# Rea Express, Inc. v. Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees > Court of Appeals for the Fifth Circuit · May 1, 1972 · 459 F.2d 226 URL: https://www.frixlaw.com/law-library/cases/9458102 ## Case - **Full name:** REA EXPRESS, INC., Plaintiff-Appellant, v. BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES, Et Al., Defendants-Appellees - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** May 1, 1972 - **Citations:** 459 F.2d 226; 80 L.R.R.M. (BNA) 2206; 1972 U.S. App. LEXIS 9830 - **Precedential status:** Published - **Opinion:** Dissent by Ainsworth - **Judges:** Bell, Ainsworth, Godbold - **Cited by:** 33 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9458102 ## Opinion text AINSWORTH, Circuit Judge (dissenting) : The principal issue here is whether the labor dispute between the parties is a major or minor dispute. I differ with the majority and agree with the District Court (Judge Edenfield) that the present case involves a major dispute. I, therefore, would affirm the District Court for the reasons pointed out in Judge Edenfield’s well-reasoned, written opinion, which reads in pertinent part as follows: As in many of these cases, all parties concede that a determination of the single question whether the dispute here is a “major” dispute on the one hand or a “minor” dispute on the other will be largely determinative. A major dispute, of course, includes disputes over rates of pay, rules, working conditions to be included in new contracts, or changes to be made in existing contracts. The Railway Labor Act also provides ( 45 U.S.C. § 152 (Seventh)) with respect to major disputes, that “no carrier, its officers, or agents shall change the rates of pay, rules, or working conditions of its employees, as a class, as embodied in agreements except in the manner prescribed in such agreements or in section 156 of this title.” Section 156 in turn provides that the provisions in the agreement regarding rates of pay, rules, and working conditions shall not be altered until the eon-troversy has finally been acted upon by the Mediation Board. Minor disputes on the other hand are those regarding the mere interpretation or application of existing collective bargaining agreements. Where a minor dispute is involved, compulsory arbitration before the National Railway Adjustment Board is required. For a general discussion of the difference between major and minor disputes, see Elgin, Joliet & Eastern Ry. v. Burley, 325 U.S. 711 , 65 S.Ct. 1282 , 89 L.Ed. 1886 . See also St. Louis, S. F. & T. Ry. v. Railroad Yardmasters of America, 328 F.2d 749 (5th Cir. 1964), where Judge Tuttle discussed a minor dispute as one in which the respective contentions of the parties are based on existing agreements regarding rights that have already accrued. The court finds, and indeed all parties virtually agree, that the changes which the carrier proposed to unilaterally implement in this case, standing alone, would clearly involve a major dispute 2 and that, nothing else appearing, the carrier could not put them into effect until there had been either an agreement with the union or the controversy had been finally acted on by the Mediation Board. 45 U.S.C. § 156 , supra. Of course this court realizes that not every issue between the carrier and the union relating to “rates of pay, rules or working conditions” requires that § 6 be invoked. It must be invoked, however, where a unilateral change with respect to these matters, not provided for by contract, is proposed. See St. Louis, S. F. & T. Ry., supra at 753. The plaintiff carrier, however, seeks to avoid the conclusion that a major dispute is involved on the ground that the changes it proposed were either expressly au *234 thorized, or at least arguably authorized, under the existing contract between the parties, and that the provisions of the agreement together with the last clause of § 2, Seventh, of the Railway Labor Act ( 45 U.S.C. § 152 , Seventh), supra, permit it to unilaterally make the proposed changes irrespective of what kind of dispute might otherwise be involved. It also asserts that the dispute in any event can only be a minor one since it only involves an interpretation of the bargaining agreement. 3 With respect to all of the questioned runs, save two, 4 the court simply cannot accept plaintiff’s contentions that the changes unilaterally proposed (and now unilaterally implemented) by the carrier are expressly or even arguably permitted under the agreement between the parties or under the RLA. Instead, the court concludes that a major dispute is involved, that the carrier had no authority under the Act to implement these changes without either mediation or agreement with the union, and that further implementation must be enjoined and the status quo restored. Detroit & Toledo Shoreline R. R. v. United Transportation Union, 396 U.S. 142 , 90 S.Ct. 294 , 24 L.Ed.2d 325 (1969). It might be well at this point to cap-súlate plaintiff’s contentions and to assign the reasons why the court believes they are untenable. Reduced to bare bones, the plaintiff’s argument runs like this: (1) Section 2, seventh, of the RLA ( 45 U.S.C. § 152 , Seventh) permits a carrier to change rates of pay or working conditions, “as embodied in agreements” either as prescribed in 45 U.S.C. § 156 or “in the manner prescribed in such agreements . . . ” ; (2) the changes which it proposes are either prescribed (embodied) in the existing agreement or at least are “arguably” so; (3) if the changes are expressly authorized (embodied) in the existing agreement they are also authorized under the foregoing section of the RLA; (4) if the changes are only “arguably” authorized or embodied in the existing agreement an interpretation becomes necessary to determine whether they are so authorized and embodied, and any question of interpretation of the contract is ipso facto classified by the Act as only a minor dispute (whatever it might otherwise be), and therefore compulsory arbitration under either section 3 of the Act, rather than mediation, is all that is required. RLA § 3(i), 45 U.S.C. § 153 (i). The court agrees with plaintiff that the existing agreement may at least “arguably” authorize compulsory arbitration where only entirely new over-the- *235 road “runs” are proposed to be instituted; but out of 17 runs in controversy only one falls in this category while as to at least 16 others what is proposed by-plaintiff is not the institution of a new run but a change in rates of pay and conditions of employment on an existing over-the-road run. With respect to these 16 proposed changes the court cannot agree that they are either “expressly” or even “arguably” authorized by or embodied in the existing agreement; and, being neither expressly nor arguably so authorized, these changes can only be made in accordance with 45 U.S.C. § 156 . In short, as to them, a major dispute is involved and the court does not have to resort to a forbidden “interpretation” of the Act 5 to arrive at this conclusion. All it has to do is read and apply the plain and unambiguous language of Rule 8 of the agreement and the “Memorandum of Understanding” adopted in explanation thereof. 6 Rule 8 of the existing labor agreement begins by saying that “By agreement with the General Chairmen” certain other rules may be suspended and special provisions established governing hours of service and basis of pay on over-the-road runs. But here there has been no “agreement with the General Chairmen” as the rule requires. Instead, the company proposes tp make the changes, and indeed has made them, unilaterally. Rule 8 itself clearly does not authorize or justify plaintiff’s action in making the changes, either “arguably” or otherwise. But plaintiff then relies on the “Memorandum of Understanding” as to the “Application of Rule 8” (p. 42 of the agreement) and after citing the provisions of the Memorandum authorizing submission of the issues to future compulsory arbitration in the event of failure to agree, it relies particularly on the next sentence (the last sentence of the second full paragraph of the Memorandum), which says: “The issues submitted [to future arbitration] . . . shall not include any question as to the right of the company to establish the run but shall be confined to the manner of implementing the run.” Plaintiff strenuously urges that this sentence applies to both the creation of entirely new runs (established to replace rail service) and to the restructuring of existing runs. In fact it says that both are the same — that a restructured existing run is a new run — and that pursuant to this sentence it can unilaterally restructure old runs, change rates of pay, change working conditions, relocate employees, and violate existing seniority districts at will, provided only that it arbitrate the changes later. At the risk of indulging in a forbidden “interpretation” of the agreement the court could not accept this reading of what appears to be plain language in any event. As we read the Memorandum it plainly distinguishes between new runs and existing runs and treats each differently, separately, and in the disjunctive. By the express language of the Memorandum its first sentence relates only to existing runs and the balance of the Memorandum, including the sentence relied on by plaintiff, relates only to the new. This sentence, therefore, cannot be applied to changes in an existing run. But even if this be a forbidden judicial interpretation of the agreement (memorandum), and even if such interpretation is wrong, plaintiff nevertheless cannot prevail on its contention that the agreement (memorandum) authorizes what it has unilaterally done. This for four succinct reasons: First: Conceding that under section 2, Seventh, of the RLA, swpra, work *236 ing conditions and rates of pay “as embodied in agreements” can be changed “in the manner prescribed in such agreements”, the agreement (memorandum) here does not even mention working conditions or rates of pay and hence there is no agreement as to how they shall be changed. Certainly they cannot be so changed where the agreement is silent. Detroit & Toledo Shoreline R. R. v. United Transportation Union, 396 U.S. 142 , 90 S.Ct. 294 , 24 L.Ed.2d 325 (1969). 7 Finally, even reading the memorandum as plaintiff reads it, it nowhere says or suggests that under any circumstances the carrier can implement the run before the proposed arbitration, as was done in this ease. Second: If the agreement (memorandum) did mention working conditions and rates of pay, either expressly or impliedly (which it does not), and if it did provide for implementation first and arbitration later, it still would not suffice. It would be only an agreement to make an agreement in the future. This is presently no “agreement” at all. At least it is certainly not the kind of agreement contemplated in section 2, Seventh, of the Act. To hold otherwise would, as to major disputes, do away with the Act by substitution and postponement. Third: If the agreement (memorandum) does propose what plaintiff contends (as set forth in the preceding paragraph) such provision would be void and unenforceable as contravening and reversing the order of procedure so carefully prescribed by Congress for major disputes, and as contravening the mandate of Congress, several times repeated, that existing working conditions and rates of pay shall be changed only after attempted section 7 arbitration, not before. In short, it would eliminate the requirements of the Act respecting maintenance of the status quo. See Detroit & Toledo Shoreline R.R. v. United Transportation Union, supra. Fourth: If the agreement (memorandum) means what plaintiff contends, and if such provision were allowed, it would also contravene the mandate of Congress by making arbitration of major disputes compulsory, whereas section 5, first, of the RLA specifically and purposely makes such arbitration voluntary (see Detroit & Toledo R.R. v. United Transportation Union, supra). Such change would therefore take negotiations respecting changes in working conditions and pay out of the hands of the parties and turn them over to arbitrators, thereby allowing the arbitrators, in effect, to make a new contract between the parties. In short, what plaintiff proposes is to do away with the procedures prescribed by the RLA by substitution. If such action were allowed the whole scheme of the Act would be set at naught and all the evils which it seeks to eliminate revisited upon the parties and the public. *237 As the Supreme Court has said in a somewhat similar context: “The processes of bargaining and mediation called for by the Act would indeed become a sham if a carrier could unilaterally achieve what the Act requires be done by the other orderly procedures.” Brotherhood of Railway, Airline & Steamship Clerks etc. v. Florida East Coast R.R., 384 U.S. 238, 247 , 86 S.Ct. 1420, 1425 , 16 L.Ed. 2d 501 . Accordingly, I respectfully dissent. . It is beyond question under the evidence that these changes directly altered rates of pay, working conditions, and seniority districts of the drivers involved. . REA vigorously relies on the recent case of Northwest Airlines, Inc. v. Airline Pilots Ass’n., Intl., 442 F.2d 251 , 8th Cir., 1971. As REA contends, this case does indicate that if a dispute between a carrier and a union arguably arises out of an interpretation of the collective bargaining agreement, the dispute should be submitted to arbitration. In Northwest, the Circuit Court found that a “no strike” clause must be implied from a study of the entire collective bargaining agreement and the history of the negotiations between the parties. The Court then decided that the union strike arguably came within this implied no-strike clause, and the dispute should thus be submitted to arbitration. The Northwest case presents nothing new. As long ago as 1964, Judge Tuttle held a dispute to be minor when he found the carrier had raised “a substantial issue as to the interpretation of the contract. It is not a fictitious or merely colorable issue. Before a tribunal can decide that the terminations at issue were not justified, it must construe the language of Rule 16(e).” St. Louis, S.F. & T.Ry. v. Railroad Yardmasters of America, 328 F.2d 749 (5th Cir. 1964). We do not reject the basic proposition propounded by plaintiff. Rather, we feel plaintiff cannot come within its proposition. . These were entirely new runs, not existing runs which were to be restructured. As shown later, there may or may not be a difference. . See Aaxico Airlines, Inc. v. Airlines Pilots Ass’n. Intl., 331 F.2d 433 (5th Cir. 1964). . Though the court cannot interpret, the court can read the plain English in the contract. See discussion in St. Louis S.F. & T.Ry., supra. . This case is not like Rutland Railway Corp. v. Brotherhood of Locomotive Engineers, 307 F.2d 21 (2d Cir. 1962), cert. denied 372 U.S. 954 , 83 S.Ct. 949 , 9 L. Ed.2d 978 (1963), on which REA so heavily relies. In Rutland, the railroad unilaterally rescheduled train runs with a resultant loss of employment and displacement of personnel. Though there was no express provision in the collective bargaining agreement granting the railroads the right to unilaterally reschedule runs, the Court found that the past history of relations between the parties might have made the right to reschedule runs an implicit part of the managerial prerogative clause of the collective bargaining agreement. Here, the past history of the REA and BRAC conduct involving the restructuring of runs overwhelmingly supports the conclusion that REA has no such right to unilaterally reschedule runs, thus changing working conditions. The testimony is that in recent years between 600 and 700 runs have been restructured after negotiation and agreement between the parties. Thus the history of the parties’ relations, like Rule 8, indicates that the provisions regarding basis of pay and other working conditions may be altered only by agreement, not by unilateral action. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9458102. Public record. Not legal advice.