# Amicus Curiae Brief — Railway Labor Executives' Ass'n v. Chicago & North Western Transportation Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 812

## Text

No. 88-464 JOSEPH &. SPANIQL, JR.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, et al.,
Petitioners,
Ne

CHICAGO AND NORTH WESTERN
TRANSPORTATION COMPANY, et al.,
Respondents.

On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Seventh Circuit

BRIEF FOR THE NATIONAL RAILWAY LABOR
CONFERENCE AS AMICUS CURIAE
IN OPPOSITION TO THE PETITION

DAVID P. LEE

Vice Chairman and General Counsel
National Railway Labor Conference
1901 L Street, N.W.

Washington, D.C. 20036

(202) 862-7000

October 17, 1988 Counsel of Record for Amicus Curiae

WILSON - EPEs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

SI I te I i nenenisasenansnnstrinsinnccnanctocas il

38 ye oi ty Ee gh g 2 OY || Sea e 1

INTEREST OF AMICUS CURIAE .....000000000000000000000... 4

a sia enantansiinahe 7
The Decision Below Rests on the Incontrovertible
and Well-Settled Rule That Disputes over the Inter-
pretation of Labor Agreements Are for Arbitrators,
Not the Courts, Which Is Essential to Stable Labor

Relations in the Railroad Industry .................202......... 7

I is foratccty a ehansbhtateaetocaten cic nksts senha iiicadentomicnniinis 15

ii

TABLE OF AUTHORITIES

Cases: Page
Air Line Pilots Ass’n Vy. Eastern Air Lines, Nos.
88-7201 - 88-7204 (D.C. Cir. Sept. 30, 1988)...... 10
Andrews Vv. Louisville & N. R. Co., 406 U.S. 320
(UGTB) sccecainsconnscicecateaicciai se enpeieaaese tea anaaaannanaete 7
Baker v. United Transp. Union, 455 F.2d 149 (3d
Chr, WOTL) noc.cncccccconcoscscavsnneseseaee eee 10
Baylis v. Marriott Corp., 843 F.2d 658 (2d Cir.
DOB) niin sc scasesscicusckia meen uaeee 10
Brotherhood of Loc. Engineers V. Burlington N.
R.R., 838 F.2d 1302 (GER Gi. Ree escee se. 10

Brotherhood of Maintenance of Way Employees v.
Chicago & N.W. Transp. Co., 827 F.2d 330 (8th

Cir. 1987), cert. denied, 108 S.Ct. 1291 (1988).. 11
Brotherhood of Loc. Engineers v. Consolidated

Rail Corp., 844 F.2d 1218 (6th Cir. 1988) -.......... 10
Dement Vv. Richmond, F. & P. R.R., 845 F.2d 451

(4th Cir. 1968) 02005 ee 10
Elgin, J. & E. R. Co. v. Burley, 325 U.S. 711

©: < |;) BenMnrUNnmeReiti er 7,8, 14
Gateway Coal Co. v. United Mine Workers, 414

U.S. 368 (9974) oe "oe
General Committee v. M.-K.-T. R. Co., 320 U.S.

S28 (1948) uiccccniciie eee 8
Goclowski v. Penn Central Transp. Co., 505 F.2d

542 (3d Cir. Y97T} cocci 10
Gunther v. San Diego & A.E. R. Co., 382 U.S. 257

ASG) on cctscnsecnaese er nee 9,14
International Ass’n of Machinists v. Soo Line R.R.,

850 F.2d 368 (8th Cir. 1988) (en bane) ............. 10
Locomotive Engineers Vv. Louisville & N. R. Co.,

378 U.S. 38 (1968)... eee 7
Locomotive Engineers Vv. M.-K.-T. R. Co., 363 U.S.

GZS (RGD) oa cin ccccsccececeoueseee 3

Maine Central R.R. v. United Transp. Union, 787
F.2d 780 (1st Cir.), cert. denied, 479 U.S. 848

(1986)... ox-snesisiacsncncrennsconusgileeseeesis naan 10
Order of Conductors v. Pitney, 326 U. S. 561
(1946) ......2-.sisenessiasesncccseclonncaseaeseea inet! 8, 9, 12

Paperworkers v. Misco, 108 S.Ct. 364 (1987)........ 10

iii

TABLE OF AUTHORITIES—Continued

Page

Pennsylvania R. Co. v. Day, 360 U.S. 548 (1959)... 9
Railroad Trainmen Vv. Terminal Co., 394 U.S. 369

RSAC ENae ee eaten PECs Pts Mn nC laeeeEs 14

Railway Exp. Agency, Inc. V. Brotherhood of Ry.,

Airline & S.S. Clerks, 4837 F.2d 388 (5th Cir.),

cert. denied, 403 U.S. 919 (1972) ................20002.... 10
RLEA Vv. Boston & Maine Corp., 808 F.2d 150 (1st

Cir. 1986), cert. denied, 108 S.Ct. 102 (1987)... 10
Shore Line v. Transportation Union, 396 U.S. 142

REAR AReinenrleeaBA SE Rate tee eno 10, 11, 12
Slocum Vv. Delaware, L. & W. R. Co., 339 U.S. 239
ERS Taree ae eet I A ATT 7,9
Steelworkers v. Warrior & Gulf Navigation Co.,
Lk SE Ea aC Nh a
Trainmen V. Chicago R. & I. R. Co., 353 U.S. 30
a eo anes decbiapuedaoes 3, 14
Transportation Union v. U.P.R. Co., 385 U.S. 157
a oe a a lle hmamabaaainbace 11

Union Pacific R. Co. v. Price, 360 U.S. 601 (1959)... 9
Union Pacific R. Co. v. Sheehan, 439 U.S. 89
a issdasSaeatens 8, 9, 12, 13
United Transp. Union v. St. Paul Union Depot Co.,
434 F.2d 220 (8th Cir. 1970), cert. denied, 401

U.S. 975 (1971) ......... RES A pene ne NN AP SORE 10
Statutes:
Railway Labor Act:
BS oe |) | ren 8
Section 2 First, 45 U.S.C. § 152 First................. 11
Section 2 Seventh, 45 U.S.C. § 152 Seventh ....... 2,13
EY 8 8 |: eee eC 3,9
Section 3 First (i), 45 U.S.C. § 153 First (i) .... 12
EE NS ll | eae 2, 10, 13
National Labor Relations Act, 29 U.S.C. §§ 151-
I a apaiipesaeanied 9, 11, 14
i sescanchheonnnis 1,5
Miscellaneous:

Restatement (Second) of Contracts (1981) -.......... 11

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988
No. 88-464

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, et al.,
Petitioners,
v.

CHICAGO AND NORTH WESTERN
TRANSPORTATION COMPANY, et al.,
Respondents.

On Petition for a Writ of Certiorari to the
United States Court of Appeais for the Seventh Circuit

BRIEF FOR THE NATIONAL RAILWAY LABOR
CONFERENCE AS AMICUS CURIAE
IN OPPOSITION TO THE PETITION

This amicus brief is being filed with the written con-
sent of the parties pursuant to Supreme Court Rule 36.1.

STATEMENT OF THE CASE

Respondent Chicago & North Western Transportation
Company (“C&NW”) has agreed, with the approval of
the Interstate Commerce Commission under § 10901 of
the Interstate Commerce Act,' to sell approximately 208

149 US.C. § 10901.

2

miles of railroad line in Wisconsin, known as the “Duck
Creek South” lines, to respondent FRVR Corporation.
C&NW proposes to abolish the jobs it now maintains
along the lines upon consummation of the sale, acting
under what it believes is express authority granted to it
in “force-reduction” provisions in its collective bargain-
ing agreements with the unions that represent affected
employees. Petitioner Railway Labor Executives’ Asso-
ciation (“RLEA”), on behalf of its member unions, con-
tends to the contrary that the abolishments will change
the status quo with respect to “rates of pay, rules, and
working conditions” on the C&@NW and would therefore
give rise to a so-called “major dispute” and violate $§ 2
Seventh and 6 of the Railway Labor Act.*

RLEA threatened to strike C@NW over its alleged de-
parture from the status quo. In January, 1988, C&NW
filed suit in the district court for the Northern District
of Illinois for a declaratory judgment that such a strike
would be unlawful under both the Railway Labor Act
and the Interstate Commerce Act. RLEA counterclaimed
for a Railway Labor Act status quo injunction against
the proposed jok abolishments. On March 16, 1988, the
district court, on cross-motions by the parties for pre-
liminary injunctive relief, preliminarily enjoined the
strike and refused to enjoin the job abolishments. The
court found that C&NW’s claimed justification for the

2 Section 2 Seventh provides that a carrier may not “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 6] of this [Act].” 45 U.S.C.
§$ 152 Seventh. Section 6 provides that either party may propose
a “change in agreements” by written notice, and that while such
notice is pending “rates of pay, rules, and working conditions shall
not be altered by the carrier * * *.” 45 U.S.C. $156. RLEA
claimed § 6 was applicable in this case because certain of its mem-
ber unions had served notices proposing that C&NW agree to
provide labor protection for employees affected by the job abolish-
ments on the Duck Creek South lines.

3

job abolishments under the collective bargaining agree-
ments could not be dismissed as frivolous, and thus held
that RLEA’s challenge to the abolishments presented an
arbitrable “minor dispute” over the correct interpreta-
tion of the agreements under § 3 of the Railway Labor
Act, 45 U.S.C. $153. (Petition for Certiorari |“‘Pet.”’]
at 30a). As the court noted, strikes over minor disputes
are unlawful and enjoinable,* and courts lack jurisdiction
to enjoin carriers from implementing their interpreta-
tions of labor agreements pending arbitration of minor
disputes by adjustment boards under § 3 of the Railway
Labor Act unless employees will suffer harm in the in-
terim that cannot be remedied by an arbitrator.’ (Pet.
at 3la).

The United States Court of Appeals for the Seventh
Circuit affirmed the district court’s judgment on August
23, 1988. Setting forth the applicable Railway Labor Act
law, the court of appeals explained that if a “dispute
can be resolved by reference to the parties’ collective
bargaining agreement, i.e., if it is ‘arguably compre-
hended within an already existing collective bargaining
agreement,’ it is a minor dispute.” (Pet. at 9a) (cita-
tions omitted). If, the court continued, “ ‘the parties
disagree over whether the dispute can be resolved by ref-
erence to an agreement the dispute is minor unless the
claims of contractual justification are ‘frivolous’ or ‘ob-
viously insubstantial.’” (Jd. at lla) (citations omitted).
The court “carefully evaluated the claims of the parties
and examined the evidence in the record as to the terms
of their collective bargaining agreements and the rele-

3’The general ban on strike injunctions under the Norris-
LaGuardia Act is accommodated to $3 of the Railway Labor Act,
which prescribes peaceful resolution of minor disputes through
the arbitration process, as part of the “pattern of labor legislation.”
Trainmen V. Chicago R. & 1. R. Co., 353 U.S. 30, 42 (1957).

*See Locomotive Engineers Vv. M.-K.-T. R. Co., 363 U.S. 528
(1960).

4
vant past practices attendant to those agreements,” and
concluded that C&NW’s position that the Duck Creek
South job abolishments are authorized by its collective
bargaining agreements “has at least an arguable basis
in the * * * agreements and relevant past practice |{and]
cannot be said to constitute the type of clear departure
from those agreements necessary to trigger a finding of
a $6 major dispute * * *.” (Jd. at 14a-15a). The court
thus held that the dispute between the parties is minor,
that any strike over it would be unlawful, and that the
district court was “without jurisdiction to issue a broad
status quo injunction.” (Jd. at 19a-20a). Finally, the
court held that there was no occasion for the district
court to exercise its extraordinary equitable powers to
protect employees from irreparable harm pending ar-
bitration of the dispute, because if the adjustment board
“rejects C&NW’s interpretation of the collective bargain-
ing agreements and determines that the employees who
are displaced by the challenged rail line sale are entitled
to relief, it will be able to order the necessary payment
of monies and adjustments in seniority levels it deems
necessary to make those employees whole.” (Jd. at 21a).

INTEREST OF AMICUS CURIAE

The National Railway Labor Conference (“NRLC’’)
is an unincorporated association which includes almost
all of the nation’s class I railroads among its members.
NRLC represents member railroads in multi-employer
collective bargaining under the Railway Labor Act, as
well as in regard to other labor relations matters of
concern to the railroad industry generally. In addition,
the NRLC advises and assists its member railroads in
connection with Railway Labor Act arbitration of minor
disputes arising out of workplace grievances or the
interpretation or application of collective bargaining
agreements.

5

The NRLC has recently urged the Court to grant cer-
tiorari in other pending cases that raise questions as to
the lawfulness of strikes and the validity of union de-
mands for bargaining over labor protection in connec-
tion with ICC-approved line sales subject to imposition
of labor protection under § 10901 of the Interstate Com-
merce Act.® Those cases present questions as to the
proper accommodation between the contrary mandates of
the Interstate Commerce Act on the one hand and the
Railway Labor Act and the Norris-LaGuardia Act on the
other, over which the lower courts are in conflict and
which this Court has not addressed.

This case, as RLEA points out, “differs” from other
pending line sale cases because the court of appeals did
not address any question under the Interstate Commerce
Act or as to the relation of that Act’s labor protection
provisions to the other labor statutes that apply to the
railroad industry. (Pet. at 14). Indeed, the court of ap-
peals explicitly declined to reach such questions because
it found “a full and proper basis for affirming the dis-
trict court” in well-settled Railway Labor Act law as to
the arbitrability of minor disputes over the interpretation
or application of labor agreements. (/d. at 2la & n.6, 20a
n.4). RLEA’s petition in this case raises only a Rail-
way Labor Act question, challenging the established rule
that whether such an arbitrable dispute is presented in a
strike or status quo case depends on whether a carrier’s
contractual justification for its challenged actions is at
least arguably correct. (Pet. ati).

The disposition of the question presented here under
the Railway Labor Act can have no bearing on the merits
of the Interstate Commerce Act questions before the

5 Brief for the National Railway Labor Conference as Amicus
Curiae in Support of the Petition in Pittsburgh & Lake Erie R.R.
v. RLEA, No. 87-1888; Brief for the Naticnal Railway Labor Con-
ference as Amicus Curiae in Support of the Petition in Pittsburgh
& Lake Erie R.R. Vv. RLEA, No. 87-1589.

6

Court in the other pending line sale cases. Nor will the
ultimate result in this case obviate, as a practical matter,
the necessity for this Court to resolve the conflict among
the circuit courts of appeals as to the Interstate Com-
merce Act questions which, as we have explained in our
briefs in support of certiorari in the two Pittsburgh &
Lake Evie cases, threatens to halt the revitalization of
the industry through sales of marginal or otherwise
abandonable lines to new operators. Not all selling car-
riers will be in a position to rely on their collective bar-
gaining agreements in implementing the effects of these
sales on employees—indeed, the Pittsburgh & Lake Erie
Railroad made no minor dispute argument in the cases
now pending before the Court. Regardless of the result
in this case, the controversy over the effect of the Inter-
state Commerce Act on other labor laws will remain live
and divisive, and will require resolution by this Court.
Thus, we submit, granting the petition in this case will
not aid the Court in disposing of the Pittsburgh & Lake
Erie cases and other pending cases that present Inter-
state Commerce Act accommodation questions.

NRLC opposes the petition for certiorari in this case.
RLEA’s petition concededly seeks a radical departure
from the now well-settled law governing the arbitrability
of minor disputes over the interpretation and application
of labor agreements (Pet. at 19), which the courts of
appeals have unanimously applied, and which this Court
has often addressed. RLEA contends that the courts have
jurisdiction to “examine the merits of a rail carrier’s
reliance on collective bargaining agreements” in cases
where unions opt to challenge alleged departures from such
agreements as status quo violations, either by striking
or by suing for injunctive relief. (Pet. at i). RLEA is
not likely to prevail on that contention. It is contrary to
the Railway Labor Act’s express provision for arbitration
of minor disputes by the adjustment boards, to this
Court’s frequent admonitions that the boards’ jurisdic-

7

tion is “exclusive,” “ and to the strong “federal policy fav-
oring arbitration of labor disputes” generally,’ and
RLEA’s proffered new rule would destabilize labor rela-
tions in this vital national industry by encouraging liti-
gation and strikes over workplace grievances which arise
daily and now are committed to arbitration. The only ef-
fect that would ensue if the petition were granted would
be to create uncertainty in what has heretofore been set-
tled law while this Court reconsiders the question whether
the jurisdiction of adjustment boards over minor disputes
is exclusive—a question it has repeatedly answered affir-
matively—thus undercutting in the interim the ability of
railroads to rely on bargained-for rights and _ benefits
under their collective bargaining agreements when mak-
ing changes that are essential to their operations. Pre-
venting such injurious uncertainty is of paramount inter-
est to the NRLC and its member railroads.

ARGUMENT

The Decision Below Rests on the Incontrovertible and
Well-Setiled Rule That Disputes over the Interpretation
of Labor Agreements Are for Arbitrators, Not the Courts,
Which Is Essential to Stable Labor Relations in the
Railroad Industry

Under the Railway Labor Act, major disputes under
$§ 2 Seventh and 6 of the Act and minor disputes under
$3 of the Act “are sharply distinguished,” both ‘“sub-
stantively and procedurally,” as this Court first recog-
nized in Elgin, J. & E. R. Co. v. Burley, 325 U.S. 711,
722 (1945). Major disputes arise from efforts to “secure”
or “change the terms of” collective bargaining agree-

6E.g., Andrews v. Louisville & N. R. Co., 406 U.S. 320, 325
(1972); Locomotive Engineers Vv. Louisville & N. R. Co., 373 U.S.
33, 38 (1963); Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239,
244 (1950).

7Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 377
(1974).

8

ments, where “therefore the issue is not whether an exist-
ing agreement controls the controversy.” They “look to
the acquisition of rights for the future, not to assertion
of rights claimed to have vested in the past.” Id. at 723.
If the parties cannot reach agreement in a major dispute,
the union may strike. Jd. at 725. Minor disputes, by
contrast, relate “either to the meaning or proper applica-
tion of a particular provision” of an existing agreement
“with reference to a specific situation or to an omitted
ease.”’ That is, they involve claims “to rights accrued,
not merely to have new ones created for the future.” Id.
at 723. Minor disputes are committed to compulsory ar-
bitration by adjustment boards under § 3 of the Act. Jd.
at 727-28. Strikes over minor disputes are unlawful and
may be enjoined. Trainmen v. Chicago R. & I. R. Co.,
353 U.S. 30 (1957).

This Court has held time and again that the adjust-
ment boards’ jurisdiction over minor disputes is “exclu-
sive,’ * and has specifically held that “Congress consid-
ered it essential to keep * * * ‘minor’ disputes within the
Adjustment Board and out of the courts.” Union Pacific
R. Co. v. Sheehan, 439 U.S. 89, 94 (1978).° That con-
clusion follows directly from the Act’s fundamental pur-
pose of promoting “stability in labor-management rela-
tions in this important national industry.” J/d.; see 45
U.S.C. § 15la. The system of “internal government” under

8E.q., Andrews Vv. Louisville & N. R. Co., 406 U.S. 320, 325
(1972); Locomotive Engineers v. Louisville & N. R. Co., 373 U.S.
33, 38 (1963); Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239,
244 (1950).

*See also, e.g., Order of Conductors v. Pitney, 326 U.S. 561,
566 (1946) (Congress “intended to leave minimum responsibility
to the courts” under the Railway Labor Act); General Committee
Vv. M.-K.-T. R. Co., 320 U.S. 323, 333 (1943) (“The inference is
strong that [in the Railway Labor Act] Congress intended to go
no further in its use of the processes of adjudication and litigation
than the express provisions of the Act indicate.’’).

9

§3 of the Act” was designed “to secure the prompt,
orderly and final settlement of grievances that arise daily
between employees and carriers” as to the proper inter-
pretation and application of collective bargaining agree-
ments, express and implied,’ to place such grievances
in the hands of expert arbitrators versed in the railroad
industry’s customs and practices,’ and ultimately to min-
imize conflicts between labor and management leading to
interruptions of transportation services.’* The Railway
Labor Act thus expresses by statutory mandate the
strong “federal policy favoring arbitration of labor dis-
putes” that this Court has held applies even where, as
under the National Labor Relations Act, arbitration is
mandatory only if the parties agree to it. Gateway Coal
Co. v. United Mine Workers, 414 U.S. 368, 377 (1974).

Under the Railway Labor Act, it frequently happens,
as it did in this case, that labor will challenge action by
a carrier that the carrier believes is authorized under
existing agreements, and the parties will disagree as to
whether the resulting dispute is major or minor. In such
cases, the carrier will contend that the change it has
made or proposes making is authorized under its existing
agreements and thus that any union challenge can pre-
sent only a minor dispute. The union will contend that
the carrier’s action is an unauthorized departure from
the status quo that gives rise to a major dispute. Every
court of appeals that has been presented with such a
case has recognized, as the court of appeals did in this
case, that the “status quo” includes the carrier’s rights

10 Pennsylvania R. Co. V. Day, 360 U.S. 548, 552 (1959).

11 Union Pacific R. Co. v. Sheehan, supra, 439 U.S. at 94; see
45 U.S.C. § 151a(5).

12 Gunther v. San Diego & A.E. R. Co., 382 U.S. 257, 261 (1965) ;
Order of Conductors v. Pitney, supra, 326 U.S. at 566-67.

13 Slocum, supra, 339 U.S. at 242; Union Pacific R. Co. v. Price,
360 U.S. 601, 609 (1959).

10

under existing agreements,'* and has held that the dis-
pute is minor if the carrier’s position under its agree-
ments is at least “arguable,” or is not “frivolous” or
“obviously insubstantial.”

RLEA attacks this uniform approach on two bases,
both of which are irreconcilable with the Act’s provisions
and with applicable decisions of this Court:

1. First, RLEA contends that, at least in cases where
unions have served $6 notices seeking to change the
existing agreements, the courts’ power to enforce the
status quo under § 6 gives them jurisdiction to determine
“what working conditions constitute the status quo,” and
to disregard the carriers’ rights under existing agree-
ments in making that determination. (Pet. at 26). Ac-
cording to RLEA, that follows from this Court’s decision
in Shore Line v. Transportation Union, 396 U.S. 142
(1969). In Shore Line, the Court rejected a carrier’s
contention that its obligation under $6 to maintain un-
changed the “working eonditions” in effect when a § 6
service was served until major dispute procedures are

14 See, e.g., RLEA v. Boston & Maine Corp., 808 F.2d 150, 156
(Ist Cir. 1986); Baker v. United Transp. Union, 455 F.2d 149,
157 (3d Cir. 1971); United Transp. Union v. St. Paul Union Depot
Co., 434 F.2d 220, 223 (8th Cir. 1970).

15 Jn addition to the decision below, see, e.g., Air Line Pilots
Ass'n V. Eastern Air Lines, Nos. 88-7201 - 88-2074 (D.C. Cir. Sept.
30, 1988); Maine Central R.R. v. United Transp. Union, 787 F.2d
780 (1st Cir. 1986); Baylis v. Marriott Corp., 843 F.2d 658, 663 (2d
Cir. 1988); Goclowski v. Penn Central Transp. Co., 571 F.2d 747,
755 n.11 (3d Cir. 1977); Dement v. Richmond, F. & P. R.R., 845
F.2d 451, 463 (4th Cir. 1988); Railway Exp. Agency, Inc. v. Brother-
hood of Ry., Airline & S.S. Clerks, 437 F.2d 388, 392 (5th Cir.
1972); Brotherhood of Loc. Engineers Vv. Consolidated Rail Corp.,
844 F.2d 1218, 1221 (6th Cir. 1988) ; International Ass’n of Machin-
ists Vv. Soo Line R.R., 850 F.2d 368, 376-77 (8th Cir. 1988) (en
banc): Brotherhood of Loc. Engineers Vv. Burlington N. R.R., 838
F.2d 1102, 1105 (9th Cir. 1988). Cf. Paperworkers v. Misco, 108
S.Ct. 364, 371 (1987).

11

exhausted extended only to those working conditions ex-
pressly provided for in written agreements, and held that
the status quo includes all ‘actual, objective working
conditions and practices broadly conceived.” 396 U.S.
at 143, 153.

But Shore Line did not hold that the earrier’s rights
under existing agreements are nullified by the status quo
obligation triggered by a union’s §6 notice, as RLEA
contends. On the contrary, the Court was at pains to
note that, even though the written agreements did not
address the carrier’s right to make the changes in work
assignments that the union challenged, the fact that a
§$ 6 notice was pending “would not have barred the rail-
road from ordering the assignments * * * if, apart from
the [written] agreement, such assignments had occurred
for a sufficient period of time with the knowledge and
acquiescence of the employees to become in reality a part
of the actual working conditions.” 396 U.S. at 153-54."
RLEA’s view of the Act’s status quo provisions as in-
struments of destruction of established contractual rights,
rather than their preservation, far from being supported
by Shore Line, is directly contrary to that decision, and
to the Act itself, which seeks to “maintain agreements,”
not to nullify them. See 45 U.S.C. § 152 First.

2. Second, RLEA contends that, even if a carrier’s
agreements are relevant in a status quo case, the uniform
standard being applied by the courts of appeals, which
looks only to whether the carrier’s justification for its

16“ T]he practices of the industry and the shop [are] equally a
part of the collective bargaining agreement although not expressed
in it,” as this Court noted in a case arising under the National
Labor Relations Act. Steelworkers v. Warrior & Gulf Navigation
Co., 363 U.S. 574, 581-82 (1960). The axiomatic rule that such
established past practices are part of the implied agreement of the
parties (see Restatement (Second) of Contracts §$ 223 (1981)) is
equally applicable under the Railway Labor Act. See, e.a., Trans-
portation Union v. U.P.R. Co., 385 U.S. 157, 161 (1966); Brother-
hood of Maintenance of Way Employces Vv. Chicago & N.W. Transp.
Co., 827 F.2d 330, 334 (8th Cir. 1987).

12

actions under its agreements is at least “arguable,” is
unduly “myopic.” (Pet. at 19). According to RLEA, the
courts should have the power to “examine the merits of
a rail carrier’s reliance on collective bargaining agree-
ments and past practice” in status quo cases, since it is
up to the courts to enforce the status quo. (Pet. at i,
22). That contention is untenable, because the uniform
standard is the only permissible one under the Act. If a
earrier’s claim of contractual justification for a chal-
lenged action is arguably correct and cannot be dismissed
as “frivolous” or “obviously insubstantial,’’ then a ques-
tion as to the proper interpretation of the agreements
is presented. That is precisely the type of question that
the adjustment boards were created to resolve—the “‘in-
terpretation or application” of labor agreements, 45
U.S.C. $153 First (i)—and that Congress intended to
keep “out of the courts.” Union Pacific v. Sheehan,
supra, 439 U.S. at 94. This Court recognized that in
Pitney, supra, holding that where a carrier’s defense to
a $6 or § 2 Seventh claim puts the meaning of its labor
agreements into issue, the court must stay its hand until
“after the Adjustment Board acts * * *.” 326 U.S. at
565-67."7 If courts in status quo cases took any harder
look after determining that a question of contract inter-
pretation is presented, they would unquestionably be
poaching on the statutory preserve of the adjustment
boards.

17 In the later Shore Line case, the carrier did not contend that its
existing agreements authorized it to make the challenged changes,
and so there was no occasion for this Court to address the question
presented in this case, and in Pitney, i.e., whether, if such a conten-
tion had been made and contested by the union, the court could have
proceeded to decide it. Shore Line did not, thus, overrule Pitney,
and indeed Shore Line reaffirmed the holding in Pitney that where
the question whether a carrier’s unilateral action violates the status
quo depends on the parties’ rights under existing agreements, “the
proper forum for interpreting the agreements [is] the Adjustment
Board provided by Congress in the Railway Labor Act, §3 First
(i), for that purpose * * *.” 396 U.S. at 156-57.

13

A rule that would classify disputes as minor or major
not according to whether they are, in fact, disputes over
the interpretation of agreements, but according to the
means by which rail labor chooses to challenge carrier
actions, would thus obliterate the distinction between
major and minor disputes for all practical purposes.
Rail labor, at its option, could bring any minor dispute
to court, simply by claiming that what it perceives as
a carrier’s departure from existing agreements violates
the status quo under §§2 Seventh or 6, and either
suing for a status quo injunction or striking and com-
pelling the carrier to come to court for relief. In either
case, the court would be free to decide the merits of
the parties’ respective positions on the agreements, thus
eliminating any role for the adjustment board in the
dispute.

If that were the rule, Congress’ purpose in creating
the adjustment boards in the first instance-—to promote
stable labor relations in the railroad industry and avoid
interruptions to commerce—would be nullified. Unions
would have every incentive to strike or sue in opposition
to carrier actions; labor and management would be
locked in battle, either in the streets or in the courts,
over minor disputes, rather than attempting to adjust
them amicably and submitting them to arbitration by
“a tribunal consisting of workers and management to
secure * * * prompt, orderly, and final settlement * * *,”
as Congress intended. Union Pacific v. Sheehan, supra,
439 U.S. at 94. And justifiable expectations under labor
contracts could be set at naught, for carriers could be
enjoined from acting, or subjected to strikes, or unions
enjoined from striking, on the basis of contract inter-
pretations by the courts, which this Court has recog-
nized are singularly unsuited for such a task.'®

18“(T}he industrial common law—the practices of the industry
and the shop—is * * * a part of the collective bargaining
agreement although not expressed in it. The labor arbitrator

14

Nothing in the Act warrants such a chaotic result.
Nothing in this Court’s decisions supports it, and indeed
they are squarely to the contrary. The Court has held
that arbitration of minor disputes is not optional, as
RLEA contends, but is “compulsory.” Chicago R. & L.,
supra, 353 U.S. at 34, 39; see Elgin, supra, 325 at 727-
28. It has held in an unbroken line of cases that the
Board’s jurisdiction in that regard is exclusive. Every
court of appeals that has been presented with the ques-
tion has heeded that admonition, and has accepted the
same standard applied by the court of appeals in this
ease for protecting the exclusivity of the Act’s arbitra-
tion remedies by ensuring that minor disputes are not
brought to court under the guise of status quo claims.
Nothing in RLEA’s petition suggests any basis for re-
viewing that well-settled law, much less for overruling
the decisions of all those courts, and still less for over-
ruling the numerous decisions of this Court, from E/qgin
down to Sheehan, that would have to be overruled in
whole or in part to reach that result.

is usually chosen because of the parties’ confidence in his
knowledge of the common law of the shop and their trust in
his personal judgment to bring to bear considerations which
are not expressed in the contract. * * * The ablest judge cannot
be expected to bring the same experience and competence to
bear upon the determination of a grievance, because he cannot
be similarly informed.” Warrior & Gulf, supra, 363 U.S. at
581-582.

That observation, made in a National Labor Relations Act case,
applies with even greater force under the Railway Labor Act.
“From the point of view of industrial relations our railroads are
largely a thing apart. * * * ‘The railroad world is like a state within
a state. Its population * * * has its own customs and its own vocabu-
lary, and lives according to rules of its own making * * *.’” Elgin,
supra, 325 U.S. at 751 (citations omitted); accord Railroad Train-
men V. Terminal Co., 394 U.S. 369, 392 (1969). Adjustment boards
are “peculiarly familiar with the thorny problems and the whole
range of grievances that constantly exist in the railroad world.”
Gunther, supra, 382 U.S. at 261.

The petition for a

October 17, 1988

15

CONCLUSION

writ of certiorari should be denied.

Respectfully submitted,

DAVID P. LEE

Vice Chairman and General Counsel
National Railway Labor Conference
1901 L Street, N.W.

Washington, D.C. 20036

(202) 862-7000

Counsel of Record for Amicus Curiae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0136%3A4. Public record. Not legal advice.