United Transportation Union, et al v. BNSF Railway Company

Filing

FILED OPINION (STEPHEN R. REINHARDT, ANDREW J. KLEINFELD and MILAN D. SMITH, JR.) REVERSED AND REMANDED. Judge: SR Authoring, FILED AND ENTERED JUDGMENT. [8548436]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED TRANSPORTATION
UNION ; RICHARD D. KITE,
Plaintiffs-Appellants,

No. 11-35714

v.

D.C. No.
3:10-cv-05808RBL

BNSF RAILWAY COMPANY ,
Defendant-Appellee.

OPINION

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
July 11, 2012—Seattle, Washington
Filed March 13, 2013
Before: Stephen Reinhardt, Andrew J. Kleinfeld, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Reinhardt

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SUMMARY*

Labor Law
The panel reversed the district court’s dismissal of a
union’s petition for review under the Railway Labor Act of
the arbitration decisions of two Public Law Boards
concerning a dispute regarding a railway employee’s
discharge.
The panel held that the district court had subject matter
jurisdiction under 45 U.S.C. § 153(q) First, to review the
order of the first Public Law Board, which dismissed the case
without prejudice after rejecting the union’s allegations of
fraud and corruption in connection with the recusal of a
neutral Board member who had issued a draft decision
ordering the employee’s reinstatement.
The panel held that the union stated a claim for corruption
as to the order of the first Board by alleging that the railway’s
Board representative had made an economic threat against the
neutral member if she did not change the outcome of the draft
decision. The union also stated a claim for corruption as to
the order of the second Board, which issued a final award in
favor of the railway, by alleging that the second Board’s
neutral member had been made aware of the prior threat. The
panel remanded the case to the district court to allow the
union to attempt to prove its allegations of corruption by clear
and convincing evidence.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Rick Pope and Stephen C. Thompson, Kirklin Thompson &
Pope LLP, Portland, Oregon, for Plaintiffs-Appellants.
David M. Pryor and Tamara Buettner Middleton, BNSF
Railway Company, Fort Worth, Texas, for DefendantAppellee.

OPINION
REINHARDT, Circuit Judge:
This case concerns allegations of corruption by a
representative of the BNSF Railway Company (“Railway”)
during mandatory arbitration of a dispute relating to the
discharge of a Railway employee, Richard Kite, represented
by the United Transportation Union (“Union”). In brief, after
a special adjustment board heard Kite’s case and the neutral
member circulated a draft award reinstating him, the Railway
representative allegedly threatened the member by stating, “If
you are going to issue these kinds of opinions, you will never
work for a Class One railroad again.” Within two months of
the making of the alleged statement by the Railway
representative, the neutral member recused herself and issued
an order dismissing the case without prejudice. The case was
then reassigned to a new board with a new neutral member
(but with the same Railway and Union representatives). The
new neutral member ruled against Kite and issued a final
award in favor of the Railway. The Union filed a Petition for
Review in federal district court under the Railway Labor Act,
45 U.S.C. § 153(q) First, arguing that, because the Railway
achieved this favorable outcome through corruption, the court

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should set aside the award and reinstate the draft award
favorable to Kite.
The district court granted the Railway’s motion to dismiss
on the basis that (1) it lacked jurisdiction over part of the suit,
and (2) with respect to the remainder of the suit, the Union
had failed to state a claim upon which relief could be granted.
Both determinations were incorrect, and we reverse
accordingly.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Railway Labor Act
To prevent crippling strikes in the railroad industry,
Congress enacted the Railway Labor Act (RLA or Act) in
1926. 44 Stat. 577 (1926). Believing that private settlement
would “provide for the prompt disposition of disputes
between carriers and their employees,” id. at 577, Congress
designed the RLA to encourage and facilitate private
settlement of labor disputes. The Act’s first substantive
section imposed a duty on both labor and management
to exert every reasonable effort to make and
maintain agreements concerning rates of pay,
rules, and working conditions, and to settle all
disputes . . . in order to avoid any interruption
to commerce or to the operation of any carrier
growing out of any dispute between the
carrier and the employees thereof.
Id. at 577–78 (codified at 45 U.S.C. § 152, First); see also
Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377
(1969) (describing this duty as the “heart of the Railway

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Labor Act”). While this duty was constant, irrespective of the
nature of the dispute, the remainder of the Act differentiated
between major and minor disputes. For major disputes—i.e.,
those disputes relating to the formation of collective
bargaining agreements1—Sections Four through Ten of the
Act outlined “a detailed framework to facilitate the voluntary
settlement of major disputes,” id. at 378. Rather than
imposing a mandatory arbitration requirement, Congress
created the National Mediation Board (NMB), an independent
agency, headed by a three-person panel appointed by the
President of the United States. The NMB was assigned the
function of inducing the parties to settle, either through
mediation, arbitration, or at the behest of an emergency board
convened by the President. Id. For minor disputes—i.e., those
disputes relating to the interpretation or application of
existing collective bargaining agreements—Congress created
a different but analogous framework favoring voluntary
settlement. In Section Three, the Act stated that “[b]oards of
adjustment shall be created by agreement between any carrier
. . . and its . . . employees.” 44 Stat. 577, 578 (1926). The Act
further described the role of these boards in adjusting minor
disputes, including the authority to impose a “final and
binding” decision on the parties. Id. at 578.
The 1926 scheme of voluntary arbitration proved
ineffectual with respect to minor disputes. Because the
adjustment boards were to be created by mutual agreement,
and no sanctions existed for failure to create a board, many
railroads

1

The major/minor dispute distinction was recognized and explained in
Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 722–24 (1945).

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refused to participate on such boards or so
limited their participation that the boards were
ineffectual. Moreover, the boards which were
created were composed of equal numbers of
management and labor representatives and
deadlocks over particular cases became
commonplace. Since no procedure for
breaking such deadlocks was provided, many
disputes remained unsettled.

Union Pac. R.R. Co. v. Price, 360 U.S. 601, 610 (1959).
Because minor grievances were not being resolved in a timely
fashion, the railroad industry continued to face the threat of
strikes, id. at 610–611, the very harm that the RLA was
enacted to prevent. The labor organizations
were particularly dissatisfied. They urged that
effective adjustment of grievances could be
attained only by amendments to the 1926 Act
that would establish a National Adjustment
Board in which both carriers and employees
would be required to participate, that would
permit an employee to compel a carrier to
submit a grievance to the Board, that would
provide for a neutral person to break
deadlocks occurring when the labor and
management representatives divided equally,
and, finally, that would make awards binding
on the parties and enforceable in the courts,
when favorable to the employees.
Id. at 611. Labor representatives testified before Congress
that they were willing to give up their right to litigate minor
grievances because they felt that they would achieve “a

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measure of justice” under their proposed scheme. Id. at 613
(quoting To Amend the Railway Labor Act: Hearings before
the Senate Comm. on Interstate Commerce on S. 3266, 73d
Cong., 2d Sess., at 35 (statement of George Harrison,
President of the Brotherhood of Railroad Clerks)).
Congress’s 1934 amendments to the RLA closely tracked
labor’s suggested revisions. Congress replaced the ad hoc
adjustment boards with the National Railroad Adjustment
Board (NRAB), a board of 36 private persons representing
labor and management in equal numbers. 48 Stat. 1185, 1189
(1934).2 The NRAB was divided into four Divisions, each
representing different classes of employees. Id. at 1190–91
(codified at § 153(h) First). Under the revised Act, if the
carrier and the employee were unable to resolve a minor
dispute, it became mandatory that the dispute be resolved by
the appropriate division of the NRAB, upon the submission
of either party. Id. at 1191 (codified at § 153(m) First);
Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320
(1972); Trainmen v. Chi. River & Ind. R.R. Co. (Chicago
River), 353 U.S. 30, 36–39 (1957). If the division deadlocked,
a neutral referee would be appointed, chosen either by the
NRAB representatives or—if they were unable to agree—by
the NMB. 48 Stat. at 1191 (codified at § 153(l) First).
“Having created this body of railroad men to solve
disputes within their own field of expertise, Congress then
indicated that it did not want the work of the Board to be
readily undone by the courts.” Trainmen v. Cent. of Ga. Ry.
Co. (Central Georgia), 415 F.2d 403, 408 (5th Cir. 1969)
(Wisdom, J.). Awards made by the NRAB division would be
“final and binding upon both parties, except insofar as they
2

The current NRAB consists of 34 members. 45 U.S.C. § 153(a) First.

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shall contain a money award.” 48 Stat. at 1191 (codified at
§ 153(m) First). If the carrier refused to comply with an
award favoring the employee, the union could seek
enforcement of the award in federal district court. Id.
(codified at § 153(p) First). This provision also stated that “on
the trial of such suit the findings and order of the division of
the Adjustment Board shall be prima facie evidence of the
facts therein stated.” Id. To be sure, the exception for “money
awards” and the “prima facie evidence” provision were at
odds with the general finality (and exclusivity) of the RLA
scheme. See Chicago River, 353 U.S. at 39 (holding that the
labor organizations conceded their right to strike over minor
disputes, because “there was general understanding between
both the supporters and the opponents of the 1934
amendment that the provisions dealing with the Adjustment
Board were to be considered as compulsory arbitration in this
limited field”); Price, 360 U.S. at 616 (holding that
employees conceded their right to seek federal review of
NRAB determinations, because the 1934 amendments were
meant to largely “foreclose litigation” over minor disputes).
The confusion led some courts of appeal to permit effectively
de novo review of money awards when the employee brought
an enforcement proceeding against a noncompliant carrier.
Central Georgia, 415 F.2d at 408. However, in 1965 the
Supreme Court held that judicial review of money awards
could not include reassessments of the underlying merits of
the NRAB determination. Gunther v. San Diego & Ariz. E.
Ry. Co., 382 U.S. 257 (1965). Citing its prior review of the
legislative history in Chicago River and Price, the Supreme
Court recognized that NRAB decisions were meant to have
“the same finality that a decision of arbitrators would have.”
382 U.S. at 263.

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Given this finality, however, the 1934 scheme proved
unequal and unfair with respect to judicial review.
Specifically, there was a “disparity in judicial review of
Adjustment Board orders” between the carriers and
employees. Price, 360 U.S. at 614. “[A]n enforcement
proceeding against a noncomplying carrier under [Section 3]
First (p) affords the defeated carrier some opportunity to
relitigate the issues decided by the Adjustment Board.” Id. No
such review was available for employees when they were
defeated before the NRAB. However, the Supreme Court
maintained something of a loophole to the otherwise
exclusive NRAB scheme, allowing employees the choice of
whether to bring wrongful discharge cases in court or before
the NRAB. Moore v. Ill. Cent. R.R. Co., 312 U.S. 630 (1941);
Slocum v. Del. L. & W. R.R. Co., 339 U.S. 239 (1950);
Transcon. & W. Air v. Koppal, 345 U.S. 653 (1953).
Congress again amended the RLA in 1966, this time
ensuring equity between labor and management with respect
to judicial review but also confirming an arbitration-like
finality for NRAB determinations. Congress had recognized
that “the one-sidedness of existing law [wa]s extremely unfair
to employees” and its “principal purpose” for amending the
law was “to provide equal opportunity for judicial review.”
H. Rep. No. 89-1114, at 15, 3.3 Congress thus added a new

3

The Report’s other principal purpose was to remedy the significant
backlog of cases before the First and Third Division of the NRAB. The
solution, created by the 1966 law, was to allow an alternative option for
the adjustment of minor disputes. By mutual agreement, the carrier and
union could agree to have the dispute heard by a special board, consisting
of one NRAB representative from the carrier, one NRAB representative
from the union, and one neutral member chosen by the NMB. In all
substantive respects, the determinations of these special boards were
treated identically to those made by the divisions of the NRAB. These

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provision, § 153(q) First, allowing employees to seek judicial
review:
If any employee or group of employees, or
any carrier, is aggrieved by the failure of any
division of the Adjustment Board to make an
award in a dispute referred to it, or is
aggrieved by any of the terms of an award or
by the failure of the division to include certain
terms in such award, then such employee or
group of employees or carrier may file in any
United States district court in which a petition
under paragraph (p) could be filed, a petition
for review of the division’s order. A copy of
the petition shall be forthwith transmitted by
the clerk of the court to the Adjustment
Board. The Adjustment Board shall file in the
court the record of the proceedings on which
it based its action. The court shall have
jurisdiction to affirm the order of the division,
or to set it aside, in whole or in part, or it may
remand the proceedings to the division for
such further action as it may direct. On such
review, the findings and order of the division
shall be conclusive on the parties, except that
the order of the division may be set aside, in
whole or in part, or remanded to the division,
for failure of the division to comply with the
requirements of this chapter, for failure of the
order to conform, or confine itself, to matters
within the scope of the division’s jurisdiction,
special boards are referred to as “Public Law Boards,” after the public law
that created them. Pub. L. No. 89-456, 80 Stat. 208 (1966).

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or for fraud or corruption by a member of the
division making the order. The judgment of
the court shall be subject to review as
provided in sections 1291 and 1254 of
Title 28.
45 U.S.C. § 153(q) First. Even while expanding the
availability of judicial review to employees and carriers alike,
Congress also limited the scope of that review. The exception
for “money awards” was removed from § 153(m) First, and
the “shall be prima facie evidence of the facts therein stated”
language in § 153(p) First was replaced with “shall be
conclusive on the parties.” 80 Stat. 208, 209–210.
Furthermore, Congress felt that, “because the [NRAB] has
been characterized as an arbitration tribunal, the grounds for
review should be limited to those grounds commonly
provided for review of arbitration awards”: whether the
NRAB failed to comply with statutory requirements, whether
the NRAB had jurisdiction over the claim, and whether there
was “fraud or corruption” on the part of any NRAB member.
S. Rep. 89-1201, at 3, 6–7. These three grounds are reflected
in § 153(q) First, and § 153(p) First was amended
accordingly. 80 Stat. at 210. These judicial review provisions
are narrow—indeed, in 1978, the Supreme Court suggested
that “the scope of judicial review of Adjustment Board
decisions is among the narrowest known to the law.” Union
Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 91 (1978).4
4

In Union Pac. R.R. Co. v. Locomotive Eng’rs & Trainmen Gen.
Comm. of Adjustment, Cent. Region, 130 S. Ct. 584 (2009), the first
Supreme Court case to address the RLA in almost thirty years, the
Supreme Court held that the portion of § 153(q) First reading “to conform,
or confine itself, to matters within the scope of the division’s jurisdiction,”
permits judicial review of an aggrieved union’s claims that an NRAB
panel unlawfully declined to exercise jurisdiction over the union’s petition

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Following the 1966 amendments, because judicial review
was now equally available to employees, the Supreme Court
overruled Moore. Andrews v. Louisville & Nashville R.R.
Co., 406 U.S. 320 (1972). After Andrews, it was clearly
established law that employees had no choice but to rely
solely on the NRAB for “some measure of justice” with
respect to their minor disputes. Thus, as the law stands today,
precisely because the RLA scheme for minor dispute
resolution depends entirely on the effectiveness of the NRAB
determinations, the narrow judicial review of those
determinations is designed to protect the integrity of the
NRAB arbitral process.
B. Factual History
Judicial review of possible corruption within the National
Railroad Adjustment Board arbitral scheme is the subject of
this suit. The suit arises out of the Railway’s discharge of
Richard Kite,5 a conductor for the Railway, an employee of
twenty-seven years, and a member of the Union. On the
morning of January 17, 2005, the Railway conducted random
blood alcohol testing of Kite and his crew, as they reported
for service on a train traveling from Pasco, Washington to
Vancouver, Canada. The breathalyser test reported Kite as
having a blood alcohol level of 0.029 percent. Another test
performed twenty minutes later reported a level of 0.027
percent. Under the Railway’s Policy on the Use of Alcohol
and Drugs, any level above 0.02 percent is considered a

for arbitration. Id. at 599. That portion of § 153(q) First, however, is not
at issue in this case.
5

Because this case was dismissed on the pleadings, the description in
this section is based largely on the allegations in the Union’s complaint.

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positive test. Kite was asked to report to an investigative
hearing, during which the Railway concluded that Kite had
reported for work under the influence of alcohol, in violation
of General Code of Operating Rules 1.5. Furthermore,
because the Railway determined that Kite had a prior positive
test in 1997, and because the Railway’s Policy on the Use of
Alcohol and Drugs mandated dismissal for a second positive
alcohol test within ten years, the Railway discharged Kite
from employment. The Union spent the next year
unsuccessfully appealing the discharge within the Railway’s
internal dispute resolution system. Because settlement had
failed, the dispute (which was a minor dispute under the
RLA) became subject to mandatory arbitration by the NRAB.
45 U.S.C. § 153(i) First. The parties, however, elected to
resolve the dispute by establishing a special adjustment board
(i.e., a “Public Law Board”) under 45 U.S.C. § 153 Second.
Public Law Board (PLB) 7204 consisted of Roger Boldra
(Director of Labor Relations for the Railway), Jay
Schollmeyer (General Chairman of the Union), and Jacalyn
Zimmerman (neutral arbitrator, picked by the NMB). Kite’s
case was assigned to PLB 7204 as Case No. 4.
On July 31, 2008, PLB 7204 heard Kite’s case. The Union
presented two arguments before the Board. First, it
challenged the accuracy of the breathalyser test. Kite
admitted to having consumed alcohol the evening prior to the
incident, but denied that he arrived for work under the
influence of alcohol. The Union noted that the Railway could
not produce maintenance records for the breathalyser.
Second, it challenged the punishment as excessive.

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Specifically, the Union observed that the Railway had failed
to present any evidence of the earlier positive test. Kite, it
urged, should therefore be treated as a first-time offender.
On November 7, 2008, Zimmerman circulated a draft
award ruling in Kite’s favor (Zimmerman Draft Award).6
Zimmerman was unpersuaded by the Union’s first argument
and concluded that Kite had reported for work on January 27,
2005 under the influence of alcohol, in violation of General
Code of Operating Rules 1.5. However, Zimmerman agreed
with the Union’s second argument, that the record did “not
include any evidence establishing that [Kite] in fact had a
previous drug/alcohol violation. Therefore, based upon the
record before us, this is [Kite’s] first positive result.”
Zimmerman recognized the seriousness of an alcohol
violation but determined that, in light of Kite’s twenty seven
year employment with the Railway, dismissal would be
excessive punishment for a first-time offense. The
Zimmerman Draft Award thus concluded that Kite should be
reinstated without backpay, following the completion of a
rehabilitation program. In circulating the draft award,
Zimmerman offered both parties the opportunity to discuss
her decision in an Executive Session. On January 8, 2009,
Boldra, the Railway representative, requested an Executive
Session. The alleged corruption that is at the heart of this case
occurred during the Session.
On February 19, 2009, Zimmerman held the Executive
Session, which the Board members attended via telephone.

6

The “November 7, 2008” date appears in the Union’s complaint.
However, the record before us suggests that Zimmerman’s email
circulating the draft order was dated December 22, 2008. This discrepancy
has no substantive effect on our determination.

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On the call, Boldra expressed his disagreement with
Zimmerman’s decision and asked her to reverse it.
Zimmerman refused, citing her notes from the hearing, which
she said supported her conclusion. Boldra then allegedly
stated, “If you are going to issue these kinds of opinions, you
will never work for a Class One railroad again.” Although
Boldra has since denied using those exact words, the Railway
does not contest that he made the statement. Zimmerman’s
response was to state, according to the Union’s Petition for
Review, “that all she could do at that point was recuse
herself.”
On April 20, 2009, Zimmerman issued an order
dismissing the case without prejudice (Zimmerman Order).
Based on the record available to us, the details of what
occurred in this two month period between the Executive
Session and the Order are not entirely clear. On February 27,
2009, after Zimmerman announced her intention to recuse
herself, Boldra asked the NMB to reassign Kite’s case to
another existing Public Law Board, specifically PLB 7254,
which consisted of Boldra, Schollmeyer, and a different
neutral arbitrator, Robert Petersen. Schollmeyer objected to
the reassignment, although his rationale was that the NMB
might not provide funding for the case to be reheard before
PLB 7254. On April 6, 2009, the NMB denied Boldra’s
request for reassignment because its records showed that
Zimmerman had “rendered a decision” in Kite’s case.
Apparently, because Zimmerman had submitted a bill when
she circulated the draft award, the NMB had assumed that she
had made a final determination. Zimmerman apologized to
Boldra and Schollmeyer and offered to straighten out the

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situation with the NMB.7 Shortly thereafter, on April 20,
2009, Zimmerman issued a short order, stating “[a]fter due
consideration, the Board has determined that this matter
should be dismissed without prejudice.”8 At some point

7

On April 6, 2008, Boldra forwarded the NMB denial to Zimmerman.
On the same day, Zimmerman wrote to Bolda and Schollmeyer:
Good afternoon Roger and Jay:
Do you want me to write to Ronald W atkins [Director
of Arbitration Services for the NMB]? This is
apparently not straightened out...
Let me know. Sorry this is so difficult.
Talk to you soon.
Thanks, Jackie.
After Boldra responded affirmatively, Zimmerman then wrote:
I’ll give him a call. This is a problem with the system –
we are supposed to bill when we send drafts to parties,
not when the final awards go out. So that leaves open
the possibility for something like this. I’ll let you know
if I get anywhere.
Thanks for the patience. Talk to you soon.
Jackie.
8

This sentence appeared under the heading “Award,” a point that the
Union repeatedly emphasizes in arguing that the Zimmerman dismissal is
an award. As we discuss infra, the order/award distinction is irrelevant for
purposes of judicial review. W e therefore treat the dismissal without
prejudice as an order, because that is the ordinary procedural description
of such an action.

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thereafter, Zimmerman resigned from the business of being
a neutral arbitrator for the NMB.
On April 30, 2009, the NMB added Kite’s case to PLB
7254 as Case No. 28. Schollmeyer officially filed another
objection, but consented to having Peterson hear the case.
Peterson proceeded to do so. Almost one year later, on April
29, 2010, Peterson issued an award ruling in the Railway’s
favor (Peterson Award). Peterson first held that he was not
bound by Zimmerman’s prior determination in favor of Kite,
because it was merely a “draft” and never “formally
adopted.” Peterson then addressed the merits of Kite’s
discharge and found that “a proper basis exists to hold or
conclude that [Kite] did have a prior drug/alcohol violation in
May 1997.”9 Peterson also rejected the Union’s challenge to
the breathalyser. Consequently, Peterson found that Kite had
tested positive twice in a ten year period and therefore
dismissal was appropriate. He issued an award in favor of the
Railway. Schollmeyer signed the award but testified via
affidavit that he “oppose[d] the result.” He specifically

9

Although Peterson recognized that no “document was placed into
evidence” regarding the May 1997 positive alcohol test, he found multiple
instances in the record where the parties referred to the existence of such
a test. Peterson found these references sufficient to conclude that Kite had
a prior violation. It is unclear, from the record before us whether
Peterson’s conclusion was based in part on arguments and/or evidence that
were not made or presented before Zimmerman, although for purposes of
a motion— where we draw all inferences in favor of the non-moving
party— we assume that it was. W hether or not new materials or arguments
were presented to Peterson is not, in any event, dispositive of the motion
to dismiss, as the U nion objects to affording the Railway a second
opportunity to obtain a favorable ruling after it succeeded by allegedly
corrupt means in compelling the first neutral member of the Board to
resign some two months after her circulation of a draft opinion favoring
Kite.

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asserted that he told Peterson “about Boldra’s threat to
Zimmerman,” and that he “thought it was improper.”
C. Procedural History
On November 4, 2010, the Union filed a Petition for
Review in federal district court. The Petition sought vacatur
of both the Peterson Award on the merits and the Zimmerman
Order of dismissal without prejudice as having been procured
through fraud or corruption by the Railway. It also requested
that the Zimmerman Draft Award in favor of Kite “be
reinstated and enforced.” The Union specifically alleged that
“Boldra’s actions in threatening Referee Zimmerman with
economic ruin in retribution for her decision in the [Draft
Award] and Referee Zimmerman’s subsequent [Order]
dismissing the appeal constitute fraud and corruption within
the ambit of 45 U.S.C. § 153(p) First.” The Union further
alleged that the Railway’s actions in re-listing the case to
reverse an unfavorable decision constitutes “fraud and
corruption.”10
The Railway filed a motion to dismiss the Petition under
both Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
Under 12(b)(1), the Railway argued that the district court
lacked subject matter jurisdiction over the Zimmerman Draft
Award, because the RLA permitted appeal of only final
awards. Because the Zimmerman Draft award was unsigned
and self-described as a “draft” award, the Railway stated, no
appeal could lie under the RLA. The Railway’s motion to
dismiss did not specifically challenge jurisdiction over the

10

The Petition also presented various state law claims against the
Railway. The district court rejected these claims, and the Union has
chosen not to appeal them. W e therefore do not discuss those claims here.

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Zimmerman Order. However, under 12(b)(6), the Railway
argued that the Union had failed to state a claim upon which
relief can be granted, because the alleged facts did not
amount to fraud or corruption. Although the motion is not a
paragon of clarity, we can discern four different arguments
that could be construed to support the Railway’s position.
First, the Railway disputed the assertion that Boldra “bullied
[Zimmerman] into submission to change the outcome.”
Rather, the Railway suggested that Boldra merely “reminded
her” of the importance of the case. Second, the Railway
suggested that the Union waived its RLA claim by not
presenting the fraud or corruption allegation to the NMB or
Peterson until after Peterson had ruled against Kite. Third, the
Railway argued that, whereas the RLA was only meant to
correct “extrinsic fraud,” the alleged fraud here was
“intrinsic” to the proceedings (because the Union knew of it)
and was therefore resolvable by advocacy. Fourth, the
Railway argued that the aggressive statements of the partisan
member of a Board fall short of the high standard required to
prove fraud under the RLA. Despite these varied arguments,
the Railway did not challenge the Union’s claim that, if it
could prove that fraud or corruption occurred due to the
conduct of Boldra during the Zimmerman proceedings, the
Railway’s attempt to re-list the case with Peterson also
constituted fraud or corruption. The Union filed a response
and the Railway filed a reply in timely fashion.
The district court granted the motion to dismiss under
both 12(b)(1) and 12(b)(6). It dismissed the claims relating to
the Zimmerman proceedings under 12(b)(1), finding that it
did “not have jurisdiction over the Zimmerman arbitration
because that arbitration did not produce an award.” Its
rationale was brief. The district court quoted the first half of
the first sentence of 45 U.S.C. § 153(q) First, and concluded

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that federal review was limited to final awards only. It
concluded that, because the Zimmerman Draft Award was not
signed and hence not final, it was not an appealable award
under § 153(q) First. As a result of the dismissal of the
challenge to the Zimmerman arbitration for lack of subject
matter jurisdiction, the only issue remaining was the
challenge to the Peterson arbitration.
The district court then dismissed the claim relating to the
Peterson proceedings under 12(b)(6), finding that the Union’s
alleged facts did not constitute fraud or corruption with
respect to Peterson. The district court did not discuss the
Railway’s arguments, beyond expressly rejecting its waiver
argument on the basis that the Union had alleged that it
presented the corruption objection to Peterson.
The district court began its analysis by recognizing that
the Union’s allegations were “more akin to corruption than
fraud” but was unable to “find cases distinguishing between
the two.” Believing that the case must be analyzed under
fraud doctrine, the district court looked to Pac. & Arctic Ry.
& Nav. Co. v. United Transp. Union (Pacific & Arctic
Railway), 952 F.2d 1144, 1147 (9th Cir. 1991), which stated
that fraud (1) “embraces a situation in which the supposedly
neutral arbitrator exhibits a complete unwillingness to
respond, and indifference, to any evidence or argument in
support of one of the parties’ positions,” id. at 1148, and (2)
must be used “to obtain the award” in question, id. at 1147.
The district court then found that there was no fraud with
respect to Peterson, because—by expressly refuting the
Union’s arguments in his written award—he did not display
a complete unwillingness to respond to the Union’s position.
Moreover, the district court found that the Peterson
arbitration was not implicated by the Railway’s alleged

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misconduct with respect to Zimmerman because that
corruption did not “allow BNSF to obtain an award. The
corruption alleged, at most, led only to Zimmerman’s recusal,
a dismissal without prejudice, and a new arbitration.” On that
basis, the district court dismissed the Union’s Petition for
Review.
II. JURISDICTION
The district court dismissed the challenge to the
Zimmerman Order of dismissal and to the failure of the
Zimmerman Board to issue a final award for lack of
jurisdiction. It dismissed the challenge to the award issued by
the Peterson Board for failing to state a claim upon which
relief may be granted. We first discuss the jurisdictional
determination with regard to the Zimmerman proceedings.
In finding that it lacked subject matter jurisdiction over
the Union’s challenge to the Zimmerman actions, the district
court both misunderstood the Union’s Petition for Review
and misapplied § 153(q) First. The district court ignored the
Union’s challenge to the Zimmerman Order (which dismissed
the initial case without prejudice) and considered solely the
Zimmerman Draft Award, which the Board failed to issue.
However, as the Petition for Review makes clear, the Union
first sought vacatur of the Zimmerman Order on the ground
of fraud or corruption and then sought reinstatement of the
Zimmerman Draft Award. Thus the first question for subject
matter jurisdiction is whether, under § 153(q) First, the
district court is authorized to review the Zimmerman Order

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and, if so, its consequences.11 Alternatively, the question is
whether the district court has the authority to review the
Zimmerman Board’s failure to decide the grievance on the
merits. We conclude, based on the text and underlying
purpose of § 153(q) First, that district courts have subject
matter jurisdiction over NRAB orders, not only awards, as
well as over any failure of the Board to resolve a grievance in
conformity with the terms of the statute.
We begin with the text of the provision, the first sentence
of which reads as follows:
If any employee or group of employees, or
any carrier, is aggrieved by the failure of any
division of the Adjustment Board to make an
award in a dispute referred to it, or is
aggrieved by any of the terms of an award or
by the failure of the division to include certain
terms in such award, then such employee or
group of employees or carrier may file in . . .
United States district court . . . a petition for
review of the division’s order.
45 U.S.C. § 153(q) First (emphasis added). As applied here,
the review provision imposes four jurisdictional
requirements: there must be (1) an employee, (2) a failure by
the NRAB (or a Public Law Board) to make an award in a

11

Of course, the district court must also have the authority to provide
a remedy to the Union, a requirement that is met here. Section 153(q) First
allows the district court “to affirm the order of the division, or to set it
aside, in whole or in part, or it may remand the proceedings to the division
for such further action as it may direct.” (emphasis added). W e discuss the
remedy issue in greater depth in Section III.C infra.

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dispute referred to it, (3) that failure must aggrieve the
employee, (4) the employee must petition for review of the
relevant order. All four requirements are met here. First, Kite
is an employee of Railway. Second, Zimmerman dismissed
Kite’s case without prejudice, thus failing to make an award
in the dispute. Third, Kite was aggrieved by the dismissal
because the draft award was favorable—i.e., he was to be
reinstated but for the dismissal. Fourth, the Union (on behalf
of Kite) filed a Petition for Review seeking vacatur of the
Zimmerman Order. Thus, it is clear that the Union’s Petition
for Review of the Zimmerman Order falls squarely within the
subject matter set forth in § 153(q) First.
Our conclusion is underscored by the purpose of the 1966
amendments that created § 153(q) First. As explained supra,
the amendments were specifically intended to allow
aggrieved employees to challenge NRAB determinations in
federal court. To be sure, the grounds for review were limited
to specific claims, including fraud or corruption. Here,
however, it is uncontested as a jurisdictional matter that the
Union’s claim is properly asserted under one of the specified
grounds. Thus, to deny the Union’s appeal on behalf of
employee Kite under § 153(q) would harm the very person
specifically meant to benefit from the inclusion of § 153(q) in
the RLA.
The Railway presents two arguments in response, both of
which are unavailing. First, it contends that the Union’s
challenge to the Zimmerman Order and the Zimmerman
Board’s failure to issue an award is newly presented on
appeal. The Railway argues that, in the proceedings below,
the Union sought only to have the Zimmerman Draft Award
enforced. In support of its argument, the Railway observes
that most of the Union’s briefing before the district court was

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dedicated to arguing that the Zimmerman Draft Award was
a final award. The Railway also observes that the district
court focused only on the Zimmerman Draft Award in its
discussion.
The Railway commits the same error as the district court
below by ignoring the Union’s Petition for Review. The
Petition for Review clearly specifies in multiple places that
the Union sought vacatur of the Zimmerman Order of
dismissal without prejudice on the ground of fraud or
corruption. Moreover, in its Response to the Motion to
Dismiss, the Union explained at length that its allegations are
directed at both the Zimmerman Order and the Zimmerman
Draft Award, as the dismissal order is what precluded the
draft award from being given effect. It is true that the district
court did not rule on the Zimmerman Order, but that was
because it apparently misunderstood the nature of the review
sought by the Union. Because the Petition itself requires the
conclusion that the Union challenged the Zimmerman Order
in the proceedings below,12 we reject the Railway’s waiver
argument. In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir.
1989) (“[I]ntermediate appellate courts may consider any
issue supported by the record, even if the [trial] court did not
consider it.”).

12

It is irrelevant that the Union argued in its briefing below that the
Zimmerman Draft Award was a final award. Many parties in litigation
present arguments in the alternative. Here, in the event that our court
might adopt an interpretation of § 153(q) First that judicial review was
limited to final awards, the Union presented arguments in support of a
broad reading of what constitutes a “final award” under the RLA. The
broad interpretation became the primary topic of dispute in the briefing
below, but it did not imply that the Union had forsaken its claim expressly
set forth in its Petition that the Zimmerman Order should be set aside for
fraud or corruption.

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Second, the Railway contends that the Zimmerman Order
is not reviewable because it is not a final award. Citing the
text of § 153(q) First, the Railway argues that only final
awards are reviewable. Because the Zimmerman Order was
not a final award, the Railway argues that it is not reviewable.
We address and reject this flawed reading of § 153(q)
First supra, as both contrary to the plain meaning and
legislative purpose of the provision. The only response
discernible from the Railway’s briefing is that the phrase “the
division’s order” is a “clear reference to the documentation
memorializing the award referenced in the first portion of the
sentence.” This gets statutory interpretation backwards.
“[W]here Congress includes particular language in one
section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.”
Russello v. United States, 464 U.S. 16, 23 (1983). By
choosing the word “order” when it easily could have repeated
“award,” Congress is presumed to have intended a broader
category for judicial review than simply awards. Indeed, only
this broader reading can give effect to the entirety of
§ 153(q), which specifically allows aggrieved employees to
seek review when the NRAB “fail[s] . . . to make an award in
a dispute referred to it.” If review were limited to awards,
these words would be superfluous, thus contradicting yet
another canon of statutory interpretation. Boise Cascade
Corp. v. U.S. E.P.A., 942 F.2d 1427, 1432 (9th Cir. 1991)
(“Under accepted canons of statutory interpretation, we must
interpret statutes as a whole, giving effect to each word and
making every effort not to interpret a provision in a manner
that renders other provisions of the same statute inconsistent,
meaningless or superfluous.”). These arguments affirm our
earlier conclusion that district courts may review orders under

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§ 153(q) First, not only awards. Moreover, because the order
here constitutes a “failure . . . to make an award in a dispute
referred to it,” the order is reviewable for that reason as well.
At oral argument, the Railway attempted to reframe its
argument as follows: although the Zimmerman Order is an
“order,” it is not the “kind of order” for which Congress
created judicial review under § 153(q) First, because it was
not approved by a majority of the Board.13 As a preliminary
matter, we doubt the applicability of this argument to a
recusal order, which is ordinarily issued by one judge.
Moreover, the Railway provides no case to support its reading
of § 153(q) First, and all the citations provided in its brief are
specific to the context of awards. In any event, the Railway’s
reframed argument is contradicted by the text, structure, and
legislative purpose of 45 U.S.C. § 153 First. The statute is
undeniably silent with respect to whether an order requires
majority approval. While we ordinarily cannot infer much
from silence, we are assisted here by the fact that the statute
is not silent with respect to whether an award requires
majority approval; under § 153(n) First, a majority vote of the
Board is required to issue an award. Because Congress was
capable of and chose not to include the majority-vote
requirement in the statutory provision regarding orders,
§ 153(o) First, ordinary rules of statutory interpretation
dictate that we interpret the text as not imposing such a
requirement regarding orders. See Russello, 464 U.S. at 23.
Moreover, when § 153(n) First is read in conjunction with
§ 153(q) First, it is apparent that Congress intended that some

13

The Railway also asserted that a reviewable order must fully dispose
of all the issues in the case. That requirement is clearly met here, as the
Zimmerman Order dismissed the case in its entirety, thus disposing of all
of the issues.

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orders lacking majority approval be subject to judicial review.
Specifically, although under § 153(n) First, two members
must approve an award that resolves any matters finally,
Congress expressly provided, under § 153(q) First, for review
when the Board has failed to make an award in a dispute
referred to it. The logical consequence of these two
provisions is that Congress allowed for review of a decision
that necessarily results from failure to make an award, i.e.,
that necessarily results from a lack of majority agreement
upon a question or a failure of a majority to resolve a
question. Thus, in the subset of cases in which the failure to
make an award is reflected in an order—e.g., a dismissal
order, as we have here—that order, lacking majority
approval, would be reviewable. To hold otherwise would
violate the cardinal rule of statutory interpretation that courts
must “make every effort” to give effect to the entirety of a
statute. See Boise Cascade Corp., 942 F.2d at 1432. Finally,
only this conclusion is consistent with the purpose of the
RLA scheme overall. As explained supra, Congress imposed
mandatory arbitration by the NRAB as the exclusive and
comprehensive means for employees to resolve grievances
but allowed for judicial review to protect the reliability of
those arbitral determinations and to ensure that covered
grievances were resolved by that Board. If either side, labor
or management, can use threats to frustrate the process and
force the recusal of a neutral arbitrator, precisely the concerns
for which Congress created judicial review are raised. We
therefore reject the Railway’s reframed second objection and
hold that the district court has jurisdiction to review the
Union’s challenge to the Zimmerman Order, the failure to
issue the Draft Award, and indeed to its failure to resolve the
grievance assigned to the Zimmerman Board.

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As to the Peterson Award, none of the above objections
applies, and the district court correctly found that it had
jurisdiction over that Award. The Railway’s objection to the
Union’s challenge to that Award is based solely on 12(b)(6),
a failure to state a claim of corruption. We turn now to that
issue.
III. CLAIM FOR RELIEF
A. Waiver
As a preliminary matter, we address and dispose of the
Railway’s waiver argument. Citing a Seventh Circuit case,
Pokuta v. Trans World Airlines, Inc., 191 F.3d 834, 840 (7th
Cir. 1999), the Railway urges that we apply the general
principle that failure to raise an allegation of bias by an
arbitrator until after entry of the final award constitutes
waiver of the claim to § 153(q) of the Railway Labor Act.
Applying this rule, the Railway argues that the Union failed
to raise its objection regarding corruption either to the NMB
or Peterson. Specifically, the Railway contends that, while
Schollmeyer did write to the NMB objecting to the
reassignment, he did so on the basis that the NMB might not
fund the second Board. Therefore, the Railway argues,
because the Union failed to raise an objection regarding
corruption, it has waived the claim.
This case does not require us to decide whether to import
the waiver-of-arbitration-bias rule into the Act. Rather, we
agree with the district court that, at the motion to dismiss
stage, the Union properly alleged that it raised the corruption
objection to Peterson. United Transp. Union v. BNSF Ry. Co.,
No. 10-CV-05808, 2011 WL 3055226, at *5 (W.D. Wash.
July 25, 2011) (“For the purposes of this Motion, the Court

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must assume UTU made the corruption argument to Peterson
and that Peterson ignored it.”) Although the Railway is
correct that Schollmeyer’s objection to the NMB was not
based on any allegation of corruption, it ignores his
declaration, where he stated the following:
I did sign the award which came out of PLB
7254, but my reasons for doing so are not
accurately portrayed at the brief of the BNSF
at Page 11, lines 4–5. My signature does not
equate with a concurrence in the result. It is
meant only to signify that I was present and
participated in the hearing and the discussion.
I oppose the result. I told Boldra and Peterson
specifically about Mr. Boldra’s threat to
Zimmerman in February of 2009, at executive
session, about the recusal and the dismissal,
and how I thought it was improper.
Obviously, those arguments weren’t
successful with the majority of PLB 7254.
Boldra contests this assertion in his declaration, but at the
motion to dismiss stage, we accept the facts as they are
alleged by the plaintiff. Therefore, even under the Railway’s
preferred rule (which we neither adopt nor reject), we find
that the Union did not waive its corruption claim.
B. Corruption
When deciding whether a pleading states a plausible
claim for relief, we are required by Rule 12(b)(6) to consider
a complaint’s factual allegations “together with all reasonable
inferences” from those allegations. Cafasso, U.S. ex. re. v.
General Dynamics C4 Systems, Inc., 637 F 3d 1047, 1054

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(9th Cir. 2011). Applying that standard, we conclude that the
Union properly stated a claim upon which relief may be
granted under § 153(q) First of the Act. It is important, as a
preliminary matter, to distinguish between the Zimmerman
Order and the Peterson Award, both of which can, if the
Union can prove its allegations, be set aside as the product of
corruption, but for different (although related) reasons. With
regard to the Zimmerman Order, the district court did not
address whether the Union properly alleged corruption
because it had already granted dismissal under 12(b)(1).
Nevertheless, the Union’s allegations present a plausible
claim for setting aside the Zimmerman Order. If Boldra, as a
high-ranking Railway official and as the Railway’s
representative on the Board, made such a statement and
intended it as an economic threat against Zimmerman if she
did not change the outcome of the Zimmerman Order, then
Boldra committed an act of attempted extortion and impaired
the integrity of the arbitral process itself. Because such
conduct by any member of a Board would justify setting aside
the Order, we conclude that the Union properly stated a
plausible claim for which relief could be granted with regard
to both the Zimmerman Order and the Board’s failure to
decide the dispute.
If the Union’s allegations are true, the Peterson Award
can also be set aside as the product of corruption. The Union
alleges that Peterson was made aware that the Railway had
threatened the prior neutral arbitrator with economic ruin
when she circulated her tentative ruling against the Railway.
It is therefore plausible, under the Union’s allegations, that
Peterson’s decision reflected precisely the same fear
regarding the Railway’s threat as did Zimmerman’s when she
decided to dismiss the proceeding after being told that she
would be unable to work for a Class One railroad again if she

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issued decisions like the one in this case. Accordingly, we
conclude that the Union has properly stated a claim upon
which relief can be granted with regard to the Peterson
Award.
1. Zimmerman Order
In order to assess the Union’s claim, we must first define
“corruption” under the RLA.14 The legislative history behind
the 1966 amendments is explicit that Congress intended that
review for corruption under the RLA would mirror review for
corruption in arbitral decisions generally. H. Rep. 89-1114, at
3, 16. Because the Federal Arbitration Act (FAA), initially
enacted in 1925, allows vacatur “where the award was
procured by corruption, fraud, or undue means,” 9 U.S.C.
§ 10(a)(1), one might expect to find reasonably developed
federal doctrine on what constitutes “corruption” in cases
under the FAA. In fact, while many FAA cases discuss
“fraud” or “undue means,” no case by the Supreme Court or
a court of appeals discusses the “corruption” prong of arbitral
decisions.

14

Because we analyze the Union’s claim as one of corruption, we do
not respond in detail to the district court’s discussion applying the fraud
test, as set forth in Pacific & Arctic Railway, 952 F.2d 1144 (9th Cir.
1991). Because the Railway’s brief on appeal mirrored the district court’s
reliance on fraud, we also do not respond to its contentions.
This should not, however, be read as an endorsement of the district
court’s reasoning in applying the fraud doctrine. Indeed, the district
court’s suggestion that Peterson could not have committed fraud because
he mentioned the Union’s arguments before dismissing them is plainly
incorrect. Mentioning a party’s arguments (and then ruling against the
party) does not show a lack of fraud or corruption.

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Despite the absence of FAA doctrine specifically defining
what constitutes corruption, we are not left without guidance.
As explained in Section I.A, Congress created the NRAB
scheme to ensure an expeditious resolution to minor disputes
in the railroad industry. Accordingly, it intended that NRAB
decisions be accorded a degree of finality and thus limited
judicial review to the narrow grounds set forth in 45 U.S.C.
153(q) First. Being mindful of Congress’s interest in the
finality in the NRAB scheme, we must ensure that the
definition of corruption under the RLA encompasses only
serious misconduct—i.e., conduct of the sort that would
justify vacatur of an NRAB decision. See Pacific & Arctic
Railway, 952 F.2d 1144, 1148 (9th Cir. 1991) (adopting a
more rigorous test for “fraud” under the RLA than the test for
“fraud” under common law because of the “strong federal
policy favoring finality”); Dogherra v. Safeway Stores, Inc.,
679 F.2d 1293, 1297 (9th Cir. 1982) (“[I]n order to protect
the finality of arbitration decisions, courts must be slow to
vacate an arbitral award . . . .”); see also Toyota of Berkeley
v. Auto. Salesman’s Union, Local 1095, United Food &
Commercial Workers Union, 834 F.2d 751, 755 (9th Cir.
1987) (stating that the “appearance of impropriety, standing
alone, is insufficient to” vacate an arbitral proceeding),
amended, 856 F.2d 1572 (9th Cir. 1988).15
We therefore hold that corruption under the RLA
encompasses three categories of conduct. First, corruption

15

Courts have also recognized that arbitration omits many of the
niceties of federal courts, and “whatever indignation a reviewing court
may experience in examining the record, it must resist the temptation to
condemn imperfect proceedings without a sound statutory basis for doing
so.” Forsythe In’l, S.A. v. Gibbs Oil Co. of Texas, 915 F.2d 1017, 1022
(5th Cir. 1990).

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includes acts that threaten the integrity of arbitral proceedings
that are either quasi-criminal or criminal in nature, including,
but not limited to, acts of violence or threats thereof. Second,
corruption encompasses acts of bribery and extortion16 that
threaten the integrity of arbitral proceedings, the latter of
which includes, but is not limited to, threats of economic
injury.17 Third, corruption extends to similarly egregious
abuses of office that threaten the integrity of arbitral
proceedings. Additionally, as with fraud under the RLA,
corruption must be proven by clear and convincing evidence.
Dogherra v. Safeway Stores, Inc., 679 F.2d 1293, 1297 (9th
Cir. 1982). By limiting corruption to the categories set forth
above and by adopting a heightened evidentiary standard, we
ensure that NRAB determinations maintain the presumption
of finality that Congress intended.
We turn now to the facts of the case. If the Union’s
allegations are taken in the light most favorable to it as the
non-moving party, we conclude that Boldra’s statement to the
neutral member, upon reviewing her proposed decision, that
“[i]f you are going to issue these kinds of opinions, you will
never work for a Class One railroad again,” can, if proven in
subsequent proceedings, plausibly bear the Union’s
interpretation as a threat of economic retaliation that threatens
the integrity of arbitral proceedings. We explained supra that

16

W e also agree with the argument that “extortion” is a species of
“bribery.” Cf. Wilkie v. Robbins, 551 U.S. 537, 564 n.12 (2007) (“[T]he
Hobbs Act expanded the scope of common law extortion to include
private perpetrators while retaining the core idea of extortion as a species
of corruption, akin to bribery.”).
17

An act of attempted bribery or extortion, so long as it threatens the
integrity of arbitral proceedings, would also constitute corruption under
the RLA.

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a threat of economic injury that threatens the integrity of
arbitral proceedings is a form of extortion, which is a
category of corruption under the RLA. Thus, if we take the
Union’s allegations as true and accept the meaning of
Boldra’s statement that the Union imputes to it, as we must at
this stage of the proceedings, Boldra committed an act of
attempted extortion, and his conduct would therefore
constitute corruption under the RLA.
The Union’s understanding of Boldra’s statement is not,
of course, the only possible interpretation. Under other
interpretations, the statement might not support a finding of
corruption, and we do not, by this opinion, prejudge whether
Boldra’s conduct actually constituted corruption under the
RLA. The Railway, for example suggests a very different
interpretation of Boldra’s alleged statement. It claims that, at
the executive session, Zimmerman said that her notes
reflected that Boldra had previously agreed that reinstating
employee Kite would be an acceptable result. Boldra swore
by declaration that he told Zimmerman that her notes were
incorrect and that he had never so agreed. He further claims
that he made the alleged statement in order to remind
Zimmerman of the importance of the case to Railway because
it involved what the Railway understood to be an employee’s
second-time alcohol violation. Under the Railway’s
interpretation, Boldra likely meant to convey his belief that
Zimmerman’s draft award was so erroneous, or apparently
biased, that it would destroy Zimmerman’s credibility in the
labor arbitration industry. Such a prediction, though
potentially inappropriate in a professional setting, may not be
tantamount to extortion.
As with the Union’s interpretation, this is a possible
construction of Boldra’s statement, but a fact-finder would

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have to determine whether, in the context of the particular
case before it, the statement warranted a finding of extortion.
This is true with respect to the Union’s interpretation, the
Railway’s, and other possible interpretations as well. The
question of the meaning of Boldra’s statement cannot be
resolved at the stage of a motion to dismiss, and we leave to
the fact-finder the ultimate determination of what Boldra
actually said and whether any statement he may have made
constituted corruption.
2. Peterson Award
As explained supra, the Union alleges that it
communicated Boldra’s misconduct in the first arbitration to
Peterson. We can therefore infer that Peterson was fully
aware that, when a neutral arbitrator had proposed ruling
against the Railway, the Railway’s representative had
threatened the arbitrator with never working again for a Class
One Railroad. It is therefore plausible, as the Union alleges,
that Peterson himself wanted to work for a Class One
Railroad again, and might have been concerned that he, like
Zimmerman, would be threatened if he chose to rule against
the Railway. Based on these allegations, Peterson’s issuance
of the Award in favor of the Railway could conceivably be
the result of corrupt action, for reasons similar to those
related to the Zimmerman Order. Of course, the Union would
have to substantiate its allegations by clear and convincing
evidence at the summary judgment phase, or perhaps at a
trial. Because we deal only with this case at the motion to
dismiss stage, we need conclude only that the Union’s
allegations state a plausible claim upon which relief can be
granted. They do so here.

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Even if the Union were unable to prove that Peterson
acted under an implicit threat in issuing an award in favor of
the Railway, § 153(q) First nevertheless allows for the setting
aside of the Peterson Award as the tainted product of Boldra’s
alleged corruption, if such corruption (as defined herein) is
proved by the Union by clear and convincing evidence.
Section 153(q) First states that the district court may “set
aside” an order “for fraud or corruption by a member of the
division making the order.” Under the plain terms of the
statute, the Peterson Award can be set aside because Boldra
was a member of the Peterson Board and, under the Union’s
allegations, he acted corruptly. Moreover, under those
allegations, the Peterson Board would not have existed but for
corruption by Boldra. That is, had Boldra not threatened
Zimmerman, who then recused herself, there would have
been no Peterson proceedings and hence no Peterson Award.
Furthermore, the Union’s allegations state that Boldra’s
corruption had a direct causal relationship to the Peterson
Award. The Union contends that the Railway’s intended
purpose in leveling the economic threat against Zimmerman
was, inter alia, to re-list the case and acquire a new hearing in
which it might (and did) prevail. Indeed, because the
Railway’s deficiency in the Zimmerman proceedings was
apparently a failure to include evidence of the discharged
employee’s prior violation, a second hearing offered Boldra
an opportunity to enhance his arguments before a new neutral
arbitrator. Thus, under the allegations set forth in the Union’s
Petition for Review, the Peterson Award was both the
intended and actual product of Boldra’s alleged corruption.
Accordingly, under § 153(q) First, the Peterson Award can be
“set aside . . . for corruption” by Boldra, the Railway’s
representative in the proceeding and a necessary voting

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member in order to achieve a majority award in favor of the
Railway.18
The Railway asserts that the Peterson Award should
instead be viewed as curing the alleged corruption that
occurred during the Zimmerman proceedings. It contends
that, because no threat was made during the Peterson
proceedings, Peterson’s decision to issue the award in the
Railway’s favor was based on his independent, neutral
judgment. The Peterson Award, it argues, is therefore the
outcome that the Railway would have acquired had it been
given a new hearing without a corrupt arbitrator. The Railway
contends that the Union may not be happy with the Peterson
Award, but the harm from the alleged corruption has been
cured by the issuance of that Award.
This argument fails on several accounts. First, as a
preliminary matter, the Union’s allegations contradict the
premise that, because no explicit threat was made during the
Peterson hearing, no threat could have affected the outcome
of those proceedings. The Union alleges that, because
Peterson was fully aware of the threat made during the
Zimmerman proceedings, the threat actually carried over into
the Peterson proceedings. Thus, at the motion to dismiss

18

The district court believed that the Peterson Award could not be set
aside because the alleged corruption had not been used “to obtain the
award.” Pacific & Arctic Railway, 952 F.2d 1144, 1151 (9th Cir. 1991).
In fact, as explained supra in text, under the allegations of the complaint,
that is exactly what the Railway was seeking to accomplish with its
economic threat to Zimmerman: acquire a new hearing in which it could
prevail. It is true that the Railway could not guarantee itself an award in
its favor. However, there is no guarantee requirement in Pacific & Arctic
Railway. If the Railway used corruption “to obtain the [Peterson A]ward,”
it can be set aside.

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stage, drawing all inferences in favor of the non-moving
party, we cannot accept the Railway’s argument. Second, and
more fundamental, the Railway’s argument is properly one of
remedy: that the remedy for the alleged corruption at the
Zimmerman proceedings would have been to remand for a
new hearing before a different neutral arbitrator and that such
a hearing effectively occurred here in the form of the Peterson
proceedings. As we discuss further infra, we cannot
determine the appropriate remedy at this stage of the
proceedings, and thus the Railway’s argument is premature.
Third, even if an untainted hearing were the appropriate
remedy, the Peterson proceedings fail to meet this description
because Boldra, the Railway representative who allegedly
made the threat of economic retribution, was a member of the
Board that issued the Peterson Award and a necessary
signatory to it. Even if the Peterson Award were free of
Zimmerman’s alleged taint, it is not free of Boldra’s. Thus, as
alleged, the Peterson Board and the Peterson Award were
tainted. These and other factual matters may be litigated at
the summary judgment or trial stage. We cannot conduct a
factual inquiry here. At this stage, however, on the basis of
the Union’s allegations, we reject the Railway’s curing
argument and hold that, in asking the district court to set
aside the Peterson Award, the Union stated a claim upon
which relief can be granted.
C. Remedy
Because we hold that the district court erred in dismissing
the Petition for Review on 12(b)(1) and 12(b)(6) grounds, we
remand the case to that court to allow the Union to attempt to
prove its allegations of corruption by clear and convincing
evidence. If the Union prevails on the merits and the district
court sets aside the Zimmerman Order and/or the Peterson

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Award due to corruption, it would then have to consider what
remedy might be appropriate. The RLA broadly empowers
the district court to provide a remedy that it deems
appropriate. 45 U.S.C. § 153(q) First (allowing the district
court “to affirm the order of the division, or to set it aside, in
whole or in part, or it may remand the proceedings to the
division for such further action as it may direct” (emphasis
added)). Under this broad power, the district court has a
number of alternatives. It may remand the case back to the
Board for a new untainted hearing; it may remand for a new
hearing subject to various procedural or substantive
limitations; it may remand allowing the Board to make its
own determination as to how to proceed (including what
evidence may be introduced or shall be excluded at any
further hearing); or it may direct such further action by the
Board as the court deems appropriate. In its Petition for
Review, the Union asked for reinstatement of the Zimmerman
Draft Award. Although the district court is empowered to
provide for such a remedy or to allow the Board to decide
whether to do so, we cannot determine at this stage of the
proceedings that this would be an appropriate remedy in this
case. Nor is it our function to make such a determination
now. Any such decision must be based on the facts, as
established at summary judgment or proven at trial.
IV. CONCLUSION
The district court erred with respect to jurisdiction,
because it failed properly to apply 45 U.S.C. § 153(q), a
provision enacted to allow aggrieved employees to seek
judicial review of NRAB determinations in federal court. It
also erred with respect to the merits, because it evaluated the
Railway’s conduct as fraud—not corruption. More important,
because it failed to draw inferences in the light most

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favorable to the Union, it failed to recognize that, under the
applicable pleading standards, Boldra’s alleged statement can
reasonably bear the Union’s interpretation of it as a threat,
and thus Boldra’s conduct could have constituted corruption
under the RLA. While the final determination regarding
Boldra’s statement must be left to a fact-finder, the Union’s
construction is plausible and hence sufficient to survive a
motion to dismiss.
The RLA created a unique machinery for the disposition
of minor disputes in the railway industry. Much deference is
given to the determinations of the NRAB on the merits of
minor disputes, as Congress deemed finality to be an
important aspect of the arbitral scheme. However, Congress
also created a narrow role for judicial review in order to allow
aggrieved employees to vindicate their rights if the NRAB
decision was unreliable. In doing so, Congress established
grounds for review that would ensure the integrity of the
NRAB process. The district court failed to appreciate that the
Railway’s alleged conduct, if proven to constitute an attempt
at extortion, was not merely a threat to Zimmerman but to the
integrity of the arbitral process upon which the RLA relies.
We reverse and remand to the district court, so that it may
determine the appropriate procedure for allowing the Union
to attempt to prove Kite’s claim.
REVERSED AND REMANDED.

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