                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 05-2590
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS,

                                               Plaintiff-Appellant,
                                 v.

CSX TRANSPORTATION, INC. AND BROTHERHOOD
OF RAILROAD SIGNALMEN,
                                Defendants-Appellees.
                   ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
          No. 04 C 5292—Robert W. Gettleman, Judge.
                          ____________
    ARGUED NOVEMBER 8, 2005—DECIDED MAY 4, 2006
                  ____________


 Before CUDAHY, KANNE, and SYKES, Circuit Judges.
  CUDAHY, Circuit Judge. This case asks us to determine
whether an arbitration proceeding touching on the interests
of at least three parties but directly involving only
two violates either the Railway Labor Standards Act (RLA),
45 U.S.C. §§ 151-164 (2006), or basic notions of procedural
due process or both. We conclude that the plain language of
the RLA contemplates public law boards comprised of only
two partisan members and a neutral arbitrator with other
interested parties participating as advocates at the hear-
ings. We also conclude that this participation structure is
2                                                No. 05-2590

sufficient to satisfy the requirements of due process.
Accordingly, we affirm the judgment of the district court.
  The underlying dispute in this case centers on which
categories of railroad employees should perform the work of
repairing signal systems. Railroads, including
CSX Transportation, Inc. (CSXT), have traditionally as-
signed this type of work to signalmen. The work required to
perform the repairs, however, began to implicate a number
of specialities as technology evolved. Signals today involve
rather sophisticated electronics, and some railroads,
including CSXT, now assign the work to communications
employees. Since both categories of workers have relevant
expertise, it is unclear which is better suited to perform the
maintenance. And it is inevitable that, regardless of which
category of worker the railroad chooses, another category
will object.
  The work dispute here involves the choice of a single
employee. CSXT assigned work related to removing and
installing a data radio near Roanoke, Alabama, to an
electrician represented by the International Brother-
hood of Electrical Workers (IBEW). The Brotherhood of
Railroad Signalmen (BRS) objected to this assignment,
contending that under its collective bargaining agreement,
CSXT may assign this work only to a signalman. CSXT
asserted that it was free to assign this work either to a
signalman or to an electrician. BRS and CSXT could not
resolve this dispute and agreed to present it to Public Law
Board 6525 (the Board), a special board of adjustment they
had previously established to resolve disputes arising
between them.
  Neither CSXT nor BRS notified IBEW that this dispute
was before the Board. Pursuant to the RLA, CSXT and BRS
selected arbitrator M. David Vaughn as the chair
and neutral third member of the Board. Vaughn notified
IBEW of the dispute on March 4, 2004, and invited IBEW
No. 05-2590                                                3

to submit its position on the issue and attend the hearing
as a third-party. IBEW objected to the proceedings on the
ground that the Board had no jurisdiction to interpret
IBEW’s collective bargaining agreement because IBEW was
not a party to the arbitration. Vaughn rejected these
objections and notified the parties that he intended to go
forward with IBEW participating as an interested third-
party. IBEW participated in the hearing but was not
represented on the Board and maintained its objections.
  On April 30, 2004, Vaughn sent his signed proposed
award to CSXT, BRS and IBEW, which became final on
May 10, 2004. This award sustained BRS’s position and
rejected the arguments of IBEW and CSXT. Specifically,
Vaughn concluded that the collective bargaining agreement
required CSXT to assign the work to a signalman. He
accordingly rejected CSXT’s argument that it had discretion
to assign the work as it saw fit and IBEW’s that the work
was within the province of an electrician. IBEW now
appeals.
  We review orders granting summary judgment de novo.
Lyons v. Norfolk & W. Ry. Co., 163 F.3d 466, 469 (7th Cir.
1999). The findings of the Board, however, will receive
an extraordinary amount of deference, since the scope of
judicial review of a public law board’s decision is among the
narrowest known to the law. Union Pac. R.R. Co. v.
Sheehan, 439 U.S. 89, 91 (1978); Lyons, 163 F.3d at 469.
Although the RLA allows judicial review only in limited
circumstances, 45 U.S.C. § 153(q), in this Circuit due
process is a ground for reviewing an arbitration award.
Pokuta v. Trans World Airlines, Inc., 191 F.3d 834, 839 (7th
Cir. 1999).
  The RLA recognizes that the transportation industry
is critical to the nation’s economy and that labor dis-
putes have the power to cripple the economy if strikes
result. See 45 U.S.C. § 151a. Accordingly, the RLA estab-
4                                                No. 05-2590

lishes a comprehensive framework to control labor relations
and resolve labor disputes involving railroads (and airlines).
45 U.S.C. §§ 151, 181. See Herbert R. Northrup, The
Railway Labor Act—Time for Repeal?, 13 HARV. J.L. & PUB.
POL’Y 441, 442-55 (1990) (chronicling the history of the Act
and explaining its provisions). Section 153, which estab-
lishes the National Railroad Adjustment Board (NRAB) and
outlines arbitration procedures, is the portion of the statute
relevant to this dispute.
  Section 153 establishes a system of compulsory arbitra-
tion for minor disputes (generally those disputes stemming
from the interpretation of collective bargaining agreements)
but gives parties a choice of methods to use for this purpose.
United Transp. Union v. Gateway Western Ry. Co., 284 F.3d
710, 711 (7th Cir. 2002). One option, set forth in § 153 First,
involves arbitration by the NRAB, a bipartisan agency
comprised of thirty-four members, half appointed by unions
and half by carriers. The parties may also choose to submit
to a voluntary (ad hoc) public law board pursuant to § 153
Second, as BRS and CSXT did here.
  Work-assignment disputes are fairly common in the
context of railroad arbitrations. In general, such disputes
involve at least three parties: the railroad, the union to
which the railroad has assigned the work and the union
that believes it should have been assigned the work. These
disputes typically proceed in the manner that this one
has, with the union believing it was entitled to the work
demanding arbitration of the railroad, and the union
selected by the railroad participating as an interested third-
party. The RLA deals with arbitrations between unions and
carriers, not among unions. Thus, the participatory struc-
ture envisioned by the RLA fundamentally requires the
disputing union and carrier to participate as partisan
members but does not envision partisan membership for
other interested unions.
No. 05-2590                                                  5

  IBEW argues that this participatory structure vio-
lates both the text of the RLA and fundamental strictures
of due process, both of which require participation in all
aspects of the arbitration by all interested parties. But
these contentions are misguided. In support of its conten-
tions, IBEW points primarily to an Eighth Circuit case that
concluded that all interested parties must participate as
partisan members of the arbitration panel. Bhd. of Locomo-
tive Engrs. Int’l Union v. Union Pac. R.R. Co., 134 F.3d
1325 (8th Cir. 1998) (BLE). There the Eighth Circuit
explicitly noted that its “own reading of the statute [left it]
somewhat discomforted by this resolution, because the plain
language of the second paragraph of 45 U.S.C. § 153 Second
seems to envision only a three-person [public law board].”
Id. at 1333. IBEW additionally contends that only the
NRAB has the power to bind a nonconsenting third-party to
an arbitral award. The text of the RLA, however, simply
does not support IBEW’s arguments.
  We initially note that the first paragraph of § 153 Sec-
ond states that if “either party to such a system, group,
or regional board of adjustment is dissatisfied” with the
public law board, “it may upon ninety days’ notice to the
other party elect to come under the jurisdiction of the
adjustment board.” Congress’s use of the word “either” is
notable in this context, for it suggests that Congress
intended that these boards be bilateral—and nothing more.
  But Congress did more in this statute than merely
suggest that these boards be bilateral. The third paragraph
of § 153 Second plainly states that the public law boards
“shall consist of one person designated by the carrier and
one person designated by the representative of the employ-
ees.” 45 U.S.C. § 153 Second (emphasis added). Parties
electing to use § 153 Second will either resolve their
grievances through a voluntary board or choose a third-
party neutral to mediate their dispute. If they cannot either
resolve the dispute or choose a neutral, then the National
6                                                   No. 05-2590

Mediation Board will appoint an arbitrator. Nothing in the
statute contemplates more than two partisan board mem-
bers.
  IBEW does not focus on the text of § 153 Second but
instead directs its argument toward conformity with a line
of Eighth Circuit cases that is virtually unique to that
Circuit.1 Although IBEW is correct that BLE granted an
interested third-party union full-party status on an arbitra-
tion board, that opinion quite clearly states that Eighth
Circuit precedent—not the RLA—forced this conclusion.
The Eighth Circuit explicitly noted that “[t]he plain lan-
guage of the RLA anticipates a three-member board,” BLE,
134 F.3d at 1332, but concluded that other cases—cases
that it was not able to overrule—demanded a different
result. Given the Eighth Circuit’s discomfort with the BLE
line of cases, we see no reason to extend the reach of this
line of authority.2


1
   No circuit aside from the Eighth Circuit has adopted this
position. IBEW attempts to bolster its position by citing Hugs &
Kisses, Inc. v. Aguirre, 220 F.3d 890 (8th Cir. 2000), for the
proposition that arbitration is a voluntary procedure to which
nonconsenting parties cannot be forced to submit. Hugs & Kisses
and cases like it, however, are inapposite in the context of
railroads, since the RLA requires parties to submit to arbitra-
tion in certain instances. Andrews & Louisville & Nashville
R.R., 406 U.S. 320, 322 (1972); United Transp. Union, 284 F.3d at
711.
2
  Moreover, the Eighth Circuit cases are, as the district court
recognized, factually distinguishable from the present case. The
Eighth Circuit cases involved tripartite disputes implicating
identical contract language in the two collective bargaining
agreements at issue. BLE, 134 F.3d at 1332; United Transp.
Union v. Burlington N., Inc., 470 F.2d 813 (8th Cir. 1972) (BN1).
The BN1 Court concluded that both unions were entitled to
participate but does not indicate that both must be afforded
                                                    (continued...)
No. 05-2590                                                      7

  Perhaps recognizing that the text of the RLA contem-
plates only two-party board membership, IBEW turns to
legislative history and to a line of reasoning that BRS
and CSXT contend was raised only on appeal: that the RLA
allows only the NRAB to bind a nonconsenting third-party
union to arbitration. Both these arguments also fail. The
legislative history argument is unhelpful because the RLA
clearly and unambiguously states that the public law
boards are to be composed of two partisan members and a
neutral. See Conn. Nat’l Bank v. Germain, 503 U.S. 249,
253-54 (1992); Kramer v. Banc of Am. Sec. LLC, 355 F.3d
961, 966 (7th Cir. 2004). The NRAB argument is similarly
unhelpful because it imposes a reading on the statute that
its text does not bear.
  IBEW builds its legislative history argument by quoting
a number of passages from the debate surrounding the 1966


2
   (...continued)
partisan membership. These cases also involved operating crafts,
or those workers who actually operate the trains. In General
Committee of Adjustment v. Burlington Northern, Inc., 563 F.2d
1279 (8th Cir. 1977) (BN2) and BLE, operating craft workers
moved between operating positions depending on demand, and the
collective bargaining agreements dictated when these moves were
possible. An arbitration panel involving a carrier and only one
operating union meant that the partisan union could potentially
control language in another union’s collective bargaining agree-
ment, which in turn might affect an employee’s decision about
which union to join. In addition, the unions had conflicting
interests; employees who moved between positions could not be
certain that the partisan union adequately represented their
interests. The situation here is notably different. The BRS and
IBEW contracts with CSXT share no common language, and BRS
is not charged with representing employees covered by IBEW. The
result is that the interpretation of BRS’s contract has only an
indirect effect on IBEW, which can adequately represent its
employees’ interests by participating as an interested third-party.
8                                                No. 05-2590

amendments to the RLA. H.R. Comm. on Interstate and
Foreign Commerce, Railway Labor Act, H.R. Rep. 1114 at
14 (Oct. 1, 1965). Some language in these passages can be
read to suggest that all parties with an interest must agree
to submit a dispute to arbitration before a board may be
convened. But a closer examination of this language in its
context reveals that the debate involved certain types of
disputes over union jurisdiction. That is, the only language
that is arguably helpful to IBEW refers to a situation where
one union has attempted to raid the membership of another
union with which its jurisdiction overlaps. See, e.g., S. Pac.
Co. v. Switchmen’s Union of N. Am., 49 Lab. Arb. Rep. 1052
(1967) (Mann, Arb.). Work-assignment disputes, as pre-
sented here, are an entirely different issue, and one that
Congress did not address in these discussions.
  IBEW also asserts that only the NRAB has the power
to bind a nonconsenting third-party to an arbitration and
ensuing arbitral award. CSXT and BRS contend that IBEW
waived this argument by not making it in the district court.
The present argument, however, is merely a more fleshed
out version of an earlier jurisdictional argument and is
therefore properly before this Court. Bew v. City of Chicago,
252 F.3d 891, 895-96 (7th Cir. 2001).
  Although IBEW’s argument is properly before us, it is
ultimately unpersuasive. The problem with this argu-
ment is that the major purpose of public law boards is to
relieve workload pressure on the NRAB. S. Pac. Co., 49 Lab.
Arb. Rep. 1052 (writing, in the first public law board
convened after the 1966 amendments, that “[a] special
adjustment board . . . provides nothing more than an
alternative forum for disputes which have heretofore
gone to the NRAB, and is intended to alleviate the huge
backlog of cases pending before the NRAB”). Public law
boards are expressly authorized to resolve “disputes
otherwise referable to the [NRAB], or any dispute that
has been pending before the [NRAB] for twelve months.” 45
No. 05-2590                                                   9

U.S.C. § 153 Second. IBEW suggests that, since only the
NRAB’s procedures are statutorily specified and since the
RLA requires parties to notify third-parties of dis-
putes coming before the NRAB, Congress intended only
the NRAB to hear disputes involving third-parties. This line
of reasoning is thin.
   IBEW hinges its argument on a rather complicated
reading of § 153 that views each section as self-contained.
It argues that since the Supreme Court relied upon § 153
First (j)’s notice provisions to conclude that third-party
notice and participation was sufficient to satisfy due
process, that provision is necessary to confer jurisdiction.
Transp.—Comm. Employees Union v. Union Pac. R.R. Co.,
385 U.S. 157, 160 (1966) (TCEU). IBEW then argues that
the provisions of § 153 First apply only to the subparts of
§ 153 First. As a result, the fact that (j) is housed in § 153
First signifies that it can only apply to the NRAB, which
§ 153 First establishes. Since § 153 First (j) is limited to the
NRAB, the RLA contains no authority that the public law
boards may rely on to assert jurisdiction over nonconsenting
third-parties. But we find no such limitation in the RLA.
See O’Neill v. Public Law Bd. No. 550, 581 F.2d 692, 695
(7th Cir. 1978) (concluding that the provisions of § 153 First
(j) apply to § 153 Second). Given that the point of the 1966
amendments was to expedite arbitration, it would be
illogical to read the RLA in such as way as to preclude (or
hinder) parties from taking advantage of the public law
boards.
  Having concluded that nothing in the RLA itself requires
that IBEW participate as a partisan in this arbitration, we
finally consider whether the third-party participation
structure violates IBEW’s due process rights. IBEW
contends that the Board denied it crucial participatory
rights and therefore fundamental due process when it
declined to grant IBEW partisan board member status.
CSXT and BRS argue that this Board simply did what has
10                                                    No. 05-2590

traditionally satisfied due process: allowed IBEW the
opportunity to participate meaningfully as an interested
third-party.
  In the arbitration context, due process is satisfied so
long as the arbitrator provided a fundamentally fair
hearing, one that meets the minimal requirements of
fairness—adequate notice, a hearing on the evidence and an
impartial decision by the arbitrator. Generica Ltd. v.
Pharm. Basics, Inc., 125 F.3d 1123, 1130 (7th Cir. 1997). In
work-assignment disputes involving additional interested
unions, the Supreme Court has held that due pro-
cess requires only that the additional union be given
“an opportunity to be heard.” TCEU, 385 U.S. at 165. Here,
IBEW admittedly participated in the hearing as
an interested third-party. The arbitrator notified IBEW that
the dispute before the Board involved decisions implicating
IBEW’s collective bargaining agreement with CSXT. IBEW
submitted its position on the merits to the Board. And no
one contends that the arbitrator was anything but impar-
tial.3



3
  IBEW’s citation to International Association of Machinists and
Aerospace Workers v. Metro-North Commuter Railroad, 24 F.3d
369 (2d Cir. 1994), is unavailing. The central holding of that short
opinion is that a person cannot participate as both an interested
party and a decision-maker on an NRAB panel. 24 F.3d at 371-72.
Regardless whether that holding is correct, it does not apply to
public law boards, since the RLA plainly contemplates that the
public law boards will consist of two interested party decision-
makers and one neutral. The portion of the opinion directly
relating to public law boards is notable for its brevity; it provides
no discussion of the text of the RLA. Moreover, although the
opinion explains that the railroad conducted separate arbitrations
for the two unions involved in this dispute, it fails to indicate
whether they were able to participate in the arbitrations as
interested third-parties. The case’s utility here is thus limited.
No. 05-2590                                                11

  IBEW’s main due process argument is that its relegation
to third-party status denied it the opportunity to participate
in selecting the neutral arbitrator and in the Board’s final
deliberations. Many of the articles and cases that IBEW
cites suggest that the selection of the neutral in particular
is likely to affect the outcome of the arbitration. (Appel-
lant’s Br. 13-21 & nn.9-11.) While we have no doubt that
choosing a neutral is an important aspect of arbitration, we
recognize that railroad arbitration differs fundamentally
from ordinary commercial arbitration. Congress promul-
gated the RLA specifically because disputes involving the
transportation infrastructure are different and have the
potential to affect all facets of the economy. See, e.g., Leo
Kanowitz, Alternative Dispute Resolution and the Public
Interest, 38 HASTINGS L.J. 239, 288-90 (1987) (discussing
arbitration under the RLA). Given that reality, procedures
and rules that may be appropriate in ordinary commercial
arbitration often are simply unworkable in the context of
the railroads.
  Moreover, from a practical standpoint, requiring the
public law boards to include all interested parties as
partisan members promises to eliminate the usefulness
of the boards. Not only will their size inevitably increase,
but arbitration would likely be delayed by threshold battles
over which parties are interested enough to earn seats on
the boards. IBEW’s position has sympathetic elements;
something may seem to be missing when its collective
bargaining rights can be affected without its
full participation and assent as a board member (although
we again note that nothing in the law of due process
requires such participation). But the RLA contemplates
such a situation, and it protects unions in IBEW’s position
through third-party participation in the hearing.
  Accordingly, we AFFIRM the judgment of the district court.
12                                       No. 05-2590

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—5-4-06
