Maine Central R. Co. v. Brotherhood of Maintenance of Way Employees

• Decision Date: 08 February 1989
• Docket Number: Nos. 87-1524,88-1876,s. 87-1524
• Citation: 873 F.2d 425
• Parties: 131 L.R.R.M. (BNA) 2201, 111 Lab.Cas. P 11,133 The MAINE CENTRAL RAILROAD COMPANY and Portland Terminal Company, Plaintiffs, Appellants, v. BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, Defendant, Appellee. The MAINE CENTRAL RAILROAD COMPANY, et al., Plaintiffs, Appellants, v. BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 425

873 F.2d 425

131 L.R.R.M. (BNA) 2201, 111 Lab.Cas. P 11,133

The MAINE CENTRAL RAILROAD COMPANY and Portland Terminal

Company, Plaintiffs, Appellants, v. BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, Defendant, Appellee.

The MAINE CENTRAL RAILROAD COMPANY, et al., Plaintiffs, Appellants, v. BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, Defendant, Appellee.

Nos. 87-1524, 88-1876.

United States Court of Appeals First Circuit.

Heard Feb. 8, 1989.

Decided April 26, 1989.

Dorothy Eugenia Langan with whom Richard T. Conway, Ralph J. Moore, Jr., Cynthia W. Simon, Shea & Gardner, Washington, D.C., Charles S. Einsiedler, Jr., and Atwood, Scribner, Allen, Smith & Lancaster, Portland, Me., were on briefs, for plaintiffs, appellants.

John O. Clarke, Jr., with whom Janet K. DeCosta and Highsaw & Mahoney, P.C., Washington, D.C., were on brief, for defendant, appellee.

Before BOWNES, Circuit Judge, COFFIN, Senior Circuit Judge, and TORRUELLA, Circuit Judge.

COFFIN, Senior Circuit Judge.

This is an appeal by plaintiffs, Maine Central Railroad Company and Portland Terminal Company (collectively, the Carrier), from the granting of summary judgment to defendant, Brotherhood of Maintenance of Way Employees (BMWE, or the Organization), ¹ on plaintiffs' petition to set aside an award by a statutorily authorized Arbitration Board, 663 F.Supp. 425 and 691 F.Supp. 509. The present issues are whether the Board exceeded the bounds of its authority under the report and recommendations of Emergency Board 209 in (1) requiring that lump sum payments as arrived at through national bargaining by BMWE and certain railroads, not including the Carrier, be assumed as obligations by the Carrier, (2) in establishing per diem rates for newly authorized system-wide maintenance production crews, and (3) in effecting a moratorium on additional proposals concerning the issues resolved by the Arbitration Board.

I. Evolution of the Litigation

This litigation, involving as it does, an order of the President, two statutes passed by Congress, a Congressional Advisory Board recommendation, an Emergency Board recommendation, and an Arbitration Board's binding award, cannot be understood properly without a tracing of its significant stages.

1. The basic dispute was framed by the serving of "section 6 notices" under section 6 of the Railway Labor Act, 45 U.S.C. Sec. 156, by both BMWE and the Carrier in April and September of 1984. BMWE sought changes in the collective bargaining agreement that would give additional protection to employees, specifically, separation allowances to those displaced by technological and other changes. The Carrier sought changes to allow maintenance crews to service needs on a system-wide basis, not merely within four discrete seniority sections, such new groups to be called System Production Maintenance Crews.

2. Mediation ensued in 1985 under the auspices of the National Mediation Board but proved unsuccessful. BMWE declined arbitration and instead initiated a strike on March 3, 1986. By April 10, 1986, it had begun picketing on several railroads outside the Guilford system.

3. On May 16, 1986, the President, in Executive Order 12557, established Emergency Board 209 to investigate and report. Before the Board reported, the Carrier, on May 24, 1986, filed new Section 6 notices, asking for major changes in the bargaining agreement and in the Railway Labor Act and the Railroad Retirement Act. The changes would have eliminated all craft and class lines as well as all restrictions on contracting out work. Faced with such requests for "dramatic changes," as Guilford's president characterized them, the Board sought an agreed upon extension of time to report to the President. The Carrier refused to join the request.

4. On June 20, 1986, Emergency Board 209 filed its report. It declined the sweeping review sought by the Carrier in its poststrike notice and addressed the narrow issues leading to the strike and formation of Emergency Board 209. On the BMWE issue of job protection, the Board recognized both the need of the Carrier to mechanize its maintenance of way operations and the claim of affected employees that they were given disparate treatment compared to clerical and other employees. The Board recommended acceptance of the Carrier's March 2 proposal of a $20,000 lump sum separation allowance for currently active employees, as modified by a BMWE counter-proposal of $26,000.

On the Carrier's issue of System Production Maintenance Crews, the Board recognized the right of the Carrier to establish such crews but also deemed valid BMWE's concern that the new crews should not perform "normal, day to day, maintenance work" that could be efficiently handled by the employees of the several districts. Insofar as compensation was addressed, the Carrier had simply proposed a per diem allowance, without quantification. BMWE had proposed "various levels of travel allowance and expenses associated with meals and lodging." The Board recommended that the parties negotiate an agreement for the new system-wide crews similar to those agreements in effect on Guilford's other railroads, the Boston & Maine and the Delaware & Hudson, but with the proviso that the per diem allowance should not be less than that being paid "maintenance of way employees under other agreements or arrangements throughout the Guilford System."

The Board also addressed two issues that had not been the focus of specific proposals--one involving "changes in rates of pay and health and welfare programs," the other, "local rules and working conditions." As for the former, the Board observed that both BMWE and the Carrier had served notices identical to those served on a national basis and that historically both parties had participated in, or had agreed to be bound by, concerted national handling. It therefore recommended that "consistent with the parties' proposals of March 2 and 3, 1986 ² and in view of their past practice the parties should agree to be bound by the results of the national negotiations involving rates of pay and health and welfare programs." Regarding changes in local work rules and working conditions, the Board noted the exchange of views between the Carrier and BMWE in which the Carrier indicated its preference for dealing with these issues "on a local basis." It therefore recommended that the parties agree to handle changes in work rules and practices noticed before Executive Order 12557 "under the orderly and peaceful procedures of the Railway Labor Act ... without resort to self-help."

5. On August 21, 1986, with mediation efforts following the Emergency Board's report failing, the Congress authorized an Advisory Board to report on progress, if any, and to make findings and recommendations. Public Law 99-385.

6. On September 8, 1986, the Advisory Board filed its report. This Board concluded that the Carrier's refusal to accept Emergency Board 209's recommendations was not, as Carrier had contended, based on financial exigency. Being still somewhat optimistic over the "cooperative approach" manifested by both sides, the Board recommended that the parties be given until the end of the month to reach an agreement, with the still unsettled issues to be submitted to binding arbitration at that time.

7. On September 30, 1986, PL 99-431 was enacted, decreeing that "the report and recommendations of Presidential Emergency Board Numbered 209 shall be binding on the parties and shall have the same effect as though arrived at by agreement of the parties" and that "if there are unresolved implementing issues," the parties shall enter into binding arbitration to resolve them.

8. Finally, on October 30, 1986, the Arbitration Board issued its award, which the district court enforced on June 3, 1987.

II. Threshold Question

Standard of Review.

Appellee has accurately described the statutory framework of our review:

Section 3(B) of Public Law No. 99-431, 100 Stat. at 988, expressly provides that if it were necessary to arbitrate, "such arbitration shall be conducted as if it were under section 7 of ... [the Railway Labor] Act, and any award of such arbitration shall be enforceable as if under section 9 of such Act." Thus, in reviewing the award, the district court was required by Section 9 Third of the Railway Labor Act, 45 U.S.C. Sec. 159 Third, to affirm the award unless appellants satisfied one of the three specific grounds for impeachment set forth in Section 9 Third. Only one of those grounds is relevant here, and that is: "That the award does not conform, nor confine itself, to the stipulations of the agreement to arbitrate...." 45 U.S.C. Sec. 159 Third(b).

The applicable case law is well known. Judicial review of an arbitration award is among the narrowest known in the law. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960); Local 1445, United Food and Commercial Workers v. Stop & Shop Companies, 776 F.2d 19, 21 (1st Cir.1985); Bettencourt v. Boston Edison Co., 560 F.2d 1045, 1048-49 (1st Cir.1977). United Paperworkers v. Misco, 484 U.S. 29, 108 S.Ct. 364, 371, 98 L.Ed.2d 286 (1987), is our most recent beacon:

The arbitrator may not ignore the plain language of the contract; but the parties having authorized the arbitrator to give meaning to the language of the agreement, a court should not reject an award on the ground that the arbitrator misread the contract.

108 S.Ct. at 371.

We recognize that the arbitration in this case was not of garden variety. It was the culmination of a most deliberate, sustained, and painful intervention on the part of the executive and legislative branches in a dispute significantly affecting interstate commerce. The language of Section 9 Third governing standard arbitration disputes under the RLA comports, however, with causes of such moment in mandating that an award is to be "construed liberally by the court, with a view to favoring its...