Brown v. Witco Corporation

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 23, 2003
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 02-30508
_____________________

GLENN BROWN,

Plaintiff - Appellant,

PAPER, ALLIED-INDUSTRIAL, CHEMICAL AND ENERGY WORKERS
INTERNATIONAL UNION, AFL-CIO, CLC Local Union 4-447,

Intervenor - Appellant,

v.

WITCO CORPORATION,

Defendant - Appellee.

__________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________

Before REAVLEY, JOLLY, and JONES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Plaintiff-appellant Glenn Brown filed this action in state

court seeking enforcement of an arbitration award in his favor

against his employer Witco Corporation. After the case was removed

to federal court by Witco, the district court stayed the case and

remanded the award to the arbitrator for a specifically limited

purpose. Following the arbitrator’s decision on remand, the

district court determined that the arbitrator had exceeded the

limited authority it had granted him. Accordingly, the district
court vacated that part of the arbitrator’s decision that exceeded

his authority on remand and enforced the remainder of the award.

Brown and his union, the Paper, Allied-Industrial, Chemical

and Energy Workers International Union, Local 4-447 (the

intervening plaintiff-appellant) now appeal the district court’s

judgment. After threading our way through the twists and turns of

the case, and after considering the several arguments made by the

parties, we affirm the judgment of the district court.

I

The procedural history of this arbitration case is unusually

long and sinuous, and a recitation of that history is necessary to

explain the issues raised on appeal.

In 1997, Witco discharged Brown because of chronic

absenteeism; however, the company failed to give Brown timely

notice of its decision to discharge him, as required by the

collective bargaining agreement between Witco and Brown’s Union.

In response, the Union filed a formal grievance against Witco on

Brown’s behalf, and Witco and the Union ultimately arbitrated their

dispute before Arbitrator Raymond L. Britton on January 22, 1999.

On May 24, 1999, the arbitrator ordered that Brown “be reinstated

with full back pay and seniority and that he be made whole except

for overtime.” (The “May 24 Award.”)

Brown was reinstated in accordance with the May 24 Award.

However, Witco and the Union were unable to reach an agreement on

2
the calculation of Brown’s back pay award.1 Consequently, in July

and August 1999, Witco and the Union each asked Arbitrator Britton

to clarify how the parties should calculate Brown’s back pay award.

The Union asked the arbitrator to clarify whether the award

included regularly scheduled overtime and night shift premium

payments. Witco asked the arbitrator to clarify whether the award

should be reduced based on Brown’s interim earnings and Brown’s

apparent failure to mitigate his damages by seeking new

employment.2 Neither Witco nor the Union – Brown’s exclusive

bargaining representative – ever objected to the clarification

requests of the other.

On August 27, 1999, the arbitrator responded to the parties’

clarification requests. (The “August 27 Clarification Letter.”)

The arbitrator noted that “neither party requested that

jurisdiction be retained for the purpose of addressing any

1
Brown was discharged in July 1997 and reinstated in June
1999. According to the parties, Brown’s total back pay for this
period amounted to $85,801.58 when calculated on a “straight time”
basis – i.e., when calculated based solely on the company’s
“straight time” hourly rate without regard to any additional
factors, such as regularly scheduled overtime or special premiums
paid to workers on the night shift and without regard to any of
Brown’s interim earnings.
2
Brown testified at the arbitration hearing that he had
not been regularly employed from July 1997 until June 1999 and that
he earned about $3,000 during this time from self-employment. The
Union also submitted Brown’s past earnings statement, dated July
11, 1999, indicating that Brown had earned approximately $2,500 to
$3,000 from July 1997 to June 1999 performing odd jobs. There is
apparently no testimony as to whether Brown made any effort to find
new employment during this time.

3
questions that might arise as to the implementation of the remedy

awarded,” and he expressed the view that, therefore, “jurisdiction

was not retained.” Nevertheless, the arbitrator provided

guidelines for construing the original May 24 Award. He stated

that the language of the back pay award was intended to grant Brown

back pay based only on the company’s “straight time” hourly rate

for all hours of Brown’s regular shifts. Because payment of night

shift premiums and regularly scheduled overtime would be in

addition to the “straight time” hourly rate, the arbitrator

concluded that such payments would not comport with the intent of

his original May 24 Award. Turning to the interim earnings and

mitigation issues raised by Witco, the arbitrator noted that the

May 24 Award was silent with respect to these issues; nevertheless,

he concluded that it was appropriate to consider these issues in

order to clarify the intent of the original May 24 Award. He also

concluded that Brown did have an “affirmative duty to reasonably

mitigate the amount of loss that he suffered as a result of

[Witco’s wrongful] discharge and to show that he made a good faith

effort to satisfy this obligation by seeking comparable employ.”

The arbitrator further stated that the “[f]ailure of the Grievant

to establish that he actively and adequately searched for

comparable work justifies that a reasonable deduction be made from

the $85,801.58 figure calculated as back wages.”3 Witco urged the

3
Brown and the Union appear to argue that these
determinations were legally erroneous and factually baseless

4
arbitrator to deduct about $50,000 or $60,000 from the $85,801.58

figure calculated as back wages by the parties. However, the

arbitrator rejected this suggestion because it was not based on any

formula or evidence that demonstrated the amount Brown should have

been able to earn if he had taken reasonable steps to mitigate his

damages. Instead, the arbitrator stated that, for the purposes of

mitigation of Brown’s damages, the parties should use the average

wage of similar workers in the New Orleans area as a “guide.”

Specifically, the arbitrator said:

In endeavoring to determine an appropriate
reduction to the Grievant’s back-pay award,
the Arbitrator is of the view that it would be
more in keeping with the Award if the parties
use as a guide, the average wage paid to
employees possessing the experience, skills
and background of the Grievant in the New
Orleans area. Further, the Grievant should be
afforded a grace period of three (3) months as
representative of the time reasonably
necessary to obtain comparable employment.

because Witco did not raise mitigation as an affirmative defense
during the initial arbitration hearing. However, the Union has not
sought to modify or correct the arbitration award. In any event,
the courts should not review the merits of an arbitrator’s decision
pursuant to a collective bargaining agreement, even if a party
alleges that the arbitrator’s decision rests on errors of fact or
law. See Major League Baseball Players Association v. Garvey, 532
U.S. 504, 509 (2001). Accordingly, we do not address the
correctness of the arbitrator’s ruling.

5
August 27 Clarification Letter at 2.4 After receiving the

arbitrator’s August 27 Clarification Letter, Witco tendered to

Brown a check for $13,441.57, reflecting three months back wages

for the “grace period” prescribed by the arbitrator and a bonus

that was paid to all Witco employees during the period between

Brown’s discharge and his reinstatement. Brown cashed Witco’s

check. However, the Union and Witco were unable to reach any

further agreement regarding any additional amount of back pay owed

to Brown.

In November 1999, while Witco and the Union were still

negotiating the total amount of Brown’s back pay award, Brown

personally filed suit against Witco in state court seeking

confirmation and enforcement of the original May 24 Award. The

Union was not a party to the case at this point. Witco promptly

removed the case to federal district court based on federal

question jurisdiction and answered Brown’s complaint.5 Witco then

4
The Union also asked the arbitrator to clarify one issue
that does not appear to be directly related to the calculation of
Brown’s back pay award. The Union asked the arbitrator to make it
clear that Witco should expunge Brown’s disciplinary record in
accordance with the provisions of the collective bargaining
agreement. In his August 27 Clarification Letter, the arbitrator
indicated that, consistent with the terms of the collective
bargaining agreement and the May 24 Award, Witco should not
consider any attendance violation by Brown that occurred more than
one year before Brown was terminated and any other violation that
occurred more than three years before Brown was terminated.
5
Brown’s enforcement action arises under § 301 of the
Labor Management Relations Act, 29 U.S.C. § 185(a), because Brown’s
claim requires the court to interpret his rights under a collective
bargaining agreement and determine whether the agreement has been

6
moved to stay Brown’s enforcement action and remand the case to the

arbitrator to clarify further how to implement Brown’s back pay

award. Brown opposed the remand motion, arguing that the May 24

Award was final and unambiguous in its determination that Brown was

entitled to full back pay. The case was referred to a magistrate

judge for all proceedings and for judgment in accordance with 28

U.S.C. § 636(c) upon written consent of all parties.

In ruling on the remand motion, the magistrate judge agreed

with Witco in large part, holding that the arbitrator retained

breached. See Carrion v. Enterprise Ass’n, 227 F.3d 29, 34
(2d Cir. 2000) (§ 301 jurisdiction extends to law suits by a
represented employee seeking to enforce an arbitration award
against an employer); Cleveland v. Proca Co. 38 F.3d 289, 296 & n.5
(7th Cir. 1994) (same). See also DelCostello v. International
Brotherhood of Teamsters, 462 U.S. 151, 165 (1983); Thomas v. LTV
Corp. 39 F.3d 611, 621-22 (5th Cir. 1994). Such a claim is,
according to the Supreme Court, a “hybrid” claim against both the
employer and the union “amounting to a direct challenge to the
private settlement of disputes under the collective bargaining
agreement.” DelCostello, 462 U.S. at 165 (quotations and citations
omitted). The employee’s cause of action against the employer
arises directly from § 301. If the employee so chooses, he may sue
one defendant and not the other, but the case to be proved is the
same whether one or both are sued. Thomas, 39 F.3d at 621-22. The
employee must allege and prove both that the employer has breached
the collective bargaining agreement and that the union has breached
its duty of fair representation. Id. (citing Daigle v. Gulf States
Utilities Co., Local 2286, 794 F.2d 974, 977 (5th Cir. 1986)). See
also DelCostello, 462 U.S. at 165-66. In this case, Brown does not
appear to have alleged – much less shown – any breach of the
Union’s duty of fair representation. Accordingly, Brown may have
failed to state an adequate § 301 claim. However, neither Witco
nor the Union appears to have ever raised this issue below and no
one raises the issue on appeal. Accordingly, we do not decide
whether Brown has personally stated a proper § 301 claim in this
case. In any event, as an intervening plaintiff the Union clearly
does state a claim under § 301, so there can be no question about
our subject matter jurisdiction.

7
jurisdiction to clarify his May 24 Award as a matter of law; that

the parties had timely requested such clarification; and that the

August 27 Clarification Letter is a timely and binding

clarification of the May 24 Award. However, the magistrate judge

ultimately denied Witco’s motion to remand, finding the clarified

arbitration award to be “clear and unambiguous as to both the

content of the back pay award and the method used to calculate it.”

After the Union intervened, Witco filed a second motion

seeking remand to the arbitrator for clarification regarding the

proper method for determining the “average wage” figure referenced

in the arbitrator’s August 27 Clarification Letter. Brown opposed

the motion for the same reasons he opposed Witco’s first motion,

but the Union took a different position. The Union agreed that a

remand was appropriate, but it argued that the court should remand

the case to the arbitrator with instructions to revisit all of his

previous determinations regarding Brown’s interim earnings and his

duty to mitigate damages.

The magistrate judge agreed with Witco and granted the

company’s motion to stay and remand the case. According to the

magistrate, it had become apparent that the parties disagreed as to

the exact meaning of “the average wage paid to employees possessing

the experience, skills, and background of the Grievant in the New

Orleans area.” Because such an average wage could not be

determined from an undisputed source of information, the magistrate

judge concluded that the arbitrator should clarify exactly what

8
that average wage figure should be. However, the magistrate judge

found the remainder of the May 24 Award and the August 27

Clarification Letter to be clear and binding on the parties.

Accordingly, the magistrate specifically stated that the arbitrator

could not reconsider the remainder of the clarified award upon

remand.6

On remand to the arbitrator, Witco presented affidavit

evidence from an expert witness regarding the average wage paid to

employees in the New Orleans area possessing Brown’s experience,

skills, and background. The Union, however, chose not to present

any evidence on Brown’s behalf regarding the average wage issue.

Instead, the Union presented evidence only to support its claim

that Brown had made a reasonable good faith effort to search for

employment and mitigate his damages. Over Witco’s objection,

Arbitrator Britton accepted such evidence. On December 14, 2001,

the arbitrator found that Witco’s evidence supported a finding of

an average wage of $21.51 per hour for an average work week of

forty-two hours. (“December 14 Remand Decision.”) However,

Arbitrator Britton concluded that

inasmuch as the parties have agreed to the
figure of $85,801.58 calculated as back wages,
the Arbitrator finds that the Grievant is
entitled to the sum of $85,801.58 less the
amount paid to the Grievant of $13,441.57 and
$3,500 derived from outside work. It is the

6
The magistrate also stated that the arbitrator could
receive whatever evidence the arbitrator considered appropriate and
necessary to make the clarification specified in the remand order.

9
 further view of the arbitrator that the work
ethic of the Grievant should be considered as
a factor in the computation of the back wages
due the Grievant.... Because of this
demonstrated poor work ethic, a further
deduction of $8,500 is warranted.... So
calculated, the total amount due the Grievant
is $60,360.01.

December 14 Remand Decision at 2. In other words, the arbitrator

essentially abrogated the determinations that he made in the August

27 Clarification Letter, which provided for a “reasonable

deduction” in Brown’s back pay award on account of Brown’s failure

to satisfy his affirmative duty to mitigate his damages by seeking

comparable employment. The arbitrator also ignored the specific

formula that he had provided for calculating such a “reasonable

deduction.” Instead, the arbitrator awarded Brown full back pay,

calculated on a straight time basis with deductions only for

Brown’s actual interim earnings, his history of absenteeism, and

the amount that Witco had already paid him.

After receiving the arbitrator’s clarification decision, the

parties jointly moved the magistrate judge to lift his stay on the

case, and they filed cross motions for summary judgment. On April

26, 2002, the magistrate judge granted Witco’s motion for summary

judgment and denied the summary judgment motions filed by Brown and

the Union. (Hereinafter, the “April 26 Summary Judgment Order.”)

In doing so, the magistrate judge reaffirmed his prior decision

holding Arbitrator Britton’s August 27 Clarification Letter to be

a binding clarification of his initial award. The magistrate judge

10
further held that the arbitrator exceeded the scope of his

authority under the remand order by revisiting the clarifications

he made in his August 27 Clarification Letter to the parties

authorizing a “reasonable deduction” in Brown’s back pay award on

account of Brown’s failure to establish his good faith effort to

seek comparable employment and prescribing a specific method for

calculating such a deduction. Because those unambiguous

determinations had already been confirmed and enforced by the

magistrate judge’s remand order, the magistrate held that

Arbitrator Britton had no authority on remand to reconsider them:

The only issue upon remand was “to determine
exactly how that ‘average wage’ should be
calculated” and, upon determining that number,
to plug it into the formula and calculate the
amount of back wages due under that formula.

April 26 Summary Judgment Order at 12 (emphasis in original).

Accordingly, the magistrate judge vacated those parts of the

arbitrator’s remand decision that exceeded the scope of his limited

authority on remand. The magistrate judge enforced the remainder

of the Arbitrator’s decision and awarded Brown back pay in the

amount of $85,801.58 reduced by an amount equal to $21.51 per hour

for a forty-two hour week for the period of time beginning three

months after the date of Brown’s discharge through the date of his

reinstatement.

II

Both Brown and the Union timely appealed the district court’s

final judgment. On appeal, Brown argues that the magistrate judge

11
erred by not enforcing the original May 24 Award, which ordered

that Brown be reinstated with seniority and “full back pay.” The

Union makes a different argument. It contends that the magistrate

judge improperly limited the arbitrator’s authority on remand. The

Union argues, as it did below, that the magistrate judge should

have remanded the case to the arbitrator for clarification of all

the arbitrator’s rulings regarding Brown’s duty and apparent

failure to mitigate his damages. Both the Union and Brown further

argue that the magistrate erred by vacating parts of the

arbitrator’s decision on remand and selectively enforcing the

remainder.

It is not surprising that Witco maintains that the magistrate

judge got the case exactly right. In response to Brown’s argument,

Witco contends that the arbitrator had authority to clarify his

original May 24 Award and that the August 27 Clarification Letter

is a timely clarification of that award that is binding on all the

parties. In response to the Union’s argument, Witco argues that

the magistrate judge did not err in remanding the case to the

arbitrator for the limited purpose of clarifying the exact meaning

of “the average wage paid to employees possessing the experience,

skills, and background of the Grievant in the New Orleans area.”

Witco further argues, in response to both Brown and the Union, that

the district court did not err in vacating those parts of the

arbitrator’s decision that exceeded the arbitrator’s authority

under the remand order.

12
 This court reviews a district court order confirming and

enforcing an arbitration award de novo, using the same standard as

the district court. National Gypsum Co. v. Oil, Chemical, and

Atomic Workers International Union, 147 F.3d 399, 401-02 (5th Cir.

1998). The scope of judicial review of a labor arbitration award

pursuant to a collective bargaining agreement is extremely limited.

See United Food and Commercial Workers Union AFL-CIO v. Pilgrim’s

Pride Corp., 193 F.3d 328, 332 (5th Cir. 1999). A court is not

authorized to review the merits of the arbitrator’s decision, even

if a party alleges that the arbitrator’s decision rests on errors

of fact and law. See Garvey, 532 U.S. at 509. Furthermore, a

court is required to enforce an arbitration award only as written

by the arbitrator. See Oil, Chemical & Atomic Workers

International Union, Local 4-367 v. Rohm & Haas, Texas, Inc., 677

F.2d 492, 495 (5th Cir. 1982). Thus, if the arbitration award in

question is ambiguous in its scope or application, it is

unenforceable. San Antonio Newspaper Guild Local 25 v. San Antonio

Light Division, 481 F.2d 821, 824 (5th Cir. 1973). A court may not

interpret the award in order to resolve the ambiguity and implement

the award; instead, the court must remand the award to the

arbitrator with instructions to clarify the award’s particular

ambiguities. Id.; see also Local Union 59, International

Brotherhood Of Electrical Workers, AFL-CIO v. Green Corp., 725 F.2d

264 (5th Cir. 1984) (same). However, once the court is presented

with an unambiguous, enforceable award, the arbitrator’s award must

13
be upheld so long as the arbitrator’s decision “draws from the

essence of the collective bargaining agreement” and does not exceed

the scope of the arbitrator’s authority. National Gypsum, 147 F.3d

at 401-02 (internal citations and quotations omitted).

A. Brown’s Arguments.

Brown argues (1) that the arbitrator’s original May 24 Award

was final and unambiguous, (2) that Witco failed to file a motion

seeking modification of the May 24 Award pursuant to the Federal

Arbitration Act in a timely manner, and (3) that the arbitrator

lacked jurisdiction to modify the May 24 Award via his August 27

Clarification Letter. Brown therefore argues that the May 24 Award

should be enforced as a final award without regard to the August 27

Clarification Letter or the subsequent decision on remand and that

he should be awarded $85,801.58 – the amount that the parties have

stipulated to be Brown’s full back pay calculated on a straight

time basis without consideration of mitigation or any other

factors.

(1)

Generally speaking, an arbitration award for “full back pay”

is not ambiguous on its face simply because it fails to address

whether the award is to be offset by a grievant’s interim earnings

or a grievant’s failure to mitigate his damages by taking

reasonable steps to seek interim employment. See International

Chemical Workers Union, Local 683 v. Columbian Chemicals Co., 331

F.3d 491, 498-99 (5th Cir. 2003). See also International Union of

14
Operating Engineers, Local No. 841 v. Murphy Co., 82 F.3d 185 (7th

Cir. 1996). But cf. San Antonio Newspaper Guild, 481 F.2d at 822-

23 (finding such an award ambiguous under certain circumstances).

However, in this case, it seems clear that Brown cannot argue that

the May 24 Award is a final and unambiguous award without

consideration of the August 27 Clarification Letter. Although

Brown raised this argument in opposition to Witco’s first and

second motions to remand, Brown failed to raise the argument during

the summary judgment phase of the proceedings below. At the

summary judgment stage of the proceedings, Brown asked only for

enforcement of the arbitrator’s December 14 Remand Decision and for

damages in the amount of $60,360.01. Thus, Brown has forfeited any

argument that he is entitled to $85,801.58 based on the unambiguous

terms of the May 24 Award by failing to raise the argument properly

below. See Topalian v. Ehrman, 954 F.2d 1125, 1132 n.10 (5th Cir.

1992); Watts v. Kroger Co., 170 F.3d 505, 511 (5th Cir. 1999);

Tel-Phonic Services, Inc. v. TBS Int'l, Inc., 975 F.2d 1134,

1142 n.8 (5th Cir. 1992).

Accordingly, this court can consider Brown’s argument only

insofar as it may show a plain error that will result in a manifest

miscarriage of justice. Nathan Rodgers Constr. & Realty Corp. v.

City of Saraland, Ala., 676 F.2d 162, 163 (5th Cir. 1982) (no plain

error in district court's failure to consider plaintiff's tolling

argument not clearly addressed to district court). Especially in

the light of the long and convoluted procedural history of this

15
case, it is clear that there is no plain error – much less a

manifest miscarriage of justice – in the district court’s decision

to recognize and confirm the arbitrator’s August 27 Clarification

Letter as a binding clarification of the original arbitration

award. Both Witco and the Union, as Brown’s exclusive bargaining

representative in the arbitration, voluntarily requested that the

arbitrator clarify the May 24 Award in mid July and late August

1999 – several months before Brown filed the instant enforcement

action.7 In response to their request, Arbitrator Britton plainly

did clarify the May 24 Award, as described above. Although the

arbitrator expressed the view that he did not have jurisdiction to

modify the May 24 Award to help the parties implement the award, he

clearly did have jurisdiction to clarify what he originally

intended to award Brown in the light of the specific issues and

ambiguities raised by both parties post-arbitration. See Office &

Professional Employees International Union, Local No. 471 v.

Brownsville General Hospital, 186 F.3d 326, 331 (3d Cir. 1999);

Glass Molders, Potters, Plastics & Allied Workers International

Union v. Excelsior Foundry, 56 F.3d 844, 848 (7th Cir. 1995).

Therefore, Arbitrator Britton’s August 27 clarification of the May

24 Award must be deemed final and binding on the parties.

7
Brown does not appear to allege or argue that the Union
breached its duty of fair representation either by requesting
clarification from the arbitrator or by failing to oppose Witco’s
request for clarification. Accordingly, the Union’s actions in the
course of the arbitration can fairly be attributed to Brown.

16
 (2)

Brown urges the court to disregard the August 27 Clarification

Letter because Witco never served Brown or the Union with notice of

a motion to modify, correct, or vacate the award as required by the

Federal Arbitration Act. See 9 U.S.C. §§ 1-16 (the “FAA”).

However, Brown’s reliance on the statute of limitations of the FAA

is misplaced. The FAA does not apply to cases reviewing

arbitration awards pursuant to a collective bargaining agreement or

any other "contracts of employment of ... workers engaged in

foreign or interstate commerce." See 9 U.S.C. § 1. See also United

Paperworkers International Union v. Misco, 484 U.S. 29, 41 n.9

(1987). When an arbitration decision arises from the terms of the

collective bargaining agreement, judicial review of the arbitration

award is authorized not by the FAA but by the terms of Section 301

of the Labor Management Relations Act. See 9 U.S.C. § 1; 29 U.S.C.

§ 185 (the “LMRA” or “Section 301"). See also Misco, 484 U.S. at

41 n.9; Columbian Chemicals Co., 331 F.3d at 494-95. Thus, we are

not persuaded by Brown’s arguments based on the FAA.8

8
Courts may rely on the FAA for guidance in reviewing an
arbitration award arising under a collective bargaining agreement
and Section 301 of the LMRA, but courts are not obligated to follow
the FAA in every technical detail. Columbian Chemicals Co., 331
F.3d at 494-95 (citing cases). Historically, this court has ruled
on labor arbitration disputes involving collective bargaining
agreements pursuant to Section 301 without reference to the FAA.
Id. In any event, the FAA’s statute of limitations provides no
real support for Brown’s position. As the magistrate judge
correctly noted, the FAA’s three month statute of limitations
period governs the period of time within which a party must file a
lawsuit in federal court asking the court to vacate, modify, or

17
 (3)

Brown argues that the May 24 Award was final and that the

arbitrator therefore lacked jurisdiction to clarify the award via

his August 27 Clarification Letter.9 Brown makes this argument

based solely on the plain language of the collective bargaining

agreement, which provides that “[t]he decision of the arbitrator

shall be final and binding on both parties.” However, contrary to

Brown’s argument, these plain words alone do not mean that the

arbitrator has no authority to interpret or construe his

arbitration award, and Brown’s reliance on them provides no real

foundation for the argument he makes.

As Witco suggests, Brown’s legal conclusion that the

arbitrator lacked authority to issue the August 27 Clarification

Letter seems to rely on the doctrine of functus officio (“a task

performed”) – a common law rule that bars an arbitrator from

revisiting the merits of an award once the award has been issued.

See Bayne v. Morris, 68 U.S. (1 Wall.) 97, 99 (1863) (summarizing

the strict version of the rule that prevailed at common law). This

court has not often addressed the scope of the functus officio

correct an arbitration award. See 9 U.S.C. § 12. The FAA does not
regulate the time in which the parties may request clarification of
an arbitration award from the arbitrator. That is essentially a
matter of contract between the parties that should be governed by
the terms of the collective bargaining agreement.
9
Article XVIII, section 3 of the collective bargaining
agreement between Witco and the Union provides that “[t]he decision
of the arbitrator shall be final and binding on both parties.”

18
doctrine. See Anderman/Smith Operating Co. v. Tennessee Gas

Pipeline Co., 918 F.2d 1215, 1220 (5th Cir. 1990). However, other

circuits have addressed the doctrine at length, and we find their

view of the doctrine to be persuasive. See generally Brownsville

General Hospital, 186 F.3d at 331 (discussing the modern relevance

of the doctrine of functus officio in labor cases); Excelsior

Foundry, 56 F.3d at 846-48 (same); Domino Group, Inc. v. Charlie

Parker Memorial Foundation, 985 F.2d 417, 420-21 (8th Cir. 1993)

(invoking the doctrine of functus officio in the context of

commercial arbitration).

Although the doctrine of functus officio was strictly enforced

at common law (often to thwart the effectiveness of arbitration),

in the wake of the Supreme Court’s pro-arbitration decision in

Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957), the

doctrine has not been as strictly enforced in labor dispute cases

arising under Section 301 of the LMRA. Excelsior Foundry, 56 F.3d

at 847-48; Colonial Penn Insurance Co. v. Omaha Indemnity Co., 943

F.2d 327 (3d Cir. 1991). Furthermore, there are a number of well-

recognized exceptions to the functus officio rule. An arbitrator

can (1) correct a mistake which is apparent on the face of his

award; (2) decide an issue which has been submitted but which has

not been completely adjudicated by the original award; or (3)

clarify or construe an arbitration award that seems complete but

proves to be ambiguous in its scope and implementation. See

Excelsior Foundry, 56 F.3d at 847-48; Colonial Penn Insurance Co.,

19
943 F.2d at 332. In this case, the arbitrator’s August 27

Clarification Letter clearly falls within the clarification and

completion exceptions to the functus officio rule. See Excelsior

Foundry, 56 F.3d at 846-48. Accordingly, the arbitrator was within

his authority under the collective bargaining agreement when he

clarified the intent of his original award via the August 27

Clarification Letter.

Finally, in the absence of any contractual provision or formal

arbitration rule expressly to the contrary, it seems clear that an

arbitrator may exercise his power to clarify the terms of an award

when he is asked to do so by parties mutually and without any

party’s objection within a reasonable period of time. See

Excelsior Foundry, 56 F.3d at 848.10 In this case, the Union made

its request for clarification on Brown’s behalf fifty-one days

after the May 24 Award, and Witco made its request for

clarification seventy-one days after the May 24 Award. Such

requests for clarification are not unreasonable or untimely under

the circumstances of this case. Thus, there clearly is no plain

error in the magistrate judge’s decision to enforce the August 27

10
We must acknowledge that we would be presented with a
different case if, for example, the Union had not asked for
clarification of the May 24 Award or if the Union had formally
objected to Witco’s request for clarification as being a request
that exceeded the scope of the arbitrator’s authority under the
terms of the collective bargaining agreement.

20
Clarification Letter as a timely and binding clarification of the

arbitrator’s original May 24 Award.11

11
Our decision today is not conflict with this court’s
recent decision in Columbian Chemicals, 331 F.3d at 498-99. In
Columbian Chemicals, an arbitrator ordered an employer to reinstate
a wrongly discharged employee and “make him whole in salary,
benefits, and seniority.” The union and the employee sued to
enforce the award. The employer moved the court to remand the
award to the arbitrator with instructions to clarify whether the
grievant’s failure to mitigate should be taken into account as an
offset to the award. Id. A panel of this court held that the
company had waived any issue of offsets by failing to raise that
issue with the arbitrator and by failing to challenge the award
within the ninety day limitations period pursuant to the FAA. Id.
Under those particular circumstances, the panel concluded that the
award’s silence with regard to offsets meant that no offset was
granted. Id.

In contrast to Columbian Chemicals, Witco did raise the issue
of Brown’s mitigation with the arbitrator in its request for
clarification before this enforcement action was filed.
Furthermore, the arbitrator responded to that request in a
reasonable and timely fashion, clarifying the original arbitration
award and finding in Witco’s favor on the mitigation issue – again,
before the suit seeking to enforce the award. Therefore, we should
defer to the judgment of the arbitrator and enforce both the
original arbitration award and the arbitrator’s timely
interpretation of the award because “‘[i]t is the arbitrator’s
construction which was bargained for.’” See San Antonio Newspaper
Guild, 481 F.2d at 825 (quoting United Steelworkers of America v.
Enterprise Wheel and Car Corp., 363 U.S. 593, 599 (1960)).

To be sure, the procedural posture of this case is more like
San Antonio Newspaper Guild than Columbian Chemicals. Compare San
Antonio Newspaper Guild, 481 F.2d at 822-23 with Columbian
Chemicals, 331 F.3d at 498-99 (distinguishing San Antonio Newspaper
Guild). In San Antonio Newspaper Guild, a similar dispute over the
scope of a back pay arbitration award was resolved in favor of the
company through arbitration by a second arbitrator shortly after
the union’s filing of an enforcement action in federal court. 481
F.2d at 822-26. After finding the original “make whole” back pay
award to be ambiguous, this court affirmed the arbitration award,
as clarified by the second arbitrator’s decision, noting that it
was not for this court to second-guess the arbitrator’s judgment
with respect to meaning of the original back pay award. Id. In
this case too, we must enforce the May 24 Award, as construed by

21
 B. The Union’s Arguments.

The Union does not argue, as Brown does, that the magistrate

erred when he refused to enforce the May 24 Award without

consideration of the August 27 Clarification Letter. Instead, the

Union argues that the magistrate judge’s error was in the scope of

his remand to the arbitrator. Specifically, the Union argues that

the magistrate judge impermissibly limited the arbitrator’s

authority on remand when he instructed the arbitrator only to

clarify the precise meaning of “the average wage paid to employees

possessing the experience, skills and background of the Grievant in

the New Orleans area” and to calculate Brown’s back pay award based

on the formula set forth in the August 27 Clarification Letter.

According to the Union, remand of all of the arbitrator’s previous

determinations regarding Brown’s interim earnings and his duty to

mitigate damages was necessary in order to resolve the ambiguous

and contradictory nature of the award, as clarified by the August

27 Clarification Letter.

The magistrate judge rejected the Union’s remand argument. He

found the original award and the August 27 Clarification Letter to

be ambiguous only with respect to the precise meaning of “the

average wage paid to employees possessing the experience, skills

and background of the Grievant in the New Orleans area.” After a

the arbitrator’s August 27 Clarification Letter, in order to give
the parties that for which they bargained – i.e., the judgment of
the arbitrator.

22
de novo review of the record in this case we find no error in the

magistrate’s reading of the May 24 Award and the August 27

Clarification Letter.12

Although the Union argues that this clarification ruling made

Brown’s arbitration award ambiguous and contradictory, there is

nothing unclear or obviously inconsistent about the arbitrator’s

words in the original award and in the August 27 Clarification

Letter. In the letter, pursuant to the parties’ mutual requests,

the arbitrator stated (1) that Brown should be reinstated with full

back pay; (2) that Brown had a duty to mitigate his damages and

that Brown had failed to show that he had taken reasonable steps to

look for new employment; (3) that in calculating Brown’s full back

pay, the parties should deduct a reasonable amount from the

stipulated amount of $85,801.58 on account of that failure to

mitigate his damages; (4) that the parties should use the “average

wage” of a similarly situated worker over the interim of Brown’s

wrongful discharge as a guide for determining what the total

deduction should be; and (5) that the parties should give Brown a

three month grace period with no deduction to account for the time

necessary to obtain comparable employment.

12
Although a court should not review the merits of an
arbitrator’s decision or substitute its judgment for that of the
arbitrators, in an action to confirm or enforce an arbitration
award, the court itself must determine whether the arbitration
award is ambiguous and decide what must be clarified by the
arbitrator on remand. Cf. San Antonio Newspaper Guild, 481 F.2d at
825; Rohm & Haas, Texas, Inc., 677 F.2d at 495; Brownsville General
Hospital, 186 F.3d at 332-33; Domino Group, Inc., 985 F.2d at 420.

23
 Thus, on remand from the magistrate judge, all that the

arbitrator had to do under the magistrate judge’s clear remand

order was determine precisely what the “average wage” figure should

be and use that figure in the formula set forth in the August 27

Clarification Letter to calculate the total amount of Brown’s back

pay award. The magistrate judge made it clear that the arbitrator

could receive whatever evidence was appropriate and necessary to

make this clarification, but the magistrate also made it equally

clear that the remainder of the May 24 award and the August 27

Clarification Letter were deemed clear and binding on the parties.

Nevertheless, the arbitrator went beyond the express scope of the

remand order by issuing a clarification that essentially reversed

the determinations that he made in the August 27 Clarification

Letter.

Notwithstanding the arbitrator’s disregard of the limited

scope and purpose of the magistrate’s remand order, Brown and the

Union argue that the district court erred by vacating those parts

of the arbitrator’s December 14 Remand Decision that exceeded the

scope of the court’s remand order. They argue that the

arbitrator’s December 14 Remand Decision was supported by the

record and consistent with the terms of the collective bargaining

agreement and, given the deferential standard of review that

applies in actions to confirm and enforce arbitration awards, that

the decision therefore must be enforced in its entirety. This

argument seems inapposite to the issue we are specifically

24
addressing. Although it is true that the arbitrator draws his

authority from the terms of the collective bargaining agreement and

has broad discretion to adjudicate those matters that are properly

submitted to him pursuant to a collective bargaining agreement, the

immediate issue before us is whether the arbitrator has the

authority to disregard the express terms of a federal court’s

remand order and effectively reverse determinations that the court

has already confirmed to be unambiguous and binding on the parties.

Clearly, he does not. Once a court of competent jurisdiction has

confirmed that an arbitration decision is unambiguous and binding

on the parties, the arbitrator becomes functus officio with respect

to that portion of the arbitration award and lacks authority to

reconsider those aspects of his decision that are unambiguous and

binding. Brownsville General Hospital, 186 F.3d at 332-33; Domino

Group, Inc., 985 F.2d at 420. Thus, on remand, the arbitrator is

limited in his review to the specific matter or matters remanded

for his clarification and he may not rehear or redetermine matters

outside the scope of the remand order. See Brownsville General

Hospital, 186 F.3d at 332-33; Domino Group, Inc., 985 F.2d at 420.

It follows, therefore, that if the arbitrator exceeds the scope of

a limited remand order, then the court may vacate those portions of

the arbitrator’s decision on remand that go beyond his limited

authority to clarify, complete, or correct the award that he has

already made. Accordingly, the district court was correct when it

25
vacated those parts of the arbitrator’s December 14 decision on

remand and enforced the remainder of the award.

III

For the foregoing reasons, the judgment of the district court

is, in its entirety,

AFFIRMED.

26