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 G RANTING D EFENDANT ’ S M OTION TO D ISMISS , D ENYING P LAINTIFFS ’ M OTION FOR A P RELIMINARY I NJUNCTION
I. INTRODUCTION Plaintiffs, the Brotherhood of Mai ntenance of Way Employes Divi sion/IBT and the Brotherhood of Railroad Signalme n (collectively “the Unions”) s eek a preliminary injunction against Defendant National Railro ad Passenger Corporation (“Amt rak”), alleging that it unilaterally implemented new rule s that changed working conditi ons 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 p arties to collective bargaining agreements governing pay rates , rules, and working conditions. Am. Compl. ¶ 8. The Unions take issue with Amtrak’s unilate ral installation of “a video an d audio surveillance system with inward and outward facing camer as and audio recording used in v ehicles used by [Union employees] and supervisors.” Am. Compl. ¶ 13. The Unions alle ge 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 extend ed jurisdiction to the fede ral courts under Section 6 only in2 cases of “major disputes,” whi ch concern the creation of new co ntractual rights. Because the dispute over the installati on of the video and audio system arg uably 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 jurisdi ction and must grant Amtrak’s Motion to Dismiss.

II. FACTUAL BACKGROUND A. The Collective Ba rgaining Agreements Amtrak is a rail carrier syste m partially funded by the federal government. Am. Compl. ¶ 3. The Unions represent a group o f Amtrak employees responsi ble for constructing, repairing, and maintaining Amtrak’s track, r ight-of-way, and other structures, and a group of employees responsible for installing and maintaining Amtrak’s signaling s ystems. Id. ¶¶ 6–7. Amtrak and the Unions are parties to colle ctive bargaining agreements (CBA s) that govern rates of pay, rules, and working conditions. Id. ¶ 8. The CBAs contain “moratori um” provisions, which restrict ed the ability of the parties to s eek 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 e mployee compensation and working c onditions. Id. ¶¶ 10–12. 1. Express Provisions Each plaintiff has an identical “System Safety Agreement” with Amtrak that begins with the following introduction: “Am trak and the [Union] are committ ed 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. t o Dismiss, Ex. 3, at 8, ECF No. 8-5. T he Safety Agreements proce ed to outline procedures for3 training, workplace safety, accide nt reporting and investigatio n, 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 a pplied.” See Def.’s Mot. to Dismiss, Ex. 2, at 9; 1 Def.’s Mot. to Dismiss, Ex. 3, a t 11. That same section provi des that it is not a violation of the CBA for employ ees to refuse to start work whenany 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 t hat provides for how “Amtrak Safety Rules ” are promulgated. The Agreements further provide that Amtrak “shall establish full ti me [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 practic es.” See Def.’s Mot. to Dismiss, Ex. 2, at 12; Def.’s Mot. to Dismiss, Ex. 3, at 14. T he Safety Liaisons’ observations cannot be used to “init iate discipline.” See Def.’s Mot. to Dismiss, E x. 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 signific ant loss to Amtrak. See id. ¶ 4–5. The procedures have been implemented unilaterally by Amtrak, an d many of them are outlined in the Amtrak Policy and Instruc tion Manual, which is available to employees online. See Decl.

1 Because Defendant uses portions of longer documents as exhibit s, citations to Defendants’ Motion to Dismiss Ex hibits are to the page numbers assigned by ECF.4 of Susan K. Reinertson, Def. M ot. to Dismiss, Ex. 5, at ¶ 5, EC F No. 8-7. The Unions have been aware of the use of certain surve illance technologies to some e xtent. 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 andother employeemonitoring equipment in the pa st. In fact, “[a]ll employees en counter video monitoring at some point in their workdays, many fo r the entirety of their workday s.” See Decl. of Susan K. Reinertson, Def. Mot. to Dismiss, Ex. 5, at ¶ 6. This monitori ng 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 e xists in “stations, bases, maintenance facilities, t racks, bridges, tunnels, power stations, substations, yards, right-ofway shelters, and parking lots.” Id. ¶ 7. This surveillance can be us ed in court proceedings and for “other bona fide use[s],” i ncluding employee discipline. Id. ¶¶ 11, 13. The Unions allege that they understood the existi ng video surveillance to be onlyused for safety purposes and to have been “generally paid for by the . . . Department of Homeland Security.” See Second Decl. of David Ingersoll, Pls.’ Mem o. Opp. to Def. Mot. to Dismiss, E x. 2, at ¶ 3, ECF No. 13-2. They also contend that most of the e xisting cameras are installed inareas where Union employees do not usually work. See Decl. of Jed Dodd, Pls.’ Memo. O pp. to Def. Mot. to Dismiss, Ex . 1, at ¶ 7, ECF No. 13-1. Although the Uni ons have known that surveil lance 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 onl y been used in isolated cases. See Second Decl. of Jed Dodd, Pls.’ Memo. Opp. to Def. Mot. to Dismiss, Ex. 1, at ¶ 12.5 b. Time Entry Devices (“TED Units”) Since 2006, Amtrak has used cameras to photograph the faces of employees when they use their electronic informati on cards to access employee-only areas. See Decl. of Ronald R. Nies, Def. Mot. to Dismiss, E x. 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 empl oyees 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 d iscipline. See Decl. of Jed Dodd, Pls.’ Memo. Opp. to Def. Mot. to Dismiss, Ex. 1, at ¶ 8. Howev er, at least one employee and member of a Union has been “reprimand[ed] after . . . [being] c aptured on camera tampering with a TED unit.” See Decl. of Sharon Jindal, Def. M ot. to Dismiss, Ex. 1, at ¶ 33. c. GPS Monitoring To record mileage, speed, and loc ation of Amtrak vehicles, Amtr ak also uses GPS monitoring. See Decl. of Stephen Kendrick, Def. M ot. to Dismiss, Ex. 10, at ¶ 3 , ECF No. 8-12. The GPS units “collect[] data on the following metrics: locatio n; speed; path (with the ability to play the path on a map); the time period the machine was runnin g; the time period the machine was moving; the time period the m achine idled; and the location s 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 ins talling what the Unions call “a video and audio surveillance system with inwar d and outward facing cameras and audio recording equipment used in vehicles used by [Union emp loyees] and supervisors.” See Am. Compl. ¶ 13. This “DriveCam” system can be used for “coaching” and employee disci pline. See Decl. of Jed6 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 recor ding.” 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 tot al seconds of audio and video—eightbefore 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 r emotely 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 Ingers oll, Pls.’ Memo. Opp. to Def. Mot. to Dismiss, Ex. 2, at ¶ 4. Amtrak has stated thatthe 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 J ed Dodd, Def.’s Mot. to Dismis s, Ex. 15, ECF No. 8-17, and record accidents for the purpose of corre cting 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 accele ration, sudden stops, and irregular maneuvers.” See Decl. of Michael Logue, Def . Mot. to Dismiss, Ex. 4, at ¶ 15, E CF No. 8-6. 3 The Unions contend that Amtrak’s safety justification was contrived after-the-fact, and that the actual purpose of the s ystem was to limit Amtrak’s exp osure to liability and minimize medical and repair costs. See Pls.’ Mem. of Law in Supp. of M ot. for Prelim. Inj., at 5, ECF No. 4-1. The Unions articulate a di stinction without a difference. The DriveCam system is, even according to Amtrak, aimed at minimizing accidents through safe r driving and to record incidents for the purpose of exonerating drivers—and, in effect , Amtrak—from liability. See Decl. of Michael Logue, Def. M ot. to Dismiss, Ex. 4, at ¶ 9. A necessary intermediate step between implementation of the D riveCam system and a decrease in liability and medical and repair cost is an increase in s afe practices. Ultimately, the U nions’ argument amounts to a contention that Amtrak was not str iving for safe practices for the altruistic good of their employees, but rather for the good of their bottom-line. For p urposes of interpreting the employee safety agreements, it does not matter why Amtrak strives for saf ety; 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. 8-5.7 Amtrak maintains that the syst em is not intended for use in emp loyee discipline, but does not go so far as to say that it w ill 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 protect ing its employees and assets, A mtrak points to BNSF Railway and Union Pacific Railroad, noting that they have “reported significant reductions in accidents, maintenance/repair costs, and claims f rom accidents since implementing DriveCam.” See Decl. of Michael Logue, Def . Mot. to Dismiss, Ex. 4, at ¶ 12. The process by which changes i n working conditions are negotiat ed is governed by statute. Section 6 of the RLA provi des that “[c]arriers and re presentatives 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 wh ere such notice of intended change has been given . . . working condition s shall not be altered bythe carrier until the controversy has been finally acted upon . . . .” 45 U.S.C. § 156. Amtrak qual ifies as a “carrier” under the RLA, and the Unions qualify as “representatives.” See Am. Compl. ¶¶ 1–3. Plaintiffs allege that Amtrak’s unilateral in stallation of the DriveCam video and audi o recording system violates § 156. See id. ¶ 23. The Unions allege that Amtrak did not engage in negotia tions over the system and, in fact, misleadingly stated that it was required b y federal law. See id. ¶¶ 13, 18–19. They have served Section 6 notices on Amtrak to prohibit DriveC am 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 en join Amtrak from “installing the new surveillance equipment” and “implementing the new surveillance regime” at least until the parties have negotiate d pursuant to the RLA. See Am. Compl. Request for R elief; Pls’ Mot. for Prelim. Inj., at 1.8 III. ANALYSIS A. Legal Standard Amtrak moves for dismissal under Rule 12(b)(1) on the basis tha t the Court lacks subjectmatter 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 al legations “closer scrutiny when resolving a Rule 12(b)(1) moti on than would be required for a R ule 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 posses s only that power authorized by Constitution and statute . . . .” Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994). Congress has th e “prerogative to restric t the subject-matte r jurisdiction of federal district courts” base d on the types of claims brought b y particular plaintiffs. Arbaugh v. Y&H Corp. , 546 U.S. 500, 515 n.11 (2006). Congress ha s restricted the s ubject-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—9 which concern the interpretati on of contractual rights—the district courts have only limited review after the National Railr oad Adjustment Board has issued an arbitral decision. See Consol. Rail Corp. , 491 U.S. at 302–04. However, federal district courts maintai n jurisdiction over “major disputes,” which concern the creation of contractual rig hts. See id. at 302–03. Historically, the line distin ction between major and minor disp utes 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 dis putes” concerned “large iss ues” 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 compar ison, “affect the smaller differ ences which inevitably appear in the carry ing out of major agreements and p olicies or arise incidentally in the course of an employment. They rep resent specific maladjustment s of a detailed or individual quality. They seldom produce stri kes, though in exaggerated in stances they may do so.” Id. at 724. At any rate, whether the Cour t has subject- matter jurisdi ction here depends on whether the dispute at issue is a “major” or “minor” one as defined by the RLA. To determine whether the disput e is major or minor under the RL A, courts look beyond the complaint to the arguments of the party asserting a contrac tual 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 agreemen t, the dispute is minor and t he 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 perspe ctive 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 caseby-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).10 ‘obviously insubstantial,’ ‘spur ious,’ and ‘frivolous’ have bee n employed. . . . These locutions are essentially the same in their result. They illustrate the relatively light b urden which the railroad must bear in establishi ng exclusive arbitral jurisdict ion 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 persua ding the court that the acti on 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 subjec t-matter jurisdiction, it cann ot afford Plaintiffs any relief—injunctive or otherwise. See Zukerberg v. D.C. B d. of Elections & Ethics , 999 F. Supp. 2d 79, 82 (D.D.C. 2013). Indeed, it “may not . . . ‘resolve co ntested 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 juri sdiction hinges on the type of di spute between Amtrak and the Unions, the question before the Court is whether Amtrak’s i nstallation of the DriveCam audio and video recording equipmen t, coupled with how events ar e actually captured and could be used to discipline employees, g ives rise to a “major” or “mi nor” dispute. Stated differently,11 the Court has subject-matter jurisdiction over the matter only if the program is not arguably justified by the existing agreem ents between the Unions and Amtrak. In determining whether the program is arguably justifie d by existing agreements, the C ourt 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 i ndustry or of a particular pla nt,” in this case, the “whole employment relationship” be tween Amtrak and the Unions. Consol. Rail Corp. , 491 U.S. at 312. This is because a collective-bar gaining agreement is more than an ordinary contr act; “[i]t is a generalized code to govern a myria d of cases which the draftsme n cannot wholly anticipate.” Id. at 311–12 (quoting Transp. Union v. Union Pac. R. Co. , 385 U.S. 157, 161 (1966)). Accordingly, “collective-bargaini ng agreements may include impl ied, as well as express, terms,” and “‘practice, usage and custom’ ” of the parties is instructiv e on deciphering the implied terms, just as it is on interpr eting express terms. See id. at 312 (quoting Transp. Union , 385 U.S. at 161). An agreement cannot be imp lied based on prior isolated “ occurrences of similar conduct,” but requires conduct “understood by the parties t o at least imp liedly 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 exi sting contracts . First, it arg ues that the CBA’s explicit terms allow Amtrak to implement the program. See Def.’s Mot. to Dismiss at 15–17. Second, it12 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 existi ng CBAs contain express provisions showing that it “has the right to implement rules and proced ures that are designed to pr omote safety, which is the primary reason for Amtrak’s implementa tion 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 appl ied,” the Unions’ proposal to amend existing CBAs to disallo w the DriveCam technology, and th e lack of any express contractual prohibition. See id. In determining whether these c ontentions are sufficient so as to not be characterized as “frivolous ,” “spurious,” or “obviously insubstantial,” the Court does not judge the merits of Amtrak’s co ntractual argument, but does tak e a “peek” at the justification to determine whether it is arguabl y 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 expre ss 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 fi rst step courts seem more inclined to look past t he 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 blac k letter of the contract to th e parties’ assumptions. There, the pa rties’ collective bargainin g agreement contained “extensive procedures whereby union me mbers may be furloughed.” See id. Although the contract13 contained no provision stating that furloughs were acceptable, “[t]he parties’ e xplicit bargain over furlough procedures plainly r est[ed] on the premise that f urloughs are permissible,” and “thus a dispute over furloughs appe ar[ed] to be at least arguab ly comprehended within the . . . collective bargaining agreement.” See id. Thus, the D.C. Circuit reversed the lower court’s finding that the terms of the c ontract 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 provis ion constraining Amtrak’s authority to promulgate, impleme nt, or enforce safety rules. T he CBAs do however set forth identical safety agreements with the purpose of “ensuring compl iance 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 bestefforts to ens ure that all . . . Amtrak safety rules are properly applied.” Def.’s Mot. to Dismiss, Ex. 2, at 9; De f.’s Mot. to Dismiss, Ex. 3, at 10. So, although there are no express provisions providing for part icular enforcement mechanisms for Amtrak’s safety rules, the CBAs contemplate that Amtrak wil l implement safety rules and that the parties will take measures to ensure that they are fol lowed. After all, if Amtrak does not enforce its safety rules, empl oyees are justified to discontinu e 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 exist s that violates an . . . Amtrak Safety Rule . . . .”); Def.’s Mot. to Dismiss, Ex. 3, at 10–11. It is not “frivolous” or “obvious ly 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. Indee d, Amtrak has stated that the primary purposes of the DriveCam system include the safety of its employees and equipment, and n otes that similar DriveCam14 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 promulga tion of certain safety rules, and the unilateral implementation of measures to ensure enforcement. Again, it is not for the Court t o say whether the CBAs permit the installation of DriveCam VERs. See Consol. Rail Corp. , 491 U.S. at 320 (“[I]n no way do w e suggest that [the union] is or is not entitled to pr evail 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 l ack merit to the point of being frivolous. 2. Purported Implied Terms of the CBAs The practices that Amtrak argues constitute implied terms of th e CBAs confirm the finding that the Court lacks s ubject-matter jurisdiction over these claims in two ways. First, the “practice, usage and custom” inf orm the Court’s analysis of the express terms of the CBAs. As noted above, “it is well establis hed that the parties’ ‘practic e, usage and custom’ is of significance in interpret ing their agreement.” Consol. Rail Corp. , 491 U.S. at 311 (quoting Transp. Union , 385 U.S. at 161). The past practi ces of the parties confirm the Court’s reasoning with respect to the explicit term s in the contract and further show that Amtrak’s argument is not frivolous. Amtrak has unilaterall y promulgated rules and enfor ced them for years, see Decl. of Susan K. Reinertson, Def. Mot. t o Dismiss, Ex. 5, at ¶ 5 (stati ng that “employee policies and procedures . . . are created and i mplemented by Amtrak manageme nt”), and, although they quarrel with the extent of their knowledge, the Unions ha d knowledge of the promulgatio n and enforcement, see Decl. of Jed Dodd, Pl.’s Mem. in O pp. to Def.’s Mot. to Dismiss , Ex. 1, at ¶ 12.15 This further demonstrates that Amtrak’s argument that it was en titled to install the DriveCam system is not frivolous, spurious , or obviously insubstantial. Second, the parties’ past practi ces independently show an arguable basis for Amtrak’s actions. As noted above, the onl y relevant past conduct by the parties is that “which has attained the dignity of a relationshi p understood by the parties to at l east 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 f or “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, a long with evidence of whether there was joint participation in the prior course of conduct, all t o be weighed with the facts and c ircumstances 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 “s urveillance” exist at all.
See Pls.’ Mem. Opp. to Mot. to D ismiss, at 10–11, ECF No. 13. Theycontend that Amtrak “has not shown any prior action that i nvolves video and audio survei llance monitoring of [Union employees] at work,” monitori ng “over an extended period of tim e,” or for the purposes that Amtrak is recording. See id. at 18. In fact, they argue that Amtrak has never previously u sed any form of audio surveillance at all. See id. at 6. With respect to the video monitoring, the Unions contend that their unders tanding was informed by the Dep artment of Homeland Security funding, and that the video surveil lance—described as “securitysystems”—would be used for the purpose of protecting against m uch larger security threats than car accidents. See id. at 19. They further argue that the TED system was used for security, n ot employee discipline, and16 monitors employees only whe n they enter and exit work. See id. at 21. Finally, the Unions distinguish the GPS monitori ng by noting that it does not monit or 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 th reshold question of whether any implied CBA terms exist at all. The Unions may be correct that they have not acquiesced to any type of monitori ng directly akin to the Drive Cam 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. L a. July 25, 2013). They have a cquiesced to video surveillance for the purpose of employee and public sa fety and security, for example. Their understanding that the purpos e of the system was to monit or broader safety threats is irrelevant to the que stion of whether the re is an implied term in the CBAs pertaining to some video monitoring. The same reasoni ng applies to the TED system ; although the Unions’ acquiescence does not mean that they necessarily consented to r ound-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 collec tion 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 Drive Cam system, and that inquiry is subject to the presumption in favor of Amtrak. See id. Before analyzing whether the D riveCam system is “arguably” wi thin 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 f or safety and security purposes . The TED system—which has been in place since at least 2006—s imilarly shows that the Unio ns have consented to visual monitoring to ensure proper recording of time and access by per sonnel. The GPS system shows17 that the Unions have consented t o having employees’ routes and vehicles monitored. The Unions have continued to acquies ce despite knowledge of the tec hnology, and members being subjected to discipline base d on it. Moreover, although the Un ions place particular emphasis on the Department of Homeland Secu rity’s partial funding of the Amtrak video surveillance system, they never really explain why. To the extent that the Unions a cquiesced because the system is used for security, the funding s ource 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 s ubmit to drug testing through urine samples. See 491 U.S. at 313–14. The Supreme Court noted tha t the parties’ longstanding practice of “routinely . . . requir[ing] its employees t o undergo physical examination under the supervision of its health services department” constituted an implied term of their colle ctive-bargaining agreement, “established by longstanding past p ractice and acquiesced in bythe [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 und ergo periodic physical examinations,” which routinely r equired a urinalysis for blood sugar and albumin. See id. at 312–13. Second, the company required similar examinations for furloughe d employees returning to duty. See id. at 313. Third, when employees had certain conditions (for exa mple, they had previously suffered a he art attack), i t required follo w-up examinations. See id. If an employee did not meet the company ’s requirements during the phy sical, they could be forced to take leave without pay until it was corrected. See id. In finding that the unions also arguably18 acquiesced to drug testing, the Court emphasized that the company ordered urinalysis in cases where the doctor suspected dr ug use, and required screening whe n 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 us e of internally-facing camera s that could capture some video arguably within the implied terms of the parties’ collective-bargaining agreement. 2013 WL 3874513, at *6. The court there foun d that the acquiescence of “some monitoring” made the company’s argument nonfrivolous, because the company had previo usly used stationary surveillance cameras, inward-poi nting surveillance cameras in c ertain vans, and procedures for monitoring phone calls between tra in crew management and train crew employees. See id . at *5. Once again without passing on the m erits, a “peek” at the impli ed terms of the contract leaves no doubt that Amtrak’s ar guments are not frivolous, and therefore that the dispute is minor. Like the stationary video monitoring, the DriveCam is u sed 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 advanc ed technologies. In sum, the Unions have acquiesced to workplace monitoring of employees using advanced technologies w hich include, at some locations, continuous video surve illance and, in vehicles, GPS technology. Amtrak claims that the DriveCam system is an incre mental change that falls within the Unions’ acquiescence. The Unions disagree, insis ting that the system has a completely newelement of monitoring—audio recording—and is so pervasive as to be outside the scope of its previous acquiescence. The19 question of where the system fa lls on the continuum of acquiesc ence is subject to proper argument and is therefore, by defi nition, a minor dispute. It is thus beyond the purview of the Court in light of its limited s ubject-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 Pre liminary Injunction (ECF No. 4) must be DENIED . An order consistent with this Memorandum Opinion is separatel y and contemporaneously issued.

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