BLET v. Union Pacific Railroad

Case: 21-50544 Document: 00516278707 Page: 1 Date Filed: 04/13/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 13, 2022
No. 21-50544 Lyle W. Cayce
Clerk
Brotherhood of Locomotive Engineers and Trainmen,
Plaintiff—Appellee,
versus
Union Pacific Railroad Company,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas, El Paso
USDC No. 3:21-CV-122
Before Dennis, Higginson, and Costa, Circuit Judges.
Gregg Costa, Circuit Judge:
The Railway Labor Act divests federal courts of jurisdiction over
minor disputes between rail carriers and their employees. Most claims
challenging employee discipline qualify as minor disputes that must be routed
through arbitration. But there are exceptions. One is that the Act gives
federal courts the authority to remedy carrier conduct motivated by
antiunion animus. The district court found that this was such a case,
preliminarily enjoining the railroad’s suspension of six union members—
including all five actively-employed officers of the union’s local division—
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over a fistfight at an offsite union meeting. Our primary question is whether
the animus exception gave the district court jurisdiction to intervene.
I
Union Pacific is a national rail carrier operating in the western half of
the United States. The Brotherhood of Locomotive Engineers and Trainmen
is a labor union representing over 5,000 Union Pacific engineers. The union
is made up of a number of local units or “divisions.” Each provides
representation to union members in its area. Elected representatives from
each division also serve on general committees, which together negotiate
collective bargaining agreements (CBAs) with carriers like Union Pacific.
Division 192 is the exclusive representative for Union Pacific
employees in and around El Paso. During early 2021, tension arose within
the division over the union’s stance on “shoves.” Engineers take shoves
when they accept extra shifts at the request of the railroad. The CBA does
not prohibit shoves, but the union views them as a safety risk and has asked
its members to decline them. Not all of the division’s members complied.
One engineer in particular, David Cisneros, continued taking shoves. Two
Division 192 officers—Local Chairman Peter Shepard and Vice Local
Chairman Joe Reyes—confronted Cisneros about his behavior via text
message and the division’s Facebook page.
Mounting tensions ultimately erupted into an off-duty fist fight before
a union meeting. Details about the fight are disputed but the record largely
establishes the following. 1
1
As the district court explained, the particulars of the fight are not material. The
union’s RLA claim turns on undisputed facts about Union Pacific’s response to the fight.
2
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On March 9, 2021, Division 192 held a routine union meeting at a local
restaurant. Cisneros arrived at the restaurant a half hour before the start
time. A number of the division’s officers, including Shepard and Reyes, had
already arrived and were chatting in the parking lot. Cisneros approached
Reyes and struck him repeatedly until he fell to the ground. Shepard and
other division members attempted to separate the parties and a shouting
match ensued. In the tumult, Cisneros crossed back over to Reyes, who had
just risen to his feet, and punched him until he collapsed again. The two were
finally separated and the union meeting took place without Cisneros or
Reyes.
Almost two months later, on May 5, Cisneros filed a complaint with
Union Pacific, alleging that he had been threatened and physically assaulted
by Shepard and Reyes in retaliation for taking extra shifts. A company
supervisor met with Cisneros about the incident and took statements from
only two other employees: Jason Barnett and Mark Fraire. Barnett wrote that
he had witnessed part of the altercation at the union meeting and helped to
diffuse the situation. Fraire was not present for the fight but said that he also
took shoves and had been subject to similar harassment by Reyes.
About a week later, Union Pacific indefinitely suspended Shepard and
Reyes without pay. It also suspended three other officers of Division 192 and
one more union member. Cisneros’s initial report to Union Pacific did not
allege that those four were directly involved in the fight, and it appears they
were simply bystanders. Union Pacific did not take statements from any of
the suspended union members before disciplining them.
Notices of Investigations issued to all six individuals, telling them that
they would be subject to disciplinary proceedings that could result in
termination. Shepard and Reyes were charged with violating two Union
Pacific policies: Item 10-I (forbidding “Violence & Abusive Behavior in the
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Workplace”) and Rule 1.6 (forbidding “Discourteous,” “Immoral,” and
“Quarrelsome” behavior). The bystanders were charged with violating Rule
1.6—in their case, for “fail[ing] to take any action” to stop the fight or
“report the incident” to management.
Cisneros was not suspended or issued a notice, even though it is Union
Pacific’s policy to discipline every participant in a physical altercation. Union
Pacific also declined to discipline Barnett, who gave a statement in support
of Cisneros’s claim, although he had not made any earlier efforts to report
the incident.
The suspension of six union members—five of whom held office—
effectively barred all of Division 192’s leadership from Union Pacific’s
premises. 2 The suspended officers later testified that this damaged Division
192 because they could not perform most duties remotely.
Within days of the suspensions, the union sued Union Pacific in
federal court. It alleged that Union Pacific was retaliating against the union
for its shove policy by debilitating the union officers who sought to enforce
it. This retaliation, the union argued, violated the section of the Railway
Labor Act (RLA) that prohibits carrier interference with union activity. The
union sought injunctive relief requiring Union Pacific to end its investigation
of the suspended employees and ordering their return to work. Union Pacific
responded with a motion to dismiss for lack of subject matter jurisdiction,
arguing that the dispute needed to be arbitrated.
The district court held a preliminary injunction hearing. The union
introduced the testimony of two suspended union members and the General
Chairman of its western territory, as well as a number of documents. Union
2
The only remaining union officer, Steve Seale, was on medical leave at the time.
4
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Pacific offered, among other things, the testimony of Cisneros and two Union
Pacific supervisors involved in the disciplinary action. The day after the
hearing, the court granted a preliminary injunction, finding a “strong
likelihood” the union would prevail in showing that Union Pacific violated
the RLA.
Union Pacific immediately appealed the injunction and unsuccessfully
sought a stay in this court.
Meanwhile, the district court denied Union Pacific’s motion to
dismiss for lack of jurisdiction. It acknowledged that the RLA precludes
federal jurisdiction over minor disputes between carriers and their
employees. But it concluded that Union Pacific had used its disciplinary
proceedings “as pretext for undermining” the union. The case thus
presented, in the court’s view, an “exceptional circumstance” of antiunion
animus in which federal court jurisdiction exists.
II
The first question is whether the district court had jurisdiction. See
Jefferson Cmty. Health Care Ctrs., Inc. v. Jefferson Par. Gov’t, 849 F.3d 615,
621 (5th Cir. 2017) (addressing jurisdiction in appeal of preliminary
injunction).
Congress enacted the RLA to minimize disruptions to railway service
caused by labor disputes. See Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246,
252 (1994). The Act establishes distinct procedures for resolving “major”
and “minor” disputes between carriers and their employees. Id. at 252–53.
“Major disputes,” which relate to the collective bargaining process, give rise
to federal court jurisdiction. See Conrail v. Railway Labor Executives’
Association, 491 U.S. 299, 302–03 (1989); see also Elgin, J. & E. Ry. Co. v.
Burley, 325 U.S. 711, 723 (1945) (describing major disputes as ones that
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“relate[] to disputes over the formation of collective agreements or efforts to
secure them”). On the other hand, most “minor disputes” or grievances
must be arbitrated before administrative bodies called Adjustment Boards.
Conrail, 491 U.S. at 303–04. Minor disputes typically involve “the
interpretation or application of agreements concerning rates of pay, rules, or
working conditions.” Conrail, 491 U.S. at 303. The “distinguishing feature”
of a minor dispute is that it “may be conclusively resolved by interpreting the
existing agreement.” Id. at 305.
Not all disputes that might be governed by an existing CBA require
arbitration. Federal courts sometimes have a role, such as when carriers act
out of “anti-union animus.” Association of Professional Flight Attendants v.
Am. Airlines, Inc., 843 F.2d 209, 211 (5th Cir. 1988); Douglas Hall et al., The
Railway Labor Act, § 5.III.A (4th ed. 2016) (explaining that, once a
CBA is in place, “courts exercise jurisdiction principally to address claims
that carrier actions reflect antiunion animus or undermine the effective
functioning of the union or cannot be adequately remedied by administrative
means”). The animus exception encompasses direct attacks on the union, as
well as more clandestine attempts to punish employees for their union
associations. See, e.g., Air Line Pilots Association, International v.
Transamerica Airlines, Inc., 817 F.2d 510, 515–17 (9th Cir. 1987) (carrier’s
diversion of business to a newly established non-union subsidiary); Railway
Labor Executives’ Association v. Bos. & Me. Corp., 808 F.2d 150, 157–58 (1st
Cir. 1986) (discriminatory treatment of every employee who chose to strike);
Conrad v. Delta Air Lines, Inc., 494 F.2d 914, 918 (7th Cir. 1974) (retaliatory
discharge of a single employee).
The animus exception is rooted in Section 2 of the RLA, which
provides that no carrier “shall in any way interfere with, influence, or
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coerce” the employees in their “choice of representatives.” 3 45 U.S.C.
§ 152. That requirement and similar provisions of the RLA are judicially
enforceable because noninterference with employees’ chosen representation
is a statutory right crucial to the Act’s functioning. Virginian Ry. Co. v.
System Federation, 300 U.S. 515, 545–46 (1937); Tex. & N. O. R. Co. v.
Brotherhood of Railway & Steamship Clerks, 281 U.S. 548, 569 (1930).
We first addressed the animus exception sixty years ago. See
Brotherhood of Railroad Trainmen v. Cent. of Ga. Ry. Co (“Central of
Georgia”), 305 F.2d 605 (5th Cir. 1962). A railroad had started disciplinary
proceedings against an employee who was a local union representative,
alleging that his efforts to encourage other employees to pursue workers’
compensation claims constituted “gross disloyalty.” Id. at 606. The union
sought a federal court injunction, claiming the railroad was (1) violating the
employee’s contractual rights by disciplining him for conduct that was not
prohibited by the CBA and (2) interfering with the union by using a baseless
charge as pretext to terminate the employee “and thereby to disqualify him
as a representative.” Id. at 606–07. We explained that the district court
lacked jurisdiction over the first claim because it could be resolved by
interpreting the employee’s “personal rights” under the CBA and was thus
a minor dispute. Id. at 607. In contrast, federal court jurisdiction existed over
the claim that the railroad was “frustrat[ing] and undermin[ing] the
effectiveness of [the] bargaining agent by securing his discharge for
unfounded, false or baseless charges.” Id. at 608–09. If it was true that the
railroad had used its “disciplinary proceedings as a guise for . . . undermining
the effectiveness of the Brotherhood,” then the railroad had “obviously”
3
Applying the animus exception, courts look to the third subpart of Section 2 (cited
above), as well as the fourth subpart, which protect employees’ right to organize and
operate their union free from carrier interference. See 45 U.S.C. § 152.
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violated Section 2, Third, of the RLA. Id. at 609. In that case, a federal court
injunction would be “appropriate if not compelled.” Id.; see also Steele v.
Louisville & N. R. Co., 323 U.S. 192, 207 (1944) (finding injunctive relief
appropriate to remedy conduct that undermined the RLA’s bargaining
scheme).
Central of Georgia looks a lot like this case. The suspended employees
are elected officers of their local union division, who were disciplined after
attempting to persuade their peers to adopt a pro-union position in a policy
dispute. The employees are charged with violating vague provisions of the
carrier’s code of conduct. And once again the union alleges that the charges
are pretext for a plot to inhibit the employees’ ability to act as union
representatives and thereby weaken the union.
Despite the similarities, Union Pacific argues that Central of Georgia is
not controlling because its holding was diluted, if not entirely gutted, by
Trans World Airlines, Inc. v. Independent Federation of Flight Attendants, 489
U.S. 426 (1989) (“TWA”). TWA clarifies that Section 2, Fourth, of the RLA
addresses “primarily the precertification rights and freedoms of unorganized
employees” and is not usually grounds for judicial intervention once the
union has been certified. Id. Union Pacific reads this as meaning Central of
Georgia no longer applies to animus claims raised by certified unions.
Union Pacific overstates the impact of TWA on Central of Georgia and
its kin. Soon after TWA issued, we reiterated that “actions taken by a carrier
for the purpose of weakening or destroying the union” remain a “special
circumstance[] in which federal courts may assert jurisdiction over cases that
would otherwise involve minor disputes.” Brotherhood of Railway. Carmen v.
Atchison, T. & S. F. R. Co., 894 F.2d 1463, 1468 n.10 (5th Cir. 1990) (citing
Central of Georgia, 305 F.2d at 608–09). In line with that reaffirmation,
district courts in this circuit continue to apply Central of Georgia. See
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CareFlite v. Office and Professional Employees. International Union, 766 F.
Supp. 2d 773, 778–79 (N.D. Tex. 2011); PHI, Inc. v. Office & Professional
Employees Internationl Union, 2007 U.S. Dist. LEXIS 85085, at *21–27 (W.D.
La. Nov. 16, 2007). Other circuits to address the animus exception since
TWA have recognized its vitality. 4 See Stewart v. Spirit Airlines, Inc., 503 F.
App’x 814, 819 (11th Cir. 2013); United Transportation Union v. AMTRAK,
588 F.3d 805, 813 (2d Cir. 2009); Wightman v. Springfield Terminal Ry., 100
F.3d 228, 234 (1st Cir. 1996); Fennessy v. Sw. Airlines, 91 F.3d 1359, 1362–63
(9th Cir. 1996); Brotherhood of Locomotive Engineers v. Kan. City S. Ry., 26
F.3d 787, 795 (8th Cir. 1994); Davies v. Am. Airlines, Inc., 971 F.2d 463, 468
(10th Cir. 1992); but see IBT v. UPS Co., 447 F.3d 491, 502 (6th Cir. 2006)
(acknowledging other circuits’ adoption of the animus exception but
reserving the issue for a future case). The treatise focused on the RLA also
recognizes that courts can exercise jurisdiction over a disciplinary proceeding
that “raises issues that can be resolved by interpretation of a [CBA]” if “the
plaintiff can demonstrate antiunion animus or antiunion discrimination.”
4
In the immediate aftermath of TWA, one circuit opinion suggested that the
Supreme Court decision might affect the animus doctrine. Central of Georgia’s author,
Judge Brown, wrote an opinion as a visiting judge on the First Circuit, wondering whether
his earlier ruling gave “sufficient deference” to the RLA’s preference for arbitration in the
postcertification context. Nat’l R. Passenger Corp. v. International Association of Machinists
& Aerospace Workers, 915 F.2d 43, 53 n.15 (1st Cir. 1990). But Judge Brown’s reservations
did not gain traction in the courts. As mentioned above, courts (including the First Circuit)
and commentators continue to recognize that the animus exception applies to
postcertification disputes. See, e.g., Wightman v. Springfield Terminal Ry., 100 F.3d 228,
234 (1st Cir. 1996) (“[W]e will intervene [in postcertification disputes] upon
demonstration of carrier conduct reflecting anti-union animus, an attempt to interfere with
employee choice of collective bargaining representative, discrimination, or coercion.”).
Indeed, the Second Circuit has persuasively explained that TWA is consistent with the
well-recognized principle that antiunion animus is one of the few circumstances in which
“a postcertification suit may be brought in federal court.” See United Transportation Union
v. AMTRAK, 588 F.3d 805, 813 (2d Cir. 2009).
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Hall et al., supra, at § 5.III.D.4; see also ALI-ABA Continuing Legal
Education, Judicial Enforcement of the Railway Labor Act, SS051 ALI-ABA
483, 501 (2011) (“Courts have jurisdiction over adequately pleaded coercion
claims and may grant injunctive relief, notwithstanding the existence of a
minor dispute, if such claims are borne out by the facts.”).
It makes sense that no court has read TWA as overriding the animus
exception. A Supreme Court decision overrules circuit precedent only when
it does so “unequivocal[ly].” United States v. Alcantar, 733 F.3d 143, 146 (5th
Cir. 2013). TWA did not involve any claim that a carrier had hidden an
attempt to weaken a union behind a facially minor dispute. The TWA parties
had just concluded a very public battle over the terms of their new CBA. See
489 U.S. at 429. They had already exhausted the administrative procedures
mandated by the RLA and, at that the stage, the Court held only that the Act
did not prohibit the carrier’s adoption of self-help measures, which were not
“inherently destructive” of union activity or the framework of the RLA. See
id. at 442. TWA did not address a situation in which there was
“discrimination or coercion against the representative,” which can result in
a breakdown of the “essential framework for bargaining.” See Association of
Professional Flight Attendants, 843 F.2d at 211. Nor was it interpreting Section
2, Third, of the RLA—the provision we applied in recognizing the animus
exception. See Central of Georgia, 305 F.2d at 608.
Animus claims like the one at bar may be litigated in federal court
because they cannot “be conclusively resolved” by interpreting or applying
a CBA. See Conrail, 491 U.S. at 305; Andrews, 406 U.S. at 324 (qualifying an
employee’s wrongful discharge claim as a minor dispute because it
“stem[med] from differing interpretations of the collective-bargaining
agreement”). Unlike an employee’s “personal” claim challenging
discipline, which can be fully resolved by interpreting and applying the CBA
and thus must be arbitrated, see Central of Georgia, 305 F.2d at 607–08, the
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animus claim is a statutory right neither created nor defined by the parties’
contract. The question to be answered in this case, for example, is whether
the railroad interfered with the employees’ choice of representation. 45
U.S.C. § 152. That is a statutory question, not a contractual one. The
Supreme Court has long recognized that “but for the general jurisdiction of
the federal courts there would be no remedy to enforce the statutory
commands which Congress has written into the Railway Labor Act.”
Switchmen’s Union of N. Am. v. Nat’l Mediation Bd., 320 U.S. 297, 300 (1943).
It has confirmed that principle since TWA, explaining that “the RLA’s
mechanism for resolving minor disputes does not pre-empt causes of action
to enforce rights that are independent of the CBA.” Hawaiian Airlines, 512
U.S. at 256; see also Fennessy, 91 F.3d at 1362 (finding judicial enforcement of
animus claims to be consistent with Hawaiian Airlines). 5
Union Pacific also argues that “[a] preliminary injunction may be
issued in a case involving a minor dispute only in exceptional
circumstances.” See Allied Pilots Association v. Am. Airlines, Inc., 898 F.2d
462, 465 (5th Cir. 1990) (instructing that injunctions should only be granted
in minor disputes “where necessary to preserve the jurisdiction of the
grievance procedure, or where a disruption of the status quo would result in
irreparable injury . . .” (quoting IBT, Local 19 v. Sw. Airlines Co., 875 F.2d
1129, 1136 (5th Cir. 1989)). But this is just another way of framing the RLA’s
general prohibition against judicial intervention in minor disputes. We have
5
In cases declining to apply the animus exception, the proper interpretation of a
CBA term was “[t]he crux of the dispute.” See, e.g., Am. Airlines, 843 F.2d at 212(qualifying a dispute over a carrier’s refusal to let employees wear a controversial button as
minor because it turned on the meaning of the dress code in the CBA); Brotherhood of
Railway Carmen, 894 F.2d at 1467 (affirming dismissal of a claim about a carrier's voluntary
resignation program because it “turn[ed] on interpretation of the contractual agreements
between the parties”).
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explained that antiunion animus is one of the “exceptional circumstances”
that warrants federal jurisdiction. Brotherhood of Railway Carmen, 894 F.2d
at 1468 n.10. Indeed, the district court deemed Union Pacific’s selective
discipline suspending five division leaders an “exceptional circumstance”
warranting court intervention. And, once a court has jurisdiction to
intervene in a dispute governed by the RLA, there is no heightened standard
for injunctive relief. See Conrail, 491 U.S. at 302–03 (explaining that
violations of the statutory requirements of the RLA may be enjoined
“without the customary showing of irreparable injury”). 6
Federal courts thus have jurisdiction over postcertification disputes
alleging that railroad conduct motivated by antiunion animus is interfering
with the employees’ “choice of representatives.” 7 See 45 U.S.C. § 152;
Central of Georgia, 305 F.2d at 608–09.
6
Union Pacific also maintains that the Norris-LaGuardia Act (NLGA) prohibits
courts from granting injunctions in labor disputes without first finding the enjoined action
would cause “substantial and irreparable injury” to the moving party. 29 U.S.C. § 107(b).
But the NLGA “expresses a basic policy against the injunction of activities of labor
unions. . . . [It] does not deprive the federal courts of jurisdiction to enjoin compliance with
various mandates of the Railway Labor Act.” Chi. & N. W. Ry. Co. v. United Transportation
Union, 402 U.S. 570, 581 (1971). To accommodate the “competing demands” between
these statutes, the Supreme Court and this court have repeatedly held that courts enforcing
the RLA are not required to follow the NLGA’s procedures. See, e.g., Burlington N. R.R.
Co. v. Brotherhood of Maintenance of Way Employes, 481 U.S. 429, 445 (1987); BNSF Ry. Co.
v. SMART, 973 F.3d 326, 338 (5th Cir. 2020).
7
Of course, jurisdiction does not depend on the claim being successful. A plaintiff
need only allege a “colorable” claim over which there is federal jurisdiction to allow a
federal court to decide the dispute. Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006); see
OJSC Ukrnafta v. Carpatsky Petrol. Corp., 957 F.3d 487, 496 (5th Cir. 2020) (“[T]he
plaintiff need not, and often will not, succeed on the federal claim for a federal court to be
able to decide it.”); see also Central of Georgia, 305 F.2d at 609 (recognizing that federal
district court had jurisdiction over animus claim and remanding so it could consider
whether union proved that claim).
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III
That leaves the factbound question of whether Union Pacific engaged
in that unlawful interference when it suspended the five union officers. We
review the grant of a preliminary injunction for abuse of discretion. See
Basinkeeper v. U.S. Army Corps of Eng’rs, 894 F.3d 692, 696 (5th Cir. 2018).
Factual findings that support the injunction are reviewed for clear error while
legal rulings are reviewed de novo. See id. Deference is especially warranted
on the question of antiunion animus. See Independent Union of Flight
Attendants v. Pan Am. World Airways, Inc., 789 F.2d 139, 143 (2d Cir. 1986)
(noting reluctance “to overturn district court findings as to motive or intent”
in this area).
Although the district court found all elements of a traditional
preliminary injunction satisfied, Union Pacific focuses only on whether the
union showed a substantial likelihood of success on its interference claim.
And most of its challenge to substantial likelihood of success is rooted in the
jurisdictional argument we have already addressed. Beyond the jurisdictional
issue, the propriety of the injunction largely boils down to a factual dispute:
Did the district court abuse its discretion in concluding that the disciplining
of six union members, including five officers, likely was pretext for the
railroad’s efforts to “interfere with, influence, or coerce” employees in their
choice of representatives. 45 U.S.C. § 152 (Third).
We see no abuse of discretion. The district court concluded that the
union was likely to succeed in showing that the discipline was “motivated by
a desire to weaken the local division.” The following facts amply support
that determination: (1) Union Pacific indefinitely suspended all of Division
192’s active-duty leadership because of a dispute they had with an employee
who favored the company’s position in a policy dispute; (2) Union Pacific
premised the discipline on a fight that occurred off-duty and outside the
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workplace, even though four of the suspended union officials did not
participate in the fight; (3) the pro-company employee who started the fight
was not disciplined, despite the company’s policy of disciplining all
participants in a physical altercation; and (4) Union Pacific took a statement
from the pro-company employee but did not take a statement from the union
officials before suspending them. Indeed, the railroad’s suspension of
effectively all of Division 192’s elected leadership presents a much stronger
case of interference with the employees’ choice of representatives than the
case recognizing such a claim. Contrast Central of Georgia, 305 F.2d at 609(recognizing that pretextual disciplining of even one employee can state an
interference claim); see also Conrad, 494 F.2d at 918 (“Anti-union motivation
invalidates even a discharge which could be justified on independent
grounds.”).
Unable to dispute most of these facts, Union Pacific argues that an
interference claim needs to undermine the entire union, not just a local unit
like Division 192. No authority supports that view. Before and after TWA,
courts exercised jurisdiction over interference claims involving disciplinary
actions that targeted an individual union representative or a particular union
branch. See, e.g., Central of Georgia, 305 F.2d at 606; Conrad, 494 F.2d at
918; Fennessy, 91 F.3d at 1363. Nor does the RLA’s text create a
national/local distinction. It says that carriers shall not “seek in any
manner” to interfere with employees’ “choice of representatives”; there is
no mention of particular offices or duties those representatives must have.
45 U.S.C. § 152(3).
The district court did not abuse its discretion in concluding that the
union is likely to prevail in showing that Union Pacific’s suspension of
effectively all the division’s elected representatives amounted to the
interference the RLA prohibits.
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***
We AFFIRM the injunction.
15