The Colorado and Wyoming Railway Company ("Carrier" or "C&W^) is a short-line railroad headquartered at Pueblo, Colorado. Interchanging with the Union Pacific and the Burlington. Northern and Santa Fe lines, C&W provides rail service chiefly to CF&I Steel, UP, known as Rocky Mountain Steel Mills ("CF&r' or "Mill") and maintains its shops and offices within the Mill's fenced complex at the site.
Prior to the incidents giving rise to this dispute, Paid Salinas ("Claimant") had served as a regularly employed ia~orer for the Carrier at the Mill since June 15, 1981. On October 3, 1997, Mill employees represented by the United Steelworkers of America ("USWA") struck their employer. On October 11, 1997, picketing spread to the established reserve gate, On October 13, 1997, Claimant's first scheduled shift thereafter, he refused to report for work as assigned.
i
Denver, CO. The followiug appearances were noted: David NV. Furgason, Esq., Dufford and Brown, P.C. for Carrier; and Newton G. McCoy. Esq., St. Louis, MO for the Organization. Both sides were afforded a full opportunity to present evidence and argument of their choosing on the issues discussed herein. A verbatim transcript was made of the proceedings. Simultaneous post-hearing briefs were exchanged on November 30, 1999; reply briefs were posted on December 14, 1999. Without regard to whether specifically referenced, all documents and video-tape materials received in evidence and all argument advanced in support of the respective positions of the parties, excepting new evidence not presented in case handling on the property, has been considered in the preparation of this Opinion and Award. Signature by concurring or dissenting Members of the Board does not necessarily denote agreement with or dissent to ail aspects of this Opinion and Award.
Carrier is solely owned by CF&I, Inc., which in turn is the general partner in CF&I Steel, LP., the owner and operator of the steel mill, Carrier's predominate customer. It supplies rail service to the Mill, which recycles steel into rail, reinforcing bars and other products at its Pueblo facilities. Carrier's. relations with its employees are governed by the Railway Labor Act The labor relations of the Mill fall under the nation's ether primary labor statute, the National Labor Relations Act.'
On September 22, 1997, C&W Vice-President Robert Porter advised all employees that in the event USWA-represented Mill personnd should call a strike, C&W personnel were to report to work exclusively through a -safe gate," the East gate on Pueblo Boulevard, until further notice. "Please be reminded," his letter continued, "that our contracts do not expire ou September 30, 1997, and accordingly, any failure to report to your scheduled and assigned duty could result in your permanent replacement." By follow-up letter dated September 30, 1997 Porter advised C&W employees that "if you have decided to honor
tthe CF&I Steelworketsi strike, be certain to remove all your personal belongings from Company property.-."
Upon commencing their work stoppage on October 3, 1997, strikers posted pickets at the main entrance to the Mill complex. Approximately a week later, on or about October 10, 1997, picketing spread to the "safe gate" designated for use by the Mill's non-striking tenants, including employees of the Carrier. Carrier continued to maintain operations, using regular employees who persisted in reporting to work through the safe gate as well as a number of replacements.' Commencing on October 13, 1997, Claimant's next scheduled workday, he refused to report and perform services for the Company. According to the uncontested representations of the Organization, he did, however, inform his Shop Foreman, Mr. Skull, each day during the first week of his absence that it was unsafe for him to report. Thereafter, Claimant left a daily message to the same effect on an answering machine in his shop.
On October 20, Porter advised Claimant that he was being placed in non-pay status and that his medical benefits would expire at the end of that mouth. The following day the Organization wrote Porter to request that a "safe gate" be restored so that Claimant could report to work On October 29, Porter replied that a preliminary injunction was in place against acts of violence by striking iJSWA members; that the C&W had made arrangements to tratucport its employees safely between their reside»ees add jobs; ' that other employees were reporting without incident; and that there appeared to be no basis for believing conditions were so hazardous as to constitute an "imminent danger" under the Federal RaHroad Safety Act. Notwithstanding, Claimant did not report to work for the duration of the ateelworkea' strike.
' According to the Organization, the khn had also hired approximarely 600 replacement emptoyocs and continued to operate. It further represents that the National Labor Relmons Hoard has issued a complaint, as yet unresolved, on the qu=on of whether this strike was pr=pitated by ttaftur labor practices on the part of the Mill. If the ansacr to that question is ultimately determined to be yes. the hiring of teplaaarents by the Mull tray constitute an unfair labor practice, but as between C&W and Claitoaat, that issue is irrsletUt.
y Claimant contends be teas never aware of Company-provided, fix transportauou arrangement:. It is undisputed that such serizces oommencad about a wedc after the safe hate was picketed.
"...the things were the aggressiveness that the steelworkers, the picketen
were displacing ...the hitting the vehicles, the screaming, hitting of vebicks,
6
Lastly, 10 the Organization emphasizes that it is not and has never rested its Claim on or sought relief under the Federal Railroad Safety Act The Claim is a straightforward minor dispute. Despite the chaos, Claimant called in to his shop daily to advise that he had tried to report but was dismissed without cause. Carrier's attempts to fend off consideration of the merits on preemption grounds reflect a tortured reading of the law. Citing extensive case authority, the Organization asserts that the dispute can and must be resolved pursuant to the terms of the applicable labor agreement.
The Carrier argues that this dispute arises for one reason only: For more than three months, beginning on October 13 and at all times since, Paul Saline refused to cross a stranger picket line and then incredibly attempted to justify his job abandonment on grounds that coming to work presented a hazardous condition.
As the Carrier views the matter, in the absence of express provisions in the collective bargaining agreement, issues of refusal to work because of alleged safety concerns are goveraed exclusively by the FRSA. Zn now setidng arbitration of this Claim before this Board, the Organization ignores well-established law holding that only the courts have jurisdiction to construe and apply that statute. This is not a minor dispute, dependent for its resolution on an interpretation of the collective bargaining agreement. The parties' collective bargaining agreement does not address issues of refusal to work for safety reasons, and the RLA vests jurisdiction in this Board only to resolve minor disputes arising "out of grievances or out of the interpretation or application of [collective bargaining] agreements." it
1° We &ad the one furtlcr argument put fmwud by the Cirgawation--that the Common ownership of the Mill and Carrier should be rrsd as imputing habtlity to tire railroad for the Ill's innlrility to maintain its resirve gate-cannot be taken seriously, ~~ 45 U.S.C. § 153 Firx ti).
The Claim here is a sham, posed to this Board for the sole purpose of avoiding the very clear and controlling law under the FRSA. That Act disfavors Salinas because he cannot possibly meet its standards for determining what constitutes an unsafe condition justifying withholding services. Claimant's own testimony makes it clear that the Claim arises under the FRSA; he has relied solely and continuously on safety reasons for refusing to work. Accordingly, because the courts have held that FRSA disputes and minor disputes are mutually exclusive, his Claim is preempted by the FRSA and this Public Law Board has no jurisdiction to hear it.
Since this dispute involves exclusively MA-preempted questions of workplace safety, and a hearing is mandatory prior to discharge only when the grievance is based upon application of the labor agreement, the hearing requirement has no applicadop in this instance.
Lastly, as a matter of equity, given that Salinas repeatedly asserted fear for personal safety is his sole reason for refusing to work, C&W argues that it should be allowed to rely on that professed justification and match the assertion with the appropriate legal standard, FRSA's hazardous condition test_ If not, it is left defending potentially inconsistent and mutually exclusive claims. The doctrines of election of remedies and estoppel should apply in such circumstances to prevent just such prejudicial effect. The Board must find that the Organization's efforts to belatedly tart the Claiar up in the clothing of a minor dispute are barred by those equitable doctrines.
DISCUSSIONOur threshold concern is jurisdiction. For the reasons stated below, we reject Carrier's view that a determination on the merits is neither required nor permitted and find that this Claim presents a minor dispute, resolvable on its merits by the Board without offense to the terms of the FRSA.
As Carrier emphasizes, the MA protects railroad employees who refuse to work when faced with a "hazardous condition" and by its terms establishes the applicable standards
OPrNa()N AND ANY ARQ Public Law Board :No. 6161 - Case \o. 1governing refusals to t,ork based on safety concerns.t' The statute further sets forth provisions designed to promote judicial efficiency and eliminate duplicative litigation over such issues:
Stripped bare, Carrier's reasoning is that because Claimant relied exclusively on fear for his safety in refusing to report, and the Act sets forth an election of remedies clause, he must litigate his claim in federal court. The federal court at trial level summarily rejected that thinking, and this Board finds it equally unpersuasive. t4
First, Carrier asserts an unconfirmabie half-fact in stating that the Claim relies only on safety considerations as Salinas' justification for refusing to work. His November 26, 1997 Claim expressly sets forth two reasons for his actions:
Thus, the Claim posits dual motives, and in airbrushing the second, Carrier appears to invite us into an area where the preemption argument simply loses its vigor.
~' 49 U.S.C.A.§20109 (b). "49 U.S.C §20109 (d).
" Swimming beneath the sur&oe of Curie's argamcnts is us concern that if Claimant's remedies are not restricted to one (ortun or the other it tuns the risk of getting conflicting or ia~siRent dtinns on the= important issues But that is not a new problem or one unique to this dispute. PiM in Alexander v. GatdAerbruvcr Co.. ;15 U.S. 36 (1974), the Cant Lm·nimously rest lower court ridings on election of remedies issues and hold that as employee represented by a union could bring a Tide VQ action even after submitting a grievance under his CBA and loang his nso--which involved both contractual and statutory claims-at arbitration. The Cout found that Title VII was aimed at supplementing, not supplanting, other protections, and that a private Muse of action a trot forfeited by first pursing a griecrance to arbitration as a wnawtual dispute. In short the grievance does not waive statutory rights: the filing of a public clam; does not waive toe right to arbitration: and the arbitrator has the nght to resolve questions of contract violation which are sitailsr to or duplicative of statutory rights. subject to judicral revirw. Significantly, only the employee in the Title VII context-and presumably in the comext of FRSA actions as well--aljoys this "two-bites-at-the-apple" arrangement dnee neither Title VIE nor the FRSA encompass employer rights against the employee. Second. in any event there is nothing to prohibit the Board from imposing the federal standards ,a the oonteta of its case.
in relying upon Hawaiian Airlines." There, in the words of the Supreme Court, the "only source" plaintiff relied upon in pressing his claim was state tort law. This case makes it clear that employees can enjoy rights derived independently from collective bargaining agreements and statutory, law, and that the RLA does not preempt most individual statutory claims. Applied to our case, Ilawaiian Airline$ says that several sources assure Claimant of his right not to be terminated wrongfully for refusing to work in unsafe conditions. They include the FIRS& and Claimant's collective bargaining agreement, but the only source Claimant points to here is his asserted right under the CBA to safe working conditions and to engage in sympathy strikes.l° Claimant's assertion that he was
'° Carrier cites Boston acrd Maine v Leafesc 799 F. 2d 795, for the proposition that FRSA and RLA remedies arc mutually eXCIusrve. Than, in a cast the First Circuit describes as ate of first iatprtiot, the court at the Comm of tnlunvve ptocrrdungs found a minor dispuu posed by the UTU's claim that intoaasreot flagging represented a danger under FPSA § to (b). The count held:
While UM core bolding of this case is consistent with the pronouncements of the Supreme Court, a Carrier notes ft court exprest~ the view that a § 10 (b) work stoppage cannot be a miner dispute. Tbat observation appears to be idiosyn=ade, but in context must be read as an attempt to clarify the lower court's lack of jurisdiction under the RLA to eYHnt~ the merits of the underlying dispute prior to exhaustion of the arbitration process. While the opinion is somewhat confusing, the holding of $wloa and Maine is entirely in line with Supreme Court authority and with our conclusions here. In shot., the case holds only that for purposes of federal court jurisdiction in iajunctite proceedings, the dim= court was empowered to enjoin a rail strike over safety ianres called tinder § 10 of the FRSA pending resolution of the undertyiag dispute by an RLA adjustment board under broad principles of eqtuly, but erred is maldnt findings of face in that coatata that this was an illegal a&. Imponantly fat purposes of this case. the court found that "[oNy the availability of injunctive relief can ensure that the FRSA will operate consistently with its purpose-which it to gtve employees the right to avoid hazardous conditions on the raikorui cord to chattndi any such dispute into binding arbitration-" Ibid 3t g02.(Emphasis added.)
"dismissed" in violation of his CBA is clearly "arguable," and not "obviously insubstantial," and so presents a classic minor dispute within the primary jurisdiction of this Board.l'
Third, even if accurate, characterization of the dispute as purely safety-rdated does not in our view mechanically exempt it from handling pursuant to the RLA's mandatory dispute resolution mechanism. As the trial court held in the prior litigation on this issue, "the issues raised by (Sa)inas] here are properly within the jurisdiction of an Adjustment Board under the Railway Act." Although no rationale accompanied its ruling, few principles of labor law are better established than the policy favoring arbitration of tabor disputes. As the court implies, and as the Supreme Court long ago found, arbitration of labor-management disputes is strongly encouraged, and "(a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage."te More recently, the Court stated, "[W]here the (collective bargaining] contract provides grievance and arbitration procedures, those procedures must first be exhausted and courts must order resort to private settlement mechanisms without dealing with the merits of the dispute."1'
At the risk of owls to Athens, in this instance that presumption is particularly powerful. The terms of § 20109 (c], which Carrier's reading of the FM appears to us to scant, explicitly incorporate Section 3 of the RLA, providing for m:ndatory arbitration of "minor disputes" by Boards of Adjustment Thus, the statue itself plainly installs the familiar procedure whereby the Board is to judge the legality of an employee's asserted rights--
here to refrain from working-according to well-recognized standards of our labor laws, but subject always to judicial review. '°
Lastly, boat preemption and preclusion of federal statutory remedies are matters of congressional intent. Legislative history can be a kind of silly putty, drowning intent in diatribe, but to the extent cited by the Organization in this dispute, and reading the sounds of silence from Carrier on the point, it appears beyond doubt that Congress contemplated the established grievance machinery as the primary forum for resolving workplace safety disputes when it enacted legislation that paralleled the OS$A for general industry. Thus, this rrom the Congressional Record during House committee discussion of the authorization bill for appropriations on September 22, 1980:
We next trust decide the Organization's procedural question: whether the Carrier's actions in permanently replacing Claimant without a hearing is fatal to its position and should compel Saunas' reinstatement without further analysis. The applicable rule provides in part:
Plainly, we add nothing to the Parties' understanding in recalling that grievances may concern not only the interpretation but also the application of collective bargaining agreements-22 And we betray no trade secrets in repeating that one important purpose of on-property hearings is to winnow and sift issues of CBA applicability-and there is no question but that this issue was imbedded in the dispute. Accordingly, passing without remark sound labor relations and the quasi-appellate nature, of railroad arbitration, anything that tends to burden or qualify Saunas' right to a hearing is presumptively suspect. Carrier's argument that the hearing requirements of the CBA have no application to his problem because he made an election to rely on a safety defense, which only the courts can assess, appear to this Board both casuistic and incompatible with those principles.
The Board believes the better rule is that except in narrow, carefully confined circumstances, doubts about omitted hearings should be resolved in favor of requiring them, lest access to dispute resolution mechanisms be foreclosed, valuable rights forfeited and the general purposes of the RLA frustrated. That said, eve conclude there are two reasons for finding that failure to hold one under the circumstances here should not act as a baffle to Board consideration of the merits. First, as prior authority suggests, where the conduct in dispute is in the nature of job abandonment, or actions in kind, the Carrier's response in context may arguably not constitute discipline in the conventional sense. The Organization argues hard that the Agreement makes no provision for such "self-executing"
Although not by name. minor disputes are thoee arising out of RI_4 § 2 Si#h and § 3 First (i). n9uIrin8 wnpulsory arbitrarion procedures for dispata "growing out of grievances or out of the i nterpxe>etioa or application of agrxastnts.oonceraiag rata of pay, rules, or woddng conditions."
terminations. But Claimant took initial action here; his conduct speaks volumes, and his failure to even request a hearing bolsters the suspicion that this dispute lacks the usual "Carrier-acts-Claimant-reacts" complexion of the normal disciplinary matter.
Second, even if Claimant's actions are not classified as job abandonment and the Claim is instead viewed as belatedly asking whether Saunas had an inherent CBA right to safe working conditions as an incident of the employment relationship, and whether resort to self-help in vindication of that right was a breach of his employment obligations, it does not necessarily follow that a lack of investigation and hearing is fatal to Carrier's case. It is obvious from a review of the arbitral jurisprudence that a totally uniform view of what remedy sbould apply when a hearing is bypassed in analogous circumstances has not developed 1' Guided by the awards provided, the arguments of the parties and our own research, we find for the reasons below- that the anomalous facts of this matter put the case squarely within the narrow class of cases that warrant exceptional treatment, and conclude that the meriu of the Claim are not barred from our review on account of the bypassed investigation and hearing.
The Organization offers rail arbitration authority bolding that it is of no consequence that a bearing may not hive yielded any facts exonerating Claimant. We agree with that wholesome general statement, and am strongly inclined to think that a hearing would not have illuminated anything hers, since even at these proceedings, conducted almost two years after he stopped working, aside froth robust and creative argument, only Claimant's deposition and a collection of newsetips were produced in support of his safety claims. On the other hand, there is ample basis in the record for concluding that Claimant would not
" See, e.g., Honda FAst Low & BMWE (Rau) (Gamer'e action in terminating Claimant without hearing for falling to protect assignment while incatrsrated upheld; forfeiture of seniority was by voluntary am of Claimant not discharge, and hearing issue thus irrelevant); BRAC &y~ (O'Bden) (Claimants admission of guif prior to imescigsttion and 30-day suspension for failing to protect amgameat held to obviate nocdsity for hearing as it would amount to an cxerase in futility.) Can Fns; Dtvtston Award No. 9561 (Fox) C°>Ile agreement. must be conserved to mean that where, upon demand.. an investigation and t$& hearing am not accorded ...the right to ruasmement 'with frto dine ...for ail time lost' exists"). See also the resolution offered by First Dbj1WRA_wUd-~024 44 (rwotucy) (1993) (in dispute over whether termination was a result of whistlcblowing to FM or refusal of fellow employees to work with Claimant and no conference took place on property, Board remands matter to
have attended a hearing had one been scheduled, requiring a hearing in absentia- :end that is consequential.
The crucial issue question on this procedural point is whether the merits of this dispute should go by default for failing to hold a hearing on the property to discuss why the Claimant would not come onto the property while USWA picket lines were up. The practical impossibility of holding a bearing under such circumstances--where Claimant had liberally demonstrated that as Local Chairman for the NCP&O he would be sitting it out until the strike was settled-cannot be winked at- There is no valid basis in the Agreement, and abundant support in the cases, for concluding that forfeiture should not be worked where Claimant himself was responsible for his fugitive status. If the sturdy equitable maxims of "clean hands" and "the law does not require useless acts" ever had application, it is in precisely these circumstances. Thus, where the record is clear that Claimant had no intention of covering his assignment until the USWA strike was settled, the argument that Carrier's must lose by default for not attempting a futility simply gets no traction. The Board concludes that in the absence of any explicit contractual penalty, and lacking any demonstrated injury or prejudice to the Organization's case resulting from what might be considered Carrier's technical misapplication of the hearing rule, default in favor of Claimant is not warranted.
Mgrft;: CTaimant'sRefusal to Work Unsafe Conditions:We have examined this record microscopically in attempting to assess the bona fides of Salinas' contention that he could not report for over 80 days oat of true concern for his safety. We conclude that Claimant's professed fear cloaks the real state of affairs.
The evidence reveals that "two or three weeks" prior to the expiration of the USWA contract, UTU-represented employees of C&W, then in negotiations with C&W on their own' new agreement began to solicit support from co-workers to honor picket lines should a strike occur. According to one TCU employee, "it was well known that they were planning
to use fear for their safety as a reascn not to cross the picket line." On September 15. 1997, two weeks before the strike began, the UTV put Carrier on official notice of its position by letter reading in material part as follows:
On September 22, 1997, apparently concerned by these developments, Carrier distributed and posted a bulletin directing all C&W employees to use the "Old Fountain Asphalt Gate" from that date forward in reporting, and advising further that "...any failure to report to your scheduled and assigned duty could result in your permanent replacement." Claimant, then serving as Local Chairman for his union, was copied on this communication and testified that he received anti read it.
A partial sampling of the experiences of Claimant's co-workers both before and after the strike commenced is informative. Approximately one week before the strike, one IITL'represented worker stated that a fellow employee advised him that:
The mord is clear that other C&W unions evidenced similar formal stud informal support for the steelworkers. On September 30, 1997, the Brotherhood of Railroad Carmen advised Carrier in writing that "any pickets at the so-called neutral gate win constitute an unsafe condition ...Should there be pickets and the Carmen choose not to cross the tine, their actions are protected by Supreme Court decisions, the Railway Labor Act, and
"' Standing alone. this scaterncnt is neutral, rcflocang only what the Organization professed to be its rights under FP-%& No broader mfeteaces are intended or warranted on. this record by this Board with respect to any action try that Organ;zariov or its members or the activities of otbec Gtgaaizations, some of whose members art, quoted for
Section 212 of the Railroad Safety Act..." .'Notwithstanding that position, one Car-man testified that despite threats of lines and blackballing from his union if he crossed, he reported for work three days after the strike began. His assessment of the situation was as follows:
Another C& W Carman stated that he was told by his Organization prior to the start of the USWA strike that if he crossed the steelworkers' lines he would he fined. He further stated:
Other C&W Organizations, notably the IAM, apparently voted to continue working and their members did so without serious incident, as did the majority of other C&W employees, including all marialement and all replacement workers. A short, partial sampling of their experiences, in their own words, is informative.
An unrepresented female intern, who initially used Company-supplied transportation to report to work daily and later drove herself, observed that "(i]t was not a pleasant
October 13 was Claimant's first scheduled workday after the I)SWA broadened its picketing to include the East Gate. Beginning on that date and continuing for the next five days, Claimant and certain other C&W personnel reported to their supervisors that they were unable to come to work because they were afraid to cross steelworker picket lines. As suggested by the excerpted testimony quoted above, several C&W employees who had initially held out returned to work shortly thereafter and, according to the testimony of Carrier's President and COO, conceded that the safety concerns they initially voiced were synthetic and that "no one was realty afraid of crossing the picket line or of say consequences." By the end of the first week, most C&W workers were back working. The only other C&W employee in Claimant's class and craft crossed the picket line daily throughout the strike without incident.
By letters dated October 29 and October 30, Carrier gave lit C&W employees, including Claimant, -notice that free transportation to and from work would be provided
for anyone interested. Although some employees took advantage of that offer, Claimant and apparently some other employees who chose to honor the picket lines did not do so. Some employees who initially utilized the service concluded after about 3 weeks that it was unnecessary and resumed taking their own vehicles across the picket lines to and from the Mill. C&W's offer to reimburse its employees for damages incurred in coming to work resulted in no claims for such damages, nor did any C&W employee report to Carrier a single physical injury during the strike.
The Organization cautions this Board to avoid wrongly attributing the actions of other C&W employees to Claimant in making common cause with lawful strikers. Claimant did not attempt to convince others to refuse to cross, it maintains, and there is no evidence that he ever threatened his co-workers. Those are deserving arguments. But no such attribution is required to find that Claimant's actions in remaining away from work for nearly 80 days and reporting to the safe gate for 10-15 minutes each day, taken in context with pre-strike events and bolstered by 5 separate videotapes depicting conditions on the picket lines at various times in October and November, are difficult to reconcile with any realistic "fear for personal safety."
Because fear is highly subjective, the same circumstances that that might reasonably intimidate a young office worker may not frighten a hard-bodied section hand. As John Steinbeck had it, no two journeys are -like. Thus the ROAN feels it prudent to stir with a long spoon the competing contentions of the disputants here that the picket-line activity was either Easter week in the convent or a kind of WWF Smaekdown.
While then a some evidence, chiefly in the form of press clippings'', that picket line activity was occasionally energetic, Claimant from all appearances u a robust laborer. We
'` The Organization spoasorcd 24 pages of newsclips covering the strike period in support of Salmas' claim of
unf e conditions. tic , Organization fhgMts P-4 through P-32.) Taken at a whole, they prruy much puree tae
urg=ent that the safe gate was a dangerous place. Only 14 of else 24 press reports ecfecenae pidut tine misconduct
or stare-relate violence, Theree is one undated report from an unidentified journal describing a burglary ar she
hotnc of a CF&A employee who crossed the picket line (P·19). The oulirat dared clipping (F-10) is from October
12. 1997, sou=c uaidenufiee, It quotes LTrU Vice President John Garcia somcwhat clypucally desedbirrg the
reasons rail employees nstc graying out "It's rot s railroad strike; it's trot a matter of honoring the pfcm lines at
all: ft's concerns for our personal safuy. We imow that by czocsing the picket tine, it would hoighten the
21
have scoured this record for signs of misconduct that might reasonably stimulate fear in his mind while at the same time causing no such apprehension on the part of his coworkers,
including women, young interns, clericals and replacement workers. At the end of the analysis, the facts totally refute the cant.
It is evident from the testimony and the substantial volume of film received into evidence that both C&W employees and to a lesser extent striking steelworkers at the East Gate sometimes hollered, made obscene gestures, and were a general irritation to people trying to come to work for the railroad. But while no one likes to be yelled at, the record in this particular case is devoid of compelling evidence establishing any safety risk in crossing
tensions ...There's a sense that the prh-ate security force presents a threat to us as well," Garcia said. The remainder of these clippings am dated well after Claimant made his decision to stop working and could not have been relied upon is making that decision. The next article chronologically (P-18) is dated October 30, 1997 and describes a striker's report that someone drove towards him at a high rate of speed while he was prckedag. The rest errs in November and December. November 8, 1997 (P-20: Pueblo Chieftain reports railroad worker's complaint of threatening phone calls); November 9, 1997 (P-21: Chieftain reports two strum claim they were struck by a lut and nun vehicle); November 10, 1997 (P-22: Unidentified source reports that District Attorney is asked to file charges against one of the two hit and run victims for false reporting; police indicate they am not imwtigating the other incident as hit and run); November 14. 1997 (P-24. Chieftain reports picket line patrols stepped up in response to alleged hit and nul); November 20, 1997 (P-26. Chieftain reports that "Company and Union Trade Complaints.- including individuals "dmatening employees sceldng ingress and egmt to employer's facilities."); November 20, 1997 (P-27.Chttylain reports that CFi&I strikers yelled racially harassing remarks at three black replacement workers; USWA leaders indicate such actions will not be tolerated.); November 21, 1997 (P-28. Colorado Springs Gazette reports that steel company accuses strikers of breaking the law by refusing to aegodate and inducing "picketing the home of an employee" and "following the vehicles of employees in a threatening manner_); November 27, 1997 (P-29. Chtejtain reports that railroad machinist poi of nails on his driveway.); December 24, 1997 (P-30. Chtrjlmn reports under headline "Mayhem at CF&I" charges of basely repomng vehicular assaults; increased incidems of trails being thrown to deflate tires; "keying" of cars; speeding vehicles and replaxmew workers taunting strikers by dashing $100 bills.) Ethibitr P-31 and P-32 from the Garerre and the Denver Port report same story under headlines "Pueblo Beefs Up CF&I Security." and "Picket Violence Decried," with the latter article citing incidents of egg throwing and the wife of a striker allegedly struck by a car entering the plant as under lmestigaboa" In short, in a long strike and in a community as small as Pueblo. CO, wbm rosttial presumably to news. there are 14 print media discussions of strike-related mischief over a period of nearly throe moods, am of which tP-10) is in the nature of a policy statement from a U71J official on October 12 and only two of which (P-20 on November 8 ftelepboac callsl and P-29 on November 27 [nails at rmidenccl ) involved Carrier employt:es, the latter occurring six weeks into Claimant's job action. acrd neither occvrling at the safe gate. Of the remaining 11 articles. two (P-21 and P-23) involved false mpons; three (P-30-3132) concerned increased security in late December prompted principally by the events described in the November reports; two am general rehashes or position summaries of the partinnis with anecdotal reference to miscunducr; and four reSeqted uwidentt of genuine misconduct, none invotvi ng Canter personnel and all apparently occurring after Claimzat decided to suspend his work. (P-9. suspected arson attempt on Deoembcr 8; P-14, spying car on October 20; P-19. burglary, date unspecified; P-27, racial remarks on November 27.) It would taste willful
perversity to find in this history conditions so u>amtdadag a to ex.,~ue three months of iaac:idry based upon safety concerns.
''The NLftH and the courts have ttnquea.iy dis:groed about how much leeway strikers arc entitled W on the picket lines, onth the Board holding that thtrals ,Mnnxmtpanied by p5ysica! acts or gestints am not stt>£cient to ptaoe suikas outside the protection of the Act, and the Circuits oflea rejxanE that standard as erronarus. Nwexthelessr while outcomes depend on individual circvmstaacxs, the Bo" Et-nanUy· don not consider ttKxe imebal threats sanding alone "striker misconduct" sufficient to remove smkca from the protection of the Act and allow an employer to impost QiscipEine. ,^g= tz_ w e. hfcfhwiQt.Inc . 220 :JLRH 593 (19'75). &yT w 551 F. 24 deavine enforWent
r On critical detail, Claimant's testrmoay as a dcpoaem is sometimes difficult to oavigate. The result is a story that often seems oobbled together lie heard people screaming, but do='t know who screamed or what they were wzeaming at saw cars behind him in the rum lam for the gate, but doesn't know who they ware or if they passed Through the pre; never discussed any of this anth aiy other NCF&O-represented employee, including whether he mumded to report: was afraid of the steelworkers but "door sot mow' If any one of them ever threaumed hinu saw sheets of plywood with tames and addresses at the safe gate. which made him afraid, but believes the namo were those of vedworkm; did net wane to be seen by his neighbors as taiang someone else's job, but admits be would not be doing so by working his own; sod, despite a grievance asserting be was fearful "far tire safety of himself and my family," tcsri5ed that he was never fearful for his own personal safety but only that of his family, although he kam of no thmiiies that bad been molested.-
2* We give Claimant on this point generous running room In point of fact, under the provisions of §302 to wtdch the Organization would have us analogize. "tht quitting of labor by an employee or employees yn eood faith
picket lines may be places of high adrenaline and may feature impulsive acts or even violence, record evidence from which an objective fact finder could conclude that circumstances here were hazardous or intolerable is in short supply. If that is not clear from Claimant's testimony, '9 the fallacy in his theme can be found in several objective, undisputed facts: the majority of employees worked without problems; the safe gate was patrolled by security guards; there was not a single documented incident of physical violence on the picket lines during the strike; no injuries or property damage were reported by Carrier employees; Claimant was at no time subjected to picket line violence, nor did he ever witness any. Moreover, his complaints of "clammy hands" and "upset stomach" at merely seeing the pickets is not compatible with congregating daily at the scene to chatted casualty with other C&W employees who did not work. He never once troubled to ask his supervisor about alternate means of coming to work, in good part itself a revealing case study. On balance, the tale of fear over perilous conditions at the gate is not a credible story. It bangs there like a wen; the more picked at, the worse it looks.
In sum, the record falls short of establishing conditions so risky as to permit an inference that a reasonable person in Salinas' position would have believed be was in danger. He says he felt uncomfortable, but viewing that claim against the pre-strike background, his own testimony, the actions of fellow cmpioyem and the significant videotaped evidence of the environment at the safe gate, an imaginative leap is required to find real danger or the realistic apprehension of such, let alone "abnormally dangerous" conditions on this record. Carrier was entitled to set its own and higher standards for
because of abmonp&Uv daag=g conQitiea for wv&...[shala not] be ddemed a strike." (Emphasis added.) See, GatMUCoal Co. v. LW~j~ Wot_ 414 U S. 368. 386-87 (1974) (Union sang to justify a work stoppage on safety &rounds um, present `ascertainable. objective e`idence supponins its conclusion that an abnormally dangerous condition for wwk exists.' " _52; aLc& Js=ecs Lm~ 79 v. ha.RB, 325 F. ld 1011 (D.C Cir_ 1963), gg, d"j%L377 U.S. 905 (1964) (`lwjhu cowls a trot the state of mind of the employee ... but whcther the actual woddaS conditions shown to exist by competent evidence might in the atramsmxc reasonably be considered 'abnormally dangerous, "). There is some debate here as to whether, post-FPSA, a subjective test is am longer appropriate for judging a refusal to work because of safety cm== m whether the objective standard of that F,= should apply txdusivsly. For out purposes, the question is moot to view of our Endings that Claimant cannot on this record satisfy either test.
:~ CIaintant's references to `the hitting of vehicles" and to "numerous articles of gasohne being poured arotmd Wines" were trot nd#iatinlttd fry record r4dena.
reporting, standards above the "discomfort" line drawn by Claimant. His conduct did not measure up to those standards. Accordingly, the Board concludes that there is abundant record evidence to support Carrier's determination that the CSWA picket lines did not constitute an unsafe condition justifying Claimant's failure to report for work.
Having found that Claimant's safety concerns were synthetic, and that refraining from work on account of purported health hazards camouflaged more heartfelt motives, we turn to his second professed justification for failing to cover his assignment: "respect for the picketing workers."s°
While the issue of reasonable apprehension is fact intensive and potentially somewhat subjective, the question of Claimant's right to demonstrate his respect by engaging in a sympathy strike, and Carrier's right to respond as it did, is a purely legal one. And while the law in respect to parts of the question is far from settled, it is reasonably clear on the big pieces of who can do what under the circumstances presented by this Claim.
Both sides urge analogizing to the NLRA on aspects of this case. As an initial matter, as the parties are aware, significant differences exist between the rights of employees under the NLRA and the RI.A to engage in sympathy strikes. Succinctly, the NLRA places no restrictions on the right of employees to honor the picket lines of other unions, even during the terra of their collective bargaining- agreement, typically stimulating employers to negotiate "no strike" clauses. 31 While an employer may discharge employees who engagt in unprotected strikes if it does so property, the range of protected activity is broad, including, as the Organization emphasizes, the quitting of labor over safety issues.
As noted above, the Orgaxiizatiou's Claim dated November 26, 1997 Luc= this as one of two bases, although Claimant himaetf at various times hAc expressly disclaimed any sympathy for suihing steeivvorkers
" in 5m gad= Jac. v RMii Clerks Uujon Local 770 398 U.S. 235 (1970) the Court held that the Norris LaGuaxdia Act does not bar mjuncaoas in aid of enforcing contractual no mike clauses. In U,Mh Force r. v Urutrd ~teelworlmts. 4:8 U.S. 397 (1976) the Court refused to apply Rove Madm to permit injunctions of sy~thy tuilces on ;rounds that when catch strike are solely in sympathy with the disputes of another union they an not over arbitrable issurs. Accordingly, trader the NLRA the courts an without jurisdiction to enjoin sympathy strikes. In cowrast, a radiated, they any getkrally be enjoined undo the RLA oa a tailor dispute theory, with the Norris LaGuardia Act prohibitions held inapplicable due to the Act's emphasis on strike avoidance.
The RL.k, in contrast, puts the accent on continuity of service, strike avoidance and the minimization of interference with or disruption to national air and rail transport. Given that emphasis, a number of district and circuits court: though not all, have enjoined sympathy strikes under the RLA on the "minor dispute" theory, i.e.. if the express and implied provisions of the collective bargaining agreement can be arguably construed to require employees to report for work, the work stoppage can be enjoined pending an arbitrxl determination of the contract's meaning. "
The NLRA extends great latitude to employers to dismiss employees who engage in unlawful strike activity ~3 Employees who respect another union's picket lines, absent a binding no-strike clause, are normally viewed as engaging in protected activity under §7 and are immune from discharge." Similafly, because the Railway Labor Act puts a premium on the "continuance of the employer's operations and the. employer employee relationsbip,^ the courts generally have not tolerated the discharge of RLA employees who strike in violation of the Act2s
The Board need not get entangled direcdy in those issues here, but as subtext, the principles are meaningful and have portentous`rarnifications for Claimant. While discharge of strikers appears to be impermissible under both statutes, replacement of strikers is allowed under the NLRA.M The policy interests underlying the RLA, the duties that statue places on common carriers to provide uninterrupted service, and the reported cases
3' See Lg_ y. Fan MZ113nriral C=.. 306 U.S. 240 (1939). Unlike under the RLA, however, such discharges art subject to challenge through the unfair tabor practice n=huaesy. NLRA casts draw an important duvnction benvexn discharge of ctoplvyees engaged to an unlawful saike and permanent teplaoemcats hued in place of lawfully striking eraplmees. In the lacy case, the la-%U smIcer retains his sums as an employee, sub)ea to onurmag whey and if the replacement kavea.
N aer, Hardtrt. "The Developing Labor Law," 3'd Ed., 1992 at 149. Terminations under the NLRA for sympathetic striking art, however, permitted wbea justified try ovemding "legittmate busucs oonadcratiOAt."
r° See National Airlines- Inc- 308 F. Supp. 179 (S.D. F(a.1970). Revd out other gWM;iaL 430 F. 2d 957 (5~ Cir. (Flee) 1970).cert, denie3 400 U.S. 992 (1971). (Mass discharge of wildcat strikes held not justified by needs of service; replacement would have been compatible with the needs of the service.)
'e5M, huw v. Mdray Radio & T cleg=h Co.. 304 U.S. 333 (1938).establish that airlines and railroads may also lawfully hire permanent replacements for employees who engage in lawful, authorized economic strikes." Worker replacement in RLA-covered industries is not common, and is less common still in the context of work stoppages occurring outside the permissible period of self-help. The authority on the parties rights and obligations in terms of sympathy strikes is thus less well developed. But it is no less clear, for if replacement is sanctioned in response to lawful strikes, there is illogic in prohibiting it in response to unauthorized strikes, As one court has held in the context of an unlawful RI.A job action, "The permissible bounds of self-help... (is defined as] not including mass discharges, but limited to employing replacements to the time the strike would have ended."" And, since Claimant left work without authorization in order to assist an unaffiliated union representing employets of another employer in support of its targeted objectives, those arc exactly the facts here.
In analyzing Claimant's conduct, we are intensely conscious of the historic importance of picket lines in the railroad industry, and recognize as well the competing obligations placed on the employer as a common carrier to maintain its operations. The first proposition-the tradition among organized employees to respect picket lines,has a long and distinguished pedigrees It is a labor heritage often recognized by the courts, and one the Organizations value highly. And for obvious reasons. In the words of Learned Hind:
'' See rg, Florida F.zst Coast 384 U.S. a 344, 346:13 s'. JWg 819 F. 2d 839, 842 (sm Cir. 1987); 6LP& v. Uniud it .ice, 802 F. 2d 856, 907 (7'* Mr. 1986); Em== F=tonana de Aviwon v. D=! Lo9.ae No
100. 669 F 2_ 8> 844 (11° Cit. 1982): Flight us'n v. E=eL6 pay t-'ales, 208 F. Supp.l82, 194 (S_i) _N.Y), aTd. 307 F. 2d 510 (2d Cir.1962); Emcm Air Lines v. ALE& 920 F.2d 722 (11ar Cir. 1990) m, denied 502.U.S. 901 (1991).
't National &Wines- 430 F.2d. 957,959.In bypassing the established claim procedures of his Agreement and resorting to selfhelp on October 13, 1997, Claimant's conduct was consistent with the support for a sister union acknowledged by Justice Hand:'° Governing oneself in accordance with passionate commitment, achieving the arduous task of autonomy, living in harmony with one's philosophy, and acting courageously are all respectable goals.
Hut that said, the rail transportation industry teaches this leveling lesson: trains should run on time. In the railroad world's bazaar of choices, moral dedication to ideals and political loyalty are not principles necessarily superior to sate and reliable operations or the settlement of differences in an orderly fashion. As Carrier in this instance plausibly asserts, "...the nature of the rail business is you can't just shut off inbound sad outbound shipments like you turn off a light switch...[o]ur other customers demanded some services ...tbey could care less about the strike" Thus, as the courts have recognized repeatedly, when it comes to questions of who may refuse to perform work as agreed under the RLA, "(t]ht emphasis of the Act is on an orderly, prescribed procedure."tt
For :hose reasons, it the right to walk off due to genuine concern over abnormal health hazards is protected activity under the RLA, when, as here, stn employee feigns fear in order to strike for other rta··~ he takes matters into his own bands in violation of the status quo commanded by the Act. In doing so, he exceeds the bounds of permissible conduct, triggers the employer's reciprocal right to engage is its own self-help, stud at feast temporarily forfeits stay doom to his job.
A.(Ihough Hte Claim itself a55atS respect for picket fines. Claimant and his union at rimes s«mingty both declare and dcay any intent to honor LiSWA picket lines is this proceeding The employee and his union discussed the subject of honoring the picctt lines, and "shat that meant to unionism in goal" prior to the strike. (T-239). Bur in his deposition, C>simaat uxsistrd chat prior to the SGtke he intended to continue to work, oaimting on the safe gate. -even if it offended the stedaaritets...l wasn't ,romod about otltadiag tHem... I Lad do concern about it" At suggested, 11x 13aard accepts ihc terms of the C>um, in the ooataa of me surrounding tixtZtmstaaxs, as the more reliable esidasoe on the point " Nan Airlines. gmm.308 F. Supp. 179, 183 (S.D. Fla. 19?U).
Board concludes that Carrier was warranted both in terms of the Agreement and external law in following through on its warnings.
The Board would be derelict if it did not commend counsel on both sides of this matter for their cooperation and courtesies throughout, but particularly for the high quality of their presentations.
7. Substantial record evidence exists to find that Claimant's refusal to work was not based on a good faith belief that conditions on the safe gate were so diffcult, dangerous or unpleasant as to justify such refusaL
B. Substantial record evidence exists to find that conditions on the safe gate did not satisfy FRSA standards for jastifgiug Claimant's refusal to worst.
8. Substantial record evidence exists to find that Claimant withheld his services in sympathy with striking steelworkers.
9. Substantial record evidence exists to find that Carrier's failure to hold a hearing prior to replacing Claimant under the circumstances of the cast does not result in default on the merits.
10. Substantial record evidence exists to find that Carrier's decision to permanently replace Claimant does not violate the Parties' Agreement.