RAILWAY LABOR EXEC. v. Wheeling & Lake Erie Ry. Co.

• Decision Date: 31 January 1991
• Docket Number: Civ. A. No. 90-0597-A.
• Citation: 756 F. Supp. 249
• Court: U.S. District Court — Eastern District of Virginia
• Parties: RAILWAY LABOR EXECUTIVES' ASSOCIATION, et al., Plaintiffs, v. WHEELING & LAKE ERIE RAILWAY CO., Defendants, and Norfolk & Western Railway, et al., Intervenors.

756 F. Supp. 249

RAILWAY LABOR EXECUTIVES' ASSOCIATION, et al., Plaintiffs, v. WHEELING & LAKE ERIE RAILWAY CO., Defendants, and Norfolk & Western Railway, et al., Intervenors.

Civ. A. No. 90-0597-A.

United States District Court, E.D. Virginia, Alexandria Division.

January 31, 1991.

John O'Brien Clarke, Jr., Fairfax, Va., for plaintiffs.

Timothy A. Harr, Washington, D.C., for defendants.

Jeffrey S. Berlin, Washington, D.C., and William P. Stallsmith, Jr., Norfolk, Va., for intervenors.

MEMORANDUM OPINION

ELLIS, District Judge.

This appears to be, in this Court at least, the final chapter in the Norfolk Southern System ("NS") spur line sale/lease saga. The Fourth Circuit Court of Appeals recently affirmed this Court's issuance of preliminary injunctive relief enjoining the labor plaintiffs¹ from engaging in self-help in violation of the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151 et seq. Following this, the Court granted summary judgment in favor of defendant Wheeling & Lake Erie Railway Co. ("Wheeling") and intervenors Norfolk & Western Railway Co., Norfolk Southern Railway Co.² and Norfolk Southern Corporation (referred to collectively as "NW") as to Count II of the complaint and Count I of the counterclaim.³ Thereafter, the Court denied the labor plaintiffs' Motion to Amend and Supplement the Complaint and Suggestion of Mootness as to the Original Complaint.⁴ Only issues concerning the proposed forms of a permanent injunction and declaratory judgment remain to be resolved. Specifically, the remaining issues are (1) whether the proposed permanent injunction infringes on the First Amendment rights of individual members of the labor plaintiffs; (2) whether the permanent injunction should extend to the Brotherhood of Railroad Signalmen ("BRS") and other unions that might in the future be certified as representatives of Wheeling employees; (3) whether the permanent injunction should bar the labor plaintiffs from striking all NS system carriers or merely those in a specific area; and (4) the term of the permanent injunction. This memorandum opinion addresses these issues.

I.

This saga's extensive facts need not be fully recounted here as they are set forth in opinions previously issued in this and a related case.⁵ In essence, Wheeling's predecessor-in-interest, the Wheeling Acquisition Corporation, acquired from N & W approximately 575 miles of rail lines and an additional 264 miles of trackage rights. The transaction was consummated on May 17, 1990, at which time, Wheeling first came into existence as a carrier. Prior to and after this time, the labor plaintiffs sought to require Wheeling and its predecessor to treat or bargain with the labor plaintiffs over the manner in which Wheeling would hire its employees and the terms and conditions of their employment. To this end, the labor plaintiffs, two weeks prior to the consummation of the transaction, filed the complaint in this action, seeking inter alia immediate injunctive relief to stop the sale. This effort failed because the RLA, the putative basis for such relief, applies only to "carriers" and Wheeling's predecessor was not a "carrier" as that term is defined under the RLA. See RLEA v. Acquisition Corp., 736 F.Supp. 1397 (E.D.Va.1990). Thereafter, Wheeling and the intervenors sought preliminary injunctive relief against the labor plaintiffs on the ground that strikes and self-help measures against the Norfolk system would violate the RLA in as much as the labor plaintiffs had not won the right to represent Wheeling's employees in accordance with RLA procedures. The labor plaintiffs' principal response was to contend that the National Labor Relations Act's "successorship doctrine"⁶ applied in this context to require Wheeling to bargain with labor plaintiffs. The Court granted preliminary injunctive relief in favor of Wheeling and the intervenors and rejected the labor plaintiffs' invitation to apply the successorship doctrine in the RLA context. See Railway Labor Exec. v. Wheeling & Lake Erie Ry., 741 F.Supp. 595 (E.D.Va.1990). The Fourth Circuit affirmed the grant of preliminary injunctive relief. See RLEA v. Wheeling & Lake Erie Ry., 914 F.2d 53 (4th Cir.1990). Although this Court squarely addressed and decided the successorship doctrine issue,⁷ the parties dispute whether the Fourth Circuit did so. Accordingly, labor plaintiffs filed a Motion to Amend and Supplement the Complaint and a Suggestion of Mootness as to the Original Complaint for the principal purpose of ensuring that the successorship doctrine issue would be squarely presented for appeal. The Court denied this motion, rejecting the labor plaintiffs' mootness contention⁸ and concluding that the proffered amendment was untimely and unnecessary.⁹ Thereafter, Wheeling and NW, at the Court's direction, submitted proposed forms for a permanent injunction and declaratory judgment, to which labor plaintiffs filed objections. These objections are treated here.

II.

Labor plaintiffs expressed concern that the Court's entry of a permanent injunction could impermissibly restrict the First Amendment rights of labor plaintiffs' members. This concern is unfounded. The Court of Appeals in this case has already held that while picketing is a form of speech protected by the First Amendment, it is appropriate to enjoin unions from picketing in furtherance of their representation dispute with Wheeling because such action would violate the RLA. Wheeling & Lake Erie Ry., 914 F.2d at 56. This holding of the Court of Appeals is fully consistent with the well-established principle that the First Amendment does not preclude the issuance of injunctive relief to prohibit unions from engaging in speech violative of the national labor laws.¹⁰ Thus, the permanent injunction entered by the Court in this matter does not infringe on labor plaintiffs' members First Amendment rights. To underscore this point, paragraph B of the injunction has been revised to include the statement that the injunction "shall not restrict the exercise of any right that is protected by the First Amendment from limitation by the Railway Labor Act or other statute...."

III.

One of the labor plaintiffs, the BRS, is now the representative of some fifteen signalmen employed by Wheeling. Unlike the other labor plaintiff unions, the BRS won a representation election held under the auspices of the National Mediation Board. This fact, labor plaintiffs contend, means that the permanent injunction should not preclude BRS from engaging in self-help in the future. This contention is correct only insofar as it refers to the right to engage in self-help over issues arising following certification; it is not persuasive with respect to the right to strike and seek self-help based on the original pre-certification representational dispute and the pre-certification Section 6 notices. BRS's certification by the National Mediation Board certainly confers on BRS the right to require Wheeling to bargain or to treat with it pursuant to Section 6 of the RLA, 45 U.S.C. § 156, with respect to issues that may arise and mature after BRS's certification. But to exclude BRS entirely from the injunction would suggest, incorrectly, that BRS can rely on its recent certification to resuscitate the pre-certification Section 6 notifications. Such reliance is inappropriate; the pre-certification Section 6 notices cannot be resuscitated as they were dead on arrival, i.e., they never became effective. From this, it follows that the pre-certification Section 6 notices imposed no status quo obligation on Wheeling and hence BRS has no legal right to exercise self-help against Wheeling for "violation" of such a non-existing obligation.¹¹ Omitting BRS from the injunction might also invite BRS to seek, by self-help means, to vindicate its view that the successorship doctrine operates in the RLA context.¹² Accordingly, inclusion of BRS in the injunction is appropriate provided, as is true here, that the permanent injunction makes clear that the BRS and any other unions that may be certified in the future will not be able to rely on their pre-certification conduct or notices as a basis for any future exercise of self-help under the RLA. Thus, the permanent injunction makes clear that it does not restrict any self-help rights that a labor plaintiff union may acquire following NMB certification. It makes equally clear that Wheeling is not relieved of any obligation it may have to bargain or treat with such a union with respect to such post-certification issues. The language that accomplishes this purpose appears at paragraph C, page 5, of the Permanent Injunction and reads as follows:

That this Injunction shall not excuse Wheeling from any duty under the RLA to treat with BRS, or any plaintiff union that may in the future be certified as the representative of some of Wheeling's employees, regarding matters that have arisen or may arise following the certification of each such union; and that this Injunction shall not restrict any right of such union to picket, strike or otherwise interfere with the business of NW, NS, or any of the other NS system rail carriers that may mature following the certification of each such union as representative and be based solely upon the union's representative status following certification: Provided, that any such union is prohibited from exercising self-help in connection with any event occurring prior to certification of that union, including but not limited to the service of any purported pre-certification notice on Wheeling pursuant to 45 U.S.C. § 156.

IV.

Labor plaintiffs insist that there is no basis for enjoining the unlawful exercise of self-help against carriers in the NS system other than NW. They suggest the Court has not previously granted such relief. The record indicates otherwise. Specifically, the record reflects the labor plaintiffs' initial intention to extend self-help measures to the NS system, which is why the...