

                  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 &amp; 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 &amp; Clarke, P.C.                                                                           
were on brief for appellee.

                                           

                         August 30, 1996
                                           

                                                  

*  Of the Seventh Circuit, sitting by designation.

          TORRUELLA, Chief Judge.   Plaintiff-Appellant Boston  &amp;                    TORRUELLA, Chief Judge.                                          

Maine  Corporation (the  "B&amp;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&amp;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&amp;M to withhold their labor

from the B&amp;M to assist them in resolving their dispute.  In April

1986, the B&amp;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&amp;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

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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&amp;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 &amp;  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&amp;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&amp;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&amp;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&amp;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&amp;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&amp;M partisan  member dissenting --  finding that the

claimants had been erroneously deprived of their seniority by the

B&amp;M's actions.  These  four awards ordered the B&amp;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&amp;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&amp;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&amp;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 &amp; 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&amp;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  &amp; 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&amp;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&amp;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&amp;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 &amp; 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&amp;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&amp;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&amp;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&amp;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&amp;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&amp;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&amp;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&amp;M and the  employees involved pertinent

to the CBA.  Specifically, because B&amp;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&amp;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.                                    

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