In the

United States Court of Appeals

For the Seventh Circuit

No. 01-2150

United Transportation Union,

Plaintiff-Appellee,

v.

Gateway Western Railway Company,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 00 C 212--Michael J. Reagan, Judge.

Argued December 3, 2001--Decided March 21, 2002

 Before Posner, Evans, and Williams, Circuit

Judges.

 Posner, Circuit Judge. A union seeks to

enforce an arbitration award made by a

Public Law Board pursuant to the Railway

Labor Act. The Act establishes a system

of compulsory arbitration of grievances

("minor disputes"), Andrews v. Louisville

& Nashville R.R., 406 U.S. 320, 322

(1972), but gives the parties a choice of

arbitral methods. Employees Protective

Ass’n v. Norfolk & Western Ry., 511 F.2d

1040, 1044 (4th Cir. 1975). One option is

arbitration by three-member panels one

member of which is appointed by the

union, one by the employer, and the

third, the "neutral" member, by the

National Mediation Board, a permanent

agency (unlike the Public Law Boards)

that administers the arbitration and

mediation processes ordained by the Act.

45 U.S.C. sec. 153 Second; Brotherhood of

Locomotive Engineers v. Atchison, Topeka

& Santa Fe Ry., 768 F.2d 914, 918 (7th

Cir. 1985); Woodrum v. Southern Ry., 750

F.2d 876, 880 (11th Cir. 1985); Jones v.

St. Louis-San Francisco Ry., 728 F.2d

257, 259-60 (6th Cir. 1984). The neutral

is appointed only if the two partydesignated arbitrators can’t agree on the

resolution of the grievance, and is

appointed by the Board only if the other

two arbitrators can’t agree on a neutral.

The Board appoints the neutral from a
roster of arbitrators that it maintains,

and since the party members of the panel

are expected to vote in accordance with

their principals’ wishes (though they

don’t always do so), it is the neutral

who is the real "judge" and usually

decides the case, though the award must

be signed by one of the party members as

well, normally of course the one in whose

principal’s favor the neutral has

decided.

 The neutral in this case was a lawyer

named Fredenberger, whose distinguished

record included a stint as general

counsel of the National Mediation Board.

The hearing on the union’s grievances was

held on March 9, 1999. A month later

Fredenberger was charged in an

information with and pleaded guilty to

feloniously assisting in the preparation

of a fraudulent federal income tax

return. The Board learned of this and

issued an order to show cause by August

27 why Fredenberger should not be removed

from the roster of arbitrators. He asked

for and was granted an extension to

August 30 to respond. On that day he both

responded to the order to show cause and

signed (and within a day or two he mailed

to the parties to the arbitration) his

award, which generally favored the union.

The next day the Board struck him from

the roster, effective immediately. There

is no suggestion that the Board was at

fault in failing to remove him earlier.

 The union member of the Public Law Board

signed the award sometime after August

30, though we don’t known when. The

employer member refused to sign it, and

the employer makes two arguments against

enforcing it. The first is that it was

procured by fraud, namely Fredenberger’s

concealment of his conviction. The

Railway Labor Act empowers a district

court to set aside an arbitral award if

there was "fraud or corruption by a

member of the [panel] making the order."

45 U.S.C. sec. 153 First (p). That is of

course a ground under other arbitration

statutes as well. 9 U.S.C. sec. 10(a)(1);

Uniform Arbitration Act sec. 12(a)(1)

(model act adopted by about 34 states);

United Paperworkers Int’l Union v. Misco,

Inc., 484 U.S. 29, 38 (1987); DDI

Seamless Cylinder Int’l, Inc. v. General

Fire Extinguisher Corp., 14 F.3d 1163,

1166 (7th Cir. 1994); MSP Collaborative

Developers v. Fidelity & Deposit Co., 596
F.2d 247, 250 (7th Cir. 1979);

Mountaineer Gas Co. v. Oil, Chemical &

Atomic Workers Int’l Union, 76 F.3d 606,

608 (4th Cir. 1996). Despite differences

in wording, these statutes are generally

interpreted to mean the same thing. E.g.,

Brotherhood of Locomotive Engineers v.

Atchison, Topeka & Santa Fe Ry., supra,

768 F.2d at 921.

 In the usual case the fraud is against

the party seeking to set aside the award,

as where the arbitrator is bribed by the

opposing party or fails to disclose a

relationship with that party. American

Postal Workers Union v. United States

Postal Service, 52 F.3d 359, 362 (D.C.

Cir. 1995); Pacific & Arctic Ry. &

Navigation Co. v. United Transportation

Union, 952 F.2d 1144, 1147-48 (9th Cir.

1991); cf. Commonwealth Coatings Corp. v.

Continental Casualty Co., 393 U.S. 145,

147-48, 149 (1968) (plurality opinion).

There is no suggestion of that here.

Fredenberger’s criminal violation of

federal tax law was unrelated to the

grievances that he was asked to

arbitrate, and there is no suggestion

that his violation would have inclined

him in favor of (or, for that matter,

against) the union.

 His failure to disclose his criminal

conviction was, we may assume, material

in the sense that one or both parties

might well have decided that they did not

want to have a criminal resolve their

dispute. But it does not follow that it

should be a basis for setting aside his

award. So far as appears, the fraud was

completely harmless; for there is no

evidence or reason to think that

Fredenberger’s conviction (or events

leading up to it) had the slightest

effect on the award that he rendered. A

judge’s decisions are not voidable on the

basis of an undisclosed criminal

conviction, even in a capital case, Bracy

v. Gramley, 520 U.S. 899, 901, 909

(1997), if the conviction had no impact

on the decision, and we do not see why a

stricter rule should apply in

arbitration, cf. Remmey v. PaineWebber,

Inc., 32 F.3d 143, 147-48 (4th Cir.

1994), especially since the standard due

process entitlement to an impartial

tribunal is relaxed when the tribunal is

an arbitral tribunal rather than a court.

Van Boxel v. Journal Co. Employees’

Pension Trust, 836 F.2d 1048, 1050 (7th
Cir. 1987); Merit Ins. Co. v. Leatherby

Ins. Co., 714 F.2d 673, 679 (7th Cir.

1983); Schmitz v. Zilveti, 20 F.3d 1043,

1046-47 (9th Cir. 1994); Morelite Const.

Corp. v. New York City District Council

Carpenters Beneficial Funds, 748 F.2d 79,

83 (2d Cir. 1984). A contrary rule would

encourage losing parties to an

arbitration to conduct a background check

on the arbitrators, looking for dirt--a

particularly questionable undertaking

because arbitrators, unlike judges, are

not subjected to background checks when

appointed. It is another example of the

lesser formality, and concomitant

relaxation of due process norms, of

arbitration in comparison to

adjudication.

 We do not wish to generalize

prematurely, however, by holding that

there can be no case in which a fraud

that does not induce bias on the part of

the arbitrator warrants the setting aside

of the award. Suppose that a baboon

cunningly dressed in human clothes fooled

the National Mediation Board into

appointing him the neutral arbitrator of

the union’s grievances. Whichever party

had the stronger case would be

disadvantaged by the fact that the

grievance had been subjected to an

essentially random decision procedure,

even though the procedure was not biased

(random is the opposite of biased). That

party could complain that he had been

defrauded. So far as appears,

Fredenberger was not only an experienced

arbitrator but did as careful a job of

arbitrating the union’s grievances as he

would have done had he never violated the

income tax laws.

 Second, the employer argues that because

Fredenberger was removed from the roster

of Railway Labor Act arbitrators before

the second member of the panel signed the

award, there was no award. The Federal

Arbitration Act is explicit that an award

is unenforceable unless final, 9 U.S.C.

sec. 10(a)(4); IDS Life Ins. Co. v. Royal

Alliance Associates, Inc., 266 F.3d 645,

650 (7th Cir. 2001); Flender Corp. v.

Techna-Quip Co., 953 F.2d 273, 279 (7th

Cir. 1992); Remmey v. PaineWebber, Inc.,

supra, 32 F.3d at 150, and an award that

was never made (executed, perhaps, but

not issued) is the best example of a

nonfinal award that occurs to us. See

United Steelworkers of America v. Ideal
Cement Co, 762 F.2d 837, 842 (10th Cir.

1985). We cannot think of any reason why

a different rule should apply to

arbitration under the Railway Labor Act,

though we can find no cases on the point.

 In the case of a judicial panel,

moreover, the departure whether by death,

resignation, retirement, or recusal of a

judge before the panel’s decision is

formally issued operates to disqualify

the judge. E.g., Kulumani v. Blue Cross

Blue Shield Ass’n, 224 F.3d 681, 683 n.

** (7th Cir. 2000); Whitehall Tenants

Corp. v. Whitehall Realty Co., 136 F.3d

230, 232-33 (2d Cir. 1998); Dubose v.

Pierce, 857 F.2d 889, 891 n. * (2d Cir.

1988) (per curiam). The quorum for a

decision by a three-judge federal court

of appeals panel is two, 26 U.S.C. sec.

46(d), so that if two of the three judges

die or resign before the panel’s decision

is issued, a judge must be added to the

panel before the decision can be issued.

See, e.g., 11th Cir. R. 34-2. This might

seem fatal to the award in this case,

where the quorum was two and Fredenberger

departed the scene before the second

arbitrator signed the award and the third

arbitrator never signed it.

 But this argument fails, though not

because the employer has failed to show

that Fredenberger actually left the panel

before the union member signed. For while

the order by the National Mediation Board

of August 30 removing him from the roster

of arbitrators did not say it was

removing him from any existing panels he

was on, it is likely that he did quit the

Public Law Board then. His request for an

extension of time to respond to the order

to show cause implies that he wanted time

to complete his work on the award before

he was removed from the roster.

 Nor does the employer’s argument fail

because, as one might expect, the norms

applicable to arbitration differ from

those governing judicial panels and thus

preclude enforcement of an award if an

arbitrator leaves the panel after he has

signed the award but before it has been

signed by a second member of the panel.

The norms are the same, though the case

law establishing this proposition is

sparse, Marine Products Export Corp. v.

M.T. Globe Galaxy, 977 F.2d 66, 68 (2d

Cir. 1992); Czarnikow-Rionda Co. v.

Buenamar Compania Naviera S.A., No. 86

Civ. 24, 1986 WL 10485, at *7 (S.D.N.Y.
Sept. 17, 1986); Cia De Navegacion Omsil,

S.A. v. Hugo Neu Corp., 359 F. Supp. 898,

899 (S.D.N.Y. 1973); cf. Amalgamated

Ass’n of Street Electric Ry. & Motor

Coach Employees of America v. Connecticut

Co., 112 A.2d 501, 505-06 (Conn. 1955),

and we are hesitant to declare the issue

definitively resolved. As applied to

judicial panels the rule reflects the

fact that before the panel’s decision is

issued something may happen that causes a

change in mind of one or more of the

judges. Ayrshire Collieries Corp. v.

United States, 331 U.S. 132, 139 (1947);

cf. Pastene Wine & Spirits Co. v.

Alcoholic Beverages Control Comm’n, 449

N.E.2d 1235, 1236 (Mass. App. 1983). The

parties are entitled to have a quorum of

the judges consider the new development.

 Arbitration by panels composed of party

representatives and a neutral is

different. Not only because of the lesser

formality, of which a pertinent

illustration is that arbitrators usually

resign as soon as they issue their award

rather than waiting till any judicial

proceedings to vacate or confirm the

award are completed, with the result that

sometimes the arbitral panel has to be

reconstituted if there is a remand by the

court. Ethyl Corp. v. United Steelworkers

of America, 768 F.2d 180, 187 (7th Cir.

1985); Pinkerton’s NY Racing Security

Service, Inc. v. Local 32E Service

Employees Int’l Union, 805 F.2d 470, 474

(2d Cir. 1986); see also WashingtonBaltimore Newspaper Guild Local 35 v.

Washington Post Co., 442 F.2d 1234, 1238-

39 (D.C. Cir. 1971). But also and more

important because the party

representatives are not neutrals. If the

neutral is the only real decision maker--

if signature by the party representative

of the neutral arbitrator’s award in

favor of that party is pro forma, a

purely technical requirement--then

failure to comply with the requirement is

harmless and does not justify the setting

aside of the award. And in that case had

Fredenberger died before the union

arbitrator got around to signing the

award, there would be no reason to void

the award, even though if a judge on a

panel containing only one other judge

(say because the third judge had recused

himself) died before the decision of the

panel was issued, the decision would be

voidable.
 But we are overstating the difference

between arbitration and adjudication.

Though the party-designated arbitrators

are not neutral, each being biased in

favor of the party that designated him,

they are not rubber stamps. Hence Jones

v. St. Louis-San Francisco Ry., supra,

728 F.2d at 262, holds "that in order to

have a valid award, a majority of the

[Public Law] Board must hear the parties

and participate in the decisionmaking

process before rendering an award." And

even when they are rubber stamps, they

may influence the neutral’s decision in

post-hearing deliberations here

foreshortened by Fredenberger’s

resignation. "After the attorneys present

their cases and the official proceedings

are terminated, the partial [i.e., partydesignated] arbitrators have another

opportunity to attempt to persuade the

neutral to rule in their client’s favor."

Eugene K. Connors & Brooke Bashore-Smith,

"Employment Dispute Resolution in the

United States: An Overview," 17 Can.-U.S.

L.J. 319, 323 (1991). See also Associated

General Contractors of America,

Evansville Chapter, Inc. v. NLRB, 465

F.2d 327, 333 (7th Cir. 1972) ("it would

take an extreme naivete about tripartite

arbitration to believe that the partisan

members will never attempt to reach a

compromise solution after the dispute has

been submitted to the panel"); Delta Mine

Holding Co. v. AFC Coal Properties, Inc.,

280 F.3d 815, 819 (8th Cir. 2001)

(describing post-hearing deliberations of

tripartite arbitration panel in which

partisan arbitrators presented competing

draft orders for consideration by the

neutral); Note, "The Use of Tripartite

Boards in Labor, Commercial, and

International Arbitration," 68 Harv. L.

Rev. 293, 304 (1954).

 But this discussion leaves the issue of

remedy unresolved. In the case of a

judicial panel, a decision made without a

quorum is void. Ayrshire Collieries Corp.

v. United States, supra, 331 U.S. at 139.

That is the general rule for public

bodies. Appeal of Net Realty Holding

Trust, 497 A.2d 865, 867 (N.H. 1985);

Rock v. Thompson, 426 N.E.2d 891, 897

(Ill. 1981); Williams v. Nieman Marcus,

652 S.W.2d 893, 894 (Mo. App. 1983);

Pastene Wine & Spirits Co. v. Alcoholic

Beverages Control Comm’n, supra, 449

N.E.2d at 1236. But we do not think the

same result should follow when an
arbitration panel lacking a quorum

renders a decision. See Teamsters Local

Union No. 61 v. United Parcel Service,

Inc., 272 F.3d 600, 605 (D.C. Cir. 2001).

Not only is arbitration less formal than

adjudication, but the absence of a-partydesignated arbitrator does not have the

same significance as the absence of a

third judge. Realistically, in most cases

the absence of a party-designated

arbitrator makes no difference at all in

the outcome. Given these differences

between arbitration and adjudication, it

behooved the employer in this case to

present some evidence, or at least

argument, that the inability of its

designated arbitrator to influence the

outcome by appeal to the neutral

arbitrator (he having decamped after

signing his award) had an actual or at

least a probable effect on the outcome of

the arbitration. The employer presented

neither evidence nor argument. On the

contrary, such evidence as there is that

bears on the issue favors the union. The

neutral arbitrator apparently drafted his

award without prior consultation with the

party-designated arbitrators, and no

further deliberations were contemplated,

the signature of the union-designated

arbitrator and the nonsignature of

theemployer-designated arbitrator being

pro forma. So far as appears, then, the

error in failing to appoint a neutral

arbitrator after Fredenberger resigned

was completely harmless, and that being

so the decision enforcing the award must

we think be, and it is,

Affirmed.