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Brotherhood of Maintenance of Way Employees Division/Ibt v. Norfolk Southern Railway Company

September 25, 2012

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES DIVISION/IBT, PLAINTIFF,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

A dispute has arisen between the Plaintiff, Brotherhood of Maintenance of Way Employees Division/IBT ("BMWED"), and the Defendant, Norfolk Southern Railway Company, under the Railway Labor Act, 45 U.S.C. § 151 et seq. regarding the collective bargaining agreements between them. BMWED is a union that represents Norfolk Southern Railway employees who serve in the maintenance of way craft. At issue is whether the Railway has the right under these agreements to use reports from third-party expert witnesses at the on-property disciplinary hearings it conducts concerning possible misconduct by BMWED-represented employees without having given notice or copies of such reports to the union in advance of the hearings and without bringing the experts to the hearings or otherwise making them available for questioning by the union. The union alleges that the carrier has violated the rights of its members under the existing collective bargaining agreements, which provide that union-represented employees may only be disciplined after a "fair and impartial investigation."

The union contends that the Railway's practices are neither fair nor impartial and that they violate its members' rights to "contractual due process," and in so doing violate Section 2 First of the Railway Labor Act, 45 U.S.C. § 152 First, which obligates a carrier to maintain agreements with the unions representing its employees. The Union asserts that this Court has the authority to declare the Railway in violation of the RLA and to permanently enjoin it from undertaking certain practices that it finds objectionable. Specifically, the Union objects to the lack of pre-hearing discovery and disclosure by the Railway and to the use of hearsay reports and statements, including expert reports, at the on-property disciplinary hearings it conducts.

The Railway contends that this is a minor dispute within the meaning of the RLA, 45 U.S.C. § 153 First (I), and that therefore it is subject to the exclusive and binding arbitral jurisdiction of the National Railroad Adjustment Board pursuant to Section 3 of the RLA, 45 U.S.C. § 153, or to exclusive and binding arbitration before adjustment Boards established by the carrier and the union pursuant to Section 3 Second of the RLA, 45 U.S.C. § 153 Second. Both parties moved for summary judgment. Norfolk Souther Railway is entitled to judgment as a matter of law for the reasons stated herein and therefore its Motion for Summary Judgment is granted.

I. The Undisputed Material Facts

The undisputed material facts submitted by the union are all supported solely by the Affidavit of Steven V. Powers, an Assistant to the President of the union.*fn1 Although Powers' affidavit states that he supervises all matters that appear before RLA arbitration boards, he fails to present any facts that show that he has personal knowledge of each of the hearings he is testifying regarding as required by Federal Rule of Civil Procedure 56(c)(4) ("An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated."). See Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 (7th Cir. 2008) ("The evidence supporting a factual assertion must represent admissible evidence."). Such testimony by Powers would be based on inadmissible hearsay in violation of Federal Rules of Evidence 801 and 802 or would violate Federal Rule of Evidence 1002. See Id. Furthermore, the factual assertions made by the union in paragraphs 3, 8 and17 are not relevant to any of the claims or defenses of the parties in this case. The statements of fact contained in paragraphs 20, 21, 22, 23 and 24 constitute statements of opinion and arguments, not statements of fact, contrary to Local Rule 56(a)(3). See Judson Atkinson Candies, Inc., 529 F.3d at 382 n. 2 ("It is inappropriate to make legal arguments in a Rule 56.1 statement of facts.

We have held that a district court has broad discretion to require strict compliance with Local Rule 56.1.") (internal citations omitted); Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) (a party's statement of material facts submitted pursuant to Local Rule 56.1 is improper where it fails to cite to the record and is "filled with irrelevant information, legal arguments, and conjecture."). The purpose of Local Rule 56.1 statements of facts is to identify the relevant admissible evidence supporting the material facts that each party contends require either the granting or the denial of summary judgment. See Markham v. White, 172 F.3d 486, 490 (7th Cir. 1999) (the local rules governing summary judgment "assist the court by organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side proposed to prove a disputed fact with admissible evidence.").

In addition, the union's Statement of Additional Facts That Require the Denial of Summary Judgment are taken verbatim from unsupported assertions in Powers's Supplemental Affidavit. They are nothing more than argumentative and conclusory assertions. Under Local Rule 56.1 it is improper for a litigant to include legal or factual conclusions, arguments, or conjecture in a statement of material facts or in a statement of additional material facts. See Judson Atkinson Candies, Inc., 529 F.3d at 382 n. 2; Cady, 467 F.3d at 1060. Furthermore, none of the additional statements of fact show that Powers has personal knowledge of, or is competent to testify to, these facts and therefore do not set out facts that would be admissible in evidence as required by Federal Rule of Civil Procedure 56(c)(4). Because the Union's Statement of Additional Facts is improperly argumentative and conclusory and not supported by admissible evidence it is fails to rebut the statements made by the Railway. See Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 527-529 (7th Cir. 2000) (upholding the district court's decision to strike a statement of facts in its entirety, rather than selectively, as a punishment for failing to comply with the local rules governing summary judgment by submitting facts that consisted of improper legal arguments).

The Railway is a "carrier" within the meaning of the Railway Labor Act (hereafter "the RLA"), 45 U.S.C. § 151 First. (BMWED 56.1 Resp. ¶ 1).*fn2 NSR employees in the maintenance of way craft are represented by the Brotherhood of Maintenance of Way EMPLOYEES Division/International Brotherhood of Teamsters. (Id. ¶ 2). BMWED is a "representative" of these NSR employees within the meaning of the RLA, 45 U.S.C. § 151 Sixth. (Id.). NSR and BMWED are parties to various collective bargaining agreements that set forth the wages, hours, working conditions, and other terms and conditions of employment of BMWED-represented NSR employees. (Id.).

In 2001, NSR and BMWED entered into a System Discipline Rule (hereafter "SDR"), which amended Rule 30 of the collective bargaining agreement between BMWED and an NSR predecessor, the Norfolk and Western Railway Company, which is applicable to the former Norfolk and Western Railway Company territories on the NSR system. (Id. ¶ 6). The SDR also amended Rule 40 of the collective bargaining agreement between BMWED and another NSR predecessor, the Southern Railway Company, which applies on the former Southern Railway Company properties. (Id.). The SDR provides that "an employee who has been in service more than sixty (60) calendar days shall not be disciplined or dismissed, nor will an unfavorable mark be placed upon their record without a fair and impartial investigation." (Id. ¶ 7).*fn3

A BMWED-represented employee who is under investigation by NSR must be given not less than ten days' advance notice of the investigation hearing setting forth the precise charges against the employee under investigation. (Id.). A written transcript of statements taken at the investigation hearing must be made and provided to BMWED. (Id.). The employee may be represented at the investigation hearing by a duly authorized BMWED official. (Id.). The SDR provides that an employee may appeal from an adverse disciplinary decision, initially to the highest designated NSR officer. (Id.). If the matter cannot be resolved at an initial appeal to the highest designated NSR officer, the SDR provides that an appeal may be taken to "a special board of adjustments" that "shall be established with jurisdiction over such disputes involving disciplinary matters resulting in dismissal, suspension or reprimand to provide expedited resolution of such disputes." (Id.).

Over the years NSR and BMWED have established several special Boards of adjustment (hereafter "SBAs") under RLA Section 3 Second (second para.), 45 U.S.C. § 153 Second (second para.), to issue final and binding arbitration awards resolving disputes arising from employee discipline. (Id. ¶ 8). For many years, Dennis L. Kerby, formerly Assistant Director of Labor Relations and Director Labor Relations and now Assistant Vice President Labor Relations, has served as the Carrier Member of these Boards. (Id.).

The NSR-BMWED SDR does not contain any requirement that either NSR or the union notify the other in advance of a disciplinary investigation hearing when that party intends to introduce written statements from third parties or reports from experts at the hearing. (Id. ¶ 9).*fn4 Nor does it contain any requirement that such written statements or expert reports be provided in advance of the hearing. (Id.). The SDR does not provide for any pre-hearing discovery. (Id.). Nor are any such requirements set forth in any other collective bargaining agreements between NSR and BMWED. (Id.). The NSR-BMWED SDR does not prescribe any rules concerning the nature, type, or form of evidence that may be submitted by either party or received into evidence by the hearing officer at a disciplinary investigation hearing. (Id. ¶ 10). In particular, the SDR does not prohibit the submission or receipt of hearsay evidence. (Id.). Nor does the SDR require that evidence may be received only from witnesses who are present at the hearing and who can be subjected to questioning. (Id.). Nor are any such requirements set forth in any other collective bargaining agreements between NSR and BMWED. (Id.).

On several occasions NSR has retained Richard T. Hughes, P.E., a consulting engineer, to prepare accident reconstruction reports that it has submitted as evidence in disciplinary investigation hearings for certain maintenance of way employees, including A.D. Gibson, Steven Kawa, W. L. Orr, and D. A. Glista, all of whom were represented by BMWED. (Id. ¶ 11).*fn5 Hughes has not appeared either in person or by telephone at any of these hearings. (Id.). The hearing officers at these hearings have noted for the record any objections BMWED or its members have made to NSR's consideration of the Hughes reports. (Id.). Since the BMWED-NSR SDR entitles neither NSR nor BMWED to advance notice of witnesses, NSR has not provided such advance notice or copies of the Hughes reports to BMWED in these cases. (Id.).

On January 29, 2009, NSR conducted an investigation hearing to determine whether BMWED-represented employee A.D. Gibson had made false and conflicting statements concerning how he had sustained an alleged on-duty injury on October 16, 2008. (Id. ¶ 12). At the on-property hearing, NSR introduced a written report from Hughes in which Hughes concluded that the injury could not have happened as Gibson had reported. (Id.).

Following the hearing, NSR dismissed Gibson from service and BMWED filed an appeal. (Id. ¶ 13). In its written submission to SBA No. 1049, BMWED expressly objected to the receipt of the Hughes report into evidence at the investigation hearing, arguing, "The problem here is that although the accuracy of the test report was challenged during the investigation, Mr. Hughes was not available for cross examination. This fact was duly noted and objected to during the investigation." (Id.). In its Award No. 193 SBA No. 1049 upheld Gibson's dismissal. (Id. ¶ 14). In particular, the SBA approved NSR's decision to credit the Hughes report in making its disciplinary decision, stating:

We further defer to the decision on the property to credit the consulting engineer's forensic report. Although the Organization questioned some of the assumptions made by the consulting engineer, such as the assumption that the Claimant did not report any pain or discomfort on the day of the incident, we find the overall conclusion and several key bases for that conclusion, such as the absence of damage to the hard hat and the inconsistency between a blow to the hard hat and the diagnosis of cervical strain, to be unrefuted. We conclude that Carrier proved the charge by substantial evidence. (Id.).*fn6 On July 6, 2009, Steven Kawa reported that he had sustained an injury while driving an NSR gang truck along Interstate 94 near Ypsilanti, Michigan. (Id. ¶ 15). On July 20, 2009, NSR Assistant Division Engineer M. J. Difilippantonio sent Kawa a letter summoning him to an investigation hearing, to be conducted pursuant to the SDR on July 31, 2009, "to determine your responsibility, if any, in connection with making false statements regarding your alleged incident and claim of injury to your back, neck, and head on July 6, 2009." (Id.). The investigation hearing was conducted by Assistant Division Engineer David A. Griffith. (Id. ¶ 16).*fn7 Kawa attended the hearing, represented by his union representative Jack David, Vice Chairman, Affiliated Systems Federation. (Id.). Among the exhibits introduced by NSR at the investigation hearing was a written report prepared by Hughes. (Id.). The Hughes report set forth the results of tests Hughes had conducted based on his re-creation of the incident that allegedly injured Kawa. (Id.). Based on these tests, Hughes concluded that the likelihood that Kawa had suffered the injury he had reported was "extremely remote." (Id.). Hughes was not present at the hearing. (Id.). Following the hearing, NSR dismissed Kawa from its employment. (Id.).

On August 31, 2009, David sent a letter to A.J. Licate, NSR's Director Labor Relations, appealing NSR's decision to dismiss Kawa pursuant to the appellate procedure in the SDR. (Id. ¶ 17).*fn8 In the appeal letter, David did not contend that NSR's introduction of the Hughes Report at the investigation hearing violated the SDR or otherwise object to its receipt by the hearing officer into evidence. (Id.). David did not object to the fact that NSR had not given BMWED notice in advance of the hearing that it would introduce the report. David did note that Hughes had not been present at the hearing and had not been available for questioning, but he did not argue that as a result the receipt of the Hughes report into evidence violated the SDR. (Id.). David merely asserted, "Since Mr. Hughes was not available for the Organization to question at the hearing, I can only assume that this exhibit 'G' [the Hughes report] will not have any bearing on the outcome of this investigation." (Id.). With the appeal letter, David included a written statement of August 28, 2009 by Tony Machetta, Service Manager of Old Dominion Truck Leasing. (Id.). The statement concerned the purpose of tether straps on air seats. (Id.). BMWED did not notify NSR that it would be submitting such a statement in advance of sending the appeal letter, nor did BMWED proffer Machetta for questioning by NSR. (Id.).

On September 24, 2009, Kerby denied BMWED's appeal in the Kawa matter in a letter he sent to BMWED General Chairman T.R. McCoy, Jr. over the signature of Licate. (Id. ¶ 18). Because David did not allege in his appeal letter that submission or receipt of the Hughes report violated the SDR, Kerby did not address that subject in his letter denying Kawa's appeal. (Id.). On December 15, 2009, in accordance with the appellate procedures of the SDR, Kerby participated in a conference with David at which the Kawa appeal was discussed. (Id. ¶ 19). The parties were unable to resolve the dispute during the conference, so they agreed to submit the Kawa appeal to SBA No. 1048 for a final and binding arbitral decision. (Id.).

In accordance with standard practice and Section 6 of the SBA, both NSR and BMWED filled written submissions with SBA No. 1048, setting forth their respective positions on the Kawa matter. (Id. ¶ 20).*fn9 In its submission to the SBA, BMWED argued, "It is submitted that the Carrier has not presented a single shred of evidence, much less clear and convincing evidence, that Claimant Kawa gave any false information in connection with the incident or his injury." (Id. ¶ 23). BMWED argued in its appeal to SBA No. 1048 that the Hughes Report was "meaningless in this dispute" and should be given no weight for several reasons relating to alleged deficiencies in the way Hughes had conducted the re-enactment of the incident. (Id.). However, BMWED did not argue that NSR had violated Kawa's right to a fair and impartial investigation under the SDR by failing to provide BMWED with a copy of the Hughes report prior to, or by submitting it at, the investigation hearing or that the NSR hearing officer had violated Kawa's rights under the SDR by receiving the report into evidence. (Id.).

On February 25, 2010, SBA No. 1048 met in Chicago for a hearing to discuss the issues in the Kawa appeal. (Id. ¶ 21). Kerby participated in that hearing as the Carrier Member of the Board. (Id.).*fn10 BMWED's Public Law Board Coordinator, T.W. Kreke, participated as the Employee Member. (Id.). Richard K. Hanft participated as the Chairman and the Neutral Member of the Board. (Id.). On May 10, 2010, Hanft issued his proposed Award (SBA No. 1048, Award No. 185) in the Kawa matter, which became final under Section 11 of the SBA when it was signed by the other members of the Board on June 18, 2010. (Id. ¶ 22). The Board ruled, "We conclude that the finding on the property that Claimant made a false statement concerning an on-duty injury is supported by substantial evidence." (Id.). The Board upheld the punishment of dismissal, stating, "falsifying a claim of an on-duty injury is a very serious offense that generally warrants dismissal. In the record presented, we cannot say that the penalty assessed was arbitrary, capricious or excessive. Thus, the claim is denied." (Id.). Because BMWED had not argued in its submission to SBA No. 1048 that NSR's failure to provide it with a copy of the Hughes report, or NSR's submission of the report at the investigation hearing, or the receipt of the report by the hearing officer had violated Kawa's rights under the SDR or otherwise, the Award did not address these issues. (Id. ¶ 23).

On August 26, 2010, three and a half months after the Kawa Award became final, BMWED's Board member submitted a Dissent to Award No. 185. (Id. ¶ 24). In this dissent, BMWED argued for the first time that the Hughes report "was a travesty of both procedural and substantive due process." (Id.). In particular, BMWED argued for the first time:

Finally, the junk science opinion paper submitted by the so-called expert was presented at the hearing as naked hearsay. That is, over the vociferous objection of the Union, the hearing officer allowed the Carrier to enter the opinion paper into the record even though its author was not present for cross-examination as to his credentials or methodology. And, to make matters worse, the Carrier failed to even inform the Union of the existence of the opinion paper, much less provide a copy, in advance of the hearing.

This was a blatant case of prosecution by ambush and any fair reading of the transcript establishes that the Claimant did not receive a fair and impartial investigation. (Id.)

On September 21, 2010, Kerby responded to the Dissent to Award No. 185. (Id. ΒΆ 25). In particular he responded to BMWED's assertion that NSR had deprived Kawa of a fair and impartial hearing ...


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