Bhd. of Maint. of Way Emps. Div./IBT v. Norfolk S. Ry. Co.

• Decision Date: 25 September 2012
• Docket Number: 10 C 7425
• Parties: BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES DIVISION/IBT, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

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

v.NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.

10 C 7425

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Date: September 25, 2012

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

A dispute has arisen between the Plaintiff, Brotherhood of Maintenance of Way Employees Division/IBT ("BMWED"), and the Defendant, Norfolk Southern Railway Company, under the Railway Labor Act, 45 U.S.C. § 151 et seq. regarding the collective bargaining agreements between them. BMWED is a union that represents Norfolk Southern Railway employees who serve in the maintenance of way craft. At issue is whether the Railway has the right under these agreements to use reports from third-party expert witnesses at the on-property disciplinary hearings it conducts concerning possible misconduct by BMWED-represented employees without having given notice or copies of such reports to the union in advance of the hearings and without bringing the experts to the hearings or otherwise making them available for questioning by the union. The union alleges that the carrier has violated the rights of its members under the existing collectivebargaining agreements, which provide that union-represented employees may only be disciplined after a "fair and impartial investigation."

The union contends that the Railway's practices are neither fair nor impartial and that they violate its members' rights to "contractual due process," and in so doing violate Section 2 First of the Railway Labor Act, 45 U.S.C. § 152 First, which obligates a carrier to maintain agreements with the unions representing its employees. The Union asserts that this Court has the authority to declare the Railway in violation of the RLA and to permanently enjoin it from undertaking certain practices that it finds objectionable. Specifically, the Union objects to the lack of pre-hearing discovery and disclosure by the Railway and to the use of hearsay reports and statements, including expert reports, at the on-property disciplinary hearings it conducts.

The Railway contends that this is a minor dispute within the meaning of the RLA, 45 U.S.C. § 153 First (I), and that therefore it is subject to the exclusive and binding arbitral jurisdiction of the National Railroad Adjustment Board pursuant to Section 3 of the RLA, 45 U.S.C. § 153, or to exclusive and binding arbitration before adjustment Boards established by the carrier and the union pursuant to Section 3 Second of the RLA, 45 U.S.C. § 153 Second. Both parties moved for summary judgment. Norfolk Souther Railway is entitled to judgment as a matter of law for the reasons stated herein and therefore its Motion for Summary Judgment is granted.

I. The Undisputed Material Facts

The undisputed material facts submitted by the union are all supported solely by the Affidavit of Steven V. Powers, an Assistant to the President of the union.¹ Although Powers' affidavit states that he supervises all matters that appear before RLA arbitration boards, he fails to present any facts that show that he has personal knowledge of each of the hearings he is testifying regarding as required by Federal Rule of Civil Procedure 56(c)(4) ("An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated."). See Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 (7th Cir. 2008) ("The evidence supporting a factual assertion must represent admissible evidence."). Such testimony by Powers would be based on inadmissible hearsay in violation of Federal Rules of Evidence 801 and 802 or would violate Federal Rule of Evidence 1002. See Id. Furthermore, the factual assertions made by the union in paragraphs 3, 8 and17 are not relevant to any of the claims or defenses of the parties in this case. The statements of fact contained in paragraphs 20, 21, 22, 23 and 24 constitute statements of opinion and arguments, not statements of fact, contrary to Local Rule 56(a)(3). See Judson Atkinson Candies, Inc., 529 F.3d at 382 n. 2 ("It is inappropriate to make legal arguments in a Rule 56.1 statement of facts.We have held that a district court has broad discretion to require strict compliance with Local Rule 56.1.") (internal citations omitted); Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) (a party's statement of material facts submitted pursuant to Local Rule 56.1 is improper where it fails to cite to the record and is "filled with irrelevant information, legal arguments, and conjecture."). The purpose of Local Rule 56.1 statements of facts is to identify the relevant admissible evidence supporting the material facts that each party contends require either the granting or the denial of summary judgment. See Markham v. White, 172 F.3d 486, 490 (7th Cir. 1999) (the local rules governing summary judgment "assist the court by organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side proposed to prove a disputed fact with admissible evidence.").

In addition, the union's Statement of Additional Facts That Require the Denial of Summary Judgment are taken verbatim from unsupported assertions in Powers's Supplemental Affidavit. They are nothing more than argumentative and conclusory assertions. Under Local Rule 56.1 it is improper for a litigant to include legal or factual conclusions, arguments, or conjecture in a statement of material facts or in a statement of additional material facts. See Judson Atkinson Candies, Inc., 529 F.3d at 382 n. 2; Cady, 467 F.3d at 1060. Furthermore, none of the additional statements of fact show that Powers has personal knowledge of, or is competent to testify to, these facts and therefore do not set out facts that would be admissible in evidence as required by Federal Rule of Civil Procedure56(c)(4). Because the Union's Statement of Additional Facts is improperly argumentative and conclusory and not supported by admissible evidence it is fails to rebut the statements made by the Railway. See Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 527-529 (7th Cir. 2000) (upholding the district court's decision to strike a statement of facts in its entirety, rather than selectively, as a punishment for failing to comply with the local rules governing summary judgment by submitting facts that consisted of improper legal arguments).

The Railway is a "carrier" within the meaning of the Railway Labor Act (hereafter "the RLA"), 45 U.S.C. § 151 First. (BMWED 56.1 Resp. ¶ 1).² NSR employees in themaintenance of way craft are represented by the Brotherhood of Maintenance of Way EMPLOYEES Division/International Brotherhood of Teamsters. (Id. ¶ 2). BMWED is a "representative" of these NSR employees within the meaning of the RLA, 45 U.S.C. § 151 Sixth. (Id.). NSR and BMWED are parties to various collective bargaining agreements that set forth the wages, hours, working conditions, and other terms and conditions of employment of BMWED-represented NSR employees. (Id.).

In 2001, NSR and BMWED entered into a System Discipline Rule (hereafter "SDR"), which amended Rule 30 of the collective bargaining agreement between BMWED and an NSR predecessor, the Norfolk and Western Railway Company, which is applicable to the former Norfolk and Western Railway Company territories on the NSR system. (Id. ¶ 6). The SDR also amended Rule 40 of the collective bargaining agreement between BMWED and another NSR predecessor, the Southern Railway Company, which applies on the former Southern Railway Company properties. (Id.). The SDR provides that "an employee who has been in service more than sixty (60) calendar days shall not be disciplined or dismissed, nor will an unfavorable mark be placed upon their record without a fair and impartial investigation." (Id. ¶ 7).³ A BMWED-represented employee who is underinvestigation by NSR must be given not less than ten days' advance notice of the investigation hearing setting forth the precise charges against the employee under investigation. (Id.). A written transcript of statements taken at the investigation hearing must be made and provided to BMWED. (Id.). The employee may be represented at the investigation hearing by a duly authorized BMWED official. (Id.). The SDR provides that an employee may appeal from an adverse disciplinary decision, initially to the highest designated NSR officer. (Id.). If the matter cannot be resolved at an initial appeal to the highest designated NSR officer, the SDR provides that an appeal may be taken to "a special board of adjustments" that "shall be established with jurisdiction over such disputes involving disciplinary matters resulting in dismissal, suspension or reprimand to provide expedited resolution of such disputes." (Id.).

Over the years NSR and BMWED have established several special Boards of adjustment (hereafter "SBAs") under RLA Section 3 Second (second para.), 45 U.S.C. § 153 Second (second para.), to issue final and binding arbitration awards resolving disputes arising from employee discipline. (Id. ¶ 8). For many years, Dennis L. Kerby, formerlyAssistant Director of Labor Relations and Director Labor Relations and now Assistant Vice President Labor Relations, has served as the Carrier Member of these Boards. (Id.).

The NSR-BMWED SDR does not contain any requirement that either NSR or the union notify the other in advance of a disciplinary investigation hearing when that party intends to introduce written statements from third parties or reports from experts at the hearing. (Id. ¶ 9).⁴ Nor does it contain any requirement that such written statements or expert reports be provided in advance of the hearing. (Id.). The SDR does not provide for any pre-hearing discovery. (Id.). Nor are any such requirements set forth in any other collective...