Briefs of Recent Court Decisions of
Interest to Section 3 Referees
Barry E. Simon
simonarb@earthlink.net
December 12, 2009
Alan E.
Thompson, et al. v. United
Transportation
Union, 09-1223 (8th
Cir. December 8, 2009)
In
1996, to facilitate its merger with the
Chicago & North Western, the Union
Pacific agreed to pay $9.5 million to
the UTU “in full settlement of all time
claims and grievances of record.”
Anticipating that the total value of the
outstanding claims would exceed that
amount, the General Committee of
Adjustment established panels to review
the validity and value of every claim.
By August 2001 it was determined that
the valid claims had a value of only
$6.5 million. By then, the UP had
agreed to an additional payment to cover
compound interest and Railroad
Retirement taxes, bringing the
settlement up to $11.3 million. The
General Committee explored options for
distribution of the surplus and decided
to pay all valid claims at full value,
pay $250,000 to the General Committee to
cover the cost of reviewing the claims,
and distribute the remainder equally
among all active union members. This
resulted in each member receiving
$2,508.95 from the surplus. Plaintiffs,
suing the UTU for breaching its duty of
fair representation, argued that all of
the money should have been used to pay
the claims on a pro rata basis, whether
that meant receiving less than full
value or more. The Eighth Circuit found
that the decision to distribute the
funds was a rational choice and that the
decision making process was
“transparent, measured, and
democratic.” Affirming the District
Court’s grant of summary judgment in
favor of the UTU, it ruled there was no
breach of the duty of fair
representation.
The
full opinion may be read at
http://caselaw.lp.findlaw.com/data2/circs/8th/091223p.pdf
December 9, 2009
United
Transportation Union and Carmen J. Famulare v. National Railroad
Passenger Corp. 08-0854-cv (2d Cir.
Dec. 9, 2009)
Amtrak
terminated a UTU local chairman whom it
determined to have attempted to bribe a witness
in a disciplinary hearing involving another
employee. While recognizing employee
representatives enjoy significant latitude when
functioning as such, PLB 6865 found such
latitude did not cover these activities and
upheld the dismissal. The District Court for
the Northern District of New York vacated the
Board’s decision on summary judgment, holding
that the RLA “does not provide employers with
any say over the conduct of the employees’
representative while the representative is
engaged in his or her representative capacity;
in fact the Act forbids it.” The court relied
upon Section 2 Third and held it provides
employees with a
per se
sanctuary from discipline for misconduct engaged
in while functioning as a union official.
The Second
Circuit Court of Appeals reversed. In doing so,
it first found that an appeal of a Board
decision pursuant to Section 3 First (q) is
appropriate when it alleges the carrier’s
failure to comply with Section 2 Third, noting
that an award may be set aside “for failure of
the [Board] to comply with the requirements of
this chapter,” and that Sections 2 and 3 are
both parts of Chapter 8 of Title 45 of the U.S.
Code. The Court of Appeals then rejected the
concept that Section 2 Third creates “an
unassailable ‘cloak of immunity’ for the
misconduct” of employee representatives. It
additionally noted that the employee was
offering the witness free Amtrak travel at
Amtrak’s expense, which it said was undermining
“Amtrak’s disciplinary process and effectively
stealing from his employer at the same time.”
The court also stated that a Board acts within
its jurisdiction when it interprets and applies
Section 2 Third because Section 2 Eighth makes
it part of the collective bargaining agreement.
You may review
the entire decision at
http://www.ca2.uscourts.gov/decisions/isysquery/16260eb5-cd17-476a-8a52-70544306b25a/2/doc/08-0854-cv_opn.pdf
December 8, 2009.
Union Pacific v. Brotherhood of Locomotive Engineers
and Trainmen, 08-604 (Sup. Ct. Dec. 8, 2009).
Affirming the
Seventh Circuit’s decision to vacate five NRAB
awards, the Supreme Court held that the case was
one of statutory interpretation rather than a
Constitutional due process issue. The Board had
dismissed the claims on the basis that it did
not have jurisdiction because there was no
evidence they had been discussed in conference
prior to submission to the NRAB. To reach this
conclusion, the panel refused to consider
evidence of conferencing that was not included
in the Organization’s submission. While the
Court ruled that Section 2, Second and Sixth
imposes upon the parties the obligation to
attempt settlement in conference, the
satisfaction of that obligation was found not to
be a condition precedent to the adjudicatory
authority of the Board. If the requirement to
confer is not jurisdictional, the Court held
that the failure to submit proof of conferencing
cannot be jurisdictional. The Court stated,
“Congress gave the [NRAB] no authority to adopt
rules of jurisdictional dimension.” Addressing
the relationship between the Section 2
obligation to confer and the course to be taken
by the Board, the Court stated, “[W]hen the fact
of conferencing is genuinely contested, we see
no reason why the panel could not adjourn the
proceeding pending cure of any lapse.”
The decision may be found
at
http://laws.findlaw.com/us/000/08-604.html
March 3, 2009.
Continental Airlines, Inc. v. Air Line Pilots
Association, International, 07-20835 (5th
Cir., Jan. 13, 2009).
Captain McWhirter, following a
positive alcohol test, entered into a last
chance agreement on October 18, 2000, requiring
him, inter alia, to submit to no-notice
testing for five years. On February 10, 2005,
he refused to submit to a test and the carrier
fired him. At his hearing before the System
Board of Adjustment, McWhirter testified that he
refused to take the test because he had taken
another test in January and he was upset
because the carrier had not told him the results
of that test. (The carrier had received notice
that the test results were negative a week
before his refusal, but had not informed him.)
McWhirter also testified that he did not believe
he was subject to the no-notice testing because
he was on long-term disability leave at the
time. While the SBA concluded McWhirter
knowingly refused to take the test, it
concluded, under the CBA's mitigation provision,
that his refusal was an understandable, if not
entirely rational, response to Continental
"dropping the ball." Thus, the SBA directed
that McWhirter be reinstated to his leave status
conditioned upon his participation in the EAP.
The district court reversed the
SBA's reinstatement order, accepting the
carrier's argument that the SBA was without
authority to order reinstatement based upon
McWhirter's non-medical reason for refusing to
take the test. The Court of Appeals, however,
held that reinstatement was within the Board's
remedial authority. The court discusses the
interplay between the CBA and the last chance
agreement. The court, however, overturned the
EAP requirement in the Board's decision on the
basis that it conflicted with DOT regulations
giving sole discretion regarding treatment
evaluations and recommendations to a DOT
accredited Substance Abuse Professional (SAP).
It held, therefore, that the EAP requirement
violated public policy. In remanding the case
to the SBA, it noted that the regulations do not
preclude the Board from ordering "that an
employee comply with whatever treatment,
assistance, program, or conditions a SAP
recommends."
March 3, 2009.
On February 20, the Supreme Court granted certiorari in
BLET v. Union Pacific Railroad Co., No.
06-2542 (7th Cir., April 9, 2008) reported below on
April 18, 2008. This case involved five
claims at the NRAB where the Board dismissed the claims
because there was no evidence that they had been
discussed in conference. the Board refused to
accept such evidence at the hearing because it had not
been exchanged during the handling of the claims on the
property. The Seventh Circuit overturned the
awards, holding that evidence of conference is not
subject to the bar on new argument or evidence.
July 14, 2008. Ollman v.
SBA 1063, BLE and Norfolk Southern, 05-1706-cv
(2nd Cir., June 3, 2008).
On October 17, 2000, and SBA upheld
Plaintiff's dismissal for conducting himself in an
unbecoming manner while off duty and for taking an
unjustified sick leave. Plaintiff denied that he
had received notice of the Board's hearing on his
claim, although the Union produced a copy of the
letter it had sent him. Acting pro se,
Plaintiff filed a verified petition in the District
Court of New York on May 27, 2002. Pursuant to the
Court's direction, he filed an amended complaint on
January 9, 2003 alleging he was not provided notice
of the Board proceeding. He also asserted the Union
had breached its duty of fair representation.
The Carrier and the Union filed
motions to dismiss, asserting notice of the date,
time and place of the Board hearing was given. The
Board asserted immunity. The District Court
dismissed the Board, finding it immune under H.
G. Skidmore v. Consolidated Rail Corp., 619
F.2d 157, 159 (2d Cir. 1979), cert. denied,
449 U.S. 854 (1980). The Court also dismissed the
Union as a proper party for review because its role
as the Board "is as an advocate for the employee;
thus the Union is more analogous to an attorney in a
lower court proceeding, than to a party." The DFR
claim was also dismissed as untimely under the six
month statute of limitations. Finally, the Court
held that the RLA's "due notice" provision is
satisfied by notice from the union to the employee.
In reaching this conclusion, the Court erroneously
found that Plaintiff "was present and participated
in the hearing."
Citing the Third, Fifth, Seventh and
Eleventh Circuits, the Second Circuit held that
notice to the Union satisfies the statutory
requirement. It cautioned, though, that the Union's
failure to notify an employee of a pending board
proceeding may subject it to action for a breach of
its duty of fair representation. The Circuit Court
also reaffirmed that the Board is not a proper party
in a petition for review. Finally, it agreed that
the Union was not a proper party either; only the
Carrier, whose disciplinary actions were contested
at the Board, was the appropriate respondent.
July 14, 2008. UTU v. BNSF and Longview
Switching Co., 07-35066 (9th Cir. June 9,
2008).
Longview Switching Company is
jointly owned by BNSF and UP, and performs
switching at a facility jointly owned by those
two carriers. Historically, all three carriers
performed switching at Longview Junction, with
BNSF switching there for twelve hours and then
UP switching for the next twelve. In May 2006
the three carriers entered into an Overhead
Trackage Rights Agreement allowing LSC to
perform all the switching. The Surface
Transportation Board issued an order exempting
this transaction, making it subject to
Norfolk & Western Protective Conditions.
The Union filed a petition with the STB to
stay the exemption, and it was denied. It then
filed an action in the District Court of
Washington, asserting the Carriers violated the
RLA by unilaterally transferring the work from
BNSF employees to LSC employees. The Ninth
Circuit affirmed the District Court's decision
that the Interstate Commerce Act ga! ve
exclusive jurisdiction of this issue to the STB,
and the court had no jurisdiction to deal with
the RLA argument.
July 14, 2008.
Hysten v. BNSF, 05-3391 (9th Cir. July 7,
2008).
When Plaintiff, a freight car
mechanic, injured his back he was not sure if it
was a work related injury. When he finally told
the Carrier that it was, he was cited for
failing to report an injury promptly and was
dismissed. A PLB found that there was
insufficient evidence that he sustained his
injury on duty, and that he waited two long - 45
days - to report it. The Board reinstated him
for "one final chance" but did not award back
pay. He was off work for twenty months.
Shortly after returning to work, he filed a
claim for retaliatory discharge under Kansas
law. The Carrier removed the case to the
District Court, which granted its motion to
dismiss, predicting that the Kansas courts would
not agree that "public policy . . . requires
that the exceptions to the doctrine of
employment at will be extended to create an
actionable retaliation claim under FELA. The
9th Circuit reversed and remanded in light of
the decision of the Kan! sas Supreme Court in
Hysten v. BNSF, 85 P.3d 1183 holding
that (1) Kansas recognizes a common law tort of
retaliatory discharge for the exercise of rights
under FELA and (2) the remedies available to
aggrieved employees under the RLA are not
adequate alternative remedies. At trial, the
District Court awarded Plaintiff $30,000 in
backpay, $5,000 in compensatory damages and
$120,000 in punitive damages. The Court also
awarded $9,265.09 in prejudgment interest.
The 9th Circuit then rejected the
Carrier's challenges that (1) the District Court
erred in denying its motion for judgment as a
matter of law on Plaintiff's retaliatory
discharge claim because the only evidence of
pretext was temporal proximity; (2) the District
Court erred in instructing the jury on punitive
damages, and in sustaining the punitive damage
award because he failed to introduce sufficient
evidence to satisfy Kansas's standard for
punitive damages; and (3) since the backpay
award was unliquidated, the district court
abused its discretion in awarding prejudgment
interest. With respect to the first of the
Carrier's objections, the Court held that the
filing of an injury report is sufficient to put
the Carrier on notice that there might be a
consequent FELA action. There was sufficient
evidence to conclude that the decision to
terminate Plaintiff was motivated by the
potential FELA claim and was therefore
retaliatory.
April 10, 2008. BLET v. Union
Pacific Railroad Co., No. 06-2542 (7th Cir., April
9, 2008)
Five separate discipline or discharge cases were
brought before the First Division, which dismissed
each of them in Award Nos. 26089, 26090, 26092,
26093 and 26094 on the basis there was no evidence
in the on-property record that the claims had been
conferenced. The Board refused to consider evidence
of the conferences that was presented at the hearing
but not contained in the on-property record. The
Organization dissented and appealed for review in
district court. The district court dismissed the
Organization's appeal holding (1) that conference is
a prerequisite to appeal to the Adjustment Board and
(2) that the Board did not violate due process by
refusing to consider evidence of conferencing
outside the on-property record. The Organization
appealed to the Seventh Circuit, challenging only
the second holding. In doing so, the Organization
also argued that the Board violated the Act by
failing to conform or confine itself to matters
within the scope of its jurisdiction.
The
Court of Appeals took note of the rule requiring
the organization to affirmatively show that all
arguments and facts in support of its positions have
been presented to the carrier and made a part of the
particular question in dispute. Because the fact of
conferencing is not support for the organization's
position, the court did not find the rule to require
evidence of the conference to be presented in the
on-property record. The court also concluded that
the NRAB's precedential rule that it cannot consider
new evidence to be limited to that evidence that
would concern the merits of the claim, thereby
fostering resolution before the claim advances to
arbitration. The court then found that no rule
existed that would bar the Organization from
documenting the conference for the first time at
arbitration. The court noted that the Carrier could
not claim prejudice by the tardy submission of the
evidence, particularly since it did not! raise its
objection until the eve of arbitration. The Court
of Appeals called the district court's decision
"thoughtful," but reversed it.
April 5,
2008. BLET v. CSXT, No. 07-12624 (11th
Cir., Apr. 4, 2008)
On
June 2, 2004 PLB 5959 sustained a claim for
reinstatement on behalf of a dismissed employee,
directing the Carrier to comply with the Award
within 30 days. The Carrier reinstated the
employee, but did not pay him back wages for the
period of his dismissal. The Organization sent
several letters to the Carrier demanding back pay,
but the Carrier took the position that the Award did
not include back pay. On February 9, 2006 the
Organization asked the Board for an interpretation
of the back pay question. The Board, on April 7,
2006, clarified that the Agreement required back pay
under these circumstances, even though the Award did
not expressly provide for them. On August 1, 2006
the Organization filed a petition with the district
court for enforcement of the Award. The court
granted the Carrier's motion to dismiss because the
two year statute of limitations barred the
Organization's petition for enforcement. The court
held ! that the two year period began on July 3,
2004, the first day after the expiration of the
Board's order to comply. The court also decided
that the Board's issuance of an interpretation did
not toll the statute of limitations. Accepting both
points, the Eleventh Circuit affirmed.
May 22, 2007.
NetJets Aviation, Inc. v. International
Brotherhood of Teamsters, Airline Division,
No. 06-3851 (6th Cir., May 15, 2007)
The Sixth Circuit, declining the
decide whether an RLA arbitration award may be
overturned on public policy grounds, upheld the
award on the basis that it would survive a public
policy challenge if one were permissible. The
Carrier had dismissed an airline pilot who produced
a video showing a pilot taking rifle shots at a
Carrier issued DVD promoting a tentative agreement
with the IBT. The claimant, who opposed the TA, was
the chairman of the union communications committee
and posted a link to the video on an online bulletin
board accessible to NetJets pilots. The System
Board reinstated the claimant without pay, holding
that the video was part of an internal debate on the
merits of the tentative agreement, and the Carrier's
decision to terminate the claimant was an
over-reaction. The District Court (S.D. Ohio) had
held that public policy review is not permitted
under the Railway Labor Act. Although some circuits
(8th and 11th) have permitted such review, the 6th
has not yet addressed the question.
March 31,
2007. Northwest Airlines v. Assn of Flight
Attendants, et al., No. 06-4371 (2nd Cir., March 29,
2007)
Describing the
intersection of the Railway Labor Act, the
Norris-LaGuardia Act and the Federal Bankruptcy
Code as "a peculiar corner of our law more evocative
of an Eero Saarinen interior of creative angularity
than the classical constructions of Cardozo and
Holmes," the Second Circuit upheld the District
Court's (SD NY) injunction barring the AFA and its
members from engaging in a work stoppage after the
Carrier rejected the collective bargaining agreement
under the authorization of the Bankruptcy Court.
The Bankruptcy Judge had denied NWA's motion to
enjoin AFA's strike actions (CHAOS) on the basis
that unilateral action by the Carrier begets
self-help by the Organization, but the District
Court reversed and granted a preliminary injunction,
holding that the Organization could get to self-help
only by exhausting the Section 5 and 6 processes of
the RLA. The Court of Appeals affirmed, but ruling
that Section 2 (First) of the RLA forbids an
immediate strike when a bankruptcy court approves a
debtor-carrier's rejection of a collective
bargaining agreement that is subject to the RLA and
permits it to impose new terms, and the propriety of
that approval is not on appeal. The Circuit Court's
conclusions are summarized as "(1) Northwest's
rejection of its CBA after obtaining court
authorization to do so under 11 U.S.C. Sec. 1113
abrogated (without breaching) the existing
collective-bargaining agreement between the AFA and
Northwest, which thereafter ceased to exist; (2)
Northwest's abrogation of the CBA necessarily
terminated the status quo created by that agreement,
after which termination both the RLA's explicit
status quo provisions and the implicit status quo
requirement of Section 2 (First) ceased to apply;
but (3) the AFA's proposed strike would, at present,
violate the union's independent duty under the RLA
to 'exert every reasonable effort to make . . . [an]
agreement[ ],' 45 U.S.C. Sec. 152 (First), and thus
may be enjoined." (Expect a petition for en
banc review. It is not likely this will be the
last we hear of this matter. Stay tuned. ed.)
March 5, 2007. BMWE, et al. v. CSX, et al., No. 06-2744 (7th Cir.,
March 2, 2007)
In an action brought by twelve unions against five carriers, the
Seventh Circuit affirmed the decision of the Northern District of Illinois that
the carriers may not require bargaining unit employees to take paid vacation or
personal leave when they take FMLA leave. (Sick leave was not addressed in
this decision.) Although the FMLA permits an employee to substitute paid leave
for FMLA leave, and permits an employer to require it, the court held that "the
carriers cannot require substitution without complying with procedures set out
in the RLA. Using these procedures, the carriers can bargain for
substitution provision." The court specifically noted the National
Vacation Agreement, which gives employees the right to select their vacation
periods in seniority order. It concluded that "the right to time one's
vacation and, to perhaps a slightly lesser degree, personal leave days, is a
hard-won right of railroad workers." (B.E.S.)
The court's opinion is available at
http://caselaw.lp.findlaw.com/data2/circs/7th/062744p.pdf
February 14, 2007.
Black v. Surface Transportation Board, No.06-3045 (6th Cir., February 9, 2007)
Issues: Petition
challenging the respondent-Board’s
decision affirming an arbitrator’s
ruling denying the petitioners’ relief
under a railroad merger labor protection
agreement; Chicago & N.W. Transp.
Co. – Abandonment (Lace Curtain)
(Interstate Commerce Commission – ICC);
The deferential Lace Curtain
standard of review for arbitration
awards;
New York Dock Ry-Control-Brooklyn
E. Dist. Terminal (ICC); Disputes
arising from application of the
New York Dock conditions
subject to binding arbitration;
International Bhd. of Elec. Workers v.
ICC (DC Cir.); Railway Labor
Executives Ass’n v.
United States (DC Cir.);
Administrative Procedures Act (5 USC §
706(2)(A) and (E)); Motor Vehicles
Mfrs. Ass’n v. State Farm Mut. Ins. Co.;
Film Transit, Inc. v. ICC; Request
for the court to “directly review the
arbitrator’s decisions” under the
Steelworkers Trilogy test
Court:
U.S. Court of
Appeals Sixth Circuit
Case Name:
Black v. Surface
Transp. Bd.
e-Journal Number:
34867
Judge(s):
Sutton, Ryan,
and Batchelder
Concluding the
respondent-Board’s decision to uphold
the arbitration award denying
petitioners’ claim for relief under a
railroad merger labor protection
agreement survived “arbitrary and
capricious” review, the court denied the
petition for review of the Board’s
decision. In 1979 the ICC approved
intervenor-Grand Trunk Western’s
acquisition of two other railroad
companies, conditioned upon Grand
Trunk’s adoption of several
labor-protective agreements, which Grand
Trunk and the affected railroad unions
incorporated into a master agreement.
Grand Trunk also entered into separate
working agreements with each of the
unions. In 2004, Grand Trunk abolished
seven “carmen” positions at its
Toledo, Ohio railyard and offered
each of the displaced carmen four
options pursuant to a provision of the
applicable working agreement.
Petitioners, two of the carmen, rejected
those options and sought to be placed on
an extra board at the Toledo railyard,
contending the master agreement
prohibited Grand Trunk from transferring
them to another location and another
agreement required Grand Trunk to place
them on an extra board because their
positions were abolished. A divided
three-member arbitration panel denied
petitioners’ claim, and the Board (the
successor agency to the ICC) denied
petitioners’ appeal. The court concluded
the arbitration panel, faced with an
ambiguous provision in the
labor-protective conditions, properly
referred to the parties’ past practice
and the
New York Dock
principles in
deciding petitioners lost their benefits
when they refused to fill vacancies in
the rail system.
Full text opinion at
http://www.michbar.org/opinions/us_appeals/2007/020907/34867.pdf
From State Bar of
Michigan E-Journal, contrib. by S.T.D.
January 18, 2007.
Norfolk Southern Ry. Co. v. Sorrell, No. 05-746
(Sup. Ct., January 10, 2007)
While this is not an arbitration
case, it is not often that the Supreme Court rules
in an FELA case. In a case arising in Missouri, the
trial court applied different causation standards to
the railroad's negligence and the employee's
contributory negligence. The railroad's negligence
is measured by whether the negligence contributed in
whole or in part to the injury, while the employee
is contributorily negligent if his negligence
directly contributed to cause the injury. The
Court, in a unanimous decision, agreed with the
Carrier and held that the standards must be the
same. The Court also rejected the Carrier's plea
that it state what the single standard should be
inasmuch as that additional question was "smuggled"
into the case after certiorari was granted. Justice
Souter, with Justices Scalia and Alito concurring,
opined that the additional question should be
addressed, thereby prompting a separate concurring
opinion by Justice Ginsburg that the Court has
already defined what a plaintiff must prove to
warrant submission of an FELA case to a jury. (B.E.S.)
August 22, 2006. Crawford v. Indiana Harbor Belt, No.
05-2825 (7th Cir., August 23, 2006)
Plaintiff, a black female, was fired from her job as
a conductor after eight reprimands during her first
year of employment. In an EEO action, she argued
she was treated more harshly than white male
conductors with similar work records. Judge Posner
explains the difficulty in determining which
employees are similarly situated for purposes of
evaluating disparate treatment claims. The court
upheld the district court's grant of summary
judgment in favor of the railroad because the
plaintiff could not show she was treated worse than
nonminority workers who were comparable to her in
every respect. (B.E.S.)
August 22, 2006.
BMWE v. Union Pacific, No. 05-1511 (10th Cir.,
August 11, 2006)
An arbitration board chaired by
Gerald Wallin had determined that the Carrier's
purchase of pre-fabricated rail panels violated the
scope rule of the agreement between the BMWE and the
UP Proper. Later, a board chaired by Herbert
Fishgold reached the same conclusion with respect to
the purchase of pre-plated rail ties. When the
Carrier later was found to be using purchased
pre-plated ties in performing track work, the BMWE
filed a lawsuit to enforce the Fishgold Award. The
District Court of Colorado dismissed the
Organization's action upon the Carrier's petition
and further granted the Carrier's request for a
preliminary injunction prohibiting the BMWE from
striking, but conditioned the injunction upon the
matter being remanded to the Fishgold Board. The UP
appealed that portion of the Court's decision
requiring the dispute be heard by the Fishgold
Board.
The Tenth Circuit disagreed
with the District Court's rationale that the
establishment of a new arbitration panel
would not be familiar with the issues and
might lead to a conclusion contrary to those
of the Wallin and Fishgold Boards. While
the Circuit Court deemed the new dispute to
be similar to the earlier cases, it said "it
is by no means identical." The Circuit
Court then held the District Court was
without jurisdiction to remand the case to a
particular arbitral panel. It wrote, "[I]t
is clear that Congress, in enacting the RLA,
intended to outline the exclusive means for
parties to resolve so-called minor
disputes. Were we to conclude that a
district court could select who it believes
would be best suited to resolve a particular
dispute, we would effectively undermine the
RLA and act contrary to Congressional
intent. In addition to the RLA itself, [BLE
v. MKT, 363 U.S. 528 (1960)] implicitly, if
not explicitly, prohibits a district court
from choosing who should arbitrate a minor
dispute."
The Court reversed the
granting of the anti-strike injunction and
remanded it to the District Court with
directions to grant the motion without the
condition that the parties submit the
dispute to the previously-formed arbitration
panel.
July 25, 2006.
UTU and William S. Janes v. CSXT, No.
4:04-cv-0227-DFH-WGH (S.D. Ind., July 20, 2006)
In granting UTU's motion for summary
judgment and denying CSX's, the Indiana District Court
held that once the PLB award was signed by 2 members and
the 15-day contingency on the neutral member's signature
ran, it was final despite a later executive session and
revised award by the neutral member.
The neutral member had issued a "proposed
award" on May 27, 2003, conditioning the effectiveness
of his signature on "there being no request for
executive session within fifteen days of receipt of the
award." The UTU member signed and forwarded the
award to the CSX. The Carrier's representative
never signed and did not request an executive session
until more than 15 days after she received the signed
proposal and after the Organization's member had signed.
There was nevertheless an executive session in July of
2003 after which the neutral sent a revised award on
April 27, 2004, this time finding for CSX. The
Organization member objected, saying the May 2003 award
was valid after he had signed it and that the July 2003
executive session provided no new facts as a basis for
changing the decision. The Court agreed, saying
the contingency the neutral member placed on the
effectiveness of his signature (15 days passing without
a request for an executive session) had expired and
there were the required two signatures on the award.
What was issued originally was not a "draft" award but a
"proposed" award: "It was a signed award that the
neutral would disavow only if a condition were met, and
the undisputed fact show [sic] that the condition was
not met." The Court also rejected CSX's "best
argument" which was that the UTU waived its right to
enforce the award by failing to object to the executive
session request and failing to insist on enforcement of
the 2003 award until after the unsigned revised draft
award was sent in April 2004. It gave three
reasons: (1) By the time UTU supposedly waived its
rights, it had already won a valid and binding award;
(2) UTU was well within the 2 year statute of
limitations, which started to run 45 days after the UTU
member signed the May 27, 2003 award; and (3) there was
no evidence UTU intentionally waived its right or that
CSX was prejudiced by the Organization member's
attendance at the executive session. (A.D.S.)
Full text (pdf)
July 15, 2006.
BLET v CSXT and UTU, No. 05-14959 (11th Cir., July
14, 2006)
The
Florida District Court, accepting the position favored
by the BLET, had set aside an SBA award in a seniority
list dispute between the Carrier and the two
Organizations, in which the UTU had prevailed. The
Court of Appeals reversed, holding that the lower
court's disagreement with the Board's decision did not
fit within the "extremely narrow" scope of judicial
review of awards under the RLA. The court wrote,
"By the time of this arbitration, the parties could not
even stipulate to the phrasing of the question(s)
presented to the Special Board of Adjustment for
decision. The arbitrator had to sort through
volumes of claims supporting competing views of
seniority rights in order to understand the claims.
It is apparent that no solution to the seniority dispute
could have satisfied both unions. Technology had
rendered obsolete many of the jobs of senior trainmen,
and the employer was obligated to move them toward
engine crew jobs consistent with realistic needs and
qualifications, and in compliance with the relevant
collective bargaining agreements made in an earlier
time. Faced with the polarized positions of the two
unions, the arbitrator attempted to find the more
reasonable, to him, of several imperfect choices.
No arbitrator, even one gifted with Solomonic wisdom,
could have harmonized the terms of the relevant
bargaining agreements. And for that reason, as
demonstrated by the competing claims here, arbitration
law wisely relies upon the experience, perspective,
understanding of industrial practice, and knowledge of
logistics and economics, of the officer chosen as
arbitrator." (B.E.S.)
This
decision may be found at
http://caselaw.lp.findlaw.com/data2/circs/11th/0514959p.pdf
May 22, 2006.
IBEW v. CSX and BRS, No. 05-2590 (7th Cir., May 4,
2006)
CSX chose
to assign certain signal system repair work to members
of the Electrician craft. The Brotherhood of
Railroad Signalmen filed a claim, asserting it was their
work. The claim was presented to PLB 6525, where
the Chair, M. David Vaughn, gave third party notice to
the IBEW. The IBEW asserted the Board had no
jurisdiction to interpret their agreement because the
IBEW was not a party to the arbitration. The Chair
ruled that IBEW could present its case, but could not be
a member of the Board. The Board sustained the
claim on behalf of the Signalmen. The Electricians
appealed. The court found that the Act clearly and
unambiguously states that Public Law Boards are composed
of two partisan members and a neutral. It further
held that the NRAB's authority over third party disputes
also applies to Public Law Boards. Finally, it
held that the Board afforded the IBEW its due process
rights by allowing it to be heard, noting "no one
contends that the arbitrator was anything but
impartial." (B.E.S.)
This
decision may be found at
http://caselaw.lp.findlaw.com/data2/circs/7th/052590p.pdf
May
22, 2006. Teamsters v. United Parcel Service,
No. 05-5478 (6th Cir., April 26, 2006)
The collective bargaining agreement
between the Teamsters and UPS created safety committees
with union and management members. When the
Teamsters hired a person to serve on a safety committee,
UPS refused to acknowledge him because he was not an
employee of the Carrier. The Teamsters argue this
was a violation of Section 2 of the RLA because UPS
interfered with its employees' choice of representation.
The Sixth Circuit upheld the district court's dismissal
on the basis that the Carrier has shown that its action
was "arguably justified by the terms of the parties'
collective-bargaining agreement." The court also
held that the Teamsters employee was not a
"representative" within the meaning of Section 2, Third
because the safety committee was not a part of the
collective bargaining process. The court concluded
that this was a dispute growing out of an interpretation
of the collective bargaining agreement, and therefore a
minor dispute subject to mandatory arbitration. In
its decision, the court gives a good history of the
Railway Labor Act and the dispute resolution processes
in both the railroad and airline industries. (B.E.S.)
The decision may be found at
http://caselaw.lp.findlaw.com/data2/circs/6th/055478p.pdf
March 29, 2005. Bloemer,
et al. v. Northwest Airlines, Inc., No. 03-3968 (8th
Cir., March 25, 2005)
The Eighth Circuit affirmed
the District Court's dismissal of an action by retirees
and surviving spouses against the Carrier stemming from
the 2001 demutualization of Prudential Mutual Insurance
Company. In that transaction, Northwest received 1.5
million shares of Prudential Financial in exchange for its
membership interests. Plaintiffs contend the shares
should have gone to them through the collectively
bargained retirement plan. The District Court had
held that it lacked subject matter jurisdiction inasmuch
as the RLA required arbitration over the ownership of the
shares.
The Court of Appeals agreed
that the ownership of the membership interests, and then
the shares for which they were exchanged, is a question
that involves an interpretation of the CBA, of which the
retirement plan is a part, that must be submitted to
arbitration. When the plaintiffs argued that retired
pilots and spouses of terminated and retired employees, as
well as spouses of deceased pilots were being denied a
forum, the Eighth Circuit said RLA preemption includes
suits by terminated and retired employees, as well as
spouses of deceased employees. It cited Pa. R.R.
Co. v. Day, 360 US 548, 552 (1959) and Jenisio v.
Ozark Airlines, Inc. Retirement Plan, 187 F.3d 970 (ith
Cir. 1999). (Ed. note: In P.A. R.R.,
the Supreme Court held the NRAB's jurisdiction over a
claim survives the claimant's retirement, and the Board
has exclusive primary jurisdiction.) (B.E.S.)
You may find the Eighth
Circuit's opinion at http://caselaw.lp.findlaw.com/data2/circs/8th/033968p.pdf
The Supreme Court's decision in Pa. R.R. may be
found at http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/360/548.html
December 5, 2004. Martin
v. American Airlines, Inc, et al., No. 04-1061 (8th
Cir. November 30, 2004)
The Eighth Circuit Court of Appeals
upheld the Missouri District Court's grant of summary
judgment in favor of defendant airline and the Transport
Workers Union in action for breach of duty of fair
representation and wrongful termination. The
plaintiff had been dismissed for falsifying his time
records and the union handled a grievance, but elected
not to pursue it to arbitration. The court did not
find the union's conduct was either arbitrary,
discriminatory or in bad faith (citing Vaca v. Sipes,
386 U.S. 171 (1967)).
As for the wrongful discharge claim, the court found
that the system board of adjustment had exclusive
jurisdiction and that none of the exceptions to RLA
preemption applied. The court noted that
plaintiff, unlike a railroad employee, did not have a
right to pursue his case to arbitration individually.
(B.E.S.)
The court's opinion may be found at http://caselaw.lp.findlaw.com/data2/circs/8th/041061P.pdf
November 20, 2004. Continental
Airlines v. International Brotherhood of Teamsters,
No. 04-20136 (5th Cir., November 15, 2004)
The Fifth Circuit Court of
Appeals considered an award of a System Board interpreting
a last chance agreement (LCA) that incorporated conditions
set by the Carrier's EAP. One such condition
required the Claimant to notify the EAP staff if his
doctor prescribed any medication containing alcohol.
Otherwise, any use of alcohol was prohibited.
With the approval of a
member of his doctor's staff, Claimant took an
over-the-counter cough medicine that contained
alcohol. This was discovered in a
"no-notice" test, and Claimant was dismissed for
violating the terms of the LCA. The System Board
overturned the dismissal, holding that the approval to
take the medicine, while not qualifying as a formal
written prescription, "met the letter and
spirit" of the EAP agreement. The District
Court of Texas concurred and granted summary judgment in
favor of the Organization.
The Court of Appeals
reversed and rendered summary judgment in favor of the
Carrier, holding the System Board's interpretation that
the approval by the doctor's office was the same as a
doctor's prescription was not an arguable construction of
the EAP agreement.
You may read the Fifth
Circuit's opinion, which includes a discussion of the
standards of review of arbitration awards that interpret
LCAs, at http://caselaw.lp.findlaw.com/data2/circs/5th/0420136p.pdf
(B.E.S.)
May 5, 2004. BNSF, et
al. v. BLE, No. 03-3626 (7th Cir., May 4, 2004)
When the Award on remote
control locomotive operations was issued, the BLE asked
the District Court of the Northern District of Illinois to
dissolve the preliminary injunction that it had issued at
the Carriers' request in response to the BLE's threat to
strike. Finding there was no longer the necessity to
maintain the status quo pending resolution by the Special
Board of Adjustment, the District Court entered an order
dissolving the preliminary injunction and dismissing the
Carriers' action. The Carriers (BNSF, Conrail, CSX,
KCS, NS and UP) appealed.
Although the BLE has
demonstrated its opposition to the Award by lobbying
against remote control, the Court of Appeals found that
the Organization has complied with the Award and there is
no longer a threat of strike. Thus, the Court found
the Chicago River exception to the Norris-LaGuardia
Act's prohibition of interference by the federal courts no
longer applies. It affirmed the decision of the
District Court.
You may read the Court's
opinion at http://caselaw.lp.findlaw.com/data2/circs/7th/033626p.pdf
You may read the Remote Control Award and responses
thereto on the News page of the NARR website. (B.E.S.)
March 27, 2004. Kinross
v. Utah Ry. Co., No. 02-4192 (10th. Cir., March 22,
2004)
The plaintiff,
a member of the UTU, had been dismissed for having
railroad ties belonging to the Carrier for which he did
not have a "notice of sale" or a
"certificate of purchase." According to
the plaintiff, a section foreman told him he could take
the ties in exchange for a six-pack of Pepsi. The
plaintiff's dismissal was upheld by a Special Board of
Adjustment, and he sought judicial review of the Award,
asserting the Board (1) failed to confine itself to
matters within its jurisdiction; (2) failed to afford him
due process; and (3) acted in a fraudulent and corrupt
manner. The Utah District Court found that plaintiff
did not receive due process because the Board improperly
considered testimony and portions of the Carrier's
submission that implied he was involved in a larger
conspiracy to steal ties. The District Court granted
summary judgment in favor of the plaintiff and vacated the
Board's Award. It further ordered arbitration
proceedings before an Adjustment Board with different
members with stipulated facts excluding any reference to
ties reported missing at the time of the alleged
conspiracy. If the parties could not agree on
stipulated facts, the court ordered the Board to conduct a
de novo hearing, excluding any reference to the
conspiracy.
The
Circuit Court reversed, holding that the Supreme Court, in
UPRR v. Sheehan, recognized only the three bases set out
in Section 3 First (q) for review of an award. (The
Circuit Court acknowledged there is a split in the
circuits; the Second, Fifth, Seventh, Eighth, and Ninth
Circuits having held that due process claims may give rise
to a review by a federal court.) The Court found,
therefore, that the District Court was precluded from
reviewing the Award on the basis of a due process claim,
and exceeded its subject matter jurisdiction by doing
so. Because the District Court had not addressed the
plaintiff's other two claims, the case was remanded for a
determination on those issues. (B.E.S.)
You
may read the full text of the court's decision at http://laws.lp.findlaw.com/10th/024192.html
February 13, 2004. Brotherhood
of Maintenance of Way Employees v. Union Pacific Railroad
Company, No. 03-3083 (7th Cir., Feb. 12, 2004)
The
Seventh Circuit upheld a district court's decision to deny
the BMWE's claim that the UP violated Section 2, First of
the RLA (duty to settle disputes) when it refused to enter
into an expedited arbitration before an SBA to interpret
an agreement the parties had reached to settle a
contracting out dispute. UP agreed that the dispute
should be arbitrated, but refused expedited
arbitration. The BMWE argued expedited arbitration
could be completed in a few months, rather than more than
three years under the usual process. The court held
that the duty to settle disputes "requires that a
party make every reasonable effort, not every conceivable
one," citing United Air Lines v. IAM&AW,
243 F.3d 349 (7th Cir. 2001). It said a party
already engaging in good-faith negotiation need not
"participate in a dispute resolution that directly
circumvents a contract voluntarily entered into by both
parties" or the RLA.
The
court also upheld the district court's injunction against
the BMWE from striking over this dispute. Finding no
evidence of bad faith on the part of the UP, the court
said it was entitled to an injunction, and Section 8 of
the Norris-LaGuardia Act did not bar such action. (B.E.S.)
You
may read the full text of the court's decision in a pdf
file at http://caselaw.lp.findlaw.com/data2/circs/7th/033083p.pdf
December 10, 2003. Steward,
Schriner, et al. v. Mann, Dalland, et al., No.
02-15185 (11th Cir. Dec. 4, 2003)
The Eleventh Circuit upheld
a Florida District Court decision vacating an airline
arbitration award because personal notice of the hearing
had not been given to a group of pilots who would have
been adversely affected by the arbitration decision,
thereby making them employees "involved" in the
dispute under Section 3, First (j). The Court relied
upon the Supreme Court's decision in International
Association of Machinists v. Central Airlines, 372
U.S. 682 (1963) in concluding that the notice provisions
of Section 3 apply to airline arbitration notwithstanding
the Act's express exclusion of Section 3 in airline
matters. This was an unusual case where two groups
of pilots were challenging the carrier's seniority
rankings. One group progressed their grievance to
arbitration before a sole arbitrator, who ruled in their
favor to the detriment of the second group. Although
the Union was present at the arbitration, the pilot group
was represented by its own counsel. The Union did
not serve in a representative capacity for the pilots who
were not present at the arbitration, although they were
members of the bargaining unit. The dispute was
remanded to a system board of adjustment, rather than to
the arbitrator who rendered the initial decision.
The Court ruled that the Act and the CBA required the
submission of disputes to a system board.
(B.E.S.)
You may find the complete
decision (a pdf file) at http://caselaw.lp.findlaw.com/data2/circs/11th/0215185p.pdf
December 17, 2002. Finley Lines Joint Protective Board Unit 200 (BRC-TCIU)
v. Norfolk Southern, No. 02-1174 (8th Cir. Dec. 13, 2002)
The Claimant was charged with giving false deposition
testimony. At his investigation, he admitted
making the statement, but asserted it was true. A
polygraph report attesting to Claimant's truthfulness
was accepted into evidence by the hearing officer.
The Carrier subsequently dismissed the Claimant, but
told him the polygraph report was being deleted from the
hearing record because of the Employee Polygraph
Protection Act.
The PLB upheld the dismissal, finding that Claimant
was not severely prejudiced by the exclusion of the
polygraph tests results. The Board further found
the results were irrelevant because such testing was
not probative.
The District Court reversed the Board, holding it
exceeded its jurisdiction by excluding the polygraph
report. It directed that Claimant be reinstated
with pay for time lost. The Eighth Circuit
reversed, noting that the Board received the polygraph
report, but chose to give it no weight, which it was
free to do under the Act.
In a footnote, the Circuit Court stated it would have
reversed the District Court's remedy even if it had
not reversed on the merits, because the appropriate
action would have been to vacate the Award and remand
it to the Board. (B.E.S.)
October
22, 2002. Ron Thomas, et al. v. Union Pacific
Railroad, No. 01-2631 (8th Cir. Oct. 21, 2002)
The Eighth Circuit dismissed a claim by former Union Pacific carmen that
they were improperly not rehired. The plaintiffs
had worked at Des Moines when their jobs were
transferred to Proviso (Chicago area). They
elected to take a severance from the Carrier rather than
accept jobs at Proviso or remain on the Des Moines
roster until jobs were available there. In
accepting the severance, they released the Carrier from
all claims arising out of their employment. When
the Carrier began to hire new employees at Des Moines,
it refused to hire the plaintiffs, who alleged they were
not rehired solely because they were whistleblowers,
having complained of safety violations when they worked
at Des Moines.
The court rejected the UP's argument that
the case was pre-empted by the RLA because it could be
decided without involving the collective bargaining
agreement. Instead, it held that the release
signed by the plaintiffs effectively precluded them from
asserting protection arising from whistleblower
activities occurring during their earlier employment.
(B.E.S.)
October
20, 2002. Brotherhood of Maintenance of Way
Employes v. Terminal Railroad Association of St. Louis,
No. 01-3775EM (8th Cir. Oct. 15, 2002)
The 8th Circuit Court of
Appeals upheld an arbitration award where the Public Law
Board accepted a document from the Organization
summarizing its arguments and proffering awards that had
not been cited in its submission. The claim had
first been presented to the 3rd Division, but was
removed to a PLB after it had been pending at the NRAB
for more than a year. In removing the case, the
parties agreed that the record before the NRAB could not
be supplemented. The court noted that the
substance of the document could have been presented
orally to the PLB, and held that the parties
were free to supplement the record by citing recent
awards. The court's decision may be found at http://caselaw.lp.findlaw.com/data2/circs/8th/013775p.pdf
(B.E.S.)
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