Free Motion to Vacate - 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. __________________________________________________________________________ UNOPPOSED MOTION BY PLAINTIFF TO VACATE DISMISSAL AND TO REINSTATE ORDER COMPELLING ARBITRATION __________________________________________________________________________

Plaintiff General Committee of Adjustment GO-245 of the United Transportation Union respectfully requests, pursuant to Rule 60(b)(6), Fed. R. Civ. P., that this Court vacate the Order of Dismissal, dated April 10, 2006, and reinstate the Order this Court entered on June 28, 2005, directing defendant General Committee of Adjustment GO-009 of the United Transportation Union "to participate in the appropriate RLA adjustment board proceeding to resolve the dispute between it, GO-245 and [defendant] BNSF [Railway Company] regarding the meaning and application of Article 50 of the Consolidated Yard Schedule." June 28, 2005 Order at 14. Plaintiff states as follows in support of this motion. 1. On December 31, 2001, plaintiff GO-245 filed a complaint against the Burlington

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Northern Santa Fe Railway Company1/ (BNSF), and both the United Transportation Union (UTU) and the Brotherhood of Locomotive Engineers.2/ That Complaint challenged defendants' right to have entered into an agreement called the "Flowback Agreement," by which engineers were allowed to exercise "ground service" seniority in yards in Kansas City governed by the Consolidated Yard Schedule­a collective bargaining agreement to which GO-245 is a party. 2. In its suit, GO-245 maintained that BNSF and the UTU violated the Railway Labor

Act, 45 U.S.C. § 151, et seq., when they entered into the Flowback Agreement because that agreement, GO-245 asserted, was prohibited by Article 50 of the Consolidated Yard Schedule. Docket No. 1, Complaint at 10, ¶ 25. Article 50 provided that "neither [GO-245 nor UTU General Committee of Adjustment GO-009, which was also a party to that agreement] may make an agreement, nor a precedent settlement, nor an agreed understanding, which affects the Consolidated Kansas City Yards without the other General Committee's approval" (Id., Complaint at 5, ¶ 11) and since GO-245 had not concurred in allowing BNSF engineers to "flowback" into the Kansas City yards, GO-009 and BNSF could not enter into the Flowback Agreement. Id., Complaint at 10, ¶ 25. 3. GO-245 asked GO-009 to utilize the Railway Labor Act's adjustment board

procedures to resolve the dispute over whether it was correct in asserting that the Consolidated Yard Schedule required GO-009 to obtain GO-245's concurrence before it entered into the Flowback

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Defendant has since changed its name to BNSF Railway Company.

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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Agreement, and 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 whether the Consolidated Yard Schedule prohibited BNSF and the UTU on behalf of GO-009 from entering into the Flowback Agreement without the concurrence of GO-245. Id., Amended Complaint at 11, ¶ C. 4. Thereafter, defendants moved to dismiss. Plaintiff opposed those motions and moved

for partial summary judgment, and 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 Flowback Agreement insofar as that agreement allowed engineers to "flowback" into the Kansas City yards. 5. 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 14-15): For the reasons stated above, I DENY the motions to dismiss filed by Defendants UTU and GO-009, BNSF and BLE (Docket Nos. 8, 10, 13) and GRANT Plaintiff GO-245's motion for partial summary judgment (Docket No. 21). I further ORDER Defendant 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. Finally, this 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. 6. Following that ruling, the parties conferred and in early 2006 the two General -3-

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Committees and BNSF entered into two letter agreements that resolved the various disputes that led to this suit. Those agreements were fully signed on March 23, 2006. On March 27, 2006, the parties filed a Joint Status Report, informing this Court of the letter agreements and stating that (Docket No. 41 at 2): "Since the parties have resolved the underlying dispute, they jointly request that this Court close this case, with each party to bear its own costs." 7. On April 10, 2006, this Court issued and entered an Order that dismissed the case.

Docket No. 42. As that Order of Dismissal noted, it was being entered "[c]onsistent with the Joint Status Report . . . ." 8. An integral part of the agreements by which the parties resolved their underlying

dispute as to the ability of BNSF engineers to flowback into the consolidated Kansas City yards was the provision of the settlement agreements (Docket No. 41, Attachment dated January 1, 2006 at 2, ¶ 2.3) which provided that: Employees who are otherwise eligible to participate in the accumulation of productivity fund shares under the provisions of their respective former territory's crew consist agreement will not be eligible for the accumulation or accreditation of shares under those terms when working in ground service by virtue of the "Flowback" Agreement. 9. Several BNSF employees whose exercise of ground service seniority into the

consolidated Kansas City yards by virtue of the Flowback Agreement had been disputed by GO-245, challenged the provision in the settlement agreement making them ineligible to participate in the "productivity fund," asserting that the agreement's ineligibility provision breached the union's duty of fair representation to them. Declaration of Randall S. Knutson, executed December 15, 2006, at

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¶ 4. On December 1, 2006, UTU International President Paul C. Thompson informed GO-245, GO009 and another General Committee that he had concluded that the settlement agreements must be set aside because they operated retroactively. (A true and accurate copy of that communication is attached to the Knutson declaration as Knutson Exhibit 1.) He observed that since the engineers who "flowed back" into the consolidated Kansas City yards were working in a craft represented by the UTU, the UTU owed those individuals a duty to represent their interests fairly. Knutson Ex. 1 at 3. He then stated: "To disturb their reliance interest in occupying their current positions under current rules would run the substantial risk of being found to be irrational by a federal court." Id. No such problem would exist, he opined, if the ineligibility provision was made prospective. Since GO-245 was not willing to accept a prospective application of the ineligibility provision, the President stated that (Id.): [Pursuant to his authority under the UTU Constitution] I will inform the carrier to pay all trainmen on the former BN entitled thereto their shares in the GO-245 Productivity Fund, including trainmen who got there from former ATSF trainmen positions after they flowed back from engine service, and that subject agreements are void as settlements of the federal litigation in Denver, meaning arbitration as described in that case must go forward. 10. On December 4, 2006, the UTU President sent the BNSF a letter (a true and accurate

copy of which is attached to the Knutson declaration as Knutson Exhibit 2) stating that the UTU had "determined to void the January 1, 2006 BNSF letter agreements (effective May 1, 2006) . . . . All train service employees entitled to participate in former BN Productivity Trust Funds should be paid December 18, 2006 from those funds regardless of how they came to occupy train service positions." 11. GO-245 has been informed by BNSF that it will abide by the UTU's directive and

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will treat the settlement agreements as void. Knutson Dec. at ¶ 7. 12. Plaintiff submits that, as shown by the Memorandum that is being filed with this

motion, the repudiation of the settlement agreements by both UTU and BNSF constitutes "extraordinary circumstances" which warrants vacating the April 10, 2006 Order of Dismissal pursuant to Rule 60(b)(6), Fed. R. Civ. P. Rule 60(b) provides that: "On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: . . . (6) any other reason justifying relief from the operation of the judgment." As explained in Moore's Federal Practice 3d § 60.48[3][d]: "A number of courts have permitted relief from a judgment entered pursuant to a settlement agreement when, subsequent to the judgment, one of the parties fails to perform according to the terms of the settlement agreement." (Footnote omitted.) 13. Here, the Order of Dismissal was entered following a settlement agreement which the

parties, including defendant UTU, brought to this Court's attention in the Joint Status Report that the parties filed on March 27, 2006. That settlement agreement, the parties stated in their Joint Status Report, "resolved the underlying dispute" and, therefore, "they jointly request[ed] that this Court close this case" (Docket No. 41, Joint Status Report, at 2; emphasis added), which this Court did. 14. Plaintiff has opposed the UTU's decision to void the settlement agreement and has

not acquiesced in the UTU's unilateral abrogation of that agreement. Knutson Dec. at ¶ 6. Since the UTU's actions, and the BNSF's acquiescence in those actions, has deprived plaintiff of the consideration which led it to join in the request to dismiss this suit, the "`grand reservoir of equitable power to do justice in a particular case,'" which Rule 60(b)(6) gives this Court (Pierce v. Cook & -6-

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Co., Inc., 518 F.2d 720,722 (10th Cir. 1975) (en banc), cert. denied, 423 U.S.1079 (1976), quoting Radack v. Norwegian America Line Agency, Inc., 318 F.2d 538, 542 (2d Cir. 1963), which in turn quoted Moore's Federal Practice (1950 Ed.)), makes it appropriate to set aside the Order of Dismissal. Plaintiff's reliance on Rule 60(b)(6) does not run afoul of Kokkonen v. Guardian Life Insurance Co., 511 U.S. 375 (1994),3/ because plaintiff is not asking this Court to enforce the settlement agreement­something that Kokkonen held required its own jurisdictional base. Rather, as Kokkonen implicitly recognized Rule 60(b)(6) allows, plaintiff is asking that the order of dismissal be vacated and that plaintiff be placed in the litigation posture it was in prior to that dismissal by reinstating the Order requiring GO-009 and BNSF to arbitrate the contract interpretation issue. Fairfax Countywide Citizens Association v. County of Fairfax, 571 F.2d 1299, 1302-03 (4th Cir.), cert. denied, 439 U.S. 1047 (1978) ("We are in agreement with the Sixth Circuit that, upon repudiation of a settlement agreement which had terminated litigation pending before it, a district court has the authority under Rule 60(b)(6) to vacate its prior dismissal order and restore the case to its docket") (footnote omitted). 15. Counsel for plaintiff has informed counsel for defendants BNSF, UTU, GO-009 and

BLE&T that this motion would be made and has been authorized to state that no defendant will oppose this motion.

Kokkonen is instructive as to the Court's power under Rule 60(b)(6), Fed. R. Civ. P., for the Court stated that: "It must be emphasized that what respondent seeks in this case [and what the Court held the district court did not have jurisdiction to give] is enforcement of the settlement agreement, and not merely reopening of the dismissed suit by reason of breach of the agreement that was the basis for dismissal. Some Courts of Appeals have held that the latter can be obtained under Federal Rule of Civil Procedure 60(b)(6)." 511 U.S. at 378. Kokkonen did not question this reading of Rule 60(b)(6). -7-

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WHEREFORE, plaintiff GO-245 respectfully requests that this Court vacate its Order of Dismissal, entered April 10, 2006, and reinstate its Order directing defendant 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 Yard Schedule." Respectfully Submitted this 19th day of December, 2006

/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 19th day of December, 2006, caused a copy of the foregoing Unopposed Motion By Plaintiff To Vacate Dismissal And To Reinstate Order Compelling Arbitration, declaration of Randall S. Knutson, and Memorandum of Law In Support Thereof 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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