109 Lab.Cas. P 10,541
BROTHERHOOD OF RAILWAY, AIRLINE & STEAMSHIP CLERKS, FREIGHT
HANDLERS, EXPRESS & STATION EMPLOYEES, an
association, and BRAC Santa Fe Systems
Board of Adjustment,
Plaintiffs-Appellants,
v.
The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Defendant-Appellee.
No. 87-1313.
United States Court of Appeals,
Seventh Circuit.
Argued June 5, 1987.
Decided May 20, 1988.
John A. Edmond, Guerrieri & Sweeney, P.C., Washington, D.C., for plaintiffs-appellants.
John J. Fleps, Santa Fe Southern Pacific Corp., Legal Dept., Chicago, Ill., for defendant-appellee.
Before COFFEY and FLAUM, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
COFFEY, Circuit Judge.
This appeal requires the court to determine the breadth of federal courts' jurisdiction over a dispute between a railroad, the Atchison, Topeka & Santa Fe Railway Company ("Santa Fe"), and a union, the Brotherhood of Railway, Airline & Steamship Clerks, Freight Handlers, Express & Station Employees ("BRAC"). BRAC sued Santa Fe in federal district court, asking that the court enjoin a Santa Fe program or plan to purchase the resignations of certain BRAC-represented clerical employees. The parties refer to the compensated resignations as "buyouts." BRAC alleges that the buyout program constitutes impermissible direct dealing with union members as well as an unauthorized unilateral change in working conditions, in violation of section 152, paragraphs Third and Fourth and section 152, paragraphs Second and Seventh, respectively, of the Railway Labor Act ("the RLA"). See 45 U.S.C. Sec. 152, paragraphs Second, Third, Fourth, Seventh (1982). The district court dismissed BRAC's suit for lack of subject matter jurisdiction, finding that the dispute was minor and thus within the exclusive jurisdiction of the National Railroad Adjustment Board ("the NRAB"). BRAC appeals.
FACTS
BRAC is the certified representative of the clerical workers of Santa Fe. Santa Fe is an interstate carrier by rail within the meaning of the RLA and their labor relations are governed by the RLA. Over the years, Santa Fe and BRAC have entered into several collective bargaining agreements. The agreement now at issue, effective June 1, 1981, includes a "Mediation Agreement." Among other things, the Mediation Agreement provides that any BRAC-represented "protected" employee who is involuntarily furloughed (laid off) will continue to receive "protective payments" from Santa Fe. Protected status is achieved through seniority and is specifically defined in the Mediation Agreement. The Mediation Agreement also recites that Santa Fe may reduce the number of protected employees if its business declines, but must restore the benefits of those workers if business subsequently improves. Both the reduction and the restoration of protective benefits is carried out by Santa Fe pursuant to a seniority-based formula provided by the Mediation Agreement. The Mediation Agreement is silent with regard to voluntary resignations.
In 1981, Santa Fe's business declined substantially and, pursuant to the Mediation Agreement, Santa Fe reduced the number of protected employees. By mid-1983, however, Santa Fe's business rebounded and Santa Fe faced increased protective payments under the Mediation Agreement. Santa Fe officials immediately became concerned with the cost of those payments. On August 19, 1983, B.J. East, Santa Fe's Assistant to the Vice President--Labor Relations, concluded that "the company may want to give consideration to some type or form of payoff to employees in return for their resignations in order to avoid these continuing monthly protective payments."
During 1984, Santa Fe and BRAC attempted to negotiate a buyout program designed to reduce the carrier's protective payments, but failed to reach agreement. In January 1985, Santa Fe unilaterally began to offer various individual clerks a cash payment of $3,500.00 in exchange for their resignations and waivers of all BRAC-negotiated rights. In February 1986, Santa Fe offered clerks whose seniority allowed them regular job assignments $10,000 for their resignations. In April 1986, Santa Fe offered clerks at certain locations varying amounts to resign, depending upon their status and seniority: currently assigned clerks were offered $20,000, furloughed clerks with at least six years of service were offered $10,000, and furloughed workers with less than six years of service were offered $4,000.00.
BRAC contends that it did not acquiesce in any of the buyout offers, but protested them vigorously whenever information concerning the offers came to its attention. For example, BRAC argues that it informally protested the buyouts, both orally and in writing, from the time it learned of the first Santa Fe program in 1985. BRAC also filed grievances protesting the buyout program in March 1985, but it did not pursue the grievances further. In January and March 1986, BRAC protested the Santa Fe programs by mailgram and letter. Finally, on May 2, 1986, BRAC filed this suit.
Santa Fe, on the other hand, alleges that BRAC knew of and impliedly agreed to its buyout programs. In support of its claim, Santa Fe contends that a BRAC official signed as witness on resignation forms executed by several clerks pursuant to Santa Fe's first offer and that two other BRAC officials accepted Santa Fe buyout offers and resigned in 1986. Furthermore, Santa Fe cites several instances in which it has solicited clerks to resign in exchange for cash payments under a variety of circumstances without protest by BRAC. For example, for many years Santa Fe had solicited resignations of employees represented by BRAC and other unions in settling personal injury and employment discrimination claims. Also, in December 1983 and January 1984, the railroad used a plan similar to the one before us to encourage attrition after a merger. Santa Fe claims that BRAC knew of these programs, but did not challenge them and explicitly acquiesced in the post-merger buyout program. Similarly, Santa Fe contends that it purchased the resignation of a BRAC-represented clerk in June 1984 with BRAC's full knowledge and acquiescence. Accordingly, the railroad contends that the parties had developed an established practice allowing Santa Fe to buy voluntary resignations, a practice well enough defined by the parties' course of dealing to become a part of their collective bargaining agreement.
The district judge examined the evidence and determined that Santa Fe's contention that buyouts were an established past practice was neither frivolous nor obviously insubstantial. As a result, the court characterized the dispute before it as minor--one involving the interpretation of an existing collective bargaining agreement. Thus, the dispute fell within the exclusive jurisdiction of the NRAB and the district judge declined to reach the merits. The court did not discuss whether it could exercise jurisdiction based on BRAC's allegation of statutory violations. Bhd. of Ry., Airline & Steamship Clerks v. Atchison, T. & S.F. Ry., No. 86 C 3793, slip op. (Feb. 12, 1987)
DISCUSSION
Federal courts determine whether they may exercise jurisdiction over labor disputes involving interstate rail and air carriers by analyzing the nature of the dispute at hand. Two separate grounds may allow federal jurisdiction. First, federal courts may entertain suits involving major disputes. Major disputes are those that involve formation, rather than interpretation, of collective bargaining agreements. Ry. Labor Executives Ass'n v. Norfolk & W. Ry.,
* Jurisdiction Over Major and Minor Disputes
The RLA does not refer to "major" or "minor" disputes. The Supreme Court supplied those labels to distinguish the disputes governed by section 2 of the RLA from those decided under section 3. Norfolk & W. Ry.,
The first [major disputes] relates to disputes over the formation of collective agreements 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. They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.
The second class [minor disputes], however, contemplates the existence of a collective agreement already concluded 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 claim is founded upon some incident of the employment relation, or asserted one, independent of those covered by the collective agreement, e.g., claims on account of personal injuries. In either case the claim is to rights accrued, not merely to have new ones created for the future.
Elgin, J. & E. Ry. v. Burley,
In determining whether a dispute can be resolved by reference to an existing agreement (and thus labeled minor), we do not restrict our analysis to the explicit terms of the written documents. Instead, we interpret the collective bargaining agreement to include those established past practices that form the course of dealing between the parties. Detroit & T.S.S. Line R.R. v. United Transp. Union,
Applying these standards to the case at hand, we agree with the district court's holding that this dispute is minor. The collective bargaining agreement between BRAC and Santa Fe does not address voluntary resignations; therefore, any agreement between the parties on the subject of voluntary resignations must be found outside the written documents. Thus, the court appropriately considered evidence of a course of dealing. See Norfolk & W. Ry.,
BRAC relies heavily on three cases: Int'l Ass'n of Machinists, District Lodge No. 19 v. Soo Line R.R., No. 4-86-353, slip op. (D.Minn. Aug. 13, 1986) , aff'd,
Of the three cases relied upon by BRAC, only the Chesapeake & O. Ry. case sets forth a thorough discussion of the employer's past practices allowing us to make a direct comparison with the case before us.3 See Chesapeake & O. Ry.,
As the district judge in this case noted, the facts here demonstrate a much closer relationship between the past-practice evidence and the challenged current practice. Bhd. of Airline, Ry. & Steamship Clerks v. Atchison, T. & S.F. Ry., slip op. at n. 8 (distinguishing Chesapeake & O. Ry.). Here, Santa Fe produced evidence that it offered cash payments in exchange for resignations by BRAC-represented employees on two separate occasions before instituting this plan, and that BRAC acquiesced in those offers. Moreover, Santa Fe offered evidence that BRAC officials cooperated with the same plan they now challenge, both by acting as witness on resignation forms and by personally taking advantage of the plan. Santa Fe's evidence of past practice thus arguably would support a finding that the union acquiesced in this very plan, as well as the similar post-merger program. This evidence of past practice is far stronger than that offered by the railroad in Chesapeake & O. Ry.
In sum, we agree with the district court that the evidence in this case supports a nonfrivolous claim that the Santa Fe buyout program was consistent with a mutually understood course of dealing between BRAC and Santa Fe. We therefore hold that this dispute is minor and must be resolved by the NRAB. Of course, whether the evidence is sufficient to establish an enforceable, contractual obligation is a question solely for the NRAB. On that question, we express no opinion. See Norfolk & W. Ry.,
II
Jurisdiction Over RLA Violations
As an alternative basis for jurisdiction, BRAC alleges that Santa Fe's unilateral institution of the buyout program violated specific provisions of the Railway Labor Act, specifically, section 152, paragraphs Second, Third, Fourth, and Seventh. See 45 U.S.C. Sec. 152, p p Second, Third, Fourth, Seventh. Section 152, paragraph Third gives the parties the right to choose their collective bargaining representatives, while section 152, paragraph Fourth bars carriers from interfering with the organization of their employees. BRAC contends that Santa Fe violated those provisions by dealing directly with employees during the buy-out program, rather than negotiating with BRAC. See 45 U.S.C. Sec. 152, p p Third, Fourth. Section 152, paragraph Second requires carriers and unions to bargain together over all disputes, and section 152 Seventh forbids any change in "pay, rules, or working conditions" without following statutory procedures. BRAC contends that Santa Fe violated those rules by instituting the buy-out program unilaterally, outside the statutory procedure. See 45 U.S.C. Sec. 152.
557p Second, Seventh. BRAC argues that its allegations of specific RLA violations create jurisdiction in the district court wholly independent of whether the dispute is major or minor.
BRAC correctly asserts that a federal court may exercise jurisdiction over violations of the Railway Labor Act without regard to the court's characterization of the dispute as major or minor--at least in some instances. Compare Ry. Labor Executives' Ass'n v. Boston & Maine Corp.,
The scope of federal courts' jurisdiction over RLA violations is limited to "exceptional circumstances requiring judicial intervention." Alaska Airlines,
In keeping with the approach of the Supreme Court, lower federal courts have stressed that their jurisdiction over RLA violations is quite narrow. See, e.g., Alaska Airlines,
In some instances, a court may exercise jurisdiction over disputes arising before a union has been certified as the representative of the employees involved. For example, in Conrad v. Delta Airlines,
Cases in which federal courts have held that jurisdiction was established to hear post-certification disputes also do not support jurisdiction here. One such decision, Brady v. Trans World Airlines,
Three other post-certification cases holding jurisdiction established, Boston & Maine Corp.,
In Ruby, a union sought to enjoin an airline from moving its pilot base to El Salvador. Under Salvadorean law, the union would no longer be recognized as the representative of the pilots and the collective bargaining agreement between the airline and the union would be nullified. Ruby,
Finally, in Boston & Maine Corp., a union alleged that a railroad had abolished the jobs of employees who had refused to cross picket lines. Because such a refusal is protected by the RLA, the employer's retaliatory abolishment of the jobs violated the RLA. The court characterized the railroad's defense of contractual justification as a "red herring." Although the collective bargaining agreement allowed abolishment of jobs, no reasonable construction of the contract could allow job abolishments to target specifically those workers who had engaged in protected activities. Boston & Maine Corp.,
As we read the cases allowing federal courts to assert jurisdiction over alleged RLA violations, they can be divided roughly into two groups.4 One group provides jurisdiction in cases in which the extrajudicial dispute-resolution framework of the RLA is either unavailable, see Conrad,
The second group of cases allows federal jurisdiction over disputes that involve actions taken by an employer with specific intent to weaken or destroy a union--anti-union animus, in the parlance of labor law. See, e.g., Boston & Maine Corp.,
In summary, Santa Fe has produced sufficient evidence of an established past practice to render this dispute minor, thus within the exclusive jurisdiction of the NRAB. Moreover, BRAC fails to allege either that the statutory dispute-resolution process cannot properly address its claim or that Santa Fe seeks to destroy the union through the buyout program. We find no basis for asserting jurisdiction over the subject matter of this dispute. The decision of the district court is
AFFIRMED.
Notes
A third rationale also may allow a court to exercise jurisdiction and to issue an injunction in disputes arising under the RLA. A court may enjoin employer actions that engender only minor disputes if the delay in obtaining an NRAB decision will result in irreparable harm to employees. "If this be so, the action of the district judge, rather than defeating the Board's jurisdiction, would operate to preserve that jurisdiction by preventing injury so irreparable that a decision in the union's favor would be but an empty victory." Bhd. of Locomotive Eng'rs v. Missouri-K.-T. R.R.,
Past-practice evidence generally will not be admitted to contradict the express provisions of a written contract. Norfolk & W. Ry.,
In Soo Line R.R., the parties apparently did not debate whether an established past practice allowed the railroad's buyout program. Neither the circuit court nor the district court discussed any evidence of past practices. Soo Line R.R.,
We have imposed this structure on the caselaw for analytical purposes only. The groups are not mutually exclusive. For example, Conrad and Burke, which we place in the first group, resemble the cases in the second group in that they involved employer conduct that demonstrated anti-union animus. See Conrad,
We do not mean to imply that the mere allegation of anti-union animus necessarily provides a federal court with jurisdiction to hear an otherwise minor dispute. See Northwest Airlines,