Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 1 of 20

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. __________________________________________________________________________ REPLY OF PLAINTIFF TO OPPOSITIONS TO MOTION TO REOPEN THE CASE AND TO SCHEDULE A STATUS CONFERENCE

On September 7, 2007, plaintiff General Committee of Adjustment GO-245 of the United Transportation Union filed a motion to reopen this case. Defendants BNSF Railway Company (BNSF),1/ United Transportation Union (UTU) and one of its General Committees of Adjustment, GO-009, and the Brotherhood of Locomotive Engineers &Trainmen2/ have filed responses to plaintiff's motion, arguing that the motion should be denied. This pleading is respectfully submitted by plaintiff in reply to those oppositions.

When this suit was filed, defendant BNSF was named Burlington Northern and Santa Fe Railway Company; it has since changed its name to BNSF Railway Company. After this suit was filed, the labor organization known as the Brotherhood of Locomotive Engineers merged into the International Brotherhood of Teamsters as a division within the Teamsters Rail Conference and is now named the Brotherhood of Locomotive Engineers & Trainmen (BLE&T), a Division of the Rail Conference of the IBT.
2/

1/

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 2 of 20

PRELIMINARY STATEMENT Defendants raise essentially three arguments as to why this case should not be reopened. First, relying upon what is essentially a meaningless, and ultimately irrelevant cliche­"once a minor dispute, always a minor dispute"3/­defendants argue that plaintiff's only avenue of redress on behalf of the employees it represents to protect their rights in light of the Award of Special Board of Adjustment No. 1155, is that provided by Sections 3 First (p) and (q) of the Railway Labor Act (RLA), 45 U.S.C. §§ 153 First (p) and 153 First (q)­i.e., a petition to enforce or review the Award. Second, defendants BNSF and UTU/GO-009 argue that there is no justification for a petition to enforce the award, for as of September 7, 2007, they mistakenly allege, BNSF is "complying" with that award and that any dispute over that compliance is itself a minor dispute that must be adjusted. And finally, defendants BNSF and UTU/GO-009 argue that, in light of BLET's petition to review SBA 1155's Award, it is premature to reopen this case. All three arguments, and, indeed, BLET's

The cliche comes from Chicago & Northwestern Transportation Co. v. RLEA, 908 F.2d 144, 157-58 (7th Cir. 1990), cert. denied, 498 U.S. 1120 (1991), where the court, through Judge Posner, stated: Once a minor dispute, always a minor dispute, at least in the sense that the union cannot convert a minor dispute into a major dispute by conceding that no arbitration is necessary because the railroad's interpretation of the agreement is correct after all. In that case, all the union can do is to try to change the agreement for the future, by filing a Section 6 notice, thereby precipitating a major dispute. It cannot break the contract and call the resulting dispute major, entitling it to strike; a dispute is still a minor dispute after one of the disputants has thrown in the towel. Filing a section 6 notice may kick off a major dispute; it does not transform a minor dispute into a major one. -2-

3/

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 3 of 20

petition to review, are premised on a fundamental misconception of plaintiff's suit and the June 2005 Order of this Court granting plaintiff partial summary judgment. The case or controversy plaintiff invoked this Court's jurisdiction to adjudicate was not, as defendants erroneously assert,4/ whether Article 50 of the Consolidated Kansas City Yards Schedule "required the approval of GO-245 before the BNSF could enter into the Flow-Back Agreement insofar as that agreement affects the Kansas City Consolidated Yards . . . ." Amended Complaint [Docket #2] at ¶ 21. That issue, plaintiff acknowledged in its complaint, raised a contract interpretation issue within the exclusive jurisdiction of the Railway Labor Act's adjustment boards. Id. Rather, the case or controversy that plaintiff asserted was within this Court's subject matter jurisdiction and which plaintiff invoked this Court's jurisdiction to decide was, as set forth in the Amended Complaint's First Cause of Action, whether plaintiff was correct in asserting that (Docket #2 at ¶ 28): By entering into the Flow-Back Agreement with defendants UTU and BLE, an agreement which affects the Kansas City Consolidated Yards, without first obtaining the approval of plaintiff GO-245, as required by Article 50 of the Schedule Agreement for the Kansas City Consolidated Yards, defendant BNSF violated the commands of Sections 2 First and 2 Seventh of the Railway Labor Act by failing to maintain its agreements with plaintiff and by changing the rules and working conditions of the BNSF employees represented by plaintiff in a manner that is prohibited by its existing agreements. SBA 1155 was not called upon to decide that statutory interpretation issue; it was asked to, and did, resolve the embedded contract interpretation issue upon which the statutory interpretation

4/

E.g., BLET Response [Docket #56] at 2, quoting Amended Complaint ¶ 21. -3-

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 4 of 20

issue turns. That dispute, as set forth in the order of this Court directing GO-009 to participate in the adjustment board proceeding was: "[T]he dispute between [GO-009] . . . , GO-245 and BNSF regarding the meaning and application of Article 50 of the Consolidated Yards Schedule." June 2005 Order [Docket #39] at 14. Once it is recognized that the contract interpretation issue and the statutory enforcement issue, albeit related, are distinct, defendants' arguments in opposition to reinstating this case to enforce RLA §§ 2 First and 2 Seventh in light of SBA 1155's award, as well as BLET's petition to review, fail. I. PLAINTIFF'S MOTION TO REOPEN SEEKS TO REACTIVATE THIS COURT'S SUBJECT MATTER JURISDICTION TO ENFORCE RLA §§ 2 FIRST AND 2 SEVENTH IN LIGHT OF SBA 1155'S "FINAL AND BINDING" INTERPRETATION OF ARTICLE 50; PLAINTIFF'S MOTION DOES NOT ASK THIS COURT TO RECONSIDER THE CONTRACT-INTERPRETATION DISPUTE DECIDED BY SBA 1155.

As explained above, plaintiff's motion to reopen this case neither challenges SBA 1155's award nor seeks to enforce that award, but rather, relies upon that award's "final and binding" and, thus, authoritative interpretation of Article 50 of the Consolidated Yards Schedule to form the predicate for plaintiff's claim that BNSF violated RLA §§ 2 First and 2 Seventh by applying the Flow Back Agreement to the Consolidated Kansas City Yards. Plaintiff seeks to reinstate this case so that it may obtain the relief its complaint has requested from the beginning for that statutory violation: (1) A declaratory judgment that the "Flow-Back Agreement is null and void as having been entered into in violation of Sections 2 First and 2 Seventh of the Railway Labor Act, insofar as the Flow-Back Agreement purports to apply to the Kansas City Consolidated Yards" (Complaint at 10-11, ¶ B [Docket #1]; Amended Complaint at 11, ¶ D); and (2) an injunction "enjoining -4-

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 5 of 20

defendants BNSF, General Committee GO-009, and BLE from applying the Flow-Back Agreement to the Kansas City Consolidated Yards . . . ." Complaint at 11, ¶ C; Amended Complaint at § E. That relief, plaintiff submits is necessary because BNSF is continuing to apply the Flow Back Agreement to the Consolidated Kansas City Yards. Moreover, BNSF employees who utilized the provisions of the Flow Back Agreement to obtain ground-service positions within those yards are still holding those yard positions, and by doing so, are adversely affecting BNSF employees represented by GO245. Defendants' arguments that this case presents nothing more than a contract interpretation issue and that plaintiff must look solely to the SBA­or, as BNSF argues, to another adjustment board (BNSF Opp. [Docket #54] at 3, 4-6)­for a remedy for that contract violation, ignore the statutory violations that the SBA's award conclusively establish occurred. SBA 1155, as the parties charged it to do5/ and as this Court directed,6/ interpreted Article 50 of the Consolidated Yards Schedule; it did not purport to, nor did it, determine what impact that contractual interpretation would have on A copy of the agreement establishing SBA 1155 is attached to the accompanying declaration of counsel as Counsel Ex. 1. The parties provided in that agreement that: "Each party to this Agreement may frame the issue for adjustment, so long as the issue as framed requires the resolution of the dispute arising from the interpretation of Article 50 of the Consolidated Yard Schedule that the United States District Court for the District of Colorado, in GO-245 v. BNSF Ry., . . . issued January 2, 2007, directed be adjusted." SBA Agreement at ¶ 1. While the parties presented in their submissions to SBA 1155 different iterations of the issue each asserted was to be adjusted, they agreed at the hearing to the following framing of that issue: "Was Article 50 of the Consolidated Kansas City Yards Schedule Agreement violated by BNSF and GO-009's implementation of the `Flow Back Agreement' in the Consolidated Kansas City Yards?" Award at 2. In both its June 2005 Order granting GO-245 partial summary judgment (Order at 14) and its January 2, 2007 Order reimposing that Order (Order at 1 [Docket #47]), this Court ordered GO-009 to participate in the appropriate adjustment board proceeding "to resolve the dispute between it, plaintiff GO-245 and defendant BNSF Railway Company regarding the meaning and application of Article 50 of the Consolidated Yard Schedule . . . ." -56/ 5/

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 6 of 20

BNSF's statutory obligations. That SBA 1155 was faithful to its charge and kept its award within its jurisdiction may be seen by examining the relevant award, which provided that (Award at 33): The application of the Flow Back Agreement entered into by BNSF and GO-009 to the Consolidated Kansas City Yards without GO-245's approval violated, and continues to violate, Article 50 of the Consolidated Yards Schedule Agreement. That award does not purport to determine authoritatively what is to happen when its interpretation of Article 50 is applied to BNSF's statutory obligations.7/ Plaintiff's request to reinstate this suit is premised upon the fact that the statutory enforcement issue is separate and distinct from, albeit related to, the contract interpretation issue. Indeed, that fact that there is a clear distinction between the two may be seen by examining which defendants are parties to which disputes. GO-009, GO-245 and BNSF are parties to the Consolidated Yards Schedule and, thus, they are the parties "involved" in the dispute presented to SBA 1155, which was called upon to construe that agreement. See, 45 U.S.C. § 153 First (j) (the NRAB Division, here the SBA, "shall give due notice of all hearings to the employee or employees and the carrier or carriers involved in any disputes submitted to them") (Emphasis added). Their status as parties­and, conversely, BLET's status as a non-party­was recognized by this Court in its June 2005

To the extent that BNSF seeks to fault SBA 1155 for not imposing a "remedy" (BNSF Opp. at 2-3), that asserting is disingenuous. SBA 1155 was created by agreement among GO-245, GO-009 and BNSF. Each had a say in the framing of the issues to be considered by the Board, and each agreed that the parties were seeking declaratory relief only. As SBA 1155 explained: "This Board was given the limited responsibility of making a determination as to whether Article 50 of the Schedule Agreement was violated in the instant case, and was expressly directed not to fashion a remedy. The Board is mindful that it is possible that the parties may pursue further litigation as a result of this Award." Award at 33. -6-

7/

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 7 of 20

and February 2, 2007 Orders when it listed GO-009, GO-245 and BNSF as the ones to resolve the dispute over the proper interpretation of Article 50 of the Consolidated Yards Schedule. June 2005 Order at 14; January 2007 Order at 1. BLET never asked this Court to include it as a party or as a participant to that adjustment board proceeding, nor did it seek this Court assistance when the question of its participation was placed before SBA 1155 and it was not granted party status. Counsel Exs. 2 & 3. In short, BLET was properly excluded from participating before SBA 1155 because it is not a signatory to the Consolidated Yards Schedule, nor is its presence necessary to resolve the whole dispute over the proper interpretation of Article 50. Transportation-Communication Employees Union v. Union Pacific R.R., 385 U.S. 369, 373 (1967).8/ On the other hand, BLET is obviously involved in this controversy­but its involvement is in the statutory enforcement dispute, not in the contract interpretation dispute. This was made clear by the earlier motions in this case, for in its June 2005 Order, this Court concluded that BLET was a necessary party to the litigation under Rule 19(a), Fed. R. Civ. P, and that its participation in this case may be necessary to enable GO-245 to obtain complete relief. June 2005 Order at 11-12. In rejecting BLET's argument that it should be dismissed because GO-245 has not alleged that it violated the RLA, this Court stated (Order at 11):

BLET recognized its non-involvement in the Article 50 interpretation dispute in its Memorandum in Support of its Motion to Dismiss [Docket #9] at 13-14 (". . . BLE is not in any manner involved in any arbitration between GO-245 and GO-009. In fact, any decision by such arbitration upon the dispute between those two general committees could not negate or affect in any manner the Flow-Back Agreement insofar as it pertains to engineers and what GO-245 calls `BLE positions'"). -7-

8/

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 8 of 20

BLE is correct that the amended complaint does not allege BLE violated the RLA by entering into the Flow-Back Agreement or assert any other claim against BLE. GO-245 argues BLE is nonetheless a necessary party to this litigation pursuant to Fed. R. Civ. P. 19(a), because the amended complaint seeks to enjoin application of the Flow-Back Agreement to the Kansas City Consolidated Yards, so that the interests of BLE, as a party to that Agreement, will be affected by this litigation. I agree. As an indispensable party, BLE is properly a defendant in this action. . . . The Court then noted that BLET did not dispute that it was an indispensable party, but argued that it should be "dismissed because the relief GO-245 seeks against BLE, a permanent injunction barring it and the other parties to the Flow-Back Agreement from applying the Agreement to the Kansas City Consolidated Yards, is barred by the Supreme Court's decision in General Building Contractors Association, Inc. v. Pennsylvania, 458 U.S. 375 (1982)." Order at 11-12. In General Building Contractors, this Court observed, the Supreme Court held that "`[t]o the extent that the remedy properly imposed upon the [liable defendants] requires any adjustment in the collectivebargaining contract between the [non-liable party] and the [defendants], it is entirely appropriate for the District Court to fashion its injunctive remedy to so provide, and to have that remedy run against [the non-liable party] as well as the [defendants].'" Order at 12, quoting 458 U.S. at 400 [brackets added in June 2005 Order]). This Court then stated (Order at 12): The [quoted] . . . statement suggests that an injunction adjusting the Flow-Back Agreement to bar its application to the Kansas City Consolidated Yards, and imposing this injunction on BLE as well as GO-009 and BNSF, would be "minor and ancillary" and well within this court's equitable powers. Whether this preliminary view is correct, however, is a matter to be determined when and if GO-245 prevails in its position before the adjustment board and seeks an order enforcing that award. Until this occurs and BLE demonstrates that the requested injunction imposes more than minor -8-

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 9 of 20

and ancillary burdens on it, there is no basis for dismissing BLE from this action. Defendants' arguments that plaintiff may not return to this Court to enforce RLA §§ 2 First and 2 Seventh in the light provided by SBA 1155's Award construing Article 50, are without merit.9/ Plaintiff agrees that what the Supreme Court stated in Andrews v. Louisville & Nashville R.R., 406 U.S. 320, 325 (1972), is still good law: "A party who has litigated an issue before the Adjustment Board on the merits may not relitigate that issue in an independent judicial proceeding. . . . He is limited to the judicial review of the Board's proceedings that the Act itself provides . . . ." However, what defendants fail to acknowledge is that plaintiff did not litigate the statutory issue before SBA 1155, nor could it have placed that issue before the Board, for while the Board had exclusive jurisdiction to interpret Article 50 of the Consolidated Yards Schedule, this Court, rather than SBA 1155, has jurisdiction to enforce RLA §§ 2 First and 2 Seventh. Chicago & North Western Ry. v. UTU, 402 U.S. 570, 577 (1971) ("[W]e think it plain that § 2 First was intended to be more than a mere statement of policy or exhortation to the parties; rather, it was designed to be a legal obligation, enforceable by whatever appropriate means might be developed on a case-by-case basis"); Id., 402 U.S. at 581 ("In light of these considerations, we think the conclusion inescapable that Congress intended the enforcement of § 2 First to be overseen by appropriate judicial means"); Detroit & Toledo Shore Line R.R. v. UTU, 396 U.S. 142, 156 (1969) ("The purpose of § 2 Seventh is twofold:

Defendants' arguments that it is premature to reopen this case until after this Court resolves BLET's Petition For Review of SBA 1155's Award are frivolous. Since BLET's petition is in essence a counterclaim or defense to GO-245's suit for an injunction, it makes sense to consolidate that case with this litigation and to handle both matters concurrently. That is why GO245 has asked that both cases be consolidated. Docket #52. -9-

9/

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 10 of 20

it operates to give legal and binding effect to collective agreements, and it lays down the requirement that collective agreements can be changed only by the statutory procedures"). Defendants, by referring to several line sale cases, seek to support their mistaken belief that once this Court determined that the contract interpretation dispute presented a minor dispute, this Court was divested of subject matter jurisdiction over the statutory violation issue. Those cases, however, do not support defendants' position. In the line sale cases upon which defendants rely, rail labor argued that the question of whether a railroad could sell its lines during the bargaining process involved a determination of what working conditions must be preserved as part of the status quo and that this issue was to be decided by the courts. See, Chicago & North Western Transportation Co. v. RLEA, 908 F.2d at 148-49. But the railroads argued that this issue presented a minor dispute, within the adjustment board's exclusive jurisdiction. In CSX Transportation, Inc. v. UTU ["CSX I"], 879 F.2d 990 (2d Cir. 1989), the district court concluded that the right of a railroad to sell its line without first bargaining presented a minor dispute. While that case was on appeal, the dispute was arbitrated and the SBA established to hear that dispute concluded that the railroad was incorrect in asserting that it had the contractual right to sell without first bargaining over the effects of that sale on its employees. 879 F.2d at 1003. Based on that award, rail labor asked that the appeal be remanded to the district court so the court could enforce the status quo. 879 F.2d at 1002-03. That request was denied, because the appellate court concluded that the fact that the SBA rejected the railroad's contract-justification argument on the merits did not mean that the district court was incorrect in finding that it was arguable. 879 F.2d at 1003-04. The court next addressed labor's argument that without a remand so -10-

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 11 of 20

the district court could determine what working conditions were to have been preserved as the status quo, the employees would be left without a remedy. 879 F.2d at 1005. That argument was rejected, because, the appellate court concluded, the adjustment board had the authority to devise an appropriate remedy. 879 F.2d at 1005. What defendants ignore in their reliance upon CSX I is what occurred on the remand in CSX and the subsequent consideration by the Second Circuit of the ruling on remand. CSX Transportation, Inc. v. UTU ["CSX II"], 950 F.2d 872 (2d Cir. 1991). In CSX II, the Second Circuit explained that the SBA had concluded that since the agreements between the parties were silent on the issue, "CSX was not contractually authorized to sell lines without first bargaining over additional protections for displaced workers." 950 F.2d at 875 (emphasis in original). But, the court observed, since the agreements did not forbid CSX's actions, the board could only conclude that the unions had not contractually waived whatever rights they may have had under the RLA. Id. As the court added: "The question then became: what are those RLA rights? As that statutory issue is beyond arbitral, contractual jurisdiction, the `award' contained no remedy." Id. (emphasis in original). Because of the unique procedural posture of the case and relying upon CSX I, the district court remanded the dispute to the SBA for the board "to consider whether to, and how to `make union members whole, i.e., put them in the position they would have been in had they been entitled to maintain the status quo under § 6.'" CSX II, 950 F.2d at 875. The appellate court reversed. As CSX II summarized: "Because we disagree with the conclusion that a line sale represents an alteration of salaries, rules or job conditions for § 6 purposes, we reverse." 950 F.2d at 875. In other words, despite what was said in CSX I, the Second Circuit in CSX II ruled that the interpretation and -11-

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 12 of 20

enforcement of the RLA is for the courts­not the adjustment boards­even in cases involving minor disputes. Thus, what CSX II, and the line sale cases upon which defendants rely, show is that RLA adjustment boards have exclusive jurisdiction to interpret collective bargaining agreements, and to award a remedy for a violation of those agreements. Any challenge to the board's consideration of the contract-interpretation dispute or the remedy it devises or fails to devise, is governed by RLA §§ 3 First (p) and (q). However, as CSX II exemplifies, adjustment boards may provide only contractually based remedies; they may not award a remedy for a statutory violation. Additionally, in arguing that this Court lacks jurisdiction to consider the statutory enforcement issue that is now ripe for consideration in light of SBA 1155's award, defendants fail to understand the import of Consolidated Rail Corp. v. RLEA ["Conrail"], 491 U.S. 299 (1989), and Order of Railroad Conductors v. Pitney, 326 U.S. 561 (1946).10/

Defendant BLET argues that Pitney is no longer good law, because it was decided before the 1966 amendments to the RLA, which revised and limited the scope of review under RLA § 3 First (p) of adjustment board awards. BLET Opp. at 4-5, n. 3. That argument is specious. When it was enacted in 1934, § 3 First (p) gave district courts jurisdiction to enforce adjustment board awards (48 Stat. at 1192), but unlike after its amendment in 1966, provided that the "findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated . . . ." Id. The 1966 amendment changed this by making those findings and order "conclusive." 45 U.S.C. § 153 First (p). Thus, since 1934, RLA adjustment boards had mandatory jurisdiction to interpret collective bargaining agreements. But, the same Act that gave the boards this authority also enacted § 2 Seventh, which gave "legal and binding effect to collective agreements, and . . . [laid] down the requirement that collective agreements can be changed only by the statutory procedures." Detroit & Toledo, 396 U.S. at 156. Pitney reconciled the grant of jurisdiction to the adjustment board­"An agency especially competent and specifically designated to deal with" minor disputes (Pitney, 326 U.S. at 567)­with the authority of federal courts to enforce the commands of the RLA (326 U.S. at 324-25), by ruling that the court should "stay" its consideration of the statutory issues (continued...) -12-

10/

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 13 of 20

In Conrail, the Court concluded that the Act's status quo obligation did not apply to prevent a carrier from acting upon its non-frivolous interpretation of a contract, but it then observed that the effect of its ruling to allow a carrier to implement its non-frivolous interpretation of the contract while the minor dispute is resolved through the adjustment board process, "will be to delay collective bargaining in some cases until the arbitration process is exhausted." 491 U.S. at 310. This observation is inconsistent with defendants' argument that "once a minor dispute, always a minor dispute." Rather, Conrail is consistent with the principle that while a federal court may not interpret a collective bargaining agreement, it has the power to rely upon the adjustment board's interpretation of the contract to enforce Section 2 Seventh. The fact that an adjustment board jurisdiction does not displace a federal court's jurisdiction to enforce the Railway Labor Act's commands is made clear by Order of Railroad Conductors v. Pitney, in which the Court held that when a court concludes that the dispute involves a contract interpretation issue, "[t]he dismissal of the cause should . . . be stayed by the District Court, so as to give an opportunity for application to the Adjustment Board for an interpretation of the agreements. Any rights clearly revealed by such an interpretation might then, if the situation

(...continued) "so as to give an opportunity for application to the Adjustment Board for an interpretation of the agreements." 326 U.S. at 568. This is simply an application of the doctrine of "primary jurisdiction" and, as the Seventh Circuit observed in Tice v. American Airlines, Inc., 288 F.3d 313, 318 (7th Cir. 2002), in holding that the district court, rather than dismissing a suit under the Age Discrimination in Employment Act, which raised a minor, should have stayed the suit to await the outcome of the adjustment proceeding, stated: "That is the normal procedure when an arbitrable issues arises in the course of a federal suit." Thus, there is nothing in the 1966 amendments that should call Pitney's stay ruling into question. -13-

10/

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 14 of 20

warrants, be protected in this proceeding." 326 U.S. at 568 (footnote omitted). Pitney explains and reinforces Justice White's concurrence in Conrail, 491 U.S. at 320, where Justice White, after observing that he agreed that the dispute was "a minor one for the Adjustment Board to resolve," added (491 U.S. at 320-21): If the Board decides that the company is wrong about its authority under the contract, the result will be that the company has sought a change in the contract without invoking the procedures applicable to major disputes. In other words, the railroad will have violated Section 2 Seventh, which is what SBA 1155's Award establishes occurred here. And, as Justice White intimates, this Court has jurisdiction to rectify that statutory violation. II. BNSF'S CLAIM THAT IT IS "COMPLYING" WITH SBA 1155'S AWARD DOES NOT CONVERT THE ENFORCEMENT OF RLA §§ 2 FIRST AND 2 SEVENTH INTO A MINOR DISPUTE.

BNSF contends that any attempt on GO-245's part to rely upon SBA 1155's Award in enforcing RLA §§ 2 First and 2 Seventh, would by itself present a minor dispute, because, BNSF alleges, as of September 7, 2007, it is "no longer applying the Flow Back Agreement in any manner having an adverse impact on GO-245's membership."11/ BNSF Opp. at 5. It attempts to support that allegation by stating that it has eliminated the two specific impacts of the original agreement upon which GO-245 relied to assert that the Flow Back Agreement "affected" the Consolidated Kansas City Yards. BNSF Opp. at 5-6. It further argues that if GO-245 disputes this, the resultant

GO-245 disputes BNSF's allegations, both as to whether it has modified its application of the Flow Back Agreement and whether the modifications it alleges it has made cure its breach of Article 50. -14-

11/

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 15 of 20

controversy would raise a minor dispute.12/ BNSF Opp. at 6. UTU/GO-009 echoes this argument, citing BMWE v. Burlington Northern R.R., 24 F.3d 937 (7th Cir. 1994), to argue that a dispute "regarding the meaning or interpretation of the SBA 1155 decision" is a minor dispute. UTU Opp. at 4, n. 1. Those arguments do not justify not reinstating this suit, for they present factual allegations that are more properly addressed after the case in reinstated. Moreover, those arguments are without merit legally, for the first issue to be addressed once this case is reinstated is whether BNSF violated RLA §§ 2 First and 2 Seventh beginning in January 1, 2001, when it began to apply the Flow Back Agreement to the Consolidated Kansas City Yards. If that question is answered in GO-245's favor, as it must be, the issues to then be addressed are: (1) should BNSF, GO-009 and BLET be enjoined from applying the Flow Back Agreement in the Consolidated Yards until BNSF and GO-009 comply with Article 50; (2) should those employees who currently hold yard positions in Kansas City due to the Flow Back Agreement be required to return to engine service; and (3) what other relief should this Court grant. Whether BNSF is currently complying with SBA 1155's Award is not relevant to the question whether it violated RLA §§ 2 First and 2 Seventh by applying the Flow Back Agreement to the Consolidated Yards between 2001 and the date it purportedly modified its actions in response to SBA 1155's Award. Nor does it answer

BNSF also points to a Letter Agreement dated January 11, 2007, to argue that "GO245 itself has negotiated many deals unilaterally that affect only its membership (some of whom work on jobs within the Kansas City Consolidated Yards)." BNSF Opp. at 5 and Exhibit B. The Letter Agreement to which BNSF refers was brought up to SBA 1155 and GO-245 explained that it does not apply to the Consolidated Yards. Counsel Dec. at ¶6. -15-

12/

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 16 of 20

the issue whether employees who flowed back into the yards between 2001 and the date of the Award must return to engine service. But there is another fundamental problem with BNSF's argument. BNSF's claim that it is complying with the Award is insubstantial. SBA 1155 unambiguously concluded that the Flow Back Agreement "affected" the Consolidated Kansas City Yards. And it explained its ruling by pointing to the fact that "BN-seniority-holding engineers are flowing back into the Yards under the Flow Back Agreement, into an ATSF-allocated position, and then exercising their high level of BN ground seniority to obtain a `prior rights' and better BN-allocated assignment, thus pushing the other employees on the roster down into less desirable positions with less desirable rest days." Award at 30. It also pointed out that "the share of each crew consist protected ground-service employee in the BN productivity fund is being diminished because more employees are accumulating shares in the fund that would have in the absence of the Flow Back Agreement." Id. Those two instances were but examples of the "affect," for the essence of SBA 1155's Award was its ruling that Article 50 required GO-245's approval of "any agreement or understanding `which affects the Consolidated Kansas City Yards'" (Award at 29; emphasis in original), and not, as BNSF and GO-009 argued, any agreement "`which affects this Agreement governing the Consolidated Kansas City Yards.'" Award at 30 (emphasis in original). SBA 1155 then explained that while the adverse affects of the two examples "may have been unintended by the parties to the Flow Back Agreement, the fact is that the manner in which seniority is exercised within the Consolidated Yards has been affected." Award at 30 (emphasis added). Thus, the gravamen of SBA 1155's Award is that applying the Flow Back

-16-

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 17 of 20

Agreement to the Consolidated Yards "affected" the seniority in those yards and, thus, violated Article 50 because GO-245 did not approve that impact. BNSF proposed "cures" do not deprive this Court of jurisdiction to enforce RLA §§ 2 First and 2 Seventh by an injunction, for BNSF's new interpretation of the Flow Back Agreement continues to allow engineers to exercise ground service seniority in the Consolidated Yards­which is exactly what SBA 1155 recognized affected the yards. Moreover, as GO-245's response to BNSF's September 7, 2007 letter shows (Counsel Ex. 4), the restriction BNSF intends to apply on engineers sharing in the BN Productivity Funds violates another agreement; namely, an April 7, 2006 Memorandum of Agreement (MOA) "by which BNSF agreed that prior right BN yardmen `will be paid the BN rate of pay, the short crew allowance and qualify for trip credits for Productivity Fund payments (if eligible under respective Crew Consist Agreement) when working any Kansas City Consolidated Terminal yard job." Counsel Ex. 4 at 2, quoting MOA at § 1.A. As Conrail makes clear, not every claimed interpretation of an agreement should be characterized as a "minor dispute," in contrast to a controversy involving the violation of RLA § 2 Seventh. Rather, when a carrier "asserts a contractual right to take the contested action, the ensuing dispute is minor if the action is arguably justified by the terms of the parties' collective-bargaining agreement. Where, in contrast, the employer's claims are frivolous or obviously insubstantial, the dispute is major." 491 U.S. at 307. Where, as here, the carrier's purported modification to an agreement that an adjustment board found violated another collective bargaining agreement are nothing more than cosmetic changes that clearly do not cure the breach, the carrier's arguments do not deprive the court of jurisdiction to enforce RLA §§ 2 First and 2 Seventh. -17-

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 18 of 20

This is especially true here, where the SBA agreement gives BNSF the right to "interpret" the Award if a "dispute arises involving an interpretation of the Award within one hundred and twenty (120) days of the date that the Award is issued . . . ." Counsel Ex. 1 at 4, ¶ 10. If BNSF believes that its unilateral modifications of the Flow Back Agreement means that the modified Flow Back Agreement no longer violates Article 50 as interpreted by SBA 1155, it may invoke the SBA's reserved jurisdiction to have the Board interpret its award in light of BNSF's modifications. But, in the interim, RLA §§ 2 First and 2 Seventh require that the Flow Back Agreement be enjoined. Southern Ry. v. Brotherhood of Locomotive Firemen, 337 F.2d 127, 132-33 (D.C. Cir. 1964).13/ CONCLUSION

In Southern Ry. the appellate court upheld an injunction to enforce the RLA's major dispute procedures which enjoined the carrier from implementing a new interpretation of its agreement pending either a negotiated resolution to the dispute or an award from an adjustment board upholding the carrier's new reading of the agreement. As the court explained (337 F.2d at 13233): [W]e think that the District Court properly ordered, under the second claim of the complaint, that the injunction will remain effective until either the NRAB interprets the contract in Southern's favor or until the contract is modified or changed under the Railway Labor Act. The NRAB of course is not ordinarily concerned with Section 6 proposals, but here the contract change proposed under Section 6 would be put into effect immediately by the change in the longstanding prior interpretation and application of the old contract. To be effective and to effectuate the command of Section 6, the injunction under the Section 6 claim must, pending exhaustion of the statutory processes for negotiation of a new contract under the Act, properly preclude such a change in interpretation until such change is authorized by the NRAB, even granting that ordinarily the change could not be enjoined. -18-

13/

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 19 of 20

For the reasons set forth in its Motion to Reopen and in this Reply, plaintiff GO-245 submits that its Motion should be granted and this Court should: (1) reopen and reinstate this case; and (2) schedule a status conference at which the parties may advise this Court how they believe this case should proceed. Respectfully Submitted this 28th day of September 2007

/s/ Michael J. Belo Martin D. Buckley Michael J. Belo BERENBAUM, WEINSHIENK & EASON, P.C. 370 Seventeenth Street, Suite 4800 Denver, Colorado 80202 Phone: (303) 825-0800 Fax: (303) 629-7610

/s/ John O'B. Clarke, Jr. John O'B. Clarke, Jr. HIGHSAW, MAHONEY & CLARKE, P.C. 1050 17th Street, N.W., Suite 444 Washington, D.C. 20036 Phone: (202) 296-8500 Fax: (202) 296-7143 Attorneys for Plaintiff General Committee GO-245

-19-

Case 1:01-cv-02531-JLK

Document 57

Filed 09/28/2007

Page 20 of 20

CERTIFICATE OF SERVICE I hereby certify that I have this 28th day of September, 2007, caused a copy of the foregoing Reply to Oppositions To Plaintiff's Motion To Reopen The Case, with attached declaration of counsel and exhibits to be served by email to the following: David M. Pryor ([email protected]) BNSF Railway Company 2500 Lou Menk Drive, AOB-3 Fort Worth, Texas 76131-2828 Walter J. Downing ([email protected]) Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, Colorado 80202 Carmen R. Parcelli ([email protected]) Guerrieri, Edmond & Clayman, P.C. 1625 Massachusetts Ave., N.W., Suite 700 Washington, D.C. 20036-2243 Richard Rosenblatt ([email protected]) Richard Rosenblatt & Assoc., LLC 8085 East Prentice Ave. Greenwood Village, Colorado 80111 Harold A. Ross ([email protected]) 23195 Stoneybrook Dr. North Olmsted, Ohio 44070 Thomas B. Buescher ([email protected]) Buescher, Goldhammer, Kelman & Dodge, P.C. 1563 Gaylord Street Denver, Colorado 80206 /s/ John O'B. Clarke, Jr. John O'B. Clarke, Jr.

-20-