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

Case 1:01-cv-02531-JLK

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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. ______________________________________________________________ MEMORANDUM OF DEFENDANT BROTHERHOOD OF LOCOMOTIVE ENGINEERS IN OPPOSITION TO PLAINTIFF'S MOTION TO REOPEN CASE ______________________________________________________________ Defendant Brotherhood of Locomotive Engineers (BLET)1 opposes plaintiff's request to reopen this case. BLET's opposition is based upon two grounds. The first is that the request of General Committee of Adjustment GO-245, United Transportation Union (GO-245) is misplaced because it raises a claim that is moot or is a substantially different cause which is outside the Court's jurisdiction; and is not one of the subjects referred to in the Court's Order on Pending Motions entered on June 28, 2005, as reinstated on January 2, 2007, as the basis for reopening the case. See Docket Nos. 39 and 47, respectively. Second, having been held a minor dispute subject to arbitration pursuant to Section 3 of the Railway Labor Act (RLA), 45 U. S. C. §153, and having been submitted to arbitration before Special Board of Adjustment No. 1155 (SBA 1155), which rendered an award favorable to GO1

After this litigation was instituted, the Brotherhood merged with the International Brotherhood of Teamsters (IBT) and is called the Brotherhood of Locomotive Engineers & Trainmen (BLET), a Division of the Rail Conference of the IBT.

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245 ­ though BLET submits invalidly and beyond its jurisdiction and in violation of the requirements of the RLA to the detriment of BLET and the engineers represented by it on the BNSF (former Atchison, Topeka and Santa Fe Railway) and their craft seniority rights2 -- the exclusive method provided in the RLA for enforcing the award is to file a petition for enforcement review under 45 U. S. C. §153 (p), and the exclusive method to have it vacated or set aside is to file a petition to review under 45 U. S. C. §153 (q). The RLA sets forth the three specific grounds upon which the award may be reversed by a federal court. Plaintiff cannot expand the jurisdiction of the court and go beyond the statutory standards of review. I. THE COURT SHOULD DENY THE MOTION TO REOPEN A. GO-245 Raises A New Claim Or Cause Beyond The Court's Jurisdiction

The gravamen of GO-245's Amended Complaint is set forth in Paragraph 21, where plaintiff states that whether "Article 50 of the Schedule Agreement for the Kansas City Consolidated Yards required the approval of GO-245 before the BNSF could enter into the FlowBack 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." While referring to Sections 2 First, 2 Second and 6 of the RLA, which pertain to major disputes, that is disputes involving an "unintended change in agreements affecting rates of pay, rules, or working conditions," 45 U. S. C. §156, GO-245 was seeking an order finding the dispute arbitrable. Once the Court granted that order and directed the dispute to arbitration, plaintiff's references to Sections 2 First, 2 Seventh and Section 6 were irrelevant and are now moot. That is
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On September 7, 2007, prior to the filing of GO-245's motion to reopen, BLET filed in this Court a petition to review the award of SBA 1155 under Section 3, First (q) of the RLA, 45 U. S. C. §153, First (q), which is BLET v. BNSF Railway Company, et al., and docketed as Civil Action No. 07-cv-01889-MSK-MEH. 2

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quite obvious in this case where a final award was entered, which found that BNSF's and GO009's implementation of the Flow-Back Agreement in the Consolidated Kansas City Yards "without GO-245's approval violated, and continues to violate, Article 50 of the Consolidated Yards Schedule Agreement" and further that "the 1973 Single Seniority Agreement cannot apply to the Consolidated Yards in place of the Flow-Back Agreement, nor validly provide for the exercise of seniority to move from engine service to ground service." SBA 1155 Award at 33, attached to Motion to Reopen. Under the circumstances, the dispute as to whether the controversy was major or minor under the decision in Consolidated Rail Corporation v. Railway Labor Executives' Association, 491 U.S. 299 (1989), had been resolved when plaintiff conceded that the dispute was minor. If plaintiff can now be permitted to go back and say that the dispute was major and, therefore, other sections of the RLA applied, what can be gained through the use of the limited resources of the judicial system? GO-245 cannot obtain any monetary damages, attorneys fees, anything of value, or any relief that is more than philosophical or illusory. Accordingly, plaintiff has no viable claim or cause before the Court, and the motion to reopen should be denied. B. The Request Cannot Be Supported By The Court's Order.

Specifically, this Court in its order of June 28, 2005, "Stayed and Administratively Closed [this action] until such time as the adjustment board has ruled in this dispute or one or more of the parties shows good cause that this action should be reopened." Docket No. 39 at 14. This Court provided guidance as to what it might consider good cause. Specifically, the Court suggested that BLET and the other defendants could raise the objections set forth in their motions to dismiss if the arbitration award was unfavorable to them. In addition, the case could

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be reopened, as it was through the subsequent order, dated January 2, 2007, by plaintiff for "an order compelling GO-009 to participate in [the] arbitration before the adjustment board." Id. Although the Court stated that the action was also stayed "so that any rights revealed by the adjustment board's contract interpretation may be protected if necessary," this statement is inapplicable to the matter as it has developed. Id. The defendants other than BLET will, as we understand, comply with the award insofar as it pertains to "the meaning and application of Article 50 to the Flow-Back Agreement." Id. Moreover, as we show in the next argument, any remaining dispute between GO-245 and BLET, also with the other defendants, can be and legally should be handled in a suit to enforce the award under 45 U. S. C. §153, First (p) by GO-245 (or by counterclaim in the litigation commenced by BLET), and for review under Section 3, First (q) of the RLA, 45 U. S. C. §153, First (q), by an aggrieved party, which BLET is. The RLA specifically supplies a vehicle to determine these questions. That statutorily mandated judicial appeal is exclusive and should be followed. Therefore, when the Court ruled the dispute was minor and the ordered parties proceeded to arbitration which decided the meaning and application of Article 50, it no longer had jurisdiction to reopen the proceeding.3 And we submit it should not.

We realize that the Court relied upon dicta set forth in the case of Order of Ry. Conductors v. Pitney, 326 U.S. 561, 568 (1946), to support its conclusion that the action could be stayed to protect the board's contractual interpretations if necessary. Docket No. 39 at 14. However, that dicta is no longer applicable. At the time, that decision was rendered, the courts had to exercise their equitable powers, including decisions that directed parties to arbitrate matters to enforce such awards. See, e.q., Virginian Ry. v. System Federation No. 40, 300 U.S. 515 (1937); Brotherhood of R.R. Trainmen v. Howard, 343 U.S. 768 (1952). Section 3, First (p), as in effect in 1946, required an employee or employees receiving favorable monetary awards to file a lawsuit in federal court to enforce them, which dispute was tried de novo. The employee also had the right to sue the railroad in state court for wrongful discharge on the basis of a breach of contract. Russ v. Southern Ry. Co., 218 F.Supp.634 (E.D. Tenn. 1963), reversed, 334 F.2d 224 (6th Cir. 1964). In 1966, Public Law 89-456 was enacted, which provides the current Section 3, First (p) for enforcement of awards, and Section 3, First (q) for aggrieved parties to petition for 4

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II.

WITH THIS CONTROVERSY HAVING BEEN HANDLED AS A MINOR DISPUTE BY PLAINTIFF THROUGH THE EXCLUSIVE ARBITRATION PROCEDURES PROVIDED FOR IN SECTION 3 OF THE RLA, THE AWARD ISSUED BY THE ARBITRATION BOARD MUST BE REVIEWED IN ACCORDANCE WITH THOSE PROCEDURES SET FORTH IN SECTION 3. As stated above, Sections 3, First (p) and (q) govern the review of RLA arbitration

boards, including those of Section 3, Second boards. See, e.g., Brotherhood of Locomotive Engineers v. St. Louis S. W. Ry., 757 F.2d 656, 600 (5th Cir. 1985); Broth. of Ry. & Steamship Clerks v. St. Louis S. W. Ry., 419 F.2d 933 (8th Cir. 1969), cert. denied, 400 U.S. 818 (1970). Section 3, First (p) opens by stating: If a carrier does not comply with an order of a division of the Adjustment 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 of the United States in which he resides or in which is located the principal operating office of the carrier, or through which the carrier operates, a petition setting forth briefly the causes for which he claims relief, and the order of the division of the Adjustment Board on the premises. Section 3, First (q) commences: "If any employee or group of employees or any carrier, is aggrieved by the failure of any division of the Adjustment Board to make an award in a dispute referred to it, or is aggrieved by any of the terms of an award or by the failure of the division to include certain terms in such award, then such employees or carrier may file in any United States district court in which a petition under paragraph (p) could be filed, a petition for review of the division's order." In language similar to that in subparagraph (p), Section 3, First (q) sets forth the actions that the court may take and the same limited standards of review: The court shall have jurisdiction to affirm the order of the division, or to set it aside, in whole or in part, or may remand the proceedings to the division for such further action as it may

(cont. 3) review to vacate, set aside or remand awards. See Andrews v. Louisville & Nashville R. R., 406 U. S. 320 (1972). To the extent that Pitney may be considered as providing support to reopen a case, it is no longer good law. 5

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direct. In such review, the findings and order of the division shall be conclusive on the parties, except that the order of the division may be set aside, in whole or in part, or remanded to the division, for failure of the division to comply with the requirements of this chapter, for failure of the order to conform, or confine itself, to matters within the scope of the division's jurisdiction, or for fraud or corruption by a member of the division making the order. The judgment of the court shall be subject to review as provided in sections 1291 and 1254 of Title 28. Just as the RLA created arbitration boards with "mandatory, exclusive and comprehensive" jurisdiction over minor disputes arising over grievances and over the interpretation and application of labor agreements, the Act's mandatory arbitration procedures must also apply to the review of the awards flowing from those arbitrations. See, Brotherhood of Locomotive Engineers v. Louisville & Nashville R. R., 373 U.S. 33, 38 (1963). In sum, we submit that once a dispute is a minor dispute and treated as such in the RLA procedures, it remains a minor dispute that must complete those procedures, including any appeal. CSX Transportation, Inc. v. United Transportation Union, 879 F.2d 990 (2d Cir. 1989), cert. denied, 493 U.S. 1020 (1990). In CSX Transportation v. United Transportation Union, supra, the railroad brought an action to enjoin certain unions, who were represented by counsel for plaintiff herein, from striking over a sale of certain lines to a newly formed corporation. With the law evolving at that time concerning deregulation and so-called rationalization of railroads and concomitant employee rights, the union defendants claimed the dispute was major and the railroad's intended sale violated Section 6 of the RLA. In skillful pleading in the answer and counterclaim, the unions sought an injunction based upon the RLA violations which would have preserved the status quo until the effects of the proposed sale on the railroad employees and their rates of pay, rules and working conditions could be reviewed and negotiated by the parties. CSX replied that

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there was, in effect, a minor dispute or, in any event, the sale was subject to the exclusive jurisdiction of the Interstate Commerce Commission, which rendered the RLA requirements inapplicable. Eventually, after various legal maneuvers by the parties, the district court held that CSX's claimed contractual defenses were not frivolous and the dispute was subject to binding arbitration under the exclusive jurisdiction of RLA adjustment boards. Id., 994. While the case was working its way through the appeal to the Second Circuit, the parties submitted their dispute concerning the line sale, which was allowed to proceed by the involved courts, to an arbitration board pursuant to Section 3, Second of the RLA, as here. Id., 995. That Board, after oral argument on the appeals, ruled in favor of the appellant unions. It found that there was no written language in the bargaining contracts or past practice supporting the railroad's position. The award, however, only stated that the questions before the Board were disposed of as set forth in the findings and conclusions in its discussion. Id. The union

appellants moved the Second Circuit to vacate the district court's order and to "remand for consideration of appellants counterclaims, `[s]ince there is no longer a basis for concluding that appellee [CSX] has a contractual right to abolish jobs without first bargaining.'" Id. In their filings on the subsequent Motion To Reopen and Remand, the Court was advised that the rail carrier had filed a petition to review the board's award pursuant to Section 3, First (q). In a lengthy opinion, the Second Circuit reached the issues posed by the unions in their motion to remand for consideration of the RLA violations set forth in the counterclaims to their answer in the district court. The Court found "no basis for a remand to the district court for consideration of appellants' counterclaim," which sought "a declaration that CSX `may not change the rates of pay, rules and working conditions of employees on [the Buffalo-Eidenau

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line] until the [RLA] major dispute resolution processes have been exhausted' (emphasis added), and corresponding injunctive relief." 879 F.2d at 1004. In conclusion, the Second Circuit turned to what it believed was the primary concern of the unions, that the favorable arbitral decision left them " `without any remedy,' because `no employee-contractual right has been violated' and `the adjustment board has no jurisdiction to enforce the [RLA]' so that `the board [is] powerless to rectify the actual injury suffered by the employees.'" Id., 1005. After referring to the Board's terse award, the Court stated in disposition of the union appellants' legal argument and concerns: Appellants' remedy for any perceived inadequacy in the Board's determination, however, is provided by RLA §3 First (q)(1982), which established a judicial remedy for "any employee or group of employees... aggrieved by the failure of any [adjustment board] to include certain terms in its award." Id. The reviewing court "shall have jurisdiction to affirm the order...or to set it aside, in whole or in part, or it may remand the proceeding...for such further action as it may direct." ( Id.) Referring to the decision of the Seventh Circuit in Chicago & N. W. Transportation Co. v. Railway Labor Executives Ass'n, 855 F.2d 1277, at 1288 (7th Cir. 1988), cert. denied, 109 S.Ct. 493 (1988), the Court further found that the legal remedy available to the unions would be available through the arbitration procedures and judicial review provided in Section 3 of the RLA. The statute itself and the rationale set forth in the cited case establish the course that must be followed here and, we submit, dictate that the motion to reopen and for further proceedings on GO-245's alleged RLA violations, identical to those in CSX Transportation, Inc. v. United Transportation Union, supra, should be denied. The Section 3, First (p) and (q) procedures are more than adequate to resolve the dispute.

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In fact, the Supreme Court's opinion in Andrews v. Louisville & Nashville R. R., 406 U.S. 320, at 325 (1972), fully supports this conclusion, for the Court stated in overruling prior case law that allowed the employee to litigate his claims both before the adjustment board and also in state court: A party who has litigated an issue before the Adjustment Board on the merits may not relitigate that issue in an independent judicial proceeding. Union Pacific Railroad Co. v. Price, 360 U.S. 601 (1959). He is limited to the judicial review of the Board's proceedings that the Act itself provides. Gunther v. San Diego and A. E. Railway Co., 382 U.S. 257 (1965). CONCLUSION Based upon the above reasoning and authorities, the Brotherhood of Locomotive Engineers and Trainmen submits that the Court should deny plaintiff GO-245's request to reopen and reinstate this case and to set a scheduling conference. Dated: September 21, 2007

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Respectfully submitted,

s/____Harold A. Ross__________ Harold A. Ross 23195 Stoneybrook Drive North Olmsted, OH 44070 Tel.: (440) 734-3754 Fax: (440) 734-3754 [email protected] s/____Thomas B. Buescher_______ Thomas B. Buescher Buescher, Goldhammer, Kelman & Dodge, P. C. 1563 Gaylord Street Denver, CO 80206 Tel.: (303) 333-7751 Fax: (303) 333-7758 [email protected] Attorneys for Defendant Brotherhood of Locomotive Engineers & Trainmen

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CERTIFICATE OF SERVICE I hereby certify that on September 21, 2007, I electronically filed the within MEMORANDUM OF DEFENDANT BROTHERHOOD OF LOCOMOTIVE ENGINEERS IN OPPOSITION TO PLAINTIFF'S MOTION TO REOPEN CASE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following counsel of record: David M. Pryor ([email protected]) BNSF Railway Company 2500 Lou Menk Drive, AOB-3 Fort Worth, TX 76131-2828 Walter J. Downing ([email protected]) Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202 John O'B. Clarke, Jr. ([email protected]) Highsaw, Mahoney & Clarke, P.C. 1050 17th Street, N.W., Suite 444 Washington, D.C. 20036 Martin D. Buckley ([email protected]) Michael J. Belo Berenbaum, Weinshienk & Eason, P.C. 370 Seventeenth Street, Suite 4800 Denver, CO 80202 John A. Edmond ([email protected]) Guerrieri, Edmond & Clayman, P.C. 1625 Massachusetts Avenue, N.W., Suite 700 Washington, D.C. 20036-2243 Richard Rosenblatt ([email protected]) Richard Rosenblatt & Associates, LLC 8085 East Prentice Avenue Greenwood Village, CO 80111

s/_____Thomas B. Buescher____ Thomas B. Buescher

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