# Petition for Writ of Certiorari — Boston & Maine Corp. v. Railway Labor Executives' Ass'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2273%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 484 U.S. 830 ## Text 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 TT chins sticcsnscuenddenesorbathenntencarssscosantncansenacsons ile tdsirncclinchscteencencantermnabhicseninecemopenenrstonet STA STA 1 2 3 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.... 1 . 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 14 iv 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 Vv 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). 2 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). 3 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 4 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- 5 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.) 6 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, 7 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 * * *,” 8 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 9 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 10 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. 11 “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- 12 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 | 13 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 14 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. ——————— 15 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). 16 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). 17 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.’’). | 18 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. 19 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 la 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. 2a 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 FI EY z 5; t a a ; 4 | 4 ‘ A “4 t A x i 8a 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 4a 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 5a 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. 6a 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 Ta 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. 8a 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. a 9a 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. : ; 3 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 i eae HRALCTS AORRING A RY NR ald i RC wk Mb, Pe Perse end ts re Py eet tpl era deat. ayn Sai es A winias Ragas RAE SE eae Ae er oes Oe en TS A Wine 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 a 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 colle [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2273%3A1. Public record. Not legal advice.