On Appeal from the United States District Court for the Western District of Pennsylvania.
Gibbons and Hunter, Circuit Judges and Rambo, District Judge.*fn*
Westinghouse Electric Corporation appeals from an order, entered in a suit by the Federation of Westinghouse Independent Salaried Unions and the Salaried Employees Association of the Baltimore Division, pursuant to Section 301(A) of the Labor Management Relations Act, 29 U.S.C. § 185(a), directing Westinghouse to arbitrate a grievance on behalf of a former Westinghouse employee. The appeal requires that we determine what statute of limitations applies to a suit to compel arbitration in accordance with the terms of a collective bargaining agreement, whether that limitations period expired before the suit was filed, and whether the underlying dispute is arbitrable. We conclude that section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b) is the most analogous statute of limitations, that there are material issues of disputed fact as to whether the action to compel arbitration was timely under that statute, and that if the suit was timely filed the dispute is arbitrable. Thus we remand for a determination of the question of when the cause of action to compel arbitration accrued to the plaintiff unions.
On June 25, 1981, Dorothea Armstrong, an employee in the Westinghouse Aerospace Division in Baltimore, was notified by the division personnel manager that she would be treated as a "voluntary quit" because she had been absent from work without explanation for several weeks. The personnel manager relied on a local supplement to the Collective Bargaining Agreement between Westinghouse and the Federation providing:
An employe who is absent without permission for a period of (5) working days, and the employe's supervisor or, in his absence, the Medical Department, has not received a report during this period giving a satisfactory reason for such absence, shall be considered as having voluntarily quit unless he can show extenuating circumstances making it impossible for him to report.
On June 29, 1981 the Salaried Employees Association filed a grievance on Armstrong's behalf, claiming that she had been unjustly released, and seeking reinstatement with back pay. The grievance was filed pursuant to Section XV of the Federation-Westinghouse Collective Bargaining Agreement which provides a local grievance procedure, and, with specified exceptions, a no-strike undertaking. The grievance went through company grievance procedures, culminating, at the final in-house stage, with a denial on December 18, 1981. In the December 18, 1981 letter denying the grievance Westinghouse took the position that Armstrong, having repeatedly failed to respond to requests that she provide information about her claimed illness or return to work, should be treated as a voluntary quit.
On January 15, 1982 the Federation demanded arbitration. This demand was made pursuant to Section XV-A of the Federation-Westinghouse Collective Bargaining Agreement which provides in relevant part:
1. Grievances, other than those concerning probationary employes, which remain unsettled after the grievance procedure has been exhausted pursuant to Section XV and which protest only a disciplinary penalty, release, or discharge of an employe allegedly imposed without just cause, shall be arbitrable upon a valid request of either the Federation or the Company. In the arbitration of such grievances, the authority and jurisdiction of the arbitrator shall be limited to determining whether the Company's action was without just cause, and if so, what shall be the remedy.
2. Grievances involving any other disputes, including alleged violations of this Agreement or a local supplement hereto, shall not be arbitrable except by mutual written agreement between the Federation and the Company setting forth the specific dispute to be arbitrated.
App. at 38. On January 29, 1982, Westinghouse responded to the demand for arbitration by stating that it would not arbitrate because "[t]his dispute is not subject to demand arbitration and the Company is unwilling to process the grievance into arbitration by special agreement." Thus on January 29, 1982 Westinghouse informed the Federation that it would arbitrate under neither of the quoted arbitration clauses.
On February 1, 1982, the Federation informed Westinghouse in writing that it did not intend to pursue legal action to compel arbitration, but would, instead, authorize its Baltimore Affiliate to strike. The reference to strike authorization was made because ...