United States District Court, E.D. New York
January 13, 2004.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Plaintiff, -against- LONG ISLAND RAIL ROAD, Defendant
The opinion of the court was delivered by: NICHOLAS G. GARAUFIS, District Judge
MEMORANDUM & ORDER
Now before the court is the motion of Plaintiff International
Brotherhood of Electrical Workers ("IBEW") for a preliminary and
permanent injunction barring defendant Long Island Rail Road ("LIRR") from
assigning certain IBEW members to work a shift from 4 P.M.-12. A.M. For
the reasons outlined below, IBEW's motions are DENIED and the complaint
is DISMISSED for lack of subject matter jurisdiction.
The basic facts as outlined herein are not disputed by the parties. On
October 16, 2003 John Collins, LIRR's Acting Principal Engineer, sent
IBEW General Chair Thomas Leibold a letter in which Collins announced
that as of November 18, 2003 twenty-four EBEW jobs in the Maintenance of
Way ("MW") Department would be abolished, jobs with shifts of 8 A.M.-4
P.M. from Monday through Friday. Leibold Declaration at 4-5. The letter
informed Leibold that as of November 19, 2003 twenty-four new jobs would
be established, but only fourteen of those would have the same shifts as
the abolished jobs; the other ten new jobs would have a shift of 4
P.M. to 12:00 A.M., Monday through Friday. Id. at 5. The LIRR wished to
use the late shift on a project involving an electrical substation at the
Flatbush Avenue Yard, which is occupied by trains during the day.
Affidavit of John Collins at 2. LIRR believes this particular project
will last approximately three months from its commencement. Id. at 2-3.
Soon after receiving the letter from Collins Leibold protested the new
shift, over the phone and in person, to LIRR's Director of Labor
Relations, S. M. Drayzen. Leibold Declaration at 5. Leibold argued that
the shift change would violate the collective bargaining agreement
("CBA") between the parties, LIRR could not make this move unilaterally,
and IBEW did not give LIRR permission to do so. Id. Drayzen said the
dispute was "minor," as it concerned the interpretation of the CBA, so it
must be arbitrated. He refused to rescind the shift change, and on
November 19 the LIRR made the change in shift times for the ten employees
in question. Id. at 6. IBEW's lawsuit for an injunction followed.
The parties agree that the relevant section of the CBA is found at
Rule 9A ("Starting Time and Meal Period-MW"):
(a) There may be one, two, or three shifts employed.
The starting time of the work periods for regularly
assigned service shall be arranged by agreement
between the Carrier and the General Chairman, based on
normal service requirements. When the normal starting
time does not meet actual service requirements as
regulated by the character of work and train service,
this starting time may be changed to not earlier than
5:30 A.M. or later than 8:30 A.M. upon sixteen (16)
hours notice to the employees affected.
(b) The time and length of the meal period shall
be subject to mutual agreement.
(c) Where three shifts are employed in continuous
service, the spread of each shift shall consist of
eight (8) consecutive hours including an allowance
of thirty (30) minutes for meal within limits of
the fifth hour.
(d) Lapped shifts shall not be established except
requirements of service cannot be met by other
equally economical arrangements.
Exh. B to Collins affidavit.
The parties do not dispute the content of the law in this area. IBEW
points to the Railway Labor Act ("RLA"), specifically
45 U.S.C. § 152(1), which effectively prohibits carriers (like LIRR)
from unilaterally changing work rules. In order to change work rules the
LIRR must serve a bargaining notice on the IBEW under Section 6 of the
RLA, thus beginning a rule-bound collective bargaining process. When a
carrier attempts to make such a unilateral change over the protests of
the union, the parties are engaged in what the Supreme Court first called
in Elgin. J. & E. Railway Co. v. Burley, 325 U.S. 711 (1945), a
"major dispute." A major dispute:
relates to disputes over the formation of collective
agreements or efforts to secure them. 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
Id. at 723. During a major dispute, if an employer attempts to violate
the "status quo" by imposing new work rules (among other things) district
courts have subject matter jurisdiction to enjoin such a violation, even
without the normally required showing of irreparable injury. See
Consolidated Rail Corp. v. Railway Labor Execs. Assoc., 491 U.S. 299
302-03 (1989) (hereinafter "Conrail").
LIRR does not question the validity of these laws and cases; rather, it
argues that the case at bar does not constitute a "major dispute," but
rather a "minor dispute." The definition of minor dispute is rooted in
45 U.S.C. § 152(6), which covers disputes arising "out of grievances
or but of the interpretation or application of agreements concerning
rates of pay, rules, or working conditions." Again in the words of
Burley, such a dispute:
contemplates the existence of a collective agreement
already concluded, or at any rate, a situation in
which no effort is made to bring about a formal change
in terms or to create a new one. The dispute relates
either to the meaning or proper application of a
particular provision with reference to a specific
situation or to an omitted case.
Burley, 325 U.S. at 723. District courts do not have subject matter
jurisdiction over minor disputes; these matters must instead be grieved
before an arbitration board. See Conrail, 491 U.S. at 303-04. The
threshold question of jurisdiction, therefore, turns on whether the
disagreement between the parties constitutes a major or minor dispute.
Both the Supreme Court and the Second Circuit have within the last
fifteen years clarified how district courts should examine whether a
dispute is major or minor. In Conrail, 491 U.S. at 307, the court
approvingly quoted the Third Circuit for the proposition that an employer
has a "relatively light burden" in establishing that a dispute is minor.
The court explained further:
Where an employer asserts a contractual right to take
the contested action, the ensuing dispute is minor if
the action is arguably justified by the terms of the
parties' collective bargaining agreement. Where, in
contrast, the employer's claims are frivolous or
obviously insubstantial, the dispute is major.
Id. The Second Circuit has affirmed that "in order to meet Conrail's
`arguably justified' test, `an employer need demonstrate only that a
reasonable trier of fact could adopt the employer's view of the
contract.' " Brotherhood of Locomotive Engineers Div. 269 v. Long Island
Rail Road, 85 F.3d 35, 38 (2d Cir. 1996), quoting Assoc. of Flight
Attendants v. United Airlines, Inc., 976 F.2d 102
, 105 (2d Cir. 1992). To
summarize, the relevant tests for the threshold question of
jurisdiction are whether LIRR's argument that this dispute is about
the interpretation of Rule 9A is "arguably justified" or adoptable by a
"reasonable trier of fact," or, on the other hand, whether LIRR's
argument is "frivolous or obviously insubstantial."
IBEW argues that LIRR's assigning these ten workers to a 4 P.M.-12 A.M.
shift violates the status quo, because MW Department workers have never,
for decades in the past, worked any shift but 8 A.M. to 4 P.M. IBEW
stresses that the language of Rule 9A is that "The starting time of the
work periods for regularly assigned service shall be arranged by
agreement between the Carrier and the General Chairman" and claims that
the General Chairman has never assented to any shifts beginning at 4 P.M.
In fact, asserts IBEW, LIRR has repeatedly attempted to change this rule
through the collective bargaining process, so as to be able to start
shifts at 4 P.M. Specifically, in 1995, 1998, and 2002 LIRR submitted a
"Rule 6 Notice" to IBEW that it wished to bargain over Rule 9A and change
its relevant terms to "The Carrier will have the right to establish or
change shift starting times and relief days without restriction." In both
the 1995 and 1998 bargaining rounds LIRR ultimately accepted the version
of Rule 9 A as it stands now, and the 2002 bargaining round is ongoing.
This bargaining history proves, argues IBEW, that LIRR is trying to
unilaterally change the status quo so as to achieve a change in working
conditions it has been unable to obtain at the bargaining table.
Similarly, says IBEW, when in the past LIRR has attempted to make a
unilateral move such as this one IBEW has protested, and LIRR has backed
away from the proposed change or has obtained IBEW's permission
course of conduct demonstrates that LIRR has traditionally agreed
with IBEW's interpretation of the agreement.
LIRR responds in a number of ways. First, LIRR points to the first
sentence of Rule 9A(a), which states that "There may be one, two or three
shifts employed." Since there is undisputedly an 8 A.M.-4 P.M. shift in
the MW Department, it follows that there is also a 4 P.M. to 12 A.M.
shift (and a 12 A.M.-8 A.M. shift as well). LIRR further claims that MW
electricians have worked a shift from 4 P.M. to 12 A.M. for decades,
without objection or special permission from IBEW, and LIRR has submitted
voluminous affidavits and exhibits in support of that claim. In those
situations no agreement from IBEW was required, and more generally no
agreement is necessary for LIRR to move MW workers from one established
shift, such as 8 A.M. to 4 P.M., to another, such as 4 P.M.-12 A.M.
Next, LIRR argues that the need to obtain agreement from the General
Chair for starting times of regularly assigned service applies only to
situations where the LIRR wishes to "create" an entirely new shift, such
as a "lapped shift" from 11 A.M. to 7 P.M., as referred to in Rule
9A(d). In fact, says LIRR, the freedom to create such "new" and "lapped"
shifts is what LIRR was trying to achieve when it sent the Section 6
bargaining notices to IBEW notices that apply to other unions and
other departments, like the ME Department, where there was definitely a 4
P.M. to 12 A.M. shift already in place. LIRR also points to: (1) the fact
that IBEW electricians in the ME Department work under near-identical
contract language and often work a 4 P.M.-12 A.M. shift without special
permission; and (2) the decision of an arbitration panel adjudicating a
similar complaint by Sheet Metal Workers who also work under similar
language, where the arbitrator agreed with the LIRR's position.
In its reply brief IBEW insists that the MW Department, the only group
of LIRR workers actually covered by Rule 9A and therefore the only group
relevant in this dispute, has never had a "regular" shift from 4 P.M.-12
A.M. Through declarations of past and present IBEW General Chairmen IBEW
explains that nearly all of the situations cited in LIRR's declarations
and exhibits relate to "two-man emergency crews," teams of electricians
who, continuously since IBEW gave permission in 1949, could be assigned
to shifts other 8 A.M.-4 P.M. These crews "rove the entire railroad,
handling electrical emergencies as they happen under the direction of the
Power Director." See, e.g., Bove Declaration at 3. All other MW employees
"hold positions on a maintenance gang and work under the supervision of a
gang foreman." Id. The remaining situations cited by LIRR are those
occasions when IBEW did give permission or, if not, LIRR rescinded the
attempted change after IBEW protested. Therefore, the past practice of
LIRR itself shows that LIRR has interpreted Rule 9A as IBEW submits it
should be interpreted.
LIRR responds in its own sur-reply affidavits that it is unaware of any
1949 agreement (and IBEW points to no written agreement from 1949 or
since then) that two-man crews are "emergency crews" somehow exempt from
rules that apply to other MW workers these workers perform
regularly assigned tasks. Further, LIRR disputes IBEW's characterizations
of the incidents described where LIRR supposedly changed course or
requested permission after IBEW changed a shift to 4 P.M.-12 A.M.
Specifically, LIRR points to the following situations: (1) in 1993 a
group of four MW electricians worked on a lighting project on the 4
P.M.-12 A.M. shift (though their hours were modified at the General
Chairman's request to 3:30 P.M.-11:30 P.M.); (2) in 1997 five MW
electricians worked on a project from 4 P.M.-12 A.M. without LIRR
requesting permission; (3) in 2001 LIRR changed a shift time after IBEW
only because the originally proposed shift was a "lap shift" from 9
P.M.-5 A.M., not because MW electricians may only work from 8 A.M.-4 P.M.
See Sur-reply Affidavit of Robert Puciloski at 3-4.
After considering the above arguments and examining the affidavits and
declarations submitted by the parties, I find that LIRR's arguments are
not "frivolous or obviously insubstantial," but rather that they are at
the very least "arguably justified" and could be accepted by a
"reasonable" trier of fact. I do not find that the record before me
conclusively supports the proposition that LIRR's changing the shift time
for these ten MW electricians constitutes a change in the status quo that
exists between the parties. LIRR's interpretation of Rule 9A is a
plausible one, first under the language of the rule itself, which states
"There may be one, two, or three shifts employed." If LIRR "may" employ
one, two, or three shifts, and the first shift runs from 8 A.M.-4 P.M.,
it is at the very least "not frivolous" for LIRR to argue that under Rule
9A LIRR "may" assign MW electricians to work a second shift immediately
after the 8 A.M.-4 P.M. shift ends. While the next sentence of Rule 9A
does require regularly assigned service starting times to be arranged
with the General Chairman, it is not "frivolous" to argue that this
sentence must be read in the context of the whole rule the rule
specifically allows for three shifts and discourages "lap shifts." Hence,
if an established shift runs from 8 A.M.-4 P.M., it may be assumed that
another "regular" shift runs immediately following, from 4 P.M.-12 A.M.;
a "reasonable" trier of fact could find that by agreeing to an 8 A.M.-4
P.M. shift the General Chair has impliedly agreed to a 4 P.M.-12 A.M.
(and a 12 A.M.-8 A.M.) shift as well.
Not only is the interpretation of the agreement debatable enough for
LIRR to meet its "light burden" of showing that jurisdiction lies with an
arbitrator rather than this court, so is the relevant history of the
shift in question. While this history is vigorously disputed, I find that
even if IBEW does have a good-faith reason for differentiating these
two-man crews from the kind of assignment that sparked this lawsuit, the
fact remains that MW electricians worked on this shift for decades,
without permission from the General Chairman and with no exceptional
status carved out for them in the CBA. Thus, LIRR once again has not
posed a "frivolous or insubstantial" argument that in assigning these ten
workers to the 4 P.M.-12 A.M. shift it is exercising its rights under
Rule 9A as it has in the past, rather than unilaterally changing the
status quo. In addition to the support provided by the existence of
two-man crews, I separately rely on the situations cited by Mr. Puciloski
in his sur-reply affidavit, where he details two occasions where MW
electricians (in groups of more than two) did work on the 4 P.M.-12 A.M.
shift. This account independently provides sufficient support to LIRR's
version of the history of these shifts, such that a "reasonable trier of
fact" could find for LIRR. Finally, there is arguably precedent for the
notion that the very fact that IBEW and LIRR dispute this issue means
that the dispute is minor. Cf. Air Line Pilots Assoc. v. Delta Airlines,
Inc., 1999 WL 684169, at *3 (E.D.N.Y. July 29, 1999) (Citing Conrail for
the proposition that "In any event, the dispute over whether the written
contract provision controls over ALPA's past understanding is a `minor
dispute' beyond the jurisdiction of this court").
Regarding another of IBEW's arguments, I find that LIRR's having issued
a Section 6 notice in 2002 (and in the 1990's) relating to this issue
does not therefore mean that LIRR is attempting to change the status quo.
LIRR's argument that its Section 6 notice was intended to
commence bargaining on the issue of "lap shifts," rather than on
the issue of whether there could be a regular 4 P.M.-12 A.M. shift at all
in the MW Department is, yet again, not "frivolous." Further, the fact
that LIRR sent the same Section 6 notices to other departments, like the
ME Department, that unquestionably have a regular 4 P.M.-12 A.M. shift,
tends to show that LIRR's proffered rationale for the Section 6 notice is
In finding that the instant dispute is a minor one over which I have no
jurisdiction, I make no judgment about which party's position ultimately
should prevail it is possible that IBEW's position has greater
merit. In light of LIRR's non-frivolous arguments, however, an arbitrator
is the proper entity to make a full determination on the merits, rather
than this court. Not only does controlling precedent dictate this
result, but so does logic. As the Second Circuit noted in Brotherhood of
Locomotive Engineers Div. 269, 85 F.3d at 39, Conrail directed courts to
"turn disputes such as the one presented here over to arbitrators who, as
experts in the common law of the particular industry, are in a better
position to interpret the provisions of the CBA than we are." (Internal
citations and quotations omitted).
For the reasons stated above, IBEW's motion for a preliminary
injunction is DENIED. As IBEW's counsel stated on the record at oral
argument that no further arguments or factual
submissions were necessary for it to make its motion for a permanent
injunction, IBEW's motion for a permanent injunction is also DENIED, and
its complaint is DISMISSED for lack of subject matter jurisdiction.