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February 10, 1992


The opinion of the court was delivered by: JOHN H. PRATT

 Before this Court are defendant's motions to vacate an arbitral award, for a preliminary injunction, and for leave to file an amended counterclaim. We heard the parties in open court on January 29, 1992 and have fully considered the motions, the oppositions to the motions, and the replies. We decline to grant defendant's motions to vacate the arbitral award and for a preliminary injunction. We do grant the defendant's motion for leave to file an amended counterclaim.

 I. Background

 This case deals with the arcane subject of statutes governing railroad labor relations and has a somewhat complex factual history. Some introductory background therefore may be helpful. We have previously set forth a more detailed description of events in our Findings of Fact and Conclusions of Law filed October 25, 1991 (hereinafter "Findings of Fact"). This fall, plaintiff unions came to the Court seeking an injunction to prevent defendant Burlington Northern ("BN") from imposing the recommendations of Presidential Emergency Board ("PEB") 219 on several general committees of the United Transportation Union ("UTU"). In short, PEB 219 had been created in May 1990 to resolve labor disputes between several carriers and unions concerning wage-rules and health and welfare movements. On January 15, 1991, PEB 219 issued a 94-page report containing recommendations concerning wage increases and lump sum payments, health and welfare plan changes and cost-sharing, and crew consist modifications including arbitration. See Findings of Fact at 5. The parties failed to negotiate a resolution of the outstanding disputes, and on April 17, 1991, several unions, including UTU, began a strike against the carriers. Congress, within 24 hours of the strike, passed Public Law 102-29 to halt the strike. Settlement of Railroad Labor-Management Disputes of 1991, Pub. L. No. 102-29, 105 Stat. 169. Public Law 102-29 made the recommendations of PEB 219 binding on the parties, subject only to the limited review by a Special Board appointed by the President. Findings of Fact at 5-6.

 The heart of the dispute between BN and UTU was that the UTU claimed that the recommendations of PEB 219 only applied to some of its represented employees, whereas BN argued that they applied to all UTU-represented employees. UTU is made up of 11 general committees that are based on their affiliation with a predecessor railroad or a particular geographic territory on BN. The UTU contends that several of these committees -- the Northern Lines committees -- did not participate in the disputes that were before PEB 219 and consequently the mandated settlement of Pub. L. 102-29 is not applicable to them. BN, on the other hand, claims that there is only one representative for all of the UTU members and has refused to deal with the four Northern Lines committees in a piecemeal fashion.

 In our earlier response, this Court held that we did not have the subject matter jurisdiction to decide this issue. See Findings of Fact at 14. We based this holding on three alternative grounds: a) that Congress in providing that the Special Board should clarify or interpret the recommendations of PEB 219, deprived the courts of jurisdiction; b) that the dispute is a minor dispute over the meaning and reach of Pub. L. 102-29 and is subject to the compulsory arbitration procedures provided by the Railway Labor Act, 45 U.S.C. § 153; or c) that the dispute is a representation dispute that is subject to the exclusive jurisdiction of the National Mediation Board ("NMB"). See Findings of Fact at 12-14.

 The parties have now returned to this Court to argue a somewhat related issue. After this Court issued its opinion in October, BN began taking the steps proscribed by PEB 219 to negotiate a crew consist agreement with UTU. *fn1" UTU refused to negotiate with BN, and BN then invoked the procedures to arbitrate the terms of its crew consist procedures as suggested by PEB 219. On November 21, 1991, the NMB appointed three arbitrators to Arbitration Panel No. 6 to resolve the issue. *fn2" UTU argued that the panel was without jurisdiction over the issue because the Northern Lines committees were never a part of the PEB 219 process and thus were not involved in the Pub. L. 102-29 mandated solution to the labor disputes. BN, on the other hand, argued that the arbitral panel only had jurisdiction to determine the meaning of terms of the crew consist agreement and that it could not determine the jurisdictional issue. See BN's Brief in Support of Motion at 6-7.

 On January 11, 1992, Arbitration Panel No. 6 decided it did not have jurisdiction under the provisions of Pub. L. 102-29 and PEB 219 to consider the merits of the crew consist question presented. The panel found that while in 1988 both parties served Section 6 notices seeking wage and rules changes for collective bargaining agreements applicable to the Southern Lines, neither party filed Section 6 notices relating to wage and rules changes on the Northern Lines. Burlington Northern Railroad Co. v. United Transportation Union (Jan. 11, 1991) (Zumas, Marx, and Zusman Arbs.) at 2-3, available in BN's Brief in Support of Motion App. A (hereinafter "Arbitration Panel Decision"). The panel noted that James Dagnon, BN's Senior Vice President for Human Resources, wrote a note which indicated that the Northern Lines Committees were not included in national handling for these issues because they did not file Section 6 notices. Further, the panel quoted the section of the PEB report which indicated that crew consist was traditionally negotiated locally and was not appropriately before the Presidential Emergency Board. *fn3" See Arbitration Panel Decision at 4. The arbitral panel concluded:

 It has not been shown that the Northern Lines agreements, as to crew consist matters, were part of the national handling so as to constitute the subject matter jurisdiction of PEB 219 during all relevant times.

 It was essential, as a condition precedent, for appropriate Section 6 notices to have been served and the requisite powers of attorney to have been executed in order for this matter to come under the jurisdiction of PEB 219. The letter by BN Vice President Dagnon . . . conclusively demonstrates that BN and the Northern Lines General Committees of Adjustment intended to avoid national handling.

 BN argues that this Panel has neither the authority to rule on representation issues within the NMB's exclusive jurisdiction nor the power to relitigate the Federal District Court's ruling that the issue raised by UTU was a representation issue. BN's argument is misplaced; the Panel is neither usurping NMB's jurisdiction nor is it relitigating the District Court's ruling. The Panel merely found that the absence of appropriate Section 6 notices deprived PEB 219 of any national handling jurisdiction. The consequence of this is to make unavailable the arbitration process enacted into law by Public Law No. 102-29. *fn4"

 Arbitration Panel Decision at 10-11.

 BN now moves the Court to vacate this decision of the arbitral panel. BN argues that the award should be vacated because: (1) the arbitration panel failed to follow this Court's opinion of October 25, 1991; (2) the panel acted outside its jurisdiction by deciding a representation dispute that is within the exclusive jurisdiction of the NMB; (3) the arbitral award is contrary to the clearly enunciated public policy that representation disputes be decided only by the NMB; and (4) the award does not draw its essence from the PEB 219 crew consist procedures. In response, UTU argues that this Court may not have jurisdiction to vacate the panel ...

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