FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 24, 2002

THOMAS K. KAHN

CLERK

*

Honorable Federico A. Moreno, U.S. District Judge for the Southern

District of Florida, sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 01-10177

________________________

D. C. Docket No. 98-00690-CV-J-25A

DONALD SPENLAU,

individually and as Representative of the class,

G.E. WRIGHT,

individually and as Representative of the class, et al.,

Plaintiffs-Appellants,

versus

CSX TRANSPORTATION, INC.,

UNITED TRANSPORTATION UNION,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(January 24, 2002)

Before ANDERSON, Chief Judge, BLACK, Circuit Judge, and MORENO*

,

District Judge.

PER CURIAM:
1

The trainmen craft includes conductors, brakemen, and switchmen, not

engineers.

2

Appellants, a class consisting of locomotive engineers with retained

trainmen1

 seniority rights, appeal the order of the district court granting summary

judgment in favor of their employer, Appellee CSX Transportation, Inc. (CSX),

and the bargaining representative for trainmen, Appellee United Transportation

Union (UTU). We affirm.

I. BACKGROUND

The material facts underlying this appeal are not in dispute. This case

concerns a collective bargaining agreement between CSX and UTU which became

effective on July 31, 1992 (the Agreement). The Agreement, like previous

collective bargaining agreements, addressed the composition of train crews. Due

to technological advances, collective bargaining agreements have consistently

reduced the number of trainmen in train service crews over the last several

decades. To compensate for the reduction, two funds were established for

trainmen which provided extra compensation to those adversely affected by the

reduction. One of the goals of CSX in negotiating the Agreement with UTU was

the elimination of the two funds. In return for such elimination, while further

reducing crew size, the Agreement provided for CSX to buy out the two funds. 
3

The buyout program consisted of making two lump sum payments to each eligible

employee: $43,000 shortly after the effective date of the Agreement, and $57,500

upon retirement, resignation, dismissal, or death.

At issue during negotiations of the Agreement between CSX and UTU was

who would be eligible for the buyout program. UTU sought to include, among

other employees, those on the trainmen seniority rosters. Since trainmen on the

seniority rosters comprised a significant number of employees, which would

greatly increase the cost of the buyout program, CSX sought to exclude them. In

the end, the buyout program was available to those who were in “active train

service” on the date the Agreement was signed, and to union officials who returned

to train service.

Appellants were all locomotive engineers with trainmen seniority rights,

none of whom were in “active train service” at the time of the Agreement. While

UTU is the exclusive bargaining representative for trainmen, the Brotherhood of

Locomotive Engineers (BLE) is the exclusive bargaining representative for

locomotive engineers. The locomotive engineer position is generally filled out of

the ranks of the conductor or brakeman positions which are part of the trainmen

craft. The collective bargaining agreement between CSX and BLE allows CSX to

furlough an engineer due to a decline in the need for engineers and to return that
2

While the duty of fair representation may only be breached by a union, CSX

was included as a defendant in this case on the theory CSX colluded with UTU to

breach the duty of fair representation. Having decided UTU owed no duty to

Appellants, the district court necessarily concluded there was no collusion with

CSX to breach that duty.

4

engineer to trainmen service until engineers are needed again. Engineers cannot

voluntarily return to trainmen service. Under other collective bargaining

agreements between CSX and UTU, not at issue here, when a trainman is promoted

to engineer, he continues to accrue seniority as a trainman, enabling him to

exercise seniority rights should he be furloughed.

Appellants applied for the monetary benefits provided under the Agreement. 

CSX denied the claims because Appellants were not in active train service on the

qualifying date under the Agreement. Appellants then submitted their claims to

arbitration. In separate proceedings, two groups of claimants submitted their

claims to the National Railroad Adjustment Board. A third group of claimants

submitted their claims to Special Board of Adjustment No. 955. All three

arbitration proceedings resulted in decisions in favor of CSX. Thereafter,

Appellants filed this action in district court, alleging, among other claims, UTU

breached its duty of fair representation2

 in failing to secure Appellants inclusion as

eligible employees for the buyout program. Upon Appellees’ motion, the district

court granted summary judgment in favor of CSX and UTU. 
5

On appeal, Appellants contend the district court’s grant of summary

judgment was inappropriate because the district court failed to appreciate the

unique facts of this case requiring the conclusion UTU owed Appellants a duty of

fair representation in negotiating the Agreement. Appellants present two

arguments to support their position: (1) the trainmen seniority rights retained by

Appellants made them members of the bargaining unit for the trainmen craft; and

(2) even if Appellants were not members of the bargaining unit, UTU owes a duty

to non-members to refrain from arbitrary, discriminatory, and bad-faith acts in

negotiating for the trainmen craft. We affirm, without opinion, the district court’s

ruling on the second argument. See 11th Cir. R. 36-1. Only the first argument

warrants discussion.

II. DISCUSSION

We review de novo the district court's grant of summary judgment, applying

the same standard as the district court. See Coleman v. Miller, 117 F.3d 527, 529

(11th Cir. 1997). We view all evidence and factual inferences reasonably drawn

from the evidence in the light most favorable to the non-moving party, here,

Appellants. See St. Charles Foods, Inc. v. America's Favorite Chicken Co., 198

F.3d 815, 819 (11th Cir. 1999). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together
6

with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.

Civ. P. 56(c). 

“A union’s statutory duty of fair representation traditionally runs only to

members of its collective-bargaining unit, and is coextensive with its statutory

authority to act as the exclusive representative for all the employees within the

unit.” Schneider Moving & Storage Co. v. Roberts., 466 U.S. 364, 376 n.22, 104

S. Ct. 1844, 1851 n.22 (1984) (citations omitted). This duty is breached “only

when a union’s conduct toward a member of the collective bargaining unit is

arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, Administrator, 386 U.S.

171, 190, 87 S. Ct 903, 916 (1967)(citations omitted). A union’s primary objective

is to obtain the maximum overall compensation for its members, but this does not

mean the union cannot enter into agreements which may have unfavorable effects

on some members of the bargaining unit. Schneider, 466 U.S. at 376 n.22, 104 S.

Ct. at 1851 n.22; see also Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192,

203, 65 S. Ct. 226, 232 (1944).

Appellants urge us to recognize UTU owed them a duty of fair

representation by virtue of their retention of trainmen seniority rights, even though,

as engineers, BLE was their exclusive bargaining representative, and they were
3

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en

banc), this Court adopted as binding precedent all decisions of the former Fifth

Circuit handed down prior to close of business on September 30, 1981.

7

not in active service as trainmen at the time of the Agreement. Appellants argue

the unique duality of their situation as engineers with trainmen seniority rights

must be recognized or they are without representation as to their trainmen seniority

rights. In other contexts, our sister circuits have rejected applying the duty of fair

representation to employees outside the bargaining unit. See, e.g., McTighe v.

Mechanics Educ. Soc’y Local 19, 772 F.2d 210 (6th Cir. 1985) (holding union did

not owe a duty of fair representation to a supervisor, who was also a former

member of the union prior to his promotion); Karo v. San Diego Symphony

Orchestra Ass’n, 762 F.2d 819 (9th Cir. 1985) (holding union did not owe union

member a duty of fair representation because the union member was not an

employee); Anderson v. Alpha Portland Indus. Inc., 727 F.2d 177 (8th Cir. 1984)

(holding union did not owe retirees a duty of fair representation); Cooper v. Gen.

Motors Corp., 651 F.2d 249 (5th Cir. 1981)3

 (holding union did not owe

supervisors a duty of fair representation, even though the supervisors were

formerly within the bargaining unit and the union had formerly negotiated benefits

for them based on their status as former unit members). Additionally, seniority

rights are not vested rights, but a benefit granted to those outside the bargaining
8

unit, derived from collective bargaining agreements, and subject to modification

even to the extent of eliminating such rights entirely. See Cooper, 651 F.2d at 250-

51. 

Nevertheless, at the time of the Agreement, Appellants were engineers and

were not of the same class of employees as trainmen. Appellants were governed

by the collective bargaining agreement between CSX and their exclusive

bargaining representative, BLE. Therefore, UTU owed no duty of fair

representation to Appellants.

III. CONCLUSION

The district court correctly concluded Appellees were entitled to summary

judgment. 

AFFIRMED.