L. N. McClendon, et al v. Union Pacific Railroad Company

Filing

OPINION FILED - THE COURT: ROGER L. WOLLMAN, JAMES B. LOKEN and LAVENSKI R. SMITH. James B. Loken, Authoring Judge (PUBLISHED) [3789224] [10-2166]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 10-2166
___________
L. N. McClendon; Brotherhood of
Locomotive Engineers and Trainmen,

*
*
*
Plaintiffs - Appellants,
* Appeal from the United States
* District Court for the
v.
* Western District of Missouri.
*
Union Pacific Railroad Company,
*
*
Defendant - Appellee.
*
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Submitted: January 12, 2011
Filed: May 19, 2011
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Before WOLLMAN, LOKEN, and SMITH, Circuit Judges.
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LOKEN, Circuit Judge.
Historically, railroad engineers were members of the Brotherhood of
Locomotive Engineers and Trainmen (“BLET”); conductors and other trainmen were
members of the United Transportation Union (“UTU”). Today, with railroad jobs
consolidated in a reduced workforce, engineers often work as trainmen and vice
versa. But the unions have not merged, and the Railway Labor Act provides that an
employee need only be a member of one union while working in any train service
capacity. 45 U.S.C. § 152 Eleventh (c). The result is that a member of one union
may be disciplined while working under the other union’s collective bargaining
agreement. This situation has created recurring litigation and perplexing

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“jurisdictional” disputes, as this appeal illustrates. See generally Landers v. Nat’l
R.R. Passenger Corp., 485 U.S. 652, 656-58 (1988); Ryan v. Union Pac. R.R., 286
F.3d 456, 458-59 (7th Cir.), cert. denied, 537 U.S. 880 (2002).
The Union Pacific Railroad Company (“UP”) terminated L. N. McClendon, a
member of the BLET, while he was working under a governing collective bargaining
agreement between the UP and the UTU (the “UP-UTU Agreement”). The BLET
filed a grievance (claim) with the UP seeking reinstatement and backpay. The UP
denied the grievance, and the BLET filed an arbitration claim with the National
Railroad Adjustment Board (“the NRAB”), the Railway Labor Act’s preferred method
of resolving “minor” disputes. See 45 U.S.C. § 153 First (i); Union Pac. R.R. v. Bhd.
of Locomotive Eng’rs & Trainmen, 130 S. Ct. 584, 591 (2009). After the NRAB
dismissed the claim as procedurally defective, McClendon and the BLET
(“Plaintiffs”) filed this lawsuit to set aside the NRAB Award. The district court1
denied discovery requests and granted summary judgment for the UP. Plaintiffs
appeal. We affirm.
The BLET grievance alleged, inter alia, that the UP, in terminating
McClendon, improperly interpreted Article 12 of the UP-UTU Agreement, governing
layoffs and leaves of absence. While processing the grievance “on property,”2 the UP
warned at least twice that the BLET was not the proper party to represent McClendon
because he was terminated while working under the UP-UTU Agreement.
After the UP denied the grievance, the BLET filed a claim for McClendon with
the NRAB’s First Division, which has jurisdiction over disputes involving train

1

The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
2

The initial processing of a grievance by the railroad employer is known as the
“on-property” stage of the claim. See Union Pacific, 130 S. Ct. at 591.
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service employees. 45 U.S.C. § 153 First (h). The NRAB issued a “Third Party
Notice” seeking the views of the UTU, which urged the arbitration Board to dismiss
the claim because (i) it was not timely presented to the UP by McClendon as required
in Article C-16 of the UP-UTU Agreement,3 and (ii) it was not “handled in the usual
manner” under the Railway Labor Act, as required by the NRAB’s rules, see 29
C.F.R. § 301.2(b), because the BLET had no jurisdiction to interpret the UP-UTU
Agreement and therefore “the case should have been forwarded to the UTU to
handle.” Though the UTU believed that the termination violated Article 12(C) of the
UP-UTU Agreement, it urged the NRAB to dismiss the procedurally barred claim
rather than “undo the errors of others.”
The NRAB dismissed the claim. After noting that it had jurisdiction, the
NRAB concluded that the BLET has “no representation rights” for conductors, like
McClendon, who are covered by the UP-UTU Agreement; that Article C-17 of the
Agreement “unquestionably vests” in the UTU the right to represent conductors in
matters involving interpretation of Article 12 of the UP-UTU Agreement; and that the
BLET “had no authority to progress the instant claim.” Accordingly, the Award
ended, “we find that the clear language of the Agreement is controlling and we are
compelled to dismiss this claim.” McClendon and the BLET then filed this suit to
vacate and set aside the NRAB Award. Applying the relevant standard of review,
which is “among the narrowest known to the law,” Union Pac. R.R. v. Sheehan, 439
U.S. 89, 91 (1978) (quotation omitted), the district court concluded that it could not
disturb the NRAB’s interpretation of the UP-UTU Agreement. Plaintiffs appeal. We

3

Article C-16 provided in relevant part: “1. All claims must be presented in
writing by the employe[e] involved . . . to the officer of the Company authorized to
receive same within 30 days from the date of the occurrence on which the claim is
based, otherwise claim is thereafter barred.” The UTU argued that the claim was
“procedurally defective” because McClendon never filed a claim with the UP and the
BLET General Chairman did not appeal to the proper UP officer.
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review the grant of summary judgment de novo, applying the same standard as the
district court. Brooks v. Union Pac. R.R., 620 F.3d 896, 899 (8th Cir. 2010).
Plaintiffs argue that the NRAB violated the UP-UTU Agreement by
“legislat[ing] . . . right out of the contract” the second sentence of Article C-17, which
provides:
The right to represent conductors or trainmen in making and
interpreting agreement, rules and rates of pay, and in handling seniority
for conductors and trainmen shall be vested in the regularly constituted
committee representing the conductors and trainmen employed by the
[UP]. This, however, does not abridge the right of any conductor or
trainman to take up a personal grievance with the officials of the
Railroad, either by a personal representative or through the Committee
of the organization with which it is affiliated.
But the NRAB did not ignore this contract provision. It determined that the second
sentence did not apply to McClendon’s claim because that sentence “deals with
taking up a ‘personal grievance’ as opposed to the claim involving an interpretation
[of Article 12] of the UTU Agreement improperly progressed to the First Division by
the BLET.” Under the narrow standard of review prescribed by the Railway Labor
Act in 45 U.S.C. § 153 First (q), we may not reconsider the NRAB’s interpretation
of the UP-UTU Agreement. “[T]he question . . . is not whether the arbitrator or
arbitrators erred in interpreting the contract; it is not whether they clearly erred in
interpreting the contract; it is not whether they grossly erred in interpreting the
contract; it is whether they interpreted the contract.” Hill v. Norfolk & W. Ry., 814
F.2d 1192, 1194-95 (7th Cir. 1987); see Finley Lines Joint Protective Bd. v. Norfolk
So. Ry., 312 F.3d 943, 946 (8th Cir. 2002); Bhd. of Maint. of Way Emps. v. Soo Line
R.R., 266 F.3d 907, 909-10 (8th Cir. 2001).
Plaintiffs suggest the NRAB’s interpretation of Article C-17 violated 45 U.S.C.
§ 153 First (j) (“Parties may be heard [by the NRAB] either in person, by counsel, or

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by other representatives, as they may respectively elect . . . .”). We disagree. The
RLA provides that, at the on-property stage, disputes “shall be handled in the usual
manner.” 45 U.S.C. § 153 First (i). This provision “allows the railroad and the union
to prescribe in the collective bargaining agreement the manner in which grievance
proceedings shall be conducted on the property.” Ryan, 286 F.3d at 459 (emphasis
in original). The NRAB construed Article C-17 as requiring that claims involving
interpretation of the UP-UTU Agreement be progressed on- property by the UTU, an
interpretation we may not overturn. The Board then dismissed the claim as
procedurally barred by the failure to comply with 29 C.F.R. § 301.2. It did not
address whether § 153 First (j) would have permitted McClendon to be represented
by the BLET (or anyone else) if his claim had been properly before the Board.
McClendon and the BLET next argue that the NRAB violated its obligations
under the RLA by refusing to adjudicate the merits of McClendon’s claim in a
“jurisdiction-type ruling.” The contention is without merit. This is not a case where
the NRAB “refus[ed] to adjudicate . . . on the false premise that it lacked power to
hear” the case. Union Pacific, 130 S. Ct. at 599. The Board explicitly noted that it
had jurisdiction and dismissed the claim because, procedurally, it was not progressed
to arbitration in the manner required by the UP-UTU Agreement as construed by the
NRAB and therefore failed to comply with 29 C.F.R. § 301.2. The Board invoked a
“claim-processing” rule, not a jurisdictional prerequisite. Union Pacific, 130 S. Ct.
at 598. Plaintiffs’ non-compliance with the rule was timely raised, and the NRAB
acted well within its power to enforce it. See id. at 598 n.9 (the NRAB has authority
to adopt such rules “backed by effective sanctions”).
Plaintiffs characterize the NRAB’s unfavorable interpretation of the UP-UTU
Agreement as a “new jurisdictional rule” that violated McClendon’s right to due
process by overlooking Plaintiffs’ justifiable reliance on past instances in which the
BLET handled on-property conductor grievances under the UP-UTU Agreement and
was allowed to progress grievance denials to the NRAB. But there was no unfair
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surprise in this case, much less a due process violation. The NRAB Rules and the
RLA expressly state that a claim may not be arbitrated unless it has been progressed
in the usual manner. See 45 U.S.C. § 153 First (i); 29 C.F.R. § 301.2. The UP twice
warned McClendon the BLET was not the proper party to progress his claim. The
NRAB was well within its authority in construing the UP-UTU Agreement as
enunciating the “usual manner” in this workplace. Compare Ryan, 286 F.3d at 459.
McClendon and the BLET make the related argument that the NRAB failed to
consider all the relevant contracts, specifically, the BLET’s independent agreement
with the UP, and contend that the UTU did not acquire the contractual right of
exclusive representation until after the handling of McClendon’s on-property
grievance. But, once again, these are matters of contract interpretation left to the
NRAB. Moreover, Landers makes clear there are good reasons not to construe a
collective bargaining agreement as allowing a minority union to participate actively
in administration of the contract. 485 U.S. at 656-58. Once the NRAB determined
that the UP-UTU Agreement was controlling -- a determination we may not revisit -the other agreements and bargaining history became largely irrelevant.
Finally, Plaintiffs argue that the district court abused its discretion by denying
their requests for discovery pertaining to the past practices and relationships between
the UP, the BLET, and the UTU. See Marksmeier v. Davie, 622 F.3d 896, 903 (8th
Cir. 2010) (standard of review). Plaintiffs completely fail to explain how the
requested discovery would have affected judicial review of the NRAB’s procedural
dismissal. As we see it, discovery would not have justified setting aside the NRAB’s
interpretation of the UP-UTU Agreement, nor would it have uncovered a due process
violation by the NRAB. There was no clear abuse of discretion.
The judgment of the district court is affirmed.
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