General Drivers, Warehousemen and Helpers, Local Union 89 v. Moog Louisville Warehouse, 87-5516

Citation852 F.2d 871
Decision Date30 September 1988
Docket NumberNo. 87-5516,87-5516
Parties128 L.R.R.M. (BNA) 3100, 57 USLW 2107, 109 Lab.Cas. P 10,626 GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION 89, Plaintiff-Appellee, v. MOOG LOUISVILLE WAREHOUSE, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Ivan H. Rich, Jr., Barnett and Alagia, Louisville, Ky., for defendant-appellant.

Alton D. Priddy, Hardy, Logan, Priddy and Cotton, Louisville, Ky., for plaintiff-appellee.

Before KRUPANSKY and WELLFORD, Circuit Judges, and GILMORE * District Judge.

WELLFORD, Circuit Judge.

This case involves interpretation of a collective bargaining agreement. The agreement includes a grievance and arbitration clause which covers disputes or grievances arising from alleged violations. Defendant Moog Louisville Warehouse, Inc. ("Moog") discharged a member of the plaintiff union who protested his discharge through the procedurally defined grievance steps up to the final stage of arbitration. Moog refused the demand for arbitration, contending that the request made was untimely and therefore rendered the grievance not arbitrable. The union brought this action to compel Moog to arbitrate. The district court decided in a brief memorandum that the timeliness of filing the arbitration request was itself a question "to be determined by the arbitrator," and granted the plaintiff union judgment on the pleadings. He cited three cases in support of this conclusion, one from the Supreme Court, one from this circuit, and one from a district court. We conclude that it was error to compel arbitration for the reasons hereafter stated.

The first case cited, John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), sets out a proposition, frequently cited:

"Under our decisions, whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties."

376 U.S. at 546-47, 84 S.Ct. at 912-13 (quoting Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 1320, 8 L.Ed.2d 462 (1962)).

The Court goes on to elaborate:

The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty. Thus, just as an employer has no obligation to arbitrate issues which it has not agreed to arbitrate, so a fortiori, it cannot be compelled to arbitrate if an arbitration clause does not bind it at all.

Id., 376 U.S. at 547, 84 S.Ct. at 913.

The court must, then, first decide in this case whether Moog has agreed under the terms of the collective bargaining agreement to arbitrate a claim that Moog asserts not to be arbitrable. We examine, therefore, the agreement that sets out the mutual understanding of the parties. The pertinent provisions of the agreement are:

Section 1 --Any disputes, complaints or grievances arising from alleged violations of this Agreement by the Company shall be settled and determined through the following procedure.

Step (b)--If a grievance is not settled at Step (a) of the grievance procedure, it shall, within five (5) working days, be reduced to writing, and presented to the Company. An officer or other official of the Company (together with such associates as he may wish to assist him in the matter) and a Business Representative or officer of the Union (together with such associates as he may wish to assist him in the matter) shall, within five (5) working days, attempt to settle the grievance, and the Company shall thereafter, within five (5) working days, give the Union its answer to said grievance in writing;

Step (c)--If the grievance is not then satisfactorily settled and if the grievance is otherwise arbitrable under this Agreement, it may be referred to arbitration in strict accordance with the provisions of this Agreement pertaining to arbitration but not otherwise, provided, however, that if the Union fails to notify the Company in writing by registered or certified United States mail within 15 calendar days after the Company gives its answer in writing to a grievance at Step (b) of the grievance procedure, above, then the Union shall be conclusively presumed to have accepted the Company's answer thereto and said grievance shall not thereafter be arbitrable.

....

Section 4 --No grievance shall be arbitrable unless it involves an alleged material violation by the Company of one or more specific provisions of this Agreement, which alleged violation shall be designated in writing by the Union to the Company no later than the time such grievance is appealed to Step (b) of the grievance procedure hereinbefore set forth.

The question in this case is whether Moog is bound to arbitrate a grievance when and if there is an expressed conclusive presumption that the union's failure to pursue that grievance for fifteen days beyond Step (b) renders the grievance "thereafter [not to be] arbitrable." We do not construe the plain language of the substantive part of the agreement in dispute to compel arbitration unless the timeliness condition has been met; thus we reverse the decision of the district court. John Wiley & Sons, supra, does not indicate a different result. See Philadelphia Printing Pressmen's Union No. 16 v. International Paper Co., 648 F.2d 900 (3d Cir.1981), which seems to adopt the rationale of the dissenting opinion of Judge Rosenn in Local Union # 765 v. Stroehmann Bros. Co., 625 F.2d 1092 (3d Cir.1980).

Local 12934 of Int'l Union District 50, U.M.W. v. Dow Corning Corp., 459 F.2d 221, 224 (6th Cir.1972), cited by the district court, held that "procedural matters arising out of that [collective bargaining agreement] dispute are for the arbitrator, not the courts, to determine." The defendant employer, Dow Corning, in that case claimed that procedural requirements for arbitration had not been met. No specific provision in the collective bargaining agreement, or particularly in the arbitration clause itself, that would bar arbitration altogether for an untimely filed claim was relied upon in that case. 1

A presumption of arbitrability does apply "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." Communication Workers of America v. Michigan Bell Telephone Co., 820 F.2d 189, 191 (6th Cir.1987) (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960)). More important, however, "the question of arbitrability--whether a collective-bargaining agreement creates a duty for the parties to arbitrate the particular grievance--is undeniably an issue for judicial determination." AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986) (emphasis added) (citing Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. at 1352-53).

AT & T Technologies discussed the holding of John Wiley & Sons:

The "threshold question" there was whether the court or an arbitrator should decide if arbitration provisions in a collective-bargaining contract survived a corporate merger so as to bind the surviving corporation. Id. [376 U.S.] at 546, 84 S.Ct., at 912. The Court answered that there was "no doubt" that this question was for the courts. " 'Under our decisions, whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties." ... The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty." Id. at 546-547, 84 S.Ct., at 912-913 (citations omitted).

475 U.S. at 649, 106 S.Ct. at 1419.

Doubts about whether "the arbitration clause ... covers the asserted dispute ... should be resolved in favor of coverage." Id. at 650, 106 S.Ct. at 1419 (quoting Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. at 1353). It seems clear, however, and without any reasonable doubt, that the arbitration section of the agreement between these parties excludes a grievance about which the union has failed to give notice, as required by Step (c), of a request for arbitration within 15 days after the company has given its answer to a grievance brought by the union. 2 Moog, under the Supreme Court precedent above discussed, cannot be required to submit to an arbitrator for decision a matter expressly and "with positive assurance" excluded from arbitration. The language of the grievance and arbitration provision is a substantive exclusion of a particular type of grievance declared "not ... thereafter ... arbitrable."

In Oil, Chemical & Atomic Workers' Int'l Union, Local 4-447 v. Chevron Chemical Co., 815 F.2d 338 (5th Cir.1987), the language of the arbitration clause provided, in event of untimely notification, that the claim would be "considered abandoned." Id. at 339 n. 1. That a claim would be deemed "abandoned" is a different thing from saying, as does the collective bargaining agreement under consideration, that the union shall be "conclusively presumed to have accepted" the company's position "and said grievance shall not thereafter be arbitrable." (Emphasis added). The comparison of the language of the Moog contract provision with that in Chevron Chemical makes it evident that the latter provision was not as clear and unambiguous about the intent of the parties concerning nonarbitrability as in the instant case. 3

In Denhardt v. Trailways, Inc., 767 F.2d 687, 689 (10th Cir.1985), the court found "no 'positive assurance' in the language of the collective bargaining agreement that a dispute over the failure to meet...

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