Petition for Writ of Certiorari — Boston & Maine Corp. v. Railway Labor Executives' Ass'n

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Supreme Court, U.S.

y§tLep

8A-2N54 UN 25 1987

No. 86-

JOSEPH F. SPANIOL, JR,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

BOSTON AND MAINE CORPORATION, et al.,

7 Petitioners,

Vv.

RAILWAY LABOR EXECUTIVES’ ASSOCIATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

CHARLES S. EINSIEDLER, JR. RALPH J. MOORE, JR.*

PIERCE, ATWOOD, SCRIBNER, WILLIAM F. SHEEHAN

ALLEN, SMITH & LANCASTER RICHARD M. WYNER

One Monument Square D. EUGENIA LANGAN

Portland, Maine 04101 SHEA & GARDNER

(207) 773-6411 1800 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 828-2000

Counsel for Petitioners

* Counsel of Record

June 25, 1987

WILSON - EPES PRINTING Co., INC. - 789-O096 - WASHINGTON, D.C. 20001

‘ oe

QUESTION PRESENTED

Whether §2 Fourth of the Railway Labor Act pro-

vides a judicial remedy for claims that a railroad has

retaliated against an employee for strike-related or other

union activity, where there is no claim that the railroad

seeks to undermine the union’s representative status and

the employee has a remedy in arbitration before an ad-

justment board under § 3 of the Act.*

* The parties to the proceeding in the court of appeals were the

same as those here, i.e., petitioners Boston and Maine Corporation,

Maine Central Railroad Company, Portland Terminal Company, and

Delaware & Hudson Railway Company and respondent Railway

Labor Executives’ Association. Petitioners are wholly owned sub-

sidiaries of Guilford Transportation Industries, Inc., which has no

parent company. Petitioners’ affiliates are Albany and Vermont

Railroad Company, Albany Post Railroad Corporation, Northern

Railroad, Saratoga and Schenectady Railroad Company, Stony

Brook Railroad Corporation, and Vermont and Massachusetts Rail-

road Company.

(i)

TABLE OF CONTENTS

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ile tdsirncclinchscteencencantermnabhicseninecemopenenrstonet

STA

EE UIT ncscncncenseonscunyeneusencsessenscnenssnssennseess

ic ancietecsnceaanhianteevnnmanseyestennhovees

. The strike and job abolishments ..................000......

i S| ee

. The court of appeals ruling.....................................

REASONS FOR GRANTING THE WRIT .......0000022.2....

. The Decision Below Conflicts With Decisions Of

I ncasapsnevensaehunntinbasgas

The Decision Below Misconstrues §§ 2 Fourth

And 3 First And Runs Counter To The Act’s

Fundamental Preference For Arbitration Over

Peaera: Court Litigation .........................................

icc iercnnbaccnincsecknnsamsednineseanintinnnecsees

- APPENDIX:

Opinion of the court of appeals ...................2..22222.....

Opinion of the district (AE ee

Opinion of the district court on the post-trial mo-

tion to abolish jobs —................. EES Re RV No ee

Judgment of the court of appeals ...........00........0.2.....

Order of the court of appeals on petitions for re-

I sseshaiuiniesinauaumenaneaie

Text of the Railway Labor Act, selected provi-

sank eunenssducundnanuibecuie

Page

ao - NW WNW

TABLE OF AUTHORITIES

CASES: Page

Andrews v. Louisville & N. R.R., 406 U.S. 320

DIS cident eter ae 17

Brotherhood of Locomotive Engineers v. Louisville

ee) ee Bk ES ns 17

Brotherhood of Railroad Trainmen Vv. Central of

Georgia Ry., 305 F.2d 605 (5th Cir. 1962) ...... 9,10, 12

Brotherhood of Railroad Trainmen vy. Jacksonville

Terminal Co., 394 U.S. 369 (1969) .....0000220 oo. 2,15

Detroit & Toledo Shore Line R.R. v. United Transp.

Union, S96 U8. 148 (1908) .................................... 2

Gateway Coal Co. v. United Mine Workers, 414

Se I I iad ash dada cs Desetieldcabiernaicncendigedsiatinnantasiens 17

General Comm. of Adjustment v. Missouri-Kansas-

Texas R.R., 320 U.S. 323 (1948) ...... pI ONE 18

Gunther Vv. San Diego & A.E. Ry., 382 U.S. 257

SII sites dase t= carsoreaniatica be dabiendcek icenatoeded eum takdeneneissan 18

Independent Union of Flight Attendants v. Pan

American World Airways, Inc., 789 F.2d 139 (2d

Os Fi siliiaiicinsesieitintch Aataaaebeititie lnatiiieiianticnats 11, 12, 15

International Ass’n of Machinists v. Eastern Air-

lines, Inc., 320 F.2d 451 (5th Cir. 1963) -............ 10

International Association of Machinists and Aero-

space Workers y. Alaska Airlines, Inc., 813 F.2d

I CI ic BE Nstsacectieaicnstcaccrnecinscrmencnntaceieecle 12,17

International Ass’n of Machinists & Aerospace

Workers v. Northwest Airlines, Inc., 673 F.2d

Re I cixctiiciecrisestecreteisc pacanadeaniecientantbactiel passim

Order of Railway Conductors v. Pitney, 326 U.S.

TR 18

Pennsylvania R.R. v. Day, 360 U.S. 548 (1959)... 18

Slocum v. Delaware, L. & W. R.R., 339 U.S. 239

ERS E RENE RE erro eertaean NCeREN OStid seein dN ROE LOO Te 18

Texas & N.O. R.R. v. Brotherhood of Railway &

Steamship Clerks, 281 U.S. 548 (1930) ................. 15

Transportation-Communication Employees Union

v. Union Pacific R.R., 385 U.S. 157 (1966) _...... 18

Union Pacific R.R. v. Price, 360 U.S. 601 (1959)... 18

Union Pacific R.R. v. Sheehan, 439 U.S. 89 (1978).. 17, 18

Virginian Ry. v. System Fed’n No. 40, 300 U.S. 515

Tay scasliccphanachcsistinhtsrenbcaahinsiis Ucasasnicarhunndiolaatniiaiediespeeinectiibes 15

TABLE OF AUTHORITIES—Continued

STATUTES: Page

National Labor Relations Act

A Ne TT csiesconcxcnosmcncesntoseminecauanciacdaones 11,15

Railway Labor Act

Oe Is II «sn sanscsvcccandsennibiucenhsbemumbanienee 2,18

I I ac ccsininicnaniceiobainclcauoenel passim

a OE TI siiscincinsis idawchcnssenksebnbceaumsincsodenneiel passim

NR i ica cic id pectin alana 2

Oe NE etiiaiianesctsnsecccisiccdatcnmaeiassumiared 2

ee Oe aie detinicsint cniceivebinectscecaceenaanneaenee 2,3, 4

ee Ne ieinintsscntecedicrnicticcrnssccinestaionbeeccal 1

ADJUSTMENT BOARD AWARDS:

Brotherhood of Maintenance of Way Employes v.

Elgin, J. & E. Ry., Award No. 17312 (NRAB,

ee i eh eaeeeaicct ica hicdentisgindiecaeneenes 16

Brotherhood of Railroad Signalmen v. Erie-

Lackawanna R.R., Award No. 138933 (NRAB,

Oe ies PI is nsaeclnciciccneasconasde etic, tabnauaden onaaciiee 16

Brotherhood of Railway and Steamship Clerks v.

Pennsylvania R.R., Award No. 12418 (NRAB,

ir chew ic cakeco ee eticcnamannicemecane 16

Brotherhood Railway Carmen Vv. Chicago & N.W.

Transp. Co., Award No. 10732 (NRAB, 2d

BE I ow ineaccudeso acco eisai ieccintensanserennaaaie 16

Brotherhood Railway Carmen v. Missouri-Kansas-

Texas R.R.,-Award No. 10871 (NRAB, 2d Div.

| ACIS RSA NG ee SOM Perak SES) ELIS Se Re 16

United Transp. Union v. Atchison, T. & S.F. Ry.,

Award No. 23 (Pub. L. Bd. No. 2158 1979) ........ 16

MISCELLANEOUS:

Budget of the United States: Fiscal Year 1987,

DE Te THO east ckoceinattersctbaitacnteciente casitacnies 19

H.R. Rep. No. 1944, 73d Cong., 2d Sess. (1934) ...... 15

S. Rep. No. 1127, 73d Cong., 2d Sess. (1934) .......... 15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-

BOSTON AND MAINE CORPORATION, et al.,

Petitioners,

Vv.

RAILWAY LABOR EXECUTIVES’ ASSOCIATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

OPINIONS BELOW

The opinion of the court of appeals (App. la) is re-

ported at 808 F.2d 150 (1st Cir. 1986). Its order deny-

ing rehearing (App. 65a) is not reported. The opinion

of the district court (App. 19a) is reported at 639 F.

Supp. 1092 (D. Me. 1986).

JURISDICTION

The final judgment of the court of appeals denying re-

hearing (App. 65a) was entered on March 13, 1987. On

June 2, 1987, Justice Brennan granted petitioners’ appli-

cation for an extension of time in which to file a petition

for a writ of certiorari to and including June 25, 1987.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTE INVOLVED

The relevant portions of Sections 2, 3, and 10 of the

Railway Labor Act, 45 U.S.C. §§ 151la, 152, 153, and 160,

are reproduced at App. 67a-77a.

STATEMENT

1. The strike and job abolishments. This case arises

out of a 1986 strike by the Brotherhood of Maintenance

of Way Employes (“BMWE”’) against the Maine Cen-

tral Railroad Company and its then-subsidiary, the Port-

land Terminal Company (collectively “MEC”). The

BMWE is a labor organization that represents the MEC’s

maintenance of way employees, as well as maintenance of

way employees of the MEC’s sister companies, the Boston

and Maine Corporation (“B&M”) and the Delaware &

Hudson Railway Company (“D&H’’).' Respondent Rail-

way Labor Executives’ Association (“RLEA”) consists

of the presidents of the BMWE and various other unions

that represent other employees of those carriers.

On April 2, 1984, the BMWE served on the MEC a

proposal to change certain aspects of the MEC-BMWE

collective bargaining agreement. In particular, the

BMWE proposed that the MEC give up its existing right

to abolish maintenance of way positions. The parties en-

gaged in the lengthy negotiation and mediation proce-

dures provided for by §$5 and 6 of the Railway Labor

Act, 45 U.S.C. §§ 155 and 156, but ultimately failed to

reach agreement. (App. 3a-4a.)?

1 MEC, B&M, and D&H are wholly-owned subsidiaries of Guilford

Transportation Industries, Inc.

2 The Act’s sequential procedures for handling collective bargain-

ing disputes are described in Brotherhood of Railroad Trainmen V.

Jacksonville Terminal Co., 394 U.S. 369, 379 (1969), and Detroit

& Toledo Shore Line R.R. v. United Transp. Union, 396 U.S. 142,

152 (1969).

On February 28, 1986, the MEC abolished some 15 to

20 maintenance of way positions. On March 3, the

BMWE went on strike. Subsequently the BMWE com-

menced secondary picketing of the B&M and the D&H.

Fewer than 2% of the three carriers’ union-represented

employees crossed BMWE’s picket lines. (App. 4a.) The

work stoppage caused an immediate and drastic decline in

the carriers’ business and revenues. (App. 40a; see charts

at App. 58a-55a.)

On April 14, when the strike was in its seventh week,

the carriers learned that the National Mediation Board

had recommended to the President that he appoint an

Emergency Board under § 10 of the Act to study and re-

port on the MEC-BMWE dispute. (App. 5a.) Appoint-

ment of a Board would end the strike, at least for the

60-day period prescribed in §10. See 45 U.S.C. § 160.

The carriers realized that the decline in their business

would continue even after the end of the strike. Thus,

if an Emergency Board were appointed and the strike

ceased, their entire pre-strike workforce might return to

their positions even though, given the business decline,

there would not be enough work for that many employ-

ees. The carriers’ collective bargaining agreements gen-

erally require a notice period of five days before a job

may be abolished. Hence if all the carriers’ employees

returned to work, the carriers would be required to pay

those employees for whom there was no work, and whose

jobs would accordingly be abolished, some five days’ pay.

Accordingly, on April 18, in order to protect against that

contingency, the carriers issued permanent job abolish-

ment notices pursuant to their collective bargaining

agreements, covering virtually all of the positions on the

railroads, so that, if the strike were to end, they could

assess their needs and determine how many jobs to re-

establish in light of the level of business existing at-that

time. (App. 5a and 26a.)

On May 16, approximately one month later, the BMWE

expanded its secondary picketing to Conrail, and shortly

thereafter the President did in fact establish an Emer-

gency Board to investigate the MEC-BMWE dispute.

The President’s order, echoing § 10 of the Act, provided

that during the 60-day Emergency Board period “no

change * * * shall be made by the parties to the con-

troversy in the conditions out of which the dispute

arose.” (App. 6a.)

Even though the MEC had abolished all positions dur-

ing the strike in accordance with its existing rights under

its collective bargaining agreements, it nevertheless de-

cided to restore all of its employees to the positions that

they had held before the strike. (App. 6a and 29a.)

Shortly thereafter, however, again exercising its contrac-

tual right to abolish positions, the MEC issued new job

abolishments, effective after the prescribed notice period,

covering some 267 of 734 existing positions, a reduction

in force corresponding to the MEC’s reduced business

levels. (App. 6a-7a and 29a; Dfts’ Exhs. 29-F and 29-G.)

The B&M and the D&H, on the other hand, believing that

they were not covered by the President’s order since they

were not parties to the MEC-BMWE dispute, simply re-

established some 50% of their pre-strike positions, simi-

larly corresponding to the volume of business remaining

after the strike. The returning workers bid for those

jobs on the basis of pre-strike seniority. (App. 7a and

29a.)

Thus, to bring employment levels in line with business

levels, the MEC, covered by the Order, called back all em-

ployees and then abolished jobs; whereas the B&M and

D&H, not covered, called back only a percentage of their

pre-strike workforce.

2. The district court ruling. RLEA challenged both the

mid-strike and post-strike job abolishments as well as

other actions by the carriers in applying various work

rules following the strike. RLEA contended that these

job abolishments and other actions were done to punish

employees who struck or honored picket lines. The car-

riers argued in response that all of their actions, includ-

ing the job abolishments, were authorized by and proper

under the parties’ collective bargaining agreements, and

that the unions’ objections to those actions, including any

claim that the carriers had sought to punish employees,

raised only “minor disputes” over the application of the

parties’ labor agreements, which are subject to manda-

tory arbitration by adjustment boards under § 3 of the

Act.*

After a trial, the district court entered permanent in-

junctions against each of the carriers. The court recog-

nized that the MEC needed to reduce its workforce after

restoring everyone to work upon issuance of the Presi-

dent’s Order, and it ruled that the MEC would have been

justified in implementing an “appropriately conceived and

executed” workforce reduction based on economics. (App.

40a.) The court concluded, however, that the MEC had

instead singled out for abolishment only the jobs of work-

ers who had honored the BMWH’s picket lines. (App.

43a.)*

As to the B&M and D&H, the district court agreed

that they were not subject to the President’s Order and

thus had no obligation to restore the pre-strike status quo

3 Section 3 First (i) of the Act, 45 U.S.C. 153 First (i), provides

that

“The disputes between an employee or group of employees and

a carrier or carriers growing out of grievances or out of the

interpretation or application of agreements concerning rates of

pay, rules, or working conditions * * * shall be handled-in the

usual manner up to and including the chief operating officer of

the carrier designated to handle such disputes; but, failing to

reach an adjustment in this manner, the disputes may be re-

ferred by petition of the parties or by either party to the

appropriate division of the Adjustment Board * * *” (emphasis

added).

4It reached that conclusion even though essentially all (over

98%) of MEC’s employees honored the picket lines and hence there

was virtually no one to discriminate in favor of. (App. 4a.)

by recalling all of their employees to their pre-strike

positions. (App. 46a.) But the court nevertheless held

that those carriers had violated their collective bargain-

ing agreements by the mid-strike job abolishments. The

court evidently construed the labor contracts to impose a

duty on the carriers to let all their employees return to

work at the strike’s end, and ruled that the mid-strike

abolishments constituted an “anticipatory breach” of that

duty. (App. 47a-48a.) The court ordered all of the car-

riers to recall all ‘of-their employees and to pay them

back pay. (App. 51a-52a.)°

3. The court of appeals ruling. The First Circuit af-

firmed as to the MEC but reversed as to the B&M and

D&H. It agreed that the MEC had the right under its

labor agreements to abolish jobs after taking all of its

workers back. (App. lla.) But then, focusing on the

claim that the abolishments had been undertaken with an

eye to punish strikers, it said that “(t]he real question

* * * is whether a claim that the carrier has discrimi-

nated against its employees because they have engaged in

activities protected by the RLA falls within the [exclu-

sive] jurisdiction of the adjustment boards, or whether

such an allegation may be brought in the courts.” (App.

12a.) The court held that abolishing the jobs of employ-

ees who had engaged in “protected activity” was “con-

trary to the rights of employees as established in Section

2, Fourth, of the RLA,” ® and that therefore the district

5 The following week, after the carriers had reinstated all of their

employees, the district court approved a new plan of job abolish-

ments under which the carriers abolished almost all of the positions

that were ordered reinstated. (App. 6la-63a.)

6 Section 2 Fourth, 45 U.S.C. § 152 Fourth, provides in relevant

part that:

“Employees shall have the right to organize and bargain col-

lectively through representatives of their own choosing. The

majority of any craft or class of employees shall have the right

it to determine who shall be the representative of the craft or

class for the purposes of this chapter. No carrier, its officers,

court had jurisdiction over RLEA’s claims. (App. 14a-

15a.) On the merits, the court ruled that substantial evi-

dence supported the district court’s finding that the MEC

had selectively abolished the jobs of employees that hon-

ored picket lines. (App. 14a.) Hence it affirmed as to the

MEC.

The court of appeals then held that RLEA’s challenge

to the B&M’s and the D&H’s so-called “anticipatory

breach” of their labor agreements, like any other claimed

breach of such agreements, fell within the exclusive ju-

risdiction of an adjustment board. (App. 17a.) Accord-

ingly, it reversed the judgment against those two car-

riers. On petition for rehearing, however, it held that

the district court, on remand, could determine whether

the B&M and D&H, like the MEC, had acted to punish

workers rather than for financial or other lawful motives.

(App. 66a. }

REASONS FOR GRANTING THE WRIT

The decision below creates a square conflict with deci-

sions of four other Circuits regarding the justiciability

of a claim that a rail carrier has acted to punish or

otherwise discriminate against employees for union-

related activities. The rule in the four other Circuits is

that, once a union has established itself as the collective

or agents shall deny or in any way question the right of its

employees to join, organize, or assist in organizing the labor

organization of their choice, and it shall be unlawful for any

carrier to interfere in any way with the organization of its

employees, or to use the funds of the carrier in maintaining

or assisting or contributing to any labor organization, labor

representative, or other agency of collective bargaining, or in

performing any work therefor, or to influence or coerce em-

ployees in an effort to induce them to join or remain or not

to join or remain members of any labor organization, or to

deduct from the wages of employees any dues, fees, assess-

ments, or other contributions payable to labor organizations,

or to collect or to assist in the collection of any such dues, fees,

assessments, or other contributions * * *,”

bargaining representative and is able to process claims

through arbitration, § % “ourth provides a judicial rem-

edy only for claims that a carrier is seeking to under-

mine the union’s representative status, which is what

§ 2 Fourth by its terms protects. Otherwise claims of

retaliatory discharge, and other such claims, fall within

the exclusive jurisdiction of an adjustment board under

§ 3 to resolve disputes over the “application” of collec-

tive bargaining agreements.

Those decisions struck the appropriate balance between

the role of the courts under § 2 Fourth and the adjust-

ment boards under § 3. They allow courts to deal effec-

tively with employer campaigns to undercut representa-

tional rights, protected by § 2 Fourth, while at the same

time limiting courts to the minimal role in railway labor

disputes intended by Congress by sending disputes arising

from the interpretation or application of agreements made

by employees’ representatives to the adjustment boards,

whose jurisdiction is exclusive.

Under the decision below, however, the adjustment

board’s exclusive jurisdiction can be avoided, and the

courts drawn into the fray, by the expedient of plead-

ing that a disputed application of an agreement is “dis-

criminatory” or “retaliatory,” thus dressing up a “minor

dispute” as a § 2 Fourth violation. That result is funda-

mentally at odds with the plain language, history, and

purposes of the Railway Labor Act and encourages an

end run around Congress’ determination that it is “es-

sential” that minor disputes go to adjustment boards

rather than to the federal courts.

1. The Decision Below Conflicts With Decisions Of Four

Other Circuits

Section 2 Fourth of the Railway Labor Act gives em-

ployees “the right to organize and bargain collectively

through representatives of their own choosing” and

makes it unlawful for any employer to (1) “deny or in

any way question the right of its employees to join,

biceieaiesiainmiiaesiaaicmaaaiciaaiaadaiaiaasiaaD

organize, or assist in organizing the labor organization

of their choice,” (2) “to interfere in any way with the

organization of its employees,” or (3) to “coerce em-

ployees in an effort to induce them * * * not to join or

remain members of any labor organization.” (Emphasis

added.) Section 3 First, on the other hand, grants to the

adjustment boards mandatory and exclusive jurisdiction

over “disputes * * * growing out of grievances or out of |

the interpretation or application of agreements concern-

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

Many decisions have addressed the question whether

the courts under § 2 Fourth, or adjustment boards under

§ 3, have jurisdiction over a claim that an employer’s

exercise of rights under the applicable collective bargain-

ing agreement was invalid because it was_motivated by

a desire to punish the employee for union-related ac-

tivity rather than by financial or other legitimate con-

cerns. Prior to the decision below, the answer was that

such claims are to be decided by the adjustment boards

unless the carrier’s actions are intended to destroy the

union’s representative status.

The Fifth Circuit was the first to so hold. In Brother-

hood of Railroad Trainmen v. Central of Georgia Ry.,

305 F.2d 605 (5th Cir. 1962), an individual employee

and his union claimed that the employee had been singled

out for discipline because he was a union official. The

court ruled that the individual, personal claims were sub-

ject to mandatory arbitration before an adjustment

board. But it upheld federal jurisdiction over the union’s

claim under § 2 Fourth of the Act, emphasizing that the

union had made a “direct, positive charge” that the car-

rier’s purpose was to “ihwart [the official’s] (and the

Brotherhood’s) effectiveness as a collective bargaining

agent” and that a railroad “is not free to destroy the

process of collective bargaining and resolution of indus-

trial grievances by wrongfully destroying the effective-

ness of the chosen representative.” (Jd. at 608.) Almost

immediately thereafter the Fifth Circuit reaffirmed that

the second half of its Central of Georgia ruling ap-

plied only in cases involving an “independent under-

lying purpose on the part of the employer to thwart the

effectiveness of collective bargaining agents.” Interna-

tional Ass’n of Machinists v. Eastern Airlines, Inc., 320

F.2d 451, 454 (5th Cir. 1963).”

The Fifth Cireuit was followed by the Third in Jnter-

national Ass’n of Machinists & Aerospace Workers Vv.

Northwest Airlines, Inc., 673 F.2d 700 (8d Cir. 1982).

The union there claimed that five employees had been

disciplined as a means of undermining the union. The

carrier responded that the discipline was based on the

employee’s wrongful conduct. The court of appeals stated

that the purpose of § 2 Fourth was to insure “that em-

ployees’ designation of bargaining representatives would

be free from employer coercion or interference” and that

other courts had therefore held that § 2 Fourth provides

only “limited rights outside the context of representa-

tional disputes * * *.” (Jd. at 707.) The court agreed

with those limitations, holding that “[w]here a collective

bargaining agreement is in place, as it was here, Section

2 is limited in application to circumstances such as those

presented in [Central of Georgia].” (Id. at 707 n.6.)

Accordingly, to take a claim from the adjustment board

and establish federal court jurisdiction—

7In that case, the union alleged that the carrier’s actions were

part of a deliberate scheme to eliminate the union as the sole bar-

gaining agent; yet the court held that even that allegation was

insufficient to remove the dispute from the exclusive jurisdiction

of the Adjustment Board. It ruled: “The Adjustment Board can-

not be by-passed; its jurisdiction cannot be thwarted in minor dis-

putes in grievance cases by the bald allegation that the violations

of the agreement are ‘but a part of a deliberate scheme’ designed

to eliminate the union as sole bargaining agent. A contrary holding

would go far toward eliminating the usefulness of the Adjustment

Board.” Id. at 454.

“the plaintiff proposing a Section 2 theory such as

the one proposed here must allege that the defendant

is engaged in a general campaign or effort designed

to destroy or undermine the union’s representation

of its members.” (Jd. at 711.)

The Second Circuit adopted the same view in I[nde-

pendent Union of Flight Attendants v. Pan American

World Airways, Inc., 789 F.2d 139 (2d Cir. 1986). The

union contended that a flight attendant who was also a

union representative had been suspended in retaliation

for statements she made to the FAA; Pan Am defended

on the ground that she had made false or misleading

statements justifying the discipline. The court held that

the case presented only a minor dispute, and that the

district court had no jurisdiction under § 2. The court

noted “Congress’ exacting allocation of administrative

jurisdiction” under § 3 of the Act, and ruled that Con-

gress had provided only a “ ‘thread’ of judicial interven-

tion in cases in which, ‘but for the general jurisdiction

of the federal courts there would be no remedy to en-

force the statutory commands which Congress had writ-

ten into the Railway Labor Act.’” (Jd. at 141.) Hence

“Twlhere, as here, a post-certification dispute develops

concerning existing rights, that dispute would appear to

arise under section 153.” (Jd.) The Second Circuit also

ruled, applying the Fifth and Third Circuit decisions

just discussed, that the union had not demonstrated that

the carrier’s disciplinary action reflected a “predeter-

mined effort to ‘frustrate and undermine the effective-

ness of [the] bargaining agent * * *.’” (Jd. at 142.) In

short, there is no jurisdiction under § 2 absent “a clear

showing of an overall employer objective of .undermining

union representation,” lest a court “infringe upon Con-

gress’ conferral of jurisdiction on the adjustment boards.”

(Id. at 142 n.3.)

The Second Circuit also rejected the union’s reliance

on §7 of the National Labor Relations Act, which ex-

pressly gives employees the right to engage in “concerted

activities for the purpose of collective bargaining or other

mutual aid or protection.” The court noted that no such

provision appears in the Railway Labor Act and con-

cluded that the legislative history of that Act supports a

more restrictive construction of § 2 Fourth, which by its

terms deals only with representational rights. (Jd. at 141

n.2.)

The Ninth Cirenit adopted the same limited construc-

tion of §2 Fourth in International Association of Ma-

chinists and Aerospace Workers v. Alaska Airlines, Inc.,

813 F.2d 1038 (9th Cir. 1987). The case involved vari-

ous aspects of the airline’s plan for bringing back workers

after a strike. The union claimed that the carrier had

violated §2 Fourth by hiring permanent replacements,

granting superseniority to employees who worked during

the strike, and withholding information. The airline

claimed that its actions were proper under the parties’

agreement because the unions had violated a no-strike

clause. Observing that courts have asserted jurisdiction

under §2 Fourth only where “judicial involvement was

the only means of enforcing the RLA,” and applying the

test developed in Central of Georgia and Northwest Air-

lines, the court ruled that

“TAMA does not contend that Alaska was attempt-

ing to interfere with the workers’ choice of a bar-

gaining representative; the union alleges only that

the recall plan weakens their union by replacing

members, and so violated the RLA. This roundabout

effort to reach a statutory violation is not a sufficient

ground for a court to assume jurisdiction.” (Jd. at

1040-41, emphasis added. )

In short, the Second, Third, Fifth and Ninth Circuits

have all ruled that once a union is certified and claims

~ _ can be taken to an adjustment board, § 2 Fourth provides

substantive rights, and permits judicial intervention, only

if an employer interferes with the employees’ choice of

representatives through a deliberate campaign to under-

mine or destroy the union’s representation of its mem-

bers. Otherwise employee grievances based on alleged

anti-union animus must be taken to the adjustment

boards.

The decision below squarely conflicts with those rul-

ings. The First Circuit accepted the district court’s find-

ing that the MEC abolished the jobs of those employees

who had observed the picket lines and then held that

“lt]here is no question but that such action is contrary

to the rights of employees as established in Section 2,

Fourth, of the RLA.” (App. 14a.) Had the court below

applied the construction of §2 Fourth adopted by the

four other Circuits, however, respondents would have

been obliged to take their claims to the adjustment

boards. Respondents never alleged, in their complaint or

elsewhere, that petitioners had interfered with the em-

ployees’ choice of representatives through a deliberate cam-

paign to destroy or undermine the unions’ representation

of their members, or otherwise. Nor did the district

court make any such finding. Indeed, such a claim could

not be sustained, because the carriers continued to recog-

nize the unions as usual and agreed to expedited arbitra-

tion of the unions’ grievances. (6/23/86 Tr. 156-57.)®

Accordingly, it is only by departing from the settled rule

in four other Circuits that the court below was able to

affirm the judgment against the MEC, and to keep alive

on remand the unions’ claims against the B&M and the

D&H.?® :

8 Identical facts were relied on by the Third Circuit in its deci-

sion for the carrier: “It is undisputed that Northwest has con-

tinually recognized the IAM as the authorized bargaining repre-

sentative for the class of employees in question and, prior to the

institution of this action, Northwest agreed to submit the under-

lying disputes to the I[AM-Northwest Board of Adjustment.” North-

west Airlines, supra, 673 F.2d at 712 n.12.

® As noted above, the court of appeals, on rehearing, stated that

the district court remained free to determine on remand whether

2. The Decision Below Misconstrues §§ 2 Fourth and 3

First And Runs Counter To The Act’s Fundamental

Preference For Arbitration Over Federal Court

Litigation

The court of appeals’ decision is plainly incorrect in

ways that will have important effects on the allocation

of responsibilities between courts and railway and air-

line adjustment boards under the Railway Labor Act.

The decision below is opposed to the plain language of

§§ 2 Fourth and 3 First (i) of the Act. It ignores the

legislative history of §2 Fourth. It sends cases to the

courts for which adjustment boards provide a fully ade-

quate remedy. It is irreconcilable with this Court’s re-

peated holdings that the jurisdiction of adjustment

boards is exclusive. And it conflicts with the strong fed-

eral policies favoring arbitration of labor disputes in

general and railway labor disputes in particular.

A. In adopting a much broader reading of the rights

secured by §2 Fourth, and a concomitantly narrower

reading of the adjustment board’s jurisdiction under § 3,

than four other courts of appeals, the First Circuit has

disregarded the plain language of the Act. Section 3

First (i) assigns exclusively to the adjustment board all

disputes over the “application of agreements concerning

rates of pay, rules, or working conditions.” See note 3

supra. The present case unmistakably involves a dispute

over whether the carriers applied the agreements in a

proper or a retaliatory and capricious manner. On the

other hand, § 2 Fourth by its plain terms speaks only of

employees’ rights to choose their own representatives and

the B&M or D&H had violated § 2 Fourth by acting with discrimi-

natory intent. (App. 66a.)

The conflict among the Circuits is not ameliorated by the First

Circuit’s citation to the Northwest decision as “suggesting in de-

tail the analysis that a district court should undertake,” since that

necessarily referred only to the Third Circuit’s analysis of the shift-

ing burdens of proof (673 F.2d at 711-12), not to the scope of

rights protected by § 2 Fourth.

———————

remain in the union of their choosing. See note 6 supra.

Indeed, unlike § 7 of the National Labor Relations Act,

§ 2 Fourth does not confer a right “to engage in other

ecncerted activities for the purpose of collective bargain-

ing or other mutual aid or protection * * *,” and thus

cannot be read to cover more than representational rights.

See 29 U.S.C. § 157."° In short, the Act’s plain terms

support the conclusions reached by the other four Cir-

cuits.

B. The First Circuit also ignored the legislative his-

tory of §2 Fourth. As the Second Circuit held in

Pan American, that history demonstrates that a more

limited construction of §2 Fourth was intended than

that adopted by the court below. See 789 F.2d at 141

n.2. Section 2 Fourth was added to the Act in 1934 in

order to “ma[k]e more explicit” the Act’s guarantee that

“employees were free to organize and to make choice of

their representatives without the ‘coercive interference’

and ‘pressure’ of a company union organized and main-

tained by the employer” and to “protect[] the freedom of

choice of representatives, which was an essential of the

statutory scheme * * *.” Virginian Ry. v. System Fed’n

No. 40, 300 U.S. 515, 543 (1937). See also, e.g., S. Rep.

No. 1127, 73d Cong., 2d Sess. 2 (1934); H.R. Rep. No.

1944, 73d Cong., 2d Sess. 2 (1934). In short, the purpose

of § 2 Fourth was simply to reinforce the “[f]reedom of

choice in the selection of representatives on each side of

the disput>,” which was “the essential foundation of the

statutory scheme.” Texas & N.O. R.R. v. Brotherhood of

Railway & Steamship Clerks, 281 U.S. 548, 569 (1930).

10This Court has recognized that §2 Fourth is narrower in

scope than § 7, attributing this intentional distinction to “the dif-

ference between the ‘embroyo organizations in the industries cov-

ered by’ the NLRA, and the already ‘strongly organized’ railway

unions.” Brotherhood of Railroad Trainmen v. Jacksonville Termi-

nal Co., 394 U.S. 369, 385 n.20 (1969).

C. It is clear that adjustment boards under § 3 of the

Act can and will provide a fully adequate remedy for

claims of the kind asserted here. Those boards have ruled

repeatedly that collective bargaining agreemeits impose

an implied prohibition against arbitrary, capricious, or

discriminatory action, and hence have entertained claims

that carrier action was improperly motivated by discrim-

ination." And, in particular, adjustment boards have

entertained claims that carriers had applied their force

reduction rules after a strike vindictively to refuse to

return strikers to work.’ Indeed, in this very case, the

unions themselves filed grievances initiating the § 3 arbi-

tration machinery that leads to the adjustment boards,

expressly charging discriminatory motive:

“The Carrier has discriminated against this Claim-

ant when applying this rule as punishment to those

who honored the striking workers’ picket lines. Such

discrimination in applying this rule is without just

cause since the employees within the MW Track and

11 See, e.g., United Transp. Union v. Atchison, T. & S.F. Ry.,

Award No. 23, at 2 (Pub. L. Bd. No. 2158 1979); Brotherhood of

Maintenance of Way Employes v. Elgin, J. & E. Ry., Award No.

17312, at 7 (NRAB, 3d Div. 1969) ; Brotherhood of Railroad Signal-

men V. Erie-Lackawanna R.R., Award No. 13933, at 19 (NRAB, 3d

Div. 1965) (“What plainly is needed to establish the present claim

is additional evidence, specifically, proof that supports Petitioner’s

assertions that the changes in question_were made either ‘to hurt’

Claimant because of his union activities, or, in breach of” the

agreement); Brotherhood of Railway and Steamship Clerks v.

Pennsylvania R.R., Award No. 12419, at 15 (NRAB, 3d Div. 1964)

(“There is no evidence here that the Carrier’s refusal to permit

Claimant to bump on the job sought was motivated by prejudice

or discrimination.”’).

12 See, e.g., Brotherhood Railway Carmen v. Chicago & N.W.

Transp. Co., Award No. 10732 (NRAB, 2d Div. 1986) ; Brotherhood

Railway Carmen Vv. Missouri-Kansas-Texas R.R., Award No. 10871

(NRAB, 2d Div. 1986) (awarding pay to any employee who had

been held out of work for an excessive period of time following

. the end of a strike).

B&B Departments were not treated equally.” (Plain-

tiff’s Exhibits 29A and 29B.)*

Thus the decision creates a judicial remedy where there

is no need for one, since the adjustment boards are open

to such claims."

D. The First Circuit’s holding is irreconcilable with,

and the holdings of the other courts of appeals are

strongly supported by, the “strong federal policy favor-

ing arbitration of labor disputes” (Gateway Coal Co. V.

United Mine Workers, 414 U.S. 368, 382 (1974) ), a pol-

icy that has particular force under the Railway Labor

Act. This Court has on numerous occasions held that the

adjustment board’s jurisdiction over minor disputes is

“exclusive” (Andrews v. Louisville & N. R.R., 406 U.S.

320, 825 (1972); Brotherhood of Locomotive Engineers

v. Louisville & N. R.R., 373 U.S. 33, 38 (1963) ) and that,

in fact, ‘Congress considered it essential to keep these so-

called ‘minor’ disputes within the Adjustment Board and

out of the courts” (Union Pacific R.R. v. Sheehan, 489

13 Notwithstanding the unions’ own earlier submission of their

claims to the § 3 arbitral process, the court of appeals asserted that

“these are claims that cannot be resolved by interpretation of the

collective bargaining agreement.” (App. 12a.) As just noted, how-

ever, the adjustment boards are perfectly able to resolve them as

involving the disputed “application” of the agreements.

14In support of its ruling, the court below mistakenly relied on

cases where no adjustment board remedy was available. (App. 12a-

13a.) This critical distinction was expressly recognized by the

Third and Ninth Circuits. See Northwest Airlines, supra, 673 F.2d

at 707 (“In these pre-certification cases, the employees could not

grieve their discharges, because no bargaining representative had

been designated or certified. As a result no collective bargaining

agreement was in existence and no employees’ dispute could be

submitted to a Board of Adjustment because a Board had not been

created.”); Alaska Airlines, supra, 813 F.2d at 1040 (“In each

cited case, judicial involvement was the only. means of enforcing

the RLA.’’).

U.S. 89, 94 (1978)).1° That conclusion follows directly

from the Act’s fundamental purposes. The Railway Labor

Act’s system of “internal government” (Pennsylvania

R.R. v. Day, 360 U.S. 548, 552 (1959)) was designed

“to secure the prompt, orderly and final settlement of

grievances” (Sheehan, 439 U.S. at 94; Transportation-

Communication Employees Union v. Union Pacific R.R.,

385 U.S. 157, 162 (1966); see 45 U.S.C. § 15la); to

place such grievances in the hands of expert arbitrators

versed in the railroad industry’s customs and practices

(Gunther v. San Diego & A.E. Ry., 382 U.S. 257, 261

(1965); Order of Ratlway Conductors v. Pitney, 326

U.S. 561, 566-67 (1946) );*° and ultimately to minimize

conflicts between labor and management leading to service

interruptions in the railroad industry (Slocum v. Dela-

ware, L. & W. R.R., 339 US. 289, 242 (1950); Union

Pacific R.R. Vv. Price, 360 U.S. 601, 609 (1959) ).

E. In short, the decision below is flat’; inconsistent

with the terms and intent of the Act, creates a conflict

15 See also, e.g., Order of Railway Conductors v. Pitney, 326 U.S.

561, 566 (1946) (Congress “intended to leave a minimum [of]

responsibility to the courts”); General Comm. of Adjustment Vv.

Missouri-Kansas-Texas R.R., 320 U.S. 328, 333 (1943) (“The in-

ference is strong that Congress intended to go no further in its

use of the processes of adjudication and litigation than the express

provisions of the Act indicate.”’).

16 The case at bar confirms that the adjustment boards’ well-

recognized expertise is essential to the proper resolution of “im-

proper motive” claims. Adjustment boards are “peculiarly familiar

with the thorny problems and the whole range of grievances that

constantly exist in the railroad world.” Gunther, 382 U.S. at 261.

The district court here invalidated the MEC’s post-strike job

abolishments because, in its view, the MEC had failed to properly

consider “economies of scale” and had abolished more jobs than

necessary in light of its admittedly precipitous decline in business.

(App. 44a-45a.) It is just such a problem—involving the relation-

ship in the railroad industry between declines in business and de-

clines in workforce—that an adjustment board rather than a dis-

trict court may be expected to have special expertise in handling.

among the Circuits over the meaning of §§ 2 Fourth and

3 First, encourages forum shopping in railway labor dis-

putes, and invites claimants to go to court with disputes

that Congress, for powerful reasons, assigned to the ex-

clusive jurisdiction of adjustment boards. The federal

courts have duties enough without taking on large num-

bers of grievances that in the past have been handled

perfectly well by adjustment boards, as Congress in-

tended.”

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

CHARLES §. EINSIEDLER, JR. RALPH J. MOORE, JR.*

PIERCE, ATWOOD, SCRIBNER, WILLIAM F. SHEEHAN

ALLEN, SMITH & LANCASTER RICHARD M. WYNER

One Monument Square D. EUGENIA LANGAN

Portland, Maine 04101 SHEA & GARDNER

(207) 773-6411 1800 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 828-2000

Counsel for Petitioners

* Counsel of Record

June 25, 1987

17—Tn 1985, the latest year for which figures are available, the

adjustment boards handled over 8500 cases, and over 21,000 others

remained pending. See Budget of the United States: Fiscal Year

1987, Appendix at I-Z80. The ruling below will allow unions, by

artful pleading, to bring large numbers of these and future cases

into the federal courts.

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 86-1653

RAILWAY LABOR EXECUTIVES’ ASSOCIATION,

+ Appellee,

BosTON & MAINE CORPORATION, et al.,

Appellants.

Appeal from the United States District Court

for the District of Maine

[Hon. Gene Carter, U.S. District Judge]

Before

Campbell, Chief Judge,

Bownes and Torruella, Circuit Judges.

Ralph J. Moore, Jr., with whom William F. Sheehan,

Richard M. Wyner, D. Eugenia Langan, Shea & Gard-

ner, Charles S. Einsiedler, Jr., Pierce, Atwood, Scribner,

Allen, Smith & Lancaster and John Townsend Rich were

on brief for appellants.

John O’B. Clarke, Jr. with whom Thomas P. Murphy,

Kimberly A. Madigan, Highsaw & Mahoney, P.C., Craig

J. Rancourt and Law Offices of Craig J. Rancourt were

on the brief for appellee.

December 22, 1986

TORRUELLA, Circuit Judge. The central issue pre-

sented by this appeal is, whether under the circumstances

of this case, the abolishment of certain job positions con-

stitutes a “minor” dispute’ subject to the arbitration

provisions of existing collective bargaining agreements,

or whether such actions are a violation of the substantive

provisions of the Ra?'way Labor Act, 45 U.S.C. §§ 151

et seg. (RLA), the reparation of which may be sought

by recourse to. the courts.? The resolution of this dilemma

will depend upon the answer given to the various sub-

sidiary questions which we must first consider.

The case is another episode in the continuing labor

saga of the Boston & Maine Railroad and related com-

panies. See Brotherhood of Maintenance of Way Em-

ployees V. Guilford Transportation Industries, Inc., No.

1366 (1st Cir., October 28, 1986). The facts are some-

what convoluted. We shall recount only those that are

vital to the determination of the narrow issue presented.

We, of course, are bound by the factual findings of the

district court, unless we conclude that they are clearly

erroneous. Rule 52(a), Fed. R. Civ. P.; Anderson v.

1A “minor” dispute is one concerning the resolution of griev-

ances regarding the interpretation or application of existing collec-

tive bargaining agreements. Brotherhood of Railroad Trainmen Vv.

Chicago River & Ind. R.R., 353 U.S. 30 (1957); 45 U.S.C. § 153.

In contrast, a “major” dispute is one which arises from the forma-

tion or negotiation of changes to agreements regarding rates of

pay, rules, or working conditions. Elgin, J. & E. Ry. v. Burtey,

325 U.S. 711, 722-28 (1945); 45 U.S.C. §§ 155-160. A “minor”

dispute is subject to the primary jurisdiction of arbitration boards

created by the Railway Labor Act. 45 U.S.C. § 153; Slocum v.

Delaware, L. & W. R. Co., 339 U.S. 239 (1950).

2 See Airline Pilots Assoc. v. United Air Lines, No. 85-2726 and

85-2833 (7th Cir., Sept. 29, 1986).

iccnecaecnnismmesasaitsim ida aisuaiiiaiadidiitiia, |

;

‘

“4

City of Bessemer City, N.C., —— U.S. ——, 105 S. Ct.

1504, 1511-1513 (1985).

I. The nature of the controversy

The Brotherhood of Maintenance of Way Employees

(BMWE) is a labor organization which represents, for

collective bargaining purposes, the maintenance of way

employees of the Maine Central Railroad Company and

Portland Terminal Company (hereinafter referred to

jointly as “Maine Central”). This relationship has ex-

isted for some time and has been memorialized in collec-

tive bargaining agreements between the BMWE and

Maine Central.

As is normal, wiih the passage of time the parties

sought to make changes in the contracts. Thus, on April

2, 1984 the BMWE served notice on Maine Central of its

intention to renegotiate various of the existing contrac-

tual provisions.» BMWE “sought primarily to achieve

contract terms that would (1) afford greater job protec-

tion for BMWE membership than existed under the

existing collective bargaining agreement and (2) limit

the carrier’s right to achieve reductions in the work force

of contract labor by future job abolishments.”* The

propelling force behind these demands was the reduction

of the maintenance of way employees from 350 to 400

in number during the 1981-82 period to 120 to 165 by

October 1985.

The negotiations that followed were unfruitful. The

parties exhausted the various steps provided for by the

RLA and were thereafter released by the National Medi-

ation Board (Board) .°

8 See 45 U.S.C. § 156.

* Railway Labor Executives Assoc. Vv. Boston & Maine Corp.,

No. 86-0122-P, slip op. at p. 7.

5 See generally Railroad Trainmen v. Terminal Co., 394 U.S. 369,

879 (1969). In September 1984, the Board entered the picture at

On November 13, 1985, before either party resorted to

self-help, the BMWE and Maine Centra! entered into a

stipulation whereby Maine Central “agreed to a mora-

torium on their proposed job abolishments.”*® Both par-

ties also assented to postponing the exercise of self-help

action until after February 28, 1986.

The parties continued to meet during the moratorium

in an attempt to reach an agreement, but to no avail.

The status quo stipulation expired on February 28, and

thereafter, Maine Central abolished 15 to 20 maintenance

uf way positions. On March 3, BMWE initiated a strike

against Maine Central. It also established pickets against

Boston & Maine Corporation (B & M) and Delaware &

Hudson Railway Company (D & H), which are related

carriers by virtue of their mutual ownership by Guilford

Transportation Industries, Inc., a holding company. See

Guilford Transportation Industries, Inc., supra. Less

than 2% of the contract employees of the carriers crossed

BMWP’s picket lines.

Immediately upon the establishment of BMWE?’s picket

lines against Maine Central, that carrier informed all of

its employees who held contract positions that their posi-

tions were temporarily abolished. The controversy fur-

ther escalated. After B & M and D & H were picketed,

they abolished all of the positions covered by collective

bargaining agreements. All three carriers intended to

restore the jobs upon termination of the strike.’

the request of the BMWE. It proffered arbitration (see 45 U.S.C.

§ 155, First), but this procedure was rejected by the BMWE on

October 2, 1985. Thereafter the Board notified the parties that

pursuant to 45 U.S.C. § 155, First, the status quo must be main-

tained for 30 days, without resort to self help until after the ex-

piration of that period.

6 Railway Labor, slip op. at p. 7.

7 The labor contracts in question gave the carriers the right to

suspend the contracts temporarily in cases of “emergency,” a labor

dispute being considered such a contingency. See App. 131, 140.

aa sanasl |

ae vsaien Wea Et

On March 24, 1986, the appellees, the Railway Labor

Executives’ Association (RLEA),® filed the original com-

plaint in this case in the U.S. District Court for Maine,

seeking declaratory and injunctive relief to prevent

Maine Central from taking discriminatory action against

the striking employees. RLEA also sought to enjoin

D & H and B & M from retaliating against the employ-

ees who refused to cross BMWE’s picket lines. The

carriers in their answer denied any such retaliation and

specifically claimed that any actions taken by them were

permissible under their collective bargaining agreement

and that any claims to the contrary gave rise only to a

“minor” dispute subject to the exclusive jurisdiction of

arbitration boards created under 45 U.S.C. § 153.

Meanwhile, because of the spread in the conflict beyond

the confines of the immediate combatants,® the Board on

April 14 recommended to the President the appointment

of an Emergency Board as provided for in the RLA.’°

The carriers became aware of this recommendation

which, if followed, would result in the issuance of a back-

to-work order which they believed would prevent their

taking contemplated action, and decided to permanently

abolish those positions which earlier it had only “tem-

porarily” eliminated, a decision carried out on or about

April 18, 1986.

Under the provisions of the existing collective bargain-

ing agreements, senior employees whose positions were

8 RLEA is an association of the chief executive officers of the

principal railway unions in the United States, some of which in

turn represent the employees of the carriers here in question.

RLEA has standing to sue on behalf of its membership pursuant to

Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333

(1977).

9 See Guilford Transportation Industries, Inc., supra.

10 45 U.S.C. § 160.

abolished could exercise “bumping” rights* over junior

employees, but they were required within a certain time

period, in some cases, to exercise displacement by physi-

cally entering the junior employee’s work area to inform

him or her of the replacement, and in all cases, to com-

mence work at the next scheduled shift. Either way this

could only be done by crossing the established picket lines,

an action which most employees refused to take. Vir-

tually none of the B & M and D & H employees honoring

the BMWE’s picket lines exercised their bumping rights

within the contractual time limits.

The agreements also provided that an employee whose

position was abolished, but failed to bump could place

his name and address on a hiring list, if he or she did

so within a specified time period. Although theoretically

the failure to sign up could result in the employee’s loss

of seniority, this rule had not in the past been strictly

enforced by any of the carriers.

On May 16, 1986, President Reagan issued Emergency

Order No. 2559 establishing an emergency board to in-

vestigate the Maine Central labor dispute. See 51 Fed.

Reg. 18429 (May 20, 1986). The order also provided

that for sixty days, “no change, except by agreement of

the parties, shall be made by the carrier or the employees

in the conditions out of which these disputes arose” (em-

phasis supplied).

Upon the creation of the Emergency Board by the

President, all of the labor organizations representing the

carriers’ employees made unconditional offers to return

to work immediately. Maine Central accepted this offer

and all striking employees returned to the positions they

held before the strike and thereafter, retained them

throughout the week of May 19th. During that week,

however, Maine Central issued job abolishment notices to

11To “bump” means for a senior employee to displace a more

junior one by virtue of longevity in employment.

eee

- RI at LIE ARIE

447 of its labor force covered by collective bargaining

contracts, a figure which roughly coincided with the vol-

ume of business loss caused by the strike.

D & H and B & M, however, took the position that

they would only hire after determining the carriers’ work

needs after the effects of the secondary pickets. These

carriers then proceeded to post for bidding the needed

positions, the ultimate result being that only about 50%

of their pre-strike positions were reinstated.

On May 20, 1986, RLEA sought a temporary restrain-

ing order against D & H and B & M, claiming their

actions violated the status quo provisions of the Presi-

dent’s Order and Section 10 of RLA.” The district court

ruled that said order did not cover either D & H or B& M.

A request for a temporary restraining order against

Maine Central was also denied, the court holding that

Maine Central had made a substantial preliminary show-

ing that the abolition of the positions in question was

directly related to loss of business and revenues occa-

sioned by the strike.

On May 27, 1986, the carriers unilaterally terminated

the seniority of all employees who did not file their

names and addresses in a timely fashion. But even then,

the provision was not uniformly applied by the carriers.

For example, although 145 B & M employees were noti-

fied of the seniority loss by that carrier, D & H did not

apply that provision to its signalmen employees.“ This

provision was then selectively enforced by the carriers.

The substance of the RLEA’s temporary restraining

order allegations were repeated in an amendment to the

complaint filed on June 16, 1986, which the carriers

thereafter answered denying said contentions.

12 45 U.S.C. § 160.

18 Twenty-four out of the twenty-six signalmen failed to comply,

yet none lost their seniority.

The district court’s decision

The district court after a full trial on the request for

a permanent injunction issued its opinion on July 11,

1986. It ruled that for purposes of Section 10 of the

RLA and the status quo provisions of the Presidential

Order, April 2, 1984 was the date when the “dispute”

arose between the BMWE and the Maine Central. The

court concluded that both Section 10 and the Presidential

Order required that neither party to that dispute make

any change, except by agreement, “in the conditions out

of which the dispute arose.” Citing Detroit and Toledo

Shore Line Railroad Co. v. United Transportation Union,

396 U.S. 142, 153 (1969), the court found “that the

status quo to which the parties are required by the Emer-

gency Order to return is that manifested by the ‘actual,

objective working conditions and practices, broadly con-

ceived, which were in effect’ . . . immediately prior to

the service of the section 6 notice on April 2, 1984. These

encompass[ed] the rates of pay, work rules and condi-

tions of employment provided for by the existing collec-

tive bargaining agreement and/or previously established

practices . . . in effect before the ‘dispute’ arose.” * The

court then concluded that “after the return to work on

May 19, [Maine Central], consistent with its status quo

obligations, would have been justified in implementing

an appropriately conceived and executed reduction in its

work force based upon the actual economic conditions of

the carriers’ business after that date.”** The Court

ruled, however, that Maine Central had violated its Sec-

tion 10 status quo obligations because it had singled out

for abolishment ‘only those jobs held by those employees

who (1) were of the contract labor force or (2) being

contract laborers, had exercised their organizational

rights against the carrier.” ** The court found that the

14 Railway Labor at 24-25.

15 Td. at 26.

16 Jd. at 28.

methodology used by the Maine Central was faulty be-

cause rather than focusing on the abolishment of jobs

which contributed to the economic efficiency of the then

current conditions, it “clearly selected jobs to be abolished

so as to avoid retaining those employees who had not

__worked during the strike.”'’ In the court’s view, the

carrier acted from a “predetermined, and improper, de-

sign to reduce the work force by eliminating strikers as

employees.” *®

: The district court’s analysis as to B & M and D & H

rested on different grounds. First of all it concluded,

reaffirming its prior ruling, see ante at 8-9, that the

Presidential Order specifically identified Maine Central

and the BMWE as the parties covered by its proscrip-

tions, and thus did not apply to the D & H and B & M.

—— The court ruled, however, that this was not determina-

tive of those carriers’ obligations to return their employ-

ees to work on May 16. The court held that these car-.

riers’ April 18 permanent job abolishments were carried

out as an “anticipatory breach of those obligations which

the carriers recognized they would incur under the [col-

lective bargaining] agreements and the RLA provisions

upon the ending of the strike.” This “anticipatory

breach,” the court ruled, violated “the carriers’ section 2,

- First, obligation to exert every reasonable effort to

maintain contracts.” *° The district court held that “the

right of the{se] employees to . . . return to work was

properly secured to them by the RLA provisions as well

4 as by the terms of the collective bargaining agree-

ment.” * In conclusion the court determined “that the

permanent job abolishments of April 18 were illegal,” **

>. ibaa Shae snail nce ems aes tonal ate

17 Td.

18 Jd. at 32, emphasis in the original.

; 19 Td. at 35-36.

‘ 20 Id. at 35.

21 Jd. at 36.

22 Td. at 38.

;

10a

and the employees affected were entitled to return to

work whether or not they complied with the timely exer-

cise of the contractual displacement rights.

The Court found that it was appropriate to grant back

pay as a remedy to correcting Maine Central’s status quo

violations. It also found that remedy appropriate against

D & H and B & M “because of their illegal conduct and

to secure to the employees meaningful relief for the vio-

lation of their collective bargaining rights since May 16,

1986.” *

Appellant carriers challenge the district court’s ruling

principally on the ground that the disputes are “minor”

ones, involving the interpretation of the collective bar-

gaining contracts, and thus subject to the exclusive juris-

diction of the adjustment boards. In our view, because

the Maine Central controversy presents different underly-

ing legal principles than that involving D& H and BEM,

it is subject to a different analysis and results.

The Maine Central dispute

Basic to Maine Central’s argument is its contention

that the job abolishments after the Presidential Order

went into effect, were actions “arguably” warranted by

the existing collective bargaining contract. This argu-

ment is premised on a line of cases decided in this cir-

cuit, starting with Airlines Stewards and Stewardesses

Ass’n Vv. Caribbean Atlantic Airlines, Inc., 412 F.2d 289

(1st Cir. 1969), in which we held that “where the rail-

road asserts a defense based on the term of the existing

collective bargaining agreement, the controversy may not

be termed a major dispute unless the claimed defense is

so obviously insubstantial as to warrant the inference

that it is raised with intent to circumvent the procedures

perceived by § 6 for alteration of existing agreements.”

Id. at 291. We further refined this test in Carbone v.

23 Jd. at 40. Emphasis supplied.

er ey

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lla

Meserve, 645 F.2d 96 (1st Cir. 1981), in which we stated

that if it is even “arguable” that the railroad’s action

was one warranted by the collective bargaining contract

and not one without any basis in the contract, the dis-

pute was a “minor” one subject to the adjustment board’s

exclusive jurisdiction. As recently as April 19, 1986, we

reaffirmed the Carbone statement when we said that “our

task is not to arbitrate this dispute, but to determine if

‘it is even arguable’ that the railroad’s action was war-

ranted by the contract.” Brotherhood of Locomotive En-

gineers V. Boston & Maine Corp., 788 F.2d 794, 798 (1st

Cir. 1986).

As the district court correctly ruled, for purposes of

Section 10 and the Presidential Order, April 2, 1984 is

the crucial date in determining the conditions that must

prevail regarding the status quo. It is the “actual, ob-

jective working conditions and practices, broadly con-

ceived,” ** existing on that date that are the standard

for the parties’ status quo obligations.

Focusing on that date, it is undisputable that Maine

Central had the contractual right to abolish jobs perma-

nently. In fact, as previously indicated in this opinion,

it was the BMWE’s desire to curtail Maine Central’s con-

tractual rights to so act that caused BMWE to serve the

April 2, 1984 notice on Maine Central in the first place.

Thus Maine Central’s right to carry out job abolishments,

even after the Presidential Order, remained unaffected

because that right was part of the status quo.

If the sole issue presented to the district court were

one in which the issue was whether or not Maine Central

had the right under the collective bargaining contract to

abolish jobs, we would unquestionably be required to

reverse that court and to order submission of that con-

troversy to arbitration before the adjustment board.

24 Detroit and Toledo Shoreline Railroad Co., supra.

12a

Such a question would clearly involve a “minor” dispute

requiring the interpretation or application of an existing

collective bargaining agreement. Brotherhood of Railroad

Trainmen, supra. But the framing of the Maine Central

issue in such terms is obviously a red herring. No one,

except Maine Central in its obfuscation of the questions

presented, claims that is an issue or that Maine Central

lacks the power to abolish jobs pursuant to the collective

bargaining agreement after the Presidential Order of

May 20, 1986. RLEA agrees that Maine Central has

that contractual right (see Appellee’s Brief at page 23),

and the district court specifically so ruled.**

The real question as respects the Maine Central con-

troversy is whether a claim that the carrier has dis-

criminated against its employees because they have en-

gaged in activities protected by the RLA falls within the

jurisdiction of the adjustment boards, or whether such

an allegation may be brought in the courts. Contrary to

Maine Central’s assertion, the cases cited above, see ante

at 13-14—holding that a contract defense renders a dis-

pute minor, rather than major, so long as the claimed

defense is arguable—are inapposite. The case against

Maine Central presents a claim of statutory violation.

In our opinion such a controversy involves the substan-

tive rights protected by the RLA and is within the com-

petency of the district courts because these are claims

that cannot be resolved by interpretation of the collective

bargaining agreement. Railroad Trainmen v. Howard,

343 U.S. 768, 774 (1951) (“The claims here cannot be

resolved by interpretation of a bargaining agreement so

as to give jurisdiction to the Adjustment Board .. .”);

Conrad v. Delta Air Lines, Inc., 494 F.2d 914, 917-918

(7th Cir. 1974) (suit alleging that RLA was violated by

discharge motivated by anti-union animus states a judi-

cial claim and is not committed to the jurisdiction of

adjustment board because it does not arise from differing

25 See ante at 10.

13a

interpretations of collective bargaining agreements) ; Air

Line Pilots Association v. United Air Lines, Inc., supra,

(same) ; Intern. Ass’n of Machs., etc. v. Northwest Air-

lines, 494 F.2d 914, 918 (7th Cir. 1974) (same, dicta) ;

Brotherhood of Railroad Train. v. Central of Ga. Ry. Co.,

305 F.2d 605, 607-609 (5th Cir. 1962) (same); Brother-

hood of Railroad Trainmen v. Smith, 251 F.2d 282, 284-

286 (6th Cir. 1958) (same). See also Stepanischen v.

Merchants Despatch Transp. Corp., 722 F.2d 922, 924-

927 (1st Cir. 1983).

Section 3 of the RLA * establishes adjustment boards

for the purpose of arbitrating “disputes between an em-

ployee or group of employees and a carrier or carriers

growing out of the interpretation or application of agree-

ments concerning rates of pay, rules, or working condi-

tions.” 45 U.S.C. § 153, First (i). This language clearly

limits the grievances which mandatorily must be sub-

mitted to the adjustment boards to those arising out of

the collective bargaining agreement. Elgin, J. & E.R. Co.

v. Burley, 325 U.S. 711, 723-726 (1944). This of course,

includes discharge disputes which “arguably” grow out

of grievances or contract interpretation. Radin v. United

States, 699 F.2d 681 (4th Cir. 1983). But, where the

terms of a contract or rights arising therefrom are not

at issue, but rather the claims involve statutory obliga-

tions imposed by the RLA, discriminatees, even though

covered by collective bargaining contracts, have avail-

able judicial remedies to enforce their statutory rights.

Railroad Trainmen v. Howard, supra; Conrad v. Delta

Air Lines, Inc., supra; Steele v. L. & R. Co., 323 USS.

192 (1944); Mavis v. Brotherhood of Ry., Airline &

S.S. Clerks, 585 F.2d 926, 928. (8th Cir. 1978); Airline

Pilots Assoc. v. United Airlines, supra.

Appellants have not pointed to any contractual provi-

sion giving the adjustment boards jurisdiction over this

type of controversy, i.e., a claim of an RLA violation.

26 45 U.S.C. § 158.

l4a

Curiously enough, neither party offered into evidence the

arbitration clause of the collective bargaining agree-

ment.?7 We thus must assume that there is nothing defin-

itive in the contract at the very least indicating the in-

tention of the parties to submit statutory violations to

arbitral jurisdiction.*

Where a case such as this one presents a claim of

violation of the RLA and a defense that the challenged

action was permitted by the collective bargaining agree-

ment, the district court must weigh and assess the merits

of the parties positions to determine the question of its

jurisdiction. International Association of Machinists &

Aerospace Workers v. Northwest Airlines, 673 F.2d 700

(3d Cir. 1982) (suggesting in detail the analysis that a

district court should undertake). If the court finds merit

to the claim that substantive rights protected by the RLA

are at stake, the controversy is properly before the dis-

trict court. See Railroad Trainmen v. Howard, supra,

and other cases cited ante at pp. 15-16.

The RLEA alleged, and the district court found, that

Maine Central chose to abolish the jobs of those employees

who had engaged in protected activity. This finding is

supported by the evidence and must be honored by this

appellate court. Rule 52(a), Fed. R. Civ. P. There is

no question but that such action is contrary to the rights

of employees as established in Section 2, Fourth, of the

RLA.” It is fallacious to contend that the abolishment

27 See Railway Labor at p. 27 n.9.

28 We leave for another day the validity of such contractual provi-

sion in the context of the RLA. Compare Barrentine v. Arkansas-

Best Freight Systems, 450 U.S. 728 (1980) (employees with claims

under the Fair Labor Standards Act are not required to proceed

through collective bargaining arbitration but may file action in

court) ; Alexander v. Gardner-Denver, 415 U.S. 36 (1973) (same

result as regards Title VII claims).

29 45 U.S.C. § 152, Fourth:

Employees shall have the right to organize and bargain collec-

tively through representatives of their own choosing. ... No

15a

by the Maine Central of job positions in retaliation for

the employees’ having engaged in activities protected by

the RLA is warranted by the collective bargaining agree-

ment. Maine Central points to no such language, and

were such a provision to exist, it would be clearly in-

valid as contrary to law. 29 U.S.C. § 152, Fourth.

The district court was thus correct in assuming juris-

diction over the Maine Central suit. As seen above, how-

ever, the legal basis for affirming jurisdiction over the

Maine Central dispute is validated on somewhat different

grounds than those used by the district court.

The remedy

The district court issued an injunction reinstating

Maine Central’s employees and ordering back pay to all

employees who were not returned to service after the

end of the strike, and to all employees who were returned

but were thereafter furloughed by reason of the May 19

job abolishments. Such a remedy is, on its face, appro-

priate to correct Maine Central’s discriminatory actions.

Maine Central challenges the back pay implementation

alleging that even if the job abolishments were properly

invalidated, full back pay for the entire 50-day period

between May 19 and July 14 (when these employees were

reinstated in compliance with the court’s order) will give

the employees a “windfall,” because they should only re-

ceive back pay to the date when they would have validly

carrier, its officers, or agents shall deny or in any way question

the right of its employees to join, organize, or assist in or-

ganizing the labor organization of their choice, and it shall be

unlawful for any carrier to interfere in any way with the

organization of its employees, or to use the funds of the carrier

in maintaining or assisting or contributing to any labor or-

ganization, labor representative, or other agency of collective

bargaining, or in performing any work therefor, or to in-

fluence or coerce employees in an effort to induce them to join

or remain or not to join or remain members of any labor

organization....

16a

been terminated in the absence of anti-union animus.

See Mastell Trailer Corp. v. N.L.R.B., 682 F.2d 753, 755-

56 (8th Cir. 1982). Maine Central points to the fact

that after the judgment was entered in this case, the

district court approved, and the Maine Central carried

out, a number®*® of job abolishments, after giving the

specified advance notice. Maine Central thus claims that

on May 19, the most that those employees whose jobs

were abolished with court approval were entitled to was

the 5 days’ pay equivalent to the contractual advance

notice requirement. Appellee’s arguments to the contrary

are vague, confusing and not convincing.

There is no question but that the purpose of equitable

relief of the nature here in question is to make the ag-

grieved party whole. As previously stated, the remedy

granted, on its face, does not appear inconsistent with

that principle. The implementation of that remedy, how-

ever, may be another matter.

Although the district court stayed the back pay remedy

pending this appeal, the parties have pointed to no defin-

itive ruling of the district court on this issue nor do

we find one in the record before us. Because questions

of compliance with a decree are best handled at the

trial level, we are of the view that the interpretation of

the decree in question is best left, in the first instance,

to the issuing court. Thus the question raised regarding

the appropriate back pay due is remanded to the district

court for reexamination.

The dispute of D& Hand B&M

As previously indicated, the district court’s ruling as

to D & H and B & M’s actions stand on a different foot-

ing. It did not find the job abolishments a violation of

the Presidential Order, because the order was inapplica-

30 Although a total of 725 jobs were abolished, it is not clear from

the record, how many of these were Maine Central positions or

contract positions.

17a

ble to them. Furthermore no discriminatory motive was

attributed to these carriers, or at least no finding to such

effect underlies the court’s conclusions. Instead the court

ruled that they engaged in an “anticipatory breach” of

the collective bargaining agreements and of Section 2,

First of the RLA* by failing to maintain said agree-

ments. The court concluded that it had jurisdiction to

hear such a controversy and ruled for plaintiffs.

The district court’s opinion is significantly bare of any

citations in support of this ruling. It would seem that

any breach of an existing collective bargaining agree-

ment, whether “anticipatory” or otherwise, is precisely

what an arbitrable “minor” dispute is concerned with.

Brotherhood of Railroad Trainmen v. Chicago River &

Ind. R.R., supra. Whether a party is in breach of a col-

lective bargaining agreement, “anticipatorily” or not, re-

quires “the interpretation [and] or application” of that

agreement. See 45 U.S.C. § 153, First (1). Where such

application or interpretation is central to the attempted

exercise of allegedly existing rights, a “minor” dispute

exists which should be litigated before the adjustment

boards. Illinois Central R. Co. v. Brotherhood of R.R.

Trainmen, 398 F.2d 973 (6th Cir. 1968).

It is undisputed that D & H and B & M had the con-

tractual right to abolish jobs. The action that they took

was “arguably” within their contractual rights. Any

challenge to this action which is not based on a violation

of specific statutory rights, is without the court’s juris-

31 45 U.S.C. § 152, First:

It shall be the duty of all carriers, their officers, agents and

employees to exert every reasonable effort to make and main-

tain agreements concerning rates of pay, rules, and working

conditions, and to settle all disputes, whether arising out of

the application of such agreements or otherwise, in order to

avoid any interruption to commerce or to the operation of any

carrier growing out of any dispute between the carrier and

the employees thereof.

18a

diction and must be processed before the adjustment

boards. Caribbean Atlantic Airlines Inc., supra; Car-

bone, supra; Brotherhood of Locomotive Engineers, supra.

The decision of the district court as to the D & H and

B & M dispute is thus reversed and remanded with in-

structions that it be referred to the appropriate adjust-

ment boards.

The decision of the district court is affirmed in part,

reversed in part, and remanded for action consistent with

this opinion.

19a

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

Civil No. 86-0122-P

RAILWAY LABOR EXECUTIVES ASSOCIATION,

Plaintiff

Vv.

BOSTON & MAINE CORPORATION,

DELAWARE & HUDSON RAILWAY COMPANY,

MAINE CENTRAL RAILROAD COMPANY, and

PORTLAND TERMINAL COMPANY,

Defendants

Civil No. 86-0194-P

THE BOSTON & MAINE CORPORATION,

DELAWARE & HUDSON RAILWAY Co.,

MAINE CENTRAL RAILROAD COMPANY, and

PORTLAND TERMINAL COMPANY,

~ Plaintiffs

UNITED TRANSPORATION UNION,

SHEETMETAL WORKERS INTERNATIONAL ASSOCIATION,

BROTHERHOOD OF RAILROAD SIGNALMEN,

BROTHERHOOD OF LOCOMOTIVE ENGINEERS,

BROTHERHOOD OF RAILWAY CARMEN,

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,

IRON SHIP BUILDERS, BLACKSMITHS, FORGEMEN

& HELPERS,

BROTHERHOOD OF RAILWAY, AIRLINE &

STEAMSHIP CLERKS,

INTERNATIONAL BROTHERHOOD OF FIREMEN & OILERS,

INTERNATIONAL ASSOCIATION OF MACHINISTS, and

INTERNATIONAL ASSOCIATION OF ELECTRICAL WORKERS,

Defendants

(Transferred from U.S. District Court, District of

Massachusetts, and Consolidated )

20a

FINDINGS OF FACT, CONCLUSIONS OF LAW,

OPINION AND ORDER ON PLAINTIFF'S

COMPLAINT FOR PERMANENT

INJUNCTION

CARTER, District Judge

I. Procedural Background

This is an action arising under the Railway Labor Act

(hereinafter “RLA’”), 45 U.S.C. §§ 151, et seq. The

Plaintiff, Railway Labor Executives’ Association (here-

inafter “RLEA”), is a voluntary, unincorporated associa-

tion of the Chief Executive Officers of nineteen standard

labor organizations which collectively represent virtually

all organized railroad employees in the nation.

The Defendants are common carriers by railroad engaged

in interstate commerce. Boston & Maine Corporation

(hereinafter “B&M”) transports passengers in Massa-

chusetts and Vermont and freight in New York, Massa-

chusetts, Maine, New Hampshire, Vermont and Connecti-

eut. Delaware & Hudson Railway Company (hereinafter

“D&H”’’) transports freight in New York, Pennsylvania,

New Jersey, Maryland and Virginia. Maine Central

Railroad Company (hereinafter “MEC”) transports

freight in Maine, New Hampshire and Vermont. Port-

land Terminal Company (hereinafter “PT’’) provides

switching and terminal services in Portland, Maine.

MEC, D&H and B&M are owned by Guilford Transpor-

tation Industries, Inc. (hereinafter “Guilford’”’), which

is headquartered in North Billerica, Massachusetts. PT

is a wholly-owned subsidiary of MEC. Together, MEC/

PT, D&H and B&M constitute the Guilford Rail System.

This matter is now before the Court for adjudication

on the merits of the Plaintiff’s claim for a permanent in-

junction requiring the four carrier Defendants in Civil

No. 86-0122-P to restore the status quo of the relation-

ship between each carrier and its contract labor force

2la

pursuant to section 10 of the RLA (45 U.S.C. § 160).

The labor dispute which underlies this claim arose out

of negotiations prior to April 2, 1984, between the Maine

Central Railroad Company and its wholly-owned subsid-

iary, Portland Terminal Company, (hereinafter “MEC/

PT”) and the Brotherhood of Maintenance of Way Em-

ployes (hereinafter “BMWE”’).

Action Civil No. 86-0122-P, was commenced by the

RLEA on March 24, 1986, in this Court by a Complaint

that sought, inter alia, preliminary and permanent in-

junction relief protecting the rights of the membership

of the unions throughout the Guilford system to honor

BMWE picket lines established at the property of any

Guilford carrier and to enforce the carrier’s obligations

under section 2, First of the RLA to exert every reason-

able effort to maintain existing agreements. Action Civil

No. 86-0194-P was originally commenced by the Guilford

carriers in the United States District Court for the Dis-

trict of Massachusetts on April 26, 1986, by a Complaint

which sought preliminary and permanent injunctive re-

lief against the memberships of some eleven craft unions

barring those memberships from, inter alia, any picket-

ing of or work stoppage against the Guilford carriers

“over the carriers’ April 21, 1986, notices or the subject

matter of those notices.”" Complaint at 6-7. A Tem-

1The April 21, 1986 notice referred to is Plaintiff’s Exhibit

10(a). That is the notice which was sent to all the employees

represented by the fifteen unions representing employees of one

or more of the four Guilford carriers. The notice was also sent

to the General Chairman of each of those unions. The notice pro-

vided as follows:

This constitutes notice that you are expected to report back

to work on or before April 25, 1986. Employees who are not

reporting for work or whose assignment has been abolished

as well as employees furloughed prior to the strike should

contact their supervisor for assistance in reassignment or other

instruction. The seniority rights of employees who return

will be observed, except that employees whe have chosen not to

22a

porary Restraining Order was entered therein by Keeton,

D.J., on April 26, 1986, enjoining both parties from im-

plementing any self-help in respect to the April 21, 1986

notices of the carriers. On May 13, 1986, with the con-

sent of the parties, the TRO was extended by Wolf, D.J.,

until decision on the Plaintiffs’ motion for a preliminary

injunction. Judge Wolf filed a Memorandum and Order

on May 5, 1986, staying further proceedings in the

matter in the United States District Court for the Dis-

trict of Massachusetts until this Court could decide

whether these matters should proceed together in the Dis-

trict of Maine or the District of Massachusetts.

On May 16, 1986, this Court entered its Memorandum

of Opinion and Order, denying in Civil No. 86-0122-P the

Defendant’s motion to transfer the case to the United

States District Court for the District of Massachusetts.

On the same day, the President issued Executive Order

No. 12557, which established Emergency Board No. 209

pursuant to section 10 of the RLA to investigate the con-

troversy between the parties and report to the President

concerning the dispute. On May 22, 1986, Judge Wolf

entered an Order in Civil No. 86-0194-P (then C.A. No.

86-1327-W on the docket of the Massachusetts Court),

work to this date will not be allowed to displace a junior em-

ployee with an employment relationship prior to March 4,

1986, who has been reporting to work.

The assignments of employees who choose not to report

back to work on or before April 25, 1986, will be filled with

permanent replacements as required by the carrier.

Plaintiff’s Exhibit 10(a). The notice was issued to employees of

D&H and B&M at a time when none of them were striking their

employers but when they had been for a period of time respecting

secondary picket lines put up by BMWE employees of MEC/PT.

It was this notice which precipitated threats of strikes against

B&M and D&H by their respective employees and the commence-

ment of the Massachusetts action, now Civil No. 86-0194-P, by

the Guilford carriers resulting in the issuance of Judge Keeton’s

Temporary Restraining Order of April 26, 1986, entered therein.

ee ee Cee er ME eT Te rate nt Cir nel meen nen eer

23a

transferring that case to this court for joinder with Civil

No. 86-0122-P, pursuant to this Court’s Order of May

16, 1986.

This Court endorsed, on May 23, 1986, with the con-

sent of counsel, the Plaintiffs’ then pending motions for

preliminary injunctive relief as requiring no Court action

because they had been rendered moot by the Executive

Order creating Emergency Board No. 209. The members

of the Board were appointed on that same day, and since

that time hearings have been held by the Board which

resulted in the issuance on June 20, 1986, of the Report

to the President by Emergency Board No. 209. (Defend-

ants’ Exhibit 55.) The Temporary Restraining Order

entered by Judge Keeton, as extended by the terms of the

Consent Order entered by Judge Wolf, expired on June 2,

1986. The cases were consolidated for further proceed-

ings by a Bench Order.

Plaintiffs in the consolidated matters, on May 19, 1986,

filed a motion for a new temporary restraining order

requiring the Guilford carriers to observe the status quo

created by section 10 of the RLA with the issuance of

the aforesaid Executive Order. This motion was denied

by the Court’s Order filed on May 23, 1986. Plaintiff had

filed on May 20, 1986, a motion for a preliminary injunc-

tion to the same effect and an amendment to the Com-

plaint, seeking a permanent injunction to that effect.

After pretrial conferences and discovery, these requests

were set for hearing to commence on June 18, 1986. At

the commencement of the hearing, the Court granted, over

the Defendants’ objections, the Plaintiff’s motion to amend

the Complaint and its motion to advance the trial on the

mevits of Plaintiff’s claim for a permanent injunction

and to consolidate that trial with the hearing on the pre-

liminary injunction. The hearing was held in the period

June 18-24, 1986. The matter is now properly postured

for adjudication of the Plaintiff’s claim for a permanent

injunction.

24a

II. Findings of Fact

On April 2, 1984, in compliance with section 6 of the

Railway Labor Act (45 U.S.C. § 156), the BMWE served

notice on MEC/PT of its desire to accomplish changes in

numerous provisions of the existing collective bargaining

agreements. For purposes of section 10, this is when the

“dispute” arose. In negotiations leading up to this notice

BMWE attempted to obtain a protective-type agreement

to stanch the massive furlough practices of MEC/PT in

respect to maintenance of way employees. Tr., Vol. 2, at

2.2 In 1981-82 there were 350 to 400 maintenance of

way employees during the carrier’s peak seasonal period.

By October 1985 the size of that work force was 120 to

165. Id. at 2-38. The section 6 notice sought primarily

to achieve contract terms that would (1) afford greater

job protection for BMWE members than existed under

the existing collective bargaining agreement and (2)

limit the carrier’s right to achieve reductions in the work

force of contract labor by future job abolishments.

The parties did not resolve the dispute through nego-

tiations, and on September 19, 1984, the BMWE applied

to the National Mediation Board (hereinafter “NMB”)

for its assistance. Mediation followed, and on September

26, 1985, in accordance with section 5, First (45 U.S.C.

§ 155, First) of the Railway Labor Act, the NMB prof-

fered arbitration which was declined by BMWE on Oc-

tober 2, 1985. The NMB notified the parties that they

were required to maintain the status quo for thirty days

without resort to self-help under section 5, First, of the

Act (45 U.S.C. § 155, First).

The parties, MEC/PT and BMWE, entered into an

agreement dated November 13, 1985, (Plaintiff’s Exhibit

1) by which the Carrier agreed to a moratorium on then-

2The Court has numbered the volumes of the original tran-

script in red numerals. Citations to the transcript refer to these

volume designations and to page designations.

25a

proposed job abolishments and both parties agreed, inter

alia, to a moratorium on the exercise of self-help through

February 28, 1986. Under this moratorium agreement,

as of November 18, 1985, there was a combined main-

tenance of way work force of 123 on MEC/PT. 7d. at 6.

The moratarium agreement expired on February 28,

1986, and on that date both sides were free to resort to

self-help. Jd. at 5.

The parties met on several occasions, the last being

March 3, 1986, and were unable to resolve their differ-

ences. On February 28, 1986, MEC/PT abolished 15 to

20 maintenance of way positions. Jd. at 33-34. In re-

sponse to that action, on March 3, 1986, BMWE exer-

cised self-help and initiated a strike against PT and

established pickets against it. On March 4, BMWE

struck and established pickets against MEC. Id. at 8.

On March 5, BMWE established pickets against B&M

and on March 17 initiated pickets against D&H. Id.

BMWE did not strike against BEM and D&H. Id. at 12.

Less than two percent of the contract employees of the

four carriers crossed BMWE’s picket lines. Jd. at 9.

Immediately upon the establishment of picket lines on

MEC/PT, all employees who held a position that was

covered by a collective bargaining agreement and who

honored the picket lines were informed by the carrier

that their positions were temporarily abolished. Jd. at

170, 174. After the picketing began on B&M and D&H

those carriers, on or about April 2, 1986, also abolished

all of their contract labor positions. Cronin Dep.,

5/29/86, at 19. These early job abolishments were in-

tended to be temporary in nature and it was the car-

rier’s intent that the jobs be restored upon termination

of the strike. Jd. While the strike against MEC/PT was

in progress all four carriers suspended their labor con-

tracts. Tr., Vol. 2, at 193. Once the strike ended, the

labor contracts were intended to go back into place. Id.

at 193-94.

26a

Various legal proceedings were commenced by the car-

riers and BMWE further extended its self-help action to

selected railroads beyond the confines of the Guilford

system. Between April 9 and 14, 1986, the carriers be-

came aware that the American Association of Railroads

had recommended to the NMB that it ask the President

to appoint an Emergency Board. Jd. at 194. The car-

riers were also aware on April 14 that the NMB had in

fact asked the President to appoint an Emergency Board.

Id. at 195. After they became aware of this, and believ-

ing that the appointment of an Emergency Board and

issuance of a back-to-work order was imminent, the car-

riers decided to permanently abolish the positions of all

employees who were honoring BMWE’s picket lines and

did so on or about April 18, 1986. The employees whose |

jobs were permanently abolished were the same employ-

ees whose positions were earlier temporarily abolished for

the term of the strike. Jd. at 195-96; Cronin Dep.,

5/29/86, at 18. No employee who crossed BMWBH’s picket

lines had his/her position abolished. Cronin Dep.,

5/29/86, at 17.

Regardless of the various reasons given for these

abolishments by the carrier, the Court finds that the |

effect of the permanent abolishments was to discriminate 3

against employees who exercised their rights to honor |

picket lines. The fact that only employees who honored

BMWE’s picket lines had their jobs abolished leads the |

Court to conclude that the purpose of this action was to

discriminate against and to punish employees who had

continued to honor BMWE’s picket line.

On April 21, 1986, the carriers sent a notice bearing

that date to all employees who were honoring BMWE’s

picket lines. See, supra, at 3, n. 1. The implementation

of the policy established by the notice resulted in any

employee who had up to that time exercised the right to |

honor the BMWE picket lines and who did not return

to work by April 25 losing all displacement rights under |

heeeninensinenaeammaentnaenl

Ry ae ee, ee er

27a

the collective bargaining agreement against employees

who had worked during the strike.

Contract provisions and past practices on all the car-

riers require that an employee whose position has been

abolished exercise his seniority by displacing a more

junior employee from an unabolished position within a

specified period. Cronin Affidavit, 4; Tr., Vol. 2, at

24, 60. This practice is known as “bumping” or “bunt-

ing.” At some locations on B&M’s property, to exercise a

“bump,” an employee must physically go into the junior

employee’s work area, tap him on the shoulder and in-

form him that he is being displaced. If a picket line is

in place, that requires the senior employee to cross a

picket line in order to exercise his displacement right.

Id. at 431-33. On all of the carriers, after exercising dis-

placement rights by “bumping,” the senior employee must

be able to commence at the next scheduled shift perform-

ance of the job responsibilities of the junior employee

who has been displaced by the “bump.” Cronin Dep.,

6/4/86, at 25. To do so, he is obviously required to cross

any picket line that may be in place.

During the strike, the carriers insisted on compliance

with the bumping rule. The rigid application of these

rules, while the strike or secondary picketing was going

on, forced the senior employees to choose between their

right to honor a union picket line and their seniority and

displacement rights. Virtually none of the B&M and

D&H employees honoring BMWE’s picket lines whose

positions were permanently abolished on or about April

18, 1986, exercised their seniority displacement rights by

“bumping” junior employees within the time limits under

their respective labor agreements. Jd. at 33.

The subject labor agreements also require that an em-

ployee whose position is abolished and who does not

exercise his displacement rights in a timely fashion file

his name and address with the carrier within a specified

period of time. The agreements provide that a failure to

28a

do so can result in the loss of that employee’s seniority.

Id. at 31-382. This rule has not been strictly enforced

in the past on any of the carriers.

The evidence discloses a past instance of a maintenance

of way employee having his seniority terminated because

of failure to comply with the rule. Tr., Vol. 2, at 25, 56,

365. The evidence also discloses that on January 29,

1985, the MEC/PT eliminated the seniority of 17 em-

ployees for failure to comply with the rule while carry-

ing out a review to update seniority rosters. This senior-

ity termination rule is not automatically or summarily

imposed under past practice. On the B&M, for example,

it was usual practice for such terminations to be con-

ferenced between management and the union representa-

tive and BMWE would be given an opportunity to notify

individuals who had not filed their names and addresses

of the danger to their seniority. In fact, this is the

practice that was followed in connection with the Janu-

ary 29, 1985, seniority terminations. Tr., Vol. 4, at

17-18.

This prior practice was disregarded when the carriers

on May 27, 1986, unilaterally terminated the seniority

of all employees who did not file their names and ad-

dresses in a timely fashion during the strike following a

failure to exercise their displacement rights. The effect

of this decision is that 145 BMWE employees on the

B&M were notified that their seniority had been ter-

minated. Tr., Vol. 2, at 26. The D&H did not apply the

seniority termination rule in question against its Broth-

erhood of Railroad Signalmen employees. Twenty-four

out of twenty-six employees did not file their names and

addresses, but none of those twenty-four had their senior-

ity terminated. Jd. at 408. Thus, it is apparent that the

carriers selectively enforced this contract provision.

Immediately upon learning that the President had cre-

ated an Emergency Board in respect to the dispute

between MEC/PT and its employees, the RLEA, on be-

Se Ne ee Oe

29a

half of all labor organizations on the carriers’ properties,

made unconditional offers to all four carriers for an im-

mediate return to work. 7d. at 10-11, 211; Plaintiff’s

Exhibits 2, 3. On May 19, 1986, the MEC/PT allowed

all of their striking employees to return to the positions

they had held before the strike and retained them

throughout the week of May 19th. During that week,

however, the carrier issued job abolishment notices appli-

cable to 44 percent of the contract labor force. Peters

Affidavit, 17 2, 3; Tr., Vol. 4, 119.

The B&M and D&H, however, did not recall their en-

tire pre-strike work force. Those carriers took the view

that their labor agreements continued to be suspended

until determinations could be made as to the number of

contract employees required to operate after cessation of

the secondary picketing against those carriers and the

requisite number of positions could be bulletined for bid-

ding and an award could be made. Tr., Vol. 2, at 212-15.

This process took slightly in excess of five days, during

which period those carriers continued to use management

personnel and replacement employees hired during the

secondary picketing to do contract work. Jd. at 212-13.

Ultimately, through the process of bulletining and award

of positions, the D&H restored approximately 50 percent

of its pre-strike positions, while the B&M restored ap-

proximately 55 percent. Carr Affidavit, at 2.

Further findings of fact will be made in the course

of the discussion of specific issues as such findings may

be pertinent to the discussion.

III. The Applicable Legal Standards

Under the Railway Labor Act

A. The Obligations Imposed by the Act

All of the carriers which are parties to this action, and

all of their employees, are subject to the statutory obliga-

tion set forth in section 2, First, of the Railway Labor

Act, which requires them

30a

to exert every reasonable effort to make and main-

tain agreements concerning rates of pay, rules and

working conditions, and to settle all disputes .. . in

order to avoid any interruption to commerce or to

the operation of any carrier growing out of any

dispute between the carrier and the employees

thereof. |

45 U.S.C. § 152, First. This duty, which is “central to

the effective working of the Railway Labor Act,” is a

legal obligation “enforceable by whatever means might

be developed on a case-by-case basis.” Chicago & North-

west Railway Co. v. United Transportation Union, 402

U.S. 570, 577, 578 (1971); see also Brotherhood of Rail-

road Trainmen v. Jacksonville Terminal Co., 394 USS.

369, 377-78 (1969).

Beyond the general obligation imposed by section 2,

First, the RLA provides two different avenues for the

resolution“of disputes between carriers and labor organi-

zations depending upon whether those disputes are “minor

disputes” or “major disputes.” See, e.g., Elgin, Joliet &

Eastern Ry. v. Burley, 325 U.S. 711 (1944). The Court

of Appeals for the First Circuit recently summarized the

well-settled law with respect to major/minor disputes as

follows:

A minor dispute contemplates an existing agreement

and a disagreement regarding “the meaning or

proper application of a particular provision with ref-

erence to a specific situation or to an omitted case.”

[Citations omitted.] Such disputes are entrusted ex-

clusively to arbitration by the National Railroad

Adjustment Board (NRAB). 45 U.S.C. § 153, First.

A district court has no jurisdiction over such dis-

putes, and thus a party may not obtain a status quo

injunction.

Brotherhood of Locomotive Engineres v. Boston & Maine

Corporation, 788 F.2d 794, 797 (1st Cir. 1986). Thus,

ae aes

sla

where a dispute is minor for purposes of the RLA, a car-

rier may continue to apply its interpretation of the agree-

ment during the period of mandatory arbitration and no

strikes are permitted over that particular issue during

the pendency of the minor dispute. Jd. A district court

has no jurisdiction to enjoin conduct which is the subject

of a minor dispute in an effort to resolve the dispute.*

3 The carriers have vigorously contended that each action of

each of the carriers challenged by the Plaintiff generates only a

“minor dispute” under the RLA, and as such is subject to the

exclusive jurisdiction of the Adjustment Board. The claim is that

the Court is without jurisdiction to adjudicate these challenges

because they raise issues concerning the interpretation and appli-

cation of the existing collective bargaining agreements. This con-

tention fails for two reasons.

First, the specific conduct on which the Court herein adjudicates

the carriers to be in violation of their obligations under section 10

and section 2, First, respectively, of the RLA clearly arises out of

and continues the “major dispute,” which was the subject of the

BMWE’s section 6 notice against the MEC/PT. The essence of

that “major dispute’ was the BMWE’s quest to change the work

rules and working conditions to afford its members greater protec-

tion against the carriers’ program of work force reductions through

job abolishments. The conduct on which the Court adjudicates the

MEC/PT to be in violation of their section 10 obligations is the

implementation of the post-May 19 work force reductions through

a program of job abolishments by those carriers. The conduct for

which the B&M and D&H are found to be in violation of their

section 2, First, obligations is their implementation of the perma-

nent job abolishments of April 18, 1986. The carriers thus are

found in violation of the RLA provisions for the same conduct

which precipitated the “major dispute” of April 2, 1984, (e.g.,

accomplishing work force reductions by a program of job abolish-

ments). That conduct continues the carriers’ assertion of its

position in the original “major dispute” and as such is an exten-

sion of it. Thus, the issues that are the basis of the dispositive

adjudication of this case against each carrier are precipitated by

“major disputes.” Hence, the Court’s line of analysis and predicate

for its decision does not entrench upon the “minor dispute” juris-

dictional prohibition.

Second, the carriers’ focus on this jurisdictional issue is overly

large in scope. Clearly, the Court may not decide questions arising

32a

A major dispute, on the other hand, “relates to the

formation or modification of the collective bargaining

agreement, including disputes over rates of pay, rules, or

working conditions.” Jd. Section 2, Seventh, of the RLA,

45 U.S.C. § 152, Seventh, prohibits the carriers from

changing “the rates of pay, rules or working conditions”

of employees except in accordance with the strictures and

procedures of section 6 of the RLA, 45 U.S.C. § 156.

Thus, “if a district court finds the existence of a major

dispute, it may enjoin either party from altering the

status quo during the course of the negotiated proceed-

ings mandated by section 6 of the RLA.” Brotherhood of

Locomotive Engineers v. Boston & Maine Corp., 788 F.2d

at 797.

The statutory proceedings required in order to accom-

plish changes in agreements pursuant to section 6 are

described as “purposely long and drawn out, based on

the hope that reason and practical considerations will

out of interpretation or application of existing terms of the collec-

tive bargaining agreement for the purpose of providing contract

relief or enforcing the specific contract provisions. Such matters

are clearly committed to the jurisdiction of the Adjustment Board.

Here, however, the Court addresses a larger question: whether

the carriers have violated their obligations under the RLA pro-

visions. Such issues are clearly within, are in fact committed to,

the jurisdiction of the Court. The fact that such larger issues may

touch upon, or may even subsume, lesser issues involving contract

interpretation and/or application does not oust the Court of its

jurisdiction over issues properly within the ambit of its statutory

authority under the RLA. The contrary conclusion would prevent

the Court from ever considering any conduct of the carrier alleged

to be in violation of the RLA provisions which also arguably could

involve a question of interpretation or application of the existing

contract. Indeed, most efforts to change work rules and working

conditions, within the scope of section 6, could well, and usually will,

also precipitate questions as to whether existing contract terms

permit the attempted changes. The rule for which the carriers

here contend is so overly broad in its scope that its application

could well totally abolish the jurisdiction of the Court over alleged

violations of the RLA provisions. >

33a

provide in time an agreement that resolves the dispute.”

Railway Employees v. Florida East Coast Railway Co.,

384 U.S. 238, 246 (1966). See also Detroit and Toledo

Shore Line Railroad Co. v. United Transportation Union,

396 U.S. 142, 149 (1969). The procedures brought to

bear by section 6 were comprehensively described by Jus-

tice Harlan:

The Act provides a detailed framework to facili-

tate the voluntary settlement of major disputes. A

party desiring to effect a change of rates of pay,

rules, or working conditions must give advance writ-

ten notice. § 6. The parties must confer, § 2[,] Sec-

ond, and if conference fails to resolve the dispute,

either or both may invoke the services of the Na-

tional Mediation Board, which may also proffer its

services sua sponte if it finds a labor emergency to

exist. § 5[,] First. If mediation fails, the Board must

endeavor to induce the parties to submit the contro-

versy to binding arbitration, which can take place,

however, only if both consent. §§ 5[,] First, 7. If

arbitration is rejected and the dispute threatens

“substantially to interrupt interstate commerce to a

degree such as to deprive any section of the country

of essential transportation service, the Mediation

Board shall notify the President,” who may create

an emergency board to investigate and report on the

dispute. § 10. While the dispute is working its way

through these stages, neither party may unilaterally

alter the status quo. §§2[,] Seventh, 5[,] First,

6, 10.

Railroad Trainmen v. Terminal Co., 394 U.S. 369, 379

(1969) (emphasis added). The exhaustion of the section

6 procedures is intended to be “an almost interminable

process,” during which the parties bear the obligation to

‘make every reasonable effort to negotiate a settlement

_ and to refrain from altering the status quo by resorting

to self-help while the Act’s remedies [are] being ex-

34a

hausted.” Detroit and Toledo Shore Line Railroad, 396

U.S. 149.

The Act’s status quo requirement “is central to its

design.” Jd. at 150. It is significant that the United

States Supreme Court in Detroit and Toledo spoke of

“the Act’s status quo requirement,” id. at 150, while

noting the existence of “three status quo provisions in the

Act.” Id. The Court then noted:

While the quoted language of §§ 5, 6, and 10 is not

identical in each case, we believe that these provi-

sions, together with § 2, First, form an integrated,

harmonious scheme for preserving the status quo

from the beginning of the major dispute through the

final 30-day “cooling off” period. Although these

three provisions are applicable to different stages of

the Act’s procedures, the intent and effect of each is

identical so far as defining and preserving the status

quo is concerned. The obligation of both parties dur-

ing a period in which any of these status quo pro-

visions is properly invoked is to preserve and main-

tain unchanged those actual, objective working con-

ditions and practices, broadly conceived, which were

in effect prior to the time the pending dispute arose

and which are involved in or related to that dispute.

Id. at 152-53 (footnotes omitted; emphasis added). Thus,

the three status quo provisions of the Act are intended

to operate as a continuum.

Once a strike occurs after exhaustion of the procedures

prescribed by section 6, the obligations upon the carrier

are modified to permit the struck carrier to initiate

changes in work rules or conditions of employment which

are “reasonably necessary” “in order to make a mean-

ingful reality of [the carrier’s] right to continue to oper-

ate [during the strike].” Florida E.C. Ry. Co. v. Broth-

erhood of Railroad Trainmen, 336 F.2d 172, 182 (5th

Cir. 1964). The reasonable and necessary criteria are

to be strictly construed, for as the Supreme Court stated:

ee, ey Ce ey

35a

The collective bargaining agreement remains the

norm; the burden is on the carrier to show the need

for any alteration of it, as respects the new and

different class of employees that it is required to

employ in order to maintain that continuity of oper-

ation that the law requires of it.

Id., 384 U.S. at 248.

B. Section 10 Status Quo Requirement

1. The Scope of the Emergency Order

Here, the strike was ended by the President’s creation

of the Emergency Board on May 16, 1986. Under sec-

tion 10 of the RLA, 45 U.S.C. § 160, the parties were

thereby required to restore the status quo, since, for a

sixty-day period thereafter, “no change, except by agree-

ment, shall be made by the parties in the conditions out

of which the dispute arose.” 45 U.S.C. § 160 (Emphasis

added.) One of the Plaintiff’s principal contentions is

that the effect of the Executive Order is to impose the

section 10 status quo obligation upon B&M and D&H as

well as upon MEC/PT. The contention is that B&M and

D&H have become “parties to the controversy” in the

language of section 10 by the doctrine of “substantial

alignment” as that has been developed in the jurispru-

dence determining the legitimacy of secondary strikes

and picketing. Brotherhood of Railroad Trainmen v. At-

lantic Coastline R.R. Co., 362 F.2d 649 (5th Cir.) aff'd

by an equally divided court, 385 U.S. 20 (1966) ; South-

ern Railway Co. v. Brotherhood of Railway, Airline and

Steamship Clerks, 458 F. Supp. 1189 (D.S.C. 1978).

The Court addressed this contention preliminarily in

its June 18, 1986, Bench Ruling on the Defendants’ in

limine motion to exclude evidence of “substantial align-

ment.” The Court there held that the policy goals and

interests of the parties underlying the “substantial align-

ment” doctrine did not necessarily address adequately

36a

the salient policy goals and party interests at stake in de-

termining the scope of the section 10 status quo obliga-

tion once it arose. The Court, therefore, rejected “sub-

stantial alignment” as the operative test* to determine

whether parties other than those named in the Executive

Order become subject to the status quo obligations im-

posed by section 10. The Court now reaffirms that ruling.

Section 10, by its very design, vests authority in the

President to invoke its procedures. As the Court has pre-

viously pointed out, the President’s Executive Order

specifically identifies the MEC/PT and certain of their

employees as participants in the dispute to be investi-

gated by the Emergency Board. The plain meaning of

this designation is that only those parties, and not the

D&H and B&M, are subject to the Emergency Order.

This Court can not enlarge upon, by any process of

construction, a decision entrusted to and already executed

by the President.

This reading of the Emergency Order is also consist-

ent with the operation of the Act. Significantly, section

6 of the Act creates its own status quo requirement.

This remains in force long as the section 6 procedures

for negotiated settlement of disputes are being carried

out. It can be deduced from the structure of the Act

that the section 10 status que is intended to be imposed

upon a carrier and its employees only after the section

6 procedures have been exhausted and after the status

quo related to them has ended. Section 10 provides spe-

* At trial the Court indicated what might be the content of an

appropriate standard to utilize in order to determine in a specific

——case whether parties not named in the Order could be found to

be bound by the section 10 status quo obligation. See IT-69. In

view of the reasons which the Court here finds on the specific facts

of this case to dictate the conclusion that B&M and D&H are not

under the status quo obligation created by Emergency Order No.

2559, there is neither occasion nor need for the Court to here

pursue the question of the appropriate content of such a standard.

37a

cifically that an Emergency Board may be appointed to

settle a dispute between a carrier and its employees only

after other procedures of the RLA have been exhausted.

45 U.S.C. § 160. Here, the only parties who have ex-

hausted the section 6 procedures are those named in the

President’s order. Indeed, MEC/PT is the only carrier

here being struck; D&H and B&M are only the subject

of secondary picketing by BMWE employees of MEC/

PT. Thus, the wording of the President’s order, the

structure of the statutory provisions that make up the

RLA, the plain meaning of both, and the content of the

doctrine of separation of powers clearly indicate that the

only carriers in this case properly subject to the section

10 status quo requirement are MEC/PT.

Since section 10 does not apply to them, the actions

of B&M and D&H and their contract employees will be

assessed in light of their traditional obligations under the

RLA. Specifically, the B&M and D&H were obliged to

abide by (1) the section 2, First, obligation; (2) the

specific terms and provisions of existing collective bar-

gaining agreements; and (3) the content of mutually

established practices in respect to rates of pay, work

rules, and working conditions. These obligations were

modified pursuant to the Florida East Coast provisions

during the period of the strike when B&M and D&H

were picketed.® The effect of the Emergency Order on

5It does not escape the Court’s notice that the Florida East

Coast case involved as a point of fact the definition of a carrier’s

collective bargaining obligation where a strike was in effect against

the subject carrier. So far as B&M and D&H are concerned, that

is not the case; they were only the object of secondary picketing

by the BMWE employees of MEC/PT. Nevertheless, the Court

sees no reason why the teaching of Florida East Coast should not

apply with equal force to a carrier which is faced with a temporary

operational emergency because its employees will not cross picket

lines of employees of another carrier. At least on the facts of this

case, the effect of such conduct was as debilitating to the carrier's

ability to operate and provide its public service as was the strike

38a

the D&H and B&M was to end the secondary picketing

on those carriers and thereby end the reasonable and

necessary modifications permissible pursuant to Florida

East Coast. Thus, the tripartite obligations are revivified

with the same force and effect that they possessed before

the commencement of the strike.

2. Effect of Section 10 Status Quo on MEC/PT

A. The Effect of the Emergency Order

With respect to MEC/PT, there is no question but that

the creation of the Emergency Board imposed an obliga-

tion on both the carrier and the union to return to the

status quo. The parties disagree, however, over the exact

effect of that section 10 status quo requirement. The

Plaintiff contends that the status quo requirement pro-

hibits MEC/PT from making the job abolishments it

made after striking workers returned to work pursuant

to the Emergency Order. MEC/PT maintains that the

job abolishments were not prohibited by the terms of the

pre-existing agreement or past practice when based upon

economic conditions and that, therefore, the job abolish-

ments at issue did not violate the status quo provision.

Section 10 fixes the status quo “in the conditions out

of which the dispute arose.” 45 U.S.C. § 160. The dis-

pute which precipitated the strike of March 3, 1986 was

first formalized in the union’s section 6 notice, which

was served on April 2, 1984. The dispute, as so formal-

ized, was over the BMWE’s desire to negotiate under

section 6 concerning new job protection terms in the col-

lective bargaining agreement.® Accordingly, the Court

itself upon MEC/PT’s operational capacity. Application of the

Florida East Coast doctrine in such circumstances serves the same

salutary purpose as where the emergency is precipitated by a

strike of the carrier’s own employees.

6 Strictly speaking, the “dispute” arose earlier, that is, in the

negotiations that preceded the service of the union’s section 6

ee ES Te Eee we eer se

39a

finds that the dispute arose on April 2, 1984, and that the

status quo to which the parties are required by the Emer-

gency Order to return is that manifested by the “actual,

objective working conditions and practices, broadly con-

ceived, which were in effect,” Detroit and Toledo, 396

U.S. at 153, immediately prior to the service of the sec-

tion 6 notice on April 2, 1984.7 These encompass the

rates of pay, work rules and conditions of employment

provided for by the existing collective bargaining agree-

ment and/or previously established practices, id. at 153-

54, in effect before the “dispute” arose.

The practical effect of the Emergency Order, then,

was to end the strike and to require MEC/PT to permit

the return of its employees to work under the conditions

described above. The Emergency Order deprived the

carrier, MEC/PT, of the authority under the Florida

East Coast case to make reasonable and necessary

changes, strictly construed, in work rules and conditions

of employment.

notice. The evidence does not shed any light, however, on the

specific course of those negotiations. Thus, the earliest date on

which the Court can, on the evidence, determine that the dispute

arose was April 2, 1984, the date of service of the notice. There

is no evidence that either the terms of the collective bargaining

agreement or the “actual, objective working conditions and prac-

tices broadly conceived,” Detroit and Toledo, 396 U.S. at 153,

underwent any change in the period between April 2, 1984, and the

prior date on which the job protection issued was first raised in

the course of the negotiations preceding service of the section 6

notice.

7 As noted earlier, the status quo provisions of the RLA are

intended to operate in a continuum. Supra, at 18-19. This case

presents an anomalous situation in that the President did not

appoint an Emergency Board, pursuant to section 10 and thereby

invoke the section 10 status quo provision until after the section

6 status quo period had expired and the parties had resorted to

self-help. However, in light of the intended operation of the status

quo provisions of the RLA, it is clear that even in this situation

the section 10 status quo requirement operates to extend the prior

status quo.

40a

B. The Post-May 19, 1986 Job Abolishments

MEC/PT contends, and the RLEA does not disagree,

that prior to April 2, 1984, and during the section 10

status quo period, it was entitled to abolish jobs based

upon economic considerations. At trial, MEC/PT pre-

sented credible evidence that traffic, carloadings, and

gross revenues on the MEC/PT were all significantly

reduced in the months following the strike,* and the

Court so finds. See, e.g., Defs.’ Exs. 13a, b and c, 12a

and b, 29a-g; Tr., Vol. 2, at 497-517; Tr., Vol. 3, at 55.

As of the time of trial in June 1986, traffic on the car-

riers had increased vis-a-vis the previous three-month

period, but had not returned to pre-strike levels. Tr.,

Vol. 3, at 41-42. The Court concludes that after the re-

turn to work on May 19, MEC/PT, consistent with its

section 10 status quo obligations, would have been jus-

tified in implementing an appropriately conceived and

executed reduction in its work force based upon the ac-

tual economic conditions of the carriers’ business after

that date. MT kas

The finding that MEC/PT was entitled to reduce its

work force through job abolishments pursuant to the con-

tract and prior practice, however, is not the end of the

Court’s inquiry. MEC/PT, as part of its section 10

status quo obligation, was required in accomplishing job

abolishments to “extend every reasonable effort to main-

tain agreements,” that is, to act in a manner consistent

with its collective bargaining agreements and past es-

tablished practice. The carrier apparently acknowledges

that such job abolishments must be based upon economic

exigency, i.e., needs arising from business conditions of

the carrier. The carrier does not claim the right to

achieve the subject job abolishments on any basis other

8 Defendants’ Exhibits 13a, b, and c graphically demonstrate

these decreases and are, therefore, appended to this opinion as

Appendices “A,” “B,” and “C,” respectively.

4la

than that the collective bargaining agreements and past

practice permit reduction in the work force where reduced

levels of carloadings and gross operating revenues create

a need for them.°®

®The Court is in a curious position with respect to its ability

to determine the specific terms of the collective bargaining agree-

ments. The parties have not put in evidence significant portions

of the collective bargaining agreements. Even those copies of the

| agreements marked for identification appeared to be, in most cases,

only partial copies of the complete agreements. No version of a

National Agreement has been put in evidence. Yet, nearly all of

the witnesses have testified as to the contents of the various col-

lective bargaining agreements in one respect or another.

The Court is fully satisfied, despite the paucity of evidence

of actual contract language, that there is no disagreement over

the proposition that MEC/PT collective bargaining agreements

and past practices permit the carriers to make reductions in work

~ force through job abolishments so long as a decline in business

sustained by the carrier necessitates work force regulations. The

President, Chief Executive Officer and Chairman of MEC/PT,

David A. Fink, testified that he decided that all MEC/PT em-

ployees would be returned to the positions which they held before

the occurrence of the strike. He then testified: “And I said, we

will then reduce our employment in line with our business in ac-

cordance with our contracts.” Tr., Vol. 3, at 183-34 (emphasis

added). The Defendants concede in their post-trial briefs that the

carrier’s entitlement to make the reductions in the work force which

occurred on MEC/PT after Muy 19 was in fact based upon the

economic circumstances of the carrier’s operation after that date.

It is stated in the Defendants’ brief on behalf of MEC/PT:

The Company thereupon, pursuant to its collective bargain-

ing agreements, issued permanent job abolishment notices,

with appropriate advance notice, terminating such positions

as were not needed due to the Company’s 44 percent decline

in business as compared to the period before the strike.

Id. at 3 (emphasis added). Further, Defendants also state in the

brief :

The evidence is overwhelming that the MEC’s May 19 job

abclishments were motivated by business judgment reflectiny a

dramatic downturn in business, and had no basis in the punish-

ment of striking workers.

Id. at 15 (emphasis added).

42a

On this basis, MEC/PT could not abclish jobs in a

way calculated to punish striking workers returning pur-

suant to the Emergency Order. Nor could it, having

determined that economic necessity justified abolishing a

certain number of jobs, single out for abolishment only

those jobs held by those employees who (1) were of the

contract labor force or (2) being contract laborers, had

exercised their organizational rights against the carrier.

Rather, the carrier was required to focus only on as-

sessing the need for continuance of a specific position,

or positions, in light of the existing economic conditions.

Resolution of the question of which members of the con-

tract labor force were to fill the remaining positions and

which were to be furloughed should have been left to

the operation of the seniority provisions of the collective

bargaining agreement.”

10 Plaintiff has vigorously contended herein that the carrier could

not make any job abolishments after the commencement of the

status quo period without first coming to the Court and obtaining

the Court’s approval of such abolishments. Plaintiff bases this

contention upon certain langauge contained in the Florida East

Coast Railway case. The Court, in stating the facts of that case,

observed that the District Court entered an injunction against the

carrier requiring it to abide by the terms of existing collective

bargaining agreements “except upon specific authorization of this

Court after a finding of reasonable necessity therefor upon appli-

cation of the [carrier] to this Court.” Jd. at 242. Mr. Justice

White, in his dissenting opinion, refers to this fact in the following

terms: “But with the consent of the United States Court, or a

state court for that matter, the carrier may now make any change

essential to its continued operation.” Id. at 249 (omitting footnote).

From these references, the Plaintiff concludes that the case

stands for the proposition that once a section 10 status quo period

is commenced, the carrier cannot make any reductions in work

force pursuant to the collective bargaining agreement, or otherwise,

without first obtaining specific approval of the reductions by a

District Court. Clearly, the case does not so hold. Reference to the

underlying District Court opinion in case, Florida East Coast Rail-

way Company v. Brotherhood of Railroad Trainmen, 336 F.2d 172

(5th Cir. 1964), reflects that the District Court adjudicated, on the

43a

The methodology utilized by MEC/PT to determine

job abolishments after the May 19 return to work is

violative of these requirements. The principal defect of

the methodology chosen is that it uses as the focus for

determining which jobs are to be abolished not the con-

tribution to economic efficiency made by the position in

the current economic conditions, but, rather, the identity

of the position’s incumbent. The carrier clearly selected

jobs to be abolished so as to avoid retaining those em-

ployees who had not worked during the strike. This prac-

tice had the effect of telescoping the two stages of the

process as properly conducted (i.e., selection of job to be

abolished by economic and job function criteria followed

by selection of worker to be furloughed by seniority cri-

teria) into one predetermined, and in this case, self-serv-

ing, step by the carrier.

As a practical matter, this process wrote out of the

labor-management relationship, in relation to these post-

May 19 job abolishments, the employees’ seniority rights

as conferred by the collective bargaining agreements and

prior practice. The workers whose jobs had been abol-

ished could not return except to a bulletined position,

where the carrier had the right to make the award on

the basis of seniority. However, virtually all of the

workers had improperly lost their seniority rights, after

facts of the case, the carrier to be in violation of the section 6

status quo requirement. /d. at 180. The Court imposed the require-

ment of prior approval for subsequent reductions in force as an

element of the remedy which the Court provided as a consequence

of the adjudication of violation of the section 6 status quo.

Here, however, there is not, as of the time of trial, any adjudi-

cation that this carrier has violated any provision of the RLA. In-

deed, the very question to be resolved in this litigation is whether

such a violation has occurred. It is this Court’s view that a carrier

is not under any obligation to seek Court approval of reductions

in force during a status quo period, or otherwise, where it has not

been adjudicated to be in violation of the RLA and that requirement

imposed as a remedial consequence thereof by an Order of Court.

_—————————————

44a

having been put to the Hobson’s choice of not honoring

the picket lines or forfeiting seniority. See, supra, at 3,

n. 1. Workers displaced by job abolishments had no op-

portunity to “displace,” on the basis of their seniority,

workers who had not honored the strike. The inescapable

effect was that “super seniority” was conferred upon the

nonstriking worker whose job was not abolished. This

changed the work rules and conditions of employment in

respect to the seniority system implemented by the col-

lective bargaining agreement.

Clearly, the carrier is required under section 2, First,

to honor seniority rights under the agreements and to

afford an opportunity for the seniority proceeds to vindi-

cate them. Failure to do so departs from the collective

bargaining agreement as it existed prior to the “dis-

pute” arising. The collective bargaining agreement is an

“actual, objective working condition” in effect prior to

the time the present “dispute” arose. Hence, the de-

parture from the agreement is also a violation of the

section 10 status quo obligation imposed as of May 16,

1986.

The carrier’s method suffers from a second defect.

The job abolishment program, post-May 19, is based upon

the assertion that the reduction in the carrier’s business

levels that was occasioned by the strike requires, after

May 19, fewer workers than were required before April

3, when the strike began, in order to do the available

work. That may in fact be the case. The Court has found

that the strike did cause a significant decline in the car-

rier’s carloadings and gross revenues. See, supra, at 25-

26. The carrier has consistently taken the position, how-

ever, that economic necessity requires that the percent-

age of decline in dollar-gross revenues be translated di-

rectly into an identical percentage decline in number of

contract labor positions. Thus, the carrier contends that,

for example, a 44 percent decline in gross revenue au-

45a

thorizes the carrier to effect a 44 percent reduction in

the number of contract jobs.

There is, however, no evidence whatever to suggest,

even remotely, the validity of that correlation. The cor-

relation is, for all that is shown in this record, a purely

arbitrary assumption. If the carrier is to justify the

post-May 19 job abolishments on the basis that economic

conditions precipitated by the strike necessitate fewer

positions, it must do so by some discrete, analytical proc-

ess supported by evidence relating to the impact of reve-

nue reduction and job function upon operating efficiency.

This the carrier has not done.

There is no reason to suppose, and a great deal of

reason not to believe, that a percentage decline in gross

revenues or in carloadings translates directly, as a mat-

ter of economic impact, into a need for an identical per-

centage reduction in the number of contract labor jobs.

Economies of scale in the various operating sectors of the

carrier are thereby ignored and were apparently never

explored. There is no indication that any effort was

made, or consideration given, to spreading the impact of

work force reductions between management and contract

labor. One cannot help but reflect on the possibility that

abolishment of large numbers of labor positions, as oc-

curred here, must eventually give rise to some reduction

in the need for supervisory personnel. It is not explained

why the carriers chose to put the full burden of work

force reductions in an emergency situation upon the con-

tract labor force. The failure to even consider these and

other alternative factors resulted, in the Court’s view,

from the carrier’s predetermined, and improper, design to

reduce the work force by eliminating strikers as em-

ployees.

The post-May 19 job abolishments on the MEC/PT

clearly violated the carrier’s obligation not to make

changes in work rules or working conditions except in

conformity to section 6 and section 2, Seventh, of the

46a

RLA. As such, they constitute violations of the section

10 status quo obligation imposed upon the carrier by the

creation of the Emergency Board." On the foregoing

basis Plaintiffs are clearly entitled to the benefit of ap-

propriate equitable relief to redress these violations.”

IV. The B&M and D&H Return to Work

In considering the effect of the issuance of the Emer-

gency Order on the B&M and D&H, the carriers’ officers

deduced, Tr., Vol. 3, at 141, correctly as it turns out,

that the Order imposed no obligation upon those carriers

under section 10 of the RLA to return to work those

employees who had honored the picket lines of MEC/PT’s

BMWE employees. They then concluded, incorrectly as

it turns out, that the carriers were under no obligation

to return those employees to work on May 16. On that

basis, the unions’ offers on behalf of those employees to

return to work after May 16, 1986 were rejected. The

carriers took the position that none of these employees

could return to work until the carriers had assessed their

work force needs in light of the current business condi-

11 In addition, these job abolishments are also a violation of the

carrier’s section 2, First, obligation to exert every reasonable effort

to maintain its agreements. By selectively abolishing positions

occupied by strikers and failing to properly determine the scale of

abolishments required in order to efiectively meet the economic

emergency, the carrier improperly infringed upon the contract

rights of the union labor face. The job abolishment program, as

executed on the MEC/PT, became a cynical effort to undermine

and destroy the collective bargaining agreements then in effect.

12 Plaintiff makes a multitude of other claims of violations by

MEC/PT of rights of workers under either the RLA or contract/

practice provisions of the collective bargaining agreement which

are based upon specific factual situations. In view of the resolution

reached herein with respect to the post-May 19 job abolishments,

the Court need not reach issues so generated. Since the section

10 status quo period expires on July 21, 1986, the need for an

expeditious decision militates against lengthy consideration of

such issues.

}

‘

47a

tions on the carriers and had bulletined new positions

for appointment on the basis of that assessment. Thus,

the carriers said, the work force employees who had

honored the BMWE picket lines could return only by

bidding on the bulletined positions and on being awarded

a position pursuant to the pertinent collective bargaining

agreements.

The predicate for the carriers’ conclusion that they

were under no obligation to return the subject employees

to work was that the employees were without positions

as of May 16 because of the permanent job abolishments

accomplished on April 18. But for these abolishments

the carriers would have been required to return the em-

ployees to work as of May 16 in the positions that they

had held before commencement of the secondary picket-

ing on those carriers. This is so because the issuance of

the Order ended the strike of MEC/PT’s BMWE em-

ployees against that carrier. With the end of the strike

those employees ended their secondary picket against the

B&M and D&H. With the end of the secondary picketing,

the emergency ended on those carriers. Pursuant to the

collective bargaining contracts and the provisions of the

RLA, the employees who had been honoring the picket

lines were entitled to return to work and the carriers

were obliged to facilitate their doing so. The section 2,

First, obligation to “exert every reasonable effort to...

maintain agreements” reinforced this obligation, as did

the requirements of section 2, Seventh, which prohibited

changes in rules and working conditions except~ through

the collective bargaining processes mandated by Section 6.

The carriers recognized that such would be their

obligation. The carriers’ President and Chief Executive

Officer, Mr. Fink, testified that he approved the decision

to implement the April 18 job abolishments. Tr., Vol. 3,

at 86-181. The “primary consideration” for the approval

of those permanent abolishments was to avoid having to

take back the employees on those carriers who were hon-

48a

oring the picket lines if the strike was ended by a Emer-

gency Order. Jd. at 181-82. This is a clear admission

that the carriers recognized their obligation to take back

the subject employees on issuance of the Emergency

Order. Failure to do so would clearly be a breach of the

carriers’ section 2, First, obligation to exert every reason-

able effort to maintain contracts. The Court is fully

satisfied that Mr. Fink and the carriers’ other labor

management executives were well aware of that fact.

Mr. Fink’s testimony also established beyond cavil that

the primary reason for the April 18 job abolishments

was to avoid that obligation. No other reason was given

for making, at that time, those permanent abolishments.

The workers were then honoring the BMWE picket lines,

and the carriers had already temporarily abolished the

positions of all employees who were doing so for the

period of the economic emergency created by the second-

ary picketing. Indeed, there is no basis on which the

carriers can justify making, at that particular point in

time, permanent job abolishments unless the carriers’

officials could accurately foresee the future.

Thus, the making of permanent job abolishments for

the primary reason of avoiding the return of the subject

employees when the strike ended was nothing less than

a deliberately calculated, anticipatory breach of those

obligations which the carriers recognized they would incur

under the agreements and the RLA provisions upon the

ending of the strike. That entire course of conduct was

intended to put the carriers in a position to dishonor

those obligations in the future.

The Court is satisfied that the management personnel

of these carriers well knew the proper process to follow

if business conditions after May 16 justified furloughing

some of these employees. They knew they were required

to honor the obligation to return the employees to work

under the agreements on the ending of the strike and

then begin a proper process of work force reductions by

i Gera

Pa te ey ee

My Wee Cee Se ee

49a

job abolishments based on considerations of economic con-

ditions and job function which would permit the exercise

of seniority rights to determine which employees were to

be furloughed because of the abolishments. The unjusti-

fied job abolishments on April 18 (which are unjustifiable

by any proper standard)” were a cynical attempt to

undermine the employees’ contract rights at the end of

the strike for the avowed purpose of “avoid[ing] an in-

flux of people if the strike ended.” Jd. at 182. Yet, the

right of the employees to such a return to work was

properly secured to them by the RLA provisions as well

as by the terms of the collective bargaining agreement.

Thereby, the carriers sought to avoid the employees’

rights and the need to return the employees to work until

a proper process of job abolishment could be implemented.

Also, the operation of the seniority system to permit those

of the employees who had seniority over the workers who

remained on the job during the secondary picketing to

13 The carriers do not seek to justify these job abolishments under

the reasonable and necessary modifications rule of Florida East

Coast Railway, supra, of which the carriers had the benefit on

April 18. See, supra, at 22, n. 5. Indeed, in oral argument they

expressly disavow any resort to that standard, relying entirely

upon the contract terms to justify those abolishments. Even ap-

plying the Florida East Coast standard, however, the abolishments

cannot be justified. At the time they were made on April 18th,

there was no necessity for them; and it is clear that under Florida

East Coast changes are reasonable only if they deal with immedi-

ate exigencies caused by the strike. It is unreasonable to make

changes on the basis of an unsupported anticipation that if and

when an Emergency Board was created, the business conditions

of the carriers would justify furloughing all employees who honored

the picket lines, even for as brief a period as a week or ten days.

Moreover, as of May 16, 1986, the carriers had an appropriate

procedure available to them consistent with their contract obliga-

tions to assess their contract labor requirements and accomplish

proper adjustments in employment levels on the basis of the actual

conditions as they then existed. The permanent abolishments, then,

were neither reasonable nor necessary under the Florida East

Coast case.

50a

displace the latter employees was rendered totally in-

effective. In effect, “super seniority” was thereby illegally

conferred on those employees who had remained at work.

The parties have vigorously disputed the propriety of

the carriers’ conduct in insisting upon the employees’ com-

pliance with work rules requiring the filing of names and

addresses by furloughed workers and timely exercise of

displacement rights. The carriers have contended that

failure to comply with such rules was an adequate justi-

cation for their refusal to take back the employees who

honored the picket lines. The Plaintiffs have countered

that the rules were discriminatorily enforced on the oc-

casions in question, had not in every instance been en-

forced in the past, and that the manner of enforcement

violated past enforcement practice. Most importantly,

the Plaintiff argues, the enforcement of the rule requir-

ing timely exercise of displacement rights, during the

period that the strike and related secondary picketing

against the carriers was going on, deprived the employees

of their organizational rights, that is, the right to honor

BMWB2’s picket lines.

This whole congeries of disputes becomes academic,

however, upon the Court’s determination that the per-

manent job abolishments of April 18 were illegal. With-

out those permanent job abolishments there was no oc-

casion for the employees to exercise any displacement

rights. In the absence of the abolishments the employees

were not permanently displaced and had no displacement

rights. Those abolishments, being in violation of the RLA

provisions, are without legal effect and the employees

affected by them are entitled to be returned to work

whether or not they complied with the subject work

rules.”

14 The Plaintiff once again generates a multitude of other issues

challenging the conduct of B&M and D&H in the period foilowing

the commencement of secondary picketing against them. These

issues are not addressed in view of the Court’s decision that the

Fa Oe Oe

et lanes ow

5la

V. Back Pay

Plaintiffs seek back pay for those workers on all car-

riers whose jobs, the Court has determined, were lost

because of the carriers’ violation of the rights secured to

them by the RLA. It has long been established that a

district court has authority to require payment of back

pay as a sanction for a carrier’s having violated section

6 of the RLA. United Industrial Workers of the Sea-

farers International Union v. Board of Trustees of Gal-

veston Wharves, 400 F.2d 320 (5th Cir. 1968). The

Court in Galveston Wharves explained:

(T]he purpose of the relevant sections of the Act is

maintenance of the status quo pending conference.

The employees wrongfully laid off cannot be retro-

actively reinstated, but they can be retroactively

compensated. This does not punish the carrier. Nor

does it constitute a windfall to the employees. It is

the price of reconstructing the status quo; it com-

pensates the employees for the losses incurred by

their being laid off in violation of the Act.

Id. at 825. Such an award makes the workers whole and

prevents the carrier receiving a windfall as a result of

its violation of the Act. Jd. at 326.

The rationale for awarding back pay for violation of

the section 6 status quo provisions applies with equal

force to situations, like this one, in which the Court has

found a violation of the section 10 status quo obligation.

That obligation is the end of the continuum of status

quo provisions set forth in the Act and has, as discussed

above, the same purpose and effect as the others. Detroit

and Toledo, supra, at 152-53. The Court finds, therefore,

on the facts of this case that an award of back pay is

appropriate as against the MEC/PT for their violation

of section 10

April 18 permanent job abolishments were invalid and the effect

of that conclusion, for the reason previously expressed, supra, at

33 n. 12.

52a

The imposition of back pay here is also necessary to

vindicate the employees’ rights to return to work on the

D&H and B&M. Such an award will serve as an incen-

tive to the earriers to take seriously their obligations

under section 2, First, of the Act. See Chicago & North-

west Railway Co. v. United Transportation Union, 402

U.S. at 577. Vindication of the workers’ rights and de-

terrence of the conduct of the carriers are both particu-

larly necessary here since the section 10 status quo will

end in ten days, on July 21, 1986. Thereafter, the parties

will once again be entitled to the exercise of self-help.

The bulk of the period during which the employees were

entitled to be returned to work has now passed. Hence,

the prospective benefit of this decision may be of short

duration to the employees. Because of this circumstance,

a back pay award is appropriate in order to avoid accrual

of a windfall benefit to the carriers because of their il-

legal conduct and to secure to the employees meaningful

relief for the violation of their collective bargaining

rights since May 16, 1986.

ORDER

For the foregoing reasons the Plaintiff’s claim for per-

manent injunctive relief as of May 16, 1986, is hereby

GRANTED. It is hereby ORDERED that a Permanent

Injunction against the Defendant carriers in the form

and substance reflected by Appendix “D” hereto annexed

be entered forthwith.

/3/ Gene Carter

GENE CARTER

United States District Judge

Dated at Portland, this 11th day of July, 1986.

Ra eal a WON el lw NE 2

58a

APPENDIX “A”

DEFENDANT’S EXHIBIT 13-A

BOSTON & MAINE CORPORATION

DELAWARE & HUDSON RAILWAY COMPANY

MAINE CENTRAL RAILROAD COMPANY

MARKETING AND SALES DEPARTMENT

CARLOADINGS

JANUARY 1985 - APRIL 1986

MEC BM DH

MO. C/L’s MO. C/I L’s MO. C/L’s

1985 1985 1985

Jan. 8,003 Jan. 15,555 Jan. 11,355

Feb. 7,805 Feb. 15,417 Feb. 11,049

Mar. 8,550 Mar. 16,932 Mar. 12,400

Apr. 8,066 Apr. 16,179 Apr. 12,301

May 8,301 May = 117,284 May 12,758

June 7,751 June 16,908 June 12,094

July 7,259 July 15,336 July 11,812

Aug. 7,509 Aug. 16,625 Aug. 13,386

Sept. 6,635 Sept. 15,705 Sept. 12,930

Oct. 7,406 Oct. 16,502 Oct. 13,196

Nov. 6,629 Nov. 14,663 Nov. 12,267

Dec. 6,621 Dec. 15,029 Dec. 12,580

1986 1986 1986

Jan. 7,407 Jan. 14,892 Jan. 13,466

Feb. 6,368 Feb. 13,905 Feb. 12,766

Mar. 4,516 Feb. 10,690 Mar. 11,631

Apy. 4,144 Apr. 6,694 Apr. 6,794

6/5/86

EVT

54a

Na ah ie he a ali Bi le

APPENDIX “B”

DEFENDANT’S EXHIBIT 13-B

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55a

APPENDIX “C”

DEFENDANT’S EXHIBIT 13-C

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56a

EXHIBIT “D”

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

Civil No. 86-0122-P

RAILWAY LABOR EXECUTIVES ASSOCIATION,

Plaintiff

Vv.

BosTON & MAINE CORPORATION,

DELAWARE & HUDSON RAILWAY COMPANY,

MAINE CENTRAL RAILROAD COMPANY, and

PORTLAND TERMINAL COMPANY,

Defendants

Civil No. 86-0194-P

THE BOSTON & MAINE CORPORATION,

DELAWARE & HUDSON RAILWAY Co.,

MAINE CENTRAL RAILROAD COMPANY, and

PORTLAND TERMINAL COMPANY,

. Plaintiffs

UNITED TRANSPORTATION UNION,

SHEETMETAL WORKERS INTERNATIONAL ASSOCIATION,

BROTHERHOOD OF RAILROAD SIGNALMEN,

BROTHERHOOD OF LOCOMOTIVE ENGINEERS,

BROTHERHOOD OF RAILWAY CARMEN,

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,

IRON SHIP BUILDERS, BLACKSMITHS, FORGEMEN

& HELPERS,

BROTHERHOOD OF RAILWAY, AIRLINE &

STEAMSHIP CLERKS,

INTERNATIONAL BROTHERHOOD OF FIREMEN & OILERS,

INTERNATIONAT. ASSOCIATION OF MACHINISTS, and

INTERNATIONAL ASSOCIATION OF ELECTRICAL WORKERS,

Defendants

(Transferred from U.S. District Ceurt, District of

Massachusetts, and Consolidated )

57a

PERMANENT INJUNCTION

CARTER, District Judge

1. Plaintiff’s claim in Civil No. 86-0122-P for a per-

manent injunction having come on for hearing and ar-

gument on June 18-24, 1986; and the evidence and post-

trial briefs of the parties having now been considered by

the Court; and the Court having this date separately

made its findings of fact and conclusions of law in its

Findings of Fact, Conclusions of Law, Opinion and Or-

der filed on this date, it is hereby ORDERED that:

(a) The Defendant Maine Central Railroad Com-

pany, its officers, agents, servants, employees,

and all others acting in concert with them, cause

3 to be reinstated in employment forthwith, with

H back pay, all employees of the said carrier who

held contract labor positions with said carrier

on March 4, 1986, prior to the strike com-

menced by BMWE employees on that date and

who were not returned to service after the end

of said strike on May 16, 1986, and all such

employees who were returned to service on or

after May 19, 1986, and who were subsequent

to such return to service furloughed by reason

of any job abolishment implemented by said car-

rier after May 19, 1986; be

(b) The aforesaid carrier, its officers, agents, serv-

ants, employees, and all others acting in concert

with them, CEASE AND DESIST from imple-

menting or imposing, after the date of this Or-

der, any furlough of any said employee, or any

abolishment of a position held by any said em-

ployee, except upon authorization by further

Order of this Court; and

(ec) Said carrier and its officers, agents, servants,

employees, and all others acting in concert there-

ee ae te 4

fe BS 9 AIA tas bet ea ete ahmed

ont A baat

58a

with shall CEASE AND DESIST from any and

all violation of the collective bargaining agree-

ments between said employees and said carrier,

and they shall each exert, pursuant to 45 U.S.C.

§ 2, First, every reasonable effort to maintain

the existing agreements between said carrier

and said employees.

2. It is hereby FURTHER ORDERED that:

(a) The Defendant Portland Terminal Company, its

(b)

(ce)

officers, agents, servants, employees, and all

others acting in concert with them, cause to be

reinstated in employment forthwith, with back

pay, all employees of the said carrier who held

contract labor positions with said carrier on

March 3, 1986, prior to the strike commenced

by BMWE employees on that date and who

were not returned to service after the end of

said strike on May i6, 1986, and all such em-

ployees who were returned to service on or after

May 19, 1986, and who were subsequent to such

return to service furloughed by reason of any

job abolishment implemented by said carrier

after May 19, 1986;

The aforesaid carrier, its officers, agents, serv-

ants, employees, and all others acting in concert

with them, CEASE AND DESIST from imple-

menting or imposing, after the date of this Or-

der, any furlough of any said employee, or any

abolishment of a position held by any said em-

ployee, except upon authorization by further

Order of this Court; and

Said carrier and its officers, agents, servants,

employees, and all others acting in concert

therewith shall CEASE AND DESIST from

any and all violation of the collective bargain-

ing agreements between said employees and said

(a)

(b)

59a

carrier, and they shall each exert, pursuant to

45 U.S.C. § 2, First, every reasonable effort to

maintain the existing agreements between said

carrier and said employees.

3. It is hereby FURTHER ORDERED that:

The Defendant Boston & Maine Corporation,

its officers, agents, servants, employees, and all

others acting in concert with them, cause to be

reinstated in employment forthwith, with back

pay, all employees of the said carrier who held

contract labor positions with said carrier prior

to commencement of secondary picketing against

said carrier on March 5, 1986 by BMWE em-

ployees of Maine Central Railroad Company

and who were not returned to service after the

end of said strike and secondary picketing on

May 19, 1986; and

Said carrier and its officers, agents, sefvants,

employees, and all others acting in concert there-

with shall CEASE AND DESIST from any and

all violation of the collective bargaining agree-

ments between said employees and said carrier,

and they shall each exert, pursuant to 45 U.S.C.

§ 2, First, every reasonable effort to maintain

the existing agreements between said carriei

and said employees.

4. It is hereby FURTHER ORDERED that:

(a) The Defendant Delaware & Hudson Railway

Company, its officers, agents, servants, employ-

ees, and all others acting in concert with them,

cause to be reinstated in employment forthwith,

with back pay, all employees of the said carrier

who held contract labor positions with said car-

rier prior to commencement of secondary picket-

ing against said carrier on March 17, 1986 by

60a

BMWE employees of Maine Central Railroad

Company and who were not returned to service

after the end of said strike and secondary pic-

keting on May 16, 1986; and

(b) Said carrier and its officers, agents, servants,

employees, and all others acting in concert there-

with shall CEASE AND DESIST from any and

all violation of the collective bargaining agree-

ments between said employees and said carrier,

and they shall each exert, pursuant to 45 U.S.C.

§ 2, First, every reasonable effort to maintain

the existing agreements between said carrier

and said employees.

This Court reserves jurisdiction of the parties herein

for enforcement of the provisions of this Permanent In-

junction.

/s/ Gene Carter

GENE CARTER

United States District Judge

Dated at Portland, this 11th day of July, 1986.

6la

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

Civil No. 86-0122-P

RAILWAY LABOR EXECUTIVES ASSOCIATION,

- Plaintiff

BOSTON & MAINE CORPORATION,

DELAWARE & HUDSON RAILWAY COMPANY,

MAINE CENTRAL RAILROAD COMPANY, and

PORTLAND TERMINAL COMPANY,

Defendants

Civil No. 86-0194-P

THE BOSTON & MAINE CORPORATION,

DELAWARE & HUDSON RAILWAY Co.,

MAINE CENTRAL RAILROAD COMPANY, and

PORTLAND TERMINAL COMPANY,

.. plaintiffs

UNITED TRANSPORTATION UNION,

SHEETMETAL WORKERS INTERNATIONAL ASSOCIATION,

BROTHERHOOD OF RAILROAD SIGNALMEN,

BROTHERHOOD OF LOCOMOTIVE ENGINEERS,

BROTHERHOOD OF RAILWAY CARMEN,

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,

IRON SHIP BUILDERS, BLACKSMITHS, FORGEMEN

& HELPERS,

BROTHERHOOD OF RAILWAY, AIRLINE &

STEAMSHIP CLERKS,

INTERNATIONAL BROTHERHOOD OF FIREMEN & OILERS,

INTERNATIONAL ASSOCIATION OF MACHINISTS, and

INTERNATIONAL ASSOCIATION OF ELECTRICAL WORKERS,

Defendants

(Transferred from U.S. District Court, District of

Massachusetts, and Consolidated)

62a

ORDER ON APPLICATION FOR APPROVAL OF

PROPOSED JOB ABOLISHMENTS

CARTER, District Judge

After hearing counsel, record waived, and on review of

the written submissions of the parties on the Application

For Approval of Proposed Job Abolishments, the Court

hereby APPROVES the Defendant carriers’ Application

to abolish seven hundred twenty-five (725) positions for

the reasons and on the following terms and conditions,

to wit:

(1) That losses of bumping rights during the strike

and forfeitures of seniority imposed during and after the

strike shall be fully abrogated;

(2) That abolishments shall accord with the terms of

the non-emergency notice provisions of the Agreements.

(3) That the identity of any contract labor employee

to be furloughed as the result of an approved abolishment

shall be determined by the operation of the contract terms

and work rules in respect to seniority and the exercise of

seniority rights;

(4) That all so-called “new hires” employed during

the strike or secondary picketing, including all replace-

ment employees who were promoted during the strike,

shall be discharged forthwith except for the three (3)

positions identified in 5 of the Affidavit of Sydney B.

Culliford (the position occupied by Edward McDunough

being excluded) and the two (2) positions identified in

7 6 of the Affidavit of Glenn E. Hartsoe;

(5) That such abolishments will not be the cause of

any violation of the scope rules applicable to contract

labor;

(6) That the approved abolishments shall be simul-

taneously accompanied by abolishment of ninety-three

(93) management positions; and

63a

(7) That it will be a violation of this Order if the

carriers fail to make an FRA-mandated train inspection

due to lack of adequate personnel.

The provisions of this Order are not an adjudication

in any respect that job abolishments approved herein are

in fact in compliance with applicable agreements and/or

employee protective conditions or provisions.

The carriers are herewith authorized to carry out the

aforesaid job abolishments in compliance with the fore-

going terms and conditions.

So ORDERED.

/s/ Gene Carter

GENE CARTER

United States District Judge

Dated at Portland, this 21st day of July, 1986.

64a

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 86-1653

RAILWAY LABOR EXECUTIVES’ ASSOCIATION,

Appellee,

BosTON & MAINE CORPORATION, et al.,

Appellants.

JUDGMENT

Entered: December 22, 1986

This cause came on to be heard on appeal from the

United States District Court for the District of Maine,

and was argued by counsel.

Upon consideration whereof, It is now here ordered,

adjudged and decreed as follows: The judgment of the

District Court is affirmed in part, reversed in part and

remanded to the District Court for further action con-

sistent with the opinion filed this day.

No Costs.

By the Court:

/s/ Francis P. Scigilano

Clerk.

fee: Messrs. Moore and Clarke]

65a

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 86-1653

RAILWAY LABOR EXECUTIVES’ ASSOCIATION,

Appellee,

BOSTON & MAINE CORPORATION,

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