National Association of Railroad
Referees
2014 Annual Meeting
Chicago, Illinois
Legal Developments
Affecting Railroads
Robert S. Hawkins
1290 Avenue of the Americas, 30th Floor
New York, NY 10104
Interplay Between
Arbitration and Judicial Proceedings
Grimes v. BNSF Railway Company, 743
F.3d 114 (5th Cir. 2014)
 Employee charged with dishonesty in
connection with an accident.
 Public Law Board concludes that the
employee was dishonest, but reinstates
him without back pay.
Interplay Between
Arbitration and Judicial Proceedings
 Employee also sues under the Federal
Railroad Safety Act (“FRSA”).
 District court gives preclusive effect to
arbitrator’s award and grants BNSF
summary judgment.
Interplay Between
Arbitration and Judicial Proceedings
Held:
 Collateral estoppel was “inappropriate
because the procedures of the PLB did
not afford Grimes the basic procedural
protections of a judicial forum.”
Interplay Between
Arbitration and Judicial Proceedings
 Key factors:
– Investigation and hearings conducted by the
carrier.
– Carrier official was the decision maker.
– Arbitrator reviewed only the record compiled
by the carrier.
– Employee not represented by counsel.
– Rules of evidence not applied.
Interplay Between
Arbitration and Judicial Proceedings
 Court also held that the FRSA’s “election
of remedies” provision did not bar an
FRSA lawsuit following the arbitration
award.
– Under the FRSA, a plaintiff cannot seek
protection under both FRSA and “another
provision of law for the same allegedly
unlawful act.”
Interplay Between
Arbitration and Judicial Proceedings
– Court rejects the argument that a claim under
a CBA is a claim to enforce a right under the
RLA.
– The CBA, and not RLA is not the source of
the right sought to be vindicated in the FRSA
proceeding.
– The RLA is “entirely agnostic” as to the
contents of the CBA.
 Same result reached in Reed v. Norfolk
Southern Railway Company, 740 F.3d
420 (7th Cir. 2014)
Disciplinary Investigations
Brotherhood Maintenance of Way
Employees Division v. Norfolk Southern
Railway Co., 745 F.3d 808 (7th Cir. 2014).
 Organization brought suit seeking a
permanent injunction against the use of
accident reconstruction reports in
disciplinary procedures.
Disciplinary Investigations
 Organization sought an order requiring the
carrier to:
– Disclose and provide copies of reports
before the on-property investigation,
– Present experts for cross-examination,
– Give the Organization time to hire its own
experts,
– Qualify experts under standards
applicable to federal court proceedings.
Disciplinary Investigations
 Seventh Circuit affirms district court ruling
that the dispute over disciplinary
procedures is “minor” and subject to
arbitration.
– The dispute arose out of the interpretation
of a contractual disciplinary procedure.
– The contract did not address pre-hearing
discovery or the admissibility of hearsay.
Disciplinary Investigations
– The contract did not address pre-hearing
discovery or the admissibility of hearsay.
– The Organization itself had used an
affidavit from a non-testifying witness
during the appeal of one of the cases.
– In previous cases (primarily drug testing)
other railroad referees had previously
considered reports from non-testifying
witnesses.
Inward-Facing Video Cameras
 Kansas City Southern Railway Co. v.
Brotherhood of Locomotive Engineers
and Trainmen, C.A. No. 13-838 (W.D. La.
2013)
 KCS installed two inward-facing cameras
in all of its locomotives.
 Possible use in disciplinary proceedings.
 No prior notice or bargaining with the
Organization.
Inward-Facing Video Cameras
 BLET takes the position that the dispute is
“major.”
 KCS files a declaratory judgment action.
 District court rules that the dispute is
“minor.”
Inward-Facing Video Cameras
 Interesting discussion of the “reserved
rights” doctrine.
– Some decisions not subject to negotiation.
(E.g. Sale of business, pricing of service)
– Other decisions are left to carrier discretion
because the contract does not prohibit
unilateral action.
– Court does not weigh in on the “reserved
rights” doctrine because it finds other support
for the carrier’s position:
Inward-Facing Video Cameras
 Use of stationary surveillance cameras in yards and
other locations;
 Inward-facing cameras in crew vans;
 Procedures for monitoring and recording phone
calls;
 Legitimate carrier interest in enforcing rules against
use of cell phones and other personal
communication devices.
Inward-Facing Video Cameras
 UP and Soo Line filed similar lawsuits,
which were later dismissed because the
dispute is being treated as “minor.”
Use of Supervisors to Operate Trains
 Wheeling & Lake Erie Railway Co. v.
BLET, 5:13cv2105 (N.D. Ohio, 2013)
 Dispute concerning the carrier’s use of
supervisors to operate trains when
engineers or trainmen were unavailable
due to hours-of-service restrictions.
 The Engineers’ agreement provided, in
part:
Use of Supervisors to Operate Trains
 The Organization "is agreeable to Carrier
officials and management providing
service, without restriction, when the
Carrier deems that reasonable attempts …
are complied with, to acquire manpower
are exhausted and the service is related to
an emergency or is incidental or
performed to expedite service.”
The Trainmen agreement provided, in
part:
 “The crew consist of all assignments
(regular or extra) shall consist of not less
than one (1) conductor and one (1)
brakeman, except as otherwise provided
for under paragraph (ii) hereof.”
 No similar relating to carrier officials
performing service.
Court rules that the dispute is “minor.”
 As to the Engineer agreement, the court
found “room for reasonable debate” as to
whether the carrier properly exercised its
discretion when assigning supervisors.
As to the Conductor/Trainmen
agreement, the court relied on:
 The purpose of the RLA is to prevent
interruptions to service.
 Organization was “unable to explain what
should occur to avoid interruption of
service in the event that a conductor is not
available.”
 Carrier was actively trying to recruit.
 Business needs fluctuate.
As to the Conductor/Trainmen
agreement, the court relied on:
 Hours-of-service restrictions have
increased.
 “[N]ot feasible to conclude that [the
Carrier] has no discretion when no
conductor is available.”
 Case appealed to Sixth Circuit.
 Oral argument scheduled for October
2014.
Commuter Rail Emergency Boards
 The Railway Labor Act contains special
provisions for commuter rail operations.
 As a result of these special provisions, 34
of the 55 emergency boards created since
January 1980 have involved commuter
railroads and their employees.
Commuter Rail Emergency Boards
 Section 9a of the RLA provides for two
Emergency Boards.
 Creation of the Emergency Boards is
mandatory upon a proper request.
 The first Emergency Board functions just
like a Section 10 Board.
Commuter Rail Emergency Boards
 The second Emergency Board is "baseball
style."
 Board recommends the "most reasonable
offer."
Commuter Rail Emergency Boards
 In 2014, Emergency Boards have been
established for the Long Island Railroad
and the Southeastern Pennsylvania
Transportation Authority.
 The LIRR Board was a "second"
Emergency Board.
 The SEPTA Board was a "first"
Emergency Board.
Commuter Rail Emergency Boards
Common Issues:
 Pattern bargaining
 Definition of the pattern
 Identification of the relevant pattern
 Deviations from the pattern
 Reasonableness of final offers
 Ability to pay
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