of its provisions) as enforceable. But Granite
 Cite as: 561 U. S. ____ (2010) 19

Opinion of the Court

Rock’s decision to sue for compliance with the CBA’s
grievance procedures on strike-related matters does not
establish an agreement, “implicit” or otherwise, to arbi
trate an issue (the CBA’s formation date) that Granite
Rock did not raise, and that Granite Rock has always (and
rightly, see Part II−C, supra) characterized as beyond the
scope of the CBA’s arbitration clause. The mere fact that
Local raised the formation date dispute as a defense to
Granite Rock’s suit does not make that dispute attribut
able to Granite Rock in the waiver or estoppel sense the
Court of Appeals suggested, see 546 F. 3d, at 1178, much
less establish that Granite Rock agreed to arbitrate it by
suing to enforce the CBA as to other matters. Accordingly,
we hold that the parties’ dispute over the CBA’s formation
date was for the District Court, not an arbitrator, to re
solve, and remand for proceedings consistent with that
conclusion.
III
We turn now to the claims available on remand. The
parties agree that Granite Rock can bring a breach-of
contract claim under LMRA §301(a) against Local as a
CBA signatory, and against IBT as Local’s agent or alter
ego. See Brief for Respondent IBT 10–13; Reply Brief for
Petitioner 12–13 and n. 11.15 The question is whether
——————
15 Although the parties concede the general availability of such a

claim against IBT, they dispute whether Granite Rock abandoned its
agency or alter ego allegations in the course of this litigation. Compare
Brief for Respondent IBT, p. 10 with Reply Brief for Petitioner 12–13,
n. 11. Granite Rock concedes that it has abandoned its claim that IBT
acted as Local’s undisclosed principal in orchestrating the ratification
response to the July 2, 2004, CBA. See Plaintiff Granite Rock’s Memo
randum of Points and Authorities in Opposition to Defendant IBT’s
Motion to Dismiss in No. 5:04–cv–02767–JW (ND Cal., Aug. 7, 2006),
Doc. 178, pp. 6, 8 (hereinafter Points and Authorities). But Granite
Rock insists that it preserved its argument that Local served as IBT’s
agent or alter ego when Local denied ratification and engaged in
20 GRANITE ROCK CO. v. TEAMSTERS

Opinion of the Court

Granite Rock may also bring a federal tort claim under
§301(a) for IBT’s alleged interference with the CBA.16
Brief for Petitioner 32. The Court of Appeals joined virtu
ally all other Circuits in holding that it would not recog
nize such a claim under §301(a).
Granite Rock asks us to reject this position as inconsis
tent with federal labor law’s goal of promoting industrial
peace and economic stability through judicial enforcement
of CBAs, as well as with our precedents holding that a
federal common law of labor contracts is necessary to
further this goal. See id., at 31; see also, e.g., Textile
Workers v. Lincoln Mills of Ala., 353 U. S. 448, 451 (1957).
Explaining that IBT’s conduct in this case undermines the
very core of the bargaining relationship federal labor laws
exist to protect, Granite Rock argues that a federal
common-law tort remedy for IBT’s conduct is necessary
because other potential avenues for deterring and redress
ing such conduct are either unavailable or insufficient.
See Brief for Petitioner 32–33; Reply Brief for Petitioner
19–20. On the unavailable side of the ledger Granite Rock
lists state-law tort claims, some of which this Court has
held §301(a) pre-empts, as well as administrative (unfair
labor practices) claims, which Granite Rock says the Na
tional Labor Relations Board (NLRB) cannot entertain
——————
unauthorized strike activity in July 2004. Nothing in the record before
us unequivocally refutes this assertion. See App. 306, 311–315, 318;
Points and Authorities 6, n. 3. Accordingly, nothing in this opinion
forecloses the parties from litigating these claims on remand.
16 IBT argues that we should dismiss this question as improvidently

granted because Granite Rock abandoned its tortious interference claim
when it declared its intention to seek only contractual (as opposed to
punitive) damages on the claim. See Brief for Respondent IBT 16. We
reject this argument, which confuses Granite Rock’s decision to forgo
the pursuit of punitive damages on its claim with a decision to abandon
the claim itself. The two are not synonymous, and IBT cites no author
ity for the proposition that Granite Rock must allege more than eco
nomic damages to state a claim on which relief could be granted.
 Cite as: 561 U. S. ____ (2010) 21

Opinion of the Court

against international unions that (like IBT) are not part of
the certified local bargaining unit they allegedly control.
On the insufficient side of the ledger Granite Rock lists
federal common-law breach-of-contract claims, which
Granite Rock says are difficult to prove against non-CBA
signatories like IBT because international unions struc
ture their relationships with local unions in a way that
makes agency or alter ego difficult to establish. Based on
these assessments, Granite Rock suggests that this case
presents us with the choice of either recognizing the fed
eral common-law tort claim Granite Rock seeks or sanc
tioning conduct inconsistent with federal labor statutes
and our own precedents. See Brief for Petitioner 13–14.
We do not believe the choice is as stark as Granite Rock
implies. It is of course true that we have construed “Sec
tion 301 [to] authoriz[e] federal courts to fashion a body of
federal law for the enforcement of collective bargaining
agreements.” Lewis v. Benedict Coal Corp., 361 U. S. 459,
470 (1960) (citing Lincoln Mills, supra). But we have also
emphasized that in developing this common law we “did
not envision any freewheeling inquiry into what the fed
eral courts might find to be the most desirable rule.”
Howard Johnson Co. v. Hotel Employees, 417 U. S. 249,
255 (1974). The balance federal statutes strike between
employer and union relations in the collective-bargaining
arena is carefully calibrated, see, e.g., NLRB v. Drivers,
362 U. S. 274, 289–290 (1960), and as the parties’ briefs
illustrate, creating a federal common-law tort cause of
action would require a host of policy choices that could
easily upset this balance, see Brief for Respondent IBT
42–44; Reply Brief for Petitioner 22–25. It is thus no
surprise that virtually all Courts of Appeals have held
that federal courts’ authority to “create a federal common
law of collective bargaining agreements under section 301”
should be confined to “a common law of contracts, not a
source of independent rights, let alone tort rights; for
22 GRANITE ROCK CO. v. TEAMSTERS

Opinion of the Court

section 301 is . . . a grant of jurisdiction only to enforce
contracts.” Brazinski v. Amoco Petroleum Additives Co., 6
F. 3d 1176, 1180 (CA7 1993). We see no reason for a
different result here because it would be premature to
recognize the federal common law tort Granite Rock re
quests in this case even assuming that §301(a) authorizes
us to do so.
In reaching this conclusion, we emphasize that the
question before us is a narrow one. It is not whether the
conduct Granite Rock challenges is remediable, but
whether we should augment the claims already available
to Granite Rock by creating a new federal common-law
cause of action under §301(a). That we decline to do so
does not mean that we approve of IBT’s alleged actions.
Granite Rock describes a course of conduct that does
indeed seem to strike at the heart of the collective
bargaining process federal labor laws were designed to
protect. As the record in this case demonstrates, however,
a new federal tort claim is not the only possible remedy for
this conduct. Granite Rock’s allegations have prompted
favorable judgments not only from a federal jury, but also
from the NLRB. In proceedings that predated those in
which the District Court entered judgment for Granite
Rock on the CBA’s formation date,17 the NLRB concluded
that a “complete agreement” was reached on July 2, and
that Local and IBT violated federal labor laws by attempt
ing to delay the CBA’s ratification pending execution of a
separate agreement favorable to IBT. See In re Teamsters
Local 287, 347 N. L. R. B. 339, 340–341, and n. 1 (2006)
(applying the remedial order on the 2004 conduct to both
——————
17 Although the Board and federal jury reached different conclusions

with respect to the CBA’s ratification date, the discrepancy has little
practical significance because the Board’s remedial order against Local
and IBT gives “retroactive effect to the terms of the [CBA of] July 2,
2004, as if ratified on that date.” In re Teamsters Local 287, 347
N. L. R. B. 339, 340 (2006).
 Cite as: 561 U. S. ____ (2010) 23

Opinion of the Court

Local and IBT on the grounds that IBT did not disaffiliate
from the AFL–CIO until July 25, 2005).
These proceedings, and the proceedings that remain to
be conducted on remand, buttress our conclusion that
Granite Rock’s case for a new federal common-law cause of
action is based on assumptions about the adequacy of
other avenues of relief that are at least questionable be
cause they have not been fully tested in this case and thus
their efficacy is simply not before us to evaluate. Notably,
Granite Rock (like IBT and the Court of Appeals) assumes
that federal common law provides the only possible basis
for the type of tort claim it wishes to pursue. See Brief for
Respondent IBT 33–34; Reply Brief for Petitioner 16. But
Granite Rock did not litigate below, and thus does not
present us with occasion to address, whether state law
might provide a remedy. See, e.g., Steelworkers v. Raw
son, 495 U. S. 362, 369−371 (1990); Textron Lycoming
Reciprocating Engine Div., AVCO Corp. v. Automobile
Workers, 523 U. S. 653, 656, 658 (1998). Nor did Granite
Rock fully explore the breach-of-contract and administra
tive causes of action it suggests are insufficient to remedy
IBT’s conduct. For example, far from establishing that an
agency or alter ego claim against IBT would be unsuccess
ful, the record in this case suggests it might be easier to
prove than usual if, as the NLRB’s decision observes, IBT
and Local were affiliated in 2004 in a way relevant to
Granite Rock’s claims. See In re Teamsters Local 287,
supra, at 340, n. 6. Similarly, neither party has estab
lished that the Board itself could not issue additional
relief against IBT. IBT’s amici argue that the “overlap
between Granite Rock’s §301 claim against the IBT and
the NLRB General Counsel’s unfair labor practice com
plaint against Local 287 brings into play the National
Labor Relations Act rule that an international union
commits an unfair labor practice by causing its affiliated
local unions to ‘impose extraneous non-bargaining unit
24 GRANITE ROCK CO. v. TEAMSTERS

Opinion of the Court

considerations into the collective bargaining process.’ ”
Brief for American Federation of Labor et al. 30–31 (quot
ing Paperworkers Local 620, 309 N. L. R. B. 44, 44 (1992)).
The fact that at least one Court of Appeals has recognized
the viability of such a claim, see Kobell v. United Paper
workers Int’l Union, 965 F. 2d 1401, 1407−1409 (CA6
1992), further persuades us that Granite Rock’s argu
ments do not justify recognition of a new federal tort claim
under §301(a).
* * *
We reverse the Court of Appeals’ judgment on the arbi
trability of the parties’ formation-date dispute, affirm its
judgment dismissing Granite Rock’s claims against IBT to
the extent those claims depend on the creation of a new
federal common-law tort cause of action under §301(a),
and remand the case for further proceedings consistent
with this opinion.
It is so ordered.
 Cite as: 561 U. S. ____ (2010) 1

Opinion of SOTOMAYOR, J.

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–1214
_________________

GRANITE ROCK COMPANY, PETITIONER v.

INTERNATIONAL BROTHERHOOD

OF TEAMSTERS ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 24, 2010]

JUSTICE SOTOMAYOR, with whom JUSTICE STEVENS
joins, concurring in part and dissenting in part.
I join Part III of the Court’s opinion, which holds that
petitioner Granite Rock’s tortious interference claim
against respondent International Brotherhood of Team
sters (IBT) is not cognizable under §301(a) of the Labor
Management Relations Act, 1947 (LMRA), 29 U. S. C.
§185(a). I respectfully dissent, however, from the Court’s
conclusion that the arbitration provision in the collective
bargaining agreement (CBA) between Granite Rock and
IBT Local 287 does not cover the parties’ dispute over
whether Local 287 breached the CBA’s no-strike clause.
In my judgment, the parties clearly agreed in the CBA to
have this dispute resolved by an arbitrator, not a court.
The legal principles that govern this case are simpler
than the Court’s exposition suggests. Arbitration, all
agree, “is a matter of contract and a party cannot be re
quired to submit to arbitration any dispute which [it] has
not agreed so to submit.” Steelworkers v. Warrior & Gulf
Nav. Co., 363 U. S. 574, 582 (1960). Before ordering par
ties to arbitrate, a court must therefore confirm (1) that
the parties have an agreement to arbitrate and (2) that
the agreement covers their dispute. See ante, at 9. In
determining the scope of an arbitration agreement, “there
2 GRANITE ROCK CO. v. TEAMSTERS

Opinion of SOTOMAYOR, J.

is a presumption of arbitrability in the sense that ‘[a]n
order to arbitrate the particular grievance should not be
denied unless it may be said with positive assurance that
the arbitration clause is not susceptible of an interpreta
tion that covers the asserted dispute. Doubts should be
resolved in favor of coverage.’ ” AT&T Technologies, Inc. v.
Communications Workers, 475 U. S. 643, 650 (1986) (quot
ing Warrior, 363 U. S., at 582–583); see also John Wiley &
Sons, Inc. v. Livingston, 376 U. S. 543, 550, n. 4 (1964)
(“[W]hen a contract is scrutinized for evidence of an inten
tion to arbitrate a particular kind of dispute, national
labor policy requires, within reason, that an interpretation
that covers the asserted dispute . . . be favored” (emphasis
deleted; internal quotation marks omitted)).1
The application of these established precepts to the facts
of this case strikes me as equally straightforward: It is
undisputed that Granite Rock and Local 287 executed a
CBA in December 2004. The parties made the CBA retro
actively “effect[ive] from May 1, 2004,” the day after the
expiration of their prior collective-bargaining agreement.
App. to Pet. for Cert. A–190. Among other things, the
CBA prohibited strikes and lockouts. Id., at A–181. The
CBA authorized either party, in accordance with certain
grievance procedures, to “refe[r] to arbitration” “[a]ll dis
putes arising under this agreement,” except for three
——————
1 When the question is “ ‘who (primarily) should decide arbitrability’ ”

(as opposed to “ ‘whether a particular merits-related dispute is arbitra
ble’ ”), “the law reverses the presumption.” First Options of Chicago,
Inc. v. Kaplan, 514 U. S. 938, 944–945 (1995). In other words, “[u]nless
the parties clearly and unmistakably provide otherwise,” it is presumed
that courts, not arbitrators, are responsible for resolving antecedent
questions concerning the scope of an arbitration agreement. AT&T
Technologies, Inc. v. Communications Workers, 475 U. S. 643, 649
(1986). As the majority correctly observes, ante, at 7, n. 5, this case
does not implicate the reversed presumption because both parties
accept that a court, not an arbitrator, should resolve their current
disagreement about whether their underlying dispute is arbitrable.
 Cite as: 561 U. S. ____ (2010) 3

Opinion of SOTOMAYOR, J.

specified “classes of disputes” not implicated here. Id., at
A–176 to A–179.
Granite Rock claims that Local 287 breached the CBA’s
no-strike clause by engaging in a work stoppage in July
2004. Local 287 contests this claim. Specifically, it con
tends that it had no duty to abide by the no-strike clause
in July because it did not vote to ratify the CBA until
August. As I see it, the parties’ disagreement as to
whether the no-strike clause proscribed the July work
stoppage is plainly a “disput[e] arising under” the CBA
and is therefore subject to arbitration as Local 287 de
mands. Indeed, the parties’ no-strike dispute is indistin
guishable from myriad other disputes that an employer
and union might have concerning the interpretation and
application of the substantive provisions of a collective
bargaining agreement. These are precisely the sorts of
controversies that labor arbitrators are called upon to
resolve every day.
The majority seems to agree that the CBA’s arbitration
provision generally encompasses disputes between Gran
ite Rock and Local 287 regarding the parties’ compliance
with the terms of the CBA, including the no-strike clause.
The majority contends, however, that Local 287’s “forma
tion-date defense” raises a preliminary question of con
tract formation that must be resolved by a court rather
than an arbitrator. Ante, at 15. The majority’s reasoning
appears to be the following: If Local 287 did not ratify the
CBA until August, then there is “no valid basis” for apply
ing the CBA’s arbitration provision to events that occurred
in July. Ibid.
The majority’s position is flatly inconsistent with the
language of the CBA. The parties expressly chose to make
the agreement effective from May 1, 2004. As a result,
“the date on which [the] agreement was ratified” does not,
as the majority contends, determine whether the parties’
dispute about the permissibility of the July work stoppage
4 GRANITE ROCK CO. v. TEAMSTERS

Opinion of SOTOMAYOR, J.

falls within the scope of the CBA’s arbitration provision.
Ante, at 14. When it comes to answering the arbitrability
question, it is entirely irrelevant whether Local 287 rati
fied the CBA in August (as it contends) or in July (as
Granite Rock contends). In either case, the parties’ dis
pute—which postdates May 1—clearly “aris[es] under” the
CBA, which is all the arbitration provision requires to
make a dispute referable to an arbitrator. Cf. Litton
Financial Printing Div., Litton Business Systems, Inc. v.
NLRB, 501 U. S. 190, 201 (1991) (recognizing that “a
collective-bargaining agreement might be drafted so as to
eliminate any hiatus between expiration of the old and
execution of the new agreement”).2
Given the CBA’s express retroactivity, the majority errs
in treating Local 287’s ratification-date defense as a “for
mation dispute” subject to judicial resolution. Ante, at 13.
The defense simply goes to the merits of Granite Rock’s
claim: Local 287 maintains that the no-strike clause
should not be construed to apply to the July work stoppage
because it had not ratified the CBA at the time of that
action. Cf. First Options of Chicago, Inc. v. Kaplan, 514
U. S. 938, 942 (1995) (distinguishing a disagreement that
“makes up the merits of the dispute” from a disagreement
“about the arbitrability of the dispute”). Accordingly, the
defense is necessarily a matter for the arbitrator, not the
court. See AT&T, 475 U. S., at 651 (“[I]t is for the arbitra
tor to determine the relative merits of the parties’ sub
——————
2 Notably, at the time they executed the CBA in December 2004, the

parties were well aware that they disagreed about the legitimacy of the
July work stoppage. Yet they made the CBA retroactive to May and
declined to carve out their no-strike dispute from the arbitration
provision, despite expressly excluding three other classes of disputes
from arbitration. Cf. Steelworkers v. Warrior & Gulf Nav. Co., 363
U. S. 574, 584–585 (1960) (“In the absence of any express provision
excluding a particular grievance from arbitration, we think only the
most forceful evidence of a purpose to exclude the claim from arbitra
tion can prevail”).
 Cite as: 561 U. S. ____ (2010) 5

Opinion of SOTOMAYOR, J.

stantive interpretations of the agreement”). Indeed, this
Court has been emphatic that “courts . . . have no business
weighing the merits of the grievance.” Steelworkers v.
American Mfg. Co., 363 U. S. 564, 568 (1960). “When the
judiciary undertakes to determine the merits of a griev
ance under the guise of interpreting the [arbitration provi
sions] of collective bargaining agreements, it usurps a
function . . . entrusted to the arbitration tribunal.” Id., at
569; see also AT&T, 475 U. S., at 649 (“[I]n deciding
whether the parties have agreed to submit a particular
grievance to arbitration, a court is not to rule on the po
tential merits of the underlying claims”); Warrior, 363
U. S., at 582, 585 (“[T]he judicial inquiry under [LMRA]
§301 must be strictly confined to the question whether the
reluctant party did agree to arbitrate the grievance”; “the
court should view with suspicion an attempt to persuade it
to become entangled in the construction of the substantive
provisions of a labor agreement”).
Attempting to sidestep this analysis, the majority de
clares that Local 287 waived its retroactivity argument by
failing in the courts below to challenge Granite Rock’s
consistent characterization of the parties’ dispute as one of
contract formation. See ante, at 16. As a result of Local
287’s omission, the District Court and Court of Appeals
proceeded under the understanding that this case pre
sented a formation question. It was not until its merits
brief in this Court that Local 287 attempted to correct this
mistaken premise by pointing to the parties’ execution of
the December 2004 CBA with its May 2004 effective date.
This Court’s rules “admonis[h] [counsel] that they have an
obligation to the Court to point out in the brief in opposi
tion [to certiorari], and not later, any perceived misstate
ment made in the petition [for certiorari]”; nonjurisdic
tional arguments not raised at that time “may be deemed
waived.” This Court’s Rule 15.2. Although it is regretta
ble and inexcusable that Local 287 did not present its
6 GRANITE ROCK CO. v. TEAMSTERS

Opinion of SOTOMAYOR, J.

argument earlier, I do not see it as one we can ignore. The
question presented in this case presupposes that “it is
disputed whether any binding contract exists.” Brief for
Petitioner i. Because it is instead undisputed that the
parties executed a binding contract in December 2004 that
was effective as of May 2004, we can scarcely pretend that
the parties have a formation dispute. Consideration of
this fact is “a ‘predicate to an intelligent resolution’ of the
question presented, and therefore ‘fairly included
therein.’ ” Ohio v. Robinette, 519 U. S. 33, 38 (1996) (quot
ing Vance v. Terrazas, 444 U. S. 252, 258, n. 5 (1980); this
Court’s Rule 14.1(a)). Indeed, by declining to consider the
plain terms of the parties’ agreement, the majority offers
little more than “an opinion advising what the law would
be upon a hypothetical state of facts.” Aetna Life Ins. Co.
v. Haworth, 300 U. S. 227, 241 (1937). In view of the
CBA’s effective date, I would hold that the parties agreed
to arbitrate the no-strike dispute, including Local 287’s
ratification-date defense, and I would affirm the judgment
below on this alternative ground. Cf. Dandridge v. Wil
liams, 397 U. S. 471, 475, n. 6 (1970) (“The prevailing
party may, of course, assert in a reviewing court any
ground in support of [the] judgment, whether or not that
ground was relied upon or even considered by the trial
court”).