Category: Labor Relations

?Takeaway: Under the Railway Labor Act (RLA), federal jurisdiction may exist over a seemingly minor disciplinary issue if the discipline was allegedly based on anti-union animus.

?A union established RLA discrimination when an offsite brawl resulted in the suspension of its leadership, but not a pro-railway member, the 5th U.S. Circuit Court of Appeals ruled.

The Brotherhood of Locomotive Engineers and Trainmen is a labor union representing more than 5,000 Union Pacific engineers. It is made up of a number of local units or divisions. Division 192 is the exclusive representative for Union Pacific employees in and around El Paso, Texas. During early 2021, tension arose within the division over the union’s stance on “shoves.”

Engineers take shoves when they accept extra shifts at the request of the railroad. The union took a position against taking shoves, but one engineer continued taking them. Two Division 192 officers, the local chairman and vice local chairman, confronted the engineer about his behavior via text message and the division’s Facebook page.

Mounting tensions ultimately erupted into an off-duty fist fight before a union meeting. The meeting was scheduled at a local restaurant. The pro-shove engineer arrived a half hour before the start time. A number of the division’s officers, including the local chairman and vice local chairman, had already arrived and were chatting in the parking lot.

The engineer approached the vice local chairman and allegedly struck him repeatedly until he fell to the ground. The local chairman and other division members attempted to separate the parties, and a shouting match ensued. In the tumult, the engineer crossed back over to the vice local chairman, who had risen to his feet, and allegedly punched him until he collapsed again. The two were finally separated, and the meeting took place without the engineer or the vice local chairman.

Almost two months later, the engineer filed a complaint with Union Pacific, alleging that he had been threatened and physically assaulted by the local chairman and the vice local chairman in retaliation for taking extra shifts. A company supervisor met with the engineer about the incident and took statements from two other employees. One wrote that he had witnessed part of the altercation and helped to diffuse the situation. The other was not present but said that he also took shoves and had been subject to similar harassment by the vice local chairman.

About a week later, Union Pacific indefinitely suspended the local chairman and vice local chairman without pay. It also suspended three other union officers and one more union member. The engineer’s initial report did not allege that those four were directly involved in the fight, but were simply bystanders. Union Pacific did not take their statements before disciplining them.

All six individuals received notices of investigations stating they would be subject to disciplinary proceedings that could result in termination. The local chairman and vice local chairman were charged with violating two Union Pacific policies prohibiting violence in the workplace and discourteous, immoral or quarrelsome behavior, and the other four bystanders were charged with failing to take any action to stop the fight or report the incident to management.

The engineer was not suspended or issued a notice, even though it is Union Pacific’s policy to discipline every participant in a physical altercation. It also did not discipline the other engineer who witnessed the fight even though he had not made any effort to report the incident.

The suspension of six union members effectively barred all of Division 192’s leadership from the premises. The officers claimed that they could not perform most union duties remotely.

Within days of the suspensions, the union sued Union Pacific in federal court, alleging that it retaliated against the union for its shove policy in violation of the RLA, which prohibits interference with union activity. The union sought an injunction requiring Union Pacific to end its investigation and reinstate the suspended employees. Union Pacific filed a motion to dismiss for lack of subject matter jurisdiction, arguing that the dispute needed to be arbitrated. The district court granted the preliminary injunction and denied the motion to dismiss.

Union Pacific appealed to the 5th Circuit. On appeal, the 5th Circuit found that the district court had jurisdiction because of the evidence of anti-union animus by Union Pacific. It ruled that the district court had not abused its discretion in granting an injunction to the union. Union Pacific argued that the union was not likely to succeed on its interference claim. The court found that the evidence that the union’s active-duty leadership had been suspended and two pro-shove employees were not, supported the finding of a likelihood of success.

Brotherhood of Locomotive Engineers and Trainmen v. Union Pacific Railroad Co., 5th Cir., No. 21-50544 (Apr. 13, 2022), petition for rehearing en banc denied (May 10, 2022).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

?Takeaway: While UtiliQuest’s legal counsel didn’t invent the pre-emption doctrine or pioneer its application in an employment case, it was definitely an outside-the-box strategy that paid off.

?An employee’s state law claims against his employer were so closely related to claims that could have been brought before the National Labor Relations Board (NLRB) that the state law claims were pre-empted, the 9th U.S. Circuit Court of Appeals held.

The plaintiff was a lead field technician for UtiliQuest. According to his suit, in 2017, UtiliQuest asked him to convince his fellow workers to “release their [union] rights” in exchange for a 10 percent raise. The plaintiff did that and received a 10 percent raise, but his co-workers did not. After he complained that the company hadn’t upheld its end of the bargain, he was terminated under what he alleged were false pretenses.

Two years later, the plaintiff sued UtiliQuest, contending his termination was a result of fraud, whistleblower retaliation and was a wrongful termination under California law. The appeals court affirmed the decision of the lower court that the plaintiff’s claims were all pre-empted by federal labor law. The general doctrine of federal pre-emption means that certain types of state action (whether a statute by a state legislature or a specific instance of litigation) are pre-empted by existing federal law that actually regulates the specific conduct at issue, or pre-emption can exist where it’s clear that Congress intended to leave a zone of activities unregulated. The plaintiff’s case concerned only the first type of pre-emption; specifically, that because the National Labor Relations Act (NLRA) prohibited the same conduct that was the basis of the plaintiff’s claims, he couldn’t bring a state action on that basis.

The court noted that while the focus of the plaintiff’s fraud claims would be an intent to deceive, the subject matter of the deception was an unlawful waiver of union rights, in violation of the NLRA by interfering with the union’s role. The whistleblower and wrongful termination claims were also pre-empted because these depended even more clearly on the plaintiff establishing that he’d engaged in protected concerted activity. It would be hard to imagine a scenario where he prevailed on these claims without also establishing an NLRA violation.

It may seem strange to invite a court to imagine a violation of one law as a defense to suit under another law. However, it made sense in this case because an employee has only six months to file an unfair labor practice charge with the NLRB. Since the plaintiff waited until two years after his termination to file suit, pleading this defense didn’t subject the company to any additional risks.

Moreno v. UtiliQuest LLC, 9th Cir., No. 21-55313 (March 18, 2022).

Whitney R. Brown is an attorney with Lehr Middlebrooks Vreeland & Thompson PC, the Worklaw^® Network member firm in Birmingham, Ala.