dissenting.
I respectfully dissent. The district court concluded that reinstatement of Walsh and denial of back pay “fails to draw its essence from the collective bargaining agreement.” In my opinion, the district court did not err in so concluding.
The collective bargaining agreement, Rule 45(c), provides as follows:
If the final decision decrees that charges against the employe were not sustained, the record shall be cleared of the charge; if suspended or dismissed, the employe shall be reinstated and compensated for any loss of wages.
Where an employe is dismissed or suspended from service for cause and subsequently it is found that such discipline was unwarranted and the employe is restored to service with pay for time lost, earnings in other employment shall be used to offset the loss of earnings. (Emphasis added.)
In granting Award No. 4, Public Law Board No. 3314 concluded that “the record does not support the termination” of Walsh. This is an express finding that the charges against Walsh were not sustained. Rule 45(c) thus requires that the record be cleared of the charge and that Walsh be reinstated and compensated for any loss of wages; the Board has no discretion to deny compensation for loss of wages.
The Memorandum of Agreement signed by the parties authorizing the formation of Public Law Board No. 3314 provides as follows:
The Board shall not have jurisdiction of disputes growing out of requests for changes in rates of pay, rules and working conditions, and shall not have authority to change existing agreements/governing rates of pay, rules and working conditions, and shall not have the right to write new rules. '
This limiting provision deprives the Board of authority to change existing agreements or write new rules. This, however, is precisely what the Board did in this case. The district court correctly determined that the Public Law Board had violated the express language of the collective bargaining agreement and the Memorandum of Agreement when it denied back pay after finding that the record did not support termination. The situation is similar to that in International Union of Operating Engineers, Local 9 v. Shank-Artukovich, 751 F.2d 364 (10th Cir.1985), wherein the court stated:
Article VII, § 5 of the collective bargaining agreement at issue here contains express language that required the employer to pay damages if it violates the manning provision of the agreement. The agreement is unequivocal:
If violations of the manning provisions ... are found by ... the Arbitrator and if an individual(s) is found entitled *416to back pay, the same shall be paid by the violator, but if no individual is found entitled to damages the violator shall remit such damages to the Trustees of the Colorado Journeymen and Apprentice Training Fund for Operating Engineers.
The plain language of the agreement contemplates damages whenever the employer violates the manning provisions of the agreement. If no individual is entitled to damages, the agreement requires the employer to pay damages to the union training fund.
The arbitrator found that the employer had violated the manning provisions of the agreement. He also concluded that no individual was entitled to backpay. However, he ruled that the employer was not required to pay damages to the union training fund. His decision did not draw its essence from the collective bargaining agreement. It was contrary to the express terms of the agreement.
Id. at 366.
Zeviar v. Local No. 2747, 733 F.2d 556 (8th Cir.1984), does not require a different result. Zeviar dealt specifically with the collective bargaining agreement’s use of the word “exonerated.” In Zeviar, the collective bargaining agreement provided that if an employee is “exonerated,” she should be reinstated and paid for lost time. We concluded that the chairman did not consider Zeviar to be fully exonerated in the sense of bearing no responsibility for her discharge. Accordingly, the Board was free to exercise its discretion in formulating a remedy. The collective bargaining agreement in this case is substantially different, referring only to the situation where the charges “were not sustained”; exoneration is not an issue. The Board’s conclusion that the record did not “support the termination” comes squarely within the language of Rule 45(c) and thus, unlike the situation in Zeviar, leaves no room for the exercise of discretion.
As the award was directly contrary to the express terms of the agreement, the district court did not err in its determination that the Public Law Board’s award did not draw its essence from the contract. I would affirm the judgment of the district court.