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 trainmen 1 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 tr ainmen, Appellee United Transportation Union (UTU). We affirm.
I. BACKGROUND The material facts underlying this app eal are not in dispute. This case concerns a collective bargaining agreem ent between CSX and UTU which became effective on July 31, 1992 (the Agreem ent). The Agreement, like previous collective bargaining agreements, addresse d the composition of train crews. Due to technological advances, collective bargaining agreements have consistently reduced the number of trainmen in trai n service crews over the last several decades. To compensate for the reduc tion, two funds were established for trainmen which provided extra compensation to those adversely affected by the reduction. One of the goals of CSX innegotiating 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 seni ority 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 si gned, and to union officials who returned to train service. Appellants were all locomotive engin eers with trainmen seniority rights, none of whom were in “active train serv ice” at the time of the Agreement. While UTU is the exclusive bargaining repres entative for trainmen, the Brotherhood of Locomotive Engineers (BLE) is the ex clusive bargaining representative for locomotive engineers. The locomotive e ngineer position is generally filled out of the ranks of the conductor or brakeman positions which are part of the trainmen craft. The collective bargaining agreem ent between CSX and BLE allows CSX to furlough an engineer due to a decline in th e need for engineers and to return that2 While the duty of fair representation may only be breached by a union, CSX was included as a defendant in this cas e 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 necessar ily concluded there was no collusion with CSX to breach that duty.
4 engineer to trainmen service until engin eers are needed again. Engineers cannot voluntarily return to trainmen service. Under other collective bargaining agreements between CSX and UTU, not at i ssue here, when a trainman is promoted to engineer, he continues to accrue se niority as a trainman, enabling him to exercise seniority rights should he be furloughed. Appellants applied for the monetary be nefits 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 d ecisions in favor of CSX. Thereafter, Appellants filed this action in district court, alleging, among other claims, UTU breached its duty of fair representation 2 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 di strict 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. See11th 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, together6 with the affidavits, if any, show that th ere 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 repres entative 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 were3 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 clos e of business on September 30, 1981.
7 not in active service as trainmen at th e 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 re presentation as to their trainmen seniority rights. In other contexts, our sister circ uits 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 representati on 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 bargaining8 unit, derived from collective bargaining ag reements, 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 Agr eement, 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 concl uded Appellees were entitled to summary judgment.
AFFIRMED.