In Dempsey, an employee who failed to pay fees to UTU would stop accruing seniority in train service and the employee would fall behind others who continued to gain seniority. Upon an employee's return to train service, the decline in his relative positive on the seniority list might result in no position for the employee to fill or too little seniority to "bump" another employee. In this case, employees falling under paragraph (b) will lose all seniority and thus we will assume the likelihood of their potential unemployment is greater, perhaps far greater.
According to the Seventh Circuit, the Dempsey plaintiffs effectively sought a pronouncement that Section 2, Eleventh, provided some guaranteed right to continue accruing seniority. The Plaintiffs here make the same argument with the additional request that this Court find in Section 2, Eleventh, a guaranteed right to keep already accrued seniority. As explained in Dempsey, however, the RLA is not a guarantee of employment for life and employees have no vested right in the seniority created by the collective bargaining agreement between CCP and UTU. 16 F.3d 832 at 839-40. Collective bargaining agreements and the seniority rights defined within them are contracts subject to revision, modification or abrogation. Id. To put it simply, seniority is not derived from union membership; rather it is a right derived from and limited by the collective bargaining agreement.
Under these circumstances, the Dempsey court found that Section 2, Eleventh (c) provides no guarantee that a transferred employee has the right to continue to accrue seniority in his old craft while working in another. Id. The Seventh Circuit acknowledged the temptation of continuing to accrue additional seniority might entice some BLE members to satisfy the union shop requirement by paying dues to UTU to avoid potential unemployment as others passed them on the train service seniority list. Id. at 840. Succumbing to temptation to obtain a benefit that increases employment security is not the same as being forced to do so as a condition of continued employment.
As we said above, the temptation here is more extreme and simply stated is pay UTU or lose all seniority and perhaps find yourself unemployed when you return to train service. The Dempsey plaintiffs made a similar "de facto" condition of employment argument to no avail. Though the argument is stated in starker terms here, we find no basis to distinguish it from Dempsey. Thus, this Court reaches the same conclusion as the Seventh Circuit and finds that Rule 55 and its Seniority Retention clauses are not union shop agreements and do not fall within the scope of Section 2, Eleventh.
Section 2, Third and Fourth5
In Dempsey, both the Seventh Circuit and the District Court found that plaintiffs had waived any argument under Section 2, Third and neither court addressed the issue.
We find that Section 2, Third and Fourth are so closely related that the disposition of the two claims follows one from the other in this case. Both Section 2, Third and Fourth have as their focus "the pre-certification rights and freedoms of unorganized employees." Trans World, 489 U.S. at 440; National R.R. Passenger Corp. v. International Ass'n of Machinists & Aerospace Workers, 915 F.2d 43, 51 (1st Cir. 1990). As the Dempsey court explained, Section 2, Fourth's application to "post-certification" controversies is extremely limited and the RLA, itself, is wholly inexplicit as to scope of permissible "self-help" once parties have completed the RLA's dispute resolution process. 16 F.3d 832 at 841. Under these circumstances, the courts have intervened only in the unusual case where the plaintiff can show that the employer's actions "strike a fundamental blow to union or employer activity and the collective bargaining process itself." Trans World, 489 U.S. at 442; Dempsey, 16 F.3d 832 at 841. Whether Rule 55 strikes such a fundamental blow is now the question.
Defendants rely on the Chairman Hales' affidavit in which he explains that the accelerating transfer of train service employees to engine service has lead to continued expenditure of resources and funds to protect the train service seniority of employees working outside the craft. For example, approximately 23 of the CCP engine service employees retain train service seniority. Of the 120 active train service employees, over a quarter are working outside of that craft. According to Hales, "the 'seniority retention' agreement was sought in order to provide that train service employees working outside the craft, but whose seniority was protected by UTU agreements, would pay fair support to the UTU as [the] labor organization that was maintaining those agreements." In Dempsey, the Seventh Circuit found a similar statement sufficient evidence of the lack of anti-union animus to place the burden on the opponent to put forward evidence of such animus. 16 F.3d 832 at 842-43.
In addition, while we ignored Hales' statements regarding the application of paragraph (b) when deciding whether Rule 55 is a union shop agreement, we do consider them here on the question of CCP's and UTU's intent. According to Hales, CCP and UTU do not intend to enforce the more punitive aspects of Rule 55 which would result in the loss of accrued seniority for certain employees who fail to pay the required fee to UTU. While the Court wonders why the parties did not write or amend the provision as they now say they will enforce it, we consider Hales' statement as some evidence that Defendants are not conspiring to destroy or undermine BLE and have no intent to do so through application of Rule 55.
In contrast, the Court is unable to find any affirmative evidence of anti-union animus or inherently destructive activity cited by Plaintiffs. As in Dempsey, Plaintiffs spend much time arguing about the NLRA and little time supporting their Section 2, Fourth claim.
Plaintiffs do repeatedly contend that Rule 55 forces BLE members to pay additional dues to UTU or join UTU outright. The Court acknowledges the real temptation Rule 55 provides, but that is far from saying a negotiated provision that actually benefits one union, UTU, is inherently destructive of union or employer activity. The Plaintiffs offer no proof that either UTU or CCP intended or planned to undermine BLE as the bargaining representative for engine service workers. Instead, Defendants' focus appears to have been on their respective goals of reducing the crew consist and obtaining some financial support for UTU's efforts in administering train service labor agreements in the face of declining membership.
As in Dempsey, we do not find the impact of Rule 55 as severe as some measures unilaterally adopted by employers targeting specific unions and upheld by courts. Dempsey, 16 F.3d 832 at 842 (emphasis added); see, e.g., Trans World, 489 U.S. at 443 (airline's policy of retaining junior crossover strikers over full-term strikers upheld under Section 2, Fourth); Renneisen v. American Airlines, Inc. 990 F.2d 918, 924-25 (7th Cir.), cert. denied, 126 L. Ed. 2d 251, 114 S. Ct. 303 (1993) (agreement between union and airline relinquishing wages and benefits for future pilots and preserving wages and benefits for current pilots held lawful under Section 2, Fourth); International Ass'n of Machinists v. Alaska Airlines, Inc., 813 F.2d 1038, 1039 (9th Cir.), cert. denied, 484 U.S. 926, 98 L. Ed. 2d 250, 108 S. Ct. 290 (1987) (airlines's recall plan that gave priority for new jobs to replacements and crossover strikers over full-term strikers upheld under Section 2, Fourth). But see Ruby v. Taca International Airlines, S.A., 439 F.2d 1359, 1364 (5th Cir. 1971) (air carrier's attempt to move base of pilots outside U.S. depriving union of legal representative status deemed violative of Section 2, Fourth). In sum, the Court does not find Defendants' adoption and application of Rule 55 in violation of Section 2, Fourth because it does not strike a fundamental blow to union or employer activity and was not motivated by anti-union animus.
For the foregoing reasons, the Court grants the Defendants' motion for summary judgment and denies the Plaintiffs' motion for summary judgment.
GEORGE M. MAROVICH
UNITED STATES DISTRICT JUDGE
DATED: May 26, 1994