U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT No. 25-1066 INTERNATIONAL BROTHERHOOD OF… v. Energy Harbor Nuclear Corp

U.S. COURT OF APPEALS FOR THE T HIRD CIRCUIT
No. 25-1066
INTERNATIONAL B ROTHERHOOD OF E LECTRICAL W ORKERS,
L OCAL U NION 29, AFL-CIO
v.
E NERGY HARBOR N UCLEAR C ORP.,
Appellant
_____________________________
Appeal from the U.S. District Court, W.D. Pa.
Judge Cathy Bissoon, No. 2:23-cv-00761
Before: B IBAS, S CIRICA, and S MITH, Circuit Judges
Argued Oct. 29, 2025; Decided Mar. 23, 2026
_____________________________
O PINION OF THE C OURT
B IBAS, Circuit Judge. Even if parties agree to arbitrate
some disputes, not every disagreement must go to an arbitra-
tor. We must heed the scope of their arbitration agreement.
Here, a labor union filed a grievance against management. The
contract contains a broad arbitration clause, so the District
Court sent the grievance to arbitration. But because it falls beyond
the clause’s scope, we will REVERSE .

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I. T WO D ISPUTES OVER E MPLOYEE B ENEFITS
A. Energy Harbor and the Union arbitrate a 2021
benefits dispute
Energy Harbor Nuclear Corporation owned and operated
the Beaver Valley Power Station, a nuclear power plant in
Pennsylvania. IBEW Local 29 is the union that represents
roughly 400 of the plant’s employees. Before October 2021,
the parties’ relationship was governed by both a collective-
bargaining agreement and a set of framework agreements that
led Energy Harbor to operate the plant.
In 2021, the parties had a benefits dispute, so they went to
arbitration. Under the then-existing collective-bargaining
agreement, the Union could either choose Energy Harbor’s
Flexible Benefits Plan or offer its own health care plan. If the
Union chose its own, Energy Harbor had to “contribute pre-
mium payments” to the Union’s plan that were proportional to
the premiums that it paid for its own plan. App. 82. And the
collective bargaining agreement mandated that Energy Har-
bor’s “monthly contributions [to the Union plan] … be increased
by the same percentage as any increase incurred by [Energy
Harbor’s] Health Care Plan from the previous year.” App. 83.
Under the framework agreements, Energy Harbor also had
to “provide [employees] the same [healthcare] benefits” that its
predecessor company did. App. 206 (second alteration in the
original). The Union alleged that Energy Harbor had violated
these agreements by providing worse benefits than its prede-
cessor. In February 2022, the arbitrator agreed. She found that,
under the matching requirement, Energy Harbor should have
raised its 2021 contributions by 6.7% rather than the 2.77%

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increase that it actually paid, and ordered the company to pay
the unions the difference. She said nothing about 2022, and
nothing in the order changed Energy Harbor’s health care plan.
B. The parties execute a new agreement, and a new dis-
pute arises for 2022
On October 1, 2021, Energy Harbor and the Union signed
a new collective-bargaining agreement. Three provisions are
relevant. First, as before, if the Union chose to offer its own
health care plan, Energy Harbor had to contribute premiums to
it. And it again had to “increase[ ]” its contribution to the Union
plan “by the same percentage as any increase incurred by the
Company’s Health Care Plan from the previous year.” App. 83
(Art. VIII, ¶ C.2(a)). Second, the parties agreed to arbitrate dis-
putes “as to the interpretation, application, or operation of any
provision of” the collective-bargaining agreement, as well as
“any matter relating to the interpretation of” the agreement.
App. 86. Third, under the merger clause, “any and all prior
agreements, whether reduced to writing or not,” were “null and
void and of no further force” unless identified and appended to
the new collective-bargaining agreement. App. 89 (Art. XI).
Neither the February 2022 arbitration award, which assessed
Energy Harbor’s 2021 contributions, nor the framework agree-
ments were identified or appended to the new agreement.
Later in 2022, the Union thought that Energy Harbor was
still underpaying the contributions it owed the Union health
care plan. So the Union filed a grievance, alleging that “Energy
Harbor failed to adjust the 2022 health care contributions by
the percentage needed to satisfy the [February 2022] arbitra-
tion award.” App. 137. The Union argued that, in setting its

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2022 contribution amounts, Energy Harbor had failed to account
for the 2021 benefits-payments increases awarded by the arbi-
trator. In turn, the Union contended, the Company owed higher
contributions for 2022. Energy Harbor refused to arbitrate,
asserting that the grievance related to the arbitration award and
the framework agreements, not the new collective-bargaining
agreement, so the new agreement’s arbitration clause did not
apply.
Then the Union filed this suit in federal district court to
compel Energy Harbor to arbitrate. Both sides moved for sum-
mary judgment. The magistrate judge recommended granting
the Union’s motion and denying Energy Harbor’s. She noted
that the “broad” arbitration clause “provides that a party may
compel arbitration ‘of any matter relating to the interpretation
of this Agreement.’ ” App. 9, 11 (quoting Art. IX, ¶ A). She set
aside Energy Harbor’s “extrinsic evidence … related to the rea-
son for the Union’s demanded increase” because it “goes to the
merits,” not arbitrability. App. 10. Instead, she reasoned that
because the grievance challenged Energy Harbor’s compliance
with the contribution-increase provision (Art. VIII, ¶ C.2(a)),
it implicated the arbitration clause. App. 11. And because
Energy Harbor had no “forceful evidence of a purpose to ex-
clude the claim at issue,” the arbitration clause applied. Id. The
District Court adopted the magistrate judge’s recommendation.
II.T HIS D ISPUTE F ALLS O UTSIDE
THE A RBITRATION C LAUSE
We review the District Court’s reading of the arbitration
provision de novo. Rite Aid of Pa., Inc. v. United Food & Com.
Workers Union, Loc. 1776, 595 F.3d 128, 131 (3d Cir. 2010).

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Federal law governs interpretation of collective-bargaining
agreements. Sheet Metal Workers, Loc. 19 v. 2300 Grp., Inc.,
949 F.2d 1274, 1284 (3d Cir. 1991). But federal law follows
general rules of state contract law unless federal labor law con-
flicts with those rules. Id.
To decide whether an arbitration clause applies, we first ask
whether it is broad. Rite Aid, 595 F.3d at 131. If so, we presume
the dispute arbitrable. Id. The arbitration clause here is broad.
It covers “any dispute or difference” regarding the “interpreta-
tion, application, or operation of any provision of this agree-
ment.” App. 86 (Art. IX, ¶ A). That resembles another clause
that we found broad. See Trap Rock Indus., Inc. v. Loc. 825,
Int’l Union of Operating Eng’rs, AFL-CIO, 982 F.2d 884, 888
n.5 (3d Cir. 1992) (describing as broad a clause that applied to
“[a]ny dispute arising out of a claimed violation of this Agree-
ment”). So we presume the parties’ dispute arbitrable.
Next, we ask if the parties’ dispute falls outside the clause’s
scope. Rite Aid, 595 F.3d at 131. To do that, we consider not
only the clause itself, but also any other relevant contractual
provisions; we are looking for “the most forceful evidence of a
purpose to exclude the claim from arbitration.” AT & T Techs.,
Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 650 (1986)
(internal quotation marks omitted). “Where an arbitration
clause in a collective bargaining agreement limits arbitration to
those disputes which require interpretation of the agreement,
as it does here, a grievance is excluded from arbitration unless
it arises from a specific provision in the agreement.” Rite Aid,
595 F.3d at 132.

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This grievance is plainly beyond the arbitration clause’s
scope. It does not claim that the collective-bargaining agree-
ment incorporated the arbitration award. Rather, it challenges
Energy Harbor’s compliance with its obligation to “adjust the
2022 health care contributions” under Article VIII, ¶ C.2. App.
137. The District Court thought that the grievance’s reference
to ¶ C.2 was enough to make the dispute arbitrable. But that
view is far too loose. True, this dispute is about how much Energy
Harbor had to contribute toward the Union’s health care plan.
But that is not enough. Article VIII does not set a base rate of
contributions or mandate a particular increase in payments.
Rather, it requires only that Energy Harbor match any increases
that it makes to its own health care plan each year.
Nothing in the record suggests that Energy Harbor increased
funding for its own health care plan from 2021 to 2022. At oral
argument, the Union’s counsel conceded as much. So the dis-
pute could not arise under Article VIII, ¶ C.2(a). In any event,
the Union’s grievance rests not on such an increase, but on the
arbitration award. The award is not an increase that Energy
Harbor’s health care plan “incurred” from 2021 to 2022. For
confirmation, we need look no further than to the arbitration
award itself, which required compensation directly to the unions,
leaving Energy Harbor’s health plan unchanged. Any right that
the Union claims flows only from that award, not from the
collective-bargaining agreement. The Union’s citation of the
increase-matching provision is just window dressing.
We need not decide what the arbitration award requires of
its own force. The Union does not argue that the award itself
requires a lasting increase in Energy Harbor’s 2022 plan con-
tributions. Even if it did, that would not call for arbitration

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under this agreement. Nor does the Union raise any other pro-
vision of the agreement, parol evidence, a course of dealing, or
the like.
Resisting our conclusion, the Union protests that looking
into whether Energy Harbor’s own health care plan expenses
increased “inquire[s] into the merits,” which courts supposedly
may not do in assessing arbitrability. Appellee’s Br. 30. But
“where the merits and arbitrability questions are inextricably
intertwined, a court’s arbitrability decision may, of necessity,
touch incidentally on the merits.” Rite Aid, 535 F.3d at 136.
For instance, we have looked into the merits to determine and
reject arbitrability when a collective-bargaining agreement
covered employees as of a date but the plaintiffs had retired
before that date. See Cup v. Ampco Pittsburgh Corp., 903 F.3d
58, 63 (3d Cir. 2018).
This case is similar. A dispute is not arbitrable if the “con-
text” of the collective-bargaining agreement makes clear that
the agreement has “nothing to do with” the rights that the Un-
ion asserted in its grievance. Rite Aid, 595 F.3d at 135. So we
must peek at the merits to decide whether the contribution dis-
crepancy fits the “context” of Article VIII, ¶ C.2. Id. Otherwise,
any party could gin up access to arbitration just by asserting
that the other party had failed to live up to its duties. As we have
observed, “[u]nquestioning acceptance of [one party’s] charac-
terization of its claims is inconsistent with our duty to deter-
mine arbitrability because it leaves the scope of the arbitration
clause subject to the unilateral and unfettered discretion
of” the party seeking to arbitrate. Id. at 132 (internal quotation
marks omitted). Our precedent requires a closer look under the
hood.

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The Union also relies on one of our nonprecedential deci-
sions, which of course does not bind us. SEIU Healthcare Pa.
v. Heritage Vally Health Sys., 842 F. App’x 757 (3d Cir. 2021).
In any event, that case is inapt. In SEIU, the parties did not
dispute that the grievance arose under a provision of their
agreement. Id. at 759. Rather, they disputed whether a different
term of the agreement created a separate dispute-resolution
path. Id. Here, by contrast, the Union’s right does not arise under
the collective-bargaining agreement at all.
We do not disturb federal labor law’s strong preference for
arbitration. Only claims to arbitrate rights that have “nothing
to do with” the rights covered by the collective-bargaining
agreement should be rejected. Rite Aid, 595 F.3d at 135. This
grievance “has nothing to do with” the Union’s rights under the
collective-bargaining agreement because, as its counsel con-
cedes, there is no evidence that Energy Harbor incurred an
increase in its health care plan costs from 2021 to 2022.
As our dissenting colleague observes, we agree on much.
Dissent Part I. We disagree primarily over what facts a party
must show to get to arbitration. In particular, our colleague
agrees that the record suggests that Energy Harbor’s health
plan did not incur an increase from 2021 to 2022. Dissent Part
II. That conclusion is sound, especially since the arbitrator
awarded payment directly to the unions and did not change the
Energy Harbor health care plan. But our colleague would hold
that these facts are “not for us to decide.” Id. We disagree be-
cause we think these are the same sort of predicate facts as “de-
ciding whether the union was in fact entitled to store access,”
which our colleague agrees was fine in Rite Aid. Dissent Part I
(citing Rite Aid, 595 F.3d at 136).

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Our colleague would also find that “an ‘assert[ion] that the
other party [ ] failed to live up to its duties’ under the CBA is
all that is required to gain access to arbitration.” Dissent Part
III (quoting Maj. Op. at Part II) (alteration and emphasis in
original). But in Rite Aid, the party seeking to arbitrate also
asserted that the employer had failed to live up to its duties un-
der three specific provisions of their collective-bargaining
agreement. Even so, we held that the dispute was not arbitrable.
Rite Aid, 595 F.3d at 137. Recognizing this, our colleague
would distinguish this case from Rite Aid on the facts. Because
we think that deciding whether Energy Harbor’s health care
plan incurred an increase from 2021 to 2022 is not too different
from deciding whether the union was in fact entitled to store
access, we part ways from our colleague on how to apply Rite
Aid to these facts.
* * * * *
Federal labor law strongly favors arbitration. But there are
limits. If the rights claimed are not covered by the contract that
contains the arbitration clause, then the dispute falls outside the
clause’s limits. We will thus REVERSE and REMAND with instruc-
tions to grant summary judgment for Energy Harbor.
Counsel for Appellant
Eric Baisden [Argued]
BENESCH FRIEDLANDER C OPLAN & ARONOFF
Counsel for Appellee
Robert A. Eberle [Argued]
E BERLE & B UNDICK

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SMITH, Circuit Judge, dissenting.
No doubt, the United States Supreme Court did not
intend to slight the Article III judiciary when it recognized “the
greater institutional competence of arbitrators in interpreting
collective-bargaining agreements.” AT & T Techs., Inc. v.
Commc'ns Workers of Am., 475 U.S. 643, 650 (1986). It is,
though, inherent institutional competence that undergirds the
“strong” policy favoring the arbitration of labor disputes.
United Steelworkers of Am., AFL-CIO-CLC v. Rohm & Haas
Co., 522 F.3d 324, 330 (3d Cir. 2008). Labor arbitrators are
typically chosen for their familiarity with industry practice and
the particular shop(s) at issue, thus will be cognizant of “the
effect upon productivity of a particular result, its consequence
to the morale of the shop,” and “whether tensions will be
heightened or diminished.” United Steelworkers of Am. v.
Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960). Even
“[t]he ablest judge cannot be expected to bring the same
experience and competence to bear upon the determination of
a grievance[.]” Id.; see Schneider Moving & Storage Co. v.
Robbins, 466 U.S. 364, 371–72 (1984) (“[The presumption of
arbitrability in labor disputes] furthers the national labor policy
of peaceful resolution of labor disputes and thus best accords
with the parties’ presumed objectives in pursuing collective
bargaining.”).
Flowing from this policy in favor of arbitration is the
principle that, “even if it appears to the court to be frivolous,
[a] union’s claim that [an] employer has violated [a] collective-

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bargaining agreement is to be decided, not by the court asked
to order arbitration, but as the parties have agreed, by the
arbitrator.” AT & T, 475 U.S. at 649–50. That principle applies
no less to the case before us. Here, the union seeks proper
redress for a violation of an applicable CBA provision and thus
its claim must be decided by an arbitrator. Accordingly, I
dissent from the majority’s holding that the grievance filed by
Local 29 of the I.B.E.W. falls outside the reach of the
applicable CBA’s arbitration provision.
I
There is much here upon which the majority and I can
agree. To begin, I agree that the arbitration clause is broad.
Majority Op. at Section II. As such, we presume the dispute
arbitrable. See Rite Aid of Pennsylvania, Inc. v. United Food &
Com. Workers Union, Loc. 1776, 595 F.3d 128, 131 (3d Cir.
2010). This presumption “may be rebutted only by ‘the most
forceful evidence of a purpose to exclude the claim from
arbitration.’” Id. (citing AT & T, 475 U.S. at 650). Described as
such, it is not just any presumption. It erects a very high hurdle
for a party seeking to overcome it. However, “arbitration is still
a creature of contract and a court cannot call for arbitration of
matters outside of the scope of the arbitration clause.” Rohm &
Haas Co., 522 F.3d at 332. And as the majority correctly points
out, a grievance is within the scope of a broad arbitration
provision when it “arises from a specific provision in the
agreement.” Rite Aid, 595 F.3d at 132. I believe that the
Union’s grievance does just that.

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In order to determine whether a grievance “arises from”
a specific CBA provision, it is first necessary to tease out the
subtle yet important difference between a frivolous claim and
a claim that falls outside the scope of a CBA’s broad arbitration
provision. A frivolous claim is one that “lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325
(1989). The Supreme Court’s decision in United Steelworkers
of America v. American Manufacturing Co. illustrates that
principle. 363 U.S. 564 (1960). In American Manufacturing,
union-member James Sparks was involved in an accident
which left him—according to his physician—“25%
permanently partially disabled.” Id. at 565 (internal quotations
omitted). Following the accident, Sparks was not permitted to
return to his old job. Id. In response, his union filed a grievance
seeking Sparks’ reinstatement based upon a CBA clause
mandating that the employer “employ and promote” based on
seniority “where ability and efficiency are equal.” Id. at 565–
66 (emphasis added). The Sixth Circuit held that the clear
deleterious effect of Sparks’ injury made the grievance, and the
invocation of the relevant CBA clause, “frivolous,” and thus
not subject to arbitration. 264 F.2d 624, 628 (6th Cir. 1959).
The Supreme Court reversed, reasoning that “[t]he union
claimed . . . that the company had violated a specific provision
of the contract,” and that the Court is “confined to ascertaining
whether the party seeking arbitration is making a claim which
on its face is governed by the contract.” 363 U.S. at 568–69. In
short, frivolous claims may still be arbitrable. If the union

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alleges a violation of a right contained in the governing CBA,
the court cannot scrutinize why the union thinks that right has
been violated.
Contrast American Manufacturing with this Court’s
decisions in both Cup v. Ampco Pittsburgh Corporation and
Rite Aid. In Cup, a union filed a grievance challenging an
employer’s elimination of retirees from its health plan. 903
F.3d 58, 60 (3d Cir. 2018). Though the at-issue CBA contained
no provision applicable to retiree medical benefits, the union
argued that (1) retirees fell under the definition of “employee”
under the CBA, and (2) the elimination violated a
memorandum of agreement predating the CBA and allegedly
incorporated into the CBA by reference. Id. at 63. We
characterized our duty there to be “ascertain[ing] whether the
CBA provides for retiree health benefits.” Id. We concluded
that it did not. Id. at 64. Notice, however, that we followed the
direction of American Manufacturing: our inquiry focused on
whether the asserted right was provided for in the CBA. Cf.
Litton Fin. Printing Div., a Div. of Litton Bus. Sys., Inc. v.
N.L.R.B., 501 U.S. 190 (1991) (refusing to compel arbitration
where the disputed right did not survive the expiration of the
CBA).
Rite Aid tells a similar story. In Rite Aid, the union
submitted a grievance alleging that Rite Aid violated a CBA by
preventing union representatives from soliciting employees
inside newly acquired Rite Aid stores. 595 F.3d at 130. The
union cited three provisions of the CBA which it claimed gave

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it the right to store-access. Id. Because the merits of the union’s
claim turned on whether the CBA guaranteed a right to store
access, determining arbitrability—whether the claim fell
within the scope of the CBA—necessarily also decided the
merits issue. Id. at 136. As described by the Rite Aid court, “the
merits and arbitrability questions [were] inextricably
intertwined,” meaning “[the] court’s arbitrability decision may,
of necessity, touch incidentally on the merits.” Id. We, in turn,
examined each of the three cited provisions and determined
that none gave the union a right to solicit inside newly acquired
stores. Id. at 132–36.
The majority sees the instant case as similar to Rite Aid.
Majority Op. at Section II (“[W]e think that deciding whether
Energy Harbor’s health care plan incurred an increase from
2021 to 2022 is not too different from deciding whether the
union was in fact entitled to store access, . . . .”). The case
before us, though, does not present a circumstance where the
merits and arbitrability are “inextricably intertwined.” In Rite
Aid, the relevant determination—whether the CBA entitled the
union to challenge store access—could not be made without
also deciding whether the union was in fact entitled to store
access. Id. Here, the relevant determination—whether the CBA
entitles the union to challenge adjustments in healthcare
contributions—can (and should) be made without reference to
whether the union is in fact entitled to an adjustment (i.e.
whether Energy Harbor’s plan in fact incurred an increase). As
in Cup, our focus in Rite Aid remained on whether the asserted

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right could be found in the CBA. In my view, this binding
caselaw mandates we do the same here.
II
Article VIII, ¶C.2, of the CBA states, in relevant part:
“the company’s monthly contributions will be increased by the
same percentage as any increase incurred by the Company’s
Health Care Plan from the previous year.” App’x at 83. And the
majority and I agree that the union’s grievance “challenges
Energy Harbor’s compliance with its obligation to ‘adjust the
2022 health care contributions’ under article VIII, ¶C.2.’”
Majority Op. at Section II. In other words, Energy Harbor is
asserting its right under the CBA to “adjust the 2022 health care
contributions.” App’x at 31. This right, like the right at issue in
American Manufacturing and unlike the rights at issue in Cup
and Rite Aid, is plainly found in CBA article VIII, ¶C.2.
The majority instead finds that the “context” of the
agreement makes clear that the CBA has “nothing to do with”
the right asserted in the union’s grievance. Majority Op. at
Section II. In effect, this is a finding that the CBA—which
governs increases in “the company’s monthly contributions,”
App’x at 83—has “nothing to do with” “Energy Harbor’s . . .
obligation ‘to adjust the 2022 health care contributions.’”
Majority Op. at Section II. The majority’s reliance on “context”
suggests to me not only a counterintuitive conclusion but also
an impermissible determination of the grievance’s merits.

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The majority first states that the CBA “requires only that
Energy Harbor match any increases that it makes to its own
health care plan each year.” Majority Op. at Section II. Then,
it finds that “[n]othing in the record suggests that Energy
Harbor increased funding for its own health care plan from
2021 to 2022,”1 meaning “the dispute could not arise under
[the CBA].” Id. Whether the record suggests that Energy
Harbor increased funding for its health care plan is, however,
irrelevant to the inquiry mandated by the Supreme Court and
our own precedent: whether the CBA entitles the union to
challenge adjustments in healthcare contributions.
The majority instead mirrors the Sixth Circuit’s analysis
in American Manufacturing, see 264 F.2d at 628 (“[The
evidence proffered by the union] is so lacking in probative
value with respect to the issue in this case as to compel the
conclusion that the so-called claim or grievance is a frivolous,
patently baseless one, not subject to arbitration under the
[CBA].”), which the Supreme Court rejected, see 363 U.S. at
569 (“Arbitration should have been ordered. When the
1 The majority states that this point was conceded by the
union at oral argument; however, that is only true if one accepts
the majority’s merits argument that “[t]he award is not an
increase that Energy Harbor’s health plan “incurred” from
2021 to 2022.” I agree with the majority that the record
suggests it is not. Majority Op. at Section II. But that is not for
us to decide, which is the very heart of my disagreement with
the majority.

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judiciary undertakes to determine the merits of a grievance
under the guise of interpreting the grievance procedure of
collective bargaining agreements, it usurps a function which
under that regime is entrusted to the arbitration tribunal.”). The
only difference here is that, while the Sixth Circuit’s ultimate
conclusion sounded in the merits, the majority’s conclusion is
framed in terms of the agreement’s scope. The basis—the
frivolousness of the claim—remains the same.
III
Finally, the majority expands the relevant policy
concerns, thereby permitting its intrusion into the merits. In AT
& T, the Supreme Court worried that a labor arbitrator might
be “empowered ‘to impose obligations outside the contract.”2
475 U.S. at 651. Similarly, the Rite Aid court worried that the
“scope of the arbitration clause” may be “subject to the
unilateral and unfettered discretion of the Union.” Rite Aid, 595
F.3d at 132 (quoting E.M. Diagnostic Sys., Inc. v. Loc. 169, Int'l
Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of
Am., 812 F.2d 91, 95 (3d Cir. 1987)). Both formulations share
the concern that a party may gain access to arbitration over
2 The Supreme Court was concerned that this would result from
a labor arbitrator’s ability to determine her own jurisdiction.
AT & T, 475 U.S. at 651. Though this case concerns the union’s
discretion rather than that of the arbitrator, the “wrong” to be
avoided remains the same.

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rights not contained in the CBA.3 But that is not what troubles
the majority.
Instead, the majority expresses a concern that “any party
could gin up access to arbitration just by asserting that the other
party had failed to live up to its duties.” Majority Op. at Section
II. However, an “assert[ion] that the other party [] failed to live
up to its duties” under the CBA is all that is required to gain
access to arbitration.4 The only alternative, seemingly
endorsed by the majority but rejected by the Supreme Court, is
that the party must make a meritorious or nonfrivolous
assertion that the other party failed to live up to its CBA duties.
See American Manufacturing, 363 U.S. at 568 (“The
agreement is to submit all grievances to arbitration, not merely
those which the court will deem meritorious.”).
3 The union’s grievance does not implicate this concern. Were
it to succeed, the union’s relief would be limited to an
adjustment in contributions as governed by the CBA. Energy
Harbor runs no risk of being bound by terms or obligations
beyond the CBA’s scope.
4 In response, the majority points out that the Rite Aid court
held a dispute not arbitrable despite the union’s assertion that
the other party breached the CBA. Majority Op. at Section II.
This misses the mark. It is not that a party need assert only that
the CBA creates a duty, but rather that a party need only assert
that a specific duty created by the CBA has been breached. The
union in Rite Aid asserted the former, and was found to be
incorrect. The union here asserts the latter.

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IV
I am not aware of any instance where this court has held
that a union cannot compel arbitration when it invokes a right
squarely contained in a CBA with a broad arbitration clause.
Doing so contradicts this court’s precedent and undermines
policy considerations to which the Supreme Court has given
voice. Accordingly, I respectfully dissent.

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