Delek Refining, Limited v. Local 202, Untd Steel ( 2018 )


Menu:
  •      Case: 17-40593   Document: 00514496319     Page: 1   Date Filed: 06/01/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 17-40593                           Fifth Circuit
    FILED
    June 1, 2018
    DELEK REFINING, LIMITED,                                         Lyle W. Cayce
    Clerk
    Plaintiff - Appellant
    v.
    LOCAL 202, UNITED STEEL, PAPER AND FORESTRY, RUBBER,
    MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE
    WORKERS INTERNATIONAL UNION, AFLCIO,
    Defendant - Appellee
    Appeal from the United States District Court
    for the Eastern District of Texas
    Before HIGGINBOTHAM, SOUTHWICK, and COSTA, Circuit Judges.
    GREGG COSTA, Circuit Judge:
    Instead of using its employees, Delek Refining hired contract workers to
    replace a chemical reactor at one of its refineries. An arbitrator found that
    doing so violated the company’s collective bargaining agreement (CBA), which
    requires that employees get first crack at new work unless certain exceptions
    apply. In light of this provision and the deference courts give to arbitrators’
    decisions, we agree with the district court that Delek’s challenge to the award
    should be dismissed. We also agree that the union is entitled to attorneys’ fees
    for having to defend the award in court.
    Case: 17-40593    Document: 00514496319    Page: 2   Date Filed: 06/01/2018
    No. 17-40593
    I.
    In 2012, Delek and the union representing the company’s refinery
    employees entered into the CBA. This appeal arises out of Delek’s decision
    that same year to replace the primary chemical reactor within the refinery’s
    Alkylation-Cryogenic Unit. The project required a complete shutdown of the
    unit and took roughly four weeks to complete. Delek hired 50 full-time contract
    workers to finish the preparation and over 200 such workers during much of
    time the unit was shut down and the reactor replaced. It did assign some
    employees to the project. Eight maintenance employees served as “contract
    coordinators,” with others performing more limited tasks. Delek contends it
    did not use more employees because it needed them to do day-to-day
    maintenance tasks at the refinery and because the replacement of the reactor
    required specialized work that the employees were not certified to perform.
    The union filed a grievance, arguing that Delek violated the CBA by using
    contract workers instead of maintenance employees and that in so doing it
    deprived the employees of overtime pay.
    Article 1.4 of the CBA contains a broad management rights provision
    under which the union “recognizes that the right of Management is to manage
    the plant, to hire, fire and discipline for just cause.” But those rights are
    “subject to and restricted by the specific provisions” of the CBA. Among those
    provisions is Article 8.1, which addresses the use of contract workers and
    reads: “Unless necessitated by extreme economic, safety or environmental
    reasons, the Company shall offer any maintenance, operations, environmental
    or material handling work to Bargaining Unit employees prior to utilizing
    contractors to perform such work, providing such use of Bargaining Unit
    employees does not result in excessive overtime.”
    The parties also agreed to have grievances like this one decided by an
    arbitrator whom the CBA grants “jurisdiction and authority to interpret and
    2
    Case: 17-40593    Document: 00514496319     Page: 3   Date Filed: 06/01/2018
    No. 17-40593
    apply the provisions in the determination of such grievance but he shall not
    have jurisdiction or authority to add to or alter in any way the provisions of
    this Contract.” The arbitrator’s decision is “final and binding.”
    The arbitrator held a one-day hearing before sustaining the union’s
    grievance in a written opinion.      Delek contended that “other applicable
    provisions” of the CBA “cloak[ed] Section 8.1’s requirements with an essential
    and implicit element of reasonableness,” and its principal justification for
    hiring the contract workers was that using more maintenance employees
    would have been unreasonable from a safety and environmental perspective
    given the scope of this project. Delek also argued in posthearing briefing that
    using additional employees would have resulted in excessive overtime.
    After reciting the facts and relevant CBA provisions, the arbitrator
    concluded that the “language in Article 8.1 . . . is clear along with a long
    standing past practice on assigning work to the Bargaining Unit maintenance
    employees prior to hiring subcontractors.” He thus awarded overtime pay to
    the maintenance employees who were not assigned to the project.
    Delek interpreted the award to reach only the three weeks of preparatory
    work that occurred before the unit shutdown and reactor replacement. The
    union unsurprisingly disagreed with that limited view, as it excluded the
    period when the bulk of the contract workers were hired. In light of that
    disagreement, the union sought clarification from the arbitrator.           The
    arbitrator responded that his decision applied to both the preparation and
    replacement phases of the project. In doing so, he stated that “Section 8.1 of
    the CBA is rather specific” and quoted its command that “The company shall
    offer any maintenance, operations, environmental or material work to
    Bargaining Unit employees prior to utilizing contractors to perform such
    work.” This quotation did not include the caveats that appear at both the
    3
    Case: 17-40593    Document: 00514496319     Page: 4   Date Filed: 06/01/2018
    No. 17-40593
    beginning (“extreme economic, safety or environmental reasons”) and end
    (“excessive overtime”) of that provision.
    Delek quickly latched onto the abbreviated quotation even though the
    request for clarification did not directly relate to either of those exceptions.
    The company sought further clarification, asserting that the arbitrator’s email
    showed that he had misread Article 8.1 as giving bargaining unit employees
    an “unqualified” right to perform additional work. The arbitrator reviewed the
    four-page request for reconsideration and rejected it because Delek’s view
    would “have the effect of making the contracting clause 8.1 meaningless” as
    any “[f]uture overtime work could be declared excessive and denied.”
    Still unsatisfied, Delek took the fight to federal court.      The union
    counterclaimed, seeking compliance with the award and attorneys’ fees. Both
    parties moved for summary judgment. The district court, agreeing with a
    magistrate judge’s recommendation, denied Delek’s motion, granted the
    union’s, and awarded attorneys’ fees.
    II.
    We first examine Delek’s contention that the district court erred in
    upholding the arbitral award. A perceived benefit of arbitration is that it may
    provide a more efficient means of resolving disputes. See Oxford Health Plans
    LLC v. Sutter, 
    569 U.S. 564
    , 568–69 (2013). Tacking judicial review onto
    arbitration undermines much of the savings in cost and time the arbitration
    achieves. See id.; United Steelworkers of Am. v. Enter. Wheel & Car Corp., 
    363 U.S. 593
    , 599 (1960). So, as fans of the New England Patriots and Dallas
    Cowboys have recently learned, a court’s review of arbitral awards interpreting
    labor agreements is “exceedingly deferential.” Brabham v. A.G. Edwards &
    Sons Inc., 
    376 F.3d 377
    , 380 (5th Cir. 2004) (noting that courts overturn such
    awards only on “very narrow grounds”); see NFL Mgmt. Council v. NFL Players
    Ass’n, 
    820 F.3d 527
    , 536 (2d Cir. 2016) (applying that deference to the
    4
    Case: 17-40593     Document: 00514496319     Page: 5   Date Filed: 06/01/2018
    No. 17-40593
    detriment of Tom Brady); see also NFL Players Ass’n v. NFL, 
    874 F.3d 222
    ,
    227–28 (5th Cir. 2017) (finding the lawsuit premature because the arbitrator
    had yet to make a final decision that was unfavorable to Ezekiel Elliott). As
    long as an arbitrator’s decision draws its essence from the CBA, we will sustain
    it. Executone Info. Sys., Inc. v. Davis, 
    26 F.3d 1314
    , 1320, 1324 (5th Cir. 1994);
    see also United Paperworkers Int’l Union v. Misco, Inc., 
    484 U.S. 29
    , 36 (1987)
    (noting that an arbitrator cannot fashion his “own brand of industrial justice”
    (quoting Enterprise Wheel, 
    363 U.S. at 597
    )). This deference means that even
    if we believe the arbitrator seriously erred in his fact finding or contract
    interpretation, Misco, 
    484 U.S. at 38
    , we will uphold a decision that is
    rationally inferable from the purpose of the CBA. Executone, 
    26 F.3d at 1325
    .
    Though this court interprets that essence standard “expansively,” an
    arbitrator’s power is not unlimited. Dow Chem. Co. v. Local No. 564, Int’l
    Union of Operating Eng’rs, 83 F. App’x 648, 651–52 (5th Cir. 2003). Our
    deference does not extend to those instances when the arbitrator exceeds the
    jurisdictional limits drawn in a CBA, Albermarle Corp. v. United Steel Workers
    ex rel. AOWU Local 103, 
    703 F.3d 821
    , 824 (5th Cir. 2013), or acts contrary to
    its express provisions, Smith v. Transp. Workers Union of Am., Local 556, 
    374 F.3d 372
    , 375 (5th Cir. 2004). An arbitrator cannot, for example, ignore the
    plain language of a contract. Misco, 
    484 U.S. at 38
    ; see, e.g., Delta Queen
    Steamboat Co. v. Dist. 2 Marine Eng’rs Beneficial Ass’n, 
    889 F.2d 599
    , 602–04
    (5th Cir. 1989) (overturning the arbitrator’s decision to reinstate a riverboat
    captain who the arbitrator found “grossly careless” because the CBA mandated
    discharge for carelessness).    In this situation an arbitrator is no longer
    applying or interpreting the agreement but rewriting it.
    One of the rare situations when we have vacated an award because it
    rewrote the CBA involved the issue in this case: a decision to hire contractors.
    An arbitrator sustained the union’s grievance challenging a company’s decision
    5
    Case: 17-40593     Document: 00514496319       Page: 6   Date Filed: 06/01/2018
    No. 17-40593
    to hire contract workers in spite of a CBA provision granting management an
    unrestricted right to do just that. Beaird Indus., Inc. v. Local 2297, Int’l Union,
    
    404 F.3d 942
    , 945 (5th Cir. 2005). The arbitrator overrode that bargained-for-
    right because he was “not convinced that the cost savings realized from the
    subcontracting outweigh[ed] the adverse impact on the CBA.” 
    Id.
     A panel of
    this court vacated that award because no provision in the CBA modified the
    company’s unambiguous right to hire contract workers. 
    Id.
     at 946–47; see also
    Rock-Tenn Co. v. Paper Workers Int’l Union, 108 F. App’x 905, 907 (5th Cir.
    2004) (vacating an arbitral award because it ignored an unrestricted
    contracting provision and “wrote into the CBA a new [limiting] provision”).
    In contrast to Beaird’s rejection of an arbitration award that directly
    conflicted with the CBA, we have repeatedly upheld prounion awards when the
    CBA was ambiguous or silent about a company’s contracting rights. One of
    these cases involved a CBA clause preserving the company’s preunionization
    ability to “determin[e] . . . the nature and extent of work, if any, to be contracted
    or transferred out and the persons, means and methods to be so utilized.”
    Folger Coffee Co. v. Int’l Union, Local Union No. 1805, 
    905 F.2d 108
    , 109 n.3
    (5th Cir. 1990). Despite management’s negotiating a clause that preserved its
    general right hire contractors, the arbitration panel determined that without
    specific language defining the scope of that right the contracting decision must
    be made in good faith, represent a reasonable business determination, and not
    seriously weaken the union. 
    Id. at 111
    . This court deferred to the arbitration
    panel’s conclusion that Folger did not have “a carte blanche right” to contract,
    in part because the general purpose of the CBA was to strengthen ties between
    the company, its employees, and the union. 
    Id.
     Given this determination that
    the clause granting the contracting rights was “neither specific nor
    unambiguous,” the arbitrators properly considered other factors, and as a
    6
    Case: 17-40593       Document: 00514496319          Page: 7     Date Filed: 06/01/2018
    No. 17-40593
    result the award favoring the union drew its essence from the CBA. 1 
    Id.
     at
    111–12.     An easier case for deference involved a CBA that contemplated
    subcontractors would do some work, for example it discussed their rates of pay,
    but did not specifically grant the company a right to subcontract.                        See
    Resolution Performance Prods., LLC v. Paper Allied Indus. Chem. & Energy
    Workers Int’l Union, Local 4-1201, 
    480 F.3d 760
    , 762 (5th Cir. 2007). In light
    of this silence about the circumstances in which contractors could be used, we
    deferred to the arbitrator’s ruling that the CBA “does not permit wholesale
    subcontracting.” 
    Id. at 767
    .
    The Delek CBA has something none of these other cases had: a provision
    prohibiting the use of contract workers until employees have been given an
    opportunity to perform the work. In a sense it thus presents the opposite
    situation of Beaird. To be sure, Article 8.1 contains two exceptions we have
    already noted. Delek can overcome the bar on hiring contract workers if there
    were “extreme economic, safety or environmental reasons” for doing so or if
    giving the work to employees would result in “excessive overtime.”                        But
    “extreme” and “excessive” both connote situations outside the ordinary,
    indicating the default position is that bargaining unit employees should get
    first dibs on assignments. Or at least an arbitrator could reasonably read
    Article 8.1 that way.        “Extreme” and “excessive” are also judgment-laden
    terms.     Because considerable discretion will be involved in determining
    whether one of these exceptional situations exists, it is difficult to see how an
    arbitrator’s assessment of what is “extreme” or “excessive” can amount to the
    direct conflict with the CBA that is necessary for judicial override. Delek’s
    1Though it has been questioned, see Beaird, 
    404 F.3d at 946
    , Folger remains binding
    law, Folger Coffee Co. v. Int’l Union, 368 F. App’x 605, 606 (5th Cir. 2010). In any event, our
    decision has not depended on Folger because the CBA in this case has a default provision
    that employees be used before contractors.
    7
    Case: 17-40593      Document: 00514496319    Page: 8   Date Filed: 06/01/2018
    No. 17-40593
    challenge to the arbitral award applying a CBA that has a qualified ban on
    contracting thus starts on much weaker ground than the challenges we have
    previously considered involving CBAs with express or implicit provisions
    allowing contracting.
    Perhaps recognizing this, Delek does not just contend that the arbitrator
    exercised bad judgment in refusing to find the exceptions applied; it also
    asserts that he ignored them altogether. This argument does not focus on the
    initial award. That decision, which was more than two single-spaced pages,
    relies on Article 8.1, which it quotes in full, exceptions and all. The arbitrator
    did not say that Delek failed to prove the exceptions, but not giving detailed
    reasons for an arbitral award does not amount to the clear contradiction of a
    CBA term that is needed for a successful court challenge. Enterprise Wheel,
    
    363 U.S. at 598
    . Delek thus hangs its hat on the arbitrator’s later response to
    the inquiry about whether his ruling applied only to the preparation phase.
    That one-paragraph email response again quoted Section 8.1 but recited only
    the general prohibition on contracting without repeating the exceptions that
    come before and after it. The shortened quotation prompted Delek to send a
    lengthy request for reconsideration asserting the exceptions, which the
    arbitrator denied.
    Nothing in the clarification process leads us to vacate the award. It is
    understandable why the arbitrator, while citing the employee hiring
    preference in his email, did not mention the caveats. The question he was
    responding to had nothing to do with the exceptions or even involved Delek
    asking for reconsideration of the merits ruling on any basis; the parties only
    wanted to know how much overtime was owed. After the omission of the
    exceptions prompted Delek to seek reconsideration on the ground that the
    arbitrator had ignored them, the arbitrator disagreed and explained that
    Delek’s view of the “excess overtime” language threatened to override the
    8
    Case: 17-40593     Document: 00514496319      Page: 9   Date Filed: 06/01/2018
    No. 17-40593
    Article 8.1 presumption that bargaining units would get first priority on work.
    Delek views this as the arbitrator reading the overtime language out of the
    contract.   But the arbitrator’s position that Delek’s expansive view of the
    overtime provision would render the general ban on contracting meaningless
    is a reasonable one. If almost any overtime is “excessive,” then the right the
    union bargained for in Article 8.1 is essentially worthless. In stating that only
    excessive overtime should allow Delek to hire contractors, the CBA recognized
    that Delek had to give employees the first option to take additional work if only
    some unspecified amount of ordinary overtime would result. The arbitrator
    was empowered to draw the line between routine and excessive overtime.
    But even if the email clarifications create doubt about whether the
    arbitrator recognized the exceptions, ambiguity is not enough to vacate an
    award. Enterprise Wheel, 
    363 U.S. at 598
    ; see also Brown & Pipkins, LLC v.
    SEIU, Local 32BJ, 
    846 F.3d 716
    , 724 (4th Cir. 2017) (rejecting the view that
    an arbitral award must be free of ambiguity to be upheld). A technical parsing
    of the informal emails the arbitrator provided in response to requests for
    clarification is not consistent with the substantial deference we owe arbitration
    decisions. “Arbitrators have no obligation to the court to give their reasons for
    an award.” Enterprise Wheel, 
    363 U.S. at 598
    . Part of what a party gives up
    in agreeing to private dispute resolution is the greater process courts provide,
    although even in a judicial proceeding there is no guarantee that a party will
    receive detailed reasons for a decision. See, e.g., 5TH CIR. R. 47.6 (allowing this
    court to affirm a ruling without an opinion in certain circumstances). Although
    explanations of arbitration awards are not required, they are of course better
    for the parties and reviewing courts. Enterprise Wheel, 
    363 U.S. at 598
    . So
    the Supreme Court has cautioned that overturning awards based on
    ambiguities that can be identified in the explanations arbitrators choose to give
    would discourage them from providing those reasons in the first place. 
    Id.
    9
    Case: 17-40593       Document: 00514496319         Page: 10     Date Filed: 06/01/2018
    No. 17-40593
    That concern would be amplified if we were to use a lack of precision in a
    clarifying email to undo an arbitrator’s decision when the result does not
    directly contravene the CBA.
    The exceptions to the contracting ban require judgment calls.                    The
    parties agreed to be bound by the judgment of the arbitrator. Because the
    arbitrator’s exercise of his discretion does not conflict with the CBA, we will
    not vacate the award.
    III.
    For the same reason that judicial review of arbitration awards is limited,
    a party may be awarded attorneys’ fees if it has to fight back a court challenge
    to the award it obtained in the parties’ chosen forum. Int’l Ass’n of Machinists
    & Aerospace Workers, Dist. 776 v. Tex. Steel Co., 
    639 F.2d 279
    , 284 (5th Cir.
    1981) (“This sanction is necessary lest federal labor policy be frustrated by
    judicial condonation of dilatory tactics that lead to wasteful and unnecessary
    litigation.”). Once a district court has awarded fees, we review only for abuse
    of discretion. Bruce Hardwood Floors v. UBC, S. Council of Indus. Workers,
    Local Union No. 2713, 
    103 F.3d 449
    , 453 (5th Cir. 1997).
    The cases say that fees should be awarded when the challenge to the
    labor arbitration is “without justification.” 
    Id.
     This label has led to some
    confusion, with Delek arguing it suggests that fees should be awarded only if
    the party brought a frivolous challenge, meaning one that was “brought in bad
    faith to harass rather than to win.” See Lummus Glob. Amazonas, S.A. v.
    Aguaytia Energy Del Perud, S.R. Ltda., 
    256 F. Supp. 2d 594
    , 646 (S.D. Tex.
    2002) 2 (noting that a prevailing party may be entitled to attorneys’ fees when
    2Delek also misreads this district court case. The case cites frivolity as a reason to
    award fees in addition to the fact that the challenge was “without justification.” Lummus
    thus appears to recognize that a determination that a challenge was “without justification”
    does not require finding it was frivolous. 
    256 F. Supp. 2d at 646
    .
    10
    Case: 17-40593       Document: 00514496319    Page: 11   Date Filed: 06/01/2018
    No. 17-40593
    its opponent’s challenge to an arbitral award is without justification or legally
    frivolous). This misreads the law. “Without justification” refers not to the
    strength of the challenge but to the type.        On one side of the divide are
    challenges to an arbitrator’s jurisdiction or authority, which do not result in a
    fee award even if they come up short. On the other are those that go to the
    “intrinsic merits” of a dispute, which justify fees even if not frivolous. Compare
    Executone, 
    26 F.3d at 1321
     (refusing to award attorneys’ fees because
    challenger argued award was “upon a matter not submitted” to the arbitrator),
    with Texas Steel, 
    639 F.2d at 284
     (finding that fees should have been awarded
    in light of the company’s challenge to an arbitrator’s interpretation of a
    contract and discretion in fashioning a remedy).         Court challenges to an
    arbitrator’s jurisdiction are considered “justified” even if they do not succeed
    because it is a common judicial function to determine the scope of an
    arbitrator’s jurisdiction. Kubala v. Supreme Prod. Servs., Inc., 
    830 F.3d 199
    ,
    201 (5th Cir. 2016) (noting that courts ordinarily rule on the arbitrability of
    specific claims). But see Archer & White Sales, Inc. v. Henry Schein, Inc., 
    878 F.3d 488
    , 492 (5th Cir. 2017) (finding that although courts presumptively
    determine the question of arbitrability, a court must first determine whether
    an agreement contains a delegation clause giving the arbitrator that power).
    But when parties have agreed to arbitrate a dispute, a subsequent court
    challenge to the merits is not justified even when that question is close because
    going to court is at odds with the parties’ agreement to be bound by the
    arbitrator’s decision.
    This distinction forces parties that lose arbitration challenges to
    commonly do what Delek tries here: “attempt to transform [a merits] claim into
    an excess-of-powers claim.” Hous. Ref., L.P. v. United Steel, Paper & Forestry,
    Rubber, Mfg., 
    765 F.3d 396
    , 412 (5th Cir. 2014). The company says that it was
    challenging the arbitrator’s authority or jurisdiction in contending he
    11
    Case: 17-40593     Document: 00514496319     Page: 12   Date Filed: 06/01/2018
    No. 17-40593
    disregarded the two caveats and thus ignored the plain language of the
    contract. But a party cannot avoid paying attorneys’ fees by making only a
    conclusory assertion that it is challenging the arbitrator’s “power to make the
    award.” Texas Steel, 
    639 F.2d at 283
    . Delek’s brief shows that is what it is
    doing here: in one breath the company argues that the arbitrator transcended
    his authority, while in another it asserts that he “exercised his contractual
    authority . . . inconsistent with applicable principles of contractual
    construction,” which “necessarily touch[es] upon the ‘intrinsic merits’ of the
    case.” Delek’s challenge goes to the merits as the central issue it raises is
    whether the arbitrator correctly interpreted and applied the exceptions in
    Article 8.1. The district court therefore did not abuse its discretion in finding
    that challenge without justification and subject to a fee award.
    ***
    The judgment of the district court is AFFIRMED.
    12