Railway Labor Exec. v. Wheeling & Lake Erie Ry.

Decision Date11 July 1990
Docket NumberCiv. A. No. 90-0597-A.
Citation741 F. Supp. 595
CourtU.S. District Court — Eastern District of Virginia
PartiesRAILWAY LABOR EXECUTIVES' ASSOCIATION, et al., Plaintiffs, v. WHEELING & LAKE ERIE RAILWAY CO., Defendants, and Norfolk & Western Railway, et al., Intervenors.

John O'B Clarke, Jr., Highshaw, Mahoney & Clarke, P.C., Vienna, Va., for plaintiffs.

Timothy A. Harr, Oppenheimer Wolff & Donnelly, Robert H. Wheeler, Washington, D.C., for defendants.

Jeffrey S. Berlin, Richardson Berlin & Morvillo, Washington, D.C., for Norfolk & Western Ry. Co.

MEMORANDUM OPINION

ELLIS, District Judge.

This is the latest chapter in what may justly be called the Norfolk Southern System ("NS") spur line sale/lease saga. It is occasioned by the desire of the labor plaintiffs to put squarely in issue before the Fourth Circuit Court of Appeals the novel question whether the National Labor Relations Act's1 ("NLRA") successorship doctrine2 applies in the Railway Labor Act3 ("RLA") context. Although the Court had previously indicated its view on this question,4 the labor plaintiffs were concerned that the Fourth Circuit would not consider and decide the question because it was not properly part of the appeal.5 To remedy this and remove any doubt, the labor plaintiffs have filed motions (1) to vacate and dissolve the preliminary injunction and (2) for leave to file an amended and supplemented complaint. For the reasons that follow, the Court concludes that the NLRA successorship doctrine does not operate in the RLA context and that both of labor plaintiffs' motions must, therefore, be denied.

I.

The background facts of the spur line sale/lease saga are set forth in the opinions previously issued in this and a related case. See Wheeling, 736 F.Supp. 1397 (E.D.Va. 1990); RLEA, et al. v. Chesapeake & Western Ry., et al. ("Chesapeake"), 738 F.Supp. 1544 (E.D.Va.1990). For the purposes of this chapter of the saga, the following recapitulation is sufficient.

Wheeling and Lake Erie Ry. ("Wheeling"), formerly the Wheeling Acquisition Corp., acquired approximately 575 miles of rail lines from the Norfolk & Western Ry. ("NW"). The transaction also involved Wheeling's acquisition of trackage rights to an additional 264 miles of rail lines. The transaction was consummated on May 17, 1990. Approximately two weeks earlier, the labor plaintiffs had filed the complaint in this case seeking, inter alia, injunctive relief under the RLA to require Wheeling to bargain with the labor plaintiffs over the manner in which Wheeling would hire its new employees and the terms and conditions of their employment. Immediately following this filing, the labor plaintiffs sought a temporary restraining order and preliminary injunction to prevent Wheeling from hiring any employees until it negotiated with labor plaintiffs over the manner in which the employees would be hired and assigned and the terms and conditions of their employment. The central question there presented was whether Wheeling was a "carrier" subject to the RLA given that it had contracted to purchase rail lines, but did not then own or operate any such lines. After hearing oral argument, the Court concluded, inter alia, that Wheeling was not a "carrier" under the RLA and therefore denied labor plaintiffs' request for injunctive relief. See Wheeling, 736 F.Supp. at 1400.

Once the transaction was consummated, Wheeling then became an owner and operator of rail lines and thus a "carrier" subject to the RLA. By then, Wheeling had also hired its complement of employees, more than one-half of whom are former NW or NS employees who previously had been represented by various of the labor plaintiffs. More specifically, it appears that of the 206 employees Wheeling has hired, 172 are former NW personnel who worked on the rail lines Wheeling acquired.6 And labor plaintiffs further claim that of the approximately 75 personnel currently working at Wheeling performing maintenance of way work, 60 are former NW employees and members of the Brotherhood of Maintenance of Way Employees ("BMWE"). Similarly, labor plaintiffs claim that 10 of the 14 employees performing Wheeling's signal work are members of the Brotherhood of Railroad Signalmen from NW and 11 of the roughly 18 employees now doing Wheeling's carmen work are members of the Brotherhood of Railway Carmen Division of TCU who previously did the same work for NW on the lines acquired by Wheeling. In short, labor plaintiffs claim that substantially more than one-half of Wheeling's employees are former NW employees who worked on the rail lines Wheeling acquired and who were then, and are now, represented by various of the labor plaintiffs.

Relying on this substantial continuity in the work force certain of the labor plaintiffs, after May 17, twice served RLA § 6 notices on Wheeling demanding recognition and commencement of bargaining. Wheeling has steadfastly declined, taking the position that RLA § 2 Ninth controls and establishes the procedure labor plaintiffs must follow to obtain certification as an RLA "representative." See 45 U.S.C. § 152 Ninth.7

Following the May 27 closing, the labor plaintiffs changed their position on the use of self-help. Up to that time, counsel for labor plaintiffs had represented to the Court that the unions would refrain from engaging in self-help measures and picketing. When this position changed, the labor plaintiffs promptly advised the Court and the parties that the unions intended to engage in recognition picketing at various sites, including certain interchange points between the NW and Wheeling lines. The likely practical effect of this picketing would be the shut-down of the interchange and widespread disruption of rail service. Faced with this prospect, NW, on May 23, 1990, successfully sought injunctive relief from this Court, chiefly on the ground that the contemplated coercive self-help was contrary to RLA § 2 Ninth and a circumvention of the RLA's compulsory procedures for the resolution of representation disputes.8

II.

Labor plaintiffs' invitation to import the NLRA successorship doctrine into the RLA context is not wholly without appeal. At first blush, it seems sensible to impose on a successor employer a duty to bargain with a predecessor's union where that employer has hired a substantial and representative complement of its employees and it is "perfectly clear" that the majority requirement is met. See Fall River, 482 U.S. at 45-51, 107 S.Ct. at 2237-40.9 But closer scrutiny compels the conclusion that the invitation must be declined. To begin with, the RLA and NLRA schemes are not animated by the same balance of policy considerations. The RLA was enacted "to prevent, if possible, wasteful strikes and interruptions in interstate commerce." Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 148, 90 S.Ct. 294, 298, 24 L.Ed.2d 325 (1969) (footnote omitted). By contrast, the NLRA takes a different approach, proscribing strikes and picketing only in specific circumstances, but otherwise recognizing the right to strike and engage in self-help. See 29 U.S.C. § 163 ("Nothing in this subchapter, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right"); 29 U.S.C. § 158(b) (specifically prohibiting particular types of picketing); NLRB v. Drivers, Chauffeurs, Helpers, Local Union No. 639, 362 U.S. 274, 284, 80 S.Ct. 706, 712, 4 L.Ed.2d 710 (1960) (discussing 29 U.S.C. § 158(b) and stating that it represents Congress's decision to deal with certain "isolated evils" in the area of picketing). This difference between the RLA and NLRA was recognized by the Second Circuit in Summit, 628 F.2d at 794. There, the court stated: "Unlike the National Labor Relations Act, the Railway Labor Act is specifically designed and intended `to avoid any interruption to commerce or to the operation of any carrier engaged therein....' 45 U.S.C. § 151a." (citations omitted).

The RLA's overarching purpose of avoiding strikes and coercive self-help is reflected in the comprehensiveness of the RLA scheme. The RLA obligates a carrier to bargain with the chosen representative of a majority of a "craft or class" of employees. 45 U.S.C. § 152 Fourth. And, RLA § 2 Third, 45 U.S.C. § 152 Third, guarantees that employees will have an unfettered right to select their collective bargaining representative, free from all interference. Significantly, the sole and exclusive process for selection of employee representatives is set forth in RLA § 2 Ninth, 45 U.S.C. § 152 Ninth.10 That section confers discretion on the NMB to define appropriate crafts or classes and to resolve all disputes concerning representation. Also within the NMB's discretion is the choice of a procedure for selection of a bargaining representative.11 Finally, the NMB's jurisdiction over representation disputes is plenary and exclusive, General Committee of Adjustment of Bhd. of Locomotive Eng'rs v. Missouri-Kansas-Texas R.R., 320 U.S. 323, 336, 64 S.Ct. 146, 152, 88 L.Ed. 76 (1943); Order of R.R. Telegraphers v. Leighty, 298 F.2d 17, 19 (4th Cir.), cert. denied, 369 U.S. 885, 82 S.Ct. 1160, 8 L.Ed.2d 287 (1962),12 and the RLA § 2 Ninth procedure is mandatory. See Summit, 628 F.2d at 795. In sum, by enacting this comprehensive RLA scheme and by creating the NMB and granting it exclusive power over representation disputes, Congress has deliberately left no room for courts to engraft a successorship doctrine onto the RLA. Indeed, it is plain that such a doctrine, even assuming it were to fit the facts at bar13, is incompatible with the mandatory RLA § 2 Ninth procedure and the NMB's exclusive jurisdiction over representation disputes. To hold otherwise would have this Court decide what is the appropriate craft or class14 and who is, or are, the authorized bargaining representative(s). But...

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  • Adler v. I & M Rail Link, L.L.C.
    • United States
    • U.S. District Court — Northern District of Iowa
    • June 17, 1998
    ...union representation applies to the RLA as well as the NLRA has rejected that argument. See Railway Labor Executives' Ass'n v. Wheeling & Lake Erie Ry., 741 F.Supp. 595, 599 (E.D.Va.), aff'd, 914 F.2d 53 (4th Cir.1990) (table opinion). In Wheeling, Judge Ellis of the United States District ......
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    • United States
    • U.S. District Court — Eastern District of Virginia
    • January 31, 1991
    ...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 ......
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    • United States
    • U.S. District Court — Western District of Virginia
    • December 2, 2002
    ...179 (W.D.Va.1997); Shanks v. Forsyth County Park Auth., 869 F.Supp. 1231, 1238 (M.D.N.C.1994); Ry. Labor Executives Ass'n v. Wheeling & Lake Erie Ry. Co., 741 F.Supp. 595, 600 (E.D.Va.1990). The Oroweat language of "clearly insufficient or frivolous on its face" accords quite closely with t......
  • Railway Labor Executives Ass'n v. Wheeling & Lake Erie Ry. Co.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • August 26, 1991
    ...the reasons stated in our earlier opinion and in the thorough opinions of the district court. Railway Labor Executives' Association v. Wheeling & Lake Erie Railway, 741 F.Supp. 595 (E.D.Va.1990); Railway Labor Executives' Association v. Wheeling & Lake Erie Railway, 756 F.Supp. 249 AFFIRMED. ...

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