UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, Plaintiff-Appellant, v. SAINT GOBAIN CERAMICS & PLASTICS, INC., Defendant-Appellee, 505 F.3d 417

SUTTON, J., delivered the opinion of the court, in which BOGGS, C.J., GUY, BATCHELDER, DAUGHTREY, GILMAN, GIBBONS, ROGERS, COOK, McKEAGUE, and GRIFFIN, JJ., joined. CLAY, J. (pp. 425-37), delivered a separate dissenting opinion, in which MARTIN, MOORE, and COLE, JJ., joined. OPINION SUTTON, Circuit Judge. Does a dispute over the meaning of a time-limitation bar in a collective bargaining agreement present a threshold question for an arbitrator to resolve or for a judge to resolve? Under John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), and How sam v.

Dean Witter Reynolds, Inc., 537 U.S. 79, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002), “a time limit rule is a matter presumptively for the arbitrator, not for the judge,” Howsam, 537 U.S. at 85, 123 S.Ct. 588. Because neither the terms of this time-limitation provision nor the terms of the collective bargaining agreement rebut that presumption, we hold that the parties’ dispute over the meaning of the provision should be resolved by an arbitrator. I. Saint Gobain Ceramics makes refractory products for a variety of industrial clients.

The United Steelworkers of America represents the Louisville-based workers of the company. The two parties signed a collective bargaining agreement that governed their relationship from February 14, 2002, to February 13, 2005. On March 2, 2004, the company fired two union members for insubordination. The union immediately filed grievances over both discharges. The collective bargaining agreement contains a four-step process for resolving grievances. The union’s grievances proceeded without complication through steps one, two and three.

On March 29, 2004, the company issued a written denial of both step-3 grievances, which the union received on April 8, 2004. The agreement gave the union 30 days, excluding weekends and holidays, to appeal the company’s decision to step 4 — arbitration. If the union failed to appeal within the time limit, the agreement provided that the union forfeited its right to arbitrate the grievance. The union appealed the denials by letter dated May 19, 2004, and the company received the appeals on May 24, 2004.

The company informed the union that the appeals could not proceed to arbitration (step 4) because it had received them after the 30-day deadline. The union filed an action in federal district court under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, to compel arbitration of the two grievances under the collective bargaining agreement. Faced with cross-motions for

summary judgment, the district court (1) held that General Drivers, Warehousemen & Helpers, Local Union 89 v. Moog Louisville Warehouse, 852 F.2d 871 (6th Cir.1988), required a federal judge, not an arbitrator, to determine whether the time-limitation bar applied to the two grievances, (2) concluded that the union failed to satisfy the time requirement and (3) dismissed the two grievances. Bound by Moog, a panel of this court affirmed. United Steelworkers v. Saint Gobain Ceramics & Plastics, Inc., 467 F.3d 540, 545 (6th Cir.2006). The union sought en banc review, and we granted the petition.

See No. 05-6851, 182 L.R.R.M. (BNA) 2907, 2007 U.S.App. LEXIS 12224 (6th Cir. Feb. 7, 2007). II. A. When an employer and a union agree to submit grievances arising from a collective bargaining agreement to arbitration, the “limited” function of the federal courts is “to ascertain! ] whether the party seeking arbitration is making a claim which on its face is governed by the contract.” United Steelworkers v. Am. Mfg. Co., 363 U.S. 564, 567-68, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960).

Whether a collective bargaining agreement commits a dispute to arbitration, the Supreme Court has held, is a question of arbitrability for the courts to decide. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84-85, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 547, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). Whether the parties have complied with the procedural requirements for arbitrating the case, by contrast, is generally a question for the arbitrator to decide. Howsam, 537 U.S. at 85, 123 S.Ct. 588; John Wiley & Sons, 376 U.S. at 556-57, 84 S.Ct. 909.

If doubt exists over whether a dispute falls on one side or the other of this line, the presumption in favor of arbitrability makes the question one for the arbitrator. AT & T Techs., Inc. v. Commc’ns Workers, 475 U.S. 643, 650-51, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986); see Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (recognizing a “liberal federal policy favoring arbitration agreements”). Two Supreme Court cases illustrate this dichotomy and show how it should be applied to debates about the application of a time — limitation provision.

The “threshold question” in John Wiley & Sons, as in today’s case, was “who shall decide” a series of disputes arising under a collective bargaining agreement-an arbitrator or a judge? 376 U.S. at 547, 84 S.Ct. 909. The first dispute dealt with whether a collective bargaining agreement applied to a company (Wiley) that had not signed the agreement but had merged with a company that had signed it. Because this dispute asked whether Wiley was “bound to arbitrate, as well as what issues it must arbitrate,” the Court determined that it was one for judicial determination.

Id. (internal quotation marks omitted). “The duty to arbitrate being of contractual origin,” the Court reasoned, “a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty.” Id. The Court reached a different conclusion about two other disputes presented in the case — (1) whether the union had satisfied steps 1 and 2 of the agreement’s multi-step grievance procedure, which preceded the company’s “duty to arbitrate” in step 3, and (2) whether the union had complied with a time-limitation bar.

Id. at 556 & n. 11, 84 S.Ct. 909. “Notice of any grievance,” the time rule said, “must be filed with the Employer and with the Union Shop Steward within four (4) weeks after its occurrence or latest existence.

The failure by either party to file the grievance within this time limitation shall be construed and be deemed to be an abandonment of the grievance.” Id. (quoting the rule). “Once it is determined ... that the parties are obligated to submit the subject matter of a dispute to arbitration,” as it had been in that case, the Court reasoned that “ ‘procedural’ questions which grow out of the dispute and bear on its final disposition” — such as questions about the application of a time-limitation bar— “should be left to the arbitrator.” Id. at 557, 84 S.Ct. 909. A different

interpretation, the Court feared, “would produce ... delay attendant upon judicial proceedings preliminary to arbitration,” and, what is more, the “[r]eservation of ‘procedural’ issues for the courts” would “not only create the difficult task of separating related issues, but would also produce frequent duplication of effort.” Id. at 558, 84 S.Ct. 909.

In the end, the Court explained, “it best accords with the usual purposes of an arbitration clause and with the policy behind federal labor law to regard procedural disagreements not as separate disputes but as aspects of the dispute which called the grievance procedures into play.” Id. at 558-59, 84 S.Ct. 909. The Court accordingly ordered the company to comply with its duty to arbitrate, leaving it to the arbitrator to decide whether the time-limitation and step-grievance requirements had been satisfied. Nearly 40 years later, the Court addressed a similar issue and followed a similar path.

The question at hand in How-sam was whether a judge or an arbitrator should apply a time-limitation rule of the National Association of Securities Dealers (NASD). No dispute, the rule said, “shall be eligible for submission to arbitration ... where six (6) years have elapsed from the occurrence or event giving rise to the ... dispute.” 537 U.S. at 81, 123 S.Ct. 588 (quoting NASD Code of Arbitration Procedure § 10304 (1984)).

The company opposed arbitration on the ground that application of the time-limitation rule presented a threshold question of arbitrability for a court to decide because a dispute that was more than six years old was “ineligible for arbitration.” Id. at 82, 123 S.Ct. 588. “Linguistically speaking,” the Court began, “one might call any potentially dispos-itive gateway question a ‘question of arbi-trability/ for its answer will determine whether the underlying controversy will proceed to arbitration on the merits.” Id. at 83, 123 S.Ct. 588.

But the “Court’s case law ... makes clear that ... the phrase ‘question of arbitrability’ has a far more limited scope.” Id. It instead refers to “the kind of narrow circumstance where contracting parties would likely have expected a court to have decided the gateway matter, where they are not likely to have thought that they had agreed that an arbitrator would do so, and ... where reference of the gateway dispute to the court avoids the risk of forcing parties to arbitrate a matter that they may well not have agreed to arbitrate.” Id. at 83-84, 123 S.Ct. 588.

Giving content to this distinction, the Court gave two examples of threshold questions of arbitrability that courts should decide — “whether the parties are bound by a given arbitration clause” and “whether an arbitration clause ... applies to a particular type of controversy.” Id. at 84, 123 S.Ct. 588. “[T]he phrase ‘question of arbitrability,’ ” by contrast, is “not applicable in other kinds of general circumstance where parties would likely expect that an arbitrator would decide the gateway matter,” id-namely “ ‘procedural’ questions which grow out of the dispute and bear on its final disposition,” id. (quoting John Wiley & Sons, 376 U.S. at 557, 84 S.Ct. 909), and which “are presumptively not for the judge, but for an arbitrator, to decide,” id.

This latter category, the Court noted, included debates relating to whether the prerequisite steps of a grievance procedure have been followed, id. (citing John Wiley & Sons, 376 U.S. at 557, 84 S.Ct. 909), relating to “waiver, delay, or a like defense to arbitrability,” id. (quoting Moses H.

Cone Memorial Hosp., 460 U.S. at 24-25), 103 S.Ct. 927, and relating more generally to “whether a condition precedent to arbitrability has been fulfilled,” id. at 85, 123 S.Ct. 588 (quoting the Revised Uniform Arbitration Act of 2000 (RUAA) § 6(c) & cmt. 2, 7 U.L.A. 12-13 (Supp.2002)); see also id. (“[Z]n the absence of an agreement to the contrary, issues of substantive arbitrability ... are for a court to decide and issues of procedural arbitrability, ie., whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, are for the arbitrators to decide.”) (quoting RUAA § 6, cmt. 2, 7 U.L.A. at 13) (emphasis added by Howsam); cf.

Int’l Union of Operating Eng’rs, Local 150 v. Flair Builders, Inc., 406 U.S. 487, 492, 92 S.Ct. 1710, 32 L.Ed.2d 248 (1972) (concluding that whether “particular grievances are barred by laches is an arbitrable question”). Consistent with this reasoning, the Court held that “the applicability of the NASD time limit rule is a matter presumptively for the arbitrator, not for the judge.” Howsam, 537 U.S. at 85, 123 S.Ct. 588. And because nothing in the arbitration agreement or the NASD rules rebutted that presumption, the Court held that the application of the time-limitation rule was for the arbitrator to decide.

What emerges from John Wiley & Sons and Howsam is a fairly straightforward rule: A time-limitation provision involves a matter of procedure; it is a “condition precedent” to arbitration, id. (internal quotation marks omitted); and it thus is “presumptively” a matter for an arbitrator to decide, id. In the absence of an agreement to the contrary, in the absence in other words of language in the agreement rebutting the presumption, arbitrators rather than judges should resolve disputes over time-limitation provisions. B.

Under this rule, the time-limitation bar in this collective bargaining agreement should be resolved by the arbitrator. Here is what the provision says: Both parties mutually agree that grievances to be considered must be filed promptly as set forth above after the occurrence thereof. Grievances not appealed within the time limits set forth in Steps 1, 2, 3, or k shall be considered settled on the basis of the decision last made and shall not be eligible for further discussion or appeal.

Grievances not answered by the Company within the time limits specified in any step of this procedure shall be allowed without precedent. JA 20 (emphasis added). The highlighted language plainly amounts to a time-limitation bar, and there is no “statement to the contrary in the arbitration agreement,” Howsam, 537 U.S. at 85, 123 S.Ct. 588, that rebuts the presumption that disputes over the meaning of these types of “condition[s] precedent to arbitrability” should be resolved by the arbitrator, id. (internal quotation marks omitted).

That a party’s failure to satisfy the time-limitation requirement means that the grievance “shall not be eligible for further discussion or appeal,” JA 20 (emphasis added), does not alter this conclusion. The same could have been said in John Wiley & Sons and in Howsam. In John Wiley & Sons, the language was to the same effect, as it said that failure to satisfy the time limitation “shall ... be deemed to be an abandonment of the grievance.” 376 U.S. at 556 n. 11, 84 S.Ct. 909.

In Howsam, the language was not only to the same effect but indeed used the same root word, as it said that failure to satisfy the time limitation made the dispute “[in]eligible for submission to arbitration.” 537 U.S. at 81, 123 S.Ct. 588. Far from rebutting the presumption that this time-limitation provision should be decided by an arbitrator, other provisions of the collective bargaining agreement support it. The introductory sentence to all of the alternative-dispute-resolution provisions in

Article 28 of the collective bargaining agreement, including the time-limitation provision, says: “Should disagreements arise as to the meaning and application of or compliance with the provisions of this agreement, there shall be no cessation of work at any time but the matter shall be settled promptly in the following manner....” JA 19.

This language is quite consistent with the underlying assumption of John Wiley & Sons and Howsam that parties to collective bargaining agreements would anticipate that disputes over conditions precedent to arbitration, like disputes over the merits of a grievance, would be resolved by the arbitrator. Instead of rebutting the presumption that an arbitrator should decide the meaning of a time-limitation provision, in short, this language in the collective bargaining agreement strengthens it.

What gave the district court and the original panel pause about this case was not the meaning of the Supreme Court’s decisions in this area, and it was not the language of the collective bargaining agreement. It was the existence of our 1988 decision in Moog and the question whether it could co-exist with John Wiley & Sons and Howsam. Since Moog, the Supreme Court has decided Howsam, which reinforces the presumption that questions about the meaning of a time-limitation bar are for arbitrators to decide.

And since Moog, two panels of this court, one of them the panel that heard this case, have expressly concluded that Moog was wrongly decided, see Raceway Park, Inc. v. Local 47, Serv. Employees Int’l Union, 167 F.3d 953, 954 (6th Cir.1999) (“Moog represents a grave departure from Supreme Court doctrine mandating that issues of procedural arbitrability be determined by arbitrators not judges.”); United Steelworkers v.

Saint Gobain Ceramics & Plastics, Inc., 467 F.3d 540, 545 (6th Cir.2006) (“[W]e would prefer to take a path not open to us — ignore or overrule Moog.”), while another panel has expressed doubt about Moog’s validity, see Armco Employees Indep. Fed’n v. AK Steel Corp., 252 F.3d 854, 860 n. 2 (6th Cir.2001) (observing that Raceway Park “offers a thoughtful critique of Moog” and noting that, “regardless of what we may think of the Moog exception to Wiley, this panel cannot overturn a published decision of a previous panel”).

A brief description of Moog shows why the criticism of these two prior panels and the skepticism of the third panel are on the mark. After the employer discharged one of its workers, it refused the union’s demand to submit the matter to arbitration under the collective bargaining agreement because the union had not filed the arbitration request within the 15-day period provided in the agreement. “[I]f,” the time-limitation rule said, “the Union fails to notify the Company ... within 15 calendar days after the Company gives its answer in writing to a grievance at Step (

b) of the grievance procedure, ... then the Union shall be conclusively presumed to have accepted the Company’s answer thereto and said grievance shall not thereafter be arbitrable.” 852 F.2d at 873 (emphasis added). Because this “contractual language” in the court’s eyes “clearly indicate^] that the particular grievance in dispute [was] excluded from arbitration,” the court held that it had the duty “first” to decide whether “the union met the conditions precedent to arbitration” — that the application of this timeliness provision in other words presented a question of arbi-trability for the court to decide.

Id. at 875. There is no difference, however, between the clarity of the consequences' of failing to file the grievance on time in Moog on the one hand and John Wiley & Sons and Howsam on the other. All three provisions came to the same clear end: In Moog, the “grievance shall not thereafter be arbitrable,” id. at 873; in the other two cases, the dispute shall not “be eligible for submission to arbitration,” Howsam, 537 U.S. at 81, 123 S.Ct. 588, and “shall ... be deemed to be an abandonment of the grievance,” John Wiley & Sons, 376 U.S. at 556 n. 11, 84 S.Ct. 909.

There thus is no basis for saying that the language at issue in Moog somehow rebuts the presumption that the matter should be resolved by an arbitrator while the language at issue in these other cases does not. Also unavailing is Saint Gobain’s related attempt to distinguish

Article 28 from the clauses at issue in John Wiley & Sons and Howsam.

Article 28, the company says, supplies a “narrow agreement!] to use a multi-step grievance resolution procedure culminating in arbitration if ... there has been a timely appeal to arbitration, and the grievance has not been otherwise settled,” Supp’l Br. at 17-18, while the clauses in the other two cases “involved broad, catch-all agreement^]” to arbitrate all disputes, id. at 17, 21. But neither John Wiley & Sons nor Howsam draws any such distinction, nor do they limit the presumptive arbitrability of time-limitation provisions to situations in which the parties agreed to catch-all arbitration clauses. And even if they did, it is far from clear why the introductory sentence of

Article 28 does not satisfy this proposed requirement: “Should disagreements arise as to the meaning and application of or compliance with the provisions of this agreement, there shall be no cessation of work at any time but the matter shall be settled promptly in the following manner,” which culminates in “arbitration.” JA 19. The problem with Moog is not the existence of some unusual feature of the collective bargaining agreement or of the time-bar provision in that case but that Moog turned on its head the presumption that time-limitation disputes should be resolved by an arbitrator.

Instead of treating a dispute over the meaning of a time-limitation rule as a “condition precedent to arbi-trability” that is “presumptively for the arbitrator, not the judge,” to decide, Howsam, 537 U.S. at 85, 123 S.Ct. 588 (internal quotation marks omitted), Moog does the opposite — treating it as a “condition! ] precedent” to arbitration that the judge must decide, 852 F.2d at 875. Whether Moog should have appreciated the point after John Wiley & Sons makes no difference; the fact remains that Howsam, decided fourteen years after Moog, leaves no doubt about the presumption and its applicability here.

Moog is overruled. There is more common ground between the dissent and our opinion than the dissent suggests. We do not establish a bright-line rule that timeliness questions must inexorably go to the arbitrator. As with all arbitration matters, the matter is one of contract: Just as two parties need not enter an arbitration contract in the first place, they need not enter an arbitration agreement that submits questions of timeliness to arbitration. Parties who wish to steer timeliness disputes to the courts remain free to do so, and nothing in this opinion is to the contrary.

The problem here is what happens when the parties are silent on the point — when they set up an arbitration procedure to resolve their grievances, as was true here, but when they do not indicate a preference for judicial or arbitral resolution of a dispute over the meaning of a timeliness provision in the collective bargaining agreement, as was also true here. In that setting, there is nothing unusual about courts establishing default rules or presumptions about the meaning of such silence for the purposes of the case before them and for the purposes of future cases. That is all we have done.

In embracing a presumption that disputes over a timeliness provision are for an arbitrator to decide, we take some comfort from the following: (1) that is what John Wiley & Sons and Howsam did; (2) that is what the Supreme Court has said we should do, see Howsam, 537 U.S. at 85, 123 S.Ct. 588 (“[I]n the absence of an agreement to the contrary, issues of substantive arbitrability ... are for a court to decide and issues of procedural arbitrability, ie., whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, are for the arbitrators to decide.”) (quoting RUAA § 6, cmt. 2, 7 U.L.A. at 13) (emphasis added by Howsam); (3) that is what makes sense in light of the background general presumption in favor of resolving collective bargaining and other disputes through arbitration, see Moses H.

Cone Mem’l Hosp., 460 U.S. at 24-25, 103 S.Ct. 927 (noting that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration”); AT & T Techs., 475 U.S. at 650, 106 S.Ct. 1415; and (4) that is what every other court of appeals in the country has done, see Local 285, Serv. Employees Int'l Union, AFL-CIO v. Nonotuck Res. Assocs., Inc., 64 F.3d 735, 739-40 (1st Cir.1995); Rochester Tel. Corp. v. Commc’n Workers, 340 F.2d 237, 238-39 (2d Cir.1965); Chauffeurs, Teamsters & Helpers, Local Union No. 765 v. Stroehmann Bros.

Co., 625 F.2d 1092, 1093-94 (3d Cir.1980); Local 1422, Int'l Longshoremen’s Ass’n v. S.C. Stevedores Ass’n, 170 F.3d 407, 410 (4th Cir.1999); Smith Barney Shearson, Inc. v. Boone, 47 F.3d 750, 753-54 (5th Cir.1995); Beer Sales Drivers, Local Union No. 744 v. Metro. Distribs., 763 F.2d 300, 303 (7th Cir.1985); Auto., Petroleum & Allied Indus. Employees Union, Local No. 618 v. Town & Country Ford, Inc., 709 F.2d 509, 511-14 (8th Cir.1983); Toyota of Berkeley v. Auto. Salesmen’s Union, Local 1095, 834 F.2d 751, 754 (9th Cir.1987); Denhardt v.

Trailways, Inc., 767 F.2d 687, 689-90 (10th Cir.1985); Aluminum, Brick & Glass Workers Int'l Union v. AAA Plumbing Pottery Corp., 991 F.2d 1545, 1548 n. 1, 1550 (11th Cir.1993); Wash. Hosp. Ctr. v. Serv. Employees Int’l Union, Local 722, 746 F.2d 1503, 1506-08 (D.C.Cir.1984). Nor do the two cases cited by the dissent—Philadelphia Printing Pressmen’s Union No. 16 v. International Paper Co., 648 F.2d 900 (3d Cir.1981), and United Steelworkers v. Cherokee Electric Cooperative, No. 86-AR-2163-M, 1987 WL 17056, 127 L.R.R.M. (BNA) 2375 (N.D.Ala. Feb.19, 1987), aff'd, 829 F.2d 1131 (11th Cir.1987) — say otherwise.

In Philadelphia Printing, the Third Circuit distinguished between procedural default issues, including “delay” in filing a grievance, and the “total” failure to file a grievance at all. 648 F.2d at 904 n. 7 (internal quotation marks omitted). Disputes arising from the former were for the arbitrator, and disputes arising from the latter were for the courts. Id. Today’s case involves a dispute about “delay” and is therefore for the arbitrator, says Philadelphia Printing.

Cherokee Electric is no more helpful, for there the union conceded that it did not comply with the collective bargaining agreement’s timeliness provision — leaving no dispute to submit to arbitration. See Cherokee Elec., 1987 WL 17056, at *3-4. Under that court’s reasoning as well, today’s dispute would be for the arbitrator. Id. at *4 (“[I]n order to be entitled to present the issue of the timeliness of a grievance to an arbitrator, the issue must have been legitimately raised by the Union so that there is a bona fide procedural timeliness question to be determined by the arbitrator.”). III.

For these reasons, we reverse and remand the case to the district court to enter an order referring the grievance to arbitration.