General Committee of Adjustment v. Burlington Northern, Inc., 76-1910

Decision Date19 October 1977
Docket NumberNo. 76-1910,76-1910
Citation563 F.2d 1279
Parties96 L.R.R.M. (BNA) 2754, 82 Lab.Cas. P 10,184 GENERAL COMMITTEE OF ADJUSTMENT, United Transportation Union E., Burlington Northern, Inc., Great Northern Segment, Appellant, v. BURLINGTON NORTHERN, INC., and Brotherhood of Locomotive Engineers, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Patrick J. Foley, Billings, Mont.

Barry McGrath, St. Paul, Minn., and Harold A. Ross, Cleveland, Ohio, filed briefs and argued orally for Burlington Northern, Inc; Robert V. Atmore, Minneapolis, Minn., on brief for Brotherhood of Locomotive Engineers.

Before CLARK, Associate Justice, Retired, * MATTHES, Senior Circuit Judge, and HEANEY, Circuit Judge.

HEANEY, Circuit Judge.

The United Transportation Union E. (UTU-E) appeals from an order of the United States District Court for the District of Minnesota granting a summary judgment in favor of the Burlington Northern, Inc., (BNI) granting the motion of the Brotherhood of Locomotive Engineers (BLE) to dismiss the plaintiff's complaint and denying UTU-E's motion for a summary judgment. The effect of the District Court's orders was to hold that the wage disputes involving locomotive engineers employed by the BNI and arising under the Merger Protective Agreement between the bargaining representative of the locomotive engineers and the BNI were to be determined by a BNI-BLE Disputes Committee rather than a Public Law Board established pursuant to the Railway Labor Act or a UTU-E-BNI Disputes Committee.

The underlying facts are briefly stated. Historically, the railroads have recruited locomotive engineers from the locomotive firemen. As a fireman gains seniority, he is exposed to the skills of an engineer. After a certain period, he is examined on his engineering capabilities. If qualified, he becomes eligible for promotion to engineer while retaining his position as a fireman. He is placed on the engineer seniority roster but also retains his position on the fireman seniority roster. With the fluctuating demand for engineers, the employees low on the engineer seniority list "ebb and flow" between positions as engineer and fireman.

The BLE for many years has been the bargaining representative for the locomotive engineers working on the BNI. Similarly, the UTU-E has been the bargaining representative for the locomotive firemen.

Prior to the merger creating the BNI, the component carriers entered into employee protective and merger agreements with both the BLE and the predecessor of the UTU-E. These agreements provided for the preservation of employment, the guarantee of monthly earnings and the consolidation of seniority rosters and districts on the merged carriers. Subsequently, the railroads and the unions entered into implementation agreements to effectuate the employee protective and merger agreements.

The Interstate Commerce Commission granted the merger applications creating the BNI. It required that the provisions of the protective agreements be implemented and applied to all employees. The Supreme Court subsequently approved the merger.

This litigation arose when the work week for engineers employed by the BNI in Canada was reduced from six days to five days and the wage guarantees provided to engineers were affected. The engineers affected by the work shrinkage disputed the application of the transition factor used to calculate the wage guarantees. The engineers disputing this transition factor were members of both the UTU-E and the BLE. They asked the UTU-E to process their grievance. The UTU-E undertook the responsibility but was unable to resolve the dispute with the BNI. Thereafter, it asked that a UTU-E-BNI Special Board of Adjustment (SBA No. 793) be convened to determine the merits of the matter. The BNI objected, arguing that the SBA No. 793 lacked jurisdiction to hear the dispute. It agreed, however, to submit the jurisdictional issue to the SBA No. 793. The UTU-E similarly agreed. The issue submitted to the Board was:

Pursuant to the Interstate Commerce Act, the Railway Labor Act and Special Board of Adjustment No. 793's Agreement dated May 24, 1972, it is the UTU's position that it may refer, present and receive an award from Board No. 793 on any merger related dispute involving one or more of its member's claims and/or grievances while they are in the category of a locomotive engineer and subject to the BLE merger agreement on the BNI, and based on the so-called third party interest of providing BLE with the right to a written interpretation to Board 793's members.

Is the position of UTU correct in part or whole?

The Special Adjustment Board held:

Taking then as it finds them, the UTU (E) Merger Protective Agreements and the May 24, 1972 Agreement, under the authority of which this Board functions, Special Board of Adjustment No. 793 cannot find that its jurisdiction and authority extends to the interpretation and application of the provisions of the BNI-BLE Merger Protective Agreement or implementing agreements entered into between BNI and BLE to engineers who happen to be members of UTU(E). Accordingly, the question at issue here must be answered in the negative.

The UTU-E representative on the Board dissented.

Thereafter, the UTU-E requested the BNI to establish a Public Law Board pursuant to the Railway Labor Act, 45 U.S.C. § 151 et seq. The BNI rejected the request. It served notice that it was submitting the claims of the engineers to the BNI-BLE Disputes Committee even though the employees had submitted no claims to the BLE.

The UTU-E then brought action in the United States District Court for the District of Minnesota. It sought to enjoin the BNI from proceeding with the submission of the claimants' dispute to the BNI-BLE Disputes Committee and to require the BNI to submit the dispute to a Public Law Board pursuant to the provisions of the Railway Labor Act.

The District Court held:

The UTU-E's contention that the BN has discriminated against it with respect to grievance representation is without merit. * * * (T)he BN has conceded from the start that the UTU-E has the right to represent these engineers before the BN-BLE Disputes Committee if it so desires. * * * (McElroy v. Terminal Railroad Association of St. Louis, 392 F.2d 966 (7th Cir.), cert. denied, 393 U.S. 813, 89 S.Ct. 83, 21 L.Ed.2d 89 (1968)) does not require that the BN submit this dispute to a board upon which the UTU-E has representation. * * *

The real issue * * * (is) which board under either the merger agreements or by statute has jurisdiction to consider the claims raised by these Canadian engineers. * * * In reaching a determination of this question, the Court must be mindful that the UTU-E's own Disputes Committee, a duly authorized arbitrator under the BN-UTU-E Merger Protective Agreement, held that the BN-BLE Disputes Committee was the proper forum to determine these issues.

The question as to whether a Public Law Board is the proper forum to determine these issues has been addressed by the Court of Appeals for the Eighth Circuit. In Brotherhoood of Locomotive Engineers v. North Western Railway Co., 314 F.2d 424 (8th Cir. 1963), the Court held the arbitration procedure adopted by the parties pursuant to a merger agreement approved by the ICC took precedence over the arbitration provisions contained in the Railway Labor Act. Id., 314 F.2d at 433. On the basis of this decision it is clear that the plaintiff's request for the establishment of a Public Law Board pursuant to the Railway Labor Act, 45 U.S.C. § 151 et seq. is without merit. * * * The BN-UTU-E's Disputes Committee, Special Board No. 793, has already concluded that the proper forum for the resolution of these claims is the BN-BLE Disputes Committee. Given the limited powers of a court to review an arbitration decision, it is clear that the decision of the BN-UTU-E Disputes Committee is dispositive of this litigation.

The Court's role in reviewing an arbitration decision is limited solely to determining whether the decision "draws its essence from the collective bargaining agreement." United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960) * * *. Viewing the decision of Special Board No. 793 in light of this standard, it is clear that its decision must be upheld. The essence of the BN-UTU-E Merger Protective Agreement is that it applies solely to firemen and enginemen, not to engineers. Therefore, Special Board No. 793 correctly determined that it had no jurisdiction to consider engineers' claims arising out of wage guarantees contained in the BN-BLE Merger Protective Agreement and that the resolution of such claims resided exclusively in the province of the BN-BLE Disputes Committee.

General Committee of Adjustment, United Transportation Union E., Burlington Northern, Inc., Great Northern Segment v. United States of America and Burlington Northern, Inc., et al, No. Civ. 4-75-444 (Lord, J., Order, July 19, 1976).

The UTU-E challenges the trial court's holding on several grounds. It initially contends that the court erred in upholding SBA No. 793's decision on the jurisdictional issue. We find little merit to this contention. Ordinarily, the question of whether an arbitration board has jurisdiction to decide a dispute is to be determined by the courts. Operating Engineers v. Flair Builders, Inc., 406 U.S. 487, 491-492, 92 S.Ct. 1710, 32 L.Ed.2d 248 (1972); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-547, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); International U., U.A., A. & A. I.W. v. International T. & T., 508 F.2d 1309 (8th Cir. 1975). Here, however, the UTU-E consented to submit the jurisdictional issue to the Special Adjustment Board and, thus, is bound by the Board's decision. 1

The UTU-E next contends that the trial court gave the decision of Special Adjustment Board No. 793 a broader meaning than the Board intended. The...

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