United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
DOUGLAS T. WIGHTMAN, ET AL.,
SPRINGFIELD TERMINAL RAILWAY COMPANY
AND UNITED TRANSPORTATION UNION,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[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
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
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
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
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
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-
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
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
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
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.