International Association of Sheet Metal, Air, Rail and Transportation Workers - Transportation Division v. Union Pacific Railroad Company

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

INTERNATIONAL ASSOCIATION )

OF SHEET METAL, AIR, RAIL AND )

TRANSPORTATION WORKERS, )

TRANSPORTATION DIVISION, )

)

Petitioner, )

No. 1:20-CV-04318

)

v. )

Judge John J. Tharp, Jr.

)

UNION PACIFIC RAILROAD CO.,

)

)

Defendant.

)

MEMORANDUM OPINION AND ORDER

This case involves two arbitration awards, one issued in favor of L.G. Collins and the

other in favor of K.B. Savage. Both gentlemen are employed by Defendant Union Pacific

Railroad Company (“Union Pacific”), as a conductor and an engineer, respectively, and are

represented by their labor union, Petitioner Transportation Division of the International

Association of Sheet Metal, Air, Rail and Transportation Workers (“SMART-TD”). SMART-TD

claims Union Pacific has refused to comply with either award and, pursuant to the Railway

Labor Act, seeks an order to enforce them. Am. Pet. ¶¶ 10–11, 18–19, ECF No. 11. Union

Pacific now moves to dismiss the claim involving Mr. Savage for lack of subject-matter

jurisdiction. For the below reasons, the motion is denied.

RAILWAY LABOR ACT

The Railway Labor Act (RLA) governs labor relations within the railroad industry.

45 U.S.C. §§ 151–65. It provides for the orderly settlement of labor disputes as a means to

prevent interruptions of interstate commerce. Id. § 151a. Labor disputes within the railroad

industry are categorized into two broad classes of controversy, and the RLA deals with each

category in distinct ways. Elgin, Joliet & E. Ry. Co. v. Burley, 325 U.S. 711, 722–23 (1945).

The first category comprises disputes over changes to “rates of pay, rules, or working

conditions . . . .” 45 U.S.C. § 152 Seventh. These so-called “major disputes” relate to “the

formation of collective agreements or efforts to secure them. They arise where there is no such

agreement or where it is sought to change the terms of one . . . .” Burley, 325 U.S. at 723. In the

event of a major dispute, the RLA imposes upon the parties an elaborate procedure for

negotiation, mediation, voluntary arbitration, and conciliation. See Bhd. of R.R. Trainmen v.

Jacksonville Terminal Co., 394 U.S. 369, 378 (1969) (summarizing the RLA’s major dispute

framework). Until this protracted process is exhausted, parties must maintain the status quo (i.e.,

no strikes). Id. at 378–80; see, e.g., 45 U.S.C. § 156 (“working conditions shall not be altered”

during major disputes).1

The second category of disputes—and the one relevant to this case—involves disputes

over the “interpretation or application of agreements concerning rates of pay, rules, or working

conditions . . . .” 45 U.S.C. § 152 Sixth. These so-called “minor disputes” relate either to “the

meaning or proper application of a particular provision” within a pre-existing collective

agreement. Burley, 325 U.S. at 723. Thus, minor disputes involve the assertion of rights claimed

to have already vested, whereas major disputes pertain to the acquisition of future rights. Id. A

dispute is considered minor if an asserted right may be “arguably justified by the terms of the

parties’ collective-bargaining agreement.” Consol. Rail Corp. v. Ry. Lab. Executives’ Ass’n, 491

U.S. 299, 307 (1989). In the event of a minor dispute, the RLA requires the parties to negotiate

1 The RLA’s status quo obligation is embodied by multiple provisions, each applicable to

different stages of the major dispute framework. See 45 U.S.C. §§ 155, 156, and 160. The district

court is empowered to enjoin violations of these provisions without the customary showing of

irreparable injury. Consol. Rail Corp. v. Ry. Lab. Executives’ Ass’n, 491 U.S. 299, 303 (1989).

and, if necessary, submit to compulsory arbitration before a National Railroad Adjustment

Board, whose binding award settles the dispute. 45 U.S.C. § 153 First (i), (m). Parties may also

establish by voluntary agreement their own special adjustment boards (known as Public Law

Boards) to fulfill the RLA’s arbitration requirement. 45 U.S.C. § 153 Second; 29 C.F.R. § 1207.

Awards issued by either the National Railroad Adjustment Board or a Public Law Board

are final. 45 U.S.C. § 153 First (m), Second. Nonetheless, aggrieved parties may petition the

district court to intervene in limited ways. A losing party may ask the court to set the award aside

based on, and only on, a finding that the Board violated the RLA, exceeded the scope of its

jurisdiction, or committed fraud. 45 U.S.C. § 153 First (p); see Union Pac. R.R. Co. v. Sheehan,

439 U.S. 89, 91 (1978) (characterizing judicial review of awards under the RLA as “among the

narrowest known to the law”). A prevailing party may also ask the court (assuming a carrier does

not comply with an award) to enforce it. 45 U.S.C. § 153 First (p). Finally, either party may ask

the court to remand the award and direct further proceedings if the award is incomplete or vague.

Id. § 153 First (q); Ethyl Corp. v. United Steelworkers, 768 F.2d 180, 187 (7th Cir. 1985).

FACTUAL BACKGROUND

Union Pacific has a three-strike attendance policy. Full-time employees who violate the

policy three times (with each violation occurring within three years of the preceding violation)

are permanently dismissed. Ex. 2 to Powell Decl. 1–2, ECF No. 7-1. This is what happened to

Mr. Savage. Union Pacific assessed Mr. Savage to be in violation of the attendance policy in

March 2014, then again in April 2015, and a third time in September 2017. Powell Decl. ¶¶ 9–

11, ECF No. 7-1. Union Pacific dismissed Mr. Savage on September 8, 2017. Id. ¶ 11.

In accordance with the RLA’s minor dispute procedure and via two separate arbitration

proceedings, Mr. Savage appealed. First, Mr. Savage disputed the assessment of his second

attendance policy violation. Ultimately, the National Railroad Adjustment Board found that

Union Pacific was aware of but did not consider Mr. Savage’s qualification under the Family and

Medical Leave Act in its investigation of the absences that underpinned Mr. Savage’s second

violation. Ex. B. of Am. Pet. 2–3, ECF No. 11-2.2 This, the Board concluded, was unreasonable;

and so, it issued an award sustaining Mr. Savage’s claim. Id. at 1, 3 (Award No. 29212; the

“Savage Award”). The relief provided by this award is the subject of the dispute addressed in

this opinion. In a second proceeding, Mr. Savage disputed the assessment of his third violation.

This time, a Public Law Board found Union Pacific’s assessment to be reasonable and denied

Mr. Savage’s claim to remove the violation. Ex. 2 to Powell Decl. 1–3, ECF No. 7-1 (Award No.

104 of Public Law Board No. 7329).

Because the Savage Award removed one of Mr. Savage’s three attendance policy

violations, his permanent dismissal was no longer justified under the three-strike policy; and so,

Union Pacific returned him to work on July 5, 2018. Powell Decl. ¶ 14, ECF No. 7-1. In

compliance with the award, Union Pacific also paid him for the time he lost while attending

Union Pacific’s formal investigation of his now-vacated second violation (i.e., one day’s wages).

Id. ¶ 13. Additionally, Union Pacific paid Mr. Savage back pay for the time period between his

dismissal and reinstatement less the compensation he received through outside employment

during the same period. Id. ¶ 14. These actions, Mr. Savage acknowledges, fully satisfied the

Savage Award save for one exception: Union Pacific’s reduction of his back pay based on his

outside earnings, he says, violated the Savage Award and Union Pacific’s collective-bargaining

agreement. Am. Pet. ¶ 18, ECF No. 11. For this reason, SMART-TD, a labor union representing

2 The Family and Medical Leave Act entitles eligible employees of covered employers to

take unpaid, job-protected leave for specified family and medical reasons. See 29 U.S.C.

§§ 2601–54.

train service employees, petitioned this Court under § 153 First (p) for enforcement of the

Savage Award (i.e., to collect payment of Mr. Savage’s partially withheld back pay).

Union Pacific has moved to dismiss for lack of subject-matter jurisdiction pursuant to

Federal Rule of Civil Procedure 12(b)(1). It claims this Court lacks jurisdiction under § 153

First (p) to enforce the Savage Award because it has fully complied with the award’s clear terms

or, in the alternative, because the award is ambiguous and therefore unenforceable. SMART-TD

responds that Union Pacific has contravened the award’s unequivocal requirement to compensate

Mr. Savage for all wages and benefits lost as a result of the improper assessment of the second

attendance policy violation. Mem. in Opp’n to Mot. to Dismiss 7, ECF No. 13 (“The Award

sustaining Mr. Savage’s claim which resulted in his reinstatement is unambiguous . . . .”). In the

alternative, SMART-TD argues that if interpretation of the award is necessary, a remand under

§ 153 First (q) (instead of dismissal) is the proper remedy.

DISCUSSION

When a dispute arises as to the interpretation of an arbitration award, the National

Railroad Adjustment Board, upon request of either party, has a duty to interpret the award. 45

U.S.C. § 153 First (m). These interpretive disputes are themselves “minor disputes” under the

RLA which “the Board must resolve without judicial aid or interference.” Bhd. of Maint. of Way

Emps. v. Burlington N. R.R. Co., 24 F.3d 937, 938 (7th Cir. 1994). For this reason, the judicial

duty to enforce an arbitration award under § 153 First (p) “is neither a duty nor a license to

interpret it.” Bhd. Ry. Carmen Div. v. Atchison, Topeka & Santa Fe Ry. Co., 956 F.2d 156, 160

(7th Cir. 1992). Hence, the underlying interpretive question in this case—whether the Savage

Award is ambiguous and therefore requires interpretation—subsumes all others.

The precise question presented is this: Is the Savage Award ambiguous as to whether

Union Pacific may or may not reduce Mr. Savage’s back pay entitlement by the amount he

earned through outside employment while improperly dismissed? This is a factual, rather than

facial, challenge to the court’s subject matter jurisdiction and it is therefore proper to look

beyond SMART-TD’s allegations and weigh any evidence submitted on the matter. Apex

Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009). If the award is not

ambiguous, subject-matter jurisdiction under § 153 First (p) exists to enforce the award so long

as SMART-TD has sufficiently alleged a basis to conclude Union Pacific has not complied with

the award’s clear terms.3 If the award is ambiguous, the question devolves into whether a remand

under § 153 First (q) is appropriate despite a lack of subject-matter jurisdiction under § 153

First (p).

The Savage Award’s literal award statement is succinct. It states: “Claim sustained.”

Savage Award 3, ECF No. 11-2.4 The award statement, then, plainly incorporates the Savage

3 Given that interpretive disputes regarding awards are minor disputes of which the RLA

precludes judicial adjudication, the jurisdictional inquiry here hinges on a finding of ambiguity.

Union Pacific’s claim of ambiguity, then, is properly asserted via a Rule 12(b)(1) motion. Union

Pacific’s alternative claim that it has complied with the Savage Award, however, contains no

jurisdictional inquiry; subject-matter jurisdiction inarguably exists under § 153 First (p) to

enforce awards. Therefore, its assertion via a Rule 12(b)(1) motion is inapposite and more

appropriately brought via a Rule 12(b)(6) motion. Despite this minor procedural infirmity, this

Court considers the claim under the present 12(b)(1) motion for the sake of judicial efficiency.

The petitioner is not prejudiced because, in this instance, the Rule 12(b)(1) and Rule 12(b)(6)

standards are equivalent. See Silha v. ACT, Inc., 807 F.3d 169, 174 (7th Cir. 2015) (“[W]hen

evaluating a facial challenge to subject matter jurisdiction under Rule 12(b)(1), a court should

use Twombly–Iqbal’s ‘plausibility’ requirement, which is the same standard used to evaluate

facial challenges to claims under Rule 12(b)(6).”).

4 The award is also accompanied by an order requiring “that an award favorable to the

Claimant(s) be made.” Id. Neither party suggests that this order supports their respective

contentions about whether the award is ambiguous.

Award’s claim statement by reference (and sustains it in its entirety).5 The claim statement is

therefore the focus of the ambiguity inquiry. It states in full:

Claim of Seattle Engineer K B Savage for removal of a First

[Second] Offense notation under Carrier’s attendance policy from

his personal record, with compensation for all lost time and

benefits as a result of this matter, including but not limited to time

lost while attending the Investigation, all wage equivalents to

which [he is] entitled, vacation benefits, and all insurance benefits

and monetary loss for such coverage while improperly disciplined.

Id. at 1 (emphasis added).6

This statement speaks in the broadest terms, awarding Mr. Savage “compensation for all

lost time . . . .” Id. (emphasis added). It conveys no caveats, conditions, or exceptions; nor is

there cause to infer any. It possesses no evidence of internal contradiction or implied terms, nor

does it appear to ascribe special (rather than plain) meaning to any word or phrase. In short, it is

clear.

Union Pacific contends the award must expressly disclaim back pay offsets in order to be

clear. But why? The Board need not disclaim every conceivable deduction of Mr. Savage’s

compensation when its intended compensation is all-inclusive. Accordingly, courts routinely

assume back pay offsets are not included in awards unless the Board specifically says they are.

See, e.g., Auto. Mechs. Loc. 701 v. Joe Mitchell Buick, Inc., 930 F.2d 576, 578 (7th Cir. 1991)

(“It is settled that arbitrators have discretion to decide whether lost earnings should be offset by

5 This is a common construction of sustaining awards. See, e.g., Smart Transp. Div. v. Ne.

Ill. Reg’l Commuter R.R. Corp., 2015 WL 1593082, at *1 (N.D. Ill. Apr. 6, 2015); Bhd. of

Locomotive Eng’rs & Trainmen v. Burlington N. Santa Fe Ry. Co., 925 F. Supp. 2d 1252, 1256

(D. Wyo. 2013).

6 The Savage Award’s claim statement errantly refers to Mr. Savage’s “First Offense”

rather than his second. Savage Award 1, ECF No. 11-2. The award’s findings, however,

substantively address and expressly reference Mr. Savage’s “Second Offense.” Id. at 1–3. Union

Pacific implicitly acknowledges that this typographical error within the claim statement is

inconsequential. See Mem. in Supp. of Mot. to Dismiss 7, ECF No. 7.

interim earnings or a failure to mitigate, so that their silence on such issues means that no such

offsets are to be made.”); Bhd. of R.R. Signalmen v. Louisville & Nashville R.R. Co., 688 F.2d

535, 538 (7th Cir. 1982) (“[W]e must assume that if the Board wanted the amount paid [to the

employee] reduced by his sickness benefits and disability annuity, it would have said so in the

award.”).7

Union Pacific further attempts to obfuscate the award’s plain meaning by arguing that the

Board did not address Mr. Savage’s dismissal when issuing the Savage Award. Because Mr.

Savage had not yet been dismissed when he appealed his second attendance policy violation, the

only “lost time” the Board could have meant, according to Union Pacific, was the time lost while

attending the formal investigation of his second attendance policy violation.

Union Pacific explains that the Savage Award cannot be understood to extend to wages

lost as a result of Mr. Savage’s dismissal because he had not yet been dismissed when he

challenged his second attendance policy violation. By the time the award was issued, however,

7 Union Pacific cites a number of cases for the proposition that “[w]hen an award does

not instruct on how to calculate back pay or is unclear about the payment calculation, Courts

may not interpret such awards.” Reply in Supp. of Mot. to Dismiss 3, ECF No. 15. Two cited

cases dealt with patently deficient awards. See Miller v. Chi. & N. W. Transp. Co., 1988 WL

135553, at *3 (N.D. Ill. Dec. 9, 1988) (award simply commanded parties to “[a]pply the

[collective-bargaining agreement] and determine the damages”); Johnson v. CSX Transp., Inc.,

2011 WL 2619553, at *2 & n.2 (D. Md. June 30, 2011) (award simply commanded the carrier to

make “an award favorable to [the petitioner]”). Therefore, these cases are too factually dissimilar

to warrant analogy. Another case Union Pacific cites grappled with whether the common-law

doctrine of mitigation applied to an award issued to compensate for lost time. See Bhd. of R.R.

Signalmen v. Chi., Milwaukee, St. Paul & Pac. R.R. Co., 444 F.2d 1270, 1272–73 (7th Cir.

1971). However, the railroad raised the mitigation issue for the first time in court—a permissible

tactic prior to the RLA’s amendment in 1966—and so there was no certainty whether the Board

considered it. Id. Prior to 1966, “money awards” issued by the Board were not considered final

and binding on the parties. Bhd. of Locomotive Eng’rs v. Louisville & N. R.R. Co., 373 U.S. 33,

41 (1963). Hence, this case too is inapposite. Finally, United Transportation Union v. Patapsco

and Back Rivers Railroad Co., the last of Union Pacific’s cited support, dealt with an award

rendered ambiguous by conflicting statements issued by each of the Board’s three members. See

327 F. Supp. 608, 613–16 (D. Md. 1971). There is no similar evidence of ambiguity here.

Mr. Savage had been dismissed for nine months, so Union Pacific’s contention that the Board

could not have contemplated lost wages due to dismissal is not a given.8 And whether or not Mr.

Savage’s dismissal was known by the Board when it issued the Savage Award or whether

dismissal was simply a theoretical possibility, the Board chose not to exclude from its award

wages lost from a dismissal founded on the improper violation. Instead, it qualified its

comprehensive grant only insofar as to require that Mr. Savage’s “lost time” be “a result of this

matter.” Savage Award 1, ECF No. 11-2. Thus, any lost time causally connected to Mr. Savage’s

unreasonably assessed second attendance policy violation falls within the award’s ambit. And

Union Pacific concedes that Mr. Savage’s dismissal resulted from this violation. See Mem. in

Supp. of Mot. to Dismiss 9, ECF No. 7 (“[A]fter the issuance of the [Savage Award], Union

Pacific voluntarily agreed to reinstate Mr. Savage. But, that was only because the effect of the

[Savage Award] was to remove one of the offenses under the Attendance Policy on which the

decision to dismiss him had been based.”).9

Union Pacific’s argument is rendered even more obtuse in light of the Board’s

elaboration that Mr. Savage’s lost time “includ[es] but [is] not limited to time lost while

8 Although Mr. Savage appealed his second attendance policy violation prior to receiving

his third, the Board did not issue the Savage Award until nearly nine months after Union Pacific

dismissed Mr. Savage. See Mem. in Supp. of Mot. to Dismiss 8, ECF No. 7; Powell Decl. ¶ 11,

ECF No. 7-1; Savage Award 3, ECF No. 11-2. Nonetheless, the record does not reflect whether

details of Mr. Savage’s third violation and subsequent dismissal ever came to the Board’s notice

during its evaluation of Mr. Savage’s second violation.

9 Union Pacific’s assertion that it “voluntarily” reinstated Mr. Savage is beside the point.

The Savage Award’s express terms did not require Union Pacific to reinstate Mr. Savage (this

says nothing as to what Union Pacific’s attendance policy and collective-bargaining agreement

required it to do). What the Savage Award concerned was not reinstatement but the

unreasonableness of Mr. Savage’s second attendance policy violation and the compensation

owed him because of that finding. As for the latter, the award required compensation for all lost

time casually related to Mr. Savage’s unreasonably assessed violation. Union Pacific established

this causal link when it reinstated Mr. Savage because of the violation. It makes no casual

difference whether that reinstatement was “voluntary.”

attending the Investigation . . . .” Savage Award 1, ECF No. 11-2. If the Board had intended for

“time lost while attending the Investigation” to be the only time Mr. Savage was to be

compensated for, it would not have referenced it so clearly as an add-on.

In sum, Union Pacific must pay Mr. Savage back pay for time lost as a result of his

unreasonably assessed attendance policy violation. This is the Savage Award’s import, and it

contains no implied offset for outside employment while impermanently dismissed. Because this

import is unambiguous, subject-matter jurisdiction exists to enforce it. Union Pacific’s contrary

reading of the award is nothing more than a formula for evasion. It bears reminding that “[t]rivial

ambiguities in arbitration awards are not a ground for refusing to enforce them—here as

elsewhere, de minimis non curat lex—and even less so are trivial ambiguities manufactured by

the party seeking to use them to invalidate an award.” Bhd. of Locomotive Eng’rs & Trainmen v.

Union Pac. R.R. Co., 500 F.3d 591, 593 (7th Cir. 2007) (citations omitted; emphasis in original).

One final note: Recall that minor disputes are defined as disputes arising from the

“interpretation or application of [collective-bargaining] agreements . . . .” 45 U.S.C. § 152 Sixth

(emphasis added). Union Pacific reads this to say that courts may not cross-reference collective-

bargaining agreements as means to interpret arbitration awards without implicating a separate

minor dispute of which the court has no jurisdiction to adjudicate. Mem. in Supp. of Mot. to

Dismiss 10, ECF No. 7. That position is untenable and—more importantly—immaterial.10 In this

10 Courts have recognized that “[t]he Board, in fashioning relief, often sets out a general

principle of relief and lets the parties, or the court if necessary, apply it, filling in the details. An

award is not unenforceable merely because it requires such application.” Bhd. Ry. Carmen v. Belt

Ry. Co. of Chi., 658 F. Supp. 136, 139 (N.D. Ill. 1987). In the interest of prompt enforcement,

“[t]he court can and should resolve any issues of lack of clarity . . . unless those issues implicate

an area which is within the special expertise of the Board . . . .” Id. Accordingly, courts often use

collective-bargaining agreements to substantiate awards. See, e.g., Smart Transp. Div. v. Ne. Ill.

Reg’l Commuter R.R. Corp., 2015 WL 1593082, at *1 (N.D. Ill. Apr. 6, 2015); Miller v. Chi. &

case, the Savage Award need not be viewed through the lens of Union Pacific’s collective-

bargaining agreement because it is clear on its own terms. Thus, Union Pacific’s collective-

bargaining agreement has yet to be referenced in this opinion. But had the Court taken such step,

this case would be rendered even easier. Case in point: Union Pacific’s Addendum to its

Discipline Agreement, dated December 12, 2012, applies when “an employee has been

dismissed from service” and explains that

[t]he amount of pay for time lost due an employee as a result of a

sustaining [National Railroad Adjustment Board or Public Law

Board] Award will not be reduced by outside earnings during the

time period the employee was out of service.

Ex. 1 to Powell Decl. 1, 3–4, ECF No. 7-1 (emphasis added).

* * *

For the stated reasons, the Savage Award is unambiguous.11 Therefore, subject-matter

jurisdiction exists under § 153 First (p) to enforce it. The question thus turns to whether

SMART-TD has alleged a basis to conclude that Union Pacific has not complied. It has. See Am.

N. W. Transp. Co., 1988 WL 135553, at *2 (N.D. Ill. Dec. 9, 1988); United Transp. Union v.

Patapsco & Back Rivers R.R. Co., 327 F. Supp. 608, 616 (D. Md. 1971).

11 Because the Savage Award is unambiguous, this Court need not consider the question

of whether a remand (instead of dismissal) would have been proper upon a finding of ambiguity.

The Seventh Circuit, however, has spoken clearly on its preference: “If an arbitration award is

too ambiguous to be enforced, as ‘when the award fails to address a contingency that later arises

or when the award is susceptible to more than one interpretation,’ the district court should if

possible send the matter back to the original arbitration panel for clarification rather than put the

parties to the expense of starting from scratch with a new arbitration by a new panel.” Union

Pac. R.R. Co., 500 F.3d at 592 (quoting Green v. Ameritech Corp., 200 F.3d 967, 977 (6th Cir.

2000)).

Pet. § 18, ECF No. 11 (“[T]he Carrier ... has improperly deducted outside earnings... □□□□

Union Pacific’s motion is denied.

te [. ey

Date: March 21, 2022 John J. Tharp, Jr.

United States District Judge

12