Rule 206 ELECTRONIC CITATION: 2004 FED App. 0119P (6th Cir.) File Name: 04a0119p.06… v. Thyssenkrupp Elevator Manufacturing, Inc.

*The Honorable D aniel M . Friedman, Circuit Judge of the United
States Court of Appeals for the Federal Circuit, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0119P (6th Cir.)
File Name: 04a0119p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
INTERNATIONAL
BROTHERHOOD OF
BOILERMAKERS, LOCAL
UNION NO. S-251,
Plaintiff-Appellant,
v.
THYSSENKRUPP ELEVATOR
MANUFACTURING, INC.,
Defendant-Appellee.
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No. 02-6439
Appeal from the United States District Court
for the Western District of Tennessee at Jackson.
No. 02-01015—James D. Todd, Chief District Judge.
Argued: March 11, 2004
Decided and Filed: April 23, 2004
Before: MOORE, SUTTON, and FRIEDMAN, Circuit
Judges.*
2 Int’l Brotherhood of Boilermakers v.
Thyssenkrupp Elevator Manufacturing,
Inc.
No. 02-6439
_________________
COUNSEL
ARGUED: Michael T. Manley, BLAKE & UHLIG, Kansas
City, Kansas, for Appellant. Edward R. Young, YOUNG &
PERL, Memphis, Tennessee, for Appellee. ON BRIEF:
Michael T. Manley, BLAKE & UHLIG, Kansas City, Kansas,
for Appellant. Edward R. Young, Robert J. Leibovich,
YOUNG & PERL, Memphis, Tennessee, for Appellee.
_________________
OPINION
_________________
FRIEDMAN, Circuit Judge. This appeal challenges a
district court’s refusal to enforce an arbitrator’s award made
in a grievance procedure pursuant to a collective bargaining
agreement. The arbitrator ruled that the ground upon which
the company had discharged an employee was erroneous and
ordered the employee reinstated. The district court refused to
enforce the award because the company also had based the
discharge upon an alternative ground, which under the
collective bargaining agreement had become final when the
union had not challenged it before an arbitrator. We affirm.
I
A. The facts are undisputed. The collective bargaining
agreement between the appellee Thyssenkrupp Elevator
Manufacturing, Inc. (“the Company”) and the appellant
International Brotherhood of Boilermakers Local Union No.
S-251 (“the Union”), permits the Company to discharge
employees for “just cause.” The company’s “Attendance
Policy” provides for the imposition of “control points” on
employees for unauthorized absence, with increasingly severe

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No. 02-6439 Int’l Brotherhood of Boilermakers v.
Thyssenkrupp Elevator Manufacturing,
Inc.
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penalties for increased absences ranging from warnings for
six to eight points to a three-day layoff for nine points and
discharge for ten points.
Article XXI of the collective bargaining agreement contains
a four- step grievance procedure for the resolution of “any
dispute” between the Company and its employees involving
the interpretation or an alleged violation of a specific
provision of the agreement. Para. 1. The first two steps
involve discussion and negotiation between the employees
and their supervisors. Paras. 2-4. If the employee is
dissatisfied with the outcome, he may proceed to step three,
which involves discussion and negotiation between the Union
Grievance Committee and Company representatives. “If the
Union Grievance Committee is satisfied with the Company’s
decision, such decision shall constitute an agreement between
the Company and the Union and the Aggrieved employee
shall be bound by such agreement.” Para. 5.
If, however, the Union disagrees with the Company’s
decision in the step-three grievance, it “may within ten (10)
normal working days from date of written answer from the
Company appeal to an impartial arbitrator whose decision
shall be final and binding on the Company, the Union and its
members, and the aggrieved employee.” Para. 6. The
agreement further provides: “Any grievance which has been
properly presented under the grievance procedure and which
is not appealed to the next step by the Union within the
designated time limit shall be considered settled on the basis
of the Company’s decision in the last step through which it
was processed.” Para. 13. In case of a discharge, any
grievance proceeds immediately to step three. Art. XXII,
Para. 1.
B. The Company discharged its employee Danny
Chandler, effective September 7, 2000 for “Excessive
Absenteeism” (it determined he had eleven control points).
4 Int’l Brotherhood of Boilermakers v.
Thyssenkrupp Elevator Manufacturing,
Inc.
No. 02-6439
On October 18, 2000 the Company wrote Chandler that
following an investigation, it appeared that he had “violated
Company Rule No. 3, a rule that makes it a dischargeable
offense to engage in punching another employee’s time card,
falsifying any time card, payroll record, or work ticket;
knowingly giving false information to anyone whose duty it
is to make such records.” The letter continued:
This is to notify you that your termination is also being
based on your violation of Rule No. 3, effective
September 7, 2000.
The Union filed separate step-three grievances with respect
to each of these two grounds for discharge. The grievance
regarding the September 7 discharge notice was filed on that
date; the grievance regarding the October 18 notice was filed
on October 23. The Company denied the first grievance on
October 18, 2000 and denied the second grievance on
November 30, 2000. In denying the first grievance, the
Company stated: “All of the details realized as the basis of
termination has [sic] been considered, which includes details
in attendance as well as his time card violation covered by
Rule No. 3. As a result, we have determined that the
discharge was justified.”
The Union appealed to an arbitrator the Company’s denial
of the first grievance involving the discharge for excessive
absenteeism. The Union, however, did not appeal to an
arbitrator the Company’s denial of the second grievance
relating to the time card misuse.
C. At the hearing before the arbitrator, the Company
attempted to raise and present evidence regarding the issue of
the second ground of discharge. The Union objected on the
ground that “We’re not here for anything except excessive
absenteeism.” The arbitrator responded: “we’re here for
excessive absenteeism. That’s the only grievance that was

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No. 02-6439 Int’l Brotherhood of Boilermakers v.
Thyssenkrupp Elevator Manufacturing,
Inc.
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presented to me to hear and that’s the one I have to stand on.”
In response to the question “Is it the Union’s position that the
second grievance is a separate distinct grievance?”, the Union
responded “Yes.”
The arbitrator invalidated the Company’s discharge of
Chandler “for the excessive absenteeism issue presented in
this hearing” because it “did not meet the ‘just cause’
criteria.” The arbitrator ruled that the Company improperly
had determined that Chandler had accrued eleven control
points and that the proper number was nine, which permitted
only a three-day suspension, not a removal. The arbitrator
“changed” the removal “to a 3 day time off penalty as
outlined in the Attendance policy for 9 assessed points.” The
arbitrator also ordered “[t]he grievant . . . to be returned to his
employment status after the 3-day penalty is recorded,
without loss of his seniority or benefits.”
The arbitrator further stated:
With respect to the Company’s contention that this
hearing should also consider the charge of falsifying his
time worked record on August 17th which is a violation
of Company Rule No 3 is a valid part of this grievance
and should be part of this hearing is without merit [sic].
The grievant was not formally notified of these
additional charges until October 18, 2000 well after he
had been discharged for excessive absenteeism namely
September 7, 2000. These charges had not been
discussed in the lower steps of the grievance procedure.
The charge of falsifying his time record therefore, is
“after the fact” and not admissible in this hearing. The
only charge that is valid in this hearing is the one as
noted on the grievance form that he was discharged for
excessive absenteeism.
6 Int’l Brotherhood of Boilermakers v.
Thyssenkrupp Elevator Manufacturing,
Inc.
No. 02-6439
The Union then filed suit against the Company in the
United States District Court for the Western District of
Tennessee and moved for summary judgment enforcing the
arbitrator’s decision. The Company also moved for summary
judgment. The district court denied the Union’s motion and
granted the Company’s. The court explained:
Because Defendant discharged Chandler on two separate
and distinct grounds, Plaintiff filed two separate and
distinct grievances, Plaintiff and Defendant had two
separate and distinct step three meeting [sic], and
Plaintiff chose only to appeal one grievance, the second
grievance became final in accordance with the terms of
the collective bargaining agreement.
Order at 9.
The court stated that in these circumstances, “the
Arbitrator’s decision regarding Chandler’s excessive
absenteeism is irrelevant.” Id. at 8.
II
A. In the first portion of the grievance procedure followed
in this case (the step-three procedure), both the Union and the
Company treated the two grounds upon which the Company
discharged Chandler as separate and distinct disputes. As the
district court pointed out, the Union filed “two separate and
distinct grievances” and the Union and the Company “had
two separate and distinct step-three meeting[s].” The
Company wrote separate letters rejecting each of the
grievances.
The Union, however, appealed to arbitration only the first
of the grievances, relating to the Company’s discharge of
Chandler for excessive absenteeism. The effect of its failure
to appeal the other ground of discharge - the time card

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No. 02-6439 Int’l Brotherhood of Boilermakers v.
Thyssenkrupp Elevator Manufacturing,
Inc.
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misuse - was to make that ground of discharge final. In the
words of the collective bargaining agreement, the grievance
relating to that ground of discharge was “considered settled
on the basis of the Company’s decision in the” step-three
grievance, i.e., that “nothing” had been presented “to
substantiate that Mr. Chandler’s time record was not
falsified.”
Thus, when the grievance related to Chandler’s alleged
excessive absenteeism came before the arbitrator for
resolution in step four of the grievance procedure, the case
was in the following posture: the Company had rejected the
other grievance involving the alternative ground for discharge
and, because the Union had not taken that grievance to
arbitration, the Company’s rejection of it had become final.
Accordingly, there was outstanding a final determination by
the Company discharging Chandler for time card misuse.
Therefore, there was nothing the arbitrator could do with
respect to the only ground of discharge that was before him -
for excessive absenteeism - that could change Chandler’s
discharge, which had become final and unreviewable.
There was, therefore, no live controversy remaining with
respect to the validity of Chandler’s discharge. Even if the
arbitrator set aside the excessive absenteeism ground for that
discharge, the discharge still would remain in effect because
of the unchallenged alternative ground upon which it also
rested. In traditional terms, there was no longer any case or
controversy regarding the discharge, and any question
regarding its validity was moot.
In comparable circumstances courts have recognized that
there was nothing for them to decide where their decision on
the issue before them would have no impact or effect on the
rights of the parties. Thus, in Carras v. Williams, 807 F.2d
1286 (6th Cir. 1986), Carras filed suit in a federal court under
42 U.S.C. § 1983 to enjoin the Justices of the Michigan
8 Int’l Brotherhood of Boilermakers v.
Thyssenkrupp Elevator Manufacturing,
Inc.
No. 02-6439
Supreme Court, two state trial judges and others from
participating in a state court suit in which he was a party. The
court of appeals ruled that “[w]hen the United States Supreme
Court denied Carras’ petition for writ of certiorari, however,
the Michigan trial court judgment became final and the state
court suit was terminated. Because there is no longer a state
court proceeding from which to enjoin the named defendants’
participation, the relief which Carras has sought can no longer
be given by a federal court. Therefore, this aspect of Carras’
suit has become moot.” Id. at 1289 (citations omitted).
Similarly, in Rosskamp v. Kerr McGee Corp., 992 F.2d 557
(5th Cir. 1993), the Fifth Circuit affirmed the district court’s
holding that the employer was statutorily immune from
liability for a tort claim. The Fifth Circuit then held: “Our
agreement with the district court on statutory employer
immunity renders moot Phillips’ cross-appeal arguing
alternative grounds for tort immunity.” Id. at 557. In
Kaminski v. United States, 339 F.3d 84 (2d Cir. 2003), the
Second Circuit ruled in a federal habeas corpus proceeding
arising out of a federal criminal conviction, that a “certificate
of appealability does not permit review of . . . alternative
bases for the district court’s decision. And, ordinarily, unless
a certificate encompasses all of the grounds for a court’s
ruling on an issue, an appeal that challenges only some of the
district court’s grounds will be moot.” Id. at 85.
These cases all involved different facts and different issues.
What they have in common with the present case, however,
is the recognition that “[t]he test for mootness is whether the
relief sought would, if granted, make a difference to the legal
interests of the parties.” McPherson v. Mich. High Sch.
Athletic Ass’n, 119 F.3d 453, 458 (6th Cir. 1997) (en banc)
(internal quotations marks omitted); see also Bowman v.
Corr. Corp. of America, 350 F.3d 537, 550 (6th Cir. 2003).

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No. 02-6439 Int’l Brotherhood of Boilermakers v.
Thyssenkrupp Elevator Manufacturing,
Inc.
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Here, as we have shown, the arbitrator’s rejection of the
excess absenteeism ground for discharge could not affect the
discharge itself, which also rested on another unchallenged
ground. In determining the validity of the excess absenteeism
ground for discharge, the arbitrator thus performed a futile
act. The district court so recognized when it stated that,
because the Company’s alternative ground for discharge was
not appealed and became final, “the arbitrator’s decision
regarding Chandler’s excessive absenteeism is irrelevant.”
B. The Union invokes cases that stress the limited role the
courts have in reviewing arbitrators’ decisions in proceedings
under collective bargaining agreements. See, e.g., United
Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 36
(1987) (“[T]he courts play only a limited role when asked to
review the decision of an arbitrator.”); id. at 38 (“Courts thus
do not sit to hear claims of factual or legal error by an
arbitrator as an appellate court does in reviewing decisions of
lower courts.”). It argues that under these principles the
district court was required to accept the arbitrator’s rulings
that no issue involving the alternative ground of discharge
was properly before him and that because the Company
erroneously determined that Chandler had eleven control
points rather than nine, his discharge based on that
determination was improper and the Company therefore was
required to reinstate him after suspending him for three days.
Those cases might be relevant if the challenge to the
arbitrator’s award here related to his evaluation of the merits
of the alternative ground of discharge or even to his refusal to
consider the merits of that ground. Those would be matters
for the arbitrator. Here, however, the arbitrator’s error was in
deciding the merits of the excessive absenteeism ground for
discharge in a situation where that decision could not affect
the rights of the parties. That is not a matter that the
collective bargaining agreement commits to the arbitrator.
10 Int’l Brotherhood of Boilermakers v.
Thyssenkrupp Elevator Manufacturing,
Inc.
No. 02-6439
The cases dealing with the limited scope of judicial review of
arbitrators’ decisions are irrelevant to that issue.
The Union also relies on the Seventh Circuit’s decision in
Chrysler Motors Corp. v. International Union, Allied
Industrial Workers, Local 793, 2 F.3d 760 (1993), as
authority that the district court should have enforced the
arbitrator’s award in this case. The facts in that case, which
is not binding precedent in this court, are sufficiently different
from those in the present case that that case is not persuasive
authority here.
In Chrysler, the Company discharged a male employee for
sexually harassing a female employee. The Union filed a
grievance challenging the discharge, and the arbitrator,
concluding that the discharge was too severe a penalty for the
employee’s single transgression, reduced it to a thirty-day
suspension. Although the Company presented evidence to the
arbitrator that the employee had committed similar
transgressions on four other occasions, the arbitrator refused
to consider that evidence because the Company became aware
of it only after it had discharged the employee.
The Company then in effect reinstated the employee for one
day and discharged him again for the four other
delinquencies. The court of appeals upheld both the
Company’s reinstatement of the employee and its subsequent
discharge of him “pursuant to the evidence its post-discharge
investigation had uncovered,” which it described as “entirely
appropriate.” 2 F.3d at 764.
In Chrysler there were two separate discharges, the second
made after the Company had reinstated the employee for a
day, and only the first of which was the subject of a
grievance. In the present case, in contrast, there was only a
single discharge, on September 7, 2000, although the
Company subsequently provided an additional ground for that

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No. 02-6439 Int’l Brotherhood of Boilermakers v.
Thyssenkrupp Elevator Manufacturing,
Inc.
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action. The Company’s notification to Chandler of the
second ground for discharge informed him that his
“termination is also being based on [his] violation of Rule
No. 3, effective September 7, 2000.” The present case thus
involved two different grounds for a single discharge, each of
which was the subject of a separate grievance, and one of
which became final when the Union did not appeal it to the
arbitrator. Chrysler, however, involved two separate and
different discharges, based upon different grounds, only the
first of which was the subject of a grievance. Chrysler simply
is not relevant to the issue we decide in this case.
CONCLUSION
The judgment of the district court is affirmed.

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