Justice THOMAS delivered the opinion of the Court.
This case involves an employer's claims against a local union and the union's international parent for economic damages arising out of a 2004 strike. The claims turn in part on whether a collective-bargaining agreement (CBA) containing a no-strike provision was validly formed during the strike period. The employer contends that it was, while the unions contend that it was not. Because the CBA contains an arbitration clause, we first address whether the parties' dispute over the CBA's ratification date was a matter for the District Court or an arbitrator to resolve. We conclude that it was a matter for judicial resolution. Next, we address whether the Court of Appeals erred in declining the employer's request to recognize a new federal cause of action under § 301(a) of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U.S.C. § 185(a), for the international union's alleged tortious interference with the CBA. The Court of Appeals did not err in declining this request.
Petitioner Granite Rock Company is a concrete and building materials company that has operated in California since 1900. Granite Rock employs approximately 800 employees under different labor contracts with several unions, including respondent International Brotherhood of Teamsters, Local 287 (Local). Granite Rock and Local were parties to a 1999 CBA that expired in April 2004. The parties' attempt to negotiate a new CBA hit an impasse and, on June 9, 2004, Local members initiated a strike in support of their contract demands.
The strike continued until July 2, 2004, when the parties reached agreement on the terms of a new CBA. The CBA contained a no-strike clause but did not directly address union members' liability for any strike-related damages Granite Rock may have incurred before the new CBA was negotiated but after the prior CBA had expired. At the end of the negotiating session on the new CBA, Local's business representative, George Netto, approached Granite Rock about executing a separate "back-to-work" agreement that would,
Respondent International Brotherhood of Teamsters (IBT), which had advised Local throughout the CBA negotiations and whose leadership and members supported the June strike, opposed Local's decision to return to work without a back-to-work agreement shielding both Local and IBT members from liability for strike-related damages. In an effort to secure such an agreement, IBT instructed Local's members not to honor their agreement to return to work on July 5, and instructed Local's leaders to continue the work stoppage until Granite Rock agreed to hold Local and IBT members free from liability for the June strike. Netto demanded such an agreement on July 6, but Granite Rock refused the request and informed Local that the company would view any continued strike activity as a violation of the new CBA's no-strike clause. IBT and Local responded by announcing a company-wide strike that involved numerous facilities and hundreds of workers, including members of IBT locals besides Local 287.
According to Granite Rock, IBT not only instigated this strike; it supported and directed it. IBT provided pay and benefits to union members who refused to return to work, directed Local's negotiations with Granite Rock, supported Local financially during the strike period with a $1.2 million loan, and represented to Granite Rock that IBT had unilateral authority to end the work stoppage in exchange for a hold-harmless agreement covering IBT members within and outside Local's bargaining unit.
On July 9, 2004, Granite Rock sued IBT and Local in the District Court, seeking an injunction against the ongoing strike and strike-related damages. Granite Rock's complaint, originally and as amended, invoked federal jurisdiction under LMRA § 301(a), alleged that the July 6 strike violated Local's obligations under the CBA's no-strike provision, and asked the District Court to enjoin the strike because the hold-harmless dispute giving rise to the strike was an arbitrable grievance. See Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235, 237-238, 253-254, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970) (holding that federal courts may enjoin a strike where a CBA contemplates arbitration of the dispute that occasions the strike). The unions conceded that LMRA § 301(a) gave the District Court jurisdiction over the suit but opposed Granite Rock's complaint, asserting that the CBA was not validly ratified on July 2 (or at any other time relevant to the July 2004 strike) and, thus, its no-strike clause did not provide a basis for Granite Rock's claims challenging the strike.
The District Court initially denied Granite Rock's request to enforce the CBA's no-strike provision because Granite Rock was unable to produce evidence that the CBA was ratified on July 2.App. 203-213. Shortly after the District Court ruled, however, a Local member testified that Netto had put the new CBA to a ratification vote on July 2, and that the voting Local members unanimously approved the agreement. Based on this statement and supporting testimony from 12 other employees, Granite Rock moved for a new trial on its injunction and damages claims.
On August 22, while that motion was pending, Local conducted a second successful "ratification" vote on the CBA, and
IBT and Local both moved to dismiss. Among other things, IBT argued that Granite Rock could not plead a federal tort claim under § 301(a) because that provision supports a federal cause of action only for breach of contract. The District Court agreed and dismissed Granite Rock's tortious interference claims. The District Court did not, however, grant Local's separate motion to send the parties' dispute over the CBA's ratification date to arbitration.
The Court of Appeals for the Ninth Circuit affirmed in part and reversed in part. See 546 F.3d 1169 (2008). The Court of Appeals affirmed the District Court's dismissal of Granite Rock's tortious interference claims against IBT. See id., at 1170-1175. But it disagreed with the District Court's determination that the date of the CBA's ratification was a matter for judicial resolution. See id., at 1176-1178. The Court of Appeals reasoned that the parties' dispute over this issue was governed by the CBA's arbitration clause because the clause clearly covered the related strike claims, the "national policy favoring arbitration" required that any ambiguity about the scope of the parties' arbitration clause be resolved in favor of arbitrability, and, in any event, Granite Rock had "implicitly" consented to arbitrate the ratification-date dispute "by suing under the contract." Id., at 1178 (internal quotation marks omitted). We granted certiorari. See 557 U.S. ___, 129 S.Ct. 2865, 174 L.Ed.2d 575 (2009).
It is well settled in both commercial and labor cases that whether parties have agreed to "submi[t] a particular dispute to arbitration" is typically an "`issue for judicial determination.'" Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (quoting AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)); see John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-547, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). It is similarly well settled that where the dispute at issue concerns contract formation, the dispute is
These principles would neatly dispose of this case if the formation dispute here were typical. But it is not. It is based on when (not whether) the CBA that contains the parties' arbitration clause was ratified and thereby formed.
These unusual facts require us to reemphasize the proper framework for deciding when disputes are arbitrable under our precedents. Under that framework, a court may order arbitration of a particular dispute only where the court is satisfied that the parties agreed to arbitrate that dispute. See First Options, supra, at 943, 115 S.Ct. 1920; AT & T Technologies, supra, at 648-649, 106 S.Ct. 1415. To satisfy itself that such agreement exists, the court must resolve any issue that calls into question the formation or applicability of the specific arbitration clause that a party seeks to have the court enforce. See, e.g., Rent-A-Center, West, Inc. v. Jackson, ___ U.S. ___, ___ _ ___, 130 S.Ct. 2772, ___ L.Ed.2d ___ (2010) (opinion of SCALIA, J.). Where there is no provision validly committing them to an arbitrator, see ante, at 2776-2778, these issues typically concern the scope of the arbitration clause and its enforceability. In addition, these issues always include whether the clause was agreed to, and may include when that agreement was formed.
The parties agree that it was proper for the District Court to decide whether their ratification dispute was arbitrable.
Local contends that our precedents, particularly those applying the "`federal policy favoring arbitration of labor disputes,'" permit no other result. Brief for Respondent Local, p. 15 (quoting Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 377, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974)); see Brief for Respondent Local, pp. 10-13; 16-25. Local, like the Court of Appeals, overreads our precedents. The language and holdings on which Local and the Court of Appeals rely cannot be divorced from the first principle that underscores all of our arbitration decisions: Arbitration is strictly "a matter of consent," Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989), and thus "is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration," First Options, 514 U.S., at 943, 115 S.Ct. 1920 (emphasis added).
Local nonetheless interprets some of our opinions to depart from this framework and to require arbitration of certain disputes, particularly labor disputes, based on policy grounds even where evidence of the parties' agreement to arbitrate the dispute in question is lacking. See Brief for Respondent Local, p. 16 (citing cases emphasizing the policy favoring arbitration generally and the "impressive policy considerations favoring arbitration" in LMRA cases (internal quotation marks omitted)). That is not a fair reading of the opinions, all of which compelled arbitration of a dispute only after the Court was persuaded that the parties' arbitration agreement was validly formed and that it covered the dispute in question and was legally enforceable. See, e.g., First Options, supra, at 944-945, 115 S.Ct. 1920. That Buckeye and some of our cases applying a presumption of arbitrability to certain disputes do not discuss each of these requirements merely reflects the fact that in those cases some of the requirements were so obviously satisfied that no discussion was needed.
In Buckeye, the formation of the parties' arbitration agreement was not at issue because the parties agreed that they had "concluded" an agreement to arbitrate and memorialized it as an arbitration clause in their loan contract. 546 U.S., at 444, n. 1, 126 S.Ct. 1204. The arbitration clause's scope was also not at issue, because the provision expressly applied to "`[a]ny claim, dispute, or controversy ... arising from or relating to ... the validity, enforceability, or scope of this Arbitration Provision or the entire Agreement.'" Id., at 442, 126 S.Ct. 1204. The parties resisting arbitration (customers who agreed to the broad arbitration clause as a condition of using Buckeye's loan service) claimed only that a usurious interest provision in the loan agreement invalidated the entire contract, including the arbitration clause, and thus precluded the Court from relying on the clause as evidence of the parties' consent to arbitrate matters within its scope. See id., at 443, 126 S.Ct. 1204. In rejecting this argument, we simply applied the requirement in § 2 of the FAA that courts treat an arbitration clause as severable from the contract in which it appears and enforce it according to its terms unless the party resisting arbitration specifically challenges the enforceability of the arbitration clause itself, see id., at 443-445, 126 S.Ct. 1204 (citing 9 U.S.C. § 2; Southland Corp. v. Keating, 465 U.S. 1, 4-5, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 402-404, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967)), or claims that the agreement to arbitrate was "[n]ever concluded," 546 U.S., at 444, n. 1, 126 S.Ct. 1204; see also Rent-A-Center, ___ U.S., at ___ _ ___, and n. 2, 130 S.Ct. 2772.
Our cases invoking the federal "policy favoring arbitration" of commercial and labor disputes apply the same framework. They recognize that, except where "the parties clearly and unmistakably provide otherwise," AT & T Technologies, 475 U.S., at 649, 106 S.Ct. 1415, it is "the court's duty to interpret the agreement and to determine whether the parties intended to arbitrate grievances concerning" a particular matter, id., at 651, 106 S.Ct. 1415. They then discharge this duty by: (1) applying the presumption of arbitrability only where a validly formed and enforceable arbitration agreement is ambiguous about whether it covers the dispute at hand; and (2) adhering to the presumption
Local is thus wrong to suggest that the presumption of arbitrability we sometimes apply takes courts outside our settled framework for deciding arbitrability. The presumption simply assists in resolving arbitrability disputes within that framework. Confining the presumption to this role reflects its foundation in "the federal policy favoring arbitration." As we have explained, this "policy" is merely an acknowledgment of the FAA's commitment to "overrule the judiciary's longstanding refusal to enforce agreements to arbitrate and to place such agreements upon the same footing as other contracts." Volt, 489 U.S., at 478, 109 S.Ct. 1248 (internal quotation marks and citations omitted). Accordingly, we have never held that this policy overrides the principle that a court may submit to arbitration "only those disputes... that the parties have agreed to submit." First Options, 514 U.S., at 943, 115 S.Ct. 1920; see also Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995) ("[T]he FAA's proarbitration policy does not operate without regard to the wishes of the contract parties"); AT & T Technologies, 475 U.S., at 650-651, 106 S.Ct. 1415 (applying the same rule to the "presumption of arbitrability for labor disputes"). Nor have we held that courts may use policy considerations as a substitute for party agreement. See, e.g., id., at 648-651, 106 S.Ct. 1415; Volt, supra, at 478, 109 S.Ct. 1248. We have applied the presumption favoring arbitration, in FAA and in labor cases, only where it reflects, and derives its legitimacy from, a judicial conclusion that arbitration of a particular dispute is what the parties intended because their express agreement to arbitrate was validly formed and (absent a provision clearly and validly committing such issues to an arbitrator) is legally enforceable and
We begin by addressing the grounds on which the Court of Appeals reversed the District Court's decision to decide the parties' ratification-date dispute, which the parties characterize as a formation dispute because a union vote ratifying the CBA's terms was necessary to form the contract. See App. 351.
This formation date question requires judicial resolution here because it relates to Local's arbitration demand in such a way that the District Court was required to decide the CBA's ratification date in order to determine whether the parties consented to arbitrate the matters covered by the demand.
The Court of Appeals overlooked the fact that this theory of the ratification dispute's arbitrability fails if the CBA was not formed at the time the unions engaged in the acts that gave rise to Granite Rock's strike claims. The unions began their strike on July 6, 2004, and Granite Rock filed its suit on July 9. If, as Local asserts, the CBA containing the parties' arbitration clause was not ratified, and thus not formed, until August 22, there was no CBA for the July no-strike dispute to "arise under," and thus no valid basis for the Court of Appeals' conclusion that Granite Rock's July 9 claims arose under the CBA and were thus arbitrable along with, by extension, Local's formation date defense to those claims.
Local seeks to address this flaw in the Court of Appeals' decision by arguing that in December 2004 the parties executed a document that rendered the CBA effective as of May 1, 2004 (the date the prior CBA expired), and that this effective-date language rendered the CBA's arbitration clause (but not its no-strike clause) applicable to the July strike period notwithstanding Local's view that the agreement was ratified in August (which ratification date Local continues to argue controls the period during which the no-strike clause applies). See Brief for Respondent Local, pp. 26-27; Tr. of Oral Arg. 32, 37-39. The Court of Appeals did not rule on the merits of this claim (i.e., it did not decide whether the CBA's effective date language indeed renders some or all of the agreement's provisions retroactively applicable to May 2004), and we need not do so either. Even accepting Local's assertion that it raised this retroactivity argument in the District Court, see Brief for Respondent Local, p. 26,
Although the foregoing is sufficient to reverse the Court of Appeals' judgment, there is an additional reason to do so: The dispute here, whether labeled a formation dispute or not, falls outside the scope of the parties' arbitration clause on grounds the presumption favoring arbitration cannot cure. Section 20 of the CBA provides in relevant part that "[a]ll disputes arising under this agreement shall be resolved in accordance with the [Grievance] procedure," which includes arbitration. App. 434 (emphasis added); see also id., at 434-437. The parties' ratification-date dispute cannot properly be characterized as falling within the (relatively narrow, cf., e.g., Drake Bakeries Inc., 370 U.S., at 256-257, 82 S.Ct. 1346) scope of this provision for at least two reasons. First, we do not think the question whether the CBA was validly ratified on July 2, 2004—a question that concerns the CBA's very existence—can fairly be said to "arise under" the CBA. Second, even if the "arising under" language could in isolation be construed to cover this dispute, Section 20's remaining provisions all but foreclose such a reading by describing that section's arbitration requirement as applicable to labor disagreements that are addressed in the CBA and are subject to its requirement of mandatory mediation. See App. 434-437 (requiring arbitration of disputes "arising under" the CBA, but only after the Union and Employer have exhausted mandatory mediation, and limiting any arbitration decision under this provision to those "within the scope and terms of this agreement and... specifically limited to the matter submitted").
The Court of Appeals' contrary conclusion does not find support in the text of § 20. The Court of Appeals' only effort to grapple with that text misses the point because it focuses on whether Granite Rock's claim to enforce the CBA's no-strike provisions could be characterized as "arising under" the agreement. See 546 F.3d, at 1177, n. 4. Even assuming that claim can be characterized as "arising under" the CBA, it is not the issue here. The issue is whether the formation-date defense that Local raised in response to Granite Rock's no-strike suit can be characterized as "arising under" the CBA. It cannot for the reasons we have explained, namely, the CBA provision requiring arbitration of disputes "arising under" the CBA is not fairly read to include a dispute about when the CBA came into existence. The Court of Appeals erred in failing to address this question and holding instead that the arbitration clause is "susceptible of an interpretation" that covers Local's formation-date defense to Granite Rock's suit "[b]ecause Granite Rock is suing `under' the alleged new CBA" and "[a]rbitration clauses are to be construed very broadly." Ibid.; see also id., at 1178.
Local's remaining argument in support of the Court of Appeals' judgment
We turn now to the claims available on remand. The parties agree that Granite Rock can bring a breach-of-contract claim under LMRA § 301(a) against Local as a CBA signatory, and against IBT as Local's agent or alter ego. See Brief for Respondent IBT 10-13; Reply Brief for Petitioner 12-13 and n. 11.
Granite Rock asks us to reject this position as inconsistent with federal labor law's
We do not believe the choice is as stark as Granite Rock implies. It is of course true that we have construed "Section 301[to] authoriz[e] federal courts to fashion a body of federal law for the enforcement of collective bargaining agreements." Lewis v. Benedict Coal Corp., 361 U.S. 459, 470, 80 S.Ct. 489, 4 L.Ed.2d 442 (1960) (citing Lincoln Mills, supra). But we have also emphasized that in developing this common law we "did not envision any freewheeling inquiry into what the federal courts might find to be the most desirable rule." Howard Johnson Co. v. Hotel Employees, 417 U.S. 249, 255, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974). The balance federal statutes strike between employer and union relations in the collective-bargaining arena is carefully calibrated, see, e.g., NLRB v. Drivers, 362 U.S. 274, 289-290, 80 S.Ct. 706, 4 L.Ed.2d 710 (1960), and as the parties' briefs illustrate, creating a federal common-law tort cause of action would require a host of policy choices that could easily upset this balance, see Brief for Respondent IBT 42-44; Reply Brief for Petitioner 22-25. It is thus no surprise that virtually all Courts of Appeals have held that federal courts' authority to "create a federal common law of collective bargaining agreements under section 301" should be confined to "a common law of contracts, not a source of independent rights, let alone tort rights; for section 301 is ... a grant of jurisdiction only to enforce contracts." Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1180 (C.A.7 1993). We see no reason for a different result here because it would be premature to recognize the federal common law tort Granite Rock requests in this case even assuming that § 301(a) authorizes us to do so.
In reaching this conclusion, we emphasize that the question before us is a narrow one. It is not whether the conduct Granite Rock challenges is remediable, but whether we should augment the claims already available to Granite Rock by creating a new federal common-law cause of action
These proceedings, and the proceedings that remain to be conducted on remand, buttress our conclusion that Granite Rock's case for a new federal common-law cause of action is based on assumptions about the adequacy of other avenues of relief that are at least questionable because they have not been fully tested in this case and thus their efficacy is simply not before us to evaluate. Notably, Granite Rock (like IBT and the Court of Appeals) assumes that federal common law provides the only possible basis for the type of tort claim it wishes to pursue. See Brief for Respondent IBT 33-34; Reply Brief for Petitioner 16. But Granite Rock did not litigate below, and thus does not present us with occasion to address, whether state law might provide a remedy. See, e.g., Steelworkers v. Rawson, 495 U.S. 362, 369-371, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990); Textron Lycoming Reciprocating Engine Div., AVCO Corp. v. Automobile Workers, 523 U.S. 653, 656, 658, 118 S.Ct. 1626, 140 L.Ed.2d 863 (1998). Nor did Granite Rock fully explore the breach-of-contract and administrative causes of action it suggests are insufficient to remedy IBT's conduct. For example, far from establishing that an agency or alter ego claim against IBT would be unsuccessful, the record in this case suggests it might be easier to prove than usual if, as the NLRB's decision observes, IBT and Local were affiliated in 2004 in a way relevant to Granite Rock's claims. See In re Teamsters Local 287, supra, at 340, n. 6. Similarly, neither party has established that the Board itself could not issue additional relief against IBT. IBT's amici argue that the "overlap between Granite Rock's § 301 claim against the IBT and the NLRB General Counsel's unfair labor practice complaint against Local 287 brings into play the National Labor Relations Act rule that an international union commits an unfair labor practice by causing its affiliated local unions to `impose extraneous non-bargaining unit considerations into the collective bargaining process.'" Brief for American Federation of Labor et al. 30-31 (quoting Paperworkers Local 620, 309 N.L.R.B. 44, 44 (1992)). The fact that at least one Court of Appeals has recognized the viability of such a claim, see Kobell v. United Paperworkers Int'l Union, 965 F.2d 1401,
* * *
We reverse the Court of Appeals' judgment on the arbitrability of the parties' formation-date dispute, affirm its judgment dismissing Granite Rock's claims against IBT to the extent those claims depend on the creation of a new federal common-law tort cause of action under § 301(a), and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Justice SOTOMAYOR, with whom Justice STEVENS joins, concurring in part and dissenting in part.
I join Part III of the Court's opinion, which holds that petitioner Granite Rock's tortious interference claim against respondent International Brotherhood of Teamsters (IBT) is not cognizable under § 301(a) of the Labor Management Relations Act, 1947 (LMRA), 29 U.S.C. § 185(a). I respectfully dissent, however, from the Court's conclusion that the arbitration provision in the collective-bargaining agreement (CBA) between Granite Rock and IBT Local 287 does not cover the parties' dispute over whether Local 287 breached the CBA's no-strike clause. In my judgment, the parties clearly agreed in the CBA to have this dispute resolved by an arbitrator, not a court.
The legal principles that govern this case are simpler than the Court's exposition suggests. Arbitration, all agree, "is a matter of contract and a party cannot be required to submit to arbitration any dispute which [it] has not agreed so to submit." Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). Before ordering parties to arbitrate, a court must therefore confirm (1) that the parties have an agreement to arbitrate and (2) that the agreement covers their dispute. See ante, at 2857-2858. In determining the scope of an arbitration agreement, "there is a presumption of arbitrability in the sense that `[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. Doubts should be resolved in favor of coverage.'" AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting Warrior, 363 U.S., at 582-583, 80 S.Ct. 1347); see also John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 550, n. 4, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964) ("[W]hen a contract is scrutinized for evidence of an intention to arbitrate a particular kind of dispute, national labor policy requires, within reason, that an interpretation that covers the asserted dispute ... be favored" (emphasis deleted; internal quotation marks omitted)).
Granite Rock claims that Local 287 breached the CBA's no-strike clause by engaging in a work stoppage in July 2004. Local 287 contests this claim. Specifically, it contends that it had no duty to abide by the no-strike clause in July because it did not vote to ratify the CBA until August. As I see it, the parties' disagreement as to whether the no-strike clause proscribed the July work stoppage is plainly a "disput[e] arising under" the CBA and is therefore subject to arbitration as Local 287 demands. Indeed, the parties' no-strike dispute is indistinguishable from myriad other disputes that an employer and union might have concerning the interpretation and application of the substantive provisions of a collective-bargaining agreement. These are precisely the sorts of controversies that labor arbitrators are called upon to resolve every day.
The majority seems to agree that the CBA's arbitration provision generally encompasses disputes between Granite Rock and Local 287 regarding the parties' compliance with the terms of the CBA, including the no-strike clause. The majority contends, however, that Local 287's "formation-date defense" raises a preliminary question of contract formation that must be resolved by a court rather than an arbitrator. Ante, at 2860-2861. The majority's reasoning appears to be the following: If Local 287 did not ratify the CBA until August, then there is "no valid basis" for applying the CBA's arbitration provision to events that occurred in July. Ibid.
The majority's position is flatly inconsistent with the language of the CBA. The parties expressly chose to make the agreement effective from May 1, 2004. As a result, "the date on which [the] agreement was ratified" does not, as the majority contends, determine whether the parties' dispute about the permissibility of the July work stoppage falls within the scope of the CBA's arbitration provision. Ante, at 2860. When it comes to answering the arbitrability question, it is entirely irrelevant whether Local 287 ratified the CBA in August (as it contends) or in July (as Granite Rock contends). In either case, the parties' dispute—which postdates May 1—clearly "aris[es] under" the CBA, which is all the arbitration provision requires to make a dispute referable to an arbitrator. Cf. Litton Financial Printing Div., Litton Business Systems, Inc. v. NLRB, 501 U.S. 190, 201, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991) (recognizing that "a collective-bargaining agreement might be drafted so as to eliminate any hiatus between expiration of the old and execution of the new agreement").
Attempting to sidestep this analysis, the majority declares that Local 287 waived its retroactivity argument by failing in the courts below to challenge Granite Rock's consistent characterization of the parties' dispute as one of contract formation. See ante, at 2861-2862. As a result of Local 287's omission, the District Court and Court of Appeals proceeded under the understanding that this case presented a formation question. It was not until its merits brief in this Court that Local 287 attempted to correct this mistaken premise by pointing to the parties' execution of the December 2004 CBA with its May 2004 effective date. This Court's rules "admonis[h] [counsel] that they have an obligation to the Court to point out in the brief in opposition [to certiorari], and not later, any perceived misstatement made in the petition [for certiorari]"; nonjurisdictional arguments not raised at that time "may be deemed waived." This Court's Rule 15.2. Although it is regrettable and inexcusable that Local 287 did not present its argument earlier, I do not see it as one we can ignore. The question presented in this case presupposes that "it is disputed whether any binding contract exists." Brief for Petitioner i. Because it is instead undisputed that the parties executed a binding contract in December 2004 that was effective as of May 2004, we can scarcely pretend that the parties have a formation dispute. Consideration of this fact is "a `predicate to an intelligent resolution' of the question presented, and therefore `fairly included therein.'" Ohio v. Robinette, 519 U.S. 33, 38, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (quoting Vance v. Terrazas, 444 U.S. 252, 258, n. 5,
Our use of the same rules in FAA cases is also unsurprising. The rules are suggested by the statute itself. Section 2 of the FAA requires courts to enforce valid and enforceable arbitration agreements according to their terms. And § 4 provides in pertinent part that where a party invokes the jurisdiction of a federal court over a matter that the court could adjudicate but for the presence of an arbitration clause, "[t]he court shall hear the parties" and "direc[t] the parties to proceed to arbitration in accordance with the terms of the agreement" except "[i]f the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue," in which case "the court shall proceed summarily to the trial thereof." 9 U.S.C. § 4.