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May 26, 1994



The opinion of the court was delivered by: GEORGE M. MAROVICH

Plaintiffs Gary D. Carr, Daniel L. Christensen, Gary L. Hanson, Donald W. Hofmaster, John H. Wagner, Donald L. Wood Jr., and the Brotherhood of Locomotive Engineers ("BLE") filed a complaint against Defendants Chicago, Central & Pacific Railroad Company ("CCP") and the United Transportation Union ("UTU") seeking declaratory and injunctive relief to prohibit the enforcement of an amendment to a collective bargaining agreement executed between CCP and UTU. On July 30, 1993, this Court stayed ruling on the pending cross-motions for summary judgment until such time as the Seventh Circuit issued an opinion in a nearly identical case, Dempsey v. The Atchison, Topeka and Santa Fe Railway Co., 16 F.3d 832 (7th Cir. 1994). The Seventh Circuit has now ruled on the issues raised in that case concerning the validity under the Railway Labor Act of a similar side agreement entered into by a rail carrier and Defendant UTU which requires individuals who transfer out of the train service craft to pay a fee or dues to UTU if those individuals wish to continue to accumulate seniority while they are working outside the craft. As the Court realized when it stayed ruling on the pending motions, the Dempsey court's opinion is dispositive of many of the issues raised here. For the reasons set forth below, the Court will grant Defendants' motion for summary judgment and will deny Plaintiffs' motion for summary judgment.


 As is common, the collective bargaining agreements between CCP and UTU and between CCP and BLE contained a union shop provision requiring that employees join the union designated as their authorized representative as a condition of continued employment. The agreements also provided that this requirement is satisfied by membership in any other national labor organization organized under the RLA which admits as members employees in the train or engine service crafts. Thus, membership in either UTU or BLE satisfied the union shop provision. Over time, it became common for train service employees to elect to hold membership in BLE even though it is not the designated representative of such employees. The six individual plaintiffs are members of BLE and were working in engine service at the time of this action. Previously, they had worked in train service and hold seniority in both train service and engine service as locomotive engineers.

 As in Dempsey, a train service employee first obtained seniority through date of hire and thereafter maintained seniority per the collective bargaining agreement. The agreement provided that even when an employee leaves train service crafts for other crafts, such as engine service, the employee would still continue to accrue seniority in train service. Due to agreements made by UTU in 1985, it became increasingly common for railroads to draw upon train service employees for new engine service workers. Thus, a growing number of train service employees accumulated seniority as locomotive engineers under BLE agreements and also continued to accrue seniority as train service employees under UTU agreements.

 In 1988, a round of negotiations between the nation's railroads and railway labor organizations took place concerning a reduction in the number of workers required on each train, known as the "crew consist." BLE and UTU participated in these negotiations but CCP did not. After negotiations deadlocked, President Bush appointed Presidential Emergency Board No. 219 to investigate and report its findings on the dispute. The Board recommended that UTU negotiate agreements with individual railroads to reduce the crew consist. To avert a nationwide strike, the Congress, on April 18, 1991, passed Public Law 102-29, 105 Stat. 169, making the Board's recommendations binding.

 On June 26, 1992, CCP and UTU entered into a new collective bargaining agreement containing a reduced crew consist provision as per the Board's recommendations. According to Plaintiffs, as a result of the reduction, UTU stood to lose about two-thirds of its train service members or its potential members. As part of the new agreement, CCP and UTU negotiated a change in the rules governing accumulation and retention of seniority by train service employees while working in other crafts.

 Plaintiffs claim Rule 55 violates Section 2 Third, Fourth, Fifth and Eleventh of the RLA, 45 U.S.C. § 152, Third, Fourth, Fifth and Eleventh. The parties agree that the facts are essentially undisputed, thus the Court's task is made less complex. Because the parties have filed cross-motions, we must extend the required favorable inferences to each when viewing the other's motion. Thomas v. Sullivan, 801 F. Supp. 65, 67 (N.D. Ill. 1992). In the end, we must determine whether either party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 687 (7th Cir. 1991).

 Section 2, Eleventh (c) and Dual Unionism3

 Plaintiffs argue that Rule 55 violates Section 2, Eleventh(c) by requiring employees to pay a fee or dues to UTU to continue to accrue seniority and effectively forcing them to join more than one union or change to UTU membership. The Seventh Circuit disposed of this argument in Dempsey. Section 2, Eleventh (c) only limits Section 2, Eleventh (a)'s general authorization of a union shop under the RLA. As the Seventh Circuit stated, "the prohibitions against dual unionism contained in Section 2, Eleventh (c) only kick in when the agreement at hand purports to be a union shop agreement made pursuant to Section 2, Eleventh (a)." Dempsey, 16 F.3d 832 at 838. The central issue thus becomes whether Rule 55 conditions continued employment in the train service craft upon payment of fees or dues to UTU. Id.

 Nothing on the face of Rule 55 establishes such conditions for those employees who were transferred or promoted to train service prior to the date of the agreement between CCP and UTU. As in Dempsey, these employees are simply required to pay the fees or dues if they wish to obtain an additional benefit, further accumulation of train service seniority. If such an employee decides not to pay UTU, he would still satisfy the union shop agreement as a member of BLE and could not be terminated for failure to comply with that provision. Dempsey, 16 F.3d at 838. Thus, as to paragraph (a) of the Seniority Retention clause, we find that it is not a union shop provision and thus is not violative of Section 2, Eleventh.

 For those employees who make the transfer after the date of the agreement and fall under paragraph (b) of the Seniority Retention clause, closer examination is warranted. We must interpret Rule 55 as it is written, not as Hales contends it will be enforced. As such, the Court must determine whether the loss of already earned seniority for failure to pay UTU dues ...

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