Brotherhood of Locomotive Engineers & Trainmen v. United Transportation Union , 700 F.3d 891 ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 12a0400p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
Petitioner-Appellant, --
AND TRAINMEN,
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No. 11-4177
,
>
-
v.
-
Defendant-Appellee, --
UNITED TRANSPORTATION UNION,
-
-
Respondent-Appellee. -
NORFOLK SOUTHERN RAILWAY COMPANY,
N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:10-cv-1532—Christopher A. Boyko, District Judge.
Decided and Filed: December 5, 2012
Before: GUY, DAUGHTREY, and STRANCH, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Michael S. Wolly, ZWERDLING, PAUL, KAHN & WOLLY, P.C.,
Washington, D.C., for Appellant. Clinton J. Miller III, Erika A. Diehl, UNITED
TRANSPORTATION UNION, North Olmsted, Ohio, John B. Lewis, Jeffrey R. Vlasek,
BAKER & HOSTETLER LLP, Cleveland, Ohio, for Appellees.
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OPINION
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JANE B. STRANCH, Circuit Judge. This appeal concerns a three-cornered
dispute between two unions—the Brotherhood of Locomotive Engineers and Trainmen
(BLET) and the United Transportation Union (UTU)—and an employer—the Norfolk
Southern Railway Company (Norfolk)—that bargains with both of them. UTU filed a
grievance on behalf of two of its members at Norfolk who alleged that they lost their
1
No. 11-4177 Bhd. Of Locomotive Eng’rs v. United Transp. Union, et al. Page 2
seniority upon promotion from trainmen to engineers. The trouble was that BLET’s
collective bargaining agreement (CBA), which they came under upon becoming
engineers, assigned seniority based on date of promotion to engineer rather than date of
hire as trainman. An arbitration board heard the grievance and decided in the
employees’ favor. BLET sought to vacate the arbitration award but was thwarted when
the district court granted summary judgment in favor of UTU and Norfolk. BLET now
appeals. Because the arbitration board acted within its authority, we AFFIRM.
I. OVERVIEW
A. Factual background
Understanding this dispute requires a brief foray into the arcane world of railroad
craft work. Norfolk’s “operating” employees, those who run the trains, are generally
divided into train service workers and engine service workers. Engineers are engine
service workers responsible for operating the locomotives. By contrast, train service
workers perform switching and other groundwork, such as separating cars and setting
hand brakes; their ranks include conductors and trainmen. BLET is the authorized
representative under the Railway Labor Act (RLA) for Norfolk’s locomotive engineers,
while UTU represents the company’s conductors and trainmen. Despite this craft-based
division of representation, an operating employee may pay dues to UTU or BLET and
have either union handle his grievances. See 45 U.S.C. § 152, Eleventh (c).
Norfolk requires all train service employees to advance to an engine service
position based on the company’s needs through its Locomotive Engineer Training
program (the Training program). UTU’s CBA governs the terms and conditions of a
train service employee’s work until he completes the Training program. After that point,
an employee is covered by BLET’s CBA when performing engine service work.
The underlying dispute here stems from a grievance UTU filed on behalf of two
of its members, H.N Stokes and E.E. Hall, who worked in Norfolk’s Virginia Division.1
1
The claim of a third employee was dismissed due to that employee’s resignation.
No. 11-4177 Bhd. Of Locomotive Eng’rs v. United Transp. Union, et al. Page 3
After completing the Training program, the men challenged their placement on an
engineer seniority roster, arguing they should be ranked in the order they became
trainmen, not in the order they ultimately became engineers.
Three sets of agreements—all of which were presented to the arbitration board
to resolve this matter—are relevant to this appeal: the national agreement between BLET
and Norfolk; the national agreements entered into by UTU and Norfolk; and the regional
arrangements to which BLET, UTU, and Norfolk agreed. With respect to the first set,
BLET and Norfolk entered into an agreement in 1980 addressing seniority rights of those
who completed the Training program (the 1980 BLET Agreement). Article 21(1)(g) of
that agreement establishes that the seniority of such employees as engineers “shall date
from day of promotion.” Article 21(1)(c), however, deviates from this order.
Addressing the relative seniority rights of those promoted to engineer “out of turn,” it
permits a senior trainman to displace a junior trainman promoted to be an engineer once
that senior trainman is available and other conditions are met.
Norfolk also has several national contracts with UTU that contain provisions
relevant to this dispute. The 1985 UTU National Agreement (the 1985 UTU Agreement)
requires the selection process for engine service to be based on “relative seniority
standing.” On March 7, 1988, UTU and Norfolk signed a Memorandum Agreement (the
1988 UTU Memo Agreement) that established selection and application guidelines for
employees entering the Training program. Eight years later, on January 26, 1996, UTU
and Norfolk changed the selection process in a new Memorandum Agreement (the 1996
UTU Memo Agreement), which required employees with train service seniority after
November 1, 1985 to attend the Training program “in order of their trainmen’s
seniority.” The 1996 Memo Agreement also defined geographic zones from which
employees in Norfolk’s Virginia Division would be sent to the Training program.2
2
The relevant portion of this agreement provided as follows:
For the purpose of determining the proper order for sending employees to [the Training
program] the following zones will be in effect on the Virginia Division.
a. Shenandoah – Hagerstown District and Shenandoah Yard.
b. Roanoke – Roanoke Terminal, Radford District, Roanoke District,
No. 11-4177 Bhd. Of Locomotive Eng’rs v. United Transp. Union, et al. Page 4
Finally, the third set of agreements relevant here are regional arrangements into
which BLET, UTU, and Norfolk entered. On February 11, 2002, UTU and Norfolk
entered into one such agreement governing the selection of trainmen for the Training
program in the zones of the Central Region Hub Network (the 2002 UTU Central Region
Agreement), which covers an area separate from the Virginia Division. It provided that,
“Employees with trainmen seniority after October 31, 1985 will be sent to [the Training
program] in seniority order from [the Training program] promotion zone where the
Carrier determines the engineer need exists.” Seniority order would be determined on
an “order of selection list . . . using [each Central Region Hub Network employee’s]
earliest trainm[a]n seniority date.” Two days later, on February 13, 2002, Norfolk and
BLET entered into a side letter agreement (the 2002 BLET Central Region Side Letter)
giving an employee in this area who was promoted to engineer a seniority rank based on
the date of his earliest trainman seniority date, not the date of his promotion to engineer.
Referring directly to the 2002 UTU Central Region Agreement, the 2002 BLET Central
Region Side Letter stated:
This refers to our discussion in conference regarding the proper
application of Article 21(1)(c) and (g) of the Engineers[’] Schedule
Agreement. During conference, it was agreed that subsequent to the date
of this understanding the proper application of this provision is that
employees on the Central Region Hub Network upon successful
completion of the Locomotive Engineer Training Program will remain
in the same relative order on the engineer’s seniority roster as they
appear on the order of selection list, outlined in paragraph 4(a) of the
Memorandum Agreement dated February 11, 2002.
Then, on August 16, 2006, UTU and Norfolk entered into a similar regional
agreement governing the selection of trainmen for the Training program in the zones of
the Pocahontas District (the 2006 UTU Pocahontas Agreement), which also covers an
area separate from the Virginia Division. This agreement was akin to the 2002 UTU
Central Region Agreement in all of its particulars. The same day, BLET and Norfolk
Winston-Salem District, Norfolk/West, Radford Yard, Bristol Yard.
c. Crewe – Norfolk/East, Crewe/Petersburg Yard, Suffolk Yard, NF&D District.
d. Norfolk – Norfolk Terminal.
No. 11-4177 Bhd. Of Locomotive Eng’rs v. United Transp. Union, et al. Page 5
entered into a side letter agreement (the 2006 BLET Pocahontas Side Letter) whose
language was nearly identical to the 2002 BLET Central Region Side Letter and
similarly referred to the UTU’s corresponding regional agreement. Thus, both side
letters granted engineer seniority based on the date of an employee’s earliest trainman
seniority.
On or about March 4, 2008, Norfolk proposed that the same arrangement apply
to the establishment of engineer seniority for the Virginia Division. BLET, however, did
not agree to this.
Stokes and Hall, the grievants in this case, started working for Norfolk in train
service jobs in the Virginia Division’s Crewe zone in July 1997. In January 2005, they
were required to attend the Training program that would supply engineers for that zone.
After they completed the program, they were placed on a Virginia Division engineer
seniority roster according to the date they began the Training program. This placed them
behind two co-workers from the Roanoke zone, another part of the Virginia Division,
each of whom began working as a trainman at or after the time Stokes and Hall started
in that position. One of those co-workers started as a trainman in March 1997 and
established engineer seniority in July 1998, when he was selected for the Training
program due to Norfolk’s need for engineers in the Roanoke zone. The second co-
worker became a trainman in August 1997 and established engineer seniority in August
1998. Stokes and Hall, in short, had six fewer years of engineer seniority than these two
individuals, despite the fact that all four men began working as trainmen at roughly the
same time.
B. Procedural history
UTU took exception to the seniority assigned to Stokes and Hall and filed a
grievance on their behalf asserting that each should be ranked in the same relative order
as his train service seniority. The claim was progressed and eventually referred to Public
Law Board No. 7310 (the Board), an arbitration panel created to resolve the dispute
pursuant to an agreement UTU and Norfolk entered into on April 6, 2009 (the
Arbitration Agreement). The Arbitration Agreement limited the jurisdiction of the
No. 11-4177 Bhd. Of Locomotive Eng’rs v. United Transp. Union, et al. Page 6
Board to those grievances Stokes and Hall “submitted to [the Board] under this
agreement, arising out of the interpretation or application of applicable agreements
between [Norfolk] and the employees of [Norfolk] represented by [UTU] governing
rates of pay, rules or working conditions.” It further stated the Board would not have
“jurisdiction of disputes growing out of requests for changes in rates of pay, rules or
working conditions nor have authority to change existing agreements or establish new
rules.”
Although the dispute was technically between UTU and Norfolk, BLET was
invited to participate in the Board proceedings as a third party since the Board would
have to determine the interplay of the seniority provisions in BLET’s CBA with those
in UTU’s. Anticipating this, Paragraph 8 of the Arbitration Agreement detailed how the
Board would deal with non-UTU CBAs involved in the grievance. In pertinent part, it
stated:
If any claim or grievance involves an employee or work subject to any
rule contained in an agreement other than that under the administrative
jurisdiction of the General Committee of Adjustment progressing the
dispute hereunder, such claim or grievance will be disposed of under the
recognized interpretation placed upon the schedule rule involved by the
Carrier and the General Committee of the Organization signature [sic] to
that agreement; and the Board shall forthwith make written request for
the delivery to it of such interpretation within 30 days. In the absence of
such established interpretation placed upon the schedule rule involved,
the award issued in resolving the claim or grievance shall not constitute
a precedent as to the interpretation or application of such schedule rule.
For its part, BLET presented a third party submission to the Board and
participated in oral argument during the hearing. BLET also agreed to allow UTU to
take the claims to arbitration and acceded to the selection of the neutral member of the
Board. All of the UTU and BLET agreements described above were submitted to the
Board.
The Board sustained the claims of Stokes and Hall and ordered that they be
ranked on the seniority roster “according to their train service seniority,” without regard
to the dates on which they had actually been promoted to locomotive engineer. Relying
No. 11-4177 Bhd. Of Locomotive Eng’rs v. United Transp. Union, et al. Page 7
on Article 21 in the 1980 BLET Agreement, as well as the regional agreements entered
into by Norfolk, UTU, and BLET, the Board reasoned:
To this Board the language utilized in the February 13, 2002 Side Letter
Agreement [between BLET and Norfolk respecting the Central Region],
which accompanied the February 11, 2002 establishment of an order of
selection list for the Central Hub Region Network [between UTU and
Norfolk], is critical. It specifically described the “proper application of
Article 21” with respect to employee ranking on the engineers seniority
roster. Identical language was utilized in a BLET Side Letter to the 2006
Pocahontas Division Order of Selection Agreement. Both of these
Agreements were amendments to the January 26, 1996 Letter of
Understanding [between UTU and Norfolk], which established the order
of selection list for the Virginia Division, [and] were not stand alone
agreements. Therefore, the Board finds that they merit consideration
with respect to the instant dispute. After examining the contract
language and the language contained in the amendments to this
agreement, the Board finds that effective February 13, 2002 [the date the
first BLET-Norfolk side letter was signed], the ranking of employees
selected for [the Training program] in accordance with an order of
selection list permitted under the provisions of the 1996 Letter of
Understanding [between UTU and Norfolk], or any modifications
thereto, should have been accomplished according to their relative
train-service seniority ranking.
On July 9, 2010, BLET filed a Complaint and Petition for Review against
Norfolk and UTU seeking to vacate the Board’s award pursuant to Section 3 First (q) of
the RLA, 45 U.S.C. § 153 First(q). The parties moved for summary judgment. The
magistrate judge filed a Report and Recommendation vacating the Board’s award on
July 14, 2011. After objections to the magistrate’s Report and Recommendation were
filed, the district court overruled the magistrate’s decision and reinstated the Board’s
award, denied BLET’s motion for summary judgment, and granted Norfolk’s and UTU’s
motions for summary judgment. BLET timely appealed. We have appellate jurisdiction
pursuant to 28 U.S.C. § 1291 because the district court’s order is an appealable final
decision.
No. 11-4177 Bhd. Of Locomotive Eng’rs v. United Transp. Union, et al. Page 8
II. ANALYSIS
A. Standard of review
“This Court reviews a district court’s grant of summary judgment in a labor
arbitration dispute de novo.” Totes Isotoner Corp. v. Int’l Chem. Workers Union
Council/UFCW Local 664C, 532 F.3d 405, 410 (6th Cir. 2008) (citation omitted).
Summary judgment is appropriate if the evidence, when viewed in the light most
favorable to the nonmoving party, shows that there is no genuine issue of material fact
such that the moving party is entitled to judgment as a matter of law. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Where the court reviews
de novo the district court’s decision to enforce or vacate an arbitrator’s award, “the focus
is on the arbitrator’s analysis, not that of the district court.” Truck Drivers Local No.
164 v. Allied Waste Sys., Inc., 512 F.3d 211, 216 (6th Cir. 2008).
B. Legal framework
1. Review of arbitration decisions under the RLA
The RLA governs disputes between management and labor in the railroad
industry. See 45 U.S.C. §§ 151, 153. Congress included a mandatory arbitral
mechanism in the statute to efficiently resolve labor disputes, promote stability in the
relationship between rail companies and their employees, and keep such disputes out of
the courts. Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 94 (1978). The mandatory
arbitration scheme Congress established is unique to the RLA and is not found in the
other major federal labor relations statute that covers private sector employees. See
National Labor Relations Act, 29 U.S.C. § 151 et seq.
The RLA procedure provides for settlement of so-called minor disputes through
contractual grievance procedures.3 See 45 U.S.C. § 152 First, Second. Failure to resolve
a minor dispute through such procedures triggers compulsory and binding arbitration by
3
Minor disputes concern the interpretation of existing CBAs. They are distinct from major
disputes, which pertain to CBA formation. See Consol. Rail Corp. v. Ry. Labor Execs. Ass’n, 491 U.S.
299, 302–03 (1989).
No. 11-4177 Bhd. Of Locomotive Eng’rs v. United Transp. Union, et al. Page 9
the National Railroad Adjustment Board (NRAB) or a privately established “special
adjustment board,” such as the Public Law Board in this case. See 45 U.S.C. § 153 First
(i); 45 U.S.C. § 153 Second. NRAB awards are “final and binding” on all parties.
45 U.S.C. § 153 First (m).
A party may appeal an arbitration decision, 45 U.S.C. § 153 First (q), but the
court’s review is “among the narrowest known to the law,” Airline Prof’ls Ass’n of Int’l
Bhd. of Teamsters, Local Union No. 1224, AFL-CIO v. ABX Air, Inc., 274 F.3d 1023,
1030 (6th Cir. 2001) (citation omitted). Court review of NRAB awards is limited to
three specific grounds: “(1) failure of the Adjustment Board to comply with the
requirements of the Railway Labor Act; (2) failure of the Adjustment Board to conform,
or confine, itself to matters within the scope of its jurisdiction; and (3) fraud or
corruption.” Sheehan, 439 U.S. at 93 (citing 45 U.S.C. § 153 First (q)). The same
standards that govern review of an NRAB award apply when a court reviews an award
issued by a “special adjustment board.” Cole v. Erie Lackawanna Ry. Co., 541 F.2d 528,
531–32 (6th Cir. 1976). Finally, in reviewing the decisions of RLA-created arbitration
boards, the Sixth Circuit has instructed courts to “bear in mind the very narrow standard
of review that federal courts are to employ when reviewing [labor] arbitration awards.”
ABX Air, Inc., 274 F.3d at 1030 (applying the standard for federal court review of labor
arbitration awards to a dispute under the RLA to determine whether the arbitrator’s
award “fails to draw its essence from the terms of the collective bargaining agreement”).
2. Limited review of labor arbitration decisions
More than a half century ago, the Supreme Court observed that a determination
of the “proper approach” for courts to review labor arbitration awards requires a
sensitivity to what makes CBAs fundamentally different from contracts between private
parties. While a CBA “states the rights and duties of the parties” like any other contract,
“[i]t is more than a contract; it is a generalized code to govern a myriad of cases which
the draftsmen cannot wholly anticipate.” United Steelworkers of Am. v. Warrior & Gulf
Nav. Co., 363 U.S. 574, 578 (1960) (citation omitted). A CBA’s objective is “to erect
a system of industrial self-government” that permits the relationship between the parties
No. 11-4177 Bhd. Of Locomotive Eng’rs v. United Transp. Union, et al. Page 10
to be “governed by an agreed-upon rule of law.” Id. at 580. Unlike a regular contract,
a CBA “covers the whole employment relationship,” id. at 579, where “‘[t]here are too
many people, too many problems, too many unforeseeable contingencies to make the
words of the contract the exclusive source of rights and duties,’” id. (quoting Archibald
Cox, Reflections Upon Labor Arbitration, 72 Harv. L. Rev. 1482, 1498–99 (1959)). As
a result, its effectuation demands the development of “‘a common law of the shop
which implements and furnishes the context of the agreement.’” Id. at 580 (quoting Cox,
72 Harv. L. Rev. at 1499).
“Arbitration is the means of solving the unforeseeable by molding a system of
private law for all the problems which may arise . . . . The processing of disputes through
the grievance machinery is actually a vehicle by which meaning and content are given
to the [CBA].” Id. at 581. Rather than signaling the “breakdown in the working
relationship of the parties,” as it does in a commercial setting, labor arbitration “is at the
very heart of the system of industrial self-government.” Id.
The Supreme Court recognized that the federal policy “to promote industrial
stabilization through the [CBA],” id. at 578, “would be undermined if courts had the
final say on the merits of [arbitration] awards,” United Steelworkers of Am. v. Enterprise
Wheel & Car Corp., 363 U.S. 593, 596 (1960). The “proper approach,” therefore, is for
courts to refuse to review the merits of an arbitration award. Id. “The courts . . . have
no business weighing the merits of the grievance, considering whether there is equity in
a particular claim, or determining whether there is particular language in the written
instrument which will support the claim.” United Steelworkers of Am. v. Am. Mfg. Co.,
363 U.S. 564, 568 (1960) (footnote omitted). Their role is only “to ascertain[] whether
the party seeking arbitration is making a claim which on its face is governed by the
contract.” Id.As a practical matter, such limited review respects the intent of the parties who
specifically bargained for “[the arbitrator’s] judgment and all that it connotes.” Id. Still,
an arbitrator’s authority has limits. He is “confined to interpretation and application of
the [CBA],” and he exceeds the scope of his authority when he “dispense[s] his own
No. 11-4177 Bhd. Of Locomotive Eng’rs v. United Transp. Union, et al. Page 11
brand of industrial justice.” Enterprise Wheel, 363 U.S. at 597. In the final analysis, his
judgment must not be disturbed “so long as it draws its essence from the [CBA].” Id.In the years since the Supreme Court decided these cases—collectively known
as the Steelworkers Trilogy—the Court revisited the standard of review of arbitration
awards in two decisions, United Paperworkers International Union, AFL-CIO v. Misco,
Inc., 484 U.S. 29 (1987), and Major League Baseball Players Association v. Garvey,
532 U.S. 504 (2001). In Michigan Family Resources, Inc. v. Service Employees
International Union Local 517M, we explained that Misco and Garvey “refine the
Steelworkers Trilogy in two ways.” 475 F.3d 746, 752 (6th Cir. 2007) (en banc). First,
they make clear that the standard between permissible and impermissible arbitration
awards is based on “whether ‘the arbitrator is even arguably construing or applying the
contract and acting within the scope of his authority.’” Id. at 752–53 (quoting Misco,
484 U.S. at 38, and citing Garvey, 532 U.S. at 509). Second, the decisions confirm that
an arbitrator’s errors in resolving the merits of the dispute—be they “‘serious,’
‘improvident’ or even ‘silly’”—are of no moment “once it [is] established that the
arbitrator was construing or applying the contract.” Id. at 753 (quoting Misco, 484 U.S.
at 38–39, and citing Garvey, 532 U.S. at 509–10).
Michigan Family brought the Sixth Circuit into line with Supreme Court
precedent by expressly overruling the four-part test governing review of arbitration
agreements that we articulated in Cement Divisions, National Gypsum Co. (Huron) v.
United Steelworkers of America, AFL-CIO-CLC, Local 135, 793 F.2d 759, 766 (6th Cir.
1986). Id. For purposes of this appeal, it is important to review why the Cement
Divisions inquiry is no longer good law. Cement Divisions held that an award “fails to
derive its essence from the agreement” when it (1) conflicts with the CBA’s express
terms; (2) imposes requirements not expressly provided for in the agreement; (3) lacks
rational support or is not rationally derived from the CBA’s terms; and (4) is based on
considerations of fairness and equity rather than the agreement’s precise terms. 793 F.2d
at 766. Cement Divisions’s refusal to recognize that the words of a CBA are not the
exclusive source of rights and duties under it, contra Warrior & Gulf, 363 U.S. at 579,
No. 11-4177 Bhd. Of Locomotive Eng’rs v. United Transp. Union, et al. Page 12
as well as its insistence that a court could vacate an arbitrator’s award based solely on
its disagreement with his reading of a contract, made it incompatible with Supreme
Court authority.
Michigan Family harmonized our review of arbitral decisions in the labor context
with Garvey and Misco. In Michigan Family, we held that judicial review is confined
to deciding whether a “procedural aberration” was present in the arbitration process, and
must not focus on matters of substantive interpretation and the outcome an arbitrator
reached. 475 F.3d at 753. Michigan Family requires us to defer to the arbitrator’s
decision unless the arbitrator 1) acted outside his authority by resolving a dispute not
committed to arbitration; 2) committed fraud, had a conflict of interest, or otherwise
acted dishonestly in issuing the award; or 3) was not even “arguably construing or
applying the contract” in resolving legal or factual disputes. Id. Perhaps anticipating
that clever parties would attempt to recast a disagreement with an arbitrator’s decision
as a claim that he acted outside of his authority, Michigan Family “severely curtailed the
‘scope of authority’ concept.” Allied Waste Sys., 512 F.3d at 217. “An arbitrator does
not exceed his authority every time he makes an interpretive error; he exceeds that
authority only when the [CBA] does not commit the dispute to arbitration.” Mich.
Family Res., 475 F.3d at 756 (emphasis added).
Michigan Family emphasized that “only the most egregious awards [would] be
vacated” under the “arguably construing” standard. Id. at 753. Properly articulated, the
analysis focuses on a single question: did “the arbitrator appear[] to be engaged in”
interpreting the agreement or agreements before him? Id. If so, the court’s inquiry ends.
If it is unclear, the court “will presume that the arbitrator was doing just that.” Id. With
the window so narrowed, a court may vacate an award only in the “rare exception” when
the arbitrator was “so ignorant of the contract’s plain language” that “any contention that
the arbitrator was construing the contract” is “implausible.” Id. (internal quotations,
internal citation, and alteration omitted). Put otherwise, if the arbitrator’s construction
is plausible, it must not be disturbed. Accordingly, the outer limits of the “arguably
construing” inquiry are reached only when the arbitrator’s decision is “‘so untethered
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to’” the agreements at issue, id. at 752 (quoting Garvey, 532 U.S. at 512 (Stevens, J.,
dissenting)), that he enters “the forbidden world of ‘effectively dispensing his own
brand of industrial justice,’” id. (citation, alteration, and internal quotations omitted).
But what of the deference due to an arbitrator’s interpretation of the issues
submitted to him? By what standard are courts to review a party’s claim that an
arbitrator exceeded his authority because he decided issues the parties did not submit to
him, or relied on materials the parties did not present? Although Michigan Family was
silent on this matter, our case law is clear that an arbitrator’s authority is not strictly
confined to the “technical limits of the submission.” Int’l Ass’n of Machinists &
Aerospace Workers v. Tenn. Valley Auth., 155 F.3d 767, 772 (6th Cir. 1998) (internal
quotations and citation omitted). This court has reasoned:
Considering the strong presumptions in favor of a party’s right to
arbitration and the extent of an arbitrator’s authority, it would be a
strange and grudging interpretation of [the] Steelworkers Trilogy to
demand that arbitrators stay narrowly within the technical limits of the
submission . . . . [T]he presumption of authority that attaches to an
arbitrator’s award applies with equal force to his decision that his award
is within the submission.
Johnston Boiler Co. v. Local Lodge No. 893, Int’l Bhd. of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers & Helpers, AFL-CIO, 753 F.2d 40, 43 (6th Cir. 1985).
Further, Supreme Court precedent and the realities of the privately negotiated
system of workplace law support application of the same standard for several reasons.
First, more searching judicial review of arbitration submissions undermines the
congressional policy in favor of quick and inexpensive means of settling workplace
grievances to “achieve the twin goals of industry stabilization and industrial peace.”
Titan Tire Corp. of Bryan v. United Steelworkers of Am., Local 890L, 656 F.3d 368, 372
(6th Cir. 2011) (citing Warrior & Gulf, 363 U.S. at 578–79). Second, because
determining the scope of the submission often requires recourse to the CBA itself, it
would be inconsistent to defer to the arbitrator’s ultimate determination of the CBA’s
meaning but not to his determination of the scope of a submission based on the same
CBA terms. Third, a deferential standard protects the judiciary from having to
No. 11-4177 Bhd. Of Locomotive Eng’rs v. United Transp. Union, et al. Page 14
determine, on a case-by-case basis, the precise scope of a submission in the countless
disputes that regularly occur in the course of industrial self-government. Finally, by
denying parties a backdoor to seek review of adverse arbitration awards, a deferential
standard properly constrains the judiciary’s power to interfere in the privately negotiated
labor arbitration system.
C. Application
Of the three statutory bases available under the RLA to challenge the award,
BLET alleges only that the award fails to conform or confine itself to matters within the
Board’s jurisdiction, in violation of 45 U.S.C. § 153 First (q). The union does not press
any other grounds under the RLA. Thus, only the first and third parts of the Michigan
Family analysis guide our resolution of the jurisdictional matter, as BLET has not
alleged fraud, dishonesty, or a conflict of interest on the Board’s part. Accordingly, we
first consider whether the Board acted outside its authority by resolving a dispute not
committed to arbitration, and subsequently determine whether it was “arguably
construing or applying” the contracts before it.
1. The scope of the Board’s authority
The Board did not exceed its authority by resolving a dispute not committed to
arbitration. No party disputes that UTU and Norfolk properly submitted this seniority
dispute to the Board pursuant to the Arbitration Agreement between them. And BLET
concedes, as it must, that the CBA committed the seniority dispute to the Board. Instead,
BLET makes a two-pronged attack on the Board’s view of its own authority as defined
by the issues submitted to it. BLET first argues that the Board overstepped its authority
by failing to adopt the “recognized interpretation” BLET and Norfolk placed on Article
21, the seniority provision in BLET’s CBA, as required by Paragraph 8 of the Arbitration
Agreement. The language BLET now dubs the “recognized interpretation” states, in
pertinent part: “[Norfolk] has maintained that [Article 21] is the controlling agreement
for placing engineers on the [seniority] roster . . . and is therefore the prevailing
agreement for establishing Claimant’s engine seniority . . . . [BLET] agree[s] with
No. 11-4177 Bhd. Of Locomotive Eng’rs v. United Transp. Union, et al. Page 15
[Norfolk].” BLET concludes that this “recognized interpretation” confined the Board’s
interpretive reach and made impermissible any deviation from it.
This argument fails, though, because BLET cannot show the parties so clearly
delimited the meaning of Article 21 as to make the Board’s interpretation of it
unsupportable. First, Norfolk and BLET did not unambiguously fix the meaning of
Article 21. Paragraph 8 does not define what a “recognized interpretation” is or indicate
where the Board is to find it. Also, neither BLET’s nor Norfolk’s submissions refer to
the “recognized interpretation” of Article 21 or direct the Board to apply one. Second,
it is not clear that Paragraph 8’s purpose is to impose the “recognized interpretation” of
Article 21 on the Board. Paragraph 8, read as a whole, can be understood to describe the
circumstances in which an arbitration award “constitute[s] a precedent as to the
interpretation or application of [a] schedule rule.” When viewed in this light, Paragraph
8 instructs that an award that applies the “recognized interpretation” of a rule has
precedential value, but lacks it when the “recognized interpretation” is not used
(because, for example, the parties cannot agree to one or simply fail to provide it to the
Board).
This is not to say that Paragraph 8 does not have the meaning BLET wishes it to
have. But it is to say that Paragraph 8 has more than one plausible meaning. And when
confronted with an ambiguous term, it is not beyond the Board’s power to determine a
meaning that finds support in the language of the agreement. Undoubtedly, parties may
“limit the arbitrator’s authority by careful drafting of the submission.” Johnston Boiler
Co., 753 F.2d at 43 (citation omitted). Here, though, they did not. Having submitted to
the Board a seniority dispute that required it to interpret several contract provisions,
including Article 21, the parties failed to unambiguously limit the Board’s power to
construe them in service of settling the underlying seniority issue. Because the Board’s
determination of the issues submitted to it for decision is due the same deference as its
award on the merits, and because the Board did not cross any clear line the parties set
before it, the Board did not exceed its jurisdiction.
No. 11-4177 Bhd. Of Locomotive Eng’rs v. United Transp. Union, et al. Page 16
BLET’s second argument is that the Board acted outside of its authority because
its award invaded BLET’s representational province. Specifically, BLET contends that
the Board was not permitted to alter BLET’s agreement by allowing the provisions of
UTU’s agreement to control the seniority of BLET members. We disagree. BLET takes
too cramped a view of the Board’s job in this case. The Arbitration Agreement required
the Board to interpret the “applicable agreements” between Norfolk and the employees
represented by UTU. Due to the unique structure of representation in the railroad
industry, which permits a trainman or engineer to join either UTU or BLET, see
45 U.S.C. § 152 Eleventh (c), UTU represented the grievants but BLET’s contract
governed their terms and conditions of work when they were promoted. As a
consequence, the Board could not resolve the dispute in a vacuum.
Norfolk’s duties to the grievants under the BLET contract depend on how its
seniority terms mesh with those in UTU’s agreement. The Board perceived a conflict
between UTU’s agreement, which protected an employee from losing seniority if he was
not selected for the Training program through no fault of his own, and the application
of BLET’s agreement, which led to that precise result here. It also took into account the
provision in UTU’s contract that precluded Norfolk from assigning the grievants
seniority dates behind those with less train service seniority.
At bottom, the Board reconciled competing contract terms and the parties’
practices to determine the “common law of the shop.” The Board understood that both
contracts govern Norfolk’s relationship with its trainmen who later are required to be
trained as engineers. And it concluded that Norfolk’s agreements with UTU and BLET
needed to be construed where the two contracts failed to provide the grievants a seamless
transition from the terms that governed them as trainmen to the provisions that ruled
them as engineers. In deciding that one contract was modified by another, and by the
parties’ actions, the Board engaged in ordinary CBA construction. The Board’s
interpretation of the two unions’ contracts did not exceed its jurisdiction.
Finally, we decline to decide whether BLET waived its claims when it failed to
challenge the jurisdiction of the Board before it filed this action in federal court. We
No. 11-4177 Bhd. Of Locomotive Eng’rs v. United Transp. Union, et al. Page 17
observe, though, that BLET’s extensive participation before and during the
hearing—agreeing to allow UTU to take the claims to arbitration, consenting to the
selection of the neutral Board member, filing a formal submission, and presenting oral
argument—suggests that BLET submitted to the Board’s authority to interpret the
agreements before it, which included BLET’s Article 21. Be that as it may, we do not
decide whether BLET waived its rights in this circumstance.
In sum, under the facts of this case, we conclude that the Board did not exceed
its jurisdiction. Because the Board’s view of the issues it must decide is due the same
deference as its award on the merits, and because it did not cross any clear line the
parties set before it, the Board did not exceed its authority when it interpreted the
seniority provision in BLET’s CBA. Moreover, the Board’s award did not encroach
upon BLET’s representational province because its interpretation of the grievants’ rights
under the UTU agreement required consideration of the BLET agreement, and vice
versa.
2. The Board’s application of the contract provisions
We next consider whether the Board was “arguably construing or applying” the
contract in resolving the dispute, and conclude that the Board’s award was not so
ignorant of or so untethered from the engineer seniority rule at issue “as to make
implausible any contention that the arbitrator was construing the contract.” Mich.
Family Res., 475 F.3d at 753.
Michigan Family instructs us to analyze both the form and substance of the
Board’s actions to determine if it was “arguably construing” the materials before it.
Matters of form focus on whether the arbitrator was engaged in the act of interpretation.
In Michigan Family, we observed: the “arbitrator’s ten-page opinion has all the
hallmarks of interpretation. He refers to, quotes from and analyzes the pertinent
provisions of the agreement, and at no point does he say anything indicating that he was
doing anything other than trying to reach a good-faith interpretation of the contract.” Id.
at 754.
No. 11-4177 Bhd. Of Locomotive Eng’rs v. United Transp. Union, et al. Page 18
Here, too, the Board’s four-page opinion refers to and analyzes provisions from
multiple agreements. It acknowledges the geographic limitations of the side letters and
recognizes that a similar side letter was never executed in connection with the area
where the grievants worked. The Board also discusses whether the BLET-Norfolk side
letters’ allowance for “date of hire” engineer seniority in two geographic areas supports
UTU’s claim for the same rule in a third. After considering the meaning and interplay
of these CBA provisions, the Board announced its decision. Whether its decision is right
or not, the Board was clearly engaged in interpretation.
BLET does not seriously dispute that the Board actually interpreted the
agreements placed before it. Instead, BLET attacks the merits of the award, insisting
that no arguable construction of its agreements with Norfolk supports the Board’s
decision. BLET’s arguments have some appeal, as the side letters by their terms appear
to be limited to certain geographic areas. However, while BLET offers one possible
reading—perhaps even a better reading than the Board rendered—it is not the only
possible reading. The side letters do not unambiguously state that the “date of hire”
seniority rule does not apply to other geographic areas. For example, the reference in
the first sentence to “the proper application of Article 21(1)(c) and (g)” may refer to an
updated meaning of Article 21(1) that applies to all BLET-represented employees.
Under this view, which appears to be how the Board interpreted the phrase, the 2002
BLET Central Region Side Letter revised the meaning of seniority order terms in the
1980 BLET Agreement to reflect subsequent practices. This newer meaning, applicable
to all employees under BLET’s agreement, was initially implemented by the 2002 BLET
Central Region Side Letter only with respect to the employees in the named area, and
subsequently administered in another region in 2006.
Moreover, the fact that BLET refused to accede to a similar side letter for the
area where the two grievants work does not do the work BLET hopes. Failure to enter
into a third side letter does not change the operative language of the first two, which the
Board interpreted to permit “date of hire” seniority for the grievants. While BLET’s
No. 11-4177 Bhd. Of Locomotive Eng’rs v. United Transp. Union, et al. Page 19
refusal may be further evidence supporting its position, the Board’s award makes clear
that it considered—and rejected—the significance BLET attached to it.
In sum, the Board offered an interpretation that construed an ambiguity it
perceived in BLET’s contractual provisions in light of the parties’ practices and
language in both unions’ agreements. It is not our job to determine whether the Board’s
reading is the best reading. And we need not resolve whether we would offer the same
interpretation if we were to decide the dispute in the first instance. Our task is limited
to asking whether the Board’s interpretation was so ignorant of or untethered from the
agreements “as to make implausible any contention that the arbitrator was construing the
contract.” Id. at 753. Here, we are confident that the Board’s interpretation was built
of the raw materials it considered.
Finally, we allow the Board’s award to stand to give effect to the Congressional
policy of respecting arbitration of collective bargaining disputes, both generally and as
specifically articulated in the RLA. The parties here bargained for “the ‘arbitrator’s
construction,’ not three layers of federal judicial review.” Id. at 756. We must defer to
“that delegation of decision-making authority.” Id.III. CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the district court.