                                         PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ___________

                      No. 17-2349
                      ___________

RONALD A. CUP, on behalf of himself and all other persons
    similarly situated; UNITED STEEL PAPER AND
  FORESTRY RUBBER MANUFACTURING ALLIED
       INDUSTRIAL AND SERVICE WORKERS
       INTERNATIONAL UNION AFL CIO CLC

                            v.

    AMPCO PITTSBURGH CORPORATION; AKERS
          NATIONAL ROLL COMPANY;
   AKERS NATIONAL ROLL COMPANY HEALTH &
           WELFARE BENEFITS PLAN,

                                       Appellants
                       __________

      On Appeal from the United States District Court
         for the Western District of Pennsylvania
                 (D.C. No. 2-17-cv-00189)
       District Judge: Honorable Arthur J. Schwab
                       ___________
                  Argued May 1, 2018
      Before: SMITH, Chief Judge, HARDIMAN, and
               RESTREPO, Circuit Judges.

                  (Filed: August 29, 2018)

Pamina G. Ewing
Joel R. Hurt
Ruairi McDonnell
Feinstein Doyle Payne & Kravec
429 Fourth Avenue
Law & Finance Building, Suite 1300
Pittsburgh, PA 15219
       Attorneys for All Appellees

Nathan L. Kilbert [Argued]
United Steelworkers of America
Five Gateway Center
60 Boulevard of Allies
Room 807
Pittsburgh, PA 15222
       Attorney for Appellee United Steel Paper and Forestry
       Rubber Manufacturing Allied Industrial and Service
       Workers International Union AFL CIO CLC

Jeremy P. Blumenfeld [Argued]
Brian T. Ortelere
Christen Casale
Morgan Lewis & Bockius
1701 Market Street
Philadelphia, PA 19103




                             2
Sean K. McMahan
Morgan Lewis & Bockius
1111 Pennsylvania Avenue, N.W.
Suite 800 North
Washington, DC 20004

Stephanie R. Reiss
Morgan Lewis & Bockius
301 Grant Street
One Oxford Centre, Suite 3200
Pittsburgh, PA 15219
       Attorneys for Appellants

                        ____________

                 OPINION OF THE COURT
                      ____________


HARDIMAN, Circuit Judge.

        This case involves a dispute over retiree healthcare
benefits. Retired union member Ronald Cup and similarly
situated retirees requested—and the District Court ordered—
arbitration of the dispute under the Labor Management
Relations Act (LMRA), 29 U.S.C. § 185. Ampco Pittsburgh
Corporation, its subsidiary Akers National Roll Company, and
Akers’ health and welfare benefit plan (collectively, the
Company) filed this appeal, arguing that the District Court
erred when it ordered arbitration. The appeal raises important
questions of appellate jurisdiction and contract interpretation.




                               3
                               I

                              A

       Akers operated a manufacturing facility in Avonmore,
Pennsylvania. The Avonmore plant’s employees were union
members represented by the United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied Industrial and Service
Workers International Union, AFL-CIO/CLC, formerly known
as the United Steelworkers of America (USW). For many years
Akers and the USW engaged in a negotiation process that
culminated in a series of collective bargaining agreements, as
well as memoranda of agreement addressing the details of
various employment policies.

       In 2016, Akers was acquired by Ampco and a dispute
over healthcare benefits soon arose. At that time, former
Avonmore plant employees who had retired but were still
under the age of 65 (i.e., not yet eligible for Medicare) paid
$195 per month for their healthcare. But in July 2016, Ampco
announced its intention to eliminate this healthcare plan for
former Avonmore plant employees who had retired before
March 1, 2015. The new plan would require retirees to
purchase health insurance on the private market and then be
reimbursed up to $500 per month for individuals or $700 per
month for families. The affected retirees opposed this change
because “the monetary value of the monthly
reimbursement . . . is limited,” “the reimbursement is only
available for five years,” and the retirees would have to “shop
to purchase plans on the private market.” App. 28. They also
concluded that it violated a memorandum of agreement (MOA)
dated February 26, 2015, which provided that while “[a]ll
active employees [would] be transferred to the [Company’s]




                              4
new health plan. . . . [c]urrent retirees will remain on their
existing Plan ($195.00 monthly premium).” App. 95.

                               B

       Shortly thereafter, the USW sought recourse under the
collective bargaining agreement (CBA) in effect at the time. It
filed a grievance under Section 6 of the CBA, which applies
when “differences arise between the Company and the Union
or its members as to interpretation or application of, or
compliance with the [CBA’s] provisions.” App. 207–08.
Ampco rejected the grievance on the ground that the Union no
longer represented the retirees.

        The USW and Ronald Cup, who retired from the
Avonmore plant in 2014, sued the Company on behalf of Cup
and other similarly-situated workers who retired before March
1, 2015. As amended, their complaint contains three counts:
(I) a non-substantive claim compelling arbitration under § 301
of the LMRA, (II) a claim to enforce the CBA under § 301, and
(III) in the alternative, a claim under § 502(a) of the Employee
Retirement Income Security Act (ERISA), 29 U.S.C.
§ 1132(a). The USW and Cup (collectively referred to as the
Union) brought Counts II and III “solely in the event that the
Court determines that the Company is not obligated to arbitrate
the retiree health dispute.” App. 326.

        The Company moved under Federal Rule of Civil
Procedure 12(b)(6) to dismiss for failure to state a claim. The
Union responded by moving to compel arbitration, arguing that
Section 6, which permits the Union to “appeal[] . . . to
arbitration” an “unsatisfactory” Company grievance
determination, App. 208, applied to the parties’ dispute over
the retiree-healthcare provision of the MOA as well as to the




                               5
CBA itself. The District Court agreed and granted the motion
to compel in an order entered on June 13, 2017. Emphasizing
the “strong federal policy in favor of resolving labor disputes
through arbitration,” it found that the CBA’s “broad arbitration
provision . . . does not expressly narrow or limit the types of
disputes that the Parties intend to resolve through . . .
arbitration.” Cup v. Ampco-Pittsburgh Corp., 2017 WL
2559624, at *1–2 (W.D. Pa. June 13, 2017) (quoting Rite Aid
of Pa., Inc. v. United Food and Commercial Workers Union,
Local 1776, 595 F.3d 128, 131 (3d Cir. 2010)). Because the
language of Section 6 was capacious enough to encompass the
parties’ dispute, the dispute was presumptively arbitrable.

       Having ruled in the Union’s favor on the arbitration
count, the District Court did three other things in its June 13
order. First, it dismissed the two substantive counts without
ruling on their merits. Second, with the dispute apparently
headed for arbitration, it denied the Company’s motion to
dismiss as moot and announced its intention to order the parties
to mediation before the more formal arbitration, as stipulated.
Finally, the Court administratively closed the case. The
Company timely appealed.

       Meanwhile, the District Court took a number of
administrative actions related to the June 13 order. In another
order filed the next day, it referred the parties to mediation,
which was unsuccessful. The District Court later denied the
Company’s motion to stay discovery while this appeal was
pending, but this Court stayed enforcement of the arbitration
order pending the outcome of this appeal.




                               6
                                II

       The Company appeals the District Court’s order
granting the Union’s motion to compel arbitration, asserting
appellate jurisdiction under 28 U.S.C. § 1291 and the Federal
Arbitration Act, 9 U.S.C. § 16(a)(3). 1 As always, we must
determine whether we have jurisdiction to hear the Company’s
appeal, and our jurisdiction is not obvious in this case.

        We have jurisdiction over “final decisions of the district
courts.” See 28 U.S.C. §§ 1291–92. Similarly, the Federal
Arbitration Act provides for appeals of “final decision[s] with
respect to an arbitration.” 9 U.S.C. § 16(a)(3). Because finality
is the key to jurisdiction under both of these statutes, we must
determine whether the District Court’s order compelling
arbitration and administratively closing this case is final.

       The Union claims the District Court’s administrative
closure does not mean that its order compelling arbitration was
final and appealable. The Union is quite right on this point, as
we made clear in Penn West Associates, Inc. v. Cohen, 371
F.3d 118, 127–28 (3d Cir. 2004). But the order under review
here did more than close the case administratively; the District
Court also ordered arbitration and dismissed all of the other
claims without prejudice. These additional components
implicate our decision in Freeman v. Pittsburgh Glass Works,
LLC, 709 F.3d 240 (3d Cir. 2013), where we held that an
administrative closure was not an appealable final judgment
where the district court had ordered arbitration while the



       1
        The District Court had jurisdiction over this dispute
under 28 U.S.C. § 1331.




                                7
plaintiff’s employment discrimination claim was still pending.
Id. at 247.

       Unlike in Freeman, where the plaintiff’s substantive
claim remained pending despite the arbitration order, the
District Court here granted the relief the Union sought in
Count I (compelled arbitration) and dismissed its substantive
claims in Counts II and III, “end[ing] the litigation on the
merits and leav[ing] nothing more for the court to do but
execute the judgment.” See Green Tree Fin. Corp.-Ala. v.
Randolph, 531 U.S. 79, 86 (2000) (citations omitted). The
District Court thus “disposed of the entire case . . . and left no
part of it pending.” See id. This is true even though the
dismissal was without prejudice. Because there was “‘nothing
more for the court to do but execute the judgment,’ the District
Court’s order falls within the Supreme Court’s definition of an
appealable final order.” Blair v. Scott Specialty Gases, 283
F.3d 595, 602 (3d Cir. 2002) (quoting Green Tree, 531 U.S. at
86) (order dismissing case without prejudice where all claims
were arbitrable was final and immediately appealable).

        Our conclusion that the District Court’s order is final
and appealable was presaged by our decision in Penn West,
where we made clear that an administrative-closure order “was
not a final, appealable order absent a separate document to
signal the court’s ‘view that the case had concluded.’” 371 F.3d
at 127–28 (quoting Lehman v. Revolution Portfolio LLC, 166
F.3d 389, 392 (1st Cir. 1999)). In this case, the District Court’s
dismissal of both substantive counts is about as strong a
“signal” as we can envision, and its order sending the parties
to mediation does not call it into question. The parties had
stipulated to the mediation earlier in the litigation, and their
participation in it—no matter what the outcome—still “le[ft]
nothing more for the [District C]ourt to do.” See Green Tree,




                                8
531 U.S. at 86. As far as the District Court was concerned, the
case was over.

        For the reasons stated, we hold that the order compelling
arbitration is final for purposes of 28 U.S.C. § 1291 and the
Federal Arbitration Act.

                                III

       Having determined that we have jurisdiction to hear this
appeal, we turn to the arbitration order itself. The parties agree
that their dispute is arbitrable if it is properly characterized as
a “difference[] . . . between the Company and the Union or its
members as to interpretation or application of, or compliance
with the provisions of [the CBA].” See App. 207–08 (CBA
Section 6). But the Company argues that this dispute is not
subject to arbitration under Section 6, because retiree health
benefits are not covered by the CBA. We agree.

                                A

       Because CBAs must be interpreted “according to
ordinary principles of contract law,” M&G Polymers USA,
LLC v. Tackett, 135 S. Ct. 926, 933 (2015), we ascertain
whether the CBA provides for retiree health benefits by
studying its language. According to the Union, the key
provision is found in Section 19, “Other Plans,” which
provides that the employees subject to the CBA are covered by
various benefit “Plans,” which include “Medical Insurance.”
App. 236.

       The     Union  mischaracterizes  Section 19  as
“identif[ying] Company benefits plans enjoyed by both
employees and retirees.” Union Br. 15 (emphasis added).




                                9
Contrary to the quoted statement, the CBA states that it applies
only to “employees”—a term defined elsewhere to include
“production and maintenance employees at the Company’s
Avonmore plant as of the date of this Agreement and
thereafter.” App. 205 (emphasis added). So former employees
like Cup, who retired before the CBA went into effect on
March 1, 2015, are not “employees” under the CBA.

                               B

       The Union’s fallback position is that even if retirees are
not among the “employees” to whom Section 19 expressly
applies, Section 19 implicitly incorporates the MOA, which
does discuss retiree health benefits. In relevant part, the MOA
provides that while “[a]ll active employees wi[ll] be
transferred to [a] new health plan . . . [c]urrent retirees will
remain on their existing Plan ($195.00 monthly premium).”
App. 95. The Union contends that this section is implicitly tied
to Section 19, which refers to “Medical Insurance.” See
App. 236. Persuaded by this argument, the District Court
concluded that the dispute was within the ambit of the CBA
(and, by extension, Section 6’s arbitration procedure) because
the CBA “expressly includes ‘Medical Insurance’ as an
included ‘Other Plan.’” Cup, 2017 WL 2559624, at *2 (quoting
CBA Sections 6 and 19). We cannot agree that the words
“Medical Insurance” supply the missing link between the
MOA and the CBA.

        Even assuming Section 19’s reference to “Medical
Insurance” includes retiree health benefits as well as the “new
health plan” for current employees, see App. 95, this single
mention is insufficient to incorporate the MOA on the subject
of retiree healthcare into the CBA. Our conclusion is consistent
with United Steelworkers of America v. Rohm & Haas Co., 522




                               10
F.3d 324 (3d Cir. 2008), which involved a challenge by a group
of manufacturing workers and their union to a denial of
disability benefits. Id. at 327, 334. The union in that case
argued that a collective bargaining provision similar to
Section 6 here mandated arbitration because “disability
benefits are generally provided for under the . . . CBA,” which
contained one reference to a “Sickness and Accident plan.” Id.
at 334. We rejected this argument, as “the mere reference to
the ‘Sickness and Accident plan’ without more d[id] not
incorporate the entire Plan into the . . . CBA.” Id. (citing RCA
Corp. v. Local 241, Int’l Fed’n of Prof’l and Tech. Eng’rs, 700
F.2d 921, 927 (3d Cir. 1983)). Under those circumstances, the
CBA was not so ambiguous as to be “reasonably interpreted to
provide for disability benefits or to provide for arbitrating a
plan administrator’s denial of such benefits arising from a
separate ERISA plan.” Id.; cf. Rosenblum v. Travelbyus.com
Ltd., 299 F.3d 657, 665–66 (7th Cir. 2002) (no incorporation
where one agreement “identifie[d]” another but “d[id] not
incorporate its terms”). So too here.

       The Union tries to distinguish Rohm & Haas on the
ground that the disability plan in that case, unlike the
healthcare plan at issue here, “contained its own dispute-
resolution procedures.” Union Br. 53. This, it contends, is
“potent evidence” that the parties in Rohm & Haas “did not
intend that disagreements arising under that plan be resolved
by the CBA’s arbitration procedure.” Id. This argument is
logical, but the existence of the healthcare plan’s dispute-
resolution procedures was not part of our analysis in Rohm &
Haas.

       Perhaps for that reason, the Union bases its argument
not on Rohm & Haas but on our decision in RCA Corp. v. Local
241, International Federation of Professional and Technical




                              11
Engineers. Like the retiree health plan under discussion here,
the retirement plan at issue in RCA “fail[ed] to provide an
independent basis for mandatory arbitration.” 700 F.2d at 927.
But that does not help the Union’s cause, because we declined
to require arbitration of the dispute in RCA. Id. There, the CBA
“expressly provide[d] for arbitration and mention[ed] the
Retirement Plan” but contained “no provision . . . that either
brings or seeks to bring the Retirement Plan within the ambit
of the General Agreement.” Id. For this reason, we concluded
that “mere[ly] mentioning . . . the Retirement Plan in the
General Agreement [wa]s insufficient reason to construe the
Retirement Plan as part and parcel of the General Agreement.”
Id.

       The same is true of the CBA and MOA in this case.
Despite the Union’s arguments to the contrary, Section 19 of
the CBA does not incorporate the MOA because “[m]ere
reference to another contract or document is not sufficient to
incorporate its terms into a contract. There must be an express
intent to incorporate, and there is no such expression here.”
Rosenblum, 299 F.3d at 666.

        If anything, the CBA suggests an intent not to
incorporate the MOA, as language expressly incorporating
other agreements can be found elsewhere in the CBA.
Section 9-E(6), for example, declares that “[t]he Absentee
Control Program and the Tardy/Short Shift Programs . . . are
incorporated in this contract as a [sic] separate memoranda.”
App. 214. This section makes clear that the parties to the CBA
knew how to incorporate other agreements into the CBA, so
it’s telling that they chose not to use the same language in
Section 19.




                              12
       With the benefit of hindsight, the Union now tries to
reverse-engineer the requisite intent to incorporate, arguing
that “[o]ver the years, the parties [have] repeatedly used the
CBA grievance and arbitration procedures to resolve their
disputes about benefits identified in the CBA’s ‘Other Plans’
section, including disputes regarding retiree benefits.” Union
Br. 9. But “extrinsic evidence of ‘past practice’ [may] be
admitted, if at all, only to resolve an ambiguity in the CBA,”
Quick v. NLRB, 245 F.3d 231, 247–48 (3d Cir. 2001), and
“should not be used to add terms to a contract that is plausibly
complete without them,” U.A.W. Local 1697 v. Skinner Engine
Co., 188 F.3d 130, 146 (3d Cir. 1999) (quoting Bidlack v.
Wheelabrator Corp., 993 F.2d 603, 608 (7th Cir. 1993) (en
banc)). We agree with the Company that the CBA does not
present us with “either contractual language on which to hang
the label of ambiguous or some yawning void . . . that cries out
for an implied term.” Id. (alteration in original) (quoting
Bidlack, 993 F.2d at 608). The parties chose not to include
language incorporating the MOA, so we cannot incorporate it
for them.

       Our conclusion that the CBA does not incorporate the
MOA has an additional consequence: the Union cannot invoke
the presumption of arbitrability to salvage its position. Where
the presumption applies, a court may not deny a motion to
compel arbitration “unless it may be said with positive
assurance that the [contract’s] arbitration clause is not
susceptible of an interpretation that covers the asserted
dispute.” AT&T Techs., Inc. v. Commc’ns Workers of Am., 475
U.S. 643, 650 (1986); see also Local 827, Int’l Bhd. of Elec.
Workers v. Verizon N.J., Inc., 458 F.3d 305, 311 (3d Cir. 2006)
(presumption applies where arbitration clause “is clearly broad
or ambiguous”). But this presupposes that the contract in




                              13
question contains an arbitration clause in the first place. See
AT&T Techs., 475 U.S. at 650. Here, the CBA indisputably has
an arbitration clause in Section 6, but the MOA—the contract
under which this dispute actually arises—does not. And where
there is no arbitration clause, the presumption does not apply.
See id.

        Because the parties’ dispute over retiree medical
benefits is not subject to Section 6 of the CBA, it is not
arbitrable. As the Company correctly points out, “there is no
provision in the CBA regarding retiree medical benefits,” and
the MOA does not provide for arbitration. Company Br. 10.
Nor did the CBA include retirees in its definition of
“employees” or incorporate the MOA’s provisions regarding
retiree health benefits. The District Court therefore erred when
it granted the Union’s motion to compel arbitration. The Union
may, of course, pursue its substantive claims in Counts II and
III on remand.

                        *      *      *

       The collective bargaining agreement at issue in this
appeal does not address retirees, whose health benefits are
discussed in a memorandum of agreement that was never
incorporated into the CBA. We cannot know whether this
result was intentional or inadvertent, but we must enforce the
contracts as written. Accordingly, we will reverse and remand.




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