Local 1477 United Transportation Union v. Baker, 72-1478.

• Decision Date: 21 June 1973
• Docket Number: No. 72-1478.,72-1478.
• Citation: 482 F.2d 228
• Parties: LOCAL 1477 UNITED TRANSPORTATION UNION and Lodge 666 United Transportation Union, Plaintiffs-Appellees, v. George P. BAKER et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

482 F.2d 228 (1973)

LOCAL 1477 UNITED TRANSPORTATION UNION and Lodge 666 United Transportation Union, Plaintiffs-Appellees, v. George P. BAKER et al., Defendants-Appellants.

No. 72-1478.

United States Court of Appeals, Sixth Circuit.

Argued November 27, 1972.

Decided June 21, 1973.

Patrick E. Hackett, Detroit, Mich., for defendants-appellants.

Ernest Goodman, Detroit, Mich., for plaintiffs-appellees; Goodman, Eden, Millender, Goodman & Bedrosian, Ernest Goodman, Detroit, Mich., on brief.

Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and HASTIE^*, Senior Circuit Judge.

HASTIE, Circuit Judge.

The trustees of Penn Central Transportation Co., a common carrier by railroad, have taken this appeal from an order of the District Court for the Eastern District of Michigan, Southern Division, that permanently enjoined the railroad from disciplining employees who elect to absent themselves from work frequently without justifying reason, so long as they shall work at least one day a month and there are sufficient employees available on a reserve or parttime list to fill all work assignments. The district court prefaced its injunction with a jurisdictional finding that the matter in controversy was justiciable as a "major dispute" within the intendment of the Railway Labor Act, 45 U.S.C. ch. 8. The correctness of that jurisdictional finding and the judicial action to which it led are disputed on this appeal.

The rights and obligations of the railroad and its employees who are involved in this case are controlled by a collective bargaining agreement between the railroad and the plaintiff unions and by mutually recognized "Railroad Rules for Conducting Transportation". Section 61 of Article 26 of the firemen's labor contract and Rule 26 of the trainmen's contract both specify that employees "may have 30 days layoff on receipt of permission from proper official without written leave of absence". General Rule T of the Rules for Conducting Transportation requires that "employees must report for duty at the required time" and that "no employee will be allowed to absent himself from duty without proper authority. . . ." There is also a general provision that the "service demands the faithful . . . discharge of duty".

Employees are classified as "regular" or "extra". For a regular employee the railroad guarantees employment on a scheduled shift for a five day work week. Employees on the "extra" list are guaranteed the opportunity to work four out of every seven working days. General Rule 8 provides that "regular men will be permitted to lay off when extra men are available". Section 35 of the firemen's contract provides that "extra" employees who lay off when they are called shall be moved to the bottom of the list of available "extras".

The district court gave the parties a full hearing at which it appeared that over the years numbers of men, regular and extra, had absented themselves without justifying reason with such frequency that they put in only a small fraction of the normal work time guaranteed them. It also appeared that for years the railroad tolerated this, though from time to time it had complained to the union of improper and excessive "marking off" (notifying a supervisor that the employee does not choose to work). However, in recent years, the issue has become sharply drawn, with the employer insisting that the contract and rules contemplate and require work with some degree of regularity subject to absence with permission and for good cause, while the union contends that an employee has the right of lay off at will without penalty, so long as he shall work at least one day in thirty and an "extra" is available to take his place. This suit was filed when the railroad threatened to discipline particular employees who were said to have absented themselves very frequently without justification.

The answer to the jurisdictional question in this case depends upon the application of a recognized distinction that governs the administration of the Railway Labor Act. Under that Act, the courts have classified disputes as either "major" or "minor". In the leading case of Elgin J. & E. Ry. v. Burley, 1945, 325 U.S. 711, 723, 65 S.Ct. 1282, 1290, 89 L.Ed. 1886, the Supreme Court described major disputes as those "over the formation of collective agreements or efforts to secure them. They arise where there is no agreement or where it is sought to change the terms of one. . . ." The Court then contrasted those minor disputes "in which no effort is made to bring about a formal change in terms or create a new . . . agreement, but rather 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". Recognizing that distinction, this court has said: "A `major dispute', as that phrase is known in the parlance of the Railway Labor Act, results when there is a disagreement in the bargaining process for a new contract. A `minor' dispute is a controversy over the meaning of an existing collective bargaining agreement in a particular fact situation." Brotherhood of Railway Trainmen v. New York Central R.R., 6th Cir. 1957, 246 P.2d 114, 118, cert. denied, 355 U.S. 877, 78 S.Ct. 140, 2 L.Ed. 2d 107.

If a dispute is minor and the parties are unable to resolve it through negotiation or prescribed grievance procedures, the National Railroad Adjustment Board then has primary and exclusive jurisdiction under section 3 of the Railway Labor Act, 45 U.S.C. § 153, to interpret the agreement of the parties and make an appropriate award. Order of Rail Conductors v. Pitney, 1945, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318; Slocum v. Delaware L. & W. R. Co., 1950, 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795; Brotherhood...