USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-2344
BOSTON AND MAINE CORPORATION,
Plaintiff - Appellant,
v.
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES,
Defendant - Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Cummings* and Cyr, Circuit Judges. ______________
_____________________
David A. Handzo, with whom Daniel F. Driscoll, Smith, _________________ ____________________ ______
Elliott, Smith and Garmey, John H. Broadley, Andrew J. McLaughlin _________________________ ________________ ____________________
and Jenner & Block were on brief for appellant. ______________
Richard S. Edelman, with whom John O'B. Clarke, Jr., Donald __________________ ______________________ ______
F. Griffin, Melissa B. Kirgis and Highsaw, Mahoney & Clarke, P.C. __________ _________________ _______________________________
were on brief for appellee.
____________________
August 30, 1996
____________________
____________________
* Of the Seventh Circuit, sitting by designation.
TORRUELLA, Chief Judge. Plaintiff-Appellant Boston & TORRUELLA, Chief Judge. ___________
Maine Corporation (the "B&M") challenges the district court's
denial of its motion for summary judgment and concurrent grant of
summary judgment for Defendant-Appellee Brotherhood of
Maintenance of Way Employees (the "BMWE"). The B&M had
challenged the enforcement of certain of Public Law Board 4469's
awards to the BMWE-affiliated claimants. The BMWE sought
enforcement of the same awards, which the district court granted.
We affirm the judgment of the district court.
BACKGROUND BACKGROUND __________
In March 1986, the BMWE-member employees exercised
their right to self-help in a dispute with two carriers, the
Maine Central Railroad Company (the "MEC") and the Portland
Terminal (the "PT"). The MEC's and the PT's BMWE-represented
employees asked the employees of the B&M to withhold their labor
from the B&M to assist them in resolving their dispute. In April
1986, the B&M issued notices that jobs left vacant by sympathetic
strikers would be permanently abolished, including the jobs left
vacant by the claimants. On April 19, 1986, the B&M directed the
striking employees to return to work by April 25, 1986, or their
positions would be filled by permanent replacements. The
claimants did not return to work that April.
When the BMWE's strike against the MEC was halted on
May 16, 1986, the claimants attempted to return to work. When
they tried to return to work, they were informed that they were
not entitled to return to work because they had forfeited their
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seniority by not complying with Rule 13 of the collective
bargaining agreement ("the CBA"), which required that
"[e]mployees laid off by reason of force reduction, desiring to
retain their seniority rights, must, within ten (10) days from
[the] date laid off, file their name and address, in writing, in
triplicate, with their immediate supervising officer." The
claimants were not permitted to return to work until sometime
after July 23, 1986, when, by memorandum, the B&M restored their
seniority in compliance with a permanent injunction granted by
the district court in Railway Labor Executives' Ass'n v. Guilford _______________________________ ________
Transp. Indus., 639 F. Supp. 1092 (D. Me.), aff'd in part and ______________ __________________
rev'd in part sub nom., Railway Labor Executives' Assoc. v. _________________________ __________________________________
Boston & Me. Corp., 808 F.2d 150, 160 (1st Cir. 1986), cert. ___________________ _____
denied, 484 U.S. 830 (1987). Although this court vacated the ______
injunction against The B&M, holding that the dispute involving
the BMWE employees was one pertaining to the interpretation or
application of the CBA and was thus within the exclusive
jurisdiction of the appropriate adjustment boards to resolve.
However, at no time after this court vacated the injunction did
the B&M rescind its July 23, 1986, memorandum restoring the
claimants' seniority.
In accordance with the mandate of this court, the
district court entered an order referring the contractual
disputes concerning the B&M to "the National Railroad Adjustment
Board or Public Law Board, whichever is applicable." As a
result, on February 13, 1989, the BMWE and the B&M entered into
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an agreement to establish a Public Law Board pursuant to Section
3 Second of the Railway Labor Act (the "RLA"), 45 U.S.C. 153
Second, to hear the 175 disputes at issue. In March 1989, the
National Mediation Board (the "NMB") established Public Law Board
4669 to hear the disputes and appointed Edwin H. Benn from the
Board. On May 10, 1993, Referee Benn resigned as the neutral
member of Public Law Board 4669. The BMWE and the B&M partisan
members on the Board agreed to select Elizabeth C. Wesman as the
neutral member to replace Referee Benn, and on August 3, 1993,
she was duly appointed by the NMB.
With Wesman as the neutral member, Public Law Board
4669 heard five cases (Nos. 6, 7, 9, 10 and 11) and subsequently
Wesman issued proposed awards in each of the five cases. Public
Law Board sustained, in part, the claims in Awards 6, 7, 9 and 10
-- with the B&M partisan member dissenting -- finding that the
claimants had been erroneously deprived of their seniority by the
B&M's actions. These four awards ordered the B&M to compensate
the claimants in those cases with
back pay for wages [each claimant] . . .
would have earned, but for the erroneous ___ ___
removal of his seniority on May 19,
1986[,] for the interval between that
date and the date of his assumption of
the position to which he was properly
entitled, following restoration of his
seniority on July 23, 1986. [Claimants
are] . . . also entitled to restoration
of any vacation rights [they] . . . may
have lost as a consequence of the
erroneous removal of [their] . . .
seniority.
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The B&M has refused to pay the back pay ordered by the four
awards (Nos. 6, 7, 9, and 10) of Public Law Board 4669. Instead,
the B&M filed a motion for summary judgment with the district
court seeking to have the awards set aside; in response, the BMWE
filed a motion for summary judgment seeking to enforce these
awards. The B&M now appeals the district court's denial of its
motion, as well as the district court's decision to grant the
BMWE's motion. Like the district court before us, we refer to
Award No. 6 only, since it is the lead decision in this matter,
the reasoning of which is incorporated in Awards Nos. 7, 9 and
10.
STANDARD OF REVIEW STANDARD OF REVIEW __________________
We examine a grant of summary judgment de novo, ________
applying the same decisional standards as the district court.
Wyner v. North Am. Specialty Ins. Co., 78 F.3d 752, 754 (1st Cir. _____ ____________________________
1996). As such, we must apply the normal standard by which
courts review arbitration decisions pursuant to the RLA. See ___
Trial v. Atchison, Topeka & Santa Fe Ry., 896 F.2d 120, 123 (5th _____ ________________________________
Cir. 1990).
"Judicial review of an arbitration award is among the
narrowest known in the law." Maine Cent. R. Co. v. Brotherhood __________________ ___________
of Maintenance of Way Employees, 873 F.2d 425, 428 (1st Cir. _________________________________
1989). Under the RLA, an award by a Public Law Board can be set
aside only if: (1) the Board failed to comply with the
requirements of the RLA; (2) the Board exceeded its jurisdiction;
or (3) the award was the product of fraud or corruption. 45
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U.S.C. 153 First (q). While the limited scope of judicial
review "is not the equivalent to granting limitless power to the
arbitrator," Georgia-Pacific Corp. v. Local 27, United _______________________ ____________________
Paperworkers Intern. Co., 864 F.2d 940, 944 (1st Cir. 1989), "as _________________________
a general proposition, an arbitrator's factual findings are not
open to judicial challenge," El Dorado Tech. Servs. v. Uni n ________________________ _____
General de Trabajadores de Puerto Rico, 961 F.2d 317, 320 (1st ________________________________________
Cir. 1992). Where, as here, issues of fraud or corruption are
not raised, we ask "whether the arbitrators did the job they were
told to do -- not whether they did it well, correctly, or
reasonably, but simply whether they did it." Brotherhood of _______________
Locomotive Eng'rs v. Atchison, Topeka and Santa Fe Ry. Co., 768 _________________ _______________________________________
F.2d 914, 921 (7th Cir. 1985).
DISCUSSION DISCUSSION __________
In her revised Award, ultimately adopted by the Board,
Referee Wesman concluded that because the First Circuit, in its
December 22, 1986, decision, reversed the part of the district
court's order that restored the seniority of the affected
employees, but the B&M failed to retract its July 23, 1986,
memorandum restoring such seniority, the issue of whether
claimants were deprived of their seniority was "moot." Public
Law Board No. 4699, Award No. 6, p. 10. The district court
ordered the enforcement of Award No. 6 because it concluded that
"the decision that it is not necessary to interpret the contract
is a decision which is entitled to the same level of deference as
a finding of contractual meaning." Boston & Maine Corp. v. ______________________
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Brotherhood of Maintenance of Way Employees, No. 94-321-P-C, _______________________________________________
slip. op. at 14 (D. Me. 1995). The district court so concluded
because it read the Award as "a legal decision based on factual
determinations" to which "[c]ourts are bound to defer . . .
unless the arbitrator has manifestly disregarded the law." Id. ___
at 15. The district court found no such manifest disregard.
On appeal, the B&M contends that, because the RLA
directs that the role of a public law board is to interpret or
apply the provisions of a collective bargaining agreement, and
because the instant parties' agreement did not expand the Board's
jurisdiction beyond that set by the RLA, by failing to interpret
and apply the CBA in making her decision the Board exceeded its
authority. The B&M buttresses this argument by claiming that the
arbitrator's failure to interpret or apply the CBA violated this
court's prior conclusion that the disputes in question required
the interpretation or application of the CBA. See Railway Labor ___ _____________
Executives' Ass'n v. Boston and Maine Corp., 808 F.2d 150, 159 __________________ _______________________
(1st Cir. 1986), cert. denied, 484 U.S. 830 (1987).1 ____________
____________________
1 We also reject the B&M's contention that the district court
made a finding of fact that the arbitrator failed to interpret or
apply the CBA. In review of RLA arbitration, the factual
findings of the arbitral panel are "conclusive" upon the district
court. 45 U.S.C. 153 First(q). Thus, the district court was
not obligated to make findings of fact for the purposes of
Federal Rule of Civil Procedure 52(a), see Makuc v. American ___ _____ ________
Honda Motor Co., 835 F.2d 389, 394 (1st Cir. 1987), and indeed, _______________
the district court properly noted that it lacked jurisdiction to
review the factual findings of the panel, Boston & Maine Corp. v. ____________________
Brotherood of Maintenance of Way Employees, No. 94-321-P-C, slip ___________________________________________
op. at 17 (D. Me. November 9, 1995).
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As an initial matter we reject the contention that our
previous opinion directed that the Board construe the CBA. The
B&M points to a statement in our previous opinion that "[w]hether
a party is in breach of a collective bargaining agreement . . .
'requires the interpretation [and] application'" of that
agreement. Railway Executives' Assoc., 808 F.2d at 159 (quoting __________________________
45 U.S.C. 153, First (1) (RLA)). However, there, we were
responding to the district court's exercise of jurisdiction over
an arbitrable "minor" dispute, which was not first litigated
before an appropriate arbitration board -- as the RLA directs.
See 45 U.S.C. 153, First (providing that arbitration of ___
disputes over contract interpretation is compulsory). See, e.g., ___ ____
Andrews v. Louisville R.R. Co., 406 U.S. 320, 323 (1972). Our _______ ____________________
statement regarding "interpretation" and "application" of the CBA
is best read as distinguishing the job of an arbitration board
under the RLA from the district court's proper exercise of its
jurisdiction. In that light, our previous language cannot be
construed as limiting the Board to interpreting the contract,
rather than exercising the full authority afforded it by the
parties.
We turn to the question of the proper scope of the
arbitrator's authority. The B&M asks us to adopt the view that
the Board's sole authority was to apply and interpret the
provisions of the CBA that the parties brought before it, and
that by dismissing the issue brought before it as moot, the Board
exceeded that authority. We cannot accept such a restrictive
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reading of the scope of arbitration in this case. We have stated
before that "once an issue has been committed to arbitration,
both the CBA and the submission itself should be taken into
account in determining the scope of the submission." El Dorado _________
Tech. Servs., 961 F.2d at 320. In El Dorado Technical Services, ____________ ____________________________
an employer argued that an arbitrator exceeded the scope of his
authority by taking into account provisions other than the
particular provision under which the union complained. Id. In ___
response, we concluded that "[a]n arbitrator's view of the scope
of the issue committed to his [or her] care is entitled to the
same far-reaching respect and deference as is normally accorded
to the arbitrator's interpretation of the collective bargaining
agreement itself." Id. at 321. As a result, we rejected as ___
"bordering on the chimerical" the view that an arbitrator could
exceed the scope of his authority by electing to consider the
agreement in question as a whole. Id. We do so again here. ___
Similarly, B&M claims that the arbitrator failed to
interpret the CBA in this case, in particular the CBA's Rule 13
governing the retention of seniority rights during furlough. The
Board concluded that because B&M had restored these rights
pursuant to the district court's ruling in 1986, and did not
retract this restoration pursuant to the First Circuit's 1986
reversal, the issue of whether the B&M properly terminated
employees' seniority is "moot." While the instant case differs
from El Dorado Technical Services in that there the arbitrator's ____________________________
ruling was challenged on appeal for considering provisions of the
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CBA that were not submitted for arbitration for the parties, we
think that El Dorado Technical Services at the very least directs ____________________________
that the Board's decision not to interpret Rule 13 cannot alone
support the conclusion that the Board exceeded the scope of its
authority, despite the fact that the parties' submission focused
on Rule 13. The parties' submission agreement in fact stated
that the "Board shall have jurisdiction only of the claims and
grievances" shown on an attached list containing the claimants'
names that included the Rule 13-related issue of seniority. We
conclude the Board's mootness ruling is a plausible
interpretation of the "claims and grievances" language in the
submission. We defer, per El Dorado, to the Board's conclusion _________
that the "claims" consisted of only the question of remedy, since ____ ______
the B&M essentially conceded the question of liability. Cf. Pack _________ ___ ____
Concrete, Inc. v. Cunningham, 866 F.2d 283, 285-86 (9th Cir. ______________ __________
1989) (deferring to the arbitrator's ruling that submitted
"seniority and recall" issue also allowed consideration of
propriety of discharge").
What we are left with, then, is the question of whether
an arbitrator's decision that the existing record does not
present a justiciable controversy, in and of itself, oversteps
the arbitrator's authority pursuant to the RLA. We conclude that
the Board cannot seriously be considered to have overstepped its
bounds, where, as here, the arbitrator's decision was grounded in
B&M's allowance via its memorandum -- prior to arbitration -- of
the remedy sought by employees. The Supreme Court has clarified
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that arbitration boards under the RLA are not restricted simply
to the interpretation of the agreement set before them.
Transportation-Communication Emp. Union v. Union Pac. R. Co., 385 _______________________________________ _________________
U.S. 157, 165-66 (1966). In fact, the Supreme Court has ordered
arbitration boards "to resolve th[e] entire dispute not only upon
the contract between the railroad and [employees], but 'in light
of . . . [contracts] between the railroad' and any other union
'involved' in the overall dispute, and upon consideration of
'evidence as to usage, practice and custom' pertinent to all
these agreements." Id. (quoting Order of Ry. Conductors v. ___ _________________________
Pitney, 326 U.S. 561, 567 (1946)); see also International Bhd. of ______ ________ _____________________
Teamsters v. Pan Am World Servs., Inc., 675 F. Supp. 1319, 1322 _________ __________________________
(M.D. Fla. 1987). In the instant case, the Board's decision was
certainly made in light of the CBA, upon consideration of the
current practice among B&M and the employees involved pertinent
to the CBA. Specifically, because B&M had continue to afford its
employees their "disputed" seniority while being free not to do
so, the Board found moot the issue of whether the complaining
employees could have complied with Rule 13 of the CBA, pursuant
to which they lost their seniority.
It is well settled that 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 Parole Comm'n ___________________________
v. Geraghty, 445 U.S. 388, 396 (1980) (quoting Powell v. ________ ______
McCormack, 395 U.S. 486, 495-96 (1969)), or alternatively, when _________
the "party invoking federal court jurisdiction" no longer has "a
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personal stake in the outcome of the controversy." Geraghty, 445 ________
U.S. at 397. An exception to the mootness doctrine exists where
it appears that all issues in a case have been resolved, but the
issues are "capable of repetition, yet evading review." Southern ________
Pac. Terminal Co. v. ICC, 219 U.S. 498 (1911). One might dispute _________________ ___
whether the Board was correct as a legal matter in its
determination that the matter in question was moot. However, for
us to assess the merits of that determination would exceed our
own role in reviewing an arbitrator's decision. We are
constrained to ask only whether the Board's members "did the job
they were told to do." Brotherhood of Locomotive Eng'rs, 768 _________________________________
F.2d at 921. That job was to resolve the dispute "in light of"
the CBA and the relevant practice between the B&M and the
complaining employees. The Board certainly did this job, in a
manner that cannot even be characterized as arbitrary or
capricious -- a standard which would still not be adequately
deferential to the Board's decision. See Loveless v. Eastern ___ ________ _______
Airlines, 681 F.2d 1272, 1276 (11th Cir. 1982) (noting that the ________
Senate Labor Committee rejected language that would have
permitted courts to vacate arbitral awards under the RLA as
"arbitrary or capricious"). Our inquiry ends there.
CONCLUSION CONCLUSION __________
As a result of the foregoing, the judgment of the
district court is affirmed. affirmed. ________
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