We therefore reject IC's and BLE's argument that the PLB exceeded its jurisdiction by deciding a "representation" dispute. To the extent that IC and BLE have moved for summary judgment on this issue, we deny their motions.
II. Validity of PLB 4685's Award
Having resolved that the PLB acted within its jurisdiction in making its award, we must next determine whether the decision is enforceable under the Railway Labor Act. The Act empowers district courts to enforce Adjustment Board decisions. 45 U.S.C. § 153 First (p). That section provides that such orders may only be set aside on the following grounds: (1) failure of the Adjustment Board to comply with the requirements of the Railway Labor Act; (2) failure of the Adjustment Board to confine itself to matters within the scope of its jurisdiction; and (3) fraud or corruption. 45 U.S.C. § 153 First (p). Courts construing this provision have repeatedly emphasized the strict limitations on the review powers of the district courts, stating that the scope of review in proceedings to enforce a PLB award is among the narrowest in the law. Brotherhood of R.R. Signalmen v. Louisville and Nashville R.R. Co., 688 F.2d 535, 542 (7th Cir. 1982). Courts have interpreted the identical statutory language of § 153 First(q), which deals with judicial review of Adjustment Board decisions, to "mean just what it says." Sheehan, 439 U.S. 89, 93, 58 L. Ed. 2d 354, 99 S. Ct. 399. Commenting on § 153 First (q), courts have found that the "question is not whether the Board erred, clearly erred or grossly erred in interpreting the contract, but whether it interpreted the contract at all." American Train Dispatchers v. Norfolk & Western Ry., 937 F.2d 365, 366 (7th Cir. 1991). This limited standard of review exists because "Congress intended minor grievances of railroad workers to be decided finally by the Railroad Adjustment Board." Gunther v. San Diego & Arizona Eastern Ry. Co., 382 U.S. 257, 263, 15 L. Ed. 2d 308, 86 S. Ct. 368 (1965).
We have already found that PLB 4685 did the job it was assigned to do, that is, it interpreted the relationship between the 1960 and 1986 agreements. Specifically, it found that the 1986 agreement could not vitiate the rights of UTU's members established under the 1960 agreements. Accordingly, we must grant UTU's motion for summary judgment and enforce the PLB's award under 45 U.S.C. § 153 First (p), unless it falls within one of the three categories described above.
A. Constitution of PLB 4685
BLE argues that PLB 4685 was unlawfully constituted and therefore lacked jurisdiction to decide the issue presented by UTU. Specifically, BLE contends that it was improperly relegated to "interested party" status and excluded from (1) formulating the question to be addressed by the arbitration panel; (2) selecting the neutral member of the panel; and (3) arguing the matter through its panel member of the PLB in executive session, where, after all of the evidence has been heard and before the neutral member makes up his mind, the members of the PLB debate the merits of the case. BLE asserts that under United Transp. Union v. Burlington North, Inc., 470 F.2d 813, 815-16 (8th Cir. 1972) (BNI I) and General Comm. of Adjustment v. Burlington North, Inc., 563 F.2d 1279, 1284 (8th Cir. 1977) (BNI II), it was entitled to full participation in the arbitration hearing, which means, among other things, that the PLB was required to include a member from BLE.
UTU objects that BLE has waived this argument by failing to timely raise it. It cites Brotherhood of Ry., Airline and Steamship Clerks v. St. Louis Southwestern Ry. Co., 676 F.2d 132 (5th Cir. 1982), in support of this argument. In that case the court found that a Board's failure to notify an employee whose rights were likely to be affected by its hearing constituted a violation of the mandatory notice provision of § 153 First (j) of the Railway Labor Act. Id. at 136. However, the court went on to state that since the failure to comply with the notice requirement did not deprive the Board of its jurisdiction, and since the aggrieved employee failed to raise the issue during the Board's hearing, the procedural error had been waived. Id. at 136-37. The court, quoting Brotherhood of Railroad Trainmen v. Chicago, Milwaukee, St. Paul & Pacific R.R., 127 U.S. App. D.C. 58, 380 F.2d 605, 608-09 (D.C.Cir. 1967), cert. denied, 389 U.S. 928, 19 L. Ed. 2d 279, 88 S. Ct. 289 (1967), stated as follows:
Procedural objections to the action of an administrative agency or trial court must be timely made to give the tribunal an opportunity to correct the error, if error there be; such contentions cannot first be made on appeal. It is imperative to an efficient and fair administration of justice that a litigant may not withhold his objections, await the outcome, and then complain that he was denied his rights if he does not approve the resulting decision.
676 F.2d at 136. See also United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 97 L. Ed. 54, 73 S. Ct. 67 (1952). St. Louis Southwestern Ry., UTU contends, controls this case. We agree.
It is well established that parties to an arbitration may waive procedural defects by failing to bring such issues to the arbitrator's attention in time to allow the arbitrator an opportunity to cure the defects. National Post Office Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 841 n. 4 (6th Cir. 1985); Order of Railway Conductors v. Clinchfield Railway Co., 407 F.2d 985, 988 (6th Cir.), cert. denied, 396 U.S. 841, 24 L. Ed. 2d 92, 90 S. Ct. 104 (1969); St. Louis Southwestern Ry., 676 F.2d at 136-38. BLE had notice of the hearing, filed a brief with the PLB, participated in the hearing, and had its position considered by the neutral. However, at no point prior to filing its intervenor motion in this case has BLE complained about the constitution of the PLB. Instead, BLE has delayed raising any objection to the composition of the PLB or its exclusion from full participation in the hearing until now, almost eight years after the PLB conducted its original hearing. This type of dilatory behavior renders BLE's argument an "afterthought, brought forward at the last possible moment to undo" the arbitrator's award "without consideration of the merits ...." L.A. Tucker, 344 U.S. at 36. Therefore, we find that BLE has waived its objections as to the composition of the PLB.
We think that BNI I and BNI II are not to the contrary. In BNI I, the court indicated that where a Board was convened to interpret contractual language common to collective bargaining agreements binding both the BLE and UTU, both parties had the right to participate in the hearing before the board. However, in that case, no waiver issue was ever raised or considered. In BNI II the dispute arose over whether UTU could require the carrier to submit a merger-related dispute to a PLB before the PLB had even been convened. 563 F.2d at 1281. This is clearly not precedent for the case we are faced with here.
Neither does Brotherhood of Locomotive Engineers v. Union Pacific Ry. Co., No. 91-C-1955 (E.D. Mo. April 15, 1996) (McCoy Decl. Ex. N) help BLE on this point. In that case, the district court found that BLE had not waived its objections regarding its exclusion from the composition of a Board by waiting until the hearing before the Board to present them. Specifically, the court found that "plaintiffs presented their objections at a time when, had the Board found the objections meritorious, the Board had an opportunity to grant plaintiffs relief prior to consideration and resolution of the merits of the issue(s) before the Board." Id. at 15. Therefore, the court found the objections were not waived. Id. Here, not only did BLE fail to object to the composition of the Board during the hearing, it actively participated in the hearing, presented its position, and kept silent about its purported misgivings until it decided to intervene in the present case approximately eight years after the Board was convened. This, we think, clearly constitutes an instance of procedural default. See St. Louis Southwestern Ry., 676 F.2d at 137.
B. Timeliness of PLB 4685's Award
Next, BLE and IC both argue that the PLB's judgment should be set aside due to the PLB's failure to render a timely award. The agreement establishing PLB 4685 provided that the Board "shall make findings of fact and render an award on each case submitted to it, within ninety (90) days, if possible, after close of the hearing of each case ...." (McCoy Decl. Ex. I, PI). Since the PLB heard the matter on November 29, 1989, and did not render a decision until April 24, 1995, the 90-day limit was clearly exceeded.
Although it is true that a PLB can lose its jurisdiction to render an award if it does not do so within a "reasonable time" after the original time limitation provided for in the agreement, Jones v. St. Louis-San Francisco Ry. Co., 728 F.2d 257, 265 (6th Cir. 1984), the general rule is that "unless the agreement itself makes the deadline jurisdictional, a party's failure to complain about delay before the award is made forfeits his right to challenge the timeliness of the award." Hill v. Norfolk and Western Ry. Co., 814 F.2d 1192, 1199 (7th Cir. 1987); see also McKesson Corp. v. Local 150 IBT, 969 F.2d 831, 834 (9th Cir. 1992); West Rock Lodge No. 2120 v. Geometric Tool Co., 406 F.2d 284, 286 (2d Cir. 1968). Here, IC and BLE have waived the right to challenge the timeliness of the PLB's award by their failure to complain until now. BLE contends that since IC did complain about the timeliness issue in 1993 (Gibbins Aff. Ex. 20), an "objection" was made on behalf of IC and BLE that renders the award invalid under St. Louis-San Francisco Ry. Co., 728 F.2d at 266. However, the correspondence cited as evidence of this "complaint" is simply a letter from IC responding to a letter by UTU making additional arguments in support of its position to neutral Kasher. Nowhere does it indicate any objection to the untimeliness of the neutral's decision.
For this reason, we find that BLE and IC have waived their timeliness argument, and we deny their motions for summary judgment on this basis.
C. Vagueness of PLB 4685's Award
Finally, BLE and IC both argue that the PLB's decision should be set aside because it is unenforceably vague. They argue that the award merely states that "the issue is resolved in accordance with the position advocated by UTU," and thus is no different than the award in Railroad Yardmasters v. Indiana Harbor Belt Ry., 166 F.2d 326 (7th Cir. 1948), which read, "complaint disposed of per findings," and was set aside by the Seventh Circuit. Id. at 329. We disagree. As we have stated many times in this opinion, we think that the PLB's decision adequately explained that the basis for its decision was the conflict between the 1960 and 1986 agreements. BLE and IC mischaracterize the award when they say that it simply ordered the issue resolved in accordance with UTU's position. In fact, the Board specifically found that IC and BLE agreed to a different manner of regulating the engineers' extra boards that undercut the rights of the UTU and its employees, established under the terms of the 1960 tripartite agreement.
The PLB went on to find that the question presented -- whether the IC and BLE had the "right to change" the 1960 mileage agreement -- was answered in UTU's favor, in the negative. Far from vaguely basing its award on some unexplained "findings," neutral Kasher found that the 1986 agreement violated the 1960 agreements and therefore was invalid. We therefore deny BLE's and IC's motions for summary judgment on this point.
With respect to the implementation of the award, both IC and BLE claim to be at a loss regarding how the order would be specifically enforced. IC asks whether it has to rescind the wage and benefit changes it implemented ten years ago, and expresses concern over the fate of the engineers who, if cut off the guaranteed boards, would have no place to flow. Both BLE and IC assert that the award simply cannot be implemented since there are no longer any firemen at IC. However, the PLB's order decided one thing very clearly: the 1986 agreement, insofar as it established guaranteed boards, violated the 1960 agreement and is therefore invalid. As we have found that the arbitrator acted in a manner consistent with the Railway Labor Act in making this award, we must enforce this order. Should the parties require clarification regarding the precise scope of the award, we think that their queries are more properly directed to the Adjustment Board. See 45 U.S.C. § 153 First (m) (stating that if a dispute arises involving an interpretation of the Board's award, "the division of the Board upon request of either party shall interpret the award in light of the dispute").
For the foregoing reasons, we grant UTU's motion for summary judgment and deny BLE's and IC's motions for summary judgment.
JAMES B. MORAN
Senior Judge, U.S. District Court
March 11, 1998
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that the court enters summary judgment in favor of the plaintiff, UNITED TRANSPORTATION UNION and against defendants ILLINOIS CENTRAL RAILROAD and BROTHERHOOD OF LOCOMOTIVE ENGINEERS.
March 11, 1998