RAILWAY EXP. AG'CY, INCORP. v. BROTHERHOOD OF R., A. & SC, FH

• Decision Date: 25 January 1971
• Docket Number: No. 29256.,29256.
• Citation: 437 F.2d 388
• Parties: RAILWAY EXPRESS AGENCY, INCORPORATED, Plaintiff-Appellee, v. BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

437 F.2d 388 (1971)

RAILWAY EXPRESS AGENCY, INCORPORATED, Plaintiff-Appellee, v. BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS et al., Defendants-Appellants.

No. 29256.

United States Court of Appeals, Fifth Circuit.

January 25, 1971.

Carole A. Gardiner, Neal P. Rutledge, and Thomas W. McAliley, Beckham & McAliley, Miami, Fla., for defendants-appellants.

Arthur M. Wisehart, Gen. Counsel, New York City, and Charles Kelso of Fisher & Phillips, Atlanta, Ga., for plaintiff-appellee.

Before BELL, THORNBERRY and CLARK, Circuit Judges.

BELL, Circuit Judge:

This appeal by defendant-local unions presents questions arising from the entry of a permanent injunction against the further picketing of the employer-Railway Express Agency (REA) by defendants. The basic question is whether the dispute underlying the suit is major or minor as those terms are used in the Railway Labor Act, 45 U.S.C.A. § 151 et seq. With respect to these questions, the international union from the beginning has agreed with REA that the dispute is minor and for resolution by a Special Board of Adjustment under the Act. Other questions for consideration have to do with the propriety and scope of the injunction aside from the major-minor dichotomy. We affirm.

REA, a nationwide express agency, is a "carrier" engaged in interstate commerce within the meaning of the Railway Labor Act. Appellants are local unions and their officers, who are named as defendants both in their individual and official capacities and as representatives of the classes of REA employees against whom this suit is brought. They are affiliated with the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees (BRAC), an international union which is the exclusive bargaining agent for REA employees.¹ The union contract covering the employees here involved are those into which REA and BRAC entered. There is no contract between REA and the appellant-local unions.

The dispute between REA and appellants had its genesis in a change in work assignment at the Atlanta Airport. On June 1, 1969, REA by agreement with Delta Air Lines contracted out to Delta a portion of REA's air express transfer work which REA's employees had previously handled at Atlanta Airport. This change was instituted unilaterally without any advance notice to the union and without giving the union any opportunity to confer or negotiate with management.

REA maintains a field office or operation at the Atlanta Airport as it does at most major airports for the transfer of air express from one flight to another. Prior to June 1, 1969, REA employees handled all transfers between flights through the REA facility, with the exception of "ramp transfers" — a procedure by which airline employees handled very limited emergency transfers involving medicines, blood and the like. In late May, REA offered the airlines the opportunity to transfer routine express between their own flights using their own employees if the flight was to leave the Atlanta Airport within three hours. The purpose of the offer, according to REA, was to decrease the long delay in express processing which frequently occurred at the airport. Delta accepted the offer and the change was implemented on June 1, 1969. The same offer was declined by the other airlines at the Atlanta Airport.

There are three factual issues involved but, as will be seen, their resolution is unnecessary to our decision. One factual dispute is over the magnitude of the change from the standpoint of REA employees. REA says that the change transferred out fourteen per cent of the total volume of the express transfer work and that no jobs had been terminated due to the change. If all airlines accepted REA's proposal, an additional ten per cent of the air express would be transferred out of the REA terminal. Defendants say REA's action transferred out between thirty and forty per cent of the transfer work and that one job had been abolished. It does appear that this amount is all of the Delta express handled at the airport but, nevertheless, we deem that defendants take the position that something more is involved than what REA claims; hence a factual dispute. Also, there is a dispute about the precise nature of the change. REA says it farmed out to Delta only intraline transfers that could arrive on one Delta flight and go out on another within three hours. Defendants say that Delta employees handle all or most of its intraline transfers without regard to the three-hour limitation.

A third factual dispute relates to the past history of REA's farming out of work as it did on June 1, and is not really a dispute. REA claims to have contracted out such work at other airports without notice to, or complaint from, the union in the past. In support of this contention, REA cites several instances in which transfer procedures similar to those now followed by Delta have been implemented at other airports throughout the country. Appellants' evidence indicates that REA has never before farmed out such work in the five-state Gulf District without prior union agreement or notice. REA does not dispute this contention, but instead relies upon information concerning airports outside of the Gulf District.

At any rate the local REA employees were dissatisfied with the change and they engaged in a two-hour work stoppage on June 6. This stoppage ended voluntarily. Between June 6 and June 16, union officials discussed the matter with REA on several occasions, but no agreement could be reached. On June 16, picketing started in Atlanta, and a work stoppage ensued. Similar action later occurred at other southern cities. BRAC, (the international) viewed the dispute as minor and instructed the locals to discontinue the picketing, but it nevertheless continued. BRAC also notified the locals that REA would expedite the handling of the grievance by the Special Board of Adjustment which had been created by the contract. No grievance was filed by the locals, however, since they did not consider the dispute to be minor.

On June 25, REA instituted an action for injunctive relief in the district court, seeking to enjoin the picketing and work stoppage. A temporary restraining order, issued on that date, was continued indefinitely on July 22 following a hearing. This hearing did not include testimony by witnesses. The issues were narrowed by counsel and some of the facts were stipulated as being undisputed. Affidavits and briefs were thereafter filed. It was agreed that the major-minor issue would be determined as a question of law on the undisputed facts if at all possible.

REA contends that the dispute arose out of the interpretation or application of agreements between REA and BRAC, and that it was a minor dispute within the meaning of the Railway Labor Act. It was the position of the local unions that the contracting or farming out of work which is within the scope of an existing contract gives rise to a major dispute under the Railway Labor Act, and that such was the case here. In addition, since action of such magnitude was taken by REA unilaterally, the locals were entitled to an injunction restoring the status quo ante. In any event, the locals asserted, since REA failed to discuss the matter in advance of acting, even if a minor dispute, the status quo ante should be restored. On December 8, 1969, the previously issued order was continued as a permanent injunction, "to protect the jurisdiction of the Special Adjustment Board which has jurisdiction of this dispute."

I.

We turn first to the issue whether the dispute between the parties was "major" or "minor" in the parlance of the Railway Labor Act. In Brotherhood of Locomotive Firemen and Enginemen v. Florida East Coast Ry. Co., 5 Cir., 1965, 346 F.2d 673, we said:

"Under the Railway Labor Act, minor disputes involve grievances or questions of interpretation of an existing collective bargaining contract; major disputes arise from efforts to change working conditions through the making of a new agreement." 346 F.2d at 676.

In making that statement, we, as was the case with the district court, here, relied on Elgin, Joliet & Eastern Ry. Co. v. Burley, 1945, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886, where the Supreme Court set out the rationale of the Act as it relates to the handling of disputes between management and labor. Major disputes must be resolved under the procedures set forth in § 6 of the Act, 45 U.S.C.A. § 156. There must be notices of intended changes, negotiations, possible mediation by the National Mediation Board. All of these procedures must be exhausted before the employer may implement the intended changes and before the union is free to strike. Minor disputes, on the other hand, are for arbitration before the National Railroad Adjustment Board or before a Special Adjustment Board established by the parties.² The Act provides for compulsory arbitration of all minor disputes and prohibits all strikes over minor disputes. Brotherhood of Railway Trainmen v. Chicago River & Ind. Ry. Co., 1957, 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed. 2d 622.

The dispute here narrows as follows. Appellants contend that REA contracted out "scope work" in violation of the agreement between REA and BRAC. The argument is that the employees of REA have always performed the air express transfer work at the Atlanta Airport. Thus, although not explicitly mentioned in the agreement, it is within the scope of the agreement and may not be transferred to others. To support this contention, appellants rely on past practices at the Atlanta Airport. The difficulty is that there is no mention whatever of any particular work assignment in the agreement.

REA, on the other hand, contends that it did not violate the scope clause of the agreement by unilaterally permitting Delta to make certain ramp transfers and thus did not violate the contract. REA relies primarily on past practices at other airports...