General Committee of Adjustment, United Transp. Union E v. Burlington Northern, Inc., 79-1458

• Decision Date: 19 March 1980
• Docket Number: No. 79-1458,79-1458
• Citation: 620 F.2d 161
• Parties: 103 L.R.R.M. (BNA) 2990, 88 Lab.Cas. P 11,940 GENERAL COMMITTEE OF ADJUSTMENT, United Transportation Union E, Burlington Northern, Inc., Great Northern Segment, Appellant, v. BURLINGTON NORTHERN, INC., Brotherhood of Locomotive Engineers, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 161

620 F.2d 161

103 L.R.R.M. (BNA) 2990, 88 Lab.Cas. P 11,940

GENERAL COMMITTEE OF ADJUSTMENT, United Transportation Union E, Burlington Northern, Inc., Great Northern Segment, Appellant, v. BURLINGTON NORTHERN, INC., Brotherhood of Locomotive Engineers, Appellees.

No. 79-1458.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 6, 1979.

Decided March 19, 1980.

Patrick J. Foley, DeParcq, Anderson, Perl, Hunegs & Rudquist, Minneapolis, Minn., for appellant.

Barry McGrath, St. Paul, Minn., for appellee, Burlington Northern, Inc.

Harold A. Ross, Ross & Kraushaar, Cleveland, Ohio and Robert V. Atmore, Lindquist & Vennum, Minneapolis, Minn., filed brief for appellee Broth. of Locomotive Engineers.

Before HEANEY and HENLEY, Circuit Judges, and SCHATZ, District Judge. ^*

HEANEY, Circuit Judge.

This matter is before the Court for a second time. When it was first here, ¹ we made it clear that employees of Burlington Northern, Inc. (BNI), who are members of the United Transportation Union-E (UTU-E) working as engineers in the United States, have a right to have their merger-related disputes ² decided by a Public Law Board on which the UTU-E is represented. As we there stated:

The issue is an important one not only to the employees of the BNI who are members of the UTU-E but also to the Union itself. An aggrieved employee cannot help but feel that his interests in an arbitration proceeding will be better served if his union representative sits in on the closed door discussions that follow a presentation than if a representative of a union to which he does not belong or to which he has not entrusted the adjustment of his grievance has this privilege. Yet, the employee's position on the seniority roster may be such that it is important to him to maintain his membership in the UTU-E. Moreover, an employee may have strong personal feelings for wanting to maintain membership in the union of his choice and to have that union process his grievances, including those that may be merger-related.

The UTU-E is certain to be affected if it loses the right to sit as a member of arbitration panels adjusting merger-related grievances. Some firemen, who might otherwise choose the UTU-E, will join the BLE (Brotherhood of Locomotive Engineers) simply because they will want the most effective representation possible. The problem is compounded because the line between merger-related grievances and those arising out of collective bargaining agreements is one that cannot always be drawn with certainty.

Gen. Committee of Adjust. v. Burlington Northern, Inc., 563 F.2d 1279, 1284 (8th Cir. 1977).

We noted, however, that there was a conflict in the record as to whether the employees in question worked exclusively in Canada. The BNI asserted that such was the case. The Union took the position that at least one of the employees involved performed some work in Seattle, Washington. Id. at 1285-1286.

We also noted that the UTU-E presented evidence that a long-standing custom and practice existed between the UTU-E and the BNI and its predecessors under which the parties agreed that work performed in Canada would be subject to the dispute settlement provisions of the Railway Labor Act. The BNI took a contrary position. Id.

We then disposed of the issue raised with respect to work performed exclusively in Canada by holding that the right to have a Public Law Board created "does not extend to claims submitted by employees who perform the disputed work exclusively outside the territorial limits of the United States." Id. at 1286. We specifically left open the question of whether jurisdiction of a Public Law Board over such disputes can be conferred by custom and practice and whether such a custom and practice exists. Finally, we remanded the matter to the district court to determine the questions left open and to determine whether the disputed work was performed exclusively in Canada.

On remand, the UTU-E conceded for the first time that the engineers filing the claims are yard engineers working in BNI's Vancouver, British Columbia, yards and are employed exclusively in Canada. It presented evidence, however, that a long-standing custom and practice exists between the UTU-E and BNI to submit merger-related disputes involving employees who work exclusively in Canada to a Public Law Board created pursuant to the Railway Labor Act.

The trial court, relying on our opinion in United Transp. U. Loc. L. No. 31 v. St. Paul Union Depot Co., 434 F.2d 220 (8th Cir. 1970), cert. denied, 401 U.S. 975, 91 S.Ct. 1194, 28 L.Ed.2d 324 (1971), held that to establish a long- standing custom and practice, the conduct of the parties must encompass a continuity, interest, purpose and understanding which elevates a course of action to an implied contractual status. We find no error in this holding.

The trial court also found that

the evidence does not support UTU's contention that there has been a long-standing custom and practice to submit such disputes to a Public Law Board under the Railway Labor Act. The awards UTU cites are distinguishable on their facts as (1) involving disputes in connection with employees whose runs were international in scope involving a major portion of the route and time on the job within the United States, (2) involving a dispute under a collective bargaining agreement, the resolution of which would be the same in both countries under principles having application to working conditions common to both countries, or (3) involving a dispute where it was specifically agreed to by the parties that the matter should be arbitrated by a Public Law Board.

General Committee of Adjustment, etc. v. United States of America and Burlington Northern, Inc., Civ. 4-75-444, slip op. at 4 (D.Minn., May 17, 1979).

This finding, while open to question, is not clearly erroneous: (1) Fewer than ten disputes involving work performed in Canada have been submitted to Public Law Boards established pursuant...