National Association of Railroad Referees

1. 2014 Annual Meeting Chicago, Illinois Legal Developments Affecting Railroads National Association of Railroad Referees Robert S. Hawkins 1290 Avenue of the Americas, 30th Floor New York, NY 10104

2. Interplay BetweenArbitration 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.

3. Interplay BetweenArbitration 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.

4. Interplay BetweenArbitration 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.”

5. Interplay BetweenArbitration 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.

6. Interplay BetweenArbitration 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.”

7. Interplay BetweenArbitration 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)

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.”

14. 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:

15. 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.

16. Inward-Facing Video Cameras • UP and Soo Line filed similar lawsuits, which were later dismissed because the dispute is being treated as “minor.”

17. 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:

18. 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.”

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. Commuter Rail Emergency Boards • The second Emergency Board is "baseball style." • Board recommends the "most reasonable offer."

26. 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.

27. 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 4098423-V1