BROTHERHOOD OF LOC. F. & E. v. Southern Pac. Co.(T. & LL)

Citation447 F.2d 1127
Decision Date30 August 1971
Docket NumberNo. 30803.,30803.
PartiesBROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, Plaintiff-Appellant, v. SOUTHERN PACIFIC COMPANY (TEXAS AND LOUISIANA LINES), Defendant-Appellee, Brotherhood of Locomotive Engineers, Party Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

William P. Fonville, Dallas, Tex., for plaintiff-appellant.

Marvin Menaker, Bader, Wilson, Menaker & Cox, Dallas, Tex., for Brotherhood of Loc. Engineers.

V. Reagan Burch, Jr., Baker & Botts, Houston, Tex., for Southern Pac. Co.

Before GOLDBERG, GODBOLD, and RONEY, Circuit Judges.

GOLDBERG, Circuit Judge:

In this labor case railroad brotherhoods, belying their names, engaged in fratricidal war involving their pater-familias, the Southern Pacific Railroad. Congress, finding the courts ill-equipped to exercise Solomonic wisdom in these family disputes, derailed most judicial interventions by means of the Railway Labor Act. We therefore decline to interfere in this intramural controversy and remit the parties to the tribunal created by Congress for final arbitration.

I.

For many years the railroad industry has recruited virtually all locomotive engineers from the ranks of locomotive firemen. This pattern has been adhered to on the Southern Pacific. Prospective Southern Pacific engineers are first employed as firemen and placed on the firemen's seniority roster. As the newly-hired firemen move up the seniority ladder within their craft, they learn the skills of an engineer. After prescribed periods of employment, these firemen are examined for engineering capabilities, and those who qualify, while retaining their firemen's seniority, are placed on the engineers' seniority roster and become eligible for promotion. Since openings in the engineering ranks are not normally available, employees who are newly qualified as engineers continue to work as firemen until the demand for active engineers has reached far enough down the seniority list of that craft to encompass them. Conversely, surplus engineers, who have retained their firemen's seniority, are termed "demoted engineers" and are entitled to displace firemen with less seniority. With fluctuations in the demand for engineers, the employees at the bottom of the engineer seniority list in effect "ebb and flow" between serving as engineers and as firemen.

Whether or not there is a surplus of engineers is determined by reference to various "boards" from which work assignments are made. Thus, engineers who work for the Company in freight service are assigned to either "pool freight boards" ("pool boards") or "extra boards." Assignments for regularly established runs are generally made from the pool board, while assignments involving work of an irregular or unpredictable nature are made from the group of engineers assigned to the extra board. Senior engineers are given preference in making assignments to the pool board, and, if a reduction in the number of engineers assigned to a board is required, it is to be in reverse order of seniority. When the size of a pool board is reduced, the excess engineers may choose to demote to the extra board or to take other jobs, such as yard work, available to them on a seniority basis. Engineers cut or displaced from an extra board may return to work as firemen.

In order to divide the available work equitably, it has long been a practice to establish mileage limitations which regulate on a mathematical basis the number of engineers assigned to any given board. These limitations are designed to maintain a desired ratio between the number of engineers on a board and the amount of work available to that board, so that the mileage, or the equivalent thereof, obtained by the engineers on the board falls within specified limits. If the average mileage obtained during a check period falls below a certain figure, the number of engineers on the board must be reduced. Conversely, if the average mileage exceeds a certain figure, the number of engineers on the particular board must be increased. Moreover, it has been a general practice to limit the number of miles per month an individual engineer is permitted to run. Once this limit is reached, the individual remains out of service until the beginning of the next month.

Both the engineers' and the firemen's unions1 have included in their collective agreements with Southern Pacific provisions regulating the progress of employees from fireman to engineer, including the process of "ebb and flow" for those employees near the bottom of the engineer list and near the top of the fireman list. Of particular relevance is an agreement executed on April 1, 1940, whereby the Southern Pacific and the Engineers, inter alia, devised particular mathematical ratios to govern board assignments. Specifically, that agreement provided that if engineers on a pool board averaged less than 3200 miles in freight service per month, the number of engineers on that board must be reduced. If the average monthly mileage exceeded 3800 miles, the number of board engineers was to be increased. Individual engineer mileage was also limited to 3800 miles.

Under the Engineers' mileage limitation agreements it was the practice to have local chairmen, drawn from the ranks of the Engineers, see that the mileage regulations were observed. Because of dissatisfaction with this system, local chairman having violated the agreements by permitting particular engineers to run over their maximum mileage, the Firemen served a formal 30-day notice on Southern Pacific under § 6 of the Railway Labor Act, 45 U.S.C.A. § 1562, for negotiation of a rule specifying the conditions under which demoted engineers may return to service as firemen. On December 30, 1956, these negotiations culminated in the execution of a Mediation Agreement between the Southern Pacific and the Firemen under the auspices of the National Mediation Board. This agreement provided:

"(a) That the mileage rules and regulations now in effect providing conditions under which demoted engineers flow to and from firing service shall continue in full force and effect (NOTE: Mileage limitations are: passenger 4000-4800; freight 3200-3800; extra list 3000-3800; yard 35 days. Ten-day checks.)
(b) The Company will see that the aforesaid mileage rules and regulations are properly applied.
(c) The Company will furnish each Local Chairman and the General Chairman check of mileage of enginemen as soon as available upon the completion of each payroll period."

The mileage rules and regulations referred to in this agreement, which were in effect on December 30, 1956, were those provided in the 1940 Mileage Limitation Agreements between Southern Pacific and the Engineers.

Other than actually running the trains, engineers engage in other time-consuming activities such as initial terminal delay, final terminal delay, initial terminal switching, final terminal switching, and held-away-from-home terminal time. Denominated "arbitraries," these activities are best measured in hours and minutes, but, for various purposes, including compensation, are converted at a particular rate to their equivalent in miles per hour for work performed. At the time the 1956 Firemen's Agreement was executed there had been some confusion between the Engineers and Southern Pacific as to whether or not arbitraries were to be included as "equivalent mileage" in computing mileage limitations under the 1940 Agreement. Therefore, on March 18, 1957, the Southern Pacific and the Engineers, under the auspices of the National Mediation Board, entered into a Mediation Agreement in which the parties agreed that the proper application of the mileage rules and regulations required, inter alia, the inclusion of arbitraries.

With certain exceptions, this practice of including arbitraries was followed until October 9, 1968, when the Engineers, after service of a section 6 notice on the Company, entered into an agreement with Southern Pacific which specifically excluded arbitraries, as of November 1, 1968, in computing mileage for the regulation of the lists of engineers in pool freight service. This agreement affected only the regulation of the size of engineer freight pool boards and did not purport to affect any computations regarding engineer extra boards. Arbitraries, therefore, were still to be included in computing total mileage accumulated by individual engineers on either pool or extra boards and in regulating the size of engineer extra boards.

On November 4, 1968, the Firemen filed an action in federal district court seeking to enjoin the Southern Pacific from effectuating the 1968 Engineer Agreement on the ground that such agreement represented a change in the Firemen's 1956 Agreement without exhaustion, with regard to the Firemen, of the notice and bargaining procedures of the Railway Labor Act. The Engineers' union intervened, and, on June 24, 1970, the district court, finding that judicial interference was improper, rendered judgment for defendant Southern Pacific.

II.

The basic purpose of the Railway Labor Act is "to avoid any interruption to commerce or to the operation of any carrier engaged therein." 45 U.S.C.A. § 151a.3 To this end Section 2, First of the Act, 45 U.S.C.A. § 152, First, imposes the general duty on both parties "to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions * * *" and erects elaborate machinery for dispute resolution. More specifically, the Act provides procedures (1) to aid in the resolution of disputes arising from proposed changes in a collective bargaining agreement, and (2) for the determination of grievances arising over the interpretation or application of the agreement. Although the Act did not expressly label these two categories of controversies, they are commonly referred to as "major" and "minor" disputes, respectively, and lead to quite different procedural consequences. See Elgin, J. & E. Ry....

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