Sorensen v. Chicago & North Western Transp. Co.
| Decision Date | 08 June 1979 |
| Docket Number | Civ. No. 77-0-424. |
| Citation | 476 F. Supp. 1125 |
| Parties | Murray R. SORENSEN, Davey J. Horn, Ed P. Murphy, Tom E. Taylor, Lee L. Moreland, Robert E. Poole, Emil Kudera, Fred V. Skinner, Ed K. Madsen, Frank G. Jerkovich and Kenny L. Way, Sr., Plaintiffs, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, a corporation, Defendant. |
| Court | U.S. District Court — District of Nebraska |
Jeffrey Stoehr and Mark Belmont, Omaha, Neb., for plaintiffs.
Harry B. Otis, Omaha, Neb., for defendant.
This matter comes before the Court upon the defendant's motion for summary judgment Filing # 18. Briefs and affidavits have been submitted and a hearing was held before the Court on February 9, 1979.
In effect, this motion is quite similar to an earlier motion to dismiss Filing # 11 filed by the defendant. The latter motion was denied at that time, the Court being of the opinion that it would be premature to dismiss the case at such an early stage of the litigation See Filing # 15. Since then, however, the parties have submitted an enormous amount of information, further clarifying their respective positions in this matter and culminating in defendant's summary judgment motion.
The Court has thoroughly reviewed the extensive record in this case, which indicates the following: On May 23, 1968, the Interstate Commerce Commission hereinafter referred to as the ICC entered an order approving the merger of the Chicago Great Western Railway Company into the Chicago and North Western Railway Company (Finance Docket No. 23388). In this order, the ICC affirmed its prior order of September 27, 1967, providing for the protection of the employees pursuant to section 5(2)(f) of the Interstate Commerce Act (49 U.S.C. § 1 et seq.), by requiring that the employees be protected by the imposition of conditions as set forth in the New Orleans Union Passenger Terminal Case, 282 I.C.C. 271 (1952). Section 5(2)(f) provides as follows:
As a condition of its approval, under this paragraph or paragraph (3), of any transaction involving a carrier or carriers by railroad subject to the provisions of this chapter, the Commission shall require a fair and equitable arrangement to protect the interests of the railroad employees affected. In its order of approval the Commission shall include terms and conditions providing that during the period of four years from the effective date of such order such transaction will not result in employees of the carrier or carriers by railroad affected by such order being in a worse position with respect to their employment, except that the protection afforded to any employee pursuant to this sentence shall not be required to continue for a longer period, following the effective date of such order, than the period during which such employee was in the employ of such carrier or carriers prior to the effective date of such order. Such arrangement shall contain provisions no less protective of the interests of employees than those heretofore imposed pursuant to this subdivision and those established pursuant to section 565 of Title 45. Notwithstanding any other provisions of this chapter and chapters 8 and 12 of this title, an agreement pertaining to the protection of the interests of said employees may hereafter be entered into by any carrier or carriers by railroad and the duly authorized representative or representatives of its or their employees. 49 U.S.C. § 5(2)(f) (Supp.1978).
Thereafter, on December 19, 1968, the merged railroad entered into Agreements for the Protection of Employees represented by the Brotherhood of Railroad Trainmen and the Order of Railway Conductors and Brakemen hereinafter referred to as the 1968 Agreements. See Exhibit A attached to plaintiffs' amended complaint. Both agreements which were substantially identical were entered into pursuant to § 5(2)(f). On January 1, 1969, the unions were merged into the United Transportation Union.
Prior to the 1968 Agreements, the plaintiffs were employed as yardmen. However, after the 1968 Agreements, the plaintiff obtained seniority rights as roadmen or trainmen.1 As a result of this change, questions arose whether the plaintiffs, as former yardmen, were now subject to those provisions normally applicable to roadmen or trainmen. This was especially true with respect to the applicability of Rule 52 of the collective bargaining schedule agreement, effective October 1, 1946, between the Brotherhood of Railroad Trainmen and the former Chicago, St. Paul, Minneapolis, Omaha Railway Company, which required the plaintiffs to take an examination for promotion or risk discharge from employment. Rule 52 states as follows:
In examining men on books of rules for promotion to conductors, oldest trainmen in service will have preference, merit and competency being equal. The Company reserves the right, however, to hire conductors outside of employes, should the service in the judgment of the officers demand it. Trainmen entitled to promotion will be promoted if considered competent after examination by Division Superintendent or his representative. If applicant fails to pass such examination he may be re-examined after the expiration of three months if the Company is in need of men. If he fails to pass second examination, he will be neither re-examined nor promoted, the Company reserving the right to dismiss him from the service. The Superintendent shall be the judge of his qualifications.
Thereafter, on June 25, 1969, the United Transportation Union and the defendant entered into a Memorandum of Agreement establishing a Special Board of Adjustment to hear disputes with respect to the provisions of the 1968 Agreements. On April 19, 1976, The Special Board of Adjustment created under the June 25, 1969, agreement, rendered Award No. 142, regarding the dispute as to the application and interpretation of the 1968 Agreements. The Board found that the defendant did not violate the merger agreement. However, the Board did not consider the dispute regarding the interpretation of Rule 52. Neither the plaintiffs nor the union ever appealed or filed a petition for review of the April 19, 1976, decision Award No. 142.
Then, on May 7, 1976, the union proferred to the defendant an agreement establishing a Special Board of Adjustment (Public Law Board No. 1811) under the Railway Labor Act (45 U.S.C. § 151 et seq.), to have jurisdiction over the question of whether the plaintiffs were given proper notice of examination for promotion to conductor under Rule 52 and whether they were improperly denied their monthly earning allowances guaranteed them by the 1968 Agreements. On June 30, 1976, Murray Humphrey, Director of Labor Relations for the defendant, wrote a letter to T. Q. Ryan, Chairman of the United Transportation Union, agreeing to the creation of a Special Board of Adjustment to handle only the dispute as to whether proper notice was given under Rule 52. Subsequently, on January 20, 1977, Public Law Board No. 1811 rendered Award No. 1, with respect to the dispute between the parties relating to whether Rule 52 was properly applied by the defendant to the plaintiffs.2
In the first cause of action of their amended complaint, the plaintiffs allege that the defendant breached the December 19, 1968, agreement in various particulars. This includes the failure to pay the plaintiffs guaranteed monthly earning allowances prescribed by the terms of the agreements. Plaintiffs claim this to be in violation of the protections afforded by 49 U.S.C. § 5(2)(f).
In their second cause of action, plaintiffs contend that Public Law Board No. 1811 in matters leading to its opinion of January 20, 1977, exceeded the scope of its authority and did not properly address itself to the issues; that the ruling was arbitrary and capricious and not based on sufficient factual and legal foundation.
The plaintiffs, in their amended complaint, state that this Court has subject matter jurisdiction over the controversy pursuant to the following sections of the United States Code, to wit: 28 U.S.C. § 1331; 28 U.S.C. § 1337; 49 U.S.C. § 5(2)(f); 49 U.S.C. § 9; 49 U.S.C. § 16(12) and 45 U.S.C. § 153 subd. 1(q). Briefly stated, the first five statutes confer jurisdiction on this Court where the controversy arises under:
(1) The constitution, laws or treaties of the United States, 28 U.S.C. § 1331:
(2) Any Act of Congress regulating Commerce, 28 U.S.C. § 1337;
(3) An order of the ICC, 49 U.S.C. § 5(2)(f);
(4) The Interstate Commerce Act, 49 U.S.C. § 9;
(5) An order of the ICC, 49 U.S.C. § 16(12). The last statute, 45 U.S.C. § 153, provides for limited review by the United States District Court of a ruling by an adjustment board created under § 153.
The Court, having thoroughly reviewed the extensive record now before it, is of the opinion that the defendant's motion should be granted. The matters about which the plaintiffs complain do not spring directly from the merger order or any order of the ICC, but rather from the collective bargaining agreements of December 19, 1968, placing the matter within the exclusive jurisdiction of the National Railroad Adjustment Board or a Board established by agreement between the parties. See 45 U.S.C. § 153.
The Court will first consider plaintiffs' claims with respect to the defendant's alleged violation of the 1968 Agreements, and the effect which Award No. 142, rendered by the Special Board of Adjustment had on such claims. Later in the opinion, the Court will examine plaintiffs' claims with respect to the award rendered by Public Law Board No. 1811.
The ICC, in its order of May 23, 1968, approving the merger, affirmed its prior order of September 27, 1967, which provided for the protection of employees pursuant to § 5(2)(f), as follows:
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