Emswiler v. CSX Transp., Inc.

Citation26 A.D. Cases 1160,691 F.3d 782
Decision Date20 July 2012
Docket NumberNo. 11–3517.,11–3517.
PartiesMichael R. EMSWILER, Plaintiff–Appellant, v. CSX TRANSPORTATION, INC., Brotherhood of Locomotive Engineers and Trainmen, Defendants–Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

OPINION TEXT STARTS HERE

ARGUED:Gary A. Reeve, Law Offices of Gary A. Reeve, LLC, Columbus, Ohio, for Appellant. Kristin Seifert Watson, Cloppert, Latanick, Sauter & Washburn, Columbus, Ohio, John B. Lewis, Baker & Hostetler LLP, Cleveland, Ohio, for Appellees. ON BRIEF:Gary A. Reeve, Law Offices of Gary A. Reeve, LLC, Columbus, Ohio, for Appellant. Kristin Seifert Watson, Frederick G. Cloppert, Cloppert, Latanick, Sauter & Washburn, Columbus, Ohio, Michael S. Wolly, Zwerdling, Paul, Kahn & Wolly, P.C., Washington, D.C., John B. Lewis, Baker & Hostetler LLP, Cleveland, Ohio, for Appellees.

Before: SUTTON, McKEAGUE, and RIPPLE *, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

Plaintiff Michael Emswiler sued his employer, CSX Transportation, Inc. (CSX), a railroad, and the Brotherhood of Locomotive Engineers and Trainmen (BLET) after his seniority on the roster of train engineers was adjusted in May 2009. Emswiler alleged breach of collective bargaining agreement (“CBA”), breach of duty of fair representation, and disability discrimination under Ohio law. The parties brought motions for summary judgment, and the district court granted Defendants' motions. Emswiler appeals. The district court correctly determined it could not reach the merits of Emswiler's claims for breach of CBA and disability discriminationdue to his failure to pursue arbitral mechanisms mandated by the Railway Labor Act. Accordingly, we affirm the grant of summary judgment on those claims. As for Emswiler's claim for breach of duty of fair representation, we also affirm.

The Railway Labor Act (“RLA”) governs disputes between management and labor in the railroad industry. 45 U.S.C. §§ 151, 153. The RLA promotes stability in labor-management relations by providing effective and efficient remedies for labor disputes, thereby preventing interruptions in rail service. Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 58 L.Ed.2d 354 (1978). The RLA divides such disputes into two categories: major and minor. Major disputes concern the formation of collective bargaining agreements, whereas minor disputes deal with the interpretation of existing CBAs. See Consol. Rail Corp. v. Ry. Labor Execs. Ass'n., 491 U.S. 299, 302–303, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989). This is a minor dispute.

The RLA “establishes a mandatory arbitral mechanism for ‘the prompt and orderly settlement’ ... of disputes.” Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994) (quoting 45 U.S.C. § 151a). With regard to minor disputes, the RLA provides initially for settlement through contractually agreed-upon grievance procedures; these are sometimes referred to as “on the property” remedies. See45 U.S.C. § 152 First, Second. Failure to resolve minor disputes “on the property” gives rise to compulsory and binding arbitration by one of the divisions of the National Railroad Adjustment Board (“NRAB” or “the Board”) or a privately established arbitration panel. 45 U.S.C. § 153 First (i). After taking his or her dispute through these mechanisms, an employee aggrieved by an NRAB decision may file his or her claim in the appropriate district court. 45 U.S.C. § 153 First (q). “Judicial review of Adjustment Board orders is limited to three specific grounds: (1) failure of the Adjustment Board to comply with the requirements of the Railway Labor Act; (2) failure of the Adjustment Board to conform, or confine, itself to matters within the scope of its jurisdiction; and (3) fraud or corruption [by a member of the division making the order].” Sheehan, 439 U.S. at 93, 99 S.Ct. 399 (citing 45 U.S.C. § 153(q)). Our discussion of Emswiler's claims for breach of CBA and disability discrimination focuses on his failure to bring his claim to the NRAB before coming to court.

I. FACTUAL BACKGROUND

CSX operates a 23,000 mile railroad system in twenty-three states and two Canadian provinces. CSX has both train-service workers and engine-service workers. Locomotive engineers are engine-service workers, whereas conductors and brakemen are train-service workers, also referred to as trainmen. BLET is the bargaining representative for engine-service workers, and the United Transportation Union (“UTU”) is the bargaining representative for train-service workers. As their job titles suggest, the engineer controls the engine and operates the controls that move the train, whereas the conductor is responsible for the crew in control of the body of the train. Where all other factors are equal, engine-service workers earn more per day than train-service workers. Shifts are assigned to all employees based on their seniority within the particular category of service, such that an engineer with twenty years of engine-service seniority will have priority for being assigned a shift over an engineer with only five years of engine-service seniority.

The terms of CSX engineers' employment are governed by a collective bargaining agreement (“CBA”) between BLET and CSX. At the time Emswiler began his engineer training, the applicable CBA from 1955 contained the following provisions regarding how to establish and contest seniority:

Seniority Date

(a) The date of a promoted or hired engineer shall be the date of his first service as an engineer when there are no demoted or furloughed engineers, or when senior qualified man to be promoted is not available the man used as engineer will establish date for the senior man. When the date of a promoted or hired engineer has been established as specified herein, such date shall be posted and if not challenged in writing within sixty (60) days after such posting no protest against such date shall afterward be heard.

...

Seniority Roster

(d) A seniority roster of engineers will be compiled in order of their seniority. Rosters will be revised and posted under glass (showing actual date of posting) and in a conspicuous place at all engine terminals and when necessary, at other points agreed upon, in January and July of each year and two (2) copies furnished to each Local Chairman of the seniority district affected.

Seniority rosters will be subject to correction on proof of error or omission if written protest was made within sixty (60) days from date of posting....

(1955 CBA, Page ID # 1476–77.)

It had been longstanding company practice to allow engineer trainees who had been removed from training for medical reasons to retain their seniority dates, provided they completed training at their earliest opportunity upon removal of the medical restriction. That practice was memorialized in the 2007 CBA, which states:

F. It is also understood that employees who are unable to complete their scheduled engineer training class due to sickness, FMLA, military service or other reasonable circumstances, as determined by the BLET General Chairman of jurisdiction and CSXT's Highest Designated Officer, will retain their proper position for promotion, if they return to service at their earliest opportunity.

(2007 CBA, Page ID # 1510.) The 2007 CBA provides for appeals to the seniority roster within two years of posting.

Emswiler was employed as a train-service worker by Chessie Systems, which was subsequently purchased by CSX, from 1978–81. Emswiler began locomotive engineer training in September 1980. He completed the in-class portion of the training, but before he made his “qualifying ride” to complete training and become an engineer, Emswiler was medically disqualified from train service altogether because he was diagnosed with Type I diabetes. Emswiler left Chessie in February 1981. Despite the fact that he did not complete engineer training prior to his medical removal, Emswiler's name was placed on the engineer seniority roster with a seniority date of May 27, 1980 (“the 1980 seniority date”) and remained there.

In 1993, Emswiler returned to CSX after more than a decade of working other jobs, including work with another railroad. Upon returning, Emswiler worked as a train-service worker. Emswiler states he did not seek work as an engine-service worker at that time because he was concerned that his diabetes would cause him to lose consciousness or not be alert enough to perform well. In fact, Emswiler did lose consciousness while working as a brakeman, and an accident resulted. In 1997, Emswiler began using an insulin pump, which he describes as “crude and difficult to use.” (Emswiler Aff., Page ID # 1055.) On March 10, 1997, CSX's Chief Medical Officer deemed Emswiler “qualified to perform railway service without restrictions....” (Medical Letter, Page ID # 1996.) But Emswiler still felt the insulin pump did not work well enough to allow him to perform engine-service duties safely. So Emswiler did not begin inquiring about completing his engineer service training to become an engine-service worker until mid–2007, when he was told there would be a new insulin pump available to him that would allow him to deliver insulin immediately when needed. Emswiler now uses the improved pump, and feels that it allows him to control his insulin levels and more effectively work as an engineer.

Emswiler entered the engineer training class of April 2008 and completed training in October 2008. Before he began training, he was advised by a CSX employee that he would retain his existing seniority date upon becoming an engineer. Because shifts are meted out based upon seniority, and the 1980 seniority date gave Emswiler high seniority status, he was able to work as an engineer full time from October 30, 2008 through May 26, 2009.

On February 6, 2009, BLET Regional Vice–General Chairman William Lyons wrote to BLET General Chairman Rick Finamore stating that Lyons had received a protest...

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