Railroad Legal Issues and Resources (2015)

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109 2. Arbitral Decision Enforcing Indemnity Agreement Notwithstanding 606 Other Party’s Gross Negligence that Resulted in Liability Claims In Maryland Transit Administration v. National Railroad Passenger Corporation507 a federal district court in Maryland upheld an arbitral panel’s decision that under the Amtrak– MTA indemnification agreement at issue the MTA was bound to procure liability insurance to protect both parties, notwithstanding a previous arbitral panel’s decision that the Amtrak locomotive engineer’s gross negligence was the cause of the accident giving rise to the claims. Articles 607 I. Insurance Arrangements Between Freight Railroads 607 and Passenger Carriers A 2009 report issued by the U.S. Government Accountability Office on liability and indemnity provisions in agreements between freight railroads and commuter rail agencies found that regardless of fault, commuter rail agencies usually must take on most of the liability and risk for commuter operations.508 J. Alternative Insurance Arrangements for Transportation 608 of Hazardous Material In “Rail Transportation of Toxic Inhalation Hazards: Policy Responses to the Safety and Security Externality,” the authors make several policy recommendations on the transportation of toxic inhalation chemicals and discuss risk and liability alternatives for the transportation of such chemicals.509 XXVII. LABOR RELATIONS AND EMPLOYMENT 610 A. Introduction 610 Numerous federal laws affect the rights of employees in the railroad industry. Section B discusses the history and purpose of the Railway Labor Act (RLA), arbitration of disputes under the RLA, the National Railroad Adjustment Board’s (NRAB) exclusive jurisdiction over minor 507 372 F. Supp. 2d 478, 479 (D. Md. 2005). 508 U.S. GOVERNMENT ACCOUNTABILITY OFFICE, COMMUTER RAIL: MANY FACTORS INFLUENCE LIABILITY AND INDEMNITY PROVISIONS AND OPTIONS EXIST TO FACILITATE NEGOTIATIONS 5 (2009), available at http://www.stb.dot.gov/stb/docs/Liability%20Report%20letter%206-10.pdf (last accessed Mar. 31, 2015). 509 Lewis M. Branscomb, Mark Fagan, Philip Auerswald, Ryan N. Ellis & Raphael Barclan, Rail Transportation of Toxic Inhalation Hazards: Policy Responses to the Safety and Security Externality, Harvard Kennedy School Belfer Center Discussion Paper No. 010-01 (2010), available at http://belfercenter.ksg.harvard.edu/files/Rail-Transportation-of-Toxic-Inhalation-Hazards-Final.pdf (last accessed Mar. 31, 2015).

110 disputes, and other issues arising under the RLA. Section C discusses the Labor Management Relations Act (LMRA),510 including suits by and against labor organizations and hybrid actions (claims by employees against both the employer and the union).511 Section D addresses the federal requirement that under certain circumstances transit agencies receiving federal funding must protect employees’ collective bargaining and other rights with “protective labor agreements.”512 Section E addresses the rights of employees and the application of the First and Fourth Amendments of the U.S. Constitution to transit authorities. B. The Railway Labor Act 611 Statutes and Regulations 611 1. History and Purpose of the Railway Labor Act 611 Since the enactment of the RLA in 1926,513 there have been several important amendments, including one in 1934 that established the NRAB.514 2. National Railroad Adjustment Board 613 A labor dispute “growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions” may be referred to the NRAB, which has four divisions with jurisdiction over different types of disputes.515 3. Arbitration of Disputes Under the RLA 614 The RLA structure divides labor disputes into major and minor disputes, each of which has its own mechanism for dispute resolution.516 510 29 U.S.C. § 185 (2014). 511 See UPS v. Mitchell, 451 U.S. 56, 66–67, 101 S. Ct. 1559, 1565–66, 67 L. Ed. 2d 732, 742–43 (1981). 512 49 U.S.C. § 5333 (2014). 513 The Railway Labor Act Simplified, available at: http://www.pennfedbmwe.org/Docs/reference/RLA_Simplified.html (last accessed Mar. 31, 2015). 514 45 U.S.C. § 153 (2014) (establishing the NRAB). 515 45 U.S.C. § 153, et seq. (2014) and 45 U.S.C. § 153(i) (2014); see 29 C.F.R. §§ 301.1–301.9 (2014). 516 See Elgin, J. & E. Ry. v. Burley, 325 U.S. 711, 65 S. Ct. 1282, 89 L. Ed. 1886 (1945).

111 Cases 615 4. NRAB’s Exclusive Jurisdiction over Minor Disputes 615 Brotherhood of Maintenance of Way Employees Division/IBT v. Norfolk Southern Railway Co.517 concerned an alleged violation of a collective bargaining agreement. A federal district court in Illinois stated that the standard for determining whether a case qualified as a minor dispute is: when “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.”518 5. Interpretation of Implied Agreements Is a Minor Dispute 617 In Kan. City Southern Ry. v. Bhd. of Locomotive Eng’rs & Trainmen,519 a Louisiana federal district court held that because the unions previously had consented to video surveillance, the dispute was a minor one regarding whether there were implied agreements that sanctioned the installment of inward facing cameras. 6. Preemption of State Law Claims 618 In Johnson v. Norfolk Southern Railway,520 a federal district court in Maryland held that the plaintiff’s claim required an interpretation or application of a collective bargaining agreement and thus qualified as a minor dispute under the RLA, but that the court lacked jurisdiction because the claim had to be referred to arbitration. 7. Requirement that the NRAB Exercise Its Jurisdiction 619 In Union Pacific Railroad Co. v. Brotherhood of the Locomotive Engineers & Trainmen General Committee of Adjustment,521 the Supreme Court affirmed the Seventh Circuit’s decision that the NRAB’s jurisdiction is not conditioned on whether the parties attempted to resolve their dispute in a conference as required by the RLA. 517 2012 U.S. Dist. LEXIS 136649, at *1 (N.D. Ill. 2012). 518 Id. at *52–53 (citation omitted) (emphasis in original). 519 2013 U.S. Dist. LEXIS 104622, at *1, 18 (W.D. La. 2013). 520 2011 U.S. Dist. LEXIS 22225, at *1, 3–6 (D. Md. 2011). 521 558 U.S. 67, 83, 130 S. Ct. 584, 597, 175 L. Ed. 2d 428, 444 (2009).

112 8. Judicial Power to Enjoin a Strike to Compel Compliance 620 with the RLA In Aircraft Service International, Inc. v. International Brotherhood of Teamsters AFL- CIO, Local 117,522 the Ninth Circuit held that the district court had jurisdiction because the Norris–LaGuardia Act, which “withdraws jurisdiction from federal courts to enjoin strikes ‘growing out of any labor disputes,’” does not prevent federal courts from issuing an injunction to compel the parties to comply with the requirements of the RLA.523 Articles 622 9. Overview of the RLA and Other Labor Relations Laws 622 A report by the Congressional Research Service provides an overview of three major labor relations laws, including the RLA; provides a brief history of each law; explains how each statute operates and is administered; and discusses the rights and duties of parties subject to the law.524 10. Whether the RLA Completely Preempts Claims Under 623 State Law An article in the Transportation Law Journal, which examines the principles and the application of the doctrine of federal preemption, particularly in regard to the RLA, concludes that the Supreme Court’s decision in Beneficial National Bank v. Anderson525 means that the RLA should completely preempt claims under state law that involve disputes over labor agreements.526 11. Contractual Due Process and Regulations on Certification of 623 Locomotive Engineers An article in the Transportation Law Journal examines the federal government’s certification program for locomotive engineers and explains that the FRA made the appellate 522 742 F.3d 1110 (9th Cir. 2014). 523 Id. at 1114 (citation omitted). 524 ALEXANDRA HEGJI, FEDERAL LABOR RELATIONS STATUTES: AN OVERVIEW 6-14 (Congressional Research Service, 2012), available at http://www.fas.org/sgp/crs/misc/R42526.pdf (last accessed Mar. 31, 2015). 525 539 U.S. 1, 123 S. Ct. 2058, 156 L. Ed. 2d 1 (2003). 526 Kelly Collins Woodford, Harry A. Rissetto, & Thomas J. Woodford, Complete Preemption under the Railway Labor Act: Protecting Congressionally Created Grievance Arbitration Procedures, 36 TRANSP. L. J. 261, 269, 297–98 (2009).

113 provisions regarding certification completely separate from those governing disputes over collective bargaining agreements that are covered by the RLA.527 C. The Labor Management Relations Act 625 Statutes 625 1. Suits By and Against Labor Organizations 625 Section 301 of the LMRA, codified in 29 U.S.C. § 185, “protects the rights of management and organized labor and establishes a comprehensive scheme of dispute resolution.”528 Cases 626 2. Hybrid Actions for Alleged Misconduct of the Employer 626 and the Union Abramowich v. CSX Transportation, Inc.,529 is an example of a hybrid action that may be brought under § 301 of the LMRA and the RLA. A hybrid action consists of two causes of action, one against the employer for breach of the collective bargaining agreement and one against the union for breach of its duty of fair representation.530 3. Six-Month Statute of Limitations Applies to Hybrid Actions 629 In 1983, the Supreme Court held that the 6-month statute of limitations in the NLRA applied to hybrid actions and to actions for breach of fair representation under the LMRA.531 527 John LaRocco & Richard Radek, The Dilemma of Locomotive Engineer Certification Regulations Vis- à-vis Contractual Due Process in Discipline Cases, 40 TRANSP. L. J. 81, 83–84 (2013). 528 Christopher L. Sagers, Due Process Review under the Railway Labor Act, 94 MICH. L. REV. 466, 466 (1995). 529 2013 U.S. Dist. LEXIS 138150, at *1 (W.D. Pa. 2013). 530 See Barbara J. Van Arsdale, When Does Six-Month Limitations Period, Applicable to Employee’s “Hybrid” Action against Employer and Union under § 301 of Labor Management Relations Act of 1947 Begin to Run, 194 A.L.R. FED. 1. 531 DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 155, 103 S. Ct. 2281, 2285, 76 L. Ed. 2d 476, 483 (1983).

114 D. Protective Labor Arrangements for Employees of Transit 630 Agencies Receiving Federal Funding Statutes 630 1. Section 13(c) 630 As discussed in this subpart, certain provisions of the federal labor laws apply to any activity a private party performs under contract for a transit agency when the costs will be reimbursed by federal funds.532 Case 631 2. Applicability of Section 13(c) to a Transit Employee on 631 Loan to Another Agency Mancuso v. City of Durham533 involved an employee’s complaint that his § 13(c) rights534 were violated when he was on loan from the Metropolitan Transportation Authority to the Triangle Transit Authority because “he was placed in a temporary position with duties that were not comparable to the duties of his prior position.”535 The North Carolina Court of Appeals remanded the case for a ruling on whether the parties were bound by an arbitration clause in the union contract with the city of Durham.536 Cases 632 E. Employees and Application of the First and Fourth Amendments 632 to Transit Authorities 1. Transit Authority Did Not Violate Employee’s Freedom of Speech 632 In Anemone v. Metro. Transp. Authority,537 an employee of the MTA alleged that the MTA violated his right of free speech. The Second Circuit affirmed a federal district court’s 532 FEDERAL TRANSIT ADMINISTRATION, REPORT TO CONGRESS ON THE COSTS, BENEFITS, AND EFFICIENCIES OF PUBLIC-PRIVATE PARTNERSHIPS FOR FIXED GUIDEWAY CAPITAL PROJECTS 41, available at http://www.fta.dot.gov/documents/Costs_Benefits_Efficiencies_of_Public- Private_Partnerships.pdf (last accessed Mar. 31, 2015). 533 2013 N.C. App. LEXIS 427, at *1 (N.C. App. 2013). 534 49 U.S.C. § 5333(b). 535 Mancuso, 2013 N.C. LEXIS 427, at *2. 536 Id. at *7. 537 629 F.3d 97 (2d Cir. 2011).