NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 15-3697

_____________

D.A. NOLT, INC.,

 Appellant

v.

LOCAL UNION NO. 30 UNITED UNION OF ROOFERS, 

WATERPROOFERS AND ALLIED WORKERS; 

ROOFERS LOCAL NO. 30 COMBINED HEALTH AND WELFARE FUND; 

ROOFERS LOCAL NO. 30 COMBINED PENSION FUND;

ROOFERS LOCAL NO. 30 COMBINED VACATION FUND; 

ROOFERS LOCAL NO. 30 COMBINED ANNUITY FUND; 

ROOFERS LOCAL NO. 30 POLITICAL ACTION AND EDUCATION FUND;

ROOFING CONTRACTORS ASSOCIATION INDUSTRY FUND; 

ROOFERS LOCAL NO. 30 APPRENTICESHIP FUND; 

ROOFERS LOCAL NO. 30 HOME ASSOCIATION FUND

_____________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 2-12-cv-05810)

District Judge: Honorable Anita B. Brody

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Submitted Under Third Circuit LAR 34.1(a)

July 15, 2016

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Before: FUENTES, SHWARTZ and BARRY, Circuit Judges

(Opinion Filed: September 23, 2016)
2

____________

OPINION*

____________

BARRY, Circuit Judge

D.A. Nolt, Inc. (hereinafter, “Nolt”), a roofing contractor, appeals the District 

Court’s order granting summary judgment in favor of Local Union No. 30 and related 

entities (hereinafter, “the Union”), on its challenge to an arbitration award in favor of the 

Union. Nolt argues that the Court should have vacated the arbitration award and granted 

judgment in its favor because the arbitrator lacked jurisdiction over the parties’ dispute, 

or, in the alternative, because the award was in manifest disregard of the law and 

violative of public policy. Because the Court correctly determined that the arbitrator 

acted within the scope of his authority in construing the parties’ agreement and that Nolt 

failed to show that the arbitrator’s award disregarded the law or violated public policy, 

we will affirm. 

I.

Nolt was the general contractor for two construction projects in Egg Harbor 

Township, New Jersey. The projects were governed by a Project Labor Agreement 

(“PLA”) executed by the South Jersey Building and Construction Trades Council and the 

 

*

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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Greater Egg Harbor Regional High School District; Nolt became a signatory to the PLA 

in connection with its work on these projects. The Union, as a member of the Council, 

was also a signatory to the PLA.

The PLA required contractors to hire union employees, but it permitted the hiring 

of non-union employees under certain circumstances. Nolt used both union and nonunion employees for work on the projects, and the parties agree that Nolt’s use of nonunion employees did not violate the PLA. With respect to benefit contributions, the PLA 

provided that:

The Contractors agree to pay contributions on behalf of all employees 

covered by this Agreement to the established employee benefit funds in the 

amounts designated in the appropriate collective bargaining agreement . . . .

(App. 195.) It also provided, in Article 11, that “[i]n the event of any delinquency a 

meeting will be held immediately . . . [a] satisfactory fringe benefit payment arrangement 

shall be facilitated at this meeting.” (Id.)

Article 9 of the PLA set forth a “Grievance & Arbitration Procedure,” which 

outlined an “exclusive procedure” for the resolution of “[a]ny question, dispute or claim 

arising out of, or involving the interpretation or any application of this Agreement.” 

(App. 182.) The procedure required, for example, that the parties meet and confer with 

respect to any dispute, and, if the grievance could not be resolved, the grieving party was 

required to serve written copies of the grievance within a specified period of time. 

Article 9 further stated that “[f]ailure of the grieving party to adhere to the time limits set 
4

forth in this Article shall render the grievance null and void.” (App. 184.)

The Union interpreted the employee benefits contribution provision of the PLA to 

require Nolt to contribute to the Union employee benefit funds for all employees working 

on the project, including non-union employees. It also contended that the PLA required 

Nolt to pay working assessments to the Union on behalf of non-union employees. Nolt 

disputed this, arguing that it did not owe such contributions on behalf of non-union 

employees and that it was not required to pay the working assessments. The parties being 

unable to resolve their disagreement, the Union submitted a demand for arbitration, and 

Nolt filed the present action, seeking a declaratory judgment and an injunction preventing 

the dispute from proceeding to arbitration.

In February 2013, the District Court denied Nolt’s motion to enjoin arbitration and 

stayed the case pending its completion. In September 2014, following two days of 

hearings, the arbitrator issued an award in favor of the Union. While Nolt had argued 

that the Union’s arbitration demand was “null and void” because the Union had failed to 

comply with the procedural requirements of Article 9, the arbitrator determined that the 

dispute was arbitrable because the PLA provided a different process for the resolution of 

a delinquency for contributions to an employee benefit fund, in Article 11. The arbitrator 

went on to hold that the plain language requiring contributions on behalf of “all 

employees covered” by the PLA required Nolt to make contributions on behalf of nonunion employees. He stated: “This Arbitrator must hold that where clear and 
5

unambiguous contract language requires an employer to make contributions to an 

established employee benefit fund on behalf of all employees covered by the collective 

bargaining agreement, the contractual obligation controls.” (App. 331.) The arbitrator 

ordered Nolt to pay $492,000 to the Union benefit funds. He also ordered Nolt to pay 

working assessment fees for the non-union employees. 

The District Court lifted the stay, and the parties filed cross-motions for summary 

judgment. The Union sought to uphold the arbitrator’s award, and Nolt sought to vacate 

the award on grounds that the arbitrator lacked jurisdiction and that the award resulted in 

manifest disregard for the law and violation of New Jersey wage laws and public policy. 

Nolt argued that the Prevailing Wage Act, N.J. Stat. Ann. 34:11-56.25, et seq., required 

Nolt to pay its employees a “prevailing wage” that included both a base wage and a 

benefits component, and that requiring Nolt to pay the benefits component of the wage to 

the Union benefit funds would force Nolt to withhold benefits from its non-unionemployees in violation of the statute. 

The District Court granted the Union’s motion, and denied Nolt’s motion in 

relevant part.1 The Court concluded that the arbitrator’s determination that the grievance 

was not “null and void” was within his “arbitral jurisdiction,” and entitled to deference, 

as it was based on the arbitrator’s interpretation of the agreement. (App. 14.) The Court 

 

1 The Court granted Nolt’s motion requesting a modification of the arbitration award, 

based on the parties’ stipulation agreeing that the arbitrator had calculated the relevant 

hours incorrectly. This resulted in a judgment in the amount of $374,626.12.
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also rejected Nolt’s arguments that the arbitration award was illegal or violative of public 

policy. It accepted the Union’s argument that Nolt could comply with state wage laws by 

“paying twice,” that is, paying “both the benefits contributions it owes to the union 

benefit funds and the statutorily set benefits it owes to its non-union employees.” (App. 

16.) Finally, the Court determined that Nolt had waived its claim with respect to the 

working assessments because it failed to present any argument to support that claim. 

On appeal, Nolt renews the arguments it made before the arbitrator and the District 

Court. For essentially the same reasons cited by the District Court, we will affirm.

II.

The District Court had jurisdiction pursuant to 28 U.S.C. § 1332, and we have 

jurisdiction pursuant to 28 U.S.C. § 1291. “We exercise plenary review of the district 

court’s confirmation of a labor arbitration award and apply the same standard the district 

court should have applied.” Citgo Asphalt Refining Co. v. Paper, Allied-Indus., 

Chemical & Energy Workers Int’l Union Loc. No. 2-991, 385 F.3d 809, 815 (3d Cir. 

2004). Summary judgment is appropriate when “the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a matter 

of law.” Fed. R. Civ. P. 56(a). 

We have held that courts “play a very limited role” in reviewing arbitration 

awards. Citgo Asphalt, 385 F.3d at 815; see United Transp. Union Loc. 1589 v. 

Suburban Transit Corp., 51 F.3d 376, 379 (3d Cir. 1995) (“District Courts have very little 
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authority to upset arbitrators’ awards.”). “[C]ourts are not authorized to reconsider the 

merits of an award even though the parties may allege that the award rests on errors of 

fact or on misinterpretation of the contract.” United Paperworkers Int’l Union, AFL-CIO 

v. Misco, Inc., 484 U.S. 29, 36 (1987). We will uphold an award “[a]s long as the 

arbitrator’s award ‘draws its essence from the collective bargaining agreement,’ and is 

not merely ‘his own brand of industrial justice.’” Id. (quoting United Steelworkers of 

Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960)).

Although our ability to review arbitration awards is limited, we may overturn an 

award under certain circumstances, including when an arbitrator “acted in manifest 

disregard of the law,” see United Transp., 51 F.3d at 380, or where an award “violates a 

‘well-defined and dominant’ public policy, which we must ‘ascertain[] by reference to 

the laws and legal precedents and not from general considerations of supposed public 

interests . . . .’” Exxon Shipping Co. v. Exxon Seamen’s Union, 993 F.2d 357, 360 (3d 

Cir. 1993) (quoting W.R. Grace & Co. v. Loc. Union 759, Int’l Union of Rubber, Cork, 

Linoleum & Plastic Workers of Am., 461 U.S. 757, 766 (1983)). Such situations, 

however, are rare. See Eastern Associated Coal Corp. v. United Mine Workers of Am., 

Dist. 17, 531 U.S. 57, 62 (2000).

III.

Nolt argues that the arbitrator lacked jurisdiction over the parties’ dispute because 

the Union’s failure to comply with the procedural requirements of Article 9 rendered the 
8

grievance “null and void.” We have held, however, that while questions of “substantive” 

arbitrability—e.g., the question of whether a particular dispute is covered by the parties’ 

agreement to arbitrate—may be resolved by courts, questions of “procedural 

arbitrability”—e.g., whether the appropriate grievance procedures were followed—are 

left to the arbitrator. Bell Atlantic- Pa., Inc. v. Commc’ns Workers of Am., AFL-CIO, 

Loc. 13000, 164 F.3d 197, 200-01 (3d Cir. 1999). In other words, “[o]nce it is 

determined . . . that the parties are obligated to submit the subject matter of a dispute to 

arbitration, ‘procedural’ questions which grow out of the dispute and bear on its final 

disposition should be left to the arbitrator.” John Wiley & Sons, Inc. v. Livingston, 376 

U.S. 543, 557 (1964); see Bell Atlantic, 164 F.3d at 201. As the Supreme Court has 

recognized, this is appropriate because “[d]oubt whether grievance procedures or some 

part of them apply to a particular dispute, whether such procedures have been followed or 

excused, or whether the unexcused failure to follow them avoids the duty to arbitrate 

cannot ordinarily be answered without consideration of the merits of the dispute which is 

presented for arbitration.” John Wiley & Sons, Inc., 376 U.S. at 557; see also Whittle v. 

Loc. 641, Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFLCIO, 56 F.3d 487, 490 n.2 (3d Cir. 1995) (“Timeliness is a procedural issue, and in an 

arbitration proceeding, procedural issues are for the arbitrator to decide.”).

Here, the parties agreed to arbitrate “[a]ny question, dispute or claim arising out 

of, or involving the interpretation or any application of [the PLA].” (App. 182.) The 
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District Court correctly determined that Nolt’s procedural claim that the Union’s 

grievance was “null and void” due to its failure to comply with the formal procedural 

requirements of Article 9, was within the scope of the parties’ agreement to arbitrate, and 

that the arbitrator had jurisdiction, in the first instance, to resolve this question of 

procedural arbitrability. Even if we or the District Court might have interpreted the PLA 

differently, “[i]t is the arbitrator’s construction which was bargained for; and so far as the 

arbitrator’s decision concerns construction of the contract, the courts have no business 

overruling him because their interpretation is different from his.” Akers Nat’l Roll Co. v. 

United Steel, Paper & Forestry, Rubber, Mf’g, Energy, Allied Indus. & Serv. Workers

Int’l Union, 712 F.3d 155, 161 (3d Cir. 2013) (quoting United Steelworkers, 363 U.S. at

599). Because the arbitrator acted within the scope of his authority in construing the 

contract, the Court correctly deferred to the arbitrator’s determination with respect to this 

claim. 

IV.

Nolt also contends that the District Court erred in refusing to vacate the arbitration 

award as in manifest disregard of New Jersey law and violation of public policy. Nolt 

fails to identify with specificity how the arbitrator’s interpretation of the PLA disregarded 

the law, however, and it fails to identify a “well-defined and dominant” public policy that 

was contravened by the arbitrator’s award. At bottom, Nolt argues that the arbitrator’s 

interpretation of the PLA and resulting award was unfair, penalizing employers for using 
10

non-union employees even in the absence of a breach of the PLA, and granting the Union 

an undeserved windfall.2 Nolt contends that such unfairness is contrary to the spirit of 

the Prevailing Wage Act and the Project Labor Agreement Act, N.J. Stat. Ann. 52:38-1, 

et seq., which sought to promote fairness and create a level playing field for both union 

and non-union-affiliated contractors and workers. 

The Supreme Court has observed that in determining whether an award violates 

public policy, the analysis turns on whether the arbitrator’s award “created any explicit 

conflict with other ‘laws and legal precedents’ rather than an assessment of ‘general 

considerations of supposed public interests.’” Misco, Inc., 484 U.S. at 43 (quoting W.R. 

Grace, 461 U.S. at 766). Thus, as we have held, “a formulation of public policy based 

only on ‘general considerations of supposed public interests’ is not the sort that permits a 

court to set aside an arbitration award that was entered in accordance with a valid 

collective bargaining agreement.” United Transp., 51 F.3d at 381-82 (quoting Misco, 

Inc., 484 U.S. at 44). Nolt has failed to demonstrate that requiring an employer to make 

benefit contributions on behalf of all employees, even employees that may not become 

eligible to collect benefits, is in conflict with a “well-defined and dominant” public 

 

2 Nolt argues that the arbitrator’s interpretation resulted in a “windfall” to the Union 

because the majority of its non-union employees will be ineligible to collect benefits 

under the relevant plans. Acknowledging this argument, the District Court held that 

“[e]ven if Local 30 will receive contributions for employees that it will never cover, Nolt 

has failed to demonstrate how this violates the law.” (App. 17.) The arbitrator also 

acknowledged this argument, noting that there were threshold qualifications for all 

employees, including Union employees, under the Union benefit plans, such that even 

Union members would not necessarily receive benefits under the plans. 
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policy, rather than merely contrary to a general interest in fairness and equal treatment for 

union and non-union employers.

While Nolt persuasively argues that it paid an unfair price for hiring non-union 

workers in ways explicitly contemplated by the PLA, it acknowledges that the arbitrator’s 

interpretation was based on the agreement’s plain language, which required contributions 

on behalf of “all employees covered by this Agreement.” Because the arbitrator was 

“construing a contract and acting within the scope of his authority,” we may not overturn 

his decision, even were we to agree with Nolt that the arbitrator committed “serious 

error” in considering non-union employees to be “covered by this Agreement.” See

Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 510 (2001). 

V.

We will affirm the order of the District Court.3

 

3 Because the District Court correctly concluded that Nolt waived its claim with respect 

to the working assessments, we need not address it. See DIRECTV Inc. v. Seijas, 508 

F.3d 123, 125 n.1 (3d Cir. 2007) (“It is well established that arguments not raised before 

the District Court are waived on appeal.”). We note, however, that, on appeal, Nolt does 

not dispute that the plain language of the PLA required the payment of working 

assessments; it argues only that the arbitrator failed to find a basis for arbitral jurisdiction

over this aspect of the parties’ dispute. Just as with the benefit fund contributions, this is 

an issue of procedural arbitrability on which we would defer to the arbitrator, if the claim 

were properly before us.