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BROTHERHOOD OF MAINTENANCE OF WAY EMPLES. v. ATCHI

December 1, 1993

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, Plaintiff & Counter-Defendant,
v.
ATCHISON, TOPEKA & SANTA FE RY. CO., et al., and THE ALABAMA GREAT SOUTHERN RAILROAD CO., et al., Defendants & Counterclaimant's and Defendant & Counterclaimant Intervenors.


Plunkett


The opinion of the court was delivered by: PAUL E. PLUNKETT

Over two years have passed since Congress intervened to halt a national rail strike by passing legislation that it believed provided for the settlement of disputes between the railroads represented by the National Carriers' Conference Committee of the National Railway Labor Conference (the "NCCC") and certain labor organizations representing employees of those railroads. Almost two years have passed since the Brotherhood of Maintenance of Way Employees (the "BMWE") and the NCCC signed an Imposed Agreement that contained, according to the first paragraph of the document, the "terms necessary to implement" a Congressionally-imposed agreement.

 The disputes nonetheless have continued. There is again the possibility that essential transportation services will be disrupted by a national rail strike, this time because the parties disagree about what the Imposed Agreement means and how and when the railroads may implement it. It is under the cloud of this threat that the battle has shifted into this Court.

 This matter is before the Court on cross motions for summary judgment by the BMWE as Plaintiff and the various railroads (the "Railroads") who are Defendants and Counterclaimants and Defendant and Counterclaimant Intervenors. *fn1" Also before the Court is the Railroads' motion for preliminary injunction against a strike by the BMWE over the disputed matters. For the reasons discussed below, the Railroads' motion for summary judgment is granted the BMWE's motion for summary judgment is denied, and an injunction against the threatened strike is ordered.

 Background

 The relevant material facts are not in dispute. In June 1988, the BMWE and the Railroads exchanged proposals for changes in the then-existing collective bargaining agreement. The changes concerned rates of pay, work rules, and working conditions for the maintenance of way employees employed by the Railroads. From June 1988 through early May 1990, the BMWE and the Railroads (represented by the NCCC) attempted to resolve their disputes over the various changes sought. The parties were unable to resolve their differences and arrive at a mutually-acceptable agreement.

 On May 3, 1990, President Bush, acting in accordance with the provisions of the Railroad Labor Act ("RLA"), 45 U.S.C. § 160, issued executive order No. 12714 creating President Emergency Board No. 219 ("PEB 219"). PEB 219's mandate was to conduct hearings and prepare a report on the disputes between the Railroads and the various labor organizations representing the Railroads' employees, including the BMWE. The report was intended to facilitate the parties' efforts to reach a new agreement.

 It is fair to say that the BMWE's response to PEB 219's recommendations was less than enthusiastic. The BMWE's unhappiness with the PEB 219 recommendations is apparent from the Congressional testimony of its president:

 
Despite carrier and administration claims to the contrary, the report of Presidential Emergency Board 219 does not represent a reasonable basis for settlement for the people we represent.
 
. . . .
 
. . . We all know that the Board's report gives [the railroad industry] virtually everything they would have wanted in negotiations; that is if they had participated in meaningful negotiation.

 (Exh. 2 to Counterclaim at 3 (National Rail Strike: Hearing on H.J.Res. 222 Before the Subcomm. on Transportation and Hazardous Materials of the House Comm. on Energy and Commerce, 102 Cong., 1st Sess. 63 (1991) (statement of Mac Fleming, Pres., Brotherhood of Maintenance of Way Employees).)

 Despite the involvement of PEB 219, the BMWE and the Railroads were unable to agree on a new collective bargaining agreement. The BMWE struck the Railroads on April 17, 1992. Congress intervened and passed a joint resolution that required the BMWE to end its strike against the Railroads. See House Joint Resolution No. 222, Pub. L. No. 102-29, § 1, 105 Stat. 169 (1991). The President signed the resolution on April 18, 1991. Statement by President George Bush Upon Signing H.J. Res. 222, 1991 U.S.C.C.A.N. 99 (April 18. 1991).

 Public Law No. 102-29 essentially imposed PEB 219's recommendations on the BMWE and the Railroads as their new collective bargaining agreement. The statute created a Special Board to consider the BMWE's and the Railroads' requests for clarifications, interpretations, and modifications of the PEB 219 recommendations. Id. at §§ 2-3, 105 Stat. 170-171. The recommendations as modified by the newly-created Special Board were to be binding on the BMWE and the Railroads "as though arrived at by agreement of the parties under the Railway Labor Act." Id. at §§ 1(3), 3(e), 105 Stat. 170, 171. The statute required the BMWE and the Railroads to restore the conditions that existed prior to the strike and to maintain that status quo until such time as PEB 219's recommendations became binding on the parties. Id. at § 1(1)-(2), 105 Stat. 169-170.

 The Special Board issued its report on interpretations and clarifications of PEB 219's recommendations on June 11, 1991. (Exh. 3 to Counterclaim (Report of the Special Board (102-29), Interpretation and Clarification of the Report of Emergency Board No. 219 (Exec. Ord. No. 12714), June 11, 1991).) The Special Board issued its report on requests for modification on July 18, 1991. (Exh. 4 to Counterclaim (Report of the Special Board (102-29), Requests for Modification of the Report of Emergency Board No. 219 (Executive Order No. 12714), July 18, 1991).) All requests for modifications were denied. (Id. at 15.)

 On February 6, 1992, the BMWE and the NCCC signed an "Imposed Agreement in Accordance with the Provisions of Public Law 102-20." (Exh. 5 to Counterclaim.) That agreement contained the "terms necessary to implement the report and recommendations of Presidential Emergency Board No. 219 . . . as clarified and modified by Special Board 102-29." (Id. at 1.)

 A Contract Interpretation Committee ("CIC") was established to assist in resolving disputes over the interpretation of PEB 219's recommendations. Requests by either party for clarification or interpretation of the Imposed Agreement are directed to the CIC for resolution.

 The BMWE filed claims with the Railroads premised on its own interpretations of the PEB 219 recommendations. The BMWE also presented their disputes to the CIC and certain "Section 11 arbitrators" provided for in PEB 219's report. At present, between 800 and 900 claims are pending.

 The CIC has issued numerous "awards" in the form of "answers" to "issues" presented by the BMWE and the Railroads. Subsequent to the issuance of certain awards favoring the BMWE, namely, those addressing issues concerning meal periods and washroom facilities, bulletining of meal periods, and bulletining of alternative work week schedules, *fn2" the BMWE presented the CIC with Issue No. 17, which asked

 
Were the determinations of the Contract Interpretation Committee regarding Issues Nos. 10, 12 and 16 intended to be prospective only in their effect or retroactive?

 (Exh. 11 to Counterclaim at 4.) On March 21, 1993, the CIC issued its answer. The CIC responded that

 
The Neutral Member of the Contract Interpretation Committee does not have, nor does he desire to possess, the authority to create new terms and conditions of employment. The Neutral Member of the Committee does not function and has not acted as an interest arbitrator. . . .
 
. . . .
 
This Contract Interpretation Committee has been given the unenviable task of 'fine tuning' the agreement for the parties. It is the opinion of the Neutral Member of the Committee that the parties' inability to reach agreement on definitional matters such as 'what constitutes a "production gang"' or 'what constitutes a "washroom facility"' establishes no basis for our reaching backward and concluding that certain questions posed by the BMWE, which have resulted in answers favorable to the Organization, are properly given retroactive effect. On the other hand, where PEB No. 219 was specific and established, for example, increased allowances for meals and lodging, then those provisions obviously became effective as of the date of the agreement; and a carrier's failure to abide by those clear provisions would justify the payment of claims retroactively.
 
. . . It is the opinion of the Neutral Member of the Committee that the determinations rendered on October 7, 1992 regarding Issues Nos. 10, 12 and 16, absent preponderant evidence to the contrary, were to be and must be applied prospectively as of that date.

 (Exh. 10 to Counterclaim.)

 The CIC's answer to Issue No. 17 exacerbated rather than resolved the disagreements between the BMWE and the Railroads over implementation of PEB 219's recommendations. According to the BMWE, "the corollary to [the CIC's opinion regarding retroactivity] is . . . clear: until 'definitional' issues are resolved by voluntary agreement or by the C.I.C., the contract terms covering those issues have not yet been formed, and the pre-P.E.B. 219 terms and conditions of employment remain in place." (Exh. 12 to Counterclaim at 1 (Ltr. of May 21, 1993 from M.A. Fleming to Charles I. Hopkins, Jr.).) The BMWE took the position that work rule changes implemented by the Railroads prior to CIC resolution of "definitional questions" constituted "status quo violations" by the Railroads. (Exh. 15 to Counterclaim at 1 (Ltr. of June 23, 1993 from M. A. Fleming to Charles I. Hopkins, Jr.).)

 As a result of the dispute over the Railroads' implementation of the disputed PEB 219 recommendations, the BMWE commenced informational picketing on July 19, 1993. (Exh. 18 to Counterclaim at 1.) The BMWE's president advised the Railroads that "as a result of the persistence of the carriers in violating the status quo . . . we will feel free to take whatever appropriate course of action which we may avail ourselves of [sic]." (Exh. 16 to Counterclaim at 1 (Ltr. of July 14, 1993 from M.A. Fleming and Charles I. Hopkins, Jr.).) After a series of meetings between representatives of the BMWE and the Railroads, the president of the BMWE advised the chairman of the NRLC that the BMWE's position was that the BMWE was "free to strike so long as the carriers continue to unilaterally implement their interpretations of PEB 219 work rules." (Exh. 25 to Counterclaim (Ltr. of Aug. 12, 1993 from M.A. Fleming to Charles I. Hopkins, Jr.).)

 Plaintiff BMWE commenced this action against Defendant Railroads on September 15, 1993, by filing its Complaint for Declaratory Judgment or, in the Alternative, Petition to Set Aside Adjustment Board Award. In its complaint, the BMWE asks the Court to grant a declaratory judgment to resolve the dispute over the proper interpretation of Public Law 102-29 as it pertains to the Railroads' obligation to maintain the pre-PEB 219 status quo. (Compl. at 17.) Alternatively, the BMWE asks the Court to set aside the CIC's award with respect to Issue No. 17 as being inconsistent with the requirements of Public Law 102-29 and outside of the scope of the CIC's jurisdiction. (Compl. at P 43-44.)

 Defendant Railroads filed an answer and a counterclaim against the BMWE on September 29, 1993. *fn3" The Railroads seek a declaratory judgment that (1) the threatened strike is over minor disputes because those disputes concern the application and interpretation of the national agreement imposed by P. L. 102-29 and that, resultantly, the strike is unlawful under section 3 of the RLA; (2) the threatened strike violates the BMWE's statutory duty under section 2 First of the RLA to "maintain agreements;" (3) the strike will violate sections 2 First, 5 First and 6 of the RLA because it constitutes self-help to change an agreement without following the required procedures; and (4) the CIC's Award with respect to Issue No. 17 is valid and enforceable. (Ans. and Counterclaim of Defs. at 37-38.)

 In addition, the Railroads ask the Court to enjoin the BMWE from authorizing, encouraging, or engaging in a strike or work stoppage over any disputes concerning the application or interpretation of the national agreement imposed by P.L. 102-29. (Id.) They also ask the Court to enjoin the encouragement of, authorization of, or engagement in any work stoppage over the disputes in question, and to enjoin the BMWE and its agents to "make all reasonable efforts to prevent" any such action. (Id.)

 On October 6, 1993, the Railroads sought a Temporary Restraining Order enjoining the BMWE from resorting to strikes to resolve the disputes over implementation of the Imposed Agreement. The motion was withdrawn when the BMWE agreed to forebear self-help against the Railroads until either disposition of the motions now before the Court or the expiration of forty days, whichever was earlier. (Joint Stip. at P 6, Oct. 8, 1993.)

 Plaintiff BMWE filed a motion for summary judgment in its favor on both the Complaint for Declaratory Judgment and the Counterclaim of Defendants and Defendant and Counterclaimant Intervenors on October 27, 1993. On November 8, 1993, the Railroads filed their cross-motion for summary judgment.

 Discussion

 According to the Railroads, the disputes between the BMWE and the Railroads over various issues, namely, the effective date of the work rules imposed by P.L. 102-29, the size of production crews, the requirements for work site reporting, and the imposition of alternative work schedules by the carriers, are "minor disputes" subject to compulsory arbitration. The basis for their position is that the disputes concern the "interpretation or application" of railway labor agreements under 45 U.S.C. § 153 First (i) and Consolidated Rail Corp. v. Railway Labor Executives' Ass'n, 491 U.S. 299, 303, 109 S. Ct. 2477, 105 L. Ed. 2d 250 (1988) (hereafter, Conrail).

 The Railroads argue that two corollaries flow from this characterization of the disputes as minor disputes. They maintain that this Court has no jurisdiction to resolve those disputes. They also maintain that any strike by the BMWE over these issues would be illegal inasmuch as minor disputes are subject ...


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