Alton & Southern Lodge No. 306 Broth. Ry. Carmen of U.S. and Canada v. Alton & Southern Ry. Co., s. 87-1151

• Decision Date: 14 September 1988
• Docket Number: 87-1139,Nos. 87-1151,s. 87-1151
• Parties: 128 L.R.R.M. (BNA) 2750, 57 USLW 2028, 110 Lab.Cas. P 10,775 ALTON & SOUTHERN LODGE NO. 306 BROTHERHOOD RAILWAY CARMEN OF the UNITED STATES AND CANADA, Appellee, v. The ALTON & SOUTHERN RAILWAY CO., Appellant. ALTON & SOUTHERN LODGE NO. 306 BROTHERHOOD RAILWAY CARMEN OF the UNITED STATES AND CANADA, Appellant, v. The ALTON & SOUTHERN RAILWAY CO., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1111

849 F.2d 1111

128 L.R.R.M. (BNA) 2750, 57 USLW 2028,

110 Lab.Cas. P 10,775

ALTON & SOUTHERN LODGE NO. 306 BROTHERHOOD RAILWAY CARMEN OF

the UNITED STATES AND CANADA, Appellee, v. The ALTON & SOUTHERN RAILWAY CO., Appellant.

ALTON & SOUTHERN LODGE NO. 306 BROTHERHOOD RAILWAY CARMEN OF

the UNITED STATES AND CANADA, Appellant, v. The ALTON & SOUTHERN RAILWAY CO., Appellee.

Nos. 87-1151, 87-1139.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 13, 1987.

Decided June 21, 1988.

Rehearing and Rehearing En Banc Denied Sept. 14, 1988.

Paul C. Hetterman, St. Louis, Mo., for appellant.

Nina K. Wuestling, St. Louis, Mo., for appellee.

Before HEANEY and WOLLMAN, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge.

WOLLMAN, Circuit Judge.

Alton & Southern Lodge No. 306 (Lodge 306) appeals from the order of the district court ¹ denying its request for injunctive relief. Alton & Southern Railway Company (Alton & Southern) cross-appeals from the district court's denial as moot Alton & Southern's motion to reopen the record to admit a National Railroad Adjustment Board (NRAB) award into evidence. We affirm as to both appeals.

Lodge 306 is a labor organization composed of carmen employed by Alton & Southern. From approximately 1947 to 1983, the carmen of Lodge 306 who were assigned to the repair track worked from 7:00 a.m. to 3:00 p.m including a twenty-minute paid lunch period. On November 22, 1983, after two unsuccessful attempts to negotiate a new work schedule, Alton & Southern unilaterally changed the fourteen carmen's hours to 8:00 a.m. to 4:30 p.m., with a thirty-minute unpaid lunch period. On April 5, 1984, Lodge 306 brought a suit in Missouri state court, alleging violation of the collective bargaining agreement. Alton & Southern removed the suit to federal district court. At approximately this same time, Lodge 306 also filed similar claims with the NRAB.

The general collective bargaining agreement governing rates of pay, rules, and working conditions provides, in relevant part, as follows:

Rule 1: Eight (8) hours shall constitute a day's work, and five (5) days per week for the regular forces.

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Note: The expression[ ] * * * "work" used in this Rule refer[s] to service, duties or operations necessary to be performed * * *.

Rule 2: When one shift is employed, the starting time shall not be earlier than 7:00 a.m., nor later than 8:00 a.m. The time and length of the lunch period shall be subject to mutual agreement with the Committee.

Rule 3: When more than one shift is employed, the starting time of the first shift shall be governed by Rule 2. The starting time of the second, or the second and third shifts shall be arranged for the best interest of the work to be performed, but in no case inconsistent with the employee's welfare. Each shift shall consist of eight (8) consecutive hours, including an allowance of twenty (20) minutes for lunch within the limits of the fourth and fifth hours. When service requirements will not permit the taking of the lunch period within the fourth and fifth hours as per this rule, a penalty time of twenty (20) minutes at pro rata rate will be allowed and the employee will be allowed to procure lunch without loss of time as soon thereafter as possible.

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Rule 7: Employees assigned under the provisions of Rule 2 required to work during the lunch period will be paid for one-half hour at straight time and be allowed the necessary time to procure lunch without loss of time.

Under the Railway Labor Act, 45 U.S.C. Secs. 151 et seq. (1986), labor disputes are characterized either as major or minor. In essence, a major dispute involves the formation or alteration of a collective bargaining agreement covering pay, rules, or working conditions, while a minor dispute merely involves differing interpretations of such an agreement. See Missouri Pacific Joint Protective Bd., Bhd. Ry. Carmen of the United States and Canada, AFL-CIO v. Missouri Pacific R.R. Co., 730 F.2d 533, 536 (8th Cir.1984) (Missouri Pacific ); Indep. Fed'n of Flight Attendants v. Trans World Airlines, Inc., 655 F.2d 155, 158 (8th Cir.1981) (Flight Attendants ). In other words, a major dispute concerns one party's attempt to "acquir[e]" new "rights for the future," rather than asserting rights that arguably exist under the current agreement, as in a minor dispute. Elgin, Joliet, and Eastern Ry. v. Burley, 325 U.S. 711, 723-24, 65 S.Ct. 1282, 1289-90, 89 L.Ed. 1886 (1945), aff'd on rehearing, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928 (1946). When the surrounding circumstances are ambiguous, the courts favor construing disputes as minor. See Brotherhood of Locomotive Eng'rs v. Atchison, Topeka and Santa Fe Ry. Co., 768 F.2d 914, 920 (7th Cir.1985) (citations omitted).

If a dispute is major, the federal courts may readily issue an injunction to preserve the status quo during an ongoing labor board mediation. If the dispute is minor, however, the federal courts will only rarely issue an injunction, utilizing traditional equitable principles. Brotherhood of Maintenance of Way Employees, Lodge 16 v. Burlington Northern R.R. Co., 802 F.2d 1016, 1021-22 (8th Cir.1986) (Arnold, J., for a unanimous court) (Burlington Northern ). In addition, when the dispute is minor, one party may make small alterations in the working conditions unilaterally pending the NRAB's resolution. Id. at 1021.

The first step in determining whether a dispute is major or minor is to ascertain the content of the collective bargaining agreement. Burlington Northern, 802 F.2d at 1022. Long-standing working relationships, customs, and practices, although not reduced to writing, are to be considered as implied terms in the agreement when they have ripened into an established and recognized custom between the parties. Id. The district court found that the parties' established past practices were "clearly relevant" in determining the terms of the agreement between them, but also found that the past practices did not supply a term or condition of the working relationship between the parties that was not included within the written agreement. Alton & Southern Lodge No. 306, Bhd. Ry. Carmen of the United States and Canada v. Alton and Southern Ry. Co., 651 F.Supp. 1190, 1192-93 (E.D.Mo.1987) (Alton & Southern ). The determination of the terms of an agreement is a question of fact that may be reversed only if clearly erroneous, Brotherhood of Maintenance of Way Employees v. Chicago and Northwestern Transp. Co., 827 F.2d 330, 334 (8th Cir.1987) (Chicago and Northwestern ), and we hold that the district court's determination in this regard was not clearly erroneous.

The next question is whether the agreement is " 'reasonably susceptible' " to the interpretations sought by both parties. Flight Attendants, 655 F.2d at 158-59 (quoting United Transp. Union v. Burlington Northern, Inc., 458 F.2d 354, 357 (8th Cir.1972)). If it is, the dispute is minor. Id. Although this is a legal question that we may review de novo, Chicago and Northwestern, 827 F.2d at 334, we agree with the district court's decision on this issue and adopt its reasoning. After acknowledging the relevance of past practices to the determination of the contents of the agreement, the district court nevertheless found that the express terms of the agreement controlled the dispute. Alton & Southern, 651 F.Supp. at 1192-93 ("[t]his case * * * does not present a situation where the practice of the parties fills in for circumstances not covered by the agreement").

We agree. In the process of determining whether an agreement is reasonably susceptible to a party's proposed interpretation, or whether that interpretation is "arguably comprehended" within the agreement, see Burlington Northern, 802 F.2d at 1022, "evidence of past practice is not dispositive in the face of contrary indications from the agreements' language." Brotherhood of Ry. Carmen of the United States and Canada, AFL-CIO-CLC v. Norfolk and Western Ry. Co., 745 F.2d 370, 377 (6th Cir.1984); see Railway Labor Executives Ass'n v. Norfolk and Western Ry. Co., 833 F.2d 700, 705 n. 4 (7th Cir.1987) ("parties cannot use evidence of past practices to contradict the explicit language of their written agreement in an effort to change the characterization of a dispute as either major or minor"); Air Line Pilots Ass'n v. Trans World Airlines, 713 F.2d 940, 948 (2d Cir.1983) ("when there is a 'clearly governing provision in the present agreements,' [the court] need not range beyond the interpretation of the language of the agreement") (citation omitted), aff'd in part rev'd in part sub nom. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985). ²

The terms of the agreement for a single shift cover starting time, see Rule 2 ("starting time shall not be earlier than 7:00 a.m., nor later than 8:00 a.m."), the time and duration of lunch, see id. ("[t]he time and length of the lunch period shall be subject to mutual agreement with the Committee"), and for what activities the employees will be paid. See Rule 1 (employees must perform necessary service or duties for eight hours each day). We agree with the district court that in the light of these express provisions, evidence of past practices is not controlling.

Alton & Southern's interpretation that it may change the starting time to 8:00 a.m. is at least arguably comprehended within Rule 2. Lodge 306 does not contest this point. Rule 2 also expressly provides that the time and length of the lunch period "shall be subject to mutual agreement with the Committee." Alton & Southern complied with this provision, twice attempting to negotiate a new agreement before exercising its right to effect a unilateral change during the resolution of the minor dispute. See Burlington Northern, 802 F.2d at 1021. Similarly, the terms of the agreement also arguably comprehend Alton & Southern's interpretation of the issue of payment for...