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Isaac Cox v. Grand Trunk Western Railroad Co.

September 7, 2012

ISAAC COX, PLAINTIFF,
v.
GRAND TRUNK WESTERN RAILROAD CO., AND BROTHERHOOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN (BLET) AND DIVISION 33 OF THE BLET, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan H. Lefkow

MEMORANDUM OPINION AND ORDER

This case presents a claim of race discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1981, against an employer and a union which are parties to a collective bargaining agreement covering the plaintiff's employment. Plaintiff, Isaac Cox, has sued his former employer, Grand Trunk Western Railroad Company ("GTW"), the Brotherhood of Locomotive Engineers and Trainmen ("BLET"), and its Local Division 33. All defendants have moved for summary judgment. For the reasons stated below, the motions for summary judgment of defendant GTW [#68],*fn1 of defendant BLET [#63], and of defendant Division 33 [#65] are all granted.*fn2

BACKGROUND*fn3

Isaac Cox, who identifies himself as African-American, was hired by the GTW on January 21, 2008 as a locomotive engineer and he worked in that position until his termination in April 2009.*fn4 Throughout his employment, his work was satisfactory to GTW. Under a collective bargaining agreement between GTW and the BLET ("the CBA"), GTW was a "union shop," meaning it was obliged to dismiss an employee who failed to join a railway union and pay dues once the employee's probationary period ended.

The bylaws of BLET generally allocate authority among three divisions: the National Division, the General Committee of Adjustment (the "GCA"), and local divisions such as Division 33. The GCA is responsible for the six local divisions operating under the CBA and has the authority to make and interpret the CBA, rules, rates of pay, and working conditions for the crafts it represents. UDSOF, App. A, Ex. 1; UDSOF 7. John Karakian was chairman of the GCA. He was responsible for enforcing the union shop provision of the CBA on behalf of BLET.

Division 33 is a local union. At all relevant times, its chairman was Terry Tindol, whose principal responsibility was to adjust claims and grievances within Division 33. Division 33's secretary-treasurer was James Bess. Bess was responsible for timely completion and filing of membership reports and for remitting dues to BLET on behalf of members whose dues were not paid through payroll deduction. Tindol, Bess, and Karakian received pay for performing their union duties, presumably from their respective divisions.

Cox had previously worked for Union Pacific Railroad, where he was a member of BLET and current in his dues. He resigned to accept employment with GTW. Since he was changing employers but not unions, Cox believed he was still a member of BLET at GTW. Pl. Ex. 4, Cox Dep. at 65. Before January 2009, he was never contacted by a union representative about joining a union and was not told by any union or GTW representative that he had the responsibility to initiate having union dues taken out of his check. Cox Dep. at 54--55, 66.*fn5 Although dues should have been deducted after Cox's 60-day probationary period (his seniority date, April 7, 2008),*fn6 they were not. Cox knew that dues were not being deducted from his paycheck, but he assumed it was due to delay in processing. This belief was based on conversations he had with several co-workers sometime before August 2008*fn7 in which they expressed frustration that union dues were not being deducted from their paychecks after months of employment at GTW. One co-worker, Terry Damsch, asked Cox if his dues were being deducted and he responded "No." From these conversations, Cox "assumed that was the norm," implying that he assumed that eventually his dues would be deducted. Cox Dep. at 78.*fn8 Unlike his co-workers, Cox took no action to inform GTW or the union that his dues were not being taken out of his paycheck. Neither did Cox go to Bess to pay his dues outside payroll deduction.

During November or December, Karakian asked Tindol for an updated seniority list. Tindol Dep. at 12. Karakian explained that there was a discrepancy between his list of engineers, the National Division's list, and GTW's list. Tindol obtained a list from Bess and passed it along to Karakian. Tindol Dep. at 13. Bess brought to Tindol's attention that Cox was on the list of engineers but not on file as paying dues. Tindol Dep. at 15.

Bess talked to Cox by telephone about the situation on January 24, 2009.*fn9 Cox told Bess he thought that he was already a member (by virtue of his previous employment). Bess sent Cox a membership application and told him to return it. After a series of follow-up conversations, Bess encountered Cox on a train and gave him another application. He waited until Cox filled it out. By this time ten months had passed since Cox's seniority date.

Bess asked Tindol whether Cox could catch up on dues by authorizing double payments from his paycheck. Tindol said he would have to check with Karakian. Karakian expressed reservations, authorizing Tindol to proceed (with the paperwork, Tindol assumed) but that he would get back to Tindol. Tindol conveyed the message to Bess. Tindol Dep. at 18--20. Ultimately, Karakian rejected the catch up arrangement as well as Cox's offer (through Bess or Tindol) to pay the full amount by check. Tindol Dep. at 21--23. Although Karakian professed that it was against the union's bylaws, no specific provision of the bylaws prohibited BLET or Division 33 from accepting either method. Nonetheless, GCA (meaning Karakian) has nearly complete autonomy over its own collective bargaining affairs, provided that its actions are consistent with BLET bylaws and policy. UDSOF 7.

There have been occasions, however, when arrangements were made for extra dues to be deducted from an employee's paycheck to bring the member current. Tindol Dep. at 30; Pl. Ex. 1, Bess Dep. at 36. For example, three white employees, Terry Damsch (seniority date September 14, 2007), Gabriel Maldonado (seniority date September 14, 2007), and Frank Ripoli (seniority date November 10, 2007) Pl. Exs. 39, 44, submitted applications to Division 33 for membership to begin when their probationary periods ended, and Bess notified GTW to start making dues reductions from their pay. GTW failed to initiate the deductions until months later (in August 2008) after efforts by these individuals to contact the union and Bess's assistance in contacting the employer to get it done. These employees, although delinquent, were allowed to catch up through payroll deduction. For Damsch and Maldonado, ten months had passed before their dues payments began.

On March 6, Karakian notified GTW that Cox was to be fired due to his "brazen non-compliance" since April 4, 2008 with the union shop requirement. UDSOF 31. Once notified that he was to be fired, Cox requested a hearing, to which he was entitled under the CBA. At the hearing, held March 27, Karakian and GTW's Labor Relations Director Timothy Rice were present with Cox and Tindol. This was the first time Karakian had met Cox and the first time Karakian learned Cox's race.*fn10 The issue at the hearing was whether Cox could demonstrate that he had in fact complied with the union shop agreement. Although this issue was not subject to dispute, Cox hoped to persuade Karakian and Rice that, having joined the union, he could pay his dues in full and be excused from past non-compliance. This effort was unavailing, as Rice notified Cox by letter dated April 6 that he had failed to demonstrate compliance and his employment was therefore terminated. UDSOF 36.

Harold D. Mayer, who is white, was also a locomotive engineer for GTW. At the same time that Cox was terminated, Karakian ordered Mayer's termination for his "brazen non-compliance" with the requirement that he be a union member. UDSOF 29, App. B, Cox Dep. Ex. 4, (CN0006). In terminating Mayer, Karakian explained that Mayer "drop[ped] out of BLET" and quit paying dues in June, 2008. Because he did not join a different union, he was in violation of the CBA. Mayer did not request a hearing. He wrote to Rice requesting that he "take care of this matter and get me reinstated." Rice denied his request on the ...


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