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Kansas City Southern Railway Co. v. Brotherhood of Locomotive Engineers & Trainmen

March 15, 2006


The opinion of the court was delivered by: Richard Mills, U.S. District Judge


Both the Railroad and the Union move for summary judgment. The Union prevails.


Plaintiff Kansas City Southern Railway Company (the "Railroad") is a railroad engaged in interstate transportation as defined by the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151, et seq.

Defendant Brotherhood of Locomotive Engineers & Trainmen (the Union") is a labor organization subject to the RLA and is the duly designated representative of the craft or class of locomotive engineers employed by the Railroad.

The Railroad employed S.J. Pulice and J.R. Sommers as locomotive engineers, but the Railroad terminated both of them for vandalizing its property.

The Railroad and the Union are parties to a Collective Bargaining Agreement ("CBA") governing the rates of pay, rules, and working conditions of the Railroad's locomotive engineers. Article 50 of the CBA contains a grievance/arbitration procedure setting forth the mechanism by which the Union or its members may challenge the termination of an employee's employment, including specific time limits by which the Union and/or its members must take certain actions in order to do so. The procedure set forth in Article 50 is commonly found in agreements between various U.S. railroads and rail labor unions.

In the fall of 1997, a wildcat strike began in Shreveport, Louisiana, and spread throughout the Railroad's entire railroad system. Several acts of vandalism were committed against the Railroad's equipment and property. In Heavener, Oklahoma, vandals slashed 202 air hoses (both airlines and brakelines) during the strike.

In July 2001, the Railroad's Director of Claims Rodney Tatum received a phone message from Kim Holt, S.J. Pulice's ex-wife. Ms. Holt claimed to have information about the 1997 vandalism in Heavener, Oklahoma. She signed a sworn affidavit implicating Pulice and Sommers. Her August 8, 2001, affidavit stated that:

One evening during September or October of 1997, Mr. Pulice waited at our home until our children went to bed. Mr. Pulice then dressed himself in camouflage clothing and applied black paint to his face. I asked Mr. Pulice what he was doing and he replied that it was none of my business. Mr. Pulice left our home at approximately 10:00 p.m. that same evening, and he returned approximately 3:00 or 4:00 a.m. Mr. Pulice told me that he had been out with other KCS employees that evening. He told me that he and other KCS employees had cut and otherwise sabotaged airlines and brakelines on KCS trains parked at Heavener and Sallisaw. Mr. Pulice did not name all of the KCS employees who went with him, but he did specifically state that Jerry Sommers was one of those employees. Mr. Pulice told me that he and other KCS employees cut the airlines and brakelines in an effort to disrupt the operations of the KCS and further the interests of the KCS employees during the strike. Mr. Pulice did not tell me anything else about his activities during that strike. Holt's Affidavit went on to say that:

. . . during July of 2001, I was talking on the phone to one of my daughters, who was at Mr. Pulice's home at the time the telephone conversation took place. I overheard Mr. Pulice yelling in the background, and my daughter said that her father (Mr. Pulice) was mad at the KCS. I specifically heard Mr. Pulice yelling that he would "disable every goddamn train the KCS had if he On August 15, 2001, the Railroad advised Sommers and Pulice that it would conduct an investigative hearing to determine their involvement in the Heavener vandalism. James D. Freeman held an investigative hearing on August 21, 2001. Freeman issued his findings three days later. He concluded that the evidence at the investigative hearing substantiated that Sommers and Pulice vandalized the Railroad's equipment around the time of the 1997 wildcat strike.

Freeman found that the vandalism violated the Railroad's General Code of Operating Rules, including Rule 1.6, Items 1, 2, 4, 8, Rule 1.9, and Rule 1.23, which prohibit desertion from duty, making false reports or statements, concealing facts concerning matters under investigation and serious violations of the law, as well as unauthorized alterations to equipment.

The Railroad consequently discharged Pulice and Sommers on

August 24, ...

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