                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

BROTHERHOOD OF MAINTENANCE OF                    :
WAY EMPLOYES DIVISION/IBT, et al.,               :
                                                 :
       Plaintiffs,                               :      Civil Action No.:      16-1109 (RC)
                                                 :
       v.                                        :      Re Documents No.:      4, 5, 8
                                                 :
NATIONAL RAILROAD PASSENGER                      :
CORPORATION,                                     :
                                                 :
       Defendant.                                :

                                 MEMORANDUM OPINION

    GRANTING DEFENDANT’S MOTION TO DISMISS, DENYING PLAINTIFFS’ MOTION FOR A
                           PRELIMINARY INJUNCTION

                                     I. INTRODUCTION

       Plaintiffs, the Brotherhood of Maintenance of Way Employes Division/IBT and the

Brotherhood of Railroad Signalmen (collectively “the Unions”) seek a preliminary injunction

against Defendant National Railroad Passenger Corporation (“Amtrak”), alleging that it

unilaterally implemented new rules that changed working conditions in violation of the statutory

“status quo” period required by 45 U.S.C. § 156. See Am. Compl., at 1, ECF No. 2; Pls.’ Mot.

for Prelim. Inj., at 2, ECF No. 4. The Unions and Amtrak are parties to collective bargaining

agreements governing pay rates, rules, and working conditions. Am. Compl. ¶ 8. The Unions

take issue with Amtrak’s unilateral installation of “a video and audio surveillance system with

inward and outward facing cameras and audio recording used in vehicles used by [Union

employees] and supervisors.” Am. Compl. ¶ 13. The Unions allege that the implementation of

this system violates Section 6 of the Railway Labor Act (“RLA”), 45 U.S.C. § 156. Am. Compl.

¶ 23. Congress, however, has extended jurisdiction to the federal courts under Section 6 only in
cases of “major disputes,” which concern the creation of new contractual rights. Because the

dispute over the installation of the video and audio system arguably concerns the interpretation

of existing contractual rights rather than the creation of new contractual rights, it is a “minor

dispute.” Consequently, the Court lacks subject-matter jurisdiction and must grant Amtrak’s

Motion to Dismiss.


                                II. FACTUAL BACKGROUND

                           A. The Collective Bargaining Agreements

       Amtrak is a rail carrier system partially funded by the federal government. Am. Compl.

¶ 3. The Unions represent a group of Amtrak employees responsible for constructing, repairing,

and maintaining Amtrak’s track, right-of-way, and other structures, and a group of employees

responsible for installing and maintaining Amtrak’s signaling systems. Id. ¶¶ 6–7. Amtrak and

the Unions are parties to collective bargaining agreements (CBAs) that govern rates of pay, rules,

and working conditions. Id. ¶ 8. The CBAs contain “moratorium” provisions, which restricted

the ability of the parties to seek changes to the rates of pay, rules, and working conditions

through the end of 2014. Id. ¶ 9. Since the beginning of 2015, the parties have negotiated

several proposed changes to employee compensation and working conditions. Id. ¶¶ 10–12.

                                       1. Express Provisions

       Each plaintiff has an identical “System Safety Agreement” with Amtrak that begins with

the following introduction: “Amtrak and the [Union] are committed to a safe and healthful work

environment, free from intimidation and harassment, that meets or, where possible, exceeds all

applicable Local, State[,] and Federal Safety standards and to ensuring compliance with

Amtrak’s Safety Rules.” See Def.’s Mot. to Dismiss, Ex. 2, at 6, ECF No. 8-4; Def.’s Mot. to

Dismiss, Ex. 3, at 8, ECF No. 8-5. The Safety Agreements proceed to outline procedures for


                                                  2
training, workplace safety, accident reporting and investigation, and other safety-related

procedures. See Def.’s Mot. to Dismiss, Ex. 2, at 6–14; Def.’s Mot. to Dismiss, Ex. 3, at 8–16.

Under the heading “Work Place Safety,” the Agreements state that the parties will “use their best

efforts to ensure that . . . Amtrak safety rules are properly applied.” See Def.’s Mot. to Dismiss,

Ex. 2, at 9;1 Def.’s Mot. to Dismiss, Ex. 3, at 11. That same section provides that it is not a

violation of the CBA for employees to refuse to start work when any such law or rule is broken.

See Def.’s Mot. to Dismiss, Ex. 2, at 9; Def.’s Mot. to Dismiss, Ex. 3, at 11. There is no express

provision in the CBA that provides for how “Amtrak Safety Rules” are promulgated. The

Agreements further provide that Amtrak “shall establish full time [Union] Safety Liaison

positions,” and that the Union Safety Liaisons are responsible for “[d]etermin[ing] through

observation that employees are complying with safe work practices.” See Def.’s Mot. to

Dismiss, Ex. 2, at 12; Def.’s Mot. to Dismiss, Ex. 3, at 14. The Safety Liaisons’ observations

cannot be used to “initiate discipline.” See Def.’s Mot. to Dismiss, Ex. 2, at 12; Def.’s Mot. to

Dismiss, Ex. 3, at 14.

                                         2. Past Practices

       To monitor its fleet of over 300 trains and almost 3,000 “fleet vehicles,” “Amtrak has

robust safety and asset management programs” in place. See Decl. of Michael Logue, Def. Mot.

to Dismiss, Ex. 4, at ¶¶ 2–4, ECF No. 8-6. It does so in part to guard against the unsafe use of

the vehicles, which can result in injuries, death, and significant loss to Amtrak. See id. ¶ 4–5.

The procedures have been implemented unilaterally by Amtrak, and many of them are outlined

in the Amtrak Policy and Instruction Manual, which is available to employees online. See Decl.



       1
       Because Defendant uses portions of longer documents as exhibits, citations to
Defendants’ Motion to Dismiss Exhibits are to the page numbers assigned by ECF.


                                                  3
of Susan K. Reinertson, Def. Mot. to Dismiss, Ex. 5, at ¶ 5, ECF No. 8-7. The Unions have been

aware of the use of certain surveillance technologies to some extent. See Decl. of Sharon Jindal,

Def. Mot. to Dismiss, Ex. 1, at ¶¶ 29, 31–33, ECF No. 8-3.

                                        a. Video Monitoring

       Without express grounding in a CBA, Amtrak has used cameras and other employee-

monitoring equipment in the past. In fact, “[a]ll employees encounter video monitoring at some

point in their workdays, many for the entirety of their workdays.” See Decl. of Susan K.

Reinertson, Def. Mot. to Dismiss, Ex. 5, at ¶ 6. This monitoring has existed for years and has

been implemented by Amtrak management. Id. ¶ 5. Amtrak uses video surveillance for “safety

and security” in public and restricted areas. Id. ¶¶ 6–7. Video monitoring exists in “stations,

bases, maintenance facilities, tracks, bridges, tunnels, power stations, substations, yards, right-of-

way shelters, and parking lots.” Id. ¶ 7. This surveillance can be used in court proceedings and

for “other bona fide use[s],” including employee discipline. Id. ¶¶ 11, 13. The Unions allege

that they understood the existing video surveillance to be only used for safety purposes and to

have been “generally paid for by the . . . Department of Homeland Security.” See Second Decl.

of David Ingersoll, Pls.’ Memo. Opp. to Def. Mot. to Dismiss, Ex. 2, at ¶ 3, ECF No. 13-2. They

also contend that most of the existing cameras are installed in areas where Union employees do

not usually work. See Decl. of Jed Dodd, Pls.’ Memo. Opp. to Def. Mot. to Dismiss, Ex. 1, at

¶ 7, ECF No. 13-1. Although the Unions have known that surveillance technology can be used

for employee discipline, see Decl. of Sharon Jindal, Def. Mot. to Dismiss, Ex. 1, at ¶ 33, the

Unions contend that it has only been used in isolated cases. See Second Decl. of Jed Dodd, Pls.’

Memo. Opp. to Def. Mot. to Dismiss, Ex. 1, at ¶ 12.




                                                  4
                              b. Time Entry Devices (“TED Units”)

       Since 2006, Amtrak has used cameras to photograph the faces of employees when they

use their electronic information cards to access employee-only areas. See Decl. of Ronald R.

Nies, Def. Mot. to Dismiss, Ex. 7, at ¶¶ 3–5, ECF No. 8-9; Def. Mot. to Dismiss, Ex. 8, ECF No.

8-10. The information collected can be used to discipline employees for misusing the time-entry

system. See Decl. of Ronald R. Nies, Def. Mot. to Dismiss, Ex. 7, at ¶ 5. The Unions contend

that Amtrak never told them that the system could be used for discipline. See Decl. of Jed Dodd,

Pls.’ Memo. Opp. to Def. Mot. to Dismiss, Ex. 1, at ¶ 8. However, at least one employee and

member of a Union has been “reprimand[ed] after . . . [being] captured on camera tampering

with a TED unit.” See Decl. of Sharon Jindal, Def. Mot. to Dismiss, Ex. 1, at ¶ 33.

                                       c. GPS Monitoring

       To record mileage, speed, and location of Amtrak vehicles, Amtrak also uses GPS

monitoring. See Decl. of Stephen Kendrick, Def. Mot. to Dismiss, Ex. 10, at ¶ 3, ECF No. 8-12.

The GPS units “collect[] data on the following metrics: location; speed; path (with the ability to

play the path on a map); the time period the machine was running; the time period the machine

was moving; the time period the machine idled; and the locations where the machine stopped and

the duration of each stop.” Id. ¶ 4. The GPS data can be used in employee investigations and

discipline. See id. ¶ 5.

                                    B. The Dispute at Issue

       Amtrak is in the process of installing what the Unions call “a video and audio

surveillance system with inward and outward facing cameras and audio recording equipment

used in vehicles used by [Union employees] and supervisors.” See Am. Compl. ¶ 13. This

“DriveCam” system can be used for “coaching” and employee discipline. See Decl. of Jed




                                                 5
Dodd, Pls.’ Mot. for Prelim. Inj., Ex. 1, at ¶ 19, ECF No. 5-1. The “Video Event Recorders”

(VERs) capture video only if “an irregular event triggers recording.”2 See Decl. of Michael

Logue, Def. Mot. to Dismiss, Ex. 4, at ¶¶ 7, 14. When such an event triggers recording, the

DriveCam captures twelve total seconds of audio and video—eight before the event, and four

after—and sends it to an outside organization that reviews it, and, if it meets a “threshold of

concern,” sends it to Amtrak. See id. ¶¶ 15–18. No one can access DriveCams for live

monitoring, and Amtrak cannot remotely trigger recording. Id. at 20–21. In total, the system

saves about five minutes of recording per vehicle per month. Id. ¶ 23. This is the only form of

audio monitoring Amtrak has ever used. See Second Decl. of David Ingersoll, Pls.’ Memo. Opp.

to Def. Mot. to Dismiss, Ex. 2, at ¶ 4. Amtrak has stated that the purposes of the system are to

“ensur[e] the safety of all of [its] . . . employees,” “protect [its] employees and structures from

dynamic threats,” see Letter from Charles Woodcock to Jed Dodd, Def.’s Mot. to Dismiss, Ex.

15, ECF No. 8-17, and record accidents for the purpose of correcting drivers and exonerating

them from false claims, see Decl. of Michael Logue, Def. Mot. to Dismiss, Ex. 4, at ¶ 9.3


       2
          Such events include “crashes, excessive speeding, rapid acceleration, sudden stops, and
irregular maneuvers.” See Decl. of Michael Logue, Def. Mot. to Dismiss, Ex. 4, at ¶ 15, ECF
No. 8-6.
       3
          The Unions contend that Amtrak’s safety justification was contrived after-the-fact, and
that the actual purpose of the system was to limit Amtrak’s exposure to liability and minimize
medical and repair costs. See Pls.’ Mem. of Law in Supp. of Mot. for Prelim. Inj., at 5, ECF No.
4-1. The Unions articulate a distinction without a difference. The DriveCam system is, even
according to Amtrak, aimed at minimizing accidents through safer driving and to record
incidents for the purpose of exonerating drivers—and, in effect, Amtrak—from liability. See
Decl. of Michael Logue, Def. Mot. to Dismiss, Ex. 4, at ¶ 9. A necessary intermediate step
between implementation of the DriveCam system and a decrease in liability and medical and
repair cost is an increase in safe practices. Ultimately, the Unions’ argument amounts to a
contention that Amtrak was not striving for safe practices for the altruistic good of their
employees, but rather for the good of their bottom-line. For purposes of interpreting the
employee safety agreements, it does not matter why Amtrak strives for safety; it matters only that
the agreements’ stated purpose is safety. See Def.’s Mot. to Dismiss, Ex. 2, at 6, ECF No. 8-4;
Def’s Mot. to Dismiss, Ex. 3, at 8, ECF No. 8-5.


                                                  6
Amtrak maintains that the system is not intended for use in employee discipline, but does not go

so far as to say that it will not use it for that purpose. See Def. Mot. to Dismiss, Ex. 18, at 16,

ECF No. 8-20. In support of its aim of protecting its employees and assets, Amtrak points to

BNSF Railway and Union Pacific Railroad, noting that they have “reported significant

reductions in accidents, maintenance/repair costs, and claims from accidents since implementing

DriveCam.” See Decl. of Michael Logue, Def. Mot. to Dismiss, Ex. 4, at ¶ 12.

        The process by which changes in working conditions are negotiated is governed by

statute. Section 6 of the RLA provides that “[c]arriers and representatives of the employees shall

give at least thirty days’ written notice of an intended change in agreements affecting rates of

pay, rules, or working conditions, and . . . [i]n every case where such notice of intended change

has been given . . . working conditions shall not be altered by the carrier until the controversy has

been finally acted upon . . . .” 45 U.S.C. § 156. Amtrak qualifies as a “carrier” under the RLA,

and the Unions qualify as “representatives.” See Am. Compl. ¶¶ 1–3. Plaintiffs allege that

Amtrak’s unilateral installation of the DriveCam video and audio recording system violates

§ 156. See id. ¶ 23. The Unions allege that Amtrak did not engage in negotiations over the

system and, in fact, misleadingly stated that it was required by federal law. See id. ¶¶ 13, 18–19.

They have served Section 6 notices on Amtrak to prohibit DriveCam use, conferenced with

Amtrak, and steadfastly opposed installation. See id. ¶¶ 14–22. The Unions have now come to

this Court seeking a preliminary and permanent injunction to enjoin Amtrak from “installing the

new surveillance equipment” and “implementing the new surveillance regime” at least until the

parties have negotiated pursuant to the RLA. See Am. Compl. Request for Relief; Pls’ Mot. for

Prelim. Inj., at 1.




                                                  7
                                         III. ANALYSIS

                                       A. Legal Standard

       Amtrak moves for dismissal under Rule 12(b)(1) on the basis that the Court lacks subject-

matter jurisdiction over the Unions’ claims. See Def. Mot. to Dismiss. Even if Amtrak had not

so moved, the Court has a sua sponte responsibility to ensure that it indeed has subject-matter

jurisdiction under the Constitution and statute. Maldonado-Torres v. Mukasey, 576 F. Supp. 2d

57, 58 (D.D.C. 2008) (citing Doe by Fein v. Dist. of Columbia, 93 F.3d 861, 871 (D.C. Cir.

1996)). The plaintiff has the burden of proving subject-matter jurisdiction, and its allegations are

not entitled to presumptive truthfulness. Carmona v. Snow, 2007 WL 915220, at *2 (D.D.C.

Mar. 26, 2007) (quoting Mortensen v. First Federal Sav. & Loan Asso., 549 F.2d 884, 891 n.16

(3d Cir.1977)). Indeed, the Court must give the plaintiff’s allegations “closer scrutiny when

resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to

state a claim.” Ludvigson v. United States, 525 F. Supp. 2d 55, 56 (D.D.C. 2007). In doing so,

the Court may consider evidence outside of the pleadings. Herbert v. Nat’l Acad. of Scis., 974

F.2d 192, 197 (D.C. Cir. 1992); Al-Owhali v. Ashcroft, 279 F. Supp. 2d 13, 21 (D.D.C. 2003).

       “Federal courts are courts of limited jurisdiction. They possess only that power

authorized by Constitution and statute . . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 511

U.S. 375, 377 (1994). Congress has the “prerogative to restrict the subject-matter jurisdiction of

federal district courts” based on the types of claims brought by particular plaintiffs. Arbaugh v.

Y&H Corp., 546 U.S. 500, 515 n.11 (2006). Congress has restricted the subject-matter

jurisdiction of courts adjudicating certain cases under the RLA. See 45 U.S.C. § 153 First (q);

Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 93 (1978); accord Consol. Rail Corp. v. Ry. Labor

Execs.’ Ass’n, 491 U.S. 299, 304 (1989). When it comes to “minor disputes” under the RLA—




                                                 8
which concern the interpretation of contractual rights—the district courts have only limited

review after the National Railroad Adjustment Board has issued an arbitral decision. See Consol.

Rail Corp., 491 U.S. at 302–04. However, federal district courts maintain jurisdiction over

“major disputes,” which concern the creation of contractual rights. See id. at 302–03.

Historically, the line distinction between major and minor disputes came down to the “size” of

the issues.4 Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723–24 (1945), adhered to on reh’g,

327 U.S. 661 (1946). The “major disputes” concerned “large issues” that were more likely to

cause a party to resort to economic self-help (for example, a union strike), justifying greater

judicial recourse. Id. The minor disputes, in comparison, “affect the smaller differences which

inevitably appear in the carrying out of major agreements and policies or arise incidentally in the

course of an employment. They represent specific maladjustments of a detailed or individual

quality. They seldom produce strikes, though in exaggerated instances they may do so.” Id. at

724. At any rate, whether the Court has subject-matter jurisdiction here depends on whether the

dispute at issue is a “major” or “minor” one as defined by the RLA.

       To determine whether the dispute is major or minor under the RLA, courts look beyond

the complaint to the arguments of the party asserting a contractual basis for the disputed action—

here, Amtrak. See Consol. Rail Corp., 491 U.S. at 305–07. If the actions can “arguably” be

justified by the existing agreement, the dispute is minor and the courts do not have subject-matter

jurisdiction. See id. at 306–07 (internal citation omitted). “Verbal formulations of this standard

have differed over time and among the Circuits: phrases such as ‘not arguably justified,’


       4
         To be sure, the historical perspective presented here is meant only to inform the law; the
Supreme Court has eschewed the classification of disputes as major or minor based on “a case-
by-case determination of the importance of the issue presented or the likelihood that it would
prompt the exercise of economic self-help.” See Consol. Rail Corp. v. Ry. Labor Execs.’ Ass’n,
491 U.S. 299, 305 (1989).


                                                 9
‘obviously insubstantial,’ ‘spurious,’ and ‘frivolous’ have been employed. . . . These locutions

are essentially the same in their result. They illustrate the relatively light burden which the

railroad must bear in establishing exclusive arbitral jurisdiction under the RLA.” Id. (internal

citations and quotations omitted). So, although the plaintiff has the burden of establishing

subject-matter jurisdiction with facts showing jurisdiction, “[t]he employer [also] bears a

‘relatively light burden’ in persuading the court that the action is arguably justified” by the

contract in light of the facts. U.S. Airlines Pilots Ass’n ex rel. Cleary v. US Airways, Inc., 859 F.

Supp. 2d 283, 303 (E.D.N.Y. 2012). Accordingly, “there is a strong presumption in favor of

finding a dispute to be minor.” Oakey v. U.S. Airways Pilots Disability Income Plan, 839 F.

Supp. 2d 225, 231 (D.D.C. 2012), aff’d, 723 F.3d 227 (D.C. Cir. 2013). “[I]f doubt arises about

the classification of a dispute, the dispute is also considered to be minor.” Bhd. of Maint. of Way

Empls. v. Burlington N. Santa Fe R.R., 270 F.3d 637, 639 (8th Cir. 2001); see also Oakey, 839 F.

Supp. 2d at 231.

       If the Court does not have subject-matter jurisdiction, it cannot afford Plaintiffs any

relief—injunctive or otherwise. See Zukerberg v. D.C. Bd. of Elections & Ethics, 999 F. Supp.

2d 79, 82 (D.D.C. 2013). Indeed, it “may not . . . ‘resolve contested questions of law when its

jurisdiction is in doubt.’” Id. (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101

(1998)).

                         B. The Classification of the DriveCam System

       Given that subject-matter jurisdiction hinges on the type of dispute between Amtrak and

the Unions, the question before the Court is whether Amtrak’s installation of the DriveCam

audio and video recording equipment, coupled with how events are actually captured and could

be used to discipline employees, gives rise to a “major” or “minor” dispute. Stated differently,




                                                 10
the Court has subject-matter jurisdiction over the matter only if the program is not arguably

justified by the existing agreements between the Unions and Amtrak. In determining whether

the program is arguably justified by existing agreements, the Court does not use ordinary,

common-law tools of contract interpretation. See Consol. Rail Corp. v. Ry. Labor Executives’

Ass’n, 491 U.S. 299, 311–12 (1989); Kan. City S. Ry. Co. v. Bhd. of Locomotive Eng’rs &

Trainmen, No. 13-838, 2013 WL 3874513, at *4 (W.D. La. July 25, 2013). Instead, it looks to

“the common law of a particular industry or of a particular plant,” in this case, the “whole

employment relationship” between Amtrak and the Unions. Consol. Rail Corp., 491 U.S. at 312.

This is because a collective-bargaining agreement is more than an ordinary contract; “[i]t is a

generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate.” Id.

at 311–12 (quoting Transp. Union v. Union Pac. R. Co., 385 U.S. 157, 161 (1966)).

Accordingly, “collective-bargaining agreements may include implied, as well as express, terms,”

and “‘practice, usage and custom’” of the parties is instructive on deciphering the implied terms,

just as it is on interpreting express terms. See id. at 312 (quoting Transp. Union, 385 U.S. at

161). An agreement cannot be implied based on prior isolated “occurrences of similar conduct,”

but requires conduct “understood by the parties to at least impliedly serve as if part of the

collective bargaining agreement.” United Transp. Union, Local Lodge No. 31 v. St. Paul Union

Depot Co., 434 F.2d 220, 222 (8th Cir. 1970) (citing United Steelworkers of America v. Warrior

& Gulf Navigation Co., 363 U.S. 574 (1960); accord Air Line Pilots Ass’n Int’l v. E. Air Lines,

Inc., 863 F.2d 891, 897 (D.C. Cir. 1988).

       Amtrak advances two overarching arguments to support its claim that the DriveCam

system arises from rights in existing contracts. First, it argues that the CBA’s explicit terms

allow Amtrak to implement the program. See Def.’s Mot. to Dismiss at 15–17. Second, it




                                                 11
argues that the program is in line with longstanding practice and the Unions’ acquiescence,

making it part of a broader “implied contract.” See id. at 17–20. The Court will address whether

these arguments meet Amtrak’s light burden for demonstrating a dispute over contractual terms

in turn.

                                    1. Express Terms of the CBAs

           Amtrak argues that the existing CBAs contain express provisions showing that it “has the

right to implement rules and procedures that are designed to promote safety, which is the primary

reason for Amtrak’s implementation of the DriveCam technology.” See Def.’s Mot. to Dismiss

at 15. In support of its argument, it cites the “safety rules” referenced in the CBAs and the

parties’ commitments to ensure that they will be “properly applied,” the Unions’ proposal to

amend existing CBAs to disallow the DriveCam technology, and the lack of any express

contractual prohibition. See id. In determining whether these contentions are sufficient so as to

not be characterized as “frivolous,” “spurious,” or “obviously insubstantial,” the Court does not

judge the merits of Amtrak’s contractual argument, but does take a “peek” at the justification to

determine whether it is arguably rooted within the terms of the contract. Oakey, 839 F. Supp. 2d

at 231–32. Courts generally look initially to the traditional tools of contractual interpretation in

interpreting express terms of CBAs. See, e.g., Int’l Ass’n of Machinists & Aerospace Workers v.

U.S. Airways, Inc., 358 F.3d 255, 261–62 (3d Cir. 2004). However, beyond that first step courts

seem more inclined to look past the black letter provisions to the parties’ assumptions about

permissible actions. See Air Line Pilots Ass’n Int’l, 863 F.2d at 897. For example, in Air Line

Pilots Association International the court looked beyond the black letter of the contract to the

parties’ assumptions. There, the parties’ collective bargaining agreement contained “extensive

procedures whereby union members may be furloughed.” See id. Although the contract




                                                  12
contained no provision stating that furloughs were acceptable, “[t]he parties’ explicit bargain

over furlough procedures plainly rest[ed] on the premise that furloughs are permissible,” and

“thus a dispute over furloughs appear[ed] to be at least arguably comprehended within the . . .

collective bargaining agreement.” See id. Thus, the D.C. Circuit reversed the lower court’s

finding that the terms of the contract did not arguably support a furlough. See id. at 898.

        The Circuit’s holding in Air Line Pilots Association International favors dismissal here.

As Amtrak has noted, the CBAs do not contain any express provision constraining Amtrak’s

authority to promulgate, implement, or enforce safety rules. The CBAs do however set forth

identical safety agreements with the purpose of “ensuring compliance with Amtrak’s Safety

Rules.” See Def.’s Mot. to Dismiss, Ex. 2, at 6; Def’s Mot. to Dismiss, Ex. 3, at 8. Included

within those agreements, under the heading “Work Place Safety,” is the express agreement that

“Amtrak and the [Unions] agree to use their best efforts to ensure that all . . . Amtrak safety rules

are properly applied.” Def.’s Mot. to Dismiss, Ex. 2, at 9; Def.’s Mot. to Dismiss, Ex. 3, at 10.

So, although there are no express provisions providing for particular enforcement mechanisms

for Amtrak’s safety rules, the CBAs contemplate that Amtrak will implement safety rules and

that the parties will take measures to ensure that they are followed. After all, if Amtrak does not

enforce its safety rules, employees are justified to discontinue work. See Def.’s Mot. to Dismiss,

Ex. 2, at 9 (“It shall not be a violation of . . . any company rule for employees to refuse to . . .

work . . . when any condition exists that violates an . . . Amtrak Safety Rule . . . .”); Def.’s Mot.

to Dismiss, Ex. 3, at 10–11. It is not “frivolous” or “obviously insubstantial” to conclude that the

installation of DriveCam VERs constitute part of Amtrak’s “best efforts” to ensure that its safety

rules are properly applied. Indeed, Amtrak has stated that the primary purposes of the DriveCam

system include the safety of its employees and equipment, and notes that similar DriveCam




                                                  13
systems have empirically reduced accidents for other companies, see Decl. of Michael Logue,

Def. Mot. to Dismiss, Ex. 4, at ¶ 12. It is also not frivolous for Amtrak to contend that the CBAs

contemplated unilateral promulgation of certain safety rules, and the unilateral implementation of

measures to ensure enforcement.

       Again, it is not for the Court to say whether the CBAs permit the installation of

DriveCam VERs. See Consol. Rail Corp., 491 U.S. at 320 (“[I]n no way do we suggest that [the

union] is or is not entitled to prevail before the Board on the merits of the dispute.”). But after

taking a “peek” at the CBAs—with the Circuit’s Air Line Pilots Association International

decision in mind—the Court cannot say that Amtrak’s arguments lack merit to the point of being

frivolous.

                             2. Purported Implied Terms of the CBAs

       The practices that Amtrak argues constitute implied terms of the CBAs confirm the

finding that the Court lacks subject-matter jurisdiction over these claims in two ways. First, the

“practice, usage and custom” inform the Court’s analysis of the express terms of the CBAs. As

noted above, “it is well established that the parties’ ‘practice, usage and custom’ is of

significance in interpreting their agreement.” Consol. Rail Corp., 491 U.S. at 311 (quoting

Transp. Union, 385 U.S. at 161). The past practices of the parties confirm the Court’s reasoning

with respect to the explicit terms in the contract and further show that Amtrak’s argument is not

frivolous. Amtrak has unilaterally promulgated rules and enforced them for years, see Decl. of

Susan K. Reinertson, Def. Mot. to Dismiss, Ex. 5, at ¶ 5 (stating that “employee policies and

procedures . . . are created and implemented by Amtrak management”), and, although they

quarrel with the extent of their knowledge, the Unions had knowledge of the promulgation and

enforcement, see Decl. of Jed Dodd, Pl.’s Mem. in Opp. to Def.’s Mot. to Dismiss, Ex. 1, at ¶ 12.




                                                 14
This further demonstrates that Amtrak’s argument that it was entitled to install the DriveCam

system is not frivolous, spurious, or obviously insubstantial.

       Second, the parties’ past practices independently show an arguable basis for Amtrak’s

actions. As noted above, the only relevant past conduct by the parties is that “which has attained

the dignity of a relationship understood by the parties to at least impliedly serve as if part of the

collective bargaining agreement.” Air Line Pilots Ass’n Int’l, 863 F.2d at 897 (internal

quotations omitted) (citing United Transp. Union, Local Lodge No. 31, 434 F.2d at 22–23). In

addition to conduct, courts look for “mutual understanding, either expressed or implied,” and

consider “factors . . . [including] the mutual intent of the parties, their knowledge of and

acquiescence in the prior acts, along with evidence of whether there was joint participation in the

prior course of conduct, all to be weighed with the facts and circumstances in the perspective of

the present dispute.” Id. (internal quotations omitted) (citing United Transp. Union, Local Lodge

No. 31, 434 F.2d at 22–23).

       The Unions quarrel with the notion that any implied terms of “surveillance” exist at all.

See Pls.’ Mem. Opp. to Mot. to Dismiss, at 10–11, ECF No. 13. They contend that Amtrak “has

not shown any prior action that involves video and audio surveillance monitoring of [Union

employees] at work,” monitoring “over an extended period of time,” or for the purposes that

Amtrak is recording. See id. at 18. In fact, they argue that Amtrak has never previously used

any form of audio surveillance at all. See id. at 6. With respect to the video monitoring, the

Unions contend that their understanding was informed by the Department of Homeland Security

funding, and that the video surveillance—described as “security systems”—would be used for

the purpose of protecting against much larger security threats than car accidents. See id. at 19.

They further argue that the TED system was used for security, not employee discipline, and




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monitors employees only when they enter and exit work. See id. at 21. Finally, the Unions

distinguish the GPS monitoring by noting that it does not monitor what is actually happening

inside the vehicle, and who is actually in the vehicle. See id. at 22.

       In light of the Unions’ argument, the Court must address the threshold question of

whether any implied CBA terms exist at all. The Unions may be correct that they have not

acquiesced to any type of monitoring directly akin to the DriveCam system. However, they have

undoubtedly acquiesced to “some monitoring.” See Kan. City S. Ry. Co. v. Bhd. of Locomotive

Eng’rs & Trainmen, 2013 WL 3874513, at *6 (W.D. La. July 25, 2013). They have acquiesced

to video surveillance for the purpose of employee and public safety and security, for example.

Their understanding that the purpose of the system was to monitor broader safety threats is

irrelevant to the question of whether there is an implied term in the CBAs pertaining to some

video monitoring. The same reasoning applies to the TED system; although the Unions’

acquiescence does not mean that they necessarily consented to round-the-clock surveillance, it

does show that they acquiesced to some video monitoring. The same is true for the GPS system

and its relatively broad collection of data about the operation of Amtrak vehicles.

        “What is not clear is whether [the Unions] have consented to” the particular type of

monitoring embodied in the DriveCam system, and that inquiry is subject to the presumption in

favor of Amtrak. See id. Before analyzing whether the DriveCam system is “arguably” within

the scope of the implied terms of the CBAs, it is necessary to roughly identify the contours of the

elusive implied term. The years of video monitoring show that the Unions have consented to

some forms of video monitoring for safety and security purposes. The TED system—which has

been in place since at least 2006—similarly shows that the Unions have consented to visual

monitoring to ensure proper recording of time and access by personnel. The GPS system shows




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that the Unions have consented to having employees’ routes and vehicles monitored. The

Unions have continued to acquiesce despite knowledge of the technology, and members being

subjected to discipline based on it. Moreover, although the Unions place particular emphasis on

the Department of Homeland Security’s partial funding of the Amtrak video surveillance system,

they never really explain why. To the extent that the Unions acquiesced because the system is

used for security, the funding source does not seem to matter. So, at a very minimum, the CBAs

contain an implied term permitting some level of monitoring for security purposes, through

advanced technologies including, at some locations, continuous video surveillance.

       The remaining question is whether Amtrak’s claim that DriveCam is justified by the

implied terms of the CBAs is frivolous. In Consolidated Rail Corp., the company implemented a

program requiring employees to submit to drug testing through urine samples. See 491 U.S. at

313–14. The Supreme Court noted that the parties’ longstanding practice of “routinely . . .

requir[ing] its employees to undergo physical examination under the supervision of its health

services department” constituted an implied term of their collective-bargaining agreement,

“established by longstanding past practice and acquiesced in by the [u]nion.” See id. The Court

went on to analyze the implied term, emphasizing three aspects of the practice of routine

examination. First, the company “required its employees to undergo periodic physical

examinations,” which routinely required a urinalysis for blood sugar and albumin. See id. at

312–13. Second, the company required similar examinations for furloughed employees

returning to duty. See id. at 313. Third, when employees had certain conditions (for example,

they had previously suffered a heart attack), it required follow-up examinations. See id. If an

employee did not meet the company’s requirements during the physical, they could be forced to

take leave without pay until it was corrected. See id. In finding that the unions also arguably




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acquiesced to drug testing, the Court emphasized that the company ordered urinalysis in cases

where the doctor suspected drug use, and required screening when an employee was suspended

for drug use. See id.

       Even more on point, in Kansas City Southern Railway Co. v. Brotherhood of Locomotive

Engineers & Trainmen, with nearly identical facts to the case before the Court, the Western

District of Louisiana found the use of internally-facing cameras that could capture some video

arguably within the implied terms of the parties’ collective-bargaining agreement. 2013 WL

3874513, at *6. The court there found that the acquiescence of “some monitoring” made the

company’s argument nonfrivolous, because the company had previously used stationary

surveillance cameras, inward-pointing surveillance cameras in certain vans, and procedures for

monitoring phone calls between train crew management and train crew employees. See id. at *5.

       Once again without passing on the merits, a “peek” at the implied terms of the contract

leaves no doubt that Amtrak’s arguments are not frivolous, and therefore that the dispute is

minor. Like the stationary video monitoring, the DriveCam is used primarily for safety. And,

even though Amtrak has made clear that the system could be used for discipline, the Unions have

known that other video monitoring can be used for discipline and have not objected. The same is

true for TEDs and GPS monitoring; the Unions have acquiesced to certain periods and levels of

monitoring at work through advanced technologies. In sum, the Unions have acquiesced to

workplace monitoring of employees using advanced technologies which include, at some

locations, continuous video surveillance and, in vehicles, GPS technology. Amtrak claims that

the DriveCam system is an incremental change that falls within the Unions’ acquiescence. The

Unions disagree, insisting that the system has a completely new element of monitoring—audio

recording—and is so pervasive as to be outside the scope of its previous acquiescence. The




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question of where the system falls on the continuum of acquiescence is subject to proper

argument and is therefore, by definition, a minor dispute. It is thus beyond the purview of the

Court in light of its limited subject-matter jurisdiction.


                                        IV. CONCLUSION

       For the foregoing reasons, Amtrak’s motion to dismiss (ECF No. 8) is GRANTED, and,

because this Court lacks jurisdiction, Unions’ Motion for a Preliminary Injunction (ECF No. 4)

must be DENIED. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.


Dated: November 16, 2016                                          RUDOLPH CONTRERAS
                                                                  United States District Judge




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