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Sixth Circuit Encourages En Banc Review of Arbitration Timeliness Disputes

Schipper | 11 December, 2006 10:58

It has been a long-standing judicial precedent that the courts' jurisdiction in determining the arbitrability of arbitration agreements in a collective bargaining agreement is limited to determining whether the dispute is on its face governed by the contract. In other words, courts, not arbitrators, determine if the dispute is to be settled through arbitration. Arbitrators are to make the determination of procedural arbitrability (e.g. whether the parties have complied with procedural requirements under the agreement).

However, in the 6^th Circuit Court of Appeals, this rule has been slightly altered by the Court's ruling in General Drivers, Warehousemen and Helpers, Local Union 89 v. Moog Louisville Warehouse. In Moog a timeliness clause in the agreement contained the language: [I]f the Union fails to notify the Company [...] within 15 calendar days after the Company gives its answer in writing [...] then the Union shall be conclusively presumed to have accepted the Company's answer thereto and said grievance shall not thereafter be arbitrable. The Court found this language to, "clearly indicate that the particular grievance in dispute [was] excluded from arbitration."

Analogous time-bar language recently occurred in the case of Steelworkers v. Saint Gobain Ceramics & Plastics. The Court ruled that, while it felt Moog created a false dichotomy between express and non-express time-bars, it was bound by precedent to find that the grievance was not arbitrable. The Court went on to note that the 6^th Circuit is the only Court of Appeals to rule that time-bars are a question for the court in determining arbitrability and encouraged an en banc review of Moog so as to overturn it.

As a matter of policy, employers should have an express time-bar in their grievance procedures and closely follow the guidelines of the time-bar language.

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