UNITED TRANSP. U. GEN. COM. OF ADJ.(PROP. OF PC CO.) v. Baker

• Decision Date: 22 February 1974
• Docket Number: No. 72-1955.,72-1955.
• Citation: 499 F.2d 727
• Parties: UNITED TRANSPORTATION UNION GENERAL COMMITTEE OF ADJUSTMENT (ON PROPERTY OF PENN CENTRAL COMPANY), Plaintiff-Appellee, v. George P. BAKER et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

499 F.2d 727 (1974)

UNITED TRANSPORTATION UNION GENERAL COMMITTEE OF ADJUSTMENT (ON PROPERTY OF PENN CENTRAL COMPANY), Plaintiff-Appellee, v. George P. BAKER et al., Defendants-Appellants.

No. 72-1955.

United States Court of Appeals, Seventh Circuit.

Argued September 25, 1973.

Decided February 22, 1974.

Certiorari Denied October 15, 1974.

Robert H. Bierma, Chicago, Ill., Hermon M. Wells, Philadelphia, Pa., for defendants-appellants.

Keith E. Roberts, Lloyd E. Dyer, Jr., Wheaton, Ill., for plaintiff-appellee.

Before SWYGERT, Chief Judge, KNOCH, Senior Circuit Judge, and CAMPBELL^*, Senior District Judge.

Certiorari Denied October 15, 1974. See 95 S.Ct. 69.

SWYGERT, Chief Judge.

The trustees of the Penn Central Transportation Company appeal from a decree granting the plaintiff, United Transportation Union, an injunction restraining the defendant railroad from replacing an asserted "crewboard" with computer print-outs.

The union's claim was that the substitution of "print-outs" for the prior system of notifying railroad employees of work assignments was a unilateral change of the collective bargaining agreement between the union and the railroad, and accordingly gave rise to a "major dispute" between the parties as delineated in section 6 of the Railway Labor Act. 45 U.S.C. § 156. If the union's position is correct, there would be no question but that the district court had jurisdiction to issue injunctive relief to maintain the status quo in the face of a "major" or section 6 dispute. The railroad asserts that its actions were within the purview of the parties' collective bargaining agreement and that at most the instant action involves differences arising out of the interpretation of the collective bargaining agreement, that is, a "minor" or section 3 dispute. 45 U.S.C. § 153. In a minor dispute the district court's assumption of jurisdiction to grant injunctive relief would in general be inappropriate; rather, such a dispute should be deferred to the special competence of the adjustment board, the arbitration machinery specifically mandated by the Railway Labor Act in such circumstances. The threshold question in this action is whether a major or minor dispute is presented by the facts. We find that the circumstances created a minor dispute.

I

The pertinent section of the collective bargaining agreement provided:

8-B-1. Crew boards. Crew boards showing the order in which crews are to go out shall be maintained. At outlying points where a crew board attendant is not on duty throughout an entire calendar day, arrangements shall be made so that trainmen desiring information as to their standing on the crew shall be furnished such information.

Prior to the latter part of 1968, the railroad carried out the crew calling function at the Colehour Yard, located near Whiting, Indiana, by providing a crew dispatcher on the first trick (shift) and yard clerks on the second and third tricks. The crew board at the Colehour Yard consisted of records kept in the form of mimeographed sheets of paper containing a list of regular assignments, one list for each trick. Accompanying the mimeographed lists was a handwritten list of men on the "extra list" who were called as needed. All these records were maintained in ledger books on the second floor of the yard office at Colehour Yard. The records were available for inspection by individual employees who desired to check them. In addition to these crew sheets, and the more frequent mode of obtaining information on their status, the employees kept themselves advised of their status by telephone calls to the crew dispatchers or clerks assigned to Colehour Yard. Moreover, the calling of crews for assignments was done by telephone by the crew dispatcher or clerks.

In the latter part of 1968, the railroad made the disputed change in the crew calling function. The change consisted, primarily, of discontinuing the use of the mimeographed and handwritten crew sheets and substituting in their stead computer print-out lists showing the standing of crews and extra men. The crew dispatcher's function at Colehour was consolidated with that of the crew dispatcher's at the 59th St. Yard in Chicago, the principal center of crew dispatching activities for the Chicago area. At the Colehour Yard the print-out sheets were posted three times a day prior to the change of shifts, the information emanating from the 59th St. Yard. The "print-out" sheets purportedly contained the same information as the former crew sheets, namely, a list of regular assignments, a list of extra men and information as to where the extra men worked. As before, the employees at the Colehour Yard could contact the crew dispatcher at the 59th St. Yard by telephone to be advised on their standing, and this method continued to be the primary way in which the employees kept current as to their status.

The effective date of the changeover in crew calling functions was February 1, 1969. Following the changeover, union officials complained orally on various occasions about the manner in which the crew calling function was being handled at Colehour. Various complaints were registered by the union about the adequacy of information being posted and the timeliness of the postings. At no time, however, were steps taken by the union to process the alleged violation of section 8-B-1 through the established grievance procedure. Two and a half years later, on July 2, 1971, the union filed its complaint in the district court seeking injunctive relief, requesting that the crew calling function be reverted to its previous form prior to February 1, 1969. The union grounded its claim for relief on the contention that the substitution of print-out sheets represented a unilateral change by the railroad of the terms of their collective bargaining agreement with the union plaintiff and created as such a major dispute.

II

The fundamental inquiry in deciding whether to assume jurisdiction to grant injunctive relief is not to interpret the contract; rather, the court must decide whether the asserted contractual defense is frivolous.

Various tests have been applied by the courts as an aid to determining whether a major or minor dispute is present. In United Transportation U. v. Burlington Northern, Inc., 458 F.2d 354, 357 (8th Cir. 1972), the Eighth Circuit declared that, "the test to be applied is that if the contract is reasonably susceptible to the interpretation sought by both the carrier and the union, the dispute is minor and within exclusive adjustment jurisdiction. . . ." The United States Court of Appeals for the First Circuit in Airlines Stewards & S. Ass'n, Local 550 v. Caribbean Atl. A., Inc., 412 F.2d 289, 291 (1st Cir. 1969), quoted with approval the test enunciated by the District of Columbia Circuit in Southern Ry. Co. v. Brotherhood of Locomotive Fire & Eng., 127 U.S.App.D.C. 371, 384 F.2d 323, 327 (1967):

We think that, where 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.

In Switchmen's Union of North America v. Southern Pacific Co., 398 F.2d 443, 447 (9th Cir. 1968), the Ninth Circuit stated the test in the negative:

It is true, as the union points out, that a controversy, although couched in terms of a disagreement as to interpretation of a contract, may under some circumstances be regarded as a major dispute. This result may be reached if it can be said that the change being imposed by one side on the other is in nowise contemplated or arguably covered by the agreements.

Analyzed in the light of any of these tests it is apparent that the railroad's contractual defense, namely, that the substitution of print-outs for the prior system of crew calling was in compliance with section 8-B-1 of the parties' collective bargaining agreement, is not frivolous and that this dispute involves nothing more than a minor dispute, a dispute as to the interpretation and application of the existing agreement.

The agreement between the parties as to the nature of crew boards was framed in quite general terms:

Rule 8-B-1. Crew boards. Crew boards showing the order in which crews are to go out shall be maintained . . . .

Nothing was stated in the agreement as to the specific nature and substance of a crew board. Prior to the substitution of print-outs the crew board at Colehour was nothing more than a bounded ledger book of mimeographed and handwritten sheets kept on the second floor of the yard house. Can it be said that the railroad's change to print-outs was not contemplated or arguably covered by the agreement? Is the railroad's contention that the print-outs are crew boards within the terms of section 8-B-1 so strained that it can be said that 8-B-1 cannot be reasonably susceptible to that...