16 Wyandot, Inc. v. Local 227 No. 99-5013

argument does not relate to how or why the enforcement ofthe Archer Award would impact the outcome of this case.Thus, the district court properly determined that the Union’scounterclaim to have the Archer Award enforced is moot.

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of

the district court.

*

The Honorable James G. Carr, Unit

Northern District of Ohio, sitting by desi

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

WYANDOT, INC.,

Plaintiff/

Counter-Defendant-Appellee,

v.

LOCAL 227, UNITED FOOD

AND COMMERCIAL WORKERS

UNION,

Defendant/

Counter-Plaintiff-Appellant.

Appeal from the United St

for the Western District of Ke

No. 97-00785—John G. Heyb

Argued: Decembe

Decided and Filed: M

Before: COLE and GILMAN, 

District Jud
2 Wyandot, Inc. v. Local 227 No. 99-5013

_________________

COUNSEL

ARGUED: Jonathan D. Karmel, KARMEL & GILDEN,Chicago, Illinois, for Appellant. David B. Sandler,GREENEBAUM, DOLL & McDONALD, Louisville,Kentucky, for Appellee. ON BRIEF: Jonathan D. Karmel,

KARMEL & GILDEN, Chicago, Illinois, for Appellant.David B. Sandler, GREENEBAUM, DOLL & McDONALD,Louisville, Kentucky, for Appellee.

_________________

OPINION

_________________

JAMES G. CARR, District Judge. This is an appeal from

a labor arbitration. Wyandot, Inc. (the “Company”) filed suitin the district court to vacate the arbitration award ofArbitrator Fred Witney (the “Witney Award”), whichreinstated discharged union member, Sue Pollard. UnitedFood and Commercial Workers Union, Local 227, (the“Union”) counterclaimed to enforce the Witney Award andalso to enforce the arbitration award of Arbitrator EdwardArcher (the “Archer Award”), which required the Companyto remove absences charged against employees for missedwork due to a snow day. The district court vacated theWitney Award and found the Archer Award to be mootregarding the issues presented in this case. The Unionappeals pursuant to Section 301 of the Labor ManagementRelations Act, 29 U.S.C. § 185. For the following reasons,we AFFIRM the judgment of the district court.

BACKGROUND

I. The Witney Award

The Witney Award involved the discharge of Sue Pollard,

a member of the Union, who was terminated for excessiveabsences. Under the express terms of the Collective

No. 99-5013 Wyandcase of misinterpretation to which is a case of no interpretation. IndeArbitrator ignored the plain langua

Fourth, the district court appr

Witney Award was based on gfairness and equity instead of tAgreement. Although Arbitrator terms “fairness” and “equity” in hconcluded that these motivatiarbitrator’s decision to ignore threquirements. Here, the ArbitraAgreement’s deadlines, he did so the Company did not waive the dlax in enforcing them.

In sum, all of the four Dobbs fa

case. Thus, based on the undispArbitrator Witney’s decision deparAgreement and was properly vacaIII. Did the District Court Er

Award to be Moot?

The Union contends that the A

months before the Witney Award, the Company allegedly ignored the however, maintains that the ArchPollard’s discharge because Pollarabsences from work — not includArcher Award — to be dischargattendance policy. 

After the district court vacated th

Pollard’s grievance barred from arheld that enforcement of the Archimpact on the outcome of this cPollard’s grievance would never bUnion argues that the issue is not mentitled to attorney’s fees incurrArcher Award during the Witn
14 Wyandot, Inc. v. Local 227 No. 99-5013

5During oral argument, the Union contended that because the practice

of commencing discharge cases at Step C rather than Step A was notexplicitly written in the Agreement, the Arbitrator was interpretingambiguous contract terms when he found the July 1st letter to besufficient notice. Although, if true, this would require the district courtto affirm Arbitrator Witney’s Award, this is not what happened. Ratherthan finding any ambiguity, Arbitrator Witney explicitly determined thatthe time deadline for filing Pollard’s grievance was not met, butnevertheless concluded that the letter “cured the defect.” In other words,the arbitrator ignored the explicit time limit set forth in the Agreement.

decision conflicts with the express terms of the Agreement,and thus fails to draw from the essence of the Agreement.5

Second, the district court correctly determined that the

Witney Award imposes additional requirements not explicitlyprovided for in the Agreement. The award requires theCompany to accommodate all written demands for arbitration.This contradicts the deadlines provided in the Agreement, notto mention Arbitrator Witney’s own conclusion that thedeadlines are mandatory, and imposes additional requirementson the Company. 

Third, the district court accurately concluded that the

Witney Award is not rationally derived from the terms of theAgreement. Witney provided no support in the Agreementfor finding the grievance arbitrable. He refers to no provisionsupporting his view that the July 1st letter cured the deadlineproblems. Rather, he merely concludes that the letter is “clearand unmistakable notice.” 

The language in the Agreement regarding written notice to

the Company gives special weight to missing deadlines. Amissed deadline creates a conclusive presumption that theUnion accepts the Company’s answer to the grievance. (See

Section 6.1, Step D). Conclusive presumptions cannot beovercome by any amount of evidence to the contrary. Further,the Arbitrator’s “cure” of the deadline is not rationallyderived from the terms of Agreement. In fact, the letter andthe effect the Arbitrator gave to it contradicts the clear termsof the Agreement. This, as the district court noted, is not a

No. 99-5013 WyandBargaining Agreement (the “ACompany and the Union, a grievamust be filed in a timely manner The Agreement provides in pertin

Article 6

GRIEVANCE PROCEDURE Section 6.1 Any dispute, coarising from alleged violations oCompany shall be settled and following procedure: Step A: Any Employee and

grievance will first attconference between steward involved and h

Step B: If a grievance is not s

grievance procedure, tattempt to adjust same and the Department M

Step C: If a grievance is not s

grievance procedure, thwriting and the aggSteward, and a Union Rdesignated representatishall then attempt to se

Step D: If the grievance has 

settled and if the garbitrable under this referred to arbitration 

Section 6.2 Any disputes, co

arising from alleged violations oCompany shall be deemed, consbeen waived unless the sam
4 Wyandot, Inc. v. Local 227 No. 99-5013

1It is undisputed that, in a discharge situation, the parties commence

the grievance procedure at Step C instead of Step A. (J.A. 185). 

settlement and determination of Step (A)1 of the

Grievance Procedure of this Agreement within five (5)working days from the date on which said dispute,complaint or grievance first arose. ***Section 6.6 All time limits for the processing of

grievances, up to and including the actual appeal inwriting to arbitration, shall be deemed mandatoryrequirements and the failure to comply with suchspecified time limits shall cause the grievance to bebarred and considered completely disposed of from thestandpoint of the Company, the Union and theEmployee or Employees involved. However, it isunderstood that the parties, through mutual agreement,may extend or waive the time limits of any of the abovementioned steps of the grievance procedure.Section 6.7 The function of the Arbitrator shall be of ajudicial rather than a legislative nature. The Arbitratorshall not have the authority to add to, ignore or modifyany of the terms or provisions of the Agreement. TheArbitrator shall never in any degree or to any extentsubstitute his judgment for the Company’s judgment,

and where matters of judgment are involved (if the caseis otherwise arbitrable under this Agreement) he shall belimited to deciding whether or not the Company actedcapriciously or in bad faith. . . . Subject to theforegoing qualifications and limitations, theArbitrator’s award shall be final and binding upon the

Company and the Union and the aggrieved Employee orEmployees.Section 6.8 If the Union fails, refuses, or declines to

prosecute a grievance on behalf of an Employee, or if theCompany and the Union settle any grievance on behalf ofan Employee hereunder, the Employee who has filedsuch grievance or on whose behalf it has been filed shall

No. 99-5013 Wyand

4Even if the ten-day deadline app

Agreement, the July 1, 1996 letter was to

Section 6.7 The function of the judicial rather than of a legislativshall not have the authority to aany of the terms or provisions oIn the instant matter, the district 

judgment for the judgment of the arthe Dobbs factors and properly foundecision departed from the essenc

First, the district court held Wi

with the express terms of the Agrletter, on which Witney relied to finis inconsequential to the determinagrievance was timely filed. Althouletter clarified the Union’s intentgrievance, the fact remains that th

Under the express terms of the 

was required to be submitted witPollard’s termination on May 31, 1with such times limits “shall cause and considered completely disposethe Company, the Union and the EmAgreement is there a provision circumvent the time deadline by le

The July 1st letter — submi

Pollard’s termination — clearly requirement.4 Indeed, Witney recodid not meet the time limits set fothen, without a reasoned explanatithe letter somehow cured the defecBased on these undisputed facts, it 
12 Wyandot, Inc. v. Local 227 No. 99-5013

3Although the district court found that all four of the Dobbs factors

were present in this case, only one is required to find that the arbitratordeparted from the essence of the agreement.agreement, not the court’s construction, to which the partieshave agreed. See Misco, 484 U.S. at 37-38. Indeed, an

arbitrator’s factual errors and even misinterpretation of acollective bargaining agreement are not subject toreconsideration by the court. Id. at 36. Accordingly, thearbitrator’s decision will be upheld if it “draws its essencefrom the collective bargaining agreement,” see Discussion

Part I, supra, and is not merely the arbitrator’s “own brand of

industrial judgment.” United Steelworkers of Am. v.

Enterprise Wheel & Car Co., 363 U.S. 593, 597 (1960).

An arbitrator, however, does not have unfettered discretion.

An “arbitrator is confined to the interpretation and applicationof the collective bargaining agreement, and although he mayconstrue ambiguous contract language, he is without authorityto disregard or modify plain and unambiguous provisions.”Dobbs, Inc. v. Local 614, Int’l Brotherhood of Teamsters, 813

F.2d 85, 86 (6th Cir. 1987). When an arbitrator disregards thecollective bargaining agreement and its terms or departs fromarguably construing the contract, the court must vacate theaward. The Sixth Circuit in Dobbs identified four ways in

which an arbitrator may depart from the essence of theagreement:

(1) an award conflicts with express terms of theagreement; (2) an award imposes additional requirementsnot expressly provided in the agreement; (3) an award iswithout rational support or cannot be rationally derivedfrom the terms of the agreement, or (4) an award is basedon general considerations of fairness and equity insteadof the precise terms of the agreement.3

Dobbs, 813 F.2d at 86 (quoting National Gypsum Co. v.

United Steelworkers of Am., 793 F.2d 759, 766 (6th Cir.1986)). The requirements set forth in Dobbs also are reflected

in part in the language of the Agreement:

No. 99-5013 Wyand

thereafter be estopped to revive grievance.

(J.A. 38-39) (emphasis added).

John Holzapel, the Company’s H

mailed a letter to Sue Pollard on Mthat her employment was terminatethe Company’s Attendance PolicPollard received the termination lwritten grievance was presented t18, 1996. (J.A. 177). Under threquired to present her grievance working days of receiving notificatfive working days after June 1, 19

On June 14, 1996, a meeting wa

other grievances. (J.A. 185). Alebusiness representative, and Ben CSteward, represented the Union at talso appeared at the meeting. (Id.surprised to see Pollard, he agreed had to say while making it clear agree to waive the time limits for hHernandez asked Holzapel during waiving the time limits, but HMoreover, at the meeting — threceived her termination letter — received a written grievance regard(Id.). 

Seventeen days after Pollard rece

on June 18, 1996, the Union submiher behalf. (Id. at 185-186). In informed the Union in writing that in accordance with the time deAgreement and therefore would be 

Grievance 5316, pertaining to Suwas not submitted in a timgrievance is denied. Sue Poll
6 Wyandot, Inc. v. Local 227 No. 99-5013

5/31/96. Grievance was not submitted to Company until6/18/96.In addition, the Company denied two other grievances in

the same letter because neither had been submitted in a timelymanner under the grievance procedure of the Agreement.

On July 1, 1996, the Union mailed a letter to the Company

advising it that the Union still was submitting Pollard’sgrievance to arbitration. (Id.). Pollard’s grievance was then

presented to Arbitrator Fred Witney. Two issues were raisedat the hearing: (1) whether the grievance was arbitrable; and(2) if so, whether Pollard was terminated for just cause. Atarbitration, the Company maintained that Pollard’s grievancewas untimely, while the Union asserted that Pollard’sdischarge did not conform to the Company’s No-FaultAttendance Policy.

Arbitrator Witney issued an Award on October 20, 1997,

reinstating Pollard. Witney recognized that the Companydischarged Pollard effective on May 31, 1996 and that thewritten grievance protesting her discharge was not filed untilJune 18, 1996. In addition, Witney acknowledged that“[t]here is no showing that Wyandot has been lax in theenforcement of the time limits. Likewise, no testimony wasoffered by either side to show that time limits were eitherwaived or extended in this case.” (Id. at 186). Nevertheless,the Arbitrator deemed the Agreement deadlines inapplicable:

As said, Wyandot discharged Pollard effective May 30,1996. Accordingly, she or the Union had five (5) days(Section 6.2) or ten (10) days (Section 6.1) Step D to filethe grievance. Since it was not submitted until June 18,1996, the Company asserts the grievance was not timelyand thus not arbitrable. To be sure about it, theArbitrator fully understands the position of the Company.Scores of decisions demonstrate that enforcement of timelimits has frequently been upheld by many arbitrators.Indeed, the published and unpublished cases of theinstant Arbitrator are proof positive of his understandingthat time limits hold a venerable place in the arbitration

No. 99-5013 Wyand

2Moreover, it is important to note tha

the time deadline as “procedural,” it is nforth in the Agreement is not analogous to the time bar is explicitly set forth in the Aa bargained-for provision. In this sense, this substantive, not procedural.should be left to the arbitrator.” also Misco, 484 U.S. at 39-40 (sam

Accordingly, the Union’s relia

standard of review set forth in Misthe matter at issue was subject to finding that the matter was arbitrareviewed the arbitrator’s “proceduthe merits of the dispute. In the inchallenges whether the matter is arfound that the Pollard dispute was nnever examined the arbitrator’s “prthe standard of review set forth in the instant matter.2

In sum, the district court appli

review in vacating the Witney Aexamined whether the Pollard grdetermining whether the Witney Athe Agreement. See Interstate Bra

(rejecting Union’s contention tharegarding arbitrability is revie

“affirmative misconduct” standard standard of review requires the coudecision draws its essence from agreement).II. Did the District Court Subst

the Agreement for That of A

The Supreme Court has made cle

arbitrator’s decision substantial darbitrator’s construction of th
10 Wyandot, Inc. v. Local 227 No. 99-5013

arbitrability only if it finds that the arbitrator’s decision “failsto draw its essence from the collective bargainingagreement”).

In the instant matter, the district court vacated Arbitrator

Witney’s decision under the correct standard — the courtfound that the Witney Award did not draw its essence fromthe Agreement. The Union, however, argues that this is thewrong standard of review. Because the applicability of timelimits provided in the Agreement is a procedural question, theUnion contends, the district court must determine that thearbitrator acted in bad faith or was guilty of misconduct inorder to vacate the award.

It is true that in cases where “procedural” decisions are

reviewed, the Supreme Court has ruled that federal courts areempowered to set aside an arbitration award only when thearbitrator acted in bad faith or was guilty of misconduct.United Paperworks Intern. Union v. Misco, 484 U.S. 29, 40(1987). But “procedural” decisions made in arbitration aredifferent than those made in other contexts. As used in thearbitration setting, procedural decisions occur when thearbitrator is faced with an issue that is not clearly specified inthe collective bargaining agreement while resolving the meritsof the dispute. For example, the Supreme Court in Miscoruled that the arbitrator’s decision to limit evidence profferedto resolve the merits of a dispute was procedural and best leftto the arbitrator. Misco, 484 U.S. at 39-40. This was because

the evidentiary decision was in effect “a construction of whatthe contract required when deciding discharge cases.” Id. at

39. 

To make such a “procedural” decision, it must previously

be determined that the matter at issue is subject to arbitration.In John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557-58 (1964), the Supreme Court held that “[o]nce it isdetermined . . . that the parties are obligated to submit thesubject matter to arbitration, ‘procedural’ questions whichgrow out of the dispute and bear on its final disposition

No. 99-5013 Wyand

process. Not for the Union’s July 1, 1996, the Arbitrator Pollard’s grievance upholding 

(Id. at 187-188) (emphasis added)

Although Arbitrator Witney rec

letter from the Union (advising proceeding to arbitration) did noforth in the Agreement, he deter“clear and unmistakable notice to intended to arbitrate the Pollard gr“overcomes whatever defects [the Ulimits.” (Id. at 189). Based on th

that Pollard’s grievance was arbitr

The Company subsequently filed 

vacate the Witney Award. In exdistrict court recognized that courauthority to review arbitration awaerrors and even misinterpretation subject to judicial reconsideration. without authority to disregard ounambiguous provisions of the Ag

The district court then found 

timely grieve Pollard’s dischargeignored the Agreement’s deadlines the Company did not waive the deain enforcing the grievance proceduthe lower court concluded:

[S]imply because the Union anWitney Award draws its essence not necessarily make it so. The Pollard’s grievance and the Jutimely fails to draw its essence Furthermore, the Arbitrator ig[Agreement] in finding the grieArbitrator Witney’s award will 
8 Wyandot, Inc. v. Local 227 No. 99-5013

(Id. at 48) (internal citations omitted). II. The Archer Award

Sue Pollard and other Wyandot employees were considered

absent under the Company’s no-fault attendance policy formissing work on January 7 and 8, 1996. (Pollard missed onlyJanuary 8). The Union submitted a class grievance toarbitration before Arbitrator Archer claiming that theabsences were due to bad weather and should be excused. OnApril 18, 1997, Arbitrator Archer agreed and ordered theCompany to remove these infractions, including the infractionfor Pollard’s January 8th absence. 

The Company allegedly did not comply with the Archer

Award and failed to remove the January 8th absence fromPollard’s record. Then, in May 1996, the Companydischarged Pollard for excessive absences under its no-faultattendance policy. Under the no-fault policy, employees areterminated after 13 unexcused absences. Pollard had 14unexcused absences including the January 8th absence.

After the Company filed suit in the district court to vacate

the Witney Award, the Union counterclaimed to enforce theArcher Award as well as the Witney Award. The districtcourt, however, held the Archer Award to be moot to theoutcome of this case:

Enforcement of the Archer Award would not change thisresult. As a result of vacating the Witney Award, themerits of Pollard’s grievance and the specificenforcement of the Archer Award are no longer materialto this case. Thus, the Union’s counterclaim to have theArcher Award enforced is now moot. ***Enforcement of the Archer Award with regard to Pollardalone would not have prevented her dismissal. At thetime of her discharge, she had fourteen occurrences onher attendance record when only thirteen are necessary toresult in termination. Thus, enforcing the Archer Awardwould have no substantive effect on Pollard. It would

No. 99-5013 Wyand

only help her if the Witney AwPresumably, the Archer Award every other applicable circumsta

DISCUSSI

The principal issues on appeal a

grievance is arbitrable, (2) Arbitratoits essence from the Agreement, anmoot regarding the issues of this c

The Union argues that the distr

the Witney Award because (1) it aof review, and (2) it improperly suof the Agreement for that of ArbitUnion contends that the district cArcher Award to be moot even Witney Award because the enforceaffects other remedies available to 

The Company argues that the dis

the Witney Award because (1) tharbitrable, and (2) the arbitrator edisregarding the plain and unambAgreement. Thus, according to tAward did not draw its essence Agreement. Moreover, the Comdistrict court properly held the Abecause it has no impact on the ouI. Did the District Court Apply 

Review?

An arbitrator’s decision on the is

affirmed “unless it fails to ‘dracollective bargaining agreement.’” Teamsters, Local 1038, 898 F.2d 1

(citing Eberhard Foods, Inc. v. H

(6th Cir. 1989)). See also Inters

Teamsters Local 135, 909 F.2d (holding that a court could overtur