Case No. 8:03CV1.
March 16, 2004
MEMORANDUM AND ORDER
This matter is before the Court on the cross-Motions for Summary Judgment filed by the Respondent, United Transportation Union (hereafter "UTU") (Filing No. 11) and the Petitioner, Union Pacific Railroad Company (hereafter "UP") (Filing No. 13). The parties submitted briefs (Filing Nos. 12, 15, 17 and 21) and indexes of evidence (Filing Nos. 27, 28 and 29) in support of their respective motions and in opposition to each other's motions. For the reasons stated below, both motions will be denied.
UP is a common carrier by rail under the Interstate Commerce Act, 49 U.S.C. § 10101 et seq., and a carrier within the meaning of the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et seq. (Petition (Filing No. 1) ¶ 3; Answer (Filing No. 4) ¶ 3.) UTU is the collective bargaining representative for UP's train service employees. (Petition ¶ 4; Answer ¶ 4.)
John B. Reome was employed by UP in 2001 as a "hostler," and was subject to the requirements for locomotive engineer certification under 49 C.F.R. pt. 240, including visual acuity requirements, such as the requirement that he be able to recognize and distinguish between colors of railroad signals. (Petition ¶ 5; Answer ¶ 5; Decl. of R.P. Guidry ("Guidry Decl."), Filing No. 29, ¶ 4; 49 C.F.R. § 240.121.) Reome's vision was clinically tested on February 21, 2001, because his certification was scheduled to expire on February 22, 2001. (Petition ¶ 8-9; Answer ¶ 8-9.) Reome's vision test indicated possible color vision deficiency. (Guidry Decl., Ex. B ("UP's Public Law Board submission") Ex. a, at 47-50.) On March 13, 2001, Reome was given a field color vision test, and he had difficulty focusing. ( Id. at 46.) On March 14, 2001, Reome obtained a new prescription for his eyeglasses to restore his vision to 20/20. ( Id. at 45.)
Reome was removed from service for passing a red signal without authority and running through a power switch on March 17, 2001. (Guidry Decl. ¶ 3.) Reome's color vision was clinically tested again on March 20, 2001, and a visual color deficiency was confirmed. (UP's Public Law Board submission, Ex. "a," at 44.) Reome received a second field color vision test on March 21, 2001, which he also failed. ( Id. at 43.) By letter dated March 29, 2001, UP notified Reome that he lacked medical clearance to work. ( Id. at 40; Petition ¶ 18; Answer ¶ 18.) On April 10, 2001, Reome requested and received a battery of color vision tests conducted by Dr. Paul Pease, the Director of Color Vision Service at the University of Houston's College of Optometry. (UP's Public Law Board submission, Ex. "a," at 30-36.) By letter dated April 11, 2001, Reome was advised that the tests indicated a strong red/green and protan (red) color deficiency. Dr. Pease noted that Reome's color deficiency was probably inherited and would not change with age. Dr. Pease also noted that it was possible that color-correcting lenses would improve Reome's color-naming ability and recommended the addition of a red tint to his prescription eyeglasses. ( Id. at 29.)
By letter dated April 25, 2001, UP's General Superintendent advised Reome that he remained medically disqualified from any position that required color vision and that UP medical rules prohibited the use of color-correcting lenses. ( Id. at 27.) By letter dated May 16, 2001, UTU asked UP to give Reome another color vision test. ( Id. at 26.) UP denied the request by letter dated June 5, 2001. ( Id. at 25.) UTU renewed its request by letter dated June 6, 2001. ( Id. at 24.) UP again denied the request by letter dated June 8, 2001. ( Id. at 23.) By letter dated June 15, 2001, UP notified Reome that there was no reasonable accommodation that would permit him to return to his former position with UP or any other position in the train service craft. UP did advise Reome of several vacant positions that he might be eligible to hold. The record implies that Reome was continuously employed by UP. ( Id. at 18-20.)
By letter dated March 6, 2002, UTU submitted a claim on behalf of Reome, asking that he be restored to train service with all benefits, and that he be compensated for any loss of earnings from the time of his removal from engine service until restored to train service. UTU asked that the claim be added to the docket of the Public Law Board. ( Id. at 13.) The Public Law Board was established by agreement between UP and UTU for the purpose of resolving claims or grievances arising out of the interpretation or application of agreements between UP and UTU governing rates of pay, rules or working conditions that might otherwise be referred to the National Railroad Adjustment Board. (Guidry Decl., Ex. A, ¶ (F); 45 U.S.C. § 153 Second.)
UP and UTU are parties to a collective bargaining agreement, which requires that appeals from decisions of the Superintendent be taken to the Director of Labor Relations within ninety days from the date of receipt of the Superintendent's letter declining to restore an employee to service. (Guidry Decl. ¶ 24.) Guidry, serving as UP's Director of Labor Relations, initially declined to place Reome's claim on the docket of the Public Law Board, noting that: 1) the claim was barred by contractual time limits; 2) UTU failed to refer to any contractual provision, rule, or practice in support of the claim; and 3) the Public Law Board lacked jurisdiction over claims related to locomotive engineer certification. (UP's Public Law Board submission, at 5-10.) UTU renewed its request to have Reome's claim added to the docket of cases to be heard by the Public Law Board, and UP ultimately agreed to add the claim to the docket of cases to be heard by the Public Law Board while preserving its jurisdictional and procedural objections to the claim. (Guidry Decl. ¶ 28.)
The Public Law Board, composed of one labor member, one carrier member, and one neutral member (Francis X. Quinn), heard Reome's claim on September 30, 2002. (Guidry Decl. ¶¶ 30, 33.) Quinn rendered a proposed award on October 15, 2002, joined in by the labor member but not the carrier member. (Guidry Decl., Exhibit C; Filing No. 27, Ex. A.) The award directed that Reome be retested and re-evaluated by UP in light of "new technology for correction of color vision deficiencies" and ordered that Reome be compensated for all lost earnings and be restored his seniority and vacation rights. (Guidry Decl., Ex. C.)
UP petitioned this Court for review of the Public Law Board award (Petition, Filing No. 1), and UTU counterclaimed for enforcement of the award (Answer and Counterclaim, Filing No. 4). Both UP and UTU have moved for summary judgment.
STANDARD OF REVIEW
With respect to summary judgment, the Court must examine the record in the light most favorable to the nonmoving party. U.S. ex rel. Quirk v. Madonna Towers, Inc., 278 F.3d 765, 767 (8th Cir. 2002). However, summary judgment is "properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
The proponent of a motion for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323 (quoting Fed.R.Civ.P. 56(c)). The proponent need not, however, negate the opponent's claims or defenses. Id. at 324-25.
In response to the proponent's showing, the opponent's burden is to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (quoting Fed.R.Civ.P. 56(e)). A "genuine" issue of material fact is more than "some metaphysical doubt as to the material facts." Id.
The Court's function is not to weigh the credibility and persuasiveness of evidence in the context of a motion for summary judgment. Kampouris v. St. Louis Symphony Soc'y, 210 F.3d 845, 847 (8th Cir. 2000). Nevertheless, if testimony has been irrefutably contradicted by documentary evidence, or the testimony is otherwise inherently incredible, it need not be credited even for purposes of a motion for summary judgment. Walker v. Peters, 863 F. Supp. 671, 672-73 (N.D. Ill. 1994).
Both UP and UTU agree that this Court's review of the Public Law Board's award is governed by 45 U.S.C. § 153 First (p) and (q). (UTU brief, Filing No. 12, at 12-13; UP brief, Filing No. 15, at 13.) Those statutory subsections provide in part:
(p) . . . The district courts are empowered, under the rules of the court governing actions at law, to make such order and enter such judgment, by writ of mandamus or otherwise, as may be appropriate to enforce or set aside the order of the division of the Adjustment Board: Provided, however, That such order may not be set aside except for failure of the division to comply with the requirements of this chapter, for failure of the order to conform, or confine itself, to matters within the scope of the division's jurisdiction, or for fraud or corruption by a member of the division making the order.
(q) . . . The court shall have jurisdiction to affirm the order of the division, or to set it aside, in whole or in part, or it may remand the proceedings to the division for such further action as it may direct. On such review, the findings and order of the division shall be conclusive on the parties, except that the order of the division may be set aside, in whole or in part, or remanded to the division, for failure of the division to comply with the requirements of this chapter, for failure of the order to conform, or confine itself, to the matters within the scope of the division's jurisdiction, or for fraud or corruption by a member of the division making the order.45 U.S.C. § 153 First (p) (q).
The award of the Public Law Board is subject to judicial review and "may be set aside on three grounds only: (1) the Board's failure to comply with the provisions of the Railway Labor Act; (2) failure of the order to confine itself to matters within the scope of its jurisdiction; or (3) fraud or corruption." Bhd. of Maint. of Way Employees v. Soo Line R.R., 266 F.3d 907, 909-10 (8th Cir. 2001) (citing 45 U.S.C. § 153 First (q)). This Court's analysis of UTU's Motion for Summary Judgment on its counterclaim, seeking enforcement of the award under 45 U.S.C. § 153 First (p), and UP's Motion for Summary Judgment, asking that the award be set aside under 45 U.S.C. § 153 First (q), is governed by the same three inquiries: (1) Did the Board comply with the provisions of the Railway Labor Act? (2) Did the Board's award confine itself to matters within the scope of its jurisdiction? and (3) Was the Board's award the product of fraud or corruption? Allegations of fraud or corruption are not made, and so the Court's analysis will focus on the first two inquiries.
UTU's Motion for Summary Judgment
UTU acknowledges that UP and UTU are parties to a collective bargaining agreement applicable to the dispute that gives rise to this case (Answer ¶ 33), and that the agreement requires that appeals from a decision of the Superintendent be taken to the Director of Labor Relations within ninety days from the date of receipt of the Superintendent's letter declining to restore an employee to service. (UTU brief, Filing No. 12, at 9-10.) UTU contends, however, that the ninety-day limitation is inapplicable because UP Director of Labor Relations Randy P. Guidry waived the time limitation at the Public Law Board hearing. ( Id. at 17.) In support of this argument, UTU refers to paragraph 6 of the Declaration of G.D. Gibson ("Gibson Decl.") and paragraph 3 of the Declaration of Larry L. Overton, both at Filing No. 27. (UTU brief, Filing No. 12, at 17-18.) Guidry denies having waived the contractual time limitation. (Guidry Decl. ¶¶ 24, 27-28, 37, 41.) Although no transcript of proceedings of the Public Law Board is before this Court, and the Board did not address the contractual time limitation issue in its opinion, the materials submitted to the Public Law Board on behalf of UP support UP's and Guidry's position that there was no waiver of the contractual time limitation. (UP's Public Law Board submission, pp. 2, 5-6.)
UTU also asserts that whether or not the time limitation was waived by UP, the collective bargaining agreement also provides that "[i]f a disallowed claim is not appealed within the time limits . . . the matter shall be considered closed, but this shall not be considered as a precedent or waiver of the contentions of the employees as to other similar claims." (Gibson Decl. ¶ 6.) UTU argues that Reome's claim was of an ongoing nature and the appeal was, therefore, timely.
While Reome may have been free to re-submit his request for color-vision testing at any time, and to take a timely appeal from a denial of such a request, that fact does not validate an untimely appeal of the General Superintendent's decision of April 25, 2001. At the very latest, the ninety-day limitation period for filing an appeal on behalf of Reome began to run when Reome received UP's letter of June 15, 2001, notifying him that no reasonable accommodation existed that would allow him to return to his former position with UP. Under any interpretation of the facts, Reome's appeal was filed months after the expiration of the ninety-day contractual limitations period. The application of the limitations period in this case is particularly significant in light of the relief sought by Reome and granted by the Board, which included compensation "for all loss of earnings while held improperly from service, including restoration of his seniority and vacation rights." (Guidry Decl., Ex. C, at 2.)
At a minimum, a genuine issue of material fact exists as to whether UP waived the contractual time limitation for the filing of a claim. There is an issue, therefore, as to whether the Board's award conformed or confined itself to matters within the scope of the Board's jurisdiction. That issue precludes the granting of summary judgment in favor of UTU on its counterclaim under 45 U.S.C. § 153 First (p).
UP's Motion for Summary Judgment
UP asks the Court to set aside the order of the Public Law Board because: 1) Reome's claim was not filed within the ninety-day time limitation specified in the collective bargaining agreement; 2) Reome's claim was not based on the collective bargaining agreement between UP and UTU, nor on any alleged violation of a rule or practice, and the Board therefore lacked jurisdiction to hear the claim; 3) the Board's award violated the agreement between UP and UTU establishing the Board and therefore violated 45 U.S.C. § 153 Second; and 4) the Board's award addressed an issue governed by the locomotive engineer certification regulations promulgated by the Federal Railroad Administration ("FRA") and was therefore outside the Board's jurisdiction. UP argues that the Board, therefore, failed to conform and confine itself to matters within the scope of its jurisdiction and failed to comply with the requirements of the RLA.
A court's review of an arbitration award is "among the narrowest known to the law." Bhd. of Maint. of Way Employees v. Terminal R.R. Ass'n, 307 F.3d 737, 739 (8th Cir. 2002). The principal argument for setting aside an arbitration award is the alleged failure of the board to confine itself to matters within the scope of its jurisdiction. The jurisdiction of the board is determined by the arbitration agreement. An award should be vacated if the board ignores the plain language of the agreement and exceeds its jurisdiction, but the board has the power to interpret ambiguous language in contract provisions. Id. at 739-40. First, as noted above, a genuine issue of material fact exists as to whether UP waived the ninety-day contractual time limitation for the filing of Reome's appeal. UP's Motion for Summary Judgment will not be granted on that basis.
Second, UP argues that Reome's claim was not based on the collective bargaining agreement, nor on any alleged UP violation of a rule or practice, and therefore the Board lacked jurisdiction over the claim. The only agreement between UP and UTU in the record before this Court is the agreement of April 7, 2000, establishing the Public Law Board. (Guidry Decl., Ex. A.) UTU acknowledges that no specific provision of the collective bargaining agreement was cited in connection with Reome's claim, but asserts that several clauses of the agreement are broad enough to provide a basis for the Board's jurisdiction under the agreement. (UTU's Brief in Opposition to UP's Motion for Summary Judgment, Filing No. 17, at 6-7.). UP has not met its burden of showing that no genuine issue exists as to any material fact regarding the Board's jurisdiction over Reome's claim under the collective bargaining agreement.
Third, UP argues that the Board's award violated the agreement establishing the Board (Guidry Decl., Ex. A), and therefore violated the RLA, which requires that such a board may consider cases as "shall be defined in the agreement establishing it." 45 U.S.C. § 153 Second. UP notes that the agreement establishing the Board provides that the "Board shall not have jurisdiction of disputes growing out of requests for changes in rates of pay, rules or working conditions nor have authority to change existing Agreements or establish new rules." (Guidry Decl., Ex. A, at 2.) UP argues that the Board's award effectively establishes a new rule by vacating UP's own medical rules. UTU counters that any such medical rules are unilaterally adopted by UP and that the collective bargaining agreement between UP and UTU merely requires that the employee "must be able to physically perform the essential functions of the specific job assigned," as stated in the Board's award. (Guidry Decl., Ex. C, at 1.) As noted, the collective bargaining agreement is not before the Court. UP has not met its burden of showing that there is no genuine issue as to any material fact with respect to whether the Board's award was in violation of the agreement establishing the Board, and, therefore, in violation of the RLA.
Fourth, UP argues that the Board's award violates FRA regulations governing color-vision testing of employees who are required to maintain locomotive engineer certification, found at 49 C.F.R. Pt.240, Appendix F (Medical Standards Guidelines). UP notes, and UTU agrees, that the FRA protocols prohibit the use of chromatic lenses during an initial color-vision test. UP contends that any subsequent testing is in the sole discretion of the railroad's medical examiner, and so Roeme has no right to use chromatic lenses during any color-vision testing. The applicable regulation reads as follows:
(c) Except as provided in paragraph (e), each person shall have visual acuity that meets or exceeds the following thresholds:
. . . .
(3) The ability to recognize and distinguish between the colors of railroad signals as demonstrated by successfully completing one of the tests in appendix F to this part.
. . . .
(e) A person not meeting the thresholds in paragraphs (c) and (d) of this section shall, upon request, be subject to further medical evaluation by a railroad's medical examiner to determine that person's ability to safely operate a locomotive. In accordance with the guidance prescribed in appendix F to this part, a person is entitled to one retest without making any showing and to another retest if the person provides evidence substantiating that circumstances have changed since the last test to the extent that the person could now arguably operate a locomotive or train safely. . . . If, after consultation with one of the railroad's designated supervisors of locomotive engineers, the medical examiner concludes that, despite not meeting the threshold(s) in paragraphs (c) and (d) of this section, the person has the ability to safely operate a locomotive, the person may be certified as a locomotive engineer and such certification conditioned on any special restrictions the medical examiner determines in writing to be necessary.49 C.F.R. § 240.121.
The appendix provides:
(3) . . . No person shall be allowed to wear chromatic lenses during an initial test of the person's color vision; the initial test is one conducted in accordance with one of the accepted tests in the chart and § 240.121(c)(3).
(4) An examinee who fails to meet the criteria in the chart, may be further evaluated as determined by the railroad's medical examiner. Ophthalmologic referral, field testing, or other practical color testing may be utilized depending on the experience of the examinee. The railroad's medical examiner will review all pertinent information and, under some circumstances, may restrict an examinee who does not meet the criteria from operating the train at night, during adverse weather conditions or under other circumstances. The intent of § 240.121(e) is not to provide an examinee with the right to make an infinite number of requests for further evaluation, but to provide an examinee with at least one opportunity to prove that a hearing or vision test failure does not mean the examinee cannot safely operate a locomotive or train. Appropriate further medical evaluation could include providing another approved scientific screening test or a field test. All railroads should retain the discretion to limit the number of retests that an examinee can request but any cap placed on the number of retests should not limit retesting when changed circumstances would make such retesting appropriate. Changed circumstances would most likely occur if the examinee's medical condition has improved in some way or if technology has advanced to the extent that it arguably could compensate for a hearing or vision deficiency.49 C.F.R. pt. 240, app. F.
This Court cannot conclude that the Board's award is in violation of the FRA standards, or that a railroad has the unfettered discretion to deny an employee's request for retesting of color vision after the initial test. It is apparent that the Board concluded that technology may have advanced to the extent that it could arguably compensate for Roeme's color vision deficiency, and that the spirit, if not the letter, of the above regulations warranted retesting of his color vision to determine the validity of that premise. UP's Motion for Summary Judgment will not be granted under the theory that the Board's award violated FRA standards.
The motions for summary judgment submitted by UTU (Filing No. 11) and UP (Filing No. 13) will be denied. This matter will proceed to a bench trial. To resolve the issues remaining in this case, the Court anticipates the need for: 1) testimony or other evidence on the question of whether UP waived the ninety-day contractual limitations period for the submission of Roeme's appeal, so the Court can weigh the credibility of what now appear to be conflicting statements of the parties' witnesses, and 2) the introduction of the full record of proceedings before the Public Law Board in this matter, which, in addition to the Carrier's Submission should at a minimum include a copy of the collective bargaining agreement.
IT IS ORDERED:
1. The Motion for Summary Judgment submitted by the Respondent, United Transportation Union, (Filing No. 11) is denied;
2. The Motion for Summary Judgment submitted by the Petitioner, Union Pacific Railroad Company, (Filing No. 13) is denied; and
3. This case shall be progressed as described in the conclusion of this Memorandum and Order.