USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 96-1378

DOUGLAS T. WIGHTMAN, ET AL.,

Plaintiffs, Appellants,

v.

SPRINGFIELD TERMINAL RAILWAY COMPANY

AND UNITED TRANSPORTATION UNION,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________

Harold A. Ross with

______________

whom Ross & Kraushaar Co., L.P.A., Shelley

____________________________ _______

Kroll, and Segal, Roitman & Coleman were on brief for appellants.
_____
________________________
John R. Nadolny
_______________
Norton N.

for appellee Springfield Terminal Railway Co.

Newborn with whom Norton

N. Newborn Co., L.P.A.,

James

__________________

______________________________

Freeley, Jr. and Freeley & Freeley were on brief for

____________
__________________
Transportation Union.

____________________

November 19, 1996

____________________

_____

appellee Uni

STAHL, Circuit Judge.

STAHL, Circuit Judge.
_____________

Locomotive

Appellants, Brotherhood

Engineers and several

("BLE") sought to

of its

enjoin enactment

individual members

of a clause

negotiated collective bargaining agreement

United Transportation Union ("UTU") and

Railway Co. ("ST"), as

("RLA"), 45 U.S.C.

injunction

newly

Springfield Terminal

Labor Act

The district court denied the

and granted summary

BLE's complaint.

in a

between Appellees

a violation of the Railway

151-188.

of

judgment for

UTU and

ST on

Wightman v. Springfield Terminal Ry. Co.,

________
_____________________________

915 F. Supp. 503, 507 (D. Mass. 1996).

BLE now appeals.

Background
Background
__________

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

of

several

purposes of the RLA.

trade

unions

agreements with ST.

The

belong to BLE.

who

have

BLE

and UTU are two

collective

bargaining

individual plaintiffs in this

case

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

recognized

must belong to

railroad

Eleventh(a)

unions.

and (c).1

ST and

one of the

See
___

the

45

national, RLA

U.S.C.

unions with

152,

which

it

____________________

1.

45 U.S.C.

through Eleventh.

152 has

been drafted

in subsections

First

Section 152, Eleventh contains subsections

a through d.

We note the unusual numbering scheme to explain

-22

maintains collective bargaining agreements have established a

union shop.

Employment in the railroad industry revolves around

crafts or classes of work, each of which is represented

different

union.

Train

service

and

engineer

by a

service

constitute

two

such

conductors, brakemen,

crafts.

The

trainmen and

former

yardmen, and

includes primarily locomotive engineers.

train service

encompasses

craft and BLE represents

the latter

UTU represents the

the engineer service

craft.

By

practice,

junior

engineers

ranks of the train service employees.

given

year,

fluctuate.

however,

the

amount

advance

from the

Over the course of any

of

During periods of reduced

engineer

work

may

engineer work, junior

engineers may have to return temporarily to train

service in

order to remain employed.2

Junior engineers, therefore, have

an

maintaining

economic

interest

in

their

train service

seniority.

Prior

to

1995, the

UTU-ST

collective bargaining

agreement

accrue

allowed non-UTU

train

negotiated a

service

member engineers

seniority.

provision known

In

1995,

as Article 21,

to continue

to

however,

UTU

which requires

____________________

our citation.

2.
flow

In its reply brief, BLE appears to hint that the

ebb and

of train service employees to and from engineer service

occurs with less regularity today than in prior eras.

-33

that employees moving from

pay dues to UTU in

train service to engineer service

order to maintain and continue

their train service seniority.

21,

ST offered

apparently

it a similar

believing

it

to

to accrue

When BLE objected to Article

provision which

be

of

little

BLE rejected,

value

to

its

membership.

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.

followed.

Standard of Review

This appeal

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

issue

judgment is appropriate in the

absence of a genuine

of material fact, when the moving party is entitled to

judgment as

Neither

a matter of

party

may

rely

unsubstantiated

denials,

deriving

the

from

interrogatories,

either the

law.

on

See Fed. R.
___

Civ. P.

conclusory

allegations

but must

pleadings,

admissions

and

existence or absence

56(c).

or

identify

specific facts

depositions,

answers

affidavits to

demonstrate

of an

issue of fact.

to

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

-44

judgment per se. See

___ __ ___

F.2d

us

Wiley v. American Greetings Corp., 762

_____
_________________________

139, 141 (1st Cir. 1985).

to

determine

whether

Cross motions simply require

either of

the

parties

deserves

judgment as

Id.
___

a matter of law on

As always,

we resolve

facts that are not disputed.

all

factual disputes

and any

competing, rational inferences in the light most favorable to

the party

against whom

Norske Bank v.
___________

summary judgment

has entered.

First Nat'l Bank of Boston,

___________________________

Den
___

75 F.3d 49,

53

(1st Cir. 1996).

Discussion
Discussion
__________

BLE raises

three basic

arguments,

involves a different statutory provision

each of

of the RLA.

which

First,

BLE contends, Article 21 violates the prohibition of mandated

dual unionism

BLE

urges,

under 45 U.S.C.

Article

21

152, Eleventh(c).

impermissibly

interferes

Second,

with

employees' rights to organize and choose their own collective

bargaining representative

Fourth.

Finally,

required

UTU

notice of

under 45 U.S.C.

BLE asserts,

156,

interested party,

their contract negotiations and

an opportunity to

them.

to provide

45 U.S.C.

BLE, an

participate in

and ST

the RLA,

152, Third and

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)
________________________________

-55

According to

BLE, Article 21 violates

152,

Eleventh(c), part of

RLA.

Analysis of BLE's argument requires a brief detour into

the background

how

of the

the union shop

45 U.S.C.

provisions of the

union shop provisions

generally, and

152, Eleventh(c) fits into the union shop scheme.

Under 45

unions may

specifically

U.S.C.

152, Eleventh(a),

establish union shops.

provides

that carriers

carriers and

Section 152, Eleventh(a)

and

unions

may "make

agreements, requiring as a condition of continued employment,

that

. . . all

organization

employees shall become

representing their

isolation, the

members of the labor

craft or

plain language of this

class."

Read in

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

shop

option

riders,"

but

in

order

to eradicate

Congress for the

the

problem

union

of "free

railroad employees who do not pay dues to any union

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

in

industry could pose a

union shop.

shuttling

Under

between train

problem for employees

152, Eleventh(a),

service and engineer

an employee

service could

-66

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

pointed out,

as

an engineer.

As the

Supreme

"[t]he former alternative would,

Court

of course, be

expensive and sometimes impossible, while the latter would be

complicated and

benefits."

might mean the

Id. at 490.
___

loss of seniority

Congress

attempted

and union

to

union shops to accommodate intercraft mobility through

Eleventh(c).

tailor

152,

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."

152, Eleventh(c).

to contradict

On its face,

152

45 U.S.C.

Eleventh(c) appears

152, Eleventh(a) by allowing any

employee in

any

union

shop

to belong

to

any

of

the RLA

recognized

railroad unions.

The

purpose

of

152,

Eleventh(c),

significantly circumscribes its language.

U.S.

at 488, 492; see

___

Corp.,
_____

814

F.2d

41,

limited applicability of

652 (1988).

Section

also Landers v.
____ _______

44-45 (1st

Cir.

however,

See Rychlik,
___ _______

352

Nat'l R.R. Passenger

____________________

1987)

(recognizing

152, Eleventh(c)), aff'd, 485 U.S.

_____

Despite its broad language, "the only purpose of

2, Eleventh(c)

compulsory dual

was

unionism or

a very

narrow one:

the necessity of

-77

to prevent

changing from

one

union to

crafts."

652, 657-58

another when

Landers v.
_______

an employee

Nat'l R.R. Passenger Corp., 485

___________________________

(1988); Rychlik, 352

_______

Eleventh(c) does

them to recruit

temporarily changes

not exist

U.S. at 492.

to benefit unions

members from the ranks

U.S.

Section 152,

by permitting

of other established

unions, or to provide railroad employees with a general right

to

join

unions

representative

other

than

of their

craft,

the

designated

except to

bargaining

meet the

problem of intercraft mobility in a union shop.

narrow

Rychlik, 352
_______

U.S. at 493.

Bearing

in mind the

Eleventh(c), we turn to

essentially attacks

of

152

BLE's challenge to Article 21.

BLE

Article 21 from two angles.

contends, Article 21 constitutes

union

context and purpose

either a

shop agreement that violates

amendment to

the existing

152, Eleventh(c).

"the cost

First, BLE

152, Eleventh(a)

152, Eleventh(c) or an

ST-UTU agreement that

Second, BLE argues, Article

violates

21 will upset

sharing scheme which was continued and fostered by

the 1951 union shop amendments."

On its

face, Article

We disagree.

21 can neither

constitute a

union shop agreement by

UTU

agreement that

language

of Article

itself, nor an amendment to

violates

Eleventh(c).

21 requires

Locomotive Eng'rs v.
_________________

Nothing in

membership in

other union as a condition of employment.

UTU or

the

any

See Brotherhood of
___ ______________

Kansas City S. Ry., 26

___________________

-88

the ST-

F.3d 787,

793

(8th

Cir.)

152,

Eleventh(a) union

Eleventh(c) applies

only

shop agreement), cert. denied,

_____ ______

to a

152,

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

_____ ______

82 (1994).

between

simply

Article 21 does not require an engineer to choose

dual union

membership or

requires an engineer to

continue

S. Ct.

to accrue

seniority

unemployment; Article

21

choose whether to retain and

in the

train service

craft.

Wightman, 915 F. Supp. at 506.

________

In

Co.,
___

Dempsey v.
_______

16 F.3d 832, 838

Atchison, Topeka and Santa Fe Ry.

___________________________________

(7th Cir. 1994),

the Seventh Circuit

faced

a BLE

challenge

to a

desirous of accumulating

to

pay dues

to UTU.

provision requiring

engineers

additional train service

seniority

Failure

affect accrued seniority.

constituted

union

shop

to pay,

however, would

not

In examining whether the provision

agreement,

the Seventh

Circuit

relied in part on the fact that it did not require payment of

dues to

that

UTU in order

such

provision.

Co.,
___

to retain accrued

provision

constitute

union

shop

Id. at 838 (citing NLRB v. Manitowoc Engineering

___
____
_____________________

909 F.2d

963, 969-71

Clipper City Lodge No. 516

___________________________

Ultimately, the

did not

might

seniority, implying

(7th Cir.

1990), cert.
_____

denied,
______

v. NLRB, 498
____

U.S. 1083 (1991)).

court concluded that the

provision at issue

create any

conditions of continued

employment, and

-99

therefore, did not constitute a

agreement.

152, Eleventh(a) union shop

Id.
___

In our view,

the extra step Article

21 takes with

respect to

accrued seniority does not

on employment

indicated,

employees

Despite

different from the

nothing

to

belong to

the fact

conditioning

on

the

provision in Dempsey.
_______

face

UTU

of

Article

in order

that Article

seniority retention

to

21 takes

and

dues payment, an engineer who chooses

either of the UTU-ST

create any conditions

21

requires

remain employed.

the extra

accrual on

step of

continued

BLE over UTU satisfies

or BLE-ST union shop requirements.

the extent, therefore, that

As

To

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,

seniority.

since

they

will

According to BLE, this

engineers at the

lower end

of the

have

no

train

service

effectively forces those

engineer seniority

list

either to belong to UTU and BLE, or to UTU instead of BLE, as

condition of continued employment at ST.

BLE asserts that

152, Eleventh(c) allows a railroad employee in a union shop

to

change

"without

membership to

putting

any

himself

membership requirement

of a

other

out

of

RLA recognized

compliance

valid union shop

-1010

with

union,

the

agreement and

thereby

cause a

BLE's argument

loss of

requires

seniority and

us to

employment rights."

determine

whether

152,

Eleventh(c), in protecting

against compulsory dual unionism,

elevates

seniority

into

statutorily

protected

right

employees may take with them as they move from craft to craft

and union to union.

By

between

its own

carriers,

Eleventh(c)

dictates

language,

unions

and

the

limits

the

RLA governs

employees,

of

relations

and

what carriers

152,

and/or

unions can demand of employees in a union shop.

parameters,

which include

a prohibition on

unionism, the RLA makes no

Within those

compulsory dual

mention of seniority, and notably

fails to designate seniority as a protected employment right.

In the absence

of a

the contrary, union contracts

legislative pronouncement

typically define the scope and

significance of seniority rights.

Lodge v.
_____

v.

to

Aeronautical Indus. Dist.

__________________________

Campbell, 337 U.S. 521, 526 (1949); Trailmobile Co.

________
_______________

Whirls,
______

therefore,

331

U.S.

does

not

40,

53

stem

n.21

from

(1947).

the

Seniority,

employer-employee

relationship and by extension become an employment right, but

rather

from

either

a statute

or

the

four

corners of

collective bargaining agreement, in this case between a union

and

a carrier.

Corp., 342 F.2d

_____

National Labor Relations Bd. v. Whiting Milk

____________________________
____________

8, 10-11 (1st Cir. 1965).

It is by now well

-1111

established

that

in

the

absence of

contract

creating

seniority rights, they do not exist.

839;

See Dempsey, 16 F.3d at

___ _______

United Food & Commercial Workers Union

________________________________________

v. Gold Star
__________

Sausage Co., 897 F.2d 1022, 1026 (10th Cir. 1990); Cooper v.
____________
______

General Motors Corp.,

_____________________

(citing

cases);

651

F.2d 249,

250

(5th Cir.

1981)

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,

exclusively

vest

like

any

other

from collective bargaining

in employees.

benefit

deriving

agreements, does not

Robertshaw, 405 F.2d at 33; McMullans v.

__________
_________

Kansas, Okla. & Gulf Ry.,

________________________

229 F.2d 50, 53 (10th

Cir. 1956).

Instead,

seniority rights

abrogation

with

are subject

to revision

the

termination

or renegotiation

collective bargaining

agreement.3

Dempsey, 16
_______

Robertshaw, 405 F.2d at

__________

rights employees

directly

to

have

the terms

carrier and the

or even

of

F.3d at 839;

33; McMullans, 229 F.2d at 54.

_________

in

seniority,

of the

the

therefore,

Any

are

tied

labor agreement

between the

union representing their craft.

Nothing in

____________________

3.

The Dempsey opinion ultimately

_______

despite

that court's

implication that

Article 21 might constitute

F.3d at 838-39.
the collective

views seniority as we do,

a provision

such as

a union shop agreement.

See 16
___

Dempsey concludes
_______

that seniority, born

bargaining agreement, is subject

of

to revision

or abrogation.

16 F.3d at 839.

We do not interpret Dempsey,

_______

therefore, as supporting BLE's argument.

-1212

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

the

kind

exists

of compulsory

to prevent.

advantage over another union with

dual

See
___

unionism

152,

Whiting Milk,
_____________

342

Eleventh(c)

F.2d

at

11

("Obtaining a benefit for employees may well encourage others

to join

a union but

that side effect

[NLRB], for 'The truth is that

does not violate

the

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,

Eleventh(c)

675-76

does not

(1961)).

provide

We

conclude that

the statutory

basis to

152,

vest

railroad employees with their accrued seniority.

Finally, BLE

asserts that Article

21 "upsets

the

sharing

of

costs of

representation

amendments" in violation of

promoted

by the

1951

152, Eleventh(c).

____________________

4.

BLE relies on

three cases in

that Article 21 constitutes

support of its

contention

an illegal union shop agreement:

Felter v. Southern Pac. Co., 359 U.S. 326 (1959), Birkholz v.

___________________________
___________
Dirks, 391 F.2d
_____
U.S. 210
F.2d

Cir. 1968), vacated as moot,

________________

395

(1969) and O'Connell v. Erie Lackawanna R.R., 391

___________________________________

156 (2d

(1969).

289 (7th

Cir.

1968), vacated as moot, 395

_________________

BLE asserted

Seventh Circuit

these

in support

See Dempsey, 16 F.3d at

___ _______

cases

U.S.

210

unsuccessfully to

the

of a nearly

838 n.6.

identical argument.

We concur in

conclusion that these cases are inapposite.

-1313

that court's

Section

union shop

152, Eleventh(c)

to membership

electors

of

Railroad

Adjustment

settle

disputes

agreements.

Circuit

the

See
___

pointed

participation

to

union

limits

in those unions

representatives

Board ("NRAB").

arising

under

those

unions

on

the

487.

which share

the

as

to

bargaining

As the

limits

National

NRAB exists

collective

this requirement

in

which qualify

The

Rychlik, 352 U.S. at

_______

out,

employees

Seventh

union

costs

shop

of

administering

respects

in

the NRAB,

the

negotiating

bargaining agreements

RLA."

and which

under the

Dempsey, 16 F.3d at
_______

Article 21

and

840.

"join together

policing

dispute

of

in other

collective

mechanisms of

BLE appears

the

to argue that

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

its obligations to NRAB.

Stated more broadly, the

not protect any one union from competition

to offset

RLA does

with another over

membership and dues.

B. 45 U.S.C.
152, Third and Fourth
______________________________________

Section

152,

Third,

representatives," provides

entitled

"Designation

that neither unions

of

nor carriers

"shall in any

other

in

Fourth,

bargaining

its

way interfere with,

choice

dealing

with

influence, or coerce

of representatives."

organization

process, grants

and

Section

the

employees the right

the

152,

collective

to organize

-1414

and bargain collectively through representatives of their own

choosing,

coerce

and

provides that

employees

organization,

nor

no

regarding

deduct

carrier

their

dues

organizations from employee wages.

or

may influence

choice

other

of

fees

Fourth.

labor

of

such

BLE contends that Article

21 violates the employee freedom of choice embodied

and Fourth, and

or

also the prohibition

in Third

on wage deductions

in

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

certification contexts,

Fourth

operate primarily

where unorganized employees

designate representatives and commence

with employers.

in

pre-

seek to

collective bargaining

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

to further their own

v.

on neither party's access

partisan ends.

Id. (quoting
___

National Mediation Bd., 320 U.S. 297,

______________________

certified representatives

record in place.

we

must

limit

In

our

and a

Switchmen
_________

300 (1943)).

post-certification context, by contrast, the

have

to the courts

In a

parties already

collective bargaining

post-certification disputes, therefore,

intervention

to

cases

in

which

the

aggrieved union has no other remedy "to enforce the statutory

commands which Congress had written into the [RLA]."

-15-

Id.
___

15

We

certification

have

concluded that

dispute under

occur in extremely limited

Passenger Corp.
________________

intervention

152,

Third and

circumstances.

in

a post-

Fourth will

See National R.R.

___ _____________

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,

intervene when

cannot

or coercion.

a carrier

be remedied

fundamental attack

by

Id.
___

In

commits acts of

on the

material

purports

fact

demonstrate

by

anti-BLE

or commits

collective bargaining process

to

listing

animus

establish

15

We agree with

"facts"

sufficient

certification judicial intervention.

of them here.

will

intimidation that

administrative means,

makes a direct attempt to destroy a union.

BLE

addition, we

or

Id.
___

genuine

which

to

issue

it

justify

of

claims

post-

We need not recite all

the district court that

BLE's

facts, even if all true, at best demonstrate sharp bargaining

practices

between unions

advantage.

in an

effort to

Wightman, 915 F. Supp. at 507.

________

gain competitive

While BLE's facts

evince competitive jockeying between it and UTU, they notably

fail to

demonstrate anti-BLE animus or

-1616

a fundamental attack

on the bargaining process by ST.5

Court

correctly

declined

to

Accordingly, the District

intervene

in

this

post-

certification matter.

BLE also contends that

Third and Fourth as a matter

under

the National

seeks to apply

Article 21 violates

of law.6

Labor Relations

152,

BLE offers

precedent

Act ("NLRA"),

which it

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

________

to

employ

NLRA

unequivocal

circuit

RLA

and

precedent

precedent

others,

certification

(1969)).

We especially hesitate

in

light

from

the

which

of

Supreme

underscores the

application of

152,

441 (limiting application of

and

pre-certification

to

clear

Court,

limited

contexts);

and

this

post-

Third and Fourth.

TWA, 489 U.S. at

___

Fourth

the

See
___

152, Third

Nat'l R.R.
___________

____________________

5.

To

be

sure, it

candid with BLE

substance of the
not

does not

appear

that ST

was entirely

regarding its negotiations with UTU

ST-UTU agreement.

and the

The RLA, however,

does

compel ST to inform BLE of the substance of negotiations

with a third union, and we do not identify anti-BLE animus in

ST's actions.

6.

BLE essentially

argues that

by making it

so attractive

for

engineers

to join

impermissibly interfering
and

UTU, Article
with their

21

has the

effect of

free choice

of union,

coercing them to join UTU, in violation of

152, Third

and Fourth.

-1717

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

under

it comprises

152, Eleventh.

by itself

mandate

does

them.

however,

not

part of a

union shop

agreement

At the outset we note that Article 21

refer

Assuming

we disagree

to wage

such

with BLE's

deductions,

wage

much

less

deduction

exists,

interpretation of

152,

Fourth and Eleventh(b).

As indicated,

may

not

deduct union

152, Fourth provides that

dues

or

fees

carriers

from employee

wages.

Section 152, Eleventh(b), however, provides that carriers and

labor

organizations may

deduction

of

"any

make agreements

periodic

dues,

providing for

initiation

assessments" from employee wages as long as the

given

the

carrier written

permission.

45

fees,

the

and

employee has

U.S.C.

152,

Eleventh(b).

does

Section 152,

not limit

Eleventh(b), unlike Eleventh(c),

its applicability

shop agreement situations.

794.

Read

together,

that carriers may not

wages,

but may

involved.

agreement,

do

See id.
___ ___

to Eleventh(a),

or union

See Kansas City S., 26

___ ______________

F.3d. at

152, Fourth and

Eleventh(b) provide

unilaterally deduct dues from employee

so upon

the

agreement of

all

parties

Thus, even in the absence of a union shop

employees

and

deduction schedule under

carriers

may

agree

152, Eleventh(b).

-1818

to

dues

C. 45 U.S.C.
156, Bargainable Interest
_________________________________________

BLE contends

that the District Court

setting Article 21 aside on the

to

notify

BLE of

their

erred in not

basis that UTU and ST failed

negotiations, and

afford

BLE the

opportunity to participate in them.

The

RLA

representatives of

days'

mandates

rates of

"[c]arriers

the employees shall give

written notice

affecting

that

of

pay,

an intended

rules, or

and

at least thirty

change in

agreements

working conditions"

to

interested

parties.

as an interested

notice.

45 U.S.C.

156.

BLE identifies itself

party, and contends that ST or

BLE also

contends that

it has

UTU owed it

joint jurisdiction

over collective bargaining between ST and UTU, at least

respect to

train service seniority,

by dint of

with

the routine

shuttling of employees between the train service and engineer

service crafts.

According

to BLE, that

joint jurisdiction

shouldhavegivenitanopportunitytoparticipateinthenegotiations.

The

and

concluded

statutory

Eighth Circuit

that

obligation

recently faced

neither the

to

provide

carrier

BLE with

BLE's argument

nor

UTU had

notice

or

any

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.

union from

156 exists to prevent either a

unilaterally changing the terms

collective bargaining agreement.

carrier or

of the operative

Order of Railway Conductors

___________________________

-1919

and Brakemen v. Switchmen's Union of N. Am.,

_____________
____________________________

269 F.2d 726,

733 (5th Cir.), cert.

_____

156, therefore,

permit

furthers the overall

employees

representative

denied, 361 U.S. 899 (1959).

______

to

choose

freely, and

commencement

of conferences

two

if changes

parties

McMullans, 229 F.2d

_________

own

be

a procedure

made in

Section 156

RLA to

bargaining

between representatives

are to

at 56.

purpose of the

their

to ensure

Section

for "the

of the

the contract."

does not exist

to

open collective bargaining negotiations between a carrier and

a union to any other union claiming an interest.

BLE relies

compel the conclusion

chiefly on two cases,

BLE seeks.

The

neither of which

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

determined that in the

for

the

new

bargain

over

claim

any

the

with the carrier

the apprentices'

of

Id.
___

union

that

could

apprentices

could

about the terms

employment.

Id.
___

representation, therefore,

right to notice and the

RLA.

This

The court

absence of a certified representative

class,

representation

railroad employees.

fairly

claim

legitimately

and conditions of

By demonstrating

a union

a fair

established a

opportunity to participate under the

case,

by contrast,

involves collective

bargaining between a represented class of employees and their

-20-

20

carrier.

BLE

does not

assert any

over UTU members, nor could it.

already

certified UTU

as

National Mediation Board,

________________________

asserted interest in the

21.

claim of

representation

Train service employees have

their bargaining

therefore, does not

representative.

support BLE's

negotiations that produced

Article

BLE

also

relies on

Illinois Cent. R.R. Co.

_________________________

Brotherhood of Locomotive Eng'rs, 443

__________________________________

Cir.

1971).

tripartite

The

agreement

governing the

engineer work.

revisions to

UTU notice

dispute in

between

list of

UTU

joint

therefore,

the

carrier,

UTU

filed suit when BLE sought

to negotiate

opportunity to

could

revisions with the carrier.

Obviously

and

eligible for

negotiating

that BLE

BLE

train service employees

noting the tripartite agreement,

shared

138, (7th

Illinois Central involved

_________________

the rules governing the

and an

F.2d 136,

v.

list without providing

participate.

The court,

determined that UTU and BLE

interests

over

not unilaterally

the

list,

and

negotiate rule

Id. at 141.
___

no formal tripartite agreement exists in

this

case.

Central
_______

BLE, however,

indicating

agreement, the

points

that even

ebb and

flow

in

to language

the

in Illinois
________

absence of

of employees

such

between the

an

two

crafts would give the firemen an "important economic stake in

the

rules regulating

the

extra list"

establish a bargainable interest

-2121

which in

turn would

in UTU over rules governing

the list.

flow

Id. at 141-42.
___

BLE argues that the same ebb

and

vests it with a bargainable interest in the negotiation

of train service seniority.

We disagree with

Central.
_______

carrier.

placed direct

or BLE's collective bargaining

The rules

agreements with

governing the extra list, moreover,

conditions on

dictated which of the

work.

Illinois
________

First, that case revolved around a list outside of

either UTU's

the

BLE's interpretation of

a fireman's employment

firemen could also engage in

BLE's assumption of

over rules governing the

sole negotiating

-- they

engineer

responsibility

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

unilaterally govern

Article

21,

part of

with

train service employees

does not

flow itself.

negotiated

negotiations over

agreement.

UTU

the ebb and

has simply

through which

contrast, UTU

seek to

UTU, through

ST the

mechanism

accrue seniority,

general collective

as

bargaining

BLE and UTU have no tripartite agreement, nor is

attempting

to unilaterally

negotiate

set of

governing movement between the two crafts.

As the Eighth Circuit concluded,

"[t]he

distinctive division

employees
classes,
employees

under the
and

the

among

of railroad

RLA into
regular

the

crafts or

movement

crafts

that

of
is

rules

characteristic of

the industry, portends

overlapping 'interests'

among bargaining

-2222

units

in the

composition of

and in their labor agreements.

of

interest,

upon all

however,

the crafts
That sort

does not

unions the right to

notice and

participation in the arbitrations

other unions."

confer

of all

Kansas City S., 26 F.3d at

______________

does not provide BLE

791-92.

We conclude that the RLA

with a bargainable interest

in Article

21 such that ST and UTU owed BLE notice and an opportunity to

participate in the negotiations.

Affirmed.
Affirmed
________

-2323