
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                                         -2-          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                                         -3-          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.                                         -4-          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                                         -5-          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.                                                  ______________________                                         -6-          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                                         -8-          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                                         -9-          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                                         -10-          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                                         -11-          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.                            ________                                         -12-
