Wightman v. Springfield Terminal

Court Case Details
Court Case Opinion

                United States Court of Appeals
                            United States Court of Appeals
                    For the First Circuit
                                For the First Circuit

No. 96-1378

                 DOUGLAS T. WIGHTMAN, ET AL.,

                   Plaintiffs, Appellants,



                    Defendants, Appellees.




        [Hon. Richard G. Stearns, U.S. District Judge]



                    Torruella, Chief Judge,
                Bownes, Senior Circuit Judge,
                  and Stahl, Circuit Judge.


Harold A. Ross with  whom Ross & Kraushaar Co., L.P.A., Shelley B.
Kroll, and Segal, Roitman & Coleman were on brief for appellants.
John R. Nadolny  for appellee Springfield Terminal Railway Co. and
Norton N.  Newborn with whom Norton  N. Newborn Co., L.P.A.,  James F.
Freeley, Jr. and Freeley  & Freeley were on brief for  appellee United
Transportation Union.


                      November 19, 1996

          STAHL, Circuit Judge.   Appellants, Brotherhood  of
                      STAHL, Circuit Judge.

Locomotive  Engineers and several  of its  individual members

("BLE") sought to  enjoin enactment  of a clause  in a  newly

negotiated collective bargaining agreement  between Appellees

United Transportation Union ("UTU") and  Springfield Terminal

Railway Co. ("ST"), as  a violation of the Railway  Labor Act

("RLA"), 45 U.S.C.    151-188.  The district court denied the

injunction  and granted summary  judgment for  UTU and  ST on

BLE's complaint.   Wightman v. Springfield  Terminal Ry. Co.,

915 F. Supp. 503, 507 (D. Mass. 1996).  BLE now appeals.


          The  RLA governs  labor  and collective  bargaining

arrangements between carriers, or  employers, and unions.  ST

is a railroad operator located in Springfield, Massachusetts,

and a carrier for  purposes of the RLA.  BLE  and UTU are two

of  several  trade  unions  who  have  collective  bargaining

agreements with ST.  The  individual plaintiffs in this  case

belong to BLE.      The RLA authorizes carriers and unions to

establish union shops.  A union shop in the railroad industry

simply means that in order to remain employed with a railroad

company, employees  must belong to  one of the  national, RLA

recognized  railroad   unions.     See  45  U.S.C.       152,

Eleventh(a)  and (c).1    ST and  the  unions with  which  it


1.  45 U.S.C.    152 has  been drafted  in subsections  First
through Eleventh.  Section 152, Eleventh contains subsections
a through d.  We note the unusual numbering scheme to explain


maintains collective bargaining agreements have established a

union shop.  

          Employment in the railroad industry revolves around

crafts or classes of work, each of which is represented  by a

different  union.    Train   service  and  engineer   service

constitute  two   such  crafts.     The   former  encompasses

conductors, brakemen,  trainmen and  yardmen, and  the latter

includes primarily locomotive engineers.   UTU represents the

train service  craft and BLE represents  the engineer service


          By  practice,  junior  engineers  advance  from the

ranks of the train service employees.  Over the course of any

given  year,  however,  the   amount  of  engineer  work  may

fluctuate.   During periods of reduced  engineer work, junior

engineers may have to return temporarily to train  service in

order to remain employed.2  Junior engineers, therefore, have

an  economic  interest  in  maintaining  their  train service


          Prior  to  1995, the  UTU-ST  collective bargaining

agreement  allowed non-UTU  member engineers  to continue  to

accrue  train  service  seniority.   In  1995,  however,  UTU

negotiated a  provision known  as Article 21,  which requires


our citation.  

2.  In its reply brief, BLE appears to hint that the  ebb and
flow  of train service employees to and from engineer service
occurs with less regularity today than in prior eras.   


that employees moving from  train service to engineer service

pay dues to UTU in  order to maintain and continue  to accrue

their train service seniority.   When BLE objected to Article

21,  ST offered  it a similar  provision which  BLE rejected,

apparently  believing  it  to  be  of  little  value  to  its


          BLE then challenged  Article 21 on RLA grounds.  It

sought preliminary injunctive relief which the district court

denied.   Subsequently, on cross motions,  the district court

granted summary judgment in favor of UTU and ST.  This appeal


                      Standard of Review
                                  Standard of Review

          We review  the award  of summary judgment  de novo.

Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 11 (1st Cir. 1996).

Summary  judgment is appropriate in the  absence of a genuine

issue  of material fact, when the moving party is entitled to

judgment as  a matter of  law.   See Fed. R.  Civ. P.  56(c).

Neither   party  may   rely  on  conclusory   allegations  or

unsubstantiated  denials,  but must  identify  specific facts

deriving   from  the   pleadings,  depositions,   answers  to

interrogatories,  admissions  and  affidavits to  demonstrate

either the  existence or absence  of an  issue of fact.   See

Fed. R. Civ. P. 56(c) and (e).

          Cross  motions for  summary judgment  neither alter

the  basic Rule 56 standard, nor warrant the grant of summary


judgment per se. See  Wiley v. American Greetings  Corp., 762

F.2d  139, 141 (1st Cir. 1985).  Cross motions simply require

us  to  determine  whether  either of  the  parties  deserves

judgment as  a matter of law on  facts that are not disputed.

Id.    As always,  we resolve  all  factual disputes  and any

competing, rational inferences in the light most favorable to

the party  against whom  summary judgment  has entered.   Den

Norske Bank v.  First Nat'l  Bank of Boston,  75 F.3d 49,  53

(1st Cir. 1996).  


          BLE raises  three basic  arguments,  each of  which

involves a different statutory provision  of the RLA.  First,

BLE contends, Article 21 violates the prohibition of mandated

dual unionism  under 45 U.S.C.    152, Eleventh(c).   Second,

BLE   urges,  Article   21   impermissibly  interferes   with

employees' rights to organize and choose their own collective

bargaining representative  under 45 U.S.C.     152, Third and

Fourth.   Finally,  BLE asserts,  the RLA,  45 U.S.C.    156,

required  UTU  and ST  to provide  BLE, an  interested party,

notice of  their contract negotiations and  an opportunity to

participate in  them.   We conclude  that the  district court

ably analyzed each of BLE's arguments and properly found them

lacking in substance.  We affirm.

          A.  45 U.S.C.   152, Eleventh(c)


          According to  BLE, Article 21 violates  45 U.S.C.  

152,  Eleventh(c), part of  the union shop  provisions of the

RLA.  Analysis of BLE's argument requires a brief detour into

the background  of the  union shop provisions  generally, and

how   152, Eleventh(c) fits into the union shop scheme.  

          Under 45  U.S.C.    152, Eleventh(a),  carriers and

unions may  establish union shops.   Section 152, Eleventh(a)

specifically  provides  that carriers  and  unions  may "make

agreements, requiring as a condition of continued employment,

that  . . . all  employees shall become  members of the labor

organization  representing their  craft or  class."   Read in

isolation, the  plain language of this  provision would allow

carriers and unions to require employees to belong not to the

union  of their  choice, but  to the  union certified  as the

representative of their craft or class.

          Organized labor petitioned  Congress for the  union

shop  option  in  order  to eradicate  the  problem  of "free

riders,"  railroad employees who do not pay dues to any union

but  receive whatever benefits collective bargaining confers.

See generally Pennsylvania R.R. Co. v. Rychlik, 352 U.S. 480,

489-94  (1957).   In  acceding to  labor's request,  however,

Congress recognized that the intercraft mobility not uncommon

in the railroad  industry could pose a  problem for employees

in  a  union shop.   Under     152, Eleventh(a),  an employee

shuttling  between train  service and engineer  service could


either  be forced to change unions  or to belong and pay dues

to  two unions until reaching a level of seniority sufficient

to  stabilize him  as  an engineer.    As the  Supreme  Court

pointed out,  "[t]he former alternative would,  of course, be

expensive and sometimes impossible, while the latter would be

complicated and  might mean the  loss of seniority  and union

benefits."  Id. at 490.       Congress  attempted  to  tailor

union shops to accommodate intercraft mobility through   152,

Eleventh(c).  That subsection provides, "[t]he requirement of

membership in a labor organization in [a union shop] shall be

satisfied  . .  .  if said  employee  shall hold  or  acquire

membership in any one of the labor organizations, national in

scope, organized in accordance with this chapter."  45 U.S.C.

  152, Eleventh(c).   On its face,   152  Eleventh(c) appears

to contradict   152, Eleventh(a) by allowing any  employee in

any  union  shop  to belong  to  any  of  the RLA  recognized

railroad unions. 

          The  purpose   of     152,   Eleventh(c),  however,

significantly circumscribes its language.   See Rychlik,  352

U.S.  at 488, 492; see  also Landers v.  Nat'l R.R. Passenger

Corp.,  814  F.2d  41,  44-45 (1st  Cir.  1987)  (recognizing

limited applicability of   152, Eleventh(c)), aff'd, 485 U.S.

652 (1988).  Despite its broad language, "the only purpose of

Section  2, Eleventh(c)  was  a very  narrow one:  to prevent

compulsory dual  unionism or  the necessity of  changing from


one  union to  another when  an employee  temporarily changes

crafts."   Landers v.  Nat'l R.R. Passenger  Corp., 485  U.S.

652, 657-58  (1988); Rychlik, 352  U.S. at 492.  Section 152,

Eleventh(c) does  not exist  to benefit unions  by permitting

them to recruit  members from the ranks  of other established

unions, or to provide railroad employees with a general right

to  join   unions  other   than  the   designated  bargaining

representative  of their  craft,  except to  meet the  narrow

problem of intercraft mobility in a union shop.  Rychlik, 352

U.S. at 493.    

          Bearing  in mind the  context and purpose  of   152

Eleventh(c), we turn to  BLE's challenge to Article 21.   BLE

essentially attacks  Article 21 from two angles.   First, BLE

contends, Article 21 constitutes  either a   152, Eleventh(a)

union  shop agreement that violates    152, Eleventh(c) or an

amendment to  the existing  ST-UTU agreement that  violates  

152, Eleventh(c).  Second, BLE argues, Article  21 will upset

"the cost  sharing scheme which was continued and fostered by

the 1951 union shop amendments."  We disagree.  

          On its  face, Article  21 can neither  constitute a

union shop agreement by  itself, nor an amendment to  the ST-

UTU  agreement that  violates  Eleventh(c).   Nothing in  the

language  of Article  21 requires  membership in  UTU or  any

other union as a condition of employment.  See Brotherhood of

Locomotive Eng'rs v.  Kansas City  S. Ry., 26  F.3d 787,  793


(8th  Cir.)  (  152,  Eleventh(c) applies  only  to a    152,

Eleventh(a) union  shop agreement), cert. denied,  115 S. Ct.

320 (1994); Dempsey v. Atchison, Topeka and Santa Fe Ry. Co.,

16 F.3d 832, 838 (7th Cir.) (same), cert. denied, 115  S. Ct.

82 (1994).  Article 21 does not require an engineer to choose

between  dual union  membership or  unemployment; Article  21

simply  requires an engineer to  choose whether to retain and

continue  to accrue  seniority  in the  train service  craft.

Wightman, 915 F. Supp. at 506.  

          In  Dempsey v.  Atchison, Topeka  and Santa  Fe Ry.

Co.,  16 F.3d 832, 838  (7th Cir. 1994),  the Seventh Circuit

faced  a BLE  challenge  to a  provision requiring  engineers

desirous of accumulating  additional train service  seniority

to  pay dues  to UTU.   Failure  to pay,  however, would  not

affect accrued seniority.  In examining whether the provision

constituted  a  union  shop  agreement,  the Seventh  Circuit

relied in part on the fact that it did not require payment of

dues to  UTU in order  to retain accrued  seniority, implying

that  such   a  provision  might  constitute   a  union  shop

provision.   Id. at 838 (citing NLRB v. Manitowoc Engineering

Co.,  909 F.2d  963, 969-71  (7th Cir.  1990), cert.  denied,

Clipper  City Lodge No. 516  v. NLRB, 498  U.S. 1083 (1991)).

Ultimately, the  court concluded that the  provision at issue

did not  create any  conditions of continued  employment, and


therefore, did not constitute a   152, Eleventh(a) union shop

agreement.  Id.  

          In our view,  the extra step Article  21 takes with

respect to  accrued seniority does not  create any conditions

on employment  different from the  provision in Dempsey.   As

indicated,  nothing  on  the  face  of  Article  21  requires

employees  to  belong to  UTU  in order  to  remain employed.

Despite  the fact  that Article  21 takes  the extra  step of

conditioning  seniority retention  and  accrual on  continued

dues payment, an engineer who chooses  BLE over UTU satisfies

either of the UTU-ST  or BLE-ST union shop requirements.   To

the extent, therefore, that  Dempsey implies that a provision

such as Article 21 might constitute a union shop agreement or

amendment, we respectfully disagree.   

          BLE, however, asserts that engineers who choose BLE

over UTU run the  risk of unemployment when shuttled  back to

train  service,  since  they   will  have  no  train  service

seniority.   According to BLE, this  effectively forces those

engineers at the  lower end  of the  engineer seniority  list

either to belong to UTU and BLE, or to UTU instead of BLE, as

a  condition of continued employment at ST.  BLE asserts that

  152, Eleventh(c) allows a railroad employee in a union shop

to  change  membership to  any  other  RLA recognized  union,

"without  putting   himself  out  of   compliance  with   the

membership requirement  of a  valid union shop  agreement and


thereby  cause a  loss of  seniority and  employment rights."

BLE's argument  requires  us to  determine  whether      152,

Eleventh(c), in protecting  against compulsory dual unionism,

elevates  seniority  into   a  statutorily  protected   right

employees may take with them as they move from craft to craft

and union to union.      

          By  its own  language,  the  RLA governs  relations

between   carriers,   unions  and   employees,  and      152,

Eleventh(c)  dictates  the  limits  of  what carriers  and/or

unions can demand of employees in a union shop.  Within those

parameters,  which include  a prohibition on  compulsory dual

unionism, the RLA makes no  mention of seniority, and notably

fails to designate seniority as a protected employment right.

          In the absence  of a  legislative pronouncement  to

the contrary, union contracts  typically define the scope and

significance of seniority rights.  Aeronautical Indus.  Dist.

Lodge v.  Campbell, 337 U.S. 521, 526 (1949); Trailmobile Co.

v.  Whirls,  331  U.S.  40,  53   n.21  (1947).    Seniority,

therefore,  does   not   stem  from   the   employer-employee

relationship and by extension become an employment right, but

rather  from  either  a statute  or  the  four  corners of  a

collective bargaining agreement, in this case between a union

and  a carrier.  National Labor Relations Bd. v. Whiting Milk

Corp., 342 F.2d  8, 10-11 (1st Cir. 1965).  It is by now well


established  that  in  the  absence of  a  contract  creating

seniority rights, they do not exist.  See Dempsey, 16 F.3d at

839;  United Food  & Commercial  Workers Union  v. Gold  Star

Sausage  Co., 897 F.2d 1022, 1026 (10th Cir. 1990); Cooper v.

General  Motors Corp.,  651  F.2d 249,  250  (5th Cir.  1981)

(citing  cases);  Local 1251  Int'l  Union  of United  Auto.,

Aircraft and Agric. Workers of Am. UAW v. Robertshaw Controls

Co.,  405  F.2d  29,  32-33  (2d  Cir. 1968)  (citing  cases)

(overruling prior circuit precedent to the contrary).

          Seniority,   like   any   other  benefit   deriving

exclusively  from collective bargaining  agreements, does not

vest  in employees.  Robertshaw, 405 F.2d at 33; McMullans v.

Kansas, Okla. & Gulf Ry.,  229 F.2d 50, 53 (10th  Cir. 1956).

Instead,  seniority rights  are subject  to revision  or even

abrogation  with  the  termination  or renegotiation  of  the

collective bargaining  agreement.3  Dempsey, 16  F.3d at 839;

Robertshaw, 405 F.2d at  33; McMullans, 229 F.2d at 54.   Any

rights employees  have  in  seniority,  therefore,  are  tied

directly  to  the terms  of the  labor agreement  between the

carrier and the  union representing their craft.   Nothing in


3.  The Dempsey opinion ultimately  views seniority as we do,
despite  that court's  implication that  a provision  such as
Article 21 might constitute  a union shop agreement.   See 16
F.3d at 838-39.   Dempsey concludes  that seniority, born  of
the collective  bargaining agreement, is subject  to revision
or abrogation.  16 F.3d at 839.  We do not interpret Dempsey,
therefore, as supporting BLE's argument.  


the  RLA  changes  this  fundamental  tenet  of  labor  law.4

Dempsey, 16 F.3d at 840; McMullans, 229 F.2d at 53. 

          We recognize that Article 21 may make it attractive

for at least some engineers to choose UTU over BLE.   We stop

short, however,  of equating a union's successful negotiation

of a potential competitive  advantage over another union with

the  kind  of compulsory  dual  unionism    152,  Eleventh(c)

exists  to prevent.    See  Whiting  Milk,  342  F.2d  at  11

("Obtaining a benefit for employees may well encourage others

to join  a union but  that side effect  does not violate  the

[NLRB], for 'The truth is that  the union is a service agency

that probably encourages membership  whenever it does its job

well.'") (quoting Local 357, Int'l Bhd. of Teamsters v. NLRB,

365  U.S. 667,  675-76  (1961)).   We  conclude that     152,

Eleventh(c)  does not  provide  the statutory  basis to  vest

railroad employees with their accrued seniority.  

          Finally, BLE  asserts that Article  21 "upsets  the

sharing  of  costs of  representation  promoted  by the  1951

amendments" in violation of   152, Eleventh(c).


4.  BLE relies on  three cases in  support of its  contention
that Article 21 constitutes  an illegal union shop agreement:
Felter v. Southern Pac. Co., 359 U.S. 326 (1959), Birkholz v.
Dirks, 391 F.2d  289 (7th  Cir. 1968), vacated  as moot,  395
U.S. 210  (1969) and O'Connell  v. Erie Lackawanna  R.R., 391
F.2d  156 (2d  Cir.  1968), vacated  as  moot, 395  U.S.  210
(1969).    BLE asserted  these  cases  unsuccessfully to  the
Seventh Circuit  in support  of a nearly  identical argument.
See Dempsey, 16 F.3d at  838 n.6.  We concur in  that court's
conclusion that these cases are inapposite. 


          Section  152, Eleventh(c)  limits  employees  in  a

union shop  to membership  in those unions  which qualify  as

electors  of  the  union  representatives  on  the   National

Railroad  Adjustment  Board ("NRAB").    The  NRAB exists  to

settle   disputes   arising   under   collective   bargaining

agreements.  See  Rychlik, 352 U.S. at  487.  As the  Seventh

Circuit  pointed  out,  this requirement  limits  union  shop

participation  to  those  unions  which share  the  costs  of

administering  the NRAB,  and which  "join together  in other

respects  in  the  negotiating  and  policing  of  collective

bargaining agreements  under the  dispute  mechanisms of  the

RLA."   Dempsey, 16 F.3d at  840.  BLE appears  to argue that

Article 21  has the effect of depriving it of dues that would

offset its obligations to NRAB.  See id.  Nothing in the RLA,

however, guarantees BLE a particular level of dues  to offset

its obligations to NRAB.   Stated more broadly, the  RLA does

not protect any one union from competition  with another over

membership and dues.  

          B.  45 U.S.C.    152, Third and Fourth

          Section  152,  Third,   entitled  "Designation   of

representatives," provides  that neither unions  nor carriers

"shall in any  way interfere with,  influence, or coerce  the

other  in  its  choice  of representatives."    Section  152,

Fourth,   dealing  with   organization  and   the  collective

bargaining  process, grants  employees the right  to organize


and bargain collectively through representatives of their own

choosing,  and  provides that  no  carrier  may influence  or

coerce   employees   regarding    their   choice   of   labor

organization,  nor   deduct  dues  or  other   fees  of  such

organizations from employee wages.  BLE contends that Article

21 violates the employee freedom of choice embodied  in Third

and Fourth, and  also the prohibition  on wage deductions  in

Fourth.  Again, we disagree.

          In   TWA,  Inc.  v.   Independent  Fed.  of  Flight

Attendants, 489 U.S. 426, 441 (1989), the Supreme Court noted

that     152,  Third and  Fourth  operate primarily  in  pre-

certification contexts,  where unorganized employees  seek to

designate representatives and commence  collective bargaining

with employers.  The Court reasoned that the RLA contemplates

dispute resolution through private mechanisms, the success of

which depends on the independence of the employees' "putative

representative" and  on neither party's access  to the courts

to further their own  partisan ends.  Id. (quoting  Switchmen

v.  National Mediation Bd., 320 U.S. 297,  300 (1943)).  In a

post-certification context, by contrast, the  parties already

have  certified representatives  and a  collective bargaining

record in place.  In  post-certification disputes, therefore,

we  must  limit  our  intervention  to  cases  in  which  the

aggrieved union has no other remedy "to enforce the statutory

commands which Congress had written into the [RLA]."  Id.  


          We  have  concluded that  intervention  in  a post-

certification  dispute under     152,  Third and  Fourth will

occur in extremely limited  circumstances.  See National R.R.

Passenger  Corp.  v. International  Ass'n  of Machinists  and

Aerospace  Workers,   915  F.2d  43,  51   (1st  Cir.  1990).

Specifically, we will intervene upon demonstration of carrier

conduct reflecting anti-union animus, an attempt to interfere

with employee choice of collective bargaining representative,

discrimination,  or coercion.    Id.   In  addition, we  will

intervene when  a carrier  commits acts of  intimidation that

cannot  be remedied  by  administrative means,  or commits  a

fundamental attack  on the  collective bargaining process  or

makes a direct attempt to destroy a union.  Id.  

          BLE  purports  to  establish  a  genuine  issue  of

material  fact   by  listing  15  "facts"   which  it  claims

demonstrate  anti-BLE  animus  sufficient  to  justify  post-

certification judicial intervention.   We need not recite all

of them here.   We agree with  the district court that  BLE's

facts, even if all true, at best demonstrate sharp bargaining

practices  between unions  in an  effort to  gain competitive

advantage.  Wightman, 915 F. Supp. at 507.  While BLE's facts

evince competitive jockeying between it and UTU, they notably

fail to  demonstrate anti-BLE animus or  a fundamental attack


on the bargaining process by ST.5   Accordingly, the District

Court   correctly  declined  to   intervene  in   this  post-

certification matter.

          BLE also contends that  Article 21 violates    152,

Third and Fourth as a matter  of law.6  BLE offers  precedent

under  the National  Labor Relations  Act ("NLRA"),  which it

seeks to apply  analogically to this railroad dispute.  While

the NLRA may provide analogies that bear on interpretation of

the RLA,  the Supreme  Court has  emphasized  that "the  NLRA

'cannot be imported wholesale into the railway labor arena.'"

TWA,  489  U.S.  at  439 (quoting  Trainmen  v.  Jacksonville

Terminal, 394 U.S. 369, 383  (1969)).  We especially hesitate

to  employ   NLRA  precedent  in  light  of   the  clear  and

unequivocal  RLA  precedent  from  the  Supreme  Court,  this

circuit  and  others,  which  underscores the  limited  post-

certification  application of    152,  Third and Fourth.  See

TWA, 489 U.S. at  441 (limiting application of     152, Third

and  Fourth   to  pre-certification  contexts);   Nat'l  R.R.


5.  To  be  sure, it  does not  appear  that ST  was entirely
candid with BLE  regarding its negotiations with UTU  and the
substance of the  ST-UTU agreement.   The RLA, however,  does
not  compel ST to inform BLE of the substance of negotiations
with a third union, and we do not identify anti-BLE animus in
ST's actions.  

6.  BLE essentially  argues that  by making it  so attractive
for  engineers  to join  UTU, Article  21  has the  effect of
impermissibly interfering  with their  free choice  of union,
and  coercing them to join UTU, in violation of    152, Third
and Fourth.


Passenger, 915 F.2d at 51 (same); see also Kansas City S., 26

F.3d at 795; Dempsey, 16 F.3d at 841.  Finally,   BLE  argues

somewhat opaquely that a wage deduction provision only passes

RLA muster if  it comprises  part of a  union shop  agreement

under   152, Eleventh.  At the outset we note that Article 21

by itself  does  not  refer  to wage  deductions,  much  less

mandate  them.    Assuming  such  a  wage  deduction  exists,

however,  we disagree  with BLE's  interpretation of     152,

Fourth and Eleventh(b).  

          As indicated,   152, Fourth provides that  carriers

may  not  deduct union  dues  or  fees  from employee  wages.

Section 152, Eleventh(b), however, provides that carriers and

labor  organizations may  make agreements  providing for  the

deduction  of  "any  periodic   dues,  initiation  fees,  and

assessments" from employee wages as long as the  employee has

given  the  carrier written  permission.   45  U.S.C.    152,

Eleventh(b).   Section 152,  Eleventh(b), unlike Eleventh(c),

does  not limit  its applicability  to Eleventh(a),  or union

shop agreement situations.   See Kansas City S., 26  F.3d. at

794.  Read  together,    152, Fourth and  Eleventh(b) provide

that carriers may not  unilaterally deduct dues from employee

wages,  but may  do  so upon  the  agreement of  all  parties

involved.  See id.  Thus, even in the absence of a union shop

agreement,  employees  and  carriers  may  agree  to  a  dues

deduction schedule under   152, Eleventh(b).  


          C.  45 U.S.C.   156, Bargainable Interest

          BLE contends  that the District Court  erred in not

setting Article 21 aside on the  basis that UTU and ST failed

to  notify  BLE of  their  negotiations, and  afford  BLE the

opportunity to participate in them.  

          The    RLA    mandates    that   "[c]arriers    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"  to

interested  parties.  45 U.S.C.   156.  BLE identifies itself

as an interested  party, and contends that ST or  UTU owed it

notice.   BLE also  contends that  it has  joint jurisdiction

over collective bargaining between ST and UTU, at least  with

respect to  train service seniority,  by dint of  the routine

shuttling of employees between the train service and engineer

service crafts.   According  to BLE, that  joint jurisdiction


          The  Eighth Circuit  recently faced  BLE's argument

and  concluded  that  neither the  carrier  nor  UTU had  any

statutory  obligation  to  provide  BLE with  notice  or  the

opportunity to participate in negotiations, a conclusion with

which we substantially agree.  See Kansas City S., 26 F.3d at

792.  45 U.S.C.    156 exists to prevent either a  carrier or

union from  unilaterally changing the terms  of the operative

collective bargaining agreement.  Order of Railway Conductors


and  Brakemen v. Switchmen's Union  of N. Am.,  269 F.2d 726,

733 (5th Cir.), cert.  denied, 361 U.S. 899 (1959).   Section

156, therefore,  furthers the overall  purpose of the  RLA to

permit   employees   to    choose   their   own    bargaining

representative  freely, and  to ensure  a procedure  for "the

commencement  of conferences  between representatives  of the

two  parties  if changes  are to  be  made in  the contract."

McMullans, 229 F.2d  at 56.   Section 156  does not exist  to

open collective bargaining negotiations between a carrier and

a union to any other union claiming an interest.  

          BLE relies  chiefly on two cases,  neither of which

compel the conclusion  BLE seeks.  The  first, Brotherhood of

Locomotive Eng'rs v. National Mediation Board, 410 F.2d 1025,

1030 (D.C. Cir.), cert. denied, 396 U.S. 878 (1969), involved

a dispute between BLE and the firemen's union over apprentice

engineers,  a new  class of  railroad employees.    The court

determined that in the  absence of a certified representative

for  the  new  class,  any  union  that  could  fairly  claim

representation  over  the   apprentices  could   legitimately

bargain  with the carrier  about the terms  and conditions of

the apprentices'  employment.  Id.   By demonstrating  a fair

claim  of  representation, therefore,  a union  established a

right to notice and the  opportunity to participate under the

RLA.  Id.      This  case,  by contrast,  involves collective

bargaining between a represented class of employees and their


carrier.  BLE  does not  assert any  claim of  representation

over UTU members, nor could it.  Train service employees have

already  certified UTU  as  their bargaining  representative.

National Mediation Board,  therefore, does not  support BLE's

asserted interest in the  negotiations that produced  Article


          BLE  also  relies on  Illinois  Cent.  R.R. Co.  v.

Brotherhood  of Locomotive  Eng'rs, 443  F.2d 136,  138, (7th

Cir.  1971).   The  dispute in  Illinois  Central involved  a

tripartite  agreement  between  the  carrier,  BLE  and   UTU

governing the  list of  train service employees  eligible for

engineer work.  UTU  filed suit when BLE sought  to negotiate

revisions to  the rules governing the  list without providing

UTU notice  and an  opportunity to  participate.   The court,

noting the tripartite agreement,  determined that UTU and BLE

shared  joint  negotiating  interests  over  the   list,  and

therefore,  that BLE  could  not unilaterally  negotiate rule

revisions with the carrier.  Id. at 141.

          Obviously  no formal tripartite agreement exists in

this  case.   BLE, however,  points  to language  in Illinois

Central  indicating  that even  in  the  absence of  such  an

agreement, the  ebb and  flow  of employees  between the  two

crafts would give the firemen an "important economic stake in

the  rules regulating  the  extra list"  which in  turn would

establish a bargainable interest  in UTU over rules governing


the list.  Id. at 141-42.   BLE argues that the same ebb  and

flow  vests it with a bargainable interest in the negotiation

of train service seniority.  

          We disagree with  BLE's interpretation of  Illinois

Central.   First, that case revolved around a list outside of

either UTU's  or BLE's collective bargaining  agreements with

the  carrier.  The rules  governing the extra list, moreover,

placed direct  conditions on  a fireman's employment  -- they

dictated which of the  firemen could also engage in  engineer

work.   BLE's assumption of  sole negotiating  responsibility

over rules governing the  list placed BLE in the  position of

representing firemen  even though  the firemen had  certified

UTU as their collective bargaining agent.  

          In this  case, by  contrast, UTU  does not  seek to

unilaterally govern  the ebb and  flow itself.   UTU, through

Article  21,  has simply  negotiated  with  ST the  mechanism

through which  train service employees  accrue seniority,  as

part of  negotiations over  a  general collective  bargaining

agreement.   BLE and UTU have no tripartite agreement, nor is

UTU  attempting  to unilaterally  negotiate  a  set of  rules

governing movement between the two crafts.  

          As the Eighth Circuit concluded, 

          "[t]he  distinctive division  of railroad
          employees  under the  RLA into  crafts or
          classes,  and  the  regular  movement  of
          employees  among  the   crafts  that   is
          characteristic of  the industry, portends
          overlapping 'interests'  among bargaining


          units  in the  composition of  the crafts
          and in their labor agreements.  That sort
          of  interest,  however,  does not  confer
          upon all  unions the right to  notice and
          participation in the arbitrations  of all
          other unions."

Kansas City S., 26 F.3d at  791-92.  We conclude that the RLA

does not provide BLE  with a bargainable interest  in Article

21 such that ST and UTU owed BLE notice and an opportunity to

participate in the negotiations.  



Referenced Cases

  1. Brotherhood of Locomotive Firemen v. National Mediation Board
  2. Robert Cooper v. General Motors Corporation
  3. Order of Railway Conductors v. Switchmen's Union of North America
  4. Brotherhood of Locomotive v. The Kansas City Southern Railway Company Louisiana & Arkansas Railway Company United Transportation Union
  5. Illinois Central Railroad Company v. Brotherhood of Locomotive Engineers
  6. W. L. Birkholz v. Elmer L. Dirks, Etc.
  7. Dennis T. Dempsey v. Atchison
  8. National Labor Relations Board v. Manitowoc Engineering Co.
  9. Local 1251 International Union of United Automobile v. Robertshaw Controls Company
  10. John P. O'connell v. Erie Lackawanna Railroad Company
  11. Joe McMullans M. R. Edwards and E. W. Pate v. Kansas
  12. United Food & Commercial Workers International Union v. Gold Star Sausage Co.
  13. Teamsters Local v. Labor Board
  14. Switchmen's Union v. Board
  15. Trailmobile Co. v. Whirls
  16. Trainmen v. Jacksonville Terminal Co.
  17. Landers v. National Railroad Passenger Corporation
  18. Brotherhood of Railroad Trainment v. John P. O'connell, Etc.
  19. TWA, INC. v. Independent Federation of Flight Attendants
  20. Felter v. Southern Pacific Co.
  21. Aeronautical Industrial Dist. Lodge 727 v. Campbell
  22. Pennsylvania R. Co. v. Rychlik
  23. Wightman v. Springfield Terminal Ry. Co.
  24. Colleen A. Wiley v. American Greetings Corp.
  25. Den Norske Bank As v. First Nat'L of Bost
  26. Ortiz-Pinero v. Rivera-Arroyo
  27. Paul G. Landers v. National Railroad Passenger Corporation
  28. National Railroad Passenger Corporation v. International Association of MacHinists
  29. National Labor Relations Board v. Whiting Milk Corporation