United Food & Commercial Workers v. Kroger Co., 51 F.4th 197

Background

KLPI (a Kroger subsidiary) and United Food & Commercial Workers Local 1995 are parties to a CBA covering "stores" in the Kroger Company, Nashville Division; the CBA contains a broad arbitration clause for disputes about interpretation or application of the CBA.
The Kroger Company’s Supply Chain Division opened the Knoxville Local Fulfillment Center (a warehouse/fulfillment operation); the Union filed a grievance claiming the facility is a "store" under Article 3 § A and that its pickers/drivers are covered employees.
KLPI refused to process or arbitrate the grievance, asserting the Fulfillment Center is a warehouse run by the Supply Chain Division (and employed by others), not a KLPI store, so the CBA does not cover it.
The Union moved for judgment on the pleadings under Fed. R. Civ. P. 12(c) to compel arbitration; the district court granted the motion as to KLPI and ordered arbitration (denying relief as to The Kroger Company); KLPI appealed.
The Sixth Circuit panel majority affirmed: it found the grievance falls within the arbitration clause, declined to treat the contested factual/merits points as excluding arbitration, and held federal courts have jurisdiction (NLRB preemption does not bar arbitration here).

Issues

Issue	Plaintiff's Argument (Union)	Defendant's Argument (KLPI)	Held
Does the Union's grievance fall within the CBA's arbitration clause?	Grievance alleges interpretation/application of Article 3 § A (new-store clause); therefore arbitrable.	The Fulfillment Center is not a KLPI "store" and its workers are not KLPI employees, so the CBA/arbitration clause does not apply.	Held: Yes. The grievance concerns interpretation/application of the CBA and is presumptively arbitrable.
Do contract provisions ("store," "bargaining-unit work," distribution-system language) expressly or clearly exclude the grievance from arbitration?	No — those provisions raise interpretive questions for the arbitrator; no clear, unambiguous exclusion exists.	Those provisions show the CBA covers only retail stores and not supply-chain warehouses; they exclude this grievance.	Held: No express exclusion; those provisions go to the merits and do not prevent arbitration.
Was granting judgment on the pleadings premature (discovery needed to show who employs the Fulfillment Center workers)?	Motion proper; factual disputes about employment do not defeat arbitrationability of the contract question.	KLPI needed discovery to show forceful evidence that the CBA does not apply (e.g., Vitacost or Supply Chain employment).	Held: Motion was proper as the answer’s denials do not preclude finding the grievance within the arbitration clause; alleged factual disputes go to the merits for the arbitrator.
Does NLRB preemption or the "primarily representational" doctrine deprive the court/arbitrator of jurisdiction?	Claim is primarily contractual under §301 (new‑store clause); federal court may order arbitration; Board retains superior authority only on representational questions if invoked.	The grievance is primarily representational (who the union represents), so it belongs to the NLRB, not the courts/arbitrator.	Held: Court has jurisdiction; the grievance is primarily a contractual/new‑store clause issue and not preempted; the Board can be invoked later if necessary.

Key Cases Cited

AT&T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643 (1986) (establishes presumption of arbitrability and framework for deciding arbitrability vs. merits)
Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (1991) (courts must decide arbitrability, even if resolution requires interpreting the CBA)
United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564 (1960) (court’s role is confined to whether the grievance on its face is governed by the contract)
Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287 (2010) (courts decide threshold questions of agreement formation and applicability before compelling arbitration)
DiPonio Constr. Co. v. Int’l Union of Bricklayers, 687 F.3d 744 (6th Cir. 2012) (recognizes federal courts’ §301 jurisdiction over contractual disputes and concurrent jurisdiction with NLRB in some cases)
Int’l Bhd. of Elec. Workers, Loc. 71 v. Trafftech, Inc., 461 F.3d 690 (6th Cir. 2006) (distinguishes primarily representational claims that should be left to the NLRB)
United Steelworkers of Am. v. Cooper Tire & Rubber Co., 474 F.3d 271 (6th Cir. 2007) (applies presumption of arbitrability to broad arbitration clauses)
Rite Aid of Pa., Inc. v. United Food & Commercial Workers Union, Loc. 1776, 595 F.3d 128 (3d Cir. 2010) (contrast case denying arbitration for a new‑store access grievance not plausibly within the CBA)
Bakery, Confectionery, Tobacco Workers & Grain Millers Int’l Union v. Kellogg Co., 904 F.3d 435 (6th Cir. 2018) (requires clear and unambiguous exclusion to rebut presumption of arbitrability)