Kansas City Southern Railway Co v. Brotherhood of Locomotive Engineers & Trainmen et al

Filing 29

MEMORANDUM ORDER denying 13 Motion for Status Quo Injunction; granting 14 Motion for Summary Judgment. Signed by Judge Elizabeth E Foote on 07/24/2013. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

KANSAS CITY SOUTHERN RAILWAY CO.

CIVIL ACTION NO. 13-838

VERSUS

JUDGE ELIZABETH ERNY FOOTE

BROTHERHOOD OF LOCOMOTIVE ENGINEERS
& TRAINMEN, ET AL.

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
In this labor dispute, the Kansas City Southern Railway Co. (“KCSR”) and two
unions, the Brotherhood of Locomotive Engineers & Trainmen and the United
Transportation Union (“the Unions”), are at odds over a decision by KCSR to install inward
facing video-cameras in its locomotive cabs. It is not for this Court to decide whether the
cameras will be permitted. However, this Court does have a say in the method by which
that question will be answered. The parties have filed cross-motions seeking a ruling on
whether their dispute is “major” or “minor” under the Railway Labor Act (“RLA”). 45 U.S.C.
§ 151 et seq. If the dispute is major—roughly speaking, a dispute over the creation of a
new contractual right—then the parties must bargain over the proposed modification to
the collective bargaining agreement (“CBA”). In the event the RLA’s dispute resolution
procedures fail, the parties may resort to economic force. If the dispute is minor—roughly,
a dispute over the proper interpretation of a CBA provision—then it will be resolved
through binding arbitration. For the following reasons, the Court finds that this dispute is

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minor, GRANTS KCSR’s Motion for Summary Judgment, and DENIES the Unions’ Motion
for Status Quo Injunction.
I.

Factual and Procedural Background
On April 24, 2013, KCSR notified representatives of the Unions that it would install

two new inward-facing cameras in all of its locomotive cabs. These cameras would be
used, in part, to help discipline employees. Unbeknownst to the Unions, KCSR had already
installed these cameras in the locomotives located in Mexico. KCSR stated that it had
arrived at its decision to install the cameras unilaterally and that it would not bargain over
it. [Record Document 13-1, p.8].

At the same time KCSR notified the Unions of its

intentions, it filed this suit seeking a declaratory judgment that any disputes “over the
pending installation and operation of inward-facing video cameras in locomotive cabs are
‘minor disputes’...” [Record Document 1, p.1].

Both parties agree that no written

agreement between the parties governs whether such cameras are permitted.
In its prayer for relief, KCSR requests a judgment declaring the following:
1)

any disputes with the Unions over KCSR’s right to install and use inwardfacing cameras in locomotive cabs is a “minor dispute” subject to handling
under Section 3 of the RLA, 45 U.S.C. § 153; and

2)

any use of self-help by the Unions over installation or use of inward-facing
cameras, in derogation of the mandatory dispute resolution procedures of
Section 3 of the RLA, would be unlawful.

[Record Document 1, pp.12-13]

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The parties have now filed cross-motions—KCSR for summary judgment and the Unions
for a preliminary status quo injunction. Both motions frame the issue before the Court as
whether this dispute is major or minor under the RLA. 45 U.S.C. § 151 et seq. KCSR’s
motion advances two arguments:
1)

Numerous decisions of the Adjustment Board hold that the railroad industry
is a “reserved rights industry,” meaning that in the absence of a restriction
negotiated by the union the carrier may alter working conditions unilaterally.1
It is thus arguable that KCSR has the contractual right to alter working
conditions in any way the CBA does not prohibit. None of the terms in the

In its briefing, KCSR occasionally uses the term “managerial prerogative” to
refer to the idea that rail carriers may modify working conditions as they please in the
absence of a restriction negotiated by the union. Counsel for KCSR clarified during oral
argument that by “managerial prerogative” he did not intend to invoke management’s
right to make decisions that lie at the core of entrepreneurial control of the business,
such as selling a rail line or setting executive compensation unilaterally. Counsel for
KCSR conceded at oral argument that the cameras proposed would change working
conditions, and thus do not fall within the core of entrpreneurial control of the business.
Judge Posner explained managerial prerogative as follows in Chicago & Nw. Transp. Co.
v. Ry. Labor Exec. Ass’n:
1

The two types of carrier's entitlement to act unilaterally—contractual and
prerogative—are not sharply distinct, if indeed they are distinct at all. A
matter of prerogative is one the carrier is not required to bargain over and
therefore is unlikely to surrender in bargaining, though nothing in the Act
forbids it to do so. If there has been no waiver of prerogative in the
collective bargaining agreement, then the union cannot insist that the
carrier bargain over prerogative matters, such as 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. The union's insistence on bargaining over such
matters confers no rights under section 6.
908 F.2d 144, 152 (7th Cir. 1990) (citations ommitted).
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CBA prohibits installation of the cameras. Therefore KCSR may install them;
and
2)

Even if KSCR has not reserved the right to install the cameras, an implied
agreement created by past practice arguably allows KCSR to install them.
KCSR cites the Unions’ consent to the following practices as evidence of an
informal agreement wherein the Unions’ employees agree be monitored by
KCSR:
•

use of stationary surveillance cameras in various train yards and other
locations around the KCSR system;

•

use of inward-facing cameras in crew vans that transport KCSR crews
to and from train assignments;

•

implementation of procedures for monitoring and recording phone
calls between train crew employees and crew management when
crew management calls an employee and advises him or her when to
report to staff a particular train;

•

operational testing of train crews without prior notice, including
“check rides” and unannounced observation by supervisors; and

•

downloading and reviewing data from locomotive monitoring devices,
including event recorders and “wi-tronix,” for the purpose of
assessing train crew rules compliance and train handling skills.2

If either of these arguments prevails, then the dispute turns on the interpretation of the
parties’ existing agreement; and thus this dispute would be classified as a minor dispute
over which the arbitration board has exclusive jurisdiction.

The wi-tronix system enables managers at the carrier’s headquarters to obtain
train data in realtime.
2

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The Unions counter the reserved-rights argument by noting that arbitration
decisions have no precedential value and that KCSR has presented no evidence that an
implied reserved-rights term is part of this particular CBA. Regarding KCSR’s second
argument, the Unions argue that the proposed cameras are so much more intrusive than
the monitoring practices cited by KCSR that those practices do not even arguably support
an implied agreement permitting installation of the cameras. Furthermore, the Unions note
that the following monitoring practices do not demonstrate the Unions’ consent to be
monitored because they are required by federal regulations:
•

observation of train crews by managers, required by 49 C.F.R. §§
240.129(e), 242.123, and 242.403(e)(6)-(11));

•

check rides, required by 49 C.F.R. § § 240.129(c), 240.123; and

•

installation of event records, required by 49 C.F.R. § § 240.129(c)(3).3

The dispute is therefore major, the Unions argue, because it cannot be resolved by
interpreting the agreements between the parties. Thus, the unilateral imposition of such
a change in working conditions without bargaining is prohibited by the RLA. 45 U.S.C. §
152 Seventh and 45 U.S.C. § 156. If the Unions’ argument is correct, KCSR must maintain
the status quo while the bargaining and the voluntary dispute resolution measures of the
RLA run their course. A preliminary injunction preserving the status quo, as authorized by
the RLA, is therefore appropriate, the Unions contend.

3

The wi-tronix realtime monitoring system is not required by federal regulations.
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II.

The Law
Summary judgment should be entered if the movant “shows that there is no

genuine dispute as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Whether a labor dispute is major or minor is a
question of law. CSX Transp., Inc. v. Bhd. of Maint. of Way Emp., 327 F.3d 1309, 1320
(11th Cir. 2003) (collecting cases). The Unions have pointed to no genuine disputes of fact
that are material to the question of whether this dispute is major or minor.
A principal aim of the RLA is to channel disputes through an “interminable” process
of conferences, meditation, and voluntary or compelled arbitration in order to avoid strikes.
45 U.S.C. § 151a; Detroit & Toledo Shore Line Ry. Co. v. United Transp. Union, 396 U.S.
142, 149 (1969) (“A final and crucial aspect of the Act was the power given to the parties
and to representatives of the public to make the exhaustion of the Act's remedies an
almost interminable process.”). In order to determine the proper channels through which
a dispute must travel, courts distinguish between major and minor disputes. Burlington
Northern R. Co. v. United Transp. Union, 862 F.2d 1266, 1271 n.4 (7th Cir. 1988). Major
disputes involve the creation or alteration of contractual rights and duties:
disputes over the formation of agreements or efforts to secure them. They arise
where there is no such agreement or where it is sought to change the terms of one,
and therefore the issue is not whether an existing agreement controls the
controversy. They look to the acquisition of rights for the future, not assertion of
rights claimed to have vested in the past.
Consol. Rail Co. v. Ry. Labor Exec. Ass’n, 491 U.S. 299, 302 (citing Elgin, J. & E.R. Co. v.
Burley, 325 U.S. 711, 723 (1945)).

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Minor disputes arise “out of grievances or out of the interpretation or application of
agreements concerning rates of pay, rules, or working conditions.” Major disputes must
pass first through conference, mediation, possibly voluntary arbitration, and a thirty day
cooling-off period before either party may resort to economic self-help. During this
protracted process both parties must maintain the status-quo, understood as the objective
working conditions that pertain to the dispute, whether or not those working conditions
are governed by the CBA. Consol. Rail, 491 U.S. at 302-03; Shore Line, 396 U.S. at 15253. Minor disputes are resolved through arbitration before the Adjustment Board. The
Adjustment Board enjoys exclusive jurisdiction over minor disputes. Id. at 303-04. Only in
exceptional circumstances, such as where “a disruption of the status quo would result in
irreparable injury of such magnitude that it would render any subsequent decision
meaningless” will a court require the carrier to maintain the status quo during arbitration
of a minor dispute. Int’l Bhd. of Teamsters v. Southwest Airlines Co., 875 F.2d 1129, 1136
(5th Cir. 1989).
The party who initiates the dispute can thus to a certain extent control whether it
is major or minor by choosing to characterize their action as either as an effort to change
a right created by the CBA or as an effort to enforce an existing right. Consol. Rail, 491
U.S. at 306. To prevent a party from unilaterally imposing new working conditions without
bargaining, in violation of 45 U.S.C. § 152 Seventh,4 by erroneously claiming an action
45 U.S.C. § 152, Seventh:
Change in pay, rules, or working conditions contrary to agreement or to section
156 forbidden
4

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prohibited by the CBA is actually permitted, the party proposing the change must make a
preliminary showing that the dispute is minor before a federal court determines that the
Adjustment Board has exclusive jurisdiction. Id. A dispute is minor if the proposed action
is arguably justified by the terms of the parties’ collective bargaining agreement and the
argument justifying the action under the CBA is neither frivolous nor obviously
insubstantial:
Where an employer asserts a contractual right to take the contested action, the
ensuing dispute is minor if the action is arguably justified by the terms of the
parties' collective bargaining agreement. Where, in contrast, the employer's
claims are frivolous or obviously insubstantial, the dispute is major.
Consol. Rail, 491 U.S. 299, 302-303 (1989). Thus, even a dispute concerning a
decision by the carrier that changes the working conditions of employees — that is, a
decision that would otherwise trigger the carrier’s duty to bargain under Section 152,
First — must be resolved by the Adjustment Board if the CBA arguably allows the
action.5

No carrier, its officers, or agents shall change the rates of pay, rules, or working
conditions of its employees, as a class, as embodied in agreements except in the
manner prescribed in such agreements or in section 156 of this title.
45 U.S.C. § 152, First reads:

5

“ Duty of carriers and employees to settle disputes
It shall be the duty of all carriers, their officers, agents, and employees to exert
every reasonable effort to make and maintain agreements concerning rates of
pay, rules, and working conditions, and to settle all disputes, whether arising out
of the application of such agreements or otherwise, in order to avoid any
interruption to commerce or to the operation of any carrier growing out of any
dispute between the carrier and the employees thereof.”
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It is well settled that the CBA does not only include the written agreements
between the parties, but also all implied terms created by the parties’ course of dealing:
[C]ollective-bargaining agreements may include implied, as well as express,
terms. Furthermore, it is well established that the parties' practice, usage and
custom is of significance in interpreting their agreement. This Court has
observed: A collective bargaining agreement is not an ordinary contract for the
purchase of goods and services, nor is it governed by the same old common-law
concepts which control such private contracts. ... [I]t is a generalized code to
govern a myriad of cases which the draftsmen cannot wholly anticipate.... The
collective agreement covers the whole employment relationship. It calls into
being a new common law-the common law of a particular industry or of a
particular plant.
Consol. Rail, 491 U.S. at 311-12 (citations and quotation marks omitted). Not all past
practices create implied obligations, only those accompanied by assurances of
continuation or that are likely to induce reliance. Chicago & Nw.Transp. Co., 908 F.2d at
154 (7th Cir. 1990) (“Practices accompanied by assurances of continuation, express or
implied but in either event likely to induce reliance, can create an implied obligation.”)
(collecting cases).
III.

Analysis
KCSR first argues that those arbitration decisions recognizing that the railroad

industry is a “reserved rights” industry show that it is at least arguable that KCSR has a
contractual right to alter working conditions in any way not prohibited by the CBA.6 A
handful of federal cases appear to have noted that rail carriers, at least arguably, retain
the right to do whatever the CBA does not forbid. Chicago & Nw.Transp. Co., 908 F.2d
These arbitration decisions are found in footnote 6 at page 9 of Kansas City’s
Memorandum in Support of its Motion for Summary Judgment [Record Document 14-1,
p.9 n.6].
6

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at 155 (“what the agreements do not expressly or implicitly forbid they permit”);
Airline Professionals Ass'n v. ABX Air, Inc., 274 F.3d 1023, 1029 (6th Cir. 2001) (citing
Appalachian Reg’l Healthcare, Inc. v. United Steelworkers of Am., 245 F.3d 601, 606
(6th Cir. 2001) (“The Agreement need not include provisions permitting management
action on every conceivable employment matter; rather, on issues not discussed in the
Agreement, management retains discretion.”). KCSR has not presented any evidence
apart from the fact that it is a railroad that this particular CBA contains an implied
managerial rights term.
The Court is reluctant to hold that adjustment board decisions interpreting the
CBAs of other unions and other carriers make it arguable that this rail carrier may
unilaterally change working conditions that are unregulated by the CBA. As noted by
Judge Easterbrook in a case distinguishing between enforcement and interpretation of
an Adjustment Board award, “equating arbitration with a common-law system of
adjudication is hazardous.” Bhd. of Maint. of Way Emp. v. Burlington N. Ry. Co., 24
F.3d 937, 939 (7th Cir. 1994). Whereas common-law courts typically “enforce the
minor premises contained in opinions from the same or a higher level of our
hierarchical judiciary,” arbitrators bear a closer resemblance to civil law courts, whose
judgments do not have stare decisis effect. Id. Furthermore, as counsel for KCSR
conceded during oral argument, the arbitration decisions and circuit cases cited by
KCSR do not always distinguish carefully between the concepts of “retained rights,” as

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understood by KCSR, and managerial prerogative, meaning those decisions over which
KCSR need not bargain.
In any case, the Court need not resolve the complex issues posed by KCSR’s first
argument because it is arguable that the implied agreements between the parties
concerning monitoring allow the installation of the cameras. Not considering, for the
sake of argument, the check-rides and event-recordings, which are mandated by
federal regulations, KCSR cites the following employee monitoring practices:
•

use of stationary surveillance cameras in various train yards and
other locations around the KCSR system;

•

use of inward-facing cameras in crew vans that transport KCSR
crews to and from train assignments;

•

implementation of procedures for monitoring and recording phone
calls between train crew employees and crew management when
crew management calls an employee and advises him or her when
to report to staff a particular train;

The Unions do not dispute that they have consented to these practices and that they
form part of their implied agreements with KCSR. Instead, the Unions distinguish each
past practice in order to show that the proposed monitoring is unprecedentedly
intrusive:
Radio conversations between crews and train dispatchers are simply part of the
locomotive operating process; a train cannot move without conversations in
which dispatchers convey authority for movements... Cameras in front of
locomotives record what a locomotive confronts along the way; they are not
employee surveillance devices. Stationary pole-mounted cameras randomly put
up around yards or trackside are not employee-monitoring systems; they are
security systems which only incidentally might be used to monitor employees...
Finally, to suggest that recording phone calls in which management tells train

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crews who are off from work when to report to work is analogous to in-cab video
surveillance borders on the absurd.
[Record Document 13-1, p.18].
While the burden on the carrier to show that its right to act is arguably justified
by past practices is light, it is not non-existent. If a carrier were to cite past practices
that were so far removed in magnitude and nature from the decision at issue as to
make the carrier’s justification obviously insubstantial, then the carrier would not have
met its burden. The Court, however, is not faced now with such a situation. It is clear
that the Unions have consented to some monitoring. What is not clear is whether they
have consented to monitoring directed at them 24/7. KCSR has advanced the argument
that by not voicing any objection to the stationary pole-mounted cameras in the yards,
the recording of employee phone calls, and the use of inward-facing cameras in the
vans that transport KCSR crews to and from train assignments, the Unions have agreed
to be monitored to the extent reasonably necessary to meet the safety challenges faced
by KCSR. This argument is not frivolous. Neither is it frivolous to argue that the safety
challenges posed by employees using personal electronic devices on the job
necessitates the camera and review system proposed by KCSR. At the end of the day,
the Unions may prevail regarding their interpretation of the CBA. KCSR’s argument,
however, is not “obviously insubstantial,” and thus the dispute is minor.
The Court is not persuaded that a status quo injunction should be entered while
this dispute proceeds through arbitration. The Fifth Circuit has held that the “proper
grounds for granting an injunction against action that is the subject matter of a minor
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dispute under the RLA are extremely narrow.” Southwest Airlines Co., 875 F.2d at 1136.
The “speculative possibility” that an employee may suffer harm to their reputation from
being disciplined does not rise to the “magnitude required to support an injunction in
the context of a minor dispute.” Id. The Unions argue that the employee stress caused
by these cameras is an irreparable harm. In support, the Unions cite three studies
concluding that continuous monitoring induces stress in those monitored and reduces
their ability to perform their work.7 The Court finds that the risk that employees may
suffer stress because of these cameras is a speculative possibility that does not support
an injunction in this context. The harm posited by the Unions is not so irreparable that
it would render an arbitration decision in the Unions’ favor meaningless. Id. The use of
the cameras by KCSR during arbitration proceedings would in no way prevent a
decision by the Adjustment Board adverse to KCSR from taking effect. Furthermore,
both parties agreed at oral argument that in the event of an arbitration decision in the
Unions’ favor, any aggrieved employees could seek some form of monetary
compensation from their injuries. The Court will not, therefore, require KCSR to
maintain the status quo while this minor dispute runs its course.

Aiello, J.R., and Svec, C.M., Computer Monitoring of Work Performance:
Extending the Social Facilitation Framework to Electronic Presence, JOURNAL OF APPLIED
SOCIAL PSYCHOLOGY 23(7), 1993, at 537-548; Davison, Rick and Henderson, Ron,
7

Electronic Performance Monitoring: A Laboratory Investigation of the Influence of
Monitoring and Difficulty on Task Performance, Mood State, and Self-Reported Stress
Levels, JOURNAL OF APPLIED SOCIAL PSYCHOLOGY 30(5), 2000, at 906-920; Aiello, J.R., and
Kolb, K.J., Electronic Performance Monitoring and Social Context: Impact on
Productivity and Stress, JOURNAL OF APPLIED PSYCHOLOGY 80(3), 1995, at 339-353.
Page 13 of 14

IV.

Conclusion
For the foregoing reasons, the Court GRANTS KCSR’s Motion for Summary

Judgment [Record Document 14], and DENIES the Unions’ Motion for Status Quo
Injunction [Record Document 13].
THUS DONE AND SIGNED this 24th day of July, 2013.

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