Switchmen's Union of North America v. Southern Pacific Co.

Decision Date10 July 1968
Docket NumberNo. 21813.,21813.
Citation398 F.2d 443
PartiesSWITCHMEN'S UNION OF NORTH AMERICA, AFL-CIO, a voluntary association, General Adjustment Committee — Southern Pacific Company, Switchmen's Union of North America, a voluntary association; Neil P. Speirs, as International President, Switchmen's Union of North America; John R. Burge, as General Chairman, General Adjustment Committee — Southern Pacific Company Switchmen's Union of North America; Does One through One Thousand, individually and as representatives of the aforementioned associations, Appellants, v. SOUTHERN PACIFIC COMPANY, a corporation, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Russell M. Baker (argued), of Baker, Jordan & Foreman, Dallas, Tex., Leo M. O'Connor of O'Connor & Lewis, Sacramento, Cal., for appellant.

William R. Denton (argued), W. A. Gregory, San Francisco, Cal., for appellee.

Before HAMLEY and MERRILL, Circuit Judges, and CROCKER,* District Judge.

HAMLEY, Circuit Judge:

Southern Pacific Company brought this action against Switchmen's Union of North America, AFL-CIO, and others, to enjoin a strike or work stoppage by all switchmen on the company's Pacific Lines (seven western states), and for damages in the amount of two million dollars. The district court granted a preliminary injunction and defendant union and others appeal therefrom. The damage claim is still pending in the district court.

The principal question presented here is whether, under the circumstances of this case, the district court had jurisdiction to enjoin the strike.

Section 1 of the Norris-LaGuardia Act, 47 Stat. 70 (1932), 29 U.S.C. § 101 (1964), provides that no court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case growing out of a labor dispute, except in strict conformity with that Act. As applied to disputes arising under the Railway Labor Act, 44 Stat. 577 (1926), as amended, 45 U.S.C. §§ 151 et seq. (1964), this and other sections of the Norris-LaGuardia Act have been held to prevent the issuance of an injunction in a railway labor case involving a "major dispute," but to allow the issuance of an injunction in such a case where the controversy involves a "minor dispute," as labor disputes are traditionally categorized in the railway labor world. Brotherhood of Railroad Trainmen v. Chicago River & Indian R. R. Co., 353 U.S. 30, 42, 77 S. Ct. 635, 1 L.Ed.2d 622; Butte, Anaconda & Pacific Ry. Co. v. Brotherhood of Locomotive Firemen and Engineers, 9 Cir., 268 F.2d 54, 58-59.

The union contends that the controversy which gave rise to the strike here in question was a major dispute and that therefore, under the principles referred to above, the district court was without jurisdiction to enjoin the strike. The company, on the other hand, argues that the underlying controversy was a minor dispute.

Major disputes are those which relate to the formation of collective bargaining agreement or efforts to secure them. They arise where there is no such agreement or where it is sought to change the terms of one, and therefore the issue is not whether an existing agreement controls the controversy. As the Supreme Court said in Elgin, Joliet & Eastern Ry. Co. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 1290, 89 L.Ed. 1886: "They major disputes look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past."

Minor disputes contemplate the existence of a collective agreement or, at any rate, a situation in which no effort is made to bring about a formal change in terms or to create a new one. 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. In the latter event, the Supreme Court observed in the Elgin case, 325 U.S. at 723, 65 S.Ct. at 1290, "the claim is founded upon some incident of the employment relation, or asserted one, independent of those covered by the collective agreement * * *."

In the light of these tests, we turn to a consideration of the circumstances giving rise to the strike in question, substantially as set out in the union's brief.

Prior to Friday, February 20, 1967, four yardmasters, including J. D. Shockley, were employed by the company on its property at Tucumcari, New Mexico. On that date the last of these four yardmaster positions was abolished by the company. On March 11, 1967, Shockley was permitted by the company to displace yardmaster James L. Hill at Southern Pacific's Tucson, Arizona yard. Hill had been promoted to yardmaster in the Tucson yard under Article 12(a) of the yard agreement, dated September 1, 1956, then in existence between the Switchmen's Union and the company.1

As of March 11, 1967, employees of the Southern Pacific of the craft of yardmen and switchmen were represented by defendant union, and the yardmaster employees of the company were represented by Railroad Yardmasters of North America, Inc. On March 29, 1965, the Railroad Yardmasters of North America, without the knowledge, consent or participation of defendant union, entered into an agreement with the company. The relevant part of Article 8, Section (a) of that agreement is quoted in the margin.2

Defendant union took the position that Article 8, Section (a) of the Railroad Yardmasters agreement is in direct conflict with Article 12(a) of the agreement then in effect between defendant union and Southern Pacific. It also contended that Article 8, Section (a) was in direct conflict with forty-seven years of established practices the company had with defendant union, and twenty-seven years of established practices the company had with Railroad Yardmasters of North America.3 Accordingly, defendant asserted, the displacing of yardmaster Hill with yardmaster Shockley on March 11, 1967, was a direct, unequivocal and unilateral abrogation by the company of the agreement then in effect with defendant union, and of the long-established practices referred to above.

The company disagreed with defendant union, taking the position that while Article 12(a) of the agreement between them prescribes the manner and qualifications for promotion of switchmen at Tucson, the incident here in question involved not a promotion of switchmen to yardmaster, but an assignment of a yardmaster from Tucumcari to Tucson.

The dispute being unresolved, the union called a strike on March 12, 1967. The company then sought and obtained the injunction from which this appeal was taken.4

The facts recited above indicate to us that the controversy in question was a minor dispute. While, under the union's construction of the agreement and of the long-standing practices, the company was claiming a right or authority not theretofore recognized, the company's position was that it was proceeding in accordance with the existing agreement and practices. Thus, all that was involved was a disagreement as to the construction and significance of an existing agreement and existing practices.

To apply the test prescribed in Elgin, Joliet & Eastern Ry. Co. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 89 L.Ed. 1886, no effort was made by either party to bring about a formal change in the terms of the existing agreement or to create a new agreement. Formal changes in an agreement or the creation of a...

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