UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN; JOHN W. HYLAN, Petitioners-Appellees,

v. BNSF RAILWAY COMPANY, a Delaware corporation, Respondent-Appellant. No. 13-8025 (D.C. No. 2:12-CV-00277-ABJ) (D. Wyo.)

ORDER AND JUDGMENT *

Before MATHESON , Circuit Judge, PORFILIO , Senior Circuit Judge, and O’BRIEN , Circuit Judge.
BNSF Railway Company appeals the dist rict court’s enforcement of an arbitration order issued by the National Railroad Adjustment Board (“NRAB”).
See 45 U.S.C. § 153 First (p). BNSF conte nds the NRAB’s award was unenforceable

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 9, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - due to ambiguity about whether an award of back pay was subject to offset (i.e., reduction for outside compensation received), and thus the district court should have remanded the case to the NR AB for resolution. We perceive no ambiguity and accordingly affirm the dist rict court’s judgment. I. Background John W. Hylan worked for BNSF as a locomotive engineer. When he was fired for taking unauthorized leave, Mr. Hylan and his union, the Brotherhood of Locomotive Engineers and Trainmen (col lectively, “Union”), challenged the dismissal before the NRAB, seeking reinst atement and back pay without offset for outside earnings. In its brief to the NRAB , the Union stated it s claim as follows: It is hereby requested that Engineer Hylan’s discipline be reversed with seniority unimpaired, request ing pay for all time lost, without deduction of outside earnings , including the day(s) for investigation, with restoration of full benefi ts and that notation of dismissal on his personal record be removed, resulting from i nvestigation held on September 29, 2009. Aplt. App. at 17 (emphasis added, internal quotation marks omitted ). In particular, the Union argued that Mr. Hyla n was entitled to back pay without offset for outside wages earned during his period of dism issal. Although the Union acknowledged BNSF’s contrary position, it insisted the ra ilroad had no “right to deduct outside earnings from [Mr. Hylan’s] back pay.” Id. at 24. For its part, BNSF defended its decision to fire Mr. Hylan and argued that if he were reinstated, back pay should be denied and “any award for lost wages should be offset with outside earnings and job insurance payments.” Id. at 37. BNSF asserted,- 3 - moreover, that its “argument is not one of first impre ssion” and “numerous awards recognize the Company’s right to offset outside earnings.” Id. The NRAB ruled in favor of the Union. In its decision, the NRAB first reiterated the Union’s statem ent of the claim verbatim. The NRAB then evaluated the parties’ procedural and substantive arguments, stating, “The Board carefully reviewed the evidence and argumen ts in the instant case.” Id. at 40. And in its penultimate paragraph, entitled, “AWARD,” th e NRAB stated: “Claim sustained.” Id. at 42. The NRAB’s final paragraph, en titled, “ORDER,” provided: “This Board, after consideration of the dispute identif ied above, hereby orders that an award favorable to the Claimant(s) be made. Th e Carrier is ordered to make the Award effective on or before 30 days following th e postmark date the Awa rd is transmitted to the parties.” Id. After the NRAB issued its decision, BNSF requested that Mr. Hylan document his outside earnings made dur ing the period of dismissal. According to BNSF, the award permitted the offset of Mr. Hylan’s outside wages from his back pay award. The Union protested, but BNSF replied, “Unfortunately, BNSF’s interpretation of the [NRAB] Award governing Mr. Hylan’s rein statement to service differs from the [Union’s].” Id. at 45. The Union returned to th e NRAB for an interpretation of the award, but before the NRAB responded, th e Union withdrew its request and filed in the district court a pet ition to enforce the order. See 45 U.S.C. § 153 First (p).- 4 - In its petition, the Union argued that the NRAB order was unambiguous and enforceable as written. BNSF moved to di smiss, claiming the di strict court lacked jurisdiction to enforce the order. See Fed. R. Civ. P. 12(b )(1). BNSF asserted its disagreement over the meaning of the aw ard was a “minor dispute” within the exclusive jurisdiction of the NRAB. Alte rnatively, BNSF asserted the award was ambiguous and should be remanded to the NRAB for clarification. The district court denied BNSF’s moti on and enforced the award without any offset to Mr. Hylan’s back pa y. The court ruled that it had jurisdiction to enforce the order under 45 U.S.C. § 153 First (p) so long as the NRAB order required no interpretation. Because the order clearly defined the clai m as seeking to preclude any deductions for outside earnings, and the NR AB unambiguously sustained that claim without qualification, the court reasoned that the order necessarily precluded any offset. BNSF appealed that ruling. II. Discussion BNSF argues the district court lacked jurisdiction to enforce the NRAB’s award. Building on its assertion that the award is ambiguous, BNSF contends that if its interpretation of the award is “arguable, ” then its disagreement over the meaning of the award constitutes a “minor dis pute” that, under Supreme Court precedent, belongs only before the NRAB. See Consol. Rail Corp. v. Ry. Labor Execs. Ass’n , 491 U.S. 299, 304-05 (1989) (“ Conrail ”). We review the district court’s jurisdictional determination de novo, Bhd. of Maint. of Way Emps. v. Burlington N.- 5 - Santa Fe Ry. Co. , 596 F.3d 1217, 1221 (10th Cir. 2010), and conclude that the court properly enforced the award. A. Grounds for Review under the Railway Labor Act The Railway Labor Act (“RLA”) states that “[i]f a carrier does not comply with an order of a division of the [NRAB] within the time limit in such order, the petitioner . . . may file in the District Cour t” an application fo r enforcement of the award. 45 U.S.C. § 153 First (p). This prov ision gives district c ourts jurisdiction to enforce or set aside unambiguous NRAB aw ards. But we have recognized “that the range of judicial review in enforcemen t cases is among the narrowest known to the law and that the findings and order of the [NRAB] are conclusive.” Denver & Rio Grande W. R.R. Co. v. Blackett , 538 F.2d 291, 293 (10t h Cir. 1976) (discussing 45 U.S.C. § 153 First (p)). Although courts once had authority to review NRAB orders to the extent they contained money awards, see Gunther v. San Diego & Ariz. E. Ry. Co. , 382 U.S. 257, 260, 264 & n.3 (1965), the 1966 amendments to the RLA eliminated this authority and uniform ly made NRAB orde rs, including those containing money awards, “‘fi nal and binding upon both pa rties to the dispute,’” Bhd. of R.R. Trainmen v. Denver & Rio Grande W. R.R. Co. , 370 F.2d 833, 835 (10th Cir. 1966) (quoting 45 U.S. C. § 153 First (m)); see also Diamond v. Terminal Ry. Ala. State Docks , 421 F.2d 228, 233 (5th Cir. 1970) (explaining that under 45 U.S.C. § 153 First (m), “awards are ‘final and binding’ upon the parties”).- 6 - Coupled with these changes aimed at pr eserving the finality of NRAB awards, Congress also restricted the scope of judi cial review. Under § 153 First (p), “an employee who obtained a monetary award agai nst a carrier could sue to enforce it, and the court could either enfor ce the award or set it aside.” Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen , 558 U.S. 67, 74-75 (2 009). But with the 1966 amendments, Congress limited the gr ounds on which an award could be set aside to only three: (1) th e NRAB failed to comply w ith the requirements of the RLA; (2) the NRAB fail ed to conform or confine itself to matters within the scope of its jurisdiction; or (3) the NRAB was influenced by fraud or corruption. Blackett , 538 F.2d at 293. Absent one of these stat utory grounds for revi ew, district courts lack jurisdiction to consid er the amount of an award. See id. at 294; Denver & Rio Grande W. R.R. Co. , 370 F.2d at 835. Here, BNSF invokes none of the statut ory grounds for review, and indeed, none apply. This would se em to foreclose the district court’s jurisdiction to do anything but enforce the award, but BNSF contends these lim ited grounds on which an award may be set aside are irrelevant. According to BNSF, it is not seeking to set aside the NRAB’s order but ra ther clarify “what the arbitr ator intended with respect to offset.” Reply Br. at 11. For this limited purpose , BNSF contends the RLA does not preclude the district cour t from remanding the case to th e NRAB for clarification. This argument is unpersuasi ve, and our decision in Blackett explains why.- 7 - In Blackett , a railroad employee obtained an award from the NRAB, but the railroad successfully petitioned the district court for an o ffset. 538 F.2d at 292. Reversing the district court, we held that the RLA “mak es no provision for allowance of an offset” and “[i]n the absence of such a grant the dist rict court lacked jurisdiction to thus modify the award.” Id. at 294. Insisting on a jurisdictional predicate for review, we reiter ated that the NRAB’s failure to specify “‘[t]he measure of damages . . . offers no jurisdictional question.’” Id. (quoting Denver & Rio Grande W. R.R. Co. , 370 F.2d at 836); see also Bhd. of Locomotive Eng’rs v. Union
Pac. R.R. Co. , 707 F.3d 791, 795 (7th Cir. 2013) (re cognizing that NRAB’s failure to specify the amount of damages implicates none of the RLA’s statutory grounds for review). We also explained that although the award, as in this case, simply stated, “‘claim sustained,’” it “lef t no room for a modification. It was positive in its form and its effect was unmista kable. It awarded the whole of the claim.” Blackett , 538 F.2d at 294. And absent any other juri sdictional basis for re view, we concluded that the district court should have enforced the award. Id. Blackett compels us to conclude that the district cour t properly enforced the award. BNSF attempts to distinguish Blackett as a case in whic h the district court improperly modified an award, but the point is that in neither Blackett nor this case is there a statutory ground for reviewing the aw ard in the first place. BNSF asserts the RLA’s restrictions do not apply because th e award is ambiguous, but we find nothing- 8 - to suggest any ambiguity. 1 The NRAB defined the cl aim as seeking back pay

“ without deduction of outside earnings. ” Aplt. App. at 39 (emphasis added, quotations omitted). The pa rties argued their positions and the NRAB sustained the claim in full, without any limit ation or equivocation. As in Blackett , the award “was positive in its form and its ef fect was unmistakable. It awarded the whole of the claim.” 538 F.2d at 294. Hence, the dist rict court properly enforced the award. 2

1 We recognize that some c ourts have found it appropria te to remand when there is ambiguity in either the NRAB’s awar d or the parties’ underlying collective bargaining agreement. See, e.g., Int’l Ass’n of Mach inists and Aerospace Workers, Dist. Lodge #19 v. Southern Pac. Transp. Co. , 626 F.2d 715, 718 (9th Cir. 1980) (award); Bhd. Ry. Carmen Div., Transp. Commc’ns Int’l Uni on v. Atchison, Topeka & Santa Fe Ry. Co. , 956 F.2d 156, 157 (7th Cir. 1992) (agreement). But courts also recognize that “[a]n award does not become so vague and indefinite as to be unenforceable simply because a party can argue that a porti on of it may be unclear or ambiguous.” Bhd. of Ry. Carmen v. Belt Ry. Co. of Chicago , 658 F. Supp. 136, 139 (N.D. Ill. 1987); accord Bhd. of Locomotive Eng’rs v. Union Pac. R.R. Co. , 500 F.3d 591, 593 (7th Cir. 2007) (“Trivial ambiguitie s in arbitration awards are not a ground for refusing to enforce them.” ). We need not consider the propriety of remanding for ambiguity here because as discusse d above, the award is not ambiguous.

2 As a practical matter, we note that BNSF’s position is prem ised on § 153 First (m), which provides, “In ca se a dispute arises involvi ng an interpretation of the award, the [NRAB] upon request of either pa rty shall interpret the award in light of the dispute.” Although BNSF speculates on why the Union elected to withdraw its request for an interpretation and instead pe tition the district cour t for enforcement, nothing prevented BNSF from independently seeking an interpretation from the NRAB. In fact, BNSF apparently did reque st an interpretation from the NRAB, but the Union refused to waive its limitations defenses. See Reply Br. at 2 n.1. It appears BNSF is belatedly attempting to accomplish through th is appeal what it failed to timely reque st during arbitration.- 9 - B. Conrail Line of Authority is Inapposite Seeking to avoid this result, BNSF atte mpts to transform this case into a dispute over the parties’ collect ive bargaining agreement. Under Conrail , disputes that “arise ‘out of the in terpretation or application o f’ existing collective bargaining agreements” are classified as “minor di sputes” subject to bi nding arbitration. Bhd. of Maint. of Way Emps. Div. , 596 F.3d at 1222-23 (quoting Conrail , 491 U.S. at 303). “‘The distinguishing feature of [a minor dispute] is that the dispute may be conclusively resolved by interpreting the existing collective bargaining agreement.’” Id. (quoting Conrail , 491 U.S. at 305). The problem with this argum ent, however, is that the parties do not invoke the collective bargaining agreem ent (“CBA”). Indeed, not one of its provisions—either express or implied—is invol ved and both sides agree that the CBA is silent on the issue of offset. BNSF admits , moreover, that there is “a rbitral authority on both sides of the issue,” Aplt. Br. at 6, all of which demonstrates that this dispute cannot “be conclusively resolved by inte rpreting the existing [CBA],” Bhd. of Maint. of Way Emps. Div. , 596 F.3d at 1222-23 (internal q uotation marks omitted). Nevertheless, BNSF contends that a “‘[d ]isagreement about the meaning of an award amounts to disagreement about th e meaning of the underlying collective bargaining agreement.’” Aplt. Br. at 11, quoting Bhd. of Maint. of Way Emps. v. Burlington N. R.R. Co. , 24 F.3d 937, 938, 940 (7th Cir. 1994) (“ BMWE ”). But consistent with Conrail , the dispute in BMWE presented “a question about the- 10 - meaning of [the parties’] collective bargaining agreemen t,” namely, the preclusive effect of the arbitration award. 24 F. 3d at 940. Here, by contrast, the dispute concerns an unambiguous award of money damages, which presents no jurisdictional question. See Blackett , 538 F.2d at 294; Denver & Rio Grande W. R.R. Co. , 370 F.2d
at 836. Even still, BNSF contends it can compel the Union to arbitrate simply by presenting an “arguable” interpre tation of the award. Aplt. Br. at 12. According to BNSF, so long as its interp retation of the award is “ar guable,” based on other NRAB remedies allowing offset, this is a minor dispute subject to binding arbitration. But the problem with this cont ention is that it confuses the award with the CBA. As we explained in Brotherhood of Mainte nance of Way Employees , the RLA’s goal of promoting arbitration requires that courts “deem a dispute as minor if it even remotely touches on the terms of the relevant collective bargaining agreement .” 596 F.3d at 1223 (emphasis added). To establish a minor dispute, “a party need only show that th e contested action is ‘arguably justified’ by the terms of the collective bargai ning agreement.” Id. This standard require s that “[w]e look first and primarily . . . to both the express and implied provisions of the [CBA],” as well as “the parties’ ‘practice, usage and custom,’” and other factors to determine whether a claim is arguably justified by the CBA. Id. (quoting Conrail , 491 U.S. at 311). BNSF says its interpretation of the awar d is arguably justified by other NRAB decisions, but the question is whether its claim is arguably justified by the CBA.- 11 - And without the CBA, this argument is doomed from the start. Moreover, it would be inappropriate to classi fy this as a minor disput e based on other arbitration remedies that, as BNSF acknowledges, ar e purely discretionary given the CBA’s silence on the matter, see Aplt. Br. at 15-16; Reply Br. at 12. We also would find ourselves in the unacceptable position of classifying disput es based on what arbitrators say rather than our own assessment of the CBA and the parties’ practice, usage, and custom. As the Se venth Circuit has observed, “[ i]t is for the judges to say what the law is, not for the arbitrators.” Bhd. of Maint. of Way Emps. v. Atchison, Topeka & Santa Fe Ry. Co. , 138 F.3d 635, 642 (7th Cir. 1997). The judgment of the dist rict court is affirmed. Entered for the Court

Scott M. Matheson, Jr. Circuit Judge