Petition for Writ of Certiorari — Brotherhood of Teamsters & Auto Truck Drivers Local 70 v. Western Pacific Railroad

- : ‘ Supreme Court, U.S,

g ” : 1 64 “EILED

| ' JUL 27 1987

No. JOSEPH F. SPANIOL, UR.

eK

IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1987

BROTHERHOOD OF TEAMSTERS AND AUTO TRUCK DRIVERS

LOCAL 70 OF ALAMEDA COUNTY;

DANIEL J. LYDON; and JON A. UNDEEN,

Petitioners,

Vs

WESTERN PACIFIC RAILROAD COMPANY,

WESTERN PACIFIC TRANSPORT COMPANY and

UNION PACIFIC CORPORATION,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVid A. ROSENFELD

(Counsel of Record)

VAN BourG, WEINBERG, ROGER

& ROSENFELD

875 Battery Street

San Francisco, California 94111

Teicvhone 415/864-4000

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

® ome sé 60

QUESTION PRESENTED

Where individuals who were employed by a trucking

company governed by the National Labor Relations Act

seek relief against a railroad entity, is their action sub-

ject to the provisions of the Railway Labor Act where

they do not perform services for that railroad?

(i)

TABLE OF CONTENTS

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REASONS FOR GRANTING THE WRIT ww... 6

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TABLE OF AUTHORITIES

CASES: Page

Airline Pilots Association v. United Airlines, Inc.,

802 F.2d 886 (7th Cir. 1986), cert. denied

CRITI D ccccecnscaticelbcdsnsreeennstinlabeseapenbntislietsniieiiiananmians 8

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

PUIIIED (42.2: ciedeclidcschasaseencdsasdaamessiansceanmneemennenncans 6

Atchison, Topeka and Santa Fe Railway Co. v.

Buell, 480 U.S. RE eee 6

Brotherhood of Railroad Truinmen v. Jacksonville |

Terminal Co., 394 U.S. 369 (1969)... 7 |

Burlington Northern v. Maintenance Employees, |

481 U.S. CN cts scanesnerns 6 |

Georgia-Pacific Corp., 220 N.L.R.B. 885 (1975)... 7-8 |

Kelly v. Southern Pacific Co., 419 U.S. 318 (1974). 10

Local 295, Teamsters, 255 N.L.R.B. 1091, 1092

RN i on.c, cobcarrase eisecapmabnniaacadiene canehiaainpesaanegamentnns 7

Nelson v. Piedmont Aviation, Inc., 750 F.2d 1234

I re cr a De elinaemiinatsaotnint 9 |

Pacific Motor Trucking Co., 132 N.L.R.B. No. 83 |

(1961) OEE GE DERI REO ATS ED AS RIO 7

Pan American World Airways v. United Brother- |

hood of Carpenters, 324 F.2d 217 (9th Cir.

ND sete pbdcedamaaon 9 |

Vaca v. Sipes, 386 U.S. 171 (1967) ne eeeeeeeee 6 |

Williams v. Caterpillar Tractor Co., 482 US. —- |

STATUTES:

28 U.S.C. § 1331 .... Mecscaaetendsaaneaua eas

28 U.S.C. § 1337 ...... eiiccmpinaneiad

29 U.S.C. § 101 ......

29 U.S.C. § 152 ..

45 U.S.C. § 141...

45 U.S.C. § 151, First .

LT a Bp RRS een enstee Aeeeamre ts *

Railway Labor Act, 45 U.S.C. § 151 et seq. ................ passim

@SUSA. 8 Bi ................ 9

4

4

6

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8

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No.

BROTHERHOOD OF TEAMSTERS AND AUTO TRUCK DRIVERS

LOCAL 70 OF ALAMEDA COUNTY;

DANIEL J. LYDON; and JON A. UNDEEN,

Petitioners,

Vv.

WESTERN PACIFIC RAILROAD COMPANY,

WESTERN PACIFIC TRANSPORT COMPANY and

UNION PACIFIC CORPORATION,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioners pray that a writ of certiorari issue to re-

view the judgment of the United States Court of Appeals

for the Ninth Circiut in Brotherhood of Teamsters and

Auto Truck Drivers Local No. 70, et al.. v. Western

Pacific Railroad Co., et al.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Cireuit is reported at 809 F.2d 607 and is

reprinted infra at App. la. The order of the United

States District Court for the Northern District of Cali-

fornia granting summary judgment is unreported and is

printed infra at App. 8a. The order of the Ninth Cir-

Le

2

cuit denying the petition for rehearing and suggestion

of hearing en banc is reprinted at App. 9a. A portion

of the “Transfer Agreement” which is the subject of this

litigation is reprinted at App. lla.

JURISDICTION

The judgment of the United States Court of Appeals

for the Ninth Circuit was entered on February 4, 1987.

A timely petition for rehearing and suggestion of hearing

en bane was denied on April 29, 1987. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS |

29 U.S.C. § 185(a) provides:

Suits for violation of contracts between an employer

and a labor organization representing employees in

an industry affecting commerce as defined in this

chapter, or between any such labor organizations,

may be brought in any district court of the United

States having jurisdiction of the parties, without

respect to the amount of controversy or without re-

gard to the citizenship of the parties.

45 U.S.C. § 151, Fifth:

The term “employee” as used herein includes every

person in the service of a carrier (subject to its con-

tinuing authority to supervise and direct the manner

of rendition of a service} who performs any work

defined as that of an employee or subordinate official

in the orders of the Interstate Commerce Commis-

sion now in effect...”

STATEMENT OF THE CASE

Petitioner Brotherhood of Teamsters and Auto Truck

Drivers (Local 70)' historically represented the employ-

1In addition to Local 70, the displaced employees were parties

to the litigation. Two of them, Jon Undeen and Daniel Lydon, are

a

3

ees who had performed trucking and ramping operaticus

at a railhead terminal in Oakland, California. Betve«

1967 and 1973 the ramping and trucking operation was

operated by a common carrier, Haslett Trucking. In 1973,

Western Pacific Transport Company, a subsidiary of

Western Pacific Railroad Company, took over those oper-

ations and adopted the collective bargaining agreement

which Haslett Trucking had entered into with Local 70.

In 1979 Western Pacific Transport Company negoti-

ated with the union an agreement whereby it split the

trucking from the ramping operation. The trucking op-

eration involved drayage of piggyback trailers in the

Oakland area. The ramping operation involved the re-

moval and placing of those trailers from railroad flat cars

of railroad flat cars. The company established a separate

subsidiary to perform the ramping and deramping opera-

tion while Western Pacific Transport continued to per-

form the drayage work. As a result of the splitting of

the work, Local 70 and Western Pacific entered into an

agreement known as the “Transfer Agreement”. App.

lla. The new subsidiary which was established to per-

form the ramping operation was named Feather River

intermudal Service Company (FRISCO). The Transfer

Agreement contains a critical paragraph which is the

basis of this litigation:

“The continued successor rights of FRISCO employ-

ees in the event the ramping and deramping work is

contracted out to another carrier shall be guaranteed

by the Western Pacific Railroad Company.” (App.

l3a)

parties to tkis petition although they are subsumed under the

references to Local 70. The other individuals who appealed to the

Ninth Circuit obtained separate counsel and did not join in the

petition for rehearing and suggestion of hearing en banc and have

not joined in this petition. Local 70, Mr. Lydon and Mr. Undeen

as well as the other petitioners are asserting their rights under

the Railway Labor Act by demanding a Board of Adjustment with

the railroad entities.

4

The parties to that Transfer Agreement were Local 70

and FRISCO, the subsidiary of Western Railroad. The

Transfer Agreement also states:

“Prior to the executing of this Agreement, the Em-

ployer agrees that it shall be submitted to the West-

ern Pacific Railroad Company for review and ap-

proval.” (App. lla)

As a result of this Transfer Agreement the separate

operat.ons began in the Spring of 1979 and some em-

ployees continued with the drayage operation (Western

Pacific Transport) while others moved to the ramping

operation. Shortly a totally unrelated entity known as

Reacon bought the ramping operation and continued the

business under the name of FRISCO. A successor agree-

ment was negotiated with Local 70 in 1982.

After the 1982 agreement was consummated, Western

Pacific Railroad merged into the Union Pacific Company

and that merged railroad began operating the ramping

operation. The Union Pacific decided, effective January

10, 1986, to utilize employees of its motor freight com-

pany, Union Pacific Motor Freight Company, to perform

the ramping work thus displacing the employees repre-

sented by Loca! 70. This litigation was triggered by the

January 10, 1986 displacement of the incumbent em-

ployees.

Local 70 brought this action in the District Court as-

serting jurisdiction upon 29 U.S.C. §185, 28 U.S.C.

$£ 1331 and 1337. The Union alleged the Transfer Agree-

ment which it sought to enforce was an agreement gov-

erned by the National Labor Relations Act and, thus, was

an agreement between “an employer and a labor organiza-

tion representing employees in an industry effecting com-

merce as defined in [29 U.S.C. § 152] .. .” When the

railroad entities responded, they conceded jurisdiction

citing 29 U.S.C. § 185.* The trial court granted summary

ae '

* They also stated: “New York Central Transport Co., 138 NLRB

131, . . . (1962) (company performing trucking work in connec-

5

judgment to the railroad defendants solely on the ground

that the intervening agreement negotiated in 1982 be-

tween Local 70 and Reacon, which was a wholly unrelated

to the railroad defendant, effectively nullified the Trans-

fer Agreement of 1979. Local 70’s argument that there

was bargaining history demonstrating that the parties

to the Reacon agreement had not intended to affect the

Transfer Agreement was ignored by the District Court

and Local 70 filed an appeal from the grant of summary

judgment. In the Ninth Circuit the primary issue was

whether the trial court properly granted summary judg-

ment. The Ninth Circuit agreed that summary judgment

was improper but held that this dispute was subject to

the provisions of the Railway Labor Act. The railroad

defendants had made such an argument in the Ninth Cir-

cuit seemingly contravening the position adopted initially

in the District Court.

The Court below held that this was a Railway Labor

Act dispute because “this case is essentially a Railway

Labor dispute between the railroad and certain of its

employees”.

The question presented to this Court is whether indi-

viduals who are employed by a trucking subsidiary at

the time the Transfer Agreement was negotiated which

they allege guarantees continuing employment is subject

to the Railway Labor Act where those individuals have

never performed “any work defined as that of an em-

ployee” of the railroad?

tion with “piggyback” operations comes within “trucking serv-

ices” exception to Railway Labor Act (the R.L.A.), 45 U.S.C.

§ 151 et seq., and is within the L.M.R.A.). See Judge Zirpoli’s

opinion in Calif. Trucking Ass'n v. Teamsters, 94 L.R.R.M. 2981,

2998 (N.D. Cal. 1977), aff'd in part, rvs’d in part on other grounds,

679 F.2d 1275 (9th Cir. 1981), cert. denied, 459 U.S. 970 (trucking

operations wholly owned by railroad not within R.L.A.)” (Memo-

randum of Points and Authorities, dated February 24, 1986, p. 3).

6

REASONS FOR GRANTING THE WRIT

1. This Court has had recent opportunity to draw the

jurisdictional distinctions between those claims which are

founded upon breaches of collective bargaining agree-

ments and state law claims. See, Williams v. Caterpillar

Tractor Co., 482 U.S. (1987) which embellishes upon

doctrines which reach back to at least Vaca v. Sipes, 386

U.S. 171 (1967). See also Allis-Chalmers Corp. v. Lueck,

471 U.S. 202 (1985). This Court has also had the oppor-

tunity to resolve a recent dispute over the applicability of

actions brought under the Federal Employers’ Liability

Act and those brought under the Railway Labor Act.

Atchison, Topeka and Santa Fe Railway Co. v. Buell,

480 U.S. (1987). This court recently had to accom-

modate the competing demands of the Railway Labor Act

and the Norris-LaGuardia Act, 29 U.S.C. § 101, et seq.

This Court found that the Norris-LaGuardia Act pre-

vailed. Burlington Northern v. Maintenance Employees,

481 U.S. (1987). This Court has not, however, had

the opportunity to determine when individuals become

employees within the meaning of the Railway Labor Act

as compared to employees of a National Labor Relations

Act employer and thus to delineate this boundary.

As corporate structures change in light of the increas-

ing number of buyouts, successorships and other cor-

porate reorganizations, those entities which are exclu-

sively Railway Labor Act carriers will diminish. Indeed,

most entities have combined operations subjecting them

to various regulation under both the National Labor

Relations Act and the Railway Labor Act.

2. The decision of the Court below held that these

employees who were displaced were Railway Labor Act

employees and, thus, their exclusive remedy for breach of

contract was through the arbitration provisions provided

for in the Railway Labor Act. We, of course, concede

that if they are governed by the Railway Labor Act, then

they must proceed through the appropriate Board of Ad-

7

justment and the District Court lacked jurisdiction.

Brotherhood of Railroad Trainmen v. Jacksonville Termi-

nal Co., 394 U.S. 369 (1969). The Court below had ex-

tended the provisions of the Railway Labor Act to those

individuals who are expressly encompassed within the

National Labor Relations Act solely because they assert

relief against a railroad employer. Let us be clear on

this question. Local 70 claims that the Transfer Agree-

ment guaranteed the continued employment of the indi-

viduals working at the ramping and deramping operation.

The union’s point was that in return for agreeing to the

Transfer Agreement which permitted the splitting of the

seniority lists, the employing entities and the railroad

guaranteed the continuing employment of the individuals.

Thus, these employees who were plainly governed by the

National Labor Relations Act sought relief against the

railroad which relief could have taken various forms:

(1) Back and front pay; (2) The hiring of a subcon-

tractor who would employ the displaced individuals; (3)

The hiring by the Union Pacifie’s trucking subsidiary of

the individuals to perform the ramping operation; or (4)

The employment directly by the railroad of the individ-

uals to perform the ramping operation.* It is undisputed

that the employees performing the ramping as well as

the trucking operations were not employees subject to the

Railway Labor Act but were subject to the National

Labor Relations Act. Indeed, there is a long line of Labor

Board cases asserting jurisdiction over identical employ-

ers. See, Pacific Motor Trucking Co., 182 N.L.R.B. No.

83 (1961) and Local 295, Teamsters, 255 N.L.R.B. 1091,

1092 (1981). Cf. Georgia-Pacific Corp., 220 N.L.R.B.

3Tt is because the union suggested this fourth form of relief

which would have made the individuals employees of the railroad

that the Court below implicated the Railway Labor Act. The

form of relief does not govern the nature of the action and peti-

tioner will abandon this form of relief in preference to the other

three possible forms in order to establish jurisdiction under 29

U.S.C. § 185.

8

885 (1975) (when R.L.A. subsidiary is acquired by

N.L.R.A. entity, R.L.A. applies). It seems entirely

anomalous that employees who work for an employer

governed by the National Labor Relations Act are pre-

cluded from seeking relief against a railroad which they

assert became bound to a collective bargaining agreement

by guaranteeing their continued jobs.

The analysis of the Court below concludes that where

there is any allegation against the railroad, the Railway

Labor Act is necessarily implicated. The Court held that

it was “necessary to lock at the substance of the dispute

... [and viewing it] found this perspective, this case is

essentially a Railway Labor dispute between the railroad

and certain of its employees”. (App. p. 5a.) The Court’s

rationale is directly at odds with other Courts of Appeal

which have focused upon the statutory language of 45

U.S.C. § 151, Fifth, to determine whether the statutory

definition of employee “who performs any work defined

as that of an employee...” occurs. The question is not,

as the Court below believed, whether the dispute is be-

tween a railroad and its alleged employees but, rather,

whether the individuals are actually performing work for

the carrier whose labor relations are subject to resolution

by the Railway Labor Act.

The decision of the Court below squarely conflicts with

the recent decision of the Seventh Circuit in Azrline

Pilots Association v. United Airlines, Inc., 802 F.2d 886

(7th Cir. 1986), cert. denied US. (1987). In

that case certain individuals known as the “group of 500”

asserted a claim against United Airlines on the theory

that as “trainees” they became employees thus subject

to regulation by the Railway Labor Act. The Seventh

Circuit rejected this contention and concluded “that un-

less a person has performed services for the [railroad]

employer under that employer’s supervision he is not an

employee for purposes of the R.L.A.” Zd. at 913. (Foot-

note omitted.) The Fourth Circuit used exactly the same

9

rationale in Nelson v. Piedmont Aviation, Inc., 750 F.2d

1234 (4th Cir. 1984), cert. denied, 471 U.S. 1116 (1985)

where the Court held that an applicant for a job is not

an employee under the R.L.A. and, therefore, not en-

titled to base its claim upon its provisions.

The opinion of the Court below thus conflicts with the

decision of the Seventh and Fourth Circuits which have

interpreted the Railway Labor Act to require that work

actually be performed before an individual creates the

employee-employer relationship which the statute envi-

sions. Indeed, we thought that the Ninth Circuit’s earlier

decision in Pan American. World Airways v. United

Brotherhood of Carpenters, 324 F.2d 217 (9th Cir. 1963),

cert. denied, 376 U.S. 964 (1964) is consistent with the

approach of the other Circuits. In that case Pan Ameri-

can operated a facility in Nevada which was established

for the purpose of nuclear research. The Ninth Circuit

concluded that the provisions of the Railway Labor Act

were not applicable even though Pan American was an

air transportation carrier generally regulated by the

Railway Labor Act because the activities were not trans-

portation related. Thus, these cases hold that the provi-

sions of the Railway Labor Act expressly apply only to

those employees of “carriers” as defined in 45 U.S.C.

$ 151, First.

Only the Court below in this recent opinion has ex-

panded the definition of “carrier” and “employee” to en-

compass a claim against a railroad even though the indi-

viduals involved have not performed any work performed

any work for the railroad.

3. By expanding the definition of “employee” beyond

the metes and bounds of § 151, Fifth, the Court below

invites a square conflict with other legislation designed to

regulate railway employment. For example, the decision

would now suggest that the employees represented by

Local 70 are covered by the Railroad Retirement Act 45

U.S.C. § 231, et seg. and the Federal Employers’ Liabil-

10

ity Act. 45 U.S.C. 151 et seg. Cf. Kelly v. Southern

Pacific Co., 419 U.S. 318 (1974). We think this court

has made it clear that one has to examine the statutory

language to determine the applicability of those statutes

rather than determine, as the Court below did, simply

whether the defendant is a railway operator.

4. It is apparent that the decision of the Court below

is at odds with common sense. The employees were all

employed by an entity which all parties conceded was

subject to the jurisdiction of the National Labor Rela-

tions Act. The “Transfer Agreement” was a guarantee

by the railroad that it would continue to use subcontrac-

tors (either subsidiaries or independent contractors) who

would continue to employ the individuals involved. When

that guarantee was breached, relief was sought against

the parent corporations which turned out also to be rail-

roads. For the purposes of this Petition, however, what

requires this Court to grant a hearing is that the Court

below has created such an expansive definition of Railway

Labor Act “employee” that the mere assertion of a dis-

pute with a Railway Labor Act carrier will now trigger

the provisions of the Railway Labor Act. This is at odds

with the Fourth and Seventh Circuits which have had

occasion recently to consider the narrowly drafted lan-

guage defining an employee under the Railway Labor Act.

In order to resolve this conflict between the circuits as

to the statutory language and to avoid an unwarranted

expansion of the law which would bring many individuals

employed by railway subsidiaries under the Railway

Labor Act and other railway legislation, this Court should

grant this Petition for a Writ of Certiorari.

11

CONCLUSION

For the reasons set forth above, the Petition for Writ

of Certiorari should be granted.

Respectfully submitted,

DAvipD A. ROSENFELD

(Counsel of Record)

VAN BourG, WEINBERG, ROGER

& ROSENFELD

875 Battery Street

San Francisco, California 94111

Telephone 415/864-4000

APPENDIX

la

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 86-1810

D.C. No. 86-0364WWS

ORDER AND AMENDED OPINION

BROTHERHOOD OF TEAMSTERS AND AUTO TRUCK DRIVERS

LOcAL No. 70 oF ALAMEDA COUNTY, CAPP, ROBERT L.;

HALLIDAY, JOHN P. JR.; LEWIS, HOWARD S.; ORMAN,

KENNETH E.; TAMBORSKI, JOHN W.; DERRICK, ROBERT

L.; HEDGE, RICHARD M.; LYDON, DANIEL J.; PRATT,

WILLIAM H. Jr.; TREJO, AUGUST; DICHERICO, JEFF;

HOSTNICK, DONALD D.; MORGAN, BILL D.; SCHILLING,

BARRY M.; UNDEEN, JON A.; DICHERICO, VINCENT T.;

HOWARD, JAMES E.; MORGAN, LESLIE T. and SWINEY,

TRUMAN,

Plaintiffs-Appellants,

V.

WESTERN PACIFIC RAILROAD COMPANY,

WESTERN PACIFIC TRANSPORT COMPANY and

UNION PACIFIC CORPORATION,

Defendants-Appeilees.

Argued and Submitted

November 14, 1986—San Francisco, California

Filed February 4, 1987

Amended April 21, 1987

2a

Before: Anthony M. Kennedy and Robert Boochever,

Circuit Judges, and Albert Lee Stephens, J.,*

District Judge.

Opinion by Judge Stephens

Appeal from the United States District Court

for the Northern District of California

William W. Schwarzer, District Judge, Presiding

OPINION

STEPHENS, Senior District Judge:

The individual plaintiffs and their union allege that

the defendants are obligated to provide lifetime employ-

ment to the individual plaintiffs pursuant to a provision

in a collective bargaining agreement. The district court

denied plaintiffs’ motion for a preliminary injunction and

granted sumary judgment in favor of defendants. This

court concludes that the judgment should be vacated due

to a lack of subject matter jurisdiction.

Prior to its merger with Union Pacific Railroad Com-

pany (Union Pacific), Western Pacific Railroad Company

(Western Pacific) maintained a ramp facility in Oakland

where ramping and trucking operations were performed.

The ramping work involved the loading and unloading of

truck-trailers onto and from railroad flatears. The truck-

ing operations involved delivery of the trailers to and

from locations in the Bay Area.

From 1973 to 1979, Western Pacific Transport Com-

pany (Transport), a subsidiary of Western Pacific, per-

formed both the ramping and trucking work at the facil-

ity. It employed members of the Teamsters Local No. 70

* Honorable Albert Lee Stephens, Jr., Senior United States Dis-

trict Judge, Central District of California, sitting by designation.

3a

and had a collective bargaining agreement with the union

which represented and bargained on behalf of the named

individual plaintiffs. In 1979, Western Pacific created a

new subsidiary named the Feather River Intermodal Serv-

ices Company (FRISCO) to perform the loading and un-

loading work at the facility. Transport continued to per-

form the trucking work.

When FRISCO was formed, Local No. 70 negotiated a

“Transfer Agreement” with Transport and FRISCO

which provided for the transfer of certain Transport em-

ployees, with their seniority rights intact, to FRISCO.

The agreement included the following paragraph (here-

inafter the “successor rights provision”), which is the

basis of this litigation: “The continued successor rights

of F.R.1.S.C.0. employees in the event the ramping and

deramping work is contracted out to another carrier shall

be guaranteed by the Western Pacific Railroad Company.”

After the execution of the Transfer Agreement, the

individual plaintiffs were transferred from the payroll of

Transport to the payroll of FRISCO and continued to

perform the loading and unloading work as they had for

Transport. FRISCO agreed to be bound by the same col-

lective bargaining agreement in effect between Local No.

70 and Transport, and the Transfer Agreement was

formally incorporated into a rider to the FRISCO-Local

No. 70 collective bargaining agreement.

One year later in 1980, Western Pacific sold FRISCO

to an unrelated Chicago comapny called Reacon. Reacon

continued performing the same work that FRISCO had

and retained the name FRISCO for its operations. It

also accepted the existing agreement in effect between

FRISCO and Local No. 70. When that agreement ex-

pired in 1982. Reacon and Local No. 70 negotiated a new

and substantially modified three-year contract. In the

course of the negotiations. Reacon refused to agree to

the language in the Transfer Agreement regarding suc-

4a

cessor rights. Consequently, the resulting agreement did

not contain the successor rights provision. For clarity

in this regard, the new agreement expressly stated that

all previous agreements were void and superseded.

During the period when Reacon operated FRISCO,

Western Pacific merged with Union Pacific. When the

1982 agreement between Western Pacific and Reacon

regarding the ramping operations expired in 1985 it was

not renewed. Instead, Union Pacific hired Union Pacific

Motor Freight Company to perform the loading and un-

loading. In January 1986, Union Pacific Motor Freight

replaced the individual plaintiffs with its own employees.

Local No. 70 and the individual plaintiffs filed suit

alleging that the successor rights provision in the Trans-

fer Agreement was, in effect, a guarantee of lifetime em-

ployment to the individual plaintiffs by Western Pacific

and that Union Pacific assumed this obligation by virtue

of the merger. The plaintiffs also filed a motion for a

preliminary injunction seeking their immediate reinstate-

ment to their former jobs. The defendants opposed the

motion and filed a motion for summary judgment alleg-

ing that there was no obligation or agreement in exist-

ence between the parties. The district court denied the

motion for a preliminary injunction and granted sum-

mary judgment in favor of the defendants. The court

ruled that the plaintiffs had abandoned their rights under

the successor rights provision at the bargaining table with

Reacon in 1982. The plaintiffs then filed a timely appeal.

The issue on appeal is whether the successor rights

provision is a guarantee of lifetime employment by West-

ern Pacific that survived the expiration of the collective

bargaining agreement in which it was contained. The

plaintiffs argue that it was the contracting parties’ intent

to have the provision survive the agreement’s expiration.

The defendants argue that Western Pacific never guaran-

teed the successor rights and that the provision, along

5a

with the agreement as a whole, was superseded and

voided by the plaintiffs’ agreement with Reacon.

A jurisdictional issue must be addressed before pro-

ceeding to the merits. The plaintiffs contend that the

district court had jurisdiction over this case pursuant to

Section 301(a) of the Labor Management Relations Act,

29 U.S.C. sec. 185(a). However, the plaintiffs made it

clear that this is a suit to enforce disputed obligations

against the railroad defendants. See, e.g., Plaintiffs-

Appellants Excerpt of Record Exhibit No. 14." Railway

labor disputes between railroads and their alleged em-

ployees fall within the scope of the Railway Labor Act,

45 U.S.C. sees. 151-188, and federal courts may not exer-

cise jurisdiction over such disputes pursuant to Section

301(a). Brotherhood of Railroad Trainmen v. Jackson-

ville Terminal Co., 394 U.S. 369, 376 (1979).

Plaintiffs argue that the Railway Labor Act does not

apply because one of the defendants, Transport, is not a

railroad. However, it is necessary to look at the sub-

stance of the dispute. E.g., id.; Pan American World

Airways v. United Brotherhood of Carpenters, 324 F.2d

217 (9th Cir. 1963), cert. denied, 376 U.S. 964 (1964).

Viewed from this perspective, this case is essentially a

railway labor dispute between the railroad and certain

of its employees. This dispute arises out of a labor

agreement negotiated by a labor union on behalf of cer-

tain of its members and requires interpretation of the

labor agreement.

1 Exhibit No. 14 is plaintiffs’ Concluding Memorandum in Sup-

port of Motion for Preliminary Injunction And In Opposition To

Motion For Summary Judgment. In it, plaintiffs state: “We seek

relief from the railroad, which guaranteed the employment of

these individuals. If the Court grants the injunction, the railroad

wlil be required to hire the plaintiffs to perform the work, either

directly or through another subcontractor.”

6a

When a railway labor dispute involves the interpreta-

tion of a collective bargaining agreement, the Railway

Labor Act requires that it be submitted to arbitration:

the federal courts do not have jurisdiction to resolve the

dispute. International Ass’n of Machinists v. Aloha Atr-

lines, 776 F.2d 812, 815 (9th Cir. 1985); Fechtelkotter

v. Air Line Pilots Ass’n Int'l. 693 F.2d 899 (9th Cir.

1982).2 Congress designed the Act to leave the resolu-

tion of many types of railroad labor disputes to the

machinery of arbitration, mediation, and bargaining.

Klemens v. Air Line Pilots Ass’n Int’l, 736 F.2d 491,

497 (9th Cir. 1984); e.9., Crusos v. United Transp.

Union, Local 1201, 786 F.2d 970 (9th Cir. 1986). The

Act reflects strong policies in favor of arbitration and

against judicial intervention. Feehtelkotter, 693 F.2d

at 901.

The defendants argue that there is no agreement bind-

ing the parties. Their position could lead to the conclu-

sion that no interpretation of an agreement is involved

because there is no agreement at all and that federal

court jurisdiction is therefore proper. E.g., Goclowski v.

Penn. Central Transp. Co., 571 F.2d 747 756 (8rd Cir.

1977). However, Switchmen’s Union of North America

v. Southern Pacific Co., 398 F.2d 448, 447 (9th Cir.

1968), held that “where the position of one or both of

the parties is expressly and arguably predicated on the

terms of the agreement,” the suit involves the interpre-

tation of an agreement and must be submitted to arbi-

tration. The plaintiffs have expressly predicated this

action upon the terms of the agreement. See, ¢.g.,

Brotherhood of Railway Carmen v. Pacific Fruit Express

Co., 651 F.2d 651, 652 (9th Cir. 1981) (court followed

Switchmen’s Union and held that if agreement is “argu-

2Such a dispute is termed a “minor” one for purposes of the

Act. See Aloha Airlines, 776 F.2d at 815 (explaining the distinc-

tion between a “minor” and “major” dispute).

74a

ably susceptible” to party’s construction it must be sub-

mitted to arbitration pursuant to the Act).

The district judge’s view of the merits is understand-

able. However, the federal courts are not the proper

forum to resolve this dispute. The grant of summary

judgment in favor of defendants is vacated and the case

is remanded to the district court which should dismiss

the case for lack of subject matter jurisdiction.

8a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

No. C 86 0364 WWS

BROTHERHOOD OF TEAMSTERS AND AUTO TRUCK DRIVERS

LocaAL No. 70 oF ALAMEDA COUNTY, et al.,

Plaintiffs,

vs.

WESTERN PACIFIC RAILROAD COMPANY,

WESTERN PACIFIC TRANSPORT COMPANY and

UNION PACIFIC CORPORATION,

Defendants.

{Filed Mar. 7, 1986]

ORDER GRANTING DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

Defendants’ related and counter-motion for summary

judgment having come on for hearing before me and

consolidated with the hearing on plaintiffs’ application

for preliminary injunction and having considered the

papers submitted in support of the motion and in oppo-

sition thereto and argument of counsel and good cause

appearing,

IT IS HEREBY ORDERED that defendants’ motion

be and the same hereby is GRANTED.

DATED: March 7, 1986.

/s/ William W. Schwarze

United States District Judge

9a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 86-1810

D.C. No. 86-0364WWS

BROTHERHOOD OF TEAMSTERS AND AUTO TRUCK DRIVERS

LocAL No. 70 OF ALAMEDA COUNTY, et al.,

Plaintiffs-A ppellants,

VS.

WESTERN PACIFIC RAILROAD COMPANY, et al.,

Defendants-A ppellees.

[Filed Apr. 29, 1987]

Appeal from the United States District Court

for the Northern District of California

ORDER

Before: KENNEDY and BOOCHEVER, Circuit Judges,

and STEPHENS,* District Judges.

The panel as constituted in the above case has voted

to deny the petition for rehearing. Judges Kennedy and

Boochever have voted to reject the suggestion for re-

* Honorable Albert Lee Stephens, Jr., Senior United States Dis-

trict Judge for the Central District of California, sitting by

designation.

10a

hearing en bane, and Judge Stephens recommends re-

jection of the suggestion for a rehearing en banc.

The full court has been advised of the suggestion for

en bane hearing, and no judge of the court has re-

quested a vote on the suggestion for rehearing en banc.

Fed. R. App. P. 35(b).

The petition for rehearing is denied, and the sugges-

tion for a rehearing en banc is rejected.

lla

AGREEMENT

Between

Western Pacific Transport Company

and

Teamsters Local No. 70

THIS AGREEMENT is entered into by and be-

tween WESTERN PACIFIC TRANSPORT COMPANY

(W.P.T. Company) and TEAMSTERS LOCAI, 70 rela-

tive to the establishment of a new company to take over

the ramping and deramping operations presently per-

formed by Western Pacific Transport Company. Such

new company FEATHER RIVER INTERMODAL

SERVICES COMPANY (hereafter referred to as

F.R.1.8.C.0., and shall likewise become a party to this

Agreement upon its execution. Prior to executing this

Agreement, the Employer agrees that it shall be sub-

mitted to the Western Pacific Railroad Company for re-

view and approval.

IT IS FURTHER AGREED THAT:

ARTICLE I. Prior to the expiration of W.P.T. Com-

pany’s agreement, all its present employees working

under the Local #70 Agreement shall be offered the

opportunity in accordance with their seniority to trans-

fer to F.R.I.S.C.O. with their seniority and all other con-

tract rights unimpaired. Job selection (bidding) oppor-

tunities shall be accomplished at the time of the transfer

and shall be awarded on the basis of seniority. Em-

ployees not electing to transfer to F.R.I.S.C.O. at the

point of offering shall be passed and may then only lay

claim to transfer rights with full seniority on any re-

maining jobs after all other employees have been asked.

Sixty days after the initial transfer of employees the

Employer shall make a final offering of transfer with

12a

full seniority rights to cover any unfilled vacancies.

Transferring empioyees shall carry with them their full

seniority, but shall not be permitted to displace pre-

viously transferred employees from their bids. Positions

unfilled at the conclusion of this period shall be filled by

new hires. During this sixty day period, however, four

(4) of the transferring employees may be permitted to

return to W.P.T. Company with their seniority rights

unimpaired only if the Employer alters its cperation in

a manner to cause the abolishment of a Piggy-Packer

crew.

All future permanent job opportunities unfilled by

F.R.I.8S.C.0. employees shall be offered to W.P.T. Com-

pany employees limited to those hired by May 1, 1979.

They shall, however, transfer over as new hires and

shall retain seniority rights only for purposes to bene-

fits (e.g. vacation accrual).

A permanent job opportunity shall be determined

either by attrition of the F.R.I.S.C.O. seniority roster or

the excessive and continuous use of casuals during other

than peak vacation periods.

When F.R.I.S.C.0. requests casual employees from the

Local # 70 Hiring Hall, they shall first place a request

for any W.P.T. laid off employees, who shall be entitled

to preferential dispatch rights, but will however be rec-

ognized for all other intents and purposes as a casual

employee. W.P.T. Company shall grant similar recipro-

cal rights to F.R.I.8.C.0O. laid off employees.

In the event the Employer establishes a new piggy-

back ramp facility in Northern California outside the

territorial jurisdiction of Teamsters Local 70, job oppor-

tunities not filled by any displaced employees shall be

offered to FR.I.S.C.0. or W.P.T. Company employees

into their respective work classification in accordance

with their seniority.

13a

The continued successor rights of F.R.I.S8.C.0. em-

ployees in the event the ramping and deramping work

is contracted out to another carrier shall be guaranteed

by the Western Pacific Railroad Company.

Except as provided for in the use of casuals; transfer

and successor rights at F.R.I.8.C.O. are red-circled for

those W.P.T. Company employees hired prior to May 1,

1979 only.

[Articles 2, 3 and 4 deleted]

TEAMSTERS LOCAL 70

{Signatures Deleted]

WESTERN PACIFIC TRANSPORT COMPANY

[Signature deleted ]

FEATHER RIVER TRANSPORT SERVICE COMPANY

{Signature deleted ]

[Dated 4-16-79]