Brotherhood of Locomotive Engineers and Trainmen (General Committee of Adjustment, Central Region) et al v. Union Pacific Railroad Co.

Filing 35

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, Defendant's motion to dismiss for lack of subject matter jurisdiction 16 is granted. Plaintiff's motion for preliminary injunction 24 is denied. An AO-450 judgment shall be entered. Status hearing of 03/21/2017 is vacated. Civil case terminated. Emailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BROTHERHOOD OF LOCOMOTIVE
ENGINEERS AND TRAINMEN
(GENERAL COMMITTEE OF
ADJUSTMENT, CENTRAL
REGION), et al.,
Plaintiffs,
v.
UNION PACIFIC RAILROAD CO.,
Defendant.

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No. 16 C 2730
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Three divisions of the Brotherhood of Locomotive Engineers and Trainmen, a
union of trade engineers, brought this action against Union Pacific Railroad for
violations of the Railway Labor Act, 45 U.S.C. § 151, et seq. R. 4, Compl.1 The
Brotherhood claims that Union Pacific, which employs Brotherhood members,
violated the Act when the railroad implemented a new disciplinary policy—one that
allegedly conflicts with the parties’ collective bargaining agreements—without first
bargaining to impasse. Id. ¶¶ 2-3. The Brotherhood also claims that Union Pacific
violated the Act’s prohibition on direct dealing by soliciting employee input before
implementing the new policy. Id. ¶¶ 7, 45.
The parties have filed dueling motions: the Brotherhood seeks a preliminary
injunction against the implementation of the new disciplinary policy, R. 24, Pl.’s
1Citations

to the docket are indicated by “R.” followed by the docket entry and, when
necessary, a page or paragraph number.

Mot. for Prelim. Inj., and Union Pacific seeks dismissal of the Complaint for lack of
subject-matter jurisdiction and also asks for judgment on the pleadings, R. 16, Def.’s
Mot. to Dismiss. For the reasons discussed below, the motion to dismiss is granted
(though not on all the grounds sought by the railroad) and the motion for
preliminary injunction is denied.
I. Background
For the purposes of the motion to dismiss, the facts alleged in the Complaint
are accepted as true. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Union Pacific is a
Class I Rail Carrier, Compl. ¶ 9, and is subject to the Railway Labor Act, see 45
U.S.C. § 151. It employs locomotive engineers who are unionized under various
divisions of the Brotherhood. Compl. ¶ 8. The Brotherhood and Union Pacific (or
their various predecessors-in-interest) have entered into a number of collective
bargaining agreements over the years. Id. ¶¶ 12, 27; R. 17-1, Phillips Aff. ¶¶ 4-6; see
also R. 4-2, Compl. at Exh. B, 1996 Sys. Agmt.; R. 17-21, Phillips Aff. at Exh. T, S.
Pac. W. Lines Agmt.
One of those agreements, the Southern Pacific Western Lines Agreement,2
contains a provision that addresses how long employee-disciplinary information can
be kept in employee files:

2This

agreement does not extend to all Union Pacific engineers. Because it was made
between the Brotherhood and a southwestern railroad that later merged into Union Pacific,
the agreement is limited in geographic scope to the former lines of the southwestern
railroad. Phillips Aff. ¶ 6. However, this limitation is not relevant to the Court’s legal
analysis.

2

Information concerning discipline more than five (5) years old contained in
personal records will be expunged with the exception of suspension or
dismissal involving violations of [Federal Railroad Administration]
regulations or Safety Rules, which were upheld in arbitration.
S. Pac. W. Lines Agmt. at 191 (the parties refer to this clause as “Article 18”). As its
text says, Article 18 sets a general ban on keeping disciplinary records for longer
than five years, but with an exception for violations of Federal Railroad
Administration regulations and safety rules.
In September 2015, Union Pacific issued a policy entitled Managing
Agreement Professionals for Success (known by its acronym, “MAPS”). Compl. ¶ 16;
R. 4-1, Compl. at Exh. A, MAPS Policy. Before issuing the policy, the railroad had
polled its engineers on their preferred changes to existing discipline rules. Compl.
¶ 45. MAPS covers a number of human-resources-related topics, but this lawsuit
centers around Section 3.2.1, a disciplinary rule that adopts a “three-strikes”
approach for Federal Railroad Administration decertifications:
3.2.1. Multiple FRA Revocations: If an employee violates a decertification
rule and there are two prior FRA license revocations on the employee’s work
history … the employee may be charged with violation of Rule 1.6 [governing
prohibited conduct] under MAPS after evaluation of the employee’s work
history by the Superintendent and the Regional Vice President.
MAPS Policy at 4. In a nutshell, when an engineer picks up a third Federal
Railroad Administration license revocation, he or she is also subject to being fired.
Compl. ¶ 28.
MAPS went into effect without any negotiation between Union Pacific and
the Brotherhood. Compl. ¶ 30. The Brotherhood quickly protested, but Union Pacific
3

asserted its right to implement MAPS without consulting the Brotherhood first. Id.
¶¶ 31-33. This lawsuit followed.
II. Legal Standard
Union Pacific brings its motion to dismiss under Federal Rules of Civil
Procedure 12(b)(1) and 12(c). A Rule 12(b)(1) motion tests whether the Court has
subject-matter jurisdiction, Hallinan v. Fraternal Order of Police of Chi. Lodge No.
7, 570 F.3d 811, 820 (7th Cir. 2009); Long v. Shorebank Dev. Corp., 182 F.3d 548,
554 (7th Cir. 1999), while a Rule 12(c) motion tests the sufficiency of the plaintiff’s
claim for relief based on the pleadings, Hayes v. City of Chi., 670 F.3d 810, 813 (7th
Cir. 2012). When reviewing a motion for judgment on the pleadings, the Court
accepts as true all factual allegations in the complaint and draws all reasonable
inferences in the plaintiff’s favor. Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995);
Hayes, 670 F.3d at 813. A party may move for judgment on the pleadings after the
pleadings are closed. Fed. R. Civ. P. 12(c). A motion for judgment on the pleadings is
subject to the same standard as a motion to dismiss under Rule 12(b)(6). Hayes, 670
F.3d at 813. Judgment on the pleadings is proper if it appears beyond doubt that
the non-moving party cannot prove any set of facts sufficient to support his claim
for relief. Id. In ruling on a motion for judgment on the pleadings, the Court
considers the pleadings alone, which consist of the complaint, the answer, and any
documents attached as exhibits. N. Ind. Gun & Outdoor Shows, Inc. v. City of South
Bend, 163 F.3d 449, 452 (7th Cir. 1998).

4

In order to survive a Rule 12(b)(1) motion, the plaintiff must establish that
the district court has jurisdiction over an action. United Phosphorous, Ltd. v. Angus
Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003), overruled on other grounds by MinnChem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012). “If subject matter
jurisdiction is not evident on the face of the complaint, [then] the … Rule 12(b)(1)
[motion is] analyzed [like] any other motion to dismiss, by assuming for the
purposes of the motion that the allegations in the complaint are true.” United
Phosphorus, 322 F.3d at 946. But “if the complaint is formally sufficient but the
contention is that there is in fact no subject matter jurisdiction, [then] the movant
may use affidavits and other material to support the motion.” Id. (emphasis in
original).
III. Analysis
A. Count 1: Major or Minor Dispute
If Union Pacific’s motion to dismiss is a winner, then by definition the
Brotherhood’s preliminary-injunction motion must fail, so the Court will consider
the dismissal motion first. To do that, some background on the Railway Labor Act’s
analytical framework is needed. The Act governs railway-labor relations and
requires carriers to “exert every reasonable effort to make and maintain [collective
bargaining] agreements concerning rates of pay, rules, and working conditions.” 45
U.S.C. § 152 ¶ First. When a dispute arises between carrier and labor, courts must
first figure out whether the dispute is “major” or “minor” (those are terms of art
under the case law interpreting the Act). Consol. Rail Corp. v. Ry. Labor Execs.’
5

Ass’n, 491 U.S. 299, 302 (1989) (citation omitted). The resulting categorization
determines whether the district court has jurisdiction over the dispute: yes if major,
no if minor.3
Major disputes are those that involve the formation of collective bargaining
agreements or efforts to change existing agreements. Consol. Rail, 491 U.S. at 302
(citing Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 723 (1945)); see also 45 U.S.C.
§ 152 ¶ Seventh. One way to think about major disputes is that “[t]hey look to the
acquisition of rights for the future, not to assertion of rights claimed to have vested
in the past.” Id. If a collective bargaining agreement is already in place, then
carriers cannot “change the rates of pay, rules, or working conditions … embodied in
[the] agreements except in the manner prescribed in such agreements or” through
the negotiation and mediation procedures set forth in the Act. Id. “The district
courts have subject-matter jurisdiction to enjoin a violation of the status quo
pending completion of the required procedures … .” Consol. Rail, 491 U.S. at 303
(citations omitted).
In contrast, district courts do not have jurisdiction over minor disputes,
which must be worked out in “arbitration before the National Railroad Adjustment
Board, or before an adjustment board established by the employer and the unions
representing the employees.” Consol. Rail, 491 U.S. at 303 (citing 45 U.S.C. § 153).
Minor disputes are those that “grow … out of grievances or out of the interpretation
3Although

prior decisions inaccurately used the term “lack of jurisdiction” to describe
what really were merits decisions, Union Pacific’s argument here really is about subjectmatter jurisdiction, that is, whether this Court has the authority to adjudicate the parties’
dispute.

6

or application” of existing collective bargaining agreements. Id. (citing 45 U.S.C.
§ 152 ¶ Sixth). Unlike in major disputes, the carrier does not have a statutory
obligation to maintain the status quo while a minor dispute is before the arbitral
panel; it is generally free to act in accordance with its understanding of its rights
under the agreement unless and until the arbitral board decides otherwise. Consol.
Rail, 491 U.S. at 304 (citations omitted).
So, in order to decide the parties’ dueling motions here, the Court must
classify the parties’ dispute as either a major or minor one. There is an overall
preference for arbitral decision-making in this railway-labor context: if a party
asserts that the dispute is minor, and that assertion is “neither obviously
insubstantial or frivolous, nor made in bad faith,” then the Court must characterize
the dispute as minor and let the matter go to arbitration. Consol. Rail, 491 U.S. at
310. Here, if Union Pacific can advance a non-frivolous argument that the collective
bargaining agreements do not bar it from rolling out the three-strikes disciplinary
policy without bargaining over the policy, then the disputes arising out of that
decision would fall outside this Court’s jurisdiction. See id.
Union Pacific has met the standard. The railroad offers the affidavit of its
General Director of Labor Relations, Michael Phillips, who avers that the railroad
has an established practice of changing disciplinary policies without bargaining
with the Brotherhood. R. 17, Def.’s Br. at 2; Phillips Aff. ¶ 10.; see also R. 17-12,
UPGRADE Correspondence. The railroad also points out that there is no particular
provision of any collective bargaining agreement that bans Union Pacific from

7

implementing the three-strikes disciplinary policy. The absence of a ban is
important because it allows the past practice to create an implied agreement
between the railroad and labor. Collective bargaining agreements are “not []
ordinary contract[s],” but rather “generalized code[s] to govern a myriad of cases
which the draftsmen cannot wholly anticipate.” Consol. Rail, 491 U.S. at 311-12.
The Railway Labor Act does not require these agreements to represent a “meeting
of the minds” as to “all the details of particular practices” for the agreements to
justify those practices. Id. at 317-318. Instead, agreements may “include implied, as
well as express, terms.”4 Consol. Rail, 491 U.S. at 311. These implied terms are

4In

its brief, Union Pacific impliedly argues that the absence of an express
prohibition against unilateral implementation of disciplinary policies is enough to qualify
this as a minor dispute. Def.’s Br. at 10-11. The railroad cites three cases in support of this
argument. See id. Two of those cases could be construed to support Union Pacific, but they
were decided by other circuits. See Airline Profess. Ass’n v. ABX Air, Inc., 400 F.3d 411, 416
(6th Cir. 2005) (holding that, because “the [collective bargaining agreement] is silent as to
ABX’s prerogative to require [employee] to submit to an [independent medical examination]
… this dispute is a minor one,” unless the agreement or the law otherwise prohibits ABX’s
conduct); Empresa Ecuatoriana De Aviacion, S.A. v. Dist. Lodge No. 100, 690 F.2d 838, 843
(11th Cir. 1982) (“Accepting the union’s contention—that assertions by the airline of a
managerial power not included within the bargaining agreement is an effort to amend the
agreement to give management that power—would convert many minor disputes into major
disputes and alter the basic dichotomy of the [Railway Labor] Act.”).
The third—the only Seventh Circuit case cited—comes out differently. See Chi. &
N.W. Transp. Co. v. Ry. Labor Execs. Ass’n, 908 F.2d 144 (7th Cir. 1990). Union Pacific
relies on that case for the proposition that, “where [a] collective bargaining agreement is
silent on [a] disputed point, [the] dispute is minor,” Def.’s Br. at 11, but that overstates the
holding of Chicago & North Western Transportation. The case involved a dispute over a
railroad’s right to sell an unprofitable line. 908 F.2d at 147. By selling the line, rather than
abandoning it as the railroad had done in the past, the railroad freed itself from the duty to
provide adversely affected workers with certain protections, such as generous severance
pay. Id. Nothing in the parties’ collective bargaining agreements explicitly forbade the
railroad to sell the line. Id. at 151. But the unions argued that the decision to sell rather
than abandon the line constituted a “change in agreements affecting rates of pay, rules, or
working conditions” and therefore could only be undertaken after negotiation with the
union. Id. at 147.

8

established by looking at evidence of past “practice, usage and custom”—that is, if a
carrier has long behaved in a certain way, then that behavior will be read into the
collective bargaining agreement as a permitted practice under the implied terms of
the agreement. Bhd. of Maint. of Way Employees v. Atchison, Topeka & Santa Fe
Ry. Co., 138 F.3d 635, 641 (7th Cir. 1997) (citations and internal quotations
omitted). Indeed, the seminal Supreme Court case on this issue presented just that
type of implied term, arising from an employer’s past practice. Consol. Rail, 491
U.S. at 320 (holding that carrier’s unilateral implementation of a drug-screening
policy was arguably justified because the carrier’s long-term practice of conducting
physical examinations on employees established that practice as an implied term of
the collective bargaining agreement). So, in the absence of an explicit ban in the
collective bargaining agreements on implementing a disciplinary policy like MAPS,
and combined with the arguable past practice proffered by Union Pacific, this
dispute is minor and this Court lacks jurisdiction.

Although the Seventh Circuit held that negotiation was not required, its decision did
not rest solely on the agreement’s silence as to the carrier’s right to sell. Id. at 151-152.
Instead, the court stressed that the decision to sell the line fell within the carrier’s
“management prerogatives, the class of decisions that are not decisions about rates of pay,
rules, or working conditions.” Id. at 151 (citation omitted). Management-prerogative
matters include “executive perks, recapitalization, rates charged shippers, and other
matters that are only indirectly—though often vitally—related to the status of the workers
represented by the union.” Id. at 152. This the Seventh Circuit contrasted with “decision[s]
about the utilization of labor or about wages, work rules, working conditions, job rights,
etc.” Id. So Chicago & North Western Transportation does not go so far as to hold that
contractual silence alone compels the classification of a dispute as minor. Instead, the Court
must consider the employer’s established practices, determine “whether [those practices]
constitute an implied condition of the working relationship of the parties,” Ry. Labor Execs.
Ass’n v. Norfolk & W. Ry. Co., 659 F. Supp. 325, 330 (N.D. Ill. 1987) (citing Detroit & Toledo
Shore Line R.R. v. United Transp. Union, 396 U.S. 142, 153-54 (1969)), and only then
determine whether the disputed actions constitute a major or minor dispute, id.

9

So far, so good for Union Pacific. But against this, the Brotherhood offers two
counter-arguments, one based on a factual dispute and the other on legal
interpretation. First, the Brotherhood challenges Union Pacific’s factual contention
that the carrier has a practice of unilaterally implementing disciplinary policies. See
R. 25, Pl.’s Resp. Br. at 3-5. To the contrary, the Brotherhood asserts, the union and
railroad “have continuously bargained over discipline.” Id. at 8; see also R. 25-1,
Hannah Aff. ¶¶ 24-35, 39-41; R. 25-2, Bagby Aff. ¶¶ 5-14. Given its history of
negotiation, says the Brotherhood, Union Pacific cannot now claim that it has an
implied contractual right to take unilateral action. Pl.’s Resp. Br. at 3-5.
But the resolution of the competing factual positions belongs in arbitration.
In order to classify the parties’ dispute as a minor one, Union Pacific does not need
to prove a practice of unilateral disciplinary policy implementation. It only needs to
articulate an argument that is “neither obviously insubstantial or frivolous, nor
made in bad faith.” See Consol. Rail, 491 U.S. at 310. That it has done. Union
Pacific has provided evidence in the form of the affidavit from its General Director
of Labor Relations, as well as records of prior disciplinary policies that were
avowedly implemented without bargaining. See Phillips Aff. ¶ 10 (“Union Pacific
instituted its “UPGRADE” discipline policy—the predecessor to MAPS—and
subsequently modified it on multiple occasions, without any bargaining with the
unions over it.”); UPGRADE Correspondence (correspondence between the
Brotherhood

and

Union

Pacific

concerning

10

Union

Pacific’s

unilateral

implementation of UPGRADE). That evidence clears the low bar of establishing
non-frivolousness. So the Brotherhood’s first counter-argument fails.
The Brotherhood’s second argument is that MAPS is not “arguably”
permitted by existing collective bargaining agreements because it directly
contradicts one of those agreements. Pl.’s Resp. Br. at 6-7. Specifically, the
Brotherhood claims that Section 3.2.1 of MAPS conflicts with Article 18 of the
Southern Pacific Western Lines Agreement (a collective bargaining agreement
between the Brotherhood and one of Union Pacific’s predecessors-in-interest).5 Id.
Remember that Article 18 contains a five-year expungement for discipline, but with
an important exception:
Information concerning discipline more than five (5) years old contained in
personal records will be expunged with the exception of suspension or
dismissal involving violations of [Federal Railroad Administration]
regulations or Safety Rules, which were upheld in arbitration.
S. Pac. W. Lines Agmt. at 191. The Brotherhood interprets this to mean that Union
Pacific can only track an engineer’s license revocations for a five-year retention
period; after that, any mention of the revocation must be expunged from the
engineer’s record. Compl. ¶¶ 25-26.
MAPS, on the other hand, adopts a “three-strikes” approach towards Federal
Railroad Administration decertifications, with no five-year limitation. Under that
policy, Union Pacific has the right to discipline and even fire an engineer for
5In

the Complaint, the Brotherhood alleged that MAPS also violated the 1996
System Agreement, another collective bargaining agreement. See Compl. ¶¶ 12-22. The
parties have since resolved that dispute, so the Court need not address it. See Pl.’s Resp. Br.
at 5.

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“violating a decertification rule” if there are “two prior FRA license revocations in
the employee’s work history.” MAPS Policy at 4; Compl. ¶ 28. So, as written, MAPS
makes no distinction between license revocations within the past five years and
those incurred more than five years ago. Id. The Brotherhood posits that, because
MAPS allows Union Pacific to consider license revocations outside of the Article 18
retention period, the new policy directly contradicts a collective bargaining
agreement and constitutes a change in working conditions—making this a major
dispute.
But Article 18 and Section 3.2.1 of MAPS can be reasonably read so that they
are not in conflict. At the very least, Union Pacific has plausibly interpreted the
provisions that way. Under Article 18, the carrier only promises to expunge
“information concerning discipline more than five” years old from personal records.
See S. Pac. W. Lines Agmt. at 191 (emphasis added). But a license revocation is
arguably distinct from mere discipline. Although the carrier, rather than a federal
agency, is responsible for issuing and revoking licenses, see 49 C.F.R. § 240.101, the
criteria and procedures for revocation are set by federal regulation, see 49 C.F.R.
§ 240.307(a) (“[A] railroad that … acquires information regarding violations of
§ 240.117(e) or § 240.119(c) of this chapter, which convinces the railroad that the
person no longer meets the qualifications of this part, shall revoke the person’s
certificate as a qualified locomotive engineer.”).
And even if license revocations inarguably fell under the definition of
“discipline,” Union Pacific contends that Article 18 contains a specific carve-out for

12

license revocations, because it exempts information about “suspension[s] or
dismissal[s] involving violations of [Federal Railroad Administration] regulations or
Safety Rules, which were upheld in arbitration” from expungement. S. Pac. W.
Lines Agmt. at 191. There is some ambiguity as to what term the last clause—
“which were upheld in arbitration”—modifies. Does it modify both of the types of
“suspension[s]

or

dismissal[s],”

that

is,

violations

of

Federal

Railroad

Administration regulations and violations of Safety Rules? If so, then the carve-out
would apply only to license revocations that have been “upheld in arbitration.” Or
does “upheld in arbitration” only apply to violations of “Safety Rules”? If so, then
the exemption applies to all license revocations, even if not “upheld in arbitration.”
On the one hand, a strict-grammar reading would suggest that “upheld in
arbitration” modifies all “suspension[s] or dismissal[s],” because that is what gets
upheld (or rejected) in arbitration—suspensions or dismissals. It does not make
sense to speak of “violations” being “upheld” in arbitration. On the other hand,
Union Pacific makes a good point when it argues that “suspension[s] or dismissal[s]
involving violations of Federal Railroad Administration regulations” cannot be
“upheld in arbitration,” because they are subject to review only by the Locomotive
Engineer Review Board and not by an arbitration board. 49 C.F.R. § 240.401; Smith
v. Federal R.R. Admin., 398 Fed. App’x 601, 602 (D.C. Cir. 2010). Applying “upheld
in arbitration” to violations of Federal Railroad Administration violations would
mean that those violations would never be covered by the exemption, which makes
no sense.

13

In any case, it is not necessary to choose one construction over the other in
this litigation. To repeat, in order to make this a “minor” dispute, Union Pacific
need only show that MAPS is arguably not in conflict with Article 18. In light of the
reasonableness of interpreting Article 18 the way that Union Pacific proposes—that
is, the “upheld in arbitration” requirement applies only to violations of Safety Rules,
and not to license revocations—Union Pacific’s proposal is not frivolous, so the
dispute is minor. There is no subject-matter jurisdiction over Count 1 of the
complaint.6
B. Count 2: Direct Dealing
In Count 2, the Brotherhood claims that Union Pacific violated the Railway
Labor Act’s ban against direct dealing when it polled engineers about their
preferences on changes in disciplinary policy. Compl. ¶¶ 44-45. The Brotherhood
argues that this violated the Railway Labor Act so egregiously that federal
jurisdiction is engaged. It is true that a “federal court may exercise jurisdiction over
violations of the Railway Labor Act without regard to the court’s characterization of
the dispute as major or minor.” Bhd. of Ry., Airline & S.S. Clerks, Freight Handlers,
Express & Station Emp. v. Atchison, Topeka & Santa Fe Ry., 847 F.2d 403, 408 (7th
The Brotherhood offers one other alleged source of conflict against the three-strikes
policy. Specifically, the union argues that there is a body of contracts between individual
engineers accused of misconduct and Union Pacific. In those contracts, the engineers agreed
to accept discipline and, in exchange, Union Pacific promised to retain records of their prior
decertifications for a shorter period than dictated by Article 18. See Pl.’s Resp. Br. at 7,
Hannah Aff. ¶¶ 17-20. But if the entire purpose of these contracts is to provide an
individualized resolution outside of the carrier’s general disciplinary policy, it should make
no difference whether that general policy is MAPS or Article 18. So the individual contracts
cannot be said to contradict MAPS, just as they did not contradict Article 18 (or whatever
general disciplinary policy was in place when the contracts were executed).
6

14

Cir. 1988). But that authority to exercise jurisdiction is “limited to exceptional
circumstances.” Id. Really there are only two instances where jurisdiction is
triggered: cases where extrajudicial dispute-resolution is unavailable or ineffective,
and cases where the employer evinces a “specific intent to weaken or destroy a
union.” Id. at 411.
The second category plainly does not apply here. The Brotherhood has not
alleged that the railroad was trying to weaken or destroy the union by
implementing the three-strikes policy. And it is not plausible that soliciting
employee preferences on a new disciplinary policy goes so far as to weaken or
destroy the Brotherhood.
As for the first category, that argument for jurisdiction is typically invoked
where the Act’s dispute-resolution framework does not work because the union
cannot represent the employees’ interests. Bhd. of Ry., Airline & S.S. Clerks, 847
F.2d at 409-411 (citing Conrad v. Delta Airlines, 494 F.2d 914 (7th Cir. 1974)
(employee discharged before union was certified); Burke v. Compania Mexicana de
Aviacion, 433 F.2d 1031 (9th Cir. 1970) (same); Brady v. Trans World Airlines, 401
F.2d 87 (3d Cir. 1969) (employee sued union along with employer)). That is not the
case here: the arbitration process is available to the Brotherhood for its challenge to
the three-strikes policy. See Bhd. of Ry., Airline & S.S. Clerks, 847 F.2d at 411
(holding that the administrative channels provided by the Railway Labor Act could
adequately address union’s direct-dealing claim). Maybe the Brotherhood will lose
in that process (maybe it already has), but arbitration is available, which is all that

15

is required. There is no subject-matter jurisdiction over Count 2 of the complaint
either.
IV. Conclusion
For the reasons stated above, Union Pacific’s motion to dismiss for lack of
jurisdiction, R. 16, is granted. The Court cannot exercise subject-matter jurisdiction
over either count of the Complaint, so both are dismissed under Federal Rule of
Civil Procedure 12(b)(1). (The Court need not decide any aspect of Union Pacific’s
motion as a motion for judgment on the pleadings.) In light of the dismissal, the
Brotherhood’s motion for preliminary injunction is denied. The status hearing of
March 21, 2017 is vacated.

ENTERED:

s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: February 17, 2017

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