Brotherhood of Railroad Signalmen v. National Railroad Passenger Corporation

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 14, 2023 Decided September 24, 2024
No. 23-7018
B ROTHERHOOD OF R AILROAD S IGNALMEN ,
APPELLEE
v.
NATIONAL R AILROAD P ASSENGER C ORPORATION ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-00841)
Donald J. Munro argued the cause and filed the briefs for
appellant.
Richard S. Edelman argued the cause and filed the brief
for appellee.
Before: HENDERSON , M ILLETT and P ILLARD, Circuit
Judges.

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Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LEC RAFT HENDERSON, Circuit Judge: In 2017, the
Brotherhood of Railroad Signalmen (the Union)—the
designated bargaining representative for National Railroad
Passenger Corporation (Amtrak) employees who perform
signal and communications work—initiated proceedings in
federal district court contesting Amtrak’s refusal to commit to
using Union-represented signalmen in a newly acquired
building. The district court sent the case to mandatory
arbitration under the Railway Labor Act (RLA), 45 U.S.C.
§ 151 et seq. The National Railroad Adjustment Board (the
Board) dismissed the claim, concluding that it did not have
jurisdiction because the Union was seeking relief based on
hypothetical facts. On review, the district court vacated the
award and remanded for further proceedings, holding that the
Board did not consider or interpret the parties’ agreement.
Amtrak appeals the district court’s vacatur, arguing that
the award should be upheld under the highly deferential
judicial standard of review because the award is at least
arguably based on rail industry common law incorporated in
the parties’ agreement and on Rule 56 of the collective
bargaining agreement. Even under that limited standard of
review, we affirm the district court and find that the arbitral
award should be vacated because the award did not decide the
dispute based on the parties’ contract; instead it relied on legal
principles governing federal courts’ subject-matter
jurisdiction, a matter wholly outside the scope of the Board’s
authority.
I. BACKGROUND
In 2015, Amtrak acquired the Railway Express Agency
(REA) Building in Washington, D.C., in connection with a

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planned expansion to Union Station. The Union asserted that
communication and signal work in the REA Building should
accrue to its members; Amtrak refused to commit to that
position and argued the collective bargaining agreement did not
cover the REA Building.
In 2017, the Union filed a complaint in federal district
court alleging that Amtrak had violated the collective
bargaining agreement by refusing to assign work in the REA
Building to Union signalmen. Bhd. of R.R. Signalmen v. Nat’l
R.R. Passenger Corp., 310 F. Supp. 3d 131, 137 (D.D.C. 2018)
(Signalmen I). Amtrak moved to dismiss for lack of
jurisdiction, arguing that the dispute was “minor” under the
RLA and therefore subject to binding arbitration. Def.’s Mem.
at 1, ECF No. 7-1, Signalmen I, 310 F. Supp. 3d 131 (No. 17-
1287). The district court agreed with Amtrak and dismissed
the case. Signalmen I, 310 F. Supp. 3d at 138-141.
The Union then set out on the arbitration path and grieved,
by letter, Amtrak’s alleged violation of the collective
bargaining agreement. Amtrak responded that the grievance
was “procedurally defective” because it failed to identify
specific allegations, claimants and remedies. J.A. 174. After
further correspondence, the Union submitted the matter for
arbitration before the Board. The parties submitted written
briefs and supporting materials and Amtrak argued for
dismissal on several grounds, including lack of jurisdiction,
procedural defects and failure on the merits.
On December 15, 2021, the Board issued Award
No. 44649 dismissing the Union’s claim. The Board
summarized the parties’ positions, including Amtrak’s
contention “that the Claim must be dismissed because it is
procedurally defective; the original Claim named no
Claimants; identified no specific work and requested no

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monetary relief.” J.A. 17. But “[m]ore importantly,” the Board
explained, “the original claim requests what is essentially a
declaratory judgment, inasmuch as the statement of claim now
before the Board is asking for future work to be assigned to
[Union] members.” J.A. 18. The Board continued:
The Board does not have jurisdiction to
interpret and apply the Agreement to future
situations, the facts of which are unknown.
Declaratory judgments and injunctive relief are
beyond the jurisdiction of the Board, whose
“function is to resolve claims arising from
established or determinable facts and issues.”
PLB No. 1202, Award No. 1. . . .
The Board agrees with the Carrier [Amtrak] that
the claim is a request for an advisory opinion
and is therefore beyond the Board’s jurisdiction.
It is a fundamental principle of jurisprudence—
something that first-year law students learn in
the first semester of Civil Procedure—that there
must be a case in controversy before a lawsuit
can be filed; the fact that an entity might do
something in violation of a contract is not
enough to establish a right to sue for breach of
that contract. In this claim, there is no
contention and no evidence that the Carrier has
assigned any communications work at the REA
Building to anyone, much less to non-[Union]-
represented employees.
The Organization [Union] is asking the Board
to rule on a hypothetical set of facts that has yet
to materialize. The Board’s jurisdiction is
limited to actual controversies between the

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parties. Until such a controversy arises, the
Board must dismiss the claim before it.
J.A. 18 (emphasis added).
The Union responded by filing a petition in the district
court seeking review and vacatur of the arbitral award. The
parties cross-filed motions for summary judgment. Amtrak
argued that the award should be affirmed because it interpreted
the parties’ agreement, rather than defending it on the
jurisdictional ground it raised before the Board. The district
court noted the “exceedingly high” burden to vacate an arbitral
award but faulted the award for (1) failing to acknowledge or
cite to the collective bargaining agreement and (2)
contradicting itself as to the basis for its jurisdictional
conclusion because the award stated at the outset that it “ha[d]
jurisdiction” but later concluded that the claim was “beyond the
Board’s jurisdiction.” Bhd. of R.R. Signalmen v. Nat’l R.R.
Passenger Corp., 2023 WL 1469498, at *2-3 (D.D.C. Feb. 2,
2023) (Signalmen II). “Because the Court [could ]not conclude
that the Board considered and interpreted the parties’
agreement, and because Amtrak d[id] not defend the award on
jurisdictional grounds,” the district court vacated the award and
remanded for further proceedings. Id. at *3. This appeal
followed.1
1 At oral argument, neither party could speak to whether there
is currently any signalmen work being done at the REA Building.
Counsel for the Union stated that the Union does not have “any role”
in the REA Building, Oral Arg. Tr. 37:24-38:25, and counsel for
Amtrak stated that he had no knowledge as to the current status of
the building based on the record, Oral Arg. Tr. 40:25-42:15.

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II. ANALYSIS
Under Section 3 First (q), an arbitral award “may be set
aside, in whole or in part, or remanded to the division, for
failure of the division [of the Board] to comply with the
requirements of [the RLA], for failure of the order to conform,
or confine itself, to matters within the scope of the division’s
jurisdiction, or for fraud or corruption by a member of the
division making the order.” 45 U.S.C. § 153 First (q).
Our review is “very limited”: “[I]f an arbitrator is even
arguably construing or applying the contract and acting within
the scope of his authority, the fact that a court is convinced he
committed serious error does not suffice to overturn his
decision.” Major League Baseball Players Ass’n v. Garvey,
532 U.S. 504, 509 (2001) (per curiam) (cleaned up); see also
Nw. Airlines, Inc. v. Air Line Pilots Ass’n, Int’l, 808 F.2d 76,
80 (D.C. Cir. 1987) (judicial standard of review of arbitral
awards is “amongst the narrowest known to the law” (quotation
omitted)). Our inquiry “is not whether the arbitrator or
arbitrators erred in interpreting the contract; it is not whether
they clearly erred in interpreting the contract; it is not whether
they grossly erred in interpreting the contract; it is whether they
interpreted the contract.” Hill v. Norfolk & W. Ry. Co., 814
F.2d 1192, 1195 (7th Cir. 1987).
An exceedingly narrow standard of review does not mean,
however, that anything goes. See Verizon Washington, D.C.
Inc. v. Commc’ns Workers of Am., AFL-CIO, 571 F.3d 1296,
1304 (D.C. Cir. 2009) (Henderson, J., concurring). The arbitral
award “must draw its essence from the contract and cannot
simply reflect the arbitrator’s own notions of industrial
justice.” United Paperworkers Int’l Union, AFL-CIO v. Misco,
Inc., 484 U.S. 29, 38 (1987). As this Court explained in
American Postal Workers Union v. U.S. Postal Service, an

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arbitral award does not draw its essence from the contract “[i]f
the arbitrator . . . rendered a judgment based on external legal
sources, wholly without regard to the terms of the parties’
contract.” 789 F.2d 1, 8 (D.C. Cir. 1986).
This case presents the rare circumstance in which the
Board has wholly disregarded the parties’ contract and
improperly based its arbitral award on external legal principles.
Thus, the Board’s award warrants vacatur, as the district court
concluded.
The arbitral award summarized the parties’ arguments but
then found a lack of jurisdiction based on the “fundamental
principle of jurisprudence—something that first-year law
students learn in the first semester of Civil Procedure—that
there must be a case in controversy before a lawsuit can be
filed.” J.A. 18. There was no reference to the contract in
reaching this conclusion and therefore no indication that the
Board “looked to and relied on the proper sources of [its]
authority.” U.S. Postal Serv. v. Am. Postal Workers Union, 553
F.3d 686, 695-96 (D.C. Cir. 2009). The Board failed to even
“purport to be interpreting the contract.” Madison Hotel v.
Hotel & Rest. Emps., Loc. 25, AFL-CIO, 144 F.3d 855, 859
(D.C. Cir. 1998) (en banc) (alteration omitted) (quoting Util.
Workers Union of Am., Loc. 246, AFL-CIO v. N.L.R.B., 39 F.3d
1210, 1216 (D.C. Cir. 1994)).
Instead, the Board invoked principles related to federal
courts’ subject-matter jurisdiction and Article III standing,
legal principles wholly external to the parties’ contract and
beyond the scope of the Board’s decisionmaking power. In our
reading, the Board did not simply “analogize” to federal courts’
subject-matter jurisdiction, but rather relied upon federal
jurisdiction principles to conclude that it cannot “rule on a
hypothetical set of facts that has yet to materialize,” J.A. 18.

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The award discussed a supposed “case in [sic] controversy”
requirement grounded in the “fundamental principle[s] of
jurisprudence” taught in law school, without reference to any
Board procedural rule or regulation. See J.A. 18. The Board’s
reliance on constitutional limits regarding federal courts’
subject-matter jurisdiction to decline to arbitrate the grievance
on its merits is contrary to Supreme Court precedent and
verboten under our standard of review.
In Union Pacific Railroad Co. v. Brotherhood of
Locomotive Engineers, the Supreme Court addressed the
differences between jurisdictional rules, which can never be
forfeited or waived because they affect the tribunal’s power to
hear a case, and claim-processing rules, which are forfeitable
even if obligatory and often take the form of pleading
instructions. 558 U.S. 67, 81-85 (2009). The Congress has
defined the Board’s jurisdiction to include “all disputes
between carriers and their employees ‘growing out of
grievances or out of the interpretation or application of
agreements concerning rates of pay, rules, or working
conditions.’” Id. at 82 (quoting Slocum v. Delaware, L. & W.R.
Co., 339 U.S. 239, 240 (1950)). The Supreme Court in Union
Pacific recognized that the Board may promulgate and enforce
procedural claim-processing rules but found that it has “no
authority to adopt rules of jurisdictional dimension,” meaning
that it cannot alter the jurisdiction set by statute. Id. at 84. It
follows, then, that the Board may validly decline to resolve a
grievance if it violates a procedural rule but may not decline to
do so on jurisdictional grounds if the grievance falls within the
Board’s statutory jurisdiction.
Here, the grievance was premised on a dispute over
whether the parties’ contract extended to work in the REA
Building, meaning it arose from a disagreement as to the
meaning of the contract. The matter, then, fell squarely within

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the jurisdiction the Congress assigned to the Board. See
45 U.S.C. § 153 First (i) (granting the Board jurisdiction of,
inter alia, “disputes . . . growing out of the interpretation or
application of agreements concerning rates of pay, rules, or
working conditions”).
An arbitrator may, in the course of interpreting a contract,
consider industry common law, which includes other arbitral
awards. See Transp.-Commc’n Emp. Union v. Union Pac.
R.R., 385 U.S. 157, 161 (1966); Pan Am. Airways Corp. v. Air
Line Pilots Assoc., Int’l, 206 F. Supp. 2d 12, 21 (D.D.C. 2002),
aff’d, 62 Fed. App’x 356 (D.C. Cir. 2003) (per curiam). But in
this case, the Board looked to arbitral precedent for a mistaken
jurisdictional principle, not to determine industry common law.
The cited award, Award No. 1, Public Law Board No. 1202,
appears to be a decision made on jurisdictional grounds and
does not invoke industry practice or custom. Nor does that
precedent rely on or establish a procedural claim-processing
rule. The cited award dismissed the dispute “for lack of
jurisdiction” because:
the exhibits do not serve to create an actual
dispute where none exists and thus we are called
upon to interpret and apply the agreement to
future situations whose facts and issues are not
yet known. The Board’s function is to resolve
claims arising from established or determinable
facts and issues. The confronting protest does
not present such a claim.
J.A. 90-91. But the Board does not decide the limits of its
“function”; the Congress does. See Union Pac., 558 U.S. at 84.
Because the Board cannot adopt jurisdictional rules, Award
No. 1, Public Law Board No. 1202, cannot sustain the award.

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Moreover, even when arbitrators look to industry common
law and arbitral precedent, they must do so in service of
interpreting the contract. Our court has observed that an
arbitrator “may ‘look for guidance from many sources,’” Nat’l
Postal Mail Handlers Union v. Am. Postal Workers Union, 589
F.3d 437, 443 (D.C. Cir. 2009) (quoting United Steelworkers
of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960)),
relying on Supreme Court language to that effect. The full rule
announced by the Supreme Court, however, is that the
arbitrator “may of course look for guidance from many sources,
yet his award is legitimate only so long as it draws its essence
from the collective bargaining agreement. When the
arbitrator’s words manifest an infidelity to this obligation,
courts have no choice but to refuse enforcement of the award.”
United Steelworkers of Am., 363 U.S. at 597. An arbitral award
may be affirmed if the arbitrator uses outside legal sources in
order to interpret the parties’ contract. See Pan Am., 206 F.
Supp. 2d at 21-22 (affirming arbitral award because the Board
properly “surveyed the industry common law and reviewed
other arbitration decisions applying just cause provisions” “in
an effort to inform itself and illuminate the contours of the just
cause provision” in the parties’ contract); Nat’l Postal Mail
Handlers Union, 589 F.3d at 440 (affirming arbitral award
because the Board used a “substantive background principle of
law,” the common law doctrine of continuing violations, “for
help in construing the agreement”). Conversely, an arbitral
award using legal sources unmoored from the parties’ contract
exceeds the Board’s authority, as the award “cannot simply
reflect the arbitrator’s own notions of industrial justice.”
Misco, 484 U.S. at 38.
Here, the Board relied upon principles of Article III
jurisdiction to dismiss the Union’s grievance as beyond “[t]he
Board’s jurisdiction,” J.A. 18, with no reference to the parties’
contract. Its single citation to arbitral precedent on

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jurisdictional rules—rules that the Board has no authority to
create—manifests that, far from interpreting the contract, it was
applying its own notion of industrial justice. Our standard of
review means that our inquiry boils down to “whether [the
arbitrator] interpreted the contract.” Hill, 814 F.2d at 1195.
Reviewing this arbitral award, we believe the answer is no.
In its submission to us, Amtrak advanced a position more
restrictive than even our highly limited standard of review,
contending that we must affirm the award unless either there is
an explicit indication that the Board is not engaged in contract
interpretation or, it seems, Amtrak cannot make a single non-
sanctionable argument in favor of it. See Oral Arg. Tr. 10:23-
11:3 (Amtrak counsel: “if . . . you would not sanction me for
arguing that this arbitrator was relying on those contractual
principles as opposed to an Article 3 standard or some statutory
basis, then the Court should affirm the award”). Amtrak’s
position would wholly undermine judicial review of arbitral
awards. Although the Board need not explain its reasoning at
all, a reviewing court may of course review any reasoning it
provides for its decision under the appropriate standard of
review. Amtrak’s position also elides the fact that we do have
a sufficient indication that the Board did not interpret the
contract. According to the text of the award, the Board based
its decision on the jurisprudential principle of Article III
jurisdiction, not on any contractual provision—whether
express or implied as a matter of industry common law. There
is, then, no “permissible route to the stated conclusion” that we
can glean from the award. Sargent v. Paine Webber Jackson
& Curtis, Inc., 882 F.2d 529, 532 (D.C. Cir. 1989). Vacatur is
therefore the proper remedy.
Amtrak also argues that Rule 56 of the parties’ agreement,
cited in the Union’s original claim, provides a contractual basis
for the award because it requires that grievances or claims must

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be presented “by the employee or on his behalf” within 60 days
“from the date of the occurrence on which the grievance or
claim is based.” J.A. 372. The Board, however, never
mentioned Rule 56 and neither party suggested in arbitration
that Rule 56 should be read to preclude grievances that do not
name “the employee” as somehow hypothetical. We believe
vacatur is proper here, where the Board “simply ignore[d] the
contract,” Madison Hotel, 144 F.3d at 859.
For the foregoing reasons, the judgment of the district
court vacating the arbitral award is affirmed. The case is
remanded to the district court with instructions to remand to the
National Railroad Adjustment Board for proceedings
consistent with the opinion herein.
So ordered.

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