Carbone v. Meserve
| Decision Date | 10 April 1981 |
| Docket Number | No. 80-1754,80-1754 |
| Citation | 645 F.2d 96 |
| Parties | 107 L.R.R.M. (BNA) 2204, 91 Lab.Cas. P 12,706 Peter S. CARBONE et al., Plaintiffs, Appellees, v. Robert W. MESERVE et al., Defendants, Appellants. |
| Court | U.S. Court of Appeals — First Circuit |
William F. Sheehan, Washington, D. C., with whom Sidney Weinberg, Boston, Mass., Ralph J. Moore, Jr., Patrick M. Hanlon, and Shea & Gardner, Washington, D. C., were on brief, for defendants, appellants.
James F. Freeley, Jr., with whom John E. Sheehy, and Feeney & Freeley, Boston, Mass., were on brief, for plaintiffs, appellees.
Before ALDRICH and WINTER, * Circuit Judges, WYZANSKI, ** District Judge.
On April 6, 1979 the Trustees of Boston and Maine Corporation, Debtor (hereinafter the railroad) withdrew a complement of crew dispatchers then located at the railroad's Mechanicville, New York terminal. These dispatchers had maintained a "spare board," a sheet that listed openings for irregular assignments, and the employees in line for those openings. The withdrawn dispatchers were consolidated with a dispatching crew in East Deerfield, Massachusetts, thus reducing the total number, at a considerable saving. There they produced a Mechanicville spare board, which was reproduced at Mechanicville by a telecopying device known as Rapifax. Most Mechanicville spare board members live in the vicinity, but three WATS lines were also supplied, enabling employees to reach their crew dispatcher in East Deerfield by telephone, toll free, from their homes, or anywhere in New York or New England. Claiming that this changeover constituted a breach of its collective bargaining agreement, and a "major" dispute, the United Transportation Union 1 instituted the present action and, in due course, obtained a preliminary injunction requiring the railroad to reestablish the crew dispatchers at the Mechanicville terminal. In connection with the railroad's appeal we granted its motion for a stay of the injunction. We now reverse, and order the injunction dissolved.
Spare board members are railroad employees who have no regular crew assignments, or who seek work on their days off. Assignments are made on a rotation basis, with employees who have worked most recently being placed at the bottom of the list, to progress upward as assignments are filled, subject to certain seniority rights. If an employee at the top of the list cannot be reached within a reasonable time he is penalized by being taken off the list for 16 hours and then placed at the bottom. Hence it is important for employees to be kept informed at all times. It also appears that mistakes are made, and that employees must be able to make inquiries and see to it, if there are mistakes, that they are corrected.
The basis for this case begins with the railroad's letter of February 11, 1959, written as the result of a settlement of a "major" dispute, 2 containing the following.
By letter dated November 24, 1970, the parties made a further agreement.
Following the dispatchers' withdrawal on April 6, 1979, the parties being unable to come to terms, the union brought this suit, and on March 5, 1980, at the conclusion of a hearing, the court announced its intention from the bench to grant the injunction. 3 The railroad moved for reconsideration, and that it be allowed to substitute a video spare board to meet certain criticisms that had been advanced against the telecopier. This motion was denied, and in due course the preliminary injunction was entered.
The initial, and dispositive, question is jurisdictional. The Railway Labor Act, 45 U.S.C. §§ 151 et seq., divides disputes into two classes. A "major" dispute relates to the formation or modification of the collective agreement "the acquisition of rights for the future," Elgin, J. & E. Ry. v. Burley, 1945, 325 U.S. 711, 723, 65 S.Ct. 1282, 1289, 89 L.Ed. 1886 and falls under section 6 of the Act. 45 U.S.C. § 156; see generally Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 1969, 394 U.S. 369, 378, 89 S.Ct. 1109, 1115, 22 L.Ed.2d 344. A district court may enjoin either party from altering the status quo during the course of the proceedings, with no showing of irreparable harm. Detroit & Toledo Shore Line RR. v. United Transportation Union, 1969, 396 U.S. 142, 90 S.Ct. 294, 24 L.Ed.2d 325; United Transportation Union v. Burlington Northern, Inc., 8 Cir., 1972, 458 F.2d 354, 357.
A "minor" dispute, on the other hand, contemplates an existing agreement, and relates "to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case." Elgin, J. & E. Ry., ante, 325 U.S. at 723, 65 S.Ct. at 1289. Such are entrusted exclusively to arbitration by the National Railroad Adjustment Board at the option of either party, or by system, group or regional board with the consent of both. 45 U.S.C. § 153. No injunction may issue without the traditional showing of irreparable harm. Order of Railway Conductors v. Pitney, 1946, 326 U.S. 561, 567, 66 S.Ct. 322, 325, 90 L.Ed. 318; United Transportation Union v. Burlington Northern, Inc., ante, 458 F.2d at 357.
The question, accordingly, is whether the withdrawal of the Mechanicville dispatchers was, as the union contends, a "unilateral action ... without any basis in the contract," or, as the railroad asserts, an action warranted by the contract. If it is even "arguable" that it was the latter, see REA Express, Inc. v. Brotherhood of Railway, Airline etc. Employees, 5 Cir., 1972, 459 F.2d 226, 231, cert. denied, 409 U.S. 892, 93 S.Ct. 115, 34 L.Ed.2d 149 it is a "minor" dispute.
Airlines Stewards & Stewardesses Ass'n v. Caribbean Atlantic Airlines, Inc., 1 Cir., 1969, 412 F.2d 289, 291 (citation omitted), quoting Southern Ry. v. Brotherhood of Locomotive Firemen, D.C. Cir., 1967, 384 F.2d 323, 327.
The initial difficulty, as it later conceded, was that the court made its March 5 ruling without reference to the Airlines Stewards limitation on its power of resolution. The railroad contended that whereas the 1959 agreement spoke in terms of withdrawal of "Crew Dispatchers" while the 1970 agreement referred to the merger of "crew dispatching facilities" and the maintenance of a separate "facility" at...
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...v. Boston & Maine Corp., 788 F.2d 794 (1st Cir.1986), cert. denied, 479 U.S. 829, 107 S.Ct. 111, 93 L.Ed.2d 59 (1986); Carbone v. Meserve, 645 F.2d 96 (1st Cir.), cert. denied, 454 U.S. 859, 102 S.Ct. 312, 70 L.Ed.2d 156 (1981). That Circuit has pointed to the strong presumption that a mino......
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