               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 05a0821n.06
                           Filed: October 6, 2005

                                         No. 04-2032

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


JAMES NORBERT GREEN,                                   )
                                                       )       ON APPEAL FROM THE
       Petitioner-Appellant,                           )       UNITED STATES DISTRICT
                                                       )       COURT FOR THE EASTERN
v.                                                     )       DISTRICT OF MICHIGAN
                                                       )
GRAND TRUNK WESTERN RAILROAD                           )                         OPINION
INCORPORATED,                                          )
                                                       )
       Respondent-Appellee,                            )
                                                       )
NATIONAL RAILROAD ADJUSTMENT                           )
BOARD AND THE BROTHERHOOD OF                           )
LOCOMOTIVE ENGINEERS,                                  )

       Respondent.


BEFORE:       COLE and ROGERS, Circuit Judges; BECKWITH, District Judge.*

       R. GUY COLE, JR., Circuit Judge. Petitioner-Appellant James Norbert Green appeals

the district court’s grant of Respondent-Appellee’s motion for summary judgment upon review of

a decision by the National Railroad Adjustment Board (NRAB or Board). For the reasons discussed

below, we AFFIRM the district court’s order.

                                     I. BACKGROUND




       *
       The Honorable Sandra S. Beckwith, Chief Judge of the United States District Judge for the
Southern District of Ohio, sitting by designation.
No. 04-2032
Green v. Grand Trunk Western

       Petitioner-Appellant James Norbert Green worked as a locomotive engineer for Grand Trunk

Western Railroad, Inc. On April 16, 1997, Green was deemed medically disqualified from

performing his work after failing two consecutive hearing tests. On both occasions, the test

administrator was unable to obtain the voluntary responses from Green necessary to assess his

hearing ability. Grand Trunk informed Green that he was medically disqualified pending further

investigation. A third test, taken after he was disqualified, also failed to produce an accurate

assessment of his hearing due to a failure in communication between Green and the administrating

doctor. That doctor found inconsistencies between the portions of the test that Green could control

and those that he could not, suggesting that he had falsified the test. On June 16, 1997, Green

received a letter from Grand Trunk explaining the inconsistencies in his tests, and notifying him that

he would remain medically disqualified while Grand Trunk sought the opinion of his personal

physician. Green’s disqualification was lifted on August 18, 1997, after an independent specialist

verified that Green’s hearing was normal.

       Given the indications that Green was falsifying the tests, Grand Trunk conducted a formal

investigation on August 15, 1997. On September 11, 1997, the investigative panel disciplined Green

for failing to cooperate and for falsifying his hearing tests; the discipline took the form of thirty

demerit points. Grand Trunk also denied Green’s “time claims,” in which he sought compensation

for the four-month period of his disqualification. Green’s union appealed the discipline and the

denial of time claims to the NRAB, which notified Green’s union and Grand Trunk of the date, place

and time of a hearing on the appeal. The union represented Green before the NRAB; Green was not

present at the hearing. The NRAB affirmed the discipline and the denial of the time claims. Green

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Green v. Grand Trunk Western

appealed the NRAB’s ruling to the district court, which granted Grand Trunk’s motion for summary

judgment.



                                         II. ANALYSIS

       This action is governed by the Railway Labor Act, 45 U.S.C. §§ 151-188. Although we

review the grant of summary judgment de novo, Allen v. Michigan Dep’t of Corrections, 165 F.3d

405, 409 (6th Cir. 1999), our review of NRAB awards is similar to that used in other agency

contexts, and has been called “among the narrowest known to the law.” Jones v. Seaboard System

R.R., 783 F.2d 639, 642 (6th Cir. 1986). Thus, we can only overturn an award by the NRAB for: (1)

failure of the NRAB to comply with the requirements of the Railway Labor Act; (2) failure of the

NRAB to conform or confine itself to the matters within the scope of its jurisdiction; or (3) fraud

or corruption. 45 U.S.C. § 153(q); Sheehan v. Union Pac. R. Co., 439 U.S. 89, 93 (1979). Green

argues that the NRAB award should be set aside on each ground of review.

       First, Green argues that, because he did not receive written notice of the exact location and

date of the NRAB hearing, the Board did not comply with 45 U.S.C. § 153(j), which requires the

Board to provide notice of a hearing to employees involved in such a dispute. However, Green had

actual notice of the hearing. It is undisputed that Green’s union counsel notified Green of the time,

date, and general location of the hearing. Although the date of the hearing changed, Green’s counsel

notified Green of the new hearing date. Green was represented by the union’s attorney at the hearing

itself. In Cole v. Erie Lackawanna Ry. Co., 541 F.2d 528, 534 (6th Cir. 1976), we made clear that

where employee-grievants have authorized their union to represent them, actual notice of

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No. 04-2032
Green v. Grand Trunk Western

proceedings satisfies the statutory notice provisions. For this purpose, actual notice is notice for a

sufficient period to allow the employee to consult with union officials and relay information in order

to aid the union’s effective presentation of his claims Id.

       Second, Green alleges that the NRAB’s decision should be set aside due to fraud. Fraud in

this context is understood to mean fraud by a member of the Board, not fraud by a party. See Fine

v. CSX Transp., Inc., No. 99-1645, 2000 WL 1206526, at * 2 (6th Cir. Aug. 18, 2000). See also,

Pacific & Arctic Ry. & Nav. Co. v. United Transp. Union, 952 F.2d 1144, 1148 (9th Cir. 1991);

Woodrum v. Southern Ry. Co., 750 F.2d 876, 882 (11th Cir. 1985), cert. denied, 474 U.S. 821

(1985). Although Green correctly argues that complete unwillingness by a Board member to

respond to any evidence or argument in support of one of the parties’ positions would constitute

fraud, Pacific & Arctic Ry., 952 F.2d at 1148, he brings forth no evidence that any Board member

refused to consider his claims.

       Third, Green argues that the NRAB awards were not within the scope of its jurisdiction

because its rulings were not based on an interpretation of the collective bargaining agreement

(CBA). The NRAB has jurisdiction only over “minor disputes” between employees and carriers

growing out of grievances or the interpretation or application of collective bargaining agreements.

45 U.S.C. § 153(i). Given Congress’s intent to keep minor disputes within the NRAB and out of

the courts, Union Pacific R. Co. v. Sheehan, 439 U.S. 89, 94 (1978), an NRAB decision falls outside

its jurisdiction only if it is in no way supportable by an interpretation of the CBA, its implied terms,

or past practices between the parties. See Norfolk & W. Ry. v. Bhd. of Ry., Airline, & S.S. Clerks,

657 F.2d 596, 599-601 (4th Cir. 1981).

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No. 04-2032
Green v. Grand Trunk Western

       Green argues that the NRAB’s decision strayed from two specific provisions of the CBA.

Green first argues that Grand Trunk did not act in accordance with Article 73, the provision of the

CBA governing medical disqualification, which requires Grand Trunk to handle disqualification of

employees for medical reasons “in the usual way.” Here, there is undisputed evidence that the

requirement of hearing examinations was part of the regular practice of the parties. Moreover,

federal regulations require train engineers’ hearing to be within certain limits, and a Grand Trunk

manager stated that the railroad had always required physical examinations of its employees. See,

e.g., 49 C.F.R. §§ 240.101 & 240.121. Hearing tests, required by federal law, can be read to be

implicit terms of the CBA, just as suspension pending retesting can be understood as “the usual

way” of resolving hearing-related medical issues for engineers. See, e.g., Consolidated Rail Corp.

v. Railway Labor Executives’ Ass’n, 491 U.S. 299, 316-18 (holding drug testing, and related

disciplinary measures, to be an implicit term of a CBA based on past practice between the parties).

       Article 73 requires Grand Trunk to provide employees with certain physical examinations

within 30 days of a request in writing if an employee is not satisfied with the manner in which Grand

Trunk treated him. Green argues that he was not aware that his suspension was for medical reasons

until receiving the letter from Grand Trunk explaining the inconsistencies in his testing, and was

thus not given a chance to submit a request for further testing under Article 73. However, following

the very first hearing test, Green was sent a letter notifying him that he was at risk of medical

disqualification. Whether or not Green’s supervisor told him, at the time of the suspension, that he

had been disqualified for medical reasons, that letter was sufficient to put Green on notice that he

was in danger of a medical disqualification for hearing-related issues.

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No. 04-2032
Green v. Grand Trunk Western

       Green further claims that Grand Trunk did not follow Article 54, the provision in the CBA

governing discipline. Green argues that, because Article 54 requires an investigation before a

disciplinary suspension, he should not have been suspended between June 17 and September 11

when the investigative panel rendered its decision, because Grand Trunk’s letter shows that it

believed on June 17 that Green had falsified a hearing test. However, the record clearly illustrates

that independent of the disciplinary charges, Green was not medically cleared to return to work until

August 18. In fact, Green was allowed to work after being medically cleared despite the pending

disciplinary charges against him.

       Green also claims that Article 54 was not followed insofar as it requires hearings to occur

within 10 days of Grand Trunk’s awareness of the events for which an employee is being

investigated. However, the formal investigation was first scheduled for June 24, 1997, seven days

after Grand Trunk first notified Green that he was suspected of falsifying the tests. The NRAB

found that the investigation was delayed because Green and his union lawyer requested several

continuances. Thus, in affirming the discipline, the NRAB’s award was justified.

       In addition to the above holdings, this Court adopts the reasoning and conclusions of the

district court, and affirms its judgment. Our decision is based on a careful review of the NRAB

award, the district court opinion, the parties’ briefs and submissions, and the applicable authority.

                                       III. CONCLUSION

       For the preceding reasons, we AFFIRM the judgment of the district court.




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