Opinion
1:03-cv-1823-LJM-VSS
December 5, 2003
ORDER ON PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER AND INJUNCTIVE RELIEF
This matter is before the Court on plaintiff's, National Railroad Passenger Corporation ("Amtrak" or "Plaintiff'), Motion for a Temporary Restraining Order and Injunctive Relief. Amtrak contends that it will suffer irreparable harm unless the defendants, Brotherhood of Maintenance of Way Employes, Brotherhood of Maintenance of Way Employes Conrail System Federation (collectively "BMW"), Transport Workers Union of America, and TWU Local 2003 (collectively"TWU") (all unions collectively, "Defendant Unions") are enjoined from striking at Amtrak's Beech Grove, Indiana, maintenance facility. The Court held a hearing on the dispute on December 4, 2003, at which both sides were represented; no witnesses were called, but affidavits were filed. For the reasons set forth below, the Court GRANTS Plaintiff's motion.
I. FACTUAL BACKGROUND
The material facts relevant to the resolution of this motion are largely uncontested and are drawn from counsel's arguments and filed papers, including affidavits. The following facts constitute the Court's findings of fact. Amtrak's Beech Grove maintenance facility employs approximately 630 employees, including management, members of BMW, members of TWU, and members of other labor organizations. The employees at the Beech Grove facility are responsible for the re-manufacturing and overhauling of Amtrak's locomotive engines and passenger cars.
The Beech Grove facility's BMW-represented employees and TWU-represented employees went on strike on December 3, 2003, after Amtrak hired outside contractors to perform work at the Beech Grove facility. Both unions assert that Amtrak violated its collective bargaining agreement obligations by hiring the outside contractors without providing them timely notice or making a good faith attempt to meet and discuss the matter.
A. THE DISPUTE BETWEEN BMW AND AMTRAK
Amtrak and BMW are parties to a collective bargaining agreement (the "Amtrak/BMW CBA") that was in effect at all relevant times. Rule 24 of the Amtrak/BMW CBA provides:
RULE 24 — CONTRACTING OUT
1. In the event [Amtrak] plans to contract out work within the scope of the schedule agreement, the Chief Engineer shall notify the General Chairman [of BMW] in writing as far in advance of the date of the contracting transaction as is practicable and in any event not less than 15 days prior thereto.
2. If the General Chairman requests a meeting to discuss matters relating to the said contracting transaction, the Chief Engineer or his representative shall promptly meet with him for that purpose. The Chief Engineer or his representative and the General Chairman or his representative shall make a good faith attempt to reach an understanding concerning said contracting, but if no understanding is reached the Chief Engineer may nevertheless proceed with said contracting, and the General Chairman may file a progress claim in connection therewith.
3. Nothing in this Rule shall affect the existing rights of either party in connection with contracting out. Its purpose is to require [Amtrak] to give advance notice and, if requested, to meet with the General Chairman to discuss and if possible reach an understanding in connection therewith.
Ex. B (emphasis added).
A May 2003 inspection at the Beech Grove facility revealed that two rail tracks needed repair. The defective tracks were used for storage of rail cars. Amtrak decided to contract out the repair work. On November 5, 2003, Amtrak gave BMW notice of its intent to contract out the work, and informed BMW that the contractors would start on November 10, 2003. The parties held a conference about the matter on November 7, 2003, during which BMW opined that Amtrak's decision to contract out the work was in violation of Rule 24 of the Amtrak/BMW CBA. Amtrak and BMW did not resolve the issue, and the contractors began work on November 10, 2003. BMW later learned that the contractors started work at Amtrak on November 3, 2003, prior to the November 5, 2003, notice.
As required by the Railway Labor Act, the Amtrak/BMW CBA contains a grievance resolution procedure. Ex. B, Rule 14. BMW filed a grievance over the contracting out dispute on November 13, 2003. BMW alleged:
Statement of claim: The Claimants are aggrieved they have been deprived of work when the Company allowed private contractors (Rail Work Track Services) onto the property, which is maintained by the BMWE represented employees, for the purpose of correcting Class I defects and repairing tracks #4 and #5 at the Beech Grove facility. The work consists of tie installation and track surfacing, replacing damaged and defective rail. The contractor has five employees working. The five (5) Claimants are currently furloughed and are available and willing to perform the work. This work has always been performed by the Maintenance of Way forces in the Beech Grove facility since 1976.
Ex. C. BMW further stated that BMW personnel had a right to perform the track repair at issue under the Amtrak/BMW CBA's Work Scope provision, and demanded that its furloughed employees be returned to work and that the contractors be removed from the property.
On December 3, 2003, the Beech Grove BMW-represented employees initiated a strike against Amtrak in response to the contracting out dispute.
B. THE DISPUTE BETWEEN TWU AND AMTRAK
Amtrak and TWU are parties to a collective bargaining agreement (the "Amtrak/TWU CBA") that was in effect at all relevant times. The Amtrak/TWU CBA contains the following relevant provisions:
RULE 1 — CLASSIFICATION OF WORK
Pending adoptionofa national classification of work rule, employees will ordinarily perform the work which has been performed traditionally by the craft at that location, if formerly a railroad facility, or, as it has been performed at comparable Amtrak facilities, if it is a new facility.CONTRACTING OUT — CITED IN PUBLIC LAW NO. 105-134
In accordance with Public Law No. 105-134, December 2, 1997, of the "Amtrak Reform and Accountability Act of 1997", the following language on contracting out is now a part of all applicable bargaining agreements:
(1) Amtrak may not contract out work normally performed by an employee in a bargaining unit covered by a contract between a labor organization and Amtrak or a rail carrier that provided intercity rail passenger transportation on October 1970, if contracting out results in the layoff of an employee in the bargaining unit.
(2) This subsection does not apply to food and beverage services provided on trains of Amtrak.
Ex. E.
In early 2002, Amtrak brought in outside contractors to perform mold clean-up work. TWU objected to the hiring of the outside contractors and met with Amtrak about the issue in June 2002. According to TWU, Amtrak orally promised that the mold problems were an isolated, once-only matter, and that if it did happen in the future, TWU members would be asked to perform the work.
On December 1, 2003, Amtrak brought in outside contractors to perform mold clean-up work on the same rail cars that were cleaned in early 2002. Amtrak did not give TWU any notice of its intent to hire the contractors. TWU again objected to the hiring of the contractors, asserting that Amtrak violated the Amtrak/TWU CBA by allowing the contractors to do TWU members' work. On December 3, 2003, the Beech Grove TWU-represented employees initiated a strike against Amtrak in response to the contracting out dispute. In a letter advising Amtrak of its strike, TWU stated:
Amtrak has refused to provide a sensible explanation of why they persist in hiring outside contractors to do Amtrak workers' work. Amtrak's repeated insistence on this practice is not only a violation of our contract, it is a serious safety concern in this post-September 11 environment.
EX. D.
II. DISCUSSION A. MAJOR OR MINOR DISPUTE?
The central issue presented by this motion is what kind of labor dispute is before the Court. If, as Amtrak argues, the disputes are minor disputes under the Railway Labor Act ("RLA"), they are subject to the CBA's grievance procedures. In addition, the RLA prohibits strikes over minor disputes, and the Court has discretion to enjoin a strike over a minor dispute if the applicable criteria for injunctive relief are present. If, on the other hand, the disputes are major under the RLA, the parties are required to undergo a lengthy process of bargaining and mediation.
Section 2 Sixth of the RLA defines minor disputes as disputes: arising out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions.45 U.S.C. § 152. This category of disputes:
contemplates the existence of a collective agreement already concluded or, at any rate, a situation in which no effort is made to bring about a formal change in terms or to create a new one. The dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case. In the latter event the claim is founded upon some incident of the employment relation, or asserted one, independent of those covered by the collective agreement, e.g., claims on account of personal injuries. In either case the claim is to rights accrued, not merely to have new ones created for the future.Consolidated Rail Corp. v. Railway Labor Executives Ass'n, 491 U.S. 299, 303 (1989) ("Conrail") ( quoting Elgin, J. E.R. Co. v. Burley, 325 U.S. 711, 723 (1945). Minor disputes "are those that are grounded in the CBA." Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 257 (1994). A dispute is minor if the act in question is "arguably justified" by the CBA. See Conrail, 491 U.S. at 307.
Section 2 Seventh of the RLA is the statutory basis for major disputes, providing that: No carrier, its officers, or agents shall change the rates of pay, rules, or working conditions of its employees, as a class, as embodied in agreements except in the manner prescribed in such agreements . . .45 U.S.C. § 152 Seventh. The major disputes category:
relates to disputes over the formation of collective agreements or efforts to secure them. They arise where there is no such agreement or where it is sought to change the terms of one, and therefore the issue is not whether an existing agreement controls the controversy. They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.Conrail, 491 U.S. at 303 (quoting Burley, 325 U.S. at 723). Major disputes seek to create contractual rights while minor disputes seek to enforce contractual rights. See id. at 302.
Amtrak argues that the contracting out disputes with BMW and TWU are minor disputes. According to Amtrak, both disputes require interpretation of the respective CBAs' contracting out provisions, and the disputes should, therefore, be resolved through its grievance procedure. Amtrak cites the fact that BMW itself filed a grievance over this matter on November 13, 2003, as evidence that BMW also understands that the contracting out issue is a minor dispute. In response, BMW and TWU assert that the disputes are major disputes because Amtrak did not comply with Rule 24 of the Amtrak/BMW CBA and Rule 1 and the Contracting Out provision of the Amtrak TWU CBA. In addition, BMW contends that even if the dispute is minor, an injunction should not be issued against the unions because Amtrak has not shown that the balance of harms tips in its favor.
The Court agrees with Amtrak and concludes that the disputes are minor disputes subject to Amtrak's grievance procedure. Major disputes relate to the formation of CBAs or efforts to formally change them. Both BMW and TWU already have CBAs with Amtrak, and Amtrak has made no effort to formally change them. Amtrak is not seeking to create a new contractual right because it already has the right to contract out work under both CBAs.
BMW argues that because Amtrak only provided it with 5 days notice of its intention to contract out the rail repair work instead of the minimum 15 days notice, Amtrak was making a unilateral change to the CBA such that this is a major dispute. In the Court's view, BMW frames the issue too narrowly. The essence of the dispute is over Amtrak's ability to contract out work that the Defendant Unions believe is union work. Both CBAs contain explicit contracting out provisions and work scope provisions. Resolving the disputes would involve applying those CBA provisions to the specific facts at issue. These types of dispute fall within the plain language of the RLA's definition of minor dispute. 45 U.S.C. § 152 (defining minor disputes as disputes "arising out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions.") (emphasis added). Moreover, the fact that Amtrak appears to be out of compliance with the relevant provisions of the CBAs does not mean that it is attempting to create a new contract. The issue of compliance with the CBAs is the very issue for arbitration.
Because grievances may only be filed over minor disputes, the fact that BMW filed a grievance in this matter undermines its present position before this Court. In the "Statement of Claim" section of BMW's grievance, BMW states "The Claimants are aggrieved they have been deprived of work when the Company allowed private contractors onto the property . . . The work consists of tie installation and track surfacing, replacing damaged and defective rail . . . This work has always been performed by the Maintenance of Way forces in the Beech Grove facility since 1976." BMW's grievance may be conclusively resolved by interpreting and applying the provisions of the CBA, and this is the "distinguishing characteristic" of minor disputes. Hawaiian Airlines, 512 U.S. at 256. At bottom, BMW seeks enforcement of the terms of the work scope language and contracting out language of the Amtrak/BMW CBA. As stated by the Supreme Court in Conrail, minor disputes seek to enforce contractual rights while major ones seek to create new rights. Conrail, 491 U.S. at 303.
The dispute between Amtrak and TWU is also grounded in the parties' CBA. TWU itself characterized the dispute as one over whether Amtrak can have outside contractors do what TWU believes to be TWU members' work. The Amtrak/TWU CBA contains a work scope provision and a contracting out provision. Like BMW, TWU seeks to enforce those rights and the dispute may be conclusively resolved by interpreting and applying the provisions of the CBA. Accordingly, the Court concludes that TWU's dispute with Amtrak is a minor dispute.
Amtrak's claim to a contractual right to contract out work is not frivolous. As Amtrak notes, it has a right to contract out under both CBAs and, in accordance with its obligations, it did not furlough any workers as a result of the decision. While it appears that Amtrak did not comply with the provisions of the CBAs to the letter, it is not the Court's role to interpret and apply the terms of the CBAs. The RLA reserved this role for the employer's grievance officers. Even if there were doubt about the matter, it would be appropriate to construe the dispute as minor. See Bhd. of Locomotive Eng'rs v. Atchison, Topeka Santa Fe Ry., 768 F.2d 914, 920 (7th Cir. 1985) ("When in doubt, the Court construes disputes as minor."). Amtrak has carried its light burden of establishing that these disputes are minor ones. See Conrail, 491 U.S. at 307-08. Because both disputes with Amtrak are "grounded in the CBA," they are minor disputes that must be settled by Amtrak's grievance procedure.
B. IS AMTRAK ENTITLED TO A TEMPORARY RESTRAINING ORDER?
Notwithstanding the general prohibition against strike injunctions in the Norris-LaGuardia Act, 29 U.S.C. § 101 et. seq., federal district courts may enjoin labor strikes arising out of minor disputes. See, e.g., Chi. River Ind. R.R. Co. v. Bhd. of R.R. Trainmen, 229 F.2d 926 (7th Cir. 1956) (concluding that the Railway Labor Act authorizes the issuance of strike injunctions despite provisions of the Norris-LaGuardia Act).
One of the express purposes of the RLA is "to provide for the prompt and orderly settlement of all disputes growing out of grievances." Both unions and management are required to "make and maintain" agreements to avoid interruption of commerce or to the operation of the carrier. 45 U.S.C. § 152 First. Based on its findings of fact and analysis of the applicable law, the Court has concluded that the disputes between Amtrak and BMW and Amtrak and TWU are properly characterized as grievances. In fact, BMW itself filed a grievance over the dispute at issue. Rather than wait for the results of the grievance, BMW, together with TWU, decided to go on strike. This action conflicts with the RLA's intent to provide for the orderly settlement of disputes growing out of grievances, and its requirement that parties maintain agreements. A temporary restraining order is necessary to effectuate the provisions of the RLA.
The Defendant Unions argue that an injunction should not issue because Amtrak has violated Section 2 First of the RLA and Section 8 of the Norris-LaGuardia Act. In effect, these sections of the relevant acts require that Amtrak make reasonable efforts to resolve the dispute prior to seeking injunctive relief. See Rutland Ry. Corp. v. Bhd. of Locomotive Eng'rs, 307 F.2d 21, 40-41 (2d Cir. 1962). Cf. Burlington N. R.R. Co. v. United Trans. Union, 862 F.2d 1266, 1281-82 (discussing the requirements of the RLA and the Norris-LaGuardia Act in the context of a major dispute). The Defendant Unions averred that Amtrak failed to confer with them about their grievances over the present contracting out issue; therefore, it should be prohibited from seeking injunctive relief. However, the facts presented to the Court indicate that Amtrak discussed the issue with BMW, albeit without resolution. With respect to TWU, the Amtrak/TWU CBA suggests that Amtrak need not put TWU on notice that it will contract out work if no workers are furloughed. The evidence presented to the Court suggests that no workers were furloughed such that the contractors could be hired. Therefore, it is difficult to see how Amtrak would have been on notice that it needed to confer with TWU about the contracting-out issue unless TWU had filed a grievance or otherwise notified Amtrak that it thought Amtrakhad violated the terms of the Amtrak/TWU CBA. The Court makes this finding despite TWU's assertion that Amtrak had promised to allow TWU workers to perform this type of work when the issue was raised previously in 2002. In the case of TWU, the Court will not hold Amtrak to a duty to confer when it had little notice that the current contracting out situation troubled TWU.
Withrespect to the other criteria for a temporary restraining order under the Norris-LaGuardia Act, see 29 U.S.C. § 107, the Court finds those criteria met. All parties were represented at a hearing in open court, the Defendant Unions will continue to strike over a minor dispute in violation of the RLA unless enjoined, substantial and irreparable harm will be done to Amtrak if its Beech Grove facility is shut down, the balance of equities favors issuance of an injunction, and Amtrak has no adequate remedy at law. 29 U.S.C. § 107.
In the Court's view, Amtrak need not show that passengers have been lost or customers frustrated by non-performance to show substantial and irreparable harm. It is enough to say that Amtrak's rail cars are not being repaired, maintained, and overhauled, which, if allowed to continue, would substantially effect the interstate transportation of people. The Court finds that this is a substantial and irreparable harm that necessitates injunctive relief.
Furthermore, the harm to the public from an interruption of interstate rail transportation is immeasurable. Therefore, the Court finds that this factor weighs in favor of an injunction.
The Defendant Unions argue that their members have suffered from Amtrak's use of outside workers while their own workers have been furloughed. They assert that an arbitrator could not provide an effective remedy for the harm done to their members by Amtrak's violation of the CBAs; therefore, the Defendant Unions argue, the balance of harms weighs against an injunction. The Court disagrees. The Defendant Unions negotiated the terms of the CBA with Amtrak and must live by their provisions. An arbitrator can put the parties in the same positions they held prior to Amtrak's alleged breach of the CBA if he or she rejects Amtrak's position and finds for the Defendant Unions. Moreover, the Court, using its powers in equity, may ensure that Amtrak does not elude the Defendant Unions attempts to resolve the issues between them on the contracting-out provisions of the CBAs by properly fashioning the relief. See Nat'l Ry. Labor Conf. v. Int'l Ass'n of Machnists, 830 F.2d 741, 750 (7th Cir. 1987) (discussing the competing claims of irreparable hardships when the Court is to restrain a union from striking). The Court shall compel Amtrak to participate in expedited arbitration in addition to restraining any strike by the Defendant Unions.
In the balance, the Court finds that Amtrak is likely to succeed on the merits of its claim that the issues between it and the Defendant Unions is "minor" as that term is used in the RLA. Moreover, Amtrak has established that it will suffer irreparable harm if a temporary restraining order does not issue. The balance of harms tips in Amtraks favor and the public interest also favors immediate relief. For these reasons, the Court finds that a temporary restraining order should issue.
III. TEMPORARY RESTRAINING ORDER ORDER SCHEDULING HEARING ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
1. This cause is before the Court on plaintiff's, National Railroad Passenger Corporation ("Amtrak"), Motion for Temporary Restraining Order to restrain and enjoin Defendants, Brotherhood of Maintenance of Way Employes, Brotherhood of Maintenance of Way Employes Conrail System Federation (collectively, "BMW"), Transport Workers Union, Transport Workers Union Local 2003 (collectively, "TWU") (all unions collectively, "Defendant Unions"), Perry K. Geller and William Keglar (all defendants collectively, "Defendants"), and all others acting in concert with the Defendants, from permitting, instigating, authorizing, encouraging, participating in, approving of, or continuing the disruption of operations at Amtrak's Beech Grove, Indiana, Maintenance facility, including but not limited to any strike, work stoppage, slowdown, or concerted refusal to work in connection with any minor dispute concerning subcontracting at the Beech Grove facility.
2. Plaintiff, Amtrak, is a common carrier by rail engaged in the transportation of passengers and freight in intrastate and interstate commerce throughout the United States. Defendant Brotherhood of Maintenance of Way Employes and the Transport Workers Union, are unicorporated labor organizations which, pursuant to the Railway Labor Act, represent certain employees of Amtrak. Defendant Brotherhood of Maintenance Way Employes Consolidated Rail System Federation is an affiliate and agent of the Brotherhood of Maintenance Way Employes and Defendant Transport Workers UnionLocal 2003 is an affiliate and agent of the Transport Workers Union. Defendant Perry K. Geller is the General Chairman of the Brotherhood of Maintenance Way Employes Consolidated Rail System Federation, and Defendant William Keglar is the President of Transport Workers Union Local 2003. As such, they are responsible for coordinating the affairs and conduct of those respective organizations.
3. After a hearing on December 4, 2003, and in consideration of the arguments of counsel, the exhibits filed and the affidavits presented to the Court, the Court finds that a Temporary Restraining Order should issue because Amtrak is likely to succeed on the merits of its claim that the Defendants are in violation of the Railway Labor Act, and because immediate, substantial and irreparable damage, injury or loss will result to Amtrak before a hearing on Amtrak's request for a preliminary or permanent injunction can be had, including the shutdown of its Beech Grove, Indiana, maintenance facility, which will preclude Amtrak from performing the necessary maintenance on locomotives and passenger cars.
4. The Defendants will not suffer great harm from a Temporary Restraining Order against unlawful job actions and such injury will be adequately indemnified by bond and by an order for expedited arbitration.
5. The harm to the public from an interruption of interstate rail transport is immeasurable, therefore, an injunction of job actions will serve the public interest.
6. In the balance, greater injury will be inflicted upon Amtrak and the public if a Temporary Restraining Order is denied than will be inflicted upon the Defendants if a Temporary Restraining Order is granted.
NOW, THEREFORE, upon the written and oral arguments of counsel and the affidavits and evidence in support thereof, and for the reasons stated in this Order, to be construed as findings of fact and conclusions of law,
IT IS ORDERED that Defendants, and all officers and members and representatives of Defendants, and their agents, successors, deputies, and employees and all other persons acting by, with, through or under them, or by and through their orders, and all others acting in concert or in participation withthem, are hereby TEMPORARILY RE STRAINED pending a hearing on the preliminary injunction in this matter:
(a) from calling, permitting, instigating, authorizing, encouraging, participating in, approving or continuing any strike, work stoppage, slowdown, concerted refusal to work and any other form of economic self-help over any minor dispute concerning subcontracting at Amtrak's Beech Grove, Indiana, maintenance facility;
AND IT IS FURTHER ORDERED:
(b) that Defendants, and said other persons, shall take all steps within their power to prevent any disruption of the operations at the Beech Grove facility; and
(c) that Defendants notify, by the most expeditious means possible, all of their represented employees of Amtrak at the Beech Grove, Indiana, maintenance facility of the issuance, contents, and meaning of this Temporary Restraining Order and provide Plaintiff with a copy of all such notices.
IT IS FURTHER ORDERED:
(d) that Defendants and Amtrak shall proceed with expedited arbitration of the matters relating to contracting-out work at Amtrak's Beech Grove, Indiana, maintenance facility; and
(e) that Defendants and Amtrak shall restore the status quo as of the day the strike or work stoppage.
IT IS FURTHER ORDERED:
(f) that the parties shall appear before this Court on Wednesday, December 10, 2003, at 9:00 a.m., in the Birch Bayh Federal Building and U.S. Courthouse, Room204, for a hearing on Plaintiff's Motion for Preliminary Injunction.
This Temporary Restraining Order is issued on the condition that a bond be filed by Amtrak herein in the sum of $250,000.00, with the Clerk of this Court, and that said Defendants shall recover from Amtrak under said bond all costs and damages, if any suffered by them in the event that Amtrak does not succeed in this action.
IT IS SO ORDERED.