Raceway Park, Inc. Toledo Maumee Raceways, Inc. v. Local 47, Service Employees International Union

WISEMAN, District Judge,

dissenting.

I agree that General Drivers, Warehousemen and Helpers, Local Union 89 v. Moog Louisville Warehouse, 852 F.2d 871 (6th Cir.1988) represents a grave departure from Supreme Court doctrine and that Moog should be reconsidered, along with this opinion itself, by a full en banc panel of this Court. Nevertheless, I dissent because I believe that *964the instant ease can be distinguished from Moog and, under Supreme Court and Sixth Circuit precedent, the district court should be reversed.

As the majority notes, the parties in the case at bar met on September 18, September 20, and October 9, 1996 to discuss the effect that Full Card Simulcasting would have on wages paid to Local 47 employees. At the September 20, 1996 meeting, Local 47 produced a written grievance. According to Raceway, Local 47 presented the written grievance due to Local 47’s “apparent concern” that the language of the collective bargaining agreement required a grievance to be filed within forty-eight hours after it had arisen. (Appellees’ Br. at 8.) According to Local 47, Raceway requested that the Union defer filing its grievance. (Appellant’s Br. at 9.) On two separate occasions, Raceway extended the filing deadline, first until September 19, 1996 and then to October 20, 1996. The parties’ last face-to-face meeting occurred on October 9, 1996. On October 17, 1996, Local 47 presented its written grievance to Raceway’s General Manager. Although no grievance meeting was held, Raceway’s general manager orally denied the grievance. Local 47 then demanded arbitration on November 20, 1996. Raceway refused to proceed to arbitration, contending that Local 47 did not notify Raceway of its desire to arbitrate in a timely manner.

The collective bargaining agreement in the ease at bar provides as follows:

ARTICLE V. GRIEVANCE AND ARBITRATION PROCEDURE
5.1 If there are ... any differences or dispute[s] of any kind or character between the Employer and the Union, involving the interpretation or application of the provisions of this Agreement ... such ... difference or dispute shall be handled in the following manner:
(A) [A] representative of the Union shall, within forty eight (48) hours after the grievance has arisen ... discuss the matter with the Mutuel Manager or his designated representative.
(B) If no agreement is reached with[in] twenty four (24) hours after such discussion, the matter shall be referred in writing to the General Manager of the Employer and shall be discussed by him or her and/or his or her designated representative and the aggrieved employee and/or his or her Union representative within twenty four (24) hours.
(C)... Unless the Union serves written notice via Certified Mail on the Employer within thirty (30) days after the completion of the meeting referred to in Paragraph (B), above, of its intent to seek binding arbitration, then in such event, all parties shall be barred from ever submitting such grievance, dispute or disagreement to arbitration.

(Agreement By and Between Raceway & Local 47 at 3, J.A. at 13.)

Raceway insists that, under Article V of the collective bargaining agreement, “in order to have been considered timely filed, [Raceway] should have, and did not, request arbitration on or before November 17,1996.” (Appellees’ Br. at 9.) Although it is unclear exactly how Raceway arrived at a cut-off date of November 17, Raceway apparently contends that when it gave Local 47 until October 20 to file a grievance, it was simply extending the forty-eight hour period set forth in Article V.1(A). The parties met face-to-face for the last time on October 9 and the dispute was not resolved between October 9 and October 20, the deadline for further action. Therefore, by the time Local 47 filed its grievance on October 17, the Union was, in effect, referring the dispute in writing to Raceway’s General Manager as required by Article V.l(B) of the collective bargaining agreement. Id. at 8. While Article V.l(B) requires the Union and Raceway to meet within twenty-four hours after a written grievance is filed, Raceway and Local 47 did not meet. Instead, Raceway’s general manager orally denied the grievance. Therefore, Raceway arrived at the conclusion that under Articles V.l(B) and (C), Local 47 had one twenty-four hour period plus thirty days from the date its written grievance was filed — or until November 17 — to notify Raceway of its desire to proceed to arbitration. Because Local 47 did not notify Raceway of its desire to arbitrate until thirty-four days later on November 20, the Union’s notice was *965untimely. Therefore, Raceway refused to arbitrate the parties’ dispute.

Like Raceway, Local 47 has its own interpretation of the events leading up to Raceway’s refusal to arbitrate. Local 47 argues, in essence, that when Raceway gave the Union until October 20 to file its grievance, Raceway was postponing the date upon which the time periods set forth in Article V.l would begin to run. Thus, when Local 47 filed its grievance on October 17, the grievance had officially “arisen” and, under Article V.1(A), the Union had forty-eight hours — or until October 19 — to discuss the dispute with the Mutuel Manager. If an agreement was not reached within twenty-four hours — or by October 20 — the Union had another twenty-four hours — or until October 21 — to refer the matter in writing to Raceway’s general manager and discuss it with him. Article V.l(B). Finally, under Article V.l(C), Local 47 had thirty days from October 21 — or until November 20 — to notify Raceway of its desire to arbitrate the dispute. Because the Union notified Raceway of its desire to arbitrate by November 20, the Union’s notice was timely under the terms of the collective bargaining agreement and the parties should have proceeded to arbitration.

When a collective bargaining agreement contains an arbitration clause, there is a presumption that disputes, including procedural disagreements, should be submitted to arbitration. See AT & T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). This presumption may be overcome only if “ ‘it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.’” Id. (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)); General Drivers, Local Union No. 984 v. Malone & Hyde, Inc., 23 F.3d 1039, 1043 (6th Cir.), cert. denied, 513 U.S. 1057, 115 S.Ct. 665, 130 L.Ed.2d 599 (1994). In the instant case, Raceway’s interpretation of Article V.l is no more or less plausible than Local 47’s interpretation of Article V.l. Thus, it cannot be said “with positive assurance” that Article V.l is not susceptible of Local 47’s interpretation. Consequently, I would reverse the district court because the parties’ procedural dispute itself should have been submitted to arbitration.

My analysis is not affected by this Court’s decision in General Drivers, Warehousemen and Helpers, Local Union 89 v. Moog Louisville Warehouse, 852 F.2d 871 (6th Cir.1988). The Moog court found that the dispute before it was “expressly and with ‘positive assurance’ excluded from arbitration.” See id. at 874. I cannot say with positive assurance that the procedural dispute between Raceway and Local 47 is excluded from arbitration. Indeed, I believe that the procedural disagreement in the instant case is precisely the type of dispute intended for arbitration. Accordingly, I dissent.