United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-3238
                                    ___________

United Steelworkers of America,          *
AFL-CIO-CLC,                             *
                                         *
             Appellant,                  * Appeal from the United States
                                         * District Court for the District
      v.                                 * of Minnesota.
                                         *
The Duluth Clinic, Ltd.,                 *
a Minnesota Corporation,                 *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: May 13, 2005
                                 Filed: July 7, 2005
                                  ___________

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
                        ___________

BENTON, Circuit Judge.

       The United Steelworkers of America (the "Union") seeks arbitration of a
dispute with The Duluth Clinic, Ltd., over retiree health insurance benefits. The
Union sued, alleging that a collective bargaining agreement compels arbitration. See
Labor Management Relations Act § 301(a), 29 U.S.C. § 185(a). On cross motions
for summary judgment, the district court1 ruled for the Clinic, holding that the dispute


      1
      The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
was not a "grievance" covered by the arbitration provision. Jurisdiction being proper
under 28 U.S.C. § 1291, this court affirms.

       On April 1, 2000, the parties entered into five Collective Bargaining
Agreements (collectively "CBA"), covering benefits of certain Clinic employees. The
CBA required that all unresolved grievances be submitted to arbitration, specifically
defining the term "grievance."

      On March 27, 2000 – before entering into the CBA – the parties signed a
separate letter of understanding. It requires that the Clinic provide retired union unit
employees and their spouses – covered under Medicare-Part B – with discounts on
medical services. The letter says it was the "result of recent negotiations" and
references the CBA. The letter also provides: "In the event any provision or
provisions are declared to be in conflict with a law, both parties shall meet
immediately for the purpose of renegotiating the provision so invalidated."

       On August 1, 2000, the Clinic eliminated the retiree discounts because they did
not comply with Medicare law. The parties met to discuss alternatives. On April 12,
2001, the parties agreed that affected retirees could enroll in a separate reimbursement
plan in the interim, evidenced by a memorandum from the Clinic to the Union
(referred to as the "interim coverage memo"). Despite negotiations to replace the
letter of understanding and the interim coverage memo, the Clinic eliminated the
interim reimbursement plan, and the parties failed to resolve the dispute.

       In June 2002, the Union filed an unfair labor practice charge with the National
Labor Relations Board, which was dismissed. An appeal to the General Counsel of
the NLRB was denied. The Union then filed a grievance with the Clinic under the
CBA, alleging that the Clinic violated "Article 7, Article 27, Letter of Understanding
dated March 27, 2000, and Letter of Agreement dated April 12, 2001, pertaining to
retirees insurance." When the Clinic responded that there was no "grievance" under

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the CBA, the Union filed this action. The district court granted summary judgment
to the Clinic, refusing to compel arbitration.

      This court reviews de novo the district court's grant of summary judgment.
United Steelworkers of Am., AFL-CIO-CLC, Local No. 164 v. Titan Tire Corp., 

, 860 (8th Cir. 2000). Because the material facts are undisputed, the issue
is whether summary judgment is appropriate as a matter of law. See 

whether to compel arbitration, this court applies a two-part test:
"we must first consider whether a valid agreement to arbitrate exists. If a valid
agreement exists, we then consider the scope of the agreement." 

(internal
citations omitted). According to both parties, an agreement to arbitrate exists. The
only question is whether it covers this dispute. "An 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." United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 

, 582-83 (1960).

      The Union asserts that this court should evaluate the "scope" of the arbitration
clause under the Ninth Circuit's approach in Inlandboatmens Union of the Pacific v.
Dutra Group, 

, 1079-80 (9th Cir. 2002). The Ninth Circuit holds 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. . . . [and] [t]he
clause contains no exclusion for disputes arising under side agreements."

.

      The Inlandboatmens case expressly rejects the Second Circuit's approach to
determining the arbitrability of side agreements. See 

, citing Cornell Univ. v. UAW Local 2300, 

, 140 (2nd Cir. 1991),
applying Rochdale Vill., Inc. v. Pub. Serv. Employee Union, Local No. 80, 605 F.2d

                                         -3-
1290 (2nd Cir. 1979), followed by Prudential Lines, Inc. v. Exxon Corp., 

, 63 (2nd Cir. 1983).

       This court, however, follows the Second Circuit's approach. See Fleet Tire
Serv. of N. Little Rock v. Oliver Rubber Co., 

, 621 (8th Cir. 1997),
following 

. This court first decides whether the arbitration
clause is narrow or broad. See Lebanon Chem. Corp. v. United Farmers Plant
Food, Inc., 

, 1101 (8th Cir. 1999), following Fleet, 

. See
also Louis Dreyfus Negoce S.A. v. Blystad Shipping & Trading Inc., 

,
225 (2nd Cir.) (citing Prudential and emphasizing the necessity of "making a
distinction between broad and narrow arbitration clauses . . . , 'as the scope of an
arbitration clause, like any contract provision, is a question of the intent of the
parties.'" (citation omitted)), cert. denied, 

(2001).

      If the clause is narrow, then the court determines "whether the dispute involves
an agreement collateral to the agreement containing the arbitration clause." 

. Only if the clause is broad does the court analyze whether the
dispute relates to the subject matter of the agreement. See 

case, Article 12 of the CBA – entitled "GRIEVANCE AND
ARBITRATION" – requires all unresolved "grievances" be submitted to arbitration.
Article 12 defines the term "grievance" as "any claim by the Union or the Employer,
alleging a violation of a specific contract provision or adherence to the terms and
provisions of this Agreement."

       The Union contends that this clause broadly covers all agreements between the
parties, reasoning that the phrase "alleging a violation of a specific contract
provision" refers to any agreement between them. This contention ignores the plain




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language of Article 12. For instance, Article 12.1 provides that the grievance "be
reduced to writing specifically listing the article(s) of the Agreement that were
allegedly violated . . . ." This limits the grievances that may be processed to those
that violate the CBA.

      Most importantly, Article 12.2 limits the authority of the arbitrator

      to making an award relating to the interpretation of or adherence to the
      written provisions of the Agreement and the arbitrator shall have no
      authority to add to, subtract from, or modify in any way the terms of this
      Agreement.

If the parties intended arbitration for any agreement between themselves, the
authority of the arbitrator would not have been limited to the CBA itself.

       The Union emphasizes that Article 12.2 empowers the arbitrator to interpret
"the" Agreement. The Union concludes that "the" means any agreement, whereas
"this" refers to the CBA. Such reasoning ignores that Article 12 repeatedly uses the
term "Agreement" – with a capital "A" – to refer to the CBA. True, capitalization and
"the" are used inconsistently in the rest of the CBA. However, Article 12 specifically
addresses arbitration and limits it to violations of the CBA, excluding other
agreements between the parties (unless otherwise agreed).

      Similarly, in Lebanon Chemical, this court found an arbitration clause narrow,
which required arbitration of all disputes "arising from a contract started or concluded
under these Rules." Lebanon 

(emphasis added) ("these
Rules" refers to the American Seed Trade Association Rules, governing arbitration
between members). The Second Circuit also found narrow an arbitration clause
defining an arbitrable grievance as "any matter involving the interpretation or




                                          -5-
application of this Agreement which alleges a violation of the rights of an employee
or the Union under the terms of this Agreement." Cornell 

.

       In Fleet, this court found an arbitration clause broad, which required arbitration
of "[a]ny controversy or claim arising out of or relating to this Agreement." 

. Unlike Fleet, the arbitration clause here contains no such language.
See Lebanon 

(noting that, in Fleet, the key was the phrase
"relating to"). See also Marathon Ashland v. Int'l Bhd. of Teamsters, 

,
949 (8th Cir. 2002) (treating arbitration clause as broad that included the phrase
"relating to").

      The plain language of Article 12 here limits "grievances" to violations of the
CBA itself, and lacks the additional language found in broad clauses, such as in Fleet.
Thus, the district court correctly ruled that the arbitration clause at issue is narrow.

       This court next examines "whether the dispute involves an agreement collateral
to the agreement containing the arbitration clause." 

, applying

. "A 'collateral' agreement is a separate, side agreement,
connected with the principal contract which contains the arbitration clause. The
burden is on the party resisting arbitration to demonstrate that the disputed issue is
collateral." 

. Arbitration of collateral matters may not be
"compelled merely based upon the existence of an arbitration clause in the main
agreement." 

605 F.2d at 1296-97.

       The Union alleges that the Clinic breached the agreement to provide benefits
and discounts to certain retired Clinic employees. This agreement is documented in
a letter of understanding of March 27, 2000, and the subsequent letter, the interim




                                          -6-
coverage memo of April 12, 2001.2 The letter of understanding predates but
references the CBA by making it subject to the CBA's savings clause. The interim
coverage memo does not mention the CBA, stating only that the Clinic "will continue
to honor the program that is in place at this time for those USW employees that retire
between this date and the date at which [the Clinic] and the USW mutually agree to
a program that replaces that program."

       The Second Circuit in Cornell University – after finding a similar arbitration
clause narrow – addressed whether a separate letter of understanding entered into
after the collective bargaining agreement was collateral:

      The question that must be answered is whether the letter may be read as
      part and parcel of the Collective Bargaining Agreement or whether it is
      collateral to it. If the letter is to be construed as a collateral instrument
      it may be parallel or coordinate to the Collective Bargaining Agreement,
      but it must be dissimilar and by definition be a contract set apart and
      distinct from the Agreement. See Webster's Third New International
      Dictionary (1981).

Cornell 

. The court then refused to compel arbitration, finding
that the dispute arose under a letter distinct and apart from the main agreement, and
that the parties did not intend to incorporate the letter into the main agreement. 

case, the CBA limits arbitration solely to violations of its terms. Only
the letter of understanding and the interim coverage memo address retiree insurance

      2
        When the Union originally filed its grievance with the Clinic it alleged
violations of the CBA's Articles 7 – the savings clause – and 27 – waiver of fringe
benefits inconsistent with the CBA. However, in its briefs to this court, the Union
does not claim a breach of these specific provisions. It asserts an arbitrable grievance
based only upon the letter of understanding and interim coverage memo.



                                          -7-
benefits or discounts, creating an obligation separate and distinct from the CBA. See

in the CBA, the letter of understanding, or the interim coverage
memo evidences an intent to incorporate those separate agreements into the CBA.
Therefore, the present dispute is collateral and not subject to arbitration.

      The judgment of the district court is affirmed.
                     ______________________________




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