Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02531-JLK

Document 64

Filed 10/22/2007

Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:01-cv-2531-JLK GENERAL COMMITTEE OF ADJUSTMENT GO-245 OF THE UNITED TRANSPORTATION UNION, Plaintiff, v. BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, et al., Defendants. ______________________________________________ Civil Action No. 1:07-cv-01889-MSK-MEH BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN, a Division of the Rail Conference of the International Brotherhood of Teamsters, Petitioner, v. BNSF RAILWAY COMPANY, et al. Respondents. ______________________________________________________________________________ MEMORANDUM OF PETITIONER BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN IN OPPOSITION TO MOTION OF RESPONDENT UTU GO-245 TO CONSOLIDATE ______________________________________________________________________________ Petitioner Brotherhood of Locomotive Engineers and Trainmen, a Division of the Rail Conference of the International Brotherhood of Teamsters ("BLET"), hereby files its Opposition to the Motion to Consolidate filed by Respondent General Committee of Adjustment GO-245 of the United Transportation Union ("UTU GO-245"). UTU GO-245 seeks to consolidate

Case 1:01-cv-02531-JLK

Document 64

Filed 10/22/2007

Page 2 of 11

BLET's Petition action with Civil Action No. 01-cv-2531. By its Motion to Consolidate, UTU GO-245 is attempting to sidestep the established requirements of the Railway Labor Act ("RLA"). The Motion should be denied because the two actions are legally separate and distinct under the RLA and must be treated as such. As an initial matter, the case previously filed by UTU GO-245 is no longer properly within the jurisdiction of the Court. The dispute at issue in CA 01-cv-2531 was determined by the Court to be a minor dispute and was thereafter submitted to arbitration. As a result, the Court lacks further jurisdiction over it. Furthermore, even were that case still live and within the Court's jurisdiction, the present Petition action should not be consolidated with it because this action is subject to standards wholly separate and different from those that applied to the previous case. 1. The Case With Which UTU GO-245 Seeks Consolidation is No Longer Within the Jurisdiction of the Federal Courts

UTU GO-245 has no grounds for seeking consolidation of BLET's Petition action with Civil Action No. 01-cv-2531 because that previous case is no longer a live action over which this Court has jurisdiction. The Court has already determined that the dispute at issue in CA 01-cv2531 is a "minor dispute" under the Railway Labor Act and ordered the dispute arbitrated. The dispute has been arbitrated by Special Board of Adjustment No. 1155, which has issued an Award. As a result, the Court lacks any continuing jurisdiction over the dispute that gave rise to the previous case. Since that case no longer presents a live controversy, it is improper for UTU GO-245 to seek to consolidate the present action with it. Disputes arising under the Railway Labor Act ("RLA") are classified as either "major" or "minor." Major disputes are those "over the formation of collective agreements or efforts to

-2-

Case 1:01-cv-02531-JLK

Document 64

Filed 10/22/2007

Page 3 of 11

secure them. They arise where there is no such agreement or where it is sought to change the terms of one, and therefore the issue is not whether an existing agreement controls the controversy." Elgin, Joliet & Eastern Railway Co. v. Burley, 325 U.S. 711, 723 (1945). Where a major dispute exists, the RLA requires the parties to engage in a prolonged major dispute resolution process. Federal courts have jurisdiction to issue an injunction in a major dispute requiring preservation of the status quo pending completion of the major dispute resolution process. Consolidated Rail Corp. v. Railway Labor Executives' Assn., 491 U.S. 299, 302 (1989) ("Conrail"). Minor disputes, in contrast, "contemplate the existence of a collective agreement already concluded or, at any rate, a situation in which no effort is made to bring about a formal change in terms or to create a new one. The dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case." Burley, 325 U.S. at 723. Pursuant to Section 3 of the RLA, minor disputes that are not resolved in direct negotiations between the parties are submitted to the National Railroad Adjustment Board or to other adjustment boards for final and binding resolution in a manner akin to arbitration. See 45 U.S.C. §3, First and Second. Under the RLA, courts have no jurisdiction over minor disputes. Rather, Section 3 of the RLA gives exclusive jurisdiction of minor disputes to adjustment boards. Conrail, 491 U.S. at 303-04. When it filed suit in Case No.01-cv-2531, UTU GO-245 itself asserted that the dispute at issue therein was a minor dispute subject to the exclusive jurisdiction of an adjustment board. The gravamen of its Amended Complaint in that action was that whether "Article 50 of the Schedule Agreement for the Kansas City Consolidated Yards required the approval of GO-245 -3-

Case 1:01-cv-02531-JLK

Document 64

Filed 10/22/2007

Page 4 of 11

before the BNSF could enter into the Flow-Back Agreement insofar as that agreement affects Kansas City Consolidated Yards [] raises a contract interpretation issue that is withing [sic] the exclusive jurisdiction of adjustment boards established under Section 3 of the Railway Labor Act." Amended Complaint, ¶ 21 (emphasis added). The Court agreed with UTU GO-245's position that the dispute was a "minor" one under the RLA. It issued an Order on June 28, 2005, finding that "the parties' disagreement regarding the meaning and application of Article 50 of the Consolidated Yards Scheduling Agreement is a minor dispute subject to resolution before the appropriate RLA adjustment board." June 28, 2005, Order at 8. As the Court explained, the case turns on whether plaintiff correctly asserts that the Flow-Back Agreement "affects" the Consolidated Kansas City Yard within the meaning of Article 50 of the Consolidated Yards Schedule Agreement and whether Article 50 therefore required Defendants BNSF and GO-009 to obtain GO-245's approval before they entered into the Flow-Back Agreement. As such it is a dispute involving the interpretation and application of the Consolidated Yards Schedule Agreement, an existing collective bargaining agreement, which by definition is a minor dispute to be resolved by the appropriate RLA adjustment board. Id. at 8-9. Based on the finding that the action involved a minor dispute, the Court's Order required the dispute to be arbitrated before an adjustment board and required GO-009 to participate in that arbitration. Id. at 14.1 Once the Court issued its order, the RLA did not permit UTU GO-245 to obtain further action from the Court in regards to that dispute, unless the railroad refused to arbitrate. But BNSF did arbitrate that dispute "before the appropriate RLA adjustment board." Therefore, by its Motion to Consolidate, UTU GO-245 it is trying to obtain additional relief that the RLA does not permit.
1

The Court initially dismissed the action in CA 01-cv-2531 on April 10, 2006 (CA 01cv-2531, Docket No. 42). However, on December 19, 2006, at the specific request of UTU GO245, it vacated the order of dismissal and reinstated its June 28, 2005 Order requiring that the dispute be submitted to arbitration. (CA 01-cv-2531, Docket No. 47). -4-

Case 1:01-cv-02531-JLK

Document 64

Filed 10/22/2007

Page 5 of 11

Once a Court has determined that an action involves a "minor dispute" under the RLA, the Court no longer has jurisdiction over the dispute. The very fact that the dispute is a minor dispute means that it is within the exclusive jurisdiction of the adjustment board and that the Court therefore lacks jurisdiction over it. Conrail, 491 U.S. at 303-04. There are only three exceptions to the Board's exclusive jurisdiction over a minor dispute: (1) a Court that has found a dispute to be minor retains jurisdiction to issue an injunction barring the involved union from striking over the minor dispute, so as to preserve the jurisdiction of the adjustment board, Brotherhood of R. R. Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30, 39-42 (1957); (2) the Court issues an injunction against a strike and also enjoins the carrier to preserve the status quo pending arbitration in order to preserve the jurisdiction of the adjustment board, Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas Railroad, 363 U.S. 528 (1960); and (3) the Court retains jurisdiction to enforce compliance with its order to arbitrate. In CA 01-cv-2531, there was no strike threat and thus no basis for seeking an injunction. Moreover, the parties who were ordered to arbitrate their dispute did so, obviating any need for further Court involvement. Thus, once the Court found that the dispute at issue in CA 01-cv-2531 was a minor dispute subject to arbitration, its jurisdiction over the case ceased. Once a dispute has been determined to be a minor dispute subject to the exclusive jurisdiction of an adjustment board, a party cannot later seek to have it reclassified as a dispute over which the Court has jurisdiction. Chicago & North Western Transp. Co. v. Railway Labor Executives' Ass'n., 908 F.2d 144, 157 (7th Cir. 1990) ("Once a minor dispute, always a minor dispute."); CSXT v. UTU, 879 F.2d 990, 1003-05 (2nd Cir. 1989) (dispute over line sale that was found to be minor dispute remained minor dispute even after Board issued its Award); General -5-

Case 1:01-cv-02531-JLK

Document 64

Filed 10/22/2007

Page 6 of 11

Committee of Adjustment v. CSXT, 893 F.2d 584, 593 (3rd Cir. 1990) ("In addition, we see no merit in the Union's argument that the Supreme Court's opinion in Conrail gives the district court authority it should exercise to maintain jurisdiction in a minor dispute by staying its proceedings pending arbitration by the Board. The Court in Conrail adhered to the established major/minor categorization scheme and did not suggest that district courts should retain jurisdiction over disputes referred to the Board for arbitration."). But that is exactly what UTU GO-245 is doing here. Its motion to consolidate is premised on the faulty assertion that a question remains to be resolved by the Court in CA 01-cv-2531. But there is nothing left in that action for the Court to resolve. The only question that the Court had jurisdiction to answer was whether the dispute at issue was major or minor. Because the dispute at issue in that case was found to be a minor one and was thereafter submitted to arbitration, there is no longer any issue in that case over which the Court has jurisdiction. Accordingly, there is no basis for consolidating the current Petition action with that previous case. 2. The Motion to Consolidate Should Be Denied Even if There are Other Issues to be Resolved in Case No. 01-cv-2531

Even assuming, arguendo, there remains something to adjudicate in CA 01-cv-2531 that is within the Court's jurisdiction, there is still no valid basis for consolidating the present action with it. The minor dispute raised by UTU GO-245 in CA 01-cv-2531 concerned the meaning of Article 50; that was submitted to arbitration before Special Board of Adjustment No. 1155 ("SBA 1155"). SBA 1155 considered the minor dispute and rendered an award. In the Motion to Reopen that it filed in Case 01-cv-2531, UTU GO-245 has indicated that it believes BNSF is not complying with SBA 1155's Award and that it seeks to have the Court reopen that case in

-6-

Case 1:01-cv-02531-JLK

Document 64

Filed 10/22/2007

Page 7 of 11

order to resolve its dispute with BNSF regarding compliance with the Award. See ¶¶ 15-17 of Motion to Reopen (CA 01-cv-2531, Docket No. 50).2 But pursuant to the requirements of the RLA, UTU GO-245 is not entitled to have the carrier's compliance or non-compliance with the Board's Award determined in that manner. Rather, the current action initiated by BLET's Petition is the proper setting for UTU GO-245 to obtain a ruling as to whether the carrier is required to comply with the Award and, if it is, to obtain an order enforcing compliance with the Award. CSXT v. UTU, 879 F.2d at 1005. In seeking to consolidate BLET's Petition action with UTU GO-245's previous case, UTU GO-245 is attempting to avoid the statutorily-mandated process for obtaining compliance with an award issued by an adjustment board. RLA Sections 3, First (p) and (q) set forth a specific petitioning process that parties must use if they seek either enforcement or review of an adjustment board award. 45 U.S.C. §§ 153, First (p) and (q). A party such as UTU GO-245 that believes a carrier is not complying with a board's award is required to utilize that process if it wishes to have the board's order enforced. Pursuant to Section 3, First (p), "if a carrier does not comply with an order of a [board] within the time limit in such order, the petitioner, or any person for whose benefit such order was made, may file in the District Court . . . a petition setting forth briefly the claims for which he claims relief," which will then be considered by the Court. 45 U.S.C. § 153, First (p). Similarly, under Section 3, First (q), if a party "is aggrieved by any of the terms of an award or by the failure of the [board] to include certain terms in such award," that
2

Insofar as UTU GO-245 counsel may be raising new issues, such as whether the ebb and flow agreement between BNSF and BLET is being applied to the detriment of their client, that is an attempt to inject something wholly new into a lawsuit that this Court properly closed. Such post-judgment bootstrapping to introduce new legal and factual issues to revive a case should not be tolerated. -7-

Case 1:01-cv-02531-JLK

Document 64

Filed 10/22/2007

Page 8 of 11

party also must file a petition. 45 U.S.C. § 153, First (q). Petitions regarding the viability of a board's award are governed by a single set of standards, whether they seek enforcement or review of that award. 45 U.S.C. §§ 153, First (p) and (q). The viability of the award issued by SBA 1155 has been specifically raised by BLET in the present Petition action. Both UTU GO-245 and BNSF are parties to this action. Thus, if UTU GO-245 believes that BNSF is not complying with SBA 1155's Award, the proper approach for it to take is to Answer the Petition in the present action and file a cross-claim against BNSF pursuant to Federal Rule of Civil Procedure 13(g), seeking enforcement of the award. Instead, UTU GO-245 is trying to turn the RLA process for reviewing and enforcing awards on its head, by suggesting that BLET should be forced to address the viability of a board's award not through the statutorily-specified procedures of Section 3, First (q), but rather through the reopening of a case that was filed before any award was issued. There is simply no support for that contention. In its attempt to evade the mandates of RLA Section 3, First (p) and (q), UTU GO-245 also misrepresents the crux of the BLET's petition for review. BLET's present action is not an "opposition to GO-245's request for relief" in CA 01-cv-2531, as UTU GO-245 would have it. Rather, BLET's action is a stand-alone petition properly filed pursuant to RLA Section 3, First (q), to set aside an award that BLET contends is illegal. BLET has challenged the Award issued by SBA 1155 because the Board failed to comply with the requirements of the RLA and went beyond the Board's jurisdiction, which was limited to interpreting Article 50 of the Consolidated Yards Schedule. Pursuant to the order issued in CA 01-cv-2531 on June 28, 2005 (and reinstated on December 19, 2006 at UTU GO-245's request), the board to which UTU GO-245, UTU GO-009 -8-

Case 1:01-cv-02531-JLK

Document 64

Filed 10/22/2007

Page 9 of 11

and BNSF submitted their dispute was supposed to resolve "the dispute . . .regarding the meaning and application of Article 50 of the Consolidated Yards Schedule." But SBA 1155 did not confine itself to resolving the dispute over the meaning and application of that provision. Instead, in BLET's absence, it also addressed the meaning and application of a provision in a wholly separate agreement ­ a separate agreement to which BLET is a party but UTU, UTU GO245, and UTU GO-009 are not. The Board did so without affording BLET the opportunity to participate in the proceedings as a full party. BLET's Petition alleges that these illegal actions rendered the Board's Award invalid. BLET's allegations are directed not at the relief that UTU GO-245 sought in its previous case, but at the validity of the proceedings and the resulting Award of SBA 1155. Pursuant to RLA Section 3, First, BLET's allegations of invalidity must be resolved through the petition procedures established for the specific purpose of reviewing and enforcing adjustment board awards. And so, too, must UTU GO-245's allegations that the Award is valid and that BNSF has failed to comply with it. UTU GO-245's Motion to Consolidate is an improper attempt to evade these established processes. It should be rejected. CONCLUSION For the reasons set forth above, UTU GO-245's Motion to Consolidate should be denied. Respectfully submitted,

s/ Michael S. Wolly Michael S. Wolly Margo Pave ZWERDLING, PAUL, KAHN & WOLLY, P.C. 1025 Connecticut Avenue, NW Suite 712 Washington, DC 20036-5405 -9-

Case 1:01-cv-02531-JLK

Document 64

Filed 10/22/2007

Page 10 of 11

202-857-5000 Telephone 202-223-8417 Facsimile [email protected], [email protected] s/ Thomas B. Buescher Thomas B. Buescher BUESCHER,GOLDHAMMER, KELMAN & DODGE, P.C. 1563 Gaylord Street Denver, CO 80206 303-333-7751 Telephone 303-333-7758 Facsimile [email protected] Of Counsel: HAROLD A. ROSS, Interim Legal Coordinator 1370 Ontario Street Cleveland, Ohio 44113-1740 440-734-3754 Telephone 440-734-3754 Facsimile [email protected] Attorneys for Petitioner BLET CERTIFICATE OF SERVICE This is to certify that a copy of the attached Opposition was filed with the Court electronically via the Court's ECF-CM process which will serve a copy upon the following counsel of record: David Pryor Senior General Attorney BNSF Law Department 2500 Lou Menk, AOB-3 Fort Worth, TX 76131 Clint Miller, General Counsel UNITED TRANSPORTATION UNION 14600 Detroit Avenue Cleveland, OH 44107-4250 Walter J. Downing Hall & Evens, L.L.C. 1200 17th Street, Suite 1700 Denver, CO 80202 Richard Rosenblatt Richard Rosenblatt & Associates 8085 East Prentice Ave. Greenwood Village, CO 80111

John A. Edmond Guerrieri, Edmond, Clayman & Bartos, P.C. 1625 Massachusetts Ave. NW Suite 700 Washington, DC 20036 John O'B. Clarke, Jr. Highsaw, Mahoney & Clarke, P.C. 1050 17th Street NW Suite 590 Washington, DC 20036

Case 1:01-cv-02531-JLK

Document 64

Filed 10/22/2007

Page 11 of 11

Martin D. Buckley Michael J. Belo Berenbaum, Weinshienk & Eason, P.C. 370 Seventeenth Street, Suite 4800 Denver, CO 80202

s/ Michael S. Wolly

-11-