Petition for Writ of Certiorari — Henegar v. Banta

Supreme Court, u.g

~ FILED

J 94 508 sep 19 joy

No. OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

KENNETH D. HENEGAR,

Petitioner,

We

WILLIAM M. BANTA,

Respondent.

Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

ROBERT B. THOMPSON

Counsel of Record

Monica A. COSCIA

HARRINGTON, THOMPSON, ACKER

& HARRINGTON, LTD.

310 South Michigan Avenue

Suite 2000

Chicago, Illinois 60604

(312) 922-8833

(800) 828-5828

Attorneys for Petitioner

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

TF TRSRGE ee -

i

QUESTION PRESENTED FOR REVIEW

Whether the Sixth Circuit Court of Appeals’ opinion,

decided and filed June 21, 1994, is in direct conflict with

this Court’s Hawaiian Airlines, Inc. v. Finazzo opinion,

decided June 20, 1994?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ....

TABLE OF AUTHORITIES.................

CRUIOIE WIE isc ods oc nkcdkcdccxcems

SRI oie dsnnns vckiveccasiceeioss

STATUTE INVOLVED ................ccece-

STATEMENT OF THE CASE...............

i Ne ere

REASON FOR GRANTING THE WRIT.....

THE DECISION OF THE SIXTH CIRCUIT

COURT OF APPEALS IS IN DIRECT CON-

FLICT WITH A DECISION OF THIS COURT .

CONCLUBMUNS oc cccctsscndudaseueanecensaees

APPENDICES

A—Opinion of the Sixth Circuit Court of Appeals,

decided and filed June 21, 1994............

B—Order of the District Court for the Northern

District of Ohio, granting Respondent’s Motion

for Summary Judgment ...................

C—Affidavit of Ralph Herman................

D—Agreement Between Norfolk and Western Rail-

way Company and the Employees Represented

by the United Transportation Union

iii

TABLE OF AUTHORITIES

Cases PaGE(s)

Hawaiian Airlines, Inc. v. Finazzo,__ U.S. ae

114 S. Ct. 2289 (1994) .................... passim

Lingle v. Norge Div. of Magic Chef, 486 U.S. 399

ECE SESS ae nS passim

eee eens 6, 8

Magnuson v. Burlington N., Inc., 576 F.2d 576

(6th Cir.), cert. denied, 439 U.S. 930 (1978) ... 5

Stephens v. Norfolk & W. Ry., 792 F.2d 576 (6th

ess... ,............., 5

Statute

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

KENNETH D. HENEGAR,

Petitioner,

V.

WILLIAM M. BANTA,

Respondent.

Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion and judgment of the United States Court

of Appeals for the Sixth Circuit is reported at Henegar

v. Banta, No. 93-3315, 1994 WL 266751 (6th Cir. 1994),

and reprinted as Appendix A. The opinion was recom-

mended for full-text publication pursuant to Sixth Cir-

cuit Rule 24. The opinion affirms the judgment of the

United States District Court for the Northern District of

Ohio. The District Court’s Order granting Respondent’s

Motion for Summary Judgment is reported at Henegar

v. Banta, 817 F. Supp. 668 (N.D. Ohio 1993) and reprinted

as Appendix B.

pe

JURISDICTION

The judgment of the United States Court of Appeals

for the Sixth Circuit was decided and filed on June 21,

1994. This Petition is filed within ninety (90) days of that

date. The jurisdiction of this Court to review the judg-

ment on petition for certiorari is provided in Section

1254(c) of the Judicial Code (Title 28 U.S.C. §1254(c)).

STATUTE INVOLVED

The relevant statute involved is §151la(5) of the Railway

Labor Act (“RLA”’), Title 45 U.S.C. §151 et seq., which

provides as follows:

§15la. General purposes

The purposes of the chapter are: . . . (5) to provide

for the prompt and orderly settlement of all disputes

growing out of grievances or out of the interpreta-

tion or application of agreements covering rates of

pay, rules, or working conditions.

STATEMENT OF THE CASE

SUMMARY OF FACTS:

Petitioner Kenneth D. Henegar, a former brakeman for

the Norfolk and Western Railway Company (“N&W’”’),

brought a state law defamation and libel/slander claim

against Respondent William M. Banta, Petitioner’s former

railroad supervisor. This claim was filed in federal district

court on March 13, 1992 pursuant to that court’s diversity

jurisdiction, Title 28 U.S.C. §1332.

On February 4, 1991, while working for N&W, Peti-

tioner experienced abdominal pain after releasing hand-

brakes and while walking the train cars. Petitioner

reported the occurrence to Respondent, his supervisor,

a

who filled out an injury report on Petitioner’s behalf. The

report that Respondent completed in Petitioner’s presence

reported the occurrence as an “injury” caused by a

“strain”. Unbeknownst to Petitioner, however, Respon-

dent destroyed the original re, and replaced it with

a new report which described Fetitioner’s occurrence as

an illness not an injury and omitted any mention of a

“strain”. When Petitioner later filed an insurance claim

for an on-the-job injury he was accused by his employer

of making false statements and giving conflicting reports

regarding the occurrence. N&W conducted a disciplinary

hearing regarding these charges against Petitioner after

which Petitioner was found guilty and his employment ter-

minated.

In his Complaint, Petitioner alleged two instances of

defamation and libel or slander committed by Respondent:

(1) On February 4, 1991, Respondent prepared a false ac-

cident report identifying Petitioner’s on-the-job occurrence

an illness rather than an injury and did not disclose the

existence of the original accident report which correctly

recorded Petitioner’s occurrence as an injury; and (2) Re-

spondent made untrue and defamatory statements about

Petitioner while appearing as a witness at the disciplinary

hearing held by N&W on March 28, 1991. It was not until

Respondent’s July 22, 1992 deposition that Petitioner

learned of yet another instance of defamation against him

committed by Respondent. At the deposition, Petitioner

discovered that Respondent also prepared libelous and

untrue memoranda regarding his conversations with Peti-

tioner concerning Petitioner’s February 4, 1991 occur-

rence.

On January 20, 1993, Respondent filed a Motion for

Summary Judgment asserting that Petitioner’s claims were

preempted by the RLA. Petitioner filed his Response to

-—

Respondent’s Motion on February 16, 1993. In his Re-

sponse, Petitioner advised the court of all three instances

of defamation committed by Respondent. On March 1,

1993 the District Court granted Respondent’s Motion.

Petitioner filed a timely Notice of Appeal on March 23,

1993.

The Sixth Circuit affirmed the trial court’s Order in an

opinion filed June 21, 1994. The Court of Appeals held

that Petitioner’s claim was preempted by the RLA since

the alleged defamatory statements were made in the course

of an investigation and hearing on Petitioner’s personal

injury claim. The court held that, because the investiga-

tion and hearing were conducted in accordance with the

collective bargaining agreement (“CBA’’), the district

court did not err in holding that Petitioner’s defamation

claim was inextricably intertwined with the CBA and

therefore preempted under the RLA. The Court of Ap-

peals specifically refused to extend the standard enunci-

ated by this Court in Lingle v. Norge Div. of Magic Chef,

Inc., 486 U.S. 399 (1988) to RLA cases. Under Lingle,

preemption is appropriate only in those cases where the

action requires interpretation of the CBA.

On June 20, 1994, this Court decided Hawaiian Airlines,

Inc. v. Finazzo, ___. U.S. ___, 114 S. Ct. 2239 (1994).

In that case, this Court did extend the Lingle standard

to RLA cases. Therefore, the Sixth Circuit’s June 21, 1994

opinion was in direct conflict with the decision of this

Court in Hawaiian Airlines, decided one day earlier.

=o

REASON FOR GRANTING THE WRIT

THE DECISION OF THE SIXTH CIRCUIT COURT OF

APPEALS IS IN DIRECT CONFLICT WITH A DECISION

OF THIS COURT.

The decision below should not be permitted to stand.

The opinion of the district court, granting Respondent’s

Motion for Summary Judgment, made no mention of Lingle

or its applicable standard. The court simply held that Peti-

tioner’s state-law defamation claim was “fnextricably inter-

twined” with the CBA, and was thus preempted. (See Ap-

pendix B). In affirming the district court’s opinion, the

Sixth Circuit held that the test for determining whether

a state cause of action is preempted by the RLA is:

‘If the “action is based on a matrix of facts which

are inextricably intertwined with the grievance ma-

chinery of the CBA and of the RLA,” exclusive

jurisdiction of the National Railroad Adjustment

Board (“NRAB”) preempts the action.’

Henegar v. Banta, No. 93-3315, 1994 WL 266751, at *2

(6th Cir. 1994) (quoting Stephens v. Norfolk & W. Ry.,

792 F.2d 576, 580 (6th Cir. 1986); and Magnuson v. Bur-

lington N., Inc., 576 F.2d 1367, 13€9 (9th Cir.), cert. de-

nied, 439 U.S. 930 (1978)), see Appendix A, at A-5.

The Sixth Circuit rejected Petitioner’s argument that

the analysis under this Court’s decision in Lingle should

be applied. In Lingle, this Court determined that a state

law cause of action is preempted by the Labor Manage-

ment Relations Act (“LMRA”) only if the action requires

interpretation of the CBA. The Court of Appeals, how-

ever, refused to extend Lingle beyond LMRA cases.

Henegar, at *3, Appendix A, at A-7.

The opinion below, decided and filed June 21, 1994, is

in direct conflict with this Court’s Hawaiian Airlines, Inc.

~~

v. Finazzo opinion, decided June 20, 1994. In Hawaiian

Airlines, this Court held that the Lingle analysis was ap-

propriate for RLA as well as LMRA cases (“we conclude

that Lingle provides an appropriate framework for ad-

dressing pre-emption under the RLA, and we adopt the

Lingle standard to resolve claims of RLA pre-emption.”’)

Id. at ___, 114 S. Ct. at 2249. This Court expressly

stated that:

‘when the meaning of contract terms is not the sub-

ject of dispute, the bare fact that a collective-bargain-

ing agreement will be consulted in the course of

state-law litigation plainly does not require the claim

to be extinguished.’

Id. at ___ n.8, 114 S. Ct. at 2247 n.8 (quoting Livadas

v. Aubry, ___. US. ‘ , 114 S. Ct. 2068, 2078

(1994); citing Lingle, 486 U.S. 399, 413 n.12 (1988)).

In the case at bar, contract terms are not at issue. Peti-

tioner does not claim that Respondent violated any por-

tion of the CBA, nor does Petitioner contend that any

portion of the CBA is relevant to the instant litigation.

The defamatory statements were made on an accident re-

port, in memoranda penned by Respondent regarding con-

versations with Petitioner, and finally at Petitioner’s

disciplinary hearing. The accident report and memoranda

have absolutely nothing to do with the CBA. Neither of

these items are necessary predicates to a disciplinary

hearing. Furthermore, even Respondent’s defamatory tes-

timony given at Petitioner’s disciplinary hearing does not

involve the CBA for purposes of this lawsuit.

The Court of Appeals’ opinion contains a two sentence

conclusory reference, purportedly applying the Lingle

standard to the facts of this case. The court stated:

= =

even under Lingle, there would be preemption on the

facts of this case because an “unprivileged publica-

tion” is an element of defamation in Michigan, [cita-

tion omitted], and to determine whether Banta’s

remarks are privileged, a court would inevitably have

to interpret the terms of the collective bargaining

agreement since Banta allegedly made these state-

ments during a grievance proceeding mandated by

the collective bargaining agreement. .

Henegar, at *3, Appendix A, at A-8. The court’s cursory

mention of Lingle does not adequately apply the appropri-

ate standard.

First, the foregoing passage fails to address the two

other instances in which Petitioner claims he was de-

famed, namely the falsified accident report and Respon-

dent’s memoranda. As stated previously, neither the ac-

cident report nor the memoranda is a necessary predicate

to a disciplinary hearing and the CBA has no bearing on

them whatsoever. This fact has been acknowledged in the

affidavit of Ralph Herman, Petitioner’s Union Local Chair-

man in 1991 (“the filing of an accident report required

by company rules is an activity separate and apart from

any disciplinary proceeding pursuant to the Collective

Bargaining Agreement.” Appendix C, Affidavit of Ralph

Herman). In fact, the only writing required by the CBA

is a Notice of Hearing (See Appendix D). Neither the ac-

cident report nor Respondent’s memoranda has anything

to do with notice.

Second, the court does not specify what terms of the

CBA would have to be interpreted. The court states that

interpretation of the CBA is necessary to determine whether

Respondent’s “remarks” are privileged, however, no part

of the CBA addresses “privilege” under Michigan law.

Therefore, identification of CBA terms that require inter-

pretation is an impossibility.

-

Finally, even if it were necessary to consult the CBA

to determine whether Respondent’s statements were privi-

leged under state law, this Court has held that this is

not enough to require preemption of a state law claim

under the RLA. Hawaiian Airlines, at ____ n.8, 114 S.

Ct. at 2247 n.8. Because the meaning of the terms of the

CBA is not in dispute, “ ‘the bare fact that a collective-

bargaining agreement will be consulted in the course of

state-law litigation plainly does not require the claim to

be extinguished.’ ” Id., (quoting Livadas v. Aubry, —_

US. ; , 114. S. Ct. 2068, 2078 (1994), citing Lingle,

486 U.S. 399, 413 n.12 (1988)). In this case, there is no

dispute over how to give effect to the terms of the CBA.

Petitioner merely seeks to pursue his state-law defama-

tion claim against Respondent, a claim which is clearly

independent of the CBA. Therefore, this case does not

constitute a “grievance” within the meaning of the RLA,

and federal preemption under that Act is inappropriate.

The issues involved in this case do not require interpre-

tation of any term of the CBA. Petitioner’s state law

claim is therefore independent of the CBA and not pre-

empted by the RLA. Thus, the decision of the Sixth Cir-

cuit Court of Appeals should not stand and Petitioner’s

claim should be construed in accordance with this Court’s

applicable precedent.

~

CONCLUSION

Therefore, Petitioner respectfully requests that this

Court grant certiorari to review the judgment below and

reverse the decision of the district court and remand this

cause for a full hearing on the merits. In the alternative,

Petitioner respectfully requests that this Court vacate the

opinion of the Sixth Circuit Court of Appeals and remand

for a determination of whether Petitioner’s claim is pre-

empted by the RLA in light of this Court’s Hawaiian

Airlines decision.

Respectfully submitted,

ROBERT B. THOMPSON

Counsel of Record

Monica A. COoscIA

HARRINGTON, THOMPSON, ACKER

& HARRINGTON, LTD.

310 South Michigan Avenue

Suite 2000

Chicago, Illinois 60604

(312) 922-8833

(800) 828-5828

Attorneys for Petitioner

APPENDICES

A-1

APPENDIX A

9 Indiv.Empl.Rts.Cas. (BNA) 993

Kenneth D. HENEGAR, Plaintiff-Appellant,

v.

William M. BANTA, Defendant-Appellee.

No. 93-3315.

United States Court of Appeals,

Sixth Circuit.

June 20, 1994.

On Appeal from the United States District Court for

the Northern District of Ohio

Before RYAN and NORRIS, Circuit Judges; and BER-

TELSMAN, Chief District Judge.*

RYAN, Circuit Judge.

In an order granting summary judgment, a federal dis-

trict court dismissed Kenneth D. Henegar’s defamation

suit against William M. Banta, his former superior at the

Norfolk and Western Railway Company, 817 F.Supp. 668.

Henegar has appealed and presents us with a single issue:

whether the district court erred in concluding that Hene-

gar’s defamation claim was “inextricably intertwined” with

the collective bargaining agreement between Henegar’s

union and the railroad, and consequently, was preempted

under the Railway Labor Act. 45 U.S.C. Sec. 151 et seg.

We think the district court did not err and we affirm.

MHS og alae edhe org eller erghier are

ict Judge for astern District of Kentucky, sitting by

designation.

A-2

I.

Henegar was a brakeman for Norfolk and Western Rail-

way Company; Banta was his supervisor. Henegar’s em-

ployment was governed by a collective bargaining agree-

ment between his union, the United Transportation Union,

and Norfolk and Western. On February 4, 1991, Henegar

began to suffer stomach pains while at work. He drove

himself to the hospital and there he was told that he had

a hernia. Banta met Henegar at the hospital and then

drove him back to work. Banta claims that during the

drive back, Henegar said that he had known for some

time that he had a hernia but was afraid to have surgery.

Subsequently, Henegar had his hernia repaired and filed

a claim with the railroad, alleging that the hernia was a

work-related injury. Upon learning of this, Banta charged

Henegar under the collective bargaining agreement with

giving false and conflicting statements about his alleged

injury. The railroad scheduled a hearing to investigate.

At the hearing, Banta testified that Henegar told him

that he had been aware of the hernia for at least one

year. The railroad also introduced hospital records which

indicated that Henegar had long been aware of the hernia.

The hearing officer found that Henegar’s claim of a work-

related injury was inconsistent with the hospital records

and the statements he made to Banta. Based on this find-

ing, the hearing officer dismissed Henegar from his rail-

road employment. On appeal, a public law board affirmed.

Henegar then filed the diversity action in federal district

court alleging that Banta had defamed him by making

false statements at the hearing and in an accident report

and other memoranda. Henegar’s evidence was primarily

Banta’s notes regarding the incident and two copies of

a “Report of Personal Injury/Illness Incident,” both dated

February 4, 1991.

A-3

Banta moved for summary judgment, which the district

court granted, after concluding that Henegar’s defama-

tion suit was preempted by the Railway Labor Act be-

cause it was “inextricably intertwined” with the collec-

tive bargaining agreement. Now, on appeal, Henegar

claims the district court erred in concluding that the

defamation suite was preempted because the determina-

tion of Henegar’s state law claim will not require an in-

terpretation of the collective bargaining agreement.

II.

We review a grant of summary judgment de novo and

use the same test as used by the district court. Brooks

v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.

1991). In reviewing summary judgment motions, courts

must view the evidence in the light more favorable to

the nonmoving party to determine whether a genuine

issue of material fact exists. Adickes v. S.H. Kress & Co.,

398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142

(1970). Under Fed.R.Civ.P. 56(c), summary judgment is

proper if all the evidence before the district court

“ ‘show{s] that there is not genuine issue as to any ma-

terial fact and that the moving party is entitled to [a]

judgment as a matter of law.’ ” Canderm Pharmacal, Ltd.

v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.

1988) (quoting Fed.R.Civ.P. 56(c)). Once the moving party

has met its burden of production, the nonmoving party

must go beyond the pleadings, and by affidavits, or by

“ ‘depositions, answers to interrogatories, and admissions

on file,’ designate ‘specific facts showing that there is a

genuine issue for trial.’ ”’ Celotex Corp. v. Catrett, 477

U.S. 317, 324, 106 S.Ct. 2548, 2558, 91 L.Ed.2d 265 (1986)

(quoting Fed.R.Civ.P. 56(e)).

A-4

{Il.

The Railway Labor Act (RLA) governs labor relations

in the railroad industry. The RLA does not explicitly ad-

dress the issue of preemption but it does set out some

general purposes:

(1) To avoid any interruption to commerce or to the

operation of any carrier engaged therein; (2) to forbid

any limitation upon freedom of association among em-

ployees or any denial, as a condition of employment

or otherwise, of the right of employees to join a labor

organization; (3) to provide for the complete indepen-

dence of carriers and of employees in the matter of

self-organization to carry out the purposes of this

chapter; (4) to provide for the prompt and orderly

settlement of all disputes concerning rates of pay,

rules, or working conditions; (5) to provide for the

prompt and orderly settlement of all disputes grow-

ing out of grievances or out of the interpretation or

application of agreements covering rates of pay, rules,

or working conditions.

45 U.S.C. Sec. 15la. As part of its mandate, the RLA

directs employers and employees in the railroad industry

to resolve most job-related disputes without recourse to

the courts. Id. at Secs. 152, 153.

The RLA .. . provides a comprehensive framework

for the resolution of labor disputes in the railroad in-

dustry . . . [by] establish[ing] elaborate administrative

procedures for the resolution of both major and minor

labor disputes. . . Minor disputes initially must be

dealt with through a railroad’s internal dispute resolu-

tion processes, and if not settled there, may be sub-

mitted to a division of the Adjustment Board, or to

a Public Law Board, which is an arbitration board

chosen by the parties.

Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S.

557, 562-63, 107 S.Ct. 1410, 1414, 94 L.Ed.2d 563 (1987)

(footnote omitted).

A-5

The RLA gives the National Railroad Adjustment Board

(NRAB) exclusive jurisdiction over “minor” disputes that

arise out of collective bargaining agreements. Union Pacific

R.R. Co. v. Sheehan, 439 U.S. 89, 93-94, 99 S.Ct. 399,

402, 58 L.Ed.2d 354 (1978)). A dispute is “minor” under

the RLA if grows “ ‘out of grievances or out of the inter-

pretation or application of agreements concerning rates

of pay, rules, or working conditions.’ ” Atchison, 480 U.S.

at 563, 107 S.Ct. at 1414 (quoting 45 U.S.C. Sec. 153(i)).

“The final and exclusive jurisdiction of the Board has a

broad sweep; no grievance that may fairly be said to stem

from the collective bargaining agreement is excluded.”

Beard v. Carrollton R.R., 893 F.2d 117, 121 (6th Cir.

1989).

In certain instances, the NRAB’s exclusive jurisdiction

over minor disputes will preempt an employee’s state law

claim. In Stephens v. Norfolk and Western Railway Co.,

792 F.2d 576 (6th Cir. 1986), this circuit announced a test

for determining whether a state cause of action is pre-

empted under the RLA: “If the ‘action is based on a

matrix of facts which are inextricably intertwined with

the grievance machinery of the collective bargaining

agreement and of the R.L.A.,’ exclusive jurisdiction of the

NRAB preempts the action.” Id. at 580 (quoting Magnu-

son v. Burlington N., Inc., 576 F.2d 1367, 1369 (9th Cir.),

cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323

(1978)).

Other courts have held that the RLA preempts state

law claims based on libel and slander. In Edelman v.

Western Airlines, Inc., 892 F.2d 839 (9th Cir.1989), an

airline fired a flight attendant for stealing. The flight at-

tendant sued for, among other things, defamation. The

Ninth Circuit held that her defamation claim was inex-

tricably intertwined with the collective bargaining agree-

A-6

ment because, in assessing the validity of the claim, the

court would have “to analyze the Agreement to decide

whether Edelman’s discharge was justified.” Id. at 844.

In Miller v. Norfolk & Western Railway Co., No. 89- -

4101, 1990 WL 163302, at *4, 1990 U.S.App. LEXIS 19129,

at *7 (6th Cir. Oct. 25, 1990), we held that the RLA pre-

empted an employee’s claim that his supervisor made de-

famatory remarks about him during a disciplinary investi-

gation. We reasoned that because the alleged defamatory

statements were accusations made during an investiga-

tion and hearing conducted under a collective bargaining

agreement, the defamation claim was inextricably inter-

twined with the collective bargaining agreement:

The exclusive jurisdiction of the NRAB over minor

disputes was created “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 of pay, rules, or work-

ing conditions.” 45 U.S.C. Sec. 15la. If we were to

permit a claim like the plaintiffs to evade the juris-

diction of the board, “the congressional oe of

providing a comprehensive federal scheme for the set-

tlement of employer-employee disputes in the rail-

road industry, without resort to the courts, would be

thwarted.’”’ Magnuson, 576 F.2d at 1369. Claims tha that

relate to matters covered in or by grievance ee

ings must be preempted by the RLA, or e they

will have a chilling effect on these proceedings. The

inquiry, therefore, must focus on the claim’s relation

to the proceedings under the [collective bargaining

ment] as a whole, and not on whether specific

issues would be addressed in both the state law claim

and the grievance proceedings.

Id. at *5, 1990 U.S. App. LEXIS 19129, at *14-15.

The same reasoning applies here: The alleged defama-

tory statements in this case were Banta’s accusations that

A-7

Henegar was not injured on the job but rather that he

suffered from a prolonged, preexisting illness. Banta made

these statements in the course of an investigation of Hen-

egar’s personal injury claim. The investigation and the

hearing were conducted in accordance with the collective

bargaining agreement. Consequently, we conclude that the

district court did not err in holding that Henegar’s

defamation claim was inextricably intertwined with the

collective bargaining agreement and preempted under the

RLA.

Henegar argues, however, that under Lingle v. Norge

Division of Magic Chef, Inc., 486 U.S. 399, 1081 S.Ct.

1877, 100 L.Ed.2d 410 (1988), a state law claim is pre-

empted only if the action requires interpretation of the

collective bargaining agreement. Lingle, however, dealt

with preemption under the National Labor Relations Act,

and we have declined to extend Lingle beyond NLRA

cases. See Smolarek v. Chrysler Corp., 879 F.2d 1326,

1334-35 n. 4 (6th Cir.) (en banc ), cert. denied, 493 U.S.

992, 110 S.Ct. 539, 107 L.izd.2d 537 (1989). On reviewing

both the RLA and the NLRA, the Supreme Court has

observed: “the analysis . . . under each statute is quite

distinct.” Buell, 480 U.S. at 565, 107 S.Ct. at 1415. In

short, preemption under the RLA is more pervasive.! See,

e.g., Underwood v. Venango River Corp., 995 F.2d 677,

680-81 (7th Cir.1993); Lorenz v. CSX Transp., Inc., 980

F.2d 263, 268-69 (4th Cir.1992); Hubbard v. United Air-

lines, Inc., 927 F.2d 1094, 1097 (9th Cir.1991). The

1 McCall v. e & Ohio Ry. Co., 844 F.2d 294 (6th Cir.),

cert. denied, 488 U.S. 879, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988),

an RLA case, was decided before Lingle. A su uent order

denying rehearing in that case states that Lingle woul not

the result of that case; the order says nothing more. Id. at 304.

A-8

language of the RLA itself is broader in that it purports

to cover “disputes between an employee or group of em-

ployees and a carrier or carriers growing out of grievances

or out of the interpretation or application of agreements.”

45 U.S.C. Sec. 153(i). The NLRA, in contrast, is limited

to the “violation of contracts between an employer and

a labor organization.” 29 U.S.C. Sec. 185(a). In sum, we

decline to extend Lingle to an RLA case. But even under

Lingle, there would be preemption on the facts of this

case because an “ ‘unprivileged publication’ ”’ is an ele-

ment of defamation in Michigan, New Franklin Enter-

prises v. Sabo, 192 Mich.App. 219, 480 N.W.2d 326, 328

(1991) (citation omitted), appeal denied, 439 Mich. 951, 482

N.W.2d 760 (1992), and to determine whether Banta’s re-

marks are privileged, a court would inevitably have to

interpret the terms of the collective bargaining agreement

since Banta allegedly made these statements during a

grievance proceeding mandated by the collective bargain-

ing agreement.

Accordingly, we AFFIRM.

B-1

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No. 3:92CV7152

Kenneth D. Henegar, Plaintiff

VS.

William M. Banta, Defendant

OPINION AND ORDER

Potter, J.:

This cause is before the Court on defendant’s motion

for summary judgment and plaintiff's opposition. A former

brakeman with Norfolk and Western Railway Company,

plaintiff was allegedly defamed by his supervisor who

claimed that Mr. Henegar gave false and conflicting

statements regarding an injury that occurred on February

4, 1991.

Under the Federal Rules of Civil Procedure, sum-

mary judgment is p only where there is no gen-

uine issue of material fact and the moving party is

entitled to ju t as a matter of law. Fed. R. Civ.

P. 56(c). The Supreme Court has recently stated that

Me inquiry is ‘‘whether the econ presents a Suf-

cient disagreement to ire submission to a jury

to whether it is so sialon thet one party must pre-

vail as a matter of law.” Anderson v. Liberty Lobby,

Inc., 106 S. Ct. 2505, 2512 (1986). . . . In reviewing

a motion for summary judgment, however, all infer-

el

B-2

ences “‘ ‘must be viewed in the light most favorable

to the party opposing the motion.’ ” See Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 106 S. Ct.

1348, 1356-57 (1986) (quoting United States v. Diebold,

Inc., 369 U.S. 654, 655 (1962)).

Ralph Shrader, Inc. v. Diamond International Corp., 833

F.2d 1210, 1213 (6th Cir. 1987).

The party moving for summary judgment “always bears

the initial responsibility of informing the district court of

the basis for its motion, and identifying those portions

of ‘the pleading, depositions, answers to interrogatories,

and admissions on file, together with the affidavits if any’

which [he] believes demonstrate the absence of a genuine

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). The substantive law of the case identifies

which facts are material. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). Therefore, only disputes of facts

affecting the outcome of the suit under the applicable sub-

stantive law will preclude the entry of summary judg-

ment. Jd. A moving party may discharge its burden “by

‘showing’—that is, pointing out to the support the non-

moving party’s case.” Celotex, 477 U.S. at 324-325. Where

the moving party has met its initial burden, the adverse

party “must set forth specific facts showing that there

is a genuine issue for trial.” Anderson, 477 U.S. at 250.

[W]here the nonmoving party will bear the burden

of proof at trial on a dispositive issue, a summary

judgment motion may properly be made in reliance

solely on the > ents, depositions, answers to inter-

rogatories, and admissions on file.”. . . Rule 56(e)

therefore requires the nonmoving ; to go beyond

the pleading and by her own affidavits, or by the

“depositions, answers to interrogatories, and admis-

sions on file,” designate “specific facts showing that

there is a genuine issue for trial.”

Celotex, 477 U.S. at 324.

DP. OL AE CU ica, CPC TTT ES IOS Le EER OTE GO EE De GI eG OR Re Doe Te eet ee eg ete ae

ee Pee ae

B-3

As noted above, plaintiff was employed as a brake-

man by the Norfolk and Western Railway Company. De-

fendant was his supervisor. Plaintiff was covered by a

collective bargaining agreement between United Trans-

portation Union and his employer. Plaintiff asserts that

on February 4, 1991, he began to suffer stomach pains

and while at work at a switching yard in Milan, Mich-

igan. At the hospital he was told that he had a hernia.

Part of the controversy centers on whether Henegar was

aware of this condition for many months prior to this

incident or if the hernia was caused by a work-related

injury.

In any event, after plaintiff made a statement to the

railroad claims agent asserting that the injury was in fact

work related, defendant formally charged him under the

collective bargaining agreement with having provided false

and conflicting statements concerning his alleged injury.

As required by the agreement, a disciplinary hearing was

held on March 28, 1991. Plaintiff was represented by the

union local chairman. Banta testified that Henegar had

told him that he had been aware of the hernia for at

least one year and that he had been postponing surgery

recommended by his physician. Apparently, the Saline

Community Hospital records, which also reflected that

Henegar had long been aware of the hernia, were also

apparently introduced. Presented with this evidence, the

hearing officer found against plaintiff. On appeal, the

public law board affirmed the decision dismissing Hene-

gar.

Plaintiff is now before this Court asserting that defen-

dant defamed him. The amended complaint alleges that

The statements made by defendant against plaintiff

at said investigation were false. The effect of defen-

dant’s false statements in the presence of three wit-

B-4

nesses was to brand the plaintiff as a liar and a cheat

and an attack on his reputation and character which

up to that time was unblemished.

Plaintiff further alleges that as a proximate result he lost

his job and his reputation was irreparably damaged. Plain-

tiff’s opposition has attached as exhibits 1 and 2 copies

of a “report of personal injury/illness incident” both dated

February 4, 1991 that purport to show that defendant

changed the type and source of injury from “strain” to

“iliness.” Plaintiff alleges that the second report, indi-

cating illness, was submitted at the disciplinary hearing

and that the hearing officer was purposely mislead into

believing that the second report was an accurate duplica-

tion of the information contained in the original report.

Exhibit 3 is the progress notes of Banta that rack the

events concerning the February 4th incident which indi-

cate that defendant believed that Henegar’s injury was

not the result of an injury sustained while working for

the railroad. The Court has reviewed defendant’s deposi-

tion testimony and the explanation given therein for the

existence of the two reports as well as plaintiff's deposi-

tion and the exhibits thereto. Nevertheless, any conclu-

sion that might be drawn from all the evidence contained

in the record is irrelevant if there is no subject matter

jurisdiction.

The Railway Labor Act gives the National Railroad

Adjustment Board exclusive jurisdiction over disputes

that arise out of collective bargaining agreements.

The final and exclusive jurisdiction of the Board has

a broad sweep; no grievance that may fairly be said

to stem from the collective bargaining agreement is

excluded.

The pertinent question here is . . . whether the “ac-

tion is based on a matrix of facts which are inex-

tricably intertwined [sic] with the grievance machinery

B-5

of the collective bargaining agreement and the R.L.A.”

Stephens v. Norfolk & W. Ry., 792 F.2d 576, 580 (6th

Cir. 1986), amended, 811 F.2d 286 (6th Cir. 1986).

Beard v. Carrollton R.R., 893 F.2d 117, 121-22 (6th Cir.

1989) (citations omitted). This inextricably intertwined test

is the same one used by the Supreme Court in cases un-

der §301 of the Labor Management Relations Act. See

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985).

Nevertheless, “{tJhe standards under the two statutes may

not be identical. The Railway Labor Act makes all griev-

ances arising out of the collective bargaining agreement

subject to arbitration, and it is probably more likely that

a state claim will interfere with federal interests in the

context of the statute.” Beard, 893 F.2d at 122.

Upon review of the record, the Court finds that plain-

tiff’s claims are inextricably intertwined with the Collec-

tive Bargaining Agreement (Agreement). The personal in-

jury reports complained of by plaintiff were required as

part of the normal investigatory function of plaintiff's

supervisor and a predicate to any disciplinary action

against a union employee under the Agreement. The re-

sult of that investigation led to a disciplinary action

against a union employee under the Agreement. The re-

sult of that investigation led to a disciplinary hearing. The

hearing officer found that the plaintiff did not incur a

hernia injury on February 4, 1991 and that plaintiff was

guilty of falsification of an alleged personal injury. This

finding was upheld on appeal to the public law board. The _

prior proceedings have already specifically considered the

veracity of plaintiff and defendant. Although defamation

was not an issue before the board, whether plaintiff lied

to the company was at issue. Therefore, the plaintiff's

defamation claim is based upon a matrix of facts that are

inextricably intertwined with the collective bargaining

agreement.

B-6

This finding is consistent with other district courts that

have considered this question:

This letter clearly was written for the sole purpose

of complying with the specific notice requirements of

Article 31, entitled “Investigation and Discipline’, of

the collective bargaining agreement my re-

lationship between Plaintiff and Southern. Plaintiff's

libel claims thus bear a substantial relationship to the

collective bargaining agreement, and are “based upon

a matrix of facts which are inextricably intertwined

with the grievance machinery of the collective bar-

gaining agreement and of the RLA”, and are as a

result preempted by the RLA. Any contrary result

would effectively chill the employer’s ability to in-

voke the disciplinary article of the agreement, or

even to notify the employee either of its intent to

invoke the disciplinary article or of the charges

against that employee, without risking subsequent lia-

bility for libel and/or defamation. See Miller v. Nor-

folk & Western, cited supra, slip op. at 7-8 (“Claims

that relate to matters covered in or by grievance pro-

ceedings must be preempted by the RLA, or else

they will have a chilling effect on these proceed-

ings.”). Therefore, the Court finds plaintiff's claims

under Counts III and IV of his Complaint to be pre-

empted by the RLA.

Fox v. Southern Ry. Co., 764 F. Supp. 644, 650 (N.D.

Ga. 1991).

The RLA also bars Fe n’s suit for defamation

against Berry and NS. While defamatory statements

are not covered specifically by the collective bargain-

ing agreement between NS and BRAC, the fact that

a claim is not expressly addressed by an agreement

is immaterial for purpose of cove by the RLA.

Elgin J. & E. Ry. v. Burley, 325 U.S. 711, 723, 65

S. Ct. 1282, 1289, 89 L.Ed. 1886 (1945). Investiga-

tions of employee complaints are covered by the NS-

BRAC agreement and are normal incidents of the

employer-employee relationship. Majors v. U.S.

B-7

Air, Inc., 525 F. Supp. 853, 857 (D. Md. 1981). Any

dispute arising out of such an investigation, includ-

ing a charge of defamation, should fail within the

NRAB’s exclusive jurisdiction. See, e.g., Miller v.

Norfolk & Western Ry. Co., No. 83-3652, slip op.

(N.D. Ohio 1984) Farley v. Hayes, 112 L.R.R.M. 2298

(S.D. Ill. 1982) [1982 WL 2040]; Majors, Supra, 525

F. Supp. at 853; Carson v. Southern Ry. Co., 494 F.

Supp. 1104 (D.S.C. 1979). Thus even if Berry did de-

fame Ferguson when she remarked about him during

officer Moorman’s interview, then that issue can be

resolved only by the NRAB. This court, however, is

without jurisdiction to address that issue.

Ferguson v. Norfolk Southern Corp., 704 F. Supp. 666,

670 (W.D.Va. 1987).

Furthermore, it can fairly be said that plaintiff's claim

is based on some incident of the employment relationship.

Such a finding was found to be sufficient to preclude juris-

diction under RLA in Majors v. U.S. Air, Inc., 525 F.

Supp. 853 (D.Md. 1981); accord, Miller v. Norfolk & West-

ern Ry. Co., 1990 U.S. App. Lexis 19129 (6th Cir. 1990)

(unpublished). The fact that plaintiff has named an in-

dividual, rather than the corporate, defendant does not

change the nature of this collateral attack on the judg-

ment of the public law board. “As in Mangnuson,' the

plaintiff here has attempted to restyle claims which are

basically identical to those which should be considered by

the National Railway Adjustment Board, and the Court

cannot allow the plaintiff's ‘artful pleading’ to evade the

mandatory arbitration provisions of the Railway Labor

ae

B-8

Act.” Gray v. Chessie System, 588 F. Supp. 1334, 1337

(D. Md. 1984); accord, Fox v. Southern Ry. Co., 764 F.

Supp. 644 (N.D. Ga. 1991).

The Court finds that it does not have subject matter

jurisdiction to hear plaintiff's cause of action as it is a

“minor dispute” stemming from the interpretation or ap-

plication of an existing collective bargaining agreement.

In Andrews v. Louisville & Nashville R.R. Co., 406 U.S.

320, 325 (1972), the Supreme Court held that

The term “exhaustion of administrative remedies” in

its broader sense may be an entirely appropriate

description of the obligation of both the employee and

carrier under the Railway Labor Act to resort to

dispute settlement procedures provided by that Act.

It is clear, however, that in at least some situations

the Act makes the federal administrative remedy ex-

clusive, rather than merely requiring exhaustion of

remedies in one forum before resorting to another.

A party who has litigated an issue before the Ad-

justment Board on the merits may not relitigate that

issue in an independent judicial proceeding. Union

Pacific R. Co. v. Price, 360 U.S. 601 (1959). He is

limited to the judicial review of the Board’s proceed-

ings that the Act itself provides. Gunther v. San

Diego & A.E.R. Co., 382 U.S. 257 (1965). In such a

case the proceedings afforded by 45 U.S.C. §153 First

(i), will be the only remedy available to the aggra-

vated party.

THEREFORE, for the foregoing reasons, good cause ap-

pearing, it is

ORDERED that defendant’s motion for summary judg-

ment be, and hereby is, GRANTED; and it is

FURTHER ORDERED that all other pending motions

are DENIED as moot.

/s/

Sr. United States District Judge

C-1

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

No. 3:92-CV-7152

JUDGE JOHN W. POTTER

KENNETH D. NE

E D. HENEGAR, Plaintiff,

WI M.

LLIAM BANTA, Defendant.

AFFIDAVIT OF RALPH HERMAN

Ralph M. Herman, being first duly sworn on oath, de-

poses and states as follows:

1. That I am an employee of the Norfolk Southern

Railway Company;

2. That in January, February and March of 1991, I was

the Union Local Chairman for Trainman, Kenneth D.

Henegar;

3. That the Collective Bargaining Agreement applicable

to such Disciplinary Hearings does not provide for any

neutral or independent person to be the Finder of Fact.

The Finder of Fact is chosen exclusively by the railroad

management and is always a management or carrier of-

ficial.

4. That the Collective Bargaining Agreement does re-

quire an official charge letter to be sent to the employee

as well as a written Notice of Discipline.

C-2

5. That the Collective Bargaining Agreement does give

the employee an opportunity to be present at the Disci-

plinary Hearing, give whatever evidence he so chooses,

and also prescribes certain time limits for action by the

carrier.

6. That the Management Official, or Finder of Fact at

the Disciplinary Hearing makes his determination based

upon evidence presented at the hearing. Typically, the

evidence is provided by individuals who have direct knowl-

edge of the facts or circumstances which are allegedly

under investigation.

7. That in my experience, the witnesses can be carrier

officials, other trainmen, clerical staff, documentary evi-

dence, sometimes medical personnel or records, as well

as other persons who are not employees of the railroad

at all.

8. That the charged employee has no right to have an

attorney present. Further, it is unusual to ever receive

copies of documents to be introduced at the hearing by

management prior to the hearing. As such, there is very

little advance opportunity to review evidence which will

be presented. In the case of Mr. Henegar, I had no op-

portunity to review any of the documentary evidence prior

to the hearing.

9. That it is my understanding, that as a supervisor,

Mr. Banta has a duty to report on the accident report

the words as Mr. Henegar told him. Unknown to me at

the hearing, Mr. Banta prepared two very different acci-

dent reports regarding Mr. Henegar’s occurrence of Feb-

ruary 4, 1991, but never revealed the existence of the

original accident report which more accurately reflected

what Mr. Henegar told him.

C-3

10. That at the hearing, I objected to the fact that Mr.

Banta had discussed the allegations against Mr. Henegar

with the hearing officer, Don Kimbrough, the day before

the hearing. My objection was overruled. After hearing

that both Mr. Kimbrough and Mr. Banta now admit that

they discussed the facts to be presented against Mr. Hen-

egar, I feel that is further indication and conclusive proof

that these situations of company disciplinary hearings are

not presented to a neutral or independent fact finder.

11. That there is no provision in the Collective Bargain-

ing Agreement where train service employees or members

of the United Transportation Union in any way agree to

be bound by the determinations of the hearing officer.

12. That the filing of an accident report required by

company rules is an activity separate and apart from any

disciplinary proceeding pursuant to the Collective Bargain-

ing Agreement.

/s/

RALPH M. HERMAN

STATE OF )

COUNTY OF }+ss

SUBSCRIBED and SWORN TO before me

this day of , 19

/s/

NOTARY PUBLIC

My commission expires:

7

4

D-1

APPENDIX D

AGREEMENT

between

NORFOLK AND WESTERN RAILWAY COMPANY

AND THE EMPLOYEES REPRESENTED BY THE

UNITED TRANSPORTATION UNION (C-T-E)

It is agreed that effective April 30, 1984, Article 38 of

the Schedule for Conductors and Brakemen, revised June

15, 1979; Article 15 of the Schedule for Yardmen, effec-

tive July 1, 1982; and Rule 51 of the Scheduie for Fire-

men, revised October 1, 1977, are superseded by the fol-

lowing Discipline Rule and Procedures:

SECTION A. General Requirements

1. An employee shall not be discharged, suspended or

otherwise disciplined without just cause and without a fair

and impartial hearing, except that an employee may waive

a hearing in accordance with Section B(2) of this Agree-

ment.

2. An employee shall not be held from service pending

hearing except in serious cases, such as theft, altercation,

Rule “G’: violation, insubordination, major accidents,

serious misconduct and major offenses whereby the em-

ployee’s retention in service could be hazardous.

SECTION B. Formal Hearing

1. Notice of Hearing

(a) An employee directed to attend a formal hear-

ing to determine the employee’s responsibility, if any, in

D-2

connection with an occurrence or incident shall be notified

in writing by certified mail, return receipt requested, to

the last known address within a reasonable period of time

but not to exceed ten (10) days from the date of occurr-

ence, or where the occurrence is of a nature not immedi-

ately known to the employee’s supervisor(s), from the time

they first have knowledge thereof. The notice shall con-

tain a clear and specific statement of the date, time, place

and nature of the occurrence or incident that is to be the

subject of the hearing. The notice shall be sent in dupli-

cate in order that the employee may transmit a copy to

the employee’s representative if the employee desires.

NOTE: This rule does not preclude delivery of the notice

at reasonable times by a Carrier representative. Such de-

livery at the employee’s home shall be made only when

other means of delivery are not practicable.

(b) The notice shall state the date, time and place

the hearing is to be held which shall not be less than five

(5) days after the date of notification or more than ten

(10) days after the date of notification unless otherwise

agreed to.

(c) The Carrier will have the responsibility of pro-

ducing sufficient witnesses to develop the facts concern-

ing the incident or occurrence being investigated and the

notice of hearing shall include the name of each person

receiving the notice and the names of all witnesses known

at the time of the notice that the Carrier intends to have

in attendance at the hearing. The employee or the em-

ployee’s representative may bring to the attention of the

responsible Carrier official the name or names of other

witnesses who may provide material facts.

(d) The notice shall inform each employee so noti-

fied of the right to representation and to bring in wit-

nesses.

D-3

(e) If an employee who is to receive a notice of

hearing will not be permitted to exercise the option under

Section B(2) of this Agreement, the notice of hearing so

shall so specify.

2. Waiver of Hearing

(a) An employee who has been notified to appear

for a hearing shall have the option, prior to the hearing,

to discuss with the appropriate Carrier official, either per-

sonally, through or with the employee’s representative,

the act of occurrence and the employee’s responsibility,

if any.

If disposition of the charges is made on the basis of the

employee’s acknowledgement of responsibility, the disposi-

tion shall be reduced to writing and signed by the em-

ployee and the official involved and shall incorporate a

waiver of hearing and shall specify the maximum discipline

which may be imposes for employee’s acceptance or re-

sponsibility.

Disposition of cases under this paragraph (a) shall not

establish precedence in the handling of any other cases.

(b) No minutes or other record will be made of the

discussions and, if the parties are unable to reach an

agreed upon disposition on this basis, no reference shall

be made to these discussions by either of the parties in

any subsequent handling of the charges under the disci-

pline procedure.

3. Postponements of Hearing

(a) Consistent with the provisions of Section A. 1

for a fair and impartial hearing, postponements of the for-

mal hearing may be requested by either party on reason-

able grounds and consent shall not be unreasonably with-

held.

D-4

4. Conduct of Hearing

(a) The hearing shall be conducted by an officer of

the employing Carrier who may be assisted by other offi-

cers. If practicable to do so, the hearing shall be held at

the home terminal of the employee involved or in cases

where more than one employee is involved at the home

terminal of the majority of the employees.

NOTE: When another Carrier is involved, this will not

preclude an officer of that Carrier from conducting the

hearing or assisting in the hearing recognizing, in any

case, that there shall be only one presiding (hearing)

officer.

(b) The employee shall have the right to be repre-

sented at the hearing by an employee or an organization

representative of the employee’s own choosing. The em-

ployee and/or the employee’s representative shall have the

right to introduce witnesses in the employee’s behalf, to

hear all testimony introduced, and to question all wit-

nesses.

(c) An employee’s personal service record will not

be included in or referred to in the hearing or in the

transcript of the proceedings of the hearing. The em-

ployee’s personal record may be taken into consideration

in assessing the amount of discipline imposed, if any.

(d) If the formal hearing is not held within the time

limits specified in Section B. 1(b), the employee will not

be disciplined, will be paid for all time lost, and no dis-

ciplinary entry will be made in the employee’s personal

service record.

(e) The employee and witnesses will be permitted

time off if requested in order to have sufficient rest prior

to and following the hearing.

D-5

SECTION C. Transcript of Hearing

1. It is recognized that the Carrier is responsible for

ensuring that an accurate transcript of the hearing pro-

ceedings is made. However, this will not preclude the em-

ployee or employee’s representative from making a record

of the proceedings for their own use.

2. If, during the hearing, a partial transcript is made

prior to conclusion of the hearing such partial transcript

will be made available to the employee and employee’s

representative upon request. If electronic recording de-

vices are used and recording are available for review by

Carrier officials, they also shall be made available upon

request for review by the employee and employee’s repre-

sentatives at the appropriate Carrier facility.

3. In any cases where discipline is assessed, or in cases

where discipline is not assessed but nevertheless there is

a transcript, copy of the transcript will be furnished to

the employee and the employee’s representative prompt-

ly upon request.

SECTION D. Hearing Decision

1. If the formal hearing results in assessment of disci-

pline, such decision shall be rendered within fifteen (15)

calendar days from the date the hearing is concluded, and

the employee will be notified in writing of the reason

therefor by certified or registered U.S. mail with addi-

tional copy provided for the employee representative.

NOTE: This rule does not preclude delivery of the deci-

sion at reasonable times by a Carrier representative. Such

delivery at the employee’s home shall be made only when

other means of delivery are not practicable.

a Oe ee ee ee a en er a eG Peregrine ee ak ee ee ON Ee pee, wo aes, De

D-6

2. If the hearing does not result in discipline being

assessed, any charges related thereto entered in the em-

ployee’s personal service record shall be voided.

SECTION E. Compensation for Attending Hearings

1. Witnesses, as referred to in Section B. 1(c), who are

directed by the Carrier to attend a hearing, shall be com-

pensated for all time lost and, in addition, will be reim-

bursed for actual, reasonable and necessary expenses in-

curred for each day of the hearing. Where no time is lost,

they will be paid for actual time attending the hearing,

with a minimum of four (4) hours, to be paid for at the

rate of pay applicable to the last service performed.

2. When an employee involved in a formal hearing is

not assessed discipline, the employee shall be compensated

for all time lost. In addition, the employee will be reim-

bursed for actual, reasonable and necessary expenses in-

curred for each day of the hearing. Where no time is lost,

the employee shall be paid for actual time attending the

hearing with a minimum of four (4) hours for each day

of the hearing, to be paid for at the rate of pay applicable

to the last service performed.

SECTION F. Time Limit on Appeals

1. When discipline has been assessed as a result of a

formal hearing and the decision as rendered by the Car-

rier is not acceptable to the employee, any appeal must

be presented in writing by or on behalf of the employee

involved, to the officer of the Company authorized to

receive same, within thirty (80) days from the date of

notification of the assessment of discipline. Failing to com-

ply with this provision the decision shall be considered

D-7

final, but this shall not be considered as a precedent or

waiver of the contentions of the employees as to other

iscipline cases. The Carrier shall, within thirty (30) days

sidered valid and settled accordingly, but this shall not

be considered as a precedent or waiver of the contentions

of the Carrier as to other discipline cases.

2. The procedure outlined in Paragraph 1 shall govern

in appeals taken to each Succeeding officer (*). Decision

by the highest officer designated to handle discipline mat-

ters shall be final and binding unless within thirty (30)

days after written notice of the decision, said officer is

notified in writing that the decision is not accepted.

Thereafter, if conference is requested by either party,

it will be held within thirty (30) days of date of decision,

otherwise conference will be considered as having been

waived by mutual consent. Al] appeals involved in a deci-

sion of the highest officer shall be barred unless within

ninety (90) days from the date of said officer’s decision

proceedings are instituted by the employee or the em-

ployee’s duly authorized representative before a tribunal

having jurisdiction pursuant to law or agreement of the

matter involved.

NOTE: (*) There shall not be more than two (2) succeed-

ing officers involved in the appeals process. Where there

is only one succeeding officer involved in the appeals proc-

ess, there will be no change in that procedure by reason

3. With respect to appeals involving an employee dis-

issed, suspended or held out of service, the original

D-8

notice of request for reinstatement with pay for time lost

shall be sufficient.

4. If at any point in this appeals procedure or in pro-

ceedings before a tribunal having jurisdiction it is deter-

mined that the employee should not have been disciplined,

any charges related thereto entered in the employee’s per-

sonal service record shall be voided and, if required to

lose time or if held out of service (suspended or dis-

missed), the employee shall be reinstated with pay for all

time lost and with seniority and other rights unimpaired.

5. If discipline assessed is by suspension, time lost by

an employee when held out of service shall be deducted

from the assessed period of suspension.

SECTION G. Effect of Time Limits

1. The time limits set forth in this Agreement will

govern the discipline procedure to the exclusion of any

other rule, practice or agreement to the contrary and such

time limits may be extended by mutual agreement in

writing.

SECTION H.

1. This agreement will remain in full force and effect

until April 30, 1985, and thereafter unless written notice

is served by any signatory party hereto no later than

March 31, 1985, to cancel the Agreement effective April

30, 1985. If the Agreement is not cancelled as herein pro-

vided, it will remain in full force and effect until changed

or modified in accordance with the provisions of the Rail-

way Labor Act, as amended.

D-9

Signed at St. Louis, Missouri, this 11th day of April,

1984.

FOR THE EMPLOYEES: FOR THE NORFOLK

& WESTERN RAILWAY

COMPANY:

R. C. Steel, Jr.

/s/ By /s/

General Chairman Regional Director

UTU, C,T,&E Labor Relations