      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
No. 02-3773      Sterling China Co. v. Glass, Molders,       3    4    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.

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.
No. 02-3773       Sterling China Co. v. Glass, Molders,        5    6        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.

   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.
No. 02-3773      Sterling China Co. v. Glass, Molders,         7    8    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.

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.’”)).
No. 02-3773      Sterling China Co. v. Glass, Molders,      15    16    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.

  [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
No. 02-3773          Sterling China Co. v. Glass, Molders,               21     22   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.

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.”
No. 02-3773      Sterling China Co. v. Glass, Molders,     23    24    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.

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
No. 02-3773      Sterling China Co. v. Glass, Molders,      25    26   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.

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
