Railway Labor Executives' Ass'n v. Boston & Maine Corp.

• Decision Date: 22 December 1986
• Docket Number: No. 86-1653,86-1653
• Citation: 808 F.2d 150
• Parties: 124 L.R.R.M. (BNA) 2145, 55 USLW 2412, 105 Lab.Cas. P 12,138 RAILWAY LABOR EXECUTIVES' ASSOCIATION, Appellee, v. BOSTON & MAINE CORPORATION, et al., Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 150

808 F.2d 150

124 L.R.R.M. (BNA) 2145, 55 USLW 2412,

105 Lab.Cas. P 12,138

RAILWAY LABOR EXECUTIVES' ASSOCIATION, Appellee, v. BOSTON & MAINE CORPORATION, et al., Appellants.

No. 86-1653.

United States Court of Appeals, First Circuit.

Argued Sept. 5, 1986.

Decided Dec. 22, 1986.

Ralph J. Moore, Jr. with whom William F. Sheehan, Richard M. Wyner, Eugenia Langan, Shea & Gardner, Washington, D.C., Charles S. Einsiedler, Jr., Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, Me., and John Townsend Rich, Washington, D.C., were on brief, for appellants.

John O'B. Clarke, Jr. with whom Thomas P. Murphy, Kimberly A. Madigan, Highsaw & Mahoney, P.C., Washington, D.C., Craig J. Rancourt and Law Offices of Craig J. Rancourt, Biddeford, Me., were on brief, for appellee.

Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

The central issue presented by this appeal is, whether under the circumstances of this case, the abolishment of certain job positions constitutes a "minor" dispute ¹ subject to the arbitration provisions of existing collective bargaining agreements, or whether such actions are a violation of the substantive provisions of the Railway Labor Act, 45 U.S.C. Secs. 151 et seq. (RLA), the reparation of which may be sought by recourse to the courts. ² The resolution of this dilemma will depend upon the answer given to the various subsidiary questions which we must first consider.

The case is another episode in the continuing labor saga of the Boston & Maine Railroad and related companies. See Brotherhood of Maintenance of Way Employees v. Guilford Transportation Industries, Inc., 803 F.2d 1228 (1st Cir., 1986). The facts are somewhat convoluted. We shall recount only those that are vital to the determination of the narrow issue presented. We, of course, are bound by the factual findings of the district court, unless we conclude that they are clearly erroneous. Rule 52(a), Fed.R.Civ.P.; Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 105 S.Ct. 1504, 1511-13, 84 L.Ed.2d 518 (1985).

I. The nature of the controversy

The Brotherhood of Maintenance of Way Employees (BMWE) is a labor organization which represents, for collective bargaining purposes, the maintenance of way employees of the Maine Central Railroad Company and Portland Terminal Company (hereinafter referred to jointly as "Maine Central"). This relationship has existed for some time and has been memorialized in collective bargaining agreements between the BMWE and Maine Central.

As is normal, with the passage of time the parties sought to make changes in the contracts. Thus, on April 2, 1984 the BMWE served notice on Maine Central of its intention to renegotiate various of the existing contractual provisions. ³ BMWE "sought primarily to achieve contract terms that would (1) afford greater job protection for BMWE membership than existed under the existing collective bargaining agreement and (2) limit the carrier's right to achieve reductions in the work force of contract labor by future job abolishments." ⁴ The propelling force behind these demands was the reduction of the maintenance of way employees from 350 to 400 in number during the 1981-82 period to 120 to 165 by October 1985.

The negotiations that followed were unfruitful. The parties exhausted the various steps provided for by the RLA and were thereafter released by the National Mediation Board (Board). ⁵

On November 13, 1985, before either party resorted to self-help, the BMWE and Maine Central entered into a stipulation whereby Maine Central "agreed to a moratorium on their proposed job abolishments." ⁶ Both parties also assented to postponing the exercise of self-help action until after February 28, 1986.

The parties continued to meet during the moratorium in an attempt to reach an agreement, but to no avail. The status quo stipulation expired on February 28, and thereafter, Maine Central abolished 15 to 20 maintenance of way positions. On March 3, BMWE initiated a strike against Maine Central. It also established pickets against Boston & Maine Corporation (B & M) and Delaware & Hudson Railway Company (D & H), which are related carriers by virtue of their mutual ownership by Guilford Transportation Industries, Inc., a holding company. See Guilford Transportation Industries, Inc., supra. Less than 2% of the contract employees of the carriers crossed BMWE's picket lines.

Immediately upon the establishment of BMWE's picket lines against Maine Central, that carrier informed all of its employees who held contract positions that their positions were temporarily abolished. The controversy further escalated. After B & M and D & H were picketed, they abolished all of the positions covered by collective bargaining agreements. All three carriers intended to restore the jobs upon termination of the strike. ⁷

On March 24, 1986, the appellees, the Railway Labor Executives' Association (RLEA), ⁸ filed the original complaint in this case in the U.S. District Court for Maine, seeking declaratory and injunctive relief to prevent Maine Central from taking discriminatory action against the striking employees. RLEA also sought to enjoin D & H and B & M from retaliating against the employees who refused to cross BMWE's picket lines. The carriers in their answer denied any such retaliation and specifically claimed that any actions taken by them were permissible under their collective bargaining agreement and that any claims to the contrary gave rise only to a "minor" dispute subject to the exclusive jurisdiction of arbitration boards created under 45 U.S.C. Sec. 153.

Meanwhile, because of the spread in the conflict beyond the confines of the immediate combatants, ⁹ the Board on April 14 recommended to the President the appointment of an Emergency Board as provided for in the RLA. ¹⁰ The carriers became aware of this recommendation which, if followed, would result in the issuance of a back-to-work order which they believed would prevent their taking contemplated action, and decided to permanently abolish those positions which earlier it had only "temporarily" eliminated, a decision carried out on or about April 18, 1986.

Under the provisions of the existing collective bargaining agreements, senior employees whose positions were abolished could exercise "bumping" rights ¹¹ over junior employees, but they were required within a certain time period, in some cases, to exercise displacement by physically entering the junior employee's work area to inform him or her of the replacement, and in all cases, to commence work at the next scheduled shift. Either way this could only be done by crossing the established picket lines, an action which most employees refused to take. Virtually none of the B & M and D & H employees honoring the BMWE's picket lines exercised their bumping rights within the contractual time limits.

The agreements also provided that an employee whose position was abolished, but failed to bump could place his name and address on a hiring list, if he or she did so within a specified time period. Although theoretically the failure to sign up could result in the employee's loss of seniority, this rule had not in the past been strictly enforced by any of the carriers.

On May 16, 1986, President Reagan issued Emergency Order No. 2559 establishing an emergency board to investigate the Maine Central labor dispute. See 51 Fed.Reg. 18429 (May 20, 1986). The order also provided that for sixty days, "no change, except by agreement of the parties, shall be made by the carrier or the employees in the conditions out of which these disputes arose " (emphasis supplied).

Upon the creation of the Emergency Board by the President, all of the labor organizations representing the carriers' employees made unconditional offers to return to work immediately. Maine Central accepted this offer and all striking employees returned to the positions they held before the strike and thereafter, retained them throughout the week of May 19th. During that week, however, Maine Central issued job abolishment notices to 447 of its labor force covered by collective bargaining contracts, a figure which roughly coincided with the volume of business loss caused by the strike.

D & H and B & M, however, took the position that they would only hire after determining the carriers' work needs after the effects of the secondary pickets. These carriers then proceeded to post for bidding the needed positions, the ultimate result being that only about 50% of their pre-strike positions were reinstated.

On May 20, 1986, RLEA sought a temporary restraining order against D & H and B & M, claiming their actions violated the status quo provisions of the President's Order and Section 10 of RLA. ¹² The district court ruled that said order did not cover either D & H or B & M. A request for a temporary restraining order against Maine Central was also denied, the court holding that Maine Central had made a substantial preliminary showing that the abolition of the positions in question was directly related to loss of business and revenues occasioned by the strike.

On May 27, 1986, the carriers unilaterally terminated the seniority of all employees who did not file their names and addresses in a timely fashion. But even then, the provision was not uniformly applied by the carriers. For example, although 145 B & M employees were notified of the seniority loss by that carrier, D & H did not apply that provision to its signalmen employees. ¹³ This provision was then selectively enforced by the carriers.

The substance of the RLEA's temporary restraining order allegations were repeated in an amendment to the complaint filed on June 16, 1986, which the carriers thereafter answered denying said contentions.

The district court's decision

The district court after a full trial on the request for a permanent injunction issued its opinion on July 11, 1986, 639 F.Supp. 1092. It ruled...