United States District Court, N.D. Illinois, Eastern Division
July 8, 2004.
UNITED STEEL WORKERS OF AMERICA, AFL-CIO and LOCAL UNION 7999 UNITED STEEL WORKERS OF AMERICA, Plaintiffs,
SLOAN VALVE COMPANY, Defendant.
The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
Since late December 2003, Defendant Sloan Valve Company ("Sloan
Valve") has refused to proceed with the arbitration of a
grievance initiated by Plaintiff Local Union 7999 United Steel
Workers of American ("Union"), concerning the discharge of former
Sloan Valve employee and union member Frances Poisson. In
response, Plaintiffs filed this suit, pursuant to § 301 of the
Labor Management Relations Act, 29 U.S.C. § 185, asking for an
order compelling Sloan Valve to proceed with the arbitration.
Both parties now claim that summary judgment in their favor is
appropriate. Summary judgment is proper when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 322-323 (1986). In determining whether any genuine issue of
material fact exists, I must construe all facts in the light most
favorable to the non-moving party and draw all reasonable and
justifiable inferences in its favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). A genuine issue of fact exists only when, based on the record as a whole, a reasonable
jury could find for the nonmovant. Pipitone v. United States,
180 F.3d 859, 861 (7th Cir. 1999).
Before delving further into the parties' motions, I must first
address Plaintiffs' failure to comply with Local Rule 56.1(b).
Both Plaintiffs and Sloan Valve filed independent Statements of
Uncontested Facts. Plaintiffs, however, failed to file a response
to Sloan Valve's Statement, in violation of Local
Rule 56.1(b)(3)(A). As a result, the entirety of Sloan Valve's
Statement of Uncontested Facts is deemed admitted, pursuant to
Local Rule 56.1(b)(3)(B).*fn1 See Ammons v. Aramark Uniform
Serv., Inc., No. 03 C 1036, U.S. 2004 App. LEXIS 10061 at *16
(7th Cir. May 21, 2004) (holding "a district court is
entitled to expect strict compliance with Rule 56.1"); Echols v.
Skipper, No. 00 C 2244, 2001 U.S. Dist. LEXIS 12411 at *8 (N.D.
Ill. Aug. 15, 2001) (plaintiff failed to submit a statement of
contested facts so the court found "no genuine issue as to the
facts set forth by the defendants"). The facts stated by Sloan
Valve are supported by more than enough evidence in the record to make their admission
proper. Curran v. Kwon, 153 F.3d 481, 485-486 (7th Cir.
1998). However, in the interest of fundamental fairness, I did
review the Plaintiffs' Statement and did not find any facts that
conflicted with or were refuted by the facts in Sloan Valve's
On November 17, 2003, Poisson, the Union, and Sloan Valve met
to conduct a discharge hearing after which, on November 20, 2003,
Sloan Valve issued a letter affirming Poisson's dismissal. This
hearing constituted Step 3 of the parties' four step grievance
process, as specified in the parties' Collective Bargaining
Agreement ("CBA"). Step 3 is the last step in that process before
the Union can appeal to arbitration.*fn2 After receiving
Sloan Valve's final letter affirming Poisson's dismissal, the
Union had the option to proceed to Step 4 and appeal for
arbitration "by giving written notice . . . to [Sloan Valve]
within thirty days after the date of [Sloan Valve's] final answer
in Step 3." (CBA Article XVI, Section 2). Thus, the Union had
until December 20, 2003 to provide Sloan Valve with notice of
appeal. The Union, however, did not do so until January 30, 2004,
well after the time period for appeal had expired. According to
Step 4, "if such notice is not given as provided, the grievance
is not subject to arbitration."
Because of this exclusionary clause, Sloan Valve argues that
untimely appeals are not within scope of the CBA's arbitration
clause and, therefore, it has no duty to proceed with arbitration
of Poisson's grievance. Plaintiffs, on the other hand, argue that
timeliness is an issue of procedure, not scope, to be dealt with in arbitration. When
there is a question of scope, courts may properly decide whether
the subject matter of a dispute falls within the parties'
arbitration clause. John Wiley & Sons v. Livingston, Inc,
376 U.S. 543, 546-47 (1964). Once the court determines that the
subject matter falls within the arbitration agreement, any
remaining procedural issues, such as whether the parties
fulfilled their respective obligations under the agreement,
should be left to the arbitrator. Id. at 557-58. Doubts about
whether "the arbitration clause . . . covers the asserted dispute
. . . should be resolved in favor of coverage." AT&T
Technologies, Inc. v. Communications Workers, 475 U.S. 643, 650
To determine if judicial review is appropriate, I must decide
whether untimeliness, in the context of this case, is a
procedural or substantive issue. Untimeliness is usually
categorized as a procedural issue. See Niro v. Fearn Int'l,
Inc., 827 F.2d 173 (7th Cir. 1987); Chicago Typographical
Union No. 16 v. Chicago Sun Times, Inc., 860 F.2d 1420 (7th
Cir. 1988). However, in most cases where untimeliness has been
deemed procedural, it has not been expressly called out by the
parties' arbitration agreements. The Sixth Circuit was confronted
with a similar exclusionary language in General Drivers, etc.
Local Union 89 v. Moog Louisville Warehouse, Inc., 852 F.2d 871,
873 (6th Cir. 1988). In Moog, the parties' CBA, much like
the one before me now, stated that "if the union fails to notify
the Company . . . within 15 calendar days after the Company gives
its answer in writing . . . the grievance shall not thereafter be
arbitrable." Id. at 873. The Sixth Circuit found that this
language limited the scope of the arbitration clause to those
claims which were timely filed and created a substantive issue
for the court's review. Id. While the Seventh Circuit has not
addressed this exact issue, it has recognized that "the parties
may expressly exclude specific issues from arbitration in the
collective bargaining agreement." Local 232, Allied Industrial Workers v. Briggs & Stratton
Corp., 837 F.2d 782, 786 (7th Cir. 1988).
Here, the CBA includes an express provision stating that if
proper timely notice is not given "the grievance is not subject
to arbitration." It is clear to me that this clause was meant to
exclude untimely noticed appeals from Sloan Valve's duty to
arbitrate grievances and is, therefore, substantive. I see no
other reasonable interpretation. Because this clause is directed
at the scope of the arbitration clause, it falls squarely within
the realm of judicial review. As with any other contract, the
parties are bound by the terms of their negotiated agreement.
Here the parties' agreement included express requirements for
proper, timely notice to which the Plaintiffs did not conform. It
also included express consequences for failure to provide timely
notice. Since the Plaintiffs failed to provide the requisite
timely notice of appeal, I find that Sloan Valve is not obligated
by the parties' CBA to proceed to arbitration.
For the reasons stated herein, Plaintiffs' Motion for Summary
Judgment and for Attorneys' Fees and Costs is DENIED. Defendant's
Motion for Summary Judgment is GRANTED.