United States District Court, N.D. Illinois, Eastern Division
September 26, 2005.
GEORGE D. MITCHELL, Plaintiff,
UNION PACIFIC RAILROAD CO., TRANSPORTATION COMMUNICATIONS UNION, NATIONAL RAILROAD ADJUSTMENT BOARD, Defendants.
The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff George Mitchell seeks review of a Railroad Adjustment
Board (Board) decision, which resulted in the termination of his
employment with Union Pacific Railroad (Union Pacific). In his
petition for review, plaintiff challenged the Board's decision by
arguing that it exceeded its jurisdiction, rendered a decision
without reason or fact, committed fraud, and violated his due
process rights by not providing notice of the hearing. Plaintiff
also moved to proceed in forma pauperis. The court reviewed the
petition pursuant to 28 U.S.C. § 1915(a) and dismissed all but
the due process claim. Mitchell v. Union Pacific R.R.,
2005 U.S. Dist. LEXIS 19047, 2005 WL 1189599 (N.D. Ill. 2005).
Defendant Transportation Communications Union (Union) now seeks
to dismiss the remaining due process claim under either
FED.R.CIV. P. 12(b)(6) or FED.R.CIV.P.56. For the following
reasons, Union's motion is granted.
Rule 56 is the proper vehicle for resolving this dispute.
Matters outside the pleadings are relevant and the parties have
filed statements of fact under Local Rule 56.1. Summary judgment is proper when the record shows "that there is no
genuine issue as to any material fact." Fed R.Civ.P. 56(c).
Evidence is viewed in the light most favorable to plaintiff, the
nonmoving party. Payne v. Pauley, 337 F.3d 767, 770 (7th
The only issue is whether plaintiff received notice of the
hearing. When the employee's representative receives notice of
the hearing, actual notice to the employee is not necessary.
O'Neill v. Public Law Board No. 550, 581 F.2d 692, 694 (7th
Cir. 1978). On March 2, 2004, the Union sent plaintiff a letter
stating the following:
Your claim is being prepared for presentation and
final adjudication on April 5, 2004. The hearing is
scheduled with Referee Charlotte Gold at the Embassy
Suites, PGA Blvd. and Interstate 95, in West Palm
You may attend your hearing if you so desire;
however, you must realize the cost of such will be
The Union sent the letter to plaintiff's former address, and
consequently plaintiff did not receive the letter until March 22,
2004. Plaintiff immediately responded to the Union's letter,
requesting a copy of the Union's written submissions so that he
could evaluate whether or not to file additional arguments.
Plaintiff also stated that he "reserve[d] rights to dispute the
outcome of this hearing under the Railway Labor Act." On March
25, 2004, the Union responded to plaintiff, and provided him with
its written submission. It informed plaintiff that no additional
arguments could be added to the submission, but also stated that
"[s]hould you request that changes be made to this submission, I
will seek the proper time limit extensions necessary in order to
postpone presentation of your case before PLB 5835 until such
time as the parties again convene the board, which should be
about this time next year." Further, it instructed plaintiff that
the Board's decision was "final and binding" under the RLA.
In response to the Union's motion, plaintiff argues that the
March 2, 2004, letter provided insufficient notice. He also contends that he rejected
the Union's representation. Neither position has merit.
According to plaintiff, he revoked the Union's representative
authority when he reserved his rights to dispute the hearing's
outcome. Plaintiff never explicitly rejected the Union's
representation. Indeed, by asking for a copy of the Union's
written submission, and attempting to reserve his rights to
dispute the outcome of the hearing, plaintiff assented to its
representation. Under the Union's governing regulations, it has
the duty and authority to appear on behalf of and represent its
constituents to settle their claims and grievances. Plaintiff
claims that he never received the Union's governing regulations,
and does not deem himself bound by them. At this stage the court
credits plaintiff's statement, despite the Union's assertion that
it mailed copies of its Constitution and Protective Laws to
members and posted that information on its website. Still,
plaintiff's ignorance does not diminish the Union's
representative authority, nor does it change the fact that he
assented to the Union's representation in numerous prior
grievance proceedings. Further, plaintiff's contention that the
Union's governing regulations are invalid because they contradict
the RLA fails. Plaintiff cites several provisions from
45 U.S.C. §§ 152 and 153(j) in an apparent attempt to show that the RLA
contemplates a dispute resolution process that only involves the
carrier and the employee. However, each section plaintiff
mentions specifically references the participation of a
representative, thus accommodating Union participation. Indeed,
section 152 Sixth concludes, "[a]nd provided further, That
nothing in this chapter shall be construed to supersede the
provisions of any agreement (as to conferences) then in effect
between the parties." Ultimately, no withdrawal transpired here
and the Union effectively received notice on behalf of plaintiff. Even though it was unnecessary, plaintiff received actual
notice of the hearing. He argues that the March 2, 2004, letter
is fatally flawed because it does not mention the time or address
of the hearing. It is true that the letter does not state the
precise time of the hearing, but the record does not show, and
plaintiff does not contend, that he ever requested that
information. The information contained in the letter sufficiently
apprised plaintiff of the date and place of the hearing, and also
informed him that he could personally attend the proceedings.
Plaintiff also claims that he could not submit additional
arguments to the Board because the March 2 letter was delayed 20
days after the Union initially sent it to the wrong address. Any
hardship caused by the delay was entirely ameliorated when the
Union promptly supplied plaintiff with its written submission and
specifically told him that it would attempt to postpone the
hearing if plaintiff desired to provide additional arguments or
change the submission.
Plaintiff received actual and constructive notice of the
hearing, in compliance with 45 U.S.C. § 153 First (j), and no due
process violation occurred. There is thus no authority to review
the Board's decision, and plaintiff's petition must be
According to the Union, plaintiff has materially misrepresented
the law and facts, and persists in pursuing frivolous and
meritless claims, warranting sanctions. Plaintiff's litigation
practice has spurred one other court to contemplate, but
ultimately reject, sanctions for what it termed plaintiff's
"harassing and frivolous" litigation. Mitchell v. Union Pacific
R.R., 381 F.Supp.2d 733, 738 (N.D. Ill. 2005). We agree that
sanctions would serve no purpose here and join Judge Bucklo's
recommendation that the Executive Committee review all future
filings by plaintiff.
Defendant's motion for summary judgment is granted.
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