Wightman v. Springfield TerminalWightman v. Springfield Terminal
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.
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
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 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.
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
Cross motions for summary judgment neither alter the basic Rule 56 standard, nor warrant the grant of summary 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).
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
A. 45 U.S.C. 152, Eleventh(c)
According to BLE, Article 21 violates
Under
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
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
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
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
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
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
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
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).
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
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.
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
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. Passenger, 915 F.2d at 51;
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.
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.
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.
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
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
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
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.
STAHL
Circuit Judge