Consolidated Rail Corp. v. United Transp. Union, Civil Action No. 95-5228.

• Citation: 947 F.Supp. 168
• Decision Date: 19 November 1996
• Docket Number: Civil Action No. 95-5228.
• Parties: CONSOLIDATED RAIL CORP. v. UNITED TRANSPORTATION UNION, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

947 F.Supp. 168

CONSOLIDATED RAIL CORP. v. UNITED TRANSPORTATION UNION, et al.

Civil Action No. 95-5228.

United States District Court, E.D. Pennsylvania, Civil Division.

November 19, 1996.

Robert S. Hawkins, Pepper, Hamilton & Scheetz, Philadelphia, PA, for Plaintiff.

G. Sander Davis, Davis and Myers, Philadelphia, PA, Norton N. Newborn, Norton N. Newborn Co., Cleveland, OH, for United Transportation Union General Committee of Adjustment (PRR).

Allan J. Sagot, Philadelphia, PA, Lawrence M. Mann, Alper and Mann, P.C., Washington, D.C., Emil Di Nardo, Di Nardo, Di Nardo and Lukasik, Buffalo, NY, for Jack Arnold, Vice General Chairman, General Committee of Adjustment (PRR), United Transportation Union, Local 1418, Ron Souder, Local Chairman.

MEMORANDUM

BARTLE, District Judge.

Plaintiff Consolidated Rail Corporation ("Conrail") has brought this action against certain labor unions and their leaders for instituting and threatening strikes or work stoppages over "minor disputes" in violation of the Railway Labor Act, 45 U.S.C. §§ 151-188. Conrail prays for declaratory and injunctive relief. It also seeks damages it allegedly incurred in connection with the strike of June 8, 1995.

Before the court is the renewed motion of defendants Jack Arnold ("Arnold"), United Transportation Union Local 1418 ("Local 1418), and Ron Souders ("Souders") to dismiss the second amended complaint¹ or in the alternative to stay the proceedings. Although the defendants seek to dismiss or stay the entire action, their motion focuses on the only dispute for which Conrail seeks damages, the June 8, 1995 strike. Specifically, the defendants contend that § 10 of the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. § 20109, requires that this court defer in the first instance to the National Railroad Adjustment Board ("NRAB") with respect to that strike. Conrail's cross-motion for partial summary judgment on the defendants' affirmative defense under the FRSA is also pending.²

According to the second amended complaint, the defendants instigated a series of unlawful strikes, threatened strikes, and work stoppages over a multi-year period at Conrail's Conway Yard in Conway, Pennsylvania. The incident which spurred the present motion occurred on June 8, 1995, when certain members of Local 1418 working at the Conway Yard struck for approximately two hours. In their present motion, submitted after the close of discovery, the defendants now specifically assert that the strike was called to protest hazardous conditions at the Conway Yard. Specifically, they claim that imminent danger of death or serious injury existed because of the presence of multitudinous rats, rat carcasses, and rat burrows. They support their assertion with at least five depositions which discuss in some detail the alleged rat infestation and with several contemporaneous documents which confirm the existence of a rodent problem.

Conrail maintains that the June 8, 1995 strike was impermissible as it concerned a "minor dispute." Railroad employees may not strike over minor disputes, which must be submitted to compulsory arbitration. See Conrail v. Railway Labor Executives' Ass'n, 491 U.S. 299, 303-04, 109 S.Ct. 2477, 2480-81, 105 L.Ed.2d 250 (1989); Pittsburgh & Lake Erie R.R. Co. v. Railway Labor Executives' Ass'n, 491 U.S. 490, 513, 109 S.Ct. 2584, 2598, 105 L.Ed.2d 415 (1989); Gen. Comm. of Adj., United Transp. Union v. CSX R.R. Corp., 893 F.2d 584, 591 (3d Cir.1990). Conrail argues that the strike had nothing to do with safety but instead was called to protest the possibility of disciplinary action against a Conrail employee. Conrail suggests that safety could not have been the real issue since the strike was called off within a few hours — well before any of the allegedly dangerous conditions could have been rectified. In sum, it is the position of Conrail that the issue of safety is simply being used as a pretext for an otherwise illegal strike.

The defendants counter that this case is covered by the FRSA and that under the FRSA any questions regarding the validity of their safety concerns must be resolved by the NRAB, not this court. Conrail responds that even if the strike did concern safety, the FRSA does not apply because the defendants disregarded that statute's procedural requirements.

The FRSA, enacted in 1970, strives to "promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. This concern for safety extends to railroad employees as well as to railroad passengers. After the FRSA's passage, however, it came to Congress' attention that railroad workers who complained about safety conditions often suffered harassment, retaliation, and even dismissal. See Federal Railroad Safety Authorization Act of 1980, Pub.L. No. 96-423, reprinted in 1980 U.S.C.C.A.N. 3830, 3832. In 1980, Congress attempted to rectify this situation by passing § 10 of the FRSA.³ The goal of § 10 was to end "discrimination against an employee for, among other things, reporting such [safety] violations." Id. The employee protection section of the FRSA reads in pertinent part as follows:

(b) Refusing to work because of hazardous conditions — (1) A railroad carrier engaged in interstate or foreign commerce may not discharge or in any way discriminate against an employee for refusing to work when confronted by a hazardous condition related to the performance of the employee's duties, if —

(A) the refusal is made in good faith and no reasonable alternative to the refusal is available to the employee;

(B) a reasonable individual in the circumstances then confronting the employee would conclude that —

(i) the hazardous condition presents an imminent danger of death or serious injury; and

(ii) the urgency of the situation does not allow sufficient time to eliminate the danger through regular statutory means; and

(C) the employee, where possible, has notified the carrier of the hazardous condition and the intention not to perform further work unless the condition is corrected immediately.

(2) This subsection does not apply to security personnel employed by a carrier to protect individuals and property transported by railroad.

49 U.S.C. § 20109. The Act also provides for the NRAB to resolve these disputes:

(c) Dispute resolution — A dispute, grievance, or claim arising under this section is subject to resolution under section 3 of the Railway Labor Act (45 U.S.C. 153). In a proceeding by the National Railroad Adjustment Board, a division or delegate of the Board, or another board of adjustment established under section 3 to resolve the dispute, grievance, or claim, the proceeding shall be expedited and the dispute, grievance, or claim shall be resolved not later than 180 days after it is filed. If the violation is a form of discrimination that does not involve discharge, suspension, or another action affecting pay, and no other remedy is available under this subsection, the Board, division, delegate, or other board of adjustment may award the employee reasonable damages, including punitive damages, of not more than $20,000.

Id. This dispute resolution mechanism is mandatory. When Congress added the employee safety provisions in 1980, it intended that they were to be enforced "solely through the existing grievance procedures provided for in Section 3 of the Railway Labor Act, including the Adjustment Board [and] its divisions...." H.R.Rep. 1025, 96th Cong.2d Sess. 4 (1980), reprinted in 1980 U.S.C.C.A.N. 3830, 3832. The present dispute concerns the applicability of these grievance procedures to the June 8, 1995 strike.

This case does not present the typical employee protection situation contemplated by Congress. The language and legislative history of the FRSA envision a worker refusing to work because of what he or she perceives to be a hazardous condition presenting an "imminent danger of death or serious injury" and then facing retaliation by the railroad through docking of pay, transfer to an unfavorable work assignment, or dismissal. 49 U.S.C. § 20109(b)(B)(i). If the railroad takes such adverse action, the worker may seek relief from the NRAB, which has the power to award damages if the worker's complaint is valid.

There is no contention in the present action that any workers were disciplined as a result of the June 8, 1995 strike. Rather, the defendants first raised the issue of the FRSA and the need for NRAB resolution in their first motion to dismiss or stay the action filed some three months after the strike ended. Moreover, the defendants who seek a stay are not working railroad employees who have been disciplined. In contrast, they are officers of the local and international unions as well as the local union itself, which is an unincorporated association of all its members. See, e.g., United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 383-86, 42 S.Ct. 570, 573-75, 66 L.Ed. 975 (1922). If one accepts the defendants' argument that the June 8, 1995 strike was premised on safety concerns, Conrail's lawsuit fairly could be characterized as retaliation against the union, and hence its members, for engaging in protected activity at the Conway Yard. Such retaliation, if it occurred, would violate § 10 of the FRSA, which is designed to prevent workers from loss or penalty for refusing to work because of hazardous conditions. See 49 U.S.C. § 20109. If the FRSA thereby is implicated, this dispute rightfully should be in front of the NRAB, not this court.

The First Circuit has addressed the interplay between a district court and the NRAB in a factually similar case. In Boston and Maine Corp. v. Lenfest, 799 F.2d 795 (1st Cir.1986), cert. denied, 479 U.S. 1102, 107 S.Ct. 1333, 94 L.Ed.2d 184 (1987), railroad workers of the Boston and Maine Corporation ("B & M") complained that the flagging signals along the B & M tracks were inadequate, causing a dangerous condition. This was brought to the attention of ...