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Brotherhood of Maintenance of Way Employees Pennsylvania Federation Brotherhood of Maintenance of Way Employees v. Consolidated Rail Corp.

filed: December 27, 1988.

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES THE PENNSYLVANIA FEDERATION BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, DAVID GRAY, JR., AND JERRY M. TAYLOR
v.
CONSOLIDATED RAIL CORPORATION, APPELLANT



On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil No. 86-1467.

Sloviter and Becker, Circuit Judges, and Fullam, District Judge*fn*

Author: Sloviter

Opinion OF THE COURT

SLOVITER, Circuit Judge.

Consolidated Rail Corporation (Conrail) appeals from the district court's order holding that two cases of employees dismissed for accident proneness should be remanded to the National Railroad Adjustment Board (NRAB) for further evidentiary findings. The initial question before us is whether we have jurisdiction over Conrail's appeal. We conclude that the remand does not constitute a final order, and therefore dismiss this appeal for lack of jurisdiction.

I.

The Brotherhood of Maintenance of Way Employees (Union) and the two Conrail employees, Jerry M. Taylor and David Gray, Jr., both dismissed as accident prone, had appealed their dismissal to the NRAB. The NRAB found that in Taylor's seven and a half years of employment he sustained twelve injuries of relative severity; Gray had sustained seven injuries in seven years of employment. The NRAB upheld Taylor's dismissal; as to Gray it found that the record supported his accident proneness but that the discipline imposed had served its purpose and therefore it ordered that Gray be returned to service without backpay.

The Union and the employees filed a petition for review of those decisions in the United States District Court for the Western District of Pennsylvania pursuant to 45 U.S.C. ยง 153, First (q). The district court found that the NRAB awards lacked any foundation in reason or fact because "[t]here is simply no evidence adduced in this case showing that the two employees were responsible for any of the accidents in question." App. at 23 (emphasis in original). The court found that the NRAB had therefore exceeded its authority and jurisdiction and remanded the case to the NRAB to "hear evidence as to whether Petitioners Gray and Taylor were sufficiently responsible for the accidents in question to warrant their dismissal." Id.

Conrail appeals the order of the district court on the ground that the court exceeded its limited jurisdiction to review arbitration awards under the Railway Labor Act by substituting its judgment for that of the arbitrator with respect to the appropriate standard for determining an employee to be accident prone. The Union and the employees have moved to dismiss the appeal on the ground that it was not taken from a final order.

II.

The general principle enunciated by this court is that district court orders remanding cases to administrative agencies are not final and appealable. See, e.g., Bachowski v. Usery, 545 F.2d 363, 371-73 (3d Cir. 1976); Marshall v. Celebrezze, 351 F.2d 467, 468 (3d Cir. 1965) (per curiam). In some circumstances, however, we have held that we have jurisdiction over such orders. See, e.g., United States v. Spears, 859 F.2d 284 (3d Cir. 1988); AJA Assocs. v. Army Corps of Engineers, 817 F.2d 1070, 1073 (3d Cir. 1987); Horizons Int'l, Inc. v. Baldrige, 811 F.2d 154, 160 (3d Cir. 1987); United Steelworkers of Am. Local 913 v. Union R.R., 648 F.2d 905, 910-11 (1981).

In support of its argument that the remand order in this case is appealable, Conrail relies on this court's decision in Union Railroad, 648 F.2d 905, where we held that an order was final which set aside the decision of a Public Law Board, directed removal of a member of the Board, and ordered a de novo investigative hearing into the grounds for which an employee was terminated. However, we recognized the general legal principle that "remands to administrative agencies are not ordinarily appealable under section 1291." Id. at 909 (citing Celebrezze, 351 F.2d at 468). We continued, "specifically, orders directing remands to Railway Labor boards to consider additional evidence have been considered nonfinal." Id. (citing United Transport. Union v. Illinois Cent. R.R., 433 F.2d 566, 568 (7th Cir. 1970), cert. denied, 402 U.S. 915, 28 L. Ed. 2d 661, 91 S. Ct. 1374 (1971); Transportation-Communication Div.--Bhd. of Ry., Airline and S.S. Clerks v. St. Louis-S.F. Ry., 419 F.2d 933 (8th Cir. 1969), cert. denied, 400 U.S. 818, 27 L. Ed. 2d 45, 91 S. Ct. 34 (1970)). Even if the district court erred in this case in holding that evidence of the employees' responsibility for the accidents or injuries was relevant and should be considered, it is difficult to characterize the order remanding as anything other than an order directing the arbitration board to take additional evidence.

The order at issue in Union Railroad was of a different character. The issue on which there already had been several appeals and remands to the Public Law Board was whether the terminated employee had waived his right to counsel at the initial Board hearing. When the district court ruled, contrary to the Board's finding, that the employee had not waived his right to counsel and ordered a new hearing on the merits with new counsel, its order, as we explained, "had the practical effect of dismissing the present litigation and review of the legal questions raised by this appeal will be foreclosed if not permitted now." Id. at 909.

Our Union Railroad opinion did not undermine the principle enunciated in Bachowski that remand orders are generally not final. In Bachowski, which arose under Title IV of the Labor-Management Reporting and Disclosure Act (LMRDA), the district court reviewed a decision made by the Secretary of Labor not to file suit to overturn a union election for alleged violations of the LMRDA. The district court ruled that the standard utilized by the Secretary in deciding whether to bring suit was irrational and, although it did not then order the ...


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