Winery, Distillery & Allied Workers Union, Local 186 v. E & J Gallo Winery, Inc., Franzia Brothers Winery and Bronco Wine Company

E & J Gallo Winery, Franzia Brothers Winery and Bronco Wine Co. (“the Wineries”) discharged nine employees for allegedly engaging in violent strike misconduct. The Union denied that the employees’ conduct was in fact violent and filed grievances claiming violation of the just cause provision of the collective bargaining agreement. The Wineries refused to grieve the discharges, claiming that the Amnesty Clause expressly excluded from arbitration discipline which, in its exclusive judgment, was for violent strike misconduct. We must decide if the parties intended to submit to arbitration the threshold determination whether the conduct was in fact violent. See AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 652 , 106 S.Ct. 1415, 1420 , 89 L.Ed.2d 648 (1986). Because we cannot say with “positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute”, id. at 650 , 106 S.Ct. at 1419 (citing United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583 , 80 S.Ct. 1347, 1352-53 , 4 L.Ed.2d 1409 (I960)), we hold that the Wineries should be compelled to arbitrate whether the conduct was…