745 F.2d 370 (6th Cir. 1984), 83-3496, Brotherhood Ry. Carmen of United States and Canada, AFL-CIO-CLC v. Norfolk and Western Ry. Co.

Docket Nº83-3496.
Citation745 F.2d 370
Party NameBROTHERHOOD RAILWAY CARMEN OF the UNITED STATES AND CANADA, AFL-CIO-CLC, Plaintiff-Appellant, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellee.
Case DateOctober 04, 1984
CourtUnited States Courts of Appeals, Court of Appeals for the Sixth Circuit

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745 F.2d 370 (6th Cir. 1984)

BROTHERHOOD RAILWAY CARMEN OF the UNITED STATES AND CANADA,

AFL-CIO-CLC, Plaintiff-Appellant,

v.

NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellee.

No. 83-3496.

United States Court of Appeals, Sixth Circuit

October 4, 1984

Argued Aug. 1, 1984.

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Harold A. Ross, Ross & Kraushaar Co., L.P.A., Cleveland, Ohio, Newton G. McCoy (argued), Friedman, Weitzman & Friedman, P.C., St. Louis, Mo., for plaintiff-appellant.

Robert G. Boes, Arter & Hadden, Cleveland, Ohio, William B. Poff (argued), Woods, Rogers, Muse, Walker & Thornton, Roanoke, Va., for defendant-appellee.

Before KEITH and CONTIE, Circuit Judges, and BROWN, Senior Circuit Judge.

CONTIE, Circuit Judge.

The Brotherhood of Railway Carmen of the United States and Canada appeals the district court's dismissal of its complaint. The Carmen had sought to enjoin the defendant Norfolk & Western Railway Company from ceasing to pay "checking in and out pay" before exhausting the negotiation and mediation procedures of section 6 of the Railway Labor Act, 45 U.S.C. Sec. 156. The Carmen alleged that Norfolk & Western's action is a unilateral change in rates of pay, rules or working conditions and that this case therefore presents a "major" dispute within the district court's injunctive powers. The district court held that Norfolk & Western's action is arguably sanctioned by the existing collective bargaining agreements and that this case therefore involved a "minor" dispute within the exclusive jurisdiction of the National Railroad Adjustment Board under section 3 of the Act, 45 U.S.C. Sec. 153. The district court therefore dismissed the action. We affirm.

I.

Norfolk & Western, in the course of acquiring and merging with other railroad companies, has bound itself to several collective bargaining agreements previously negotiated between the Carmen and the predecessor railroad companies. Three agreements, commonly known as the Norfolk & Western agreement, the Virginian agreement and the Nickle Plate agreement 1 are involved in this case. Under each agreement, Norfolk & Western has paid certain of its employees for checking in and checking out. According to the terms of the agreements, this task was to be performed on the employees' own time, several minutes before and after the actual

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hours of their shifts. Rule 51 of the Norfolk & Western agreement provides:

Employees required to check in and out and make out service cards on their own time, will be allowed one (1) hour at straight-time rate for each pay-roll period, provided they have worked twenty-four (24) hours during the payroll period.

Rule 47 of the Virginian agreement provides:

At the close of each week one (1) minute for each hour actually worked during the week will be allowed employes for checking in and out.

Finally, Rule 51 of the Nickle Plate agreement provides:

Effective as of September 1, 1949, employees will be allowed one and two-tenths cents for each hour actually worked for checking in and out and making out service cards. The practice of employes checking in and out on their own time will be continued.

By a notice dated May 16, 1983, Norfolk & Western made the following announcement to its employees:

Effective May 24, 1983, employes will not be required to register on and off duty on their own time. Payments previously received in consideration for this service, commonly known as "checking in and out" pay, will also be discontinued.

Although agreements to pay railroad employees for checking in and out on their own time are rooted in the distant past, 2 the general contours of the practice, as it traditionally has been used, are relatively clear. The railroads originally had time clocks at which employees had to pick up a card and have it time-stamped. It naturally took some time for all employees in one shop to complete this process. The railroads, wanting their employees to be at their work stations and actually working during the full time of their shift, began requiring their employees to check in before the start of the working day and check out after their shifts ended. Railroad employees responded by successfully demanding to be paid for this extra time the railroads required of them.

Over time, Norfolk & Western streamlined the process for reporting to work and employees eventually had to do less in order to check in and check out. Thus, in more recent times, an employee merely had to sign a time slip before the beginning of the day and give it to his supervisor, who filled out the hours the employee had worked, after the end of the day. In 1976, Norfolk & Western advanced even further by installing a computer system to monitor its employees' hours and the company's payroll accounting. The time slips were still used, however, as a means of auditing the results generated by the computer system. An official of Norfolk & Western testified that the company did not have sufficient confidence in the computer system to dispense with the time slips until May 1983. Nonetheless, he admitted that, with the benefit of hindsight, he now believes that time slips were unnecessary as early as 1977 or 1978. The witness testified that under the system initiated on May 24, 1983 the employees are not required to perform any act in order to report for work or to report their hours. The computer system has an internal auditing program and further auditing is provided by the employees' field supervisors.

The Carmen have contended that Norfolk & Western's action is a unilateral change in the "rates of pay, rules, or working conditions" within the meaning of section 6 of the Act and sought an injunction to restrain Norfolk & Western from implementing its proposed change until after the procedural requirements of that section have been completed. 3 The Carmen filed the

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instant action on May 23, 1983 in an attempt to stop this proposed action with a status quo injunction. On May 27, 1983, following a hearing, the district court denied the Carmen's request for a temporary restraining order. A hearing on the request for a preliminary injunction and on Norfolk & Western's motion to dismiss was held on June 3, 1983. At the conclusion of the hearing, the district court issued an oral ruling that the dispute was "minor" and therefore within the exclusive jurisdiction of the National Railroad Adjustment Board. 4 A written memorandum opinion and order, filed June 10, 1983, formalized the court's oral ruling.

II.

In order to put this case in perspective, a brief review of the Railway Labor Act is necessary. Under the Act, disputes between railroads and their employees fall into two "sharply distinguished" categories. See Elgin, Joliet & Eastern Railway v. Burley, 325 U.S. 711, 722, 65 S.Ct. 1282, 1289, 89 L.Ed. 1886 (1945), aff'd on rehearing, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928 (1946). The first category, by tradition known as "minor" disputes,

contemplates the existence of a collective agreement already concluded or ... 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 either case the claim is to rights accrued, not merely to have new ones created for the future.

Id., 325 U.S., at 723, 65 S.Ct., at 1290. In contrast, the second category, known as "major" disputes,

relates to disputes over the formation of collective agreements or efforts to secure them. They arise where there 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 controls the controversy. They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.

Id. The distinction between minor and major disputes has important procedural consequences.

Generally, major disputes are "left for settlement entirely to the process of noncomulsory adjustment." Id. at 724, 65 S.Ct. at 1290. A detailed procedure is provided in 45 U.S.C. Secs. 152, 155, 156, 157 and 160 for moving the dispute through initial conference and negotiation, submission to the National Mediation Board, voluntary arbitration and, possibly, investigation by a special emergency board appointed by the President. See Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378, 89 S.Ct. 1109,

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1115, 22 L.Ed.2d 344 (1969). 5 The entire process of resolving major disputes entails only conciliation, mediation, and induced negotiation. "[C]ompulsions go only to insure that those procedures are exhausted before resort can be had to self-help. No authority is empowered to decide the dispute and no such power is intended, unless the parties themselves agree to arbitration." Burley, 325 U.S. at 725, 65 S.Ct. at 1291. Thus, as to major disputes, the only form of restraint in the Act is the prohibition against unilateral action on the subject of the major dispute pending the exhaustion of the Act's procedures. See 45 U.S.C. Secs. 152 (seventh), 156; Detroit & Toledo Shore Line Railroad v. United Transportation Union, 396 U.S. 142, 149, 90 S.Ct. 294, 298, 24 L.Ed.2d 325 (1969). The duty to uphold the status quo may be enforced by obtaining injunctive relief in a federal district court. See United Transportation Union v. Penn Central Transportation Co., 505 F.2d 542, 543 (3d Cir.1974) (per curiam); United Transportation Union v. Baker, 499 F.2d 727, 728 (7th Cir.), cert. denied, 419 U.S. 839, 95 S.Ct. 69, 42 L.Ed.2d 66 (1974).

In contrast to major disputes, minor disputes under the Act are subject to compulsory and binding arbitration. See 45 U.S.C. Sec. 153(first) (i). This task is performed, upon the request of one of the parties, by the National...

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