16Wyandot, Inc. v. Local 227No. 99-5013argument 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.CONCLUSIONFor the foregoing reasons, weAFFIRMthe judgment ofthe district court.*The Honorable James G. Carr, United States District Judge for theNorthern District of Ohio, sitting by designation.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0085P (6th Cir.)File Name: 00a0085p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________WYANDOT,INC.,Plaintiff/Counter-Defendant-Appellee,v.LOCAL227,UNITEDFOODANDCOMMERCIALWORKERSUNION,Defendant/Counter-Plaintiff-Appellant.;>1No. 99-5013Appeal from the United States District Courtfor the Western District of Kentucky at Louisville.No. 97-00785—John G. Heyburn II, District Judge.Argued: December 7, 1999Decided and Filed: March 9, 2000Before: COLE and GILMAN, Circuit Judges; CARR,District Judge.*2Wyandot, Inc. v. Local 227No. 99-5013_________________COUNSELARGUED: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 froma 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,weAFFIRMthe judgment of the district court.BACKGROUNDI. The Witney AwardThe Witney Award involved the discharge of Sue Pollard,a member of the Union, who was terminated for excessiveabsences. Under the express terms of the CollectiveNo. 99-5013Wyandot, Inc. v. Local 22715case of misinterpretation to which the court must defer. Thisis a case of no interpretation. Indeed, this is a case where theArbitrator ignored the plain language of the Agreement.Fourth, the district court appropriately found that theWitney Award was based on general considerations offairness and equity instead of the precise terms of theAgreement. Although Arbitrator Witney avoided using theterms “fairness” and “equity” in his award, the district courtconcluded that these motivations must underlie thearbitrator’s decision to ignore the Agreement’s deadlinesrequirements. Here, the Arbitrator not only ignored theAgreement’s deadlines, he did so while acknowledging thatthe Company did not waive the deadlines and had not beenlax in enforcing them.In sum, all of the fourDobbsfactors were violated in thiscase. Thus, based on the undisputed facts, it is clear thatArbitrator Witney’s decision departed from the essence of theAgreement and was properly vacated by the district court.III. Did the District Court Err in Finding the ArcherAward to be Moot?The Union contends that the Archer Award, issued sixmonths before the Witney Award, must be enforced becausethe Company allegedly ignored the decision. The Company,however, maintains that the Archer Award does not affectPollard’s discharge because Pollard still accumulated enoughabsences from work — not including the day at issue in theArcher Award — to be discharged under the Company’sattendance policy.After the district court vacated the Witney Award renderingPollard’s grievance barred from arbitration, the district courtheld that enforcement of the Archer Award would have noimpact on the outcome of this case because the merits ofPollard’s grievance would never be reached. On appeal, theUnion argues that the issue is not moot because the Union isentitled to attorney’s fees incurred from re-litigating theArcher Award during the Witney arbitration. But this14Wyandot, Inc. v. Local 227No. 99-50135During oral argument, the Union contended that because the practiceof 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.5Second, the district court correctly determined that theWitney 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 theWitney 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 tothe Company gives special weight to missing deadlines. Amissed deadline creates a conclusive presumption that theUnion accepts the Company’s answer to the grievance. (SeeSection 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 aNo. 99-5013Wyandot, Inc. v. Local 2273Bargaining Agreement (the “Agreement”) between theCompany and the Union, a grievance protesting a dischargemust be filed in a timely manner or the grievance is barred.The Agreement provides in pertinent part:Article 6GRIEVANCE PROCEDURE AND ARBITRATIONSection 6.1Any dispute, complaints or grievancesarising from alleged violations of the Agreement by theCompany shall be settled and determined through thefollowing procedure:Step A: Any Employee and/or steward having agrievance will first attempt to adjust same byconference between the Employee and/orsteward involved and his or her Area Manager.Step B: If a grievance is not settled in Step A of thegrievance procedure, the Employee will nextattempt to adjust same with his or her stewardand the Department Manager.Step C: If a grievance is not settled in Step B of thegrievance procedure, thenit shall be reduced towritingand the aggrieved Employee, theSteward, and a Union Representative . . . and adesignated representative of the Company . . .shall then attempt to settle the grievance.Step D: If the grievance has not been satisfactorilysettled andif the grievance is otherwisearbitrableunder this Agreement,it may bereferred to arbitration. . .Section 6.2Any disputes, complaints orgrievancesarising from alleged violations of this Agreement by theCompanyshall be deemed, considered and held to havebeen waived unless the same are presentedfor4Wyandot, Inc. v. Local 227No. 99-50131It is undisputed that, in a discharge situation, the parties commencethe grievance procedure at Step C instead of Step A. (J.A. 185).settlement and determination of Step (A)1of theGrievance Procedure of this Agreementwithin five (5)working daysfrom the date on which said dispute,complaint or grievance first arose. ***Section 6.6All time limits for the processing ofgrievances, 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 6.7The 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 bindingupon theCompany and the Union and the aggrieved Employee orEmployees.Section 6.8If the Union fails, refuses, or declines toprosecute 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 shallNo. 99-5013Wyandot, Inc. v. Local 227134Even if the ten-day deadline applied from Section 6.1 of theAgreement, the July 1, 1996 letter was too late.Section 6.7The function of the Arbitrator shall be of ajudicial rather than of a legislative nature. The Arbitratorshall not have the authority to add to, ignore or modifyany of the terms or provisions of the Agreement.In the instant matter, the district court did not substitute itsjudgment for the judgment of the arbitrator. Rather, it appliedtheDobbsfactors and properly found that Arbitrator Witney’sdecision departed from the essence of the Agreement.First, the district court held Witney’s decision conflictedwith the express terms of the Agreement. The July 1, 1996letter, on which Witney relied to find the grievance arbitrable,is inconsequential to the determination of whether the Pollardgrievance was timely filed. Although Witney decided that theletter clarified the Union’s intention to arbitrate Pollard’sgrievance, the fact remains thatthe notice was too late.Under the express terms of the Agreement, the grievancewas required to be submitted within five working days ofPollard’s termination on May 31, 1996. The failure to complywith such times limits “shall cause the grievance to be barredand considered completely disposed of from the standpoint ofthe Company, the Union and the Employee.” Nowhere in theAgreement is there a provision allowing a grievant tocircumvent the time deadline by letter of intent.The July 1st letter — submitted over a month afterPollard’s termination — clearly does not conform to thisrequirement.4Indeed, Witney recognized that the letter itselfdid not meet the time limits set forth in the Agreement. Butthen, without a reasoned explanation, Witney concluded thatthe letter somehow cured the defect regarding time deadlines.Based on these undisputed facts, it is clear that the arbitrator’s12Wyandot, Inc. v. Local 227No. 99-50133Although the district court found that all four of theDobbsfactorswere 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.SeeMisco, 484 U.S. at 37-38. Indeed, anarbitrator’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,”seeDiscussionPart I,supra, and is not merely the arbitrator’s “own brand ofindustrial 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, 813F.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 inDobbsidentified four ways inwhich 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.3Dobbs, 813 F.2d at 86 (quotingNational Gypsum Co. v.United Steelworkers of Am., 793 F.2d 759, 766 (6th Cir.1986)). The requirements set forth inDobbsalso are reflectedin part in the language of the Agreement:No. 99-5013Wyandot, Inc. v. Local 2275thereafter be estopped to revive or further prosecute saidgrievance.(J.A. 38-39) (emphasis added).John Holzapel, the Company’s Human Resource Manager,mailed a letter to Sue Pollard on May 31, 1996, notifying herthat her employment was terminated because of a violation ofthe Company’s Attendance Policy. (J.A. 176). AlthoughPollard received the termination letter on June 1, 1996, nowritten grievance was presented to the Company until June18, 1996. (J.A. 177). Under the Agreement Pollard wasrequired to present her grievance in writing within five (5)working days of receiving notification of her discharge —i.e.,five working days after June 1, 1996. (J.A. 157, 185).On June 14, 1996, a meeting was scheduled to discuss twoother grievances. (J.A. 185). Alex Hernandez, the Union’sbusiness representative, and Ben Campbell, the Chief UnionSteward, represented the Union at the meeting. (Id.). Pollardalso appeared at the meeting. (Id.). Although Holzapel wassurprised to see Pollard, he agreed to listen to what the Unionhad to say while making it clear that the Company did notagree to waive the time limits for her grievance. (Id.). In fact,Hernandez asked Holzapel during the meeting to considerwaiving the time limits, but Holzapel refused. (Id.).Moreover, at the meeting — thirteen days after Pollardreceived her termination letter — the Company still had notreceived a written grievance regarding Pollard’s termination.(Id.).Seventeen days after Pollard received her termination letter,on June 18, 1996, the Union submitted a written grievance onher behalf. (Id.at 185-186). In response, the Companyinformed the Union in writing that the grievance was not filedin accordance with the time deadlines set forth in theAgreement and therefore would be denied:Grievance 5316, pertaining to Sue Pollard (termination),was not submitted in a timely manner, therefore,grievance is denied. Sue Pollard was terminated on6Wyandot, Inc. v. Local 227No. 99-50135/31/96. Grievance was not submitted to Company until6/18/96.In addition, the Company denied two other grievances inthe 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 Companyadvising it that the Union still was submitting Pollard’sgrievance to arbitration. (Id.). Pollard’s grievance was thenpresented 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 arbitrationNo. 99-5013Wyandot, Inc. v. Local 227112Moreover, it is important to note that while the Union characterizesthe time deadline as “procedural,” it is not truly so. The time limit setforth in the Agreement is not analogous to a statute of limitations. Rather,the time bar is explicitly set forth in the Agreement and presumably wasa bargained-for provision. In this sense, the deadline for filing grievancesis substantive, not procedural.should be left to the arbitrator.”Id.(emphasis added);seealsoMisco, 484 U.S. at 39-40 (same).Accordingly, the Union’s reliance on the “procedural”standard of review set forth inMiscois misplaced. InMisco,the matter at issue was subject to arbitration, and — afterfinding that the matter was arbitrable — the Supreme Courtreviewed the arbitrator’s “procedural” decisions relating tothe merits of the dispute. In the instant matter, the Companychallenges whether the matter is arbitrable. The district courtfound that the Pollard dispute was not arbitrable and thereforenever examined the arbitrator’s “procedural” decisions. Thus,the standard of review set forth inMiscois not applicable tothe instant matter.2In sum, the district court applied the proper standard ofreview in vacating the Witney Award. Namely, the courtexamined whether the Pollard grievance was arbitrable bydetermining whether the Witney Award drew its essence fromthe Agreement.SeeInterstate Brands, 909 F.2d at 890-891(rejecting Union’s contention that an arbitrator’s decisionregarding arbitrability is reviewed under theMisco“affirmative misconduct” standard and holding that the properstandard of review requires the court to determine whether thedecision draws its essence from the collective bargainingagreement).II. Did the District Court Substitute its Interpretation ofthe Agreement for That of Arbitrator Witney?The Supreme Court has made clear that courts must give anarbitrator’s decision substantial deference because it is thearbitrator’s construction of the collective bargaining10Wyandot, Inc. v. Local 227No. 99-5013arbitrability 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 ArbitratorWitney’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 arereviewed, 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 agreementwhile resolving the meritsof the dispute. For example, the Supreme Court inMiscoruled 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 becausethe evidentiary decision was in effect “a construction of whatthe contract required when deciding discharge cases.”Id.at39.To make such a “procedural” decision, it must previouslybe determined that the matter at issue is subject to arbitration.InJohn 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 dispositionNo. 99-5013Wyandot, Inc. v. Local 2277process.Not for the Union’s letter to Wyandot ofJuly 1, 1996, the Arbitrator would have deniedPollard’s grievance upholding her termination.(Id.at 187-188) (emphasis added).Although Arbitrator Witney recognized that the July 1stletter from the Union (advising the Company that it wasproceeding to arbitration) did not meet the time limits setforth in the Agreement, he determined that the letter was“clear and unmistakable notice to Wyandot that the Unionintended to arbitrate the Pollard grievance,” (id.at 188), and“overcomes whatever defects [the Union] has in terms of timelimits.” (Id.at 189). Based on this analysis, Witney ruledthat Pollard’s grievance was arbitrable. (Id.).The Company subsequently filed suit in the district court tovacate the Witney Award. In examining the Award, thedistrict court recognized that courts have extremely limitedauthority to review arbitration awards. An arbitrator’s factualerrors and even misinterpretation of the Agreement are notsubject to judicial reconsideration. An arbitrator is, however,without authority to disregard or modify the plain andunambiguous provisions of the Agreement. (J.A. 48).The district court then found that the “Union failed totimely grieve Pollard’s discharge,” and that the arbitratorignored the Agreement’s deadlines “while acknowledging thatthe Company did not waive the deadline and had not been laxin enforcing the grievance procedure deadlines.” (Id.) Thus,the lower court concluded:[S]imply because the Union and Witney assert that theWitney Award draws its essence from the contract, doesnot necessarily make it so. The Arbitrator’s finding thatPollard’s grievance and the July 1, 1996 letter weretimely fails to draw its essence from the [Agreement].Furthermore, the Arbitrator ignored the terms of the[Agreement] in finding the grievance arbitrable. Thus,Arbitrator Witney’s award will be vacated.8Wyandot, Inc. v. Local 227No. 99-5013(Id.at 48) (internal citations omitted).II. The Archer AwardSue Pollard and other Wyandot employees were consideredabsent 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 ArcherAward 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 vacatethe 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 wouldNo. 99-5013Wyandot, Inc. v. Local 2279only help her if the Witney Award were to be upheld.Presumably, the Archer Award will still have effect inevery other applicable circumstance. (J.A. 48, n. 6).DISCUSSIONThe principal issues on appeal are whether (1) the Pollardgrievance is arbitrable, (2) Arbitrator Witney’s decision drawsits essence from the Agreement, and (3) the Archer Award ismoot regarding the issues of this case.The Union argues that the district court erred in vacatingthe Witney Award because (1) it applied the wrong standardof review, and (2) it improperly substituted its interpretationof the Agreement for that of Arbitrator Witney. Further, theUnion contends that the district court erred in finding theArcher Award to be moot even if it properly vacated theWitney Award because the enforcement of the Archer Awardaffects other remedies available to Pollard.The Company argues that the district court properly vacatedthe Witney Award because (1) the Pollard grievance is notarbitrable, and (2) the arbitrator exceeded his authority bydisregarding the plain and unambiguous provisions of theAgreement. Thus, according to the Company, the WitneyAward did not draw its essence from the terms of theAgreement. Moreover, the Company contends that thedistrict court properly held the Archer Award to be mootbecause it has no impact on the outcome of this case.I. Did the District Court Apply the Wrong Standard ofReview?An arbitrator’s decision on the issue of arbitrability will beaffirmed “unless it fails to ‘draw its essence from thecollective bargaining agreement.’”Vic Wertz Distributing v.Teamsters, Local 1038, 898 F.2d 1136, 1140 (6th Cir. 1990)(citingEberhard Foods, Inc. v. Handy, 868 F.2d 890, 891(6th Cir. 1989)).SeealsoInterstate Brands v. Chaffeur,Teamsters Local 135, 909 F.2d 885, 891 (6th Cir. 1990)(holding that a court could overturn an arbitrator’s ruling on