Elmore v. Chicago & Illinois Midland Ry. Co.

• Decision Date: 17 January 1986
• Docket Number: No. 85-1501,85-1501
• Citation: 782 F.2d 94
• Parties: 121 L.R.R.M. (BNA) 2381, 104 Lab.Cas. P 11,773 Kenneth C. ELMORE, Plaintiff-Appellant, v. CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 94

782 F.2d 94

121 L.R.R.M. (BNA) 2381, 104 Lab.Cas. P 11,773

Kenneth C. ELMORE, Plaintiff-Appellant, v. CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY, Defendant-Appellee.

No. 85-1501.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 17, 1985.

Decided Jan. 17, 1986.

Grady E. Holley, Holley, Keith & Mehlick, Springfield, Ill., for plaintiff-appellant.

Charles E. Holt, Graham & Graham, Springfield, Ill., for defendant-appellee.

Before BAUER, WOOD and POSNER, Circuit Judges.

POSNER, Circuit Judge.

Kenneth Elmore, who was fired by the Chicago & Illinois Midland Railway for unauthorized moonlighting, asks us to reverse the judgment of the district court dismissing for lack of jurisdiction his petition to review a decision of the National Railroad Adjustment Board upholding his firing.

The facts, somewhat simplified, are as follows. Elmore requested and was granted permission to take a personal day of leave on May 31, 1979. During that day he was seen doing roofing work on someone's house (not his own). On June 1 the railroad sent Elmore a letter notifying him, pursuant to Rule 32 of the collective bargaining contract, which requires notice and an opportunity for a hearing before a dismissal, that there would be a hearing to decide whether he had violated Rules P and W of the agreement. These rules provide that "Employees must not absent themselves from their duties ... without proper authority" and that "Employees will not be permitted to engage in other employment without permission of their employing officer."

The hearing was held on June 19 before an employee of the railroad. Elmore was represented by a union griever. The railroad's chief of police testified that he had seen Elmore repairing the roof. Elmore admitted that he had done some roofing work on the afternoon of his day off, May 31.

On June 29 the railroad fired Elmore for having violated Rule 15(c) of the collective bargaining agreement, which provides that "An employee absent on leave, who engages in other employment will forfeit all seniority rights, unless special arrangements shall have been made in writing...." On July 3 the hearing officer rendered her decision, finding that Elmore had indeed violated Rules P and W but imposing no sanction, since Elmore had been fired.

Elmore complained to the National Railroad Adjustment Board (see 45 U.S.C. Sec. 153 First (i)) that the railroad had denied him due process of law by failing to give him notice of and a hearing on the charge of violating Rule 15(c). The Board disagreed, finding that Rule 15(c) "is self-executing and an investigation under Rule 32 is not required where Rule 15(c) is applicable."

Elmore petitioned the district court under 45 U.S.C. Sec. 153 First (q) to set aside the Board's decision because he had been denied due process of law in the hearing conducted by the railroad. The district court dismissed the petition for lack of jurisdiction, because the petition did not advance one of the three grounds that the statute specifies for judicial review of a decision by the Board--failure of the Board to comply with the requirements of the Railway Labor Act; failure of the Board to confine itself to matters within its jurisdiction; fraud or corruption in the Board's decision. Elmore argues, however, with some basis in case law (see, e.g., O'Neill v. Public Law Board No. 550, 581 F.2d 692, 694 (7th Cir.1978); Brotherhood of Maintenance of Way Employees v. St. Johnsbury & Lamoille County R.R., 512 F.Supp. 1079, 1084 (D.Vt.1981); cf. Anderson v. National Railroad Passenger Corp., 754 F.2d 202, 203 (7th Cir.1984) (per curiam)), that a fourth ground should be read into the statute: violation of a constitutional right.

The Railway Labor Act establishes a scheme of compulsory arbitration for so-called minor disputes, which include disputes over an individual's job rights, as in this case. Although the Act itself uses the word "arbitration" to refer to an alternative mode of dispute settlement that the parties may elect under 45 U.S.C. Sec. 157, see 10 Kheel, Labor Law Sec. 50.06, at pp. 50-37 to 50-38 (1985), the procedure that the Act creates for parties who (as in this case) do not make that election is, in fact though not in name, arbitration, too. See 45 U.S.C. Sec. 153 First. The tribunal, although grandly styled the National Railroad Adjustment Board, in fact consists of private individuals chosen by the railroad industry and the railroad unions. See 45 U.S.C. Sec. 153 First (a), (h), (k), (l). The standard of judicial review of these arbitrators' decision is similar--perhaps, as we recently suggested in Brotherhood of Locomotive Engineers v. Atchison, Topeka & Santa Fe Ry., 768 F.2d 914, 921 (7th Cir.1985), identical--to the standard for judicial review of commercial and labor arbitration in general. Errors, even clear ones, are not grounds for setting aside the decision. If the decision is a bona fide effort to interpret and apply the parties' contract (the collective bargaining agreement), it is conclusive.

Private arbitration, however, really is private; and since constitutional rights are in general rights against government officials and agencies rather than against private individuals and organizations, the fact that a private arbitrator denies the procedural safeguards that are encompassed by the...