Washington Cent. R. Co. v. National Mediation Bd.

• Decision Date: 25 June 1993
• Docket Number: No. CY-93-3029-AAM.,CY-93-3029-AAM.
• Citation: 830 F. Supp. 1343
• Court: U.S. District Court — District of Washington
• Parties: WASHINGTON CENTRAL RAILROAD COMPANY, INC., Plaintiff, v. NATIONAL MEDIATION BOARD, Defendant.

830 F. Supp. 1343

WASHINGTON CENTRAL RAILROAD COMPANY, INC., Plaintiff, v. NATIONAL MEDIATION BOARD, Defendant.

No. CY-93-3029-AAM.

United States District Court, E.D. Washington.

June 25, 1993.

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Terry A. Brooks, James S. Berg, Halverson & Applegate, P.S., Yakima, WA, Ronald M. Johnson, Akin, Gump, Strauss, Hauer & Feld, L.L.P., Washington, DC, pro hac vice, for plaintiff.

Christopher Tait, Yakima, WA, for plaintiff-intervenors.

David O. Buchholz, Dept. of Justice, Washington, DC, Robert S. Linnell, U.S. Attorney's Office, Yakima, WA, for defendant.

ORDER RE DISPOSITIVE MOTIONS

McDONALD, District Judge.

Before the court for resolution without oral argument are the following motions: Plaintiff's Motion to Strike Portions of the Third Declaration of William J. Gill, Jr. (Ct. Rec. 78); Defendant's Motion to Dismiss or Alternatively for Summary Judgment (Ct. Rec. 64); and Plaintiff's Motion for Summary Judgment (Ct. Rec. 58). For the reasons discussed more fully below, the court is denying plaintiff's motion to strike; granting plaintiff's motion for summary judgment only as it relates to the participation of former employees in the representative elections; granting defendant's motion for summary judgment as to all other issues; and ordering the National Mediation Board to set aside the February, 1993 elections and resulting certifications.

FACTS:

The following facts are gleaned from the parties' LR 56 statements of material facts as well as from other affidavits and declarations on file. Plaintiff has objected to portions of the affidavit supporting defendant's LR 56 statement. These objections are addressed below in the context of plaintiff's motion to strike. Aside from these objections, the facts presented below are uncontested except where a specific challenge is noted. Many of the facts stated by the parties as material are not summarized below as they are not necessary for resolving the issues before the court. The court therefore need not sort through the endless and acrimonious debate over these incidents.

1. Initial dispute

In June, 1990, a substantial number of Washington Central Railroad Company's (WCRC) employees signed authorization cards suggesting that they wanted the United Transportation Union (UTU) to represent them in negotiations with the Railroad. Ct. Rec. 61, ¶ 1. Defendant states that 22 out of 28 employees signed such cards. Plaintiff contends that it cannot agree as to the number that signed without independently verifying the signatures. Ct. Rec. 74, ¶¶ 1-2. Plaintiff does not, however, contest that many employees signed authorization cards.

Shortly thereafter the UTU filed an application with the National Mediation Board (NMB) seeking to represent the employees of Washington Central described as Train Service Representatives. The employees were not at that time represented. The Board assigned Mediator Charles Barnes to investigate whether a representation dispute existed at WCRC and, if so, in what crafts or classes.

2. Craft or class determination

Barnes came to Yakima on July 10, 1990 and met separately with both Nicholas Temple, President of WCRC and Andrew Sanderson, a representative of the UTU. Defendant states that during the meeting with Temple, Barnes discussed the procedures to be followed in the investigation. Barnes also discussed the craft or class issue "at length" during his meetings with Temple and Sanderson. Ct. Rec. 61, ¶¶ 9-10.

Plaintiff objects to defendant's statements about the content of discussions between Barnes and the other participants. Ct. Rec. 74, ¶¶ 8-9. Plaintiff contends that the statements are inadmissible hearsay. Defendant responds that the statements, based upon Barnes' July 10, 1990 report, are admissible under the business records or public records hearsay exceptions. F.R.Evid. 803(6), 803(8). The admissibility issue is addressed below in the context of plaintiff's motion to strike. What plaintiff does not, however, contest is that Barnes met with Temple and Sanderson on July 10, 1990.

Defendant further states that, based on these meetings, Barnes determined that there were two separate crafts or classes at WCRC, Trainmen and Engineers. In Barnes' July 10, 1990 report he states that "Both participants Temple and Sanderson concurred that all subject employees basically perform either historical Engineer or historical Trainmen duties and assignments." Ct. Rec. 62, Ex. 42 at 1.

On July 13th, Barnes notified the Board of his preliminary determination of crafts or classes. On July 16th, Barnes received a letter from Temple that was dated July 11, 1990. It reads in part as follows: "Pursuant to our conversation of yesterday, this letter will support the trainmen and engineer certification of five WCRC employees." Ct. Rec. 17, Ex. 2 at 1. The letter then goes on to discuss the training and job assignments of several employees. As to Russell Gohl, Temple states that Gohl "went through the WCRC trainman training program," "performed duty and was paid as a trainman on June 15, 1990," and "has been a full-time trainman since 15 June." Id. The letter makes similar statements as to Steve Meadows. As to John Hood, the letter states that "of any single craft Mr. Hood spent the preponderance of his time in train service as locomotive engineer." Id. (emphasis in original).

Plaintiff contests the statement that Temple concurred with Barnes' determination that there were two separate crafts. Ct. Rec. 74, ¶ 11. In support of this contention, plaintiff cites to affidavits of Temple and Burke. These affidavits, however, only speak to the merits of the dispute as to whether or not WCRC has one or two crafts. Nowhere in the affidavits is there a challenge to the fact that Barnes met with Temple and Sanderson on July 10th and discussed the appropriate craft or class designation for WCRC. Neither does plaintiff raise any objection to Temple's July 11, 1990 letter to Barnes.

Plaintiff also "disputes the claim that Mediator Barnes based his craft or class determination on any investigation of what WCRC's Train Service Representative (`TSR') employees actually do." Ct. Rec. 74, ¶ 10. In support of this challenge, WCRC cites again to Temple's affidavit and to WCRC's Objections to Mediator Andrew Stites' February, 1993 preliminary craft and eligibility determinations. Aside from making the unsupported allegation that Barnes did not investigate what WCRC employees actually do, these materials again do not contest the fact that Barnes met with Temple and Sanderson and discussed the craft designation before making his preliminary craft determination. As noted above, what the materials do present at length is WCRC's argument on the merits of the dispute as to the proper craft designation.

On July 16th Barnes provided Temple and Sanderson with the names of the employees Barnes determined were eligible to vote in the two separate crafts of Engineers and Trainmen. The letter of notification indicated that any challenges or objections had to be written, filed with the mediator, and supported by substantive evidence and argument. Ct. Rec. 17, Ex. 5. Further, the letter indicated that, in order to be considered timely, any challenges or objections had to be received by the mediator by July 25, 1990.

On July 20th, Temple sent a one page letter to Barnes, objecting for the record to Barnes' craft determination. Ct. Rec. 17, Ex. 6. Temple argued that neither the carrier, the employees, nor the union wanted the election to be divided into two crafts; that such division could create a situation where half of the employees were union while the other half were not; and that the division was an antiquated one not based on modern management systems and therefore detrimental to all involved.

On July 25th, Barnes responded that he had received and considered Temple's objections. Ct. Rec. 17, Ex. 7. Barnes rejected Temple's arguments and stood by his original craft determination. Barnes' July 25th letter further stated that the carrier could appeal the mediator's craft determination to the Board. Any such objection had to be in writing, supported by further substantive evidence or argument, "and will be denied as untimely unless received at the National Mediation Board's offices" by August 3, 1990. Id. Plaintiff does not contest the fact that it never filed a timely appeal as directed by Barnes' July 25th letter.

3. First scheduled vote

The Board found that representation disputes existed in both crafts at WCRC. Ct. Rec. 17, Ex. 8. It decided to hold elections. Ballots were mailed on August 1, 1990 and the count was to take place on August 29th. The voter eligibility cut-off date was June 16, 1990.

On August 27, 1990, the UTU filed with the Board a request for investigation of alleged carrier interference. Ct. Rec. 17, Ex. 10. The UTU alleged several incidents of carrier interference with the conduct of the election. The following day, the UTU requested that the NMB impound the ballots until an investigation could be conducted into the allegations of interference. On August 29, 1990, the Board impounded the ballots before they were counted.

The Board states that it began its investigation into the allegations of carrier interference in September, 1990. Ct. Rec. 61, ¶ 27. Plaintiff argues that, because no discovery has been allowed in this case, they cannot confirm when the investigation began. Ct. Rec. 74, ¶ 27. The exact beginning or conduct of the investigation into allegations of carrier misconduct is not, however, critical to the resolution of the issues before this court. Suffice it to say that, between the time of the first election and February 5, 1993, first Mediator Barnes and then Mediator Stites conducted an investigation into the allegations of carrier interference in the representation disputes at WCRC.

4. Todd lawsuit

Meanwhile, on July 31, 1990, several employees and...