Truck Drivers L164 v. Allied Waste Sys ( 2008 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0003p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
TRUCK DRIVERS LOCAL NO. 164, a/w International
Plaintiff-Appellant, -
Brotherhood of Teamsters,
-
-
No. 06-1572
,
v. >
-
-
-
ALLIED WASTE SYSTEMS, INC., dba Great Lakes
Defendant-Appellee. -
Waste Services,
-
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 05-73509—Julian A. Cook, Jr., District Judge.
Argued: June 6, 2007
Decided and Filed: January 4, 2008
Before: MARTIN, BATCHELDER, and CLAY, Circuit Judges.
_________________
COUNSEL
ARGUED: Gerry M. Miller, PREVIANT, GOLDBERG, UELMAN, GRATZ, MILLER &
BRUEGGEMAN, Milwaukee, Wisconsin, for Appellant. John A. Libby, LAW OFFICES, Sterling
Heights, Michigan, for Appellee. ON BRIEF: Gerry M. Miller, Nathan D. Eisenberg, PREVIANT,
GOLDBERG, UELMAN, GRATZ, MILLER & BRUEGGEMAN, Milwaukee, Wisconsin, for
Appellant. John A. Libby, LAW OFFICES, Sterling Heights, Michigan, for Appellee.
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. Truck Drivers Local No. 164 (“Union”) appeals
from the district court’s grant of summary judgment in favor of Allied Waste Systems, Inc.
(“Allied”), which vacated an arbitrator’s award ordering reinstatement of Grievant Keith Miller
(“Miller”). On appeal, the Union argues that the district court erred in vacating the arbitrator’s
award. At oral argument, both parties agreed that this case is directly impacted by our recent en
banc decision in Michigan Family Resources, Inc. v. Service Employees International Union, 475
F.3d 746, 752-53 (6th Cir. 2007), which held that courts are without authority to overturn an
arbitrator’s award so long as the arbitrator was “arguably construing or applying the contract and
acting within the scope of his authority.” Id. After carefully reviewing the arbitrator’s decision and
1
No. 06-1572 Truck Drivers Local No. 164 v. Allied Waste Systems Page 2
the parties’ arguments, we find that the arbitrator was faithfully attempting to construe and apply
the terms of the collective bargaining agreement, that the arbitrator was acting within the scope of
his authority, and that the district court lacked legal authority upon which to vacate the arbitrator’s
award. We accordingly REVERSE the district court’s decision and REMAND with instructions
to reinstate the arbitrator’s award and for further proceedings consistent with this opinion in regard
to the Union’s demand for additional back pay.
I.
Allied is engaged in the business of collecting and disposing of nonhazardous solid waste,
and the Union represents Allied’s employees at its Adrian, Michigan, location. Allied acquired its
Adrian, Michigan, facilities from Laidlaw Waste Services in 1999, and for a few years after this
acquisition, Allied and the Union operated under the predecessor collective bargaining agreement
negotiated between Laidlaw and the Union. In May 2003, the Union and Allied entered into a new
agreement, which borrowed in large part from the language of the predecessor agreement.
Several provisions of the May 2003 agreement are relevant to our review of the arbitrator’s
award. Article 18 of that agreement reserves management rights to Allied, stating:
Except as expressly and specifically limited or restricted by a provision of this
Agreement, the Company has and shall retain the full right of management and
direction of the Company and its operations. Such rights and responsibilities of
management include, but are not limited to, the right . . . to discharge and otherwise
discipline employees for just cause.”
Article 8 governs the employer’s right to discharge or suspend employees. Section 8.1 states that
“[t]he right to discharge and the maintenance of discipline shall be the exclusive right and
responsibility of the Company except that the Company shall not discharge or otherwise discipline
an employee without just cause.” Section 8.2 prescribes the allowable discipline for a violation of
the “Company’s Mandatory Safety and Work Rules” — distinguishing between a violation of
Section 1 of those rules, which permits Allied to discharge the employee immediately, and a
violation of Section 2 of those rules, which requires Allied to give the employee at least one warning
notice prior to discharge.
Article 9 governs the arbitration and grievance procedures. Section 9.4 outlines the process
and procedures by which arbitration is to be conducted, and Sections 9.4(D), 9.4(F), and 9.4(G)
define the scope of the arbitrator’s power. Section 9.4(D) states:
[T]he arbitrator shall have no power or authority to amend, alter[,] or modify this
Agreement, but shall be limited to deciding whether or not a violation of its
expressed terms has been committed.
. . . The arbitrator shall have no power to substitute his discretion for that of the
Company in cases where the Company has retained discretion or the right to act
under this Agreement.
Section 9.4(F) provides:
The decision of the arbitrator . . . shall be final and binding upon the parties when
rendered upon a matter within the authority of the arbitrator and within the scope of
the matters subject to arbitration provided in this Agreement, and shall be void
insofar as the decision exceeds the authority of the arbitrator or passes upon matters
not expressly made subject to arbitration under the terms of this Agreement.
No. 06-1572 Truck Drivers Local No. 164 v. Allied Waste Systems Page 3
And most relevant to this dispute, Section 9.4(G), states: “It is understood and agreed that the
degree of discipline up to and including discharge imposed for just cause shall be in the sole
discretion of management and shall not be subject to modification by an arbitrator.” The agreement
also contains a “zipper clause,” which states that the terms of the enacted agreement “shall supersede
and render ineffective any past practices, addendum, letters of understanding, oral or written
agreement as may now exist or as may have existed.”
On April 4, 2005, Allied employee and Union bargaining-unit member, Keith Miller, drove
a garbage collection route normally assigned to another driver. While backing his truck down the
left lane of a dead-end residential street, Miller “hooked” a low-hanging overhead wire, pulling it
from a nearby house. Miller immediately informed dispatch of this incident; Allied supervisors
arrived on the scene and completed a “Notice Form” summarizing the accident. The supervisors
observed that Miller was backing down the wrong side of the street, that Miller violated Allied’s
“Zero Tolerance Safety Guidelines,” and that Miller violated Allied’s “Employee Safe Driving and
Safe Practices.”
On the same day as the accident, Allied suspended Miller without pay pending further
investigation. On the following day, Allied terminated Miller because, according to Allied, he
violated a rule in Section 1 of the Company’s Mandatory Safety and Work Rules, which permitted
immediate discharge under Section 8.2 of the collective bargaining agreement. Two days later,
Miller filed a grievance, contending that he did not violate a Section 1 rule and, consequently, that
Allied should reinstate him with back pay. Within a week, the company denied Miller’s grievance,
and the parties proceeded to arbitration.
At arbitration, the parties vehemently disputed which set of rules comprised the “Company’s
Mandatory Safety and Work Rules” referenced in Section 8.2 of the agreement. The parties
conceded that during negotiation of the current agreement, neither side brought up Section 8.2,
which was the primary cause of this contractual ambiguity. Allied argued that it had been using two
sets of rules — the “Employee Safe Driving and Safe Practices” handbook and the “Zero Tolerance
Safety Guidelines” — and that these rules were the ones referenced in Section 8.2 of the agreement.
The Union contended that the applicable rules were those that were actually entitled “Mandatory
Safety and Work Rules” and were attached to the predecessor agreement. The arbitrator sided with
the Union, reasoning that Allied’s proposed rules had “a different nomenclature than in [Section 8.2
of the agreement] and they ha[d] a different structure — i.e., no Section 1 or Section 2.” After
determining that the Union’s proposed rules applied, the arbitrator concluded that Miller’s conduct
violated Section 2 of those rules — not Section 1 as alleged by Allied — and that the collective
bargaining agreement required Allied to give Miller at least one warning notice prior to discharge.
The arbitrator then analyzed Miller’s termination assuming that Allied’s proposed rules
applied. The arbitrator reasoned that even those rules contemplate degrees of discipline and do not
automatically mandate discharge. For example, the Employee Safe Driving and Safe Practices
handbook permits “disciplinary action up to and including immediate discharge,” and the Zero
Tolerance Safety Guidelines state that Allied generally will conduct “progressive discipline” but that
an employee will be immediately discharged if his improper conduct causes an “accident.” After
acknowledging these degrees of discipline, the arbitrator determined that even though Miller
violated some of Allied’s proposed rules, his termination was inappropriate because this “incident
involved an accident only in an obviously hypertechnical sense: the telephone lines had drooped
far below standards, and [Allied] incurred no loss as a result of the incident.” The arbitrator, in
short, determined that Miller’s discharge was unwarranted under either the Union’s or Allied’s
proposed rules.
Allied cautioned the arbitrator that the collective bargaining agreement severely
circumscribed his authority to review or modify the reasonableness of Miller’s discipline,
No. 06-1572 Truck Drivers Local No. 164 v. Allied Waste Systems Page 4
emphasizing Section 9.4(G)’s admonition that “the degree of discipline . . . imposed for just cause
shall be in the sole discretion of management and shall not be subject to modification by an
arbitrator.” The arbitrator, however, perceived an internal tension between Section 9.4(G), which,
according to Allied, limited the arbitrator’s authority to review or modify the degree of discipline
imposed by management, and Section 8.1, which prohibited Allied from disciplining an employee
without just cause. The arbitrator attempted to reconcile this tension, reasoning:
The term “just cause” entails a two-prong inquiry. First, did the Grievant violate an
Employer rule or policy which warrants discipline? If the answer to the first is in the
affirmative, it is then necessary to consider whether the discipline imposed is
reasonable under the circumstances of the matter before the Arbitrator. The severity
of the discipline is an integral part of the inquiry.
The arbitrator concluded that because the just-cause inquiry required him to consider the
reasonableness of a grievant’s discipline, the agreement implicitly authorized him to evaluate the
severity of Miller’s discipline.
The arbitrator then proceeded to his resolution of the grievance, reiterating that Miller had
violated Section 2 of the Union’s proffered rules as well as various provisions of Allied’s proffered
Employee Safe Driving and Safe Work Practices handbook. The arbitrator made two distinct
findings regarding just cause. First, he held that Allied lacked just cause to terminate Miller because
termination was not “reasonable” and it “exceeded the penalty allowed” in Section 8.2 of the
agreement. Second, he found that Allied had just cause to issue a written warning to Miller because
Section 8.2 of the agreement permitted a warning notice for a violation of Section 2 of the
Mandatory Safety and Work Rules. The arbitrator’s award stated: “The Grievant’s termination is
set aside and, in lieu thereof, a Written Warning may be issued. The Grievant is to be reinstated to
his former position with back pay and benefits . . . .”
Approximately two weeks later, the Union filed suit in district court, seeking to compel
Allied to comply with the arbitrator’s decision, and asking for additional back pay for the period
following the arbitrator’s award. Allied filed its answer and counterclaim, asking the court to vacate
the arbitrator’s award. The parties filed cross-motions for summary judgment. The district court
denied the Union’s motion, granted Allied’s motion, and vacated the arbitrator’s decision. The court
rejected the arbitrator’s conclusion that the rules referenced in Section 8.2 were the “Mandatory
Safety and Work Rules” proposed by the Union, rather than the two sets of rules presented by
Allied. The court reasoned that because the Union’s proffered rules were part of the prior collective
bargaining agreement, the zipper clause, which stated that the new agreement would supersede any
past practices or agreements, voided the application of those rules. The court then, apparently
relying on Section 9.4(G) of the agreement, held: “[I]n altering the discipline that was given to
Miller, the arbitrator exceeded the scope of his authority, and, in doing so, he violated the express
terms of the Collective Bargaining Agreement.” The Union filed a motion for reconsideration
pursuant to Fed. R. Civ. P. 59(e), which was denied by the district court, and the Union filed a timely
notice of appeal to this court.
II.
Although we review the district court’s grant of summary judgment de novo, Gage Prods.
Co. v. Henkel Corp., 393 F.3d 629, 637 (6th Cir. 2004), our review of the underlying “labor-
arbitration decision[] is . . . very limited,” Mich. Family Res., 475 F.3d 746 at 752 (quotations and
citations omitted); see Tenn. Valley Auth. v. Tenn. Valley Trades and Labor Council, 184 F.3d 510,
514-15 (6th Cir. 1999) (“[O]ur review of an arbitration award is one of the narrowest standards of
judicial review in all of American jurisprudence.”) (quotations omitted). This circuit recently
refined the scope of judicial review over labor-arbitration awards, holding that we will consider only
No. 06-1572 Truck Drivers Local No. 164 v. Allied Waste Systems Page 5
the questions of “procedural aberration” outlined by the Supreme Court in United Paperworkers
International Union v. Misco, Inc., 484 U.S. 29 (1987), and Major League Baseball Players
Association v. Garvey, 532 U.S. 504 (2001). See Mich. Family Res., 475 F.3d at 753. The three
questions of procedural aberration ask: (1) “Did the arbitrator act ‘outside his authority’ by
resolving a dispute not committed to arbitration?”; (2) “Did the arbitrator commit fraud, have a
conflict of interest[,] or otherwise act dishonestly in issuing the award?”; and (3) “[I]n resolving any
legal or factual disputes in the case, was the arbitrator ‘arguably construing or applying the
contract’?” Id. “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.” Id. (quotations omitted).
At the outset, we note that the district court did not have the benefit of our recent decision
in Michigan Family Resources. The parties, however, did, but their briefs do not discuss the case,
although they both acknowledged at oral argument that it directly impacts the issues before this
court. The parties have therefore failed to raise their arguments in terms of the three questions of
procedural aberration. Moreover, the Union curiously framed most of its arguments as a challenge
to the district court’s reasoning, rather than focusing on the analysis in the arbitrator’s decision. In
a situation such as this, where we are reviewing de novo the district court’s decision to vacate an
arbitrator’s award, the focus is on the arbitrator’s analysis, not that of the district court. We will
recast the parties’ arguments, placing the proper focus on the arbitrator’s decision and the analytical
approach outlined in Michigan Family Resources.
Under even the most generous reading of Allied’s brief, it does not allege that the arbitrator
engaged in fraud, labored under a conflict of interest, or otherwise acted dishonestly; thus we need
not consider this sort of procedural aberration. But Allied’s arguments impact the remaining two
questions — whether the arbitrator exceeded his authority and whether the arbitrator was arguably
construing or applying the contract — and we will consider both of these issues.
We begin with the question of whether the arbitrator exceeded his authority in issuing his
decision. Allied argues that the arbitrator exceeded his authority by modifying Miller’s discipline
from a termination to a written warning because the collective bargaining agreement prohibited the
arbitrator from modifying the severity of the discipline imposed. This argument certainly implies
that the arbitrator exceeded the scope of his authority under the agreement, but in Michigan Family
Resources we severely curtailed the “scope of authority” concept. In that case, we stated: “An
arbitrator does not exceed his authority every time he makes an interpretive error; he exceeds that
authority only when the collective bargaining agreement does not commit the dispute to arbitration.”
Mich. Family Res., 475 F.3d at 756 (emphasis added). Therefore, even though Allied’s argument
implies that the arbitrator exceeded the scope of his authority, this argument — because it does not
challenge whether the agreement “commit[ted] the dispute to arbitration” — is better characterized
as a challenge to the arbitrator’s interpretation. Allied does not argue that this dispute — i.e., a
grievance challenging a bargaining-unit member’s termination — was not properly before the
arbitrator; Allied could not in good faith assert such an argument because it is clear that the
agreement commits this sort of dispute to arbitration. Section 8.1 prohibits Allied from
“discharg[ing] or otherwise disciplin[ing] an employee without just cause,” and Section 9.4(D)
authorizes the arbitrator to “decid[e] whether or not a violation of [the] expressed terms [of the
agreement] has been committed.” In light of this express, unambiguous contractual language, we
find that the arbitrator was not operating outside the scope of his authority as prescribed in the
agreement, and his decision cannot be overturned on that basis.
We next consider whether the arbitrator was arguably construing and applying the
agreement, or whether he ignored the terms of the agreement and “dispense[d] his own brand of
industrial justice.” See United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597
(1960). We must resist the temptation to overturn an arbitration decision merely because, in our
No. 06-1572 Truck Drivers Local No. 164 v. Allied Waste Systems Page 6
opinion, the arbitrator made “serious, improvident, or silly” legal or factual errors. Mich. Family
Res., 475 F.3d at 753. “[I]n most cases, it will suffice to enforce the award that the arbitrator
appeared to be engaged in interpretation, and if there is doubt we will presume that the arbitrator was
doing just that.” Id. It will only be in the “most egregious” cases where we find that the arbitrator
was not arguably construing or applying the contract; his interpretation must be “so untethered to”
the terms of the agreement that it casts doubt on whether he in fact was engaged in interpretation.
Id.
At arbitration, the parties disputed which work rules were referenced in Section 8.2 of the
collective bargaining agreement. The arbitrator reasoned that the Union’s rules must apply because
Section 8.2 refers to a set of rules divided into two sections and only the Union’s rules were divided
in that manner. The district court objected to the arbitrator’s adoption of the Union’s rules,
concluding that the Union’s rules, which were originally attached to the predecessor collective
bargaining agreement, were superseded under the zipper clause in the current agreement. Even if
we were to agree with the district court and conclude that the arbitrator incorrectly determined that
the Union’s rules were those referenced in Section 8.2,1 we find this to be a classic instance of labor-
contract interpretation. “It is the arbitrator’s construction which was bargained for; and so far as the
arbitrator’s decision concerns construction of the contract, the courts have no business overruling
him because their interpretation of the contract is different from his.” Enter. Wheel & Car Corp.,
363 U.S. at 599. The arbitrator was indisputably construing the contract; he acknowledged that
Section 8.2 discussed a set of rules divided into two sections and reasonably concluded that the
Union’s rules fit that description better than the two sets of rules proffered by Allied. Because it is
clear that the arbitrator was construing the contract — whether correctly or incorrectly — the
arbitrator’s adoption and application of the Union’s rules does not provide a legally sufficient basis
for vacating his award. See Misco, 484 U.S. at 38.
The major issue in this case — indeed, the primary basis upon which the district court
vacated the arbitrator’s award — is whether the arbitrator’s award violated Section 9.4(G) of the
agreement. Section 9.4(G) states that “the degree of discipline . . . imposed for just cause shall be
in the sole discretion of management and shall not be subject to modification by an arbitrator.”
Allied implored the arbitrator to recognized that Section 9.4(G) prohibited him from even
considering — not to mention altering — the level of discipline imposed against Miller. The
arbitrator, however, determined that Section 9.4(G) could not be read so broadly because such an
expansive reading conflicted with other contractual provisions that expressly and unambiguously
prohibited Allied from “discharg[ing] or otherwise disciplin[ing] an employee without just cause.”
The arbitrator reasoned that the just-cause inquiry required him first to evaluate whether the grievant
violated a work rule and then “to consider whether the discipline imposed [was] reasonable under
the circumstances.” He thus concluded that, notwithstanding Allied’s expansive reading of Section
9.4(G), the collective bargaining agreement authorized him to consider the degree of discipline
imposed by Allied.
Following arbitration, Allied thought that the arbitrator had violated Section 9.4(G) in
another way, namely, by modifying the degree of discipline imposed after he expressly found just
cause to discipline Miller (i.e., issue a written warning). The district court agreed, finding that “the
arbitrator . . . violated the express terms of the [c]ollective [b]argaining [a]greement” by “altering
the discipline that was given to Miller.” Allied contends that Section 9.4(G) clearly prohibits the
arbitrator from modifying the degree of discipline whenever he finds that any degree of discipline
1
Although it is not necessary to our resolution of this suit, we do not agree with the district court’s analysis
on this issue. The zipper clause is inapplicable when determining which rules should apply under Section 8.2. The rules
referenced in Section 8.2 — whichever set of rules the arbitrator determines those to be — have been expressly
incorporated into the new agreement and therefore are not superseded as provided in the zipper clause. The arbitrator
recognized that the zipper clause did not impact this analysis, and we agree with his conclusion.
No. 06-1572 Truck Drivers Local No. 164 v. Allied Waste Systems Page 7
(e.g., written warning, suspension, termination) would be supported by just cause. Thus, according
to Allied, the arbitrator violated Section 9.4(G) because once he found just cause to issue a written
warning, he was without authority to modify the degree of discipline selected by Allied (i.e.,
termination).
The Union argues that Allied’s broad interpretation of Section 9.4(G) conflicts with Section
8.2 of the agreement. Section 8.2 prescribes the allowable discipline for an employee’s violation
of the Mandatory Safety and Work Rules — distinguishing between a violation of Section 1 of those
rules, which permits Allied to discharge the employee immediately, and a violation of Section 2 of
those rules, which requires Allied to give the employee at least one warning notice prior to
discharge. The Union contends that Allied’s construction of Section 9.4(G) effectively negates
Section 8.2’s distinction in the level of allowable discipline for different work-rule violations by
stripping the arbitrator of authority to enforce that distinction. For example, an arbitrator who found,
as the arbitrator here did, that the grievant violated a Section 2 rule, rather than a Section 1 rule,
would be prohibited from reducing the grievant’s discipline to a written warning, even though
Section 8.2 of the agreement expressly states that Allied is permitted to impose only a written
warning against a first-time offender of those rules. The Union argues that Section 9.4(G) cannot
be interpreted in a manner that effectively nullifies Section 8.2. In essence, then, the Union believes
that 9.4(G), as properly understood, restricts the arbitrator’s authority to modify the degree of
discipline only where he finds that the particular degree of discipline actually imposed by the
employer was supported by just cause. Under this interpretation, the arbitrator here did not violate
Section 9.4(G) because he found no just cause to support Miller’s termination (i.e., the particular
degree of discipline actually imposed by the employer) and therefore was not limited by Section
9.4(G)’s purported restriction on his authority.
We find that Section 9.4(G) is not clear on its face and that it can reasonably be interpreted
as urged by either Allied or the Union.2 More importantly, the arbitrator, when construing the
limitations on his authority in Section 9.4(G) (although he did so in response to a slightly different
argument), was indisputably construing and applying the contract. “He refer[red] to, quote[d]
from[,] and analyze[d] the pertinent provisions of the agreement, and at no point [did] he say
anything indicating that he was doing anything other than trying to reach a good-faith interpretation
of the contract.” See Mich. Family Res., 475 F.3d at 754. Based on his reasonable interpretation
of the agreement, the arbitrator believed that he had authority to review the severity of Miller’s
discipline, declare Miller’s termination to be without just cause, and reduce Miller’s discipline to
a written warning. Regardless of whether we agree with the arbitrator’s precise interpretation, we
lack authority to overturn his decision because it is clear that he was “arguably construing and
applying” an unclear contractual provision. See Misco, 484 U.S. at 38. We therefore find no basis
upon which to vacate the arbitrator’s award.3
We acknowledge that, by including Section 9.4(G) in the agreement, Allied attempted to
“limit the arbitrator’s authority to fashion a remedy by careful drafting of the collective bargaining
2
Counsel for Allied, in what may have been a “Freudian slip,” acknowledged at oral argument that Section
9.4(G) “maybe is a little bit ambiguous,” and later stated, in complete contradiction, that “there is no ambiguity” because
this provision consists of “plain language.” As counsel for the Union aptly recognized, however, Allied cannot “have
it both ways,” and, given these alternatives, we conclude that there is some ambiguity in Section 9.4(G).
3
Allied also contends that the arbitrator’s decision should be vacated because he improperly reduced Miller’s
discipline based on “general considerations of fairness and equity instead of the precise terms of the agreement.” See
Cement Divs., Nat’l Gypsum Co. v. United Steelworkers, Local 135, 793 F.2d 759, 766 (6th Cir. 1986). This “fairness
and equity” inquiry derives from the four-part Cement Divisions test, which we overruled in Michigan Family Resources,
475 F.3d at 753, and is no longer germane to the analysis the court must undertake in determining whether to enforce
or vacate an arbitrator’s award. Thus this argument —grounded as it is in terms of fairness and equity — can no longer
carry the day.
No. 06-1572 Truck Drivers Local No. 164 v. Allied Waste Systems Page 8
agreement.” See Kar Nut Prods. Co. v. Int’l Bhd. of Teamsters, No. 92-2084, 1993 WL 304467, at
*3 (6th Cir. August 10, 1993). Cf. Eberhard Foods, Inc. v. Handy, 868 F.2d 890, 892 (6th Cir.
1989) (“There is nothing . . . in the [collective bargaining agreement] or work rules which expressly
limits or removes from the arbitrator the authority to review the remedy in this case.”). Despite this
attempt to restrict the arbitrator’s authority, Allied did not draft Section 9.4(G) with sufficient
precision, leaving it unclear and in tension with other provisions in the agreement. Therefore, while
it is true that parties to a collective bargaining agreement can limit an arbitrator’s authority, they will
succeed in doing so only to the extent that they produce a clearly crafted, internally consistent
agreement. Allied has failed to do so here.
III.
The Union requests that we award Miller back pay from the date of the arbitrator’s award
until the date of Miller’s eventual reinstatement, which, at least as of the date of oral argument in
this matter, had not yet to occurred. See Lynchburg Foundry Co. v. United Steelworkers of Am.,
Local 2556, 404 F.2d 259, 262 (4th Cir. 1968) (stating that “the employee is entitled to reinstatement
and compensation for the period following the [arbitrator’s award]”). Allied argues that the first
sentence in Section 9.4(G) of the collective bargaining agreement — a portion of that section we
have yet to address — prevents our making any such award. That sentence provides:
Should it be determined that an employee, other than probationary employee was
disciplined or discharged without just cause, he shall be restored to his former status;
provided, however, that the arbitrator shall not award back pay for a period
exceeding ninety (90) days and provided further that the Company shall have the
right to credit against any back pay awarded any earnings, compensation, or
enumeration [sic] received by the employee from any source whatsoever including
unemployment compensation and worker’s [sic] compensation payments during the
period involved.
Miller was discharged on April 5, 2005, and the arbitrator ordered him reinstated on August 31,
2005. The arbitrator’s award stated that “[Miller] is to be reinstated to his former position with back
pay and benefits subject to the limitations found in Article 9.4(G).” Pursuant to the limitations on
back pay in Article 9.4(G), Miller would have received back pay for only 90 of the more than 145
days between his discharge and the arbitrator’s decision. Allied further argues, citing Yamaha Int’l
Corp. v. United Furniture Workers of America, AFL-CIO, 892 F.2d 80 (6th Cir. 1989)
(unpublished),4 that, even if the CBA permitted the award of additional back pay, we lack the
authority to award such relief.
In Yamaha I, the arbitrator awarded the union grievant reinstatement without back pay and
Yamaha filed an action in the district court to vacate the award. The district court ordered the award
enforced, and additionally ordered back pay from the date of the award to the date of the district
court’s entry of judgment. The Union’s brief on appeal included a request to enlarge the district
court’s judgment to include back pay for a period subsequent to the district court’s order; we
affirmed the district court but did not address the Union’s request. See Yamaha Int’l Corp. v. United
Furniture Workers of America, 842 F.2d 334, *1(6th Cir. 1988)(unpublished). After the mandate
had issued on our opinion, the Union filed a motion in the district court to include back pay for the
period after the district court’s order; the district court denied the motion — which it denominated
a Rule 60 (b)(6) motion — because it believed that the issuance of the mandate precluded the court
from addressing its merits. On appeal, we concluded that the district court had correctly viewed the
4
This case came before us on several occasions. For ease of reference, we refer to Yamaha Int’l Corp. v.
United Furniture Workers of America, 842 F.2d 334 (6th Cir. 1988) as Yamaha I, and Yamaha Int’l Corp. v. United
Furniture Workers of America, AFL-CIO, 892 F.2d 80 (6th Cir. 1989) as Yamaha II.
No. 06-1572 Truck Drivers Local No. 164 v. Allied Waste Systems Page 9
motion as one brought under Rule 60(b)(6), but that the court was not barred from considering the
motion on its merits, and we remanded for the court to do just that. See id. at *1-2. On remand, the
district court denied the motion, and the Union appealed. We affirmed, noting that Yamaha had
neither posted a supersedeous bond nor sought to stay the district court’s order when it appealed,
and that the Union “at all times had the right or opportunity to require Yamaha to reinstate [the
grievant], but chose, for whatever reason, not to exercise that course of action.” Yamaha II, 892
F.2d at *2. Further, we observed, the Union had not attempted to obtain a rehearing in the court of
appeals. Because a Rule 60(b)(6) motion “should only be granted in exceptional or extraordinary
circumstances which are not addressed by the other clauses of Rule 60(b),” id., and the Union had
failed to protect its rights through any of the procedures available to it, we found that the Union had
not demonstrated any such circumstances, and the district court had not abused its discretion in
denying the motion. Taken together, Yamaha I and Yamaha II — at least implicitly — indicate that
back pay from the date of an arbitrator’s award until the date of reinstatement may be an appropriate
remedy.
More recently, this issue was addressed in Mansfield Plumbing Prod. v. Teamsters,
Chauffeurs & Helpers Local Union No. 40, 2005 WL 3544085 (N.D. Ohio, 2005), a case whose
facts — although considerably more complicated than those before us here — similarly raise the
issue of whether additional back pay is a permissible judicial remedy. In that case, Mansfield had
terminated the employee, and, although the arbitrator ordered reinstatement, Mansfield instead
terminated the employee again, on grounds different from those on which it had terminated him the
first time. This second termination also went to arbitration, and resulted in a different arbitrator’s
reversing the termination and ordering reinstatement in accordance with the first reinstatement order.
The second arbitrator did not award any back pay beyond that ordered by the first arbitrator. During
the pendency of the second arbitration, Mansfield filed suit to vacate the first arbitration award, and
the Union counterclaimed, seeking, among other things, additional back pay. Prior to the district
court’s ruling in that case, Mansfield filed suit to vacate the second award, and again, the Union
counterclaimed. The district court ordered the first award enforced but did not mention additional
back pay. Mansfield reinstated the grievant, dismissed its action to vacate the second arbitrator’s
award, paid the grievant 120 days’ back pay (the CBA limited back pay awardable by an arbitrator
to 120 days), but did not pay any additional back pay. The Union then sought summary judgment
on its counterclaim in the second action for additional back pay.
The district court separated into several discrete periods the time for which the Union sought
additional back pay and held — for reasons not material to the instant case — that it was without
jurisdiction to award additional back pay for all but one of them. The court held, however, that
additional back pay was appropriate for the four-month period from the second arbitration award
ordering reinstatement until the actual reinstatement of the grievant. The district court summed up
the situation before it and sensibly held that
[e]ven though Mansfield was challenging both arbitration orders in this court, it was
legally obligated to reinstate and pay Martin. It did not do so. To hold otherwise
would [ ] provide a great incentive for employers to challenge every arbitration
decision virtually cost-free, since even if they lost, they would be saved from paying
wages for the pendency of the appeal.
Id. at *21. In reaching its conclusion, the district court also held that
[a]n award of back pay for the four months between the second arbitration decision
and reinstatement does not go beyond the terms of the CBA, as Mansfield contends.
To the contrary, back pay is consistent with and directly results from the CBA. . . .
If an award is to be final and binding, the employer is required to reinstate the
No. 06-1572 Truck Drivers Local No. 164 v. Allied Waste Systems Page 10
employee and pay him. If they fail to reinstate him, they remain obligated to pay
him, unless the arbitration award is overturned by a court of law.
Id.
We think that Mansfield is correctly decided,5 and for the reasons stated by the district court
in that case, we conclude, first, that the language on which Allied relies in Article 9.4(G) of the CBA
here limits only the arbitrator’s ability to award back pay, and does not limit the ability of the court
to do so. We further conclude that additional back pay from the time of an arbitrator’s reinstatement
award until the time that a grievant is reinstated is an appropriate judicial remedy. Finally, however,
because we do not have before us the necessary facts to determine the amount of the back pay due
to Miller, we must remand this matter to the district court for further proceedings consistent with
this opinion.
IV.
For the foregoing reasons, we REVERSE the order of the district court granting summary
judgment to Allied and REMAND to the district court with instructions to reinstate the arbitrator’s
award, and for the limited purpose of calculating the appropriate award of back pay.
5
We note with some concern the district court’s apparent misunderstanding of the result we reached in Yamaha
II, but we note as well that this error did not affect the district court’s overall analysis.