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Brotherhood of Locomotive Engineers and Trainmen v. Union Pacific Railroad Co.

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

January 9, 2018

BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN (GENERAL COMMITTEE OF ADJUSTMENT, WESTERN LINES), Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          Ronald A. Guzmán United States District Judge

         Before the Court are the parties' cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons explained below, the Court grants defendant's motion for summary judgment and denies plaintiff's motion for summary judgment.

         BACKGROUND

         Plaintiff, Brotherhood of Locomotive Engineers and Trainmen (General Committee of Adjustment, Western Lines) (the “Union”) brought this suit under the Railway Labor Act (the “RLA”), 45 U.S.C. § 153 First (q), and the Fifth Amendment, seeking to set aside an arbitration award rendered by the National Railroad Adjustment Board (the “Board”) in a dispute between defendant Union Pacific Railroad Company (the “Railroad”) and a Union member and former Railroad employee, locomotive engineer J.J. Andrade. In its award, the Board concluded that the Railroad had failed to produce sufficient evidence at an investigatory hearing to sustain its charge that Andrade had engaged in immoral conduct on April 23, 2012, but the Board declined to order Andrade's reinstatement or compensation for time lost because shortly after the hearing, Andrade had pleaded nolo contendere to, and was convicted of, a sex crime based on the same conduct. (ECF No. 1-1.)

         The material facts are not in dispute. On May 4, 2012, the Railroad issued a “Notice of Investigation” to Andrade. In pertinent part, it stated as follows:

Please report . . . on Friday, May 11, 2012, for investigation and hearing to develop the facts and determine your responsibility, if any, concerning the following alleged incident: Information received on April 24, 2012, revealed that while employed as an Engineer on the Colton Reserve board you allegedly conducted yourself in an immoral and illicit manner that is unbecoming an employee when you were arrested on Monday, April 23, 2012, and incarcerated in the Rancho Cucamonga, California, West Valley Detention Center jail for alleged felony charges of kidnapping, sexual assault, and raping a woman on April 23, 2012. In addition, you are charged with allegedly being unable to protect your employment while on your reserve board assignment since April 23, 2012, as a result of being incarcerated. These alleged actions indicate a possible violation of Rule 1.6, and Rule 1.15, as contained in the General Code of Operating Rules, effective April 7, 2010 . . . .

(ECF No. 13-1, Agreed Arbitration R. at 113 (emphasis omitted).)

         The Railroad's Operating Rule 1.6 states that employees must not be “immoral, ” among other things, and that “[a]ny act of hostility, misconduct, or willful disregard or negligence affecting the interest of the company or its employees is cause for dismissal.” (Id. at 126.) Operating Rule 1.15 states that employees must report for duty at the designated time and place and that their continued failure to “protect their employment” is cause for dismissal. (Id. at 127.)

         In addition to these Railroad rules, Andrade's employment was also subject to collective bargaining agreements (“CBAs”) that included the parties' “System Agreement - Discipline Rule” (the “Discipline Rule”), which outlines the procedures under which Union members can be disciplined. (Id. at 275-278.) Under the Discipline Rule, a Railroad employee who has received a notice of investigation is entitled to a “fair and impartial, ” “recorded and transcribed” hearing (called an “investigation”), which is to be held no later than ten days after the date of the notice, unless postponed for good cause. (Discipline Rule ¶¶ 2, 5, 8.)

         Andrade's original May 11, 2012 investigatory hearing was postponed multiple times over several months at his and the Union's request, to allow Andrade to tend to his criminal defense. In late October, Andrade requested that the Railroad hold the hearing, so it was held on October 29, 2012. At the hearing, the Railroad's representative introduced a copy of an April 24, 2012 news article from the Desert Dispatch in Barstow, California, which had appeared on the internet and in which it was reported that Andrade had been arrested and “accused of rape, oral copulation by force and kidnapping to commit rape.” (R. at 63-64, 152.) The article stated that Andrade had approached the victim, offered to buy her cigarettes, “threatened and intimidated” her, forced her into his truck, and taken her to his home, where he “raped and sexually assaulted her.” (Id. at 152.) The article further stated that after police interviewed Andrade and searched his residence, they “found evidence supporting the victim's allegations.” (Id.) In addition, the Railroad introduced the online comments that had been posted in connection with the article (which included comments by those purporting to be coworkers or former coworkers). (Id. at 64, 153-62.)

         The Railroad then submitted evidence that in relation to the April incident, Andrade had been charged with two felonies: rape by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury (Cal. Penal Code § 261(a)(2)) and oral copulation by the same means (Cal. Penal Code § 288a(c)(2)(A)). (R. at 65-66.) The Railroad also introduced evidence of Andrade's criminal history that it had recently discovered, including that in 2008, Andrade had been charged with willful harm to a child and contact with a minor with the intent to commit a sexual offense, and he had pleaded nolo contendere to the former. (Id. at 69-72.)

         Andrade was examined at the hearing, and he made an oral statement. (Id. at 95-106.) He did not specifically deny any of the allegations concerning the April incident, but emphasized that the criminal charges against him were still pending and that he had not been found guilty of any felony. Andrade characterized the Railroad's evidence as “hearsay” and pointed out that the newspaper article was incorrect in that he had never been charged with kidnapping. In closing argument, Andrade's union representative argued that the Railroad had failed to offer any competent evidence to support its allegation that Andrade had violated any rules, and he repeatedly emphasized that Andrade had pleaded not guilty, had not been convicted of any criminal offense, and had not yet had his day in court. (Id. at 106-111.)

         On November 6, 2012, the General Superintendent of the Railroad issued a notice in which he sustained the charge of immoral conduct and terminated Andrade's employment. (Id. at 128.) Two days later, on November 8, Andrade pleaded nolo contendere to the misdemeanor offense of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator (Cal. Penal Code § 261.5(b)), and the felony rape and oral-copulation charges were dismissed pursuant to the plea. (Id. at 22-24.) The state-court case record states that the “violation date” for the conviction is April 23, 2012. (Id. at 24.) The court minutes state: “Court accepts plea of nolo contendere and finds defendant guilty based on plea.” (Id. at 22.) They further reflect that Andrade was sentenced to 23 days' time served in the San Bernardino County Jail with 36 months' probation and that he was ordered to “not annoy, molest, attack, strike, threaten, harass, stalk, sexually assault, batter nor disturb the peace of the victim” and to comply with all protective orders the victim had obtained. (Id. at 23.)

         On January 2, 2013, the Union appealed Andrade's termination. In the appeal, the Union argued that Andrade was terminated based solely on “alleged charges” and further argued that “the charges were dismissed” in the case the Railroad “relied on to support [its] reason for dismissal.” (Id. at 11 (emphasis omitted).) The appeal did not mention Andrade's plea to or conviction on the misdemeanor charge. The Railroad denied the appeal, stating among other things in its denial letter that it had learned that ...


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