Boston & Maine v. Brotherhood

• Court: Court of Appeals for the First Circuit
• Decided: August 30, 1996
• Docket: 95-2344
• Status: Published

Opinion

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).



                                         -7-



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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