in Re BNSF Railway Company

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-18-00151-CV
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IN RE BNSF RAILWAY COMPANY
Original Proceeding
284th District Court of Montgomery County, Texas
Trial Cause No. 17-06-07457
MEMORANDUM OPINION
In this mandamus proceeding, BNSF Railway Company (BNSF) contends the
trial court clearly abused its discretion by signing a protective order that is preempted
by the Railway Labor Act and creates an unconstitutional prior restraint of speech.
We deny the petition.
Background and Procedure in the Trial Court
John Austin Hill (Hill) is a railroad worker who alleges that he was injured
while employed by BNSF. Hill filed an Original Petition against BNSF and another
named defendant, wherein he alleged “FELA Negligence and Strict Liability” claims
to recover for his alleged personal injuries. BNSF filed an answer to the claims,
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asserting special exceptions, a general denial, and affirmative defenses. Hill later
filed a Motion for Protective Order and for Sanctions against BNSF, alleging that he
needed a protective order “to stop BNSF’s unethical and illegal ex parte
communications directly with him . . . in direct contravention of BNSF’s written
agreement not to, and in direct contravention of Texas Disciplinary Rule 4.02(a) and
the Texas discovery rules.”1 Hill alleged that a BNSF medical department employee
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Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct is
titled “Communication with One Represented by Counsel,” and provides:
In representing a client, a lawyer shall not communicate or
cause or encourage another to communicate about the
subject of the representation with a person, organization or
entity of government the lawyer knows to be represented
by another lawyer regarding that subject, unless the lawyer
has the consent of the other lawyer or is authorized by law
to do so.
Tex. Disciplinary Rules of Prof’l Conduct R. 4.02(a) (“Texas Rule 4.02”), reprinted
in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2013) (Tex. State Bar R. art.
X, § 9.
Comments to rule 4.02 emphasize that the rule is directed at efforts to
“circumvent the lawyer-client relationship” existing between other persons,
organizations or entities and their respective counsel. As such, the rule prohibits
communications that “in form are between a lawyer's client and another person,
organization or entity [] represented by counsel where, because of the lawyer's
involvement in devising and controlling their content, such communication in
substance [is] between the lawyer and the represented person . . .” Nevertheless, it
does not prohibit communication between a lawyer's client and persons,
organizations, or entities represented by counsel, “as long as the lawyer does not
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had direct communications with Hill and that such communication violated Texas
discovery rules and represented a breach of opposing counsel’s ethical
responsibilities. Hill also complained that the communications occurred after his
counsel notified BNSF in writing not to contact Hill, and argued BNSF’s conduct
justified imposition of sanctions and a protective order from abusive discovery under
Texas Rule of Civil Procedure 192.6.
BNSF filed a written response to the Motion for Protective Order and argued
that such communications by the Medical and Environmental Health Department
did not violate the rules of discovery or of professional conduct, were expressly
allowed by and required by the applicable collective bargaining agreement (CBA),
were of the same nature as their pre-suit communications, and were entirely work
related.
BNSF also argued that Hill is a BNSF employee subject to and receiving
medical management to process insurance claims and vocational rehabilitation
services through a CBA. BNSF supported its response with an affidavit from the
medical department employee, who explained that the CBA required BNSF to
perform a return-to-work assessment and provide additional training if necessary,
cause or encourage the communication without the consent of the lawyer for the
other party.”
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and it required Hill to communicate with BNSF regarding his medical status.
Additionally, BNSF argued that no rule of professional conduct had been violated
by routine communications between a BNSF medical department employee to an
injured employee to provide assistance with an employee benefit. BNSF maintained
that communications with an FELA Plaintiff about matters of employment that are
governed by a CBA constitute “minor disputes” that must be resolved under the
Railway Labor Act dispute resolution procedure.
The trial court entered an Order granting the protective order but the trial court
did not fund that BNSF had violated any discovery rules or rules of professional
responsibility and did not sanction BNSF. The trial court’s Order provides that
BNSF is prohibited from having any ex parte communications with Hill during the
course of the lawsuit “concerning any issues the subject of the lawsuit.”
On March 21, 2018, BNSF filed a motion for reconsideration or modification
of the protective order. In the motion for reconsideration, BNSF complained for the
first time that the protective order is overly broad and acts as a prior restraint on
commercial speech, was not narrowly tailored to reflect the least restrictive means
to protect the harm asserted by Hill, improperly includes any direct communication
between Hill and any BNSF employee about when and in what capacity Hill can
work, and precludes both Hill and BNSF from complying with the CBA or obtaining
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work for Hill. For the first time, BNSF also attached a copy of the CBA agreement.
The trial court has not ruled on the motion for reconsideration.
On March 29, 2018, Hill filed a motion for sanctions in which he argued that
BNSF violated the protective order by sending a letter concerning vocational
rehabilitation services directly to Hill after the protective order was entered. The trial
court has not ruled on the motion for sanctions.
Mandamus Arguments
In its mandamus petition, BNSF initially argues the protective order is an
impermissible prior restraint on protected speech. In the trial court, arguments
regarding the First Amendment and prior restraint were first raised in BNSF’s
motion for reconsideration. We expressly decline to address these arguments
because the trial court has not yet ruled upon the Motion for Reconsideration or
Modification. See In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig. proceeding)
(“A party’s right to mandamus relief generally requires a predicate request for some
action and a refusal of that request.”). The record now before us indicates that on
May 8, 2018, BNSF objected to the lack of a ruling but there is no complaint before
us that the trial court has unreasonably delayed ruling on the motion for
reconsideration.
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Next, BNSF argues the dispute over BNSF’s direct communications with Hill
constitutes a “minor dispute” under the RLA and therefore the protective order is
preempted by federal law, which grants the National Railroad Adjustment Board
exclusive jurisdiction over all disputes between a railway and a railway employee
regarding matters governed by a CBA. See 45 U.S.C. § 153(i) (“The disputes
between an employee or group of employees and a carrier or carriers growing out of
grievances or out of the interpretation or application of agreements concerning rates
of pay, rules, or working conditions, . . . shall be handled in the usual manner up to
and including the chief operating officer of the carrier designated to handle such
disputes; but, failing to reach an adjustment in this manner, the disputes may be
referred by petition of the parties or by either party to the appropriate division of the
Adjustment Board with a full statement of the facts and all supporting data bearing
upon the disputes.”). Furthermore, BNSF argues the protective order is void because
it exceeds the trial court’s jurisdiction by encroaching on a subject that is preempted
by the RLA. See In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (mandamus
relief is available if a trial court issues an order beyond its jurisdiction). Furthermore,
if the order is void and beyond the trial court’s jurisdiction, the relator need not show
it did not have an adequate remedy by appeal. Id.
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Analysis
In its Mandamus Petition, BNSF refers this Court to several sections of the
CBA. One section referenced by BNSF requires that an injured employee furnish his
supervisor with a doctor’s recommendation indicating that he is able to return to
service or that he be allowed to remain off duty for an approximate period of time.
Another section of the CBA provides a procedure for terminating an employee for
being absent without authority, and BNSF must send a notice to the employee’s last
address. BNSF argues that the protective order actively impedes the procedures in
the CBA. For instance, BNSF argues, the protective order appears to preclude BNSF
from accepting a doctor’s recommendation from Hill unless it is willing to pay a
lawyer to participate in the communication. BNSF also complains that the protective
order precludes it from conducting a disciplinary hearing without attendance by
lawyers for Hill and BNSF.
We agree that BNSF’s examples hypothetically demonstrate that the
protective order may possibly alter the ordinary communication and exchange of
information between the employer and the employee under the CBA. However,
BNSF has not shown that the protective order is void, or that it will interfere with
the CBA. There is no active disciplinary proceeding or termination. BNSF has not
established why if such were to arise, BNSF could not ask the trial court to modify
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the protective order to allow it to proceed in the manner set forth in the CBA. Indeed,
there is a pending motion to modify that the trial court has not yet ruled upon.
Furthermore, BNSF does not explain why the required communications under the
CBA could not be addressed to Hill in care of Hill’s lawyer’s office.
To obtain mandamus relief, BNSF “must establish that an underlying order is
void or a clear abuse of discretion and that no adequate appellate remedy exists.” In
re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding).
An abuse of discretion occurs when a trial court’s ruling is arbitrary and
unreasonable or is made without regard for guiding legal principles or supporting
evidence. Id. “The adequacy of an appellate remedy must be determined by
balancing the benefits of mandamus review against the detriments.” In re Team
Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). After examining
and considering the mandamus petition and appendix, the mandamus record, the
response and appendix, the CBA, and the applicable law, we conclude that BNSF
has not established that it is entitled to mandamus relief. Accordingly, the petition
for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).
PETITION DENIED.
PER CURIAM
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Submitted on April 30, 2018
Opinion Delivered June 14, 2018
Before McKeithen, C.J., Kreger and Johnson, JJ.
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