Appendix — Askew v. Union Pacific Railroad

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

Cause No. 98-CV-191-WDS

JAMES ASKEW,

Plaintiff,

Vv.

UNION PACIFIC RAILROAD CoO.,

RAIL TERMINAL SERVICES, and

TEAMSTERS LOCAL 600,

affiliated with the International Brotherhood of

Teamsters, Chauffeurs, Warehousemen & Helpers of

America, AFL-CIO and INTERNATIONAL

BROTHERHOOD OF TEAMSTERS,

Defendants.

JUDGMENT IN A CIVIL CASE

DECISION BY COURT. This matter came before the

Court on Rail Terminal Services and Teamsters Local

600’s separate motions for summary judgment pursu-

ant to Fed. R. Civ. P. 56.

IT IS ORDERED AND ADJUDGED that pursuant to

the Order of this Court dated November 1, 1999, judg-

ment is entered in favor of defendants RAIL TERMI-

NAL SERVICES and TEAMSTERS LOCAL 600, and

against the plaintiff, JAMES ASKEW.

IT IS FURTHER ORDERED AND ADJUDGED that

pursuant to the Order of this Court dated October 14,

1999, judgment is entered in favor of the defendant,

UNION PACIFIC RAILROAD CO., and against the

plaintiff, JAMES ASKEW.

ee ous

IT IS FURTHER ORDERED AND ADJUDGED that

pursuant to the stipulation of dismissal filed September

13, 1999, and the order granting same filed October 14,

1999, all claims the plaintiff, JAMES ASKEW, has

against INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, AFL-CIO, are dismissed with prejudice,

each party to bear its own attorneys’ fees and costs.

DATED this 1st day of November, 1999.

NORBERT G. JAWORSKI,

CLERK

BY: /s/ Sandy Pannier

Deputy Clerk

Filed November 1, 1999

Clerk, U.S. District Court

Southern District of Illinois

East St. Louis Office

a

a on

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF ILLINOIS

CAUSE NO. 98-CV-191-WDS

JAMES ASKEW,

Plaintiff,

vV.

RAIL TERMINAL SERVICES and

TEAMSTERS LOCAL 600, affiliated with the

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen & Helpers of America, AFL-CIO,

Defendants.

Filed November 1, 1999

CLERK, U.S. DISTRICT COURT SOUTHERN DIS-

TRICT OF ILLINOIS EAST ST. LOUIS OFFICE

MEMORANDUM & ORDER

STIEHL, District Judge:

Before the Court are defendants Rail Terminal Ser-

vices’ (“RTS”) and Teamsters Local 600’s separate mo-

tions for summary judgment pursuant to Fed. R. Civ. P.

56.

BACKGROUND

Plaintiff filed a two-count amended complaint against

Rail Terminal Services (“RTS”), Union Pacific Railroad

Company (“UPRR’), International Brotherhood of Team-

sters (the “Teamsters”), and Teamsters Local 600 (“Lo-

cal 600”), alleging that his July 1997 discharge for

sexual harassment was unlawful. Specifically, Count I

See

ene em

alleges what is referred to as a “hybrid § 301/DFR”

claim, specifically, that: (1) RTS and UPRR breached a

collective bargaining agreement in violation of § 301 of

the Labor Relations Management Act, 29 U.S.C. § 185,

when plaintiff was discharged; and (2) Local 600 and the

Teamsters breached their duty of fair representation

(“DFR”) under § 301 during and after RTS’s investiga-

tion of the sexual harassment charges brought against

plaintiff. Count II alleges that RTS and UPRR dis-

charged plaintiff in retaliation for filing a charge of

disability discrimination with the Equal Employment

Opportunity Commission (“EEOC”) in September 1993.

The Court previously granted summary Judgment for

UPRR, and dismissed the Teamsters with prejudice on

Stipulation of the parties, thereby leaving RTS and

Local 600 as the sole defendants in this lawsuit.

Defendants argue that summary judgment is appro-

priate on plaintiffs hybrid § 301/DFR claim because: (1)

plaintiff did not file his claim within the relevant six-

month statute of limitations; and (2) plaintiff cannot

demonstrate that RTS breached the collective bargain-

ing agreement and that Local 600 simultaneously

breached its duty of fair representation. RTS argues

that summary judgment is appropriate on the retalia-

tory discharge claim because plaintiff cannot prove a

prima facie case of retaliatory discharge, and even if he

can, plaintiff cannot demonstrate that the articulated

reason for his discharge was a pretext for retaliatory

discharge.

FACTS

RTS was created on February 28, 1997, when UPRR

sold its wholly owned subsidiary, United Pacific

Motorfreight (“UPMF”), to RTS. Plaintiff worked for

ae yee

UPMF as a truck driver prior to February 28, 1997, and

after the stock sale, plaintiff worked for RTS as a

“spotter.” Plaintiff was covered by a collective bargain-

ing agreement titled the National Master Freight Agree-

ment and the Central States Area Local Cartage Supple-

ment Agreement (hereafter, the “CBA”), initially ex-

ecuted between UPMF and Local 600, and subsequently

adopted by RTS. The CBA establishes a grievance

procedure whereby grievances are heard and decided by

joint employer-union grievance panels or committees.

(See CBA, Article 45). If a majority decision is reached

in front of a local six-member panel, that decision is final

and binding. (Jd.). If the panel deadlocks, the grievance

may be appealed to a joint state committee. (Id.). If the

joint state committee renders a decision, that decision is

final and binding. (Jd. ). If the committee deadlocks, the

grievance may once again be appealed to a final joint

area committee, which will render a final and binding

decision. (Id.).

The events leading to plaintiffs discharge are as

follows. During the week of July 14, 1997, plaintiff was

filling in as a “trailer-inspector.” As a trailer-inspector,

it was plaintiffs job to inspect all incoming and outgoing

trailers for damage. Genise Talley was an independent

contractor who had contracted with UPRR to transport

trailers. Each time Talley entered the Dupo facility

during the week of July 14, she was required- to have

her loads inspected by plaintiff. On July 18, 1997, Talley

complained to Brad Chilton, RTS’s Terminal Manager

in Dupo, that plaintiff had subjected her to sexually

offensive and unwelcome remarks and gestures during

the preceding week. Specifically, she complained that,

inter alia, petitioner repeatedly said things to her, in the

presence of others, like “you’re my woman, you’re com-

=

ing home with me tonight;” “when you [her husband] are

not around, Genise takes care of me, she rubs on me and

massages me;” and “when are you getting off so we can

go home?” Talley also told Chilton that petitioner had

put his hands on her waist. The harassing incident that

finally caused her to complain occurred on July 17,

1997. Talley reported that on that day, petitioner, in the

presence of others, including her husband, said, “Do you

know how to play TV repairman?” He then rotated his

hands in front of Talley’s breasts and said, “You tune the

knobs.” Chilton asked Talley for a written statement

and advised her that he would investigate the matter.

Chilton then met with plaintiff and his union stew-

ard, Don Green, to inform plaintiff that sexual harass-

ment allegations had been levied against him. Plaintiff

admitted that he knew what sexual harassment was,

and that it is against the law. While there was some

dispute concerning the substance of the incidents, plain-

tiff did not deny their occurrence, and maintained that

the comments were jokes and the touching was innocu-

ous and nonsexual. Chilton concluded the meeting by

informing plaintiff that RTS was taking Talley’s allega-

tions very seriously, and that plaintiff would be notified

of the company’s position pending further investigation.

Chilton contacted Mike List, RTS’s Vice-President and

General Manager, and summarized his conversations

with Talley and plaintiff. List ordered Chilton to sus-

pend plaintiff pending investigation, and, in the pres-

ence of Don Green, telephoned plaintiff at home and

informed him of the suspension. RTS also sent to plain-

omit,

tiff a letter dated July 18, 1997 regarding his suspen-

sion.!

During the following week, RTS continued its inves-

tigation of the sexual harassment allegations. Chilton

concluded his investigation, and sent four witness state-

ments, Talley’s own written statement, and his own

notes summarizing the investigation to List, who, after

reviewing these documents, decided to discharge plain-

tiff. An employee is subject to discharge for “just cause”

under the CBA.’ List determined that just cause was

present to discharge plaintiff because: (1) sexual ha-

‘The letter stated: “Allegations have been brought against you in

regards to your behavior from July 14 to July 18 while performing

the job duties as gate inspector. Due to the severity of these

allegations, under Article 46 of the National Master Freight

Agreement, you are hereby suspended effective immediately,

pending outcome of investigation.”

* Article 46 of the CBA provides in relevant part:

Subject to the provisions of Article 8 of the Master Freight Agree-

ment, the Employer shall not discharge nor suspend any employee

without just cause, but in respect to discharge or suspension shall

give at least one (1) warning notice of the complaint against such

employee to the employee, in writing, and a copy of the same to the

Local Union and job steward affected .... Prior warning notice is not

required if the cause of discharge is: drug intoxication . . . ; the

possession of controlled substances and/or drugs either while on

duty or on company property; recklessness resulting in serious

accident while on duty; carrying of unauthorized passengers;

failure to report any accident which the employee is aware of-,

failure to meet the minimum requirements for safe driving ... ; or

unprovoked physical assault on a company supervisor while on

duty or on company property.

Except in cases involving “cardinal” infractions under this Supple-

mental Agreement, an employee to be discharged or suspended

shall be allowed to remain on the job until the discharge or

suspension is sustained under the grievance procedure.

2 a

rassment is against the law and List believed plaintiffs

conduct constituted sexual harassment; (2) sexual ha-

rassment is against company policy and List felt that

plaintiff's conduct violated that policy; and (3) List felt

that plaintiffs conduct may have jeopardized RTS’s

contract with UPRR absent swift and decisive action.

List discharged plaintiff on July 31, 1997.

On July 24, 1997, plaintiff filed a grievance with Local

600, protesting his suspension. On July 28, 1997, plain-

tiff filed separate unfair labor practice charges against

RTS and Local 600.* On August 21, 1997, at the first

step of the grievance procedure, plaintiff and Local 600

President John Fischer set forth plaintiffs case in its

entirety before a six-member grievance panel. Local 600

took the position that sexual harassment is not a “car-

dinal sin,” and therefore plaintiff should not have been

suspended or discharged without a prior warning no-

tice, and that RTS was required to keep plaintiff on his

job until the matter was resolved. Local 600 also intro-

duced evidence to suggest that the conduct did not rise

to the level of sexual harassment. The panel dead-

locked.* Loca] 600 then appealed the grievance, and

once again, a different six-member panel deadlocked.

Local 600 appealed once more, to the third and final step

of the grievance procedure. On September 8 or 9, 1997,

a third six-member panel heard plaintiffs grievance,

* Plaintiffs charge against RTS alleged that RTS had discrimi-

nated against him by suspending him because of his union mem-

bership and/or protected activities. Plaintiffs charge against Lo-

cal 600 alleged that Local 600 had failed to properly represent him

since July 18, 1997.

* After appearing before the first panel, President John Fisher

retired and relinquished the handling of plaintiffs case to the

company’s secretary-treasurer Martin Giorgi.

=e ee

and this time denied the grievance; the panel did,

however, award back pay retroactive to his suspension

date. Plaintiff was represented by Local 600 officials at

every step of the grievance procedure, and was given the

opportunity to present all the evidence that he felt

supported his position. After denial of his grievance,

plaintiff filed the instant lawsuit.

ANALYSIS

Fed. R. Civ. P. 56(c) provides that a district court shall

grant summary judgment “if the pleadings, depositions,

answers to interrogatories, and admissions on file, to-

gether with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the

moving party is entitled to judgment asamatter of law.”

Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,477

U.S. 317,322-23 (1986); Popovits v. Circuit City Stores,

Inc., 185 F.3d 726, 731 (7th Cir. 1999). The moving party

initially bears the burden to demonstrate an absence of

genuine issues of material fact, indicating that judg-

ment should be granted as matter oflaw. See Lindemann

v. Mobil Oil Corp., 141 F.3d 290, 294 (7th Cir. 1999),

citing Celotex, 477 U.S. at 323.

Once a motion for summary judgment has been made

and properly supported, however, the nonmovant has

the burden of setting forth specific facts showing the

——~ existence ofa genuine issue for trial. Id. In determining

whether a genuine issue of material fact exists, the

Court construes all facts in the light most favorable to

the nonmoving party and draws all reasonable and

justifiable inferences in that party’s favor. See Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 255, (1986). How-

ever, “the mere existence of some alleged factual dispute

between the parties” is not sufficient to defeat such a

motion. Jd. at 247.

—hi~—

A. Hybrid § 301/DFR Claim

Defendants argue that summary judgment is appro-

priate on the § 301/DFR claim because: (1) plaintiff did

not file his claim within the relevant six-month statute

of limitations; and (2) plaintiff cannot demonstrate that

RTS breached the CBA and that Local 600 simulta-

neously breached its duty of fair representation.

I . Statute of Limitations

Defendants initially argue that plaintiff did not file

his hybrid claim within the applicable limitation period.

Section 301, which establishes a federal forum for reso-

lution of labor disputes, contains no statute of limita-

tions. The Supreme Court, however, has held that the

six-month statute of limitations set forth in § 10(b) of the

National Labor Relations Act, 29 U.S.C. § 160(b), ap-

plies to hybrid § 301/DFR claims, such as that presented

in Count I of plaintiffs complaint. See Adams v. Budd

Co., 846 F.2d 428,431 (7th Cir. 1988) citing DelCostelto

v. Teamsters, 462 U.S. 151, 154 (1983).

The parties do not dispute the applicability of the six-

month limitation period. Rather, the parties disagree as

to when the limitation period began to run. The Seventh

Circuit has held that the limitation period begins when

a final decision on an employee’s grievance has been

made or when an employee discovers or should have

discovered that no further action would be taken on the

grievance. See Id. at 431. See also Metz v. Tootsie Roll

Indus., Inc. ,715 F.2d 299, 304 (7th Cir. 1983) (limitation

period begins to run when employee discovers or should

have discovered the acts constituting the alleged viola-

tion). Defendants argue that because plaintiff believed

as of July 28, 1997 that the union was not representing

him fairly, the statute of limitations began running on

— A-11—

that date. Thus, the filing of plaintiffs complaint on

March 6, 1998 would be outside the limitation period,

and his action would be time barred. The cases cited by

defendants, however, are distinguishable from the in-

stant case. In Metz, for instance, the union refused to act

on the plaintiffs grievance, and the plaintiff argued that

the union’s refusal to act did not constitute a “final

determination” of her grievance. See Id. at 303. The

court denied her claim as time barred because she knew

or should have known of the union’s inaction at some

point prior to six months preceding the time that plain-

tiff filed her suit. See Id. at 304. The instant case does

not involve a refusal on the part of the union to pursue

the action; rather, the union did represent plaintiff to a

final determination of the grievance. On September 8 or

9, 1997, plaintiffs case reached a final resolution when

a third and final six-member panel denied plaintiffs

grievance. Plaintiff then filed his suit in federal court on

March 6, 1998. Thus, plaintiff brought the present

action within the six-month limitation period.

2. Collective Bargaining Agreement and Duty

of Fair Representation

Defendants next argue that plaintiffs hybrid § 301/

DFR claim fails on the merits because plaintiff cannot

demonstrate that RTS breached the CBA and that Local

600 simultaneously breached its duty of fair representa-

tion. A suit “by an employee against a union for breach

of the duty of fair representation and an action against

an employer under § 301 of the Labor Relations Man-

agement Act for breach of the collective bargaining

agreement are inextricably interdependent.” Metz, 715

F.2d at 301. Consequently, “neither claim is viable if the

other fails.” Crider v. Spectrulite Consortium, Inc., 130

F.3d 1238, 1241 (7th Cir. 1997). Where a collective

— A-12 —

bargaining agreement provides for final and binding

resolution, the employee must establish a breach by the

union before a court will consider evidence against the

employer. See McKelvin v. E.J. Brach Corp., 124 F.3d

864, 869 (7th Cir. 1997); Ooley v. Schwitzer Div., House-

hold Mfg. Inc., 961 F.2d 1293,1297-98 (7th Cir. 1995).

Therefore the Court will first examine plaintiffs claim

that Local 600 breached its duty of fair representation.

. The parties agree that a union enjoys broad discretion

in its role as exclusive bargaining agent for employees,

and therefore, owes the employees a duty of fair repre-

sentation. See Thomas v. United Parcel Serv., Inc., 890

F.2d 909,916 (7th Cir. 1989). A union, “does not, how-

ever, exercise the same degree of discretion in each ofits

functions.” Jd. at 917. In fact, a union exercises less

discretion in the processing of a grievance than, for

example, in the interpretation of a collective bargaining

agreement. Jd. at 919. As plaintiff notes, in assisting an

employee in a grievance proceeding, the union repre-

sentative acts in a capacity similar to that of a lawyer

representing a client in court. Jd. It is unreasonable,

however, “to expect union officials to meet the same

standards expected of an attorney in a court of law.” Id.

at 920. “[C]ertain acts or omissions by a union official

representing a grievant, while actionable if done by an

attorney, would not constitute a breach of the union

duty of fair representation.” Jd. Moreover, “[i]t is not the

court’s role to second-guess tactical decisions made by

employees’ duly appointed bargaining representative.”

Griffin v. Air Line Pilots Assoc., Int’l, 32 F.3d 1079, 1083

(7th Cir. 1994). Thus, in order to prove that Local 600

breached its duty of fair representation, plaintiff must

produce evidence that its conduct toward plaintiff was

“arbitrary, discriminatory, or in bad faith.” Crider, 130

— A-13 —

F.3d at 1243. “In order to successfully defend against a

motion for summary judgment on a duty of fair repre-

sentation claim, the plaintiff must point the court to

record evidence supporting any one or all of these

elements.” Griffin, 32 F.3d at 1083.

The “arbitrary” analysis is an objective, highly defer-

ential test: to be arbitrary, Local 600’s conduct toward

plaintiff must be “so far outside a wide range of reason-

ableness that it is wholly irrational or arbitrary.” Crider,

130 F.3d at 1243, citing Air Line Pilots Ass’n v. ONeill,

499 U.S. 65, 78 (1991). Discrimination and bad faith, on

the other hand, are determined by looking at the subjec-

tive motivation of the union officials. Id.

In his response to defendants’ motions for summary

judgment, plaintiff does not directly label Local 600’s

conduct as arbitrary, discriminatory, or in bad faith.

Rather, plaintiff argues that Local 600 breached its

duty by failing to present the arguments most beneficial

to plaintiffs case and failing to conduct a meaningful

investigation into plaintiffs case. Specifically, plaintiffs

claims can be categorized as follows. He asserts that

Local 600: (1) wrongfully failed to provide plaintiff with

an attorney; (2) failed to present adequate evidence that

plaintiffs behavior did not constitute sexual harass-

ment; and (3) failed to research the law and interview a

sufficient number of witnesses. The Court will examine

these claims in turn.

As a preliminary matter, however, in an apparent

attempt to have his claims considered under a discrimi-

nation or bad faith analysis, plaintiff alleges, without

citing to the record or providing affidavits or other

evidence in support of his allegation, that “acrimonious

relationships” existed between himself and unnamed

— A-14—

union officials, and that this alleged hostility is relevant

to determining Local 600’s motivation in processing his

grievance. Plaintiff nejther identifies the substance of

these “acrimonious relationships” nor introduces evi-

dence to support an inference that any alleged hostility

affected Local 600’s representation of plaintiff. See, e.g.,

Crider, 130 F.3d at 1243-44 (discrimination and bad

faith claims rejected where plaintiff failed to identify

any union conduct to suggest union treated him with

disfavor). On the contrary, Local 600 protested plaintiffs

discharge and pursued the grievance procedure as far as

the CBA would allow. Thus, plaintiffs claims will be

considered under an “arbitrary” analysis.

As to the first of plaintiffs claims, the discretion

accorded to the union includes a right to limit the role of

outside attorneys in a grievance proceeding. See Garcia

v. Zenith Electronics Corp., 58 F.3d 1171, 1179 (7th Cir.

1995). A decision of a union not to allow outside repre-

sentation, standing alone, is insufficient to show that

the union acted arbitrarily. Jd. at 1179-80. Further-

more, plaintiff admits that he does not know if Local 600

consulted outside counsel or not. Thus, plaintiffs bald

assertion that “Local 600 took no action whatsoever to

assist [plaintiff] in this endeavor [to involve an attor-

ney]”, without more, is not sufficient to withstand a

motion for summary judgment.

Plaintiff next makes a number of assertions that in

substance amount to a claim that Local 600 failed to

introduce adequate evidence at the local level that

plaintiffs conduct did not amount to sexual harass-

ment. Plaintiff contends that Local 600 should have

presented the live testimony of Laura Roy, an employee

of RTS, to show that she did not believe plaintiffs

conduct to be offensive. According to the Stipulation of

— A-15 —

Facts, however, Local 600 did introduce witness state-

ments from Roy, and from Nathaniel Rodie, that char-

acterized plaintiff's conduct as “kidding” or “clowning

around.” Local 600 may have made the strategic choice

not to call as a live witness an employee of the opposi-

tion, or alternatively, Local 600 may not have been as

thorough as it could have been; however, plaintiff has

made no showing that the union’s conduct was “so far

outside a wide range of reasonableness that it is wholly

irrational or arbitrary.” Crider, 130 F.3d at 1243. More-

over, failure to present favorable evidence may consti-

tute a breach of duty of fair representation only if

introduction of the evidence would have changed the

outcome of the proceeding. See Garcia, 58 F.3d at 1176-

77. Plaintiff has not alleged facts to show that the

outcome of the proceeding would have been different

had Roy testified live before the panel.

As to plaintiffs allegations of a failure to research the

law and interview witnesses, while Local 600 was re-

quired to perform some minimal investigation in plain-

tiffs case, the thoroughness of investigation depends on

each particular case, and “only an egregious disregard

for union members’ rights constitutes a breach of the

union’s duty.” Id. at 1176. “What is required to be shown

goes considerably beyond the requirements of a mal-

practice suit.” Jd. In the present case, plaintiff fails to

introduce evidence that Local 600 did not research the

law; in fact, plaintiff admits that he does not know if

Local 600 consulted outside counsel. Moreover, Local

600 did interview witnesses. With the exception of

Genise Talley herself, plaintiff fails to identify what

other “potential witnesses” Local 600 should have inter-

viewed; however, the uncontroverted evidence shows

that Talley refused to talk with the union. Plaintiffs

— A-16 —

unsupported allegations cannot withstand summary

judgment.

In this matter, Local 600, inter alia, protested plaintiff's

discharge and commenced the grievance process, suc-

cessfully challenged RTS’s right to proceed under Ar-

ticle 37 of the CBA (a result which plaintiff admits

helped his case), interviewed witnesses, presented wit-

ness statements to the grievance committees stating

that plaintiff's conduct was merely “kidding” and “clown-

ing around,” allowed plaintiff to make a number of

arguments on his own behalf at the local hearing,

advanced the argument that sexual harassment is not

a “cardinal infraction” allowing immediate termina-

tion, and pursued plaintiff's grievance as far as the CBA

would allow. Plaintiff has failed to produce evidence to

support a finding that Local 600’s conduct was arbi-

trary, discriminatory, or in bad faith.

Because plaintiffs duty of fair representation claim

cannot survive summary judgment, plaintiffs claim

that RTS breached the CBA necessarily fails as well. See

Crider, 130 F.3d at 1241; McKelvin, 124 F.3d at 869;

White v. Gen’l Motors Corp., 1 F.3d 593, 595 (7th Cir.

1993).

B. Retaliatory Discharge

RTS argues that summary judgment is appropriate

on Count II, the retaliatory discharge claim, because: (1)

plaintiff cannot prove a prima facie case of retaliatory

discharge, specifically, plaintiff has failed to produce

any evidence that there is a causal link between his

protected activities and his discharge; and (2) even ifhe

can make out a prima facie case, plaintiff cannot dem-

onstrate that the articulated reason for his discharge is

a. eon

a pretext for retaliatory discharge. Plaintiff failed to

respond to RTS’s arguments on the issue of retaliatory

discharge.®

In order to succeed on aclaim of retaliatory discharge,

plaintiff must first establish a prima facie case of retali-

ation. See McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). In order to do so, he must show that: (1) he

was engaged in a statutorily protected expression; (2) he

suffered an adverse action by his employer; and (3) there

is a causal link between the protected expression and ~

the adverse action. See Adusumilli v. City of Chicago,

164 F.3d 353,362 (7th Cir. 1998); Dey v. Colt Constr. &

Dev. Co., 28 F.3d 1446, 1457 (7th Cir. 1994). Once

plaintiff makes this showing, the burden shifts to RTS

to articulate a “legitimate, nondiscriminatory reason”

for the adverse action. See Adusumilli, 164 F.3d at 362.

If RTS is able to articulate such a reason, the burden

shifts back to plaintiff to demonstrate that the proffered

reason is pretextual and that the actual reason was

discriminatory. Id. “Although the burden of production

shifts under this method, the burden of persuasion rests

at all times on the plaintiff.” Jd. (internal quotations

omitted).

The parties do not dispute the fact that plaintiff was

engaged in statutorily protected expression and that

plaintiff suffered an adverse action by RTS. Rather,

RTS claims that plaintiff has failed to produce evidence

from which a reasonable fact-finder could conclude that

there is a causal link between plaintiffs discharge and

* According to Local Rule 7. 1, “[flailure to timely file an answering

brief to a motion may, in the Court’s discretion, be considered an

admission of the merits of the motion.”

— A-18 —

his filing of a charge of disability discrimination with

the EEOC in 1993.° Specifically, RTS argues that Mike

List, Vice-President and General Manager of RTS, was

the sole decision-maker in regard to plaintiffs dis-

charge, and that List was unaware that plaintiff had

filed the EEOC charge. It is true that generally there

“can be no causal link between protected activity and an

adverse employment action if the employer remained

unaware of the protected activity.” See Dey, 28 F.3d at

1458. In the instant case, RTS has introduced uncontro-

verted evidence that List was the sole decision-maker in

plaintiffs case, (List Aff. at {J 1, 33; Chilton Dep. at pp

39, 53), and that List was unaware that plaintiff had

ever filed an EEOC charge.’ (List Aff. at J 28). Although

plaintiff refused to stipulate to the fact that List was the

sole decision-maker regarding his termination, plaintiff

has not presented evidence to the contrary. Moreover, in

his response to RTS’s motion for summary judgment,

plaintiff even states that “ ... in making the decision to

terminate [plaintiff], Mr. List made no investigation ...”

In addition, plaintiff has not introduced evidence or

argument to support an inference that at the time of

plaintiffs termination, List was aware that plaintiff

§ In its motion for summary judgment, RTS further argues that

plaintiff has failed to establish a causal link between his discharge

and his filing of filing workers’ compensation claims in 1995 and

1997, an unfair labor practice charge with the National Labor

Relations Board in 1997, and a complaint with the Occupational

Health and Safety Administration in 1997. Argument on these

issues is unnecessary because although Count I discusses the

filing of these claims, count II alleges retaliatory discharge based

only upon the filing of the 1993 EEOC claim.

7 List also stated that he had no knowledge the plaintiff had ever

filed any workers’ compensation claims, unfair labor practice

charges, or OSHA complaints. (List Aff. at J 28).

— A-19 —

had filed an EEOC charge, or any other claims. The

Court concludes that there is no issue of material fact as

to whether List was the sole decision-maker in plaintiffs

case and whether List was unaware of plaintiffs alleged

protected activities.

RTS further argues that plaintiffs discharge did not

occur soon enough after the filing of the EEOC charge to

show a causal link. A plaintiff may establish a causal

link by introducing evidence that “the discharge took

place on the heels of protected activity.” See Adusumilli,

164 F.3d at 363 (internal quotations omitted). In the

present case, plaintiffs was terminated in July 1997,

almost four years after he filed an EEOC charge. It is

difficult to see how his termination could be termed “on

the heels” of his filing the charge. See, e.g., Johnson v.

Zema Sys. Corp., 170 F.3d 734, 746 (7th Cir. 1999)

(absent other evidence to show plaintiff was fired for

exercising a protected right, gap of three years between

exercise of right and termination is insufficient to show

causal link). ,

For the foregoing reasons, plaintiffhas failed to present

evidence to demonstrate a genuine issue of material fact

regarding the alleged causal link between the protected

activities in which plaintiff engaged and plaintiffs ter-

mination. It is thus unnecessary to address the alterna-

tive grounds for RTS’s motion for summary judgment as

it relates to plaintiffs retaliatory discharge claim.

— A-20 —

CONCLUSION

Accordingly, the Court GRANTS defendants’ mo-

tions for summary judgment, and judgment is entered

in favor of defendants Rail Terminal Services and Team-

sters Local 600, and against plaintiff James Askew. The

Clerk of the Court is directed to enter judgment accord-

ingly.

IT IS SO ORDERED.

DATED: November 1, 1999

/s/ William Stiehl

DISTRICT JUDGE

ae Se ee ee oy eye ee

— A-21—

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

JUDGMENT- WITHOUT ORAL ARGUMENT

Date: December 6, 2000

BEFORE: Honorable RICHARD A. POSNER,

Circuit Judge

Honorable FRANK H. EASTERBROOK,

Circuit Judge

Honorable ANN CLAIRE WILLIAMS,

Circuit Judge

Nos. 00-1266 & 00-2177

JAMES J. ASKEW,

Plaintiff - Appellant

Vv.

UNION PACIFIC RAILROAD COMPANY, RAIL

TERMINAL SERVICES, TEAMSTERS LOCAL 600,

et al.,

Defendants - Appellees

Appeals from the United States District Court for the

Southern District of Illinois No. 98 C 191, William D.

Stiehl, Judge

Thejudgment of the District Court is AFFIRMED,

with costs, in accordance with the decision of this

court entered on this date.

(1060-110393)

— A-22 —

UNPUBLISHED ORDER

Not to be cited ‘per Circuit Rule 53

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 5, 2000*

Decided December 6, 2000

Before

Hon. RICHARD A. POSNER, Circuit Judge

Hon. FRANK H. EASTERBROOK, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

Nos. 00-1266, 00-2177

JAMES J. ASKEW,

Plaintiff-Appellant,

UNION PACIFIC RAILROAD CO., et al.,

Defendants-Appellees.

William D. Stiehl, Judge.

Appeal from the United States District Court for the

Southern District of Illinois

Nos. 98-CV-191-WDS, 99-CV-823-WDS

*After an examination of the briefs and the record, we

have concluded that oral argument is unnecessary.

Thus, the appeal is submitted on the briefs and the

record. See Fed. R. App. P. 34(a)(2).

‘a

a ee

ORDER

In March 1998 James Askew filed a hybrid action

under the Labor Management Relations Act, 29 U.S.C.

§ 185, alleging that his employer, Rail Terminal Ser-

vices (RTS), breached its collective bargaining agree-

ment with his union, Teamsters Local 600 (Union), by

firing him for sexual harassment, and that the Union

violated its duty of fair representation. Askew also

alleged that his discharge was in retaliation for filing

complaints with the EEOC, OSHA, and the National

Labor Relations Board (NLRB). Askew then filed a

second suit asserting basically the same claims. The

district court granted summary judgment to the defen-

dants in Askew’s first suit. In a later order, the district

court dismissed Askew’s second suit on res judicata

grounds. Askew appeals and we affirm.

Askew began working for Union Pacific Railroad’s

(UPR) subsidiary, Union Pacific Motor Freight (UPMF),

as a truck driver in 1974. Askew divided his time

between making deliveries in the city, and moving

trailers on the yard asa “spotter.” When RTS purchased

UPMF from UPR in February 1997, Askew became a

full-time spotter. Askew is a member of the Union,

which has a collective bargaining agreement with RTS.

Through his employment as a spotter, Askew would

occasionally come into contact with Genise Talley, an

independent contractor who had contracted with UPR

to drive trailers from the Dupo, Illinois facility where

Askew worked. During the week of July 14, 1997, Askew

temporarily filled in as a trailer inspector for an em-

ployee who was out on leave. As a trailer inspector,

Askew had frequent contact with Talley.

— A-24 —

On July 18, 1997 Talley complained to RTS’s manager

Brad Chilton that Askew had been sexually harassing

her over the previous two years. Specifically, she stated

that on numerous occasions, Askew said to her “you’re

my woman,” “you’re coming home with me tonight,”

“when are you getting off so we can go home,” and

“Genise takes care of me, she rubs and massages me.”

Talley also asserted that Askew once placed his hand 6

to 8 inches from her breasts, turned them in a rotating

manner, and stated “let me show you how I play T.V.

repairman ... see, this is how I tune the knobs.” Further-

more, Talley stated that Askew repeatedly asked to hug

her, placed his hands around her waist, and stated that

he was going to “kick [her husband’s] ass.” Many of these

comments were made in the presence of others, includ-

ing Talley’s husband.

Chilton immediately began an investigation of Talley’s

complaints. Askew admitted to making all but one of the

comments but claimed that they were jokes and that the

touching was not sexual in nature. On July 18, 1997

RTS’s General Manager Mike List, whom Chilton had

apprised of the situation, ordered Chilton to suspend

Askew pending further investigation. In the presence of

a union representative, Chilton telephoned Askew and

told him of his suspension. Chilton also sent Askew a

letter informing him that he was being suspended under

Article 46 of the collective bargaining agreement. Chilton

then continued his investigation by interviewing four

individuals whom Talley had identified as witnesses.

These witnesses corroborated Talley’s story in signed,

written statements. Chilton forwarded these statements

to List, who then terminated Askew on July 3 1, 1997.

List believed that he had “just cause” to fire Askew

under Article 46 because Askew’s sexual harassment

— A-25 —

violated both the law and company policy, and jeopar-

dized RTS’s contract with Talley and UPR. Further-

more, he believed that Askew’s sexual harassment vio-

lated Article 37, which generally prohibits management

and union officials from discriminating on the basis of

gender.

Askew and the Union filed a number of complaints

over his suspension and termination. The challenges

pressed three points. First, they claimed that Article 37

was inapposite because it applied only to management

and union officials, not individual employees. Second,

they asserted that his suspension was improper be-

cause Article 46 authorized an employee to remain on

the job until his discharge is sustained under the griev-

ance procedures, unless the employee committed a “car-

dina!” infraction. Askew and the Union asserted that

sexual harassment was not a cardinal infraction. Fi-

nally, they argued that his discharge was improper

because Article 46 required one written warning before

an employee is fired for just cause, and Askew never

received such a warning. Article 46 exempts certain

infractions from this written notification requirement,

but sexual harassment is not listed as one of those

exceptions.

The Union proceeded to pursue Askew’s grievance

through three levels of hearings before panels composed

of three union representatives and three management

representatives. The first two panels split 3-3 on whether

to uphold Askew’s termination. On September 9, 1997

the third panel voted to uphold Askew’s termination,

but awarded him back pay retroactive to the date when

he was suspended.

— A-26 —

Askew filed suit over his termination in March 1998.

He alleged that the Union violated its duty of fair

representation by conspiring with RTS to let his termi-

nation stand. Specifically, Askew alleged that he had an

acrimonious relationship with Union officials, and that

the Union failed to adequately investigate his case,

consult with an attorney, determine whether his con-

duct violated the law, or present important evidence.

Askew next asserted that RTS violated the collective

bargaining agreement by not allowing him to work

while his grievance was pending, and by firing him

without a warning. Askew then claimed that RTS actu-

ally fired him in retaliation for filing complaints with

the EEOC, OSHA, and the NLRB. Askew also named as

defendants the International Brotherhood of Team-

sters (IBT) and UPR. Soon after filing his complaint pro

se, Askew obtained counsel.

While summary judgment was pending in the first

case, Askew filed a second pro se complaint reiterating

his allegations against RTS and the Union. The only

new information in this complaint was Askew’s allega-

tion that List’s deposition testimony shows that List

made false statements to the grievance committees.

After the parties agreed to dismiss all charges against

the IBT because it was not a proper party to the case, the

district court decided the first case in November 1999 by

granting summary judgment to the defendants. The

court found that there was no evidence that UPR was

Askew’s employer after RTS’s purchase of UPMF in

February 1997. Because UPR was not Askew’s em-

ployer at the time of his discharge, it could not be held

liable for any of the activity surrounding, that dis-

charge. The district court granted summary judgment

on the hybrid breach of collective bargaining agree-

— A-27 —

ment/duty of fair representation claim because Askew

had failed to demonstrate a triable issue over whether

the Union violated its duty of fair representation. Fi-

nally, the district court rejected Askew’s retaliation

claim because there was no evidence that List, who

made the decision to terminate Askew, knew about the

complaints filed by Askew. In January 2000 the district

court denied Askew’s pro se motion under Rule 59(e) to

set aside or amend the judgment. In April 2000 the

district court dismissed Askew’s second case on res

judicata grounds. We have consolidated Askew’s timely

appeals in both cases.

Askew’s appellate briefs, while difficult to decipher,

appear merely to repeat his arguments before the dis-

trict court that he was fired by RTS unfairly and in

retaliation for protected activity and that the Union

failed to fairly represent him in challenging his termi-

nation. First, we agree with the district court that

Askew failed to establish a triable issue in his hybrid

breach of the collective bargaining agreement/duty of

fair representation claim. A claim that an employer

breached a collective bargaining agreement will not

succeed unless the employee can also demonstrate that

the union violated its duty of fair representation. See

Filippo v. Northern Ind. Public Serv. Corp., 141 F.3d

744, 748 (7th Cir. 1998); White v. General Motors Corp.,

1 F.3d 593, 595 (7th Cir. 1993). In order to establish that

the Union violated its duty of fair representation, Askew

was required to show that the Union’s actions in repre-

senting him were arbitrary, discriminatory, or in bad

faith. See McKelvin v. E.J. Brach Corp., 124 F. 3d 864,

867 (7th Cir. 1997).

The district court was correct that Askew did not

establish that the Union either acted in bad faith or

— A-28 —

discriminated against him. Askew’s allegations of bad

faith and discrimination relied on his claim that he had

an acrimonious relation with Union officials. Askew,

however, did not identify any individuals with whom he

had a bad relationship, nor did he cite to any evidence in

support of this allegation. See Crider v. Specturlite

Consortium, Inc., 130 F.3d 1238, 1244 (7th Cir. 1997).

As for his claim that the Union’s representation of

him was arbitrary, Askew was required to demonstrate

that the Union’s actions were “so far outside a ‘wide

range of reasonableness as to be irrational.” See Filippo,

141 F.3d at 749. He did not do so. Askew criticized the

Union for not having an attorney present at his griev-

ance hearings, for not determining if his actions were

illegal, for not having witnesses testify at his hearings,

and for not fully investigating and presenting his case.

The failure to provide a lawyer, however, does not

violate the duty of fair representation. See, e.g., Garcia

v. Zenith Electronics Corp., 58 F.3d 1171, 1180 (7th Cir.

1995) (union may exclude independently retained attor-

ney from grievance procedures;- Baxter v. United

Paperworkers Int'l Union, Local 7370, 140 F.3d 745, 747

(8th Cir. 1998) (same); Castelli v. Douglas Aircraft Co.,

752 F.2d 1480, 1483 (9th Cir. 1985) (holding meritless

plaintiffs argument that he was entitled to counsel at

arbitration hearing). As for the claim that the Union did

not determine whether Askew’s actions were illegal, the

Union in fact attempted to downplay the seriousness of

the alleged harassment by presenting statements of two

witnesses who stated that they believed Askew was

merely joking around with Talley. Finally, Askew’s

claim that the Union did not fully investigate or present

his case is belled by the fact that the Union interviewed

a number of witnesses, met with RTS officials when

— A-29 —

Askew was first suspended, and raised his arguments

about suspension and termination before three differ-

ent hearing panels. See, e.g., Garcia, 58 F.3d at 1177-80.

Furthermore, Askew acknowledged at each hearing

that he was satisfied with his Union’s representation

and he actually was awarded back pay because the final

grievance panel found that he improperly had not been

allowed to work while awaiting a decision on his griev-

ance. See, e.g., Souter v. International Union, United

Auto., Aerospace & Agric. Implement Workers of America,

993 F.2d 595, 598 (7th Cir. 1993).

We agree with the district court that Askew also did

not establish a prima facie case for retaliatory dis-

charge. To make out a prima facie case, Askew had to

show that he engaged in protected activity, that he

suffered an adverse employment action, and that there

was a causal link between the protected activity and the

adverse action. See Adusumilli v. City of Chicago, 164

F.3d 353, 362 (7th Cir. 1998). Askew engaged in pro-

tected activity because he filed a complaint with the

EEOC in 1993 alleging violations of the Americans with

Disabilities Act, filed workers’ compensation claims in

March 1995 and June 1997, and filed a complaint with

OSHA in June 1997 over workplace conditions. Askew,

however, did not show that his termination was caus-

ally linked to these complaints because he offered no

evidence that the decision maker in his termination,

List, even knew that Askew had filed these complaints.

See Maarouf v. Walker Mfg. Co., 210 F.3d 750, 755-56

(7th Cir. 2000); Dey v. Colt Constr. & Dev. Co., 28 F.3d

1446, 1458 (7th Cir. 1994). Askew never challenged

List’s affidavit testimony denying knowledge of Askew’s

compiaints and in fact Askew admitted at his deposition

that he had no reason to believe that List knew about

these complaints.

— A-30 —

Askew also argues on appeal that summary judgment

was improper as to UPR because UPR was his employer

by virtue of the fact that UPR controlled RTS’s opera-

tions and was therefore also liable for his improper and

retaliatory discharge. This argument, however, is fore-

closed because Askew entered into a stipulation before

the district court in which he acknowledged that he was

“suing UPR only because he believes (incorrectly) that

RTS was and is a wholly owned subsidiary of Defendant

Union Pacific, and Defendant Union Pacific controls all

operations and acts of Defendant RTS’... and that RTS

and UPR are ‘one and the same.” Furthermore, UPR

presented uncontroverted testimony that it never con-

trolled any of RTS’s operations or had any corporate

affiliation with. Finally, Askew failed to respond to

UPR’s motion for summary judgment and therefore he

has conceded that UPR’s version of the facts are true.

See Day v. Northern Ind. Pub. Serv. Corp., 164 F.3d 382,

383-84 (7th Cir. 1999); Flynn v. Sandahl, 58 F.3d 283,

288 (7th Cir. 1995). These facts establish that UPR had

no control over RTS’s actions and was therefore not

liable for Askew’s discharge.

Askew also challenges the dismissal of all claims

against the IBT. Before the district court, however,

Askew stipulated that IBT had never been a signatory

to the collective bargaining agreement at issue, and

soon thereafter he agreed to dismiss all claims against

IBT with prejudice under Federal Rule of Civil Proce-

dure 41(a)(1)(ii). Askew now asserts that these actions

were taken by his attorney without Askew’s permission.

But Askew is responsible for the actions of his counsel,

and so even if his unsupported allegation is true it would

at most justify a malpractice action by Askew against

counsel. See Bell v. Eastman Kodak Co., 214 F.3d 798,

801-02 (7th th Cir. 2000).

— A-31—

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF ILLINOIS

JAMES ASKEW,

Plaintiff,

V.

UNION PACIFIC RAILROAD CO.

Serve: C.T. Corporation

208 South LaSalle

Chicago, IL 60604 and

RAIL TERMINAL SERVICES

Highway 3 and East Carondelet

P.O. Box 40

Dupo, Illinois, and

TEAMSTERS LOCAL 600

Affiliated with the International Brotherhood of

Teamsters, Chauffeurs, Warehousemen

& Helper of America AFL-CIO

9401 Riverview Ave., St. Louis, MO 63137 and

INTERNATIONAL BROTHERHOOD

OF TEAMSTERS

25 Louisiana Ave., N.W.

Washington, D.C. 2001

Defendants.

Cause No. 98-191-WDS

JURY TRIAL DEMANDED

Filed March 6, 1998

oi uli nin

COMPLAINT

Comes now the plaintiff and for his cause of action

against the defendants states as follows:

Jurisdiction

1. This is an action brought under the provisions of the

National Labor Relations Act, 1947, Section 301, and 29

U.S.C. § 185 and this Court has jurisdiction pursuant to

the provisions of 28 U.S.C. 1331, 1332, 1343 and 1367.

This Court also has Jurisdiction under the provisions of

Title VII of the Civil Rights Act, 42 U.S.C. 2000e et seq.,

the Civil Rights Act of 1991, the Occupational Safety &

Health Act., 29 U.S.C. §651 et seq.

Parties

2. Plaintiff, James Askew, is a citizen of the United

States, a resident of the State of Missouri and a former

employee of defendant railroad and a member of defen-

dant Union.

3. Defendant Union Pacific Railroad (Railroad) is a

corporation authorized to do business in the State of

Illinois and maintains a railroad in said state.

4. Defendant Rail Terminal Services (Terminal) oper-

ates a terminal service in the state of Illinois and is an

agent of defendant Railroad and at all times mentioned

herein was acting within the scope of its agency.

5. Defendant Teamsters Union Local 600 is affiliated

with the International Brotherhood of Teamsters, AFL-

CIO, and is the collective bargaining agent for certain

employees of the defendant Terminal including the

plaintiff and defendant International Brotherhood of

Teamsters (International) is charged with enforcing the

— A-33 —

terms of the National Master Freight Agreement which

governs the contractual employment relationship of

plaintiff and defendants.

6. Plaintiff reported certain actions of the Terminal to

O.S.H.A. for failing to report various accidents and

O.S.H.A. fined defendant Terminal $800 for failure to

report said accidents.

7. On or about the 31st day of March, 1993, plaintiff

was not returned to work by defendant after his heart

attack and plaintiff filed an EEOC complaint and there-

after a settlement was reached resulting among other

things in plaintiff's return to work.

8. On July 18, 1997 plaintiff was suspended subject to

discharge from his employment with the Terminal for

alleged misconduct.

9. On July 23, 1997 plaintiff filed a grievance alleging

among other things that his suspension was in violation

of the provisions of the Master Freight Agreement.

10. On July 31, 1997 defendant Terminal discharged

the plaintiff.

11. Plaintiffs grievance of July 23, 1997, then be-

came a discharge grievance and plaintiff alleged that

his discharge was in violation of the provisions of the

Master Freight Agreement and in retaliation for his

prior protected activities.

12. Plaintiffs prior protected activity involved (a)

reporting accident situations to OSHA, (b) filing an

EEOC complaint based on disability under the Ameri-

can Disabilities Act, (c) filing a charge with the National

Labor Relations Board opposing certain acts of the

leadership of the Union, and (d) filing a workers com-

pensation claim.

— A-34 —

13. Defendant Union failed to fairly and adequately

represent the plaintiff, and the actions of the Union in

representing him in the discharge grievance were arbi-

trary, discriminatory and deliberately done with dis-

honesty, in bad faith, and designed to punish plaintiff

for his prior protected activity, said actions consisting of

one or more of the following acts:

a) The Union Steward testified falsely against plain-

tiff and the Terminal was reported to have paid said

Union steward for his lost time;

b) The Union failed to interview plaintiffs wit-

nesses;

c) The Union failed to take any action to enforce

complaint with the National Maters Freight Agree-

ment;

d) The Union allowed issues to be brought into the

grievance hearing which were not covered in the Na-

tional Master Freight Agreement;

14. Plaintiff has exhausted all administrative rem-

edies reasonably available to him including internal

union appeal procedures in that any such internal

appeals would be useless in view of the deliberate and

intentional actions of the defendant Union.

15. That the actions of the defendants has caused

plaintiff great emotional distress, loss of pay, seniority

and benefits.

16. That the actions of the defendants were deliberate

and intentional and done with malice or with reckless

disregard to the rights of plaintiff and plaintiff is en-

titled to compensatory and punitive damages.

— A-35 —

WHEREFORE, Plaintiff prays for trial by jury and for

the following relief:

a) Restoration to his job with full back pay, full

benefits and restoration of full seniority rights.

b) Compensatory damages for emotional distress,

damage to his reputation and his good name in the sum

of $300,000.

c) Punitive damages in the sum of One Million

Dollars ($1,000,000,);

d) Reasonable attorney fees, his cost incurred herein

including the cost of expert witnesses and for such other

and further relief as may be proper in the circum-

stances.

/s/ James Askew

James Askew - Pro Se

P.O. Box 3436

St. Louis, MO 63143-0436

_—s

APPENDIX D

Department of Employment Security

4519 W. Main St. P.O. Box 23650

Belleville, IL 62223

487-44-5471

Date: 08-07-97

James J. Askew

P.O. Box 3436

St. Louis, MO 63143

RAIL TERMINAL SERVICES LLC

The following determination has been made in connec-

tion with your claim for unemployment insurance ben-

efits:

The claimant was discharged from RAIL TERMINAL

SERVICES because of AN ALLEGATION OF SEXUAL

HARASSMENT.

The term misconduct means the deliberate and willful

violation of a reasonable rule or policy of the employer

if the violation has harmed the employer or other em-

ployees or has been repeated by the individual despite

a warning or other explicit instruction from the em-

ployer. In this case, the claimant’s action which re-

sulted in his discharge HAS BEEN DENIED BY THE

CLAIMANT TO BE TRUE AND THE BURDEN OF

PROOF IS ON THE EMPLOYER.

Therefore, this Determination finds the claimant eli-

gible for benefits, with respect to this issue only, for each

week during the period from 07-20-97 through 08-02-97

— A-37 —

and he will be determined eligible for each week there-

after as long as he meets the eligibility requirements of

the Illinois Unemployment Insurance Act.

Benefits payable by check are being ordered for each

week of unemployment for which you are eligible. If you

do not receive payment within three weeks from the

date of this notice, please notify the office.

SEE THE REVERSE SIDE FOR INFORMATION RE-

GARDING APPEAL RIGHTS.

VEASE ALL REVERSO PARA UNA TRADUCCION

EN ESPANOL DE SUS DERECHOS A APELAR.

William J. Koch - 185

E.S. Service Representative

618-277-5678

ARTICLE 46. DISCHARGE OR SUSPENSION

Subject to the provisions of Article 8 of the Master

Freight Agreement, the Employer shall not discharge

nor suspend any employee without just cause, but in

respect to discharge or suspension shall give at least one

(1) warning notice of the complaint against such em-

ployee to the employee, in writing, and a copy of the

same to the Local Union and job steward affected,

except that no warning notice need be given to an

employee before he is discharged if the cause of such

discharge is proven dishonesty or drunkenness, which

may be verified by a sobriety test. Refusal to take a

sobriety test shall establish a presumption of drunken-

ness. Extension of a coffee break or lunch period for a

minimal amount of time shall not be considered dishon-

esty per se, so as not to require at least one (1) warning

notice prior to discharge or suspension. Prior warning

— A-38 —

notice is not required if the cause of discharge is: drug

intoxication as provided in Article 35, Section 3, of the

Master Freight Agreement; the possession of controlled

substances and/or drugs either while on duty or on

company property; recklessness resulting in serious

accident while on duty; carrying of unauthorized pas-

sengers; failure to report any accident which the em-

ployee is aware of; failure to meet the minimum require-

ments for safe driving under Paragraph 391.25 of the

Motor Carriers Safety Regulations issued by the De-

partment of Transportation; or unprovoked physical

assault on a company supervisor while on duty or on

company property. Warning letters must be postmarked

no later than ten (10) days following the Employer’s

knowledge of the violation, except in those cases where

a letter of investigation was issued within such ten (10)

day period. Letters of investigation for accidents shall

be valid for forty (40) calendar days from the date of the

accident.

Except in cases involving “cardinal” infractions under

this Supplemental Agreement, an employee to be dis-

charged or suspended shall be allowed to remain on the

job until the discharge or suspension is sustained under

the grievance procedure.

The warning notice as herein provided shall not remain

in effect for a period of more than nine (9) months from

the date of said warning notice. The nine (9) month time

period shall apply uniformly throughout the Supple-

mental Area. Habitual absenteeism or tardiness shall

subject an employee to disciplinary action in accordance

with the procedure outlined herein.

Discharge must be by proper written notice to the

employee and the Union affected. Any employee may

— A-39 —

request an investigation as to his discharge or suspen-

sion. Should an investigation prove that an injustice has

been done an employee, he shall be reinstated. The

Committees established by the Supplemental

ment and the Master Agreement shall have the author-

ity to order full, partial or no compensation for time lost,

Appeal from discharge, suspension or warning notice

must be taken within ten (10) days by written notice,

and a decision reached within thirty (30) days from the

date of discharge, suspension or warning notice. If the

employee involved is not within the home terminal area

when the action of discharge, suspension or warning

notice is taken, the ten (10) day period will start from the

date of his return to the home terminal. If no decision

has been rendered on the appeal within thirty (30) days,

the case shall then be taken up as provided for in Article

45, Section 1, of this Agreement.

Any employee discharged away from his home terminal

shall be provided the fastest available transportation to

his home terminal at the Employer’s expense.

Uniform rules and regulation’s with respect to disciplin-

ary action may be drafted for each state, but must be

approved by the Joint State Committee for such state

and by the Joint Area Committee. Such approved uni-

form rules and regulations shall prevail in the applica-

tion and interpretation of this Article.

— A-40 —

APPENDIX E

RAIL TERMINAL SERVICES

P.O. Box 40

DUPO, IL 62239

618-286-0479 FAX: 618-286-0412

DISCHARGE LETTER

Certified Mail Return Receipt Requested

No. P 277 518 277

Mr. James J. Askew

P.O. Box 3436

St. Louis MO 63143

Dear Mr. Askew:

We have concluded our investigation concerning the

incidents of your Sexual Harassment of Mrs. Genise

Talley, a female driver, during the week of July 14, 1997.

In accordance with Article 46 and Article 37 of the

National Master Freight Agreement and Local Cartage

Supplemental Agreement this discharge is for Just

Cause and Discriminatory Acts Prohibited by Law.

All monies due you will be sent to the address of record

noted above, except vacation pay which is being with-

held in accordance with Article 23 of the National

Master Freight Agreement.

Sincerely,

/s/ Brad Chilton

Brad Chilton

Terminal Manager

ey Yr; penn

cc: Mr. R.M. “Mike”- Vice President & General Man-

ager, RTS

Mr. Danny Moore-Assistant General Manager, RTS

John Fisher, President & Business Agent

Certified Mail Return Receipt Requested No. P27751

8276 Teamsters Local 600 9041

Riverview Dr.

St. Louis MO 63137 '

Donald Green, Job Steward

eR I tr anh ope michioeses ROSTER OA aah t

hey as

2 x -" ne _ PareR Hea eRRRe NCE

POAT wih 1 ON SRT eae PON REN ae a ae OR er eA ee eee Te TS lia

— A-42 —

Statement of Policy

Applicable to the Sale and Distribution

of the Central States Area Contract Guide

The Contract Guide covering the National Master

Freight Agreement and the Central States Supplemen-

tal Agreements is compiled, copyrighted and marketed

by a Guide Committee composed of the Managers of

MCEC of Central States Labor Relations Associations.

The content consists of selected Central States Joint

Area Committee and National Grievance Committee

‘decisions in precedent setting cases and interpretations

applicable to the National Master Freight Agreement

and the Central States Area Local Cartage and Over-

The-Road Supplemental Agreements, augmented with

Bulletins prepared and/or distributed by the Central

Conference of Teamsters, Motor Carrier Employers

Conference - C.S., International Brotherhood of Team-

sters and Trucking Management, Inc.

The “Guide” is available for purchase on a three-year

subscription basis to Carrier Management, Employer

Associations signatory- to the National Master Freight

Agreement and or the Central States Area Over-The-

Road and Local Cartage Supplemental Agreements.

Officers of the International Brotherhood of Teamsters,

Affiliated Conferences, Joint Councils and IBT Local

Unions.

— A-43 —

ARTICLE 46

DISCHARGE OR SUSPENSION

Contract Text: UNIFORM RULES AND REGULA-

TIONS

Reference Note: See Article 43, Section 1 providing for

termination of seniority in case of voluntary quit; Ar-

ticle E of Ohio Rider covering discharge, suspension, or

voluntary quit, in the State; and the Uniform Rules and

Regulations covering grievances as adopted and effec-

tive in such states as Michigan, Nebraska and Indiana.

(See Article 35, Section 3 re: “drug abuse”.)

Comment: The Contract provides in Section I of Article

43 that seniority, and therefore the employment rela-

tionship with a given Carrier, is severed upon a “volun-

tary quit” by the employee. Obviously, when a voluntary

quit occurs, the Contract text has no application and

such former employee has no rights under this Article.

Notwithstanding the simplicity of this fact, JAC is

confronted occasionally with the necessity of determin-

ing whether there has, in fact, been a voluntary quit

upon the part of an employee. The issue is usually raised

by an act of an employee such as walking off the job,

failing to report for work, or neglecting to return to duty

after leave of absence.

Such act by the employee may or may not be intended as

an actual quitting of his employment. The Carrier,

however, may interpret the employee’s act as a quit and

if such assumption upon the part of the Carrier is

contested thereafter by either the employee or Union,

the issue is settled through resort to the grievance

procedure. In some instances the position of the Carrier

has been sustained by JAC. In other cases, however,

a pon

JAC has found the circumstances to be such that the

employee was justified in his act or that the Carrier

should have treated the incident as a disciplinary mat-

ter in conformity to the Contract text.

An employee normally does not have the right to walk

off the job or refuse to pull a run. His remedy is to stay

on the job or perform his duty and to file a grievance.

This responsibility of the employee and business agent

was pointedly stated by the Chairman, Central States

Drivers Council, in a 1955 JAC decision:

“I want you drivers to take sound notice that this

Contract is meant to be lived up to and if you have a

complaint, you reduce it to writing, turning it in to the

business agent, and he will process it accordingly; and

if you have any complaint, you follow ARTICLE 46, and

if you don’t do it, we'll penalize the man that’s respon-

sible in such a way that he won’t forget it the next time

the case comes in here”: Local 710 vs. Riss & Co., C#38,

JAC, Mar. ’55 (Art. 10).

The act of an employee in failing to perform his duty

man result from infinitely variable circumstances such

as misunderstanding of instructions, emergency, or

other causes not justifying complete loss of seniority.

Such possibilities make it imperative that the Carrier

carefully examine its position in all voluntary quit cases

where its position may be challenged. ARTICLE 46

In a number of states such as Michigan and Nebraska

the provisions of the Contract text are in part altered or

modified as a result of uniform rules and regulations

adopted in such States; and in Ohio discipline is in part

governed by Article E of the Ohio Rider. Consequently,

Carriers who operate in such states must have knowl-

edge of and comply with the various rules effective

icles.

therein governing discipline and grievances. Failure to

comply with such uniform rules and regulations in

imposing discipline will result in reinstatement: Local

554 vs. Burlington Truck Lines, C#27, JAC, Dec. ’55.

Adoption of such uniform rules by various states evi-

dences recognition generally given to the principle of

predetermined discipline based upon known and ex-

pected common employee acts of commission or omis-

sion which normally may be feasibly regulated or con-

trolled through establishment of such rules.

The addition of the words “or suspension” to the Con-

tract text (2-1-55) had the effect of placing the two

principal disciplinary actions available to a Carrier

upon the same basis of accurate and adequate prior

warning notice of the charge or complaint against the

employee. The inclusion of these words in the Contract

creates a more stable method of accomplishing suspen-

sion, where it is warranted, and reduces materially the

difficulties formerly experienced in justifying suspen-

sion with resultant loss of earnings to the employee.

The imposition of suspension or discharge can be ef-

fected only after prior warning notice except in the

limited discharge causes specifically enumerated in the

Contract text. This requirement of a prior warning

notice letter has created some difficulty. It is clear that

such warning notice cannot be overlooked or ignored

since failure to provide the notice will result in rein-

statement of the discharged employee. Moreover, a

warning notice may not support a subsequent discharge

when the infraction even with its repetition may be

insufficient to warrant discharge. Not infrequently the

reinstatement of a discharged employee by JAC will

result due to the fact that the warning notice is given

FEE ee ee eT

— A-46 —

with respect to one form of infraction or improper

conduct while the actual discharge is imposed upon a

different infraction or form of misconduct. The warning

notice or letter in order to be adequate and effective in

sustaining a subsequent discharge must have been

issued for a similar or related Contract violation, rule

infraction or type of improper conduct.

In many instances when an employee is ordered rein-

stated by JAC, the latter will direct that the letter or

notice of discharge be treated as a warning notice: Local

710 vs. Burlington Truck Lines, C#12, JAC, Mar. ’55;

Local 710 vs. Consolidated Freight Ways, C#14, JAC,

Mar. ’53; Local 89 vs. Hayes Freight Lines, C#46, JAC,

Mar. ’55. In other situations, though JAC may decree

reinstatement of the employee, the degree of the latter’s

fault is such that JAC also directs the issuing of a

warning notice: Local 135 vs. Hargis Truck Lines, C#32,

JAC, Mar. ’54; Local 662 vs. Briggs Transportation Co.,

C#52, JAC, Dec. ’55. On appropriate occasions JAC may

accompany its order of reinstatement with a verbal

admonition to the employee as in the case of Local 554

vs. Red Ball Transfer Co., C#34, JAC, Dec. ’55 where the

employee was told, “You are not to take the position

when your eight-hour statutory time is up that you still

have the balance up to 15 hours to go out. Any time after

the eight hours that the Company has a load of freight

for you, in line with your place on the board, that freight

goes out.”

Justification for discharge or discipline is the salient

point of the Contract text. What constitutes justification

must obviously be dependent upon the particular facts

and circumstances, and can only be determined on a

case by case basis. Experience seems clearly to indicate

that good reasonable supervision uniformly applied

— A-47 —

within the terms of the Contract, without discrimina-

tion and without heat, will assure the soundness of the

Carrier’s position in disciplinary matters. Conversely,

erratic disciplinary methods with the appearance of

discriminatory application may color all of a Carrier’s

disciplinary action.

Beyond the necessity of justification for imposition of

discipline is the equally important need for ample proof

thereof. When an employee appeals from an imposed

discipline, it is not enough that the Carrier considers the

action taken as justifiable, since “just cause” is a conclu-

sion reached after examining and weighing all the

relevant facts. A Carrier must be prepared to establish

such facts by proof before JAC or other grievance com-

mittees when its action is challenged. Any guessing or

laxity in this connection upon the part of a Carrier

usually accounts for the failure to make its disciplinary

action stick.

Broad remedial authority is exercised by JAC in revers-

ing or modifying disciplinary action imposed by a Car-

rier. The normal rule applied when a discharge is held

to have been improper is that the discharged employee

be reinstated with back pay less monies earned by him

while out of the Carrier’s service. In many cases the

employee ordered reinstated is also at fault in more or

less substantial degree. Recognition of this situation by

JAC is indicated by the nature of its decision. Reinstate-

ment is frequently ordered without back pay, and in at

least one case reinstatement was ordered with payment

of “one-half of the wages lost because of improper dis-

charge”: Local 600 vs. Superior Forwarding Co., C#51,

JAC, Mar.’54. Reinstatement without back pay may be

ordered by JAC and the actual reinstatement delayed

by the Committee for an additional period following the

ee

date of its decision: Local 662 vs. Briggs Transportation

Co., C#52, JAC, Dec. 55. As noted previously reinstate-

ment may be ordered with the qualification that the

discharge notice serve as a warning notice, or with a

direction that the reinstated employee be issued a

warning notice.

Discharge cases make up an unduly large portion of

agendas of State Committees and of the Area Commit-

tee. It is in this area of dispute that much controversy is

experienced. It should be noted as a general proposition

that Joint State Committees made up of Employers and

Union personnel with their better opportunities to re-

solve these disputes on “home ground” should dispose of

more of these disputes. The record appears to indicate a

hazard for Employers existing at JAC when all possible

effort to settle a discharge dispute has not been made

beforehand.

The quarterly meetings of the JAC create a condition

where its decision cannot be secured until after lengthy

delays running in some instances to ninety days. This

condition of unavoidable delay builds up large lost-time

pay claims, continues for those periods of time whatever

injustice exists on either side of the dispute, and places

on JAC the burden of attempting to reach a just decision

in an atmosphere where salient facts are often absent or

possibly have been pushed to the background by the

animosity and bitterness created in the prior attempts

at adjustment of the dispute.

It seems worthy of note that the inherent elements of

Cie Employer-employee relationship, the value placed

on an employee’s seniority, the fringe benefits of consid-

erable value to the employee, the probable future value

of such fringes to the employee, all tend to set up ever-

— A-49 —

increasing resistance to discharge. The Employer must

make certain that his supervision in taking disciplinary

action is founded upon facts and good judgment.

Clause Application: Failure to comply with or prop-

erly apply the provisions of the Contract text in impos-

ing discipline or discharge will result in reinstatement

of the employee by JAC: Local 710 vs. Burlington Truck

Lines, C#12, JAC, Mar.’55: Local 710 vs. Keeshin Motor

Express, C#36, JAC, Mar. ’54.

When circumstances establish a voluntary quit upon

the part of an employee with resultant loss of seniority

in accordance with ARTICLE 43, the Contract text is

inapplicable and the employee has no rights thereun-

der: Local 632 vs. Watson Brothers Transportation

Company, C#40, JAC, Dec. ’52; Local 327 vs. Terminal

Transport, C#29, JAC, Sept. ’53; Local 42. vs. Riss &

Company, C#31, JAC, Mar. ’55.

A warning notice, in order to be effective in sustaining

a subsequent discharge, must have been issued for

misconduct, Contract violation, or rule infraction simi-

lar or related to that on which the discharge action is

taken: Santa Fe Trails Company vs. Local 795, C#32,

JAC, Sept. ’52.

Discipline or discharge imposed for just cause and

arising out of an infraction of rules or regulations will

only be sustained when such rules or regulations have

previously been approved by JAC: Local 200 vs. Hall

Freight Lines, C#38, JAC, Mar. ’54; Local 554 vs.

Burlington Truck Lines, C#27 , JAC, Dec. ’55. (The

citations here are to Company Rules which incorporate

pre-determined disciplinary penalties.)

— Se

Observation reports covering unlawful or faulty opera-

tion or other improper conduct made by Company or

independent agency inspectors are not acceptable as

evidence upon which to sustain discipline, unless such

observation reports are made by such inspectors after

halting the driver and informing him of the nature of the

observation report: Local 388 vs. Rock Island Motor

Transit Company, C#18, JAC, Mar.’55. The vehicle of

the inspector must be clearly marked so that it is

identifiable by the truck driver being flagged down.

When an employee is ordered reinstated by JAC with

compensation for all time or work lost, monies earned by

the employee pending such reinstatement are included

in the computation of the compensation awarded: Local

147 vs. Bos Truck Lines, C#40, JAC, Sept. 53; Local 961

vs. Navajo Freight Lines, C#31, JAC, Dec. ’53; Local 554

vs. Burlington Truck Lines, C#27, JAC, Dec. ’55.

Discharge on grounds of dishonesty sustained for falsi-

fication of employment application: Local 299 vs. Kramer

Brothers Freight Lines, C#73(a), JAC, June ’55; for

turning in false information on breakdowns: Local 299

vs. Ellis Trucking Company, C#39, JAC, Dec. ’55; Local

554 vs. Consolidated Freightways, C#369, JAC, Sept.

86.

Discharge not sustained when employee failed to pull

run on two days alleging “rods out” on tractor, but later

inspection disclosed there were no rods out: Local 710

vs. Lake Motor Freight, C#5, JAC, Mar. ’52.

Discharges sustained by JAC cover a very wide field

including such grounds as tailgating and excessive

speed: Local 89 vs. Ziffrin Truck Lines, C#38, JAC, June

’55; violation of provisions of lease agreement and Com-

pany instructions: Local 721 vs. Arbet Truck Lines, Inc.,

— A-51—

C#42, JAC, Dec. ’54; for recklessness: Local 233 vs. Rock

Island Motor Transit, C#36, JAC, Sept. 53; Local 135

vs. Roadway Express, C#35, JAC, Dec. ’54.

When Employer discharged employee for an accident,

and the employee failed to appeal the discharge within

ten days, which he was physically able to do, JAC denied

the employee’s claim that the ten-day appeal period

begins to run when the injured employee is determined

to be physically fit to return to duty: C#29. Local 710 vs.

Eazor Express, Inc., JAC, Dec. ’57. ARTICLE 46

The carrying or possession of articles prohibited by law

subject employee to discharge: “Mr Chairman, I'd like to

place into the record an interpretation of Article 10 of

both the City and Road Contracts: *

“If any employee carries or permits on their person or

truck any article, the carrying or possession of which is

prohibited by state or federal criminal law, such em-

ployee shall be subject to discharge.” (J. R. Hoffa, JAC,

June 1962, Interpretation of Article 10, 1961-1964).

*Article 46 in subsequent Supplements.

A driver whose license was suspended in a State other

than that ofhis domicile, and not legally prohibited from

driving in the State of his domicile, shall be allowed, in

accordance with his seniority, to pull runs in other

States where his license is valid. If such a driver oper-

ating on a rotating board reaches the top and a load

comes up for an area where his license is not valid, he

remains on the top but waives his right to pull the load

into the area where his license is not valid: Local 200 vs.

Consolidated Freightways, C#176, JAC, Sept. 64.

Where Company discharged employee, following warn-

ing letter for wearing shorts, the discharge was set aside

— A-52 —

and a two-day suspension for violation of Company

Rules was substituted. The substance of the Committee

decision was that a Company has the right to establish

and enforce reasonable work rules regarding minimum

working attire, which may exclude the wearing of shorts:

Local 299 vs. P.I.E., C#3, JAC, Sept. ’69.

Driver would not complete Company form initiated to

control DOT Hours of Service; given warning letter (s);

subsequently suspended for three days. Appeal of sus-

pension denied: Local 41 vs. Consolidated Freightways,

C#142, JAC, June ’72.

SUBJECT: Change in D.O.T. Regulation-Disqualifica-

tion for Conviction of Operating a Motor Vehicle under

the Influence of Alcohol-Modification of Bureau of Mo-

tor Carriers Safety Rules-Section 391.15 BMCS Docket

No. MC 40—Notice 72-22

On November 23, 1972 the Director of the Bureau of

Motor Carrier Safety issued a revision of the Safety

Regulations pertaining to the disqualification of drivers

operating trucks in interstate commerce. In this revised

regulation the Director has dropped completely any

disqualification imposed upon a truck driver who is

convicted of operating his private motor vehicle under

the influence of alcohol. This new regulation will be-

come effective December 25, 1972.

In explaining the reason for issuing this revised regula-

tion the Director cited the fact that the previous regula-

tion had been attacked as unconstitutional in various

federal courts. One federal judge had held the regula-

tion unconstitutional and several other suits were await-

ing trial dates. These suits were commenced by truck

drivers represented by the International Brotherhood

of Teamsters,

— A-53 —

Evidence produced in the St. Paul case showed that

automatic disqualification of a truck driver convicted of

driving his private auto while intoxicated is out of phase

with the current approach toward identification and

treating these drivers, and this evidence was accepted

by the Director as one of the reasons for making the rule

change. This evidence was adduced by Attorney David

Loeffler of the law firm of Goldberg, Previant & Uelmen,

attorneys ARTICLE 46 for Joint Council 39. The testi-

mony of Paul Scholleart, who was a Research Fellow at

the University of Wisconsin in Madison at the time of

the trial, clearly established that there is no legitimate

basis for assuming that a driver who drove his private

car after drinking alcohol would also drive on the job

after drinking alcoholic beverages. Mr. Scholleart is

now the Director of Labor Data, Inc. of Baltimore,

Maryland.

The government also had reports from many places in

the nation indicating that local law enforcement person-

nel, including judges, were reluctant to enter guilty

verdicts against a truck driver charged with operating

his private auto under the influence of liquor because

the effect of a conviction for this off-the-job offense was

the loss of his job. Under the new rules, disqualification

can be imposed upon drivers only if convicted of driving

on the job under the influence of alcohol or drugs.

Disqualification will be for one year for the first offense

and for three years if a subsequent offense is committed

within three years of the first offense.

The licensing of drivers is still a matter of State concern

and a driver must continue to have a valid State license

in order to drive.

This revision is effective on December 25, 1972. How-

ever, this revision applies to all drivers who have been

om

disqualified under S 391.15 prior to this issuance. (Fed-

eral Register, Vol. 37, No. 227 Thursday, November 23,

1972)

The following is copied from the transcript of the Pro-

ceedings and Minutes of the Central States Area Joint

Area Committee in Meeting December 12, 1972:

“'.. communication between the Motor Carriers Employ-

ers Conference and Central States Drivers Council-

request for interpretation on Article 46, Local Cartage

and Over-the-Road . . . The decision:

“As a result of the recently announced modification of

Bureau of Motor Carriers Safety Rules, Section 391. 15

BMCS Docket No. MC 40,

“1. Aqualified driver presently suspended from employ-

ment or presently employed in a non-driving classifica-

tion because of prior application of BMCS Rules, Section

391.15 shall be restored to driver status effective 25

December, 1972 providing said driver is qualified to

drive under BMCS as amended effective 25, December

1972, and is otherwise qualified under the rules and

regulations of all governmental bodies of appropriate

jurisdiction.”

Presumption of drunkenness on basis of Blood Alcohol

Content:

STATES PERCENTAGES OF 1%

Indiana 10

Illinois .10

Iowa 10

Kansas 0.10 or more

Kentucky .10

Michigan 05

—s

Minnesota 10

Missouri 10/100 of 1% or more

Ohio 10

Wisconsin .10 ARTICLE 46

Grievant suspended pending compliance with Motor

Carrier Safety Regulations (certification of traffic viola-

tions for past year). Returned to duty status following

compliance. Claimed pay for time lost. Claim denied:

Local 120 vs. Smith’s Transfer (Brady Division) C#65,

JAC, June ’74.

Employee received one-day disciplinary suspension

(Monday) following weekend worked as junior seniority

employee. Absence not excused per criteria set forth in

Article 60, Section 1. Claim that normal seniority rules

should apply, and pay claim denied: Local 135 vs.

Roadway Express, C#67, Sept. ’73. ~

Grievant discharged for refusal to submit to a sobriety

test. Attendant circumstances indicated that request

made of driver to take test was not facetious. Contention

of grievant that he did not understand request did not

constitute acceptable defense. Discharge upheld: Local

413 vs. Eazor Express, C#423, Mar. "15; Local 710 vs.

Preston Trucking, C#595, Dec. "83; C#2-84-C11, NGC,

Feb. ’84.

Driver discharged for making false statements to State

Board regarding unavailability of work toinsure contin-

ued receipt of Unemployment Compensation; payments

reflected upon Employer retrospective rating: appeal

for reinstatement denied: Local 294 vs. APA Transport,

July’ 78, C#C-191-78-LC, EC JAC, July ’78; C#N-9-78-

E6, NGC, Sept. ’78.

— A-56 —

Employee failed to return to work after receiving full

duty release from his personal doctor, Company doctor

and State Board approved discontinuance of Worker’s

Compensation. Following warning letter, discharge for

excessive absenteeism was upheld: Local 120 vs. Con-

solidated Freightways, C#539, Dec. ’84.

Appeal of voluntary quit was denied when an employee ~

submitted a signed resignation after being offered but

rejecting union representation: Local 554 vs. Consoli-

dated Freightways, C#191, Mar. ’80.

Jailed employee did not report circumstances of absence

within 72 hours following end of requested vacation;

terminated as voluntary quit and request for retention

on seniority list denied: Local 135 vs. Bodge Lines,

C#422, Dec. 80. Decision based on Indiana Uniform

Rules & Regulations. (See also Ohio Rider (OR) and

Ohio Addendum (LC).

Time begins to toll on required 10-day appeal of dis-

charge (or suspension) when verifiable notice of Em-

ployer action is received. Appeal of discharge denied:

Lcecal 710 vs. Advance Transportation, C#125, Mar.’81.

NOTE. This is in fact an interpretive decision which

equates Mailgram/Telegram with the letter required by

Article 46.

Employee terminated as result of failure to return to

work, following release from Worker’s Compensation

status, although afforded several opportunities to make

himself available. Subsequent requests for reinstate-

ment on seniority list denied: Local 710 vs. Transcon

Lines, C#241, Sept. ’85.

Employee terminated as a result of failure to return to

work following release from Worker’s Compensation

a |

status and subsequent altering of Doctor’s statement.

Appeal of discharge denied: Local 554 vs. PIE, C#102,

June ’88.

Blood alcohol test taken approximately six (6) hours

after driver began tour of duty showed .088% blood

alcohol. Discharged for drinking on duty, which em-

ployee denied. However, if no alcohol was consumed

during the previous six (6) hours, application of Foren-

sic Medical Tables would fix blood alcohol content at a

.2 + % at beginning of tour. Discharge upheld: Local 100

vs. Roadway Express, C#138, Dec. ’85; NGC #C-N-2-86-

C13, Feb. ’86.

Where a Company complied in all respects with the

National Grievance Committee Agreement Procedures

for Handling Discipline Concerning Illegal Drug Use,

the discharge was upheld: Local 413 vs. Consolidated

Freightways, C#423, June ’86; N-8-86-C12, Aug. ’86.

Employee’s appeal of discharge for theft of time when

spending company on duty time in pursuit of personal

business was denied: Local 544 vs. Hankin Transporta-

tion Personnel, C#31, June ’89.

Employee discharged for failure to submit to a drug

alcohol test based on probable suspicion appealed the

discharge. The appeal was denied based on the fact the

Company complied with the provisions of Article 35:

Local 325 vs. Carolina Freight, C#184, June ’89.

Employee’s appeal of his discharge for positive test

results administered under the probable suspicion pro-

visions of Article 35 was denied: Local 200 vs. Advance

Transportation, C#i 865, June ’89.

—s

APPENDIX F

MASTER RAIL-TRUCK AGREEMENT FOR

THE LOCAL UNIONS SIGNATOR™ -°O THIS

AGREEMENT, SUPPLEMENTS & RIDERS

THERETO COVERING ROAD, CITY, GARAGE,

CLERICAL AND INTERMODAL YARD

EMPLOYEES FOR THE PERIOD OF

APRIL 1, 1998 THROUGH MARCH 31, 2003

ARTICLE 29. VACATIONS

Section 1. Avacation of one (1) week shall be granted

with pay to all employees covered by this Agree-

ment who have worked for the employer for a period

of one year or more.

Section 2. Avacation of two(2) weeks shall be granted

with pay to all employees covered by this Agree-

ment. who have worked for the Employer for a

period of two (2) years or more.

Section 3. A vacation of three (3) weeks shall be

granted with pay to all employees covered by this

Agreement who have worked for the Employer for

a period of ten (10) years or more.

Section 4. Avacation of for (4) weeks shall be granted

with pay to all employees covered by this Agree-

ment who have worked for the Employer for a

period of fifteen (15) years or more.

Section 5. Avacation of five (5) weeks shall be granted

with pay to all employee covered by this Agreement

who have worked the Employer for a period of

twenty (20) years or more.

— A-59 —

Section 6. The amount of vacation pay shall be forty-

five (45) hours for each week of vacation at the

employee’s applicable rate of pay.

Section 7. It is understood that during the first year

an employee must have been employed for the full

years, exclusive of injury and sickness, in order to

be entitled to a vacation. During the second and

subsequent years the employee must have worked

60% of the total working days of the year, but need

not be employed for the full year to be eligible for

vacation. No more than one vacation may be earned

between anniversary dates of employee. Twelve

percent (12%) of regular employees shall be permit-

ted to split their vacation at their own discretion for

not less than one week

Section 8. Employees, at their option will be allowed

to work (if needed) Saturday and Sunday (or nor-

mal off days) prior to and following their vacation.

Section 9. If an employee notifies the Company in

writing (on forms provided by the Company) three

(3) weeks in advance of going on vacation, the

Company will have his vacation check ready prior

to taking his vacation.

ARTICLE 30. DRINKING WATER AND REST

ROOMS

(a) The Company shall furnish drinking water with

proper facilities for cooling at each terminal where

employees are stationed.

(b) The employer shall maintain clean sanitary rest

rooms with adequate toilet facilities where hourly

rated employees are domiciled.

gee eas

— A-60 —

ARTICLE 31 DISCIPLINE

Section 1. The Union agrees to do all in its power to

assist the Employer in requiring the employees to

give the Employer and honest day’s work and abide

by the rules and the regulations of the Employer

which are not in conflict with this Agreement.

Section 2. The Employer shall not discharge, sus-

pend or take disciplinary actions as respects any

employee without just cause, but in respect to

discharge, suspension or other disciplinary action

shall give at least one (1) warning notice of the

complaint against the employee to the employee in

writing, by Certified Mail and/or in person, and a

copy of same to the Union affected by Certified

Mail, except that no warning notice need be given to

an employee before he is discharged if the cause for

such discharge is dishonesty, drinking of or under

the influence of alcoholic beverages, narcotics, or

drugs while on duty, or carries or permits the

carrying of drugs or narcotics on his person or

equipment that is prohibited by Federal or State

law, or drinking alcoholic beverages, or use of drugs

or narcotics on Company property, or recklessness

resulting in serious accident while on duty, or

carrying unauthorized passengers, or failure to

report an accident, or willful damage or destruction

of Company property or equ:pment or engaging in

unprovoked physical violence while on Company

property or while on duty or the failure to submit to

a sobriety/drug test upon request. The warning

notice as herein provided shall not remain in effect

for a period of more than six (6) months from the

date of said warning notice. All warning notices,

discharges, suspensions, or disciplinary action must

— A-61 —

be by proper written notice to the employee and the

Union affected.

Any employee may request an investigation as to

his discharge or suspension. Should the investiga-

tion prove and injustice has been done an employee,

he shall be reinstated. The Joint rail Truck Arbitra-

tion Committee shall have the authority to order

full, partial or no compensation for time lost. Ap-

peal from discharge, suspension, or warning notice

must be taken within ten (10) regular working days

by written notice, and a decision reached within

fifteen (15) days from the date of discharge, suspen-

sion or warning notice. If the employee involved is

not within the home terminal area when the action

of discharge, suspension or warning notice is taken,

the ten (10) day period will start from the date of his

return to the home terminal. Ifno decision has been

rendered on the appeal within fifteen (15) days, the

case shall then be taken up as provided in Article 44

of this Agreement.

Section 3. Inallcases where an employee is unable to

report to work at the regular starting time, for any

reason, he shall immediately notify the Supervisor

on duty. Failing to so notify the Supervisor on duty,

he shall not be reinstated upon his return to work

unless reasonable explanation is furnished to the

Employer. The first violation of this Article shall

result in a warning notice to the employee. On the

second such violation of the Article, the employee

may be disciplined or discharges. Habitual absen-

teeism will be grounds for discharge after proper

notice to the employee and the Union

— A-62 —

ARTICLE 32. COURT AND JURY DUTY

Section 1. Employees away from their regular as-

signed duties at the request of the Company to

attend court or to appear as a witnesgf/for the

Company or any other purpose on instructipns from

the Company will be furnished transportation.and

expenses and will be allowed compensation equal to

the amount that would have been earned had such

interruption not occurred.

Section 2. When the employee is called on jury duty

he shall be paid the daily guarantee each day he

serves less that amount he earned as a juror.

ARTICLE 33. TRANSFER OF COMPANY TITLE

OR INTEREST

The Employer’s obligations under this Agreement in-

cluding Supplements shall be binding upon its succes-

sors. administrators. executors and assigns. The Em-

ployer agrees that the obligations of this Agreement

shall be included in the agreement of sale. transfer or

assignment of the business. In the event an entire

operation, or portion thereof, or rights only are sold,

leased. transferred or taken over by sale, transfer, lease.

transfer, lease. assignment, receivership, or bankruptcy

proceedings. such operation or use of rights shall con-

tinue to be subject to the terms and conditions of this

Agreement for the life thereof. Transactions covered by

this provision include stock sales or exchanges. merg-

ers. consolidations. spin-offs or any other method by

which a business is transferred.

— A-63 —

APPENDIX G

U.S. Department of Labor

Office of Labor-Management Standards

1222 Spruce Street, Suite 9, 109E

St. Louis, Missouri 63103

Telephone Number: (314) 539-2667

FTS: 8-262-2667

Reply to the Attention of:

June 3, 1991

Mr. James Askew

P.O. Box 3436

St. Louis, Missouri 63143

Dear Mr. Askew:

This is to confirm your conversation with Investigator

Robert Lewis concerning access to Labor Bulletins from

the Missouri-Kansas Motor Carriers Conference, Inc.

Section 104 of the Labor-Management Reporting and

Disclosure Act of 1959, as amended (LMRDA) requires

that documents or decisions which interpret or clarify

contractual agreements and/or are used in the griev-

ance process to approve or deny such grievances, be

made available to members who wish to view them.

It is my understanding that IBT Local 600, does main-

tain copies of Labor Bulletins from the Missouri-Kansas

Motor Carriers Conference. It is also my understanding

that the procedure for a member to view the bulletins

requires a member to contact the President of the union

and make an appointment to view the bulletins. The

member may view, but not copy, the documents in

question. However, notes may be taken by the member.

The union may have someone in the room while the

eo

member is reviewing the documents. Union officers and

employees are not required to interpret the bulletins for

the member. Any union officer or employee may inter-

rupt the inspection at any time for reference to the

Labor Bulletins.

This letter does not constitute a finding that Local 600

has or has not violated Section 104 with respect to

members’ access to these bulletins.

Sincerely, /s/ John B. Mitchell

JOHN B. MITCHELL

District Director

—_S ee

U.S. DEPARTMENT OF LABOR

LABOR-MANAGEMENT SERVICES

ADMINISTRATION

210 North 12th Boulevard - Room 570

St. Louis, Missouri 63101

Phone: 314-425-4691

September 17, 1979

Mr. James Askew

5271 Cedarstone Court

St. Louis, Missouri 63129

Dear Mr. Askew:

This office has been advised by Teamsters Local 600

that the Contract Guide Covering the National Master

Freight Agreement and Central States Supplemental

Agreements will be available for inspection by members

beginning on September 24, 1979. Examination will be

allowed at the Local’s offices during normal business

hours, subject to reasonable request.

Please advise this office when examination has been

permitted.

Sincerely,

/s/ Gregory P. Egan

GREGORY P. EGAN

Acting Area Administrator

— A-66 —

APPENDIX H

U.S. EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

St. Louis District Office

1222 Spruce St. Room 8. 100

St. Louis, MO 63103 |

PH: (314) 539-7800

TDD: (314) 539-7803 FAX: (314) 539-7894

Charge No. 280932156

Mr. James Askew

P.O. Box 3436

St. Louis, MO 63143

Charging Party

Union Pacific Railroad Company

Attn: Mr. Don Berra EEO Manager

1416 Dodge Street Room 321

Omaha, Nebraska 68179

Respondent

DETERMINATION

Under the authority vested in me by the commission, I

issue the following determination as to the merits of the

subject charge filed under Title I of the Americans With

Disabilities Act (ADA).

Evidence obtained during the investigation of the charge

revealed that Respondent was enforcing a return to

work policy that was in violation of the ADA. At onsite

review Respondent admitted that the only way for an

employee to return to work after an injury or illness is

for the employee’s personal physician to release the

employee without restrictions.

— A-67 —

Respondent’s return to work policy violates the ADA.

The ADA specifically states that an employer may not

use an employment practice or policy that screens out or

tends to screen out an individual with a disability or a

class of individuals with disabilities. The employer may

not limit, segregate, or classify an individual with a

disability in any way that negatively affects the indi-

vidual in terms of job opportunity and advancement.

Respondent’s policy of only allowing employees who

were released by a physician to return to full duty,

without restrictions, screens out those employees who

have disabilities, and negatively affected their ability to

return to work after illness or injury. Based on this

analysis, I find that the evidence obtained during the

investigation establishes that Respondent violated Title

I by not allowing employees who had sustained injury or

illness to return to work with a medical release from

their personal physician that contained restrictions.

Respondent did not attempt to evaluate each situation

based on factual evidence to determine if the employee

was an “individual with a disability” as defined under

the ADA, if the employee could perform the essential

functions of their job with or without an accommoda-

tion, or make attempts to identify an effective accommo-

dation.

Upon finding that there is reason to believe that viola-

tions have occurred, the Commission attempts to elimi-

nate the alleged unlawful practices by informal meth-

ods of conciliation. Therefore, the Commission now

invites the parties to join with it in reaching a just

resolution of this matter. The confidentiality provisions

of Sections 706 and 709 of Title VII and commission

Regulations apply to information obtained during con-

ciliation.

—S

If Respondent declines to discuss settlement or when,

for any other reason, a settlement acceptable to the

Office Director is not obtained, the Director will inform

the parties and advise them of the court enforcement

alternatives available to aggrieved persons and the

Commission. A Commission representative will contact

each party in the near future to begin conciliation.

On Behalf of the Commission:

/s/ Lynn Bruner

Lynn Bruner

District Director

Date: APR 19 1996

ce: Mr. Clifford A. Godiner Peper,

Martin, Jensen, Maichel and Hetlage

Twenty-Fourth Floor

720 Olive Street

St. Louis, MO 63101-2396

— A-69 —

APPENDIX I

KASSLY, BONE, DIX, ENGLISH &

WEILMUENSTER P.C.

ATTORNEYS AT LAW

5111 WEST MAIN STREET ™

BELLEVILLE, Illinois 62226

AREA CODE 618 —

235-0020 271-1600

FACSIMILE # (618) 235-2382

St Louis Office: (314) 231-1022

WALTER A. KASSLY (1915-1982)

MAURICE E. BONE BARRY

D. DIX

JOHN M. ENGLISH

J. MICHAEL WEILMUENSTER*

DAVID H. BONE JOSEPH R. HILLEBRAND*

ILLINOIS AND MISSOURI

June 19, 1997

State of Illinois Industrial Commission

100 West Randolph St. Suite 8-200

Chicago, IL 60601

RE: James J. Askew v. Rail Terminal Services 97 WC

To Whom It May Concern:

This firm has been retained to represent James A-

Askew in regard to the above-captioned matter.

Enclosed is an original and two_(2) copies of the

Application for Adjustment of Claim and an original

and one (1) copy of the Attorney Representation Agree-

ment, in regard to the above captioned matter.

spa

In accordance with the Rules of the Industrial Com-

mission, a copy of each document is being forwarded this

date to the Respondent.

Please place this case on the appropriate docket for

hearing at your convenience.

Very truly yours,

KASSLY, BONE, DIX, ENGLISH

& WEILMUENSTER, P.C. In

BY /s/ David H. Bone

David H. Bone

DHB:ke Enc. cc: Rail Terminal Services

Mr. James A. Askew

— A-71—

KASSLY, BONE, ENGLISH &

WEILMUENSTER, P.C.

ATTORNEYS AT LAW

5111 WEST MAIN

BELLEVILLE, ILLINOIS 62226-4797

Area Code 618

235-0020 271-1600 Toll Free: 1-800-359-2502

Facsimile #(618) 235-2382

Walter A. Kassly (1915-1982)

Maurice E. Bone*

John M. English

J. Michael Weilmuenster*

David H. Bone

Joseph R. Hillebrand*

*Tllinois and Missouri

December 5, 2000

Illinois Industrial Commission 701 South Second Street

Springfield, IL 62704

Re: James Askew v. Pacific Rail Services No. 97SC34139

December 12, 2000 - Belleville Docket

To Whom It May Concern:

The above case is listed as #143 on the December 12th

Belleville docket. The parties are currently still in-

volved in settlement negotiations and we are, therefore,

requesting a continuance from this docket.

Thank you for your attention to this matter.

Sincerely,

KASSLY, BONE, ENGLISH &

WEILMUENSTER, P.C.

By:

Maurice E. Bone MEB/ajb

cc: Mr. Jim Askew

— A-72 —

APPENDIX J

U.S. Department of Labor

Occupational Safety and Health Administration

11 Executive Drive, Suite 11

Fairview Heights, IL 62208

618/632-8612

July 16, 1997

James Askew P.O. Box 3436 St. Louis, MO 63143

Dear James Askew:

In response to your nonformal complaint of safety and

health hazards at:

Union Pacific Railroad

Route 3

Dupo, IL 62239,

the Occupational Safety and Health Administration

(OSHA) has sent a letter to Union Pacific Railroad

requesting that the appropriate action be taken to

correct the situation. Enclosed is a copy of that letter for

your information. As the letter indicates, the employer

has been given 5 days to correct the hazards.

Please notify me if no correction has been made within

5 calendar days. We have not revealed your identity to

the employer. When we receive additional information

from the employer, we will notify you of his response.

Section 11 (c) of the OSH Act provides protection for

employees against discrimination because of their in-

volvement in protected safety and health related activ-

ity. If you believe you are being treated differently or

action is being taken against you because of your safety

— A-73 —

or health activity, you may file a complaint with OSHA.

You should file this complaint as soon as possible, since

ConA a can — ref those fr filed

Your continued interest in workplace safety and health

is appreciated.

Respectfully,

/s/ Richard W. Taylor

for Peggy A. Zweber

Area Director

Enclosure

— A-74 —

APPENDIX K

U.S. Department of Labor

Occupational Safety and Health Administration

11 Executive Drive, Suite II

Fairview Heights. IL 62208

618/6328612 FAX: 618/632-5712

December 1, 1997

Rail Terminal Services.

P.O. Box 40

Dupo, IL 62239

Re: Inspection Number 300605649

Dear Sirs:

The above case has been reviewed and is being amended.

The penalty of $800 has been added to Citation 1, Item

1. Due to an administrative error, the penalty was

omitted from the Citation which was sent to you on 11/

26/97, We are sorry for the inconvenience this may have

caused.

Attached is a copy of the amended OSHA-2, Citation

and Notification of Penalty. This amended citation

must be posted with the original citation until the

amended violation(s) has been abated or for 3 working

days, whichever is longer.

You have 15 working days from the date of receipt of this

amended citation to contest those portions of the origi-

nal citation which have been amended. The contest

period is not extended for the unamended portions of the

original citation.

— A-75 —

If you have any questions concerning this matter, please

contact this office at 618/632-8612.

Sincerely,

/s/ Richard W. Taylor

for Peggy A. Zweber

Area Director

cc: James Askew

Attachment

—

U.S. Department of Labor Occupational Safety

and Health Administration

Inspection Number: 300605649

Inspection Dates: 10/08/97 - 11/17/97

Issuance Date: 12/01/97

Citation and Notification of Penalty

Company Name: Rail Terminal Services

Inspection Site: Route 3(UNION PACIFIC RAIL YARD),

Dupo, IL 62239

Citation I Item I Type of Violation: OTHER

This amended citation must be posted with the original

citation until the amended violation(s) has been abated,

or for 3 working days, whichever is longer.

The employer has 15 working days from the date of

receipt of this amended citation to contest those por-

tions of -the original citation which have been amended.

The contest -period is not-extended for the unamended

of the original citation.

The following item(s), as described in the attached

citation, is (are) amended as follows.

THE PENALTY HAS BEEN ADDED

29 CFR 1904.2 (a)

The log of occupational injuries and illnesses (OSHA

Form No. 200 or its equivalent) was not completed in the

detail provided in the form and the instructions con-

tained therein

Po

The 1997 OSHA 200 Form did not have the actual

number or an estimate of the days of lost work time for

at least three cases which were listed as lost time.

Date By Which Violation Must Be Abated: 12/08/97

Proposed Penalty: $800.00

/s/ Richard W. Taylor

for Peggy A. Zweber

Area Director