FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 22, 2012

JOHN LEY

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 11-15081

Non-Argument Calendar

________________________

D.C. Docket No. 1:08-cv-03224-CAP

UNITED STEEL, PAPER AND FORESTRY, RUBBER

MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE

WORKERS INTERNATIONAL UNION AFL-CIO-CLC, et al.,

Plaintiffs-Appellees,

versus

SMURFIT-STONE CONTAINER CORP.,

Defendant-Appellant.

___________________________

Appeal from the United States District Court

for the Northern District of Georgia

____________________________

(June 22, 2012)

Before EDMONDSON, JORDAN, and FAY, Circuit Judges.
PER CURIAM:

Smurfit-Stone Container Corporation appeals from the district court’s

enforcement of an arbitral judgment and award of pre-judgment interest. We affirm,

and address those issues that merit discussion.

I

In early 2005 Clifford Adams – a Smurfit employee and member of both the

United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial, &

Service Workers International Union (USW) and Local 703 of the USW – suffered

a shoulder injury at work. Mr. Adams – who had 19 years of seniority at Smurfit’s

Atlanta East facility– subsequently filed a workers’ compensation claim, and had

surgery on his right shoulder in July of 2005. 

Smurfit fired Mr. Adams in mid-September of 2005 for purportedly violating

the company’s attendance policy. Pursuant to the governing collective bargaining

agreement (CBA), the USW and Local 703 filed a grievance on Mr. Adams’ behalf

challenging the termination.

In October of 2007 the arbitrator sustained the grievance. The arbitrator ruled

that Smurfit’s discharge of Mr. Adams violated the CBA, and ordered that Mr. Adams

be “immediately reinstated with such accommodations as are necessary to employ

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[him] in a comparable position, as nearly as possible, to the one from which he [was]

discharged.” The arbitrator further ordered that Mr. Adams receive “all back pay

which he would have received had he not been terminated together with a restoration

of all lost seniority,” with a deduction from back pay of all workers’ compensation

benefits and/or unemployment payments, as well as any payments received by Mr.

Adams since his termination. The arbitrator did not provide any actual monetary

figure for the back pay award, and did not say anything about pre-judgment interest.

Although Article XX of the CBA provides that arbitration is final and binding

on the union, the company, and the employee, Smurfit did not reinstate Mr. Adams

(though it did put him back on the seniority list), purportedly because it concluded

that it was impossible to do so (i.e., because there was no accommodation which

would allow Mr. Adams to perform any job given his physical limitations). Smurfit

also did not give Mr. Adams any back pay. Notsurprisingly, the USW and Local 703

disagreed with Smurfit’s failure to comply with the arbitration award. 

In late 2007 and early 2008, the parties submitted correspondence to the

arbitrator – who had agreed to retain jurisdiction to assist the partiesin implementing

the award – concerning their ongoing dispute. In February of 2008, the arbitrator

declared that the parties had reached an impasse, stated that his award was “clear and

concise,” and declined to exercise continuing jurisdiction over the matter. In a

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further effort to resolve their dispute, the parties agreed to toll the relevant statutes

of limitation until October 22, 2008, but they were not able to come to an agreement. 

See Complaint at ¶ 15; Answer and Affirmative Defenses at 5 ¶ 15.

The USW and Local 703 filed suit against Smurfit in federal district court on

October 15, 2008, alleging that the company had breached the CBA by not complying

with the arbitration award. They requested that the district court declare the

arbitration award binding, enforce the award, require Smurfit to comply with it, and

order all appropriate equitable and legal relief in light of Smurfit’s breach. The

lawsuit was filed pursuant to § 301 of the Labor Management Relations Act, 29

U.S.C. § 185, which provides district courts with, among other things, subject-matter

jurisdiction to entertain an action by an employee or union against an employer to

enforce an arbitration award which is final and binding pursuant to the terms of the

CBA. See, e.g., Gen. Drivers, Warehousemen &Helpers, Local Union No. 89 v. Riss

& Co., 372 U.S. 517, 519 (1963); Diaz v. Schwerman Trucking Co., 709 F.2d 1371,

1374 (11 Cir. 1983); Truck Drivers & Helpers Local Union No. 728 v. Georgia th

Highway Express, Inc., 328 F.2d 93, 95-96 (5 Cir. 1964). Smurfit did not file an th

independent action or counterclaim to vacate the arbitration award by October 22,

2008, the date tolling ended. Instead, it filed its answer and affirmative defenses on

December 19, 2008. 

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The district court ultimately granted summary judgment in favor of the USW

and Local 703. It held that Smurfit had waived all arguments concerning the validity

of the arbitration award by failing to file a timely action or counterclaim seeking

vacatur of the award. It also concluded, based on the record before it, that Smurfit

had failed to “adopt an accommodation to allow [Mr.] Adams to work within his

physical restrictions and did not find work for him to perform.” It explained that

Smurfit’s impossibility argument was not persuasive “because evidence supporting

an impossibility defense was available to the arbitrator at the time of arbitration.” 

Smurfit requested that the district court remand the matter to the arbitrator for

a calculation of back pay and other benefits, but the district court denied the request.

Instead, after supplemental briefing, the district court awarded Mr. Adams

$214,981.06 in net back pay (including pre-judgment interest as calculated by a rate

set by the National Labor Relations Board) and ordered Smurfit to credit Mr. Adams

with the years of service between the time of his termination and his reinstatement in

January of 2011. This appeal by Smurfit followed.

1

II

“On . . . appeal of a district court’s decision to confirm or vacate an arbitration

1

Smurfit had reinstated Mr. Adams in January of 2011, while the lawsuit was pending

before the district court. 

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award, we review the district court’s resolution of questions of law de novo and its

findings of fact for clear error.” Rintin Corp. S.A. v. Domar Ltd., 476 F.3d 1254,

1258 (11 Cir. 2007). We exercise plenary review with respect to the district court’s th

grant of summary judgment. See, e.g., Gish v. Thomas, 516 F.3d 952, 954 (11 Cir. th

2008). The district court’s award of pre-judgment interest is reviewed for abuse of

discretion. See, e.g., Werner Enterprises, Inc. v. Westwind Maritime Int’l, Inc., 554

F.3d 1319, 1328 (11 Cir. 2009). th

A

Smurfit first argues that the district court erred in granting summary judgment

in favor of the USW and Local 703 because, as a matter of law, it could not reinstate

Mr. Adams to a comparable position. Smurfit contends that, at the time of the

arbitration award, Mr. Adams had been diagnosed as permanently disabled and was

not able to lift more than 10-15 pounds.

We need not address this argument. Under Eleventh Circuit precedent, an

employer seeking to vacate an adverse arbitration award arising out of a CBA under

§ 301 of the LMRA must challenge the award through judicial action within three

months or “else be barred from raising any defenses to the award.” See United Steel,

Paper & Forestry, Rubber, Mfg. , Energy, Allied Indus. & Serv. Workers Int’l Union

AFL-CIO v. Wise Alloys, LLC, 642 F.3d 1344, 1352-53 (11 Cir. 2011) (borrowing

th

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three-month limitations period from § 12 of the Federal Arbitration Act, 9 U.S.C. §

12). Because an aggrieved employer “may not wait to attack the award in a

subsequent suit to confirm the award after the statute of limitations has run,” see id.

at 1352, Smurfit’s “impossibility” argument is time-barred and we decline to address

it. 

B

Smurfit also contends that the district court erred by not remanding the matter

back to the arbitrator and by addressing issues properly left to the arbitrator (e.g., the

methodology for computing back pay, the amount of back pay, and the award of prejudgment interest). The USW and Local 703 respond that the district court’s ruling

should be affirmed for a number of reasons. First, the back pay was properly

calculated based on Mr. Adams’ own position (rather than that of any comparable

position) given that Mr. Adams had been reinstated by Smurfit before the conclusion

of the lawsuit. Second, the district court had discretion to award pre-judgment

interest (and did not abuse that discretion) in light of Smurfit’s failure to comply with

the arbitration award. 

“As a general rule an arbitration award requiring reinstatement and back pay,

but leaving the calculation of the amount of back pay to the parties, is considered

final and enforceable. If the parties cannot agree on the amount of back pay,

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however, the normal course of action isto treat the award as ambiguous orincomplete

and remand the dispute to the original arbitrator to clarify the award.” Aluminum

Brick & Glass Workers Int’l Union v. AAA Plumbing Pottery Corp., 991 F.2d 1545,

1549 (11 Cir. 1993) (citations omitted). Although there are a number of decisions th

adhering to this “normal course” of action, they do not require reversal here. 2

As an initial matter, we do not believe that the award of back pay was

ambiguous. The arbitrator did not simply award back pay in the abstract, but

explained that Mr. Adams was “entitled to receive all back pay which he would have

received had he not been terminated,” minus any workers’ compensation benefits or

other payments received by him, “together with a restoration to all lost seniority.” 

Had Mr. Adams not been improperly terminated, he would have continued receiving

his regular salary, and therefore that salary was properly used by the district court to

compute the back pay. In the words of San Antonio Newspaper Guild, 481 F.2d at

2

See, e.g., San Antonio Newspaper Guild Local No. 25 v. San Antonio Light Div., 481

F.2d 821, 825-26 (5 Cir. 1973) (noting that remand is normal course of action, but declining to th

remand because second arbitrator had resolved ambiguity in first arbitrator’s award); American

Fed’n of State, County, & Mun. Employees Local Lodge No. 1803 v. Walker County Med. Ctr., Inc.,

715 F.2d 1517, 1519 (11 Cir. 1983) (requiring remand to arbitrator for clarification of what was th

meant by reinstatement of employee to “suitable position”); Bakery, Confectionary & Tobacco

Workers Local Union No. 362-T v. Brown and Williamson Tobacco Corp., 971 F.2d 652, 655-56

(11 Cir. 1992) (holding that district court did not err in remanding ambiguous award to arbitrator). th

But cf. American Airline Pilots Ass’n, Int’l v. Eastern Air Lines, Inc., 632 F.2d 1321, 1323 (5 Cir. th

1980) (stating, in context of arbitration order under the Railway Labor Act, that district court was

“not free to remand because the order was viewed as ambiguous”). 

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825, it would have been a “pointless gesture” to remand the matter to the arbitrator

for such a mathematical computation. See also Aeronautical Machinists v. LockheedGeorgia Co., 1982 WL 172521, *5 (11 Cir. 1982) (unpublished) (district court erred

th

in remanding matter back to arbitrator where award was “unequivocal” and was not

so vague and ambiguous so as to be “incapable of enforcement”). 

In addition, the arbitrator had already told the parties – when they could not

agree as to whether Smurfit was able to reinstate Mr. Adams – that his award was

clear, that the parties had reached an impasse, and that he declined to exercise any

further jurisdiction over the matter. Under these circumstances, the district court

cannot be faulted for concluding that a remand was not required and/or would have

proven ineffective.

Finally, we note that the district court announced its decision not to remand the

matter to the arbitrator from the bench after hearing oral argument on March 17,

2011. See Docket Entry 55 (Minute Entry) (“The Court will not send parties back to

arbitration.”). Because the district court’s later written order does not contain any

further explanation for its decision, we assume that the rationale for the ruling was

conveyed orally to the parties at the hearing. We cannot, however, properly review

that rationale because Smurfit did not order a transcript of the hearing, and as a result

there is no transcript in the record on appeal. As we have said before, “the burden

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is on the appellant to ensure that the record on appeal is complete, and where a failure

to discharge that burden prevents us from reviewing the district court’s decision we 

ordinarily will affirm the judgment.” Selman v. Cobb County School Dist., 449 F.3d

1320, 1333 (11 Cir. 2006) (citing cases). th

C

Turning to the district court’s award of pre-judgment interest on back pay, we

find no reversible error. As a general matter, a district court’s award of pre-judgment

interest is reviewed for an abuse of discretion, which means that the district court has

a “range of choices it may make and still be affirmed.” Blasland, Bouck, & Lee, Inc. 

v. City of N. Miami, 283 F.3d 1286, 1298 (11 Cir. 2002). The LMRA does not say th

anything about pre-judgment interest, but the Supreme Court has instructed that

where federal law is silent on the issue, courts may award pre-judgment interest in

response to considerations of fairness, see Blau v. Lehman, 368 U.S. 403, 414 (1962),

and the former Fifth Circuit, in Oil, Chem. & Atomic Workers Int’l Union, Local No.

4-447 v. American Cyanamid Co., 546 F.2d 1144, 1144 (5 Cir. 1977), applied this th

general rule to the LMRA, albeit in a non-arbitration context. Relevant for our

purposes are several cases holding that, in an LMRA enforcement action, a district

court has the authority to award pre-judgment interest on an arbitrator’s back pay

judgment. See, e.g., Quaker Oats Co. v. Int’l Chemical Workers Union, 1993 WL

10
47199, *3 (6 Cir. 1993); Vrable IV, Inc. v. SEIU Dist. 1199, 784 F.Supp.2d 846, th

854 (S.D. Ohio 2011); Millcraft-SMS Services, LLC v. United Steel Workers of

America, 346 F.Supp.2d 1176, 1186-87 (N.D. Ala. 2004). 

Against this background, and given the absence of authority forbidding an

award of pre-judgment interest in LMRA enforcement cases, the district court acted

within its discretion in awarding pre-judgment interest. For more than three years

Smurfit failed to reinstate Mr. Adams or give him the back pay to which the arbitrator

said he was entitled, thereby depriving him of substantial income for a long period

of time. The district court could have easily reasoned that it was fair to award prejudgment interest so that Mr. Adams would be made whole with respect to back pay. 

Cf. Int’l Union of District 50, United Mine Workers of America v. Bowman Transp.

Inc., 421 F.2d 934, 935 (5 Cir. 1970) (district court has discretion, in LMRA th

enforcement action, to award attorney’s fees and costs if “a party without justification

refused to abide by the award of an arbitrator”).

III

The district court’s rulings and judgment are affirmed. 

AFFIRMED.

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