Sheet Metal Employers Industry Promotion Fund et al v. Absolut Balancing Co. Inc.

Filing 46

ORDER denying 42 Motion for Reconsideration. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHEET METAL EMPLOYERS INDUSTRY
PROMOTION FUND and SHEET METAL
EMPLOYERS INDUSTRY APPRENTICESHIP
REIMBURSEMENT FUND,
Plaintiffs/Counter-Defendants,
Case No. 12-10752
Hon. Lawrence P. Zatkoff

v.
ABSOLUT BALANCING CO., INC.,
ENVIRO-AIRE/TOTAL BALANCE COMPANY,
AERODYNAMICS INSPECTING CO.,
AIRFLOW TESTING, INC.,
Defendants/Counter-Plaintiffs/Third-Party
Plaintiffs,
v.
SMACNA, STEFANSKY, HOLLOWAY &
NICHOLS, INC., BENESYS, INC.,
SHEET METAL WORKERS INTERNATIONAL,
AFL, LOCAL 80, JOINT TRUST FUNDS,
Third-Party Defendants.
/

ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION
This matter is before the Court on Plaintiffs’ Motion for Reconsideration [dkt 42]. Pursuant
to E.D. Mich. L.R. 7.1(h)(2), no response is permitted. The Court finds that the facts and legal
arguments are adequately presented in Plaintiffs’ motion and brief such that the decision process
would not be significantly aided by oral argument. Therefore, pursuant to E.D. Mich. L.R. 7.1(h)(2),
it is hereby ORDERED that the motion be resolved on the brief submitted. For the reasons set forth
below, Plaintiffs’ Motion for Reconsideration is DENIED.

I. BACKGROUND
The Court set forth the facts of this case in its August 1, 2012, Opinion and Order, which
Plaintiffs now challenge:
Plaintiffs are trust funds that bring this action under § 301 of
the Labor Management Relations Act (“LMRA”), 29 U.S.C. §
185(c), to confirm arbitration awards against Defendants for
purported breaches of a collective bargaining agreement (“CBA”).
...
Defendants . . . are testing and air balancing control (“TAB”)
contractors. . . . Plaintiffs claim that Defendants were bound by the
CBA, which required the payment of fringe benefits to Plaintiffs
under Sections 15 and 16 of Addendum 1 of the CBA. . . .
Plaintiffs filed grievances against Defendants for failing to
make contributions to the two funds since 2006. Pursuant to Article
X, Section 2, of the CBA, the grievances were heard by the Local
Joint Adjustment Board (“LJAB”) for final and binding arbitration on
February 15, 2011. While Defendants received notice of the
grievance hearings by letters from the LJAB, Defendants opted to not
be present at the hearings. The LJAB issued . . . decisions on
February 25, 2011, and March 9, 2011, finding that Defendants
violated the CBA by failing to contribute to the Promotion Fund and
Reimbursement Fund.
See dkt. #32. On May 25, 2012, Plaintiffs filed a Motion for Summary Judgment, arguing that the
Court should summarily enter judgment in their favor because Defendants are precluded from
asserting any defenses based on the three-month limitations period for challenging arbitration
awards under § 301 of the LMRA. See dkt. #13.
On August 1, 2012, the Court found, based on a narrow exception, that well-defined public
policy dictates against holding Defendants liable under the LJAB decisions if Defendants are not
signatories to the CBA. See dkt. #32. Because the Court determined that there was a genuine
dispute of material fact as to whether Defendants were signatories to the CBA, the Court denied
Plaintiffs’ Motion for Summary Judgment. Plaintiffs subsequently filed the instant Motion for
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Reconsideration, arguing that the Court’s decision is “palpably erroneous” and Plaintiffs did not
have the opportunity to brief the public policy exception to which the Court relied on in denying
Plaintiffs’ Motion for Summary Judgment. See dkt. #42, at 2. In the alternative, Plaintiffs request
that the Court certify the issue for appeal to the Sixth Circuit. The issue framed by Plaintiffs is
whether enforcement of the LJAB decisions is against public policy if Defendants are not signatories
to the CBA and failed to timely vacate the decisions.
II. ANALYSIS
A. RECONSIDERATION OF THE COURT’S AUGUST 1, 2012, OPINION & ORDER
Local Rule 7.1(h) governs motions for reconsideration, stating that “the court will not grant
motions for rehearing or reconsideration that merely present the same issues ruled upon by the court,
either expressly or by reasonable implication.” E.D. Mich. L.R. 7.1(h)(3) (emphasis added). The
same subsection further states, “[t]he movant must not only demonstrate a palpable defect by which
the court and the parties . . . have been misled but also show that correcting the defect will result in
a different disposition of the case.” Id. A defect is palpable when it is “obvious, clear,
unmistakable, manifest, or plain.” Chrysler Realty Co., LLC v. Design Forum Architects, Inc., 544
F. Supp. 2d 609, 618 (E.D. Mich. 2008).
Plaintiffs argue that they “did not have an opportunity to previously brief this issue due to
the inaccurate and ‘inarticulate’ manner in which it was raised by Defendant [sic].” Plaintiffs
attempt to bolster their argument by citing to the Court’s own language in its Opinion and Order that
Defendants’ argument regarding the public policy exception was “inarticulately pled.” See dkt #34,
at 7.
Plaintiffs’ argument is absurd for the reasons highlighted below:

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(1)

There is no legal authority that precludes the Court from resolving a moving party’s
motion on grounds not previously raised or cited to by the parties.

(2)

While Plaintiffs focus on the Court’s characterization of Defendants’ public policy
argument as “inarticulately pled,” such characterization neither forecloses the legal
merit of Defendants’ argument nor the Court’s ability to rely on Defendants’
argument.

(3)

Plaintiffs’ lack of opportunity to respond to Defendants’ public policy argument
belies the fact that they first raise the public policy exception on page seven of their
initial Motion for Summary Judgment. See dkt. #13 at 7 (citing to Sixth Circuit
precedent).

(4)

Defendants’ response and supporting brief to Plaintiffs’ Motion for Summary
Judgment also raises the public policy exception, as exemplified in the following
instances:
(a)

On page three of their response, Defendants enumerate a list containing the
language that the “award violates the generally enumerated public policies,”
and cite to their attached brief and two cases in support.1 See dkt. #18, at 3.

(b)

The response’s table of contents contains a section labeled “VIOLATES
PUBLIC POLICY”, and directs the reader to page fourteen of the supporting
brief. See dkt. #18, at 5.

(c)

Page fourteen of the attached brief contains the bold heading “VIOLATES
PUBLIC POLICY.” The heading precedes an entire page of discussion as
to why Defendants can still challenge the award under the public policy
exception, despite the fact that their time may have passed to file affirmative
defenses.

(d)

In Defendants’ section on the public policy exception, they cite to Occidental
Chem. v. Int’l Chem. Workers Union, 853 F.2d 1310, 1315 (6th Cir. 1988),
to support their public policy argument; the same case Plaintiffs cite in their
opening motion and brief. 2

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NLRB v. Detroit Resilient Floors, Local 2265, 317 F.2d. 269 (6th Cir. 1963); Jt. Admin. Comm. v.
Wash. Grp. Int’l, Inc., 561 F.2d 447 (6th Cir. 2009).

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The Court notes, even if one were to summarily read Occidental, the concluding lines of the opinion
specifically reference the Sixth Circuit’s acknowledgment and application of the public policy
exception, stating as follows:
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(e)

(5)

Defendants’ discussion of the public policy exception sets forth their two
reasons why that exception is applicable to this award and uses the phrase
“public policy” six times throughout their argument.

Plaintiffs’ reply to Defendants’ response expressly labels a subsection “The
Defendants have Failed to Articulate Why the Arbitration Award Violates Public
Policy.” The subsection includes a paragraph of argument with several citations to
legal authority.

For these reasons, Plaintiffs’ argument that they did not have an opportunity to brief the
controlling point of law that the Court relied on is rejected. Plaintiffs’ decision on the length of
argument they devoted to the public policy exception is of no concern to the Court. Plaintiffs’
merely disagree with the Court’s conclusion. Such disagreement is an inadequate basis upon which
to file a motion for reconsideration. Accordingly, Plaintiffs’ request for reconsideration of the
Court’s August 1, 2012, Opinion and Order is DENIED.
B. CERTIFICATION OF ISSUE FOR INTERLOCUTORY APPEAL
A district court may certify an issue for interlocutory appeal if it determines that the order
presents “[1] a controlling question of law as to which [2] there is substantial ground for difference
of opinion and that [3] an immediate appeal from the order may materially advance the ultimate
termination of the litigation.” 28 U.S.C. § 1292(b). “Review under § 1292(b) is granted sparingly
and only in exceptional cases.” In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002) (citing

The only question requiring the court’s decision under these
circumstances is whether the arbitrator’s award is against public
policy. . . . The award does not violate public policy.
The judgment of the district court is affirmed.
Occidental, 853 F.2d at 1317 (emphasis added).
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Kraus v. Bd. of Cnty. Rd. Comm’rs, 364 F.2d 919, 922 (6th Cir. 1966)).
Plaintiffs contend that all three elements necessary for the Court to certify the issue relating
to the public policy exception are met under § 1292. According to Plaintiffs, the issue is a
controlling issue of law; the Court’s August 1, 2012, Opinion and Order is contrary to Sixth Circuit
precedent and thus, there is a substantial ground for difference of opinion; and, immediate appeal
could conclusively resolve this issue of law and this case, avoiding factual discovery and a trial.
The Court has reviewed and considered the Sixth Circuit decisions relied on by Plaintiffs.
See Titan Tire Corp. v. United Steelworkers of Am., 656 F.3d 368 (6th Cir. 2011); Equitable Res.,
Inc. v. United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l
Union, AFL-CIO/CLC, 621 F.3d 538 (6th Cir. 2010); Int’l Union, UAW v. Dana Corp., 278 F.3d 548
(6th Cir. 2002); Mid Mich. Reg’l Med. Ctr. v. Local 79, 183 F.3d 497 (6th Cir. 1999); Shelby Cnty.
Health Care Corp. v. Am. Fed. State, Cnty & Mun. Emps., 967 F.2d 1091 (6th Cir. 1992);
Occidental, 853 F.2d at 1310.
None of these decisions are on point with the factual circumstances of this case, and the rules
of law enumerated in these cases is no different than the rules of law stated— and applied—by the
Court in its August 1, 2012, Opinion and Order. The Court further finds no need to consider
Plaintiffs’ Eighth, Tenth, and Eleventh Circuit case law, as such cases are not dispositive of whether
a substantial ground for difference of opinion exists under Sixth Circuit legal precedent. Plaintiffs
also point to Metro. Detroit Brick Layers Dist. Council v. U.S. Brick/Real Brick Prods. Grp., No.
91–CV–40099–FL, 1991 WL 353353, at *1–3 (E. D. Mich. July 23, 1991) (J. Newblatt), wherein
a defendant employer who failed to timely move to vacate an arbitration award was foreclosed from
arguing that the arbitration panel lacked jurisdiction over the defendant employer. This decision,

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however, is not Sixth Circuit precedent, and the Court is not bound by it. It is also not clear from
the decision whether the defendant employer ever raised the public policy exception or the district
court considered it on its own accord. See id. at *3. For these reasons, the Court finds that this case
is not exceptional and certification for appeal is unwarranted. See In re City of Memphis, 293 F.3d
at 350. The Court therefore DENIES Plaintiffs’ request to certify this issue for appeal.
III. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ Motion for Reconsideration
[dkt 42] is DENIED.
IT IS SO ORDERED.

S/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE

Date: August 24, 2012

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