Free Motion to Reopen Case - 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. __________________________________________________________________________ MOTION BY PLAINTIFF TO REOPEN THE CASE AND TO SCHEDULE A STATUS CONFERENCE __________________________________________________________________________

On January 2, 2007, this Court entered an order reinstating its earlier order directing defendant General Committee of Adjustment GO-009 of the United Transportation Union (UTU) to participate in the appropriate adjustment board proceedings under the Railway Labor Act, 45 U.S.C. § 151, et seq. That arbitration was to resolve a contract-interpretation dispute as to whether GO-009 and defendant BNSF Railway Company1/ were prohibited by a contract between them and plaintiff UTU General Committee of Adjustment GO-245 from applying to the Consolidated Kansas City Yards a collective bargaining agreement (the "Flow Back Agreement") with another labor

At the time this action was brought, BNSF was named Burlington Northern And Santa Fe Railway Company; it has since changed its name to BNSF Railway Company.

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organization, defendant Brotherhood of Locomotive Engineers (BLET),2/ without first obtaining GO245's approval. That order also stayed the action and closed it administratively "until such time as the adjustment board has ruled in this dispute . . . ." On August 29, 2007, the adjustment board issued its Award in this dispute, ruling that: "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." August 29, 2007 Award at 33. By this motion, plaintiff GO-245 respectfully requests that this Court reopen this proceeding so that the Court may enforce by appropriate equitable relief Sections 2 First and 2 Seventh of the Railway Labor Act, 45 U.S.C. §§ 152 First and 152 Seventh, which defendant BNSF has violated by applying the Flow Back Agreement to the Consolidated Kansas City Yards. Plaintiff also suggests that this case is appropriate for summary judgment and it therefore requests that, once this case is reinstated, this Court conduct a status hearing to establish a schedule to resolve this case, including setting a briefing schedule for the appropriate motions. Plaintiff states as follows in support of this motion. 1. On December 31, 2001, plaintiff GO-245 filed a complaint against BNSF Railway

Company and both the UTU and BLET. That Complaint challenged defendants' right to have entered into Flow Back Agreement by which engineers were allowed to exercise "ground service" seniority

During the pendency of this litigation, BLE merged with the International Brotherhood of Teamsters (IBT) and is now a division of that organization called the Brotherhood of Locomotive Engineers & Trainmen (BLE&T), a Division of the Rail Conference of the IBT. -2-

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in yards in Kansas City governed by the Consolidated Yard Schedule­a collective bargaining agreement to which GO-245 is a party. 2. GO-245 maintained that BNSF violated the Railway Labor Act when it entered into

the Flow Back Agreement because, GO-245 asserted, Article 50 of the Consolidated Yard Schedule prohibited GO-009 from entering into an agreement with BNSF "which affects the Consolidated Kansas City Yards without the other General Committee's [i.e., GO-245's] approval." Docket #1, Complaint at 5, ¶ 11. GO-245 maintained that since it had not concurred in allowing BNSF engineers to "flowback" into the Kansas City yards, Sections 2 First and 2 Seventh of the Act prohibited BNSF from applying the Flow Back Agreement to the Consolidated Kansas City Yards. Complaint at 10, ¶ 25. 3. GO-245 recognized that its reading of Article 50 raised a contract-interpretation

dispute within the exclusive jurisdiction of Railway Labor Act adjustment boards (Complaint at ¶ 19) and it therefore asked GO-009 to utilize the Act's adjustment board procedures to determine whether the Consolidated Yard Schedule required GO-009 to obtain GO-245's concurrence before it could enter into the Flow Back Agreement. When GO-009 declined to adjust that dispute, GO-245 amended its complaint to add GO-009 as a defendant and to seek relief against GO-009. Docket No. 2, Amended Complaint at 8, ¶¶ 22-24. That Amended Complaint requested that this Court direct GO-009, along with BNSF, to arbitrate the dispute as to whether the Consolidated Yard Schedule prohibited BNSF and GO-009 from entering into the Flow Back Agreement without the concurrence of GO-245. Amended Complaint at 11, ¶ C. 4. Plaintiff asked in both its initial complaint (Complaint at 9, ¶ B) and in its amended -3-

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complaint (Amended Complaint at 11, ¶ D) that: Following the award of the adjustment board declaring that the Flow-Back Agreement affected the Kansas City Consolidated Yards and could not be entered into without the approval of plaintiff, declare 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 . . . . 5. Plaintiff's complaint and amended complaint further requested permanent injunctive

relief enjoining defendants "from applying the Flow-Back Agreement to the Kansas City Consolidated Yards" (e.g., Amended Complaint at 11, ¶ E) and such other equitable relief that this Court "deems just and proper . . . ." Id. at 11, ¶ F. 6. Defendants moved to dismiss, while plaintiff moved for partial summary judgment.

In particular, plaintiff asked for an order directing GO-009 and BNSF to arbitrate the "minor dispute" over whether the provisions of the Consolidated Yard Schedule, as GO-245 maintained, required GO-245's concurrence before BNSF and GO-009 could enter into the Flow Back Agreement insofar as that agreement allowed engineers to "flowback" into the Kansas City yards. 7. On June 27, 2005, this Court issued an Order on Pending Motions, which was entered

on June 28, 2005. Docket No. 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 -4-

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minor dispute for this purpose). 8. Following that ruling, the parties conferred and reached a settlement. Based on that

settlement, this Court dismissed the suit on April 10, 2006. In December 2006, however, the UTU declared that settlement void and instructed the BNSF to disregard it, which BNSF did. 9. Plaintiff thereafter filed an unopposed motion (Docket #45) to vacate that order of

dismissal, which this Court granted on January 2, 2007. Docket #47. 10. The January 2, 2007 Order, as had the June 2005 Order, 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 parties shows good cause that this action should be reopened. The parties shall promptly inform this court when the adjustment board issues its decision." 11. Thereafter, BNSF, GO-009 and GO-245 entered into an agreement establishing a

Special Board of Adjustment to hear and decide the dispute over whether BNSF and GO-009 violated Article 50 of the Consolidated Kansas City Yards Schedule when they applied the Flow Back Agreement to the consolidated Kansas City Yards without first obtaining GO-245's approval. On March 13, 2007, the National Mediation Board established Special Board of Adjustment No. 1155 pursuant to the parties' request and the parties subsequently selected Joan Parker as the neutral with authority to render the award for the adjustment board. 12. On July 13, 2007, the Board held a hearing and on August 29, 2007, it issued its

award. A true and accurate copy of that award is attached hereto. 13. At the hearing, the parties agreed that the board should decide two issues. They

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agreed that the first issue to be decided was as follows: "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. The second issue was raised by GO-009 and dealt with its assertion that there was an alternative contractual basis for the flowback rights at issue. When the parties were unable to reach an agreement as to the formulation of that issue, the board framed it as follows (Award at 2): If application of the Flow Back Agreement in the Consolidated Kansas City Yards violated Article 50 of the Consolidated Kansas City Yards Schedule Agreement, such that the Flow Back Agreement may not be applied in the Consolidated Kansas City Yards, will the provisions of the former Santa Fe "1973 Single Seniority Agreement" then apply under the January 27, 2000 Letter of Understanding between BNSF, UTU and BLE? 14. 33): 1. 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. 2. In any event, 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. 15. Following the issuance of SBA No. 1155's Award, plaintiff asked that BNSF agree On August 29, 2007, SBA No. 1155 issued its award deciding as follows (Award at

to discontinue applying the Flow Back Agreement in the Consolidated Kansas City Yards, but BNSF has declined and, instead, has informed GO-245 that it will continue to apply the agreement to the consolidated yards albeit in a modified form that will limit some­but not all­movement within the -6-

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yards. Additionally, BNSF will not require those former Burlington Northern engineers/ground service employees who used the Flow Back Agreement to obtain ground service positions in the consolidated yards to return to engine service. 16. Now that SBA No. 1155 has resolved the contract-interpretation issue embedded in

GO-245's suit to enforce the Railway Labor Act's command in Section 2 Seventh of that Act that "[n]o carrier . . . shall change the rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements except in the manner prescribed in such agreements or in section 6" of the Act (45 U.S.C. § 152 Seventh), GO-245 submits that this case is ripe for resolution on the merits of the statutory violation asserted in the complaint. Accordingly, by this motion, plaintiff GO245 respectfully requests that this Court reopen this case and reinstate it on the active docket. 17. Plaintiff GO-245 further submits that this case is susceptible to resolution by a motion

for summary judgment. Accordingly, it suggests that this Court schedule this matter for a status conference at which time the Court may establish a schedule for the parties to file and brief whatever dispositive motions they believe are appropriate. 18. Counsel for plaintiff has informed counsel for defendants that this motion to reopen

would be made and requested their clients' consent. Plaintiff's counsel has been informed by BNSF's and UTU's counsel that their clients intended to comply with the Award but that they will oppose this motion to reinstate this case. Plaintiff has not been able to ascertain defendant BLET's position on this motion. WHEREFORE, plaintiff GO-245 respectfully requests that this Court: (1) reopen and reinstate this case; and (2) schedule a status conference at which the parties may advise this Court -7-

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how they believe this case should proceed. Plaintiff submits that the Court should establish at that conference a schedule for the filing and briefing of whatever dispositive motions the parties believe are appropriate. Respectfully Submitted this 7th day of September 2007

/s/ Martin D. 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

/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

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CERTIFICATE OF SERVICE I hereby certify that I have this 7th day of September, 2007, caused a copy of the foregoing Motion By Plaintiff To Reopen The Case, with attached SBA No. 1155 Award, 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 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.

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