Mcclendon v. Union Pac. R.R. Co.

• Decision Date: 19 May 2011
• Docket Number: No. 10–2166.,10–2166.
• Citation: 640 F.3d 800,190 L.R.R.M. (BNA) 3049
• Parties: L.N. McCLENDON; Brotherhood of Locomotive Engineers and Trainmen, Plaintiffs–Appellants,v.UNION PACIFIC RAILROAD COMPANY, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

640 F.3d 800

190 L.R.R.M. (BNA) 3049

161 Lab.Cas. P 10,377

L.N. McCLENDON; Brotherhood of Locomotive Engineers and Trainmen, Plaintiffs–Appellants,

v.UNION PACIFIC RAILROAD COMPANY, Defendant–Appellee.

No. 10–2166.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 12, 2011.Filed: May 19, 2011.

Michael P. Persoon, argued, Thomas H. Geoghegan, on the brief, Chicago, IL, for appellant.Clifford Alan Godiner, argued, St. Louis, MO, for appellee.Before WOLLMAN, LOKEN, and SMITH, Circuit Judges.LOKEN, Circuit Judge.

Historically, railroad engineers were members of the Brotherhood of Locomotive Engineers and Trainmen (“BLET”); conductors and other trainmen were members of the United Transportation Union (“UTU”). Today, with railroad jobs consolidated in a reduced workforce, engineers often work as trainmen and vice versa. But the unions have not merged, and the Railway Labor Act provides that an employee need only be a member of one union while working in any train service capacity. 45 U.S.C. § 152 Eleventh (c). The result is that a member of one union may be disciplined while working under the other union's collective bargaining agreement. This situation has created recurring litigation and perplexing “jurisdictional” disputes, as this appeal illustrates. See generally Landers v. Nat'l R.R. Passengers Corp., 485 U.S. 652, 656–58, 108 S.Ct. 1440, 99 L.Ed.2d 745 (1988); Ryan v. Union Pac. R.R., 286 F.3d 456, 458–59 (7th Cir.), cert. denied, 537 U.S. 880, 123 S.Ct. 89, 154 L.Ed.2d 136 (2002).

The Union Pacific Railroad Company (“UP”) terminated L.N. McClendon, a member of the BLET, while he was working under a governing collective bargaining agreement between the UP and the UTU (the “UP–UTU Agreement”). The BLET filed a grievance (claim) with the UP seeking reinstatement and backpay. The UP denied the grievance, and the BLET filed an arbitration claim with the National Railroad Adjustment Board (“the NRAB”), the Railway Labor Act's preferred method of resolving “minor” disputes. See 45 U.S.C. § 153 First (i); Union Pac. R.R. v. Bhd. of Locomotive Eng'rs & Trainmen, ––– U.S. ––––, 130 S.Ct. 584, 591, 175 L.Ed.2d 428 (2009). After the NRAB dismissed the claim as procedurally defective, McClendon and the BLET (“Plaintiffs”) filed this lawsuit to set aside the NRAB Award. The district court ¹ denied discovery requests and granted summary judgment for the UP. Plaintiffs appeal. We affirm.

The BLET grievance alleged, inter alia, that the UP, in terminating McClendon, improperly interpreted Article 12 of the UP–UTU Agreement, governing layoffs and leaves of absence. While processing the grievance “on property,” ² the UP warned at least twice that the BLET was not the proper party to represent McClendon because he was terminated while working under the UP–UTU Agreement.

After the UP denied the grievance, the BLET filed a claim for McClendon with the NRAB's First Division, which has jurisdiction over disputes involving train service employees. 45 U.S.C. § 153 First (h). The NRAB issued a “Third Party Notice” seeking the views of the UTU, which urged the arbitration Board to dismiss the claim because (i) it was not timely presented to the UP by McClendon as required in Article C–16 of the UP–UTU Agreement,³ and (ii) it was not “handled in the usual manner” under the Railway Labor Act, as required by the NRAB's rules, see 29 C.F.R. § 301.2(b), because the BLET had no jurisdiction to interpret the UP–UTU Agreement and therefore “the case should have been forwarded to the UTU to handle.” Though the UTU believed that the termination violated Article 12(C) of the UP–UTU Agreement, it urged the NRAB to dismiss the procedurally barred claim rather than “undo the errors of others.”

The NRAB dismissed the claim. After noting that it had jurisdiction, the NRAB concluded that the BLET has “no representation rights” for conductors, like McClendon, who are covered by the UP–UTU Agreement; that Article C–17 of the Agreement “unquestionably vests” in the UTU the right to represent conductors in matters involving interpretation of Article 12 of the UP–UTU Agreement; and that the BLET “had no authority to progress the instant claim.” Accordingly, the Award ended, “we find that the clear language of the Agreement is controlling and we are compelled to dismiss this claim.” McClendon and the BLET then filed this suit to vacate and set aside the NRAB Award. Applying the relevant standard of review, which is “among the narrowest known to the law,” Union Pac. R.R. v. Sheehan, 439 U.S. 89, 91, 99 S.Ct. 399, 58 L.Ed.2d 354 (1978) (quotation omitted), the district court concluded that it could not disturb the NRAB's interpretation of the UP–UTU Agreement. Plaintiffs appeal. We review the grant of summary judgment de novo, applying the same standard as the district court. Brooks v. Union Pac. R.R., 620 F.3d 896, 899 (8th Cir.2010).

Plaintiffs argue that the NRAB violated the UP–UTU Agreement by “legislat[ing] ... right out of the contract” the second sentence of Article C–17, which provides:

The right to represent conductors or trainmen in making and interpreting agreement, rules and rates of pay, and in handling seniority for conductors and trainmen shall be vested in the regularly constituted committee representing the conductors and trainmen employed by the [UP]. This, however, does not abridge the right of any conductor or trainman to take up a personal grievance with the officials of the Railroad, either by a personal representative or through the Committee of the organization with which it is affiliated.

But the NRAB did not ignore this contract provision. It determined that the second sentence did not apply to McClendon's claim because that sentence “deals with taking up a ‘personal grievance’ as opposed to the claim involving an interpretation [of Article 12] of the UTU Agreement improperly progressed to the First Division by the BLET.” Under the narrow standard of review prescribed by the Railway Labor Act in 45 U.S.C. § 153 First (q), we may not reconsider the NRAB's interpretation of the UP–UTU Agreement. “[T]he question ... is not whether the arbitrator or arbitrators erred in interpreting the contract; it is not whether they clearly erred in interpreting the contract; it is not whether they grossly erred in interpreting the contract; it is whether they interpreted the contract.” Hill v. Norfolk & W. Ry., 814 F.2d 1192, 1194–95 (7th Cir.1987); see Finley Lines Joint Protective Bd. Unit 200 v. Norfolk So. Ry., 312 F.3d 943, 946 (8th Cir.2002); Bhd. of Maint. of Way Emps. v. Soo Line R.R., 266 F.3d 907, 909–10 (8th Cir.2001).

Plaintiffs suggest the NRAB's interpretation of Article C–17 violated 45 U.S.C. § 153 First (j) (“Parties may be heard [by the NRAB] either in person, by counsel, or by other representatives, as they may respectively elect....”). We disagree. The RLA provides that, at the on-property stage, disputes “shall be handled in the usual manner.” 45 U.S.C. § 153 First (i). This provision “allows the railroad and the union to prescribe in the collective bargaining agreement the manner in which grievance proceedings shall be conducted on the property.” Ryan, 286 F.3d at 459 (emphasis in original). The NRAB construed Article C–17 as requiring that claims involving interpretation of the UP–UTU Agreement be progressed on-property by the UTU, an interpretation we may not overturn. The Board then dismissed the claim as procedurally barred by the failure to comply with 29 C.F.R. § 301.2. It did not address whether § 153 First (j) would have permitted McClendon to be represented by the...