United States District Court, D. Nebraska
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION/IBT, Plaintiff,
UNION PACIFIC RAILROAD COMPANY, Defendant.
MEMORANDUM AND ORDER
M. GERRARD UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
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.
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.
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
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.
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).
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.
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 ...