NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 19-3420 ________________

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION 95-95A,

Appellant v.

FARMLAND FOODS, INC.; SMITHFIELD PACKAGED MEATS CORP.; SMITHFIELD PACKAGED MEATS CORP., trading and doing business as FARMLAND FOODS, INC. ______________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civ. No. 2-19-cv-00785) District Judge: Honorable Arthur J. Schwab ________________

Submitted Under Third Circuit L.A.R. 34.1(a) on July 1, 2020

Before: KRAUSE and PHIPPS, Circuit Judges, and BEETLESTONE, * District Judge.

(Opinion Filed: July 10, 2020) ________________

OPINION † ________________

* Honorable Wendy Beetlestone, United States District Court for the Eastern District of Pennsylvania, sitting by designation. † This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.

Having challenged Smithfield Packaged Meats Corp.’s practice of “withholding

deferred wage pension contribution[s]” from its employees as a violation of its collective

bargaining agreement and having sought unsuccessfully to compel arbitration under that

agreement, the International Union of Operating Engineers, Local Union 95-95A now

appeals the District Court’s order dismissing its action to compel arbitration. Because we

agree with the District Court that the Union’s grievance does not implicate any provision

of the CBA and therefore is not arbitrable, we will affirm.

DISCUSSION 1

The Union argues that the District Court erred in dismissing its suit for two reasons:

(1) the withholding of deferred wage pension contributions does implicate the wage and

pension provisions of the CBA; and (2) dismissal was premature because discovery may

unearth evidence of improperly withheld employee pension contributions. Neither

argument is persuasive.

First, “arbitration is a matter of contract,” and “a party cannot be required to submit

to arbitration any dispute which he has not agreed so to submit.” United Steelworkers of

Am. v. Rohm & Haas Co.,

(3d Cir. 2008) (citation omitted). Here, the

CBA specifies that the arbitrator “shall only have jurisdiction and authority to interpret,

1 The District Court had jurisdiction over this National Labor Relations Act suit pursuant to

and

(a). We have jurisdiction under

. We review a motion to dismiss on Rule 12(b)(6) grounds and the District Court’s legal determinations regarding arbitrability de novo. See Griswold v. Coventry First LLC,

(3d Cir. 2014); Phillips v. County of Allegheny,

(3d Cir. 2008).

2 apply or determine compliance with” the CBA and “shall not have jurisdiction to add to,

detract from or alter in any way the provisions of th[e] [CBA].” App. 34. Because we

apply “ordinary principles of contract law” to interpret this provision, Cup v. Ampco

Pittsburgh Corp.,

(3d Cir. 2018) (citation omitted), we may compel

arbitration only if, after “critical examination,” it is clear that the dispute “genuinely

implicate[s]” a provision of the CBA, Rite Aid of Pa., Inc. v. United Food & Commercial

Workers Union,

(3d Cir. 2010). The Union’s grievance does not.

As the District Court observed, Smithfield’s alleged withholding of deferred wage

pension contributions does not implicate the pension or wage provisions, or any other

provision of the CBA. The pension provision obligates Smithfield to contribute to the

Union’s pension fund only at set hourly rates up to a monthly cap per employee, which it

has done; nothing in that provision suggests any additional “deferred” amount that

Smithfield must either pay its workers or otherwise funnel into their pension plans beyond

the monthly cap. The wage provision, too, is highly specific and makes no mention of

“deferred wages.” And the Union has not directed us to any other language in the CBA

that suggests Smithfield owes its employees additional payments in the form of “deferred

wage pension contribution[s],” App. 44, under the terms of that agreement.

Second, the Union urges us to compel arbitration in the hope that discovery will

produce evidence of improperly withheld employee pension contributions. But extrinsic

evidence “[may] be admitted, if at all, only to resolve an ambiguity in the CBA and should

not be used to add terms to a contract that is plausibly complete without them.” Cup,

(alteration in original) (internal quotation marks and citations omitted). Here,

3 there is no ambiguous language or “yawning void . . . that cries out for an implied term.”

(alteration in original) (citation omitted). To the contrary, the CBA makes clear that

arbitrators lack the power to “add to . . . or alter in any way the provisions of th[e]

[a]greement,” App.34, and as the Union admits, the benefit it seeks to enforce is neither

“itemize[d]” nor “even reference[d]” in the CBA, Appellant’s Br. 6. Under these

circumstances, the District Court did not err in declining to compel arbitration and

dismissing the Union’s action.

CONCLUSION

For the foregoing reasons, we will affirm the District Court’s judgment.

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