O-N Minerals (Luttrell) Company v. International Chemical Workers Union Council, Local Union 1036-C

Filing 40

MEMORANDUM OPINION whereby plaintiff's motion for summary judgment 25 be, and is hereby, DENIED, defendant's motion for summary judgment 23 be, and is hereby, GRANTED; plaintiff's motion to strike the affidavit of Mike Elick 28 be, and is hereby, GRANTED; and defendant's motion to strike and/or not consider the Declaration of Debbie Perry 35 be, and is hereby, GRANTED. A separate judgment shall enter concurrently herewith. Signed by District Judge William O Bertelsman on September 12, 2013. (AYB)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TENNESSEE
NORTHERN DIVISION AT KNOXVILLE

CIVIL ACTION NO. 3:12-cv-159 (WOB-HBG)

O-N Minerals (Luttrell) Company
D/B/A Carmeuse Lime & Stone

VS.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

Int’l Chemical Workers Union Council,
Local Union 1036-C

DEFENDANT

This is an action under the Labor-Management Relations Act,
29 U.S.C. '' 141, et seq., and the Federal Arbitration Act, 9
U.S.C. '' 1, et seq., to vacate the remedy granted in an
arbitration award.

Defendant has counterclaimed to enforce the

remedy granted by the arbitrator.

This matter is before the

Court on the parties= cross motions for summary judgment.
Finding oral argument to be unnecessary, the Court now
issues the following Memorandum and Opinion and Order.
Factual and Procedural Background
The Plaintiff, Carmeuse Lime & Stone Company (“the
Company”), is a producer of lime and limestone products.

1

(R.

944).

1

The Defendant, the International Chemical Workers Union

Council (“the Union”), represents the employees of Carmeuse.

A

union relationship was created between the employer and the
Union in 1993 when the Union was certified as the bargaining
representative for the employees of Tenn. Lutrell Company.
(Id.)

The first Collective Bargaining Agreement (“CBA”) between

the employer and the Union was in 1994, with following CBAs
between various employers and the Union in 1997, 2000, 2003,
2005, 2007 and 2009.

(R. 151-52).

over the business in 2008.

The current employer took

(R. 953).

The Union filed a grievance on January 6, 2011, under the
current 2009 CBA, after the Company posted unilateral mid-term
changes to the Work Rules on January 3, 2011, which went into
effect on January 10, 2011.
can be found R.720-54).

(R. 74, R. 319, the entire 2009 CBA

The grievance stated: “Work Rules and

Drug Policies stay the same and not be changed, will be willing
to discuss during next negotiations.”

(R. 319).

The Company denied the grievance, and the grievance was
then submitted to final and binding arbitration before Louis
D’Amico (“the Arbitrator”).
December 8, 2011.

(R. 1).

The arbitration hearing was held on
On February 25, 2012, the Arbitrator

1
R. stands for the Administrative Record submitted by the Parties,
which is found at Docket #22.
2

issued his arbitration award (“the Award”), which sustained the
grievance.

(R. 940-59).

The Award found that the Company

violated the parties’ 2009 CBA in its “implementation and
enforcement of the points-based attendance and lateness policy
that was apparently posted on or about April 12, 2010, and its
unilateral posting of the revised ‘Work Rules’ on or about
January 10, 2011.”

(R. 958).

Thus, there are two changes to

the Work Rules that are at issue: the attendance policy changes
that were posted on April 12, 2010, which adopted a “no fault”
attendance policy, and the other Work Rules changes posted
January 10, 2011.

The April 2010 changes were to the attendance

policy while the January 2011 changes included changes to the
discipline policy, the rules of conduct, the safety rules, the
drug and alcohol policy, the sexual harassment policy, and the
EEO policy.

(R. 401-420).

There is a disagreement over whether the April 2010
attendnace policy changes were part of the grievance.

Wendell

Wise, the employee who filed the grievance, when asked, during
the arbitration hearing, by the Company’s counsel whether the
Union had grieved the changes to the attendance policy said “No,
we didn’t.”

(R. 196).

Then, on redirect, he was asked by the

Union’s counsel: “the union did not file a grievance on that
particular case [attendance policy]; is that correct?” and Mr.
3

Wise responded: “That’s correct.”

(R. 198).

However, the Union

points to an exchange between the arbitrator and Mr. Wise as
proof of the scope of the arbitration, (R. 185-86), which
involved a hypothetical question asked by the Arbitrator.
177-86).

(R.

The Arbitrator added Mr. Wise’s response, verbatim, in

the Award, finding that the attendance policy was before him.
The Union asserts, and the Arbitrator found, that the Union
negotiated the Work Rules (which are a separate document from
the CBA) in 1998 and again in 2005.

(R. 953).

The Arbitrator

found that when the Company negotiated the 2009 CBA, it then, in
accord with “past practice,” began negotiating the Work Rules,
which include the attendance policy, with the Union.

The

Company offered new Work Rules, the Union offered counterproposals, and the Company then withdrew its proposals.
955).

(R.

The Arbitrator found that all of this indicated that the

Work Rules were “part and parcel” of the CBA, and mandatory
bargaining over any changes was required.

(R. 956).

Analysis
The Company’s principal argument is that the Arbitrator
used extrinsic evidence in interpreting the CBA, in violation of
the CBA itself, which shows the Arbitrator failed to arguably
construe the CBA.

In addition, the Company asserts that the

Arbitrator had no jurisdiction over the grievance before him,
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because the Union failed to grieve the matter when the “no
fault” attendance policy was adopted in 2010, although the Union
did file a charge before the NLRB, which it lost.
The Union argues that the Arbitrator arguably construed the
CBA by looking at the past practice of the parties, and finding
that the Work Rules were incorporated into the CBA.

In

addition, the Union argued that such drastic alterations of
long-standing and critically important policies were not waived
by the Union for failing to grieve prior changes, and the
changes could not be adopted unless additional bargaining
occurred.
The Arbitrator held:
As to the Employer’s contention that the union had
waived bargaining rights by acceding to unilateral
changes in 2009 and 2010, the Board has long held that
a failure to invoke bargaining rights to certain
changes in the past does not enact a waiver of such
rights over other changes in the future. JohnsonBateman, Supra at p. 188. “It is not true that a
right once waived under the Act is lost forever. Each
time new rules are issued,” the Court continued, “the
union has the election of requesting negotiations or
not. An opportunity once rejected does not result in
a permanent close out.” NLRB v. Miller Brewing
Company, 408 F.2nd 12, 15 (C.A. 9 1969). See also
Amoco Chemical Co., 328 NLRB 1220, 1222 (1999). The
Employer makes much of the Union’s lack of a grievance
in the Employer’s action implementing various policies
and in 2008 and 2009. The one page policies on “No
Idle”, “Hot Work Permit” and “Use of Seat Belts”
direct employees to be safe in their operation of
either plant equipment or their own vehicles. (See
ER. Ex. No. 15) (TR. 176-177, 225, 227-228). As Mr.
Wise testified, all employees and management here
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observe safety – you “don’t argue safety.” The Union
was simply being reasonable in their approach to these
policies posted before their becoming effective.
(R. 954, 955.)
Under Sixth Circuit precedent, this Court’s review of an
Arbitrator’s decision in a labor arbitration is extremely
narrow:

“whether the arbitrator is even arguably construing or

applying the contract and acting within the scope of his
authority.”

Brotherhood. of Locomotive Eng’rs & Trainmen v.

United Transp. Union, 700 F.3d 891, 901-02 (6th Cir. 2012).

See

also Michigan Family Res., Inv. v. Serv. Emps. Int’l Union Local
517M, 475 F.3d 746 (6th Cir. 2007); Totes Isotoner Corp. v.
Int’l Chem. Workers Union Council/UFCW Local 664C, 532 F.3d 405
(6th Cir. 2008).
The Brotherhood court also emphasized that the same
restrictive review was applicable to the Arbitrator’s decisions
regarding what issues were before him or her:
But what of the deference due to an arbitrator's
interpretation of the issues submitted to him? By what
standard are courts to review a party's claim that an
arbitrator exceeded his authority because he decided
issues the parties did not submit to him, or relied on
materials the parties did not present? Although
Michigan Family was silent on this matter, our case
law is clear that an arbitrator's authority is not
strictly confined to the “technical limits of the
submission.” Int'l Ass'n of Machinists & Aerospace
Workers v. Tenn. Valley Auth., 155 F.3d 767, 772 (6th
Cir. 1998) (internal quotations and citation omitted).
This court has reasoned:
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Considering the strong presumptions in favor
of a party's right to arbitration and the
extent of an arbitrator's authority, it
would be a strange and grudging
interpretation of [the] Steelworkers Trilogy
to demand that arbitrators stay narrowly
within the technical limits of the
submission.... [T]he presumption of
authority that attaches to an arbitrator's
award applies with equal force to his
decision that his award is within the
submission. Johnston Boiler Co. v. Local
Lodge No. 893, Int'l Bhd. of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers &
Helpers, AFL–CIO, 753 F.2d 40, 43 (6th Cir.
1985).
Bhd. of Locomotive Eng’rs & Trainmen, 700 F.3d at 902 (emphasis
added).
The Arbitrator’s award here makes clear that he was
interpreting the CBA in this case, holding that the subject of
the work rules and attendance policies could not be imposed
during the term of the contract, unless there was renewed
bargaining.

Under the above authority, therefore, the Court

concludes that the award must be enforced.

Therefore, having reviewed this matter, and the Court being
otherwise sufficiently advised,
IT IS ORDERED: that plaintiff’s motion for summary judgment
(Doc. 25) be, and is hereby, DENIED, defendant’s motion for
summary judgment (Doc. 23) be, and is hereby, GRANTED;
plaintiff’s motion to strike the affidavit of Mike Elick (Doc.
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28) be, and is hereby, GRANTED; and defendant’s motion to strike
and/or not consider the Declaration of Debbie Perry (Doc. 35)
be, and is hereby, GRANTED. A separate judgment shall enter
concurrently herewith.
This 12th day of September, 2013.

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