1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0037P (6th Cir.)

File Name: 04a0037p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

STERLING CHINA COMPANY,

Plaintiff-Appellant,

v.

GLASS, MOLDERS, POTTERY,

PLASTICS & ALLIED

WORKERS LOCAL NO. 24;

GLASS, MOLDERS, POTTERY,

PLASTICS & ALLIED

WORKERS INTERNATIONAL

UNION, AFL/CIO,

Defendants-Appellees.

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No. 02-3773

Appeal from the United States District Court

for the Northern District of Ohio at Youngstown.

No. 01-01817—Peter C. Economus, District Judge.

Argued: October 30, 2003

Decided and Filed: February 3, 2004 

Before: NELSON, CLAY, and COOK, Circuit Judges.

2 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

No. 02-3773

_________________

COUNSEL

ARGUED: Jeffrey A. Belkin, BELKIN, BILLICK &

HARROLD, Cleveland, Ohio, for Appellant. Mimi C. Satter,

SATTER& ANDREWS, Syracuse, New York,forAppellees.

ON BRIEF: John T. Billick, Linda Hauserman Harrold,

BELKIN, BILLICK & HARROLD, Cleveland, Ohio, for

Appellant. Nancy Samone Sokol, Ronald F. O’Brien,

TOMAR, O’BRIEN, KAPLAN, JACOBY & GRAZIANO,

Cherry Hill, New Jersey, for Appellees.

CLAY, J., delivered the opinion of the court, in which

COOK, J., joined. NELSON, J. (pp. 20-26), delivered a

separate concurring opinion.

_________________

OPINION

_________________

CLAY, Circuit Judge. Plaintiff, Sterling China Company

(the “Company”), appeals a June 4, 2002, order by the district

court granting Defendants, Glass, Molders, Pottery, Plastics

& Allied Workers Local No. 24, et al., (collectively, the

“Union”) its cross-motion for summary judgment seeking an

order enforcing a supplemental arbitration award, dated

April 4, 2001, which accords its union workers compensation

for work previously performed. Plaintiff’s claim, and

subsequent motion for summary judgment, asserted that the

supplemental arbitration award is null and void, since

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

Pottery, Plastics & Allied Workers

Local No. 24, et al.

3

2711.13, we AFFIRM the district court’s decision which

enforced the supplemental award and denied the Company’s

motion for summary judgment.

BACKGROUND

Procedural History

On June 3, 2001, the Company initiated this case in a

complaint for Declaratory Relief and an Application for Order

Vacating an Arbitration Award in the Common Pleas Court

for Columbiana County, Ohio. In Count I of its action, the

Company seeks a declaration that any action to vacate,

modify, correct or confirm an arbitration award issued in

December of 1998 is time-barred pursuant to Ohio Rev. Code

§§ 2711.09 and 2711.13, thus rendering the subsequent

arbitration award issued on April 4, 2001 null and void. In

the alternative, in Count II the Company seeks an order

pursuant to Ohio Rev. Code § 2711.10 vacating the

arbitration award issued on April 4, 2001. On July 26, 2001,

the Union removed this case to the United States District

Court for the Northern District of Ohio pursuant to 28 U.S.C.

§ 1441 (a), asserting the action arose under § 301 of the Labor

Management Relations Act (“LMRA”), 29 U.S.C. §185. 

On August 16, 2001, the Union filed its answer and

counterclaim. The counterclaim, pursuant to Section 301 of

LMRA, seeks an order enforcing the 2001 arbitration award.

The parties filed cross-motions for summary judgment on

December 17, 2001. On June 4, 2002, the district court

issued its order denying the Company’s motion for summary

judgment and granting the Union’s motion for summary

judgment to enforce the supplemental award. On July 3,

2002, the Company filed its notice of appeal. 

4 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

No. 02-3773

Substantive Facts

The Company is engaged in the production of fine pottery

and chinaware at its facility in Wellsville, Ohio. The Union,

headquartered in Media, Pennsylvania, and its local affiliate,

located in Wellsville, Ohio, represent the Company’s

production and maintenance employees. On February 6,

1993, the Company and the Union entered into a collective

bargaining agreement (“CBA”) which contained a grievance

procedure providing that disputes arising between the parties

under the agreement would be submitted for arbitration. The

Company’s “Sterling China/GMP Job Evaluation System,”

which is set forth in the Company’s Job Evaluation Manual,

was incorporated into Article 22, Section 7 of the CBA.

Pursuant to the Agreement: “[t]he Company has the right to

combine present or create new job classifications. When such

present classifications or new classifications are combined or

created, the rate for such classification shall be subject to

negotiations between Company and Union using the [] Job

Evaluation System.” (J.A. at 160-184.)

Under the system, a position is assigned to a Wage Grade

commensurate with the degree of difficulty attached to the

following job related factors: experience, job knowledge,

initiative and ingenuity, physical demand, mental or visual

demand, working conditions, and job responsibilities. If the

parties cannot agree on a Wage Grade after their evaluation of

a job, either party may file a grievance.

In the fall of 1994, the Company began production of a

specialty line of glost (glazed) products for the Longaberger

Company. Employees who performed work on the

Longaberger, specifically the selection or boxing of the

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,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

5

On or about November 3, 1995 the Union filed a grievance

citing the Company’s violation of Article 22, Section 7 of its

CBA regarding the applicable wage rate for employees who

performed Longabergerware packer’s duties, contending that

the correct rate was the Wage Grade 3 base rate of the Glost

packer position ($7.585) “plus bonus amount.” An arbitration

proceeding commenced in accordance with the grievance

procedures of the CBA. Arbitration hearings were conducted

on December 5, 1996, November 14, 1997, and April 21,

1998. On December 28, 1998, the arbitrator delivered its

opinion and award, sustaining the Union’s grievance, holding

that the affected employees should be paid “the difference

between the wage rate they received and the higher base wage

rate that had been paid to the Glost Packers” since the fall of

1994. The award indicated that the “job duties” of the

“employees who worked on the Longaberger specialty items

are ‘reasonably related to the essence of the duties of the

Glost Packer.’” With respect to the “incentive rates” sought

by the Union, however, the arbitrator was persuaded by the

Company’s evidence that the affected employees were not

entitled to such “incentive rates.” Therefore, the Company

was required to pay “any and all employees, who have

performed Glost Packer work on the Longaberger specialty

ware since the fall of 1994, the difference between the wage

rate they received and the higher base wage rate that has been

paid to the Glost Packer.”

The Company objected, by letter, on January 12, 1999,

because the award provided back pay beyond the date on

which the grievance had been filed. The arbitrator responded

that according to Article 22, section 7 of the CBA, any change

in rates of pay will be retroactive to the “date of the change or

new classification,” and based on the change or new

classification of the Glost Pack workers on the Longaberger

specialty ware that occurred in the fall of 1994, the remedy is

retroactive to the fall of 1994. The arbitrator also stated that

6 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

No. 02-3773

1

See section I.B, infra.

the Company’s objection to the retroactive date would call for

a change in the award which would be contrary to the

principle of functus officio.

1

Plaintiff then requested an audit from the Union of the

affected employees’ hours in order to calculate back pay. In

a letter dated, October 1, 1999, the Union indicated that 25

employees worked a total of over 24,000 hours in regular and

overtime and that they were still auditing the numbers. In a

letter dated, October 14, 1999, the Company calculated the

pay difference at $.25 per hour and offered to pay that amount

for a total of 25,000 hours to account for regular and overtime

hours. The Company also quoted the language of the

arbitration award that held the affected employees were not

entitled to the incentive rates. 

The Union wrote back in a letter dated November 4, 1999,

stating that the affected employees worked 19,001.625

straight hours and 2,359.5 overtime hours on the Longaberger

work and that the Union did not “share [the Company’s]

interpretation of the arbitrator’s award.” By letter dated

November 15, 1999, the Company offered to pay the

difference between the Wage Grade 1 rate and the Wage

Grade 3 rate, which was $.26 per hour for straight time and

$.39 per hour for overtime, which totaled $5,860.63,

according to the Company. 

On December 22, 1999, the Union wrote a letter to the

arbitrator, carbon copying the Company, which stated: “It is

[our] understanding that you are retaining jurisdiction. As of

this date, the parties have not reached agreement as to the

proper remedy. Therefore, we are requesting available dates

for the purpose of getting your opinion regarding the remedy

after appropriate arguments have been made.” On
No. 02-3773 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

7

December 27, 1999, the Company responded to the Union’s

letter, stating that the arbitrator’s award was clear and

unambiguous with regard to the issues involving back pay

and that there was no need or basis for an additional hearing.

In a letter to the arbitrator, the Union stated: “Contrary to the

position taken by [the Company’s counsel], an ambiguity

does exist concerning the interpretation of the remedial

portion of your award,” and that the Union “thinks [] a

hearing is necessary to establish the precise compensation

paid to Packers during the back pay period.” Thereafter, the

arbitrator convened a supplemental hearing on October 22,

2000.

It was the Company’s position that the arbitrator had no

authority to hold an additional hearing, accept additional

evidence or issue a supplemental decision or award; therefore,

the Company made no appearance except to object to the

proceedings in their entirety. 

The arbitrator issued a supplemental award on April 4,

2001. The decision summarized the previous award and the

position of the parties; then the arbitrator explained his

previous intentions: 

In order to equal the wage rate equal to Glost Packer’s

rate, by necessity the Longaberger employees are

required to be paid the same rate as the Glost Packers,

rather than a rate which is $3 an hour lower than the

Glost Packer. Moreover, I also included in my award

that the ‘grievance is sustained.’ By sustaining the

grievance,Ihave sustained the Union’s requested remedy

which included the $3 add-on.

(J.A. at 259-262).

In response to the Company’s claim that the Union’s

request was precluded by the doctrine of functus officio, the

8 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

No. 02-3773

arbitrator explained, “[t]he doctrine of functus officio

prohibits reopening the merits of the dispute between the

parties. . . . I am not determining an issue involving the

merits which have already been decided.” Id. The arbitrator

continued to point out that he retained jurisdiction of the

proceedings, “should any disputes arise between the parties

with respect to the implementation of this remedy.”

Therefore, the arbitrator maintained that the supplemental

award clarified the original award and the doctrine of functus

officio did not apply.

DISCUSSION

We review de novo the district court’s grant of summary

judgment. Beacon Journal Pub. Co. v. Akron Newspaper

Guild, Local No. 7, 114 F.3d 596, 599 (6th Cir. 1997).

Summary judgment is proper when there are no genuine

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).

In deciding a motion for summary judgment, the court must

review the evidence and draw all reasonable inferences in

favor of the nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986). The judge is

not to weigh the evidence and determine the truth of the

matter, but rather determine whether there is a genuine issue

for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986). 

Although this court requires a de novo review, the

deference that federal courts must give to the settlement of a

labor dispute by an arbitrator is substantial. DBM Tech., Inc.,

v. Local 227, United Food & Commercial Worker Int’l

Union, 257 F.3d 651, 656 (6th Cir. 2001). The Supreme

Court has made clear that courts must give an arbitrator’s

decision substantial deference since it is the arbitrator’s

construction of the collective bargaining agreement, not the

court’s construction, to which the parties have agreed.
No. 02-3773 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

9

Wyandot, Inc. v. Local 227, United Food & Commercial

Workers Union, 205 F.3d 922, 928-29 (6th Cir. 2000) (citing

United Paperworks Int’l Union v. Misco, 484 U.S. 29, 37-38

(1987)). Indeed, an arbitrator’s factual errors and even

misinterpretations of a collective bargaining agreement are

not subject to reconsideration by the court. Id.

I.

A. The Application of the Ohio Revised Code’s Statute

of Limitations

The Union removed this case to federal court since the

action arose under § 301 of the LMRA. Actions filed under

§ 301 of the LMRA are subject to the appropriate state statute

of limitations, since it contains no federal limitations

provision of its own. Aloisi v. Lockhead Martin Energy

Systems, 321 F.3d 551, 556 (6th Cir. 2003) (citing United

Parcel Serv. v. Mitchell, 451 U.S. 56, 60 (1981)). The

appropriate statute of limitations utilized in an Ohio case

seeking to challenge a party moving to vacate, modify, or

correct an arbitration award is the Ohio Revised Code

(“O.R.C.”) § 2711.13, United Steel Workers of America,

Local 4839 v. New Idea Farm Equipment Corp., 917 F.2d

964, 967 (6th Cir. 1990), which provides:

[a]fter an award in an arbitration proceeding is made, any

party to the arbitration may file a motion in the court of

common pleas for an order vacating, modifying, or

correcting the award as prescribed in sections 2711.10

and 2711.11 of the Revised Code. 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, as

prescribed by law for service of notice of motion in an

action.

10 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

No. 02-3773

Alternatively, in order to confirm an award once final,

parties must move under O.R.C. § 2711. 09, Id., which

provides:

[a]t any time within one year after an award in an

arbitration proceeding is made, any party to the

arbitration may apply to the court of common pleas for

an order confirming the award. Thereupon, the court

shall grant such an order and enter judgment thereon,

unless the award is vacated, modified, or corrected as

prescribed in sections 2711.10 and 2711.11 of the

Revised Code.

Therefore, the proper characterization of the action

determines its timeliness. New Idea, 917 F.2d at 967. 

The Company asserts that any action taken by the Union,

at this time, is barred by the O.R.C. statute of limitation. The

Company further argues that the arbitrator was without

authority to re-hear this dispute and re-issue another

arbitration decision. However, as this court stated in New

Idea, the proper characterization of the events in the instant

case is necessary to determine timeliness and the proper

authority. Id. We will deal with timeliness first.

After the first arbitration award was issued in December of

1998, the parties went back and forth for almost a year

disputing the proper application of the issued remedy. The

Union understood the arbitration’s conclusion to require that

Longaberger workers be equitably compensated to the degree

that the existing Glost Packers have been compensated since

the fall of 1994, which included more than the $.26 per hour

difference as determined by the Job evaluation chart.

Apparently, the $3/per hour “add on” that was requested, and

clarified in the supplemental arbitration award, was part of the

compensation the Union understood to be included in the

difference in wage rate.
No. 02-3773 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

11

2

O.R. C. §§ 2711.09 and 2711.13 specifically require parties to file

motions with the court of common pleas within the time frame indicated

in the language of the statute to guarantee each provision’s respective

relief. There is no indication in the statutory language that these time

frames affect a party’s ability to reconcile clarifications of an award with

its arbitrator. Nevertheless, the initial inquiry by the Union to the

arbitrator requesting clarification was within one year of the arbitration

award, thus not precluding mandatory confirmation upon a possible

motion, pursuant to O.R.C. §2711.09, by the Union if they so chose. 

Additionally, the Company argues that a request for clarification does

not effectively “toll” the statute of limitations for the filing of a

subsequent motion to vacate, modify, correct or confirm, citing Galion v.

Am. Fed’n of State, Cty. & 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,

correct or confirm the August 1998 award, by way of a motion under

O.C.R. §§ 2711.09 or 2711.13. Furthermore, Galion is distinguishable

since the arbitrator there did not retain jurisdiction to clarify ambiguities,

whereas in the instant action, the arbitrator did retain such authority. The

Court need not analyze the parameters of a situation where the arbitrator

does retain jurisdiction under the same factual scenario as Galion, since

the instant case differs in both respects.

Conversely, the Company’s understanding was that the

difference in wage rate it was ordered to pay the Union

employees, merely included the $.26/per hour increase as

determined by the Job Evaluation chart, since the arbitrator

made a point in the initial arbitration award to state that he

was “persuaded by the Company’s evidence with respect to

the reasons for not applying the incentive rate to the Packer’s

work in the Longaberger ware.” For these reasons,

clarification of the arbitration award was necessary to move

forward in the proceedings. By way of literal interpretation,

clarification of an award is neither controlled by O.R.C.

§§ 2711.09 nor 2711.13.2 

Traditionally, if an arbitration award is ambiguous and in

need of clarification, courts are made to remand back to the

arbitrator to clarify its meaning and intent. M & C Corp. v.

12 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

No. 02-3773

Erwin Behr GMBH & Co., 326 F.3d 772, 782 (6th Cir. 2003)

(holding that a “remand is proper both at common law and

under the federal law of arbitration contracts, to clarify an

ambiguous award or to require the arbitrator to address an

issue submitted to him but not resolved by the award”

(quoting Green v. Ameritech Corp., 200 F.3d 967, 977 (6th

Cir. 2000))). Although, the Union’s request for clarification

did not come through a request to remand in the federal

courts, it is important to recognize that the parties involved

needed clarification before any appropriate recourse of federal

or state actions became necessary. See New Idea, 917 F.2d at

969 (citing United Steelworkers v. Timken Roller Bearing

Co., 324 F.2d 738, 740 (6th Cir. 1963) (holding that a “court

is not required to enforce an award that is not clear as to its

meaning”)).

Therefore, the Union did not violate the three month statute

of limitations to vacate, modify or correct an arbitration

award under O.C.R. § 2711.13 since the Union did not

request such a remedy. Additionally, the Union did not

violate the required one-year time frame in which to receive

a guaranteed confirmation of an arbitration award under

O.C.R. §2711.09, as that also was not the requested remedy.

The Union did request, however, clarification of the award, as

its remedial meaning was clearly in dispute. To fully

understand the breadth of the arbitrator’s power to clarify, we

visit the issue as to whether or not the arbitrator exceeded his

power in clarifying and subsequently issuing a supplemental

award.

B. The Arbitrator’s Powers Under the Doctrine of

Functus Officio

The doctrine of functus officio is defined as “having

fulfilled the function, discharged the office, or accomplished

the purpose, and therefore of no further force of authority.”

Ameritech, 200 F.3d at 976 (quoting BLACK’S LAW
No. 02-3773 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

13

DICTIONARY 673 (6th ed. 1990)). This doctrine has

specifically been applied to the breadth of an arbitrator’s

authority whereas in “most cases arbitrators’ appointments

continue until they have heard the case, made a final award,

and disclosed it to both parties. At this time their task is

performed, their duties under the arbitration agreement are

discharged, and their arbitral authority is at an end.” Id.

(citing III MACNEIL, SPEIDEL & STIPANOWICH § 37.6.1.1, at

37:25). However, the doctrine of functus officio contains

several exceptions, such as (1) where the arbitrator can

“correct a mistake which is apparent on the face of the

award;” (2) where “the award does not adjudicate an issue

which has been submitted, then as to the issue the arbitrator

has not exhausted his function and it remains open to him for

subsequent determination;” and (3) where “the award,

although seemingly complete, leaves doubt whether the

submission has been fully executed, an ambiguity arises

which the arbitrator is entitled to clarify.” Industrial Mut.

Ass’n, Inc. v. Amalgamated Workers, Local No. 383, 725 F.2d

406, 412 n.3 (6th Cir. 1984) (quoting La Vale Plaza, Inc. v.

R.S. Noonan, Inc., 378 F.2d 569, 573 (3d Cir. 1967)). This

Court has recognized the need for an arbitrator’s “clarification

of an ambiguous award when the award fails to address a

contingency that later arises or when the award is susceptible

to more than one interpretation.” Ameritech, 200 F.3d at 977

(citing Glass, Molders, Pottery, Plastics & Allied Workers

Int’l Union, Local 182B v. Excelsior Foundry, Co., 56 F.3d

844, 847 (7th Cir. 1995) (“holding that uncertainty in an

arbitration award regarding which party would pay for the

employee’s rehabilitation justified the arbitrator’s extension

of the deadline fixed in the original award, and explaining that

this question ‘can fairly be characterized’ as ‘interpretive,’

[thus] ‘allowing [the plaintiff] to crawl through the loophole

in the doctrine of functus officio for clarification or

completion, as distinct from alteration of the arbitral

award.’”)).

14 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

No. 02-3773

The Company disputes the Union’s reliance on cases like

the Seventh Circuit’s Excelsior Foundry case, and this

Court’s Ameritech case, claiming they are distinguishable to

the instant action; however, the district court was correct in its

view that the arbitrator in this case fell squarely within the

authority, followed by this Court, to properly clarify the order

at issue. Very much in line with Excelsior, the parties here

were confronted with an unexpected contingency after the

award was issued: the matter of the exact definition of the

“higher base rate” that would be equivalent to the rate

received by the Wage 3 Glost Packers’ position since the fall

of 1994. The Company can not say that the required remedy

was “clearly determined” by the original arbitral award when

the parties were clearly in dispute as to the interpretation of

the remedy, and there was no numerical determination in the

award.

Furthermore, the arbitrator’s retention of jurisdiction

further supports its actions as falling squarely within the

exceptions of the doctrine of functus officio. The December

arbitral award concluded with the arbitrator’s assertion that he

“retains jurisdiction should any disputes arise between the

parties with respect to the implementation of this remedy.” In

correspondence from both parties, the arbitrator’s retention of

jurisdiction was acknowledged, therefore leaving this issue

unchallenged.

C. The Validity of the April 4, 2001 Supplemental

Arbitral Award

Alternatively, even if a clarification was within the

arbitrator’s power, the Company argues that the supplemental

award exceeded that power and should be vacated, claiming

it was issued in violation of O.R.C. § 2711.10 (D), which

states in pertinent part:
No. 02-3773 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

15

[I]n any of the following cases, the court of common

pleas shall make an order vacating the award upon the

application of any party to the arbitration if:

. . . .

(D) The arbitrators exceed their powers, or so

imperfectly executed them that a mutual, final and

definite award upon the subject matter submitted

was not made.

In order to determine whether or not the arbitrator exceeded

his powers we must acknowledge the breadth of those

powers, and how they were applied. As stated above, the

arbitrator has the power under the exception of the doctrine of

functus officio to go back and “clarify” an ambiguous or

incomplete portion of an award. Behr, 326 F.3d at 782. Now

we look to the difference between the December 1998

arbitration award and the April 2001 arbitration award to

determine whether or not the latter is in fact a clarification.

As to the original December 1998 award, the Union

asserted that the remedy portion was unclear regarding

precisely how much each affected Longaberger Packer would

receive in compensation based on the arbitrator’s analysis of

the two jobs, the Longaberger Packers and the Glost Packers

of traditional ware, and its acknowledgment of their

equivalency. The ambiguity arises in what seems to be the

original award’s denial of any incentive rates above and

beyond the documented base rate for a Wage 3 Packer, as set

forth in the Job Evaluation Manual. The arbitrator

acknowledged that the Union failed to submit evidence

regarding the application of the incentive rate to the Glost

Packer work on the Longaberger ware, while also

acknowledging that the Company submitted persuasive

evidence on the reasons the incentive should not be applied.

Nevertheless, the incentive rate was never defined in the first

16 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

No. 02-3773

award, nor was the “higher base rate” to which the

Longaberger Packers were entitled, making such

compensation equivalent to the traditional Glost Packers, as

expressed by the arbitrator.

In the supplemental award in April 2001, the arbitrator

clarified the dispute over what the “higher base rate”

encompassed. Since it is undisputed that the original award

increased the Longaberger rate to Wage Grade 3, the real

question was whether or not that included what the Union

assumed to be a $3 per hour “add on” rate. The Company

argues that the $3 “add on” rate is the equivalent to the

incentive rate to which the original arbitration award did not

assent. By applying this rate in the supplemental award, the

Company argues the award was altered or changed, thus

violating O.C.R. § 2711. 10. 

Conversely, the Union argues that the $3 “add on” is

subject to different criteria than the incentive rate and that the

“add on” was necessary to complete what would have been an

incomplete award. As clarification, the April 2001 award

defines its previous award as to the exact amount entitled to

the Longaberger Packers. The arbitrator specifically states

that “in the award I refer to the ‘higher base wage rate’ that

has been paid to the Glost Packer. I do not refer to the Grade

III wage rate of the Glost Packer . . . The higher base wage

rate includes the $3 add on which has been paid to the Glost

Packers for a period of years.” (J.A. at 260). The arbitrator

further clarifies his award by stating:

[i]t is important to underscore that I refer to the

Longaberger employees warranting a Labor Grade III

position and a wage rate equal to the Glost Packers’ rate.

In order to equal the wage rate equal to the Glost

Packers’ rate, by necessity the Longaberger employees

are required to be paid the same rate as the Glost Packers,
No. 02-3773 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

17

rather than a rate which is $3/hour lower than the Glost

Packer. 

(J.A. at 260).

The arbitrator finalized his clarification by stating that he

acknowledged his refusal in applying the incentive rate to the

award; however, “in making [that] statement, the incentive

rate is to be distinguished from the $3 add on which replaced

the incentive rate and which has been paid to Glost Packers.”

(J.A. at 261). Therefore, given the need for the award’s

clarification with respect to the proper compensatory remedy,

in addition to the arbitrator’s power to properly go back and

clarify any inconsistencies of interpretation, the supplemental

award is appropriate and valid under O.C.R. §2711.10 (D).

Because the arbitrator’s authority allows for clarification of

an award subject to multiple interpretations, the issuance of

the supplemental award was well within the arbitrator’s

power and was not subject to any limitations found in O.R.C.

§§ 2711.09 or 2711.13.

II.

The Company additionally argues that the arbitrator’s 2001

award must be vacated because it fails to draw its essence

from the CBA. However, in the instant case, the arbitration

award is not a violation of the arbitrator’s express authority as

it does draw its essence from the CBA. 

This Court’s jurisdiction to review an arbitrator’s decision

is predicated on an allegation that the arbitrator reached an

erroneous decision. Teamster Freight Emp. v. Bowling Green

Express, Inc., 707 F.2d 245, 256 (6th Cir. 1983). We review

the arbitrator’s decision only to determine whether the

arbitrator was “arguably construing or applying the contract

and acting within the scope of his authority.” Misco, 484

U.S. at 38. If the arbitrator’s award “draws its essence from

18 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

No. 02-3773

the bargaining agreement,” and is not merely the arbitrator’s

“own brand of industrial justice,” the award is legitimate.

Beacon, 114 F.3d at 599 (quoting United Steel Workers of

Am. v. Enterprise Wheel & Car Co., 363 U.S. 593, 597

(1960)). An arbitrator’s award fails to draw its essence from

the agreement when: 

(1) it conflicts with express terms of the agreement; (2) it

imposes additional requirements not expressly provided

for in the agreement; (3) it is not rationally supported by

or derived from the agreement; or (4) it is based on

‘general considerations of fairness and equity’ instead of

the exact terms of the agreement. 

Id. at 600 (quoting Dallas & Mavis Forwarding Co. v. Local

Union No 89, 972 F.2d 129, 134 (6th Cir. 1992)). 

It is indisputable that the CBA included the term “add on”

therein, with regard to wages. (J.A. at 35-36). It is also

indisputable that payment of a “base wage” is not the sole

means of compensation allowed for in the CBA. By

specifically stating the means by which the Company must

accurately compensate the Longaberger Packers (since the

intention was to require equivalent compensation), the award

itself did not conflict with express terms of the agreement or

impose additional requirements not expressly provided for in

the agreement. See Wyandot, 205 F.3d at 929 (holding that

the arbitration award violated all four factors that dictated its

authority, as it violated express timeliness provisions,

imposed broad mandatory accommodations for all written

arbitration demands, inaccurately found the grievance

arbitrable, and ignored the precise terms of the agreement in

favor of equity, thus clearly departing from the essence of the

agreement and was appropriately vacated). 

The Company terms the supplemental award, referencing

the $3 add on, as a misinterpretation of its meaning within the
No. 02-3773 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

19

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

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

that would in certain circumstance be unknown to the

workers, it follows that the supplemental arbitration award

fulfills that intent by clarifying the prescribed compensation

due to the Longaberger workers. Therefore, whether the

arbitrator correctly determined the award or not, the district

court’s ruling may not be reversed on review since the

supplemental award ultimately drew its essence from the

CBA.

CONCLUSION

For the aforementioned reasons, this Court AFFIRMS the

district court’s order.

20 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

No. 02-3773

_____________________

CONCURRENCE

_____________________

DAVID A. NELSON, Circuit Judge, concurring. I agree

that the Union’s effort to enforce the 2001 version of the

arbitration award is barred neither by the functus officio

doctrine nor by the Ohio statute of limitations to which we

must look in the absence of an applicable federal statute.

Enforcement would be barred, however, if the decision

rendered by the arbitrator in 2001, instead of being a

clarification of a point left ambiguous in the 1998 award,

constitutes a reversal of the “incentive rate” portion of that

award. I write separately to outline my reasons for

concluding that the 2001 decision is in fact a clarification of

the earlier award and not a reversal.

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,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

21

1

This declaration was intended to apprise the district court of the

substance of testimony given by Fadale before the arbitrator on April 21,

1998. The district court questioned whether “declarations” can be given

any consideration in summary judgment proceedings, since Rule 56(c),

Fed. R. Civ. P., authorizes consideration of “affidavits,” not declarations.

Under 28 U.S.C. § 1746, however, an unsworn declaration has the same

force and effect as an affidavit if it recites — as Fadale’s declaration does

— that it was executed “under penalty of perjury.”

initially received incentive pay geared to “down time and the

amount of cartons that were packed in a given time frame,”

according to a declaration executed by Mr. Fadale in

December of 2001.1

In his 1998 award sustaining the union’s grievance, the

arbitrator held that although the employees who had packed

Longaberger ware were entitled to the wage grade 3 rate for

glost packer work, they were not entitled to the incentive rate:

“I am persuaded by the Company’s evidence with

respect to the reasons for not applying the incentive rate

to the Packers’ work on Longaberger ware. In

establishing an incentive rate, the mechanized nature of

the Glost Packer’s work on traditional ware is a factor

which is entitled to great weight. Moreover, also of

importance to the establishment of an incentive wage rate

are such factors as a time study, proper sequence of the

job and the allowances which are made, for example,

with respect to ‘downtime’ or ‘machine breakdowns’.

Although these factors are of great weight in establishing

an incentive rate for the Glost Packer of traditional ware,

. . . the employees who have worked on the Longaberger

ware are entitled to the same base wage rate as the Glost

Packers of traditional ware. Accordingly, employees

who have performed the Longaberger job since the fall of

1994 [when the Longaberger line was introduced], are

entitled to receive the difference between the base wage

22 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

No. 02-3773

rate that they were paid and the higher base rate that has

been paid to the Glost Packer of traditional ware.”

(Emphasis supplied.)

The evidence by which the arbitrator was persuaded that the

incentive rate applicable to traditional glost packers should

not be applied to Longaberger workers is summarized in the

Fadale declaration as follows: 

“In good industrial engineering practices, incentive

systems are not portable. They cannot be moved from

one job to the next just as a result of similarity. Incentive

systems are designed for a specific job; they are based on

the parameters of that job such as the amount of work

that is being done if it is a piecework plan, parameters

such as down time that would be incurred on the job,

different things like that. The equipment would help

drive the setup of it; it may not be a parameter in the

determination of monies from the incentive system, but

it would be a factor in setting up the initial incentive

system.”

The incentive pay system for traditional glost packers was

changed, at some point in time, to a system that simply added

a fixed dollar amount to the packers’ hourly base rate. As the

Fadale declaration explains, 

“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

incentive system. That amount is added on to the

packers’ base rate.”

Because the amount of the add-on ($3 per hour) approximated

numbers that had typically been produced under the incentive

system designed for the traditional glost packing line, Mr.
No. 02-3773 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

23

Fadale maintained that the add-on “could not be transferred”

to the Longaberger work. 

The arbitrator clearly was persuaded that the incentive rate

could not be transferred, but it is not clear that he was

persuaded the $3 add-on could not be transferred either. The

company argues in its brief on appeal that the add-on “is the

incentive rate,” but Mr. Fadale himself drew a distinction

between the variable numbers generated by the incentive

system and the fixed number by which the base rate was

increased after the incentive system was turned into a fixedhourly-amount system.

If I thought that the arbitrator understood the change in

systems to have occurred before the fall of 1994, when the

company began producing items for Longaberger, it would be

difficult for me to avoid the conclusion that in saying the

incentive rate could not be applied to the Longaberger work,

the arbitrator must have meant that the $3 add-on could not be

so applied. If there was no longer a true incentive system in

place when the Longaberger line was introduced, what could

the arbitrator possibly have been referring to, when he held

“the incentive rate” inapplicable to Longaberger workers,

other than the add-on that had evolved from the incentive

system? If, on the other hand, the arbitrator understood that

the incentive system was still being used in the fall of 1994,

it is conceivable that the arbitrator was focusing on that

system and was not focusing on the $3 add-on that

subsequently replaced it.

I have found nothing in the record establishing what (if

any) evidence was presented to the arbitrator as to when the

variable incentive pay was replaced by the fixed add-on.

Reading the arbitrator’s awards with the deference that must

be accorded them, however, I conclude that the arbitrator

must have understood the change to have occurred after the

startup of the Longaberger line. And if that is what he

24 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

No. 02-3773

thought, I believe that what the arbitrator said in 2001 can be

reconciled with what he said in 1998.

The arbitrator did not say, in 2001, that Longaberger

workers were entitled to the incentive rate that the packers of

traditional glost ware were receiving, ex hypothesi, in the fall

of 1994. Instead, as I understand him, he was saying that

when the packers of traditional ware began receiving a

composite rate determined by adding a flat $3 per hour to the

base pay specified in the collective bargaining agreement, the

Longaberger workers were entitled to begin receiving the

same composite rate. The original decision not having made

it clear whether Longaberger workers would or would not

receive the composite rate once it was introduced for workers

handling the traditional product, the arbitrator could have

gone either way on this question without contradicting the

original award. 

I myself might think it wrongheaded, after denying

Longaberger workers the incentive pay received by their

counterparts on the traditional product line, to award the

Longaberger people the $3 add-on when it replaced the

incentive pay. It was not my opinion, however, by which the

parties to the collective bargaining agreement undertook to be

bound; what they bargained for was the arbitrator’s opinion,

not mine. And I am not so sure it would be unreasonable to

conclude that the considerations which precluded the transfer

of a fluctuating incentive rate did not apply to the transfer of

a rate which, unlike the incentive rate, never fluctuated in

accordance with output or downtime. In any event, this is

precisely the sort of determination the parties agreed to let the

arbitrator make.

Regardless of one’s opinion as to its soundness, the 2001

decision was, in my judgment, a clarification of an ambiguity

in the original award. As such, for reasons ably explained in
No. 02-3773 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

25

Judge Clay’s opinion, the 2001 decision does not run afoul of

the functus officio doctrine. 

Under Ohio caselaw, moreover, the union’s request for

enforcement of the arbitral award as clarified does not run

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

26 Sterling China Co. v. Glass, Molders,

Pottery, Plastics & Allied Workers

Local No. 24, et al.

No. 02-3773

§ 2711.13 has no application to a judicial enforcement

proceeding.

For all of the foregoing reasons, I concur in the affirmance

of the judgment rendered by the district court.