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UNITED TRANSP. UNION v. ILLINOIS CENT. R.R.

March 11, 1998

UNITED TRANSPORTATION UNION, Petitioner,
v.
ILLINOIS CENTRAL RAILROAD, Respondent, and BROTHERHOOD OF LOCOMOTIVE ENGINEERS, Respondent-Intervenor.



The opinion of the court was delivered by: MORAN

 Although this case is now before the court on United Transportation Union's (UTU) petition to enforce an arbitrator's award under the Railway Labor Act, 45 U.S.C. § 151 et seq., it has a long history. It stems from the historic disputes between UTU and respondent Brotherhood of Locomotive Engineers (BLE) regarding the representation of railroad employees. BLE represents locomotive engineers, while UTU represents locomotive firemen.

 This particular case arose out of agreements between the unions and Illinois Central Railroad (IC) governing use of "extra boards" as a means of regulating the "ebb and flow" of firemen into and out of the ranks of engineers. Essentially, UTU argues that in 1986 BLE entered into an agreement that allowed IC to establish "guaranteed" extra boards in violation of an earlier tri-partite agreement between IC, UTU, and BLE that had set up "mileage" extra boards. UTU sued to enjoin the 1986 agreement, but the district court held that the issue was a "minor dispute" under the IC and the court was therefore without subject matter jurisdiction to resolve it. United Transportation Union v. Illinois Central Gulf Railroad Company, No. 87-C-3845 at 16 (S.D.Ill. Oct. 31, 1988) (hereinafter, UTU v. ICGRC).

 As a minor dispute, the matter proceeded to arbitration before Public Law Board (PLB) 4685. On April 24, 1995, the PLB issued its decision resolving the issue "in accordance with the position advocated by UTU." On March 27, 1997, UTU filed the instant petition to enforce the PLB's decision against IC. UTU then filed a motion for summary judgment which generated cross-motions from both IC and BLE, as respondent-intervenor. UTU claims that jurisdiction is proper pursuant to Section 3 First (p) of the Railway Labor Act, 45 U.S.C. § 153 First (p), and 28 U.S.C. §§ 1331 and 1337. For the reasons stated herein, we grant UTU's motion for summary judgment and deny IC's and BLE's motions for summary judgment.

 BACKGROUND

 UTU is an unincorporated railway labor organization with its principal place of business in Cleveland, Ohio, which claims it is the duly designated collective bargaining representative of IC employees working as firemen. IC is a corporation engaged in the interstate transportation of goods by rail with its principal offices in Chicago, Illinois, and is subject to the provisions of the Railway Labor Act. BLE is and has been the duly certified collective bargaining representative for the craft of locomotive engineers at IC.

 Historically, engineer service employees of IC have worked as either engineers or firemen, depending on the volume of IC business and the number of temporary vacancies among engineers. Locomotive engineers came from the ranks of firemen or were qualified engineers from another railroad. An employee hired as a fireman was promoted to engineer after on-the-job training and passing required examinations. The first regular work as an engineer performed by a fireman who had qualified to enter the rank of engineer was usually an assignment to the engineers' "extra boards." The extra boards were used by IC in order to fill vacancies in regularly assigned engineer positions which arose from sickness, vacations, or a surge in business. The names of extra engineers were listed on the boards and were called on a first-in/first-out basis, with the names being moved up as the engineers ahead received their assignments. The fireman who was "promoted" by being listed on the extra boards would generally be the fireman with the most seniority in the particular seniority district. The promoted fireman would receive a date on the engineers' seniority roster upon performing his first regular assignment as an engineer. If there were no vacancies, the engineers on the extra board would perform no service and receive no compensation. When the engineer vacancies were filled, the junior engineers would be demoted back to the rank of firemen, where they retained their seniority and took back firemen positions held by workers with less seniority.

 In January 1960, IC entered into separate but identical agreements with UTU's predecessor (hereinafter collectively referred to as UTU) and BLE, regarding the regulation of the "ebb and flow" of engineers through the system of "mileage" extra boards (1960 agreements). Pursuant to these agreements, the extra boards were to be regulated such that the engineers on the lists were permitted to "accumulate between 4000 and 4800 miles in road passenger service, 3000 and 3800 miles in other road service, and 2600 and 3200 miles in yard service, or the equivalent thereof, in each thirty-day period" (UTU Reply to BLE's 12(M) Stmt. Ex. B). To accomplish these goals it was agreed that the mileage requirements would be checked and relevant adjustments made "at any time, but must be made on the first, eleventh, and twenty-first day of each calendar month" (id.). The agreements also provided that the number of engineers on the boards could be adjusted "by mutual consent" where business demands fluctuated (id.). The general rule was that when an individual engineer accumulated the maximum mileage figure in a one-month period, he was required to be laid off for the balance of the period if there were other engineers available to relieve him (id).

 The crux of the dispute in this case involves how two subsequent contracts affected the original 1960 agreements on extra boards. First, on October 31, 1985, the nation's railroads, including IC, entered into an agreement with UTU which provided that the "craft or class of firemen (helpers) shall be eliminated through attrition except to the extent necessary to provide the source for engineers and for designated passenger firemen, hostler and hostler helper positions. Trainmen shall become the source of supply for these positions as hereinafter provided" (McCoy Aff. Ex. A, Article XIII). UTU claims that until 1992 workers who were selected for engineer training continued to establish firemen seniority. BLE disagrees, stating that since October 31, 1985, workers becoming engineers have not accrued firemen seniority.

 The second agreement was made in 1986. During the 1985 round of negotiations, BLE and the nation's railroads were unable to reach an agreement, and that dispute was submitted to interest arbitration before Arbitration Board No. 458, which issued its award and the agreement for the parties on May 19, 1986 (1986 agreement). This award contained Side Letter No. 20, which provided a provision for "guaranteed" extra boards. Carriers, like IC, were thereby granted the "right" to establish such boards, which guaranteed that each employee on the board would receive payment at "the equivalent of 3000 miles at the basic through freight rate for each calendar month unless the employee is assigned to an exclusive yard service extra board in which event the guarantee will be the equivalent of 22 days' pay at the minimum 5-day yard rate for each calendar month" (UTU Mot.Ex. 2 at 10). Thus, whereas engineers on the extra boards prior to 1986 (even those regulated by mileage under the 1960 agreements) did not receive pay unless they actually worked, the extra boards provided for in Side Letter No. 20 guaranteed that the engineers on the boards would be paid irrespective of whether they worked.

 Beginning in 1986, IC established engineers' guaranteed extra boards at several locations. On October 7, 1987, IC served notice that was going to establish an engineers' guaranteed extra board at East St. Louis. UTU protested that such an action, taken without the consent of UTU, violated the 1960 agreements. IC took the position that the establishment of the guaranteed extra board was authorized by the 1986 agreement and offered to arbitrate the following question:

 
Does the establishment of Engineers' Guaranteed Extra Boards under the provision of the May 19, 1986 National Agreement with the Brotherhood of Locomotive Engineers violate the January 27, 1960 Tri-Party Agreement?

 (IC 12(M) Stmt. P6). UTU declined to arbitrate, instead filing suit in the Southern District of Illinois asserting that the matter was a "major dispute" in that the proposed implementation of guaranteed extra boards changed the working conditions of the firemen under the 1960 agreements. On November 1, 1988, Judge Stiehl refused to grant an injunction, ruling that the dispute between the parties was a "minor dispute" and therefore subject to the exclusive jurisdiction of the National Railway Adjustment Board (Adjustment Board). UTU v. ICGRC, No. 87-C-3845 at 16.

 On December 2, 1988, UTU requested IC to agree to establish a "Public Law Board" to address the dispute. The question which UTU proposed to be arbitrated was:

 
Does the Illinois Central Railroad and the Brotherhood of Locomotive engineers have the right to change the mileage regulation of the Engineers' Extra Boards, as set forth in the January 27, 1960 Tri-Party Agreement, without the concurance [sic] of the United Transportation Union?

 (BLE 12(M) Stmt. P18). The arbitration agreement prepared by UTU and signed by IC required PLB 4685 to "make findings of fact and render an award on each case submitted to it, within ninety (90) days, if possible, after the close of the hearing of each case."

 IC rejected UTU's request to establish the PLB, arguing that it had not changed the 1960 agreements because, to the extent that "mileage" boards were maintained, IC would continue to regulate them according to the 1960 rules. It was only where "guaranteed" boards were established that the 1960 agreements would not be utilized. As IC and UTU were unable to resolve what question was to be arbitrated, on March 9, 1989 UTU invoked the involuntary arbitration procedures of the Railway Labor Act. On April 10, 1989, the National Mediation Board established PLB No. 4685 and appointed a member to represent IC, a member to represent UTU, and a neutral, Richard R. Kasher (Kasher). A hearing was held on November 29, 1989, where the PLB addressed the question posed by UTU. At the hearing, BLE was given an opportunity to present its version of the case. *fn1"

 On April 24, 1995, a decision was circulated by neutral Kasher, stating, inter alia, that the "issue is resolved in accordance with the position advocated by the UTU." The parties dispute whether UTU attempted to seek IC's voluntary compliance with the award before filing this federal lawsuit. On March 27, 1997, UTU filed the instant petition seeking enforcement of the PLB's award.

 IC has now established guaranteed extra boards at all locations where it previously maintained unpaid mileage extra boards. Almost all firemen positions were terminated during the late 1980s, and since the early 1990s IC has not had any firemen positions. As a result, there is no longer an "ebb and flow" of locomotive workers between assignments as engineers and firemen.

 On cross-motions for summary judgment, each movant must individually satisfy the requirements of Rule 56. Proviso Association of Retarded Citizens v. Village of Westchester, 914 F. Supp. 1555, 1560 (N.D.Ill.1996); Chicago Truck Drivers, Helpers and Warehouse Workers Union (Ind.) Pension Fund v. Kelly, 1996 U.S. Dist. LEXIS 12901, 1996 WL 507258, *3 (N.D.Ill.1996). The traditional standards for summary judgment still apply even though both parties have moved for summary judgment. Blum v. Fisher and Fisher, Attorneys at Law, 961 F. Supp. 1218, 1222 (N.D.Ill.1997). The court thus considers the merits of each cross-motion separately and draws all reasonable inferences and resolves all factual uncertainties against the party whose motion is under consideration. Chicago Truck Drivers, 1996 WL 507258 at *3.

 Before we address the substance of the issues involved here, it is important to be clear about what is at stake. As stated above, in 1985 UTU and IC agreed to the elimination of the craft of firemen through attrition. Thus, at some point in time after 1985, it seems that IC would have been free to create the guaranteed extra boards since the class of firemen would have ceased to exist. What UTU now contends is that the 1986 agreement creating the guaranteed boards accelerated the time-frame for eliminating firemen in violation of both the 1960 agreement on mileage extra boards and the 1985 attrition agreement. It did so by overstaffing the guaranteed boards with firemen who received engineer wages. Those on the boards could not flow back down to the ranks of firemen ...


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