Raceway Park, Inc. v. Local 47, Service Employees Intern. Union

• Decision Date: 25 January 1999
• Docket Number: No. 97-4251,97-4251
• Citation: 167 F.3d 953
• Parties: 160 L.R.R.M. (BNA) 2274 RACEWAY PARK, INC.; Toledo Maumee Raceways, Inc., Plaintiffs-Appellees, v. LOCAL 47, SERVICE EMPLOYEES INTERNATIONAL UNION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 953

167 F.3d 953

160 L.R.R.M. (BNA) 2274

RACEWAY PARK, INC.; Toledo Maumee Raceways, Inc., Plaintiffs-Appellees, v. LOCAL 47, SERVICE EMPLOYEES INTERNATIONAL UNION, Defendant-Appellant.

No. 97-4251.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 6, 1998.

Decided Jan. 25, 1999.

Jack M. Lenavitt (briefed), Joseph A. Battani (argued and briefed), Toledo, OH, for Plaintiffs-Appellees.

Gregory J. Lavelle (argued and briefed), Macedonia, OH, for Defendant-Appellant.

Before: MERRITT and DAUGHTREY, Circuit Judges; WISEMAN, District Judge. ^*

MERRITT, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. WISEMAN, D.J. (pp. 963-65), delivered a separate dissenting opinion.

OPINION

MERRITT, Circuit Judge.

Defendant-Appellant Service Employees International Union, Local 47 ("Local 47") appeals a decision of the U.S. District Court for the Northern District of Ohio granting summary judgment in favor of Plaintiff-Appellee Raceway Park, Inc. and Toledo Maumee Raceways, Inc. (collectively "Raceway"), holding that a dispute under the parties' collective bargaining agreement was inarbitrable, and denying Defendant's Motion for Summary Judgment, which sought to compel arbitration of the said dispute. This case presents the issue of whether a federal district court may decide that a dispute otherwise appropriate for arbitration under a collective bargaining agreement is inarbitrable because the notice of intent to seek arbitration is untimely, or whether the issue of timeliness is itself an issue of procedural arbitrability which should be submitted to arbitration. General Drivers, Warehousemen and Helpers, Local Union 89 v. Moog Louisville Warehouse, 852 F.2d 871, 873 (6th Cir.1988) (reversing judgment of district court which held that timeliness of filing of arbitration request was question to be determined by arbitrator), a decision with which we disagree, requires us to hold that the timeliness of the request for arbitration is not subject to arbitration in this Circuit, and despite strong misgivings, we affirm the judgment of the district court.

In Moog, this Court held that "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." 852 F.2d at 873. While this panel is bound by our Court's holding in Moog, and must therefore affirm the judgment of the district court in the instant matter, a close inspection of this Court's precedent compels us to conclude (1) that Moog represents a grave departure from Supreme Court doctrine mandating that issues of procedural arbitrability be determined by arbitrators, not judges, see John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); and (2) that Moog should be reconsidered, along with this opinion itself, by a full en banc panel of this Court.

I. BACKGROUND

Raceway operates Raceway Park in Toledo, Ohio, which hosts actual on-site horse races, otherwise known as either "live races" or "races on the track." Parimutuel wagering is conducted on both "live races" at the Park and on horse races run at other race tracks nationwide which are televised (simulcast) at Raceway Park. Until the end of 1995, the State of Ohio, with some limited exceptions, had permitted parimutuel betting only on horse races conducted within the State of Ohio. In September 1996, however, the Ohio Legislature passed a bill permitting racetracks in Ohio, such as Raceway Park, to accept parimutuel wagering on horse races conducted nationwide. The format for such wagering, known as "Full Card Simulcasting," allows race tracks within the State of Ohio to increase their revenue substantially by allowing wagering on some of the top horse races around the country.

Patrons at Raceway Park purchase and cash in wagering tickets issued from machines operated by employees of the track known as mutuel clerks. At all times pertinent to this action, Local 47 was the bargaining representative for Plaintiff's employees. On February 10, 1994, Raceway and Local 47 entered into a collective bargaining agreement. During the negotiations for the collective bargaining agreement, which is effective until December 31, 1998, Raceway agreed to pay mutuel clerks a base rate salary of thirty-five dollars and fifty cents ($35.50) per day based on ten races per day. For every race beyond ten in a day, Raceway agreed that mutuel clerks were to be paid one additional bonus dollar for each additional "live" race "on the track." As Schedule A to the collective bargaining agreement makes clear: "One Dollar ($1.00) shall be added to the base rate for each live race thereafter on any one daily card." In addition, on February 10, 1994, the parties also signed a Letter of Understanding, which provided, in pertinent part: "It is further agreed that for purposes of the 1994 Contract, any televised race received by Raceway Park at 5700 Telegraph Rd. with parimutuel betting shall be counted as a race on the track for purposes of determining base rate."

The Ohio Legislature's decision in September 1996 to allow parimutuel betting on horse races run nationwide and televised in Ohio caused the current rift between the parties with respect to the wages paid to Local 47 members working at Raceway Park. It is not difficult to see why. After the law was changed, Raceway Park could take bets on well over one hundred races per night, the overwhelming majority of which were national races simulcast at the track for the mere purpose of taking wagers. Although Local 47 members working as mutuel clerks must now process bets on a significantly greater number of races, the Letter of Understanding signed by both parties states that such races are only to be counted as "live races" or "races on the track" for the purpose of determining base rate pay. That is, Local 47 employees do not receive the additional $1.00 per race bonus for ever race beyond the first ten races of the evening, even though they have to process bets on those races.

As a result of this new law, officials of both Raceway and Local 47 met on September 18, September 20, and October 9, 1996 to discuss the full effect that Full Card Simulcasting would have on wages paid to Local 47 employees. Raceway realized that a change in the collective bargaining agreement was necessary due to the fact that it was not compensating employees for the additional televised races that Full Card Simulcasting brought to the track. At the September 20, 1996 meeting, Local 47 produced a written grievance concerning the effect that Full Card Simulcasting has on wages. This grievance was presented to Raceway due to Local 47's apparent concern that the language of the collective bargaining agreement required a grievance to be filed within 48 hours after it arose. On two occasions, Raceway agreed to extend the 48-hour deadline, first to September 19 and then to October 20, 1996.

On October 9, 1996, both parties met face-to-face for the last time to discuss Full Card Simulcasting and its effect on wages. This meeting proved futile. On October 17, 1996, Local 47 again presented its written grievance to Raceway's general manager, seeking to enforce the terms of the collective bargaining agreement as written. The grievance was not resolved. Article V of the parties' collective bargaining agreement governs their official grievance procedures. It provides:

ARTICLE V. GRIEVANCE AND ARBITRATION PROCEDURE

5.1. If there are any grievances by an employee or any differences or dispute of any kind or character between the Employer and the Union, involving the interpretation or application of the provisions of this Agreement and/or any work rules promulgated by the Employer, such grievance, difference or dispute shall be handled in the following manner:

(A). The aggrieved employee and/or a representative of the Union shall, within forty eight (48) hours after the grievance has arisen, or after the employee became aware of such grievance, discuss the matter with the Mutuel Manager or his designated representative.

(B). If no agreement is reached within twenty four (24) hours after such discussion, the matter shall be referred in writing to the General Manager of the Employer and shall be discussed by him or her and/or his or her designated representative and the aggrieved employee and/or his or her Union representative within twenty four (24) hours.

(C). If the dispute is not then resolved the Union may submit the dispute to its Executive Committee of the bargaining unit who at its next regular meeting, shall determine whether or not to submit the matter to binding arbitration. Unless the Union serves written notice via Certified Mail on the Employer within thirty (30) days after the completion of the meeting referred to in Paragraph (B), above, of its intent to seek binding arbitration, then in such event, all parties shall be barred from ever submitting such grievance, dispute or disagreement to arbitration. Such written notice shall set forth all issues to be considered. Three local attorneys will be picked for the purpose of arbitration. One by the Employer, one by the Union, and a third impartial attorney.

The decision and award of the arbitration shall be final and binding on all parties. The authority of the arbitrators shall be limited to the interpretation and application of the terms and provisions of the Agreement. They shall have no right, power or authority to amend, change or modify this Agreement. Their expenses shall be borne equally by the parties.

See Agreement By and Between Raceway & Local 47 at 3, J.A. 13. On November 20, 1996, Local 47 notified Raceway of its desire to proceed to arbitration for an interpretation of the express provisions of the collective bargaining agreement related to the base rate of pay. Raceway refused to proceed to arbitration on the grounds that Local 47 had exceed the time...