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Text of UP's lawsuit in this matter
Author: OPRRMS
Date: 08-22-2013 - 11:57
For those interested, UP has filed for a declaratory judgement to prevent the BLET and UTU from attempting a labor action, i.e., strike, over this issue. Here's the text. It won't format properly, but you should be able to decipher it.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNION PACIFIC ) CASE NUMBER: 8:13-257
RAILROAD COMPANY, )
)
Plaintiff, )
) COMPLAINT FOR
v. ) DECLARATORY RELIEF AND
) REQUEST FOR PLACE OF
BROTHERHOOD OF LOCOMOTIVE ) TRIAL
ENGINEERS AND TRAINMEN, )
)
and )
)
UNITED TRANSPORTATION UNION, )
)
Defendants. )
__________________________________________)
Introduction
1. Plaintiff Union Pacific Railroad Company (“Union Pacific”) seeks a declaratory
judgment, pursuant to 28 U.S.C. § 2201 and § 2202, against the Brotherhood of Locomotive
Engineers and Trainmen (“BLET”) and the United Transportation Union (“UTU”) (collectively,
“the Unions”), declaring that any disputes over the pending installation and operation of inwardfacing
video cameras in locomotive cabs are “minor disputes” subject to exclusive handling
under Section 3 First (i) of the Railway Labor Act (“RLA”), 45 U.S.C. § 153, First (i). For the
same reasons cited in Kansas City Southern Railway Co. v. Brotherhood of Locomotive
Engineers and Trainmen, et al., No. 5:13-cv-00838, 2013 WL 3874513 (W.D. La., July 25,
2013), these disputes are properly classified as minor disputes – not “major” disputes – under the
RLA because they involve the interpretation or application of collective bargaining agreements
(“CBAs”), and so must be resolved in mandatory and binding arbitration.
- 2 -
Jurisdiction and Venue
2. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 and § 1337.
3. Venue is proper in the District of Nebraska under 28 U.S.C. § 1391(b), because the
Unions are residents of, are found in or have agents within, or transact their affairs in this judicial
district, and the activities of the parties giving rise to this action are occurring, relate to, or
otherwise have effects in this District.
Parties
4. Plaintiff Union Pacific is a carrier by rail as defined in the ICC Termination Act, 49
U.S.C. § 10102, and a carrier as defined in Section 1 First of the RLA, 45 U.S.C. § 151, First.
Union Pacific is headquartered in Omaha, Nebraska and operates a rail transportation system in
interstate commerce in twenty three states. It has significant facilities in this district.
5. The defendant Unions are unincorporated associations and the collective bargaining
representatives, as defined in Section 1 Sixth of the RLA, 45 U.S.C. § 151, Sixth, of certain
crafts or classes of railroad workers employed by Union Pacific. BLET represents the craft of
locomotive engineers. UTU represents the craft of conductors. Conductors and engineers are
referred to collectively as “train crew” employees.
Recent Litigation Over Inward-Facing Cameras in Locomotive Cabs
6. On April 24, 2013, The Kansas City Southern Railway Company (“KCSR”) announced
plans to install inward-facing cameras in locomotive cabs and to use such cameras in disciplinary
proceedings. BLET and UTU opposed these plans, and took the position that the KCSR’s action
constituted a “unilateral change” in the parties’ CBAs in violation of the RLA (i.e., a “major”
dispute).
- 3 -
7. Litigation ensued over whether installation or use of inward-facing cameras gives rise to
a major or minor dispute. The KCSR filed a Verified Complaint against BLET and UTU on
April 24, 2013, seeking a declaration that any dispute over the pending installation and operation
of inward-facing video cameras in locomotive cabs is a minor dispute subject to exclusive
handling under Section 3 of the RLA. The KCSR postponed installation of the cameras pending
the outcome of that proceeding.
8. In that proceeding, the KCSR moved for summary judgment, and the Unions moved for a
status quo injunction. The KCSR contended that it had an implied contractual right to install and
use cameras, based on past practices. The KCSR further contended that no CBA imposed
restrictions on its use of monitoring technology, and that the railroad therefore retained a
reserved right to install and utilize such technology at its discretion. The Unions disagreed that
the KCSR was contractually entitled to proceed, and contended that KCSR was engaged in a
“unilateral change” in working conditions.
9. On July 25, 2013, the District Court denied the Unions’ motion for a status quo
injunction and granted the KCSR’s motion for summary judgment. Kansas City S. Ry. Co., 2013
WL 3874513. Finding that the dispute was minor, the Court held that the dispute between the
parties over the carrier’s decision to install inward-facing cameras in its locomotive cabs was
subject to compulsory and binding arbitration under Section 3 of the RLA.
10. In the KCSR matter, the carrier established that it was arguable that the parties’ past
practices – including the use of stationary cameras in the train yards, the recording of employee
phone calls, and the use of inward-facing cameras in crew vehicles – created an implied
agreement concerning employee monitoring that would allow KCSR to install inward-facing
cameras in locomotive cabs. Based on these practices, the Court found that it was “not
- 4 -
frivolous” to argue that “the Unions have agreed to be monitored to the extent reasonably
necessary to meet the safety challenges faced by KCSR.” Id. at 6. Consequently, the dispute
between the parties “turns on the interpretation of the parties’ existing agreement; and thus this
dispute would be classified as a minor dispute over which the arbitration board has exclusive
jurisdiction.” Id. at 2.
Union Pacific’s Decision to Install Inward-Facing Cameras
11. The parties to this litigation are similarly situated in all material respects to the parties in
the KCSR litigation.
12. Union Pacific has studied the feasibility and benefits of installing and utilizing inwardfacing
cameras in its locomotives for several months.
13. Union Pacific has now decided to install cameras for the same safety-related reasons as
the KCSR. The carriers’ installation and utilization plans for the cameras are very similar. The
carriers’ policies to control the use of data collected from the cameras will likewise be similar.
In particular, Union Pacific plans to collect and use the data collected from the cameras with
safeguards that mirror the KCSR’s plans.
14. The Unions have challenged Union Pacific’s right to take this action. BLET has advised
Union Pacific that the Union would oppose installation of inward-facing cab cameras on the
Union Pacific system. This is consistent with the Unions’ prior statements about inward-facing
cameras and their arguments in the KCSR litigation. Based on these facts and upon information
and belief, the Unions will oppose any installation and/or use of inward facing cameras by Union
Pacific and will view such action as giving rise to a major dispute, rather than a minor dispute
subject to handling under Section 3 of the RLA.
- 5 -
Contractual Justification: Past Practice
15. Union Pacific relies on the same legal justifications as the KCSR for the installation and
use of inward-facing cameras, including implied agreements arising from past practice and the
doctrine of reserved rights.
16. Union Pacific is party to a number of CBAs with both Unions. In addition, beyond the
written agreements, the railroad and the Unions are also party to so-called “implied” agreements
arising from past practice. Union Pacific maintains that it has an implied contractual right to
install and use inward-facing cameras based on extensive past practices. Union Pacific has the
affirmative right, based on implied agreements, to monitor its employees to the extent reasonably
necessary to meet the safety challenges faced by the railroad, including through the use of
inward-facing video cameras and related technology in its locomotive cabs.
17. Over the years, Union Pacific has engaged in many forms of employee monitoring,
including recording of employee phone calls, the use of stationary surveillance cameras in train
yards and other locations where employees work, the use of inward-facing cameras in cranes
used to perform bridge and rail work, the use of track inspection recording devices in yards, and
the use of inward-facing cameras in the vans that transport Union Pacific crews to and from train
assignments. In addition, Union Pacific has installed many forms of technology and equipment
in or on locomotives to monitor train crew compliance with safety rules and regulations,
including Detection System Access (“DSA”) technology, positive train control technology,
safety equipment, remote control devices, signaling equipment, and Telematics. Indeed, if
anything, Union Pacific’s history of monitoring employees is even more extensive than on the
KCSR.
- 6 -
18. Examples of Union Pacific’s use of monitoring technologies include the installation of
stationary surveillance cameras. Union Pacific has a long-standing past practice of installing and
using stationary surveillance cameras at more than 500 train yards and other locations across its
property. These cameras are installed in every locomotive and car repair facility, equipment
repair facility, office building, and nearly every crew room, including lunch rooms. In addition,
all major classification yards and the vast majority of secondary classification yards have
cameras and other forms of surveillance that have been in place for up to 50 years. These
cameras routinely capture images of Union Pacific employees in the work place.
19. Inward-facing cameras are currently utilized by vendors in crew vans that transport
Union Pacific crews to and from train assignments, and Union Pacific plans to install inwardfacing
video recorders in its own crew vans.
20. Union Pacific has installed Telematics equipment and software that monitors employee
driving habits, such as braking and acceleration habits, and compliance with driver safety laws.
Currently 600 out of 6,000 Engineering Department vehicles have Telematics, and Union Pacific
plans to equip approximately 1,250 vehicles annually with the technology. All new vehicles will
be equipped with the technology going forward.
21. Union Pacific has installed outward-facing cameras (called “Track Image Recorders”) on
the majority of its locomotives. Currently, over 88 percent of Union Pacific’s road locomotives
have been equipped with such cameras. While the cameras are outward-facing, they
occasionally capture images of Union Pacific employees walking or working in the vicinity of
the front of the locomotive.
- 7 -
22. Union Pacific also monitors its employees by recording all radio communications
between train crews, dispatchers, and on-ground forces, as well as all phone calls made by train
crews into the Crew Management System.
23. Train crews are subject to especially close monitoring while in the locomotive cab.
Beginning in early 2013, Union Pacific began implementation of its DSA program, which
detects the use of cells phones in locomotives, which is prohibited under Rule 2.21 of Union
Pacific’s GCOR, the “Electronic Device Rule.” See Union Pacific Rules, General Code of
Operating Rules, Rule 2.21.
24. Union Pacific also uses Locomotive Event Recorders to monitor train crews. These
devices record various data from train operations, including the actions of the train crew in
changing speed and direction, sounding the horn, braking the locomotive, and the like. By
reviewing the data from the recorder, Union Pacific can determine whether a train crew has
complied with various operating rules and requirements. Union Pacific has recently installed
additional sensors on locomotives to more accurately capture information regarding an
engineer’s handling of a train to identify exceptions to standard, recommended, or mandatory
operating practices.
25. In all of the above instances, Union Pacific and/or its vendors installed and used the
monitoring or recording equipment without bargaining with its unions, notwithstanding the fact
that data or recordings from the equipment can be and are used to monitor employee compliance
with operating rules, directives, and requirements. All of these past practices relating to
installation and use of monitoring equipment support Union Pacific’s position that it has a
contractual right to install and use inward-facing cameras in locomotive cabs.
- 8 -
Contractual Justification: Reserved Rights
26. In the alternative, Union Pacific has retained the right to install and use inward-facing
locomotive cab cameras under the parties’ CBAs. When no express or implied agreement
imposes restrictions, the rail carrier retains discretion to operate and to make changes as it deems
necessary. This is sometimes referred to in the rail industry as the doctrine of “reserved rights”
or “managerial prerogative.”
27. None of the parties’ CBAs address the installation or use of video cameras in locomotive
cabs. Accordingly, Union Pacific maintains that it has a reserved right to introduce and utilize
video cameras in locomotive cabs. Its right to do so is consistent with and part of its broad
retained power to change locomotive equipment, introduce new technology, engage in and
enhance employee monitoring, adopt new policies, and make similar or related changes that do
not conflict with existing agreements.
28. Union Pacific’s position is supported by a long line of arbitral precedent finding a general
managerial right to introduce and use various other forms of technology in locomotive cabs.
Neutral referees considering the exercise of carriers’ reserved rights on such issues have
provided substantial latitude to carriers to update technologies and equipment. Union Pacific’s
position is further supported by a long line of arbitral precedent finding an inherent managerial
right to monitor or observe employees to ensure compliance with operating rules.
Classification of Camera-Related Disputes as Major or Minor Under the RLA
29. Federal courts have jurisdiction to resolve disagreements about whether any particular
dispute is properly classified as “major” or “minor” under the RLA.
30. A “major dispute” under the RLA is a “unilateral change” in a CBA, which is prohibited
by Section 2 Seventh of the RLA, 45 U.S.C. § 152, Seventh.
- 9 -
31. A “minor dispute” under the RLA is any dispute over the interpretation or application of
the parties’ existing CBAs. Such disputes are subject to handling under Section 3 of the RLA.
Section 3 allows unions to file grievances in response to contested carrier conduct; such
grievances are handled under procedures detailed in the unions’ respective CBAs. If, at the end
of the grievance handling process, the unions still believe that the carrier’s actions are improper,
they can pursue the matter before a neutral referee in arbitration under Section 3 of the RLA. 45
U.S.C. § 153. Under Section 3, it is unlawful for employees to strike or otherwise exercise selfhelp
over a minor dispute.
Count I
32. Plaintiff realleges and incorporates the preceding paragraphs as fully stated herein.
33. Any dispute between Union Pacific and the Unions over installation and use of inwardfacing
cameras in locomotive cabs is properly classified as a “minor dispute” for the same
reasons stated in the recent KCSR decision. Specifically, “the proposed action is arguably
justified by the terms of the parties’ collective bargaining agreement[s] and the argument
justifying the action under the CBA is neither frivolous nor obviously insubstantial.” Kansas City
S. Ry. Co., 2013 WL 3874513, at *4.
34. Like the dispute between the KCSR and the Unions, this dispute involves the
interpretation and/or application of the parties’ CBAs, including but not limited to (a) whether
Union Pacific has an implied right to install and use cameras based on past practice, and/or (b)
the question of whether there is any express or implied agreement provision that restricts Union
Pacific’s reserved right to install and use such equipment.
35. Because any dispute over installation or use of inward-facing cameras is a minor dispute
subject to arbitration, any strikes, work stoppages, or other forms of self-help by the Unions over
- 10 -
such matters would violate Section 3 of the RLA. Union Pacific is therefore entitled to a
judgment declaring that any disputes arising from or relating to installation or use of inwardfacing
cameras are “minor disputes” subject to the mandatory dispute resolution procedures set
forth in Section 3 of the RLA, over which strikes or other use of self-help would be unlawful.
Prayer For Relief
Wherefore, plaintiff Union Pacific prays that:
1. This Court issue a judgment declaring that any dispute with the Unions over
Union Pacific’s right to install and use inward-facing cameras in locomotive cabs is a “minor
dispute” subject to handling under Section 3 of the RLA, 45 U.S.C. § 153;
2. This Court issue a judgment declaring that any use of self-help by the Unions over
installation or use of inward-facing cameras, in derogation of the mandatory dispute resolution
procedures of Section 3 of the RLA, would be unlawful; and
3. This Court provides any other and further relief deemed just and equitable.
Request for Place of Trial
Plaintiff, Union Pacific Railroad Company, respectfully requests that trial and all other
Court proceedings be held in Omaha, Nebraska.
DATED: August 20, 2013.
- 11 -
Respectfully Submitted,
UNION PACIFIC RAILROAD
COMPANY, Plaintiff,
BY: /s/ William M. Lamson, Jr.
William M. Lamson, Jr., #12374
LAMSON, DUGAN and MURRAY, LLP
10306 Regency Parkway Drive
Omaha, NE 68114
(402) 397-7300 - office
(402) 397-7824 – facsimile
and
Donald J. Munro
JONES DAY
51 Louisiana Avenue, N.W.
Washington, DC 20001-2113
(202) 879-3922
dmunro@jonesday.com
ITS ATTORNEYS
575029
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNION PACIFIC ) CASE NUMBER: 8:13-257
RAILROAD COMPANY, )
)
Plaintiff, )
) COMPLAINT FOR
v. ) DECLARATORY RELIEF AND
) REQUEST FOR PLACE OF
BROTHERHOOD OF LOCOMOTIVE ) TRIAL
ENGINEERS AND TRAINMEN, )
)
and )
)
UNITED TRANSPORTATION UNION, )
)
Defendants. )
__________________________________________)
Introduction
1. Plaintiff Union Pacific Railroad Company (“Union Pacific”) seeks a declaratory
judgment, pursuant to 28 U.S.C. § 2201 and § 2202, against the Brotherhood of Locomotive
Engineers and Trainmen (“BLET”) and the United Transportation Union (“UTU”) (collectively,
“the Unions”), declaring that any disputes over the pending installation and operation of inwardfacing
video cameras in locomotive cabs are “minor disputes” subject to exclusive handling
under Section 3 First (i) of the Railway Labor Act (“RLA”), 45 U.S.C. § 153, First (i). For the
same reasons cited in Kansas City Southern Railway Co. v. Brotherhood of Locomotive
Engineers and Trainmen, et al., No. 5:13-cv-00838, 2013 WL 3874513 (W.D. La., July 25,
2013), these disputes are properly classified as minor disputes – not “major” disputes – under the
RLA because they involve the interpretation or application of collective bargaining agreements
(“CBAs”), and so must be resolved in mandatory and binding arbitration.
- 2 -
Jurisdiction and Venue
2. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 and § 1337.
3. Venue is proper in the District of Nebraska under 28 U.S.C. § 1391(b), because the
Unions are residents of, are found in or have agents within, or transact their affairs in this judicial
district, and the activities of the parties giving rise to this action are occurring, relate to, or
otherwise have effects in this District.
Parties
4. Plaintiff Union Pacific is a carrier by rail as defined in the ICC Termination Act, 49
U.S.C. § 10102, and a carrier as defined in Section 1 First of the RLA, 45 U.S.C. § 151, First.
Union Pacific is headquartered in Omaha, Nebraska and operates a rail transportation system in
interstate commerce in twenty three states. It has significant facilities in this district.
5. The defendant Unions are unincorporated associations and the collective bargaining
representatives, as defined in Section 1 Sixth of the RLA, 45 U.S.C. § 151, Sixth, of certain
crafts or classes of railroad workers employed by Union Pacific. BLET represents the craft of
locomotive engineers. UTU represents the craft of conductors. Conductors and engineers are
referred to collectively as “train crew” employees.
Recent Litigation Over Inward-Facing Cameras in Locomotive Cabs
6. On April 24, 2013, The Kansas City Southern Railway Company (“KCSR”) announced
plans to install inward-facing cameras in locomotive cabs and to use such cameras in disciplinary
proceedings. BLET and UTU opposed these plans, and took the position that the KCSR’s action
constituted a “unilateral change” in the parties’ CBAs in violation of the RLA (i.e., a “major”
dispute).
- 3 -
7. Litigation ensued over whether installation or use of inward-facing cameras gives rise to
a major or minor dispute. The KCSR filed a Verified Complaint against BLET and UTU on
April 24, 2013, seeking a declaration that any dispute over the pending installation and operation
of inward-facing video cameras in locomotive cabs is a minor dispute subject to exclusive
handling under Section 3 of the RLA. The KCSR postponed installation of the cameras pending
the outcome of that proceeding.
8. In that proceeding, the KCSR moved for summary judgment, and the Unions moved for a
status quo injunction. The KCSR contended that it had an implied contractual right to install and
use cameras, based on past practices. The KCSR further contended that no CBA imposed
restrictions on its use of monitoring technology, and that the railroad therefore retained a
reserved right to install and utilize such technology at its discretion. The Unions disagreed that
the KCSR was contractually entitled to proceed, and contended that KCSR was engaged in a
“unilateral change” in working conditions.
9. On July 25, 2013, the District Court denied the Unions’ motion for a status quo
injunction and granted the KCSR’s motion for summary judgment. Kansas City S. Ry. Co., 2013
WL 3874513. Finding that the dispute was minor, the Court held that the dispute between the
parties over the carrier’s decision to install inward-facing cameras in its locomotive cabs was
subject to compulsory and binding arbitration under Section 3 of the RLA.
10. In the KCSR matter, the carrier established that it was arguable that the parties’ past
practices – including the use of stationary cameras in the train yards, the recording of employee
phone calls, and the use of inward-facing cameras in crew vehicles – created an implied
agreement concerning employee monitoring that would allow KCSR to install inward-facing
cameras in locomotive cabs. Based on these practices, the Court found that it was “not
- 4 -
frivolous” to argue that “the Unions have agreed to be monitored to the extent reasonably
necessary to meet the safety challenges faced by KCSR.” Id. at 6. Consequently, the dispute
between the parties “turns on the interpretation of the parties’ existing agreement; and thus this
dispute would be classified as a minor dispute over which the arbitration board has exclusive
jurisdiction.” Id. at 2.
Union Pacific’s Decision to Install Inward-Facing Cameras
11. The parties to this litigation are similarly situated in all material respects to the parties in
the KCSR litigation.
12. Union Pacific has studied the feasibility and benefits of installing and utilizing inwardfacing
cameras in its locomotives for several months.
13. Union Pacific has now decided to install cameras for the same safety-related reasons as
the KCSR. The carriers’ installation and utilization plans for the cameras are very similar. The
carriers’ policies to control the use of data collected from the cameras will likewise be similar.
In particular, Union Pacific plans to collect and use the data collected from the cameras with
safeguards that mirror the KCSR’s plans.
14. The Unions have challenged Union Pacific’s right to take this action. BLET has advised
Union Pacific that the Union would oppose installation of inward-facing cab cameras on the
Union Pacific system. This is consistent with the Unions’ prior statements about inward-facing
cameras and their arguments in the KCSR litigation. Based on these facts and upon information
and belief, the Unions will oppose any installation and/or use of inward facing cameras by Union
Pacific and will view such action as giving rise to a major dispute, rather than a minor dispute
subject to handling under Section 3 of the RLA.
- 5 -
Contractual Justification: Past Practice
15. Union Pacific relies on the same legal justifications as the KCSR for the installation and
use of inward-facing cameras, including implied agreements arising from past practice and the
doctrine of reserved rights.
16. Union Pacific is party to a number of CBAs with both Unions. In addition, beyond the
written agreements, the railroad and the Unions are also party to so-called “implied” agreements
arising from past practice. Union Pacific maintains that it has an implied contractual right to
install and use inward-facing cameras based on extensive past practices. Union Pacific has the
affirmative right, based on implied agreements, to monitor its employees to the extent reasonably
necessary to meet the safety challenges faced by the railroad, including through the use of
inward-facing video cameras and related technology in its locomotive cabs.
17. Over the years, Union Pacific has engaged in many forms of employee monitoring,
including recording of employee phone calls, the use of stationary surveillance cameras in train
yards and other locations where employees work, the use of inward-facing cameras in cranes
used to perform bridge and rail work, the use of track inspection recording devices in yards, and
the use of inward-facing cameras in the vans that transport Union Pacific crews to and from train
assignments. In addition, Union Pacific has installed many forms of technology and equipment
in or on locomotives to monitor train crew compliance with safety rules and regulations,
including Detection System Access (“DSA”) technology, positive train control technology,
safety equipment, remote control devices, signaling equipment, and Telematics. Indeed, if
anything, Union Pacific’s history of monitoring employees is even more extensive than on the
KCSR.
- 6 -
18. Examples of Union Pacific’s use of monitoring technologies include the installation of
stationary surveillance cameras. Union Pacific has a long-standing past practice of installing and
using stationary surveillance cameras at more than 500 train yards and other locations across its
property. These cameras are installed in every locomotive and car repair facility, equipment
repair facility, office building, and nearly every crew room, including lunch rooms. In addition,
all major classification yards and the vast majority of secondary classification yards have
cameras and other forms of surveillance that have been in place for up to 50 years. These
cameras routinely capture images of Union Pacific employees in the work place.
19. Inward-facing cameras are currently utilized by vendors in crew vans that transport
Union Pacific crews to and from train assignments, and Union Pacific plans to install inwardfacing
video recorders in its own crew vans.
20. Union Pacific has installed Telematics equipment and software that monitors employee
driving habits, such as braking and acceleration habits, and compliance with driver safety laws.
Currently 600 out of 6,000 Engineering Department vehicles have Telematics, and Union Pacific
plans to equip approximately 1,250 vehicles annually with the technology. All new vehicles will
be equipped with the technology going forward.
21. Union Pacific has installed outward-facing cameras (called “Track Image Recorders”) on
the majority of its locomotives. Currently, over 88 percent of Union Pacific’s road locomotives
have been equipped with such cameras. While the cameras are outward-facing, they
occasionally capture images of Union Pacific employees walking or working in the vicinity of
the front of the locomotive.
- 7 -
22. Union Pacific also monitors its employees by recording all radio communications
between train crews, dispatchers, and on-ground forces, as well as all phone calls made by train
crews into the Crew Management System.
23. Train crews are subject to especially close monitoring while in the locomotive cab.
Beginning in early 2013, Union Pacific began implementation of its DSA program, which
detects the use of cells phones in locomotives, which is prohibited under Rule 2.21 of Union
Pacific’s GCOR, the “Electronic Device Rule.” See Union Pacific Rules, General Code of
Operating Rules, Rule 2.21.
24. Union Pacific also uses Locomotive Event Recorders to monitor train crews. These
devices record various data from train operations, including the actions of the train crew in
changing speed and direction, sounding the horn, braking the locomotive, and the like. By
reviewing the data from the recorder, Union Pacific can determine whether a train crew has
complied with various operating rules and requirements. Union Pacific has recently installed
additional sensors on locomotives to more accurately capture information regarding an
engineer’s handling of a train to identify exceptions to standard, recommended, or mandatory
operating practices.
25. In all of the above instances, Union Pacific and/or its vendors installed and used the
monitoring or recording equipment without bargaining with its unions, notwithstanding the fact
that data or recordings from the equipment can be and are used to monitor employee compliance
with operating rules, directives, and requirements. All of these past practices relating to
installation and use of monitoring equipment support Union Pacific’s position that it has a
contractual right to install and use inward-facing cameras in locomotive cabs.
- 8 -
Contractual Justification: Reserved Rights
26. In the alternative, Union Pacific has retained the right to install and use inward-facing
locomotive cab cameras under the parties’ CBAs. When no express or implied agreement
imposes restrictions, the rail carrier retains discretion to operate and to make changes as it deems
necessary. This is sometimes referred to in the rail industry as the doctrine of “reserved rights”
or “managerial prerogative.”
27. None of the parties’ CBAs address the installation or use of video cameras in locomotive
cabs. Accordingly, Union Pacific maintains that it has a reserved right to introduce and utilize
video cameras in locomotive cabs. Its right to do so is consistent with and part of its broad
retained power to change locomotive equipment, introduce new technology, engage in and
enhance employee monitoring, adopt new policies, and make similar or related changes that do
not conflict with existing agreements.
28. Union Pacific’s position is supported by a long line of arbitral precedent finding a general
managerial right to introduce and use various other forms of technology in locomotive cabs.
Neutral referees considering the exercise of carriers’ reserved rights on such issues have
provided substantial latitude to carriers to update technologies and equipment. Union Pacific’s
position is further supported by a long line of arbitral precedent finding an inherent managerial
right to monitor or observe employees to ensure compliance with operating rules.
Classification of Camera-Related Disputes as Major or Minor Under the RLA
29. Federal courts have jurisdiction to resolve disagreements about whether any particular
dispute is properly classified as “major” or “minor” under the RLA.
30. A “major dispute” under the RLA is a “unilateral change” in a CBA, which is prohibited
by Section 2 Seventh of the RLA, 45 U.S.C. § 152, Seventh.
- 9 -
31. A “minor dispute” under the RLA is any dispute over the interpretation or application of
the parties’ existing CBAs. Such disputes are subject to handling under Section 3 of the RLA.
Section 3 allows unions to file grievances in response to contested carrier conduct; such
grievances are handled under procedures detailed in the unions’ respective CBAs. If, at the end
of the grievance handling process, the unions still believe that the carrier’s actions are improper,
they can pursue the matter before a neutral referee in arbitration under Section 3 of the RLA. 45
U.S.C. § 153. Under Section 3, it is unlawful for employees to strike or otherwise exercise selfhelp
over a minor dispute.
Count I
32. Plaintiff realleges and incorporates the preceding paragraphs as fully stated herein.
33. Any dispute between Union Pacific and the Unions over installation and use of inwardfacing
cameras in locomotive cabs is properly classified as a “minor dispute” for the same
reasons stated in the recent KCSR decision. Specifically, “the proposed action is arguably
justified by the terms of the parties’ collective bargaining agreement[s] and the argument
justifying the action under the CBA is neither frivolous nor obviously insubstantial.” Kansas City
S. Ry. Co., 2013 WL 3874513, at *4.
34. Like the dispute between the KCSR and the Unions, this dispute involves the
interpretation and/or application of the parties’ CBAs, including but not limited to (a) whether
Union Pacific has an implied right to install and use cameras based on past practice, and/or (b)
the question of whether there is any express or implied agreement provision that restricts Union
Pacific’s reserved right to install and use such equipment.
35. Because any dispute over installation or use of inward-facing cameras is a minor dispute
subject to arbitration, any strikes, work stoppages, or other forms of self-help by the Unions over
- 10 -
such matters would violate Section 3 of the RLA. Union Pacific is therefore entitled to a
judgment declaring that any disputes arising from or relating to installation or use of inwardfacing
cameras are “minor disputes” subject to the mandatory dispute resolution procedures set
forth in Section 3 of the RLA, over which strikes or other use of self-help would be unlawful.
Prayer For Relief
Wherefore, plaintiff Union Pacific prays that:
1. This Court issue a judgment declaring that any dispute with the Unions over
Union Pacific’s right to install and use inward-facing cameras in locomotive cabs is a “minor
dispute” subject to handling under Section 3 of the RLA, 45 U.S.C. § 153;
2. This Court issue a judgment declaring that any use of self-help by the Unions over
installation or use of inward-facing cameras, in derogation of the mandatory dispute resolution
procedures of Section 3 of the RLA, would be unlawful; and
3. This Court provides any other and further relief deemed just and equitable.
Request for Place of Trial
Plaintiff, Union Pacific Railroad Company, respectfully requests that trial and all other
Court proceedings be held in Omaha, Nebraska.
DATED: August 20, 2013.
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Respectfully Submitted,
UNION PACIFIC RAILROAD
COMPANY, Plaintiff,
BY: /s/ William M. Lamson, Jr.
William M. Lamson, Jr., #12374
LAMSON, DUGAN and MURRAY, LLP
10306 Regency Parkway Drive
Omaha, NE 68114
(402) 397-7300 - office
(402) 397-7824 – facsimile
and
Donald J. Munro
JONES DAY
51 Louisiana Avenue, N.W.
Washington, DC 20001-2113
(202) 879-3922
dmunro@jonesday.com
ITS ATTORNEYS
575029
