Petition — Carbone v. Meserve

pwr

81-36

Olfice-Srereme Court, U.S.

OS Se es oe

JUL8 ‘T98T

No. -.

ALEAANUER L. SBEVAS,

CLERK

In the

Supreme Court of the United States.

Ocroser Term, 1980.

PETER S. CARBONE, CuHamman, GENERAL ADJUSTMENT

ComMITTEE, AND UNITED TRANSPORTATION UNION,

PETITIONERS,

v.

ROBERT W. MESERVE anp BENJAMIN H. LACEY,

TrusTEEs OF Boston & MAINE CorPoRATION,

RESPONDENTS.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the First Circuit.

ALEXANDER E. FINGER,

101 Tremont Street,

Boston, Massachusetts 02108.

(617) 482-7707

JAMEs F.. FREELEY, Jr.,

Joun E. SHEEny,

Feeney & FREELEY,

183 State Street,

Boston, Massachusetts 02109.

(617) 523-5010

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

Questions Presented.

1. Whether a railroad may change an actual, objective

working condition relating to the issuance of job information

and circumvent the procedures prescribed by 45 U.S.C. § 156

for the settlement of a major dispute by frivolously claiming its

action constituted a “minor” dispute because it was “argua-

bly” warranted by a provision in the contract that related to

the transfer of crew dispatchers.

2. Whether a railroad’s change in submitting information

on the availability of extra work for spare board members by

substituting an inadequate reproduction of a spare board by a

telecopying device known as “Rapid fax” in place of a reliable

up-to-date spare board was a unilateral change of conditions

which entitled the Union to the issuance of an injunction.

Table of Contents.

Opinions below

Jurisdiction

Statutory provisions involved

Statement of the case

Reasons for granting the writ

I. The First Circuit’s decision conflicts with a deci-

sion of the Sixth Circuit Court of Appeals as to the

proper interpretation of 45 U.S.C. § 156 5

II. The decision below is not supported by the air-

line stewards case in the First Circuit and cases in

other jurisdictions 9

III. The court should grant certiorari to determine

the question of whether the union is entitled to the

issuance of an injunction ordering the railroad to

Se ee)

maintain the status quo as of April 6, 1979 13

Conclusion 15

Appendices follow page 15

Appendix A — Opinion of the United States Court of

Appeals for the First Circuit la

Appendix B — Opinion of the United States District

Court for the District of Massachusetts 9a

Appendix C — 45 U.S.C. §§ 152 Seventh and 156 17a

Table of Authorities Cited.

CAsEs.

Airlines Stewards & S. Ass’n v. Caribbean Atl. A. Inc.,

412 F.2d 289 (1st Cir. 1969) 7,10

Detroit & Toledo Shore L. R. Co. v. Brotherhood of

Loc. F. & E., 267 F.Supp. 572 (N.D. Ohio 1967),

affd, 401 F.2d 368 (6th Cir. 1968), aff'd, 396 U.S.

142 (1969) 14

ii TABLE OF AUTHORITIES CITED.

Elgin, J. & E. R. Co. v. Burley, 325 U.S. 711 (1945) 5

Local 1477 United Transportation Union v. Baker, 482

F.2d 228 (6th Cir. 1973) 12, 13

Railroad Trainmen v. Terminal Co., 394 U.S. 369

(1969) 6

REA Express, Inc. v. Brotherhood of Railway, Airline,

Etc., 459 F.2d 226 (5th Cir.), cert. denied, 409 U.S.

892 (1972) 7,10

Rutland Railway Corp. v. Brotherhood of Locomotive

Eng., 307 F.2d 21 (2d Cir. 1962), cert. denied, 372

U.S. 954 (1963) 11, 12

Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30 (1957) 6, 15

United Transportation U. v. Burlington Northern,

Inc., 458 F.2d 354 (8th Cir. 1972) 11

United Transport. Union, L. 63E v. Penn Central Co.,

443 F.2d 131 (6th Cir.), cert. denied, 404 U.S. 938

(1971) 8,9

United Transp. U. Gen. Com. of Adj. (Prop. of P. C.

Co.) v. Baker, 499 F.2d 727 (7th Cir.), cert. denied,

419 U.S. 839 (1974) 10, 11

United Trans. Un. v. Penn Central Trans. Co., 505

F.2d 542 (3d Cir. 1974) 12,13

STATUTES.

28 U.S.C. § 1254(1) 1

45 U.S.C.

§§ 151-163 (“Railway Labor Act”) 1,5, 6, 14

§ 152 Seventh 1

§ 153 6, 14

§ 155 14

§ 156 1,5, 13, 14

The petitioners, Peter S. Carbone and United Transporta-

tion Union, respectfully pray that a writ of certiorari issue to

review the judgment and opinion of the United States Court of

Appeals for the First Circuit entered in this proceeding on

April 10, 1981.

Opinions Below.

The opinion of the Court of Appeals, not yet reported, ap-

pears in the Appendix A hereto together with that of the Dis-

trict Court for the District of Massachusetts in Appendix B,

which was reversed by the First Circuit.

Jurisdiction.

The judgment of the Court of Appeals for the First Circuit

was entered on April 10, 1981. This petition for certiorari

was filed within 90 days of that date. This Court’s jurisdiction

is invoked under 28 U.S.C. § 1254(1).

Statutory Provisions Involved.

Sections 152 Seventh and 156 of the “Railway Labor Act,”

are reproduced in Appendix C attached hereto.

Statement of the Case.

Mechanicville, New York was the location of one of the rail-

road terminals or yards maintained by the defendants (Rail-

2

road) for many years and out of which the members of the

United Transportation Union (Union) worked and were

assigned to duty.

Prior to April 6, 1979, the Railroad had assigned one crew

dispatcher per shift to Mechanicville to service a “spare board”

which listed the job vacancies for extra work and irregular

assignments for the Union members operating out of Mechan-

icville.

The men could check the board several times daily and con-

fer with its dispatcher to determine the availability of extra

work — flaggers, yard helpers, trainmen and other positions.

The crew dispatchers maintained job information data on

the Mechanicville board up to date at all times. The “spare

board” was a large piece of paper on which the dispatcher

wrote in by hand the shift, train, and job description of each

spare job and the name of the employee filling it. After an

opening became available, the employee first in line on the

spare board was called for work by the crew dispatcher, but if

another employee with more seniority was aware of the nota-

tion, he could insist upon the appointment. Another terminal

with a similar crew-dispatching facility was located in East

Deerfield, Massachusetts, 100 miles away.

An agreement between the Union and the Railroad was

reached in settlement of a major dispute before the National

Mediation Board, Case No. E-172, on February 11, 1959, con-

cerning the maintenance of crew dispatchers at particular work

locations. The agreement, identified as Itern 21, provided:

Item 21. In disposition of this item, it is understood

crew dispatchers will not be withdrawn from any termi-

nal where employed as of the date of this letter without

consultation in advance with the General Chairman.

This will not apply to changes in or discontinuance of in-

dividual assignments.

3

Eleven years later, by a letter dated November 24, 1970, the

Union and Railroad agreed to a change in Item 21 as follows:

This refers to the settlement of Item 21 in National Me-

diation Board Case No. E-172.

For the future it is understood crew dispatching facili-

ties will not be further merged without prior approval

from this Committee, with the exception of the crew dis-

patching facilities at Ribgy and Westboro, which can be

merged at the Carrier's option with the present crew

dispatching facilities at Mystic Junction.

In other words, the crew dispatching facilities on the

Boston & Maine property would remain as separate facil-

ities, as follows:

Mechanicville

East Deerfield

Passenger Crew Dispatchers at Boston

Mystic Junction Crew Dispatchers.

Another relevaat document in this case was a letter dated

October 3, 1978, from the Railroad to the Union, placing the

subject of consolidating crew-dispatching facilities in media-

tion and which read:

Please consider this letter as the usual and customary thir-

ty (30) day notice under Section 6 of the Railway Labor

Act, as amended, of the Carrier’s desire to change agree-

ments affecting rates of pay, rules, and working condi-

tions to the extent indicated in Attachments “A”, “B” and

“C” hereto.

Accompanying the above letter of October 3, 1978, was a

series of attachments including A-11 which read as follows:

UTU attachment A-11

Establish a rule to provide for:

Eliminating any rule or agreement which imposes any re-

striction on consolidating of crew dispatching facilities.

On April 6, 1980, the Railroad arbitrarily changed working

conditions at Mechanicville, New York by withdrawing the

dispatching crew, and effectively abolished this dispatching

facility, forcing the Union personnel to seek information for

spare board assignments at East Deerfield, Massachusetts.

After April 6, 1979, the railroad substituted a telecopying

machine known as “Rapid fax” which reproduced a spare

board maintained in East Deerfield and forwarded to Me-

chanicville. ‘The Mechanicville spare board members who

lived in the vicinity could check the telecopy and the Railroad

also provided three toll-free WATS lines allowing employees

to call free from their homes to East Deerfield. The spare

board members found the substituted facility inadequate as

compared to the former spare board.

Although the “Rapid fax” machine was scheduled to reflect

job openings three times a day, copies were often late in arriv-

ing, undecipherable and difficult to analyze. Without the

presence of a crew dispatcher who entered the notation on the

spare board, it was difficult to comprehend it, and the Rail-

road was advised of these deficiencies.

In addition, the WATS lines were generally undependable

and the men found that they were unable to protect their

rights and gain the extra compensation which they formerly

received.

The Railroad withdrew the merger proposal, attachment

A-11, from the Mediation Board on August 27, 1979. The

Union was not told of the withdrawal until advised by a Medi-

ator on September 25, 1979. The next day, UTU Local 470

5

Union members voted favorably for a strike. On Novem-

ber 30, 1979, the Union sought an injunction against the Rail-

road for implementing and proceeding with the withdrawal of

the dispatchers on April 6, 1979, merging the Mechanicville

facility with East Deerfield, and replacing the spare board

with the telecopying machine and WATS lines. The District

Court issued an order of a preliminary injunction. It found,

after two hearings, February 29, 1980 and March 5, 1980,

that a major dispute existed and that the Railroad had

changed the rules and working conditions of its employees as

embodied in an agreement dated November 24, 1970, without

resort to available procedures mandated by 45 U.S.C. § 156.

The First Circuit Court of Appeals, by decision entered

April 10, 1981, found: that the dispute was “minor” not “ma-

jor”; and that there may have been a violation of the contract

but that the dispute was a question of contract interpretation

and outside the Court’s jurisdiction. The District Court’s

award of an injunction was reversed and remanded for vaca-

tion of the injunction.

Reasons for Granting the Writ.

I. Tue First Circurtr’s Decision CONFLICTS WITH A DECISION

OF THE SixtH Circurr Court oF APPEALS AS TO THE PROPER

INTERPRETATION OF 45 U.S.C. § 156.

The principal issue is whether the dispute between the par-

ties was “major” or “minor” under the Railway Labor Act, 45

U.S.C. §§ 151-163 (see Appendix C). The statute does not use

the words which are used to distinguish mutually exclusive

procedures mandated for resolving two different kinds of dis-

putes. The Court in Elgin, J. & E. R. Co. v. Burley, 325 U.S.

6

711 (1945), described and explained the distinction between

major and minor disputes. The Courts stated that the major

disputes relate to disputes over the formation of collective

agreements or efforts to secure them, and that they look to the

acquisition of rights for the future, not to assertion of rights

claimed to have been vested in the past. With reference to the

minor dispute, it said it contemplated the existence of a collec-

tive agreement already concluded, or the interpretation and

application of an existing one, and that these disputes relate

either to the meaning or proper application of a particular

provision with reference to a specific situation or to an omitted

case.

Disputes involving contract interpretation are to be handled

under 45 U.S.C. § 153, which provides that either party may

submit the dispute to the appropriate Adjustment Board for a

final and binding decision of the meaning of the contract. A

strike over disputes properly submitted to the Adjustment

Board may be enjoined in order to protect the Board's jurisdic-

tion. Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30

(1957). ,'

The Railway Labor Act provides a mandatory program in-

voking the services of the National Mediation Board to facili-

tate voluntary settlement of major disputes which was de-

scribed by the Supreme Court in Railroad Trainmen v. Ter-

minal Co., 394 U.S. 369, 378 (1969).

The Union contended in this case, and the District Court

found, that the Railroad’s action in substituting a new method

of formulating extra work information for union workers,

which was a reproduction of a spare board by a telecopier and

WATS lines in place of a spare board at Mechanicville, was a

unilateral action without any basis in the contract. The Rail-

road asserted that its action was justified based on the 1959

agreement. The First Circuit held that if it is ever “arguable”

that the 1959 agreement was applicable, then it was a minor

7

dispute, citing REA Express, Inc. v. Brotherhood of Railway,

Airline, Etc., 459 F.2d 226 (5th Cir.), cert. denied, 409 U.S.

892 (1972) and Airlines Stewards & S. Ass'n v. Caribbean Atl.

A. Inc., 412 F.2d 289 (1st Cir. 1969).

In deciding that the dispute was minor, thereby upholding

the contention of the Railroad, the First Circuit found that it

was “arguable” that the Railroad had authority in the 1959

agreement even if the 1959 agreement spoke in terms of “crew

dispatchers” (Appendix A, p. 6a).

The First Circuit further stated (Appendix A, pp. 6a-7a):

We think it at least arguable that the 1970 substitution of

“facilities” for “dispatchers” was a liberalization in return

for the union’s receiving a right of approval rather than,

as under the 1959 agreement, of consultation, only, prior

to any merger. Furthermore, the record indicates that

the union’s real concern was ready (“facile”) access to in-

formation, and not the physical location of the individ-

uals who generated it.

In view of the above, it may be that the First Circuit

misconceived the question to be one of an argument over the

withdrawal of crew dispatchers from Mechanicville rather

than what it admitted the record to indicate, the Union’s con-

cern over ready access to job information for spare board

members. There is no language in the several documents cited

in the record, Item 21 of February 11, 1959, the letter of No-

vember 24, 1970, or the § 6 notice of October 3, 1978 that

dealt with the under!ying dispute of accurate and up-to-date

extra job data. In concluding that the Railroad “arguably”

was empowered by the 1959 agreement to withdraw dispatch-

ers on April 6, 1979, it failed to find any language using the

terms “spare board,” “telecopier,” “telefax,” “WATS Line” or

other words relating to furnishing job information.

8

This case is nearly identical to the Penn Central case in the

6th Circuit upholding a lower court finding of a “major” dis-

pute and the issuance of an injunction against the Railroad

which unilaterally changed from “crew boards” to the issu-

ance of “print outs,” the means of advising Railroad employees

of their work schedules. United Transport. Union, L. 63E v.

Penn Central Co., 443 F.2d 131 (6th Cir.), cert. denied, 404

U.S. 938 (1971).

The “crew boards” in the Penn Central case, consisting of a

large peg board and colored pegs as a means of keeping em-

ployees advised of the present and upcoming work schedule,

were comparable to the spare board in this case.

The change in the mode of transmitting work schedule in-

formation was described by the 6th Circuit in part as follows:

These board served to inform workers at a brief glance

when they would be called for work, what their order

was, what openings were available and when. The com-

pany decided to alter this operation and move it to a cen-

tral office (six miles away and not accessible to employ-

ees). There employing a board of a very similar nature

(but employing colored cards in place of pegs) a scheduler

would plot any crew changes and feed the information

into acomputer. The company then posted “print outs”

drawn from the computer three times a day. The print

outs are typewritten 8’’ x 14’’ pieces of paper. Usually

six or eight pages were posted at one time.

443 F.2d at 133.

The 6th Circuit further found certain matters of back-

ground which bore heavily on the determination of the dispute

— that the union members never relied exclusively upon the

crew boards for information but were accustomed to calling

9

the dispatchers; that the print outs were often invalid and in-

accurate as a source of information at the exact moment of

posting; and that the posting of the printouts three times a day

was not equivalent to the maintenance of the crew board. 443

F.2d at 135.

The actual, objective working condition, that of receipt of

job data, was not referred to in the 1959 agreement although it

could be a factor and bear on the determination of the dispute.

Since the contract is silent with respect to the existence of a

spare board or the Rapid fax or any other means of communi-

cating spare board information to the members who used it for

work assignments, the Railroad therefore cannot claim that its

actions were “arguably” warranted by the contract, and there-

fore the First Circuit erred in finding that the Railroad’s con-

tractual defense based on the 1959 agreement was not insub-

stantial or frivolous.

Assuming that the Railroad claims that if it could remove

crew dispatchers from Mechanicville under the 1959 provi-

sion, its obligation to continue to provide the same up-to-date

and accurate job information to spare board members contin-

ued. Inasmuch as different conclusions developed between

the First and Sixth Circuits from similar circumstances, the

conflict justifies the grant of certiorari.

II. THe Decision BELOw 1s Nor SuPpPORTED BY THE AIRLINE

STewarps CASE IN THE First Cirncurr AND Cases IN OTHER

JURISDICTIONS.

In reaching its decision in the case below, the First Circuit

relied on several cases in other circuits that found the disputes

to be minor with those courts, after review determined that

the railroad contractual defenses were not frivolous. The

Union argues that those cases are not applicable to this case.

10

The main distinction is that the First Circuit is relying upon a

1959 agreement which does not encompass language which

dealt with the means of informing the Union members of the

availability of work on the spare board. The First Circuit

relied upon Airlines Stewards & S. Ass’n v. Caribbean Atl. A.

Inc., 412 F.2d 289 (1st Cir. 1969). That case involved the in-

terpretation of the Flight Stewardesses Scheduling Policy

Manual which included a provision (par. 4.G.) that related to

the acceptance of assignments for open time flights. Prior to

September 9, 1968, the open time airline flights were offered

to stewardesses on an individual basis and the change was

made by the airline to require the stewardesses to take all

flights or none at all. 412 F.2d at 290.

Paragraph 4.G. contained details relative to “open time”

flights, requiring an interpretation, but in the case at bar there

is no similar covenant or provision that relates to the making of

job information available to the spare board members.

The First Circuit also cited REA Express, Inc. v. Brother-

hood of Railway, Airline, Etc., 459 F.2d 226 (5th Cir.), cert.

denied, 409 U.S. 892 (1972). In that case, the 5th Circuit

found that the changes that were introduced by the Railroad

in its trucking operations included changes in pay basis, hours

of service, layovers, domicile and seniority rights, which were

covered by provisions in existing bargaining agreements. It

was provided in part in the agreement that “special provisions

[will] be established governing hours of service, overtime, and

basis of pay of over-the-road truck runs.” 459 F.2d at 227.

No comparable language appears in the agreement at issue

here.

In the case of United Transp. U. Gen. Com. of Adj. (Prop. of

P. C. Co.) v. Baker, 499 F.2d 727 (7th Cir.), cert. denied, 419

U.S. 839 (1974) (Appendix A, p. 7a), the 7th Circuit held that the

Railroad's substitution print outs for the prior system of crew

calling was in compliance with the parties’ collective bargaining

ll

agreement and gave rise to a “minor” dispute. 499 F.2d at

729. Section 8-B-1 of that agreement provided that “[c]rew

boards showing the order in which the crews are to go out shall

be maintained.” 499 F.2d at 730. The Railroad replaced the

crew board in book form with print out sheets and the union

objected. In contrast, the First Circuit did not interpret a

similar provision mandating the maintenance of a communi-

cations system or “spare boards” at Mechanicville, but only

the 1959 provision relating to the withdrawal of crew dis-

patchers. Accordingly, the Union contended that the refer-

ence to the Baker case does not support the First Circuit judg-

ment in this case.

An 8th Circuit case cited by the First Circuit (Appendix A,

p. 5a), United Transportation U. v. Burlington Northern,

Inc., 458 F.2d 354 (8th Cir. 1972), brought up the question

whether the Railroad could alter assignments for firemen as-

signed to diesel engines to allow use of firemen only on runs

and schedules in order to comply with Wisconsin law. The

Court found the issue was a “minor” dispute as the provision

was susceptible to the interpretation sought by both. The

Court noted that the parties were disputing covenants con-

tained in Arbitration Board Award No. 282 64-1 Arb., which

dealt with the subject of the termination of the services of

firemen with severance pay. 458 F.2d at 355.

Rutland Railway Corp. v. Brotherhood of Locomotive

Eng., 307 F.2d 21 (2d Cir. 1962), cert. denied, 372 U.S. 954

(1963) involved a disagreement over the rescheduling of trains

without renegotiating them with the union. The Court, in

finding the dispute was “minor” and that it arose out of a dif-

ference in interpretation of the contract, referred to provisions

that supported the Railroad’s contention. One provision, Ar-

ticle 39(e) of the agreement with the Order of Railway Con-

ductors and the Brotherhood of Railroad Trainmen, referred

to the posting of new and vacant runs on the division and the

12

assignment of these runs to bidders. Another such provision

was language in Article XXXVII (a) in the Railroad’s agree-

ment with the Brotherhood of Locomotive Engineers, essen-

tially the same as the provisions above and Article 39(e) with

the Conductors and Trainmen, which referred and related to

the establishment and bulletining of new runs. 307 F.2d at

35. There are no such provisions in this case dealing with the

change over from a spare board to the telecopying system and

WATS lines.

United Trans. Un. v. Penn Central Trans. Co., 505 F.2d

542, 544 (3d Cir. 1974), held that the Railroad’s position that

the existing contract sanctioned a disputed change was not ob-

viously insubstantial. The change that was effected by the

Railroad was the elimination of certain work assignments for

its employees which would make overtime work the norm

rather than the exception for the workers. 505 F.2d at 543.

In concluding that the disputed action of the Railroad can

“arguably” be justified by the existing agreement, the Court

quoted several provisions of the national agreement which

were set out in Note 4, page 544. For example, among other

rules, the Court quoted Rule 8(3) in referring to the payment

of employees working more than five straight time eight-hour

shifts and Rule 5L-1 relating to eight hours of work for yard

trainmen,

Another Circuit Court decision which concluded the dis-

agreement between the parties led to a “minor” dispute was

Local 1477 United Transportation Union v. Baker, 482 F.2d

228 (6th Cir. 1973), that dealt with the power of the Railroad

to discipline employees who absented themselves from work

frequently. The Court found that the document did not

unambiguously answer the disputed question, and held the

dispute to be “minor.”

It noted that the Railroad referred to several rules regulat-

ing the privilege of lay-off as long as a qualified replacement is

13

available, that the work time it agreed to provide is inferen-

tially the normal work week, and that the rules require “faith-

ful discharge of duty” and prohibit absences from duty “with-

out proper authority”. It rules that the inferences to be drawn

from the documents and past practice “are ‘arguable’ and can-

not fairly be characterized as clearly unreasonable or ‘obvious-

ly insubstantial’”. 482 F.2d at 231.

The Union contends in the case at bar that the First Circuit’s

decision raises a significant and recurring controversy concern-

ing the right of the Union to seek relief under 45 U.S.C. § 156.

It is maintained that the First Circuit’s reasoning is difficult to

reconcile with that of the Sixth Circuit in the Penn Central

case on the similar facts.

The Union also urges that the Railroad’s attempt to seek to

avoid terming the dispute “major” because its defense is based

on its interpretation of the 1959 provision in the contract

should be allowed only if there is a reference in such a provi-

sion to the issue (the furnishing of spare board data to Union

members), and it is asserted that the absence of such a refer-

ence raises a doubt as to the validity of its defense. These con-

flicts justify the grant of certiorari to review the judgment of

the First Circuit.

III. THe Court sHouLp Grant CERTIORARI TO DETERMINE THE

QUESTION OF WHETHER THE UNION Is ENTITLED TO THE Issu-

ANCE OF AN INJUNCTION ORDERING THE RAILROAD TO MAIN-

TAIN THE StaTus Quo As or Aprit 6, 1979.

The Union is entitled to the issuance of an injunction to

maintain as the status quo the actual, objective working condi-

tions relating to the means of making job opportunities data

and information available to spare board members, out of

which the dispute arose, irrespective of whether these condi-

14

tions are covered in an existing collective agreement. Detroit

¢> Toledo Shore L. R. Co. v. Brotherhood of Loc. F. & E., 267

F.Supp. 572 (N.D. Ohio 1967), aff'd, 401 F.2d 368 (6th Cir.

1968), aff'd, 396 U.S. 142 (1969).

The Union contends it is also entitled to the issuance of an

injunction for another reason. The Railroad violated the

terms of § 156 that provide that in every case where a § 6

notice of an intended change has been given, or conferences

held, or the services of the Mediation Board requested, work-

ing conditions shall not be altered by the Carrier until the con-

troversy has been acted upon as required by § 155 by the

Mediation Board.

By letter dated October 6, 1978, the Railroad placed in

mediation the item relating to the establishment of a rule to

eliminate any restriction on the consolidation of crew

dispatching facilities. The Union contends that the Railroad

clearly violated § 156 by unilateral and arbitrary action on

April 6, 1979 changing an actual, objective working condition

while mediation was in progress. The status quo is to be main-

tained pursuant to § 156 of 45 U.S.C., while the procedures of

the Railway Labor Act are being exhausted. Assuming there

is a “minor” dispute over the question of interpretation of the

1959 agreement referring to withdrawal of crew dispatchers,

the Union says that the status quo prior to April 6, 1979 may

be maintained by the issuance of an injunction against the

Railroad until adjustment under 45 U.S.C. § 153 and other

processes shall have been completed.

The Union’s losses were likewise made evident in the case at

bar. Evidence was given and the District Court judge found

that the members of the Union whose names were listed on the

spare board at Mechanicville were unable, after April 6, 1979,

to fully protect their contract rights to extra work and addi-

tional income. Accordingly, to the extent that it was neces-

sary to show irreparable harm and the likelihood of success,

the Union met that burden (Appendix B, pp. 14a, 15a, 16a).

15

The First Circuit did not disturb the finding by the District

Court that after April 6, 1979 there was no longer a “crew dis-

patching facility” at Mechanicville since no crew dispatching

was done there (Appendix A, p. 6a), or deny that the Union

members suffered harm and damage after that date.

The Union claims that the record shows that its members

have suffered irreparable harm and the Court has jurisdiction

to grant equitable relief pending an Adjustment Board deci-

sion. Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30 (1957)

(Appendix B, pp. 14a, 15a, 16a).

Conclusion.

For these reasons, a writ of certiorari should issue to review

the judgment and opinion of the First Circuit.

Respectfully submitted,

ALEXANDER E. FINGER,

101 Tremont Street,

Boston, Massachusetts 02108.

(617) 482-7707

JAMES F. FREELEY, JR.,

JOHN E. SHEEHY,

FEENEY & FREELEY,

183 State Street,

Boston, Massachusetts 02109.

(617) 523-5010

la

United States Court of Appeals

For the First Circuit.

No. 80-1754

PETER S. CARBONE et al.,

PLAINTIFFS, APPELLEES,

v.

ROBERT W. MESERVE et al.,

DEFENDANTS, APPELLANTS.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

{[Hon. W. Arruur Ganarry, Jr., U.S. District Judge]

Before

ALDRICH AND WinTeER,* Circuit Judges,

Wyzanski,** District Judge.

William F. Sheehan, with whom Sidney Weinberg, Ralph

J. Moore, Jr., Patrick M. Hanlon, and Shea & Gardner were

on brief, for appellants.

James F. Freeley, Jr., with whom John E. Sheehy, and

Feeney & Freeley were on brief, for appellees.

April 10, 1981

Aupricu, Senior Circuit Judge. On April 6, 1979 the

Trustees of Boston and Maine Corporation, Debtor (herein-

* Of the Fourth Circuit, sitting by designation.

** Of the District of Massachusetts, sitting by designation.

2a

after the railroad) withdrew a complement of crew dispatch-

ers then located at the railroad’s Mechanicville, New York ter-

minal. These dispatchers had maintained a “spare board,” a

sheet that listed openings for irregular assignments, and the

employees in line for those openings. The withdrawn dis-

patchers were consolidated with a dispatching crew in East

Deerfield, Massachusetts, thus reducing the total number, at a

considerable saving. There they produced a Mechanicville

spare board, which was reproduced at Mechanicville by a

telecopying device known as Rapifax. Most Mechanicville

spare board members live in the vicinity, but three WATS

lines were also supplied, enabling employees to reach their

crew dispatcher in East Deerfield by telephone, toll free, from

their homes, or anywhere in New York or New England.

Claiming that this changeover constituted a breach of its col-

lective bargaining agreement, and a “major” dispute, the

United Transportation Union! instituted the present action

and, in due course, obtained a preliminary injunction requir-

ing the railroad to reestablish the crew dispatchers at the

Mechanicville terminal. In connection with the railroad’s ap-

peal we granted its motion for a stay of the injunction. We

now reverse, and order the injunction dissolved.

Spare board members are railroad employees who have no

regular crew assignments, or who seek work on their days off.

Assignments are made on a rotation basis, with employees who

have worked most recently being placed at the bottom of the

list, to progress upward as assignments are filled, subject to

certain seniority rights. If an employee at the top of the list

cannot be reached within a reasonable time he is penalized by

being taken off the list for 16 hours and then placed at the

‘Plaintiffs are the Chairman, the General Adjustment Committee, and

various members. The dispatchers themselves are not members of the union,

and are not parties to this action.

3a

bottom. Hence it is important for employees to be kept in-

formed at all times. It also appears that mistakes are made,

and that employees must be able to make inquiries and see to

it, if there are mistakes, that they are corrected.

The basis for this case begins with the railroad’s letter of

February 11, 1959, written as the result of a settlement of a

“major” dispute,* containing the following.

“ITEM 21

“In disposition of this item, it is understood Crew Dis-

patchers will not be withdrawn from any terminal where

employed as of the date of this letter without consultation

in advance with the General Chairman. This will not

apply to changes in or discontinuance of individual as-

signments.”

By letter dated November 24, 1970, the parties made a further

agreement.

“This refers to the settlement of Item 21 in National

Mediation Board Case No. E-172.

“For the future it is understood crew dispatching fa-

cilities will not be further merged without prior approval

from [the union’s General Committee on Adjustment],

with the exception of the crew disptaching facilities at

Rigby and Westboro, which can be merged at the Car-

rier’s option with the present crew dispatching facilities

at Mystic Junction.

“In other words, the crew dispatching facilities on the

Boston and Maine property would remain as separate

facilities, as follows.

* National Mediation Board Case No. E-172.

4a

Mechanicville

East Deerfield

Passenger Crew Dispatchers at Boston

Mystic Junction Crew Dispatchers.”

Following the dispatchers’ withdrawal on April 6, 1979, the

parties being unable to come to terms, the union brought this

suit, and on March 5, 1980, at the conclusion of a hearing, the

court announced its intention from the bench to grant the in-

junction.? The railroad moved for reconsideration, and that it

be allowed to substitute a video spare board to meet certain

criticisms that had been advanced against the telecopier. This

motion was denied, and in due course the preliminary injunc-

tion was entered.

The initial, and dispositive, question is jurisdictional. The

Railway Labor Act, 45 U.S.C. §§ 151 et seq., divides disputes

into two classes. A “major” dispute relates to the formation or

modification of the collective agreement — “the acquisition of

rights for the future,” Elgin, J. & E. Ry. v. Burley, 1945, 325

U.S. 711, 723 — and falls under section 6 of the Act. 45

U.S.C. § 156; see generally Brotherhood of Railroad Train-

men v. Jacksonville Terminal Co., 1969, 394 U.S. 369, 378. A

district court may enjoin either party from altering the status

quo during the course of the proceedings, with no showing of

irreparable harm. Detroit & Toledo Shore Line RR. v. United

Transportation Union, 1969, 396 U.S. 142; United Transpor-

tation Union v. Burlington Northern, Inc., 8 Cir., 1972, 458

F.2d 354, 357.

? The actual order was to be subject to a hearing as to the amount of the

bond. The court subsequently set the admittedly “nominal” figure of $1,000

because of the union’s lack of funds. Our stay of the injunction and decision

herein moot the railroad’s appeal on this issue.

5a

A “minor” dispute, on the other hand, contemplates and ex-

isting agreement, and relates “to the meaning or proper ap-

plication of a particular provision with reference to a specific

situation or to an omitted case.” Elgin, J. & E. Ry., ante, 325

U.S. at 723. Such are entrusted exclusively to arbitration by

the National Railroad Adjustment Board at the option of

either party, or by system, group or regional board with the

consent of both. 45 U.S.C. § 153. No injunction may issue

without the traditional showing of irreparable harm. Order of

Railway Conductors v. Pitney, 1946, 326 U.S. 561, 567;

United Transportation Union v. Burlington Northern, Inc.,

ante, 458 F.2d at 357.

The question, accordingly, is whether the withdrawal of the

Mechanicville dispatchers was, as the union contends, a

“unilateral action . . . without any basis in the contract,” or,

as the railroad asserts, an action warranted by the contract. If

it is even “arguable” that it was the latter, see REA Express,

Inc. v. Brotherhood of Railway, Airline etc. Employees, 5

Cir., 1972, 459 F.2d 226, 231, cert. denied, 409 U.S. 892, it is

a “minor” dispute.

“If the railroad took action which it admitted was not in

conformity with the existing agreement there would be

no question that a ‘major dispute’ was involved; and the

same result necessarily obtains where the railroad’s

claimed justification is without any reasonable basis in

the contract. But we think that, where the railroad

asserts a defense based on the terms of the existing collec-

tive bargaining agreement, the controversy may not be

termed a ‘major’ dispute unless the claimed defense is so

obviously insubstantial as to warrant the inference that it

is raised with intent to circumvent the procedures pre-

scribed by § 6 for alteration of existing agreements.” Air-

lines Stewards & Stewardesses Ass'n v. Caribbean Atlan-

6a

tic Airlines, Inc., 1 Cir., 1969, 412 F.2d 289, 291 (cita-

tion omitted), quoting Southern Ry. v. Brotherhood of

Locomotive Firemen, D.C. Cir., 1967, 384 F.2d 323,

327.

The initial difficulty, as it later conceded, was that the court

made its March 5 ruling without reference to the Airlines

Stewards limitation on its power of resolution. The railroad

contended that whereas the 1959 agreement spoke in terms of

withdrawal of “Crew Dispatchers” while the 1970 agreement

referred to the merger of “crew dispatching facilities” and the

maintenance of a separate “facility” at Mechanicville, the dif-

ference in terms signified a difference in meaning. The court's

response, in part, relied on its conclusion that the 1959 agree-

ment’s provision for “consultation” (only) was of no value to

the union. This, however, was a provision that was bargained

for; it was not for the court to assume expertise and declare it

worthless.

Although at a later date the court recognized the proper

standard, we consider that it continued to violate it when it

failed to attribute any consequences to the changes in ter-

minology between the 1959 and the 1970 agreements. It said,

“Put quite simply, there is no longer a ‘crew dispatch-

ing facility’ at Mechanicville since no crew dispatching is

done there. . . . The ‘dispatching’ is in fact done at East

Deerfield... .”

We think it at least arguable that the 1970 substitution of

“facilities” for “dispatchers” was a liberalization in return for

the union’s receiving a right of approval rather than, as under

the 1959 agreement, of consultation, only, prior to any merger.

7a

Furthermore, the record indicates that the union's real con-

cern was ready (“facile”) access to information, and not the

physical location of the individuals who generated it.

This would be the end of the matter, but for the union's

complaint as to the facility's defects. It is true that an opera-

tion might be so totaily deficient that it could not be described

as a facility at all. The union's evidence showed certain ineffi-

ciencies and inadequacies in the operation of the Rapifax, and

that there were delays and the emp!oyees were not always well

served by the WATS lines. With respect to the former, the

railroad offered to substitute a video device which would keep

the information more current, and more legible. The union

expressed dissatisfaction, and its position was upheld by the

court.

We have two comments. The first is that mere operational

defects, as distinguished from deliberate nonfeasance, do not

indicate an “intent to circumvent the procedures prescribed by

§ 6 for alteration of existing agreements.” Airlines Stewards,

ante. The second is that operational defects normally are

remediable as time goes on. The union's refusal even to give

the railroad an opportunity to make improvements is incon-

sistent with what we consider to be the entire intendment of

the Act, namely, to have matters resolved at the adjustment

level if possible. We view the defects in the facility in the

same light as we regard the larger issue, the physical location

of the dispatchers. Accord, United Transportation Union v.

Baker, 7 Cir., 1974, 499 F.2d 727, 731, cert. denied, 419 U.S.

839, where the court criticized the court in United Transporta-

tion Union v. Penn Central Co., 6 Cir., 1971, 443 F.2d 131,

cert. denied, 404 U.S. 938 for making such factual determina-

tions as being contrary to the rule we had embraced in Airlines

Stewards, Courts should be the last, rather than the first,

resort, particularly so if circumventing the Adjustment Board

can bring preliminary relief at little attendant risk. See n.3,

ante.

8a

In sum, there may be a violation of the con‘ract, but this is a

question of interpretation, and as such is outside of our juris-

diction. Were it otherwise, “the arbitration machinery man-

dated by the Railway Labor Act [would] be dealt a crippling

blow.” Airlines Stewards, ante, 412 F.2d at 291.

One other point merits comment. The railroad, by a sec-

tion 6 notice dated October 6, 1978, placed in mediation the

following item (among many).

“Establish a rule for:

Eliminating any rule or agreement which imposes any re-

striction on consolidation of crew dispatching facilities.”

The union contends, and the court found, that this item was

withdrawn on August 17, 1979, after removal of the Mechan-

icville dispatchers.‘ We can see no adverse inference to be

drawn from this. Whatever may be the case when the issues

are the same, see United Transportation Union v. Illinois Ter-

minal Ry., 7 Cir., 1972, 471 F.2d 375, 377-79, elimination of

the rule, and determination of what is permissible thereunder,

are two quite different matters. Cf. Hilbert v. Pennsylvania

RR., 7 Cir., 1961, 290 F.2d 881, 885, cert. denied, 368 U.S.

900.

Reversed and remanded for vacation of the injunction.

*The railroad disputes this. In fact, we find it irrelevant, but we observe

for the future that a matter so easily verifiable as this should have been

cleared up well before the case reached us.

9a

Appendix B.

Peter CARBONE et al., Plaintiffs,

v

Robert W. MESERVE et al., Defendants.

Civ. A. No. 79-2386-G.

United States District Court,

D. Massachusetts.

Oct. 17, 1980.

In action brought by a transportation union to enjoin a rail-

road from unilaterally merging crew-dispatching facilities, the

District Court, Garrity, J., held that under evidence, em-

ployer had merged crew-dispatching facilities in violation of

agreement and had thus made unilateral change in working

conditions, prohibited by Railway Labor Act, and such con-

tested action of employer involved major dispute as to which

court would issue injunction to restore status quo, employer's

installation of “rapifax” machine being altogether inadequate

substitute for presence of crew dispatchers and official T-147

spare board.

Preliminary injunctive relief granted.

Labor Relations 416.4

Under evidence, employer had merged crew-dispatching

facilities in violation of agreement and had thus made unilat-

eral change in working conditions prohibited by Railway

Labor Act, and such contested action of employer involved

major dispute as to which court would issue injunction to

restore status quo, employer's installation of “rapifax” machine

10a

being altogether inadequate substitute for presence of crew

dispatchers and official T-147 spare board. Railway Labor

Act, §§ 2, subds. 1, 2, 7, 6, 45 U.S.C.A. §§ 152, subds. 1, 2, 7,

156.

James F. Freeley, Jr., Feeney & Freeley, Boston, Mass., for

plaintiffs.

Sidney Weinberg, Boston, Mass., for defendants.

FURTHER FINDINGS AND CONCLUSIONS

SUPPORTING ORDER FOR

PRELIMINARY INJUNCTION

GARRITY, District Judge.

This action was brought by the plaintiff United Transporta-

tion Union (UTU) to enjoin the defendant Boston and Main

Corporation (B & M) from unilaterally merging its crew dis-

patching facility at Mechanicville, New York, into the facility

of East Deerfield, Massachusetts, in violation of the Railway

Labor Act, 45 U.S.C. § 152 Seventh (1976). Plaintiff's ap-

plication for a temporary restraining order was denied on No-

vember 30, 1979. Hearings were held on plaintiff’s motion for

a preliminary injunction on February 29 and March 5, 1980,

after which the court found that the defendant, B & M, had

changed the rules and working conditions of its employees as

embodied in an agreement dated November 24, 1970, without

resort to the procedures mandated by 45 U.S.C. § 156 (1976).

The court’s order entered March 5 was predicated on its find-

lla

ings and conclusions stated in open court at the conclusion of

the hearing, including a ruling that a “major dispute” existed

under the Railway Labor Act. The court denied B & M’s mo-

tion to dismiss, and ordered a preliminary injunction to restore

the status quo at the Mechanicville facility as it functioned on

April 6, 1979. The injunction was conditioned on the parties’

submission of written briefs and affidavits on the issue of the

necessity and amount of bond under Rule 65(c) ,"Fed.R.Civ.P.

On April 4, 1980 the court ordered that plaintiffs post bond in

the amount of $1,000; a bond in this amount was filed on July

10, and approved July 11, 1°80. We withheld entry of the

order, however, pending a further hearing on September 23,

1980 of defendants’ motions to amend the decree and to recon-

sider our denial of their motion to dismiss. We now reaffirm

our previous rulings and, for the reasons set forth below, order

entry of a preliminary injunction in favor of plaintiffs, and

deny defendants’ renewed motion to dismiss and motion to

amend the injunctive decree.

The present dispute arose out of B & M’s action on April 6,

1979, removing the crew dispatchers and “crew board” from

the railroad’s facility at Mechanicville, New York, to the facili-

ty at East Deerfield, Massachusetts. UTU claims that this ac-

tion of B & M was taken in plain violation of longstanding

agreements between the parties. Specifically an agreement

between UTU and B & M was reached in settlement of a “ma-

jor dispute” before the National Mediation Board, Case No.

E-172, on February 11, 1959, concerning the maintenance of

crew dispatching facilities at particular work locations, iden-

tified as “Item 21.” It provided:

Item 21. In disposition of this item, it is understood

Crew Dispatchers will not be withdrawn from any ter-

minal where employed as of the date of this letter without

consultation in advance with the General Chairman.

12a

This wil! not apply to changes in or discontinuance of in-

dividual assignments.

Eleven years later, in a letter of agreement dated November

24, 1970, the former General Chairman of the UTU, J. L.

Scanlan, and the former Assistant Director-Labor Relations

for B & M, D. F. Ellingwood, modified Item 21 as follows:

This refers to the settlement of Item 21 in National

Mediation Board Case Number E-172.

For the future it is understood crew dispatching facilities

will not be further merged without prior approval from this

Committee, with the exception of the crew dispatching

facilities at Rigby and Westboro, which can be merged at the

Carrier’s option with the present crew dispatching facilities at

Mystic Junction.

In other words, the crew dispatching facilities on the Boston

and Maine property would remain as separate facilities, as

follows:

Mechanicville

East Deerfield

Passenger Crew Dispatchers at Boston

Mystic Junction Crew Dispatchers

Subsequent to this agreement, B & M merged the Westboro

crew dispatchers with the East Deerfield crew dispatchers and

likewise Rigby with Mystic Junction in Somerville, Massachu-

setts, in accordance with the carrier’s option under this agree-

ment.

13a

On December 3, 1976 B & M notified the UTU by letter of

its desire to effect a “Consolidation and Combining of Crew

Dispatchers Positions and Work” under the informal settle-

ment procedures outlined in the Act, 45 U.S.C. § 152 First

and Second (1976), and recognized that Item 21 and the No-

vembe: 24, 1970 agreement controlled the matter. UTU re-

sponded on December 10 that any proposed merger of crew

dispatchers created a major dispute under Section 6 of the Act.

B & M replied by letter dated December 16, 1976 that “If we

are still unsuccessful in our attempt to secure your Organiza-

tion’s approval of this merger, we, of course, may have to

resort to the provisions of Section 6 of the Act or some other

legal avenue to effect the desired changes.”

On January 3, 1977 the UTU sent B & M, as well as other

railroads, a Section 6 notice of intended changes in the existing

agreement affecting rates of pay, rules and working condi-

tions. As part of the general discussion that ensued from the

UTU’s Section 6 notice, B & M countered with its own Section

6 notice on October 3, 1978, and attached its own proposed

changes in the existing agreement. One of those changes was

“Attachment A-11”, which proposed to: “Establish a rule to

provide for: Eliminating any rule or agreement which im-

poses any restriction on consolidating of crew dispatching

facilities.” Discussion of the proposed changes, including the

proposed elimination of the November 24, 1970 agreement,

continued between B & M and UTU through March of 1979.

On April 6, 1979, however, B & M moved the crew dis-

patchers from Mechanicville, New York, to East Deerfield

without the approval of the UTU. Four crew dispatchers had

been employed at the Mechanicville facility on a 24-hour

basis. These dispatchers assigned work to employees of B & M

residing in the Mechanicville area in accordance with rules

regarding seniority rights and other standards. The crew dis-

patchers also serviced the “spare board” for the Mechanicville

l4a

area, T-147, which lists jobs and job vacancies on an up-to-

the-minute basis. The current spare board at Mechanicville

was always available for inspection by UTU Local 470 mem-

bers, as well as the spare boards for the day before and the next

day. The local UTU members constantly relied upon a per-

sonal relationship with the dispatchers and upon the currency

and accuracy of the spare board to ascertain the availability of

work, to protect their seniority rights, and to avoid penalties

for the failure to accept a work assignment within one hour of

the scheduled job.

In place of the crew dispatchers removed from Mechanic-

ville, the B & M opened a toll free telephone number to the

crew dispatching facility at East Deerfield, where the T-147

spare board for Mechanicville had been relocated. About one

week after April 6, B & M installed a “Rapifax” telecopying

machine at Mechanicville. This machine duplicated the ac-

tual handwriting of the crew dispatchers at East Deerfield,

and was scheduled to reproduce the spare board at Mechanic-

ville three to four times a day. However, numerous problems

have arisen under the new system installed by the B & M, in-

cluding frequent difficulty reaching the crew dispatchers in

East Deerfield, illegibility of the rapifax copies of the spare

board, and mechanical breakdowns of the rapifax machine.

B & M and UTU continued to discuss the Attachment A-11

proposal after B & M’s action of April 6. At the union’s re-

quest, the negotiations concerning the mutual Section 6

notices were referred to the National Mediation Board in June

of 1979, and assigned Case No. A-10467. Several discussions

were held in August 1979 in the presence of t’ e federal medi-

ators, without resolution of outstanding issues. B & M with-

drew the merger proposal, Attachment A-11, from the Media-

tion Board on August 27, 1979. The UTU was not told of B &

M’s withdrawal until Mediator B. Meredith orally informed

the union on September 25, 1979. The next day the UTU

15a

Local 470 union members at Mechanicville took a strike vote

to refrain from work until B & M returned the crew dispatch-

ers to Mechanicville. Tabulation of the union’s votes was

completed in early October, reflecting 17 in favor, 1 opposed,

and 1 abstention. The UTU advised B & M of its position that

they would stop work unless the dispatchers were returned by

Saturday, October 27, 1979. Throughout, the UTU had ad-

dressed numerous complaints to the B & M. The UTU filed a

complaint in this court for a temporary restraining order and

preliminary injunction on November 30, 1979.

On the basis of these facts, and the testimony heard Feb-

ruary 29 and March 5, 1980, we find that the action of the

railroad involves a change of rules and working conditions in

violation of 45 U.S.C. §§ 152 Seventh and 156 (1976). Hence,

B & M’s contested action involves a major dispute, since there

is no doubt that the existing agreement of November 24, 1970

precludes the merger of the Mechanicville and East Deerfield

crew dispatching facilities. See Elgin, Joliet & E. Ry. Co. v.

Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 1290, 89 L.Ed. 1886

(1945); Airlines Stewards & Stewardesses Ass’n v. Caribbean

Atlantic Airlines, 1 Cir., 1969, 412 F.2d 289, 291. We ex-

plicitly find that the railroad’s “contractual defense [is] so ob-

viously insubstantial as to be an attempt to circumvent § 6 of

the Railway Labor Act.” Airline Stewards & Stewardesses

Ass'n, supra at 291. First, in no way can it be understood that

B & M’s transfer of crew dispatchers and the T-147 spare

board to East Deerfield from Mechanicville is anything but a

merger of those facilities in violation of the November 24, 1970

agreement. Put quite simply, there is no longer a “crew dis-

patching facility” at Mechanicville since no crew dispatching

is done there. Though a “rapifax” machine was installed at

Mechanicville, it is often outdated, illegible, inoperable and

an altogether inadequate substitute for the presence of the

crew dispatchers and the official T-147 spare board. The “dis-

16a

patching” is in fact done at East Deerfield, some 100 miles

away from Mechanicville, where the Local 470 union mem-

bers must call to discover the availability of vacancies and re-

spond to assignments. Failure to keep in constant and ac-

curate contact with the crew dispatchers can result in

penalties to the union members by missing an available assign-

ment and consequently being removed from the list of avail-

able employees for a period of 16 hours before being returned

to the bottom of the waiting list. As in United Transportation

Union v. Penn. Central Co., 6 Cir., 1971, 443 F.2d 131, the

railroad’s instalment of the “rapifax” machine is a unilateral

change in working conditions prohibited by the Railway

Labor Act.

Second, we find that the B & M’s contractual defense that a

“crew dispatching facility” remains in Mechanicville is simply

an attempt to circumvent the Section 6 procedures required by

the Act. The issue between these parties of the merger of crew

dispatching facilities has been historically a subject of negotia-

tion before the National Mediation Board. In fact, the merger

issue was before the Mediation Board in this case until B & M

withdrew Attachment A-11 on August 27, 1979, after it had

unilaterally effected the merger of the Mechanicville and East

Deerfield facilities on April 6.

In view of the foregoing considerations, we are compelled to

issue an injunction to restore the status quo of April 6, 1979 at

the Mechanicville facility until the settlement procedures of 45

U.S.C. § 156 (1976) have been complied with. Detroit &

Toledo Shore Line Railroad Co. v. United Transportation

Union, 396 U.S. 142, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969);

UTU v. Burlington Northern, Inc. , 8 Cir., 1972, 458 F.2d 354,

357. The defendants’ motions for reconsideration of dismissal

and amendment of the preliminary injunction are denied.

17a

Appendix C.

45 U.S.C. §§ 152 SeventH ANp 156 (Rartway Lasor Act).

§ 512. General duties

Seventh. Change in pay, rules, or working conditions con-

trary to agreement or to section 156 forbidden

No carrier, its officers, or agents shall change the rates of

pay, rules, or working conditions of its employees, as a class, as

embodied in agreements except in the manner prescribed in

such agreements or in section 156 of this title.

§ 156. Procedure in changing rates of pay, rules, and work-

ing conditions

Carriers and representatives of the employees shall give at

least thirty days’ written notice of an intended change in

agreements affecting rates of pay, rules, or working condi-

tions, and the time and place for the beginning of conference

between the representatives of the parties interested in such in-

tended 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 case 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 working conditions

shall not be altered by the carrier until the controversy has

been finally acted upon, as required by section 155 of this title,

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.