The arbitrator's award settling a dispute with respect to the interpretation or application of a labor agreement must draw its essence from the contract and cannot simply reflect the arbitrator's own notions of industrial justice. But as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.
Id. at 38. While the arbitration panel at issue here differs from the typical arbitration arising out of a mutually negotiated collective bargaining agreement -- it was created by a statutorily-imposed agreement, for one, and the question of whether the parties consented to arbitration is central to the issue at bar -- the principles of review are similar. Unless the panel exceeded the scope of its authority, we will view with deference the conclusions it reached.
However limited our jurisdiction is, we have power to determine if the arbitral panel was precluded from its action by our decision of October 25, 1991. The union argues that Pub. L. 102-29 does not give this Court jurisdiction to review the actions of the Arbitration Panel. See Memorandum of Points and Authorities of Plaintiff UTU in Opposition to Defendants Emergency Motion to Vacate Arbitration Award and For Injunction Against UTU at 2-7. But courts have the right of plenary review when asked to determine the preclusive effects of a federal judgment on relitigation of the same issues in an arbitral forum. If we have finally decided something as a matter of law, an arbitral panel may not completely disregard that conclusion. See, e.g., Telephone Workers Union v. New Jersey Bell Telephone Co., 584 F.2d 31, 33 (3d Cir. 1978) ("When a federal court is presented with the contention that a prior federal judgment determined issues now sought to be relitigated in an arbitral forum it must first determine the effect of the judgment.");
John Morrell & Co. v. Local Union 304A of United Food & Commercial Workers, 913 F.2d 544 (8th Cir. 1990), cert. denied, 114 L. Ed. 2d 78, 111 S. Ct. 1683 (1991) (res judicata precluded arbitrator from deciding whether union violated no-strike provision as jury had already decided the issue). Therefore, we now turn to whether the panel was precluded by our decision.
III. Issue Preclusion
We hold that the arbitral panel's action was not precluded by our decision of October 25, 1991. In that decision, we found that the issue presented involved a representation dispute over which we had no jurisdiction. Rather, exclusive jurisdiction rested with the NMB. Arbitration Panel No. 6 did not violate our finding of lack of jurisdiction, in also finding, but for different reasons, that it did not have jurisdiction of these issues.
Issue preclusion bars relitigation if the same issue was involved in both actions. The principle is applicable when the issue was actually litigated in the first action after a full and fair opportunity for litigation; the issue was actually decided in the first action on the merits; the disposition was sufficiently final; and resolution of the issues was necessary in the first action. See National Post Office Mail Handlers v. American Postal Workers Union, 285 App. D.C. 120, 907 F.2d 190, 192 (D.C. Cir. 1990); 18 Charles Wright, Arthur Miller, & Edward Cooper, Federal Practice and Procedure § 4416 (1981). It is clear that the same issues were involved in both actions before us: the immediate question of whether the Northern Lines and BN were involved in the disputes that became part of the PEB 219 recommendations and were thus bound by Pub. L. 102-29, and the larger question of whether it matters that some of the general committees were not involved in the disputes or whether Pub. L. 102-29 binds all UTU committees.
This Court held that it was a representation dispute, within the exclusive jurisdiction of the NMB and outside our subject matter jurisdiction. Although the question was litigated and the parties were given a "full and fair opportunity" to so litigate, we never decided the merits of whether all of the UTU committees and BN were before PEB 219. Also, in finding that this was a representation dispute, we did not have to reach, and did not reach, the question of whether BN and the Northern Lines committees were before PEB 219 for crew consist issues.
Therefore, the issue is not precluded by our decision.
IV. Other Arguments
BN further argues that the arbitral panel acted outside its jurisdiction, and in contravention of public policy, by deciding a representation dispute that is within the exclusive jurisdiction of the NMB. It also argues that the panel's decision does not "draw its essence" from the crew consist recommendations of the PEB 219 panel.
We fail to understand BN's reasoning that the panel, in deciding that it did not have jurisdiction, acted outside its jurisdiction. Nor do we see how in deciding it could not hear the case, it decided a representation dispute. Indeed, exactly the converse is true: if the arbitral panel had reached a decision on the merits, it would have essentially reached a conclusion that all of the UTU members were before PEB 219 even though Section 6 notices were not served on or by all of the general committees. The panel therefore would have decided a representation dispute. But in holding that it was without jurisdiction, the panel avoided interfering with the exclusive jurisdiction of the NMB.
We also decline to vacate the arbitral awards on public policy grounds. In order for a court to reverse an arbitration decision for this reason, the policy "must be well defined and dominant," W.R. Grace & Co. v. Local Union 759, International Union of the United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 766, 76 L. Ed. 2d 298 , 103 S. Ct. 2177 (1983); American Postal Workers v. United States Postal Service, 252 App. D.C. 169, 789 F.2d 1 (D.C. Cir. 1986). This basis for reversing an arbitration is an "extremely narrow" exception to the general deference accorded arbitration awards. 789 F.2d at 8. Although there is a public policy, enunciated in statute and law, that representation disputes are within the exclusive jurisdiction of the NMB, as noted above, the actions of the arbitral panel in this case did not undermine that jurisdiction. The argument that the Arbitration Panel exceeded its jurisdiction by declining to hear these parties, somehow interfering with the exclusive jurisdiction of the NMB, overstates the case.
Similarly, we decline to vacate the arbitral award based on the theory that it does not draw its essence from the collective bargaining agreement. Arbitrators are not free to "dispense [their] own brand of industrial justice," see United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 4 L. Ed. 2d 1424 , 80 S. Ct. 1358 (1960), yet they are also not free to construe agreements for groups which are not party to those agreements. Essentially, Arbitration Panel No. 6 found that BN and the UTU were not parties to the contract imposed by Pub. L. 102-29 on crew consist issues. Although it is possible to conceive of a theory that would rely on the Arbitral Panel's having decided the representation dispute, we do not vacate the panel's decision on that theoretical ground. Indeed, where two interpretations of arbitrators' decisions are possible, one within their clear discretion, and one that could be predicated on another theory, the Supreme Court has indicated that the proper approach is to credit the arbitrators' exercise of discretion.
See United Steelworkers, 363 U.S. at 598 ("We see no reason to assume that this arbitrator has abused the trust the parties confided in him and has not stayed within the areas marked out for his consideration").
V. Injunctive Relief
BN seeks injunctive relief to prevent UTU from raising the jurisdictional issues before other arbitral panels.
We decline to grant such injunctive relief. Equitable relief requires that the plaintiff make a showing of substantial likelihood of success on the merits; that plaintiff will suffer irreparable injury; that the balance of equities favors the grant of relief; and that public interest either favors or does not weigh against granting the requested relief. See Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 App. D.C. 220, 559 F.2d 841 (D.C. Cir. 1977); Virginia Petroleum Jobbers Association v. Federal Power Commission, 104 App. D.C. 106, 259 F.2d 921 (D.C. Cir. 1958); Perry v. Perry, 88 App. D.C. 337, 190 F.2d 601 (D.C. Cir. 1951). As we have found that the arbitral panel was within its power to determine its own jurisdiction, there is no rationale to prevent UTU from continuing to argue this point with other panels. It is clear that BN can not demonstrate a substantial likelihood of success on the merits, and hence an injunction will not lie. Further, BN claims that the result of not enjoining UTU from future action will be that BN will have different crew consist arrangements on different parts of its line, demoralizing employees. See BN's Brief in Support of Motion at 21-22. We point out that as PEB 219 noted, crew consist is traditionally negotiated locally; hence, traditionally, different arrangements applied.
This issue should be finally decided by the National Mediation Board. It is a travesty of labor law that with all these boards, panels, and statutorily-created processes for the resolution of labor disputes, BN and UTU have been unable to receive a final determination on whether BN needs to negotiate with each and every general committee or whether the carrier can negotiate with UTU as a single entity. As we noted in our October 25, 1991 Opinion, we do not have the jurisdiction to decide what is essentially a representation dispute, and for that matter, neither does Arbitration Panel No. 6, a fact that it recognized. However, this representation dispute should be resolved, and it should be resolved promptly. The parties should submit this post haste to the NMB, and the NMB should promptly act upon the request.
For the reasons given above, we deny the defendant's motions for injunctive relief and to vacate the award of the arbitral panel. We grant defendant's motion to amend the counterclaim. An Order consistent with the foregoing is entered this day.
John H. Pratt
United States District Judge
Date: 10 Feb 92
ORDER - February 10, 1992, Filed
In accordance with the Memorandum Opinion issued this day, it is, this 10th day of February 1992, hereby
ORDERED that defendant's motion to amend its counterclaim is granted; and it is
ORDERED that defendant's motion to vacate the arbitral award is denied; and it is
FURTHER ORDERED that defendant's motion for injunctive relief is denied.
JOHN H. PRATT
United States District Judge