Opinion
Case No. 01 C 7743
January 14, 2002
ORDER
Plaintiffs are the nation's major freight railroads (the "Railroads"). They seek preliminary injunctive relief against the defendant, Brotherhood of Locomotive Engineers ("BLE"), which has allegedly threatened to conduct strikes over the Railroads' introduction of remote locomotive control technology and assignment of remote control work to conductors and trainmen. These conductors and trainmen are represented by another union, the United Transportation Union ("UTU"). For the following reasons, the court concludes that the Railroads are entitled to an injunction.
The railroads include The Burlington Northern and Santa Fe Railway ("BNSF"), Consolidated Rail Corporation ("Conrail"), CSX Transportation ("CSXT"), Kansas City Southern Railway ("KCS"), Norfolk Southern Railway ("NS"), and Union Pacific Railroad ("UP").
Background
The following facts are undisputed. Collectively, the Railroads carry more than 95 percent of the rail freight traffic in the United States. BLE is the collective bargaining representative of locomotive engineers while UTU is the collective bargaining representative of conductors, trainmen, yard foremen, helpers, switchmen, and yardmen (collectively, "ground service employees").
This case involves the introduction of new technology in terminal operations, which consists of operations around a terminal, "principally switching to assemble and disassemble trains and pick up and delivery of cars, generally at slower speeds." (Pls.' Mem. Supp. Mot. Prelim. Inj. ("Pls.' Mem.") at 2.) In most terminal operations, one or two ground service employees are paired with an engineer, who sits in the locomotive cab. The ground service employees direct the switching of cars onto different tracks, while the locomotive engineer controls the locomotive with a throttle and brake to accomplish the moves directed by the ground employees' signals.
Recently, the Railroads decided to implement a sophisticated computer system that "makes it possible for ground-based employees to operate locomotives by remote control in and around certain terminals. This system will allow a single individual to conduct switching operations." (Pls.' Mem. at 3.) Under the remote control system, an on-board computer is operated with a remote control device by an employee on the ground. The system makes it unnecessary to have an employee inside the locomotive. The Railroads claim that the new technology increases productivity and reduces accidents. The Railroads decided to assign operation of the remote control system to conductors and trainmen, represented by UTU, rather than locomotive engineers. This is the subject of the parties' dispute.
On September 26, 2001, the Railroads entered into a "Letter of Intent" with the UTU in which remote control technology is assigned to employees represented by UTU. (Compl. Ex. 1.) On October 5, 2001, Don M. Hahs, president of BLE, sent a letter to the Railroad signatories of the Letter of Intent objecting to the Railroads' plans for remote control technology. The Railroads understand the BLE letter to be an explicit strike threat. The BLE does not deny that it intends to enter into a strike if the Railroads assign the remote control technology operations to ground service employees and not locomotive engineers.
Discussion
The Railroads are entitled to preliminary injunctive relief if they establish: (1) a reasonable likelihood of success on the merits; (2) irreparable injury and no adequate remedy at law; (3) that the threatened harm to the plaintiff outweighs the harm that an injunction would cause the defendant; and (4) that the injunction will not harm the public interest. Cox v. City of Chicago, 868 F.2d 217, 219 (7th Cir. 1989).
In this case only the first requirement, a reasonable likelihood of success on the merits, is seriously in dispute. If the court finds that the first requirement has been met, the other three issues are clearly satisfied. As to the second requirement, a nationwide strike by the BUS would clearly create irreparable harm to the Railroads. As to the third requirement, assuming that an arbitrator could provide an adequate remedy, the balance of harms in this case favors an injunction. Finally, it seems clear that a preliminary injunction preventing the union from striking would not harm the public interest but protect it, as a wide variety of industries depends on the Railroads to be able to operate.
The Railroads argue that the parties' existing collective bargaining agreements permit the planned introduction of the remote control technology and its assignment to non-BLE members. Therefore, the Railroads argue, a strike by the BLE would be illegal. The BLE disagrees, arguing that locomotive engineers have exclusive jurisdiction over work involving the operation of locomotives. If the BLE is correct, then it is empowered to engage in a strike. This court must decide whether an injunction barring the union from striking should issue. To make this determination, the court must apply the analysis set forth by the Supreme Court pursuant to the Railway Labor Act, 45 U.S.C. § 151 et seq. ("RLA").
I. RLA Standards
The RLA was enacted "to provide a machinery to prevent strikes." Texas N.O. R.R. v. Bhd. of Ry. Clerks, 281 U.S. 548, 565 (1930) (internal quotations omitted); see RLA § 2(1), 45 U.S.C. § 151 a(1). The question presented by this case is whether the dispute between the BUS and the Railroads is a "major" or a "minor" dispute. Minor disputes are "subject to the exclusive jurisdiction of the National Railroad Adjustment Board." Ry. Labor Execs. Assoc v. Norfolk Western Ry. Co., 833 F.2d 700, 702 (7th Cir. 1987) (" Norfolk Western"). In other words, minor disputes are subject to compulsory arbitration. A union strike during a minor dispute is prohibited, pending arbitration. Therefore, "[c]ourts may enjoin strikes arising out of minor disputes." Consol. Rail Corp. v. RLEA, 491 U.S. 299, 304 (1989) (" Conrail").
However, if the dispute is major, it is subject to section 6 of the RLA, 45 U.S.C. § 156, which requires negotiation between the parties. If the parties fail to reach an agreement on the issue, "a major dispute may escalate into a strike." Bhd. of Ry., Airline S.S. Clerks, Freight Handlers, Express Station Employees v. Atchison, T. S.F Ry. Co., 847 F.2d 403, 406 (7th Cir. 1988) ("BRASCFHESE"). Thus, if the court concludes that the dispute is major, it should deny the Railroads' requested injunction.
"In essence, a major dispute involves the creation of a contract or a change in the terms of an existing contract, while a minor dispute involves the interpretation or application of an existing contract." Id. A dispute is "minor" if it can be resolved by interpreting an existing agreement. Conrail, 491 U.S. at 305. In interpreting existing agreements, courts recognize that "collective-bargaining agreements may include implied, as well as express, terms." Id. at 311. In addition, the parties' "practice, usage and custom is of significance in interpreting their agreement." Id. (internal quotations omitted). On the other hand, major disputes relate to the formation of collective bargaining agreements. "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." Elgin, J. E. Ry. Co. v. Burley, 325 U.S. 711, 723 (1945), aff'd upon reh'g, 327 U.S. 661 (1946).
If the carrier claims (as the Railroads do) that the parties' agreement gives it the right to make a decision about working conditions without prior negotiations, the dispute is deemed minor unless the carrier's position is "not arguably justified, obviously insubstantial, spurious [or] frivolous." Conrail, 491 U.S. at 306. A carrier's interpretation is "insubstantial" when it would "undercut [RLA prohibitions] against unilateral imposition of new contractual terms." Id. at 306. In other words, the Railroads' claims in this case are frivolous only if they constitute a unilateral alteration of the existing collective bargaining agreements. The Supreme Court has recognized "the relatively light burden which the railroad must bear in establishing exclusive arbitral jurisdiction under the RLA." Id. at 307 (internal quotations omitted); see also BRASCFHESE, 847 F.2d at 406 ("[W]e resolve all doubts in favor of finding the dispute at issue to be minor."); BLE v. Atchison, T S.F. Ry. Co., 768 F.2d 914, 920 (7th Cir. 1985) (" Atchison, T. S.F. Ry.") ("[W]hen in doubt, the courts construe disputes as minor.").
In a case such as this, "it is important to emphasize what [the court] is not deciding." Norfolk Western, 833 F.2d at 707. The court is not deciding whether the Railroads' plan to implement the new technology is justified by its agreements with the OLE. The court is merely deciding whether the Railroads' argument that the parties' agreement justifies its plan is "not frivolous or obviously insubstantial." Id.
II. Major v. Minor Dispute
The Railroads argue that the dispute between the parties is a minor dispute because they make a nonfrivolous claim that the parties' existing agreements permit the proposed technology plan. To support their claim, the Railroads make three basic arguments: (I) the parties' collective bargaining agreements explicitly permit the assignment of the technology to non-BLE members; (2) there is an implied agreement between the parties that permits the Railroads' plan; and (3) at least one arbitrator has agreed that operation of the remote control technology at issue is not within the specific duties of locomotive engineers. The BLE essentially argues that the dispute between it and the Railroads is a major dispute because the operation of the remote control technology is a duty clearly reserved for locomotive engineers by the parties' agreements. Therefore, the BUS argues, if the Railroads assign operation of the technology to ground service personnel, this would constitute a unilateral alteration of the parties' agreement.
A. Collective Bargaining Agreements
"To determine whether the dispute in this case is a major or minor dispute, this court must refer to the parties' existing collective bargaining agreement." Norfolk Western, 833 F.2d at 705. The Railroads claim that "there are no BLE agreement provisions that bar the railroads from introducing remote control (or other new technology) at the sites at issue." (A. Kenneth Gradia See. Dec. ¶ 5.) "Nor are there any agreement provisions covering these sites that limit the railroads' right to assign the operation of remote control technology or that require such operations to be assigned to employees represented by BLE." ( Id.) The only provision in the agreements to which the BLE could point, the Railroads argue, is a so-called "scope rule." ( Id. ¶ 6.) Examples of these rules provide that "locomotive engineers shall have preference for positions as engineers" on locomotives and that no non-BLE employees may "supplant or substitute in the exclusive work of any employee working under BLE Agreements." (Gradia Sec. Dec., Att. 2 at 2.) The Railroads do not dispute this language, but argue that such provisions do not apply here. The Railroads argue that under the remote control system, ground service employees are not given positions as "engineers" and do not "supplant or substitute in the exclusive work" of engineers. Rather, the Railroads argue that the engineers are being replaced by the remote control technology itself which is not prohibited in any of the BUS agreements.
It appears that there is no specific provision within the parties' agreements that addresses the introduction of remote control technology or that gives exclusive jurisdiction over all operation of locomotives to members of the BLE. The BLE cites a 1996 agreement, no longer in effect, which stated that engineers must be used to "operate all sources of motive power . . . on any and all tracks of Southern Pacific Lines." (Defs.' Mem. Support Cross-Mot. Dismiss Opp. Pls.' Mot. Prelim. Inj. ("Defs.' Mem.") at 7 n. 2.) Otherwise, the BLE points to no other similar explicit provision. In fact, the BUS admits that the agreements "do not specify the precise details of locomotive operation placed under the engineer's control." (Def's Mem. at 14.)
The Railroads point to a specific provision in a 1986 agreement between the parties which, they argue, explicitly allows the planned implementation and assignment of the new technology. In that agreement, ground service employees (non-BLE members) are given permission to perform a number of items of work, including using "communication devices." (Deels. Docs. Subject to Joint Stip. ("Joint Stip.") Ex. 9 at 16.) The Railroads have concluded that the remote transmitters to be used by ground service personal in order to control the onboard computers must be defined as "communication devices."
The court is not convinced that the remote transmitters could correctly be defined as "communication devices," as it is evident that the devices allow the operator to have more direct control over the movement of a locomotive than someone with, for instance, a walkie-talkie communicating with a locomotive engineer on board the train. However, the court need not decide whether the Railroads' interpretation of this provision is correct or incorrect, because the court holds that the Railroads have provided other evidence sufficient to support a nonfrivolous argument that the parties' agreements permit the proposed technology plan.
B. Implied Agreements
When the parties' agreement is silent on a specific issue, the court must determine whether there is a "mutually acceptable implied working condition within the parties' course of dealing." Norfolk Western, 833 F.2d at 705. of course, "parties cannot use evidence of past practices to contradict the explicit language of their written agreement in an effort to change the characterization of a dispute as either major or minor." Id. at 705 n. 4. However, in this case the parties' agreement is silent on the issue of implementing remote control or any other technology that would eliminate the need for engineers inside the locomotive. Therefore, this court may rely on evidence of the parties' past practices relating to this technology.
The Railroads contend that there is a past industry practice that permits the introduction of remote control technology without prior negotiation. The BLE, on the other hand, argues that locomotive engineers have traditionally held exclusive jurisdiction over the operation of locomotives in terminals, and therefore there is an implied agreement that the Railroads may not assign the technology to non-BLE members.
1. Introduction of new technology
First, the Railroads point to seven instances in which railroads implemented new technology without prior union consent. However, none of these examples show an implied agreement specifically between the Railroads and the BLE, as is necessary to establish an implied contractual term. See Norfolk Western, 833 F.2d at 705 (implied agreements are indicated by the "parties' course of dealing") (emphasis added). More helpful to the Railroads are three examples of "a specific past practice permitting introduction of remote control locomotive technology in the rail industry." (Pls.' Mem. at 16.) The most favorable example is a 1995 arbitration award regarding a dispute between the Burlington Northern Railroad Company and the BLE. ( BLE v. Burlington Northern R.R. Co., Public Board No. 5464, Award No. 11, Joint Stip. Lx. 17.) That case involved the movement of train cars at a Nebraska car repair facility. The BLE distinguishes this case because it involved a repair facility and not terminal operations or transit, but the court finds the example relevant nonetheless.
At the Nebraska facility, movement of cars was initially accomplished by two switch engines, which were operated by non-BLE members. By 1988, the railroad had replaced this system by introducing a "remote (radio) controlled, on-rail, self-propelled machine," which was also operated by non-BLE members. After four years, the BLE formally objected, arguing that the new equipment should be operated by engineers, but the arbitrator sided with the railroad "on the basis of acquiescence," because the union had waited so long to object. ( Id. at 3.) This evidence suggests, albeit tenuously, that the Railroads have used self-propelled equipment that was understood by the parties not to encompass the exclusive duties of locomotive engineers.
2. Exclusive jurisdiction of engineers
The BLE contends that the parties have an implied agreement that locomotive engineers have exclusive jurisdiction over all operation of locomotives. The BLE states that "[s]ince 1919, existing agreements and historical practices between the carriers and the BLE specifically have reserved to BLE-represented locomotive engineers the operation of the carriers' locomotives in freight yards and on the main lines." (Def.'s Mem. at 5.) The BLE argues that during World War I, the Director General of Railroads of the United States Railroad Administration issued General Order 27, which stated that "locomotive engineers shall have preference for positions as engineers or motormen." ( Id. at 6.) The BLE claims that the intent of this order was preserved in subsequent collective bargaining agreements between the BLE and the Railroads. "Thus, it has not been necessary for written agreements to specifically delineate each aspect of the locomotive engineer's responsibilities, because these responsibilities have been known to labor and management alike since 1919." ( Id.)
Ultimately, the BLE argues that an implied agreement between the parties requires that the "locomotive engineer [be] the employee responsible for operating the locomotive, whatever the means." ( Id. at 14.) This characterization of the parties' agreement is likely too broad. The BLE has provided no examples of a past practice involving the assignment of remote control technology. Moreover, a review of the technology itself reveals that the Railroads' claims are at least arguably justified.
C. Remote Control Technology
The Railroads argue that the proposed remote control technology consists of two separate pieces of equipment: the on-board computer and the remote transmitter. According to the Railroads, the on-board computer will essentially take the place of the engineer, as it will control the movement and speed of the train, adjusting for necessary variants, such as the grade of the track. In other words, the Railroads contend that this is "just another instance of where work has been lost due to technological changes." ( UTU v. Norfolk Southern Ry. Co., Public Law Board No. 5252, Award No. I, Joint Stip. Lx. 19 at 4.) The Railroads argue that the ground service personnel, who will operate the remote transmitter, will not perform any of the engineers' exclusive duties. The remote transmitter, the Railroads argue, is merely a communication device which tells the on-board computer when to move and at what speed, precisely the current function of ground service personnel when communicating with locomotive engineers.
The BLE argues, on the other hand, that it is not the on-board computer that will replace the engineer, but the ground service personnel. The union argues that the operator of the remote transmitter is, in effect, the operator of the locomotive. The BLE claims that the transmitter is equipped with knobs that act as a throttle and brake, similar to those currently operated by engineers on board the locomotives.
The court holds that while it is arguable that the operation of the remote control technology is exclusively reserved to locomotive engineers, the opposite is also arguable. The Railroads point out that arbitrators in disputes such as this have often found that "technological advances do not automatically constitute a contractual violation." ( Id.) In one case, an arbitrator found that "there is no doubt that a human element has been eliminated by the computerization of the calculation and billing process. This does not, however, constitute a violation of the Agreement. Work eliminated by technological advances loses its contract protection." ( Id.) (citation omitted)
As a specific example, the Railroads cite Canadian National Ry. v. BLE, which considered a dispute with facts quite similar to the present case. (Joint Stip. Ex. 10.) Although the Canadian arbitration case did not involve the same collective bargaining agreements as are before the court here, the facts are similar enough that the court finds them relevant. In the Canadian case, the BLE had complained that the same remote control technology disputed in this case should have been assigned to engineers. The arbitrator concluded that the work performed by the operator of the remote control technology did not constitute work exclusively to be performed by engineers. "[I]t cannot be said that the yard operations employee is handling or operating the locomotive with anything approaching the degree of control and refinement previously exercised by a locomotive engineer." ( Id. at 10.) The arbitrator determined that the locomotive engineer was not being replaced by ground service employees. Rather, "it is more accurate to say that the locomotive engineer's position has been abolished and that that employee has been replaced by a microprocessor and interface system which automatically performs the functions previously assigned to the locomotive engineer." ( Id.)
Like the arbitrator in the Canadian case, an arbitrator may indeed decide that the on-board computer completely eliminates the role of the engineer, and that operation of the remote transmitter does not involve duties exclusively reserved for engineers. This court stresses that it is in no way agreeing with the Railroads' interpretation of the collective bargaining agreements; in fact, it is arguable that locomotive engineers should have exclusive control over operation of the remote control transmitters. However, the court need not make this determination. "The resolution of the case depends upon the interpretation of the agreement, and while we realize that the [Railroads'] actions might be in violation of that agreement, it is for the appropriate adjustment board, and not this court, to draw the boundaries of the practices allowed by the agreement." Nat'l Ry. Labor Confrence v. Int's Assoc. Machinists Aerospace Workers, 830 F.2d 741, 748 (7th Cir. 1987). The Railroads have successfully established a nonfrivolous argument that the agreements permit their proposed technology plan. Therefore, the dispute is minor.
III. Bargaining Process
The BLE argues that the parties have entered collective bargaining regarding the implementation of the remote control technology, and therefore the court must apply a different standard than the traditional major/minor dispute analysis. In support of this argument, the BLE cites Detroit Toledo Shore Line R. Co. v. UTU, 396 U.S. 142, 149 n. 14, 150-52 (1969), for the proposition that when the parties are bargaining over an issue, neither may unilaterally alter the status quo with regard to that issue.
The BLE points out that the Railroads issued the following notices of bargaining proposals on the BLE, in compliance with section 6 of the RLA, on November 1, 1999:
Eliminate any existing restrictions on the use of employees, whether or not represented by the Organization, to perform any work as and where needed without claim or penalty; and provide that a carrier in its discretion may require any employees represented by the Organization to perform any work as and where needed that the carrier deems appropriate.
If and where any restrictions exist, provide that there will be no restrictions on (or additional compensation for) the use of new technology by employees in any craft, and such use shall not create an exclusive right thereto.
(Richard Radek Dec., Defs.' Mem. Att. ¶ 17.) The BUS argues that this language indicates that the Railroads knew that the current collective bargaining agreements do not allow the Railroads to assign the remote control technology to non-BLE members. The Railroads respond that this language was not proposed with the intent to bargain the assignment of the remote control technology. Rather, the section 6 notices are "broad, generic requests for changes in any restrictions, not changes to permit operation of remote control in particular." (Pls.' Reply at 12.)
In further support of its argument, the BLE points to the Railroads' negotiations with the UTU. This, the BLE argues, also indicates the Railroads' recognition that they are not permitted to implement the new technology without negotiation. The Railroads deny the significance of their negotiations with the URN arguing that in their discussions with the UTU, they have "made clear . . . that they have the right under existing agreements to assign the [remote control] work to ground service personnel." (Gradia Third Dec. ¶ 9)
The BLE also argues that federal regulations require that any employees who operate remote control technology such as the equipment at issue in this case must be specially trained and certified. Therefore, the BLE argues, the Railroads will violate federal regulations if they implement this new technology. The Railroads respond that they have every intention of complying with federal regulations in order to implement the technology.
The court is not convinced that the Railroads' section 6 notices indicate their intention to enter collective bargaining specifically regarding the implementation and assignment of the remote control technology. In fact, the BLE's own section 6 notices weaken its position. For example, its section 6 notice served on CSXT states that "[t]echnologically advanced locomotives or motive power equipped for remote control will be operated and/or controlled by a Locomotive Engineer." (Joint Stip. Ex. 44 at 3.) This language belies the BLE's conclusion that the existing collective bargaining agreements clearly prohibit the assignment of remote control technology to ground service personnel.
Furthermore, the BLE's reliance on Shore Line is misplaced. The pertinent issue in the present case is not whether the parties are bargaining over assignment of the new technology, but rather whether the Railroads' proposed plan would "violate the status quo as defined by the collective bargaining agreements." Chicago Northwestern Trans. Co. v. RLEA, 908 F.2d 144, 153 (7th Cir. 1990), cert denied, 498 U.S. 1120 (1991). The Seventh Circuit has addressed this distinction:
[W]hat the agreements do not forbid, either explicitly or implicitly . . ., the railroad is allowed to do as a matter of contract; and what the railroad is allowed to do is, one might suppose . . . the status quo, even if the railroad has not been doing it. Redecorating the railroad's executive dining room does not violate the status quo even if this is the first time the room has ever been redecorated and the collective bargaining agreement is silent about redecoration.Id. at 153-54. In other words, if the existing agreements do not prohibit the implementation of the remote control technology, then the Railroads' proposal would not violate the status quo. See also Bhd. Ry. Carmen v. Missourt Pacific R.R. Co., 944 F.2d 1422, 1428 (8th Cir. 1991) ("[O]nce the court finds that an employer's actions are arguably justified under the terms of existing agreements, the status quo issue is mooted.") (internal quotation omitted); CSX Transp., Inc. v. UTU, 879 F.2d 990, 999 (2d Cir. 1989), cert. denied, 493 U.S. 1020 (1990) ("[T]here is generally no duty to maintain the status quo during a minor dispute, but only during a major dispute.").
Thus, the proper inquiry is whether assigning the remote control technology to ground service personnel is arguably permitted by the parties' existing agreements. As this court has discussed, the Railroads have provided a nonfrivolous argument that it is. Therefore, the dispute is minor and the Railroads are entitled to an injunction.
Conclusion
The court concludes that the plaintiffs are entitled to an injunction barring the defendant from engaging in a strike. As requested by the parties, the court will hold a brief hearing on January 16, 2002 at 10:00 A.M. to discuss the terms of the injunction order. The parties are ordered, prior to the hearing, to meet and confer in an attempt to agree on language which conforms to this decision. Agreement to an injunction order as to form will not constitute a waiver of any arguments heretofore made by any party. At the hearing, the court will resolve any disputes concerning the language of the injunction order.