The opinion
DAVID A. NELSON, Circuit Judge,
dissenting.
Although no collective-bargaining agreement was in effect when Parrish, Roginski and Stacho were discharged, and no obligation to arbitrate the discharges could have existed as of the time the discharges occurred, it was certainly within the power of the parties to enter into a new contract creating such an obligation retrospectively. The problem, as I see it, is that the parties never did so.
The new collective-bargaining agreement speaks as of July 13, 1988. It was executed on that date, according to Article XXV, and it expressly says that “[t]his agreement shall become effective the 13th day of July, 1988.... ” Id. Neither the principal agreement nor the ancillary agreement accompanying it provides for retroactivity. 1
Only people who were “employees” on July 13 are given any rights under the new agreement, and only people who were “returning to work employees” on July 13 have protection under the ancillary agreement. Because Parrish, Roginski and Sta-cho were not Mail-Well “employees” on July 13, I think they are out of luck.
It was Abraham Lincoln, I believe, who popularized the conundrum about the sheep’s tail. “If you call a sheep’s tail a leg,” Lincoln asked, “how many legs does the sheep have?” The answer, of course, is four; calling a tail a leg does not make it one. If the labor union called the three members of this panel Mail-Well “employees,” similarly, that would not make us employees.
If Parrish, Roginski and Stacho were not in fact “employees” of Mail-Well as of July 13, there is absolutely nothing in the labor contract that makes their claims arbitrable. Arbitrability cannot turn on whether the union asserts that the men had employee status, for if arbitrability could turn on mere assertions, the union’s ipse dixit could make anything in the world arbitra-ble. The question is whether the men were actually employees_and in the absence of an agreement “clearly and unmistakably” giving an arbitrator authority to decide it, this question is one that only the courts can answer. AT & T Technologies v. Communications Workers of America, 475 U.S. 643, 649 , 106 S.Ct. 1415, 1418 , 89 L.Ed.2d 648 (1985). 2
My answer would be that the men were not employees on July 13. They could not have been employees at that point, except, perhaps, in the eyes of the National Labor Relations Board, because they had been fired the day before. They were not just “laid-off” within the meaning of that term *350 as used in Article IX, Section 2; they were fired outright. The firing may have been unlawful under the National Labor Relations Act_and if so, statutory machinery existed for compelling reinstatement_but lawful or not, the firing was a fact. A former employee with a potential right of reinstatement is not a current employee, at least in common usage, and nothing in the new agreement requires that former employees be treated as if they were current employees.
Not a single provision in the agrément uses the term “employees” to refer to people who are not employees as of the time to which the agreement speaks. Article IX, Section 5(a), does not disprove this generalization; it merely says that employees will forfeit their seniority upon the occurrence of any of six events _ one of which is “discharge for cause” _ in the future. Thus if someone who was an employee as of July 13, 1988, were to be discharged for cause on July 14, this provision makes it clear that he would bring no seniority with him if rehired thereafter. The entire section is prospective; it tells current employees that they “shall” forfeit seniority for contingencies that may occur down the road somewhere.
It is true that in Oil, Chemical and Atomic Workers Intl. Union Local No. 4-23 v. American Petrofina Co. of Texas, 820 F.2d 747 (5th Cir.1987), a Fifth Circuit panel held, over the dissent of Chief Judge Clark, that the discharge of an economic striker for alleged violence on the picket line did not exclude the striker from the class of “employees” whose grievances were arbitrable under a subsequent collective bargaining agreement. “[Ujnless [the striker’s] discharge was justified under the law,” the panel majority stated, “he was still an employee_” Id. at 751 . As such, the panel continued, he would have the right to grieve the failure to reinstate him_and a wrongful failure to reinstate would be “a discharge under the new contract. ...” Id. If the refusal to reinstate ultimately proved to have been justifiable, on the other hand, the panel thought that the issue would still have been arbitrable, even though the arbitrator would be required to rule against the so-called “employee.”
It did not seem to trouble the Fifth Circuit panel that if only the grievances of “employees” are arbitrable under the new contract, arbitration of the grievance of a person who proves not to have been an employee would be arbitration of a grievance that by definition is not arbitrable. This anomaly would not have troubled me very much either, I confess, but for the line of Supreme Court decisions that culminated in AT & T Technologies. The issue presented in AT & T Technologies was whether the arbitrability of a grievance filed under a collective-bargaining agreement contract was or was not to be determined by the grievance and arbitration provisions in the contract_i.e., whether the question of arbitrability was properly left to the arbitrator. “Unless the parties clearly and unmistakably provide otherwise,” the Supreme Court held, “the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.” Id. at 649, 106 S.Ct. at 1418 . But if arbitrability is not to be decided by the arbitrator, absent a contract clearly providing otherwise, the Fifth Circuit’s Oil, Chemical and Atomic Workers ruling seems very hard to justify_for what the court did, in that case, was to assume the jurisdictional predicate for arbitration, and then let the arbitrator decide whether the assumption was correct.
The Oil, Chemical and Atomic Workers case had come before the Fifth Circuit once before, and in an opinion reported at 759 F.2d 512 (5th Cir.1985), the court had held that “[w]hether this dispute is arbitrable under the new contract is an issue that the parties must submit in the first instance to the arbitrator.” Id. at 515 . The Supreme Court vacated the decision and sent the case back for reconsideration in light of AT & T Technologies. Although the Fifth Circuit obviously recognized, on reconsideration, that the original rationale would not pass muster under AT & T Technologies, the new rationale still, in essence, left the question of arbitrability to the arbitrator. The Fifth Circuit’s second decision would *351 thus seem to suffer from the same deficiency as the first one.
In Peerless Importers, Inc. v. Wine, Liquor & Distillery Workers Union Local One, 903 F.2d 924 (2d Cir.1990), a unanimous Second Circuit panel found the reasoning of the Fifth Circuit's second opinion unpersuasive. If a new collective-bargaining agreement does not, by its terms, provide for arbitration of the claim of an employee discharged prior to the effective date of the new agreement, the Second Circuit held, it makes no difference whether the discharged employee asserts that he is entitled to reinstatement; the claim is not arbitrable unless the contract says it is arbitrable. 3 The Peerless contract provided that “no non-probationary employee shall be discharged without good or just cause” _and as the Second Circuit said, speaking through Judge Jon Newman,
“If [the striker] was validly discharged on November 10, he was not an ‘employee’ on November 16, when the collective bargaining agreement became effective and reinstatement was refused. To compel arbitration on the basis of this provision would permit any former employee, no matter how long ago dismissed, to demand ‘reinstatement’ under the term of a new collective bargaining agreement and obtain arbitration of the reinstatement ‘dispute.’ ” Peerless, 903 F.2d at 928 .
Quoting United States of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 , 80 S.Ct. 1347, 1353 , 4 L.Ed.2d 1409 (1960), Judge Newman went on to say that
“... the arbitration clause of a new agreement may not be used to reach back to cover disputes arising before the agreement was executed, unless such pre-existing disputes are brought within the scope of the clause. We do not believe the arbitration clause of the new agreement is ‘susceptible of an interpretation that covers the asserted dispute.’ ” Peerless, id.
The arbitration clause in the case at bar, similarly, is simply not susceptible of an interpretation that covers anyone other than “employees.” Because Parrish, Ro-ginski and Stacho were not “employees,” I would reverse the order in which the district court directed Mail-Well to proceed as if they were employees.
. The failure to provide for retroactivity is particularly significant in light of Article XXIV, Section 1, which includes this acknowledgment:
"The parties acknowledge that during the negotiations prior to the signing of this Agreement they had the unlimited right to make proposals with respect to any matter which could be the subject of collective bargaining, and that the understandings and agreements arrived at by the parties in good faith and after the exercise of that right and opportunity are set forth herein.”
. Although arbitrability issues are sometimes submitted to an arbitrator by agreement, see Vic Wertz Distributing Co. v. Teamsters Local 1038, 898 F.2d 1136 , 1140 (6th Cir.1990), and Interstate Brands Corp. v. Chauffers, Teamsters, Warehousemen and Helpers Local Union No. 135, 909 F.2d 885, 890 (6th Cir.1990), that was not done here; the arbitrability issue was reserved for initial decision by the court in this case, and there can be no doubt that the issue is for the courts to decide. Vic Wertz, id.; United Steelworkers v. Timken Co., 717 F.2d 1008, 1012 (6th Cir.1983).
. The district court opinion in Peerless discloses that the new collective-bargaining agreement said, as paraphrased by the court, that “any complaint arising under the agreement [and during its term] involving questions of interpretation or application shall be submitted to arbitration." 712 F.Supp. 346, 350 (S.D.N.Y.1989) (emphasis supplied). The quoted language is not unlike that of Article XII, Section 2(a) of the Mail-Well agreement, which provides for arbitration of “a dispute concerning the interpretation or application of the specific terms of this agreement.” If the Peerless arbitration clause did not provide for arbitration of the former employee’s claim, notwithstanding that the claim involved a question of the interpretation or application of the terms of the agreement, I am not sure I see why the Mail-Well arbitration clause should be thought to have a broader effect. In both cases, of course, the claims allegedly arose during the term of the new agreement, because in both cases the new agreements were said to have created a duty to reinstate.