# BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS v. Keolis Commuter Services, LLC

> District Court, D. Massachusetts · November 20, 2023

URL: https://www.frixlaw.com/law-library/cases/10201553

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** November 20, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

United States District Court
District of Massachusetts

)
Brotherhood of Maintenance of Way )
Employees, )
)
Plaintiff, )
) Civil Action No.
v. ) 23-10587-NMG
)
Keolis Commuter Services, LLC, )
)
Defendant. )

MEMORANDUM & ORDER
GORTON, J.
This case arises out of an arbitration between a railway
carrier and a labor union. The Brotherhood of Maintenance of
Way Employees Division of the International Brotherhood of
Teamsters (“BMWED” or “plaintiff”), seeks to enforce an arbitral
Award against Keolis Commuter Services, LLC (“Keolis” or
“defendant”) made under the Railway Labor Act (“RLA”), 45 U.S.C.
§ 151 et seq. Pending before the Court is Keolis’s motion to
dismiss (Docket No. 15). For the reasons that follow, the
motion will be ALLOWED, in part, and DENIED, in part.
I. Background
In 2019, Keolis, a “carrier” under the RLA, and BMWED, a
“representative” thereunder, entered into a Memorandum of
Agreement (“MOA”). The MOA establishes wages, benefits and
other working conditions for Keolis employees who are BMWED
members. It also contains a “Me-Too” provision which, according
to BMWED, requires Keolis to match certain more favorable terms
of future agreements with other bargaining units.
From December 2019 to March 2020, Keolis entered into
subsequent agreements with three other unions, the American

Train Dispatchers Association (“ATDA”), the International
Brotherhood of Electrical Workers (“IBEW”) and the Brotherhood
of Railroad Signalmen (“BRS”) that purportedly contained higher
wage provisions. Keolis and BMWED disagreed about the meaning
and application of the Me-Too provision with respect to the
three subsequent agreements. Under the RLA, the dispute was to
be resolved through binding arbitration and in March, 2021, the
parties agreed to adjudication before a “Special Board of
Adjustment” (“SBA”).
The SBA issued its award (“the Award”) in October, 2021 and
interpreted the MOA to require that:

1. The Carrier shall “extend”, and therefore, provide
the Organization with the opportunity to review the
option of accepting the general wage increase provided
in the subsequent agreements in a manner that
addresses the cost of the increased wages as it
relates to the “economic value negotiated by Keolis
and the BMWED for the contract terms commencing July
1, 2016 through June 30, 2022”.
2. Upon such discussion, the Organization will have
the opportunity to accept the general wage increase
within the economic value ascribed to the existing
MOA.
3. Where upon the discussions between the parties it
is established that the subsequent agreements
contained a greater “economic value negotiated by
Keolis and the BMWED for the contract terms commencing
July 1, 2016 through June 30, 2022”, the Claimants
shall be entitled to a general wage increase equal to
the additional value, if any, of a subsequent
agreement.
The SBA held that Keolis must afford BMWED the opportunity to
“consider the same benefit” it extended to other unions in
subsequent agreements. It also found, however, that the Me-Too
provision is not self-executing and requires evidence that “an
assessment can be made of the economic value” of the general
wage increase in the subsequent agreements when compared to the
economic value of changes made to the MOA.
In November, 2021 and January, 2022, Keolis provided BMWED
with proposals that purported to afford BMWED the opportunity to
accept the general wage adjustment made in the ATDA agreement
“as it related to the economic value of the MOA.” The January,
2022 letter also included a cost summary which, according to
Keolis, compares the total cost of the MOA with the total cost
of the ATDA agreement. BMWED avers that the cost summary
compares BMWED’s 2019 contract to Keolis’ new proposal “but not
to the economic value of the other unions’ agreements.”
In April, 2022, the parties conferred once more and were
unable to reach a resolution. BMWED asserted that Keolis did
not provide the requisite information needed to establish
whether the MOA had a greater economic value than the subsequent
agreements with other unions.
After another exchange of correspondence, Keolis made clear
its position that the issue was closed while BMWED contended
that Keolis failed to comply with the Award. Thereafter, BMWED
filed the instant petition to enforce the Award under 45 U.S.C.

§ 153 First (p). In its petition, BMWED seeks an order
compelling Keolis 1) to discuss and provide sufficient
information to enable the parties to determine the total
economic value of the MOA vis-à-vis the economic value of the
subsequent agreements with other unions and 2) to negotiate in
good faith with BMWED for a general wage increase.

II. Motion to Dismiss
A. Legal Standards
The instant motion to dismiss is brought under both Fed. R.
Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6).

In opposing a motion to dismiss for lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(1), the plaintiff bears
the burden of establishing that the Court has jurisdiction.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). If the
defendant mounts a “sufficiency challenge”, the court will
assess the sufficiency of the plaintiff's jurisdictional
allegations by construing the complaint liberally, treating all
well-pled facts as true and drawing all reasonable inferences in
the plaintiff's favor. Valentin v. Hospital Bella Vista, 254
F.3d 358, 363 (1st Cir. 2001).
If, however, the defendant advances a “factual challenge”
by controverting the accuracy, rather than the sufficiency, of
the alleged jurisdictional facts, “the plaintiff's

jurisdictional averments are entitled to no presumptive weight”
and the court will consider the allegations by both parties and
resolve the factual disputes. Id. The court has “broad
authority” in conducting the inquiry and can, in its discretion,
consider extrinsic evidence in determining its own jurisdiction.
Id. at 363–64.
To survive a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the subject pleading must contain sufficient factual
matter to state a claim for relief that is actionable as a
matter of law and “plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). A claim is facially plausible if,
after accepting as true all non-conclusory factual allegations,
the court can draw the reasonable inference that the defendant
is liable for the misconduct alleged. Ocasio-Hernandez v.
Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
When rendering that determination, a court may consider
certain categories of documents extrinsic to the complaint
“without converting a motion to dismiss into a motion for
summary judgment.” Freeman v. Town of Hudson, 714 F.3d 29, 36
(1st Cir. 2013) (citing Watterson v. Page, 987 F.2d 1, 3 (1st
Cir. 1993)). For instance, a court may consider documents of

undisputed authenticity, official public records, documents
central to a plaintiff’s claim and documents that were
sufficiently referred to in the complaint. Watterson, 987 F.2d
at 3.
A court may not disregard properly pled factual allegations
in the complaint even if actual proof of those facts is
improbable. Ocasio-Hernandez, 640 F.3d at 12. Rather, the
court’s inquiry must focus on the reasonableness of the
inference of liability that the plaintiff is asking the court to
draw. Id. at 13.
B. Analysis

For both requested remedies, Keolis seeks dismissal based
on jurisdiction under Rule 12(b)(1) and adequacy of the
complaint under Rule 12(b)(6).
1. Informational Remedy
a. Subject-Matter Jurisdiction

Keolis asserts that this Court lacks subject-matter
jurisdiction to construe the Award to require it to provide
BMWED with sufficient information to compare the economic value
of the MOA to subsequent agreements with other unions. It
contends that the plain language of the Award does not provide
instructions as to what information, if any, Keolis is to
provide and thus, imposing such a remedy would require this
Court impermissibly to interpret the Award’s scope.
Under the Railway Labor Act, arbitration agreements between
carriers and their employees must

provide that any difference arising as to the meaning,
or the application of the provisions, of an award made
by a board of arbitration shall be referred back for a
ruling to the same board, or, by agreement, to a
subcommittee of such board.
45 U.S.C. § 158(m). When an attempt to “enforce” an award
unveils a dispute that requires interpretation of the scope or
application of the award, “that dispute must be referred to a
reconvened board of arbitration for determination.” Airline
Pilots Ass’n Int’l v. Pan Am. Airways Corp., 405 F.3d 25, 33
(1st Cir. 2005) (quoting W. Air Lines, Inc. v. Labor Comm'r of
Div. of Labor Law Enforcement, 167 F.2d 566, 567 (9th Cir.
1948)) (internal quotations omitted). However, this Court
retains jurisdiction to enforce the plain meaning of an award.
In Airline Pilots Ass’n Int’l, the First Circuit Court of
Appeals clarified the circumstances under which interpretative
ambiguities in an award deprive a federal court of jurisdiction.
There, the Court reviewed an award where an arbitrator reduced

an employee’s discharge to a 90-day suspension and provided that
the employee “shall be reimbursed [sic] to service with
retention of seniority and other benefits” following his
suspension. Id. at 32 (internal quotations omitted).
The parties agreed that the terms of the award necessarily
implied that the employee would be entitled to backpay. They
disputed, however, whether the award included backpay for the 9-
month period during which the employee would have been
furloughed had he not been discharged. Id. The award did not
mention backpay at all and thus, gave no indication as to how to
treat the furlough period. Id. As a result, there was a

“legitimate question” as to how the award should be interpreted,
alternative interpretations of the award were “sufficiently
plausible” and the district court lacked jurisdiction to
interpret the award. Id. at 32-33.
Here, the Award is clear that Keolis must provide
sufficient information to enable the parties to compare the
economic value of the “contract terms commencing July 1, 2016
through June 30, 2022” with that of the subsequent agreements
and discuss the comparative values with BMWED. Before analyzing
the specific Award language invoking the exchange of
information, it is important to review the Award’s construction
of the Me-Too provision. The Award is clear that if the
economic value of subsequent agreements is less than or equal to

that of the MOA, Keolis must “extend” the general wage increase
in the subsequent agreement but also provide offsets to ensure
the new proposal is not more lucrative than the MOA. If the
economic value of the subsequent agreement is greater than that
of the MOA, BMWED is
entitled to a general wage increase equal to the
additional value, if any, of [that] subsequent
agreement.

The Me-Too provision in the Award provides that, before a
new agreement is proposed, the economic value of the MOA and the
subsequent agreements must be compared. For the parties to
determine economic value, the Award imposes a duty on Keolis
that it “shall” provide BMWED with an “opportunity to review the
option accepting the general wage increase provided in the
subsequent agreements in a manner” that addresses costs as it
relates to the economic value of the MOA. In essence, Keolis
must give BMWED a chance to review new proposals with sufficient
information related to the economic values or “costs” of the MOA
in comparison with the subsequent agreements and to discuss the
relative values accordingly.
The summary on the final page of the Award emphasizes that
negotiations with respect to proposals are

contingent upon a review of the economic value of the
MOA when compared to a subsequent agreement as
described in the Findings and Award

(Emphasis added). The provision of information needed to assess
the relative economic values of the MOA and subsequent
agreements is a condition precedent to complying with the terms
of the Award. Keolis is the only party that has access to such
information and to its new agreements with three other unions.
Furthermore, the plain language of the Award requires the
parties to have discussions concerning the comparative economic
values of the MOA and subsequent agreements. Such discussions
would be impossible without the underlying information and data
concerning economic values of the agreements.
Unlike the parties in Airline Pilots Ass’n Int’l, Keolis
does not supply a “sufficiently plausible” alternative
interpretation so as to deprive this Court of jurisdiction. The
plain terms of the Award require that BMWED has sufficient
information to compare the economic values of the agreements and
thus, the “opportunity to review the option of accepting the
general wage increases” as it relates to the relative values of
the agreements.
That the Award did not expressly order Keolis to provide
“sufficient information” is not relevant. In Airline Pilots
Ass’n Int’l, the parties agreed that the award required at least
some back pay even though it did not specifically refer to the
phrase “back pay.” Rather, the award of backpay was
unmistakably implied by the finding that the employee was

improperly discharged. Similarly, the plain terms of the Award
here require an exchange of comparative economic information is
as a prerequisite to a “discussion” about the relative economic
values of the agreements and the necessity of negotiating wage
increases. Defendant’s 12(b)(1) motion with respect to the
informational remedy will be denied.
b. Merits
Keolis asserts that it extended to BMWED the “opportunity
to review the option of accepting a general wage increase” in a
manner that accounts for the relative economic values of the MOA
and the subsequent agreements. It also contends that the union

could not establish that a subsequent agreement was of greater
economic value than the MOA. BMWED retorts that Keolis has
taken the position that it need not provide pertinent
information on economic value and has, accordingly, refused to
provide such information.
As an initial matter, nothing in the Award suggests that
BMWED bears the exclusive burden of demonstrating that the
subsequent agreements have greater economic value than the MOA.
The Award requires Keolis to provide sufficient information to
enable an assessment of the relative economic value of the MOA
and subsequent agreements. There is conflicting evidence as to
whether Keolis has complied with that requirement.
Keolis purports to have provided data in its January 31,

2022 letter that demonstrate the comparative economic value of
the MOA and the subsequent agreement reached with the ATDA.
That data, according to Keolis, shows that the MOA is more
costly than the subsequent ATDA agreement by $260,000. BMWED,
however, suggests that such data compares only the MOA to
Keolis’s new proposal “but not [to] the economic value of the
other unions’ agreements.”
The current record leaves this Court ambivalent and, in any
event, all factual inferences must be drawn in favor of the
plaintiff on a Rule 12(b)(6) motion. In addition, the record
presented is insufficient to determine whether proper

“discussion[s]” took place concerning the comparative economic
values of the MOA and subsequent agreements as required by the
Award. Accordingly, Keolis’ 12(b)(6) motion with respect to
whether it has sufficiently provided information to BMWED and
has properly engaged in discussions with BMWED concerning the
comparative economic values of the MOA and subsequent agreements
will be denied.
2. Bargaining Remedy
Keolis also contends that this Court lacks jurisdiction to
interpret the Award to require Keolis to negotiate a general
wage increase if such an increase would exceed the economic
value of the existing MOA.
The Award states that Keolis

must extend to the Organization an opportunity to
negotiate a general wage increase contingent upon a
review of the economic value of the MOA when compared
to a subsequent agreement.

In essence, Keolis’ duty to “negotiate” is contingent upon an
initial comparison of the economic value of the MOA with that of
the subsequent agreements as discussed, supra. Accordingly,
while there is no jurisdictional bar to this Court construing
the plain language of the Award, whether Keolis has fulfilled
its duty to negotiate is not yet ascertainable. The record is
simply insufficient to show whether Keolis has fulfilled its
predicate duties of providing BMWED with sufficient information
to assess comparative economic values and discussing those
values. The Court agrees with defendant however, that if the
parties determine that the MOA is of greater economic value than
the subsequent agreements, Keolis has no duty to negotiate a
general wage increase that would result in an agreement of
greater economic value than that of the existing MOA.
ORDER
For the foregoing reasons, the motion of defendant, Keolis
Commuter Services, LLC

1) to dismiss for want of jurisdiction under Fed. R. Civ. P.
12(b)(1) (Docket No. 15) is DENIED;
2) To dismiss for failure to state a claim under Fed. R. Civ.
P. 12(b)(6) (Docket No. 15) is:

a. with respect to whether Keolis has fulfilled its
duties to discuss and provide sufficient information
concerning the relative economic values of the
Memorandum of Agreement (“MOA”) and subsequent
agreements, DENIED;
b. with respect to whether Keolis has fulfilled its duty
to negotiate a general wage increase contingent upon a
review of the economic value of the MOA when compared
to the subsequent agreements, DENIED; but
c. insofar as BMWED seeks to impose a duty on Keolis to
negotiate a general wage increase if 1) it is
determined that the MOA has greater economic value
than the subsequent agreements and 2) such an increase
would be greater than the economic value of the
existing MOA, ALLOWED.
So ordered.

_/s/ Nathaniel M. Gorton_
Nathaniel M. Gorton
United States District Judge

Dated: November 20, 2023

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10201553. Public record. Not legal advice.