
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 96-1378                             DOUGLAS T. WIGHTMAN, ET AL.,                               Plaintiffs, Appellants,                                          v.                         SPRINGFIELD TERMINAL RAILWAY COMPANY                           AND UNITED TRANSPORTATION UNION,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Harold A. Ross with  whom Ross & Kraushaar Co., L.P.A., Shelley B.            ______________            ____________________________  __________        Kroll, and Segal, Roitman & Coleman were on brief for appellants.        _____      ________________________            John R. Nadolny  for appellee Springfield Terminal Railway Co. and            _______________        Norton N.  Newborn with whom Norton  N. Newborn Co., L.P.A.,  James F.        __________________           ______________________________   ________        Freeley, Jr. and Freeley  & Freeley were on brief for  appellee United        ____________     __________________        Transportation Union.                                 ____________________                                  November 19, 1996                                 ____________________                      STAHL, Circuit Judge.   Appellants, Brotherhood  of                      STAHL, Circuit Judge.                             _____________            Locomotive  Engineers and several  of its  individual members            ("BLE") sought to  enjoin enactment  of a clause  in a  newly            negotiated collective bargaining agreement  between Appellees            United Transportation Union ("UTU") and  Springfield Terminal            Railway Co. ("ST"), as  a violation of the Railway  Labor Act            ("RLA"), 45 U.S.C.    151-188.  The district court denied the            injunction  and granted summary  judgment for  UTU and  ST on            BLE's complaint.   Wightman v. Springfield  Terminal Ry. Co.,                               ________    _____________________________            915 F. Supp. 503, 507 (D. Mass. 1996).  BLE now appeals.                                      Background                                      Background                                      __________                      The  RLA governs  labor  and collective  bargaining            arrangements between carriers, or  employers, and unions.  ST            is a railroad operator located in Springfield, Massachusetts,            and a carrier for  purposes of the RLA.  BLE  and UTU are two            of  several  trade  unions  who  have  collective  bargaining            agreements with ST.  The  individual plaintiffs in this  case            belong to BLE.      The RLA authorizes carriers and unions to            establish union shops.  A union shop in the railroad industry            simply means that in order to remain employed with a railroad            company, employees  must belong to  one of the  national, RLA            recognized  railroad   unions.     See  45  U.S.C.       152,                                               ___            Eleventh(a)  and (c).1    ST and  the  unions with  which  it                                            ____________________            1.  45 U.S.C.    152 has  been drafted  in subsections  First            through Eleventh.  Section 152, Eleventh contains subsections            a through d.  We note the unusual numbering scheme to explain                                         -2-                                          2            maintains collective bargaining agreements have established a            union shop.                        Employment in the railroad industry revolves around            crafts or classes of work, each of which is represented  by a            different  union.    Train   service  and  engineer   service            constitute  two   such  crafts.     The   former  encompasses            conductors, brakemen,  trainmen and  yardmen, and  the latter            includes primarily locomotive engineers.   UTU represents the            train service  craft and BLE represents  the engineer service            craft.                            By  practice,  junior  engineers  advance  from the            ranks of the train service employees.  Over the course of any            given  year,  however,  the   amount  of  engineer  work  may            fluctuate.   During periods of reduced  engineer work, junior            engineers may have to return temporarily to train  service in            order to remain employed.2  Junior engineers, therefore, have            an  economic  interest  in  maintaining  their  train service            seniority.                        Prior  to  1995, the  UTU-ST  collective bargaining            agreement  allowed non-UTU  member engineers  to continue  to            accrue  train  service  seniority.   In  1995,  however,  UTU            negotiated a  provision known  as Article 21,  which requires                                            ____________________            our citation.              2.  In its reply brief, BLE appears to hint that the  ebb and            flow  of train service employees to and from engineer service            occurs with less regularity today than in prior eras.                                            -3-                                          3            that employees moving from  train service to engineer service            pay dues to UTU in  order to maintain and continue  to accrue            their train service seniority.   When BLE objected to Article            21,  ST offered  it a similar  provision which  BLE rejected,            apparently  believing  it  to  be  of  little  value  to  its            membership.                        BLE then challenged  Article 21 on RLA grounds.  It            sought preliminary injunctive relief which the district court            denied.   Subsequently, on cross motions,  the district court            granted summary judgment in favor of UTU and ST.  This appeal            followed.                                   Standard of Review                                  Standard of Review                                  __________________                      We review  the award  of summary judgment  de novo.                                                                 __ ____            Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 11 (1st Cir. 1996).            ____________    _____________            Summary  judgment is appropriate in the  absence of a genuine            issue  of material fact, when the moving party is entitled to            judgment as  a matter of  law.   See Fed. R.  Civ. P.  56(c).                                             ___            Neither   party  may   rely  on  conclusory   allegations  or            unsubstantiated  denials,  but must  identify  specific facts            deriving   from  the   pleadings,  depositions,   answers  to            interrogatories,  admissions  and  affidavits to  demonstrate            either the  existence or absence  of an  issue of fact.   See                                                                      ___            Fed. R. Civ. P. 56(c) and (e).                      Cross  motions for  summary judgment  neither alter            the  basic Rule 56 standard, nor warrant the grant of summary                                         -4-                                          4            judgment per se. See  Wiley v. American Greetings  Corp., 762                     ___ __  ___  _____    _________________________            F.2d  139, 141 (1st Cir. 1985).  Cross motions simply require            us  to  determine  whether  either of  the  parties  deserves            judgment as  a matter of law on  facts that are not disputed.            Id.    As always,  we resolve  all  factual disputes  and any            ___            competing, rational inferences in the light most favorable to            the party  against whom  summary judgment  has entered.   Den                                                                      ___            Norske Bank v.  First Nat'l  Bank of Boston,  75 F.3d 49,  53            ___________     ___________________________            (1st Cir. 1996).                                        Discussion                                      Discussion                                      __________                      BLE raises  three basic  arguments,  each of  which            involves a different statutory provision  of the RLA.  First,            BLE contends, Article 21 violates the prohibition of mandated            dual unionism  under 45 U.S.C.    152, Eleventh(c).   Second,            BLE   urges,  Article   21   impermissibly  interferes   with            employees' rights to organize and choose their own collective            bargaining representative  under 45 U.S.C.     152, Third and            Fourth.   Finally,  BLE asserts,  the RLA,  45 U.S.C.    156,            required  UTU  and ST  to provide  BLE, an  interested party,            notice of  their contract negotiations and  an opportunity to            participate in  them.   We conclude  that the  district court            ably analyzed each of BLE's arguments and properly found them            lacking in substance.  We affirm.                      A.  45 U.S.C.   152, Eleventh(c)                      ________________________________                                         -5-                                          5                      According to  BLE, Article 21 violates  45 U.S.C.              152,  Eleventh(c), part of  the union shop  provisions of the            RLA.  Analysis of BLE's argument requires a brief detour into            the background  of the  union shop provisions  generally, and            how   152, Eleventh(c) fits into the union shop scheme.                        Under 45  U.S.C.    152, Eleventh(a),  carriers and            unions may  establish union shops.   Section 152, Eleventh(a)            specifically  provides  that carriers  and  unions  may "make            agreements, requiring as a condition of continued employment,            that  . . . all  employees shall become  members of the labor            organization  representing their  craft or  class."   Read in            isolation, the  plain language of this  provision would allow            carriers and unions to require employees to belong not to the            union  of their  choice, but  to the  union certified  as the            representative of their craft or class.                      Organized labor petitioned  Congress for the  union            shop  option  in  order  to eradicate  the  problem  of "free            riders,"  railroad employees who do not pay dues to any union            but  receive whatever benefits collective bargaining confers.            See generally Pennsylvania R.R. Co. v. Rychlik, 352 U.S. 480,            ___ _________ _____________________    _______            489-94  (1957).   In  acceding to  labor's request,  however,            Congress recognized that the intercraft mobility not uncommon            in the railroad  industry could pose a  problem for employees            in  a  union shop.   Under     152, Eleventh(a),  an employee            shuttling  between train  service and engineer  service could                                         -6-                                          6            either  be forced to change unions  or to belong and pay dues            to  two unions until reaching a level of seniority sufficient            to  stabilize him  as  an engineer.    As the  Supreme  Court            pointed out,  "[t]he former alternative would,  of course, be            expensive and sometimes impossible, while the latter would be            complicated and  might mean the  loss of seniority  and union            benefits."  Id. at 490.       Congress  attempted  to  tailor                        ___            union shops to accommodate intercraft mobility through   152,            Eleventh(c).  That subsection provides, "[t]he requirement of            membership in a labor organization in [a union shop] shall be            satisfied  . .  .  if said  employee  shall hold  or  acquire            membership in any one of the labor organizations, national in            scope, organized in accordance with this chapter."  45 U.S.C.              152, Eleventh(c).   On its face,   152  Eleventh(c) appears            to contradict   152, Eleventh(a) by allowing any  employee in            any  union  shop  to belong  to  any  of  the RLA  recognized            railroad unions.                       The  purpose   of     152,   Eleventh(c),  however,            significantly circumscribes its language.   See Rychlik,  352                                                        ___ _______            U.S.  at 488, 492; see  also Landers v.  Nat'l R.R. Passenger                               ___  ____ _______     ____________________            Corp.,  814  F.2d  41,  44-45 (1st  Cir.  1987)  (recognizing            _____            limited applicability of   152, Eleventh(c)), aff'd, 485 U.S.                                                          _____            652 (1988).  Despite its broad language, "the only purpose of            Section  2, Eleventh(c)  was  a very  narrow one:  to prevent            compulsory dual  unionism or  the necessity of  changing from                                         -7-                                          7            one  union to  another when  an employee  temporarily changes            crafts."   Landers v.  Nat'l R.R. Passenger  Corp., 485  U.S.                       _______     ___________________________            652, 657-58  (1988); Rychlik, 352  U.S. at 492.  Section 152,                                 _______            Eleventh(c) does  not exist  to benefit unions  by permitting            them to recruit  members from the ranks  of other established            unions, or to provide railroad employees with a general right            to  join   unions  other   than  the   designated  bargaining            representative  of their  craft,  except to  meet the  narrow            problem of intercraft mobility in a union shop.  Rychlik, 352                                                             _______            U.S. at 493.                          Bearing  in mind the  context and purpose  of   152            Eleventh(c), we turn to  BLE's challenge to Article 21.   BLE            essentially attacks  Article 21 from two angles.   First, BLE            contends, Article 21 constitutes  either a   152, Eleventh(a)            union  shop agreement that violates    152, Eleventh(c) or an            amendment to  the existing  ST-UTU agreement that  violates              152, Eleventh(c).  Second, BLE argues, Article  21 will upset            "the cost  sharing scheme which was continued and fostered by            the 1951 union shop amendments."  We disagree.                        On its  face, Article  21 can neither  constitute a            union shop agreement by  itself, nor an amendment to  the ST-            UTU  agreement that  violates  Eleventh(c).   Nothing in  the            language  of Article  21 requires  membership in  UTU or  any            other union as a condition of employment.  See Brotherhood of                                                       ___ ______________            Locomotive Eng'rs v.  Kansas City  S. Ry., 26  F.3d 787,  793            _________________     ___________________                                         -8-                                          8            (8th  Cir.)  (  152,  Eleventh(c) applies  only  to a    152,            Eleventh(a) union  shop agreement), cert. denied,  115 S. Ct.                                                _____ ______            320 (1994); Dempsey v. Atchison, Topeka and Santa Fe Ry. Co.,                        _______    _____________________________________            16 F.3d 832, 838 (7th Cir.) (same), cert. denied, 115  S. Ct.                                                _____ ______            82 (1994).  Article 21 does not require an engineer to choose            between  dual union  membership or  unemployment; Article  21            simply  requires an engineer to  choose whether to retain and            continue  to accrue  seniority  in the  train service  craft.            Wightman, 915 F. Supp. at 506.              ________                      In  Dempsey v.  Atchison, Topeka  and Santa  Fe Ry.                          _______     ___________________________________            Co.,  16 F.3d 832, 838  (7th Cir. 1994),  the Seventh Circuit            ___            faced  a BLE  challenge  to a  provision requiring  engineers            desirous of accumulating  additional train service  seniority            to  pay dues  to UTU.   Failure  to pay,  however, would  not            affect accrued seniority.  In examining whether the provision            constituted  a  union  shop  agreement,  the Seventh  Circuit            relied in part on the fact that it did not require payment of            dues to  UTU in order  to retain accrued  seniority, implying            that  such   a  provision  might  constitute   a  union  shop            provision.   Id. at 838 (citing NLRB v. Manitowoc Engineering                         ___                ____    _____________________            Co.,  909 F.2d  963, 969-71  (7th Cir.  1990), cert.  denied,            ___                                            _____  ______            Clipper  City Lodge No. 516  v. NLRB, 498  U.S. 1083 (1991)).            ___________________________     ____            Ultimately, the  court concluded that the  provision at issue            did not  create any  conditions of continued  employment, and                                         -9-                                          9            therefore, did not constitute a   152, Eleventh(a) union shop            agreement.  Id.                          ___                      In our view,  the extra step Article  21 takes with            respect to  accrued seniority does not  create any conditions            on employment  different from the  provision in Dempsey.   As                                                            _______            indicated,  nothing  on  the  face  of  Article  21  requires            employees  to  belong to  UTU  in order  to  remain employed.            Despite  the fact  that Article  21 takes  the extra  step of            conditioning  seniority retention  and  accrual on  continued            dues payment, an engineer who chooses  BLE over UTU satisfies            either of the UTU-ST  or BLE-ST union shop requirements.   To            the extent, therefore, that  Dempsey implies that a provision                                         _______            such as Article 21 might constitute a union shop agreement or            amendment, we respectfully disagree.                         BLE, however, asserts that engineers who choose BLE            over UTU run the  risk of unemployment when shuttled  back to            train  service,  since  they   will  have  no  train  service            seniority.   According to BLE, this  effectively forces those            engineers at the  lower end  of the  engineer seniority  list            either to belong to UTU and BLE, or to UTU instead of BLE, as            a  condition of continued employment at ST.  BLE asserts that              152, Eleventh(c) allows a railroad employee in a union shop            to  change  membership to  any  other  RLA recognized  union,            "without  putting   himself  out  of   compliance  with   the            membership requirement  of a  valid union shop  agreement and                                         -10-                                          10            thereby  cause a  loss of  seniority and  employment rights."            BLE's argument  requires  us to  determine  whether      152,            Eleventh(c), in protecting  against compulsory dual unionism,            elevates  seniority  into   a  statutorily  protected   right            employees may take with them as they move from craft to craft            and union to union.                            By  its own  language,  the  RLA governs  relations            between   carriers,   unions  and   employees,  and      152,            Eleventh(c)  dictates  the  limits  of  what carriers  and/or            unions can demand of employees in a union shop.  Within those            parameters,  which include  a prohibition on  compulsory dual            unionism, the RLA makes no  mention of seniority, and notably            fails to designate seniority as a protected employment right.                      In the absence  of a  legislative pronouncement  to            the contrary, union contracts  typically define the scope and            significance of seniority rights.  Aeronautical Indus.  Dist.                                               __________________________            Lodge v.  Campbell, 337 U.S. 521, 526 (1949); Trailmobile Co.            _____     ________                            _______________            v.  Whirls,  331  U.S.  40,  53   n.21  (1947).    Seniority,                ______            therefore,  does   not   stem  from   the   employer-employee            relationship and by extension become an employment right, but            rather  from  either  a statute  or  the  four  corners of  a            collective bargaining agreement, in this case between a union            and  a carrier.  National Labor Relations Bd. v. Whiting Milk                             ____________________________    ____________            Corp., 342 F.2d  8, 10-11 (1st Cir. 1965).  It is by now well            _____                                         -11-                                          11            established  that  in  the  absence of  a  contract  creating            seniority rights, they do not exist.  See Dempsey, 16 F.3d at                                                  ___ _______            839;  United Food  & Commercial  Workers Union  v. Gold  Star                  ________________________________________     __________            Sausage  Co., 897 F.2d 1022, 1026 (10th Cir. 1990); Cooper v.            ____________                                        ______            General  Motors Corp.,  651  F.2d 249,  250  (5th Cir.  1981)            _____________________            (citing  cases);  Local 1251  Int'l  Union  of United  Auto.,                              ___________________________________________            Aircraft and Agric. Workers of Am. UAW v. Robertshaw Controls            ______________________________________    ___________________            Co.,  405  F.2d  29,  32-33  (2d  Cir. 1968)  (citing  cases)            ___            (overruling prior circuit precedent to the contrary).                      Seniority,   like   any   other  benefit   deriving            exclusively  from collective bargaining  agreements, does not            vest  in employees.  Robertshaw, 405 F.2d at 33; McMullans v.                                 __________                  _________            Kansas, Okla. & Gulf Ry.,  229 F.2d 50, 53 (10th  Cir. 1956).            ________________________            Instead,  seniority rights  are subject  to revision  or even            abrogation  with  the  termination  or renegotiation  of  the            collective bargaining  agreement.3  Dempsey, 16  F.3d at 839;                                                _______            Robertshaw, 405 F.2d at  33; McMullans, 229 F.2d at 54.   Any            __________                   _________            rights employees  have  in  seniority,  therefore,  are  tied            directly  to  the terms  of the  labor agreement  between the            carrier and the  union representing their craft.   Nothing in                                            ____________________            3.  The Dempsey opinion ultimately  views seniority as we do,                    _______            despite  that court's  implication that  a provision  such as            Article 21 might constitute  a union shop agreement.   See 16                                                                   ___            F.3d at 838-39.   Dempsey concludes  that seniority, born  of                              _______            the collective  bargaining agreement, is subject  to revision            or abrogation.  16 F.3d at 839.  We do not interpret Dempsey,                                                                 _______            therefore, as supporting BLE's argument.                                           -12-                                          12            the  RLA  changes  this  fundamental  tenet  of  labor  law.4            Dempsey, 16 F.3d at 840; McMullans, 229 F.2d at 53.             _______                  _________                      We recognize that Article 21 may make it attractive            for at least some engineers to choose UTU over BLE.   We stop            short, however,  of equating a union's successful negotiation            of a potential competitive  advantage over another union with            the  kind  of compulsory  dual  unionism    152,  Eleventh(c)            exists  to prevent.    See  Whiting  Milk,  342  F.2d  at  11                                   ___  _____________            ("Obtaining a benefit for employees may well encourage others            to join  a union but  that side effect  does not violate  the            [NLRB], for 'The truth is that  the union is a service agency            that probably encourages membership  whenever it does its job            well.'") (quoting Local 357, Int'l Bhd. of Teamsters v. NLRB,                              __________________________________________            365  U.S. 667,  675-76  (1961)).   We  conclude that     152,            Eleventh(c)  does not  provide  the statutory  basis to  vest            railroad employees with their accrued seniority.                        Finally, BLE  asserts that Article  21 "upsets  the            sharing  of  costs of  representation  promoted  by the  1951            amendments" in violation of   152, Eleventh(c).                                            ____________________            4.  BLE relies on  three cases in  support of its  contention            that Article 21 constitutes  an illegal union shop agreement:            Felter v. Southern Pac. Co., 359 U.S. 326 (1959), Birkholz v.            ___________________________                       ___________            Dirks, 391 F.2d  289 (7th  Cir. 1968), vacated  as moot,  395            _____                                  ________________            U.S. 210  (1969) and O'Connell  v. Erie Lackawanna  R.R., 391                                 ___________________________________            F.2d  156 (2d  Cir.  1968), vacated  as  moot, 395  U.S.  210                                        _________________            (1969).    BLE asserted  these  cases  unsuccessfully to  the            Seventh Circuit  in support  of a nearly  identical argument.            See Dempsey, 16 F.3d at  838 n.6.  We concur in  that court's            ___ _______            conclusion that these cases are inapposite.                                          -13-                                          13                      Section  152, Eleventh(c)  limits  employees  in  a            union shop  to membership  in those unions  which qualify  as            electors  of  the  union  representatives  on  the   National            Railroad  Adjustment  Board ("NRAB").    The  NRAB exists  to            settle   disputes   arising   under   collective   bargaining            agreements.  See  Rychlik, 352 U.S. at  487.  As the  Seventh                         ___  _______            Circuit  pointed  out,  this requirement  limits  union  shop            participation  to  those  unions  which share  the  costs  of            administering  the NRAB,  and which  "join together  in other            respects  in  the  negotiating  and  policing  of  collective            bargaining agreements  under the  dispute  mechanisms of  the            RLA."   Dempsey, 16 F.3d at  840.  BLE appears  to argue that                    _______            Article 21  has the effect of depriving it of dues that would            offset its obligations to NRAB.  See id.  Nothing in the RLA,                                             ___ ___            however, guarantees BLE a particular level of dues  to offset            its obligations to NRAB.   Stated more broadly, the  RLA does            not protect any one union from competition  with another over            membership and dues.                        B.  45 U.S.C.    152, Third and Fourth                      ______________________________________                      Section  152,  Third,   entitled  "Designation   of            representatives," provides  that neither unions  nor carriers            "shall in any  way interfere with,  influence, or coerce  the            other  in  its  choice  of representatives."    Section  152,            Fourth,   dealing  with   organization  and   the  collective            bargaining  process, grants  employees the right  to organize                                         -14-                                          14            and bargain collectively through representatives of their own            choosing,  and  provides that  no  carrier  may influence  or            coerce   employees   regarding    their   choice   of   labor            organization,  nor   deduct  dues  or  other   fees  of  such            organizations from employee wages.  BLE contends that Article            21 violates the employee freedom of choice embodied  in Third            and Fourth, and  also the prohibition  on wage deductions  in            Fourth.  Again, we disagree.                      In   TWA,  Inc.  v.   Independent  Fed.  of  Flight                           __________       _____________________________            Attendants, 489 U.S. 426, 441 (1989), the Supreme Court noted            __________            that     152,  Third and  Fourth  operate primarily  in  pre-            certification contexts,  where unorganized employees  seek to            designate representatives and commence  collective bargaining            with employers.  The Court reasoned that the RLA contemplates            dispute resolution through private mechanisms, the success of            which depends on the independence of the employees' "putative            representative" and  on neither party's access  to the courts            to further their own  partisan ends.  Id. (quoting  Switchmen                                                  ___           _________            v.  National Mediation Bd., 320 U.S. 297,  300 (1943)).  In a                ______________________            post-certification context, by contrast, the  parties already            have  certified representatives  and a  collective bargaining            record in place.  In  post-certification disputes, therefore,            we  must  limit  our  intervention  to  cases  in  which  the            aggrieved union has no other remedy "to enforce the statutory            commands which Congress had written into the [RLA]."  Id.                                                                    ___                                         -15-                                          15                      We  have  concluded that  intervention  in  a post-            certification  dispute under     152,  Third and  Fourth will            occur in extremely limited  circumstances.  See National R.R.                                                        ___ _____________            Passenger  Corp.  v. International  Ass'n  of Machinists  and            ________________     ________________________________________            Aerospace  Workers,   915  F.2d  43,  51   (1st  Cir.  1990).            __________________            Specifically, we will intervene upon demonstration of carrier            conduct reflecting anti-union animus, an attempt to interfere            with employee choice of collective bargaining representative,            discrimination,  or coercion.    Id.   In  addition, we  will                                             ___            intervene when  a carrier  commits acts of  intimidation that            cannot  be remedied  by  administrative means,  or commits  a            fundamental attack  on the  collective bargaining process  or            makes a direct attempt to destroy a union.  Id.                                                          ___                      BLE  purports  to  establish  a  genuine  issue  of            material  fact   by  listing  15  "facts"   which  it  claims            demonstrate  anti-BLE  animus  sufficient  to  justify  post-            certification judicial intervention.   We need not recite all            of them here.   We agree with  the district court that  BLE's            facts, even if all true, at best demonstrate sharp bargaining            practices  between unions  in an  effort to  gain competitive            advantage.  Wightman, 915 F. Supp. at 507.  While BLE's facts                        ________            evince competitive jockeying between it and UTU, they notably            fail to  demonstrate anti-BLE animus or  a fundamental attack                                         -16-                                          16            on the bargaining process by ST.5   Accordingly, the District            Court   correctly  declined  to   intervene  in   this  post-            certification matter.                      BLE also contends that  Article 21 violates    152,            Third and Fourth as a matter  of law.6  BLE offers  precedent            under  the National  Labor Relations  Act ("NLRA"),  which it            seeks to apply  analogically to this railroad dispute.  While            the NLRA may provide analogies that bear on interpretation of            the RLA,  the Supreme  Court has  emphasized  that "the  NLRA            'cannot be imported wholesale into the railway labor arena.'"            TWA,  489  U.S.  at  439 (quoting  Trainmen  v.  Jacksonville            ___                                ________      ____________            Terminal, 394 U.S. 369, 383  (1969)).  We especially hesitate            ________            to  employ   NLRA  precedent  in  light  of   the  clear  and            unequivocal  RLA  precedent  from  the  Supreme  Court,  this            circuit  and  others,  which  underscores the  limited  post-            certification  application of    152,  Third and Fourth.  See                                                                      ___            TWA, 489 U.S. at  441 (limiting application of     152, Third            ___            and  Fourth   to  pre-certification  contexts);   Nat'l  R.R.                                                              ___________                                            ____________________            5.  To  be  sure, it  does not  appear  that ST  was entirely            candid with BLE  regarding its negotiations with UTU  and the            substance of the  ST-UTU agreement.   The RLA, however,  does            not  compel ST to inform BLE of the substance of negotiations            with a third union, and we do not identify anti-BLE animus in            ST's actions.              6.  BLE essentially  argues that  by making it  so attractive            for  engineers  to join  UTU, Article  21  has the  effect of            impermissibly interfering  with their  free choice  of union,            and  coercing them to join UTU, in violation of    152, Third            and Fourth.                                         -17-                                          17            Passenger, 915 F.2d at 51 (same); see also Kansas City S., 26            _________                         ___ ____ ______________            F.3d at 795; Dempsey, 16 F.3d at 841.  Finally,   BLE  argues                         _______            somewhat opaquely that a wage deduction provision only passes            RLA muster if  it comprises  part of a  union shop  agreement            under   152, Eleventh.  At the outset we note that Article 21            by itself  does  not  refer  to wage  deductions,  much  less            mandate  them.    Assuming  such  a  wage  deduction  exists,            however,  we disagree  with BLE's  interpretation of     152,            Fourth and Eleventh(b).                        As indicated,   152, Fourth provides that  carriers            may  not  deduct union  dues  or  fees  from employee  wages.            Section 152, Eleventh(b), however, provides that carriers and            labor  organizations may  make agreements  providing for  the            deduction  of  "any  periodic   dues,  initiation  fees,  and            assessments" from employee wages as long as the  employee has            given  the  carrier written  permission.   45  U.S.C.    152,            Eleventh(b).   Section 152,  Eleventh(b), unlike Eleventh(c),            does  not limit  its applicability  to Eleventh(a),  or union            shop agreement situations.   See Kansas City S., 26  F.3d. at                                         ___ ______________            794.  Read  together,    152, Fourth and  Eleventh(b) provide            that carriers may not  unilaterally deduct dues from employee            wages,  but may  do  so upon  the  agreement of  all  parties            involved.  See id.  Thus, even in the absence of a union shop                       ___ ___            agreement,  employees  and  carriers  may  agree  to  a  dues            deduction schedule under   152, Eleventh(b).                                           -18-                                          18                      C.  45 U.S.C.   156, Bargainable Interest                      _________________________________________                      BLE contends  that the District Court  erred in not            setting Article 21 aside on the  basis that UTU and ST failed            to  notify  BLE of  their  negotiations, and  afford  BLE the            opportunity to participate in them.                        The    RLA    mandates    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"  to            interested  parties.  45 U.S.C.   156.  BLE identifies itself            as an interested  party, and contends that ST or  UTU owed it            notice.   BLE also  contends that  it has  joint jurisdiction            over collective bargaining between ST and UTU, at least  with            respect to  train service seniority,  by dint of  the routine            shuttling of employees between the train service and engineer            service crafts.   According  to BLE, that  joint jurisdiction            shouldhavegivenitanopportunitytoparticipateinthenegotiations.                      The  Eighth Circuit  recently faced  BLE's argument            and  concluded  that  neither the  carrier  nor  UTU had  any            statutory  obligation  to  provide  BLE with  notice  or  the            opportunity to participate in negotiations, a conclusion with            which we substantially agree.  See Kansas City S., 26 F.3d at                                           ___ ______________            792.  45 U.S.C.    156 exists to prevent either a  carrier or            union from  unilaterally changing the terms  of the operative            collective bargaining agreement.  Order of Railway Conductors                                              ___________________________                                         -19-                                          19            and  Brakemen v. Switchmen's Union  of N. Am.,  269 F.2d 726,            _____________    ____________________________            733 (5th Cir.), cert.  denied, 361 U.S. 899 (1959).   Section                            _____  ______            156, therefore,  furthers the overall  purpose of the  RLA to            permit   employees   to    choose   their   own    bargaining            representative  freely, and  to ensure  a procedure  for "the            commencement  of conferences  between representatives  of the            two  parties  if changes  are to  be  made in  the contract."            McMullans, 229 F.2d  at 56.   Section 156  does not exist  to            _________            open collective bargaining negotiations between a carrier and            a union to any other union claiming an interest.                        BLE relies  chiefly on two cases,  neither of which            compel the conclusion  BLE seeks.  The  first, Brotherhood of                                                           ______________            Locomotive Eng'rs v. National Mediation Board, 410 F.2d 1025,            __________________   ________________________            1030 (D.C. Cir.), cert. denied, 396 U.S. 878 (1969), involved                              _____ ______            a dispute between BLE and the firemen's union over apprentice            engineers,  a new  class of  railroad employees.    The court            determined that in the  absence of a certified representative            for  the  new  class,  any  union  that  could  fairly  claim            representation  over  the   apprentices  could   legitimately            bargain  with the carrier  about the terms  and conditions of            the apprentices'  employment.  Id.   By demonstrating  a fair                                           ___            claim  of  representation, therefore,  a union  established a            right to notice and the  opportunity to participate under the            RLA.  Id.      This  case,  by contrast,  involves collective                  ___            bargaining between a represented class of employees and their                                         -20-                                          20            carrier.  BLE  does not  assert any  claim of  representation            over UTU members, nor could it.  Train service employees have            already  certified UTU  as  their bargaining  representative.            National Mediation Board,  therefore, does not  support BLE's            ________________________            asserted interest in the  negotiations that produced  Article            21.                      BLE  also  relies on  Illinois  Cent.  R.R. Co.  v.                                            _________________________            Brotherhood  of Locomotive  Eng'rs, 443  F.2d 136,  138, (7th            __________________________________            Cir.  1971).   The  dispute in  Illinois  Central involved  a                                            _________________            tripartite  agreement  between  the  carrier,  BLE  and   UTU            governing the  list of  train service employees  eligible for            engineer work.  UTU  filed suit when BLE sought  to negotiate            revisions to  the rules governing the  list without providing            UTU notice  and an  opportunity to  participate.   The court,            noting the tripartite agreement,  determined that UTU and BLE            shared  joint  negotiating  interests  over  the   list,  and            therefore,  that BLE  could  not unilaterally  negotiate rule            revisions with the carrier.  Id. at 141.                                         ___                      Obviously  no formal tripartite agreement exists in            this  case.   BLE, however,  points  to language  in Illinois                                                                 ________            Central  indicating  that even  in  the  absence of  such  an            _______            agreement, the  ebb and  flow  of employees  between the  two            crafts would give the firemen an "important economic stake in            the  rules regulating  the  extra list"  which in  turn would            establish a bargainable interest  in UTU over rules governing                                         -21-                                          21            the list.  Id. at 141-42.   BLE argues that the same ebb  and                       ___            flow  vests it with a bargainable interest in the negotiation            of train service seniority.                        We disagree with  BLE's interpretation of  Illinois                                                                 ________            Central.   First, that case revolved around a list outside of            _______            either UTU's  or BLE's collective bargaining  agreements with            the  carrier.  The rules  governing the extra list, moreover,            placed direct  conditions on  a fireman's employment  -- they            dictated which of the  firemen could also engage in  engineer            work.   BLE's assumption of  sole negotiating  responsibility            over rules governing the  list placed BLE in the  position of            representing firemen  even though  the firemen had  certified            UTU as their collective bargaining agent.                        In this  case, by  contrast, UTU  does not  seek to            unilaterally govern  the ebb and  flow itself.   UTU, through            Article  21,  has simply  negotiated  with  ST the  mechanism            through which  train service employees  accrue seniority,  as            part of  negotiations over  a  general collective  bargaining            agreement.   BLE and UTU have no tripartite agreement, nor is            UTU  attempting  to unilaterally  negotiate  a  set of  rules            governing movement between the two crafts.                        As the Eighth Circuit concluded,                       "[t]he  distinctive division  of railroad                      employees  under the  RLA into  crafts or                      classes,  and  the  regular  movement  of                      employees  among  the   crafts  that   is                      characteristic of  the industry, portends                      overlapping 'interests'  among bargaining                                         -22-                                          22                      units  in the  composition of  the crafts                      and in their labor agreements.  That sort                      of  interest,  however,  does not  confer                      upon all  unions the right to  notice and                      participation in the arbitrations  of all                      other unions."            Kansas City S., 26 F.3d at  791-92.  We conclude that the RLA            ______________            does not provide BLE  with a bargainable interest  in Article            21 such that ST and UTU owed BLE notice and an opportunity to            participate in the negotiations.                        Affirmed.                      Affirmed                      ________                                         -23-                                          23
