Appendix — Brotherhood of Locomotive Firemen & Enginemen v. Elgin, Joliet & Eastern Railway Co.

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APPENDIX.

OPINIONS BELOW.

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In tHE Unitep Srates: Court or APPEALS

For the Seventh Circuit, ;

December 4, 1968.

ibieieted at 404 F. 2d 80.)

Before CastTLe, Chie f oa, and Hastixcs and Kanten,

Circuit Judges.

CastLe, Chief Judge.

This case arose under the Railway Labor Act, 45 U.S. C.

§ 151 et seq., and concerns tke obligation of the defendant

railroad to employ firemen, members of the plaintiff

brotherhood (BLF&E), on a switching locomotive which is

operated for the rdilroad’s parent company, United States

Steel Company, within the latter’s Gary, Indiana plant.

The railroad claims that, pursuant to the collective bargain-

ing agreement, as modified by Arbitration Awérd No. 282,

issued pursuant to Public Law 88-108, 77 Stat. 132, it need

-not employ a fireman on the switching locomotive. The

_BLF&E, on the other hand, argues that the award did not

modify the National Diesel ‘Agreement or the collective

bargaining agreement in ‘‘full crew’’ states such as In-

diana.

The BLF&E relies heavily on the recent case of Bangor

& A. R. Co. v. Brotherhood of Locomotive Firemen and

Enginemen, 253 F. Supp. 682 (D. D. C. 1966), affirmed in

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_ part and reversed in part, sub nom, Brotherhood of Rail-

_road Trainmen v: Akron & B. B. R. Co., 385 F. 2d 581 (D.C.

‘Cir., 1967), cert. denied 390-5. §. 923, 88 S. Ct. 851, 19 L. Ed.

2d 983 (1968), to which both plaintiff and defendant in > *

‘ the instant case were parties. Phe court there dealt with the

similar-problem of: whether Arbitration. Award 282, which

by its terms was to last two years, and had by then expired,

permitted the railroads to continue using the procedures

established by the award to abolish firemen’s jobs. The

_ district court in the instant case properly summarized the

holding in Bangor:

‘‘There the Court of Appeals held, in essence, that

. the Arbitration Award was yot part of the work rules

en at ‘or collective bargaining .agreements_ between the

parties, but rather, it had established a)method, which

terminated with the award, for changing these agree-

ments. It held that those jobs abolished during the

period of the award did not have to be reestablished

but that the procedures of the award were. no longer

available to the railroads. It further held that ‘any

new runs created after Award 282 are subject to the

National Diesel Agreement; and its requirement of a

fireman on each engine crew. Moreover, the National

Diesel Agreement is in effect even though the only”

reason why a change in its work rule was not made

under the Award during its lifetime was the fact that

the change was blocked by a state’s full crew law’.

The Supreme Court denied certiorari on January 29,

1968.”’ .

The district court dismissed the suit on the ground that

it had no jurisdiction since the dispute before it was

‘‘minor’’ rather than ‘‘major’’ and therefore éxclusively

within the jurisdiction of the agency created by the Act.

Since we agree with the district court that the dispute in .

the instant case is ‘‘minor,’’ and therefore tha federal

courts are without jurisdiction, we find it wineenry nd

inappropriate to consider the merits of the controveksy,

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A3

namely, whether or not the agreement, as it now stands,

permits the railroad to operate the switch locomotive with-

out a fireman. Rather, we shall deal only with the deter-

mination that the instant dispute, within the meaning of

the Act and the cases interpreting the Act, is ‘‘minor.”’

In this regard, a-short look at the history of our national

railway labor policy is necessary. In 1926, Congress first

set up the machinery and the procedures whieh are em-

bodéed in the Railway Labor. Act, in order to lessen. the

threat to interstate commerce posed by strikes in the rail-

road industry. e Act and the case law dealing with it

recognize the basic difference between two classes of labor

disputes: the so-called veshajor” and ‘‘minor’’ disputes. _

‘‘The first relates to disputes over the formation of

collective agreements or efforts to secure them. They

arise where there is no agreement or where it is sought

to change the terms of one, and therefore the issue

is not whether an existing agreement controls the con-

troversy: They look to the acquisition of rights for the

future, not to assertion of rights claimed to have vested

in the, past.

“The second class, how ever, contemplates the exist-

ence of a collective agreement ‘alr eady concluded or, at ~

any rate, a situation in which no effort is made to bring | ic 8

about a formal change in terms or to create a new one.

The dispute relates either to the meaning or proper —

application of a particular prov ision with reference to

a specific situation or to an omitted case. * * *

‘‘In general, the difference is between what are re-

garded traditionally as the major and minor disputes

of the railway labor world.’’ Elgin, Joliet & Eastern

R. Co. v. Burley, 325 U. S. 711, 723, 65 S. Ct. 1282, 1290,

89 L. Ed. 1886 (1945).

The consequences of determining whether a dispute falls

within one class or the other are quite significant and, in

; fact, determinative of the case before us. If a dispute is

‘‘major,’’ it must be resolved under the procedures pre-

scribed by §6 of the Act, 45 U. S. C. § 156, under which

notice must be given, followed by negotiation, mediation by

the National Madiation Board, voluntary arbitration, pos-

sible conciliation attempts by the President (by a: Presi-

‘dential Emergency Board), and finally, if no agreement can

~ be reached, by self-help by the parties. ‘‘Minor”’ disputes,

- on the other hand, must first go to negotiation, and if that

fails, then to binding arbitration by the National Railroad

Adjustment Board (NRAB) or, alternatively, by a special

Board of Adjustment. &

The reason for the difference in treatment between the

two types of disputes was the judgment of Congress that

‘‘minor’’ disputes were not of sufficient importance to

justify a railroad strike with its consequent interruption of

interstate commerce. Thus, a strike over a ‘‘minor”’ dis-

‘pute can be enjoined to protect the jurisdiction of the

. NRAB, Brotherhood of Railroad Trainmen v. Chicago

R. & R. I. R. Co., 353 U. S. 30,77 S. Ct. 635, 1 L. Ed. 2d

622 (1957), while a strike over a ‘“‘major’’-dispute can not

be enjoined. Order of Railroad Telegraphers v. Chicago &

N. W. R. Co., 362 U. S. 330, 80 S. Ct. 761, 4 L. Ed. 2d 774

(1960). Moreover, the statutory procedures are exclusive

and ‘‘[t]he right of one party to place the [minor] dispute

before the Adjustment Board, with or without the consent

of the other, has-been firmly established. * * * And

the other party may not defeat this right by resorting to .

some other forum.’’ Brotherhood of Locomotive Engi-

_ neers v. Louisville € N. R. Co., 373 U. S. 33, 38, 83 S. Ct.

1059, 1062, 10 L. Ed. 2d 172 (1963).

We come, then, to the instant case and the facts leading

up to it. Congress passed Public Law 88-108 in order to

prevent a threatened nation-wide rajlroad strike occasioned

by the railroads’ notice that they planned to eliminate fire-

men’s jobs on freight and switching efigines.. Under the

Law, Arbifration Board 282 was established and Arbitra-

A5

,

tion Award 282 was issued, to be.effective from January 25, «

1964, through January 24, 1966. The effect of the award

after its expiration was the subject of the Bangor litigation,

previously discussed. The BLF&E, in the instant case,

contends that Bangor is res judicata to the instant case.

However, both parties agree that if the dispute is

‘‘minor,’’ the federal courts are without jurisdiction to

- grant any relief, whereas if the dispute is ‘‘major,’’ any

changes in the rules and working conditions embodied in

the agreements between the parties must be enjoined until

all statutory procedures ar€ completed. Virginian R. Co. v.

System Federation No. 40, 300 U. S. 515, 57 S. Ct. 592,

81 L. Ed. 789 (1937). |

\ We find that the reasoning of the cAses discussed and the

policy of the Railway Labor Act compel the conclusion that’

the instant dispute is ‘‘minor’’ and not ‘‘major.’’ First,-

the present controversy can be solved by an administrative

interpretation of the existing agreement in light of Award

282. Although the holding of the District of Columbia Cir-

it Court of Appeals in the Bangor case may control part

f the instant dispute, the agreement must still be applied

tothe facts presented.’ Second, neither the BLF&E nor the

d is seeking a new agreement; rather, they are each

“ing rights under the present agreement as each party

interprets it. Third, the nature of this controversy is such

that the policy beliind our entire system of railway labor’ °

law precludes the possibility of the use of a strike—with its

consequent interference with interstate commerce—to settle

the dispute. Rather than seeking a change in the present

rights of the parties, the railroad here is demanding, in

good faith, only what it believes its rights are under the

terms which have been previously bargained for or arbi-

trated. : ——. ;

1. E.g., whether the switching operation in the instant case con-

stitutes a ‘‘run.’’ .

A6—

-In short, this is not a situation where ‘‘there is no

such agreement or where it is sought to change the terms of .

one’’; rather, this case involves the issue of ‘‘whether an

existing agreement controls the controversy." *? Elgin, Joliet

& Eastern Ry. Co. v. Burley, 325 U. S. 711, 723, 65 S. Ct.

1282, 89 L. Ed. 1886 (1945). As such, the dispute is

‘‘minor’’ and the federal courts are without jurisdiction to

. hear the case. The order dismissing’ the case for lack of

jurisdiction is therefore affirmed. ,

. . AFFIRMED.

Kerner, Circuit Judge (dissenting).

ee

1 regret that for the first time I must respectfully dissent

- from a decision by my brethren.

The national labor policy for railroads is one-which seeks

to encourage industrial peace by substituting axbitration

for strikes in minor disputes. The genesis of the policy is

in the wise decision of the Congress that the continued |.

operation of the nation’s railroads is vital to a healthy

economy and, therefore, that strikes over interpretations of

’’ existing agreements should be avoided. Bhd of R. R. Train-

men v. Chicago River & I. R. Co., 353 U. S. 30, 35-41, 77

S. Ct. 635, 1 L. Kd. 2d 622 (1957).

Conversely, Congress also recognized in Buction 8 of the

Norris-LaGuardia Act (29 U. S. C. $108) that unions

should have a right to strike when necessary to secure .

the rights of their members or to improve their lot. Thus,

while the Supreme Court has upheld the issuance of injunc-

tiong against strikes in minor disputes, it has refused to

uphold them in major disputes. Bhd. of R. R.’Trainmen v.

Toledo, P. & W. R. Co., 321 U. S. 50, 66, 64 S. Ct. 413,

88 ‘L. Ed. 534 (1944); Elgin, J. & E. Ry. Co. v. Burley, 325

U. S. 711, 725-727, 65 S. Ct. 1282, 89 L. Ed. 1886 (1945) ;

Chicago River; supra, at 42, 77 S. Ct. 635; Order of R. R.»

- Telegraphers v. ee W. Ry. Co., 362 U. ’ 330, 341,

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80S. Ct. 761, 4 L. Ed. 2d 744 (1960); Bhd..of Locomotive

Engrs. v. ‘Baltimore & Ohio R. Co., 372 U.S. 284, 288-289,

83 S. Ct. 691, 9 L. Ed. 2d 759 (1963); and Bhd. of Ry. &

SS. Clerks v. Florida East Coast Ry. Co., 384 U. S. 238,

243-244, 86 S. Ct. 1420, 16 L. Ed. 2d 501 (1966). The latest

case cited also recognizes that carriers may resort to self- -

help in major disputes.

Because of the differences in yights and procedures, the

distinction between major and thinor disputes is of*crucial

importance. In Elgin, J. & E. Ry. €o. v. Burley, the court

noted that the Railway Labor Act distinguishes the two

types of disputes in Section 2 (45 U. S. C. § 152). The

court held, 325 U.S. at 722-723, 65 S. Ct. at 1289:

The statute first marks the distinction in section 2,

which states as among the Act’s five general purposes:

‘‘(4) to provide for the prompt and orderly settlement

of all disputes concerning rates of.pay, rules, or work-

ing conditions; (5) toe provide for the prompt and

orderly settlement of all disputes growing out of griev-

ances or.out of the interpretation or*application of

agreements eovering rates of pay, rules, or working

conditions.’’ The two sorts of dispute are sharply

distinguished, though there are points of common

. treatment. Nevertheless, it is clear from the Act itself,

from the history of .railway labor disputes and from

the legislative history of the various statutes which

have ‘dealt with them, that Congress has drawn

major lines of difference between the two classes of

controversy. sine

The first relates to disputes over the formation of collec

tive agreements or efforts to secure them. They arise

where there i is no such agreement or where it is sought to

change the terms of one, and therefore the issue,is not

whether. an existing agreement tontrols the controversy.

They look to the acquisition of rights for the future, not

to assertion of rights claimed to have vested in the past.

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The second class, howover, contemplates the existence

_ of a collective agreement. already concluded or, at any rate, -

a situation in which no effort is made to bring about a

formal change in terms or to create a new one. The dispute

relates either to the meaning or proper application of a

particular provision with reference to a specific situation

or to an omitted case. In the latter event the claim is

founded: upon some incident 6f the, employment relation,

or asserted one, independent of those covered by the collec-

tive agreement; e.g., claims on account of personal injuries.

In either case the claim is to rights acerued, not merely to .

have new ones created for the future. \ 3

In general the difference is between what are regarded

traditionally as the major.and the minor disputes of the ~

ans 4 labor world. * * * [Notes omitted. ]

’ Thus, a minor: dispute is one which necessarily requires °

an actual application or interpretation of an existing agree-

ment and‘set of facts for its resolution. An ‘application’?

of the agreément means that the facts create an issue as

to whether or not the agreement controls the resolution of a

highly particularized dispute. An ‘‘interpretation’”’ of the

agreement means that an issue exists as to the — of

the agreement. ee

Neithér an application nor an interpretation is required

under the facts of this case.. There is no dispute as to the

- facts so there is no reason for an application of any agree-.

ment. Since the only alleged dispuf® between the parttes .is

over a decision of a Court’ of Appeals (as will be shown

below), there is no necessity for interpreting any agree-

ment.

In the Chicago River case, the Court also noted the dis-

tinction between’ Sections 2, Or ii and 2, Seventh, charac-

terizing the latter as applicable‘ to a major dispute. Supra

at 33. Section 2, Seventh (45 U. S. C. § 152, Seventh)” pro-

“hibits a carrier from unilaterally changing ‘the rates of

‘pay,’ rules or working conditions. of its employees, as a-

class’? except in accordance with the bargaining procedures

‘in the Act or those in agreements between the parties. In

the Florida East Coast case, the Court cited with approval

. the holdin& in Florida East Coast Ry. Co. v. Bhd. of R. R.

Trainmen, 336 F.*2d 172, 179-180 (5th Cir. 1964), cert.

denied, 379 U. S. 990, 85 S. Ct. 703, 13 L..Ed. 2d 611, that

unilateral changes in working conditions may constitute a

major dispute where they amount to an abrogation of the

existing agreement. 384 U.S. at 242, 86 S. Ct. 1420.

In the instant case, the carrier unilaterally instituted an

important change in the agreement in force by refusing to

use a fireman on the newly created ‘‘84 inch Hot Strip Mill

run.’’ It'is not necessary for a party to seek a new agree-

ment for there to be. ‘a major dispute. It is sufficient, for

there to be a unilateral change in the prior agreement which,

as here, has the sheet of creating a new agreement.

The carrier here has argued that it is only acting in

accord with the existing agreements. In this regard, it is

. important to note that the carrier agrees that the decisions

in Bhd. of R. R. Trainmen v. Akron & B. B. R. Co., 385 F.2d

581 (D. C. Cir. 1967), cert. denied, 390 U. S..923, 88 S. Ct.

851, 19 L. Ed. 2d 983 (1968), are res judicata between these

parties. The Supplemental Opinion of the Court of Ap-

peals in that case, 385 F. 2d at 607, shows that the carrier’s

unilateral action was in, violation of the Railway Labor

Act and is not based on any existing agreement. In that

opinion, it was held, 385 F. 2d at 611-612:

The National Diesel Agreement was not set aside by .

the Board. As already noted, the opening section of

the Award provided that agreements in force continued

in effect except as they were modified by the Award.

The Award provided a procedure for modifications |

during the two-year life of the Award. We recognize

‘

A10

that it may be turning back the clock to an era that

two presidential boards and the Neutral Members of

Board 282 have agreed is technologically outdated, but

taking into account the structure of Award 282 as

issued, we see no allernative to holding that any new

runs created after Award 282 are subject to the Na-

tional Diesel Agreement, and its requirement of a fire-

man on each engine crew. !

Moreover, the National Diesel Agreement is in effect

even though the only reason why a change in its work —

rule was not made under the Award during its life time

was the fact that the change was blocked by a state’s

full crew law. The Supreme Court has expressely held

that while such state law was in effect the Board had no

capacity to make a change contrary to its provisions. |

See Brotherhood of Locomotive Engineers v. Chicago,

Rock I. & Pac. R. R., 382 U. 8. 423, 86 S. Ct. 594, 15

L. Ed. 2d 501 (1966). The opening sections of the

Award dealing with the wise of firemen and with crew

consists provided for the continuation of work rules,

however established, unless changed pursuant to the

Award. The repeal of a full crew law subsequent to

the expiration of Award 282 came after expiration of

the Board’s authority under the temporary statute and

after expiration of the power of’a carrier to invoke the

procedures of the Award.

The carriers argue in effect that the Award at least

authorized the carriers to blank firemen positions dur-

ing the lifetime of the Award, with this, personnel

action remaining in a state of suspended animation |

until its vitalization upon repeal of the full crew law.

The Court noted in Rock Island; supra, 382 U. S. at

433, 86 S. Ct. at 599:

Wongress wanted to do as little as possible in

solving the dispute which was before it, and we

note that this dispute was not over the size of

_ erews in States which had full-crew laws.

The Board authorized the carriers to list jobs for

blanking, and thus provide a classification ‘‘when and

if such full crew laws are amended or repealed.’’

Answer of May 17, 1964, to Carriers’ Question No. 5

All r.

under Section II—Part B(1) and B(2). But this con-

ditional-blanking was only available as an advance pro-

cedure made fruitful if the necessary condition ma-

terialized during the 2-year lifetime of the Award.

See Opinion of Neutral Members, quoted supra, 41

Lab. Arb. at 681. The Board’s energy was not limited

to ‘‘the dispute which was before it [Congress]”’ at

tlie passage 6f the law, but also extended to firemen

manning disputes arising during the critical 2-year

period. But the Board’s order and interpretations

cannot be stretched beyond the Congressional frame of

reference to resolve academic differences or dis utes

that were neither in being at the time nor projected as

arising during the 2-year period. [Emphasis added. ]

As it is conceded that the carrier’s attack on Indiana’s Full

Crew haw (Burns’ Ind. Stat. Ann. §§ 55-1330 and 55-1331)

failed_ nd the law was not repealed during the lifg of

Award 282, then the 1950 National Diesel Agreement was

and is in effect between these parties. This is due to the

fact that the condition precedent for a change in that Agree-

_ ment by Award 282, i.e., the repeal of the Full Crew Law,

never came to pass.

The carrier tries to quibble with the phrase ‘‘new runs”’

as used in the above-quoted portidh of the Akron decision.

The carrier would confuse this Court and have it believe

that the word ‘‘run”’ is a word of art in the railroad indus-

try. Firstly, it must be remembered that the word appears

in an opinion of a’Court of Appeals and not in a railroad

agreement. Thus, the NRAB has no special competence to

define its meaning.

Secondly, the word was used in a well-known meaning.

Its sense is that given in Webster’s New International Die-

tionary (2d Ed.) at 2185:

run, n. * * * 7, The distance or extent of territory,

covered or to be covered, * * *, during a special course,

time or operation; the ship’s run was only 300 miles;

* * *; an engineer’s run.

2

The court in Akron was simply saying that when a new

assignment’ comes into being, the National Diesel Agree- © -

ment would regulate the use of firemen.

Whether this applies to new assignments which are mod-

ifications of existing ones is not material here. »As shown

by carrier’s agreement of August 9, 1967, with the Brother-

hood of Locgmotive Engineers, this was a completely new

assignment for this carrier. That agreement states (Plain--

tiff’s Appendix 8-9):

To enable the Carrier to be cmaetitive and handle

certain intraplant work associated with the steel manu-

facturing process atthe 84” Hot Strip Mill of the

Gary Sheet & Tin Works, it is agreed:

1. An assignment known as the ‘‘84” Hot Strip Mill’’

Assignment may be: established to perform intra-

plant work not now performed by EJ&E crews:

~ 2. The work of this assignment will include the switch-

ing of Yard P, servicing the 84” Hot Strip Mill, and

related intraplant switching not now performed by

EJ&® crews at the 84” Hot Strip Mill and at other

- mew plants and facilitiés that may be added in the

‘) future at the Gary Sheet & Tin Works.

Pa

,

Moreover, in his te8timony before the court below, James

Shimeall, carrier’s Labor Relations Counsel, admitted that

the 84 inch Hot Strip Mill was first serviced by carrier

1. The word ‘‘assignment”’ is virtually synonymous with the

Webster definition of ‘‘run.’’ ‘‘Assignment,’’ in, the railroad

industry has attained the status of a word of art. perating

employees (engineers, firemen, brakemen, etc.) bid forétheir par-

ticular positions on the basis of seniority. The bids are solicited

by way of a ‘‘bulletin’’ which describes the area or territory to

be covered, the work to be performed ( switching, road freight, pas-

senger, etc. ), the starting time and estimated completion time of the

trip, the location for starting (‘‘on duty’’) and completion (‘‘tie-

p’’) for each crew member, and the days on Ssh the position

will work. The ‘‘assignment”’ is defined by the bulletin description.

2. Emphasis added. It is also important to note that the word

‘‘establish’’ is used in the railroad industry only in connection

‘with new assignments.

A13

* * * when the new plant went into operation. It was

a brand new facility, the first time it went into full

operation. ee Appendix 50. Emphasis

added. ] |

Carrier’s argument on the definition of “new”? runs does

not appear to me to have been made in good faith.

. The last argument raised by carrier is that a stipulation

it entered into with.the Brotherhood here constituted an

agreement as to new work rules under Award 282. The un-

rebutted testimony of Charles Mellen, the Brotherhood’s

General Chairman, showed that the stipulation was a tem-

porary job-protection device for the benefit of firemen put

out of work by the state court’s decision in the carrier’s

challenge to Indian&a’s Full Crew Law. It provided alter-

nate employment to firemen pending disposition of an ap-

peal to the Indiana Supreme Court, which held afainst they

_ earrier. Defendant’s Appendix 19, 40. That the stipulation

was not a permanent change is shown by, further testimony

of Shimeall in which he admitted that earrier’s sole reliance

was placed on its contention that Award 282 modified the

Yational Diesel Agreement. At Defendant’s Appendix 51,

Shimeall stated: nor.

‘I then recall that the conversation came up that

he thought we had to have firemen on here, and the

conversation then went along the line—I advised him

that we had gone through this before in regard to the

hot cinder and hot metal runs whereby it was the car-

rier’s contention that our Diesel Agreement hdd been

modified by Award 282,-and that they were fighting

that battle or had a complaint against the Public Serv-

ice Commission of Indiana, and I advised him that if

he or they won their case before the Commission, that, —

of course, we would have to have firemen—put firemen

on these assignments. [Emphasis added.]

Thus, this defense also does not appear to have been made

in good faith. ’

Al4

For the foregoing reasons, I am unable to find any good

faith defense on the part of the carrier which is based on

any existing agreement. I believe that carrier unilaterally

changed the existing working conditions contained in the e

National Diesel Agreement in violation of the Railway

Labor Act. Accordingly, I would reverse the judgment be-

low and remand for further proceedings.

° Alb

fs)

MEMORANDUM OPINION OF THE DISTRICT COURT

BELOW, PER GEORGE N: BEAMER, JUDGE OF *THE

UNITED STATES DISTRICT COURT FOR THE NORTHERN

~ DISTRICT OF INDIANA. ae |

March 11, 1968,

The plaintiff Brotherhood of Railway Firemen’ and

Trainmen represents the firemer employed by the defend-

ant Elgin, Joliet & Eastern Railway. During August of

1967, the defendant commenced a new run known as the 84

inch strip mill job. No firemen were assigned to this run

and defendant did not communicate or negotiate with

plaintiff concerning it. The defendant, instead, entered into

, agreements with the unions representing the engineers

and switchmen providing for a reduced crew and other

changes in the work rules applicable to the job.

Plaintiff repeatedly requested negotiations - concerning

the use of firemen on the run because it was, and is, plain-

tiff’s position that the collective bargaining agreement

between the parties (Pl. Ex. 5) and the 1950 Diesel Agree-

ment (Pl. Ex. 6) required the use of firemen on all diese]

engines with certain exceptions not applicable here. The /

defendant refused negotiations on the ground that there

was nothing to discuss because, in its view, the collective

bargaining agreement between the parties and the 1950

Diesel agreement had been modified and amended by the

Award of Arbitration Board 282. Under the defendant’s

interpretation of this award, firemen were not required on

new runs such as the one in dispute used in industrial

switching.

The plaintiff then cominenced this suit for injunctive re-

lief and asked that the Railway be prohibited from operat-

ing the 84 inch strip mill run without a fireman until all

statutory procedures for changes in work rules provided

bed

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by contract were complied with. Title 45 * S. C. § 152

Seventh provides:

No carrier, its officers, or ag yents shall change the rates

of pay rules, or working conditions of its employees as

a class, as embodied in, agreements except in the man-

ner pr escribed i in such agreements or in section 156 of

this Title.

Title 45 U.S. C. § 156 provides for seen negotiation, and

mediation before any changes in rules, or rates of pay, ete.

may be changed as provided in Section 152 Seventh. There

is no claim here that the defendant complied with these pro-

visions. The defendant claims instead that théy are iti-

applicable because it is not attempting to change the ‘‘rates

of pay, rules or working conditions’’ embodied in any col, .

lective bargaining agreement. On the contrary, it claims

that the existing agreements wate modified by the Award.

of Arbitration Board 282 so as to allow them to operate

this run without firemen; aan’

The dispute between the parties is neither tiew nor

unique. The railroads and firemen’s unions have long

argued over the need for firemen on freight and switching

operations. Followingg@be decision of the Supreme Court,

in Brotherhood of aioe Engineers, et al. v. Balti-

more & Ohio R. R. Co., 372 U.S. 284 (1963) that the parties

had exhausted all statutory procedyres, the railroads

served a statutory notice that they planned to abolish the

firemen on freight and switching engines. The resulting

dispute threatened to halt the nation’s railroads, and

caused Congress to pass Public Law 88-108 which estab-

lished Arbitration Board 282. The Board issued what is

known as Arbitration Award 282 (Def. Ex. 1) providing a

procedure for the elimination of firemen from most runs.

By its own terms, the award was to last two (2) years,

but the parties agreed to a series of limited extensions. -

Finally, at the termination of the last extension, the union

4

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claimed that the 1950 Diesel. Agreement was in full force

and effect and that firemen had to be restored on all diesel,

- engines. The railroads contended that the Arbitration

Award had become part of all agreements and that they

Could continue to use its procedures to abolish jobs. This

dispute terminated in the case of Brotherhood of Locomo-

tive Firemen and Enginemen v. Bangor and Arogstoock

R. R. Co., and related cases, 65 LRRM 2229, 65 LRRM

2995, 66 LRRM 2268, in the United States District Court

and the United States Circuit Court of Appeals for the

District of Columbia (Copies of the various opinions in

these cases were supplied to the Court in connection with

defendant’s motions to transfer or dismiss. Both the Court

‘and the parties have relied on these cases during the course

of the litigation).. There the Court of Appeals held, in es-

sence, that the Arbitration Award was not part of the work

____-rules—or collective bargaining agreements between the

parties, but rather, it had established a method, which

terminated with the award, for changing these agreements.

It held that those jobs abolished during the period of the

award did not. have to be reestablished but that the pro-

cedures of the award were no longer available to the rail-

roads. It further held that ‘‘any new.runs created after ~

Award 282 are subject to the National Diesel Agreement,

and its, requirement of a fireman on each engine crew.

Moreover, the National Diesel Agreement is in effect

even though the only reason why a change in its work

‘rule was not made under the Award during its lifetime was

the fact that the change was blocked by a state’s full crew

law.’’ The Supreme Court denied certiorari on January

29, 1968.

It is against this background that the Court must decide ~

the present case. The parties agree that if this is a

‘‘minor’’ dispute within the meaning of the statutexand

the Court interpretations, this Court has no jurisdiction

ca”

A18:

cad

to grant the relief asked. On the other hand, the parties

also agree that if it is a ‘*major’” dispute, then the Court

must enjoin any changes in the rules and working condi-

tions. embodied in the agreements between the parties,

until all statutory procedures are completed. (See Vir-

ginia R. Co. v. System Federation No. 40, 300 U. S. 515

(1937).) .

The Court has examined numerous cases in an effort to

determine the difference between: ‘‘major\ and ‘‘minor®

disputes but has discovered no simple taliS%man. In Elgin,

goliet & Eastern y. Burley, 325 U.S. 711, 722-23 (1945),

‘involving the right of a union to settle individdal claims

for money damages on behalf of its members, the Supreme,

Court said:

The difference between disputes over grievances and

disputes concerning the making of collective ,agree-

ments is traditional inyailway labor disputes .. . |

The two sorts of disputes are sharply distinguished

though there are points.af common treatment. Never-

theless, it is clear from the Act itself, from the his-

tory of railway labor disputes -and from the legisla- |

tive history of the various statutes which have dealt.

with them, that Congress has drawn major lines of

difference betw een the two classes of controversy.

The first, relates to disputes over the formation of

collective agreements or efforts to secure them. They

arise where there is no agreement or where it is sought

-to change the terms of one, and therefore the issue is

not’ whether an existing agreement controls the con-

troversy. They look to the acquisition of rights for

the future; not to assertion of rights: claimed-to_have

vested in the past. —

The segond class, howevergcontemplates the exist-

ence of a collective agreement already concluded or,

at any rate, a situation’ in which no effort is made to

bring about a formal change.in terms or to create a

new one. The dispute relates either to the meaning or _

._proper application of a particular provision with ref-

e erence toa specific situation or to an omitted case.

A19

In general the difference‘is between what are re-

, garded traditionally as the major and minor disputes

~"— of the railway labor world. (Citations. omitted.)

The Court then outlined the differences in treatment ac-

corded the two types of disputes. A major dispute goes

first to negotiation, then to mediation, then possibly to a

Presidential Emergency Boayd, and finally to self help.

The minor disputes also start with negotiation, but then

go to the National Railway Adjustment Board or a special

board for binding arbitration. ‘In other eases, the Su-

preme Court has further delineated the distinction between

_ the ‘two- types of dispute. ‘In Brotherhood fof R. T. v.

“Chicago R. & R. I. R. C., 353 U. 8; 30 (1957) it held that

a dispute over individual grievances was a ‘‘minor dis-

t pute’’ and a strike could be enjoined to protect the juris-

_ diction of. the NRAB.. In Railroad Telegraphers v. Chi-

cago & N. W. R. Co., 362 U. S. 330 (1960) the Court held

that a dispute over a new. provision in a contract was a

‘‘major dispute’’ and a strike could not be enjoined.

Finally, in- Locomotive Engineers v. Louisville & N. R.

. Co., 373 U.S. 33,.10-L. ed, 2d 172, 176 (1963) involving a

dispute over the interpretation of an award of the Railroad

Adjustment Board, the Court said:

‘The several decisions of this Court interpreting/§ : 3

. First have made it clear that this statutory grievance

procedure is a mandator’y, exclusive, and eomprehen-

sive system for resolving grievance disputes. The’ right

of one party to place the dispute before the Adjustment

Board, with or without the consent of the other has-

been firmly established. * * */And the other party may

not defeat this right by resorting to some other forum.

** * (Citations omitted.)

Iryaddition to the Supreme Court cases already discussed,

* this Qourt has examined numerous cases from the Circuit

Courts of Appeal. From these decisions, certain basic prin-

A20

ciples may be discerned. A dispute over an individual em-

ployee’s rights under a collective bargaining agreement is

_ a minor dispute, and a court may enjoin a strike but cannot

determine the basic issue. Loco. Engineers v. Louisville &

N. R. Co., 375 U.S. 33, 10 L. ed. 172 (1963) ; Brotherhood of

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

L. ed. 2d 622 (1957); Elgin, Joliet € Eastern R. Co. v.

Burley, 325 U.S. 711, 87 L, ed. 1886 (1945). Disputes over

an attempt to make an express change in a collective bar-

gaining agreement are major disputes and the Court may-

enjoin such a change unless statutory procedures are fol-

lowed. Florida E. C. Ry. Co. v. Brotherhood of R. Train-

men, 363°F. 2d 172 (Sth Cir. 1964); Southern Ry. Co. v.

Brotherhood of Locomotive Firemen, etc., 337 F. 2d 127

(D. C. Cir. 1964). Strikes over such disputes cannot be

enjoined. Railroad Telegraphers v. Chicago & N. W. R. Co.,

362 U.S. 330, 4 L. ed. 2d 774 (1960). Disputes over the in-

terpretation of contracts, even though the interpretation

might have major effects, are minor disputes and the

Courts have no right or power to interpret the contract or

enjoin the effect of either side’s interpretation. St. Louis

S.F. dé T. Ry. Co. v. Railroad Yardmasters of America, 328

F. 2d 749 (5th Cir. 1964) ; Missouri-Kansas-Texas R}Co. v.

Brotherhood of Locomotive Engineers, 266 F. 2d 335 (5th

Cir. 1959). Finally, disputes over a local issue w hich does

not involve an attempt to change the collective bargaining

agreement are minor disputes. Illinois Central R. Co. v.

Brotherhood of Loco. Fire & Eng., 322 F. 2d 850 (7th Cir.

1954).

Two very recent cases, one from this Circuit, are most

helpful. In Brotherhood of Loco. Fire & Eng. v. Chicago &

Illinois M. Ry. Co., 386 F. 2d 229 (7th Cir, 1967) the factual

situation was much like that facing this'Court. The plain-

tiff brotherhood brought the action for a declaratory

judgment that the collective bargaining agreement and a

A21

decision of a special adjustment board compelled the rein-

statement of a certain run and for an injunction compelling

the railroad to reinstitute the run. The Railroad contended

that Arbitration Award 282 had modified the agreement,

particularly Section 6(0) thereof, and it was free to drop

the run. The union claimed that this was’a major dispute

because there was no genuine dispute over the meaning of

the contract, the meaning having been determined by the ~

‘arbitration award. The Court said, at 386 F. 2d 229:

We think the affidavits reveal that no genuine issue of

fact existed between the parties as ‘to whether there was |

.a dispute about the proper interpretation of Section

6(0)-.of the bargaining agreement in light of Award

not err in entering summary judgment dismissing the

Brotherhood’s suit for lack of jurisdiction over a dis-

No. 282. It ner that we think the district court did’

pute such as this which is particularly appropriate ‘for .

settlement by the parties themselves or by the adminis-.

trative agency set up for the purpose by the Railway

* Labor Act.

Likewise, in Southern Ratlway Company v. Brotherhood

of Locomotive Firemen & Enginemen, .......... y. .:.........

(D. C. Cir. Civil Action No. 1169-67, 1968) the Court said:

(W)here the railroad asserts a defense based on the

terms 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 prescribed by §6 for

alteration of existing agreements. |

This Court has carefully considered the contentions of . ‘

the parties and the effect of the District of Columbia liti-

gation on the questions before it. It finds that the Railroad

has made a good faith claim to a defense based on the

collective bargaining agreements as modified by Arbitra-

tion Award 282. Certainly at the time this litigation was

»

A22

commenced and the strip mill run began, the Railroad

had such a good faith claim. At that time it was involved in

protracted litigation with the plaintiff over many of the

very questions before this Court. Even when the case was

taken under advisement, the Railroad’s petition for cer-

tiorari was still before the Supreme Court. Now, with that

litigation concluded, the railroad has other claims, appar-

ently made in good faith, which would allow it to operate

this run without firemen and without changing work rules

established by the collective bargaining agreements and

arbitration award. One such claim is its contention that

this is not a ‘‘new run’”’ within the meaning of the Circuit

Court of Appeals decision in the+District of Columbia. The

Court, therefore, finds that this is a minor dispute within

the meaning of the statute and case law, and that it is with-

_ out jurisdiction to grant the relief sought.

There is some support for the proposition that even in

minor disputes, the Court may take jurisdiction of the case

and use its injunctive powers to protect the jurisdiction of

the adjustment boards. Here, however, there is no com-

plaint before any adjustment board, and therefore, no basis

for the court retaining jurisdiction of the case. Manion v.

Kansas City Terminal Ry., 353 U. S. 927 (1957) (per

curiam); Southern Ry. Co. v, Locomotive Firemen é En-

ginemen, ........ F. 24 ...... (D. C. Cir. Civil Action No. 1169-

67, (1968)) (per curiam); Westchester Lodge 2188 etc. v.

Railway Express Agency, Inc., 329 F. 2d 748 (2nd Cir.

1964); Hilbert v. Pennsylvania R. R., 290 F. 2d 881 (7th

Cir. 1961), Cert. denied 368 U.S. 900 (1961).

The case is dismissed for lack of jurisdiction.

A23

STATUTES INVOLVED.

Railway Labor Act, s§ 2, First, Seventh, 3 First (i) and

6; 45 U. 8. C. §§ 152, First, Seventh, 153, First (i) and

156:

Section 2, First, of the Railway Labor Act.

‘First. It shall be the duty of all carriers, their

officers, agents and employees to exert every reason-

able effort to make and maintain agreements concern-

ing rates of pay, rules, and working conditions, and to

settle all disputes, whether arising out of the applica-

tion 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.’’ 45 U. S. C. $152,

First.

Section 2, Seventh, of the Railway Labor Act.

‘Seventh. No carrier, its officers, or agents shall

change the rates of pay, rules, or working conditions of

its employees, as‘a class as embodied in agreemen

except in the manner prescribed in such agreements o

in Section 6 of the Act.” 45 U.S. C. N 152, Seventh.

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

“There is hereby established, a Board to be known as

the ‘National Railroad Adjustment Board’, the/4nem-

bers of which shall be selected within thirty days after

approval of this Act, and it is hereby provided—* * *

(i) The disputes between an employee or group

of employees and a carrier or carriers growing out

of grievances or out of the interpretation or appli-

cation of agreements concerning ‘rates of pay,

rules, or working conditions, including cases pend-

ing and unadjusted on the date of approval of this

Act, shall be handled in the usual manner up to

and including the chief operating officer of the

carrier designated to handle such disputes; but

-~

« ss ‘A24

failing to reach an adjustment in this manner, the

disputes may be referred by petition of the parties

or by either party to the ‘appropriate. division of

the Adjustment Board with a full statement of the

facts and all supporting data bearing upon the dis-

putes.’’ 45 U.S.C. § 153, First (i).

Section 6 of thé Railway Labor Act.-

**Sec. 6. Carriers and representatives of the em-

- ployees shall give at least thirty days’ written notice of

an intended change in agreements affecting rates of

pay, rules, or working conditions, and the time and

place for the beginning of conference between the rep-

resentatives. of the parties interested in such intended

changes shall be agreed upon within ten days after the

receipt of said notice, and said time shall be within the

thirty days provided in the notice. In every case where

such notice of intended change has been given, or con-

ferences are being held with reference thereto, or the

services of the Mediation Board haye been requested by —

either party, or said Board has proffered its services,

rates of pay, rules or working conditions shall not be

altered by the carrier until the controversy has been

finally acted upon as required by section 5 of this Act

Chas Mediation Board, unless a period of ten days

has elapsed after termination of conferences withont

uest for-or- proffer of the services of the Mediation

Board.’’ 45.U.8.C. § 156.