Appeal from the United States District Court for the Southern District of Illinois Alton Division-No. 82 C 5397 William L. Beatty, Judge
Before ESCHBACH and POSNER, Circuit Judges, and GIBSON, Senior Circuit Judge.*fn*
GIBSON, Senior Circuit Judge. Plaintiffs, a group of employees of defendant Norfolk and Western Railroad Co. (N & W) at the St. Louis, Missouri and Decatur, Illinois terminals, appeal the district court's*fn1 grant of summary judgment to the defendant. Plaintiffs filed their complaint seeking to vacate an arbitrator's award of March 26, 1982, and to enforce the arbitrator's award of December 29, 1981. Because we conclude that the plaintiffs are without standing to bring this complaint, we affirm the district court.
This action arises out of the Railroad's acquisition of the Illinois Terminal Railroad Company (Illinois Terminal). In approving the merger, the Interstate Commerce Commission (Commission) required N & W to negotiate with the labor union representing its employees, the United Transportation Union (Union), to reach an implementing agreement governing the use and assignment of employees affected by the merger. Such an agreement is mandated by section 5(2)(f) of the Interstate Commerce Act, now codified at 49 U.S.C. § 11347 (1984) and the Commission's decision in New York Dock Railway, 360 I.C.C. 60 (1979). Because N & W and the Union failed to fashion an agreement through negotiation, N & W invoked the arbitration mechanism under Article I, section 4 of the New York Dock Railway conditions.
N & W and the Union selected Arbitrator Leverett Edwards, who issued his initial decision on December 29, 1981. The arbitrator ruled on two of the three issues on which the parties had been unable to agree: the method of compiling seniority lists, and N & W's proposal that all employees be brought under the provisions of its Wabash Schedule Agreements. On the seniority issue, Edwards approved N & W's proposal to "dovetail" seniority lists; however, he rejected N & W and the UTU had not exhausted their efforts to negotiate a complete implementing agreement:
The Arbitrator is of the opinion, from the record, that negotiations for a new and proper implementing agreement have not been carried out to the extent required for success. The Arbitrator is of the further opinion that such negotiations, if resumed, may result in a full and complete resolution by agreement of all issues, both major and minor, necessary to secure a complete implementing agreement, satisfactory and fair to all.
Decision and Award of December 29, 1981 at 6. Edwards sent the parties back to the bargaining table in the belief that "additional effort by the parties will result in final and complete disposition of all issues." Id. at 7. In doing so, however, he expressly reserved arbitral jurisdiction of the matter.
N & W and the UTU did resume negotiations, and came to terms on a complete implementing agreement. The proposed agreement covered all of the necessary, issues, including the question of seniority lists. Because of bargaining compromises made in order to reach agreement on the entire dispute, the seniority provision ultimately agreed to by N & W and the UTU differed from that initially approved by the arbitrator. Instead of the dovetailing of seniority lists that the arbitrator approved in his December 29, 1981 award, the proposed agreement provided for an equitable distribution of job assignments that resembled the original proposal of the UTU. The proposed implementing agreement was signed by two UTU General Chairmen on February 22, 1982, and was subsequently approved by two of the four affected Local Yard Chairmen. Because the UTU Constitution required the approval of all Local Chairmen, however, the General Chairman was unable to sign the formal agreement.
Representatives of N & W and the UTU then presented Arbitrator Edwards with the proposed agreement. After reviewing the negotiations and the quality of representation of both parties, Edwards expressed his satisfaction with the fairness of the agreement. In his Supplemental Award No. 1 issued March 16, 1982, Arbitrator Edwards approved the proposed implementing agreement as his final binding award.
Plaintiffs brought this suit, asking the court to vacate the arbitrator's award of March 16, 1982 as exceeding his jurisdiction, and to confirm the award of December 19, 1981. The district court granted summary judgment to N & W. The court concluded that Arbitrator Edwards did not exceed his authority in issuing the Supplemental Award because the December 29 award was neither final nor intended by him to be final. Plaintiffs now appeal to this court the award of summary judgment to N & W.
At the outset, we perceive a serious question as to plaintiffs' standing to bring this action. Because the standing to bring this action. Because the standing issue was related to plaintiffs' right to invoke the court's jurisdiction, this court raised the issue sua sponte at oral argument. We asked the parties to submit supplemental briefs, which they have done.
In our opinion, plaintiffs do not have standing in this matter. Plaintiffs have cited no cases to us that allow persons not parties to the original proceeding to appeal the outcome of that proceeding. In analogous cases, courts have held that individual employees have no standing to challenge an arbitration proceeding to which the Union and the employer were the sole parties. See e.g., Vosch v. Werner Continental, Inc., 734 F.2d 149, 154 (3d Cir. 1984), cert. denied, 469 U.S. 1108, 105 S. Ct. 784, 83 L. Ed. 2d 779 (1985) (employees may appeal adverse arbitral decision under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1976), only if they can show that the union breached its duty of fair representation to them); Andrus v. Convoy Co., 480 F.2d 604, 606 (9th Cir.), cert. denied, 414 U.S. 989, 38 L. Ed. 2d 228, 94 S. Ct. 286 (1973) (fairly represented employee cannot attack final arbitration decision made in the context of collective bargaining); Harris v. Chemical Leaman Tank Lines, Inc., 437 F.2d 167, 171 (5th Cir. 1971) ("Courts have not allowed an individual attack on a final [arbitration] award . . . except on the grounds of fraud, deceit or breach of duty of fair representation," or inadequate grievance procedure); Acuff v. Papermakers, AFL-CIO, 404 F.2d 169, 171 n.2 (5th Cir. 1968), cert. denied, 394 U.S. 987, 22 L. Ed. 2d 762, 89 S. Ct. 1466 (1969) (employee did not have standing to challenge arbitration award under the Arbitration Act, 9 U.S.C. § 10, when the union and the employer were sole parties to the arbitration); United States Postal Service v. American Postal Workers Union, 564 F. Supp. 545, 547-51 (S.D.N.Y. 1983) (same); Miller Brewing Co. v. Brewery Workers Local Union No. 9, Directly Affiliated Local Union, AFL-CIO, 562 F. Supp. 1368, 1371 (E.D. Wis. 1983), rev'd in part on other grounds, 739 F.2d 1159 (7th Cir. 1984), cert. denied, 469 U.S. 1160, 105 S. Ct. 912, 83 L. Ed. 2d 926 (1985) (general rule is that an employee may not move to vacate arbitration award unless the union has breached its duty of fair representation). Cf. F.W. Woolworth Co. v. Miscellaneous Warehousemen's Union, Local No. 781, 629 F.2d 1204, 1208-13 (7th Cir. 1980), cert. denied, 451 U.S. 937, 68 L. Ed. 2d 324, 101 S. Ct. 2016 (1981) (court notes that ...