Copeland v. Soo Line Railroad Company et al

Filing 48

MEMORANDUM Opinion and Order Signed by the Honorable Rebecca R. Pallmeyer on 9/7/2021.(rbf, )

Case: 1:20-cv-04451 Document #: 48 Filed: 09/07/21 Page 1 of 20 PageID #:850

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WILLIAM COPELAND,
Plaintiff,
v.
SOO LINE RAILROAD CO. d/b/a
CANADIAN PACIFIC, SMART-TD/UTU
LOCAL 1433, SMART-TD GENERAL
COMMITTEE OF ADJUSTMENT GO-261,
and INTERNATIONAL ASSOCIATION OF
SHEET METAL, AIR, RAIL AND
TRANSPORTATION WORKERS,
Defendants.

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No. 20 C 4451
Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER
Plaintiff William Copeland brings this hybrid action against his employer and his union
under the Railway Labor Act, 45 U.S.C. § 151 et seq. (“RLA”). Copeland alleges that Soo Line
Railroad Company, d/b/a Canadian Pacific (“CP/Soo”) breached its collective bargaining
agreement with Plaintiff’s union by terminating him without good cause. He further alleges that
the International Association of Sheet Metal, Air, Rail and Transportation Workers (“SMART” or
“the International”), the SMART Transportation Division (“SMART-TD”) General Committee of
Adjustment GO-261, and SMART-TD Local 1433 (collectively, the “Union Defendants”) breached
their duty of fair representation by mishandling a grievance following his termination. Before the
court are two motions: (1) a motion by the International and Local 1433 to dismiss this case for
failure to state a claim, and (2) a motion by CP/Soo to dismiss the case for lack of subject-matter
jurisdiction and failure to state a claim. For the reasons provided below, the court grants the
Union Defendants’ motion [36] and dismisses the International and Local 1433 as Defendants in
this case. The court also grants CP/Soo’s motion [38] and dismisses Count I of the Second
Amended Complaint.

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BACKGROUND
At this stage of the proceedings, the court accepts the factual allegations in the Second
Amended Complaint (“SAC”) as true. Copeland has worked as a train conductor with CP/Soo in
Franklin Park, Illinois since 2004. (SAC [31] ¶¶ 5–6.) He is a member of Local 1433, an affiliate
of SMART International. (Id. ¶ 14.) Both Local 1433 and SMART are named as Defendants.
Also named is the General Committee of Adjustment GO-261 (“GCA 261”), an intermediate
organization within the International. (Id. ¶¶ 10–12.) GCA 261 “shares representation and
negotiation duties” with approximately 12 locals “[in their] dealings with the employers of [their]
members,” 1 including disputes between Local 1433 members and CP/Soo. (Id. ¶¶ 11, 13.) The
International “maintains a constitution . . . governing virtually all aspects of these subunits.” (Id.
¶ 9.)

Plaintiff pays dues to all three organizations—Local 1433, GCA 261, and SMART

International. (Id. ¶ 14.)
On May 13, 2017, CP/Soo terminated Copeland for allegedly failing to report another
conductor’s unauthorized use of an electronic device in violation of the General Code of Operating
Rules (“GCOR”). (Id. ¶ 15 (citing GCOR 1.4 (duty to report) and 2.21 (electronic devices)).)2
Plaintiff and Engineer Grace Kocur were on a train with Conductor Eric Rodriguez when
Rodriguez allegedly used his cell phone (a violation of GCOR 2.21), and both Copeland and Kocur

The Union Defendants dispute this allegation, arguing that the International’s
Constitution “vests such representation and negotiation duties exclusively with the GCA.” (Union
Mem. [37] at 7 (emphasis in original) (citing SMART Constitution, Ex. A to Union Mem. [37-1] at
Article 21B, Section 85 (“Duties of General Committees of Adjustment”)).) The court may consider
the SMART Constitution without converting Defendants’ motion into a motion for summary
judgment because the document is referenced in the complaint (see SAC ¶ 9) and is central to
Plaintiff’s claim. See Mueller v. Apple Leisure Corp., 880 F.3d 890, 895 (7th Cir. 2018). That
being said, it is unclear what language in the Constitution vests exclusive authority with General
Committees, as opposed to locals, for representation and negotiation. (See SMART Constitution
at Article 21B, Section 85: 3–9 (“General Committees of Adjustment shall have authority to make
and interpret agreements with representatives of transportation companies . . . [and] shall
investigate all matters properly submitted to them . . . .”))
1

The court is uncertain of the source of these rules, but it appears they have been
adopted by a number of railroads. Plaintiff has not challenged their enforceability.
2

2

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were terminated for their failure to report Rodriguez’s violation to CP/Soo. (Id. ¶ 17.) 3 CP/Soo
also terminated Rodriguez but later reinstated him under a leniency agreement. (Id. ¶ 16.) Kocur,
who belonged to Local 790 of the Brotherhood of Locomotive Engineers and Trainmen, filed a
grievance that proceeded to arbitration.

(Id. ¶¶ 18–19.)

The Public Law Board (“PLB”)

determined that Conductor Rodriguez had used his cell phone during a designated meal break,
and because there was no violation of GCOR 2.21, Kocur had no duty to report under GCOR
1.4. 4 (Id ¶ 19.) Kocur was reinstated and received a “make-whole remedy,” including backpay,
retirement credits, and benefits. (Id.)
Copeland’s circumstances were “identical” to Kocur’s, but Copeland’s union did not
achieve the same outcome for him. (Id. ¶ 20.) Local 1433 filed a grievance in August 2017
contesting Plaintiff’s termination as a violation of the collective bargaining agreement (“CBA”).5
(Id. ¶ 21.) The Union properly pursued the grievance through the first two stages of the grievance
process, and CP/Soo denied the grievance at both stages. (Id. ¶ 23.) Local 1433 and GCA 261
“jointly shared responsibility for the prosecution and progression of Plaintiff’s grievance.” (Id.
¶ 26.) On April 12, 2018, CP/Soo “unilaterally” reinstated Plaintiff—evidently not as a result of the
union’s advocacy; CP/Soo characterizes the reinstatement as “an exercise of managerial
leniency.” (CP/Soo Mem. [39] at 2.) But CP/Soo refused to provide a make-whole remedy, so

3

The SAC does not specify the date of this incident.

Defendant CP/Soo argues in its brief that Rodriguez “admitted” to violating GCOR
1.4 and 2.21, and that this admission “conclusively establishes Plaintiff’s own rule violations for
failing to report Rodriguez’s rule violations.” (See CP/Soo Mem. [39] at 3 n.3 (citing Rodriguez
Leniency Reinstatement Agreement, Ex. M to Dittrich-Bigley Decl. [40-13]).) Plaintiff objects that
this exhibit contradicts Plaintiff’s allegation in the SAC that Rodriguez was using his cell phone
during a designated meal break. (Pl.’s Opp’n to CP/Soo [43] at 4.) The court sustains Plaintiff’s
objection and will not consider the exhibit in its analysis below.
4

The Union Defendants have attached an excerpt of the CBA to their brief. (See
Agreement Between CP/Soo and SMART-TD of 4/6/17 (hereinafter “CBA”), Ex. B to Union Mem.
[37-2].) Defendant CP/Soo has also attached a complete version of the CBA to a declaration
accompanying its brief. (See CBA, Ex. C to Dittrich-Bigley Decl. [40-3].)
5

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Copeland’s grievance proceeded to arbitration. (SAC ¶¶ 24–25.) The General Chairperson of
GCA 261, then Matt Marschinke, whose duty it was to “list” Copeland’s grievance for arbitration,
failed to do so before the August 21, 2018 deadline. (Id. ¶¶ 27–28.) Instead, Marschinke did not
list the grievance for arbitration until April 26, 2019 (id. ¶ 29), and the hearing took place before
the PLB on December 20, 2019. (Id. ¶ 36.) Plaintiff’s presence at this hearing was neither
requested nor required. (Id. ¶ 38.) On April 17, 2020, the PLB issued its opinion denying
Copeland’s grievance, allegedly because of the missed filing deadline. 6 (Id. ¶¶ 34–35.)
According to Copeland, he first learned about the missed filing deadline on April 27, 2020
in an email from Gerald Wallace, the new GCA 261 General Chairperson. (Id. ¶ 46.) Copeland
alleges that during his tenure as General Chairperson, Marschinke “missed deadlines or botched
the grievances of at least four other Soo Line employees and SMART union members.” (Id. ¶ 30.)
In fact, Plaintiff alleges, at the time of Copeland’s grievance, Marschinke “had largely abandoned
his duties” as General Chairperson. (Id. ¶ 31.) Plaintiff filed charges against Marschinke, as
authorized by the SMART Constitution, but the International notified Copeland on July 28, 2020
that it would not pursue his charges further. (Id. ¶ 47.)
Plaintiff alleges that “reasonably relied” on Local 1433 and GCA 261 to process his
grievance in a timely fashion. (Id. ¶ 22.) He asserts, on information and belief, that GCA 261, the
International, and CP/Soo “were all aware” that Marschinke had mishandled four other union

CP/Soo has attached exhibits showing that it reinstated Kocur on April 25, 2018,
her grievance timely proceeded to arbitration, and the PLB reached a decision on October 10,
2018. (CP/Soo Mem. at 5 n.5 (citing Kocur Reinstatement Letter, Ex. J to Dittrich-Bigley Decl.
[40-10]; PLB Kocur Decision, Ex. A to Tews Decl. [41-1]).) CP/Soo emphasizes that because
Kocur’s PLB decision came after the August 21, 2018 deadline to list Plaintiff’s grievance for
arbitration, CP/Soo had no way of knowing that Kocur would ultimately succeed at arbitration.
(CP/Soo Mem. at 5 n.5.) These facts contradict Plaintiff’s allegation that CP/Soo acted in bad
faith by forcing him to litigate this matter “with full knowledge of the PLB decision in the identical
Kocur matter.” (SAC ¶ 52.) Setting aside the propriety of considering these exhibits on a motion
to dismiss, the court notes that the precise timeline of Kocur’s arbitration process is ultimately
irrelevant to the court’s resolution of CP/Soo’s motion to dismiss. More importantly, regardless of
how Kocur’s grievance was resolved, Plaintiff was entitled to challenge his own termination, as
well as his union’s alleged delay in pursuing his grievance.
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members’ grievances. (Id. ¶ 42.) At some point, General Chairperson Wallace “communicated
with” a SMART-TD International Vice President “about Plaintiff’s situation.” (Id. ¶ 43.) Plaintiff
does not say whether there was any response to this communication, but he alleges that GCA
261 and the International “failed to take timely action to correct or address this problem”
(presumably a reference to Marschinke’s failures). (Id. ¶ 44.)
Plaintiff asserts that he maintained email communication with Marschinke and Wallace
from the beginning of the grievance process until the PLB’s decision, requesting status updates
and asking if the Union needed anything from him. (Id. ¶ 45.) Marschinke and Wallace responded
in ways that led Copeland to believe “that the grievance was on track and moving forward, and
that there was nothing further that Plaintiff needed to do.” (Id.) Instead, because of the Union’s
“arbitrary handling of Plaintiff’s grievance,” Copeland was denied a make-whole remedy from the
PLB. (Id. ¶ 35.) Plaintiff notes that the PLB’s opinion stated that the Union and CP/Soo had
reached a settlement in Plaintiff’s case (id. ¶ 39), but he was unaware of and did not participate
in a settlement. 7 (Id. ¶ 40.) Plaintiff still has not received backpay, retirement credits, and other
benefits that he would have received for the eleven months from his termination to the date of his
reinstatement. (Id. ¶ 41.)
Plaintiff filed this suit on July 29, 2020, bringing four counts against CP/Soo and the Union
Defendants under the RLA. Count I alleges that CP/Soo breached the CBA by terminating him
without good cause and then “[taking] advantage of, and [being] complicit in, the subsequent
CP/Soo asks the court to take judicial notice of the PLB’s decision. (See CP/Soo
Mem. at 6 n. 7 (citing Copeland PLB Decision, Ex. B to Tews Decl. [41-2]).) Because Plaintiff has
not challenged the authenticity of the document, the court is free to do so. See F ED. R. EVID.
201(b)(2); Skiba v. Ill. Cent. R.R. Co., No. 19 CV 2267, 2020 WL 1330651, at *1 n.2 (N.D. Ill. Mar.
23, 2020) (taking judicial notice of PLB documents in an RLA case). That being said, both CP/Soo
and Plaintiff seem baffled by the PLB’s reference to Plaintiff having been “reinstated after the case
was recently settled.” (Copeland PLB Decision at 2.) CP/Soo disputes that it “settled” Plaintiff’s
grievance in any way other than reinstating Plaintiff as an act of leniency. (See CP/Soo Mem. at
6 n.6.) Plaintiff similarly denies being aware of or participating in any settlement, alleging that
“[t]he exact date, location, and terms of any such settlement remain unknown to Plaintiff.” (SAC
¶ 40.) The court assumes for purposes of this opinion that there was no settlement of Plaintiff’s
claims against CP/Soo.
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failure of the [Union Defendants] to uphold their duty to represent Plaintiff.” (Id. ¶ 51.) Count II
alleges that Local 1433 breached its duty of fair representation (“DFR”) by handling Plaintiff’s
grievance in an arbitrary fashion and failing to keep him informed about the status of his grievance
and arbitration. (Id. ¶¶ 57–58.) Count III similarly alleges that GCA 261 breached its DFR to
Plaintiff. (Id. ¶¶ 64–65.) Finally, Count IV alleges that the International breached its DFR to
Plaintiff by handling his grievance in an arbitrary fashion and failing “to take timely action to correct
or address” Marschinke’s past lapses in pursuing grievances on behalf of other union members.
(Id. ¶¶ 71–72.)
LEGAL STANDARD
To survive a motion to dismiss under F ED. R. CIV. P. 12(b)(6), a complaint must contain
“enough factual matter (taken as true)” to suggest that a plaintiff is entitled to relief. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 556 (2007). By contrast, courts “are not bound to accept as true a
legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 555). Courts generally “do not require heightened fact pleading of
specifics, but only enough facts to state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
A motion to dismiss under F ED. R. CIV. P. 12(b)(1) challenges the existence of subjectmatter jurisdiction. The party invoking federal jurisdiction bears the burden of establishing that
jurisdiction is proper. See Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688, 691 (7th Cir.
2015). When a defendant challenges the sufficiency of the allegations concerning subject-matter
jurisdiction, the court accepts all well-pleaded factual allegations as true and draws all reasonable
inferences in favor of the plaintiff. See Remijas, 794 F.3d at 691; Apex Digital, Inc. v. Sears,
Roebuck & Co., 572 F.3d 440, 443–44 (7th Cir. 2009) (distinguishing between facial challenges
and factual challenges to subject-matter jurisdiction); Silha v. ACT, Inc., 807 F.3d 169, 174 (7th
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Cir. 2015) (stating that “when evaluating a facial challenge to subject matter jurisdiction under
Rule 12(b)(1), a court should use Twombly-Iqbal's ‘plausibility’ requirement, which is the same
standard used to evaluate facial challenges to claims under Rule 12(b)(6)”).8
DISCUSSION
Two motions to dismiss are pending. The Union Defendants seek dismissal of the
International and Local 1433 under F ED. R. CIV. P. 12(b)(6). CP/Soo also seeks dismissal on
statute of limitations grounds and for lack of subject-matter jurisdiction under F ED. R. CIV. P.
12(b)(1).
I.

The Union Defendants’ Motion to Dismiss
The Union Defendants seek dismissal of Plaintiff’s claims against the International and

Local 1433 on the basis that they are not proper parties to this suit. They emphasize that SMARTTD has a three-tiered structure: “(1) the International, which functions as the administrative head
of the union, (2) GCAs, which are semi-autonomous mid-level bodies that are responsible for
negotiating and enforcing the respective CBAs under their jurisdiction, and (3) locals, where
membership is held.” (Union Mem. [37] at 2 (citing BNSF Ry. Co. v. Int'l Ass'n of Sheet Metal,
Air, Rail & Transp. Workers – Transp. Div., 973 F.3d 326, 332 n.3 (5th Cir. 2020) (accepting this
three-tiered framework); Gen. Comm. of Adjustment, GO-386 v. BNSF Ry. Co., 295 F.3d 1337,
1339 (D.C. Cir. 2002) (noting that GCAs are “authorized by the union constitution to deal with
grievances”).) Defendants contend that any acts or omissions constituting a DFR breach are
attributable solely to GCA 261, not the International or Local 1433. They also note that the CBA
between CP/Soo and the Union designates the “General Committee” as the Union’s “duly

By contrast, if a defendant challenges the factual basis for federal jurisdiction, the
court “may properly look beyond the jurisdictional allegations of the complaint and view whatever
evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction
exists.” Apex Digital, 572 F.3d at 444 (citations omitted). Defendant CP/Soo argues that its
challenge to subject-matter jurisdiction is not “solely facial” (CP/Soo Reply [46] at 3 n.2 (emphasis
in original), but the court explains below that the allegations in the SAC are sufficient to determine
whether this case is properly in federal court.
8

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accredited representative” (CBA at Article 3(D)), and that the General Chairperson has the
authority to appeal grievances. (See CBA at Article 28, Section 2(C), (D), (G), Section 3(B), (C);
see also SMART Constitution, Article 21B, Section 85 (discussing the duties of General
Committees of Adjustment).)
Only exclusive bargaining representatives owe a duty of fair representation to union
members. 9 See Vaca v. Sipes, 386 U.S. 171, 177, 182 (1967); Grant v. Burlington Indus., 627 F.
Supp. 311, 313 (N.D. Ill. 1985) (collecting cases); see also Janus v. Am. Fed'n of State, Cty., &
Mun. Emps., Council 31, 138 S. Ct. 2448, 2469 (2018) (observing that the “duty [of fair
representation] is a necessary concomitant of the authority that a union seeks when it chooses to
serve as the exclusive representative of all the employees in a unit”). “When an entity is neither
the bargaining representative for an employee nor a party to the collective bargaining agreement
under which the employee receives her or his rights then it clearly cannot serve as the employee's
exclusive representative and should not be subject to the fair representation duty.” Grant, 627 F.
Supp. at 313.

Because the CBA designates GCA 261 as Plaintiff’s exclusive bargaining

representative, Defendants argue, the International and Local 1433 do not owe Plaintiff a DFR
and cannot be liable for breach of DFR.
Plaintiff responds that the International, not GCA 261, is the exclusive bargaining
representative with CP/Soo because the CBA does not specifically identify “General Committee
of Adjustment GO-261” or “GCA 261” as such. (Pl.’s Opp’n to Union [44] at 3, 6.) Instead, the
CBA contains generic references to the “General Committee.” (See, e.g., CBA at Article 3(D).)

But see Chavez v. United Food & Com. Workers Int'l Union, 779 F.2d 1353, 1357
(8th Cir. 1985) (cautioning that this general statement of the law, while accurate, “does not mean
that a union may never be held to some duty of fair representation where a majority of employees
have designated the union as their bargaining agent, the union has accepted that designation and
has attempted to bargain on their behalf but has failed to represent them fairly in the process”).
Because Plaintiff has not alleged that either the International or Local 1433 falsely held itself out
as his exclusive bargaining representative, however, this exception to the general rule does not
apply. See id. at 1359 (affirming dismissal of international because there was no evidence that it
represented itself as union members’ exclusive bargaining representative).
9

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The court agrees that the CBA is not a model of clarity in this regard: The cover page of the CBA
designates the agreement as one between CP/Soo and “Its Trainmen Represented by
Transportation Division of SMART,” and the CBA states that “[t]he term ‘Union’ or ‘General
Committee’ shall mean the Transportation Division-Sheet Metal Air Rail and Transportation
(SMART-TD).” (CBA at 1; id. at Article 3(B).)
The court notes, however, that the CBA is signed by “Matt Marschinke, General
Chairperson” of GCA 261. (See id. at 52.) And the CBA goes on to say that “[t]he General
Committee of Adjustment of the SMART-TD[ ] will represent all Trainmen in the making of
contracts, rates, rules, working agreements and interpretations thereof.” (Id. at Article 28, Section
1(B).) These circumstances confirm that references to the “General Committee” are shorthand
for GCA 261, and that GCA 261 is in fact the exclusive bargaining representative. (See also CBA
at Article 3(D) (stipulating that the term “‘duly accredited representative’ . . . shall be understood
to mean the regularly constituted General Committee”).) If “General Committee” were truly
synonymous with “SMART-TD” (meaning the International), then the phrase “SMART-TD General
Committee” in Article 28, Section 1(C) would be superfluous. 10 The fact that the CBA was
“approved” by an unnamed Vice President of SMART-TD does not mean that the International,
rather than GCA 261, is the exclusive bargaining representative. See Borg v. Greyhound Lines,

Plaintiff argues that the CBA contemplates different meanings for “General
Committee” and “General Committee of Adjustment” because the latter only appears once in the
entire CBA. (Pl.’s Opp’n to Union at 7 (“[R]eferences to ‘SMART-TD’, ‘Union’, or ‘General
Committee’ do not pertain to the General Committee of Adjustment, because the document plainly
uses the actual term ‘General Committee of Adjustment’ when that is the intended reference.”).)
But Plaintiff’s reading does not explain why the drafters would have used the term “General
Committee” at all if references to “General Committee” are interchangeable with “the
International,” as he suggests. And even if “General Committee” and “General Committee of
Adjustment” have materially different meanings in the CBA, Plaintiff cannot escape the plain
language of Article 28, Section 1(B), which states that “[t]he General Committee of Adjustment
. . . will represent all Trainmen in the making of contracts, rates, rules, working agreements, and
interpretations thereof.” The absence of the word “exclusive” is immaterial (see Pl.’s Opp’n to
Union at 8), because the provision states that the GCA will represent “all Trainmen” in the
collective bargaining process. (CBA, Article 28, Section 1(B).)
10

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Inc., No. C 83-4827 RHS, 1984 WL 14332, at *3–4 (N.D. Cal. July 1, 1984) (holding that
international union did not owe a DFR to plaintiff even though the international’s vice president
signed the CBA); accord Carr v. Loc. Union 1593, Int'l Bhd. of Elec. Workers, 371 F. Supp. 2d
1097, 1104–05 (D.N.D. 2005) (holding that international union owed no DFR even though a
representative of the international took part in negotiations at which the local was the exclusive
bargaining representative).11
The court concludes that the Union Defendants’ interpretation of the CBA—that GCA 261
is the exclusive bargaining representative—is correct. 12

Because the International and

Local 1433 are not Plaintiff’s exclusive bargaining representative, they cannot be directly liable
for a breach of the duty of fair representation. As explained below, the International and Local
1433 are also not vicariously liable based on the allegations in the SAC.
A. The International
The Union Defendants argue that an international union cannot be held vicariously liable
for the acts or omissions of a subordinate body without evidence tying the international to the
disputed events. See Cleveland v. Porca Co., 38 F.3d 289, 296 (7th Cir. 1994) (concluding that
union members failed to state a fair-representation claim against an international union where
there was insufficient evidence tying the international to events surrounding the purported DFR
breach); see also Carbon Fuel Co. v. United Mine Workers, 444 U.S. 212, 217–18 (1979)
(concluding, in a case brought under the Labor Management Relations Act, that “it would be
anomalous to hold that an international is [ ] liable for its failure to take certain steps in response
The Union Defendants object that Plaintiff is improperly amending the SAC in his
opposition brief by arguing that the International approved the CBA. (See Union Defs.’ Reply [45]
at 4 n.2.) Even if Plaintiff had properly made such an allegation in the SAC, the court would still
conclude that mere approval does not indicate that the International is the exclusive bargaining
representative. See Borg, 1984 WL 14332, at *3–4.
11

12
The SMART Constitution also confirms that GCAs, not the International, bargain
with employers. (See SMART Constitution, Article 21B, Section 85 (“General Committees of
Adjustment shall have authority to make and interpret agreements with representatives of
transportation companies covering rates of pay, rules, or working conditions . . . .”).)

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to actions of the local” where there was no evidence that the international union “instigated,
supported, ratified, or encouraged” unauthorized work stoppages by local unions, because “[s]uch
a rule would pierce the shield that Congress took such care to construct”). And “boilerplate
allegations that a local union is an agent of its international, or vice versa, do not create a factual
issue as to whether the international owes a duty of fair representation.” Borg, 1984 WL 14332,
at *3 (citations omitted, emphasis in original). In the absence of evidence that the International
“instigated, supported, ratified, or encouraged” the alleged misconduct at the GCA level,
Defendants argue, the International owes no DFR to Plaintiff. Carbon Fuel, 444 U.S. at 218; see
also Grant, 627 F. Supp. at 313.
The court agrees. Based on the allegations in the SAC, the International is not vicariously
liable for GCA 261’s handling of his grievance. Plaintiff has not alleged that the International itself
handled his grievance in an arbitrary fashion. (See SAC ¶ 71 (attributing responsibility to Local
1433 and GCA 261).).

Instead, he merely asserts, upon information and belief, that the

International “knew” about then–General Chairperson Marschinke’s prior mishandling of four
union members’ grievances, but “failed to take timely action to correct or address this problem.”
(Id. ¶ 72; see ¶¶ 30, 42.) The court notes that Plaintiff has not specified whether the four other
grievances were mishandled in the same way—namely, failure to timely list a grievance for
arbitration. (See id. ¶ 30.) Regardless, mere knowledge of misconduct by a subordinate entity is
insufficient to render an international union liable.

See Carbon Fuel, 444 U.S. at 217–18.

Plaintiff’s allegation that General Chairperson Wallace communicated with at least one SMARTTD Vice President “about Plaintiff’s situation” is similarly insufficient. (SAC ¶ 43.) Not only is it
unclear when this communication occurred or whether Wallace received a response, but a single
communication does not indicate that the International “instigated, supported, ratified, or

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encouraged” Marschinke’s misfeasance. 13 Carbon Fuel, 444 U.S. at 218; see also Cleveland, 38
F.3d at 296; Grant, 627 F. Supp. at 313. And even if there were additional communications
between Wallace and the International, the SAC provides no information about the nature or
content of such communication.
Plaintiff’s attempt to evade these precedents by resort to general principles of agency
theory is unavailing. (Pl.’s Opp’n to Union at 3–4.) Courts have repeatedly considered and
rejected such arguments. See, e.g., Grant, 627 F. Supp. at 315 (rejecting plaintiff’s theory that
an agency relationship between a joint council and a local union rendered the joint council liable
in a DFR suit where the joint council played no role in the local’s alleged breach of DFR); Moore
v. Loc. Union 569 of the Int'l Bhd. of Electrical Workers, 989 F.2d 1534, 1543 (9th Cir.1993)
(concluding that “without evidence that [the International] instigated, supported, ratified or
encouraged the Local's activities or that the Local acted pursuant to its agreement with the
International, there [is] no agency relationship as a matter of law”).
The few cases that Plaintiff cites in support of his argument that the International is
vicariously liable are readily distinguishable. For example, in Alexander v. Loc. 496, Laborers'
Int'l Union, a case brought under Title VII and 42 U.S.C. § 1981, the Sixth Circuit held an
international union vicariously and directly liable for condoning intentional racial discrimination by
a local union against African Americans seeking union membership. 177 F.3d 394, 409–11 (6th
Cir. 1999). The international was vicariously liable because the challenged racial discrimination
was a product of the international’s uniform constitution for locals—in other words, there was
“specific evidence that the international ‘instigated, supported, ratified, or encouraged’ those
actions.” Id. at 409 (quoting Carbon Fuel, 444 U.S. at 217–18). The international was also directly
liable because it had an affirmative duty under Title VII and Section 1981 to end discrimination at

Plaintiff improperly attempts to supplement the SAC in his opposition brief by
suggesting that “it seems unlikely that this would have been the only such communication.” (Pl.’s
Opp’n to Union at 6.)
13

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the local level. Alexander, 177 F.3d at 409–11. No such affirmative duty exists here. Plaintiff
also cites Scott v. Graphic Commc’ns Int’l Union, Local 97-B for the proposition that courts look
to “common law agency principles” when determining the vicarious liability of an international
union for the actions of a local. 92 F. App’x 896, 904 (3d Cir. 2004). The court went on to say,
however, that “[a] principal-agent relationship may not be inferred solely from affiliation between
an international union and a local union.” Id. Indeed, the Third Circuit held that a local union was
not an agent of the international union, and “the allegation that [the international] did nothing
despite its knowledge of [the local’s] alleged discrimination and harassment is insufficient to state
a claim against the International Union.” Id. at 905–06.
At most, Plaintiff alleges that the International failed to intervene after it allegedly became
aware that Marschinke had mishandled other grievances. But “[m]ere constructive knowledge of
possible illegal activity on the local level is not sufficient to impose a legal duty to intervene on the
International Union.” Brenner v. Loc. 514, United Bhd. of Carpenters, 927 F.2d 1283, 1289 (3d
Cir.1991); see also Phelan v. Loc. 305 of United Ass’n of Journeymen, 973 F.2d 1050, 1061 (2d
Cir. 1992) (“An international union has no independent duty to intervene in the affairs of its local
chapters, even where the international has knowledge of the local's unlawful acts.”). Plaintiff cites
no case law in support of his theory that payment of dues to all three union defendants is evidence
that the International exercises significant control over GCA 261 and Local 1433 for purposes of
agency law. (See Pl.’s Opp’n to Union at 5 (citing SAC ¶ 14.)) In short, the allegations in the
SAC do not support an inference that the International owed a DFR to Plaintiff, or that the
International exercised sufficient control over GCA 261 or Local 1433 to establish an agency
relationship.
B. Local 1433
Next, the Union Defendants argue that Local 1433 is not vicariously liable for the conduct
of GCA 261 or former General Chairperson Marschinke. They note that the SMART Constitution
vests grievance handling and negotiation duties with GCAs, not locals. (See SMART Constitution,
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Article 21B, Section 85.) Plaintiff has not alleged that Local 1433 instigated, supported, ratified,
or encouraged the alleged misconduct of GCA 261 and Marschinke. See Carbon Fuel, 444 U.S.
at 217–18. Nor has he alleged that Local 1433 is a signatory to the CBA, or that Local 1433 held
itself out as employees’ exclusive bargaining representative. See Grant, 627 F. Supp. at 313;
Chavez, 779 F.2d at 1357.
Plaintiff responds that the allegations in the Complaint “point toward direct and joint and
several liability of the Local in conjunction with GCA 261” because Local 1433 shared
responsibility with GCA 261 for handling Plaintiff’s grievance. (Pl.’s Opp’n to Union at 9.) Plaintiff
cites no case law in support of this theory of liability. The SAC alleges that Local 1433 and GCA
261 “jointly shared responsibility for the prosecution and progression of Plaintiff’s grievance” (SAC
¶ 26), but Plaintiff also alleges that the Union properly pursued his grievance through the first two
stages of the grievance process. 14 (Id. ¶ 23.) It was only when Marschinke missed the deadline
to list Copeland’s grievance for arbitration that any breach of the DFR may have occurred, and
Plaintiff’s own allegations make clear that this duty rested with Marschinke. (See id. ¶¶ 27–28.)
Plaintiff also does not allege that Local 1433 knew or should have known of Marschinke’s prior
lapses. (See id. ¶ 42 (alleging that GCA 261, the International, and CP/Soo “were all aware” of
such lapses).) Accordingly, the court fails to see how Local 1433 bore any responsibility for
Marschinke’s actions, let alone how it could be liable under a theory of joint and several liability.
***
Because the court concludes that the International and Local 1433 are not liable as a
matter of law, the court grants the Union Defendants’ motion to dismiss them from this suit.

14
The Union Defendants also note that Local Committees of Adjustment (“LCAs”),
not local unions, are responsible for the initial handling of claims and grievances, which are then
referred to GCAs. (Union Defs.’ Reply [45] at 6 n.4 (citing SMART Constitution, Article 21B,
Section 81 (“Local Committees of Adjustment”).)

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II.

CP/Soo’s Motion to Dismiss
A “hybrid action” combines a DFR claim against a union and a breach of contract claim

against an employer. See DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164–65 (1983).
Because the two claims are “inextricably interdependent,” an employee must show that the union
breached its duty of fair representation in order to bring a claim against the employer. Id.; see
McLeod v. Arrow Marine Transp., Inc., 258 F.3d 608, 613 (7th Cir. 2001); Graf v. Elgin, Joliet &
Eastern Ry. Co., 697 F.2d 771, 781 (7th Cir. 1983) (“[U]nless the union has breached its [DFR],
a worker may not sue in court for breach of a [CBA].”) The Union Defendants have not sought
dismissal of Plaintiff’s DFR claim against GCA 261 in this case, so Plaintiff’s breach of contract
claim against CP/Soo remains viable if Plaintiff can satisfy the requirements for a hybrid action.
Defendant CP/Soo seeks dismissal on two grounds: first, that the SAC alleges only a “minor
dispute” under the RLA, meaning that this court lacks subject-matter jurisdiction; second, that this
suit was filed after the six-month statute of limitations for RLA claims.
A. Subject-Matter Jurisdiction
CP/Soo contends that this court lacks subject-matter jurisdiction over Plaintiff’s claim
against it for breach of the CBA because that claim is a “minor dispute,” subject to binding
arbitration. The distinction between major and minor disputes under the RLA is well recognized.
The RLA governs the relationship between management and labor in the railway industry, see 45
U.S.C. § 151 et seq., and was adopted by Congress to avoid disruptions to the nation’s
transportation network by “substitute[ing] bargaining, mediation, and arbitration for strikes.” Bhd.
of Locomotive Eng'rs (Gen. Comm. of Adjustment, Cent. Region) v. Union Pac. R.R. Co., 879
F.3d 754, 755 (7th Cir. 2018). The RLA establishes different mechanisms for resolution of labormanagement disputes. See Consol. Rail Corp. v. Ry. Labor Execs.’ Ass'n, 491 U.S. 299, 302–
03 (1989). Major disputes involve the formation of collective bargaining agreements, while minor
disputes arise out of grievances or “the interpretation or application of agreements concerning
rates of pay, rules, or working conditions.” 45 U.S.C. § 152 Sixth. The “distinguishing feature” of
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minor disputes is that they “may be conclusively resolved by interpreting the existing agreement.”
Consol. Rail, 491 U.S. at 305. Of relevance here, “[m]inor disputes are subject to compulsory
arbitration” before an adjustment board. Bhd. of Locomotive Eng'rs, 879 F.3d at 758 (citing
Consol. Rail, 491 U.S. at 303–04). A railroad bears a “relatively light burden” of persuading the
court that a dispute is subject to arbitration. Consol. Rail, 491 U.S. at 307 (citation omitted).
Plaintiff correctly observes that the Seventh Circuit has not yet applied—in the RLA
context—recent Supreme Court precedents distinguishing between jurisdictional requirements
and nonjurisdictional claim-processing rules. See Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1849
(2019); Arbaugh v. Y & H Corp., 546 U.S. 500, 510–11 (2006); Carlson v. CSX Transp., Inc., 758
F.3d 819, 831 (7th Cir. 2014) (declining to resolve “whether a party’s failure to comply with the
RLA’s arbitration provision deprives federal courts of subject matter jurisdiction rather than simply
defeat[ing] the claim”). In other words, it is not yet clear whether dismissal for failure to arbitrate
a minor dispute should be labeled as a judgment on the pleadings under F ED. R. CIV. P. 12(c), or
if federal courts lack subject-matter jurisdiction entirely. See Miller v. Sw. Airlines Co., 926 F.3d
898, 901 (7th Cir. 2019). But as another district court has observed, it makes no difference as a
practical matter because the Seventh Circuit has blessed both options for dismissing an RLA
claim. Crooms v. Sw. Airlines Co., 459 F. Supp. 3d 1041, 1051 (N.D. Ill. 2020) (citing Miller, 926
F.3d at 901). The court’s analysis below therefore applies equally to a motion under Rule 12(b)(1)
as one under Rule 12(c).
Plaintiff appears to concede that his claim against CP/Soo for breach of the CBA is a minor
dispute under the RLA. (See Pl.’s Opp’n to CP/Soo [43] at 5.) Ordinarily, that would be the end
of the matter, and this court would dismiss Count I. But courts have recognized a limited number
of exceptions where plaintiffs may bring suits based on minor disputes in federal court. 15 As
15
One such exception is when resort to administrative remedies would be futile. See
Conrad v. Delta Air Lines, Inc., 494 F.2d 914, 917 (7th Cir. 1974) (citing Glover v. St. Louis-San
Francisco Ry. Co., 393 U.S. 324, 330 (1969) (holding that futility of ordinary grievance procedure
excused plaintiffs’ failure to exhaust administrative remedies, where plaintiffs alleged that

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CP/Soo sees things, an employee bringing a hybrid claim under the RLA in federal court must
demonstrate collusion between the employer and the union, or “that the employer’s conduct
somehow contributed to the union’s breach.” Steffens v. Bhd. of Ry., Airline & S.S. Clerks, 797
F.2d 442, 445 (7th Cir. 1986) (concluding that plaintiffs sufficiently alleged collusion, but
dismissing the complaint on statute of limitations grounds); see also Hoover v. U.S. Aircrew
Officers Ass’n, No. 18 C 6601, 2019 WL 3554282, at *10 (N.D. Ill. Aug. 5, 2019) (noting, in dicta,
that some courts have allowed hybrid actions in such circumstances); Rios-O'Donnell v. Am.
Airlines, Inc., No. 10 C 6219, 2013 WL 157610, at *7 (N.D. Ill. Jan. 10, 2013) (same); Cunningham
v. United Airlines, Inc., No. 13 C 5522, 2014 WL 441610, at *5–6 (N.D. Ill. Feb. 4, 2014)
(concluding that plaintiffs’ allegations against employer did not rise to level of collusion with union),
aff'd sub nom. Cunningham v. Air Line Pilots Ass'n, Int'l, 769 F.3d 539 (7th Cir. 2014). Because
Plaintiff has not alleged collusion or that CP/Soo somehow caused the Union to miss the deadline
for his grievance, Defendant argues, he cannot maintain a hybrid claim against CP/Soo.
The court agrees that Plaintiff’s allegations that CP/Soo was “aware” of Marschinke’s prior
mishandling of grievances are insufficient to establish collusion or causation. (SAC ¶ 42). Plaintiff
attempts to equate awareness with complicity in the alleged DFR breach (see id. ¶ 51), but
CP/Soo had no duty to monitor GCA 261 to ensure that it handled grievances in a timely way.
See 45 U.S.C. § 152 Fourth (prohibiting carriers from interfering in internal union matters);
Cunningham, 2014 WL 44610, at *6 (rejecting plaintiffs’ attempt to impose “an affirmative
obligation on an employer to supervise unions”). And regardless of whether a settlement occurred
between CP/Soo and the Union on Plaintiff’s behalf (see SAC ¶¶ 39–41), settling a grievance is
insufficient to establish collusion. See Bryan v. Allied Pilots Ass’n, No. 17-cv-12460-DJC, 2018

employer and union agreed to exclude them from higher paying jobs on the basis of race). This
exception is available only when the grievance process or the arbitral board is so biased against
a plaintiff’s claim that it cannot succeed. See Cunningham v. United Airlines, Inc., No. 13 C 5522,
2014 WL 441610, at *6–7 (N.D. Ill. Feb. 4, 2014). Because Plaintiff has not alleged such facts or
invoked the futility exception in his brief, the court need not address its applicability here.
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WL 6697681, at *7–8 (D. Mass. Dec. 19, 2018) (concluding that plaintiff failed to allege collusion
where plaintiff did not allege that employer acted in bad faith by entering a global settlement
agreement).
Plaintiff responds that a different exception to the rule precluding federal jurisdiction over
minor disputes applies to his suit. In Childs v. Pa. Fed’n Bhd. of Maint. Way Emps., 831 F.2d 429
(3d Cir. 1987), a railroad employee sued his employer and his union, in part because the union
had agreed—at the employer’s request—not to introduce new evidence in support of his
grievance before an adjustment board, thereby dooming his grievance. Id. at 431–32. The Third
Circuit announced a new exception to mandatory arbitration of minor disputes “where the union
effectively eliminates this option and frustrates the federal administrative remedy, [because]
fairness to the employee and fidelity to the underlying goals of the RLA mandate that we grant
the employee a forum in federal court.” Id. at 441. The court did not conclude that Childs himself
qualified for the exception, but instead remanded the case for the district court to make that
determination. Id. at 441. The court also cautioned that the exception it recognized was “a narrow
one and cannot be interpreted as undermining the general rule of exclusive [arbitral] jurisdiction
for minor disputes.” Id. CP/Soo argues that the Childs exception has not been recognized in the
Seventh Circuit, and even if it had been, this case is factually distinguishable. 16
The court agrees that the Childs exception, if read as broadly as Plaintiff suggests, would
undermine the general rule that minor disputes do not belong in federal court. Even if this court
were to adopt an out-of-circuit exception, Plaintiff has not alleged facts suggesting that CP/Soo

According to Westlaw, the Seventh Circuit has never cited Childs, and only one
district court within the Seventh Circuit has done so, in a footnote. See United Transp. Union v.
Ill. Cent. R.R. Co., No. 97 C 7962, 1998 WL 258470, at *3 n.1 (N.D. Ill. May 14, 1998) (“Courts
have formulated exceptions to the rule granting exclusive jurisdiction over minor disputes to the
[National Railroad Adjustment] Board, but these exceptions are not implicated by the facts of this
case.”) (citing Childs, 831 F.2d at 437). Plaintiff argues that this citation means the Seventh
Circuit has “taken notice of [the exception’s] existence” (Pl.’s Opp’n to CP/Soo at 8), but as the
quoted language above makes clear, no court in this circuit has passed judgment on the validity
of the Childs exception itself.
16

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played any meaningful role in his inability to obtain relief before the PLB. In Childs, the employer
expressly conditioned an extension of time for the union to prepare for arbitration on the union’s
agreement that it would not introduce new evidence, and the union conceded that such evidence
was essential for the grievance to succeed on the merits. Childs, 831 F.2d at 431–32. Plaintiff,
by contrast, has neither alleged that CP/Soo imposed a condition that sealed the fate of his
grievance (aside from the terms of the CBA), nor that the union agreed to such a condition. The
court concludes that the exception recognized in Childs, if available at all, does not apply on these
facts. 17 Plaintiff has also not alleged collusion between CP/Soo and the Union Defendants.
Accordingly, Plaintiff cannot maintain a hybrid action, and the court grants CP/Soo’s motion to
dismiss Count I.
B. Statute of Limitations
Because the court concludes that Plaintiff’s claim against CP/Soo fails on the merits, it
need not reach CP/Soo’s alternative argument that Plaintiff’s suit is time barred. See United
Indep. Flight Officers, Inc. v. United Air Lines, Inc., 756 F.2d 1262, 1269–70 (7th Cir. 1985)
(concluding that a six-month statute of limitations applies to breach of DFR claims under the RLA);
Christiansen v. APV Crepaco, Inc., 178 F.3d 910, 914 (7th Cir. 1999) (holding that the statute of
limitations starts to run when an employee knows, or through reasonable diligence should have
known, of union’s actions constituting the alleged DFR breach). The court notes, however, that it
is not clear that a timeliness challenge can doom this case at the Rule 12(b)(6) stage. See, e.g.,
Thornton v. Hamilton Sundstrand Corp., 2012 WL 1966022, at *3–4 (N.D. Ill. May 31, 2012) (St.
Eve., J.) (denying motion to dismiss on basis of the statute of limitations because the motion
raised factual questions that could not be resolved at the pleading stage); Gosselin v. First Trust

With respect, this court is uncertain that the exception recognized in Childs was
necessary for a just result. It appears that the employee’s claim would have failed regardless of
any agreement between the employer and the union because the adjustment board’s own rules
prohibited consideration of evidence that had not been submitted to the employer prior to
arbitration. See Childs, 831 F.2d at 431–32.
17

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Advisers L.P., 2009 WL 5064295, at *8–9 (N.D. Ill. Dec. 17, 2009) (denying motion to dismiss on
basis of the statute of limitations where defendants’ characterization of plaintiffs’ knowledge
sought to contradict allegations in the complaint).
Without the benefit of discovery, this court cannot determine when Plaintiff had the
requisite knowledge to trigger the statute of limitations. Specifically, the SAC alleges that the
Union timely pursued Plaintiff’s grievance through the first two stages of the process outlined in
the CBA, with no indication that the Union had decided not to list his grievance for arbitration, and
that Plaintiff had repeatedly requested status updates but was assured the grievance was
proceeding on schedule. (SAC ¶¶ 21–23, 45–46.) A reasonable person in Plaintiff’s position may
not have realized that Marschinke missed the deadline to list his grievance for arbitration by eight
months (see id. ¶¶ 28–29), particularly where almost twelve months elapsed between the time
that Marschinke ultimately listed the grievance for arbitration and the date of the PLB’s decision.
(Id. ¶ 36.) Because CP/Soo’s motion is being granted on other grounds, the court declines to
comment further on the timeliness objection.
CONCLUSION
For the foregoing reasons, the Union Defendants’ motion to dismiss [36] is granted, as is
Defendant CP/Soo’s motion to dismiss [38]. Defendant GCA 261 shall file an Answer to the
Second Amended Complaint within 14 days.
ENTER:

Dated: September 7, 2021

_________________________________________
REBECCA R. PALLMEYER
United States District Judge

20