United States District Court, E.D. Louisiana
UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION
NORANDA ALUMINA, LLC, SECTION:
ORDER AND REASONS
NANNETTE JOLIVETTE BROWN, District Judge.
In this litigation, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO ("USW") has brought suit to seek an order to compel arbitration against Defendant Noranda Alumina, LLC ("Noranda"), pursuant to Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. Presently pending before the Court are USW's "Motion for Summary Judgment" and Noranda's "Motion for Summary Judgment and Motion for Fees." Having considered the complaint, the parties' briefs, the record, and the applicable law, the Court will deny USW's motion, grant-in-part Noranda's motion, and deny-in-part Noranda's motion.
A. Factual Background
In its complaint, Plaintiff USW contends that it is a "part[y] to a collective bargaining agreement" ("CBA") with Noranda that was effective from October 1, 2005 to September 30, 2010. According to USW, Kent Haydel, a "member of the bargaining unit represented by USW, " worked for Noranda until May 1, 2006, "at which time he suffered a work-place injury and went out on Workers' Compensation, " which he received until May 4, 2010. USW contends that Haydel subsequently "filed for and received a disability retirement pension from Noranda, " but was only credited with "one year of pension service credit" during the time in which he was off work and on Worker's Compensation. USW maintains that Haydel should receive credit for all four years he was "out on Worker's Compensation, " pursuant to Section 9(d)(1)(c) of the CBA.
USW claims that it filed a grievance on Haydel's behalf challenging "Noranda's failure to grant him pension credit for three of the four years he was out on Worker's Compensation, " whereupon the parties were unable to resolve the dispute and USW "appealed the matter to arbitration."
B. Procedural Background
USW filed a complaint in this matter on July 12, 2013, seeking "judgment requiring Noranda to arbitrate" its grievance, as well as costs and attorney's fees. On August 12, 2013, Noranda filed a "Motion to Dismiss." This Court denied the motion on March 18, 2013, concluding that Noranda relied in its motion upon documents "not specifically cited or relied upon" by USW in its complaint, or bearing an excessively "attenuated" relationship with the complaint. Referring only to the pleadings, "as must be done in a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), " the Court held that "USW has sufficiently alleged a cause of action."
Noranda filed an answer on April 22, 20124,  contending that although Article 10 of the CBA "sets forth a procedure for the adjustment of grievances, " which "allows either party to appeal a grievance... if the grievance is covered by Article 10, " the present dispute is not governed by Article 10 of the CBA. Noranda further asserts that Article 9 of the CBA has no "impact... on the calculation of an employee's Benefit Service' under the Pension Plan" ("Plan"), and denies that it "improperly calculated [Haydel's] Benefit Service.'" Finally, Noranda asserts several affirmative defenses.
Specifically, Noranda contends that: (1) USW's complaint "fails to state a claim or cause of action upon which relief may be granted;" (2) USW's "claim is barred by the applicable statute of limitations;" (3) USW's "claim is barred to the extent Plaintiff and/or [Haydel] failed to exhaust his administrative remedies under the Pension Plan;" (4) USW's "claims are barred by the doctrine of waiver, estoppel, laches, and/or election of remedies;" (5) "the terms of the Pension Plan granting each Plan fiduciary absolute discretionary authority' which is final, conclusive and binding' renders Plaintiff's dispute involving pension benefits of the Pension Plan non-arbitrable.
USW filed the instant "Motion for Summary Judgment" on May 7, 2014. On May 19, 2014, Noranda filed a "Motion for Summary Judgment and Motion for Fees." Both motions were set for submission on June 11, 2014. Noranda filed a response to USW's motion on June 3, 2014. That response was marked deficient for failure to comply with Local Rule 56.2. USW filed a response to Noranda's motion on June 5, 2014. On June 6, 2014, with leave of Court, USW filed a reply to Noranda's deficient June 3, 2014 opposition. On June 9, 2014, Noranda filed an opposition to USW's motion that complies with Local Rule 56.2, thereby timely curing the deficiency identified by the Clerk of Court. Finally, on June 12, 2014, with leave of Court, Noranda filed a response to USW's opposition to its motion for summary judgment.
On August 28, 2014, USW and Noranda filed a Proposed Pre-Trial order in which they represented that "there are no material facts... genuinely in dispute, " meaning that this case "presents a pure question of law." The Court, in turn, canceled the Pre-Trial Conference and trial date in this matter.
II. Parties' Arguments
A. USW's "Motion for Summary Judgment" 
1. Presumption of Arbitrability
In support of its "Motion for Summary Judgment, " USW first asserts that "the grievance is substantively arbitrable because there is no most forceful' evidence showing [that] the arbitration provision does not apply." On this point, USW contends that "it is well-settled that arbitration is the preferred method of resolving disputes arising during the term of a [CBA], " as evidenced by several United States Supreme Court cases affirming a "clear statutory preference favoring the arbitration of labor disputes." According to USW, "[i]t is the Court's role to decide the threshold issue of whether the parties have agreed to submit a particular dispute to arbitration, " not to decide "the potential merits of the underlying claims." Moreover, USW argues, the existence of a contract with an arbitration clause creates a "presumption of arbitrability, " such that arbitration should not be denied unless "it may be said with positive assurance" that the arbitration clause does not cover the dispute. In other words, USW argues, the presumption in favor of arbitrability may only be rebutted by a showing of (1) "the existence of an express provision excluding the grievance from arbitration, " or (2) "the most forceful evidence' of a purpose to exclude the claim from arbitration."
a. Applicability of Presumption
USW asserts that "the presumption of arbitrability applies here because the CBA contains a broad arbitration provision" in Article 10(A), which defines "arbitrable grievances" as those "aris[ing] between the Company and the Union as to the meaning or application of the provisions of this Agreement, or as to any question relating to the wages, hours of work, or other conditions of employment of any employee." Moreover, USW contends, the parties "expressly agreed that the role of the arbitrator would be to interpret, apply, or determine compliance with the provisions of the Agreement, Memoranda, Supplements, etc., insofar as shall be necessary to the determination of grievances appealed to the arbitrator, ' [and that] [t]he arbitrator's decision shall be final and binding on the parties.'"
In this case, USW contends, "the grievance at issue alleges [that] the Company violated Article 9(D)(1)(c) of the CBA by ignoring a portion of the time Haydel was absent from work while receiving Workers' Compensation when calculating his pension benefits, " a dispute that "plainly concerns the meaning or application of the Agreement, '" and therefore falls within the scope of Article 10(A) of the CBA. Further, USW asserts, "it is well-established that pension benefits, as a form of deferred compensation, are both wages' and conditions of employment, '" making the instant issue about pension benefits a question "relating to the wages, hours of work, or other conditions of employment" within the meaning of the CBA's arbitration provision.
b. Exclusion from Arbitration
USW asserts that "no express provision excludes [this grievance] from arbitration, " such as would be required to "prevent this grievance from being arbitrable." Additionally, USW argues, since no express language exempts the present dispute from the CBA's arbitration clause, Noranda must-but cannot-"bring forth most forceful' evidence that the parties intended [that] this dispute would not be subject to arbitration."
Specifically, USW argues that Noranda "cannot rely on anything in Article 11 of the Plan to show that the Union and the Company did not intend for [this dispute] to be resolved by arbitration under the Plan, " since "Section 11.17 of the Plan plainly states that [t]he provisions of Article 11 shall not apply to the extent any such provision conflicts with an agreement with a collective bargaining unit, " meaning that any provisions of the Plan that conflict with the CBA must yield to the provisions of the CBA, including the arbitration provision in Article 10(A). Therefore, USW asserts, "the portions of Article 11 of the Plan purportedly giving Plan fiduciaries absolute authority to interpret Plan provisions" must give way to the CBA's arbitration procedure.
USW further argues that the present case is distinguishable from cases where "benefit plan provisions vesting discretion in plan administrators" were held to indicate "an agreement to exclude those plan provisions from contractual grievance and arbitration provisions, " because the language in Section 11.17 "explicitly trumps the Plan provisions on which the Company relies, " preventing Noranda from presenting "the most forceful evidence" that the parties intended to exclude the present grievance from the arbitration provisions.
USW next asserts that "this action is timely because Noranda first unequivocally refused to arbitrate on January 16, 2013." USW argues that "[a] cause of action to compel arbitration accrues when one party clearly refuses to arbitrate the dispute, " and that, once accrued, must be sued upon within six months. According to USW, refusal "must be unequivocal, whether by words used or by unambiguous conduct." In this case, USW argues, Noranda "first indicated... that it would not arbitrate the dispute in a meeting between [USW] and [Noranda] on January 16, 2013, " at which Noranda "expressed its position that issues concerning an employee's pension benefit service credit are not subject to the grievance-arbitration process established by the CBA." Therefore, USW argues, its cause of action accrued on January 16, 2013, making the filing of the instant lawsuit on July 12, 2013 timely.
USW maintains that Noranda's "April 12, 2012 letter to Local Union President Delaneuville" did not amount to an "unequivocal refusal to arbitrate, " because that letter only stated that Haydel's "pension benefit service was calculated as provided by Article 2 of the Plan, " and cited "Labor Agreement Article 19, " an article that purportedly "refers to Defined Benefit pension, Defined Contribution, 401(k) retirement savings plan, VEBA and Supplement Unemployment benefits, " wherein Deleneuville "will find the reference to the Plan documents." According to USW, the letter "nowhere mentioned how Haydel or the Union were to address disputes over Haydel's pension service credit, never stated that disputes relating to pension service credit were not subject to the CBA's grievance and arbitration procedures, " and finally "did not express Noranda's unwillingness to address such a grievance under the CBA's arbitration procedures." Therefore, USW contends, the April 12, 2012 letter does not "even imply that [Noranda] would refuse to arbitrate the dispute."
Indeed, USW argues, Noranda's "position, " as stated in the letter, "was entirely consistent with a position that the CBA's grievance-arbitration provisions would govern the resolution of the dispute over Haydel's pension service credit, " and "would be quite reasonable, since Section 11.17 of the Plan states that the CBA provisions prevail over inconsistent provisions in Article 11. Moreover, USW contends, the letter's "reference to Article 19, the provision incorporating the Plan into the CBA, also suggests that the Company viewed the dispute as one governed by the CBA and its grievance and arbitration procedures."
Finally, USW asserts that Noranda's "other correspondence" with it "also undermines its current position that it unequivocally refused to arbitrate on April 4, 2012." According to USW, Noranda's counsel sent a letter on February 1, 2013 in which it "twice identified the January 16, 2013 meeting as when [Noranda] had stated its position that disputes under the Plan are not substantively arbitrable." Indeed, USW maintains, Noranda's counsel mentioned the April 12, 2012 letter but "never claimed that" the author of that letter "had notified [USW] that Noranda would not arbitrate the dispute." Further, USW argues, a letter subsequently sent by a Noranda employee referenced "meetings" and the February 1, 2013 letter, but omitted any mention of the April 4, 2012 letter, thereby "implictly admit[ting]" that the April 4, 2012 letter was "not a refusal to arbitrate."
3. Attorney's Fees
USW asserts that it is entitled to attorney's fees, because courts may award attorney's fees where "the Company acted frivolously or in bad faith, " in cases arising under 29 U.S.C. § 185. USW contends that it is entitled to attorney's fees here because "on the face of Article 10 of the CBA, questions relating to the meaning or application of the CBA or to wages and conditions of employment, " including pension benefits, which are "clearly included, " are expressly subject to arbitration. Noranda's "position that Article 11 of the Plan removes disputes involving the Plan from the [CBA's] dispute resolution procedure" is frivolous, USW argues, "because Section 11.17 of the Plan clearly contradicts" it. USW argues that Noranda's timeliness argument is also frivolous, because the April 4, 2012 letter "plainly" did not inform USW of Noranda's refusal to arbitrate, a conclusion supported by "Noranda's decisions not to mention" the letter "when listing the times Noranda had told the [USW] it would not arbitrate this dispute."
B. Noranda's Opposition 
1. Exclusion from Arbitration
In opposition to USW's motion, Noranda asserts that the "presumption of arbitrability gives way to an express provision excluding a dispute from arbitration, " including where, as here, " [the CBA] has a standard grievance and arbitration procedure...  [the CBA] incorporates by reference the terms of the benefits plan...  [the Plan] makes the benefit determinations of the Plan Administrator final...[and]  "the Plan Administrator has the sole discretion to determine all matters relating to eligibility, participation[, ] as well as the operation of the plan, including all benefit eligibility and benefit amount determinations." Noranda argues that "the facts supporting the non-arbitrability of the parties' pension dispute are more compelling here than they were" in the Fifth Circuit's decision in Local Union No. 4-449, Oil, Chemical, and Atomic Workers Union, AFL-CIO v. Amoco Chemical Corp . ( "Amoco "), cited by Noranda in support of the propositions just stated, because here, Noranda's Plan "explicitly allow[s] further review beyond the determinations made by the Plan Administrator." Noranda contends that, in addition to the Fifth Circuit in Amoco, other circuits have held that "these types of review procedures expressly exclude from arbitration grievances challenging decisions made by a plan administrator."
a. Conflict with the CBA
Noranda further argues that "no conflict exists between the Pension Plan and [the CBA], " contrary to USW's assertions on this point, because the arbitration provision present in Article 10 "only applies to those disputes that fall within the scope of Article 10 and are not otherwise exempted from Article 10." According to Noranda, "the language contained in the Noranda SPD and Pension Plan clearly and unambiguously exempt [sic] pension disputes from application of Article 10 of the [CBA], " meaning that "there simply can be no conflict between Article 11 of the Pension Plan and Article 10 of the Labor Agreement." Noranda asserts that any asserted conflict between Article 11 of the Pension Plan and the CBA's arbitration agreement "would have existed" in the contracts at issue in the Fifth Circuit's Amoco decision, but that the Fifth Circuit found no such conflict, but rather an "exemption from arbitration."
Finally, Noranda asserts that USW "fails to recognize" that both the Pension Plan and the Summary Plan Description ("SPD") have been incorporated by reference into the CBA. Noranda argues that the SPD, like the Pension Plan, "contains broad language expressly exempting Pension Plan disputes from the arbitration agreement." Noranda asserts that although "a provision of the Noranda SPD... states that if there is a conflict between the Pension Plan and the SPD[, ] the terms of the Pension Plan control, " USW "fails to cite any conflict between the Pension Plan and the SPD." "Indeed, " Noranda argues, "the Pension Plan is entirely consistent with the SPD and expressly excludes pension disputes from the arbitration provision of the [CBA]."
b. Article 9 of the CBA
Noranda further asserts that USW "attempts to contort Haydel's pension dispute into one that is somehow impacted by the seniority provisions contained in Article 9 of the [CBA], " because that Article deals with "plant seniority, " while "this case is undisputedly about a pension determination, " a subject that has "nothing to do with an employee's benefit service' under the Pension Plan." Noranda asserts that USW's citation to the definition of "continuous service" in Article 9 is inapposite, since that term is "synonymous with the term seniority, '" and USW "cites absolutely no language that even remotely suggests that the definition" of the term "should be used to determine how an employee's pension is calculated under the Pension Plan." Indeed, Noranda argues, "Section 2.01 of the Pension Plan provides its own separate and distinct definition of the term continuous service, '" and states that this definition "shall be used for the purpose of determining [an employee's] Vesting Service and Benefit Service under the plan." Therefore, Noranda argues, USW's citation of Article 9 is a "bald attempt to bootstrap what is clearly a pension dispute into a dispute that is somehow impacted by the seniority provisions of the Labor Agreement."
c. Pension Plan
Noranda asserts that "even if Article 9 is relevant to the calculation of a participant's pension, the language of the Noranda Pension Plan and SPD would nonetheless give the Plan Administrator sole discretion to make Article 9 seniority determinations in connection with a pension dispute, " since the Noranda SPD and Pension Plan "vest with the Plan administrator the sole discretion to determine all matters relating to eligibility, participation, as well as the operation of the plan, including all benefit eligibility and benefit amount determinations." According to Noranda, this grant of discretion "necessarily encompasses determinations regarding a participant's seniority, to the extent relevant to a participant's pension calculation."
Noranda argues that the United States Court of Appeals for the Sixth Circuit's Teamsters Local Union No. 783 v. Anheuser-Busch, Inc . is "directly on point" with the present case, because in that case, the Sixth Circuit "rejected the union's argument that its grievance was subject to arbitration because it was related to the seniority provisions of the collective bargaining agreement rather than the terms of the pension plan, " because the Pension Plan established "alternative dispute resolution provisions" establishing that "a grievance under... [the seniority provisions] of the CBA seeking a determination of rights under the Pension Plan would be expressly excluded from the arbitration clause." Further, Noranda argues, the Sixth Circuit rejected the union's assertion "that the grievance arose solely under the seniority provisions of the collective bargaining agreement, " because the union's own complaint asserted that "the underlying subject of the grievance was pension rights under the Pension Plan." Noranda argues that here, as in Anheuser Busch, "the Noranda Pension Plan and SPD make absolutely clear that all... disputes related to the pension plan are excluded from arbitration."
d. Past Practice
Noranda also asserts that "past practice confirms that the pension dispute is not arbitrable, " because neither USW nor any of its members "ha[ve] ever grieved a pension benefit determination at any point from the time Noranda first obtained an ownership interest in the Gramercy refinery on October 1, 2004 until the present, " even though more than 80 of those members applied for a pension benefit since January 1, 2005, and more than 50 members have commenced pension benefits in the past 3.5 years, all "in accordance with the procedures established in the Noranda SPD and Pension Plan." Accordingly, Noranda asserts, "the position taken by Plaintiff in this case is entirely inconsistent with the position it and its members have taken for the past 9.5 years, " demonstrating that USW's complaint, filed after Haydel "submitt[ed] an application to the Plan Administrator for a disability pension, " is "nothing other than a bald attempt at forum shopping."
Noranda next argues that USW's claim is untimely, because USW "challenged Noranda's calculation of Haydel's benefit service on April 3, 2012, " asserting "that the issue was governed by the terms of the [CBA] and, in particular, Article 9 of the [CBA]." Noranda contends that in its April 4, 2012 response, it "pointed out that the calculation of [Haydel's] benefit service was governed by the terms of the Pension Plan, " necessarily implying that "the determination was not controlled by the grievance procedure established in the Labor Agreement." According to Noranda, "there is no other rational manner in which to interpret Noranda's April 4, 2012 letter, " since "the specific language utilized in the Noranda SPD and Pension Plan clearly' and obviously excludes arbitration for grievances concerning such subject matter, " just as did the pension plan at issue in Amoco . Noranda further argues that its subsequent communication, discussed by USW in support of its motion, does not support its assertion that Noranda did not refuse to arbitrate until after April 4, 2012, because the April 4, 2012 letter amounted to a refusal to arbitrate. Therefore, Noranda asserts, USW's claim is untimely.
Finally, Noranda asserts that USW is "not entitled to an award of fees, " because USW's "claims were brought in bad faith and are meritless, " and because USW, "rather than Noranda, has pursued this litigation by using vexatious litigation practices." Moreover, Noranda argues, "even assuming that USW's arguments have merit... the only evidence that [USW] cites in support of its request for fees is the fact that Noranda refused to arbitrate the grievance." On this point, Noranda argues that its actions "were fully supported" by Fifth Circuit precedent, and, in any event, a refusal to arbitrate "cannot, as a matter of law, support a claim for fees."
C. USW's Reply 
1. Amoco Decision
In further support of its motion, USW contends that the Fifth Circuit's Amoco decision, cited by Noranda, "does not control" the present issue, because the Plan here "contains language, found nowhere in Amoco, indicating that the parties intended that grievances like [the present grievance] be arbitrable." USW asserts that although the Fifth Circuit found in Amoco that "there was no ambiguity as to the intent of the Agreement to exclude grievances dealing with sickness and disability benefits from arbitration, " this Court "cannot draw such a conclusion because Section 11.17 of the Plan provides that the Plan language on which [Noranda] relies shall not apply to the extent any such provision conflicts with [the CBA].'"
Here, USW asserts, "the conflict between the CBA and Section 11.08 of the Plan is obvious, " since USW filed a grievance asserting a violation of Haydel's seniority rights under Article 9(d)(1)(c) of the CBA. USW contends that although its grievance "indirectly challenges a benefit determination, " it also implicates the CBA, such that it cannot be both resolved by arbitration (pursuant to the CBA) and "conclusive[ly] decided by Plan administrators, " as provided in Section 11.08 of the Plan. In Amoco, USW argues, the Fifth Circuit "resolved a similar tension by inferring that the parties intended to remove benefit disputes from arbitration." Here, by contrast, "no such inference is appropriate, " since "the parties created an explicit rule for this situation in Section ...