Dalonno C. Johnson v. CSX TRANSPORTATION, INC., and UNITED TRANSPORTATION UNION

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 12, 2009*
Decided August 17, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 08-2062
DALONNO C. JOHNSON,
Plaintiff-Appellant,
v.
CSX TRANSPORTATION, INC., and
UNITED TRANSPORTATION UNION,
Defendants-Appellees.
Appeal from the United
States District Court for the
Northern District of Illinois,
Eastern Division.
No. 05 C 5923
George M. Marovich, Judge.
Order
CSX Transportation (CSXT) fired Dalonno Johnson in 2004 for excessive absentee-
ism. United Transportation Union contested this decision and ultimately took the mat-
ter to arbitration before a Public Law Board, which ruled in CSXT’s favor. Johnson then
sued both the Union and his ex-employer. The district court granted summary judg-
ment for defendants, because the substance of the Board’s decision is not reviewable.
See 45 U.S.C. §153 First (q).
CSXT disciplined Johnson repeatedly for absenteeism. The last straw came when
Johnson failed to appear on six scheduled work days during February and March 2004.
He did not provide CSXT any explanation for not showing up. A hearing under the col-
lective bargaining agreement occurred on June 4, 2004, after four delays at the Union’s
request. Johnson appeared without counsel and asserted that he was entitled to one;
CSXT replied that Johnson had missed his opportunity by not retaining a lawyer before
the hearing. Johnson then said that he had medical reasons for his absences, but CSXT
was not impressed, given that this explanation was being advanced for the first time—
* After examining the briefs and the record, we have concluded that oral argument is unnecessary. See
Fed. R. App. P. 34(a); Cir. R. 34(f).

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No. 08-2062 Page 2
and without any written support from a physician. The Board concluded that, even if
Johnson’s explanation were honest, CSXT was not obliged to accept it, because in the
railroad industry excessive absence for any reason justifies a discharge.
Section 153 First (q) permits a court to set aside a Board’s decision only if the arbitra-
tors fail to respect the limits of their jurisdiction, or fraud or corruption taints the order.
(Whether constitutional errors also are reviewable is a question presented in Union Pa-
cific R.R. v. Brotherhood of Locomotive Engineers, cert. granted, 129 S. Ct. 1315 (2009) (to be
argued Oct. 7, 2009), but not one that affects this proceeding, as Johnson has not devel-
oped in this court any contention that the Board’s proceedings violated the due process
clause.) Johnson contends that the Board exceeded its jurisdiction. But the arguments he
presents are unrelated to the Board’s powers, which rest on the Railway Labor Act, the
collective bargaining agreement, and the parties’ mutual consent.
Johnson presents three contentions: (1) that CSXT did not notify him within five
days of his sixth absence, as he believes the CBA requires (instead CSXT gave notice
within five days of the end of March 2004, the measuring period for absenteeism); (2)
that the hearing was held before he had enough time to retain counsel, and thus the
timing violated the CBA; and (3) that discharge is an excessive response to his absences.
These arguments are the substantive points made to the Board; they are unrelated to
the Board’s jurisdiction. Surely Johnson does not believe that, if he had prevailed on one
of these arguments, the Board’s decision could be set aside (on CSXT’s request) because
the Board “lacked jurisdiction” to decide them. Jurisdiction is adjudicatory competence.
See Eberhart v. United States, 546 U.S. 12 (2005); Kontrick v. Ryan, 540 U.S. 443 (2004). The
Board was competent to entertain argument on these three points and render a deci-
sion. That the decision was adverse to the worker does not strip the Board of “jurisdic-
tion.” Jurisdiction means the power to decide, one way or the other. The Board heard
and resolved Johnson’s arguments. Whether that decision is right or wrong, it is final.
AFFIRMED

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