Sixth Circuit Weighs in on Split Re Whether a Dispute over a Side Agreement Falls Within a Collective Baraining Agreement's Arbitration Clause
Per United Steelworkers of America v. Cooper Tire & Rubber Co., --- F.3d ----, 2007 WL 101990 (6th Cir. Jan. 17, 2007):
The question presented here, whether a dispute over a side agreement that does not provide for arbitration falls within the CBA's [collective bargaining agreement] arbitration clause, is one that this court has not previously addressed. There is a split among the circuits that have spoken on this issue. The Second, Fourth, and Eighth Circuits apply the "collateral" test in determining whether a dispute over a side agreement is arbitrable. Under the collateral test, courts consider the similarity of the side agreement's subject matter to the subject matter of the CBA. If the subject matter is dissimilar, the side agreement is deemed collateral to the CBA. However, where the side agreement is "integral" to the CBA, courts permit arbitration of disputes over its provisions. See, e.g., Cornell Univ. v. UAW Local 2300, 942 F.2d 138, 140 (2d Cir.1991) (holding that a "letter of understanding" was "collateral" to the CBA and therefore not governed by the CBA's arbitration clause); Adkins v. Times-World Corp., 771 F.2d 829, 830-31 (4th Cir.1985) (holding that an "addendum" to the CBA was integral to it and therefore subject to the arbitration clause); United Steelworkers v. The Duluth Clinic, Ltd., 413 F.3d 786, 788 (8th Cir.2005) ( "This court ... follows the Second Circuit's approach."). Three other circuits, the Third, Seventh, and Ninth, have adopted the "scope" test. They hold that unless the parties indicate otherwise, disputes over a side agreement are arbitrable if the subject matter of the side agreement is within the scope of the CBA's arbitration clause. See, e.g., L.O. Koven & Bro., Inc. v. Local Union No. 5767, United Steelworkers, 381 F.2d 196, 204-05 (3d Cir.1967) (concluding that a dispute over a side agreement that was silent as to arbitrability was governed by the CBA's arbitration clause because the underlying subject was one "ordinarily a matter for consideration by an arbitrator" under the CBA); Niro v. Fearn Int'l, Inc., 827 F.2d 173, 175 (7th Cir.1987) (holding that a "settlement agreement is an arbitrable subject when the underlying dispute is arbitrable"); Dutra Group, 279 F.3d at 1080 (holding that "disputes arising under a side agreement must be arbitrated if the dispute relates to a subject that is within the scope of the CBA's arbitration clause").We agree with the scope test as applied by the Ninth Circuit.