Date: 12-26-2015

Case Style: United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union AFL-CIO-CLC, et al. v. Wise Alloys, LLC

Case Number: 14-15744

Judge: Robin S. Rosenbaum

Court: IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Plaintiff's Attorney: Matthew S Swerdlin

Defendant's Attorney: Matthew W Lewis, William G Miossi

Description: This appeal and cross-appeal represent the latest chapter3 in the contentious
aftermath of a November 2007 collective-bargaining agreement between the Union
and the Company. The Company operates an aluminum rolling mill in Muscle
Shoals, Alabama, and the Union represents many of the Company’s production
workers. In 2007, the Company and the Union entered into a collective-bargaining
agreement (“CBA”) for the period of November 1, 2007, to November 1, 2012.
The CBA sets forth a schedule of increasing health-care premiums over the five
year duration of the agreement but also contains a cost-of-living-adjustment
provision that is designed to offset the amount workers pay in health-care
premiums. More specifically, the weekly health-care premium rates that the
adjustment sought to mitigate were set at $20 for the first year, $25 for the second,
$30 for the third, $35 for the fourth, and $45 for the fifth.
As relevant, the CBA provides, Cost of Living Adjustment: Effective on each adjustment date, a cost-of-living adjustment will be made to the current cost of living allowance. The cost of living allowance will be equal to 1¢ per hour for each full 0.3 of
We previously considered this same collective-bargaining agreement and cost-of-living provision in USW v. Wise Alloys, LLC, 642
a point change in the Consumer Price Index calculation. . . .
Section 3. Effective on each adjustment date, the cost-ofliving allowance as determined above shall be applied exclusively to help offset health insurance costs for hourly-rated employees. The cost-of-living adjustments under the paragraph shall not be applied to employees’ hourly wage rates.
See USW v. Wise Alloys, LLC, No. CV–10–S–2830–NW, 2012 WL 2357738, at
*2-3 (N.D. Ala. June 15, 2012). The cost-of-living adjustment is calculated
quarterly, and the employee’s weekly health-care premium is reduced by the
appropriate cost-of-living allowance figure.
The CBA also includes a comprehensive, four-step grievance procedure for
resolving “[a]ll grievances concerning the interpretation or application of this
Agreement.” Under the grievance procedure, all grievances must be “presented
within ten (10) working days of the occurrence out of which the grievance arose.”
The CBA further requires that “[g]rievances which are not presented within the
specified time limit cannot be presented or considered at a later date.”
Step one of the process involves presenting the grievance orally to the
employee’s immediate supervisor and receiving an answer within two days. Step
two requires the Union to put the grievance in writing and present it to the shop
superintendent for discussion. Under step three, the Union may elect to elevate the
grievance to the Company’s Labor Relations Department if it remains unresolved.
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If the grievance is not resolved at step three, the Union may refer it to the
Company’s Vice President of Human Resources and involve a USW International
Staff Representative at step four. Step four requires that the parties meet to discuss
the grievance and that the Vice President issue a written response within thirty
days of the meeting. The CBA provides that the time limits of the grievance
process may be extended by mutual agreement and that, by mutual agreement,
“specific grievances may be initially presented at Step 3 or Step 4.”
If the dispute is not resolved through this four-step process, the grievance
procedure gives the Union forty-five days from the receipt of the Vice President’s
answer to move the grievance to binding arbitration by notifying the Company in
writing of its wish to do so. Although the arbitration clause declares that “[t]he
arbitrator shall have no authority to change, amend, add to, or delete from the
provisions of this Agreement,” it provides no other constraint on the arbitrator’s
authority.
The “General Purposes of this Agreement” section of the CBA also contains
the following “zipper clause”:
It is the intent of the parties that this Agreement, including the side letter agreements that are dated as of the date of this Agreement and attached to this Agreement, constitute the entire Collective Bargaining Agreement of the parties. Further, the parties agree that the terms of this Agreement should be enforced as written in all cases, regardless of any conflicting practices.
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B. The Current Grievance
The dispute here centers on conflicting interpretations of the cost-of-living
adjustment provision. The Union maintains that the cost-of-living adjustments
accumulate over the life of the agreement; i.e., that each new adjustment is added
to the current allowance. In contrast, the Company contends that the cost-of-living
allowance resets to zero annually when each new CBA-mandated increase in
health-care premiums takes effect.
This case arrived at our doorstep through the following course of events: On
December 19, 2008, David Duford, the Company’s Labor Relations Manager, sent
a letter to Ernest Kilpatrick, the Local’s President, notifying him that the Company
mistakenly neglected to raise the health premium from $20 to $25 in November
2008. Although that letter also specified that the Company would “make the
necessary adjustments to recover any retroactive health care premiums,” it made
no reference to cost-of-living adjustments. Paychecks issued the week of January
15, 2009, reflected the $25 deduction and the retroactive deduction but no
corresponding cost-of-living premium reduction.
On February 23, 2009, Duford again wrote Kilpatrick, advising him that,
based on the relevant Consumer Price Index information, no quarterly cost-of
living adjustment was warranted and that “the weekly health care premium will
remain $25.00 for all applicable employees.” In response, Kilpatrick wrote back
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on March 2, 2009, agreeing that no quarterly adjustment was needed, but he
asserted that, based on the $0.73-per-hour allowance existing at the end of 2008,
the $25 premium should be reduced accordingly. In a March 5, 2009 letter, Duford
disagreed. Duford also recalled that the Union had been informed in his December
19, 2008, letter about the premium increase to $25, but the Union had made “[n]o
timely objections or grievances.”
No further action apparently occurred for the next seven months until the
Union filed a formal grievance on October 5, 2009. On October 20, 2009, Duford
denied the grievance in a letter to now Local President Ken Hunt. In rejecting the
grievance, Duford again pointed to the December 19 letter and the January 15
paychecks and added,
Neither at the time of these events, nor within the time period specified in our Labor Agreement in which a grieving party must bring a claim did the Union nor did any of its members file any timely objections or grievances regarding any of these occurrences, which were widely known and implemented.
Furthermore, there are no provisions in the Labor Agreement whatsoever that provide that COLA be carried over from year to year. COLA offsets, if any, applies [sic] only to the contractually established weekly premium in the year in which the offset occurs. The weekly premium is reset annually as provided by the clear terms of our Labor Agreement.
The grievance is rejected as untimely and therefore all claims and demands are waived in its [sic] entirety by the Union.
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On October 26, 2009, the Union elevated its grievance to step four by
forwarding it to Sandra Scarborough, the Company’s Vice President for Human
Resources. No meeting was scheduled and no Company representative, including
Scarborough, ever responded to the step-four escalation. On February 12, 2010,
the Union notified Scarborough in writing that it desired to submit the grievance to
arbitration.
The Union moved forward unilaterally with the arbitration process, sending
letters to the Company on July 9 and July 26, 2010, concerning the arbitration
panel. On July 28, 2010, Duford responded to these efforts by reiterating the
Company’s position that the grievance was untimely. Duford elaborated, “There is
no ambiguity that untimely grievances are not arbitrable under our Labor
Agreement, and we clearly advised the Union of our position in this regard on
October 20, 2009.” Duford also expressed the position that “issues of arbitrability
like the one presented here” are matters for judicial determination, not resolution
by the arbitrator. Finally, Duford closed his July 28 letter by stating, “[The
Company] will not agree to submit the above-referenced issue to arbitration
because it conflicts with the terms of our Labor Agreement concerning issues that
are subject to grievance and arbitration.”

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C. The Union Goes to Court
On October 19, 2010, the Union filed a complaint in the Northern District of
Alabama pursuant to section 301 of the Labor Management Relations Act
(“LMRA”), 29 U.S.C. § 185. In the sole count of the complaint, the Union alleged
that the Company “violated the collective bargaining agreement by refusing to
arbitrate the COLA reset grievance” and requested “that the Court order the
Company to submit the grievances to arbitration as provided under the collective
bargaining agreement and for any other legal and/or equitable relief the Court
deems appropriate.” The Union made no other requests for relief in its complaint.
In response, the Company answered that the grievance was not arbitrable
because it was untimely under the CBA. It also raised, as a defense, that the
lawsuit to compel arbitration was untimely under the statute of limitations.
Both parties moved for summary judgment. Citing the relevant six-month
statute of limitations on actions to compel arbitration, the Company argued that the
Union’s lawsuit was barred because the Company “unequivocally refused” to
arbitrate the grievance in its October 20, 2009, letter. The Company also
contended that even if not barred by the limitations period, the grievance was not
arbitrable because it was untimely, and timeliness is not a matter for arbitration.
In response, the Union asserted that timeliness of the grievance was, in fact,
a matter for arbitration. Plus, in any event, the Union urged, the grievance was
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timely because the Company’s refusal to apply the cost-of-living adjustments to
each paycheck was a continuing violation. The Union also countered the statute
of-limitations argument by asserting that the Company had not unequivocally
refused arbitration until its July 28, 2010, letter.
The district court agreed with the Union and granted summary judgment
compelling arbitration on June 15, 2012. Wise Alloys, 2012 WL 2357738, at *12.
Ultimately, the court rejected the notion that timeliness was inappropriate for
arbitration. Id. Instead, the court found that the “parties’ dispute is a dispute over
the application of the time limitations in the grievance procedure contained within
the contract, rather than a dispute over the arbitrability of the grievance.” Id.
Turning to the question of whether the Company had made an unequivocal
refusal to arbitrate, the court recognized that the Company need not have expressly
used the language “refuse to arbitrate.” Id. at *8-9. Nevertheless, the district court
concluded that the October 20, 2009, letter “is best construed as a statement
expressing [the Company’s] position in response to [the Union’s] grievance—i.e.,
[the Company’s] reason for denying the grievance. It does not indicate—either
expressly or impliedly—that [the Company] would not agree to arbitration.” Id.
And, because the district court concluded that the timeliness of the grievance
was arbitrable, it reasoned that the Company’s “statement could be reasonably
construed as indicating that [the Company] would assert before the arbitrator that
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[the Union’s] grievance should be denied because it was not timely filed, rather
than asserting that [the Company] refused to engage in arbitration.” Id. at *9.
In concluding its order, though, the district court—apparently sua sponte—
expressed its “opinion that the case should be stayed, rather than dismissed,
pending a final resolution following arbitration.” Id. at *13. Citing section 3 of
the Federal Arbitration Act (“FAA”), 9 U.S.C. § 3, and Circuit case law, the
district court apparently determined that it was required to stay the case when
compelling arbitration. Id. Accordingly, the district court stayed the case but also
administratively closed the case file. Id. In doing so, the court noted that “[t]his
action will have no effect on the court’s retention of jurisdiction, and the file may
be reopened, on either party’s motion, for an appropriate purpose such as dismissal
following settlement, entry of judgment, vacatur, or modification of an arbitrator’s
award.” Id. The court also directed the parties to notify the court of any settlement
or arbitration determination. Id. at *14.
D. The Arbitration and the Return to Court
The case proceeded to arbitration before Mitchell B. Goldberg, who issued
his decision on January 22, 2014. Goldberg determined that the Union should have
known about the facts giving rise to the grievance in December 2008 or January
2009. Nevertheless, Goldberg concluded that the failure to deduct the cost-of
living adjustment from the health-care premiums was in the nature of a continuing
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violation, so the grievance was timely filed with respect to paychecks issued no
more than ten days before the Union’s formal grievance was filed on October 5,
2009.
Regarding the merits of the dispute, Goldberg acknowledged that both sides
believed the CBA’s language was unambiguous. Because no language in the CBA
either expressly carries over or expressly resets the cost-of-living allowance each
year, though, Goldberg found that the CBA possessed a “latent ambiguity.”
In view of the ambiguity, Goldberg looked to extrinsic evidence of the
parties’ negotiations and their prior course of dealing as it related to cost-of-living
provisions applied to employee wages under the previous CBA. After conducting
this analysis, Goldberg determined that, in the absence of any express language
changing the practice in the new CBA, the cost-of-living adjustments “should work
the same way it was done in the preceding CBA” and accumulate over time.
The Union notified the district court of the award on January 31, 2014. On
March 5, 2014, the Company filed a motion to reopen the case and vacate the
award.
The Company argued the award was unenforceable because Goldberg
exceeded his authority under the CBA by ignoring the zipper clause when
consulting extrinsic evidence and by violating the no-modification provision that
prohibits an arbitrator from changing the terms of the CBA. On March 20, 2014,
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the Union “joined with” the Company in seeking to reopen the case, and “to the
extent necessary,” moved to amend their original complaint to state a claim for
enforcing the arbitration award and for attorney’s fees. The Union argued that
Goldberg’s decision fell within his authority as arbitrator and the Company’s
objections were meritless. In addition, the Union sought attorney’s fees under the
court’s equitable powers to punish the Company for filing a meritless challenge to
the arbitration award.
On December 9, 2014, the district court denied the Company’s motion to
vacate and granted the Union’s motion to enforce the award. Noting that a federal
court’s review of an arbitration award is exceedingly narrow and deferential, the
district court upheld the arbitrator’s continuing-violation determination as a
permissible construction of the CBA. The district court also determined that, as an
extension of binding former Fifth Circuit precedent, if a contract contains an
ambiguity, an arbitrator may look to extrinsic evidence to resolve that ambiguity
despite the presence of a zipper clause. Here, again applying the same highly
deferential standard of review applicable to an arbitration award, the district court
agreed that the arbitrator was justified in finding within the cost-of-living provision
a “yawning void” that “cried out” for construction through extrinsic evidence.
Finally, the district court denied attorney’s fees to the Union because it concluded
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that the Company’s motion “was not baseless, frivolous, or filed for an improper
purpose.”
Both parties now appeal. The Company filed a notice of appeal on
December 23, 2014, challenging the district court’s June 2012 order compelling
arbitration and the district court’s December 2014 order confirming the arbitration
award. The Union cross-appeals the denial of attorney’s fees.
II. STANDARDS OF REVIEW
We review de novo a district court’s order to compel arbitration. Bautista v.
Star Cruises, 396 F.3d 1289, 1294 (11th Cir. 2005). Similarly, we review a district
court’s application of the statute of limitations de novo. United States v. Gilbert,
136 F.3d 1451, 1453 (11th Cir. 1998).
We must sua sponte examine the existence of appellate jurisdiction and
review jurisdictional issues de novo. United States v. Lopez, 562 F.3d 1309, 1311
(11th Cir. 2009). As for a district court’s confirmation of an arbitration award and
its denial of a motion to vacate an award, we review findings of fact for clear error
and legal conclusions de novo. Frazier v. CitiFinancial Corp., LLC, 604 F.3d
1313, 1321 (11th Cir. 2010). We review a district court’s denial of attorney’s fees
for an abuse of discretion. Byars v. Coca-Cola Co., 517 F.3d 1256, 1263 (11th
Cir. 2008).

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III. DISCUSSION
A. We Lack Jurisdiction over the Company’s Appeal of the Order Compelling Arbitration
In civil actions, a notice of appeal must be filed “within 30 days after entry
of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A); 28 U.S.C. §
2107(a). Satisfying this requirement is a prerequisite to our exercise of appellate
jurisdiction in civil cases. Ray Haluch Gravel Co. v. Cent. Pension Fund of Int’l
Union of Operating Eng’rs & Participating Emp’rs, __ U.S. __, 134 S. Ct. 773,
779 (2014). In this case, a single notice of appeal was filed. Although that notice
of appeal was filed within thirty days of the district court’s order confirming the
arbitration award, it was not filed until two-and-a-half years after the district
court’s order compelling arbitration.
We have held that an order compelling arbitration triggered by a complaint
seeking solely such an order is generally considered final and appealable because it
“resolves the only issue before the district court.” Thomson McKinnon Sec., Inc. v.
Salter, 873 F.2d 1397, 1399 (11th Cir. 1989) (per curiam); see also 9 U.S.C. § 16(a)(3);4 Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 84-89, 121 S. Ct.
513, 519-21 (2000) (holding that a “final decision with respect to an arbitration” is
4 Although the parties do not agree on whether the provisions of the FAA, 9 U.S.C. §§ 116, directly apply to collective-bargaining arbitration disputes brought under section 301 of the LMRA, the law construing the FAA nevertheless provides instructive guidance on these matters. See, e.g., Wise Alloys, 642 F.3d at 1352-54, 1353 n.4; Am. Postal Workers Union v. U.S. Postal Serv., 823 F.2d 466, 470-73 (11th Cir. 1987).
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one that “ends litigation on the merits and leaves nothing more for the court to do
but execute the judgment”); Miller v. Drexel Burnham Lambert, Inc., 791 F.2d
850, 852 (11th Cir. 1986) (per curiam) (“The classic example [of an order
compelling arbitration being final] is that of an action brought solely to obtain an
arbitration order pursuant to § 4 of the Federal Arbitration Act, 9 U.S.C. § 4.”),
abrogated on other grounds by Gulfstream Aerospace Corp. v. Mayacamas Corp.,
485 U.S. 271, 108 S. Ct. 1133 (1988).
And the Supreme Court has expressly and long held that orders compelling
arbitration on a complaint seeking specific performance of an arbitration provision
under the LMRA are final and appealable. See Goodall-Sanford, Inc. v. United
Textile Workers of Am., A.F.L. Local 1802, 353 U.S. 550, 550-52, 77 S. Ct. 920,
920-21 (1957) (“The right enforced here is one arising under [section 301(a) of the
LMRA]. Arbitration is not merely a step in judicial enforcement of a claim nor
auxiliary to a main proceeding, but the full relief sought. A decree under [section
301(a) of the LMRA] ordering enforcement of an arbitration provision in a
collective bargaining agreement is, therefore, a ‘final decision’ within the meaning
of [28 U.S.C. § 1291].”).
In Green Tree, the plaintiff sued her lender for alleged violations of the
Truth in Lending Act and the Equal Credit Opportunity Act. 531 U.S. at 82-83,
121 S. Ct. at 517-18. In response, the lender filed “a motion to compel arbitration,
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to stay the action, or, in the alternative, to dismiss.” Id. at 83, 121 S. Ct. at 518.
The district court compelled arbitration, denied a stay, and dismissed the plaintiff’s
complaint. Id. This Court concluded that appellate jurisdiction existed over the
plaintiff’s appeal, and a unanimous Supreme Court affirmed that conclusion. Id. at
84, 121 S. Ct. at 518-19.
In doing so, the Supreme Court specifically rejected the idea that whether an
order was favorable or hostile to arbitration had any bearing on finality. Id. at 86,
121 S. Ct. at 519. Instead, the Court confirmed the “well-established” and
“longstanding” definition of finality: a decision that “ends the litigation on the
merits and leaves nothing more for the court to do but execute the judgment.” Id.
at 86, 121 S. Ct. at 519.
Applying the lessons of Green Tree here, we conclude that the order
compelling arbitration was unquestionably a final order under either the LMRA or
the FAA: the Union’s complaint sought only to compel arbitration. Once the court
granted the relief that the Union sought in the single count of its complaint and
compelled arbitration, nothing remained for the court to do but execute that
judgment.
Nor are we convinced by the parties’ contentions that the district court’s stay
of the case effectively made the final order an interlocutory one, obviating the need
to file a notice of appeal until the district court lifted the stay and entered a final
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judgment. See Am. Express Fin. Advisors, Inc. v. Makarewicz, 122 F.3d 936, 939
(11th Cir. 1997); see also 9 U.S.C. § 16(b)(2). We disagree with the parties’ view
for several reasons.
First, the district court’s stay was neither warranted under nor authorized by
statute or precedent. While the district court cited section 3 of the FAA, 9 U.S.C. §
3, as the source of its authority for the stay, Wise Alloys, 2012 WL 2357738, at
*13, the text of the statute provides no basis for applying it in this LMRA case
either directly or by analogy. Section 3 applies to only “any suit or proceeding . . .
brought . . . upon any issue referable to arbitration.” 9 U.S.C § 3 (emphasis
added). Here, the Union did not bring suit upon a substantive issue referable to
arbitration; it brought suit instead solely to compel arbitration.
In addition, section 3 qualifies the mandatory nature of any stay it authorizes
by requiring a party to apply for the stay: “the court . . . shall on application of one
of the parties stay the trial.” Id. (emphasis added); see also Lloyd v. HOVENSA,
LLC, 369 F.3d 263, 269 (3d Cir. 2004) (“Here, the plain language of § 3 affords a
district court no discretion to dismiss a case where one of the parties applies for a
stay pending arbitration.” (emphasis added)). The record here contains no
indication that either party requested a stay of this action.
Beyond these two points, the statute requires staying “the trial of the action.”
9 U.S.C. § 3. In this case, though, once the district court granted summary
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judgment on the sole relief sought—compelled arbitration—no “action” to be tried
existed, so there was nothing to stay. For these reasons, the terms of section 3 of
the FAA simply do not apply to the situation presented in this case, and the statute
cannot justify the stay.
The district court also felt constrained by our prior decision in Bender v.
A.G. Edwards & Sons, Inc., 971 F.2d 698 (11th Cir. 1992), as well as the Third
Circuit’s decision in Lloyd to impose a stay. Wise Alloys, 2012 WL 2357738, at
*13. But those decisions are distinguishable precisely because section 3, by its
terms, did apply in those circumstances. In both cases, the plaintiff brought claims
on issues referable to arbitration, and in response, the defendants sought to compel
arbitration. See Lloyd, 369 F.3d at 269; Bender, 971 F.2d at 699. In those
circumstances, upon a party’s motion, a stay was mandatory under section 3
because the cases were brought on, among other issues, issues themselves arguably
referable to arbitration. See Lloyd, 369 F.3d at 269 (“[Section 3] clearly states,
without exception, that whenever suit is brought on an arbitrable claim, the Court
‘shall’ upon application stay the litigation until arbitration has been concluded.”
(emphasis added)). That is not the case here, where the only cause of action in the
case was for an order compelling arbitration. Unlike in Bender and Lloyd, no party
in this case filed a substantive claim—that is, a claim that was arbitrable. Because
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section 3 by its terms is inapplicable in this case, our precedent affirming section 3
stays is simply not instructive.
Nor is a stay warranted in circumstances such as these. When a court’s grant
of summary judgment compelling arbitration resolves the entirety of the plaintiff’s
complaint, no “burden” of continuing parallel litigation exists to protect against.
Contra Wise Alloys, 2012 WL 2357738, at *13 (quoting Lloyd, 369 F.3d at 270).
Moreover, staying a case has no practical effect without staying the order granting
relief on the only claim in the case. Indeed, staying a case without staying a final
decision on the only claim in the case renders the decision no less final than
staying a thirtieth birthday makes a person perpetually twenty-nine years old.
The stay also cannot be justified on the basis that a party might later seek to
vacate or confirm any arbitration award. Federal law permits a party to bring a
separate proceeding to do just that. See Wise Alloys, 642 F.3d at 1349 (“An
arbitration award pursuant to an arbitration provision in a collective bargaining
agreement is treated as a contractual obligation that can be enforced through a §
301 lawsuit.”). And, as the Supreme Court has explained, “[T]he existence of that
remedy does not vitiate the finality of the District Court’s resolution of the claims”
in what is otherwise a final decision. Green Tree, 531 U.S. at 86, 121 S. Ct. at
520.
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In addition, the need for any post-arbitration proceedings was wholly
speculative at the time the district court entered the stay, and speculative post
arbitration proceedings cannot impact the finality of orders compelling arbitration.
Cf. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199-200, 108 S. Ct. 1717,
1720-21 (1988) (“A question remaining to be decided after an order ending
litigation on the merits does not prevent finality if its resolution will not alter the
order or moot or revise decisions embodied in the order.”).
We are also unconvinced by the Company’s reliance on a footnote in Green
Tree in which the Supreme Court cited section 16(b)(1) of the FAA and observed
that “[h]ad the District Court entered a stay instead of a dismissal in this case, that
order would not be appealable.” See 531 U.S. at 87 n.2, 121 S. Ct. 520 n.2.
Relying on this footnote, the Company asserts that the Supreme Court endorsed the
idea that section 16(b)(1) empowers district courts in all cases to stay cases where
they have entered orders compelling arbitration.
We disagree. To explain why, we first review section 16 of the FAA:
(a) An appeal may be taken from— . . . (3) a final decision with respect to an arbitration that is subject to this title. (b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order— (1) granting a stay of any action under section 3 of this title; . . . .
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9 U.S.C. § 16 (emphases added). Significantly, section 16 distinguishes between
“final decision[s]” and “interlocutory orders” in setting forth permissible ways of
proceeding. The statute expressly specifies that final decisions are appealable
under it. As for actions that may be stayed under section 3, as relevant here, by its
terms, section 16 explicitly limits that option to cases where the court has entered
an interlocutory order.
The Supreme Court’s statement that “[h]ad the District court entered a stay
instead of a dismissal in this case, that order would not be appealable[,]” Green
Tree, 531 U.S. at 87 n.2, 121 S. Ct. at 520 n.2, must necessarily be read against the
background of section 16, which the Court cited. In this light, we understand the
Supreme Court to have been opining on the particular factual circumstances in
Green Tree. Under the particular facts of that case, whether the district court
entered a stay or a dismissal affected whether the district court’s order was
interlocutory or final. As a result, whether the district court entered a stay or
dismissal governed whether section 16(a)(3) or section 16(b)(1) applied, and thus,
whether the order was appealable.
The particular facts in Green Tree that would have allowed the district court to have granted a stay instead of a dismissal5 (thus rendering the order
5 It is not clear that the district court in Green Tree had the authority to enter a dismissal of the plaintiff’s substantive claims. But since it dismissed the claims and no party challenged
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interlocutory instead of final) do not exist in the case before us. In Green Tree, the
plaintiff brought claims under the Equal Opportunity Credit Act and the Truth in
Lending Act. Simply ordering the case to arbitration did not technically dispose of
the substantive claims that the plaintiff had brought, requiring the court to proceed with parallel litigation, stay the claims, or possibly dismiss the case.6 The district
court chose the last course, but it could have entered a stay instead of dismissing
the plaintiff’s claims. Had it done so, the plaintiff’s claims would have remained
pending, rendering the district court’s order compelling arbitration interlocutory
instead of final. But here, because the district court’s order compelling arbitration
resolved the merits of the only claim for relief advanced by any party to the action,
the order was final, so nothing remained for the district court to stay.
Because the stay entered by the district court was neither required nor
authorized, we conclude that it could not have transformed what was, by definition,
a final order into an interlocutory one. As a result, the Company had to appeal the

the dismissal as beyond the district court’s authority, the Supreme Court specifically declined to consider that question, noting that “whether the District Court should have taken that course is not before us, and we do not address it.” Green Tree, 531 U.S. at 87 n.2, 121 S. Ct. at 520 n.2. In other words, the Supreme Court did not evaluate whether the district court could permissibly turn what may have been required to have been issued as an interlocutory order into a final decision. We do not have the luxury of not considering the opposite question—whether the district court could have made what was clearly a final decision into an interlocutory order simply by staying the case—because our jurisdiction depends on the answer to the question. 6 Again, it is not clear that the district court could have permissibly decided to dismiss the case. See supra at n.5.
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order compelling arbitration within thirty days.7 Fed. R. App. P. 4(a)(1)(A); 28
U.S.C. § 2107(a). Because the filing of a timely notice of appeal is both
“mandatory and jurisdictional,” Bowles v. Russell, 551 U.S. 205, 209, 127 S. Ct.
2360, 2363 (2007), the absence of a timely notice here divests us of jurisdiction over that aspect of the Company’s appeal.8
We note briefly, though, that if appellate jurisdiction did exist, we would
have affirmed the district court’s order compelling arbitration, anyway. We have
held that, in Alabama, the six-month period in which to bring an action to compel
arbitration under section 301 of the LMRA “begins to run when one party
unequivocally refuses to arbitrate the dispute.” Aluminum Brick & Glass Workers
Int’l Union v. AAA Plumbing Pottery Corp., 991 F.2d 1545, 1548 (11th Cir. 1993).
We agree with the district court’s conclusion that the Company’s October 20,
2009, letter was not an unequivocal refusal to arbitrate.
7 The Union points out that the district court never entered a separate judgment in accordance with Federal Rule of Civil Procedure 58(a). This does not affect the timeliness issue here because, under Rule 58(c)(2)(B), judgment was entered at the latest 150 days after the district court’s June 15, 2012, summary-judgment order—a period that lapsed well before the Company’s December 23, 2014, Notice of Appeal was filed. 8 We acknowledge that the Company relied in part on the district court’s entry of a stay in deciding not to appeal the June 2012 order within thirty days of its entry. We note, however, that, at oral argument, counsel conceded that other considerations also entered into the Company’s decision not to appeal immediately. Regardless of the reason for the Company’s failure to timely appeal the June 2012 order, though, the timeliness requirement is jurisdictional, so we have no power to ignore, excuse, or waive the failure to file a timely notice of appeal. See Bowles, 551 U.S. at 213-14, 127 S. Ct. at 2366 (holding that failure to file a timely notice of appeal in a civil case is a mistake “of jurisdictional magnitude” that cannot be overcome by “forfeiture or waiver” or “unique circumstances” or any other “equitable exceptions”). To once again borrow a phrase from Carole King, we “just can’t fake it, oh, no, no.”
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First, the district court reasoned that the timeliness of the Union’s cost-of
living-provision grievance was itself arbitrable. In contrast with its position in the
district court, see Wise Alloys, 2012 WL 2357738, at *10-12, the Company does
not contest this conclusion in its appeal.
Against the background that the timeliness of the Union’s grievance itself
raised an arbitrable issue, the district court considered the Company’s position in
the October 20, 2009, letter, stating that “[t]he grievance is rejected as untimely
and therefore all claims and demands are waived in its [sic] entirety by the Union.”
The court concluded that the statement could fairly be read as the position that the
Company was taking in arbitration rather than its position on arbitration. See id. at
*9. Because the court’s determination that timeliness is arbitrable stands
unchallenged, nothing in the Company’s October 20 letter precludes an
interpretation that the letter was staking out the Company’s position for future
arbitration. As a result, the district court properly determined that the Company’s
letter was not an unequivocal refusal to arbitrate.
B. The District Court Correctly Enforced the Arbitration Award
The Company also challenges the district court’s refusal to vacate the
arbitration award. It premises its argument on two provisions of the CBA: the
general-purpose zipper clause, requiring the CBA to be enforced as written and
without resort to conflicting practices, and the no-modification provision of the
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arbitration clause, prohibiting an arbitrator from amending or rewriting the CBA.
First, the Company contends that the arbitrator exceeded his authority under the
CBA by effectively “amending” the CBA to create a “continuing-violation
exception” to the ten-day grievance-filing time limit. Second, the Company
maintains that the arbitrator overreached his authority by going beyond the written
language of the cost-of-living provision and looking to extrinsic evidence of the
parties’ prior CBA practices to resolve the dispute. We find no error in the district
court’s resolution of the Company’s challenge to the arbitration award.
1. Judicial Review of Arbitration Awards Is Highly Circumscribed
A federal court’s review of an arbitration award is highly deferential and
extremely limited. See, e.g., Cat Charter, LLC v. Schurtenberger, 646 F.3d 836,
843 (11th Cir. 2011); Osram Sylvania, Inc. v. Teamsters Local Union 528, 87 F.3d
1261, 1263 (11th Cir. 1996). We do not review claims of factual or legal error by
an arbitrator in the same manner as we review the decisions of district courts.
United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S. Ct. 364,
370 (1987). Instead, we review a labor arbitration award for “whether [it] is
irrational, whether it fails to draw its essence from the collective bargaining
agreement or whether it exceeds the scope of the arbitrator’s authority.” Osram
Sylvania, 87 F.3d at 1263 (quoting Butterkrust Bakeries v. Bakery, Confectionery
& Tobacco Workers Int’l Union, AFL-CIO, Local No. 361, 726 F.2d 698, 699
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(11th Cir. 1984)). That is not to say that an arbitrator may “dispense his own brand
of industrial justice. He may of course look for guidance from many sources, yet
his award is legitimate only so long as it draws its essence from the collective
bargaining agreement.” USW v. Enter. Wheel & Car Corp., 363 U.S. 593, 597, 80
S. Ct. 1358, 1361 (1960). An award draws “its essence from the collective
bargaining agreement if the interpretation can in any rational way be derived from
the agreement, viewed in the light of its language, its context, and any other indicia
of the parties’ intention.” Wise Alloys, 642 F.3d at 1531 (quoting Int’l Union of
Dist. 50, Mine Workers of Am. v. Bowman Transp., Inc., 421 F.2d 934, 936 (5th
Cir. 1970)).
Under this standard, “as long as the arbitrator is even arguably construing or
applying the contract and acting within the scope of his authority, that a court is
convinced he committed serious error does not suffice to overturn his decision.”
Misco, 484 U.S. at 38, 108 S. Ct. at 371; Delta Air Lines, Inc. v. Air Line Pilots
Ass’n, Int’l, 861 F.2d 665, 670 (11th Cir. 1988) (“An arbitrator’s result may be
wrong; it may appear unsupported; it may appear poorly reasoned; it may appear
foolish. Yet, it may not be subject to court interference.”). To prevail in vacating
an arbitration award, the challenger “must refute every reasonable basis upon
which the arbitrator may have acted.” Osram Sylvania, 87 F.3d at 1264.

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2. The “Continuing Violation” Theory Was a Permissible Construction of the CBA
The Company’s entire argument against the arbitrator’s award depends on
its characterization of the arbitrator’s “continuing violation” determination as an
amendment or change to the CBA rather than an interpretation of it. This is
necessarily so because if Goldberg’s decision were just an interpretation—even an
incorrect interpretation—of the CBA, we would be powerless to vacate the award.
See Misco, 484 U.S. at 38, 108 S. Ct. at 371 (“The arbitrator may not ignore the
plain language of the contract; but the parties having authorized the arbitrator to
give meaning to the language of the agreement, a court should not reject an award
on the ground that the arbitrator misread the contract.”). After careful
consideration, we agree with the district court that the Goldberg’s decision was
merely a matter of contract interpretation, not an impermissible amendment of the
CBA.
The CBA’s grievance procedure sets a ten-day clock for filing grievances
that begins ticking after the event giving rise to the grievance occurs. That’s all it
does. The CBA contains no discussion of how to handle violations that continue
occurring after the relevant grievance is filed. Nor does the CBA contain any
language construing whether violations of this type occur once—the initial failure
to carry over the cost-of-living allowance—or recur each time the Company fails
to deduct the cost-of-living allowance from the weekly health-care premium. In
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the absence of plainly dispositive language in the CBA, Goldberg plausibly
determined that the Union’s grievance about the Company’s failure to deduct the
cost-of-living allowance was best characterized as a continuing violation recurring
on each weekly paycheck.
Significantly, Goldberg limited the Union’s grievance to those paychecks
issued from ten days before the grievance was filed and forward. By limiting the
recovery in this fashion, Goldberg gave effect to the party’s written ten-day
deadline; he did not rewrite it. Indeed, this might be a completely different case if
Goldberg had used a continuing-violation theory to toll the ten-day period all the
way back to November 2008. But he did not do so. Instead, he appropriately
constrained his award.
Whether we would agree that Goldberg’s interpretation was correct, or that a
better interpretation would require new grievances filed after each paycheck, or
that a grievance such as this “occurs” only initially, is immaterial. Goldberg did
not, as the Company argues, create “a way around the strict grievance time limits
in the CBA”; he interpreted and applied those limits. Because no plain language in
the CBA addressed the issue, Goldberg acted within the scope of his authority and
his decision permissibly “g[ave] meaning to the language of the agreement.”
Misco, 484 U.S. at 38, 108 S. Ct. at 371; see also UMass Mem’l Med. Ctr., Inc. v.
United Food & Commercial Workers Union, Local 1445, 527 F.3d 1, 3, 6-7 (1st
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Cir. 2008) (affirming arbitral award under a collective-bargaining agreement with a
similar grievance time limit based on determination that a pay violation recurred with each new check).9
3. The Arbitrator Permissibly Considered Extrinsic Evidence to Resolve an Ambiguity
The Company also argues that Goldberg’s decision on the underlying
dispute ran afoul of the zipper clause—by considering extrinsic evidence of the
parties’ past collective-bargaining agreements—and the arbitration clause—by
amending the “unambiguous” CBA to make the cost-of-living adjustments
accumulate. As with the timeliness issue, the Company’s arguments lack merit
because Goldberg was within his authority to conclude that an ambiguity existed
within the CBA, and he permissibly resorted to extrinsic evidence to interpret the
parties’ contract.
First, we agree that Goldberg permissibly concluded that an ambiguity
existed. The text of the CBA does not explain whether the cost-of-living
adjustments accumulate each year or the allowance is reset each year. Contrary to 9 The Company attempts to distinguish UMass by asserting that the First Circuit considered only whether the violation at issue could be viewed as continuing but did not evaluate whether a continuing-violation theory was permitted under the language of the agreement involved. But the hospital in UMass made the nearly identical argument the Company makes here—that an arbitrator’s continuing-violation theory essentially nullified the strict timeliness provisions of that agreement, in violation of a similar no-modification clause. UMass, 527 F.3d at 3-4. Accordingly, the Company’s argument falls flat. In holding that the violation could be continuous and affirming the arbitral award, the First Circuit implicitly affirmed the authority of the arbitrator under the agreement to characterize the violation as continuous in making the award.
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the Company’s assertion, the setting of new health-care premiums each year
simply does not address how the cost-of-living adjustment impacts those
premiums.
Had the CBA lacked ambiguity, Goldberg’s reference to past practices
clearly would have run afoul of the zipper clause. But Goldberg acted within his
authority when he interpreted the CBA to find an ambiguity. See Misco, 484 U.S.
at 38, 108 S. Ct. at 371. As a result, Goldberg had to resolve that ambiguity. To
do so, he appropriately looked to evidence of the parties’ past practices.
Binding and persuasive precedent in this Circuit establishes that an arbitrator
may look to extrinsic evidence to resolve an ambiguity in a collective-bargaining
agreement. See IBEW Local Union No. 199 v. United Tel. Co. of Fla., 738 F.2d
1564, 1568-69 (11th Cir. 1984); Boise Cascade Corp. v. United Steelworkers of
Am., AFL-CIO, Local Union No. 7001, 588 F.2d 127, 129-30 (5th Cir. 1979);
Textile Workers Union of Am., AFL-CIO, CLC v. Textile Paper Prods., Inc., 405
F.2d 397, 399 (5th Cir. 1968); see also Loveless v. E. Air Lines, Inc., 681 F.2d
1272, 1278 n.14 (11th Cir. 1982) (“The arbitrator might then be able to resolve the
latent ambiguity by resort to permissible sources of extrinsic evidence.”);
Aeronautical Machinists v. Lockheed, 683 F.2d 419, 1982 WL 172521, at *2, *4
(11th Cir. 1982) (unpublished table opinion); cf. United Steelworkers of Am. v.
Warrior & Gulf Navigation Co., 363 U.S. 574, 581-82, 80 S. Ct. 1347, 1352
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(1960) (“The labor arbitrator’s source of law is not confined to the express
provisions of the contract, as the industrial common law—the practices of the
industry and the shop—is equally a part of the collective bargaining agreement
although not expressed in it.”).
While it is true that none of these cases involve both a no-modification
clause and a zipper clause, the presence of a zipper clause does not defeat the
traditional rule that ambiguities can be resolved by looking to extrinsic evidence.
If it did, zipper clauses would handcuff arbitrators faced with ambiguities,
severely—or even completely—limiting their abilities to construe collective
bargaining agreements and to resolve disputes in a reasoned fashion. Such a result
not only would run counter to the bargained-for arbitration provision—which
clearly envisions empowering an arbitrator to resolve disputes, not running him
into a dead end—but also would conflict with the Supreme Court’s recognition that
an arbitrator must give reasoned meaning to the parties’ agreement. See Misco,
484 U.S. at 38, 108 S. Ct. at 371.
Nor are any of the cases that the Company relies on to support its argument
that the arbitrator could not look to extrinsic evidence because a zipper clause
exists in the CBA instructive. Unlike the case here, none of those cases involve an
ambiguity. In Anheuser-Busch, Inc. v. Local Union No. 744, 280 F.3d 1133 (7th
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Cir. 2002), one judge10 of the Seventh Circuit held that an arbitrator violated zipper
and no-modification clauses by consulting a past employment practice to justify an
award. Id. at 1135-36, 1139 (Coffey, J.). But in that case, the arbitrator modified
the contract to correct a perceived unfairness by overwriting the express contract
with the parties’ past practices. See id. at 1134-36, 1144 (Coffey, J.). No
ambiguity requiring interpretation existed; the parties agreed there was no
ambiguity in the contract language; and the arbitrator did not purport to find an
ambiguity. See id. at 1139-40 (Coffey, J.). And, in fact, Judge Coffey affirmed
that an arbitrator may consult past practices to resolve an ambiguity should one
exist. See id. at 1139.
Both Leed Architectural Products, Inc. v. USW Local 6674, 916 F.2d 63 (2d
Cir. 1990), and Pennsylvania Power Co. v. Local Union No. 272, IBEW, 276 F.3d
174 (3d Cir. 2001), similarly did not address the construction of a contract
ambiguity. Instead, in those cases, the arbitrator impermissibly dispensed
“industrial justice” by modifying an unambiguous contract to correct a perceived
unfairness. See Leed, 916 F.2d at 64-65, 66; Pa. Power Co., 276 F.3d at 179-80.
Finally, the Company suggests that Goldberg’s failure to expressly discuss
the zipper clause when he relied on the past-practice evidence to resolve the
ambiguity somehow made Goldberg’s reliance on the extrinsic evidence improper. 10 The concerns animating the concurring judge’s separate opinion are not relevant to the issue before us. See 230 F.3d at 1145-46 (Rovner, J., concurring in the judgment).
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But that omission has no bearing on the propriety of using extrinsic evidence to
resolve an ambiguity. Unless the parties stipulate otherwise, and they apparently
did not here, an arbitrator is under no obligation to provide explanations with his
award. See Enter. Wheel & Car, 363 U.S. at 598, 80 S. Ct. at 1361; Cat Charter,
646 F.3d at 844.
Ultimately, no basis exists to vacate the arbitration award here. Goldberg
had the authority to construe the CBA’s timeliness provisions, and he did so when
characterizing the Union’s grievance as a continuing violation. Goldberg also had
the authority to uncover an ambiguity in the CBA and resolve it by reference to the
parties’ past practices. For these reasons, the district court did not err in declining
to vacate the arbitration award.
C. The District Court Did Not Abuse Its Discretion in Denying the Union’s Motion for Attorney’s Fees
In its cross-appeal, the Union contends that the district court abused its
discretion in denying the Union’s motion for attorney’s fees for defending against
the Company’s challenge to the arbitration award because the court allegedly
provided no explanation for its decision. The Union also maintains that it is
entitled to attorney’s fees because the Company’s attempt to vacate the award was
baseless. We disagree on both fronts and affirm the district court’s denial of the
fees motion.
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Although section 301 of the LMRA does not expressly authorize attorney’s
fees, we have held that “a court can grant attorney’s fees under its equity power if a
party violates § 301(a) in bad faith, vexatiously, wantonly or for oppressive
reasons.” Varnes v. Local 91, Glass Bottle Blowers Ass’n, 674 F.2d 1365, 1369
(11th Cir. 1982). In the context of challenges to awards under the FAA, we have
provided “notice” that “this Court is exasperated by those who attempt to salvage
arbitration losses through litigation that has no sound basis in the law applicable to
arbitration awards” and has warned litigants that “we are ready, willing, and able to
consider imposing sanctions in appropriate cases.” B.L. Harbert Int’l, LLC v.
Hercules Steel Co., 441 F.3d 905, 913-14 (11th Cir. 2006), abrogated on other
grounds by Frazier, 604 F.3d at 1324. That said, though, we have declined to
order sanctions when at least some plausible argument supported the challenge or
the challenge raised an argument we had not yet addressed. See, e.g., Gonsalvez v.
Celebrity Cruises, Inc., 750 F.3d 1195, 1198 (11th Cir. 2013) (per curiam);
Hercules Steel, 441 F.3d at 914.
A district court must articulate the reasoning behind its award or denial of
attorney’s fees in order to permit meaningful review. Tilton v. Playboy Entm’t
Grp., Inc., 554 F.3d 1371, 1379 (11th Cir. 2009). When it fails to do so, a district
court abuses its discretion. See Norman v. Hous. Auth. of Montgomery, 836 F.2d
1292, 1304 (11th Cir. 1988).
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In the pending case, the district court did articulate its reasons for denying
attorney’s fees. More specifically, after recounting the standards for awarding
attorney’s fees in § 301 cases, the district court stated,
While attorneys’ fees and expenses may be awarded “when a party on the losing end of an arbitration decision seeks to overturn that decision without any real basis for doing so,” West Flagler Associates, Ltd. v. Unite Here Local 355, No. 10–20316–CIV, 2012 WL 92766, *2 (S.D. Fla. Jan. 11, 2012), this is not such a case. Even though the Company will not prevail on its motion, the court concludes the motion was not baseless, frivolous, or filed for an improper purpose.
This discussion identifies the correct standard and explains that the district court
declined to award fees because that standard was not met. The court’s thorough
order analyzing the Company’s challenge to the arbitration award demonstrates
why the district court concluded that the challenge was not baseless. The court
sufficiently explained its reasoning for purposes of review.
Further, while the Company did not prevail on its continuing-violation and
extrinsic-evidence arguments, those arguments were not completely baseless. This
Circuit does not have express, controlling case law definitively foreclosing those
arguments. And prior to today, we had no case law on whether a recurring
paycheck violation like the one at issue here could be considered a “continuing
violation” under a collective-bargaining agreement. Nor did we have any case law
analyzing whether a zipper clause combined with a no-modification clause could
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prohibit an arbitrator from employing extrinsic evidence to resolve an ambiguity.
Given the absence of controlling case law on these issues, sanctions were
unwarranted.

Outcome: We conclude that no jurisdiction exists over the Company’s appeal of the
district court’s order compelling arbitration. In all other respects, the district
court’s orders are affirmed.
DISMISSED IN PART; AFFIRMED IN PART.

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