                                                                           RECOMMENDED FOR FULL-TEXT PUBLICATION
16   Wyandot, Inc. v. Local 227                 No. 99-5013                     Pursuant to Sixth Circuit Rule 206
                                                                        ELECTRONIC CITATION: 2000 FED App. 0085P (6th Cir.)
                                                                                    File Name: 00a0085p.06
argument does not relate to how or why the enforcement of
the Archer Award would impact the outcome of this case.
Thus, the district court properly determined that the Union’s
counterclaim to have the Archer Award enforced is moot.         UNITED STATES COURT OF APPEALS
                     CONCLUSION                                                   FOR THE SIXTH CIRCUIT
                                                                                    _________________
  For the foregoing reasons, we AFFIRM the judgment of

                                                                                                  ;
the district court.

                                                                                                   
                                                                 WYANDOT, INC.,
                                                                                                   
                                                                                    Plaintiff/
                                                                                                   
                                                                  Counter-Defendant-Appellee,
                                                                                                   
                                                                                                      No. 99-5013

                                                                                                   
                                                                            v.                      >
                                                                                                   
                                                                                                   
                                                                                                   
                                                                 LOCAL 227, UNITED FOOD

                                                                                                   
                                                                 AND COMMERCIAL WORKERS

                                                                                    Defendant/ 
                                                                 UNION,
                                                                                                   
                                                                  Counter-Plaintiff-Appellant. 
                                                                                                  1
                                                                       Appeal from the United States District Court
                                                                    for the Western District of Kentucky at Louisville.
                                                                   No. 97-00785—John G. Heyburn II, District Judge.
                                                                                  Argued: December 7, 1999
                                                                               Decided and Filed: March 9, 2000
                                                                   Before: COLE and GILMAN, Circuit Judges; CARR,
                                                                                   District Judge.*




                                                                    *
                                                                     The Honorable James G. Carr, United States District Judge for the
                                                                Northern District of Ohio, sitting by designation.

                                                                                                  1
2    Wyandot, Inc. v. Local 227                 No. 99-5013     No. 99-5013                  Wyandot, Inc. v. Local 227      15

                   _________________                            case of misinterpretation to which the court must defer. This
                                                                is a case of no interpretation. Indeed, this is a case where the
                        COUNSEL                                 Arbitrator ignored the plain language of the Agreement.
ARGUED: Jonathan D. Karmel, KARMEL & GILDEN,                       Fourth, the district court appropriately found that the
Chicago, Illinois, for Appellant.   David B. Sandler,           Witney Award was based on general considerations of
GREENEBAUM, DOLL & McDONALD, Louisville,                        fairness and equity instead of the precise terms of the
Kentucky, for Appellee. ON BRIEF: Jonathan D. Karmel,           Agreement. Although Arbitrator Witney avoided using the
KARMEL & GILDEN, Chicago, Illinois, for Appellant.              terms “fairness” and “equity” in his award, the district court
David B. Sandler, GREENEBAUM, DOLL & McDONALD,                  concluded that these motivations must underlie the
Louisville, Kentucky, for Appellee.                             arbitrator’s decision to ignore the Agreement’s deadlines
                                                                requirements. Here, the Arbitrator not only ignored the
                   _________________                            Agreement’s deadlines, he did so while acknowledging that
                                                                the Company did not waive the deadlines and had not been
                       OPINION                                  lax in enforcing them.
                   _________________
                                                                  In sum, all of the four Dobbs factors were violated in this
   JAMES G. CARR, District Judge. This is an appeal from        case. Thus, based on the undisputed facts, it is clear that
a labor arbitration. Wyandot, Inc. (the “Company”) filed suit   Arbitrator Witney’s decision departed from the essence of the
in the district court to vacate the arbitration award of        Agreement and was properly vacated by the district court.
Arbitrator Fred Witney (the “Witney Award”), which
reinstated discharged union member, Sue Pollard. United         III.   Did the District Court Err in Finding the Archer
Food and Commercial Workers Union, Local 227, (the                     Award to be Moot?
“Union”) counterclaimed to enforce the Witney Award and
also to enforce the arbitration award of Arbitrator Edward         The Union contends that the Archer Award, issued six
Archer (the “Archer Award”), which required the Company         months before the Witney Award, must be enforced because
to remove absences charged against employees for missed         the Company allegedly ignored the decision. The Company,
work due to a snow day. The district court vacated the          however, maintains that the Archer Award does not affect
Witney Award and found the Archer Award to be moot              Pollard’s discharge because Pollard still accumulated enough
regarding the issues presented in this case. The Union          absences from work — not including the day at issue in the
appeals pursuant to Section 301 of the Labor Management         Archer Award — to be discharged under the Company’s
Relations Act, 29 U.S.C. § 185. For the following reasons,      attendance policy.
we AFFIRM the judgment of the district court.
                                                                  After the district court vacated the Witney Award rendering
                     BACKGROUND                                 Pollard’s grievance barred from arbitration, the district court
                                                                held that enforcement of the Archer Award would have no
I.   The Witney Award                                           impact on the outcome of this case because the merits of
                                                                Pollard’s grievance would never be reached. On appeal, the
  The Witney Award involved the discharge of Sue Pollard,       Union argues that the issue is not moot because the Union is
a member of the Union, who was terminated for excessive         entitled to attorney’s fees incurred from re-litigating the
absences. Under the express terms of the Collective             Archer Award during the Witney arbitration. But this
14       Wyandot, Inc. v. Local 227                        No. 99-5013        No. 99-5013                Wyandot, Inc. v. Local 227        3

decision conflicts with the express terms of the Agreement,                   Bargaining Agreement (the “Agreement”) between the
and thus fails to draw from the essence of the Agreement.5                    Company and the Union, a grievance protesting a discharge
                                                                              must be filed in a timely manner or the grievance is barred.
  Second, the district court correctly determined that the                    The Agreement provides in pertinent part:
Witney Award imposes additional requirements not explicitly
provided for in the Agreement. The award requires the                                                  Article 6
Company to accommodate all written demands for arbitration.
This contradicts the deadlines provided in the Agreement, not                   GRIEVANCE PROCEDURE AND ARBITRATION
to mention Arbitrator Witney’s own conclusion that the
deadlines are mandatory, and imposes additional requirements                    Section 6.1 Any dispute, complaints or grievances
on the Company.                                                                 arising from alleged violations of the Agreement by the
                                                                                Company shall be settled and determined through the
  Third, the district court accurately concluded that the                       following procedure:
Witney Award is not rationally derived from the terms of the
Agreement. Witney provided no support in the Agreement                          Step A: Any Employee and/or steward having a
for finding the grievance arbitrable. He refers to no provision                         grievance will first attempt to adjust same by
supporting his view that the July 1st letter cured the deadline                         conference between the Employee and/or
problems. Rather, he merely concludes that the letter is “clear                         steward involved and his or her Area Manager.
and unmistakable notice.”
                                                                                Step B: If a grievance is not settled in Step A of the
  The language in the Agreement regarding written notice to                             grievance procedure, the Employee will next
the Company gives special weight to missing deadlines. A                                attempt to adjust same with his or her steward
missed deadline creates a conclusive presumption that the                               and the Department Manager.
Union accepts the Company’s answer to the grievance. (See
Section 6.1, Step D). Conclusive presumptions cannot be                         Step C: If a grievance is not settled in Step B of the
overcome by any amount of evidence to the contrary. Further,                            grievance procedure, then it shall be reduced to
the Arbitrator’s “cure” of the deadline is not rationally                               writing and the aggrieved Employee, the
derived from the terms of Agreement. In fact, the letter and                            Steward, and a Union Representative . . . and a
the effect the Arbitrator gave to it contradicts the clear terms                        designated representative of the Company . . .
of the Agreement. This, as the district court noted, is not a                           shall then attempt to settle the grievance.
                                                                                Step D: If the grievance has not been satisfactorily
     5
                                                                                        settled and if the grievance is otherwise
      During oral argument, the Union contended that because the practice               arbitrable under this Agreement, it may be
of commencing discharge cases at Step C rather than Step A was not                      referred to arbitration . . .
explicitly written in the Agreement, the Arbitrator was interpreting
ambiguous contract terms when he found the July 1st letter to be
sufficient notice. Although, if true, this would require the district court     Section 6.2 Any disputes, complaints or grievances
to affirm Arbitrator Witney’s Award, this is not what happened. Rather          arising from alleged violations of this Agreement by the
than finding any ambiguity, Arbitrator Witney explicitly determined that        Company shall be deemed, considered and held to have
the time deadline for filing Pollard’s grievance was not met, but               been waived unless the same are presented for
nevertheless concluded that the letter “cured the defect.” In other words,
the arbitrator ignored the explicit time limit set forth in the Agreement.
4        Wyandot, Inc. v. Local 227                        No. 99-5013        No. 99-5013                   Wyandot, Inc. v. Local 227       13

    settlement and determination of Step (A)1 of the                            Section 6.7 The function of the Arbitrator shall be of a
    Grievance Procedure of this Agreement within five (5)                       judicial rather than of a legislative nature. The Arbitrator
    working days from the date on which said dispute,                           shall not have the authority to add to, ignore or modify
    complaint or grievance first arose. ***                                     any of the terms or provisions of the Agreement.
    Section 6.6 All time limits for the processing of                           In the instant matter, the district court did not substitute its
    grievances, up to and including the actual appeal in                      judgment for the judgment of the arbitrator. Rather, it applied
    writing to arbitration, shall be deemed mandatory                         the Dobbs factors and properly found that Arbitrator Witney’s
    requirements and the failure to comply with such                          decision departed from the essence of the Agreement.
    specified time limits shall cause the grievance to be
    barred and considered completely disposed of from the                        First, the district court held Witney’s decision conflicted
    standpoint of the Company, the Union and the                              with the express terms of the Agreement. The July 1, 1996
    Employee or Employees involved. However, it is                            letter, on which Witney relied to find the grievance arbitrable,
    understood that the parties, through mutual agreement,                    is inconsequential to the determination of whether the Pollard
    may extend or waive the time limits of any of the above-                  grievance was timely filed. Although Witney decided that the
    mentioned steps of the grievance procedure.                               letter clarified the Union’s intention to arbitrate Pollard’s
                                                                              grievance, the fact remains that the notice was too late.
    Section 6.7 The function of the Arbitrator shall be of a
    judicial rather than a legislative nature. The Arbitrator                    Under the express terms of the Agreement, the grievance
    shall not have the authority to add to, ignore or modify                  was required to be submitted within five working days of
    any of the terms or provisions of the Agreement. The                      Pollard’s termination on May 31, 1996. The failure to comply
    Arbitrator shall never in any degree or to any extent                     with such times limits “shall cause the grievance to be barred
    substitute his judgment for the Company’s judgment,                       and considered completely disposed of from the standpoint of
    and where matters of judgment are involved (if the case                   the Company, the Union and the Employee.” Nowhere in the
    is otherwise arbitrable under this Agreement) he shall be                 Agreement is there a provision allowing a grievant to
    limited to deciding whether or not the Company acted                      circumvent the time deadline by letter of intent.
    capriciously or in bad faith. . . . Subject to the
    foregoing qualifications and limitations, the                               The July 1st letter — submitted over a month after
    Arbitrator’s award shall be final and binding upon the                    Pollard’s termination  — clearly does not conform to this
    Company and the Union and the aggrieved Employee or                       requirement.4 Indeed, Witney recognized that the letter itself
    Employees.                                                                did not meet the time limits set forth in the Agreement. But
                                                                              then, without a reasoned explanation, Witney concluded that
    Section 6.8 If the Union fails, refuses, or declines to                   the letter somehow cured the defect regarding time deadlines.
    prosecute a grievance on behalf of an Employee, or if the                 Based on these undisputed facts, it is clear that the arbitrator’s
    Company and the Union settle any grievance on behalf of
    an Employee hereunder, the Employee who has filed
    such grievance or on whose behalf it has been filed shall

     1                                                                            4
      It is undisputed that, in a discharge situation, the parties commence        Even if the ten-day deadline applied from Section 6.1 of the
the grievance procedure at Step C instead of Step A. (J.A. 185).              Agreement, the July 1, 1996 letter was too late.
12       Wyandot, Inc. v. Local 227                        No. 99-5013        No. 99-5013                  Wyandot, Inc. v. Local 227        5

agreement, not the court’s construction, to which the parties                   thereafter be estopped to revive or further prosecute said
have agreed. See Misco, 484 U.S. at 37-38. Indeed, an                           grievance.
arbitrator’s factual errors and even misinterpretation of a
collective bargaining agreement are not subject to                            (J.A. 38-39) (emphasis added).
reconsideration by the court. Id. at 36. Accordingly, the
arbitrator’s decision will be upheld if it “draws its essence                    John Holzapel, the Company’s Human Resource Manager,
from the collective bargaining agreement,” see Discussion                     mailed a letter to Sue Pollard on May 31, 1996, notifying her
Part I, supra, and is not merely the arbitrator’s “own brand of               that her employment was terminated because of a violation of
industrial judgment.” United Steelworkers of Am. v.                           the Company’s Attendance Policy. (J.A. 176). Although
Enterprise Wheel & Car Co., 363 U.S. 593, 597 (1960).                         Pollard received the termination letter on June 1, 1996, no
                                                                              written grievance was presented to the Company until June
  An arbitrator, however, does not have unfettered discretion.                18, 1996. (J.A. 177). Under the Agreement Pollard was
An “arbitrator is confined to the interpretation and application              required to present her grievance in writing within five (5)
of the collective bargaining agreement, and although he may                   working days of receiving notification of her discharge — i.e.,
construe ambiguous contract language, he is without authority                 five working days after June 1, 1996. (J.A. 157, 185).
to disregard or modify plain and unambiguous provisions.”
Dobbs, Inc. v. Local 614, Int’l Brotherhood of Teamsters, 813                   On June 14, 1996, a meeting was scheduled to discuss two
F.2d 85, 86 (6th Cir. 1987). When an arbitrator disregards the                other grievances. (J.A. 185). Alex Hernandez, the Union’s
collective bargaining agreement and its terms or departs from                 business representative, and Ben Campbell, the Chief Union
arguably construing the contract, the court must vacate the                   Steward, represented the Union at the meeting. (Id.). Pollard
award. The Sixth Circuit in Dobbs identified four ways in                     also appeared at the meeting. (Id.). Although Holzapel was
which an arbitrator may depart from the essence of the                        surprised to see Pollard, he agreed to listen to what the Union
agreement:                                                                    had to say while making it clear that the Company did not
                                                                              agree to waive the time limits for her grievance. (Id.). In fact,
  (1) an award conflicts with express terms of the                            Hernandez asked Holzapel during the meeting to consider
  agreement; (2) an award imposes additional requirements                     waiving the time limits, but Holzapel refused. (Id.).
  not expressly provided in the agreement; (3) an award is                    Moreover, at the meeting — thirteen days after Pollard
  without rational support or cannot be rationally derived                    received her termination letter — the Company still had not
  from the terms of the agreement, or (4) an award is based                   received a written grievance regarding Pollard’s termination.
  on general considerations of fairness and  equity instead                   (Id.).
  of the precise terms of the agreement.3
                                                                                Seventeen days after Pollard received her termination letter,
Dobbs, 813 F.2d at 86 (quoting National Gypsum Co. v.                         on June 18, 1996, the Union submitted a written grievance on
United Steelworkers of Am., 793 F.2d 759, 766 (6th Cir.                       her behalf. (Id. at 185-186). In response, the Company
1986)). The requirements set forth in Dobbs also are reflected                informed the Union in writing that the grievance was not filed
in part in the language of the Agreement:                                     in accordance with the time deadlines set forth in the
                                                                              Agreement and therefore would be denied:
     3                                                                          Grievance 5316, pertaining to Sue Pollard (termination),
     Although the district court found that all four of the Dobbs factors
were present in this case, only one is required to find that the arbitrator     was not submitted in a timely manner, therefore,
departed from the essence of the agreement.                                     grievance is denied. Sue Pollard was terminated on
6      Wyandot, Inc. v. Local 227                  No. 99-5013    No. 99-5013                       Wyandot, Inc. v. Local 227            11

    5/31/96. Grievance was not submitted to Company until         should be left to the arbitrator.” Id. (emphasis added); see
    6/18/96.                                                      also Misco, 484 U.S. at 39-40 (same).
  In addition, the Company denied two other grievances in            Accordingly, the Union’s reliance on the “procedural”
the same letter because neither had been submitted in a timely    standard of review set forth in Misco is misplaced. In Misco,
manner under the grievance procedure of the Agreement.            the matter at issue was subject to arbitration, and — after
                                                                  finding that the matter was arbitrable — the Supreme Court
   On July 1, 1996, the Union mailed a letter to the Company      reviewed the arbitrator’s “procedural” decisions relating to
advising it that the Union still was submitting Pollard’s         the merits of the dispute. In the instant matter, the Company
grievance to arbitration. (Id.). Pollard’s grievance was then     challenges whether the matter is arbitrable. The district court
presented to Arbitrator Fred Witney. Two issues were raised       found that the Pollard dispute was not arbitrable and therefore
at the hearing: (1) whether the grievance was arbitrable; and     never examined the arbitrator’s “procedural” decisions. Thus,
(2) if so, whether Pollard was terminated for just cause. At      the standard of review set forth in Misco is not applicable to
arbitration, the Company maintained that Pollard’s grievance      the instant matter.2
was untimely, while the Union asserted that Pollard’s
discharge did not conform to the Company’s No-Fault                  In sum, the district court applied the proper standard of
Attendance Policy.                                                review in vacating the Witney Award. Namely, the court
                                                                  examined whether the Pollard grievance was arbitrable by
  Arbitrator Witney issued an Award on October 20, 1997,          determining whether the Witney Award drew its essence from
reinstating Pollard. Witney recognized that the Company           the Agreement. See Interstate Brands, 909 F.2d at 890-891
discharged Pollard effective on May 31, 1996 and that the         (rejecting Union’s contention that an arbitrator’s decision
written grievance protesting her discharge was not filed until    regarding arbitrability is reviewed under the Misco
June 18, 1996. In addition, Witney acknowledged that              “affirmative misconduct” standard and holding that the proper
“[t]here is no showing that Wyandot has been lax in the           standard of review requires the court to determine whether the
enforcement of the time limits. Likewise, no testimony was        decision draws its essence from the collective bargaining
offered by either side to show that time limits were either       agreement).
waived or extended in this case.” (Id. at 186). Nevertheless,
the Arbitrator deemed the Agreement deadlines inapplicable:       II. Did the District Court Substitute its Interpretation of
                                                                      the Agreement for That of Arbitrator Witney?
    As said, Wyandot discharged Pollard effective May 30,
    1996. Accordingly, she or the Union had five (5) days           The Supreme Court has made clear that courts must give an
    (Section 6.2) or ten (10) days (Section 6.1) Step D to file   arbitrator’s decision substantial deference because it is the
    the grievance. Since it was not submitted until June 18,      arbitrator’s construction of the collective bargaining
    1996, the Company asserts the grievance was not timely
    and thus not arbitrable. To be sure about it, the
    Arbitrator fully understands the position of the Company.         2
    Scores of decisions demonstrate that enforcement of time            Moreover, it is important to note that while the Union characterizes
    limits has frequently been upheld by many arbitrators.        the time deadline as “procedural,” it is not truly so. The time limit set
    Indeed, the published and unpublished cases of the            forth in the Agreement is not analogous to a statute of limitations. Rather,
                                                                  the time bar is explicitly set forth in the Agreement and presumably was
    instant Arbitrator are proof positive of his understanding    a bargained-for provision. In this sense, the deadline for filing grievances
    that time limits hold a venerable place in the arbitration    is substantive, not procedural.
10    Wyandot, Inc. v. Local 227                     No. 99-5013       No. 99-5013                 Wyandot, Inc. v. Local 227        7

arbitrability only if it finds that the arbitrator’s decision “fails     process. Not for the Union’s letter to Wyandot of
to draw its essence from the collective bargaining                       July 1, 1996, the Arbitrator would have denied
agreement”).                                                             Pollard’s grievance upholding her termination.
  In the instant matter, the district court vacated Arbitrator         (Id. at 187-188) (emphasis added).
Witney’s decision under the correct standard — the court
found that the Witney Award did not draw its essence from                 Although Arbitrator Witney recognized that the July 1st
the Agreement. The Union, however, argues that this is the             letter from the Union (advising the Company that it was
wrong standard of review. Because the applicability of time            proceeding to arbitration) did not meet the time limits set
limits provided in the Agreement is a procedural question, the         forth in the Agreement, he determined that the letter was
Union contends, the district court must determine that the             “clear and unmistakable notice to Wyandot that the Union
arbitrator acted in bad faith or was guilty of misconduct in           intended to arbitrate the Pollard grievance,” (id. at 188), and
order to vacate the award.                                             “overcomes whatever defects [the Union] has in terms of time
                                                                       limits.” (Id. at 189). Based on this analysis, Witney ruled
   It is true that in cases where “procedural” decisions are           that Pollard’s grievance was arbitrable. (Id.).
reviewed, the Supreme Court has ruled that federal courts are
empowered to set aside an arbitration award only when the                The Company subsequently filed suit in the district court to
arbitrator acted in bad faith or was guilty of misconduct.             vacate the Witney Award. In examining the Award, the
United Paperworks Intern. Union v. Misco, 484 U.S. 29, 40              district court recognized that courts have extremely limited
(1987). But “procedural” decisions made in arbitration are             authority to review arbitration awards. An arbitrator’s factual
different than those made in other contexts. As used in the            errors and even misinterpretation of the Agreement are not
arbitration setting, procedural decisions occur when the               subject to judicial reconsideration. An arbitrator is, however,
arbitrator is faced with an issue that is not clearly specified in     without authority to disregard or modify the plain and
the collective bargaining agreement while resolving the merits         unambiguous provisions of the Agreement. (J.A. 48).
of the dispute. For example, the Supreme Court in Misco
ruled that the arbitrator’s decision to limit evidence proffered          The district court then found that the “Union failed to
to resolve the merits of a dispute was procedural and best left        timely grieve Pollard’s discharge,” and that the arbitrator
to the arbitrator. Misco, 484 U.S. at 39-40. This was because          ignored the Agreement’s deadlines “while acknowledging that
the evidentiary decision was in effect “a construction of what         the Company did not waive the deadline and had not been lax
the contract required when deciding discharge cases.” Id. at           in enforcing the grievance procedure deadlines.” (Id.) Thus,
39.                                                                    the lower court concluded:

  To make such a “procedural” decision, it must previously               [S]imply because the Union and Witney assert that the
be determined that the matter at issue is subject to arbitration.        Witney Award draws its essence from the contract, does
In John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557-             not necessarily make it so. The Arbitrator’s finding that
58 (1964), the Supreme Court held that “[o]nce it is                     Pollard’s grievance and the July 1, 1996 letter were
determined . . . that the parties are obligated to submit the            timely fails to draw its essence from the [Agreement].
subject matter to arbitration, ‘procedural’ questions which              Furthermore, the Arbitrator ignored the terms of the
grow out of the dispute and bear on its final disposition                [Agreement] in finding the grievance arbitrable. Thus,
                                                                         Arbitrator Witney’s award will be vacated.
8      Wyandot, Inc. v. Local 227                 No. 99-5013    No. 99-5013                  Wyandot, Inc. v. Local 227       9

(Id. at 48) (internal citations omitted).                             only help her if the Witney Award were to be upheld.
                                                                      Presumably, the Archer Award will still have effect in
II. The Archer Award                                                  every other applicable circumstance. (J.A. 48, n. 6).
  Sue Pollard and other Wyandot employees were considered                                DISCUSSION
absent under the Company’s no-fault attendance policy for
missing work on January 7 and 8, 1996. (Pollard missed only         The principal issues on appeal are whether (1) the Pollard
January 8). The Union submitted a class grievance to             grievance is arbitrable, (2) Arbitrator Witney’s decision draws
arbitration before Arbitrator Archer claiming that the           its essence from the Agreement, and (3) the Archer Award is
absences were due to bad weather and should be excused. On       moot regarding the issues of this case.
April 18, 1997, Arbitrator Archer agreed and ordered the
Company to remove these infractions, including the infraction      The Union argues that the district court erred in vacating
for Pollard’s January 8th absence.                               the Witney Award because (1) it applied the wrong standard
                                                                 of review, and (2) it improperly substituted its interpretation
   The Company allegedly did not comply with the Archer          of the Agreement for that of Arbitrator Witney. Further, the
Award and failed to remove the January 8th absence from          Union contends that the district court erred in finding the
Pollard’s record. Then, in May 1996, the Company                 Archer Award to be moot even if it properly vacated the
discharged Pollard for excessive absences under its no-fault     Witney Award because the enforcement of the Archer Award
attendance policy. Under the no-fault policy, employees are      affects other remedies available to Pollard.
terminated after 13 unexcused absences. Pollard had 14
unexcused absences including the January 8th absence.              The Company argues that the district court properly vacated
                                                                 the Witney Award because (1) the Pollard grievance is not
  After the Company filed suit in the district court to vacate   arbitrable, and (2) the arbitrator exceeded his authority by
the Witney Award, the Union counterclaimed to enforce the        disregarding the plain and unambiguous provisions of the
Archer Award as well as the Witney Award. The district           Agreement. Thus, according to the Company, the Witney
court, however, held the Archer Award to be moot to the          Award did not draw its essence from the terms of the
outcome of this case:                                            Agreement. Moreover, the Company contends that the
                                                                 district court properly held the Archer Award to be moot
    Enforcement of the Archer Award would not change this        because it has no impact on the outcome of this case.
    result. As a result of vacating the Witney Award, the
    merits of Pollard’s grievance and the specific               I.     Did the District Court Apply the Wrong Standard of
    enforcement of the Archer Award are no longer material              Review?
    to this case. Thus, the Union’s counterclaim to have the
    Archer Award enforced is now moot. ***                         An arbitrator’s decision on the issue of arbitrability will be
                                                                 affirmed “unless it fails to ‘draw its essence from the
    Enforcement of the Archer Award with regard to Pollard       collective bargaining agreement.’” Vic Wertz Distributing v.
    alone would not have prevented her dismissal. At the         Teamsters, Local 1038, 898 F.2d 1136, 1140 (6th Cir. 1990)
    time of her discharge, she had fourteen occurrences on       (citing Eberhard Foods, Inc. v. Handy, 868 F.2d 890, 891
    her attendance record when only thirteen are necessary to    (6th Cir. 1989)). See also Interstate Brands v. Chaffeur,
    result in termination. Thus, enforcing the Archer Award      Teamsters Local 135, 909 F.2d 885, 891 (6th Cir. 1990)
    would have no substantive effect on Pollard. It would        (holding that a court could overturn an arbitrator’s ruling on
