NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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

F RANK H. E ASTERBROOK
, Chief Judge

M ICHAEL S. K ANNE
, Circuit Judge

I LANA D IAMOND R OVNER
, Circuit Judge

No. 08

- 2062

D ALONNO C. J OHNSON
, Plaintiff

- Appellant

,

v

.
CSX T RANSPORTATION
, I NC
., and U NITED T RANSPORTATION U NION
, 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 absente eism. United Transportation Union contested this decision and ultimately took the ma tter to arbitration before a Public Law Board, which r uled in CSXT’s favor. Johnson then sued both the Union and his ex

- employer. The district court granted summary jud g- 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 co llective bargaining agreement occurre d 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 tha t 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 unnece s sary. See Fed. R. App. P. 34(a); Cir. R. 34(f).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 arbitr ators fail to respect the limits of their ju risdiction, or fraud or corruption taints the o r der. (Whether constitutional errors also are reviewable is a question presented in Union Pacific 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 deve loped in this court any contention that the Board’s proceedings vi o lated the due process clause.) Johnson contends that the Board exceeded its jurisdiction. But the a r guments he presents are unrelated to the Board’s powers, which rest on the Railway Labor Act, the collective bargaining agreement, and the parties’ mutual co n sent.

Johnson presents three contentions: (1) that CSXT did not notify him within five days of his sixth absence, as he b elieves 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 b e fore he had enough time to retain counsel, and thus the timing violated the CBA; and (3) th at 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 jurisdi c tion. Surely Johnson does not believe that, if he had prevailed on one of these arg u ments, the Bo ard’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 c ompetent to entertain argument on these three points and render a dec ision. That the decision was adverse to the worker does not strip the Board of “jurisdiction.” Jurisdiction means the power to decide, one way or the other. The Board heard and resolved J ohnson’s arguments. Whether that decision is right or wrong, it is final.

A FFIRMED