Brotherhood of Locomotive Engineers & Trainmen, General Committee of Adjustment v. Union Pacific Railroad

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2913
B ROTHERHOOD OF L OCOMOTIVE E NGINEERS AND
T RAINMEN , G ENERAL C OMMITTEE OF A DJUSTMENT,
C ENTRAL C ONFERENCE,
Plaintiff-Appellant,
v.
U NION P ACIFIC R AILROAD C OMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 11 C 07392—Matthew F. Kennelly, Judge.
A RGUED JANUARY 14, 2013—D ECIDED JUNE 21, 2013
Before E ASTERBROOK, Chief Judge, H AMILTON, Circuit
Judge, and M ILLER, District Judge.Œ
H AMILTON, Circuit Judge. A 1952 collective bargaining
agreement still governs aspects of the employment of
Œ
The Honorable Robert L. Miller, Jr. of the Northern District
of Indiana, sitting by designation.
2 No. 12-2913
some members of plaintiff Brotherhood of Locomotive
Engineers and Trainmen, including attendance and leave
policy. In 2003 defendant Union Pacific Railroad adopted
a new attendance policy. The union demanded arbitra-
tion under the Railway Labor Act, contending that the
new attendance policy conflicted with the 1952 Agree-
ment. An arbitrator found that Union Pacific’s 2003
attendance policy did not conflict with the 1952 Agree-
ment. The union then sued to vacate the arbitration
award. The district court granted summary judgment
against the union. Bhd. of Locomotive Eng’rs & Trainmen
v. Union Pac. R.R. Co., 882 F. Supp. 2d 1032, 1042 (N.D. Ill.
2012). The union has appealed. It argues that the arbi-
trator exceeded his jurisdiction by failing to interpret
the 1952 Agreement in his award. We affirm.
I. Standard of Review
This court reviews the district court’s decision on a
motion for summary judgment de novo. United Food &
Commercial Workers v. Illinois-American Water Co., 569
F.3d 750, 754 (7th Cir. 2009). In reviewing the award of
an arbitrator acting under the terms of the Railway
Labor Act, see 45 U.S.C. § 153 First (q), we apply one of
the most deferential standards of judicial review in all of
federal law. See Lyons v. Norfolk & Western Ry. Co., 163
F.3d 466, 469 (7th Cir. 1999).
In enacting the Railway Labor Act, “Congress endeav-
ored to promote stability in labor-management relations
in this important national industry by providing effective
and efficient remedies for the resolution of railroad-
No. 12-2913 3
employee disputes arising out of the interpretation of
collective-bargaining agreements . . . . Congress considered
it essential to keep these so-called ‘minor’ disputes within
the Adjustment Board and out of the courts.” Union Pac.
R.R. v. Sheehan, 439 U.S. 89, 94 (1978) (internal citations
omitted). A reviewing court therefore may disturb an
arbitration award only if the arbitrator did not comply
with the Railway Labor Act, exceeded the arbitral juris-
diction, or committed fraud. Id. at 93; see also 45 U.S.C.
§ 153 First (q); Bhd. of Locomotive Eng’rs & Trainmen v.
Union Pac. R.R. Co., 707 F.3d 791, 794-95 (7th Cir. 2013).
The only issue here is whether the Special Board of
Adjustment arbitrator exceeded his jurisdiction. Arbitra-
tors exceed their jurisdiction if they fail to interpret the
collective bargaining agreements between the parties.
Lyons, 163 F.3d at 469 (“To remain within the scope of
its jurisdiction, the essence of the [arbitrator]’s decision
must be contained in the terms of the agreement between
the union and the employer.”). They do not exceed their
jurisdiction if they make a mistake in interpreting a
collective bargaining agreement. Lawyers and judges
who believe they see an error of reasoning or interpreta-
tion by an arbitrator are often tempted to try to correct
such errors. Such error correction is not the function of
judicial review of arbitration awards under the Railway
Labor Act. That is why we have said many times that
the question “is not whether the arbitrator or arbitrators
erred in interpreting the contract; it is not whether
they clearly erred in interpreting the contract; it is not
whether they grossly erred in interpreting the contract; it
is whether they interpreted the contract.” Hill v. Norfolk &
4 No. 12-2913
W. Ry. Co., 814 F.2d 1192, 1195 (7th Cir. 1987); see also
United Food & Commercial Workers, 569 F.3d at 754(“An arbitrator’s decision draws its essence from the
contract if it is based on the arbitrator’s interpretation
of the agreement, correct or incorrect though that inter-
pretation may be.”).
Arbitrators fail to interpret an agreement when they
ignore the text of the agreement and instead rely on their
own notions of justice. United Steelworkers of America v.
Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960) (“[A]n
arbitrator is confined to interpretation and application
of the collective bargaining agreement; he does not sit to
dispense his own brand of industrial justice.”). The law
does not, however, ban arbitrators from considering
the interests at stake and relevant policy goals in coming
to their decisions. Thus the question for this court is
whether the arbitrator interpreted the parties’ collective
bargaining agreement and reached a tenable result from
the text of the agreement, not whether the arbitrator
considered other factors in interpreting the agreement
or erred in his interpretation. See Amax Coal Co. v. United
Mine Workers of America, 92 F.3d 571, 575-76 (7th Cir.
1996); Hill, 814 F.2d at 1194-95.
II. The Disputed Attendance Policy
The union argues that the arbitrator exceeded his juris-
diction by failing to interpret the 1952 Agreement in
determining whether the railroad could implement its
2003 attendance policy. The 1952 Agreement was signed
No. 12-2913 5
by the Missouri Pacific Railroad Company and two
unions, including the plaintiff, which is now known as
the Brotherhood of Locomotive Engineers and Trainmen.
Union Pacific Railroad merged with the Missouri Pacific
Railroad in 1982, and the agreement now binds Union
Pacific. The 1952 Agreement has no expiration date.
To set the stage, we must first explain the term “lay-off”
in the railroad business. The term refers not to involuntary
terminations of employment, as in most industries, but
to an employee’s voluntary decision to take unpaid time
off. Trains are dangerous, and employees who are not
sufficiently healthy, alert, and fit for work can pose
grave dangers to themselves and to many others. An
employee who is not up to the work on a given day can
do everyone a service by taking a day of unpaid leave.
Along these lines, therefore, Section 1 of the 1952 Agree-
ment states in relevant part: “When employees in
engine service are permitted to lay off they must not be
absent in excess of 30 days, except in case of sickness or
injury, without having formal leave, in writing, granted in
accordance with the provisions of this agreement.” (Sec-
tions 2 through 5 of the 1952 Agreement impose limits
on the terms and purposes of leaves of absences, as well
as procedures for securing approval for certain types of
leave.) The quoted language in Section 1 can be read
as implying that employees have a right to take “lay-offs”
of up to 30 days without explanation or consequence.
That is not the only way to read it, though, as the arbi-
trator found.
In 2003, Union Pacific adopted a new attendance policy
that addresses layoffs:
6 No. 12-2913
As a Union Pacific employee, you were hired for
and are expected to protect your job assignment on a
full-time basis. “Full-time” means being available
to work your assignment, whether regular or extra,
whenever it is scheduled to work. Assigned rest days,
layover days, and agreement-provided compensated
days off are available to you for personal business.
In addition, reasonable personal lay-offs may be
granted if the needs of service permit.
It is your responsibility to notify your manager,
in advance of layoffs if possible, on personal or family
issues that may affect your ability to work full time.
Substantiating documentation is expected and may
be required. However, notification and documenta-
tion alone do not excuse your responsibility to
protect your job. You may be considered in violation
of this policy regardless of the explanation offered
if you are unable to work full time and protect all
employment obligations.
Employees who violate the policy may be disciplined. The
first two violations result in formal warnings. A third
violation within 36 months of active service following
the second violation results in dismissal. The railroad
has disciplined engineers and other employees who it
believed violated the policy by excessive absenteeism.
The union objected to these actions, arguing that the
attendance policy conflicted with the 1952 Agreement.
The union has argued that the 1952 Agreement provides
engineers with a right to lay off for 30 days, and that
administering discipline for any absences previously
No. 12-2913 7
approved by the railroad’s “crew caller” violates any
possible reading of the 1952 Agreement.1
III. The Arbitrator’s Decision
The arbitrator determined that the 1952 Agreement
did not prevent the railroad from adopting its new atten-
dance policy. He concluded that the 1952 Agreement did
not provide automatic permission for lay-offs or absences
that lasted thirty or fewer days. In reaching this conclu-
sion, the arbitrator worked through the language of the
1952 Agreement. He determined specific meanings of
words and phrases from Section 1, including the terms
“thirty days,” “permitted,” and “sickness and injury.”
The arbitrator referred to the prior practice of the
union employees who requested permission from the
crew caller to take time off from work as evidence of the
proper interpretation of the 1952 Agreement. He also
considered the interests of the parties in this dispute,
noting that while engineers work long hours and ac-
cidents from fatigue are “a serious concern,” employers
have a strong interest in ensuring employees are
available for work and are not absent excessively. In
addition, the arbitrator considered two other arbitration
awards but acknowledged that those awards did not
bind him.
1
A crew caller handles short-term scheduling needs, including
ensuring that needed crews are available and approving or
rejecting lay-off requests.
8 No. 12-2913
Ultimately, the arbitrator found that the 1952 Agree-
ment created only a procedure for requesting leave and
did not give railway employees substantive rights
beyond the right to ask permission to lay off. The
arbitrator therefore found that the railroad’s attendance
policy does not conflict with the 1952 Agreement. The
arbitrator did find, however, that one aspect of the rail-
road’s attendance policy was unreasonable. He con-
cluded that the railroad’s use of an average number of
missed days of all employees as a yardstick for deter-
mining individual absenteeism would be arbitrary and
unreasonable because this average would be subject to
change without notice to employees and would place
as many as half of the employees in possible violation
of the attendance policy at any given time. He therefore
ruled that the railroad may not use average missed
days to determine whether individual employees are
in violation of the attendance policy.
After issuing the award, and upon request of the
parties, the arbitrator issued a clarification on June 10,
2011 stating that employees can be disciplined under the
railroad’s policy regardless of their good or bad faith.
Based on the railroad’s arguments in the arbitration,
though, the arbitrator explained that the railroad may not
discipline employees if they lay off for cause (e.g., for
sickness, the occasional holiday or weekend, or for re-
curring issues with adequate justification). The arbitrator
stated that the union could refer to his decision and use
it to defend against any unfair future discipline.
No. 12-2913 9
IV. The Union’s Challenges to the Arbitrator’s Decision
The union focuses on two aspects of the 2003 attendance
policy. First, it argues that the policy violates the right to
be absent for thirty or fewer days, which it argues was
conferred by the 1952 Agreement. Second, the union
complains that the railroad can discipline employees
under the 2003 attendance policy even for absences that
have been permitted by a crew caller. The union argues
that this discipline policy is unfair and conflicts with
the 1952 Agreement, and that the arbitrator exceeded
his jurisdiction by failing to interpret the 1952 Agree-
ment in approving the railroad’s new policy.
On appeal, the union presents these challenges in
three variations. It claims that the arbitrator’s award
should be rejected because it (1) nullified the essential
meaning of Section 1 of the 1952 Agreement, (2) lacked
an “interpretive route” from the 1952 Agreement, and
(3) was improperly based on policies and arguments
outside of the 1952 Agreement. However reasonable
the union’s position might have been before the
arbitrator, these arguments on the merits do not
persuade us to vacate the arbitrator’s award under our
deferential standard of review.
A. Nullification of the 1952 Agreement
The union believes that the 1952 Agreement must offer
some protection to engineers who desire to lay off from
work. Because the arbitrator found that the 1952 Agree-
ment merely created a procedure for formal leave and
10 No. 12-2913
did not give such protection to engineers, the union
argues that the arbitrator took away all critical meaning
of the 1952 Agreement and thus must not have inter-
preted it.
The arbitrator did not nullify Section 1 of the 1952
Agreement. He simply interpreted the agreement to
mean something other than the meaning promoted by
the union, and in doing so, he certainly interpreted
its language. He quoted the relevant language from
Section 1 and considered that language and meaning in
the course of explaining his award. For example, the
arbitrator found that Section 1’s reference to “thirty
days” must mean consecutive days (not total days); that
Section 1’s reference to “sickness or injury” means that
leaves longer than thirty days for sickness or injury do
not require the formal leave request procedure; and
that “ ‘permitted’ is used to focus on the Carrier’s re-
served judgment” and as a “condition precedent” to
laying off, considering the grammatical effects of the
term’s surrounding phrases. By looking to the meaning
of specific words and phrases and determining those
definitions based on surrounding language, the arbitrator
interpreted the 1952 Agreement in his decision, even
if the Union is unhappy with the result.
B. Lack of Interpretive Route to the Award
The union next argues that although the arbitrator
quoted and cited the contract, his award still exceeded
his jurisdiction because there is no interpretive route
from the contract to the award. Because the arbitrator
No. 12-2913 11
found that the 1952 Agreement does not provide rights
to lay off for thirty days and does allow for later
discipline for permitted absences, at least if there is a
pattern of excessive absence, the union argues that the
arbitrator must not have interpreted the 1952 Agree-
ment. First, the union states that the arbitrator must
have defined the terms “lay-off” and “absent” differently,
and it asserts this interpretation is “comical.” The
union explains that this interpretation produces
absurd results, such as that an engineer could simulta-
neously have permission to lay off but no permission
to be absent for longer than thirty days, and thus
would be both required and not required to work
on the same day. In sum, the union claims it would
be unfair to allow an employee to be punished for an
absence that was permitted by the crew caller at the
time the absence was requested, and thus any arbitral
award coming to this result must not have arisen
from interpretation of the 1952 Agreement. Second, the
union claims that the arbitrator stated that the 1952
Agreement conferred on engineers only the right to ask
for permission to lay off. The union argues that this
supposed right is so trivial that it is not a reasonable
interpretation that can be traced back to the 1952 Agree-
ment.
These arguments lose sight of this court’s limited stan-
dard of review. They invite us to consider the merits of
the arbitration award, which we may not do. The only
question for this court is whether the arbitrator inter-
preted the award. Our task is limited to determining
whether the arbitrator’s award could possibly have
12 No. 12-2913
been based on the contract. Amax Coal Co., 92 F.3d at 577(“[W]e must insist on the enforcement of [the arbitra-
tor’s] decision if there is any possible interpretive path
from . . . the Agreement to the arbitrator’s resolution of
this case.”); Ethyl Corp. v. United Steelworkers of America,
768 F.2d 180, 184-85 (7th Cir. 1985) (“It is only when the
arbitrator must have based his award on some body of
thought, or feeling, or policy, or law that is outside the
contract . . . that the award can be said not to draw its
essence from the collective bargaining agreement. . . .”)
(internal quotation omitted).
In making its first argument, the union fails to show
how the arbitrator’s conclusion that permitted absences
could result in discipline is an impossible interpretation
of the 1952 Agreement. The district court aptly explained
that individual absences may be permitted by the crew
caller, who makes lay-off decisions based on the needs
of the railroad at that time, but that an employee’s
total absences may later reveal a pattern of abuse. Conse-
quently, even if the crew caller permitted each of the lay-
offs in question, the employee may still be excessively
absent and subject to discipline. Bhd. of Locomotive Eng’rs
& Trainmen, 882 F. Supp. 2d at 1037. The arbitrator’s view
may or may not be the best reading of the 1952 Agree-
ment, but he was certainly reading the 1952 Agreement.
The union’s argument also misses the mark because its
characterizations of the arbitrator’s interpretations are
inaccurate. The arbitrator’s reading of the 1952 Agree-
ment does not require that the terms “lay-off” and “ab-
sence” be interpreted differently, but rather that the
time period of the absence (shorter or longer than thirty
No. 12-2913 13
days) triggers different procedures (either mere permis-
sion or formal leave).
The union’s second argument fails as well because
it does not show why it was impossible for the arbitrator
to conclude that the 1952 Agreement, which sets out
the procedures for formal leave, conferred on employees
only the right to ask permission for leave. The arbitrator
considered the words, phrases, and grammar of the
1952 Agreement to reach his conclusion that the pur-
pose of this language was to create leave procedures
and not to confer substantive rights on the employees
to be absent at will, without consequence or explana-
tion, for up to thirty days at a time. This interpretation
may or may not be correct, but it is not untethered
from the agreement’s text. The arbitrator’s award was
not so detached from the 1952 Agreement as to permit
a finding that there was no interpretive route from
the agreement to the award.
C. Consideration of Policies Outside the 1952 Agreement
The union next argues that the arbitrator based his
award on policies outside the 1952 Agreement and thus
exceeded his jurisdiction. It contends that the arbitrator
based his decision not on the 1952 Agreement but on his
own notion that the railroad had an “inherent right to
control the attendance of its employees.” The arbitrator
discussed this issue to determine whether the railroad
could develop an attendance policy at all, and he found
the railroad could do so because of this “inherent” man-
agerial right. The arbitrator’s next question was there-
14 No. 12-2913
fore whether this general right had been contracted
away by the 1952 Agreement and thus whether the
current policy conflicted with that agreement. See gener-
ally Chicago & N.W. Transp. Co. v. Ry. Labor Execs.’ Ass’n,
908 F.2d 144, 153 (7th Cir. 1990) (management may take
certain actions because of a prerogative right or because
of contract, so long as those things do not conflict with
the collective bargaining agreement). Arbitrators may
consider more general policies and norms in deter-
mining the meaning and implications of the agreements
they interpret. See Ethyl Corp., 768 F.2d at 185 (reversing
district court’s decision vacating award; arbitrator
could apply a “traditional principle of contract law”).
The arbitrator did not exceed his jurisdiction here by
contemplating this managerial right in addition to in-
terpreting the 1952 Agreement.
The union makes another, more laborious argument
that the arbitrator exceeded his jurisdiction by quoting
the railroad in his award, rather than focusing on the
1952 Agreement’s words alone. Essentially, the union
argues that the arbitrator referred to his own notions
of justice when he attempted to create an arbitral equiva-
lent of judicial estoppel by referring to positions the
railroad had taken in its arbitration brief. In defending
the attendance policy, the railroad said the policy was
not designed to punish or prohibit occasional absences
or laying off for sickness or even for a weekend or a
holiday, or even for recurring absences that are justified:
“It is only employees who are repeatedly or regularly
absent without cause or who otherwise abuse the lay
off process that run afoul of the Policy. It is, in other
No. 12-2913 15
words, a policy designed to prohibit only excessive ab-
senteeism, not all absenteeism across the board.” The
arbitrator quoted the railroad’s interpretation and stated
that the union could later refer to the award itself to
hold the railroad to that liberal interpretation of the
policy. App. 49 (“These words are hereby memorialized
and may forever be referred to by the Organization in
defense of employees who it deems are unfairly sub-
jected to discipline under the 2006 TE&Y Attendance
Policy.”). In this instance, the arbitrator interpreted
the attendance policy — a necessary step for deter-
mining whether the policy conflicts with the 1952 Agree-
ment — and chose to adopt the railroad’s interpretation,
while also indicating that the railroad should be held
in the future to its relatively liberal interpretation of
its policy upon which the arbitrator relied. Once more,
the arbitrator did not exceed his jurisdiction here.
D. Incorrect and Unclear Interpretation by the Arbitrator
The union’s remaining arguments pertain to how the
arbitrator interpreted the 1952 Agreement, not whether
he did so. In particular, the union argues (1) that the
arbitrator did not properly interpret a past arbitration
award; (2) that the arbitrator failed to consider evidence
about the parties’ past practices that tended to support
its interpretation of the 1952 Agreement, while he con-
sidered other facts that tended to undermine its inter-
pretation; and (3) that the arbitrator did not adopt the
correct interpretation of Section 1 of the 1952 Agreement,
and he should have found that Sections 2 through 5
16 No. 12-2913
concern formal leave, while Section 1 does not. For the
reasons we have already noted, all three of these argu-
ments are non-starters in light of the deferential
standard for judicial review. See, e.g., Bhd. of Locomotive
Eng’rs & Trainmen v. Union Pac. R.R. Co., 522 F.3d 746, 754-
55 (7th Cir. 2008) (arbitrators “are not bound by the out-
come of prior decisions in the same way that judges are
bound by the doctrine of stare decisis in courts”); Bates
v. Baltimore & Ohio R.R. Co., 9 F.3d 29, 32 (7th Cir. 1993)
(plaintiff’s contention that board improperly relied on
an inauthentic document was “an evidentiary dispute
[that] does not fall within any of the narrow jurisdic-
tional grounds for review under 45 U.S.C. § 153 First (q)”);
Hill, 814 F.2d at 1197 (“[T]he judicial function in arbitra-
tion cases is at an end when the court is satisfied that
the arbitrators were interpreting the contract rather
than doing something else. The correctness of their in-
terpretation is irrelevant.”).
Finally, the union complains that the arbitrator’s
award and clarification are unclear and leave the parties
unsure of how to act in absence and leave situations.
While lack of clarity can create problems for parties in
arbitration, this court is not the venue for clarifying an
arbitration award. Under the Railway Labor Act, the
Special Board is charged with interpretations of arbitra-
tion awards, so this issue will not be considered further
here. 45 U.S.C. § 153 First (m); Bhd. Ry. Carmen Div. v.
Atchison, Topeka & Santa Fe Ry. Co., 956 F.2d 156, 160 (7th
Cir. 1992) (“[T]he judicial duty to enforce an arbitration
award . . . is neither a duty nor a license to interpret it.”)
(internal citation omitted); see also Bhd. of Maintenance of
No. 12-2913 17
Way Emps. v. Burlington Northern R.R. Co., 24 F.3d 937,
939-41 (7th Cir. 1994) (reversing district court’s decision
interpreting arbitration award).
The judgment of the district court is A FFIRMED.
6-21-13