# Appendix — Askew v. Union Pacific Railroad

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 903

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1751%3A2. Public record. Not legal advice.