                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 BROTHERHOOD OF RAILROAD
 SIGNALMEN,

                Plaintiff,

         v.                                                Civil Action No. 17-1287 (DLF)

 NATIONAL RAILROAD PASSENGER
 CORPORATION,

                 Defendant.


                                  MEMORANDUM OPINION

       This case is a dispute between Amtrak and a union under the Railway Labor Act, which

establishes two tracks for resolving labor disputes. “Major” disputes are within the jurisdiction

of federal district courts, but “minor” disputes must first go to arbitration. Because this dispute is

minor, the Court lacks jurisdiction and will grant Amtrak’s Motion to Dismiss. Dkt. 7.

I. BACKGROUND

       The Brotherhood of Railroad Signalmen (the Union) is the designated bargaining

representative for employees working in the signalman class or craft, including signalmen

employed by the National Railroad Passenger Corporation, known as Amtrak. Compl. ¶¶ 1–2,

Dkt. 1. Union signalmen install and maintain Amtrak’s railroad signal and communications

systems and equipment. Id. ¶ 5. The Union and Amtrak have a collective bargaining agreement

that establishes the rates of pay, rules, and working conditions for signalmen employed by

Amtrak. See id. ¶ 6; Collective Bargaining Agreement (Agreement), Dkt. 7-3; see also Jindal

Decl. ¶ 3, Dkt. 7-2.
       Rule 7 of the collective bargaining agreement divides Amtrak lines and facilities into

districts. Compl. ¶ 6. Relevant here, Southern Seniority District 3 is the “Chesapeake Division”;

it covers the Amtrak lines and facilities from Darby, Pennsylvania to the southern limits of the

Washington Terminal in Washington, D.C. See Agreement Rule 7, Dkt. 7-3 at 6. Notably, the

collective bargaining agreement has not always covered the Washington Terminal, which was

owned by the Washington Terminal Company until the early 1980s. Jindal Decl. ¶ 7. When

Amtrak acquired the Washington Terminal in the early 1980s, Amtrak and the Union

supplemented their collective bargaining agreement to cover signalmen work at the Terminal.

Id. In 1984, they added Appendix B-11, which states:

       In view of the transaction which will result in the assumption by Amtrak of the
       Communication and Signal work formerly performed by employees of the
       Washington Terminal Company, the parties agree to the following . . .

       Seniority District No. 3 – Chesapeake Division as described in the [collective
       bargaining agreement] is modified to include the former Washington Terminal
       Company property within that seniority district . . . .

Agreement App. B-11, Dkt. 7-3 at 11.

       Rule 1 of the collective bargaining agreement—the scope rule—describes the scope of

work that accrues to the Union. As to covered districts like the Chesapeake Division, the scope

rule provides:

       These Rules, subject to the exceptions hereinafter set forth, shall constitute
       Agreements between Amtrak and its Communication and Signal Department
       employees of the classification herein set [forth] engaged in the installation and
       maintenance of all signals, interlockings, telegraph and telephone lines and
       equipment including telegraph and telephone office equipment, wayside or office
       equipment of communicating systems (not including such equipment), highway
       crossing protection (excluding highway crossing gates not operated in conjunction
       with track or signal circuits) including repair and adjustment of telegraph, telephone
       and signal relays and the wiring of telegraph, telephone and signal instrument cases,
       and the maintenance of car retarder systems, and all other work in connection with




                                                 2
       installation and maintenance thereof that has generally been recognized as
       telegraph, telephone or signal work—represented by the Brotherhood of Railroad
       Signalmen and shall govern the hours of service, working conditions and rates of
       pay of the respective positions and employees of Amtrak, specified in Rule 2
       hereof, namely Electronic Specialists, Electronic Technicians, Inspectors, Assistant
       Inspectors, Foremen, Assistant Foremen, C&S Maintainers, Maintainers,
       Signalmen, Assistant Signalmen, Trainees and Helpers.

       The employees in the Communication and Signal Department shall continue to
       install, maintain and repair, and do testing incident thereto, of all devices and
       apparatus . . . which are part of the signal or telegraph and telephone systems, to
       the extent that such work is now being performed by employees of the
       Communication and Signal Department. This paragraph shall not, however,
       prejudice any rights which such employees may have under the Scope Rule,
       exclusive of this modification, to claim work performed by other crafts in violation
       of the Scope Rule.

Agreement Rule 1, Dkt. 7-3 at 3; see also Compl. ¶ 7.

       The scope rule also contemplates that Amtrak may contract out “scope work” in certain

circumstances:

       Amtrak may not contract out work normally performed by an employee in a
       bargaining unit covered by a contract between a labor organization and Amtrak or
       a rail carrier that provided intercity rail passenger transportation on October 30,
       1970, if contracting out results in the layoff of an employee in a bargaining unit.

Agreement Rule 1, Dkt. 7-3 at 5.

       This dispute concerns whether the collective bargaining agreement requires Amtrak to

assign work in the Railway Express Agency (REA) Building to Union-represented signalmen.

The REA Building, outlined in red below, is located at 900 Second Street Northeast,

Washington, D.C., adjacent to Union Station. See Graber Decl. ¶ 2, Dkt. 7-15.




                                                3
See District of Columbia Geographic Information System, Real Property Finder, http://dcgis

.maps.arcgis.com/apps/webappviewer/index.html?id=3ca919beca684ea7bd7d1ced0dbbf636.

From 1989 to 2015, Amtrak leased space in the REA Building, most recently from a company

called Fluorine, LLC. See Graber Decl. ¶ 2. In connection with plans to expand Union Station,

Amtrak acquired ownership of the REA Building through eminent domain and took possession

of the building on October 1, 2015. Id.

       On January 31, 2017, Union Chairman David Ingersoll asked Amtrak whether their

collective bargaining agreement required Amtrak to assign the signalmen work in the REA


                                              4
Building to the Union. See Compl. ¶ 10; Dkt. 7-11 at 4. After some back-and-forth, Amtrak

responded that signalmen work in the REA Building is not within the scope of the collective

bargaining agreement. See Compl. ¶¶ 12–20; Dkt. 7-11 at 2–3. Meanwhile, on March 21, 2017,

Amtrak notified the Union that Amtrak intended to contract out the renovation of the REA

Building, including signalmen work. See Dkt. 7-12.

       On June 30, 2017, the Union filed its complaint, which alleges that Amtrak violated the

collective bargaining agreement and thus the Railway Labor Act by (i) not acknowledging that

signalmen work in the REA building accrues to the Union and (ii) not assigning signalmen work

in the REA Building to the Union. Compl. ¶¶ 21–27. Amtrak moved to dismiss on July 27,

2017, see Dkt. 7, and the case was reassigned to the undersigned judge on December 4, 2017.

II. LEGAL STANDARDS

       Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may move to

dismiss an action when the court lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1).

Federal district courts are courts of limited jurisdiction, and it is “presumed that a cause lies

outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).

“When ruling on a Rule 12(b)(1) motion, the court must treat the plaintiff’s factual allegations as

true and afford the plaintiff the benefit of all inferences that can be derived from the facts

alleged.” Jeong Seon Han v. Lynch, 223 F. Supp. 3d 95, 103 (D.D.C. 2016) (internal quotation

marks and citation omitted). Those factual allegations, however, receive “closer scrutiny” than

they would in the Rule 12(b)(6) context. Id. Also, unlike when evaluating a Rule 12(b)(6)

motion, a court may consider materials outside the pleadings to evaluate whether it has

jurisdiction, see Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005),

such as the complaint supplemented by undisputed facts in the record, see Herbert v. Nat’l Acad.



                                                  5
of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). Without jurisdiction, the court must dismiss the

action. Fed. R. Civ. P. 12(b)(1), 12(h)(3).

III. ANALYSIS

       A.      Jurisdiction for Railroad Labor Disputes

       The Railway Labor Act governs the jurisdiction of federal district courts over certain

railroad labor disputes. See 45 U.S.C. § 151 et seq. District courts have jurisdiction over

“major” disputes. Bhd. of Maint. of Way Emps. Div. v. Nat’l R.R. Passenger Corp. (BMWED),

217 F. Supp. 3d 249, 255 (D.D.C. 2016) (citing Consol. Rail Corp. v. Ry. Labor Execs.’ Ass’n,

491 U.S. 299, 302–03 (1989)). But for “minor” disputes, “the district courts have only limited

review after . . . an arbitral decision.” Id. (emphasis added) (citing Consol. Rail Corp., 491 U.S.

at 302–04); see 45 U.S.C. § 153 First (q) (providing for limited review of the arbitral decision);

accord Nat’l R.R. Passenger Corp. v. Fraternal Order of Police, 855 F.3d 335, 338 (D.C. Cir.

2017), cert. denied, 138 S. Ct. 979 (2018).

       Jurisdiction thus hinges on whether a dispute is major or minor. “[M]ajor disputes seek

to create contractual rights, minor disputes to enforce them.” Nat’l R.R. Passenger Corp. v.

Transp. Workers Union of Am., 373 F.3d 121, 124 (D.C. Cir. 2004) (quoting Hawaiian Airlines,

Inc. v. Norris, 512 U.S. 246, 252 (1994)). In other words, major disputes “concern the creation

of contractual rights,” while minor disputes “concern the interpretation of contractual rights.”

BMWED, 217 F. Supp. 3d at 256. To classify a dispute, “courts look beyond the complaint to

the arguments of the party asserting a contractual basis for the disputed action.” Id. “Where an

employer asserts a contractual right to take the contested action, the ensuing dispute is minor if

the action is arguably justified by the terms of the parties’ collective-bargaining agreement.

Where, in contrast, the employer’s claims are frivolous or obviously insubstantial, the dispute is



                                                 6
major.” Consol. Rail Corp., 491 U.S. at 307 (emphasis added). “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 [Railway Labor Act].” Id. at 306–07

(internal quotation marks omitted). Thus, “although the plaintiff has the burden of establishing

subject-matter jurisdiction with facts showing jurisdiction, the 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.” BMWED, 217 F. Supp. 3d at 256 (internal quotation marks and alteration omitted).

Further, “there is a strong presumption in favor of finding a dispute to be minor,” id. (internal

quotation marks), and “if doubt arises about the classification of a dispute, the dispute is . . .

considered to be minor,” id. (alteration omitted) (quoting Bhd. of Maint. of Way Emps. v.

Burlington N. Santa Fe R.R., 270 F.3d 637, 639 (8th Cir. 2001)).

       When assessing a collective bargaining agreement, a court does not use the common-law

concepts that govern private contracts because a collective bargaining agreement “is not an

ordinary contract,” but rather “a generalized code to govern a myriad of cases which the

draftsmen cannot wholly anticipate.” Consol. Rail Corp., 491 U.S. at 311 (quoting Transp.

Union v. Union Pac. R. Co., 385 U.S. 157, 161 (1966)). Therefore, the court applies “the

common law of a particular industry or of a particular plant” by examining the “whole

employment relationship.” Id. at 312. “[C]ollective-bargaining agreements may include

implied, as well as express, terms,” and “the parties’ practice, usage and custom is of

significance in interpreting their agreement.” Id. A term “cannot be implied based on prior

isolated ‘occurrences of similar conduct,’” but can be implied from conduct “understood by the

parties to at least impliedly serve as if part of the collective bargaining agreement.” BMWED,




                                                   7
217 F. Supp. 3d at 257 (quoting United Transp. Union, Local Lodge No. 31 v. St. Paul Union

Depot Co., 434 F.2d 220, 222 (8th Cir. 1970)).

       B.      The Dispute Between Amtrak and the Union

       This dispute is minor because Amtrak’s actions are “arguably justified” by the terms of

the collective bargaining agreement in at least three ways. Consol. Rail Corp., 491 U.S. at 307.

       First, the scope rule arguably protects existing Union work in the Chesapeake Division,

but does not mandate that new work in the REA Building automatically accrues to the Union.

Per the scope rule, Union-represented employees “shall continue to install, maintain and repair

. . . all devices and apparatus . . . which are part of the signal or telegraph or telephone systems,

to the extent that such work is now being performed by [Union-represented employees].”

Agreement Rule 1, Dkt. 7-3 at 3 (emphasis added). According to the Union’s reading of this

language, the scope rule governs the “types of work” reserved for the Union, not the locations

where such work is performed, so the Union merits the same types of work at the newly acquired

REA Building. See Opp’n at 26–27, Dkt. 10. But the language of the collective bargaining

agreement does not clearly mandate that interpretation.1 Rather, it is plausible that the scope rule

guarantees to the Union all existing work at the time of the agreement, but not new work in new

locations, such as signalmen work in the newly acquired REA Building. That is how another

judge of this Court read a very similar scope rule that guaranteed to a train-services union the

“work presently recognized as the exclusive work of passenger train service employees on main


1
  Moreover, the Union’s theory of the case undercuts its interpretation. The Union alleges that
the work in the REA Building accrued to the Union when Amtrak acquired the Building in 2015.
See Compl. ¶ 19. From 1989 to 2015, however, Amtrak leased space in the REA Building. See
Graber Decl. ¶ 2, Dkt. 7-15 at 1. If the scope rule merely governs the type of work performed by
the Union, not its location, then the Union has deserved the signalmen work in the REA Building
for decades and not—as the Union argues—simply since the 2015 change in ownership of the
REA Building.

                                                   8
lines, or branch lines or within yard facilities.” Nat’l R.R. Passenger Corp. v. United Transp.

Union, 832 F. Supp. 7, 9 (D.D.C. 1993). As in that case, the scope rule here “does not

specifically identify the work that belongs exclusively to the [Union], but rather identifies it by

reference to work recognized as the exclusive work of the [Union] as of [the date of the

agreement].” Id. at 11. Because the dispute thus “relates to the interpretation and application of

an existing agreement” and Amtrak presents a justifiable interpretation, “Amtrak’s reliance on

[the scope rule] to support . . . its actions can hardly be said to be ‘obviously insubstantial.’” Id.

(quoting Consol. Rail Corp., 491 U.S. at 307).

       Second, Appendix B-11 does not necessarily bring the REA Building’s signalmen work

within the scope of the collective bargaining agreement. The Appendix states that the

“Chesapeake Division . . . is modified to include the former Washington Terminal Company

property within that seniority district.” Agreement App. B-11, Dkt. 7-3 at 11. The Union argues

that Appendix B-11 must encompass the REA Building because the Building “was always part

of the Washington Terminal” and qualifies under Appendix B-11 as “former Washington

Terminal property.” See Opp’n at 25.2 But when the parties added Appendix B-11 to the

collective bargaining agreement in 1984, the Washington Terminal Company did not own the

REA Building, having sold it to Mount Claire Properties in 1981. Graber Decl. ¶ 3; see also

Dkt. 7-17 (deed transferring the REA Building in 1981). Thus, it is arguable that the REA

Building does not qualify as “former Washington Terminal Company property” and Appendix

B-11 does not bring the REA Building within the scope of the collective bargaining agreement.


2
  The Union misquotes Appendix B-11, which modifies the collective bargaining agreement to
include “former Washington Terminal Company property.” Dkt. 7-3 at 11 (emphasis added).
Correctly quoted, the phrase undercuts the Union’s contention that Appendix B-11 “applies to
the Washington Terminal” generally, not the specific property owned by the Washington
Terminal Company circa 1984. See Opp’n at 24–26.

                                                   9
       Third, even if the scope rule covers new work in the REA Building, the rule does not

necessarily guarantee that new work to the Union. The scope rule arguably permits Amtrak to

hire contractors to perform scope work as long as Union-represented employees are not laid off

as a result. See Agreement Rule 1, Dkt. 7-3 at 5 (“Amtrak may not contract out work normally

performed by an employee in a bargaining unit covered by a contract between a labor

organization and Amtrak . . . if contracting out results in the layoff of an employee in a

bargaining unit.”). Amtrak, through its Director of Labor Relations, represents that “[n]o

Amtrak forces will be furloughed, as a result of this contracting of work.” Jindal Decl. ¶ 22; see

also Letter from Jindal to Ingersoll (Mar. 21, 2017), Dkt. 7-12 at 3 (same). The scope rule thus

plausibly permits Amtrak to contract out work in the REA Building. In these ways, the terms of

the collective bargaining agreement arguably justify Amtrak’s actions, making this a minor

dispute.

       Were that not enough, the parties’ “practice, usage and custom” confirms that the scope

rule does not automatically capture new work gained through an Amtrak acquisition. See

Consol. Rail Corp., 491 U.S. at 311. When Amtrak acquired new property in the past, Amtrak

negotiated with the Union to amend the collective bargaining agreement and bring new work

within its scope. Most relevant here, when Amtrak acquired the former Washington Terminal

Company property in the 1980s, the parties negotiated and amended the collective bargaining

agreement via Appendix B-11, which added the Washington Terminal Company property to the

Chesapeake Division. See Jindal Decl. ¶ 7; Agreement App. B-11, Dkt. 7-3 at 11. More

recently, in 2012 when the Michigan Department of Transportation contracted with Amtrak for

maintenance work in certain Michigan territory, Amtrak and the Union executed a Memorandum

of Agreement to confirm that the collective bargaining agreement covered the work and territory.



                                                 10
See Woodcock Decl. ¶ 2, Dkt. 7-13; Memorandum of Agreement, Dkt. 7-14. Although isolated

examples may not necessarily demonstrate an established prior practice, see BMWED, 217 F.

Supp. 3d at 257, this case involves relatively rare circumstances: acquiring new facilities. Such

circumstances “might well be so rare an occurrence that one instance would be enough” to

establish a past practice, Maine Cent. R. Co. v. United Transp. Union, 787 F.2d 780, 783 (1st

Cir. 1986), particularly when the Union has not presented any countervailing examples, see

Opp’n at 32; Def.’s Reply at 12 n.4, Dkt. 11.

       Past practice also indicates that Amtrak can contract out work covered by the scope rule

as long as that decision does not lead to layoffs for Union-represented employees. Since 1999,

Amtrak has contracted out scope work at least 62 times via the “Labor Clearance Process.” See

Jindal Decl. ¶¶ 13–14; see also Dkt. 7-6 at 13 (Union President W. Dan Pickett testifying to the

Presidential Emergency Board that Amtrak had “subcontracted no fewer than 27 Job Labor

Clearances (outsourced projects) that fall within the Scope of the [Union] agreements without

penalty from the Union”); Dkt. 7-7 at 2–3 (listing 27 signalmen projects outsourced from 1999 to

June 2007); Dkt. 7-8 (35 signalmen projects outsourced from October 2007 to present). Amtrak

followed the same process here. See Jindal Decl. ¶ 22. Given the parties’ past practice,

Amtrak’s decision is not “frivolous or obviously insubstantial.” Consol. Rail Corp., 491 U.S. at

307.

       The Court takes no position on which party offers the better interpretation of the

collective bargaining agreement. See id. at 320 (“[I]n no way do we suggest that Conrail is or is

not entitled to prevail before the Board on the merits of the dispute.”); BMWED, 217 F. Supp. 3d

at 258 (“[I]t is not for the Court to say whether the CBAs permit [Amtrak’s action].”). Instead,

the Court determines only that Amtrak “has met the light burden” of showing that the collective



                                                11
bargaining agreement arguably justifies Amtrak’s actions. Consol. Rail Corp., 491 U.S. at 320.

This case is therefore a minor dispute over which the Court lacks jurisdiction. See id. at 307.

The Court will dismiss the action. See Fed. R. Civ. P. 12(b)(1), (h)(3).

                                         CONCLUSION

       For the foregoing reasons, the Court grants Amtrak’s Motion to Dismiss. Dkt. 7. A

separate order consistent with this decision accompanies this memorandum opinion.




                                                             ________________________
                                                             DABNEY L. FRIEDRICH
                                                             United States District Judge
Date: May 18, 2018




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