Butte, Anaconda & P. Ry. Co. v. BROTHERHOOD OF LF & E.

• Citation: 268 F.2d 54
• Decision Date: 18 May 1959
• Docket Number: No. 16372.,16372.
• Parties: BUTTE, ANACONDA & PACIFIC RAILWAY COMPANY, a corporation, Appellant, v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, a voluntary labor association; Frank W. Glass, individually and as Vice President of the Brotherhood of Locomotive Firemen and Enginemen; J. H. McCarvel, individually and as General Chairman of the Brotherhood of Locomotive Firemen and Enginemen; Brotherhood of Railroad Trainmen, a voluntary labor association; H. E. Nevala, individually and as Deputy President of the Brotherhood of Railroad Trainmen; and R. R. McLean, individually and as General Chairman of the Brotherhood of Railroad Trainmen, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

268 F.2d 54 (1959)

BUTTE, ANACONDA & PACIFIC RAILWAY COMPANY, a corporation, Appellant, v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, a voluntary labor association; Frank W. Glass, individually and as Vice President of the Brotherhood of Locomotive Firemen and Enginemen; J. H. McCarvel, individually and as General Chairman of the Brotherhood of Locomotive Firemen and Enginemen; Brotherhood of Railroad Trainmen, a voluntary labor association; H. E. Nevala, individually and as Deputy President of the Brotherhood of Railroad Trainmen; and R. R. McLean, individually and as General Chairman of the Brotherhood of Railroad Trainmen, Appellees.

No. 16372.

United States Court of Appeals Ninth Circuit.

May 18, 1959.

R. Lewis Brown, Jr., J. B. Woodlief, P. L. MacDonald, W. M. Kirkpatrick, Butte, Mont., for appellant.

David L. Holland, E. J. Foley, Butte, Mont., Harold C. Heiss, Cleveland, Ohio, for appellees.

Nathan Witt, New York City, amicus curiæ for International Union of Mine, Mill & Smelter Workers, and Locals Nos. 1, 16, and 17 of said International.

Before BARNES, HAMLEY, and JERTBERG, Circuit Judges.

HAMLEY, Circuit Judge.

This action was brought by Butte, Anaconda & Pacific Railway Company to enjoin defendant Brotherhoods from calling a strike. The district court after hearing entered a judgment dismissing the action. The court's findings of fact, conclusions of law, and supporting opinion are reported in 168 F.Supp. 911. Plaintiff appeals.¹

The principal questions presented here involve aspects of the Railway Labor Act, 45 U.S.C.A. § 151 et seq. They are: (1) Whether the controversy was a major or minor dispute under that act; (2) whether the dispute and resultant mediation proceedings had been terminated; and (3) whether during the pendency of the mediation proceedings appellant failed to preserve the status quo, as required by section 6 of the act, 45 U.S.C.A. § 156.

Appellant operates a railroad in Montana, hauling freight as a common carrier engaged in interstate commerce. It is a wholly-owned subsidiary of Anaconda, and both corporations are managed by the same staff of officers from president down to secretary-treasurer. All major policy decisions are made for appellant by officers who are also officers of Anaconda. In making such decisions the controlling consideration is the ultimate effect which the decisions will have on the profits earned by Anaconda.

Anaconda owns and, since 1956, has operated an open pit copper mine at Butte, Montana, known as the Berkeley Pit. Prior to March 14, 1958, the ore from this pit was loaded in appellant's ore cars at a loading yard known as the old Berkeley Yard. The work of switching ore cars in the old Berkeley Yard and between that yard and the West Butte Yard was performed by yard crews of appellant. The men in these crews were members of appellee Brotherhoods, and performed such work pursuant to agreements between the railroad and the Brotherhoods. Under these agreements each yard crew which performed switching service consisted of five men.

Prior to March 14, 1958, a new loading and switching yard, commonly referred to as the new Berkeley Yard, was constructed for Anaconda to serve the Berkeley Pit. Anaconda ascertained that its employees, represented by International Union, were willing to do the switching at the new Berkeley Yard on a three-man-crew basis. It therefore decided to do its own switching when the new Berkeley Yard was put in operation. However, the then manager of appellant obtained permission from Anaconda to explore the possibility of having the switching done by the railroad's employees on as economical a basis as it could be done by Anaconda. If this were found to be possible, then Anaconda would continue to contract this switching to appellant as it was then doing at the old Berkeley Yard.

With this purpose in mind, appellant on September 27, 1957, served upon appellee Brotherhoods a so-called section 6 notice under the Railway Labor Act.² In this notice appellant proposed an amendment of the existing agreements between it and the Brotherhoods to permit the loading of ore in the new Berkeley Yard with main line crews instead of yard crews. Appellee Brotherhoods rejected this proposal. Appellant then served another section 6 notice in which it was proposed that the existing agreements be amended to provide that the yard crews in the new Berkeley Yard consist of three men rather than five men.

Appellee Brotherhoods declined to agree to such an amendment. On October 25, 1957, they invoked the mediation services of the National Mediation Board. The Board docketed this dispute as Mediation Case No. A-5623. A mediator was assigned to the case by the Board and a conference of the parties under the sponsorship of the mediator was held on January 15, 1958. The Brotherhoods there indicated their continued unwillingness to accept either of the contract amendments proposed by appellant. The railroad then informed the Brotherhoods that when the new Berkeley Yard was put into operation the switching would be done by employees of Anaconda.

On January 17, 1958, appellant notified the mediator and the Brotherhoods that it was withdrawing the section 6 notices, with the intention thereby of terminating the mediation proceedings. The Brotherhoods, however, took the position that in view of appellant's announcement that Anaconda would do the switching at the new Berkeley Yard a dispute necessitating mediation continued. The Board decided to resume active mediation and advised the parties that conferences would begin on March 5, 1958. No progress was made at these conferences.

On March 7, 1958, appellant advised the Brotherhoods that the loading of ore cars in the new Berkeley Yard would commence shortly. The Brotherhoods were further advised that appellant did not consider the "status quo" provision of the Railway Labor Act as applicable to the contemplated discontinuance of switching service by appellant.³

Under the plan for service in and to the new Berkeley Yard developed by appellant and Anaconda, appellant's trains would use Northern Pacific Railroad Company tracks between Durant, Montana, and the new yard. Seeking to take advantage of this fact as a basis for bargaining, the Brotherhoods on March 8, 1958, submitted to appellant a proposed agreement. Under this proposal appellant would be required to pay substantial additional compensation to its railroad employees because of its use of Northern Pacific tracks. It was proposed that the agreement would become effective when Anaconda employees took over the switching at the new Berkeley Yard. It would continue until such switching was returned to appellant's employees represented by the Brotherhoods.⁴ Neither the Brotherhoods nor appellant gave a section 6 notice in connection with this proposed agreement.

Appellant apparently rejected the proposed agreement. On March 11, 1958, the Brotherhoods notified appellant that the latter's employees represented by the Brotherhoods would strike on March 14, 1958.⁵ On March 13, 1958, appellant sent a telegram to the National Railroad Adjustment Board calling attention to the Brotherhoods' proposal of March 8, 1958. Asserting that the latter were seeking "to impose severe penalties upon carrier," appellant asked the Adjustment Board to "accept jurisdiction and docket." On the following day the Adjustment Board advised appellant by telegram that jurisdiction could not be accepted on the basis of appellant's telegram. It would be necessary, appellant was advised, to submit the matter "in accordance with circulars one B and C." The record does not indicate that appellant thereafter perfected its submission of this matter to the Adjustment Board.⁶

On March 13, 1958, which was the same day that appellant sent its telegram to the Adjustment Board, appellant instituted this action for injunctive relief. The suit was commenced in the District Court of the Second Judicial District of Montana, in and for the County of Silver Bow. A temporary restraining order was immediately issued by the state court enjoining the Brotherhoods from carrying out their strike threat. Upon being advised of this development, the mediator ceased his efforts at mediation. However, the files in the matter before the Mediation Board remained open.

The cause was thereafter removed to the United States District Court, District of Montana, Butte Division, because of the presence of a federal question. See 28 U.S.C.A. § 1331.

In dismissing the action the district court held in effect that (1) the dispute which led to the strike threat was a "major dispute" within the meaning of the Railway Labor Act and as such had been submitted to the National Mediation Board under section 6 of that act (45 U.S.C.A. § 156); (2) appellant could not legally have reduced the number of employees per switching crew from five to three while the section 6 procedure was pending, in view of the status quo provision of that section; (3) the status quo provision was circumvented and there was accomplished indirectly what could not be accomplished directly by the act of the parent corporation, Anaconda, in taking over the switching work and employing its own employees on a three-man-crew basis; and (4) a court of equity "will not lend its weight to such purpose by making permanent the temporary restraining order heretofore issued."⁷ 168 F.Supp. 919.

Appellant contends that although a section 6 "major dispute" had been in existence it came to an end when the Brotherhoods rejected appellant's proposal, the latter withdrew its section 6 notices, and Anaconda took over the switching operation. Thereafter, appellant argues, any controversy that remained was either a so-called "minor dispute" concerning which a strike is unlawful, or was no labor dispute at all, thus escaping the sanctions of the Norris-LaGuardia Act.⁸ In the latter event, or even if the controversy be regarded as a major dispute, appellant...