KNOPP v. BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN GENERAL COMMITTEE OF ADJUSTMENT CSX TRANSPORTATION NORTHERN RAILROAD LINES SPECIAL BOARD OF ADJUSTMENTS (2023)

ORDER

Introduction

Plaintiff, a former CSX Transportation Inc. (“CSX”) employee, seeks to vacate an arbitration award entered on April 6, 2022. (Doc. 1-1). Plaintiff brought his claims under 45 U.S.C. § 153 which authorizes employees who are aggrieved by an award or the terms of an award made by the National Railroad Adjustment Board or a Special Board of Adjustment to bring an action for review in an United States District Court.

Pending before me are the defendant's Motion for Summary Judgment to uphold the award (Doc. 17), plaintiff's Opposition and Counter Motion (Doc. 18), defendant's Reply (Doc. 20) and Opposition to plaintiff's Counter Motion (Doc. 19), and plaintiffs Reply. (Doc. 21).

Because I find that the plaintiff failed to prove his claims, I deny the plaintiff's Motion and grant the defendant's Motion for Summary Judgment upholding the arbitrator's award under 45 U.S.C. § 153.

Background

Plaintiff Kirk Knopp formerly worked for defendant CSX, as a Conductor/Engineer from September 6, 1999, until his termination on July 8, 2019. (Doc 1-1, PgID 2). On May 27, 2019, plaintiff commented the following on a facebook article, “One less idiot, I have to deal with!” that reported a 21-year old was struck and killed by a CSX freight train. (Doc. 1-1, PgID 3, 7). CSX investigated the plaintiff for violating their Social Media Policy and Operating Rule 104.2. Those provisions prohibit posting malicious and disrespectful comments. (Doc. 1-1, PgID 7). After a collective bargaining agreement hearing, where CSX conducted a full investigation, the plaintiff was dismissed from his position July 8, 2019, for violating the aforementioned policy. (Doc. 1-1, PgID 7).

Following plaintiff's dismissal, plaintiff's union, Brotherhood of Locomotive Engineers and Trainmen General Committee of Adjustment CSX Transportation Northern Railroad Lines (“Brotherhood”), filed an appeal to the Special Board of Adjustment No. 1185 (“Board”). (Doc. 1-1, PgID 6). The board upheld the plaintiff's dismissal on April 8, 2020. (Doc. 1-1, PgID 8). Plaintiff seeks to have the Board's decision vacated and to be reinstated. (Doc. 18, PgID 642).

Standard of Review

Under the Federal Rule of Civil Procedure 56, to obtain summary judgment, a defendant must show: (1) there is no genuine dispute of material facts, and (2) the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “The movant must initially show the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. But, once the moving party meets that burden, the “burden shifts to the nonmoving party [to] set forth specific facts showing there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Discussion

Pursuant to 45 U.S.C. § 153, the court may affirm the order of the division, set aside the order upon certain conditions, or remand the proceeding. 45 U.S.C. § 153, First (q).

To discern the arbitrator's decision, some background is needed in relation to the Railroad Labor Act (“RLA”). See 45 U.S.C. § 151, 153. When Congress adopted the RLA it incorporated a “mandatory arbitral mechanism” to “efficiently resolve labor disputes ․ and keep such disputes out of the courts.” Bhd. of Locomotive Eng'rs & Trainmen v. United Transp. Union, 700 F.3d 891 (6th Cir. 2012) (citing Union P. R. Co. v. Sheehan, 439 U.S. 89, 94, 99, 99 S.Ct. 399, 58 L.Ed.2d 354 (1978)). Under the RLA, the contractual grievance procedures provided an opportunity to settle minor disputes. Supra, 700 F.3d at 899; 45 U.S.C. § 152 First, Second. The “[f]ailure to resolve a minor dispute through such procedures triggers compulsory and binding arbitration.” Supra, 700 F.3d at 899.

The dispute here is a minor dispute because it falls under the application of the collective bargaining agreement's discipline procedures. Airline Prof'ls Ass'n of the Int'l Bhd., of Teamsters, Local Union No. 1224 v. ABX Air, Inc., 274 F.3d 1023, 1028 (6th Cir. 2001) (Kennedy, J.); See 45 U.S.C. § 184; See Consolidated Rail Corp. v. Railway Labor Executives’ Ass'n, 491 U.S. 299, 303, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989).

If, however, there is a failure to resolve the dispute, the parties enter into arbitration proceedings by either the National Railroad Adjustment Board or a “special adjustment board.” 45 U.S.C. § 153, First (i), Second. The Board's decision is to be “final and binding”, subject to review that is limited in scope. 45 U.S.C. § 153 First (m).

The parties can appeal a decision under section of 45 U.S.C. § 153 First (q), in the following limited circumstances: “(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.” Supra, 700 F.3d at 899 (citing Supra, 439 U.S. at 93, 99 S.Ct. 399); 45 U.S.C. § 153 First (q)).

I. The Arbitrator Confined Itself to Matters within its Jurisdiction

Plaintiff argues that the Board (or arbitrator) failed to confine itself to matters within the scope of its jurisdiction, a violation of 45 U.S.C. § 153 First (q). (Doc. 18, PgID 648-51). To determine if the board acted beyond its scope, the Sixth Circuit has held that the determination is based on if the arbitrator “(1) acted outside his authority by resolving a dispute not committed to arbitration; (2) committed fraud, had a conflict of interest, or otherwise acted dishonestly in issuing the award; or (3) was not even “arguably construing or applying the contract” in resolving legal or factual disputes.” Supra, 700 F.3d at 901 (citing Mich. Family Res., Inc. v. SEIU Local 517M, 475 F.3d 746, 753 (6th Cir. 2007)). The court has repeatedly conveyed the narrow nature of overriding an arbiter's decisions. Supra, 700 F.3d at 899 (quoting Supra, 274 F.3d at 1030.).

There is no indication or accusation by either party that the arbitrator “committed fraud, had a conflict of interest, or otherwise acted dishonestly in issuing the award.” Supra, 700 F.3d at 901 (citing Supra, 475 F.3d at 753). Therefore, I need not consider this issue.

A. The Arbitrator did not Act Outside his Authority by Resolving a Dispute Not Committed to Arbitration

First, I must consider whether the Board acted outside its authority by resolving a dispute not committed to arbitration and whether the Collective Bargaining Agreement (“CBA”) permits or allows for arbitration instead. The CBA must allow the dispute to be committed to arbitration if the decision was improper. Article 30 of the parties’ CBA allows CSX and employees, or their duly authorized representatives, to submit contract disputes to arbitration boards. (Doc. 16-2, PgID 128-33). Plaintiff argues that the Board “did not consider the harshness and excessiveness of only one violation of policy.” (Doc. 1, PgID 4). However, the Board found that the plaintiff was in violation of the defendant's policy based on the record and was a “serious failure to exercise good judgment.” (Doc. 1-1, PgID 8). Plaintiff's argument does not adequately address or supply evidence that the dispute between the parties should not have been submitted to arbitration in accordance with the policies of the CBA.

B. The Arbitrator Did Arguably Construe or Apply the Contract

Second, I must examine if the Board considered whether the arbitrator was “ “arguably construing or applying the contract” in resolving legal or factual disputes.” Supra, 700 F.3d at 901 (citing Supra, 475 F.3d at 753). Plaintiff's argument misunderstands the nature of the arbitrator's decision. Both the plaintiff and defendant's Motions “focus[es] on a single question: did the arbitrator appear to be engaged in interpreting the agreement or agreements before him? If so, the court's inquiry ends.” (Doc. 18, PgID 649) (quoting Supra, 700 F.3d at 901). Courts “may not overrule an arbitration award simply because its interpretation of the agreement differs from that of the arbitrator.” (Doc. 20, PgID 669) (citing Supra, 274 F.3d at 1030).

Plaintiff argues that the Board “did not conform to the matters at hand, instead it simply rubber stamped the decision of CSX.” (Doc. 18, PgID 649). Plaintiff also contends that “the Board went beyond its authority in legalizing conduct unrelated to the employer on personal time as a violation of policy.” (Doc. 18, PgID 650). However, the Sixth Circuit articulated that a disagreement with the Board's decision is not sufficient to overrule it. Id. at 1030. Plaintiff's CBA included a social media policy restricting posting malicious and disrespectful comments period. (Doc. 16-2, PgID316) (See Carrier Exhibit Ex. A, 23/35). There was no indication that the policy differed whether the employee was “on the clock.”

The Board noted in its decision that “based upon the evidence of record” the plaintiff violated the defendant's social media policy and his posting was detrimental to the defendant's brand. (Doc 1-1, PgID 8). In addition, the Board noted that it considered the plaintiff's arguments and found them unpersuasive. (Doc 1-1, PgID 8). I agree that the Board was interpreting the CBA rather than seeking to substitute his (or her) judgment. Thus, based on the record, the Board did interpret the CBA and CSX policy as required under 45 U.S.C. § 153 First (q). Therefore, the defendant is entitled to Summary Judgment under this claim because plaintiff cannot establish any genuine issue of law in support of his request to vacate the Board's decision.

II. First Amendment and Public Policy Claim

Plaintiff claims that the Board's decision violated public policy and I should vacate the award. (Doc. 18, PgID 651). Both arguments cite RLA's holding that “public policy review is not permitted under the Railway Labor Act (“RLA”).” NetJets Aviation, Inc. v. Int'l Bhd. of Teamsters, Airline Div., 486 F.3d 935, 937 (6th Cir. 2007)(Rogers, J.). The court of appeals did not decide if the court can vacate RLA awards under public policy review but found that there was no public policy at issue, therefore the award in the case could be upheld. Id. at 937.

First, it is prudent to evaluate whether or not there is a public policy issue present here. Second, I must determine whether under the existing RLA precedent, vacation of the Board's decision, is permitted under public policy.

A. Public Policy at Issue

Plaintiff contends that while NetJets Aviation, Inc. did not find a public policy issue present, public policy is at issue in this case. Public Policy “must be determined from laws and legal precedents, not general considerations of public interest.” USPS v. Nat'l Ass'n of Letter Carriers, 330 F.3d 747, 751 (6th Cir. 2003) (citations omitted). I must limit review “to determining “whether the arbitrator's interpretation of the contract jeopardizes a well-defined and dominant public policy, taking the facts as found by the arbitrator.” ” Supra, 486 F.3d at 937. Furthermore, the “issue is not whether the grievant's conduct violates public policy, but whether enforcement of the contract, as interpreted, would be contrary to public policy.” Columbia Gas of Ohio, Inc. v. Util. Workers Union, Local 349, 329 F. App'x 61, 62-63 (6th Cir. 2009); See also Interstate Brands Corp. v. Teamsters Local Union No. 135, 909 F.2d 885, 893 (6th Cir. 1990); Supra, 486 F.3d at 939.

Plaintiff claims that the public policy at issue is a violation of the First Amendment because he had the “right to make comments on a news article, no matter how inflammatory or offensive.” (Doc. 21, PgID 682). In addition, plaintiff claims that while CSX is a private actor, the Board is not, and the Board made the decision as a governmental actor. (Doc. 21, PgID 682).

I find, however, that CSX did not violate any rights under the First Amendment and therefore no public policy issue is present. I reached this decision for the following reasons. First, CSX properly found that the post did violate the social media policy against harassment of disrespectful comments. (See Discussion Section I).

Second, a private employer has the right to restrict a private employee's use of social media and to discipline the employee when he or she makes statements that violate the policy especially where the statements, as they do here, may put the employer in a bad light. Nothing “limits a private employer's ability to discipline employees for expression.” Barnett v. Aultman Hosp., 2012 WL 5378738, at *6, 2012 U.S. Dist. LEXIS 156073 at ¶ 18 (N.D. Ohio Oct. 31, 2012) (Dowd, Jr., J.). Plaintiff is incorrect in his statement that he has the right to make any comments on news articles, no matter how “inflammatory or offensive” as an employee of a private company. (Doc. 21, PgID 682).

Third, while the First Amendment protects individuals from government restraint on their freedom of speech, it does not restrict private entities, such as employers, from imposing limits upon an employee's public statements.

Both parties contest the determination of a private vs. public actor or action in their Motions for Summary Judgment. However, plaintiff's rationale is off focus. Plaintiff cites Lebron as it discusses when private entities’ actions are considered governmental actions. Lebron v. Nat'l R.R. Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995). However the government, rather than a private entity, created Amtrak. Supra, 513 U.S. at 397, 115 S.Ct. 961. Lebron is distinguishable from the pending case before me because CSX is a private, not a governmental entity. Further, the defendant correctly stated the plaintiff lacks support for his assertion “there are public policy implications” when the board is a “creation of the federal government” and “upholds the termination of an employee for freely speaking his mind on his personal time.” (Doc. 20, PgID 672).

Finally, even though in my view that plaintiff lacks evidence for his claim, the First Amendment is only applicable where there is state action. Eastwood Mall v. Slanco, 68 Ohio St. 3d 221, 223, 626 N.E.2d 59 (1993). Defendant correctly stated that “[a] private entity may be considered a “state actor” for purposes of the First Amendment only “when it exercises a function ‘traditionally exclusively reserved to the State.’ ” Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 139 S. Ct. 1921, 1926, 204 L.Ed.2d 405 (2019) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)). “The Supreme Court ․ refused to find “government” action when a utility disconnected a customer's electricity even though the utility had been subject to broad state oversight.” Supra, 419 U.S. at 352-58, 95 S.Ct. 449. Therefore, even though the Board ultimately upheld the decision under the authority under RLA's broad oversight of arbitration proceedings, like Jackson, I find no government action. CSX's decision to dismiss an employee is a private action and is not subject to the First Amendment. Therefore, Plaintiff's public policy argument under the First Amendment is unfounded.

B. Public Policy as a Reason for Vacatur

As mentioned previously, the Sixth Circuit has held that RLA awards are limited to three specific grounds. Green v. Grand Trunk Western, 155 F. App'x 173, 175 (6th Cir. 2005); Supra, 700 F.3d at 899. Public Policy is not among those aforementioned reasons. While plaintiff cites other circuits, the Sixth Circuit declined to address the issue (Doc. 21, PgID 681). Furthermore, the argument is moot when I find no public policy issue present.

Conclusion

Based on the evidence in the record, there is no genuine issue of material fact. The defendant is entitled to Judgment as a Matter of Law as to all claims.

Accordingly, I find that plaintiff has not met his burden of establishing a violation of 45 U.S.C. § 153 or that the decision is contrary to public policy and/or the First Amendment. Granting the defendant's Motion of Summary Judgment is proper in this case as is the denial of the plaintiff's Countermotion.

For the foregoing reasons, it is hereby ORDERED THAT: defendant's Motion for Summary Judgment (Doc. 17) be, and same hereby granted; and the plaintiff's Counter Motion for Summary Judgment (Doc. 18) be, and the same hereby is denied.

So ordered.

James G. Carr, Senior United States District Judge