Brotherhood of Locomotive Engineers and Trainmen v. Wisconsin Central Ltd.

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BROTHERHOOD OF LOCOMOTIVE )

ENGINEERS AND TRAINMEN, )

)

Petitioner, ) No. 1:22-CV-02435

)

v. )

) Judge Edmond E. Chang

WISCONSIN CENTRAL, LTD., )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

A railroad-employee union, the Brotherhood of Locomotive Engineers and

Trainmen, petitioned this Court to enforce the arbitration award of a Public Law

Board reinstating Jason King to his employment as a train engineer. R. 1, Pl.’s Pet.

In its counterclaim, Wisconsin Central petitioned this court to vacate the Public Law

Board’s award. R. 9, Def.’s Answer and Pet. Wisconsin Central now moves for sum-

mary judgment to set aside the award. R. 16, Def.’s Mot. BLET (the union’s acronym)

cross-moves for summary judgment to enforce the award and for damages, attorneys’

fees, and costs. R. 21, Pl.’s Mot. and Opp.1

I. Background

When operating a train near Fremont, Wisconsin, Jason King, a locomotive

engineer, found himself at the bottom of a ditch next to the train. R. 21-2, Pl.’s Resp.

DSOF ¶¶ 7, 9; R. 18-2, Middleton Decl. Exh. A, Hearing Tr. at 16. The parties agree

1The Court has subject-matter jurisdiction under 28 U.S.C. § 1331, and 45 U.S.C.

§ 153 First (p), First (q), and Second.

that the train was approaching a bridge that required travel at 35 mph, that the

train’s “positive train control system” (known as PTC in train-operations parlance)

reported that the train had to reduce speed within 45 seconds as it approached the

bridge, and that when the PTC system gave a 30-second warning for reducing speed,

King was not in the cab. Pl.’s Resp. DSOF ¶ 8; Hearing Tr. at 49–50. Keith Ahlstrom,

the train conductor, was in the cab but was not qualified operate the engine, so when

the PTC system warning went off, he decided to allow the system to automatically

stop the train instead of applying the emergency break, because he did not know

where King was. Id.

Wisconsin Central initiated an investigatory hearing and then fired King for

abandoning the controls of the locomotive, leaving the cab, and then jumping or pur-

posefully falling from the locomotive. Pl.’s Resp. DSOF ¶ 16; R. 18-2, DSOF Exh. 2,

Middleton Decl. ¶ 3. BLET and King allege that he accidentally fell off the train and

was wrongfully terminated. R. 21-3, PSOF ¶¶ 2, 3; R. 21-5, PSOF Exh. 2, Ruef Decl.

¶ 5. BLET’s chairman appealed the dismissal in accordance with the terms of their

collective bargaining agreement, Wisconsin Central denied the appeal, and the par-

ties then attended a conference which likewise did not resolve BLET’s claim. Pl.’s

Resp. DSOF ¶¶ 17–19; Middleton Decl. ¶ 4. BLET then submitted its claim for reso-

lution by a Public Law Board, an arbitral body that resolves labor disputes based on

the “on property” record and does not take new evidence. Pl.’s Resp. DSOF ¶¶ 20, 21;

Middleton Decl. ¶ 5. Public Law Boards are convened to resolve a particular claim

and are governed by the terms of the parties’ arbitration Agreement signed by both

Wisconsin Central and BLET. Pl.’s Resp. DSOF ¶ 22; R. 18-3, DSOF Exh. 3.

On November 8, 2021, the assigned Arbitrator of the dispute informed the par-

ties that she preferred to receive electronic copies of their submissions. R. 18, DSOF

¶ 22; Middleton Decl. ¶ 6. The next day, Wisconsin Central uploaded its submission

to Google Drive. DSOF ¶ 23; Middleton Decl. ¶¶ 7, 8. The uploaded submission in-

cluded a nine-page argument, which cited to Exhibits A through F—but only part of

Exhibit A (which was the investigation hearing transcript) was uploaded along with

the argument. Id. Wisconsin Central alleges that it mistakenly did not upload the

remainder of Exhibit A and any parts of Exhibits B through F. Id. BLET for its part

only uploaded its argument, though the union’s argument likewise cited to parts of

the hearing transcript not uploaded to Google Drive; according to the union, it was

“standard practice” for Wisconsin Central, and not BLET, to submit the hearing tran-

script to the Public Law Board. Pl.’s Resp. DSOF ¶ 26; R. 18-3, DSOF Exh. 4, BLET

Answer to Counterclaim ¶ 27.

After the uploading mishap, around two weeks later on November 22, 2021,

the parties presented their initial arguments to the Board. DSOF ¶ 27; Middleton

Decl. ¶ 9. After argument, BLET objected to Wisconsin Central’s incomplete eviden-

tiary submission.2 DSOF ¶ 28; Middleton Decl. ¶ 9. Wisconsin Central alleges this

2Wisconsin Central alleges that BLET objected that Wisconsin Central had not

“properly submitted the entire record.” DSOF ¶ 28. BLET alleges that that it objected “to the

inclusion of the additional documents post-argument … because they were not submitted at

all and therefore were not a part of the record.” Pl.’s Resp. DSOF ¶ 28.

was the first time that its attorney for the arbitration, Antoinette Middleton, realized

her error in uploading the submission, and she requested permission to upload it im-

mediately.3 DSOF ¶ 29; Middleton Decl. ¶ 10. BLET objected and the Arbitrator de-

nied Wisconsin Central’s request to provide the exhibits. Id.

The Arbitrator then circulated a draft award to the parties for review, which

proposed to disregard the investigation hearing transcript:

[A]n incomplete transcript of the November 18, 2020, investigation hearing

was included in the record presented to this Board. Circular 1 makes clear that

the submission by the Carrier must include all evidence and data in support of

its position. The Carrier in a discipline case bears the burden of proof and that

burden of proof cannot be met when evidence is not presented.

DSOF ¶ 30; R. 18-2, Middleton Decl. Exh. C. As a result of this “fatal procedural

flaw,” the draft award would reach “no decision as to the merits of the claim” and

would order Wisconsin Central to reinstate King. Id. In response, attorney Middleton

requested a second session, during which Wisconsin Central alleges that she argued

that Circular 1 (a reference to 29 C.F.R. §§ 301.1-301.9) only applies to National Rail-

road Adjustment Board proceedings, and not to Public Law Boards. DSOF ¶¶ 31, 32;

Middleton Decl. ¶ 12. Wisconsin Central also alleges that Middleton again requested

that the Public Law Board accept and review the full on-property record. Id. The Ar-

bitrator circulated a revised and final award, which omitted the reference to Circular

1, but maintained that “the record is devoid of evidence that [King] jumped or

3BLET alleges that Middleton did not state at the hearing that documents she in-

tended to upload were not uploaded, PSOF ¶ 7; Ruef Decl. ¶ 13, but the Court notes that

BLET admitted to Wisconsin Central’s statement that “Middleton offered to submit a com-

plete copy of WC’s submission immediately” at the hearing. Pl.’s Resp. DSOF ¶ 29.

purposefully fell from the locomotive. There is nothing in the record showing that he

concealed facts known to him.” R. 18-2, Middleton Decl. Exh. D. Because the “Carrier

has the burden of proof to show the employee was guilty of the offense” the Arbitrator

found that the Board “ha[d] no choice other than to sustain the claim.” Id.

The parties’ Public Law Board Agreement provides certain terms on submis-

sions to the Board. Section H states that:

Should either Party decide to file a written submission, said submission must

be in the form of one written and one electronic copy. Each Party must ex-

change their written submissions containing all of the relevant facts upon

which they rely together with all documentary evidence in exhibit form, the

Agreement or rules thereof involved, if any, and their arguments in support of

their positions at least fourteen (14) days prior to the hearing, either by First

Class mail or overnight delivery. Each written submissions shall be limited to

the issues raised by the Parties during the handling of the dispute on the prop-

erty. … Each party shall send (1) copy of each of their submissions to the Neu-

tral Member of the Board, at the same time they are exchanged to each Board

Member.

DSOF Exh. 3, Agreement § H. Section J states that at the hearing before the Board,

“[t]he Parties may present either orally or in writing, rebuttal statements only to the

written submission. The Board shall have authority to request the production of ad-

ditional evidence from either party.”4 Id. § J.

Here in federal court, Wisconsin Central moves for summary judgment, argu-

ing that the Public Law Board acted outside of its jurisdiction and violated Wisconsin

Central’s due process rights when it decided the dispute without considering

4This is in contrast to 29 C.F.R. § 301.7(b), where parties “are … charged with the

duty and responsibility of including in their original written submission, all known, relevant,

argumentative facts and documentary evidence,” without specifying that the National Rail-

road Adjustment Board may request additional evidence.

Wisconsin Central’s accidentally omitted evidence. Def.’s Mem. at 14–15. BLET cross-

moves for summary judgment and requests enforcement of King’s reinstatement and

an award of damages, attorneys’ fees, and costs. Pl.’s Mem. at 13–15.

II. Analysis

Summary judgment must be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if “the

evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating sum-

mary judgment motions, courts must view the facts and draw reasonable inferences

in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378

(2007). The Court may not weigh conflicting evidence or make credibility determina-

tions, Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011),

and must consider only evidence that can “be presented in a form that would be ad-

missible in evidence.” Fed. R. Civ. P. 56(c)(2). The party seeking summary judgment

has the initial burden of showing that there is no genuine dispute and that they are

entitled to judgment as a matter of law. Carmichael v. Village of Palatine, 605 F.3d

451, 460 (7th Cir. 2010); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);

Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). If this burden is met, the ad-

verse party must then “set forth specific facts showing that there is a genuine issue

for trial.” Anderson, 477 U.S. at 256.

In deciding cross motions for summary judgment, the Court views the facts in

the light most favorable to the respective non-moving party. See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). So when the Court evalu-

ates Wisconsin Central’s summary judgment motion, BLET gets the benefit of rea-

sonable inferences; conversely, when evaluating BLET’s motion, the Court gives Wis-

consin Central the benefit of the doubt.

District court review of arbitration awards under the Railway Labor Act is

“among the narrowest known to the law.” Atchison, Topeka & Santa Fe Ry. Co. v.

Buell, 480 U.S. 557, 563 (1987) (cleaned up).5 An award may only be set aside by the

district court for: (1) failure to comply with the Railway Labor Act; (2) failure to “con-

form or confine itself, to matters within the scope of the division’s jurisdiction”; or (3)

“fraud or corruption.” 45 U.S.C. § 153 First (q). If a carrier does not comply with an

award, then a district court must enforce the award or may set it aside, but only on

those three statutory grounds. § 153 First (p). These provisions apply to decisions of

the Public Law Board, which is an optional dispute mechanism created under the

Railway Labor Act as an alternative to the National Railroad Adjustment Board.

§ 153 Second, § 157; see Bhd. of Locomotive Eng’rs v. Atchison, Topeka & Santa Fe

Ry. Co., 768 F.2d 914, 918 (7th Cir. 1985). The Seventh Circuit has also recognized a

fourth ground for review of arbitration awards, namely, when a party is denied con-

stitutional due process. See, e.g., Pokuta v. Trans World Airlines, Inc., 191 F.3d 834,

5This opinion uses (cleaned up) to indicate that internal quotation marks, alterations,

and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations,

18 Journal of Appellate Practice and Process 143 (2017).

839 (7th Cir. 1999); see also Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs & Train-

men, 558 U.S. 67, 75 (2009) (acknowledging without deciding the circuit split on

whether the RLA precludes judicial review of due process violations). Courts should

not reach a due process question, however, if the arbitration award may be set aside

on statutory grounds. Union Pac. R.R. Co., 558 U.S. at 80–81.

A. Jurisdiction

Arbitration awards may be set aside under the Railway Labor Act if the Public

Law Board does not “conform, or confine itself, to matters within the scope of [its]

jurisdiction.” 45 U.S.C. § 153 First (q). Jurisdiction means “adjudicatory competence”

and “the power to decide, one way or the other.” Johnson v. CSX Transp., Inc., 343

Fed. Appx. 138, 139 (7th Cir. 2009). The Supreme Court has held that the Railway

Labor Act’s “instructions on party submissions—essentially pleading instructions—

are claim-processing, not jurisdictional, rules.” Union Pac. R.R. Co., 558 U.S. at 85.

In particular, the Supreme Court highlighted that the Act’s requirement to provide

“a full statement of the facts and all supporting data bearing upon the disputes” is

not a jurisdictional rule. Id. at 84–85 (cleaned up). An analogous rule in the parties’

arbitration agreement is at issue here: the requirement to submit all the evidence in

written submissions and the Public Law Board’s authority to request additional evi-

dence at the hearing. Def.’s Mem. at 12–13; DSOF Exh. 3, Agreement §§ H, J.

Although prior Seventh Circuit decisions have held that “[t]o remain within

the scope of its jurisdiction, the essence of the PLB’s decision must be contained in

the terms of the agreement between the union and the employer,” Lyons v. Norfolk &

Western Ry. Co., 163 F.3d 466, 469 (7th Cir. 1999), the Supreme Court’s more recent

clarifications on jurisdiction establish that the PLB’s decision to admit or exclude

evidence is not jurisdictional. Wisconsin Central contends that the award “does not

draw its essence” from the arbitration agreement because the PLB did not request

evidence in the form prescribed by Section H and did not exercise its authority to

request additional evidence under Section J. Def.’s Mem. at 12–13. But even if the

PLB misinterpreted the parties’ agreement’s rules on evidence, the PLB still had au-

thority to decide the question. See Union Pac. R.R. Co., 558 U.S. at 84–85. The PLB

thus did not act outside its jurisdiction when deciding not to admit Wisconsin Cen-

tral’s evidence at the hearing. This Court may not set aside the PLB’s award for fail-

ure to confine itself to its jurisdiction under 45 U.S.C. § 153 First (q).

B. Due Process

Having said that, the Seventh Circuit allows review of arbitration awards for

due process violations. See, e.g., Pokuta, 191 F.3d at 839; Bhd. of Locomotive Eng’rs

& Trainmen v. Union Pac. R.R. Co., 522 F.3d 746, 750 (7th Cir. 2008). “The require-

ments of due process are relaxed when the tribunal is an arbitral tribunal rather than

a court.” Bhd. of Locomotive Eng’rs & Trainmen v. Union Pac. R.R. Co., 905 F.3d 537,

542–43 (7th Cir. 2018) (cleaned up). The arbitrator must provide a “fundamentally

fair hearing” that “meets the minimal requirements of fairness—adequate notice, a

hearing on the evidence and an impartial decision.” Int’l Bhd. of Elec. Workers v. CSX

Transp., Inc., 446 F.3d 714, 720 (7th Cir. 2006). Arbitration decisions to admit or

exclude evidence under existing rules are generally within the Public Law Board’s

discretion and not reviewable. Bhd. of Locomotive Eng’rs & Trainmen, 522 F.3d at

750; United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 40 (1987). But the

Seventh Circuit instructs that arbitration decisions to admit or exclude evidence that

“impos[e] … a new procedural rule without adequate notice to the parties” may deny

the parties their “fair opportunity to be heard” and violate due process. Bhd. of Loco-

motive Eng’rs & Trainmen, 522 F.3d at 752. For example, when an arbitration board

dismissed a claim for lack of evidence of conferencing in the written submissions and

did not allow this evidence at the hearing—despite the parties’ agreement that con-

ferencing did happen and despite the lack of any prior rule requiring that the confer-

encing evidence be in the written submission—the Seventh Circuit held that the

award violated the party’s due process rights. Id. at 757–58.6

The parties’ agreement to arbitrate explicitly conferred authority on the Public

Law Board to request additional evidence at the hearing. DSOF Exh. 3, Agreement

§ J. Both parties were aware of the entire on-property record and both parties cited

to that record in their written submissions to the Board. Pl.’s Resp. DSOF ¶¶ 25, 26.

Wisconsin Central cited to parts of the investigation hearing transcript that were not

submitted (Exhibit A) and Exhibits B through F. 7 Id. Indeed, BLET too cited to parts

6The Supreme Court affirmed the Seventh Circuit’s decision but held that the case

should have been decided solely on statutory grounds, rather than statutory and constitu-

tional due process grounds. Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen,

558 U.S. 67, 80–81 (2009). But the discussion in the Seventh Circuit opinion remains persua-

sive for its rationale in determining how to apply the requirements of due process.

7The parties agree that Exhibit A as uploaded did not include the entire hearing tran-

script and hearing exhibits. Pl.’s Resp. DSOF ¶ 25; R. 18-2, Middleton Decl. Exh. B. Wisconsin

Central further alleges that Exhibits B through E were decisions of the National Railroad

Adjustment Board, and Exhibit F was King’s employee personal record. DSOF ¶ 23. BLET

of the hearing transcript that Wisconsin Central did not submit. Id. The omitted por-

tions of the hearing transcript included, crucially, King’s own testimony and an engi-

neering expert’s testimony about King’s fall, as well as the hearing exhibits. Pl’s Resp.

DSOF ¶ 25; R. 18-2 Middleton Decl. Exh. B. Despite this, the Public Law Board de-

cided that it could not request additional evidence from the parties and had “no

choice” but to find that Wisconsin Central did not meet its burden of proof. Middleton

Decl. Exh. D. That decision—the Board had “no choice”—created a new rule about

evidence without prior notice to the parties and that contradicted the terms of their

agreement, which gives the Board discretion to receive more evidence. This new rule

deprived Wisconsin Central of its fair opportunity to be heard on the evidence. The

same rationale would apply if it were BLET that had lost the arbitration because the

union had accidentally not submitted what each side assumed was submitted.

BLET’s argument that it would be unfair to admit the evidence at the hearing

because the parties’ agreement required all evidence to be included in the written

submissions is unconvincing. Pl.’s Mem. at 12–13. BLET had knowledge of the entire

on-property record before the arbitration proceeding and indeed expected the Public

Law Board to consider that evidence, as demonstrated by the union’s own citations

to the investigation hearing transcript in its written submission to the PLB. It is true

that the Seventh Circuit instructs that review of arbitration awards for due process

denies these allegations, because Wisconsin Central has not provided evidence supporting

the content of each of its exhibits as it intended to upload them. Pl.’s Resp. DSOF ¶ 23. But

the parties agree that the Public Law Board knew that the record was incomplete and found

that Wisconsin Central did not meet its burden of proof for that reason. Pl.’s Resp. DSOF

¶¶ 30, 34; Middleton Decl. Exhs. C, D.

violations is “exceptionally narrow”: courts should only consider whether the arbitra-

tor “interpreted the contract” and not whether they “erred” or even “grossly erred in

interpreting the contract.” Bhd. of Locomotive Eng’rs & Trainmen, 522 F.3d at 757

(cleaned up). Here, however, the PLB “create[d] a new requirement on its own,” id.,

namely, that it could not consider the evidence that both parties cited to in their briefs

because it was accidentally not uploaded to Google Drive. Yet the PLB had discre-

tionary authority arising from the parties’ agreement, which granted the PLB the

authority to request additional evidence at the hearing. DSOF Exh. 3, Agreement § J.

The PLB created a new rule without notice to the parties and thus violated Wisconsin

Central’s due process rights. Wisconsin Central’s motion for summary judgment is

granted.

C. Reinstatement, Damages, Fees, and Costs

Because Wisconsin Central’s motion for summary judgment is granted, BLET’s

cross-motion for the Court to enforce the arbitration award and order King’s rein-

statement is denied. BLET’s requests for damages, attorneys’ fees, and costs are also

denied for the same reason.

III. Conclusion

Wisconsin Central’s motion for summary judgment is granted. BLET’s cross-

motion for summary judgment is denied. The parties’ dispute is remanded to the Pub-

lic Law Board for further proceedings in accordance with this decision. See 45 U.S.C.

§ 153 First (q).

ENTERED:

s/Edmond E. Chang

Honorable Edmond E. Chang

United States District Judge

DATE: March 29, 2024