RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0337p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
Plaintiff-Appellant, -
TEAMSTERS LOCAL UNION NO. 783,
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No. 09-6065
v.
,
>
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Defendant-Appellee. -
ANHEUSER-BUSCH, INC.,
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N
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 07-00650—Charles R. Simpson III, District Judge.
Argued: June 18, 2010
Decided and Filed: November 1, 2010
Before: NORRIS, MOORE, and McKEAGUE, Circuit Judges.
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COUNSEL
ARGUED: Thomas J. Schulz, PRIDDY, CUTLER, MILLER & MEADE PLLC,
Louisville, Kentucky, for Appellant. Raymond C. Haley III, DINSMORE & SHOHL,
LLP, Louisville, Kentucky, for Appellee. ON BRIEF: Thomas J. Schulz, Scott M.
Miller, PRIDDY, CUTLER, MILLER & MEADE PLLC, Louisville, Kentucky, for
Appellant. Raymond C. Haley III, Loren T. Prizant, DINSMORE & SHOHL, LLP,
Louisville, Kentucky, for Appellee.
McKEAGUE, J., delivered the opinion of the court, in which NORRIS, J., joined.
MOORE, J. (p. 12), delivered a separate opinion concurring in part and dissenting in
part.
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OPINION
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McKEAGUE, Circuit Judge. Teamsters Local Union No. 783 (“Local 783”)
filed suit against Anheuser-Busch seeking to compel Anheuser-Busch to arbitrate a
1
No. 09-6065 Teamsters Local Union No.783 v. Anheuser-Busch, Inc. Page 2
“grievance over Section 11 of the collective bargaining agreement and its effect on
pension rights and benefits.” The parties filed cross-motions for summary judgment.
Local 783 argued that the grievance arose under the collective bargaining agreement and
therefore should be subject to arbitration, while Anheuser-Busch asserted that (1) Local
783’s complaint was time-barred and (2) that the grievance was expressly excluded from
the parties’ arbitration agreement. Local 783 now appeals the district court’s grant of
summary judgment in favor of Anheuser-Busch. Although we find that Local 783’s
claim is not time-barred because Anheuser-Busch failed to unequivocally refuse to
arbitrate, we AFFIRM the decision of the district court and find that Local 783’s
complaint is not subject to arbitration to the extent that the complaint seeks to determine
claimant Jerry T. Vincent’s pension rights and benefits.
I. Background
The material facts of this matter are not in dispute. The relationship between
Local 783 and Anheuser-Busch was governed by a Collective Bargaining Agreement
(“CBA”). Section 21 of the CBA authorizes all grievances “arising under or relating to
the interpretation of” the CBA to be subject to arbitration, provided that “a mutually
satisfactory adjustment is not arrived at” between the Union agent and the employer’s
representative. The CBA also governs union activity, and states in Section 11(b) that
“[w]hen a member of the Union leaves the Employer to take full time employment with
the Local Union, he shall after the completion of such employment with the Local Union
return to his former position and his seniority shall continue uninterrupted.”
Although the CBA governs a variety of employee benefits, it does not cover the
employees’ pension plan. Instead, the CBA explains in Section 24 that a qualified
pension plan would be provided by Anheuser-Busch and would be covered by a separate
document, which was entitled “Retirement Plan for Certain Hourly Employees of
Anheuser-Busch, Inc.” (“Pension Plan”). The Pension Plan not only details the
administration of pension benefits, but also establishes an alternate mechanism for
resolving grievances related to pension rights. Section 14.3 of the Pension Plan provides
a comprehensive procedure by which claims of eligibility for participation in the Pension
No. 09-6065 Teamsters Local Union No.783 v. Anheuser-Busch, Inc. Page 3
Plan or receipt of benefits are to be submitted to and resolved first by the plan director
and, in the event of a denial, by an appeals committee. The section also states that the
director and the appeals committee both have “full and exclusive authority and discretion
to apply, interpret and construe the provisions of the Plan . . . .”
Jerry T. Vincent had been an employee of Anheuser-Busch for many years before
leaving his employment with the company to serve as an elected official of Local 783.
After serving an uninterrupted period of employment with Local 783, Vincent returned
to employment with Anheuser-Busch for one day, was paid for five weeks of vacation,
and voluntarily terminated his employment the next day. During his last few months of
employment with Local 783, Vincent had initiated the process to obtain his retirement
benefits, seeking “full entitlement of benefits” upon notice of retirement. He asserted
that his return to Anheuser-Busch following his term with Local 783 “restored [his] full
seniority rights under the collective bargaining agreement.”
After his claim was denied, Vincent filed an appeal with the appeals committee,
which also was unsuccessful. Vincent then filed a written grievance alleging that
Anheuser-Busch violated his rights “under Section 11 of its current collective bargaining
agreement with Local 783, IBT by refusing to permit [him] uninterrupted seniority for
all purposes, including pension.” After an unsuccessful meeting with a Local 783
official and the local director of operations to resolve the matter, an arbitrator was
selected to hear and decide Vincent’s grievance. However, following review of the file,
Anheuser-Busch’s attorney sent a letter to Local 783 asserting that to the extent
Vincent’s grievance raised a claim for pension benefits, the grievance was “not
arbitrable under the labor contract because pension eligibility and benefits are controlled
by the terms of the separate Pension Plan and, therefore, is subject exclusively to the
claims procedures established in the Pension Plan.” In a series of letters following this
communication, Anheuser-Busch’s attorney sought clarification of the exact nature of
Vincent’s grievance and informed Local 783 that Anheuser-Busch did not agree to
submit any question related to Vincent’s pension benefits to the arbitrator. Counsel also
informed the union that if it planned to pursue the pension claim in arbitration, it would
No. 09-6065 Teamsters Local Union No.783 v. Anheuser-Busch, Inc. Page 4
need to file a claim in federal court to compel arbitration of the pension claims. The
parties then agreed to suspend the planned hearing before the arbitrator.
A few months later, counsel for Local 783 sent a letter to counsel for Anheuser-
Busch that it was “prepared to arbitrate [the] matter.” Anheuser-Busch’s attorney
responded, denying arbitrability of any pension claim contained within the grievance and
noting that Vincent’s pension claims had been conclusively decided by the appeals
committee. Local 783 filed the underlying complaint, arguing that Anheuser-Busch’s
refusal to arbitrate the grievance violated the CBA and seeking to compel Anheuser-
Busch to arbitrate. The district court concluded that Vincent’s grievance was not
arbitrable and granted summary judgment in favor of Anheuser-Busch. Local 783 timely
filed this appeal, seeking reversal of the district court’s order and entry of an order
directing Anheuser-Busch to arbitrate Vincent’s grievance.
II. Analysis
A. Statute of Limitations
We first address Anheuser-Busch’s contention that Local 783’s suit is time-
barred. Although Anheuser-Busch challenged the timeliness of the complaint filed by
Local 783, the district court stated in a footnote only that it “would be disinclined to find
the complaint time-barred, especially in light of” the postponement of the planned
arbitration hearing. Teamsters Local Union No. 783 v. Anheuser-Busch, Inc., Case No.
3:07-cv-00650-CRS, at *1 n.1 (W.D. Ky. Aug. 13, 2009). The court did not
conclusively make a timeliness determination. Rather, the court “presume[d], for the
purposes of [its] opinion, that the complaint [was] timely.” Id. Before we reach the
merits of the underlying dispute, we first determine whether the complaint was, in fact,
time-barred.
This court has determined that the six-month statute of limitations in Section
10(b) of the National Labor Relations Act “is the most appropriate statute of limitations
to be applied in a union suit against a company to compel arbitration . . . .” McCreedy
v. Local Union No. 971, UAW, et al., 809 F.2d 1232, 1237 (6th Cir. 1987). That statute
No. 09-6065 Teamsters Local Union No.783 v. Anheuser-Busch, Inc. Page 5
begins to run “when the employer takes an unequivocal position that it will not
arbitrate.” Int’l Union v. Cummins, Inc., 434 F.3d 478, 483 (6th Cir. 2006) (quoting
McCreedy, 809 F.2d at 1237). “[T]he employer must essentially determine that
negotiation or persuasion is not feasible before the statute of limitations will begin to
run.” Id. at 484. A statement that a grievance is not arbitrable, which simultaneously
requests additional information, does not amount to an unequivocal position that the
employer will not arbitrate. Id.
In this case, Local 783 filed the complaint on November 26, 2007. Anheuser-
Busch contends that the six-month statute of limitations began to run with a series of
letters it sent in February and March of 2007. While all of the letters stated that
Anheuser-Busch did not agree to arbitrate issues related to pension benefits, all of the
letters also requested that Local 783 clarify the exact nature of its grievance. Further,
a March 19 letter from Anheuser-Busch to the arbitrator stated that the parties “agreed
to postpone” the arbitration hearing date. Because all of these communications seek
additional information, and none indicate a position that Anheuser-Busch believed
negotiation or settlement was not feasible, Local 783’s claim is not barred by the statute
of limitations.
B. Arbitrability of Grievance
Although Local 783’s suit is not time-barred, we nonetheless find that Local
783’s claim is not arbitrable. In deciding whether a particular dispute is arbitrable, the
court “begin[s] with the presumption that national labor policy favors arbitration.”
United Steelworkers v. Cooper Tire & Rubber Co., 474 F.3d 271, 277 (6th Cir. 2007).
Under this strong policy favoring arbitration, the court uses four guiding principles:
1) a party cannot be forced to arbitrate any dispute that it has not
obligated itself by contract to submit to arbitration; 2) unless the parties
clearly and unmistakably provide otherwise, whether a collective
bargaining agreement creates a duty for the parties to arbitrate a
particular grievance is a question for judicial determination; 3) in making
this determination, a court is not to consider the merits of the underlying
claim; and 4) where the agreement contains an arbitration clause, the
court should apply a presumption of arbitrability, resolve any doubts in
No. 09-6065 Teamsters Local Union No.783 v. Anheuser-Busch, Inc. Page 6
favor of arbitration, and 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.
Id. at 277–78 (citing AT & T Techs. Inc. v. Commc’ns Workers, 475 U.S. 643 (1986)).
The presumption of arbitrability is particularly applicable in cases involving broad
arbitration clauses. Cummins, 434 F.3d at 485–86. In such cases, arbitration will be
denied only where the parties have expressly excluded the grievance from arbitration.
Id. at 486.
The arbitration clause in the case at bar provides that “[a]ll other grievances,
claims, disputes or controversies arising under or relating to the interpretation of this
Agreement . . . may be submitted upon written request of either party . . . to arbitration.”
This arbitration clause is therefore a broadly written clause, and arbitration should be
denied in this case only if the parties have expressly excluded the grievance from
arbitration. See Cummins, 434 F.3d at 485–86.
Local 783’s complaint seeks an order compelling Anheuser-Busch “to arbitrate
the Jerry T. Vincent grievance over Section 11 of the collective bargaining agreement
and its effect on pension rights and benefits.” Section 11(b) of the CBA provides in
relevant part that a member of Local 783 who leaves Anheuser-Busch to take a position
of full-time employment with Local 783 shall be allowed to “return to his former
position and his seniority shall continue uninterrupted.” In addition to Section 11, Local
783’s complaint also implicates Section 24 of the CBA by specifically seeking a
determination of Jerry Vincent’s “pension rights and benefits.” Section 24 provides that
Anheuser-Busch “agrees to provide a qualified Pension Plan (see Pension Plan
previously submitted by the Employer). Each employee may obtain a copy of the
Summary Plan Description.”
In granting summary judgment in favor of Anheuser-Busch, the district court
held that “[t]o the extent that Vincent seeks to challenge the administrator’s
determination of his right to benefits under the applicable pension plan, he has not stated
a grievance arising under or relating to the interpretation of the CBA, and therefore has
No. 09-6065 Teamsters Local Union No.783 v. Anheuser-Busch, Inc. Page 7
not presented an arbitrable grievance.” Teamsters Local Union No. 783, at *6.
Additionally, the district court held that Vincent’s claim “is not governed by the ‘05-‘10
CBA.” Id. This second determination appears to be an improper evaluation of the
merits of Vincent’s claim. See Cooper Tire & Rubber Co., 474 F.3d at 277 (noting that
the court should not weigh the merits underlying the claim); Cummins, Inc., 434 F.3d at
486. Nothing in the CBA indicates that the arbitrability of a grievance is limited to
employees who took full-time employment with Local 783 during 2005 to 2010.
However, we find that the district court’s first conclusion—determining that Vincent’s
grievance for pension rights and benefits is not an arbitrable grievance—is correct.
In its complaint, Local 783 sought a determination of rights under the Pension
Plan document as dictated by Section 11 of the CBA, and asserted that Vincent was
entitled to arbitrate his grievance in order to make such a determination.1 However,
Vincent’s grievance is expressly excluded from the arbitration clause by the Pension
Plan document itself. Terms are incorporated by reference into a CBA “where the
underlying contract makes clear reference to a separate document, the identity of the
separate document may be ascertained, and incorporation of the document will not result
in surprise or hardship.” Int’l Ass’n of Machinists & Aerospace Workers v. ISP Chems.,
Inc., 261 F. App’x 841, 848 (6th Cir. 2008) (quoting Standard Bent Glass Corp. v.
Glassrobots Oy, 333 F.3d 440, 447 (3d Cir. 2007)); see also United Steelworkers of Am.
v. Commonwealth Aluminum Corp., 162 F.3d 447, 449 (6th Cir. 1998) (noting that
insurance benefits booklets were incorporated by reference into CBA where CBA
referred to booklets by name); Rinard v. Eastern Co., 978 F.2d 265, 269 n.3 (6th Cir.
1992) (stating that for terms to be incorporated by reference, “the reference must be
clear and unequivocal, and must be called to the attention of the other party, he must
consent thereto, and the terms of the incorporated document must be known or easily
1
Local 783’s complaint was vague, and despite Anheuser-Busch’s repeated requests, Local 783
refused to clarify the complaint. On appeal, it still remained unclear whether Local 783 was seeking a
determination of rights under the Pension Plan, general rights under Section 11 without reference to any
specific pension plan, or some other pension plan rights outside of those dictated by the existing Pension
Plan. However, when questioned at oral argument, counsel for Local 783 admitted that the only benefits
in dispute were pension rights, and that those rights specifically came from the Pension Plan referenced
in Section 24 of the CBA, and no other source.
No. 09-6065 Teamsters Local Union No.783 v. Anheuser-Busch, Inc. Page 8
available to the contracting parties”). Moreover, a grievance is not subject to a broadly
worded arbitration clause where the particular grievance has been expressly excluded
from the arbitration clause. Cummins, Inc., 434 F.3d at 486.
In its brief to this court, Anheuser-Busch argues that Vincent’s grievance is
expressly excluded from the arbitration clause because Section 24 of the CBA references
the Pension Plan and the Pension Plan explicitly provides an alternate procedural
framework for resolving pension disputes. We agree. CBA Section 24 clearly
references and identifies the Pension Plan document, and Local 783 has given no
indication that it would be surprised or suffer undue hardship by the incorporation.
Thus, Section 24 incorporates the Pension Plan by reference into the CBA. See ISP
Chems., Inc., 261 F. App’x at 848.
Furthermore, the Pension Plan clearly provides a specific mechanism for
resolving all grievances related to pension rights. Specifically, Section 14.3 provides a
detailed framework by which an individual can make a claim for pension benefits to the
plan director and appeal the denial of a claim to an appeal committee. This same section
also states that the appeal committee “shall have full and exclusive authority and
discretion to apply, interpret and construe the provisions of the Plan.” Further, the
Pension Plan provides a mechanism for a claimant to file a lawsuit if the claimant
disagrees with the committee’s determination, and it also expressly states that the
claimant consents to limited judicial review, based on a rational basis standard, over any
decision of the appeal committee. Based on these alternative dispute resolution
provisions set forth in the Pension Plan, a grievance under Section 11 of the CBA
seeking a determination of rights under the Pension Plan would be expressly excluded
from the arbitration clause. See Commonwealth Aluminum Corp., 162 F.3d at 451–52.
Local 783 nonetheless argues that the grievance falls within the scope of the
arbitration clause because the Pension Plan administrators could not consider how CBA
Section 11(b) affected Vincent’s pension rights. In other words, Local 783 seems to be
arguing that because the Pension Plan administrators could not consider the terms of the
CBA, this court should compel Anheuser-Busch to allow an arbitrator to interpret the
No. 09-6065 Teamsters Local Union No.783 v. Anheuser-Busch, Inc. Page 9
terms of the Pension Plan. Aside from the obvious tension this ruling would create with
the express terms of the Pension Plan, the argument also lacks merit. The Pension Plan
states that “[c]ertain benefits described in the Plan reflect provisions agreed to in
Collective Bargaining Agreements between certain Participating Employers and
applicable Unions.” And numerous provisions within the Pension Plan provide special
benefits and programs for members of certain local unions. Thus, Local 783’s complaint
that Pension Plan administrators could not consider CBA Section 11 has more to do with
its own bargained-for terms under the Pension Plan, and not the arbitrability of its
grievance.
Our conclusion that a grievance for rights under the Pension Plan is not arbitrable
finds support in the case law of both this circuit and our sister circuits. Compare
Commonwealth Aluminum, 162 F.3d at 451–52 (holding that dispute was not subject to
arbitration where insurance booklets incorporated by reference into CBA provided for
alternate dispute resolution mechanism) and Int’l Ass’n of Machinists & Aerospace
Workers, Dist. No. 10 v. Waukesha Engine Div., Dresser Indus., Inc., 17 F.3d 196,
198–99 (7th Cir. 1994) (holding that dispute over medical benefits was not subject to
arbitration where the medical plan provided an alternative review procedure), with
Cooper Tire & Rubber Co., 474 F.3d at 279–80 (holding that dispute over side
agreement within the scope of the CBA was subject to arbitration where side agreement
did not provide for alternative dispute resolution procedure) and United Steelworkers of
Am. v. Mead Corp., Fine Paper Div., 21 F.3d 128, 132 (6th Cir. 1994) (holding dispute
over retirement plan was subject to arbitration where CBA required company to provide
retirement plan and no evidence indicated that grievance was excluded from arbitration).
Thus, any grievance related to Pension Plan rights and benefits is explicitly excluded
from arbitration.
In its briefs, Local 783 also argues that its grievance solely involves
interpretation of CBA Section 11(b) and, therefore, comes within the scope of the
arbitration clause. It further argues that whether an interpretation of Section 11(b)
implicates pension benefits is inconsequential to the issue of arbitrability and that to hold
No. 09-6065 Teamsters Local Union No.783 v. Anheuser-Busch, Inc. Page 10
otherwise would be an improper evaluation on the merits of its grievance. This
argument lacks merit for several reasons.
First, Local 783’s complaint states that it seeks a determination of Vincent’s
“pension rights and benefits,” which inextricably links the complaint to CBA Section 24
and the Pension Plan. Moreover, the parties have expressly agreed that interpretation
of pension rights and benefits under the Pension Plan is exclusively the authority of
Pension Plan administrators. Local 783’s argument that its grievance only involves
interpretation of CBA Section 11(b) reads out the next clause of its complaint, which
seeks a determination on pension rights and benefits. Moreover, Local 783’s attempt to
compel arbitration based on the term “seniority,” as it relates to pension rights and
benefits, does not change the underlying subject of the grievance: pension rights under
the Pension Plan. Arbitrability principles dictate that “a party cannot be forced to
arbitrate any dispute that it has not obligated itself by contract to submit to arbitration.”
Cooper Tire & Rubber Co., 474 F.3d at 277. Anheuser-Busch has not obligated itself
to arbitrate disputes over pension rights and benefits, and Local 783’s attempt to have
us ignore the correct provision of the CBA that provides pension rights—Section
24—does not allow it to compel arbitration. Furthermore, if we agreed with Local 783’s
logic, a party seeking arbitration could always sidestep exclusions to arbitration clauses
simply by claiming that the right it seeks to enforce exists under a portion of the CBA
not covered by the exclusion.
Of course, if the complaint sought to arbitrate a grievance over CBA Section 11
and its effect on something other than pension benefits, this grievance would be subject
to arbitration. But this is not what the complaint seeks, nor is it what Local 783 argues
to this court. Contrary to Local 783’s contention, this court would not have to evaluate
the merits of its claim to hold that the grievance is excluded from the arbitration clause.
Rather, the court would merely be evaluating the nature of the complaint and how it
relates to the arbitration clause, which is unquestionably within the purview of the court.
See Cooper Tire & Rubber Co., 474 F.3d at 277–78 (stating that the question of
arbitrability is one for judicial determination).
No. 09-6065 Teamsters Local Union No.783 v. Anheuser-Busch, Inc. Page 11
Finally, the cases that Local 783 cites do not support its position that its
grievance—however it may be construed—is subject to arbitration. Local 783’s reliance
on Int’l Union, United Auto. Aerospace and Agric. Implement Workers of Am. v.
Federal-Mogul Corp., No. 06-CV-15363-DT, 2007 WL 1888802 (E.D. Mich. June 29,
2007), is misplaced because in that case the complaint sought to compel arbitration on
the employees’ termination status under the CBA and did not make any reference to how
the termination status effected benefits, which was covered by a different dispute
resolution provision. Id. at *1. In this case, Local 783 seeks arbitration over Section 11
of the CBA and “its effect upon pension rights and benefits,” which makes it impossible
to divorce its grievance from the provisions of the Pension Plan document. Unlike the
facts in Federal-Mogul, where the arbitration decision could impact a determination of
benefits, Local 783 is explicitly seeking a determination on pension rights and benefits.
Further, none of the other cases relied on by Local 783 involves the situation where a
party attempts to arbitrate an issue expressly excluded from the arbitration clause. See,
e.g., Local 589, Int’l Ladies’ Garment Workers’ Union, AFL-CIO, v. Kellwood Co.,
592 F.2d 1008, 1012 (8th Cir. 1979) (holding arbitrable dispute over pension benefits
where dispute concerned former employees’ rights and company’s obligations under
CBA); Bressette v. Int’l Talc Co., 527 F.2d 211, 215 (2d Cir. 1975) (holding arbitrable
a dispute over whether company’s termination of business violated the CBA where
arbitration clause did not exclude this dispute); United Steelworkers of Am., AFl-CIO-
CLC v. Gen. Steel Indus., 499 F.2d 215, 219 (8th Cir. 1974) (holding arbitrable dispute
over benefits where benefits plan specifically made eligibility for benefits dependent on
term in CBA). Thus, regardless of how the grievance is construed, it is not subject to
compelled arbitration.
III. Conclusion
For the foregoing reasons, we AFFIRM the decision of the district court.
No. 09-6065 Teamsters Local Union No.783 v. Anheuser-Busch, Inc. Page 12
__________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
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KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in
part. I join Part II.A. of the majority opinion, concluding that the statute of limitations
does not bar Local 783’s claim because Anheuser-Busch did not unequivocably refuse
to arbitrate more than six months before Local 783 filed the complaint. I dissent from
Part II.B. of the majority opinion regarding the arbitrability of the grievance. Although
the majority properly holds that the arbitration clause is “broadly written” and that
“arbitration should be denied in this case only if the parties have expressly excluded the
grievance from arbitration,” the majority incorrectly fails to require arbitration of the
grievance concerning the implications of the collective bargaining agreement’s provision
in Section 11(b) regarding seniority rights. The interrelationship between CBA § 11(b)
on seniority rights and the Pension Plan is a matter that comes within the scope of the
broad arbitration clause, irrespective of the facts that CBA § 24 references the Pension
Plan and that the Pension Plan has its own dispute-resolution mechanism. Whether there
is a relationship between CBA § 11(b) and the pension claim at issue here and what the
exact nature of that relationship may be are quintessentially issues for the arbitrator to
decide. For this reason, I respectfully dissent from Part II.B. of the majority’s opinion.