STRAIGHT TRACK

Saturday, March 13, 2004

JW Babler

General Chairman

United Transportation Union GCA (former C&NW Railway Co.)

307 West Layton Street

Milwaukee WI 53207

Dear Brother Babler,

Concerning the issue of this local’s handling of claims submitted by non-member trainmen who have elected to maintain membership in Brotherhood of Locomotive Engineers Division 333:

This local received a certified letter dated September 14, 2003 addressed to Local Chairman DJ Riehle signed by BLE Division 333 Local Chairman ML Mercier.

BLE Local Chairman Mercier wrote as follows:

“It was vote(sic) at the last meeting to send all B. of L.E. Division 333 Trainmen claims to you via certified mail. Please notify me in writing if there is someone other then(sic) yourself, designated to handle trainmen claims. If there are any forms your members fill out when submitting their claims please forward me a copy.

Brother D.L. Heinze was appointed Vice Local Chairmen(sic) to address our division trainmen concerns. He has been instructed to contact you on any concerns our members have regarding the trainmen schedule or vacation changes.”

I responded under date of September 16, 2003 in part as follows:

“Claims for which further appeal is sought on behalf of trainmen members of Division 333 should be hand delivered to the local’s Sergeant-at-Arms at the commencement of the monthly meeting of UTU Local 650. The time and place of the meeting is 8:00PM, third Wednesday of each month at Amtrak Station, 730 Transfer Road.”

The UTU Local 650’s September 2003 General Membership meeting subsequently approved my response. My letter, as of this date, has not been acknowledged or responded to by any representative of BLE Division 333, nor has any delivery of claims as instructed ever been made. Since that time I have often been on railroad property at the same time as Mr. Mercier or Mr. Heinze and no discussion of the subject has ever been initiated by either person.

I have received various notices of attempted delivery of certified mail since September 14, 2003 that I believe may have emanated from Mr. Heinze since the indicated zip codes of origin are in the general area of his residence, and since I have no reason to expect any other certified mail from those zip codes. I have not picked up the mail associated with those notices and I presume they have been returned to the sender(s). Since I work an irregular schedule, including afternoon and night hours, as well as trips out of town which include an away-from-home layover, the post office is not always available to me when I return home, and the travel to the location is an inconvenience.

Those trainmen who desire to submit claims for further appeal have the option of bringing them to the regular monthly local meeting, sending them by regular mail or leaving them in designated locations at various railroad on-duty locations, primarily the yard office at South St Paul, where this local has a pigeon-hole mailbox, and at Valley Park yard office in Shakopee, Minnesota, where they can be left with one or another of the yard employees who is an officer of this local. No enrolled and dues-paying member of UTU 650 submits claims for further handling by certified mail, and such method of delivery is not an acceptable procedure, since it is burdensome and unnecessary, and to my knowledge has never been attempted.

Your office has informed me that in December 2003 BLE President Hahs authorized the organization’s General Counsel to file “an appropriate lawsuit” alleging that Local 650 and the UTU “have engaged in conduct that breaches their duty of fair representation to all members of the trainmen’s craft.” You further reported that the contemplated lawsuit was not filed after discussion between UTU General Counsel Miller and BLE General Counsel.

Neither I nor any other officer of this Local have received any verbal or written instruction or advisory from Mr. Miller or any other representative of the UTU’s International Office in Cleveland concerning the application of the doctrine of “duty of fair representation” in this matter, or of any general policy that has been formulated by the Organization on the matter.

Under these circumstances I must necessarily rely to a considerable degree by my own understanding of the issues at hand.

1.) It is a matter of record that this Local has handled numerous claims submitted by trainmen who belong to BLE Division 333, and that favorable settlement has been made on their behalf in many. This Local’s report on claims settled in 2003, copy of which has been provided to your office, indicates an amount of in excess of one thousand dollars for BLE trainmen.

2.) BLE Division 333 has asserted its right to unilaterally and without discussion determine the manner in which claims are delivered to this local, thus usurping the right of the membership to make that decision. They have in addition demanded a method of delivery that is more burdensome to the local officers who handle the claims than that required of enrolled and due-paying members of UTU Local 650, and disregarded the clear instructions of this Local.

3.) BLE Division 333 has in effect asserted its right to act as an agent of BLE trainmen in their relations with UTU Local 650. They apparently rely for support for this position on the legal doctrine of “duty of fair representation.” I do not believe that any court has ever placed a construction on DFR that assumed it would take place in the context of bi-lateral relations between two or more labor organizations. It has, throughout its legal history, addressed the rights of individual workers vis a vis a labor organization which held exclusive collective bargaining rights. What BLE Division 333 is asserting here is its right to dictate claims handling policy of UTU Local 650, and to demand superior rights for its members than those accorded the enrolled and dues-paying members of UTU Local 650.

4.) Implied in this stance of BLE Division 333 is even further usurpation of the right of UTU Local 650 to govern its affairs directed by the authority granted under the UTU Constitution. Article 44 of the United Transportation Union Constitution, effective November 1, 2002, states that:

“Every member of the United Transportation Union grants complete authority to the United Transportation Union and any of its constituted representatives to act in said member’s behalf for the purpose of disposing, in any manner, of any and all of said member’s claims, complaints, or grievances against their employer, and to submit such claims, complaints or grievances for determination to any person, board, or other tribunals provided by law or otherwise as may be deemed to be necessary.” (Emphasis added.)

The unmistakable logic of BLE’s assertion of its right to act as an agent for its trainmen members is to assert that bi-lateral jurisdiction to “dispose of claims, complaints, and grievances” brought forth by BLE trainmen members exist and is shared by the UTU and BLE. It, or ought to be, evident that an exercise of this right would logically and inevitably co-exist with a right of oversight and review of any decisions made by UTU Local 650 concerning disposition of claims, and therefore provide BLE trainmen, or BLE Division 333 as an agency, with equal standing with enrolled and dues paying members of UTU Local 650 in deciding policy and disposition of claims. The BLE’s implicit assertion of its standing to act as an agent for its trainmen members in negotiating handling of their claims with UTU Local 650 clearly oversteps the scope of duty of fair representation, which is limited to a review of hostile discrimination, and expressly excludes the consideration of the merits of exercise of bona-fide judgment, or even negligence and ineptitude. Any infringement on the exclusive right of UTU Local 650 to determine the disposition of grievances is clearly incompatible with the provisions of the UTU Constitution and, if allowed to prevail, would grant the BLE, as an agent for its trainmen members, the authority to nullify or amend decisions of the UTU regarding handling of claims, complaints and grievances.

5.) As is generally known, the duty of fair representation was first announced in a 1944 Supreme Court case decided under the Railway Labor Act, Steele vs Louisville & Nashville Railroad. In the Steele case, the Brotherhood of Locomotive Firemen was the exclusive bargaining agent for firemen employed by the railroad. The railroad employed both Negro and white firemen, but the constitution of the Brotherhood prevented Negroes from joining the union. The ruled that an agreement negotiated by the Brotherhood and the L&N that discriminated against Negro firemen was illegal, because the right of exclusive representation given the union under the Railway Labor Act carries with it an obligation to exercise that right without hostile discrimination. Other actions alleging a failure to provide fair representation have arisen since in other circumstances, such as hostile discrimination against an individual who WAS a member of a union, and against an individual who chose not to join the union.

6.) None of the above circumstances fit this situation sufficiently to provide guidance for this Local as to its duty of fair representation in relation to trainmen who elect to maintain membership in the Brotherhood of Locomotive Engineers. UTU Local 650 solicits the membership of ALL employees, without discrimination or distinction, in the trainmen’s craft and class of service. BLE Division 333 solicits trainmen membership on the basis that such membership allows trainmen to meet their fundamental obligation to maintain union membership as a condition of employment, while paying lower dues than members of UTU Local 650 and BLE Division 333 further assures these prospective members that UTU Local 650 will handle all their claims and assume the entire expense of the processing. In fact, BLE Division 333 Local Chairman Mercier has even been heard engaging in locker room boasting that UTU members’ dues will be rising even higher as a result of the BLE’s impending lawsuit. None of this, to my mind, indicates any sincere interest in the specific interests of the trainmen members of BLE Division 333, simply an aggrandizing interest in diminishing the membership of UTU Local 650 in favor of Division 333.

7.) In circumstances that I am familiar with where a union has exclusive bargaining rights, but there is no provision of the collective bargaining agreement requiring union membership, such as among public employees in the State of Minnesota, there is a reciprocal obligation imposed to pay so-called “fair-share” dues, less than the dues paid by enrolled union members, but sufficient to support the administration of the contract by the union.

8.) In the absence of such “fair share” obligations on the part of trainmen who elect to join BLE Division 333 rather than UTU Local 650, the entire burden of financing the administration of the contract falls exclusively upon the members of UTU Local 650. This can have no other meaning than that the trainmen members of BLE Division 333 are freeloading on the backs, and pocketbooks, of their fellow workers, asserting through their agent, BLE Division 333, that they are entitled under the doctrine of duty of fair representation to have all of the privileges and none of the obligations of membership.

9.) It is a matter of record that claims handling on the part of UTU Local 650 is continuous and voluminous, to the extent that the officer of this local who processes the local penalty claims for which monetary remedy is sought handles hundreds of them each year. In order to support this effort, UTU Local 650 pays this local officer an average of four (4) lost time days each month. Even granting this individual this amount of paid time off each month, it is virtually impossible to handle the entire volume of claims, and review of our finances shows no room for enlargement of this lost time payment.

10.) For BLE Division 333 to cynically and with gross opportunism solicit the membership of trainmen on the basis of lower monthly dues and promise them that the financial burden of handling their claim will fall entirely on UTU Local 650 is an indefensible affront to any elementary concept of fairness and equity, not to say trade-unionism. The prevailing circumstances do not seem to me consistent with considerations that have entered into prior adjudication of DFR litigation. It is BLE Division 333’s demands and assertions on us, rather than UTU Local 650’s conduct of its affairs, which meet the Supreme Court’s definition of conduct constituting failure of duty of fair representation—that is: “so far outside a wide range of reasonableness as to be irrational.” It is obvious that what is fundamentally in evidence here is not a failure of UTU Local 650 to meet is DFR obligation under the law but the failure of non-member trainmen to pay their “fair share” of the cost of administering their claims. Any just resolution of this matter should provide reciprocal obligations which in my opinion could only be met by requiring BLE trainmen to pay the same assessment as that given by UTU Local 650 members to cover the operation of the Local Committee of Adjustment, the subordinate body of the Local which handles penalty time claims. Without such reciprocity, BLE’s claims of failure of duty of fair representation are transparently dishonest, self serving and hypocritical.

I am in receipt of Civil Action No. 04-1161 DWF/AJB filed by the BLE in US District Court, Minnesota and inquiry from Mr. Kevin Brodar requesting review.

You should have my letter to you dated March 13, 2004 addressing this matter, which I trust you will provide copy of to Mr. Brodar.

1.) Plaintiff EJ Bauer(sic), actually ES Bauer, is a former member of the BLE and presently a member of UTU Local 650.

3.) Plaintiffs Bauer, Benjamin, Schwendeman and Pietsch received payments from Union Pacific in year 2003 for claims handled on their behalf by UTU Local 650 in the respective amounts of $1313.85, $250.00, $1609.95 and $91.60. (Reference: Annual Claims Report issued by UTU Local 650 Vice Local Chairman DW Halverson.)

4.) The complaint states that (17.)...“during August and September 2003, the ...plaintiffs...filed claims with UP. And further (18.)...”UP later denied the claims...” and (19.) (BLE Local Chairman Mercier)...” On October 21, 2003, by certified mail, sent (the claims) to UTU Local 650 local chairman David J Riehle for handling of each claim.” I have Certified Mail Notice Attempt of Delivery form dated “10-22” for Article No. 70033 1010 0001 8707 0959” which may be the article referred to. The notice states that the article could be picked up at Rice Street Post Office, 40 Arlington Street, St Paul MN 55117. It is not correct that I “refused” this item. I did not pick up this item.

5.) UTU Local 650 does not have a collective bargaining agreement with BLE Division 333, and BLE Division 333 has not established bilateral relations with UTU Local 650 governing BLE trainmen. UTU Local 650 does not recognize any authority possessed by BLE Division 333 to negotiate on behalf of UTU Local 650 concerning handling of trainmen claims submitted for further handling by BLE trainmen.

6.) Concerning Assertion No. 14: BLE Division 333 Local Chairman Mercier sent a certified letter dated September 14, 2003 to Local Chairman Riehle This letter is not attached to the complaint although my reply is. In the letter he states that “It was vote(sic) at the last meeting to send all BL of E Division 333 Trainmen claims to you via certified mail.” UTU Local 650 recognizes no right possessed by the membership of BLE Division 333 to determine the form in which claims are delivered to this Local. While we deny that BLE Division 333 possesses any right to bilateral negotiations with UTU Local 650 on behalf of BLE trainmen members, I did respond in letter dated September 16, 2003 and informed them of an acceptable method for BLE Division 333 to deliver claims initiated by BLE trainmen members and collected by Division 333 to this Local.

7.) The acceptable method of delivery of claims to this Local for further appeal has been and continues to be by regular US mail or deposit in various designated locations at Union Pacific yard offices. By its letter of September 14, 2003, BLE Division 333 elected to disregard this established procedure and assert its authority to dictate to Local 650 how claims emanating from BLE trainmen members would be delivered and received.

8.) BLE Division 333 by its complaint is asserting that BLE trainmen have a different and superior right to delivery of claims to UTU Local 650 than that possessed by members of Local 650, and one that is not accorded to members of Local 650.

9.) This Local has no record of any member of Local 650 complaining that the customary method of delivery of claims is inadequate.

10.) Neither BLE Division 333, Local Chairman Mercier nor “BLE Vice Local Chairman in Charge of Trainmen Claims DL Heinze” has ever responded, either verbally or in writing to my September 16 letter. It is plain to me that BLE Division 333 has utilized their demand that this local accept certified mail delivery of BLE trainmen claims as a provocation to support their frivolous lawsuit.