Maine Cent. R. Co. v. United Transp. Union, 86-1037

• Citation: 787 F.2d 780
• Decision Date: 22 May 1986
• Docket Number: No. 86-1037,86-1037
• Parties: 122 L.R.R.M. (BNA) 2017, 104 Lab.Cas. P 11,862 MAINE CENTRAL RAILROAD COMPANY, Portland Terminal Company, and Guilford Transportation Industries, Inc., Appellants, v. UNITED TRANSPORTATION UNION and Brotherhood of Maintenance of Way Employees, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 780

787 F.2d 780

122 L.R.R.M. (BNA) 2017, 104 Lab.Cas. P 11,862

MAINE CENTRAL RAILROAD COMPANY, Portland Terminal Company, and Guilford Transportation Industries, Inc., Appellants, v. UNITED TRANSPORTATION UNION and Brotherhood of Maintenance

of Way Employees, et al., Appellees.

No. 86-1037.

United States Court of Appeals, First Circuit.

Argued Feb. 5, 1986.

Decided April 9, 1986.

Rehearing and Rehearing En Banc Denied May 22, 1986.

Stephen M. Olson, with whom David J. Strasser, James E. Howard and Kirkpatrick & Lockhart, Pittsburgh, Pa., were on brief, for appellants.

Clinton J. Miller, III, Washington, D.C., for United Transp. Union.

Louis P. Malone, III, General Counsel, Washington, D.C., with whom Craig J. Rancourt, Biddeford, Me., was on brief, for Broth. of Maintenance of Way Employees.

Before COFFIN and ALDRICH, Circuit Judges, and PETTINE, ^* Senior District Judge.

BAILEY ALDRICH, Senior Circuit Judge.

This case originally came before us on a motion for stay pending appeal of a permanent injunction against Maine Central Railroad (MEC), Portland Terminal Company, and Guilford Transportation Industries. After argument, on our being informed that the record was complete, and seeing no purpose served by giving the parties a second bite at the apple, we continued our interim stay and ordered final briefing preparatory to full disposition. The parties having supplemented their initial briefs, we turn to the appeal on the merits.

Briefly, the facts are these. MEC has a customer at Rumford, Maine, Boise Cascade Corporation (Boise), engaged in manufacturing paper, requiring heavy traffic. Much of this is handled by MEC, which owns track and conducts switching operations at the Rumford Mill. MEC employed United Transportation Union (UTU) and Brotherhood of Maintenance Way Employees (BMWE) to perform these operations. On October 1, 1985, apparently because of Boise's expressed dissatisfaction with MEC's switching, MEC leased the Rumford Yard trackage to Boise, with an option to Boise to conduct the switching and maintenance operations with its own employees. Boise notified MEC of its intention to exercise the option commencing November 13, 1985. The unions, objecting to the loss of employment, threatened to strike. MEC brought suit in the district court seeking a temporary restraining order and, ultimately, an injunction. The court issued the former on November 12, 1985, which, by agreement, was continued without day. All MEC employees at the Rumford Yard were replaced by Boise employees, and were shifted to other, but perhaps poorer, positions. After the ripples of seniority bumping smoothed out, nine other UTU trainmen--no BMWE members--were displaced.

Hearings on a permanent injunction were held before a second judge on January 9 and 14, 1986. An injunction resulted, but the other way around, in favor of the unions, with MEC

enjoined from violating the status quo provisions of the Railway Labor Act (45 U.S.C. Sec. 152, First, Seventh and Sec. 156, [sic] by permitting or continuing to permit switching operations and maintenance of its Rumford Yard to be performed by persons other than those represented by [UTU] and [BMWE]; and it is

FURTHER ORDERED that MEC and Portland Terminal Company forthwith return the relationship between the parties in respect to the manning of the Rumford Yard to the status quo as of November 12, 1985....

This order was stayed pending appeal; consequently Boise employees are presently servicing the yard.

The question here, as below, turns on the nature of the dispute. A "minor" dispute, viz., one over interpretation and application of the union contract, is to be negotiated by the parties, and, failing resolution, submitted to the National Railroad Adjustment Board for binding arbitration. 45 U.S.C. Sec. 153, First; see Elgin, J. & E. Ry. v. Burley, 325 U.S. 711, 727, 65 S.Ct. 1282, 1292, 89 L.Ed. 1886 (1945). In the meantime, the railroad is free to apply its interpretation, and may, notwithstanding the Norris-LaGuardia Act, obtain an injunction against striking. Brotherhood of Railroad Trainmen v. Chicago River & Indiana R.R., 353 U.S. 30, 40-42, 77 S.Ct. 635, 640-41, 1 L.Ed.2d 622 (1957). A so-called "major" dispute, viz., one involving not an existing agreement, but "the acquisition of rights for the future," Elgin, ante, 325 U.S. at 723, 65 S.Ct. at 1290, is first negotiated, and, if negotiation fails, is sent to mediation under the National Mediation Board, 45 U.S.C. Sec. 156. Failing resolution here, there are various other forms of noncompulsory adjustment. Elgin, ante, 325 U.S. at 725, 65 S.Ct. at 1290-91. Either party, requesting such processing of a "major" dispute by proper notice under 45 U.S.C. Sec. 152, Sixth, is entitled to a "status quo" injunction. Detroit & Toledo Shore Line R.R. v. United Transp. Union, 396 U.S. 142, 155, 90 S.Ct. 294, 302, 24 L.Ed.2d 325 (1969). Thus, as evidenced by the two orders issued below, depending on the characterization of the dispute, one party or the other will be entitled to a favorable injunction.

UTU and BMWE argued successfully before the second judge, hereinafter the court, that MEC's abolition of all positions at Rumford was an attempt to acquire a set of totally new "rights for the future," which must be processed as a major dispute before it can be effected. See Carbone v. Meserve, 645 F.2d 96, 98 (1st Cir.1981), cert. denied, 454 U.S. 859, 102 S.Ct. 312, 70 L.Ed.2d 156. The court found, and appellants do not dispute, that "[T]he contract language ... does not apply ..., either to expressly or by reasonable implication, authorize or prohibit [the lease arrangement and resulting job abolishment]." We do not rest our decision on MEC's initial contention that, because the contract was silent, its action was a management decision. Rather, we turn to the alternative, that past practices and working conditions may become part of the collective bargaining agreement notwithstanding silence in the agreement itself. See Detroit & Toledo Shore Line, ante, 396 U.S. at 154-44, 90 S.Ct. at 301-02.

Appellants point to three previous, accepted actions, which they claim support the present one. The court disagreed: "None of the three instances ... is sufficiently parallel to the Boise Cascade lease arrangement and the job abolishment to establish that the type of transaction ... has been previously treated by either of the parties as governed by the existing contract arrangement...." In so finding, the court accepted appellees' argument that each of these instances was distinguishable from the one at issue. We read this resolution, however, as exceeding its authority.

Ours and, we believe, the majority view, is that the court's role is limited to determining whether MEC's assertion is "even 'arguable.' " Carbone, ante, 645 F.2d at 99. If MEC presented instances of past practice accepted by the unions which, arguably, could support its contention, the court's inquiry must end; it is not for it to weigh, and decide who has the better of the argument. If the court did this, it overstepped its bounds and usurped the arbitrator's function. See id., 645 F.2d at 100; Airline Stewards & Stewardesses Ass'n. v. Caribbean Atlantic Airlines, 412 F.2d 289, 291 (1st Cir.1969). We find that, in fact, this is what it did.

In each of the three instances relied on by appellants MEC leased track to another party, who then assumed all operations. The direct result, as here, was the abolition, or reduction, of all MEC jobs on the track. Appellees, and the court below, would distinguish these instances as follows: the first, a lease of track to Carter Milling, because it represented a recapture of work within the fence, well established...