Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02531-JLK

Document 55

Filed 09/21/2007

Page 1 of 8

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, UNITED TRANSPORTATION UNION, Plaintiff, v. BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, UNITED TRANSPORTATION UNION, BROTHERHOOD OF LOCOMOTIVE ENGINEERS, and GENERAL COMMITTEE OF ADJUSTMENT GO-009, Defendants.

UTU DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION TO REOPEN THE CASE AND SCHEDULE A STATUS CONFERENCE

Defendants United Transportation Union ("UTU") and UTU General Committee of Adjustment GO-009 (collectively "UTU Defendants") hereby submit their opposition to Plaintiff's motion to reopen this case and schedule a status conference.

Case 1:01-cv-02531-JLK

Document 55

Filed 09/21/2007

Page 2 of 8

BACKGROUND On December 31, 2001, Plaintiff General Committee of Adjustment GO-245 initiated this action. GO-245 represents trainmen employed on the former Burlington Northern ("BN") lines of Defendant BNSF Railway Company. Defendant General Committee of Adjustment GO-009 represents trainmen employed on the former Atchison, Topeka & Santa Fe Railroad ("ATSF") lines of BNSF. Plaintiff GO-245 alleged that Defendants had violated the Railway Labor Act ("RLA"), because they applied a collective bargaining agreement, known as the Flow Back Agreement, to the consolidated Kansas City Yards without the approval of GO-245. According to Plaintiff, its prior approval was required under Article 50 of the Consolidated Yards Schedule Agreement, which provided that neither GO-009 or GO-245 could enter into an agreement affecting the Kansas City Yards without the other committee's approval. In an Order dated June 27, 2005, this Court determined that the parties dispute over the meaning and application of Article 50 of the Consolidated Yards Schedule Agreement was a minor dispute under the RLA. The Court ordered that the parties submit their dispute to the appropriate RLA adjustment board. Accordingly, the parties submitted their dispute to Special Board of Adjustment ("SBA") 1155 with arbitrator Joan Parker acting as the neutral board member. On August 29, 2007, SBA 1155 issued a decision finding that the application of the Flow Back Agreement affected the consolidated Kansas City Yards in

-2-

Case 1:01-cv-02531-JLK

Document 55

Filed 09/21/2007

Page 3 of 8

some respects within the meaning of Article 50. Defendants BNSF, UTU, and GO-009 have indicated to Plaintiff that they intend to comply with the decision issued by SBA 1155. On September 7, 2007, the Brotherhood of Locomotive Engineers and Trainmen ("BLET") initiated an action in this Court seeking to vacate the SBA 1155 decision. BLET v. BNSF Railway Co., No. 1:07-cv-01889-MSK. In its petition, BLET asserts that it was denied full party status in the SBA 1155 proceeding in violation of the requirements of the RLA and due process. ARGUMENT The Court should decline Plaintiff's invitation to reopen this case for three reasons. First, Plaintiff's contention that an arbitration award in its favor somehow transforms this case into a major dispute is incorrect as a matter of law. Second, there is no need to reopen the case because Defendants are complying with the arbitration award. Lastly, reopening this case is premature in light of BLET's petition to vacate the arbitration award. In seeking to reopen this matter, Plaintiffs assert that there is a major dispute under the Railway Labor Act ("RLA"), 45 U.S.C. § 152, Seventh, within the jurisdiction of this Court. Plaintiff's contention is incorrect. As this Court recognized in its June 27, 2005 Order in this case, "[t]he Railway Labor Act identifies three types of disputes - major disputes, minor disputes and representational disputes - and provides each with a unique dispute resolution procedure." Order, dated June 27, 2005, at 7. The Court further held that

-3-

Case 1:01-cv-02531-JLK

Document 55

Filed 09/21/2007

Page 4 of 8

"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." Id. at 8. The proper RLA adjustment board has now resolved that dispute and ruled in favor of Plaintiff's position on the matter. The arbitration decision in Plaintiff's favor does not transform this matter into a major dispute, as Plaintiff appears to contend. To the contrary, "[o]nce a minor dispute, always a minor dispute." Chicago & N.W. Transp. Co. v. Railway Labor Executives' Ass'n, 908 F.2d 144, 157 (7th Cir. 1990). Indeed, if Plaintiff's view were correct, every time an arbitrator ruled against an employer on a matter of contract interpretation, a major dispute would result. Such as a result is directly contrary to the scheme of the RLA, which provides unique and separate avenues for resolving minor and major disputes.1/ Plaintiff's motion to reopen should also be denied because Defendants are complying with the decision of SBA 1155. This Court retained jurisdiction over this action in order, if necessary, to enforce the decision of the RLA adjustment board. Order, dated June 27, 2005, at 14 (action stayed "so that any rights revealed by the adjustment board's contract interpretation may be protected if necessary"). As Defendants have made clear to Plaintiff, however, they intend to comply with the ruling of SBA 1155. Accordingly, there is no need To the extent that there is any dispute regarding the meaning or interpretation of the SBA 1155 decision, such a dispute would also lie within the jurisdiction of the adjustment board. See 45 U.S.C. § 153 First(m); Bhd. of Maintenance of Way Employees v. Burlington N. R.R. Co., 24 F.3d 937, 938 (7th Cir. 1994). -41/

Case 1:01-cv-02531-JLK

Document 55

Filed 09/21/2007

Page 5 of 8

to enforce the arbitration decision and, in fact, Plaintiff has not moved to enforce the decision under the applicable provision of the RLA, 45 U.S.C. § 153 First(p). Defendants intend to comply with the arbitration decision by eliminating the effects of the Flow Back Agreement on the consolidated Kansas City Yards. SBA 1155 determined that, because the Flow Back Agreement "affects" the consolidated Kansas City Yards within the meaning of Article 50 of the Consolidated Kansas City Yards Schedule, that the Flow Back Agreement could not be applied to the Yards absent the approval of GO-245. SBA 1155 Award at 31.2/ The board identified two ways in which the Flow Back Agreement affects the Yards. First, the Flow Back Agreement permitted engineers to flow back into ATSF-allocated positions from which the former engineer could exercise BN ground seniority, thus pushing other employees on the BN roster down into less desirable positions. Id. at 30. Second, former engineers moving into BN-allocated positions diminished the proportional share of employees in the BN productivity fund. Id. In response to these determinations, BNSF's General Director of Labor Relations has made clear that the Flow Back Agreement will no longer be applied in a manner that "affects" the Yards, as determined by SBA 1155. Thus, BNSF will "no longer allow employees moving from an ATSF engine-service position to an ATSF ground-service position to then exercise different seniority to a BN ground-service position." Letter, dated
2/

A copy of the SBA 1155 Award is attached to Plaintiff's Motion to Reopen the -5-

Case.

Case 1:01-cv-02531-JLK

Document 55

Filed 09/21/2007

Page 6 of 8

Sept. 7, 2007, at 4 (Attachment A hereto). In addition, to the extent that an engineer flowingback cannot exercise BN seniority, the former engineer "cannot enjoy any benefit associated with any former BN agreement provision," including participation in the BN productivity fund. Id. Thus, the Flow Back Agreement has been modified in order to comply with the requirements of the Consolidated Kansas City Yards Schedule, as interpreted by SBA 1155. Because the parties are complying with the arbitration award, we respectfully submit that there is no further action to be taken by this Court. Finally, in light of BLET's petition to set aside the arbitration award issued by SBA 1155, this case should remain closed. In the interest of judicial economy, BLET's challenge to the arbitration decision should be determined before any of the issues that Plaintiff seeks to raise in its motion to reopen. Depending on the outcome of BLET's petition to vacate the arbitration award, Plaintiff's asserted grounds to reopen this case may become moot. CONCLUSION For all the foregoing reasons, the UTU Defendants respectfully request that this Court deny Plaintiff's motion to reopen this case and to schedule a status conference.

-6-

Case 1:01-cv-02531-JLK

Document 55

Filed 09/21/2007

Page 7 of 8

Respectfully submitted,

s/ Carmen R. Parcelli John A. Edmond Carmen R. Parcelli Guerrieri, Edmond, Clayman & Bartos, P.C. 1625 Massachusetts Avenue, N.W. Suite 700 Washington, DC 20036-2243 tel: (202) 624-7400 fax: (202) 624-7420 email: [email protected] [email protected] Richard Rosenblatt Richard Rosenblatt & Assocs., LLC 8085 East Prentice Avenue Greenwood Village, CO 80111 tel: (303) 721-7399 fax: (720) 528-1220 email: [email protected] Dated: September 21, 2007 Counsel for Defendants UTU and UTU General Committee of Adjustment GO-009

-7-

Case 1:01-cv-02531-JLK

Document 55

Filed 09/21/2007

Page 8 of 8

CERTIFICATE OF SERVICE

I hereby certify that on the 21st day of September, 2007, I caused a copy of the foregoing UTU Defendants' Opposition To Plaintiff's Motion To Reopen The Case And Schedule A Status Conference to be served by the Court's electronic filing system:

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 Martin D. Buckley ([email protected]) Michael J. Belo ([email protected]) Berenbaum, Weinshienk & Eason, P.C. 370 Seventeenth Street, Suite 4800 Denver, CO 80202

John O'B. Clarke, Jr. ([email protected]) Highsaw, Mahoney & Clarke, P.C. 1050 17th Street, N.W., Suite 444 Washington, DC 20036 Michael S. Wolly ([email protected]) Zwerdling, Paul, Kahn & Wolly, P.C. 1025 Connecticut Avenue, N.W., Suite 712 Washington, DC 20036-5405 Thomas B. Buescher ([email protected] Buescher, Goldhammer, Kelman & Dodge, P.C. 1563 Gaylord Street Denver, CO 80206

s/ Carmen R. Parcelli Counsel for Defendants UTU and UTU General Committee of Adjustment GO-009