Bhd. of Maint. of Way Emps. Division/Ibt v. Norfolk S. Ry. Co.

• Decision Date: 11 March 2014
• Docket Number: No. 12–3415.,12–3415.
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES DIVISION/IBT, Plaintiff–Appellant, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant–Appellee.

745 F.3d 808

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES DIVISION/IBT, Plaintiff–Appellant,

v.NORFOLK SOUTHERN RAILWAY COMPANY, Defendant–Appellee.

No. 12–3415.

United States Court of Appeals,Seventh Circuit.

Argued Oct. 31, 2013.

Decided March 11, 2014.

Harry W. Zanville, San Diego, CA, for Plaintiff–Appellant.

James S. Whitehead, Sidley Austin LLP, Chicago, IL, for Defendant–Appellee.

Before BAUER, MANION, and ROVNER, Circuit Judges.

BAUER, Circuit Judge.

The Brotherhood of Maintenance Way Employees (“the Brotherhood”) filed for a permanent injunction to ban Norfolk Southern Railway Company's (“Norfolk”) use of accident reconstruction reports in employee disciplinary investigations unless Norfolk adheres to additional pre-hearing procedures. The United States District Court for the Northern District of Illinois found that it lacked jurisdiction to grant the Brotherhood's request and dismissed the action. The Brotherhood appealed.

I. BACKGROUND

The Brotherhood represents members of the maintenance-of-way craft employed by Norfolk. Maintenance-of-way members work to ensure that railways remain clear, safe, and navigable. This lawsuit arose after Norfolk fired four of its employees, all Brotherhood members, because they made false statements about injuries they suffered while on duty. The parties' collective bargaining agreements entitle the Brotherhood members to an investigation before Norfolk takes any disciplinary action. The Brotherhood and Norfolk dispute what evidentiary rules and pre-hearing procedures are required in those investigations. Their collective bargaining agreements and the Railway Labor Act govern the disciplinary process. In this case, the Brotherhood does not seek to overturn any prior disciplinary actions, only to impose new procedures that it believes will rectify problems in the Norfolk disciplinary proceedings.

A. The Collective Bargaining Agreements

In 2001, the Brotherhood and Norfolk amended their existing collective bargaining agreements. This amendment, called the System Discipline Rule (“Discipline Rule”), outlines the procedures Norfolk must follow when disciplining the Brotherhood members. The Discipline Rule does not allow Norfolk to discipline, dismiss, or place an unfavorable mark on an employee's record without first conducting a “fair and impartial investigation.”

Pursuant to the Discipline Rule, Norfolk must provide written notice describing the precise charge to the employee and the Brotherhood at least ten days before the disciplinary hearing. The parties refer to the disciplinary hearing as an “investigation.” At the investigation, either the employee or Norfolk can call witnesses to testify. An employee is entitled to the assistance of authorized representatives throughout the process. The Discipline Rule does not require an external investigator to conduct the investigation; typically a single Norfolk-appointed officer conducts them.

After the investigation, the hearing officer determines whether the employee should be dismissed. An employee has the right to appeal the results of the investigation to a higher officer at Norfolk. If an employee remains unsatisfied, he or she may petition the Special Board of Adjustment (“SBA”) ¹ for a final adjudication on the matter.

B. The Railway Labor Act

The Railway Labor Act (“RLA”) governs labor disputes between employees, employers, and labor unions. 45 U.S.C. § 151. The courts divide the disputes into two classes: “major” and “minor.” 45 U.S.C. § 152 ¶¶ Sixth, Seventh; Elgin J. & E. Ry. v. Burley, 325 U.S. 711, 722–23, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945); Consolidated Rail Corp. v. Ry. Labor Executives' Ass'n, 491 U.S. 299, 302, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989). In a major dispute, a union and a railway seek to change the terms of their collective bargaining agreements. 45 U.S.C. § 152 ¶ Seventh; Consolidated, 491 U.S. at 302, 109 S.Ct. 2477. To do so, the parties must enter into an extensive negotiation and mediation process. 45 U.S.C. §§ 155, 156; Consolidated, 491 U.S. at 302, 109 S.Ct. 2477.

Minor disputes, on the other hand, are those “arising out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions.” 45 U.S.C. § 152 ¶ Sixth; Consolidated, 491 U.S. at 303, 109 S.Ct. 2477. When minor disputes occur, the parties must handle the dispute in “the usual manner” and may petition for arbitration before a RLA Adjustment Board. 45 U.S.C. § 153 ¶ First (i); Ryan v. Union Pac. R.R. Co., 286 F.3d 456, 457 (7th Cir.2002) (the usual manner of the parties was prescribed by the terms of their collective bargaining agreement). Adjustment Board awards are final and binding upon both parties, 45 U.S.C. § 153 ¶ First (m), and subject to “one of the most deferential standards of judicial review in all of federal law,” Bhd. of Locomotive Eng'rs & Trainmen v. Union Pac. R.R. Co., 719 F.3d 801, 803 (7th Cir.2013).

Sub judice, the parties followed the procedures typical of a minor dispute. As prescribed by the Discipline Rule, investigations were held in all four disciplinary actions. As prescribed by the Discipline Rule and 45 U.S.C. § 153 ¶ First (i), the Brotherhood then appealed Norfolk's decision to terminate each of its members and petitioned for review before a RLA Adjustment Board.

C. The Disciplinary Actions

Norfolk fired four employees after investigation hearing officers concluded that each employee made false statements related to their claims of on-duty injuries.² In each investigation, Norfolk submitted an accident reconstruction report by Richard T. Hughes, P.E. (“Hughes”), a consulting engineer. Hughes reenacted each accident, and in each case, he concluded that it was unlikely that the injuries sustained by the employees occurred as they described. Hughes never testified at any of the investigations, yet his reports were submitted as evidence. Norfolk never provided notice to the accused employees that it would rely on an expert report in their investigations. Norfolk's use of Hughes' reports at the disciplinary investigations is the heart of this dispute.

We highlight the disciplinary proceeding of Steven Kawa (“Kawa”) because it adequately represents the alleged harm that has befallen each of the Brotherhood members. Kawa claimed he suffered cervical injuries when he drove a truck over a bump in the road at 55 miles per hour. Kawa was jostled and said he hit his head on the ceiling of the truck cab. Kawa drove for another 25 to 30 miles before he asked a co-worker to drive due to pain in his neck. Kawa went to a hospital that same day and was examined. Not one of the other three employees who rode in the truck saw Kawa hit his head or reported any injuries of their own.

After the incident, Norfolk documented Kawa's description of the event in a personal injury report. A Norfolk manager was skeptical of Kawa's injury because Kawa had previously asked for an extended leave of absence. The Norfolk manager reenacted the incident twice in the same truck, at the same speed, and in the same location. The manager was thrown upward by the bump, but he did not hit his head on the ceiling. The manager then hired Hughes to verify the results of the manager's tests. Hughes used the same data as the manager and concluded that it was an “extremely remote” chance that the bump in the road caused Kawa's injury. Subsequently, Norfolk notified Kawa to appear for an investigation regarding any false statements he may have made about his injury.

At the investigation, the manager testified and presented a document detailing his reenactment of the incident. Without disclosing it to Kawa prior to the investigation, the manager read Hughes' report into the record and introduced it as evidence; Hughes did not testify. Kawa's union representative objected to the admission of Hughes' report on the grounds that Hughes was not qualified as an expert and the report's findings were inaccurate. However, neither Kawa nor his union representative objected to the introduction of Hughes' report on the basis that the report was a violation of the Discipline Rule. After the investigation, Norfolk dismissed Kawa from its employment.

The Brotherhood appealed on Kawa's behalf to Norfolk management. The Brotherhood attacked the weight of the evidence against Kawa, and asserted that “[s]ince Mr. Hughes was not available for the Organization to question at the hearing, I can only assume that [Hughes' report] will not have any bearing on the outcome of this investigation.” Again, the Brotherhood did not argue that Norfolk's submission of Hughes' report violated the Discipline Rule. Additionally, and for the first time in the proceeding, the Brotherhood introduced an affidavit from Tony Machetta (“Machetta”) about the purpose and function of the tether straps installed on the driver's seat of the truck. The Brotherhood did not provide information about Machetta's qualifications as an expert or subject him to cross-examination. Norfolk management confirmed Kawa's dismissal, explaining that the evidence did not support Kawa's appeal.

Next, the Brotherhood requested a hearing before the SBA. The SBA was composed of a Norfolk representative, a Brotherhood representative, and a neutral member. In its petition, the Brotherhood raised many issues about the investigation and argued that the facts did not support Norfolk's termination of Kawa. The Brotherhood still did not object to Norfolk's submission of Hughes' report as a violation of Kawa's right to a fair and impartial investigation under the Discipline Rule. The SBA ruled that substantial evidence supported the conclusion that Kawa made a false statement concerning an on-duty injury and Norfolk's dismissal of Kawa was warranted.

The Brotherhood then filed a complaint in federal district court seeking to overturn the SBA award that confirmed Kawa's dismissal. The Brotherhood's efforts to vacate the award proved fruitless.

In a...