Norfolk and Western Ry. Co. v. Transportation Communications Intern. Union.

• Decision Date: 25 February 1994
• Docket Number: No. 93-1366,93-1366
• Citation: 17 F.3d 696
• Parties: 145 L.R.R.M. (BNA) 2617, 127 Lab.Cas. P 11,044 NORFOLK AND WESTERN RAILWAY COMPANY, Plaintiff-Appellant, v. TRANSPORTATION COMMUNICATIONS INTERNATIONAL UNION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 696

17 F.3d 696

145 L.R.R.M. (BNA) 2617, 127 Lab.Cas. P 11,044

NORFOLK AND WESTERN RAILWAY COMPANY, Plaintiff-Appellant, v. TRANSPORTATION COMMUNICATIONS INTERNATIONAL UNION, Defendant-Appellee.

No. 93-1366.

United States Court of Appeals Fourth Circuit.

Argued Dec. 9, 1993.

Decided Feb. 25, 1994.

ARGUED: Jeffrey Stephen Berlin, Richardson, Berlin & Morvillo, Washington, D.C., for Appellant. Nora Carroll, Guerrieri, Edmond & James, Washington, D.C., for Appellee. ON BRIEF: Mark E. Martin, Richardson, Berlin & Morvillo, Washington, D.C.; William P. Stallsmith, Jr., Norfolk, Virginia, for Appellant. Robert S. Clayman, Guerrieri, Edmond & James, Washington, D.C., for Appellee.

Before RUSSELL and LUTTIG, Circuit Judges, and KEELEY, United States District Judge for the Northern District of West Virginia, sitting by designation.

OPINION

LUTTIG, Circuit Judge:

This case arises from a labor dispute between a railroad and a union that was submitted to arbitration under the Railway Labor Act. The arbitration Board ruled against the railroad after drawing an adverse inference from the railroad's refusal to produce evidence. The district court granted enforcement of the arbitration award, and the railroad appeals, arguing that the arbitration Board exceeded its contractual jurisdiction. We affirm.

I.

Appellee Transportation Communications International Union (TCU) is the recognized collective bargaining representative for the clerical employees of appellant Norfolk & Western Railway Co. (N & W). Certain of these employees--"clerk-callers" and "ice house foremen"--are employed by N & W to provide transportation to N & W's train crews in and around its Portsmouth, Ohio, railyard. They share this work with N & W management and an outside contractor.

In November 1986, N & W switched outside contractors, replacing the Yellow Cab Company with the Brown Limousine Company. In January 1987, TCU submitted a claim to N & W alleging that, in violation of the scope clause of the collective bargaining agreement, ¹ Brown Limousine was performing work previously performed by members of TCU. TCU sought compensation of a full day's wages for the senior clerical employee on each shift for each day since N & W began using Brown Limousine. N & W rejected this claim at all levels of the internal grievance process. The parties then submitted the claim to Public Law Board 4454, a private arbitration panel established by agreement between N & W and TCU, pursuant to the Railway Labor Act (RLA). See 45 U.S.C. Sec. 153 Second.

In October 1988, this Board received written submissions from the parties and conducted a hearing. The submissions consisted primarily of statistics on the number of trips Brown Limousine made during different periods. N & W's statistics, gleaned from its records, showed that in the months immediately after the switch Brown Limousine made fewer trips per day than Yellow Cab had made; TCU's statistics, collected in a study covering a later time period, showed that it made many more. In May 1991, the Board determined that the submissions were inconclusive, but that TCU's statistical study was sufficient to shift the burden of production to N & W. ² Concluding that a joint check of N & W records was necessary to determine if Brown Limousine was performing union work, the Board ordered the parties to undertake such a check. The Board cautioned, however, that because many factors influenced the number of trips made, the results of the check would not necessarily be conclusive. See J.A. at 339-40.

N & W refused to submit to the joint check and sued in federal district court to have the order invalidated, on the grounds that the agreement creating the Board did not grant the Board authority to compel a check of its records. The district court dismissed the claim for lack of a reviewable final order. See Norfolk & W. Ry. Co. v. Transp. Communications Int'l Union, 780 F.Supp. 364 (E.D.Va.1991).

In February 1992, the Board issued its final order. Although it acknowledged that under the arbitration agreement it could only "request," not compel, the submission of additional evidence, the Board concluded that it could draw adverse inferences from a refusal to produce requested evidence. It then reasoned that N & W's refusal to submit to the joint check of its records supported an inference that the information within those records was adverse to N & W's position. Based primarily on this adverse inference, the Board sustained TCU's claim. See J.A. at 344-46.

Significantly, the Board was at pains to emphasize that its decision was dictated by the course of the proceedings between N & W and TCU and that it was not promulgating a general rule:

[W]e do not view our decision as any future license for the Organization to have unfettered access to the Carrier's records. Our determination in this matter relates only to the specific and unique facts in this case. It is not our intention that our action in this matter be interpreted as requiring a joint check of the Carrier's records merely because the Organization alleges, without any proof, that scope rule protected work has been given to strangers to the Agreement.

Id. at 347 n. 4. Specifically, the Board believed that an adverse inference was warranted because N & W had refused to produce records that it had argued were dispositive of the dispute, and some of which N & W actually had relied upon in support of its claim that it had not breached its duties to TCU. The Board reasoned that:

[i]t was the Carrier who first cited the numbers of trips shown by its records.... [I]t was the Carrier who relied so heavily upon the numbers demonstrated by its records and argued that the Organization could not adequately refute that evidence.

....

Having first raised the issue, the Carrier cannot now rely upon the data in its records and at the same time refuse to divulge the contents of its records.

Id. at 345 n. 3; id. at 347 n. 4 ("Here, the Carrier first raised the issue, refused to disclose information and the Organization was able to demonstrate through evidence it was able to gather that its position was more than just wishful speculation.").

N & W thereafter filed the instant suit to have the Board's award vacated and set aside under 45 U.S.C. Sec. 153, First (q). On cross motions for summary judgment, the district court held that the Board, by drawing an adverse inference from N & W's refusal to comply with its request for evidence, exceeded its authority under the arbitration agreement, as well as its own understanding of that authority. The court nevertheless granted enforcement of the Board's order, concluding that Richmond, Fredricksburg & Potomac R.R. v. Transp. Communications Int'l Union, 973 F.2d 276 (4th Cir.1992) ("RF & P "), deprived it of the authority to set the order aside. This appeal followed.

II.

We said in RF & P that a court could inquire only "whether the arbitrators did the job they were told to do--not whether they did it well, or correctly, or reasonably, but simply whether they did it." 973 F.2d at 281 (quoting Bh'd of Locomotive Eng'rs v. Atchison, Topeka & Santa Fe Ry. Co., 768 F.2d 914, 921 (7th Cir.1985)). The district court, seizing upon this language, held that it was without authority to set aside the Board's order even though it found that the Board exceeded its jurisdiction, because the Board had done the job it was told to do--resolve TCU's claim. N & W argues that the district court's view of the permissible scope of its review authority under the RLA was mistakenly narrow. We agree.

The orders of a railway labor arbitration panel constituted under the RLA, including those interpreting the panel's own authority, see W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber Workers, 461 U.S. 757, 765, 103 S.Ct. 2177, 2183, 76 L.Ed.2d 298 (1983); cf. RF & P, 973 F.2d at 279 ("limits of arbitrator's authority defined by terms of parties' own submissions"), are subject to a unique standard of review which is "among the narrowest known to the law." Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 91, 99 S.Ct. 399, 401, 58 L.Ed.2d 354 (1978) (per curiam ) (quoting Sheehan v. Union Pac. R.R. Co., 576 F.2d 854, 856 (10th Cir.1978)); Norfolk & W. Ry. Co. v. Bh'd of Ry., Airline & S.S. Clerks, 657 F.2d 596, 599 (4th Cir.1981). A court may set aside such an award only

for failure of the [Board] to comply with the [RLA]; for failure of the order to conform, or confine itself, to matters within the scope of the [Board's] jurisdiction; or for fraud or corruption....

45 U.S.C. Sec. 153 First (q). See also Sheehan, 439 U.S. at 93, 99 S.Ct. at 402. Under this standard, a court "may not overrule an arbitrator's decision simply because it believes its own interpretation of the contract would be the better one." W.R. Grace, 461 U.S. at 764, 103 S.Ct. at 2182. It may reverse an arbitral decision as in excess of a board's jurisdiction only where the arbitration board's order " 'does not draw its essence from the collective bargaining agreement,' " W.R. Grace, 461 U.S. at 764, 103 S.Ct. at 2182 (quoting Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960)), or its interpretation of the contract is "wholly baseless and completely without reason," Gunther v. San Diego & Arizona E. Ry., 382 U.S. 257, 261, 86 S.Ct. 368, 371, 15 L.Ed.2d 308 (1965); see also Schneider v. Southern Ry. Co., 822 F.2d 22, 24 (6th Cir.1987); Bh'd of R.R. Trainmen v. Central of Georgia Ry. Co., 415 F.2d 403, 411-12 (5th Cir.1969), cert. denied, 396 U.S. 1008, 90 S.Ct. 564, 24 L.Ed.2d 500 (1970). Of course, an award that ignores the plain and unambiguous language of the arbitration contract does not "draw its essence" from the agreement, and may therefore be overturned under the RLA. See, e.g., United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 371, 98 L.Ed.2d 286 (1987); Coca-Cola Bottling Co. v....