Petition for Writ of Certiorari — Willis v. Atchison

In The

Supreme Court of the United States

-- @ —-

G. A. WILLIS,

THE ATCHISON, TOPEKA AND

SANTA FE RAILWAY COMPANY,

also known as Burlington Northern Santa Fe

rr ; dow

Re spondeni

_ C2 —— —

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

——— o--— ——

PETITION FOR A WRIT OF CERTIORARI

o- ——

Georce W. Vie II!

Counsel of Record

Mitts, SHIRLEY, EcCKEL &

Bassett, L.L.P.

400 Washington Building

2228 Mechanic Street

Galveston, Texas 77550

(409) 763-2341

Counsel for the Petitioner

COCKLE LAW BRIEF PRINTING CO 2

OR CALL COLLECT (402) 342-2831

— . Pel TORY,

IEW see :

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QUESTIONS PRESENTED

In this case, Petitioner argued that an award of the

National Railroad Adjustment Board (“NRAB”) was not

rendered promptly, to Petitioner’s prejudice. Petitioner

also claimed the NRAB award did not confirm that the

Board’s members were competent because the award was

neither signed by the Board nor attested by its secretary.

The questions presented are:

1. Whether the 1978 Supreme Court decision in

Union Pacific R.R. Co. v. Sheehan precludes

judicial review of a complaint that the

NRAB did not issue a “prompt and orderly

settlement” of a railroad labor dispute, or a

competent award.

N

Whether a failure to render a prompt, timely

award is a failure of the NRAB to comply

with the requisites of the Railway Labor Act,

and to conform itself to the matters within

the scope of its jurisdiction.

3. Whether an award, which does not reflect

that competent Board panel members actu-

ally participated in its rendition, evidences a

failure to comply with the requisites of the

Railway Labor Act, section 153(n).

ii

PARTIES TO THE PROCEEDING

All parties are as listed in the caption. Respondent

Burlington Northern and Santa Fe Railway Company was

formerly known as Atchison, Topeka, and Santa Fe Rail-

way Company, and was so named in the complaint.

RULE 29.6 STATEMENT

Respondent Burlington Northern and Santa Fe Rail-

way Company is a subsidiary of Burlington Northern and

Santa Fe Corporation, which has issued shares and debt

securities to the public.

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ill

TABLE OF CONTENTS

Page

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JURISDICTION ................ acre neeesebeaaue ey l

SEATUTES INVOLVED ..............ccccccccccccce l

NE 5605500 8g 0 densa 444nnddoduesedecceceaar 2

A. Statutory Background ....................... 3

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C. Proceedings Below ...............cccccccccas. 6

REASONS FOR GRANTING THE PETITION....... 7

A. The Court should clarify the scope of judicial

review that exists even in the limited Sheehan

SII occu cuwscccuevecxcoeneccccneen. 8

B. The requirement for prompt settlements is sub-

a pe SUES SETAE A= pais PS 6 Ee agg ae 8

C. An NRAB award must reflect it was compe-

tently made if stable labor relations are to be

ee oe eee ea at oa ene 11

ecu. PAS LAS Wh Ms

iv

TABLE OF AUTHORITIES

CASEs:

Brotherhood of Railway and Steamship Clerks v. Nor-

folk So. Ry. Co., 143 F.2d 1015 (4th Cir. 1944)...... 10

Del Casal v. Eastern Airlines, Inc., 634 F.2d 295 (5th

Cir.), cert. denied sub nom, Air Line Pilots Assoc.

International v. Pelaez Del Casal, 454 U.S. 892

GREE Ss cv aceecuneeniceveanaeaaanntesibueaeedese ts 3

Elgin, J. and E. Ry. Co. v. Burley, 325 U.S. 711 (1945) ..... 3

International Ass'n of Machinists v. Frontier Airlines,

GOS Hits Dee Come Ge TOs knw kc cckceccanicues: 3

Jones v. St. Louts-San Francisco Ry., 728 F.2d 257

Sees Gldnt REED + Suk bores lsascusateasunesne. 9, ti,

Lodge No. 725, International Association of Machi-

nists v. Mooney Aircraft, Inc., 410 F.2d 681 (5th

ee ee Ac Gaane anon eekwi eda dea nteieie can saeene ees 9

Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S.

Der er ro rr err rrr ee anos 8

Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89

GG cone au vieec chun dey lhbs ces eee eka 4,7, 8

STATUTES:

ee as a ee bene ek beets edeeaeas cae ceanereeees 9

ee ee ee ONONOE ca ccedcssccsduacssauceaaduee 1, 10, 11

ee rs ce ees eececesucusasacdeavennoeaaes 1

MD TIA & USS Firat CG) woo once ce ccccuassss 26,3

Oe Sr © SN ns cheese ecuenesveeees ee ee

a Sea Se a SI so cia ea ae es eke eciae ee eee 10

DAE RN aR

PETITION FOR A WRIT OF CERTIORARI

Gregory A. Willis respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Fifth Circuit in this case.

¢

OPINIONS BELOW

The opinions of the court of appeals panel (App.,

infra, 1a-2a) and of the district court (App., infra, 3a-27a)

are unpublished.

JURISDICTION

The judgment of the court of appeals was entered on

December 15, 2000. App., infra, 1a. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

¢

STATUTES INVOLVED

The statutes involved are 45 U.S.C. §§ 151a(4) and (5),

153 First (q), and 153(n) of the Railway Labor Act. Section

151a of the Railway Labor Act provides that the intention

and purpose of the Act is:

(4) to provide for the prompt and orderly set-

tlement of all disputes concerning rates of pay,

rules, or working conditions;

(5) to provide for the prompt and orderly set-

tlement of all disputes growing out of griev-

ances or out of the interpretation or application

of agreements covering rates of pay, rules, or

working conditions.

Section 153(q) provides:

The court shall have jurisdiction to affirm the

order of the division or to set it aside, in whole

or in part, or it may remand the proceeding to

the division for such further action as it may

direct. On such review, the findings and order of

the division shall be conclusive on the parties,

except that the order of the division may be set

aside, in whole or in part, or remanded to the

division, for failure of the division to comply

with the requirements of this chapter, for failure

of the order to conform, or confine itself, to

matters within the scope of the divisions’ juris-

diction, or for fraud or corruption by a member

of the division making the order.

Section 153(n) provides:

A majority vote of all members of the division of

the Adjustment Board eligible to vote shall be

competent to make an award with respect to any

dispute submitted to it.

¢

STATEMENT

This case asks whether the requirement for prompt

settlement of Railway Labor Act claims, by issuance of

competent awards, is subject to judicial review. Petitioner

Willis asserted that the failure of the NRAB to issue a

prompt, timely award was a failure of the Board to com-

ply with the requirements of the Act. Additionally, Willis

asserted that because the NRAB’s secretary did not attest

the award, it did not reflect that the panel members

competent to make the award actually participated in its

rendition. Accordingly, the Board did not comply with its

rules and therefore did not confine itself to its jurisdic-

tion. Both the district court and court of appeals held that

Willis’s claims did not present valid grounds for judicial

review.

A. Statutory Background

In 1934, Congress created the National Railroad

Adjustment Board. The NRAB is composed of an equal

number of appointed union and employer representatives

to sit at one of the Board’s four divisions. The Railway

Labor Act also authorized the appointment of a neutral

referee with authority to decide any controversy pre-

sented and to issue an award final and binding upon both

parties to the dispute.

The Act defines “major disputes” as those that relate

to “the formation of collective agreements or efforts to

secure them” and concern “the acquisition of rights for

the future, not [the] assertion of rights claimed to have

vested in the past.” Elgin, J. and E. Ry. Co. v. Burley, 325

U.S. 711, 723 (1945). The Act defines “minor disputes” as

those that “concern issues as to whether an existing

agreement controls the controversy, i.e., the interpretation

or application of a particular provision to a particular

situation.” International Ass'n of Machinists v. Frontier Air-

lines, 664 F.2d 538, 540 (5th Cir. 1981). Congressional

intent was to keep most minor disputes out of federal

court; indeed, this Court and others have described the

range of judicial review of NRAB decisions as “among

the narrowest known to the law.” E.g., Del Casal v. Eastern

Airlines, Inc., 634 F.2d 295, 298 (5th Cir.), cert. denied sub

nom, Air Line Pilots Assoc. International v. Pelaez Del Casal,

454 U.S. 892 (1981). :

However, in Union Pacific Railroad Co. v. Sheehan, 439

U.S. 89 (1978), this Court held that judicial review of

NRAB orders is available on three specific grounds: (1)

failure of the Board to comply with the requirements of

the Railway Labor Act; (2) failure of the Board to con-

form, or confine, itself to matters within the scope of its

jurisdiction; and (3) fraud or corruption.

B. Factual Background

Willis was employed by The Atchison, Topeka, and

Santa Fe Railway Company (“the railroad”) as a locomo-

tive engineer, beginning in 1977. R 564.1 Respondent Bur-

lington Northern and Santa Fe Railway Company

(“BNSF”) is the successor in interest to The Atchison,

Topeka, and Santa Fe Railway Company. Id. The railroad

and BNSF are interstate carriers subject to the Railway

Labor Act. Willis’s employment with BNSF was governed

by a collective bargaining agreement between BNSF and

the Brotherhood of Locomotive Engineers (“the union”).

Id.

Willis asserted that during his employment, the rail-

road and the union agreed to seek the termination, on

pretext, of employees with collective bargaining agree-

ments, so as to hire new employees who would be given

less desirable contracts. R 5. Willis alleged that on two

occasions he was one of the employees targeted in this

! Record citations follow the abbreviations used in the

court of appeals for the Clerk’s Record (R).

employment “policy.” In the second incident, which

eventually led to this suit, Willis was hospitalized for

seven weeks. R 160. After his release, Willis presented a

physician’s release to the railroad and attempted to

return to his job. R 147. Willis was instead placed on

medical leave of absence, without pay, for over three

years. R 160, 334.

The union requested that the railroad investigate

why Willis had been unable to return to work for three

years and what was necessary for him to do so. R 304-05.

When the railroad responded, it indicated that Willis

needed to complete two medical forms and his failure to

do so would result in “possible disciplinary action for

noncompliance with Carrier rules.” R 307. Willis com-

pleted the forms. R 308. Two months later, the railroad

requested Willis complete the forms again. From the

record, it does not appear the forms were completed a

second time before the railroad notified Willis to appear

for investigation of violations of work rules related to the

failure to provide the medical forms.

Under the provisions of the collective bargaining

agreement, investigations were required to commence

within 30 days “from the date of occurrence of the inci-

dent to be investigated.” R 159. Willis claimed the “inci-

dent” began when the railroad placed him on medical

leave with his consent in 1991. The railroad claimed that

it was charging Willis with violations as of May 1994, and

would hold its formal investigation in June 1994, thus

meeting the 30-day rule. R 124.

After the railroad’s investigation was completed, the

company superintendent dismissed Willis. R 232. Willis,

individually or through the participation of the union,

appealed the decision of the railroad superintendent

through various levels. R 217, 348, 356-57, 370, 371, 433.

Willis eventually reached arbitration to the National Rail-

road Adjustment Board, First Division. R 411. The arbitra-

tion hearing took place in September 1996. Two

representatives of the First Division informed Willis that

a ruling and award should be expected in two to six

months. R. 427. Willis objected in June 1997 when no

award had been rendered. In July 1997, Willis again

objected to the Board’s refusal to render the award. R.

426. Willis stated that he was suffering financial harm

from the delay. In September 1997, Willis objected to the

Arbitrator, stating in detail the hardship he suffered from

the NRAB’s delay. R 424-45. In October 1997, Willis objec-

ted for a fourth and fifth time to the Board’s failure to

promptly render an award, observing that the authority

of the Arbitrator should expire after a reasonable time. R

419-21. The Board finally issued its award fourteen

months after the arbitration hearing, denying Willis’s

claim in November 1997. R 346-50. The award was not

attested by the Board’s secretary, and was not signed by

any Board member present at the arbitration hearing and

thus competent to make the award. R 346.

C. Proceedings Below

1. Willis filed suit in the district court, alleging the

NRAB had properly accepted Willis’s grievance, but had

rendered an untimely and unsigned award. R 42. Willis

further alleged the NRAB had exceeded its authority in

rendering the award. BNSF moved for summary judg-

ment, asserting Willis had failed to meet any of the excep-

tions to finality of NRAB awards. R 183, 185. The district

court thereafter granted BNSF’s summary judgment

motion. App., infra, 3a-27a.

2. A panel of the Fifth Circuit affirmed the sum-

mary judgment. App., infra, 1a-2a. In four sentences, the

panel heid that the NRAB had complied with the require-

ments of the Railway Labor Act; had acted within its

jurisdiction; and that there was no evidence of fraud or

corruption. The court did not apply any analysis of the

law to the facts, and therefore it is unclear whether the

court considered Willis’s arguments as within the scope

of judicial review, but without merit, or simply not sub-

ject to review.

REASONS FOR GRANTING THE PETITION

This Court’s review is warranted to insure that the

Railway Labor Act achieves its intended purpose. The

Court has observed that by enacting this legislation,

“Congress endeavored to promote stability in labor-man-

agement relations in this important national industry by

providing effective and efficient remedies for the resolu-

tion of railroad-employee disputes arising out of the

interpretation of collective-bargaining agreements.”

Sheehan, 439 U.S. at 94. Willis submits that promptness of

resolution is a matter at the heart of the institutional

competence of the National Railway Adjustment Board,

and promptness of settlement is consistent with the Rail-

way Labor Act’s intent to promote stability in labor rela-

tions.

A. The Court should clarify the scope of judicial

review that exists even in the limited Sheehan

circumstances

The scope of judicial review of the Act is an impor-

tant question of federal law. This Court should hold that

the provision in the Railway Labor Act for “prompt and

orderly settlement” of railroad labor disputes has sub-

stantive and enforceable meaning, and that the Railway

Labor Act’s requirements for a competent award should

be confirmed and enforced. Review is also necessary to

establish a “reasonable time” rule for arbitration awards.

B. The requirement for prompt settlements is sub-

stantive

“Statutory construction must begin with the lan-

guage employed by Congress and the assumption that

the ordinary meaning of that language accurately

expresses the legislative purpose.” Park ‘N Fly, Inc. v.

Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985). Applying

such rules of construction, settlements of railway labor

disputes must be “prompt,” since this word is unam-

biguous and must be assumed to accurately state a Con-

gressional purpose. Thus, the failure of the NRAB to

issue a prompt, timely award is also a failure of the Board

to comply with the requirements of the Act. Such a claim

should be actionable in district court pursuant to 45

U.S.C. § 153(q).

=

There is doctrinal support for Willis’s position. In

Jones v. St. Louis-San Francisco Ry., 728 F.2d 257, 261-63

(6th Cir. 1984), the court reviewed the failure of the Board

to comply with the requirements that its decision be

rendered by a three-member board, and to render its

award timely. The Sixth Circuit held that a decision of a

Public Law Board that was rendered fourteen months

after a hearing was untimely, and as a result, the Board

had lost jurisdiction. The Public Law Board differed from

the Board here as it was established by a private agree-

ment between the railroad and the union; its function,

however, was the same as the NRAB. Id. The private

agreement between the railroad and union required the

board to render its award within fifteen days of the

hearing. Jones argued that after the fifteen days had

expired, the Board lost jurisdiction. The court of appeals

disagreed, however, because the private agreement did

not unequivocally state that jurisdiction terminated on

the sixteenth day. The court held the better rule was that

the arbitrator’s authority expired after a “reasonable

time” beyond the period originally fixed. Id.

And in Lodge No. 725, International Association of

Machinists v. Mooney Aircraft, Inc., 410 F.2d 681 (5th Cir.

1969), a collective bargaining agreement provided that a

decision had to be rendered within three days of hearing.

An award under the Labor Management Relations Act, 29

U.S.C. § 185, was made in 44 days, and the company

claimed it was therefore invalid. The union contended the

company had not objected to the failure to comply with

the time limits until after the award issued. The court of

appeals held that an arbitrator’s failure to render an

award on a timely basis did not invalidate an award

ae i

10

absent either an objection by or prejudice to the losing

party, unless the agreement to arbitrate provided that the

timeliness of the decision was jurisdictional.

Willis disagrees with the lower courts’ conclusion

that 45 U.S.C. § 151a(4) is an articulation of purpose only

and unworthy of consideration as a requirement of the

Act imposed on the NRAB. Brotherhood of Railway and

Steamship Clerks v. Norfolk So. Ry. Co., 143 F.2d 1015 (4th

Cir. 1944), is instructive. In Norfolk, the railroad and

union disagreed over a possible modification of the exis-

ting employment agreement. Unable to resolve the issue

through mediation, the parties agreed to arbitration. The

Railway Labor Act requires such an agreement provide

the period for the board to make its award. The parties

agreed the award would issue in 15 days, but the award

was not filed until 91 days after the hearing. Id. at

1016-17.

The railroad filed a petition under section 159 Third

of the Act, which stated an award could be vacated if it

did not conform to the substantive requirements of the

chapter or if the proceedings were not substantially in

conformity. The Act further provided the validity of

awards was to be favored and that awards should not be

set aside for “trivial irregularity.” A judgment vacating

the award was thereafter entered by a district court.

The court of appeals affirmed, in part based on sec-

tion 151a(4) and its requirement for “prompt” settlement

of disputes. The court correctly observed that “[h]ad the

word ‘prompt’ been intended to hold no significance, it

would have been an easy matter for Congress to have

deleted it entirely.” Norfolk, 143 F.2d at 1017. The court

|

11

further noted that time is of the essence in arbitration at

common law, and that it assumed Congress had legislated

in light of that law. The court also observed that an

objection to untimely filing was not trivial but very sub-

stantial, attacking the very existence and innate validity

of the award itself. While the court was primarily per-

suaded by the statutory requirement that the arbitration

agreement fix the time for filing, its observations and

concerns are applicable here too: without a limitation on

the time for an award, settlement of disputes could be

greatly delayed by mere failure on the part of arbitrators

to act.

The courts below rejected Willis’s arguments that the

failure of the Board to render its award promptly was a

failure to comply with the Railway Labor Act. Among

other reasons, the district court noted that Jones v. St.

Louis-San Francisco Ry., 728 F.2d 257 (6th Cir. 1984) articu-

lated a “reasonable time” rule for awards of arbitrators

which the Fifth Circuit had yet to even adopt. App. infra,

at 24a.

Although presented the opportunity to adopt such a

rule in this case, the court of appeals declined to give

substance to section 151a(4). Further review by this Court

is therefore necessary to provide a uniform national rule

for timeliness of awards.

C. An NRAB award must reflect it was compe-

tently made if stable labor relations are to be

promoted

Review by this Court is appropriate for the addi-

tional reason that the courts below failed to give meaning

to section 153(n) of the Act.

12

The record established that the award at issue was

not signed by any Board members, and was not attested

by the NRAB secretary. The need for signature and

attestation is made clear by reference to 45 U.S.C. § 153(n)

of the Act. That provision states that a majority vote of all

members of the division of the Adjustment Board eligible

to vote shall be “competent” to make an award with

respect to the dispute submitted to it. Unless the award is

signed and attested to, there is no certainty that the

correct members or appropriate number of members

made the award.

In Jones v. St. Louts-San Francisco Ry., 728 F.2d 257 (6th

Cir. 1984), the court of appeals construed subsection (n)

of the Act to entitle the parties who appear before the

Board the right to be heard by a three member Board, a

majority of whom must then agree in order to resolve the

dispute at hand. The court therefore held that the provi-

sions of the Act require that in order to have a valid

award, a majority of the Board must hear the parties and

participate in the decisionmaking process before render-

ing an award. Id. at 262.

In this case, there was no record that any of three

members of the NRAB participated in the issuance of the

award, since the NRAB secretary did not attest the award.

Willis’s objection in that regard was a challenge to the

validity of the award itself. Because the Board’s secretary

did not attest the award, the Boafd did not comply with

its rules and therefore did not confine itself to its jurisdic-

tion. Furthermore, the award did not reflect that the

panel members competent to make the award actually

participated in rendition of the award. This renders the

13

award invalid, and the actions of the Board not in compli-

ance with section 153(n) of the Act, which itself is review-

able under section 153(q). But the district court held that

given the limited scope of jurisdiction, a lack of signa-

tures or attestation should not be fatal. In so holding, the

construction of the Railway Labor Act by the courts

below overly embraced this Court’s Sheehan decision so

as to preclude even appropriate judicial review.

A proper interpretation of the Act would allow judi-

cial review of the circumstance presented here, thereby

promoting timely and competent awards. This Court’s

review is necessary to obtain that proper and instructive

interpretation.

CONCLUSION

[he petition for a writ of certiorari should be

granted

Respectfully submitted,

Georce W. Vie Il

Mitts, SHirtey, Eckert &

Bassett, L.L.P.

400 Washington Building

2228 Mechanic Street

Galveston, Texas 77550

(409) 763-2341

Counsel for the Petitioner

March 2001

App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-20404

Summary Calendar

G.A. WILLIS,

Plaintiff-Appellant,

versus

THE ATCHISON, TOPEKA AND

SANTA FE RAILWAY COMPANY,

also known as Burlington

Northern Santa Fe,

Defendant-Appellee.

Appeal from the United States District Court for

the Southern District of Texas, Houston

(USDC No. H-97-CV-3946)

FILED DEC 15 2000

Before REAVLEY, DeMOSS and BENAVIDES, Circuit

Judges.

PER CURIAM:*

Gregory A. Willis appeals from summary judgment

upholding a National Railway Adjustment Board arbitral

award. We affirm the judgment of the district court for

the following reasons: (1) the board complied with all

requirements of the Railway Labor Act; (2) it acted within

*Pursuant to 5th Cir. R. 47.5, the Court has determined that this

opinion should not be published and is not precedent except

under the limited circumstances set forth in 5th Cir. R. 47.5.4.

App. 2

the scope of its jurisdiction; and (3) there is no evidence

of fraud or corruption. Our review is limited to these

grounds. See 45 U.S.C. § 153 First (q); Union Pacific R.R

Co. v. Sheehan, 439 U.S. 89, 93 (1978).

AFFIRMED

App. 3

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

(SREGORY A. WILLIS,

Plaintiff,

Vs.

BURLINGTON NORTHERN

AND SANTA FE RAILWAY

COMPANY,

Defendant.

Civil Action No.

H-97-3946

MMMM MMMM ww

MEMORANDUM OPINION AND ORDER

(Filed Mar. 31, 2000)

Pending before the Court in the above-referenced

action are Plaintiff Gregory A. Willis’s Motion for Sum-

mary Judgment (Instrument #26) and Defendant Bur-

lington Northern and Santa Fe Railway Company’s

Motion for Summary Judgment (Instrument #30). After

reviewing the record, the arguments of counsel, and. the

applicable law, the Court concludes that Plaintiff’s

motion should be DENIED, and that Defendant’s motion

should be GRANTED.

I. BACKGROUND

In this case, Plaintiff Gregory A. Willis (“Willis”)

seeks from this Court a reversal of a National Railway

Adjustment Board (“NRAB”) arbitral award. Willis now

files for summary judgment to that effect. Burlington

Northern and Santa Fe Railway Company (“BNSF”)

App. 4

responds by arguing that Willis cannot establish the nar-

row exceptions under the Railway Labor Act that would

require the reversal he seeks. As a result, BNSF has filed

for summary judgment in its own favor.

The essential facts in this case are not in dispute.

BNSF operates one of the largest rail transportation sys-

tems in the United States and is an “employer” and a

“carrier” as those terms are defined in the Railway Labor

Act, 45 U.S.C. § 153 (1986). BNSF is the successor-in-

interest to The Atchison, Topeka and Santa Fe Railway

Company.' The Brotherhood of Locomotive Engineers

(“the Brotherhood”) is an unincorporated labor organiza-

tion which represents certain BNSF employees in train

service, such as conductors and locomotive engineers.

Plaintiff Willis was hired by The Atchison, Topeka and

Santa Fe Railway Company as a locomotive engineer in

1977.

At all relevant times, Willis’s employment was gov-

erned by the terms of a collective bargaining agreement

(“the Agreement”) between BNSF and the Brotherhood.

The Agreement between BNSF and the Brotherhood,

dated October i, 1977, has been amended from time to

time but in all relevant aspects is still in effect. The

Agreement governed the terms of Willis’s employment

with BNSF.

| For the sake of simplicity, the Court will refer to BNSF and

all predecessors as “BNSF” throughout its Memorandum

Opinion and Order.

App. 5

The Agreement between BNSF and the Brotherhood

provided certain rules concerning the conduct of investi-

gations and the assessment of discipline with regard to

employees. Pursuant to the Agreement, employees may

not be dismissed from service unless they are first

afforded an investigation. They must be notified of the

investigation within thirty days from the date of the

occurrence that is to be investigated.

Willis was hospitalized on November 7, 1990 and

released on December 20, 1990. Thereafter, he attempted

to return to work on January 2, 1991, but Defendant BNSF

placed him on medical leave of absence without pay for

over three years. Willis requested a return to work and

presented to BNSF his doctors’ releases authorizing his

return to work. According to BNSF, Willis was put on

medical leave until he property submitted medical release

forms 2820 and 2805-

Three years passed without Willis submitting the

specific medical release forms, and without BNSF allow-

ing Willis to return to work.

On May 26, 1994, Willis was notified in writing of an

investigation into alleged wrongdoing on his part. The

investigation notice concerned Willis’s “alleged failure to

comply with instruction in providing medical informa-

tion to Dr. Khuri, Santa Fe Medical Director, as instructed

per letter May 5, 1994.” The notice also indicated that the

investigation concerned Willis “allegedly being absent

without leave beginning May 16, 1994.”

On May 29, 1994, Willis responded in writing that he

would attend the investigation hearing. That hearing was

held on June 13, 1994, which was within thirty days of the

App. 6

May 26, 1994 notice of investigation. Following the inves-

tigation hearing, BNSF terminated Willis’s employment

on June 27, 1994.

On August 2, 1994, Willis appealed his employment

termination, but the appeal was declined by BNSF. On

September 12, 1994, he appealed the decision to John

Fleps, Vice President Labor Relations; Fleps denied the

appeal in a lengthy letter dated October 27, 1994.

Willis then filed a lawsuit in the Southern District of

Texas, case number 94-4166, asking this Court to bypass

the mandatory bargaining procedures outlined in the

Railway Labor Act. Judge Kenneth Hoyt dismissed the

suite on March 15, 1995 for Willis’s “failure to exhaust

grievance and arbitration remedies as required by the

Railway Labor Act.” Following this dismissal, Willies

[sic] then agreed to conference his case with Milton

Siegele, BNSF’s designated representative. The confer-

ence of the case did not bring about a resolution, so Willis

then filed a submission with the National Railroad

Adjustment Board requesting review of the case. }

The NRAB heard Willis’s case, with a neutral arbitra-

tor presiding, and on November 5, 1997, issued Award

No. 24860 declining Willis’s claim. Specifically, the NRAB

found that Willis was properly terminated:

Upon full consideration of the entire record and

the arguments raised by the parties, the Board

finds that there is substantial evidence to sup-

port the Carrier’s decision to discharge Claim-

ant.

. . We further find that the discipline

assessed Claimant was not arbitrary, capricious

App. 7

or excessive in light of his disciplinary history

and his persistent refusal to provide the medical

information requested by the Carrier.

On December 4, 1997, Willis filed the instant action in this

Court, asking for a review of the arbitral award and

asking this Court to determine if the Railway Labor Act

and the Agreement were followed.

II. STANDARD OF REVIEW

Under Rule 56(c) of the Federal Rules of Civil Pro-

cedure, summary judgment is appropriate when the

pleadings and record evidence show that no genuine

issue of material facts exists and that, as a matter of law,

the movant is entitled to judgment. Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir.1994). “[T]he substantive

law will identify which facts are material.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only disputes

about material facts will preclude the granting of sum-

mary judgment. Id. In a motion for summary judgment,

the burden is on the movant. Latimer v. Smithkline &

French Lab., 919 F.2d 301, 303 (5th Cir. 1990). If the non-

movant bears the burden of proof at trial, however, the

movant for summary judgment need not support the

motion with evidence negating the opponent's case.

Instead, the movant may satisfy its burden by showing

that there is an absence of evidence to support the non-

movant’s case. Id.; Little, 37 F.3d at 1075.

Once the movant makes this showing, the burden

shifts to the non-movant to show that summary judgment

is not appropriate. Little, 37 F.3d at 1075 (citing Celotex

Corp. v. Catrett, 477 U.S. 317, 315 (1986)). “This burden is

App. 8

not satisfied with ‘some metaphysical doubt as to the

material facts,’ . . . by ‘conclusory allegations,’ . . . by

‘unsubstantiated assertions,’ or by only a ‘scintilla’ of

evidence.” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586, (1986); Lujan v. National

Wildlife Fed’n, 497 U.S. 871, 871-73 (1990); Hopper v. Frank,

16 F.3d 92, 97 (5th Cir. 1994); Davis v. Chevron U.S.A., Inc.,

14 F.3d 1082, 1086 (5th Cir. 1994)). Rather, the non-moving

party must “come forward with ‘specific facts showing

that there is a genuine issue for trial.’ ” Matsushita, 475

U.S. at 587 (quoting Feb. R. Civ. P. 56(e)). In determining

whether a genuine issue for trial exists, the court must

view all of the evidence in the light most favorable to the

non-movant. Richter v. Merchants Fast Motor Lines, Inc., 83

F.3d 96, 98 (5th Cir. 1996) (per curiam); Gremillion v. Gulf

Coast Catering Co., 904 F.2d 290, 292 (5th Cir. 1990).

Ill. DISCUSSION

A. The parties’ arguments.

In this case, the parties have filed cross-motions for

summary judgment. Plaintiff Willis’s motion for sum-

mary judgment argues that Willis is entitled to reversal of

the NRAB’s decision because Defendant BNSF failed to

comply with the mandatory grievance procedures as

required by the Collective Bargaining Agreement and the

Railway Labor Act. Specifically, Willis claims that the

NRAB did not correctly follow the Agreement nor the

Railway Labor Act because (1) BNSF should have begun

its investigation in 1991 instead of 1994, as well as confer-

ence Willis’s grievance with the proper designated repre-

sentative; (2) the NRAB effectively committed fraud by

App. 9

disregarding Willis’s arguments and evidence; (3) the

NRAB lost jurisdiction because its award was not ren-

dered within a reasonable time; and (4) the award was

not signed by panel members and attested to by the

Secretary of the NRAB.

In response, Defendant BNSF files its own motion for

summary judgment, in which it disputes each of Willis’s

four arguments. Moreover, BNSF frames the issues of this

case as being twofold: (1) whether Willis has established

that whether Willis has established that judicial review of

an NRAB decision is appropriate under any of the limited

exceptions permitting review, and (2) whether this Court

lacks jurisdiction over wrongful discharge claims that

arise out of the Railway Labor Act and the collective

bargaining agreement. Defendant’s two issues, however,

essentially distill into one singular argument: that Willis

hasn’t shown that the NRAB decision should be properly

overturned under the applicable statutory limitations.

B. The Railway Labor Act.

The parties agree that both the Railway Labor Act

(“RLA”) and the collective bargaining agreement control

the issues in this case. Generally, all disputes growing out

of grievances or out of the interpretation or application of

a collective bargaining agreement are preempted by the

RLA’s mandatory arbitration provisions. Hirras v.

National R.R. Passenger Corp., 44 F.3d 278, 280 (5th Cir.

1995) (citing 45 U.S.C. § 151a). One of the goals of the

RLA is to “provide for the prompt and orderly settlement

of all disputes growing out of grievances or out of the

interpretation or application of agreements covering rates

|

App. 10

of pay, rules, or working conditions.” Id. (quoting 45

U.S.C. § 151a). Because such disputes concern an existing

collective bargaining agreement, they “seldom produce

strikes” and are known as the “minor disputes of the

railway labor world.” Elgin, J]. & E. Ry. Co. v. Burley, 325

U.S. 711, 723-24 (1946). Minor disputes are to be con-

trasted with “major disputes,” which “present the larger

issues about which strikes ordinary arise” because they

“seek to create rather than to enforce contractual rights,”

see id., and with those disputes that seek neither to create

nor enforce the contractual rights created by a collective

bargaining agreement. Under the RLA, only minor dis-

putes “may be referred by petition of the parties or by

either party to the appropriate division of the [National

Railroad] Adjustment Board” (“NRAB”) for arbitration.”

Id. (quoting 45 U.S.C. § 151la). Moreover, the arbitration

procedures provided by the RLA for minor disputes are

mandatory in nature. See Andrews v. Louisville & Nashville

R.R., 406 U.S. 320, 322 (1972) (“Any notion that the arbi-

tration procedures provided by the RLA for minor dis-

putes is optional is not longer good law.”).

Thus, because the instant case involved a “minor

dispute” as such is defined in the case law, Willis’s griev-

ance had to be resolved by mandatory, binding arbitra-

tion before an RLA adjustment board, with only limited

review under § 153 First (q) of the RLA. In this context,

courts have limited jurisdiction to review any NRAB

decisions because “Congress specifically intended in the

RLA to keep railroad labor disputes out of the courts and

instead requires the use of grievance procedures and

arbitration.” Lewy v. Southern Pac. Transp. Co., 799 F.2d

1281, 1289 (9th Cir. 1986). Stated another way, courts lack

App. 11

subject matter jurisdiction over controversies which are

subject to the mandatory and exclusive arbitration provi-

sions of the RLA. International Ass'n of Machinists, 850

F.2d 368, 376-77 (8th Cir. 1988). Inherent in this principle

is courts’ trust in the institutional competence of the

NRAB with regard to railroad labor relations. See, e.g.,

Gunther v. San Diego & Arizona E. Ry., 382 U.S. 257, 261

(1965) (stating that Congress provided for mandatory

arbitration of workplace grievances by “representatives

of management and labor peculiarly familiar with the

thorny problems and the whole range of grievances that

constantly exist in the railroad world”); Whitehouse v.

Illinois Cent. R.R., 349 U.S. 366, 371 (1955) (“[T]he railroad

world is like a state within a state. Its population . . . has

its own customs and its own vocabulary, and lives

according to rules of its own making.”); Slocum v. Dela-

ware, L. & W. R.R., 399 U.S. 239, 243 (1950) (observing that

RLA arbitrators “understand railroad problems and

speak the railroad jargon”).

Such deference demonstrated by the courts has, as a

result, translated into courts having virtually “no author-

ity to rehear matters finally decided by [RLA arbitral

board] awards.” Rosen v. Eastern Air Lines, 400 F.2d 462,

463-63 (5th Cir. 1968). This rule has been consistently

followed by the Fifth Circuit. See, e.g., id.; Southern Pac.

Co. v. Wilson, 378 F.2d 533 (5th Cir. 1967); Hodges v.

Atlantic C.L.R. Co., 363 F.2d 534 (Sth Cir. 1966).

Thus, when a plaintiff seeks to challenge an award

issued by the NRAB, he is limited to the remedies set

forth in the review provisions of the RLA, 45 U.S.C. § 153

First (q). That provision states in part:

2 eee Ee

App. 12

If any employee . . . is aggrieved by any of the

terms of an award [made by the Adjustment

Board] or by the failure of the division to

include certain terms in such award, then such

employee . . . may file in the United States

district court. . . . The court shall have jurisdic-

tion to affirm the order of the division or to set

it aside, in whole or in part, or it may remand

the proceeding to the division for such further

action as it may direct. On such review, the

findings and order of the division shall be con-

clusive on the parties, except that the order of

the division may be set aside, in whole or in

part, or remanded to the division, for failure if

the division to comply or confine itself, to mat-

ters within the scope of the division’s jurisdic-

tion, or for fraud or corruption by a member of

the division making the order.

45 U.S.C. § 153(q) (1986). The Supreme Court has clarified

§ 153 First (q) to mean that judicial review of NRAB

awards are confined to three specific instances: (1) failure

of the Adjustment Board to comply with the requirements

of the Railway Labor Act; (2) failure of the Adjustment

Board to conform or confine itself to matters within the

scope of the its [sic] jurisdiction; and (3) fraud or corrup-

tion by a member of the Board. Union Pacific R.R. Co. v.

Sheehan, 439 U.S. 89, 93 (1978) (per curiam).?

2 The Fifth Circuit also recognizes that a Plaintiff may

challenge NRAB actions which violate constitutional due

process. See Southern Pac. Co. v. Wilson, 378 F.2d 533, 536-37 (5th

Cir. 1967) Plaintiff has not made any such argument in the

instant case.

ee

App. 13

In sum, the remedies outlined in this provision of the

RLA allows for a “range of judicial review in [that is]

among the narrowest known to the law.” Diamond v.

Terminal Ry. Ala. State Docks, 421 F.2d 228, 233 (5th Cir.

1970).

C. Plaintiff's first claim: BNSF failed to comply

with the RLA § 152 Seventh.

Plaintiff first argues that the NRAB’s award violated

45 U.S.C. § 153(q) because the NRAB failed to comply

with the requirements of § 152 Seventh, which provides

that “[nJo carrier, its officers, or agents shall change the

rates of pay, rules, or working conditions of its

employees, as a class, as embodied in agreements except

in the manner prescribed in such agreements or in section

156 of this title.” 45 U.S.C. §152 Seventh (1986). Plaintiff's

argument here is that the NRAB essentially allowed BNSF

unilaterally to modify the terms of the Collective Bargain-

ing Agreement because the NRAB condoned (1) BNSF’s

untimely investigation of Plaintiff's case, and (2) BNSF’s

failure to conference Plaintiff’s dispute with appropriate

representative.

At the outset, the Court notes that, because the

instant case involves a “minor” dispute, Plaintiff’s

reliance on § 152 Seventh is misplaced. Section 152 Sev-

enth does not apply to minor disputes; rather, it applies

only to major disputes. See Conrail v. Railway Labor Execu-

tives’ Ass'n, 491 U.S. 299, 302 (1989) (observing that § 152

Seventh is one of the two “statutory bases for the major

dispute category”); International Bhd. of Teamsters, Chauf-

feurs, Warehousemen & Helpers of America, Airline Div. v.

App. 14

Braniff Int'l Airways, Inc., 437 F.2d 1272, 1274 (5th Cir.

1971) (citing § 152 Seventh and 156 as statutes that

“bring[] into play the major dispute provisions of the

[RLA]”). Essentially, Plaintiff takes the mistaken argu-

ment that the NRAB, in deciding Plaintiff’s minor dis-

pute, failed to comply with a statute that expressly deals

only with major disputes. The Court thus holds that

Plaintiff’s first claim, in which he invokes § 152 Seventh,

is without merit as a matter of law.

Nevertheless, assuming arguendo that Plaintiff had a

legitimate basis in the RLA for his procedural claims, the

Court finds that the NRAB decision regarding those

claims should not be disturbed. Before this Court can

decline to enforce an NRAB arbitration award, the award

must be “without foundation in reason or fact.” Brother-

hood of R.R. Trainmen v. Central of Georgia Ry. Co., 415 F.2d

403, 412 (5th Cir. 1969). As the Fifth Circuit has stated,

To merit judicial enforcement, an award must

have a basis that is at least rationally inferable,

if not obvious drawn, from the letter or purpose

of the collective bargaining agreement. If there

is no rational way to explain the remedy handed

down by the arbitrator as a logical means of

furthering the aims of the contract, that is, if an

award is “without foundation in reason or fact,”

the award lies beyond the arbitrator’s jurisdic-

tion.

Id. at 411-12. Using this standard of review, the Court

finds that the NRAB’s award to be rationally inferable

from the Collective Bargaining Agreement and founded

in reason and fact.

App. 15

Plaintiff first specifically contends that BNSF violated

its own Collective Bargaining Agreement when it failed

to investigate Willis’s suspension within the thirty days

mandated by the Agreement. The Agreement specifically

states that “Investigations will be held promptly, but in

any event not later than thirty (30) days from the date of

occurrence of the incident to be investigated... . ” It is

undisputed between the parties that Defendant BNSF

notified Willis of its investigation on May 26, 1994 and

actually conducted its investigation hearing on June 13,

1994. Willis, however, contends that BNSF’s investigation

should in fact have begin around January 1991 because it

was in January 1991 that Willis unsuccessfully attempted

to return to work by presenting BNSF with his doctor’s

release authorizing his full return to work.

However, the NRAB award evinces that the NRAB

did consider Plaintiff’s arguments, as well as the record,

with regard to the appropriate time line to follow in

coming to its decision. As the Board stated, “Claimant

has raised numerous jurisdictional and procedural argu-

ments, including timeliness of the investigation and post-

dismissal conference. . . . The Board has carefully consid-

ered each of Claimants jurisdictional and procedural con-

tentions, and finds them to be without merit.” This

explanation demonstrates that the NRAB award consid-

ered Plaintiff's various arguments regarding the thirty-

day time frame.

Moreover, the summary judgment evidence validates

the NRAB’s holding. BNSF accused Plaintiff of various

wrongdoings on May 15, 1994; the investigative hearing

with regard to those allegations occurred on June 13,

1994. That the NRAB found May 15, 1994 to be the

App. 16

appropriate trigger to the thirty-day period is reasonably

borne out in the record: “Carrier wrote Claimant advising

him that he was being given a final notice to submit the

properly executed forms no later than May 15, 1994,” and

“after Claimant failed to submit the completed medical

release forms, he was served with a Notice of Investiga-

tion [which] was held on June 13, 1994.” As such, the

Court finds that, as a matter of law, the NRAB award

regarding the appropriate time line was “rationally infer-

able . . . from the letter or purpose of the collective

bargaining agreement,” and that the award had “founda-

tion in reason or fact.” Id.

Plaintiff’s second argument under § 152 Seventh,

statutory deficiencies notwithstanding, is that BNSF vio-

lated the collective bargaining agreement because it failed

to conference Plaintiff's dispute with the “designated

representative” of the carrier.* According to the collective

bargaining agreement, BNSF’s “designated representa-

tive” is the “general manager who is the carrier’s highest

* The Court notes that Plaintiff's argument here is

ostensibly premised on RLA § 152 Sixth, but is fundamentally

premised on RLA § 153 Seventh. Section 152 Sixth merely states

that a carrier is to conference a dispute with its “designated

representative.” 45 U.S.C. § 152 Sixth (1986). According to the

collective bargaining agreement, BNSF’s “designated

representative” is the “General Manager who is the carrier’s

highest officer of appeal for cases involving discipline.”

Plaintiff's argument here is that BNSF failed to conference his

dispute with the proper designated representative, which

constituted a breach of the collective bargaining agreement.

Such an argument essentially folds into Plaintiff's § 153 Seventh

claim that BNSF failed to comply with its own collective

bargaining agreement.

App. 17

officer of appeal for cases involving discipline.” Plaintiff

here complains of the fact that BNSF conferenced his

dispute with Milton Siegele, its Director of Labor Rela-

tions, rather than its General Manager. Moreover, Plaintiff

notes that the Director of Labor Relations is not even the

highest officer of appeal. As a result, Plaintiff’s basic

position is that the NRAB decision was wrong because it

essentially ratified BNSF’s noncompliance with its own

collective bargaining agreement.

Again, assuming arguendo that § 152 Seventh is a

proper RLA basis for Plaintiff's claim, the Court nev-

ertheless finds that Defendant BNSF is entitled to sum-

mary judgment because Plaintiff has failed to show how

the NRAB’s decision on this matter was irrational or

without reasonable foundation in the record. As noted

above, the NRAB itself stated that it “carefully considered

each of [Plaintiff's] . . . procedural contentions, and

[found] them to be without merit.” Indeed, § 152 Sixth

requires only that the carrier send a “designated repre-

sentative” to the conference. 45 U.S.C. § 152 Sixth (1986).

The summary judgment record shows that John Fleps was

the highest designated officer for grievances at BNSF, and

that Plaintiff initiated a conference with him. Plaintiff's

actual dispute, however, was conferenced by Milton

Siegele, who was the representative designated by Fleps.

The NRAB panel considered these facts and concluded in

favor of BNSF. The Court finds that such a conclusion is

rationally inferable, and, as a result, is valid as a matter

of law.

App. 18

D. Plaintiff's second claim: the NRAB committed

fraud. -

Based on the same arguments above, Plaintiff next

claims that the NRAB committed fraud because it “totally

disregard[ed] Plaintiff's arguments and evidence in arriv-

ing at its decision in favor of Defendant.” Citing Pacific

and Arctic Ry. And Navigation Co. v. United Trans. Union,

952 F.2d 144 (9th Cir. 1991), Plaintiff bases his fraud claim

on the notion that “fraud properly embraces a situation in

which the supposedly neutral arbitrator exhibits a com-

plete unwillingness to respond, and indifference, to any

evidence or argument in support of one party’s position.”

(Pl’s. Supp. Mot. for Summ. J. at 14.) Based on the Court’s

discussion above, however, the Court holds that the

NRAB’s decision was not without basis in reason or fact

with regard to Plaintiff's two procedural challenges. As a

result, the Court finds that Plaintiff’s fraud claim, sprung

from the notion that the NRAB award lacked all reason

and fact, is without merit as a matter of law.

Moreover, the Court notes that the statutory basis for

Plaintiff’s fraud claim is 45 U.S.C. § 153(q), which states

that a court can review an NRAB award if a plaintiff can

establish “fraud or corruption by a member of the board

making the award.” 45 U.S.C. § 153(q) (1986). None of

Plaintiffs summary judgment evidence establishes that

the neutral, Katherine Gerstenberger, or the other NRAB

panel members on Plaintiff’s dispute, Mr. Raddick and

Mr. Fingerhut, acted fraudulently. The Court finds that no

facts in the record suggest that these three NRAB board

members engaged in fraud or corruption. As a result,

App. 19

Plaintiff’s fraud claim fails to meet the narrow parame-

ters of § 153(q).

That Plaintiff argues that Milton Siegele committed

fraud is of no moment. The record indicates that Siegele

did not represent BNSF before the NRAB in Plaintiff's

dispute, nor was he an NRAB panel member in Plaintiff's

case. See DeClara v. Metropolitan Transp. Auth., 748 F.

Supp. 92, 95 (S.D.N.Y. 1990) (holding that a plaintiff’s

allegation of fraud on the part of defendants precluded

the court’s review of a Special Adjustment Board’s award

under § 153(q) because the plaintiff was not alleging

fraud by a member of the Board). Indeed, even if Siegele

had been a panel member on Plaintiff's case, Plaintiff has

failed to show how Siegele committed fraud.

E. Plaintiff's third claim: NRAB had exceeded its

jurisdiction.

In its third argument, Plaintiff Willis contends that

the NRAB order “failed to conform or confine itself to

matters within the scope of its jurisdiction.” (Pl’s. Supp.

Mot. for Summ. J. at 8.) Like Plaintiff’s fraud claim,

Plaintiff’s jurisdictional claim stems from the same basic

argument that Plaintiff made with regard to § 152 Sev-

enth: that the NRAB’s award was “wholly baseless” and

“without foundation in reason or fact.” Brotherhood of R.R.

Trainmen, 415 F.2d at 411-12. Plaintiff here recycles his

argument regarding the thirty-day period for investiga-

tions. Such an argument, packaged once under § 153

Seventh and then repackaged as a fraud claim, remains

without merit in its third incarnation as a jurisdictional

claim. As the Court has already noted, the NRAB’s award

App. 20

demonstrates that it “carefully considered each of Claim-

ant’s jurisdiction and procedural contentions, and

[found] them to be without merit.” Because the Court

finds that the NRAB’s award drew a rational relation to

the facts before the Board and now before the Court, it

merits judicial enforcement. See id.

Plaintiff does, however, make one additional argu-

ment under the aegis of his jurisdictional claim: he argues

that the NRAB exceeded its jurisdictional authority when

it ratified BNSF’s requirement that Plaintiff submit medi-

cal release Forms 2802 and 2820. In particular, Plaintiff

states that “there was absolutely no evidence presented

before the NRAB” that BNSF’s “custom and practice”

required Willis to submit the two medical release forms.

Additionally, Plaintiff states that BNSF could not point to

any rule or regulation that called for Plaintiff to be placed

on medical leave in 1991. Given that BNSF could not

justify its authority to take such measures against him,

the argument goes, the NRAB award was wrong in

endorsing BNSF’s actions.

The Court disagrees. Although Plaintiff’s jurisdic-

tional argument attacks the NRAB’s factual findings, the

Court cannot reverse the NRAB because the Board retains

jurisdiction so long as the award derives its essence from

the collective bargaining agreement and is not wholly

irrational. Diamond v. Terminal Ry. Ala. State Docks, 421

F.2d 228, 233 (5th Cir. 1970).

Such is the case here.. The NRAB clearly interpreted

the Agreement with regard to Plaintiff’s medical release

forms. As the NRAB decision stated,

App. 21

The evidence establishes that Carrier issued

Claimant clear instructions to execute and sub-

mit medical release forms 2802 and 2820, and

gave him extensions of time in which to comply

with these instructions. It was not unreasonable

for Carrier to require Claimant to submit the

forms in view of his lengthy absence from work

due to medical reasons. Moreover, the require-

ment that he submit the forms conformed to

Carrier’s longstanding practice. Claimant

refused to return the completed forms, however,

even after repeated requirements from the Car-

rier to do so. Claimant’s uncooperative attitude

was further demonstrated by his refusal to tes-

tify at the Investigative Hearing.

We find no basis in the record upon which

to relieve Claimant of his obligation to file the

medical release forms required by the Carrier.

We further find that the discipline assessed

Claimant was not arbitrary, capricious or exces-

sive in light of his disciplinary history and his

persistent refusal [sic] provide the medical

information requested by the Carrier.

The record thus reveals that the NRAB did consider

Plaintiff’s arguments regarding the medical release forms

and his medical leave of absence in light of the collective

bargaining agreement.

As to Plaintiff’s claim that BNSF failed to point to

specific provisions in the collective bargaining agreement

that mandates the submission of medical release forms

2802 and 2820, the Court finds the argument without

merit. The summary judgment evidence shows that Willis

disobeyed a clear order when he neglected to submit the

requested forms. Moreover, Plaintiff has not pointed to

App. 22

any evidence that BNSF’s actions, and the NRAB’s subse-

quent ruling on those actions, failed to observe a rea-

sonabl [sic] nexus with the collective bargaining

agreement.

Plaintiff’s final jurisdictional argument is that NRAB

award was not rendered within a reasonable time, and

that, as a result, the NRAB “lost jurisdiction.” (PI's. Supp.

Mot. for Summ. J. at 15.) The record indicates that the

NRAB decision came fourteen months after its hearing on

Plaintiff’s dispute. In making his argument, Plaintiff

depends largely on the Sixth Circuit’s opinion in Jones v.

St. Louts-San Francisco Ry. Co., 728 F.2d 257 (6th Cir. 1984).

that case held that a Public Law Board decision that came

fourteen months after the hearing date was untimely, and

as a result, without jurisdiction. See id. at 265.

The Jones holding [sic] inapplicable to the instant

facts, however. The Court first notes that Jones involved a

public law board, not the NRAB. While public law boards

are similar to the NRAB in that both are authorized

pursuant to 45 U.S.C. § 153, see Brotherhood v. St. Louts

Southwestern Ry., 676 F.2d 132, 135 n.2 (5th Cir. 1982),

public law boards differ from the NRAB in one salient

aspect. Importantly, public law boards’ “jurisdiction is

limited to the jurisdiction that is conferred thereupon by

the agreement between the carrier and the union.” Jones,

728 F.2d at 264 (citing Switchmen’s Un. Of N. Am. v.

linchfield R.R. Co., 310 F. Supp. 606, 610 (E.D. Tenn.

1969)). By contrast, the NRAB is a governmental entity

created by Congress through enactment of the RLA. The

NRAB’s jurisdiction is- governed by the RLA and the

regulations promulgated by the NRAB. See 45 U.S.C.

§ 1353 (1986); 28 C.F.R. § 1201 et seq.

App. 23

Indeed, it was upon the Jones parties’ agreement that

the Jones court defined the appropriate framework for

timeliness with regard to the arbitration award. the agree-

ment in that case stated that, “Unless otherwise agreed by

the partisan members, the Board shall, within 15 days

following completion of the hearing on each case, make

findings of facts and render an award on each case sub-

mitted to it... .” Jones, 728 F.2d at 264. The Jones court

observed that, while at common law an arbitration award

was automatically invalid if rendered after the time speci-

fied in the agreement, the more recent trend has seen

courts holding “that the authority of the arbitrator does

not expire until after a reasonable time beyond the origi-

nal time limitation provided in the agreement.” Id. at 265

(quoting International Bhd. to Teamsters v. Anchor Motor

Freight, Inc., 415 F.2d 220, 226 (3rd Cir. 1968).

The Jones court thus went on to articulate the rule

that unless parties “state in unequivocal language

whether they intend for the arbitrators to lose their juris-

diction if they render a late award,” id. (citation omitted),

“the authority of the arbitrator will expire after a reason-

able time beyond the period originally fixed for the award has

gone by.” Id. (emphasis added). Because the agreement in

Jones came after fourteen months despite an explicit fif-

teen-day time period, the board in that case “had long

since lost jurisdiction to resolve [the] dispute.” Id.

As noted above, the instant case involves not a public

law board award, but an NRAB award. The Court thus

looks to the RLA to define the contours of NRAB jurisdic-

tion. That the Jones court premised the public law board’s

jurisdiction on the parties’ agreement, rather than the

RLA, indicates that case’s inapplicability to the present

App. 24

fact were before the Court. Moreover, even if Jones were

substantively and procedurally controlling. Plaintiff in

the instant case nonetheless has failed to point to any

provision in the collective bargaining agreement that sets

out a time period in which an NRAB award must be

rendered.

The Court further notes that the Fifth Circuit has yet

even to adopt the “reasonable time” rule that the Jones

court articulated. Instead, the only arguable basis for

Plaintiff’s present claim can be found in § 151a(4) of the

RLA, which states, “The purpose of this Chapter

is... [to] provide for the prompt and orderly settlement

of all disputes concerning rates of pay, rules, or working

conditions.” 45 U.S.C. § 15la(4) (1986). While such lan-

guage articulates the purpose of the RLA, it does not

mandate a specific time period in which a decision must

be rendered. Indeed, Plaintiff has failed to point to any

provision in the RLA or the collective bargaining agree-

ment that was specifically violated by the timing of the

NRAB award. Plaintiff has also failed to show how a

period of fourteen months is so egregiously interminable

that the NRAB necessarily lost jurisdiction as a matter of

law. Defendant BNSF is thus entitled to summary judg-

ment on the mater.

G. Plaintiff’s fourth claim: NRAB award was not

certified, and was thus null and void.

Plaintiff’s final argumént revolves around technical

difficulties that Plaintiff perceives in the NRAB award,

difficulties that Plaintiff contends render the award null

and void. In particular, Plaintiff states that the “award

App. 25

rendered was not signed by the Panel Members nor was it

acknowledge and signed by the Secretary of the NRAB”

in violation of the NRAB’s own regulations (Pl’s. Supp.

Mot. for Summ. J. at 17.) NRAB Circular No. 1 provides

that “[a]ll awards of the Adjustment Board shall be

signed by order of the appropriate division thereof and

shall be attested by the signature of the Secretary... . ”

Without the required signatures and attestation, Plaintiff

argues, the award cannot be valid.

The Court disagrees. As an initial matter, the Court is

unclear as to how Plaintiff's attack of the award based on

technical deficiencies is proper under § 153 First (q). As

noted above, judicial review of NRAB awards are con-

fined to three specific instances only: (1) failure of the

Adjustment Board to comply with the requirements of the

Railway Labor Act; (2) failure of the Adjustment Board to

conform or confine itself to matters within the scope of its

jurisdiction; and (3) fraud or corruption by a member of

the Board. 45 U.S.C. § 153 First (q)(1986). See Union Pacific

R.R. v. Sheehan, 439 U.S. 89, 93 (1978) (per curiam) (noting

the three instances for judicial review of NRAB awards).

Plaintiff's argument fails to demonstrate under which

prong his attack is proper. Indeed, the only RLA provi-

sion that involves the form of NRAB awards is § 153(m).

That provision states, “The awards of the several divi-

sions of the Adjustment Board shall be stated in writing.”

45 U.S.C. § 153(m) (1986). Such a requirement was satis-

fied in the instant case.

Moreover, Plaintiff’s reliance on the Fourth Circuit

case of Brotherhood of Railway and Steamship Clerks, Freight

Handlers, Express and Station Employees v. Norfolk Southern

Ry. Co., 143 F.2d 1015 (4th Cir. 1944), is inappropriate. The

App. 26

court in that case vacated an arbitration award that, inter

alia, did not contain “the signature of a majority of [the]

board of arbitration affixed to their award” pursuant to

§ 158(g). This provision, however, applies to National

Mediation Boards, not the NRAB. As Defendant points

out, National Mediation Boards are responsible for adju-

dicating “any other disputes not referable” to the NRAB.

45 U.S.C. § 155 First (1986).

While it is undisputed that the NRAB panel members

and Secretary failed to sign Plaintiff’s arbitration award,

the issue here is whether such failure necessarily equates

to the Award being null and void, as Plaintiff asserts.

Based on the requirements of RLA § 153(m) and the

court’s limited review jurisdiction under RLA § 153 First

(q), the Court finds that the lack of signatures or attesta-

tion on the Award are not fatal, and that the Award

should stand.

IV. CONCLUSION

Section 153 First (q) reflects Congress’s intent to limit

judicial review of NRAB arbitral decision to specific,

narrow instances. As Judge Posner observes, the root

question in the railroad arbitration context “is not

whether the arbitrator or arbitrators erred in interpreting

the contract, it is not whether they clearly erred in inter-

preting the contract, it is not whether they grossly erred

in interpreting the contract; it is whether they interpreted

the contract. If they did, their interpretation is conclu-

sive.” Hill v. Norfolk and Western Ry. Co., 814 F.2d 1192,

1195 (7th Cir. 1987) (citation omitted). Underlying this

notion is the fundamental principle that courts may

App. 27

review the actions of the NRAB, but not the actions of the

carrier. Plaintiff's present suit asks this Court to overturn

the award of the NRAB, but essentially asks the Court to

revisit the actions of BNSF. The Court may not do so.

The summary judgment evidence in the instant case

establishes that the NRAB’s findings are rationally infer-

able from the facts before the Board, the dictates of the

collective bargaining agreement, and the RLA. Addi-

tionally, the record and the applicable law does not reflect

any fraud perpetrated by the NRAB, any unreasonable-

ness with regard to the timeliness of the Award, or any

fatal deficiency owing to the lack of signatures on the

Award itself. Therefore, the Court finds that, as a matter

of law, the NRAB award cannot be disturbed. Accord-

ingly, the Court

ORDERS that Plaintiff's Motion for Summary Judg-

ment is DENIED; and

ORDERS that Defendant’s Motion for Summary

Judgment is GRANTED.

SIGNED at Houston, Texas, this 31st day of March,

2000.

/s/ Melinda Harmon

MELINDA HARMON

UNITED STATES

DISTRICT JUDGE

App. 28

Form 1

NATIONAL RAILROAD ADJUSTMENT BOARD

FIRST DIVISION

Award No. 24860

Docket No. 44490

97-1-95-1-A-1975

The First Division consisted of the regular members

and in addition referee Katherine Gerstenberger when

award was rendered.

G.A. Willis

PARTIES TO DISPUTE:

Burlington Northern Santa

Fe Railway Company

(former Atchison, Topeka

and Santa Fe

Railway Company)

ee ee ee

STATEMENT OF CLAIM:

“Claim of Engineer G. A. Willis for rein-

statement to service with full back pay for all

time lost as of January 2, 1991, with seniority

and all other rights restored and unimpaired as

a result of the investigation held June 13, 1994,

at the Assistant Superintendent’s Office of the

Atchison, Topeka and Santa Fe Railway.”

FINDINGS:

The First Division of the Adjustment Board, upon the

whole record and all the evidence, finds that:

App. 29

The carrier or carriers and the employee or

employees involved in this dispute are respectively car-

rier and employee within the meaning of the Railway

Labor Act, as approved June 21, 1934.

This Division of the Adjustment Board has jurisdic-

tion over the dispute involved herein.

Parties to said dispute were given due notice of hear-

ing thereon.

Claimant was employed by the Carrier as a locomo-

tive engineer from April 7, 1979, until his dismissal on

June 27, 1994. On November 4, 1990, Claimant was placed

on a medical leave of absence after he was institu-

tionalized. On January 2, 1991, Claimant presented the

Carrier with a doctor’s release, and requested to return to

service. Carrier informed Claimant that under its policies,

he could not return to active service until he had com-

pleted medical release forms 2820 and 2805. Claimant did

not submit these forms and, consequently, was continued

on medical leave of absence for approximately three

years.

In October 1993, J. L. Hogan, General Chairman of

the Brotherhood of Locomotive Engineers, wrote Carrier

requesting information regarding Claimant’s employment

status. In response, Carrier sent Claimant copies of forms

2820 and 2805 on January 7, 1994, and advised him that

the timely completion of these forms was necessary

before his request to return to service could be consid-

ered. The Carrier further informed Claimant that his fail-

ure to comply with this procedure would subject him to

App. 30

possible disciplinary action for noncompliance with Car-

rier Rules. Claimant was instructed to return the com-

pleted forms within thirty (30) calendar days from the

date of the letter.

In a letter dated January 31, 1994, Claimant stated

that he had completed forms 2820 and 2805, and that they

were enclosed in his January 31 letter in a sealed enve-

lope to preserve confidentiality. The sealed envelope had

been addressed and stamped for mailing to Dr. R. K.

Khuri, the Carrier's Medical Director, in Chicago, Illinois.

Carrier mailed the sealed letter, but, since Dr. Khuri’s

office had moved to a new location, the letter did not

arrive.

On March 15, 1994, after Dr. Khuri’s office informed

Carrier that it had not received Claimant's letter, Carrier

sent Claimant another set of forms 2820 and 2805. Carrier

also enclosed an envelope addressed to Dr. Khuri’s new

address, and advised Claimant that he must return the

forms to Dr. Khuri no later than March 28, 1994. On

March 30, 1994, Claimant requested until May 1, 1994, to

file the completed forms. When the forms had not been

received by Dr. Khuri’s office by May 5, carrier wrote

Claimant advising him that he was being given a final

notice to submit the properly executed forms no later

than May 15, 1994, and that his failure to do so would

result in the scheduling of a formal Investigation for

possible violation of Carrier Rules.

On May 26, 1994, after Claimant failed to submit the

completed medical release forms, he was served with

Notice of Investigation. The Investigative Hearing was

App. 31

held on June 13, 1994. The purpose of the Investigation,

as stated in the May 26 Notice, was to:

”

. . . develop all facts and place [Claimant's]

responsibility, if any, in connection with possible

violation of Rules 1.2.7 and 1.13 of the General

Code of Operating Rules effective April 10,

1994, General Rules A, B, C, 1004 and 1018 of

the Safety and General Rules effective June 30,

1993, and Superintendent's Notice S-50 effective

April 10, 1994, concerning [Claimant's] alleged

failure to comply with instructions in providing

medical information to Dr. Khuri, Santa Fe Med-

ical Director, as instructed per [Carrier’s] letter

of May 5, 1994 and allegedly being absent with-

out leave beginning May 16, 1994.”

Claimant was represented at the hearing by BLE General

Chairman J. L. Hogan. At the hearing, Claimant refused

to answer any questions regarding his failure to provide

Carrier with completed copies of forms 2820 and 2805,

stating “no comment” throughout his examination. He

stated at the close of the hearing that since the Carrier

had caused delays in his reinstatement, he was withdraw-

ing his offer to return to work without back pay, and was

requesting that he be returned to work with full pay and

benefits.

As a result of the Investigation, Claimant was dis-

missed from employment on June 27, 1994. Claimant's

dismissal was appealed by the Organization on August 2,

1994, and its appeal was denied by Carrier on August 17,

1994.

App. 32

Claimant has raised numerous jurisdictional and pro-

cedural arguments, including challenges to the jurisdic-

tion of this Board under the Railway Labor Act, the

timeliness of the Investigation and post-dismissal confer-

ence, the fairness of the Investigation, including the cred-

ibility of the evidence and Carrier’s failure to call certain

witnesses, Carrier’s failure to process Claimant’s appeal

in a timely fashion, and various alleged procedural errors

in the formal record and Carrier’s submission. The Board

has carefully considered each of Claimant's jurisdictional

and procedural contentions, and finds them to be without

merit. We-further find that the claim is properly before

us.

With regard to the merits of the claim, Claimant

argues that he did not request a medical leave of absence,

but, rather, was improperly placed on medical leave by

the Carrier. Claimant further submits that when he pro-

duced two doctors’ releases stating that he was fully

capable of performing his duties, the need for him to file

forms 2805 and 2820 was eliminated. Moreover, Claimant

maintains that Carrier acted in an arbitrary and capri-

cious manner when it held Claimant out of service pend-

ing a hearing and then dismissed Claimant.

The carrier argues that it had just cause to dismiss

Claimant. Carrier emphasizes that it has had a longstand-

ing practice of requiring employees to submit medical

release forms 2820 and 2805 prior to returning to active

service from a medical leave of absence. Moreover, Car-

rier rules require employees to comply with instructions

from supervisors, and prohibit employees from withhold-

ing information regarding unusual events or personal

injuries. Claimant’s refusal to comply with Carrier’s

icine adele

App. 33

instructions to submit forms 2820 and 2802 [sic] violated

these rules. Finally, Carrier asserts that Claimant’s disci-

plinary record supports the discharge penalty. In this

regard, Carrier notes that Claimant previously had been

discharged on three separate occasions during his seven-

teen years of employment with the Carrier.

Upon full consideration of the entire record and the

arguments raised by the parties, the Board finds that

there is substantial evidence to support the Carrier’s

decision to discharge Claimant. The evidence establishes

that Carrier issued Claimant clear instructions to execute

and submit medical release forms 2802 [sic] and 2820, and

gave him extensions of time in which to comply with

these instructions. It was not unreasonable for Carrier to

require Claimant to submit the forms in view of his

lengthy absence from work due to medical reasons. More-

over, the requirement that he submit the forms con-

formed to Carrier’s longstanding practice. Claimant

refused to return the completed forms, however, even

after repeated requests from the Carrier to do so. Claim-

ant’s uncooperative attitude was further demonstrated by

his refusal to testify at the Investigative Hearing.

We find no basis in the record upon which to relieve

Claimant of his obligation to file the medical release

forms required by the Carrier. We further find that the

discipline assessed Claimant was not arbitrary, capricious

or excessive in light of his disciplinary history and his

persistent refusal to provide the medical information

requested by the Carrier.

AWARD

Claim denied.

App. 34

ORDER

This Board, after consideration of the dispute identi-

fied above, hereby orders that an award favorable to the

Claimant(s) not be made.

NATIONAL RAILROAD

ADJUSTMENT BOARD

By Order of First Division

Dated at Chicago, Illinois, this 5th day of November 1997.

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