United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union v. Noranda Alumina, LLC

Filing 52

ORDER denying 31 Motion for Summary Judgment; granting 32 Motion for Summary Judgment; denying 32 Motion for Attorney Fees. Signed by Judge Nannette Jolivette Brown. (jrc) Modified on 2/27/2015 (jrc).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STEEL, PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY, ALLIED
INDUSTRIAL AND SERVICE WORKERS
INTERNATIONAL UNION

CIVIL ACTION

VERSUS

NO. 13-5059

NORANDA ALUMINA, LLC

SECTION: “G”(3)

ORDER AND REASONS
In this litigation, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union, AFL-CIO (“USW”) has brought suit to seek
an order to compel arbitration against Defendant Noranda Alumina, LLC (“Noranda”), pursuant to
Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185. Presently
pending before the Court are USW’s “Motion for Summary Judgment”1 and Noranda’s “Motion for
Summary Judgment and Motion for Fees.”2 Having considered the complaint, the parties’ briefs, the
record, and the applicable law, the Court will deny USW’s motion, grant-in-part Noranda’s motion,
and deny-in-part Noranda’s motion.
I. Background
A. Factual Background
In its complaint, Plaintiff USW contends that it is a “part[y] to a collective bargaining
agreement” (“CBA”) with Noranda that was effective from October 1, 2005 to September 30, 2010.3
According to USW, Kent Haydel, a “member of the bargaining unit represented by USW,” worked
1

Rec. Doc. 31.

2

Rec. Doc. 32.

3

Rec. Doc. 1 at p. 2.

for Noranda until May 1, 2006, “at which time he suffered a work-place injury and went out on
Workers’ Compensation,” which he received until May 4, 2010.4 USW contends that Haydel
subsequently “filed for and received a disability retirement pension from Noranda,” but was only
credited with “one year of pension service credit” during the time in which he was off work and on
Worker’s Compensation.5 USW maintains that Haydel should receive credit for all four years he was
“out on Worker’s Compensation,” pursuant to Section 9(d)(1)(c) of the CBA.
USW claims that it filed a grievance on Haydel’s behalf challenging “Noranda’s failure to
grant him pension credit for three of the four years he was out on Worker’s Compensation,”
whereupon the parties were unable to resolve the dispute and USW “appealed the matter to
arbitration.”6
B. Procedural Background
USW filed a complaint in this matter on July 12, 2013, seeking “judgment requiring Noranda
to arbitrate” its grievance, as well as costs and attorney’s fees.7 On August 12, 2013, Noranda filed
a “Motion to Dismiss.”8 This Court denied the motion on March 18, 2014, concluding that Noranda
relied in its motion upon documents “not specifically cited or relied upon” by USW in its complaint,
or bearing an excessively “attenuated” relationship with the complaint.9 Referring only to the

4

Id.

5

Id. at pp. 2–3.

6

Id. at p. 3.

7

Rec. Doc. 1.

8

Rec. Doc. 6.

9

Rec. Doc. 26 at pp. 18–20.

2

pleadings, “as must be done in a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6),” the Court held that “USW has sufficiently alleged a cause of action.”10
Noranda filed an answer on April 22, 2014,11 contending that although Article 10 of the CBA
“sets forth a procedure for the adjustment of grievances,” which “allows either party to appeal a
grievance . . . if the grievance is covered by Article 10,” the present dispute is not governed by
Article 10 of the CBA.12 Noranda further asserts that Article 9 of the CBA has no “impact . . . on the
calculation of an employee’s ‘Benefit Service’ under the Pension Plan” (“Plan”), and denies that it
“improperly calculated [Haydel’s] ‘Benefit Service.’”13 Finally, Noranda asserts several affirmative
defenses.14
Specifically, Noranda contends that: (1) USW’s complaint “fails to state a claim or cause of
action upon which relief may be granted;” (2) USW’s “claim is barred by the applicable statute of
limitations;” (3) USW’s “claim is barred to the extent Plaintiff and/or [Haydel] failed to exhaust his
administrative remedies under the Pension Plan;” (4) USW’s “claims are barred by the doctrine of
waiver, estoppel, laches, and/or election of remedies;” (5) “the terms of the Pension Plan granting
each Plan fiduciary ‘absolute discretionary authority’ which is ‘final, conclusive and binding’
renders Plaintiff’s dispute involving pension benefits of the Pension Plan non-arbitrable.15

10

Id. at p. 20.

11

Rec. Doc. 30 at p. 2.

12

Id. at p. 2. Noranda maintains that USW “is not entitled to bring a grievance under Article 10 for complaints
or disputes involving the pension plan.” Id. at p. 3.
13

Id. at p. 3.

14

Id. at pp. 4–6.

15

Id.

3

USW filed the instant “Motion for Summary Judgment” on May 7, 2014.16 On May 19, 2014,
Noranda filed a “Motion for Summary Judgment and Motion for Fees.”17 Both motions were set for
submission on June 11, 2014.18 Noranda filed a response to USW’s motion on June 3, 2014.19 That
response was marked deficient for failure to comply with Local Rule 56.2.20 USW filed a response
to Noranda’s motion on June 5, 2014.21 On June 6, 2014, with leave of Court, USW filed a reply to
Noranda’s deficient June 3, 2014 opposition.22 On June 9, 2014, Noranda filed an opposition to
USW’s motion that complies with Local Rule 56.2, thereby timely curing the deficiency identified
by the Clerk of Court. Finally, on June 12, 2014, with leave of Court, Noranda filed a response to
USW’s opposition to its motion for summary judgment.23
On August 28, 2014, USW and Noranda filed a Proposed Pre-Trial order in which they
represented that “there are no material facts . . . genuinely in dispute,” meaning that this case

16

Rec. Doc. 31.

17

Rec. Doc. 32.

18

Rec. Doc. 31; Rec. Doc. 32.

19

Rec. Doc. 33.

20

Local Rule 56.2 provides that “any opposition to a motion for summary judgment must include a separate
and concise statement of the material facts which the opponent contends present a genuine issue. All material facts in
the moving party’s statement will be deemed admitted, for purposes of the motion unless controverted in the opponent’s
statement.”
21

Rec. Doc. 37.

22

Rec. Doc. 40.

23

Rec. Doc. 44.

4

“presents a pure question of law.”24 The Court, in turn, canceled the Pre-Trial Conference and trial
date in this matter.25
II. Parties’ Arguments
A.

USW’s “Motion for Summary Judgment”26
1.

Presumption of Arbitrability

In support of its “Motion for Summary Judgment,” USW first asserts that “the grievance is
substantively arbitrable because there is no ‘most forceful’ evidence showing [that] the arbitration
provision does not apply.”27 On this point, USW contends that “it is well-settled that arbitration is
the ‘preferred method of resolving disputes arising during the term of a [CBA],” as evidenced by
several United States Supreme Court cases affirming a “clear statutory preference favoring the
arbitration of labor disputes.”28 According to USW, “[i]t is the Court’s role to decide the threshold
issue of whether the parties have agreed to submit a particular dispute to arbitration,” not to decide
“the potential merits of the underlying claims.”29 Moreover, USW argues, the existence of a contract
with an arbitration clause creates a “presumption of arbitrability,” such that arbitration should not
be denied unless “it may be said with positive assurance” that the arbitration clause does not cover
the dispute.30 In other words, USW argues, the presumption in favor of arbitrability may only be

24

Rec. Doc. 50 at p. 12.

25

Rec. Doc. 51.

26

Rec. Doc. 31.

27

Rec. Doc. 31–1 at p. 5.

28

Id. at p. 6.

29

Id. at p. 7.

30

Id. at pp. 7–8.

5

rebutted by a showing of (1) “the existence of an express provision excluding the grievance from
arbitration,” or (2) “the ‘most forceful evidence’ of a purpose to exclude the claim from
arbitration.”31
a.

Applicability of Presumption

USW asserts that “the presumption of arbitrability applies here because the CBA contains
a broad arbitration provision” in Article 10(A), which defines “arbitrable grievances” as those
“aris[ing] between the Company and the Union as to the meaning or application of the provisions
of this Agreement, or as to any question relating to the wages, hours of work, or other conditions
of employment of any employee.”32 Moreover, USW contends, the parties “expressly agreed that
the role of the arbitrator would be to ‘interpret, apply, or determine compliance with the provisions
of the Agreement, Memoranda, Supplements, etc., insofar as shall be necessary to the determination
of grievances appealed to the arbitrator,’ [and that] [t]he arbitrator’s decision ‘shall be final and
binding on the parties.’”33
In this case, USW contends, “the grievance at issue alleges [that] the Company violated
Article 9(D)(1)(c) of the CBA by ignoring a portion of the time Haydel was absent from work while
receiving Workers’ Compensation when calculating his pension benefits,” a dispute that “plainly
concerns ‘the meaning or application of the Agreement,’” and therefore falls within the scope of
Article 10(A) of the CBA.34 Further, USW asserts, “it is well-established that pension benefits, as

31

Id. at p. 8.

32

Id.

33

Id. at pp. 8–9.

34

Id. at p. 9.

6

a form of deferred compensation, are both ‘wages’ and ‘conditions of employment,’” making the
instant issue about pension benefits a question “relating to the wages, hours of work, or other
conditions of employment” within the meaning of the CBA’s arbitration provision.35
b.

Exclusion from Arbitration

USW asserts that “no express provision excludes [this grievance] from arbitration,” such as
would be required to “prevent this grievance from being arbitrable.”36 Additionally, USW argues,
since no express language exempts the present dispute from the CBA’s arbitration clause, Noranda
must—but cannot—“bring forth ‘most forceful’ evidence that the parties intended [that] this dispute
would not be subject to arbitration.”37
Specifically, USW argues that Noranda “cannot rely on anything in Article 11 of the Plan
to show that the Union and the Company did not intend for [this dispute] to be resolved by
arbitration under the Plan,” since “Section 11.17 of the Plan plainly states that [t]he provisions of
Article 11 shall not apply to the extent any such provision conflicts with an agreement with a
collective bargaining unit,” meaning that any provisions of the Plan that conflict with the CBA must
yield to the provisions of the CBA, including the arbitration provision in Article 10(A).38 Therefore,
USW asserts, “the portions of Article 11 of the Plan purportedly giving Plan fiduciaries absolute
authority to interpret Plan provisions” must give way to the CBA’s arbitration procedure.39

35

Id.

36

Id.

37

Id. at p. 10.

38

Id. at pp. 10–11.

39

Id. at p. 11.

7

USW further argues that the present case is distinguishable from cases where “benefit plan
provisions vesting discretion in plan administrators” were held to indicate “an agreement to exclude
those plan provisions from contractual grievance and arbitration provisions,” because the language
in Section 11.17 “explicitly trumps the Plan provisions on which the Company relies,” preventing
Noranda from presenting “the most forceful evidence” that the parties intended to exclude the
present grievance from the arbitration provisions.40
2.

Timeliness

USW next asserts that “this action is timely because Noranda first unequivocally refused to
arbitrate on January 16, 2013.”41 USW argues that “[a] cause of action to compel arbitration accrues
when one party clearly refuses to arbitrate the dispute,” and that, once accrued, must be sued upon
within six months.42 According to USW, refusal “must be unequivocal, whether by words used or
by unambiguous conduct.”43 In this case, USW argues, Noranda “first indicated . . . that it would not
arbitrate the dispute in a meeting between [USW] and [Noranda] on January 16, 2013,” at which
Noranda “expressed its position that issues concerning an employee’s pension benefit service credit
are not subject to the grievance-arbitration process established by the CBA.”44 Therefore, USW
argues, its cause of action accrued on January 16, 2013, making the filing of the instant lawsuit on
July 12, 2013 timely.45

40

Id.

41

Id. at p. 12.

42

Id.

43

Id.

44

Id.

45

Id.

8

USW maintains that Noranda’s “April 12, 2012 letter to Local Union President Delaneuville”
did not amount to an “unequivocal refusal to arbitrate,” because that letter only stated that Haydel’s
“pension benefit service was calculated as provided by Article 2 of the Plan,” and cited “Labor
Agreement Article 19,” an article that purportedly “refers to Defined Benefit pension, Defined
Contribution, 401(k) retirement savings plan, VEBA and Supplement Unemployment benefits,”
wherein Deleneuville “will find the reference to the Plan documents.”46 According to USW, the
letter “nowhere mentioned how Haydel or the Union were to address disputes over Haydel’s pension
service credit, never stated that disputes relating to pension service credit were not subject to the
CBA’s grievance and arbitration procedures,” and finally “did not express Noranda’s unwillingness
to address such a grievance under the CBA’s arbitration procedures.”47 Therefore, USW contends,
the April 12, 2012 letter does not “even imply that [Noranda] would refuse to arbitrate the
dispute.”48
Indeed, USW argues, Noranda’s “position,” as stated in the letter, “was entirely consistent
with a position that the CBA’s grievance-arbitration provisions would govern the resolution of the
dispute over Haydel’s pension service credit,” and “would be quite reasonable, since Section 11.17
of the Plan states that the CBA provisions prevail over inconsistent provisions in Article 11.49
Moreover, USW contends, the letter’s “reference to Article 19, the provision incorporating the Plan

46

Id. at p. 13.

47

Id.

48

Id.

49

Id.

9

into the CBA, also suggests that the Company viewed the dispute as one governed by the CBA and
its grievance and arbitration procedures.”50
Finally, USW asserts that Noranda’s “other correspondence” with it “also undermines its
current position that it unequivocally refused to arbitrate on April 4, 2012.”51 According to USW,
Noranda’s counsel sent a letter on February 1, 2013 in which it “twice identified the January 16,
2013 meeting as when [Noranda] had stated its position that disputes under the Plan are not
substantively arbitrable.”52 Indeed, USW maintains, Noranda’s counsel mentioned the April 12,
2012 letter but “never claimed that” the author of that letter “had notified [USW] that Noranda
would not arbitrate the dispute.”53 Further, USW argues, a letter subsequently sent by a Noranda
employee referenced “meetings” and the February 1, 2013 letter, but omitted any mention of the
April 4, 2012 letter, thereby “implictly admit[ting]” that the April 4, 2012 letter was “not a refusal
to arbitrate.”54
3.

Attorney’s Fees

USW asserts that it is entitled to attorney’s fees, because courts may award attorney’s fees
where “the Company acted frivolously or in bad faith,” in cases arising under 29 U.S.C. § 185.55
USW contends that it is entitled to attorney’s fees here because “on the face of Article 10 of the
CBA, questions relating to the meaning or application of the CBA or to wages and conditions of

50

Id.

51

Id.

52

Id. at pp. 13–14.

53

Id. at p. 14.

54

Id.

55

Id.

10

employment,” including pension benefits, which are “clearly included,” are expressly subject to
arbitration.56 Noranda’s “position that Article 11 of the Plan removes disputes involving the Plan
from the [CBA’s] dispute resolution procedure” is frivolous, USW argues, “because Section 11.17
of the Plan clearly contradicts” it.57 USW argues that Noranda’s timeliness argument is also
frivolous, because the April 4, 2012 letter “plainly” did not inform USW of Noranda’s refusal to
arbitrate, a conclusion supported by “Noranda’s decisions not to mention” the letter “when listing
the times Noranda had told the [USW] it would not arbitrate this dispute.”58
B.

Noranda’s Opposition59
1.

Exclusion from Arbitration

In opposition to USW’s motion, Noranda asserts that the “presumption of arbitrability gives
way to an express provision excluding a dispute from arbitration,” including where, as here,“[1] [the
CBA] has a standard grievance and arbitration procedure . . . [2] [the CBA] incorporates by
reference the terms of the benefits plan . . . [3] [the Plan] makes the benefit determinations of the
Plan Administrator final . . .[and] [4] “the Plan Administrator has the sole discretion to determine
all matters relating to eligibility, participation[,] as well as the operation of the plan, including all
benefit eligibility and benefit amount determinations.”60 Noranda argues that “the facts supporting
the non-arbitrability of the parties’ pension dispute are more compelling here than they were” in the

56

Id. at pp. 14–15.

57

Id. at p. 15.

58

Id.

59

Rec. Doc. 41.

60
Id. at pp. 8–10 (citing Local Union No. 4-449, Oil, Chemical, and Atomic Workers Union, AFL-CIO v.
Amoco Chemical Corp., 589 F.2d 162 (5th Cir. 1979) (per curiam)).

11

Fifth Circuit’s decision in Local Union No. 4-449, Oil, Chemical, and Atomic Workers Union, AFLCIO v. Amoco Chemical Corp. (“Amoco”), cited by Noranda in support of the propositions just
stated, because here, Noranda’s Plan “explicitly allow[s] further review beyond the determinations
made by the Plan Administrator.”61 Noranda contends that, in addition to the Fifth Circuit in Amoco,
other circuits have held that “these types of review procedures expressly exclude from arbitration
grievances challenging decisions made by a plan administrator.”62
a.

Conflict with the CBA

Noranda further argues that “no conflict exists between the Pension Plan and [the CBA],”
contrary to USW’s assertions on this point, because the arbitration provision present in Article 10
“only applies to those disputes that fall within the scope of Article 10 and are not otherwise
exempted from Article 10.”63 According to Noranda, “the language contained in the Noranda SPD
and Pension Plan clearly and unambiguously exempt [sic] pension disputes from application of
Article 10 of the [CBA],” meaning that “there simply can be no conflict between Article 11 of the
Pension Plan and Article 10 of the Labor Agreement.”64 Noranda asserts that any asserted conflict
between Article 11 of the Pension Plan and the CBA’s arbitration agreement “would have existed”
in the contracts at issue in the Fifth Circuit’s Amoco decision, but that the Fifth Circuit found no
such conflict, but rather an “exemption from arbitration.”65
Finally, Noranda asserts that USW “fails to recognize” that both the Pension Plan and the
61

Id. at p. 11.

62

Id. at pp. 11–13.

63

Id. at p. 17.

64

Id. at pp. 17–18.

65

Id. at p. 18.

12

Summary Plan Description (“SPD”) have been incorporated by reference into the CBA.66 Noranda
argues that the SPD, like the Pension Plan, “contains broad language expressly exempting Pension
Plan disputes from the arbitration agreement.”67 Noranda asserts that although “a provision of the
Noranda SPD . . . states that if there is a conflict between the Pension Plan and the SPD[,] the terms
of the Pension Plan control,” USW “fails to cite any conflict between the Pension Plan and the
SPD.”68 “Indeed,” Noranda argues, “the Pension Plan is entirely consistent with the SPD and
expressly excludes pension disputes from the arbitration provision of the [CBA].”69
b.

Article 9 of the CBA

Noranda further asserts that USW “attempts to contort Haydel’s pension dispute into one that
is somehow impacted by the seniority provisions contained in Article 9 of the [CBA],” because that
Article deals with “plant seniority,” while “this case is undisputedly about a pension determination,”
a subject that has “nothing to do with an employee’s ‘benefit service’ under the Pension Plan.”70
Noranda asserts that USW’s citation to the definition of “continuous service” in Article 9 is
inapposite, since that term is “synonymous with the term ‘seniority,’” and USW “cites absolutely
no language that even remotely suggests that the definition” of the term “should be used to

66

Id. at p. 19.

67

Id. Specifically Noranda asserts that the SPD “vests the Plan Administrator with ‘sole discretion to determine
all matters relating to eligibility, participation as well as operation of the plan, including all benefit eligibility and benefit
amount determinations,”grants the Plan Administrator “exclusive discretion to make decisions, determinations,
interpretations, and constructions with respect to the administration and operation of the plan,” and provides that “all
decisions of the Plan Administrator shall be final and binding on all parties.” Id.
68

Id.

69

Id.

70

Id. at pp. 13–14.

13

determine how an employee’s pension is calculated under the Pension Plan.”71 Indeed, Noranda
argues, “Section 2.01 of the Pension Plan provides its own separate and distinct definition of the
term ‘continuous service,’” and states that this definition “shall be used for the purpose of
determining [an employee’s] Vesting Service and Benefit Service under the plan.”72 Therefore,
Noranda argues, USW’s citation of Article 9 is a “bald attempt to bootstrap what is clearly a pension
dispute into a dispute that is somehow impacted by the seniority provisions of the Labor
Agreement.”73
c.

Pension Plan

Noranda asserts that “even if Article 9 is relevant to the calculation of a participant’s
pension, the language of the Noranda Pension Plan and SPD would nonetheless give the Plan
Administrator sole discretion to make Article 9 seniority determinations in connection with a
pension dispute,” since the Noranda SPD and Pension Plan “vest with the Plan administrator the
‘sole discretion to determine all matters relating to eligibility, participation, as well as the operation
of the plan, including all benefit eligibility and benefit amount determinations.”74 According to
Noranda, this grant of discretion “necessarily encompasses determinations regarding a participant’s
seniority, to the extent relevant to a participant’s pension calculation.”75
Noranda argues that the United States Court of Appeals for the Sixth Circuit’s Teamsters
Local Union No. 783 v. Anheuser-Busch, Inc. is “directly on point” with the present case, because
71

Id. at p. 14.

72

Id.

73

Id.

74

Id. at p. 15.

75

Id.

14

in that case, the Sixth Circuit “rejected the union’s argument that its grievance was subject to
arbitration because it was related to the seniority provisions of the collective bargaining agreement
rather than the terms of the pension plan,” because the Pension Plan established “alternative dispute
resolution provisions” establishing that “a grievance under . . . [the seniority provisions] of the CBA
seeking a determination of rights under the Pension Plan would be expressly excluded from the
arbitration clause.”76 Further, Noranda argues, the Sixth Circuit rejected the union’s assertion “that
the grievance arose solely under the seniority provisions of the collective bargaining agreement,”
because the union’s own complaint asserted that “the underlying subject of the grievance was
pension rights under the Pension Plan.”77 Noranda argues that here, as in Anheuser Busch, “the
Noranda Pension Plan and SPD make absolutely clear that all . . . disputes related to the pension plan
are excluded from arbitration.”78
d.

Past Practice

Noranda also asserts that “past practice confirms that the pension dispute is not arbitrable,”
because neither USW nor any of its members “ha[ve] ever grieved a pension benefit determination
at any point from the time Noranda first obtained an ownership interest in the Gramercy refinery on
October 1, 2004 until the present,” even though more than 80 of those members applied for a
pension benefit since January 1, 2005, and more than 50 members have commenced pension benefits
in the past 3.5 years, all “in accordance with the procedures established in the Noranda SPD and

76

Id. at pp. 15–16.

77

Id. at pp. 16–17.

78

Id. at p. 17.

15

Pension Plan.”79 Accordingly, Noranda asserts, “the position taken by Plaintiff in this case is entirely
inconsistent with the position it and its members have taken for the past 9.5 years,”80 demonstrating
that USW’s complaint, filed after Haydel “submitt[ed] an application to the Plan Administrator for
a disability pension,” is “nothing other than a bald attempt at forum shopping.”81
2.

Timeliness

Noranda next argues that USW’s claim is untimely, because USW “challenged Noranda’s
calculation of Haydel’s benefit service on April 3, 2012,” asserting “that the issue was governed by
the terms of the [CBA] and, in particular, Article 9 of the [CBA].”82 Noranda contends that in its
April 4, 2012 response, it “pointed out that the calculation of [Haydel’s] benefit service was
governed by the terms of the Pension Plan,” necessarily implying that “the determination was not
controlled by the grievance procedure established in the Labor Agreement.”83 According to Noranda,
“there is no other rational manner in which to interpret Noranda’s April 4, 2012 letter,” since “the
specific language utilized in the Noranda SPD and Pension Plan ‘clearly’ and ‘obviously excludes
arbitration for grievances concerning such subject matter,” just as did the pension plan at issue in
Amoco.84 Noranda further argues that its subsequent communication, discussed by USW in support
of its motion, does not support its assertion that Noranda did not refuse to arbitrate until after April

79

Id. at p. 20.

80

Id.

81

Id.

82

Id. at pp. 21–22.

83

Id. at p. 22.

84

Id.

16

4, 2012, because the April 4, 2012 letter amounted to a refusal to arbitrate.85 Therefore, Noranda
asserts, USW’s claim is untimely.86
3.

Fees

Finally, Noranda asserts that USW is “not entitled to an award of fees,” because USW’s
“claims were brought in bad faith and are meritless,” and because USW, “rather than Noranda, has
pursued this litigation by using vexatious litigation practices.”87 Moreover, Noranda argues, “even
assuming that USW’s arguments have merit . . . the only evidence that [USW] cites in support of
its request for fees is the fact that Noranda refused to arbitrate the grievance.”88 On this point,
Noranda argues that its actions “were fully supported” by Fifth Circuit precedent, and, in any event,
a refusal to arbitrate “cannot, as a matter of law, support a claim for fees.”89
C.

USW’s Reply90
1.

Amoco Decision

In further support of its motion, USW contends that the Fifth Circuit’s Amoco decision, cited
by Noranda, “does not control” the present issue, because the Plan here “contains language, found
nowhere in Amoco, indicating that the parties intended that grievances like [the present grievance]

85

Id. at p. 23.

86

Id.

87

Id. at p. 24.

88

Id.

89

Id.

90

Rec. Doc. 40. With leave of Court, USW filed its reply to Noranda’s opposition before Noranda refiled its
opposition along with the required Local Rule 56.2 statement, which the opposition lacked when originally filed. See
Rec. Doc. 33.

17

be arbitrable.”91 USW asserts that although the Fifth Circuit found in Amoco that “there was no
ambiguity as to the intent of the Agreement to exclude grievances dealing with sickness and
disability benefits from arbitration,” this Court “cannot draw such a conclusion because Section
11.17 of the Plan provides that the Plan language on which [Noranda] relies ‘shall not apply to the
extent any such provision conflicts with [the CBA].’”92
Here, USW asserts, “the conflict between the CBA and Section 11.08 of the Plan is obvious,”
since USW filed a grievance asserting a violation of Haydel’s seniority rights under Article
9(d)(1)(c) of the CBA.93 USW contends that although its grievance “indirectly challenges a benefit
determination,” it also implicates the CBA, such that it cannot be both resolved by arbitration
(pursuant to the CBA) and “‘conclusive[ly] decided by Plan administrators,” as provided in Section
11.08 of the Plan.94 In Amoco, USW argues, the Fifth Circuit “resolved a similar tension by inferring
that the parties intended to remove benefit disputes from arbitration.”95 Here, by contrast, “no such
inference is appropriate,” since “the parties created an explicit rule for this situation in Section 11.17
of the Plan,” whereas such language was absent in Amoco.96 Likewise, USW argues, AnheuserBusch lacked an “analogue to the unique language in Section 11.17,” making the case
distinguishable.97

91

Id. at p. 2.

92

Id. (citations and internal quotation marks omitted).

93

Id.

94

Id. at pp. 2–3.

95

Id. at p. 3.

96

Id.

97

Id.

18

2.

SPD

USW next contends that “the [SPD] cannot override Section 11.17 of the Plan,” since: (1)
it is “an attempt to ‘help explain the main provisions of the plan in simple and understandable
language’” that “has no independent legal effect,” and “is not to be considered a substitute for the
plan document,” and (2) states that “[i]f there is ever a conflict between this summary and the plan
document or there is a need for legal interpretation of the plan, the official plan document
governs.”98 Therefore, USW argues, “the SPD cannot nullify the effect of Section 11.17 of the
Plan.”99
3.

Arguments on the Merits

Finally, USW argues that “Noranda should save its arguments on the merits for the
arbitrator,” since “the question whether the parties’ use of the term ‘continuous service’ in the CBA
is as the company argues, entirely separate from their use ‘continuous service’ in the Plan is to be
decided by an arbitrator.”100 According to USW, the parties “expressly agreed that the arbitrator
could ‘interpret, apply or determine compliance with the provisions of this Agreement, Memoranda,
Supplements, etc., insofar as shall be necessary to the determination of grievances appealed to the
arbitrator,” allowing the arbitrator to “consider the plan and examine how its provisions interact with
the language in Article 9(D)(1)(c) of the CBA.”101 USW asserts that “Noranda will have every
opportunity to argue to the arbitrator that it did not violate Article 9(D)(1)(c),” while “[t]he only

98

Id. at pp. 3–4.

99

Id. at p. 4.

100

Id.

101

Id.

19

item for the Court’s decision is whether any possible interpretation of the parties’ agreements would
allow [this dispute] to be submitted to arbitration.” USW maintains that “Section 11.17 of the Plan
shows that this was the parties’ intent.”102
D.

Noranda’s “Motion for Summary Judgment and Motion for Fees”103
1.

Exclusion from Arbitration

In its “Motion for Summary Judgment and Motion for Fees,” Noranda initially asserts that
“[w]hether the grievance is arbitrable is a matter for judicial determination,” and that “[e]ven in
circumstances where there is a presumption of arbitrability, a matter is not arbitrable if ‘the
arbitration clause is not susceptible of an interpretation that covers the asserted dispute,’” such as
is the case where an express provision excludes a dispute from arbitration.104
As it did in opposition to USW’s motion, Noranda asserts that the Fifth Circuit’s Amoco
decision controls the issue presently before the Court, since “[t]here is no material difference
between the terms of the [CBA] and Pension Plan applicable here . . . [and] the [CBA] and benefits
plan that were applicable in Amoco.”105 Noranda contends that its Plan “goes even further” than the
plan at issue in Amoco, in that it allows for further review “beyond the determination made by the
Plan Administrator,” making the facts at issue here “more compelling” than in Amoco.106 Noranda
also asserts that several United States Courts of Appeals have held that review procedures such as

102

Id. at p. 5.

103

Rec. Doc. 32.

104

Id. at p. 10.

105

Id. at p. 12.

106

Id.

20

those at issue in this case “exclude from arbitration grievances challenging decisions made by a plan
administrator.”107
a.

Conflict with the CBA

Noranda argues that “there is no conflict between the Noranda Pension Plan and the [CBA],”
because the arbitration clause present in Article 10 of the CBA “only applies to those disputes that
fall within the scope of Article 10,” and because the SPD and Pension Plan “clearly and
unambiguously exempt pension disputes from application of Article 10 of the [CBA],” just like the
agreements at issue in Amoco.108
b.

Past Practice

Noranda contends that “the parties’ past practice confirms that the pension dispute is not
arbitrable,” because many USW members have applied for and commenced pension benefits “in
accordance with the procedures established in the Noranda SPD and Pension Plan,” demonstrating
that the present litigation is an “attempt at forum shopping.”109
2.

Timeliness

As it did in opposition to USW’s motion, Noranda contends that “[USW’s] claim is
untimely,” because a six-month limitations period applies to actions to compel arbitration pursuant
to Section 301 of the LMRA and because Noranda refused to arbitrate in its April 4, 2012 letter,
which preceded the initiation of the present litigation by more than six months.110

107

Id. at pp. 13–14.

108

Id. at p. 15.

109

Id. at p. 16.

110

Id. at pp. 18–19.

21

3.

Fees

Noranda also urges the Court to award attorney’s fees to it “pursuant to the Court’s inherent
equitable powers,” because, “[a]lthough there is no statutory right to attorney’s fees to a prevailing
party under Section 301 of the [LMRA],” the Fifth Circuit has held that parties may recover
attorney’s fees in Section 301 actions, and district courts have awarded fees “when an opponent has
acted in bad faith.”111
Here, Noranda asserts, an award of fees is warranted because USW “entirely ignores the
well-established and longstanding Fifth Circuit precedent that controls the outcome of this case,”
and represents that no express provision of the CBA excludes the present dispute from arbitration,
notwithstanding “the fact that the Pension Plan—which has been incorporated by reference in the
[CBA]—includes language that was identical in all material respects to the plan that had been
incorporated into the Amoco collective bargaining agreement.”112 Fees are also warranted here,
Noranda asserts, because USW’s “suggestion that this case has anything to do with the ‘seniority’
provisions of the [CBA] is grossly misleading,” while its “continuous characterization of this case
as a ‘seniority dispute’ verges on fraudulent.”113 Additionally, Noranda asserts, fees are appropriate
here because USW argues that none of Noranda’s cited cases control the present issue, and because
USW makes the “misleading” argument that the plan at issue in Amoco “did not have language that
was similar to that found in Section 11.17 of the Pension Plan.”114 According to Noranda, “it is not

111

Id. at p. 19.

112

Id. at p. 20.

113

Id.

114

Id. at pp. 21–22.

22

possible to determine [from the Amoco decision], whether language similar to Section 11.17 was
included within the respective plans.”115 Nonetheless, Noranda asserts, “[i]t is just as likely that
similar language was included within such plans,” but since “there was clearly no conflict” between
the plan and the CBA, “it was unnecessary to address such language within the court’s opinion.”116
“Finally,” Noranda argues, “[USW] has engaged in nothing but vexatious litigation
practices” by refusing to “stipulate to the language of both the Labor Agreement and the Plan and
further stipulate that there is no material fact genuinely in dispute,” thereby “unnecessarily creating
a dispute involving such documents.”117 According to Noranda, “[t]he only reason for engaging in
these practices is to increase the costs of litigating what should otherwise have been a relatively
straightforward matter,” requiring the parties to undertake efforts to authenticate “many exhibits
which are likely identical.”118
E.

USW’s Opposition119
1.

Exclusion from Arbitration

In opposition, USW asserts, as it did in its motion for summary judgment, that “no express
provision excludes” the present dispute from arbitration, and that Noranda has not adduced the
“‘most forceful’ evidence” that the parties did not intend to arbitrate the instant dispute.120 USW
maintains that although Noranda relies on Section 11.08 of the Plan, the language in that Section is

115

Id. at p. 22.

116

Id. at p. 22.

117

Id.

118

Id.

119

Rec. Doc. 37.

120

Id. at p. 4.

23

limited by Section 11.17, which provides that Article 11 “shall not apply to the extent any such
provision conflicts with an agreement with a collective bargaining unit.”121 USW asserts, as it did
in its motion for summary judgment, that the instant dispute arises from Article 9(D)(1)(c) of the
CBA, and that the dispute is consequently subject to the CBA’s arbitration provision, triggering
Section 11.17 of the Plan, which operates to prevent Section 11.08 from being viewed as an “express
exclusion of grievances.” 122
a.

Conflict with the CBA

USW asserts that its position is “entirely compatible” with the Fifth Circuit’s Amoco decision
and other cases cited by Noranda because “no provision remotely similar to Section 11.17 was
present” in that case.123 Therefore, USW argues, Amoco does not support Noranda’s assertion that
“there is no ‘conflict’ between Section 11.08 [of the Plan] and Article 10 of the CBA because the
issue never arose in Amoco.”124
b.

Arguments on the Merits

USW contends that “[t]he parties expressly agreed that the role of the arbitrator would be
to ‘interpret, apply or determine compliance with the provisions of this Agreement, Memoranda,
Supplements, etc.,” and that this contractual term “empowers the arbitrator to consider the Plan and
to examine how its provisions regarding Vesting Service and Benefit Service interact with the
language in Article 9(D)(1)(c) of the CBA[.]”125 Consequently, USW asserts, Noranda’s arguments
121

Id. at pp. 4–5.

122

Id. at p. 5.

123

Id. at pp. 5–7.

124

Id. at p. 7.

125

Id. at p. 8.

24

regarding whether it violated Article 9(D)(1)(c) are improper here, since “it is not for the Court to
assess the merits of the grievance.”126 Rather, USW argues, the only question before the Court “is
whether any possible interpretation of the parties’ agreements would allow” the grievance to be
submitted to arbitration.127 USW contends that Section 11.17 of the Plan “means the answer [to this
question] is clearly ‘yes.’”128
c.

Past Practice

USW further asserts that Noranda’s “past practice” arguments are “without merit,” because
the fact that Haydel applied for benefits according to the Plan’s procedures “proves nothing
regarding the arbitrability of the grievance,” since the Plan’s application process “does not conflict
with the CBA” and therefore “does not trigger Section 11.17.”129 Further, USW argues, it is a “non
sequitur”that Noranda employees “have retired without filing a grievance.”130 Therefore, USW
contends, Noranda “has failed to carry its burden of presenting ‘most forceful’ evidence of the
parties’ intention to exclude this type of grievance from the CBA’s broad arbitration provisions,”
and has therefore not “give[n] rise to ‘positive assurance’ that the parties intended” to exclude
grievances over this “seniority/benefits issue” from arbitration.131 Therefore, USW contends, “the
presumption of arbitrability survives” and “the Union is entitled to arbitrate” this dispute.132

126

Id.

127

Id.

128

Id.

129

Id. at pp. 8–9.

130

Id. at p. 9.

131

Id.

132

Id.

25

2.

Timeliness

USW argues that its July 12, 2013 complaint is timely, because Noranda did not
unequivocally refuse to arbitrate until January 16, 2013.133 According to USW, Noranda’s April 4,
2012 letter “did not touch upon how the Union or Haydel were to address disputes over Haydel’s
pension service credit,” and did not state “that disputes relating to pension service credit were not
subject to the CBA’s grievance and arbitration procedures.”134 Indeed, USW contends, by
contending in its April 4, 2012 letter “Article 2 of the Plan addressed [USW’s] concerns” and that
“Article 19 incorporat[es] the Plan into the CBA, Noranda’s took a position that was “entirely
consistent with a position that the CBA’s grievance-arbitration provisions would govern the
resolution of the dispute over Haydel’s pension service credit,” since Article 19 incorporates the
plan into the CBA, while Article 2 could “provide the rules for calculating his pension service
credit” without undermining the grievance arbitration procedures set forth in the CBA.135
Furthermore, according to USW, Noranda’s counsel, in a letter dated February 1, 2013,
twice noted that Noranda “articulated its position that [this dispute] . . . was not substantively
arbitrable” in its January 16, 2013 meeting, but did not indicate that the April 4, 2012 letter also
amounted to a refusal to arbitrate.136 According to Noranda, a subsequent letter from Noranda’s
Human Resources Manager Reggie McDade likewise omitted any mention of the April 4, 2012
letter.137
133

Id. at pp. 9–10.

134

Id. at p. 10.

135

Id. at pp. 10–11.

136

Id. at p. 11.

137

Id.

26

3.

Fees

Finally, USW contends that “[Noranda] is not entitled to attorney’s fees,” since, although
attorney’s fees are available in cases arising under 29 U.S.C. § 185 “where a party acted frivolously
or in bad faith,” USW “has litigated in good faith here.”138 USW contends that, despite Noranda’s
assertions to the contrary, the present case is not “directly controlled by [the Fifth Circuit’s] Amoco
[decision],” since the language at issue in Amoco “did not include anything remotely similar to
Section 11.17 of the Plan.”139 According to USW, the Court “should not pay heed to Noranda’s
unfounded speculation that it is ‘likely that similar language was included” in the plan at issue in
Amoco.140
USW maintains that the present dispute is not a “‘fraudulent’ attempt at ‘bootstrapping,’ but
rather raises the issue of whether the Company violated Article 9(D)(1)(c), which provides that
“employees injured while on duty for which Worker’s Compensation is payable shall accumulate
credit for continuous service until the termination of the period for which their statutory
compensation is payable.”141 USW contends that the Plan “uses an employee’s period of
‘Continuous Service’ to calculate benefits,” and that “[t]he arbitrator will be called upon to
determine whether the Company violated the CBA’s definition of continuous service by not giving
Haydel credit for pension purposes for the time he was receiving workers’ compensation.”142

138

Id. at p. 12.

139

Id.

140

Id.

141

Id. at pp. 12–13.

142

Id. at pp. 13–14.

27

Finally, USW maintains, “this Court did not order the parties to stipulate to anything.”143
Rather, USW maintains, Noranda proposed to “convert [its] motion to dismiss into one for summary
judgment and to prevent any further briefing,” which proposals USW declined.144 USW argues that
it “should not be penalized for acting within its rights to file its own motion for summary judgment
and supporting material.”145
F.

Noranda’s Reply146
1.

Exclusion from Arbitration
a.

Conflict with the CBA

In further support of its motion, Noranda asserts that “pension disputes are specifically
excluded from arbitration,” since, pursuant to Amoco, the Plan “was free to set its own dispute
resolution procedure with respect to pension dispute without being in conflict with the arbitration
provision of the [CBA].”147 Noranda contends that the CBA does not “prohibit[] the parties from
agreeing to have a [P]lan fiduciary resolve disputes that arise under the [Plan],” and that no language
in the CBA “provides that a determination by any such fiduciary cannot be final and binding on all
parties.”148 Indeed, Noranda contends, “the arbitration provision does not reference or in any way
implicate the [Plan],” and the CBA only references the Plan and the SBD to incorporate them into

143

Id. at p. 13.

144

Id.

145

Id.

146

Rec. Doc. 44.

147

Id. at pp. 2–3.

148

Id. at p. 3.

28

the CBA.149 Therefore, applying Amoco here, there is no conflict between the Plan and the CBA,
such that Section 11.17 of the Plan applies.150 Noranda also avers that the SPD, which is
incorporated by reference into the CBA, “vests the Plan Administrator” with authority to make
pension eligibility and amount determinations, and provides that the Plan Administrator’s decisions
are “final and binding on all parties.”151
b.

Article 9

Noranda argues that Article 9 of the CBA “does not affect the arbitrability of the pension
dispute,” and that “even if Article 9 is somehow relevant to the calculation of a participant’s
pension,” the Plan and the SPD give the Plan Administrator “sole discretion to make Article 9
seniority determinations in connection with a pension dispute.”152
2.

Timeliness

Noranda also maintains that USW’s complaint is untimely, since Noranda “specifically
stated that the dispute was governed by the terms of the Pension Plan” in its April 4, 2012 letter,
which Plan “obviously excludes arbitration for grievances concerning such subject matter,” making
the letter an “unequivocal refusal to arbitrate.”153 Noranda further reavers that its communication
with USW subsequent to the April 4, 2012 letter does not amount to an implicit admission that the
April 4, 2012 letter “was not a refusal to arbitrate.”154

149

Id.

150

Id. at pp. 3–4.

151

Id. at p. 4.

152

Id. at p. 5.

153

Id. at pp. 6–7.

154

Id. at p. 7.

29

3.

Fees

Finally, Noranda contends that it is entitled to fees because USW “continues to litigate this
matter in bad faith by misrepresenting the terms of Noranda’s proposed stipulation,” and by
“suggesting that the proposed stipulation ‘would prevent any further briefing.’”155 Noranda contends
that the proposed stipulation “would have done nothing of the sort,” and that if USW “believed the
proposed stipulation was inadequate, it should have heeded the Court’s invitation to stipulate as to
those facts and documents over which there was no dispute.”156 Noranda maintains that “the parties’
briefing has demonstrated” that “there is no dispute as to any of the documents or any material facts
at issue in this case,” making USW’s actions “vexatious,” having the effect of “substantially
increas[ing] the cost of litigating this dispute,” warranting a penalty.157
III. Law and Analysis
A.

Legal Standard: Summary Judgment
Both USW and Noranda seek summary judgment pursuant to Federal Rule of Civil

Procedure 56. That rule provides, in part, that:
A party may move for summary judgment, identifying each claim or defense—or the
part of each claim or defense—on which summary judgment is sought. The court
shall grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.158
Applying Federal Rule of Civil Procedure 56,

155

Id.

156

Id.

157

Id. at p. 8.

158

FED. R. CIV. P. 56(a).

30

A genuine dispute as to a material fact exists if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party. [T]his court construes all facts
and inferences in the light most favorable to the nonmoving party. But [s]ummary
judgment may not be thwarted by conclusional allegations, unsupported assertions,
or presentation of only a scintilla of evidence.159
Since the parties filed and briefed their respective motions for summary judgment, they have
jointly represented to the Court that “there are no material facts . . . genuinely in dispute,” meaning
that this case “presents a pure question of law.”160 Accordingly, it appears that each party urges the
Court to find, pursuant to Federal Rule of Civil Procedure 56(a), that it is “entitled to judgment as
a matter of law.”161
B.

Presumption of Arbitrability
In this case, the parties dispute whether an arbitration provision contained in the CBA applies

to the present dispute. Specifically, USW maintains that the arbitration provision at issue here is
“broad”162 and that no express provision or other “most forceful evidence” suggests that the scope
of the provision does not extend to the present dispute,163 while Noranda contends the SPD and Plan
“clearly and unambiguously exempt pension disputes” from the arbitration clause at issue here.164

159

Rogers v. Bromac Title Serv., 755 F.3d 347, 350 (5th Cir. 2014) (citations and internal quotation marks

omitted).
160

Rec. Doc. 50 at p. 12.

161

FED. R. CIV. P. 56(a).

162

Rec. Doc. 31–1 at pp. 8–9.

163

Id. at pp. 8–11.

164

Rec. Doc. 32–1 at p. 15.

31

1.

Legal Standard

It is undisputed that the present case arises under Section 301 of the Labor Management
Relations Act.165 That statute, as codified at 28 U.S.C. § 185(a), provides that:
Suits for violation of contracts between an employer and a labor organization
representing employees in an industry affecting commerce as defined in this chapter,
or between any such labor organizations, may be brought in any district court of the
United States having jurisdiction of the parties, without respect to the amount in
controversy or without regard to the citizenship of the parties.
In AT&T Technologies v. Communications Workers of America, the United States Supreme
Court addressed an action to compel arbitration pursuant to Section 301 of the LMRA, and set forth
the general principles governing the interpretation of labor-management contracts containing
arbitration clauses. There, the parties disputed whether the company violated an article of their CBA
by laying off a number of workers.166 The union, in turn, sought to arbitrate the issue, and the
company refused to do so, prompting the union to file suit to compel arbitration.167 The district court
held that it was “arguable” that the union’s interpretation of the contract required arbitration, and
that the issue of arbitrability should therefore be resolved by the arbitrator, and the United States
Court of Appeals for the Seventh Circuit affirmed, holding that, in some circumstances, district
courts should require the parties to arbitrate the issue of arbitration itself.168
The Supreme Court reversed. In doing so, it set forth the general principles governing the
interpretation of arbitration clauses in labor-management contracts. First, the Court instructed that

165

See, e.g. Rec. Doc. 41 at p. 21 (asserting that USW’s action is untimely pursuant to Section 301); Rec. Doc.
31–1 at p. 14 (contending that this case arises under 29 U.S.C. § 185, the statute codifying Section 301 of the LMRA).
166

475 U.S. 643, 645–56 (1986).

167

Id. at 646.

168

Id. at 647.

32

“arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute
which he has not agreed so to submit.”169 Second, the Court concluded that the “threshold question”
of arbitrability—that is, “whether a collective-bargaining agreement creates a duty for the parties
to arbitrate the particular grievance”—“is undeniably an issue for judicial determination” if not
“clearly and unmistakably” made subject to determination by the arbitrator.170
Third, the Court cautioned that courts are “not to rule on the potential merits on the
underlying claims,” even those claims that appear to be “frivolous,” when “deciding whether the
parties have agreed to submit a particular grievance to arbitration.”171
Fourth, the Court held that “where [a] contract contains an arbitration clause, there is a
presumption of arbitrability in the sense that . . . [arbitration] should not be denied unless it may be
said with positive assurance that the arbitration clause is not susceptible of an interpretation that
covers the asserted dispute. Doubts should be resolved in favor of coverage.”172 Finally, the Court
held that the presumption of arbitrability is “particularly applicable” in cases (such as the one before
it) where the arbitration clause at issue is “broad.”173
Applying these principles to the dispute before it, the Court concluded that the Seventh
Circuit had “erred in ordering the parties to arbitrate the arbitrability question,” and remanded the

169

Id. at 648 (citing United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960)).

170

Id. at 649 (citing, among other cases, Warrior & Gulf, 363 U.S. at 583–83).

171

Id. at 649–50. (citations omitted). Accord Paper, Allied-Indus., Chem. and Energy Workers Intern. Union
Local No. 4-2001 v. ExxonMobil Refining & Supply Co., 449 F.3d 616, 619 (5th Cir. 2006).
172

Id. at 650 (citing, among other cases, Warrior & Gulf, 363 U.S. at 582–83). Accord ExxonMobil, 449 F.3d

at 620.
173
Id. The arbitration provision at issue in AT&T stated that the parties were to arbitrate “any differences arising
with respect to the interpretation of this contract or the performance of any obligation hereunder.” Id.

33

case for consideration of whether “because of express exclusion or other forceful evidence, the
dispute over the interpretation of . . . the layoff provision is not subject to the arbitration clause.”174
Consistent with AT&T, the United States Court of Appeals for the Fifth Circuit instructs that
courts play a “very limited [role] when deciding issues of arbitrability.”175 Specifically, in Paper,
Allied-Industrial, Chemical and Energy Workers Intern. Union Local No. 4-2001 v. ExxonMobil
Refining & Supply Co., the Fifth Circuit held that the function of the Court in this context “is to
decide whether the claim asserted is the type of claim the parties have agreed to arbitrate.”176 The
Court is not to “consider the merits of the claim,” but rather must confine its inquiry to “ascertaining
whether the party seeking arbitration is making a claim which on its face is governed by the
contract.”177 If the presumption of arbitrability applies, the Fifth Circuit instructs, it may only be
rebutted “if the party resisting arbitration shows either (1) the existence of an express provision
excluding the grievance from arbitration or (2) the ‘most forceful evidence’ of a purpose to exclude
the claim from arbitration.”178 In interpreting an arbitration agreement, the “ordinary rules of
construction” apply, and extrinsic evidence is only to be considered “where the contract language
is ambiguous as to arbitrability.”179

174

Id. at 651–52.

175

ExxonMobil, 449 F.3d at 619.

176

Id.

177

Id.

178

Id.

179

Id.

34

2.

Analysis

USW maintains that “the presumption of arbitrability applies here because the CBA contains
a broad arbitration provision” from which the present dispute is not excluded. Noranda counters that
“even if there is a presumption of arbitrability, that presumption gives way when there is an express
provision excluding a particular grievance from arbitration or the most forceful evidence of a
purpose to exclude the claim from arbitration.”180
Applying AT&T and ExxonMobil here, the Court now turns to the terms of the parties’
agreement to determine whether an agreement to arbitrate exists. Here, Article 10(A) of the CBA,
the text of which is undisputed by the parties,181 states as follows:
Should any differences arise between the Company and the Union as to the meaning
or application of the provisions of this Agreement, or as to any question relating to
the wages, hours of work, or other conditions of employment of any employee, the
same shall be disposed of in accordance with the provisions of this Article.182
Second, Article 10(C) sets forth the grievance procedure and provides, at “Step 5” that grievances
may be appealed to “an impartial arbitrator whose decision will be final and binding on all the
parties,” and who “shall have jurisdiction and authority only to interpret, apply, or determine
compliance with the provisions of this Agreement, Memoranda, Supplements, etc., insofar as shall

180

Rec. Doc. 31 at p. 8; Rec. Doc 41 at p. 8. Although Noranda qualifies its argument regarding the
presumption of arbitrability with the phrase “even if,” it does not affirmatively argue that the presumption of arbitrability
is inoperative here.
181

Rec. Doc. 31–1 at p. 2 (“7. Article 10 of the CBA outlines the grievance and arbitration procedure for
resolving disputes between the USW and the Company and states that ‘[s]hould any differences arise between the
Company and the Union as to the meaning or application of the provisions of this Agreement, or as to any question
relating to the wages, hours of work, or other conditions of employment of any employee, the same shall be disposed
of in accordance with the provisions in this Article.”); Rec. Doc. 41–1 at p. 2 (“Noranda admits that Plaintiff has
accurately quoted the passage of the Labor Agreement referenced in paragraph [] 7 . . . of its Statement of Undisputed
Material Facts. Noranda further states that the terms of the Labor Agreement speak for themselves.”).
182

Rec. Doc. 31–5 at p. 57.

35

be necessary to the determination of grievances appealed to the Arbitrator.”183 The text of this
Article is also undisputed by the parties.184
In light of these undisputed contractual terms, the Court finds that the CBA’s grievance
procedure contains an arbitration provision. Moreover, here, as in AT&T, the scope of the provision
is broad. In AT&T, the arbitration clause covered “any differences arising with respect to the
interpretation of this contract or the performance of any obligation hereunder.”185 Here, disputes
about “the meaning or application of the provisions of this Agreement” and “wages, hours of work,
or other conditions of employment” are covered by the grievance procedure, which includes the
arbitration provision. Therefore, pursuant to AT&T, the presumption of arbitrability applies here, and
USW’s motion will be denied only if “it may be said with positive assurance that the arbitration
clause is not susceptible of an interpretation that covers the asserted dispute.”186 The presumption
of arbitrability may only be rebutted if Noranda shows “(1) the existence of an express provision
excluding the grievance from arbitration or (2) the ‘most forceful evidence’ of a purpose to exclude
the claim from arbitration.”187 In this inquiry, the Court will resolve doubts in favor of coverage.188

183

Id. at p. 59.

184

Rec. Doc. 31–2 at p. 2 (“8. The fifth step of the CBA grievance and arbitration procedure is submission of
the dispute to an impartial arbitrator ‘whose decision shall be final and binding on the parties. 9. Pursuant to the CBA,
the parties have agreed to grant the arbitrator authority ‘to intepret, apply, or determine compliance with the provisions
of this AGREEMENT, memoranda, supplements, etc., insofar as shall be necessary to the determination of grievances
appealed to the Arbitrator.’”); Rec. Doc. 41–1 at p. 2 (“Noranda admits that Plaintiff has accurately quoted the Labor
Agreement passages referenced in paragraph[] . . . 8 . . . of its Statement of Undisputed Material Facts. Noranda further
states that the terms of the Labor Agreement speak for themselves.”).
185

475 U.S. at 650.

186

Id. at 650.

187

ExxonMobil, 449 F.3d at 620. See also AT&T, 475 U.S. at 650.

188

ExxonMobil, 449 F.3d at 619. See also AT&T, 475 U.S. at 650.

36

C.

Exclusion from Arbitration
1.

Express Provision

USW maintains that “no express provision” of the CBA “excludes the [present dispute] from
arbitration,” and further contends that Section 11.17 of the Plan requires that any sections of the Plan
that conflict with the CBA, including its arbitration provision, must give way to the terms of the
CBA.189 Noranda counters that the SPD and Article 11.08 of the Plan “expressly exclude” from
arbitration “disputes involving the [Plan],”190 pursuant to the Fifth Circuit’s Amoco decision.191 USW
contends that Amoco does not control here because the agreement at issue in that case did not
contain a term resembling Section 11.17 of the Plan,192 while Noranda responds that “[t]here is no
material difference” between the terms at issue here and those at issue in Amoco.193 The Court will
therefore initially consider whether Amoco controls here.
a.

Amoco Decision
i.

Law

In Amoco, a union sued to compel the arbitration of several grievances related to the
company’s alleged denial of sick pay benefits, and both parties moved for summary judgment.194
Noting that the “sole issue” before it was “whether the [company] breached the [CBA] in refusing

189

Rec. Doc. 31–1 at pp. 9--11.

190

Rec. Doc. 41 at pp. 9–10.

191

See Rec. Doc. 41 at p. 9 (citing Amoco, 589 F.2d 162 (5th Cir. 1979) (per curiam), and contending that the
decision is “definitive”); Rec. Doc. 40 at p. 2 (maintaining that “Amoco does not control”).
192

Rec. Doc. 31–1 at p. 11.

193

Rec. Doc. 41 at p. 10.

194

Amoco, 589 F.2d at 163.

37

to arbitrate,” the court195 began its analysis by summarizing and quoting the relevant terms of the
CBA and Disability Benefits Plan, as follows:
Article XVI, ss 2 and 3, are the grievance and arbitration provisions of the
Agreement. They present not unusual steps for consideration of the grievance leading
to arbitration for the selection of arbitrators and the arbitration procedure.
Article VIII of the Agreement provides for the payment of sickness and disability
benefits as follows:
“Benefits with respect to sickness and disability shall be payable In [sic]
accordance with the Company's Sickness and Disability Benefits Plan as
presently in effect except that an employee will be paid holiday pay in place
of sick leave pay for a holiday falling on a normally scheduled day of work,
but which normally would not have been worked by the employee.”
Section IX of the Disability Benefits Plan (Plan) which is referred to in the
Agreement states:
“The decision of the Board of Directors of the Company on any matter
concerning the administration of this plan as a whole or as applied to any
specific case Shall be final and the Board reserves the right to interpret,
apply, amend or revoke this Plan at any time.”196
Construing these terms, the court reasoned that “there appears to be no ambiguity as to the
intent of the Agreement to exclude grievances dealing with sickness and disability benefits from
arbitration,” since the CBA incorporated the Plan by reference, and “Section IX of the Plan
unequivocally states that the Board of Directors of the Company (Board) is to be the final decision
maker in matters concerning administration of the Plan.”197

195

In Amoco, the Fifth Circuit affirmed the judgment of the district court “on the basis of the Memorandum
and Order entered” by the district judge, which opinion it appended to its Order. Id.
196

Id.

197

Id. at 163–64.

38

Addressing the union’s argument that “there is no express exclusion of sick pay benefits
from arbitration in the [CBA],” the court reasoned that Section IX of the Plan, incorporated into the
agreement by Article VIII of the CBA, “does specifically exclude sick pay benefits from
arbitration,” because it “directly states that the Board reserves the right to interpret and apply the
Plan, and that the decision of the Board will be final,” making it “clear” that “questions concerning
sickness and disability benefits should be presented to the Board,” rather than to an arbitrator.198 “To
hold otherwise,” the court held, “would be to render Article VII of the Agreement and Section IX
of the Plan totally meaningless.”199 On this basis, the court held that the disputes regarding sick pay
benefits are to be resolved using the procedures set forth in Section IX of the Disability Benefits
Plan, not arbitration, and that the company was therefore entitled to summary judgment.200
ii.

Analysis

To determine whether Amoco controls the present issue, the Court will begin, as the court
did in Amoco, with the terms of the contract. First, as noted above, it is undisputed that the CBA
contains a broad arbitration provision. It is also undisputed that Article 19 of the CBA incorporates
the Plan into the CBA by reference.201 That Article provides:
The Defined Benefit Pension, Defined Contribution, 401(k) Retirement Savings
Plan, VEBA and Supplemental Unemployment Benefits Programs shall be set forth
in a booklet, titled Job and Income Security Program dated October 1, 2005 and such

198

Id. at 164.

199

Id.

200

Id.

201
Rec. Doc. 31–2 at p. 3 (stating that Article 19 “incorporates the Plan into the CBA”); Rec. Doc. 41 at p. 10
(citing Article 19 and noting that the CBA “incorporates by reference the terms of the benefits plan”).

39

booklet is incorporated herein and made a part of this 2005 Labor Agreement by
such reference.202
Additionally, Section11.08 of the Plan states that Plan fiduciaries “shall have absolute discretionary
authority,” and that fiduciaries’ decisions “shall be final, conclusive, and binding on all parties and
persons affected thereby.”203 The text of this Article is undisputed.204
Finally, Section 11.17 of the Plan provides that “[t]he provisions of this Article 11 shall not
apply to the extent that any such provision conflicts with an agreement with a collective bargaining
unit.”205 The text of this Article is undisputed.206
Comparing the contractual language at issue in Amoco to the contractual language at issue
here, the Court finds significant parallels. First, it is undisputed that Article 19 of the CBA at issue
here incorporates by reference the terms set forth in the Plan. In this respect, the CBA resembles the
CBA at issue in Amoco, which likewise incorporated by reference the terms of its Disability Benefits
Plan.207 Second, the Plan at issue here, at Section 11.08, vests in Plan fiduciaries “absolute
discretionary authority,” and provides that decisions made by fiduciaries “shall be final, conclusive,

202

Id. at p. 86.

203

Rec. Doc. 31–5 at p. 105.

204

Rec. Doc. 31–2 at p. 3 (“12. The Plan contains Article 11, which establishes, among other things, that Plan
fiduciaries shall have ‘absolute discretionary authority’ in administering the plan and that decisions made by those
fiduciaries ‘shall be final conclusive and binding on all parties and persons affected thereby.”); Rec. Doc. 41–1 at p. 1
(“Noranda admits the statements made by Plaintiff in paragraph[] 12 . . . of its Statement of Undisputed Material Facts.”).
205

Rec. Doc. 31–9 at p. 113.

206

Rec. Doc. 31–2 at p. 3 (“13. Section 11.17 of the Plan states that “[t]he provisions of Article 11 shall not
apply to the extent any such provision conflicts with an agreement with a collective bargaining unit.”); Rec. Doc. 41–1
at p. 2 (“Noranda admits that Plaintiff has accurately quoted the passage of the Pension Plan referenced in paragraph 13
of its Statement of Undisputed Material Facts except that the words ‘Article 11’ contained in the quoted passage should
be preceded by the word ‘this.’ Noranda further states that the terms of the Pension Plan speak for themselves.”).
207

589 F.2d at 164.

40

and binding on all parties and persons affected thereby.”208 In this way, it is analogous to the
Disability Benefits Plan at issue in Amoco, which vested broad authority in the company’s Board of
Directors.209
In Amoco, the court found terms that specifically excluded sick pay disputes from arbitration,
and declined to adopt an interpretation of those terms that rendered them “totally meaningless.”210
Likewise here, it is necessary to determine the meaning of similar language, insofar as that language
relates to the scope of the CBA’s arbitration clause. USW contends that the contractual provisions
at issue here are distinguishable from those in Amoco, since the Court in Amoco did not discuss any
language comparable to Section 11.17 of the Plan.211
On this point, a basic principle of contractual interpretation is instructive. The RESTATEMENT
(SECOND) OF CONTRACTS212 provides, at Section 203, that: “[i]n the interpretation of a promise or
agreement or a term thereof . . . an interpretation which gives a reasonable, lawful, and effective
meaning to all the terms is preferred to an interpretation which leaves a part unreasonable, unlawful,
or of no effect.”213 Stated differently, courts must “honor the presumption that parties to a contract

208

Noranda notes that the Plan at issue here “goes even further” than the plan at issue in Amoco in authorizing
review of Plan determinations in court. Rec. Doc. 41 at p. 11.
209

589 F.2d at 164.

210

Id. (“The language in Section IX of the Plan, which makes the Board's decision final in sickness and
disability matters, obviously excludes arbitration for grievances concerning such subject matter. To hold otherwise would
be to render Article VIII of the Agreement and Section IX of the Plan totally meaningless.”).
211

Rec. Doc. 31–1 at p. 11.

212

The Fifth Circuit has employed the RESTATEMENT (SECOND) OF CONTRACTS to interpret the scope of
arbitration provisions in labor-management CBAs. See, e.g. Baton Rouge Oil and Chemical Workers Union v.
ExxonMobil Corp., 589 F.3d 373, 377 (5th Cir. 2002). This Court will likewise do so here.
213

RESTATEMENT (SECOND) OF CONTRACTS § 203(a).

41

intend every clause to have some effect.”214 Here, the grievance procedures set forth in Article 10
of the CBA are different from the benefit determination procedures set forth in the Plan. To the extent
that the procedures “conflict,” as USW suggests they do,215 Section 11.17 of the Plan requires the
Plan’s procedures to give way. Accordingly, the issue before the Court is very much like the issue
present in Amoco, in that it calls upon the Court to interpret the scope of an arbitration provision in
a manner that is consistent with, and that gives effect to, all of the relevant contractual terms.
Although the Court in Amoco and courts in other cases cited by Noranda did not discuss any
contractual term resembling Section 11.17,216 this term only becomes operative if there is a conflict
between a provision in Article 11 of the Plan and the CBA. Applying the interpretive principles set
forth above to the CBA and to the Plan, it is possible to give effect to both Article 10 of the CBA and
Article 11 of the Plan without triggering Section11.17. Indeed, if the relevant provisions are viewed
as complementary parts of a bargained-for whole, they do not conflict at all: the Plan expressly
establishes distinct procedures governing the pension determinations it covers (in essence, those
subject to determination pursuant to Section 11.08), and Article 10 of the CBA sets forth procedures

214

Baton Rouge Oil and Chemical Workers Union, 289 F.3d at 377 (citations omitted).

215

According to USW, Section 11.17 of the Plan requires that any sections of the Plan that conflict with the
CBA, including Section 11.08, give way to the CBA, precluding a finding that Section 11.08 of the Plan expressly
excludes pension disputes from arbitration. Rec. Doc. 31–1 at pp. 9-11.
216

In support of the proposition that “[t]he Fifth Circuit is not alone in holding that these types of review
procedures expressly exclude from arbitration grievances challenging decisions made be a plan administrator,” Noranda
cites Int’l Ass’n of Machinists & Aerospace Workers, Dist. No. 10 v. Waukesha Engine Div., Dresser Indus., Inc.,
17 F.3d 196, 198 (7th Cir. 1994). In that decision, as in Amoco, the Seventh Circuit concluded that the dispute resolution
procedures contained in a benefits document incorporated by reference into a CBA indicated that the parties intended
to exclude the benefits dispute at issue from arbitration. Id. There, however, as in Amoco, the court did not discuss any
language comparable to Section 11.17. See also Teamsters Local Union No. 783 v. Anheuser-Busch, Inc., 626 F.3d 256,
262–63 (6th Cir. 2010) (finding language excluding pension disputes from arbitration, but discussing no language like
Section 11.17); United Steelworkers of Am., AFL-CIO-CLC v. Commonwealth Aluminum Corp., 162 F.3d 447, 451–52
(6th Cir. 1998) (same); PDG Chemical Inc. v. Oil, Chemical and Atomic Workers Intern. Union, 164 F.Supp.2d 856,
861–64 (E.D. Tex. 2001) (same).

42

governing other disputes. Since this interpretation avoids a conflict that would render Article 11
devoid of meaning in the event of a dispute like the present one, it is consistent with the interpretive
principles set forth above. USW’s interpretation, on the other hand, would essentially render the
Plan’s procedures inapplicable in the event of a dispute over a determination made pursuant to it,
which is contrary to the principles noted above. Therefore, when interpreting the CBA and the Plan
to give effect to each, there is no meaningful difference between the terms at issue here and the terms
at issue in Amoco.
b.

Express Exclusion

In deciding the present motion, the Court’s task “is to decide whether the claim asserted is
the type of claim the parties have agreed to arbitrate.”217 In doing so, the Court determines “whether
the party seeking arbitration is making a claim which on its face is governed by the contract.”218 Here,
the Plan expressly establishes its own benefits determination and dispute resolution procedures.
These procedures are distinct from the procedures set forth in Article 10 of the CBA. Having
determined that the Plan expressly excludes from arbitration those disputes arising from the Plan, the
Court now turns to whether the present dispute is governed by the arbitration provision.
Although the parties disagree about whether the Plan or the CBA supplies the rules governing
the calculation of pension benefits, which is the underlying issue here,219 it is nonetheless undisputed
that this issue concerns a pension “under the [Plan].”220 Noranda asserts that the United States Court

217

ExxonMobil, 449 F.3d at 619.

218

Id.

219

USW alleges that Article 9(D)(1)(c) of the CBA governs, while Noranda contends that the Article 2 of the
Plan does. Rec. Doc. 31–1 at p. 9; Rec. Doc. 41 at pp. 13–15.
220

Rec. Doc. 31–2 at p. 2.

43

of Appeals for the Sixth Circuit’s decision in Teamsters Local Union No. 783 v. Anheuser-Busch, Inc.
“is directly on point” with the present issue, insofar as the court there found that the parties’
agreements excluded from arbitration those disputes arising from a pension plan, and concluded that
a grievance relating to seniority calculations for pension purposes was therefore excluded from
arbitration.221 In that case, the court construed a contractual structure much like the one at issue in
Amoco: the CBA referenced the Pension Plan, and the Pension Plan, in turn, provided “a specific
mechanism for resolving all grievances related to pension rights.”222
Here, likewise, the Plan expressly provides its own procedures. These procedures, as noted
above, are separate from the grievance procedure set forth in Article 10. Accordingly, since it is
undisputed that the underlying issue here concerns benefits awarded under the Plan, “the claim
asserted” is on its face governed by the Plan, and therefore is not “the type of claim the parties have
agreed to arbitrate.”223
2.

Most Forceful Evidence

As ExxonMobil instructs, a party may also rebut the presumption of arbitrability by adducing
“(2) the ‘most forceful evidence’ of a purpose to exclude the claim from arbitration.”224 Without
citing any authority, and without making clear its intent to rebut the presumption of arbitrability
pursuant to this rule, Noranda asserts that “past practice confirms that the pension dispute is not

221

Rec. Doc. 41 at pp. 15–17 (citing 626 F.3d 256 (6th Cir. 2010)).

222

Teamsters, 626 F.3d at 262.

223

ExxonMobil, 449 F.3d at 620.

224

449 F.3d at 620.

44

arbitrable,” since other USW members have applied for, and commenced, pension benefits pursuant
to the Plan.225
In ExxonMobil, the defendant company attempted to adduce past bargaining history as “most
forceful evidence” that the dispute at issue was not arbitrable.226 The Fifth Circuit rejected the
attempt, holding that “evidence of bargaining experience can be introduced only where the contract
language is ambiguous as to arbitrability,” and concluding that the dispute at issue was
“unambiguously arbitrable on its face,” therefore precluding the introduction of bargaining
evidence.227
Here, as in ExxonMobil, the terms of the contract resolve the present issue. Therefore, the
Court need not resort to evidence outside the contract. Even if such evidence could properly be
considered here, it is not clear to the Court how it is relevant to the issue before it—specifically,
whether USW and Noranda agreed to arbitrate disputes relating to the Plan.
3.

Arbitrability

The CBA contains a broad arbitration clause. Accordingly, the presumption of arbitrability
applies here.228 Noranda, however, has correctly indicated that the Plan expressly excludes229 certain
disputes, including the present one, from arbitration. Therefore, Noranda has rebutted the
presumption of arbitrability, because the Court can say “with positive assurance that the arbitration

225

Rec. Doc. 41 at p. 20.

226

449 F.3d at 620.

227

Id.

228

See AT&T, 475 U.S. at 650.

229

Id.

45

clause is not susceptible of an interpretation that covers the asserted dispute.”230 Accordingly, because
the relevant contractual language is not in dispute here, Noranda is entitled to judgment as a matter
of law on this issue.
D.

Timeliness
USW contends that its action is timely, “because Noranda first unequivocally refused to

arbitrate on January 16, 2013,” less than six months before the present action was filed.231 Noranda
contends that USW’s action is untimely, because it unequivocally refused to arbitrate in a letter dated
April 4, 2012.232
In Aluminum, Brick and Glassworkers Intern. Union Local 674 v. A.P. Green Refractories,
Inc., the Fifth Circuit held that “a suit to compel arbitration brought under Section 301 of the
[LMRA] is governed by the six-month limitations period provided for in section 10(b) of the
[LMRA],” which period begins to run “when one party clearly refuses to arbitrate the dispute.”233
Applying these rules here, neither party disputes that Noranda indicated, in a letter dated April
4, 2012, that the CBA “referred to the Plan documents and explained that Haydel’s benefit was
calculated using the ‘service counting rules’ enumerated in Article 2 of the Plan.”234 Noranda
contends that the letter, in stating that the Plan governed the pension dispute, “necessarily meant that

230

ExxonMobil, 449 F.3d at 620.

231

Rec. Doc. 31–1 at p. 12.

232

Rec. Doc. 41 at pp. 21–22.

233

895 F.2d 1053, 1054–55 (5th Cir. 1990).

234

Rec. Doc. 31–2 at p. 4 (“16. By letter dated April 4, 2012, Noranda Retirement Specialist Doretta Maddox
(“Maddox”) responded to Delaneuville’s inquiry regarding Haydel’s pension benefit. Maddox’s letter stated that the
CBA referred to the Plan documents and explained that Haydel’s benefit was calculating using the “Service Counting
Rules” enumerated in Article 2 of the Plan”); Rec. Doc. 41–1 at p. 1 (“Noranda admits the statements made by Plaintiff
in paragraph[] . . . 16 . . . of its Statement of Undisputed Material Facts.”).

46

the determination was not controlled by the grievance procedure established in the [CBA].”235 In
support of this assertion, Noranda cites Independent Coca-Cola Employees’ Union of Lake Charles,
No. 1060 v. Coca-Cola Bottling Co. United, Inc., an unpublished (and therefore non-precedential)
Fifth Circuit decision.236 In that case, the court held that a letter sent by the company to the union
amounted to a clear refusal to arbitrate because it stated that “a claim for wages or compensation is
prescribed after three (3) years . . . [and] neither the Union nor Mr. Etienne have a viable cause of
action at this time.”237 Reasoning that there is “no need for a party refusing to arbitrate to use that
term (or any other talismanic words) to express its refusal to arbitrate,” the court found “no doubt or
equivocation” regarding arbitration in the company’s letter or its subsequent conduct, and
consequently concluded the letter triggered the running of the statute of limitations.238
Here, although Coca-Cola is not precedential, it appears to the Court that Noranda’s April
4, 2012 letter is at least as unequivocal as the letter in Coca-Cola, in that it states that the Plan, and
not the CBA, governs the underlying dispute. Since, as noted above, disputes arising from Plan
determinations are governed by specific Plan provisions, and not Article 10 of the CBA, Noranda’s
April 4, 2012 letter amounted to a clear refusal to arbitrate. Accordingly, pursuant to A.P. Green, the

235

Rec. Doc. 41 at p. 22.

236

114 Fed. App’x 137, 139 (5th Cir. 2004). 5TH CIR. R. 47.5.4 provides, in part, that “[u]npublished opinions
issued on or after January 1, 1996 are not precedent, except under the doctrine of res judicata, collateral estoppel, or law
of the case (or similarly to show double jeopardy, notice, sanctionable conduct, entitlement to attorney’s fees, or the
like).”
237

Id. at 139; 141.

238

Id. at 141–42.

47

April 4, 2012 letter triggered the running of the six-month statute of limitations. USW filed the
present action on July 12, 2013.239 Consequently, its action is untimely.
E.

Fees
1.

USW’s Motion

The parties dispute whether USW is entitled to an award of fees incurred in the present case.
USW contends that it is entitled to fees because Article 10 of the CBA facially encompasses the
present dispute, and because the April 2012 letter did not inform the union of its refusal to arbitrate.240
Noranda’s arguments to the contrary, USW asserts, are “frivolous,” which warrants an award of
fees.241
Noranda counters that USW is not entitled to an award of fees, because USW’s “claims were
brought in bad faith and are meritless,” because USW “has pursued this litigation by using vexatious
litigation practices,” and because “the focus of [the] bad faith inquiry is not the actions precipitating
the law suit, but the manner in which the litigation itself is conducted.”242
2.

Noranda’s Motion

Noranda also seeks an award of fees “pursuant to the Court’s inherent equitable powers,”
because USW “entirely ignores the well-established and longstanding Fifth Circuit precedent that
controls the outcome of this case,” “misrepresent[s] the terms of the [Plan],” characterizes the
underlying dispute here as one involving seniority, makes a “misleading” argument about Amoco,

239

Rec. Doc. 1.

240

Rec. Doc. 31–1 at pp. 15–16.

241

Id.

242

Rec. Doc. 41 at p. 24.

48

and “has engaged in nothing but vexatious litigation practices” by refusing to “stipulate to the
language of both the Labor Agreement and the Plan and further stipulate that there is no material fact
genuinely in dispute,” thereby “unnecessarily creating a dispute involving such documents.”243
USW contends that “[Noranda] is not entitled to attorney’s fees,” since it “has litigated in
good faith.”244 USW contends that the present case is not “directly controlled by [the Fifth Circuit’s]
Amoco [decision],” that its grievance relates to the CBA, and that it “should not be penalized for
acting within its rights to file its own motion for summary judgment and supporting material.”245
3.

Legal Standard

Although the “‘American rule’ ordinarily requires parties to shoulder their own counsel fees
or other litigation expenses absent statutory or contractual authority for an alternative allocation,”246
the Fifth Circuit instructs that “federal courts possess inherent power to assess attorney’s fees and
litigation costs when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive
reasons,” warranting the assessment of fees for “punitive” purposes.247 The standards governing the
bad faith inquiry “are necessarily stringent,” and do not permit the imposition of fees simply because
a party has pursued “an aggressive litigation posture.”248 Rather, “[t]he essential element in triggering
the award of fees is therefore the existence of ‘bad faith’ on the part of the unsuccessful litigant.”

243

Rec. Doc. 32–1 at pp. 19–22.

244

Rec. Doc. 37 at p. 12.

245

Id. at p. 13.

246

Batson v. Neal Spelce Assocs., 805 F.2d 546, 550 (5th Cir. 1986).

247

Id.

248

Id.

49

“Advocacy simply for the sake of burdening an opponent with unnecessary expenditures of time and
effort clearly warrants recompense for the extra outlays attributable thereto.”249
4.

Analysis

Applying these standards here, USW asserts that Noranda’s positions regarding the
arbitrability of this grievance and the April 4, 2012 letter are “frivolous.” Likewise, Noranda
contends that USW has ignored or misconstrued cases and mischaracterized the contractual language
at issue here. Noranda also asserts that fees are warranted because USW refused to make certain
stipulations.250 Although the Court has determined that USW’s positions are erroneous, the Fifth
Circuit instructs that fees should not be awarded simply because a party pursues “unsuccessful”
arguments or takes an aggressive litigation posture.251 This is what the parties accuse each other of
doing here. Therefore, neither party is entitled to an award of fees.
IV. Conclusion
In the present case, USW seeks an order compelling Noranda to arbitrate its grievance
regarding the calculation of Haydel’s pension benefits. The text of the CBA at issue here is
undisputed, and contains a broad arbitration provision that encompasses the present dispute, making
the present dispute presumptively arbitrable. However, Noranda has pointed to express contractual
terms excluding the present dispute from arbitration. Therefore, the Court can say “with positive
assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted

249

Id.

250

The Court noted in its Order denying Noranda’s motion to dismiss that “[I]f the parties stipulate to the
language of both the Labor Agreement and the Plan and further stipulate that there is no material fact genuinely in
dispute, the Court would reconsider the filing of the motion as a converted motion for summary judgment.” Rec. Doc.
6 at p. 20 n. 118. No such stipulation was made here, nor was any such stipulation required.
251

Id.

50

dispute.”252 Since no material facts are in dispute, Noranda is entitled to judgment as a matter of law
on this point.
USW contends that its action is timely, because Noranda first clearly refused to arbitrate the
present dispute in a meeting on January 16, 2013. In opposition, Noranda points to an April 4, 2012
letter, the relevant contents of which are undisputed, that asserts that the underlying dispute is
governed by the Plan. Since disputes arising from the Plan are exempt from arbitration, Noranda’s
April 4, 2012 letter is a clear refusal to arbitrate. Accordingly, since no material facts are in dispute,
Noranda is entitled to judgment as a matter of law on this point.
Finally, the parties assert that they are entitled to fees, but neither has pointed to any conduct
that is capable of supporting an award of fees. Consequently, the Court will not award fees to either
party. Accordingly,
IT IS ORDERED that USW’s “Motion for Summary Judgment”253 is DENIED.
IT IS FURTHER ORDERED that Noranda’s “Motion for Summary Judgment”254 is
GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that Noranda’s “Motion for Summary Judgment”255 is
GRANTED to the extent that it urges the Court grant it judgment as a matter of law as to the issues
of arbitrability and timeliness.

252

ExxonMobil, 449 F.3d at 620.

253

Rec. Doc. 31.

254

Rec. Doc. 32.

255

Id.

51

IT IS FURTHER ORDERED that Noranda’s “Motion for Summary Judgment”256 is
DENIED to the extent that it seeks an award of attorney’s fees.
NEW ORLEANS, LOUISIANA, this 27th day of February, 2015.

________________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

256

Id.

52