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CORZINE v. BROTHERHOOD OF LOCOMOTIVE ENG'RS & ILLI

October 23, 1997

MARVIN EDWARD CORZINE, JAMES PHILLIP HERNDON, and UNITED TRANSPORTATION UNION, Plaintiffs,
v.
BROTHERHOOD OF LOCOMOTIVE ENGINEERS and ILLINOIS CENTRAL RAILROAD COMPANY, Defendants.



The opinion of the court was delivered by: MAROVICH

 Plaintiffs Marvin Edward Corzine ("Corzine"), James Phillip Herndon ("Herndon"), and United Transportation Union (collectively "UTU") filed a complaint against Defendants Brotherhood of Locomotive Engineers ("BLE") and Illinois Central Railroad Company ("IC") alleging that Article 9 of the May 27, 1997 Agreement between BLE and IC (the "Agreement") violates the Railway Labor Act ("RLA"), 45 U.S.C. § 151, et seq. Specifically, UTU contends that the Agreement constitutes a breach of the duty of fair representation required by Section 2 Fourth of the RLA, 45 U.S.C. § 152 Fourth, and a direct violation of Section 2 Eleventh(c) of the RLA, 45 U.S.C. § 152 Eleventh(c). The parties have filed cross-motions for summary judgment. For the reasons set forth below, the Court grants BLE's and IC's motions for summary judgment and denies UTU's motion for summary judgment.

 BACKGROUND

 IC is an interstate railway carrier within the meaning of Section 1 of the RLA. Like most railroads, IC has collective bargaining agreements with different unions which represent various categories, or "crafts," of train service employees. UTU and BLE are national labor organizations, organized pursuant to the RLA, representing employees in engine (engineer) and train (conductor, brakemen, yard) service. UTU is the exclusive bargaining representative for the train service craft, which includes IC's conductors, brakemen, and switchmen. BLE is the exclusive bargaining representative for the engine service craft, which includes IC's locomotive engineers. Corzine and Herndon are presently employed as engineers by IC. Both employees have seniority as locomotive engineers and are members of UTU, but not of BLE.

 The parties and subject matter of this case are not unfamiliar to this Court. The litigation between UTU and BLE, at least so far as this particular action is concerned, began in 1992 when UTU began including provisions for seniority maintenance fees in its collective bargaining agreements with various railroads. See Carr v. Chicago, Central & Pacific R.R., 853 F. Supp. 282 (N.D. Ill. 1994). At the time, UTU was experiencing what it characterized as an accelerated transfer of train service employees into engineer positions. This exodus led to increasing expenditures by UTU to protect the seniority of its members who were working outside of the craft. In some cases, according to UTU, more than a quarter of its members were working outside of the train service craft and "free riding" on UTU's efforts to negotiate and administer its collective bargaining agreements. To alleviate this drain, UTU engaged in several "side letter" agreements with various railroads which required train service employees who were working outside of the craft to pay a "seniority maintenance fee" to continue to accumulate, and in some cases retain, train service seniority.

 BLE brought suit in several federal courts, including this one, claiming that the agreements violated various provisions of the RLA, particularly Sections 2, Eleventh(c) and 2, Fourth, 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. BLE's challenges to the UTU seniority fees ultimately proved unsuccessful. Consequently, BLE elected to respond to UTU's "out of craft" seniority fees by imposing seniority fees of its own on UTU's members. Although the matter is therefore resolved as to the legality of UTU's seniority fees, the parties have nevertheless returned to federal court, albeit on opposite ends of the caption, and prevail upon this Court to consider the legality of BLE's seniority fees and to answer the age old question: Is what's good for the goose also good for the gander?

 This action is almost identical to the earlier federal actions brought by UTU with a single exception: Article 9 of BLE's 1997 agreement with IC creates seniority fees not only for those employees who are working outside of the engineer craft, but also for employees from train service who are presently working inside the engineer craft. *fn1" Thus, UTU's members cannot continue to accumulate engineer seniority while working in the engineer craft unless they elect to pay a seniority fee to BLE. UTU contends that such "in craft" seniority fees violate the RLA even though "out of craft" fees do not.

 DISCUSSION

 I. Standards for Summary Judgment

 All of the parties have presented the Court with motions for summary judgment. Summary judgment is appropriate where the pleadings, answers to interrogatories, admissions, affidavits, and other materials show that there is "no genuine issue as to any material fact" and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Only genuine disputes over "material facts" can prevent a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). When considering a motion for summary judgment, the Court must view the facts, and all inferences drawn from the facts, in the light most favorable to the nonmovant. Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991); Roman v. U.S. Postal Serv., 821 F.2d 382, 385 (7th Cir. 1987). Because the parties have filed cross-motions, the Court must extend the required favorable inferences to each when viewing the other's motion. Andersen v. Chrysler Corp., 99 F.3d 846, 856 (7th Cir. 1996). The parties are in essential agreement as to the facts, therefore the question is whether any of them 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).

 II. Dual Unionism and Section 2, Eleventh(c)

 In an effort to ensure that all railroad employees would be compelled to share in the costs of union representation -- thus avoiding the perceived problem of "free riders" -- Congress added Section 2, Eleventh(a) to the RLA in 1951. *fn2" See Ellis v. Brotherhood of Ry., Airline & S.S. Clerks, 466 U.S. 435, 446, 80 L. Ed. 2d 428, 104 S. Ct. 1883 (1984). Under Section 2, Eleventh(a), a union and a railroad may enter into an agreement that requires, "as a condition of continued employment," that all employees in certain crafts join one of the RLA recognized railway unions representing their craft or class. 45 U.S.C. § 152 Eleventh(a). These are commonly referred to as "union shop" agreements. The union shop provision as drafted in Section 2, Eleventh(a), however, posed distinct problems in the railroad industry where employees often shuttled back and forth between different crafts -- train service and engineer service. Under Section 2, Eleventh(a), however, an employee shuttling between services might be forced to constantly change unions or to pay dues to two unions until reaching a level of seniority where he could remain in only one service.

 In recognition of this dilemma, Congress attempted to tailor the RLA to accommodate intercraft mobility in Section 2, Eleventh(c). *fn3" That subsection modified the RLA's union shop provision to protect against the possibility that an employee could lose his or her job for failure to join multiple unions among the operating crafts. Specifically, Section 2, Eleventh(c) provides, "the requirement of membership in a labor organization [pursuant to a union shop agreement] shall be satisfied . . . if said employee shall hold or acquire membership in any one of the labor organizations, national in scope, organized in accordance with this chapter." 45 U.S.C. § 152, Eleventh(c). The Supreme Court explained that "the only purpose of Section 2, Eleventh(c) was a very narrow one: to prevent compulsory dual unionism or the necessity of changing from one union to another when an employee temporarily changes crafts." Landers v. Nat'l R.R. Passengers Corp., 485 U.S. 652, 657-58, 99 L. Ed. 2d 745, 108 S. Ct. 1440 (1988). Thus, Section 2, Eleventh(c) would, for example, allow a UTU member to move from train service to engineer service without being forced to change his union membership to BLE. *fn4"

 UTU argues that Article 9, Section 1(b) of the Agreement between BLE and IC violates Section 2, Eleventh(c) of the RLA by requiring employees who are working as engineers to pay membership dues or the equivalent to BLE if they want to continue to maintain and accrue seniority as engineers. UTU insists that because all jobs are bid for, assigned and held on the basis of seniority, Article 9 effectively forces those engineers who are UTU members to join two unions or change their membership to BLE -- thus, vitiating the "safe harbor" ...


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