                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                      REVISED DECEMBER 7, 2004
                                                             November 11, 2004
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                  Clerk

                            No. 04-30142



INDEPENDENT COCA-COLA EMPLOYEES’ UNION OF
LAKE CHARLES, NO. 1060,

                                                 Plaintiff-Appellant,

versus


COCA-COLA BOTTLING COMPANY UNITED, INC.,
d/b/a Lake Charles Coca-Cola Bottling
Company,

                                                 Defendant-Appellee.

                        --------------------
           Appeal from the United States District Court
               for the Western District of Louisiana
                            (03-CV-1029)
                        --------------------

Before WIENER and PRADO, Circuit Judges, and KINKEADE,* District
Judge.

PER CURIAM:**

     Plaintiff-Appellant Independent Coca-Cola Employees’ Union of

Lake Charles, No. 1060 (“the Union”) appeals the district court’s

grant of summary judgment in favor of Defendant-Appellee Coca-Cola

Bottling Company United, Inc. (“Coca-Cola”).      The district court


     *
       District Judge for the Northern District of Texas, sitting
by designation.
     **
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
ruled that the Union’s cause of action to compel Coca-Cola to

arbitrate had prescribed (“time-barred”) because Coca-Cola informed

the Union of its unequivocal refusal to arbitrate on November 27,

2002, thereby triggering the six-month statute of limitations under

Section 301(a) of the Labor Management Relations Act (“LMRA”), 29

U.S.C. § 185(a), yet the Union did not sue Coca-Cola until June 2,

2003.     We affirm.

                          I. FACTS AND PROCEEDINGS

     In    August     1994,   Coca-Cola   suspended   Arthur     Etienne,   its

employee and a member of the Union, pending an investigation of his

arrest.      A collective bargaining agreement (“CBA”) between Coca-

Cola and the Union contains a grievance and arbitration procedure

which is the exclusive means by which aggrieved employees may

settle disputes with their employer.          The Union filed a grievance

contesting     Etienne’s      suspension.     (In     May    1996,   Coca-Cola

reinstated Etienne after the criminal charges were dismissed.)

     In      August     1998,    Coca-Cola     terminated       Etienne     for

“inefficiency, incompetency, neglect of work or decective [sic]

workmanship.”       In September 1998, Etienne and the Union filed

another grievance with Coca-Cola, this one contesting Etienne’s

termination.     Coca-Cola denied the grievance in December, and, in

February 1999, the Union notified Coca-Cola of its and Etienne’s

intent to arbitrate the dispute under the CBA.              Coca-Cola, through

its counsel, filed a written request with the Federal Mediation and



                                      2
Conciliation Service (“FMCS”) to provide an arbitration panel.                In

March 1999, the FMCS submitted an arbitration panel.

     Although the arbitration panel remained available, the parties

postponed selection of an arbitrator while they pursued amicable

settlement of Etienne’s grievance.          The Union contends that Coca-

Cola’s   request   for   an   arbitration      panel      and    its   continual

negotiations to resolve Etienne’s grievance led the Union to

believe that Coca-Cola had formally requested, acknowledged, and

accepted arbitration of Etienne’s grievance.                    The Union also

asserts that it understood that the parties would submit the

dispute to arbitration in the event that settlement negotiations

were unsuccessful.

     In March 2002, counsel for Coca-Cola wrote to Ken Schexnayder,

a Union representative and spokesman, advising the Union that,

although Coca-Cola had no legal obligation to Etienne, it would

settle the   grievance    for    $12,000.      In   its    letter,     Coca-Cola

informed the Union that the offer would remain open for thirty

days. (There is no evidence in the record that the Union or Etienne

accepted   the   settlement     offer,   counter-offered,         or   otherwise

responded within 30 days.)

     On November 19, 2002, the Union responded to Coca-Cola’s offer

by letter in which it outlined its position.              The Union informed

Coca-Cola that “[i]t is our position that this grievance is deemed

granted and that Coca-Cola is foreclosed from contesting this



                                     3
grievance because of its failure to adhere to the time limitations

set forth in the grievance procedure.”3

     On November 27, 2002, Coca-Cola responded to the Union’s

November 19 letter.   Coca-Cola informed the Union and Etienne that

any cause of action that they may have had had prescribed in six

months.   Coca-Cola’s letter stated:

     Please be advised that we totally disagree with the
     factual and legal conclusions set forth in your letter of
     November 19, 2002.

     We have on numerous occasions tried to amicably settle
     any grievance Mr. Etienne may have had.

     As you are aware, under La. Civil Code Art. 3494, a claim
     for wages or compensation is prescribed after three (3)
     years. Additionally, any cause of action the Union or
     Mr. Etienne may have had prescribed in six (6) months.
     (Del Costello v. International Brotherhood of Teamsters,
     462 U.S. 151; and Sussman v. News-Journal Corp., 742 F.2d
     1466.

     We are of the opinion that neither the Union nor Mr.
     Etienne have a viable cause of action at this time.

     On December 4, 2002, the Union and Etienne responded to Coca-

Cola’s November 27 letter.      They informed Coca-Cola that any

dispute over whether they had a viable cause of action was not ripe

because the parties had not exhausted the grievance and arbitration

procedure. They also asked Coca-Cola to provide them with dates on

which the parties could meet to select an arbitrator.

     On December 11, Coca-Cola responded to the Union, stating:


     3
       We do not speculate why Coca-Cola never contended that this
communication was a clear and unequivocal refusal of Etienne and
the Union to arbitrate.

                                 4
     Please be advised that any cause of action to compel
     arbitration has prescribed. By letter dated March 14,
     2002, the Union was advised that the Company had no legal
     obligation to Mr. Etienne, and the offer to settle the
     grievance would expire in 30 days from the date of that
     letter.

     Consequently, the Company is of the opinion it has no
     legal or contractual obligation to arbitrate Mr.
     Etienne’s grievance at this time.

     On June 2, 2003, the Union sued Coca-Cola in the United States

District Court for the Western District of Louisiana under Section

301(a) of the LMRA4 to compel Coca-Cola to arbitrate the Etienne

grievance.    In October 2003, Coca-Cola filed a motion for summary

judgment, maintaining that the Union’s cause of action to compel

arbitration was time-barred.   The district court found that in its

November 27, 2002 letter, Coca-Cola had clearly and unequivocally

refused to arbitrate Etienne’s grievance.   As more than six months

had passed between Coca-Cola’s November 27 letter and the filing of

the Union’s suit, the district court concluded that the plaintiffs

were time-barred from seeking to compel arbitration and granted

Coca-Cola’s motion for summary judgment, dismissing the action with

prejudice.

     The Union then filed a Motion to Alter or Amend Judgment under

Federal Rule of Civil Procedure 59.      In its motion, the Union

argued that the November 27 letter constituted constructive notice

only of Coca-Cola’s refusal to arbitrate.       The district court

disagreed, concluding that the Union was merely attempting to re-

     4
         29 U.S.C. § 185(a).

                                  5
litigate Coca-Cola’s motion for summary judgment.     The district

court denied the motion to alter or amend.   The Union timely filed

its notice of appeal.

                            II. ANALYSIS

A.   Summary Judgment

     1.    Standard of Review

     We review a district court’s grant of summary judgment de

novo, using the same standard as that applied by the district

court.5   Summary judgment is “proper, if, viewing the evidence and

inferences drawn from that evidence in the light most favorable to

the non-moving party, there is no genuine issue of material fact

and the moving part is entitled to judgment as a matter of law.”6

At this stage, “a court may not weigh the evidence or evaluate the

credibility of witnesses, and all justifiable inferences will be

made in the non-moving party’s favor.”7

     2.    Applicable Law

     We have held that “an action on a collective bargaining

agreement under section 301 of the Labor Management Relations Act

is governed by the six-month limitation included in section 10(b)



     5
       United States ex rel. Reagan v. E. Tex. Med. Ctr. Reg’l
Healthcare Sys., 384 F.3d 168, 173 (5th Cir. 2004).
     6
       Id. (citing FED. R. CIV. PROC. 56(c); Daniels v. City of
Arlington, 246 F.3d 500, 502 (5th Cir. 2001)).
     7
       Id. (citing Morris v. Covan World Wide Moving, Inc., 144
F.3d 377, 380 (5th Cir. 1998)).

                                 6
of the National Labor Relations Act.”8         The six-month limitation

period “accrues when one party clearly refuses to arbitrate the

dispute.”9   To   “make   it   clear”   that   an   employer   refuses   to

arbitrate, circuit courts have held that one of the parties must

take the unequivocal position that it will not arbitrate.10 Whether

the employer has unequivocally refused to arbitrate turns on the

particular facts of each case.11


     8
      Aluminum, Brick & Glassworkers Int’l Union Local 674 v. A.P.
Green Refractories, Inc., 895 F.2d 1053, 1055 (5th Cir. 1990).
     9
       Id. (citing Communications Workers of Am. v. W. Elec. Co.,
860 F.2d 1137, 1144-45 (1st Cir. 1988)).
     10
       Painewebber Inc. v. Faragalli, 61 F.3d 1063, 1067 (3d Cir.
1995) (“[W]e have held in the context of a petition to compel
arbitration under § 301(a) of the Labor Management Relations Act .
. . that such a cause of action ‘arises when [one of the parties]
takes an unequivocal position that it will not arbitrate.’”);
Aluminum, Brick & Glass Workers Int’l Union v. AAA Plumbing Pottery
Corp., 991 F.2d 1545, 1548 (11th Cir. 1993) (same); Associated
Brick Mason Contractors, Inc. v. Harrington, 820 F.2d 31, 38 (2d
Cir. 1987) (same).
     11
        In re Diamond D Constr. Corp., 15 F. Supp. 2d 274, 289
(W.D.N.Y. 1998). See also In re I.B.E.W. Sys. Council U-7, 180
F.3d 368, 370 (2d Cir. 1999) (finding that announcing status of
arbitration proceeding, deeming it abandoned, and returning
arbitration fees not unequivocal refusal to arbitrate); Schweizer
Aircraft Corp. v. Local 1752, Int’l Union, United Auto. Workers of
Am., 29 F.3d 83, 87 (2d Cir. 1994) (filing petition to stay
arbitration unequivocal refusal to arbitrate); Local Joint
Executive Bd. v. Exber, Inc., 994 F.2d at 675-76 (failing to
respond to union’s letter not an unequivocal refusal to arbitrate);
AAA Plumbing Pottery Corp., 991 F.2d at 1548 (stating that “I’m
sure you will agree that the matter is closed” not unequivocal
refusal to arbitrate; subsequent conduct, including responding to
subsequent letters, supported finding); A.P. Green Refractories,
895 F.2d at 1055 (refusing to arbitrate on day arbitration meeting
scheduled unequivocal refusal to arbitrate); W. Elec. Co., 860 F.2d
at 1138, 1144-45 (finding unequivocal refusal to arbitrate when
employer responded that matter non-arbitrable); 4200 Ave. K LLC v.

                                    7
Fishman, 164 F. Supp. 2d 339, 344 (S.D.N.Y. 2001) (filing motion to
stay arbitration unequivocal refusal to arbitrate); United
Steelworkers of Am. v. Murphy Oil, U.S.A., Inc., No. 00-0371, 2000
WL 1341471, at *1 (E.D. La. Sept. 14, 2000) (finding that
employer’s statement “there is nothing to arbitrate” unequivocal
refusal to arbitrate, but that employer’s subsequent conduct,
including additional negotiations and discussions, negated intent
in letter); In re Diamond D, 15 F. Supp. 2d at 289-97 (finding that
“the unequivocal refusal standard does not turn on whether the
party resisting arbitration has filed a petition to stay
arbitration or has uttered the magic words ‘we refuse to arbitrate
this dispute’” but that “[u]nambiguous conduct must also rise to
the level of an unequivocal refusal to arbitrate.”); Hotel
Greystone Corp. v. N.Y. Hotel & Motel Trades Council, 902 F. Supp.
482, 484-85 (S.D.N.Y. 1995) (finding that employer’s letter
opposing reconsideration of award not unequivocal refusal to
arbitrate); United Auto. Workers of Am., Local 1748 v. Midwesco
Filter Res., Inc., 884 F. Supp. 196, 198-99 (W.D. Va. 1995)
(failing to respond to letter to arbitrate not unequivocal refusal
to arbitrate); United Food & Commercial Workers Union, Local No. 88
v. Middendorf Meat Co., 794 F. Supp. 328, 330, 332 (E.D. Mo. 1992)
(finding that employer’s statement that it had no intention to
arbitrate because union’s initial request too late under collective
bargaining agreement unequivocal refusal to arbitrate); Int’l
Union, United Plant Guard Workers of Am. v. St. Joseph’s Univ., No.
91-8002, 1992 WL 96292, at *2-3 (E.D. Pa. Apr. 24, 1992) (finding
that expiration of period in collective bargaining agreement within
which to institute arbitration proceedings coupled with employer’s
failure to take action constituted unequivocal refusal to
arbitrate); United Steel Workers of Am. v. Black Top Paving Co.,
No. 88-2396, 1990 WL 106067, at *5 (W.D. Pa. Apr. 12, 1990)
(finding that employer’s contention that it unequivocally refused
to arbitrate and employee’s contention that employer’s letter was
stalling, and not refusal to arbitrate, foreclosed summary
judgment); Int’l Union, Allied Indus. Workers of Am. v. Mich.
Plastic Prods. Co., No. G89-10608 CA, 1990 WL 482463, at *1-2 (W.D.
Mich. Oct. 22, 1990) (finding that employer’s position that
grievance not subject to grievance procedures or arbitration
constituted unequivocal refusal to arbitrate but that employer’s
position that another grievance not subject to grievance procedure
only not specific enough to constitute unequivocal refusal to
arbitrate); Tenn. Valley Trades & Labor Council v. Tenn. Valley
Auth., 751 F. Supp. 135, 139-140 (M.D. Tenn. 1990) (finding that
agreement to negotiate seven grievances but refusal to negotiate
three other grievances constituted unequivocal refusal to arbitrate
three); Serv. Employees Int’l Union Local 252 v. 1500 Garage Corp.,
699 F. Supp. 487, 490 (E.D. Pa. 1988)(finding that company’s

                                8
     The Union argues that Coca-Cola did not unequivocally refuse

to arbitrate before sending its December 11, 2002 letter to the

Union.   Coca-Cola   counters   that   it   unequivocally   refused   to

arbitrate in its November 27, 2002 letter.     We discern no error in

the district court’s determination that Coca-Cola’s November 27

letter constituted an unequivocal refusal to arbitrate.

     In that letter, Coca-Cola informed the Union that any cause of

action that it or Etienne may have had was prescribed.       Coca-Cola

made clear its position that neither the Union nor Etienne had a

“viable cause of action” at that time because any cause of action

had prescribed.   We agree with the district court that when one

party tells another that it has no viable cause of action because

any claims that it might have had are now time-barred, that party

has unequivocally refused to arbitrate.      Although Coca-Cola might

have chosen its words more carefully, there is no need for a party

refusing to arbitrate to use that term (or any other talismanic



explicit statement that it declined the union’s request for
arbitration because CBA had expired constituted unequivocal refusal
to arbitrate); Bldg. Material & Constr. Drivers, Helpers and
Material Handlers, Teamsters, Local Union No. 341 v. Beaver Valley
Builder’s Supply, Inc., 645 F. Supp. 79, 81 (W.D. Pa. 1986)
(finding that employer’s “adamant refusal to even consider
arbitration” unequivocal refusal to arbitrate); Millmen’s Union
Local No. 1120 v. Pay Less Drug Stores Northwest, Inc., 589 F.
Supp. 675, 679 (D. Or. 1984) (finding that employer’s subsequent
action discussing merits of grievance with union’s counsel and
repeatedly stating that attorney considering whether dispute should
go to arbitration raised genuine issue of material fact even after
letter constituting unequivocal refusal to arbitrate).

                                  9
words) to express its refusal to arbitrate.12             Further, there is

no   record       evidence   that   Coca-Cola   engaged   in     any   activity

subsequent to the November 27 letter that would contradict its

position     as    expressed   therein.13       We   perceive    no    doubt   or

equivocation in Coca-Cola’s position that it did not intend to

arbitrate claims that the Union and Etienne could no longer pursue

by virtue of the statute of limitations.

      The Union relies heavily on AAA Plumbing Pottery Corp. to

support its proposition that Coca-Cola’s November letter should not

constitute an unequivocal refusal to arbitrate.14               AAA Plumbing is

distinguishable on the facts.           There, the employer stated that

“‘I’m sure you will agree that the matter is closed and it would be

inappropriate to reopen it at this time.’”15           The Eleventh Circuit

found this language equivocal in that it was no more than “an

attempt to persuade the [union]’s counsel that [its client] had no



      12
        See In re Diamond D, 15 F. Supp. 2d at 289 (“Given the
repeatedly stated public interest in a prompt resolution of labor
disputes, this court believes that the unequivocal refusal standard
does not turn on whether the party resisting arbitration has filed
a petition to stay arbitration or has uttered the magic words ‘we
refuse to arbitrate this dispute.’”).
      13
       See, e.g., United Steelworkers of Am. v. Murphy Oil, U.S.A.,
Inc., No. Civ.A.00-0371, 2000 WL 1341471, at *1 (E.D. La. Sept. 14,
2000) (finding that employer’s statement “there is nothing to
arbitrate” unequivocal refusal to arbitrate, but that employer’s
subsequent   conduct,   including   additional   negotiations   and
discussions, negated intent in letter).
      14
           991 F.2d 1545 (11th Cir. 1993).
      15
           991 F.2d at 1548.

                                       10
basis     for   the   suggestion   that    the   parties   should   return   to

arbitration.”16       Here, in contrast, the declaration in Coca-Cola’s

letter that the Union’s and Etienne’s claim had prescribed is not

merely suggestive of Coca-Cola’s rejection of arbitration but an

unambiguous and unequivocal statement of its position that there

was no reason to arbitrate a prescribed claim.

     As a further distinction, we note that later conduct of the

employer in AAA Plumbing contributed to the Eleventh Circuit’s

determination that the language in the employer’s letter did not

constitute an unequivocal refusal to arbitrate.            There, the lawyer

for the employer sent a subsequent letter to opposing counsel in

which he stated that he “would be interested to see what the

Union’s position [was] concerning [the employee’s] backpay.”17               In

contrast, there is no record evidence that Coca-Cola engaged in any

conduct subsequent to its November 27 letter that could be seen as

casting doubt on its stated position that the Union’s and Etienne’s

causes of action had prescribed. That Coca-Cola might have engaged

in intermittent negotiations during the course of approximately

three years over Etienne’s grievance before sending the November

letter is of no moment:        Once Coca-Cola sent that letter to the

Union, Coca-Cola’s position that it would not arbitrate a time-




     16
          Id. (emphasis added).
     17
          Id.

                                      11
barred claim was unmistakable.18          We agree with the district

court’s     ruling   that   Coca-Cola’s   November   27,   2002   letter

constituted an unequivocal refusal to arbitrate and, consequently,

that the Union’s claim prescribed before it filed suit against

Coca-Cola on June 2, 2003.

B.   Motion to Alter or Amend

     1.     Standard of Review

     We generally review the denial of a motion to alter or to

amend judgment under Rule 59(e) for abuse of discretion.19        If the

district court’s ruling implicates reconsideration of a question of

law, we review the denial de novo.20

     2.     Analysis




     18
       At oral argument, counsel for the Union appeared to argue
that the November 27 letter could not constitute an unequivocal
refusal to arbitrate because Coca-Cola’s legal argument therein —
that the claim had already prescribed (apparently by virtue of the
March 2002 letter) — was faulty. Counsel argued that the claim had
not prescribed in November 2002 because the parties had not
exhausted the arbitration proceedings and Coca-Cola had not yet
refused to arbitrate. The Union’s reliance on the possibility that
Coca-Cola’s legal conclusion was erroneous misses the mark.
Whether Coca-Cola’s legal conclusion that a previous letter
constituted an unequivocal refusal to arbitrate was correct is
irrelevant to our determination that the November 27 letter
triggered the six-month statute of limitations.
     19
        Pioneer Natural Res. USA, Inc. v. Paper, Allied Indus.,
Chem., & Energy Workers Int’l Union Local 4-487, 328 F.3d 818, 820
(5th Cir. 2003).
     20
          Id.

                                   12
     A Rule 59(e) motion to alter or to amend judgment “‘calls into

question the correctness of a judgment.’”21 We have previously held

that a Rule 59(e) motion “is not the proper vehicle for rehashing

evidence, legal theories, or arguments that could have been offered

or raised before the entry of judgment.”22    A Rule 59(e) motion

“‘serve[s] the narrow purpose of allowing a party to correct

manifest errors of law or fact or to present newly discovered

evidence.’”23 Rule 59(e) also provides relief to a party when there

has been an intervening change in the controlling law.24    Relief

under Rule 59(e) is an extraordinary remedy that should be used

sparingly.25

     In its motion to alter or amend judgment in the district

court, the Union insisted that Coca-Cola’s November 27, 2002 letter

was at best constructive notice of its refusal to arbitrate.    In

paragraph eight of its Statement of Material Facts as to Which

There is no Genuine Issue to be Tried, Coca-Cola wrote:


     21
       Templet v. Hydrochem, Inc., 367 F.3d 473, 478 (5th Cir.
2004) (quoting In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th
Cir. 2002)).
     22
       Id. (citing Simon v. United States, 891 F.2d 1154, 1159 (5th
Cir. 1990)).
     23
       Id. (quoting Waltman v. Int’l Paper Co., 875 F.2d 468, 473
(5th Cir. 1989)).
     24
       Schiller v. Physicians Res. Group, Inc., 342 F.3d 563, 567-
68 (5th Cir. 2003) (citing In re Benjamin Moore & Co., 318 F.3d
626, 629 (5th Cir. 2002)).
     25
       Templet, 367 F.3d at 479 (citing Clancy v. Employers Health
Ins. Co., 101 F. Supp. 2d 463, 465 (E.D. La. 2000)).

                                13
     The Union and Arthur Etienne received constructive notice
     of the letter sent by G. Michael Pharis to Marshall J.
     Simien, Jr. dated November 27, 2002.

The Union contends that this constitutes a “judicial admission” by

Coca-Cola that its November letter constituted constructive notice

only, and thus does not entitle Coca-Cola to summary judgment here.

To support this proposition, the Union cites to other circuit

courts that have held that constructive notice of the refusal to

arbitrate is insufficient because the refusal must be unequivocal.26

     The Union did not raise this argument in its opposition to

Coca-Cola’s motion for summary judgment.   Rather, the Union did so

for the first time in its motion to alter or to amend judgment

before the district court. “Defenses not raised or argued at trial

are ordinarily waived by the parties failing to raise them.”27    A

Rule 59(e) motion “cannot be used to argue a case under a new legal

theory.”28   The Union could have raised this argument in its

Memorandum in Opposition to Coca-Cola’s Motion for Summary Judgment

(or even in a supplemental memorandum).    Accordingly, we conclude




     26
       Local Joint Executive Bd. v. Exber, Inc., 994 F.2d 674, 676
(9th Cir. 1993); see also Painewebber Inc. v. Faragalli, 61 F.3d
1063, 1067 (3d Cir. 1995); AAA Plumbing Pottery Corp., 991 F.2d at
1548; Associated Brick Mason Contractors, Inc. v. Harrington, 820
F.2d 31, 38 (2d Cir. 1987).
     27
        Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)
(citing Cunningham v. Healthco, Inc., 824 F.2d 1448, 1458 (5th Cir.
1987)).
     28
        Id. (quoting Fed. Deposit Ins. Corp. v. Meyer, 781 F.2d
1260, 1268 (7th Cir. 1986) (citations omitted)).

                                14
that the Union waived this argument.29   The district court did not

abuse its discretion when it denied the motion to alter or to

amend.

                         III.   CONCLUSION

     For the foregoing reasons, the rulings of the district court

are, in all respects,

AFFIRMED.




     29
       We note that while the term “constructive notice” might have
been an unfortunate choice of an adjective to describe the notice
that the November 27 letter provided, it is obvious that counsel
for Coca-Cola was not using that as a term of art to distinguish it
from actual notice. Notice to counsel of record is always notice
to the client; indeed, it would be an ethical violation for counsel
to communicate directly with the party opposite.

                                 15
