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July 26, 1997


The opinion of the court was delivered by: MCAVOY



 This case arises from the breakdown of negotiations between United Transportation Union ("UTU") and Delaware & Hudson Railway Company ("D&H") concerning a collective bargaining agreement. The second named defendant, National Mediation Board ("NMB"), is involved because it is attempting to force the parties to engage in statutorily required mediation. UTU seeks declaratory and injuntive relief pursuant to the Railway Labor Act, 45 U.S.C. § 151 et seq.

 Essentially, what is at issue is whether UTU properly terminated contract negotiations such that D&H was on notice that it had to request mediation by the NMB within the 10 days required by the Railway Labor Act ("RLA" or "the Act"). If D&H failed to request mediation within 10 days of termination of negotiations, then UTU argues that it is entitled to self-help: i.e., strike. If UTU did not terminate negotiations properly, then under the RLA it cannot strike and must either continue to negotiate or take part in mediation with the NMB. See 45 U.S.C. § 156.

 UTU, which represents some of D&H's railway workers, entered into a collective bargaining agreement with D&H in 1990 and again in 1992 under the terms of the Railway Labor Act. On November 6, 1994, UTU served notice to D&H that it wished to make changes to the agreement. Under the RLA, specific notice is required to invoke the RLA's change provisions. See 45 U.S.C. § 156 (also referred to as "Section 6 Notice"). On July 28, 1996, D&H served its Section 6 Notice as well.

 From December 8, 1994 through August 1, 1996, the parties formally conducted negotiation sessions, which the RLA calls "conferences." At the August 1, 1996 negotiation conference, UTU Vice-President Robert W. Earley claims that he "verbally terminated the negotiation conferences." (Early Supplemental Aff. P 7). Earley alleges that this was acknowledged by a D&H representative. (Id.). However, D&H asserts that "at the conclusion of the session, Mr. Earley told us that UTU was open to another proposal from D&H." (Brazier Aff. P 12).

 On August 15, 1996, UTU wrote D&H indicating that UTU believed conferences had been terminated on August 1, 1996, that ten days had run since that time, and thus UTU was entitled to self-help. (Brazier Aff., Ex. 1 ("August 15 Letter")). However, in that same letter UTU also requested further negotiations, albeit with the disclaimer that UTU still considered itself entitled to exercise self-help. D&H responded to UTU's August 15 Letter with a letter of its own that stated that UTU did not have the right to exercise self-help and asking for further negotiations. (Brazier Aff., Ex. 2). On September 4, 1996, UTU sent another letter to D&H stating that its August 15 Letter had terminated conferences and that UTU was entitled to self-help. (Brazier Aff., Ex. 3). However, UTU's September 4 letter again requested additional conferences.

 On September 20, 1996, the parties met to negotiate and on that same date D&H sent a letter to UTU stating that the union had breached its duty to bargain in good faith. The parties met for the last time on October 4, 1996. Also on October 4, 1996, D&H filed an application for mediation with the NMB. As a result, a mediator was assigned and attempts to mediate were begun by NMB. On October 8, 1996, UTU notified NMB that it would not engage in mediation and that it believed the NMB lacked jurisdiction.

 On November 6, 1996, UTU filed the instant Complaint seeking a declaration that D&H's request to the NMB had occurred more than 10 days after termination of conferences and requesting an injunction preventing the NMB from forcing UTU to mediate, thereby allowing UTU to exercise self-help. On November 27, 1996, UTU filed a Motion for Preliminary Injunction seeking to enjoin the NMB from forcing UTU to mediate. On January 14, 1997, this Court denied UTU's motion.

 Presently before the Court is plaintiff UTU's Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.


 Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, a court may grant summary judgment if it appears "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). It is the substantive law that will determine what facts are material to the outcome of a case. See Anderson, 477 U.S. at 250.

 Initially, the moving party has the burden of informing the court of the basis of its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party satisfies its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The Court must then resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). However, the non-moving party must do more than simply show "that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Only when the Court concludes that no rational finder of fact can find in favor of the non-moving party should summary judgment be granted. Gallo v. Prudential Residential. Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994).

 Here, both defendants oppose Plaintiff's motion and each has filed a separate memorandum of law in opposition. NMB opposes UTU's motion on the basis that: (1) Congressional intent reveals that the Railway Labor Act requires mutual and unequivocal termination of conferences, and (2) there is no evidence here of mutual termination of conferences. D&H opposes UTU's motion on the basis that: (1) there is no evidence here of unequivocal termination of conferences, and (2) UTU failed to bargain in good faith.

 The Court will address Defendants' arguments seriatim.

 A. Statutory Background

 The RLA establishes multiple levels of formal dispute resolution procedures and limits the parties' ability to alter the status quo by self-help throughout the resolution process. First, if a party intends to alter "agreements affecting rates of pay, rules or working conditions," the party must "give at least thirty days' written notice" of the proposed changes. 45 U.S.C. § 156 (called "Section 6 Notice"). The parties then meet in negotiating conferences to discuss these proposals. 45 U.S.C. § 152. If the parties in conference fail to agree, "either party . . . may invoke the services of the ...

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