UNITED STATES COURT 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 district court’s enforcement of an 

arbitration order issued by the National Railroad Adjustment Board (“NRAB”). 

See 45 U.S.C. § 153 First (p). BNSF contends the NRAB’s award was unenforceable 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive 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
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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 NRAB for resolution. We perceive no ambiguity and 

accordingly affirm the district 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 (collectively, “Union”), challenged the 

dismissal before the NRAB, seeking reinstatement and back pay without offset for 

outside earnings. In its brief to the NRAB, the Union stated its claim as follows: 

It is hereby requested that Engineer Hylan’s discipline be reversed with 

seniority unimpaired, requesting pay for all time lost, without deduction 

of outside earnings, including the day(s) for investigation, with 

restoration of full benefits and that notation of dismissal on his personal 

record be removed, resulting from investigation held on September 29, 

2009. 

Aplt. App. at 17 (emphasis added, internal quotation marks omitted). In particular, 

the Union argued that Mr. Hylan was entitled to back pay without offset for outside 

wages earned during his period of dismissal. Although the Union acknowledged 

BNSF’s contrary position, it insisted the railroad 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, 
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moreover, that its “argument is not one of first impression” 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 statement of the claim verbatim. The NRAB then evaluated 

the parties’ procedural and substantive arguments, stating, “The Board carefully 

reviewed the evidence and arguments in the instant case.” Id. at 40. And in its 

penultimate paragraph, entitled, “AWARD,” the NRAB stated: “Claim sustained.” 

Id. at 42. The NRAB’s final paragraph, entitled, “ORDER,” provided: “This Board, 

after consideration of the dispute identified above, hereby orders that an award 

favorable to the Claimant(s) be made. The Carrier is ordered to make the Award 

effective on or before 30 days following the postmark date the Award is transmitted 

to the parties.” Id.

After the NRAB issued its decision, BNSF requested that Mr. Hylan document 

his outside earnings made during 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 reinstatement to service differs from the 

[Union’s].” Id. at 45. The Union returned to the NRAB for an interpretation of the 

award, but before the NRAB responded, the Union withdrew its request and filed in 

the district court a petition to enforce the order. See 45 U.S.C. § 153 First (p). 
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In its petition, the Union argued that the NRAB order was unambiguous and 

enforceable as written. BNSF moved to dismiss, claiming the district court lacked 

jurisdiction to enforce the order. See Fed. R. Civ. P. 12(b)(1). BNSF asserted its 

disagreement over the meaning of the award was a “minor dispute” within the 

exclusive jurisdiction of the NRAB. Alternatively, BNSF asserted the award was 

ambiguous and should be remanded to the NRAB for clarification. 

The district court denied BNSF’s motion and enforced the award without any 

offset to Mr. Hylan’s back pay. 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 claim as seeking to preclude any 

deductions for outside earnings, and the NRAB 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 dispute” 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. 
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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 Court” an application for enforcement of the 

award. 45 U.S.C. § 153 First (p). This provision gives district courts jurisdiction to 

enforce or set aside unambiguous NRAB awards. But we have recognized “that the 

range of judicial review in enforcement 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 (10th 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 uniformly made NRAB orders, including those 

containing money awards, “‘final and binding upon both parties 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”). 
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Coupled with these changes aimed at preserving the finality of NRAB awards, 

Congress also restricted the scope of judicial review. Under § 153 First (p), “an 

employee who obtained a monetary award against a carrier could sue to enforce it, 

and the court could either enforce the award or set it aside.” Union Pac. R.R. Co. v.

Bhd. of Locomotive Eng’rs & Trainmen, 558 U.S. 67, 74-75 (2009). But with the 

1966 amendments, Congress limited the grounds on which an award could be set 

aside to only three: (1) the NRAB failed to comply with the requirements of the 

RLA; (2) the NRAB failed 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 statutory grounds for review, district courts 

lack jurisdiction to consider 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 statutory grounds for review, and indeed, 

none apply. This would seem to foreclose the district court’s jurisdiction to do 

anything but enforce the award, but BNSF contends these limited 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 rather clarify “what the arbitrator intended with respect 

to offset.” Reply Br. at 11. For this limited purpose, BNSF contends the RLA does 

not preclude the district court from remanding the case to the NRAB for clarification. 

This argument is unpersuasive, and our decision in Blackett explains why. 
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In Blackett, a railroad employee obtained an award from the NRAB, but the 

railroad successfully petitioned the district court for an offset. 538 F.2d at 292. 

Reversing the district court, we held that the RLA “makes no provision for allowance 

of an offset” and “[i]n the absence of such a grant the district court lacked 

jurisdiction to thus modify the award.” Id. at 294. Insisting on a jurisdictional 

predicate for review, we reiterated 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) (recognizing 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 “left no room for a modification. It was positive in its form 

and its effect was unmistakable. It awarded the whole of the claim.” Blackett, 

538 F.2d at 294. And absent any other jurisdictional basis for review, we concluded 

that the district court should have enforced the award. Id. 

Blackett compels us to conclude that the district court properly enforced the 

award. BNSF attempts to distinguish Blackett as a case in which 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 award in the first place. BNSF asserts the 

RLA’s restrictions do not apply because the award is ambiguous, but we find nothing 
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to suggest any ambiguity.1

 The NRAB defined the claim as seeking back pay 

“without deduction of outside earnings.” Aplt. App. at 39 (emphasis added, 

quotations omitted). The parties argued their positions and the NRAB sustained the 

claim in full, without any limitation or equivocation. As in Blackett, the award “was 

positive in its form and its effect was unmistakable. It awarded the whole of the 

claim.” 538 F.2d at 294. Hence, the district court properly enforced the award.2

 

1

 We recognize that some courts have found it appropriate to remand when there 

is ambiguity in either the NRAB’s award or the parties’ underlying collective 

bargaining agreement. See, e.g., Int’l Ass’n of Machinists 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 Union 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 portion 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 ambiguities 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 discussed above, the award is not ambiguous. 

2

 As a practical matter, we note that BNSF’s position is premised on § 153 First 

(m), which provides, “In case a dispute arises involving an interpretation of the 

award, the [NRAB] upon request of either party 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 petition the district court for enforcement, 

nothing prevented BNSF from independently seeking an interpretation from the 

NRAB. In fact, BNSF apparently did request 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 this appeal what it 

failed to timely request during arbitration. 
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B. Conrail Line of Authority is Inapposite 

Seeking to avoid this result, BNSF attempts to transform this case into a 

dispute over the parties’ collective bargaining agreement. Under Conrail, disputes 

that “arise ‘out of the interpretation or application of’ existing collective bargaining 

agreements” are classified as “minor disputes” subject to binding 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 argument, however, is that the parties do not invoke the 

collective bargaining agreement (“CBA”). Indeed, not one of its provisions—either 

express or implied—is involved and both sides agree that the CBA is silent on the 

issue of offset. BNSF admits, moreover, that there is “arbitral authority on both sides 

of the issue,” Aplt. Br. at 6, all of which demonstrates that this dispute cannot “be 

conclusively resolved by interpreting the existing [CBA],” Bhd. of Maint. of Way 

Emps. Div., 596 F.3d at 1222-23 (internal quotation marks omitted). 

Nevertheless, BNSF contends that a “‘[d]isagreement about the meaning of an 

award amounts to disagreement about the 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 
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meaning of [the parties’] collective bargaining agreement,” 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” interpretation of the award. Aplt. Br. at 12. According to 

BNSF, so long as its interpretation of the award is “arguable,” based on other NRAB 

remedies allowing offset, this is a minor dispute subject to binding arbitration. But 

the problem with this contention is that it confuses the award with the CBA. 

As we explained in Brotherhood of Maintenance 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 the contested action is ‘arguably justified’ by the terms of 

the collective bargaining agreement.” Id. This standard requires 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 award is arguably justified by other NRAB 

decisions, but the question is whether its claim is arguably justified by the CBA. 
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And without the CBA, this argument is doomed from the start. Moreover, it would 

be inappropriate to classify this as a minor dispute based on other arbitration 

remedies that, as BNSF acknowledges, are 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 disputes based on what 

arbitrators say rather than our own assessment of the CBA and the parties’ practice, 

usage, and custom. As the Seventh 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 district court is affirmed. 

Entered for the Court 

 Scott M. Matheson, Jr. 

 Circuit Judge