In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1897
BROTHERHOOD OF LOCOMOTIVE
ENGINEERS AND TRAINMEN,
Plaintiff-Appellant,
v.
UNION PACIFIC RAILROAD COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:16-cv-07233 — John Robert Blakey, Judge.
____________________
ARGUED MARCH 28, 2018 — DECIDED SEPTEMBER 25, 2018
____________________
Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Union Pacific Railroad Company
hired Richard Griff in the mid-1980s. Griff was promoted
from locomotive engineer to management over the next
several years, only to be fired in 2013 when the railroad
discovered that he had falsified safety and training docu-
mentation. Griff objected to his termination on procedural
grounds, arguing that he was entitled to a hearing under a
2 No. 17-1897
collective-bargaining agreement between Union Pacific and
his union, the Brotherhood of Locomotive Engineers and
Trainmen. The railroad responded that the agreement did
not provide a hearing for supervisory employees like Griff.
The Brotherhood submitted Griff’s grievance to the
National Railroad Adjustment Board, see 45 U.S.C. § 153
First (i), and the Board denied the claim. It explained that it
had already resolved similar disputes between the parties
and that nothing in the specific collective-bargaining agree-
ment required a different outcome. Like Union Pacific, the
Board concluded that Griff was not entitled to a pretermina-
tion hearing because he was a supervisory employee.
Undeterred, the Brotherhood appealed the Board’s deci-
sion to the federal district court. See id. § 153 First (q). Chal-
lenging an arbitral award of the Adjustment Board is
famously difficult. The Railway Labor Act states that
the findings and order of the division shall be
conclusive on the parties, except … for failure
of the division to comply with the require-
ments 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.
Id. The Brotherhood alleged several statutory and jurisdic-
tional defects, in addition to a due-process claim under the
Fifth Amendment to the U.S. Constitution. The judge denied
the claims and entered summary judgment for Union Pacific.
The Brotherhood now appeals, and Union Pacific has
moved for sanctions under Rule 38 of the Federal Rules of
No. 17-1897 3
Appellate Procedure. We affirm and grant the motion for
sanctions. The Brotherhood’s arguments are facially untena-
ble and fly in the face of clear precedent. The Board had
authority to decide this dispute and properly did so.
I. Background
Union Pacific hired Griff as an operating-craft employee
in 1984. Eventually Griff became a locomotive engineer, and
as such, his employment was governed by a collective-
bargaining agreement between the railroad and his union,
the Brotherhood of Locomotive Engineers and Trainmen.
This appeal involves two of the agreement’s provisions.
The discipline rule states that “[l]ocomotive engineers will
not be disciplined without first being given a fair and impar-
tial investigation.” The rule prescribes a predeprivation
hearing with several guarantees: notice of the charges, a
right to representation, an opportunity to cross-examine
witnesses, and a written decision by the railroad. Next,
Article 9 allows engineers that are promoted to supervisory
positions to accumulate “seniority” if they continue to pay
dues to the union. As holders of seniority rights, the newly
minted supervisors retain the option to leave their manage-
rial posts and return to work as engineers.
Union Pacific promoted Griff to Manager of Operating
Practices in December 2005, followed by a second promotion
to Manager of Road Operations in September 2011. Griff
elected to accrue seniority as an engineer and accordingly
continued to pay dues to the Brotherhood. Union Pacific
then fired Griff in February 2013 after discovering that he
had “falsified safety and training-related documentation [to]
substantiat[e] his evaluations of subordinate employees.”
4 No. 17-1897
The parties agree that Union Pacific was permitted to fire
Griff from his supervisory role at will and without a disci-
plinary hearing because managerial posts are not covered by
the collective-bargaining agreement. By its own terms, the
discipline rule applies only to “locomotive engineers.”
The crux of this case centers on what happened next.
Along with the termination notice, Union Pacific informed
Griff that he could not exercise his seniority rights and
return to his job as an engineer. Griff objected and argued
that Article 9 operates posttermination, meaning he could
return as an engineer whenever he wished. Then having
made that election, Griff claimed that the discipline rule
guaranteed a hearing before Union Pacific could fire him
outright. The railroad disagreed; it insisted that Article 9
allows promoted engineers to return to their prior jobs only
if they exercise their seniority before being fired from a
supervisory position. Otherwise termination eliminates
seniority rights along with the managerial post. Accordingly,
Union Pacific concluded that Griff was not entitled to a
hearing because once fired from management, he no longer
had rights as an engineer.
The Brotherhood petitioned the First Division of the
National Railroad Adjustment Board to decide the case by
binding arbitration. See § 153 First (i). The union’s only
argument was that Article 9 entitled Griff to a pretermina-
tion hearing. The Board disagreed and adopted Union
Pacific’s interpretation. It explained that the parties had
litigated this issue several times before with the same result:
A managerial employee cannot exercise seniority rights
posttermination because once “[t]he employee relationship
[is] … irrevocably ended for cause, there is no longer any
No. 17-1897 5
valid basis upon which the employee’s seniority can oper-
ate.” The Board then explained that this remained true
under Article 9 because the provision “makes absolutely no
reference to a promoted employee being able to exercise
seniority in the face of termination from a management
position for cause.” In sum, the Board concluded that Griff
was not entitled to a hearing because Article 9 did not
change the default rule—termination eliminates any seniori-
ty rights that supervisors enjoyed as engineers.
The Brotherhood strongly objected to this line of reason-
ing because it allows unscrupulous employers to promote
and then immediately fire engineers in order to skirt the
discipline rule. The Board appreciated the concern and
interpreted the collective-bargaining agreement to protect
against this risk. Recognizing that termination for cause had
always been part of the rationale for denying seniority rights
to fired managers, the Board concluded that railroads “can-
not fire a management employee with Article 9 rights with-
out articulating a good faith basis as to why it has cause to
do so.” The Board found that Union Pacific met the good-
faith standard in Griff’s case because the railroad said it fired
him due to his dishonest conduct. Then the Board denied
Griff’s claim and declined an award in his favor.
Battered but not beaten, the Brotherhood took Griff’s case
to federal court. The union set itself up for a tough fight—
federal courts lack jurisdiction to question the Board’s
interpretation of a collective-bargaining agreement. See Hill
v. Norfolk & W. Ry. Co., 814 F.2d 1192, 1194–95 (7th Cir. 1987).
A court may set aside an arbitral award only for: “(1) failure
of the Adjustment Board to comply with the requirements of
the Railway Labor Act; (2) failure of the Adjustment Board to
6 No. 17-1897
conform, or confine, itself to matters within the scope of its
jurisdiction; and (3) fraud or corruption.” Union Pac. R.R. Co.
v. Sheehan, 439 U.S. 89, 93 (1978) (citing § 153 First (q)). This
circuit has also held that plaintiffs can challenge an arbitral
award under the due-process clause of the Fifth Amendment
to the U.S. Constitution. See, e.g., Bhd. of Locomotive Eng’rs &
Trainmen Gen. Comm. of Adjustment, Cent. Region v. Union Pac.
R.R. Co., 522 F.3d 746, 750 (7th Cir. 2008).
In the district court, the Brotherhood raised several juris-
dictional defects, a due-process claim, and a handful of
Railway Act violations. The judge rejected them all and
entered summary judgment for the railroad. The Brother-
hood now renews several of its challenges on appeal, and
Union Pacific has moved for sanctions under Rule 38 of the
Federal Rules of Appellate Procedure.
II. Discussion
Our review of a summary judgment is de novo. Knopick
v. Jayco, Inc., 895 F.3d 525, 528 (7th Cir. 2018). We discuss
each of the Brotherhood’s challenges to the arbitral award
and then turn to Union Pacific’s motion for sanctions.
A. Jurisdiction
There is no basis to question the Board’s authority to de-
cide this case. The First Division has “jurisdiction over
disputes involving train- and yard-service employees of
carriers; that is, engineers, firemen, hostlers, and outside
hostler helpers, conductors, trainmen, and yard-service
employees.” 45 U.S.C. § 153 First (h). That’s precisely the
kind of case the parties presented. The Brotherhood argued
that Griff was an engineer owed a hearing before Union
Pacific could fire him outright. The railroad responded that
No. 17-1897 7
Griff had no rights as an engineer—in effect, that he was not
an engineer at all—and accordingly had no right to a hear-
ing. Thus the dispute lay at the heart of the Board’s jurisdic-
tion: whether a putative engineer had certain guarantees
under a collective-bargaining agreement with a railroad.
The Brotherhood’s arguments to the contrary border on
absurd. Its principal claim is that the Board lacked authority
to conclude that Griff was not an engineer because its juris-
diction extends only to “disputes involving … engineers.” Id.
(emphasis added). In other words, the Board supposedly
had the power to declare Griff the winner but not the loser.
This fantastical vision of jurisdiction is obviously incor-
rect; we don’t play a game of Heads I win, Tails you lose.
Adjudicators determine whether the allegations sustain an
exercise of jurisdiction at the outset of the case. See Apex
Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443–44 (7th
Cir. 2009). Then they declare the parties’ rights and order
remedies as the law requires. For example, a lawsuit under
the federal diversity jurisdiction requires an amount in
controversy greater than $75,000, but the court does not lose
jurisdiction when it adjudicates the claim and concludes that
the plaintiff is entitled to nothing or less than that amount.
See 28 U.S.C. § 1332(a). The same principle applies here. Griff
claimed to be an engineer under the collective-bargaining
agreement and thereby triggered the Board’s jurisdiction.
While the Board read the agreement differently, the result is
that Griff loses the case, not that the Board loses authority to
decide it.
Our caselaw has uniformly taken this approach. Time
and again we have held that “[a]rbitral boards established
pursuant to the Railway Labor Act have exclusive jurisdic-
8 No. 17-1897
tion to resolve disputes over the application of collective
bargaining agreements in the railroad and airline indus-
tries.” Tice v. Am. Airlines, Inc., 288 F.3d 313, 314 (7th Cir.
2002) (emphasis added); see also Sheehan, 439 U.S. at 94
(noting the Board’s exclusive jurisdiction over “disputes
arising out of the interpretation of collective-bargaining
agreements”). That’s essentially what this case is about: The
Brotherhood claims Griff is protected by the agreement
because he’s an engineer, and Union Pacific argues that he
isn’t. The legal question thus centers on whether or not a
term in a collective-bargaining agreement applies to a par-
ticular claimant. The Board plainly has jurisdiction to decide
that question in either direction.
The Brotherhood proposes another jurisdictional defect.
It argues that the Board had no authority to impose the
good-faith requirement because the rule governs how rail-
roads manage supervisory employees beyond the scope of
its jurisdiction. From the outset we are puzzled by the goal
of this claim. The Brotherhood appears to contend that the
Board had no authority to protect Griff from baseless termi-
nation. So even if we found this specific jurisdictional infir-
mity, it would redound only to Griff’s detriment. Union
Pacific would be free to fire managers for any or no reason.
Nonetheless, on the merits this claim has nothing to it.
The Board concluded that Article 9 required Union Pacific to
articulate a good-faith basis before terminating supervisory
employees with seniority rights. Therefore the Board’s
decision applied a collective-bargaining agreement to confer
rights on a disputed beneficiary. That lies squarely within
the Board’s jurisdiction for the reasons we’ve already dis-
cussed. Moreover, it’s also the kind of dispute the Brother-
No. 17-1897 9
hood wants the Board to resolve. Again, the Brotherhood
argues that Article 9 entitles Griff to a full pretermination
hearing. If the Board has jurisdiction to say that, it also has
jurisdiction to conclude that Griff is entitled to less.
Finally, the Brotherhood argues that the Board exceeded
its jurisdiction because it failed to “interpret the collective
bargaining contract” and instead “resolved the parties’
disputes according to … private notions of justice.” Bhd. of
Locomotive Eng’rs v. Atchison, Topeka & Santa Fe Ry. Co.,
768 F.2d 914, 922 (7th Cir. 1985). This contention is self-
evidently mistaken. In its decision the Board noted that it
had already interpreted similar contract language and
concluded that managers could not exercise their seniority
rights after they’d been fired. See United Steelworkers of Am. v.
Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960) (permitting
arbitrators to rely on “the practices of the industry” when
interpreting a collective-bargaining agreement). Then it
discussed why this remained true under Article 9. The Board
explained that the provision “makes absolutely no reference
to a promoted employee being able to exercise seniority in
the face of termination from a management position for
cause.” This is an unequivocal interpretation of the agree-
ment, and as such we are bound by it. Any argument other-
wise flatly ignores what the Board did in this case.
B. Due Process
“[T]he requirements of due process are relaxed when the
tribunal is an arbitral tribunal rather than a court.” Bhd. of
Locomotive Eng’rs & Trainmen, 522 F.3d at 751 (internal
quotation marks omitted). The arbitrator must provide
“adequate notice, a hearing on the evidence and an impartial
decision.” Int’l Bhd. of Elec. Workers v. CSX Transp., Inc.,
10 No. 17-1897
446 F.3d 714, 720 (7th Cir. 2006). The Brotherhood challenges
only the second of these requirements. It contends that the
Board had no evidence from which to conclude that Union
Pacific’s stated reason for firing Griff was offered in good
faith.
This argument is wrong on the facts and inconceivable
otherwise. Union Pacific explained to Griff why it fired him
in early April 2013, and it did so again in its filings before the
Board. The Brotherhood repeatedly declined to challenge the
basis for Griff’s termination and instead presented a pure
question of contract interpretation. As a result there was
plenty of evidence to justify the Board’s conclusion: Union
Pacific presented a reason for firing Griff, and the Brother-
hood did not dispute it. Now several years later the Brother-
hood cannot manufacture a due-process problem by
contesting anew a factual issue it already laid to rest.
Reaching a different conclusion would also endorse an
inconceivable state of affairs. The crux of the Brotherhood’s
claim is that the Board should question Union Pacific’s
candor without any reason to think it has acted in bad faith.
That’s entirely backward. Adjudicators are entitled to as-
sume that the parties present their positions in good faith
and with sufficient support. This is why federal courts have
Rule 11 of the Federal Rules of Civil Procedure. By filing
their case before the court, the litigants or their counsel
promise that they have not brought suit “for any improper
purpose.” FED. R. CIV. P. 11(b)(1). They also affirm that “the
factual contentions have evidentiary support.” Id. 11(b)(3).
Of course there are times when we doubt these representa-
tions, but we do so only “after carefully analyzing the legal
and factual sufficiency” of the allegations of malfeasance.
No. 17-1897 11
Fed. Deposit Ins. Corp. v. Tekfen Const. & Installation Co.,
847 F.2d 440, 444 (7th Cir. 1988). Here the Brotherhood
offered no reason to second-guess Union Pacific’s sincerity,
so the Board did not have to conduct a hearing on that
question.
The Brotherhood next contends that the Board deprived
Griff of due process when it “sanctioned” Union Pacific’s
decision to fire him without a hearing. This position is
difficult to parse. On the one hand, the Brotherhood says
that the Board inappropriately placed its imprimatur on
Union Pacific’s denial of due process. That’s obviously
incorrect because the railroad is a private entity that cannot
violate the Fifth Amendment. See Hill, 814 F.2d at 1198. On
the other hand, the Brotherhood argues that the Board effec-
tively terminated Griff when it upheld the railroad’s deci-
sion. That’s also nonsensical. The Board did not adopt or
subsume Union Pacific’s actions when it concluded that
there was no contractual obligation to conduct a pretermina-
tion hearing. This is obvious—resolution of a contract dis-
pute does not transform the parties’ private terms into a
public instrument.
C. Railway Labor Act
The Railway Labor Act provides that disputes between
employees and railroads “shall be handled in the usual
manner.” § 153 First (i). The Brotherhood argues that the
Board violated this provision when it articulated the good-
faith standard but then failed to remand the case to Union
Pacific for an evidentiary hearing.
This claim is fundamentally flawed because the “usual
manner” requirement does not apply to the Board. Our cases
12 No. 17-1897
already hold as much, and the text of the statute is perfectly
clear. See, e.g., Ryan v. Union Pac. R.R. Co., 286 F.3d 456, 458–
59 (7th Cir. 2002). Disputes are supposed to be resolved “in
the usual manner up to and including the chief operating
officer of the carrier designated to handle such disputes.”
§ 153 First (i) (emphasis added). The reference to the “carri-
er” demonstrates that the “usual manner” refers to the
railroad’s dispute-resolution process. Additionally, the
parties are permitted to “petition … the Adjustment Board”
only after “failing to reach an adjustment in this manner.” Id.
(emphasis added). Thus the statute again distinguishes
between the “manner” employed by the parties and the
Board’s arbitral process. It goes without saying that the
Board cannot violate a provision that doesn’t govern it.
The Brotherhood’s argument would also fail even if we
overlooked this key statutory feature. We have held that “the
‘usual manner’ 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. Here the Board explicitly
concluded that the collective-bargaining agreement did not
entitle Griff to a hearing on the good-faith question. It held
that “having ‘cause’ to terminate the employee … does not
mean that the terminated management employee is entitled
to a formal [i]nvestigation.” (Emphasis added.) That the
Brotherhood seeks to relitigate this point on appeal betrays
ignorance either of the Board’s decision or of the governing
law. Again, the Board’s interpretation of the contract is
conclusive even if we think it wrong or unpersuasive.
No. 17-1897 13
D. Rule 38 Sanctions
Rule 38 of the Federal Rules of Appellate Procedure au-
thorizes us to sanction an appellant for filing a frivolous
appeal. An appeal is frivolous “when the result is obvious or
when the appellant’s argument is wholly without merit.”
Arnold v. Villarreal, 853 F.3d 384, 389 (7th Cir. 2017) (quota-
tion marks omitted). Litigants cannot “rehash[] positions
that the district court properly rejected” or “present[] argu-
ments that are lacking in substance and foreordained to
lose.” Berwick Grain Co. v. Ill. Dep't of Agric., 217 F.3d 502, 505
(7th Cir. 2000) (citations and quotation marks omitted).
These standards describe this appeal. The Brotherhood’s
jurisdictional arguments betrayed fundamental principles of
adjudicatory authority. It is obvious that a litigant cannot
bootstrap an arbitrator’s jurisdiction into guaranteed victory.
The due-process and Railway Act claims were also hopeless-
ly flawed; both are foreclosed by our caselaw and plain text.
Finally, we are troubled by the Brotherhood’s blatant and
repeated disregard of the Adjustment Board’s decision. The
Board already decided that Griff was not entitled to a hear-
ing under the collective-bargaining agreement, yet the
Brotherhood chose to contest the merits of that decision
under the guise of a Railway Act claim. Similarly, the
Board’s opinion was self-evidently based on its interpreta-
tion of the agreement, but the Brotherhood repeatedly urged
us to overlook this undeniable fact. We do not allow the
parties to bury their heads in the sand. Ignorance is sanc-
tionable, not bliss.
Nonetheless, the Brotherhood asks us to withhold sanc-
tions because this appeal is an aberration. The union assures
us it’s a responsible litigant and rarely challenges arbitral
14 No. 17-1897
awards and therefore doesn’t need to be deterred from
making unmeritorious appeals in the future. That may be
right, but it misses a key point. Regardless of what the
Brotherhood might do down the road, Union Pacific should
not have been required to litigate this appeal. Rule 38 sanc-
tions are designed to compensate the appellee for the time
and resources wasted in defending against a plainly baseless
appeal. See Harris N.A. v. Hershey, 711 F.3d 794, 801 (7th Cir.
2013). A promise “not to do it again” does not excuse the
harm already inflicted.
In sum, when federal jurisdiction is limited to narrow
grounds, when the arguments on those grounds are implau-
sible, and when the appellant spends much of his time
attempting to circumvent those grounds, sanctions are
appropriate. We therefore grant Union Pacific’s motion for
Rule 38 sanctions. Union Pacific shall provide an accounting
of its costs and attorneys’ fees within 15 days.
AFFIRMED WITH SANCTIONS.