Wightman v. Springfield Terminal ( 1996 )


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    United States Court of Appeals United States Court of Appeals
    For the First Circuit For the First Circuit
    ____________________

    No. 96-1378

    DOUGLAS T. WIGHTMAN, ET AL.,

    Plaintiffs, Appellants,

    v.

    SPRINGFIELD TERMINAL RAILWAY COMPANY
    AND UNITED TRANSPORTATION UNION,

    Defendants, Appellees.

    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Richard G. Stearns, U.S. District Judge] ___________________

    ____________________

    Before

    Torruella, Chief Judge, ___________
    Bownes, Senior Circuit Judge, ____________________
    and Stahl, Circuit Judge. _____________

    ____________________

    Harold A. Ross with whom Ross & Kraushaar Co., L.P.A., Shelley B. ______________ ____________________________ __________
    Kroll, and Segal, Roitman & Coleman were on brief for appellants. _____ ________________________
    John R. Nadolny for appellee Springfield Terminal Railway Co. and _______________
    Norton N. Newborn with whom Norton N. Newborn Co., L.P.A., James F. __________________ ______________________________ ________
    Freeley, Jr. and Freeley & Freeley were on brief for appellee United ____________ __________________
    Transportation Union.

    ____________________

    November 19, 1996
    ____________________


















    STAHL, Circuit Judge. Appellants, Brotherhood of STAHL, Circuit Judge. _____________

    Locomotive Engineers and several of its individual members

    ("BLE") sought to enjoin enactment of a clause in a newly

    negotiated collective bargaining agreement between Appellees

    United Transportation Union ("UTU") and Springfield Terminal

    Railway Co. ("ST"), as a violation of the Railway Labor Act

    ("RLA"), 45 U.S.C. 151-188. The district court denied the

    injunction and granted summary judgment for UTU and ST on

    BLE's complaint. Wightman v. Springfield Terminal Ry. Co., ________ _____________________________

    915 F. Supp. 503, 507 (D. Mass. 1996). BLE now appeals.

    Background Background __________

    The RLA governs labor and collective bargaining

    arrangements between carriers, or employers, and unions. ST

    is a railroad operator located in Springfield, Massachusetts,

    and a carrier for purposes of the RLA. BLE and UTU are two

    of several trade unions who have collective bargaining

    agreements with ST. The individual plaintiffs in this case

    belong to BLE. The RLA authorizes carriers and unions to

    establish union shops. A union shop in the railroad industry

    simply means that in order to remain employed with a railroad

    company, employees must belong to one of the national, RLA

    recognized railroad unions. See 45 U.S.C. 152, ___

    Eleventh(a) and (c).1 ST and the unions with which it

    ____________________

    1. 45 U.S.C. 152 has been drafted in subsections First
    through Eleventh. Section 152, Eleventh contains subsections
    a through d. We note the unusual numbering scheme to explain

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    maintains collective bargaining agreements have established a

    union shop.

    Employment in the railroad industry revolves around

    crafts or classes of work, each of which is represented by a

    different union. Train service and engineer service

    constitute two such crafts. The former encompasses

    conductors, brakemen, trainmen and yardmen, and the latter

    includes primarily locomotive engineers. UTU represents the

    train service craft and BLE represents the engineer service

    craft.

    By practice, junior engineers advance from the

    ranks of the train service employees. Over the course of any

    given year, however, the amount of engineer work may

    fluctuate. During periods of reduced engineer work, junior

    engineers may have to return temporarily to train service in

    order to remain employed.2 Junior engineers, therefore, have

    an economic interest in maintaining their train service

    seniority.

    Prior to 1995, the UTU-ST collective bargaining

    agreement allowed non-UTU member engineers to continue to

    accrue train service seniority. In 1995, however, UTU

    negotiated a provision known as Article 21, which requires

    ____________________

    our citation.

    2. In its reply brief, BLE appears to hint that the ebb and
    flow of train service employees to and from engineer service
    occurs with less regularity today than in prior eras.

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    that employees moving from train service to engineer service

    pay dues to UTU in order to maintain and continue to accrue

    their train service seniority. When BLE objected to Article

    21, ST offered it a similar provision which BLE rejected,

    apparently believing it to be of little value to its

    membership.

    BLE then challenged Article 21 on RLA grounds. It

    sought preliminary injunctive relief which the district court

    denied. Subsequently, on cross motions, the district court

    granted summary judgment in favor of UTU and ST. This appeal

    followed.

    Standard of Review Standard of Review __________________

    We review the award of summary judgment de novo. __ ____

    Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 11 (1st Cir. 1996). ____________ _____________

    Summary judgment is appropriate in the absence of a genuine

    issue of material fact, when the moving party is entitled to

    judgment as a matter of law. See Fed. R. Civ. P. 56(c). ___

    Neither party may rely on conclusory allegations or

    unsubstantiated denials, but must identify specific facts

    deriving from the pleadings, depositions, answers to

    interrogatories, admissions and affidavits to demonstrate

    either the existence or absence of an issue of fact. See ___

    Fed. R. Civ. P. 56(c) and (e).

    Cross motions for summary judgment neither alter

    the basic Rule 56 standard, nor warrant the grant of summary



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    judgment per se. See Wiley v. American Greetings Corp., 762 ___ __ ___ _____ _________________________

    F.2d 139, 141 (1st Cir. 1985). Cross motions simply require

    us to determine whether either of the parties deserves

    judgment as a matter of law on facts that are not disputed.

    Id. As always, we resolve all factual disputes and any ___

    competing, rational inferences in the light most favorable to

    the party against whom summary judgment has entered. Den ___

    Norske Bank v. First Nat'l Bank of Boston, 75 F.3d 49, 53 ___________ ___________________________

    (1st Cir. 1996).

    Discussion Discussion __________

    BLE raises three basic arguments, each of which

    involves a different statutory provision of the RLA. First,

    BLE contends, Article 21 violates the prohibition of mandated

    dual unionism under 45 U.S.C. 152, Eleventh(c). Second,

    BLE urges, Article 21 impermissibly interferes with

    employees' rights to organize and choose their own collective

    bargaining representative under 45 U.S.C. 152, Third and

    Fourth. Finally, BLE asserts, the RLA, 45 U.S.C. 156,

    required UTU and ST to provide BLE, an interested party,

    notice of their contract negotiations and an opportunity to

    participate in them. We conclude that the district court

    ably analyzed each of BLE's arguments and properly found them

    lacking in substance. We affirm.

    A. 45 U.S.C. 152, Eleventh(c) ________________________________





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    According to BLE, Article 21 violates 45 U.S.C.

    152, Eleventh(c), part of the union shop provisions of the

    RLA. Analysis of BLE's argument requires a brief detour into

    the background of the union shop provisions generally, and

    how 152, Eleventh(c) fits into the union shop scheme.

    Under 45 U.S.C. 152, Eleventh(a), carriers and

    unions may establish union shops. Section 152, Eleventh(a)

    specifically provides that carriers and unions may "make

    agreements, requiring as a condition of continued employment,

    that . . . all employees shall become members of the labor

    organization representing their craft or class." Read in

    isolation, the plain language of this provision would allow

    carriers and unions to require employees to belong not to the

    union of their choice, but to the union certified as the

    representative of their craft or class.

    Organized labor petitioned Congress for the union

    shop option in order to eradicate the problem of "free

    riders," railroad employees who do not pay dues to any union

    but receive whatever benefits collective bargaining confers.

    See generally Pennsylvania R.R. Co. v. Rychlik, 352 U.S. 480, ___ _________ _____________________ _______

    489-94 (1957). In acceding to labor's request, however,

    Congress recognized that the intercraft mobility not uncommon

    in the railroad industry could pose a problem for employees

    in a union shop. Under 152, Eleventh(a), an employee

    shuttling between train service and engineer service could



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    either be forced to change unions or to belong and pay dues

    to two unions until reaching a level of seniority sufficient

    to stabilize him as an engineer. As the Supreme Court

    pointed out, "[t]he former alternative would, of course, be

    expensive and sometimes impossible, while the latter would be

    complicated and might mean the loss of seniority and union

    benefits." Id. at 490. Congress attempted to tailor ___

    union shops to accommodate intercraft mobility through 152,

    Eleventh(c). That subsection provides, "[t]he requirement of

    membership in a labor organization in [a union shop] shall be

    satisfied . . . if said employee shall hold or acquire

    membership in any one of the labor organizations, national in

    scope, organized in accordance with this chapter." 45 U.S.C.

    152, Eleventh(c). On its face, 152 Eleventh(c) appears

    to contradict 152, Eleventh(a) by allowing any employee in

    any union shop to belong to any of the RLA recognized

    railroad unions.

    The purpose of 152, Eleventh(c), however,

    significantly circumscribes its language. See Rychlik, 352 ___ _______

    U.S. at 488, 492; see also Landers v. Nat'l R.R. Passenger ___ ____ _______ ____________________

    Corp., 814 F.2d 41, 44-45 (1st Cir. 1987) (recognizing _____

    limited applicability of 152, Eleventh(c)), aff'd, 485 U.S. _____

    652 (1988). Despite its broad language, "the only purpose of

    Section 2, Eleventh(c) was a very narrow one: to prevent

    compulsory dual unionism or the necessity of changing from



    -7- 7













    one union to another when an employee temporarily changes

    crafts." Landers v. Nat'l R.R. Passenger Corp., 485 U.S. _______ ___________________________

    652, 657-58 (1988); Rychlik, 352 U.S. at 492. Section 152, _______

    Eleventh(c) does not exist to benefit unions by permitting

    them to recruit members from the ranks of other established

    unions, or to provide railroad employees with a general right

    to join unions other than the designated bargaining

    representative of their craft, except to meet the narrow

    problem of intercraft mobility in a union shop. Rychlik, 352 _______

    U.S. at 493.

    Bearing in mind the context and purpose of 152

    Eleventh(c), we turn to BLE's challenge to Article 21. BLE

    essentially attacks Article 21 from two angles. First, BLE

    contends, Article 21 constitutes either a 152, Eleventh(a)

    union shop agreement that violates 152, Eleventh(c) or an

    amendment to the existing ST-UTU agreement that violates

    152, Eleventh(c). Second, BLE argues, Article 21 will upset

    "the cost sharing scheme which was continued and fostered by

    the 1951 union shop amendments." We disagree.

    On its face, Article 21 can neither constitute a

    union shop agreement by itself, nor an amendment to the ST-

    UTU agreement that violates Eleventh(c). Nothing in the

    language of Article 21 requires membership in UTU or any

    other union as a condition of employment. See Brotherhood of ___ ______________

    Locomotive Eng'rs v. Kansas City S. Ry., 26 F.3d 787, 793 _________________ ___________________



    -8- 8













    (8th Cir.) ( 152, Eleventh(c) applies only to a 152,

    Eleventh(a) union shop agreement), cert. denied, 115 S. Ct. _____ ______

    320 (1994); Dempsey v. Atchison, Topeka and Santa Fe Ry. Co., _______ _____________________________________

    16 F.3d 832, 838 (7th Cir.) (same), cert. denied, 115 S. Ct. _____ ______

    82 (1994). Article 21 does not require an engineer to choose

    between dual union membership or unemployment; Article 21

    simply requires an engineer to choose whether to retain and

    continue to accrue seniority in the train service craft.

    Wightman, 915 F. Supp. at 506. ________

    In Dempsey v. Atchison, Topeka and Santa Fe Ry. _______ ___________________________________

    Co., 16 F.3d 832, 838 (7th Cir. 1994), the Seventh Circuit ___

    faced a BLE challenge to a provision requiring engineers

    desirous of accumulating additional train service seniority

    to pay dues to UTU. Failure to pay, however, would not

    affect accrued seniority. In examining whether the provision

    constituted a union shop agreement, the Seventh Circuit

    relied in part on the fact that it did not require payment of

    dues to UTU in order to retain accrued seniority, implying

    that such a provision might constitute a union shop

    provision. Id. at 838 (citing NLRB v. Manitowoc Engineering ___ ____ _____________________

    Co., 909 F.2d 963, 969-71 (7th Cir. 1990), cert. denied, ___ _____ ______

    Clipper City Lodge No. 516 v. NLRB, 498 U.S. 1083 (1991)). ___________________________ ____

    Ultimately, the court concluded that the provision at issue

    did not create any conditions of continued employment, and





    -9- 9













    therefore, did not constitute a 152, Eleventh(a) union shop

    agreement. Id. ___

    In our view, the extra step Article 21 takes with

    respect to accrued seniority does not create any conditions

    on employment different from the provision in Dempsey. As _______

    indicated, nothing on the face of Article 21 requires

    employees to belong to UTU in order to remain employed.

    Despite the fact that Article 21 takes the extra step of

    conditioning seniority retention and accrual on continued

    dues payment, an engineer who chooses BLE over UTU satisfies

    either of the UTU-ST or BLE-ST union shop requirements. To

    the extent, therefore, that Dempsey implies that a provision _______

    such as Article 21 might constitute a union shop agreement or

    amendment, we respectfully disagree.

    BLE, however, asserts that engineers who choose BLE

    over UTU run the risk of unemployment when shuttled back to

    train service, since they will have no train service

    seniority. According to BLE, this effectively forces those

    engineers at the lower end of the engineer seniority list

    either to belong to UTU and BLE, or to UTU instead of BLE, as

    a condition of continued employment at ST. BLE asserts that

    152, Eleventh(c) allows a railroad employee in a union shop

    to change membership to any other RLA recognized union,

    "without putting himself out of compliance with the

    membership requirement of a valid union shop agreement and



    -10- 10













    thereby cause a loss of seniority and employment rights."

    BLE's argument requires us to determine whether 152,

    Eleventh(c), in protecting against compulsory dual unionism,

    elevates seniority into a statutorily protected right

    employees may take with them as they move from craft to craft

    and union to union.

    By its own language, the RLA governs relations

    between carriers, unions and employees, and 152,

    Eleventh(c) dictates the limits of what carriers and/or

    unions can demand of employees in a union shop. Within those

    parameters, which include a prohibition on compulsory dual

    unionism, the RLA makes no mention of seniority, and notably

    fails to designate seniority as a protected employment right.



    In the absence of a legislative pronouncement to

    the contrary, union contracts typically define the scope and

    significance of seniority rights. Aeronautical Indus. Dist. __________________________

    Lodge v. Campbell, 337 U.S. 521, 526 (1949); Trailmobile Co. _____ ________ _______________

    v. Whirls, 331 U.S. 40, 53 n.21 (1947). Seniority, ______

    therefore, does not stem from the employer-employee

    relationship and by extension become an employment right, but

    rather from either a statute or the four corners of a

    collective bargaining agreement, in this case between a union

    and a carrier. National Labor Relations Bd. v. Whiting Milk ____________________________ ____________

    Corp., 342 F.2d 8, 10-11 (1st Cir. 1965). It is by now well _____



    -11- 11













    established that in the absence of a contract creating

    seniority rights, they do not exist. See Dempsey, 16 F.3d at ___ _______

    839; United Food & Commercial Workers Union v. Gold Star ________________________________________ __________

    Sausage Co., 897 F.2d 1022, 1026 (10th Cir. 1990); Cooper v. ____________ ______

    General Motors Corp., 651 F.2d 249, 250 (5th Cir. 1981) _____________________

    (citing cases); Local 1251 Int'l Union of United Auto., ___________________________________________

    Aircraft and Agric. Workers of Am. UAW v. Robertshaw Controls ______________________________________ ___________________

    Co., 405 F.2d 29, 32-33 (2d Cir. 1968) (citing cases) ___

    (overruling prior circuit precedent to the contrary).

    Seniority, like any other benefit deriving

    exclusively from collective bargaining agreements, does not

    vest in employees. Robertshaw, 405 F.2d at 33; McMullans v. __________ _________

    Kansas, Okla. & Gulf Ry., 229 F.2d 50, 53 (10th Cir. 1956). ________________________

    Instead, seniority rights are subject to revision or even

    abrogation with the termination or renegotiation of the

    collective bargaining agreement.3 Dempsey, 16 F.3d at 839; _______

    Robertshaw, 405 F.2d at 33; McMullans, 229 F.2d at 54. Any __________ _________

    rights employees have in seniority, therefore, are tied

    directly to the terms of the labor agreement between the

    carrier and the union representing their craft. Nothing in



    ____________________

    3. The Dempsey opinion ultimately views seniority as we do, _______
    despite that court's implication that a provision such as
    Article 21 might constitute a union shop agreement. See 16 ___
    F.3d at 838-39. Dempsey concludes that seniority, born of _______
    the collective bargaining agreement, is subject to revision
    or abrogation. 16 F.3d at 839. We do not interpret Dempsey, _______
    therefore, as supporting BLE's argument.

    -12- 12













    the RLA changes this fundamental tenet of labor law.4

    Dempsey, 16 F.3d at 840; McMullans, 229 F.2d at 53. _______ _________

    We recognize that Article 21 may make it attractive

    for at least some engineers to choose UTU over BLE. We stop

    short, however, of equating a union's successful negotiation

    of a potential competitive advantage over another union with

    the kind of compulsory dual unionism 152, Eleventh(c)

    exists to prevent. See Whiting Milk, 342 F.2d at 11 ___ _____________

    ("Obtaining a benefit for employees may well encourage others

    to join a union but that side effect does not violate the

    [NLRB], for 'The truth is that the union is a service agency

    that probably encourages membership whenever it does its job

    well.'") (quoting Local 357, Int'l Bhd. of Teamsters v. NLRB, __________________________________________

    365 U.S. 667, 675-76 (1961)). We conclude that 152,

    Eleventh(c) does not provide the statutory basis to vest

    railroad employees with their accrued seniority.

    Finally, BLE asserts that Article 21 "upsets the

    sharing of costs of representation promoted by the 1951

    amendments" in violation of 152, Eleventh(c).


    ____________________

    4. BLE relies on three cases in support of its contention
    that Article 21 constitutes an illegal union shop agreement:
    Felter v. Southern Pac. Co., 359 U.S. 326 (1959), Birkholz v. ___________________________ ___________
    Dirks, 391 F.2d 289 (7th Cir. 1968), vacated as moot, 395 _____ ________________
    U.S. 210 (1969) and O'Connell v. Erie Lackawanna R.R., 391 ___________________________________
    F.2d 156 (2d Cir. 1968), vacated as moot, 395 U.S. 210 _________________
    (1969). BLE asserted these cases unsuccessfully to the
    Seventh Circuit in support of a nearly identical argument.
    See Dempsey, 16 F.3d at 838 n.6. We concur in that court's ___ _______
    conclusion that these cases are inapposite.

    -13- 13













    Section 152, Eleventh(c) limits employees in a

    union shop to membership in those unions which qualify as

    electors of the union representatives on the National

    Railroad Adjustment Board ("NRAB"). The NRAB exists to

    settle disputes arising under collective bargaining

    agreements. See Rychlik, 352 U.S. at 487. As the Seventh ___ _______

    Circuit pointed out, this requirement limits union shop

    participation to those unions which share the costs of

    administering the NRAB, and which "join together in other

    respects in the negotiating and policing of collective

    bargaining agreements under the dispute mechanisms of the

    RLA." Dempsey, 16 F.3d at 840. BLE appears to argue that _______

    Article 21 has the effect of depriving it of dues that would

    offset its obligations to NRAB. See id. Nothing in the RLA, ___ ___

    however, guarantees BLE a particular level of dues to offset

    its obligations to NRAB. Stated more broadly, the RLA does

    not protect any one union from competition with another over

    membership and dues.

    B. 45 U.S.C. 152, Third and Fourth ______________________________________

    Section 152, Third, entitled "Designation of

    representatives," provides that neither unions nor carriers

    "shall in any way interfere with, influence, or coerce the

    other in its choice of representatives." Section 152,

    Fourth, dealing with organization and the collective

    bargaining process, grants employees the right to organize



    -14- 14













    and bargain collectively through representatives of their own

    choosing, and provides that no carrier may influence or

    coerce employees regarding their choice of labor

    organization, nor deduct dues or other fees of such

    organizations from employee wages. BLE contends that Article

    21 violates the employee freedom of choice embodied in Third

    and Fourth, and also the prohibition on wage deductions in

    Fourth. Again, we disagree.

    In TWA, Inc. v. Independent Fed. of Flight __________ _____________________________

    Attendants, 489 U.S. 426, 441 (1989), the Supreme Court noted __________

    that 152, Third and Fourth operate primarily in pre-

    certification contexts, where unorganized employees seek to

    designate representatives and commence collective bargaining

    with employers. The Court reasoned that the RLA contemplates

    dispute resolution through private mechanisms, the success of

    which depends on the independence of the employees' "putative

    representative" and on neither party's access to the courts

    to further their own partisan ends. Id. (quoting Switchmen ___ _________

    v. National Mediation Bd., 320 U.S. 297, 300 (1943)). In a ______________________

    post-certification context, by contrast, the parties already

    have certified representatives and a collective bargaining

    record in place. In post-certification disputes, therefore,

    we must limit our intervention to cases in which the

    aggrieved union has no other remedy "to enforce the statutory

    commands which Congress had written into the [RLA]." Id. ___



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    We have concluded that intervention in a post-

    certification dispute under 152, Third and Fourth will

    occur in extremely limited circumstances. See National R.R. ___ _____________

    Passenger Corp. v. International Ass'n of Machinists and ________________ ________________________________________

    Aerospace Workers, 915 F.2d 43, 51 (1st Cir. 1990). __________________

    Specifically, we will intervene upon demonstration of carrier

    conduct reflecting anti-union animus, an attempt to interfere

    with employee choice of collective bargaining representative,

    discrimination, or coercion. Id. In addition, we will ___

    intervene when a carrier commits acts of intimidation that

    cannot be remedied by administrative means, or commits a

    fundamental attack on the collective bargaining process or

    makes a direct attempt to destroy a union. Id. ___

    BLE purports to establish a genuine issue of

    material fact by listing 15 "facts" which it claims

    demonstrate anti-BLE animus sufficient to justify post-

    certification judicial intervention. We need not recite all

    of them here. We agree with the district court that BLE's

    facts, even if all true, at best demonstrate sharp bargaining

    practices between unions in an effort to gain competitive

    advantage. Wightman, 915 F. Supp. at 507. While BLE's facts ________

    evince competitive jockeying between it and UTU, they notably

    fail to demonstrate anti-BLE animus or a fundamental attack







    -16- 16













    on the bargaining process by ST.5 Accordingly, the District

    Court correctly declined to intervene in this post-

    certification matter.

    BLE also contends that Article 21 violates 152,

    Third and Fourth as a matter of law.6 BLE offers precedent

    under the National Labor Relations Act ("NLRA"), which it

    seeks to apply analogically to this railroad dispute. While

    the NLRA may provide analogies that bear on interpretation of

    the RLA, the Supreme Court has emphasized that "the NLRA

    'cannot be imported wholesale into the railway labor arena.'"

    TWA, 489 U.S. at 439 (quoting Trainmen v. Jacksonville ___ ________ ____________

    Terminal, 394 U.S. 369, 383 (1969)). We especially hesitate ________

    to employ NLRA precedent in light of the clear and

    unequivocal RLA precedent from the Supreme Court, this

    circuit and others, which underscores the limited post-

    certification application of 152, Third and Fourth. See ___

    TWA, 489 U.S. at 441 (limiting application of 152, Third ___

    and Fourth to pre-certification contexts); Nat'l R.R. ___________


    ____________________

    5. To be sure, it does not appear that ST was entirely
    candid with BLE regarding its negotiations with UTU and the
    substance of the ST-UTU agreement. The RLA, however, does
    not compel ST to inform BLE of the substance of negotiations
    with a third union, and we do not identify anti-BLE animus in
    ST's actions.

    6. BLE essentially argues that by making it so attractive
    for engineers to join UTU, Article 21 has the effect of
    impermissibly interfering with their free choice of union,
    and coercing them to join UTU, in violation of 152, Third
    and Fourth.

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    Passenger, 915 F.2d at 51 (same); see also Kansas City S., 26 _________ ___ ____ ______________

    F.3d at 795; Dempsey, 16 F.3d at 841. Finally, BLE argues _______

    somewhat opaquely that a wage deduction provision only passes

    RLA muster if it comprises part of a union shop agreement

    under 152, Eleventh. At the outset we note that Article 21

    by itself does not refer to wage deductions, much less

    mandate them. Assuming such a wage deduction exists,

    however, we disagree with BLE's interpretation of 152,

    Fourth and Eleventh(b).

    As indicated, 152, Fourth provides that carriers

    may not deduct union dues or fees from employee wages.

    Section 152, Eleventh(b), however, provides that carriers and

    labor organizations may make agreements providing for the

    deduction of "any periodic dues, initiation fees, and

    assessments" from employee wages as long as the employee has

    given the carrier written permission. 45 U.S.C. 152,

    Eleventh(b). Section 152, Eleventh(b), unlike Eleventh(c),

    does not limit its applicability to Eleventh(a), or union

    shop agreement situations. See Kansas City S., 26 F.3d. at ___ ______________

    794. Read together, 152, Fourth and Eleventh(b) provide

    that carriers may not unilaterally deduct dues from employee

    wages, but may do so upon the agreement of all parties

    involved. See id. Thus, even in the absence of a union shop ___ ___

    agreement, employees and carriers may agree to a dues

    deduction schedule under 152, Eleventh(b).



    -18- 18













    C. 45 U.S.C. 156, Bargainable Interest _________________________________________

    BLE contends that the District Court erred in not

    setting Article 21 aside on the basis that UTU and ST failed

    to notify BLE of their negotiations, and afford BLE the

    opportunity to participate in them.

    The RLA mandates that "[c]arriers and

    representatives of the employees shall give at least thirty

    days' written notice of an intended change in agreements

    affecting rates of pay, rules, or working conditions" to

    interested parties. 45 U.S.C. 156. BLE identifies itself

    as an interested party, and contends that ST or UTU owed it

    notice. BLE also contends that it has joint jurisdiction

    over collective bargaining between ST and UTU, at least with

    respect to train service seniority, by dint of the routine

    shuttling of employees between the train service and engineer

    service crafts. According to BLE, that joint jurisdiction

    shouldhavegivenitanopportunitytoparticipateinthenegotiations.

    The Eighth Circuit recently faced BLE's argument

    and concluded that neither the carrier nor UTU had any

    statutory obligation to provide BLE with notice or the

    opportunity to participate in negotiations, a conclusion with

    which we substantially agree. See Kansas City S., 26 F.3d at ___ ______________

    792. 45 U.S.C. 156 exists to prevent either a carrier or

    union from unilaterally changing the terms of the operative

    collective bargaining agreement. Order of Railway Conductors ___________________________



    -19- 19













    and Brakemen v. Switchmen's Union of N. Am., 269 F.2d 726, _____________ ____________________________

    733 (5th Cir.), cert. denied, 361 U.S. 899 (1959). Section _____ ______

    156, therefore, furthers the overall purpose of the RLA to

    permit employees to choose their own bargaining

    representative freely, and to ensure a procedure for "the

    commencement of conferences between representatives of the

    two parties if changes are to be made in the contract."

    McMullans, 229 F.2d at 56. Section 156 does not exist to _________

    open collective bargaining negotiations between a carrier and

    a union to any other union claiming an interest.

    BLE relies chiefly on two cases, neither of which

    compel the conclusion BLE seeks. The first, Brotherhood of ______________

    Locomotive Eng'rs v. National Mediation Board, 410 F.2d 1025, __________________ ________________________

    1030 (D.C. Cir.), cert. denied, 396 U.S. 878 (1969), involved _____ ______

    a dispute between BLE and the firemen's union over apprentice

    engineers, a new class of railroad employees. The court

    determined that in the absence of a certified representative

    for the new class, any union that could fairly claim

    representation over the apprentices could legitimately

    bargain with the carrier about the terms and conditions of

    the apprentices' employment. Id. By demonstrating a fair ___

    claim of representation, therefore, a union established a

    right to notice and the opportunity to participate under the

    RLA. Id. This case, by contrast, involves collective ___

    bargaining between a represented class of employees and their



    -20- 20













    carrier. BLE does not assert any claim of representation

    over UTU members, nor could it. Train service employees have

    already certified UTU as their bargaining representative.

    National Mediation Board, therefore, does not support BLE's ________________________

    asserted interest in the negotiations that produced Article

    21.

    BLE also relies on Illinois Cent. R.R. Co. v. _________________________

    Brotherhood of Locomotive Eng'rs, 443 F.2d 136, 138, (7th __________________________________

    Cir. 1971). The dispute in Illinois Central involved a _________________

    tripartite agreement between the carrier, BLE and UTU

    governing the list of train service employees eligible for

    engineer work. UTU filed suit when BLE sought to negotiate

    revisions to the rules governing the list without providing

    UTU notice and an opportunity to participate. The court,

    noting the tripartite agreement, determined that UTU and BLE

    shared joint negotiating interests over the list, and

    therefore, that BLE could not unilaterally negotiate rule

    revisions with the carrier. Id. at 141. ___

    Obviously no formal tripartite agreement exists in

    this case. BLE, however, points to language in Illinois ________

    Central indicating that even in the absence of such an _______

    agreement, the ebb and flow of employees between the two

    crafts would give the firemen an "important economic stake in

    the rules regulating the extra list" which in turn would

    establish a bargainable interest in UTU over rules governing



    -21- 21













    the list. Id. at 141-42. BLE argues that the same ebb and ___

    flow vests it with a bargainable interest in the negotiation

    of train service seniority.

    We disagree with BLE's interpretation of Illinois ________

    Central. First, that case revolved around a list outside of _______

    either UTU's or BLE's collective bargaining agreements with

    the carrier. The rules governing the extra list, moreover,

    placed direct conditions on a fireman's employment -- they

    dictated which of the firemen could also engage in engineer

    work. BLE's assumption of sole negotiating responsibility

    over rules governing the list placed BLE in the position of

    representing firemen even though the firemen had certified

    UTU as their collective bargaining agent.

    In this case, by contrast, UTU does not seek to

    unilaterally govern the ebb and flow itself. UTU, through

    Article 21, has simply negotiated with ST the mechanism

    through which train service employees accrue seniority, as

    part of negotiations over a general collective bargaining

    agreement. BLE and UTU have no tripartite agreement, nor is

    UTU attempting to unilaterally negotiate a set of rules

    governing movement between the two crafts.

    As the Eighth Circuit concluded,

    "[t]he distinctive division of railroad
    employees under the RLA into crafts or
    classes, and the regular movement of
    employees among the crafts that is
    characteristic of the industry, portends
    overlapping 'interests' among bargaining


    -22- 22













    units in the composition of the crafts
    and in their labor agreements. That sort
    of interest, however, does not confer
    upon all unions the right to notice and
    participation in the arbitrations of all
    other unions."

    Kansas City S., 26 F.3d at 791-92. We conclude that the RLA ______________

    does not provide BLE with a bargainable interest in Article

    21 such that ST and UTU owed BLE notice and an opportunity to

    participate in the negotiations.

    Affirmed. Affirmed ________




































    -23- 23






Document Info

Docket Number: 96-1378

Filed Date: 11/19/1996

Precedential Status: Precedential

Modified Date: 9/21/2015

Authorities (24)

Landers v. National Railroad Passenger Corporation , 108 S. Ct. 1440 ( 1988 )

local-1251-international-union-of-united-automobile-aircraft-and , 405 F.2d 29 ( 1968 )

brotherhood-of-locomotive-engineers-hl-smith-gd-mclaughlin-ld-wilson , 26 F.3d 787 ( 1994 )

united-food-commercial-workers-international-union-afl-cio-local-7 , 897 F.2d 1022 ( 1990 )

Order of Railway Conductors and Brakemen and Brotherhood of ... , 269 F.2d 726 ( 1959 )

Colleen A. Wiley, D/B/A Wiley Creations v. American ... , 82 A.L.R. Fed. 1 ( 1985 )

national-labor-relations-board-v-manitowoc-engineering-co-and-clipper , 909 F.2d 963 ( 1990 )

Ortiz-Pinero v. Rivera-Arroyo , 84 F.3d 7 ( 1996 )

Paul G. Landers v. National Railroad Passenger Corporation , 814 F.2d 41 ( 1987 )

Aeronautical Industrial District Lodge 727 v. Campbell , 69 S. Ct. 1287 ( 1949 )

joe-mcmullans-m-r-edwards-and-e-w-pate-v-kansas-oklahoma-and-gulf , 229 F.2d 50 ( 1956 )

W. L. Birkholz v. Elmer L. Dirks, Etc. , 391 F.2d 289 ( 1968 )

john-p-oconnell-r-a-gallo-and-charles-doyle-etc-wayne-w-delaney , 391 F.2d 156 ( 1968 )

illinois-central-railroad-company-a-corporation-and-united-transportation , 443 F.2d 136 ( 1971 )

dennis-t-dempsey-ronald-e-shaver-raymond-e-young-v-atchison-topeka , 16 F.3d 832 ( 1994 )

Robert Cooper v. General Motors Corporation , 651 F.2d 249 ( 1981 )

national-railroad-passenger-corporation-v-international-association-of , 915 F.2d 43 ( 1990 )

Den Norske Bank As v. First Nat'L of Bost , 75 F.3d 49 ( 1996 )

Wightman v. Springfield Terminal Railway Co. , 915 F. Supp. 503 ( 1996 )

Pennsylvania Railroad v. Rychlik , 77 S. Ct. 421 ( 1957 )

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