Alcoa, Inc. v. International Union, Automobile, Aerospace, Agriculture Implement Workers of America et al

Filing 25

Memorandum Opinion and Order denying Alcoa's Motion for summary judgment (Related Doc # 19 ) and granting the Union's Motion for summary judgment (Related Doc # 20 ). The counterclaim of the Union is granted in part and denied in part. Signed by Magistrate Judge William H. Baughman, Jr. on 12/31/2013. (S,G)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ALCOA, INC.,
Plaintiff,
v.
INTERNATIONAL UNION,
AUTOMOBILE, AEROSPACE,
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, et al.,
Defendants.

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CASE NO. 1:12 CV 2433

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
Before me1 in this action by Alcoa, Inc. against International Union, United
Automobile, Aerospace, Agricultural Implement Workers of America (“UAW”) and UAW
Local 1050 (collectively “Union”) to vacate an arbitrator’s award and order in favor of the
Union,2 are cross-motions for summary judgment by Alcoa3 and the Union.4 Each party has

1

This matter was referred to me under Local Rule 3.1 by United States District Judge
Lesley Wells by order dated December 6, 2012 (ECF # 10). The parties subsequently
consented to my jurisdiction. ECF # 17.
2

ECF # 1.

3

ECF # 19.

4

ECF # 20.

briefed its own motion5 and replied to the opposing party’s motion.6 The Union has also filed
a counterclaim seeking an order forcing Alcoa to enter into the discussions on a remedy
ordered in the arbitration and to obtain retroactive interest on any monetary award.7
For the reasons that follow, the Union’s motion for summary judgment will be granted
and that of Alcoa will be denied. The Union’s counterclaim will be granted in part insofar
as it seeks to have Alcoa participate in the discussion ordered in the award, and denied in part
as premature insofar as it seeks any retroactive interest.

Facts
A.

The CBA and work rules
Alcoa and the Union entered into a collective bargaining agreement (“CBA”) on

September 30, 2006.8 Sections 1 and 2 of the CBA set forth that both parties shall set certain
agreements pertaining to wages, hours, etc.9 and recognizes the Union as the exclusive
bargaining agent for the employees of the Cleveland, Ohio, plant.10 Section 3 gives Alcoa the
right to operate the plant and direct its work forces except for limitations expressly set out

5

ECF # 19 (Alcoa); ECF # 20, Attachment 1 (Union).

6

ECF # 21 (Alcoa opposition); ECF # 22 (Union opposition).

7

ECF # 7.

8

ECF # 4-1, Exhibit A at 1.

9

Id., at 2.

10

Id.

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in the provisions of the agreement.11 Section 21 establishes that the normal workday shall be
8 hours and the workweek shall be 40 hours at straight time rates.12 The CBA Section 45
establishes that contracts or agreements that conflict with or supersede the Agreement and
affect the employees to whom the Agreement applies shall not be made except those
mutually agreed upon by the parties of this Agreement.13
B.

The conduct at issue
The facts relevant to the conduct at issue, as found by Stanley Dobry, the umpire of

the arbitration board,14 are as follows:
In 2010 management began considering operating efficiencies they believed would
help make the Cleveland plant more productive. Toward that end, Alcoa reduced the number
of shifts from three down to two per day,15 and began negotiations pertaining to realigning
and reducing the sixteen shift start times.16 But, when overall agreement on the shift start
times could not be met, Alcoa implemented the new start times on its own.17

11

Id.

12

Id., at 5.

13

Id., at 6.

14

ECF # 7-2, Exhibit B.

15

Id., at 5.

16

Id.

17

Id.

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During the initial implementation of this shift realignment, break times and lunch
times within the new structure were reduced from their previous length.18 After the Union
complained about these reductions, Alcoa management restored the original break and lunch
times.19 Alcoa and the Union then met to discuss the reduced break times, but when the
Union told Alcoa that it believed the CBA already covered the issue and so it would have no
further conversations, Alcoa implemented its new procedures on its own.20
The implemented changes, among other things, eliminated the personal clean-up time
at the end of each shift and other break times for which workers had previously been paid.21
Essentially, the changes reduced the paid “idle time” from 95 minutes per shift, or
approximately 20% of an eight-hour shift, to 60 minutes, or 12.5% of an eight-hour shift.22
Employees were still paid for the full eight-hour workday,23 and a 30-minute lunch break still
remained.24

18

Id.

19

Id., at 5-6.

20

Id., at 6.

21

Id.

22

Id.

23

Id., at 7.

24

Id., at 6.

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C.

The arbitration; the arbitration board’s opinion and award
The arbitration hearing was held on October 27, 2011.25 At arbitration, the issue was

if Alcoa violated the CBA when it reduced/eliminated the amount of paid idle time defined
as breaks, lunch, etc.26 The arbitration board, consisting of an Alcoa delegate, a Union
delegate, and a non-affiliated umpire, determined that Alcoa did violate the CBA27 and
determined that the grievance be denied in part and granted in part.28
The arbitration board based its decision on past practices29 as well as implicit
assumptions upon which pay rates were based, and the arbitration board explained that
decision as proceeding from an integrated reading of the CBA.30 The arbitration board found
that the idle time breaks were well established and mutually understood to be how things
were done.31 It further determined that the breaks were a past practice that gave meaning to
the language of the contract, and were carried forward into the CBA “as a matter of fact.”
In particular, the arbitration board found that “[b]y increasing the hours worked and
eliminating break times, [Alcoa] acted in derogation of the implicit assumptions upon which

25

Id., at 2.

26

Id., at 3.

27

Id. at 25.

28

Id.

29

Id. at 21.

30

Id.

31

Id.

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the pay rates [of the CBA] were understood to be based.”32 Because compensation remained
the same but the amount of hours actually worked increased, the result was the pay for each
hour worked had been diminished.33
D.

Issues on summary judgment
In the suit Alcoa contends that the arbitration award did not draw its essence from the

2006 CBA34 and that the arbitration board failed to construe the provisions of the parties’
CBA but instead impermissibly looked to outside sources to find obligations existing beyond
those set forth in the CBA.35 In doing so, Alcoa maintains, the arbitration board also
exceeded its authority by altering the terms of the CBA and fashioning a remedy that
included non-arbitral matters.36
The Union has here also moved for summary judgment,37 contending first that the
arbitration board acted properly and did not exceed its authority and that the Union is,
therefore, entitled to prevail as a matter of law.38 It further asserts, as a counterclaim, that
Alcoa be ordered to comply with the arbitration decision retroactive to August 14, 2012, with

32

Id.

33

Id.

34

ECF # 19 at 1.

35

Id.

36

Id.

37

ECF # 20.

38

ECF # 7.

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interest.39 Alcoa has responded by contending that the arbitrator did not act properly, and
further arguing that the counterclaim be denied and dismissed with prejudice.40

Analysis
A.

Standard of review – summary judgment
The court should grant summary judgment if satisfied “that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of
law.”41 The moving party bears the burden of showing the absence of any such “genuine
issue”:
[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those
portions of ‘the pleadings, depositions answers to interrogatories, and
admissions on file, together with affidavits, if any,’ which it believes
demonstrates the absence of a genuine issue of material fact.42
A fact is “material” only if its resolution will affect the outcome of the lawsuit.43
Determination of whether a factual issue is “genuine” requires consideration of the applicable

39

Id. at 4.

40

ECF # 12 at 3.

41

Fed. R. Civ. P. 56(c).

42

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing Fed. R. Civ. P. 56(c)).

43

Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
-7-

evidentiary standards.44 The court will view the summary judgment motion “in the light most
favorable to the party opposing the motion.”45
The court should not grant summary judgment if a party who bears the burden of
proof at trial does not establish an essential element of his case.46 Accordingly, “[t]he mere
existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient;
there must be evidence on which the jury could reasonably find for the plaintiff.”47 Moreover,
if the evidence presented is “merely colorable” and not “significantly probative,” the court
may decide the legal issue and grant summary judgment.48
In most civil cases involving summary judgment, the court must decide “whether
reasonable jurors could find by a preponderance of the evidence that the [non-moving party]
is entitled to a verdict.”49 But if the non-moving party faces a heightened burden of proof,
such as clear and convincing evidence, it must show that it can produce evidence which, if
believed, will meet the higher standard.50

44

Id. at 252.

45

United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

46

McDonald v. Petree, 409 F.3d 724, 727 (6th Cir. 2005) (citing Celotex Corp., 477
U.S. at 322).
47

Leadbetter v. Gilley, 385 F.3d 683, 689 (6th Cir. 2004) (quoting Anderson, 477 U.S.
at 248-49).
48

Anderson, 477 U.S. at 249-50 (citation omitted).

49

Id. at 252.

50

March v. Levine, 249 F.3d 462, 471 (6th Cir. 2001).
-8-

Once the moving party has satisfied its burden of proof, the burden then shifts to the
nonmover.51 The nonmoving party may not simply rely on its pleadings, but must “produce
evidence that results in a conflict of material fact to be solved by a jury.”52 The text of
Fed. R. Civ. P. 56(e) states:
When a motion for summary judgment is made and supported as provided in
this rule, an adverse party may not rest upon the mere allegations or denials of
his pleading, but his response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine issue for trial.
“In other words, the movant can challenge the opposing party to ‘put up or shut up’ on a
critical issue.”53
Though parties must produce evidence in support of and in opposition to a motion for
summary judgment, not all types of evidence are permissible. The Sixth Circuit has
concurred that “‘it is well settled that only admissible evidence may be considered by the trial
court in ruling on a motion for summary judgment.’”54 Rule 56(e) also has certain, more
specific requirements:
[it] requires that affidavits used for summary judgment purposes be made on
the basis of personal knowledge, set forth admissible evidence, and show that
the affiant is competent to testify. Rule 56(e) further requires the party to
attach sworn or certified copies to all documents referred to in the affidavit.

51

Anderson, 477 U.S. at 256.

52

Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 149 (6th Cir. 1995).

53

BDT Prods. v. Lexmark Int’l, 124 F. App’x 329, 331 (6th Cir. 2005).

54

Wiley v. United States, 20 F.3d 222 (6th Cir. 1994) (quoting Beyene v. Coleman Sec.
Servs., 854 F.2d 1179, 1181 (9th Cir. 1988)).
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Furthermore, hearsay evidence cannot be considered on a motion for summary
judgment.55
But the district court may consider evidence not meeting this standard unless the opposing
party affirmatively raises the issue of the defect. The burden is on the opposing party to
object to the improper evidence; failure to object constitutes a waiver.
If a party fails to object before the district court to the affidavits or evidentiary
materials submitted by the other party in support of its position on summary
judgment, any objections to the district court’s consideration of such materials
are deemed to have been waived, and [the Sixth Circuit] will review such
objections only to avoid a gross miscarriage of justice.56
As a general matter, the judge considering a motion for summary judgment need
examine “[o]nly disputes over facts that might affect the outcome of the suit under governing
law.”57 The court will not consider non-material facts, nor will it weigh material evidence to
determine the truth of the matter.58 The judge’s sole function is to determine whether there
is a genuine factual issue for trial; this does not exist unless “there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party.”59
In sum, proper summary judgment analysis entails:
the threshold inquiry of determining whether there is the need for a trial –
whether, in other words, there are any genuine factual issues that properly can

55

Id. at 225-26 (citations omitted).

56

Id. at 226 (citations omitted).

57

Anderson, 477 U.S. at 248.

58

Id. at 249.

59

Id.

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be resolved only by a finder of fact because they may reasonably be resolved
in favor of either party.60
B.

Application of standard – the Union is entitled to judgment as a matter of law

1.

Michigan Family Resources scope of review
As both parties agree,61 the Sixth Circuit’s 2007 en banc decision in Michigan Family

Resources v. Service Employees International Union62 provides the analytical framework for
addressing the present case. The Sixth Circuit has long held that a federal district court’s
review of an arbitrator’s decision is extremely limited;63 indeed, “‘one of the narrowest
standards of judicial review in all of American Jurisprudence.’”64 Specifically, as the
Supreme Court has stated, “as long as the arbitrator’s award draws its essence from the
collective bargaining agreement, and is not merely his own brand of industrial justice, the
award is legitimate.”65 The Supreme Court has also stated that “if an arbitrator is even
arguably construing or applying the contract and acting within the scope of his authority, the

60

Id. at 250.

61

ECF # 20, Attachment 1 at 6 (Union); ECF # 21 at 1 (Alcoa).

62

Michigan Family Resources v. Service Employees Int’l Union, 475 F.3d 746
(6th Cir. 2007) (en banc).
63

Truck Drivers Local No. 164 v. Allied Waste Syss., 512 F.3d 211, 216 (6th Cir.

2008).
64

Int’l Ass’n of Machinists & Aerospace Workers v. Tenn. Valley Auth., 155 F.3d
767, 771 (6th Cir. 1998) (quoting Lattimer-Stevens v. United Steelworkers, 913 F.2d 1166,
1169 (6th Cir. 1990)).
65

United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 36 (1987) (internal
quotations omitted).
-11-

fact that a court is convinced that he committed serious error does not suffice to overturn his
decision.”66
Accordingly, on that foundation, the Sixth Circuit in Michigan Family Resources
articulated the scope of judicial review of arbitrator’s decisions to be as follows:
Did the arbitrator act “outside his authority” by resolving a dispute not
committed to arbitration? Did the arbitrator commit fraud, have a conflict of
interest or otherwise act dishonestly in issuing the award? And in resolving
any legal or factual disputes in the case, was the arbitrator “arguably
construing or applying the contract”? So long as the arbitrator does not offend
any of these requirements, the request for judicial intervention should be
resisted, even though the arbitrator made “serious,” “improvident” or “silly”
errors in resolving the merits of the dispute.67
As to the first element in the Michigan Family Resources inquiry – whether the
arbitrator acted outside his authority by adjudicating an issue “not committed to arbitration”
– the Sixth Circuit in Truck Drivers stated that Michigan Family Resources “severely
curtailed the ‘scope of authority’ concept in reviewing arbitration awards: the arbitrator
exceeds his authority not when he merely makes an interpretive error but only when the
collective bargaining agreement does not commit the dispute to arbitration.”68
Similarly, as concerns the issue of permitting an award to stand when an arbitrator was
“arguably construing or applying the contract,” Michigan Family Resources clearly stated
that this element “‘respects the parties’ decision to hire their own judge to resolve their

66

Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509 (2001).

67

Michigan Family Resources, 475 F.3d at 753 (citations omitted).

68

Truck Drivers, 512 F.3d at 217 (quoting Michigan Family Resources, 475 F.3d at
756)(emphasis original).
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disputes, ... ‘respects the finality clause in most arbitration agreements,’and sets forth a
policy ‘whose imperfections can be remedied by hiring better arbitrators.’”69
In sum, Michigan Family Resources teaches that, properly understood and applied by
reviewing courts, this highly deferential standard will permit “only the most egregious
awards to be vacated.”70
2.

Nothing in the arbitration award meets the Michigan Family Resources test for
overturning that award, so the Union is entitled to summary judgment.
As noted, Michigan Family Resources recognizes three types of error that will be

sufficient to overturn an arbitration award: (1) the arbitrator acted outside the scope of his
authority, (2) the arbitrator engaged in fraud or other dishonest conduct, or (3) the arbitrator
failed to arguably construe or apply the contract. Here, Alcoa has made no allegation of any
fraud or dishonesty, so the two areas for review are (a) whether the arbitration board here
acted outside of the scope of its authority, or (b) whether it failed to arguably construe or
apply the contract.
a.

Exceeding the scope of authority
Alcoa claims that the arbitration was outside the scope of contractual authority by

addressing wages and production standards – both of which are excluded from arbitration by
the language of the CBA.71 Further, Alcoa argues that although the submitted issue may have

69

Id. at 753-54 (internal citations omitted).

70

Id. at 753.

71

ECF # 21 at 2 (quoting CBA).

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been within the scope of the CBA, the actual basis for the award was beyond the scope of the
arbitration board to fashion.72
i.

Waiver
For its part, the Union maintains first that Alcoa waived any objection to these issues

being considered in the arbitration by not raising an objection prior to submitting the issues
to arbitration.73 Moreover, the Union asserts that the issue submitted – “Did the Company
violate any provision of the Labor Agreement when it reduced/eliminated the amount the
Company paid for idle time (lunch breaks, etc.)?” – fell directly under an explicit term of the
CBA, which provides that the Arbitration Board’s function is to interpret the provisions of
the CBA and decide cases of alleged violations.74
Alcoa presents a somewhat more nuanced argument on the question of an implied
waiver than the Union acknowledges. While tacitly accepting the Union’s claim that
generally a “beyond the scope” claim is waived when no objection is raised prior to
commencement of the arbitration, Alcoa contends that no objectionable issue existed in the
question that was referred to arbitration but asserts that a basis for objection arose during the
proceedings when it became clear that the arbitration board intended to purportedly go
beyond the submitted question “to consider the issue of wages, even though such an issue

72

Id. at 4.

73

ECF # 20 at 8.

74

Id. at 9.

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was not one committed to arbitration.”75 Once this approach “became apparent” during the
proceedings of the arbitration board, Alcoa maintains that it then raised the jurisdictional
objection with the umpire at the earliest moment possible, but that it was rejected.76
Briefly stated, the general rule in the Sixth Circuit is that a party may waive an
objection to the jurisdiction of an arbitrator at the moment of submission “by acquiescing in
the arbitration with knowledge of the possible defect.”77 Furthermore, as to whether a waiver
must be expressed or may be implied, the basic rule is that “[a]lthough a waiver may be
implied and not express, there must be evidence in the record to support that implication.”78
Further, the party claiming a waiver bears the burden of proof.79
Here, the Union has pointed to no evidence in the record to support a finding of an
implied waiver of any “scope of authority” argument by Alcoa beyond the mere fact that no
objection was raised with the initial submission. While the parties’ pre-arbitration grievance
discussions suggest that Alcoa might have known that its decision to submit an issue to
arbitration specifically directed to “the amount the company paid” for break time could have

75

ECF # 21 at 3.

76

Id.

77

Nationwide Mutual Ins. Co. v. Home Ins. Co., 330 F.3d 843, 846 (6th Cir. 2003)
(citation omitted) (emphasis added).
78

Carter v. Sowders, 5 F.3d 975, 981 (6th Cir. 1993).

79

Nationwide Mutual Ins. Co., 330 F.3d at 846 (citation omitted).
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involved consideration of wages and compensation, this evidence was not developed or
presented here.80
That said, the burden to show an implied waiver by pointing to evidence in the record
remains with the Union. As noted, the evidence that Alcoa knew of any jurisdictional defect
at the time the matter was submitted to arbitration is mostly suggested by a few references
to pre-arbitration negotiations and not conclusively established. Further, the mere fact that
Alcoa raised its jurisdictional objection during the arbitration is itself not fatal.81
Accordingly, I decline to find on this record that the Union has met its burden of
showing that Alcoa implicitly waived any right to challenge scope of the arbitration.
ii.

Scope of authority discussion
As to the first Michigan Family Resources question – whether the award was beyond

the scope of the agreement – the arbitration board entered the award specifically upon finding
that Alcoa violated Article IX of the CBA.82 The opinion did so by reading the CBA as “an
integrated whole” and finding that it requires any increase in the workload be compensated

80

The arbitration board’s opinion itself offers some insight here. Alcoa’s position in
the grievance discussions preceding arbitration apparently was that workers experienced no
loss in pay as a result of effectively extending the workday. ECF # 19, Attachment 3 at 13.
The Union position was to the contrary. See, id. More fully developed, this might have been
firmer evidence of Alcoa’s knowledge of what the scope of arbitration could include, and so
grounds for an implied waiver.
81

Id.; see also, Batesville Casket Co. v. United Steel Workers of America, Local Union
No. 9137, No. 4:07-CV-12, 2008 WL 4066105, at **6-7 (E.D. Tenn. Aug. 26, 2008)
(citations omitted).
82

ECF # 22 at 8 (citing award).

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for by “pay commensurate with the increased burden.”83 In particular, as noted above, the
arbitration board found Alcoa had violated an implied mutual assumption regarding the
effective pay rate per hour and thus overall compensation, which assumption was relied on
by the Union in agreeing to the 2009 extension of the CBA.84
Alcoa’s arguments on the scope of authority essentially question the extent to which
the background context, past practices, or shared assumptions of an agreement can be
considered to be a part of that agreement, or within its scope, when the agreement is before
an arbitrator. Here, the arbitration board provided a detailed, well-documented discussion of
how every contract contains an implied covenant of fair dealing that informs the parties’
conduct in matters specifically covered by the agreement,85 as well as a more specific
discussion of the past practice regarding break times and how the 2009 contract extension
essentially ratified those practices.86 So understood, the award here by its own terms comes
out of the CBA, which in 2009 ratified or incorporated the parties’ past practices on break
time and which must be interpreted in light of the implied covenants.
While I may not have adopted this result and reasoning upon de novo review, it is
plainly the result of the particular interpretive approach undertaken by the arbitration board
and expressed with some degree of clarity and thoroughness in the opinion. Thus, as the

83

ECF # 19, Attachment 3 at 17.

84

Id. at 20.

85

Id. at 14-16.

86

Id. at 17-22.

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Sixth Circuit in Truck Drivers precisely observed, Alcoa’s argument about the award
exceeding the scope of the CBA is not so much an attack on the scope of arbitration itself,
but “is better characterized as a challenge to the arbitrator’s interpretation” of the CBA.87
So understood, Alcoa’s challenge to the interpretation of the Agreement given by the
arbitration board here does not make out a case that the arbitration board acted beyond the
scope of its authority under that prong of Michigan Family Resources.
b.

Arguably construing and applying the Agreement
Alcoa makes several related arguments as to why the arbitration board was not

arguably construing or applying the Agreement:
(1)

the award did not discuss prior arbitration decisions construing the
same language of the CBA;88

(2)

the arbitration award relied on past practices “rather than the clear and
unambiguous language” of the CBA;89 and

(3)

the arbitration board could not have been construing the CBA since it
reached a decision that violates the CBA.90

The arguments raised here by Alcoa must be viewed in light of Michigan Family
Resources teaching that “in most cases, it will suffice to enforce the award that the arbitrator
appeared to be engaged in interpretation, and that if there is doubt we will presume that the

87

Truck Drivers, 512 F.3d at 217.

88

ECF # 21 at 4-6.

89

Id. at 6-7.

90

Id. at 8-10.

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arbitrator was doing just that.”91 Indeed, the Sixth Circuit is quite clear that “even ‘serious’
interpretive errors by the arbitrator must be tolerated; [the court] may only vacate an award
where the arbitrator was so ignorant of the agreement’s plain language ‘as to make
implausible any contention that the arbitrator was construing the contract.’”92
Here, this arbitration award “cannot be said to be so untethered from” the CBA as to
warrant its reversal.93 The award here, as was the case in Michigan Family Resources, “has
all the hallmarks of interpretation[, in that it] quotes from and analyzes the pertinent
provisions of the contract, and at no point does [it] say anything to indicate that the
[arbitration panel] was doing anything other than trying to reach a good-faith interpretation
of the contract.”94 Indeed, as discussed above, the award opinion clearly sets forth its
interpretation of the CBA and supports that interpretation with a relatively thorough
discussion of the reasons.
The fact that Alcoa would have preferred that the contract interpretation place greater
weight on allegedly relevant past arbitrator’s interpretations95 while affording lesser weight
to the past practices of the parties, or look solely to the contract language without

91

Michigan Family Resources, 475 F.3d at 753.

92

Kroger Company v. United Food & Commercial Workers Union Local 876, 284 F.
App’x 233, 239 (6th Cir. 2008) (quoting Michigan Family Resources, 475 F.3d at 753).
93

Id.

94

Michigan Family Resources, 475 F.3d at 754.

95

See, ECF # 19 at 14-15. The past decisions all predate the changes in idle time
compensation.
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consideration of any implied covenants or mutual assumptions, plainly does not disturb the
underlying point that the present award represented a situation where the arbitration board
opinion is arguably seeking to construe or apply the CBA in the context of the changes to
break times. As the Sixth Circuit noted in Appalachian Regional Healthcare, Inc. v. Kentucky
Nurses Association,96 an arbitration award that relies on past practice and “applie[s] context
to interpret seemingly explicit97 language,”will be enforced as one where “the arbitrator
appeared to be engaged in interpretation.”98
Again, no matter whether the arbitration board’s interpretation of the CBA here was
a “serious” mistake, or otherwise “improvident” or even “silly,” the reviewing court “cannot

96

Appalachian Regional Healthcare v. Ky. Nurses Ass’n, No. 06-6470, 2007 WL
4269063 (6th Cir. Dec. 4, 2007).
97

As to what constitutes explicit contract language, the Sixth Circuit suggests in
Kroger that only such “cut-and-dry numerical” contract language as a precise wage amount
will be considered to have such plain meaning that no interpretation is needed. Kroger, 284
F. App’x at 240 n.3 (citation omitted). Moreover, even Kroger does not address a situation
where otherwise plain language becomes ambiguous by changed circumstances.
98

Appalachian Regional, 2007 WL 4269063, at *2. Dematic Corp. v. UAW, 635
F. Supp. 2d 662 (W.D. Mich. 2009), cited by Alcoa as proof that reference to past practice
is somehow impermissible in interpreting a contract (ECF # 21 at 7), does not stand for so
sweeping a holding. Rather, Dematic upholds the unremarkable basic principle of contract
interpretation that an unambiguous clause of a contract will be enforced despite any prior
past practices to the contrary. Dematic, 635 F. Supp. 2d at 673. It is this use of past practice
to modify clear and unambiguous contract language that is mentioned in the quotation cited
by the arbitration board as being “controversial.” Opinion at 19. Dematic does not address
the situation, as here, where unambiguous past practice was used to explain or clarify
ambiguity created by interpreting the contract in the context of the new work schedules.
While Alcoa suggests that no ambiguity was ever specifically cited by the arbitration board,
ECF # 21 at 7, the opinion itself shows that the arbitration board opinion went to some length
to detail the contours of the ambiguity it found, Opinion at 21-23, before concluding that “to
some extent, there is contractual ambiguity,” Opinion at 23.
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disturb it” under Michigan Family Resources unless one of the specific grounds for reversal
is established.99 As discussed, I find that Alcoa has not shown that the opinion failed to
arguably construe or apply the CBA. Thus, Alcoa has not established a basis for overturning
that opinion.
c.

The Union’s counterclaim
In its counterclaim,100 the Union seeks to: (1) confirm the arbitration decision and

award, (2) order Alcoa to comply with that decision, and (3) obtain prejudgment interest
retroactive to August 14, 2012.101
As has been extensively discussed, by virtue of denying Alcoa’s motion for summary
judgment and granting that of the Union’s, the decision and award of the arbitration is
confirmed. Further, that decision of itself discussed compliance by remanding the issue of
break times “to the parties so that they can develop a factual record and make the appropriate
adjustments, in light of the foregoing opinion.”102 In particular, the award notes that there are
“a great many ways” the parties might reconcile their “competing theories and interests” in
fashioning a remedy, and so the award specifically left any resolution to the parties at the
negotiating table, with the arbitration board retaining jurisdiction over that process.103

99

Id. (quoting Michigan Family Resources, 475 F.3d at 753).

100

ECF # 7.

101

Id. at 3-4.

102

Award at 25.

103

Id.

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With that clear statement of the award in mind, the Union’s counterclaim is denied
insofar as it seeks to order Alcoa’s compliance with the decision or to obtain retroactive
prejudgment interest. First, there is no reason to believe that a separate order of this Court
is required to obtain Alcoa’s further compliance with the arbitration award and decision once
it has been affirmed here. Further, given that there is now no known amount of compensation
determined in the award itself, and also given the unambiguous direction of the award to the
parties to work out all the details of the remedy by themselves at the negotiating table under
the continuing jurisdiction of the arbitration board, I conclude that the counterclaim’s request
for an immediate award of prejudgment interest on a non-specific amount to be determined
later by further negotiations must be denied as premature.

Conclusion
For the foregoing reasons, the motion for summary judgment by Alcoa is denied and
the summary judgment motion of the Union is granted. The counterclaim of the Union is
granted in part and denied in part as is more fully set forth above.
IT IS SO ORDERED.

Dated: December 31, 2013

s/ William H. Baughman, Jr.
United States Magistrate Judge

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