United States District Court, N.D. Illinois, Eastern Division
BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMENT, GENERAL COMMITTEE OF ADJUSTMENT, UNION PACIFIC WESTERN LINES AND PACIFIC HARBOR LINES, Plaintiff,
UNION PACIFIC RAILROAD CO., Defendant.
MEMORANDUM OPINION AND ORDER
Robert Blakey United States District Judge.
dispute concerns the dismissal of R.J. Griff
(“Griff”), a former employee with Defendant Union
Pacific Railroad Company (“Defendant” or
“Union Pacific”). Griff, through his
representatives at Plaintiff Brotherhood of Locomotive
Engineers and Trainmen, General Committee of Adjustment,
Union Pacific Western Lines and Pacific Harbor Lines
(“Plaintiff” or “BLET”), contended
that his dismissal from Union Pacific was procedurally
improper and submitted this dispute to the First Division of
the National Railroad Adjustment Board (the
“Board” or “NRAB”). The Board
ultimately denied Plaintiff's claim and upheld his
response to the Board's decision, Plaintiff initiated
this lawsuit, bringing claims pursuant to the Railway Labor
Act, 45 U.S.C. § 151 et seq.
(“RLA”), and the Due Process Clause of the Fifth
Amendment to the United States Constitution.  at 5-7. The
parties have filed cross-motions for summary judgment, and,
for the reasons explained below, Defendant's motion 
is granted while Plaintiff's motion  is denied.
1984 through 2005, Griff was a “craft” employee
at Union Pacific represented by BLET, eventually becoming a
Locomotive Engineer.  at 2. When he was a Locomotive
Engineer, the terms and conditions of Griff's employment
were governed by the parties' collective bargaining
agreements. Id. at 6. Two particular provisions of
the collective bargaining agreements are salient here: the
“Discipline Rule” and “Article 9”
(collectively, the “CBA Provisions”).
Id. at 6-7.
The CBA Provisions
the Discipline Rule, “Locomotive Engineers will not be
disciplined without first being given a fair and impartial
investigation.” [12-1] at 135. Practically, this
provision guarantees that a Locomotive Engineer: (1) will be
apprised “of the specific charges against him or
her”; (2) is entitled to “representation by a
[BLET] representative” in a “recorded and
transcribed” investigatory hearing; (3) will be
“afforded the opportunity to examine or cross examine
all witnesses” who testify at the investigatory
hearing; and (4) will receive Union Pacific's written
decision on the merits within ten days of the investigatory
hearing.  at 2-3 (citing [12-1] at 135-37). If the
Locomotive Engineer disagrees with Union Pacific's
disciplinary decision, BLET may challenge it through the
CBA's grievance-and-appeal process and the RLA,
culminating in binding arbitration before the Board.
Id. at 3.
9, meanwhile, provides that any employee (including any
Locomotive Engineer) promoted to a supervisory position after
July 1995 can either: (1) continue to “accumulate
seniority [in their original craft position] so long as
he/she pays a fee [to BLET] no greater than the applicable
current membership dues”; or (2) decline to pay a fee
to BLET, in which case “he/she shall retain but cease
to accumulate seniority” in their original craft
position. Id. at 4; see also [12-1] at 132.
Griff's Promotion and Termination
December 2005, Griff was promoted by Union Pacific to
“Manager of Operating Practices.”  at 2. In
September 2011, Union Pacific promoted Griff again, this time
to “Manager of Road Operations.” Id. The
parties agree that both of these positions are
“supervisory” and “at-will, ” such
that they “are not covered by any collective bargaining
agreement between the parties.”  at 2. Griff
nevertheless elected, pursuant to Article 9, to continue to
pay BLET dues, and he accordingly continued to accrue
seniority as a Locomotive Engineer while working in a
supervisory capacity. Id. at 3.
announcement dated August 12, 2012, Union Pacific's
former Chief Operating Officer Lance Fritz advised
supervisory employees (including Griff) that any
“non-agreement employee who knowingly provides false
information and/or who willingly fabricates reporting will be
terminated from the Company-employees who have seniority will
not be allowed to return to their seniority.” [12-1] at
2-3; [23-1] at 5.
February 27, 2013, Union Pacific terminated Griff's
employment “for falsifying performance evaluations and
check rides of employees.” [12-1] at 3, 106. On April
1, 2013, Plaintiff appealed Griff's termination by way of
a letter to Union Pacific's Assistant Director of Labor
Relations. Id. at 112-15. BLET challenged Union
Pacific's termination of Griff on two separate grounds.
First, Plaintiff argued that, as a dues-paying BLET member,
he could not be fired absent the “fair and
impartial” investigatory hearing described in the
Discipline Rule. Id. Plaintiff further contended
that Griff had the right to exercise his seniority privileges
as a Locomotive Engineer under Article 9. Id.
Pacific denied Plaintiff's appeal eleven days later.
Id. at 117. Defendant explained that Griff
“was not part of a collective bargaining unit or
covered by a collective bargaining agreement at the time of
his discharge.” Id. Accordingly, Union Pacific
“had no obligation to hold an investigative hearing or
permit Mr. Griff to exercise his seniority to an agreement
September 2013, Plaintiff filed its Notice of Intent to
appeal Union Pacific's decision to the Board.
Id. at 35.
The Board's Decision
submission to the Board, Plaintiff insisted that, under
“the plain contractual language” of the CBA
Provisions, he was entitled to both a full investigatory
hearing and reinstatement as a Locomotive Engineer. See
generally Id . at 89-104 (“So long as an employee
holds seniority under a collectively bargained agreement, he
cannot be ‘at-will.' . . . The Carrier breached the
contract by failing to provide the Claimant and the
Organization notice and an investigation hearing.”).
Union Pacific predictably disagreed, arguing that Griff's
employment was not “governed by the provisions of the
Engineer's collective bargaining agreement, ” such
that he “was not due a hearing nor does he have the
right to exercise his seniority back to the craft.”
Id. at 9.
January 28, 2016, the Board denied BLET's claim and
upheld Griff's termination. See generally Id .
at 1-6. In reaching its decision, the Board first quoted
directly from Article 9. Id. at 2. The Board then
explained that its interpretation of Article 9 was informed
by its own arbitral precedent, as this was “not a case
of first impression” for “either the Board or
these Parties.” Id. at 3. In fact,
“several” cases previously decided by the Board
held that “covered employees who are promoted to
management positions, but continue to accrue craft seniority,
may be terminated while performing their management duties
for engaging in wrongdoing without resort to their
contractual due process protections.” Id.
Board also noted that its earlier decisions were animated by
cogent policy concerns also present here:
If the Carrier has terminated a non-covered employee for
cause, and did this unilaterally, this employee, even if he
possesses seniority in a contractually covered craft, may not
then seek to invoke the contractual protection that inheres
to members of his craft. This is so because when the Carrier
permanently terminated the non-bargaining unit employee from
service for cause, the Carrier severed the employment
relationship permanently, albeit unilaterally, and this
employee, although he retained seniority in a covered craft,
cannot invoke the contractual protection of that craft,
because at this time he was no longer an employee. The
employee relationship having been irrevocably ended for
cause, there is no longer any valid basis upon which the
employee's seniority can operate. The Board is led to