Free Motion to Consolidate Cases - 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. __________________________________________________________________________ Civil Action No. 1:07-cv-01889-MSK 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. __________________________________________________________________________ MOTION TO CONSOLIDATE __________________________________________________________________________ General Committee of Adjustment GO-245 of the United Transportation Union, a plaintiff in No. 01-cv-2531, and a respondent in No. 07-cv-1889, respectfully requests, pursuant to Rule 42(a), Fed. R. Civ. P., and D.C.COLO.LCivR 42.1, that the Court consolidate the Petition For Review that petitioner Brotherhood of Locomotive Engineers & Trainmen, IBT (BLET) filed on September 7, 2007, with GO-245's pending suit. BLET's Petition seeks to set aside the award of the Special Board of Adjustment that was established to hear and decide the dispute this Court directed

Case 1:01-cv-02531-JLK

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be adjusted in No. 01-cv-2531. GO-245 states as follows in support of this motion. 1. GO-245's suit names BNSF Railway,1/ the United Transportation Union (UTU),

another UTU General Committee of Adjustment­GO-009­and BLET2/ as defendants in GO-245's efforts to enforce the commands of the Railway Labor Act. GO-245's suit sought to enjoin defendants, including BLET, from enforcing an agreement in the Consolidated Kansas City yards, known as the "Flow Back Agreement," by which engineers may exercise their ground-service seniority in the consolidated yards. GO-245 asserted in its suit that two of the parties to the Flow Back Agreement, namely GO-009 and the BNSF, were parties to an agreement with GO-245, known as the "Consolidated Kansas City Yards Schedule." That collective bargaining agreement provided in Article 50 that neither GO-009 nor GO-245 would enter into an agreement with BNSF that "affected" the consolidated Kansas City Yards without first obtaining the other Committee's approval. GO-245 maintained that the Flow Back Agreement with the BLET "affected" the consolidated Kansas City yards and since GO-245 had not approved the application of the Flow Back Agreement to the consolidated yards, that agreement could not be applied to the consolidated yards. 2. GO-245 recognized that its interpretation of Article 50 of its agreement with GO-009

At the time GO-245 brought its suit, BNSF Railway Company was named The Burlington Northern and Santa Fe Railway Company; it has since changed its name to BNSF Railway Company. When General Committee GO-245 v. BNSF was brought, the BLET was named the Brotherhood of Locomotive Engineers. That labor organization subsequently merged with the International Brotherhood of Teamsters (IBT), becoming a division of the IBT's Rail Conference and was renamed as the Brotherhood of Locomotive Engineers & Trainmen, a Division of the Rail Conference of the IBT. -22/

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Case 1:01-cv-02531-JLK

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and BNSF raised a contract-interpretation dispute within the exclusive jurisdiction of the Railway Labor Act's adjustment boards, and when GO-009 refused to adjust that dispute, GO-245 amended its complaint to ask that GO-009 be compelled to adjust that dispute. On June 27, 2005, this Court issued an Order on Pending Motions in GO-245's suit, which order was entered on June 28, 2005. D. CO No. 01-cv-2531, Docket #39. That Order provided (Order at 14): To eliminate any question as to GO-009's duty to participate in the arbitration of the dispute between it, GO-245 and BNSF regarding the meaning and application of Article 50 to the Flow-Back Agreement, I grant GO-245's request for an order compelling GO009 to participate in this arbitration before the adjustment board. I will also stay this action as requested so that any rights revealed by the adjustment board's contract interpretation may be protected if necessary. See Order of Ry. Conductors v. Pitney, 326 U.S. 561, 568 (1946) (directing district court to stay dismissal of action involving minor dispute for this purpose). That order directed General Committee GO-009 "to participate in the appropriate RLA adjustment board proceeding to resolve the dispute between it, GO-245 and BNSF regarding the meaning and application of Article 50 of the Consolidated Yards Schedule." D. CO No. 01-cv-2531, Docket #39 (Order at 14). That order also stayed and administratively closed the case while the appropriate parties "adjusted" the contract-interpretation dispute. Id. at 14-15. 3. Following a failed settlement, the June 2005 Order was reinstated on January 2, 2007.

D. CO No. 01-cv-2531, Docket #47. That order directed GO-009 to participate in the adjustment of the dispute over the meaning of Article 50 of the BNSF, GO-245 and GO-009 agreement (Order at 1) and it provided that (Order at 2): "[T]his action is STAYED and ADMINISTRATIVELY CLOSED until such time as the adjustment board has ruled in this dispute or one or more of the

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Case 1:01-cv-02531-JLK

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parties shows good cause that this action should be reopened. The parties shall promptly inform this court when the adjustment board issues its decision." 4. GO-245, GO-009 and BNSF subsequently entered into an agreement establishing

Special Board of Adjustment No. 1155 (SBA No. 1155) pursuant to Section 3 Second, 1st Paragraph, of the Railway Labor Act, 45 U.S.C. § 153 Second, 1st ¶. That board heard the dispute that this Court had directed be adjusted and on August 29, 2007 issued its award. 5. Following the issuance of that Award, GO-245 asked this Court on September 7,

2007, to reopen its case and to schedule a status conference. D. CO No. 01-cv-2531, Docket #50. On September 10, 2007, this Court entered an order instructing defendants­including BLET­to file their responses to GO-245's motion by September 21, 2007. 6. However, on September 7, 2007, BLET filed its petition to review SBA No. 1155's

award, asserting that the Award "failed to comply with the requirements of the requirements of the RLA and denied BLET due process." BLET Petition at ¶ 28. The Award was infirm, BLET asserts, because BLET was "denied the right to participate and be accorded full party status in the SBA 1155 proceeding." Id. at ¶ 23. 7. GO-245 respectfully submits that the litigation BLET has filed involves the same

subject matter and parties as the suit in D. CO No. 01-cv-2531. Indeed, one of the reasons GO-245 named BLET as a party to its suit was because the relief GO-245 was, and still is, requesting will affect BLET and its members. This Court agreed with that assessment of BLET's interests in GO-

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245's litigation.3/ 8. Once GO-245's case is reopened, BLET will have the right to raise in GO-245's

litigation, the claim it is making in its Petition For Review that SBA 1155 should have allowed it to participate in the board's interpretation of Article 50 of the Consolidated Yards Schedule. Thus, BLET's separate suit is in essence its opposition to GO-245's request for relief and should be heard together with GO-245's suit. 9. GO-245 respectfully submits that consolidation is appropriate because the two actions

arise out of the same matter and involve common questions of law and fact. Moreover, consolidation will conserve judicial resources and avoid the possibility of inconsistent rulings. 10. Counsel for GO-245 has informed counsel for the other parties that this motion would

be made. Counsel has been informed that defendants BLET, BNSF, UTU and GO-009 oppose the motion to consolidate because they maintain that the motion to reopen GO-245's case should not be granted. However, they do not oppose a motion to reassign the BLET's petition to Judge Kane. While GO-245 agrees that it is preferable that BLET's petition be reassigned to Judge Kane because of his familiarity with this litigation, GO-245 is not making a separate motion for reassignment.

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In its June 2005 Order, this Court stated (Docket #39 at 11): 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. -5-

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Rather, GO-245's motion is simply that the two cases be consolidated. If that motion is granted, D.C.COLO.LCivR 42.1 provides that: "Cases consolidated shall be assigned for all further purposes to the judicial officer to whom the lowest numbered consolidated case previously was assigned for trial." In these cases, that is Judge Kane. However, D.C.COLO.LCivR 42.1 further provides that: "A case not consolidated shall remain assigned to the judicial officer before whom it was pending when the motion to consolidate was filed." Thus, D.C.COLO.LCivR 42.1 does not provide for reassignment outside of consolidation, and GO-245 makes no such motion to reassign this case outside of D.C.COLO.LCivR 42.1. WHEREFORE, GO-245 respectfully requests, pursuant to D.C.COLO.LCivR 42.1, that this Court consolidate for all further purposes BLET's Petition For Review with GO-245's suit. Respectfully Submitted this 14th day of September 2007

/s/ Martin Buckley 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

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Case 1:01-cv-02531-JLK

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/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 General Committee GO-245

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Case 1:01-cv-02531-JLK

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CERTIFICATE OF SERVICE I hereby certify that I have this 14th day of September, 2007, caused a copy of the foregoing Motion To Consolidate to be served by email and by first-class mail, postage prepaid, and properly addressed 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 John A. Edmond ([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 Michael S. Wolly ([email protected]) Zwerdling, Paul, Kahn & Wolly, P.C. 1025 Connecticut Ave., N.W., Suite 712 Washington, D.C. 20036-5405 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.

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