Wheeling & Lake Erie Ry. Co. v. Bhd. of Locomotive Eng'rs & Trainmen

• Decision Date: 26 June 2015
• Docket Number: No. 13–4356.,13–4356.
• Citation: 789 F.3d 681
• Parties: WHEELING & LAKE ERIE RAILWAY COMPANY, Plaintiff–Appellee, v. BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN; Robert H. Linsey, Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

789 F.3d 681

WHEELING & LAKE ERIE RAILWAY COMPANY, Plaintiff–Appellee

v.BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN; Robert H. Linsey, Defendants–Appellants.

No. 13–4356.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 7, 2014.

Decided and Filed: June 26, 2015.

Rehearing En Banc Denied Aug. 5, 2015.^*

ARGUED:Margo Pave, Zwerdling, Paul, Kahn & Wolly, P.C., Washington, D.C., for Appellants. Ronald M. Johnson, JONES DAY, Washington, D.C., for Appellee. ON BRIEF:Margo Pave, Michael S. Wolly, Zwerdling, Paul, Kahn & Wolly, P.C., Washington, D.C., for Appellants.Ronald M. Johnson, Jones Day, Washington, D.C., for Appellee.

Before: KEITH, MOORE, and STRANCH, Circuit Judges.

AMENDED OPINION

STRANCH, Circuit Judge.

We are asked to decide whether the Wheeling & Lake Erie Railway Company (the Railroad) and the Brotherhood of Locomotive Engineers and Trainmen (BLET) are engaged in a major or a minor dispute under the Railway Labor Act (RLA). The district court entered a preliminary injunction barring BLET from taking any economic action against the Railroad, finding that the parties were engaged in a minor dispute. Because we determine the parties' dispute over the Railroad's use of supervisors as conductors is major, not minor, we REVERSE the district court's holding that the dispute is minor. We further VACATE the portion of the preliminary injunction granting relief to the Railroad on the parties' dispute over using supervisors as conductors, and we REMAND the case to the district court for further proceedings consistent with this opinion.

I. FACTS

The Railroad is a regional common carrier within the meaning of the RLA. 45 U.S.C. § 151, First. It maintains its principal offices in Brewster, Ohio, and operates 840 miles of track in the states of Ohio, Pennsylvania, West Virginia, and Maryland. BLET is an unincorporated association and labor union within the meaning of the RLA, 45 U.S.C. § 151, Sixth, and it represents locomotive engineers and trainmen, including conductors and brakemen, who work for the railroad. BLET has represented the Railroad's engineers since 1992 and its trainmen since 2004. Prior to 2004, the trainmen were represented by the United Transportation Union (UTU). After BLET replaced UTU, the union negotiator was Cole Davis, BLET's General Chairman of the BLET General Committee of Adjustment NS Northern Lines/W & LE (BLET GCA).

Central to our analysis is the “crew consist” provision found in Article I, Scope, of the Trainmen Agreement, which provides:

(h):i. The crew consist of all assignments (regular or extra) shall consist of not less than one (1) conductor and one (1) brakeman, except as otherwise provided for under paragraph (ii) hereof. (Exceptions: No conductor or brakeman shall be called for light engines or engine changers.)

ii. The Carrier may operate conductor only assignments at its own discretion. In the event a conductor works without a brakeman[,] he shall receive a special allowance of ten dollars for each complete tour of duty.

iii. The Carrier is not prohibited from operating crews with a greater number of trainmen if it so desires.

R. 19 Page ID 282.

On October 9, 2003, the Railroad served a notice on UTU, pursuant to Section 6 of the RLA, 45 U.S.C. § 156, seeking to eliminate the “crew consist” provision of the Trainmen Agreement. Negotiations concerning this notice continued for several years.

During the negotiations, the Railroad insisted that the “crew consist” provision must be deleted from the Trainmen agreement so that the Railroad would not have to assign a union conductor to each train. BLET refused this proposed change. In March 2007, the Railroad finally agreed to a new Trainmen Agreement that maintained the “crew consist” provision, and that agreement, with some changes not relevant here, was ratified by the BLET membership in June 2008. The 2008 agreement presently governs the relationship of the parties, although the parties have continued to negotiate changes to the agreement since 2012.

On July 11, 2008, Joseph C. Burley, the Railroad's Director of Human Resources, sent a letter to Cole Davis of BLET stating in part:

During this most recent round of bargaining, we were unable to reach an agreement on the operation of trains with a single person crew in limited situations despite our good faith efforts. At the request of [BLET, the Railroad] agreed to remove this topic from the bargaining table for this round with the understanding that the parties will continue to bargain over this matter in the next round of negotiations.

R. 19–1 Page ID 320. Davis promptly responded in writing that BLET was “committed ... to the principle that railway operations cannot be conducted safely with any less than two Train/Engine Service employees on each movement and are prepared to maintain that stance throughout the course of any future rounds” of bargaining. R. 19–1 Page ID 322. Davis also corrected Burley's notion that BLET had agreed to continue bargaining over the elimination of the “crew consist” rule in future rounds of contract negotiations:

The tentative agreement that failed ratification in 2007 was reached in March of that year after the Carrier unconditionally withdrew the issue of single person crews. When the Agreements that were ratified were being negotiated locally the Carrier attempted, unsuccessfully, to attach a side letter containing an in futuro commitment to bargain over single person crews during the next round of negotiations. It was only after intercession by the [National Mediation Board] and the attendance of [BLET's] National President and First Vice President at our last negotiation session in Cleveland that the Carrier withdrew its demand for the offending side letter and initialed the tentative Agreements that were ultimately ratified and are completely silent with respect to the issue of single person crews or the nature and scope of the next round of negotiations. While verbally acknowledging our statutory duty to bargain in good faith, [BLET] did not consent to any understanding in connection with, or in exchange for, the Carrier's withdrawal of its demand for the side letter concerning future negotiations over the single person crew issue.

R. 19–1 Page ID 322–23.

On January 1, 2011, Robert H. Linsey succeeded Cole Davis as General Chairman of BLET. On March 25, 2011, Linsey sent a letter to Joseph Burley stating that he had just learned that, on March 3 and 14, the Railroad had operated trains from Brewster, Ohio without a union conductor assigned to the trains. Linsey advised Burley that BLET viewed these acts as major violations of the Trainmen Agreement. His letter stated that “[n]o less than one Conductor must be assigned to all trains without exception [and] [w]e must insist, therefore, that you take immediate[ ] action to preclude any repetition of such egregious violations.” R. 20–2 Page ID 472. Burley and other officials of the Railroad met with Linsey and assured him that they would cease such operations.

Approximately two months later, in May 2011, Linsey learned that the Railroad had run another train without an engineer or a conductor and had instead allowed a Railroad management official and a shop employee to run the train. Linsey wrote a letter to James I. Northcraft, Vice President of Transportation for the Railroad, objecting to the action and demanding that the Railroad cease and desist its operation of trains without the required union crew. Burley responded that there were no rested engineers or conductors available to run the train. Linsey disagreed, pointing out that a rested engineer and a rested conductor were available to run the train and the Railroad acted deliberately in failing to call them. Again, Linsey demanded that the Railroad cease and desist its conduct. After further investigation into the incident, Burley admitted that the rested engineer and conductor should have moved the train because a freight car was attached to the locomotives. He suggested that the affected union employees submit time claims.

On July 25, 2011, Linsey sent a letter to Burley stating:

We appreciate your acknowledgement that there is no contractual basis for your actions and that you will undertake every effort to assure that it does not happen again. As you know, [BLET] considers the operation of any locomotive without a full crew to raise a major dispute and while we understand that sometimes mistakes are made inadvertently, future instances like this will be regarded as violations of the Carrier's status quo obligation under the RLA and addressed accordingly.

R. 20–2 Page ID 481; R. 20 Page ID 327–28.

The following January, BLET served a Section 6 notice on the Railroad to amend the Trainmen Agreement. In March 2012, the Railroad served a Section 6 notice on BLET, seeking once again to remove the “crew consist” provision from the Scope Rule of the Trainmen Agreement.

BLET and the Railroad engaged in direct bargaining over both parties' Section 6 notices on numerous occasions without success. In August 2012, BLET asked the National Mediation Board (NMB) to appoint a mediator to assist the parties in their negotiations. The NMB assigned a mediator shortly thereafter, and the parties mediated their disputes. In March 2013, BLET asked the NMB to try to induce the parties to submit their unresolved bargaining disputes to binding arbitration. The NMB asked the Railroad for comments on BLET's proposal for arbitration.

Burley rejected the request for arbitration as premature. He acknowledged that the primary issue was the Railroad's proposal to eliminate the crew consist rule, which required the railroad to assign a union conductor to all freight trains. Because the parties' collective bargaining agreement covering locomotive engineers—the Engineer Agreement—had allowed the Railroad to operate a train manned with only an engineer since 1993, the Railroad wished to revise the Trainmen Agreement to remove the requirement that a conductor must be assigned to...