Brotherhood of Maintenance of Way Employes division/ibt v. National Railroad Passenger Corporation

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BROTHERHOOD OF )

MAINTENANCE OF WAY )

EMPLOYES DIVISION/IBT, )

)

Plaintiff, ) Civil Case No. 20-00844 (RJL)

)

Vv. )

)

NATIONAL RAILROAD PASSENGER __)

CORPORATION, )

)

Defendant. )

{~...

MEMORANDUM OPINION

(March /&%, 2021) [Dkt. #4, #8]

This case presents a labor dispute over the right to perform certain safety-related

work along railroad tracks. Plaintiff Brotherhood of Maintenance of Way Employes

Division/IBT (“‘BMWED’”) seeks a declaratory judgment against defendant National

Railroad Passenger Corporation (“Amtrak”) stating that Amtrak violates the Railway

Labor Act (““RLA”), 45 U.S.C. § 152 Seventh, by allowing outside contractors to perform

certain “flagging” work, which, BMWED asserts, is reserved to “BMWED-represented

Amtrak employees” under the parties’ collective bargaining agreement (“CBA”). See

Compl. [Dkt. #1] at 1, 6-7. Amtrak disagrees with BMWED’s interpretation of the CBA

but moves to dismiss on jurisdictional grounds, arguing that regardless of the correct

contract interpretation, this is a “minor dispute” subject to compulsory arbitration under

the RLA. See Def.’s Mot. to Dismiss (“Def.’s MTD”) [Dkt. #4-1] at 6.

Presently before the Court are Amtrak’s Motion to Dismiss under Federal Rule of

Civil Procedure 12(b)(1) [Dkt. #4] and BMWED’s Motion for Summary Judgment

[Dkt. #8]. Because I agree with Amtrak that its interpretation of the CBA is at least

“arguably justified,” I have concluded this is a minor dispute under the RLA and must

therefore be submitted to arbitration. See Consol. Rail Corp. v. Ry. Labor Execs.’ Ass’n,

491 U.S. 299, 307 (1989) (hereinafter “Conrail”’). Accordingly, for the following

reasons, defendant’s motion to dismiss is GRANTED, plaintiffs motion for summary

judgment is DENIED, and plaintiff's complaint is DISMISSED.

BACKGROUND

A. The Parties’ Agreement

Amtrak is a government-subsidized passenger rail carrier subject to the RLA.

Compl. 2. BMWED is a labor union representing Amtrak maintenance of way

employees, who are generally responsible for constructing, repairing, and maintaining

Amtrak’s track as well as bridges, tunnels, and related structures. Id. 1.

Amtrak and BMWED are parties to the CBA, which governs the rates of pay,

rules, and working conditions for maintenance of way employees working on Amtrak’s

Northeast Corridor (“NEC”). Jd. 96. The “Scope Rule” of the CBA, as amended in

1987, defines the scope of maintenance of way work as,

work, such as, inspection, construction, repairs and maintenance of water

facilities, bridges, culverts, buildings and other structures, tracks, fences and

roadbed, including catenary system, third rail, substations and transmission

in connection with electric train operation, and work which as of June 1,

1945, was being performed by these employees, such as station lighting,

power lines, floodlights, on elevators and drawbridges ....

Ex. A to Decl. of Aaron Buck (“Buck Decl.”) [Dkt. #4-2] at 11.

The CBA further provides that “[i]n the event [Amtrak] plans to contract out work

within the scope [of maintenance of way work],” it must notify BMWED. Jd. The CBA

then details certain additional restrictions on, and procedures for, contracting out such

work. /d. at 11-12.

A side letter to the CBA (“the Side Letter’), dated January 22, 1987, states that “‘it

is the Carrier’s intent to preserve work of the scope and magnitude historically performed

by members of the BMWE for the Carrier as of January 1, 1987, or prior thereto.”! Compl.

4 9; Def.’s MTD at 3.

B. The Present Dispute

The present dispute arises out of BMWED’s concern that Amtrak will allow

outside contractors to perform certain “flagging” work along the NEC. Generally

speaking, flagging work involves the “protection of workers and equipment on the tracks

and in the railroad right of way . . . from oncoming trains and other equipment.” Decl. of

Anthony Sessa (“Sessa Decl.) [Dkt. #8-3] { 8.

This work is necessary for the protection of workers and is required in order to

comply with federal regulations. See generally 49 C.F.R. Part 214, Subpart C. As

particularly relevant here, Federal Railroad Administration regulations require that when

work is done on or near live tracks, a Roadway Worker in Charge (“RWIC”) must be

present and undertake various responsibilities designed to ensure the safety of the

' Here, “the Carrier” refers to Amtrak and “BMWE” refers to BMWED’s predecessor organization, the

Brotherhood of Maintenance of Way Employes. Compl. { 1.

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workers involved. See Sessa Decl. J 8; see also 49 C.F.R. § 214.321. The RWIC must

be qualified in railway worker protection and, among other things, verify that workers are

aware of applicable safety rules, coordinate with train dispatchers, and ensure people and

equipment are in a safe position prior to the passage of any train. See Sessa Decl. { 8;

Buck Decl. § 6-7.

In February and March 2020, BMWED learned that Amtrak was training

employees of an outside contractor, RailPros, on track protection rules and procedures so

that RailPros employees could act as RWICs. Compl. 412. According to Amtrak’s

Senior Director Labor Relations, RailPros sought this training because it hoped to

provide flagging protection to third parties when those entities performed work on or near

Amtrak tracks such that compliance with the federal safety regulations is required.

Id. 4 14. After receiving training, RailPros began advertising positions described as

“Roadway Worker In Charge” at several locations along the NEC. Jd. 12.

BMWED took issue with an outside contractor such as RailPros performing work

it viewed as reserved to its members. Accordingly, it wrote to Amtrak, stating that

“under the CBA, performance of all on-track protection on Amtrak’s property, and

performance of such work for third party projects and for third parties engaged in non-

railroad work near Amtrak’s track structure such that Amtrak operating and roadway

worker rules apply, is reserved to BMWED forces.” Jd. § 15. It further asserted that

“this work has been performed exclusively by BMWED members since the inception of

Amtrak” and that if Amtrak permitted anyone other than BMWED-represented Amtrak

employees to perform such flagging work, it would “constitute a unilateral change of the

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CBA.” Id.

Amtrak responded with a letter coritesting BMWED’s interpretation. To Amtrak,

at least where the underlying work for which flagging was required was “not controlled

or instigated by Amtrak” and was “not for the exclusive benefit of the railroad,” and

where Amtrak was not hiring the vendor providing the flagging work, any flagging work

fell outside the scope of the CBA. See Ex. D to Buck Decl. Amtrak also contested

BMWED’s allegation of a “unilateral change,” arguing instead that the dispute was “a

matter of contract interpretation .. . and so must be resolved through arbitration under

Section 153 of the RLA.” Jd.

BMWED subsequently filed the instant complaint alleging that “by allowing a

contractor and contractor forces to perform flagging work on or near Amtrak property

where Amtrak operating and roadway worker rules apply, and to access to [sic] Amtrak

property to provide on track protection where Amtrak operating and roadway worker

rules apply, Amtrak is effectively rejecting, abrogating, and changing its agreements with

BMWED .. . in violation of Section 2, Seventh of the RLA.” Compl. § 22. Amtrak

moved to dismiss for lack of subject-matter jurisdiction in light of the mandatory

arbitration provisions of the RLA, see 45 U.S.C. § 153 First (i). Def.’s MTD at 1.

BMWED then moved for summary judgment on the basis that it had definitively shown

that the CBA reserves flagging work—including work performed for third parties that

neither inures to Amtrak’s benefit or is performed under Amtrak’s control—for its

2 Under the RLA, a “unilateral change” is a term of art specifically implicating a violation of 45 U.S.C. §

152 Seventh, which prohibits any carrier from “chang[ing] the rates of pay, rules, or working conditions

of its employees” except in the manner prescribed by the RLA. 45 U.S.C. § 152 Seventh.

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members. See Pl.’s Mem. of Law in Opp’n to Def.’s MTD, and in Support of Pl.’s Mot.

for Sum. Judgment (“PI.’s MSJ”) [Dkt. #8-2] at 1-2. Both motions are now ripe and

resolved herein.

STANDARD OF REVIEW

Federal courts possess only limited jurisdiction. Kokkonen v. Guardian Life Ins.

Co. of Am., 511 U.S. 375, 377 (1994). When, as here, a party moves to dismiss under

Federal Rule of Civil Procedure 12(b)(1), the Court must “determine whether it has

subject matter jurisdiction in the first instance.” Taylor v. Clark, 821 F. Supp. 2d 370,

372 (D.D.C. 2011). Where the Court lacks jurisdiction, it is powerless to provide

plaintiff any relief. Bhd. of Maint. of Way Employes Div./IBT v. Nat. R.R. Passenger

Corp., 217F. Supp. 3d 249, 256 (D.D.C. 2016) (hereinafter “BMWED”).

Under Rule 12(b)(1), plaintiff bears the burden of proving the Court has

subject-matter jurisdiction. Biton v. Palestinian Interim Self-Gov’t Auth., 310 F. Supp. 2d

172, 176 (D.D.C. 2004). The Court must accept as true all well pleaded factual

allegations and draw all reasonable inferences in plaintiff's favor. Am. Farm Bureau v.

E.P.A., 121 F. Supp. 2d 84, 90 (D.D.C. 2000). But “the Court may give the plaintiff's

factual allegations closer scrutiny” than it would in assessing a motion under Rule

12(b)(6), and the Court may consider materials outside of the pleadings. Logan v. Dep’t

of Veteran Affairs, 357 F. Supp. 2d 149, 153 (D.D.C. 2004).

ANALYSIS

Congress has restricted the subject-matter jurisdiction of federal district courts to

hear claims under the RLA. See, e.g., 45 U.S.C. § 153 First (establishing the National

Railroad Adjustment Board (the “Board”) and channeling disputes over the interpretation

and application of railway labor agreements to arbitration before it). District courts retain

jurisdiction over so-called “major disputes” but lack the ability to hear “minor disputes”

in the first instance. BMWED, 217 F. Supp. 3d at 255. Thus, the principal question

before the Court is whether the parties’ contract dispute is “major” or “minor.”

The Supreme Court has adopted the major/minor distinction as a “shorthand

method [for] describing two classes of controvers[ies].” Conrail, 491 U.S. at 302. Major

disputes arise under Section 2 Seventh and Section 6 of the RLA. See 45 U.S.C § 152

Seventh and § 156. These involve “disputes over the formation of collective agreements

or efforts to secure them . . . not [the] assertion of rights claimed to have vested.in the

past.” Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723 (1945); see also Conrail, 491

U.S. at 303. Under the RLA, major disputes require a “lengthy process of bargaining and

mediation,” and federal courts have subject-matter jurisdiction to issue injunctions in

order to preserve the status quo pending completion of the necessary procedures.

Conrail, 491 U.S. at 303.

Minor disputes, by contrast, arise under Section 2 Sixth and Section 3 First (i) of

the RLA. 45 U.S.C. § 152 Sixth and § 153 First (i). These controversies “relate[].. . to

the meaning or proper application of a particular [contractual] provision with reference to

a specific situation or to an omitted case.” Conrail, 491 U.S. at 303 (quoting Burley, 325

U.S. at 723). The claim in minor disputes is “to rights accrued” not merely an argument

“to have new [rights] created for the future.” /d. (quoting Burley, 325 U.S. at 723).

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Under the RLA, such disputes are subject to compulsory and binding arbitration before

the Board, and federal courts lack subject-matter jurisdiction to hear the claim in the first

instance. See id. at 310 (holding “courts must defer to the arbitral jurisdiction of the

Board” to resolve minor disputes).

In Conrail, the Supreme Court elaborated on the distinction between major and

minor disputes by clarifying that,

[T]he line drawn in Burley looks to whether a claim has been made that the

terms of an existing agreement either establish or refute the presence of a

right to take the disputed action. The distinguishing feature of such a [minor]

case is that the dispute may be conclusively resolved by interpreting the

existing agreement.

Id. at 305 (internal citations omitted).

Thus, disputes focusing on contractual interpretation will generally constitute

minor disputes. But to avoid enabling one party to obtain mandatory binding arbitration

simply by framing a dispute as one of contractual interpretation, the Supreme Court has

held that a dispute is minor only where “the [contested] action is arguably justified by the

terms of the parties’ collective-bargaining agreement.” Jd. at 307. “Where, in contrast,

the employer’s claims are frivolous or obviously insubstantial, the dispute is major.” Id.

The employer bears a “relatively light burden” under this standard. Id. Indeed,

there is “a strong presumption in favor of finding a dispute to be minor” and if “doubt

arises about the classification of a dispute, the dispute is . .. considered to be minor.”

BMWED, 217 F. Supp. 3d at 256 (quoting Oakey v. U.S. Airways Pilots Disability

Income Plan, 839 F. Supp. 2d 225, 231 (D.D.C. 2012) and Bhd. of Maint. of Way Empls.

v. Burlington N. Santa Fe R.R., 270 F.3d 637, 639 (8th Cir. 2001)).

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To resolve the question of whether a dispute is major or minor, the Court must

analyze the parties’ contractual arguments to determine whether they are arguably

justified.? BMWED, 217 F. Supp. 3d at 258. In making this assessment, the Court relies

not only on the traditional tools of contract interpretation but may also consider other

sources such as the “practice, usage, and custom” of the parties and “the common law of

a particular industry.” Conrail, 491 U.S. at 311-12 (noting that a “collective bargaining

agreement is not an ordinary contract . . . [but] is a generalized code to govern a myriad

of cases which the draftsmen cannot wholly anticipate’).

Here, BMWED argues that the parties’ dispute is major because the terms of the

CBA reserve flagging work for BMWED-represented employees to the exclusion of

third-party vendors. Pl.’s MSJ at 13. Specifically, BMWED contends that because its

forces have historically “provided protection for workers and equipment on Amtrak track

and right of way .. . for Amtrak, and for contractors,” the Side Letter’ applies and

insulates all such work from being contracted out to other parties. Jd. In support,

BMWED provides declarations purporting to show “a consistent, longstanding practice”

dating back to 1979 of BMWED “perform[ing] flagging work even when other work is

contracted-out, and even when the work is not on the right of way and is at the behest of

3 In taking a “peek” at the merits, see BMWED, 217 F. Supp. 3d at 258, the Court remains mindful that

ultimate authority over contract interpretation in the context of railway labor disputes is reserved to the

Board. Air Line Pilots Ass’n, Int'l v. E. Air Lines, Inc., 869 F.2d 1518,1524 (D.C. Cir. 1989) (hereinafter

“ALPA’’) (“It is the role of the arbitrator, not the court, to choose between the parties’ interpretations of

the Agreement.”).

4 Both parties contend the Side Letter’s terms are relevant in interpreting the Scope Rule in the CBA.

PI.’s MSJ at 13; Def.’s MTD at 9. Accordingly, the Court treats the Side Letter as constituting part of the

parties’ agreement. See S.E. Pennsylvania Transp. Auth. v. Bhd. of R.R. Signalmen, 882 F.2d 778, 783

(3d Cir. 1989) (noting the permissibility of relying on side letter agreements in interpreting collective

bargaining agreements under the RLA).

entities other than Amtrak.” Jd. at 14; see also Sessa Decl.; Decl. of Jed Dodd (“Dodd

Decl.”) [Dkt. #8-4].

Amtrak, on the other hand, contends the dispute is minor because “‘it is at least

arguable that the Scope Clause does not apply when a flagging contractor is retained by a

third party to do work that is not for the benefit of Amtrak.” Def.’s MTD at 9. Amtrak

rejects BMWED’s interpretation of the Side Letter, arguing instead that, under the terms

of the Side Letter, work must have been historically performed exclusively by BMWED-

represented employees to be covered under the Scope Rule. Jd. Since that is not the case

here, Amtrak contends that it is at least arguable that the flagging work in question is not

reserved to BMWED forces. Jd.; see also Buck Decl.; Decl. of Andrew Keefe (“Keefe

Decl.”) [Dkt. #12-2].°

Additionally, Amtrak relies on numerous arbitration awards in which the Board

found that where work is not performed at the carrier’s instigation, under its control, at its

expense, or exclusively for its benefit, contracting out said work does not run afoul of the

applicable scope rule in other collective bargaining agreements. Def.’s MTD at 10. For

the following reasons, I agree with Amtrak that this is indeed a minor dispute.

1. The Parties’ Agreement

The text of the parties’ agreement favors Amtrak. The Scope Rule in the CBA

itself is silent regarding flagging work. Accordingly, both parties rely on the text of the

> Amtrak also points to the “for the Carrier” language in the Side Letter, contending that this excludes

work performed by third parties that is outside of Amtrak’s direction or control and is not for Amtrak’s

benefit from being covered under the Scope Rule. See Def.’s MTD at 10; Def.’s Reply in Support of

Motion to Dismiss (“Def.’s Reply”) [Dkt. #12] at 7-8.”

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Side Letter as controlling. Def.’s MTD at 9; Pl.’s MSJ at 13. The Side Letter expresses

Amtrak’s “intent to preserve work of the scope and magnitude historically performed by

members of BMWE for the Carrier as of Jan. 1, 1987, or prior thereto.” Compl. § 9.

This supports Amtrak’s proposed reading. How so?

It is at least arguable that the plain meaning of the term “historically performed”

requires work to have been performed exclusively by BMWED employees. See Def.’s

MTD at 9. Indeed, BMWED does not meaningfully oppose this interpretation as one

potential reading of the Side Letter.° Instead, it argues that its showing as to historical

practice is sufficient to obtain summary judgment. Pl.’s MSJ at 15—16 (contending

BMWED “has shown that its members, and not contractor forces, have provided flagging

for contractors working on or near the NEC right of way, including when contractors

were working for third parties”). But this ignores the fact dispute created by the parties’

dueling declarations as to who actually performed flagging work for third-parties along

the NEC in the past. Compare Buck Decl. § 14 (stating “BMWED employees have never

exclusively provided flagging for third parties”); and Keefe Decl. § 4—15 (rejecting

contention that BMWED exclusively performed flagging work on the NEC and providing

examples of other entities who provide flagging work); with Sessa Decl. J 9-10 (stating

that both prior to and after January 1, 1987, BMWED-represented employees performed

flagging work “for both Amtrak employees and contractor work forces”) and Dodd Decl.

4 5 (“During my entire tenure . . . flagging work on the Northeast Corridor . . . was

° BMWED does make generalized statements that the parties’ “agreement is not conditional, or

contingent.” Pl.’s MSJ at 14. To the extent these statements are intended to suggest that Amtrak’s

proposed interpretation is frivolous or obviously insubstantial, the Court disagrees.

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performed by BMWED represented employees, and not by contractor flaggers.”).

The Court need not, and should not, resolve this dispute here. See, e.g., Sheet

Metal Workers Int'l Ass’n v. Kan. City S. Ry., No. 09-00091, 2009 WL 3756440, at *4

(W.D. Mo. Nov. 9, 2009) (refusing to resolve factual issue regarding parties’ working

relationship in holding dispute was minor). It is enough to conclude that BMWED fails

to definitively show that it has exclusively performed the flagging work it claims is

reserved to its members. See Pl.’s Reply Mem. in Support of Pl.’s MSJ (“PI.’s Reply”)

[Dkt. #15] at 2-3; see also Second Decl. of Jed Dodd (“Second Dodd Decl.”) [Dkt. #15-

1].’

Because Amtrak presents a viable reading of the parties’ agreement and has

presented sufficient support to show it may, as a factual matter, prevail on its

interpretation, it’s contractual position can hardly be deemed “frivolous” or “obviously

insubstantial.” Conrail, 491 U.S. at 306; see also Sheet Metal Workers Int’l Ass’n, 2009

WL 3756440, at *3—4 (relying on sworn statements of carrier’s employees as to contested

factual issue in holding that dispute was minor under the RLA). Accordingly, the dispute

is minor.* See Bhd. of Maint. of Way Emps. Div., IBT v. BNSF Ry. Co., No. CIV 06-245

JCH/LFG, 2008 WL 5489360, at *7 (D.N.M. Sept. 17, 2008) (holding dispute over

7 To take one example, BMWED does not refute Amtrak’s assertion that Amtrak trained and permitted

Southeastern Pennsylvania Transportation Authority (“SEPTA”) employees to perform flagging work on

Amtrak property, including Amtrak property not leased to SEPTA. See Keefe Decl. J 6. In response,

BMWED simply states that “Amtrak has not shown that SEPTA employees actually performed flagging .

..and BMWED is not aware of any instance where employees of SEPTA performed flagging.” Pl.’s

Reply at 5. .

8 In making this determination, the Court reiterates that it is not resolving, or issuing any opinion on, the

merits of the parties’ dispute. ALPA, 869 F.2d at 1521.

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BMWED’s alleged right to perform certain maintenance of way work under the

applicable scope rule of the parties’ collective bargaining agreement was minor); see also

CSX Transp., Inc. v. TCTU, 480 F.3d 678, 684 (4th Cir. 2007) (holding disputes centering

on alleged violations of the scope rule in the parties’ agreement were “classic minor

disputes . . . because they relate to the interpretation of a collective bargaining

agreement”).?

2. Arbitral Precedent

Numerous arbitration awards further confirm the plausibility of Amtrak’s position.

When confronted with questions regarding the reach of various scope rules in collective

bargaining agreements between unions and other carriers under the RLA, arbitrators

routinely recognize “that the Carrier is generally not held liable for contracting out where

the work is totally unrelated to railroad operations, or where the work is undertaken at the

sole expense of the other party and is for the ultimate benefit of others, or where the

Carrier has no control over the work for reasons unrelated to having contracted out the

work.” Ex. C to the Second Decl. of Nikii L. McArthur (“Second McArthur Decl.”)

[Dkt. # 12-3] (BMWED vy. BNSF Railway Co., NRAB 3d Div., Awd. No. 35634 (2001));

see also Declaration of Nikii L. McArthur (“McArthur Decl.”) [Dkt. #4-3] (collecting

arbitration awards). That is, the Board has readily accepted the principle that Amtrak

now advocates for: “subcontracting not performed at the Carrier’s instigation, under its

° The Side Letter further supports Amtrak’s interpretation by plausibly preserving only work performed

“for the Carrier,” within the sweep of the Scope Clause. That is, under the plain meaning of the term “for

the Carrier” —which refers to Amtrak—the Side Letter could arguably be interpreted as not extending the

Scope Rule to any work done for entities other than Amtrak, such as flagging work performed for third

parties. See Def.’s Reply at 7.

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control, at its expense or for its exclusive benefit” is generally not covered under scope

rules in collective bargaining agreements. E.g., Ex. A to Second McArthur Decl.

(BMWED v. BNSF Railway Co., NRAB 3d Div., Awd. No. 40501 (2010)). This

precedent confirms Amtrak’s position is at least arguable.

As BMWED notes, the arbitration awards Amtrak relies on do not involve the

precise CBA at issue here. See Pl.’s MSJ at 23. Indeed, due to the brevity of the awards,

the precise contractual language at issue in each is omitted. See generally McArthur

Decl.; Second McArther Decl. As such, the Court is unaware of the exact degree of

similarity between the terms of the scope rules interpreted therein and those presently at

issue. This necessarily deprives the awards of some degree of persuasive power. But

BMWED confuses the Court’s task in suggesting that the awards are therefore irrelevant.

See Pl.’s MSJ at 18-19.

The Court need not decide whether the arbitration awards are so analogous to the

case before us that they control the merits of the contract dispute. See ALPA, 869 F.2d at

1523 (holding that for courts to issue a “view on the merits” would “usurp[] the role of

the arbitrator in interpreting and applying the contract”). I need only assess the

plausibility of Amtrak’s contractual argument and decide whether it veers so far off

course as to consist of mere frivolity. Conrail, 491 U.S. at 307. For this endeavor, a long

line of arbitral awards accepting the principle that now serves as the cornerstone of

Amtrak’s argument is surely persuasive, even if those awards involved “other carriers,

other agreements, and another union,” Pl.’s MSJ at 18. See Conrail, 491 U.S. at 310-11

(holding analysis of a collective bargaining agreement requires consideration of “the

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common law of a particular industry” and describing arbitrators on the Board as “experts

in the common law of the [] industry” (internal quotation marks and citations omitted));

Bhd. of Maint. of Way Emps. Div., 2008 WL 5489360, at *5, *7 (holding dispute minor in

part due to significant arbitral precedent supporting carrier’s proposed contractual

interpretation); cf Bhd. of Maint. of Way Emps. v. Atchison, Topeka & Santa Fe Ry. Co.,

138 F.3d 635, 641 (7th Cir. 1997) (stating courts must look to “parallel labor agreements,

even those involving other parties” in interpreting the terms of collective bargaining

agreements under the RLA).

In Brotherhood of Maintenance of Way Employes Division, IBT v. BNSF Railway

Co., for example, the court considered numerous arbitral awards in concluding that

defendant’s contractual argument was arguably justified and the dispute was therefore —

minor. 2008 WL 5489360, at *7. There, BMWED brought suit based on a similar

argument to the one presented here, namely that the scope rules of the parties’ collective

bargaining agreement required the defendant carrier to use BMWED-represented

employees to perform certain maintenance work “customarily and historically”

performed by BMWED employees. /d. at *2. The carrier countered that no such right

ensued under the agreement because the tracks over which BMWED claimed a right to

work had been sold to a third party. Jd. at *7. In concluding that the defendant carrier

had “plausible contractual justifications,” the court noted the “numerous arbitration

awards [that] stand for the principle that when a carrier no longer owns the property to be

maintained, maintenance and improvement work is not within the scope of rules

governing the relationship between the union and the carrier.” Jd. at *5.

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This reasoning is persuasive and applicable to the instant dispute. Amtrak

presents numerous arbitration awards recognizing the principle that work not performed

at the carrier’s instigation, under its control, at its expense, or for its benefit generally

falls outside the scope rule in collective bargaining agreements. Especially here, where

the contractual language is silent on the work in question, this precedent affirms the

plausibility of Amtrak’s position. Accordingly, the parties’ dispute is a minor one over

which the Court lacks jurisdiction.

CONCLUSION

For the foregoing reasons, the Court GRANTS defendant’s motion to dismiss,

DENIES plaintiff's motion for summary judgment, and DISMISSES the action in its

entirety. An Order consistent with this decision accompanies this Memorandum Opinion.

4

RICHARD J. et

United States District Judge

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