United States Court of Appeals
For the First Circuit
No. 04-2256
AIRLINE PILOTS ASSOCIATION, INTERNATIONAL,
Plaintiff, Appellee,
v.
PAN AMERICAN AIRWAYS CORPORATION,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. James R. Muirhead, U.S. Magistrate Judge]
Before
Lipez, Circuit Judge,
Stahl, Senior Circuit Judge,
and Oberdorfer,* Senior District Judge.
John T. Alexander with whom R. Matthew Cairns and Ransmeier &
Spellman P.C. were on brief for appellant.
Suzanne L. Kalfus with whom Jerry D. Anker, Andrew W. Serell
and Rath, Young & Pignatelli were on brief for appellee.
April 19, 2005
*
Of the District of the District of Columbia, sitting by
designation.
OBERDORFER, Senior District Judge. This is an appeal
from a district court decision enforcing an arbitration award. The
Airline Pilots Association, International (the “Association” or
“ALPA”) petitioned the district court to enforce an award on behalf
of Shahir Selim against Pan American Airways Corporation (“Pan
Am”). The district court granted that petition in full. We now
affirm in part and reverse in part, with directions that the
district court remand to the original arbitration panel for
clarification of the award.
I. BACKGROUND
Shahir Selim is an airline pilot. He worked for Pan Am
under a collective bargaining agreement (the “Agreement” or “CBA”).
The Association is the collective bargaining representative for the
pilots employed by Pan Am.
The Agreement provides for unresolved grievances arising
under it to be submitted to binding arbitration before the Pan Am
Airway Pilots' System Board of Adjustment (the “Board”).
Grievances are heard by panels comprised of representatives of Pan
Am and the Association, along with one neutral arbitrator.
Between August and October 2001, Selim filed five
grievances against Pan Am. Only two are relevant here:
• Failure to Promote. Selim was a
Flight Engineer when he began working for Pan
Am in 1999. He submitted a permanent bid to
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be upgraded to First Officer or, preferably,
Captain. He became a First Officer in January
2000. In March 2000, Pan Am promoted to
Captain a pilot with less seniority than Selim
without giving him a chance to train for and
be upgraded to Captain upon completion of the
required training. On August 28, 2001, Selim
grieved the Company's failure to promote him.
• Improper Discharge. On October 5,
2001, while Selim was preparing to board a Pan
Am flight as a passenger, he took issue with
instructions from flight personnel that he
check baggage that he thought he could carry
on. Pan Am fired Selim on October 29, 2001
based on that incident. Selim filed a
grievance challenging his termination.
When the parties could not resolve Selim's grievances,
the Association pursued arbitration before the Board. A three-
member Board panel held hearings on all five grievances in May and
June 2002. It issued its decision and award (the “Arbitration
Decision” and “Award”) on November 7, 2002.
Meanwhile, according to Pan Am, economic difficulties
forced it to institute a system-wide furlough of its pilots,
beginning in September 2002. Pan Am claims that a pilot with
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Selim's seniority would have been placed on unpaid furlough on
September 12, 2002.1
The Association claims Pan Am never notified Selim
(before or after the Board decision) that he was being furloughed,
as required by the Agreement. According to the Association, this
failure to notify Selim prevented him from grieving the furlough if
he had thought it improper. The Association also claims that if
Selim had been furloughed, rather than discharged, he would have
been entitled to benefits he did not receive. It notes that there
may be other factual issues or problems with Pan Am's claim that
Selim would have been furloughed on the specified dates.
On May 28, 2003, Pan Am sent Selim a letter notifying him
that he was “hereby recalled from furlough status and directed to
report for active employment,” effective June 23, 2003. Selim
returned to work as directed. Meanwhile, the Association
maintained, and it has continued to maintain, that he was never in
fact furloughed.
1
Pan Am's allegations regarding the furlough are contained
in an affidavit it submitted in district court in opposition to the
Association's summary judgment motion. See infra pp. 6 and 20-21.
The Association does not deny that the system-wide furlough
occurred, nor that Selim would have been subject to it (in
accordance with his seniority) if he had not previously been fired.
As discussed below, there is some question as to whether Pan Am
properly introduced the facts regarding the furlough. We
nonetheless recite these facts here for background.
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A. The Arbitration Decision and Award
In the November 2002 Arbitration Decision, the Board
resolved four grievances in Selim's favor2 and one against him.3
The Award concluded with a “Note” (by the neutral arbitrator)
stating: “Concerning all of the above awards, I shall retain
jurisdiction to resolve any financial matters if the parties are
unable to agree.”
As to the grievances relevant on appeal:
1. Failure to Promote. The Board found that Pan Am
should have chosen Selim for Captain training in March 2000. It
held that Pan Am's failure to give him the opportunity to complete
this training represented a continuing violation of his seniority
rights. Because Selim had not filed his grievance until August 28,
2001, the Board was “reluctant to grant back pay for one and one-
half years since no official complaint had been made.” The Award
therefore provided:
The Company shall retroactively recompute the
Grievant's wage scale to that of Captain
effective August 28, 2001 and he shall be
selected for Captain's training for the next
upgrade to Captain. . . .
2
The four grievances resolved in Selim's favor involved:
(1) reimbursement of moving expenses; (2) unreasonably keeping
Selim out of service for medical reasons despite his having passed
two physicals; (3) failing to give him the chance for promotion to
Captain in accord with his seniority; and (4) his discharge.
3
This grievance involved reimbursement of travel expenses.
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2. Improper Discharge. The Board found that, in the
incident for which he was fired, Selim had “resisted a reasonable
instruction to check his flight bag.” The Board determined that
this conduct, while “serious,” was not as egregious as Pan Am
alleged. It noted that “Grievant had never been warned,
disciplined, or even counseled about his conduct” previously. The
Board held that his conduct did “not justify discharge for a first
offense.” It “reduced [the discharge] to a 90 day suspension.”
The Award provided:
The termination of the Grievant is set aside.
He shall be reimbursed to service with
retention of seniority and other benefits, but
he shall receive a 90 day suspension.
B. Proceedings in the District Court
In April 2003, the Association filed this lawsuit to
enforce the Award. Pan Am had not then complied with any of the
Award's requirements, despite several demand letters from the
Association.
On March 15, 2004, the Association filed a motion for
summary judgment supported by a statement of material facts not in
dispute. Pan Am responded with an “Objection” to the motion. In
both its Objection and its supporting memorandum of law, Pan Am
maintained that “there are genuine issues of material fact”
precluding summary judgment. Pan Am bolstered this claim with
specific citations to supporting affidavits. It did not, however,
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support its legal memorandum with a separate statement of the
material facts that it claimed were in dispute.
Pan Am argued, inter alia, that: (1) the award of
Captain's pay to Selim was improper because the Agreement allowed
only those who had completed Captain's training to be paid at that
rate, and Selim had not done so; and (2) any back pay award should
not include pay for the time Selim would have been on furlough if
he had not been discharged.
On June 22, 2004, the district court granted the summary
judgment motion in full. The district court adopted the
Association's statement of facts. It deemed those facts admitted
pursuant to Rule 7.2 of the Local Rules of the District of New
Hampshire because Pan Am “did not include a statement of material
facts as to which it contends a genuine dispute exists.”
The district court rejected Pan Am's argument that the
retroactive award of Captain's pay to Selim, prior to his
completion of training, was inconsistent with the Agreement and
therefore exceeded the Board's authority. The court focused on
arbitrators' broad discretion in shaping remedies:
When an arbitrator is commissioned to
interpret and apply the collective bargaining
agreement, he is to bring his informed
judgment to bear in order to reach a fair
solution of a problem. This is especially
true when it comes to formulating remedies.
There the need is for flexibility in meeting a
wide variety of situations.
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(citing United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363
U.S. 593, 597 (1960)). Recognizing that the Agreement did not
provide “specific remedies . . . for breach of contract,” the court
held that the “arbitrators had discretion to formulate an award to
effectuate the purposes of the agreement.”
The district court also rejected Pan Am's argument that
Selim should not receive back pay for the period from September 11,
2002 through June 23, 2003, when he allegedly would have been on
unpaid furlough if he had been reinstated on January 13, 2002, when
the 90-day suspension authorized by the Award expired. The
district court refused to consider Pan Am's claim that the back pay
award should be understood not to include pay for that nine-month
furlough period. The court explained that this “partial defense to
payment” was “not raised before the arbitrators” nor in Pan Am's
answer or discovery plan. It held that:
Defendant could have, and should have, raised
this matter before the Board either before the
Award or shortly thereafter. It is beyond the
jurisdiction of this court to change the Award,
that is, to address the merits. The award is
enforced as issued and plaintiff is to be paid
effective as of January 13, 2002.
(Emphasis added.)
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II. DISCUSSION
A. Standard of Review
We review the district court's grant of summary judgment
de novo. Boston & Maine Corp. v. Bhd. of Maint. of Way Employees,
94 F.3d 15, 17 (1st Cir. 1996).
In reviewing a decision enforcing an arbitration award,
we give great deference to the arbitration process, as we expect
the district court to do. Id. at 18-19. Indeed, court review of
arbitral decisions is “extremely narrow and exceedingly
deferential.” Bull HN Info. Sys., Inc. v. Hutson, 229 F.3d 321,
330 (1st Cir. 2000) (internal quotation omitted). Courts should
“vacate an arbitral award only in rare circumstances, such as when
there was misconduct by the arbitrator, when the arbitrator
exceeded the scope of her authority, or when the award was made in
manifest disregard of the law.” JCI Communications v. Int'l Bhd.
of Elec. Workers, 324 F.3d 42, 48 (1st Cir. 2003).
B. Failure to Promote
Pan Am argues that the Board “cannot have . . . intended”
to award Selim Captain's pay prior to his completion of Captain's
training because that “would be contrary to several CBA
provisions.” Therefore, Pan Am claims, the Award is ambiguous and
this issue should be remanded to the Board for reconsideration.
The Award provides that the “Company shall retroactively
recompute the Grievant's wage scale to that of Captain effective
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August 28, 2001.” (Emphasis added.) There is nothing ambiguous
about this directive.
The Award further provides that Selim “shall be selected
for Captain's training for the next upgrade to Captain.” The
simultaneous award of a retroactive raise and provision for future
training confirms the Board's awareness that Selim would receive
Captain's pay before completing that training. Moreover, the Board
acknowledged that “Grievant would have to successfully complete
that training before he could actually serve as a Captain . . . .”
There is no reason to believe the Board did not mean what it said,
and so no reason to send the promotion issue back to the Board.
Pan Am's argument therefore reduces to the claim that the
Board exceeded its authority by crafting a remedy that is
inconsistent with the Agreement. Pan Am points to the provision in
the Agreement that a “pilot may not be promoted based on seniority
unless he [h]as met the basic Company qualifications . . . .” CBA
Section 22(D)(3). It also cites to the provision that a pilot's
pay is to be “based on his status and longevity with the Company.”
CBA Section 3 (emphasis added). Pan Am further notes that a pilot
promoted to Captain receives a raise only after “successful
completion” of training, and the raise is retroactive only to the
date training began. CBA Section 24(F).
According to Pan Am, these provisions preclude paying
anyone who has not qualified to serve as a Captain at the Captain's
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rate. Pan Am points out that the Board's “jurisdiction shall not
extend to changes in . . . rates of compensation” covered by the
Agreement. CBA § 21(C)(1). Therefore, Pan Am argues, the Board
exceeded its jurisdiction by requiring payment to Selim at a rate
to which he was not entitled under the Agreement.
The district court was right to reject this argument.
“[W]here it is contemplated that the arbitrator will determine
remedies for contract violations that he finds, courts have no
authority to disagree with his honest judgment in that respect.”
United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 38
(1987). The Supreme Court has recognized that in “formulating
remedies,” arbitrators must have “flexibility in meeting a wide
variety of situations.” Enter. Wheel, 363 U.S. at 597. Courts
must not “review the merits of an arbitration award.” Id. at 596.
Nothing in the Agreement establishes the appropriate
remedy for a violation such as the one found here. It is
unquestionably within the Board's jurisdiction to interpret the
Agreement as needed to resolve grievances and to determine
appropriate remedies for any violation of it. “Where, as here, the
agreement neither requires nor bars particular remedies, the
arbitrator's discretion is at its zenith.” Kraft Foods, Inc. v.
Office & Prof'l Employees Int'l Union, 203 F.3d 98, 102 (1st Cir.
2000) (internal quotation omitted). The Board had discretion to
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determine that Selim ought not be penalized for Pan Am's failure to
provide him the opportunity to train for and become a Captain.
Pan Am also argues that the Board exceeded its
jurisdiction by “chang[ing]” “rates of compensation” under the
collective bargaining agreement. See CBA § 21(C)(1). On the
contrary, however, the Board did not change the rates of pay
provided for under the Agreement. Instead, it determined what
damages Selim had suffered as a result of Pan Am's breach of
contract and crafted a remedy to compensate him for those damages.
There is nothing extraordinary or problematic about such a remedy.
Cf. Kraft Foods, 203 F.3d at 101-02 (clause barring arbitrator from
modifying collective bargaining agreement does not prevent
arbitrator from crafting appropriate remedy to cure breach).
Pan Am argues that the Award improperly placed Selim in
a position “that he had no right to be in” without having
successfully qualified for it. The lone case it cites for this
merely affirms a decision by a district court (as distinguished
from an arbitrator) denying back pay in a particular case. Cabarga
Cruz v. Fundacion Educativa Ana G. Mendez, Inc., 822 F.2d 188, 192-
93 (1st Cir. 1987) (approving denial of back pay where plaintiff
neither asked for a chance to pass the test the employer denied him
nor provided any evidence he would have passed it). Cabarga does
not hold, or even suggest, that back pay is never an acceptable
remedy when an employer's actions prevented an employee from
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satisfying some prerequisite to the position in question, much less
that it is an unacceptable remedy in an arbitration. The case is
simply inapplicable here, as we do not review the merits of an
arbitrator's decision. The question of whether this is an
appropriate or fair remedy goes directly to the merits -- and is
thus well within the Board's discretion.
C. Improper Discharge
The Board reduced Selim's discharge to a 90-day
suspension. The Award provided that Selim “shall be reimbursed to
service with retention of seniority and other benefits” following
his suspension. The suspension period expired January 13, 2002.
The parties agree that this means Selim was to be
reinstated with back pay as of January 13, 2002. They disagree as
to what that means with respect to the 9-month period (from
September 12, 2002 through June 23, 2003) during which Pan Am
claims Selim would have been on furlough along with all other
pilots of his seniority.
The district court refused to consider this argument. It
held that “Defendant could have, and should have, raised this
matter before the Board either before the Award or shortly
thereafter.” (Emphasis added.) The court stated that it was
beyond its jurisdiction “to change the Award, that is, to address
the merits. The Award is enforced as issued . . . .” (Emphasis
added.)
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In reviewing this holding, we distinguish between two
questions -- one substantive, one procedural -- that the district
court did not address separately. First, what does the Award mean?
Does it require payment for the hypothetical furlough period, or is
it ambiguous? Second, it is a separate question whether, if the
Award is ambiguous, Pan Am has forfeited its right to pursue its
interpretation of the Award.
We must determine whether each of these questions is for
the arbitrator or the court in the first instance.
1. What the Award Means
Implicit in the district court's holding that it could
not “change” the Award is the assumption that the Award “as issued”
meant what the Association said the Award meant. Though claiming
to avoid the issue of what the Award required, the court simply
adopted, without analysis or justification, the Association's
reading of it. That is, the holding assumes that the Award in fact
requires back pay for all days after January 13, 2002, and not just
those days that Selim would have been paid absent his wrongful
termination.
We find that Pan Am has raised a legitimate question as
to how the Award should be interpreted. The Award is naturally
silent as to how a furlough period should be treated, since that
issue was never raised before the Board. The Board's only
statement -- that Selim should “be reimbursed to service with
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retention of seniority” -- does not directly mention back pay, much
less address how it is to be calculated, in light of the
hypothetical furlough period or otherwise.
While the Board's opinion establishes that the award for
back pay is to begin 90 days after Selim's wrongful termination
(i.e., January 13, 2002), this need not mean that he is entitled to
be paid from that day forward, without regard to any changes in
circumstance or relevant external factors. Pan Am points out that
the Board approved disciplining Selim for his conduct (albeit less
harshly than it had originally done). Pan Am thus argues that it
is unreasonable to think the Board intended Selim to receive more
than he would have received had he never been fired, as would
happen here if he is paid for the hypothetical furlough period.
Instead, Pan Am argues that the back pay remedy should be
interpreted as a traditional “make-whole” remedy. It points to the
Agreement's provision that a pilot who has wrongly been held out of
service shall “be reinstated without loss of seniority, and shall
be paid for such time lost in an amount which he normally would
have earned had he been continued in service during such period.”
CBA Section 19(E)(1) (emphasis added). According to Pan Am, the
Board's Award should be understood as consistent with this remedial
provision. The “clear intent,” Pan Am says, “is for a wrongfully-
discharged employee to be reinstated and reimbursed so as to put
him in the position he would have been in if the termination had
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not taken place.” Here, Pan Am says, that cannot be accomplished
by paying Selim for a nine-month period when all other pilots of
his seniority level were on unpaid furlough.
Pan Am's construction of the Award is sufficiently
plausible for us to find the Award ambiguous with respect to how
back pay should be calculated in light of the furlough. Given
this, Pan Am's interpretation -- that back pay should be calculated
so as to put Selim in the position he would have been but for the
unlawful discharge -- is not inconsistent with the Award or
otherwise unreasonable. Cf. Roman v. Maietta Constr., Inc., 147
F.3d 71, 76-77 (1st Cir. 1998) (upholding deduction of compensatory
time from back pay award even though deduction was not statutorily
authorized; calculation was “fair and permissible,” and “plaintiffs
are entitled to be made whole, not to a windfall”); E. Me. Med.
Ctr. v. NLRB, 658 F.2d 1, 11 (1st Cir. 1981) (“caution[ing] the
Board to exercise care in calculating back pay to include only
those amounts that would have been granted but for the hospital's
unlawful conduct”). We therefore reject the district court's
conclusion that enforcing the Award “as issued” requires adopting
the Association's interpretation of it.
2. Procedural Objections to Clarification of the Award
Ordinarily, a dispute as to how to interpret an arbitral
award such as the present one should be remanded to, and resolved
by, the Board that issued it. Although the parties do not mention
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it, the Railway Labor Act4 requires arbitration agreements between
airlines and their employees to “provide that any difference
arising as to the meaning, or the application of the provisions, of
an award made by a board of arbitration shall be referred back for
a ruling to the same board, or, by agreement, to a subcommittee of
such board.” 45 U.S.C. § 158(m).
Where an attempt to “enforce” an award generates or
reveals a dispute requiring interpretation of the award's scope or
application, that dispute “must be referred to a reconvened board
of arbitration for determination.” W. Air Lines, Inc. v. Labor
Comm'r of Div. of Labor Law Enforcement, 167 F.2d 566, 567 (9th
Cir. 1948) (reversing district court order enforcing arbitration
award and directing remand to arbitrator for clarification of
award). See Locals 2222, 2320-2327, Int'l Bhd. of Elec. Workers v.
New Eng. Tel. & Tel. Co., 628 F.2d 644, 647 (1st Cir. 1980)
(confirming authority of courts to resubmit arbitration award to
original arbitrators for interpretation and affirming remand for
that purpose); see generally Stanton v. Delta Air Lines, Inc., 669
F.2d 833, 836 (1st Cir. 1982) (affirming remand for arbitration)
(“The policy favoring arbitration extends with particular force to
arbitration by system boards of adjustment[, which] . . . are
4
The provisions of the Railway Labor Act (with a few
exceptions not relevant here) “cover every common carrier by air
engaged in interstate or foreign commerce.” 45 U.S.C. § 181. The
applicable provisions include those requiring and governing
arbitration of employment disputes, including 45 U.S.C. §§ 157-159.
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created by the Railway Labor Act for the resolution of disputes
between an air carrier and its employees [and] are the mandatory,
exclusive and comprehensive system for resolving grievance
disputes.”) (internal citations and quotations omitted).
Moreover, the Award here expressly notes the retention of
“jurisdiction to resolve any financial matters if the parties are
unable to agree.” All this argues for remanding the question of
how the Award should be interpreted to the Board.
Nonetheless, the Association argues that the district
court properly found that “Pan Am's contention that Mr. Selim would
have been furloughed from September 2002 to June 2003 . . . was
untimely raised and therefore would not be considered.” It claims
that Pan Am “had an obligation to raise the matter” of whether
Selim would have been on furlough “before the System Board.”
Pan Am argues that “[n]othing in the Arbitration Decision
or ALPA's petition put [it] on notice of a claim for the
extraordinary relief of an award of back pay for unpaid furlough
time.” That is, since the Award is ambiguous, there is no reason
to charge Pan Am with any greater reason to anticipate the
Association's interpretation than the Association had to anticipate
Pan Am's interpretation. Thus, Pan Am argues that the district
court “penalize[d] [it] for failing to predict a highly unusual
interpretation of an arbitration award.”
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We cannot accept the parties' invitation to enter this
thicket and determine whether Pan Am's actions, or failures to act,
preclude it from seeking clarification of the Award from the Board.
The question of whether Pan Am has forfeited its right to have this
issue arbitrated is itself properly addressed initially to the
Board rather than to the federal courts.
Although it might not be apparent on the surface, at
bottom the question here is a classic one of procedural
arbitrability: is it for the court or the arbitrator to decide
initially whether a party is foreclosed from arbitrating a
particular issue, otherwise subject to arbitration? We have
addressed this question in related contexts: “issues of procedural
arbitrability are for the arbitrator to decide.” Local 285, Serv.
Employees Int'l Union v. Nonotuck Res. Assocs., Inc., 64 F.3d 735,
739 (1st Cir. 1995) (citing John Wiley & Sons, Inc. v. Livingston,
376 U.S. 543, 557 (1964)). “Once it is determined, . . . that the
parties are obligated to submit the subject matter of a dispute to
arbitration, ‘procedural’ questions which grow out of the dispute
and bear on its final disposition should be left to the
arbitrator.” John Wiley, 376 U.S. at 557. Such issues include
“whether [grievance] procedures have been followed or excused, or
whether the unexcused failure to follow them avoids the duty to
arbitrate.” Id.
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It is thus up to the Board to determine in the first
instance here whether Pan Am, by its conduct, forfeited its right
to argue that Selim was (or would have been) furloughed, or that
the back pay award does not (or should not) encompass the
hypothetical furlough period. These questions “grow out of the
dispute and bear on its final disposition.” Id. Barring Pan Am
from seeking remand to the Board based on conduct that is for the
Board to evaluate would interfere with the parties' agreed method
of resolving their disputes, and would not reflect the deference
federal courts owe arbitrators whose awards are before the courts
for enforcement.
Similarly, the factual issues the Association has raised
regarding whether Selim was, or would have been, on furlough for
the period in question are not for the federal courts to resolve.
For example, whether Pan Am was required to notify Selim of the
furlough and failed to do so, whether it failed to provide him with
benefits the Agreement required it to provide, and, if so, whether
it should be estopped from claiming he would have been furloughed
are all questions that go to the merits of the dispute and so
should be addressed to the Board. That such factual disputes might
exist does not foreclose us from causing the matter to be returned
to the Board.
Nor do we believe that the Association could prevail by
arguing that Pan Am forfeited its right to seek remand to the Board
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because of its failure to raise this issue earlier in federal court
(as opposed to before the Board). First, this was not the basis
for the district court's decision. Although the court criticized
Pan Am for failing to raise this issue earlier in federal court,
and adopted the Association's statement of facts because of Pan
Am's violation of Local Rule 7.2, the court did not treat this
conduct as grounds for procedural default. Instead, the court
rested its holding that Pan Am could not raise this “partial
defense” because it had not “raised this matter before the Board”
on the premises that: (1) any change to the Award could come only
from the Board; and (2) the Award “as issued” required payment
without any deduction for the furlough dates in question. We agree
with the former proposition, but not the latter. Indeed, it is
precisely because foreclosing Pan Am from making this argument
might change the Award -- by giving it an effect the Board never
intended -- that we hesitate to reach such a result unnecessarily.
While there may be some circumstances in which a party's conduct in
court can control or alter the resolution of a matter the parties
agreed to handle through arbitration, this is not such a case.
Pan Am's technical violation of Local Rule 7.2 does not
provide a reason to bar Pan Am from pursuing its interpretation of
the Award before the Board. We need not determine whether the
factual issues regarding the furlough were adequately raised below
or are properly in the record. Because we conclude that the
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parties' dispute must be resolved by the Board, not the federal
courts, what matters for our purposes is only the existence of the
dispute, not its merits. It is therefore irrelevant whether the
facts underlying the dispute are properly before us.
Although the Association suggests that Pan Am's argument
that the back pay award does not include the furlough time should
be considered an “affirmative defense” that Pan Am waived by not
pleading it in its answer, it does not explain why. Any action to
enforce an award necessarily (though often implicitly) involves the
question of how that award is to be interpreted. In a dispute
between two potentially plausible interpretations, there is no
basis for considering one interpretation an “affirmative defense.”
Pan Am's “failure” to include its interpretation in its answer or
as part of the discovery plan cannot justify taking away from the
Board the first opportunity to interpret the Award with respect to
a question the Board had not earlier confronted or anticipated.
Cf. Stanton, 669 F.2d at 838 (holding that airline's conduct was
“neither so shocking nor so likely to taint the workings” of the
arbitration board “that somehow [it] ought to be ‘estopped’ from
using grievance arbitration” in particular case).
For the foregoing reasons, the district court's opinion
is AFFIRMED in part and REVERSED in part, and this case is REMANDED
with directions that the district court remand the matter to the
original arbitration panel for clarification of the Award.
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