Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02531-JLK

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 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. _______________________________________________________________________________ BNSF'S RESPONSE OPPOSING GO-245'S MOTION TO REOPEN _______________________________________________________________________________ The BNSF Railway Company (BNSF) 1 asks the Court to deny the motion to reopen the case of United Transportation Union General Committee of Adjustment GO-245 (GO-245). I. INTRODUCTION BNSF will not recount this matter's lengthy factual history. The motion to reopen can be addressed fully with only a few exhibits supplementing the ones attached to the motion to reopen or previously filed with the Court. There are at least four bases on which GO-245's motion should be denied. First, GO-245's sole remedy, if any, is to seek enforcement of Special Board of Adjustment (SBA) No. 1155, not to reopen this case. Second, the remedy for any contractual

While this matter has been pending, The Burlington Northern and Santa Fe Railway Company changed its name to BNSF Railway Company.

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violations must be sought in arbitration, not federal court. Third, the motion is premature in light of the suit by the Brotherhood of Locomotive Engineers and Trainmen (BLET) to have SBA No. 1155 set aside. Fourth, any dispute over BNSF's new application of the Flow Back Agreement is a minor one. II. ARGUMENT AND AUTHORITY A. Reopening suit for an arbitrated minor dispute is procedurally incorrect. The Railway Labor Act (RLA) scheme for settling minor disputes is set out fully in Section 3, First. 45 U.S.C. § 153, First. Where, as here, a board of adjustment has resolved the issue put before it, the prevailing party's sole remedy in federal court is enforcement of the award pursuant to 45 U.S.C. § 153, First (p) or (q). 2 The remedy is not to have a federal court rehash the major-minor issue or to dole out any sort of major-dispute-type injunctive relief (which is clearly what GO-245 is seeking here). 3 As a result, the motion to reopen should be denied. B. GO-245 is impermissibly seeking an arbitration remedy in federal court. The award Arbitrator Parker issued clearly states that she did not have jurisdiction to fashion a remedy for any contractual violation she found. See SBA No. 1155 at 33. As a result,

See, e.g., CSXT v. UTU, 879 F.2d at 1005 (if dissatisfied with arbitration remedy, union's recourse was review of award under Section 3, First (q)); see also General Committee of Adj. v. CSX, 893 F.2d 584, 593 (3rd Cir. 1990) ("Both the Union and the Railroad will have ample opportunity after a decision by the Board to seek judicial review or enforcement of any arbitration award [under] 45 U.S.C. § 153, First (p), (q) . . . .").

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See General Committee of Adj., 893 F.2d at 593 ("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.").
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she properly held that the Board "was expressly directed not to fashion a remedy." Id. But GO245 now apparently seeks to have this Court fashion a remedy rather than have the remedy decided by an adjustment board under Section 3 of the RLA. That is clearly impermissible under the Act. As this Court correctly noted, the underlying dispute here is a minor one over which only an RLA adjustment board has jurisdiction. Order on Pending Motions, dated June 27, 2005, p. 8. Both the liability and remedy questions are part of the same minor dispute. As a result, a separate adjustment board must resolve the minor-dispute remedy issue before this matter is complete. And under Conrail, 4 BNSF is entitled to apply its interpretation of a remedy

reasonably derived from Arbitrator Parker's award in the meantime. See Conrail, 491 U.S. at 310, and Letter of Gene L. Shire to Mr. J.A. Huston and R.S. Knutson (Shire Letter) (Exhibit A attached hereto) (explaining BNSF's position on the remedy it has imposed to ensure that no former BN conductors are affected adversely by the Flow Back Agreement). C. GO-245's motion is premature given the BLET's suit to set aside SBA No. 1155. GO-245's motion to reopen is also premature given the BLET's lawsuit filed September 7, 2007 to set aside SBA No. 1155. The BLET contends that to the extent the Arbitrator Parker's award modifies the Flow Back Agreement (an agreement that BLET signed and is a party to), SBA No. 1155 is invalid because the BLET did not have full-party status at the arbitration. The BLET's lawsuit to vacate SBA No. 1155 was filed on September 7, 2007 in the U.S. District Court for the District of

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Consolidated Rail v. Railway Labor Exec. Ass'n, 491 U.S. 299 (1990) (Conrail).

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Colorado and it is currently assigned to Judge Marcia S. Krieger. GO-245 has since moved to have that case transferred to this Court. GO-245's motion to reopen is premised wholly on the entry (and presumed validity) of SBA No. 1155. See Motion to Reopen at 2. Now that the SBA No. 1155 is under direct

challenge, the motion to reopen is premature until the district court rules (and no appeal is taken) or the Tenth Circuit issues an opinion resolving BLET's claims. GO-245 may argue that its motion is somehow still ripe. But it cannot dispute that if a district or appellate court vacates SBA No. 1155, GO-245 has no basis to reopen this lawsuit. And since that is the case, any motion to reopen is premature until the BLET's claims are fully resolved. D. In any event, this is still at most a minor dispute over which the Court lacks jurisdiction. Once a dispute has been classified as minor, it remains subject to the minor dispute procedures even if the carrier loses the arbitration. CSX Transp., Inc. v. United Transp. Union, 879 F.2d 990, 1003- 05 (2nd Cir. 1989)(dispute over line sale remained minor dispute even after carrier lost arbitration); see also General Committee of Adj., 908 F.2d at 157-58. Here, the Court correctly held that the underlying dispute over the Consolidated Yards Agreement was minor. Order on Pending Motions, June 27, 2005, p. 8. So the dispute remains a minor one

notwithstanding the issuance of Arbitrator Parker's award. Moreover, the dispute no longer stands on the same factual footing as it did when originally presented to Arbitrator Parker. At that time, a train-service employee working in a Kansas City former Santa Fe engineer position could use the Flow Back Agreement to return to a former Santa Fe conductor position and then exercise rights as a conductor in ground service to move to a former BN position. Both GO-245's chief complaints in the arbitration and Arbitrator

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Parker's analysis center on that point ­ the adverse effect Flow Back had on GO-245's members. 5 To the extent GO-245 now claims that there must be joint participation from both GO-245 and GO-009 for any agreement having any effect on any conductor working in the consolidated yards, that is incorrect. GO-245 itself has negotiated many deals unilaterally that affect only its membership (some of whom work on jobs within the Kansas City Consolidated Yards). One such agreement, which GO-009 did not approve or sign, is attached hereto as Exhibit B. So any such overbroad interpretation of the award by GO-245 is in reasonable dispute and subject to arbitration. As of September 7, 2007, BNSF is no longer applying the Flow Back Agreement in any manner having an adverse impact on GO-245's membership. See Shire Letter at 3-4 (attached hereto as Exhibit A) (explaining that when any employee uses ATSF seniority under the Flow Back Agreement to reenter ground service "[t]he individual cannot exercise BN seniority and cannot enjoy any benefit associated with any former BN agreement provision."). In any event, Arbitrator Parker was not asked to determine whether the Flow Back Agreement was null and void without GO-245's signature. She was asked to determine only whether Article 50 was "violated by BNSF and GO-009's implementation of the `Flow Back Agreement' in the Consolidated Kansas City Yards?" SBA no. 1155 at 2 (emphasis added). That question over the previous implementation of the Flow Back Agreement is the one Arbitrator Parker had jurisdiction to answer. BNSF is now implementing flow back differently than it did

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See SBA No. 1155 at 14 ("According to . . . current GO-245 General Chairman Randall S. Knutson, the Flow Back Agreement as applied in the Consolidated Yards has had a significant adverse effect on trainmen represented through GO-245"); 14-15 (noting all the potential adverse effects on former BN trainmen, who are represented by GO-245); 30-31(noting the adverse effects on former BN trainmen by Flow Back's application)

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when GO-245's claim was filed.

See Shire Letter.

If GO-245 disagrees with BNSF's

reasonable (and new) interpretation of the relevant agreements and Arbitrator Parker's award, the resulting minor dispute can be settled by another adjustment Board under the RLA's Section 3 procedures. See 45 U.S.C. § 153, First. 6 III. CONCLUSION For the reasons stated, BNSF asks the Court to deny GO-245's motion to reopen. Dated this 21st day of September, 2007. Respectfully submitted, s/ Walter J. Downing Walter J. Downing, Esq. Hall & Evans, L.L.C. 1125 - 17th Street, Suite 600 Denver, CO 80202-2052 Telephone: 303-628-3300 Fax: 303-628-3368 E-Mail: [email protected] David M. Pryor Texas Bar No. 00791470 BNSF Railway Company 2500 Lou Menk Drive Fort Worth, Texas 76131-2828 (817) 352-2358 (817) 352-2399 FAX Attorneys for Defendant BNSF

In the interest of brevity, BNSF refers the Court to the major-minor dispute standards set out at length in BNSF's brief supporting its motion to dismiss.

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 21st day of September 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Martin D. Buckley Michael J. Belo Berenbaum, Weinshienk & Eason, P.C. 370 Seventeenth Street, Suite 4800 Denver, CO 80202-5698 [email protected] [email protected] John O'B. Clarke, Jr. Highsaw, Mahoney & Clarke, P.C. 1050 17th Street, N.W., Suite 444 Washington, D.C. 20036 [email protected] Thomas B. Buescher Buescher, Goldhammer, Kelman & Dodge, P.C. 1563 Gaylord Street Denver, CO 80206 [email protected] John A. Edmond Guerrieri, Edmond & Clayman, P.C. 1625 Massachusetts Avenue, N.W., Suite 700 Washington, D.C. 20036-2243 [email protected] Richard Rosenblatt Richard Rosenblatt & Associates LLC 8085 E. Prentice Avenue Greenwood Village, CO 80111 rrosenblatt@cwa-union-org Harold A. Ross 23195 Stoneybrook Drive North Olmsted, OH 44070 [email protected]

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s/Debra K. Baumgard, Secretary Walter J. Downing, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 303-628-3300 303-628-3368 ­ Fax [email protected] Attorneys for Defendant

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