Brotherhood of Locomotive Engineers v. Atchison, Topeka and Santa Fe Ry. Co.

• Decision Date: 26 July 1985
• Docket Number: No. 84-3177,84-3177
• Citation: 768 F.2d 914
• Parties: 120 L.R.R.M. (BNA) 3022, 103 Lab.Cas. P 11,610 BROTHERHOOD OF LOCOMOTIVE ENGINEERS, Plaintiff-Appellant, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, and United Transportation Union, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 914

768 F.2d 914

120 L.R.R.M. (BNA) 3022, 103 Lab.Cas. P 11,610

BROTHERHOOD OF LOCOMOTIVE ENGINEERS, Plaintiff-Appellant, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, and United Transportation Union, Defendants-Appellees.

No. 84-3177.

United States Court of Appeals Seventh Circuit.

Argued May 30, 1985.

Decided July 26, 1985.

Harold A. Ross, Ross & Kraushaar Co., L.P.A., Cleveland, Ohio, for plaintiff-appellant.

John J. Naughton, Henslee Monek & Henslee, Chicago, Ill., for defendants-appellees.

Before WOOD and POSNER, Circuit Judges, and WEIGEL, Senior District Judge. ^*

POSNER, Circuit Judge.

The Brotherhood of Locomotive Engineers sued the Atchison, Topeka and Santa Fe Railway, lost, and appeals, presenting us with interesting questions under the Railway Labor Act.

In the glory days of the railroads, generally a worker became a locomotive engineer by promotion from the ranks of the firemen after having been a fireman for at least three years, and his seniority as an engineer dated from the promotion, not from when he had become a fireman. His seniority as a fireman, of course, dated from when he had become a fireman, and this was sometimes important, because in slack periods an engineer might be demoted to fireman, and whether there was a job for him as a fireman might depend on how much seniority he had as a fireman. When an engineer was hired either from another railroad or from another seniority district of the same railroad, where (in either case) he had been an engineer, his seniority as an engineer with the new railroad or in the new district was based on his first service as an engineer. Thus he lost none of his seniority as an engineer because of the change of employer or district.

All this was spelled out, so far as the Santa Fe was concerned, in Article XIX of its collective bargaining agreement with the engineers' union, a provision that goes back to 1919 or earlier but is in the current agreement. Until 1972 the Santa Fe's collective bargaining agreement with the firemen's union, the United Transportation Union, had an identical provision. A fireman or engineer can join either union. See 45 U.S.C. Sec. 152 Eleventh (c).

With the replacement of steam locomotives by diesels, firemen became superfluous, and their retention in the cabs of diesel locomotives was a prime example of the featherbedding that plagued the railroad industry for so many years; for general background see Leiter, Featherbedding and Job Security 70-100 (1964). Congress established a special arbitration board to resolve the problem of supernumerary firemen, see Pub.L. 88-108, Aug. 28, 1963, 77 Stat. 132, and the board authorized the railroads to eliminate firemen from about 90 percent of all freight crews. As a result of this award and subsequent negotiations, firemen today are essentially just apprentice engineers. The new status of firemen was defined in an agreement that the railroads, including the Santa Fe, made with the firemen's union in 1972. This is the UTU Training Agreement. Article II.A.2 of this agreement provides that "no employee, not previously qualified, shall be eligible to be promoted to the craft of locomotive engineer, without first entering the service as fireman (helper) and completing the training set forth herein." Article II.E provides that "if a junior fireman (helper) is promoted out of turn, such junior fireman (helper) will rank below any senior fireman (helper) as an engineer, when such senior fireman (helper) completes the program and is given a certificate as an engineer, unless agreements on an individual Carrier provide otherwise."

An unanticipated consequence of the reduction in the number of firemen was a shortage of firemen to promote to engineers. By 1977, engineers on the Santa Fe were complaining that they were working too hard. The Santa Fe responded by hiring from other railroads, or transferring from its other seniority districts, a number of engineers whom it initially designated as firemen and then after a few weeks or months of training redesignated as engineers. It gave them seniority as engineers from the date of the redesignation, not the date of their first service as engineers. A short time later the railroad promoted some firemen to engineer but gave them seniority as engineers as of the date they had been hired as firemen. This put them ahead of the "hired" engineers (meaning hired from previous jobs as engineers, rather than promoted from fireman) on the seniority roster, since on average the promoted firemen had been working as firemen (i.e., apprentice engineers) for 15 to 18 months before their promotion. The Santa Fe did this in purported reliance on the provisions of the UTU Training Agreement quoted earlier. Article II.A.2 it interpreted as requiring it to hire "hired engineers" as firemen, and Article II.E as requiring it to place them in the seniority roster below more senior firemen as soon as the latter became engineers. The engineers' union argued, however, that this practice violated Article XIX of its agreement with the Santa Fe, which the engineers' union considers one of the agreements referred to in Article II.E of the UTU Training Agreement, and which as mentioned makes the seniority date of a "hired engineer" the date of his first service as an engineer. Although the Santa Fe's practice of treating hired engineers as firemen and putting them below subsequently promoted but more senior firemen first became controversial in 1978 when the Santa Fe did a lot of hiring, apparently the railroad had been following the practice since at least 1973, the year after the signing of the UTU Training Agreement.

The railroad and the engineers' union are also at loggerheads over whether a fireman who passes his examination for promotion to engineer before a more senior fireman does, because the latter, though entitled by his seniority to be examined first, flunks the exam and has to take it over, should nevertheless be put behind the more senior fireman on the seniority roster when the latter finally passes the exam and becomes an engineer. The firemen and Santa Fe say "yes," relying on Article II.E of the training agreement, which requires that the seniority of firemen be preserved when they become engineers. The engineers' union says "no," relying again on Article XIX of its agreement, which makes an engineer's seniority as engineer depend on when he first became an engineer, not when he first became a fireman.

The engineers' union filed a grievance against the Santa Fe, alleging that the railroad was violating Article XIX. The grievance eventually was referred to a panel of arbitrators, called a "Public Law Board." This is an optional method, see section 7 First of the Railway Labor Act, 45 U.S.C. Sec. 157 First; 10 Kheel, Labor Law Sec. 50.06, at pp. 50-37 to 50-38 (1985), for resolving what are called in the trade "minor disputes," defined as "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." 45 U.S.C. Sec. 153 First (i). The firemen's union intervened in the arbitration. The issue put to the panel was as follows: "Under the provisions of Article 19 of the BLE Agreement, is the Carrier properly establishing the seniority of engineers upon their promotion?" Without answering this question directly, the panel, over the dissent of the member representing the engineers' union, rejected the grievance. It said, "Since firemen (helpers) are no longer a viable craft entity, the purpose and reason for Article 19 do not exist. Today firemen, with rare exceptions, are apprentice engineers. The question then as to which engine service organization would supply, train and promote apprentice engineers was definitively answered in July 1972, with the execution of the UTU [Training Agreement].... BLE Article 19 became obsolete.... Since July 1972 the Carrier has only hired or transferred employees as firemen, and thereafter their devolution into engineers has been governed by the 1972 [agreement]." The panel found "substantial evidence in the record to show that the BLE accepted and operated under the terms of the 1972 [agreement] for several years."

The engineers' union then brought this suit, for both damages and injunctive relief, against the Santa Fe; later the firemen's union became a defendant also. Count I of the complaint bases federal jurisdiction on 28 U.S.C. Secs. 1331 and 1337, and seeks primarily to enjoin the Santa Fe from violating Article XIX of the engineers' agreement on the ground that by doing so the railroad is violating section 2 First of the Railway Labor Act, which imposes a duty to bargain in good faith, and section 6, which requires advance notice of any unilateral change in working conditions. 45 U.S.C. Secs. 152 First, 156. Count II of the complaint bases jurisdiction on section 3 First (q) of the Act, which empowers a federal district court to set aside an arbitration award "for failure ... to comply with" the Act, "for failure of the [award] to conform, or confine itself, to matters within the scope of the [panel's] jurisdiction, or for fraud or corruption by" an arbitrator. 45 U.S.C. Sec. 153 First (q).

All parties moved for summary judgment. The district judge dismissed Count I for lack of subject-matter jurisdiction. Regarding Count II, he decided that the arbitration panel had exceeded its jurisdiction. But rather than setting aside the arbitration award he ordered the complaint dismissed in its entirety, on the ground that the National Mediation Board had exclusive jurisdiction over the dispute between the engineers' union and the Santa Fe because it was a dispute "as to who are the representatives of such employees." 45 U.S.C. Sec. 152 Ninth. The engineers' union has appealed.

While agreeing with the district judge that the complaint should be...