Volkman v. United Transp. Union, Civ. A. No. 83-6025.

• Decision Date: 14 September 1989
• Docket Number: Civ. A. No. 83-6025.
• Citation: 724 F. Supp. 1282
• Parties: Jerry W. VOLKMAN, et al., Plaintiffs, v. UNITED TRANSPORTATION UNION, et al., Defendants.
• Court: U.S. District Court — District of Kansas

724 F. Supp. 1282

Jerry W. VOLKMAN, et al., Plaintiffs, v. UNITED TRANSPORTATION UNION, et al., Defendants.

Civ. A. No. 83-6025.

United States District Court, D. Kansas.

September 14, 1989.

COPYRIGHT MATERIAL OMITTED

Lee H. Woodard, David H. M. Gray and Ron D. Beal, Klenda, Mitchell, Austerman & Zuercher, Wichita, Kan., and Bruce H. Stoltze, Brick, Seckingtong, Bowers, Swartz & Gentry, P.C., Des Moines, Iowa, for plaintiffs.

Bennett, Dillon & Callahan, Mark L. Bennett, Jr., Topeka, Kan., and Robert S. Bogason, Co-Counsel, San Francisco, Cal., for St. Louis Southwestern Ry. Co., et al.

E.L. Lee Kinch, Ratner, Mattox, Ratner, Barnes & Kinch, Wichita, Kan., and Pamela D. Walker, Little Rock, Ark., for United Transp. Union, et al.

OPINION AND ORDER

THEIS, District Judge.

INTRODUCTION

This matter comes before the court after trial for entry of findings of fact and conclusions of law. The dispute arises out of the purchase and subsequent operation of a section of the Rock Island railroad by the defendant Saint Louis Southwestern Railway Company. Plaintiffs are a class of former Rock Island trainmen and all are members of the defendant Union. Plaintiffs contend they did not receive the jobs or benefits they were entitled to under a 1980 labor protective agreement. The 1980 agreement was a generic labor agreement applicable to all sales of portions of the bankrupt Rock Island. Plaintiffs assert that a 1982 agreement between the Saint Louis Southwest and the defendant Union abrogated the earlier agreement. Under the 1982 agreement, defendants allegedly reduced the number of plaintiffs the railroad had to employ, decreasing its operating costs, and switched the jobs from the plaintiffs, a minority faction of the Union, to the majority faction who already worked for the Saint Louis Southwest.

Plaintiffs have statutory and common law causes of action. The latter and primary cause of action is a hybrid action: a breach of contract claim against the employer defendant and a breach of the duty of fair representation claim against the union defendant. The statutory claim is based on 49 U.S.C. ? 11347 and is largely duplicative of the contract claim against the employer defendant.

The trial lasted from October 27 to December 29, 1989. The court received testimony from nearly 40 witnesses; the exhibits admitted into evidence fill numerous notebooks and boxes. The parties submitted nearly 1,000 pages of post-trial briefs. After a thorough review of this voluminous record, the court is prepared to rule pursuant to Federal Rule of Civil Procedure 52.

FINDINGS OF FACT

A. THE PARTIES

The court certified this action as a Fed.R. Civ.P. 23(b)(2) class action. The class includes:

All persons who worked for the Chicago, Rock Island and Pacific Railroad Company as brakemen or switchmen, who were eligible for employment with the St. Louis Southwestern Railway Company ("SSW") on the Tucumcari line within the meaning of the Labor Protective Agreement of March 4, 1980, including those who were employed by the SSW.

Class Certification Order, Dkt. no. 75 at 2. The court will refer to the class as "plaintiffs" or "Rock Island employees." The class representatives are two switchmen and eight brakemen.

Defendant Southern Pacific Company ("SPC") is a holding company which wholly owns defendant Southern Pacific Transportation Company ("SPT"). SPT owns approximately 99% of defendant St. Louis Southwestern Railroad Company ("SSW"). SSW Findings of Fact ("FF") at ? 1.

SPT, also known generally as "Southern Pacific," operates railroad lines from Utah westward through Nevada and Oregon, southward through California and eastward into Arizona, New Mexico, Texas and Louisiana. Id. at 8. SSW, also known as the "Cotton Belt," has operated and continues to operate a line from St. Louis through Pine Bluff, Arkansas to Corsicana, Texas and then to El Paso where it intersects with an SPT line. The Texas to St. Louis route is known as the "Corsicana Line." Id. As described in section C, SSW began to operate over and eventually purchased the Rock Island's Tucumcari line in 1980.

The Tucumcari line begins at an SPT line in Santa Rosa, New Mexico and runs northeast through New Mexico to Dalhart, Texas, Pratt, Kansas, Herington, Kansas to Kansas City and then east to St. Louis. The Tucumcari Line and the Corsicana Line start in roughly the same place in the southwest and end in St. Louis but the Tucumcari is 400 miles shorter than the Corsicana. A map of the two routes and other relevant rail lines is attached as Appendix A, SSW Ex. 193. At sometime after the purchase of the Tucumcari Line, SSW renamed the two lines. The Corsicana Line became the Pine Bluff Division and the Tucumcari Line became the Kansas City Division.

SPT controls SSW. The court reaches this conclusion after examining the common officers and operations of the two companies. The chairman of the Board of Directors and chief executive officer for both defendants was Denman K. McNear. SPT and SSW had a common president, R.D. Kerbs. Pls. Ex. 8B at 23, 24. SPT and SSW had a common labor relations department. K.R. Peifer, an SSW-SPT officer for labor relations, wrote important memos about Tucumcari Line operations. Pls. Exs. 6C, 6D, 11D and 73; 9 Huntington at 14 The citation to trial testimony will follow the above format: volume number, witness, page number.. William Denton, an SPT-SSW vice president, signed the March 4 agreement for SSW and SPT. Pls. Ex. 5 at 15. Shortly after signing the March 4 agreement, Denton informed UTU president Fred Hardin who would represent SSW in labor matters on the Tucumcari Line. Pls. Ex. 7.

The common SPT-SSW operational relationship continues today. SPT employees, using SPT records, performed SSW's car count study and then testified for SSW. 23 Lee at 147-50; 24 Lee all; 25 Lee all; 26 Bosanko all; 27 Bosanko all; SSW Exs. 112, 113.

SPT and SSW were an integral part of SPC's railroad division. All three railroad defendants filed a joint brief in support of the SPT-SSW application to purchase the Tucumcari Line. They argued that if the ICC granted the application SPC would have a single carrier route to St. Louis: SPT from California to New Mexico and SSW from New Mexico to St. Louis. Pls. Ex. 8C at III-16. In a statement supporting the application, B.F. Biaggini, chief executive officer of SPC, stated he was "Chief Executive Officer of both applicants. ..." Pls. Ex. 122 at 1, 6. The headquarters for all three defendants is the Southern Pacific Building, One Market Plaza in San Francisco. 9 Huntington at 14, 36; 20 Koenig at 10-11; 23 Koenig at 63-64; Pls. Exs. 8B at 23 & 122 at 6. The San Francisco headquarters furnished various services for SSW-SPT: accounting services, 23 Koenig at 64, a common monthly employee publication, the Southern Pacific Bulletin, Pls. Exs. 8, 8A, 8D, 21A, 60, and labor relations advise and direction.

Defendant United Transportation Union ("UTU" or "Union") is an unincorporated labor organization, created pursuant to the Railway Labor Act. The UTU consists of an international union with headquarters in Cleveland, Ohio, and local chapters ("locals") at various points throughout the country. Pretrial Order Stipulations, Dkt. no. 86 at 7.

The UTU locals along the Corsicana Line included employees from two crafts: brakemen, switchmen and employees who held seniority in both crafts. In 1971, SSW brakemen and switchmen combined crafts. See infra, section B. 2. Brakemen and switchmen had separate locals on the Rock Island because the two crafts did not combine in 1971. 6 Swonger 25-27 (Pratt brakemen local chairman); 13 Will 140 (Herington switchman); 18 Schneider 24 (Herington switchman). Each UTU local elects officers and a Local Committee of Adjustment for the particular railroad on which the members of the local work. The chairman of the Local Committee also serves on the General Committee of Adjustment. Pls. Ex. 41 ("UTU constitution"), Arts. 56, 57, 81 & 82.

The UTU constitution sets out the normal role for the General Committee in labor negotiations. The General Committee negotiates and adopts collective bargaining agreements with a railroad. 5 Swonger at 53; 28 Hardin 96; UTU constitution, Art. 85. The chairman of the General Committee ("General Chairman") exercises the Committee's powers and duties. He is the executive officer for the General Committee and is the UTU's primary representative for all dealings with a railroad. 30 Arnett at 6; UTU constitution at Art. 87. The General Chairman ordinarily negotiates all collective bargaining agreements; he must then obtain the General Committee's approval of the general agreement. UTU constitution at Art. 85.

B. RAILROAD TERMINOLOGY AND SENIORITY SYSTEMS

Before the court delves into the heart of the law suit, the terms of the March 4 agreement and the subsequent abrogation of that agreement in a later implementing agreement, the court must explain some basic terminology which permeated the testimony and documents in this action.

1. Railroad Terminology

The plaintiff class includes brakemen and switchmen, also known as yardmen. The later two terms refer to the employees who "switch" cars or move them from one train to another in a railroad's "yard" ?€” a central location on a rail line where trains are broken up and put together for routing. Yardmen hold jobs by seniority and use the extra board procedure described below. 13 Will at 105-06. The court will use the term "yardmen" to describe this group.

An average train crew consists of an engineer, two brakemen and a conductor. Brakemen and conductors are known generally as roadmen or trainmen. 20 Koenig at 48. Brakemen operate "through" trains, which run from one end of the line to the other, and "local" trains, which run from one place on the line to another place on the line. Brakemen hold permanent or regular jobs on both types of trains and can work either type of train from the "extra board." 15 Donahue at 8-9...