Union Pac. R.R. Co. v. Bhd. of Maint. of Way Employes Div. of the Int'l Bhd. of Teamsters, 8:20-CV-516

Decision Date07 January 2021
Docket Number8:20-CV-516
CourtU.S. District Court — District of Nebraska

511 F.Supp.3d 987



United States District Court, D. Nebraska.

Signed January 7, 2021

511 F.Supp.3d 990

Andrew J. Rolfes, Pro Hac Vice, Robert S. Hawkins, Pro Hac Vice, Cozen O'Connor Law Firm - Philadelphia, Philadelphia, PA, Jacquelyn V. Clark, Torriano N. Garland, Union Pacific - Law Department, Omaha, NE, for Plaintiff.

Robert E. O'Connor, Jr., O'Connor & Associates, Omaha, NE, for Defendant.


Brian C. Buescher, United States District Judge

This matter came on for hearing on Plaintiff's Motion for Preliminary Injunction, Filing 6, on the 5th day of January, 2021. Plaintiff and Defendant appeared by counsel of record. The Court previously granted Plaintiff's Motion for Temporary Restraining Order. Filing 24. The Court heard the testimony of witnesses in open court by both sides and permitted cross-examination of the same. Having reviewed the pleadings, arguments, evidence, and testimony in the record, the Court concludes Plaintiff's Motion for Preliminary Injunction should be granted.


Plaintiff, Union Pacific Railroad Company ("Union Pacific"), is a Class I railroad operating and providing freight transportation services covering 32,000 miles in twenty-three states. Filing 1 at 2; Filing 8-1 at 1. It is the second largest freight rail system in the United States, employs approximately 30,000 people, and provides transportation services to approximately 10,000 customers. Filing 8-1 at 2-3. Union Pacific provides transportation services to many manufacturers throughout the country, transporting a variety of goods, often on a time-sensitive basis. Filing 8-1 at 2-3. The railroad is the largest shipper of finished automobiles west of the Mississippi River and a major shipper of grain and coal. Filing 8-1 at 2-3. Union Pacific also transports products and raw materials used for public health and safety, some of which cannot be shipped by truck. Filing 8-1 at 3. Union Pacific generated around $54 million per day in operating revenue in the last fiscal year, equating to around $22 million per day net operating income. Filing 8-1 at 4.

Defendant, the Brotherhood of Maintenance of Way Employes Division of the International Brotherhood of Teamsters ("BMWED"), is a labor organization that represents Union Pacific employees in the craft or class of maintenance of way. Filing 1 at 2-3. BMWED and Union Pacific are parties to multiple collective-bargaining agreements ("CBAs") that govern rates of pay, rules, and working conditions of Union Pacific employees represented by BMWED. Filing 1 at 3.

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Union Pacific is a member of a collective-bargaining organization of large railroads represented by the National Carriers’ Conference Committee ("NCCC") of the National Railway Labor Conference ("NRLC"). Filing 1 at 4. NCCC negotiates with multiple unions nationwide to form CBAs on behalf of its member railroads in what is known as national handling. On November 1, 2019, NCCC, acting on behalf of Union Pacific and other member carriers, served BMWED with formal notice, known as Section 6 notice, as required under the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et seq., beginning the bargaining process designed to lead to a new CBA between BMWED and the railroads. Filing 1 at 4; see 45 U.S.C. § 156 ("Carriers and representatives of the employees shall give at least thirty days’ written notice of an intended change in agreements affecting rates of pay, rules, or working conditions ...."). BMWED served its own Section 6 notice of demands for increased pay and additional paid time off for the employees it represents on November 4, 2019, in accordance with the RLA. Filing 1 at 4; Filing 22-2; see 45 U.S.C. § 156. In its notice, BMWED sought a seven percent per annum wage increase for its members and cost of living allowances adjusted annually only for rising costs, both retroactive to January 1, 2020; increased travel allowances; reduced out-of-pocket healthcare expenses; per diem payments at the transportation industry national rate, as adjusted annually by the federal government; paid leave compensation determined by the number of hours each employee is assigned to work and amended "[v]acation and personal day qualifications to reflect mainstream practices"; and that all training and testing occur during regular hours and employees be paid for testing and training time at their assigned rate. Filing 22-2 at 3-4. NCCC and BMWED have remained in bargaining since the notices were served, and neither party has sought mediation services from the National Mediation Board. Filing 1 at 4.

On March 11, 2020, officers of multiple rail-workers’ unions wrote the Chairman of the NRLC, Brendan Branon, requesting a coordinated response by NRLC-member railroads, including Union Pacific, to the COVID-19 pandemic. Filing 1-1. The unions requested the railroads adhere to Center for Disease Control ("CDC") guidelines for mitigating COVID-19, that all attendance policies be suspended, that employees required to quarantine not be subject to discipline, and that quarantined employees receive paid leave for missed work. Filing 1-1 at 2-3. By letter dated March 13, 2020, Branon advised the unions that NRLC-member railroads were working with "their medical experts to implement and maintain prevention and response measures" consistent with CDC guidelines and the unions should address their concerns with the individual rail carriers. Filing 1-2.

On March 19, 2020, BMWED's president wrote to Union Pacific's chairman and CEO requesting copies of COVID-19-related preventative and response plans and attendance policies concerning BMWED-represented employees. Filing 1-3. On March 30, 2020, the Union Pacific Vice President of Mechanical and Engineering responded to the request, noting that Union Pacific was endeavoring to follow CDC guidelines and providing a link for Union Pacific's intranet site where the railroad's documents and instructions concerning its COVID-19 practices and policies were posted. Filing 1-4. The Vice President of Mechanical and Engineering also noted the fluidity of the situation, the need to check the intranet site often due to constant updates, and that Union Pacific had established a daily call with senior staff and union personnel to share information

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and hear the concerns of the unions. Filing 1-4. In late March, Union Pacific adopted a policy providing fourteen days paid leave for those employees who were directed to quarantine due to workplace exposure to COVID-19 and instituted policies requiring social distancing and face coverings. Filing 1 at 6. The current guidance provides that Union Pacific employees can only receive payment for one fourteen-day quarantine period and only if they are exposed to COVID-19 at work. Filing 1 at 6; Filing 35-5 at 1. Rod Doerr, Union Pacific Vice President of Labor relations, testified that Union Pacific's supplemental pay policy does not apply when an employee is exposed to COVID-19 outside of work in order "to incent[ivize] the correct behavior [and n]ot to take on risky activities while one is off company property." This was the result of a few early cases where an employee had "gone to concerts and then would return from those kind of events knowing that they were risky and bring that information to [Union Pacific] and then expect to be quarantined." Doerr testified that employees can nevertheless use vacation, sick, or other paid leave if required to quarantine for non-work-related exposures.

On March 20, 2020, two other rail labor unions, the Brotherhood of Locomotive Engineers and Trainmen and the International Association of Sheet Metal, Air, Rail, and Transportation Workers – Transportation Division, filed a petition with the Federal Railroad Administration ("FRA") seeking an emergency order pursuant to the Federal Railroad Safety Act of 1970 ("FRSA"), 49 U.S.C. § 20101 et seq., "to address safety conditions arising from the novel coronavirus (COVID-19) emergency" and to standardize and identify best practices in the industry for mitigating the spread of the virus and protecting employees. Filing 1-5 at 1. The FRA issued a Safety Advisory encouraging railroads to adhere to CDC guidelines and incorporate industry best practices regarding the pandemic. Filing 1 at 7. The FRA declined to issue an emergency order, however. Filing 1-6.

On July 2, 2020, BMWED's President again wrote to Union Pacific's Chairman and CEO, submitting for the railroad's consideration a thirteen-page "white paper" document detailing COVID-19 mitigation guidelines and procedures BMWED sought to have Union Pacific implement. Filing 1-7. Doerr responded on July 14, 2020, writing to BMWED that Union Pacific has a qualified pandemic team that assesses the latest pandemic-related information made available by the government, and the railroad's programs comply with CDC guidance. Filing 1-8. BMWED responded by letter dated July 21, 2020, maintaining its opinion that "the only way to achieve the necessary, safe working conditions" was to implement the testing, temperature-taking, and contact-tracing procedures provided in the white paper...

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