General Drivers, Warehousemen and Helpers, Local Union 89 v. Moog Louisville Warehouse
852 F.2d 871
6th Cir.
1988
Check Treatment

*2 bitration cannot precede judicial determi- and Before KRUPANSKY nation that bargaining the collective WELLFORD, Judges, Circuit agreement does in * fact create such a Judge. GILMORE District duty. Thus, just as an employer has no obligation to arbitrate issues which it has WELLFORD, Judge. Circuit agreed arbitrate, not fortiori, so a it This case interpretation involves of a col- cannot compelled to arbitrate if an lective agreement. The agree- arbitration clause does not bind it at all. grievance ment includes a and arbitration Id., 376 U.S. at 84 S.Ct. at 913. disputes which covers grievances or arising violations. must, Defendant then, The court first decide in this Moog Warehouse, Louisville (“Moog”) Inc. case whether Moog agreed under the discharged plaintiff member union terms of the collective bargaining agree- protested who discharge his through the ment to arbitrate a Moog claim that asserts procedurally grievance defined steps up to not to be examine, arbitrable. We there- stage the final fore, of arbitration. re- that sets out the mutu- arbitration, fused the demand for contend- al understanding parties. perti- ing request made was provisions nent are: and therefore rendered the —Any disputes, complaints Section brought arbitrable. The union action this grievances or arising from alleged viola- compel Moog to arbitrate. The district tions of Agreement this by the Company court in decided a brief memorandum that shall be settled through and determined filing timeliness of re- arbitration following procedure. quest was itself a “to be deter- Step is not settled —If by arbitrator,” mined granted (a) Step procedure, it plaintiff judgment union on the pleadings. shall, (5) within working days, five He cited three in support cases of this writing, reduced to presented to the conclusion, one from Supreme Court, Company. An officer or other official of circuit, one from this and one from a dis- Company (together with such associ- trict court. conclude that it was error may as he towish assist him the ates. to compel arbitration for the reasons here- matter) and a Representative Business or after stated. officer of (together the Union such cited, first case Wiley Sons, associates as he wish to assist him Inc. v. Livingston, 84 S.Ct. matter) shall, (5) within five work- (1964), sets prop- out a days, ing attempt to grievance, settle the osition, frequently cited: and the thereafter, shall within decisions, our “Under whether or (5) not the five working days, give the Union its arbitrate, bound well as answer to said in writing; it arbitrate, what issues must is a (c) is not then —If matter to be determined on satisfactorily settled and if basis contract entered into is otherwise arbitrable under Agree- this the parties.” ment, may be referred to arbitration in 376 U.S. at 84 S.Ct. at 912-13 strict accordance with the (quoting Atkinson v. Sinclair Refining Agreement pertaining Gilmore, *The Honorable Horace W. Michigan, United sitting by designation. Judge States District Eastern District of however, Corning, case otherwise, employer, Dow provided, but requirements for notify the Com- claimed that fails if the Union certified met. No had been writing by registered arbitration pany in bargaining agree- calendar provision within mail *3 gives ment, its answer particularly in the arbitration Company or days after .the (b) Step of itself, at al- that would bar arbitration grievance a writing to in above, then the filed claim was together for an procedure, grievance the to conclusively presumed upon in that relied case.1 be Union shall Company’s answer the accepted apply arbitrability does presumption A of not grievance shall said thereto positive assur said “unless arbitrable. thereafter is sus arbitration clause ance that the the interpretation that covers

ceptible of an arbi- grievance shall be dispute.” Section Communication asserted 4—No mate- an it involves trable unless Workers of or Company of one by the 189, (6th rial violation Co., 191 Cir. 820 F.2d Agree- of this provisions v. 1987) more (quoting Steelworkers shall be alleged violation ment, Co., which U.S. Navigation 363 & Warrior Gulf to the the writing by Union 1353, in designated 1347, 4 574, L.Ed.2d 582-83, 80 S.Ct. such the however, than time no later (1960)). important, More 1409 (b) the Step of appealed is a arbitrability question of “the —whether set hereinbefore procedure a agreement collective-bargaining creates partic the forth. to arbitrate duty for the for undeniably an issue ular case is whether —is in this question The T AT & Technol judicial determination.” a to arbitrate Moog is bound Workers, v. Communications ogies, Inc. conclu expressed is an if there when and 1418, 89 643, 649, 106 S.Ct. failure to union’s that presumption sive added) (citing (1986)(emphasis days be for fifteen pursue that 582-83, 80 at Gulf, 363 U.S. Warrior “there renders yond 1352-53). at S.Ct. doWe arbitrable.” after be] [not of substan language plain hold- discussed the Technologies construe T AT & dispute part Wiley ing of Sons: John the timeliness unless compel arbitration was question” there The “threshold met; reverse thus we has been condition should arbitrator court or an whether the court. district the decision in collec- a decide arbitration a indicate Sons, does not supra, Wiley & cor- a survived tive-bargaining contract Print Philadelphia result. See surviving different bind merger so porate Interna No. 16 v. Union ing Pressmen’s 84 at Id. corporation. U.S.] [376 (3d Cir. 648 Paper tional answered The S.Ct., at 912. rationale adopt the 1981), seems to which that this “no doubt” was there “ Rosenn Judge opinion of dissenting deci- ‘Under our courts. was # 765 Stroehmann Union in Local sions, or not whether Cir.1980). (3d 1092 F.2d 625 Bros. issues arbitrate, as what as well bound deter- arbitrate, to be a matter is it must Union District Int’l Local 12934 of basis on by the Court mined Corp., 459 Corning Dow U.M.W. v. parties.” into entered district Cir.1972), by the cited being con- duty to arbitrate ... aris- matters “procedural court, held submission compulsory origin, tractual agree- bargaining ing out of [collective de- judicial precede cannot arbitrator, to arbitration are for dispute ment] that the collective termination defendant courts, to determine.” in- one provision similar tractual upon the district case relied 1. The third altogeth- case, withdraw purports to Inc., which F.Supp. stant Mining, court, v. Jericol W. U.M. notice. claim filed a late from arbitration er con- not involve (E.D.Ky.1980), did also does fact create such a In Denhardt v. Trailways, 546-547, duty.” S.Ct., Id. at at 912- the court found (citations omitted). ‘positive “no assurance’ in language the collective bargaining agreement that a at 106 S.Ct. at 1419. dispute over the failure to meet Doubts about whether “the arbitration requirements non-arbitrable.” As i[n] [sic] clause ... dispute covers asserted ... indicated, above express there be resolved favor of coverage.” to that effect in agree- union Id. at (quoting War- ment, distinguishing this situation from Gulf, rior & 363 U.S. at 80 S.Ct. at Denhardt as from Chevron Chemical. 1353). clear, however, It seems and with- *4 any doubt, disagree We do not out reasonable with the the arbitra- conclusion Automotive, reached in tion section agreement of the Petroleum & Al- between parties these lied Employees Union, Industries excludes a about Local No. 618 Ford, Inc., which the v. Town give notice, Country union has failed to as (8th required (c), by Step Cir.1983), request of a for arbi- Wiley, tration days within 15 after district company “[u]nder court’s role is given limited to the its answer to a determination of whether the parties brought by obligated are Moog, the union.2 to submit ‘subject under dispute matter’ of a precedent discussed, arbitration,” above since we construe the required “subject cannot be to submit to an matter” arbitra- of the dispute tor in the for decision a instant expressly matter case to be whether or positive the union timely “with filed a assurance” notice of excluded from arbi- tration under language arbitration. The language provision bargaining agreement. and arbitration is a substantive Cham- bers v. particular Corp., exclusion of a Beaunit type (6th 404 F.2d 128 Cir.1968), declared “not unlike the us, ... thereafter situation ... before arbitra- involved a ble.” case in parties which the both agreed to submit to an ques- arbitrator the Oil, In Chemical & Atomic Workers’ tion whether an employee had involuntarily Int’l Local v. Chevron 4-447 resigned or been contrary terminated Co., (5th Chemical Cir.1987), 815 F.2d 338 company rules. employee Plaintiff language pro arbitration clause Beaunit unsuccessfully appealed from the vided, in untimely notification, event of district court’s adverse determination that that the claim would be “considered aban jurisdiction it lacked case, to hear the doned.” Id. at 339 n. 1. That a claim we simply held that it impeach would not would be deemed “abandoned” is a differ the arbitrator’s decision. Chambers does thing saying, ent as does the collec direct, much compel, less a decision in bargaining agreement under considera this case to affirm the district court in our tion, that the union shall be “conclusively view. presumed accepted” to have company’s position “and said shall not It is the language of agreement thereafter be (Emphasis arbitrable.” add itself that must first be examined ed). comparison of the language of court to determine arbitrability and the provision with that in clear of the parties circum Chevron Chemical makes it evident that scribes inquiry. District U.M. W. v. provision the latter was not as clear and Corp., 385 F.2d 949-50 Chris-Craft unambiguous (6th about the par intent of the see also Butler Products v. concerning ties nonarbitrability as Corp., (7th Unistrut 367 F.2d 733 Cir. instant 1966). case.3 Nor do we find Communications Beer, Drink, Water, 2. Section specifi- etc., 3 of the arbitration clause also Loc. U.No. 744 v. Soft cally provides Distributors, required Metropolitan is not (7th 763 F.2d 300 Cir.1985), arbitrate violations of the is similar in effect to Chevron Chemi by any Co., employee. the union or covered supra, similarly distinguishable. cal duty particular griev- ates a arbitrate Workers of 1987) (6th an issue for the courts to F.2d 189 ance-is decide. Cir. U.S. at S.Ct. at 1418. We to be in with this decision. That conflict believe that the contractual type deal of contract case did not clearly rather, particu- this case indicates that the involved; language here dispute lar is excluded from agreed by language to arbitration clause arbitration unless court first finds that “any re controversies submit arbitration the union precedent met the conditions interpretation of the contract.” garding arbitration. Union #370 v. Morri Id. at 193. Local Cir. son-Knudsen stated, For the reasons we reverse the 1986), contrary, in the we cited dissent order of the compelling district court arbi- controlling find not to be here because juncture, tration at this and remand for filing timeliness of at issue. Com proceedings further consistent with this Trucking pare Ass’n v. Broth opinion. California Teamsters, erhood of GILMORE, denied, Judge, dissenting. rt. District ce (1982). 74 L.Ed.2d respectfully I dissent from the Court’s *5 conflicting opinion in the It recognize appears that there are within matter. untimely whether me that the the decisions in circuits of collective bar- issue, coupled requests gaining filed arbitration should be re- here at they arbitrability to the arbitrator whether with of the substantive ferred disposed by appellant’s improper the court. See the issue of dis- of asserted charge in respect supports of to denial the district court’s decision dissent Justice White procedural petition a for certiorari in Steel- that the issue of timeliness was of United jurisdiction of v. Cherokee Electric within the exclusive the arbi- workers America of — -, trator, rejected ap- who Coop., U.S. S.Ct. arbitration because (1988) following summary pellant’s filed. I disposition of the case 829 F.2d 1131 therefore feel the district court should be (11th Cir.1987). affirmed. that, It is hornbook law unless a collec- briefly the au We have discussed bargaining agreement by indicates by by thority cited the district court “the most forceful evidence” an intention inquiry plaintiff key show that the arbitration, to exclude a matter from Technologies, supra, AT T under presumed matter arbitrable. is what earlier Court cases United Steelworkers v. Warrior & Gulf contract, particularly the arbitra 574, 585, Navigation contract, may say of tion section about 1347, 1354, (1960). 4 L.Ed.2d 1409 arbitrability. gen The fact that there is arbitrability presumption applies of “unless agreement, eral under certain circumstanc positive can with assurance that be said es, afford arbitration as a last resort is susceptible clause of the arbitration controlling. The court must first deter interpretation that covers the asserted an provisions dealing mine from dispute.” Communications Workers of grievances particular with subject that are intended to be to arbitra (6th Cir.1987)(quoting some tion. It will not do to characterize Steelworkers, 363 U.S. at 80 S.Ct. thing “procedural” and conclude auto 1352-53).

matically matters are for “procedural” specified Appellant claims that the arbitration arbitrator agree- of collective otherwise the arbitration section itself. procedural put T ment the issue of time- Technologies AT it best excludes plainly stating that whether a contract cre- liness from consideration arbitrator.1 (c)—If is not then satisfac- reads as follows: The section Accordingly, appellant argues pro- the collective bargaining agreement, then cedural timeliness of a is an is- issue of timeliness is exclu- sue to be decided the court. sively jurisdiction within of the arbitra- tor. clearly disagree

I majority’s adopting position. It appears to me For these reasons, I dissent from the majority’s interpretation decision the majority, of and would affirm bargaining agreement is mis- the district court. placed.

Numerous courts have considered the

precise bar, issue at and have universally procedural disputes

concluded involv-

ing are jurisdiction timeliness within the Oil,

the arbitrator. See Chemical and Workers’

Atomic International

Local v. Chevron Compa- Chemical ny, Cir.1987); Local Un- McGHEE, Connie Lee ion 370 the International Union Plaintiff-Appellee, Operating Engineers v. Morrison-Knud- v. Inc., sen Company, 786 F.2d (9th Cir.1986); v. Trailways, Denhardt FOLTZ, Warden, Dale State Prison of Michigan, Southern Individually and in Beer, Drink, Water, et al. Metro- his Capacity, Official Soft Defendant-Appel- politan Distributors, Inc., al., et. lant. *6 300, (7th Cir.1985); Automotive, Petro- No. 87-1612. leum and Allied Industries Employees 618, Local No. v. Town Country United States Appeals, Court of Ford, Inc., F.2d Sixth Circuit. Chauffeurs, Helpers, Teamsters Lo- cal Union No. 765 v. Argued Stroehmann Broth- May 1988. ers Company, (3d Cir.1980). July Decided Court, And this in Chambers v. Beaunit Corporation, 128, (6th

held:

The arbitrator present in the case nev-

er considered plaintiff’s the merits of

claim because he held that

was untimely filed. The

whether a is timely filed is a

procedural question, which, under the Su-

preme holding Court’s Wiley Sons, Inc. v. Livingston, 11 L.Ed.2d is left to the

arbitrator for decision.

Id. at 131.

It is clear to me the substantive

issues of the are arbitrable under torily settled and if the is otherwise days mail within 15 calendar after the Agreement, arbitrable under this be re- gives writing its griev- answer ato ferred to arbitration in strict accordance with ance above, procedure, Agreement pertaining conclusively then the Union pre- shall otherwise, provided, but not how- accepted sumed to Company's answer ever, if. the union fails to notify Compa- thereto said shall not thereafter ny writing by registered or certified United be arbitrable.