The Honorable Ronald E. Longstaff, United States District

1

Judge for the Southern District of Iowa. 

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No. 96-1538

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The United Rubber, Cork, *

Linoleum, and Plastic Workers *

of America, AFL-CIO, CLU, *

Local 164, *

 *

Plaintiff-Appellant, * Appeal from the United States

* District Court for the

v. * Southern District of Iowa.

*

Pirelli Armstrong Tire *

Corporation, *

*

Defendant-Appellee. *

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 Submitted: September 13, 1996

 Filed: January 6, 1997 

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Before WOLLMAN, ROSS, and HANSEN, Circuit Judges.

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HANSEN, Circuit Judge.

The United Rubber, Cork, Linoleum and Plastic Workers of America,

AFL-CIO, CLU, Local 164 (the Union), the collective bargaining agent for

the workers of Pirelli Armstrong Tire Corporation (Pirelli), brought this

action to compel Pirelli to arbitrate and process 35 grievances that arose

under a collective bargaining agreement (CBA) between the Union and

Pirelli. The Union appeals the district court's grant of partial summary 1
 An appeal may be taken from an order denying a petition to

2

compel arbitration. 9 U.S.C. § 16(a)(1)(B) (1994). An

interlocutory order denying a petition to compel arbitration, see

9 U.S.C. § 4, is immediately appealable. Ballay v. Legg Mason

Wood Walker, Inc., 878 F.2d 729, 732 (3d Cir. 1989). 

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judgment, which denies the petition to compel arbitration for 30 of those

grievances. We affirm. 2

I.

On July 15, 1991, the Union and Pirelli entered into a collective

bargaining agreement, which contains a grievance procedure that requires

final and binding arbitration of disputes arising under the CBA. The CBA

provides that the grievance process progresses in three steps. At step

one, the employee presents the grievance to a senior foreman. If not

satisfactorily settled at step one, the grievance proceeds to step two,

where it is reduced to writing and presented to the Divisional

Superintendent. If a satisfactory settlement is not negotiated at step

two, the grievant can appeal to step three within 10 days of the step two

disposition. At step three, the grievance is advanced by the local union

negotiating committee, which meets with the employee relations manager.

The employee relations manager provides a written answer to the grievance

within 5 days after the meeting. From the date of the step-three answer,

the Union has 30 days to invoke arbitration. 

The CBA also provides that the parties may agree to establish

additional steps to facilitate the grievance process. The record

demonstrates that the parties developed an informal process of placing a

grievance on hold at either the second or third step of the grievance

process. Those grievances placed on hold remained viable in spite of the

time limits provided in the CBA, but the parties disagree over whether the

face of the grievance would necessarily bear a notation that it was being

held in order for the
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grievance to remain viable. Pirelli asserts that the grievances not marked

"hold" are no longer viable, while the Union contends that all of the

grievances were on hold, whether marked or not.

The CBA expired on July 15, 1994. At that time, the 35 employee

grievances that are the subject of this suit had accrued and remained

pending. The parties were unable to negotiate a new agreement, and the

employees went on strike. On July 16, 1994, Pirelli sold its assets to

Titan Tire Corporation (Titan). The expired CBA provided that Pirelli's

obligations under it would pass to any subsequent owner, and the purchase

agreement specifically provided that Titan would assume all obligations

with respect to the transferred employees' claims under the Employee

Benefit Plan. Thus, the Union continued to seek resolution of the

grievances that had arisen under the now-expired CBA. In August 1994,

Titan negotiated a return-to-work agreement with the employees, but the 35

grievances that had arisen prior to the expiration of the CBA were never

settled or arbitrated. 

On January 13, 1995, the Union brought this action pursuant to § 301

of the Labor Management Relations Act, 29 U.S.C. § 185 (1994), seeking to

compel Pirelli to arbitrate these 35 outstanding grievances. Both parties

moved for summary judgment. The Union sought an order compelling Pirelli

to arbitrate the grievances. The district court denied the Union's motion

for summary judgment, concluding that the CBA's provision that all

obligations shall pass to any subsequent owner may preclude the Union from

compelling Pirelli to arbitrate subsequent to its sale of the business to

Titan. 

Pirelli sought summary judgment on several grounds, including that

the action to compel arbitration is barred by the limitation periods

provided in both the expired CBA (requiring the Union to appeal a step-two

disposition within 10 days and a step-three disposition within 30 days) and

in 29 U.S.C. § 160(b) (requiring
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suit to be filed within 6 months after the cause of action accrues). The

district court denied Pirelli's motion for summary judgment on all grounds

but one. The district court concluded, among other things, that Pirelli

was not entitled to summary judgment on the basis of the procedural

limitations provided in the CBA, because that is an issue reserved for the

arbitrator, not the court. However, the district court granted partial

summary judgment to Pirelli as to 30 grievances, concluding that this court

action to compel arbitration of those 30 grievances is barred by the 6-

month statute of limitations period provided in 29 U.S.C. § 160(b). The

court denied summary judgment on the remaining 5 grievances, finding that

a question of material fact exists regarding whether the parties agreed to

place these grievances on hold because of a specific notation on the face

of the grievances, which may have tolled the statute of limitations. 

The Union appeals the district court's grant of partial summary

judgment, denying the Union's petition to compel arbitration of 30

grievances. Trial on the remaining 5 grievances has been delayed pending

the outcome of this appeal. 

II.

We review the district court's grant of summary judgment de novo,

applying the same standards as the district court. Beverly Hills Foodland,

Inc. v. United Food and Commercial Workers Union, Local 655, 39 F.3d 191,

194 (8th Cir. 1994). Summary judgment is appropriate where there is no

genuine issue of material fact and the moving party is entitled to judgment

as a matter of law. Id.; Fed. R. Civ. P. 56(c). 

The Union contends that the district court erred by denying its

petition to compel arbitration of the 30 grievances at issue in this

appeal. Specifically, the Union argues that the court improperly

determined a matter reserved for the arbitrator by
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considering whether the grievances had been placed on hold. We disagree.

There is no dispute that an action to compel arbitration is governed

by the 6-month limitations period set forth in § 10(b) of the National

Labor Relations Act, 29 U.S.C. § 160(b). John Morrell & Co. v. United Food

and Commercial Workers Int'l Union, Local 304A, 992 F.2d 205, 207 n.3 (8th

Cir.), cert. denied 510 U.S. 994 (1993); Alcorn v. Burlington N.R.R., 878

F.2d 1105, 1108 (8th Cir. 1989). The question of whether a petition to

compel arbitration is timely under the statute of limitations is an

appropriate issue for the court; where the district court has jurisdiction

to hear a claim, it necessarily has jurisdiction to determine the

timeliness of that claim. National Iranian Oil Co. v. Mapco Int'l, Inc.,

983 F.2d 485, 491 (3d Cir. 1992) (stating this principle in the context of

a petition to compel arbitration under the Arbitration Act, 9 U.S.C. § 4).

After the court determines "that the parties are obligated to submit the

subject matter of a dispute to arbitration, `procedural' questions which

grow out of the dispute and bear on its final disposition should be left

to the arbitrator." John Wiley & Sons v. Livingston, 376 U.S. 543, 557

(1964). 

We are satisfied that the district court did not decide an issue that

is reserved for the arbitrator but properly considered only whether the

cause of action before it was timely. The district court could not

determine the timeliness of the action before it without first determining

when the 6-month statute of limitations began to run. This required some

reference to the terms of the CBA. A cause of action to compel arbitration

"accrues when the grievance procedure is exhausted or otherwise breaks down

to the employee's disadvantage," which is, at the latest, the last date

when arbitration could have been requested. Cook v. Columbian Chem. Co.,

997 F.2d 1239, 1241 (8th Cir. 1993) (internal quotations and alterations

omitted). 
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To determine when the cause of action accrued, the district court

looked to the last date when arbitration could have been timely requested

under the terms of the CBA. Of the grievances at issue in this appeal, the

most recent grievance disposition that was not appealed was a step-three

disposition dated June 3, 1994. Because this was a step-three disposition

for which the CBA provided 30 days in which to appeal to the arbitration

step, a cause of action to compel arbitration accrued 30 days later on July

3, 1994 -- the last date when arbitration could have been timely requested.

The present action was filed on January 13, 1995, more than 6 months after

the cause of action accrued. 

The Union contends that summary judgment was inappropriate because

the parties agreed to hold these grievances and thus, the cause of action

did not accrue until August 16, 1994, the date when the Union requested

Pirelli to continue negotiating all outstanding grievances. As already

noted, the CBA specifically provided that the parties could agree to modify

the grievance procedure set forth in the CBA. The district court denied

summary judgment as to 5 grievances, concluding that the evidence indicated

that the parties may have agreed to hold them beyond the expiration of the

time for appeal specifically provided in the CBA, which in turn may have

prevented the accrual of this cause of action. Those 5 grievances bore a

specific notation of "hold," dated subsequent to the final step-two or

step-three disposition noted on the grievance. As to the 30 grievances at

issue in this appeal, the district court concluded that the Union "failed

to create a question of material fact regarding whether they were placed

on hold by the parties." (Appellant's Addend. at 16.) 

We agree with the district court's assessment that the Union

presented no evidence to create a genuine issue of material fact concerning

whether these 30 grievances were on hold and thus not barred by the statute

of limitation. The Union merely asserts that all of the grievances were

on hold. However, all of the 30
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grievances at issue show final step-two or step-three dispositions that

were not appealed. The Union's president, Earl Seymour, states in his

deposition testimony that once a step-three disposition is provided, it

must be appealed to the arbitration step within 30 days. His affidavit

recites the grievance process, which includes the option of placing

grievances on hold by agreement of the parties. However, there is no

assertion that the parties actually agreed to hold the 30 grievances at

issue and there is no evidence of a demand for arbitration. No markings

on any of these grievances indicate that the parties agreed to place them

on hold after the date when the grievances were finally denied. Absent

some evidence to indicate that the parties agreed to process these 30

grievances by a procedure different from that articulated in the CBA, the

court properly granted summary judgment because the cause of action was

filed over 6 months beyond the last date when arbitration could have been

requested. The district court did not engage in fact-finding, but properly

assessed the record evidence before it. 

The Union contends that the district court erred because the issue

of whether the parties agreed to hold the grievances beyond the CBA's

express procedural limitations is a matter of procedural arbitrability,

reserved for the arbitrator. To the contrary, the district court did not

decide whether the grievances themselves are time-barred under the terms

of the agreement, which we agree is an issue of procedural arbitrability

reserved for the arbitrator. See Wiley, 376 U.S. at 557-59; Auto.,

Petroleum & Allied Indus. Employees Union, Local No. 618 v. Town & Country

Ford, Inc., 709 F.2d 509, 514 (8th Cir. 1983). Instead, the court

determined when the cause of action for this petition to compel arbitration

accrued. The determination was complicated in this case by the fact that

the CBA specifically allowed the parties to create a procedure where they

could agree to place a grievance on hold, suspending its viability, and the

Union contends that all of the grievances were on hold pursuant to this

alternate procedure. 
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Reference to the terms of the CBA and any potential agreements reached

pursuant to those terms that might prolong the accrual of the cause of

action was unavoidable because the record contains no clear demand for or

refusal of arbitration from which to calculate the limitations period for

this cause of action. The district court's discussion of the terms of the

CBA, conducted in order to determine when this cause of action accrued, did

not transform the statute of limitations inquiry into one of procedural

arbitrability. 

Our review of the record indicates that there is no evidence to

create a question of fact concerning whether the parties agreed to place

the 30 grievances at issue on hold. From the face of the grievances, the

last date when arbitration could have been timely requested is beyond the

6-month statutory limitations period. Accordingly, the district court

properly granted partial summary judgment in favor of Pirelli.

III.

For the foregoing reasons, we affirm the judgment of the district

court. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.