Bakery, Confectionery, Tobacco Workers & Grain Millers, Int'l Union AFL-CIO v. Kellogg Co. , 904 F.3d 435 ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0208p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BAKERY, CONFECTIONERY, TOBACCO WORKERS AND ┐
GRAIN MILLERS, INTERNATIONAL UNION AFL-CIO; │
LOCAL UNION NO. 3-G, BAKERY, CONFECTIONERY, │
TOBACCO WORKERS AND GRAIN MILLERS, │
Plaintiffs-Appellees, │
> No. 17-2449
│
v. │
│
│
KELLOGG COMPANY, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:16-cv-01180—Gordon J. Quist, District Judge.
Argued: August 1, 2018
Decided and Filed: September 19, 2018
Before: SILER, MOORE, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ARGUED: Craig H. Lubben, MILLER JOHNSON, Kalamazoo, Michigan, for Appellant.
Devki K. Virk, BREDHOFF & KAISER, P.L.L.C., Washington, D.C., for Appellees.
ON BRIEF: Craig H. Lubben, Keith E. Eastland, MILLER JOHNSON, Kalamazoo, Michigan,
for Appellant. Devki K. Virk, April H. Pullium, BREDHOFF & KAISER, P.L.L.C.,
Washington, D.C., Gordon A. Gregory, GREGORY, MOORE, JEAKLE & BROOKS, PC,
Detroit, Michigan, for Appellees.
No. 17-2449 Bakery, Confectionery, Tobacco et al. v. Kellogg Co. Page 2
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Kellogg Company (“Kellogg”) appeals the
district court’s grant of the motion of the Bakery, Confectionery, Tobacco Workers and Grain
Millers, International Union AFL-CIO, CLC (“International Union”) and Local Union 3-G,
Bakery, Confectionery, Tobacco Workers and Grain Millers (“Local Union 3-G”) (together,
“Unions”) to compel arbitration. For the following reasons, we AFFIRM the district court’s
judgment.
I. BACKGROUND
A. Factual Background
Local Union 3-G represents the employees at Kellogg’s ready-to-eat-cereal production
plant in Battle Creek, Michigan, during collective bargaining. See R. 7 (Am. Compl. ¶¶ 3, 4)
(Page ID #495). Local Union 3-G is also affiliated with the International Union, which
represents employees at additional Kellogg’s plants. Id. ¶ 3 (Page ID #495). “Regular”
employees and “non-regular” employees, including casual employees, make up this bargaining
unit at Battle Creek. R. 11-1 (Mot. Ex. 1, Bidelman Aff. ¶ 10) (Page ID #970); R. 24-2 (Mot.
Ex. A, Kellogg Post-Hr’g Br. at 11) (Page ID #1735). The issues in this action stem from several
agreements—the Master Agreement, the Battle Creek Supplemental Agreement, the
Memorandum of Agreement, and the 2015 Master Agreement. See R. 7 (Am. Compl. ¶¶ 7, 8)
(Page ID #496).
The Master Agreement is a contract between Kellogg, the International Union, and the
local unions at all four plants. R. 7-1 (Am. Compl. Ex. A, Master Agree. at iii) (Page ID #504).
According to the Master Agreement, “[t]he collective bargaining agreement for each of the
bargaining units at the Company’s plants shall be this Agreement and the Supplemental
Agreements between the Company and the Local Union at each respective plant.” Id. at 1 (Page
ID #506). In section 1.01(d), under the heading “scope of the agreement,” the Master Agreement
states that “[t]he term ‘employees’ whenever used in this Agreement and for the purposes hereof
No. 17-2449 Bakery, Confectionery, Tobacco et al. v. Kellogg Co. Page 3
shall include all those employees included in each bargaining unit as defined in each
Supplemental Agreement.” Id. at 2 (Page ID #507). Section 7.01(a), under the heading
“grievance procedure,” then states that “[a] grievance is defined as any dispute involving the
application or interpretation of any provision of this Agreement.” Id. at 44 (Page ID #549).
Under section 7.02(a), which is under the heading “arbitration of grievances,” the Master
Agreement states that “[i]n the event that a grievance arising under either this Agreement or
under one of the respective Supplemental Agreements is not settled during the grievance
procedure, the Union may submit the grievance to arbitration.” Id. at 45–46 (Page ID #550–51).
The Master Agreement also states in section 7.02(e) that “[t]he Arbitration Board shall have no
power to add to, take from, amend, modify or alter this Agreement or any Supplemental
Agreement.” Id. at 48 (Page ID #553).
The Battle Creek Supplemental Agreement, in contrast, is an agreement between Local
Union 3-G and Kellogg. R. 7-2 (Am. Compl. Ex. B, Suppl. Agree. at 1) (Page ID #619). Under
the heading “eligibility,” section 201(a) states that “[b]y the terms of this Supplemental
Agreement, which covers only employees within the bargaining unit, the Company recognizes
the Union as the sole bargaining representative for all employees in the bargaining unit.” Id. at 2
(Page ID #620). Section 201(b) then states that “[t]he bargaining unit is composed of all regular
hourly employees in the Battle Creek plant of the Company.” Id. Under section 301, which is
under the heading “grievance procedure,” the Supplemental Agreement states that “[a] grievance
is defined as any complaint, dispute, or difference of opinion concerning any matter.” Id. at 12
(Page ID #630). Step 5 of section 302 then states that “[i]f a settlement cannot be reached . . .
the matter will be submitted to arbitration in accordance with the procedure provided in Section
7.02 of the Master Agreement.” Id. at 14 (Page ID #632).
The Memorandum of Agreement is appended to the Battle Creek Supplemental
Agreement. R. 7-2 (Am. Compl. Ex. B, Mem. Agree. at 75–121) (Page ID #693–738). Under
the heading “guidelines for utilization of casual employees,” the Memorandum of Agreement
states that “[t]he purpose of this program is to provide regular employees with relief from
extended work schedules through the use of Casual employees” and that “Casual employees will
not be utilized when regular employees are on layoff . . . or when regular employees want to
No. 17-2449 Bakery, Confectionery, Tobacco et al. v. Kellogg Co. Page 4
work overtime.” Id. at 84 (Page ID #701). Paragraph 1 under the same heading then states that
“[t]he terms and conditions of the Supplemental and Master Agreements will not apply to Casual
employees. Only the following fringe benefits will be granted to Casual employees, and they
will not accumulate seniority: Uniforms[,] Lunch and Breaks[,] Shift Differential[,] Wage
Appendix of the Master Agreement-COLA.” Id. For casual employees, paragraph 8 then states
that “[t]he Company may discontinue employment without such action being subject to the
grievance procedure.” Id. at 86 (Page ID #703).
On July 15, 2015, Kellogg and the Unions entered into the 2015 Master Agreement,
which amended the Master Agreement and the Battle Creek Supplemental Agreement. R. 7-3
(Am. Compl. Ex. C, 2015 Master Agree.) (Page ID #739). This 2015 Master Agreement
“established wage rates, a signing ratification bonus for all employees, the establishment of a
transitional employee classification to replace casual employees, and other changes in terms and
conditions of employment for all bargaining unit employees at the Battle Creek plant.” R. 7
(Am. Compl. ¶ 8) (Page ID #496). The ratification bonus was for $15,000. Id. ¶ 9 (Page ID
#496). After the ratification vote occurred, however, Kellogg “refused and failed to pay a
ratification bonus to former casual employees (transitional employees as of August 4, 2016),
seasonal employees and a few regular employees who were on the payroll on August 2, 2015.”
Id. at ¶ 14 (Page ID #497). The parties then went through steps of the grievance procedures, but
Kellogg refused to arbitrate the ratification bonus dispute because it contended that the
arbitration provisions do not apply to casual employees. Id. ¶¶ 16–22 (Page ID #497–99).
B. Procedural Background
On September 26, 2016, Local Union 3-G filed a complaint against Kellogg in the United
States District Court for the Western District of Michigan because of Kellogg’s refusal to
arbitrate. R. 1 (Compl.) (Page ID #1). Local Union 3-G later amended the complaint to add the
International Union as a plaintiff. R. 7 (Am. Compl.) (Page ID #494). The Unions then moved
to compel arbitration. R. 11 (Mot.) (Page ID #953). Kellogg responded, contending that the
district court should not compel arbitration because (1) judicial estoppel prevents the
International Union from arguing that the arbitration provisions apply, (2) the arbitration
No. 17-2449 Bakery, Confectionery, Tobacco et al. v. Kellogg Co. Page 5
provisions do not cover the claims in this action, and (3) the relief requested is beyond the
arbitrator’s authority. R. 12 (Resp. at 14, 16, 20) (Page ID #996, 998, 1002).
Kellogg alleged that judicial estoppel applies because of our decision in Kellogg Co. v.
NLRB, 840 F.3d 322 (6th Cir. 2016).1 Id. at 8 (Page ID #990). That Sixth Circuit case dealt with
a Supplemental Agreement (hereinafter, the “Memphis Supplemental Agreement”) between
Kellogg and Local Union 252-G, which was the local union for Kellogg’s Memphis plant. See
Kellogg, 840 F.3d at 324–25. The International Union was also a party in the Memphis action.
Id. at 322. Kellogg now contends in the Battle Creek action that the Memphis Supplemental
Agreement and the Battle Creek Supplemental Agreement have nearly identical language
regarding casual employees. R. 12 (Resp. at 8) (Page ID #990). According to Kellogg, “[t]he
International and Local Unions successfully argued and admitted to the Sixth Circuit that casual
employees, under contract language virtually identical to the language in the Battle Creek
Agreement, were not covered by the arbitration provisions in the Master or Supplemental
Agreements” in the Memphis action. Id. at 9 (Page ID #991) (emphasis omitted).
In the Battle Creek action, the district court determined that judicial estoppel did not
apply. Bakery, Confectionery, Tobacco Workers Local Union 3-G v. Kellogg Co., No. 1:16-CV-
1180, 2017 WL 4021012, at *5 (W.D. Mich. Sept. 13, 2017), order vacated on reconsideration,
No. 1:16-CV-1180, 2017 WL 6880096 (W.D. Mich. Oct. 19, 2017). In the same initial opinion,
however, the district court determined that the claims in the Battle Creek action were not
arbitrable even though judicial estoppel did not apply because casual employees were not in the
bargaining unit. Id. at *5. Based on this understanding, the district court denied the Unions’
motion to compel arbitration. Id. at *6.
The Unions then moved for reconsideration of the denial of their motion to compel
arbitration. R. 24 (Mot.) (Page ID #1702). In their briefing, the Unions informed the district
court that “casual employees (and other ‘non-regular’ employees) are unquestionably in the
bargaining unit, at Battle Creek and at Kellogg’s other ready-to-eat-cereal plants.” R. 24-1 (Mot.
Br. at 1) (Page ID #1705) (emphasis omitted).
1For clarity, we will refer to the action before this panel as the “Battle Creek action,” and we will refer to
the action in Kellogg, 840 F.3d at 322, as the “Memphis action.”
No. 17-2449 Bakery, Confectionery, Tobacco et al. v. Kellogg Co. Page 6
The district court then examined the Unions’ motion for reconsideration without
requesting a response from Kellogg. See Bakery, Confectionery, Tobacco Workers Local Union
3-G v. Kellogg Co., No. 1:16-CV-1180, 2017 WL 6880096, at *1 n.1 (W.D. Mich. Oct. 19,
2017). According to the district court, its conclusion that casual employees were not part of the
bargaining unit “was a mistaken factual conclusion because the parties do consider casual
employees part of the bargaining unit.” Id. at *2. In light of this mistake, the district court
reevaluated the Unions’ motion to compel arbitration, vacated its prior order and opinion, and
granted the Unions’ motion to compel arbitration. Id. at *3.
Because the district court determined that the case needed to proceed in arbitration, the
district court entered a final judgment. R. 29 (J.) (Page ID #1910). Kellogg then moved for
reconsideration and to amend the judgment. R. 30 (Mot.) (Page ID #1911). Kellogg also
appealed the district court’s judgment and its order granting the Unions’ motion for
reconsideration. R. 31 (Notice of Appeal) (Page ID #1935). The district court denied Kellogg’s
motion for reconsideration, R. 36 (Order at 3) (Page ID #1991), and Kellogg filed an amended
notice of appeal, R. 37 (Am. Notice of Appeal) (Page ID #1992).
II. DISCUSSION
A. The International Union is not judicially estopped from arguing that the arbitration
clauses apply in this action.2
We examine de novo judicial estoppel. See In re Ohio Execution Protocol, 860 F.3d 881,
891 (6th Cir. 2017) (en banc). The Supreme Court has determined that there are three factors
that are helpful to consider for this analysis:
First, a party’s later position must be clearly inconsistent with its earlier position.
Second, courts regularly inquire whether the party has succeeded in persuading a
court to accept that party’s earlier position, so that judicial acceptance of an
inconsistent position in a later proceeding would create the perception that either
the first or the second court was misled. Absent success in a prior proceeding, a
party’s later inconsistent position introduces no risk of inconsistent court
determinations and thus poses little threat to judicial integrity. A third
consideration is whether the party seeking to assert an inconsistent position would
2The International Union was a party in the Memphis action. Local Union 3-G, however, was not.
Therefore, this section applies only to the International Union.
No. 17-2449 Bakery, Confectionery, Tobacco et al. v. Kellogg Co. Page 7
derive an unfair advantage or impose an unfair detriment on the opposing party if
not estopped.
New Hampshire v. Maine, 532 U.S. 742, 750–51 (2001) (quotations and citations omitted).
Kellogg has not shown that judicial estoppel applies. First, Kellogg contends that, in the
Memphis action, the International Union argued that the arbitration provisions do not apply to
casual employees, which is contrary to the position that the International Union now asserts in
this action. See Appellant’s Br. at 28. To support its argument, Kellogg cites various portions of
the International Union’s Memphis-action filings. Id. at 13–15. Kellogg’s reliance on these
documents, however, is misleading because, in the paragraphs that Kellogg cites, the
International Union simply summarized Kellogg’s proposed contractual changes and Kellogg’s
own internal notes. See id. Next, we, the district court, and the NLRB in the Memphis action
did not adopt the International Union’s alleged argument that the arbitration provisions do not
cover casual employees. See Kellogg Co., 840 F.3d at 325–26; McKinney v. Kellogg Co., 33 F.
Supp. 3d 937, 942 (W.D. Tenn. 2014); Kellogg Co., 362 N.L.R.B. 86, at *13 (2015). Lastly,
Kellogg has not shown that the International Union will receive an unfair advantage because a
court has not accepted the International Union’s alleged arguments. Furthermore, it is difficult to
see how Kellogg will experience prejudice when we ultimately agreed with Kellogg’s argument
in the Memphis action. See Kellogg, 840 F.3d at 333. Thus, judicial estoppel does not apply.
B. The arbitration clauses in the Master Agreement and the Battle Creek Supplemental
Agreement apply to the claims in this action.
We review de novo a district court’s decision to compel arbitration. United Steelworkers
v. Cooper Tire & Rubber Co., 474 F.3d 271, 277 (6th Cir. 2007). “[W]e must determine whether
the dispute is arbitrable, meaning that a valid agreement to arbitrate exists between the parties
and that the specific dispute falls within the substantive scope of the agreement.” Teamsters
Local Union 89 v. Kroger Co., 617 F.3d 899, 904 (6th Cir. 2010) (quoting Landis v. Pinnacle
Eye Care, LLC, 537 F.3d 559, 561 (6th Cir. 2008)).
No. 17-2449 Bakery, Confectionery, Tobacco et al. v. Kellogg Co. Page 8
We have highlighted several principles to consider when determining whether a district
court correctly compelled arbitration:
(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 an issue 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 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. (quoting United Steelworkers v. Mead Corp., 21 F.3d 128, 131 (6th Cir. 1994)).
Additionally, we “begin with the presumption that national labor policy favors
arbitration.” Cooper Tire, 474 F.3d at 277. “The presumption in favor of arbitration applies
with particular force in labor disputes between an employer and a union.” Teamsters Local
Union 480 v. United Parcel Serv., Inc., 748 F.3d 281, 288 (6th Cir. 2014). “In cases involving
broad arbitration clauses, moreover, [we] ha[ve] ‘found the presumption of arbitrability
particularly applicable,’ and arbitration will be denied only if an express provision excludes a
particular grievance from that forum.” Int’l Union v. Cummins, Inc., 434 F.3d 478, 485–86 (6th
Cir. 2006) (quoting Mead Corp., 21 F.3d at 131). “[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 interpretation that covers the asserted dispute.” United Parcel,
748 F.3d at 288 (alteration in original) (quoting AT & T Techs., Inc. v. Commc’ns Workers,
475 U.S. 643, 650 (1986)). “Furthermore, any ‘[d]oubts should be resolved in favor of
coverage.’” Id. at 288–89 (alteration in original) (quoting AT & T Techs., 475 U.S. at 650).
“The starting point is . . . the language of the Collective Bargaining Agreement.” Salary
Policy Emp. Panel v. Tenn. Valley Auth., 149 F.3d 485, 491 (6th Cir. 1998). “[E]xtrinsic
evidence . . . can be considered under the Collective Bargaining Agreement where the language
is ambiguous.” Id. at 493. We have stated, however, “that such extrinsic evidence should be
considered by a court only where the language of the Collective Bargaining Agreement is
ambiguous.” Id. at 490.
 No. 17-2449 Bakery, Confectionery, Tobacco et al. v. Kellogg Co. Page 9
1. Contractual Language
a. Presumption of Arbitrability
When a collective bargaining agreement has a broad arbitration clause, the presumption
of arbitrability is particularly applicable. AT & T Techs., 475 U.S. at 650. Courts have found
that arbitration clauses covering all disputes arising from a collective bargaining agreement to be
broad. See, e.g., id. (holding that the presumption was “particularly applicable where the clause
is as broad as the one employed in this case, which provides for arbitration of ‘any differences
arising with respect to the interpretation of this contract or the performance of any obligation
hereunder’”); United Steel Workers v. Century Aluminum, 157 F. App’x 869, 873 (6th Cir. 2005)
(concluding that the presumption applied because the arbitration clause covered “disputes
concerning the interpretation or application of or compliance with the provisions of” the
collective bargaining agreement); Mead Corp., 21 F.3d at 132 (concluding that the presumption
applied because the arbitration clause covered “grievances charging that the Company has
violated this Agreement and involving the interpretation of, or compliance with, this
Agreement”).
The Master Agreement and the Battle Creek Supplemental Agreement contain broad
arbitration clauses. For instance, the Master Agreement states the following regarding
arbitration:
ARTICLE 7
GRIEVANCE PROCEDURE
Section 7.01
(a) A grievance is defined as any dispute involving the application or
interpretation of any provision of this Agreement. . . .
....
ARBITRATION OF GRIEVANCES
Section 7.02
(a) In the event that a grievance arising under either this Agreement or under
one of the respective Supplemental Agreements is not settled during the grievance
procedure, the Union may submit the grievance to arbitration. . . .
No. 17-2449 Bakery, Confectionery, Tobacco et al. v. Kellogg Co. Page 10
Rawle 7-1 (Am. Compl. Ex A, Master Agree. at 44, 45–46) (Page ID #549, 550–51). The Battle
Creek Supplemental Agreement contains similar language:
ARTICLE III
GRIEVANCE PROCEDURE
Section 301
A grievance is defined as any complaint, dispute, or difference of opinion
concerning any matter. . . .
Section 302
....
Step 5. THE UNION NEGOTIATIONS COMMITTEE AND THE
MANAGEMENT NEGOTIATIONS COMMITTEE. . . . . If a settlement cannot
be reached at this point within a reasonable time . . . , the matter will be submitted
to arbitration in accordance with the procedure provided in Section 7.02 of the
Master Agreement.
R. 7-2 (Am. Compl. Ex. B, Suppl. Agree. at 12, 14) (Page ID #630, 632). Based on the language
in these two contracts, if a settlement is not possible, then any type of dispute will proceed in
arbitration. By including all-encompassing arbitration provisions, the presumption of
arbitrability applies.
b. Scope of Exclusion of Arbitrability
When an arbitration clause “ is ‘equally consistent with opposing interpretations, and the
language employed does not clearly and unambiguously describe[ ] the issue or issues excluded
from arbitration, the . . . language cannot be said to expressly exclude that issue.’” Int’l Ass’n of
Machinists v. ISP Chems., Inc., 261 F. App’x 841, 847 (6th Cir. 2008) (alterations in original)
(quoting Century Aluminum, 157 F. App’x at 873–74). When “we cannot say with positive
assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted
dispute, [we] must resolve any doubts in favor of arbitration.” Id. at 849.
No. 17-2449 Bakery, Confectionery, Tobacco et al. v. Kellogg Co. Page 11
The Memorandum of Agreement contains exclusions for when the arbitration provisions
do not apply. For instance, it states the following regarding casual employees:
GUIDELINES FOR UTILIZATION OF CASUAL EMPLOYEES
....
1. The terms and conditions of the Supplemental and Master Agreements will
not apply to Casual employees. Only the following fringe benefits will be granted
to Casual employees, and they will not accumulate seniority:
• Uniforms
• Lunch and Breaks
• Shift Differential
• Wage Appendix of the Master Agreement-COLA
The wage rate is $6.00 less than the job rate for work performed. Once a job
qualification is attained by the Casual employee, the employee is eligible for
$3.00 less than job rate for all work performed.
....
8. The Company may discontinue employment without such action being
subject to the grievance procedure.
R. 7-2 (Am. Compl. Ex. B, Mem. Agree. at 84–86) (Page ID #701–03) (emphasis added). Based
on this language, paragraphs 1 and 8 in the Memorandum of Agreement outline the types of
situations where arbitration does not apply.
Interpreting paragraph 1 is the trickiest, and there are at least two interpretations. First,
paragraph 1 might be stating that all of the “terms and conditions of the Supplemental and
Master Agreements will not apply to Casual employees.” Under this interpretation, none of the
arbitration provisions apply. Under the second interpretation, however, when considering the
second sentence in paragraph 1 regarding fringe benefits, paragraph 1 might instead be referring
to the portions of the “terms and conditions of the Supplemental and Master Agreements” that
address “fringe benefits.” Paragraph 1, therefore, could mean that the terms and conditions do
not apply only to casual employees’ fringe benefits. Furthermore, if paragraph 1 truly applied to
all of the “terms and conditions of the Supplemental and Master Agreements,” then paragraph 8
would not be necessary because the grievance procedures would already not apply under
No. 17-2449 Bakery, Confectionery, Tobacco et al. v. Kellogg Co. Page 12
paragraph 1.3 Because there are two reasonable interpretations of paragraph 1, paragraph 1 does
not expressly exclude casual employees’ complaints from arbitration. See United Parcel,
748 F.3d at 288–89.
Fortunately, paragraph 8 is not as ambiguous. Under paragraph 8, Kellogg can choose
not to have a casual employee’s grievance regarding the discontinuation of employment go to
arbitration. There does not appear to be, however, a second interpretation for this paragraph, so
paragraph 8 describes an express limit to the arbitration provisions. Nevertheless, the issue here
is whether casual employees are entitled to the ratification bonus in the 2015 Master Agreement.
Because this action does not concern the discontinuation of employment, the exclusion in
paragraph 8 does not apply.
2. Extrinsic Evidence
“[I]n the absence of any express provision excluding a particular grievance from
arbitration, . . . only the most forceful evidence of a purpose to exclude the claim from arbitration
can prevail.” AT & T Techs., 475 U.S. at 650 (quoting Steelworkers v. Warrior & Gulf
Navigation Co., 363 U.S. 574 584–85 (1960) (emphasis added)). Kellogg contends again that
the International Union’s position that the arbitration provisions did not apply in the Memphis
action is forceful extrinsic evidence proving that the parties did not intend to arbitrate their
claims. As discussed in the section regarding judicial estoppel, however, the International Union
did not clearly adopt that position.
In summary, the presumption of arbitration applies in this action. The Master Agreement
and the Battle Creek Supplemental Agreement have broad arbitration language. Additionally,
the contractual language does not clearly exclude this action from arbitration. Kellogg,
furthermore, has not provided forceful evidence of intent not to have this action go to arbitration.
Therefore, the parties must arbitrate the claims in this action.
3Kellogg contends that paragraph 8 does not address “arbitration.” See Appellant’s Br. at 45. The Master
Agreement, however, states that arbitration is one step in the grievance procedure. R. 7-1 (Am. Compl. Ex. A,
Master Agree. at 44, 45–46) (Page ID #549, 550–51).
No. 17-2449 Bakery, Confectionery, Tobacco et al. v. Kellogg Co. Page 13
C. An arbitrator would have authority to grant relief.
Kellogg contends that an arbitrator will not have authority to issue a remedy. See
Appellant’s Br. at 50. According to Kellogg, the Master Agreement and the Battle Creek
Supplemental Agreement state that an arbitrator cannot alter the terms of the agreements. Id.
The 2015 Master Agreement contains the provision regarding the $15,000 ratification bonus. Id.
Because the 2015 Master Agreement modified only the Master Agreement, not the Battle Creek
Supplemental Agreement, Kellogg argues that the Battle Creek Supplemental Agreement’s
statement that the terms and conditions of the Master Agreement do not apply to casual
employees still stands. Id. Thus, according to Kellogg, the casual employees are still not
entitled to the $15,000 ratification bonus, so the arbitrator would need to amend the Battle Creek
Supplemental Agreement to grant relief. Id.
For its argument, Kellogg relies on our decision in O-N Minerals Co. v. International
Brotherhood of Boilermakers, 563 F. App’x 380 (6th Cir. 2014). In O-N Minerals, we noted that
there are two steps to determining whether to compel arbitration: “The first is whether the
reluctant party has agreed to arbitrate the grievance, and the second is whether it has given the
arbitrator the power to make the award.” Id. at 384. The arbitration clause in that action stated
that an arbitrator “shall not have jurisdiction or authority to alter in any way the provision of the
agreement.” Id. at 385 (emphasis omitted). Because the union sought to combine two existing
pay scales into an hourly wage, we held that the arbitrator would not have authority to grant
relief. Id. at 386.
Here, in contrast, an arbitrator would have authority to grant relief. The Master
Agreement states that “[t]he Arbitration Board shall have no power to add to, take from, amend,
modify or alter this Agreement or any Supplemental Agreement.” R. 7-1 (Am. Compl. Ex A,
Master Agree. at 48) (Page ID #553). The section regarding arbitration in the Battle Creek
Supplemental Agreement also states that section 7.02 of the Master Agreement applies. R. 7-2
(Am. Compl. Ex. B, Suppl. Agree. at 14) (Page ID #632). Under the 2015 Master Agreement,
however, the “2015 Master Agreement supersedes any Seasonal and Casual language that
conflicts with the Master or Supplemental Agreements.” R. 7-3 (Am. Compl. Ex. C, 2015
Master Agree. at 13) (Page ID #751). Therefore, because the $15,000 ratification bonus is in the
No. 17-2449 Bakery, Confectionery, Tobacco et al. v. Kellogg Co. Page 14
2015 Master Agreement, if an arbitrator determines that casual employees are entitled to the
bonus, the Battle Creek Supplemental Agreement does not stand in the way of an arbitrator
having authority to grant relief.
III. CONCLUSION
For these reasons, we AFFIRM the district court’s judgment.