Missouri Pacific R. Co. v. United Transp. Union

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: Before BRIGHT, Senior Circuit Judge, ARNOLD and BOWMAN; PER CURIAM
• Citation: Missouri Pacific R. Co. v. United Transp. Union, 782 F.2d 107 (8th Cir. 1986)
• Decision Date: 15 January 1986
• Docket Number: No. 84-1465,84-1465
• Parties: 121 L.R.R.M. (BNA) 2445, 104 Lab.Cas. P 11,762 MISSOURI PACIFIC RAILROAD COMPANY and Missouri-Kansas-Texas Railroad Co., Appellees, v. UNITED TRANSPORTATION UNION; General Committee of Adjustment; I. Newcomb; K.R. Guethle; R.D. Hogan; W.J. Shelton; Richard L. Helms; T.K. Arthur; R.W. Bretch; R.P. Shocklee; B.J. Bennett; K.R. Menges; J.E. Queathem and K.M. Danneman, Appellants.

Page 107

782 F.2d 107

121 L.R.R.M. (BNA) 2445, 104 Lab.Cas. P 11,762

MISSOURI PACIFIC RAILROAD COMPANY and Missouri-Kansas-Texas Railroad Co., Appellees, v. UNITED TRANSPORTATION UNION; General Committee of Adjustment; I. Newcomb; K.R. Guethle; R.D. Hogan; W.J Shelton; Richard L. Helms; T.K. Arthur; R.W. Bretch R.P. Shocklee; B.J. Bennett; K.R. Menges; J.E. Queathem and K.M. Danneman, Appellants.

No. 84-1465.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 14, 1985.

Decided Jan. 15, 1986.

John O'B. Clark, Jr., Washington, D.C., for appellants.

Gregg H. Levy, Washington, D.C., and H. Kent Munson, St. Louis, Mo., for appellees.

Before BRIGHT, Senior Circuit Judge, ARNOLD and BOWMAN, Circuit Judges.

PER CURIAM.

Appellants (United Transportation Union (UTU), its General Committee of Adjustment, and certain of its agents and officers) ask us to vacate the permanent injunction entered by the District Court ¹ barring them and those in active concert or participation with them from striking, picketing, and other specified actions. The injunction is limited to actions against Missouri Pacific Railroad Company (MOPAC) as a result of the operation of Missouri-Kansas-Texas Railroad Company (KATY) trains over MOPAC tracks under trackage rights granted to KATY by the Interstate Commerce Commission (ICC). We affirm.

The ICC granted KATY the trackage rights in question, over MOPAC's opposition, as a condition of the ICC's approval of the consolidation of MOPAC with Union Pacific Railroad Company. See Union Pacific Corp., 366 I.C.C. 459 (1982), aff'd sub nom. Southern Pacific Transportation Co. v. ICC, 736 F.2d 708 (D.C.Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1171, 84 L.Ed.2d 322 (1985). This consolidation was effected in December 1982. Early in January 1983 KATY, using its own employees, began operations over MOPAC tracks in accordance with the ICC's decision.

UTU sought to have MOPAC require KATY to use MOPAC crews in conducting its trackage rights operations. MOPAC took the position that the ICC had given KATY the right to use its own crews in those operations, and therefore that the matter was out of MOPAC's hands. KATY, for its part, entered into agreements with its own UTU employees to operate its trains in the implementation of its trackage rights over MOPAC tracks as authorized by the ICC. By Mailgram dated March 28, 1983, UTU threatened to strike MOPAC beginning April 4, 1983 if arrangements were not made "to halt this trespass on our collectively bargained agreements and our seniority by non-Missouri Pacific employees...." Stipulations, Appendix I.

On March 30, 1983, MOPAC initiated the present litigation by filing its complaint under the Railway Labor Act, 45 U.S.C. Sec. 151 et seq., and the Interstate Commerce Act, 49 U.S.C. Sec. 11341 et seq., seeking declaratory and injunctive relief against the threatened strike. On the same date, the District Court entered a temporary restraining order prohibiting implementation of UTU's strike threat.

On May 20, 1983, UTU filed counterclaims against MOPAC and KATY, which had intervened as a plaintiff, challenging KATY's use of KATY crews to operate KATY trains in trackage rights service. UTU alleged that KATY's trackage rights operations violated an "actual and objective rule and working condition" governing MOPAC employees, asserting the existence of a requirement that "trains operating over trackage owned by MoPac ... be manned by MoPac crews." Designated Record at 33, paragraphs 8, 9. UTU also contended that MOPAC and KATY had violated certain notice and negotiation conditions of the ICC's approval of KATY's trackage rights. Both of these issues, as well as issues raised by MOPAC's complaint, subsequently were presented by UTU directly to the ICC. On June 29, 1983, UTU filed a petition for clarification in which it asked the ICC to rule

[T]hat its prior orders (1) did not select the forces to perform the trackage rights operations, (2) did not relieve the carriers of their obligations under the Railway Labor Act to avoid unilateral changes of working conditions, and (3) did not relieve the carriers of their obligations to comply with the notice and negotiation provisions of the employee protective provisions imposed in the sub-proceedings at bar to protect the interests of MP employees affected by those transactions.

Missouri Pacific Railroad Co. v. United Transportation Union, 580 F.Supp. 1490, 1497 (E.D.Mo.1984).

A few months later the ICC issued a decision rejecting all three of UTU's arguments regarding the selection of crews. See Denver & Rio Grande Western Railroad Co., I.C.C. Finance Docket No. 30,000 (Sub-No. 18 et al. ) (October 19, 1983) (unpublished), reprinted in Brief for Appellants, Appendix I. The ICC held that (a) "trackage rights agreements do not involve a change in UP-MP employees' working conditions," id. at 5; (b) MOPAC's employees have "no right to participate in the trackage rights crew selection process," id. at 4-5; and (c) pursuant to 49 U.S.C. Sec. 11341, the ICC's approval of KATY's trackage rights applications exempted MOPAC and KATY from any inconsistent requirements of the Railway Labor Act or their collective bargaining agreements, id. at 15.

Soon thereafter the parties filed cross-motions for summary judgment. On March 1, 1984, the District Court issued a memorandum opinion, 580 F.Supp. 1490 (E.D.Mo.1984), explaining in detail the basis for its February 7, 1984 preliminary injunction and granting in part the railroads' motions for summary judgment. The District Court made detailed findings of fact, including a finding that the strike threatened by UTU would cause irreparable injury to MOPAC and to the thousands of shippers it serves. In its conclusions of law, the District Court held that (a) the dispute between MOPAC and UTU is a "minor" dispute within the meaning of the Railway Labor Act, and, therefore, section 4 of the Norris-LaGuardia Act, 29 U.S.C. Sec. 104, does not bar a labor injunction; (b) alternatively, if this is a "major" dispute within the meaning of the Railway Labor Act, the threatened strike would be illegal because the ICC has exempted the railroads from any duty to negotiate with appellants concerning crew selection for KATY's trackage rights, and section 4 of the Norris-LaGuardia Act must give way to the ICC's power to determine labor disputes in connection with consolidation and trackage rights proceedings; and (c) section 8 of the Norris-LaGuardia Act, 29 U.S.C. Sec. 108, does not prevent the issuance of a preliminary injunction because plaintiffs have not violated its provisions. 580 F.Supp. at 1499-1506.

On March 30, 1984, the District Court entered its permanent injunction against the threatened strike, and issued an accompanying memorandum which, inter alia, denied UTU's motion to exclude from the scope of the injunction the individual union members. D.R. at 139-45.

Meanwhile, UTU and another union, the Brotherhood of Locomotive Engineers, petitioned the United States Court of Appeals for the District of Columbia Circuit to vacate the ICC orders granting KATY the right to use its own crews in trackage rights service and exempting under 49 U.S.C. Sec. 11341(a) these crew selection prerogatives from the Railway Labor Act and other laws. On May 3, 1985 (several months after oral argument had been heard on the appeal in the instant case) the District of Columbia Circuit handed down its decision. Brotherhood of Locomotive Engineers v. ICC, 761 F.2d 714 (D.C.Cir.1985), petition for cert. filed, 54 U.S.L.W. 3359 (U.S. Nov. 7, 1985) (No. 85-792). In a two-to-one decision, the D.C. Circuit panel held that the ICC had failed to show that the exemption from the Railway Labor Act respecting crew selection was necessary. Accordingly, the court vacated the ICC orders relied upon by the railroads and left the parties to their Railway Labor Act remedies. A petition for rehearing and suggestions for rehearing en banc were filed, and on July 12, 1985, the D.C. Circuit sua sponte amended its opinion so that instead of leaving the parties to their Railway Labor Act remedies the court remanded the case to the ICC, giving the ICC the opportunity to exercise its exemption authority by explaining "why termination of the asserted right to participate in crew selection is necessary to effectuate the pro-competitive purpose of the grant of trackage rights or some other purpose sufficiently related to the transaction." Id. at 725. The opinion thus having been amended, the petition for rehearing and suggestions for rehearing en banc were denied on August 9, 1985.

The ICC then petitioned the Supreme Court for a writ of certiorari; the Court has not yet ruled on the petition, and the D.C. Circuit, which first stayed its mandate and then eventually issued it on November 12, 1985, recalled its mandate on November 18, 1985 pending the Supreme Court's action. The ICC orders relied upon by MOPAC and KATY, and by the District Court, are thus still in force.

On December 23, 1985, appellants filed a petition for a writ of certiorari requesting the Supreme Court, if it grants review of the D.C. Circuit case, to review the present case before judgment by our Court. The Supreme Court has not yet acted upon this petition. We could hold our decision in abeyance during the pendency of the petition, or proceed to issue it now. For whatever assistance it may be to the parties and to the progress of the litigation, we issue it now.

As the District Court correctly noted, if a dispute is minor and cannot be resolved by the normal grievance procedure, the parties must submit their differences to the National Railroad Adjustment Board, the jurisdiction of which is exclusive. See Andrews v. Louisville & Nashville Railroad Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972). It follows that a strike over minor disputes violates the Railway Labor Act and may be enjoined by a federal district court,...