PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1931

BROWN & PIPKINS, LLC, d/b/a Acsential Services,

Plaintiff – Appellant,

v.

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 32BJ,

Defendant – Appellee.

No. 15-1987

BROWN & PIPKINS, LLC, d/b/a Acsential Services,

Plaintiff – Appellee,

v.

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 32BJ,

Defendant – Appellant. 

Appeals from the United States District Court for the Eastern District of Virginia, at 

Alexandria. Claude M. Hilton, Senior District Judge. (1:15−cv−00526−CMH−TCB)

Argued: October 26, 2016 Decided: January 23, 2017
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Before KING, KEENAN, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge King and 

Judge Keenan joined.

ARGUED: Stephen Gregory Joy, SMITH, CURRIE & HANCOCK LLP, Washington, 

D.C., for Appellant/Cross-Appellee. Andrew Lee Strom, SEIU, LOCAL 32BJ, New 

York, New York, for Appellee/Cross-Appellant. ON BRIEF: Stephen J. Kelleher, 

SMITH, CURRIE & HANCOCK LLP, Washington, D.C., for Appellant/Cross-Appellee.
3

DIAZ, Circuit Judge:

Brown & Pipkins, LLC, doing business as Acsential Services (“B&P”) appeals the 

district court’s confirmation of four labor arbitration awards, and Service Employees 

International Union, Local 32BJ cross-appeals for attorneys’ fees after the district court 

failed to address its entitlement to fees. We affirm the confirmation of the arbitration 

awards, based in large part upon the limited scope of our review of a labor-arbitration 

decision pursuant to a collective bargaining agreement (a “CBA”), and hold that the 

Union waived its claim for attorneys’ fees by not complying with Federal Rule of Civil 

Procedure 54.

I.

A.

In September 2012, B&P began providing janitorial services for the Department of 

the Army at Fort Belvoir in Fairfax County, Virginia. Janitorial employees worked 

without a CBA until May 17, 2013, when B&P and the Union signed a CBA which 

recognized the Union as the exclusive bargaining representative for B&P’s janitorial 

employees at Fort Belvoir. The CBA was retroactive to September 4, 2012.

In the spring and summer of 2013, the Union filed notices that it intended to 

arbitrate four separate grievances with B&P related to alleged violations of the CBA. 

The parties chose Arbitrator Garvin Lee Oliver to hear each grievance, and no transcripts 

were taken at the hearings. We describe relevant parts of the grievances and 

corresponding arbitration awards seriatim.
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1.

On May 29, 2013, the Union filed a grievance alleging that B&P violated the CBA 

by reducing the full-time work schedule from 40 to 35 hours per week on January 16, 

2013. The Shop Steward spoke with B&P management about the reduction in hours on 

the same day that B&P announced the change, but B&P would not recognize the Union 

or discuss grievance issues. B&P claimed that it cut employees’ hours as a result of a 

decision by the Army to decrease funding for the B&P contract from approximately 

$177,903 per month to approximately $154,500 per month.

The arbitrator granted the grievance in part and issued what we refer to as the 

Hours Reduction Award. In granting the grievance, the arbitrator weighed conflicting 

provisions in the CBA. Article 3 of the CBA, titled “Management Rights,” comprises 

three Sections which, in sweeping language, vest certain “rights, prerogatives, and 

functions” in B&P. J.A. 261. Relevant here, Article 3, Section 2 reserves to B&P the 

right to “adjust schedules of work and work assignments based on its judgment of 

business requirements,” and Article 3, Section 3 provides that “[s]uch managerial right[s] 

shall not be the subject of any provision of the Agreement or of mandatory bargaining 

between” B&P and the Union. J.A. 261. But Article 6 of the CBA, titled “Hours of 

Work,” also addresses the scheduling of work. Article 6, Section 1 provides: “An 

employee who is regularly schedule[d] for thirty five (35) hours or more per week shall 

be consider[ed] full time. The workweek for all full time employees shall be 40 hours 

per week, 8 hours per day, Monday through Friday.” J.A. 263.
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The arbitrator reconciled these provisions by reasoning that “Article [3], 

Sections 2 and 3 gave [B&P] the general right to schedule work . . . but Article 6, 

Section 1 impliedly restricted [B&P’s] right to schedule work relating to the duration of 

work for full time employees.” J.A. 48. Accordingly, the arbitrator held that B&P 

“violated Article 6, Section 1 of the [CBA] on January 16, 2013 when it reduced the work 

day by one hour for all janitorial full time employees.” J.A. 48.

The arbitrator also rejected B&P’s argument that the grievance was procedurally 

defective because the Union failed to comply with the CBA’s Grievance and Arbitration 

Procedure. Article 11, Section 2 of the CBA splits the Grievance and Arbitration 

Procedure into three Steps, relevant parts of which we reproduce here:

Step 1[:] The Shop Steward must discuss the grievance with the 

project manager within three (3) days of the incident. [B&P] shall render a 

decision in writing within twenty-four (24) hours after the conclusion of 

Step 1.

. . . .

Step 3: Arbitration: . . . .

. . . .

The Arbitrator shall have jurisdiction and authority to apply, 

interpret and determine compliance with the terms of this Agreement, but in 

no case add to, deviate from, detract from or alter in any way the provision 

of the Agreement.

J.A. 266–67.

The arbitrator began by noting that the Union had failed to abide by Step 1’s threeday limit to discuss grievances, as the parties, with B&P’s reserving its right to bring a 

timeliness challenge, “agreed to consider the [May 29, 2013] grievance initiation letter as 

[S]tep 1 of the grievance procedure.” J.A. 47. Nevertheless, the arbitrator reasoned that 

it would have been “unreasonable to require strict compliance with the time limits” in this 
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case. J.A. 48. In particular, the arbitrator identified two “mitigating circumstances”: (1) 

the National Labor Relations Board was “processing” a dispute between the Union and 

B&P regarding the “processing of grievances prior to the” adoption of the CBA in 2012, 

and (2) the violation was of a “continuing nature.” J.A. 47–48.

The Hours Reduction Award orders B&P to, inter alia, restore the 40-hour 

workweek for full-time janitorial employees and pay employees for any lost hours

incurred while the 35-hour workweek was in effect.

2.

On July 12, 2013, the Union filed a grievance alleging that B&P violated the CBA 

by paying two employees, Alicia Duran and Susana Cortez, at the “Custodians” rate 

instead of at the higher “Custodian/Driver” rate commensurate with their responsibilities. 

The arbitrator granted the grievance and issued what we refer to as the Drivers’ Pay 

Award.

Article 16 of the CBA lists three wage classifications, including “Custodians” and 

“Custodian/Driver,” but does not define them other than by providing corresponding rates 

of pay. “Custodian/Drivers” are paid $0.60 more per hour than “Custodians.”

The arbitrator traced the origins of the “Custodian/Driver” classification to a letter 

of understanding that the Union and one of B&P’s predecessors at Fort Belvoir 

negotiated in 2008. That letter of understanding provided that the predecessor would pay 

“$0.60 per paid hour more to the custodial service workers who drive our vehicles in 

order to transport workers to various sites.” J.A. 135. The arbitrator found that the letter 

of understanding was the “genesis” for, and thus informed the definition of, the 
7

“Custodian/Driver” classification. The arbitrator noted that the rate appeared in previous 

CBAs between the Union and B&P’s predecessors, and that those predecessors had paid 

employees at that rate when they had transported workers to their worksites, brought 

equipment to their worksites, and driven to multiple locations within Fort Belvoir.

The arbitrator then examined the type of work that B&P assigned to Duran and 

Cortez. He found that B&P assigned them to schedules that “included multiple buildings, 

some of which were far apart,” and “required [them] to alternate driving themselves and 

another custodian . . . in their own personal vehicles to the buildings they were required 

to clean.” J.A. 53. Additionally, he found that B&P required them to “carry equipment 

from the office to these buildings,” and that B&P generally refused to provide either with 

“a company car, driver’s pay, or regular gas reimbursement.” J.A. 53–54.

Based upon the similarities between the work performed by Duran and Cortez and 

the work performed by employees whom B&P’s predecessors had paid at the 

“Custodian/Driver” rate, the arbitrator concluded that B&P violated Article 16 of the 

CBA by not paying Duran and Cortez at the higher rate. The arbitrator rejected B&P’s 

argument that, per the letter of understanding, neither employee could be characterized as 

a “Custodian/Driver” because each generally drove her own vehicle. The arbitrator 

reasoned that B&P’s predecessors had provided corporate vehicles in similar 

circumstances, and thus B&P could not escape paying the higher rate by requiring the 

employees to use their own vehicles.
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The Drivers’ Pay Award ordered B&P to, inter alia, pay Duran and Cortez at the 

“Custodian/Driver” rate and provide back pay based upon an eight-hour day, pursuant to 

the Hours Reduction Award.

3.

The Union filed a second grievance on July 12, 2013, alleging that B&P violated 

the CBA by unreasonably denying employees’ requests for vacation time. According to 

the arbitrator, “[a]t the hearing on January 23, 2015 the parties stipulated to the issue: 

Whether custodial employees are owed unused vacation in the form of money, and what 

is the amount of accumulated vacation creditable to each employee.” J.A. 369. B&P, 

however, contends that it objected at the beginning of the hearing to recharacterizing the 

grievance from denying vacation time to withholding vacation pay, preserved its right to 

call the grievance untimely, and, rather than stipulating to the issue that the arbitrator 

described, stipulated only “that the grievance was agreed to have been presented to [it] as 

of [January 23, 2015].” J.A. 369.

After the hearing, the parties agreed to submit the case for decision based on 

exhibits and briefs. In its brief, B&P argued, inter alia, that the vacation pay grievance 

was untimely because the Union did not present it to B&P management within three days 

of the incident giving rise to the grievance. In an interim order, the arbitrator rejected 

B&P’s timeliness argument, concluding that B&P had “waived its right to invoke the 

time limits of the [CBA] where the issue was raised for the first time after the hearing in 

which the parties stipulated to the issue in the case.” J.A. 369. The arbitrator 
9

acknowledged B&P’s contention that the parties had made a different stipulation, but 

stated that he had “no recollection of [that] stipulation.” J.A. 369.

The arbitrator subsequently granted the grievance in part and issued what we refer 

to as the Vacation Pay Award. The Vacation Pay Award ordered B&P to pay certain 

employees for accrued, unused vacation benefits and to comply with applicable 

regulations.

4.

On August 1, 2013, the Union filed a grievance alleging that B&P owed money to 

Maria Amaya and Ana Guerrero for 14 and 27 hours of work, respectively. B&P 

allegedly paid each employee the amount requested in the grievance in 2014. B&P then 

allegedly paid each employee the amount requested in the grievance for a second time in 

2015, and sent purported records of those payments to the arbitrator and the Union on 

January 19, 2015. Nevertheless, the arbitrator held a hearing the next day, which only the 

Union attended. According to B&P, it did not attend the hearing because it had 

submitted proof of payment to the arbitrator.

The arbitrator granted the grievance and issued what we refer to as the Monies 

Owed Award. That award ordered B&P to, inter alia, pay Amaya and Guerrero for the 

number of hours specified in the grievance, with interest. The award also provided that 

B&P “shall be given credit for any back pay or other payments previously made that are 

consistent with this Award.” J.A. 155.

In a later order, the arbitrator denied B&P’s request to “waive or reduce the fees

for arbitration services” for the hearing. J.A. 431–34. The arbitrator noted that the 
10

records of payment that B&P sent to him “did not indicate . . . that the case was settled,” 

and that he “could not determine from the two documents that the amounts were correct 

to cover all aspects of the grievance, including interest, etc.” J.A. 432. In March 2015, 

B&P allegedly paid each employee the interest amount contemplated in the Monies 

Owed Award.

B.

B&P filed a complaint in the Eastern District of Virginia seeking to vacate the 

Hours Reduction Award and the Drivers’ Pay Award. The Union filed an answer and 

counterclaim to confirm all four arbitration awards and to receive “reasonable attorneys’ 

fees and costs.” J.A. 150. In a corresponding brief, the Union made its argument for

attorneys’ fees. B&P then filed an answer—including an affirmative defense that the 

Monies Owed Award was moot—and a counterclaim-in-reply to vacate the Vacation Pay 

Award. In a corresponding brief, B&P responded to the Union’s argument for attorneys’ 

fees.

The district court confirmed all four arbitration awards. The court reasoned that 

“all of the Arbitrator’s awards arose directly from the [CBA] and his interpretation of that 

agreement,” and that “none of the[] awards were irrational or evidence manifest disregard 

of law.” J.A. 439–40. The court did not address the issue of attorneys’ fees, and the 

Union did not submit a motion for attorneys’ fees after the court entered its order.

B&P’s appeal and the Union’s cross-appeal followed.
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II.

We address B&P’s appeal of the district court’s confirmation of the four 

arbitration awards and the Union’s cross-appeal for attorneys’ fees in turn.

A.

While B&P makes different arguments against confirmation for each arbitration 

award, our standard of review remains the same. This court “review[s] de novo the 

district court’s denial of a motion to vacate an arbitration award.” Jones v. Dancel, 792 

F.3d 395, 401 (4th Cir. 2015). This case arises under § 301 of the Labor Management 

Relations Act, 29 U.S.C. § 185, “as the controversy involves an assertion of rights under 

an agreement between an employer and a labor organization.” Major League Baseball 

Players Ass’n v. Garvey, 532 U.S. 504, 509 (2001) (per curiam). Our review of a laborarbitration decision pursuant to a CBA is “very limited”:

Courts are not authorized to review the arbitrator’s decision on the merits 

despite allegations that the decision rests on factual errors or misinterprets 

the parties’ agreement. . . . [I]f an arbitrator is even arguably construing or 

applying the contract and acting within the scope of his authority, the fact 

that a court is convinced he committed serious error does not suffice to 

overturn his decision. It is only when the arbitrator strays from 

interpretation and application of the agreement and effectively dispenses his 

own brand of industrial justice that his decision may be unenforceable. 

When an arbitrator resolves disputes regarding the application of a contract, 

and no dishonesty is alleged, the arbitrator’s improvident, even silly, 

factfinding does not provide a basis for a reviewing court to refuse to 

enforce the award.

Id. (internal citations and quotation marks omitted); see also PPG Indus., Inc. v. Int’l 

Chem. Workers Union Council of United Food & Commercial Workers, 587 F.3d 648, 

652 (4th Cir. 2009) (applying the standard of review outlined in Garvey).
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1.

B&P makes two arguments for why the Hours Reduction Award should be 

vacated, and, in the alternative, an argument for why it should be modified to run from

the date that the Union filed the grievance. We reject each argument.

a.

We first consider B&P’s argument for vacatur based on the arbitrator’s failure to 

sufficiently construe substantive provisions in the CBA. In particular, B&P says that the 

arbitrator “manifestly disregarded” the sweeping language in Article 3 of the CBA, which 

vests certain management rights in B&P, and exceeded his authority by using Article 6, 

Section 1 of the CBA to modify Article 3 while simultaneously disregarding the part of 

Article 6, Section 1 which authorizes a 35-hour workweek.

Our review of the Hours Reduction Award shows that, rather than “manifestly 

disregarding” relevant portions of the CBA, the arbitrator construed that document in 

coming to his decision, which precludes vacatur on this ground. Garvey, 532 U.S. at 509;

see also PPG Indus., 587 F.3d at 653 (reversing vacatur where arbitrator interpreted the 

CBA and characterizing company’s argument that arbitrator ignored plain language of 

the CBA as “an [impermissible] attack on the correctness of the arbitrator’s decision”). 

Specifically, the arbitrator weighed Article 3’s Management Rights provisions against the 

part of Article 6, Section 1 which provides that “[t]he workweek for all full time 

employees shall be 40 hours per week, 8 hours per day,” and concluded that the latter 

controlled because it “impliedly restricted [B&P’s] right to schedule work.” J.A. 48.
13

By balancing competing provisions in the CBA and coming to a conclusion, the

arbitrator cleared the very low bar needed to insulate the award from a charge that he 

failed to construe the CBA. B&P’s arguments on this point amount to an impermissible 

attack on the correctness of the arbitrator’s decision. That is true notwithstanding the fact 

that, as B&P points out, the arbitrator failed to explicitly deal with the part of Article 6, 

Section 1 which provides that “[a]n employee who is regularly schedule[d] for thirty five 

(35) hours or more per week shall be consider[ed] full time.” J.A. 263.

To require an arbitrator to address every single provision of any relevance 

whatsoever in a contract would be to require an arbitrator’s award to be free of 

ambiguity—a standard we have rejected. PPG Indus., 587 F.3d at 652 (citing United 

Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 598 (1960)). Indeed, 

the facts here are a far cry from those in the rare cases where this court has vacated a 

labor arbitrator’s award. See Kennametal, Inc. v. United Steelworkers Of Am., AFL-CIO 

CLC, 96 F. App’x 851, 854–55 (4th Cir. 2004) (per curiam) (affirming vacatur where 

arbitrator “intentionally ignored pertinent portions of the CBA”); Champion Int’l Corp. v. 

United Paperworkers Int’l Union, AFL-CIO, 168 F.3d 725, 731 (4th Cir. 1999) (vacating 

award where arbitrator based award on a contract from which he “had no contractual 

authority . . . to make” an award); Mountaineer Gas Co. v. Oil, Chem. & Atomic Workers 

Int’l Union, 76 F.3d 606, 609–10 (4th Cir. 1996) (affirming vacatur where “arbitrator 

blatantly ignored the unambiguous language of [the company’s] Drug Policy [which 

required employee’s termination] and [instead] fashioned a modified penalty that 
14

appealed to his own notions of right and wrong” and lacked support from any part of the 

CBA).

b.

We next consider B&P’s argument that vacatur is warranted because the arbitrator 

exceeded his authority by finding the grievance timely under the continuing violation 

doctrine. We conclude that the arbitrator was within his authority to do so.

There is no dispute that under Article 11, Section 2, Step 3, the question of

procedural arbitrability was for the arbitrator to decide. As such, the deferential standard 

of judicial review which applies to a labor arbitrator’s determination on the merits also 

applies to the threshold decision of procedural arbitrability. Nat’l Postal Mail Handlers 

Union v. Am. Postal Workers Union, 589 F.3d 437, 441–42 (D.C. Cir. 2009) (citing AT & 

T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649 (1986)).1

 Whether the 

arbitrator made the correct decision is, of course, disputed.

By waiting until May 29, 2013, to file this grievance, the Union failed to comply 

with Article 11, Section 2, Step 1 of the CBA’s Grievance and Arbitration Procedure, 

technically rendering the grievance untimely. The arbitrator nevertheless found the 

grievance timely for two reasons: (1) the existence of a dispute between the Union and 

B&P regarding the processing of grievances prior to the adoption of the CBA in 2012, 

 1 Though National Postal Mail Handlers Union arose in the postal context, the 

court noted that “the standard for judicial review of arbitration awards in the postal 

context is the same as the standard . . . for judicial review of labor arbitration awards 

under § 301 [of the Labor Management Relations Act].” 589 F.3d at 440–41.
15

and (2) the “continuing nature” of the violation. J.A. 48. Because B&P’s argument 

focuses on the arbitrator’s second justification and we find that justification sufficient to 

support the arbitrator’s decision on timeliness, we do not consider the validity of the 

arbitrator’s first justification.

“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 [CBA] although not expressed in it.” United Steelworkers of Am. 

v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581–82 (1960). “There are too many 

people, too many problems, too many unforeseeable contingencies to make the words of 

the contract the exclusive source of rights and duties.” McCormick v. AT & T Techs., 

Inc., 934 F.2d 531, 536 (4th Cir. 1991) (en banc) (quoting Warrior & Gulf Navigation

Co., 363 U.S. at 579).

One such substantive background principle of law is the common-law continuing 

violation doctrine, which arbitrators have invoked—and courts have to various degrees

acknowledged—as standing for the proposition that a violation which is continuous in 

nature gives rise to a new grievance each day. See United Steel, Paper & Forestry, 

Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union AFL-CIO-CLC v. Wise 

Alloys, LLC, 807 F.3d 1258, 1272–73 (11th Cir. 2015) (affirming application of the 

continuing violation doctrine where violation was company’s failure to deduct a cost-ofliving allowance from a weekly health-care premium); Nat’l Postal Mail Handlers 

Union, 589 F.3d at 439–44 (affirming arbitrator’s interpretation of agreement to 

“incorporate a ‘continuing violations’ theory under which” he could hear disputes about 
16

pre-1992 work assignments that continued after 1992 even though agreement banned new 

disputes regarding pre-1992 work assignments); El Mundo Broad. Corp. v. United 

Steelworkers of Am., AFL-CIO CLC, 116 F.3d 7, 10 (1st Cir. 1997) (rejecting application 

of the continuing violation doctrine where the violation in question was the failure to post 

a job opening, but in dicta acknowledging the doctrine when the violation is a “daily 

failure to pay”).

The underlying violation in this grievance is B&P’s failure to pay employees their 

bargained-for salary. Because that violation is continuous in nature, the arbitrator 

arguably construed the CBA when he looked beyond the express provisions in the

Grievance and Arbitration Procedure and applied the continuing violation doctrine to find 

the grievance timely. And even if we were “convinced he committed serious error” in 

doing so, which is an issue we do not reach, that would “not suffice to overturn” the 

Hours Reduction Award. Garvey, 532 U.S. at 509.

c.

Finally, we consider B&P’s contention that, in the alternative to vacatur, the Hours 

Reduction Award should not apply retroactively but rather should run from the date of 

the grievance. As to this question, we give arbitrators wide latitude to formulate 

remedies:

When an arbitrator is commissioned to interpret and apply the collective 

bargaining agreement, he is to bring his informed judgment to bear in order 

to reach a fair solution of a problem. This is especially true when it comes 

to formulating remedies. There the need is for flexibility in meeting a wide 

variety of situations.

Enter. Wheel & Car Corp., 363 U.S. at 597.
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We are mindful, however, that our deference is not unlimited. Some courts that 

have applied the continuing violation doctrine in the labor arbitration context have, in 

dicta, cautioned against using it to authorize relief that precedes the filing of the 

technically untimely grievance. See Wise Alloys, 807 F.3d at 1272–73 (implying in dicta 

that using the continuing violation doctrine to award retroactive relief could constitute 

reversible error, as it would effectively rewrite the grievance procedures); UMass Mem’l 

Med. Ctr., Inc. v. United Food & Commercial Workers Union, 527 F.3d 1, 7 (1st Cir. 

2008) (affirming arbitrator’s application of the continuing violation doctrine and in dicta 

noting that “there was no question of retroactivity of relief or harm to settled expectations 

because the arbitrator refused to award a retroactive remedy”).

We understand the animating principle of these notes of caution to be respect for 

settled expectations. Under the deferential standard of review that we apply to the 

arbitrator’s remedy, Enter. Wheel & Car Corp., 363 U.S. at 597, and cognizant that 

“serious error” alone is insufficient to overturn this award, Garvey, 532 U.S. at 509, we 

find that whatever harm there is to B&P’s settled expectations is too insignificant to 

warrant relief. The Shop Steward spoke with B&P management about the reduction in 

hours on the day that B&P announced the change. In other words, B&P was on notice of 

a potential grievance from day one. Moreover, the Union did not wait for over four

months to file the grievance in order to surprise B&P. Rather, employees worked without 

a CBA until May 17, 2013, and B&P would not recognize the Union or discuss grievance 

issues on January 16, 2013 (when the violation first occurred).
18

Based upon the peculiar facts of this case, we find that the arbitrator did not 

“dispense his own brand of industrial justice” by ordering damages retroactive to the day 

that B&P announced the reduction in hours. Garvey, 532 U.S. at 509 (alteration 

omitted). Rather, we characterize the Hours Reduction Award as a product of the 

arbitrator’s bringing his “informed judgment to bear in order to reach a fair solution of a 

problem.” Enter. Wheel & Car Corp., 363 U.S. at 597.

In sum, the district court did not err in confirming the Hours Reduction Award.

2.

B&P contends that the Drivers’ Pay Award should be vacated for three reasons.

First, the arbitrator wrongly found that B&P refused to provide the grievants with 

company cars. Second, the arbitrator failed to credit relevant testimony favorable to 

B&P. Third, the arbitrator exceeded his authority by construing the word “drivers” to 

include employees like Duran and Cortez, who did not drive B&P’s vehicles.

We reject B&P’s first two arguments, because they amount to an impermissible 

attack on the arbitrator’s honest findings of fact. Garvey, 532 U.S. at 509. As for B&P’s 

third argument, our review of the Drivers’ Pay Award reveals that the arbitrator did not 

come close to exceeding his authority. Instead, as arbitrators are allowed to do, he 

construed the CBA by looking to extrinsic evidence to define an ambiguous term. See

PPG Indus., 587 F.3d at 653–54 (upholding labor arbitrator’s right to look to extrinsic 

evidence to give meaning to ambiguous terms).

Faced with wage classifications left undefined by the CBA, the arbitrator gave 

meaning to the “Custodian/Driver” classification by looking to a letter of understanding 
19

between the Union and one of B&P’s predecessors and the work performed by 

employees whom B&P’s predecessors had paid at the “Custodian/Driver” rate. Based 

upon the similarities between the work performed by the grievants and the work 

performed by employees whom B&P’s predecessors had paid at the “Custodian/Driver” 

rate, the arbitrator concluded that the grievants were entitled to be paid at that rate as 

well. The arbitrator was at all times construing the CBA in the course of this analysis, 

including when he reasoned that B&P could not avoid paying the higher rate by requiring 

Duran and Cortez to drive their own cars.

Accordingly, the district court did not err in confirming the Drivers’ Pay Award.

3.

B&P contends that the Vacation Pay Award should be vacated for two reasons. 

First, at the January 2015 hearing, the arbitrator improperly allowed the Union to 

recharacterize the grievance from denying vacation time to withholding vacation pay. 

Second, the Union violated the CBA’s Grievance and Arbitration Procedure by waiting 

until January 2015 to bring a grievance for a vacation-pay policy that B&P put into effect 

in April 2013. B&P also insists that it never waived its objection to the timeliness of the 

grievance. For its part, the Union contends that the arbitrator correctly found that B&P

stipulated to recharacterizing the grievance.

B&P’s arguments against confirmation of the Vacation Pay Award all fail for the 

same reason: the arbitrator found that B&P waived its objection to the timeliness of the 

grievance by stipulating to the issue at the January 2015 hearing. “[C]ourts presume that 

the parties intended arbitrators, not courts, to decide disputes about the meaning and 
20

application of particular procedural preconditions for the use of arbitration. These 

procedural matters include claims of waiver . . . .” BG Grp. PLC v. Republic of 

Argentina, 134 S. Ct. 1198, 1207 (2014) (internal citation and quotation marks omitted). 

To that end, “[p]arties to an arbitration may stipulate the issues they want determined and 

increase or limit the arbitrator’s contractual authority by their express submission.” Hill 

v. Staten Island Zoological Soc’y, Inc., 147 F.3d 209, 214 (2d Cir. 1998). According to 

the arbitrator, the Union and B&P did just that—they stipulated to the arbitrability of a 

recharacterized and otherwise untimely grievance, thereby waiving any objections to 

timeliness.

B&P’s argument amounts to an attack on the arbitrator’s finding that the parties 

stipulated to the recharacterized grievance at the January 2015 hearing. But there is no 

transcript of the hearing, and the Union contests B&P’s argument. Indeed, the arbitrator 

acknowledged B&P’s claim that the parties made a different stipulation, but stated that he 

had “no recollection of” the alternative stipulation and “wrote down for [his] record the 

one [that B&P contests on appeal] with information provided by both parties.” J.A. 369. 

Once again, we will not entertain an attack on the arbitrator’s honest findings of fact. 

Garvey, 532 U.S. at 509.

Thus, the district court did not err in confirming the Vacation Pay Award.

4.

Finally, B&P contends that the dispute underlying the Monies Owed Award is 

moot, and therefore confirmation is improper. In particular, B&P argues that it has twice 

before paid the grievants the amounts awarded by the Monies Owed Award and that after 
21

the arbitrator issued the award it paid the grievants the interest amounts specified in the 

award. B&P also claims that the district court treated its affirmative defense of mootness 

as a request for vacatur. The Union, however, refuses to concede that B&P made the 

payments it claims to have made to the grievants, and asks that we confirm this award.

“[A] case is moot when the issues presented are no longer ‘live’ or the parties lack 

a legally cognizable interest in the outcome.” United States v. Springer, 715 F.3d 535, 

540 (4th Cir. 2013) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). “A case 

becomes moot only when it is impossible for a court to grant any effectual relief whatever 

to the prevailing party.” Id. (quoting Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S. 

Ct. 2277, 2287 (2012)). As an initial matter, B&P is correct that the district court 

apparently analyzed the Monies Owed Award as if B&P had requested vacatur rather 

than as if B&P had raised mootness as an affirmative defense to confirmation. The 

district court never considered whether a live controversy existed. Notwithstanding that 

error and the evidence of payment that B&P has entered into the record, however, we 

find that confirmation of the Monies Owed Award is proper because a live controversy 

regarding the award exists.2

The arbitrator never found that B&P complied with the Monies Owed Award. 

Rather, in an order denying B&P’s request to modify his fees for the January 2015 

 2 We do not reach the question of whether a federal court may confirm a labor 

arbitration award where there is no live controversy between the parties regarding the 

award necessitating judicial enforcement. See 1199 SEIU United Healthcare Workers E. 

v. Civista Med. Ctr., Inc., No. DKC 10-0479, 2011 WL 310486, at *2 (D. Md. Jan. 28, 

2011) (collecting cases on the topic, which has divided the circuits).
22

hearing which B&P did not attend, the arbitrator wrote that the records of payment which 

B&P sent to him and which B&P argues here demonstrate compliance with the Monies 

Owed Award “did not indicate . . . that the case was settled.” J.A. 432. That statement 

by the arbitrator, the district court’s failure to address the issue, and the Union’s 

insistence that a controversy still exists convince us that it is not impossible to grant any

effectual relief by affirming the confirmation of the Monies Owed Award. In arriving at 

that conclusion, we are mindful that the arbitrator’s award provides that B&P “shall be 

given credit for any back pay or other payments previously made that are consistent with 

this Award.” J.A. 155.

For these reasons, the district court did not err in confirming the Monies Owed 

Award.

B.

The controlling issue in the Union’s cross-appeal for attorneys’ fees is whether its 

failure to submit a motion for fees pursuant to Federal Rule of Civil Procedure 54(d)

waived the claim. Beyond rebutting that proposition, the Union makes a number of 

arguments in its cross-appeal. It contends that it should be awarded attorneys’ fees 

because B&P’s challenges to the awards were presumptively unjustified attempts to 

relitigate the arbitrations on the merits, and that the district court abused its discretion by 

not explaining why it denied attorneys’ fees. But antecedent to those arguments is the 

question whether the Union preserved its right to recover attorneys’ fees by properly 

asking for them. We think not, because the Union failed to abide by Rule 54(d)’s 

requirements, thereby waiving its claim.
23

“In general, ‘the decision whether and in what amount to award attorney fees is 

one commit[t]ed to the award court’s discretion, subject only to review for abuse of that 

discretion.’” Andrews v. Am.’s Living Ctrs., LLC, 827 F.3d 306, 312 (4th Cir. 2016)

(alteration in original) (quoting United Food & Commercial Workers, Local 400 v. 

Marval Poultry Co., 876 F.2d 346, 350–51 (4th Cir. 1989)). But “it may be revealed 

upon inspection that such a decision actually turned on an express or implicit finding of 

fact or conclusion of law that dictated the ultimate result.” Marval Poultry, 876 F.2d at 

351. We review questions of law, including an interpretation of a Federal Rule of Civil 

Procedure, de novo. Bosley v. Mineral Cty. Comm’n, 650 F.3d 408, 411 (4th Cir. 2011).

1.

In this case, we cannot undertake an “inspection” of the district court’s order to 

decipher whether it “turned on an express or implicit finding of fact or conclusion of law 

that dictated the ultimate result,” as opposed to an exercise of the district court’s 

“available discretion,” or even some combination of all of the above. Marval Poultry, 

876 F.2d at 351. That is because the district court said nothing about attorneys’ fees. On 

its face, that silence could be construed as an abuse of discretion, as “[p]erhaps [abuse of 

discretion’s] most obvious manifestation is in a failure or refusal, either express or 

implicit, actually to exercise discretion.” James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 

1993).

But we do not review the district court’s silence in a vacuum. Instead, we 

consider the surrounding facts. The Union devoted a section of its brief in support of 

enforcing the arbitration awards to the issue of attorneys’ fees, and B&P did the same in 
24

its rebuttal brief in support of its motion to vacate the Vacation Pay Award. After the 

district court confirmed the four awards, the Union failed to submit a motion for 

attorneys’ fees. Thus, the Union did not comply with Rule 54(d), which, subject to 

certain exceptions that we describe below and find inapplicable here, provides the 

procedural framework for requesting attorneys’ fees. Mindful that we cannot divine the 

district court’s intentions from its silence, we nevertheless find that its decision 

necessarily turned, at least in part, on an interpretation of Rule 54(d). Because we need 

only interpret Rule 54(d) to resolve this cross-appeal, and we review an interpretation of 

a Federal Rule of Civil Procedure de novo, we apply that standard.

2.

Rule 54(d) provides that “[a] claim for attorney’s fees . . . must be made by motion 

unless the substantive law requires those fees to be proved at trial as an element of 

damages.” Fed. R. Civ. P. 54(d)(2)(A). Section 301 of the Labor Management Relations 

Act, under which this case arises, does not require that attorneys’ fees be proved at trial 

as an element of damages or otherwise provide for an award of attorneys’ fees. Marval 

Poultry, 876 F.2d at 350. As a result, the plain language of Rule 54(d) required that the 

Union’s claim for attorneys’ fees be made by motion.

Rule 54(d) goes on to specify:

Unless a statute or court order provides otherwise, the motion must: (i) be 

filed no later than 14 days after the entry of judgment; (ii) specify the 

judgment and the statute, rule, or other grounds entitling the movant to the 

award; [and] (iii) state the amount sought or provide a fair estimate of it.
25

Fed. R. Civ. P. 54(d)(2)(B)(i)–(iii). Here, no statute or court order “provides otherwise,”

and none of the other exceptions to Rule 54(d) apply.3

 Accordingly, Rule 54(d) required 

the Union to submit a motion for attorneys’ fees between 0–14 days after the district 

court issued its order. See Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 889 (9th 

Cir. 2000) (“Rule 54 expressly conditions a motion for attorneys’ fees on an entry of 

judgment.”). This the Union failed to do. 

The Union attempts to avoid the application of Rule 54(d) by arguing that the 

parties fully briefed the issue of attorneys’ fees before the district court. But Rule 54(d)

makes clear that a motion for attorneys’ fees is not proper until after the district court has 

entered judgment. Even cases upon which the Union relies share this procedural posture. 

See, e.g., San Diego Police Officers’ Ass’n v. San Diego City Emps.’ Ret. Sys., 568 F.3d 

725, 732–33, 742 (9th Cir. 2009) (parties briefed issue of attorneys’ fees in the district 

court after that court granted summary judgment); Prod. & Maint. Emps.’ Local 504 v. 

Roadmaster Corp., 954 F.2d 1397, 1400 (7th Cir. 1992) (plaintiffs filed a motion for 

attorneys’ fees with the district court after that court entered judgment); Marval Poultry, 

876 F.2d at 349 (union “moved for an award of fees” in the district court after that court 

 3 Rule 54(d)(2)(D) provides that “[b]y local rule, the court may establish special 

procedures to resolve fee-related issues without extensive evidentiary hearings.” There is 

no Local Rule in the United States District Court for the Eastern District of Virginia 

relevant to this issue. Rule 54(d)(2)(E) further provides that Rule 54(d)(2)’s

requirements “do not apply to claims for fees and expenses as sanctions for violating 

these rules or as sanctions under 28 U.S.C. § 1927.” Once again, these exceptions are 

inapplicable here.
26

entered judgment). We will not insist that a district court respond to each proffered 

argument, regardless of whether it is properly before it.

Accordingly, the Union waived its claim for attorneys’ fees by not complying with 

Rule 54(d).

III.

For reasons given, we affirm the district court’s confirmation order.

AFFIRMED