                                _____________

                                 No. 96-1538
                                _____________

The United Rubber, Cork,           *
Linoleum, and Plastic Workers      *
of America, AFL-CIO, CLU,          *
Local 164,                             *
                                       *
            Plaintiff-Appellant,       *   Appeal from the United States
                                       *   District Court for the
     v.                                *   Southern District of Iowa.
                                       *
Pirelli Armstrong Tire             *
Corporation,                           *
                                       *
            Defendant-Appellee.        *


                                _____________

                     Submitted:    September 13, 1996

                           Filed: January 6, 1997
                              _____________

Before WOLLMAN, ROSS, and HANSEN, Circuit Judges.
                              _____________


HANSEN, Circuit Judge.

     The United Rubber, Cork, Linoleum and Plastic Workers of America,
AFL-CIO, CLU, Local 164 (the Union), the collective bargaining agent for
the workers of Pirelli Armstrong Tire Corporation (Pirelli), brought this
action to compel Pirelli to arbitrate and process 35 grievances that arose
under a collective bargaining agreement (CBA) between the Union and
Pirelli.   The Union appeals the district court's1 grant of partial summary




      1
       The Honorable Ronald E. Longstaff, United States District
Judge for the Southern District of Iowa.
judgment, which denies the petition to compel arbitration for 30 of those
grievances.2           We affirm.


                                                I.


        On July 15, 1991, the Union and Pirelli entered into a collective
bargaining agreement, which contains a grievance procedure that requires
final and binding arbitration of disputes arising under the CBA.                          The CBA
provides that the grievance process progresses in three steps.                            At step
one, the employee presents the grievance to a senior foreman.                             If not
satisfactorily settled at step one, the grievance proceeds to step two,
where       it    is    reduced     to   writing       and   presented   to   the   Divisional
Superintendent.            If a satisfactory settlement is not negotiated at step
two, the grievant can appeal to step three within 10 days of the step two
disposition.           At step three, the grievance is advanced by the local union
negotiating committee, which meets with the employee relations manager.
The employee relations manager provides a written answer to the grievance
within 5 days after the meeting.               From the date of the step-three answer,
the Union has 30 days to invoke arbitration.


        The CBA also provides that the parties may agree to establish
additional         steps    to    facilitate    the     grievance   process.        The    record
demonstrates that the parties developed an informal process of placing a
grievance on hold at either the second or third step of the grievance
process.         Those grievances placed on hold remained viable in spite of the
time limits provided in the CBA, but the parties disagree over whether the
face of the grievance would necessarily bear a notation that it was being
held in order for the




        2
      An appeal may be taken from an order denying a petition to
compel arbitration.     9 U.S.C. § 16(a)(1)(B) (1994).         An
interlocutory order denying a petition to compel arbitration, see
9 U.S.C. § 4, is immediately appealable. Ballay v. Legg Mason
Wood Walker, Inc., 878 F.2d 729, 732 (3d Cir. 1989).

                                                   2
grievance to remain viable.    Pirelli asserts that the grievances not marked
"hold" are no longer viable, while the Union contends that all of the
grievances were on hold, whether marked or not.


      The CBA expired on July 15, 1994.         At that time, the 35 employee
grievances that are the subject of this suit had accrued and remained
pending.   The parties were unable to negotiate a new agreement, and the
employees went on strike.      On July 16, 1994, Pirelli sold its assets to
Titan Tire Corporation (Titan).     The expired CBA provided that Pirelli's
obligations under it would pass to any subsequent owner, and the purchase
agreement specifically provided that Titan would assume all obligations
with respect to the transferred employees' claims under the Employee
Benefit Plan.      Thus, the Union continued to seek resolution of the
grievances that had arisen under the now-expired CBA.            In August 1994,
Titan negotiated a return-to-work agreement with the employees, but the 35
grievances that had arisen prior to the expiration of the CBA were never
settled or arbitrated.


      On January 13, 1995, the Union brought this action pursuant to § 301
of the Labor Management Relations Act, 29 U.S.C. § 185 (1994), seeking to
compel Pirelli to arbitrate these 35 outstanding grievances.         Both parties
moved for summary judgment.     The Union sought an order compelling Pirelli
to arbitrate the grievances.    The district court denied the Union's motion
for   summary   judgment,   concluding   that   the   CBA's   provision   that   all
obligations shall pass to any subsequent owner may preclude the Union from
compelling Pirelli to arbitrate subsequent to its sale of the business to
Titan.


      Pirelli sought summary judgment on several grounds, including that
the action to compel arbitration is barred by the limitation periods
provided in both the expired CBA (requiring the Union to appeal a step-two
disposition within 10 days and a step-three disposition within 30 days) and
in 29 U.S.C. § 160(b) (requiring




                                         3
suit to be filed within 6 months after the cause of action accrues).                         The
district court denied Pirelli's motion for summary judgment on all grounds
but one.    The district court concluded, among other things, that Pirelli
was not entitled to summary judgment on the basis of the procedural
limitations provided in the CBA, because that is an issue reserved for the
arbitrator, not the court.            However, the district court granted partial
summary judgment to Pirelli as to 30 grievances, concluding that this court
action to compel arbitration of those 30 grievances is barred by the 6-
month statute of limitations period provided in 29 U.S.C. § 160(b).                          The
court denied summary judgment on the remaining 5 grievances, finding that
a question of material fact exists regarding whether the parties agreed to
place these grievances on hold because of a specific notation on the face
of the grievances, which may have tolled the statute of limitations.


     The Union appeals the district court's grant of partial summary
judgment,     denying   the    Union's    petition      to    compel      arbitration   of   30
grievances.    Trial on the remaining 5 grievances has been delayed pending
the outcome of this appeal.


                                           II.


     We review the district court's grant of summary judgment de novo,
applying the same standards as the district court.                  Beverly Hills Foodland,
Inc. v. United Food and Commercial Workers Union, Local 655, 39 F.3d 191,
194 (8th Cir. 1994).          Summary judgment is appropriate where there is no
genuine issue of material fact and the moving party is entitled to judgment
as a matter of law.      Id.; Fed. R. Civ. P. 56(c).


     The Union contends that the district court erred by denying its
petition to compel arbitration of the 30 grievances at issue in this
appeal.       Specifically,     the    Union       argues    that   the    court   improperly
determined a matter reserved for the arbitrator by




                                               4
considering whether the grievances had been placed on hold.             We disagree.


      There is no dispute that an action to compel arbitration is governed
by the 6-month limitations period set forth in § 10(b) of the National
Labor Relations Act, 29 U.S.C. § 160(b).           John Morrell & Co. v. United Food
and Commercial Workers Int'l Union, Local 304A, 992 F.2d 205, 207 n.3 (8th
Cir.), cert. denied 510 U.S. 994 (1993); Alcorn v. Burlington N.R.R., 878
F.2d 1105, 1108 (8th Cir. 1989).            The question of whether a petition to
compel arbitration is timely under the statute of limitations is an
appropriate issue for the court; where the district court has jurisdiction
to   hear   a   claim,   it   necessarily    has   jurisdiction   to   determine   the
timeliness of that claim.       National Iranian Oil Co. v. Mapco Int'l, Inc.,
983 F.2d 485, 491 (3d Cir. 1992) (stating this principle in the context of
a petition to compel arbitration under the Arbitration Act, 9 U.S.C. § 4).
After the court determines "that the parties are obligated to submit the
subject matter of a dispute to arbitration, `procedural' questions which
grow out of the dispute and bear on its final disposition should be left
to the arbitrator."       John Wiley & Sons v. Livingston, 376 U.S. 543, 557
(1964).


      We are satisfied that the district court did not decide an issue that
is reserved for the arbitrator but properly considered only whether the
cause of action before it was timely.                The district court could not
determine the timeliness of the action before it without first determining
when the 6-month statute of limitations began to run.             This required some
reference to the terms of the CBA.      A cause of action to compel arbitration
"accrues when the grievance procedure is exhausted or otherwise breaks down
to the employee's disadvantage," which is, at the latest, the last date
when arbitration could have been requested.           Cook v. Columbian Chem. Co.,
997 F.2d 1239, 1241 (8th Cir. 1993) (internal quotations and alterations
omitted).




                                            5
     To determine when the cause of action accrued, the district court
looked to the last date when arbitration could have been timely requested
under the terms of the CBA.      Of the grievances at issue in this appeal, the
most recent grievance disposition that was not appealed was a step-three
disposition dated June 3, 1994.      Because this was a step-three disposition
for which the CBA provided 30 days in which to appeal to the arbitration
step, a cause of action to compel arbitration accrued 30 days later on July
3, 1994 -- the last date when arbitration could have been timely requested.
The present action was filed on January 13, 1995, more than 6 months after
the cause of action accrued.


     The Union contends that summary judgment was inappropriate because
the parties agreed to hold these grievances and thus, the cause of action
did not accrue until August 16, 1994, the date when the Union requested
Pirelli to continue negotiating all outstanding grievances.              As already
noted, the CBA specifically provided that the parties could agree to modify
the grievance procedure set forth in the CBA.          The district court denied
summary judgment as to 5 grievances, concluding that the evidence indicated
that the parties may have agreed to hold them beyond the expiration of the
time for appeal specifically provided in the CBA, which in turn may have
prevented the accrual of this cause of action.         Those 5 grievances bore a
specific notation of "hold," dated subsequent to the final step-two or
step-three disposition noted on the grievance.        As to the 30 grievances at
issue in this appeal, the district court concluded that the Union "failed
to create a question of material fact regarding whether they were placed
on hold by the parties."        (Appellant's Addend. at 16.)


     We    agree   with   the   district   court's   assessment   that   the   Union
presented no evidence to create a genuine issue of material fact concerning
whether these 30 grievances were on hold and thus not barred by the statute
of limitation.     The Union merely asserts that all of the grievances were
on hold.   However, all of the 30




                                           6
grievances at issue show final step-two or step-three dispositions that
were not appealed.     The Union's president, Earl Seymour, states in his
deposition testimony that once a step-three disposition is provided, it
must be appealed to the arbitration step within 30 days.      His affidavit
recites the grievance process, which includes the option of placing
grievances on hold by agreement of the parties.       However, there is no
assertion that the parties actually agreed to hold the 30 grievances at
issue and there is no evidence of a demand for arbitration.     No markings
on any of these grievances indicate that the parties agreed to place them
on hold after the date when the grievances were finally denied.      Absent
some evidence to indicate that the parties agreed to process these 30
grievances by a procedure different from that articulated in the CBA, the
court properly granted summary judgment because the cause of action was
filed over 6 months beyond the last date when arbitration could have been
requested.   The district court did not engage in fact-finding, but properly
assessed the record evidence before it.


     The Union contends that the district court erred because the issue
of whether the parties agreed to hold the grievances beyond the CBA's
express procedural limitations is a matter of procedural arbitrability,
reserved for the arbitrator.   To the contrary, the district court did not
decide whether the grievances themselves are time-barred under the terms
of the agreement, which we agree is an issue of procedural arbitrability
reserved for the arbitrator.      See Wiley, 376 U.S. at 557-59; Auto.,
Petroleum & Allied Indus. Employees Union, Local No. 618 v. Town & Country
Ford, Inc., 709 F.2d 509, 514 (8th Cir. 1983).          Instead, the court
determined when the cause of action for this petition to compel arbitration
accrued.   The determination was complicated in this case by the fact that
the CBA specifically allowed the parties to create a procedure where they
could agree to place a grievance on hold, suspending its viability, and the
Union contends that all of the grievances were on hold pursuant to this
alternate procedure.




                                     7
Reference to the terms of the CBA and any potential agreements reached
pursuant to those terms that might prolong the accrual of the cause of
action was unavoidable because the record contains no clear demand for or
refusal of arbitration from which to calculate the limitations period for
this cause of action.   The district court's discussion of the terms of the
CBA, conducted in order to determine when this cause of action accrued, did
not transform the statute of limitations inquiry into one of procedural
arbitrability.


     Our review of the record indicates that there is no evidence to
create a question of fact concerning whether the parties agreed to place
the 30 grievances at issue on hold.   From the face of the grievances, the
last date when arbitration could have been timely requested is beyond the
6-month statutory limitations period.      Accordingly, the district court
properly granted partial summary judgment in favor of Pirelli.


                                    III.


     For the foregoing reasons, we affirm the judgment of the district
court.


     A true copy.


           Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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