16 F.3d 832 (7th Cir. 1994), 93-1085, Dempsey v. Atchison, Topeka and Santa Fe Ry. Co.

Docket Nº:93-1085.
Citation:16 F.3d 832
Party Name:Dennis T. DEMPSEY, Ronald E. Shaver, Raymond E. Young, et al., Plaintiffs-Appellants, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, United Transportation Union, and J.G. Bailey, as General Chairman of United Transportation Union, Defendants-Appellees.
Case Date:February 25, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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16 F.3d 832 (7th Cir. 1994)

Dennis T. DEMPSEY, Ronald E. Shaver, Raymond E. Young, et

al., Plaintiffs-Appellants,



Transportation Union, and J.G. Bailey, as General

Chairman of United Transportation Union,


No. 93-1085.

United States Court of Appeals, Seventh Circuit

February 25, 1994

Argued Sept. 9, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied April 1, 1994.

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Harold A. Ross, Ross & Kraushaar, Cleveland, OH (argued), Marvin Gittler, Stephen J. Feinberg, Asher, Gittler, Greenfield, Cohen & D'Alba, Chicago, IL, for plaintiffs-appellants.

J. Stephen Poor, David J. Rowland (argued), Seyfarth, Shaw, Fairweather & Geraldson, Patrick J. Harrington, Robert Earl Harrington, Jr., Harrington, Thompson, Acker & Harrington, Jr., Chicago, IL, Norton N. Newborn, Cleveland, OH, for defendants-appellees.

Before FLAUM and MANION, Circuit Judges, and REYNOLDS, District Judge. [*]

MANION, Circuit Judge.

In the midst of a threatened national railway strike, the plaintiffs, the Brotherhood of Locomotive Engineers (BLE), and eight engineers employed by Atchison, Topeka, and Santa Fe Railway Company (Santa Fe), filed suit to preliminarily enjoin the enforcement of a side letter agreement to a collective bargaining agreement executed between Santa Fe and the United Transportation Union (UTU). The challenged agreement required UTU members who wanted to accrue additional seniority to pay monthly dues to UTU even though they had transferred to an engineer position under the jurisdiction of the BLE. The district court denied plaintiffs' request for declaratory and injunctive relief, and granted summary judgment to UTU and judgment on the pleadings to Santa Fe. We affirm.

I. Background

Santa Fe is an interstate railway carrier within the meaning of Section 1 of the Railway Labor Act (RLA), 45 U.S.C. Sec. 151 et seq. Like most railroads, Santa Fe has collective bargaining agreements with different unions who represent the various categories, or "crafts," of train employees. One such union is the UTU. UTU is the exclusive bargaining representative for the train service craft, 1 which includes Santa Fe's conductors, brakemen, and switchmen. BLE is the exclusive bargaining representative for the engine service craft, which consists of Santa Fe's engineers.

Santa Fe and UTU have long been parties to collective bargaining agreements. Under an agreement between Santa Fe and UTU, dated September 1, 1966, train service employees first obtained seniority through date of hire or first service in the craft and then maintained seniority standing by the terms of the collective bargaining agreement. The agreement also provided that even if an employee leaves the train service crafts for any period of time he would continue to accumulate seniority. Also, as is common in these railroad agreements, the 1966 Santa Fe-UTU agreement contained a union shop provision, that is, an agreement requiring as a condition of continued employment that employees join the union designated as their authorized bargaining representative. The agreement also provided that this union shop

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provision is satisfied if the employee is a member of any labor organization national in scope organized in accordance with the RLA and which admits as members employees in the train service or engine service crafts. Thus, membership in the UTU or the BLE satisfied the union shop.

The question before us began in 1988, when Santa Fe, BLE, and UTU were parties to a round of negotiations between the nation's railroads and railway labor unions. Apparently the railroads, including Santa Fe, wanted to reduce the number of workers required on each train, known as the "crew consist." The parties were not so much in disagreement with the notion of reducing the crew as they were the method of achieving such reduction; the unions wanted to use attrition whereas the railroads wanted to reduce the excess employees' wages. The parties were unable to reach an agreement during these negotiations which led to threats of a nationwide strike on the part of the railway unions. To break this deadlock, then-President Bush, by Executive Order 12714, appointed the Presidential Emergency Board 219 to investigate the dispute and to report its findings. The Emergency Board reported, among other things, that the railroads had made a valid proposal to reduce the crew consist, but that the parties should bargain this matter locally, not nationally.

Despite the Emergency Board's recommendations, some of the railroads and unions were unable to reach agreement. As a result, eleven railroad unions, including UTU, went on strike against most of the nation's major railroads, including Santa Fe. To avert a nation-wide railway strike, the Congress, on April 18, 1991, passed Public Law Number 102-29 which made the recommendations of the Emergency Board binding upon the parties. In accordance with the legislated agreement, UTU and Santa Fe went back to the bargaining table and adopted a crew consist agreement on July 6, 1992. Under the agreement, UTU agreed to the elimination of certain train service positions and the separation of train service positions through buyouts. In addition to this agreement, UTU and Santa Fe also executed a side letter agreement to the crew consist agreement, known as Side Letter No. 11, which provided that train service employees who were transferred to engine service and who wished to continue accumulating additional seniority in train service, must pay monthly dues to the UTU. 2 Prior to the execution of Side Letter 11, seniority accumulated even when an employee in the train service craft was transferred to and joined a different union.

The BLE and eight engineers challenged the validity of Side Letter 11 and brought this action in the district court requesting preliminary as well as declaratory relief. According to plaintiffs, Side Letter 11 is illegal under Section 2 Eleventh (c) of the RLA because it effectively requires transferred train service employees to become members of multiple unions. As stated earlier, plaintiffs include four members of the UTU currently working in engine service who want to become members of the BLE, and four non-members of UTU who are already members of the BLE and are working in engine service. Plaintiffs argue that although their membership in the BLE should be sufficient to satisfy the 1966 UTU-Santa Fe union shop agreement, Side Letter 11 will effectively force them to also become members of the UTU if they wish to continue accruing seniority

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in train service while working as engineers. This, according to plaintiffs, leads to a form of compulsory dual unionism expressly prohibited by the RLA. Plaintiffs also argue that Side Letter 11 violates Section 2, Third and Fourth of the RLA because it interferes with the workers' rights to organize and bargain collectively through the representatives of their own choosing. Finally, plaintiffs alleged that Side Letter 11 violated Article 51 of the UTU constitution.

The district court concluded that Side Letter 11 was valid and granted judgment on the pleadings to Santa Fe and summary judgment for UTU. With respect to plaintiffs' argument under Section 2 Eleventh (c), the court noted that nothing on the face of Side Letter 11 required transferred train service employees working in engine service to maintain membership in the UTU as a condition of continued employment in the train service craft. Dempsey v. Atchison, Topeka & Santa Fe Ry. Co., No. 92 C 5365, 1992 WL 404488, slip op. at 6 (N.D.Ill., December 30, 1992). Instead, the court found that Side Letter 11 merely required payment of dues to UTU should a transferred train service employee wish to continue accruing train service seniority while working in engine service. Id. at 7. Next, the court found that the side letter agreement did not violate Section 2, Fourth. 3 The court observed that the original purpose behind Section 2, Fourth was to prevent unorganized employees from being forced into joining so-called "company unions" under the control of the railroad. Because plaintiffs were not unorganized employees, the only way they could invoke the protections of Section 2, Fourth would be if they could demonstrate that by enacting Side Letter 11, Santa Fe and UTU had struck "a fundamental blow to union or employer activity and the collective bargaining process itself." Id. at 12 (quoting Trans World Airlines v. Indep. Fed'n of Flight Attendants, 489 U.S. 426, 442, 109 S.Ct. 1225, 1235, 103 L.Ed.2d 456 (1989)). Using this standard, the district court concluded that Side Letter 11's requirement of monthly dues to accrue additional seniority in the UTU was not a severe assault to the BLE and therefore did not rise to a violation of Section 2, Fourth. Having thus disposed of plaintiffs' federal claims, the district court concluded that it did not have supplemental jurisdiction over plaintiffs' state law claim regarding the violation of UTU's constitution. This timely appeal followed.

II. Analysis

A. Standard of Review

In its order, the district court stated that it had before it, and consequently granted, a motion by Santa Fe for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) and a motion by UTU for summary judgment pursuant to Fed.R.Civ.P. 56(c). However, after examining Santa Fe's "Memorandum In Opposition To Plaintiffs' Motion For Preliminary Injunction And In Support Of Defendant Santa Fe's Motion For Judgment On The Pleadings," R. 24, it is clear to us that Santa Fe's motion was really one for summary judgment. For example, in the section of Santa Fe's memorandum entitled "Brief Statement of Facts," Santa Fe states that as support for its factual allegation, it was relying not only upon its complaint but also upon the affidavit of BLE's General...

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