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June 27, 1986

UNITED TRANSPORTATION UNION INTERNATIONAL, FRED A. HARDIN, Individually and in his capacity as President and Chairman of the Board of Directors of United Transportation Union International, L.R. DAVID, Individually and in his capacity as Vice President of United Transportation Union International, W.L. WOTASZAK, Individually and in his capacity as Vice President of United Transportation International, and the NATIONAL RAILROAD PASSENGER CORPORATION, Defendants

The opinion of the court was delivered by: BRIEANT



 By cross motions for summary judgment, this Court is asked to adjudge the validity of a collective bargaining agreement entered into between the National Railroad Passenger Corporation, known as Amtrak, and the United Transportation Union (UTU) that will regulate employment relations on Amtrak-operated lines outside of the Northeast Corridor, which extends from Washington, D.C. to Boston. UTU is the collective bargaining representative for the passenger conductors, assistant passenger conductors, passenger firemen and engine assistants strain and engine crews) on these lines.

 This action was instituted by three UTU members who allege that their Union, through the acts of its President and Vice President, usurped the exclusive, constitutional authority of the Union's General Committees of Adjustment by negotiating and contracting with Amtrak without the Committees' input or approval. Plaintiffs' first claim alleges a breach of the duty of fair representation arising under the Railway Labor Act, 45 U.S.C. § 151 et seq. ; the second, pendent claim attacks the formation of the agreement as violative of the Union constitution.

 Since 1970, when it was created by an act of Congress, Amtrak has gradually assumed the responsibility of providing passenger railway service from existing carriers that wished to discontinue that service. In order to effect the transition with minimum disruption, Amtrak relied on personnel furnished by contract from the freight railroads over whose tracks Amtrak operated. Until it became feasible to provide otherwise, these persons remained employees of the freight railroads, their terms and conditions of employment governed by the collective bargaining agreements negotiated between their unions and the freight lines.

 Nevertheless, by 1980 Amtrak had entered into a direct employment relation with all of its personnel, excluding only the train and engine crews, who continued to work for Amtrak on contractual loan from their employers. In 1981, Congress ordered Amtrak to complete the direct employment of personnel on the Northeast Corridor. See § 1165 of the Northeast Rail Service Act of 1981, 45 U.S.C. § 1113. By statute, Amtrak was required to negotiate with the employer, Conrail, as well as with the employees whom Amtrak was directed to hire. Id. In the course of negotiations, Amtrak voluntarily recognized the bargaining authority of UTU, which represented the Conrail personnel affected. Ultimately, a collective bargaining agreement with UTU was negotiated and implemented, and the Northeast Corridor was delivered to Amtrak's exclusive operation and control.

 Amtrak's takeover of the Northeast Corridor did not alter the employment relations between Amtrak and the train and engine crews on other routes in the Amtrak system, known as Off-Corridor operations. These crews continued to perform services for Amtrak while hired and paid by seventeen contracting freight carriers. Finally, in 1985, spurred by the impending loss or reduction of federal subsidy, and the statutory mandate to achieve direct operation and control of all aspects of its rail passenger service "insofar as practicable," 45 U.S.C. § 545(a), Amtrak undertook to employ its own train and engine crews Off-Corridor, beginning with the East and Midwest routes. Although it arguably had no statutory obligation to do so, Amtrak evinced its intention to hire as its own employees the personnel then performing Off-Corridor Amtrak service. Amtrak therefore contacted officials of the labor organizations that represented the affected train and engine crews -- including Larry J. Wotaszak, a vice president of UTU -- and suggested that the parties confer in hopes of producing a satisfactory agreement. On January 29, 1986, following nearly five months of negotiations during which UTU succeeded in obtaining certain staffing and income concessions from Amtrak, an agreement pertaining to the conductors, assistant conductors, firemen and engine attendants was signed by two UTU vice presidents and four officials of Amtrak. UTU President Fred A. Hardin approved the agreement several days later.

 As agreed, the first phase of the takeover was to be accomplished by April 1, 1985, with bids for Amtrak positions to be submitted no later than March 10, 1986. This application deadline was later extended to March 15, 1986 at the Union's request. By the close of the application period, Amtrak had received 1270 bids for 288 positions to be filled by UTU members. It has been represented to the Court that pursuant to the Union's collective bargaining agreements with the freight carriers, successful bidders for Amtrak positions would be entitled to a leave of absence from their present employment, enabling them to work for Amtrak for as long as six months without losing their seniority or other privileges should they choose to return to their former employers within that period.

 This matter originally came before the Court on March 3, 1986, on an order to show cause why the defendants should not be temporarily and permanently enjoined from implementing the agreement described above. The Court issued a temporary restraining order on March 11, 1986 limited to enjoining the defendants from treating as irrevocable any bid for Amtrak employment made pursuant to that agreement.

 The plaintiffs are Union members in good standing and, at the time of filing this complaint, performed services for Amtrak's Off-Corridor operations under Amtrak's arrangement with the contracting carriers. In addition, both Famulare and Michalakis serve as elected Local Chairmen of their respective locals, and Lenfest is the General Chairman of the General Committee of Adjustment on the Boston & Maine Railroad.

 In their individual capacities, the plaintiffs challenge the authority of the Union officials to enter into the Off-Corridor collective bargaining agreement with Amtrak. Citing Article 85 of the UTU Constitution, they contend that these officials usurped the decision-making powers expressly and exclusively conferred on the appropriate General Committees of Adjustment of each of the affected railraods, and that the agreement so conceived is void absent ratification by the Local or General Chairpersons. The Union's failure to respect this allocation of power amounts to a breach of its duty of fair representation, they assert, and also allege that Amtrak acted with knowledge, negotiating with the Union while aware of the UTU ratification requirement.

 The defendants contend in response that Amtrak and the Union entered into a voluntary bargaining relationship that was outside the jurisdiction of these local and general committees, a circumstance that permitted the Union President, under his general constitutional powers, to take appropriate action that he perceived to be in the best interest of the employees represented. Accordingly, the Union argues, the contract was not ultra vires and may be enforced. Amtrak subscribes to this reasoning and adds that even assuming that the conduct of the Union officials exceeded constitutional constraints, Amtrak acted reasonably in relying on the apparent authority of the Union's president and vice presidents to bargain and contract with Amtrak.

 The Railway Labor Act imposes on a labor organization the duty of fair representation. Steele v. Nashville Railroad Co., 323 U.S. 192, 65 S. Ct. 226, 89 L. Ed. 2d 173 (1944). Accordingly, as the exclusive bargaining representative of a designated employee unit, a union has a statutory obligation "to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967). A union is held to this duty of fair representation during all bargaining situations, including the negotiation, administration and enforcement of collective bargaining agreements. International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 47, 60 L. Ed. 2d 698, 99 S. Ct. 2121 (1979).

 Because a claim alleging a breach of this duty does not involve a dispute in the first instance between "an employee or group of employees and a carrier or group of carriers," 45 U.S.C. § 153 First (i), it does not fall within the jurisdiction of the National Railroad Adjustment Board. Therefore, it may be the basis of a suit in federal court. See Conley v. Gibson, 355 U.S. 41, 44-45, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Nor does the presence of Amtrak as a co-defendant vitiate that jurisdiction, where the plaintiffs allege that the employer participated in the allegedly improper conduct of the Union. See Glover v. St. Louis-San Francisco Railway Co., 393 U.S. 324, 329, 21 L. Ed. 2d 519, 89 S. Ct. 548 (1969). Plaintiffs state a cognizable federal claim against the Amtrak even though they charge Amtrak with no wrongdoing apart from having engaged UTU officials in contract negotiations with knowledge ...

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