Opinion
Civil Action No. 3:03-CV-0417-D.
October 6, 2004
MEMORANDUM OPINION AND ORDER
Petitioners Brotherhood of Maintenance of Way Employees and Southern Pacific Atlantic Federation of the Brotherhood of Maintenance of Way Employees (collectively, "BMWE") and respondent Union Pacific Railroad Company ("UP") each move for summary judgment in this case seeking enforcement or review of decisions of a public law board (" PLB") established pursuant to 45 U.S.C. § 153 Second, a provision of the Railway Labor Act, 45 U.S.C. §§ 151-188 ("RLA"). The parties' dispute relates to Miguel A. Sotomayor ("Sotomayor"), a BMWE member whom UP terminated after he accumulated three disciplinary infractions. In the context of federal labor law, in which courts play a decidedly limited role, the court must address knotty questions arising from the potential interrelationship between two PLB awards involving Sotomayor's disciplinary matters. For the reasons that follow, the court enforces one award in part and in part remands the award to the PLB. It dismisses BMWE's petition for review of the other award.
I A
UP and BMWE are parties to a collective bargaining agreement ("CBA") that allows UP to discipline employees. Based on a company policy, UP assigns discipline levels for violations of work rules. If an employee has a prior discipline history, UP can impose more stringent discipline in accordance with a Progressive Discipline Table.During his tenure at UP, Sotomayor was charged with violating UP's equal employment opportunity policy ("EEO Infraction"). Following a hearing, UP sustained the charge and assessed a discipline Level of 4.5, which provided for a 60-day suspension.
UP charged Sotomayor with failing to have a copy of the UP Rule Book in his possession ("Rule Book Infraction"). This is normally rated as a Level 2 infraction, but because of his EEO Infraction, it was categorized as Level 4.5. Sotomayor signed under protest a waiver form by which he accepted Level 4.5 discipline and waived the right to a hearing. The waiver form explained that, because his record showed a prior Level 4.5 discipline, the current violation required the assessment of Level 4.5.
UP subsequently charged that Sotomayor had failed to follow a safety rule ("Safety Rule Infraction"). The Safety Rule Infraction would have been categorized as Level 3, providing for a five-day suspension. But because Sotomayor's discipline record was already at Level 4.5, he would receive Level 5 discipline, resulting in termination, if the charge was sustained. UP conducted a hearing, sustained the charge, and discharged him.
BMWE challenged before a PLB the discipline UP imposed for the EEO Infraction and the dismissal for the Safety Rule Infraction. The PLB addressed BMWE's claim concerning the EEO Infraction in Award No. 11, concluding that the discipline was improper because UP had conducted an unfair investigation. The PLB sustained BMWE's claim to the extent it required that "all references of this discipline . . . be removed from Mr. M.A. Sotomayor's personal record and he shall now be compensated for all lost time[.]" Ps. App. 1, 3-4.
In the EEO Infraction, a UP officer other than the hearing officer found Sotomayor guilty of the charged offense. The PLB concluded that when, as in the case of the EEO Infraction, the evidence is conflicting, only the hearing officer can assess evidence.
BMWE's challenge to the Safety Rule Infraction, which resulted in Sotomayor's termination, was unsuccessful. A PLB composed of the same members who decided Award No. 11 found in Award No. 14 that UP had sufficiently proved the charge. Addressing Sotomayor's termination, the PLB stated:
We next consider the penalty that was imposed. We note that in . . . Award No. 11, we sustained [BMWE's] claim arising out of an UPGRADE Level 4.5, sixty day suspension imposed on [Sotomayor] on May 26, 2000. Disregarding that suspension, we note that, on October 4, 2000, [Sotomayor] signed a waiver and accepted a Level 4.5, sixty day suspension for [the Rule Book Infraction]. Consequently, the validity of that suspension is not subject to collateral attack in this proceeding. Given [Sotomayor's] disciplinary record and the severity of the instant offense, we find that the penalty is not arbitrary, capricious nor excessive.
Ps. App. 6. BMWE had argued that the PLB should order Sotomayor reinstated because Award No. 11 altered his prior discipline status and made it improper to discharge him for the Safety Rule Infraction. BMWE filed this action seeking judicial enforcement of Award No. 11 and review and remand of Award No. 14.
It may reasonably be inferred from the record that, although the PLB was aware that Sotomayor had accepted the Rule Book Infraction discipline by waiver, the form he signed was first brought to the Board's attention by BMWE at an executive session that BMWE requested after the PLB issued proposed Award No. 14. The waiver form details how the discipline Level of 4.5 was calculated for the Rule Book Infraction based on the discipline that was previously assessed for the EEO Infraction.
BMWE maintains that Award No. 11 unambiguously directed UP to remove all references to the vacated EEO Infraction discipline from Sotomayor's files. It contends that, although UP paid Sotomayor for lost time, it failed in two ways to comply completely with Award No. 11: first, it did not remove all references to the discipline from his personnel record, and, second, it did not negate the effect the EEO Infraction had on the discipline assessed against Sotomayor for subsequent violations. BMWE argues that had the effect of the EEO Infraction on subsequent disciplines been removed, the later rule violations would not have warranted termination, and, because UP has refused to reinstate Sotomayor, it has not complied with Award No. 11. BMWE moves for summary judgment enforcing Award No. 11 and, among other remedies, seeks Sotomayor's reinstatement.
Concerning Award No. 14, BMWE argues that, in issuing the Award, the PLB failed to acknowledge the impact that Award No. 11 had on the discipline imposed for the Rule Book Infraction and Safety Rule Infraction and thus failed to conform to the jurisdiction the parties gave it. It avers that, by finding that the penalty assessed against Sotomayor for the Safety Rule Infraction was not arbitrary, capricious, or excessive, the PLB dispensed its own brand of industrial justice, contrary to the RLA.
UP moves for summary judgment on the grounds that it has complied with the Award No. 11, BMWE is seeking enforcement of its interpretation of the Award, and the court lacks authority to interpret the Award. It seeks summary judgment as to BMWE's request to review Award No. 14 on the basis that the arbitrator adhered to all jurisdictional and legal requirements.
B
The instant dispute ultimately centers on the parties' understandings of the interrelationship between the two Awards and their perception of what was decided in each. They rely on their own interpretations of the Awards to support their positions concerning the propriety of Sotomayor's ultimate dismissal from UP. UP argues that, by upholding Sotomayor's dismissal in Award No. 14, the PLB implicitly rejected BMWE's argument that Sotomayor's dismissal was improper under Award No. 11, thereby clarifying the scope of Award No. 11. It relies on this alleged implicit finding to support its view that Award No. 11 does not require the reassessment of the discipline imposed on Sotomayor for the Rule Book Infraction. Moreover, UP maintains that, through its decision in Award No. 14, the PLB decided that, because Sotomayor waived the right to an investigative hearing for the Rule Book Infraction, he "waived the right to challenge that discipline and cannot avoid the effects of his voluntary decision through an incorrect and over-reaching interpretation of Award No. 11." R. Br. Support Mot. Sum. J. at 13. UP thus maintains that Award No. 11 does not require that it reassess the disciplines Sotomayor received for the Rules Copy and Safety Rule Infractions.BMWE contends that, in Award No. 14, the PLB did not resolve the issue of Award No. 11's proper enforcement, but merely upheld Sotomayor's dismissal on the ground that the waiver form he signed was not subject to collateral attack in the Award No. 14 proceeding. BMWE suggests that the PLB consciously refused to resolve questions regarding Award No. 11's application because it recognized that it was functus officio concerning enforcement of the Award and could not revisit it during the Award No. 14 proceeding. BMWE takes the inconsistent position, however, that Award No. 14 should be vacated precisely because the PLB did not properly take Award No. 11 into account when deciding Award No. 14. BMWE's argument that Sotomayor's dismissal should be vacated is essentially based on its interpretation of Award No. 11. With this understanding of the parties' arguments, the court now turns to the Awards in dispute.
II
BMWE petitions the court under 45 U.S.C. § 153 Second to enforce Award No. 11. "Under the Railway Labor Act . . . the range of judicial review in enforcement cases is among the narrowest known to the law." Diamond v. Terminal Ry. Ala. State Docks, 421 F.2d 228, 233 (5th Cir. 1970).
Judicial review of a labor-arbitration decision by this Court, or by the district court, is extremely limited. Where the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority the fact that a court is convinced he committed serious error does not suffice to overturn that decision. Thus, if there is ambiguity as to whether an arbitrator is acting within the scope of his authority, that ambiguity must be resolved in favor of the arbitrator, as the mere inference of ultra vires action is an insufficient reason for refusing to enforce the award.
We will not uphold an arbitrator's decision, however, when it dispenses its own brand of industrial justice outside the scope of an arbitration agreement. Rather, we are free to scrutinize an arbitrator's award to ensure that the arbitrator acted in conformity with the jurisdictional prerequisites of the collective bargaining agreement. And, where an arbitrator exceeds his contractual authority, vacation or modification of the award is an appropriate remedy. In short, an arbitrator may not ignore the plain language of the contract.Am. Eagle Airlines v. Airline Pilots Ass'n, Int'l, 343 F.3d 401, 405-06 (5th Cir. 2003) (citations omitted and internal quotation marks omitted), cert. denied, ___ U.S. ___, 124 S.Ct. 1655 (2004). Under the RLA, a PLB award is "final and binding" on the parties. 45 U.S.C. § 153 Second.
In deciding whether to enforce an arbitration award, the court must determine whether the award "is ambiguous in its scope or application[.]" Brown v. Witco Corp., 340 F.3d 209, 216, 220 n. 12 (5th Cir. 2003) (Labor Management Relations Act case). If it is, it is unenforceable. Id. at 216. "A court may not interpret the award in order to resolve the ambiguity and implement the award; instead, the court must remand the award to the arbitrator with instructions to clarify the award's particular ambiguities." Id. Remand to the arbitrator in an enforcement action is appropriate in three circumstances: "when an award is patently ambiguous, when the issues submitted were not fully resolved, or when the language of the award has generated a collateral dispute." Oil, Chem. Atomic Workers Int'l Union Local 4-367 v. Rohm Haas, Tex., Inc., 677 F.2d 492, 495 (5th Cir. 1982). "[A] remand is necessary [in these cases] to clarify precisely what the Court is being asked to enforce." Id. The court should not remand, however, "where it would force a decision on an issue not previously submitted to the arbitrator." Id. The proper action in that case is to leave the parties to grieve the issue afresh according to procedures established by their collective bargaining agreement. See id. "The issues submitted to an arbitrator, or the grievance itself when no submission agreement is used, define the limits of the arbitration award." Id. at 493. If an award is not ambiguous, the court must enforce it "so long as the arbitrator's decision `draws from the essence of the collective bargaining agreement' and does not exceed the scope of the arbitrator's authority." Brown, 340 F.3d at 216 (quoting Nat'l Gypsum Co. v. Oil, Chem., Atomic Workers Int'l Union, 147 F.3d 399, 401-02 (5th Cir. 1998)).
In its review of Award No. 14, the court can only vacate the Award for one or more of these four reasons: "(1) if the board failed to comply with the RLA; (2) if the board failed to confine itself to matters within its jurisdiction; . . . (3) if fraud or corruption tainted the process[,]" or (4) "where the award failed to meet the requirements of due process." Atchison, Topeka Santa Fe Ry. Co. v. United Transp. Union, 175 F.3d 355, 357 (5th Cir. 1999). "Courts are not authorized to review the arbitrator's decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties' agreement. . . . [T]he fact that a court is convinced [the arbitrator] committed serious error does not suffice to overturn [the] decision." Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504, 509 (2001) (internal quotation marks omitted). An arbitrator's decision must be affirmed as long as it "draws its essence from the collective bargaining agreement," United Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 36 (1987) (quoting United Steelworkers of America v. Enterprise Wheel Car Corp., 363 U.S. 593, 597 (1960)), and his interpretation of the agreement is not "wholly baseless and completely without reason[.]" E. Air Lines, Inc. v. Transp. Workers Union AFL-CIO, Local 553, 580 F.2d 169, 172 (5th Cir. 1978) (quoting Gunther v. San Diego Ariz. E. Ry. Co., 382 U.S. 257, 261 (1965)). To draw its essence from the contract, "[t]he award must, in some logical way, be derived from the wording or purpose of the contract." Anderman/Smith Operating Co. v. Tenn. Gas Pipeline Co., 918 F.2d 1215, 1218 (5th Cir. 1990) (quoting Local Union 59, Int'l Bhd. of Elec. Workers v. Green Corp., 725 F.2d 264, 268 (5th Cir. 1984)).
III
The court first addresses Award No. 11.
A
BMWE's argues that Award No. 11 requires the removal of references from Sotomayor's personnel record. The PLB ordered UP to remove all references to Sotomayor's discipline from his personnel record and to compensate him for his lost time. There is nothing patently ambiguous about the Award. Moreover, subsequent proceedings do not change this conclusion. At a minimum, the Award required UP to remove all references, including those in paper and computer records, pertaining to the EEO Infraction and to compensate Sotomayor for lost time. According to the plain language of Award No. 11, all such references should have been removed.
The court therefore grant's BMWE's motion for summary judgment to enforce Award No. 11 to the extent that there are still references in Sotomayor's personnel record to the discipline for the EEO Infraction. The court rejects UP's interpretation of Award No. 11 that allows it to retain references to the EEO violation in files pertaining to subsequent disciplines.
B
BMWE also maintains that Award No. 11 requires UP to abrogate the effect of the vacated discipline on subsequent disciplines and that this interpretation of the Award is supported by the CBA. UP argues that Award No. 11 does not affect Sotomayor's subsequent disciplines for two reasons: first, the Award does not require it to abrogate the effect of the discipline on subsequent disciplines; and, second, the PLB decided in Award No. 14 that, because Sotomayor accepted the discipline for the Rule Book Infraction, he waived any right to contest that discipline and his ultimate dismissal was proper based on that discipline.
BMWE contends that its interpretation of Award No. 11 is supported by the language of Rule 21(f) of the CBA ("If the charges against the employee [are] not sustained, the record of the employee will be cleared and if suspended or dismissed, the employee will be returned to his former position and reimbursed for any net loss of compensation incurred in connection therewith.").
1
The parties' dispute concerning what Award No. 11 requires is based on the language in the Award that requires the "removal of all references from Sotomayor's personal record[.]" In evaluating BMWE's argument that Award No. 11 requires UP to abrogate the effect of the EEO Infraction discipline on subsequent disciplines, the language of the Award is unhelpful in pointing the court to which party's interpretation is correct. To decide this issue, the court would be required to interpret the Award, which the court cannot do. See Bhd. Ry. Carmen Div., Transp. Communications Int'l Union v. Atchison, Topeka Santa Fe Ry. Co., 956 F.2d 156, 160 (7th Cir. 1992) ("[W]hether the union's interpretation is right or wrong, in accepting it the district judge implicitly interpreted the agreement, which she lacked the statutory authority to do. Paradox though this may seem, the judicial duty to enforce an arbitration award . . . is neither a duty nor a license to interpret it."); Brown, 340 F.3d at 216 ("A court may not interpret the award in order to resolve the ambiguity and implement the award. . . ."). Because the Award is unclear on this issue, the court cannot enforce it according to BMWE's construction. See Brown, 340 F.3d at 216 ("[I]f the arbitration award in question is ambiguous in its scope or application, it is unenforceable."). Therefore, the court must determine whether this is a "collateral dispute" between the parties that arises from the Award's language and should be remanded to the PLB or whether the dispute arises out of an issue that was never presented to it and thus requires resolution by way of new grievance proceedings. See Oil, Chem. Atomic Workers, 677 F.2d at 495.
The only possible basis for remand would be that the parties' dispute is a collateral one based on the language of the Award. See Oil, Chem. Atomic Workers, 677 F.2d at 495. The other grounds stated in Oil, Chemical Atomic Workers are not at issue, because there is no patent ambiguity in the Award and the PLB fully decided the issue presented to it (the propriety of the discipline and the remedy demanded in the statement of the claim in Award No. 11). See id..
2
In Pace Union, Local 4-1 v. BP Pipelines, 191 F.Supp.2d 852 (S.D. Tex. 2002), the district court addressed the same question in essentially the same context. See id. at 853-55 (summarizing parties' arguments regarding whether remand or dismissal was appropriate in deciding cross-motions for summary judgment in enforcement action). The arbitration award at issue required, inter alia, that a discharged employee be provided with certain rights guaranteed by the parties' collective bargaining agreement. Id. at 854. The parties disagreed as to the rights that the award guaranteed. Id. The court relied on the Fifth Circuit's decisions in Oil, Chemical Atomic Workers and San Antonio Newspaper Guild Local No. 25 v. San Antonio Light Division, 481 F.2d 821 (5th Cir. 1973), in determining that the issue in dispute was "properly characterized as an issue originally submitted to the arbitrator that was not fully resolved and/or that represents a collateral dispute generated by the language of the award." See Pace Union, 191 F.Supp.2d at 856-59 (discussing these cases and applying Oil, Chemical Atomic Workers framework to reach decision). It concluded that, in either case, remand to the arbitrator was proper. Id. at 859.In San Antonio Newspaper Guild the Fifth Circuit considered a dispute arising out of an arbitration award that required a company to make an employee "whole for any loss in earnings." San Antonio Newspaper Guild, 481 F.2d at 822-24. "[T]he Union and the Company each contended that this portion of the award clearly supported its position," and "there existed between them a legitimate disagreement as to its actual implementation." Id. at 824. The panel recognized that the disputed portion of the award "could be, and was, interpreted in a variety of ways." Id. Declining to resolve the dispute, the court explained that "[t]he normal course of action in such cases . . . is for the court to remand the matter to the original arbitrator for clarification." Id. at 825; accord Hanford Atomic Metal Trades Council v. General Elec. Co., 353 F.2d 302, 305, 307-08 (9th Cir. 1965) (affirming district court's remand of issue to arbitrator where "it was not clear whether the appellant's or appellee's construction of the opinion and award was correct with respect to the remedy to be applied[.]"). Ultimately, the court concluded that remand was unnecessary because a subsequent arbitration between the parties decided the disputed issue. Id. at 825-26.
In contrast, courts have not remanded disputes that arise out of issues that were not presented to the arbitrator; they have held that the more appropriate course is to allow the parties to invoke the grievance procedures established in their collective bargaining agreement. See, e.g., Oil, Chem. Atomic Workers, 677 F.2d at 495; S. Council of Indus. Workers, Local 2440 v. Cardell Kitchen Bath Cabinetry, 2003 U.S. Dist. LEXIS 19439 at *17-*19, *21 (W.D. Tex. 2003); United Papermakers Paperworkers, AFL-CIO, Local 675 v. Westvaco Corp., 461 F. Supp. 1022, 1024-25 (W.D. Va. 1978); Int'l Ass'n of Machinists Aerospace Workers, Local Lodge No. 1893 v. Aerojet-General Corp., 263 F. Supp. 343, 345, 347 (C.D. Cal. 1966). Cases of this type seem to encompass primarily two situations. The first is where the dispute arises out of an award that is not self-enforcing but requires that further determinations be made or further facts be established before it takes effect. See, e.g., United Papermakers, 461 F. Supp. at 1023, 1025 (leaving parties to grieve dispute arising out of award that required company to make determination after award was issued as to whether certain assignments were "permanent"); Int'l Ass'n of Machinists, 263 F. Supp. at 345, 347 (requiring parties to grieve dispute arising out of award that did not specify employees who were entitled to benefits of award); see also San Antonio Newspaper Guild, 481 F.2d at 824 n. 3 ("There may be . . . special circumstances where invocation of grievance machinery might be appropriate following the award of an arbitrator. Ordinarily this would occur where a collateral dispute arises from an award which is not selfexecuting." (emphasis omitted)). The second is where the company indisputably fulfilled the requirements of the award but the ultimate dispute between the parties arose out of an issue never presented to the arbitrator. See e.g., Oil, Chem. Atomic Workers, 677 F.2d at 493, 495 (affirming district court decision that "a new grievance [was] preferable to remand" where a union sought through an enforcement action to force a company to apply an arbitration award with which it had complied to "similar occurences" even though the question whether the award should have such an application was never presented to the arbitrator); S. Council of Indus. Workers, 2003 U.S. Dist. LEXIS 19439 at *11, *15-*17, *21 (dismissing enforcement action where company reinstated employee under award requiring reinstatement, but union challenged warnings issued to employee at time of reinstatement as constituting violation of award).
BMWE's claim specifies the issues that were presented to the PLB for decision during the Award No. 11 proceeding. Specifically, BMWE asked the PLB to find that the discipline assessed against Sotomayor for the EEO Infraction was improper. The claim also called for the removal from Sotomayor's personnel record of all references to the discipline, compensation for lost time, and reimbursement for all expenses incurred in attending the investigation of the charge. It is clear from Award No. 11 that the PLB decided all of these issues. It sustained the claim in all respects, except it denied reimbursement of expenses for attending the investigation. Nevertheless, just as the disputes in Hanford Atomic Metal Trades Council and San Antonio Newspaper Guild arose from a disagreement as to what the language of the award at issue demanded, the parties in this case disagree concerning what Award No. 11 requires by the language "all references . . . shall be removed." Indeed, the panel's language in San Antonio Newspaper Guild describing the nature of the dispute before it accurately recounts the situation here. See San Antonio Newspaper Guild, 481 F.2d at 824 ("Although the Union and the Company each contended that this portion of the award clearly supported its position, there existed between them a legitimate disagreement as to its actual implementation."). Award No. 11 is self-enforcing. It does not require the parties to make further determinations or require further facts to be established before it is enforced, as did the awards in United Papermakers and International Ass'n of Machinists. Moreover, the dispute does not arise from an issue that was never presented to the PLB during the Award No. 11 proceeding, because the language of the claim that BMWE submitted to the PLB is the focus of the disagreement. Thus to the extent the dispute between the parties centers only on whether Award No. 11 requires UP to abrogate the effect of the first discipline on Sotomayor's subsequent disciplines, it is a collateral dispute arising out of a disagreement over what is required by the PLB's directive that all references be removed.
The court cannot determine whether UP is correct in arguing that the PLB clarified the scope of Award No. 11 and implicitly rejected BMWE's interpretation of the Award through its decision in Award No. 14. Although during the Award No. 14 proceeding BMWE argued that Sotomayor's dismissal was improper in light of Award No. 11, the PLB did not indicate in Award No. 14 that it was deciding the merits of this argument. Whether the PLB implicitly interpreted the meaning of Award No. 11 through its decision in Award No. 14 is not for this court to decide. Consequently, because the issue regarding Award No. 11's proper scope was not clearly resolved and its language has generated a collateral dispute, it is improper for the court to decide the issue, and it must be addressed by the PLB on remand.
The court need not consider whether the PLB in Award No. 14 was functus officio with respect to Award No. 11, because the language of Award No. 14 does not indicate that the PLB interpreted or revisited its decision in Award No. 11 in making its decision.
3
What Award No. 11 requires concerning Sotomayor's subsequent disciplines would be moot, however, if the waiver Sotomayor signed for the Rule Book Infraction interdicts the effect of Award No. 11. BMWE raises several arguments related to the waiver. First, it maintains that UP waived its right to rely on the waiver by not asserting the argument during the arbitration of Award No. 11. Second, it argues that, by signing the waiver form under protest, Sotomayor indicated that he did not intend to waive rights associated with challenging the EEO Infraction discipline, including the right to have the discipline reassessed for the Rule Book Infraction, should the discipline for the EEO Infraction be voided. Third, BMWE challenges the voluntariness of Sotomayor's waiver. It argues that neither the waiver form itself nor the CBA sufficiently warned Sotomayor that, by accepting the discipline for the Rule Book Infraction, he was relinquishing his right to have the discipline reassessed if a prior discipline on which it was based (here, the EEO Infraction) was later vacated or otherwise held improper.
The court turns first to BMWE's argument that UP waived the right to rely on Sotomayor's waiver by not raising the issue during the Award No. 11 proceeding. Courts have held that a party's failure to raise a defense at arbitration to a remedy considered by the arbitrator prevents the party from later relying on the defense in an enforcement proceeding. See, e.g., Int'l Chem. Workers Union, Local 683C v. Columbian Chems. Co., 331 F.3d 491, 499 (5th Cir. 2003); Chicago Newspaper Guild v. Field Enters., Inc., 747 F.2d 1153, 1157-58 (7th Cir. 1984); Int'l Union of Operating Eng'rs, Local No. 841 v. Murphy Co., 82 F.3d 185, 186-90 (7th Cir. 1996) (holding that company could not rely on defense during enforcement action where it did not raise defense during arbitration or during 90-day period provided under Federal Arbitration Act for parties to raise challenges to award). BMWE argues that UP is using Sotomayor's waiver as an excuse against complying with Award No. 11, which requires it to reassess Sotomayor's subsequent disciplines. Under this characterization, Sotomayor's waiver would constitute a defense to the remedy provided in Award No. 11. BMWE relies on International Chemical Workers Union to support its argument that UP has waived such a defense.
In International Chemical Workers Union the Fifth Circuit reversed a district court's decision to remand an award that called for an employee's reinstatement after his termination for sleeping on the job and required the company to make him "whole with back pay." Int'l Chemical Workers Union, 331 F.3d at 492-93. The arbitrator was charged with the task of deciding whether proper cause existed for the employee's discharge and, if it did not, of determining the appropriate remedy. Id. at 493, 495. The district court remanded the award for a determination whether the employee's interim earnings should be considered when calculating the back pay the company owed. Id. at 492-93. The company did not raise the issue of interim earnings during the original arbitration proceedings, but it did so during the enforcement action. Id. at 499. Relying on the Seventh Circuit's opinion in International Union of Operating Engineers, the Fifth Circuit held that the company's interim earnings argument did not make the award ambiguous. Id. The court concluded that the employee was entitled to the full amount of back pay guaranteed by the award, reasoning that "[b]ecause the Union requested a make whole back-pay remedy, the Company `should have known that the issue of damages was before the arbitrator and so should have addressed it' in a timely and complete fashion." Id. (quoting Int'l Union of Operating Eng'rs, 82 F.3d at 190).
BMWE argues that its claim in Award No. 11 notified UP that the remedy that Rule 21(f) of the CBA provided was at stake in Award No. 11 and that UP's failure to raise a defense to Rule 21(f)'s application prevents UP from doing so now to justify its noncompliance with the Award. The fact that BMWE is arguing that Award No. 11 affects disciplines other than the one specifically challenged during the Award No. 11 proceeding distinguishes this case from International Chemical Workers Union. In that case it was clear that the remedy sought related only to the discipline that was at issue in the arbitration. This was in no small part due to the fact that the discipline the employee was challenging was his dismissal from the company, and it is hard to imagine how the employee could have received subsequent discipline. In contrast, the claim that BMWE submitted to the PLB during the Award No. 11 proceeding does not make clear that it was seeking the reassessment of all of Sotomayor's disciplines, even though it was only formally challenging one. Specifically, nowhere in the claim did BMWE specify that it was seeking the reassessment of Sotomayor's second and third disciplines. Indeed, the claim does not even mention them. It only refers to the discipline assessed for the EEO Infraction. This is significant because Sotomayor signed the waiver with respect to the Rules Copy Infraction, not the EEO Infraction. Additionally, even if BMWE's claim placed UP on notice that Rule 21(f) was at issue during the Award No. 11 proceeding, Rule 21(f) did not provide sufficient notice to UP that all of Sotomayor's disciplines were in play. Nowhere in the language of Rule 21(f) did it explicitly discuss progressive discipline or the effect that the vacatur of a discipline had on already-assessed subsequent disciplines. It is possible that Rule 21(f) required the reassessment of discipline already imposed, but whether the rule required it, and whether it was sufficiently clear to put a company on notice that such a reassessment was at stake, are separate matters. The present inquiry is only concerned with the latter. Because neither BMWE's claim in Award No. 11 nor Rule 21(f) clearly indicated that the reassessment of Sotomayor's subsequent disciplines was at stake during the Award No. 11 proceeding, the court declines to hold that UP waived its ability to rely on Sotomayor's waiver by not raising the issue during the proceeding. The CBA may dictate a different outcome, but that is not for the court to determine.
The court's holding that UP did not as a matter of law relinquish its right to rely on Sotomayor's waiver does not, of course, prevent a PLB or other entity from reaching a contrary result as a factual matter.
In determining the proper disposition of the foregoing and additional arguments questioning the validity of the waiver, the court notes that these issues were not formally presented to the PLB for decision during the Award No. 11 proceeding, because the claim submitted at that time contained no mention of the waiver. References to the waiver are also conspicuously missing from the claim presented to the PLB in the Award No. 14 proceeding. Although the PLB relied on the existence of Sotomayor's waiver to uphold his dismissal in Award No. 14, the Award does not specifically address whether Sotomayor's waiver is absolutely immune from attack. The PLB explicitly refused to entertain arguments respecting the waiver in Award No. 14, holding that the waiver could not be collaterally attacked in that proceeding. The Award does not say, however, that the waiver cannot be attacked in any proceeding. It is not clear from the Award that the PLB decided this issue. Thus the issues that BMWE has raised respecting Sotomayor's waiver and BMWE's failure to raise the issue during the Award No. 11 proceeding are questions that have not been definitively resolved by either Award. Because these issues were not submitted in the claims to the PLB in either Award No. 11 or Award No. 14, the framework established in Oil, Chemical Atomic Workers counsels that BMWE must pursue these arguments under the grievance procedures established in the CBA. See Oil, Chem. Atomic Workers, 677 F.2d at 495 ("A remand is not appropriate . . . where it would force a decision on an issue not previously submitted to the arbitrator. . . . [T]he Plaintiff must again invoke the grievance and arbitration procedure in order to resolve the collateral issue.").
4
Finally, BMWE requests that the court direct UP to reinstate Sotomayor. The court cannot, under the guise of enforcing Award No. 11, order that UP take this action, because the clear language of the Award does not provide for reinstatement, and the "court is required to enforce an arbitration award only as written by the arbitrator." Brown, 340 F.3d at 216.
C
Accordingly, the court denies the parties' cross-motions for summary judgment concerning Award No. 11, except to the extent that it grants BMWE's motion to enforce Award No. 11 to remove references in Sotomayor's personnel record to the discipline for the EEO Infraction. The court remands to the PLB the question whether Award No. 11 requires UP to abrogate the effect of the EEO Infraction discipline from Sotomayor's subsequent disciplines. The court holds as a matter of law that UP did not waive the right to rely on Sotomayor's waiver. BMWE's other arguments respecting Sotomayor's waiver and UP's alleged duty to raise the waiver issue during the Award No. 11 proceeding must be pursued through the grievance procedures established in the CBA.IV
The court now turns to BMWE's request for review of Award No. 14. "Under the RLA, employee grievances regarding termination are categorized as minor disputes and are to be resolved by arbitration." Robinson v. Union Pac. R.R., 245 F.3d 1188, 1191 (10th Cir. 2001) (citing Andrews v. Louisville Nashville R.R. Co., 406 U.S. 320, 322-23 (1972)). BMWE submitted to the PLB the dispute regarding the propriety of Sotomayor's dismissal, and the Board decided in UP's favor. The court must now determine whether UP is entitled to summary judgment on BMWE's petition to review Award No. 14. The question presented is whether BMWE has provided any evidence that the PLB in issuing Award No. 14 failed to conform to the jurisdiction the parties gave it or dispensed its own brand of industrial justice, contrary to the requirements of the RLA.
BMWE maintains that, by not acknowledging the impact that Award No. 11 had on the discipline assessed for the Rule Book and Safety Rule Infractions, the PLB failed in Award No. 14 to conform to the jurisdiction the parties conferred on it. In Communications Workers of Am.-Int'l Union of Electronic, Electrical, Machine, and Furniture Workers, AFL-CIO Local 787 v. Alcatel U.S.A. Marketing, Inc., 2003 WL 21882423 (N.D. Tex. Aug. 8, 2003) (Lindsay, J.) (adopting recommendation of magistrate judge), Judge Lindsay rejected a similar argument. Id. at *4-*5. There a company argued that an arbitration award failed to draw its essence from the parties' CBA because the arbitrator did not take into account a prior award's alleged preclusive effect. Id. at *4. Judge Lindsay reasoned that it was for the arbitrator to decide the preclusive effect of another arbitration award, not the court. Id. at *5 ("[T]he court cannot address Alcatel's preclusion argument without quantifying the substantive issues that the parties have committed to arbitration. Accordingly, it cannot delineate the controlling facts governing each award; to do so would usurp the jurisdiction and authority of [the second arbitrator]. Whether the [first arbitrator's] award precludes enforcement of [the second arbitrator's] award is an issue for [the second arbitrator], not the court, to address." (citations omitted)).
The court rejects BMWE's argument on the same basis. BMWE's reasoning fails in light of the court's conclusion that it cannot interpret Award No. 11 in the manner for which BMWE contends because the interpretation is not clear from the language of Award No. 11. Moreover, as previously explained, Award No. 14 does not indicate that the PLB interpreted Award No. 11 according to BMWE's view of the Award. Thus it is yet unclear whether Award No. 11 in fact impacts Sotomayor's subsequent disciplines. It is apparent, however, that the PLB upheld Sotomayor's dismissal in Award No. 14. Award No. 14 must be upheld as long as it "draws its essence from the collective bargaining agreement," United Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 36 (1987) (quoting United Steelworkers of America v. Enterprise Wheel Car Corp., 363 U.S. 593, 597 (1960)), and its interpretation of the agreement is not "wholly baseless and completely without reason," Eastern Air Lines, 580 F.2d at 172 (quoting Gunther, 382 U.S. at 261). The PLB's decision in Award No. 14 meets these standards. Although the PLB did not explicitly mention the CBA as the basis for its decision in Award No. 14, the standard by which a court reviews arbitration awards is so deferential that "[a] mere ambiguity in the opinion accompanying an award, which permits the inference that the arbitrator may have exceeded his authority, is not a reason for refusing to enforce the award. Arbitrators have no obligation to the court to give their reasons for an award." United Steelworkers, 363 U.S. at 598. The court "does not review the language used by, or the reasoning of, the arbitrators in determining whether their award draws its essence from the contract. [It] looks only to the result reached. The single question is whether the award, however arrived at, is rationally inferable from the contract." Anderman/Smith Operating Co. v. Tenn. Gas Pipeline Co., 918 F.2d 1215, 1219 n. 3 (5th Cir. 1990).
The PLB relied on Sotomayor's waiver concerning the Rule Book Infraction in sustaining his dismissal for the Safety Rule Infraction. UP invokes Rule 21(a)(2) (g) to argue that, by waiving his right to an investigative hearing for the Rule Book Infraction, Sotomayor forfeited his right to grieve the discipline. The language of Award No. 14 supports such an interpretation, at least with respect to attacking the waiver during the Award No. 14 proceeding. The court need not decide whether this was the basis for the PLB's decision in Award No. 14. In any case, UP's argument is one that is "rationally inferable from the contract," and it cannot be said that the PLB's decision was "wholly baseless."
BMWE also argues that the PLB's finding that the penalty of termination was not arbitrary, capricious, or excessive was unauthorized by and contrary to UP's Progressive Discipline Policy. It maintains that the PLB dispensed its own brand of industrial justice, contrary to the requirements of the RLA. BMWE does not cite any provision of the RLA that the PLB allegedly violated. The argument seems to be based on the same theory as BMWE's other claims and is little more than a reassertion of its view that its interpretation of Award No. 11 is the correct one. The PLB concluded in Award No. 14 that the discipline assessed for the Rule Book Infraction could not be collaterally attacked during the Award No. 14 proceeding. It concluded that Sotomayor's dismissal was not improper. Under the high level of deference due the PLB's judgment, the court cannot disturb the decision.
Therefore, the court grants UP's motion for summary judgment with respect to BMWE's petition for review of Award No. 14 and dismisses BMWE's petition in this respect.
As the court explains infra at § V, this ruling does not preclude a later decision abrogating the effect of Award No. 14.
V
The parties' arguments and the court's conclusions today raise several questions for which there are currently no final answers. The resolution of these questions will likely affect the eventual outcome of the parties' dispute regarding Sotomayor's various disciplines. The court therefore articulates what it has not decided.First, neither Award No. 11 nor Award No. 14 clearly indicates whether Award No. 11 requires UP to abrogate the effect of the discipline assessed for the EEO Infraction on Sotomayor's subsequent disciplines. Because the dispute arises out of a disagreement regarding what the language of Award No. 11 requires, this question must be remanded to the PLB to clarify the Award. If the PLB concludes on remand that Award No. 11 does not require the reassessment of subsequent disciplines, this conclusion would appear to resolve to parties' dispute. If the PLB does decide, however, that Award No. 11 requires reassessment of these disciplines, the issue whether Sotomayor's waiver in connection with the Rule Book Infraction somehow excuses UP from complying with this mandate remains to be resolved.
Second, the court holds as a matter of law that UP did not waive any right it would otherwise have to rely on Sotomayor's waiver by not raising the issue during the Award No. 11 proceeding. The court's decision does not prevent a PLB or another entity charged with resolving disputes under the CBA from concluding that the CBA dictates a different result. Nor does the court suggest an opinion regarding whether BMWE would be able to raise this argument in a new grievance.
Third, BMWE's arguments respecting the validity of Sotomayor's waiver must be pursued through grievance procedures. Neither Award No. 11 nor Award No. 14 clearly addresses these arguments, and they were not submitted as part of the claim in either case. Additionally, although Award No. 14 references the waiver, the language does not indicate that further attacks on the waiver are foreclosed, only that they were not available in that proceeding. By holding that BMWE's waiver arguments must be raised through grievance procedures, the court intimates no opinion on whether BMWE may grieve these arguments under the CBA or what the proper procedure would be for doing so. The court does note that if BMWE is able to attack successfully Sotomayor's waiver, this may call into question the validity of Award No. 14, because that Award appears to rely on the existence of the waiver in upholding Sotomayor's discipline. This would appear to depend on whether Award No. 11 actually requires UP to abrogate the effect of the EEO Infraction discipline from subsequent disciplines. In noting this, the court suggests no opinion concerning whether a successful attack on Sotomayor's waiver would undermine Award No. 14.
Fourth, even if the PLB finds on remand that Award No. 11 requires the abrogation of the effect of the EEO Infraction discipline on other disciplines, it is unclear whether Sotomayor's waiver would excuse UP from complying with the Award. Although the PLB relied on the waiver to uphold Sotomayor's dismissal in Award No. 14, the Award does not indicate that the PLB decided the scope of Award No. 11. Thus if the waiver stands because BMWE fails to grieve successfully its arguments pertaining to it, it would seem to be an open question whether the waiver excuses UP from complying with Award No. 11.
Fifth, nothing in this opinion prevents a properly-authorized PLB or arbitrator from deciding whether Award No. 14 should be given preclusive effect with respect to the aforementioned questions. The court renders no opinion on the issue, recognizing that it is appropriate for an arbitrator to decide whether an award is to be given preclusive effect. See New Orleans S.S. Ass'n v. Gen. Longshore Workers, 626 F.2d 455, 468 (5th Cir. 1980) ("Whether the award can be given an effect akin to res judicata or stare decisis with regard to future disputes that may arise between the parties, neither the district court nor this court should decide. If the parties do not agree, that issue itself is a proper subject for arbitration."), aff'd sub nom. Jacksonville Bulk Terminals, Inc. v. Int'l Longshoremen's Ass'n, 457 U.S. 702 (1982); Communications Workers of Am., 2003 WL 21882423, at *5 (deciding that whether one award precluded enforcement of subsequent award was to be decided by arbitrator deciding the latter award, not by court). Specifically, the court renders no opinion as to whether Award No. 14 precludes further attacks on Sotomayor's waiver or on the disciplines assessed for the Rule Book Infraction and the Safety Rule Infraction.
Based on the foregoing, it appears that resolution to the parties' arguments may turn on the following: (1) the PLB's determination of Award No. 11's proper scope; (2) whether UP waived (as a factual matter) its ability to rely on Sotomayor's waiver by not raising the issue during the Award No. 11 proceeding; (3) if the waiver is successfully attacked, the effect this may have on Award No. 14; (4) if Sotomayor's waiver remains unimpeached, the effect it has on the applicability of Award No. 11 to Sotomayor's second and third disciplines; and (5) the preclusive effect, if any, Award No. 14 has on the determination of these questions. Even if on remand the PLB determines that Award No. 11 requires the abrogation of the effect of the EEO Infraction discipline from Sotomayor's other disciplines, it is not clear that this will require UP to reassess these disciplines because of the effect Sotomayor's waiver may have on the determination. Thus all the foregoing questions should be resolved before either party returns to this court to enforce Award No. 11.
* * *
The court grants in part and denies in part both parties' motions for summary judgment. The court enforces Award No. 11 in part, and it remands Award No. 11 in part to the PLB for further proceedings in accordance with this memorandum opinion and order. The court dismisses BMWE's petition for review of Award No. 14.