IN THE UNITED STATES COURT OF APPEALS

                               FOR THE FIFTH CIRCUIT
                             __________________________

                                    No. 00-31155
                               SUMMARY CALENDAR
                             __________________________


TONY BAROUSSE; LARRY GILBERT; TONY CHAUVIN; GLENN BOURGEOIS; LLOYD
LAGARDE, SR; PAUL GISCLAIR, JR; HENRY WILLIAMS; AUDY BERKE; PAUL
PEYTON; EDWIN VERDIN; SILVIA ZELAYA; RANDY SHELBY; DAVID MANSHACK;
RICHARD WALKER, SR; JAMES LAFOREST, III; MICHAEL BOUDREAUX; GREGORY
WILSON, SR; KENNETH PREVOST; LEONARDO BRETOS, JR; JAMES FOX, JR; KEVIN
DUFRENE; ROBERT JOHNSON; JOHN LAWSON, III; CLARENCE BATES; TERRY
SABIO; NATHANIEL BUTLER; DALTON CANTRELLE

           Plaintiffs - Appellees - Cross-Appellants

 v.

PAPER, ALLIED-INDUSTRIAL, CHEMICAL & ENERGY WORKERS INTERNATIONAL
UNION; ET AL

           Defendants

PAPER, ALLIED-INDUSTRIAL, CHEMICAL & ENERGY WORKERS INTERNATIONAL
UNION; PAPER, ALLIED-INDUSTRIAL, CHEMICAL & ENERGY WORKERS
INTERNATIONAL UNION, Local Union Number 4-447

           Defendants - Appellants - Cross-Appellees

             __________________________________________________

                    Appeal from the United States District Court
                        for the Eastern District of Louisiana
                                  (99-CV-2600-L)
             __________________________________________________
                                    July 10, 2001

Before REYNALDO G. GARZA, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:1

       This suit is brought under the National Labor Relations Act, 29 U.S.C. § 151, et seq.

Plaintiffs are employees at the Westwego, Louisiana plant of the National Gypsum Company and

the defendant is their Union. The Union represented them as a class in a dispute that arose over

the terms of a collective bargaining agreement between the union and National Gypsum Company.

The dispute was over a mandatory “day off” program National Gypsum Company instituted. The

parties agreed to participate in binding arbitration. The arbitration resulted in an award of

compensatory and punitive damages, attorney’s fees, costs and interest. The district court and

this Court affirmed the award. The issue presently before the court is the proper distribution of

the punitive damages portion of that award.

       The district court entertained defendant’s motion for summary judgment and

plaintiffs’cross-motion for summary judgment. It granted plaintiff’s motion for summary

judgment. Having read the briefs and reviewed the record, we AFFIRM the decision of the

district court based on its memorandum opinion which is attached hereto as Appendix A.




       1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
                             UNITED STATES DISTRICT COURT

                            EASTERN DISTRICT OF LOUISIANA

TONY BAROUSSE, ET AL                                           CIVIL ACTION

VERSUS                                                                 NO. 99-2600

PAPER, ALLIED-INDUSTRIAL, ET AL.                               SECTION "L" (2)


                                      ORDER & REASONS

       Before the Court is the motion of defendant Paper, Allied-Industrial, Chemical & Energy

Workers International Union, and its affiliated Local Union No. 4-447 (collectively the "Union")

for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Also before

the Court is the cross motion of plaintiff Tony Barousse and 26 other named employees of

National Gypsum Company (the "Employees") for summary judgment pursuant to Rule 56 of the

Federal Rules of Civil Procedure. For the following reasons, defendant’s motion for summary

judgment is DENIED and plaintiffs’ cross motion for summary judgement is GRANTED. The

case is remanded to the arbitrator originally assigned to the case by the parties for final resolution

on the issue of proper distribution of the punitive damage award.

                                        I. BACKGROUND

       In this suit brought under the National Labor Relations Act ("NLRA"), 29 U.S.C. § 151,

et seq., plaintiffs are employees at the Westwego, Louisiana plant of National Gypsum Company

(the "Company"). They allege that the defendant Union represented them as a class in a dispute

that arose in 1994 over the terms of a collective bargaining agreement between the Union and the

Company. The dispute involved a mandatory "day off" program that the Company instituted.


                                                  3
The parties agreed to participate in binding arbitration, and chose to bifurcate the issues of liability

and damages. In 1996 the arbitrator found that the Company violated the collective bargaining

agreement and in 1997 the arbitrator ordered the Company to pay compensatory and punitive

damages, attorney’s fees, costs and interest. The district court and the U.S. Fifth Circuit Court of

Appeals affirmed. The issue presently before this Court is the proper distribution of the punitive

damage portion of the award. A review of the facts is necessary in order to decide this issue.

       At a general union meeting on August 22, 1998 the issue of the distribution of the punitive

damage award was first discussed, but left unresolved. The issue was again discussed without

resolution on September 23, 1998 at another general membership meeting. At this latter meeting,

the executive union board stated their belief that the punitive award was awarded in favor of the

Union and not the individually-affected members. The affected members in attendance expressed

a different view and requested a clarification. On September 25, 1998, the Union distributed to

each affected union member a check for back pay from only the compensatory damage award.

Thereafter, debate and disagreement over the rightful recipient of the punitive award was

heightened. On April 8, 1999 the Union wrote a letter to the arbitrator requesting clarification of

the award. On April 16, 1999 the arbitrator responded, addressing the distribution of the

punitive damage award stating in essence that $90,000.00 should go to the affected membership

in further compensation of their wage loss, and $10,000.00 should go to the Union for its

admirable prosecution of the case. He added that if there was any surplus remaining after the

employees have been made whole, the remainder should go to the Union. On June 23, 1999, in

response to the arbitrator's clarification, the Union mailed to each of the affected members a

notice stating that they may be entitled to a portion of the punitive damages award. The note


                                                   4
advised that the employees must prove entitlement by presenting verifiable wage or other

compensation losses incurred as a result of the "day off" program.

       The parties maintain different interpretations of the arbitrator’s original award and his

subsequent clarification of that award regarding the rightful recipient of the punitive damages.

These differences became irreconcilable and on August 25, 1999 plaintiffs filed suit claiming that

the Union breached its duty of fair representation under the NLRA by failing to disburse the

punitive damages portion of the arbitration award. Plaintiffs also aver that the defendant's actions

constitute tortious conversion under Louisiana law.

       In its motion for summary judgment, the Union argues that plaintiffs’ duty of fair

representation claims are (1) time barred by operation of the NLRA and the Labor Management

Relations Act (“LMRA”); (2) subject to dismissal for plaintiffs' failure to exhaust internal union

remedies under the Union’s constitution and bylaws; (3) substantively without merit because the

Union’s actions were fair and reasonable; and (4) plaintiffs’ state law tort claims for tortious

conversion are preempted by Section 301 of the LMRA. Additionally, the Union argues that the

arbitrator’s clarification of the original award is a non-binding advisory opinion and should,

therefore, be disregarded.

       In their cross motion for summary judgment, plaintiffs respond that they (1) timely filed

the suit within six months of the time when they knew or should have known that the Union had

breached its duty of fair representation; (2) were not required to resort to administrative remedies

in this case because any procedure instituted by the Union would have been ineffective in

resolving their dispute; and (3) request that the court remand this matter to the arbitrator to

determine the proper method of distributing the award.


                                                  5
                          II. SUMMARY JUDGMENT STANDARD

       Summary judgment will be granted only if the pleadings, depositions, answers to

interrogatories, and admissions, together with affidavits show that there is no genuine issue as to

any material fact and that the defendant is entitled to a judgment as a matter of law. Fed. R. Civ.

P. 56. If the party moving for summary judgment demonstrates the absence of a genuine issue of

material fact “the nonmovant must go beyond the pleadings and designate specific facts showing

that there is a genuine issue for trial.” Willis v. Roche Biomedical Laboratories, Inc., 

, 315 (5th Cir. 1995). “[A] dispute about a material fact is genuine if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.” 

of demonstrating the existence of a genuine issue is not met by “metaphysical

doubt” or “unsubstantiated assertions.” Little v. Liquid Air Corp., 

, 1075 (5th Cir.

1994) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio, 

, 586 (1986)). The

Court must “resolve factual controversies in favor of the nonmoving party, but only when there is

an actual controversy, that is, when both parties have submitted evidence of contrary facts.” 

does not, “in the absence of proof, assume that the nonmoving party could or would

prove the necessary facts.” 

record taken as a whole could not lead a rational trier of

fact to find for the nonmoving party, no genuine issue exists for trial. See 

. Finally, “the mere existence of some factual dispute will not defeat a motion for summary

judgment; Rule 56 requires that the fact dispute be genuine and material.” 

.

“Only disputes over facts that might affect the outcome of the suit under the governing law will

preclude summary judgment.” 

ANALYSIS

        In this case, the parties submitted a joint stipulation regarding the relevant facts but

disagree on the legal conclusions to be drawn from those facts. The Court will address each of

the issues raised by the parties.

A. Statute of Limitations

        Both parties agree that the prescriptive period applicable to this claim is a six-month

prescriptive period given that the instant suit is a suit by a group of employees against their union

for breach of the duty of fair representation. See Delcostello v. Int’l Bhd. Teamsters, et al., 

, 169 (1983). Both parties also acknowledge that the applicable limitations period begins

to run "when the claimants discover, or in the exercise of reasonable diligence should discover,

the acts that form the basis of their duty of fair representation claim." See Trial v. Atchison,

Topeka & Santa Fe Railway Co., 

, 124 (5th Cir. 1990). Nevertheless, the parties

disagree as to the date on which the limitation period commenced.

        The Union asserts that the prescriptive period began to run in late September 1998, when

its executive board stated their belief at a general union meeting, without all plaintiffs present, that

the punitive award was awarded in favor of the Union and not the affected members. The Court

is compelled to juxtapose this assertion with the fact that six months later, on April 8, 1999, the

Union wrote a letter to the arbitrator requesting clarification as to who was entitled to the

punitive damage award. If the arbitrator’s opinion was not clear to the Union on April 8, 1999,

and they felt it necessary to seek clarification, then it is safe to assume that the Union had not

taken a final position on that date. The affected members had no reason to conclude otherwise.


                                                   7
In fact the affected members had reason to believe that their Union had reconsidered its initial

opinion and was seeking a method to equitably distribute the punitive damages to the affected

members. See Gustafson v. Cornelius Co., 

, 79 (holding that action against the union

could not have accrued until the union had actually engaged in the acts of unfair representation)

(citing Butler v. Local Union 823 Int’l Bhd. of Teamsters, 

, 450 (8th Cir. 1975)).

Plaintiffs should not be required to anticipate that unions will act unfairly in representing them.

See 

. On the contrary, the union member has every right to expect that the

union will fulfill its duty properly, and that there will be no occasion for a Section 301 suit. See

points to several Fifth Circuit opinions in support of their contention that

plaintiff’s action is time-barred. However, in all three cases the court determined the start of the

prescriptive period was signaled by a specific event or a written, signed and delivered document.

See Tyler v. International Bhd. of Electrical Workers Local 130 et al., No. CIV.A. 98-3522,

, at *3 (E.D. La. Jan. 11, 2000) (prescriptive period began the day a letter issued

from union to employee informing her that her grievance was without merit); Barrett v. Ebasco

Constructors, Inc., 

, 171 (5th Cir. 1989) (prescriptive period began when the

plaintiff was told by the Union in an arbitration hearing that it would not pursue his grievance);

Landry v. Air Line Pilots Ass’n Int’l AFL-CIO, 

, 411 (5th Cir. 1990) (prescriptive

period began the day a settlement agreement was signed between the union and employer).

       Moreover, in a somewhat similar fact pattern, the Third Circuit held that a brief

impromptu hallway meeting between a union representative and an employee did not constitute

sufficient notice that the union would not proceed further with employee’s grievance. See Hersh


                                                  8
v. Allen Products Co., 

, 235 (3rd Cir. 1986). The employee left the hallway

believing that her grievances were still pending with the union, and didn’t know otherwise until

she received a letter from the union. See 

The court held that the employee didn’t

receive notice until she received this letter. See 

case at bar, plaintiffs had reason to

believe the issue was still under consideration until they received the Union's June 23 letter, which

requested that plaintiffs prove entitlement to the punitive damages. This letter of June 23, 1999

constitutes the first actual notice to the employees that the Union had reached a final decision and

intended to implement it.

        After reviewing the undisputed facts and considering the applicable law, the Court

concludes that the earliest possible moment that the plaintiffs knew or should have known that the

Union had conceivably breached its duty of fair representation was on June 23, 1999. On that

date, in response to the arbitrator’s April 16, 1999 clarification of his award, the Union mailed

notices to all members affected by the arbitrator’s award stating that the affected members may be

entitled to a portion of the punitive damage award if they could present “verifiable wage or other

compensation losses incurred as a result of the company’s work week modification struck down

by the arbitrator’s original award.” Because suit was filed on August 25, 1999, the plaintiffs’

claims have not prescribed.

B. Exhaustion of Internal Union Remedies

        The Union argues that the suit should be dismissed because the affected members failed to

exhaust the union grievance procedure. Section 301 of the LMRA provides that suits for

violation of contracts between an employer and a labor organization may be brought in any United

States District Court. 29 U.S.C.A. § 185. Coverage of actions under Section 301 extends to


                                                   9
suits brought by employees as well as suits brought by unions. See Association of Westinghouse

Salaried Employees v. Westinghouse Electric Corp., 

, (1955). When a Collective

Bargaining Agreement ("CBA") provides for grievance procedures, these methods are the

preferred method of resolving disputes. See Republic Steel Corp. V. Maddox, 

(1965). Further, an employee must ordinarily exhaust these remedies before bringing a suit under

Section 301 of the NLRA. 

Court however has recognized that there are

circumstances where exhaustion is not required. See Glover v. St. Louis-San Francisco Ry. Co.,

(1969).

        Where resort to internal grievance procedures would be futile, exhaustion of these internal

remedies is not required. See 

Circuit has recognized this ground as a reason

excusing an employee from resorting to administrative remedies under the CBA. See Rabalais v.

Dresser Industries, Inc., 

, 519 (5th Cir. 1978). The futility exception applies where

the exhaustion of contractual remedies would be futile because the aggrieved employee would

have to submit his claim to a group that is in large part chosen by the (employer or union) against

whom his real complaint is made. See 

393 U.S. at 330). Employees are

excused from exhausting internal grievance procedures where doing so would result in the union

conducting an investigation of itself and having to prove its own misconduct. See Parker v. Int’l

Bhd. of Teamsters, 501 F. Supp 440, 452 (S.D. Ohio 1980) (exhaustion of internal procedures

rendered futile and unnecessary where union would have to investigate its own misconduct in how

it supervised election).

        The Court finds that in the instant case, the futility exception to the general exhaustion

requirement applies. The case is before this Court due to the parties’ differing interpretations of


                                                  10
the arbitrator’s award, and subsequent clarification of that award. The parties are on opposite

ends of the argument and both have a financial interest in the outcome. Therefore, the Union’s

argument that the employees must turn toward the Union itself for resolution of the issue rings

hollow. Requiring the employees to pursue their grievance internally, when the Union has already

stated their position on the issue, appears to be a futile action that would fall within the exceptions

granted to the exhaustion requirement.

C. Preemption of Plaintiff’s State Law Claims

        As both parties have agreed, plaintiff’s state law claims for tortious conversion of the

punitive award by the Union are preempted by Section 301 of the LMRA. A union’s duty of fair

representation is jurisdictionally grounded in Section 301 of the LMRA. See Hines v. Anchor

Motor Freight, 

(1976). The rule is that when a state law claim is substantially

dependent on analysis of a collective bargaining agreement, a plaintiff may not evade the

preemptive force of Section 301 of the LMRA by casting the suit as a state law claim. See

International Bhd. of Elec. Workers v. Hechler, 

, 859 (1987).

D. Arbitrator’s Opinion

        The Union argues that the arbitrator’s original decision awarded the punitive damages in

their favor, and that the arbitrator’s subsequent clarification is not legally binding. In a letter

dated April 16, 1999, in response to a request for clarification by the Union, Mr. Bankston

addressed the distribution of the $100,000.00 punitive damage award by stating in pertinent part:

My opinion is that a distribution of $90,000.00 to the affected membership in further
compensation of their wage loss, and $10,000.00 to the Local Union for its admirable prosecution
of the case, is imminently fair and just. That is, unless the $90,000.00 is more than sufficient to
make whole those members affected by the day-off program. If that is the case, then whatever



                                                    11
remains of the $90,000.00 ought properly go to the Local Union in addition to the $10,000.00, as stated.

         The Court affirms Mr. Bankston’s clarification letter, however the Court believes that he

stopped one step short of finalizing his opinion. Mr. Bankston failed to explain how the parties

are to determine which employees were not made whole by the compensatory damage award, and

how the parties are to determine the amount of additional award each employee was entitled to

receive.

         As Mr. Bankston himself points out, proving the total lost wages of each employee was a

difficult task.2 In his April 16 clarification letter, he describes his desire to supplement the

employee’s lost wages award, however does not explain how the employees are to prove their

losses considering the difficulty the Union had trying to do so during the original arbitration

hearing. With this in mind, the Court remands the issue to Mr. Bankston, charging him with the

task of developing a suitable and fair method or formula for determining how much each affected

employee should receive and what they need to produce to prove their loss.

         The Union claims that the common law doctrine of functus officio renders the arbitrator’s

April 16 clarification letter meritless. The functus officio doctrine bars an arbitrator from

revisiting the merits of an award once the award has been rendered.3 However, a widely accepted


2
  At page 2-3 of the original arbitration supplemental opinion and award delivered July 18, 1997, Mr. Bankston
attributes the fact that the Union was only able to show actual employee back pay losses of $152,323.42, while
known losses were close to $300,000.00, because the National Gypsum Company “trashed its scheduling records
after the Union had requested production of those records. Part of the records were retrieved by a vigilant Union
from a Company dumpster.” Additionally, pertinent schedules and time cards were missing or not supplied by the
company.
3
  This definition of functus officio is according to F. Elkouri & E. Elkouri, How Arbitration Works (4th ed. 1985).
It is a fundamental common law principle that once an arbitrator has made and published a final award his
authority is exhausted, he is functos officio and can do nothing more in regard to the subject matter of the
arbitration. See McClatchy News papers v. Central Valley Union, 

, 734 (9th Cir. 1982). The
recognized exceptions to the doctrine are that the arbitrator can correct a mistake which is apparent on the face of
his award, complete an arbitration that is not complete, and clarify an ambiguity in the award. See 

to this doctrine occurs when a federal court finds that an award is incomplete or

ambiguous, in which case the court often remands it to the arbitrator for clarification. See

International Bhd. of Elec Workers v. New England Tel. & Tel. Co., 

, 647 (1st Cir.

1980). The foundation for a federal court’s power to remand an ambiguous arbitration award is

the policy in favor of clear final awards that completely resolve the dispute originally submitted to

the arbitrator. See 

not the court’s place to determine the intent of an arbitrator when the award fails to

make the arbitrator’s intent clear. See New York Bus Tours Inc., v. Kheel, 

, 12 (2nd

Cir. 1988). Consistent with the case law and federal statutes, a court should not undertake to

construe the meaning of arbitration awards where they are unclear. See 

only serve

to undermine the authority of arbitrators. See 

have elected to submit their

disputes to arbitration, they should be completely resolved by arbitration, rather than only partially

resolved. See Iron Workers Local #272 v. Bowen, 

, 1264 (5th Cir. 1980) (citing

San Antonio Newspaper Guild Local No. 25 v. San Antonio Light Division, 

, 825

(5th Cir. 1973)). See also United Steelworkers of America v. Bradley, 

, 73 (5th Cir.

1977) (where ambiguous phrase in the arbitrator’s award was the fulcrum of the dispute, the court

remanded to the arbitrator). The Court at this juncture is left with two possible options: (1) to

start the grievance procedure over again resulting in a second arbitrator interpreting the language

of the original arbitrator; or (2) the more efficient and preferred option, and the option that the

Court adopts today, is to remand to the original arbitrator who is already familiar with the details

of the case. See United Steelworkers of America v. Interpace Corp., 

, 391 (W.D.

Pa. 1978); See also Automotive, Petroleum and Allied Indus. Employees Union v. Sears,


                                                  13
Roebuck and Co., 

, 677 (E.D. Mo. 1984). Court clarification would amount to

preemption of the arbitrator’s fact-finding function, and this Court declines to do so. See 

        For the forgoing reasons, the Court finds that plaintiffs’ action is not time barred, and that

plaintiffs are excused from the general requirement of the collective bargaining agreement to

exhaust all internal grievance procedures due to the well established futility exception.

Additionally, this Court finds that the arbitrator’s clarification of his supplemental award is legally

binding under the permitted exceptions to the doctrine of functus officio and that it is well within

this Court's discretion to remand to the arbitrator for final clarification.

        For the foregoing reasons, defendant’s motion for summary judgment is HEREBY

DENIED and plaintiffs’ cross motion for summary judgment is GRANTED. The suit is remanded

to the arbitrator originally assigned to the case by the parties for final resolution on the issue of

proper distribution of the punitive damage award.




                                                    14
                                        APPENDIX “A”

                             UNITED STATES DISTRICT COURT

                            EASTERN DISTRICT OF LOUISIANA


       TONY BAROUSSE, ET AL                                            CIVIL ACTION

       VERSUS                                                                  NO. 99-2600

PAPER, ALLIED-INDUSTRIAL, ET AL.                               SECTION "L" (2)


                                      ORDER & REASONS

       Before the Court is the motion of defendant Paper, Allied-Industrial, Chemical & Energy

Workers International Union, and its affiliated Local Union No. 4-447 (collectively the "Union")

for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Also before

the Court is the cross motion of plaintiff Tony Barousse and 26 other named employees of

National Gypsum Company (the "Employees") for summary judgment pursuant to Rule 56 of the

Federal Rules of Civil Procedure. For the following reasons, defendant’s motion for summary

judgment is DENIED and plaintiffs’ cross motion for summary judgement is GRANTED. The

case is remanded to the arbitrator originally assigned to the case by the parties for final resolution

on the issue of proper distribution of the punitive damage award.




                                                  1



                                                  15