*1 TUTTLE, and GOD Before GEWIN Judges. BOLD, Circuit TUTTLE, Judge: Circuit validity of an involves the This The collective bar- gaining provided de- rendered within cision was grievance.1 hearing of the after the July 3, was made within cision “B. The Board arbitrate is grievance, five given Arbitrators shall notice of intention their de hearing limits meet bitration may “E. The time tual third # agreement.” member of the be modifiеd Article limits set may upon [*] board. be extended forth in the request [*] [*] mu- Ar- *2 682 May hearing. day agree- period the fifteen after the 20 set
about 44
the
rendering
company
the award ment for
contends
The
the
the decision.
bar,
agreement
case
The union contends
As
the
at
the
was invalid.
did
object
rights
company
to
its
not state
awards made after
the
waived
objection
also,
fail-
were
it
void.
as in this
because made
There
agreement
case,
pro-
comply
provide
the
the time limits
ure
with
did
time,
cedures for
the
was issued.
extension
the
after
award
but
requested.
company
none
did
was
As
issued, the union
After the award was
here,
object
did not
union
lack
sought
imple-
unsuccessfully
it
to have
timeliness until after
final award
company
The
refused.
mented.
The
was
The court held that
made.
court
union then filed suit
union
or should have
knew
known
301(a)
to enforce
LMRA
under
of the
§
the award
issued within the
reinstate-
which ordered the
the award
object.
day period
fifteen
but it failed to
discharged employee. Before
a
ment of
circumstances,
these
its
In
silence сon-
for
moved
the union
any objection
on that
stituted
sup-
appellant
judgment.
The brief
basis.
summary judg-
port
motion
of the
among
things
alleged
it
other
ment
argues
company
awards
on the
based
entitled
was
expiration
made after
of the time
rights.
company’s
its
agreement
fixed
are void.
a trial was
the motion and
court denied
plaсes major
reliance
International
arbitrator
jury found that
held. The
Ry. Employees
Ry.,
Bhd. of
v. Norfolk S.
request
of time
an extension
did
Cir.,
(4
1944)
provided for in the were statement, the arbitrator did not exceed by company. se contended the. void as powers. company his To hold that the in was not discussed issue of waiver days protesting could wait 44 without The annotation fol the Norfolk case. to render arbitrator lowing by case, this which is referred then, his decision when adverse brief, its makes clear in award was handed down to the com allow finding proper even that a pany grounds to attack it on these quoted common It at law. express counter run to the federal labor case, sup supra, in in court the Bendix policy encouraging in favor of arbitra holding pres port of its that waiver was extrеmely Moreover, tion. we would be following quoted ent. The court penalize beneficiary loath to of the from Annot. 154 A.L.R. lapse because time over (1944): possible which control. This absolutely essential, especially is true because of the extreme “It seems to be period. rights, preserve it would in order to one’s to shortness While good policy against parties protest doubtless of the continuance emphasize stip- proceedings to sirability in their contract the de arbitration quick action, elapsed. non- we must an Mere ulated question participation pro- swer the here in the man in continued same though ceedings ner as Holliman Mr. had sub be suffiсient.” will concluded, mitted in his award four rather “This is a rea- applied than the three for. It un rule sonable which will be is that such an thinkable award would be at 748. The case.” 218 preme Su- jurisdic trilogy set aside because a loss of Court in the Steelworkers day tion to one later act than the three America v. [United Steelworkers Manufacturing Co.], American 363 U.S. contract.4 mentioned 3. Here the trial court submitted to the to resolve or further consider this issue jury question compa- light disposition whether of our of the ease. ny’s representative actually agreed, hearing, appropriate the conclusion of the to a 4. We think it note the dis- making award, senting opinion by Judge Mr. Holliman’s of his filed God- question position and the whether Mr. Holliman bold. Our is no is- undisputed an extension time. Not- sue of fact here. withstanding disputed testimony juris- challenge on jury points proceed answered “No” to each diction of the arbitrators to a disputed question. Nevertheless, it is final determination of the issues before parties expiration told that Mr. Holli- him at time after postpone three-day man had action on other before pending issuing because he matters the decision adverse to the jury company. replete was about to leave town. The with The record is parties not asked to determine whether Mr. Hol- statements for both proceeded assumption liman bеfore final (though possibly mistaken) agreeing pretrial appel- for extension of time had been overruled hardly (Such amounted, had. absence would lant’s contention that aas compatible rendering compa- a decision with- matter of to a waive of the unnecessary days). ny’s right challenge We think the arbitrator’s
Accordingly, аward, should union sued to enforce the alleging remanded under the collective bar- reversed gaining agreement entry of a between the trial court Management appellant. and the Labor Relations of the in favor binding Act the award was final and company. company answered, (dissent- Judge GODBOLD, Circuit asserting Third Defense that the ing) : arbitrators did not render decision required and that respectfully dissent. three-day period verdict propose to set aside requested.* to or The union issues and employer on factual summary judgment, attaching moved *4 entered thereon the court of agree- copy bargaining of the collective award, refusing enforce an mеnt and affidavit of the chairman judgment. contrary substitute and board arbitrators. The affi- appears majority opinion to embrace davit said the chairman had re- failed theories —that two quested an indefinite extension of time alleging discharge and burden in which to render decision and that un- not proving that it had waived for and union had not and was es- the award timeliness topped agreed thereto. The affidavit no made asserting as a untimeliness from explain other factual assertions to second, defense;1 and, the evidence untimeliness of the award and said noth- as this court shows in the record before ing of waiver. company had a matter law asserting, compаny responded estopped with an an- from waived, or was stating Accept- motion, swer the award. rendition of late genuine estoppel was and issue material fact and that waiver view attaching pre- may expiration of the counter-affidavit of at- prevent the operating torney as which said that extension of from timе scribed majority him, bar, had time to me seems it agreed any extension, wrong had not party the burden and place had raising proving them. As to arbitrators and joined in the award. With ease theory, factual determinations second posture in estoppel this are trial was re- and of waiver the existence to, quired did, deny and motion for aрpropriately this court decided in summary judgment.2 case. may legal Thus, jurisdiction. vided these modi- be- time limits issue is upon request appeal. fied of the third member We conclude fore us * * * Agree- jurisdiction challenge of the Board.” such failure provides ment further that: “The time the ad- after arbitrators amounted, as limits as set forth the Arbitration was entered verse decision may by Article be extended mutual to a waiver. a matter agreement.” The Board of Arbitration majority opinion implicit in the 1. It is their decision within compa- is a defense to untimeliness grievance hearing after ny, questions es- and of waiver else the and the third member of the Board toppel Annot. See would be irrelеvant. request upon made no Defendant ALR modify the time limit and the time limit as set forth Article Arbitration as follows: Defense was The third Bargaining Agreement of the Collective THIRD DEFENSE agreement. was not extended mutual Agreement Bargaining The Collective provides 3. The that: record contains the briefs on the Argu- judgment. meet “The of Arbitration shall motion for Boаrd (5) ably notice of can be said that the union brief within five given colloquy ren- intention to arbitrate refers waiver. Also (3) reveals, their decision from statements both der grievance, pro- counsel, something hearing about waiver had Implicit majority opinion dered whether the was ma- granting terial, justified reasonable, sum- the court erred in and nоt prejudicial.5 mary judgment Third, union. This is First, wrong appealed, cross-appealed specified or several reasons. by complaint, summary judgment mo- union not raise error summary judgment improperly or affidavits denied. any claim of waiver of untimeliness Subsequent to denial of the motion estoppel or to assert the of the award summary judgmеnt the court held a 8(c) Rule Fed.R. untimeliness defense. pretrial conference, pre- and entered a recognizes estop- Civ.P. stating only trial order that the issues to pel affirmatively defensive in na- tried raised those the counter- union, If ture. on motion sum- Mooney’s (a) affidavit counsel: mary judgment, to establish that wanted majority whether a the arbitrators disputed facts there were material joined award, (b) wheth- bring to those issues had to the issues Mooney er an extension of and affidavits. forward its motion file the award. company, having answered Thus case came to trial with nei- filed, required was late ther nor as an issue. negative of waiver and es- the existence *5 Moonеy At trial abandoned the issue any toppel, more than it would re- of whether a of arbitrators negative any quired to its waiver of agreed to the This left other which make the defenses Mooney agreed sole issue whether (for example, not valid failure of award to of The time. court sub- join collusion). award, fraud, spe- mitted form this issue оf two Second, if it be considered that some- interrogatories jury, asking cial to the filing how waiver the late was before requested whether the chairman an ex- summary judg- on the court motion for Mooney tension of and time whether ment, nothing properly presented to special interroga- to it. To both court to that there demonstrаte jury tories the “no.” answered genuine issue fact on that no of material Mooney, judgment trial court subject matter. in unverified Claims reciting special that the two issues had briefs, arguments, and oral do not settle jury submitted to the “since been all oth- of material under Rule issues fact 56.4 gone er issues had out the case.” not is a cosmic abstraction. Waiver say. people from do arises what and charge jury After the judge nothing on There was before objected charge for the union “to the he could whether the which determine grounds; first, whole”6 on a two that waited out with the Mooney was on burden show avoiding hope of when the decision ren- preponderance a of the evidence that it argued summary judgment ready been on requires demonstration evi- motion. But not formulated issues are dence decide on facts to ap- way, and decided this with trial and non-jury trial, Bendix was a heard on pellate speculate courts on stipulated left to what is agreed transcript facts. the court previous bеfore and what is decided. general showed a course of deal- ings holding between the not judgment sought 4. “The shall render- the arbitrator limits of the pleadings, deposi- ed forthwith tions, if tire requests contract and of somewhat casual interrogatories, answer and ad- ready for and assent extensions file, together missions on with the af- concerned, judge, time. No one fidavits, any, if there no show that is jury, appellate judges, or knows whether genuine issue as to material fact and similar facts do or do not exist moving party judg- is entitled to case before us. ment as a matter of law.” Fed.E.Civ. P. charges. 6. Union counsel no Lodge 71, Corp., District v. Bendix IAM (W.D.Mo.1963) 218 a time,” negative estoppel sum- extension of and not “waive the did mary affidavits, did not do no evidence waive; and, second, Having duty produce Mooney so. evidence negative estoppel, jury on trial presented to the waiver and issue was issues, do it did not To this since those were “that matter” [waiver]. Now, having judge a so.9 obtained said: undisputed fact based on the Well, new mаtters all of are finding jury’s was late and the bringing today, you we me time, no extension of there was yesterday pretrial a rather full Mooney opportunity denied the good mo- and I never heard trial, otherwise, jury es- or about whether ment one word prop- toppel. union, did which ques- Court should submit erly or on motion raise waiver opens up waiver, summary judgment and did show new whole area. genuine that either issue pointed out that fact, not raise with this material and did pretrial order and that bound should being of waiver was raised matter specifical- granted, been and at trial have the first time. Counsel ly not ask that waiver be stated then said: jury, gets a issue to submitted as an saying No, am not the Court I ruling finаl its favor on factual I submit an issue on waiver. am should appellate court. at the hands issue saying that as a matter since agree panel All on the members waiver, there has no evidence policy encouraging federal labor arbi- aas matter law these issues tration. But I do not understand am not should submitted. re- way policy change in which cases *6 issue, your questing an Honor. required to tried in the reaffirmed that he appeal. courts and to be reviewed understanding correctly union counsel: judgment of district court should * * [N]ow, *: [THE COURT] affirmed. it, you are not insist- as I understand waiver, upon any question of THE UNION]: FOR [COUNSEL saying right, but we are That as a issues should matter law these SCUDDER, is no M. Louise Petitioner- submitted beсause there ** Appellant, mean, evidence waiver. there was no v.
there is no evidence UNITED STATES America. Respondent-Appellee. buy argu- judge declined to The trial No. 18041. ment of union counsel Appeals United States Court of discharge proof a burden of had failed Sixth Circuit. (which not have event would May 8, 1969. case.)8 and, on an issue compliance The fact technicality procedure no mere rules result of end is demonstrated having duty Mooney, case. above, there was found As noted fault requested or either no extension produce evidence that to. of waiver and tend inferences to rebut estoppel. anyone, ma- whisper See footnotes 8. The record shows estoppel. trial, jority opinion. during about before or