PUBLIC LAW BOARD NO. 7290
Case 1
Award 1
PARTIES TO THE DISPUTE:
BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY
AND
AMERICAN TRAIN DISPATCHERS ASSOCIATION
STATEMENT OF CLAIM:
(1) The American Train Dispatchers Association ("ATDA") and the dispatchers it
represents violated express and implied provisions of the current collective
bargaining agreement, including but not limited to Article 2(c), Article 2(a) and
Article 7(f) and GCOR provisions 1.15 and 1.6 by inciting, instigating,
encouraging and participating in a collective job action, without notice, on March
2,2005.
(2) As a result of this violation, the ATDA is liable for no less than $300,000 in
actual damages.
Findings:
The carrier and employees involved in this dispute are respectively carrier and
employees within the meaning of the Railway Labor Act, as amended June 21, 1934.
On March 2, 2005, the train dispatchers at three of the Carrier's dispatching
facilities collectively walked off the job before their shifts were complete. The parties
arrived at a settlement pending a determination by the United States District Court as to
whether the strike was a minor dispute or a major dispute under the Railway Labor Act
(RLA).
On May 12, 2005, United States District Judge Terry Means determined the
dispute was a minor dispute and directed the matter be resolved in Section 3
arbitration. He determined there was no need for an injunction since there was no
further threat of a strike by ATDA.
PLB 7290. Award I, BNSF/ATDA
By letter dated March 29, 2005, the Carrier notified General Chairman Paul
Ayers the Carrier was submitting a "claim ...concerning ATDA's breach of the
ATDAlBNSF Railway labor agreement."
That claim is the subject matter of the dispute before this Board.
In order to analyze this dispute, it is important to understand the history of this
industry. More than most industries, the railroads have been under the control of the
United States government. Since the national railroad strike of 1877, which was ended
by the use of federal troops, there has been a great deal of government intervention in
the industry.
In 1917, the federal government nationalized the industry in order to transport
troops and war materials, but returned the railroad system to its owners following the
war. However, a series of Acts were legislated in an attempt to maintain labor
harmony in the industry. Most were ineffective until the major Carriers and the
Organizations negotiated a proposal which created the framework for the Railway
Labor Act which was enacted by Congress in 1926. The Act was amended in 1934 and
1966 and in 1936 it was expanded to include the airline industry.
Generally, the Act was intended to prevent interruption of services by providing
for the prompt resolution of disputes between carriers and employees and to protect the
right of employees to organize and bargain collectively. To this end the act encourages
the parties to promote negotiations and the successful resolution of disputes arising out
of those agreements.
In addition to the history of the RLA, there are other matters the Board believes
are relevant before we specifically discuss the Carrier's claim.
Unlike contractual grievance procedures encouraged by the National Labor
Relations Act (NLRA) which generally end in some type of arbitration, arbitration of the
grievances under the RLA are statutory. Moreover, for the most part, arbitration arising
under the RLA is appellate instead of de novo and the record presented at arbitration is
restricted to argument and evidence exchanged during the handling of the grievance on
property.
PLB 7290. Award I. BNSF/ATDA
2
Under either process, arbitral decisions are not deemed precedential. As so
aptly stated by Arbitrator Gerald Cohen in Anheuser-Busch, Inc. 68 LA 397 (1977):
Neither are arbitral decisions binding on other arbitrators, as court appellate
decisions are on lower courts. All arbitrators are on the same footing; while their
opinions may furnish guidance, they do no more than that.
Only when the issue and fact situation under the same contract language
between the parties has been decided in an earlier arbitration does the doctrine of res
judicata apply. The appellate nature of arbitration under the RLA makes it even more
difficult to utilize awards as authoritative because, in most cases, it is impossible to
know what arguments and evidence may have been presented.
In the instant case, over objections of the Organization at the hearing, the Board
admitted into the record the NRAB First Division Award 26448, Union Pacific Railroad
Company and United Transportation Union (2007). In the Board's opinion that case
provides little guidance in the instant case. The claim did not involve these same
parties or the contract language allegedly violated here. That case alleged a violation
of a supplemental agreement which contained a "no-strike" provision.
I
In addition, even though the courts may at times view case law under the NLRA
helpful in deciding cases under the RLA, they are cognizant that the NLRA case law is
not controlling in RLA cases. As the Court noted in Chicago & N.W. RY. V. UTU, 402
U.S. 570, 579 (1971), parallels between the NLRA and the RLA should be drawn with
the utmost care and with full awareness of the difference between the statutorv
schemes. (Emphasis added) (See highlights of the Railway Labor Act ("RLA") and the
U.S. Department of Transportation's ("DOT") Role in RLA Disputes, Federal Railroad
Administrators: Freight Railroading, www.fra.dot.gov, as well as, Introduction to the
Railway Labor Act, Paul, Hastings, Janofsky & Walker, LLP, BNA Books (2005)
Likewise, it is well established that collective bargaining agreements cannot be
compared to private/commercial contracts. Referring to a decision reached in
International Assn. Of Machinist v. Cutler-Hammer, Inc., 217 App. Div. 917, 67 NYS 2d
317, Justice Douglas iterated: "The lower courts in the instant case had a like
preoccupation with ordinary contract law." U.S. Steelworkers v. American Mfg. Co. 363
U.S. 564 (1960). In that same decision, Justice Brennan in his concurring opinion
asserted: "...The meaning of the arbitration promise is not to be found simply by
reference to the dictionary definitions of the words the parties use, or by reference to
PLB7290. Award I. BNSF/ATDA
3
the interpretation of commercial arbitration clauses. Words in a collective bargaining
agreement, rightly viewed by the Court to be the charter instrument of a system of
industrial self-government, like words in a statute, are to be understood only by
reference to the background which gave rise to their inclusion." (Emphasis added)
Subsequently, Justice J. Blackmun expressed the Court's view in Consolidated Rail
Corp. v. Railway Labor Executives, 491 U.S. 299 (1989). See Transportation Union v.
Union Pacific R. Co., 385 U. S. 157 161 (1966) This Court has observed, "A collective
bargaining agreement is not an ordinary contract for the purchase of goods and
services, nor is it governed by the same old common-law concepts which control such
private contracts. '...[I]t is a generalized code to govern a myriad of cases which the
draftsmen cannot wholly anticipate...The collective agreement covers the whole
employment relationship. It calls into being a new common law - the common law of a
particular industry or of a particular plant." Id., at 160-161 (citation omitted) (quoting U.
S. Steelworkers v. Warrior & Gulf Navigation Co. 363 U.S., at 578-579)
Based on the history of the Act and the rationale illuminated above. the Carrier's
reliance on damages awarded in a breach of contract under "ordinary contract law" is
misplaced. Likewise, any reliance on arbitrations involving collective bargaining
agreements negotiated under the National Labor Relations Act which contain a "no
strike" provision are not relevant to the case at hand. As will be discussed in greater
depth hereinafter, the remedy for such concerted activity in this industry is mandated in
the RLA.
With this backdrop and after thoroughly reviewing the record in this case, the
Board does not believe the Carrier's claim can be sustained.
In the instant case, there may have been a violation of the General Code of
Operating Rules (GCOR). when the Organization sanctioned a walkout that was later
determined to be an illegal strike over a minor dispute, but this did not give the Carrier
access to the statutory claims procedure. These rules set forth the Carrier's
expectations relative to employee performance and behavior. We concur with the
Organization that the Carrier can discipline employees if they violate these rules.
However, there is no evidence there was ever any negotiations or mutual understanding
that these rules would give access to the Carrier to seek damages for strikes over minor
disputes. To now give such meaning to these rules, is to ignore the fact they were
unilaterally implemented. In addition, there is nothing in the GCOR which indicates they
PLB 7290. Award I, BNSF/ATDA
4
apply to the Organization in any way or could be used to exceed remedies provided by
the Act relative to illegal strikes.
In order to maintain a level playing field in bargaining and minimize disruption in
services, the legislature implemented the RLA in 1926, which was based on the
guidelines proposed by the parties. The Act not only allowed employees to freely
organize, it encouraged collective bargaining and provided for statutory arbitration.
Therein, it also provided that strikes over minor disputes could be enjoined by the
courts. Over the years, the lower courts and the Supreme Court have clearly held that
the Act does not provide for monetary damages as a result of a strike conducted over a
minor dispute. They held that the intended remedy was for the courts to enjoin such
concerted activity. The intent was to provide a level playing field for the parties. If
Congress intended otherwise, they have had ample opportunity, over 75 years. to
amend the statute to correct any mistakes as to the intent of the Act.
Furthermore. there is nothing in the provisions of the Agreement cited in the
Carrier's claim which provides the Carrier the right to seek damages for the
Dispatcher's walkout on March 2. 2005.
To the contrary, there is persuasive evidence the parties never intended that
such a breach would provide the Carrier access to a claim for damages. That is why
the Carrier sought on more than one occasion to negotiate a "no-strike" provision into
the Agreement. In 1988, the Carrier proposed the following provision:
Engaging in or respecting strikes, picketing and/or secondary boycott activities
are prohibited. Appropriate penalties will be applied for an employee and/or
Organization which violates such commitment.(Union's Exhibit 59)
This bargaining proposal was subsequently presented to Presidential Emergency
Soard (PES) No. 219. The Carrier presented the following proposal:
3. The Organization shall not, in connection with any dispute as to which, or at a
time when, a resort to self help by the Organization violates the Railway Labor
Act, authorize, cause, encourage or engage in any strike, picketing, refusal to,
cross a picket line, or other work stoppage of or refusal to work for the Carrier.
6. No employee of the Carrier represented by the Organization shall, in
PLB 7290. Award I. BNSF/ATDA
5
connection with any dispute as to which, or at a time when, a resort to self help
by the Organization violates the Railway Labor Act, participate or engage in any
concerted strike, picketing, refusal to cross a ;picket line, or other concerted work
stoppage of or refusal to work for the Carrier.
7. In the event that employees violate paragraphs 4,5 or 6 above, the
Organization shall exert every good faith effort to have such actions discontinued
at the earliest possible time.
8. If the Organization violates either paragraph 1, 2, 3 or 7 above, any
agreement requiring employees of the Carrier to be or to become members of
the Organization as a condition of continued employment, any agreement
providing for the deduction by the Carrier from the wages of employees
represented by the Organization, and any other agreement between the Carrier
and the Organization made pursuant to or authorized by Section 2 Eleventh of
the Railway Labor Act, shall terminate and shall no longer be of any force or
effect unless and except to the extent that the Carrier in its sole discretion waives
the application of this provision.
9. The violation by an employee of either paragraph 4,5 or 6 above shall
constitute cause for the employee's discharge from employment by the Carrier or
for such lesser discipline that the Carrier in its sole discretion determines to be
appropriate, subject to contractual discipline procedures.
10. The remedies provided in paragraphs 8 and 9 above shall be in addition to,
and shall not foreclose resort by the Carrier to, any other remedies it may have
against the Organization or any employee for violation of the above contractual
obligations or of the Railway Labor Act, including damages and injunctive relief.
By way of explanation the Carrier provided the following rationale:
It is not surprising, therefore, that the first expressed purpose of the RLA is to
"avoid any interruption of commerce or to the operation of any carrier engaged
therein," and thus that, as the courts have long recognized, the "major purpose
of...the Railway Labor Act was 'to provide a machinery to prevent strikes.'"
Unfortunately, the RLA has proven to be inadequate fully to achieve that
purpose.
Section 3 of the RLA provides for mandatory arbitration by an adjustment board
of so-called "minor" disputes over the application or interpretation of existing
agreements that are not settled on the property; hence, strikes over such
disputes are illegal and may be enjoined by the courts. However, even though
that clearly has been the law at least since the Chicago River decision by the
Supreme Court in 1957, strikes and threatened strikes over minor disputes
continue to be relatively frequent. This has been true despite the arbitration
PLB 7290, Award 1, BNSF/ATDA
6
remedy afforded by the statute and despite the fact that, if a union believes that
a carrier does not have an arguable basis for the disputed action, the union may
sue for an injunction on the ground that the carrier has made a unilateral change
in its agreements without exhausting the major dispute provisions of the Act.
Such strikes over minor disputes invariably are enjoined, but this may take a few
hours or occasionally even days during which the operations of the carrier are
substantially if not completely halted with a consequent loss of business and
revenue. And, in any event, the carrier is subjected to substantial expense in the
preparation and handling of the litigation. In short, in such circumstances the
union appears to proceed on the basis that it has little to lose, since it can always
resort to arbitration or litigation, and can punish the carrier for taking the dispute
action.
There can be no justification for such illegal strikes over issues as to which the
unions have a remedy by arbitration or in the courts, and it seems plain that a
contractual deterrence is both needed and otherwise justified since the
prohibitions of the RLA have not sufficed in many instances to prevent such
strikes or threats of such strikes. Thus, while not its principal purpose, the
proposed no strike clause would apply to all strikes and picketing that are
unlawful under the RLA, and would subject both the union and the employees
involved to penalties for such illegal strikes and picketing. By thus making clear
that the unions and employees do have something to lose if they engage in such
illegal activities, future such strikes and strike threats, and their attendant costs
to the carriers, should be deterred. (Union Exhibit 60, pp 10-12, footnotes
omitted)
In its explanation of the proposal, the Carrier provided the following:
The proposed no strike clause would apply separately to each of the unions and
to the employees represented on a particular carrier by a particular union. With
respect to a union and to the employees it represents on a carrier, paragraphs 1
and 4 in essence would prohibit participation in or the honoring of secondary
strikes and picketing of the carrier, ...paragraphs 4 and 6 in essence would
prohibit strikes or picketing that violate the RLA. The prohibitions applicable to
the employees are limited to concerted action and thus would not apply to purely
individual refusals to work, etc...
The reasons for those prohibitions have been set forth in the above discussion of
the Background and Reasons for the Proposal and need not be repeated. It may
be desirable, however, to provide some further explanation of the reasons for the
proposed penalties for violations of the no strike clause.
The obvious reason, of course, is to better assure compliance with the no strike
clause by penalizing violators. Although the courts generally have held that
strikes or picketing allegedly in violation of such a clause are enjoinable as giving
PLB 7290. Award I. BNSF/ATDA
7
rise to minor disputes under the RLA, as has been noted above the unions often
have not been deterred from striking or threatening to strike over minor disputes
even though it is clear that such strikes violate the RLA and will be enjoined by
the courts. Although the injunction normally ends the strike, it has no further
consequences unless the injunction itself is violated, so the union and
employees may take the view that they have nothing to lose but a lawsuit.
Provision of the proposed contractual penalties should make clear that such a
view no longer is tenable and provide an effective deterrent to prohibited strikes
and picketing.
Violation of a no strike clause by an employee would be cause for his discharge,
although the carrier in its discretion could impose some lesser discipline.
Discharge is a usual penalty for an employee's violation of contractual
obligations, and is particularly appropriate where the employee joins an attempt
to prevent his employer from operating despite an agreement not to do so.
Penalizing a union for violating its contractual obligations is not as common, but
is particularly appropriate and necessary in regard to violation of a no strike
clause as the union normally instigates and orchestrates strikes and picketing.
The proposed penalty is, moreover, particularly appropriate - the termination of
union shop and dues checkoff agreements made between the carrier and union
under or pursuant to Section 2 Eleventh of the RLA. A carrier should not be
required to aid a union in maintaining its membership and collecting its dues that
violates its obligation not to strike or picket the carrier and thus attempts to force
it to cease operating.
Again, in 1994 and 1999, the Carrier renewed its efforts to negotiate a prohibition
of strikes over minor disputes:
In addition to prohibitions imposed by existing requirements, provide that, except
for lawful primary strikes and picketing of the carrier or carriers involved in a
major dispute with the Organization, engaging in or respecting strikes or
picketing of any carrier or of anyone else including shippers, secondary boycotts,
slowdowns and any other concerted self-help activities are prohibited.
Appropriate penalties will be applied for an employee and/or Organization which
violates this provision. (See Union Exhibit 61, 62)
This provision was also rejected and was not included in the parties Agreement.
The Carrier's contention that they have always had the right to file a claim and
seek damages under the existing terms of the Collective Bargaining Agreement is not
tenable. If for no other reason, there is no evidence there was ever a mutual
understanding that the provisions cited by the Carrier in this case, provided such
PLB 7290. Award I. BNSF/ATDA
8
access. Certainly the very premise of good faith bargaining mandates that there be a
mutual understanding of the language incorporated. There is nothing to demonstrate
that the parties intended the language, or a breach thereof, to be a means by which the
Carrier could secure damages for a strike over minor disputes. Moreover, the language
is clear in its meaning. If the Carrier believed the language included such a wholesale
right, they had an obligation to advise the Union they believed the language meant
something other than what it said. Not only does the language not provide that access,
the Carrier never once, prior to the instant dispute, claimed such a right. Furthermore,
their attempts to secure a no-strike clause into the Agreement belies their contention.
Quite simply, the Carrier cannot obtain through arbitration what they failed to
achieve in negotiations
The Carrier points out it was part of a congress of carriers who attempted to
negotiate the no strike clause. Therefore, they urge, the presentation of this proposal
did not mean they did not already have the right to pursue a damages claim against the
Organization for a breach of the Agreement. However, we reiterate this is not a
contract governed by the common law of contracts, but a Collective Bargaining
Agreement arising out of a statute. It is governed by the practices and understandings
that have been created by the interpretation of that Statute since its implementation as
well as the interpretation of the Collective Bargaining Agreement. More importantly, the
parties' practices and their collective bargaining were undertaken with these
understandings and interpretations in mind. The fact that there was more than one
carrier proposing the language demonstrates the universal understanding held in this
industry relative to the remedy for strikes concerning minor disputes.
Nor can this Board accept the Carrier's position that there is an implied right to
damages for a breach of the Agreement. Again, we are not talking about private
contracts. We are dealing with a Collective Bargaining Agreement under the RLA and
the courts have determined the penalty for an organization's breach of the Agreement
is promulgated by the Act. The parties have negotiated Agreements in recent years
fully aware of the courts' interpretation of the remedy provided by the Act for illegal
strikes. The assertion that there was always an implied right to seek damages in these
cases, which the carriers never used, is unpersuasive. In addition, for the reasons cited
herein, it is unfounded.
PLB 7290. Award I. BNSF/ATDA
9
The Organization may have been premature in its concerted activity on March 2,
However, there is nothing to show they were not sincere in their belief that the
Carrier's actions constituted a "major" dispute. The courts have long understood that it
is not always clear whether a dispute is a "major" or "minor" dispute. Additionally, they
have established a low burden for demonstrating a dispute is a "minor" dispute under
the Act. (See Consolidated Rail Corp. v. Railway Labor Executives, 499 U. S. 299,
Carrier's Exhibit 59) The Organization has not demonstrated a callous disregard for the
Carrier in the past and Judge Means recognized they considered the Carrier's decision
to change personal leave and compensatory time practices a major dispute.
Regardless. the better course of action would have been to seek redress through the
arbitration procedure where a determination could have been made as to whether the
Carrier's actions violated an existing provision of the contract or constituted a "major"
dispute over which the arbitration Board had no jurisdiction. Organizations must
recognize that both parties are to have a level playing field. In today's competitive
world, Carriers are rarely in a position to write off the costs involved in a disruption of
service. The frustration felt by the Carrier in this case as well as those felt by other
carrier's over the needless disruption of service is understandable. It is in the best
interest of the parties to resolve disputes by the most expeditious and least costly
means which is through the statutory claims process.
2005.
For the reasons cited herein, the claim is denied.
F. L. McCann
Employee Member
Rob Karov
Carrier Member
I'LD 7290. Award I, BNSF/ATOA
10
Carrier Member's Dissent
(Award No.1 of Public Law Board 7290)
The majority's decision in this case is not just wrong - it utterly fails to accomplish the
fundamental task of contract interpretation that is the sole raison d 'eire of an arbitration panel
constituted under the Railway Labor Act. Rather than analyzing any of the actual contract
language relied upon by the carrier (or the union), the board majority holds that BNSF is not
permitted to "access the statutory claims procedure" when seeking damages for an illegal strike.
Award at 4. It bases this conclusion on a broad interpretation of the alleged "policies" ofthe
Railway Labor Act, asserting that the only "penalty for an organization's breach of the
Agreement is promulgated by the Act." Id. at 9. In other words, the majority appears to believe
that, as a matter of law, carriers have no remedy whatsoever for the harm suffered as a result of
an illegal strike.
As an exercise in statutory analysis, the majority's decision is lacking, to say the least.
The Railway Labor Act is quite clear that contract disputes may be referred to arbitration by
"either party," 45 U.S.C. § 153 First (i), and there is certainly no qualification on this right of
"access" to the "statutory claims procedure" when it comes to carrier claims for monetary
damages arising from strikes. It may be true, as the majority points out, that various courts have
rejected a statutory remedy for illegal strikes, but the majority muddles together statutory
interpretation and contract interpretation when it cites this as a basis for rejecting the carrier's
claim for a contractual remedy.'
In asserting that carriers do not have any right to bring a contractual claim for damages,
the majority's decision is also in direct conflict with NRAB First Division Award No. 26448,
which implies a contractual damages remedy for a breach of contract by the union in
circumstances that are far less grievous than the facts presented here. The majority attempts to
distinguish Award No. 26448 by asserting that it arose from a "violation of a supplemental
agreement which contained a "no-strike' provision." Award at 3. That is not correct. There was
not a "no-strike" provision in the Union Pacific agreement at issue in Award No. 26448. The
majority offers no rational explanation as to why a contractual damages remedy could be implied
in Award No. 26448 but not here.
In any event, the majority's job was not to interpret the RLA or apply any underlying
statutory policies to the issue at hand. Its job was to interpret the parties' agreement. To be sure,
the majority attempts to dress up its analysis with a few passing references to the Agreement or
the parties' intent. But each time it does so, it comes back to the notion that BNSF had no legal
right to seek damages at all. See, e.g., Award at 5 ("provisions of the Agreement cited in the
Carrier's claim" do not provide "the right to seek damages"); id. (the "parties never intended"
The majority also engages in further legal analysis in trying 10 distinguish NLRA precedent and
common law precedent establishing that damages are the default remedy for breach of contract. But in
doing so, it ignores voluminous NRAB and PLB precedent holding that monetary damages are an
available remedy for a violation of contracts under the RLA, regardless of whether the parties' collective
bargaining agreement expressly contains such a remedy or not, How else to explain the so-called "basic
day" damages remedy that is routinely imposed against carriers?
that breach of the agreement "would provide the Carrier with access to a claim for damages");
id. at 9 (asserting that agreement's "practices and understandings" are a function of
"interpretation of that Statute [the RLA"). Thus, while the Award is hardly a paradigm of
clarity, the majority's ruling is that BNSF is never entitled to bring a claim for damages against a
union for an illegal strike, regardless of what the contract actually says and regardless of
whether the contract was in fact breached. That is, simply put, not contract interpretation. As a
result, the board has exceeded its jurisdiction and issued a decision that fails to comply with the
RIA itself.
Given the majority's failure to perform its assigned task, its muddled reasoning, and its
inability to distinguish other authority, this award will certainly do nothing to dissuade the
carriers from pursuing contractual claims for damages in future cases arising from illegal strikes.
Thus, it is perhaps ironic, in light of the majority's statement that "arbitral decisions are not
deemed precedential,' that this decision will ultimately prove to have no precedential value
whatsoever.
..2~
Robert Karov - Carrier Member
2