United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l v. Wise Alloys, LLC

• Decision Date: 08 December 2015
• Docket Number: No. 14–15744.,14–15744.
• Citation: 807 F.3d 1258
• Parties: UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION AFL–CIO –CLC, USW Local 200, Plaintiffs–Appellees Cross–Appellants, v. WISE ALLOYS, LLC, Defendant–Appellant Cross–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

807 F.3d 1258

UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION AFL–CIO –CLC, USW Local 200, Plaintiffs–Appellees Cross–Appellants,

v.WISE ALLOYS, LLC, Defendant–Appellant Cross–Appellee.

No. 14–15744.

United States Court of Appeals, Eleventh Circuit.

Dec. 8, 2015.

Glen M. Connor, Richard Paul Rouco, Quinn Connor Weaver Davies & Rouco, LLP, Birmingham, AL, for Plaintiffs–Appellees Cross–Appellants.

William George Miossi, Matthew W. Lewis, Winston & Strawn, LLP, Washington, DC, Stephen Edward Brown, Bressler Amery & Ross PC, Birmingham, AL, for Defendant–Appellant Cross–Appellee.

Appeals from the United States District Court for the Northern District of Alabama.

Before ROSENBAUM and JULIE CARNES, Circuit Judges, and GOLDBERG,^* Judge.

ROSENBAUM, Circuit Judge:

"There's something wrong here, there can be no denyin'."¹ But it's not what Defendant–Appellant Wise Alloys, LLC (the "Company"), suggests in its appeal of two district-court orders. In the first of those orders, the district court compelled arbitration of a dispute between the Company and Plaintiffs–Appellees United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO–CLC, and its Local (collectively, the "Union") in June 2012. In the second, the district court enforced the resulting arbitration award in favor of the Union in December 2014. The problem is, although the June 2012 order compelling arbitration was a final decision when it was issued, the Company did not appeal it until after the district court entered the December 2014 order. In the words of Carole King, "it's too late, ... now, it's too late,"² and we lack jurisdiction to consider the appeal of the first order.

As for the December 2014 order enforcing the arbitration award, we affirm. On the Union's cross-appeal, we likewise affirm the district court's order denying the Union's motion for attorney's fees in defending the arbitration award.

I. BACKGROUND INFORMATION

A. The Collective–Bargaining Agreement

This appeal and cross-appeal represent the latest chapter³ in the contentious aftermath of a November 2007 collective-bargaining agreement between the Union and the Company. The Company operates an aluminum rolling mill in Muscle Shoals, Alabama, and the Union represents many of the Company's production workers.

In 2007, the Company and the Union entered into a collective-bargaining agreement ("CBA") for the period of November 1, 2007, to November 1, 2012. The CBA sets forth a schedule of increasing health-care premiums over the five-year duration of the agreement but also contains a cost-of-living-adjustment provision that is designed to offset the amount workers pay in health-care premiums. More specifically, the weekly health-care premium rates that the adjustment sought to mitigate were set at $20 for the first year, $25 for the second, $30 for the third, $35 for the fourth, and $45 for the fifth.

As relevant, the CBA provides,

Section 2. Cost of Living Adjustment: Effective on each adjustment date, a cost-of-living adjustment will be made to the current cost of living allowance. The cost of living allowance will be equal to 1¢ per hour for each full 0.3 of a point change in the Consumer Price Index calculation....

Section 3. Effective on each adjustment date, the cost-of-living allowance as determined above shall be applied exclusively to help offset health insurance costs for hourly-rated employees. The cost-of-living adjustments under the paragraph shall not be applied to employees' hourly wage rates.

See USW v. Wise Alloys, LLC, No. CV–10–S–2830–NW, 2012 WL 2357738, at *2–3 (N.D.Ala. June 15, 2012). The cost-of-living adjustment is calculated quarterly, and the employee's weekly health-care premium is reduced by the appropriate cost-of-living allowance figure.

The CBA also includes a comprehensive, four-step grievance procedure for resolving "[a]ll grievances concerning the interpretation or application of this Agreement." Under the grievance procedure, all grievances must be "presented within ten (10) working days of the occurrence out of which the grievance arose." The CBA further requires that "[g]rievances which are not presented within the specified time limit cannot be presented or considered at a later date."

Step one of the process involves presenting the grievance orally to the employee's immediate supervisor and receiving an answer within two days. Step two requires the Union to put the grievance in writing and present it to the shop superintendent for discussion. Under step three, the Union may elect to elevate the grievance to the Company's Labor Relations Department if it remains unresolved. If the grievance is not resolved at step three, the Union may refer it to the Company's Vice President of Human Resources and involve a USW International Staff Representative at step four. Step four requires that the parties meet to discuss the grievance and that the Vice President issue a written response within thirty days of the meeting. The CBA provides that the time limits of the grievance process may be extended by mutual agreement and that, by mutual agreement, "specific grievances may be initially presented at Step 3 or Step 4."

If the dispute is not resolved through this four-step process, the grievance procedure gives the Union forty-five days from the receipt of the Vice President's answer to move the grievance to binding arbitration by notifying the Company in writing of its wish to do so. Although the arbitration clause declares that "[t]he arbitrator shall have no authority to change, amend, add to, or delete from the provisions of this Agreement," it provides no other constraint on the arbitrator's authority.

The "General Purposes of this Agreement" section of the CBA also contains the following "zipper clause":

It is the intent of the parties that this Agreement, including the side letter agreements that are dated as of the date of this Agreement and attached to this Agreement, constitute the entire Collective Bargaining Agreement of the parties. Further, the parties agree that the terms of this Agreement should be enforced as written in all cases, regardless of any conflicting practices.

B. The Current Grievance

The dispute here centers on conflicting interpretations of the cost-of-living-adjustment provision. The Union maintains that the cost-of-living adjustments accumulate over the life of the agreement; i.e., that each new adjustment is added to the current allowance. In contrast, the Company contends that the cost-of-living allowance resets to zero annually when each new CBA-mandated increase in health-care premiums takes effect.

This case arrived at our doorstep through the following course of events: On December 19, 2008, David Duford, the Company's Labor Relations Manager, sent a letter to Ernest Kilpatrick, the Local's President, notifying him that the Company mistakenly neglected to raise the health premium from $20 to $25 in November 2008. Although that letter also specified that the Company would "make the necessary adjustments to recover any retroactive health care premiums," it made no reference to cost-of-living adjustments. Paychecks issued the week of January 15, 2009, reflected the $25 deduction and the retroactive deduction but no corresponding cost-of-living premium reduction.

On February 23, 2009, Duford again wrote Kilpatrick, advising him that, based on the relevant Consumer Price Index information, no quarterly cost-of-living adjustment was warranted and that "the weekly health care premium will remain $25.00 for all applicable employees." In response, Kilpatrick wrote back on March 2, 2009, agreeing that no quarterly adjustment was needed, but he asserted that, based on the $0.73–per–hour allowance existing at the end of 2008, the $25 premium should be reduced accordingly. In a March 5, 2009 letter, Duford disagreed. Duford also recalled that the Union had been informed in his December 19, 2008, letter about the premium increase to $25, but the Union had made "[n]o timely objections or grievances."

No further action apparently occurred for the next seven months until the Union filed a formal grievance on October 5, 2009. On October 20, 2009, Duford denied the grievance in a letter to now Local President Ken Hunt. In rejecting the grievance, Duford again pointed to the December 19 letter and the January 15 paychecks and added,

Neither at the time of these events, nor within the time period specified in our Labor Agreement in which a grieving party must bring a claim did the Union nor did any of its members file any timely objections or grievances regarding any of these occurrences, which were widely known and implemented.

Furthermore, there are no provisions in the Labor Agreement whatsoever that provide that COLA be carried over from year to year. COLA offsets, if any, applies [sic ] only to the contractually established weekly premium in the year in which the offset occurs. The weekly premium is reset annually as provided by the clear terms of our Labor Agreement.

The grievance is rejected as untimely and therefore all claims and demands are waived in its [sic ] entirety by the Union.

On October 26, 2009, the Union elevated its grievance to step four by forwarding it to Sandra Scarborough, the Company's Vice President for Human Resources. No meeting was scheduled and no Company representative, including Scarborough, ever responded to the step-four escalation. On February 12, 2010, the Union notified Scarborough in writing that it desired to submit the grievance to arbitration.

The Union moved forward unilaterally with the arbitration process, sending letters to the Company on July 9 and July 26, 2010, concerning the arbitration panel. On July 28, 2010, Duford responded to these efforts by reiterating the Company's position that the grievance was untimely. Duford elaborated, "There is no ambiguity that untimely grievances are...