Opinion
No. 12–10752.
2012-08-24
SHEET METAL EMPLOYERS INDUSTRY PROMOTION FUND, and Sheet Metal Employers Industry Apprenticeship Reimbursement Fund, Plaintiffs, v. ABSOLUT BALANCING CO. INC., Enviro–Aire/Total Balance Company, Inc., Aerodynamics Inspecting Co., Airflow Testing, Inc., and Barmatic Inspecting Co., Defendants.
Douglas M. Lash, Anthony A. Asher, Sullivan, Ward, Southfield, MI, for Plaintiff. Scott W. Rooney, Thomas C. Nemes, Nemes, Rooney & McKindles, P.C., Farmington Hills, MI, for Defendants.
Douglas M. Lash, Anthony A. Asher, Sullivan, Ward, Southfield, MI, for Plaintiff. Scott W. Rooney, Thomas C. Nemes, Nemes, Rooney & McKindles, P.C., Farmington Hills, MI, for Defendants.
OPINION AND ORDER
LAWRENCE P. ZATKOFF, District Judge.
I. INTRODUCTION
This matter is before the Court on Plaintiffs' Motion for Summary Judgment to Confirm an Arbitration Award [dkt. 13]. The motion has been fully briefed by the parties. The Court finds that the facts and legal arguments are adequately presented in the parties' papers such that the decision process would not be significantly aided by oral argument. Therefore, pursuant to E.D. Mich. L.R. 7.1(f)(2), it is hereby ORDERED that the motion be resolved on the briefs submitted. For the reasons set forth below, Plaintiffs' Motion for Summary Judgment to Confirm an Arbitration Award is DENIED.
II. BACKGROUND
Plaintiffs are trust funds that bring this action under § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(c), to confirm arbitration awards against Defendants for purported breaches of a collective bargaining agreement (“CBA”). The CBA provided to the Court is effective from June 1, 2009, through May 31, 2013, and was entered into between the Sheet Metal and Air Conditioning Contractor National Association–Metropolitan Detroit Chapter (“SMACNA”) and Sheet Metal Worker's International Association (“SMWIA”) Local Union No. 80 (“Local 80”). SMACNA is the bargaining unit for sheet metal contractors that specialize in heating, ventilating and air conditioning; speciality stainless steel work; and testing and balancing.
Defendants include Absolut Balancing Co. Inc. (“Absolut”), Enviro–Aire/Total Balance Company, Inc. (“Enviro–Aire”), Aerodynamics Inspecting Co. (“Aerodynamics”), Airflow Testing, Inc. (“Airflow”), and Barmatic Inspecting Co. (“Barmatic”). They are testing and air balancing control (“TAB”) contractors. Defendants are allegedly not members of Local 80 and are represented by the Associated Air Balance Council (“AABC”). According to Defendants, their only affiliation with SMWIA and Local 80 is based on an agreement between AABC and SMWIA.
Plaintiffs claim that Defendants were bound by the CBA, which required the payment of fringe benefits to Plaintiffs under Sections 15 and 16 of Addendum 1 of the CBA. Section 15 creates the Industry Promotion Fund (“Promotion Fund”) and requires the employer of members of the union to contribute to the Promotion Fund for each hour worked by each of the employers' employees. Similar to Section 15, Section 16 creates the Industry Apprenticeship Reimbursement Fund (“Reimbursement Fund”). Contributions to the fund are based on the hours worked by each of the employers' employees.
“Employers” and “Employee” appear to be terms defined elsewhere in the CBA. According to the first page of the CBA, “Employer” is defined as SMACNA and “Union” is defined as Local 80. Plaintiffs, however, have provided only the pages of the CBA they find relevant, which does not appear to include any pages defining the terms “Employers” or “Employees” as used in the CBA.
Plaintiffs filed grievances against Defendants for failing to make contributions to the two funds since 2006. Pursuant to Article X, Section 2, of the CBA, the grievances were heard by the Local Joint Adjustment Board (“LJAB”) for final and binding arbitration on February 15, 2011. While Defendants received notice of the grievance hearings by letters from the LJAB, Defendants opted to not be present at the hearings. The LJAB issued the following decisions on February 25, 2011, and March 9, 2011, finding that Defendants violated the CBA by failing to contribute to the Promotion Fund and Reimbursement Fund:
a decision issued against Defendant Absolut in the amount of $39,447.20—comprising $21,121.48 to the Promotion Fund and $18,355.73 to the Reimbursement Fund;
a decision issued against Defendant Aerodynamics in the amount of $92,564.52—comprising $49,636.32 to the Promotion Fund and $42,928.20 to the Reimbursement Fund;
a decision issued against Defendant Barmatic in the amount of $35,241.56—comprising $18,967.53 to the Promotion Fund and $16,274.03 to the Reimbursement Fund;
a decision issued against Defendant Airflow in the amount of $74,130.94—comprising $39,698.97 to the Promotion Fund and $34,431.98 to the Reimbursement Fund; and
a decision issued against Defendant Enviro–Aire in the amount of $189,823.54—comprising $102,278.85 to the Promotion Fund and $87,544.69 to the Reimbursement Fund.
The LJAB provided no analysis in its decisions (solely noting that after a closed session, they had a “full and thorough discussion”), only listed the evidence submitted, explained the basic procedural background, and stated its final award against Defendants.
Defendants have neither complied with the decisions nor moved to vacate the decisions. After Plaintiff filed separate cases against each Defendant in this Court, the cases were consolidated based on similarity of the parties, facts and controlling law. On May 25, 2012, Plaintiffs filed the instant motion for summary judgment. Plaintiffs argue that the Court should summarily enter judgment in their favor because Defendants are precluded from asserting any defenses based on the three-month limitations period for challenging arbitration awards under § 301 of the LMRA. Defendants claim they are not foreclosed from defending against this action because the CBA is not applicable to them. According to Defendants, the CBA is between SMACNA and Local 80, not Defendants.
III. STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party must support its assertions by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or;
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed.R.Civ.P. 56(c)(1).
The moving party bears the initial burden of demonstrating the absence of any genuine dispute as to a material fact, and all inferences should be made in favor of the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party discharges its burden by “ ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case.” Horton v. Potter, 369 F.3d 906, 909 (6th Cir.2004) (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548).
Once the moving party has met its initial burden, the burden then shifts to the nonmoving party, who “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “[T]he mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient [to defeat a motion for summary judgment]; there must be evidence on which the jury could reasonably find for the [nonmoving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
While neither party has made a jury demand in this case, the Court still finds the language used in Anderson applicable when determining whether Plaintiffs are entitled to summary judgment.
IV. ANALYSIS
The Sixth Circuit applies a three-month limitations period to a § 301 claim brought to vacate an arbitrator's award in a Michigan district court. Occidental Chem. Corp. v. Int'l Chem. Workers Union, 853 F.2d 1310, 1314–15 (6th Cir.1988); accord Bacashihua v. U.S.P.S., 859 F.2d 402, 406 (6th Cir.1988). The Sixth Circuit explained that since the employer failed to timely file an action to vacate the award, the employer could not later challenge the award during a subsequent action brought by the union to enforce the award on any similar grounds that could have been raised in a timely action to vacate. Occidental, 853 F.2d at 1317;Prof'l Adm'rs Ltd. v. Kopper–Glo Fuel, Inc., 819 F.2d 639, 642–43 (6th Cir.1987). The Sixth Circuit reasoned that barring defenses was consistent with the quick resolution of arbitrated disputes and resulted in an action to confirm an arbitration award being a summary proceeding. Occidental, 853 F.2d at 1317. “Arbitration is meant to be a quick and final resolution by which parties are bound. Moreover, an action to confirm the award should be a summary proceeding, not a proceeding in which the defendant seeks affirmative relief.” Kopper–Glo Fuel, Inc., 819 F.2d at 642.
Guided by Occidental and Kopper–Glo Fuel, Inc., Defendants' ability to challenge the LJAB decisions is procedurally and substantively foreclosed. See id.
While Defendants are foreclosed from attacking the LJAB decisions, the Court's review of the LJAB decisions does not end here. Even though Defendants failed to timely move to vacate the award, the Court must determine if enforcing the CBA is contrary to public policy. W.R. Grace & Co. v. Local Union 759, Int'l Union of the United Rubber Workers, 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983). The public policy at issue must be “an explicit, well defined and dominant public policy” that “specifically militates against the relief ordered by the arbitrator.” E. Associated Coal Corp. v. United Mine Workers of Am., 531 U.S. 57, 63, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000). The Court determines this policy “ ‘by reference to the laws and legal precedents and not from general considerations of supposed public interests.’ ” W.R. Grace & Co., 461 U.S. at 766, 103 S.Ct. 2177 (quoting Muschany v. United States, 324 U.S. 49, 66, 65 S.Ct. 442, 89 L.Ed. 744 (1945)); see also United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29 at 43, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987).
In sum, the issue left before the Court is whether enforcement of the LJAB decisions is against public policy. See Occidental, 853 F.2d at 1317. Defendants raise two reasons as to why the decisions are against public policy:
(1) Companies should not be forced to pay into the Promotion Fund because it is “not wages, hours and benefits for the purpose of the employer, employee relationship”;
(2) the Court has no subject matter jurisdiction over non-signatories to the CBA.
Defendant directs the Court to Comm. of Plumbing and Pipefitting Ind.-Det. v. Wash. Grp. Inter'l, Inc., 568 F.3d 626 (6th Cir.2009), and Metro. Det. Bricklayers Dist. Council v. JE Hoetger & Co., 672 F.2d 580, 583 (6th Cir.1982).
Defendants' first argument is unconvincing. Forcing Defendants to contribute to a fund that promotes the whole union, as opposed to a fringe benefit for a specific employer, is not determined to be against “an explicit, well defined and dominant” public policy. The LJAB determined that the failure to contribute to the Promotion Fund and the Reimbursement Fund was a failure to pay fringe benefits, and Defendants therefore were ordered to make such contributions. None of the legal authority cited by Defendants—including Washington Group and JE Hoetger—“specifically militates against” either contributing to the Promotion Fund as a fringe benefit or labeling the Promotion Fund as a fringe benefit. Rather, Defendants are relying on their own “general considerations of supposed public interests.”
Defendants' second argument, while inarticulately pled, has merit. After review of the applicable laws and legal precedents, the Court finds that enforcing an arbitration award, based on violations of a collective bargaining agreement, against employers who allegedly are not parties to the collective bargaining agreement is against “explicit, well defined and dominant” public policy. A rudimentary principle of arbitration is that it is a creature of contract. Stolt–Nielsen v. AnimalFeeds Int'l Corp., 559 U.S. 662, 130 S.Ct. 1758, 1773, 176 L.Ed.2d 605 (2010) (citing Volt Inf. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)). Arbitration is “a matter of consent, not coercion[,]” and the parties must agree to it. Id. This is a foundational principle which limits the power of arbitration to only those that consent. Volt, 489 U.S. at 479, 109 S.Ct. 1248;AT & T Techs., Inc. v. Commc'ns Workers, 475 U.S. 643, 648–49, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) ( “[A]rbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration”).
It is well defined in the Sixth Circuit that an arbitrator exceeds his or her authority by making an award against persons who were not parties to the arbitration proceedings. NCR Corp. v. Sac–Co., Inc., 43 F.3d 1076, 1080 (6th Cir.1995); Orion Shipping & Trading Co. v. E. States Petroleum Corp. of Pan., S.A., 312 F.2d 299, 300 (2d Cir.1963), cert. den. 373 U.S. 949, 83 S.Ct. 1679, 10 L.Ed.2d 705 (1963). “An arbitration panel may not determine the rights or obligations of non-parties to the arbitration.” Nationwide Mut. Ins. Co. v. Home Ins. Co., 330 F.3d 843, 846 (6th Cir.2003). “ ‘[A] decision whether parties other than those formally signatories to an arbitration clause may have their rights and obligations determined by an arbitrator ... is not within the province of the arbitrator himself but only the court.’ ” NCR Corp., 43 F.3d at 1080 (quoting Orion Shipping & Trading Co., 312 F.2d at 301);see also John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 547, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Teamsters Local Union No. 783 v. Anheuser–Busch, Inc., 626 F.3d 256, 261 (6th Cir.2010); Promotora de Navegacion, S.A. v. Sea Containers, Ltd., 131 F.Supp.2d 412, 416 (S.D.N.Y.2000) (“Commercial arbitration is a creature of contract, and a person cannot be required to submit to arbitration any dispute which he has not agreed to so submit.”) (citations omitted).
Explicit, well defined public policy dictates against holding Defendants liable under the LJAB decisions for violations of the CBA, so long as Defendants are not signatories to the CBA and its arbitration provisions. Turning to the evidence presented by the parties, the Court finds that a genuine dispute of fact as to whether Defendants have agreed to the CBA, which contains the provisions creating the Promotion Fund, the Reimbursement Fund, and the authority of the LJAB to arbitrate disputes arising from the CBA. See Washington Group, 568 F.3d at 628 (noting that because the company did not sign the local collective bargaining agreements, the company cannot be required to make payments to the industry promotion funds.)
Plaintiffs have provided several documents signed by Defendants that purportedly establish that they are in fact signatories of the CBA. The Court's review of these documents, however, establishes that a jury could reasonably find that Defendants are not signatories of the CBA.
The first type of document submitted to the Court is a document identified as an addendum (“the Addendum”). The typed language provided in the Addendums states, “This Addendum ... shall remain in full force and effect for the duration of the basic agreement.” The Addendums further provide, “We, the undersigned, have read ... the terms and conditions of the foregoing Labor Agreement and hereby agree to be bound thereto.” Each Addendum signed by Defendants contains the same typed language. Significantly, the Court was not provided the related basic agreement or “foregoing Labor Agreement” referred to in the Addendums. To the extent the Court has received these agreements, Plaintiffs have failed to show sufficiently which agreements are related to the Addendums by producing only the signatory pages of the Addendums. Plaintiffs have provided the Court no context as to what basic agreements or Labor Agreements relate to the Addendums.
Moreover, assuming the signing of the Addendum establishes that Defendants are bound to the CBA, Defendants Aerodynamics, Airflow, and Barmatic have included handwritten language on their respective Addendums. Defendant Aerodynamics' Addendum includes handwritten language noting that “Airbalance International [agreement] is our governing work rule[,]” and “This Agreement is ... with the clerk [sic] understanding that the Balancing International [agreement] is a full governing part.” Istvan Frohling signed the Addendum on behalf of Defendant Airflow on September 23, 1997, which includes the handwritten notation “[w]e agree to wages + benefit clauses only per AABC [not readable] internat[ional] Agreement.” Plaintiffs provide two other Addendums previously signed in May 1992 and March 1994. Both contain similar handwritten notations as appears on the September 23, 1997, addendum. Viliam Barci signed the Addendum on behalf of Defendant Barmatic on March 31, 1992, with the handwritten notation that “We agree to wages & benefit clause only.” A reasonable jury could conclude that the handwritten language restricts Defendants Aerodynamics, Airflow, and Barmatic from having agreed to the arbitration provision.
The LJAB notes in its decision that it received proof that the CBA applied to Defendant Aerodynamics based on a contract signed by Laszlo Lukas on March 20, 2000, and a contract for the period beginning June 1, 1976. The Court has not been provided the full pages of the March 20, 2000, contract and does not have a single page from the June 1, 1976, contract.
The LJAB indicates in its decision that it also reviewed a Letter of Assent dated May 28, 1992, that purportedly binds Defendant Air Flow to the CBA. Plaintiff has not provided this Letter of Assent to the Court with its motion for summary judgment.
As to Defendant Enviro–Aire, the LJAB decision notes that it was provided with the following evidence as proof that Defendant Enviro–Aire was bound to the CBA: “Contracts signed by David Pauwels, President, dated December 22, 1988 and March 9, 1994 along with an Agreement for Weekly Contributions of Fringe Benefits dated February 12, 1988.” Notably, the Court has been provided with Addendums signed on March 9, 1994, and December 22, 1988, and an Agreement for Weekly Contributions of Fringe Benefits—all signed by Paul Giles on behalf of Defendant Enviro–Aire. Neither party explains this discrepancy.
Plaintiffs also submitted documents for several Defendants that are letters of assent and agreements to contribute weekly fringe benefits. Defendant Absolut is a party to a letter of assent with Local 80, which states:
This is to certify that the undersigned firm has examined and does agree to comply with the terms and conditions of the employment contained in the Collective Bargaining Agreement by and between [Local 80] and [SMACNA], which continues in effect through May 31, 1999. It is further agreed that the signing of this Letter of Assent shall be as binding on the undersigned firm as though it has signed the above referred to Agreement and any amendments thereto.
Defendants Absolut and Enviro–Aire signed agreements to make weekly contributions of “fringe benefits” according to an agreement between SMACNA and Local 80. The agreement referred to between SMACNA and Local 80 is the CBA. The agreement signed by Defendants, however, does not expressly bind them to the arbitration provisions in the CBA. Rather, the agreement binds Defendants Absolut and Enviro–Aire only to make weekly fringe benefits in the amounts determined in the CBA.
Further evidence submitted by Defendants supports the conclusion that documents signed by Defendants did not bind them to the CBA, and thus the arbitration provisions contained therein. SMACNA's website as of April 3, 2012, explained that there were two types of memberships with SMACNA. The first type, active members, are defined as members “who are contributors to the Sheet Metal Industry Promotion Fund.” Associate members, to the contrary, are defined as those “who are not contributors to the Sheet Metal Industry Promotion Fund.” In October of 2010, Defendant Barmatic and Defendant Enviro–Aire are listed as associate members on SMACNA's website. It then follows that Defendant Barmatic and Defendant Enviro–Aire are not required to pay into the Promotion Fund because they are associate members. According to the CBA, the Promotion Fund and the Reimbursement Fund are to be paid by “Employers.” Thus, “Employers”, as the term is used in the CBA, may not include Defendants. A jury could reasonably find that Defendants, not being “Employers”, are not bound by the grievance procedures since the CBA only binds the “Employer” and the “Union” to grievances “arising out of interpretation or enforcement of this Agreement.”
As of July 25, 2012, Defendants Absolut, Aerodynamics, Air Flow, Barmatic, and Enviro–Aire are now listed on SMACNA's website as “Testing & Balancing Contractors” and not associate members. Plaintiffs provide no explanation as to why the specific Defendants in this case have been recently reclassified as active members.
Additionally, a computer record regarding benefits data for Defendant Enviro–Aire also shows that Defendants may not be bound by the CBA. Two comments, dated September 4, 2002, and April 8, 2003, stored in the computer record state that Defendant Enviro–Aire is not a member of SMACNA and does not pay into the Promotion Fund and Reimbursement Fund. A check issued from Plaintiff Promotion Fund to Defendant Barmatic in May 2007 also establishes that Defendant Barmatic was reimbursed $1,181.13 for erroneously paying into the fund. Approximately three years pass, and Plaintiffs are now asserting that Defendants are required to submit payments to the Promotion Funds, including the past six years. Plaintiffs provide no explanation for this change in position. As such, for the reasons stated above, the Court finds that a genuine dispute of fact exists as to whether Defendants are bound by the CBA and the arbitration provisions contained therein.
Accordingly, it is against well defined public policy to apply the CBA against any party that is not a signatory to it. Based on the genuine dispute of fact as to whether Defendants are bound by the CBA and the arbitration provisions contained therein, Plaintiffs' motion for summary judgment is DENIED.
V. CONCLUSION
Accordingly, for the above reasons, IT IS HEREBY ORDERED that Plaintiffs' Motion for Summary Judgment to Confirm an Arbitration Award [dkt. 13] is DENIED.
IT IS SO ORDERED.
ORDER DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION
This matter is before the Court on Plaintiffs' Motion for Reconsideration [dkt. 42]. Pursuant to E.D. Mich. L.R. 7.1(h)(2), no response is permitted. The Court finds that the facts and legal arguments are adequately presented in Plaintiffs' motion and brief such that the decision process would not be significantly aided by oral argument. Therefore, pursuant to E.D. Mich. L.R. 7.1(h)(2), it is hereby ORDERED that the motion be resolved on the brief submitted. For the reasons set forth below, Plaintiffs' Motion for Reconsideration is DENIED.
I. BACKGROUND
The Court set forth the facts of this case in its August 1, 2012, Opinion and Order, which Plaintiffs now challenge:
Plaintiffs are trust funds that bring this action under § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(c), to confirm arbitration awards against Defendants for purported breaches of a collective bargaining agreement (“CBA”).
...
Defendants ... are testing and air balancing control (“TAB”) contractors.... Plaintiffs claim that Defendants were bound by the CBA, which required the payment of fringe benefits to Plaintiffs under Sections 15 and 16 of Addendum 1 of the CBA ....
Plaintiffs filed grievances against Defendants for failing to make contributions to the two funds since 2006. Pursuant to Article X, Section 2, of the CBA, the grievances were heard by the Local Joint Adjustment Board (“LJAB”) for final and binding arbitration on February 15, 2011. While Defendants received notice of the grievance hearings by letters from the LJAB, Defendants opted to not be present at the hearings. The LJAB issued ... decisions on February 25, 2011, and March 9, 2011, finding that Defendants violated the CBA by failing to contribute to the Promotion Fund and Reimbursement Fund.
See dkt. # 32. On May 25, 2012, Plaintiffs filed a Motion for Summary Judgment, arguing that the Court should summarily enter judgment in their favor because Defendants are precluded from asserting any defenses based on the three-month limitations period for challenging arbitration awards under § 301 of the LMRA. See dkt. # 13.
On August 1, 2012, the Court found, based on a narrow exception, that well-defined public policy dictates against holding Defendants liable under the LJAB decisions if Defendants are not signatories to the CBA. See dkt. # 32. Because the Court determined that there was a genuine dispute of material fact as to whether Defendants were signatories to the CBA, the Court denied Plaintiffs' Motion for Summary Judgment. Plaintiffs subsequently filed the instant Motion for Reconsideration, arguing that the Court's decision is “palpably erroneous” and Plaintiffs did not have the opportunity to brief the public policy exception to which the Court relied on in denying Plaintiffs' Motion for Summary Judgment. See dkt. # 42, at 2. In the alternative, Plaintiffs request that the Court certify the issue for appeal to the Sixth Circuit. The issue framed by Plaintiffs is whether enforcement of the LJAB decisions is against public policy if Defendants are not signatories to the CBA and failed to timely vacate the decisions.
II. ANALYSIS
A. Reconsideration of the Court's August 1, 2012, Opinion & Order
Local Rule 7.1(h) governs motions for reconsideration, stating that “the court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the court, either expressly or by reasonable implication.” E.D. Mich. L.R. 7.1(h)(3) (emphasis added). The same subsection further states, “[t]he movant must not only demonstrate a palpable defect by which the court and the parties ... have been misled but also show that correcting the defect will result in a different disposition of the case.” Id. A defect is palpable when it is “obvious, clear, unmistakable, manifest, or plain.” Chrysler Realty Co., LLC v. Design Forum Architects, Inc., 544 F.Supp.2d 609, 618 (E.D.Mich.2008).
Plaintiffs argue that they “did not have an opportunity to previously brief this issue due to the inaccurate and ‘inarticulate’ manner in which it was raised by Defendant [sic].” Plaintiffs attempt to bolster their argument by citing to the Court's own language in its Opinion and Order that Defendants' argument regarding the public policy exception was “inarticulately pled.” See dkt. # 34, at 7.
Plaintiffs' argument is absurd for the reasons highlighted below:
(1) There is no legal authority that precludes the Court from resolving a moving party's motion on grounds not previously raised or cited to by the parties.
(2) While Plaintiffs focus on the Court's characterization of Defendants' public policy argument as “inarticulately pled,” such characterization neither forecloses the legal merit of Defendants' argument nor the Court's ability to rely on Defendants' argument.
(3) Plaintiffs' lack of opportunity to respond to Defendants' public policy argument belies the fact that they first raise the public policy exception on page seven of their initial Motion for Summary Judgment. See dkt. # 13 at 7 (citing to Sixth Circuit precedent).
(4) Defendants' response and supporting brief to Plaintiffs' Motion for Summary Judgment also raises the public policy exception, as exemplified in the following instances:
(a) On page three of their response, Defendants enumerate a list containing the language that the “award violates the generally enumerated public policies,” and cite to their attached brief and two cases in support. See dkt. # 18, at 3.
NLRB v. Detroit Resilient Floor, Local 2265, 317 F.2d 269 (6th Cir.1963); Jt. Admin. Comm. v. Wash. Grp. Int'l, Inc., 568 F.3d 626 (6th Cir.2009).
(b) The response's table of contents contains a section labeled “VIOLATES PUBLIC POLICY”, and directs the reader to page fourteen of the supporting brief. See dkt. # 18, at 5.
(c) Page fourteen of the attached brief contains the bold heading “VIOLATES PUBLIC POLICY.” The heading precedes an entire page of discussion as to why Defendants can still challenge the award under the public policy exception, despite the fact that their time may have passed to file affirmative defenses.
(d) In Defendants' section on the public policy exception, they cite to Occidental Chem. v. Int'l Chem. Workers Union, 853 F.2d 1310, 1315 (6th Cir.1988), to support their public policy argument; the same case Plaintiffs cite in their opening motion and brief.
The Court notes, even if one were to summarily read Occidental, the concluding lines of the opinion specifically reference the Sixth Circuit's acknowledgment and application of the public policy exception, stating as follows:
The only question requiring the court's decision under these circumstances is whether the arbitrator's award is against public policy .... The award does not violate public policy.
The judgment of the district court is affirmed.
Occidental, 853 F.2d at 1317 (emphasis added).
(e) Defendants' discussion of the public policy exception sets forth their two reasons why that exception is applicable to this award and uses the phrase “public policy” six times throughout their argument.
(5) Plaintiffs' reply to Defendants' response expressly labels a subsection “The Defendants have Failed to Articulate Why the Arbitration Award Violates Public Policy.” The subsection includes a paragraph of argument with several citations to legal authority.
For these reasons, Plaintiffs' argument that they did not have an opportunity to brief the controlling point of law that the Court relied on is rejected. Plaintiffs' decision on the length of argument they devoted to the public policy exception is of no concern to the Court. Plaintiffs' merely disagree with the Court's conclusion. Such disagreement is an inadequate basis upon which to file a motion for reconsideration. Accordingly, Plaintiffs' request for reconsideration of the Court's August 1, 2012, Opinion and Order is DENIED.
B. Certification of Issue for Interlocutory Appeal
A district court may certify an issue for interlocutory appeal if it determines that the order presents “[1] a controlling question of law as to which [2] there is substantial ground for difference of opinion and that [3] an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). “Review under § 1292(b) is granted sparingly and only in exceptional cases.” In re City of Memphis, 293 F.3d 345, 350 (6th Cir.2002) (citing Kraus v. Bd. of Cnty. Rd. Commis., 364 F.2d 919, 922 (6th Cir.1966)).
Plaintiffs contend that all three elements necessary for the Court to certify the issue relating to the public policy exception are met under § 1292. According to Plaintiffs, the issue is a controlling issue of law; the Court's August 1, 2012, Opinion and Order is contrary to Sixth Circuit precedent and thus, there is a substantial ground for difference of opinion; and, immediate appeal could conclusively resolve this issue of law and this case, avoiding factual discovery and a trial.
The Court has reviewed and considered the Sixth Circuit decisions relied on by Plaintiffs. See Titan Tire Corp. v. United Steelworkers of Am., 656 F.3d 368 (6th Cir.2011); Equitable Res., Inc. v. United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, AFL–CIO/CLC, 621 F.3d 538 (6th Cir.2010); Int'l Union, UAW v. Dana Corp., 278 F.3d 548 (6th Cir.2002); MidMich. Reg'l Med. Ctr. v. Local 79, 183 F.3d 497 (6th Cir.1999); Shelby Cnty. Health Care Corp. v. Am. Fed. State, Cnty. & Mun. Emps., 967 F.2d 1091 (6th Cir.1992); Occidental, 853 F.2d at 1310.
None of these decisions are on point with the factual circumstances of this case, and the rules of law enumerated in these cases is no different than the rules of law stated—and applied—by the Court in its August 1, 2012, Opinion and Order. The Court further finds no need to consider Plaintiffs' Eighth, Tenth, and Eleventh Circuit case law, as such cases are not dispositive of whether a substantial ground for difference of opinion exists under Sixth Circuit legal precedent. Plaintiffs also point to Metro. Detroit Bricklayers Dist. Council v. U.S. Brick/Real Brick Prods. Grp., No. 91–CV–40099–FL, 1991 WL 353353, at *1–3 (E.D.Mich. July 23, 1991) (J. Newblatt), wherein a defendant employer who failed to timely move to vacate an arbitration award was foreclosed from arguing that the arbitration panel lacked jurisdiction over the defendant employer. This decision, however, is not Sixth Circuit precedent, and the Court is not bound by it. It is also not clear from the decision whether the defendant employer ever raised the public policy exception or the district court considered it on its own accord. See id. at *3. For these reasons, the Court finds that this case is not exceptional and certification for appeal is unwarranted. See In re City of Memphis, 293 F.3d at 350. The Court therefore DENIES Plaintiffs' request to certify this issue for appeal.
III. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Plaintiffs' Motion for Reconsideration [dkt. 42] is DENIED.
IT IS SO ORDERED.