BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION/IBT v. CONSOLIDATED RAIL CORPORATION
Filing
41
OPINION FILED. Signed by Judge Renee Marie Bumb on 6/6/11. (js)
FOR PUBLICATION
[Dkt. Ents. 28, 34]
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
BROTHERHOOD OF MAINTENANCE
:
OF WAY EMPLOYES DIVISION/IBT,
:
:
Plaintiff,
:
:
v.
:
:
CONSOLIDATED RAIL CORPORATION,
:
:
Defendant.
:
:
___________________________________:
APPEARANCES:
Matthew D. Areman, Esq.
Markowitz & Richman
1100 North American Building
121 South Broad Street
Philadelphia, Pennsylvania 19107
Attorney for Plaintiff
Kelly Lynn Bannister, Esq.
Buchanan Ingersoll & Rooney PC
Two Liberty Place
50 S. 16th Street, Suite 3200
Philadelphia, Pennsylvania 19102-2555
Attorney for Defendant
BUMB, UNITED STATES DISTRICT JUDGE:
1
Civil Action No.
10-925 (RMB/JS)
Member cases:
10-926
10-931
10-932
10-934
OPINION
This case comes before the Court for review of several
arbitration awards issued by the National Railroad Adjustment
Board ("NRAB" or the "Board"), involving disputes between
plaintiff Brotherhood of Maintenance of Way Employes Division/IBT
("BMWED" or the "Union") and defendant Consolidated Rail
Corporation ("Conrail").
The disputes arise from Conrail's use
of non-Union contractors to perform maintenance of way work at
various railroad yard locations in Michigan, Pennsylvania, and
New Jersey.
The NRAB dismissed the Union's claims for lack of
jurisdiction, finding that their resolution required
interpretation of an implementing agreement, which had been
mandated by the Surface Transportation Board ("STB") as part of a
prior merger.
BMWED appealed the Board’s decisions to this Court and now
moves for summary judgment, arguing that the Board had
jurisdiction over these claims and improperly refused to
adjudicate them.
It seeks an order from this Court, vacating and
remanding the awards to the NRAB for decision on their merits.
Conrail opposes this motion and filed a cross-motion for summary
judgment, arguing that the STB has exclusive jurisdiction over
these claims, and therefore, the NRAB properly dismissed them.
For the following reasons, the Court denies the Union's motion
and grants Conrail's cross-motion.
2
I. BACKGROUND
Defendant Conrail is a "carrier" as that term is defined in
the Railway Labor Act, 45 U.S.C. § 151 (2011).
(Def.'s Resp. to
Pl.'s Statement of Undisputed Material Facts ("SUMF") 8, Dkt.
Ent. 34-4.)
It conducts rail operations in New Jersey,
Pennsylvania, and Michigan.
(Id.)
employees are represented by BMWED.
Conrail's maintenance of way
They inspect, construct,
maintain, and repair certain track and other structures operated
by Conrail.
(Id. 7.)
The rates of pay, rules and working
conditions of these employees are governed by the terms of a
collective bargaining agreement ("CBA") between Conrail and the
Union.
(See Pl.'s SUMF 9.)
The CBA also includes what is known
as a "Scope Rule," which defines certain work as maintenance of
way work and places limitations on Conrail's ability to contract
out such work.
(See id. 10.)
On July 23, 1998, the STB approved the acquisition of
control of Conrail Inc. and Consolidated Rail Corporation by CSX
Corporation and CSX Transportation, Inc. ("CSX"), and Norfolk
Southern Corporation and Norfolk Southern Railway Company ("NS")
(the "Conrail Transaction").1
(Pl.'s Ex. 6; Def.'s Ex. A.)
In
approving the Conrail Transaction, the STB imposed labor-
1
The STB, formerly the Interstate Commerce Commission, is
responsible for approving various types of railroad transactions,
such as acquisitions and mergers. See 49 U.S.C. § 11323(a)
(2011).
3
protective conditions as prescribed by New York Dock Railway Control - Brooklyn Eastern District Terminal, 360 I.C.C. 60
(1979), aff'd, New York Dock Railway v. United States, 609 F.2d
83 (2d Cir. 1979) ("New York Dock").
These conditions, commonly
called the "New York Dock conditions," provide for, inter alia,
financial benefits for employees who suffer a loss of
compensation or employment as a result of an STB-approved
transaction.
Any disputes over claims for employee protective
displacement and dismissal benefits arising from such
transactions are resolved by STB arbitrators under the New York
Dock arbitration procedures set forth in § 4 of the New York Dock
conditions.
See also CSX Transp. v. Transp. Comm. Int'l Union,
480 F.3d 678, 680 (4th Cir. 2007).
Subsequent to approval of the Conrail Transaction, disputes
arose between BMWED and Conrail relating to employee pay and
benefits, including the extent to which Conrail would be
permitted to use outside contractors for maintenance of way work.
(Def.'s SUMF
5.)
Thus, pursuant to Article I, § 4 of New York
Dock, the parties submitted their disputes to a New York Dock
arbitrator acting under the authority of the STB.
(Pl.'s SUMF
15-16.)
On January 14, 1999, the New York Dock arbitrator issued his
ruling.
(See Pl.'s Exs. 7-8.)
The arbitrator ruled in relevant
part:
4
Restriction on contracting out, either through the
scope clause of a CBA or a specific prohibition
therein, is a common provision in railroad CBAs. . . .
However, the application of such restrictions in the
instant case would cause serious delay to
implementation of the transaction insofar as capital
improvements are concerned and would unduly burden
C[onrail] with an employee compliment it could not keep
working efficiently. Accordingly, elimination of those
restrictions meets the necessity test set forth by the
STB . . . .
(Pl.'s Ex. 7, at 14.)
The arbitrator concomitantly issued an
implementing agreement between Conrail, CSX, Norfolk Southern and
BMWED (the "Implementing Agreement").
(See Pl.'s Ex. 8.)
For
projects required for the initial construction and maintenance of
the newly formed rail system, Conrail was given the right to
contract out such work to non-Union employees without notice to
BMWED.
Specifically, the Implementing Agreement states:
Contractors may be used without notice to augment CSXT,
NSR, or [Conrail] forces as needed to perform
construction and rehabilitation projects such as
initial new construction of connection tracks, sidings,
mainline, yard tracks, new or expanded terminals and
crossing improvements[] initially required for
implementing the Operating Plan and to achieve the
benefits of the transaction as approved by the STB . .
. .
(Implementing Agreement art. I § 1(h), Pl.'s Ex. 8.)
The
Implementing Agreement also provided that since Conrail would no
longer have the "system support" it had had prior to the Conrail
Transaction, work that exceeded "routine maintenance" at certain
sites would be performed by CSXT or NSR in accordance with their
5
respective collective bargaining agreements.
(Implementing
Agreement art. I § 1(i)(5).)2
Subsequent to the Implementing Agreement, at various times
between 2000 and 2004, Conrail contracted out maintenance of way
work at the SAA's.
Pl.'s Ex. 6 at 31.)
(See Def.'s Ex. A at 228; Def.'s SUMF
11;
Conrail contended that the Implementing
Agreement permitted it to contract out such work.
BMWED,
however, challenged Conrail's decision to assign non-Union
contractors and filed grievances under the CBA.
In the
grievances, the Union challenged:
(1) Conrail's use of outside forces to perform new track
construction in the South Philadelphia SAA from October
30, 2000, through February 9, 2001 (Pl.'s Ex. 1, Award
No. 38988);
(2) Conrail's contracting out of various components of a
major project at the Detroit SAA, Livernois Yard, from
April to June 2004 (Pl.'s Exs. 2, 3, 5, Award Nos.
39877, 39878, 39880; Def.'s SUMF 17); and
(3) Conrail's contracting out of track relocation work at
the South Jersey SAA in December 2001 (Pl.'s Ex. 4,
Award No. 39879).
BMWED argued that this work was reserved for Conrail maintenance
of way employees, not outside forces, and that even if the work
could be contracted out, Conrail had failed to give the required
notice and to meet and negotiate in good faith.
19.)
(Pl.'s SUMF
Conrail responded that it had not violated the CBA.
2
It
These sites consist of three separate projects known as
Shared Asset Areas (“SAA’s”) in Michigan, Pennsylvania, and New
Jersey. (See Def.’s Ex. A at 228.)
6
argued that the terms of the Implementing Agreement permitted it
to contract out the work and to do so without notice, because
these projects were beyond routine maintenance and were initially
required to achieve the efficiencies of the Conrail Transaction.
(Def.'s SUMF
13-19.)
BMWED's claims (five in total) were referred to the Third
Division of the NRAB.3
The NRAB issued five separate awards,
dismissing BMWED's claims and concluding that the Board lacked
jurisdiction to consider disputes involving the interpretation of
the Implementing Agreement.
(Pl.'s Exs. 1-5.)
BMWED filed
petitions for review of each of these awards under the Railway
Labor Act, 45 U.S.C. § 153 First (q),4 which resulted in five
civil actions consolidated before this Court:
Award No. 38988, issued on March 27, 2008, involving the
South Philadelphia SAA (Pl.'s Ex. 1); petition for review
filed in Civil Action No. 10-925 (RMB);
Award No. 39877, issued on July 31, 2009, involving
Detroit's Livernois Yard (Pl.'s Ex. 2); petition for review
filed in Civil Action No. 10-926 (JBS);
3
The NRAB’s jurisdiction includes “disputes between an
employee or group of employees and a carrier or carriers growing
out of grievances or out of the interpretation or application of
agreements concerning rates of pay, rules, or working conditions
. . . .” See 45 U.S.C. § 153 First (i).
4
The Court ordered supplemental briefing to establish that
venue was proper, since Petitioner in the lead and member cases
had alleged venue only pursuant to 28 U.S.C. §§ 1391(b-c) and not
pursuant to the Railway Labor Act’s venue provision, 45 U.S.C. §§
153 (p-q) (2011).
[Dkt. Ent. 38.] Petitioner filed a letter
brief addressing this matter. The Court is now satisfied that
venue in this jurisdiction is proper. [Dkt. Ent. 40.]
7
Award No. 39878, issued on July 31, 2009, involving
Detroit's Livernois Yard (Pl.'s Ex. 3); petition for review
filed in Civil Action No. 10-931 (JEI);
Award No. 39879, issued on July 31, 2009, involving South
Jersey SAA (Pl.'s Ex. 4); petition for review filed in Civil
Action No. 10-932 (RBK); and
Award No. 39880, issued on July 31, 2009, involving
Detroit's Livernois Yard (Pl.'s Ex. 5); petition for review
filed in Civil Action No. 10-934 (NLH).5
BMWED now seeks an order vacating each Award and remanding them
to the NRAB for decision on their merits.
Conrail has
cross-moved for an order dismissing each of the appeals, arguing
that the NRAB and this Court lack jurisdiction to interpret the
terms of a New York Dock implementing agreement.6
5
On June 17, 2010, this Court entered an Order
consolidating all actions. [Dkt. Ent. 18.]
6
Conrail filed a reply to its cross-motion in violation of
Local Rule 7.1(d)(3), which provides that “[n]o reply papers
shall be filed . . . on a cross-motion, unless the Court
otherwise orders.” [Dkt. Ent. 39.] While the Court does not look
favorably on this failure to abide by the Local Rules, it
nevertheless exercises its discretion to grant permission to file
the reply nunc pro tunc, given the complexity and novelty of the
case, the fact that Conrail’s failure to seek permission was
likely an oversight, that BMWED did not object to it, and that
this Court would likely have granted permission if it had been
timely requested. See, e.g., McGarvey v. Penske Auto. Group,
Inc., Civ. Action No. 08-5610, 2010 WL 1379967, *9 (D.N.J. 2010)
(granting permission to file reply nunc pro tunc given complexity
and novelty of case, that failure to seek permission was an
oversight, and that request would have been granted if timely
made); Port Authority of NY & NJ v. Am. Stevedoring, Inc., Civ.
Action No. 09-4299, 2011 WL 1399079, *2 n.1 (D.N.J. 2011)
(despite plaintiff’s failure to timely seek leave to file reply,
court found “good cause to permit and consider [it], in order to
make its decision on the merits . . . rather than on mere
technicalities”).
8
I. STANDARD OF REVIEW
A. Summary Judgment
Summary judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).7
Fed. R. Civ.
A fact is “material” if it will “affect the outcome
of the suit under the governing law . . . .”
Lobby, Inc., 477 U.S. 242, 250 (1986).
Anderson v. Liberty
A dispute is “genuine” if
it could lead a “reasonable jury [to] return a verdict for the
nonmoving party.”
Id. at 250.
When deciding the existence of a genuine dispute of material
fact, a court’s role is not to weigh the evidence: all reasonable
“inferences, doubts, and issues of credibility should be resolved
against the moving party.”
Meyer v. Riegel Products Corp., 720
F.2d 303, 307 n.2 (3d Cir. 1983).
However, “a mere scintilla of
evidence,” without more, will not give rise to a genuine dispute
for trial.
Anderson, 477 U.S. at 249.
In the face of such
evidence, summary judgment is still appropriate “where the record
7
Amendments to the Federal Rules of Civil Procedure became
effective on December 1, 2010. The oft-cited summary judgment
standard is now located in Rule 56(a) rather than Rule 56(c).
Although the wording of the standard has changed slightly,
replacing the word “issue” with “dispute” (“The court shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact”), this change does not affect
the substantive standard or the applicability of prior decisions
construing the standard. Fed. R. Civ. P. 56(a) advisory
committee’s note (emphasis added).
9
. . . could not lead a rational trier of fact to find for the
nonmoving party . . . .”
Matsushita Elec. Indust. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-587 (1986).
“Summary judgment
motions thus require judges to ‘assess how one-sided evidence is,
or what a ‘fair-minded’ jury could ‘reasonably’ decide.’”
Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460 (3d
Cir. 1989) (quoting Anderson, 477 U.S. at 265).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P.
56(c)).
Then, “when a properly supported motion for summary
judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for trial.’”
Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P. 56(e)).
The
non-movant’s burden is rigorous: it “must point to concrete
evidence in the record”; mere allegations, conclusions,
conjecture, and speculation will not defeat summary judgment.
Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir.
1995).
B. Judicial Review of the Board’s Decisions
10
The Supreme Court has characterized the scope of judicial
review of NRAB awards as “among the narrowest known to the law.”
Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 91 (1978); Bhd. of
Maint. of Way Employees v. Consol. R. Corp., 864 F.2d 283, 287
(3d Cir. 1988).
The Supreme Court “time and again has emphasized
and re-emphasized that Congress intended minor grievances of
railroad workers to be decided finally by the Railroad Adjustment
Board.”
Gunther v. San Diego & Ariz. E. Ry. Co., 382 U.S. 257,
263 (1965).
Indeed, the RLA permits review of an NRAB award by
this Court in only three limited circumstances: (1) “failure of
the [NRAB] to comply with the requirements of the RLA”; (2)
“failure of the [NRAB] to conform, or confine, itself to matters
within the scope of its jurisdiction,” or (3) “fraud or
corruption by a member of the division making the order.”
See
Union Pac. R. Co. v. Bhd. of Locomotive Engineers & Trainmen Gen.
Comm. of Adjustment Cent. Region, - U.S. -, 130 S. Ct. 584, 593
(2009) (citing 45 U.S.C. § 153 First (q)); Sheehan, 439 U.S. at
93.
Thus, a federal district court may review an NRAB award
where the Board had jurisdiction over a matter, but declined to
exercise it.
See Union Pac. R. Co., 130 S. Ct. at 590-91
(finding that NRAB had improperly declined jurisdiction to
adjudicate grievances of railroad employees that remained
unsettled after pursuit of internal procedures).
11
II. ANALYSIS
BMWED acknowledges this highly deferential standard of
review, but argues that the arbitration awards must be vacated
because the NRAB refused to exercise its jurisdiction and perform
its statutory function under the RLA.
This Court must therefore
determine whether a genuine issue of material fact exists as to
whether the NRAB properly declined jurisdiction over the instant
claims.
Accordingly, the question presented to this Court is the
following: who has jurisdiction to resolve BMWED's claims against
Conrail - the NRAB, acting under the authority of the Railway
Labor Act, or the arbitrator designated by the STB to interpret
the terms of the Implementing Agreement, acting under the
authority of the Interstate Commerce Act?
Both Acts are briefly
summarized below.
A.
Interstate Commerce Act
Chapter 113 of the Interstate Commerce Act, 49 U.S.C. §
11301 et seq. (2011) (the "ICA"), grants the United States
Surface Transportation Board, formerly the Interstate Commerce
Commission, "exclusive authority to examine, condition, and
approve mergers and consolidations of transportation carriers
within its jurisdiction."
Norfolk & Western Ry. V. Am. Train
Dispatchers' Assoc., 499 U.S. 117, 119-120 (1991) (citing the ICA
provision now codified at 49 U.S.C. § 11323(a)(1)) (hereinafter
"Dispatchers").
When a proposed merger involves rail carriers,
12
49 U.S.C. § 11326 of the ICA requires the STB to impose
labor-protective conditions on the transaction "to safeguard the
interests of adversely affected railroad employees."
Id. at 120;
See also Union R.R. Co. v. United Steelworkers of Am., 242 F.3d
458, 464 (3d Cir. 2001) ("Recognizing that consolidations of
carriers would result in employee dismissals, transfers and other
changes detrimental to employees, the ICA mandated that the ICC
impose safeguards, like the New York Dock employee protective
conditions, to ensure that employee interests of the affected
parties are protected.") (hereinafter "Steelworkers").
In New York Dock, the ICC announced a comprehensive set of
conditions and procedures designed to meet its obligations under
§ 11326.
360 I.C.C. at 84-90.
Section 2 of the New York Dock
conditions provides that the "rates of pay, rules, working
conditions and all collective
bargaining and other rights,
privileges and benefits . . . under applicable laws and/or
existing collective bargaining agreements . . . shall be
preserved unless changed by future collective bargaining
agreements."
New York Dock, 360 I.C.C. at 84.
As discussed
above, § 4 sets forth negotiation and arbitration procedures for
resolution of labor disputes arising from an approved railroad
merger. Id. at 85.
B.
Railway Labor Act
13
The Railway Labor Act "governs the negotiation, enforcement
and modification of collective bargaining agreements between
railroad carriers and rail labor unions."
See Ry. Labor
Executives' Ass'n v. S. Pac. Transp. Co., 7 F.3d 902, 904 (9th
Cir. 1993), cert. den'd, 510 U.S. 1193 (1994).
The RLA provides
a framework for the resolution of disputes between employees and
carriers arising from the application or interpretation of a
collective bargaining agreement.
U.S. 601, 609-10 (1959).
Union Pac. R.R. v. Price, 360
These types of disputes are commonly
referred to as "minor disputes" because they contemplate the
existence of an already negotiated collective bargaining
agreement and relate to the interpretation of such agreements
concerning rates of pay, rules, or working conditions.
Consol.
Ry. Corp. v. Ry. Labor Executives Ass'n, 491 U.S. 299, 303
(1989); see 45 U.S.C. § 153(i) (2011).8
jurisdiction over such disputes.
The RLA gives the NRAB
45 U.S.C. § 153(i).9
"Work
assignment disputes are generally considered minor disputes" and
8
By contrast, “major disputes” relate to the formation of
collective bargaining agreements and involve a lengthier dispute
resolution process. Consol. Ry. Corp., 491 U.S. at 302-04.
9
The resolution of these minor disputes is accomplished by
mandatory arbitration before panels composed of two
representatives of labor and two of industry, with a neutral
referee serving as tiebreaker. See Union Pac. R.R. Co. v.
Brotherhood of Locomotive Engineers, - U.S. -, 130 S. Ct. 584,
591 (2009) (“To supply the representative arbitrators, Congress
established the NRAB, a board of 34 private persons representing
labor and industry in equal numbers.”).
14
thus fall within the exclusive jurisdiction of the NRAB as well.
CSX Transp., Inc. v. Transp. Commc'ns Intern. Union, 480 F.3d
678, 683 (4th Cir. 2007) (citing Transp. Commc'n Employees Union
v. Union Pac. R.R., 385 U.S. 157, 164 (1966); Slocum v. Del.,
Lackawanna & W. R.R. Co., 339 U.S. 239, 244 (1950)).
C.
Limitations Under Each Act
The ICA reflects Congress's commitment to a national policy
favoring the consolidation of railroads.
F.3d at 468.
See Steelworkers, 242
The Act promotes economy and efficiency within the
rail industry by "giv[ing] the STB considerable authority over
railroads, granting to it exclusive jurisdiction to authorize
railroad mergers and consolidations."
Id. at 466 (citing 49
U.S.C. § 11321(a); Dispatchers, 499 U.S. at 119-20).
This
"free[s] rail consolidations from burdensome delays and
expenditures associated with RLA procedures.
Thus, the ICA and
the RLA are not complementary and co-equal statutory schemes. . .
.
The RLA must yield to the ICA when it impedes the
implementation of a STB-approved consolidation."
Id. at 468.
This principle originates, in part, from a provision of the
ICA that expressly exempts rail carriers participating in
STB-approved transactions from "all other law . . . as necessary
to let that rail carrier . . . carry out the transaction . . . ."
49 U.S.C. § 11321(a).
Noting the broad language of this
provision, the United States Supreme Court has held that it
15
exempts carriers from their collective-bargaining obligations
under the RLA where necessary to carry out an STB-approved
transaction.
Dispatchers, 499 U.S. at 132.
The Dispatchers
Court stressed that this interpretation "makes sense of the
consolidation provisions" of the ICA, which were designed "to
promote economy and efficiency in interstate transportation."
Id. at 132-33; see also Del. & Hudson Ry. Co., 8 I.C.C. 2d 839,
846 (1992) ("The Supreme Court in [Dispatchers] recognized that
displacement of the RLA dispute resolution procedures is
necessary to assure that ICC-approved transactions go forward.").
The Court also noted that the ICA's "labor-protecting
requirements" seek to ensure that the STB accommodates the
interests of affected employees to the greatest extent possible.
Dispatchers 499 U.S. at 132-33 (citing Texas v. United States,
292 U.S. 522, 534-35 (1934)).
If the ICA did not supersede the RLA in this manner, "rail
carrier consolidations would be difficult if not impossible to
achieve.
The resolution process for major disputes under the RLA
would so delay the proposed transfer of operations that any
efficiencies the carriers sought [in consolidating] would be
defeated."
Dispatchers, 499 U.S. at 133 (citing Burlington N.
R. Co. v. Bhd. of Maint. of Way Employes, 481 U.S. 429, 444,
(1987) (RLA resolution procedures "virtually endless"); Detroit &
T. S. L. R. Co. v. United Transp. Union, 396 U.S. 142, 149,
16
(1969) (dispute resolution under RLA involves "an almost
interminable process"); Bhd. of Ry. & S.S. Clerks v. Florida E.
Coast Ry. Co., 384 U.S. 238, 246 (1966) (RLA procedures are
"purposely long and drawn out")).
Thus, the STB has “exclusive
jurisdiction” to adjudicate challenges to the implementation of
STB-approved consolidations.
Steelworkers, 242 F.3d at 468.
This jurisdiction, however, is neither timeless nor
limitless.
(1992).
See Del. & Hudson Ry. Co., 8 I.C.C. 2d 839, 845
"At some point, STB jurisdiction over the interpretation
of an implementing agreement ceases, and 'the parties will be
required to resort to the Railway Labor Act to resolve disputes
arising under [their] collective bargaining agreements then in
effect.'"
CSX Transp., Inc., 480 F.3d at 684 (quoting Del. &
Hudson Ry. Co., 8 I.C.C. 2d at 845-46; citing Harris v. Union
Pac. R.R., 141 F.3d 740, 744 (7th Cir. 1998) (rejecting the
railroad's understanding of [49 U.S.C. § 11321(a)], that the STB
is "forever in charge of all legal disputes related to a
merger")).
The point at which this occurs turns on: 1) the time
elapsed since the approved transaction was completed or since the
implementing agreement was issued, and 2) the nature of the
disputes - i.e., whether they draw their essence from the
collective bargaining agreement or the STB-approved implementing
agreement.
See id. at 684-85 & n.5 (finding NRAB jurisdiction
proper given the "amount of time that has passed since the
17
approved transaction was successfully completed" and the fact
that the disputes "drew their essence from the interpretation and
enforcement" of the CBA); Del & Hudson Ry. Co., 8 I.C.C. 2d at
846 (finding STB jurisdiction proper where implementing agreement
was "less than two years old" and issues went "directly to the
heart of the elements of the implementing agreement").
D.
Discussion
The first factor this Court considers, then, in assessing
whether the STB has jurisdiction, is the time elapsed since the
issuance of the implementing agreement or since the approved
transaction was completed; the greater the lapse of time, the
greater the likelihood that the STB no longer retains
jurisdiction.
See id.
Here, the Implementing Agreement was
issued in 1999, and Conrail contracted out the disputed work
pursuant to that Agreement at various times between 2000 and
2004.
Notably, it appears the SAA work was contracted out
pursuant to the Implementing Agreement as part of the
implementation of the Conrail Transaction.
Thus, the timing of
the disputes tends to favor STB jurisdiction.
See infra pp. 27-
28.
Next, the Court must consider the nature of the disputes;
specifically, whether they draw their essence from the collective
bargaining agreement or the New York Dock implementing agreement.
BMWED argues that its claims assert violations of the CBA and
18
thus the NRAB erred by refusing to adjudicate them.
It contends
that Conrail violated the CBA by contracting out maintenance of
way work contrary to the CBA's "Scope Rule."
Conrail counters
that the dispute, although labeled a CBA dispute, is in reality,
a dispute over the interpretation and scope of the Implementing
Agreement.
Thus, because the STB has the exclusive jurisdiction
to adjudicate such challenges, the NRAB correctly declined to
exercise jurisdiction.
This Court agrees with Conrail.
It is clear from the record
before the NRAB that these claims are not the typical minor
disputes involving the interpretation of a collective bargaining
agreement.
Rather, the critical question raised by each of the
claims is whether the Implementing Agreement permitted Conrail to
contract out the work in question.
In three of the arbitration
awards, the NRAB found it "clear" from the "extensive record" in
each case that both parties were relying on Implementing
Agreement provisions, and thus the Board had no jurisdiction to
resolve the dispute.
(Pl.'s Ex. 2, Award No. 39877 at 10; Pl.'s
Ex. 3, Award No. 39878 at 9; Pl.'s Ex. 5, Award No. 39880 at 9.)
In the fourth award, BMWED argued that the disputed work was
not covered by Section 1(h) of the Implementing Agreement,
because it did not appear on a list of projects planned for
outside contractors that Conrail had furnished to the Union.
(Pl.'s Ex. 1, Award No. 38988 at 3.)
19
The Board recognized that
the claim concerned whether the work Conrail had contracted out
fell within the purview of the Implementing Agreement.
Accordingly, it dismissed the claim, acknowledging the
"substantial jurisdictional question" at issue, the language of
the Implementing Agreement, and the "clearly established
precedent that the Board has no jurisdiction to consider disputes
arising under implementing agreements established pursuant to New
York Dock."
(Id. at 3-4.)
The NRAB noted that the dispute could
"only be decided by a duly authorized board constituted pursuant
to New York Dock."
(Id. at 4.)
In the fifth award, the Board
cited to Award Number 38988 and concluded that it lacked
jurisdiction to resolve the "procedural argument" regarding
whether the dispute fell under the Implementing Agreement.
(Pl.'s Ex. 4, Award No. 39879 at 8.)
Furthermore, the record reflects that both sides argued to
the NRAB the applicability of the Implementing Agreement.
In
each case, BMWED disputed Conrail's interpretation of the
Implementing Agreement.
The very first paragraph of BMWED's
submissions in four of the five cases before the NRAB assert that
"[t]he Implementing Agreement made no provisions for the
contracting out of [Conrail] Scope covered work and such work
remains governed by the provisions of the [CBA] between the
parties to this dispute."
(Def.'s Exs. E-H at 3.)
Three of
BMWED's submissions alleged that "the Carrier's purported plans
20
to contract out said work were directly in conflict with Article
I, Section 1(i)(5) of the . . . Implementing Agreement."
Exs. E at 8, F at 8; H at 7.)
(Def.'s
Conrail, on the other hand,
argued that the Implementing Agreement allowed it to contract out
the work in question, for reasons that varied according to the
project.
The STB has made clear that it has exclusive jurisdiction to
resolve disputes arising from a New York Dock implementing
agreement.
See infra pp. 29-30; Del. & Hudson Ry. Co., 8 I.C.C.
2d at 845; see also Steelworkers, 242 F.3d at 467 (3d Cir. 2001).
In Delaware & Hudson Railway Company, the STB underscored this
point by affirming a cease and desist order that prevented the
union from litigating the terms of the implementing agreement
under the Railway Labor Act and ordering the parties to arbitrate
the disputes under the STB-imposed New York Dock framework.
8
I.C.C. 2d at 839-40.
In Steelworkers, the Third Circuit Court of Appeals
established a closely related principle: that to the extent a
transaction subject to STB approval "impacts collective
bargaining agreements or the relationship between railroads and
their employees, the STB has exclusive jurisdiction in the first
instance to consider the issues."
242 F.3d at 467 (emphasis
added) (quoting Norfolk & W. Ry. Co. v. Bhd. of R.R. Signalmen,
164 F.3d 847, 855 (4th Cir. 1998)).
21
There, the Court considered
whether a federal district court has subject matter jurisdiction
to adjudicate disputes over changes to a collective bargaining
agreement made in connection with a rail merger that the STB had
authorized.
242 F.3d at 460.
Following the merger, the carrier
sought to consolidate certain clerical work.
When negotiations
between the parties failed, the railroad sought to arbitrate the
dispute under Article I, § 4 of New York Dock, which provides
that if the carrier and union cannot agree on how to implement
certain changes resulting from a transaction, "either party may
submit the dispute to arbitration before an arbitrator acting
pursuant to STB authority."
Id. at 460-61 & n.2.
The union
argued that it could not be compelled to arbitrate under New York
Dock and attempted to resolve the dispute under RLA procedures,
seeking declaratory and injunctive relief to that effect in
federal court.
Id. at 461-62.
The district court dismissed the
case for lack of jurisdiction, finding that "the propriety of the
Railroad's invocation of the New York Dock process must be
resolved by the STB, and by the Court of Appeals."
(internal quotations omitted).
Id. at 462
The Third Circuit affirmed,
adopting the Ninth and Fourth Circuits' interpretation of
Dispatchers: that the STB - not the district court - has the
exclusive authority to resolve labor disputes arising from
implementation of STB-authorized transactions.
22
Id. at 464, 467
(citing Ry. Labor Executives' Ass'n v. S. Pac. Transp. Co., 7
F.3d 902 (9th Cir. 1993); Signalmen, 164 F.3d 847)).
In a similar case, relied upon by the Steelworkers Court,
the Ninth Circuit Court of Appeals held that "where a railroad
which has been a party to an ICC-approved merger claims that
certain proposed actions are incident to that merger and exempt
from RLA procedures under [§ 11321(a)], the ICC has exclusive
authority to resolve a challenge to these claims."
See Ry. Labor
Executives' Ass’n v. S. Pac. Transp. Co., 7 F.3d 902, 906 (9th
Cir. 1993) ("Southern Pacific").
In Southern Pacific, the
railroads had proposed an operational change, which they asserted
was incident to their recent merger, subject to the New York Dock
procedures, and exempt from the RLA.
Id.
The unions countered
that the railroads' proposal fell outside the scope of the ICC's
merger approval, was not necessary to the implementation of the
merger, and thus not entitled to § 11321(a) exemption.
Id.
The
Ninth Circuit, like the Third Circuit in Steelworkers, concluded
that since the ICC had exclusive authority to approve the merger
and exempt the railroads from any law which might impede the
merger, it therefore "should have exclusive authority to clarify
the scope of its own approval and the corresponding breadth of
the section [11321(a)] exemption."
Id.
The Court stressed that
a "contrary result would interfere with the exclusive authority
23
that the statutory scheme confers upon the ICC in this area."
Id.
Although Steelworkers and Southern Pacific concern STB
jurisdiction over disputes resulting from STB-approved
transactions, and do not explicitly discuss implementing
agreements, they nevertheless establish that the STB has
exclusive jurisdiction in the first instance to clarify the scope
of its approval of such transactions and the breadth of any
exemptions from RLA procedures.
Steelworkers, 242 F.3d at 467;
Southern Pacific, 7 F.3d at 906.
The proposition set forth by
the STB in Delaware & Hudson, 8 I.C.C. 2d at 845, flows logically
from this principle: where the parties dispute the scope of a New
York Dock implementing agreement and the extent to which it
exempts the carrier from its obligations under the RLA, the STB
must also have exclusive jurisdiction in the first instance to
clarify the scope of that implementing agreement.
Indeed, it
would be illogical to require New York Dock arbitrators to
interpret the scope of an approved transaction and issue
associated implementing agreements, but require the NRAB to
interpret those agreements.
Surely, permitting the Union to litigate the scope of a New
York Dock implementing agreement before the NRAB would frustrate
the ICA's statutory scheme and undermine the STB's ability to
facilitate mergers in an efficient manner.
24
This result "would
interfere with the exclusive authority that the statutory scheme
confers upon the [STB] in this area."
at 906.
Southern Pacific, 7 F.3d
As the Ninth Circuit noted in Southern Pacific, "[i]f we
held that parties could litigate in federal district court the
scope of an approved merger and the corresponding breadth of the
section [11321(a) exemption], we would surely interfere with the
ICC's ability to efficiently facilitate mergers.
We would invite
a barrage of collateral challenges to the ICC's authority which
would be likely to frustrate and delay the administration of
mergers in a way that section [11321(a)] was clearly meant to
avoid."
7 F.3d at 906-07.
Similarly, the STB held that if a
union can "frustrate the orderly execution of the terms of an
implementing agreement through resort to the RLA," it is "in
effect collaterally attacking the agreement."
Del. & Hudson Ry.
Co., 8 I.C.C. 2d at 845.
Thus, the STB, having exclusive jurisdiction in the area of
railroad mergers, must have the ability to examine and clarify
the breadth and scope of a New York Dock implementing agreement
in the first instance.
See Southern Pacific, 7 F.3d at 906
("[B]ecause the ICC had exclusive authority to approve the . . .
merger and thereby exempt the Railroads from any . . . law which
might otherwise impede the merger, it should have exclusive
authority to clarify the scope of its own approval and the
corresponding breadth of the section [11321(a)] exemption.").
25
BMWED argues that its claims asserted violations of the CBA,
as modified by the Implementing Agreement, and, thus, the NRAB
was obligated to decide the dispute.
point.
This argument misses the
If a party, by merely labeling the dispute a "CBA
dispute" or simply failing to cite to the implementing agreement
could escape the STB's jurisdiction, it could easily thwart the
statutory framework set forth above.
See, e.g., Del. & Hudson
Ry. Co., 8 I.C.C. 2d at 845 ("[R]ail labor must not be permitted
by artful pleading to assert RLA jurisdiction over matters
directly related to implementing a transaction approved by the
Commission under [§ 11323] and, thereby, avoid the jurisdictional
bar of [§ 11321(a)].") (citing United Transp. Union v. Norfolk &
W. Ry. Co., 822 F.2d 1114, 1120 (D.C. Cir. 1987), cert. den'd,
484 U.S. 1006 (1988)).
The NRAB, like this Court, must look
beyond labels to the essence of the parties' dispute.
As
discussed above, there is little question that the parties'
disagreement concerns whether or not the Implementing Agreement
permitted Conrail to contract out the work in dispute.
Indeed,
the NRAB concluded and the parties' submissions reflected, that
the disagreement centered on the application and interpretation
of the Implementing Agreement.
Thus, the STB was the agency
charged with the exclusive authority to resolve the dispute.
BMWED argues that the Fourth Circuit's decision in CSX
Transportation Incorporated v. Transportation Communications
26
International Union, 480 F.3d 678 (4th Cir. 2007) ("TCIU"),
supports NRAB jurisdiction over its claims.
(Pl.'s Br. 30, 38.)
However, BMWED's reliance on TCIU is misplaced.
There, the
parties had litigated the disputes before the NRAB for over a
decade before the carrier ever raised the argument that the NRAB
had exceeded its jurisdiction in deciding the claims.
681-82.
Id. at
Further, the dispute in that case centered on the
interpretation of the parties' collective bargaining agreement,
not the terms of the implementing agreement.
The key issue was
whether clerical employees who had been transferred to a new
customer service center pursuant to the New York Dock
implementing agreement had a right to perform certain work under
the CBA.
The NRAB arbitrators in TCIU consulted the "plain terms
of the Implementing Agreement only to determine retrospectively
whether the disputed tasks were transferred . . . in the first
place."
Id. at 684-85.
Thus, the implementing agreement was
only consulted to see whether the work had, in fact, been
transferred.
The district court upheld the NRAB awards, noting
that it had not "actively interpreted the Implementing Agreement,
but instead looked at what actually transpired in terms of
whether work was transferred after 1991."
quotations omitted).
Id. at 682 (internal
The district court also relied on the fact
that the transfer of the clerical functions pursuant to the
implementing agreement "had long ended" and thus the ICC "no
27
longer preempted dispute resolution by the NRAB in accordance
with the Railway Labor Act."
Id.
The Fourth Circuit affirmed
for similar reasons, emphasizing that the disputes "drew their
essence" not from the implementing agreement, but "from the
interpretation and enforcement of the collective bargaining
agreement between the parties."
Id. at 684.
The Court rejected
the carrier's argument that the STB has jurisdiction over "all
disputes that in any way reference the New York Dock Implementing
Agreements . . . even years after the approved transaction has
been completed."
Id. at 684.
TCIU is readily distinguishable from the case at bar.
This
is not a case where the parties only tangentially referred to an
implementing agreement and the key issue arises under the
parties' labor agreement.
On the contrary, the core issue in
each of the awards before this Court is whether the Implementing
Agreement permits Conrail to contract out the work in question.
Further, Conrail has alleged that it assigned the disputed work
as part of the implementation of the STB-approved transaction,
not after its completion.
Indeed, the disputes arose from the
very way in which Conrail interpreted and carried out the
Implementing Agreement.
Accordingly, these facts raise a
substantial issue as to the scope of the Implementing Agreement
that must be presented to a New York Dock panel.
28
Finally, BMWED argues that "there is no New York Dock
arbitration panel that could hear and decide the disputes."
Pl.'s Moving Br. 35-37.)
The Court disagrees.
(See
As discussed
above, interpretation of an implementing agreement's contractual
terms is "well within" the jurisdiction of the STB and its New
York Dock arbitration panels.
See CSX Corp. - Control - Chessie
Sys., Inc. & Seaboard Coast Line Indus., Inc., STB Finance No.
28905 (Sub-29), 2008 WL 686101, *5 (Mar. 14, 2008) ("We have
recognized that interpreting [implementing] agreements is well
within the expertise of [a New York Dock] arbitration panel.")
(citing Union Pac. Corp., Union Pac. R.R. Co., & Mo. Pac. R.R.
Co., STB Finance No. 32760 (Sub-37), slip op. at 3 (Aug. 16,
2000)); see also Union Pac. Corp., Union Pac. R.R. Co. & Mo. Pac.
R.R. Co., STB Docket No. FD 32760 (Sub-45), 2010 WL 5125512, *1
(Dec. 15, 2010) (affirming arbitrator's award that interpreted
implementing agreement resulting from STB-authorized merger).
In Delaware & Hudson Railway Company, 8 I.C.C. 2d 839, 839
(1992), the STB held that it retains jurisdiction under the ICA
to resolve disputes involving the proper interpretation of an
STB-approved implementing agreement.
Id. (citing the ICA
provision now codified at 49 U.S.C. § 11326).
The STB first
found such jurisdiction proper under Article I, § 11 of the New
York Dock conditions, which provides that when the parties cannot
voluntarily resolve questions involving the interpretation of
29
these conditions, they may submit them to a New York Dock
arbitration committee.
Id. at 844.
The STB reasoned that a
dispute over the proper interpretation of an implementing
agreement involves the interpretation of the STB-imposed
protective labor conditions.
Id.
Alternatively, the STB noted,
it has jurisdiction pursuant to Article I, § 4 of the New York
Dock conditions, which requires the parties to arbitrate an
implementing agreement if they cannot voluntarily arrive at one.
Id. at 844.
The STB reasoned that the dispute over the terms of
the implementing agreement could be viewed as a continuation of
the § 4 arbitration process that resulted in that agreement.
Id.
at 844-45.
This Court agrees with the STB’s analysis, for the reasons
discussed above.
If a New York Dock arbitration panel, acting
under authority of the STB, has authority to interpret the STBapproved transaction and issue an agreement setting forth the
manner in which that transaction must be implemented, then the
New York Dock panel must also have exclusive authority to
interpret that implementing agreement.
Otherwise, the ICA’s
statutory framework and the STB’s exclusive jurisdiction to
oversee rail mergers in an efficient manner would be frustrated.
See supra pp. 23-25.
Accordingly, the Court rejects the Union's
claim that a New York Dock arbitration panel could not hear and
decide these disputes.
30
Thus, the Court finds no genuine dispute of material fact as
to whether the NRAB properly denied BMWED’s claims due to lack of
jurisdiction.
It is clear to this Court that the NRAB properly
declined jurisdiction because it lacks authority to interpret and
clarify the Implementing Agreement, which is what these disputes
require.
Since the NRAB did not fail to comply with the
requirements of the RLA or conform to the scope of its
jurisdiction, the Court must dismiss these appeals for lack of
jurisdiction.
III. CONCLUSION
For the above reasons, Conrail's cross-motion for summary
judgment is granted, and BMWED's motion for summary judgment is
denied.
An accompanying Order shall issue this date.
Dated: June 6, 2011
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
31
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