           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2    Int’l Brotherhood of Boilermakers v. No. 02-6439
        ELECTRONIC CITATION: 2004 FED App. 0119P (6th Cir.)                     Thyssenkrupp Elevator Manufacturing,
                    File Name: 04a0119p.06                                      Inc.

UNITED STATES COURT OF APPEALS                                                                _________________

                  FOR THE SIXTH CIRCUIT                                                            COUNSEL
                    _________________
                                                                           ARGUED: Michael T. Manley, BLAKE & UHLIG, Kansas
                                                                           City, Kansas, for Appellant. Edward R. Young, YOUNG &
 INTERNATIONAL                   X                                         PERL, Memphis, Tennessee, for Appellee. ON BRIEF:
 BROTHERHOOD OF                   -                                        Michael T. Manley, BLAKE & UHLIG, Kansas City, Kansas,
 BOILERMAKERS, LOCAL              -                                        for Appellant. Edward R. Young, Robert J. Leibovich,
                                  -   No. 02-6439                          YOUNG & PERL, Memphis, Tennessee, for Appellee.
 UNION NO . S-251,                -
           Plaintiff-Appellant,    >                                                          _________________
                                  ,
                                  -
            v.                    -                                                               OPINION
                                  -                                                           _________________
 THYSSENKRUPP ELEVATOR            -                                          FRIEDMAN, Circuit Judge. This appeal challenges a
 MANUFACTURING, INC.,             -                                        district court’s refusal to enforce an arbitrator’s award made
          Defendant-Appellee. -                                            in a grievance procedure pursuant to a collective bargaining
                                 N                                         agreement. The arbitrator ruled that the ground upon which
      Appeal from the United States District Court                         the company had discharged an employee was erroneous and
    for the Western District of Tennessee at Jackson.                      ordered the employee reinstated. The district court refused to
  No. 02-01015—James D. Todd, Chief District Judge.                        enforce the award because the company also had based the
                                                                           discharge upon an alternative ground, which under the
                    Argued: March 11, 2004                                 collective bargaining agreement had become final when the
                                                                           union had not challenged it before an arbitrator. We affirm.
              Decided and Filed: April 23, 2004
                                                                                                         I
  Before: MOORE, SUTTON, and FRIEDMAN, Circuit
                    Judges.*                                                 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
     The Ho norable D aniel M . Friedman, Circuit Judge of the United      employees for unauthorized absence, with increasingly severe
States Court of Appeals for the Federal Circuit, sitting by designation.

                                   1
No. 02-6439      Int’l Brotherhood of Boilermakers v.       3    4      Int’l Brotherhood of Boilermakers v. No. 02-6439
               Thyssenkrupp Elevator Manufacturing,                     Thyssenkrupp Elevator Manufacturing,
                                                Inc.                    Inc.

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

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

misuse - was to make that ground of discharge final. In the        Supreme Court, two state trial judges and others from
words of the collective bargaining agreement, the grievance        participating in a state court suit in which he was a party. The
relating to that ground of discharge was “considered settled       court of appeals ruled that “[w]hen the United States Supreme
on the basis of the Company’s decision in the” step-three          Court denied Carras’ petition for writ of certiorari, however,
grievance, i.e., that “nothing” had been presented “to             the Michigan trial court judgment became final and the state
substantiate that Mr. Chandler’s time record was not               court suit was terminated. Because there is no longer a state
falsified.”                                                        court proceeding from which to enjoin the named defendants’
                                                                   participation, the relief which Carras has sought can no longer
  Thus, when the grievance related to Chandler’s alleged           be given by a federal court. Therefore, this aspect of Carras’
excessive absenteeism came before the arbitrator for               suit has become moot.” Id. at 1289 (citations omitted).
resolution in step four of the grievance procedure, the case
was in the following posture: the Company had rejected the            Similarly, in Rosskamp v. Kerr McGee Corp., 992 F.2d 557
other grievance involving the alternative ground for discharge     (5th Cir. 1993), the Fifth Circuit affirmed the district court’s
and, because the Union had not taken that grievance to             holding that the employer was statutorily immune from
arbitration, the Company’s rejection of it had become final.       liability for a tort claim. The Fifth Circuit then held: “Our
Accordingly, there was outstanding a final determination by        agreement with the district court on statutory employer
the Company discharging Chandler for time card misuse.             immunity renders moot Phillips’ cross-appeal arguing
Therefore, there was nothing the arbitrator could do with          alternative grounds for tort immunity.” Id. at 557. In
respect to the only ground of discharge that was before him -      Kaminski v. United States, 339 F.3d 84 (2d Cir. 2003), the
for excessive absenteeism - that could change Chandler’s           Second Circuit ruled in a federal habeas corpus proceeding
discharge, which had become final and unreviewable.                arising out of a federal criminal conviction, that a “certificate
                                                                   of appealability does not permit review of . . . alternative
  There was, therefore, no live controversy remaining with         bases for the district court’s decision. And, ordinarily, unless
respect to the validity of Chandler’s discharge. Even if the       a certificate encompasses all of the grounds for a court’s
arbitrator set aside the excessive absenteeism ground for that     ruling on an issue, an appeal that challenges only some of the
discharge, the discharge still would remain in effect because      district court’s grounds will be moot.” Id. at 85.
of the unchallenged alternative ground upon which it also
rested. In traditional terms, there was no longer any case or         These cases all involved different facts and different issues.
controversy regarding the discharge, and any question              What they have in common with the present case, however,
regarding its validity was moot.                                   is the recognition that “[t]he test for mootness is whether the
                                                                   relief sought would, if granted, make a difference to the legal
   In comparable circumstances courts have recognized that         interests of the parties.” McPherson v. Mich. High Sch.
there was nothing for them to decide where their decision on       Athletic Ass’n, 119 F.3d 453, 458 (6th Cir. 1997) (en banc)
the issue before them would have no impact or effect on the        (internal quotations marks omitted); see also Bowman v.
rights of the parties. Thus, in Carras v. Williams, 807 F.2d       Corr. Corp. of America, 350 F.3d 537, 550 (6th Cir. 2003).
1286 (6th Cir. 1986), Carras filed suit in a federal court under
42 U.S.C. § 1983 to enjoin the Justices of the Michigan
No. 02-6439       Int’l Brotherhood of Boilermakers v.        9    10    Int’l Brotherhood of Boilermakers v. No. 02-6439
                Thyssenkrupp Elevator Manufacturing,                     Thyssenkrupp Elevator Manufacturing,
                                                 Inc.                    Inc.

  Here, as we have shown, the arbitrator’s rejection of the        The cases dealing with the limited scope of judicial review of
excess absenteeism ground for discharge could not affect the       arbitrators’ decisions are irrelevant to that issue.
discharge itself, which also rested on another unchallenged
ground. In determining the validity of the excess absenteeism         The Union also relies on the Seventh Circuit’s decision in
ground for discharge, the arbitrator thus performed a futile       Chrysler Motors Corp. v. International Union, Allied
act. The district court so recognized when it stated that,         Industrial Workers, Local 793, 2 F.3d 760 (1993), as
because the Company’s alternative ground for discharge was         authority that the district court should have enforced the
not appealed and became final, “the arbitrator’s decision          arbitrator’s award in this case. The facts in that case, which
regarding Chandler’s excessive absenteeism is irrelevant.”         is not binding precedent in this court, are sufficiently different
                                                                   from those in the present case that that case is not persuasive
  B. The Union invokes cases that stress the limited role the      authority here.
courts have in reviewing arbitrators’ decisions in proceedings
under collective bargaining agreements. See, e.g., United             In Chrysler, the Company discharged a male employee for
Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 36           sexually harassing a female employee. The Union filed a
(1987) (“[T]he courts play only a limited role when asked to       grievance challenging the discharge, and the arbitrator,
review the decision of an arbitrator.”); id. at 38 (“Courts thus   concluding that the discharge was too severe a penalty for the
do not sit to hear claims of factual or legal error by an          employee’s single transgression, reduced it to a thirty-day
arbitrator as an appellate court does in reviewing decisions of    suspension. Although the Company presented evidence to the
lower courts.”). It argues that under these principles the         arbitrator that the employee had committed similar
district court was required to accept the arbitrator’s rulings     transgressions on four other occasions, the arbitrator refused
that no issue involving the alternative ground of discharge        to consider that evidence because the Company became aware
was properly before him and that because the Company               of it only after it had discharged the employee.
erroneously determined that Chandler had eleven control
points rather than nine, his discharge based on that                 The Company then in effect reinstated the employee for one
determination was improper and the Company therefore was           day and discharged him again for the four other
required to reinstate him after suspending him for three days.     delinquencies. The court of appeals upheld both the
                                                                   Company’s reinstatement of the employee and its subsequent
  Those cases might be relevant if the challenge to the            discharge of him “pursuant to the evidence its post-discharge
arbitrator’s award here related to his evaluation of the merits    investigation had uncovered,” which it described as “entirely
of the alternative ground of discharge or even to his refusal to   appropriate.” 2 F.3d at 764.
consider the merits of that ground. Those would be matters
for the arbitrator. Here, however, the arbitrator’s error was in     In Chrysler there were two separate discharges, the second
deciding the merits of the excessive absenteeism ground for        made after the Company had reinstated the employee for a
discharge in a situation where that decision could not affect      day, and only the first of which was the subject of a
the rights of the parties. That is not a matter that the           grievance. In the present case, in contrast, there was only a
collective bargaining agreement commits to the arbitrator.         single discharge, on September 7, 2000, although the
                                                                   Company subsequently provided an additional ground for that
No. 02-6439      Int’l Brotherhood of Boilermakers v.      11
               Thyssenkrupp Elevator Manufacturing,
                                                Inc.

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.
