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Brotherhood of maintenance of Way Employees v. Atchison

December 22, 1997

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, PLAINTIFF-COUNTER DEFENDANT-APPELLEE,

v.

ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, BURLINGTON NORTHERN RAILROAD COMPANY, SUED AS BURLINGTON NORTHERN RAILROAD, CONSOLIDATED RAIL CORPORATION, ET AL., DEFENDANTS-APPELLANTS,

AND

NORFOLK SOUTHERN RAILWAY COMPANY AND NORFOLK AND WESTERN RAILWAY COMPANY, COUNTER PLAINTIFFS-APPELLANTS.



Appeal from the United States District Court for the Central District of Illinois.

Nos. 96 C 1515, 96 C 1524 Joe B. McDade, Judge.

Before Cudahy, Diane P. Wood and Evans, Circuit Judges.

Cudahy, Circuit Judge.

Argued February 28, 1997

Decided December 22, 1997

The nation's major railroads unite in this appeal to confront the union of rail maintenance workers, the Brotherhood of Maintenance of Way Employees. The issue is the extent to which the railroads must compensate their maintenance workers for travel expenses; the governing instrument is the collective bargaining agreement (the "Agreement") of September 26, 1996. The union believes that the Agreement obliges the railroads to pay travel expenses for all "traveling employees." The railroads counter that they need only pay travel expenses for employees in roving "regional and system gangs."

For the most part, American labor law leaves the resolution of industrial disputes to the parties' own devices, subject to procedural safeguards of fairness. But the legal milieu for railroads and airlines is different. A strike that halted traffic along these arteries of commerce could traumatize the nation's economy. The specter of such labor unrest led Congress in 1926 to establish a two-track regime to govern the course of a dispute. Railway Labor Act ("RLA" or the "Act"), 44 Stat. 577, as amended, codified at 45 U.S.C. sec.sec. 151-188; see Texas & N.O.R. Co. v. Brotherhood of Ry. & S.S. Clerks, 281 U.S. 548, 562-66 (1930). Congress charged the federal courts with a seminal but limited role under this regime--that of taxonomist. Courts are to sort labor disputes into two piles, major or minor. Minor disputes are about enforcing rights already agreed upon in a contract. The only way to resolve a minor dispute is to go to binding arbitration; the Act forbids strikes over a minor dispute. See Consolidated Rail Corp. v. Railway Labor Executives' Ass'n, 491 U.S. 299, 302-04 (1989). Major disputes are about creating new rights. The avenue for resolving this kind of dispute is ultimately open-ended. The disputants must first submit to a long course of bargaining and mediation, during which they are obliged to preserve the status quo. But, if at the end the railroad and union have still not come to an agreement, the RLA steps out of the way, and the disputants may resort to raw "economic force." See Conrail, 491 U.S. at 303.

This dispute arose soon after the Agreement was concluded. The railroads insisted that they had no obligation to pay the travel expenses of employees beyond those in regional and system gangs. Within a month (October 24, 1996) the union had filed suit in the Central District of Illinois, requesting a declaration that the railroads had tried to amend the Agreement unilaterally, which is to say that the dispute was major. Four of the railroads counter-claimed, urging that the dispute was minor. (The District Court for the Western District of Virginia transferred a parallel proceeding brought by the remaining two railroads, Norfolk Southern Railway Co. and Norfolk and Western Railway Co., and the suits were consolidated.) The railroads sought a preliminary injunction against any strikes, work stoppages or picketing over the issue of travel expenses. The parties agreed to combine the hearing on the preliminary injunction with the trial on the merits. See Fed. R. Civ. P. 65(a)(2). The district court held that the dispute was major and ruled for the union. The railroads appeal. Our review is de novo. Railway Labor Executives Ass'n v. Norfolk & W. Ry. Co., 833 F.2d 700, 706 (7th Cir. 1987).

The case turns on a question of interpretation: to which sources may a court look in interpreting a collective bargaining agreement under the RLA? We hold that a court may refer to the official, formal bargaining history when it construes an agreement under the RLA. We reverse.

I. History of the dispute over travel expenses

The controversy between the parties turns on two views of the classes of employees that are entitled to have their travel expenses reimbursed. The union takes the broader view--the Agreement encompasses all "traveling employees." A "traveling employee" is one whose work travels and who does not report to a fixed headquarters. An employee who commutes long-distance daily to a particular fixed site does not fit in this group. From what we can glean from the record, there are two kinds of traveling employees: those attached to district gangs, and those associated with regional and system gangs. The district gangs work within just one of the geographical units into which the railroads divide their workers, the seniority districts. Regional and system gangs, on the other hand, may traverse two or more seniority districts in the course of their work. Because the seniority districts can stretch over hundreds of miles, an employee from either a district gang or a regional and system gang may have to work a considerable distance from his or her home.

The history of the instant dispute reflects the unique legal setting of labor strife in the rail industry--a setting on which the disposition of this case depends. Railroad maintenance by its very nature demands that workers travel. The union, however, has bitterly opposed the use of regional and system gangs, which tends to impose an extraordinary travel burden on the gang members. The railroads refused to give up the regional and system gangs, and in 1991, the conflict impeded a negotiated agreement. With a strike looming, President Bush invoked the RLA, 45 U.S.C. sec. 160, to appoint Presidential Emergency Board No. 219 ("PEB 219"). PEB 219 investigated the discord and rejected the union's proposal to eliminate the regional and system gangs. The union opted to strike, but Congress intervened and imposed PEB 219's recommendations wholesale on the railroads and the union. Pub. L. No. 102-29, 105 Stat. 169 (1991).

The 1991 agreement allowed for re-opening negotiations in November 1994. The issue of regional and system gangs got the limelight again as the union once more sought to cut them back. The contentious issue stalled agreement a second time. President Clinton appointed Presidential Emergency Board 229 ("PEB 229"), which issued its report on June 23, 1996 ("PEB 229 Rep."). Perhaps spurred by the memory of Congress' intervention in 1991, this time the railroads and the union averted a strike. With regard to travel expenses (the issue before us), the union and the railroads could not agree on implementing language. They chose instead to copy verbatim the pertinent recommendation of PEB 229 as Article XIV ("Travel Allowance") of the Agreement.

II. Article XIV viewed alone

We turn then to Article XIV to see whether the dispute is major or minor. The distinction hinges on whether old rights are being enforced or new rights created. Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723 (1945). Unsurprisingly, a railroad and a union often differ about classifying a particular dispute. Unions lean toward considering disputes major, and railroads the other way, because the chief consequence of pigeonholing a dispute as "major"-- that a union may opt to strike or picket--grants the union considerable leverage over the railroads. In Conrail, the Supreme Court instructed how courts should sort disputes into the two piles. A suit is minor if the railroad's interpretation "is arguably justified by the terms of the parties' collective-bargaining agreement." Conrail, 491 U.S. at 307 (emphasis added). "Where, in contrast, the employer's claims are frivolous or obviously insubstantial, the ...


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