United Steelworkers of America, Afl-Cio, Clc v. Western District of Kentucky Century Aluminum of Kentucky

* The Honorable George Caram Steeh, United States District Judge for the Eastern District
of Michigan, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0959n.06
Filed: December 8, 2005
Nos. 04-5991
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STEELWORKERS OF AMERICA,
AFL-CIO, CLC; UNITED STEELWORKERS
OF AMERICA, LOCAL NO. 9423,
Plaintiffs-Appellees, ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
v. WESTERN DISTRICT OF KENTUCKY
CENTURY ALUMINUM OF KENTUCKY,
Defendant-Appellant.
____________________________________/
Before: CLAY and GIBBONS, Circuit Judges; STEEH, District Judge. *
GEORGE C. 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 of 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
agreement created a strong presumption of arbitrability and that the "Last Chance Agreement" did

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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 plant in Hawesville,
Kentucky. The CBA became effective on April 1, 2001, and runs through April 1, 2006. The
parties and union member Bill Brown, a covered employee, signed a December 13, 2002 "Last
Chance Agreement" (LCA), which provides in part:
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 agree 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 discretion 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,

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neither the termination nor any issue of the termination will be subject to the
grievance and arbitration 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 for 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 been 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 people 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 the LCA.
USWA filed suit in district court on January 20, 2004 to compel arbitration of Brown's discharge
under the provisions of the parties' CBA. On cross-motions for judgment on the pleadings under
Federal Rule of Civil Procedure 12(c), the district court issued a July 6, 2004 opinion and order
granting USWA's motion, and denying Century Aluminum's motion, upon concluding that: (1) the
CBA contains a broad arbitration clause creating a presumption of arbitrability; and (2) consistent
with this presumption of arbitrability, the court could not "say with positive assurance" that the
LCA's language excluded Brown's grievance from arbitration. Judgment in favor of USWA entered

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the same day, and Century Aluminum filed a timely notice of appeal with this Court on August 6,
2004.
II.
DISCUSSION
A. Standard of Review
This Court reviews a district court's order granting a Rule 12(c) motion for judgment on the
pleadings de novo. Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 511-12 (6th Cir. 2001). The
standard of review is the same as the standard of review applicable to a motion to dismiss under
Rule 12(b)(6), that is, in construing the pleadings and evidence in a light most favorable to the party
opposing the motion, whether that party can prove any set of facts in support of its claim that would
entitle it to relief. Id. (citing Mixon v. Ohio, 193 F.3d 389, 399-400 (6th Cir.1999)).
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 particular 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.

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at 650 (finding presumption of arbitrability particularly applicable to arbitration clause covering
"any differences arising with respect to the interpretation of this contract 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").
The parties' CBA provides for arbitration of a "grievance" if it is not settled at the third step
of the grievance process. CBA, Article 12, § 5, para. 3.
"Grievance" as used in this Agreement is limited to a matter which involves disputes
concerning the interpretation or application of or compliance with the provisions of
this Agreement. Claims relating to benefits denials, other than claims relating to
benefit denials by the Steelworkers Pension Trust, "the Trust," and the Steelworkers
Health and Welfare Fund, "the Fund," shall be processed through the grievance
procedure. Claims relating to benefit denials by the Trust and the Fund shall be
processed through the applicable ERISA internal procedures.
CBA, Article 12, § 3.
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

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bargaining representative for new job classification); Salary Policy II, 868 F.2d at 872, 877 (finding
presumption of arbitrability inapplicable 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
parties' 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 termination.
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 the
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 express 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

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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
exclude a dispute from arbitration is equally consistent with opposing interpretations, and the
language employed does not "clearly and unambiguously describe[] the issue or issues excluded
from arbitration," the LCA language "cannot be said to expressly exclude that issue." United
Steelworkers v. Lukens Steel Co., 969 F.2d 1468, 1476 (3d Cir. 1992) (emphasis in original).
Language in an LCA stating that the union employee "will be afforded an opportunity to plead his
case before the Disciplinary Commission," and that "neither the employee nor the Union shall have
recourse through the arbitration/grievance procedure to protest the suspension or disposition invoked
by the Disciplinary Committee," was found by the Third Circuit to be susceptible to the union's
interpretation of a bifurcation of the threshold issue of guilt and the issue of punishment, with only
the latter expressly excluded from arbitration. Id. at 1475-78. Consequently, the Lukens Steel court
concluded that the issue of whether employees subject to the LCA had in fact committed violations
of company drug policies remained subject to the arbitration/grievance procedure. Id. at 1478.
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 reasonable interpretation that only the final question of punishment was
expressly excluded from arbitration. Pace International Union v. Vacumet Paper Metalizing Corp.,
No. 02-6067, 91 Fed. Appx. 380, 383 (6th Cir. Jan. 12, 2004) (unpublished) (citing Lukens Steel Co.,
969 F.2d at 1476-78). "Because the LCA is susceptible to more than one reasonable interpretation,

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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, stating 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 that 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 termination at Century Aluminum's sole discretion arises only if
Brown's conduct factually 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

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We AFFIRM the district court's order granting USWA's motion for judgment on the
pleadings, denying Century Aluminum's motion for judgment on the pleadings, and compelling
referral of the grievance to arbitration for a determination of Brown's factual guilt or innocence.

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