Baker v. United Transportation Union, AFL CIO, 19426

Citation455 F.2d 149
Decision Date30 December 1971
Docket Number19427.,No. 19426,19426
PartiesGeorge P. BAKER et al., Appellants in No. 19,426, v. UNITED TRANSPORTATION UNION, AFL CIO, et al., Appellants in No. 19,427.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

COPYRIGHT MATERIAL OMITTED

Hermon M. Wells, Philadelphia, Pa. (Richard N. Clattenburg, Philadelphia, Pa., on the brief), for appellants in No. 19426 and appellee in No. 19427.

Cornelius C. O'Brien, Jr., Philadelphia, Pa., for appellee in No. 19426 and appellants in No. 19427.

Before ALDISERT, GIBBONS and MAX ROSENN, Circuit Judges.

OPINION OF THE COURT

MAX ROSENN, Circuit Judge.

This case is an appeal by the Penn Central Transportation Company and a cross appeal by the bargaining representative of its trainmen, the United Transportation Union, from a decision of the United States District Court for the Eastern District of Pennsylvania, 317 F.Supp. 768. That decision construed the requirement of the Railway Labor Act (45 U.S.C. § 151 et seq.) that once a notice has been filed by a party to a collective bargaining agreement under Section 6 of the Act1 seeking a change in the pay, rules, or conditions of employment, no changes in the disputed terms can be unilaterally undertaken pending a resolution of the dispute.

The railroad contends that prior to such notice it had established a practice of freely changing the location of physical and instructional examinations and instructional classes throughout its system without consultation with the union. It asserts that even during the pendency of a proper notice for changes in the rules governing location of examinations, the "status quo" required by the Act still permits it to make further shifts in locations. The union disagrees, contending that there was no such practice. Alternatively, they suggest that even if there was a past practice, the freeze envisioned by the Railway Labor Act requires that all locations operating as of the date of the notice must be maintained as part of the status quo.

Although there is dispute in this case about the existence of any practice on the part of the railroad at any time, the heart of the controversy is whether the statutory requirement under Section 6 demanding maintenance of pay, rules, and conditions of employment is intended: (1) to permit the railroad to continue a past practice even if it means changes in the actual physical locations of examinations; or (2) to freeze the actual locations open as of the date of the notice in spite of the railroad's past history of freely making changes in these sites.

Between the years 1956 and 1970 the railroad made sixteen changes2 in medical stations and numerous changes in instructional examination sites.3 The only provision in the contract dealing with examinations was Rule 1-B-1, which stated:

When examinations other than physical examinations are given to trainmen, the Company shall arrange for trainmen to take them without loss of time.

The railroad states that for this reason it never consulted the union about the changes it made.

Prior to 1966 the union never complained about the closings nor sought any other contractual arrangement to govern any aspect of the problem. On April 21, 1966, the Brotherhood of Railroad Trainmen, the predecessor of the present union,4 filed a Section 6 notice with the railroad requesting essentially that trainmen be paid for the time they spent taking the various examinations.5 Direct negotiations proceeded without agreement and the services of the National Mediation Board were invoked by the union on April 14, 1969.6 Between April 21, 1966, the date of filing the first Section 6 notice, and March 1, 1970, further changes in the location of examinations took place7 and incurred no protest from the union. However, on March 2, 1970, the union served the railroad with another Section 6 notice which requested a rule change that would have required the railroad to send trainmen for examinations at their home terminal, or if no examinations were currently held at that terminal, to the one nearest their home.8

The union believed that regardless of any past practice, the second Section 6 notice then froze all existing examination sites and prevented their abolition. The railroad, interpreting the meaning of status quo required by Section 6 differently, believed that it could continue what it considered its past practice of changing examination sites without consulting the union pending resolution of the controversy.

On July 17, 1970, the railroad closed its medical facility in the Wilmington, Delaware, passenger station.9 The union protested the closing as contrary to the requirement that conditions not be altered pending the resolution of the April 1966 and March 1970 notices and threatened to strike the railroad. The railroad sought the services of the National Mediation Board to resolve the dispute surrounding the March 1970 notice and applied to the district court for an injunction against the strike.

The district court not only enjoined the strike but also found that the closing at Wilmington violated the duty of the railroad to "`preserve and maintain unchanged those actual, objective working conditions 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.' Detroit & Toledo Railroad Co. v. United Transportation Union et al., 396 U.S. 142, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969)." Because of the burden on the railroad and the pendency of the matter before the National Mediation Board, it refused to order any sites reopened but did enjoin any further changes in the location of physical and instructional examinations.

The union has appealed from that decision, contending that the injunction against it should be lifted. The railroad has also appealed on the grounds that there was a past practice of freely changing examination sites; and that the past practice of freely changing examination sites and the proper interpretation of Section 6's status quo provision would permit it to continue making changes in those locations pending resolution of the dispute.

I. THE PURPOSE OF THE RAILWAY LABOR ACT

Although American railroads no longer totally dominate this country's freight and passenger transportation industry as they did in 1926 when the Railway Labor Act was passed, they remain the backbone of much of our interstate transportation system. The primary purpose of that legislation10 was to insure that there would be no interruption of this vital link in our nation's commerce. The Act was designed to "provide a machinery to prevent strikes," Texas & N. O. R. Co. v. Brotherhood of Railway Steamship Clerks, 281 U.S. 548, 565, 50 S.Ct. 427, 432, 74 L.Ed. 1034 (1930), and set up an elaborate scheme of negotiation, mediation, voluntary arbitration and conciliation to handle major disputes11 so that the parties could attempt to work out a settlement of their differences without resorting to destructive lock-outs or strikes that would cripple the economy and cause loss of work, goods and services to millions of people. Detroit & Toledo Shore Line R. Co. v. United Transportation Union, supra, 396 U.S. at 148-149, 90 S.Ct. 294; Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 381, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969); Elgin, J. & E. R. Co. v. Burley, 325 U.S. 711, 721-731, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945).

While disputes are not to be talked to death, they are at least intended to be drawn out so that tempers can cool and reason prevail. Detroit & Toledo Shore Line R. Co. v. United Transportation Union, supra, 396 U.S. at 149, 90 S.Ct. 294; Brotherhood of Railway Clerks etc. v. Florida East Coast R. Co., 384 U.S. 238, 246, 86 S.Ct. 1420, 16 L.Ed. 2d 501 (1966). In the time taken to work through the various steps, an appropriate climate can be developed for rational bargaining and public opinion can be "mobilized in favor of a settlement without a strike or lockout." Detroit & Toledo Shore Line R. Co. v. United Transportation Union, supra, 396 U.S. at 150, 90 S.Ct. at 299.

As pointed out in the Detroit and Toledo Shore Line case, supra, at 150, 90 S.Ct. 294, if the railroads and their workers are going to be able to resolve their differences peacefully, neither side must resort to self-help. The pay, rules and working conditions that prevail when the Section 6 notice is filed must be maintained and neither side may attempt to use unilateral action to gain what it wants. If the status quo is not rigidly enforced, the statute becomes worthless.

II. THE PAST PRACTICE

It may be a difficult task to ascertain what is the status quo in any particular case. In many labor situations, particularly in the railroads, "where a condition is satisfactorily tolerable to both sides, it is often omitted from the agreement." Detroit and Toledo Shore Line R. Co., supra, at 155, 90 S.Ct. at 302. This omission does not necessarily preclude it from becoming a working condition by acquiescence or by tacit understanding.

The difficulty in finding the status quo is compounded when the working condition alleged to exist is not a fixed contractual condition, like a set rate of pay, but is an on-going management prerogative that permits the railroad to change some aspect of its operations, such as the place for physical and instructional examinations of its trainmen. It should be noted that the district court's order does not discuss the existence of any past practice on the part of the railroad allowing it to change sites freely.12 The order, which bars the union from disputing changes in the 1966 to 1970 period because of laches13 and finds the 1970 changes in violation of the freeze brought about by the March 1970 notice, could be equally well interpreted as a finding that no past practice existed or as a finding that while a past practice existed, the filing of the second Section 6...

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