Sterling China Co v. Glass, Molders , 357 F.3d 546 ( 2004 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Sterling China Co. v. Glass, Molders, No. 02-3773
ELECTRONIC CITATION: 2004 FED App. 0037P (6th Cir.) Pottery, Plastics & Allied Workers
File Name: 04a0037p.06 Local No. 24, et al.
UNITED STATES COURT OF APPEALS _________________
FOR THE SIXTH CIRCUIT COUNSEL
_________________
ARGUED: Jeffrey A. Belkin, BELKIN, BILLICK &
HARROLD, Cleveland, Ohio, for Appellant. Mimi C. Satter,
STERLING CHINA COMPANY , X SATTER & ANDREWS, Syracuse, New York, for Appellees.
Plaintiff-Appellant, - ON BRIEF: John T. Billick, Linda Hauserman Harrold,
- BELKIN, BILLICK & HARROLD, Cleveland, Ohio, for
- No. 02-3773 Appellant. Nancy Samone Sokol, Ronald F. O’Brien,
v. - TOMAR, O’BRIEN, KAPLAN, JACOBY & GRAZIANO,
> Cherry Hill, New Jersey, for Appellees.
,
GLASS , MOLDERS , POTTERY , -
PLASTICS & ALLIED - CLAY, J., delivered the opinion of the court, in which
WORKERS LOCAL NO . 24; - COOK, J., joined. NELSON, J. (pp. 20-26), delivered a
GLASS , MOLDERS , POTTERY , - separate concurring opinion.
PLASTICS & ALLIED -
- _________________
WORKERS INTERNATIONAL
- OPINION
UNION, AFL/CIO, -
Defendants-Appellees. - _________________
- CLAY, Circuit Judge. Plaintiff, Sterling China Company
N (the “Company”), appeals a June 4, 2002, order by the district
Appeal from the United States District Court court granting Defendants, Glass, Molders, Pottery, Plastics
for the Northern District of Ohio at Youngstown. & Allied Workers Local No. 24, et al., (collectively, the
No. 01-01817—Peter C. Economus, District Judge. “Union”) its cross-motion for summary judgment seeking an
order enforcing a supplemental arbitration award, dated
Argued: October 30, 2003 April 4, 2001, which accords its union workers compensation
for work previously performed. Plaintiff’s claim, and
Decided and Filed: February 3, 2004 subsequent motion for summary judgment, asserted that the
supplemental arbitration award is null and void, since
Before: NELSON, CLAY, and COOK, Circuit Judges. Defendants were time barred in requesting that the original
arbitration award be vacated, modified, corrected or enforced
pursuant to the Ohio Revised Code §§ 2711.09 and 2711.13.
Because the Court believes the supplemental award to be a
clarification not subject to Ohio Rev. Code §§ 2711.09 and
1
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Pottery, Plastics & Allied Workers Pottery, Plastics & Allied Workers
Local No. 24, et al. Local No. 24, et al.
2711.13, we AFFIRM the district court’s decision which Substantive Facts
enforced the supplemental award and denied the Company’s
motion for summary judgment. The Company is engaged in the production of fine pottery
and chinaware at its facility in Wellsville, Ohio. The Union,
BACKGROUND headquartered in Media, Pennsylvania, and its local affiliate,
located in Wellsville, Ohio, represent the Company’s
Procedural History production and maintenance employees. On February 6,
1993, the Company and the Union entered into a collective
On June 3, 2001, the Company initiated this case in a bargaining agreement (“CBA”) which contained a grievance
complaint for Declaratory Relief and an Application for Order procedure providing that disputes arising between the parties
Vacating an Arbitration Award in the Common Pleas Court under the agreement would be submitted for arbitration. The
for Columbiana County, Ohio. In Count I of its action, the Company’s “Sterling China/GMP Job Evaluation System,”
Company seeks a declaration that any action to vacate, which is set forth in the Company’s Job Evaluation Manual,
modify, correct or confirm an arbitration award issued in was incorporated into Article 22, Section 7 of the CBA.
December of 1998 is time-barred pursuant to Ohio Rev. Code Pursuant to the Agreement: “[t]he Company has the right to
§§ 2711.09 and 2711.13, thus rendering the subsequent combine present or create new job classifications. When such
arbitration award issued on April 4, 2001 null and void. In present classifications or new classifications are combined or
the alternative, in Count II the Company seeks an order created, the rate for such classification shall be subject to
pursuant to Ohio Rev. Code § 2711.10 vacating the negotiations between Company and Union using the [] Job
arbitration award issued on April 4, 2001. On July 26, 2001, Evaluation System.” (J.A. at 160-184.)
the Union removed this case to the United States District
Court for the Northern District of Ohio pursuant to 28 U.S.C. Under the system, a position is assigned to a Wage Grade
§ 1441 (a), asserting the action arose under § 301 of the Labor commensurate with the degree of difficulty attached to the
Management Relations Act (“LMRA”), 29 U.S.C. §185. following job related factors: experience, job knowledge,
initiative and ingenuity, physical demand, mental or visual
On August 16, 2001, the Union filed its answer and demand, working conditions, and job responsibilities. If the
counterclaim. The counterclaim, pursuant to Section 301 of parties cannot agree on a Wage Grade after their evaluation of
LMRA, seeks an order enforcing the 2001 arbitration award. a job, either party may file a grievance.
The parties filed cross-motions for summary judgment on
December 17, 2001. On June 4, 2002, the district court In the fall of 1994, the Company began production of a
issued its order denying the Company’s motion for summary specialty line of glost (glazed) products for the Longaberger
judgment and granting the Union’s motion for summary Company. Employees who performed work on the
judgment to enforce the supplemental award. On July 3, Longaberger, specifically the selection or boxing of the
2002, the Company filed its notice of appeal. specialty items, were paid the Wage Grade 1 base rate of the
Glost Utility position, or the Wage Grade 2 base rate of the
Glost Selector position.
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Pottery, Plastics & Allied Workers Pottery, Plastics & Allied Workers
Local No. 24, et al. Local No. 24, et al.
On or about November 3, 1995 the Union filed a grievance the Company’s objection to the retroactive date would call for
citing the Company’s violation of Article 22, Section 7 of its a change in the award which would be contrary to the
CBA regarding the applicable wage rate for employees who principle of functus officio.1
performed Longabergerware packer’s duties, contending that
the correct rate was the Wage Grade 3 base rate of the Glost Plaintiff then requested an audit from the Union of the
packer position ($7.585) “plus bonus amount.” An arbitration affected employees’ hours in order to calculate back pay. In
proceeding commenced in accordance with the grievance a letter dated, October 1, 1999, the Union indicated that 25
procedures of the CBA. Arbitration hearings were conducted employees worked a total of over 24,000 hours in regular and
on December 5, 1996, November 14, 1997, and April 21, overtime and that they were still auditing the numbers. In a
1998. On December 28, 1998, the arbitrator delivered its letter dated, October 14, 1999, the Company calculated the
opinion and award, sustaining the Union’s grievance, holding pay difference at $.25 per hour and offered to pay that amount
that the affected employees should be paid “the difference for a total of 25,000 hours to account for regular and overtime
between the wage rate they received and the higher base wage hours. The Company also quoted the language of the
rate that had been paid to the Glost Packers” since the fall of arbitration award that held the affected employees were not
1994. The award indicated that the “job duties” of the entitled to the incentive rates.
“employees who worked on the Longaberger specialty items
are ‘reasonably related to the essence of the duties of the The Union wrote back in a letter dated November 4, 1999,
Glost Packer.’” With respect to the “incentive rates” sought stating that the affected employees worked 19,001.625
by the Union, however, the arbitrator was persuaded by the straight hours and 2,359.5 overtime hours on the Longaberger
Company’s evidence that the affected employees were not work and that the Union did not “share [the Company’s]
entitled to such “incentive rates.” Therefore, the Company interpretation of the arbitrator’s award.” By letter dated
was required to pay “any and all employees, who have November 15, 1999, the Company offered to pay the
performed Glost Packer work on the Longaberger specialty difference between the Wage Grade 1 rate and the Wage
ware since the fall of 1994, the difference between the wage Grade 3 rate, which was $.26 per hour for straight time and
rate they received and the higher base wage rate that has been $.39 per hour for overtime, which totaled $5,860.63,
paid to the Glost Packer.” according to the Company.
The Company objected, by letter, on January 12, 1999, On December 22, 1999, the Union wrote a letter to the
because the award provided back pay beyond the date on arbitrator, carbon copying the Company, which stated: “It is
which the grievance had been filed. The arbitrator responded [our] understanding that you are retaining jurisdiction. As of
that according to Article 22, section 7 of the CBA, any change this date, the parties have not reached agreement as to the
in rates of pay will be retroactive to the “date of the change or proper remedy. Therefore, we are requesting available dates
new classification,” and based on the change or new for the purpose of getting your opinion regarding the remedy
classification of the Glost Pack workers on the Longaberger after appropriate arguments have been made.” On
specialty ware that occurred in the fall of 1994, the remedy is
retroactive to the fall of 1994. The arbitrator also stated that
1
See section I.B, infra.
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Pottery, Plastics & Allied Workers Pottery, Plastics & Allied Workers
Local No. 24, et al. Local No. 24, et al.
December 27, 1999, the Company responded to the Union’s arbitrator explained, “[t]he doctrine of functus officio
letter, stating that the arbitrator’s award was clear and prohibits reopening the merits of the dispute between the
unambiguous with regard to the issues involving back pay parties. . . . I am not determining an issue involving the
and that there was no need or basis for an additional hearing. merits which have already been decided.” Id. The arbitrator
In a letter to the arbitrator, the Union stated: “Contrary to the continued to point out that he retained jurisdiction of the
position taken by [the Company’s counsel], an ambiguity proceedings, “should any disputes arise between the parties
does exist concerning the interpretation of the remedial with respect to the implementation of this remedy.”
portion of your award,” and that the Union “thinks [] a Therefore, the arbitrator maintained that the supplemental
hearing is necessary to establish the precise compensation award clarified the original award and the doctrine of functus
paid to Packers during the back pay period.” Thereafter, the officio did not apply.
arbitrator convened a supplemental hearing on October 22,
2000. DISCUSSION
It was the Company’s position that the arbitrator had no We review de novo the district court’s grant of summary
authority to hold an additional hearing, accept additional judgment. Beacon Journal Pub. Co. v. Akron Newspaper
evidence or issue a supplemental decision or award; therefore, Guild, Local No. 7, 114 F.3d 596, 599 (6th Cir. 1997).
the Company made no appearance except to object to the Summary judgment is proper when there are no genuine
proceedings in their entirety. issues of material fact in dispute and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
The arbitrator issued a supplemental award on April 4, In deciding a motion for summary judgment, the court must
2001. The decision summarized the previous award and the review the evidence and draw all reasonable inferences in
position of the parties; then the arbitrator explained his favor of the nonmoving party. Matsushita Elec. Indus. Co. v.
previous intentions: Zenith Radio Corp., 475 U.S. 574, 587 (1986). The judge is
not to weigh the evidence and determine the truth of the
In order to equal the wage rate equal to Glost Packer’s matter, but rather determine whether there is a genuine issue
rate, by necessity the Longaberger employees are for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
required to be paid the same rate as the Glost Packers, (1986).
rather than a rate which is $3 an hour lower than the
Glost Packer. Moreover, I also included in my award Although this court requires a de novo review, the
that the ‘grievance is sustained.’ By sustaining the deference that federal courts must give to the settlement of a
grievance, I have sustained the Union’s requested remedy labor dispute by an arbitrator is substantial. DBM Tech., Inc.,
which included the $3 add-on. v. Local 227, United Food & Commercial Worker Int’l
Union, 257 F.3d 651, 656 (6th Cir. 2001). The Supreme
(J.A. at 259-262). Court has made clear that courts must give an arbitrator’s
decision substantial deference since it is the arbitrator’s
In response to the Company’s claim that the Union’s construction of the collective bargaining agreement, not the
request was precluded by the doctrine of functus officio, the court’s construction, to which the parties have agreed.
No. 02-3773 Sterling China Co. v. Glass, Molders, 9 10 Sterling China Co. v. Glass, Molders, No. 02-3773
Pottery, Plastics & Allied Workers Pottery, Plastics & Allied Workers
Local No. 24, et al. Local No. 24, et al.
Wyandot, Inc. v. Local 227, United Food & Commercial Alternatively, in order to confirm an award once final,
Workers Union, 205 F.3d 922, 928-29 (6th Cir. 2000) (citing parties must move under O.R.C. § 2711. 09, Id., which
United Paperworks Int’l Union v. Misco, 484 U.S. 29, 37-38 provides:
(1987)). Indeed, an arbitrator’s factual errors and even
misinterpretations of a collective bargaining agreement are [a]t any time within one year after an award in an
not subject to reconsideration by the court. Id. arbitration proceeding is made, any party to the
arbitration may apply to the court of common pleas for
I. an order confirming the award. Thereupon, the court
shall grant such an order and enter judgment thereon,
A. The Application of the Ohio Revised Code’s Statute unless the award is vacated, modified, or corrected as
of Limitations prescribed in sections 2711.10 and 2711.11 of the
Revised Code.
The Union removed this case to federal court since the
action arose under § 301 of the LMRA. Actions filed under Therefore, the proper characterization of the action
§ 301 of the LMRA are subject to the appropriate state statute determines its timeliness. New Idea, 917 F.2d at 967.
of limitations, since it contains no federal limitations
provision of its own. Aloisi v. Lockhead Martin Energy The Company asserts that any action taken by the Union,
Systems, 321 F.3d 551, 556 (6th Cir. 2003) (citing United at this time, is barred by the O.R.C. statute of limitation. The
Parcel Serv. v. Mitchell, 451 U.S. 56, 60 (1981)). The Company further argues that the arbitrator was without
appropriate statute of limitations utilized in an Ohio case authority to re-hear this dispute and re-issue another
seeking to challenge a party moving to vacate, modify, or arbitration decision. However, as this court stated in New
correct an arbitration award is the Ohio Revised Code Idea, the proper characterization of the events in the instant
(“O.R.C.”) § 2711.13, United Steel Workers of America, case is necessary to determine timeliness and the proper
Local 4839 v. New Idea Farm Equipment Corp., 917 F.2d authority. Id. We will deal with timeliness first.
964, 967 (6th Cir. 1990), which provides:
After the first arbitration award was issued in December of
[a]fter an award in an arbitration proceeding is made, any 1998, the parties went back and forth for almost a year
party to the arbitration may file a motion in the court of disputing the proper application of the issued remedy. The
common pleas for an order vacating, modifying, or Union understood the arbitration’s conclusion to require that
correcting the award as prescribed in sections 2711.10 Longaberger workers be equitably compensated to the degree
and 2711.11 of the Revised Code. Notice of a motion to that the existing Glost Packers have been compensated since
vacate, modify, or correct an award must be served upon the fall of 1994, which included more than the $.26 per hour
the adverse party or his attorney within three months difference as determined by the Job evaluation chart.
after the award is delivered to the parties in interest, as Apparently, the $3/per hour “add on” that was requested, and
prescribed by law for service of notice of motion in an clarified in the supplemental arbitration award, was part of the
action. compensation the Union understood to be included in the
difference in wage rate.
No. 02-3773 Sterling China Co. v. Glass, Molders, 11 12 Sterling China Co. v. Glass, Molders, No. 02-3773
Pottery, Plastics & Allied Workers Pottery, Plastics & Allied Workers
Local No. 24, et al. Local No. 24, et al.
Conversely, the Company’s understanding was that the Erwin Behr GMBH & Co., 326 F.3d 772, 782 (6th Cir. 2003)
difference in wage rate it was ordered to pay the Union (holding that a “remand is proper both at common law and
employees, merely included the $.26/per hour increase as under the federal law of arbitration contracts, to clarify an
determined by the Job Evaluation chart, since the arbitrator ambiguous award or to require the arbitrator to address an
made a point in the initial arbitration award to state that he issue submitted to him but not resolved by the award”
was “persuaded by the Company’s evidence with respect to (quoting Green v. Ameritech Corp., 200 F.3d 967, 977 (6th
the reasons for not applying the incentive rate to the Packer’s Cir. 2000))). Although, the Union’s request for clarification
work in the Longaberger ware.” For these reasons, did not come through a request to remand in the federal
clarification of the arbitration award was necessary to move courts, it is important to recognize that the parties involved
forward in the proceedings. By way of literal interpretation, needed clarification before any appropriate recourse of federal
clarification of an award is neither controlled by O.R.C. or state actions became necessary. See New Idea, 917 F.2d at
§§ 2711.09 nor 2711.13.2 969 (citing United Steelworkers v. Timken Roller Bearing
Co., 324 F.2d 738, 740 (6th Cir. 1963) (holding that a “court
Traditionally, if an arbitration award is ambiguous and in is not required to enforce an award that is not clear as to its
need of clarification, courts are made to remand back to the meaning”)).
arbitrator to clarify its meaning and intent. M & C Corp. v.
Therefore, the Union did not violate the three month statute
of limitations to vacate, modify or correct an arbitration
2
O.R. C. §§ 2711.09 and 2711.13 specifically requ ire parties to file
award under O.C.R. § 2711.13 since the Union did not
motions with the court of com mon pleas w ithin the time frame indicated request such a remedy. Additionally, the Union did not
in the language of the statute to guarantee each provision’s respective violate the required one-year time frame in which to receive
relief. There is no indication in the statutory language that these time a guaranteed confirmation of an arbitration award under
frames affect a party’s ability to reconcile clarifications of an award with O.C.R. §2711.09, as that also was not the requested remedy.
its arbitrator. Nevertheless, the initial inquiry by the Union to the
arbitrator requesting clarification was within one year of the arbitration
The Union did request, however, clarification of the award, as
award, thus not precluding mandatory confirmation upon a possible its remedial meaning was clearly in dispute. To fully
motio n, pursuant to O.R .C. §2 711 .09, b y the Union if they so cho se. understand the breadth of the arbitrator’s power to clarify, we
Additiona lly, the Company argues that a request for clarification does visit the issue as to whether or not the arbitrator exceeded his
not effectively “toll” the statute of limitations for the filing of a power in clarifying and subsequently issuing a supplemental
subsequent motion to vacate, modify, correct or confirm, citing Galion v. award.
Am. Fed ’n of State, C ty. & Mun. Emp. Ohio Council 8, AFL-CIO, Local
2243, et al., 646 N.E.2d 813, 815-16 (1999). This matter does not
involve an issue of “tolling,” nor did the Union attempt to modify, vacate, B. The Arbitrator’s Powers Under the Doctrine of
correct or confirm the August 1998 award, by way of a motion under Functus Officio
O.C.R. §§ 271 1.09 or 271 1.13. Furthermore, Galion is distinguishable
since the arbitrator there did not retain jurisdiction to clarify ambiguities, The doctrine of functus officio is defined as “having
whereas in the instant action, the arbitrator did retain such authority. The fulfilled the function, discharged the office, or accomplished
Court need not analyze the parameters of a situation where the arbitrator
does retain jurisdiction under the same factual scenario as Galion, since the purpose, and therefore of no further force of authority.”
the instant case differs in both respec ts. Ameritech, 200 F.3d at 976 (quoting BLACK ’S LAW
No. 02-3773 Sterling China Co. v. Glass, Molders, 13 14 Sterling China Co. v. Glass, Molders, No. 02-3773
Pottery, Plastics & Allied Workers Pottery, Plastics & Allied Workers
Local No. 24, et al. Local No. 24, et al.
DICTIONARY 673 (6th ed. 1990)). This doctrine has The Company disputes the Union’s reliance on cases like
specifically been applied to the breadth of an arbitrator’s the Seventh Circuit’s Excelsior Foundry case, and this
authority whereas in “most cases arbitrators’ appointments Court’s Ameritech case, claiming they are distinguishable to
continue until they have heard the case, made a final award, the instant action; however, the district court was correct in its
and disclosed it to both parties. At this time their task is view that the arbitrator in this case fell squarely within the
performed, their duties under the arbitration agreement are authority, followed by this Court, to properly clarify the order
discharged, and their arbitral authority is at an end.” Id. at issue. Very much in line with Excelsior, the parties here
(citing III MACNEIL , SPEIDEL & STIPANOWICH § 37.6.1.1, at were confronted with an unexpected contingency after the
37:25). However, the doctrine of functus officio contains award was issued: the matter of the exact definition of the
several exceptions, such as (1) where the arbitrator can “higher base rate” that would be equivalent to the rate
“correct a mistake which is apparent on the face of the received by the Wage 3 Glost Packers’ position since the fall
award;” (2) where “the award does not adjudicate an issue of 1994. The Company can not say that the required remedy
which has been submitted, then as to the issue the arbitrator was “clearly determined” by the original arbitral award when
has not exhausted his function and it remains open to him for the parties were clearly in dispute as to the interpretation of
subsequent determination;” and (3) where “the award, the remedy, and there was no numerical determination in the
although seemingly complete, leaves doubt whether the award.
submission has been fully executed, an ambiguity arises
which the arbitrator is entitled to clarify.” Industrial Mut. Furthermore, the arbitrator’s retention of jurisdiction
Ass’n, Inc. v. Amalgamated Workers, Local No. 383, 725 F.2d further supports its actions as falling squarely within the
406, 412 n.3 (6th Cir. 1984) (quoting La Vale Plaza, Inc. v. exceptions of the doctrine of functus officio. The December
R.S. Noonan, Inc., 378 F.2d 569, 573 (3d Cir. 1967)). This arbitral award concluded with the arbitrator’s assertion that he
Court has recognized the need for an arbitrator’s “clarification “retains jurisdiction should any disputes arise between the
of an ambiguous award when the award fails to address a parties with respect to the implementation of this remedy.” In
contingency that later arises or when the award is susceptible correspondence from both parties, the arbitrator’s retention of
to more than one interpretation.” Ameritech, 200 F.3d at 977 jurisdiction was acknowledged, therefore leaving this issue
(citing Glass, Molders, Pottery, Plastics & Allied Workers unchallenged.
Int’l Union, Local 182B v. Excelsior Foundry, Co., 56 F.3d
844, 847 (7th Cir. 1995) (“holding that uncertainty in an C. The Validity of the April 4, 2001 Supplemental
arbitration award regarding which party would pay for the Arbitral Award
employee’s rehabilitation justified the arbitrator’s extension
of the deadline fixed in the original award, and explaining that Alternatively, even if a clarification was within the
this question ‘can fairly be characterized’ as ‘interpretive,’ arbitrator’s power, the Company argues that the supplemental
[thus] ‘allowing [the plaintiff] to crawl through the loophole award exceeded that power and should be vacated, claiming
in the doctrine of functus officio for clarification or it was issued in violation of O.R.C. § 2711.10 (D), which
completion, as distinct from alteration of the arbitral states in pertinent part:
award.’”)).
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Pottery, Plastics & Allied Workers Pottery, Plastics & Allied Workers
Local No. 24, et al. Local No. 24, et al.
[I]n any of the following cases, the court of common award, nor was the “higher base rate” to which the
pleas shall make an order vacating the award upon the Longaberger Packers were entitled, making such
application of any party to the arbitration if: compensation equivalent to the traditional Glost Packers, as
expressed by the arbitrator.
....
In the supplemental award in April 2001, the arbitrator
(D) The arbitrators exceed their powers, or so clarified the dispute over what the “higher base rate”
imperfectly executed them that a mutual, final and encompassed. Since it is undisputed that the original award
definite award upon the subject matter submitted increased the Longaberger rate to Wage Grade 3, the real
was not made. question was whether or not that included what the Union
assumed to be a $3 per hour “add on” rate. The Company
In order to determine whether or not the arbitrator exceeded argues that the $3 “add on” rate is the equivalent to the
his powers we must acknowledge the breadth of those incentive rate to which the original arbitration award did not
powers, and how they were applied. As stated above, the assent. By applying this rate in the supplemental award, the
arbitrator has the power under the exception of the doctrine of Company argues the award was altered or changed, thus
functus officio to go back and “clarify” an ambiguous or violating O.C.R. § 2711. 10.
incomplete portion of an award. Behr, 326 F.3d at 782. Now
we look to the difference between the December 1998 Conversely, the Union argues that the $3 “add on” is
arbitration award and the April 2001 arbitration award to subject to different criteria than the incentive rate and that the
determine whether or not the latter is in fact a clarification. “add on” was necessary to complete what would have been an
incomplete award. As clarification, the April 2001 award
As to the original December 1998 award, the Union defines its previous award as to the exact amount entitled to
asserted that the remedy portion was unclear regarding the Longaberger Packers. The arbitrator specifically states
precisely how much each affected Longaberger Packer would that “in the award I refer to the ‘higher base wage rate’ that
receive in compensation based on the arbitrator’s analysis of has been paid to the Glost Packer. I do not refer to the Grade
the two jobs, the Longaberger Packers and the Glost Packers III wage rate of the Glost Packer . . . The higher base wage
of traditional ware, and its acknowledgment of their rate includes the $3 add on which has been paid to the Glost
equivalency. The ambiguity arises in what seems to be the Packers for a period of years.” (J.A. at 260). The arbitrator
original award’s denial of any incentive rates above and further clarifies his award by stating:
beyond the documented base rate for a Wage 3 Packer, as set
forth in the Job Evaluation Manual. The arbitrator [i]t is important to underscore that I refer to the
acknowledged that the Union failed to submit evidence Longaberger employees warranting a Labor Grade III
regarding the application of the incentive rate to the Glost position and a wage rate equal to the Glost Packers’ rate.
Packer work on the Longaberger ware, while also In order to equal the wage rate equal to the Glost
acknowledging that the Company submitted persuasive Packers’ rate, by necessity the Longaberger employees
evidence on the reasons the incentive should not be applied. are required to be paid the same rate as the Glost Packers,
Nevertheless, the incentive rate was never defined in the first
No. 02-3773 Sterling China Co. v. Glass, Molders, 17 18 Sterling China Co. v. Glass, Molders, No. 02-3773
Pottery, Plastics & Allied Workers Pottery, Plastics & Allied Workers
Local No. 24, et al. Local No. 24, et al.
rather than a rate which is $3/hour lower than the Glost the bargaining agreement,” and is not merely the arbitrator’s
Packer. “own brand of industrial justice,” the award is legitimate.
Beacon, 114 F.3d at 599 (quoting United Steel Workers of
(J.A. at 260). Am. v. Enterprise Wheel & Car Co., 363 U.S. 593, 597
(1960)). An arbitrator’s award fails to draw its essence from
The arbitrator finalized his clarification by stating that he the agreement when:
acknowledged his refusal in applying the incentive rate to the
award; however, “in making [that] statement, the incentive (1) it conflicts with express terms of the agreement; (2) it
rate is to be distinguished from the $3 add on which replaced imposes additional requirements not expressly provided
the incentive rate and which has been paid to Glost Packers.” for in the agreement; (3) it is not rationally supported by
(J.A. at 261). Therefore, given the need for the award’s or derived from the agreement; or (4) it is based on
clarification with respect to the proper compensatory remedy, ‘general considerations of fairness and equity’ instead of
in addition to the arbitrator’s power to properly go back and the exact terms of the agreement.
clarify any inconsistencies of interpretation, the supplemental
award is appropriate and valid under O.C.R. §2711.10 (D). Id. at 600 (quoting Dallas & Mavis Forwarding Co. v. Local
Because the arbitrator’s authority allows for clarification of Union No 89, 972 F.2d 129, 134 (6th Cir. 1992)).
an award subject to multiple interpretations, the issuance of
the supplemental award was well within the arbitrator’s It is indisputable that the CBA included the term “add on”
power and was not subject to any limitations found in O.R.C. therein, with regard to wages. (J.A. at 35-36). It is also
§§ 2711.09 or 2711.13. indisputable that payment of a “base wage” is not the sole
means of compensation allowed for in the CBA. By
II. specifically stating the means by which the Company must
accurately compensate the Longaberger Packers (since the
The Company additionally argues that the arbitrator’s 2001 intention was to require equivalent compensation), the award
award must be vacated because it fails to draw its essence itself did not conflict with express terms of the agreement or
from the CBA. However, in the instant case, the arbitration impose additional requirements not expressly provided for in
award is not a violation of the arbitrator’s express authority as the agreement. See Wyandot, 205 F.3d at 929 (holding that
it does draw its essence from the CBA. the arbitration award violated all four factors that dictated its
authority, as it violated express timeliness provisions,
This Court’s jurisdiction to review an arbitrator’s decision imposed broad mandatory accommodations for all written
is predicated on an allegation that the arbitrator reached an arbitration demands, inaccurately found the grievance
erroneous decision. Teamster Freight Emp. v. Bowling Green arbitrable, and ignored the precise terms of the agreement in
Express, Inc., 707 F.2d 245, 256 (6th Cir. 1983). We review favor of equity, thus clearly departing from the essence of the
the arbitrator’s decision only to determine whether the agreement and was appropriately vacated).
arbitrator was “arguably construing or applying the contract
and acting within the scope of his authority.” Misco, 484 The Company terms the supplemental award, referencing
U.S. at 38. If the arbitrator’s award “draws its essence from the $3 add on, as a misinterpretation of its meaning within the
No. 02-3773 Sterling China Co. v. Glass, Molders, 19 20 Sterling China Co. v. Glass, Molders, No. 02-3773
Pottery, Plastics & Allied Workers Pottery, Plastics & Allied Workers
Local No. 24, et al. Local No. 24, et al.
CBA. Nevertheless, courts ultimately cannot weigh the _____________________
merits of the grievance or reverse simply because they
disagree with the result of the interpretation of the arbitral CONCURRENCE
award. Beacon, 114 F.3d at 599-600. Given that the intent of _____________________
Article 22, Section 7 of the CBA was to ensure that all
workers would be accurately compensated for changed duties DAVID A. NELSON, Circuit Judge, concurring. I agree
that would in certain circumstance be unknown to the that the Union’s effort to enforce the 2001 version of the
workers, it follows that the supplemental arbitration award arbitration award is barred neither by the functus officio
fulfills that intent by clarifying the prescribed compensation doctrine nor by the Ohio statute of limitations to which we
due to the Longaberger workers. Therefore, whether the must look in the absence of an applicable federal statute.
arbitrator correctly determined the award or not, the district Enforcement would be barred, however, if the decision
court’s ruling may not be reversed on review since the rendered by the arbitrator in 2001, instead of being a
supplemental award ultimately drew its essence from the clarification of a point left ambiguous in the 1998 award,
CBA. constitutes a reversal of the “incentive rate” portion of that
award. I write separately to outline my reasons for
CONCLUSION concluding that the 2001 decision is in fact a clarification of
the earlier award and not a reversal.
For the aforementioned reasons, this Court AFFIRMS the
district court’s order. I begin with the collective bargaining agreement, Article 21
of which establishes certain “base wage rates,” effective
February 15, 1993, for each of six different wage grades. (An
appendix to the agreement parcels out numerous individual
job classifications among the six wage grades; under the
heading “Glost Warehouse,” the appendix identifies a
“Packer” classification that is assigned to “Wage Grade # 3”
— albeit at a higher hourly rate ($7.35) than most other wage
grade 3 jobs.) Article 21 goes on to prescribe a series of
“general wage increases” that are to be “added to the base
daywork rate” and “factored into base incentive rates” in
accordance with a timetable set forth in the agreement. As far
as the “Packer” classification is concerned, the appendix
provides for periodic increases that culminate in a base rate of
$7.67 per hour effective August 12, 1996.
The traditional glost packer job was an “incentive job,” as
company official Eric Fadale evidently explained in
testimony before the arbitrator. The traditional glost packers
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Pottery, Plastics & Allied Workers Pottery, Plastics & Allied Workers
Local No. 24, et al. Local No. 24, et al.
initially received incentive pay geared to “down time and the rate that they were paid and the higher base rate that has
amount of cartons that were packed in a given time frame,” been paid to the Glost Packer of traditional ware.”
according to a declaration executed by Mr. Fadale in (Emphasis supplied.)
December of 2001.1
The evidence by which the arbitrator was persuaded that the
In his 1998 award sustaining the union’s grievance, the incentive rate applicable to traditional glost packers should
arbitrator held that although the employees who had packed not be applied to Longaberger workers is summarized in the
Longaberger ware were entitled to the wage grade 3 rate for Fadale declaration as follows:
glost packer work, they were not entitled to the incentive rate:
“In good industrial engineering practices, incentive
“I am persuaded by the Company’s evidence with systems are not portable. They cannot be moved from
respect to the reasons for not applying the incentive rate one job to the next just as a result of similarity. Incentive
to the Packers’ work on Longaberger ware. In systems are designed for a specific job; they are based on
establishing an incentive rate, the mechanized nature of the parameters of that job such as the amount of work
the Glost Packer’s work on traditional ware is a factor that is being done if it is a piecework plan, parameters
which is entitled to great weight. Moreover, also of such as down time that would be incurred on the job,
importance to the establishment of an incentive wage rate different things like that. The equipment would help
are such factors as a time study, proper sequence of the drive the setup of it; it may not be a parameter in the
job and the allowances which are made, for example, determination of monies from the incentive system, but
with respect to ‘downtime’ or ‘machine breakdowns’. it would be a factor in setting up the initial incentive
Although these factors are of great weight in establishing system.”
an incentive rate for the Glost Packer of traditional ware,
. . . the employees who have worked on the Longaberger The incentive pay system for traditional glost packers was
ware are entitled to the same base wage rate as the Glost changed, at some point in time, to a system that simply added
Packers of traditional ware. Accordingly, employees a fixed dollar amount to the packers’ hourly base rate. As the
who have performed the Longaberger job since the fall of Fadale declaration explains,
1994 [when the Longaberger line was introduced], are
entitled to receive the difference between the base wage “The numbers that were typically arrived at as a result
of [the original] incentive system [were] turned into an
hourly amount as a result of the existence of the previous
1
This declaration w as intend ed to apprise the d istrict court of the
incentive system. That amount is added on to the
substance of testimony given by Fadale before the arbitrator on April 21, packers’ base rate.”
1998. The district court questioned whether “dec larations” can be given
any consideration in summary jud gment pro ceedings, since Rule 56(c), Because the amount of the add-on ($3 per hour) approximated
Fed. R. Civ. P., authorizes consideration of “affidavits,” not declarations. numbers that had typically been produced under the incentive
Under 28 U.S.C. § 1746 , however, an unsworn declaration has the same system designed for the traditional glost packing line, Mr.
force and effect as an affidavit if it recites — as Fadale’s declaration does
— that it was executed “und er penalty of perjury.”
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Local No. 24, et al. Local No. 24, et al.
Fadale maintained that the add-on “could not be transferred” thought, I believe that what the arbitrator said in 2001 can be
to the Longaberger work. reconciled with what he said in 1998.
The arbitrator clearly was persuaded that the incentive rate The arbitrator did not say, in 2001, that Longaberger
could not be transferred, but it is not clear that he was workers were entitled to the incentive rate that the packers of
persuaded the $3 add-on could not be transferred either. The traditional glost ware were receiving, ex hypothesi, in the fall
company argues in its brief on appeal that the add-on “is the of 1994. Instead, as I understand him, he was saying that
incentive rate,” but Mr. Fadale himself drew a distinction when the packers of traditional ware began receiving a
between the variable numbers generated by the incentive composite rate determined by adding a flat $3 per hour to the
system and the fixed number by which the base rate was base pay specified in the collective bargaining agreement, the
increased after the incentive system was turned into a fixed- Longaberger workers were entitled to begin receiving the
hourly-amount system. same composite rate. The original decision not having made
it clear whether Longaberger workers would or would not
If I thought that the arbitrator understood the change in receive the composite rate once it was introduced for workers
systems to have occurred before the fall of 1994, when the handling the traditional product, the arbitrator could have
company began producing items for Longaberger, it would be gone either way on this question without contradicting the
difficult for me to avoid the conclusion that in saying the original award.
incentive rate could not be applied to the Longaberger work,
the arbitrator must have meant that the $3 add-on could not be I myself might think it wrongheaded, after denying
so applied. If there was no longer a true incentive system in Longaberger workers the incentive pay received by their
place when the Longaberger line was introduced, what could counterparts on the traditional product line, to award the
the arbitrator possibly have been referring to, when he held Longaberger people the $3 add-on when it replaced the
“the incentive rate” inapplicable to Longaberger workers, incentive pay. It was not my opinion, however, by which the
other than the add-on that had evolved from the incentive parties to the collective bargaining agreement undertook to be
system? If, on the other hand, the arbitrator understood that bound; what they bargained for was the arbitrator’s opinion,
the incentive system was still being used in the fall of 1994, not mine. And I am not so sure it would be unreasonable to
it is conceivable that the arbitrator was focusing on that conclude that the considerations which precluded the transfer
system and was not focusing on the $3 add-on that of a fluctuating incentive rate did not apply to the transfer of
subsequently replaced it. a rate which, unlike the incentive rate, never fluctuated in
accordance with output or downtime. In any event, this is
I have found nothing in the record establishing what (if precisely the sort of determination the parties agreed to let the
any) evidence was presented to the arbitrator as to when the arbitrator make.
variable incentive pay was replaced by the fixed add-on.
Reading the arbitrator’s awards with the deference that must Regardless of one’s opinion as to its soundness, the 2001
be accorded them, however, I conclude that the arbitrator decision was, in my judgment, a clarification of an ambiguity
must have understood the change to have occurred after the in the original award. As such, for reasons ably explained in
startup of the Longaberger line. And if that is what he
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Local No. 24, et al. Local No. 24, et al.
Judge Clay’s opinion, the 2001 decision does not run afoul of § 2711.13 has no application to a judicial enforcement
the functus officio doctrine. proceeding.
Under Ohio caselaw, moreover, the union’s request for For all of the foregoing reasons, I concur in the affirmance
enforcement of the arbitral award as clarified does not run of the judgment rendered by the district court.
afoul of Ohio Revised Code § 2711.09. Because the statute
uses the word “may” in providing that within a one year
period after an award has been made “any party to the
arbitration may apply to the court of common pleas for an
order confirming the award,” an Ohio court of appeals has
held that “the common pleas court has the discretion to permit
summary application [for “confirmation,” which has the
effect of turning the award into a court judgment] within a
reasonable time beyond one year for good cause shown, if no
prejudice occurs to the opposing party . . . .” Russo v.
Chittick, 548 N.E.2d 314, 317 (Ohio App., Cuyahoga, 1988).
Here there was good cause for the union’s delay in applying
for enforcement of the 1998 award, and the company was not
prejudiced by the delay. As far as the 2001 decision is
concerned, of course, there was no delay; the decision is dated
April 4, 2001, and the union filed its enforcement application
on August 16, 2001.
Ohio Revised Code § 2711.13, which says that after an
arbitration award has been made any party to the proceeding
“may file a motion in the court of common pleas for an order
vacating, modifying or correcting the award,” uses mandatory
language in establishing a deadline: “Notice of a motion to
vacate, modify, or correct an award must be served upon the
adverse party or his attorney within three months after the
award is delivered to the parties in interest . . . .” Russo
provides no escape from the three-month deadline for service
of a motion to correct an award. I do not read the union’s
counterclaim as asking for correction of the award at issue
here, however. What the union asked for was a court order
“enforcing the arbitrator’s award . . . .” Ohio Revised Code