United Steel, Paper v. CONTINENTAL TIRE NORTH AMERICA, No. 08-1778  INCORPORATED

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STEEL, PAPER AND
FORESTRY, RUBBER,
MANUFACTURING, ENERGY, ALLIED-
INDUSTRIAL & SERVICE WORKERS
INTERNATIONAL UNION AFL-
CIO/CLC; LOCAL NO. 850L,
Plaintiffs-Appellees,
v.
CONTINENTAL TIRE NORTH AMERICA, No. 08-1778  INCORPORATED; CTNA HEALTH
PLAN, Health Plan, Pension Plan
for Hourly-Paid Employees of
Continental General Tire, Inc. and
Certain Affiliated Companies;
PENSION PLAN FOR HOURLY-PAID
EMPLOYEES OF CONTINENTAL
GENERAL TIRE, INCORPORATED AND
CERTAIN AFFILIATED COMPANIES,
Defendants-Appellants. 
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
David C. Keesler, Magistrate Judge.
(3:07-cv-00074-DCK)
Argued: May 13, 2009
Decided: June 9, 2009
Before WILKINSON, MICHAEL, and MOTZ,
Circuit Judges.

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Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Michael and Judge Motz joined.
COUNSEL
ARGUED: Brian J. Murray, JONES DAY, Chicago, Illinois,
for Appellants. Joseph P. Stuligross, UNITED STEEL-
WORKERS OF AMERICA, Pittsburgh, Pennsylvania, for
Appellees. ON BRIEF: Brian West Easley, Brent D. Knight,
JONES DAY, Chicago, Illinois, for Appellants. Amanda
Green, Assistant General Counsel, United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Allied-Industrial
and Service Workers International Union, AFL-CIO/CLC,
Pittsburgh, Pennsylvania; Michael G. Okun, PATTERSON
HARKAVY, LLP, Raleigh, North Carolina, for Appellees.
OPINION
WILKINSON, Circuit Judge:
In this case, a union is seeking to compel arbitration of
grievances it filed against an employer. The district court held
that the grievances were arbitrable, and we affirm. The suit
was timely because the statute of limitations period does not
begin until a party unequivocally refuses to arbitrate. In addi-
tion, despite the fact that the grievances were filed after the
collective bargaining agreements had expired, it is clear from
the contracts themselves that the parties intended to arbitrate
their differences.
I.
This suit involves a dispute over pension and health insur-
ance benefits. The defendants are Continental Tire North
America, Inc. (a tire manufacturer and distributor), CTNA
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Health Plan, the Pension Plan for Hourly-Paid Employees of
Continental General Tire, Inc., and certain affiliated compa-
nies (collectively, "CTNA"). The plaintiffs are a group of
unions: the United Steel, Paper and Forestry, Rubber, Manu-
facturing, Energy, Allied-Industrial and Service Workers
International Union, AFL-CIO/CLC, and its Local Union No.
850L (collectively, the "Union"). The Union was the repre-
sentative for bargaining unit employees at CTNA’s tire-
making facility in Charlotte, North Carolina (the "Charlotte
Plant").
On September 20, 1999, CTNA and the Union entered into
two cross-referencing agreements that are at the center of this
case: a collective bargaining agreement governing terms and
conditions of employment (the "CBA") and an agreement
governing pension and insurance benefits (the "P&I Agree-
ment"). In addition to providing substantive terms and condi-
tions of employment, the CBA outlines a broadly applicable
grievance procedure. It states:
The parties mutually agree that the procedure set
forth herein is the proper vehicle for the settlement
of any and all disputes arising between the parties
during the life of said Agreement, unless specifically
excluded by the parties, shall be submitted and set-
tled in accordance with the following procedure
without resorting to any other action.
CBA, Art. IV, ¶ 401. It then delineates a multi-step grievance
procedure that culminates with an option for arbitration. It
provides that "[t]he decision of the arbitrator shall be final and
binding upon both parties." CBA, Art. IV, ¶ 419.
The P&I Agreement provides the substantive pension and
health insurance benefits that are the subject of the Union’s
grievances, and it incorporates the CBA’s grievance proce-
dure in three separate places. It provides generally that "[t]his
agreement shall be subject to the terms and provisions of the
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grievance procedure as outlined in Article IV of the Collec-
tive Bargaining Agreement in accordance with the applicable
laws." P&I Agreement, Art. IV, ¶ 8.
In addition, with respect to pension benefits, it provides
specifically that the CBA grievance procedure shall be used
to resolve disputes over certain issues, including "the amount
of pension or other benefit to which an Employee or Pen-
sioner is entitled under this Agreement." Id. at Art. I, § VI, ¶
1. With respect to health insurance benefits, it provides spe-
cifically that "[i]n the event any dispute shall arise based on
the question whether the Company has provided the insurance
benefits hereinabove described, such dispute shall be subject
to the grievance procedure of the Labor Agreement including
arbitration." Id. at Art. III, § III, ¶ F. Following each of these
two specific provisions providing for arbitration, the P&I
Agreement also states: "Termination of the Labor Agreement
shall not invalidate the use of its grievance procedure for the
purposes of this paragraph." Id. at Art. I, § VI, ¶ 1; id. at Art.
III, § III, ¶ F.
With respect to duration and termination more generally,
the P&I Agreement explicitly states that it and the CBA
expire on April 30, 2006. P&I Agreement, Art. IV, ¶ 5. It also
provides, however, that "[n]otwithstanding the termination of
the Agreement for Pension, Service Award, Insurance and
Supplemental Workers’ Compensation Benefits, the benefits
described herein shall be provided for ninety (90) days fol-
lowing termination." Id.
Before the agreements were set to expire on April 30, 2006,
CTNA notified the Union that it needed to reduce costs at the
Charlotte Plant and attempted to renegotiate the agreements in
order to achieve the necessary reductions. These negotiations
were not successful, and so CTNA announced that it would
have to cut production and lay off employees. Between March
and July 2006, CTNA laid off over 900 bargaining unit
employees from the Charlotte Plant. The CBA and the P&I
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Agreement expired on April 30, 2006, in the midst of these
layoffs. On May 1, 2006, CTNA unilaterally implemented the
terms of its Last, Best, and Final Proposal (the "Implemented
Terms"), which were later upheld by the NLRB. In contrast
to the CBA and the P&I Agreement, the Implemented Terms
did not provide for arbitration.
Based on the large-scale layoffs, on August 9, 2006, the
Union filed two grievances with CTNA. In Grievance No.
2006-580-25, the Union alleged that CTNA violated Article
III, § III, ¶ H of the P&I Agreement because it did not provide
the 24 months of extended health insurance benefits that it
was required to under that section. In Grievance No. 2006-
580-26, the Union alleged that CTNA violated Article I, § IX,
¶ 4(a) and 5(a) of the P&I Agreement, which provided for
accelerated distributions of pensions, because it did not pro-
vide the "contractually required amount of pension to which
employee Arnold Hoffstetler and other employees are entitled
as a result of the permanent discontinuance of tire making
operations."
After CTNA refused to arbitrate the grievances, on Febru-
ary 14, 2007, the Union filed this suit under § 301 of the
Labor Management Relations Act (the "LMRA"), 29 U.S.C.
§ 185. The Union sought to compel arbitration under the CBA
and the P&I Agreement, and, in the alternative, claimed that
CTNA breached the P&I Agreement in violation of § 301 of
the LMRA. Both parties filed motions for summary judgment
on the count to compel arbitration. The district court granted
the Union’s motion and dismissed its remaining claims with-
out prejudice. CTNA appeals.
II.
CTNA first argues that this suit is time barred. It contends
that, as many courts have held, the six-month statute of limita-
tions from § 10(b) of the National Labor Relations Act, 29
U.S.C. § 160(b), governs this suit to compel arbitration under
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§ 301 of the LMRA, 29 U.S.C. § 185. See, e.g., Aluminum,
Brick and Glassworkers International Union Local 674 v.
A.P. Green Refractories, Inc., 895 F.2d 1053, 1054-55 (5th
Cir. 1990) (collecting cases). Applying this six-month statute
of limitations, it asserts that the limitations period began on
August 9, 2006, when Rick Schultheiss, CTNA’s Human
Resources Manager for the Charlotte Plant, orally informed
the Union that CTNA would not arbitrate, and thus the six
months had expired when the Union filed this suit on Febru-
ary 14, 2007 (six months and five days later). Assuming that
the six-month statute of limitations applies, we reject this
argument because Schultheiss’s statement did not commence
the statute of limitations.
As we have previously explained, when a union demands
arbitration and the employer expressly refuses, "a cause of
action to compel arbitration accrues, and the limitations
period begins, with the refusal to arbitrate." Local 1422, Inter-
national Longshoremen’s Association v. South Carolina Ste-
vedores Association, 170 F.3d 407, 409 (4th Cir. 1999). There
is a question as to whether a formal demand for arbitration is
always necessary to begin the limitations period. See Ware-
house, Production, Maintenance and Miscellaneous Employ-
ees, Furniture, Piano and Express Drivers and Helpers Local
Union No. 661 v. Zenith Logistics, Inc., 550 F.3d 589, 593
(6th Cir. 2008) (holding that a formal demand is not required).
We need not decide that question, however, because Schul-
theiss’s statement does not satisfy the well-settled require-
ment that a party must unequivocally refuse to arbitrate before
the limitations period begins. See, e.g., Zenith Logistics, 550
F.3d at 592 ("The six-month period begins to run ‘when the
employer takes an unequivocal position that it will not arbi-
trate.’" (quoting McCreedy v. Local Union No. 971, UAW,
809 F.2d 1232, 1237 (6th Cir. 1987))); Local Joint Executive
Bd. of Las Vegas, Bartenders Union Local 165, Culinary
Workers’ Local Union No. 226 v. Exber, Inc., 994 F.2d 674,
676 (9th Cir. 1993); A.P. Green Refractories, 895 F.2d at
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1055; Niro v. Fearn Int’l, Inc., 827 F.2d 173, 177-78 (7th Cir.
1987).
According to Schultheiss’s sparse affidavit, on August 9,
2006, upon receiving the Union’s grievances, he informed the
Union representative "that it was CTNA’s position that the
grievances were not arbitrable under the current grievance
procedure" and that he would "give the grievances to Rick
Ledsinger, CTNA’s Vice President, Human Resources for a
written response."
This statement is far from unequivocal. By stating that he
would give the grievances to a superior human resources offi-
cer at CTNA, Schultheiss suggested that his decision would
be subject to further review. This gave the Union good reason
to doubt that Schultheiss had the authority to finally resolve
the issue. Furthermore, by stating that a written response
would be forthcoming, Schultheiss implied that an oral
response alone was too informal to end the matter and that
Ledsinger’s written response was necessary to finalize the
decision.
In addition, by stating that the grievances were not arbitra-
ble under the "current grievance procedure," Schultheiss sug-
gested that he was expressing an opinion only as to whether
arbitration was required by the grievance procedure in
CTNA’s recently imposed Implemented Terms, and not an
opinion as to whether it was required by the prior P&I Agree-
ment. Schultheiss’s failure to address whether CTNA would
refuse to arbitrate grievances covered, as the Union believed
its grievances were, by the P&I Agreement left open that
question as well as the possibility for further discussions.
For various reasons, therefore, Schultheiss’s statement did
not "make clear" that CTNA had "made a final decision refus-
ing to arbitrate." Niro, 827 F.2d at 177-78. A refusal to arbi-
trate must be unequivocal so that it puts the other party on
notice that the statute of limitations period has begun. The
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cagily worded statement in Schultheiss’s affidavit simply did
not put the Union on notice that CTNA would not arbitrate
the dispute and that consequently the Union would have to
file suit to compel arbitration within the applicable limitations
period.
We conclude, therefore, that the limitations period did not
begin with Schultheiss’s statement on August 9, 2006, as
CTNA contends. Regardless of whether it began on August
16 with Ledsinger’s written refusal to arbitrate or only after
August 17 when the Union formally demanded arbitration, the
February 14, 2007 filing date for this complaint was within
the six-month limitations period.
III.
CTNA next argues that the Union’s action to compel arbi-
tration fails on the merits. Specifically, CTNA contends that
it is not obligated to arbitrate the grievances under the CBA
and the P&I Agreement because the agreements do not pro-
vide for arbitration of the particular grievances at issue here,
and, in any event, they were no longer in force when the
grievances were filed.
CTNA is of course correct that the obligation to arbitrate is
strictly contractual. The Supreme Court has repeatedly
emphasized "that arbitration is a matter of contract and a party
cannot be required to submit to arbitration any dispute which
he has not agreed so to submit." AT&T Technologies, Inc. v.
Communications Workers of America, 475 U.S. 643, 648
(1986) (internal quotation marks omitted). See also Nolde
Bros., Inc. v. Local No. 358, Bakery and Confectionery Work-
ers Union, 430 U.S. 243, 250-51 (1977) (noting prior cases
holding that "a party cannot be compelled to arbitrate any
matter in the absence of a contractual obligation to do so");
Gateway Coal Co. v. United Mine Workers of America, 414
U.S. 368, 374 (1974) ("The law compels a party to submit his
grievance to arbitration only if he has contracted to do so.").
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In Nolde Bros., the Court explained that "[a]dherence to
these principles, however, does not require us to hold that ter-
mination of a collective-bargaining agreement automatically
extinguishes a party’s duty to arbitrate grievances arising
under the contract." 430 U.S. at 251. But this question of con-
tinuing arbitration obligations is, like so much else in this
area, a matter of basic contract law. In fact, grievances filed
after a contract expires are only arbitrable when they "arise
under the contract." Litton Fin. Printing Div. v. NLRB, 501
U.S. 190, 205-06 (1991). The Court went on to explain:
A postexpiration grievance can be said to arise under
the contract only where it involves facts and occur-
rences that arose before expiration, where an action
taken after expiration infringes a right that accrued
or vested under the agreement, or where, under nor-
mal principles of contract interpretation, the disputed
contractual right survives expiration of the remainder
of the agreement.
Id. These various theories are all getting at the same question:
"whether the parties agreed to arbitrate this dispute." Id. at
209 (emphasis added).
Here, we have little trouble concluding that they did. Multi-
ple provisions of the contracts support that view. The parties
not only provided for arbitration broadly during the life of the
CBA and the P&I Agreement, see CBA, Art. IV, ¶ 401; P&I
Agreement, Art. IV, ¶ 8. They also explicitly agreed that the
arbitration procedure outlined in the CBA would survive the
expiration of the CBA for use in resolving disputes over pen-
sion and health insurance benefits. In the article governing the
pension plan, the P&I Agreement states that the CBA griev-
ance procedure shall be used to resolve disputes over "the
amount of pension" and then states: "Termination of the
Labor Agreement shall not invalidate the use of its grievance
procedure for the purposes of this paragraph." P&I Agree-
ment, Art. I, § VI, ¶ 1. Similarly, in the article governing
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health insurance, the P&I Agreement states that the CBA
grievance procedure shall be used to resolve disputes about
"whether the Company has provided the insurance benefits
hereinabove described" and then states: "Termination of the
Labor Agreement shall not invalidate the use of its grievance
procedure for the purposes of this Section." Id. at Art. III,
§ III, ¶ F. These provisions show that the parties intended to
arbitrate disputes over pension and health insurance benefits,
such as the ones at issue in this case, after the date that the
CBA and the P&I Agreement were set to jointly expire.
CTNA alleges that the specific arbitration provision gov-
erning health benefits does not apply to the Union’s claim for
extended health insurance benefits because the provision
addresses "benefits hereinabove described" and the basis of
the Union’s claim falls below the provision. Even leaving
aside the question of whether this argument was ever raised
with anything approaching the requisite specificity in the
court below, the one word upon which CTNA fastens is
hardly sufficient to counteract the great weight of contractual
provisions to the contrary or the Supreme Court’s admonition
in Litton that even in cases of postexpiration arbitration,
"doubts should be resolved in favor of coverage." 501 U.S. at
209.
In addition, the parties agreed that "[n]otwithstanding the
termination of the Agreement for Pension, Service Award,
Insurance and Supplemental Workers’ Compensation Bene-
fits, the benefits described herein shall be provided for ninety
(90) days following termination." P&I Agreement, Art. IV, ¶
5. When this is read in combination with the general arbitra-
tion clauses, see CBA, Art. IV, ¶ 401; P&I Agreement, Art.
IV, ¶ 8, and the specific arbitration clauses described above,
see P&I Agreement, Art. I, § VI, ¶ 1; id. at Art. III, § III, ¶
F, it is clear that the parties agreed to arbitrate disputes over
pension and health insurance benefits that might arise during
the 90 days of extended coverage. The Union’s grievances fall
squarely within this category: one claim is for accelerated
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pension benefits, the other is for extended health insurance
coverage, and both are based on layoffs that occurred during
the 90 day extended benefits period.
As the Court said in Litton, "if a collective-bargaining
agreement provides in explicit terms that certain benefits con-
tinue after the agreement’s expiration, disputes as to such con-
tinuing benefits may be found to arise under the agreement,
and so become subject to the contract’s arbitration provi-
sions." 501 U.S. at 207-08. Whether the parties provided for
arbitration generally or specifically makes no difference in
this instance. All of the contractual roads here lead to Rome,
with Rome in this case being arbitrability. In fact, were we to
hold that under this contract the commitment to arbitrate ter-
minated on the very day the collective bargaining agreement
expired, we would be embracing the untenable proposition
that arbitration obligations could seldom outlive the collective
bargaining agreements in which they were embodied. But any
such notion is at odds with the parties’ freedom to contract for
dispute resolution mechanisms of a duration the parties them-
selves would prefer.
Questions beyond this are for the arbitrator to decide on the
merits. For example, CTNA contends that the clause provid-
ing for arbitration of disputes over "the amount of pension"
benefits, P&I Agreement, Art. I, § VI, ¶ 1, does not apply to
the Union’s claim for accelerated pension benefits because
that claim has only to do with form and timing, not the under-
lying amount due, which CTNA allegedly does not dispute.
The question of whether the acceleration provision increases
the amount of benefits above the level that CTNA concedes
it owes, however, draws us too far into the arbitrator’s role of
deciding the merits of the claim.
To be sure, courts are permitted some latitude to interpret
provisions of a bargaining agreement that impact the underly-
ing merits of the dispute when it is necessary to determine
whether the parties agreed to arbitrate the dispute. See Litton,
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501 U.S. at 208-09. If possible, however, the underlying mer-
its should be avoided, so that we do not take on the role that
the parties have assigned to the arbitrator. See AT&T Technol-
ogies, 475 U.S. at 649 (noting prior cases holding that "in
deciding whether the parties have agreed to submit a particu-
lar grievance to arbitration, a court is not to rule on the poten-
tial merits of the underlying claims"); Cumberland
Typographical Union No. 244 v. Times and Alleganian Co.,
943 F.2d 401, 404 (4th Cir. 1991). Because the parties’
clearly intended to arbitrate the grievances at issue here, we
need not, and indeed may not, ourselves take up the merits.
IV.
Courts in this area must navigate between two poles. On
the one hand, we may not impose upon any party an arbitra-
tion obligation to which it has not consented. See, e.g., Nolde
Bros., 430 U.S. at 250-51. By the same token, we are also
obliged not to permit a party to wiggle out of an obligation to
which it has agreed. The contracts make plain that the latter
danger in this case is the one that needs to be averted. The dis-
trict court recognized as much and its judgment is affirmed.
AFFIRMED
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