Robinson v. Union Pacific Railroad

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 13 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

ROBERT ROBINSON,

Plaintiff-Appellant,

v. No. 00-1240

UNION PACIFIC RAILROAD,

Defendant-Appellee,

UNITED TRANSPORTATION
UNION,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 99-K-841)

Submitted on the briefs:

Jeffrey Menter, Littleton, Colorado, for Plaintiff-Appellant.

Brenda J. Council and Conal L. Hession of Kutak Rock LLP, Omaha, Nebraska
for Defendant-Appellee.

Before SEYMOUR , BALDOCK , and LUCERO , Circuit Judges.

BALDOCK , Circuit Judge.
 Plaintiff-appellant Robert Robinson appeals the district court’s grant of

summary judgment to defendant-appellee Union Pacific Railroad (UP) on his

claim that Public Law Board 5914, convened under the Railway Labor Act (RLA),

45 U.S.C. § 153 First (i), exceeded the scope of its jurisdiction in arbitrating his

grievance against UP. The district court concluded that, under Fed. R. Civ. P.

12(b)(1) and 12(b)(6), it lacked subject matter jurisdiction to review the Board’s

decision. We have jurisdiction over Mr. Robinson’s appeal pursuant to 28 U.S.C.

§ 1291, and we affirm. 1

I.

Mr. Robinson was employed as a hostler/engineer for Southern Pacific

Lines, 2 when, on November 18, 1994, he caused an unauthorized reverse

movement of a locomotive without prior warning. Following an investigation of

the incident, Mr. Robinson’s employment was terminated. On November 28,

1994, the United Transportation Union (UTU) filed a complaint with Southern

Pacific on Mr. Robinson’s behalf, seeking reinstatement and back pay and

1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
2
During the pendency of the this action, Southern Pacific Lines merged with
Union Pacific Railroad, the properly named defendant in this case.

-2-
benefits for time lost. After some delay, Public Law Board 5914 (the Board) was

convened pursuant to the mandatory arbitration procedures of the RLA, 45 U.S.C.

§ 153 First (i), to consider Mr. Robinson’s grievance of Southern Pacific’s

actions.

Following review, the Board found that there was sufficient evidence to

support a finding that Mr. Robinson was guilty of the rules violation. Because of

his sixteen-years’ seniority and the fact that the incident did not pose a danger to

any other worker, however, the Board concluded that Southern Pacific’s

termination of Mr. Robinson was unreasonable, arbitrary, and capricious. The

Board then ordered Mr. Robinson reinstated without back pay. In so doing, the

Board reasoned that although Mr. Robinson’s rules violation did not warrant

termination, it did warrant a lengthy suspension, and that the period between his

dismissal and his reinstatement would be sufficient.

On April 30, 1999, Mr. Robinson filed a complaint in federal district court

against the Board, UP, and the UTU, presenting several claims involving the

procedure and result of the Board’s arbitration of his grievance. The district

court struck Mr. Robinson’s initial complaint and ordered him to file an amended

complaint. Mr. Robinson complied, filing a second amended complaint on May 6,

1999. UP filed a motion to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of

subject matter jurisdiction and 12(b)(6) for failure to state a claim. UTU filed a

-3-
motion for summary judgment. The district court entered an order granting UP’s

motion to dismiss for lack of subject matter jurisdiction. Robinson v. Public Law

Bd. No. 5914 , 63 F. Supp. 2d 1266, 1272 (D. Colo. 1999).

On January 4, 2000, the district court granted Mr. Robinson’s motion to file

a third amended complaint, naming UP and UTU as defendants and asserting

claims for a breach of duty and fair representation and petitioning for review of

the Board’s award. The parties filed cross motions for summary judgment. The

district court denied Mr. Robinson’s motion for summary judgment, granted the

summary judgment motions of UP and the UTU, and dismissed Mr. Robinson’s

petition for review for lack of subject matter jurisdiction. Robinson v. Union

Pac. R.R. , 98 F. Supp. 2d 1211 (D. Colo. 2000). Although the parties posit the

issues on appeal somewhat differently, we determine that the only issue before

this court is whether the district court erred in concluding that it did not have

subject matter jurisdiction to review the Board’s arbitration award. 3

3
In his brief, Mr. Robinson identifies two additional issues: (1) the district
court erred by examining extrinsic evidence of past custom and practice that was
not considered by the Board; and (2) the district court erred by holding that a
prior suspension constituted a custom or practice which allowed the Board to
impose a suspension. As to the first of these contentions, he does not identify the
extrinsic evidence improperly considered by the court except for evidence of a
prior suspension, which the court specifically stated was included in the history
before the Board. Appellant’s App. at 110. His argument in support of the
second issue is nothing more than a reiteration of his assertion that the Board
incorrectly interpreted the collective bargaining agreement. Because of our
(continued...)

-4-
 II.

Initially, we must determine our standard of review of the district court’s

decision. UP moved, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), for

summary judgment, alleging that the district court lacked subject matter

jurisdiction. It is permissible to move under either Rule 12(b)(6) for dismissal for

failure to state a claim or Fed. R. Civ. P. 56 for summary judgment when the

moving party requests that the court consider materials outside the complaint.

State Farm Mut. Auto. Ins. Co. v. Dyer , 19 F.3d 514, 518 n.8 (10th Cir. 1994).

When the motion to dismiss is grounded in a lack of subject matter jurisdiction,

however, the motion must be brought under Rule 12(b)(1). Id. “Seeking

summary judgment on a jurisdictional issue . . . is the equivalent of asking a court

to hold that because it has no jurisdiction the plaintiff has lost on the merits.” Id.

An exception exists, however “[w]hen[, as here,] subject matter jurisdiction

is dependant upon the same statute which provides the substantive claim in the

case.” Wheeler v. Hurdman , 825 F.2d 257, 259 (10th Cir. 1987). In such cases,

the issue of jurisdiction and the merits of the case are considered to be

intertwined. Id. Because we determine that the question of whether the Board

3
(...continued)
decision in this case that the court lacked subject matter jurisdiction to review the
Board’s decision, we do not reach the merits of these issues.

-5-
exceeded the scope of its jurisdiction in interpreting the parties’ collective

bargaining agreement is both a jurisdictional issue and a substantive factual

determination, and because the court relied on evidence outside the complaint,

the motion was properly considered as one for summary judgment. See id.

Mr. Robinson’s burden of proof remains essentially the same--he “must present

affidavits or other evidence sufficient to establish the court’s subject matter

jurisdiction by a preponderance of the evidence.” United States ex rel. Hafter v.

Spectrum Emergency Care, Inc. , 190 F.3d 1156, 1160 n.5 (10th Cir. 1999).

“We review the grant of summary judgment de novo, applying the same

legal standard that would be used by the district court.” Id. at 1160. We also

review a claim of subject matter jurisdiction de novo. Id. “Since federal courts

are courts of limited jurisdiction, we presume no jurisdiction exists absent an

adequate showing by the party invoking federal jurisdiction.” Id.

III.

Under the RLA, employee grievances regarding termination are categorized

as minor disputes and are to be resolved by arbitration. Andrews v. Louisville &

Nashville R.R. Co. , 406 U.S. 320, 322-23 (1972). In this case, the arbitrator was

a special adjustment board as provided for in 45 U.S.C. § 153 Second. The

parties do not challenge the submission of this matter to the Board, or the manner

in which the Board was selected.

-6-
 Title 45, section 153 Second of the RLA provides that the Board’s

decisions “shall be final and binding upon both parties to the dispute.” An

adverse decision may be appealed to the federal district court on only three

grounds: “(1) failure of the Adjustment Board to comply with the requirements

of the Railway Labor Act; (2) failure of the Adjustment Board to 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)); accord Watts. v. Union Pac. R.R. Co. , 796 F.2d 1240, 1243

(10th Cir. 1986). In Sheehan , the Supreme Court stated, “[w]e have time and

again emphasized that this statutory language means just what it says.” 439 U.S.

at 93. Likewise, this court has emphasized that this statutory standard of review

“is among the narrowest known to the law.” Watts , 796 F.2d at 1243 (quotation

omitted). Of paramount importance to our decision here is our holding in Watts

that “[t]he reviewing court is not to determine whether the Board’s decision is

correct, but may only consider its decision in light of the circumstances

enumerated by the statute.” Id. On appeal, Mr. Robinson asks the court to find

the Board’s decision to be incorrect and therefore outside its scope of jurisdiction.

This we decline to do.

The Board’s award was based on its interpretation of Article 34(J) & (M)

of the parties’ “Contract of Wages and Working Conditions.” Article 34(J) states:

-7-
 (J) In case discipline is found to be unjust, the fireman or
hostler involved, if dismissed will be reinstated with full pay for the
time he has been out of service. Full pay will mean one day’s pay for
each 24 hours at the rate pertaining to his class of service. If
disciplines by demerit mark or reprimand, all such notations will be
removed from his record.

Appellant’s App at 27. Adopting a system of “Discipline by Record,” Article

34(M)(1) & (2) state:

(1) The application of “Discipline by Record” in lieu of actual
suspension will be hereafter applied to the following classes of
employees:

....

Hostlers and Hostler Helpers

....

(2) Discipline will be maintained by Reprimands, Demerits and
Dismissal. Record of Reprimands, Demerits or Dismissal will be made in
accordance with the Investigation Rules of the various employee working
agreements as heretofore, or as hereafter amended. A reprimand or record
of Demerits, will not be entered in an employee’s record without written
notice to him.

Id. at 28-29.

Here, the Board found that although Mr. Robinson “acted carelessly, we do

not find that anybody was endangered as a result of his failure to follow all the

rules.” Id. at 44. For this reason, and because Mr. Robinson had sixteen years’

seniority, the Board concluded that UP’s decision to terminate him was

unreasonable, arbitrary, and capricious. Id. at 45. The Board then ordered that

-8-
Mr. Robinson be returned to full employment after being retrained, and that his

discipline be a lengthy suspension equal to the time between his termination and

his reinstatement. Id. The thrust of Mr. Robinson’s argument on appeal is that

the provisions of the parties’ collective bargaining agreement at issue here

preclude a suspension remedy and require that he be reinstated with back pay.

In an earlier decision of this court, the sole issue was “whether the

arbitrator exceed[ed] his jurisdiction by fashioning an award allegedly

inconsistent with the terms of the collective bargaining agreement.” Chernak v.

Southwest Airlines Co , 778 F.2d 578, 580 (10th Cir. 1985). In Chernak , we

recognized the Supreme Court’s emphasis on the strict enforcement of the

statutory restrictions on judicial review of awards made by special boards created

pursuant to the RLA. Id. Similar to the Supreme Court’s decision in Sheehan ,

we held that we would not expand the scope of judicial review “to permit the

relitigation of disputed interpretations of the collective bargaining agreement.”

Id. at 580. We reasoned that

[t]o permit judicial review of every case where the losing party
disagrees with the arbitrator’s application of the collective
bargaining agreement would frustrate Congressional efforts to
promote stability in labor management relationships and would be in
violation of the mandate of the Supreme Court in Sheehan . This is a
particularly appropriate result in cases such as this where a grievance
is submitted to an arbitrator or board selected by the parties through
the collective bargaining process. The parties to a collective
bargaining agreement are entitled to the benefit of their bargain and

-9-
 it is the arbitrator’s judgment, not the court’s, for which the parties
have bargained.

Id. 4

“[D]ecisions by adjustment boards which merely interpret collective

bargaining agreements are conclusive and binding on the parties; no federal or

state court has jurisdiction to review such a determination by an adjustment

board.” Barnett v. United Air Lines, Inc. , 738 F.2d 358, 361 (10th Cir. 1984).

Therefore, even if we were inclined to disagree with the Board’s interpretation of

the applicable provisions of the collective bargaining agreement, “the applicable

standard of review does not permit us to make this interpretation.” Watts ,

796 F.2d at 1244. 5

Mr. Robinson urges this court to apply the holdings in United

Paperworkers International Union v. Misco , Inc. , 484 U.S. 29 (1987) , Bernard v.

Commercial Carriers, Inc. , 863 F.2d 694 (10th Cir. 1988), Mistletoe Express

Service v. Motor Expressmen’s Union , 566 F.2d 692 (10th Cir. 1977), Norfolk &

4
We conclude that Mr. Robinson’s attempt to distinguish Chernak based on
irrelevant factual differences fails. The issue before the court and its reasoning in
Chernak is directly on point with, and applicable to, Mr. Robinson’s appeal.
5
We stress that our decision is based not on the principle that the Board may
ignore the terms of a collective bargaining agreement, but rather that the Board’s
construction of the agreement as allowing a sanction of a four-and-a-half year
suspension without pay is not so unreasonable that the Board failed to “confine
itself to matters within the scope of its jurisdiction.” Sheehan , 439 U.S. at 93;
§ 153 First (q).

-10-
Western Railway v. Transportation Communications International Union , 17 F.3d

696 (4th Cir. 1994), and Pitts v. National Railroad Passenger Corp. , 603 F. Supp.

1509 (N.D. Ill. 1985), which he reads as concluding that an arbitrated

interpretation of a contract is subject to judicial review if the arbitrator ignores

the plain language of the contract. Misco, Inc. , Bernard , and Mistletoe Express

are not applicable here as they do not implicate the strict statutory limits on

judicial review found in the RLA.

Contrary to Mr. Robinson’s contention, the decision in Norfolk does not

help his argument. In Norfolk , the Fourth Circuit held that under the RLA’s

standard of review, “a court may not overrule an arbitrator’s decision simply

because it believes its own interpretation of the contract would be the better one.”

17 F.3d at 699-700 (quotation omitted). The court concluded that an arbitrator’s

award may be overturned as in excess of the Board’s jurisdiction, “only where the

arbitration board’s order does not draw it essence from the collective bargaining

agreement, or its interpretation of the contract is wholly baseless and completely

without reason.” Id. at 700 (quotations omitted). “‘As long as the arbitrator is

even arguably construing or applying the contract,’ the arbitrators’ award must

not be disturbed.” Id. (quoting Misco, Inc. , 484 U.S. at 38). Here, the district

court concluded, and we agree, that the Board’s interpretation of the parties’

collective bargaining agreement did not forbid the remedy of suspension or

-11-
mandate an award of back pay. Therefore, we cannot say that the Board’s

interpretation was either baseless or without reason.

In Pitts , a district court case, the court commented that the Seventh

Circuit’s decision in Wilson v. Chicago & North Western Transportation Co. ,

728 F.2d 963 (7th Cir. 1984), suggests that the Board’s denial of back pay may

exceed the scope of its jurisdiction. 603 F. Supp. at 1518. The Board in Wilson

determined that the appropriate remedy for the railroad’s failure to hold a timely

hearing was to award the employees their lost wages for the time between their

suspensions and their dismissals even though the collective bargaining agreement

stated that dismissal of the charges was the appropriate remedy for the railroad’s

failure to hold a timely hearing. Basically, the Wilson court determined that

upholding the employees’ dismissals on charges that should have been dismissed

was in excess of the scope of the Board’s jurisdiction. As the court in Pitts

noted, this decision does little more than suggest that a denial of back pay may

be outside the scope of the Board’s jurisdiction and is equally unhelpful to

Mr. Robinson’s arguments.

We agree with the Fourth Circuit, that “[i]n the absence of language

evidencing a clear intent to deny the arbitrator any latitude of judgment,” the

arbitrator is the proper one to address the question of “whether reinstatement with

full pay represents the sole remedy for an employee who has suffered an injustice,

-12-
or whether it merely marks the outer limits within which an arbitrator may fashion

a remedy appropriate to the circumstances.” Lynchburg Foundry Co. v. United

Steelworkers of Am., 404 F.2d 259, 261 (4th Cir. 1968). The Lynchburg court

concluded that a “rigid interpretation” of the scope of the arbitrator’s authority

would “be acceptable only if a contract expressly forbade the arbitrator to

exercise any discretion in fashioning this award.” Id.

Here, there is nothing in the germane provisions of the parties’ collective

bargaining agreement which states that reinstatement with an award of back pay is

the sole remedy available to an unjustly discharged employee. There is also

nothing which forbids the Board from fashioning an appropriate remedy.

Although the Board found that Mr. Robinson’s discharge was unreasonable, it

still found him to be at fault. Under these circumstances, we see no impediment

in the collective bargaining agreement to the Board’s award of a lengthy

suspension.

IV.

As previously stated, under § 153 First (q), the standard of judicial review

of railway labor arbitration awards is extremely narrow. Watts , 796 F.2d at 1243.

The district court (and this court, on appeal from the district court) does not

review the correctness of the arbitration award. Absent claims of fraud or

corruption, our only concern is whether the Board did the job it was created to

-13-
do--not whether it did it correctly. We conclude that the Board’s interpretation of

the collective bargaining agreement and the resulting award in this case were

neither baseless nor without reason. See Norfolk , 17 F.3d at 700. Therefore, the

Board did not exceed the scope of its jurisdiction, and the district court was

correct in concluding that it did not have subject matter jurisdiction to review the

award.

The judgment of the United States District Court for the District of

Colorado is AFFIRMED.

-14-