### The Honorable Ronald E. Longstaff, United States Distric t 1 

### Judge for the Southern District of Iowa. _____________ No. 96-1538

_____________ 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. *

_____________ Submitted: September 13, 1996 Filed: January 6, 1997

_____________ Before WOLLMAN, ROSS, and HANSEN, Circuit Judges.

_____________ 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 Pirell i Armstrong Tire Corporation (Pirelli), brought this action to compel Pirelli to arbitrate and proces s 35 grievances that arose under a collective bargaining agreement (CBA) between the Union an d Pirelli. The Union appeals the distr ict court's grant of partial summary 1

### An appeal may be taken from an order denying a petition t o 2 

### com pel arbitration. 9 U.S.C. § 16(a)(1)(B) (1994). A n interlocutory order denying a petition to compel arbitration, see 9 U.S.C. § 4, is immediately appealable. Ballay v. Legg Maso n Wood Walker, Inc. , 878 F.2d 729, 732 (3d Cir. 1989).
2 judgment, which denie s 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 collectiv e bargaining agreement, which contains a grievance procedure that requires final and binding arb itration of disputes arising under the CBA. The CBA provides that the grievance process progresses in three steps. At ste p
one , the employee presents the grievance to a senior foreman. If no t sat isfactorilysettled at step one, the grievance proceeds to step two , where it is reduced to writing and presented to the Divisiona l Sup erintendent. If a satisfactory settlement is not negotiated at ste p two, the grievant canappeal 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 relation s manager provides a written answer to the grievance within 5 days after t he 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 establis h additi onal steps to facilitate the grievance process. The recor d demonstrates that the parties developed an informal process of placing a gri evance on hold at either the second or third step of the grievanc e process. Those griev ances 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 marke d "ho ld" are no longer viable, while the Union contends that all of th e grievances were on hold, whether marked or not.

The CBA expired on July 15, 1994. At that time, the 35 employe e grievances that are the subject of this suit had accrued and remaine d pending. The parties were unable to negotiate a new agreement, and th e employe es went on strike. On July 16, 1994, Pirelli sold its assets t o 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 obligation s with r espect to the transferred employees' claims under the Employe e Ben efit Plan. Thus, the Union continued to seek resolution of th e griev ances 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 broug ht this action pursuant to § 301 of the Labor Manageme nt Relations Act, 29 U.S.C. § 185 (1994), seeking to compel Pirelli to arbitrate these 35 outstanding grievances. Both parties moved for summary jud gment. The Union sought an order compelling Pirelli to arbitrate the grievances. The district court denied the Union's motion for su mmary judgment, concluding that the CBA's provision that al l obligations shall pass to any subsequent owner m ay preclude the Union from compelling Pirelli to arbitrate subsequent to its sale of the business to Titan.

Pi relli sought summary judgment on several grounds, including tha t the action to compel arbitration is barred by the limitation period s 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) an d in 29 U.S.C. § 160(b) (requiring

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suit to be filed with in 6 months after the cause of action accrues). The district court denied Pirelli's motion for summa ry judgment on all grounds but one. The district court concluded, among other things, that Pirelli
was not e ntitled to summary judgment on the basis of the procedura l limitations provided in the CBA, because that is an issue reserved for the arb itrator, not the court. However, the district court granted partia l summary judgment to Pirelli as to 30 grievances, concluding that this cour t 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 whe ther the parties agreed to place these grievance s 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 summar y judgme nt, denying the Union's petition to compel arbitration of 3 0 grievances. Trial onthe remaining 5 grievances has been delayed pending the outcome of this appeal.

II.

We re view 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 a nd Commercial Workers Union, Local 655 , 39 F.3d 191, 194 (8th Cir. 1994). Summary judgment is appropriate where there is n o genuine issue of material fact and the moving party is entitled to judgmen t as a matter of law. Id. ; Fed. R. Civ. P. 56(c).

The Union contends that the district court erred by denying it s peti tion to compel arbitration of the 30 grievances at issue in thi s appeal

. Specifically, the Union argues that the court improperl y determined a matter reserved for the arbitrator by

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considering whether t he grievances had been placed on hold. We disagree.
There is no dispute that an action t o compel arbitration is governed bythe 6-month limitations period set forth in § 10(b) of the Nationa l Labor Relations Act, 29 U.S.C. § 160(b). John Morrell & Co. v. United Foo d and Commercial Workers Int'l Union, Local 304A , 992 F.2d 205, 207 n.3 (8th Cir.), cert. denied5 10 U.S. 994 (1993); Alcorn v. Burlington N.R.R. , 878 F.2d 11 05, 1108 (8th Cir. 1989). The question of whether a petition t o compel arbitration is timely under the statute of limitations is a n appropriate issue for the court; where the distr ict court has jurisdiction to he ar a claim, it necessarily has jurisdiction to determine th e timeliness of that cl aim. National Iranian Oil Co. v. Mapco Int'l, Inc. , 983 F.2d 485, 491 (3d Cir. 1992) (stating this p rinciple in the context of a petition to compel arbitration under the Arbit ration 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 growout of the dispute and bear on its final disposition should be left to the arbitrator." John Wiley & Sons v. Livingston , 376 U.S. 543, 55 7 (1964).

We are satisfied that the district court did not decide an issu e that is reserved for the arbitrator but properly considered only whether th e
cause of action before it was timely. The district court could no t determine the timeliness of the action before it without first determining when the 6-month stat ute of limitations began to run. This required some reference to the terms of the CBA. A cause of action to compel arbitratio n "accrues when the grievance procedure is exhausted or otherwise breaks dow n to the employee's disadvantage," which is, at the latest, the last dat e when arbitration coul d have been requested. Cook v. Columbian Chem. Co. , 997 F.2d 1239, 1241 (8th Cir. 1993) (internal quotations and alterations omitted).

### 6 To de termine when the cause of action accrued, the district cour t looked to the last da te when arbitration could have been timely requested under the terms of the CBA. Of the grievances at issue in this appeal, th e most recent grievance disposition that was not appealed was a step-three disposition dated June 3, 1994. Because this wa s 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 Jul y 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.

Th e Union contends that summary judgment was inappropriate becaus e the parties agreed to hold these grievances and thus, the cause of action did not a ccrue until August 16, 1994, the date when the Union requeste d Pirell i to continue negotiating all outstanding grievances. As alread y noted, the CBA specifically provided that the parties could agree to modif y the grievance procedure set forth in the CBA. The district court denied summary judgment as to 5 grievances, concluding that the evidence indicate d that the parties may have agreed to hold them be yond 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 o r 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 Unio n presented no evidence to create a genuine issue of material fact concernin g whether these 30 grievances were on hold and thus not barred by the statut e of limitation. The Union merely asserts that all of the grievances were on hold. However, all of the 30

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grieva nces at issue show final step-two or step-three dispositions tha t
were not appealed. The Union's president, Earl Seymour, states in hi s deposi tion testimony that once a step-three disposition is provided, i t must be a ppealed to the arbitration step within 30 days. His affidavi t recite s the grievance process, which includes the option of placin g gri evances on hold by agreement of the parties. However, there is n o assertion that the parties actually agreed to hold the 30 grievances a t issue and there is no evidence of a demand for arbitration. No markings on any of these griev ances indicate that the parties agreed to place them
on hold a fter the date when the grievances were finally denied. Absen t
some evide nce to indicate that the parties agreed to process these 3 0 grievances by a proce dure different from that articulated in the CBA, the
cou rt properly granted summary judgment because the cause of action wa s filed over 6 months b eyond the last date when arbitration could have been requested. The district court did not engage in fact-finding, but properl y assessed the record evidence before it.

The Unio n contends that the district court erred because the issu e 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 arbi trator. 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 cour t determined when the cause of action for this petition to compel arbitratio n accrued. The determi nation 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 th e Union con tends that all of the grievances were on hold pursuant to thi s alternate procedure.

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Refer ence to the terms of the CBA and any potential agreements reache d pursuant to those terms that might prolong the accrual of the cause o f action was unavoidabl e because the record contains no clear demand for or refusal of arbitratio n from which to calculate the limitations period for this cause of action. The district court's disc ussion of the terms of the CBA, conducted in order to determine when this cause of action accrued, di d not transform the statute of limitations inquiry into one of procedura l arbitrability.

Our review of the record indicates that there is no evidence t o 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 arbitr ation could have been timely requested is beyond the 6-mo nth statutory limitations period. Accordingly, the district cour t properly granted partial summary judgment in favor of Pirelli.

III.

For t he foregoing reasons, we affirm the judgment of the distric t court.

A true copy.

Attest:

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