The Honorable Michael J. Melloy, Chief Judge, United Sta tes District Court for 1 the Northern District of Iowa, sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-2358

_____________ Brotherhood of Locomotive * Engineers International Union; * Kerry G. Timmons; James C. * Schlereth, * * Plaintiffs - Appellees, * Appeal from the United States * District Court for the v. * Eastern District of Missouri. * Union Pacific Railroad Company, * * Defendant - Appellee, * * United Transportation Union, * * Defendant - Appellant. *

_____________ Submitted: February 14, 1997
Filed:

_____________ Before HANSEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and MELLOY, District Judge.

1

_____________The Honorable Edward L. Filippine, United States District Judge for the Eastern 2 District of Missouri. 2 HANSEN, Circuit Judge.

The United Transportation Un ion (UTU) appeals from the district court's grant 2 of the plaintiffs' and the Union Pacific Railroad C ompany's (Union Pacific) motions for summary judgment. In its order, the district court vacated a decision of Public La w Board 4478 on the basis that it violated the Railway Labor Act (RLA), 45 U.S.C

. §§ 151-88 (1994). We affirm.

I.
In this case, we address the question of what participatory rig hts in an arbitration proceeding exist under the RLA when it involves two labor unions and a rail carrier. Bef ore turning to our discussion of the proceedings at issue here, we first place th e dispute in its factual context.

The twentieth

century has seen substantial changes in the railroad industry, not the le ast of which is the changing type of skilled work available for railroad workers. Inthe glory days of the steam-powered railroad industry, a fireman tended the fire in the s team locomotive. In addition, the fireman learned the skills and duties of th e engineer, the person who actually operated the locomotive. Eventually, a fireman could qualify to obt ain a promotion and become an engineer. Each craft existed separately, and while each craft had its own union, a single worker could be qualified both as a firemanand as an engineer and occupy a position on the seniority lists of each craft.

The relati onship between the positions of fireman and engineer lent itself to a system of "ebb and flow" with employees low on the engineer seniority list moving3

between po sitions as engineer and fireman as the demand for engineers fluctuated

. This system was governed by virtual ly identical "mileage regulations" in the collective bargaining agreements (CBAs) between the railroads and the labor organization s representing the two crafts. The mileage regulations set forth a benchmark of average monthly miles worked by

engineers. If the engineers' average miles dipped below the contr actual benchmarks, some engineers with less seniority would ebb to a firema n positi on. Firemen with the least seniority would be furloughed. When the mileag e
excee ded reinstatement benchmarks and more engineers were needed, qualifie d engineer s working as firemen would flow back into the newly available enginee r positions, and furloughed firemen would be recalled to work.

The flexible ebb and flow system faltered when diesel locomotives came int o exis tence. As diesel locomotives replaced the steam locomotives, the railroads' need for firemen disappeared. The railroads began to eliminate fireman positions throug h attrition, and the remaining firemen began to perform more "hostler" work, consisting of fueling and servicing the engines and moving engines within the rail yards. When work w as slow, engineers still ebbed down, displacing firemen who were moved t o performing more hostler work. But when business picked up and a rail carrier needed
more eng ineers, the qualified firemen who could work as engineers were too ofte n eit her on duty as firemen, or resting from work as firemen, or hostling in far-off rai l yards and not immediately available for engineer duty.

In an at tempt to solve this problem, several rail carriers, including the Unio n Pacific , jointly negotiated a mediation agreement with the UTU under which th e
ca rriers could eliminate the firemen through attrition and could recruit additiona l engineers from the class of workers known as "trainmen," a position that had no t become outdated with the advent of the diesel locomotives. The mediation agreement was not, however, a perfect solution.T hese boards are sometimes referred to as "guaranteed extra boards" o r 3 "suppleme ntal extra boards." (Union Pacific App. at 37, 41-44, 51-59.) Fo r consistency, we will call them "reserve boards." 4 The Uni on Pacific also agreed with the engineers' labor organization, th e Brotherhood of Locomotive Engin eers (BLE), to create "extra boards" containing lists of available engineers. However, because these extra boards were also governed by mileag e regulations, under which engineers ebbed down to firemen (which stil l involved the less desirab le hostling work), the problem of the availability of engineers upon demand remained.
Finally, the Uni on Pacific decided it needed a pool of engineers in reserve who would not ebb down to firemen and who would be available regardless of how many miles they worked. In 1986 and 1987, the Union Pacific and the BLE entered int o several agreements, establishing "reserve boards" of engineers. Unlike the regula r 3 extra boards, the reserve boards were not subject to the mileage regulations.

The UTU (the labor union representing the firemen) believed the BLE and the Union Paci fic’s agreements to create the new reserve boards violated the mileag e regulationprovisions in the firemen’s CBA between the UTU and the Union Pacific. These mileage regulation provis ions were virtually identical to the mileage regulations in the engine ers’ CBA between the BLE and the Union Pacific. The UTU contended that its CBA between the firemen and the Union Pacific prohibited the creation o f engineer positions in a manner contrary to the mileage regul ations which were common to both CBA s, and also restricted the number of engineer positions that could exist in any sen iority district. The UTU therefore objected to the creation of the new reserve boards c reated without the UTU's involvement or concurrence. The Union Pacifi c responded that the agreements establishing the new reserve boards were proper an d valid and that the BLE (not the UTU) had the exclusive authority to enter into5

agreements with the Union Pacific rega rding the creation of engineer positions and the conditions surrounding those positions.

When the UTU and the Union Pacific were unable to resolve their differences amicably, the UTU referred the matter to arbitration in accordance with Section 3 of the RLA, 45 U.S.C. § 153 Second (second paragraph). On January 26, 1988, t he UTU andthe Union Pacific entered into an agreement establishing a public law board t o answer the following question in issue:

Under the provisions of the Labor Contract between the [UTU] and the [UnionPacific] . . . , may [Union Pacific] enter into agreements with another labor organization that have for their purpose the establishmen t of extra boards for engineers (including, but not limited to reserve , auxiliary , and guaranteed boards) which are not regulated in accordance with the p rovisions of the [UTU] Agreement or are established to create en gineer positions that are not called for under the mileage regulation s and/or the requirements of the service as contemplated and required b y the rules of the [UTU]?

(Appellant's App. at 85.) The parties established Publ ic Law Board 4478 (the Criswell Board), consisting of two partisan members (one selected by the UTU and one by the Union Pacific) and one neutral member, John B. Criswell.
Upon n otification in February 1988 of the proposed arbitration, the then

chairman of the BLE requested leave to participate as an "interested third party" in the event that the matter did indeed proceed to arbitration. The Union Pacific replied , noting that the BLE appeared to have a third party interest in the suit and stating that it would keep the BLE informed of developments in connection with the dispute. The UTU acquiesced in third party status for the BLE without objection.6

The parties took no further action regarding the arbitration before the Criswell Board, but instead turned their attention to another dispute between them that ha d arisen ou t of the merger between the Union Pacific and another rail carrier. Thi s dispute resulted in the creation of yet another public law board, the LaRocco Board

. The configuration of the LaRo cco Board included the BLE and the Union Pacific, this time holding opposing views and each represented by a board member, and the UTU app eared as an interested third party. The LaRocco Board issued its decision i n January 1990 and ruled in favor of the BLE, holding that the Union Pacific could not reduce or discontinue its use of the new reserve boards in certain seniority districts.

The Criswell board did not meet until June 1990. B y that time, as a result of the dispute between the Union Pacific and the BLE in the LaRocco arbitration, the BL E no longer felt comfortable with just "third party status " before the Criswell Board. The BLE no longer trusted that the Union Pacific would adequately advocate the validity of the agre ements between the BLE and the Union Pacific creating the new reserv e boards. The BLE was concerned that the Union Pacific could a void the intended effect of the LaRocco award if the new reserve board agreements were found invalid by the Criswell Board. When the Criswell Board convened, but before the board met i n
execu tive session and before the board voted on the dispute, the BLE's Genera l Chairmanappeared on the BLE's behalf and requested that the BLE be permitted t o participate fully in the arbitration, not merely as an "interested third party." The BLE argued that because its agreements with the Union Pacific were at stake, the BL E should have a voting member on the board, should participate in choosing the neutral member of the board, and should participate in formulating the question at issue. The BLE also argued that the Criswell Board lacked jurisdiction to decide the question at issue, because the question implicated repres entational issues, the resolutions of which were in the exclusive jurisdiction of the National Mediation Board.

The neutr al arbitrator, Criswell, rejected the BLE's objections and denied th e BLE's request to be a full member o n the Board. Consequently, the BLE presented its7

argumen ts only as an interested third party, without the right to attend the Board' s clos ed executive session. The Criswell Board issued its award on August 22, 1991 , finding that the Union Pacific "may not negotiate with either of the unions separately an agreement which has for its purpose abrogation, change, or evasion of agreements existing with the other." ( Id. )
Shortly after the Criswell award was rendered, the BLE and two of its members filed the instant complaint in the United States District Court for the Eastern District of Miss ouri. The plaintiffs first sought an order enforcing the LaRocco award. They also sought an order vacating the Criswell award based upon lack of jurisdiction and noncompliance with the requirements of the RLA. The UTU filed a cross claim against th e Union Pacific, seeking enforcement of the Criswell award. The parties then filed motions for summary judgment. On April 15, 1996, the district court granted th e plaintiffs' and the Union Pacific's motions in part, vacating the Criswell award for the board’s noncompliance with the RLA. Accordingly, the court denied the UTU 's motion to enforce the Cr

iswell award. Also, the court denied without prejudice the plaintiffs'
an d the Union Pacific's motions seeking enforcement of the LaRocco award, findin g (at the p arties' suggestion) the issue to be moot. The court did not reach the parties '
ar guments regarding the Criswell Board's jurisdiction. The UTU now appeals th e d i strict court's determination that the Criswell award was rendered in violation of the RLA.

II.

We review the district court's grant of summary judgment de novo. Summary judgment is appropriate when there is no genui ne issue of material fact and the moving part y is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986).8

Arbitration before a board o f adjustment authorized by the second paragraph of 45 U.S.C. § 153 Second, commonly referred to as a public law board (PLB), see 2 9 C.F.R. § 1207.1 (1997), is a method of resolving minor disputes, that is, "dispute s between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation o r application of agreements concerning rates of pay, rules, or working conditions." 45 U.S.C. § 153 First (i); see id. § 153 Secon d (auth orizing arbitration before PLBs "to resolve disputes otherwise referable to th e [National Railroad] Adjustment Board" under section 153 First). Congress created this optional mechanism for dispute resolution in a 1966 amendment to the RLA as a result of the backlog of cases then pending before the National Railroad Adjustment Board (NRAB). Doug las L. Leslie, The Railway Labor Act 58-59 (Douglas L. Leslie et al., eds., 1995).

The RLA sets forth the procedure for establishing PLBs. See 45 U.S.C. § 153 Second ( second paragraph); 29 C.F.R. § 1207 (1994). Either a union or a rail carrier
ma y request that the other party join in an agreement to establish a PLB to resolve a collective bargaining dispute. The PLB "shall consist of one person designated by the carrier and one person desi gnated by the representative of the employees." 45 U.S.C. § 153 Second. "The members of the board so designated shall determine all matters not previously agreed upon by the carrier and the representative of the employees with
res pectto the establishment and jurisdiction of the board." Id. If the partisan boar d members a re unable to resolve the dispute, they must attempt to agree to select a neutral bo ard member or request the National Mediation Board to appoint a neutra l membe r who will decide the matter. "Any two members of the board shall b e competent to render an award." Id. The PLB's decision is ? final and binding upon both parties to the dispute.” Id.
The scope of judicial review of a PLB's decision under the RLA is quite narrow. Awards of PLBs are enforceable in the same manner as are awards of the NRAB. Id. As a general matter, the PL B's findings and its order are conclusive on the parties. 459

U

. S.C. § 153 First (q); see also Brotherhood of Locomotive Eng'rs v. Louisville & N. R.R. , 373 U.S. 33, 39 (1963) (noting Congress intended the re medies provided by these boards "to be the complete and final means for settling minor disputes"). We will set aside a PLB's decision only for (1) failure to comply with RLA requirements, (2) failure to confine itself to matters within its jurisdiction, or (3) fraud or corruption by a Board
me mber. 45 U.S.C. § 153 First (q); Union Pac. R.R. v. Sheehan , 439 U.S. 89, 9 3 (1978).

The plaintiffs and the Union Pacific maintain that the Criswell Board failed t o compl y with the requirements of the RLA because the BLE was not allowed t o participate in the formulation of the issue, was not allowed to designate a member of th e Board, and consequently was excluded from the executive session of the Board

. The UTU argues, however, that the Criswell Board did not viol ate the RLA because the BLE had entered a binding agreement to participate in the Criswell arbitration only as an interested third party and , alternatively, had waived any right to be a full participant
on the board by failing to raise its objections for over two years after the board wa s established. The UTU also argues that the BLE had no right under the RLA t o participate as a full member o f the Board. The plaintiffs and the Union Pacific counter that the BLE neither entered into a binding agreement to appear only as an interested third party nor waived its right to full participation on the Criswell Board.

A. Waiver

We first address the UTU's waiver argument. The UTU claims the BLE waived its objections by failing to raise them prior to the June 1990 Criswell Board hearing

. The partie s to an arbitration may waive procedural defects by failing to bring suc h issues to the arbitrator's atte ntion in time to cure the defects. This rule applies because "orderlyprocedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts." United States v. L. A. Tucker Truck Lines, Inc. ,10

344 U.S. 33, 37 (1952). Moreover, "[i]t is imperative to an efficient and fai r administ ration of justice that a litigant may not withhold his objections, await th e outc ome, and then complain that he was denied his rights if he does not approve th e resulting decision." Brotherhood of Ry., Airline, & S.S. Clerks, Freight Handlers , Express & Station Employees v. St. Louis S.W. Ry

. , 676 F.2d 132, 136 (5th Cir. 1982) (quoting Brotherhood of R. R. Trainmen v. Chicago, Milwaukee, St. Paul & Pac. R.R. , 380 F .2d 605, 608-09 (D.C. Cir. 1967); see also Schneider v. Southern Ry. , 822 F.2d 22 (6th Cir. 1987) ("It is well-established that parties to an arbitration may waiv e procedural de fects by failing to bring such issues to the arbitrator's attention in time to allow the arbitrator an opportunity to cure the defects.").

The BLE's t

iming in raising its objections does not constitute waiver. The BLE presented its objections prior to the Criswell Board's exe cutive meeting and prior to any vote t aken by the Board. Moreover, the record indicates that no activities wer e undertak en by either the Board or the BLE regarding the dispute prior to the Jun e meeting. Alt hough the Board was not aware of the BLE's objections until two year s after it had been established, this delay is not unreasonable, given that the Board was essentially inactive between the time it was established and the time it met in June 1990. By the time it did meet, the prior synergism between the BLE and the Union Pacific had dissipated, at least from the BLE's perspective, and the BLE no lo nger trusted the Union Pacific to vote to uphold the validity of their existing agreements to create the ne w
re serve boards. When the BLE did present its objections, the arbitrator had ampl e opportuni ty to address them and to cure any default. We therefore conclude that th e BLE did not waive its right to object by waiting to do so until the Board met in Jun e 1990.
B. Agreement as to Third Party Status
Upon receiving notice of the UTU's and the Union Pacific's arbitration ag reement, the BLE expressed its desire to be made an interested third party if11

arbitration did in fact ensue. The Union Pacific acknowledged the BLE's request and concurred that the BLE had a third party interest in the dispute. The UTU did no t respond, evidently acquiescing to the BLE's request. The UTU and the BLE wer e opposed to each other's position with respect to the issue to be resolved.
The UTU now argues that b y requesting third party status, the BLE entered into a binding agreement to appear only as an interested third party, and thereby relinquished its right to claim full membership on the Criswell Board. We respectf ully disagree. The corresponden ce exchanged represents a preliminary understanding that the BLE had a vital interest at stake in the arbitration before the Criswell Board. The parties did not enter into any agreement concernin g BLE's role in the arbitration, and no consideration
was exc hanged. Absent any formal agreement to the contrary, the BLE retained th e right to exercise its right to claim full membership on the board.

We note that

had the arbitration proceeded in a timely manner, that is without a two-year delay be tween formation of the board and its convening, the BLE might well hav e proceeded without objecting to its interested third-party status, thereby waivin g its right to full participation on the board. However, because of the BLE's perception that the Union Pacific was now less than enthusiastic in its support of the BLE/Union Pacific agre ements at issue, the BLE asserted its claimed right. Absent any forma l binding agreement with the BLE to th e contrary, the other parties assumed the risk that in allowing two years to pass, the BLE would no longer be satisfied with its third party status at the time the Criswell Board convened.

C. Right to Full Board Participation

The UTU also argues substantively that the BLE had no right under the RLA to participate as a full member of the Criswell Board. The UTU contends that allowing both unions to designate their own PLB member contravenes the language of the RLA,12

invites the possibility of a tie vote by creating a four-member bo ard, and stacks the deck against labor organizations.
The p lain language of the RLA anticipates a three-member board, consisting of ? one person designated by the carrier and one person designated by the representative of the employees,” and one neutral member when the carrier and the unio n
re presentative are unable to resolve the dispute. 45 U.S.C. § 153 Second (secon d parag raph). The PLB’s decision, rendered by any two members of the board, is to be ? final and binding upon both parties to the dispute.” Id. Thus, on its face, the statute antici pates a three-member board which would be upset if a second union with a n interest in the dispute were allowed to designate a board member as well.

N e vertheless, we do not write on a clean slate but must consider our prior case law

. It is beyond dispute that an interested union has a right to participate in PL B proceedings. See Transportation-Communication Employees’ Union v. Union Pacific R.R. , 385 U.S. 157 (1966) (holding all interested parties must be notified of a n arbitration and afforded a right to participate in the arbitration). See also United Transp. Union v . Burlington N., Inc. , 470 F.2d 813 (8th Cir. 1972) [hereinafter BN1 ] (stating, in a dispu te involving the interpretation of a provision common to the CBAs of tw o unions, ? b oth unions were entitled to participate in any proceedings to determine th e meaning of a paragraph common to both [CBAs]”). Certainly, the BLE was afforded the right to participate in the proceedings before the Criswell Board. Key to this appeal, ho wever, is the question of whether that right to participate includes the right t o designate a voting board member, a right which the BLE was not afforded. Fo r guidance on this issue, we consider General Comm. of Adjustment v. Burlington N. , Inc. , 563 F.2d 1279 (8th Cir. 1977) [hereinafter BN2 ].

In BN2 , the dispute arose over the interpretation of a merger protectio n agreement between the Burlington Northern (BN) and the BLE. The e ngineers involved in the dispute were members of both the BLE and the UTU, and they askedThe term ? special board of adjustment” can at times be confusing. A board 4 created pursuant to the second paragraph of 45 U.S.C. § 153, Second, is specifically called a ? special board of adjustment” in that paragraph. In practice, however, the term is usually used to refer to the private ? system, group, or regional boards of adjustment” authorized by the first paragraph of 45 U.S.C. § 153, Second. As we noted earlier, the statutory ? special boards of adjustment” authorized by the second paragraph of the cited section are commonly called ? public law boards” to differentiate them from the private boards authorized by the first paragraph. See Employees Protective Ass’n v. Norfolk and Western Ry. , 511 F.2d 1040, 1044 (4th Cir. 1975). 13 the UTU to process th eir grievance against the railroad. The UTU requested a special board of adjustment pursuant to the second paragraph of 45 U.S.C. § 153, Second (a Public Law Board), and the BN objected, arguing that such a board had no jurisdiction 4 over the dispute. Id. at 1281. Ne vertheless, the BN agreed to submit the jurisdictional issue to t he special board of adjustment, which agreed with the BN that it lacke d juri sdiction to interpret the merger agreement. Id. Upon our consideration of th e dispute, we emphasized:
[I]n dis putes arising out of collective bargaining agreements, other tha n mergerpr otective agreements, an employee not only has a right to b e repres ented by the union of his choice but also has a right to have hi s un ionrepresentative sit on the arbitration panel deciding the case. Th e employee has the right even though the contract being construed wa s negotiated by a rival union and even though precedents established by the rival union and the railroad are to be followed.

. . . . An aggrieved employee cannot help but feel that his interests in a n arbitration proceeding will be better served if his union representative sits in on the closed door discussions that follow a presentation than if a repre sentative of a union to which he does not belong or to which he has not entrusted the adjustment of his grievance has this privilege.14

BN2 , 563 F.2d at 1284.

This precedent compels us to conclude that the BLE was entitled to participate
a s a member of the Criswell Board. Our opinions in BN1 and BN2 indicate that both unions have a right to representation on the board where the dispute involves a contract provisio n common to both unions’ CBAs with the same carrier, even if the contrac t dispute initially arose between the rail carrier and but one of the unions over the contract provi sion. Our own reading of the statute leaves us somewhat discomforted by thi s
res olution, because the plain language of the second paragraph of 45 U.S.C. § 15 3 Second seems to envision only a three-person PLB. Nevertheless, because our panel is not at liberty to overrule another panel decision, we are compelled to follow th e reasoning of BN1 and BN2 , which reasoning indicates that the BLE was not obligated to accept its designation as a third party but had a right to full membership on th e Criswell Board.

The B N2 court said that ? [w]e see no practical problems arising from thi s opinion.” 563 F.2d at 1285. The UTU’s arguments that a f our-person board invites the possib ility of deadlock and that such a board may work to the disadvantage of labo r organizations highlight some practical problems that might well develop in the future. The answer may lie in our BN1 decision, where we indicated that the dispute in tha t case, like this one, involving as it did the right of both unions to sit on the arbitratio n board, would best be decided by the larger National Railroad Adjustment Board, where all the parties are clearly entitled to have board participants, rather than by a PLB. See 470 F.2d 815-16.
Because the district court did not decide the BLE’s jur isdictional challenge to the Criswell Board, i.e., that the dispute was a representat ional one between the two unions addressable only by the National Mediation Board, we decline to address the issue.15 III.

In conclusi on, we hold that pursuant to this circuit’s existing case law, the BLE hada right under the RLA to full participation on the Criswell Board, which it timely asserted and did not waive. Thus, the district court properly vacated the Criswel l Board's de cision, and we need not address the parties' arguments concerning th e Criswell Board's jurisdiction. Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.