Petition for Writ of Certiorari — Boston & Maine Corp. v. Lenfest

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86-885

Supreme Court, U8.

FILED

EC 4 1986

OSEPH F. SPANIOL, JR,

No. 86- CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

BOSTON AND MAINE CORPORATION,

Petitioner,

R.M. LENFEST, JR., et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

RALPH J. MOORE, JR.

(Counsel of Record)

D. EUGENIA LANGAN

SHEA & GARDNER

1800 Massachusetts Avenue, N.W.

Washington, D.C. 20036

(202) 828-2000

Counsel for Petitioner

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

QUESTIONS PRESENTED

1. Whether § 212(b) of the Federal Railroad Safety

Act, 45 U.S.C. § 441(b), which prohibits railroads from

discriminating against employees who refuse to work

when confronted by hazardous conditions posing an im-

minent danger of death or serious injury, authorizes gen-

eral strikes and picketing by a railroad union over alleg-

edly hazardous conditions, which would otherwise be un-

lawful under the Railway Labor Act?

2. Whether under § 212(c) of the Federal Railroad

Safety Act, 45 U.S.C. § 441(c), which provides for man-

datory arbitration of claims arising under the employee

rights provision of the Act, the mere assertion by a rail-

road union that it is striking and picketing over a haz-

ardous work condition deprives a federal court of juris-

diction to determine whether the strike and picketing

meet the statutory requirements for protection, or are

otherwise unlawful under the Railway Labor Act?

(i)

LIST OF PARTIES

The parties to the proceedings below, in addition to

those listed in the caption to this petition, are respond-

ents General Committee of Adjustment of the United

Transportation Union(T), J.F. Fiske, Jr., P.E. McHugh,

Richard A. Chartrand, T.G. Crowell, John F’. Fiske, Jr.,

C.L. Harris, Joseph B. Kuchieski, Albert H. Lebert, Leo

J. MacDonald, Charies W. Paige, Jr., George E. Quack-

enbush, William J. Rabbitt, R.J. Sawyer, W.C. Taylor,

Robert J. Wright, Joseph Sylvain, C.T. Tremblay, R.J.

Morani, and D.M. Perigny. All individual respondents

were defendants below in their individual capacities and

as Officers and members of the General Committee of

Adjustment.

Petitioner Boston and Maine Corporation is a wholly-

owned subsidiary of Guilford Transportation Industries,

Inc., a private holding company. Boston and Maine’s sub-

sidiaries and affiliates, apart from whoily-owned subsid-

iaries, are:

Albany Port Railroad Corporation

Albany and Vermont Railway Company

Delaware and Hudson Railway Company

Guilford Aviation Corporation

Guilford Motor Express, Inc.

Hudson River Estates, Ine,

Maine Central Railroad Company

Northern Railroad

Railstar Control Technology, Inc.

Saratoga and Schenectady Railroad Company

Stony Brook Railroad Corporation

Vermont and Massachusetts Railroad Company

TABLE OF CONTENTS

QUESTIONS PRESENTED .....................22..20.-:ccseoseseceees

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Neen is icasicicnicvnsassendessesanabinnccemnenennasssntes

PUI OTE GED ve cessnnencescnsncecenessnssnssesenscnsenecse i

Spe a ROT |

REASONS FOR GRANTING THE WRIT .....................

I. The Decision Below Creating A Novel Right of

Railroad Unions to Call a General Strike Over

an Alleged Safety Dispute Unjustifiably Under-

mines The Railroad Labor Act’s Fundamental

Objective of Preventing Strikes —....................

II. The Decision Below Conflicts With Decisions

of This and Other Courts on Judicial Enforce-

ment of Labor Arbitration Provisions and

Threatens to Disrupt Labor Relations in the

Tee nis piselutnapenteniioaes

EE CEE

(iii)

Page

TABLE OF AUTHORITIES

Cases: Page

Air Line Pilots Ass’n. V. Trans World Airlines, 713

F.2d 940 (2d Cir. 1983), aff’d in part, rev’d in

part on other grounds sub nom. Trans World

Airlines Vv. Thurston, 469 U.S. 111 (1985) .......... 19

AT&T Technologies, Inc. v. Communications

Workers, 106 S. Ct. 1415 (1986) 0... 19

Andrews v. Louisville & Nashville R.R., 406 U.S.

RS: RIES EPA aA kate ON 8

Atchison, Topeka & Santa Fe Ry. v. United Trans-

portation Union, 734 F.2d 317 (7th Cir. 1984).. 9

Beers v. Southern Pacific Transportation Co., 703

y¢ £ ¥. Ye 3 ROREReet eee see 9

Boys Markets, Inc. y. Retail Clerks Union, 398

cated arene ee oe Pe 10, 20

Brotherhood of Locomotive Engineers v. Louisville

& Nashville R.R., 373 U.S. 33 (1963) -........00..... 9

Brotherhood of Locomotive Engineers Vv. Missouri-

Kansas-Texas R.R., 363 U.S. 528 (1960) _........... 19

Brotherhood of Railway and Steamship Clerks v.

Florida East Coast Ry., 384 U.S. 238 (1966)... 15

Brotherhood of Railroad Trainmen vy. Chicago

River & Indiana R.R., 353 U.S. 30 (1957)........ 6, 9, 20

Brotherhood of Railroad Trainmen v. Toledo,

Peoria & Western R.R., 321 U.S. 50 (1944) _...... 24

Chicago & North Western Transportation Co. Vv.

United Transportation Union, 656 F.2d 274 (7th

CRA RENE Mics PAE for te NO 19

Denver & Rio Grande R.R. v. Brotherhood of Rail-

road Trainmen, 58 L.R.R.M. 2568 (D. Colo.

1965), rev’d on other grounds, 367 F.2d 137

(10th Cir. 1966), rev’d, 387 U.S. 556 (1967)... 24

Elgin, Joliet & Eastern Ry. v. Burley, 325 U.S. 711

ER Re REE, Eh REDS IEE sas ied EE 6, 8,9

Gateway Coal Co. v. United Mine Workers, 414

ST TIED cccssinassctensoecuahinep bukeccacaba Ueda cien eiitinas 10, 20, 23

Independent Federation of Flight Attendants v.

Trans World Airlines, 655 F.2d 155 (8th Cir.

-e

—

TABLE OF AUTHORITIES—Continued

Johnson v. Chicago Milwaukee & St. Paul R.R.,

400 F.2d 968 (9th Cir. 1968) ...................... iiela Se

BE . HN sratchiccincsinedninasinialincataripantciscintnesenedunentniaantins

John Wiley & Sons, Inc. v. Livingston, 376 U.S.

Minehart v. Louisville and Nashville R.R., 731

ip ¢ £ 4: &. — : eee ree

Missouri-Kansas-Texas R.R. v. Brotherhood of

Railroad Trainmen, 342 F.2d 298 (5th Cir.

GE eisikcncsnasnemisecisnadsecatecadcglanadiekssaiiapictacbAesiitneiane

Missouri Pacific R.R. v. United Transportation

Union, 782 F.2d 107 (8th Cir. 1986) ........ eigen

Montgomery Ward & Co. v. Northern Pacific Ter-

minal Co., 128 F. Supp. 475 (D. Ore. 1953) ........

New York, Chicago & St. Louis R.R. v. Brother-

hood of Locomotive Firemen & Enginemen, 358

ps FF be SRR een ee

Railway Labor Executives Ass’n. Vv. Atchison,

Topeka & Santa Fe Ry., 430 F.2d 994 (9th Cir.

1970), cert. denied, 400 U.S. 1021 (1971) ........

Southern Ry. v. Brotherhood of Locomotive Fire-

men & Enginemen, 384 F.2d 323 (D.C. Cir.

SD saints banianinn

St. Louis Southwestern Ry. v. United Transporta-

tion Union, 646 F.2d 230 (5th Cir. 1981)-......

Texas & New Orleans R.R. v. Brotherhood of Rail-

way & Steamship Clerks, 281 U.S. 548 (1930) ....

Toledo Ann Arbor & Northern Michigan R.R. v.

Pennsylvania Co., 54 F. 730 (C.C.N.D. Ohio),

appeal dismissed sub nom. In re Lennon, 150

i ER das cael be

Trans Int’! Airlines, Inc. v. International Brother-

hood of Teamsters, 650 F.2d 949 (9th Cir.),

cert. denied sub nom. Air Line Pilots Ass’n V.

Trans Int’l Airlines, 449 U.S. 1110 (1980) _....

United Steeiworkers v. Warrior & Gulf Naviga-

tion Co., 368 U.S. 574 (1960) .................................

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

ee RE RE eee meer ene

Page

8,14

9, 20

TABLE OF AUTHORITIES—Continued

Page

United Transportation Union v. Penn Central

Transportation Co., 505 F.2d 542 (3d Cir.

SIDED nccoctisccsincetnncuabniclinsthetidbinietnitni toiRiites 19

Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980)... ll

Statutes:

Federal Railway Safety Act, Pub. L. No. 91-458,

84 Stat. 971 (1970), as amended:

Section 202, 45 U.S.C. § 481 ................................ 11

Section 203, 45 U.S.C. § 432... a a 11

Section 207, 45 U.S.C. § 436 0... siiiods ll

Section 212, 45 U.S.C. § 441................................. passim

Federal Railroad Safety Authorization Act of

1980, Pub. L. No. 96-423, 94 Stat. 1811 (1980)_6, 13, 14

Interstate Commerce Act, ch. 104, 24 Stat. 379

(1887), as amended:

a ae aa 15

Labor Management Relations (Taft-Hartley) Act,

ch. 120, 61 Stat. 1386 (1947), as amended:

Section 502, 29 U.S.C. § 143 ................................ 10, 23

National Labor Relations Act, ch. 372, 49 Stat.

449 (1936), as amended:

REESE 10

Section 7, 29 U.S.C. § 157 ......... “ 10

Occupational Safety and Health Act of 1970, Pub.

L. No. 91-596, 84 Stat. 1590 (1970), as amended:

Section 11, 29 U.S.C. § 660... 12

Railway Labor Act, ch. 347, 44 Stat. 577 (1926),

as amended:

Boatiems B, GB TET. © RIG crnecseccctesssecsccstscestenssens 3,8

Section 3 First, 45 U.S.C. § 153 First... passim

DC a eters enenceestbaccbicisitasDccsnncecnadomniis a 12

PR Re. ese en ae 2

SD Bias i cetennemnennessininnvtininieniniaiinstimapennains

IB WTA, © TIRIS vesistsintccecnsssninonstbitssietsisieinemmncidaianiin

vii

TABLE OF AUTHORITIES—Continued

Legislative History: Page

Legislative History of the Railway Labor Act, As

Amended (1926 through 1966) (United States

Government Printing Office 1974) —...... 15

H.R. Rep. No. 96-1025, 96th Cong., 2d Sess.

EERE SE OSE aig At SARS Re ER Re 11, 14, 21

Railway Safety: Hearing before the Subcommit-

tee on Transportation and Commerce of the

House Committee on Interstate and Foreign

Commerce, 96th Cong., 2d Sess. (1980)... 13, 14, 21,

22, 25

126 Cong. Rec. 26531, 27056 (1980) 0... vata 11, 22

H.R. 6497, 96th Cong., 2d Sess. (1980) _.... 13, 14, 21, 22, 25

Miscellaneous:

29 C.F.R. § 1977.12 (1979), currently at 29 C.F.R.

2 SS SSSI aca» Sn aa neES 11,12

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-

BOSTON AND MAINE CORPORATION,

Petitioner,

Vv.

R.M. LENFEST, JR., et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Petitioner Boston and Maine Corporation respectfully

requests that the Court issue a writ of certiorari to re-

view the judgment of the United States Court of Appeals

for the First Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

799 F.2d 795 (1986) and is reprinted at App. 1la-18a.

The opinion of the District Court granting the petition-

er’s motion for a preliminary iujunction is reported at

622 F. Supp. 942 (D. Mass. 1985) and is reprinted at

App. 19a-32a. The opinion of the District Court grant-

ing petitioner’s motion for a temporary restraining order

is unreported, and is reprinted at App. 33a-35a.

2 :

JURISDICTION |

The judgmen: of the Court of Appeals was entered on

September 2, 1986 (App. 36a). The jurisdiction of this

Court to review the judgment of the Court of Appeals is

invoked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

1. Section 212 of the Federal Railroad Safety Act, as

amended, 45 U.S.C. § 441, provides in pertinent part:

“(a) Filing of complaints; institution of proceed-

ings; testimony

(1) A common carrier by railroad engaged in in-

state or foreign commerce may not discharge or in

any manner discriminate against any employee be-

cause such employee, whether acting in his own be-

half or in a representative capacity, has—

(1) filed any complaint or instituted or caused to

be instituted any proceding under or related to the

enforcement of the Federal railroad safety laws; or

(2) testified or is about to testify in any such pro-

ceeding.

(b) Refusal to work under hazardous conditions

(1) A common carrier by railroad engaged in in-

terstate or foreign commerce may not discharge or

in any manner discriminate against any employee

for refusing to work when confronted by a hazardous

condition reiated to the performance of the employ-

ee’s duties, if—

(A) the refusal is made in good faith and no

reasonable alternative to such refusal is avail-

able to the employee;

(B) the hazardous condition is of such a na-

ture that a reasonable person, under the circum-

stances then confronting the employee, would

conclude that—

(i) the condition presents an imminent

danger of death or serious injury; and

(ii) there is insufficient time, due to the

urgency of the situation, to eliminate the

danger through resort to the — stat-

utory channels; and

his employer of his apprehension of such haz-

ardous condition and of his intention not to per-

form further work unless such condition is cor-

rected immediately.

* + &

(1) Any dispute, grievance, or claim arising un-

der this section shall be subject to resolution in ac-

cordance with the procedures set forth in section 153

of this title.

(2) In the case of any violation of subsection (a)

or ‘b) of this section, the Adjustment Board (or

any division or delegate thereof) or any other board

of adjustment created under section 153 of this title

shall, where appropriate, award backpay to the ag-

grieved employee and order such employee reinstated

to his position.”

2. Section 2 of the Railway Labor Act, 45 U.S.C.

§ 15la, provides in pertinent part:

“The purposes of the Chapter are: (1) to avoid

any interruption to commerce or to the operation of

any carrier engaged therein; * * * (4) to provide

for the prompt and orderly settlement of all disputes

concerning rates of pay, rules, or working conditions;

(5) to provide for the prompt and orderly settlement

of all disputes growing out of grievances or out of

the interpretation or application of agreements cov-

ering rates of pay, rules, or working conditions.”

3. Section 3 First (i) of the Railway Labor Act,

45 U.S.C. § 153 First (i), provides in pertinent part:

“The disputes between an employee or group of

employees and a carrier or carriers growing out of

grievances or out of the interpretation or applica-

tion of agreements concerning rates of pay, rules,

and working conditions, * * * shall be handled in

the usual manner up to and including the chief oper-

ating officer of the carrier designated to handle such

disputes; but, failing to reach an adjustment in this

manner, the disputes may be referred by petition of

the parties or by either party to the appropriate divi-

sion of the [National Railroad] Adjustment Board

with a full statement of the facts and all support-

ing data bearing upon the dispute.”

STATEMENT OF THE CASE

This case arises out of a strike against petitioner

Boston and Maine Corporation called by respondent Len-

fest as the General Chairman of the United Transporta-

tion Union(T) General Committee of Adjustment on the

Boston and Maine. (App. 20a). The United Transpor-

tation Union represents the Boston and Maine’s train-

men and conductors for purposes of collective bargain-

ing under the Railway Labor Act. (App. 19a). Boston

and Maine is a common carrier of freight and passen-

gers by rail that operates throughout New England and

parts of New York, and that,-at the time of the strike,

also operated a commuter rail service in Boston, Massa-

chusetts. (App. 19a-20a).

At 4:00 A.M. on November 4, 1985, without warning,

members of the United Transportation Union carrying

signs reading “UTU ON STRIKE” established picket

lines throughout the Boston and Maine system, which

caused a general work stoppage of the Boston and Maine’s

employees, so that its freight and passenger operations

were entirely shut down. (App. 20a); Transcript of

Hearing on Temporary Restraining Order at 36 (Nov. 4,

1985). The strike was halted that evening when the

district court granted a temporary restraining order.’

(App. 35a). In the meantime Boston and Maine lost a

day’s revenue and approximately 25,000 Boston area resi-

dents who relied upon the commuter rail service to

travel to and from work were forced to find alternative

means of transportation, or were unable to report to

their jobs. (App. 20a).

Boston and Maine had received no prior notice of the

strike. (App. 20a-22a). Boston and Maine officials who

questioned picketers as to the reason for the strike were

advised that it concerned “safety.” (App. 21a). It was

not, however, until the hearing on Boston and Maine’s

motion for a temporary restraining order on the evening

of November 4 that Lenfest told the Boston and Maine

that he had called the strike to protest the carrier’s al-

leged departure from its practice of providing “flagging”’

at construction sites along the track to warn oncoming

trains that the track might be obstructed. (App. 34a).

Neither Lenfest nor any other United Transportation

Union official or member had ever previously notified the

Boston and Maine of any specific instance in which the

carrier had failed to provide flagging at construction

sites. (App. 21a-22a).

Under § 3 First (i) of the Railway Labor Act, all dis-

putes “growing out of grievances or out of the interpre-

tation or application of agreements concerning rates of

pay, rules or working conditions,” are subject to manda-

tory arbitration by adjustment boards constituted under

§3. 45 U.S.C. § 153 First (i) (emphasis added). Such

so-called “minor disputes” include not only claims aris-

ing under collective bargaining agreements, but also

“omitted case[s]” involving claims that arise from “some

incident of the employment relation” that is “independent

1The district court’s jurisdiction was based upon 28 U.S.C.

§§ 1331 and 1337.

of those covered by the collective agreement.” Elgin, Jo-

liet & Eastern Ry. v. Burley, 325 U.S. 711, 723 (1945).

Because a carrier’s duty to provide a safe work place is

an “incident of the employment relation,” a claim that

a carrier has failed to correct an allegedly hazardous con-

dition presents a minor dispute. Missouri-Kansas-Texas

R.R. v. Brotherhood of Railroad Trainmen, 342 F.2d 298,

300 (5th Cir. 1965). A strike over a minor dispute is un-

lawful, and may be enjoined by a federal court notwith-

standing the Norris-LaGuardia Act’s general proscription

of strike injunctions. Brotherhood of Railroad Trainmen

v. Chicago River & Indiana R.R., 353 U.S. 30 (1957).

In this case, however, respondents claimed for the first

time in response to the Boston and Maine’s motion for a

preliminary injunction that their concerted work stop-

page and picketing was not a strike over a minor dispute,

but rather was a protected refusal to work under § 212

(b) of the Federal Railroad Safety Act.? Section 212(b)

prohibits a rail carrier from discriminating against an

employee who refuses in good faith to work under haz-

ardous conditions that a reasonable person would believe

present “an imminent danger of death or serious injury,”

provided that the employee has, where possible, first

notified the carrier both of the hazard and of his inten-

tion not to perform work until the hazard is corrected.

45 U.S.C. § 441(b) (1) (A)-(C).

The district court preliminarily enjoined the strike,

rejecting the respondents’ defense under § 212(b). The

court first determined that the dispute over the Boston

and Maine’s alleged failure to comply with its flagging

policy was a minor dispute under the Railway Labor

Act, so that the strike over that dispute was unlawful.

(App. 26a-27a). The court then held that § 212(b) of

the Federal Railroad Safety Act “was not intended to

2§10 of the Federal Railroad Safety Authorization Act of 1980

amended the Federal Railroad Safety Act by adding § 212. Pub. L.

96-423 § 10, 94 Stat. 1811, 1815 (1980).

LS eee

provide a shield [for] illegal general strikes.” (App.

30a). The court construed § 212(b) to “allow an em-

ployee or employees personally faced with a. hazardous

situation to walk off a job without the fear of retaliation

of their employer,” so long as the notice and other statu-

tory requirements are met. “This is not to say,” the

court ruled, “that one man’s danger affords any basis at

all in law or in fact for a system-wide strike by hun-

dreds of other employees who are not personally exposed

to that danger.” (App. 30a-31a) (emphasis in original).

' As an alternative ground, the court held that the strike

would not be protected in any event because respondents

had failed to comply with the notice requirements of

§ 212(b) (1) (c). (App. 29a-30a).

The Court of Appeals reversed on both grounds. It

rejected the district court’s “literal” construction of § 212

(b), and held that “the Union may call a concerted work

stoppage under [§ 212(b)] to protect the lives and safety

of employees.” (App. 7a, 9a). The established doctrine

under the Railway Labor Act that strikes over minor dis-

putes are unlawful no longer applies to safety strikes, in

the view of the Court of Appeals, since the 1980 enact-

ment that added § 212 to the Safety Act. (App. 18a).

The Court of Appeals also reversed the district court’s

holding that the strike was unprotected under § 212(b)

because of respondents’ failure to comply with the notice

requirements of § 212(b)(1)(C). The court held that

§ 212(c), 45 U.S.C. § 441(c), which provides that dis-

putes arising under § 212 shall be determined by adjust-

ment boards constituted under § 3 of the Railway Labor

Act, deprives the district courts of jurisdiction to make

any findings of fact as to the statutory requirements for

protection under § 212(b). (App. 10a-1la). The Court

stated that this compelled the holding that the strike was

“a protected refusal to work” under § 212(b). (App.

18a).

The Court of Appeals went on to hold that, despite its

“protected” status, a strike called under § 212(b) can be

enjoined once the underlying dispute has been committed

to an adjustment board, in order to protect the board’s

jurisdiction. However, having held that a court may not

make any factual determinations, including any assess-

ment of the nature of the hazard alleged to be involved,

the Court of Appeals held that to obtain a strike injunc-

tion in a § 212(b) case, a carrier must make some provi-

sion to meet the union’s purported safety demands. (App.

15a-18a). In addition, because of its holding that § 212

(b) protects any strike over allegedly hazardous condi-

tions, the Court of Appeals ordered that the Boston and

Maine’s action for damages for its strike losses be dis-

missed. (App. 18a).

REASONS FOR GRANTING THE WRIT

I. The Decision Below Creating A Novel Right of Rail-

road Unions To Call a General Strike Over an Alleged

Safety Dispute Unjustifiably Undermines The Railway

Labor Act’s Fundamental Objective of Preventing

Strikes

As this Court has long recognized, “the major purpose

of Congress in passing the Railway Labor Act was to

provide a machinery to prevent strikes.” Texas & New

Orleans R.R. V. Brotherhood of Railway & Steamship

Clerks, 281 U.S. 548, 565 (1980). See 45 U.S.C. § 15la

(1). The Railway Labor Act thus provides “for the

prompt and orderly settlement” of all labor disputes aris-

ing under it. 45 U.S.C. §151a(4) & (5). The “prompt

and orderly” mechanism provided for “minor disputes”

growing “out of grievances or out of the interpretation

or application of [collective bargaining] agreements’’ is

compulsory arbitration by adjustment boards under § 3 of

the Act. Elgin, Joliet & Eastern Ry., supra, 325 U.S. at

722-723; 45 U.S.C. § 153 First (i) ; see Andrews v. Louis-

ville & Nashville R.R., 406 U.S. 320, 322 (1972). Strikes

over minor disputes are unlawful, since to allow them

would nullify the mandatory jurisdiction of the adjust-

ment boards. Brotherhood of Railroad Trainmen v. Chi-

cago River & Indiana R.R., 353 U.S. 30, 39-42 (1957).°

The category of minor disputes comprehends not only

claims arising under collective bargaining agreements but

also those claims that this Court denominated in Elgin,

Joliet & Eastern Ry. as “omitted” cases, which, while

independent of any agreement, nonetheless are “founded

on some incident of the employment relation.” 325 U.S.

at 723.4 As the district court in this case recognized, anu

as the Fifth Circuit held in Missouri-Kansas-Texas R.R.,

supra, although an employer’s obligation to provide a safe

work place may arise from the common or statutory law,

and not from its collective bargaining agreements, that

obligation is an incident of the employment relationship.

Thus a claim by a railroad union that a carrier has failed

to provide safe working conditions presents a minor dis-

pute of the “omitted case” variant, and a strike over

such a claim is unlawful. See 342 F.2d at 300. In short,

because § 3 of the Railway Labor act bars strikes over

minor disputes, the Act affords no right to unions or to

3 E.g., Brotherhood of Locomotive Engineers vy. Louisville & Nash-

ville R.R., 373 U.S. 337, 39-40 (1963); Missouri Pacific R.R. Vv.

United Transp. Union, 782 F.2d 107, 110 (8th Cir. 1986) ; Atchison,

Topeka & Santa Fe Ry. v. United Transp. Union, 734 F.2d 317, 320

(7th Cir. 1984); Trans Int’l Airlines Inc. v. International Bhd. of

Teamsters, 650 F.2d 949, 965-66 (9th Cir. 1980); New York, Chi-

cago & St. Louis R.R. v. Brotherhood of Locomotive Firemen &

Enginemen, 358 F.2d 464, 469 (6th Cir. 1966).

4 See e.g., Minehart v. Louisville & Nashville R.R., 731 F.2d 342,

843 (6th Cir. 1984) (claim of retaliatory discharge held to present

minor dispute); Beers v. Southern Pacific Transp. Co., 703 F.2d

425, 429 (9th Cir. 1983) (claim of intentional infliction of emo-

tional distress held to present minor dispute); Railway Labor

Executives Ass’n vy. Atchison, Topeka & Santa Fe Ry. 430 F.2d

994, 997 (9th Cir. 1970) (claim that carrier’s partial shutdown and

elimination of jobs was a statutory tort under the Interstate Com-

merce Act held to present minor dispute).

employees to strike in protest against allegedly unsafe or

otherwise unsatisfactory working conditions.°

Section 212 of the Federal Railroad Safety Act ex-

pressly incorporates § 3 of the Railway Labor Act, pro-

viding that employee grievances under § 212(b) must be

heard by adjustment boards. 45 U.S.C. § 441(¢c). On

its face, therefore, § 212 would appear to incorporate the

well-settled law under § 3 and to ban strikes over safety

disputes. The Court of Appeals, however, drew precisely

5 The same result obtains under the National Labor Relations Act

when arbitration is provided. Under that Act, arbitration is a

matter of contract, not a statutory obligation as it is under the Rail-

way Labor Act. An arbitration provision in a labor contract, how-

ever, implies a no-strike obligation as a matter of law. Gateway

Coal Co. v. United Mine Workers, 414 U.S. 368, 382 (1974). Just

as an unlawful strike over a minor dispute under the Railway Labor

Act may be enjoined notwithstanding the Norris-LaGuardia Act,

a strike that violates an express or implied no-strike obligation

under the National Labor Relations Act may be enjoined. Boys

Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 248 (1970). In

Gateway Coal, this Court held that the no-strike obligation derived

from a contractual arbitration provision generally applies to safety

disputes. 414 U.S. at 379.

To be sure, the Court in Gateway Coal recognized that § 502 of

the Labor Management Relations Act, 29 U.S.C. § 143, which pro-

vides that refusals to work under abnormally hazardous conditions

shall not be deemed unlawful strikes, authorizes unions to call

work stoppages where there is objective evidence that such an

abnormal hazard exists. The Court of Appeals in this case relied

in part on this aspect of Gateway Coal to hold that a railroad union

may call a strike under the Federal Railroad Safety Act. (App.

9a-10a). The Court of Appeals’ reliance was misplaced, however,

because § 502 of the Labor Management Relations Act amended,

and is a part of the same statutory scheme as, the National Labor

Relations Act, § 7 of which broadly authorizes “concerted activities

for the purpose of collective bargaining or other mutual aid or

protection.” 29 U.S.C. § 157 (emphasis added). Neither § 502 nor

§ 7 applies to the railroad industry, 29 U.S.C. §§ 152(2) & (3), and

neither the Federal Railroad Safety Act nor, for that matter, the

Railway Labor Act, contains any broad authorization for concerted

action analogous to § 7.

the opposite inference and construed § 212(b) to effect a

major change in the law of railway labor relations, con-

ferring upon railroad unions the right not only to call a

general strike, but also to establish picket lines and cause

a system-wide shut-down to protest an allegedly unsafe

condition affecting the union’s members. It is clear, how-

ever, that Congress never intended that the Federal Rail-

road Safety Act have any such effect.

The Federal Railroad Safety Act provides a detailed

and comprehensive scheme for preventing and remedying

railroad safety hazards. It is enforceable not only by

the Secretary of Transportation and the State govern-

ments, but also by individual railroad employees. 45

U.S.C. §$§ 431, 436(b), 482(e). Section 212(b) by its

plain terms applies only where “there is insufficient time

[for] resort to regular statutory channels” because an

employee is confronted with a condition that presents “an

imminent danger of death or serious injury.” 45 U.S.C.

$$ 441(b) (1) (B) (i). Even in such situations, a refusal

to work is protected only if it is “in good faith,” if a

“reasonable person” would conclude that it is necessary,

and if the employee gives prior notice to the carrier, un-

less that is impossible. 45 U.S.C. § 441(b) (1) (A), (B), &

(C). As the legislative history of § 212(b) states, that

provision applies only where railroad employees are pre-

sented with an absolute choice “between their lives and

their livelihoods.” H.R. Rep. No. 96-1025, 96th Cong.,

2d Sess. at 8 (1980), reprinted in 1980 U.S. Code Cong.

& Ad. News 3830, 3832.° The language of § 212(b), its

® The legislative history indicates that Congress intended by

§ 212(b) to extend to railroad employees the same right to refuse

to work under hazardous conditions that this Court recognized

employees in other industries possess under the Occupational Safety

and Health Act in Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980).

See H.R. Rep. No. 96-1025, supra, at 16; 126 Cong. Rec. 27056

(1980) (remarks of Sen. Cannon) ; id. at 26531 (remarks of Rep.

Florio).

Whirlpool presented the question of the validity of a regulation

of the Secretary of ...bor under OSHA. The regulation, 29 C.F.R.

legislative history, and the comprehensive remedial scheme

of which it is a part thus leave no room for doubt that

the Act protects refusals to work only where they are

necessary as a last resort to protect employees from im-

mediate life-threatening danger.

In holding that § 212(b) authorizes strikes and picket-

ing by railroad unions, the Court of Appeals relied pri-

marily upon 1 U.S.C. §1. That statute provides as a

general rule of statutory construction that “words im-

porting the singular include and apply to several per-

sons * * *.” The court thus held that the singular word

“employee” in § 212(b) refers as well to “groups of em-

ployees.” (App. 7a-8a). Regardless how correct that

premise may be, it does not support the court’s conclu-

sion that § 212(b) was intended to do more than confer

a “personal right” upon those employees who are actually

confronted with imminent and deadly peril. (App. 7a).

Indeed, the rule of necessity that conditions employee

rights under § 212(b) compels rejection of that conclu-

sion. Moreover, while it may be that in a given case a

group of employees would be protected under § 212(b)

for refusing to work if all of them were subjected to

imminent danger—although the record in this case con-

tains no indication that such a circumstance was present

here—that would neither necessitate nor justify the union

that represents those employees in calling a generai strike

to protest the hazard. Still less could it justify a union’s

§ 1977.12 (1979), construed the anti-retaliation provision of OSHA,

29 U.S.C. § 660(c), to protect an employee who refuses to work

when “ ‘confronted with a choice between not performing assigned

tasks or subjecting himself to serious injury or death arising from

a hazardous condition at the workplace.’” 445 U.S. at 4 n.3 (quot-

ing 29 C.F.R. § 1977.12). The Court upheld the regulation, noting

that it dealt only with “highly perilous and fast-moving situations”

that “will probably not often occur.” Jd. at 17. The regulation

explicitly noted, correctly as this Court held, that “‘as a general

matter there is no right afforded by the Act which would entitle

employees to walk off the job because of potential unsafe conditions

at the workplace.’” Jd. at 10 (quoting 29 C.F.R. § 1977.12).

shutting down a carrier’s entire operation by setting up

picket lines advertising the strike to the carrier’s other

employees, virtually all of whom can be expected to honor

the picket lines and refuse to report to work, as hap-

pened in this case. Such disruptive concerted activity

plainly cannot be justified by any standard of necessity.

Moreover, the legislative history of the Federal Railroad

Safety Authorization Act of 1980, which added § 212,

affirmatively indicates that Congress did not intend to

create a new right to strike for railroad unions.

As originally introduced in the House of Representa-

tives, the provision of the 1980 Authorization Act that

became § 212 would have allowed an employee who be-

lieved his working conditions to be unsafe to demand re-

assignment, and “either individually or in concert with

other employees, to stop working” to enforce that de-

mand. H.R. 6497 at 3-4, 96th Cong., 2d Sess. (1980).

The railroad industry opposed this provision on the

ground that it “would subvert the long established prin-

ciples and provisions of the Railway Labor Act, which

has been on the books since 1926, and which carefully

delineates the circumstances in which a strike may oc-

eur.” Railroad Safety: Hearing Before the Subcommittee

on Transportation and Commerce of the House Committee

on Interstate and Foreign Commerce, 96th Cong., 2d Sess.

at 104 (1980). [hereinafter “House Hearings’ (state-

ment of William H. Dempsey, President, American As-

sociation of Railroads); see also id. at 69. Pointing out

that the Railway Labor Act “doesn’t permit strikes ex-

cept after the most extraordinary exhaustion of circum-

stances,” un industry representative objected that the “in

concert” provision would “give each employee who is dis-

satisfied with safety conditions the right to back up his

unsupported judgment with the block-buster weapon of a

strike.” Jd. at 173, 104.

Similarly, the railroad industry opposed a proposed

amendment that would have given “the authorized col-

lective bargaining representative of the craft or class of

[a carrier’s] employees adversely affected” by an alleged

violation of the Act’s safety standards standing to sue

the carrier under the Act. H.R. 6497, supra, at 2. The

industry objected that this provision would have a “corro-

sive impact on labor relations” because it would allow a

union to use litigation over alleged safety violations “as

a means of pressing its position in labor disputes,” and

would thereby “weaken the effectiveness of the proce-

dures existing under the Railway Labor Act.” House

Hearings at 69, 102-103.

The Authorization Act as reported by the House Com-

mittee on Interstate and Foreign Commerce after it had

heard these industry objections entirely omitted the au-

thorization for employees to act “in concert with other

employees.” H.R. Rep. No. 96-1025, supra, at 4. The

House Committee also deleted the provision giving unions

standing to sue and replaced it with one giving standing

to individual employees “who may be exposed to physical

injury.” Jd. at 2. Both of these changes were carried

over into the Authorization Act that was passed by Con-

gress. 94 Stat. 1812, 1815. Thus, Congress took pains to

avoid any language that would allow under the Federal

Railroad Safety Act strikes or other concerted activity

that would be unlawful under the Railway Labor Act.

In sum, the Court of Appeals’ holding that railroad unions

are free to strike over allegedly hazardous working con-

ditions is plainly not supported by § 212(b) of the Fed-

eral Railroad Safety Act, and jndeed is contrary to the

purposes of the Congress in that Act.

The decision below is also contrary to and subversive

of the Railway Labor Act’s fundamental objective of

preventing strikes. See Texas & New Orleans R.R.,

supra, 281 U.S. at 565. The importance of that objective

can hardly be overstated. Congress deemed it essential

to prevent railroad strikes because of the harm to inter-

state commerce and the public interest that may result

from a strike of even short duration.” Indeed, precisely

to serve the public interest, railroads as common carriers

under the Interstate Commerce Act have a statutory duty

to maintain continued operations. 49 U.S.C. § 11101(a).*

Congress has thus repeatedly stressed the importance of

the federal policy against strikes in the railroad industry,

and indeed, as we have shown, the legislative history of

the Safety Act itself indicates that it was carefully crafted

to avoid interfering with that policy. Review by this

Court is warranted because the Court of Appeals’ crea-

tion of a novel strike right threatens to undermine that

important federal policy.

To be sure, despite its holding that a union has a “pro-

tected” right under § 212(b) to strike, and to do so

without giving the carrier any prior notice of the alleged

safety violation or of the strike even if that is possible,

and its further holding that a carrier’s claim for damages

cause‘i by the strike therefore must be dismissed, the

Court of Appeals also held that the strike nonetheless

could be enjoined if the jurisdiction of an adjustment

board is invoked under § 212(c) and the injunction is

conditioned upon the carrier’s taking action to meet the

union’s as yet unproven allegations of safety infractions.

This does not make any logical sense and, perhaps more

importantly, it does not make any practical sense. The

Court of Appeals in effect is saying, “strike first and

T See, e.g., Legislative History of the Railway Labor Act at 238

(remarks of Rep. Merritt) :

“Everybody recognizes the absolute importance of the smooth

and continued functioning of the railway transportation sys-

tem. Everyone knows that if that system should be paralyzed

even for one week * * * [there] would be a national calamity.”

8 See Brotherhood of Railway & Steamship Clerks v. Florida East

Coast Ry., 384 U.S. 288 (1966) ; Johnson v. Chicago, Milwaukee &

St. Paul R.R., 400 F.2d 968, 972 (9th Cir. 1968) (carrier was

obliged to do “ ‘everything in its power to carry out its absolute

obligation,’” and hence was liable in damages to shipper for termi-

nation of service caused by tunnel cave-in) (citations omitted).

only after the time necessary for the carrier to seek and

obtain an injunction need the statutory remedy be pur-

sued.” It encourages the unions to strike with impunity

for a time, and thus inflict economic damage on carriers,

even though such a strike may be enjoined and thus can-

not itself be expected to coerce a settlement of the safety

dispute and even though the union’s safety claims may

be without foundation.

~ .

A strike that shuts down a railroad’s operations for

even a day may be very costly to the railroad and to the

public. In this case, for example, the Boston & Maine

lost a day’s revenue from its freight operations and the

fares that it would have gained from the more than 25,-

000 passengers who, but for the strike, would have used

the carrier’s commuter services to travel to and from

work on November 4, 1985. (App. 20a). Shippers were

deprived of rail service for that day, the commuters lost

part or all of that day’s work depending upon their abil-

ity without notice to arrange alternative means of trans-

portation, and their employers were concomitantly de-

prived of their services. And the carrier’s employees,

most of whom are not represented by the United Trans-

portation Union, lost a day’s work and a day’s pay.

(App. 34a).

On the other hand, it is undisputed that an employee

who has a good faith and reasonable belief that he is in

imminent danger of death or serious injury from a haz-

ardous condition which time does not permit to be elimi-

nated through regular statutory channels has a right to

refuse to work without even first notifying the employer,

if prior notice is not possible, without being discharged

or otherwise discriminated against by his employer. That

is what the statute provides, and that is what the Con-

gress considered to be sufficient, in light of the other stat-

utory remedies provided to allow an employee to protect

himself from unsafe working conditions.’ The extrapola-

® The court below suggested that a right to strike was necessary

because “an individual employee working on a train was not in a

tion by the court below of a protected right to strike is

not in the statute, was not intended by the Congress, is

not necessary, and gives rise to an important issue of law

that should be reviewed by this Court.

II. The Decision Below Conflicts With Decisions of This

and Other Courts on Judicial Enforcement of Labor

Arbitration Provisions and Threatens to Disrupt Labor

Relations in the Railroad Industry

Even if the decision of the Court of Appeals that the

Federal Railroad Safety Act authorizes railroad unions to

strike and picket over allegedly hazardous conditions were

entirely correct, its determination that the grievance ar-

bitration provision of the Act deprives federal courts of

jurisdiction to determine whether such strikes meet the

statutory requirements for protection is in conflict with

numerous decisions of this and other federal courts on

the role of the courts in enforcing labor arbitration pro-

visions, and its consequences are sufficiently important to

warrant review by this Court.

Section 212(c) (1) of the Act provides that any “dis-

pute, grievance, or claim arising under this section” shall

be determined by adjustment boards “in accordance with

7 ee eeEEEEEeEeEee

position to know about the risk until it was too late or the danger

has passed,” and “[o]nly the Union officials who were privy to the

system-wide defective and inconsistent flagging protection were

in a position to recognize the potentix| danger to which all em-

ployees working on trains were exposed.” (App. 9a). It was not

established in the record either that there was “system-wide defec-

tive and inconsistent flagging protection” (which the B&M denied)

or that, if so, train crews generally would not know about it. But

even if both propositions were established, in the time that the

union was directing the employees to strike and picket (including

the time it took to prepare picket signs), the union could have

advised them of the facts upon which it based its flagging claim,

and of the individuals’ rights under the Safety Act. Moreover, the

picketing was directed towards non-operating employees repre-

sented by other unions who under no circumstances could have

been endangered by the allegedly defective flagging.

artnet

the procedures set forth in” §3 of the Railway Labor

Act. 45 U.S.C. § 441(c) (1). The Court of Appeals con-

strued § 212(c) (1) to deprive the federal courts of ju-

risdiction to make any findings of fact in a case where

the applicability of §212(b) is asserted. (App. lla).

The Court of Appeals accordingly held that the cour‘s

lack power to determine whether a strike ostensibly called

under § 212(b) has met the notice requirements of § 212

(b) (1) (C), or any of the other statutory conditions prec-

edent for protection, including the existence of an actual

hazardous condition. Jd. Thus, in the view of the Court

of Appeals, a union’s bare assertion that a strike is called

over a safety issue compels the holding that the strike is

“a protected refusal to work” under § 212(b), without

regard to whether or not the statutory prerequisites for

such protection have in fact been met. (App. 18a).

Consequently, it ordered that the carrier’s action for

damages in this case be dismissed. 7d. In addition, while

the court held that even a protected refusal to work may

be enjoined once any associated “claims” under § 212(b)

have been submitted to an adjustment board, its view

that the courts are obliged to take a striking union at

its word in asserting a safety concern led it to hold that

any strike injunction must be conditioned upon the car-

rier’s taking some action to meet that alleged concern.

(App. 17a).

ere eee one

The premise of the Court of Appeals’ jurisdictional

holding is that a court must defer totally to a party’s

claim that its actions are shielded from judicial scrutiny

by an arbitration provision. That premise is in conflict

with the whole body of case law under § 3 of the Railway

Labor Act, which § 212(c) incorporates. All of the courts

of appeals that have considered the question are in ac-

cord that federal courts have jurisdiction under § 3 to

determine whether a dispute is arbitrable, and to reject

a claim of arbitrability where the substantive position of

the party asserting that claim is “obviously insubstan-

eel

tial.” *° See Southern Ry. v. Brotherhood of Locomotive

Firemen & Enginemen, 384 F.2d 323, 327 (D.C. Cir.

1967) (claim of arbitrability under § 3 rejected where it

was “so obviously insubstantial and_ so inherently un-

reasonable as to amount to bad faith’). Indeed, even

where it is clear that a dispute is subject to arbitration

under § 3, a federal court has jurisdiction to inquire into

the facts to the extent necessary to determine whether a

status quo injunction should issue pending the adjust-

ment board’s determination. Brotherhood of Locomotive

Engineers Vv. Missouri-Kansas-Texas R.R., 363 U.S. 528

(1960). Moreover, decisions of this Court under the Na-

tional Labor Relations Act likewise have repeatedly held

that “the question of arbitrability * * * is undeniably an

issue for judicial determination.” AT&T Technologies,

Inc. Vv. Communications Workers, 106 S. Ct. 1415, 1418

(1986). See John Wiley & Sons, Inc. v. Livingston, 376

U.S. 548, 546-47 (1964); United Steelworkers v. War-

rior & Gulf Navigation Co., 363 U.S. 574-582 (1960).

It is critical that the federal courts have power to

determine whether a dispute is arbitrable, because that

question determines whether a union may strike over the

dispute. Under the National Labor Relations Act, where

arbitration is a matter of contract, “the agreement to

10 Thus, while the courts lack jurisdiction to interpret labor

agreements, they may decide the merits of any case where it is

apparent that no bona fide contract issue is presented because the

position of the party relying on the agreement is frivolous or not

even arguable. See, e.g., Air Line Pilots Ass’n v. Trans World

Airlines, 713 F.2d 940, 948 (2d Cir. 1983), aff'd in part, rev’d in

part on other grounds sub nom. Trans World Airlines v. Thurston,

469 U.S. 111 (1985); St. Louis S.W. Ry. v. United Transp. Union,

646 F.2d 230, 233 (5th Cir. 1981); Chicago & N.W. Transp. Co. Vv.

United Transp. Union, 656 F.2d 274, 278 (7th Cir. 1981); Inde-

pendent Federation of Flight Attendants v. Trans World Airlines,

655 F.2d 155, 159 (8th Cir. 1981); United Transp. Union v. Penn

Central Transp. Co., 505 F.2d 542, 544 & n.5 (3d Cir. 1974) (per

curiam) ; United Transp. Union v. Baker, 482 F.2d 228, 230 (6th

Cir. 1978).

arbitrate and the duty not to strike [are] construed as

having coterminous application.” Gateway Coal, supra,

414 U.S. at 382; see Boys Markets, Inc. v. Retail Clerks

Union, 398 U.S. 235, 248 (1970). The same balance is

effected by the Railway Labor Act, where the statute

itself effects the exchange of the unions’ right to strike

over minor disputes for the carriers’ duty to arbitrate

those disputes. Chicago River & Indiana R.R., supra, 353

US. at 37.4

Thus, if strikes may indeed be protected under § 212

(b), at a minimum § 212(c) should be construed to in-

corporate the ordinary rule that applies under § 3, and

reject a union’s claim that its strike is justified by § 212

(b) where that claim is obviously insubstantial or friv-

olous. The decision of the Court of Appeals in this case

instead construes § 212(c) of the Safety Act to turn the

well-settled understanding of the role of the courts in de-

termining the arbitrability of labor disputes on its head,

by depriving courts of jurisdiction in any Railway Labor

Act case involving a safety dispute to determine whether

the dispute is arbitrable, and hence whether the strike

is unlawful. Section 212 and its legislative history indi-

cate that Congress could not have intended § 212(c) to

have that effect.

Further, the Act and its legislative history indicate

that § 212(c) was not intended to apply to a carrier’s

claim that a strike is unprotected under the Act, if in

fact Congress intended that the Act could protect strikes.

Section 212(c) on its face is inapplicable to carrier

claims. It applies only to claims arising under § 212(a)

or § 212(b). The only conduct that §§ 212(a) and 212

(b) prohibit in terms is carrier discrimination against

or discharge of employees who exercise rights protected

by the Act. 45 U.S.C. §§ 441(a), (b). Thus, the refer-

1 See also Trans Int’l Airlines, supra, 650 F.2d at 966 (“The

minor dispute arbitration procedure was designed as a substitute

for prearbitration strikes * * *,’’),

}

ence in § 212(c)(1) to “[a]ny dispute, grievance, or

claim arising under this section” refers only to employee

claims of unlawful discrimination or discharge. This

reading is corroborated by § 212(c) (2), which defines the

remedial powers of adjustment boards under the Act, and

states that “in the case of any violation of subsection

(a) or (b) of this section, the Adjustment Board * * *

shall, where appropriate, award backpay to the aggrieved

employee and order such employee reinstated to his posi-

tion.” 45 U.S.C. § 441(c) (2) (emphasis added). There

is no corresponding remedy for an employer subjected to

huge losses by a strike the safety justification of which

turns out to have been asserted in bad faith, or that

otherwise fails to meet the conditions that § 212(b) (1)

imposes. Nor is there any mechanism by which the ad-

justment board may prevent the harm to a carrier’s

shippers and passengers that such a strike would inflict.

The legislative history of § 212(c) confirms that it

was intended to apply only to employee claims. As origi-

nally introduced in the House of Representatives, § 212

States shall have original jurisdiction over any civil ac-

tion based on a dispute, grievance, or claim arising under

this section.” H.R. 6497, supra, at 4. The railroad in-

dustry objected to this provision because under the Rail-

way Labor Act, a claim that a carrier has discriminated

against an employee for refusing to work under unsafe

conditions has traditionally been regarded as a minor

dispute that must be heard by an adjustment board un-

der § 3 of the Act. House Hearings, supra, at 106. The

House Committee accordingly dropped the provision for

district court jurisdiction, and instead provided that

grievances under the Act should be submitted to adjust-

ment boards, to ensure that the employee protections pro-

vided by § 212 would “be enforced solely through the ex-

isting grievance procedures provided for in Section 3 of

the Railway Labor Act.” H.R. Rep. No. 96-1025, supra,

at 8. Similarly, the Senate Committee recognized that

“under current law rail employees * * * can seek * * *

protection through normal grievance procedures estab-

lished under Section 3 of the Railway Labor Act.” 126

Cong. Rec. at 27056. Thus, as Senator Cannon stated,

§ 212(c) was intended merely to “codify the protection

granted pursuant to these procedures by the [adjust-

ment] boards.” Jd. It was not intended to apply to a

carrier’s claim that a strike called under § 212(b) fails

to meet the statutory conditions for protection.

The legislative history of § 212(b) also negatives any

inference that Congress could have intended the Federal

Railroad Safety Act both to protect strikes that meet

the statutory conditions for protection, and at the same

time to deprive the courts of jurisdiction to enforce those

conditions. The version of § 212(b) that was originally

introduced in the House would have protected any rail-

road employee for refusing to work in conditions that he

“reasonably believes present an imminent danger to his

safety and health.” H.R. 6497, supra, at 3. The House

Committee changed the proposed legislation in response

to objections from the railroad industry. The industry

objected to the standard of “imminent danger * * * to

safety and health,” characterizing it as “a net cast so

broadly” that it would authorize employees “to interrupt

railroad operations in a very, very serious way” over

problems as trivial as bad weather, even though railroads

as common carriers have a duty to operate “in all kinds

of weather.” House Hearings, supra, at 70; see also id.

at 104, 173. To remedy this problem, Congressman Mat-

sui suggested adoption of a “more stringent” standard

requiring that “a real danger of death or serious injury

must exist * * * before the employee has a right to

leave.” Id. at 194. The House Committee responded by

recommending the requirements of “good faith,” the lack

of a “reasonable alternative,” the risk of “imminent dan-

ger of death or serious injury,” and prior notice to the

earrier, all of which Congress adopted in § 221(b) (1).

45 U.S.C. § 441(b) (1). These provisions afford no pro-

tection whatever from disruptive strikes called without

any good faith justification, unless good faith and the

other statutory requirements can be determined by the

courts, since adjustment boards have no power under the

Act to provide any remedy to carriers or the public.

Congress intended the § 212(b)(1) requirements to

prevent the harm that might result to a carrier’s opera-

tions if even a few employees unjustifiably refused to

perform their jobs, as the legislative history just discussed

indicates. A general strike and picketing by an entire

craft of employees obviously presents a far more serious

harm, since it may well shut the carrier down entirely,

as the strike in this case did. The Court of Appeals’

holding that the federal courts lack jurisdiction to deter-

mine that a strike ostensibly justified by the Act is in fact

unprotected is contrary to the unambiguous intention of

Congress, evinced in the legislative history, to protect

carriers from unnecessary interruptions of their opera-

tions.”

12 The decision below is also irreconcilable with the decision of

this Court in Gateway Coal, supra. In Gateway Coal, the Court

construed § 502 of the Labor Management Relations Act, which pro-

vides that the refusal of an employee or employees to work under

“abnormally dangerous conditions” may not be deemed an unlawful!

strike, but, in contrast to § 212 of the Safety Act, contains no ex-

plicit standards defining the circumstances in which refusal to work

may be justified. Compare 45 U.S.C. § 441(b) with 29 U.S.C. § 148.

This Court, however, held that under § 502 a mere “honest belief”

of danger was insufficient to excuse an unlawful strike over an

arbitrable safety dispute:

“Absent the most explicit statutory command we are unwilling

to conclude that Congress intended the public policy favoring

* * * peaceful resolution of labor disputes to be circumvented

by so slender a thread as subjective judgment, however honest

it may be.” 414 U.S. at 386.

The decision of the Court of Appeals in this case does precisely

what this Court refused to do in Gateway Coal. Under the decision

The practical effect of the decision below is to give

unions the power to inflict economic damage upon a car-

rier, for which there can be no remedy, even where no

bona fide safety issues apply. The Court of Appeals held

that the carrier’s action for damages must be dismissed

because the entire controversy over a Federal Railroad

Safety Act strike must be resolved by an adjustment

board. (App. 18a). Adjustment boards have no power

under the Safety Act to grant damages to a carrier: their

remedial powers apply only to violations of the Act by

carriers. See 45 U.S.C. § 441(c) (2).1% Moreover, under

the decision below, any strike injunction granted under

§ 212 must be conditioned upon the carrier’s taking some

action to meet the union’s demands, upon the mere asser-

of the Court of Appeals, a railroad union’s mere assertion that a

strike is protected by the Federal Railroad Safety Act defeats the

jurisdiction of any federal court to determine whether the strike

is lawful. The decision below thus necessarily allows the public

policy in favor of peaceful dispute resolution and against strikes,

which is even stronger under the Railway Labor Act than under

the National Labor Relations Act, to be “circumvented” and set at

naught by “subjective judgment” of the union, whether honest or

not. No “explicit statutory command” justifies the decision below.

To the contrary, the Federal Railroad Safety Act explicitly com-

mands that no refusal by a railroad employee to work may be justi-

fied on the basis of a subjective belief that his working conditions

are unsafe. See 45 U.S.C. § 441(b).

13 Similarly, under §3 of the Railway Labor Act, there is no

provision for them to award damages to carriers. See 45 U.S.C.

§ 153 First(o). The federal courts, by contrast, have the power to

award damages to carriers for unlawful strikes. See, e.g., Brother-

hood of Railroad Trainmen v. Toledo, Peoria & Western R.R., 321

U.S. 50, 63 (1944) ; Denver & Rio Grande k._”. v. Brotherhood of Rail-

road Trainmen, 58 L.R.R.M. 2568 (D. Colo. 1965); rev’d on other

grounds, 367 F.2d 137 (10th Cir. 1966), rev’d, 387 U.S. 556 (1967) ;

Montgomery Ward & Co. Vv. Northern Pacific Terminal Co., 128

F. Supp. 475, 500 (D. Ore. 1953); Toledo Ann Arbor & Northern

Michigan R.R. v. Pennsylvania Co., 54 F. 730, 740 (C.C.N.D. Ohio)

(Taft, J.), appeal dismissed sub nom. In re Lennon, 150 U.S. 393

(1893).

tion that a safety hazard exists. (App. 17a). This too

may well impose substantial and unrecoverable costs upon

the carrier.

The economic weapon created by the decision below

could be abused by unions to enforce their demands in

labor disputes unrelated to safety, much like the pro-

posed amendment to the Federal Railroad Safety Act

that would have allowed unions to sue carriers for al-

leged safety infractions. See H.R. 6497, supra. Congress

wisely rejected that provision after it was warned of the

“corrosive impact” it would have on labor relations in

the railroad industry. House Hearings, supra, at 69.

The decision below threatens precisely the destabilizing

effect on railroad labor relations that Congress was at

pains to avoid.

In sum, the decision below patently invites railroad

strikes, by holding not only that they may be protected

under the Federal Railroad Safety Act, but also that

courts are powerless to grant any remedy to carriers

damaged by strikes that are not so protected. It grants

to railway labor a potent one-sided weapon that, if un-

checked, will undermine the effectiveness of the Railway

Labor Act’s orderly and balanced procedures for resolving

labor disputes. It eviscerates the carefully-crafted pro-

tections Congress wrote into the Safety Act to prevent

just such a result. Review by this Court is thus war-

ranted to ensure that the “corrosive impact” threatened

by the decision below is not permitted to befall the labor

relations of this vital national industry.

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

RALPH J. Moore, JR.

(Counsel of Record)

D. EUGENIA LANGAN

SHEA & GARDNER

1800 Massachusetts Avenue, N.W.

Washington, D.C. 20036

(202) 828-2000

Counsel for Petitioner

CONCLUSION

Date: December 1, 1986

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 86-1039

BOSTON AND MAINE CORPORATION,

Petitioner, Appellee,

R.M. LENFEST, JR., INDIVIDUALLY AND AS

CHAIRMAN OF THE GENERAL COMMITTEE OF ADJUSTMENT,

UNITED TRANSPORTATION UNION (7'), et al.,

Respondents, Appellants.

Appeal from the United States District Court

for the District of Massachusetts

[Hon. Andrew A. Caffey, U.S. District Judge]

Before

Coffin and Bowes, Circuit Judges,

and Maletz,* Senior Judge

John G. DiPersia with whom George J. Cahill, Jr. and

Cahill, Goetsch & DiPersia, P.C. were on brief for

appellants.

Kinga M. LaChapelle with whom John E. O’Keefe was

on brief for appellee.

September 2, 1986

* Of the United States Court of International Trade, sitting by

designation.

BOWNES, Circuit Judge. Respondents-appellants, the

General Committee of Adjustment of the United Trans-

portation Union (the General Committee) and its in-

dividual officers and local chairmen, appeal an order of

the district court preliminarily enjoining them from “en-

gaging in a general strike or refusing to work”

alleged hazardous conditions on the railroad of petitioner-

appellee Boston and Maine Corporation (B&M). Appel-

lants claim that a work stoppage on November 4, 1985,

which halted freight operations and left 25,000 com-

muters without service to Boston, was a valid refusal to

work under hazardous conditions pursuant to § 10(b) of

the Federal Railroad Safety Act (FRSA), 45 U.S.C.

§ 441(b) (1982). Appellants assert that a work stoppage

by all United Transportation Union (UTU) conductors

and trainmen was called because the conductors and

trainmen were faced with a system-wide, life-threatening

danger due to the B&M’s failure to provide consistent

flagging protection at construction sites elong the rail-

road tracks.

The district court held that the work stoppage was not

a protected FRSA § 10 refusal to work, but was a strike

over a “minor dispute” under the Railway Labor Act

(RLA), 45 U.S.C. § 153 (1982), and was properly en-

joinable upon B&M’s showing of irreparable harm.

Brotherhood of Railroad Trainmen v. Chicago River &

Indiana Railroad Co., 353 U.S. 30, 42 (1957). The court

held alternatively that even if the safety dispute was

covered by § 10 of the FRSA, appellants had failed to

comply with its notice provision and therefore the strike

was not protected by it. Boston and Maine Corp. v. Len-

fest, 622 F. Supp. 942, 948 (D. Mass. 1985). Appellants

argue: (1) that the district court order should be over-

turned because the work stoppage was a § 10 refusal to

work; (2) that the question of compliance with the stat-

ute should not have been decided by the district court,

but by the National Railroad Adjustment Board pur-

over —

suant to §10(c) of the FRSA, 45 U.S.C. § 441(c) (1),

which makes any “dispute, grievance or claim” subject to

resolution under the procedures set forth in 45 U.S.C.

§ 153; and (3) that §4 of the Norris-LaGuardia Act,

29 U.S.C. § 104 (1982), deprives the court of jurisdic-

tion to enjoin a § 10 work stoppage. As far as we can

tell, this is a case of first impression.

Background

The heart of this case is a dispute over the adequacy

of flagging signals along the railroad tracks of the B&M.

The B&M freight operations in six Northeastern states,

and passenger operations in three. At any given time

private contractors are engaged in repair and mainte-

nance work at several places along the line, and the

locations shift day to day, even hour by hour. Flagging

crews are assigned by the B&M to the construction sites

so as to warn approaching trains and avert accidents

between trains and construction machinery along the

tracks. The B&M’s policy is that no construction should

proceed unless flagging is provided.

According to appellants, the safety issue arose when

the General Committee Chairman, R.M. Lenfest, Jr.

(Lenfest), began receiving “numerous” complaints in the

months prior to November 1985 that train crews were

passing construction sites where there was no flagging

protection. The lack of flagmen followed no particular

pattern, and sometimes a particular site would have flag-

men one day and none the next. Lenfest claims to have

repeatedly expressed his concern over the danger involved

to Roger Audette, B&M’s official in charge of assigning

flagging crews. On November 3, 1985, Lenfest met with

the local General Committee chairmen, and discussed the

flagging situation. He testified that “it became obvious

that any further discussion was an exercise in futility,”

and he was concerned that “to do nothing would be to

invite disaster.” He stated that he decided to act to pro-

tect the Union members. Lenfest called a work stoppage

over the hazardous conditions, and beginning at 4:00

A.M. on November 4, the Union conductors and train-

men set up picket lines. Freight and commuter opera-

tions were disrupted by the work stoppage, and B&M

sought a temporary restraining order in federal district

court. After a hearing on November 4, the afternoon of

the work stoppage, a temporary restraining. order was

entered by Judge Murray against the Union. B&M then

filed a civil complaint seeking damages and a motion for

a preliminary injunction. After a further hearing on

November 14, Chief Judge Caffrey granted B&M’s mo-

tion for a preliminary injunction in a memorandum and

order issued on November 27.

Application of § 10 of the FRSA to This Dispute

Section 10 of the FRSA states in pertinent part as

follows:

Protection and rights of employees

(a) Filing of complaints; institution of proceedings;

testimony

A common carrier by railroad engaged in inter-

state or foreign commerce may not discharge or in

any manner discriminate against any employee be-

cause such employee, whether acting in his own be-

half or in a representative capacity, has—

(1) filed any complaint or instituted or caused

to be instituted any proceeding under or related to

the enforcement of the Federal railroad safety laws;

(2) testified or is about to testify in any such

proceeding.

(b) Refusal to work under hazardous conditions

(1) A common carrier by railroad engaged in

interstate or foreign commerce may not discharge

or in any manner discriminate against any em-

ployee for refusing to work when confronted by a

hazardous condition related to the performance of

the employee’s duties, if—

(A) the refusal is made in good faith and no

reasonable alternative to such refusal is available

to the employee;

(B) the hazardous condition is of such a nature

that a reasonable person, under the circumstances

then confronting the employee, would conclude that—

(i) the condition presents an imminent danger of

death or serious injury; and

(ii) there is insufficient time, due to the urgency

of the situation, to eliminate the danger through

resort to regular statutory channels; and

employer of his apprehension of such hazardous con-

dition and of his intention not to perform further

work unless such condition is corrected immediately.

(2) The provision of this subsection shall not ap-

ply to security personnel employed by a railroad to

protect persons and property transported by such

railroad.

(1) Any dispute, grievance, or claim arising un-

der this section shall be subject to resolution in ac-

cordance with the procedures set forth in section 153

of this title.

(2) In the case of any violation of subsection (a)

or (b) of this section, the Adjustment Board (or

any division or delegate thereof) or any other board

of adjustment created under section 153 of this title

shall, fwhere appropriate, award backpay to the ag-

grieved employee and order such employee reinstated

to his position.

45 U.S.C. § 441.

The first issue is whether this was really a refusal to

work under hazardous conditions. Appellees contend that

“Tb]Jased on the evidence the court in effect found that

the reason for the work stoppage was not the existence

of a hazardous condition as claimed by respondents,” and

that therefore we cannot find that this was a § 10(b)

work stoppage unless the district court was clearly er-

roneous. There is no such explicit or implicit finding in

the district court opinion. The only reason given by ap-

pellants for the work stoppage was that it was called

because of the danger posed by inconsistent flagging.

Nor do appellees allege any other reason for the work

stoppage.’ In ruling that the work stoppage was a Rail-

way Labor Act “minor” dispute, the district court ex-

pressly treated it as a strike over safety, referring to

“the dispute over the B&M’s alleged failure to provide

flagging in this case” and to “a legal right to safe work-

ing conditions.” Boston & Maine Corp. v. Lenfest, 622 F.

Supp. at 946. The court also relied on Missouri-Kansas-

Texas Railroad Co. v. Brotherhood Railroad Trainmen,

342 F.2d 298 (5th Cir. 1965), which involved a concerted

refusal to work under hazardous conditions. Boston and

Maine Corp. v. Lenfest, 622 F. Supp. at 946.

The next issue is whether § 10 applies to a collective

refusal to work under hazardous conditions called by an

employee bargaining unit, or whether it creates a right

that can be exercised only by an employee acting individ-

1 Approximately six months earlier, on May 3, 1985, the Union

had filed a Railway Labor Act §6 notice, 45 U.S.C. § 156 (1982),

seeking to revise its collective bargaining agreement with the B&M

to provide that only United Transportation Union members be

assigned as flagman, but it has not been suggested to us that the

safety issue and the work stoppage that are the subject of this

appeal are part of that § 6 dispute.

ually. The district court held that § 10 creates a right to

refuse to work under hazardous conditions that can be

exercised only individually, when an employee is per-

sonally faced with danger. The district court’s holding

was based on the literal terms of the statute. In urging

affirmance appellees also point to the language of

§10(b), arguing that since it refers to “employees” and

not to “employees” or “employee representative,” it con-

fers only a personal right.

Appellants make two valid arguments for rejecting a

literal reading of the statute. First, they argue that

whether or not the statute refers to employee or employ-

ees is irrelevant because 1 U.S.C. §1 (1982), which

governs the construction of federal statutes, states in

pertinent part:

In determining the meaning of any Act of Congress,

unless the context indicates otherwise—

—words importing the singular include and apply

to several persons, parties, or things.

Appellants’ second argument is that even though the

statute is silent as to union representatives, this court

must interpret it based on the “practical realities of rail-

roading” and the nature of the danger involved. Because

the inconsistent flagging could resuli in a train not being

warned of construction at any point in the B&M system,

every conductor and trainman was put at risk. But since

many ,{ the train crews had not yet encountered an

unflagged construction site, they could not be expected

to know the extent of the danger they faced. It was only

the General Committee, which had gathered flagging in-

formation from B&M’s entire operations, that understood

the nature and extent of the system-wide danger posed

by inconsistent application of the railroad’s flagging pol-

icy.”

2 Appellants also advanced a third argument based on an alleged

connection between the FRSA and OSHA. We see no need to

discuss this argument.

First, we find that since the context of § 10 does not

confine the word “employee” to the singular it applies

to groups of employees as well as an individual employee.

1 U.S.C. § 1.

Second, we recognize that “a statute’s plain language

is the primary indicator of its meaning,” Massachusetts

Financial Services, Inc. v. Securities Investor Protection

Corp., 545 F.2d 754, 756 (1st Cir. 1976), cert. denied,

431 U.S. 904 (1977), but in light of the stated purpose

and design of $10 its language is not so “plain” as to

control, without more, the precise question posed by the

facts of this case. See United States v. Mariea, No. 85-

1770, slip op. at 8-9 (1st Cir. June 27, 1986); cf.

Landreth Timber Co. v. Landreth, 105 §. Ct. 2297, 2501

(1985) (starting point in statutory construction is lan-

guage of statute); Blum v. Stenson, 465 U.S. 886, 896

(1984) (where resolution of question of federal law

turns on statute and intention of Congress, Court looks

first to statutory language and then to legislative history

if statutory language is unclear); Bob Jones University

v. United States, 461 U.S. 574, 586 (1983) (“a court

should go beyond the literal language of a statute if

reliance on that language would defeat the plain purpose

of the statute”). Congress expressed its purpose starkly

and succinctly: “The Committee strongly believes em-

ployees should not be forced to choose between their lives

and their livelihoods.” H.R. Rep. No. 1025, 96th Cong.,

2d Sess. 8, reprinted in 1980 U.S. Code Cong. & Ad.

News 3830, 3832. And the Supreme Court has instructed

that “safety legislation is to be liberally construed to

effectuate the congressional purpose.” Whirlpool Corp. V.

Marshall, 445 U.S. 1, 13 (1980) (citing cases). We

therefore construe the statute taking its purpose and leg-

islative history as well as its words into consideration.

The main purpose of the statute is to allow employees

faced with the risk of death or serious injury to refuse

to work without fear of retaliatory firing by the em-

ployer. On its face, §10 apparently assumes that an

employee will be in a position to recognize the risk. Here,

however, an individual employee working on a train was

not in a position to know about the risk until it was too

late or the danger has passed. Only the Union officials

who were privy to the system-wide defective and incon-

sistent flagging protection were in a position to recognize

the potential danger to which all employees working on

trains were exposed. To hold that union leaders can call

for a concerted work stoppage in such circumstances only

at the risk of being found liable for instigating an il- -

legal strike is to place them in the position of having to

choose between their own welfare and the lives of the

employees. This is contrary to what Congress intended.

We hold that where hazardous working conditions are

the result of a system-wide failure to provide adequate

protection so that employees are in danger of death or

serious injury without knowing it, and the Union is

aware of such danger, the Union may call a concerted

work stoppage under §10(b) to protect the lives and

safety of the employees.

We find further support for our holding in the Su-

preme Court’s reading of an analogous labor statute,

$ 502 of the Labor Management Relations Act, 29 U.S.C.

§ 143 (1982). Section 502 provides in part that

the quitting of labor by an employee or employees

in good faith because of abnormally dangerous con-

ditions for work at the place of employment of such

employee or employees [shall not] be deemed a strike

under this chapter.

The court interpreted this language, which like § 10(b)

is silent on the role of unions, to include a right to a

work stoppage called by a union. The Court stated in an

eight-member majority:

We agree .. . that a work stoppage called solely to

protect employees from immediate danger is author-

ized by § 502 and cannot be the basis for either a

10a

damages award [for breach of a contractual no-

strike agreement] or a Boys Markets injunction [to

enjoin a strike and order arbitration where arbitra-

tion is provided for in the collective bargaining

agreement].

Gateway Coal Co. v. United Mine Workers of America,

414 U.S. 368, 385 (1974). Additional support is also

found in a case where the majority of a panel of the

Sixth Circuit rejected a conclusion by one judge, similar

to that of the district court in this case, that § 502 is

“addressed solely to the rights of individuals” because it

“does not mention a labor union.” Clark Engineering &

Construction Co. v. United Brotherhood of Carpenters

and Joiners of America, 510 F.2d 1075, 1079 (6th Cir.

1975) (Weick, J.). Relying on Gateway, two judges on

the panel agreed that under § 502 it is not an impermis-

sible secondary boycott for a union to protest hazardous

job conditions by picketing at a work entrance used by

nonunion workers. /d. at 1084 (McCree, J., concurring;

Edwards, J., dissenting).

The next issye is jurisdictional. The district court

found that “[e]ven if the statute [§ 10(b)] did apply to

this case, respondents failed to comply with the require-

ment of subsection (b)(1)(C) to notify the B&M of

any specific hazardous conditions existing on the railroad

and of their intention not to perform further work un-

less such condition is corrected immediately.” Boston and

Maine Corp. v. Lenfest, 622 F. Supp. at 948. The ques-

tion is whether the district court had jurisdiction to make

this finding.

Section 10(c) of the FRSA states plainly that “[a]ny

dispute, grievance, or claim arising under this section

shall be subject to vesolution in accordance with the pro-

cedures set forth in section 153 of this title.” 45 U.S.C.

§ 441(c) (emphasis added). It does not state “any valid

dispute,” or “any dispute for which the conditions of this

section are met.” Section 153 (45 U.S.C. § 153) provides

for the settlement of railroad Labor disputes by the Na-

— es Oe ae

lla

tional Railroat Adjustment Board. The House Report

that accompanied the FRSA is clear, “[{t]he Committee

intends this to be the exclusive means for enforcing this

section.” H.R. Rep. No. 1025, 1980 U.S. Code Cong. & Ad.

News at 3841. If the applicability of Section 10 of the

FRSA depended on the findings of fact made by a dis-

trict court, this would render the §10(c) requirement

meaningless. The Board would have to follow the district

court’s findings of fact and could do nothing but deter-

mine a remedy. Such a bifurcated resolution of disputes

over hazardous working conditions would vitiate a pro-

vision designed to provide speedy and final nonjudicial

resolution. Accordingly, we find that the district court

was without jurisdiction to make findings of fact in this

case as to the adequacy of notice given to the B&M. This

entire dispute, including the nature of the hazard faced,

whether the Committee complied with the statutory re-

quirements of notice, and the retaliatory actions of the

B&M in firing the leaders of the work stoppage and

disciplining others, must be submitted to the National

Railroad Adjustment Board under 45 U.S.C. § 153.

Availability of Injunctive Relief

Section 4 of the Norris-LaGuardia Act deprives fed-

eral courts of “jurisdiction to issue any restraining order

or temporary or permanent injunction in any case in-

volving or growing out of any labor dispute.” 29 U.S.C.

§ 104.* Despite the broad, explicit language of the Act

® The provision states more fully:

No court of the United States shall have jurisdiction to issue

any restraining order or temporary or permanent injunction in

any case involving or growing out of any labor dispute to

prohibit any person or persons participating or interested in

such dispute (as these terms are herein defined) from doing,

whether singly or in concert, any of the following acts:

(a) Ceasing or refusing to perform any work...

(i) Advising, urging, or otherwise causing or inducing with-

out fraud or wiolence the acts heretofore specified ... .

29 U.S.C. § 104.

12a

the Supreme Court has construed two major statutes to

grant implicitly to federal courts jurisdiction to issue

labor injunctions.

In Brotherhood of Railroad Trainmen Vv. Chicago River

& Indiana Railroad Co., 353 U.S. at 42, the Court held

that there is jurisdiction to issue injunctive relief where

the RLA applies to a dispute and provides the process for

resolving it. Consequently, during either a § 3 (45 U.S.C.

§ 153) “minor” dispute* or a $6 (45 U.S.C. § 156)

“major” dispute® resolution proceeding under the RLA,

a district court may enjoin a strike and prevent either

party from altering the status quo during the pendency

of the proceedings. Carbone v. Meserve, 645 F.2d 96, 98

(Ist Cir.), cert. denied, 454 U.S. 859 (1981). If the

§ 6 nonbinding procedures for a major dispute are ex-

hausted without resolution, then under the Norris-

LaGuardia Act the district court no longer has jurisdic-

tion to continue to enjoin the strike or employer retalia-

4A “minor” dispute is one which

contemplates the existence of a collective agreement already

concluded or... 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 situation or to

an omitted case. In the latter event the claim is founded upon

some incident oz the employment relation, or asserted one... .

In either case the claim is to rights accrued, not merely to have

new ones created for the future.

Elgin, Joliet & Eastern Railway Co. v. Burley, 325 U.S. 711, 723

(1945).

5 A “major” dispute

relates to disputes over the formation of collective agreements

or efforts to secure them. They arise when 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.

Elgin, Joliet & Eastern Railway Co. v. Burley, 325 U.S. at 723.

13a

tion. Missouri-Kansas-Texas Railroad Co. vy. Brotherhood

of Railroad Trainmen, 342 F.2d at 299. Since resolution

of a minor dispute is by binding arbitration, however, an

injunction effectively ends all prospects of a strike.

Carbone v. Meserve, 645 F.2d at 98.

In Boys Markets, Inc. v. Retail Clerks Union, Local

770, 398 U.S. 235, 253 (1970), the Supreme Court held

that there is jurisdiction to issue injunctive relief where

a labor dispute is covered by an agreement to arbitrate

governed by § 301 of the Labor Management Relations

Act.* In such a case the district court may issue an in-

junction “under ordinary principles of equity” pending

arbitration of the dispute according to the agreement.

Td. at 254.

In this case the district court asserted jurisdiction to

enjoin the appellants’ work stoppage because it held the

dispute at issue was a minor dispute under the RLA.

The district court relied on the case of Missouri-Kansas-

Texas Railroad Co. v. Brotherhood of Railroad Trainmen,

342 F.2d 298, in finding this to be a minor dispute. Al-

though the M-K-7' Railroad case did hold squarely that

a union-wide walkout over safety was a “minor” dispute

and therefore enjoinable, it was decided some fifteen

years before the enactment of the FRSA. If a work

stoppage is a protected refusal to work because of haz-

ardous conditions under § 1¢(b) of the FRSA, it cannot

also be a minor dispute over the terms and conditions

of employment under §3 of the RLA. Because resolu-

® Section 301 (a) states:

Suits for violation of contracts between an employer and a

labor organization representing employees in an industry af-

fecting commerce as defined in this chapter, or between any

such labor organizations, may be brought in any district court

of the United States having jurisdiction of the parties, with-

out respect to the amount in controversy or without regard to

the citizenship of the parties.

29 U.S.C. §185(a) (1982).

l4a

tion of this case is governed by § 10(c) of the FRSA and

not § 3 of the RLA, the district court did not have juris-

diction to grant an injunction under the RLA. And,

since the dispute in this case is not arbitrable under a

collective bargaining agreement between the parties,

there is no jurisdiction to enter a Boys Markets injunc-

tion. See Buffalo Forge Co. v. United Steelworkers of

America, AFL-CIO, 428 U.S. 397, 403-404 (1976). If

there is jurisdiction to issue an injunction it must come

from the FRSA.

In the Chicago River and Boys Markets cases, the Su-

preme Court found limited federal jurisdiction to enter

labor injunctions despite §4 of the Norris-LaGuardia

Act in order to accommodate § 4 and its purposes with

newer federal labor statutes and policies. Boys Markets,

398 U.S. at 250; Chicago River, 353 U.S. at 40. I1 Boys

Markets, the Court carefully explained why the history

of the enactment of labor legislation made it the task

of the courts to accommodate, to reconcile the older

[labor] statutes with the more recent ones.” Congres-

sional labor policy had shifted, explained the Court,

“without extensive revision of many of the older enact-

ments.” 398 U.S. at 250-51. In Boys Markets the task

was to accommodate “the literal terms of §4 of the

Norris-LaGuardia Act ... to the subsequently enacted

provisions of § 301(a) of the Labor Management Rela-

tions Act and the purposes of arbitration.” /d. at 250.

The Court held that where an employer sought to en-

force an agreement to arbitrate against a union that had

gone on strike in violation of a no-strike agreement, in-

junctive relief would be available for use by a federal

court to halt such a strike and prevent irreparable in-

jury. The Court reasoned that

the unavailability of equitable relief in the arbitra-

tion context presents a serious impediment to the

congressional policy favoring the voluntary estab-

lishment of a mechanism for the peaceful resolution

of labor disputes, [and] the core purpose of the

15a

Norris-LaGuardia Act is not sacrificed by the limited

use of equitable remedics to further this important

policy....

Id. at 253. In the earlier Chicago River case the Court

had accommodated § 4 of the Norris-LaGuardia Act to

§ 3 of the Railway Labor Act. As explained by Justice

Brennan in Boys Markets, the Court in Chicago River

was

confronted with a peaceful strike which violated the

statutory duty to arbitrate imposed by the Railway

Labor Act. The Court concluded that a strike in

violation of a statutory arbitration duty was not

the type of situation to which the Norris-LaGuardia

Act was responsive, that an important federai policy

was involved in the peaceful settlement of disputes

through the statutorily mandated arbitration proce-

dure, that this important policy was imperiled if

equitable remedies were not available to implement

it, and hence that Norris-LaGuardia’s policy of non-

intervention by the federal courts should yield to the

overriding interest in the successful implementation

of the arbitration process.

Boys Markets, 398 U.S. at 251-52.

We think the underlying principles of Chicago River

and Boys Markets apply to this case. Pursuant to the

teaching of the Supreme Court, we must accommodate

the venerable Norris-LaGuardia Act with the purpose of

the recently enacted FRSA. Congress intended that § 10

(b) disputes arising because of refusals to work under

hazardous conditions be submitted under § 10(c) to swift

resolution by the nonjudicial, binding procedures of § 3

of the RLA. But when a railroad’s entire work force

exercises its rights under § 10 to refuse to work under

hazardous conditions, the work stoppage takes on the

character of a contest of economic power, and the avail-

ability of arbitration procedures to mediate the dispute

may be effectively nullified by the economic and social

l6a

pressures brought to bear. The present case presents

this problem because the B&M is in a precarious financial

condition and claims it would quickly become insolvent

if a total work stoppage were to continue. Thus, if an

injunction were not available in this case, and B&M col-

lapsed or was forced by pressure to concede to the Union, .

the dispute would never be resolved as Congress intended.

As the Supreme Court has said,

[rJelegating safety disputes to the arena of economic

combat offers no greater assurance that the ultimate

resolution will ensure employee safety. Indeed, the

safety of the workshop would then depend on the

relative economic strength of the parties rather than

on an informed and impartial assessment of the

facts.

Gateway Coal Co. v. United Mine Workers of America,

414 U.S. at 379. Only the availability of injunctive re-

lief can ensure that the FRSA will operate consistently

with its purpose—which is to give employees the right

to avoid hazardous conditions on the railroad, and to

channel any such dispute into binding arbitration. The

core purpose of the Norris-LaGuardia Act, which was to

protect the young union movement from interference by

federal courts guided only by their own concepts of

labor-management relations “is not sacrificed by the lim-

ited use of equitable remedies to further [the] important

[congressional] policy” behind the FRSA. Cf. Boys Mar-

ket, 398 U.S. at 253.

We hold that the Norris-LaGuardia Act does not de-

prive federal courts of jurisdiction to order injunctive

relief to prevent a refusal to work by an entire work

force under § 10 of the FRSA from becoming economic

combat and thereby preventing resolution of the dispute

under the statutory procedures. The standard principles

of equity apply to a request for injunctive relief in this

setting:

hi seneiaeeneenmaaeaineemauamamaiaiaaiitill

17a

whether breaches are occurring and will continue,

or have been threatened and will be committed;

whether they have caused or will cause irreparable

injury to the employer; and whether the employer

will suffer more from the denial of an injunction

than will the union from its issuance.

Boys Market, 398 U.S. at 254 (quoting Sinclair Refining

Co. v. Atkinson, 370 U.S. 195, 228 (1962) (Brennan, J.,

dissenting) ).

An injunction in a railway labor dispute over hazard-

ous conditions is an extraordinary remedy. When a § 10

refusal to work occurs involving only a few employees

it is unlikely that a railroad will be able to show ir-

reparable harm will result if the stoppage is not en-

joined. And when an injunction against a work stoppage

is sought by a railroad, the court must also consider the

alleged hazardous condition facing the employees. An in-

junction should not issue if it forces the employees, upon

pain of contempt, to return to work and face a hazard-

ous condition that the FRSA was intended to allow them

to avoid. In most cases where an injunction enters, then,

some provision must be made for protecting the employ-

ees. Cf. Hanna Mining Company v. United Steelworkers

of America, 464 F.2d 565 (8th Cir. 1972) (per curiam)

(a carefully crafted Boys Markets injunction was issued

in the context of a safety dispute that enjoined a union

walkout over hazardous conditions, enjoined continuance

of the hazardous conditions, and ordered resort to arbi-

tration). In this case, since the inconsistent flagging of

construction sites charged by the Union could result in

fatal crashes, the injunction should have included a pro-

vision ordering the railroad to take steps to ensure that

there would be no work at construction sites unless ade-

quate flagging was provided. We note that the appellants

reported to B&M officials a near-hit between a train and

construction machinery at an unfiagged site as late as

November 12, well after the temporary restraining order

had halted the strike on November 4. Since an order to

18a

fill flagging assignments or halt construction only re-

quires B&M to comply with its stated policy it imposes

no significant burden on it. And since a collision caused

by lack of flagging could involve rush hour commuter

trains, the public interest will be served by such an order.

Although there is some indication in the record that

the B&M has corrected the flagging problems, and the

Union claims it has no more reason to strike, the injunc-

tion issue is not moot. We agree with the district court

that these facts did not moot the action because the

Union is free to call a work stoppage again. “The pos-

sibility that [a party] may change its mind in the future

is sufficient to preclude a finding of mootness.” United

States v. Generix Drug Corp., 460 U.S. 453, 456-57 n.6

(1983) ; see United States v. Concentrated Phosphate Ex-

port Association, 393 U.S. 199, 203 (1968) ; Chicago and

Northwestern Transportation Co. v. United Transporta-

tion Union, 656 F.2d 274, 277 (7th Cir. 1981). We also

find that without an injunction the B&M would be free

in the future to allow inconsistent flagging practices.

The need to enjoin any future unsafe flagging practices

is therefore not moot.

We hold that this was not an illegal strike, but was

a protected refusal to work under hazardous conditions

pursuant to §10(b) of the FRSA and that the district

court was without jurisdiction to make findings of fact.

The district court did have jurisdiction to issue a pre-

liminary injunction pending resolution of this dispute

by the National Railroad Adjustment Board. The injunc-

tion shall be modified so that it (1) requires the B&M

to follow its stated policy of flagging at all construction

sites on or near the tracks and (2) enjoins the Union

from calling a work stoppage so long as the B&M fol-

lows this policy. The dispute is referred to the National

Railroad Adjustment Board pursuant to § 3 of the RLA,

45 U.S.C. § 1538. The B&M’s action for damages is dis-

missed.

So ordered. No costs.

Se eal “hall.

19a

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

Civil Action No. 85-4106-C

BOSTON AND MAINE CORPORATION,

Petitioner,

R.M. LENFEST, JR., Individually and as Chairman of The

General Committee of Adjustment, United Transporta-

tion Union (T), etal.,

MEMORANDUM

November 27, 1985

CAFFREY, CH. J.

This is an action for a permanent or, alternatively,

a preliminary injunction brought by the Boston and

Maine Corporation (hereinafter the “B&M”), a common

carrier by railroad engaged in interstate commerce trans-

porting freight in New York, Massachusetts, Maine, New

Hampshire, Vermont and Connecticut and transporting

passengers in Massachusetts, New Hampshire and Ver-

mont, against the General Committee of Adjustment,

United Transportation Union (hereinafter the “Commit-

tee”), Roger M. Lenfest, Jr., Chairman of the Commit-

tee, and others. The Committee is a subordinate body of

the United Transportation Union (hereinafter the

“UTU”), an unincorporated association and a labor orga-

nization which represents persons employed as conductors

and trainmen by the B&M for purposes of collective bar-

gaining under the Railway Labor Act, 45 U.S.C. § 151

et seq. (hereinafter the “RLA”). The B&M claims, and

20a

respondents do not dispute, that this case arises under

the RLA and involves an amount in controversy exceed-

ing the sum of $10,000.00, exclusive of interest, costs and

reasonable attorneys’ fees. The Court’s jurisdiction is

grounded upon 28 U.S.C. §§ 1331 and 1337.

This action stems from a general work stoppage and

picketing on November 4, 1985 by members of the UTU,

ordered by respondent Roger M. Lenfest, Chairman of

the General Committee of Adjustment of the UTU. After

a hearing in the afternoon and early evening of Novem-

ber 4, District Judge Frank J. Murray granted the

B&M’s request for a temporary restraining order enjoin-

ing the respondents from engaging in any such refusal to

work until November 13, 1985. On November 12, 1985

the respondents filed a motion to dismiss the B&M’s com-

plaint on the grounds of lack of subject matter jurisdic-

tion and failure to state a claim. A hearing on the pre-

liminary injunction was held on November 14, 1985. At

the close of the hearing, this Court extended the tem-

porary restraining order pending its decision on the

preliminary injunction.

At approximately 4:00 a.m. on Monday, November 4,

1985, members of the UTU appeared at various locations

throughout the B&M system carrying signs indicating

that the UTU was on strike. The strike caused a cessa-

tion of both B&M’s passenger and freight services during

the entire day of November 4. As a result, approxi-

mately 25,000 regular commuters on the B&M were

forced to either find alternative transportation to and

from work, or to stay home. The B&M also received

numerous complaints about delays in and the lack of

freight service. The strike was called by Lenfest on his

own ipse dixit in his capacity as Chairman of the Com-

mittee. On Sunday, November 3, Lenfest decided to call

the strike after informally discussing a strike with chair-

men of various locals sitting on the Committee. The B&M

received no notice whatsoever prior to the strike that a

2la

work stoppage was to be called or why it was to be

called. I find that Committee Chairman Lenfest made

himself inaccessible to the B&M officials on the morning

of the strike. The first thing the B&M was able to learn

about the reason for the strike was from picketing con-

ductors and trainmen. When questioned by B&M officials,

they stated that it involved safety.

Respondents now assert that the reason Committee

Chairman Lenfest called the strike was that the B&M

repeatedly had failed to provide flagging at construction

sites along the railroad to alert oncoming trains that

there might be workers on or near the tracks. Lenfest

testified at the hearing on November 4 that the B&M’s

failure to provide flagmen at various unidentified times

and locations had created unsafe working conditions.

Lenfest could not recall any such unsafe conditions exist-

ing during the week prior to November 4. On May 3,

1985, approximately six months earlier, the UTU filed

a notice pursuant to Section 6 of the RLA, 45 U.S.C.

§ 156, with respect to the B&M’s failure to provide

flagging protection. A meeting between the B&M and the

UTU over this notice took place on June 5, 1985. At the

present time, the matter is pending before the National

Mediation Board.

At the hearing on November 14, Lenfest testified that

prior to calling the strike he had received reports of a

failure to provide flagging protection at four or five

specific locations. In light of Chairman Lenfest’s inabil-

ity to provide any information on November 4, the day

of the strike, regarding specific instances of the B&M’s

failure to provide flagging protection on its tracks, the

Court is skeptical of his claimed ability to do so on No-

vember 14. While it is doubtful from the record whether

Lenfest knew on November 4 of any presently or re-

cently existing unsafe conditions resulting from the

B&M’s failure to provide flagging protection along the

B&M system, it is clear and I find that Lenfest never

22a

notified anyone at B&M of specific situations of non-

flagging. I find that at certain times prior to Novem-

ber 4 Lenfest expressed his general concern to B&M As-

sistant Manager of Crew Dispatching, Roger Audette,

that flagging be provided and that only UTU members

do the flagging. However, I also find that Lenfest never

reported any specific instances of B&M’s failure to pro-

vide flagging. Audette testified that the last time he

spoke with Lenfest was on October 25 and that Lenfest

did not mention flagging or a possible work stoppage.

Lenfest, by his own admission, never discussed the

flagging *problem with anyone at B&M other than Au-

dette. John Rafferty, the Chief Inspector of the Construc-

tion Department at B&M, testified that it is solely his

responsibility to decide whether to give flagging protec-

tion to a contractor and that no one has ever informed

him that contractors were working without flagging pro-

tection. John J. Cronin, the Senior Director of Labor

Relations at B&M, testified that he was never requested

by anyone to confer over the B&M’s failure to provide

flagging. Cronin is the officer within B&M to whom such

a request should be made.

At the November 14 hearing, William Kempton, a

locomotive engineer for the B&M, testified that on Octo-

ber 2 his train nearly collided with a tractor trailer

carrying railroad ties across the tracks. Kempton testi-

fied that he did not see a flagman anywhere near the

tracks. Leo MacDonald, a yardman for the B&M work-

ing in Boston Yard 14, testified as to a near accident

between a locomotive and a crane in the railroad yard

on November 1. MacDonald testified that the lack of

flagging in the yard created an unsafe condition which

caused him to refuse to work on November 4. Although

MacDonald met with Chairman Lenfest on November 3,

he testified that he did not mention this near accident,

nor did he inform the B&M he would cease working

unless a flagman was placed in the yard.

1m ae all Pe sot Newt age: 2 Peete a

23a

The B&M contends that respondents’ system-wide work

stoppage on November 4 constituted an illegal strike be-

cause respondents failed to employ the dispute resolution

procedure for “minor” disputes set forth in Section 3 of

the RLA, 45 U.S.C. § 153. The B&M seeks an injunction

to temporarily or permanently enjoin the respondents

from striking and picketing. Respondents argue that

their work stoppage was not a strike over either a

“minor” or a “major” dispute and that they therefore

had no legal obligation to proceed under the procedures

set forth in Section 6 or Section 3 of the RLA; they

claim that the work stoppage was a valid refusal to work

under hazardous conditions pursuant io Section 10 of

the Federal Railroad Safety Act, 45 U.S.C. § 441 (herein-

after the “FRSA”), as amended. The respondents vigor-

ously contend that because they have invoked the protec-

tion of Section 10 of the FRSA, this Court does not have

jurisdiction to issue an injunction against the work

stoppage. For the reasons discussed below, the Court

agrees with petitioner B&M and rules that it is entitled

to a preliminary injunction enjoining respondents from

a general work stoppage such as that which Committee

Chariman Lenfest called on November 4.

Section 4 of the Norris-LaGuardia Act deprives fed-

eral courts of “jurisdiction to issue any restraining order

or temporary or permanent injunction in any case in-

volving or growing out of any labor dispute.” 29 U.S.C.

§ 104. Therefore, absent an exception to the Norris-

LaGuardia Act, this Court cannot exercise jurisdiction

to enjoin the respondents in this action. The United

States Supreme Court has held that the Act is not a bar

to an injunction in a case for which the RLA provides

the process for final decision. Brotherhood of Railroad

Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30, 42

(1957). A district court may enjoin either party from

altering the status quo during the course of a Section 6

“major” dispute resolution proceeding. Carbone v. Me-

24a

serve, 645 F.2d 96, 98 (1st Cir. 1981). Once the Sec-

tion 6 procedures have been exhausted, however, the

Norris-LaGuardia Act operates to deprive a district

court of jurisdiction to grant injunctive relief. Missouri-

Kansas-Texas Railroad Company v. Brotherhood of Rail-

road Trainmen, 342 F.2d 298, 299 (5th Cir. 1965).

Where either party to a dispute resorts to self-help in

a “minor” dispute, a district court may enjoin that party

as long as the non-striking party can make the tradi-

tional showing of irreparable harm. Carbone, 645 F.2d

at 98. Therefore, it is necessary to determine whether

this case involves a “major” or a “minor” dispute, or

neither.

Congress distinguished between disputes which are re-

quired to be handled pursuant to Section 6 of the RLA,

45 U.S.C. § 156, and those which are to be handled pur-

suant to Section 3, 45 U.S.C. § 153. The United States

Supreme Court explained the distinction between Section

6 and Section 3 disputes, saying that “major” disputes

are to be resolved under the procedures of Section 6 and

“minor” ones under Section 3:

[A ‘major’ dispute] relates to disputes over the

formation of collective agreements or efforts to se-

cure them. They arise «tere there is no such agree-

ment or where it is so.ght to change the terms of

one, and therefore the issue is not whether an exist-

ing agreement coii-rols 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 class, [minor disputes], contemplates

the existence of a collective agreement already con-

cluded or . . . 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 situation or to an omitted case.

In the latter event the claim is founded upon some

25a

incident of the employment relation, or asserted

one... In either case the claim is to rights ac-

crued, not merely to have new ones created for the

future.

Elgin, Joliet & Eastern Railway Co. v. Burley, 325 U.S.

711, 723 (1945).

The RLA creates a process of noncompulsary adjust-

ment for “major” disputes. Section 6 of the RLA, 45

U.S.C. § 156, sets forth detailed procedures for negotia-

tion, mediation before the National Mediation Board, and

arbitration. If a “major” dispute is not resolved after

the parties have exhausted these dispute resolution

mechanisms, the parties may resort to self help. Where

the dispute is only “minor” the parties are not free to

resort to self-help after exhausting the settlement proce-

dures prescribed by Section 3. Instead, the National

Railroad Adjustment Board has the authority to impose

a binding settlement on the parties. Elgin, Joliet & East-

ern Railway Co., 325 U.S. at 724-728 (1945).

In this case petitioner B&M contends that the dispute

with respect to flagging is a “minor” dispute to be re-

solved by Section 3 binding arbitration and that it has

made a showing of irreparable harm. There is no ques-

tion that respondents have not sought to invoke the dis-

pute resolution machinery of Section 3. The B&M also

asserts that it has made a showing of irreparable harm.

Accordingly, the B&M argues that this Court has juris-

diction to issue an injunction against the November 4

general work stoppage by respondents. Notwithstanding

the UTU’s filing of a Section 6 notice with respect to the

flagging issue on May 3, 1985, the respondents now argue

that the flagging issue is neither a “major” nor a

“minor” one under the RLA. Respondents argue instead

that the November 4 work stoppage was a refusal to

work under hazardous conditions, within the meaning of

Section 10 of the FRSA, 45 U.S.C. § 441, as amended.

26a

Respondents further contend that the exclusive remedy

under Section 10 of the FRSA is binding Section 3

(RLA) arbitration. I rule that the dispute over the

B&M’s alleged failure to provide flagging in this case is

a “minor” dispute, that the petitioner B&M has made a

showing of irreparable harm, and that Section 10 of the

FRSA does not apply to this case. Accordingly, I rule

that this Court has jurisdiction to enjoin the respondents’

general strike.

In Missouri-Kansas-Texas Railroad Co. v. Brotherhood

of Railroad Trainmen, 342 F.2d 298 (1965), the Court

of Appeals for the Fifth Circuit was faced with the ques-

tion whether the alleged failure of the railroad to provide

union employees safe working conditions was a “minor”

or a “major” dispute under the RLA. After reviewing

the Supreme Court’s differentiation of those terms in the

Elgin case, the court held that such a dispute was, in-

deed, a “minor” dispute to be resolved pursuant to Sec-

tion 3 of the RLA. The court explained:

It is true that there is no express written provision

in the existing collective agreement between the par-

ties with respect to the working conditions of which

the defendant complains. But the common law duty

of the plaintiff to use reasonable care in furnishing

its employees with a safe place to work is clear,

[citation omitted].

Id. at 300. A “minor” dispute, to be handled pursuant to

the dispute resolution procedure of Section of the RLA,

involves a claim which, in the words of the Supreme

Court in Elgin, “is founded upon some incident of the

employment relation . . . to rights accrued, not merely to

have new one created for the future.” Zlgin, Joliet &

Eastern Railway Co., 325 U.S. at 723 (1945). In sum-

mary, employees have a legal right to safe working condi-

tions, whether or not the collective bargaining agreement

contains a provision to that effect. That right is an in-

27a

cident of the employment relation and any dispute con-

cerning that right is a “minor” dispute to be processed

under Section 3 of the RLA.

This Court therefore has authority to enjoin a strike

over this dispute if petitioner has made a showing of

irreparable harm. The Court finds from testimony pre-

sented at the November 4 and November 14 hearings,

particularly the testimony of James R. Stoetzel, General

Manager of Commuter Service of B&M, and Erwin R.

Towle, General Superintendent of the Central Division,

Freight of B&M, that B&M has made a sufficient showing

of irreparable harm. Moreover, Peter W. Carr, Vice-

President Finance Officer of the B&M, and Thomas J.

Reilly, also Vice-President Finance Officer of the B&M,

stated in affidavits that the B&M is in financial difficulty

and dependent upon its ability to maintain a sufficient

cash flow on a daily basis. They also stated that con-

tinued work stoppage would cost the B&M approximately

$492,000 per day and make it extremely unlikely that the

B&M could maintain sufficient cash flow to continue its

operations.

Respondents argue in their memoranda of law and at

the November 14 hearing that the November 4 work stop-

page was not a strike over either a “major” or a “minor”

dispute; to the contrary, they argue that it was a refusal

to work under hazardous conditions. Refusals to work

are governed by Section 10 of the FRSA, 45 U.S.C. § 441,

as amended. Section 10 reads in pertinent part:

(b) Refusal to work under hazardous conditions

(1) A common carrier by railroad engaged in in-

terstate or foreign commerce may not discharge or

in any manner discriminate against any employee

for refusing to work when confronted by a hazard-

ous condition related to the performance of the em-

ployee’s duties, if—

28a

(A) the refusal is made in good faith and no rea-

sonable alternative to such refusal is available to

the employee;

(B) the hazardous condition is of such nature

that a reasonable person, under the circumstances

then confronting the employee, would conclude that—

(i) the condition presents an imminent danger of

death or serious injury; and

(ii) there is insufficient time, due to the urgency

of the situation, to eliminate the danger through

resort to regular statutory channels; and

employer of his apprehension of such hazardous con-

dition and of his intention not to perform further

work unless such condition is corrected immediately.

(1) any dispute, grievance, or claim arising under

this section shall be subject to resolution in accord-

ance with the procedures set forth in section 153 of

this title.

Respondents contend that subsection (c) (1), which pro-

vides that “any dispute . . . arising under this section

shall be subject to resolution in accordance with the pro-

cedures set forth in section 153 of this title (Section 3 of

the RLA)”, means that Section 3 binding arbitration is

the exclusive means for resolving disputes over refusals

to work under hazardous conditions. Respondents also

contend, without directing the Court to any supporting

authority, that it is not for this Court to decide whether

the respondents properly fulfilled the terms and condi-

tions of the FRSA. That question, respondents argue, is

exclusively a question for an arbitrator, selected in ac-

cordance with the procedures of Section 3, to answer. —

—_—— oe OS

29a

This Court need not decide whether a district court

could exercise jurisdictic.1 over a dispute in which a

party has properly invoked the protections of 45 U.S.C.

§ 441(b) (1) and (c) (1) because this is not such a case.

The purpose of Section 10 of the FRSA is clear; it pro-

tects a railroad employee from retaliatory action by his

employer for a refusal to work under hazardous condi-

tions, after the employee has apprised the employer,

where possible, of those conditions and informed the em-

ployer that he will not perform further work unless the

conditions are made safe. The Legislative History to Sec-

tion 10 of the FRSA states:

the legislation provides essential protection for the

rights of railroad employees. The legislation ensures

that certain protestions of the Occupational Health

and Safety Act (OSHA) are extended to railroad

employees...

The Committee has been informed of many com-

plaints over the years of harassment in situations

where a worker notifies authorities of violations, tes-

tifies in safety proceedings or institutes an action

against a railroad. According to these complaints,

harassment includes, but is not limited to, firing,

verbal abuse, disproportionate dangerous assign-

ments, and constant and unrelenting supervision.

Such retaliatory actions by employers are not to be

tolerated in the work place. Section 10 of the bill

provides protection for the rail worker under these

circumstances. The legislation would forbid discrimi-

nation against an employee for, among other things,

reporting such violations. Similarly, the legislation

would forbid a railroad from discriminating against

an eiployee who refused to work in hazardous con-

ditions presenting an imminent danger of death or

serious injury. The Committee strongly believes em-

ployees should not be forced to choose between their

lives and their livelihoods.

1980 U.S. Code Cong. and Adm. News § 832.

30a

The purpose of Section 10 of the FRSA was to allow

an employee or employees personally faced with a hazard-

ous situation to walk off a job without the fear of re-

taliation by their employer. In this case, Committee

Chairman Lenfest called a general strike of all B&M

employees controlled by the UTU General Committee of

Adjustment. At the hearing on November 4, the day of

the strike, Lenfest could not tell District Judge Murray

of any particular present or recent unsafe conditions,

resulting from the failure of B&M to provide flagging,

confronting any employee on the B&M system. Lenfest’s

testimony on November 4, which at best could be char-

acterized as evasive, was that he called a general strike

because of past instances where the B&M failed to pro-

vide flagging protection at construction sites along the

B&M system. Ten days later, at the November 14 hear-

ing, Lenfest said he was able to identify four or five loca-

tions along the B&M system where he had received re-

ports in the past that there was inadequate flagging pro-

tection. Furthermore, two B&M employees, William

Kempton and Leo MacDonald, testified that they had wit-

nessed near-accidents resulting from inadequate flagging

protection.

Section 10 of the FRSA was not intended to provide a

shield to protect unions from injunctive relief against

illegal general strikes. Respondents, after engaging in an

illegal general strike, argue that this statute protects

them from injunctive relief. The Court rules that the

statute does not provide such protection. Even if the

statute did apply to this case, respondents failed to com-

ply with the requirements of subsection (b)(c)(1) to

notify the B&M of any specific hazardous conditions ex-

isting on the railroad and of their intention not to per-

form further work unless such condition is corrected im-

mediately. Section 10 plainly does not apply to the facts

of this case.

The Court’s decision in this case is not a deterrent to

railroad employees personally faced with hazardous con-

ditions invoking the protection of Section 10. Whenever

—_ a

i i

3la

an individual railroad employee is personally faced with

imminent danger of death or serious injury and there is

insufficient time to resort to regular statutory channels

of dispute resolution, that employee may notify his em-

ployer that he refuses to perform further work unless

the dangerous condition is corrected immediately. This

is not to say, however, that one man’s danger affords any

basis at all in law or in fact for a system-wide strike by

hundreds of other employees who are not personally ex-

posed to that danger.

In addition to arguing that the B&M’s complaint must

be dismissed because of lack of subject matter jurisdic-

tion and failure to state a claim, the respondents argue

that this action is moot. At the November 14 hearing,

Committee Chairman Lenfest testified that the B&M has

represented to him that any problems regarding the fail-

ure to provide flagging have been corrected. Therefore,

the respondents argue that there would be no reason to

stop working and an injunction would serve no purpose.

The Court disagrees and rules that this case is not moot.

The fact that a party voluntarily discontinues an il-

legal activity does not necessarily moot an action. United

States v. Trans-Missouri Freight Association, 166 U.S.

290 (1897); Walling v. Helmeric & Payne, Inc., 323 U.S.

37 (1944). In United States v. W.T. Grant Co., 345 U.S.

629, 632 (1953), the Supreme Court explained that if a

case is held to be moot:

[t]he defendant is free to return to his old ways.

This, together with a public interest in having the

legality of the practice settled, militates against a

mootness conclusion. [citation omitted]. For to say

that the case has become moot means that the de-

fendant is entitled to a dismissal as a matter of

right. [citation omitted]

In a case factually similar to the instant action, the

Court of Appeals for the Seventh Circuit held that an ap-

peal from an injunction against a strike was not mooted

by the union’s representation that it had lost interest in

32a

striking. Chicago and Northwestern Transportation Co.

v. United Transportation Union, 656 F.2d 274, 277 (7th

Cir. 1981). See also United States v. Generix Drug

Corp., et al., 460 U.S. 458, 457 n.6 (1983) (“The possi- |

bility that respondent may change its mind in the future

is sufficient to preclude a finding of mootness.’’).

The respondents argue that, under the facts of this

case, they had a legal right to engage in a widespread

work stoppage. If this Court declined to issue an injunc-

tion at this time, the respondents would be free to engage

in another widespread work stoppage if another dispute

over an alleged failure to provide flagging anywhere on

the railroad develops. The Supreme Court has said that

where a defendant continues to assert the legality of the

challenged conduct, that is a factor which tends to show |

that the case is not moot. Walling v. Helmerich & Payne,

Inc., 323 U.S. 37, 42-43 (1944). Here, the fact that re-

spondents steadfastly maintain the legality of a general

strike in this sitvation shows clearly that this case is

not moot. I rule tnat the respondents have not carried

their “heavy” burden of showing that “there is no rea-

sonable expectation that the wrong will be repeated.”

United States v. W.T'. Grant Co., 345 U.S. 629, 6383

(1953).

In summary, I rule that petitioner has carried its bur-

den of proving that it would probably prevail after a full

hearing on the merits and will suffer irreparable harm

if respondents are not enjoined. The record also shows

that substantial harm would be visited upon a substantial

segment of the public, namely the 25,000 commuters who

rely on the B&M to get to and from their place of em-

ployment daily, as well as their employers and those who

regularly rely on the B&M’s freight service. Respondents

have failed to show that they would suffer any irrepara-

ble harm if this clearly illegal strike is enjoined.

Order accordingly.

/s/ Andrew A. Caffrey

AND! aw A. CAFFREY, Ch. J.

33a

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

Civil Action No. 85-4106-C

BOSTON AND MAINE CORPORATION,

Petitioner

¥.

R. M. LENFEST, JR., Individually and as Chairman of

General Committee of Adjustment, United Transporta-

tion Union (T), J. F. FISKE, JR., Individually and as

Vice Chairman of General Committee of Adjustment,

United Transportation Union (T), P. E. McHucu,

Individually and as Secretary of General Committee of

Adjustment, United Transportation Union (T), RICH-

ARD A. CHARTRAND, T. G. CROMWELL, JOHN F. FISKE,

C. L. HARRIS, JOSEPH B. KUCHIESKI, ALBERT H. LEBERT,

LEO J. MACDONALD, CHARLES W. PAIGE, JR., GEORGE

EK. QUACKENBUSH, WILLIAM J. RABBITT, R. J. SAWYER,

W. C. TAYLOR, ROBERT J. WRIGHT, JOSEPH SYLVAIN,

C. J. TREMBLAY, R. J. MORANI and D. M. PERIGNY,

Individually and as Local Chairmen of General Com-

mittee of Adjustment, United Transportation Union

by SB

Respondents

MEMORANDUM AND ORDER

MURRAY, Senior District Judge

This case came on to be heard by the court on Peti-

tioner’s motion for temporary restraining order, after

notice to certain respondents, on the testimony of wit-

nesses and the affidavits of Peter W. Carr, Thomas J.

Reilly, Tames R. Stoetzel, William V. Furey, John J.

Cronin, Colin Pease, Dennis P. Coffey and B. E. Rice,

Jr., to enjoin the respondents from carrying out a strike

34a

against Petitioner and continued picketing of Petitioner’s

properties which may violate the Railway Labor Act. Pe-

titioner is a railroad corporation carrying on commuter

and freight operations in Massachusetts and other New

England states.

From the evidence before the court it was shown that

the strike which commenced at approximately 4:30 A.M.

on November 4, 1985, and was continuing when the court

was engaged in hearing the Petitioner’s motion, caused

the cessation of the commuter service operated by the

Petitioner for and on account of the Massachusetts Bay

Transportation Company, and resulted in disrupting the

commuting services to and from Boston of an estimate[d]

45,000 persons. In addition, the strike interrupted the

freight service operated by Petitioner and resulted in a

work stoppage of Petitioner’s employees, who played no

part in causing the strike, and disrupted the daily cash

flow on which Petitioner depends to continue its opera-

tion.

The strike was not authorized by the International

Officers of the United Transportation Union (T), a labor

union with which Petitioner has contractual relations

under a labor agreement governing the wages, hours, and

conditions of employment of its members, including the

individual respondents.

Petitioner’s officers and counsel were unable to reach

the respondent Lenfest after the strike commenced or at

any time during the day until the court opened the hear-

ing on Petitioner’s motion, and thus the officers were kept

in the dark as to the reason the strike was called. It

was only after the court granted a recess of the proceed-

ing that Petitioner learned that respondents claimed Peti-

tioner failed to guard against unsafe conditions on rail-

road property due to unfulfilled custom and usage in

“flagging” assignments. The evidence was that in the

week before the vote to strike was taken on November 8,

1985, there was no knowledge on the part of the respond-

35a

ent Lenfest (the only witness for the respondents) of

any unsafe condition that required “flagging” anywhere

on the railroad.

The court finds that the respondents had no valid cause

for striking against Petitioner. Moreover, the court finds

that the strike will cause irreparable harm to Petitioner

unless injunctive relief is granted; that there is strong

likelihood that Petitioner will be successful on the merits

of its claims against the respondents; that the irreparable

harm which will result to Petitioner if injunctive relief

is denied outweighs any harm which may befall the re-

spondents from the granting of the injunction; that the

public interest will not be adversely affected by the grant-

ing of injunctive relief.

Upon the Petitioner’s giving of security in the amount

of $10,000, an order shall issue enjoining the respond-

ents, individually and as officers of the General Commit-

tee of Adjustment, and all persons acting in concert with

them, from authorizing, calling, encouraging, permitting,

engaging, or continuing in a strike or work stoppage or

picketing against the Petitioner forthwith.

This temporary restraining order shall expire at 6:00

P.M. on November 13, 1985, unless it is further extended

by order of the court.

Issued November 4, 1985

at 8:40 P.M.

/s/ Frank J. Murray

Senior District Judge

36a

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 86-1039

BOSTON AND MAINE CORPORATION,

Petitioner, Appellee,

R.M. LENFEST, JR., INDIVIDUALLY AND AS

CHAIRMAN OF THE GENERAL COMMITTEE OF ADJUSTMENT,

UNITED TRANSPORTATION UNION (T), et al.,

Respondents, Appellants.

JUDGMENT

Entered: September 2, 1986

This cause came on to be heard on appeal from the

United States District Court for the District of Massa-

chusetts, and was argued by counsel.

Upon consideration whereof, It is now here ordered,

adjudged and decreed as follows: The order of the dis-

trict court enjoining the appellants is vacated and the

cause is remanded to the district court with instructions

of issuing an injunction in accordance with the opinion

filed this day and to refer the dispute to the National

Railroad Adjustment Board. No costs.

By the Court:

/s/ Francis P. Scigliano

Clerk

hte

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.