Appendix — International Ass'n of Machinists & Aerospace Workers, District Lodge No. 19 v. Soo Line Railroad
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88-701
IN THE
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CLERK
Sapreme Covert, U.S.
FILED
OCT 27 We
JR.
Siygrenw Cort of the United States
OCTOBER TERM, 1988
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, DISTRICT LODGE No. 19,
Petitioner,
Soo LINE RAILROAD COMPANY,
Respondent.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH C*RCUIT
Of Counsel
ROGER A. JENSEN
PETERSON. BELL, CONVERSE
AND JENSEN
2100 American National
Bank Building
St. Paul, Minnesota 55101
(612) 224-4703
Date: October 27, 1988
WILLIAM G. MAHONEY
JOHN O’B. CLARKE, JR.*
HIGHSAW & MAHONEY, P.C.
Suite 210
1050 17th Street, N.W.
Washington, D.C. 20036
(202) 296-8500
Attorneys for Petitioner
International Association
of Machinists and
Aerospace Workers,
District Lodge No. 19
* Counsel of Record
WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
® Qe te 50
agree
Appendix
Appendix
Appendix
Appendix
Appendix
TABLE OF CONTENTS
International Association of Machinists
and Aerospace Workers, District Lodge
No. 19 v. Soo Line Railroad Company,
850 F.2d 368 (8th Cir. 1988) (en banc)..
International Association of Machinists
and Aerospace Workers, District Lodge
No. 19 v. Soo Line Railroad Company,
833 F.2d 730 (8th Cir. 1987) ..................
International Association of Machinists
and Aerospace Workers, District Lodge
No. 19 v. Soo Line Railroad Company,
D. Minn. Civit No. 4-86-353, Order
granting permanent injunction, dated
August 13, 1986 (Rosenbaum, J.) ........
Judgment in International Association
of Machinists and Aerospace Workers,
District Lodge No. 19 v. Soo Line Rail-
road Company, 8th Cir. No. 86-5355
MN, dated June 22, 1988 .....00000-...ooo..
STATUTES RELIED UPON .............. rs
I. Railway Labor Act, 45 U.S.C. § 151,
et seq. (Excerpts)
A. Section 2 First, 45 U.S.C. § 152
First
B. Section 2 Third, 45 U.S.C. § 152
Third
C. Section 2 Fourth, 45 U.S.C. § 152
Fourth
D. Section 2 Eighth, 45 U.S.C. § 152
Eighth
EK. Section 2 Ninth, 45 U.S.C. § 152
Ninth
F. Section 6, 45 U.S.C. § 156
Page
la
42a
64a
73a
74a
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 86-5355
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AERO-
SPACE WORKERS, DISTRICT LODGE No. 19, an- unincor-
porated labor organization,
Appellee,
V.
Soo LINE RAILROAD COMPANY, a Minnesota corporation,
Appellant.
Appeal from the United States District Court
for the District of Minnesota
Submitted: February 12, 1988
Filed: June 22, 1988
Before LAY, Chief Judge, HEANEY, McMILLIAN,
ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN,
WOLLMAN, MAGILL and BEAM, Circuit Judges,
en bance.
MAGILL, Circuit Judge.
In this case we examine whether an employee has the
right to seek out his employer and voluntarily quit his
2a
job on terms agreeable to both him and his employer, or
whether that basic right must be bargained for on his
behalf by his union. The Soo Line Railroad Company
(Soo Line) appeals from a decision of the United States
District Court for the District of Minnesota, permanently
enjoining the Soo Line from entering into voluntary
separation agreements with individual members of the
International Association of Machinists and Aerospace
Workers, District Lodge No. 19 (IAM or Union).
The Soo Line contends on appeal that the district court
did not have subject matter jurisdiction over the dis-
agreement between the Soo Line and IAM because (1)
the disagreement between them is not a dispute, as that
term is used in the Railway Labor Act, 45 U.S.C. §§ 151-
188 (RLA); (2) even if the disagreement is a dispute
within the ambit of the RLA, it is a minor dispute sub-
ject to resolution by the National Railroad Adjustment
Board; and (3) the pertinent agreements between the
Soo Line and IAM require arbitration of any dispute
arising out of their interpretation or application, and
this is such a dispute.
We discuss these sequentially. Section 2 of the Rail-
way Labor Act, 45 U.S.C. § 151a, sets out the disputes to
which it applies as “all disputes concerning rates of pay,
rules, or working conditions” and “all disputes growing
out of grievances or out of the interpretation or appli-
cation of agreements covering rates of pay, rules, or
working conditions.” As we explain more fully in Section
II(B), numerous courts have assumed the presence of a
labor dispute in situations similar to the one at issue.’
1 Moreover, aS we will explain in greater detail, a pertinent
agreement in this case contains arbitration clauses. As this court
has stated:
[Wlhen disagreement arises between the parties whether a
particular dispute is arbitrable under the terms of the gov-
erning labor agreement, courts will broadly construe the agree-
ment in favor of arbitrability, resolving doubts on the side of
3a
We therefore base our decision on the Soo Line’s second
and third arguments. Accordingly, we conclude that the
district court erroneously asserted equitable jurisdiction
in this case, and we reverse and remand for arbitration.?
I. BACKGROUND
This case has its genesis on February 19, 1985, when
the Soo Line acquired the core rail assets of the Chicago,
Milwaukee, St. Paul and Pacific Railroad Company
(Milwaukee) from its trustee in bankruptcy. Two statu-
tory regimes governed the Soo Line’s acquisition of Mil-
waukee (Acquisition): the Milwaukee Railroad Restruc-
turing Act, 45 U.S.C. §§ 901-922 (the Restructuring
Act), and the Interstate Commerce Act, 49 U.S.C.
§ 10101 et seg. (ICA).
A. The Restructuring Act.
The Restructuring Act was passed as an emergency
measure to restructure the financially ailing Milwaukee,
in order to avoid the potential unemployment and eco-
nomic damage that would result if the Milwaukee were
to cease operating. 45 U.S.C. § 901(b). The Restructur-
ing Act primarily sets out procedures through which
courts, the Secretary of Transportation, and the Inter-
state Commerce Commission (ICC) may supervise trans-
the board’s authority. United Steelworkers of America v.
Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S. Ct.
1347, 1352-55, 4 L. Ed. 2d 1409 (1960); Zeviar v. Local 2747,
[Airlines, Aerospace and Allied Employees, 733 F.2d 556, 559
(8th Cir. 1984)]; Lackawanna Leather v. United Food & Com-
mercial Workers, 706 F.2d 228, 230-31 (8th Cir. 1983) (en
banc).
Ozark Air Lines, Inc. v. Air Line Pilots Association, Int'l, 744
F.2d 1347, 1350 (8th Cir. 1984), aff'd en banc by an equally divided
court, 761 F.2d 1259, cert. denied, 474 U.S. 903 (1985).
2 The panel opinion previously filed, 833 F.2d 730 (&th Cir. 1987),
was withdrawn and vacated when the petition for rehearing en
banc was granted.
4a
actions pertaining to the Milwaukee, such as sales, trans-
fers, abandonments, and conversion plans. 45 U.S.C.
§§ 903-905, 915. The Restructuring Act also sets out a
variety of protective measures for Milwaukee employees,
45 U.S.C. $§ 907-914.
The Restructuring Act required the Soo Line, as a
condition of the Acquisition of Milwaukee, to provide
protections for potentially affected employees. Section
904(b)(1) of the Restructuring Act set out the level of
protection required, and authorized the federal district
court supervising the Acquisition (reorganization court)
to decide for itself what specific labor protective condi-
tions should be imposed. Section 904/b)(1) provides:
“In authorizing any such sale or transfer, the court shall
provide a fair arrangement at least as protective of the
interest of employees as that required under section
11347 of title 49 of the United States Code.” (Section
11347 of the ICA.)* This mandate brings us to the
second of two statutes governing the transaction, the
ICA.
B. The ICA Protective Agreement.
As this court recently stated in Burlington Northern
Railroad Co. v. United Transportation Union, Nos. 87-
2581, 87-2600, slip op. at 6-7 (April , 1988), the goal
of the ICA is to make commerce flow smoothly, to the
benefit of both American industry and consumers. The
ICA seeks to ensure fair shipping rates, safety and effi-
ciency in transportation, and to preserve the viability
of various modes of transportation. See 49 U.S.C.
§ 10101, 10101a.
% Section 11347 requires the carrier to provide a fair arrange-
ment at least as protective of the interests of employees as the
terms imposed under section 11347 prior to February 5, 1976
(the date the section was amended) as well as those established
under section 405 of the Rail Passenger Service Act, 45 U.S.C.
§ 565.
eee
5a
The ICA generally requires that before a railroad
acquires an additional line, the rail carriers involved in
the transaction must obtain the approval of the ICC. 49
U.S.C. § 10901. In furtherance of the ICA’s goal of
preventing labor strife by “encourag[ing] fair wages and
safe and suitable working conditions in the railroad
industry,” 49 U.S.C. §10101a(12), the ICC, before ap-
proving a particular transaction, has generally required
the imposition of plans to compensate workers displaced
by the transaction. See 49 U.S.C. § 11347. These plans
are called labor protective provisions or agreements.
Under the authority granted by the ICA, the ICC has
developed standard labor protective provisions for par-
ticular types of transactions. When the transaction in-
volves the sale of a rail line, such as here, the ICC im-
poses the New York Dock conditions upon the parties.
See New York Dock Railway—Control—Brooklyn E.D.
Terminal, 360 I.C.C. 60 (1979), aff'd, 609 F.2d 83 (2d
Cir. 1979).
The New York Dock conditions provide essentially that
any employee furloughed as a result of a merger or
similar transaction must be paid, generally for six years,
the equivalent of the wage earned at the time of the
adverse action, unless he or she chooses instead to take a
one-time payment of up to one year’s pay (valued at
approximately $38,000 per employee in this case); that
issues pertaining to seniority and contract rights between
the employees of the two merged railroads must be re-
solved by an implementing agreement with the consoli-
dated railroad’s unions; that existing collective bargain-
ing agreements must be preserved; and that mandatory
and binding arbitration be used to resolve “any dispute
or controversy with respect to the interpretation, appli-
cation or enforcement of any provision” of the New York
Dock conditions.*
4 Section 11 of the New York Dock conditions contains a manda-
tory arbitration clause which provides, in pertinent part:
[Continued]
a OoOor~O
6a
The Soo Line informed both the ICC and the reor-
ganization court that several hundred employees would
lose their jobs as a result of the Acquisition. See Matter
of Chicago, Milwaukee, St. Paul and Pacific Railroad
Co., 799 F.2d 317, 328-29 (7th Cir. 1986), cert. denied,
107 S. Ct. 2460 (1987). The ICC recommended that the
New York Dock conditions be imposed upon the Acquisi-
tion, and the reorganization court, except for making
minor changes,*° applied the New York Dock conditions.
4 [Continued]
11. Arbitration of disputes.—(a) In the event the railroad
and its employees or their authorized representatives cannot
settle any dispute or controversy with respect to the interpre-
tation, application or enforcement of any provision of this
appendix, * * * it may be referred by either party to an arbi-
tration committee.
This court has recently held that arbitration clauses identical to
those at issue here mandate compulsory arbitration of “any dispute”
between the parties relating to New York Dock protections. Hoff-
man v. Missor:ri Pacific Railroad, 806 F.2d 800, 801 (8th Cir. 1986).
Even though these arbitration clauses say disputes “may” be re-
ferred to arbitration, the clauses nevertheless make the arbitration
both mandatory and binding. Hoffman, 806 F.2d at 801.
5 As explained by the court in Matter of Chicago, 799 F.2d at
329:
The principal difference between the “Appendix B” conditions
[those conditions actually imposed in this case] and the New
York Dock conditions is that although New York Dock requires
the railroad to notify employees of impending changes 90 days
in advance, and to negotiate with the unions concerning their
consequences until agreement is reached, “Appendix B” short-
ens the time to ten days and allows the railroad to make the
changes whether or not the unions consent. “Appendix B”
also requires that any employee injured by this accelerated
schedule be made whole. See In re Chicago, Milwaukee, St.
Paul & Pacific R.R., 658 F.2d 1149, 1151-52 (7th Cir. 1981)
(Protective Conditions), cert. denied, 455 U.S. 1000, 102 S. Ct.
1632, 71 L. Ed. 2d 867 (1982), for a description of the dif-
ference.
For purposes of clarity in this opinion, the conditions imposed
will be referred to as the New York Dock conditions.
rnc
Ta
Accordingly, on September 10, 1985, the Soo Line en-
tered into an employee protective agreement ( Protective
Agreement) with Milwaukee and IAM. The Protective
Agreement, which incorporated the New York Dock con-
ditions in conformity with the reorganization court’s
order, was meant to provide standard labor protective
provisions pursuant to section 11347 of the ICA and the
Restructuring Act. As described in its preamble, the
purpose of the Protective Agreement was:
to provide * * * for fair and equitable arrangements
to protect the interests of Employees adversely af-
fected by the Acquisition; and to provide for expe-
dited changes in services, facilities, operations, se-
niority and existing collective bargaining agreements
to enable the expanded railroad system created by
the Acquisition to be operated in the most efficient
manner, as one completely integrated railroad.
C. The RLA Collective Bargaining Agreement.
Before the execution of the Protective Agreement, as
a result of negotiations entirely unrelated to the Acqui-
sition, the Soo Line and IAM entered into a collective
bargaining agreement (CBA) on March 1, 1985. The
CBA was negotiated in accordance with the provisions
of the RLA, which seeks among its aims to secure the
“complete independence’ of railroads and their employees
in matters of self-organization to carry out the purposes
of the RLA. See 45 U.S.C. § 15ia. The CBA set out
rules concerning working hours and conditions, layoffs,
promotions, seniority, grievances and employee discipline.
The CBA made no explicit mention of an employee’s right
of voluntary resignation.
D. The Voluntary Separation Pan,
Post-Acquisition, in December 1985, the Soo Line
decided to reduce the number of employees on its payroll.
It offered voluntary separation pay plans to certain em-
8a
ployees represented by unions other than IAM. Under
these plans, employees who voluntarily resigned would
receive $15,000 cash in a lump-sum severance payment
and, if they were age sixty or older, would have their
health benefits continued until they were sixty-five. To
take advantage of the plan, each employee was required
to: -
Release all rights under labor protective conditions,
including but not limited to, statutory, contract, or
agreement labor protection and those conditions com-
monly referred to as Appendix B. * * * [Rlesign
and relinquish all rights of or claims to employment
with the Soo Line Railroad * * * and release and
discharge said railroad company, * * * from any
and all claims of whatsoever kind and nature grow-
ing out of or in connection with said employment.
Soo Line Railroad Voluntary Separation Pay Plan at
p. 3.
Many employees accepted the separation plan and ter-
minated their services with the Soo Line. For example,
on December 11, 1985, the Soo Line offered a voluntary
separation pay plan to certain employees represented by
the United Transportation Union (UTU). There were
no negotiations with the UTU, and eightv-one UTU em-
ployees voluntarily participated in the plan. Likewise,
January 31, 1986, the Soo Line offered to employees
classified as “enginemen” represented by the UTU and
the Brotherhood of Locomotive Engineers (BLE) a simi-
lar voluntary separation plan. Again, there were no ne-
gotiations with either of these unions and fifty-six BLE
and UTU enginemen accepted the plan and terminated
their services with the Soo Line.
In addition, numerous other Soo Line employees from
ten different “‘oid-line’” labor unions (other than UTU
and BLE) voluntarily requested and were granted sep-
9a
aration pay plans. The Soo Line did not negotiate with
either the employees or their unions regarding the plans.
Neither the UTU, the BLE, nor any of the ten other
unions even sought to negotiate with the Soo Line as to
these voluntary plans, and at no time did these unions
protest that offering the plans constituted a major dis-
pute under the RLA. In all, nearly 400 union-represented
employees accepted voluntary separation plans.
IAM learned of the program and questioned the Seo
Line with respect to the applicability of the program to
machinists. The Soo Line said it was not making such
a plan available to the machinists. Thereafter, eight
machinists, all over sixty years of age and with top sen-
iority, contacted the Soo Line asking to participate in a
similar plan. Of the eight, those who met certain addi-
tional qualifications, see 45 U.S.C. § 23la(a), were also
eligible for retirement annuities under the Railroad Re-
tirement Act of 1974, 45 U.S.C. § 231 et seq. The eight
machinists’ requests were honored and, after signing the
necessary releases, their services with the Soo Line were
terminated. Each received a separation allowance of
$15,000 and became eligible to continue to receive cer-
tain health benefits until age sixty-five.
E. The District Court Injunction.
When IAM learned that the separation plan was being
offered to some of its members, it objected. In response
to this objection, the Soo Line agreed to meet with JAM
voluntarily and informally, in an effort to alleviate its
concerns." These discussions were unsuccessful. The Soo
5 TAM asserts that these discussions were tantamount to formal
negotiations, and by proceeding in formal negotiations, the Soo
Line acknowledged that this was a subject of mandatory bargaining.
In our view this misinterprets the record. In an affidavit, the Senior
Vice President for Labor Relations and Personnel for the Soo Line
stated that the discussions onlv occurred with the understanding
that they were without prejudice to the Soo Line’s rights to uni-
10a
Line thereafter announced its intention to solicit other
machinists’ resignations pursuant to a voluntary separa-
tion plan (the Individual Plan), containing essentially
the same terms as the agreements signed by other Soo
Line employees. IAM then filed this action seeking to
restrain the Soo Line from entering into the Individual
Plan with individual machinists. IAM argued that the
Individual Plan contravened the New York Dock condi-
tions because its effect was to relieve the Soo Line of its
obligations under those conditions. IAM contended that
the eight senior machinists who voluntarily resigned
would reduce by eight the number of employees who
would have been furloughed as a result of the merger
and thus would have been entitled to benefits under the
New York Dock conditions. IAM claimed in effect that
the early retirement program was an attempt to sub-
stitute a uniform lump-sum payment of $15,060 for pay-
ment_for six years of service (or alternatively, $38,000)
under the Protective Agreement.
The matter was submitted to the district court on af-
fidavits, exhibits, and abbreviated oral testimony. The
parties stipulated that the hearing on the preliminary
injunction could be considered the hearing for a perma-
nent injunction. The district court first looked to section
6 of the RLA and reasoned that it:
establishes a comprehensive series of bargaining pro-
cedures, complete with detailed timetables and pro-
visions for notice, to be followed by employers and
bargaining representatives in effecting changes in
rates of pay, rules, and working conditions. 45
U.S.C. 156. When employers wish to make changes
in any regulated areas, the statute mandates written
notice of the desired modification, after which con-
laterally accept separation requests from machinists. Moreover;
we know of no rule that requires the transformation of an issue
into a major dispute under the RLA merely because discussions
take place that could be characterized as “negotiations.”
—_ | |
lla
ferences between management and labor take place,
with the optional assistance of the National Media-
tion Board.
District Court Order at 3-4.
The district court then reviewed the cases which have
defined the concededly hazy continuum between major
and minor disputes and found that the dispute between
the parties was major. It stated:
[T]he Court is not called upon to review the status
of either labor or management at the interstices of
an agreement. Instead, the case presents funda-
mental issues of whether or not a person may even
be an employee or a member of a union. We are not
defining an inter-employment relationship, but the
fundamental nature of the employment relationship
itself.
Both parties agree that there is no provision in
the existing agreements between the Union and Soo
Line allowing solicitation of individual union mem-
bers or for individual lump-sum separation agree-
ments. Under the Elgin definition and the decisions
of the other courts which have faced the jurisdic-
tional issue in the present context, this dispute is
major, and this Court therefore has jurisdiction over
it.
Id. at 6.
The court went on to hold that individual agreements
such as the Individual Plan proposed by the Soo Line
were impermissible, and enjoined the Soo Line from en-
tering into the Individual Plan with employees repre-
sented by the Union until such time as the Soo Line
complied with the notice, bargaining and mediation pro-
cedures of section 6 of the RLA, which have been called
“almost interminable.” See Brotherhood of Maintenance
12a ai)
of Way Employees v. Chicago and North Western Trans-
portation Co., 827 F.2d 330, 333 (8th Cir. 1987).
II. DISCUSSION
In reviewing the district court’s grant of a permanent
injunction in this case, we note that appeliate review
of either a grant or denial cf injunctive relief is con-
fined to the familiar determination of whether the trial
court abused its discretion. See Olin Water Services v.
Midland Research Laboratories, Inc., 774 F.2d 303, 307
(8th Cir. 1985). Abuse of discretion occurs if the dis-
trict court rests its conclusion on clearly erroneous fac-
tual findings or it its decision relies on erroneous legal
conclusions. Brotherhood of Locomotive Engineers v.
Burlington Northern Railroad Co., 838 F.2d 1102, 1104
(9th Cir. 1988). Whether a matter is a dispute under
the RLA, and if so, whether it is a major dispute or a
minor dispute, are both questions of law which we re-
view de novo. See Brotherhood of Locomotive Engineers
v. Burlington Northern Railroad Co., 838 F.2d 1087, 1089
(9th Cir. 1988).
We are also well aware that our inquiry as to the
probity of an injunction is limited to those issues directly
related to the injunction, for “|a]n injunction does not
settle a dispute—it simply disables one of the parties,”’
Burlington Northern Railroad Co. v. Brotherhood of
Maintenance of Way Employes, 107 S. Ct. 1841, 1854
(1987). With these parameters in mind, we proceed to
examine the three issues in this case.
A. Existence of a Dispute.
We first examine the district court’s conclusion that
the disagreement at issue in this case is a dispute under
the RLA. Section 2 of the RLA, 45 U.S.C. § 151a, pro-
vides that one of the purposes of the RLA is “to provide
for the prompt and orderly settlement of all disputes
concerning rates of pay, rules, or working conditions.”
13a
The Soo Line argues that no “dispute,” as that term
is contemplated by the RLA, exists here; rather, the Soo
Line characterizes the situation as ene involving a matter
of voluntary choice, personal to each employee. The Soo
Line maintains that this case does not concern “rates
of pay, rules, or working conditions,” nor is an em-
ployee’s right to resign derived from, dependent upon,
or governed by a collective bargaining agreement. Sim-
ply put, the Soo Line argues that the RLA does not
govern an employee’s right to voluntarily separate from
employment under terms advantageous to him. The dis-
trict court concluded, however, that the Soo Line’s offer
of the Individual Plan to employees violated the RLA.’
We disagree. Our examination reveals that the statutory
language and case law allow the Soo Line to offer em-
ployees the Individual Plan in full compliance with the
RLA.
As a starting point, the RLA itself appears to recog-
nize an employee’s right to terminate his employment
relationship on terms he finds acceptable:
Nothing in this chapter shall be construed to re-
quire an individual employee to render labor or serv-
ice without his consent, nor shall anything in this
chapter be construed to make the quitting of his
labor or service by an individual employee an illegal
act; nor shall any court issue any process to compel
the performance by an individual employee of such
labor or service, without his consent.
45 U.S.C. § 159 Eighth.
7 The district court’s analysis of this issue is as follows:
If these company/individual agreements were to be allowed,
the union would be denied the right of access to formal nego-
tiation concerning compensation for severance; a right secured
to it by Section 6. Further. these events occur in a setting in
which an existing furlough plan is in place. Under these con-
ditions, the Court finds that Soo Line’s conduct violates the
RLA and its underlying policies.
District Court Order at 8.
l4a
The Supreme Court has also spoken on this issue. The
Court has stated, simply, that certain individual employ-
ment contracts may exist side-by-side with a collective
bargaining agreement. See J.J. Case Co. v. National
Labor Relations Board, 321 U.S. 332, 339 (1944); Order
of Railroad Telegraphers v. Railway Express Agency,
Inc., 321 U.S. 342, 347 (1944); Caterpillar Inc. v. Wil-
liams, 107 S. Ct. 2425, 2431-32 (1987). The principals
set out in J.J. Case and its progeny are equally applicable
to employees covered by the RLA and the National Labor
Relations Act. Order of Railroad Telegraphers, 321 U.S.
at 347.
At least one circuit court, the National Mediation
Board, and the National Railroad Adjustment Board have
condoned voluntary quits. See Antonioli v. Lehigh Coal
and Naviation Co., 451 F.2d 1171, 1175 (3d Cir. 1971),
cert. denied, 406 U.S. 906 (1972): Brotherhood of Rail-
way Carmen of the United States and Canada v. Illinois
Gulf Central Railrcad, National Mediation Board Case
No. 6, Public Law Board No. 2603 (1980); System Fed-
eration No. 69, Railway Employes’ Dep’t v. Florida East
Coast Railway Co., National Adjustment Board Award
No. 4733 (2d Div. 1965), slip op. at 30; System Federa-
tion No. 2, Railway Employes’ Dep’t v. Missouri Pacific
Railroad Co., National Railroad Adjustment Board
Award No. 1579 (2d Div. 1952), slip op. at 4.
In sum, there is strong support for the Soo Line’s
position that no dispute under the RLA exists here. We
are mindful, however, of the substantial case law, see
infra, that has found the existence of a dispute under
similar circumstances. We are also aware of the strong
presumption of arbitrability in these types of cases, see
supra Ozark Air Lines, 744 F.2d at 1850. Thus, we as-
sume without deciding that the district court was correct
in its conclusion that this case implicates a “dispute”
under the RLA.
15a
B. Major-Minor Dispute.
Proceeding on the assumption that this case does in-
deed present a dispute, we think the conclusion is ines-
capable that the dispute is minor.
The Supreme Court set out the difference between ma-
jor and minor disputes under the RLA in Elgin, Joliet
& Eastern Railway Co. v. Burley, 325 U.S. 711 (1945):
{I]t is clear from the [Railway Labor] Act itself,
from the history of railway labor disputes and from
the legislative history of the various statutes which
have dealt with them, that Congress has drawn ma-
jor lines of difference between the two classes of
controversy.
The first [“‘major” disputes] relates to disputes
over the formation of collective agreements or efforts
to secure them. They arise where there is no such
agreement or where it is sought to change the terms
of one, and therefore the issue is not whether an
existing 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.
The second |‘“minor” dispute] class, however, con-
templates the existence of a collective agreement al-
ready concluded or, at any rate, a situation in which
no effort is made to bring about a formal change in
terms or to create a new one. The dispute relates
either to the meaning or proper application of a par-
ticular provision with reference to a specific situa-
tion or to an omitted case.
Elgin, 325 U.S. at 722-23. (Footnotes omitted; emphasis
added.) The Supreme Court went on to explain that ma-
jor disputes involve “large issues about which strikes
ordinarily arise’ while minor disputes affect smaller
differences which “arise incidentally in the course of an
ieee
16a
employment” and are “of a detailed or individual qual-
ity.” Id. at 723-24.
Section 3 of the RLA commits minor disputes over
the “interpretation or application” of existing agreements
and practices to the exclusive jurisdiction of Adjustment
Boards, i.e., to “compulsory arbitration.” 45 U.S.C. § 153
First (i); Brotherhood of Railroad Trainmen v. Chicago
River & Indiana Railroad Co., 353 U.S. 80, 39 (1957) ;
see Elgin, 325 U.S. at 724. While the controversy is
pending before the Board, the carrier may apply its rea-
sonable interpretation of the disputed agreement, with
“mited exceptions not here relevant. Brotherhood of
Maintenance of Way Employees v. Burlington Northern
Railroad Co., 802 F.2d 1016, 1022 (8th Cir. 1986).
In deciding whether a dispute is major or minor, it is
not our function to interpret or construe the language
of the collectively bargained-for agreements between the
parties (the CBA and Protective Agreement); rather,
our function is to determine whether this case implicates
a question of contract interpretation. International As-
sociation of Machinists v. Northwest Airlines, Inc., No.
87-5235, slip op. at 6 (April 5, 1988). If the parties
disagree whether the dispute can be resolved by refer-
ence to an agreement, the dispute is minor unless the
claims of contractual justification are “frivolous” or “‘ob-
viously insubstantial.” Maine Central Railroad Co. v.
United Transportation Union, 787 F.2d 780, 783 (1st
Cir.), cert. denied, 107 8. Ct. 169 (1986); Chicago and
Northwestern Transportation Co. v. United Transporta-
tion Union, 656 F.2d 274, 278-79 (7th Cir. 1981). This
circuit has framed the test as follows:
This Court has said that a dispute is minor if the
ag cement is “reasonably susceptible” of the inter-
pretations sought by both the employer and the em-
ployees. Other courts have said that a dispute is
minor if the employer’s action can be arguably jus-
17a
tified under the terms of the existing agreement, or
that the dispute is minor unless the employer’s ar-
gument that its actions are within the contract is
“obviously insubstantial.” These locutions are essen-
tially the same in their result. They illustrate the
relatively light burden which the [Soo Line] must
bear in showing that its actions are at most minor
changes and thus within the status quo.
Brotherhood of Maintenance of Way Employees v. Bur-
lington Northern Railroad Co., 802 F.2d 1016, 1022 (8th
Cir. 1986) (citations omitted); see also United Trans-
portation Union v. Burlington Northern, Inc., 458 F.2d
354, 357 (8th Cir. 1972). This rule is a necessary
adjunct of the need to protect the arbitrator’s exclusive
jurisdiction over minor disputes and supports the addi-
tional corollary that ‘when in doubt, the courts constitute
disputes as minor.” Brotherhood of Locomotive Engji-
neers v. Atchison, Topeka and Santa Fe Railway Co., 768
F.2d 914, 920 (7th Cir. 1985).* Thus, in this case, if
the bargained-for agreements arguably permit the prac-
tice, then the Soo Line may proceed unilaterally, subject
to arbitration before the National Railroad Adjustment
Board. Brotherhood of Maintenance of Way, 802 F.2d
at 1021-22.
IAM contends that the disagreement over the Individ-
ual Plan is a major dispute. While both parties agree
that the CBA does not authorize or prohibit this type of
“voluntary quit” plan, IAM argues that the terms of the
8 We note by analogy that “[a]s a general rule, federal courts
do not have jurisdiction over activity [that] is ‘arguably subject
to §7 or §8 of the [NLRA],’ and they ‘must defer to the exclusive
competence of the National Labor Relations Board.’” Kaiser Steel
Corp. v. Mullins, 455 U.S. 72, 83 (1982) (quoting San Diego Build-
ing Trades Council v. Garmon, 359 U.S. 236, 245 (1959)). Section
7 of the NLRA, 29 U.S.C. § 157, generally provides that employees
have the right to join, or refrain from joining, unions. Section 8
of the NLRA, 29 U.S.C. § 158, generally defines unfair labor prac-
tices by both employers and unions.
|
18a
Individual Plan are in direct conflict with the Protective
Agreement. The Soo Line, on the other hand, contends
that the Protective Agreement and the Individual Plan
may coexist because the Individual Plan is entirely volun-
tary, results only in an employee’s resignation, and does
not unilaterally change the rules, working conditions or
rates of pay for employees that choose to remain em-
ployed with the Soo Line.* According to the Soo Line,
an employee has the right to terminate his employment
at will on any terms he or she can obtain from the em-
ployer. The Soo Line also argues that the Individual Plan
furthers this right and does not violate or undermine
the CBA; therefore, it is a retained “management pre-
rogative,” and thus does not constitute direct dealing
with employees in violation of the RLA.*°
® Both dissents assert that implementation of the Individual Plan
will result in employee and work transfers, will affect seniority and
bidding rights of other [AM members, and will probably deprive some
employees of the opportunity to be separated under the terms of the
Protective Agreement. We can find no support in the record for those
predictions. In fact, in an affidavit, the General Chairman of IAM
stated that any current or future furloughs, transfers, and work
reductions resulted from the Acquisition, not the Individual Plan.
Accordingly, under the broad definitions of “aifected” or “displaced”
employees in the Protective Agreement and New York Dock condi-
tions, any employees furloughed or transferred would become eli-
gible for benefits under the Protective Agreement and would in
no way be harmed by the Individual Plan. As to seniority rights,
any effect that the Individual Plan has will be positive, not nega-
tive, for if employees opt for the Individual Plan. the seniority
of remaining Union members will be increased. Moreover, the
presence of the Individual Plan will not deprive any employees of
the opportunity to be separated under the terms of the Protective
Agreement, for the simple reason that an employee who opts for
the Individual Plan is not being deprived, but is making a free
choice. An employee who decides against the Individual Plan re-
mains as eligible as ever for the benefits of the Protective Agree-
ment.
10 Judge Heaney argues in dissent that by negotiating the Indi-
vidual Plan, the Soo Line reduced its obligations under the Pro-
EL
19a
As we have noted, the touchstone of a major-minor dis-
pute is whether a party’s position is frivolous or clearly
insubstantial. A number of tribunals have held that the
very argument that the Soo Line sets forth here presents
a minor dispute.
In Chambers v. Burlington Northern, Inc., 692 F.2d
109 (10th Cir. 1982), the court examined a dispute aris-
ing out of an employee transfer. The defendant, Burling-
ton Northern (BN), formed in a merger of several rail-
tective Agreement, while benefitting select IAM members to the
detriment of those members who would have otherwise qualified for
benefits under the Protective Agreement. The dissent apparently
finds fault with the Soo Line for trying to avoid the prospect of
paying people to sit at home. In our view this argument downplays
a key consideration, namely that the Individual Plan is completely
voluntary. An employee who decides not to seek the Individual
Plan remains as eligible as ever for benefits under the Protective
Agreement, if affected by the Acquisition. Had the eight employees
at issue been eligible for the greater benefits offered by the Pro-
tective Agreement, they would have opted for the Protective
Agreement, entailing as it did benefits more than double those of
the Individual Plan. These near-retirement employees had such
vested seniority rights that it is dubious whether they would have
been “affected” by the Acquisition. Thus the existence of the
Individual Plan did not detract from rights that they otherwise had
under the Protective Agreement, but rather, gave them rights
which they otherwise could not have claimed under the Protective
Agreement.
When one looks at the practicalities of the railroad seniority
system, an ancillary reason for the Union’s complaint becomes
apparent. As a result of the Acquisition, the Protective Agree-
ment required that those machinists with less seniority were
furloughed first and were being paid a day’s wages for not work-
ing: however, when the senior eight machinists quit and took the
$15,000, the seniority of the junior machinists was increased by
eight and some or all of them may have gone off furlough and
back in service. The Union’s efforts, which would result in the
Soo Line’s paying junior machinists to remain on furlough, hardly
comports with the preamble in the Protective Agreement signed by
the Soo Line and the Union to “provide for expedited changes” to
aliow operation of the Soo Line “in the most efficient manner.”
20a
ways in 1970, was required by the ICC to enter into a
protective agreement, and accordingly executed a “Merger
Protection Agreement” (MPA). The MPA and the
merger were approved by the ICC.
Plaintiff Chambers was an engineer-fireman who was
transferred. He executed a written agreement with BN
in which he voluntarily relinquished his seniority in ex-
change for a lump-sum payment. Chambers, 692 F.2d
at 110. When Chambers entered the agreement with BN
he was subject to two collective bargaining agreements
(CBAs), neither of which had provisions applicable to
seniority or allowances on transfer.
Ten months after Chambers had signed his lump-sum
agreement with BN, however, BN and the unions made
new CBAs which gave a transferred employee both more
money on transfer and provided that the transferred em-
ployee would retain his prior seniority. Chambers sued,
arguing that BN had violated the MPA because his
agreement with BN provided him less protection than
was contained in the later CBA.
The court stated:
[T}he question of forestalling and changing of ob-
ligations requires consideration, interpretation, and
application of the MPA, the Union agreement in
effect when the individual agreement was made, and
the bargaining agreement made ten months after the
individual agreement.
Chambers, 692 F.2d at 111. The court went on to hold
that the dispute was minor and must be submitted to the
exclusive jurisdiction of the National Railroad Adjust-
ment Board, because “[i]n the final analysis, the dispute
here relates to the interpretation and application of the
MPA and the bargaining agreements.” Jd. at 112.
In Clausen v. Burlington Northern, Inc., 106 LRRM
2496 (D. Mont. 1980), the district court faced an issue
inact ienen iain
2la
similar to that in this case. Clausen was empioyed by
BN as a fireman-engineer. The ICC required the im-
plementation of a merger protective agreement (MPA),
when BN was formed. The MPA provided protection for
employees transferred by BN, but contained no pro-
vision for seniority adjustments on transfer.
Clausen and BN agreed that Clausen would accept a
transfer. The agreement provided that Clausen would
relinquish his prior seniority and reestablish it in the
new location. Thereafter, BN and the Brotherhood of
Locomotive Engineers negotiated a new collective bar-
gaining agreement, which contained provisions covering
benefits for transferred employees. The benefits in the
new agreement exceeded those Clausen had received.
Clausen filed suit, alleging that the individual agree-
ment he negotiated with BN violated the RLA and the
MPA, which incorporated the new collective bargaining
agreement. The court held that the dispute was minor,
stating at 106 LRRM 2499-2500:
The fundamental confiict here is whether relevant
sections of a Merger Protection Agreement apply to
and permit the execution of individual contracts re-
garding seniority transfers. The plaintiff is attempt-
ing to avail himself of certain compensation pro-
visions of the May 23, 1975, agreement between
B.N. and UTU-E. Plaintiff also seeks restoration of
his original seniority status and the difference be-
tween lump sum payments under his individual con-
tract and the subsequent B.N.-UTU-E agreement.
The plaintiff contends that §6 of the MPA is vio-
lated by the individual contract negotiated with the
defendant. * * * Therefore, plaintiff maintains that
a collective agreement encompasses the issue in dis-
pute and defendant contends that such agreement
does not contemplate the specific controversy involved
herein. Thus, the validity of the individual agree-
ment negotiated by the parties necessarily requires
22a
interpretation and application of relevant provisions
within the Merger Protection Agreement in effect at
the time of the letter agreement negotiation. Inter-
pretation and application of collective bargaining-
agreements within this context have consistently been
deferred to the specialized expertise of the National
Railway [sic] Adjustment Board.
In International Association of Machinists and Aero-
space Workers v. Illinois Central Gulf Railroad Co., 102
Lab. Cas. § 11,345 (S.D. Ill. 1984), the district court ex-
amined a factual dispute similar to the one presented
here. Illinois Central made individual agreements with
furloughed employees for lump-sum payments in ex-
change for the individual employee’s resignation, alleg-
edly in violation of both a collective bargaining agree-
ment and merger protective agreement. Illinois Central
argued that the merger protective agreement, combined
with past practices in which the unions acquiesced, gave
Illinois Central the right to make the individual agree-
ments. The union argued that no such past practices
existed, and that any individual severance agreements
were in derogation of the collective bargaining agreement.
After examining the record, the court held that Illinois
Central’s argument that there was a past practice of
making individual severance agreements was not frivo-
lous, nor was the union’s argument ‘hat there was no
such past practice.’ In view of the fact that “a dispute
11 Jn this case, neither side makes any argument regarding past
practice, or a lack thereof, with regard to the offering of lump-
sum separation plans. Accordingly, past practices play no part in
our decision. We note, however, that when employees of the Soo
Line are injured they have the right to make claim and commence
suit under the provisions of the Federal Employer’s Liability Act
(FELA). Soo Line has been negotiating settlement agreements
with injured employees for over fifty years pursuant to the FELA,
whereby an injured employee negotiates directly with the railroad
to terminate his employment for consideration. These settlements
have always been between the Soo Line’s Claim Department or the
23a
over the interpretation of rights under implied agree-
ments based on past practices is a minor dispute, as long
as both parties advance on interpretation that is not
frivolous,” Railway Express Agency v. Brotherhood of
Railway, Airline and Steamship Clerks, 437 F.2d 388
(5th Cir.), cert. denied, 403 U.S. 919 (1971), the court
held the dispute to be minor and subject to mandatory
arbitration. More importantly for our purposes, the
court went on to state:
Even if there were no past practice of making
individual agreements, this matter should still be one
subject to arbitration under the Merger Agreement
which imposes protective conditions upon [Illinois
Central]. The Merger Agreement has an arbitration
clause and therefore any interpretation of the agree-
ment is within the jurisdiction of the adjustment
board. See Illinois Central Railroad v. Wood, Civil
No. 69-107 (E.D. Ill. 1970). The severance agree-
ments were made with protected employees, arguably
in compliance with the Merger Agreement.
Thus the court, completely apart from the past practices
argument, based its decision on the fact that the merger
agreement had to be interpreted to resolve the dispute,
because Illinois Central’s actions arguably were in com-
pliance with the Merger Agreement.
The major-minor dispute issue was most recently
addressed in Transportation-Communication Employees
Union v. Grand Trunk Western Railroad Co., No. 87-
74196 (E.D. Mich. Feb. 23. 1988). The union contended
that management had violated the RLA and various
bargained-for agreements, by engaging in direct negotia-
tion with individual employees on the issue of separation
agreements without consulting the union. The union
sought an injunction prohibiting management from offer-
Soo Line’s Law Department and the employee (with or without an
attorney), without any involvement by the labor organizations.
24a
ing the individual separation plans. The court declined
to assume jurisdiction, finding the dispute to be minor
because “the individual separation agreements arguably
are consistent aith, and authorized by, the express terms
of the * * * Protective Agreement.” Slip op. at 9. The
court also found not frivolous management’s assertion
that the union had agreed, through past practice, to the
offering of the individual plans. Here as well the Indi-
vidual Planarguably is “consistent with, and authorized
by,” the Protective Agreement.
These cases stand for the proposition that the Soo
Line’s assertion (i.e, that the Individual Plan does not
violate the CBA and Protective Agreement) is not frivo-
lous. This is so for the simple reason that the over-
whelming majority of courts to consider the identical or
highly similar argument have reached one of two con-
clusions: either that the Soo Line’s position is correct,
or that the Soo Line’s position is arguably correct and
must be committed to binding arbitration. It is difficult
to conceive how a legal position such as the Soo Line’s,
which has received such widespread judicial acceptance,
could be deemed “frivolous” or “obviously insubstantial.”
Accordingly, the Soo Line has met its “relatively light
burden.” Brotherhood of Maintenance of Way, 802 F.2d
at 1022. We find this dispute to be minor and leave it
to mandatory arbitration.
We are aware that two courts have concluded that
individual lump-sum separation agreements may not co
exist with pre-established collective agreements. Brother-
hood of Railway, Airline and Steamship Clerks v. Chesa-
peake and Ohio Railway Co., 115 LRRM 3635 (N.D.
Ohio 1983); Southern Pacific Transportation Co. v.
Brotherhood of Railway, Airline and Steamship Clerks,
636 F. Supp. 57 (D. Utah 1986). In concluding that the
disputes were major, these courts found by necessity tat
management’s arguments as to the propriety of its ac-
25a
tions were frivolous or obviously insubstantial. As we
have tried to show, there is substantial case law which
has sustained, or at least found non-frivolous, arguments
similar to those made by management in these two cases.
Accordingly, to the extent these cases apply to the situa-
tion before us, we decline to follow them.
Moreover, we believe these two cases are distinguish-
able. The Chesapeake and Ohio clerks had “bolted” posi-
tions after three years of service, which meant lifetime
job protection. The pertinent collective bargaining agree-
ment in the Southern Pacific case was a BRAC agree-
ment similar, in its high level of protection, to the agree-
ments in Chesapeake and Ohio. By contrast, in this case
the IAM machinists were never “bolted.” In sum, the
two cases are inapposite for the reason that their existing
agreements provided a much higher level of protection
for employees, thus in effect “closing the door” to a vol-
untary lump-sum separation plan, while the CBA and
Protective Agreement in this case, by virtue of their
silenee on the subject, can coexist with a voluntary lump-
sum separation plan.
C. Contractual Requirement of Arbitration.
There is another, equally persuasive reason why this
case must go to arbitration rather than allowing the
district court to vest status quo benefits in one of the
parties while “disabling” the other party. The Protective
Agreement provides in two places that ‘any dispute”
over the “interpretation” or “application” of the New
York Dock conditions (which are included as part of the
Protective Agreement) must be resolved by binding ar-
bitration before an expert railroad arbitration commit-
tee.'* Thus, the Protective Agreement, read as a whole,
12 Article 1, §11 of the New York Dock conditions provides:
“In the event the railroad and its employees or their authorized
representatives cannot settle any dispute or controversy with re-
spect to the interpretation, application or enforcement of any pro-
26a
is unambiguous in requiring that any disputes arising
with regard to its interpretation or application must be
submitted to binding arbitration.
In Local No. 381, International Union of Operating
Engineers v. Tosco Corp., 823 F.2d 265, 268 (8th Cir.
1987), this circuit, quoting from the recently decided
AT&T Technologies, Inc. v. Communications Workers of
America, 475 U.S. 643, 650 (1986), held:
[W]here the contract contains an arbitration
clause, there is a presumption of arbitrability in the
sense that “[a]n order to arbitrate * * * should not
be denied unless it may be said with positive assur-
ance that the arbitration clause is not susceptible of
an interpretation that covers the asserted dispute.
Doubts should be resolved in favor of coverage.”
(Emphasis added.) Tosco, again quoting from AT&T
Technologies, went on to say that “[I]n deciding whether
the parties have agreed to submit a particular grievance
to arbitration, a court is not to rule on the potential
merits of the underlying claims * * * even if it appears
to the court to be frivolous * * *.” Id. at n.6. (Emphasis
added.) In fact, the Supreme Court said in AT&T Tech-
nologies, 475 U.S. at 650, that where, as here, the ar-
bitration clause refers broadly to any dispute over inter-
pretation, “only the most forceful evidence of a purpose
to exclude the claim from arbitration can prevail.” More-
over, as previously noted, this court has held that such
vision [herein] * * *, it may be referred by either party to an
arbitration committee.” (Emphasis added.)
Section 8 of the Protective Agreement provides that ‘“‘any dis-
pute or controversy with respect to the interpretation [or] appli-
cation * * * of this Agreement * * * may be referred by any party
to an arbitration board [under] Article I, Section 11 of the New
York Dock Conditions.”
As noted previously, see supra n.4, such language has been held
by this circuit to impose mandatory arbitration.
27a
language as is present in the Protective Agreement man-
dates compulsory arbitration.
The present dispute clearly falls within the applicable
arbitration clauses as a dispute over the “interpretation”’
of the Protective Agreement. The following three aspects
of the Protective Agreement require interpretation to re-
solve this dispute: (1) the preamble of the Protective
Agreement provides that it only applies to employees
“adversely affected by the Acquisition;” thus the term
“affected” must be interpreted to determine if the eight
machinists at issue here were so affected; (2) the pre-
amble of the Protective Agreement seeks as a goal the
operation of the expanded railroad “in the most efficient
manner,” and this language must be interpreted to deter-
mine whether it comports with requiring the Soo Line
to pay men to remain idle on furlough; and (3) the
Protective Agreement as a whole must be examined to
determine whether the absence of any language explicitly
allowing or forbidding voluntary quits is more properly
interpreted to allow or forbid such quits.
Stated more broadly, IAM’s main argument is that
the Protective Agreement bars the Individual Plan; ac-
cordingly, to properly address IAM’s argument one must
interpret the scope and meaning of the Protective Agree-
ment, and the Protective Agreement states, not once but
twice, that anv dispute over its scope and meaning must
go to binding arbitration. At a minimum, it certainly
eannot be said “with positive assurance,” as Tosco re-
quires, that this is not a dispute over the interpretation
of the Protective Agreement. The New York Dock con-
ditions themselves contemplate the “retirement” or “resig-
nation” of even those employees who are otherwise eli-
gible for protective payments. Article I, §6(d} New
York Dock conditions.
In sum, Tosco and AT&T Technologies require a court
to ask whether there is “positive assurance that the ar-
bitration clause[s]’”—which expressly cover disputes over
28a
“interpretation”—are “not susceptible of an interpreta-
tion that covers the asserted dispute.” As we have noted
at some length, adjustment boards have held that volun-
tary individual separation agreements do not violate labor
agreements or the RLA. Federal courts have reached the
same conclusion or have concluded that similar issues
must be arbitrated. Yet, IAM argues here that the In-
dividual Plan violates both the Protective Agreement and
the RLA. Resolution of this issue can only be had by
examining and interpreting the Protective Agreement.
Directly contrary to IAM’s assertion, we think that the
only response which can be set forth with “positive as-
surance” is that the arbitration tlauses in this case are
susceptible of an interpretation that covers the asserted
dispute. Accordingly, the arbitration clauses must be
given effect and allowed to operate over this dispute."
In the final analysis, whether one relies upon the
standard set out for distinguishing a major dispute from
a minor dispute, or whether one relies upon the standard
for determining whether arbitration clauses cover a dis-
pute, the inquiry is essentially the same. That inquiry,
in this case, is whether the Soo Line has set forth a posi-
tion which is entitled to some credence. We conclude, in
view of the cases which explicitly support the Soo Line’s
position, as well as the pertinent language of the agree-
ments, which arguably support the Soo Line’s position,
that the Soo Line has more than met its burden under
either inquiry.
Ill. CONCLUSION.
Although there is authority for the proposition that
this case involves not a dispute, but rather, a choice
personal to each employee, we rest our decision on the
13 Even apart from the arbitration clauses at issue, the RLA itself
requires arbitration of the instant dispute. Section 3 of the RLA
requires arbitration by expert adjustment boards of any dispute
over the “interpretation or application” of railway labor agree-
ments. 45 U.S.C. § 153 First.
29a
grounds that this is a dispute which is suitable for ar-
bitration, both because it is a minor dispute and because
the parties agreed to arbitration; therefore, we hold that
the district court lacked jurisdiction to issue the injunc-
tion in this case. Accordingly, the judgment of the dis-
trict court is reversed, the injunction is dissolved, and
the case is remanded for arbitration.
LAY, Chief Judge, with whom McMILLIAN, Circuit
Judge, joins, dissenting.
I respectfully dissent.
The majority states the issue to be whether the exist-
ing collective bargaining and labor protective agreements
cover the right of the railroad to enter into individual
contracts with the employees. Slip op. at 12-13. How-
ever, it is undisputed that neither agreement covers this
situation. The majority then posits the issue to be
whether or not the labor protective agreement may be
interpreted to conflict with the separate contracts entered
into by individual employees. If this were_the dispute
involved, there would be no need to find that such a dis-
pute is subject to arbitration under the labor protective
agreement. If this indeed were the issue, then the dis-
cussion as to a minor dispute would be unnecessary be-
cause the issue would be conceded. But this is not the
issue.
The fundamental question is whether the railroad has
a unilateral right to enter into voluntary separation
agreements with individual employees that significantly
affect the rights of other employees.’ Resolution of this
1 As Judge Heaney stated in the original panel opinion:
The impact on the union and its members of the voluntary
separation plan will be significant. As a result of the individual
agreements, work has been or will be transferred from one
facility to another, seniority and bidding rights of some em-
ployees will inevitably be affected, and some employees will, in
all probability, be deprived of the opportunity to be separated
30a
issue does not require interpretation of either agreement.
If the unilateral action of the carrier is not covered by —
the agreements, as the majority concedes in its opinion,
then it is a misperception to argue that the issue involves
interpretation of the agreements. The conduct here is an
attempt by the railroad to negotiate with individual em-
ployees concerning ‘an intended change in agreements
affecting rates of pay. rules, or working conditions * * *.
45 U.S.C. § 156. The obvious discussion of the definition
of minor and major disputes cannot mask the fact that
we are dealing with a matter that clearly is subject to
mandatory bargaining under section 6 of the RLA.
The majority declines to follow the only two decisions
which directly deal with the issue involved.? Southern
Pac. Transp. Co. v. Brotherhood of Ry., Airline and
Steamship Clerks (So. Pac.), 636 F. Supp. 57 (D. Utah
(1986); Brotherhood of Ry., Airline and Steamship
under the terms of the labor protective agreement. Although
the jobs of the remaining employees may be more secure after
voluntary separation of some machinists, they would have also
become more secure if employees were separated pursuant to
the labor protective agreement.
International Ass'n of Machinists and Aerospace Workers, Dist.
Lodae No. 19 v. Soo Line R.R., 833 F.2d 730, 734-35 (8th Cir.
1987).
* The union distinguishes the cases cited by the carrier and relied
on by Judge Magill. In response to the petition for rehearing en
banc the union states:
The common issue in all these opinions is a challenge to the
validity of an individual agreement by an individual emplovee
who alleged that he or she was entitled to the benefits of a
merger protective agreement. ‘The courts held that a dispute
about whether the agreement applied to these particular em-
ployees presented a minor dispute, subject to mandatory arbi-
tration. None of these decisions purport to resolve the issue of
the employer’s duty to bargain about the terms of individual
separation agreements.
Response to Petition for Rehearing at 8.
EEE
3la
Clerks v. Chesapeake and Ohio Ry., 115 LRRM 3635
(N.D. Ohio 1983). In attempting to distinguish the
decisions, the majority relies upon factual distinctions
between the collective bargaining agreements and protec-
tive agreements in the instant case and those in the other
two cases. Relying upon such differences merely ob-
scures the actual issues involved. These two district court
cases have not only rejected the majority’s argument but
have done so, as the majority has acknowledged, by ex-
plicitly stating that the argument is “frivolous or ob-
viously insubstantial.” Slip op. at 24.
In So Pac. a distinguished judge of the district of Utah
stated:
[Southern Pacific’s (SP)] actions in negotiating in-
dividual separation agreements with its BRAC-
represented employees circumvent the existing col-
lective bargaining relations and practices between
BRAC and SP, result in a diminution of SP’s obli-
gations in the collective bargaining scheme, disturb
the status quo between the parties, and undermine
BRAC’s role as the duly certified representative.
Further, SP’s actions may cause confusion among
SP’s employees and disruption in the work force;
introduce competition and discrimination that are
upsetting to the structure of labor organization; and
provide a leverage for taking away advantages
under existing collective agreements. Without
BRAC’s involvement and approval, the terms of the
individual agreements may not reflect the strength,
bargaining power, and welfare of the employees as
a group. Indeed, the practice and philosophy of
collective bargaining look with suspicion upon indi-
vidual agreements. J.J. Case, 321 U.S. at 338-39
. & @
Southern Pacific, 636 F. Supp. at 58-59 (citation
omitted).
32a
The majority opinion is simply wrong. To allow this
error to persist and become precedent under the RLA
will be catastrophic. The effect of the opinion is to cast
distrust on the fundamental mechanisms Congress has
| designed to maintain industrial peace under the Rail-
way Labor Act. The district court should be affirmed
in all respects.
HEANEY, Circuit Judge, dissenting, with whom LAY,
| Chief Judge, and McMILLIAM and ARNOLD, Cir-
cuit Judges, join.
I respectfully dissent. By negotiating the individual
severance agreements at issue in this case, Soo Line is
| attempting to diminish its obligations under the existing
collective bargaining agreement (which includes the
| Labor Protective Agreement) at the expense and to the
direct detriment of those who would have qualified for
benefits under the Labor Protective Agreement. Such a
course of action is clearly prohibited under the RLA.
I
A comparison of the majority and panel opinions
| reveals that there is no dispute as to the relevant facts.
Soo Line determined that as a result of a combination
of economic factors and the merger of Soo Line and
Milwaukee Railroad, Soo Line had more employees than
it needed. Majority opinion at 6. Several hundred of
these employees became “unnecessary” as a result of the
acquisition. Pursuant to the Labor Protective Agreement,
if Soo Line laid off employees and if the layoff resulted
from the merger, it was required to pay those employees
the equivalent of the wage earned at the time of the
adverse action for six years, unless they chose to accept
a lump sum payment (valued at about $38,000). Faced
with this obligation, Soo Line unilaterally decided to offer
voluntary separation pay plans to certain employees rep-
resented by unions other than the IAM. Under the plans,
employees who entered into separation agreements would
248 0G2.°eo™u_
33a
receive $15,000 in severance pay and if they were older
than sixty, would have their health and welfare benefits
continued for a period of five years. To take advantage
of the plans, employees were required to:
Release all rights under labor protective condi-
tions, including but not limited to, statutory, con-
tract, or agreement labor protection and those condi-
tions commonly referred to as Appendix B. * * *
[R]esign and relinquish all rights of or claims to
employment with the Soo Line Railroad * * * and
release and discharge said railroad company, * * *
parent or subsidiaries, from any and all claims of
whatsoever kind and nature growing out of or in
connection with said employment.
No negotiations were held with the unions representing
these employees. Many employees accepted the separa-
tion plan and terminated their services with Soo Line.
The IAM learned of the program and questioned Soo
Line concerning the availability of the program to ma-
chinists. Soo Line said it was not available. Thereafter,
eight machinists, all over sixty years of age, asked to
participate in the severance plan. Soo Line honored their
requests and, after signing the necessary releases, their
services with the railroad were terminated. Each re-
ceived a separation allowance of $15,000 and continued
eligibility for certain benefits until age sixty-five.
When the IAM learned that the severance plan was
being offered to some of its members, it objected. In
response to the objection, Soo Line and the Union nego-
tiated, in March and April of 1986, in an effort to reach
an acceptable separation agreement. The negotiations
were unsuccessful. At no time prior to or during the
series of meetings between Soo Line and the IAM did
Soo Line issue a notice pursuant to section 6 of the RLA,
45 U.S.C. § 156, triggering the dispute resolution pro-
cedures of the RLA. Soo Line thereafter announced its
intention to solicit machinists pursuant to its own sepa-
ration agreement containing essentially the same terms
ee
34a
as the agreements signed by other machinists. The IAM
then filed this action seeking to restrain Soo Line from
entering into separation agreements with individual ma-
chinists.
The matter was submitted to the district court on
affidavits, exhibits, and abbreviated oral testimony. The
parties stipulated that the hearing on the preliminary
injunction could also serve as the hearing for a perma-
nent injunction. The district court held that the dispute
between the parties was a major one and enjoined Soo
Line from entering into individual separation agree-
ments with employees represented by the IAM until Soo
Line complied with the notice and bargaining proce-
dures of section 6 of the RLA, 45 U.S.C. § 156.
The above stated facts are clear that, by negotiating
the individual severance agreements, Soo Line reduced
its obligations under the Labor Protective Agreement
and concurrently benefited select IAM members to the
direct deteriment of those members who would have
otherwise qualified for benefits under the Labor Protec-
tive Agreement. It did so despite the fact that the IAM
negotiated the Labor Protective Agreement in keeping
with the interests of all of its members. Moreover, Soo
Line knew precisely what it was doing and why. It con-
cedes as much in its petition for rehearing en bane when
it states that by taking this action it “avoids the pros-
pect of paying people to sit at home.” Petition for Re-
hearing at 2.
Moreover, those who would have been furloughed under
the Labor Protective Agreement but for the individual
severance agreements are not the only IAM members
affected. As a result of the individual agreements, both
work and employees will, in all probability, be trans-
ferred from one facility to another and seniority and
bidding rights of many IAM members affected. In this
light, it is disingenuous to conclude that the individual
agreements involved a matter of voluntary choice, per-
iene
35a
sonal to each employee. Majority Opinion at n.9. Rather,
it is clear that as a result of the individual agreements,
the “rates of pay, rules and working conditions” of the ~
IAM members as a whole will be significantly affected.
IT
The Supreme Court cases, which are binding upon this
Court, are clear that contracts between employers and
individual employees covered by collective agreements are
suspect. In J. I. Case Co. v. NLRB, 321 U.S. 332 (1944),
the Court stated:
[I]t is urged that some employees may lose by the
collective agreement, that an individual workman
may sometimes have, or be capable of getting, better
terms than those obtainable by the group and that
his freedom of contract must be respected on that
account * * * but we find that the mere possibility
that such agreements might be made no ground for
holding generally that individual contracts may sur-
vive or surmount collective ones. The practice and
philosophy of collective bargaining looks with sus-
picion on such individual advantages. Of course,
where there is great variation in circumstances of
employment or capacity of employees, it is possible
for the collective bargain to prescribe only minimum
rates or maximum hours or expressly to leave cer-
tain areas open to individual bargaining. But ex-
cept as so provided, advantages to individuals may
prove as disruptive of industrial peace as disadvan-
tages. They are a fruitful way of interfering with
organization and choice of representatives; increased
compensation, if individually deserved, is often
earned at the cost of breaking down some other
standard thought to be for the welfare of the group,
and always creates the suspicion of being paid at
the long-range expense of the group as a whole. * * *
We cannot except individual contracts generally from
36a
the operation of collective ones because some may be
more individually advantageous. Individual con-
tracts cannot subtract from collective ones.
321 U.S. at 338-39.
It is in light of the above quoted admonition that the
Supreme Court set forth the rigorous standard applicable
to an employer when it seeks to enter into an individual
agreement with an employee who is covered under a
collective bargaining agreement. It stated:
We know of nothing to prevent the employee’s, be-
cause he is an employee, making any contract pro-
vided it is not inconsistent with a collective agree-
ment or does not amount to or result from or is not
part of an unfair labor practice. But in so doing
the employer may not incidentally exact or obtain
any diminution of his own obligation or any increase
of those employees in the matters covered by the
collective agreement.
Id.; see also Order of Railroad Telegraphers v. Railway
Express Agency, 321 U.S. 342, 345 (1944).
Thus, in view of the fact that Soo Line has, for all prac-
tical purposes, admitted it entered into the individual
separation agreements in order to diminish its obliga-
tions under the Labor Protective Agreement, the practice
here at issue is plainly prohibited by J. I. Case.
ITI
The majority erroneously asserts that:
[T]he presence of the Individual Plan will not de-
prive any employees of the opportunity to be sepa-
rated under the terms of the Protective Agreement,
for the simple reason that an employee who opts for
the Individual Plan is not being deprived, but is
making a free choice. An employee who decides
37a
against the Individual Plan remains as eligible as
ever for the benefits of the Protective Agreement.
Majority Opinion at n.9.
The vice in the individual agreements, however, is the
significant effect they will have upon the collective agree-
ment, and in particular the Labor Protective Agreement.
Thus, the question whether the eight IAM members who
entered into the individual agreements did so voluntarily
or would have been affected by the acquisition is not
relevant. The appropriate considerations are the effects
of the acquisition and of the individual agreements on the
IAM membership as a whole and on their collective rights
under the Labor Protective Agreement.’
1 Thus, the majority’s statement that the eight IAM members
who took advantage of the Individual Plan would not have been
affected by the acquisition and therefore would have been ineligible
for benefits under the Protective Agreement simply misses the
point. The crux of this dispute is:
As a result of the Acquisition, the Protective Agreement re-
quired that those machinists with less seniority were fur-
loughed first and were being paid a day’s wages for not work-
ing; however, when the senior eight machinists quit and took
the $15,000, [less than half the amount available to those who
would have been furloughed under the Protective Agreement]
the seniority of the junior machinists was increased by eight
and some or all of them may have gone off furlough and back
in service.
Majority Opinion at n.10.
The majority would apparently exempt Soo Line from the bar-
gain it struck with the IAM in the Protective Agreement because
it results in “the prospect of paying people to sit at home.” 7d.
The majority would do so on the basis of the preamble to the Pro-
tective Agreement which lists among the general purposes of the
agreement to “provide for expedited changes” so that Soo Line may
operate “in the most efficient manner.” Jd.
Yet, even if the Protective Agreement could somehow be art-
fully construed to allow Soo Line to avoid specific provisions in it
because they are “inefficient,” such a highly interpretative process
38a
In this regard, Soo Line did not argue below and does
not argue here that it sought to reduce its complement
of machinists due solely to economic conditions. It rather
argues that, whatever the reason for the reduction, it
has the right to seek voluntary retirements from the
IAM members. The reason for this argument is clear.
If Soo Line had not used the individual separation agree-
ments as a means of avoiding the Labor Protective
Agreement and had furloughed employees, it could have
argued that some or all of the furloughs were unrelated
to the merger, and if the Union disagreed, the dispute
would have been subject te arbitration pursuant to the
terms of the Labor Protective Agreement. But, Soo
Line’s obligations under the Labor Protective Agreement
are not in dispute. Instead, the dispute centers on the
question whether Soo Line may entirely ignore the Labor
Protective Agreement and reduce its work force by indi-
vidually negotiating less costly individual retirement
agreements, or whether it must follow the seniority prin-
ciples set forth in the collectively negotiated Protective
Agreement and compensate laid-off employees pursuant
to it. :
IV
In light of the foregoing, it is not surprising that the
case law relied upon by the majority offers no real sup-
port for its position. In Caterpillar, Ine. v. Williams,
ita , 98 L.Ed.2d 318 (1977), the Supreme
Court simply reiterated the view expressed in J. I. Case
that individual contracts are valid “provided they are
not inconsistent with an existing collective bargaining
agreement.” Yet, in this case the inconsistency is appar-
ent and egregious.
would not be appropriate unless and until Soo Line’s obligations
under the Protective Agreement are actually in dispute. Here,
Soo Line simply seeks to avoid altogether its obligations under the
Protective Agreement by offering selected employees the Individual
Plan.
' : - —
39a
In Antinioli v. Leigh Coal and Naviation Co., 451 F.2d
1171 (3d Cir. 1971), also relied upon by the majority,
former railroad employees appealed the district court’s
denial of their claims. The claims were based on alleged
non-compliance with an ICC protective order and re-
quested allowances for furloughs and dismissals resulting
from a merger. The employees’ complaint set out three
counts. What the majority overlooks is that the Third
Circuit found counts I and II were barred by the ap-
plicable statute of limitations and count III was barred
by the doctrine of res judicata. Thus, the language cited
by the majority represents, at most, an alternative ra-
tionale to one of the statute of limitation holdings.
Moreover, the cases relied upon in Antonioli to sup-
port the alternative rationale simply hold that a union
may enter into an agreement with a carrier that limits
the rights of individual employees under a _ previously
executed labor protective agreement. See Roberts v. Le-
high & New England Railway Co., 211 F. Supp. 379
(E. D. Pa. 1962), aff'd, 323 F.2d 219 (3d Cir. 1963) ;
Clemens v. Central Railroad Co., 399 F.2d 825 (3d Cir.
1968), cert. cenied, 393 U.S. 1023 (1969); Nemitz v.
Norfolk and Western Railway Co., 436 F.2d 841 (6th
Cir.), aff'd, 404 U.S. 37 (1971). Yet, the fact that a
union may enter into such an agreement, does not mean
that its indivdual members may do so as well. Rather,
the individua agreements here at issue fall within the
plain prohibition of J. 7. Case. Thus, none of the deci-
sions cited by the majority supports its decision that a
union does not have the right to object to an employer
offering retirment benefits to select members when ac-
ceptance of the offer will deprive other members of the
union from firlough benefits previously agreed to by the
employer andthe union.
Finally, the majority asserts that, at best, this case
presents a minor dispute to be resolved by the National
Railroad Adustment Board. The question whether the
40a
Soo Line is free to negotiate individual separation agree-
ments, however, does not involve interpretation of either
the collective bargaining agreement or the Labor Protec-
tive Agreement. Instead, it involves an effort to recast
these agreements by negotiating individually with par-
ties bound by them. Therefore, Soo Line cannot meet
its “relatively light burden” of shewing that the dispute
concerns the meaning or interpretation of the collective
bargaining agreement or the Labor Protective Agree-
ment. See Brotherhood of Maintenance of Way Employ-
ees v. Burlington Northern R. R. Co., 802 F.2d 1016,
1022 (8th Cir. 1986).
The position taken by the district court—that this case
does not present a minor dispute—is supported by the
only two district court cases directly on point. See
Brotherhood of Railway, Airline & Steamship Clerks v.
Chesapeake and Ohio Railway Co., 115 L.R.R.M. (BNA)
3635 (N.D. Ohio 1983) ; Southern Pacific Transportation
Co. v. Brotherhood of Railway, Airline & Steamship
Clerks, 636 F. Supp. 57 (D. Utah 1986). In contrast,
the cases cited by the majority are simply not on point.
In Chambers v. Burlington Northern, Inc., 692 F.2d 109,
112 (10th Cir. 1982), the dispute involved a “claim by
one employee that the railroad had not recognized sen-
iority or paid the allowance to which he was entitled on
transfer.” Jd. at 113. Clausen v. Burlington Northern,
Inc., 106 L.R.R.M. (BNA) 2496 (D. Mont. 1980), in-
volved an individual transfer agreement under which
the employee gave up his seniority for a lump sum pay-
ment of $15,000.( His move did not adversely affect any
other employees.) Thereafter, the Union and the! em-
ployer negotiated an agreement providing transferred
employees with a $22,000 payment over three years and
retention of seniority. The employee then sought to re-
cover benefits under the newly negotiated agreement.
The court held that the case presented a minor dispute
for the Railway Adjustment Board. Thus, neither case
presented the issue under consideration in this case.
4la
The two cases cited by the majority which do con-
sider disputes similar to this one simply do not help the
majority’s position. In those cases, the district courts
found the employers’ contentions—that past practice per-
mitted individual agreements—were not frivolous. See
Transportation-Communication Employees Union v.
Grand Trunk Western Railroad Co., No. 87-74196 (E.D.
Mich. Feb. 23, 1988); International Association of Ma-
chinists and Aerospace Workers v. Illinois Central Gulf
Railroad Co., 102 Lab. Cas. (CCH) 711,345 (S.D. Ill.
1984). Here, the majority correctly recognizes that Soo
Line did not claim that the Individual Agreements were
authorized by past practice. Majority Opinion at n.11.
Thus, the cases are simply inapposite. Moreover, in light
of the applicable statutory authority and case law, it is
simply erroneous to interpret the dicta in Grand Trunk
and Illinois Gulf Central as indicating they would reach
a similar result if no past practice had existed.
Stripped of its case law support, the majority is left
to argue that the plain language of the Labor Protective
Agreement requires arbitration. Yet, the plain language
only states that any dispute over the “interpretation” or
“application” must be resolved by binding arbitration.
This case, however, does not present a dispute over inter-
pretation or application of the Labor Protective Agree-
ment. Soo Line simply seeks to ignore the agreement
and to reduce its work force through an alternative tech-
nique which will diminish its clear obligations under the
Labor Protective Agreement. It seeks to do so at the
expense of those in the bargaining unit who would have
otherwise been entitled to benefits previously bargained
for by the IAM with the interests of all its members in
mind. The Supreme Court recognized long ago in J. I.
Case the impropriety of such conduct. This Court should
do likewise.
A true copy.
Attest:
Clerk, U.S. Court of Appeals, Eighth Circuit.
42a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AERO-
SPACE WORKERS, DISTRICT LODGE No. 19, an unincor-
corporated labor organization,
Appellee,
S00 LINE RAILROAD COMPANY, a Minnesota corporation,
Appellant.
Appeal from the United States District Court
for the District of Minnesota
Submitted: May 14, 1987
Filed: November 12. 1987
sefore HEANEY, Circuit Judge, FLOYD R. GIBSON,
: T ] 27
lige, and MAGILL, Cireuit Judge.
HEANEY, Circuit Judge.
43a
The Soo Line Railroad Company (Soo Line) appeals
from a decision of the United States District Court for
the District of Minnesota enjoining the 500 Line from
entering into separation agreements with individual
members of the International Association of Machinists
and Aerospace Workers, District Lodge No. 19, (Machin-
ists’ Union) in violation of the Railway Labor Act
(RLA), 45 U.S.C. $$ 151-188, until such time as the 500
Line complies with the notice and bargaining procedures
set forth in the RLA.
The Soo Line contends on appeal that the district court
did not have jurisdiction over the subject matter of the
dispute between the Soo Line and the Union for the
reason that the dispute between them was not a major
dispute subject to the mandatory bargaining procedures
of the RLA, but was rather a matter personal to each
employee and did not concern rates of pay, rules or
working conditions. Alternatively, the Soo Line argues
that if there is a dispute within the meaning of the
RLA, it is a minor dispute subject to resolution by the
National Railroad Adjustment Board. In our view, the
findings of the district eourt are not clearly erroneous,
and its legal conclusions are correct. We thus affirm.
FACTS
On February 19, 1985, the Soo Line acquired the core
rail assets of the Chicago, Milwaukee, St. Paul and
Pacific Railroad Company (Milwaukee). On January 1,
1986, the Milwaukee was merged into the Soo Line sys-
tem. On September 19, 1985. the Soo Line entered into
an employee protective agreement with the Machinists’
Union. The preamble of the agreement states:
The purpose of this agreement is to provide pursuant
to 49 U.S.C. § 11347 of the Interstate Commerce
Act, for joint and equitable arrangements to protect
the interest of Employees adversely affected hy the
acquisition; and to provide for expedited changes im
44a
services, facilities. operations, sen lority and existing
collective bargaining agreements * * *. [Emphasis
added. |
The agreement provides that existing collective bar-
gaining agreements shall be preserved. It states that
any employee of the merged railroad company laid off
as a result of the acquisition of the Milwaukee is entitled
to certain benefits from the Soo Line, including a sey-
erance allowance which. depending on the employee’s
length of service, could exceed $38,000.
In December, 1985, the Soo Line decided to reduce the
number of employees on its payroll. It offered voluntary
separation pay plans to certain employees represented by
unions other than the Machinists’ Union. Under this
plan, employees who accepted separation would receive
$15,000 in severance pay and, if they were older than
60, would have their health and welfare benefits contin-
ued for a period of five years. To take advantage of the
plan, each employee was required to:
Release all rights under labor protective condi-
tions, including but not limited to, Statutory, con-
tract, or agreement labor protection and those condi-
tions commonly referred to as Appendix B. * * *
Rlesign and relinquish all rights of or claims to
employment with the Soo Line Railroad * * * and
release and discharge said railroad company, * * *
parent or subsidiaries, from any and all claims of
whatsoever kind and nature growing out of or in
connection with said employment.
No negotiations were held with the unions representing
these employees. Many employees accepted the separation
plan and terminated their services with the Soo Line. The
Machinists’ Union learned of the program and questioned
the Soo Line with respect to the applicability of the pro-
gram to machinists. The Company said it was not applic-
able. Thereafter, eight machinists, all over sixty years of
45a
age, contacted the Soo Line asking to participate in the
severance plan. Their requests were honored and, after
signing the necessary releases, their services with the
railroad were terminated. Each received a separation al-
lowance of $15,000 and became eligible to continue to re-
ceive certain health benefits until age sixty-five.
When the Machinists’ Union learned that the severance
plan was being offered to some of its members, it ob-
jected. In response to the objection, the Soo Line and the
Union negotiated, in March and April of 1986, in an ef-
fort to reach an acceptable separation agreement. The
negotiations were unsuccessful. At no time prior to or
during the series of meetings between the Soo Line and
the Machinists’ Union did the Soo Line issue a notice
pursuant to section 6 of the RLA, 45 U.S.C. § 156, trig-
gering the dispute resolution procedures of the RLA. The
Soo Line thereafter announced its intention to solicit
machinists pursuant to its own separation agreement con-
taining essentially the same terms as the agreements
signed by other machinists. The Machinists Union then
filed this action seeking to restrain the Soo Line from
entering into separation agreements with individual
machinists.
The matter was submitted to the district court on af-
fidavits, exhibits, and abbreviated oral testimony. The
parties stipulated that the hearing on the preliminary
injunction could be considered as the hearing for a
permanent injunction. The district court held that the
dispute between the parties was a major one. It reasoned
that section 6 of the RLA
establishes a comprehensive series of bargaining pro-
cedures, complete with detailed timetables and pro-
visions for notice, to be followed by employers and
bargaining representatives in effecting changes in
rates of pay, rules, and working conditions. 45
U.S.C. § 156. When employers wish to make changes
in any regulated area, the statute mandates written
46a
notice of the desired modification, after which con-
ferences between management and labor take place,
with the optional assistance of the National Media-
tion Board. -
{t then reviewed the cases which have defined the dif-
ference between major and minor disputes and found
that the dispute between the parties was major. It
stated:
[T}he Court is not called upon to review the status
of either labor or management at the interstices of
an agreement. Instead, the case presents funda-
mental issues of whether or not a person may even
be an employee or a member of a union. We are not
defining an interemployment relationship, but the
fundamental nature of the employment relationship
itself.
Both parties agree that there is no provision in
the existing agreements between the Union and Soo
Line allowing solicitation of individual union mem-
bers or for individual lump-sum separation agree-
ments. Under the Elgin definition and the decisions
of the other courts which have faced the jurisdic-
tional issue in the present context, this dispute is
major, and this Court therefore has jurisdiction over
it.
The court then went on to hold that individual agree-
ments such as those proposed by the Soo Line are im-
permissible. In reaching its decision, it relied on J. J.
Case Co. v. National Labor Relations Board, 321 US.
322, 337 (1944), Order of Railroad T+ legraphers v. Rail-
way Express Agency, 321 U.S. 342, 345 (1944). and on
two district court cases, Brotherhood of Railway Airline
Clerks and Steamship Clerks v. Chesapeake and Ohio
Railway Co., 115 LRRM 3635 (N.D. Ohio 1983) ( pro-
hibiting negotiation of individual severance agreements),
and Southern Pacific Transportation Company v. Brother-
47a
hood of Railway, Airline and Steamship Clerks, 636 F.
Supp. 57 (D. Utah 1986) (same). The district court
stated that like the present case, both C & O and South-
ern Pacific
involved individual severance agreements where bar-
gained-for furlough programs were in place. Be-
cause the proposed individual agreements circum-
vented the union’s involvement in an established sub-
ject of collective bargaining, and because this cir-
cumvention occurred in areas occupied by existing
collective agreements, those courts found the rail-
roads’ conduct to be illegal.
This Court sees no significant difference between
those cases and the present one. If these company ’
individual agreements were to be allowed, the union
would be denied the right of access to formal ne-
gotiation concerning compensation for severance; a
right secured to it by Section 6. Further, these
events oecur in a setting in which an existing fur-
lough plan is in place. Under these conditions, the
Court finds that Soo Line’s conduct violates the RLA
and its underlying policies. [Citation omitted. |
Thus, the court held that injunctive relief is appropri-
ate and enjoined the Soo Line from entering into in-
dividual separation agreements with employees repre-
sented by the Machinists’ Union until such time as the
Soo Line complies with the notice and bargaining pro-
cedures of section 6 of the RLA, 45 U.S.C. § 156.
ANALYSIS
The district court properly held that it had jurisdiction
over the subject matter of the dispute. Under the RLA,
the Soo Line has an obligation to bargain collectively
with the Machinists’ Union and to refrain from inter-
ferring with that Union’s representation of its members.
The United States Supreme Court decided in 1944 that
—i
48a
an employer may not, in most instances, use individual
contracts to defeat the procedures prescribed by the
National Labor Relations Act. It stated:
|T|he individual contract cannot be effective as a
waiver of any benefit to which the employee other-
wise would be entitled under the trade agreement.
The very purpose of providing by statute for the
collective agreement is to supercede the terms of
separate agreements of employees with terms which
reflect the strength and bargaining power and serve
the welfare of the group. Its benefits and advan-
tages are open to every employee of the represented
unit, whatever the type or terms of his pre-existing
contract of employment.
%
“ * We are not called upon to say that under
no circumstances can an individual enforce an agree-
ment more advantageous than a collective agree-
ment, but we find the mere possibility that suc’
agreements might be made no ground for holding
generally that individual contracts may survive or
surmount collective ones. The practice and philos-
ophy of collective bargaining looks with suspicion
on such individual advantages. Of course, where
there is great variation in circumstances of employ-
ment or capacity of employees, it is possible for the
collective bargain to prescribe only minimum rates
or maximum hours or expressly to leave certain
areas open to individual bargaining. But except as
so provided, advantages to individuals may prove as
disruptive of industrial peace as disadvantages. They
are a fruitful way of interfering with organization
and choice of representatives: increased compen-
sation, if individually deserved, is often earned at
the cost of breaking down some other standard
thought to be for the welfare of the group, and
always creates the suspicion of being paid at the
long range expense of the group as a whole.
49a
J. I. Case Co. v. National Labor Relations Board, 321
U.S. at 338-339.
The principles enunciated in J. J. Case Co. are equally
applicable to employees covered by the RLA rather than
the National Labor Relations Act. Order of Railroad
Telegraphers v. Railway Express Agency, 321 U.S. 342
(1944). The precise evil identified in J. I. Case Co. is
present here.! The Machinists’ Union and the Soo Line
have negotiated a labor protective agreement which spe-
cifically sets forth the benefits that employees who are
laid off as a result of the merger are to receive.” These
benefits exceed those available to employees who accept
voluntary separation. It is obvious that the Soo Line
will benefit if it can obtain agreements from employees
to retire voluntarily and to waive their rights under the
labor protective agreement signed by the company and
1The Soo Line cites Clausen v. Burlinaton Northern, Inc., 98
LRRM 2844 (D. Mont. 1978) in support of its action. We do not
believe the case supports Soo Line’s position. In that case the
district court simply dismissed the plaintiff’s complaint without
prejudice for failure to allege that the employer’s actions were
inconsistent with the collective bargaining agreement.
2The Soo Line argues that an employee protective agreement
signed by the parties is not a collective bargaining agreement
within the purview of J. 7. Case Co. and therefore the Soo Line
can enter into voluntary separation agreements with individual
employees even if the agreements are in derogation of the terms
of the protective agreement. We disagree. Once a labor protective
agreement is negotiated and signed by the employer and the union,
it has the same status as the collective bargaining agreement it
may modify. We do not read Antonioli v. Lehigh Coal and Naviga-
tion, 451 F.2d 1117 (3rd Cir. 1971) to hold to the contrary. Two
of the three counts in the complaint were dismissed on statute of
limitation grounds and the third count on res judicata or, alterna-
tively, law of the case grounds. In note 15, the court states that an
individual employee may waive his rights under a labor protective
agreement for valid consideration. An employee may do so if the
agreement between himself and the railroad company is not in
derogation of the rights of others. No such claim was asserted in
Antoniolt.
50a
the union. (It will pay those employees voluntarily sep-
arating from service less than it would pay those em-
ployees separating as a result of the merger under the
labor protective agreement.) It is equally obvious that
voluntary retirement under the company’s terms is at-
tractive to some employees. As might be expected, the
eight machinists who initially accepted voluntary sep-
aration were older employees to whom separation was
attractive. They were eligible for retirement benefits,
were paid $15,000, and guaranteed continuation of their
health benefits in exchange for, in effect, retiring a few
years early. These employees were not necessarily those
who would have been eligible to receive benefits under the
labor protective agreement. The fact that the Soo Line
and certain individual employees will benefit is not,
however, sufficient, in and of itself, to find a violation of
the RLA. The important thing is that these agreements
have an adverse impact on the machinists as a group.
The impact on the union and its members of the vol-
untary separation plan will be significant. As a result
of the individual agreements, work has been or will be
transferred from one facility to another, seniority and
bidding rights of some employees will inevitably be af-
fected, and some employees will, in all probability, be
deprived of the opportunity to be separated under the
terms of the labor protective agreement. Although the
jobs of the remaining employees may be more secure
after voluntary separation of some machinists, they would
have also become more secure if employees were sep-
arated pursuant to the labor protective agreement.
The Soo Line argues that some of the layoffs were
unrelated to the merger and were caused by a decline in
business activity. It points out that in these circum-
stances the employees laid off would not be eligible for
any benefits under the labor protective agreement. This
is true, but at least some of the employee layoffs were
a result of the merger. The bottom line is that the union,
5la
as the representative of all of the machinists, is en-
titled to balance the advantages and disadvantages of
any proposed plan and to negotiate with respect to thera.
One thing is certain; every employee who accepts vol-
untary separation decreases the likelihood of the Soo
Line being required to compensate an employee under
the labor protective agreement.
The Soo Line and the Machinists’ Union attempted to
negotiate a new separation agreement, presumably an
agreement to provide for the separation of certain em-
ployees and to establish separation allowances for af-
fected employees. The agreement presumably would have
applied to separations whether caused by loss of business
or by virtue of the merger, but the parties were unable
to reach an agreement. At this point, the Soo Line was
requested to follow the procedures set forth in the RLA.
See 45 U.S.C. § 156 (requiring 30-day notice of intended
change in agreement). Instead, it proceeded unilaterally
with its plan for a voluntary separation and in so doing,
violated the clear and specific terms of the RLA. See id.
(“carriers * * * shall give at least thirty days’ written
notice of an intended change in agreements affecting
rates of pay, rules, or working conditions.”); 45 U.S.C.
§ 152 seventh (‘No carrier, its officers or agents shall
change the rates of pay, rules, or working conditions of
its emplovees, as a class as embodied in agreements ex-
cept in the manner prescribed in such agreements or in
Section 156 of this title’’).
Alternatively, the Soo Line argues that if there is a
labor dispute, it is a minor rather than a major dispute.
The district court found to the contrary and we agree.
The dispute does not involve interpretation of either the
collective bargaining agreement or the labor protective
agreement. It rather involves an effort on the part of
the Soo Line to ignore both of these agreements and to
negotiate individually with the employees on a matter
which is a subject of mandatory bargaining. Therefore,
52a
the Soo Line cannot meet its “relatively light burden”
of showing that its action is at most a minor change in
the agreements of the parties. See Brotherhood of Main-
tenance of Way Employees, Lodge 16 v. Burlington
Northern R.R. Co., 802 F.2d 1016, 1022 (8th Cir. 1986).
The judgment of the district court is affirmed.
MAGILL, Circuit Judge, dissenting.
I dissent. The majority holds that the district court
properly had jurisdiction over what was a major dispute.
I believe, however, that the events at issue here cannot
be characterized as a dispute and thus are not subject
to collective bargaining under the Railway Labor Act.
Moreover, assuming arguendo that a dispute exists, I
believe it is unquestionably a minor, rather than a major,
dispute and thus was insufficient to vest the district court
with jurisdiction, but rather, should have been submitted
to binding arbitration.
This case has its genesis on February 19, 1985. On
that date, the Soo Line acquired the Chicago, Milwaukee,
St. Paul and Pacific Railroad Company (Milwaukee)
from its trustee in bankruptcy.
On March 1, 1985, the Soo Line and the Machinists’
Union (Union) entered into a collective bargaining agree-
ment (CBA). The CBA was negotiated pursuant to the
Railway Labor Act, and set out rules concerning working
hours and conditions, layoffs, promotions and seniority,
and grievances and discipline. The CBA made no men-
tion whatsoever of an employee’s voluntary resignation.
Pursuant to the acquisition of Milwaukee ( Acquisi-
tion) the Soo Line entered into an employee protective
agreement (Protective Agreement) with the Union on
September 10, 1985. The Protective Agreement was re-
quired by 49 U.S.C. $ 11348 et seq., which mandates that
conditions protective of labor be established when speci-
fied railroad transactions take place. As the preamble
of the Protective Agreement states:
53a
The purpose of_this agreement is to provide pur-
suant to 49 U.S.C. Section 11347 of the Interstate
Commerce Act, as amended, and the Milwaukee Re-
structuring Act, for fair and equitable arrangements
to protect the interests of Employees adversely af-
fected by the Acquisition; and to provide for ex-
pedited changes in services, facilities, operations,
seniority and existing collective bargaining agree-
ments to enable the expanded railroad system cre-
ated by the Acquisition to be operated in the most
efficient manner, as one completely integrated rail-
road. (Emphasis added. }
As the majority opinion accurately summarizes, “[t]he
agreement provides that existing collective bargaining
agreements shall be preserved. It states that any em-
ployee of the merged railroad company laid off as a result
of the acquisition of the Milwaukee is entitled to certain
benefits from the Soo Line, including a severance allow-
ance which, depending on the employee’s length of service,
could exceed $38,000.” Slip op. at 2 (emphasis added}.
The majority later notes that the Protective Agreement
“specifically sets forth the benefits that employees who are
laid off as a resull of merger are to receive.” Slip op. at
7 (emphasis added). Thus, the majority appears to recog-
nize two key aspects of the Protective Agreement: (1)
that it only applies to employees who are “af*ected,” or
laid off, and (2) that it only applies if the layoff is the
result of the Acquisition.
Despite this recognition, the majority then holds that
the Protective Agreement bars employees, not found to be
affected by the Acquisition, from voluntarily deciding to
resign and from seeking the lump-sum separation agree-
ment made available by the Soo Line (Individual Plan).
Such an extrapolation of the Protective Agreement is
unwarranted and unsupported.
The error in this regard began in the district court,
which failed to make any findings as to whether or not the
54a
eight Union members who sought the Individual Plan were
affected by the Acquisition. Such a finding is essential in
this case, because of the carefully circumscribed condi-
tions necessary to trigger application of the Protective
Agreement. From what I can discern of the district
court’s vague analysis, the court apparently concluded that
any furlough or reduction in work force, whether spe-
cifically related to the Acquisition or not, would cause the
Protective Agreement to apply. Even a cursory reading
of the Protective Agreement shows that such a sweeping
interpretation is wrong. The majority, rather than cor-
recting the district court’s erroneous analysis, both ac-
cepts and compounds it. After noting the Soo Line’s argu-
ment that some of the “layoffs” (as termed by the ma-
jority) were unrelated to the Acquisition, and accepting
as true the proposition that in these circumstances, the
“laid-off” employees could not benefit from the Protective
Agreement, the majority then concludes that “at least
some of the employee layoffs” were the result of the Ac-
quisition. Slip op. at 9. This imprecise analysis is wrong
in three respects. First, the employees at issue were not
laid off but came forward voluntarily, seeking the Indi-
vidual Plan.* Second, there was no finding in the district
1 The district court’s analysis of this issue is as follows:
If these company/individual agreements were to he allowed.
the union would be denied the right of access to formal nego-
tiation concerning compensation for severance; a right secured
to it by Section 6. Further, these events occur in a setting in
which an existing furlough plan is in place. Under these con-
ditions, the Court finds that Soo Line’s conduct violates the
RLA and its underlying policies.”
District Court at 8.
* Indeed, the instances in which the Soo Line offered the Indi-
viduai Plan involved other unions and were not disputed. In this
case, the Union employees who opted for the Individual Plan ap-
proached the Soo Line on their own accord. Thus I am skeptical
of any argument that the Union employees at issue were affected
by the Acquisition, because their position had been unchanged by
55a
court that “some,” or for that matter any, employees at
issue were affected by the Acquisition. Third, assuming
a finding that some employees were so affected, the
Protective Agremeent would apply to only those employees
but could not be used to bring within its scope employees
to whom it clearly does not apply, namely, those employees
who were not affected by the Acquisition.
I also reject the majority’s conclusion that the CBA and
the Protective Agreement prohibit the Individual Plan.
The district court accepted that both the CBA and the
Protective Agreement were silent on the issue of individ-
ual lump-sum separation agreements. District Court Or-
der at 6. The majority concludes, however, that the issue
of individual voluntary resignation, which is nowhere
mentioned in either the CBA or the Protective Agreement,
nonetheless falls within the scope of these agreements and
qualifies under them as a major dispute.* I take issue
with the majority’s effort not only to fit a square peg into
a round hole, but to remove the peg from its correct hole
in order to do so. It seems clear to me that if an issue
is not covered by an agreement, then the issue is simply
not covered. The Individual Plan offered by the Soo Line
has no conflicting effect on either the Protective Agree-
ment or the CBA.
There is no effect on the Protective Agreement because
of the accepted fact that the Protective Agreement makes
no mention whatsoever of voluntary lump-sum separation
plans. Thus the Protective Agremeent is inapplicable to
this case, first because it applies only to employees af-
fected by the Acquisition, and as I have noted, there were
the Acquisition until they decided, for reasons personal to them,
to approach the Soo Line seeking individual lump-sum separation
agreements.
3 Although the majority cites no case law, see slip op. at 7 n.2,
I accept for purposes of this argument their contention that the
Protective Agreement has the status of a_collective bargaining
agreement.
56a
no findings that the eight Union employees at issue were
so affected, and second, because even if these employees
had been affected by the Acquisition, the Soo Line’s ac-
tions in this case neither ran afoul of nor remotely ap-
proached any prohibition in the Protective Agreement.
Similarly, the Individual Plan does not controvert the
CBA. Of great importance in this regard are the state-
ments of Mr. Jensen, counsel for the Union, speaking
before the district court:
I asked [Ms. Cathy Frankenberg, Director of Labor
Relations for the Nonoperating Crafts with the Soo
Line Railroad] whether or not there was anything
that allowed what the Burlington or Soo Line was
doing, whether there was anything in the collective
bargaining agreement allowing it or prohibiting it,
she said no. And I think that’s true. * * * Rest
assured if there was something in the collective bar-
gaining agreement or the protective agreement that
the Soo Line was violating by entering into the sepa-
ration agreements we would have grieved it and we
would have take[n] it to the Systems Board.
Hearing Transcript at 51 (emphasis added).
The majority next concludes that the presumed dispute
is major, not minor, and thus requires mandatory bar-
gaining. The majority notes that the dispute does not
involve interpretation of either the CBA or the Protective
Agreement. The majority then summarily concludes that
the Soo Line is trying “to ignore both of these agree-
ments and to negotiate individually with the employees on
a matter which is a subject of mandatory bargaining.”
Slip Op. at 10. This statement presumes its own con-
clusion.
The Supreme Court set out the difference between major
and minor disputes in Elgin, J. & E. Railway Co. v.
Burley, 325 U.S. 711 (1945) :
|
57a
[I]t is clear from the [Railway Labor] Act itself,
from the history of railway labor disputes and from
the legislative history of the various statutes which
have dealt with them, that Congress has drawn major
lines of difference between the two classes or contro-
versy.
The first {“major”’ disputes] relates to disputes
over the formation of collective agreements or efforts
to secure them. They arise where there is no such
agreement or where it is sought to change the terms
of one, and therefore the issue is not whether an
existing 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.
The second {minor dispute] class, however, con-
templates the existence of a collective agreement al-
ready concluded or, at any rate, a situation in which
no effort is made to bring about a formal change in
terms or to create a new one. The dispute relates
either to the meaning or proper application of a
particular provision with reference to a specific situa-
tion or to an omitted case. In the latter event the
claim is founded upon some incident of the employ-
ment relation, or asserted one, independent of those
covered by the collective agreement, e.g., claims on
account of personal injuries.
Elgin, 325 U.S. at 722-23 (citations omitted, emphasis
added). The Supreme Court went on tv explain that
major disputes involve “large issues about which strikes
ordinarily arise’ while minor disputes represent indi-
vidual disputes, “aris|ing] incidentally in the course of
an employment” and are “of a detailed or individual
quality.” Jd. at 724.
The district court, upon whose analysis the majority
relies, found this dispute to be major because it did not
require review of “the status of either labor or manage-
58a
ment at the interstices of an agreement. Instead, the
case presents fundamental issues of whether or not a
person may even be an employee or a member of a union.
We are not defining an inter-employment relationship,
but the fundamental nature of the employment relation-
ship itself.” District Court Order at 6.
I believe, however, that under applicable law this is-
sue, if at all a dispute, is a minor one. This dispute
does not relate to “the formation of collective agreements
or efforts to secure them.” Elgin, 325 U.S. at 723. No
one seeks to change the terms of the existing agreements
or bring a new one into being; rather, as the testimony
established, the CBA and the Protective Agreement sim-
ply do not cover this issue. This issue falls squarely
within the definition of a minor dispute as an “omitted
case,” because it is founded upon an incident of the em-
ployment relation independent of those covered by both
the CBA and Protective Agreement.
The message of /./. Case, relied upon by the majority,
is that individual employment contracts may exist side-
by-side with a collective bargaining agreement. J. J.
Case, 321 U.S. at 336-37. This message was repeated
in Order of Railroad Teleqraphers v. Railway Express
Agency, Inc., 321 U.S. 342, 347 (1944): “Collective
bargains need not and do not always settle or embrace
every exception. It may be agreed that particular situa-
tions are reserved for individual contracting, either com-
pletely or within prescribed limits.” This message was
forcefully restated in Caterpillar Inc. v. Williams, 107
S. Ct. 2425 (1987). The Court stated: “J.I. Case does
not stand for the proposition that all individual employ-
ment contracts are subsumed into, or eliminated by, the
collective-bargaining agreement.” The Court then noted
that “a plaintiff covered by a collective-bargaining agree-
ment is permitted to assert legal rights independent of
that agreement, * * * so long as the contract relied upon
is not a collective-bargaining agreement.” Caterpillar,
59a
107 S. Ct. at 2431-32. The Individual Plan at issue here
can stand side-by-side with both the CBA and the Pro-
tective Agreement, because it is not covered by either
agreement, nor does it detract from rights created by
the two agreements. Rather, the Individual Plan rep-
resents the employees’ assertion of their legal right to
contract individually by seeking a retirement option avail-
able to them.
The district court and the majority both cite Brother-
hood of Railway, Airline and Steamship Clerks v. Chesa-
peake and Ohio Railway Co., 115 LRRM 3635 (N.D. Ohio
1983), and Southern Pacific Transportation Co. v. Broth-
erhood of Railway, Airline and Steamship Clerks, 636
F. Supp. 57 (D. Utah 1986), for the proposition that
individual lump-sum separation agreements may not co-
exist with pre-established collective agreements. I be-
lieve these cases are inapposite. The Chesapeake and Ohio
court found first that the voluntary separation plan vio-
lated the Railway Labor Act because it “would constitute
individual agreements which subtract from the collective
bargaining agreement and result in a diminution of de-
fendant’s obligation under the collective bargaining agree-
ment.” Chesapeake and Ohio, 115 LRRM at 3639. In
that case, however, the applicable collective bargaining
agreement contained specific employment protection pro-
visions and furlough allowances that far exceeded any
protection afforded to the machinists in this case under
either the CBA or the Protective Agreement. During
the hearing in the district court, the following inter-
change took place between counsel for the Soo Line and
Ms. Frankenberg, Director of Labor Relations for the
Nonoperating Crafts with the Soo Line:
Q. What is the difference in the level of protection
afforded the BRAC employees under the agreement
with the C&O and the level of protection afforded the
machinists under this current dispute?
60a
A. In the BRAC agreement an employee who has
performed three or more years of service with the
C&O in the clerical craft—
THE COURT: Is employed for life?
THE WITNESS: And has a bolted position, has a
life time protection to certain obligations that they
must meet.
+ + +
THE WITNESS: And that can be differentiated
from that protection which the machinists have be-
cause they have to be affective [sic] in order to be
eligible for protection and the cap on that protection
is Six years.
Q. So basically after a certain period of time they
[the Chesapeake and Ohio clerks] have lifetime pro-
tection.
A. The clerks [in the Chesapeake and Ohio case]
do, yes.
Hearing Transcript at 41-42.
Another distinction is that unlike the BRAC agreement
in the Chesapeake and Ohio case, here the major protec-
tion given to employees is limited to employees who can
prove that they are “adversely affected” by the Acquisi-
tion. The Individual Plan thus does not subtract from the
CBA as did the individual lump-sum separation agree-
ments in Chesapeake and Ohio, nor is the Soo Line’s obli-
gation under the CBA or Protective Agreement diminished
by the Individual Plan.
The Southern Pacific case, also relied on by the ma-
jority, appears to have adopted the rationale of Chesa-
peake and Ohio, see Southern Pacific, 636 F. Supp. at 59,
and accordingly I do not find it to be any more persuasive
authority.
In sum, the two cases are inapposite for the reason that
their existing agreements provided a much higher level of
ow
6la
protection for employees, thus in effect “closing the door”
to a voluntary lump-sum separation plan, while the CBA
and Protective Agreement in this case, by virtue of their
silence on the subject, can coexist with a voluntary lump-
sum separation plan. Indeed, any language in the Pro-
tective Agreement which could be arguably construed as
touching upon a voluntary lump-sum separation plan
appears to allow such a plan. Section 9 of the Protective
Agreement provides in part:
Nothing in this agreement shall be construed as de-
priving any Employee of any rights or benefits * * *
which such Employee may have under existing job
security or other protective conditions or arrange-
ments; previded, however, that if an Employee is
eligible for protection under both this Agreement and
some other * * * arrangements, such Employee shall
elect between protection under this Agreement and
protection under such other agreement.
Thus any interpretation of the Protective Agreement
which concludes that it somehow cover a voluntary lump-
sum separation plan must aiso conclude that such a plan
does not violate, but rather, is contemplated by, the
Protective Agreement.'
Contrary to the district court’s and the majority’s re-
liance on Chesapeake and Ohio and Southern Pacific, I
find other cases more convincing. In Chambers v. Burling-
ton Northern, Inc., 692 F.2d 109 (10th Cir. 1982), an
* This interpretation finds further support in section & of the
Protective Agreement, which provides that if a dispute should
arise with respect to the “interpretation, application or enforce-
ment of any provisions of this [Protective] Agreement, it may be
referred by any party to an arbitration board for resolution in
accord with the provisions of Article I, Section 11 of the New York
Dock Condition.” The Eighth Circuit has concluded that this
language imposes mandatory and binding arbitration of disputes.
Hoffman v. Missouri Pacific Railroad, 806 F.2d 800, 801 (8th Cir.
1986).
62a
employee protective agreement similar to the one at issue
was entered into pursuant to a merger. The railroad and
an emplyoee, however, had made an individual contract
under which the employee relinquished seniority rights
and accepted a transfer to another location in exchange
for a lump-sum payment. The court affirmed dismissal of
the complaint for lack of jurisdiction, on the ground that
the plaintiff’s claims raised “minor disputes for determi-
nation by the Adjustment Board, not the courts.” Cham-
bers, 692 F.2d at 112.
Similarly, in Clausen v. Burlington Northern, Inc., 98
LRRM 2844 (D. Mont. 1978), an employee accepted an
individual lump-sum payment in lieu of any benefits he
might accrue pursuant to a merger protection agreement.
The collective bargaining agreement in effect at the time
had no provision applicable to seniority or transfer al-
lowances. Contrary to the plaintiff’s assertion that the
existence of the collective bargaining relationship between
the railroad and the Union precluded individual contracts,
the court held that plaintiff’s argument was “clearly
faulty” under J.J. Case and failed to state a claim.
Clausen, 98 LRRM at 2845-46. See also Antonioli v. Lehigh
Coal and Navigation Co., 451 F.2d 1171, 1175-76 (3d
Cir. 1971), cert. denied, 406 U.S. 906 (1972) (“The va-
lidity of these documents [lump-sum retirement agree-
ments which waived rights under an ICC labor protection
order| as evidencing a knowing and intelligent waiver of
rights is established by this record. Therefore, plaintiff’s
claim must fall on the additional ground of the existence
of a valid waiver of the asserted rights.’’).
Finally, the majority asserts that the Individual Plan
has an adverse impact on the machinists as a group. In
support, the majority states that seniority and bidding
rights of some employees will inevitably be affected. Cer-
tainly seniority rights will be affected; however, the effect
on existing Union members will be a positive, not a nega-
tive one. As a result of the demand made by these eight
——
63a
machinists, all over sixty years old, for the Individual
Plan, the seniority of remaining Union members will be
increased. The majority further states that the Individual
Plan may deprive some employees of the opportunity to
be separated under the terms of the Protective Agreement.
I do not follow this statment. Any employee who opts
for the Individual Plan is not being deprived, but is
making a free chvice. An employee who decides against
the Individual Plan remains as eligible as ever for the
benefits of the Protective Agreement. The Individual Plan
has no impact on the terms of and benefits offered by the
Protective Agreement. It merely represents an alterna-
tive open to the free choice of the employees. The ma-
jority then concedes that the remaining employees will
have greater job security after some machinists opt for
the Individual Plan, but argues that this would also be
the case if employees were separated pursuant to the
Protective Agreement. That may be so, but it fails to
show any adverse impact on remaining employees as a
result of the Individual Plan.
In sum, because I believe the better-reasoned case law
combined with common-sense analysis supports allowance
of the Soo Line’s Individual Plan, I think the district
court did not have jurisdiction in this case. Accordingly,
I dissent.
A true copy.
Attest:
Clerk, U.S. Court of Appeals, Eighth Circuit.
64a
APPENDIX C
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Civil No. 4-86-353
INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, DISTRICT LODGE No. 19
Va
Soo LINE RAILROAD COMPANY
[Filed Aug. 14, 1986]
ORDER
Roger A. Jensen, PETERSON, BELL, CONVERSE
& JENSEN, 2100 American National Bank Build-
ing, St. Paul, Minnesota 55101, for plaintiff.
Patrick J. McPartland, Soo Line Railroad Company,
P.O. Box 530, Minneapolis, Minnesota 55440, for
defendant.
Plaintiff, International Association of Machinists and
Aerospace Workers, District Lodge No. 19 (the “Un-
ion”), is before the Court seeking a permanent, “status
quo,” injunction to prevent defendant, Soo Line Railroad
Company (“Soo Line” or “the Railroad”) from entering
65a
into separation agreements with individual union mem-
bers. Plaintiff asserts these individual agreements to be
in violation of the Railway Labor Act (“RLA”), 45
U.S.C. 150, [sic] et seg. For the reasons stated below,
plaintiff’s motion is granted.
Facts
In an effort to reduce the size of its work force, Soo
Line in 1985, began offering certain employees lump-sum
payments and insurance benefits in exchange for the
employee’s resignation and surrender of furlough and
lay-off benefits. Initially, these separation agreements in-
volved only employees represented by unions other than
plaintiff. However, and according to the Railroad in re-
sponse to requests from machinists, Soo Line offered
separation agreements to employees represented by the
plaintiff Union.
These efforts to reduce the numbers of employees took
place in the context of pre-existing collective bargaining
agreements: Soo Line maintains an agreement with the
Union which defines the basic employer-employee relation-
ship. In addition, in September, 1985, Soo Line entered
into an agreement with the Union as an adjunct to its
acquisition of Milwaukee Road. This agreement, called
an “Employee Protective Agreement,” among its terms
delineated detailed procedures to be followed in the event
that Soo Line engaged in reductions in the work force.
The agreement prescribed structured cash and insurance
benefits for furloughed employees.
Plaintiff objected to Soo Line’s direct contract with its
members. In response, the parties negotiated in March
and April, 1986, in an effort to craft an acceptable sepa-
ration agreement to be presented to the Union’s mem-
bers. Those negotiations were unsuccessful. Soo Line
thereafter announced its intention to begin soliciting se-
lected employees with its own final proposed separation
agreement on April 28, 1986. This lawsuit followed.
66a
In preliminary appearances before this Court, the parties
agreed that pending this present decision, no employee
termination resignation agreements would be made.
Analysis
Plaintiff contends that defendant’s entry into individual
separation agreements with union members violates pro-
visions of the RLA, and seeks a permanent injunction to
prevent defendant from pursuing such agreements absent
compliance with the notice and bargaining provisions of
45 U.S.C. 156. Defendant claims that this Court lacks
jurisdiction over the case because the nature of the under-
lying dispute between the parties vests exclusive jurisdic-
tion in the National Railroad Adjustment Board. 45
U.S.C. 152-154. Defendant then states that its activities
are in compliance with the provisions of the RLA. Fi-
nally, defendant asserts that plaintiff has not demonstrated
the necessity for injunctive relief.
The Court is therefore faced with three issues: a) its
jurisdiction over this matter; b) the legality under the
RLA of defendant’s actions; and ¢c) the need for injunc-
tive relief.
a. Jurisdiction
The Court’s jurisdiction over this dispute is determined
by reference to the RLA. Specifically, Section 6 of the
Act establishes a comprehensive series of bargaining pro-
cedures, complete with detailed timetables and provisions
for notice, to be followed by employers and bargaining
representatives in effecting changes in rates of pay, rules,
and working conditions. 45 U.S.C. 156. When employers
wish to make changes in any regulated areas, the statute
mandates written notice of the desired modification, after
which conferences between management and labor take
place, with the optional assistance of the National Media-
tion Board.
The procedures set forth in Section 6 do not apply to
railroad-employee disputes, however. Courts have focused
67a
upon a distinction, implicit in Sections 2 through 4 of the
RLA, between “major” and “minor” disputes. Rather
than having all disputes subjected to the deliberately
cumbersome negotiation procedures of Section 6, an estab-
lished body of RLA precedent holds that lesser or “minor”,
disputes are the exclusive province of the National Rail-
road Adjustment Board. 45 U.S.C. 152-154. United
Transportation Union v. Burlington Northern, Inc., 458
F.2d 354, 356-57 (8th Cir. 1972); United Transportation
Union v. Baker, 482 F.2d 228, 230 (6th Cir. 1973).
Defendant, claiming this is a minor dispute, argues that
this Court is without jurisdiction to consider the present
case and its requested injunction.
The distinction between major and minor disputes was
elucidated by the Supreme Court in Elgin, S. & E. Ry. Co.
v. Burley, 325 U.S. 711, 65 S.Ct. 1282 (1945).
(I]t is clear from the [National Railway Labor] Act
itself, from the history of railway labor disputes and
from the legislative history of the various statutes
which have dealt with them, that Congress has drawn
major lines of difference between the two classes of
controversy.
The first [“major” dispute] relates to disputes over
the formation of collective agreements or efforts to
secure them. They arise where there is no such agree-
ment or where it is sought to change the terms of
one, and 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.
The second [‘minor” dispute] class, however, con-
templates the existence of a collective agreement al-
ready concluded or, at any rate, a situation in which
no effort is made to bring about a formal change in
terms or to create a new one. The dispute relates
either to the meaning or proper application of a
68a
particular provision with reference to a specific situ-
ation or to an omitted case. In the latter event the
claim is founded upon some incident of the employ-
ment relation, or asserted one, independent of those
covered by the collective agreement, e.g., claims on
account of personal injuries.
Id., 325 U.S. at 722-23, 65 S.Ct. at 1289-90 (citations
omitted). The Supreme Court went on to explain that
major disputes involve “large issues about which strikes
ordinarily arise . . .” while minor disputes involve indi-
vidual disputes, “aris[ing] incidentally from the course
of an employment,” “of a detailed or individual quality.”
Id., 325 U.S. at 724, 65 S.Ct. at 1290.
This Supreme Court definition of major and minor dis-
putes has been further explicated by subsequent cases.
Brotherhood of Railway, Airline, and Steamship Clerks v.
Chesapeake & Ohio Ry. (C-83-451 N.D.Ohio, Oct. 19,
1983) (hereinafter referred to as C&O), and Southern
Pacific v. Brotherhood of Railway, Airline, and Steam-
ship Clerks, 85-NC-0192W (N.D. Utah, Jan. 9, 1986)
(hereinafter referred to as Southern Pacific). These cases
involve situations astonishingly similar to that presented
here. In each of these cases, a railroad sought to “expedite
attrition” among its ranks by offering lump-sum payments
to individuals represented by a labor union. In each case
the court determined that the railroad’s acts gave rise to
a major dispute, thus conferring jurisdiction upon the
Court. C&O, slip op. at 3-4, 5-6; Southern Pacific, slip
op. at 7-8.
The Court finds, as did the courts in C&O and Southern
Pacific, that this is a major dispute. This is because the
Court is not called upon to review the status of either
labor or management at the interstices of an agreement.
Instead, the case presents fundamental issues of whether
or not a person may even be an employee or a member
of a union. We are not defining an interemployment
relationship, but the fundamental nature of the employ-
ment relationship itself.
69a
Both parties agree that there is no provision in the
existing agreements between the Union and Soo Line al-
lowing solicitation of individual union members or for
individual lump-sum separation agreements. Under the
Elgin definition and the decisions of the other courts which
have faced the jurisdictional issue in the present context,
this dispute is major, and this Court therefore has juris-
diction over it. :
b. Defendant’s conduct and the RLA
The Union argues that it is unlawful for the Railroad
to negotiate with an individual employee when the em-
ployer is obligated to negotiate with the employee’s bar-
gaining representative on those same subjects. They fur-
ther argue that since severance pay is a mandatory subject
of bargaining, Soo Line may not enter into individual
separation agreements. Defendant responds that it has an
absolute right to enter into severance agreements with its
employees, that it is not obligated to negotiate with the
Union, and that individual agreements are not prohibited
unless they directly contravene an existing agreement.
The Court declines to adopt defendant’s argument.
Established precedent holds that individual agreements
such as those proposed by the Railroad are impermissible.
Earlier in this century the Supreme Court held that
railroads may not enter into individual agreements con-
cerning rates of pay and rules and conditions of employ-
ment in the face of collective bargaining agreements, and
that individual agreements may not be relied upon by em-
ployers te circumvent the collective bargaining provisions
of the RLA. J.T. Case Co. v. National Labor Relations
Board, 321 U.S. 322, 337, 64 S.Ct. 576, 580 (1944) ;
Order of Railroad Telegraphers v. Railway Express
Agency, 321 U.S. 342, 345, 64 S.Ct. 582, 584-85 (1944).
Relying on these decisions, the C&O and Southern Pacific
courts found such agreements in violation and in probable
violation of the RLA, respectively. C&O, slip op. at 6;
70a
Southern Pacific, slip op. at 7. Like the present case, both
C&O and Southern Pacific involved individual severance
agreements where bargained-for furlough programs were
in place. Because the proposed individual agreements
circumvented the union’s involvement in an established
subject of collective bargaining, and because this circum-
vention occurred in areas occupied by existing collective
agreements, those courts found the railroads’ conduct to
be illegal. Id.
This Court sees no significant difference between those
cases and the present one. If these company/individual
agreements were to be allowed, the union would be denied
the right of access to formal negotiation concerning com-
pensation for severance; a right secured to it by Section
6. Further, these events occur in a setting in which an
existing furlough plan is in place. Under these condi-
tions, the Court finds that Soo Line’s conduct violates
the RLA and its underlying policies.
e. Injunction
Plaintiff comes before the Court seeking a “status quo”
injunction, preventing defendant from entering into indi-
vidual separation agreements without first going through
the notice and bargaining requirements of Section 6 of
the RLA, 45 U.S.C. 156. Therefore, the final issue which
this Court must address is whether, given its jurisdiction
over the matter and its conclusion that defendant’s con-
duct in fact violates the RLA, a permanent injunction
should issue.
Traditionally, permanent injunctions are appropriate
only in extraordinary circumstances, as when irreparable
injury has occurred or will result, or where conventional
pecuniary relief will not address the injury experienced.
Beacon Theaters v. Westover, 359 U.S. 500, 508-09, 79
S.Ct. 948, 955-56 (1959); Petroleum Exploration v. Pub-
lic Service Commission, 304 U.S. 209, 217-19, 58 S.Ct.
834, 839-40 (1938)). This general analytical construct
T1la
is modified in the case of injunctions under the RLA. The
Eighth Circuit Court of Appeals has held that, where
courts are presented with a major dispute, injunctions may
issue absent a showing of irreparable harm. United
Transportation Union v. Burlington Northern, 458 F.2d
354, 357 (1972). In light of this holding by the Eighth
Circuit, the Court does not address the question of whether
or not past-occurring individual separation agreements
may give rise to irreparable harm.
The Court further notes that both of the prior courts
considering individual severance agreements under the
RLA issued injunctions to prevent subsequent attempts to
obtain individual agreements. The courts in both C&O
and Southern Pacific concluded that injunctive relief was
indicated when railroads entered into individual agree-
ments in contravention of the RLA. C&O, slip op. at 3-4,
8; Southern Pacific, slip op. at 9.
Based upon this precedential background, this Court
holds that it is appropriate to issue a permanent injunc-
tion at this time.’ Plaintiff has established that defend-
ant’s actions violate the bargaining procedures mandated
by Section 6 of the RLA, 45 U.S.C. 156, and is accordingly
entitled to the protections afforded by that Statute. The
only practical means of affording the Union this congres-
sionally prescribed authority is through injunction.
Conclusion
The Court thus finds: a) the present dispute is a major
dispute, as contemplated by the provisions of the RLA,
b) the defendant is in violation of the notice and bargain-
ing provisions of that Act, and c) a permanent injunction
1 Implicit in the negotiation rules of the NRA is the parties’
engagement in good faith negotiation. There has, of course, been
no suggestion that the past negotiations of the parties, while not
yet fruitful, have not been conducted in good faith. Absent such
a showing, this Court need not consider matters other than those
set forth above.
72a
should issue. Based upon these conclusions and the record
herein, IT IS ORDERED that:
Defendant Soo Line Railroad Company is permanently
enjoined from entering into individual separation agree-
ments with employees represented by plaintiff Interna-
tional Association of Machinists and Aerospace Workers,
District Lodge No. 19, until such time as defendant com-
plies with the notice and bargaining procedures set forth
in Section 6 of the Railroad Labor Act, 45 U.S.C. 156.
Dated: August 13, 1986
‘s/ James M. Rosenbaum
JAMES M. ROSENBAUM
United States District Judge
73a
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 86-5355MN
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AERO-
SPACE WORKERS, DISTRICT LODGE No. 19, an unincor-
porated labor organization,
“a Appellee, ~-
Soo LINE RAILROAD COMPANY,
a Minnesota corporation,
Appellant.
Appeal from the United States District Court
for the District of Minnesota
JUDGMENT
This appeal from the United States District Court was
submitted on the record of the district court, briefs of the
parties and was argued by counsel.
Upon consideration of the premises it is hereby ad-
judged and decreed that the judgment of the district court
is reversed, the injunction is dissolved and the case is
remanded for arbitration.
June 22, 1988
Order entered in accordance with opinion.
/s/ Robert D. St. Vrain
Clerk
U.S. Court of Appeals
Highth Circuit
74a
APPENDIX E
STATUTES RELIED UPON
Railway Labor Act, 45 U.S.C. $151, et seg. (Ex-
cerpts) }
Section 2 First
45 U.S.C. § 152 First
It shall be the duty of all carriers, their officers,
agents, and employees to exert every reasonable effort
to make and maintain agreements concerning rates of
pay, rules, and working conditions, and to settle all
disputes, whether arising out of the application of
such agreements or otherwise, in order to avoid any
interruption to commerce or to the operation of any
carrier growing out of any dispute between the car-
rier and the employees thereof.
Section 2 Third
45 U.S.C. § 152 Third
Representatives, for the purposes of this Act, shall
be designated by the respective parties without inter-
ference, influence, or coercion by either party over the
‘designation of representatives by the other; and
neither party shall in any way interfere with, in-
fluence, or coerce the other in its choice of representa-
tives. Representatives of employees for the purposes
of this Act need not be persons in the employ of the
carrier, and no carrier shall, by interference, influ-
ence, or coercion seek in any manner to prevent the
designation by its employees as their representatives
of those who or which are not employees of the
carrier.
Section 2 Fourth
45 U.S.C. $152 Fourth
Employees shall have the right to organize and
bargain collectively through representatives of their
75a
own choosing. The majority of any craft or class of
employees shall have the right to determine who shall
be the representative of the craft or class for the
purposes of this Act. No carrier, its officers or agents,
shall deny or in any way question the right of its
employees to join, organize, or assist in organizing
the labor organization of their choice, and it shall be
unlawful for any carrier to interfere in any way
with the organization of its employees, or to use the
funds of the carrier in maintaining or assisting or
contributing to any labor organization, labor rep-
resentative, or other agency of collective bargaining,
or in performing any work therefor, or to influence
or coerce employees in an effort to induce them to
join or remain or not to joint or remain members
of any labor organization or to deduct from the wages
of employees any dues, fees, asessments, or other con-
tributions payable to labor organizations, or to collect
or to assist in the collection of any such dues, fees,
assessments, or other contributions payable to labor
organizations, or to collect or to assist in the collection
of any such dues, fees, asessments, or other contribu-
tions: Provided, That nothing in this Act shall be con-
strued to prohibit a carrier from permitting an em-
ployee, individually, or local representatives of em-
ployees from conferring with management during
working hours without loss of time, or to prohibit a
carrier from furnishing free transportation to its
employees while engaged in the business of a labor
organization.
D. Section 2 Eighth
45 U.S.C. § 152 Eighth
Every carrier shall notify its employees by printed
notices in such form and posted at such times and
places as shall be specified by the Mediation Board
that all disputes between the carrier and its em-
ployees will be handled in accordance with the re-
ee
76a
quirements of this Act, and in such notices there shall
be printed verbatim, in large type, the third, fourth,
and fifth paragraphs of this section. The provisions
of said paragraphs are hereby made a part of the
contract of employment between the carrier and each
employee, and shall be held binding upon the parties,
regardless of any other express or implied agreements
between them.
Section 2 Ninth
45 U.S.C. § 152 Ninth:
If any dispute shall arise among a carrier’s em-
ployees as to who are the representatives of such
employees designated and authorized in accordance
with the requirements of this Act, it shall be the
duty of the Mediation Board, upon request of either
party to the dispute, to investigate such dispute and
to certify to both parties, in writing, within thirty
days after the receipt of the invocation of its serv-
ices, the name or names of the individuals or organi-
zations that have been designated and authorized to
represent the employees involved in the dispute, and
certify the same to the carrier. Upon receipt of such
certification the carrier shall treat with the represen-
tative so certified as the representative of the craft
or class for the purposes of this Act. In such an
investigation, the Mediation Board shall be authorized
to take a secret ballot of the employees involved, or
to utilize any other appropraiate method of ascer-
taining the names of their duly designated and au-
thorized representatives in such manner as shall in-
sure the choice of representatives by the employees
without interference, influence or coercion exercised
by the carrier. In the conduct of any election for the
purposes herein indicated the Board shall designate
who may participate in the election and establish the
rules to govern the election, or may appoint a com-
mittee of three neutral persons who after hearing
77a
shall within ten days designate the employees who
may participate in the election. The Board shall have
access to and have power to make copies of the books
and records of the carrier to obtain and utilize such
information as may be deemed necessary by it to
carry out the purposes and provisions of this para-
graph.
F. Section 6 of the Railway Labor Act
45 U.S.C. § 156:
Carriers and representatives of the employees shall
give at least thirty days’ written notice of an in-
tended change in agreements affecting rates of pay,
rules, or working conditions, and the time and place
for the beginning of conference between the repre-
sentatives of the parties interested in such intended
changes shall be agreed upon within ten days after
the receipt of said notice, and said time shall be
within the thirty days provided in the notice. In every
ease where such notice of intended change has been
given, or conferences are being held with reference
thereto, or the services of the Mediation Board have
been requested by either party, or said Board has
proffered its services, rates of pay, rules, or work-
ing conditions shall not be altered by the carrier
until the controversy has been finally acted upon as
required by section 5 of this Act, by the Mediation
| Board, unless a period of ten days has elapsed after
termination of conferences, without request for or
proffer of the services of the Mediation Board.
dail
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.