Morin v. Consolidated Rail Corp.

• Decision Date: 19 March 1987
• Docket Number: No. 85-3143,85-3143
• Citation: 810 F.2d 720
• Parties: 124 L.R.R.M. (BNA) 2646, 105 Lab.Cas. P 12,177 Joseph Gerard MORIN, Petitioner-Appellant, v. CONSOLIDATED RAIL CORPORATION and Brotherhood of Maintenance of Way Employees, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 720

810 F.2d 720

124 L.R.R.M. (BNA) 2646, 105 Lab.Cas. P 12,177

Joseph Gerard MORIN, Petitioner-Appellant, v. CONSOLIDATED RAIL CORPORATION and Brotherhood of Maintenance of Way Employees, Respondents-Appellees.

No. 85-3143.

United States Court of Appeals Seventh Circuit.

Submitted Jan. 6, 1987.

Decided Jan. 30, 1987.

Rehearing Denied March 19, 1987.

Joseph Gerard Morin, pro se.

Robert E. Connolly, Sowers, Larson, Riebenack & Connolly, Ft. Wayne, Ind., Louis P. Malone, III, Gen. Counsel, BMWE, Washington, D.C., Hermon M. Wells, Consolidated Rail Corp., Philadelphia, Pa., for respondents-appellees.

Before CUMMINGS, WOOD and RIPPLE, Circuit Judges.

PER CURIAM.

Appellant Joseph G. Morin, claiming that he was wrongfully discharged from his position with Consolidated Rail Corporation (Conrail), challenges the district court's decision not to grant him relief. The primary issue on this appeal is whether Conrail is an agency of the federal government for purposes of the due process clause of the Fifth Amendment.

On September 11, 1978, an anonymous individual telephoned an Assistant Track Supervisor at Conrail and indicated that appellant Morin was using Conrail railroad ties to build a bridge on his own property. The next day the Assistant and the Supervisor of Track in the course of investigating the allegation discovered that fifty-six ties were missing from a derailment site. On October 4, 1978, an investigation revealed that a bridge had been built with Conrail ties over a drainage ditch leading to Morin's property.

In accordance with the rules of the relevant collective bargaining agreement, a disciplinary hearing was held on December 4, 1978, on the Conrail property. Morin was represented by a Union representative. In addition, Morin had an attorney at the hearing but the attorney was not allowed to participate in the proceedings. Conrail produced several witnesses who were extensively cross-examined by Morin. Following the disciplinary hearing, it was determined by Conrail management that Morin was guilty of theft. On January 17, 1979, Conrail discharged Morin.

Morin appealed to the National Railroad Adjustment Board (NRAB) which is authorized by the Railway Labor Act, 45 U.S.C. Sec. 151 et seq., to hear disputes over an individual's job rights. See Elmore v. Chicago & Illinois Midland Railway, 782 F.2d 94, 95 (7th Cir.1986). The review process is essentially the same as compulsory arbitration. Id. A three person panel of the NRAB's Third Division, located in Chicago, consisting of one representative of the union, one representative of Conrail, and a neutral referee, Robert Lowry, upheld Conrail's dismissal of Morin. Referee Lowry entered an order which concluded that "[t]he evidence produced [at] the trial overwhelmingly supports the charges of the Carrier. The Carrier's action in imposing the discipline was justified and with sufficient cause.... There is no proper basis for the Board to interfere with the discipline imposed."

Morin then filed this suit challenging the decision of the NRAB. Judicial review under 45 U.S.C. Sec. 153 first (q) is highly deferential and has been characterized as "among the narrowest known to the law." Steffens v. Brotherhood of Railway, Airline and Steamship Clerks, 797 F.2d 442, 447 (7th Cir.1986) (quoting Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89, 91, 99 S.Ct. 399, 401, 58 L.Ed.2d 354 (1978)). The statute allows review if the Board (1) failed to comply with the provisions of the Railway Labor Act; (2) failed to confine its order to matters within its jurisdiction; or (3) had a member who acted corruptly in deciding a matter. See Steffens, 797 F.2d at 447 (citing 45 U.S.C. Sec. 153 first (q)). This court has also found that review is available if the NRAB denies a person due process in contravention of the Fifth Amendment. See Steffens, 797 F.2d at 448; O'Neill v. Public Law Board No. 550, 581 F.2d 692, 694 (7th Cir.1978).

Morin claims both that he was denied due process and that a member of the Board acted corruptly. His claim of corruption by a Board member is supported only by his assertion that Referee Lowry could not have rendered a fair decision because he had previously served as a union steward. This allegation without more is clearly an insufficient basis on which to challenge a decision of the Board. Morin also argues that the NRAB's decision should be set aside because the NRAB did not afford him the opportunity to show that perjury occurred at his December 4, 1978, disciplinary hearing. In addition, Morin claims that he should have been given the opportunity to submit his criminal acquittal on theft charges to the NRAB. These allegations, which can be characterized as procedural due process claims, do not support setting aside the NRAB's decision. Our review of the record discloses that the NRAB provided Morin with ample opportunity to present his arguments. The decision of the Board, which based its conclusions on the thorough December 4 disciplinary hearing, cannot be described as lacking a foundation in reason or fact. See Anderson v. National Railroad Passenger Corp., 754 F.2d 202, 203 (7th Cir.1984). The Board's reasoning is clearly adequate to withstand the limited judicial scrutiny that the law affords it.

Morin also appears to be claiming that Conrail did not afford him due process when it terminated him. Although the due process clause of the Fifth Amendment applies to actions of a governmental body such as the NRAB, the due process clause does not apply to an entity such as Conrail unless its actions can be fairly attributed to the federal government. In Anderson v. National Railroad Passenger Corp., 754 F.2d 202 (7th Cir.1984), this Court held that the actions of Amtrak, a corporation that has some similarities to Conrail, in terminating an employee did not constitute government action for purposes of the Fifth Amendment. Id. at 204; see also National Railroad...