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Brotherhood of Maintenance of Way Employees Division/IBT v. Norfolk Southern Ry. Co.

United States District Court, N.D. Illinois, Eastern Division

October 11, 2012

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES DIVISION/IBT, Petitioner,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, Respondent.

Page 584

Harry William Zanville, San Diego, CA, William Liasson Phillips, Chicago, IL, for Petitioner.

James Stanton Whitehead, Sidley Austin LLP, Chicago, IL, for Respondent.

MEMORANDUM OPINION AND ORDER

VIRGINIA M. KENDALL, District Judge.

This case arises out of an arbitration Award made by Special Board of Adjustment No. 1048, sustaining the termination of Norfolk Southern Railway Company employee Steven L. Kawa. Kawa is represented by the Brotherhood of Maintenance of Way Employees Division/IBT, which has petitioned this Court to vacate the arbitration Award entered against Kawa and remand the case to the Special Board of Adjustment. The Railway Labor Act confers jurisdiction upon this Court to review Special Board of Adjustment awards. See 45 U.S.C. § 153 First (q). Mindful that " the scope of judicial review of Adjustment Board decisions is among the narrowest known to the law," Union Pac. R.R. v. Sheehan, 439 U.S. 89, 90, 99 S.Ct. 399, 58 L.Ed.2d 354 (1978), the Act empowers this Court to set aside an award in only three very narrow circumstances. See Id. at 93, 99 S.Ct. 399 (an RLA arbitration award may be set aside " only for the three reasons specified [in § 3 First (q) ]. We have time and again emphasized that this statutory language means just what it says." ). Those circumstances are: (1) failure of the Board to follow the requirements of the Act; (2) failure of the award to conform or confine itself within the scope of the Board's jurisdiction; and (3) fraud or corruption by a member of the Board making the award. See 45 U.S.C. § 153 First (q).

This case involves the third basis upon which this Court may vacate and remand an award by a Special Board of Adjustment: for fraud or corruption by a member of the Board. The Petitioner in this case alleges that the carrier's partisan Board member committed fraud within the meaning of that term in the Act by failing to disclose to the other members of the Board that certain evidence used in the on-the-property disciplinary hearing was allegedly fraudulent or baseless, or alternatively, that the carrier's partisan Board member committed fraud by failing to undertake an independent investigation of the evidence and its author.

The Union and the Railway each moved for summary judgment, both claiming that

Page 585

each is entitled to judgement as a matter of law in its respective favor. For the reasons set forth below, the Court denies the Brotherhood of Maintenance of Way Employees Division/IBT's Motion for Summary Judgment and grants Norfolk Southern Railway Company's Motion for Summary Judgment. The Award of the Special Board of Adjustment No. 1048 sustaining the discharge of Steven L. Kawa cannot be set aside under the narrow standard of review set forth by Section 3 First (q) of the Railway Labor Act and it is therefore entitled to deference by this Court.

I. The Undisputed Material Facts

Norfolk Southern Railway Company (hereafter " NSR" ) is a " carrier" within the meaning of the Railway Labor Act (hereafter " RLA" ), 45 U.S.C. § 151 First. (BMWED 56.1 Resp. ¶ 1).[1] NSR employees in the maintenance of way craft are represented by the Brotherhood of Maintenance of Way Employees Division/International Brotherhood of Teamsters (hereafter " BMWED" ). ( 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 NSR employees represented by BMWED. ( 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 NRS system, and Rule 40 of the collective bargaining agreement between BMWED and another NSR predecessor, the Southern Railway Company, which applies on the former Southern Railway properties. ( Id. ¶ 4). The SDR provides simply 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

Page 586

their record without a fair and impartial investigation." ( Id. ¶ 5).[2] The employee must be given not less than ten days' advance notice of the investigation hearing setting forth the precise charges against the employee. ( Id. ). A written transcript of statements taken at the investigation must be made and provided to BMWED. ( Id. ). The employee may be represented at the investigation by a duly authorized BMWED official. ( Id. ). Neither NSR nor BMWED or its members are permitted to have outside lawyers participate in the on-property disciplinary hearings. (NSR Add'l 56.1 Resp. ¶ 19). The SDR provides that an employee may appeal from an adverse disciplinary decision, initially to the highest designated NSR officer. (BMWED 56.1 Resp. ¶ 5). If the matter cannot be resolved, 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 " SBA" ) under RLA § 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. ¶ 6). One SBA has been designated SBA No. 1048 by the National Mediation Board. ( Id. ). NSR and BMWED have selected Richard K. Hanft to serve as the Chairman and Neutral Member of the three-member SBA No. 1048. BMWED selects the Employee Member of the Board. ( Id. ). 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 the Board. ( Id. ). Kerby has been a management employee of NSR for 23 years in the NSR Labor Relations Department, with responsibility for maintenance crafts. (NSR 56.1 Resp. ¶ 29). Kerby has a degree in civil engineering. ( Id. ¶ 30). The SBA Agreement does not impose any limitations on who can be selected by BMWED to serve as the Employee Member of the Board or who can be selected by NSR to serve as the Carrier Member of the Board. (BMWED 56.1 Resp. ¶ 6). The NSR Investigation and Discipline Policy Manual, dated January 1, 2009, prohibits an NSR officer who appears as a witness at an investigation from later acting as the appeals officer and deny a claim in the same case. (NSR 56.1 Resp. ¶ 32).

Steven S. Kawa began working for an NSR predecessor as a BMWED-represented maintenance of way employee on June 27, 1978. (BMWED 56.1 Resp. ¶ 7).

Page 587

Kawa had a positive disciplinary record prior to his dismissal from NSR. (NSR 56.1 Resp. ¶ 3). On July 6, 2009, Kawa reported that he sustained an injury while driving an NSR gang truck along Interstate 94 near Ypsilanti, Michigan. (BMWED 56.1 Resp. ¶ 8). He reported that when he drove the truck over an uneven patch of pavement his head " jammed against the ceiling of the truck," injuring him. ( Id. ). Kawa grumbled when the truck hit the uneven pavement, said something about it, and continued to drive approximately twenty miles further before asking a co-worker to drive for him because he said his neck and back were hurting. (NSR 56.1 Resp. ¶ 6). Kawa filed a federally required injury report when he received medical treatment for his injury. ( Id. ¶ 7). The driver's seat of the truck was not tethered to the truck, despite prior worker complaints and a warning on the tether. ( Id. ¶ 8). During the following days, NSR managers investigated Kawa's report and concluded that there was reason to believe he had exaggerated, if not completely fabricated, his injury. (BMWED 56.1 Resp. ¶ 9).[3]

On or around July 14, 2009, Kerby received a call from NSR Assistant Division Engineer Michael Difilippantonio asking him to review certain file materials concerning the Kawa incident and to let him know what Kerby thought might be an appropriate charge. ( Id. ¶ 10). On July 14, 2009, Stephen Whitaker, a clerk in NSR's Lake Division Superintendent's Office, sent Kerby an email with the Kawa injury file, which would have included the Form 22 injury report prepared by Kawa and the initial writeup from his supervisors concerning what happened in the incident. ( Id. ). In Kerby's capacity as Assistant Director of Labor Relations with responsibility for the maintenance of way craft, he was asked to provide suggested language for the charge letter that local management desired to be sent to Kawa based on information contained in the file. ( Id. ). This request was not atypical of the requests for advice made by local management to NSR's Labor Relations Department. ( Id. ).

On July 14, 2009, Kerby responded by email to Difilippantonio. ( Id. ¶ 11). Kerby outlined in his response two possible approaches for a charge. ( Id. ). First, he noted that if local management did not believe that Kawa had hit his head, they would have to rely heavily on the report of a consultant that Kerby had been informed was being retained to conduct a reconstruction of the incident and on the testimony of witnesses to the occurrence. ( Id. ). Second, he observed that if it was determined that Kawa had made contact with the truck ceiling, it might be determined that such contact was not sufficient to result in the degree of injury Kawa alleged. ( Id. ). Kerby provided Difilippantonio with suggested language for the Kawa charge letter. ( Id. ). [4] Subsequent

Page 588

to Kerby's communications with Difilippantonio, he understood that local management engaged Richard Hughes, a consulting engineer, to conduct a re-enactment of the Kawa incident and to prepare a report. ( Id. ¶ 12). Kerby did not see a copy of the Hughes report until after the Kawa hearing and did not know what it contained. ( Id. ).[5]

Kerby's only involvement in the Kawa matter prior to the disciplinary hearing was his response on July 14, 2009 to Difilippantonio's request for advice as to the charge(s) that might be brought against Kawa and the language to be used in the charge letter. ( Id. ¶ 13). Kerby did not form any opinions at that time concerning Kawa's alleged conduct because he had not seen the evidence that would be presented by NSR and by Kawa's representatives at the disciplinary hearing. ( Id. ). Kerby's involvement in helping to shape the charges against Kawa consisted solely of the advice he gave to Difilippantonio. ( Id. ). This was the kind of advice routinely given by him and others in the Labor Relations Department upon request from local management. ( Id. ). Kerby played no role in the aggregation of evidence against Kawa. ( Id. ). The selection of evidence— both the witness testimony and the documentary evidence— that would be submitted at the disciplinary hearing was made solely by Kawa's local managers. ( Id. )

On July 20, 2009, 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. ¶ 14). The investigation hearing was conducted by Assistant Division Engineer David A. Griffith. ( Id. ¶ 15). Kawa attended the hearing, represented by his union representative Jack David, Vice Chairman, Affiliated Systems Federation. ( Id. ). Testimony concerning the circumstances of Kawa's alleged injury was given by Rich Klinkbeil, Division Engineer; Jim Barnard, Foreman; Ray Ransom, Trackman; John Carmona, Trackman; Difilippantonio, Assistant Division Engineer; and Kawa. ( Id. ). Klinkbeil testified at the hearing that he had been told by the seat manufacturer that, if tethers were used, they would stop the seat from going forward but that the type of vehicle Kawa was driving is not the type of vehicle in which tethers were needed. (NSR 56.1 Resp. ¶ 19). Hughes testifies at his deposition that the tether controls vertical movement. ( Id. ¶ 24). Kerby testified at his deposition that he has not personally

Page 589

been aware of an NSR manager who did not tell the truth at an investigation hearing. ( Id. ¶ 28).

Among the exhibits introduced by NSR at the investigation hearing was a written report prepared by Richard T. Hughes, P.E., a consulting engineer. (BMWED 56.1 Resp. ¶ 16). Hughes is an expert in kinetics and vehicular accident reconstruction. (NSR 56.1 Resp. ¶ 52). Hughes is not an expert in biomechanics or applied medicine. ( Id. ). Hughes has taken courses in accident reconstruction. ( Id. ). Hughes is not a member of any accident reconstruction associations, holds no certificate from any organization as an accident reconstruction expert, has not published peer reviewed engineering research-based articles related to injuries received in low speed/low g force impact automobile or train accidents, and does not possess accident reconstruction analysis software. ( Id. ). NSR has used reports from Hughes at on-property disciplinary hearings in ten cases during the years 2009-2011. ( Id. ¶ 9). Each of the employees who were the subject of those hearings was ultimately dismissed based on the totality of the evidence presented at their hearings and their appeals were subsequently denied. ( Id. ).

The Hughes report in the Kawa case set forth the results of tests that Hughes conducted based on his re-creation of the incident that allegedly injured Kawa. (BMWED 56.1 Resp. ¶ 16). Based on these tests, Hughes concluded that the injuries alleged by Kawa had " an extremely remote chance of occurring as described by him." ( Id. ).[6] NSR did not inform Kawa or BMWED of the Hughes report prior to the investigation hearing. (NSR 56.1 Resp. ¶ 11). Hughes was not present at the hearing. (BMWED 56.1 Resp. ¶ 16). Kawa's BMWED representatives objected to entering the Hughes report into the record. (NSR 56.1 Resp. ¶ 13). Hughes was willing to testify for NSR live or by telephone. ( Id. ¶ 14). David objected that without Hughes present, any statements by him would be unfair as David would not have an opportunity to question Hughes himself. ( Id. ¶ 56). David asked NSR to make Hughes available for questioning, but was told he would not be available that day. ( Id. ). When David asked if it was possible to get Hughes there for the investigation and was told no, the hearing officer ...


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