Appeal from the United States District Court for the Central District of Illinois. No. 94 C 3032--Richard Mills, Judge.
Before COFFEY, MANION, and KANNE, Circuit Judges.
Murphy Company fired six operating engineers for leaving their work stations ahead of schedule. The employees filed a grievance with their union, the International Union of Operating Engineers, Local No. 841 ("Union"). Murphy and the Union submitted the dispute to arbitration as required by a collective bargaining agreement. At the arbitration hearing, the parties filed a joint exhibit entitled "Grievance Form Fact Sheet" which briefly stated the provision of the collective bargaining agreement Murphy had allegedly violated and included the following under the label "Remedy sought":
Back Wages and all Benefits. Murphy Company [employees] be made whole all Wages and Fringes lost by members terminated had Murphy Company honored [the national agreement]. Also, reinstatement of terminated members. Due to past and ongoing problem I.U.O.E., Local [No.] 841 request [sic] the [national agreement] with Murphy Company be terminated immediately and all future extensions of the [national agreement] be denied.
Despite this expansive request for relief, the arbitration hearings focused exclusively on the propriety of the firings. The matter of damages never came up; nor did either party raise the damages issue in briefs submitted after the hearing. Thus, in making his decision the arbitrator never considered evidence of the amount of back wages potentially due nor of other interim sources of income (including unemployment benefits) that might decrease the size of an award. On October 26, 1993, the arbitrator found for the Union and issued a brief ruling:
The grievance has merit. The Company did not have proper cause to discharge the six Grievants. They shall be reinstated to the employment and made whole. The Company may file a reprimand form on each employee to indicate he had a first infraction of Rule 3 on December 16, 1992.
The parties quickly disputed the meaning of the "made whole" portion of the ruling. The Union demanded back pay without any deduction for interim earnings and Murphy insisted on an appropriate offset. On December 17, 1993, Murphy mailed a letter to the arbitrator requesting clarification of the make-whole order. By letter, the arbitrator agreed to resolve the issue without cost if both parties were willing to make a joint request, but indicated that until then he had no authority to make any additional rulings on the matter because he had already completed his assignment and been discharged ("functus officio"). The Union refused further arbitration, however, so Murphy went ahead and paid the six employees lost wages less estimated interim earnings. (Murphy estimated interim earnings from information the Union had provided before arbitration.) These checks were cashed with an express reservation of rights.
On February 4, 1994, the Union filed a petition in federal court to enforce the arbitration award and for attorney fees. Murphy's answer contended that the award was ambiguous and should be remanded to the arbitrator for clarification. On March 17, 1995, almost 17 months after the arbitrator's ruling, Murphy filed a motion pursuant to 9 U.S.C. sec. 3 to stay the enforcement action and compel arbitration of the disputed question of offsets for interim earnings. The district court denied the motion on the ground that Murphy had waived the offset issue by failing to raise it before the arbitrator. Alternatively, the court held that, even if the matter were not waived, Murphy's motion was untimely because under 9 U.S.C. sec. 12 the 90-day limitation period for vacating or correcting an arbitration award had passed.
Murphy argues on appeal that because the parties never raised the issue of damages at the hearing, the arbitration necessarily addressed only the question of whether the six employees were entitled to return to work. Thus, according to Murphy, it did not waive the offset issue; there was no reason to address it. As for the arbitrator's award: "At best" it "advises the parties that the six operating engineers should be 'made whole,' " but since there is "no basis for determining lost wages," let alone an offset, the "award is unenforceable." (Emphasis added.) Murphy concludes that since it has never sought to modify or challenge the arbitrator's ruling that the workers were improperly dismissed (the only matter Murphy believes the arbitration could have resolved), the 90-day limitation period was never triggered. Thus, Murphy asks that we direct the district court to grant its motion to stay litigation and compel arbitration of the heretofore unaddressed issue of damages.
Contrary to the Union's suggestion, we have jurisdiction over this appeal pursuant to the Federal Arbitration Act (FAA), 9 U.S.C. sec. 16. Briggs & Stratton v. Local 232, International Union, Allied Industrial Workers of America, 36 F.3d 712, 714-15 (7th Cir. 1994); Miller Brewing Co. v. Brewery Workers Local Union No. 9, 739 F.2d 1159, 1162 (7th Cir. 1984), cert. denied, 469 U.S. 1160 (1985) (FAA's exclusion of contracts of employment of workers engaged in interstate commerce limited to workers employed in transportation industries); Pietro Scalzititti Co. v. International Union of Operating Engineers, Local No. 150, 351 F.2d 576, 579-80 (7th Cir. 1965) (same). We review de novo the district court's denial of Murphy's motion to compel arbitration. Kresock v. Bankers Trust Co., 21 F.3d 176, 177-78 (7th Cir. 1994).
Given the lack of evidence, the arbitrator's decision to rule on the damages issue is certainly questionable. Generally, arbitrators should limit their rulings to those issues the parties have actually submitted for arbitration. See 9 U.S.C. sec. 11(b) (providing for modification or correction of an award based "upon a matter not submitted" to the arbitrator); cf. Carpenter Local 1027 v. Lee Lumber & Bldg. Material, 2 F.3d 796, 798-99 (7th Cir. 1993) (discussing limits of arbitrator's authority). Further, without evidence of lost wages and interim earnings, the arbitrator could not specify precisely what his make-whole ruling required--whether, for instance, it included or excluded interim sources of income and benefits. As a consequence, Murphy had a plausible argument that the arbitrator's ruling was inappropriate and thus subject to modification, correction, or remand. See Local 100A v. John Hofmeister and Son, Inc., 950 F.2d 1340, 1345 (7th Cir. 1991) (district court should remand ambiguous awards to arbitrator for clarification); Aluminum Brick & Glass Workers v. AAA Plumbing, 991 F.2d 1545, 1549 (11th Cir. 1993) (where parties cannot agree on the amount of an arbitrator's award of back pay, "the normal course of action is to treat the award as ambiguous or incomplete and remand the dispute to the original arbitrator to clarify the award").
However, the fact remains that the arbitrator ruled on the remedy issue--including the issue of damages--and not solely on the matter of entitlement: "They shall be reinstated to the employment and made whole." (Emphasis added.) Once this award was made, Murphy had three months to give notice that it intended to challenge the ruling in federal court. 9 U.S.C. sec. 12; Chauffeurs, Teamsters, Warehousemen & Helpers, Local Union No.135 v. Jefferson Trucking Co., 628 F.2d 1023, 1027 (7th Cir. 1980), cert. denied, 449 U.S. 1125 (1981). Its failure to do so has unavoidable consequences. The Union has sought confirmation and enforcement of the arbitration award in the district court pursuant to sec. 301 of the Labor-Management Relations Act (LMRA), 29 U.S.C. sec. 185, which grants federal district courts jurisdiction over such matters. The FAA, which in the Seventh Circuit also creates jurisdiction in the district courts for confirming arbitration awards, see Miller Brewing Co., 739 F.2d at 1162, dictates that the district court "must grant" a timely order confirming an arbitration award ...