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Brotherhood of Maintenance of Way Employees Division/IBT v. Union Pacific Railroad Company

United States District Court, D. Nebraska

October 12, 2018




         This case presents a question regarding the arbitrability of a dispute between a railroad and one of its employees' unions. The matter is before the Court on the railroad's motion to dismiss (filing 51) and the union's motion for summary judgment (filing 46). For the following reasons, the Court will grant the motion to dismiss and deny the motion for summary judgment.


         This dispute involves the purchase and installation of pre-manufactured rail ties and track panels near Chausse, Idaho. See filing 47-1 at 9. The plaintiff, Brotherhood of Maintenance of Way Employes Division (the Brotherhood), is a labor union representing employees of the defendant, Union Pacific Railroad. See filing 40 at 2. The Brotherhood and Union Pacific are parties to several labor agreements, two of which are particularly important for purposes of this suit: (1) the February 7, 1965 Agreement and (2) the 2001 Collective Bargaining Agreement (CBA). Filing 40 at 8-9.

         The first agreement, the February 7th Agreement, is an industry-wide CBA between the Brotherhood and several rail carriers, including Union Pacific. Filing 40 at 6; see also filing 47-1 at 5. As part of that agreement, the Brotherhood promised Union Pacific that it could "make technological, operation, and organizational changes" to its rail systems so long as the Brotherhood received "at least 60 days' . . . written notice" of the change. Filing 40 at 6; filing 47-2 at 67. And Union Pacific, for its part, agreed to provide more lucrative and protective benefits to the Brotherhood's membership. See filing 47-2 at 68-69.

         The second agreement, the 2001 CBA, also governs the terms and conditions of employment for the Brotherhood's members. See filing 40 at 3. Among other things, work relating to the construction and maintenance of Union Pacific's tracks, including "rail laying, tie renewals, ballasting, surfacing and lining track, [and the] fabrication of track panels . . .," is reserved for employees represented by the Brotherhood, pursuant to Rule 9 of the 2001 CBA. Filing 47-1 at 16.

         It is against that backdrop that this litigation ensued. In February 2017, Union Pacific notified the Brotherhood that it would begin using robotics technology, rather than employees, to perform fabrication work. Filing 47-2 at 86. Specifically, Union Pacific advised the Brotherhood that "technology is being implemented that will eliminate the fabrication steps of affixing plates to ties and panel fabrication (including the drilling, handling the plate, attaching the plate with screws or spikes and other miscellaneous work) which has been performed by your members in the past." Filing 47-2 at 83. In support of that technology use, Union Pacific cited the February 7th Agreement permitting it to make "technological . . . changes" to its operations, and highlighted the parties' past practice allowing, among other things, "the automation of pre-plated switch ties." Filing 47-2 at 86.

         On March 10, 2017, the Brotherhood replied to Union Pacific's letter with a letter of its own. In that correspondence, the Brotherhood objected to Union Pacific's proposal. Filing 47-2 at 87. In response, Union Pacific restated its intent to use pre-fabricated materials, but also noted that implementation of the technology had been delayed. Filing 40 at 13; filing 47-2 at 89. At this point, Union Pacific informed the Brotherhood that "[i]f and when the technology to allow robots to fully plate ties and assemble track panels becomes available for use, [Union Pacific] will advise [the Brotherhood] of that fact" before installing any pre-fabricated materials. Filing 47-2 at 89; filing 40 at 13.

         With that understanding in mind, the parties continued business as usual. But in October 2017, the Brotherhood learned that Union Pacific installed "two switches that had been pre-plated" without informing the Brotherhood of its plan to do so. Filing 40 at 13. So, the Brotherhood filed this lawsuit, alleging that Union Pacific violated the Railway Labor Act (RLA), 45 U.S.C. § 151 et seq., by unilaterally abrogating the 2001 CBA. Filing 40 at 13.

         Union Pacific has moved to dismiss the complaint for lack of subject matter jurisdiction. See filing 51 at 2. The Brotherhood has also moved for summary judgment. Filing 46. For the reasons set forth below, the Court will grant Union Pacific's motion to dismiss and deny the Brotherhood's motion for summary judgment.


         A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges whether the court has subject matter jurisdiction. The party asserting subject matter jurisdiction bears the burden of proof. Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 988 (8th Cir. 2010). Rule 12(b)(1) motions can be decided in three ways: at the pleading stage, like a Rule 12(b)(6) motion; on undisputed facts, like a summary judgment motion; and on disputed facts. Jessie v. Potter, 516 F.3d 709, 712 (8th Cir. 2008).

         A court deciding a motion under Rule 12(b)(1) must distinguish between a "facial attack"' and a "factual attack." Branson Label, Inc. v. City of Branson, Mo., 793 F.3d 910, 914 (8th Cir. 2015). In a facial attack, the Court merely needs to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction. Id. Accordingly, the Court would restrict itself to the face of the pleadings and the non-moving party would receive the same protections as it would defending against a motion brought under Rule 12(b)(6)-that is, the Court would accept all factual allegations in the pleadings as true and view them in the light most favorable to the nonmoving party. Id.; Hastings v. Wilson, 516 F.3d 1055, 1058 (8th Cir. 2008).

         Conversely, in a factual attack, the existence of subject matter jurisdiction is challenged in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, may be considered. Branson Label, 793 F.3d at 914. Thus, the nonmoving party would not enjoy the benefit of the allegations in its pleadings being accepted as true by the reviewing court. Id. But factual challenges do not arise only when a court considers matters outside the pleadings. Faibisch v. Univ. of ...

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