                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 13a0965n.06

                                          No. 12-2630

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


LOCAL UNION 2-2000 UNITED STEEL, PAPER              )
AND     FORESTRY,          RUBBER,                  )                FILED
MANUFACTURING, ENERGY, ALLIED-                      )          NOV 8, 2013
INDUSTRIAL, CHEMICAL AND SERVICE                    )      DEBORAH S. HUNT, Clerk
WORKERS INTERNATIONAL UNION; UNITED                 )
STEEL, PAPER AND FORESTRY, RUBBER,                  )
MANUFACTURING, ENERGY, ALLIED-                      )
INDUSTRIAL, CHEMICAL AND SERVICE                    )
WORKERS INTERNATIONAL UNION                         )
                                                    )
       Plaintiffs-Appellees,                        )   ON APPEAL FROM THE UNITED
                                                    )   STATES DISTRICT COURT FOR
v.                                                  )   THE WESTERN DISTRICT OF
                                                    )   MICHIGAN
COCA-COLA REFRESHMENTS USA, INC.,                   )
                                                    )
       Defendant-Appellant.                         )   OPINION




Before: ROGERS and DONALD, Circuit Judges; ANDERSON, District Judge.*


       BERNICE BOUIE DONALD, Circuit Judge. Plaintiff unions sued employer Coca-Cola

for breach of their collective bargaining agreement, claiming that Coca-Cola failed to fulfill its

obligation to implement certain wage increases on the agreed-upon dates. The parties filed cross-

motions for summary judgment, offering competing interpretations of the collective bargaining

agreement. Coca-Cola also moved for summary judgment on grounds that the unions’ action was



       *
       The Honorable S. Thomas Anderson, United States District Judge for the Western District
of Tennessee, sitting by designation.
No. 12-2630
Local Union 2-2000 v. Coca-Cola Refreshments USA, Inc.

time-barred. The district court granted summary judgment in favor of the unions, and Coca-Cola

appeals the judgment. For the following reasons, we AFFIRM the judgment of the district court.


                                                 I.


       Plaintiffs, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-

Industrial and Service Workers International Union, AFL-CIO-CLC (“USW”) and its local union

affiliate, Local 2-2000, were parties to a collective bargaining agreement (“CBA”) with Defendant

Coca-Cola that governed Coca-Cola’s Paw Paw, Michigan facility from March 25, 2006 to

September 30, 2009. In September 2009, the parties engaged in extensive negotiations over an

agreement to replace the 2006 CBA. The negotiations resulted in an agreement to the following

wage increases:

               Year 1:        0% increase

               Year 2:        2% increase

               Year 3:        3% increase

The specific effective dates for these increases were not discussed in the negotiations.


       This agreement was documented in a Tentative Settlement Agreement (“TA”) by an officer

of Coca-Cola on September 28, 2009. The TA provided for an agreement duration from October

1, 2009 through September 30, 2012, with all terms of the prior CBA to remain in effect “except as

modified herein.” The TA further provided for three increases in fringe benefits, effective May 2,

2010; May 1, 2011; and May 6, 2012. The TA also provided for two Retirement Plan increases,



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Local Union 2-2000 v. Coca-Cola Refreshments USA, Inc.

effective March 25, 2010 and March 25, 2011, and three “sick and accident insurance” increases,

effective April 1, 2010; April 1, 2011; and April 1, 2012.


       The TA was signed by Coca-Cola and union officials the same day, signifying that a deal had

been reached subject to ratification by the local union’s membership. Coca-Cola’s labor relations

manager prepared a red-lined document for the local union, highlighting the changes from the prior

CBA. This document had an Appendix A, which provided the graduated rate increases as follows:

               Year 1:        0% increase

               Year 2:        2.0 % increase

               Year 3:        3.0 % increase

Appendix A did not specify the effective dates or wage rates. The local union membership reviewed

the red-lined document and voted to ratify the agreement on September 30, 2009. Coca-Cola then

presented a draft based on the red-lined document to the local union for proofreading. The union

returned the draft to the company with very minor corrections.


       At some point after the effective date of the agreement, Coca-Cola prepared a chart titled

“Appendix A” which listed March 21, 2010; March 20, 2011; and March 25, 2012 as the effective

dates for the agreed-upon wage increases, to align with the March wage increase dates in the

previous CBA.


       Local union negotiators signed signature pages supplied by the company with the

understanding that Coca-Cola would attach them to the corrected final CBA draft. Coca-Cola



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Local Union 2-2000 v. Coca-Cola Refreshments USA, Inc.

appended the various signature pages to a corrected draft and forwarded this to the parent union for

signature. The parent union representative, after a cursory review and with the assumption that the

local union had thoroughly proofread the final draft, obtained the necessary signatures.


        Coca-Cola had the executed agreement printed in booklet form, and the local union

distributed that booklet to its employees on July 17, 2010, over six months after the effective date

of the agreement. It was greeted with “immediate protests” in response to the inclusion of the

modified “Appendix A.” The local union president emailed the plant general manager, indicating

that a “mistake has been found . . . in Appendix A which has to do with our wage increase.” Coca-

Cola proceeded with the wage increases according to the Appendix A it had drafted, and declined

to arbitrate the matter.


        The local union filed suit for breach of contract on March 23, 2011, and the parent union

joined in the amended complaint filed January 3, 2012. The parties filed cross-motions for summary

judgment. The district court granted summary judgment in favor of the unions. Coca-Cola timely

filed the present appeal.


                                                II.


        The amended complaint’s sole cause of action against Coca-Cola is breach of the CBA. The

district court had jurisdiction under § 301 of the Labor Management Relations Act (LMRA), which

grants federal court jurisdiction over “[s]uits for violation of contracts between an employer and a

labor organization representing employees in an industry affecting commerce.” 29 U.S.C. § 185(a).

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Local Union 2-2000 v. Coca-Cola Refreshments USA, Inc.

Coca-Cola argues both that the unions’ action was time-barred and that the district court erred when

it reformed the wage increases provision of the agreement under the doctrine of mutual mistake of

fact to grant summary judgment to the unions. We address these arguments in turn, applying a de

novo standard of review. Dye v. Office of the Racing Comm’n, 702 F.3d 286, 294 (6th Cir. 2012)

(“We review de novo a district court’s grant of summary judgment.”).


                                                A.


       Because the LMRA does not set a specific limitations period, federal courts must apply the

most closely analogous state statute of limitations. Int'l Union, United Auto., Aerospace & Agr.

Implement Workers of Am. (UAW), AFL-CIO v. Hoosier Cardinal Corp., 383 U.S. 696, 703-04

(1966). Coca-Cola argues that the six-month limitation period contained in § 10(b) of the National

Labor Relations Act (NLRA), 29 U.S.C. § 160(b), applies to this case because, while presented as

a LMRA-based “breach of contract” action, the claim is actually more analogous to an unfair labor

practice claim.


       The company asserts that, because the unions became aware of the contractual dispute at

issue in July 2010 but only filed suit in March 2011, their claims are outside of the six-month

limitations period and are therefore time-barred. Coca Cola asserts that the local union’s filing of

an unfair labor practice charge based on the same subject matter as the amended complaint amounts

to a concession that § 10(b) of the NLRA applies.




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Local Union 2-2000 v. Coca-Cola Refreshments USA, Inc.

       The unions counter that their suit was timely filed within Michigan’s six-year limitations

period for contract actions applicable to LMRA § 301 actions to recover wages under the terms of

a CBA. The unions emphasize that the parties agree that the controversy before the court is a matter

of contract interpretation as to whether Coca-Cola discharged its duties under the 2009 CBA. The

unions point out that many, if not most, unilateral failures to meet CBA obligations result in both

an unfair labor practice charge before the National Labor Relations Board and a breach of contract

suit in district court. Finally, the unions argue that even if the NLRA six-month statute of

limitations were applied here, their action is not time-barred.


       For support of its statute of limitations argument, Coca-Cola relies primarily upon Cummings

v. John Morrell & Co., 36 F.3d 499 (6th Cir. 1994), whereas the unions look to the holdings in UAW

v. Hoosier Cardinal Corp., 383 U.S. 696 (1966), and Central States Southeast & Southwest Areas

Pension Fund v. Kraftco, Inc., 799 F.2d 1098 (6th Cir. 1986) (en banc). We will look to

Cummings—which analyzed both Kraftco and Hoosier—for guidance in determining whether to

apply the six-month limitations period set forth in § 10(b) of the NLRA or Michigan’s six-year

statute of limitations for breach of contract actions.


       The Cummings court acknowledged Supreme Court precedent from DelCostello v.

International Brotherhood of Teamsters, 462 U.S. 151 (1983), establishing that “hybrid” suits

combining § 301 and fair representation claims are subject to the abbreviated limitations period of

§ 10(b) “since it would be impractical to apply different statutes of limitations to different elements




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Local Union 2-2000 v. Coca-Cola Refreshments USA, Inc.

of a single cause of action.”1 36 F.3d at 503-04 (citing DelCostello, 462 U.S. at 170-71). The

hybrid characteristic distinguished this line of cases from the earlier Hoosier decision which applied

the state statute of limitations. Id. at 502. Because the gravamen of the complaint was “essentially

an action for damages caused by an alleged breach on an employer's obligation embodied in a

collective bargaining agreement,” the Hoosier court applied the applicable state statute of limitations

for breach of contract. 383 U.S. at 696, 705 n.7.


        Although DelCostello held that hybrid complaints are subject to the NLRA limitations

period, it made clear that application of a federal statute of limitations will only be appropriate in

unusual cases, and “resort[ing] to state law remains the norm for borrowing of limitations periods.”

462 U.S. at 171. The Supreme Court underscored this point several years later in Reed v. United

Transportation Union, 488 U.S. 319 (1989), when it called DelCostello a “closely circumscribed

exception” to “the general rule that statutes of limitation are to be borrowed from state law.” Id. at

324.


        Cummings also examined our en banc decision in Kraftco, in which a union-sponsored

pension fund sued an employer under the LMRA, alleging that the employer violated the terms of

a CBA by failing to make required payments into the pension fund. 36 F.3d at 505. Although the

employer attempted to portray the claim as substantially similar to an unfair labor practices claim,


        1
         The local union originally filed this action as a hybrid case, suing the parent union for unfair
representation and Coca-Cola for breach of the CBA. (PageID 1-2.) The two unions then jointly
filed an amended complaint against Coca-Cola for breach of contract. (PageID 228.) The parent
union was removed as defendant. (PageID 228-29.)

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Local Union 2-2000 v. Coca-Cola Refreshments USA, Inc.

we held that it was closer to a breach of contract action: “[T]he issues in Kraftco boiled down to

what the contract said and whether the employer discharged its duties under it.” Id. (citing Kraftco,

799 F.2d at 1108). The court, therefore, held that the state statute of limitations should be applied.

Id.


       Finally, Cummings examined two non-hybrid cases where we invoked the “closely

circumscribed exception” of DelCostello to hold that the § 10(b) limitations period applied to claims

brought under the LMRA. In McCreedy v. Local 971, UAW, 809 F.2d 1232 (6th Cir. 1987),

involving an action seeking to compel an employer to submit to arbitration, we held that “an action

to compel arbitration is not readily analogous to a traditional breach of contract suit where damages

are sought.” Id. at 1238. Such an action, which “seeks only to enforce the grievance and arbitration

procedures” under the CBA is, like an employee’s unfair representation claim, “a creature of labor

law.” Id. The second case, Woosley v. Avco Corp., 944 F.2d 313 (6th Cir. 1991), addressed the

claims of individual employees to entitlement to a particular job under a CBA; we applied the §

10(b) time period because the case involved “day-to-day employment and grievance issues” and

“collective bargaining processes [that] might be disturbed.” Id. at 318.


       Armed with this wealth of case law, the Cummings court applied a three-element test adapted

from the Supreme Court’s decision in DelCostello, looking at (1) whether federal law clearly

provides a closer analogy than available state statutes, (2) whether the importation of state law

would frustrate or interfere with the implementation of national policies, and (3) the “practicalities

of litigation.” Cummings, 36 F.3d at 506. The court found that the union’s claim bore a “strong

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Local Union 2-2000 v. Coca-Cola Refreshments USA, Inc.

family resemblance” to an unfair labor practice charge because the union filed such a charge with

the NLRB concerning the same employer conduct at issue in the complaint. Id. The court further

found that, because the claim rested on the conduct of collective bargaining between the parties and

federal law favors collective bargaining, application of the state statutes would frustrate or interfere

with federal policies. Id. The court also emphasized that, under our precedents, application of the

§10(b) statute of limitations is appropriate where a § 301 suit relates to entitlement to employment.

Id. at 507. Finally, because the union was a sophisticated claimant, it would work “no unfairness

against such a party to impose a six-month time limit.” Id. Consequently, the court concluded that

the practicalities of litigation did not favor the use of a longer state limitations period. Id.


        Coca-Cola argues that, like Cummings, the union in this case filed an unfair labor practices

complaint with the NLRB regarding the same subject matter, and this case, like Cummings, rests

in large part “on the conduct of collective bargaining between the parties.” Id. at 506. These

similarities are superficial, however, in contrast to what matters most: the nature of the claim and

whether it is more closely analogous to a state law breach of contract or a federal labor law claim.


        The unions’ amended complaint does not assert that Coca-Cola engaged in unfair dealings

in the aftermath of the CBA negotiations. Instead, the unions claim that the terms of the 2009 CBA

obligated Coca-Cola to implement a 2% wage increase on October 1, 2010 and a 3% wage increase

on October 1, 2011, and that Coca-Cola, by repudiating the terms of the agreement, was liable for

damages for breach of contract. Thus the sole claim in this case is most analogous to Hoosier,

Kraftco, and a state law claim for breach of contract. Hoosier addressed a claim that the employer

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Local Union 2-2000 v. Coca-Cola Refreshments USA, Inc.

breached a CBA by terminating the employment of employees without paying them accumulated

vacation pay as provided in the agreement. 383 U.S. at 698. Kraftco dealt with a union’s failure

to make payments into a pension plan as provided in a CBA. 799 F.2d at 1100. The unions’ very

similar claim here is that Coca-Cola breached the CBA by failing to provide wage increases at the

appropriate time.


        The local union’s filing of an unfair labor practice charge and initial filing a hybrid complaint

suing the parent union as well as Coca-Cola does not make this an appeal of a hybrid case. The en

banc court’s reasoning in Kraftco supports this conclusion. Here, as in Kraftco, the amended

complaint “did not allege a breach of the duty of fair representation . . . .” Id. at 1106. The duty of

fair representation “has primarily been associated with contract negotiation and the enforcement of

that contract through grievance processing.” Id. (quoting NLRB v. Local 299, Int’l B’hood of

Teamsters, 782 F.2d 46, 50 (6th Cir. 1986)) (internal quotation marks omitted). That duty is

“implicated only when an individual or group is treated differently by a union than another

individual, group, or the collective.” Id. (quoting Local 299, 782 F.2d at 51-52) (internal quotation

marks and alterations omitted). No allegations in the second amended complaint implicate this duty,

so applying the Michigan six-year limitations period will not frustrate or interfere with the

implementation of federal labor law policies. See Cummings, 36 F.3d at 506. Furthermore, as all

the parties are sophisticated litigants, the “practicalities of litigation” do not favor the choice of one

statute of limitations over the other. See id. at 507.




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Local Union 2-2000 v. Coca-Cola Refreshments USA, Inc.

       Accordingly, this is a breach of contract claim governed by Michigan’s six-year statute of

limitations. Because the CBA took effect on September 30, 2009 and the local union filed suit on

March 23, 2011, the action was timely filed.


                                                 B.


       We now turn to the merits question of whether the district court erred when it reformed the

contract under the doctrine of mutual mistake and granted summary judgment to the unions. The

unions argue that the CBA unambiguously provided for effective dates for the wage increases of

October 1, 2010 and October 1, 2011 in its “Year 1,” “Year 2, ” “Year 3” terminology. They

contend that a wage freeze went into effect on the effective date of the agreement and lasted for the

entire “Year 1” of the three-year agreement term. Accordingly, the two increases were intended by

the parties to go into effect on day one of “Year 2 ” and “Year 3,” respectively. The unions assert

that the CBA was—in contrast—explicit where the parties intended mid-contract year effective

dates, as they did with the fringe benefits, and that lack of specificity on this issue in the TA

supports the union’s common-sense reading of the contract. The unions conclude that Coca-Cola

should not be allowed to profit from their own mistake in the drafting of the agreement and that the

court should reform the agreement to reflect the intent of the parties.


       Coca-Cola counters that the language of the final, signed agreement, which includes the

company-drafted Appendix A, unambiguously provides for March wage increase dates and that,

without clear and convincing evidence of mutual mistake, this language must govern the contractual



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Local Union 2-2000 v. Coca-Cola Refreshments USA, Inc.

relations of the parties. The company argues that because the four corners of the properly executed

contract unambiguously provide for March dates, our inquiry should proceed no further.


        While parol evidence is inadmissible to show additional terms, such evidence is always

admissible to show that there has been a mistake in reducing the agreement of the parties to writing

as grounds for seeking reformation of a contract. Armistead v. Vernitron Corp., 944 F.2d 1287,

1295 (6th Cir. 1991); RESTATEMENT (SECOND) OF CONTRACTS §214(e) (1981). Additionally, the

courts have the power to reform a contract to make it conform to the agreement the parties actually

made. Casey v. Auto Owners Ins. Co., 729 N.W.2d 277, 284-85 (Mich. Ct. App. 2006). To obtain

reformation of a contract, the plaintiff must prove a mutual mistake of fact by clear and convincing

evidence. Id. The showing of a unilateral mistake is not sufficient to obtain reformation. Id.

Because the plaintiffs have shown that the parent union did not closely review the amended

Appendix A we may look to the agreement ratified by the union in order to determine that actual

intent of the parties.


        The only factual support for Coca-Cola’s position is that the prior agreement commenced

in March of 2006, and, thus, its wage increases took effect in March of each relevant year. This

argument is a double-edged sword, however, for another, and perhaps more, sensible interpretation

of the 2006 CBA’s relevance is that the initial 0% wage increase of the 2009 CBA should take

effect, just as it did in 2006, on the effective date of the agreement, with successive increases taking

effect on the respective anniversaries of the agreement.




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Local Union 2-2000 v. Coca-Cola Refreshments USA, Inc.

       As the unions contend, the “Year 1,” “Year 2, ” “Year 3” language of the agreement, the

specific dates provided for other elements of the CBA, and the lack of evidence that the March dates

were ever contemplated by the negotiating parties support this interpretation. These facts further

support the conclusion that this dispute was not a matter of the unions simply misunderstanding what

they were bargaining for but was rather a mutual mistake of the parties: a mistake on the part of

Coca-Cola in failing to embody in the writing the actual agreement reached and a mistake on the part

of the unions in not identifying this error before executing the agreement. When “terms are used

in or omitted from the instrument which give it a legal effect not intended by the parties, . . . equity

will always grant relief unless barred on some other ground, by correcting the mistake so as to

produce a conformity of the instrument to the agreement.” Johnson Family Ltd. P'ship v. White Pine

Wireless, LLC, 761 N.W.2d 353, 363 (Mich. Ct. App. 2008) (quoting Schmalzriedt v. Titsworth, 9

N.W.2d 24, 28 (Mich. 1943)) (internal quotation marks omitted).


                                                  III.


       The district court thus correctly determined that “[t]he record, viewed as a whole, . . .

indicates that the parties intended to establish wage increases concomitant with the CBA

anniversaries, and that the resulting document does not adequately reflect their agreement.”

Accordingly, we AFFIRM the district court’s grant of summary judgment.




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Local Union 2-2000 v. Coca-Cola Refreshments USA, Inc.

S. THOMAS ANDERSON, District Judge, concurring in part and dissenting in part,


          While I concur with the majority’s opinion on the statute of limitations issue, I write

separately to state my disagreement with the majority’s holding on the contract issues. There is

simply a lack of clear and convincing evidence that a mutual mistake occurred when Coca-Cola

reduced the parties’ 2009 Collective Bargaining Agreement (“CBA”) to writing. As to the issue of

whether the parties agreed to annual wage increases in October as opposed to the March dates

included in the final signed CBA, the evidence supporting each party’s position on the wage

increases was fairly balanced. Accordingly, the union was not entitled to reformation of the

contract. Because the union was not entitled to judgment as a matter of law and Coca-Cola was, I

would reverse the judgment of the district court on the contract reformation and breach of contract

issues.


          Under Michigan law, a party seeking reformation of a contract on the basis of mutual mistake

must prove the mutual mistake by clear and convincing evidence. Casey v. Auto–Owners Ins. Co.,

729 N.W.2d 277, 285 (Mich. Ct. App. 2006). As the party seeking reformation, the union has the

burden of proof. Theophelis v. Lansing Gen. Hosp., 424 N.W.2d 478, 486–87 (Mich. 1988) (“[T]he

burden of proof is upon one seeking reformation of a written instrument.”). The Michigan Supreme

Court has described the clear and convincing evidence standard as “the most demanding standard

applied in civil cases.” In re Martin, 538 N.W.2d 399, 410 (Mich. 1995) (citation omitted). Clear

and convincing evidence is that proof which “produce[s] in the mind of the trier of fact a firm belief

or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and

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weighty and convincing as to enable [the factfinder] to come to a clear conviction, without

hesitancy, of the truth of the precise facts in issue.” Id. (citation omitted). Put another way, evidence

of mutual mistake must be so “clear and satisfactory, so as to establish the fact beyond cavil.”

Crane v. Smith, 220 N.W. 750, 751 (Mich. 1928) (citations omitted). A court of equity should not

reform a written instrument “upon a probability, nor even upon a mere preponderance of evidence,

but only upon a certainty of the error.” Holda v. Glick, 20 N.W.2d 248, 251 (Mich. 1945) (citing

Restatement of the Law of Contracts, § 504) (other citations omitted).

        Based on the record before the district court, the union failed to prove by clear and

convincing evidence that the parties actually agreed to annual wage increases on the October

anniversary date of the 2009 CBA. The district court began by correctly finding that Appendix A’s

use of the terms “Year 1,” “Year 2,” and “Year 3” was ambiguous, stating “[t]he unions’ October

interpretation is as plausible as Coca-Cola’s March interpretation.” See Local Union 2-2000 v.

Coca-Cola Refreshments USA, Inc., 906 F. Supp. 2d 731, 742 (W.D. Mich. 2012). And yet the

district court went on to hold that the Tentative Settlement Agreement (“TA”) containing the same

ambiguous language constituted “clear and convincing evidence that both sides reached an

agreement that the percentage wage increases would likewise occur on the anniversaries of the 2009

CBA.” Id. at 743 (“[T]he TA in this case, viewed in its larger context, is clear and convincing

evidence that both sides reached an agreement that the percentage wage increases would likewise

occur on the anniversaries of the 2009 CBA.”).




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       The district court based its conclusion on two features of the TA. First, the three-year CBA

ran from October 1, 2009, through September 30, 2012, suggesting that the annual wage increases

in “Year 1, Year 2, Year 3” took effect on the October anniversary dates of the 2009 CBA. Id.

Second, other fringe benefit increases took effect on non-anniversary dates listed in the 2009 CBA,

“indicat[ing] a different treatment of the wages in the parties’ agreement” and implying that the

wage increases coincided with the anniversary date. Id.


       These facts are certainly relevant to divining the meaning of the TA and tend to support the

union’s position. However, they do not constitute clear and convincing evidence of a mutual

mistake or demonstrate “a certainty of the error” in the final written contract. Holda, 20 N.W.2d at

251. Each parties’ interpretation of the ambiguous terms “Year 1, Year 2, and Year 3” is equally

plausible and finds support in the record. Although the evidence cited by the district court is

persuasive (and perhaps even preponderates), the finding of mutual mistake is simply not clear and

convincing in light of other record evidence, which the district court failed to consider.


       For instance, the previous CBA provided for annual wage increases in March. Union

members had just received an annual raise in March 2009 and, generally speaking, were not due for

another annual raise until March 2010. The TA unambiguously stated that “[a]ll terms and

conditions of the [2006 CBA] shall remain in full force and effect except as modified herein.”

(PageID 489.) The TA supports Coca-Cola’s position then that annual wage increases in the 2009

CBA would continue to take effect in March just as they did under the 2006 CBA. The provision

also casts doubt on the union’s position about the October dates for the wage increases.

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       The union argues that if “Year 1” commenced in March 2010, the “Year 1” wage freeze was

to last from March 2010 to March 2011. As a result, bargaining unit members would actually go

eighteen months from October 2009 until March 2011 without a raise. This argument ignores the

fact that members had just received an annual bump in March 2009, six months before the 2009

CBA took effect, and would not expect another annual raise until March 2010. Thus, assuming

March dates for wage increases with “Year 1” running from March 2010 through March 2011,

members would, in fact, experience a twelve-month wage freeze. The union’s position also ignores

other evidence that Coca-Cola agreed to make two special payments to union members, a $500

“ratification bonus” in October 2009 and a $500 “lump sum payment” in January 2010, as a

concession for the one-year wage freeze. See Dietrich Decl. ¶ 8, PageID 1060 (“Coca-Cola

proposed the [payments] . . . to partially balance Coca-Cola’s proposal for the ‘Year 1’ wage

freeze . . . .”). Therefore, there is evidence from the TA to support Coca-Cola’s position about the

March dates for wage increases.


       Furthermore, the 2009 CBA included dates certain for increases in fringe benefits, but the

district court failed to consider evidence showing that the TA simply carried over the same dates

from the 2006 CBA. E.g. 2006 CBA, PageID # 449 (providing for annual increases, which would

take effect in May, in Coca-Cola’s match for employee 401k contributions); Local Union 2-2000,

906 F. Supp. 2d at 734–35 (noting that the 2009 CBA provided for annual 401k matching increases

in May as well). This is hardly surprising in light of the parties’ agreement that the terms of the

2009 CBA would default to the terms of the 2006 CBA “except as modified.” The fact then that the



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parties agreed in the 2009 CBA to annual benefits increases and on the same dates provided in the

2006 CBA support Coca-Cola’s position (as much as the union’s) and suggests that the parties

assumed wage and benefit increases under the 2009 CBA would continue to occur annually and on

the same dates provided in the 2006 CBA.


       The district court also placed weight on the three-year duration of the 2009 CBA. Id. at 743

(“The TA provided that the ‘agreement duration’ was ‘October 1, 2009—September 30, 2012.”).

This aspect of the TA is arguably the most compelling evidence for the union’s position that wage

increases were due on the October anniversary dates of the 2009 CBA. Even so, whether wage

increases were due in October or the following March, wage increases would still take effect during

“Year 1” or “Year 2” or “Year 3” of the CBA. For example, if “Year 1” ran from October 2009

through October 2010, then a wage increase due in March 2010 would take effect during “Year 1.”

The union retorts that the notion of a six-month “Year 1” or an eighteen-month “Year 3” is

incomprehensible. Union’s Br. 39 (“In Wonderland, a ‘year’ may last 18 months on some occasions

and six months on others, depending on Humpty Dumpty’s mood.”).


       However, the union’s own course of dealing undercuts its argument on this point. During

the negotiations, the union made the initial offer on wage increases, proposing that the new CBA

run from October 1, 2009, through March 27, 2013, and that bargaining unit members receive a 3%

raise in “Year 1,” a 3.5% raise in “Year 2,” and a 4% raise in “Year 3.” (PageID 458.)1 Assuming


       1
        Similarly, the 2006 CBA ran from March 25, 2006, to September 30, 2009, a term of three
years and six months. The fact that the parties’ previous CBA included only a portion of a year

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Local Union 2-2000 v. Coca-Cola Refreshments USA, Inc.

that “Year 1” began in October 2009, the union’s offer of a three and a half-year term obviously

meant that “Year 3” would run from October 2011 through March 2013, a span of eighteen months.

Thus, the union itself proposed the very Carrollian treatment for “the word ‘year’ as sometimes

meaning 18 months” that it so colorfully derides in this appeal. See also Union’s Br. 37 (“The

parties never agreed to treat the word ‘year’ as sometimes meaning 18 months and sometimes six

months. The parties never agreed that contract years should run inconsistently, from October 2009

until mid-March 2011 for ‘Year 1,’ from mid-March 2011 until mid-March 2012 for ‘Year 2,’ and

from mid-March 2012 through September 2012 for ‘Year 3.’”).


       The union’s bargaining also runs counter to the union’s position on appeal that the only

possible, intended meaning of “Year 1, Year 2, Year 3” was the three-year term of the 2009 CBA.

The union introduced the “Year 1, Year 2, Year 3” concept into the negotiations on September 28,

2009, the parties’ last day at the bargaining table. Local Union 2-2000, 906 F. Supp. 2d at 735. The

parties signed the TA only hours after the union first proposed the ambiguous “Year 1, Year 2, Year

3” language and did so in such a way that “Year 3” actually meant eighteen months, and not twelve.

This is hardly clear and convincing proof that the parties could only have understood the TA’s “Year

1, Year 2, Year 3” to be literal, twelve-month years.


       Perhaps more importantly, the union’s initial offer arguably assumed March wage increases,

with the 3% raise in “Year 1” taking effect in March 2010, the 3.5% raise in “Year 2” in March


further undercuts the inference that “Year 1,” “Year 2,” and “Year 3” clearly and necessarily refer
to full twelve-month periods and not some fraction of a year covered by the CBA.

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No. 12-2630
Local Union 2-2000 v. Coca-Cola Refreshments USA, Inc.

2011, the 4.0% raise in “Year 3” in March 2012, and the CBA expiring in March 2013. Otherwise,

the union’s proposed “Year 1, Year 2, Year 3” language makes less sense. If the union was

bargaining for October wage increases, as it now claims, the 3% raise in “Year 1” would take effect

October 2009, the 3.5% raise in October 2010, and the final 4% raise in October 2011. Bargaining

unit members would then go from October 2011 through the expiration of the CBA in March 2013

without a raise. In other words, the union was proposing the ambiguous “Year 1” approach to the

wage increases under terms that would leave its membership without any raise for the final eighteen

months of a forty-two month CBA. Therefore, the union’s initial offer with the “Year 1, Year 2,

Year 3” language plausibly shows that the union assumed wage increases in March and calls into

doubt the district court’s conclusion that the TA’s use of “Year 1, Year 2, Year 3” constituted clear

and convincing evidence of October wage increases.


       In sum, none of the features of the TA cited by the district court amount to clear and

convincing evidence of a mutual mistake in the final signed writing. I do not mean to say that the

evidence clearly proves that the parties reached a final agreement for March wages increases.

Indeed the parties’ final signed writing suffices to prove the March dates. The district court

highlighted the lack of evidence showing that the parties ever agreed to the March dates for the wage

increases. Local Union 2-2000, 906 F. Supp. 2d at 744. However, because the union seeks

reformation of a signed contract, the relevant inquiry is whether there is clear and convincing

evidence of an agreement on the October dates. As the party seeking reformation, it is the union’s

burden to prove that the parties actually agreed on the October dates for annual wage increases, and



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Local Union 2-2000 v. Coca-Cola Refreshments USA, Inc.

not Coca-Cola’s to prove the March dates. Theophelis, 424 N.W.2d at 486–87. For the reasons

already discussed, the union failed to carry its burden to show a mutual mistake in the final signed

writing.


       Having concluded that the union failed to show by clear and convincing evidence that the

March dates were a mistake, the district court’s reformation of the CBA should be reversed.

Without proof of an agreement as to the October dates, reformation was improper. Hunt v. Triplex

Safety Glass Co. of N. Am., 60 F.2d 92, 94 (6th Cir. 1932) (“Before a contract may be reformed to

express the true agreement of the parties, they must have so agreed, and we fail to find sufficiently

cogent proof of such agreement.) (emphasis added and internal citation omitted); Casey, 729 N.W.2d

at 284–85 (“A court of equity has the authority to reform a contract to make it conform to the

agreement actually made by the parties to the contract.”) (emphasis added).2


       Notably the district court reached the reformation issue on the parties’ cross-motions for

summary judgment. In order to prevail at summary judgment, the union had the burden to prove a

mutual mistake in the final signed writing by clear and convincing evidence, Michigan’s “most

demanding standard” in civil cases, and to do so in such a way that reasonable minds could not

differ. In re Martin, 538 N.W.2d at 410. In other words, the union had a doubly-demanding burden




       2
        Without proof of an actual agreement on dates certain for the annual wage increases, the
TA’s default term, i.e. that “[a]ll terms and conditions of the [2006 CBA] shall remain in full force
and effect,” would arguably control.

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No. 12-2630
Local Union 2-2000 v. Coca-Cola Refreshments USA, Inc.

to make its case at summary judgment. When viewed from this perspective, the district court

misapplied the Rule 56 standard by granting the union judgment as a matter of law.


       Federal Rule of Civil Procedure 56(a) provides that a party is entitled to summary judgment

if the moving party “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); see Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986). The precise issue presented to the district court in the union’s Rule 56 motion

was whether the union could “prove by clear and convincing evidence to the degree that no rational

finder of fact could conclude otherwise” that a mutual mistake had occurred where the final writing

included March dates for annual wage increases. Hanover Ins. Co. v. Am. Eng’g Co., 33 F.3d 727,

730 (6th Cir. 1994) (applying Kentucky law and reversing the reformation of a contract based on

mutual mistake at summary judgment). Viewing the evidence in the light most favorable to Coca-

Cola, as the district court was required to do in deciding the union’s Rule 56 motion, the union failed

to carry its burden. The evidence before the district court was insufficient to grant the union’s

request for reformation because the union did not show a mutual mistake “by clear and convincing

evidence to the degree that no rational finder of fact could conclude otherwise,” an essential element

of the union’s reformation claim on which it alone bore the burden of proof. Therefore, the district

court misapplied the summary judgment standard and erroneously granted the union judgment as

a matter of law on the reformation issue.


       What is more, the district court also failed to apply the correct standard in denying Coca-

Cola’s Rule 56 motion. We have held that “any heightened burden of proof required by [governing]

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No. 12-2630
Local Union 2-2000 v. Coca-Cola Refreshments USA, Inc.

substantive law for an element of the [non-moving party]’s case, such as proof by clear and

convincing evidence, must be satisfied by the [non-moving party]” in order to survive summary

judgment. Beal ex rel. Putnam v. Walgreen Co., 408 F. App’x 898, 902 (6th Cir. 2010) (quoting

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989)). In other words, the non-

moving party must “show in opposition to the motion for summary judgment that [it] can produce

evidence which, if believed, will meet the higher standard.” Inge v. Rock Fin. Corp., 388 F.3d 930,

938 (6th Cir. 2004).


       Not only was the union not entitled to judgment as a matter of law, summary judgment in

favor of Coca-Cola was proper because the union did not carry its “higher” burden. Even under the

most favorable view of the proof, the union failed to adduce clear and convincing evidence of

mutual mistake to support its plea for reformation. Rather the parties have essentially litigated to

a draw. Instead of evaluating whether the union could meet its “higher” burden at summary

judgment, the district court apparently shifted the burden to Coca-Cola to produce evidence in

support of its claim about the March dates for wage increases. See Local Union 2-2000, 906 F.

Supp. 2d at 744 (finding that Coca-Cola “fails to provide evidence of agreement to the contractual

language, other than to proffer the subsequent statements of Coca-Cola’s negotiators that Coca-Cola

did not consider the March dates a ‘mistake’ . . . .”).3 The district court improperly allocated the


       3
       The majority takes a similar approach, holding Coca-Cola to the burden to prove the
absence of mistake as opposed to requiring the union to prove mutual mistake by clear and
convincing evidence. In fact, the majority never states that the union adduced clear and convincing
evidence of mutual mistake or that it did so “to the degree that no rational finder of fact could
conclude otherwise.” Hanover Ins. Co., 33 F.3d at 730.

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Local Union 2-2000 v. Coca-Cola Refreshments USA, Inc.

burden to Coca-Cola and then weighed Coca-Cola’s failure to prove the March dates in arriving at

its conclusion to reform the contract. The district court should have focused on whether the union,

as the party seeking reformation, had adduced clear and convincing evidence of the October dates,

and not faulted Coca-Cola for failing to prove up the March dates in the final writing. In the absence

of clear and convincing evidence of a mutual mistake, Coca-Cola was entitled to judgment as a

matter of law on the reformation claim.


          Both parties present cogent positions, which is exactly the problem with the district court’s

decision to reform the 2009 CBA. The roughly equal strength of both arguments highlights the fact

that the union did not carry its burden to establish a mutual mistake in the final writing by clear and

convincing evidence. Rather than being “weighty and convincing” proof of a mutual mistake, the

TA does not clearly and convincingly point to October dates for the wage increases in the 2009

CBA. In re Martin, 538 N.W.2d at 410. The union has merely shown that the parties’ TA provided

for wage increases in “Year 1, Year 2, and Year 3.” This proof is not clear and convincing evidence

that the parties had actually agreed on October wage increases. Hunt, 60 F.2d at 94; Casey, 729

N.W.2d at 284–85. Therefore, I would reverse the judgment of the district court on the contract

issues.




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