Sterling China Company v. Glass, Molders, Pottery, Plastics & Allied Workers Local No. 24

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, for Appellees.
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

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No. 02-3773 Sterling China Co. v. Glass, Molders,
Pottery, Plastics & Allied Workers
Local No. 24, et al.
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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.

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No. 02-3773 Sterling China Co. v. Glass, Molders,
Pottery, Plastics & Allied Workers
Local No. 24, et al.
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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
1See 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

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No. 02-3773 Sterling China Co. v. Glass, Molders,
Pottery, Plastics & Allied Workers
Local No. 24, et al.
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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, I have 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.

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Local No. 24, et al.
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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.

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No. 02-3773 Sterling China Co. v. Glass, Molders,
Pottery, Plastics & Allied Workers
Local No. 24, et al.
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2O.R. C. §§ 2711.09 and 2711.13 specifically require parties to file
motions with the court of com mon pleas w ithin 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
motio n, pursuant to O.R .C. §2 711 .09, b y the Union if they so cho se.
Additiona lly, 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, C ty. & Mun. Emp. Ohio Council 8, AFL-CIO, Local
2243, et al., 646 N.E.2d 813, 815-16 (1999). This matter does not
involve an issue of “tolling,” nor did the Union attempt to modify, vacate,
correct or confirm the August 1998 award, by way of a motion under
O.C.R. §§ 271 1.09 or 271 1.13. Furthermore, Galion is distinguishable
since the arbitrator there did not retain jurisdiction to clarify ambiguities,
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 respec ts.
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

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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:

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No. 02-3773 Sterling China Co. v. Glass, Molders,
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Local No. 24, et al.
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[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,

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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

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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

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No. 02-3773 Sterling China Co. v. Glass, Molders,
Pottery, Plastics & Allied Workers
Local No. 24, et al.
21
1This declaration was intend ed 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 jud gment pro ceedings, 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 “und er 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.

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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 fixed-
hourly-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

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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.

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