Full opinion text
MEMORANDUM — DECISION AND ORDER McCURN, Senior District Judge. BACKGROUND Given the at times complex legal issues raised by these motions, it is easy to forget exactly what is at stake in this litigation, and that is whether defendant Melvin Smith is eligible for a pension; and if so, is he entitled to continue receiving monthly pension benefits in the amount of approximately $188.03 or, as Smith maintains, is he entitled to receive pension benefits in an amount greater than that? At fifty-two years of age and after having been employed by the plaintiff Company, Chicago Pneumatic Tool Company (“Company”), for twenty-three years, defendant Smith, along with others, was terminated as part of a partial shut-down of the Company’s operations. During his employment with the Company, Mr. Smith was subject to a collective bargaining agreement (“CBA”) between International Association of Machinists and Aerospace Workers Local Lodge No. 335 (“Local 335”) and the Company. The CBA provided that bargaining unit employees, such as Smith, were entitled to receive pension benefits pursuant to the terms of a pension agreement between the Company and Local 335, which was attached to the CBA. Both the CBA and the Pension Plan were to remain in effect until August 31, 1984. Affidavit of John E. Roberts (June 29, 1992), exh. A thereto at 35. The CBA contained a four step grievance and arbitration procedure, which was incorporated by reference into the Pension Plan. Id., exh. A thereto at 27-30. Under the terms of the CBA, that procedure was available to resolve “differences” between the Company and the Union “as to the meaning and application” of the CBA provisions. Id., exh. A thereto at 28. The Pension Plan in turn sets forth an “appeals procedure,” which provides in salient part: a. If any difference shall arise between the Company or the Board and any person who shall be an applicant for a pension as to: 1. the number of years of Service and of Credited service of such applicant in the employ of the Company; or 2. an applicant’s right to a pension; or 3. the age of the applicant; or 4. whether an applicant, who shall have been determined to be permanently incapacitated and who shall have at least ten years of such Credited Service but shall not have obtained the age of 65 years, shall have become so permanently incapacitated through some unavoidable cause; such difference may be taken up as a grievance in accordance with the provision of Article XXIII of the [CBA], beginning at Step 4 thereof. Id., exh. B thereto at 31 (emphasis and footnote added). According to the Company, approximately one year after the partial shutdown, effective December 31, 1984, inactive participants in the Pension Plan, as well as other Company pension plans were “ ‘spun off or transferred into The Terminated Operations Plan for Certain Employees of Chicago Pneumatic Tool Company (“Terminated Operations Plan”).” Affidavit of Doris J. Moore (Aug. 13, 1992) at ¶2, and exh. A thereto. On August 16, 1990, the Terminated Operations Plan was amended and reinstated, retroactive to January 1, 1989. Id. at ¶ 9. This amendment and reinstatement “reflect[ed] the addition of active employees at the Company’s Franklin, Pennsylvania operation to The Terminated Operations Plan.” Id. Importantly, in contrast to the CBA and the Pension Plan, the Company deliberately chose not to include a grievance and arbitration procedure in the Terminated Operations Plan. See Plaintiffs’ Memorandum in Support of Their Motion for Summary Judgment and in Opposition to Defendants’ Motion for Summary Judgment (“Plaintiffs’ Memorandum”) at 22-25. Slightly more than six years after Smith was terminated from the Company, in January, 1990, he applied for a pension under the Pension Plan. Roberts Aff. at ¶ 10. Before applying for that pension, Mr. Smith had been diagnosed as having several medical conditions, including Parkinson’s disease, Bell’s Palsy, and degenerative arthritis. Id. Those conditions and ailments rendered him permanently disabled and unable to work, and no one disputes that. Id., exh. J thereto at 8. By letter dated March 21, 1990, the Company denied Mr. Smith’s request for a disability pension, explaining that he was not so entitled because he had become disabled after his termination from the Company. Id., exh. C thereto. That letter closed by advising Smith that he would “[b]e entitled to a reduced pension benefit when [he] reach[es] age 60 if you so elect.” Id. Another one of the defendants, International Association of Machinists and Aerospace Workers, Local Lodge No. 2275 (“Local 2275”), filed a grievance, on behalf of Mr. Smith, challenging the denial of his disability pension. Id., exh. D thereto. Consistent with its initial determination that Mr. Smith was not eligible for a disability pension because he did not become disabled while actively employed with the Company, that grievance was denied. Id., exh. E thereto. Local 2275 immediately appealed indicating its desire “to proceed to the next step of the grievance procedure as soon as possible.” Id., exh. F thereto. Following a meeting between the Company and Local 2275, pursuant to step three of the grievance process, the Company reaffirmed its position that Smith was not eligible for a disability pension because he did not become disabled while actively employed with the Company, and again denied Smith’s grievance. Id., exh. G thereto. On May 25, 1990, Local 2275 and the Company then agreed to submit the issue of Mr. Smith’s eligibility for a disability pension to an arbitrator. Id., exh. I thereto. On December 13, 1990, a hearing was held before the arbitrator. At the hearing, the Company maintained, as it continues to on these motions, that Mr. Smith was covered by the Terminated Operations Plan, which, unlike the CBA and Pension Plan, did not contain a grievance and arbitration procedure. The Company therefore took the position that Smith’s grievance was not arbitrable. The Company took that position despite the fact that it had not raised that issue during the entire course of the pre-arbitration grievance process. Roberts Aff., exh. J thereto at 13. A full hearing was conducted before the arbitrator in which the parties were given the opportunity to introduce evidence, call witnesses in support of their respective positions, cross-examine the adversary’s witnesses, and file post-hearing briefs. On April 23, 1992, the arbitrator issued his opinion and award. After determining that the issue of arbitrability was properly before him, the arbitrator expressly found Smith’s pension grievance to be arbitrable. Roberts Aff., exh. J thereto at 13. In reaching that conclusion, the arbitrator disagreed with the Company’s assertion that Smith’s grievance was not arbitrable because it was governed by the Terminated Operations Plan, which does not provide for arbitration. Instead, the arbitrator found that Smith’s grievance had “nothing whatsoever” to do with the Terminated Operations Plan, but rather he was seeking enforcement of a pension benefit under the original Pension Plan, which did allow for arbitration of certain disputes arising thereunder. Id., exh. J thereto at 14-15. Insofar as the merits of Smith’s grievance were concerned, the arbitrator found that he was “entitled to commence his deferred pension benefits at an earlier age than 65 or 60 in accordance with the provisions of Section II 4(c) [of the Pension Plan].” Id. at 19. In closing, the arbitrator retained jurisdiction “for the purpose of insuring compliance with this Award.” Id. at 21. According to defendant Smith, the Company has disregarded the arbitrator’s award by giving him a reduced rather than an unreduced pension. Because the Company believed that Smith was only entitled to an actuarily reduced pension if he elected to commence his pension immediately in accordance with the arbitration award, in July, 1991 it agreed to allow Mr. Smith “to apply for and receive an immediate pension reduced in accordance with the attached Table 1 which is the table of actuarial equivalents attached to The Terminated Operations Plan-” Id., exh. K thereto. Thus, in the intervening years Mr. Smith has been receiving a reduced deferred pension, which the Company agrees it will not upset even if it ultimately prevails in this litigation. Id. Conversely, the Company allows that if it is not successful in this action, “Mr. Smith will be reimbursed for the difference of the benefit paid and any higher pension amount.” Id. Despite this temporary conciliation, because it disagreed with the arbitrator’s award, the Company commenced this action. In addition to the Company, there are five individual plaintiffs: Edwin Harcourt and Bruce Daniels, members of the Company’s Retirement Plan Committee, as well as James E. Hoover and Carolyn A. Graham, members of the Company’s Board of the Funded I.A.M. Pension Plan (the Local 335 Pension Plan), and Doris Moore in her capacity as a member of both of those entities. In addition to Mr. Smith and Local 2275, also named as a defendant in this action is the International Association of Machinists and Aerospace Workers (“the International”). The two Locals referenced herein, 2275 and 335, are affiliates of that International. Roberts Aff. at ¶ 24. Jurisdiction in this case is predicated upon two separate statutes: (1) section 301(a) of the Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 185(a), and (2) section 502(a) of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a). The Company sets forth three separate “counts” or causes of action in its first amended complaint. In the first cause of action, the Company seeks “an order declaring that [the Pension Plan] Board’s determination of the amount of pension payable to Defendant Melvin Smith is correct and in full compliance with the terms of the Terminated Operations Plan and the Prior Plan [the Pension Plan].” First Amended Complaint (“Complaint”) at ¶ 24. In its second and third causes of action the Company seeks to set aside and vacate the arbitration award. More specifically, in the second cause of action the Company alleges that vacatur is mandated because the arbitrator lacked jurisdiction to decide Smith’s grievance in that the Terminated Operations Plan had no provision for arbitration. The third cause of action, also seeking vacatur, alleges that the award “is patently at odds with the terms of the Prior [Pension] Plan and the Terminated Operations Plan[.]” Id. at ¶ 34. The Company further alleges that the award “is not founded on the terms of either Plan, and [it] exceeds the authority of the Arbitrator.” Id. Based upon the foregoing allegations, in addition to seeking an order as described in its first cause of action, the Company seeks an order “enjoining Defendants from challenging Plaintiffs’ determination of the rights of Defendant Melvin Smith[,]” as well as an order “setting aside and vacating the Award of [the] Arbitrator[.]” Id. at 7. Local 2275 did not sit idly by while the Company commenced this action. At the same time the Company was commencing this action, defendant Local 2275 was also commencing an action to confirm the arbitration award. Affidavit of Alan R. Peterman (July 6, 1992) at ¶ 9. That action was instituted in the United States District Court for the Western District of Pennsylvania. Id. By stipulation, on June 10, 1992, Smith filed an amended answer in this action, interposing a counterclaim pursuant to section 301 of the LMRA, seeking confirmation of the arbitration award, as well as denial of the Company’s application to vacate that award. Amended Answer to Plaintiffs [sic] First Amended Complaint (“Answer”) at ¶ 33 and p. 10, ¶ d. In addition to that counterclaim, defendants enumerate five separate affirmative defenses. Eventually the parties also stipulated to dismissal of Local 2275’s Pennsylvania action. Peterman Aff. at ¶ 10. Defendants are now moving for summary judgment on their counterclaim, seeking confirmation of the arbitration award. They offer three possible grounds for confirmation. First, the arbitration award is enforceable because the arbitrator had the authority to decide that dispute because it arose under the terms of the terminated CBA and Pension Plan and the dispute was arbitrable under those Agreements. The defendants also argue that the award is enforceable because it “took its essence” from the CBA and Pension Plan. Id. at ¶ 11(a). Second, the arbitration award should be confirmed because, according to the defendants, by its actions the Company selected the grievance and arbitration process as the method of determining Mr. Smith’s entitlement to a pension under the Terminated Operations Plan; and the defendants continue to press their argument that the award “took its essence” from the CBA and Pension Plan and is thus enforceable. Id. at ¶ 11(b). Finally, the defendants assert that under Pennsylvania law, which they contend provides the governing statute of limitations, the Company’s action to vacate the arbitration award is not timely, and thus the defendants’ motion seeking confirmation of that award should be granted. Id. at ¶ 11(c). Alternatively, if the court declines to confirm the arbitration award, defendants Smith and the International Union seek dismissal of the complaint on the basis that the complaint fails to state a cause of action as against them. Insofar as the Company’s ERISA cause of action is concerned, the defendants are seeking dismissal of the same on the grounds that the plaintiffs lack standing. Last, if the court grants the defendants’ motion for confirmation, they are seeking attorney’s fees pursuant to section 502(g) of ERISA, 29 U.S.C. § 1132(g), on the theory that they would be a prevailing party in an action to enforce a participant’s pension rights. As an alternative basis for seeking attorney’s fees, the defendants ask the court to rely upon its “inherent power” to make such an award, claiming that the Company brought this action in bad faith. Memorandum of Law in Support of Defendants’ Motion for Summary Judgment (“Defendants’ Memorandum”) at 28. A little over a month after defendants filed their motion, the Company also filed a motion seeking summary judgment in its favor on the three causes of action alleged in their complaint. In addition, the Company is seeking summary judgment on defendants’ counterclaim, which seeks confirmation of the arbitration award. In making this motion, the Company argues, not surprisingly, that its action is not time barred. Next the Company asserts that Smith’s pension grievance is not arbitrable because it arose after the termination of the CBA and Pension Plan. Alternatively, the Company asserts that the arbitration award must be vacated because “it is not founded in the terms of Melvin Smith’s Pension Plan.” Plaintiffs’ Memorandum at 25. Even if the court finds that the arbitration award should be allowed to stand, the Company maintains that the fiduciaries correctly determined the amount of Smith’s pension, and thus they are entitled to summary judgment, finding as a matter of law that the Pension Plan Committee’s determination as to the monthly amount of Smith’s pension benefit is not arbitrary or capricious. The Company’s penultimate argument is that the International is an indispensable party to this action, and thus its motion to dismiss should not be granted. Finally, the Company counters that the defendants are not entitled to recover their attorney’s fees. The court will consider each of these many arguments in turn. DISCUSSION I. Summary Judgment Given that the parties are no doubt intimately familiar with the summary judgment standards as clarified by the Supreme Court in a trilogy of eases in 1986, the court sees no need to repeat the same herein. The court emphasizes, however, that the operative facts here are uncontroverted. Thus, rather than engaging in a fact-finding inquiry, these motions call upon the court to decide the legal significance to be accorded the undisputed facts. See Mays v. Mahoney, 91 Civ. 3435, 1994 WL 48831, at *3, 1993 U.S. Dist. LEXIS 19234, at *7-*8 (S.D.N.Y. Feb. 14, 1994) (“[controversy over the legal significance of undisputed facts will not impede summary judgment[ ]”). By way of example, among other things, this court is faced with the task of interpreting the CBA and the Pension Plan to determine whether defendant Smith’s grievance was arbitrable. See International Union, UAW, v. Young Radia tor Co., 904 F.2d 9, 10-11 (7th Cir.1990) (whether CBA required employer to arbitrate dispute with union properly decided on summary judgment motion where only interpretation of CBA involved). Consequently, this action is ripe for summary judgment. See Cadbury Beverages, Inc. v. Cott Corp., 850 F.Supp. 256, 257 (S.D.N.Y.1994) (summary judgment appropriate where parties disagree only as to legal conclusions to be drawn from the undisputed facts). II. Statute of Limitations The first potentially significant obstacle to the Company’s seeking to vacate the arbitration award is the defendants’ statute of limitations argument. Section 301 of the LMRA is the starting point for the court’s analysis of this statute of limitations defense. Section 301 confers subject matter jurisdiction on this court over actions to vacate an arbitration award. See Burns Intern. Sec. Services v. Intern. Union UPGWA, 47 F.3d 14, 16 (2d Cir.1995) (citation omitted). As with many federal statutes, however, the LMRA is silent as to the appropriate statute of limitations for such an action. Id. (citations omitted). Therefore, “[t]he relevant state statute is borrowed.” Id. (citations omitted). The parties vehemently disagree as to what the relevant state statute of limitations is in this case. Defendants assert that this court should look to Pennsylvania’s statute of limitations governing vacatur of arbitration awards because, in essence, that State has the most contacts with this litigation. In particular, defendants contend that because the arbitration award was rendered in Pennsylvania, by a Pennsylvania arbitrator, and because defendants Smith and the Local are both Pennsylvania residents, Pennsylvania and not New York has the greatest interest in having it law applied. Besides these Pennsylvania contacts, defendants point out that the CBA and Pension Plan were both executed in Pennsylvania by Pennsylvania residents. From defendant’s perspective, the only New York contacts are that New York is the forum state for this litigation and that the administration of one of the pension plans was transferred to New York after the plan was terminated. Based upon all of these factors, defendants strongly urge the application of Pennsylvania law, which, in most circumstances, requires that an action to vacate an arbitration award be brought “within 30 days after delivery of a copy of the award to the applicant[.]” 42 Pa.C.S. § 7314(b) (1994). It is undisputed that the Company did not file this action within that thirty day time frame. Therefore, defendants assert that they are entitled to summary judgment as a matter of law, dismissing as untimely the Company’s second and third causes of action, which seek to vacate the contested arbitration award. On the other hand, with equal conviction the Company argues that New York law controls the statute of limitations issue because it is the forum state. Countering defendants’ suggestion that New York has no interest in having its statute of limitations applied in this case, the Company lists a number of contacts to this State, which, taken together, in its opinion, warrant the opposite conclusion. Specifically, the Company enumerates the following New York contacts: (1) It has its principal place of business in Utica, New York; (2) “[a]ll members of the Retirement and Savings Plan Committee [including plaintiffs Moore, Harcourt and Daniels] have their offices at the Company’s principal office in Utica[;]” (3) “[t]he assets of the trust from which pension benefits are paid under the Terminated Operations Plan are held by Chase Manhattan Bank, the principal office of which is located in New York City[;]” and (4) “[t]he Investment Manager of the trust assets is ... located in New York City.” For all of these reasons, the Company steadfastly maintains that New York law applies. Accordingly, pursuant to section 7511(a) of the New York Civil Practice Law and Rules (“CPLR”), the Company claims that it filed the complaint in this action within ninety days of receiving the arbitration award. In fact, the Company commenced this action eighty-five days after receiving the arbitration award. See Affidavit of Allan Gunn (Aug. 17, 1992) at ¶ 2. What is more, at oral argument defendants conceded that if the court decides that New York law provides the controlling statute of limitations, then there is no dispute that this action to vacate was timely commenced. Tr. at 20. As mentioned at the start of this section, the LMRA provides the court with absolutely no guidance as to which statute of limitations to apply in this action. Despite that silence, in accordance with well-settled case law in this Circuit, the court will look to the law of the forum state —New York. See Hollander v. Brezenoff, 787 F.2d 834, 837 (2d Cir.1986) (citing Cope v. Anderson, 331 U.S. 461, 463, 67 S.Ct. 1340, 1341, 91 L.Ed. 1602 (1947)); Colonial Acquisition Part. v. Colonial at Lynnfield, 697 F.Supp. 714, 716 (S.D.N.Y.1988) (and cases cited therein); Zola v. Gordon, 685 F.Supp. 354, 363 (S.D.N.Y.1988) (citing, inter alia, UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 703-704, 86 S.Ct. 1107, 1112-1113, 16 L.Ed.2d 192 (1966)). As just stated, New York requires that an action to vacate an arbitration award be commenced within ninety days after delivery of the arbitration award to the party seeking vacatur; and that was done here. See CPLR § 7511(a). Thus, because the Company timely commenced its action to vacate, defendants’ motion for summary judgment on the grounds that the statute of limitations bars the Company’s second and third causes of action, based as they are upon vacatur of an arbitration award, must be denied. III. Arbitrability Because the court has determined that the Company’s action to vacate was timely, it must now turn to the more troublesome issue of arbitrability. As previously mentioned, among other things, the Company is seeking to set aside and vacate the arbitrator’s award. Conversely, in their first counterclaim, defendants are seeking confirmation of that same award. Bound up with the Company’s argument that the arbitration award should be vacated is the fundamental issue of whether defendant Smith’s grievance was ar-bitrable in the first place; that is, whether the CBA obligated the parties to arbitrate Smith’s particular grievance. See New York Typographical Union No. 6 & Printers League Section of the Association of Graphic Arts, 89 Civ. 4839, 1992 WL 84476, at *5, 1992 U.S.Dist. LEXIS 4865, at *14-*15, 122 Lab. Cas. (CCH) ¶ 10, 285 (S.D.N.Y. April 14, 1992). In Spector v. Torenberg, 852 F.Supp. 201 (S.D.N.Y.1994), the court accurately stated, “[a] party moving to vacate an arbitration award has the burden of proof[J” Id. at 206 (citation omitted). “[T]he showing required to avoid confirmation is very high[.]” Id. (citing Ottley v. Schwartzberg, 819 F.2d 373, 376 (2d Cir.1987)). “This limited judicial review reflects the desire to ‘avoid undermining the twin goals of arbitration, namely settling disputes efficiently and avoiding long and expensive litigation.’ ” Id. (quoting Folkways Music Publishers, Inc. v. Weiss, 989 F.2d 108, 111 (2d Cir.1993)). “As the Court of Appeals for the Second Circuit has observed, ‘[arbitration cannot achieve the savings in time and money for which it is justly renowned if it becomes merely the first step in lengthy litigation.’ ” Id. (quoting National Bulk Carriers, Inc. & Princess Management Co., 597 F.2d 819, 825 (2d Cir.1979)). As the foregoing makes abundantly clear, the Company, as the party seeking to vacate the arbitration award in this case, has a high hurdle to clear. There are several oft-repeated precepts which traditionally have guided courts in determining whether a given labor dispute is arbitrable. The first is that “[pjarty consent is the cornerstone of arbitration.” National Cleaning Contractors v. Local 32B-32J, 833 F.Supp. 420, 424 (S.D.N.Y.1993). Accordingly, “ ‘[arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he [or she] has not agreed to submit.’” Id. (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960)) (other citation omitted). The second is that it is the court and not the arbitrator which must decide whether a party can be compelled to arbitrate, as well as the issue of whether a given dispute is arbitrable. See Bevona v. 820 Second Ave. Associates, 27 F.3d 37, 39 (2d Cir.1994) (citing AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986)). In that way a party cannot be forced to “ ‘arbitrate the issue of arbitrability’.” Litton Financial Printing v. NLRB, 501 U.S. 190, 208, 111 S.Ct. 2215, 2226, 115 L.Ed.2d 177 (1991) (quoting AT & T Technologies, 475 U.S. at 651, 106 S.Ct. at 1419-1420). Thus, the issue of arbitrability is undeniably one for judicial determination. The third precept directs that in considering the arbitrability of a given dispute, the court should not decide the merits of the grievance. “Finally, where the collective bargaining agreement contains an arbitration clause, there is a ‘presumption of arbitrability.’ ” Truck Drivers Local 807 v. Regional Import & Export, 944 F.2d 1037, 1043 (2d Cir.1991) (quoting AT & T Technologies, 475 U.S. at 650, 106 S.Ct. at 1419). “In other words, “[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.’ ’ ” Id. (quoting AT & T, 475 U.S. at 650, 106 S.Ct. at 1419) (quoting in turn United Steelworkers, 363 U.S. at 582-83, 80 S.Ct. at 1353). As the Second Circuit has explained, “[t]his ‘presumption of arbitrability flows from the national labor policy favoring arbitration in labor disputes because it promotes labor peace and avoids the more volatile remedies of strikes and lock-outs.” Id. (citations omitted). Mindful of these general principles, the court will now turn to the issue of whether Smith’s pension grievance was arbitrable. IV. Litton/Nolde Framework To place the parties’ arbitrability arguments in context, it is first necessary to carefully examine two Supreme Court cases which separately form the basis for the parties’ respective positions on this issue. Those cases are Nolde and the more recent Litton decision. Defendants contend that even though the CBA, and the Pension Plan along with it, terminated in 1984, because the CBA contained a fairly detailed grievance and arbitration procedure, which was incorporated in the Pension Plan, the Company’s obligation to arbitrate survived the termination of those Agreements. In support of this position, defendants rely in large part upon the post-expiration presumption of arbitrability recognized by the Supreme Court in Nolde. The union in Nolde terminated the contract and four days later the employer closed the bakery and discharged all the employees. The employer rejected the union’s demand for severance pay under the expired agreement and refused to arbitrate the dispute. The Supreme Court compelled arbitration holding that “the parties’ obligations under their arbitration clause survived contract termination when the dispute was over an obligation arguably created by the expired agreement.” Id. 430 U.S. at 252, 97 S.Ct. at 1072. The Supreme Court further held that “in the absence of some contrary indication, there are strong reasons to conclude that the parties did not intend their arbitration duties to terminate automatically with the contract.” Id. at 253, 97 S.Ct. at 1073. Among the reasons the Court offered for its holding was the parties’ clear preference, manifested in the CBA, for arbitral rather than judicial interpretation of their obligations. The second reason relied upon by the Nolde Court was the fact that “the parties drafted their broad arbitration clause against a backdrop of well-established labor policy favoring arbitration as the means of resolving disputes over the meaning and effect of collective-bargaining agreements.” Id. at 254, 97 S.Ct. at 1073. The Court therefore concluded: The parties must be deemed to have been conscious of this policy when they agreed to resolve their contractual differences through arbitration. Consequently, the parties’ failure to exclude from arbitra-bility contract disputes arising after termination, far from manifesting an intent to have arbitration obligations cease with the agreement, affords a basis for concluding that they intended to arbitrate all grievances arising out of the contractual relationship. In short, where the dispute is over a provision of the expired agreement, the presumptions favoring arbitrability must be negated expressly or by clear implication. Id. at 255, 97 S.Ct. at 1074. In essence, defendant Smith contends that this Nolde presumption favoring arbitrability precludes the Company’s argument that his grievance was not arbitrable. The Company responds that Smith’s pension grievance is not arbitrable for two reasons. First, assuming that Smith’s grievance was over his entitlement to a disability pension, the Company asserts that such grievance is not arbitrable because it arose after the termination of the CBA. Second, according to the Company, Smith’s grievance is not arbitrable because he is actually a participant in the Terminated Operations Plan, which did not provide for arbitration of any kind. In taking this position, the Company asserts that in Litton the Supreme Court “severely narrowed the Nolde Bros, presumption of post-expiration arbitrability.” Plaintiffs’ Memorandum at 11. Based upon Litton, the Company contends that whether Smith’s pension grievance is arbitrable must be determined by examining whether that grievance “arises under” the terminated CBA and Pension Plan. See Litton, 501 U.S. at 205-206, 111 S.Ct. at 2225. And, for reasons which will be more fully discussed herein, the Company strongly maintains that Smith’s grievance does not “arise under” those Agreements within the meaning of Litton. The parties differ sharply, as the foregoing demonstrates, as to the effect of Litton on the presumption of post-expiration arbitrability announced in Nolde. The Company ardently believes, as just noted, that Litton “severely narrowed” that holding in Nolde, whereas defendant Smith claims that Litton is “at best, a refinement of the Court’s holding in Nolde." Reply Memorandum of Law in Support of Defendants’ Motion for Summary Judgment (“Defendants’ Reply”) at 8. There is no need for the court to become embroiled in that debate, however, given Smith’s willingness to have the arbitrability of his grievance examined in light of the Litton factors, which the court will now proceed to do. See id. at 9-10. In Litton, the Supreme Court expressly stated, “[w]e agree with the approach of the [National Labor Relations] Board and those courts which have interpreted Nolde Bros, to apply only where a dispute has its real source in the contract.” 501 U.S. at 205, 111 S.Ct. at 2225. “The object of an arbitration clause is to implement a contract, not to transcend it.” Id. The Litton Court further explained, “Nolde Bros, does not announce a rule that post-expiration grievances concerning terms and conditions of employment remain arbitrable.” Id. Rather, “[t]he Nolde Bros, presumption is limited to disputes arising under the contract.” Id. (emphasis added). The Litton Court then went on to define, as follows, the circumstances under which a post-expiration grievance can be said to arise under the contract: [1] only where it involves facts and occurrences that arose before expiration, [2] where an action taken after expiration infringes a right that accrued or vested under the agreement, or where, [3] under normal principles of contract interpretation, the disputed contractual right survives expiration of the remainder of the agreement. Id. (emphasis added). According to the Litton Court: Any other reading of Nolde Bros, seems to assume that post-expiration terms and conditions of employment which coincide with the contractual terms can be said to arise under an expired contract, merely because the contract would have applied to those matters had it not expired. But that interpretation fails to recognize that an expired contract has by its own terms released all its parties from their respective contractual obligations, except obligations already fixed under the contract but as yet unsatisfied. Although after expiration most terms and conditions of employment are not subject to unilateral change, in order to protect the statutory right to bargain, those terms and conditions no longer have force by virtue of the contract. Id. (citations omitted). The issue in Litton was whether layoff decisions that arguably violated the terms of an expired CBA were subject to the arbitration clause found in that agreement. The Court declined to compel arbitration in Litton, finding, inter alia, that the disputed layoff provision did not create a right that vested or accrued during the term of the CBA. Id. 501 U.S. at 209-210, 111 S.Ct. at 2227. Nor did that provision create a contractual obligation which continued after expiration of the CBA. Id. In reaching this conclusion, the Court emphasized that factors such as aptitude and ability, which were to be considered in deciding the order of layoffs under the CBA, “do not remain constant, but change over time.” Id. “They cannot be said to vest or accrue or to be understood as a form of deferred compensation^]” such as the severance pay at issue in Nolde. Id. Smith asserts that his pension dispute is arbitrable under the Litton standards because it satisfies at least two of the three criteria enumerated above. Specifically, Smith asserts that the Company’s actions infringed on a right of Smith’s which had both accrued and vested under the terms of the Pension Plan. Second, Smith maintains that the language of the Pension Plan indicates that the obligation to arbitrate survived termination of that Plan. The Company strenuously disagrees that Smith’s pension grievance is arbitrable under Litton. In addition to taking the contrary view as to the two Litton criteria just mentioned, the Company also asserts that Smith’s grievance does not involve facts and occurrences that arose before the expiration of the CBA and the Pension Plan. Moreover, the Company argues that pre-Litton cases establish that Nolde’s post-expiration presumption of arbitrability “evaporate[s] if the grievance [is] not asserted within a reasonable time after contract expiration,.... ” Plaintiffs’ Memorandum at 20. Thus, because five and a half years have lapsed between the time the CBA and Pension Plan were terminated and Smith’s initial pension application, the Company contends that it had no obligation to arbitrate his grievance. The court will address these arguments seri-atim. Because defendant Smith does not contend that his grievance “involves facts and occurrences that arose before expiration,” there is no need for the court to address that aspect of Litton, even though the Company did. However, given the parties’ obvious disagreement as to whether either of the other two Litton criteria are satisfied, the court must carefully examine those two criteria in light of the particular facts of this case. A. Right at Issue Before doing so, the court must define the nature of the right arbitrated. Definition of the scope of that right is necessary for two reasons. First, both of the disputed Litton factors are directed to the right at issue. Second, the parties appear to have differing views as to the nature of the right at issue. According to Smith, the issue which was arbitrated was his right to a pension generally. When discussing the issue of arbitrability, however, the Company defines Smith’s grievance more narrowly, speaking almost exclusively in terms of Smith’s claim for a disability pension. Thus, only after determining the precise nature of the right at issue will this court be in a position to apply the Litton criteria to the facts before it. See Cincinnati Typographical Union v. Gannett, 17 F.3d 906, 907 (6th Cir.1994) (“As the legal issue before us is whether the printers’ right to reproduce copy is one that is ‘accrued or vested’ such that it survives the expiration of a collective bargaining agreement, we must first explain exactly what that right is and how it came to be.”). Without any discussion and without citing any authority, the Company baldly asserts, “[t]he arbitrability of Smith’s grievance must be determined by the grievance Smith actually filed.” Plaintiffs Memorandum at 15 n. 4. Also without citing any authority, defendant Smith counters, “It is well established, ..., that parties to a collective bargaining agreement may broaden the scope of a grievance upon submittal to an arbitrator.” Defendants’ Reply at 12 n. 24. Defendant Smith further asserts that in this case the court “must rely upon the actual submission to the arbitrator” in making the initial determination as to whether his grievance was arbitrable. Id. There are two weaknesses with these assertions — one substantive and the other procedural. Substantively, as just stated, the parties failed to provide any legal support for their respective positions as to where the court should look to determine the arbitrability of a given dispute. Proeedurally, neither party refers the court to any specific document or documents which it believes establishes the nature of the right Smith sought to arbitrate. This omission is particularly glaring with respect to defendant Smith because despite his contention that the court should look to “the actual submission to the arbitrator,” id. (emphasis added), insofar as the court is able to discern, he has not supplied any such document as part of this record. Moreover, various documents which are part of the record, refer only to Smith’s request for a disability pension. Despite this, Smith maintains on these motions that he grieved through arbitration the broader right of his eligibility to a pension — without specifying what form that pension might eventually take. The issue of the scope of the parties’ submission to an arbitrator arises most often in the context of whether the arbitrator exceeded the scope of the granted authority. In that setting, the Second Circuit has recognized, on more than one occasion, that “ ‘[t]he ‘scope of authority of arbitrators generally depends on the intention of the parties to an arbitration, and is determined by the agreement or submission.’ ’ ” Local 1199 v. Brooks Drug Co., 956 F.2d 22, 25 (2d Cir.1992) (quoting Synergy Gas Co. v. Sasso, 853 F.2d 59, 63-64 (2d Cir.), cert. denied, 488 U.S. 994, 109 S.Ct. 559, 102 L.Ed.2d 585 (1988)) (quoting in turn Ottley v. Schwartzberg, 819 F.2d 373, 376 (2d Cir.1987)). “‘Such an agreement or submission serves not only to define, but to circumscribe, the authority of the arbitrators.’” Id. (quoting Ottley, 819 F.2d at 376 (citation omitted)). Significantly, the parties may broaden the scope of the issues submitted for arbitration by their course of conduct during the arbitration. See, e.g., International Chemical Workers Union, Local No. 566 v. Mobay Chemical Corp., 755 F.2d 1107, 1110 (4th Cir.1985) (agreement to arbitrate particular issues need not be express, but may be implied or established by the parties’ conduct). Thus, a determination as to the scope of an arbitrator’s authority depends upon two factors — the parties’ agreement or submission, as well as their course of conduct. In the present case, as previously mentioned, at this juncture the parties have not framed the issue precisely in terms of whether the arbitrator exceeded the scope of his authority. Rather, according to the parties, the issue, which is to a certain extent related, is whether Smith’s grievance was arbitrable in the first instance. Nevertheless, give the seeming lack of case law addressing the discrete issue of where a court should look to determine the arbitrability of a particular grievance, the court will look to the foregoing principles for guidance. Although it is not readily apparent from the record, as previously discussed, it appears on the face of it that the submissions to the arbitrator, particularly the “Request for Arbitration Panel,” indicate that the issue for arbitration was Smith’s eligibility for a disability pension. Consistent with that interpretation, the arbitrator framed the first issue solely in terms of a disability pension. The arbitrator did frame the second issue more broadly though: “If the grievance is arbitrable is the Grievant now eligible for a disability pension, a 75/80 pension, or early commencement of a deferred vested pension even though he was not disabled when his employment was terminated?” Roberts Aff., exh. J thereto at 8. Following the arbitrator’s lead (or so it seems), it appears from the arbitration award that the parties acquiesced in what, on the face of it, amounted to a broadening of the issues submitted to arbitration. Thus, not only was Smith’s eligibility for a disability pension arbitrated, but also his eligibility for other types of pensions provided for under the CBA and Pension Plan. Indeed, in the end the arbitrator declined to award Smith a disability pension, but he did award him deferred pension benefits. Therefore, the court finds that even if the parties submitted only the issue of Smith’s eligibility for a disability pension, the arbitrator broadened that issue to include whether Smith might be eligible for a 75/80 pension or early commencement of a deferred vested pension. What is more, at least insofar as the court is able to discern from the present record, it can certainly be implied that the parties acquiesced in the arbitrator deciding that broader issue. Having determined that the issue before the arbitrator was Smith’s eligibility for a pension, and not just a disability pension, the court will next consider, in accordance with Nolde, whether the parties expressly or by clear implication negated the presumption favoring arbitrability. See Nolde, 430 U.S. at 255, 97 S.Ct. at 1074. If the court answers that query in the negative, then it will go on to consider whether under Litton the disputed grievance is over a right “arising under” the terminated CBA and Pension Plan. B. Negation of Arbitrability Presumption There is no specific clause in either the CBA or in the Pension Plan excluding from arbitration contract disputes arising after termination of those Agreements. In fact, arguably the arbitration clause contained in the Pension Plan, which specifically states that “[i]f any difference shall arise between the Company ... and any person who shall be an applicant for a pension as to ... an applicant’s right to a pension,” evinces a contrary intent. That is, because a dispute regarding such right could not arise until an applicant applied for a pension, and such application could be received well after the termination of the CBA and the Pension Plan, as was the case with Smith, the parties intended that disputes regarding that right remained arbitrable, even after the termination of those two Agreements. This conclusion is bolstered by the fact that the arbitration clause was not limited in duration. Therefore, in the absence of any indication from the parties, either express or by clear implication, of an intent to negate the presumption favoring arbitrability, as in Nolde, this court assumes that the parties “intended to arbitrate all grievances arising out of the contractual relationship^” Nolde, 430 U.S. at 255, 97 S.Ct. at 1074. Thus, the court must next consider whether Smith’s grievance arises under the terminated CBA and Pension Plan, which in turn involves application of the Litton criteria previously set forth herein. C. Application of Litton 1. “Accrued or Vested” Smith offers several reasons which he believes support a finding that his right to a pension “accrued or vested” pursuant to the terms of the CBA and related Pension Plan. First, Smith points to the fact that under the terms of the Pension Plan, employees were to receive a pension. He further reasons that the Pension Plan provided that bargaining unit employees, such as himself, were entitled “to a certain pension benefit for every year that they were employed by the Company.” Defendants’ Reply at 11. Thus, according to Smith, under the terms of those two Agreements, he was accruing a pension benefit every year he worked. Id. Smith further reasons that his right to an “accrued benefit under the Plan vested when the Plan was terminated.” Id. In making this argument, Smith relies upon section XI of the Pension Plan which states, in relevant part; In the event of termination or partial termination of this Agreement the rights of the affected persons to their accrued benefits under the Agreement, to the extent then funded, shall vest and be non-forfeitable .... Roberts Aff., exh. B thereto at 37 (emphasis added). Relying upon this provision, Smith asserts that when the Pension Plan terminated on August 31, 1984, then, his “right to a pension vested.” Defendants’ Reply at 11. Thus, it is Smith’s position that he accrued the right to a pension benefit while the CBA and Pension Plan were still in effect and that his right to a pension vested upon termination of the Plan. Consequently, in Smith’s view, clearly this pension dispute was arbi-trable. On the other hand, the Company asserts that its denial of Smith’s pension does not infringe on any right vested or accrued under the CBA; that is, it did not infringe on any right vested or accrued on or before August 31, 1984 — the date the CBA, by its terms, expired. The Company points to the fact that on that date Smith was neither disabled nor was he at least 55 years old. Nor did his age and credited service at that time total eighty years. The Company further asserts that Smith “did not meet the ‘conditions’ for a disability or 75/80 pension when the pension plan expired on August 31, 1984, and he had no accrued or vested right to a pension of either kind on that date.” Plaintiffs’ Memorandum at 18. In the Company’s opinion, Smith is basing his claim to a pension on “rights he might have earned if his employment had continued and if the plan had remained unchanged[;]” but neither of those events happened. Id. After discussing the Litton three-prong test for determining whether a post-expiration dispute arises under a CBA, the Sixth Circuit in Cincinnati Typographical, stated, “[t]here are two basic ways in which the union might show us that the right is accrued or vested and thus survives the expiration of the CBA.” 17 F.3d at 910. According to the Sixth Circuit, first, “a court may use standard principles of contract interpretation to determine whether a right is vested.” Id. (citation omitted). Employing those principles, a court “might conclude [that] the parties intended a right to vest if [the court] were shown contract language or extrinsic evidence to support that conclusion.” Id. (citations omitted). Neither the CBA nor the extrinsic evidence persuaded the Court in Cincinnati Typographical that the “right to not be laid-off while reproduction is on the hook” was intended to vest. There was nothing in the CBA which manifested such intent. Furthermore, the proffered extrinsic evidence demonstrating why the parties bargained for that right, did “not provide [the Court] with evidence of the intended duration of the right with regard to particular employees.” Id. at 911 (emphasis in original). Third, the Court pointed out that because in an earlier agreement the parties had “limited the protection from layoffs while reproduction was on the hook to only a few printers,” that “tend[ed] to indicate that [they] viewed the right as a creature of a particular contract and not as a right vested and thus guaranteed for the future.” Id. Thus, the Sixth Circuit was not persuaded under standard principles of contract interpretation, that the right at issue there had vested. The second way in which a party may show that a given right is accrued or vested is if such right falls into the category of rights which “courts presume to be ‘accrued or vested’ without any other evidence in a contract.” Id. Rights which fall into that category “are rights that can be worked toward or accumulated over time.” Id. (citation omitted). Examples of rights which accrue or vest over time are severance pay and vacation pay. Id. The Sixth Circuit distinguished other rights which it described as “strictly ‘creature[s] of the collective bargaining agreement and [their] life as a matter of contract does not extend beyond contract expiration.’ ” Id. (quoting Chauffeurs, Teamsters & Helpers, Local Union 238 v. C.R.S.T., Inc., 795 F.2d 1400, 1404 (8th Cir.) (en banc), cert. denied, 479 U.S. 1007, 107 S.Ct. 647, 93 L.Ed.2d 702 (1986)). Holding that “[t]he nature of the right at issue here is not one that we presume to be vested[,]” the Sixth Circuit reasoned that the right not to be laid off while reproduction is on the hook is not accrued step-by-step as an employee works for an employer, such as was true of the severance pay in Nolde. Id. Instead, the Court described the right in Cincinnati Typographical as a “bargained-for worker protection, like the right[] not to be dis-charged_” Id. The Court therefore affirmed the district court’s grant of summary judgment finding that the employer had no obligation to arbitrate the union’s challenge relating to layoffs. Regardless of which of the two approaches enunciated by the court in Cincinnati Typographical this court employs, the result is the same. The court finds that Smith’s right to a pension accrued or vested under terminated Agreements and thus such right arose thereunder in accordance with Litton. Employing a contractual analysis, the court finds that these parties intended the right to a pension to vest under the circumstances of this case based upon the plain language of the Pension Plan. Unlike the CBA in Cincinnati Typographical, which contained no language evincing an intent to vest, as previously noted, this Pension Plan plainly states that “[i]n the event of termination ... of this Agreement the rights of the affected persons to their accrued benefits under the Agreement, to the extend then funded, shall vest and be non-forfeita-ble_” Roberts Aff., exh. B thereto at 37 (emphasis added). Furthermore, this is not a situation such as Cincinnati Typographical where the bargaining history or other extrinsic evidence demonstrated a contrary intent, “that is that the parties viewed the right [to a pension] as a creation of a particular contract and not as a right vested and thus guaranteed for the future.” See Cincinnati Typographical, 17 F.3d at 911. Indeed, neither party presented any such extrinsic evidence. Not only did Smith’s right to a pension vest under the terms of the Pension Plan, but that right, like severance pay and vacation pay, which can be worked toward or accumulated over time, is in the nature of a right which courts presume to accrue or vest even in the absence of any other evidence in the contract. See id.; see also Local Union No. 7R v. Gold Star Sausage Co., 713 F.Supp. 1379, 1381 (D.Colo.1989), aff'd on other grounds sub nom. United Food & Comm. Wkrs. v. Gold Star Sausage Co., 897 F.2d 1022 (10th Cir.1990) (“Generally, courts view rights such as severance pay, pension plan rights, and vacation pay as having vested or accrued during the life of the agreement.”); Truckdrivers, Chauffeurs and Helpers’ Local Union No. 384 v. M.G. Burdett Gas Products Co., No. 85-1062, slip op. at 14 (E.D.Pa. March 21, 1985) (with no discussion, court described pension benefits as involving rights accrued or vested under the CBAs). Moreover, pensions are considered to be a form of deferred compensation and even the Supreme Court appears to have endorsed the view, albeit implicitly, “that rights to deferred compensation are ordinarily ‘vested’ or ‘accrued’ by contract.” Carr v. First Nationwide Bank, 816 F.Supp. 1476, 1491 n. 9 (N.D.Cal.1993). Third, in the court’s opinion, defendant Smith’s right to a pension vested or accrued under the terminated Agreements because acts securing that right, such as his accumulation of time toward that right, occurred prior to that termination. See Amalgamated Clothing & Textile Workers v. Stanbury, 811 F.Supp. 464, 467 (E.D.Mo.1992) (citing C.R.S.T., supra, 795 F.2d at 1403-1404 (collecting cases)). For all of these reasons, the court finds that Smith’s right to a pension accrued or vested under the terminated Agreements, and as such that right arises under those terminated Agreements for purposes of applying the presumption of post-expiration arbitrability. Consequently, as the Sixth Circuit explained, based upon Litton, “[o]nce it is determined that a grievance arises under a contract, the policy favoring arbitration makes it ‘presume[d] as a matter of contract interpretation that the parties did not intend a pivotal dispute resolution provision to terminate for all purposes upon the expiration of the agreement.’ ” See Cincinnati Typographical, 17 F.3d at 910 (quoting Litton, 501 U.S. at 207-208, 111 S.Ct. at 2226). The Company seeks to avoid this finding by relying upon the definitions of “accrued benefit,” “normal retirement benefit,” and “nonforfeitable” found in ERISA. Based upon those statutory definitions, the Company contends that a disability pension does not accrue during active service; nor does it “become ‘unconditional,’ and thus does not become ‘nonforfeitable,’ until the employee qualifies for it and begins to receive it.” Plaintiffs Memorandum at 17-18 n. 5. Thus, asserts the Company, “[u]ntil [an employee] qualifies, the benefit can be taken away by negotiation, amendment, expiration or termination of a benefit plan.” Id. at 18 n. 5. Although the Company does not state it in precisely these terms, evidently, based upon the foregoing, it believes that Smith’s right to a disability pension did not accrue or vest under either of the terminated Agreements. Perhaps there might be some validity to the Company’s position if the right at issue was Smith’s right to a disability pension. The court has already rejected the view that the subject of Smith’s grievance was so limited, however. Moreover, in the court’s view, whether a given right has “vested” or “accrued” within the meaning of ERISA presents a different issue, implicating different concerns, than the issue of whether such right has “vested” or “accrued” so as to support a finding that such right arose under a contract within the meaning of Litton. In the former situation, the need for narrowly crafted definitions of accrual and vesting is easier to see, given the nature of the statutory protection afforded such rights under ERISA. Taking a restrictive view of what constitutes a vested or accrued right for purposes of deciding whether a labor dispute is arbitrable would contradict the strong national policy favoring arbitration, however. Thus, the court declines to follow the ERISA-oriented approach urged by the Company. 2. Survival of Expiration Because the court has determined that Smith’s right to a pension arose under the terminated Agreements because it accrued or vested thereunder, there is no need for the court to consider to consider the third Litton scenario — whether under normal principles of contract interpretation his pension rights survive termination of the Agreements. D. Timeliness of Grievance As an additional basis for challenging the arbitrability of Smith’s grievance, the Company asserts that even if his grievance arose under the terminated Agreements, he still would not be able to avail himself of the Nolde presumption of post-expiration arbitrability because that presumption “evaporated” in that Smith did not seek a pension until five and a half years after the expiration of those Agreements. Plaintiffs’ Memorandum at 20. In support of this position, the Company relies upon United Paperworkers Intern. v. Wells Badger Ind., 835 F.2d 701 (7th Cir.1987), C.R.S.T., 795 F.2d 1400, and dicta in Local 703, Intern. Broth. of Teamsters v. Kennicott, 771 F.2d 300 (7th Cir.1985), all of which, incidentally, were decided prior to Litton. Defendant Smith responds that this timeliness argument is a “red herring” in that he filed his grievance immediately after receiving the Company’s decision denying his pension request. Defendants’ Reply at 14 n. 26. The court disagrees with the Company’s assertion that defendant Smith should not be allowed to rely on the Nolde presumption of arbitrability due to the passage of time between the termination of the subject Agreements and Smith’s request for a pension. Insofar as the cases upon which the Company relies are concerned, the court finds that none of them support the Company’s position. The Court in United Paper-workers flatly rejected the Union’s argument that its post-contract grievance must be arbitrated in accordance with Nolde. 835 F.2d at 705. In so doing, the Court made no mention of whether the timeliness of the Union’s grievance played any part in its decision; and thus that ease is of questionable relevance to the narrow issue of timeliness presented by the Company in this case. In C.R.S.T., the second case cited by the Company, the Court simply observed in passing that “[t]he passage of more than one year between the expiration of the contract and the employee’s discharge also makes application of the Nolde presumption of doubtful propriety.” 795 F.2d at 1404. That dicta, from the Eighth Circuit, clearly is of extremely limited precedential value here. In Kennicott, the final case referenced by the Company, the Seventh Circuit stated, “[w]e do not read the Nolde presumption of arbitrability to persist indefinitely after expiration.” 771 F.2d at 303. Distinguishing Nolde, where “the event triggering the severance-pay grievance (the closing of the plant) occurred four days after the expiration of the contract,” the Kennicott Court explained, “the events triggering the grievances (the discharge and the granting of retroactive pay increases) occurred more than six months after the Agreement expired[,]” and thus it found that those grievances were not arbitrable. Id. at 303 and 304. The Court explained, “[although it may be reasonable to presume that parties intend to arbitrate grievances arising shortly after the expiration of a contract, the presumption weakens as the time between expiration and grievance events increases.” Id. at 303. Kennicott is readily distinguishable on its facts, however, from the present case. Unlike Kennicott, the pension grievance at issue in this case concerns rights which accrued under the terminated Agreements, so that the Nolde presumption applies even if the grievances arose after six months from the expiration of the collective bargaining contract. See Chicago Web Pr. Pressmen’s Un. v. Chicago Tribune, 657 F.Supp. 351, 355 (N.D.Ill.1987). In Chicago Web, the court was presented with a timeliness issue remarkably similar to the timeliness issue in this case. The issue was “whether Nolde’s presumption of post-expiration arbitr