                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                        March 6, 2007

                                                                Charles R. Fulbruge III
                                                                        Clerk
                                No. 05-30813



RESOLUTION PERFORMANCE PRODUCTS, LLC,

                                          Plaintiff-Appellee,

versus

PAPER ALLIED INDUSTRIAL CHEMICAL AND ENERGY WORKERS INTERNATIONAL
UNION, PACE LOCAL 4-1201 F/K/A NORCO CHEMICAL WORKERS UNION,

                                          Defendants-Appellants.

                         ______________________

            Appeal from the United States District Court
                for the Eastern District of Louisiana
                         USDC No. 2:04-CV-2324
                        ______________________

Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

     As part of RPP’s purchase of a subsidiary of Shell Oil

Company, RPP signed a collective bargaining agreement with the

Union, which had had a longstanding relationship with Shell. After

the purchase, RPP used only subcontractors, not Union members, for

maintenance work, contrary to Shell’s past practice.                 The Union

complained that RPP should hire Union members for maintenance work,

as Shell had in the past.         The arbitrator agreed.        The federal

district court vacated the award.         We reverse and remand.

                                      I

     From   at   least   1950   to   2000,   Shell   Oil   Company    owned    a
subsidiary named Shell Epoxy Resins.               During that time, Shell and

the Norco Chemical Workers Union, later the Paper Allied Industrial

Chemical and Energy Workers International Union,1 had a collective

bargaining       agreement      covering       both     production    workers       and

maintenance workers.          Over that fifty-year span, the understanding

captured    in    the   CBA    was   enriched     by     bargaining       and   several

arbitrations.

     In    2000,    Shell     sold   the   resin       subsidiary    to    Resolution

Performance Products, now Hexion Chemical Company.                        In the sale

agreements, RPP agreed to recognize the Union and adopt the CBA

with all past letters of agreement.                   RPP did so, adopting a CBA

identical in all relevant respects to the Shell-Union CBA.                      The CBA

stated, in pertinent part and italicized for importance:

                                     Preamble

     . . . . The Company hereby recognizes the Union as the
     exclusive bargaining representative of the following
     collective bargaining unit...[including both production
     and maintenance workers.]

     This Agreement constitutes the entire agreement between
     the parties, and it is agreed that no prior understanding
     or agreement shall hereafter be operative unless it was
     reduced to writing and is not in conflict or inconsistent
     with the terms hereof.

            Article III — Classification of Employees
     1. Craftsmen [maintenance workers]
     . . .
     (D) Nothing herein shall require the Company to adjust or




     1
         PACE subsumed NCWU in 2001, succeeding it in all respects.

                                           2
      maintain any given number of craftsmen in any craft.2

               Article XIV — Contractors Rates of Pay
      Section 1 - Contractor Performing Work within the Plant
      Whenever a contractor or subcontractor performs work
      within the Plant which could be performed by employees
      covered by this Agreement, the Company will include a
      provision in the applicable contract requiring the
      contractor and subcontractor to pay not less than the
      rates of pay provided in this Agreement for the same
      character of work; provided, however, that the foregoing
      shall not apply if there is an agreement as to rates
      between the contractor or subcontractor and his employees
      reached through collective bargaining . . . . 3

      Section 2 - Demotions or Layoffs
      RPP’s obligations under Section 1 will apply only for the
      period of time when,
      (A) an employee is demoted or displaced from any
      department or craft listed in Exhibit “A” of the
      Agreement through no fault of his/her own, whereupon
      Section 1 will apply on a one-for-one basis to any
      contractor performing work at the Norco Plant, or
      (b) an employee is laid off due to a reduction in force.
      However, RPP’s obligations under Section 1 will continue
      to apply to any contracted work normally performed by
      Operators.

      After the sale, some production workers transferred to RPP,

but no maintenance workers transferred.4           During the first year of


      2
        There is no comparable provision under the section governing production
workers.
      3
        Neither party discusses whether RPP is paying the subcontractors
according to these compensation guidelines. See infra note 4 and accompanying
text (discussing how RPP now uses only subcontractors for maintenance).
      4
        According to RPP, Shell and RPP had agreed as part of the deal that Shell
would identify before the sale any openings for maintenance workers in the new
resin company (how Shell would know this is unclear) or maintenance workers
eligible to transfer, but it identified no such openings or workers through its
“posting” system.    The record on appeal lacks this agreement, although the
arbitrator found that, “[a]pparently, Shell wished to retain all of its
[maintenance workers]” and “the [maintenance workers] wished to continue to be
employed [by Shell].” RPP also alleges that Shell and the Union refused to
release maintenance workers for whom RPP had offered jobs; although it cites only
briefs, not record evidence, for this allegation, it is consistent with the
arbitrator’s findings.

                                       3
RPP’s     control     of   the   business,     all   maintenance      workers       were

subcontractors, either employees of various firms, including KBR,

or Shell employees subcontracted to RPP under the Interim Labor

Services Agreement.5           At the end of that year, RPP stopped using

Shell’s workers, who were parties to a Shell-Union CBA; and instead

of hiring Union workers, it used as maintenance workers, as it

still does, only subcontractors from firms other than Shell,

primarily KBR.

      The Union asserted in a grievance in 2001 that RPP improperly

used subcontractors instead of union workers for maintenance.                        RPP

responded that it would not recognize the grievance because, among

other things, it was not timely, the CBA did not require it to

employ      any    maintenance    workers,     RPP   had     never    employed      any

maintenance workers and thus could not have subcontracted out the

work to the Union’s detriment, and Shell maintenance employees had

rejected employment with RPP, forcing the company to subcontract

out   the    work.         Arbitration   followed,     and    in     July    2004    the

arbitrator concluded that the grievance was timely and that RPP

violated the CBA by subcontracting out all the maintenance work.

      The         arbitrator     began    by     acknowledging         the     unique

circumstances: while RPP had never employed any Union workers for

maintenance, Shell had for fifty years.                She then concluded that



      5
        Shell was a subcontractor because, under the interim services agreement,
it retained the right to control its employees, including the right to control
hours of work and delegation of assignments.

                                          4
RPP, by assuming the obligations of the CBA and all past letters of

agreement, “logically...accepted” the “rich bargaining history” and

“past arbitral interpretations of its obligations under the CBA.”

Hence, she concluded, “the issue should be resolved in the same

manner as any other contracting out grievance” — analyzing the text

of the CBA and prior arbitral interpretations of that text.

       First, she noted that the CBA addressed subcontracting only in

Article XIV, which prescribed subcontractor pay.                      She then stated,

“It is generally accepted that a CBA...which is silent about

subcontracting...does not give Management the unfettered right to

subcontract.”       She did not mention the applicability of Article

III,   which   grants       RPP   the   right      to     determine    the   number    of

maintenance workers, or discuss the “recognition clause” in the

preamble, which the Union argues on appeal is a limitation on the

right to subcontract, stating only that the CBA is silent as to

RPP’s right to subcontract.

       Turning then to past arbitral interpretations to inform that

silence,     the   arbitrator      analyzed        four    prior    matters,   quoting

passages     showing    a    desire     to       protect    the    integrity   of     the

bargaining unit:

       [Even when subcontracting,] the Company is still
       obligated to act reasonably and in good faith in such
       matters, so as not to subvert the labor agreement or to
       seriously damage the bargaining unit....

       ...

       Arbitrators   are   hesitant   to   permit   wholesale
       subcontracting even where the labor contract is silent

                                             5
     regarding such restrictions, if the subcontracting act
     would significantly undermine the integrity of the
     bargaining unit or its members rights.

     ...

     [T]he fact that the grievance may create a scheduling
     difficulty or cost a bit more, does not change the fact
     that this is bargaining unit work and, as such, cannot be
     assigned to [ ] contract workers.

     ...

     [Where Shell filled one position with an outside
     subcontractor,] Shell’s decision . . . had absolutely no
     impact on the scope or integrity of the bargaining unit.

The arbitrator distinguished the instant case from the fourth

arbitration, which arose when the last Union member serving as an

insulator retired and Shell hired for the waning position one

subcontractor, instead of a Union member.      She noted that the

current case is about the entire maintenance unit, not just one

position, and that there is plenty of maintenance work for the unit

here, unlike the prior arbitration where there was not even one

daily full-time job for an insulator.       She observed that the

arbitrator in the prior arbitration sensibly read the CBA not to

force Shell to maintain obsolete positions.

     The arbitrator here found the lesson from past arbitrations

clear:     though the company has some latitude to subcontract, it

cannot do so if subcontracting would significantly undermine the

integrity of the bargaining unit.    Because RPP did not employ any

bargaining unit maintenance employees but instead subcontracted out

all the maintenance work, the arbitrator concluded that RPP had


                                 6
undermined the integrity of the bargaining unit.

     Finally, as the remedy, the arbitrator ordered that

     the Company shall employ maintenance craft employees in
     numbers comparable to that of the Epoxy Resins Department
     when it was owned by Shell. Bargaining unit maintenance
     employees shall be responsible for routine maintenance of
     the plant. The Company may allocate work in the manner
     comparable to Shell’s practices relating to employment
     and contracting out, before the sale.

     RPP filed suit in federal district court, seeking vacatur of

the award, and both parties moved for summary judgment.                      The

district court granted RPP’s motion.           Although the court deferred

to the arbitrator’s conclusion that the grievance was timely, it

concluded that the arbitrator erred by considering past practice

where the CBA stated it was the entire agreement between the

parties and erred under Beaird Industries, Inc. v. Local Union 2297

International Union,6 which directs vacatur where the arbitrator

acts contrary to an express provision of the CBA, because Article

III of the CBA unambiguously did not require RPP to maintain a

fixed number of maintenance workers.           The Union appealed.

                                       II

     We review the district court’s grant of summary judgment de

novo.7    Judicial review of arbitration decisions arising from the

terms of a CBA is “narrowly limited,” and courts should afford




     6
         404 F.3d 942, 944 (5th Cir. 2005).
     7
         Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 762 (5th Cir. 2001).

                                        7
“great      deference”    to   arbitration     awards.8      “As   long   as   the

arbitrator’s       decision    ‘draws    its   essence    from   the   collective

bargaining agreement’ and the arbitrator is not fashioning ‘his own

brand of industrial justice,’ the award cannot be set aside.”9

Additionally, “a court must affirm an arbitral award ‘as long as

the arbitrator is even arguably construing or applying the contract

and acting within the scope of his authority.’”10                  Even where a

court would have interpreted the contract differently, a court must

still affirm the award.11             However, under Beaird, an arbitrator

lacks authority to render a decision contrary to an unambiguous

provision of the CBA.12

                                         III

      The Union argues that the award drew its essence from the CBA

because the CBA does not unambiguously permit RPP to subcontract,

especially in the face of the preamble’s “recognition clause,”

which recognizes the Union as the exclusive bargaining agent for


      8
           Beaird, 404 F.3d at 944.
      9
        Weber Aircraft Inc. v. Gen. Warehousemen & Helpers Union Local 767, 253
F.3d 821, 824 (quoting United Paperworkers Int'l Union v. Misco, Inc., 484 U.S.
29, 38 (1987)).
      10
           Beaird, 404 F.3d at 944 (quoting Misco, 484 U.S. at 38).

      11
           Id.
      12
        Id. at 946–47. See also Houston Lighting & Power Co. v. Int’l Bhd. of
Elec. Workers, Local Union No. 66, 71 F.3d 179, 182 (5th Cir. 1995) (“The ‘rule
in this circuit, and the emerging trend among other courts of appeals, is that
arbitral action contrary to express contractual provisions will not be
respected.’”) (quoting Delta Queen Steamboat Co. v. Dist. 2 Marine Eng’rs
Beneficial Ass’n, 889 F.2d 599, 604 (5th Cir. 1989)).

                                          8
the class of maintenance workers.              For this proposition it cites

three cases, which it also contends are more relevant than Beaird.

     In Folger Coffee Co. v. Int’l Union,13 the arbitrator sustained

the union’s challenge to the company’s use of subcontractors,

concluding that, despite language in the CBA permitting the company

to subcontract, the right to subcontract was not absolute.                 In so

concluding, the arbitrator relied in part on the past practice of

union members performing the work of subcontractors and in part on

a CBA provision stating that the CBA’s purpose was to strengthen

the parties’ relationship.          This court affirmed, concluding that

reliance on past practice was permissible where the agreement was

silent or      insufficient    to   enable      the   arbitrator   to   render a

decision and that the arbitrator’s interpretation of the “purpose”

clause as a limitation on the right to subcontract was reasonable

because,     unless    the   agreement        contained   an   explicit   clause

entitling the company to subcontract regardless of the effect on

the bargaining unit, subcontracting should be balanced against the

rights of the union.

     In National Gypsum Co. v. Oil, Chemical, and Atomic Workers

International Union,14 the arbitrator concluded that, although the

CBA included a management rights clause permitting the company to

“schedule and reschedule employees as required by the business


     13
          905 F.2d 108 (5th Cir. 1990).
     14
          147 F.3d 399 (5th Cir. 1998).

                                          9
needs” of the company, the company had to bargain before reducing

the work week from seven to six days.             The arbitrator reasoned in

part that the recognition clause recognized the Union as the

exclusive bargaining agent.             In so concluding, the arbitrator

relied    in    part   on    past   practice,   even   though   the   agreement

explicitly stated that it constituted the “full scope” of the

agreement between the parties.              This court affirmed, concluding

that the arbitrator, whose province it was to resolve conflict

between CBA provisions, had made a reasonable interpretation; it

evinced concern about the use of past practice given the “full

scope” clause, but because the decision was otherwise grounded in

the CBA, the inquiry into past practice was not “fatal.”

     In NCR Corp. v. International Association of Machinists and

Aerospace Workers,15 the arbitrator interpreted the recognition

clause as a limitation on the management’s right-to-subcontract

clause in sustaining the union’s challenge to the company’s use of

subcontractors.        In so concluding, the arbitrator also looked to

past practice.         The Tenth Circuit reversed the district court’s

vacatur,       emphasizing    the   deferential    standard     of   review   and

affirming the use of past practice.

     In Beaird, the arbitrator sustained the union’s grievance

challenging company subcontracting. The district court vacated the

award.     This court affirmed, determining that the CBA provision


     15
          906 F.2d 1499 (10th Cir. 1990).

                                        10
defining    the    company’s     right     to      subcontract      was   unambiguous:

“‘[T]he Company has and retains and the Union recognizes the sole

and exclusive right of the Company to exercise all the rights or

functions     of   management      .   .     .    [including]       the   decision   to

subcontract out work . . . . ’”                   We concluded that, because no

other provision of the CBA limited this right, the arbitrator

failed to draw his conclusion from the essence of the agreement by

acting contrary to an express CBA provision.16                      We distinguished

Folger on the ground that the CBA in Beaird was explicit in

permitting      subcontracting         and        contained    no     limitation      on

subcontracting; we also called Folger’s holding the “outer limits”

of deference to arbitral awards.

     The Union claims that Beaird is not on point because the

Union’s CBA does not contain an unambiguous “management rights”

clause reserving to RPP the right to subcontract, and because its

CBA contains a recognition clause recognizing the Union as the

exclusive bargaining agent for the maintenance workers.

     RPP counters that Article III unambiguously allows it not to

maintain     maintenance        workers,         conflicting     head-on    with     the

arbitrator’s award that RPP “shall employ maintenance [workers] in

numbers comparable to that of the [] Department when it was owned

by Shell....”      It also contends that the arbitrator pointed to no

CBA provision which RPP violated.


     16
          404 F.3d at 944-47.

                                           11
       We conclude that the arbitrator’s award “drew its essence”

from the CBA.         First, we put aside one area of contention.            There

is a powerful argument that RPP, by explicitly assuming the Shell-

Union CBA and all prior letters of agreement, assumed the prior

arbitral interpretations of the CBA. The argument is that those

interpretations did more than fill interstices and provide needed

gloss       to   unclear   provisions,     the   results     of   which    must   be

controlling now; they also framed the background against which the

parties understood the terms of negotiation. RPP contends that the

arbitral history is irrelevant.

       The arbitrator here did consider past interpretations, but

only        after   concluding     that   the    CBA   was     ambiguous    as    to

subcontracting. If the CBA did not unambiguously confer a right to

subcontract,        then    the   arbitrator’s    task   was      to   construe   an

ambiguous CBA, and mere disagreement with the performance of that

task is not alone a basis for vacating the award.17                Relatedly, the

role the past arbitral decisions played is not wholly clear.                      At

one point, after finding the CBA ambiguous, the arbitrator appeared

to construe the CBA de novo, without reference to any prior

arbitration: “It is generally accepted that a CBA...which is silent

about subcontracting...does not give Management the unfettered

right to subcontract.”             That is, she seemingly decided how to




       17
             Beaird, 404 F.3d at 944 (quoting Misco, 484 U.S. at 38).

                                          12
construe this CBA as a matter of first impression.18              Regardless,

the question for us is whether the CBA unambiguously gave RPP the

right to subcontract.       We conclude that it did not.

      That the CBA did not unambiguously give RPP the right to

subcontract is apparent.        At the very least, that conclusion is

defensible and, therefore, we must defer to it.            Most importantly,

the CBA is silent as to RPP’s right to subcontract,19 and the CBA

recognizes the Union as the representative of maintenance workers,

suggesting that RPP cannot subcontract all maintenance work.20

There was no recognition clause in Beaird, and the CBA there

included   a   “management    rights”      clause   expressly   reserving    to

management the right to subcontract, absent here.                  Our result

accords with Folger Coffee Co. v. International Union, where the

      18
         Her use of the term “generally accepted” suggests reliance on prior
legal interpretations of similar contracts, but that is different from reliance
on precedential interpretations of the CBA at issue. After all, all judges when
interpreting contracts, even in the first instance, use rules and maxims derived
from other cases.
      19
        Subcontracting is mentioned once, but only in the section requiring any
subcontractors to be paid at certain rates.
      20
         In NCR Corp., 906 F.2d at 1505-06, the Tenth Circuit construed a
recognition clause as a limitation on an express right-to-subcontract clause.
This goes even further than we do since the CBA here contains no express right-
to-subcontract clause.
      At oral argument, RPP contended that we cannot rely on the recognition
clause because the arbitrator did not rely on it in her analysis. This mistakes
the nature of our review of arbitral awards, which we review in toto only to
determine whether they draw their “essence” from the CBA. After all, arbitrators
need not, and sometimes do not, attach any reasoning to their awards, and we do
not by virtue of that fact vacate such awards. See Sarofim v. Trust Company of
the West, 440 F.3d 213, 218 (5th Cir. 2006). Moreover, we can affirm a federal
district court’s judgment on grounds presented by the parties but not relied on
by the court, see Brown v. Nationsbank Corp., 188 F.3d 579, 586 (5th Cir. 1999);
certainly our review of arbitral awards is no less deferential. In short, we can
and should uphold an award on any reasonable ground. See Brabham v. A.G. Edwards
& Sons, Inc., 376 F.3d 377, 385 (5th Cir. 2004).

                                      13
CBA explicitly gave management the right to subcontract, absent

here, but that clause was contradicted by others.21            In sum, the CBA

here did not speak in unambiguous terms about subcontracting.

Because the CBA was ambiguous about RPP’s right to subcontract, we

must defer to the arbitrator’s interpretation, which draws its

essence from the CBA, that the CBA does not permit wholesale

subcontracting.22

      RPP’s best argument, that advanced by the district court, is

that Article III unambiguously gives RPP a right to subcontract by

stating that RPP has no obligation to maintain any specific number

of maintenance workers.        Article III, of course, makes no mention

of subcontracting.      Rather, both RPP and the district court focus

on the wording in the arbitrator’s award that “the Company shall

employ maintenance...employees in numbers comparable to that of the

Epoxy Resins Department when it was owned by Shell.”               Just one or

two pages before that statement, however, the arbitrator stated

that “the CBA cannot mandate that a job classification remain

filled if     there   is   inadequate    work”   due   to    modernization,    a

changing market,      or   similar    business    reasons.      That   is,   she



      21
         905 F.2d at 109. Beaird distinguished Folger precisely because the CBA
in Beaird had the explicit management rights clause and no contradictory clauses,
again highlighting the lack of such an explicit clause here. 404 F.3d at 945-46.
      22
         Contrary to RPP’s assertion, the arbitrator need not have pointed to a
specific, explicit CBA provision that RPP violated. The CBA was ambiguous about
subcontracting; the arbitrator reasonably interpreted that ambiguity to preclude
wholesale subcontracting, thus RPP violated the CBA. Our holdings in Folger and
Beaird, and traditional principles of contract interpretation, do not require
violation of a specific, explicit provision.

                                       14
acknowledged that the CBA does not mandate that RPP maintain

positions it wants to eliminate, as the Union conceded at oral

argument.23     Reading the “award” as not just the final section

entitled “award” but rather the entire document,24 we see ambiguity

in the award stemming from these two statements.             Put another way,

with this dispute, drawn as it is over the right of RPP to

subcontract,     we    do   not    read     the   arbitrator’s      remedy    as

unambiguously imposing the obligation to engage unneeded workers.

That reading is defied by the circumstance that the issue in

dispute is subcontracting or not, as the arbitrator herself made

clear in dispensing with the idea that RPP would have to employ a

certain number of workers.        The critical element in the remedy is

the obligation to “employ,” that is “not subcontract,” not the

phrase “in numbers comparable.” In context, it is not unreasonable

to read the award as ordering that to the extent that RPP chooses

to use routine maintenance workers, it must meet that need as its

predecessor did by employing Union workers, not by wholesale




      23
         Again, we need not decide the appropriate precedential effect of prior
arbitral decisions.    In addressing the prior arbitrations, the arbitrator
confirmed her own view that the company cannot be made to retain a certain number
of positions in the face of certain circumstances: “As Arbitrator Fox correctly
observed, the CBA cannot mandate....” The relevant point is that the conflict
arises from her own statements, the precedential force of prior arbitrations
aside.
      24
         See, e.g., Cannelton Indus., Inc. v. Dist. 17, United Mine Workers of
Am., 951 F.2d 591, 594 (4th Cir. 1991) (explaining that courts sometimes look to
an arbitrator’s reasoning in determining whether the award draws its essence from
the CBA).

                                       15
subcontracting.25

      In sum, the CBA did not clearly allow RPP to subcontract out

the maintenance work.        The arbitrator resolved the dispute over

this uncertainty by precluding subcontracting, a resolution we

cannot fault, footed as it is in the terms of the contract.

                                       IV

      RPP presses an alternative ground for affirmance,26 that the

arbitrator, whose action on this point was affirmed by the district

court, improperly found the grievance arbitrable.                   Namely, RPP

contends that the arbitrator ignored the plain language of the CBA

requiring the party requesting arbitration, the Union, to apply for

a   panel    of   arbitrators     within     thirty    days    of    requesting

arbitration.27

      Although the Union waited more than thirty days to apply for

a panel of arbitrators, the district court explained that

      [t]he arbitrator found the matter arbitrable after
      reviewing correspondence between the parties’ counsel
      regarding the original grievances and the Union’s desire
      to proceed to arbitration....The Arbitrator...concluded


      25
         RPP suggested at oral argument that maintenance workers might become
obsolete. About that we say only that RPP is not obligated to use any workers
to do maintenance.
      26
         The Union incorrectly argues that RPP has forfeited this issue by
failing to cross-appeal it. We may affirm a lower court’s grant of summary
judgment on a ground not relied upon (or rejected) by that court as long as the
movant below asserted the ground, see Black v. North Panola School District, 461
F.3d 584, 593 (5th Cir. 2006); hence before us now is the propriety of the entire
order of summary judgment.
      27
        RPP also argued in front of the arbitrator and the district court that
the underlying grievances were not timely filed, but it abandons this argument
on appeal.

                                       16
      the delay in proceeding to arbitration was a result of
      RPP counsel’s failure to correspond with the Union in a
      timely fashion.28

On   appeal,        RPP   argues    that   the     arbitrator’s       focus    on    the

correspondence improperly contradicts the plain meaning of the CBA.

In other words, RPP contends that the Union should have requested

a panel within thirty days, regardless of any dilatory tactics or

obstruction, intentional or not, on RPP’s part.

      We are unwilling to say that the arbitrator’s conclusion did

not “draw[] its essence from the collective bargaining agreement”

and that the arbitrator was not “even arguably construing or

applying      the    contract      and   acting    within     the    scope    of   h[er]

authority.”29         The CBA’s prescribed arbitration procedures are

necessarily         somewhat    flexible,         and   the    CBA     sustains     the

interpretation that a party cannot obstruct the procedures and then

benefit from that obstruction.               And we do not second-guess the

arbitrator’s factual finding that RPP’s counsel’s correspondence

led to the delay.

      We REVERSE the district court’s judgment and REMAND for

proceedings consistent with this opinion.




      28
        The arbitrator also concluded that the CBA, by stating that the party
seeking arbitration “may” apply for a panel of arbitrators within thirty days,
did not require the Union to act within thirty days. We do not address this
issue.

      29
           Misco, 484 U.S. at 38.

                                           17
