Barton v. Transp. Communications Intern. Union, No. 97-74629.

• Court: United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
• Writing for the Court: Rosen
• Citation: 25 F.Supp.2d 790
• Parties: David M. BARTON Plaintiff, v. TRANSPORTATION COMMUNICATIONS INTERNATIONAL UNION (TCU), an affiliate of AFL-CIO; and Consolidated Rail Corporation, Defendants.
• Docket Number: No. 97-74629.
• Decision Date: 28 October 1998

25 F.Supp.2d 790 David M. BARTON Plaintiff,
v.
TRANSPORTATION COMMUNICATIONS INTERNATIONAL UNION (TCU), an affiliate of AFL-CIO; and Consolidated Rail Corporation, Defendants. No. 97-74629. United States District Court, E.D. Michigan, Southern Division. October 28, 1998.

Page 791

COPYRIGHT MATERIAL OMITTED

Page 792

Frank G. Becker, Southfield, MI, for Plaintiff.

Robert C. Ludolph, Detroit, MI, Michtell M., Kraus, Esq., Rockville, MD, Renate Klass, Southfield, MI, for Defendants.

OPINION AND ORDER REGARDING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

ROSEN, District Judge.

I. Introduction

This case brought pursuant to the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et seq., is presently before the Court on separate Motions for Summary Judgment filed by Defendants Transportation Communications International Union ("TCU") and Consolidated Rail Corporation ("Conrail").¹ The Court held a hearing on Defendants' Motions on October 15, 1998. Having heard the oral arguments of counsel and having reviewed and considered the briefs and supporting documents submitted by the parties, the Court is now prepared to rule on Defendants' Motions. This Opinion and Order sets forth that ruling.

II. Factual Background

The factual background of this case is largely undisputed. Prior to his termination in 1995, Plaintiff was employed by Conrail as an auto inspector clerk at the Wayne Auto Terminal in Wayne, Michigan.² At all times relevant to the present dispute Plaintiff was a member of TCU, which was party to a collective bargaining agreement ("CBA") with Conrail that covered Plaintiff's employment. As a Conrail employee within the clerical craft and class at the Wayne Auto Yard, Plaintiff was represented by TCU System Board 86 and TCU District 464, respectively.

A. Collective Bargaining Agreement

CBA Rules 42 and 43 set forth the procedures for investigating charges against employees and appealing disciplinary actions. Because the validity of Plaintiff's claims in this action turn largely on whether Defendants complied with the procedures set forth in Rules 42 and 43, the Court provides the relevant text of the rules below:

RULE 42 INVESTIGATION

(a) An employee who has been in the service more than sixty (60) calendar days or whose application has been approved shall

Page 793

not be disciplined or dismissed without a fair and impartial investigation. He may, however, be held out of service pending such investigation only if his retention in service would be detrimental to himself, another person, or the Company. The investigation shall begin within ten (10) calender days of the date when charged with the offense or held from service and completed as soon as possible. A decision will be rendered within fifteen (15) calendar days in writing, after completion of the investigation, copy to Local Chairman.

(b) An employee charged with an offense shall be given written notice in advance of the investigation of the exact offense involved with copy to Local Chairman. No charge shall be made that involves any matter of which the Company has had knowledge thirty (30) calendar days or more

* * * * * *

(d) At investigations an employee, if he desires to be represented may only be accompanied and represented by one or more duly accredited representatives.

* * * * * *

(f) If discipline is to be imposed following investigation, the employee to be disciplined shall be given written notice thereof at least fifteen (15) calendar days prior to the date on which the discipline is to become effective, except that in cases involving dismissal such dismissal may be made effective at any time after decision without advance notice. His duly accredited representative shall be given a copy of the notice of discipline.

(g) Unless the time limits provided in this Rule 42 are extended by agreement, failure to comply therewith shall render the charges and/or discipline null and void.

RULE 43 APPEALS

(a) Appeal from discipline must be made in writing by the employee or on his behalf by his duly accredited representative to the Manager Labor Relations (or other designated officer) within fifteen (15) calendar days after receipt of written notice of discipline.

* * * * * *

(b) A hearing on appeal, if requested, shall be granted within ten (10) calendar days of receipt of appeal. On appeal, an employee may only be accompanied by one (1) or more duly accredited union representative.

(c) After the appeal has been acted upon by the Manager Labor Relations, the employee and his duly accredited representative shall be advised, in writing, of his decision within fifteen (15) calendar days of receipt of appeal or date of hearing on appeal, whichever is applicable.

* * * * * *

(d) If further appeal is taken, it must be filed with the Senior Director-Labor Relations and a copy furnished the official whose decision is appealed, within fifteen (15) calendar days after the date of decision. A hearing on appeal, if requested, shall be granted within ten (10) calendar days of receipt of appeal. Decision on appeal shall be rendered within (15) calendar days of receipt of appeal or date of hearing, whichever is applicable.

(e) An appeal denied in accordance with paragraph (d) shall be considered closed unless, within one (1) year from the date of the decision of the Senior Director-Labor Relations, proceedings are instituted before the National Railroad Adjustment Board or such other Board as may be legally substituted therefor under the Railway Labor Act.

B. Plaintiff's Dismissal

On June 5, 1995, Conrail removed Plaintiff from service prior to the commencement of his shift on charges relating to the alleged theft of a Conrail pager.³ In a Notice of

Page 794

Investigation dated June 9, 1995, Conrail informed Plaintiff that a disciplinary hearing was scheduled for June 15, 1995.⁴ At the request of TCU District 464 Chairman Leroy Krempec, Conrail first postponed the disciplinary hearing until June 22, and then later to June 28, 1995. Barton met with both Krempec and TCU District General Secretary/Treasurer Stephanie Reavis "a couple times" prior to the investigatory hearing. [Barton Dep. p. 60].

As authorized by CBA Rule 42, Conrail held Plaintiff's investigatory hearing on June 28, 1995. Barton attended the hearing along with his union representatives Krempec and Reavis. At the outset, Krempec lodged an objection to the proceedings and requested that Conrail immediately drop all charges and return Barton to service on the grounds that Conrail was in violation of CBA Rule 42(a), which required the employer to hold all investigatory hearings within ten days of an employee being held from service.⁵ A Conrail employee serving as the hearing officer noted the objection but proceeded with the hearing. The hearing officer called numerous witnesses, including Plaintiff's immediate supervisor Milbourne Taylor and co-workers Wesley Czaplicki and Patricia Murphy, to establish that Plaintiff had stolen the pager and given it to his son. Krempec cross-examined each witness and Plaintiff also cross-examined Taylor and Czaplicki. In addition, Barton called his son and a friend of his son to testify. At the close of the hearing, Plaintiff was given the opportunity to make a final statement, in which he professed his innocence and claimed that he was being railroaded by Taylor and Czaplicki. Krempec also made a final statement, in which he reasserted his procedural objection and argued that Conrail had failed to demonstrate that Plaintiff had stolen the pager.⁶

On July 10, 1995, Conrail timely notified Plaintiff by certified mail that, based upon its investigation, the company was dismissing Barton in all capacities. Pursuant to CBA Rule 43(a), Krempec filed a timely appeal of the dismissal by letter, faxed on July 17, 1995, to Dale Elston, Conrail's Manager of Labor Relations. Krempec asserted three grounds for appeal: (1) Barton was not guilty; (2) Conrail failed to hold the investigatory hearing within ten days as required by CBA Rule 42(a); and (3) Conrail failed to send Krempec a copy of the original Notice of Investigation as required by CBA Rule 42(b). On August 8, 1995, Elston issued a decision upholding Plaintiff's dismissal which was further appealed on August 23 to L.J. Finnegan, Conrail's Senior Director of Labor Relations, in accordance with CBA Rule 43(d). On November 1, 1995, Finnegan rejected the August 23 appeal by letter to TCU System Board 86 General Chairman Anthony P. Santoro, Jr. At this point in time, System Board 86 Vice General Chairman Victor Goffredo assumed control of Barton's appeal.⁷

Page 795

On May 29, 1996, Chairman Santoro informed Plaintiff by letter that his case was docketed for arbitration before Special Board of Adjustment ("SBA") No. 1083 on June 13, 1996 at Conrail's headquarters in Philadelphia. The letter instructed Barton to contact Goffredo if he wished to attend the arbitration hearing. In response to Santoro's letter, a fax under David Barton's name was sent to Goffredo on April 25, 1996. The fax outlined issues to be raised at arbitration, but importantly contained no arguments or information that had not previously been raised at the investigatory hearing or on appeal.

As authorized by CBA Rule 43(e), SBA No. 1083 was established pursuant to a December 22, 1995 agreement between Conrail and System Board 86. The agreement called for a three member arbitration board consisting of one member selected by Conrail (A.J.Licate), one member selected by TCU (Goffredo), and a neutral member selected jointly by Conrail and TCU to serve as SBA Chairman (James M. Harkless).

The arbitration hearing was held as scheduled on June 13, 1996, at which Barton was provided and exercised an opportunity to speak. In an award dated March 11, 1997, Arbitrators Harkless and Licate upheld the discharge on the grounds that on the facts presented it was reasonable for Conrail to conclude that Barton intentionally took the pager and gave it...