Retail Delivery Drivers, Driver Salesmen, Produce Workers & Helpers Local 588 v. Servomation Corp., 717 F.2d 475 (9th Cir. 1983). · Go Syfert
Retail Delivery Drivers, Driver Salesmen, Produce Workers & Helpers Local 588 v. Servomation Corp., 717 F.2d 475 (9th Cir. 1983). Cases Citing This Book View Copy Cite
53 citation events (29 in the last 25 years) across 9 distinct courts.
Strongest positive: SEIU United Healthcare Workers-West v. Santa Rosa Community Health Centers (cand, 2022-08-31)
Treatment trajectory · 1985 → 2026 · click a year to view as-of
1985 2005 2026
Top citers, strongest first. 20 distinct citers. How cited ↗
discussed Cited as authority (rule) SEIU United Healthcare Workers-West v. Santa Rosa Community Health Centers (2×) also: Cited "see"
N.D. Cal. · 2022 · confidence medium
However, “[t]here is some support for the proposition 24 that a court may consider a strictly procedural question as to the timeliness of a demand for 25 arbitration in those rare instances where no factual dispute exists and resolution of the issue would 26 preclude all need for arbitration.” Retail Delivery Drivers, Driver Salesmen, Produce Workers & 27 Helpers Loc. 588 v. Servomation Corp., 717 F.2d 475, 478 (9th Cir. 1983). 1 The Union maintains that the timeliness of its arbitration demand is a procedural question 2 for the arbitrator.
discussed Cited as authority (rule) Perez v. Discover Bank
N.D. Cal. · 2021 · confidence medium
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ILIANA PEREZ, et al., Case No. 20-cv-06896-SI 8 Plaintiffs, ORDER RE AUGUST 27, 2021 9 v. HEARING ON DEFENDANT'S MOTION TO COMPEL 10 DISCOVER BANK, ARBITRATION 11 Defendant. 12 13 The Court will hear oral argument on defendant Discover Bank’s motion to compel 14 arbitration on August 27, 2021. 15 The parties shall be prepared to discuss the application of the following caselaw to 16 defendant’s motion to compel arbitration: 17 • John Wiley & Sons v. Livingston, 376 U.S. 543, 557-58 (1964) (“Once it is determined…
discussed Cited as authority (rule) UNITE HERE! Local 2 v. Tastes on the Fly, Inc. (2×)
N.D. Cal. · 2021 · confidence medium
Thus, 24 this is not the kind of “rare” case in which the court can decide an isolated and strictly procedural 25 issue. 26 Second, while the Ninth Circuit has recognized that there is “some support for the 27 proposition that a court may consider a strictly procedural question as to the timeliness of a 1 See Retail Delivery Drivers, Driver Salesmen, Produce Workers & Helpers Loc. 588 v. 2 Servomation Corp., 717 F.2d 475, 478 (9th Cir. 1983).
discussed Cited as authority (rule) United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC v. Vista Metals Corporation (2×)
C.D. Cal. · 2020 · confidence medium
“However, the Ninth Circuit has also noted in dicta that “|t|here is some support for the proposition that a court may consider a strictly procedural question as to the timeliness of a demand for arbitration in those rare instances where no factual dispute exists and resolution of the issue would preclude all need for arbitration.” Unite Here Local 30, 2019 WL 6118461 , at * 5 (citing Retail Delivery Drivers, Driver Salesmen, Produce Workers & Helpers Local 588 v. Servomation Corp.., 717 F.2d 475, 478 (9th Cir. 1983)).
discussed Cited as authority (rule) International Union, United Automobile, Aerospace & Agricultural Implement Workers v. Williams Controls, Inc.
D. Or. · 2008 · confidence medium
Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 , 123 S.Ct. 588 , 154 L.Ed.2d 491 (2002) (time limit defense to arbitrability is for the arbitrator); John Wiley & Sons v. Livingston, 376 U.S. 543, 557-59 , 84 S.Ct. 909 , 11 L.Ed.2d 898 (1964) (arbitrator must decide whether preliminary steps of grievance followed); Retail Delivery Drivers Local 588 v. Servomation Corp., 717 F.2d 475, 478 (9th Cir.1983) (“when time limitations and other procedural requirements are made an express part of the arbitration agreement, they become part of the bundle of issues the parties consented to have decide…
discussed Cited as authority (rule) Unión General de Trabajadores v. Corporación de Puerto Rico para la Difusión Pública
prsupreme · 2006 · confidence medium
E.g., John Wiley & Sons v. Livingston, supra, pág. 557 (["Procedural questions include,] whether grievance procedures or some part of them apply to a particular dispute, whether these procedures have been followed or excused, or whether the unexcused failure to follow them avoids the duty to arbitrate”); Local Union No. 370 v. Morrison-Knudsen Co., 786 F.2d 1356 , 1358 (9no Cir. 1986) (“Even matters that are ‘extrinsic’ to the process of interpreting the collective bargaining agreement, such as defenses of collateral estoppel and equitable estoppel, are subject to arbitration”); McK…
discussed Cited as authority (rule) Laborers Int'l Union of North America, Local 89, Afl-Cio v. Patrick Media Group, Inc.
9th Cir. · 1996 · confidence medium
This may be correct, but whether it is or not is a matter for the arbitrator to decide. " '[W]hen time limitations and other procedural requirements are made an express part of the arbitration agreement, they become part of the bundle of issues the parties consented to have decided by an arbitrator's special interpretative ability.' " Goss Golden West Sheet Metal, Inc. v. Sheet Metal Workers Int'l Union, Local 104, 933 F.2d 759 , 764 (9th Cir.1991) (quoting Retail Delivery Drivers, Local 588 v. Servomation Corp., 717 F.2d 475, 478 (9th Cir.1983)). 22 The CBA between Patrick Media and Local 89 …
discussed Cited as authority (rule) Casino Distributors, Inc. v. Teamsters Local 331
N.J. Super. Ct. App. Div. · 1993 · confidence medium
As observed there, “when time limitations and other procedural requirements are made an express part of the arbitration agreement, they become part of the bundle of issues the parties consented to have decided by an arbitrator’s special interpretative ability.” 933 F. 2d at 764 (quoting Retail Delivery Drivers, Local 588 v. Servomation Corp., 717 F.2d 475, 478 (9th Cir.1983)).
cited Cited as authority (rule) Toyota of Berkeley, a Corporation v. Automobile Salesmen's Union, Local 1095, United Food and Commercial Workers Union
9th Cir. · 1987 · confidence medium
Retail Delivery Drivers Local 588 v. Servomation Corp., 717 F.2d 475, 478 (9th Cir.1983).
cited Cited "see" Kaiser Foundation Health Plan, Inc. v. Office and Professional Employees International Union, Local 29, AFL-CIO
N.D. Cal. · 2023 · signal: see · confidence high
See Retail Delivery Drivers, Driver Salesmen, Produce Workers & 17 Helpers Loc. 588 v. Servomation Corp., 717 F.2d 475, 478 (9th Cir. 1983).
discussed Cited "see" Benson Pump Co. v. South Central Pool Supply, Inc.
D. Nev. · 2004 · signal: see · confidence high
See Retail Delivery Drivers v. Servomation Corp., 717 F.2d 475, 478 (9th Cir.1983); see also Goss *1158 Golden West Sheet Metal, Inc. v. Sheet Metal Workers Int’l Union, Local 104, 933 F.2d 759 , 763-64 (9th Cir.1991).
discussed Cited "see" Service Employees International Union v. St. Vincent Medical Center
9th Cir. · 2003 · signal: see · confidence high
See Retail Delivery Drivers, Local 588 v. Servomation Corp., 717 F.2d 475, 478 (9th Cir.1983); United Food & Commercial Workers Union, Local 770 v. Geldin Meat Co., 13 F.3d 1365, 1368 (9th Cir.1994) (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 , 80 S.Ct. 1347 , 4 L.Ed.2d 1409 (1960)) (“[Jjudicial inquiry ... must be strictly confined to the question whether the reluctant party did agree to arbitrate.”).
discussed Cited "see" Service Employees International Union Service Employees International Union, Local 399 v. St. Vincent Medical Center Daughters of Charity Health Systems, Inc.
9th Cir. · 2003 · signal: see · confidence high
See Retail Delivery Drivers, Local 588 v. Servomation Corp., 717 F.2d 475, 478 (9th Cir.1983); United Food & Commercial Workers Union, Local 770 v. Geldin Meat Co., 13 F.3d 1365, 1368 (9th Cir.1994) (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 , 80 S.Ct. 1347 , 4 L.Ed.2d 1409 (1960)) ("[J]udicial inquiry ... must be strictly confined to the question whether the reluctant party did agree to arbitrate."). 51 Therefore, we hold that under Supreme Court law and the law of this circuit, the Union stated a claim for which relief may be granted, namely that the dis…
discussed Cited "see, e.g." Kaiser Foundation Health Plan, Inc. v. Service Employees International Union-United Healthcare Workers West
N.D. Cal. · 2023 · signal: see, e.g. · confidence medium
See, e.g., Retail Delivery Drivers, et al. v. Servomation Corporation, 717 F.2d 475, 478 (9th Cir. 1983); Rochester Telephone Corporation v. Communications Workers of America, 340 F.2d 237, 239 (2d Cir. 1965); see also John Wiley, 376 U.S. at 557–58.
discussed Cited "see, e.g." Local 1422, International Longshoremen's Ass'n v. South Carolina Stevedores Ass'n
4th Cir. · 1999 · signal: see also · confidence medium
Co., 363 U.S. 564, 567-69 , 80 S.Ct. 1343 , 4 L.Ed.2d 1403 (1960) (lower court had found that failure-to-hire dispute that arose when an employee collected workers compensation for an injury and then one month later attempted to regain employment was too frivolous to be arbitrable; Supreme Court reversed, noting that courts are to review the claim for arbitrability “on its face” rather than to determine the merits of a dispute); see also Retail Delivery Drivers v. Servomation Corp., 717 F.2d 475, 477-78 (9th Cir.1983); Conticommodity Serv.
discussed Cited "see, e.g." Local 1422, International Longshoremen's Association v. South Carolina Stevedores Association
4th Cir. · 1999 · signal: see also · confidence medium
Co., 363 U.S. 564, 567-69 , 80 S.Ct. 1343 , 4 L.Ed.2d 1403 (1960) (lower court had found that failure-to-hire dispute that arose when an employee collected workers compensation for an injury and then one month later attempted to regain employment was too frivolous to be arbitrable; Supreme Court reversed, noting that courts are to review the claim for arbitrability "on its face" rather than to determine the merits of a dispute); see also Retail Delivery Drivers v. Servomation Corp., 717 F.2d 475, 477-78 (9th Cir.1983); Conticommodity Serv.
discussed Cited "see, e.g." Local Union No. 370 Of The International Union Of Operating Engineers v. Morrison-Knudsen Company, Inc.
9th Cir. · 1986 · signal: see also · confidence medium
"Once it is determined ... 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 and Sons v. Livingston, 376 U.S. 543, 557 , 84 S.Ct. 909, 918 , 11 L.Ed.2d 898 (1964) (whether preliminary steps in the grievance procedure have been followed is a question for the arbitrator); see also Retail Delivery Drivers v. Servomation, 717 F.2d 475, 477 (9th Cir.1983) (whether the grievance was timely filed is a question for the arbitrator).
discussed Cited "see, e.g." Local Union No. 370 of International Union of Operating Engineers v. Morrison-Knudsen Co.
9th Cir. · 1986 · signal: see also · confidence medium
“Once it is determined ... 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 and Sons v. Livingston, 376 U.S. 543, 557, 84 S.Ct. 909, 918 , 11 L.Ed.2d 898 (1964) (whether preliminary steps in the grievance procedure have been followed is a question for the arbitrator); see also Retail Delivery Drivers v. Servomation, 717 F.2d 475, 477 (9th Cir.1983) (whether the grievance was timely filed is a question for the arbitr…
discussed Cited "see, e.g." Central Valley Typographical Union, No. 46 and International Typographical Union v. McClatchy Newspapers, Publisher of the Sacramento Bee, a California Corporation, McClatchy Newspapers v. Central Valley Typographical Union No. 46, International Typographical Union
9th Cir. · 1985 · signal: see, e.g. · confidence medium
See San Diego County District Council of Carpenters v. Cory, 685 F.2d 1137 , 1139 n. 4 (9th Cir.1982); see, e.g., Retail Delivery Drivers, Driver Salesmen, Produce Workers & Helpers Local 588 v. Servomation Corp., 717 F.2d 475, 477-78 (9th Cir.1983).
discussed Cited "see, e.g." Central Valley Typographical Union, No. 46 v. McClatchy Newspapers
9th Cir. · 1985 · signal: see, e.g. · confidence medium
See San Diego County District Council of Carpenters v. Cory, 685 F.2d 1137 , 1139 n. 4 (9th Cir.1982); see, e.g., Retail Delivery Drivers, Driver Salesmen, Produce Workers & Helpers Local 588 v. Servomation Corp., 717 F.2d 475, 477-78 (9th Cir.1983).
Retrieving the full opinion text from the archive…
RETAIL DELIVERY DRIVERS, DRIVER SALESMEN, PRODUCE WORKERS & HELPERS LOCAL 588, Petitioner-Appellant,
v.
SERVOMATION CORPORATION, Respondent-Appellee
82-4396.
Court of Appeals for the Ninth Circuit.
Sep 30, 1983.
717 F.2d 475
1983 U.S. App. LEXIS 16396
Kenneth N. Silbert, Beeson, Tayer, Ko-vach & Silbert, San Francisco, Cal., for petitioner-appellant., Samuel L. Holmes, Angelí, Holmes & Lea, San Francisco, Cal., for respondent-ap-pellee.
Fairchild, Hug, Farris.
Cited by 24 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 69%
Citer courts: D. Arizona (1)
FAIRCHILD, Senior Circuit Judge.

This is an appeal from a denial of Local 588’s Petition to Compel Arbitration pursuant to its collective bargaining agreement with Servomation. The district court held that petitioner’s grievance was “not subject to compulsory arbitration because of [its] failure to comply with the contractual time limitation [for demanding arbitration] and that the parties did not agree to the arbitration of grievances not meeting the contractual time limitation.” We reverse.

I.

The collective bargaining agreement between Local 588 and respondent Servomation (“the Agreement”) governs the wages and working conditions of certain Servomation employees from July 1, 1980 to June 30, 1983. Sections 15 and 16 of the Agreement provide a grievance procedure for resolving disputes arising under the contract! Under Section 16 of the Agreement, a grievance is heard initially by an “Adjustment Committee” composed of two members selected by the union and two members selected by the company. Where a grievance is not resolved by the Adjustment Committee the matter may be taken to arbitration provided proper notice is given to the other party. Section 16 requires that a party give notice of its desire to arbitrate within seventy-two (72) hours of notification of the Committee’s inability to decide the matter. If neither party seeks arbitration within that time period, the matter is “deemed to have been settled in favor of the [defending] party.” [1]

On September 14, 1981 Local 588 filed a grievance challenging the termination of Orlandus Bransford, an employee covered by the Agreement. The grievance was heard by an Adjustment Committee on September 29. The Committee failed to reach a consensus. The Committee recorded its deadlock on that day; there is no indication that formal notification of the Committee’s inability to decide the matter was ever provided to the parties.

Local 588 demanded that the Bransford grievance be submitted to arbitration on October 7, 1981. The parties agree that this demand came more than 72 hours after the September 29 meeting. Servomation refused to submit to arbitration on the grounds that the demand was untimely. Local 588 made other demands for arbitration of the grievance on October 23 and November 19, 1981, including arbitration of any issue as to timeliness. These demands were also refused by Servomation. Local 588 brought a Petition to Compel Arbitration in the District Court for the Northern District of California on December 28.

II.

The petition alleged that Local 588’s delay in demanding arbitration was caused by the Adjustment Committee’s direction to the parties to make further efforts to re[*477] solve the grievance; as soon as it became apparent settlement was impossible a demand for arbitration was made. Local 588’s memorandum in support of its petition argued that the district court only had jurisdiction to compel arbitration, and that any underlying issues, including timeliness of its notice of a desire to arbitrate, are reserved to the arbitrator. Respondent answered by denying that any further settlement discussions were carried on by direction of the Committee or in contemplation of suspending Local 588’s duty to demand arbitration, and by arguing that the district court could properly deny the petition to compel arbitration because the parties had not contracted to arbitrate untimely claims.

In a brief hearing before the district court the petitioner conceded that it had presented no evidence supporting its allegations of an excuse for giving untimely notice because in its view “that is a dispute which arises under the contract and which has to be arbitrated.” The petitioner did offer to make such evidence available to the court. After concluding that it had jurisdiction to decide the timeliness issue and finding no evidence excusing petitioner’s untimely demand for arbitration, the district court entered judgment for the respondent.

Petitioner subsequently filed a Motion to Alter Judgment and for Relief from Judgment asking the court to reconsider its conclusion that it had jurisdiction to rule on the timeliness question. In addition, petitioner asked the court to consider the affidavit of the Secretary-Treasurer of Local 588 to support its allegations that any delay in demanding arbitration was excusable. The district court denied both motions on the grounds that they presented legal and factual material which had been available at the time of the original petition to compel arbitration. Local 588 appeals.

III.

Servomation concedes that the substance of the underlying dispute over Bransford’s discharge was subject to arbitration under the Agreement. In John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), the Supreme Court held that “[o]nce it is determined . .. 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.” Id. at 557, 84 S.Ct. at 918. John Wiley involved a petition to compel arbitration where preliminary steps in the grievance procedure set out by contract had not been satisfied, including time limitations imposed on the filing of notice of a grievance. The Supreme Court took a similar position in Operating Engineers v. Flair Buildings, 406 U.S. 487, 92 S.Ct. 1710, 32 L.Ed.2d 248 (1972), where the equitable defense of laches was raised to a petition to compel arbitration pursuant to a contract. The Court held that the laches defense was among the issues to be arbitrated under the collective bargaining agreement, and properly a subject to be addressed by the arbitrator. See also Halcon International, Inc. v. Monsanto Australia Ltd., 446 F.2d 156 (7th Cir.), cert. denied, 404 U.S. 949, 92 S.Ct. 286, 30 L.Ed.2d 266 (1971). These decisions and later cases suggest a number of reasons for passing an entire dispute to the arbitrator, principal among them being the desirability of deferring to someone familiar with the practices in the industry and the avoidance of duplication and delay. See Delta Air Lines v. C.A.B., 574 F.2d 546, 550 (D.C.Cir.), cert. denied, 439 U.S. 819, 99 S.Ct. 82, 58 L.Ed.2d 110 (1978).

Respondent attempts to distinguish these decisions, and the other lower court cases cited .by petitioner, by pointing out their failure to address the restrictions of the Federal Arbitration Act, 9 U.S.C. §§ 1-14 (1976). That Act only permits a court to compel arbitration “in the manner provided in [the written] agreement.” 9 U.S.C. § 4 (1976). Section 4 states the basic proposition that “a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960). Re[*478] spondent urges that in this case the parties did not contract to proceed to arbitration unless the Agreement’s contractual time limitations were satisfied. The John Wiley and Operating Engineers decisions suggest, however, that when time limitations and other procedural requirements are made an express part of the arbitration agreement, they become part of the bundle of issues the parties consented to have decided by an arbitrator’s special interpretative ability. Cf. Operating Engineers, 406 U.S. at 490-91, 92 S.Ct. at 1712 (suggesting that if the laches defense is “intrinsic” to — i.e., a part of — the contract, its disposition should be referred to the arbitrator). This suggestion finds support in Arbitration Act policy which counsels that “doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, — U.S. —, —, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983).

There is some support for the proposition that a court may consider a strictly procedural question as to the timeliness of a demand for arbitration in those rare instances where no factual dispute exists and resolution of the issue would preclude all need for arbitration. Cf. John Wiley, 376 U.S. at 558, 84 S.Ct. at 918; Rochester Telephone Corp. v. Communications Wkrs. of Am., 340 F.2d 237, 239 (2d Cir.1965). But we are not confronted with such an instance here. Local 588’s petition claimed a reason for finding it had complied with the timeliness requirements of the Agreement. The petition alleged that Servomation waived any right to assert a time-bar to its arbitration demand by engaging in further discussions; petitioner offered to present evidence in support of its allegation at the original hearing and ultimately presented evidence with its Motion to Alter Judgment. [2] Additionally it may be asserted, though not pressed by these litigants, that the 72 hour time limit does not begin to run until a party receives formal notice of the Committee’s deadlock. An arbitrator would be able to address these factual issues — which involve examining the usual practices of the parties — more readily than the courts. See Rochester Telephone Corp., 340 F.2d at 239 (requiring arbitration of a “[procedural] issue on which the history of the parties’ arbitral dealings might throw significant light”).

Accordingly, we reverse and remand for entry of an order compelling arbitration of the Bransford discharge including any issue as to the timeliness of the notice.

1

. Section 16 of the Agreement provides in relevant part:

If the Committee fails to settle or decide the dispute, the matter may be referred to an impartial arbitrator by either the Employer or the Union and the decision of the impartial arbitrator shall be binding on all the parties. Notice by either party to the other of his desire to place the matter before an impartial arbitrator shall be submitted to the other party in writing within seventy-two (72) hours of notification by the Committee of its inability to decide the matter. In the event neither party notifies the other of the desire for arbitration within the seventy-two (72) hours specified herein, then, and in that case, the matter will have been deemed to have been settled in favor of the party against whom the grievance, dispute or controversy has been brought.

(Emphasis added.)

2

. At the time of the district court’s original denial of Local 588’s petition, the court had only petitioner’s allegation that its demand was timely. We do not, however, fault the petitioner for failing to make an evidentiary showing in the first instance where, as here, the court’s jurisdiction to consider timeliness of the demand was in question. Under these circumstances the petitioner should have been allowed an opportunity to offer additional evidence on the issue. The affidavit ultimately presented by Local 588 in its Motion to Alter Judgment puts the issue of timeliness sufficiently in doubt to require the district court to defer to the arbitrator.