                           In the

United States Court of Appeals
              For the Seventh Circuit

Nos. 10-3314, 10-3518

B ROTHERHOOD OF L OCOMOTIVE
    E NGINEERS AND T RAINMEN ,
                                            Petitioner-Appellee/
                                               Cross-Appellant,
                               v.



U NION P ACIFIC R AILROAD C O .,
                                         Respondent-Appellant/
                                               Cross-Appellee.


            Appeals from the United States District Court
                 for the Southern District of Illinois.
       No. 3:08-cv-00828-MJR-CJP—Michael J. Reagan, Judge.


    A RGUED JANUARY 9, 2013—D ECIDED F EBRUARY 13, 2013




  Before P OSNER, F LAUM, and W ILLIAMS, Circuit Judges.
  P OSNER, Circuit Judge. Employment disputes involving
collective bargaining agreements in the railroad
industry are generally resolved by an arbitral body
called the National Railroad Adjustment Board. Before
taking a grievance to the Adjustment Board, the em-
2                                     Nos. 10-3314, 10-3518

ployee or his union must exhaust the employer’s
internal grievance procedures. 45 U.S.C. § 153 First (i).
But if those procedures fail to resolve the dispute,
either party can refer it to the Board by submitting a
petition with “a full statement of the facts and all sup-
porting data bearing upon the disputes.” Id. And that
is what occurred in this case. Because the case involves
a train engineer, it was referred to the Board’s first divi-
sion, composed of four members designated by rail-
roads and four designated by unions. § 153 First (h).
If the members deadlock, as they did in this case, they
select a neutral referee to resolve the dispute; and that
was done. § 153 First (l). The loser can seek review in
the district court on the basis of the record compiled in
the proceeding before the Board. § 153 First (q). But
the district court may set aside the Board’s order only
“for failure of the division to comply with the require-
ments of [the Railway Labor Act]” or “to conform, or
confine itself, to matters within the scope of the division’s
jurisdiction,” or “for fraud or corruption by a member of
the division.” Id.
   The Union Pacific Railroad had fired a locomotive
engineer named Narron. The union filed a grievance,
which eventually came before the Board, and the Board
ordered the railroad to reinstate Narron with back pay
but authorized the railroad to offset the back pay
by any earnings that he had obtained between his
firing and his reinstatement (we’ll call this period the
“layoff period”). The union wasn’t happy with the
earnings-offset provision and filed a petition in the
district court challenging that part of the award. Oddly,
Nos. 10-3314, 10-3518                                     3

neither party admits to knowing whether Narron earned
any money during the layoff period. The district judge
was very disturbed by this gap in the record and
decided that it deprived him of jurisdiction, since, he
reasoned, if Narron hadn’t earned anything, the
union’s challenge to the earnings-offset provision in the
Board’s order was academic. He remanded the case to
the Board to determine whether Narron had had any
earnings. (The docket sheet says the court dismissed
the case, but that’s inaccurate.) The judge also ordered
the earnings-offset provision of the Board’s order va-
cated. He didn’t explain that part of his decision.
  Both parties have appealed. The railroad wants us to
reverse the part of the district court’s order that vacates
the earnings-offset provision and to instruct the district
court, rather than the Board, to determine whether Narron
had any earnings. The union wants us to reverse the
part of the order that directs the Board to make that
determination and also asks us either to invalidate
the earnings-offset provision or tell the district court
to determine its validity in the first instance.
  There are questions about our jurisdiction over both
appeals, as well as about the district court’s jurisdiction.
Our appellate jurisdiction (the reason for the emphasis
will appear) depends on the district court’s order being
a final judgment and therefore appealable under 28
U.S.C. § 1291. The Federal Arbitration Act authorizes
interlocutory appeals from orders vacating arbitra-
tion awards, 9 U.S.C. § 16(a)(1)(E), but there is no cor-
responding provision in the Railway Labor Act. The
4                                     Nos. 10-3314, 10-3518

district judge’s order appears to envisage further pro-
ceedings before him after the Board determines Narron’s
earnings if any during his layoff period. That makes
the order nonfinal—an order is final when the court or
other body that issued it considers itself finished with
the case—and therefore not appealable. “If the district
court finds that the decision was erroneous and enters
a judgment wrapping up the litigation, that decision
is appealable even if extrajudicial proceedings [in this
case, proceedings before the Adjustment Board] lie
ahead; but if the court postpones adjudication until
after additional evidence has been analyzed, then it has
not made a final decision.” Perlman v. Swiss Bank Corp.
Comprehensive Disability Protection Plan, 195 F.3d 975,
979 (7th Cir. 1999).
   We say the district court’s order “appears to” rather
than “does” envisage further court proceedings because
we don’t know why the judge vacated the earnings-
offset provision—a provision of an award that he
thought he had no jurisdiction to review. Our guess is
that he thought the Board had acted prematurely in
ordering an earnings offset without determining
whether Narron had earned anything during the layoff
period. This implies that if the Board determined that
he had, it would reinstate its award of back pay but
specify the amount after subtracting his earnings during
the layoff period, and the union’s challenge to the de-
duction would then be ripe for consideration by the
district court. If this understanding of the district
judge’s thinking is correct, his order is not final, because
it contemplates a further proceeding in the district court
Nos. 10-3314, 10-3518                                        5

should Narron be determined by the Board to have
had any earnings during his layoff period. The further
judicial proceeding would be a proceeding to determine
the validity of the earnings-offset provision in the
Board’s order.
  We could remand the case to the district judge for
an explanation of what he was thinking in vacating
the provision, but that would extend the litigation unnec-
essarily; for it is obvious that the order vacating
the provision exceeded his authority, and such an error
can be corrected by mandamus, and should be to move
the litigation along. Although no formal petition for
mandamus has been filed, we can treat the notice of
appeal as a petition for mandamus; at the oral argument
the railroad agreed that this is an appropriate case for
mandamus.
  Of course mandamus must not be used as a form
of interlocutory appeal. That would vitiate the final-
decision rule of section 1291. But the historic and still a
vital function of mandamus is to confine a judge or
other official to his jurisdiction, Thermtron Products, Inc. v.
Hermansdorfer, 423 U.S. 336, 351-52 (1976), overruled on
other grounds in Quackenbush v. Allstate Ins. Co., 517 U.S.
706, 711-15 (1996); In re U.S. Brass Corp., 110 F.3d 1261, 1266
(7th Cir. 1997), and the judge exceeded his jurisdiction
in this case. Remember that the Railway Labor Act
entitled him to vacate the Board’s award on only three
grounds—the Board (more precisely the division of
the Board that had handled the case) hadn’t complied
with the statute, or had exceeded its jurisdiction, or a
6                                      Nos. 10-3314, 10-3518

member of the Board had committed fraud or corruption.
The judge mentioned none of these grounds, and
anyway none of them is applicable to the Board’s not
having determined Narron’s earnings.
   So we vacate the striking of the earnings-offset
provision of the award, and that leaves us with the
district court’s order remanding to the Board to
determine whether Narron had earned any money
during the layoff period. Since the order contemplates
the possible return of the case to the district court if
he’s found to have had earnings, we are still faced with
an unappealable because nonfinal district court order.
But that order, too, exceeded the district court’s jurisdic-
tion and requires correction by mandamus. For it gratu-
itously and with no basis in law disrupts the arbitra-
tion process of the National Railway Adjustment Board.
Both parties tell us that in an employment dispute of
the kind involved in this case, the Board’s award (in
this case reinstatement with back pay) is always made
without reference to whether the employee had earnings
during the layoff period. The earnings (if any) are not
even part of the record before the Board. The reason for
the omission, the parties tell us, is to expedite the arbitral
proceeding. All that the Board decides is whether the
employee is entitled to reinstatement with back pay; if
it decides in his favor, the determination of the amount
of back pay is left for the parties to work out.
  If they can’t work it out they can go back to the Board.
45 U.S.C. § 153 First (m) (“in case a dispute arises
involving an interpretation of the award, the division of
Nos. 10-3314, 10-3518                                      7

the Board upon request of either party shall interpret
the award in the light of the dispute”); see, e.g., United
Transportation Union v. Southern Pacific Transportation
Co., 529 F.2d 691 (5th Cir. 1976). (Alternatively the
dispute can be resolved by the district court in an en-
forcement action under 45 U.S.C. § 153 First (p), but only
if the award “can be clarified by reference to extrinsic
evidence not involving the special expertise of the
board.” 529 F.2d at 693.) Apparently the parties usually
can work it out by themselves, and this enables the
Board to simplify and expedite the arbitration by
stopping short of determining the actual back pay due.
The analogy is to declaratory-judgment procedure. “The
hope that motivates casting a request for relief in declara-
tory terms is that if the declaration is granted, the parties
will be able to negotiate the concrete relief necessary to
make the plaintiffs whole without further judicial pro-
ceedings.” Berger v. Xerox Corp. Retirement Income
Guarantee Plan, 338 F.3d 755, 763-64 (7th Cir. 2003). Simi-
larly, the Adjustment Board’s award declares that the
employee is entitled to offset earnings against back pay
and leaves the parties to negotiate the net award.
  Although no one is questioning the legality of the
Board’s practice, the district judge in effect has ordered
it changed by requiring that the existence of earnings
during the layoff period be determined before the
Board’s order can be judicially reviewed. If the judge’s
order stands, no longer will parties to disputes arbitrable
by the National Railway Adjustment Board be able to
postpone the resolution of disputes concerning the
amount of a worker’s net lost income until after the
8                                   Nos. 10-3314, 10-3518

Board’s order has been issued and, if challenged in
court, upheld.
   A court is not authorized to change a practice of an
administrative agency if the legality of the practice is
unchallenged. The Adjustment Board’s practice of defer-
ring the calculation of the net back pay due isn’t even
unusual; it’s the practice of the National Labor Relations
Board as well, and has been upheld. See NLRB v. Inter-
national Association of Bridge, Structural & Ornamental
Ironworkers, Local 480, AFL-CIO, 466 U.S. 720, 725
(1984) (per curiam); U.S. Can Co. v. NLRB, 254 F.3d 626,
628 (7th Cir. 2001). Asked in the ironworkers case
“whether the Court of Appeals may modify an award
of backpay by the National Labor Relations Board on
the grounds that the Board failed promptly to specify
the amounts of the award,” 466 U.S. at 721, the Court
held that the court of appeals could not do that, because
it would “abridg[e] procedures lawfully established by
the Board for determining the amount of backpay”—
namely ordering back pay without specifying the
amount. Id. at 725. That case differs from ours because
the determination of the amount of back pay was to be
made by the agency itself rather than negotiated by
the parties. The Labor Board had found liability for
back pay but had dawdled in calculating the amount
due each class member, and the court of appeals stepped
in to make the allocation and the Supreme Court
reversed that intervention. The ruling principle rules
this case as well: an agency is permitted to divide its
proceedings between entitlement to relief and amount
of relief (a parallel to the common judicial practice of
Nos. 10-3314, 10-3518                                    9

bifurcating liability and damages) rather than having to
do both in a single proceeding.
   Another route to concluding that entitlement and
amount can be distinguished is that a dispute between
union and railroad over the propriety of an earnings-offset
provision in an arbitration award does not depend on
whether a particular employee had such earnings. All
workers whom the union represents—and therefore
the union itself—are better off financially if a reinstated
worker is allowed to keep, on top of the back pay
awarded him, any earnings he obtained from
substitute employment during his layoff period. Narron
is not even a party to the case; whether he gets to
keep earnings that he obtained during his layoff period
is a minor facet of the parties’ dispute.
   So the district court exceeded its authority in dis-
missing the petition to review the Board’s award, and
we must order the court to vacate its dismissal along
with its order remanding the case to the Board. We add,
for guidance should there be further judicial proceedings,
that the scope of judicial review of the Board’s awards
is, as with judicial review of other arbitral awards, ex-
ceedingly narrow—indeed it’s been said to be “among
the narrowest known to the law.” Union Pacific R.R. v.
Sheehan, 439 U.S. 89, 91 (1978) (per curiam); American
Train Dispatchers Association v. Norfolk & Western Ry., 937
F.2d 365, 366 (7th Cir. 1991). “As we have said too many
times to want to repeat again, the question for decision
by a federal court asked to set aside an arbitration
award—whether the award is made under the Railway
10                                    Nos. 10-3314, 10-3518

Labor Act, the Taft-Hartley Act, or the United States
Arbitration Act—is not whether the arbitrator or arbitra-
tors 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 &
Western Ry., 814 F.2d 1192, 1194-95 (7th Cir. 1987). That
makes it doubtful that there is any basis for striking
down an earnings-offset provision. Such a provision
appears to be just an application of the traditional doctrine
of mitigation of damages, an application—again one
found in NLRB cases as well—to cases in which workers
wrongfully fired are awarded back pay. See Phelps Dodge
Corp. v. NLRB, 313 U.S. 177, 197-200 (1941); cf. NLRB
v. Midwestern Personnel Services, Inc., 508 F.3d 418, 423
(7th Cir. 2007). But determining the validity of such a
provision is a task for the district court in the first
instance, should the question of validity arise in future
litigation arising out of this or some other award. For us
to decide the question at this juncture would exceed our
authority to issue a writ of mandamus, an authority
limited in this case to ordering rescission of the district
court’s order that vacated the earnings-offset provision
and remanded the case to the Adjustment Board.
                                               S O O RDERED.




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