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April 4, 2005.

BROTHERHOOD OF LOCOMOTIVE ENGINEERS & TRAINMEN, ROBERT M. EVERS, Individually and as General Chairman, GARY T. LOCKEL, Individually and as First Vice Chairman, MICHAEL J. QUINN, Individually and as Second Vice Chairman, ROBERT L. WILLIS, Individually and as Committeeman, JAMES R. BROWN, Individually and as Auxiliary Committeeman, DOUGLAS A. WILCOX, Individually and as President, Div. 269, SCOTT DECKER, Individually and as Vice President, Div. 279, JOHN S. BOVE, Individually and as Secretary/Treasurer, Div. 269, and JOHN DOES 1-440, Being the Members of the BROTHERHOOD OF LOCOMOTIVE ENGINEERS & TRAINMEN, Defendants.

The opinion of the court was delivered by: ALLYNE ROSS, District Judge


By order dated January 28, 2005, the court referred plaintiff's motion for a preliminary injunction and defendants' cross-motion for a preliminary injunction to the Honorable Robert M. Levy, United States Magistrate Judge. Magistrate Judge Levy rendered his report on March 7, 2005, concluding that the dispute between plaintiff and defendants is "minor" as defined by the Railway Labor Act ("RLA"), 45 U.S.C. § 151, et seq., and recommending that the court grant plaintiff's motion for a preliminary injunction and deny defendants' cross-motion for a preliminary injunction. Defendants filed an objection to Magistrate Judge Levy's report on March 18, 2005. Plaintiff filed a response to defendants' objection on March 31, 2005. Familiarity with the facts is presumed, and the court will proceed to address defendants' objections in this opinion.

  Defendants state two objections to Magistrate Judge Levy's report. First, they argue that the report inappropriately relies on Article 24(c) of the collective bargaining agreement ("CBA"), rather than Article 24(a), as the proper "scope of work" clause governing the nature of work performed by defendant Brotherhood of Locomotive Engineers & Trainmen, Division 269 ("BLET"). Defendants argue that Article 24 as a whole does not explicitly permit the Long Island Rail Road Company ("LIRR") to contract work — including the warranty work and movement of cars performed by Bombardier at the Arch Street shop — to non-union workers. Thus construing the dispute as one that does not involve interpretation of the existing CBA, defendants argue that the dispute in this case is "major" under the terms of the RLA, entitling them to strike if the railroad acts unilaterally and the non-binding mediation prescribed by the RLA is unsuccessful. Second, defendants urge the court to consider the "long-term ramifications" and "overall policy implications" of plaintiff's action, which defendants characterize as a step on the slippery slope toward using non-unionized outside contractors to perform all of the jobs currently performed by LIRR employees. Defendants urge the court to consider two cases, in particular, and to conclude that plaintiff's action is a unilateral attempt to alter the terms of the CBA.

  With respect to defendants' first objection, the court finds that defendants' argument puts the cart before the horse. Defendants argue that Judge Levy inappropriately relied on Article 24(c) of the CBA as the pertinent "scope of work" clause. That article reads, in part, "[a]ll engines and/or trains operated by The Long Island Rail Road over its right-of-way shall be manned by an engine service employee taken from the seniority roster of engine service employees." Plaintiff's Ex. A. Relying on the "relatively light burden" that railroads bear "in establishing exclusive arbitral jurisdiction under the RLA," Consolidated Rail Corp. v. Railway Labor Executives' Ass'n., 491 U.S. 299, 304 (1989) ("Conrail"), and the Supreme Court's guidance that disputes are to be deemed minor unless the employer's claim is "obviously insubstantial," id. at 307, Judge Levy determined that the dispute in this case is a minor one under the RLA. Judge Levy noted in his report the Second Circuit's interpretation of Conrail's test for determining whether an employer's action is "arguably justified" by the terms of the CBA. The Second Circuit has interpreted that test to mean that "an employer need demonstrate only that a reasonable trier of fact could adopt the employer's view of the contract" for the court to determine that the dispute is minor. Association of Flight Attendants v. United Airlines, 976 F.2d 102, 105 (2d Cir. 1992) (emphasis added). Judge Levy concluded that LIRR had carried its light burden because its argument that the CBA sanctions the disputed action, LIRR's agreement with Bombardier providing that Bombardier employees are responsible for moving cars adjacent to and within the leased Arch Street shop where warranty work is performed, is not "obviously insubstantial." Judge Levy reached this conclusion having considered several arbitral decisions involving LIRR and BLET in which arbitrators had repeatedly construed the "right-of-way" language of Article 24(c) as not applying to work performed in such shop areas.

  In their objection to Judge Levy's report, defendants minimize the significance of the "right-of-way" language in Article 24(c) and emphasize Article 24(a). The court is not clear what this emphasis achieves. While the court understands defendants' desire to frame the issue as concerning LIRR's right, or lack thereof, under the CBA to "contract out" work, the logically prior question is whether the work performed by Bombardier at the Arch Street shop is within BLET's jurisdiction such that it is sensible to refer to that work as having been "contracted out." Judge Levy's report addresses precisely that question, determining that the central inquiry is whether the movement of cars in and adjacent to the Arch Street shop in fact involves moving cars on the "right-of-way." The court agrees. While the court recognizes that the instant case differs from the arbitral decisions cited by plaintiff in that the work has been allocated to a contractor rather than another union within the LIRR, the court cannot conclude that this distinction transforms the dispute into a major one. Rather, the court concurs with Judge Levy's assessment that this dispute turns on the interpretation of the CBA and, specifically, Article 24(c)'s "right-of-way" language. Moreover, the court finds that LIRR's contention that this language in the CBA sanctions the disputed action is not "obviously insubstantial." The court acknowledges that the line dividing minor disputes from major ones is often blurry and emphasizes that this decision in no way constitutes an opinion of the merits. BLET may ultimately prevail in arbitration. In reaching its conclusion, the court does no more than "abide by the directive of Conrail 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 the court. Brotherhood of Locomotive Engineers Division 269 v. Long Island Rail Road Co., 85 F.3d 35, 39 (2d Cir. 1996) (internal quotation marks and citations omitted). Defendants' second objection relies on two cases, Burlington Northern Railroad Co. v. United Transportation Union, 862 F.2d 1266 (7th Cir. 1988), and Brotherhood of Locomotive Engineers v. Springfield Terminal Railway Co., No. 98 Civ. 284, 1999 U.S. Dist. LEXIS 21717 (D.Me. Feb. 5, 1999). Defendants suggest that, if the court construes the dispute in the instant case as a minor one, little would stop LIRR from leasing all of its tracks so that less expensive outside contractors could perform the work currently performed by LIRR employees. Defendants cite Burlington Northern and Springfield Terminal for the proposition that courts may "look beyond the surface" of a transaction to determine whether it is in actuality an attempt on the employer's part to evade the CBA. Defendants argue that plaintiff's action, permitting Bombardier to move cars on tracks adjacent to and within the leased Arch Street shop, is just such an attempt. Specifically, they argue that LIRR, displeased with the length of negotiations with BLET and anxious to open its Arch Street shop, "moved to contract out BLET's work." Defendants' Objection at 10. Invoking the above-cited cases, defendants argue that the timing and circumstances of LIRR's actions at the Arch Street shop suggest that the LIRR intended to avoid its obligation to collectively bargain for the right to "contract out" work. In defendants' view, Judge Levy's report inadequately considered Burlington Northern and failed to address substantively Springfield Terminal. While the court finds that Judge Levy's report amply considered the principle established in those cases, it will nonetheless undertake its own analysis.

  In Burlington Northern, after the railroad successfully negotiated with local union committees to establish new, smaller crews to operate trains over a number of its lines, the local committees on one of its lines refused to accept the railroad's proposal. 862 F.2d at 1269. This constituted a clear negotiation failure. Undaunted, the railroad devised an expansive agreement with a corporate subsidiary to avoid further union negotiation, granting trackage rights to approximately 1800 miles of track. With the railroad's written permission, the subsidiary could obtain an essentially unfettered right to use the track, including performing work that had hitherto been performed by the union. Id. The Seventh Circuit concluded that the ensuing dispute between the railroad and the union was major, in that the railroad had attempted to alter unilaterally the number of crew members required to operate trains over the line in question. Id. at 1274. While Burlington Northern could be distinguished from the instant case on a number of grounds, Judge Levy identified the most salient distinction. While the trackage rights agreement in that case was ostensibly limited to certain functions, it was drafted in such a way that the grantee could, with the grantor's written permission, perform all the functions the union typically performed. Id. at 1269. Significantly, unlike in the instant case, no ambiguity existed as to the scope of the work performed by the union or whether the railroad's action had impinged upon the union's jurisdiction. In that case, there was a clear attempt on the railroad's part to evade contractual duties. Notwithstanding defendants' contention that Judge Levy's report distinguished Burlington Northern "on non-dispositive factual points," the court adopts the report's analysis of that case. The court also notes that the following analysis of Springfield Terminal applies with equal force to Burlington Northern.

  In Springfield Terminal, on which defendants place great emphasis, the court relied on Burlington Northern to conclude that the dispute in question was major. 1999 U.S. Dist. LEXIS 21717 at *13. In that case, after failing to negotiate an agreement with the unions to create new positions responsible for switching cars on the premises of the railroad's customers, the railroad trained one of its customer's employees to switch cars on its own grounds. Shortly thereafter, the railroad encouraged those nonunion employees of its customer to switch cars for several of the railroad's other customers. The railroad had previously performed that work itself with union employees. Defendants place heavy emphasis on the following language from the case, which restated the rule established in Burlington Northern:
Burlington stands for the proposition that a court can look beyond the surface of purportedly similar transactions to see whether the disputed practice before it is in reality an attempt to evade the collective bargaining agreement; where the disputed transaction allows a corporate relative not bound by the collective bargaining agreement to perform work covered by the collective bargaining agreement, and that transaction follows closely on the railroad's failed attempt to negotiate new terms for the work in question, such facts — though not conclusive — bear directly on the plausibility of the railroad's claim that the collective bargaining agreement arguably permits the transaction in question.
Id. at *12. In referring to "purportedly similar transactions," the court was addressing whether past practices arguably justified the employer's action where the CBA included no explicit, governing term. The court heeded the Seventh Circuit's admonition in Burlington Northern that courts need not accept at face value an employer's assertion in such cases that an action apparently taking the form of one approved by a union in the past is, as a result, justified. Rather, the court looked "beyond the surface" of the railroad's actions and determined that they were not congruent with, and thus not justified by, past practice.

  The court finds defendants' reliance on Springfield Terminal to be inapposite. First, the cited passage concerns disputes where the sole issue is whether past practice, in the absence of relevant or even ambiguous terms in the CBA, justifies the employer's action. In such cases, courts should scrutinize purportedly similar transactions to determine whether, in fact, past practice justifies the employer's present action. Stated differently, courts must scrutinize the employer's action to determine whether it is actually the sort of action that the union has approved in the past. The case has little to say about cases like the instant one, where the employer's proffered interpretation of a CBA term is not "obviously insubstantial" and the inquiry is not solely whether past practice justifies the action.

  Even accepting defendants' invitation to scrutinize the past practice between LIRR and BLET, the court cannot conclude that the LIRR's action is a unilateral attempt to evade the CBA. Defendants have not identified a failed negotiation to which the LIRR's decision to lease the Arch Street shop to Bombardier for warranty work, including the movement of cars on tracks within and adjacent to the shop, was a reaction. Defendants emphasize that LIRR served a Section 6 Notice upon BLET in November 2002 and that the CBA between LIRR and BLET expired in December 2002. Defendants have not established, however, that plaintiff's action, taken approximately two years later, followed closely on an attempt to negotiate new terms for the work in question or that plaintiff's actions otherwise violate past practice. To the contrary, the arbitral awards submitted by plaintiff support plaintiff's position that the "right-of-way" language of Article 24(c), construed in light of past practice, does not entitle BLET to the work in question. At the very least, LIRR's contention is not "obviously insubstantial." In reaching the conclusion that neither Burlington Northern nor Springfield Terminal compels a conclusion that the dispute in question is major, the court reiterates that it expresses no view on the merits, finding only that the dispute is minor and, as a result, subject to binding arbitration under the RLA. As the court fully concurs with Magistrate Judge Levy's conclusion that the dispute in question is a minor one, it adopts the Report and Recommendation as the opinion of the court pursuant to 28 U.S.C. § 636(b)(1). Accordingly, plaintiff's motion for a preliminary injunction is granted and defendants' cross-motion for a preliminary injunction is denied.



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