Cusack v. Trans-Global Solutions, Inc.

• Decision Date: 17 January 2002
• Docket Number: No. CIV.A. V-99-92.,CIV.A. V-99-92.
• Citation: 222 F.Supp.2d 834
• Parties: Steve CUSACK, Petitioner, v. TRANS-GLOBAL SOLUTIONS, INC. successor to Econo-Rail Corp. and Sabine Contracting Corp., Respondents.
• Court: U.S. District Court — Southern District of Texas

222 F.Supp.2d 834

Steve CUSACK, Petitioner, v. TRANS-GLOBAL SOLUTIONS, INC. successor to Econo-Rail Corp. and Sabine Contracting Corp., Respondents.

No. CIV.A. V-99-92.

United States District Court, S.D. Texas, Victoria Division.

January 17, 2002.

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Robert P Houston, John Griffin, Jr, Houston Marek and Griffin, Victoria, TX, Bobby D Brown, Law Office of Bobby D Brown, Victoria, TX, for Steve Cusack, petitioner.

Samuel Edward Hooper, Neel Hooper & Kalmans, Houston, for Trans-Global Solutions, Inc., Successor to Econo-Rail Corp, respondent.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

RAINEY, District Judge.

This civil action was tried before the Court on September 10-11, 2001, and the Court makes the following findings and conclusions. To extent that any conclusion of law is more properly characterized as a finding of fact, or vice versa, the Court adopts it as such.

FINDINGS OF FACT

This case was brought by Steve Cusack to enforce an award in his favor from the National Railroad Adjustment Board ("NRAB") pursuant to 49 U.S.C. § 20109 and the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et seq. In reviewing agency decisions it is a well established rule that, "[T]he reviewing court refrains from substituting its own judgment as to the correct resolution of factual questions for that of the administrative agency. Instead, the agency's factual determination is accepted unless there is no substantial evidence in the record as a whole to support it." Brennan v. Nat'l Hotel Co., 476 F.2d 17, 20 (5th Cir.1973). This is particularly true in the context of NRAB decisions, review of which is "among the narrowest known to the law." Union Pacific R.R. v. Sheehan, 439 U.S. 89, 91, 99 S.Ct. 399, 58 L.Ed.2d 354 (1978). In addition, "Once a decision has been issued, the Act forecloses relitigation of the same issue in court." Bhd. of Locomotive Eng'rs v. St. Louis S.W. Ry., 757 F.2d 656, 659 (5th Cir.1985). If NRAB determinations did not have such broad preclusive effect on the parties Congress's goal of keeping these disputes out of the federal courts could not be effectuated. Id. Thus, in the context of reviewing NRAB findings the district court must give great deference to the Board and will review its factual determinations only to the extent necessary to determine whether or not there is evidence in the NRAB record to support them. Therefore, it is necessary for the Court to make independent factual findings only if the NRAB award cannot be supported on the NRAB record. Because the Court finds that the NRAB had sufficient evidence to support its award the Court will make only minimal factual findings:

1.) The NRAB awarded Cusack the following relief: a.) Reinstatement to service with Econo-Rail, b.) Lost wages through February 2, 1999 in the amount of $34,763.58, c.) Lost wages from February 2, 1999 to the date of Cusack's reinstatement in the amount of $365.57 per week, and d.) Interest at the rate of 6% per annum on the entire award accruing from July 2, 1999.

2.) Cusack has not yet been reinstated by Econo-Rail.

CONCLUSIONS OF LAW

I. Standard of Review

There are at least four and possibly five grounds upon which an NRAB award can be set aside. Three of these grounds are specifically provided for in the statute: "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, or for fraud or corruption by a member of the division making the order." 45 U.S.C. § 153(q). The Fifth Circuit has also held that an NRAB award may be set aside if the NRAB failed to respect the parties' Due Process rights. Atchison, Topeka & Santa Fe Ry. v. United Transp. Union, 175 F.3d 355, 357 (5th Cir.1999). Finally, some Circuits have set aside NRAB awards on public policy grounds.

Econo-Rail argues that the NRAB did not have jurisdiction over Econo-Rail, that its award was not in conformity with the law, and that the award was based on fraudulent, perjured testimony and thus it would be against public policy to enforce it.

II. Jurisdiction of the NRAB

A. Econo-Rail's Status as a "Carrier"

Econo-Rail Corporation ("Econo-Rail") challenges the NRAB award on the grounds that Econo-Rail is not a "railroad carrier" within the meaning of the RLA and thus the NRAB had no jurisdiction over it. The NRAB has jurisdiction only over "carriers" or "rail carriers." As defined in the act a carrier includes "any railroad subject to the jurisdiction of the Surface Transportation Board [(`STB')], any express company that would have been subject to subtitle IV of Title 49, as of December 31, 1995," and any subsidiary company involved in various types of activities related to railroad transportation. 45 U.S.C. § 151. There are also certain exemptions from coverage under the RLA that are not relevant to this case. Econo-rail argues that because it is not a "common carrier" it is not subject to the RLA. The powers and jurisdiction of the STB are set out in 49 U.S.C. § 721. Section 727 adopts the definitions found in subchapter IV of Title 49. Subchapter IV defines "rail carrier" as "a person providing common carrier railroad transportation for compensation." 49 U.S.C. § 10102(5). A "common carrier" is defined as "`one who holds himself out to the public as engaged in the business of transportation of persons or property from place to place for compensation.'" Kieronski v. Wyandotte Terminal R.R., 806 F.2d 107, 108 (6th Cir.1986) (quoting Kelly v. Gen. Elec. Co., 110 F.Supp. 4, 6 (E.D.Pa.)). There does not appear to be any dispute that Econo-Rail is not a common carrier.

Cusack argues, however, that Econo-Rail does not have to be a common carrier as long as Econo-Rail engages in railroad activities. Cusack points to 49 U.S.C. § 20102(2) which defines a "railroad carrier" as "a person providing railroad transportation." "Railroad" is defined broadly as "any form of nonhighway ground transportation that runs on rails or electromagnetic guideways." 49 U.S.C. § 20102(1)(A). Conspicuously absent from this definition is any reference to a "common carrier." In fact, common carrier language was removed from the statute in 1988 with the passage of the Railway Improvement Act ("RIA"), Pub.L. No. 100-342, 102 Stat. 624 (1988), which adopted the broader definition of railroad carrier currently found in § 20102.¹ "The purpose of the [RIA] was to continue and expand federal jurisdiction over railroad safety to include railroads that are neither common carriers nor engaged in interstate commerce," by broadening the enforcement and inspection powers of the Federal Railroad Administration ("FRA"). Mickler v. Nimishillen & Tuscarawas Ry., 13 F.3d 184 (6th Cir.1993). Title 49 U.S.C. § 20109(a), the statute under which Cusack brought his NRAB complaint provides that, "A railroad carrier engaged in interstate or foreign commerce may not discharge or in any way discriminate against an employee because the employee," has reported safety violations to the FRA. The statute goes on to provide that, "A dispute, grievance, or claim arising under this section is subject to resolution under section 3 of the Railway Labor Act (45 U.S.C. § 153)." 49 U.S.C. § 20109(c). Thus, § 20109 specifically confers jurisdiction on the NRAB to resolve the type of claim asserted by Cusack. Because a railroad does not have to be a common carrier to be subject to § 20109, NRAB arbitration pursuant to § 20109 does not require a railroad employer to be a common carrier. The legislative history also indicates that Congress specifically intended to abandon the use of the term common carrier in § 20109 and adopt the broader definition of railroad found in § 20102. H.R.REP. 103-180 (1993). However, the jurisdiction of the NRAB is somewhat limited in that a railroad must be engaged in interstate or foreign commerce in order for § 20109 to apply.

The NRAB found that Econo-Rail was a carrier within the meaning § 20109. The primary evidence before the NRAB on this issue was a memo from R.J. Castiglione, an inspector for the FRA. This memo indicates that Econo-Rail maintained three locomotives at the Union Carbide Plant in Seadrift, Texas. One locomotive was used only within the Union Carbide plant, one was kept as a backup for emergencies, and one was maintained and used outside of the Union Carbide plant to receive and switch cars brought to the plant by Union Pacific. This locomotive was also used to switch cars at an additional Union Carbide plant located across state road 185. The Union Pacific line is used to service two customers. In addition the FRA concluded that it had jurisdiction over Econo-Rail's Seadrift operations on June 20, 1997 and has exercised that jurisdiction ever since. It is an old and well established doctrine that "interstate commerce" is a broad term and generally encompasses everything affecting the channels of interstate commerce, moving in interstate commerce, or utilizing the instrumentalities of interstate commerce. See United States v. Morrison, 529 U.S. 598, 608-09, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). Econo-Rail's use of Union Pacific's rail lines is sufficient to bring it within this definition.² Therefore, the NRAB did have sufficient evidence before it to conclude that Econo-Rail was covered by § 20109.³

Econo-Rail places great emphasis on the statement in the FRA memo and a subsequent letter from the FRA that, "Econorail's operations at Seadrift have not been under the FRA's jurisdiction since Union Carbide awarded Econorail the contract in 1993." In context, however, this does not appear to be an admission by the FRA that it lacked jurisdiction over Econo-Rail prior to June 20, 1997, but is merely an acknowledgment that it had not exercised its jurisdiction up to that time because it was unaware of the nature of Econo-Rail's activities at the Seadrift facility. The NRAB could...