RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0304p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

EQUITABLE RESOURCES, INC.,

 Plaintiff-Appellant,

v.

UNITED STEEL, PAPER AND FORESTRY,

RUBBER, MANUFACTURING, ENERGY, ALLIED 

INDUSTRIAL AND SERVICE WORKERS

INTERNATIONAL UNION, AFL-CIO/CLC;

LOCAL 8-512,

 Defendants-Appellees.

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No. 08-6444

Appeal from the United States District Court

for the Eastern District of Kentucky at Pikeville.

No. 08-00151—Amul R. Thapar, District Judge.

Argued: March 11, 2010

Decided and Filed: September 16, 2010 

Before: KENNEDY, MOORE, and SUTTON, Circuit Judges.

_________________

COUNSEL

ARGUED: J. Richard Hammett, BAKER & McKENZIE LLP, Houston, Texas, for

Appellant. Daniel M. Kovalik, UNITED STEELWORKERS OF AMERICA,

Pittsburgh, Pennsylvania, for Appellees. ON BRIEF: J. Richard Hammett, BAKER &

McKENZIE LLP, Houston, Texas, Jaron P. Blandford, McBRAYER, McGINNIS,

LESLIE & KIRKLAND, PLLC, Lexington, Kentucky, for Appellant. Daniel M.

Kovalik, UNITED STEELWORKERS OF AMERICA, Pittsburgh, Pennsylvania,

Adrienne A. Berry, SEGAL, LINDSAY & JANES, PLLC, Louisville, Kentucky, for

Appellees. 

MOORE, J., delivered the opinion of the court, in which SUTTON, J., joined.

KENNEDY, J. (p. 21), delivered a separate concurring opinion.

1
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_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. In this case under § 301 of the

Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C. § 185, Equitable

Resources, Inc. (“Equitable”) challenges the district court’s order enforcing an

arbitration award entered in favor of the United Steel, Paper and Forestry, Rubber,

Manufacturing, Energy, Allied Industrial and Service Workers International Union,

AFL-CIO/CLC and its Local 8-512 (collectively, the “Union”). In early 2008, Equitable

announced its plan to “integrate” the operations and employees of one of its wholly

owned subsidiaries, Kentucky West Virginia Gas Company, L.L.C. (“Kentucky West”)

into two other wholly owned subsidiaries operating in Kentucky. Following

announcement of the integration, in June 2008 the Union filed suit in the United States

District Court for the Eastern District of Kentucky to compel Equitable and Kentucky

West to arbitrate successorship issues under the Union’s then-current collective

bargaining agreement with Kentucky West (the “CBA”). The CBA included a

successorship clause stating that Kentucky West agreed to make any “sale, lease,

transfer, or assignment” of “the operations covered by this Agreement” conditional upon

the successor entity assuming the CBA. The district court dismissed the Union’s action

after Equitable and the Union agreed to arbitrate the successorship issues under the

CBA. Equitable moved forward with its corporate restructuring plan, and, effective July

1, 2008, Kentucky West ceased to exist.

Equitable, purporting to represent Kentucky West’s interests, appeared at the

arbitration. On July 21, 2008, the arbitrator entered an award in favor of the Union that

required Equitable to abide by the CBA until it expired in October 2008 (the “Award”).

The arbitrator concluded as a matter of contract interpretation that the restructuring

triggered the CBA’s successorship clause and reasoned that Equitable could be liable

under the clause for multiple reasons, including Equitable’s status as the entity that
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assumed Kentucky West’s legal obligations after it ceased to exist July 1st, as Kentucky

West’s alter ego, and as the entity that received Kentucky West’s operations after July

1st. Equitable then filed the instant complaint under § 301 of the LMRA to vacate or

modify the Award, alleging multiple defects in the Award. The Union counterclaimed

for enforcement of the Award and filed a cross-motion for summary judgment. The

district court granted summary judgment in favor of the Union, enforcing the Award.

On appeal, Equitable argues that the district court erred in enforcing the Award

because the arbitrator exceeded his authority in ordering Equitable, a non-party to the

CBA, to honor the CBA as the remedy for Kentucky West’s breach of the successorship

clause, which resulted in multiple alleged defects in the Award. Guided by the highly

deferential standard of review for arbitration awards that interpret a collective bargaining

agreement outlined in Michigan Family Resources, Inc. v. Service Employees

International Union, 475 F.3d 746 (6th Cir.) (en banc), cert. denied, 551 U.S. 1132

(2007), we affirm the district court’s order enforcing the Award.

I. FACTS AND PROCEDURE

The Union entered into the CBA with Kentucky West—defined as “a Delaware

limited liability company and subsidiary of Equitable Resources, Inc.”—effective

October 16, 2003 through October 15, 2008. Doc. 8 (Answer), Ex. 1 (CBA at 1, 44).

The CBA includes successorship language in Section 1 of Article II “RECOGNITION”:

The Company agrees that if during the life of this Agreement, it

discontinues operations, sells, leases, transfers or assigns the operations

covered by this Agreement, it shall inform the purchaser, lessee,

transferee or assignees of the exact terms of this Agreement and shall

make the sale, lease, transfer, or assignment conditional upon the

purchaser, lessee, transferee, or assignee, assuming all the obligations of

the Agreement until its expiration date and treating affected employees

of the Bargaining Unit in accordance with the terms of this Agreement.

The Company agrees to provide the Union with written notice when the

transaction is complete and the Agreement is assumed.
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Id. at 2. Article X “GRIEVANCE AND ARBITRATION” dictates the manner for

resolving “any difference . . . between the parties or between any one or more of the

employees and the Company relating to the meaning, application, or violation of any

provisions of this agreement.” Id. at 39. Article X further dictates the “Jurisdiction of

[the] Arbitrator,” stating, “The arbitrator shall have jurisdiction and authority only to

interpret, apply, or determine compliance with the provisions of this agreement, and will

not have authority to add to or detract or alter any provisions of this agreement. The

arbitrator’s decision will be final and binding on both parties.” Id. at 40.

In early 2008, Equitable announced that it was undertaking a “corporate

restructuring” for efficiency purposes that would eliminate Kentucky West and move its

operations and employees to two wholly owned non-union subsidiaries of Equitable,

Equitable Midstream and Equitable Productions (both of which had undergone

operations changes prior to January 1, 2008). Under this plan, Kentucky West would

cease to exist effective July 1, 2008. The Union filed a grievance with Kentucky West

on March 7, 2008, and then an amended grievance on May 16. On May 23, 2008,

Equitable responded to the Union, stating that the grievance was non-arbitrable. The

Union then filed suit in the district court under § 301 of the LMRA, requesting a

preliminary injunction to stay the restructuring and compel arbitration with Kentucky

West so that the Union would be able to arbitrate with Kentucky West or Equitable

without either party being able to argue that arbitration was no longer available under

the CBA. After telephonic conference calls with the district court, the parties agreed to

settle by submitting the case to arbitration, and the Union withdrew its suit.

Arbitration was held on July 8, 2008. As stated in the Award, the question

presented to the arbitrator was: “Did the Company [Kentucky West] violate the

collective bargaining agreement when it refused to secure an assurance from its parent

company, Equitable Resources, Inc.[,] that the agreement would be honored after the

Company’s assets were transferred to a new entity? If so what shall the remedy be?”

Doc. 8 (Answer), Ex. 5 (Award at 2). The arbitrator found that the predecessor language

to Article II, Section 1 that was included following negotiations in 2000 made it “clear
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and unambiguous on its face [that it] . . . applies to any such wholesale transfer of work”

and that “[o]n its face this applies to both external and internal transfers.” Id. at 11. The

arbitrator concluded that “it was clear that insofar as this contract was concerned, the

prospect of th[is] very sort of internal transfer was contemplated by the terms of Article

II. The clear understanding was that this was a condition precedent to this transfer and

that Equitable understood and agreed to this as well.” Id. at 19.

The arbitrator found that “[i]t is of some significance that while [Kentucky West]

is referenced in the preamble as the ‘Company’ it is also identified as a ‘subsidiary of

Equitable Resources, Inc.’” Id. at 12. The arbitrator found that

What was clear was that Equitable representatives sat at the

negotiating table, participated in the negotiations actively and in fact

were in reality the ones making most if not all of the decisions regarding

the substantive terms of the labor agreement in the bargaining leading up

to the current labor agreement.

What is also clear, and this too was not controverted by the

Company at the hearing, is that at least for purposes of these

negotiations, the two Companies acted very much as though they were

one. Certainly as a factual determination, it was quite clear that

Equitable knew and agreed to the terms of the labor agreement and it was

based on that expression of agreement that the Union signed the current

labor agreement.

Id. at 18–19 (citation omitted). The arbitrator reviewed and distinguished prior

arbitrations between Kentucky West and the Union and concluded that none dictated the

outcome here because none had dealt with a similar situation that fell squarely within

Article II, Section 1 as a transfer of the entire operations of Kentucky West to another

entity. Id. at 12–18.

The arbitrator supported his ability to arbitrate the dispute after Kentucky West

ceased to exist under John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964), NLRB

v. Burns International Security Services, Inc., 406 U.S. 272 (1972), and Howard Johnson

v. Detroit Joint Executive Board HERE, 417 U.S. 249 (1974). Id. at 20–25. In his

discussion, the arbitrator in part premised his ability to bind Equitable to the CBA on the

theory that Equitable was the successor entity and had agreed to be bound by the CBA
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during its negotiations—“Here it was clear that Equitable directed and was responsible

for the merger with [Kentucky West] and that its representatives sat at the bargaining

table and negotiated the successorship clause which by its very terms purports to bind

Equitable as a condition precedent to the merger.” Id. at 22, 35 (referring to Equitable

“as the successor employer to [Kentucky West]”). The arbitrator also found that

Equitable was Kentucky West’s alter ego—“it is determined that even though the two

corporations are legally separate, Equitable was in fact, for purposes of the negotiations

leading to the CBA and for this determination the alter ego of [Kentucky West] and was

therefore expressly bound by the terms of the successorship clause found at Article II,

section 1 of the parties’ labor agreement.” Id. at 29. The arbitrator found “fairly

transparent” Equitable’s “argument that the ‘parent’ company really did this is [sic] and

therefore cannot be bound by the agreements its wholly owned subsidiary agreed to in

good faith at the bargaining table.” Id. at 35.

The arbitrator ultimately concluded that

The terms [of Article II, Section 1] apply to any transferee, such as a

subsidiary of Equitable and it frankly makes no difference what entity the

assets are sold to or merged with. The contract is hereby interpreted to

apply as a condition precedent to any such transfer including one to

another Equitable subsidiary.

. . . .

The only logical reading of the language of Article II section 1 is that

even if the parent made the decision to require [Kentucky West] to

transfer it[s] assets, either inside or outside of the Equitable stable of

companies, the conditions precedent to such a transfer would be for

[Kentucky West] to assure that the terms of the agreement were honored.

. . . This again is a matter of contract and the clear terms requiring such

assurance prior to the transfer.

Accordingly, for the reasons stated herein, it is determined that

the plain and unambiguous terms of the agreement at Article II section

1 required Equitable, as the successor employer to [Kentucky West], to

honor all of the terms and conditions of the labor agreement between

[Kentucky West] and the Union herein until its expiration on October 15,

2008 for the former [Kentucky West] employees covered under that

agreement.

Id. at 34–35.
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1

The district court entered a subsequent order remanding the matter to the arbitrator for

clarification of the CBA’s expiration date pursuant to the Union’s timely Rule 59(e) motion. The district

court then ruled that its summary-judgment order was a final and appealable order not displaced by this

later remand order, and Equitable filed its notice of appeal from the summary-judgment order. (The

propriety of the remand order is not before us on appeal.) We have jurisdiction to review the summaryjudgment order. M & C Corp. v. Erwin Behr GmbH & Co., KG, 326 F.3d 772, 779–81 (6th Cir. 2003).

Equitable filed the instant suit in the district court on August 1, 2008, seeking to

vacate the Award. The Union counterclaimed for enforcement and filed a motion for

summary judgment; Equitable filed a cross-motion for summary judgment. The district

court granted summary judgment to the Union and affirmed the Award “[f]or the reasons

stated on the record and for those provided by the [Union] in their briefs.” Doc. 25 at

1 (Dist. Ct. Minute Entry & Order). Equitable timely appeals from the district court’s

summary-judgment order.1

II. ANALYSIS

Equitable claims that the Award is defective for four separate reasons. First,

Equitable asserts that the arbitrator acted outside of his authority by imposing the CBA

on non-parties. Second, Equitable asserts that the arbitrator necessarily resolved a labor

representation dispute not committed to arbitration. Third, Equitable argues that the

remedy the Award dictates will violate public policy in implementation. And finally,

Equitable contends that the arbitrator “dispensed his own brand of industrial justice.”

We will address, and reject, each of Equitable’s contentions in turn.

A. Standard of Review

“This [c]ourt reviews a district court’s grant of summary judgment in a labor

arbitration dispute de novo,” applying the same standard of review that we employ in

other summary judgment cases. Totes Isotoner Corp. v. Int’l Chem. Workers Union

Council/UFCW Local 664C, 532 F.3d 405, 410 (6th Cir. 2008). However, we afford

great deference to the arbitrator’s decision:

In an appeal from an arbitrator’s decision interpreting a collective

bargaining agreement, our review is confined to ascertaining whether the

arbitrator erred. In doing so, we apply the highly deferential standard of
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Michigan Family Resources and uphold the arbitrator’s decision so long

as she was “arguably construing or applying the contract” and was not

disqualified by fraud or a conflict of interest.

Nance v. Goodyear Tire & Rubber Co., 527 F.3d 539, 551 (6th Cir. 2008) (quoting

Mich. Family Res., Inc. v. Serv. Employees Int’l Union, 475 F.3d 746, 753 (6th Cir.) (en

banc), cert. denied, 551 U.S. 1132 (2007)), cert. denied, 129 S. Ct. 1319 (2009). We

must affirm the arbitrator’s decision even if we believe that “‘the arbitrator made

“serious,” “improvident” or “silly” errors in resolving the merits of the dispute,’” which

“allow[s us] to vacate ‘only the most egregious [arbitral] awards.’” Id. at 552 (quoting

Mich. Family Res., 475 F.3d at 753) (second alteration in original). For disputes

required to be arbitrated under a collective bargaining agreement, “the underlying

‘question of contract interpretation [is] for the arbitrator.’” Mich. Family Res., 475 F.3d

at 750 (quoting United Steelworkers v. Am. Mfg. Co., 363 U.S. 564, 568 (1960)).

Keeping in mind our very “‘limited role’ when the losing party to an arbitration seeks

judicial intervention,’” id. at 752 (quoting United Paperworkers Int’l Union v. Misco,

Inc., 484 U.S. 29, 36 (1987)), our scope of review is confined to answering three

questions related to “procedural aberration”:

Did the arbitrator act “outside his authority” by resolving a dispute not

committed to arbitration? Did the arbitrator commit fraud, have a

conflict of interest or otherwise act dishonestly in issuing the award?

And in resolving any legal or factual disputes in the case, was the

arbitrator “arguably construing or applying the contract”?

Id. at 753. “[W]here it is contemplated that the arbitrator will determine remedies for

contract violations that he finds, courts have no authority to disagree with his honest

judgment in that respect.” Misco, 484 U.S. at 38.

B. The Arbitrator Did Not Exceed His Authority by Creating Parties to the CBA

“An arbitrator does not exceed his authority every time he makes an interpretive

error; he exceeds that authority only when the collective bargaining agreement does not

commit the dispute to arbitration.” Mich. Family Res., 475 F.3d at 756. This approach
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2

Before the district court, Equitable maintained that Kentucky West was the entity that was

arbitrating with the Union because Equitable had sent representatives on behalf of Kentucky West, which

ceased to exist as a legal entity after July 1, so that Kentucky West could “fulfill[] its obligation” as the

party to the CBA. Doc. 27 (Summ. J. Tr. at 4–5) (“Equitable was there on behalf of its former subsidiary,

because any contractual, any legal obligations that Kentucky West had under the collective bargaining

agreement, Equitable was standing in the shoes of Kentucky West for that purposes [sic], but it was not

expanding the collective bargaining agreement to cover anyone other than Kentucky West.”).

“‘severely curtail[s] the scope of authority concept’” such that an award should not be

vacated unless “an arbitrator reaches a question not committed to him by the parties.”

Totes Isotoner, 532 F.3d at 414–15 (quoting Truck Drivers Local No. 164 v. Allied

Waste Sys., 512 F.3d 211, 217 (6th Cir. 2008) (internal quotation marks omitted)).

Equitable does not argue that the arbitrator exceeded his authority in finding that

Kentucky West breached the CBA, and indeed conceded this at the summary judgment

hearing. Doc. 27 (Summ. J. Tr. at 14–15). Instead, Equitable argues that the arbitrator

exceeded his authority in ordering Equitable to honor the CBA as the remedy for

Kentucky West’s breach because Equitable is not a party to the CBA. Id. at 61. The

district court rejected this argument, concluding that “[e]ven if wrong in determining the

terms or parties to the contract, that is a legal error” that the court could not fix. Id. at

89. The district court further found that the arbitrator’s factual finding that Equitable

agreed to step into the shoes of Kentucky West for purposes of the arbitration and any

remedy was supported,2

 and that this finding of fact was made as part of the arbitrator’s

contract interpretation. Id. at 89–92. The district court concluded that Equitable put the

question of whether it was bound by the CBA “clearly, squarely before the arbitrator and

he rejected [Equitable’s argument].” Id. at 92.

The Award states the question presented to the arbitrator as: “Did the Company

[Kentucky West] violate the collective bargaining agreement when it refused to secure

an assurance from its parent company, Equitable Resources, Inc.[,] that the agreement

would be honored after the Company’s assets were transferred to a new entity? If so

what shall the remedy be?” Doc. 8 (Answer), Ex. 5 (Award at 2). In its complaint,

Equitable stated that

The primary issues at the arbitration were: (1) whether the core issues

of representation raised by the Union’s grievance render it unarbitrable;
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(2) whether Kentucky West breached Article II Section 1 of the . . . CBA

when Equitable imposed a corporate-wide restructuring; and (3) if a

breach is found, whether there are any monetary damages for the time

period from July 1, 2008 through October 15, 2008.

Doc. 1 (Compl. at 3). The Union stated in its motion for summary judgment that the

parties effectively submitted four questions to the arbitrator:

(1) Whether the dispute was arbitrable? (2) Whether the [CBA] or its

successorship provisions bound the parent company, Equitable and/or its

other non-union subsidiaries, as well as its subsidiary [Kentucky West]?

(3) [W]hether the [CBA] was violated by the transaction at issue? and

(4) [I]f Equitable or [Kentucky West] had violated their obligations under

the agreement, what should the remedy be?

Doc. 14 (Union Summ. J. Mot. at 4–5 (citations omitted)). These statements reflect the

issue statements each party submitted to the arbitrator in their pre-hearing briefs.

We conclude that the arbitrator’s determination that Equitable could be held

liable under the terms of the CBA was a question of contract interpretation that the

parties submitted to the arbitrator. The errors that Equitable alleges the arbitrator made

are errors of law based on findings of fact—that the arbitrator could not have entered the

Award if he had correctly interpreted the contract under precedent. However, the

arbitrator repeatedly stated that his conclusions were grounded in his interpretation of

the contract. See, e.g., Doc. 8 (Answer), Ex. 5 (Award at 26) (“[T]his matter is one

which remains a matter of contract: did Equitable agree to be bound by the terms of the

existing labor agreement between the Union and [Kentucky West].”). The Award “has

all the hallmarks of interpretation[;] [h]e refers to, quotes from and analyzes the pertinent

provisions of the agreement, and at no point does he say anything indicating that he was

doing anything other than trying to reach a good-faith interpretation of the contract.”

Mich. Family Res., 475 F.3d at 754. The arbitrator reasoned that Equitable could be

liable under Article II, Section 1 for multiple reasons, including as the entity that

assumed Kentucky West’s legal obligations after it ceased to exist July 1st, as Kentucky

West’s alter ego, and as the entity that received Kentucky West’s operations after July

1st. Contrary to Equitable’s contention, the arbitrator’s interpretation of the CBA did
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not actually make Equitable or others a “party” to the CBA; the arbitrator determined in

his interpretation of the CBA that the parties intended Article II, Section 1 to be

triggered by the instant transaction and that Equitable, through Kentucky West, was

bound by these terms.

First, the arbitrator interpreted Article II, Section 1 to manifest clearly the intent

of the parties—the Union, Kentucky West, and Equitable, as a participant in the CBA

negotiations and prior negotiations—that any internal or external transfer of Kentucky

West’s operations would require Kentucky West to secure compliance with Article II,

Section 1 as a condition precedent, regardless of who or what was the “successor” entity.

Doc. 8 (Answer), Ex. 5 (Award at 11–12). With this interpretation, the arbitrator

determined that Kentucky West violated the provision when Equitable’s restructuring

took place. The arbitrator then had to determine who was liable for this violation. The

arbitrator addressed and distinguished all of the prior arbitration awards and NLRB

rulings that Equitable cites on appeal. Id. at 12–18 (“It is significant that in none of the

prior awards was the complete and total loss of the unit involved. . . . Here the question

is whether the terms of the agreement must be honored by the successor entity as a

precondition of the sale. As discussed herein, there is no limitation on whether the

successor entity is internal or external[;] the integration cannot occur without the

provisions of Article II being triggered.”); id. at 30–31. Distinguishing “a true arms

length transaction,” the arbitrator specifically found that Equitable “knew and agreed to

the terms of the [CBA],” that the contract contemplated the type of internal transfer at

issue, and that “[t]he clear understanding was that [Article II, Section 1] was a condition

precedent to this transfer and that Equitable understood and agreed to this as well.” Id.

at 19. The arbitrator rejected Equitable’s argument that representational issues precluded

arbitrability, finding support under Supreme Court precedents to arbitrate the dispute

after Kentucky West ceased to exist. Id. at 20–25.

We acknowledge that the arbitrator was influenced by the facts and

circumstances here—“that the successor through its actions and express statements made

by its authorized representatives at the bargaining table in fact did agree to b[e] bound
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3

We note that this is consistent with the Second Circuit’s recognition that a non-signatory to an

agreement to arbitrate may be bound by an arbitral award if the signatory can “‘establish at least one of

the five theories described in Thomson-CSF[, S.A. v. American Arbitration Association, 64 F.3d 773, 776

(2d Cir. 1995)]:’ ‘1) incorporation by reference; 2) assumption; 3) agency; 4) veil-piercing/alter ego; and

5) estoppel.’” Local Union No. 38, Sheet Metal Workers’ Int’l Ass’n v. Custom Air Sys., Inc., 357 F.3d

266, 268 (2d Cir. 2004) (quoting Merrill Lynch Inv. Managers v. Optibase, 337 F.3d 125, 131, 129 (2d

Cir. 2003) (internal quotation marks and alteration omitted)) (vacating and remanding for threshold

by the terms of the predecessor’s labor agreement and did in fact assume those

responsibilities.” Id. at 21, 23–24. But, as the arbitrator concluded,

this case is not governed necessarily by operation of law or by NLRB

precedent, although those considerations are relevant, it is governed by

the terms of the contract agreed to by the parties. The one fact that

comes through this case like a bolt of lightening [sic] is that the parties

negotiated for this very scenario and agreed, with Equitable

representatives a part of that[] agreement, that the terms of the CBA

would be honored. The bottom line on this entire case is that the

collective bargaining agreement survived the merger between [Kentucky

West] and Equitable because the parties, including Equitable, agreed that

it would.

Id. at 25 (first emphasis added). Further, the arbitrator found that

the essential facts in this case demonstrate a very clear intent that

Equitable as the parent company of [Kentucky West] in the first place

and the surviving company for all the [Kentucky West] operations and

all of its employees intended through the operation of the successorship

clause to be bound by it[s] terms for the former [Kentucky West]

employees. This does make it a matter of contractual interpretation and

thus appears to invoke the Courts’ authority to order arbitration under the

contract.

Id. at 27. Even with his finding that Equitable was liable as the parent and legal

successor, the arbitrator proceeded to find that Equitable had both an express and

implied obligation to honor the terms of the prior agreement as the successor based on

the “clear contractual terms” and “the facts” of the negotiations. Id. at 32. Although

Equitable is correct that the arbitrator did point to evidence from the 2000 negotiations,

the arbitrator prefaced his reference to this evidence with language showing that he

understood its limited evidentiary value, stating that it merely supported his earlier

findings interpreting the CBA.3

 Id. at 33–34.
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determination of whether non-signatory was alter ego).

4

Even if we could review the arbitrator’s legal conclusion, we would do so under the “‘more

relaxed, less exacting’ application of the alter ego doctrine [used] ‘[i]n order to effectuate federal labor

policies.’” Yolton v. El Paso Tenn. Pipeline Co., 435 F.3d 571, 587, 586–89 (6th Cir.) (quoting NLRB v.

Fullerton Transfer & Storage Ltd., Inc., 910 F.2d 331, 336 (6th Cir. 1990)) (second alteration in original),

cert. denied, 549 U.S. 1019 (2006). “To determine alter ego status in this situation, courts ask ‘whether

the two enterprises have substantially identical management, business, purpose, operation, equipment,

customers, supervision and ownership.’” Id. at 587 (quoting Fullerton Transfer & Storage Ltd., 910 F.2d

at 336). In Yolton, we noted that “even when a reorganization is supported by legitimate reasons, the

employer may be prevented from avoiding its prior labor obligations.” Id. at 587 n.14; see also Southward

v. S. Cent. Ready Mix Supply Corp., 7 F.3d 487, 493–97 (6th Cir. 1993) (discussing cases regarding alter

ego and successorship).

From our review of the Award, we conclude that the arbitrator was “arguably

construing or applying the contract” in the manner he deemed required to resolve the

dispute the parties placed before him. See Mich. Family Res., 475 F.3d at 753 (internal

quotation marks omitted). Any legal or factual errors that the arbitrator may have

committed related to “alter ego” status or “successor” terminology4 were related to his

contract interpretation and application attempts and did not exceed his authority.

“[W]hen ‘an arbitrator resolves disputes regarding the application of a contract, and no

dishonesty is alleged, the arbitrator’s improvident, even silly, factfinding does not

provide a basis for a reviewing court to refuse to enforce the award.’” Id. at 752

(quoting Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509 (2001)

(internal quotation marks omitted)).

Without considering the concessions that the Union has urged us to accept

regarding Equitable’s representation of Kentucky West before the district court and the

arbitrator, we conclude that the arbitrator did not exceed the scope of his authority in

determining whether Equitable was liable for Kentucky West’s breach under the CBA

once he determined that a breach of the CBA did occur. “[W]hen a contract is

scrutinized for evidence of an intention to arbitrate a particular kind of dispute, national

labor policy requires, within reason, that an interpretation that covers the asserted

dispute be favored.” John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 550 n.4

(1964) (internal quotation marks omitted); id. at 554 (finding that specific arbitration

issues can raise a broader question of the effect of a merger). Further, “[t]he

extraordinary deference given to an arbitrator’s ultimate decision on the merits applies
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equally to an arbitrator’s threshold decision that the parties have indeed submitted a

particular issue for arbitration.” Int’l Ass’n of Machinists & Aerospace Workers v. Tenn.

Valley Auth., 155 F.3d 767, 772 (6th Cir. 1998) (internal quotation marks omitted).

Because it is not “clear” that the arbitrator exceeded the scope of the issue

submitted in determining whether Equitable could be liable for the breach, we cannot

overturn the Award on this basis. Id. This dispute is not one that is without any basis

in the CBA. See Mich. Family Res., 475 F.3d at 753; Dobson Indus., Inc. v. Iron

Workers Local Union No. 25, 237 F. App’x 39, 47 (6th Cir. 2007) (unpublished opinion)

(upholding arbitration award because making the contested determination was “a

reasonable way to determine whether that party is violating that clause” and is “arguably

construing” the contract); Peterbilt Motors Co. v. UAW Int’l Union, 219 F. App’x 434,

436–38 (6th Cir. 2007) (unpublished opinion). The Award represents the arbitrator’s

legal and factual findings under the CBA—“an arbitrator’s award may only be deemed

to have not drawn its essence from the collective bargaining agreement when it conflicts

with express terms of the agreement, imposes additional requirements that are not

expressly provided in the agreement, or cannot be rationally derived from the terms of

the agreement.” Int’l Ass’n, 155 F.3d at 771 (internal quotation marks omitted). Any

ambiguity in the collective bargaining agreement “permitted, indeed required, the

arbitrator to engage in construction of the agreement, which is all we are asked to

determine.” Mich. Family Res., 475 F.3d at 755. Even if we concluded “[t]hat he chose

the wrong path in justifying the award” that would “not give us a warrant to vacate it.”

Id. Therefore we conclude that the arbitrator did not exceed the scope of his authority

by interpreting the CBA in a way that allowed Equitable to be found liable for the

breach.

C. The Arbitrator Did Not Exceed His Authority to Resolve Representational

Questions

Although the arbitrator rejected Equitable’s argument that representational issues

precluded arbitrability, Equitable asserts that the arbitrator necessarily had to decide

representational issues to create the specific-performance remedy, and that
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representation issues are outside of an arbitrator’s authority and thus were not within the

scope of the issue presented. “Although the federal courts without question indulge in

a presumption in favor of arbitration, the arbitrator, in determining arbitrability, is

constrained by the principle that a party may not be forced to arbitrate any dispute that

it has not, by contract, obligated itself to arbitrate.” Peterbilt Motors Co., 219 F. App’x

at 436 (citing Mich. Family Res., 475 F.3d at 750–51; United Steelworkers v. Mead

Corp., 21 F.3d 128, 131 (6th Cir. 1994)). The arbitrator is not “free to invent contract

provisions that will support a finding of arbitrability.” Id. at 437.

The district court found that the arbitrator made a legal decision to treat the issue

of whether Equitable was bound as a successor as a contract interpretation issue and not

as a representational issue under labor law. Doc. 27 (Summ. J. Tr. at 92–93). Indeed,

the arbitrator repeatedly stated that he was dealing with a question of contract

interpretation—“this matter is one which remains a matter of contract: did Equitable

agree to be bound by the terms of the existing labor agreement between the Union and

[Kentucky West].” Doc. 8 (Answer), Ex. 5 (Award at 26). We agree with the

arbitrator’s conclusion that he did not necessarily have to decide the representation

issues Equitable raised in order to interpret the CBA and impose a remedy because the

arbitrator imposed specific performance on Equitable as the stand-in for Kentucky West.

Contrary to Equitable’s contention, our unpublished opinion in Dobson Industrial, Inc.

v. Iron Workers Local Union No. 25 does not require the opposite conclusion. In

construing the contract in Dobson, the arbitrator determined that it must also determine

whether an alter ego relationship existed, which the company asserted raised an

impermissible representation issue that the arbitrator decided against the company.

Dobson Indus., 237 F. App’x at 44–46. However, because the potential representation

issue arose within the contract interpretation, we concluded in Dobson that the

arbitrator’s decision “drew its essence from the contract” and, in light of a broad

arbitration clause similar to the one in the CBA here, the issue could be decided in

arbitration. Id. at 46. The same reasoning applies here. As the district court found, the

arbitrator only ordered Equitable to honor the CBA, and “[i]t’s for the company to figure
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5

At oral argument, the Union confirmed that it was not seeking to assert or determine its rights

to represent other employees in the future beyond the scope of the CBA at issue in this litigation.

out in that scenario how to do it legally” without running afoul of majority status or unit

appropriateness issues. Doc. 27 (Summ. J. Tr. at 55).

Moreover, that an arbitrator may have “implicitly” decided a representational

issue does not necessarily mean that he exceeded his authority because collateral

representational issues may remain outside the NLRB’s exclusive jurisdiction. “When

a dispute is ‘primarily representational’ under § 7 or § 8 of the National Labor Relations

Act, ‘simply referring to the claim as a “breach of contract” [is] insufficient for the

purposes of § 301 federal courts’ jurisdiction,’ but ‘matter[s] primarily of contract

interpretation, whi[ch] potentially implicat[e] representational issues,’ remain within the

federal courts’ § 301 jurisdiction.” Int’l Bhd. of Elec. Workers, Local 71 v. Trafftech,

Inc., 461 F.3d 690, 694–95 (6th Cir. 2006) (quoting Paper, Allied-Industrial, Chem. &

Energy Workers Int’l Union v. Air Prods. & Chems., Inc., 300 F.3d 667, 672, 675 (6th

Cir. 2002)) (alterations in original). There are “two types of situations in which a

dispute will be treated as primarily representational: where the Board has already

exercised jurisdiction over a matter and is either considering it or has already decided

the matter, or where the issue is an initial decision in the representation area.” Id. at 695

(internal citations, quotation marks, and alteration omitted). As in Trafftech, in the

instant case “the arbit[rato]r need not resolve the representational dispute to determine

whether [the company] has violated its collective bargaining agreement.” Id. at 695–96.

The Union does not question whether it may represent the non-union employees of the

other subsidiaries, and it did not ask the arbitrator to decide whether this was possible

or to require Equitable to bargain with the Union for ongoing representation.5

 The issue

was whether Equitable could be liable for Kentucky West’s violation of the existing

CBA and not whether future representation was possible. See Air Prods. & Chems., 300

F.3d at 675–76, 677–78; see also John Wiley & Sons, 376 U.S. at 551 & n.5 (holding

that a union without majority status in the newly merged company could still represent

employees in arbitration under former agreement). The fact that Equitable sees potential
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representation issues in the remedy does not preclude the remedy, and Equitable may

still present such issues to the NLRB. See Trafftech, 461 F.3d at 694, 697.

Therefore we conclude that the arbitrator did not exceed the scope of his

authority to decide a representational issue in this case because the arbitrator’s successor

decision was permissible in furtherance of his interpretation of the CBA.

D. The Award’s Remedy Does Not Violate Public Policy

Equitable next contends that the specific-performance remedy ordered in the

Award violates public policy by requiring recognition of a minority bargaining unit by

a non-party, in violation of the public policy in the National Labor Relations Act

(“NLRA”), specifically 29 U.S.C. § 159 (§ 9 of the NLRA). The “narrow” public policy

exception makes an arbitration award unenforceable if it is contrary to an “‘explicit,’

‘well defined,’ and ‘dominant’” public policy that is “‘ascertained by reference to the

laws and legal precedents and not from general considerations of supposed public

interests.’” E. Associated Coal Corp. v. United Mine Workers, Dist. 17, 531 U.S. 57,

62–63 (2000) (quoting W.R. Grace & Co. v. Local Union 759, Int’l Union of United

Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 766 (1983) (internal

quotation marks omitted)). The question is whether the actual arbitration award—the

enforcement of the interpretation of the CBA—violates public policy, not whether the

breach of the labor agreement or the potential actions that could be taken in response to

the award violate public policy. Id.; Shelby County Health Care Corp. v. Am. Fed. State,

County & Mun. Employees, Local 1733, 967 F.2d 1091, 1096 (6th Cir. 1992); see also

Columbia Gas of Ohio, Inc. v. Util. Workers Union, 329 F. App’x 1, 4–5 (6th Cir. 2009)

(unpublished opinion). We “tak[e] the facts as found by the arbitrator” in “determin[ing]

whether the arbitrator’s interpretation of the contract jeopardizes a well-defined and

dominant public policy.” Int’l Union, UAW v. Dana Corp., 278 F.3d 548, 558 (6th Cir.

2002) (internal quotation marks omitted).

As we stated above, the Award clearly “‘draws its essence from the contract.’”

Mich. Family Res., 475 F.3d at 752 (quoting Misco, 484 U.S. at 38). The arbitrator
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6

The district court rejected this argument because Equitable had agreed, prior to arbitration, that

it would step into Kentucky West’s shoes for purposes of the Union’s potential remedy. Doc. 27 (Summ.

J. Tr. at 94–95). During the summary judgment hearing, the district court disagreed with Equitable’s

argument that the remedy effectively ordered Equitable to act in violation of federal labor law to recognize

a minority bargaining unit, finding that the arbitrator had only ordered Equitable to honor the CBA and

“[i]t’s for the company to figure out in that scenario how to do it legally.” Id. at 55. The district court

found that the arbitrator interpreted the contract to determine whether a breach occurred under its terms,

and then imposed a remedy of specific performance on Equitable as the successor entity who had agreed

to stand in the shoes of Kentucky West. Id. at 32–35, 52–53, 58.

7

Although Equitable argues that it would be against public policy to require a new employer to

follow a predecessor’s collective bargaining agreement if the requisite majority status and unit

appropriateness are lost, even if the new employer voluntarily assumed the agreement, see Burns Int’l Sec.

Servs., 406 U.S. at 278–85, here the arbitrator based the Award on the fact that Equitable was acting as

Kentucky West for purposes of the arbitration and the remedy, not merely the new employer. See

Eisenmann Corp. v. Sheet Metal Workers Int’l Ass’n Local No. 24, 323 F.3d 375, 381–85 (6th Cir. 2003)

(holding that arbitration award that enforced terms of company’s agreement with union did not violate

public policy by extending agreement to non-union workers); see also John Wiley & Sons, 376 U.S. at 551

& n.5 (holding that a union without majority status in the newly merged company could still represent

employees in arbitration under former agreement even though “[p]roblems might be created by an arbitral

award which required [the new company] to give special treatment to the former [company’s] employees

because of rights found to have accrued to them under the [union] contract,” because such hypothetical

problems could be avoided by a solution “within the flexible procedures of arbitration”). Equitable has

not cited any binding precedent to support its position on this issue.

found that the Union and Kentucky West included successorship language in the CBA

that would require Kentucky West to condition any transaction such as the one at issue

here on the continuation of the CBA. The Award merely requires Equitable, as the

stand-in for Kentucky West, to honor this mandate and be liable for its breach. Equitable

does not argue that Article II, Section 1 is unenforceable as a violation of public policy,

or that there is no legal way to fulfill its mandate or the award. See W.R. Grace & Co.,

461 U.S. at 769 n.13 (recognizing that specific performance of collective bargaining

agreement term would violate public policy because in violation of federal

discrimination laws, but upholding arbitration award of damages for breach of contract).

We conclude, as did the district court,6 that the arbitrator “was acting well within the

bounds” of the CBA. See Shelby County Health Care, 967 F.2d at 1096–97 (finding

award that followed mandate of company’s agreement with union did not violate public

policy). The Award does not grant the Union any rights to future representation,

bargaining status, or other such rights attendant to the NLRA. Indeed, it might be

against public policy not to enforce the successorship clause.7 See NLRB v. Burns Int’l

Sec. Servs., Inc., 406 U.S. 272, 282–83 (1972) (“‘[T]he essence of collective bargaining

is that either party shall be free to decide whether proposals made to it are satisfactory.’”
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(quoting S. Rep. No. 74-573, at 12 (1935))); id. (“‘The theory of the Act is that free

opportunity for negotiation with accredited representatives of employees is likely to

promote industrial peace and may bring about the adjustments and agreements which the

Act in itself does not attempt to compel.’” (quoting NLRB v. Jones & Laughlin Steel

Corp., 301 U.S. 1, 45 (1937))); see also W.R. Grace & Co., 461 U.S. at 771 (recognizing

“the federal labor policy that parties to a collective bargaining agreement must have

reasonable assurance that their contract will be honored”). Under the circumstances, we

cannot agree that the Award’s remedy violates public policy.

E. The Arbitrator Did Not “Dispens[e] His Own Brand of Industrial Justice”

For many of the same reasons stated above, we cannot agree with Equitable’s

contention that the arbitrator’s decision is tainted by a “results-driven” approach that

makes the Award unenforceable. “‘[O]nly when the arbitrator strays from interpretation

and application,’ . . . does he enter the forbidden world of ‘effectively dispens[ing] his

own brand of industrial justice,’ making the arbitrator’s decision ‘unenforceable.’”

Mich. Family Res., 475 F.3d at 752 (quoting Garvey, 532 U.S. at 509 (internal quotation

marks omitted)) (alterations in original). The danger of imposing “industrial justice”

may arise if “the arbitrator’s decision on the merits was so untethered from the

agreement that it casts doubt on whether he was engaged in interpretation.” Id. at 754.

As stated above, we conclude that the arbitrator’s decision is supported by his

interpretation of the contract.

That the deciphering of this contract required implications and inferences

suffices by itself to show that the arbitrator was permissibly engaged in

interpretation. . . . It was the “arbitrator’s construction,” not three

layers of federal judicial review, that the parties “bargained for,” and

that delegation of decision-making authority must be respected even

when time and further review show that the parties in the end have

bargained for nothing more than error.

Id. at 756 (emphasis added). Here, the arbitrator repeatedly stated that he was dealing

with a question of contract interpretation, and the arbitrator’s remedy is related to his
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interpretation of the CBA and necessarily flows from his finding that a requirement to

honor the CBA was a condition precedent to the transaction. Because the transaction

had occurred without the condition precedent, the arbitrator ordered specific

performance of the CBA to place the Union in the position it would have been had

Article II, Section 1 been honored prior to the transaction.

We are also unpersuaded by Equitable’s argument that the Award dispensed the

arbitrator’s own brand of industrial justice by ignoring arbitral precedent. We decline

to employ the strict application of arbitral res judicata that Equitable urges because our

precedent instructs “that absent a contractual provision to the contrary, the preclusive

effect of an earlier arbitration award is to be determined by the arbitrator.” Dana, 278

F.3d at 557. The arbitrator here followed our suggestion to “[a]s a practical matter, . . .

take into consideration prior arbitration decisions involving the same provision of the

collective bargaining agreement.” Id. So long as the current arbitrator’s interpretation

draws its essence from the contract, the arbitrator may disagree with a prior arbitral

decision. Id. Here, the arbitrator discussed each prior arbitral decision at length and

distinguished both the issues and factual scenarios involved from the current case. Thus,

we also reject Equitable’s final argument for vacating the Award.

III. CONCLUSION

We conclude that the district court did not err in granting summary judgment to

the Union and enforcing the Award here, in light of the great deference afforded to

determinations made by arbitrators. For the foregoing reasons, we AFFIRM the

judgment of the district court.
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_______________________

CONCURRENCE

_______________________

CORNELIA G. KENNEDY, Circuit Judge, concurring. I concur with the

majority opinion. I write separately to note that we are not deciding that there are

ongoing equitable obligations on Equitable.