BLE v. UTU

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

_____________

No. 96-2358
_____________

Brotherhood of Locomotive *
Engineers International Union; *
Kerry G. Timmons; James C. *
Schlereth, *
*
Plaintiffs - Appellees, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Union Pacific Railroad Company, *
*
Defendant - Appellee, *
*
United Transportation Union, *
*
Defendant - Appellant. *
_____________

Submitted: February 14, 1997

Filed:
_____________

Before HANSEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
MELLOY,1 District Judge.
_____________

1
The Honorable Michael J. Melloy, Chief Judge, United States District Court for
the Northern District of Iowa, sitting by designation.
HANSEN, Circuit Judge.

The United Transportation Union (UTU) appeals from the district court's2 grant
of the plaintiffs' and the Union Pacific Railroad Company's (Union Pacific) motions for
summary judgment. In its order, the district court vacated a decision of Public Law
Board 4478 on the basis that it violated the Railway Labor Act (RLA), 45 U.S.C.
§§ 151-88 (1994). We affirm.

I.

In this case, we address the question of what participatory rights in an arbitration
proceeding exist under the RLA when it involves two labor unions and a rail carrier.
Before turning to our discussion of the proceedings at issue here, we first place the
dispute in its factual context.

The twentieth century has seen substantial changes in the railroad industry, not
the least of which is the changing type of skilled work available for railroad workers.
In the glory days of the steam-powered railroad industry, a fireman tended the fire in
the steam locomotive. In addition, the fireman learned the skills and duties of the
engineer, the person who actually operated the locomotive. Eventually, a fireman could
qualify to obtain a promotion and become an engineer. Each craft existed separately,
and while each craft had its own union, a single worker could be qualified both as a
fireman and as an engineer and occupy a position on the seniority lists of each craft.

The relationship between the positions of fireman and engineer lent itself to a
system of "ebb and flow" with employees low on the engineer seniority list moving

2
The Honorable Edward L. Filippine, United States District Judge for the Eastern
District of Missouri.

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between positions as engineer and fireman as the demand for engineers fluctuated.
This system was governed by virtually identical "mileage regulations" in the collective
bargaining agreements (CBAs) between the railroads and the labor organizations
representing the two crafts. The mileage regulations set forth a benchmark of average
monthly miles worked by engineers. If the engineers' average miles dipped below the
contractual benchmarks, some engineers with less seniority would ebb to a fireman
position. Firemen with the least seniority would be furloughed. When the mileage
exceeded reinstatement benchmarks and more engineers were needed, qualified
engineers working as firemen would flow back into the newly available engineer
positions, and furloughed firemen would be recalled to work.

The flexible ebb and flow system faltered when diesel locomotives came into
existence. As diesel locomotives replaced the steam locomotives, the railroads' need
for firemen disappeared. The railroads began to eliminate fireman positions through
attrition, and the remaining firemen began to perform more "hostler" work, consisting
of fueling and servicing the engines and moving engines within the rail yards. When
work was slow, engineers still ebbed down, displacing firemen who were moved to
performing more hostler work. But when business picked up and a rail carrier needed
more engineers, the qualified firemen who could work as engineers were too often
either on duty as firemen, or resting from work as firemen, or hostling in far-off rail
yards and not immediately available for engineer duty.

In an attempt to solve this problem, several rail carriers, including the Union
Pacific, jointly negotiated a mediation agreement with the UTU under which the
carriers could eliminate the firemen through attrition and could recruit additional
engineers from the class of workers known as "trainmen," a position that had not
become outdated with the advent of the diesel locomotives. The mediation agreement
was not, however, a perfect solution.

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 The Union Pacific also agreed with the engineers' labor organization, the
Brotherhood of Locomotive Engineers (BLE), to create "extra boards" containing lists
of available engineers. However, because these extra boards were also governed by
mileage regulations, under which engineers ebbed down to firemen (which still
involved the less desirable hostling work), the problem of the availability of engineers
upon demand remained.

Finally, the Union Pacific decided it needed a pool of engineers in reserve who
would not ebb down to firemen and who would be available regardless of how many
miles they worked. In 1986 and 1987, the Union Pacific and the BLE entered into
several agreements, establishing "reserve boards" of engineers.3 Unlike the regular
extra boards, the reserve boards were not subject to the mileage regulations.

The UTU (the labor union representing the firemen) believed the BLE and the
Union Pacific’s agreements to create the new reserve boards violated the mileage
regulation provisions in the firemen’s CBA between the UTU and the Union Pacific.
These mileage regulation provisions were virtually identical to the mileage regulations
in the engineers’ CBA between the BLE and the Union Pacific. The UTU contended
that its CBA between the firemen and the Union Pacific prohibited the creation of
engineer positions in a manner contrary to the mileage regulations which were common
to both CBAs, and also restricted the number of engineer positions that could exist in
any seniority district. The UTU therefore objected to the creation of the new reserve
boards created without the UTU's involvement or concurrence. The Union Pacific
responded that the agreements establishing the new reserve boards were proper and
valid and that the BLE (not the UTU) had the exclusive authority to enter into

3
These boards are sometimes referred to as "guaranteed extra boards" or
"supplemental extra boards." (Union Pacific App. at 37, 41-44, 51-59.) For
consistency, we will call them "reserve boards."

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agreements with the Union Pacific regarding the creation of engineer positions and the
conditions surrounding those positions.

When the UTU and the Union Pacific were unable to resolve their differences
amicably, the UTU referred the matter to arbitration in accordance with Section 3 of
the RLA, 45 U.S.C. § 153 Second (second paragraph). On January 26, 1988, the UTU
and the Union Pacific entered into an agreement establishing a public law board to
answer the following question in issue:

Under the provisions of the Labor Contract between the [UTU] and the
[Union Pacific] . . . , may [Union Pacific] enter into agreements with
another labor organization that have for their purpose the establishment
of extra boards for engineers (including, but not limited to reserve,
auxiliary, and guaranteed boards) which are not regulated in accordance
with the provisions of the [UTU] Agreement or are established to create
engineer positions that are not called for under the mileage regulations
and/or the requirements of the service as contemplated and required by
the rules of the [UTU]?

(Appellant's App. at 85.) The parties established Public Law Board 4478 (the Criswell
Board), consisting of two partisan members (one selected by the UTU and one by the
Union Pacific) and one neutral member, John B. Criswell.

Upon notification in February 1988 of the proposed arbitration, the then-
chairman of the BLE requested leave to participate as an "interested third party" in the
event that the matter did indeed proceed to arbitration. The Union Pacific replied,
noting that the BLE appeared to have a third party interest in the suit and stating that
it would keep the BLE informed of developments in connection with the dispute. The
UTU acquiesced in third party status for the BLE without objection.

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 The parties took no further action regarding the arbitration before the Criswell
Board, but instead turned their attention to another dispute between them that had
arisen out of the merger between the Union Pacific and another rail carrier. This
dispute resulted in the creation of yet another public law board, the LaRocco Board.
The configuration of the LaRocco Board included the BLE and the Union Pacific, this
time holding opposing views and each represented by a board member, and the UTU
appeared as an interested third party. The LaRocco Board issued its decision in
January 1990 and ruled in favor of the BLE, holding that the Union Pacific could not
reduce or discontinue its use of the new reserve boards in certain seniority districts.

The Criswell board did not meet until June 1990. By that time, as a result of the
dispute between the Union Pacific and the BLE in the LaRocco arbitration, the BLE
no longer felt comfortable with just "third party status" before the Criswell Board. The
BLE no longer trusted that the Union Pacific would adequately advocate the validity
of the agreements between the BLE and the Union Pacific creating the new reserve
boards. The BLE was concerned that the Union Pacific could avoid the intended effect
of the LaRocco award if the new reserve board agreements were found invalid by the
Criswell Board. When the Criswell Board convened, but before the board met in
executive session and before the board voted on the dispute, the BLE's General
Chairman appeared on the BLE's behalf and requested that the BLE be permitted to
participate fully in the arbitration, not merely as an "interested third party." The BLE
argued that because its agreements with the Union Pacific were at stake, the BLE
should have a voting member on the board, should participate in choosing the neutral
member of the board, and should participate in formulating the question at issue. The
BLE also argued that the Criswell Board lacked jurisdiction to decide the question at
issue, because the question implicated representational issues, the resolutions of which
were in the exclusive jurisdiction of the National Mediation Board.

The neutral arbitrator, Criswell, rejected the BLE's objections and denied the
BLE's request to be a full member on the Board. Consequently, the BLE presented its

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arguments only as an interested third party, without the right to attend the Board's
closed executive session. The Criswell Board issued its award on August 22, 1991,
finding that the Union Pacific "may not negotiate with either of the unions separately
an agreement which has for its purpose abrogation, change, or evasion of agreements
existing with the other." (Id.)

Shortly after the Criswell award was rendered, the BLE and two of its members
filed the instant complaint in the United States District Court for the Eastern District
of Missouri. The plaintiffs first sought an order enforcing the LaRocco award. They
also sought an order vacating the Criswell award based upon lack of jurisdiction and
noncompliance with the requirements of the RLA. The UTU filed a cross claim against
the Union Pacific, seeking enforcement of the Criswell award. The parties then filed
motions for summary judgment. On April 15, 1996, the district court granted the
plaintiffs' and the Union Pacific's motions in part, vacating the Criswell award for the
board’s noncompliance with the RLA. Accordingly, the court denied the UTU's motion
to enforce the Criswell award. Also, the court denied without prejudice the plaintiffs'
and the Union Pacific's motions seeking enforcement of the LaRocco award, finding
(at the parties' suggestion) the issue to be moot. The court did not reach the parties'
arguments regarding the Criswell Board's jurisdiction. The UTU now appeals the
district court's determination that the Criswell award was rendered in violation of the
RLA.

II.

We review the district court's grant of summary judgment de novo. Summary
judgment is appropriate when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986).

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 Arbitration before a board of adjustment authorized by the second paragraph of
45 U.S.C. § 153 Second, commonly referred to as a public law board (PLB), see 29
C.F.R. § 1207.1 (1997), is a method of resolving minor disputes, that is, "disputes
between an employee or group of employees and a carrier or carriers growing out of
grievances or out of the interpretation or application of agreements concerning rates of
pay, rules, or working conditions." 45 U.S.C. § 153 First (i); see id. § 153 Second
(authorizing arbitration before PLBs "to resolve disputes otherwise referable to the
[National Railroad] Adjustment Board" under section 153 First). Congress created this
optional mechanism for dispute resolution in a 1966 amendment to the RLA as a result
of the backlog of cases then pending before the National Railroad Adjustment Board
(NRAB). Douglas L. Leslie, The Railway Labor Act 58-59 (Douglas L. Leslie et al.,
eds., 1995).

The RLA sets forth the procedure for establishing PLBs. See 45 U.S.C. § 153
Second (second paragraph); 29 C.F.R. § 1207 (1994). Either a union or a rail carrier
may request that the other party join in an agreement to establish a PLB to resolve a
collective bargaining dispute. The PLB "shall consist of one person designated by the
carrier and one person designated by the representative of the employees." 45 U.S.C.
§ 153 Second. "The members of the board so designated shall determine all matters
not previously agreed upon by the carrier and the representative of the employees with
respect to the establishment and jurisdiction of the board." Id. If the partisan board
members are unable to resolve the dispute, they must attempt to agree to select a
neutral board member or request the National Mediation Board to appoint a neutral
member who will decide the matter. "Any two members of the board shall be
competent to render an award." Id. The PLB's decision is ?final and binding upon both
parties to the dispute.” Id.

The scope of judicial review of a PLB's decision under the RLA is quite narrow.
Awards of PLBs are enforceable in the same manner as are awards of the NRAB. Id.
As a general matter, the PLB's findings and its order are conclusive on the parties. 45

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U.S.C. § 153 First (q); see also Brotherhood of Locomotive Eng'rs v. Louisville & N.
R.R., 373 U.S. 33, 39 (1963) (noting Congress intended the remedies provided by these
boards "to be the complete and final means for settling minor disputes"). We will set
aside a PLB's decision only for (1) failure to comply with RLA requirements, (2) failure
to confine itself to matters within its jurisdiction, or (3) fraud or corruption by a Board
member. 45 U.S.C. § 153 First (q); Union Pac. R.R. v. Sheehan, 439 U.S. 89, 93
(1978).

The plaintiffs and the Union Pacific maintain that the Criswell Board failed to
comply with the requirements of the RLA because the BLE was not allowed to
participate in the formulation of the issue, was not allowed to designate a member of
the Board, and consequently was excluded from the executive session of the Board.
The UTU argues, however, that the Criswell Board did not violate the RLA because the
BLE had entered a binding agreement to participate in the Criswell arbitration only as
an interested third party and, alternatively, had waived any right to be a full participant
on the board by failing to raise its objections for over two years after the board was
established. The UTU also argues that the BLE had no right under the RLA to
participate as a full member of the Board. The plaintiffs and the Union Pacific counter
that the BLE neither entered into a binding agreement to appear only as an interested
third party nor waived its right to full participation on the Criswell Board.

A. Waiver

We first address the UTU's waiver argument. The UTU claims the BLE waived
its objections by failing to raise them prior to the June 1990 Criswell Board hearing.
The parties to an arbitration may waive procedural defects by failing to bring such
issues to the arbitrator's attention in time to cure the defects. This rule applies because
"orderly procedure and good administration require that objections to the proceedings
of an administrative agency be made while it has opportunity for correction in order to
raise issues reviewable by the courts." United States v. L. A. Tucker Truck Lines, Inc.,

9
344 U.S. 33, 37 (1952). Moreover, "[i]t is imperative to an efficient and fair
administration of justice that a litigant may not withhold his objections, await the
outcome, and then complain that he was denied his rights if he does not approve the
resulting decision." Brotherhood of Ry., Airline, & S.S. Clerks, Freight Handlers,
Express & Station Employees v. St. Louis S.W. Ry., 676 F.2d 132, 136 (5th Cir. 1982)
(quoting Brotherhood of R.R. Trainmen v. Chicago, Milwaukee, St. Paul & Pac. R.R.,
380 F.2d 605, 608-09 (D.C. Cir. 1967); see also Schneider v. Southern Ry., 822 F.2d
22 (6th Cir. 1987) ("It is well-established that parties to an arbitration may waive
procedural defects by failing to bring such issues to the arbitrator's attention in time to
allow the arbitrator an opportunity to cure the defects.").

The BLE's timing in raising its objections does not constitute waiver. The BLE
presented its objections prior to the Criswell Board's executive meeting and prior to any
vote taken by the Board. Moreover, the record indicates that no activities were
undertaken by either the Board or the BLE regarding the dispute prior to the June
meeting. Although the Board was not aware of the BLE's objections until two years
after it had been established, this delay is not unreasonable, given that the Board was
essentially inactive between the time it was established and the time it met in June 1990.
By the time it did meet, the prior synergism between the BLE and the Union Pacific had
dissipated, at least from the BLE's perspective, and the BLE no longer trusted the Union
Pacific to vote to uphold the validity of their existing agreements to create the new
reserve boards. When the BLE did present its objections, the arbitrator had ample
opportunity to address them and to cure any default. We therefore conclude that the
BLE did not waive its right to object by waiting to do so until the Board met in June
1990.

B. Agreement as to Third Party Status

Upon receiving notice of the UTU's and the Union Pacific's arbitration agreement,
the BLE expressed its desire to be made an interested third party if

10
arbitration did in fact ensue. The Union Pacific acknowledged the BLE's request and
concurred that the BLE had a third party interest in the dispute. The UTU did not
respond, evidently acquiescing to the BLE's request. The UTU and the BLE were
opposed to each other's position with respect to the issue to be resolved.

The UTU now argues that by requesting third party status, the BLE entered into
a binding agreement to appear only as an interested third party, and thereby relinquished
its right to claim full membership on the Criswell Board. We respectfully disagree. The
correspondence exchanged represents a preliminary understanding that the BLE had a
vital interest at stake in the arbitration before the Criswell Board. The parties did not
enter into any agreement concerning BLE's role in the arbitration, and no consideration
was exchanged. Absent any formal agreement to the contrary, the BLE retained the
right to exercise its right to claim full membership on the board.

We note that had the arbitration proceeded in a timely manner, that is without a
two-year delay between formation of the board and its convening, the BLE might well
have proceeded without objecting to its interested third-party status, thereby waiving
its right to full participation on the board. However, because of the BLE's perception
that the Union Pacific was now less than enthusiastic in its support of the BLE/Union
Pacific agreements at issue, the BLE asserted its claimed right. Absent any formal
binding agreement with the BLE to the contrary, the other parties assumed the risk that
in allowing two years to pass, the BLE would no longer be satisfied with its third party
status at the time the Criswell Board convened.

C. Right to Full Board Participation

The UTU also argues substantively that the BLE had no right under the RLA to
participate as a full member of the Criswell Board. The UTU contends that allowing
both unions to designate their own PLB member contravenes the language of the RLA,

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invites the possibility of a tie vote by creating a four-member board, and stacks the deck
against labor organizations.

The plain language of the RLA anticipates a three-member board, consisting of
?one person designated by the carrier and one person designated by the representative
of the employees,” and one neutral member when the carrier and the union
representative are unable to resolve the dispute. 45 U.S.C. § 153 Second (second
paragraph). The PLB’s decision, rendered by any two members of the board, is to be
?final and binding upon both parties to the dispute.” Id. Thus, on its face, the statute
anticipates a three-member board which would be upset if a second union with an
interest in the dispute were allowed to designate a board member as well.

Nevertheless, we do not write on a clean slate but must consider our prior case
law. It is beyond dispute that an interested union has a right to participate in PLB
proceedings. See Transportation-Communication Employees’ Union v. Union Pacific
R.R., 385 U.S. 157 (1966) (holding all interested parties must be notified of an
arbitration and afforded a right to participate in the arbitration). See also United Transp.
Union v. Burlington N., Inc., 470 F.2d 813 (8th Cir. 1972) [hereinafter BN1] (stating,
in a dispute involving the interpretation of a provision common to the CBAs of two
unions,?both unions were entitled to participate in any proceedings to determine the
meaning of a paragraph common to both [CBAs]”). Certainly, the BLE was afforded
the right to participate in the proceedings before the Criswell Board. Key to this appeal,
however, is the question of whether that right to participate includes the right to
designate a voting board member, a right which the BLE was not afforded. For
guidance on this issue, we consider General Comm. of Adjustment v. Burlington N.,
Inc., 563 F.2d 1279 (8th Cir. 1977) [hereinafter BN2].

In BN2, the dispute arose over the interpretation of a merger protection
agreement between the Burlington Northern (BN) and the BLE. The engineers involved
in the dispute were members of both the BLE and the UTU, and they asked

12
the UTU to process their grievance against the railroad. The UTU requested a special
board of adjustment pursuant to the second paragraph of 45 U.S.C. § 153, Second (a
Public Law Board),4 and the BN objected, arguing that such a board had no jurisdiction
over the dispute. Id. at 1281. Nevertheless, the BN agreed to submit the jurisdictional
issue to the special board of adjustment, which agreed with the BN that it lacked
jurisdiction to interpret the merger agreement. Id. Upon our consideration of the
dispute, we emphasized:

[I]n disputes arising out of collective bargaining agreements, other than
merger protective agreements, an employee not only has a right to be
represented by the union of his choice but also has a right to have his
union representative sit on the arbitration panel deciding the case. The
employee has the right even though the contract being construed was
negotiated by a rival union and even though precedents established by the
rival union and the railroad are to be followed.

....

An aggrieved employee cannot help but feel that his interests in an
arbitration proceeding will be better served if his union representative sits
in on the closed door discussions that follow a presentation than if a
representative of a union to which he does not belong or to which he has
not entrusted the adjustment of his grievance has this privilege.

4
The term ?special board of adjustment” can at times be confusing. A board
created pursuant to the second paragraph of 45 U.S.C. § 153, Second, is specifically
called a ?special board of adjustment” in that paragraph. In practice, however, the
term is usually used to refer to the private ?system, group, or regional boards of
adjustment” authorized by the first paragraph of 45 U.S.C. § 153, Second. As we
noted earlier, the statutory ?special boards of adjustment” authorized by the second
paragraph of the cited section are commonly called ?public law boards” to
differentiate them from the private boards authorized by the first paragraph. See
Employees Protective Ass’n v. Norfolk and Western Ry., 511 F.2d 1040, 1044 (4th
Cir. 1975).

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BN2, 563 F.2d at 1284.

This precedent compels us to conclude that the BLE was entitled to participate
as a member of the Criswell Board. Our opinions in BN1 and BN2 indicate that both
unions have a right to representation on the board where the dispute involves a contract
provision common to both unions’ CBAs with the same carrier, even if the contract
dispute initially arose between the rail carrier and but one of the unions over the contract
provision. Our own reading of the statute leaves us somewhat discomforted by this
resolution, because the plain language of the second paragraph of 45 U.S.C. § 153
Second seems to envision only a three-person PLB. Nevertheless, because our panel
is not at liberty to overrule another panel decision, we are compelled to follow the
reasoning of BN1 and BN2, which reasoning indicates that the BLE was not obligated
to accept its designation as a third party but had a right to full membership on the
Criswell Board.

The BN2 court said that ?[w]e see no practical problems arising from this
opinion.” 563 F.2d at 1285. The UTU’s arguments that a four-person board invites the
possibility of deadlock and that such a board may work to the disadvantage of labor
organizations highlight some practical problems that might well develop in the future.
The answer may lie in our BN1 decision, where we indicated that the dispute in that
case, like this one, involving as it did the right of both unions to sit on the arbitration
board, would best be decided by the larger National Railroad Adjustment Board, where
all the parties are clearly entitled to have board participants, rather than by a PLB. See
470 F.2d 815-16.

Because the district court did not decide the BLE’s jurisdictional challenge to the
Criswell Board, i.e., that the dispute was a representational one between the two unions
addressable only by the National Mediation Board, we decline to address the issue.

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 III.

In conclusion, we hold that pursuant to this circuit’s existing case law, the BLE
had a right under the RLA to full participation on the Criswell Board, which it timely
asserted and did not waive. Thus, the district court properly vacated the Criswell
Board's decision, and we need not address the parties' arguments concerning the
Criswell Board's jurisdiction. Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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