UNITED STEEL WORKERS OF AMERICA, AFL-CIO, CLC; Unitеd Steel Workers of America, Local No. 9423, Plaintiffs-Appellees, v. CENTURY ALUMINUM OF KENTUCKY, Defendant-Appellant.
No. 04-5991
United States Court of Appeals, Sixth Circuit
Dec. 8, 2005.
157 Fed. Appx. 869
Ivan H. Rich, Jr., Stites & Harbison, Louisville, KY, for Defendant-Appellant.
Before CLAY and GIBBONS, Circuit Judges; STEEH, District Judge.*
Plaintiffs United Steelworkers of America, AFL-CIO, CLC, and United Steelworkers of America, Local 9423 (collectively, USWA) filed suit to compel arbitration of a union member‘s alleged wrongful discharge from Defendant Century Aluminum of Kentucky. Century Aluminum argued that the discharge decision was not subject to arbitration under the terms оf the employee‘s “Last Chance Agreement.” On cross-motions for judgment on the pleadings, the district court granted USWA‘s motion, denied Century Aluminum‘s motion, and ordered the matter referred to arbitration. Because we find that the collective bargaining agreemеnt created a strong presumption of arbitrability and that the “Last Chance Agreement” did not clearly exclude the question of the employee‘s factual guilt from arbitration, we AFFIRM the district court‘s order.
I.
BACKGROUND
USWA and Century Aluminum are parties to a collective bargaining agreement (CBA) covering production and maintenance employees at Century Aluminum‘s
1. All Parties to this Last Chance Agreement agree that violations of the Century Aluminum Rules of Conduct by Bill Brown are grounds for the termination of his employment and seniority with Century Aluminum.
* * * * *
3. All Parties to this Last Chance Agreement agrеe that Bill Brown‘s continued employment with Century Aluminum is subject to his compliance with the following conditions and each of them:
* * * * *
(b) Starting on January 1, 2003, and continuing thereafter for a two calendar years period, Bill Brown‘s employment and seniority may be terminated at the sole discretion of Century Aluminum‘s management for any single violation of the Attendance Policy that warrants written discipline; or any single violation of the Rules of Conduct that warrants written discipline regardless of the nature of the violation. In other words, so that there is no misunderstanding between the Parties, any single written discipline accumulated by Bill Brown under the Attendance Policy or the Rules of Conduct during the two calendar year period may result in the termination of his employment and seniority at the sole discretiоn of Century Aluminum‘s management[.]
* * * * *
4. All Parties to this Last Chance Agreement agree that if Bill Brown‘s employment and seniority are terminated by Century Aluminum pursuant to above Paragraph 3, neither the termination nor any issue of the termination will be subject to the grievance and аrbitration provisions of the collective bargaining agreement then in effect between United Steelworkers of America Local Union 9423 and Century Aluminum.
* * * * *
7. Bill Brown agrees as follows: I understand under this Last Chance Agreement that my employment status is still at risk, that I am expected to follow fully and completely the Attendance Policy and the Rules of Conduct of Century Aluminum which I have read and understand, that I may be subject to the immediate termination of my employment and seniority at the sole discretion of Century Aluminum‘s management fоr any violation of the Attendance Policy or the Rules of Conduct that would warrant a written warning during the two calendar year period discussed in this Last Chance Agreement regardless of the type and severity of the discipline which would have otherwise beеn imposed for a violation/incident, and that such termination of my employment and seniority will not be subject to grievance or arbitration . . . . .
On July 24, 2003, Brown was issued a written warning for violating Century Aluminum‘s Rules of Conduct by allegedly telling a supervisor on July 9, 2003 that “there are black pеople and there are niggers and that Cathy is a nigger,” contributing with “other statements and actions” in creating a hostile work environment. Brown was fired after receiving the written warning. On July 30, 2003, Century Aluminum refused to process a July 28, 2003 grievance challenging Brown‘s discharge, asserting that Brown‘s termination was not grievable pursuant to the terms of
II.
DISCUSSION
A. Standard of Review
This Court reviews a district court‘s order granting a
B. Presumption of Arbitrability under CBA
Century Aluminum initially contends that the CBA‘s arbitration clause is narrowly drawn, and therefore USWA is not entitled to a presumption of arbitrability as to Brown‘s grievance, citing Salary Policy Employee Panel v. TVA, 149 F.3d 485, 490 (6th Cir. 1998) (”Salary Policy I“) and Salary Policy Employee Panel v. TVA, 868 F.2d 872, 877 (6th Cir. 1989) (”Salary Policy II“).
The Supreme Court has made it repeatedly clear that:
where the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that “[a]n order to arbitrate the partiсular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.”
AT & T Technologies v. Communications Workers of America, 475 U.S. 643, 650 (1986) (quoting Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 (1960)). The presumption of arbitrability is particularly applicable to broad arbitration clauses. AT & T Technologies, 475 U.S. at 650 (finding presumption of arbitrability particularly applicable to arbitration clause covering “any differences arising with respect to the interpretation of this сontract or the performance of any obligation hereunder“); United Steelworkers of America v. Mead Corp., 21 F.3d 128, 132 (6th Cir. 1994) (finding presumption of arbitrability particularly applicable to arbitration clause covering grievances “involving the interpretation of, or compliance with, this Agreement“); International Union, UAW v. United Screw & Bolt Co., 941 F.2d 466, 472-473 (6th Cir. 1991) (finding presumption of arbitrability particularly applicable to arbitration clause covering “matter[s] involving the interpretation or application of, or compliance with any of the terms of this Agreement“).
Brown‘s discharge grievance does not implicate an ERISA benefit denial, the only dispute expressly excluded from the grievance process and arbitration by the CBA. Century Aluminum‘s reliance on the Salary Policy Employee Panel cases involving clauses expressly excluding certain disputes from arbitration is thus misplaced. See Salary Policy I, 149 F.3d at 489, 491-93 (finding presumption of arbitrability inapplicable to clause reserving to employer “questions concerning the appropriateness of a proposed bargaining unit” with respect to grievance challenging proper bargaining representative for new job classification); Salary Policy II, 868 F.2d at 872, 877 (finding presumption of arbitrability inapplicаble to clauses limiting arbitration to “only a grievance which involves a disciplinary action” or “only a grievance which involves ‘a claim of misapplication or misinterpretation of an express provision in a supplementary agreement’ ” with respect to grievance challenging legal effect of OPM reduction-in-force regulations upon employer). The CBA language of Article 12, § 3, defining an arbitrable “grievance” to include “disputes concerning the interpretation or application of or compliance with the provisions of” the CBA, constitutes a broad arbitration clause analogous to the arbitration clauses previously held to warrant a strong presumption of arbitrability. AT & T Technologies, 475 U.S. at 650; Mead Corp., 21 F.3d at 132; United Screw & Bolt Co., 941 F.2d at 468, 472-73. Indeed, execution of the LCA evinces the рarties’ shared belief that Brown was entitled to grieve and arbitrate a discharge dispute under the CBA. For these reasons, a strong presumption of arbitrability arises from the language of the parties’ CBA with respect to USWA‘s grievance challenging Brown‘s terminatiоn.
C. Scope of Exclusion of Arbitrability under LCA
Century Aluminum contends in the alternative that the language of the LCA overcomes any presumption of arbitrability arising under the CBA by expressly stating that “neither the termination nor any issue of the termination will be subject to the grievance and arbitration provisions of thе collective bargaining agreement[.]” LCA, para. 4. Century Aluminum argues that the phrase “any issue of the termination” unambiguously includes the issue of whether Brown in fact committed an act in violation of the Rules of Conduct, as he is accused. We disagree.
An exprеss provision excluding an issue from arbitration which allows a court to say “with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute” rebuts the presumption of arbitrability. AT & T Technologies, 475 U.S. at 650 (quoting Warrior & Gulf, 363 U.S. at 582-83). Conversely, if an LCA provision attempting to ex-
A panel of this Circuit applied the reasoning in Lukens Steel in concluding that an LCA providing that “any violation of the Company policy or rules may result in discharge and the Employee and/or union may not challenge the discharge in the grievance or arbitration procedure” was susceptible to a reasonаble interpretation that only the final question of punishment was expressly excluded from arbitration. Pace International Union v. Vacumet Paper Metalizing Corp., 91 Fed.Appx. 380, 383 (6th Cir. 2004) (unpublished) (citing Lukens Steel Co., 969 F.2d at 1476-78). “Because the LCA is susceptible to more than one reasonable interpretation, we must resolve the ambiguity in favor of arbitrability.” Id. (citing AT & T Technologies, 475 U.S. at 650).
The language used in Brown‘s LCA, stаting that “neither the termination nor any issue of the termination will be subject to the grievance and arbitration provisions of the collective bargaining agreement,” is sufficiently ambiguous to accept as reasonable USWA‘s interpretation that only the penalty of termination, and issues related to the penalty of termination, are expressly excluded from arbitration under the CBA. Nothing prevented Century Aluminum from clearly describing that “any issue of termination” included the issue of factual guilt. See Lukens Steel, 969 F.2d at 1476. Brown‘s agreement thаt he “may be subject to the immediate termination of my employment and seniority at the sole discretion of Century Aluminum‘s management for any violation of the Attendance Policy or the Rules of Conduct that would warrant a written warning” only adds to the ambiguity by suggesting that his terminаtion at Century Aluminum‘s sole discretion arises only if Brown‘s conduct actually warranted a written warning, an issue not expressly included within the phrase “any issue of the termination.” Resolving doubts in favor of arbitration as provided for under the CBA, we cannot say with positive assurance that the only reasonable interpretation of the LCA expressly excludes the issue of Brown‘s factual guilt from arbitration. AT & T Technologies, 475 U.S. at 650. On de novo review, Century Aluminum cannot avoid arbitration of USWA‘s grievance filed on behalf of Brown which asserts his innocence of the claimed rule violation. Ziegler, 249 F.3d at 511-12.
III.
CONCLUSION
We AFFIRM the district court‘s order granting USWA‘s motion for judgment on