Bhd. of Maint. of Way Employes Div./IBT v. Nat'l R.R. Passenger Corp., Civil Action No.: 16-1109 (RC)

• Decision Date: 16 November 2016
• Docket Number: Civil Action No.: 16-1109 (RC)
• Citation: 217 F.Supp.3d 249
• Parties: BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION/IBT, et al., Plaintiffs, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant.
• Court: U.S. District Court — District of Columbia

217 F.Supp.3d 249

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION/IBT, et al., Plaintiffs,

v.NATIONAL RAILROAD PASSENGER CORPORATION, Defendant.

Civil Action No.: 16-1109 (RC)

United States District Court, District of Columbia.

Signed November 16, 2016

Richard S. Edelman, Mooney, Green, Saindon, Murphy & Welch, P.C., Washington, DC, for Plaintiffs.

Jonathan C. Fritts, Lincoln O. Bisbee, Morgan, Lewis & Bockius LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

GRANTING DEFENDANT'S MOTION TO DISMISS, DENYING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiffs, the Brotherhood of Maintenance of Way Employes Division/IBT and the Brotherhood of Railroad Signalmen (collectively "the Unions") seek a preliminary injunction against Defendant National Railroad Passenger Corporation ("Amtrak"), alleging that it unilaterally implemented new rules that changed working conditions in violation of the statutory "status quo" period required by 45 U.S.C. § 156. See Am. Compl., at 1, ECF No. 2; Pls.' Mot. for Prelim. Inj., at 2, ECF No. 4. The Unions and Amtrak are parties to collective bargaining agreements governing pay rates, rules, and working conditions. Am. Compl. ¶ 8. The Unions take issue with Amtrak's unilateral installation of "a video and audio surveillance system with inward and outward facing cameras and audio recording used in vehicles used by [Union employees] and supervisors." Am. Compl. ¶ 13. The Unions allege that the implementation of this system violates Section 6 of the Railway Labor Act ("RLA"), 45 U.S.C. § 156. Am. Compl. ¶ 23. Congress, however, has extended jurisdiction to the federal courts under Section 6 only in cases of "major disputes," which concern the creation of new contractual rights. Because the dispute over the installation of the video and audio system arguably concerns the interpretation of existing contractual rights rather than the creation of new contractual rights, it is a "minor dispute." Consequently, the Court lacks subject-matter jurisdiction and must grant Amtrak's Motion to Dismiss.

II. FACTUAL BACKGROUND

A. The Collective Bargaining Agreements

Amtrak is a rail carrier system partially funded by the federal government. Am. Compl. ¶ 3. The Unions represent a group of Amtrak employees responsible for constructing, repairing, and maintaining Amtrak's track, right-of-way, and other structures, and a group of employees responsible for installing and maintaining Amtrak's signaling systems. Id. ¶¶ 6–7. Amtrak and the Unions are parties to collective bargaining agreements (CBAs) that govern rates of pay, rules, and working conditions. Id. ¶ 8. The CBAs contain "moratorium" provisions, which restricted the ability of the parties to seek changes to the rates of pay, rules, and working conditions through the end of 2014. Id. ¶ 9. Since the beginning of 2015, the parties have negotiated several proposed changes to employee compensation and working conditions. Id. ¶¶ 10–12.

1. Express Provisions

Each plaintiff has an identical "System Safety Agreement" with Amtrak that begins with the following introduction: "Amtrak and the [Union] are committed to a safe and healthful work environment, free from intimidation and harassment, that meets or, where possible, exceeds all applicable Local, State [,] and Federal Safety standards and to ensuring compliance with Amtrak's Safety Rules." See Def.'s Mot. to Dismiss, Ex. 2, at 6, ECF No. 8-4; Def.'s Mot. to Dismiss, Ex. 3, at 8, ECF No. 8-5. The Safety Agreements proceed to outline procedures for training, workplace safety, accident reporting and investigation, and other safety-related procedures. See Def.'s Mot. to Dismiss, Ex. 2, at 6–14; Def.'s Mot. to Dismiss, Ex. 3, at 8–16. Under the heading "Work Place Safety," the Agreements state that the parties will "use their best efforts to ensure that ... Amtrak safety rules are properly applied." See Def.'s Mot. to Dismiss, Ex. 2, at 9;¹ Def.'s Mot. to Dismiss, Ex. 3, at 11. That same section provides that it is not a violation of the CBA for employees to refuse to start work when any such law or rule is broken. See Def.'s Mot. to Dismiss, Ex. 2, at 9; Def.'s Mot. to Dismiss, Ex. 3, at 11. There is no express provision in the CBA that provides for how "Amtrak Safety Rules" are promulgated. The Agreements further provide that Amtrak "shall establish full time [Union] Safety Liaison positions," and that the Union Safety Liaisons are responsible for "[d]etermin[ing] through observation that employees are complying with safe work practices."See Def.'s Mot. to Dismiss, Ex. 2, at 12; Def.'s Mot. to Dismiss, Ex. 3, at 14. The Safety Liaisons' observations cannot be used to "initiate discipline." See Def.'s Mot. to Dismiss, Ex. 2, at 12; Def.'s Mot. to Dismiss, Ex. 3, at 14.

2. Past Practices

To monitor its fleet of over 300 trains and almost 3,000 "fleet vehicles," "Amtrak has robust safety and asset management programs" in place. See Decl. of Michael Logue, Def. Mot. to Dismiss, Ex. 4, at ¶¶ 2–4, ECF No. 8-6. It does so in part to guard against the unsafe use of the vehicles, which can result in injuries, death, and significant loss to Amtrak. See id. ¶ 4–5. The procedures have been implemented unilaterally by Amtrak, and many of them are outlined in the Amtrak Policy and Instruction Manual, which is available to employees online. See Decl. of Susan K. Reinertson, Def. Mot. to Dismiss, Ex. 5, at ¶ 5, ECF No. 8-7. The Unions have been aware of the use of certain surveillance technologies to some extent. See Decl. of Sharon Jindal, Def. Mot. to Dismiss, Ex. 1, at ¶¶ 29, 31–33, ECF No. 8-3.

a. Video Monitoring

Without express grounding in a CBA, Amtrak has used cameras and other employee-monitoring equipment in the past. In fact, "[a]ll employees encounter video monitoring at some point in their workdays, many for the entirety of their workdays." See Decl. of Susan K. Reinertson, Def. Mot. to Dismiss, Ex. 5, at ¶ 6. This monitoring has existed for years and has been implemented by Amtrak management. Id. ¶ 5. Amtrak uses video surveillance for "safety and security" in public and restricted areas. Id. ¶¶ 6–7. Video monitoring exists in "stations, bases, maintenance facilities, tracks, bridges, tunnels, power stations, substations, yards, right-of-way shelters, and parking lots." Id. ¶ 7. This surveillance can be used in court proceedings and for "other bona fide use[s]," including employee discipline. Id. ¶¶ 11, 13. The Unions allege that they understood the existing video surveillance to be only used for safety purposes and to have been "generally paid for by the ... Department of Homeland Security." See Second Decl. of David Ingersoll, Pls.' Memo. Opp. to Def. Mot. to Dismiss, Ex. 2, at ¶ 3, ECF No. 13-2. They also contend that most of the existing cameras are installed in areas where Union employees do not usually work. See Decl. of Jed Dodd, Pls.' Memo. Opp. to Def. Mot. to Dismiss, Ex. 1, at ¶ 7, ECF No. 13-1. Although the Unions have known that surveillance technology can be used for employee discipline, see Decl. of Sharon Jindal, Def. Mot. to Dismiss, Ex. 1, at ¶ 33, the Unions contend that it has only been used in isolated cases. See Second Decl. of Jed Dodd, Pls.' Memo. Opp. to Def. Mot. to Dismiss, Ex. 1, at ¶ 12.

b. Time Entry Devices ("TED Units")

Since 2006, Amtrak has used cameras to photograph the faces of employees when they use their electronic information cards to access employee-only areas. See Decl. of Ronald R. Nies, Def. Mot. to Dismiss, Ex. 7, at ¶¶ 3–5, ECF No. 8-9; Def. Mot. to Dismiss, Ex. 8, ECF No. 8-10. The information collected can be used to discipline employees for misusing the time-entry system. See Decl. of Ronald R. Nies, Def. Mot. to Dismiss, Ex. 7, at ¶ 5. The Unions contend that Amtrak never told them that the system could be used for discipline. See Decl. of Jed Dodd, Pls.' Memo. Opp. to Def. Mot. to Dismiss, Ex. 1, at ¶ 8. However, at least one employee and member of a Union has been "reprimand[ed] after ... [being] captured on camera tampering with a TED unit."See Decl. of Sharon Jindal, Def. Mot. to Dismiss, Ex. 1, at ¶ 33.

c. GPS Monitoring

To record mileage, speed, and location of Amtrak vehicles, Amtrak also uses GPS monitoring. See Decl. of Stephen Kendrick, Def. Mot. to Dismiss, Ex. 10, at ¶ 3, ECF No. 8-12. The GPS units "collect[ ] data on the following metrics: location; speed; path (with the ability to play the path on a map); the time period the machine was running; the time period the machine was moving; the time period the machine idled; and the locations where the machine stopped and the duration of each stop." Id. ¶ 4. The GPS data can be used in employee investigations and discipline. See id. ¶ 5.

B. The Dispute at Issue

Amtrak is in the process of installing what the Unions call "a video and audio surveillance system with inward and outward facing cameras and audio recording equipment used in vehicles used by [Union employees] and supervisors." See Am. Compl. ¶ 13. This "DriveCam" system can be used for "coaching" and employee discipline. See Decl. of Jed Dodd, Pls.' Mot. for Prelim. Inj., Ex. 1, at ¶ 19, ECF No. 5-1. The "Video Event Recorders" (VERs) capture video only if "an irregular event triggers recording."² See Decl. of Michael Logue, Def. Mot. to Dismiss, Ex. 4, at ¶¶ 7, 14. When such an event triggers recording, the DriveCam captures twelve total seconds of audio and video—eight before the event, and four after—and sends it to an outside organization that reviews it, and, if it meets a "threshold of concern," sends it to Amtrak. See id. ¶¶ 15–18. No one can access DriveCams for live monitoring, and Amtrak cannot remotely trigger recording. Id. at 20–21. In total, the system saves about five minutes of recording per vehicle per month. Id. ¶ 23. This is the only form of audio monitoring Amtrak has ever used. See Second Decl. of David Ingersoll, Pls.' Memo. Opp. to Def. Mot. to Dismiss, Ex....