*1 directing appellant ment and order Board has af- that We observe grievances Regional to arbitration Director’s decision submit firmed the agreement. parties’ dismissing accordance with clarification the Union’s unit petition appears that petition. It Affirmed. bargaining unit requested de- (or expanded) scription be “clarified” hourly Company’s rated
to include the Corporate Cen- employees its Midland at Township in addition
ter Williams hourly employees in Midland. rated copy a include The record does decision, Regional but the Director’s affirming the dismissal Board decision EXPRESS, INC., Plaintiff- pe- a dismissal states Appellant, grievance “premature.” tition as appellee to have arbitrated seeks RAILWAY, AIR BROTHERHOOD OF alleged performance of is based CLERKS, LINE AND STEAMSHIP bargaining the Midland unit work at HANDLERS, EXPRESS FREIGHT al., re- Corporate EMPLOYEES, award Center. seeks AND et STATION Defendants-Appellees. performance quiring work employees now within No. 71-2212. presumably would unit. The Union Appeals, United States grievance if the unit were withdraw the Fifth Circuit. grievance Accordingly, expanded. if the 1,May 1972. Union, is resolved favor of petition
unlikely for unit clari- will be resubmitted
fication placed before issues
Board. petition unit clarifica-
Board necessarily same as
tion are not by the must be considered those which inconsistency arbitrator, no and we see petition
between the dismissal order to arbitrate
and the court’s
grievance. ques- Appellant no factual has raised hearing by require a which would
tions Court.
the District Fed.R.Civ.P. conclusions law
Since the court’s judg- summary
correct, we affirm grievance asserting tified the National Labor Relations IUE filed a bargaining repre- employees engineering Board as exclusive in the lab- certain ; oratory plant repre- question, lists sentative at the among Federation, union, those for which IRE has units another sented production been certified unit of “all a which had been certified as exclu- employees” bargaining representative and maintenance sive a unit plant arose, employees, salaried, “but where the “all technical” excluding excluding production technical . salaried and mainte- “all employees.” employees, pro- performing also con- nance” were grievance, procedure for the use West- tains and maintenance work. duction inghouse dis- of arbitration in case of unresolved arbitrate on the refused to putes, including involving controversy presented ground the “in- those terpretation, application representation vio- National or claimed matter for the agreement. lation” of the Board. Labor Relations *2 Atlanta, Ga., M. Kelso, Arthur Charles plaintiff-
Wisehart, City, York New January Wolfe, apparent York appellant; New tive since recognition 1967. In Peter G. Ga., changing times, Atlanta, City, Phillips, & Fisher provide extent tract some undertook to counsel. opera- for a smooth transition rail C., Washington, Highsaw, D. James L. agree- to OTR runs. Rule 8 of tions Joseph City, Fleming, York David J. New provides: ment Donlon, Jacobs, Atlanta, Ga., J. William Railways, Counsel, Brotherhood of *3 Gen. By agreement with the General Chair- defendants-appel Ill., Rosemont, etc., in the over-the- men Districts in which lees. runs, operated, pro- road truck are may 4, 5, be visions of Rules suspended 6 and 9 BELL, and AINSWORTH Before special and will Judges. GODBOLD,Circuit governing of hours serv- be established overtime, ice, pay of over- and of basis Judge: GODBOLD, Circuit the-road truck runs. labor action involves This thoroughly attempt explain In an to more (REA), Railway Express, Inc. meaning par- and of Rule force by governed express the Rail- carrier an agreed following ties also “Memo- seq., Act, way et Labor U.S.C. § Understanding” ap- randum plication as to operating personnel represented and its rule: Railway, by Airline Brotherhood of Handlers, Clerks, Freight Steamship and agreed and under It is understood that (BRAC). Express Employees and Station application of over- Rule 8 The concerned the-road truck continue runs will by trucking operations. Dur- REA its operate in IX accordance with Article the course their Agreement. September 1, seeming impasse, reached a and Arrangements concerning operation of REA changes instituted the by agree- new runs will be worked out response in its In own favor. ment between the Chairmen General called a REA filed suit BRAC strike. Company except representatives and injunc- seeking * * * * an federal district court that: against the BRAC counter- strike. the event to make failure requesting claimed a status order. agreement concerning operation of validity question of The the strike’s (45) days forty-five run within upon turns the determination whether given after notice is to the General underlying “major” dispute is —in repre- Chairman General Chairmen permissible case the strike is which affected, —or senting employees to be BRAC “minor”—in which circumstance the matter party be referred proceed REA cannot strike with but must binding to final resolution Rail- before the National arbitration in accordance with Sections and/or Adjustment full After a road Board. Act, amended. Labor as evidentiary hearing unpub- and in an deter- issues submitted such opinion the held the lished District any question mination shall not include major. dispute to reverse. We Company to es- engaged many years the run confined tablish but shall be For REA has freight. implementing hauling Initially the manner of the run. its activities rail, exclusively on but were carried gave rise to Prior to the years operations have in more recent rail litigation, REA had been BRAC impractical and uneconomical. become able to has, therefore, more shifted necessary implement a sub- freight operations rail more At first stantial number of runs. OTR (OTR) to over-the-road runs. truck is, instituted; “slip-seat” runs were governed terminals present to a At run between Philadelphia a truck effec- Boston a collective traveling power since leave each terminal of such and contended that would proposals pay and trucks would toward the other. The two affected rates approxi- working prearranged point major dispute was at a conditions a meet meaning midway mately termi- involved between the two within Rail- way Accordingly, exchange nals, trailers, return Act. said Labor union, could made home bases. their pursuant 6 of the mediation to section paid amount The drivers were a fixed by agreement. union there- Act or trip. slip- per For reasons round several seeking to fore served section 6 notices seating In the words was inefficient. jurisdiction invoke the of the National Court, of the District Railroad Mediation REA coun- Board. If broke unable one driver down was minor, tered, stating that the was time, switching point to make refused submit to mediation. driver time the other had to waste April ap- date On as the awaiting in- time his arrival. proached on which *4 switching operations in volved was occur, BRAC called a strike. Two lost, that, also and REA at least found days complaint in later REA filed instances, “trip in rate” some the fixed the United for the States District Court agreed upon permit did them to Georgia. Northern District That of always get eight a full hours’ work restraining temporary court or- issued eight equivalent pay. the of hours’ enjoining strike, compelling der the the shortcomings, consequence As a of such allowing parties negotiate further, and began renegotiating REA and BRAC the implement disputed REA to the operation of the OTR restruc- runs. The hearing. pending risk full its own turing usually of involved the elimination changes. implement REA did the arrangement slip-seat provided and through later, for a run full evi- Neces- Several weeks after a one truck. dentiary hearing, sarily layover de- had to made in the District Court be procedures, service, indeed hours of termined that and rates pay. agreed upon major, accordingly All the un- and held that matters were run-by-run During automatically on a the exist- basis. ion was status entitled to a quo order, is, injunction contract, ence of the 1967 forbid- some 700 an ding were restructured in At fashion. REA’s continued this restoring operations rail the same time were con- runs. But rather than tinuing dwindle, stayed quo and runs were OTR point, status at that the court pending appeal. routes. an- substituted inefficient rail its order The court Changes working following in conditions which nounced the rationale: arose on account of of an the substitution Though so, not called to do again OTR run for a rail route were court, hearing the evidence out ad worked on an hoc basis for each (1) case, expresses opinion: run. making that, long run, in the 1970, proposed proposed by plaintiff In the fall of REA existing distinguished (as substitute an OTR run for an man- here from the rail run in the they northeastern United ner in which were existing made) probably and to States restructure interest in the best geographical parties; truck runs re- de- (2) same of both gion. proposal, probably With to this fendant union has no serious objection se, provided were unable per to reach an accord to them pay, layovers, implementa- on rates of the manner of their rights. agreed upon. After In view domicile tion can be lengthy negotiations 13, April opinions ordered and on these court has 1971, re- served intended most notice restoration status luctantly com- it felt institute because changes. pelled union denied the existence to do so. therefore that, to issue a or to refuse if to issue recommends to the conclusions, they pro- Toledo See Detroit & order. with these 2029, Lodge supra; attempt Line, Shore to reach Itasca all haste to ceed with Clerks, Ry. v. agreement. etc. also occurred Broth. of and S. S. an It has (1968); REA, reached conclusions 391 F.2d 8th the court Georgia may be order Switchmen’s Union Central in this damage Ry. Cir.), may (5th wrong. so, Co., cert. have F.2d 213 If much steps denied, 15 L. many 86 S.Ct. accrued and backward (1965). The court also be- Ed.2d been taken. have any, that, pending appeal, if lieves chang Major disputes arise over danger injury irreparable con rules es greater plaintiff to defendant. than change is ditions where method position af- If of defendant existing provided con labor in the always exact restitution firmed it can supra. Elgin, dis g., Minor tract. E. of these consid- in the end. In view regarding applica putes are those give erations, par- and in order to tion or collec suggestions time to consider ties g., E. St. tive contracts. court, made is therefore OR- Louis, Yard F. R. Co. v. Railroad S. & T. of this DERED that order execution Cir.), masters, cert. F.2d 749 days stayed period for a of ten denied, 84 S.Ct. U.S. ruling herein, any appeal until a Ry. (1964); Corp. L.Ed.2d Rutland should one be filed. Eng., 307 v. Brotherhood of Locomotive *5 question The is before (2d 1962), denied, 372 F.2d 21 Cir. cert. erred in whether the District Court 954, 949, 978 U.S. 83 9 L.Ed.2d S.Ct. major. dispute is determination that (1963). consequences from that Several flow implemen- proposed In this case finding. major First, to a parties tation of 17 OTR runs. dispute, provides that fail the Act agree meth- could the manner negotiate ure to upon implementation, od of BRAC’s voluntarily may submit the unilaterally im- refusal arbitrate REA Railroad Mediation Board. 45 National plemented consequence of the runs. As a 155, party re U.S.C. If either §§ basis, action, various fuses, is Board without Mediation service, layovers, domicile, and hours of power to decide or force seniority rights posi- REA’s obtained. they arbitrate, are free accompanying tion is Rule and its that 8 Elgin, help. Id.; to self to resort Joliet Understanding make Memorandum of Ry. Burley, & Eastern Co. v. 325 U.S. provision ac- and that for such 711, (1945). 65 S.Ct. 89 1886 L.Ed. aising cordingly any dispute out of the Finally, upon par request one of the view is runs is minor. BRAC’s ties, required the federal issue court is that the terms of the Memorandum 156; a status order. 45 U.S.C. § resulting applies Rule 8 Detroit & Line R. Co. Toledo Shore R. runs,” of “new Transportation Union, v. United is “new” runs issue one 17 (1969). 325 90 S.Ct. 24 L.Ed.2d restruc- while the other 16 constitute hand, the other if the is mi On Moreover, tured BRAC runs. provides nor the Act failure says runs are that even if 17 of the negotiated ei arrive at settlement meaning “new” of the Memo- within the jurisdic may party request ther prescribed randum there is no method Adjustment chang- tion of settling Board invoked. disputes over therein for Elgin, supra. case the seniority rights, domicile, layovers, In such nonre es in questing party compensation must submit arbitra specific paid driv- and the tion, Id.; right distinguished help. there- there of ers as from the basis is self no Id. And the court has discretion of. federal
231
chang-
accepted
That sentence could mean that no
BRAC’s
District
Court
es in
8 nor
ex-
that neither Rule
on runs
characterization
governs restructured
istence on the effective date of the con-
the Memorandum
negotiation
pro-
tract can be made without
runs and
OTR
a new
unless
them-
posed
and that
contract
the runs
16 were restructured
runs
restructured,
selves
in which case
a ma-
far
those were concerned
shortly,
governed
jor dispute
Put
“new runs”
become
was involved.
special
pro-
of Rule 8 and
that 16 of
we cannot
posed
way inti-
definitely
in no
Memorandum. We
fall without
accompanying
interpretation
mate
is cor-
that the above
of Rule
and its
ambit
arguably
rect,
merely
but
note that it is
Industrial
Memorandum.
In United
Trustees,
construc-
so.
be that
correct
Workers etc. Board
Court,
1965),
tion is
or
the District
F.2d
Chief
above,
possible
Judge
one
aptly
noted
the test
construction
Brown
stated
meaning
determining
particular dispute
from either.
true
different
whether a
Rule and of the Memorandum
or minor:
grist
of arbitration.
things may
At the outset
several
arguable
Having found that there
anis
briefly
is,
emphasized. The first
invoking
provi-
basis for
Rule 8 and its
course,
that if
its terms
reason-
suspending
sion for
Rules
the terms of
therefrom,
implication
collec-
able
4, 5,
find
and we
agreement apparently
tive
affords
(Rule 4),
over
hours of service
basis
arguable
action,
some
basis
pay (Rule 9),
6),
holidays (Rule
contract,
(Rule 5) arising
imple-
overtime
out of
question of
who is
—Carrier
mi-
mentation of the 17
runs is
by the
Union—-is for determination
nor.
Adjustment Board,
Railroad
having jurisdiction only
equi-
to mold
position
BRAC falls back
preserve
relief to
table
applicable
that even if Rule
it does
Adjustment
pending
Board decision.
seniority,
contemplate
*6
(footnotes omitted).
layovers,
domicile,
compen
specific
distinguished
sation as
from a basis
key
test
“ar
The
word in this
is
The District
did not
thereof.
Court
arguable
guable.” If the
finds an
court
again point
reach this issue. We
out
expertise of
basis it must defer to the
that
over such
con
Adjustment
The
Board.
District
dispute
minor
stitutes a
if
ba
denied the existence
such a
settling
arguably
dispute
such a
are
con
holding,
above,
sis,
that
noted
tained within the collective
meaning
plain
dis
of the Memorandum
agreement. Rule 8
the meth
establishes
tinguishes
opposed
to
between “new”
by
od
which
in rates of
“existing”
runs.
In
view is clear
our
overtime and hours of service are to be
meaning.
plain
that there is no such
made when such are called for in connec
sentence of
the Memorandum
first
implementation
tion with
of a new OTR
states:
dispute
run.
compensation,
over
With
agreed
un-
is
and understood that
changing
hold
we
that
application
der the
of Rule 8
“hourly
“trip
a
an
is
from
rate” to
rate”
continue
over-the-road truck runs will
arguably
change
in
a
basis of
within
operate in
Article
to
accordance
regard
scope
In
Agree-
of Rule 8.
to
September
IX of the
seniority
ment.
and domicile Rule
provides
12(a)
involving
position may
Rule
1.
full:
a
be transferred
“(a)
seniority
Agreement recognizes
This
from
that
one
district
to another
departments may
more
two or
offices or
after conference
positions
Management
duly
be consolidated
or work
and the
accredit-
and/or
Consolidations) arguably
(Transfers
REA asks that this court issue an arbi
applies.
provides
by
parties,
a method
That
rule
tration
ac
order. The
their
settling
(similar
leading
8)
up
litigation,
to
in Rule
to this
have
arising
seniority
disputes
possibility
out of
made it clear that
there is no
“positions
negotiated
.
.
from one
transfer of
.
of a
settlement.
Since
seniority
dispute
right
minor,
to another.
...
REA
to
district
is
has the
compulsory
en
institute
arbitration.
To
Moreover,
Memorandum of Under-
sure that arbitration is
forthwith we
had
standing
applicability of Rule
as to the
direct
to vacate
find
below
its
procedure
for establish-
states
ing
is
and to is
“
concerning
rrangements
opera-
[a]
an
to
sue
order
District
arbitrate.
tion of
is
out
therein.
new runs”
set
point out
Court was careful
to
“arrangements”
Arguably
in-
the word
rescinding
status
uni
order
REA’s
layovers,
seniority, domicile,
cludes
implementation
pro
lateral
compensation.
Therefore,
might
greater
posed
ir
runs
cause far
arrangements
over
minor.
is
reparable harm
to
to
than
BRAC.
agree. Having
We
sum,
result
In
all
minor,
issuance of
order
from
of the
discretionary.
Detroit &
becomes
See
governed
arguably
8, by
ac
Rule
Lodge
Line, supra;
Toledo Shore
Itasca
companying Memorandum,
Rule
Broth,
Clerks,
Ry.
and S. S.
Accordingly,
dispute is
entire
REA, supra;
etc. v.
Switchmen’s Union
minor.
(within
“position”
meaning
employees.
representatives
of the
ed
Philadelphia
32)
agree-
Rule
driver
make
the event of failure to
days
sixty (CO)
has been
to Breezewood
transferred
no-
within
after
ment
Pittsburg
given
Pur-
district.
to the General Chairman
tice
then,
representing
Rule
the drivers
suant
the em-
General Chairmen
Philadelphia
formerly
ployees
would have
based
the contem-
be affected
Pittsburg
right
plated change,
and to
transfer
refer-
matter
seniority rights.
binding
party
maintain their
Accord-
to final
red
seniority dispute
ingly, any
imple-
over
with Sections 3
accordance
resolution
Philadelphia-Pittsburg
mentation
Labor Act as
7 of the
and/or
logic applies to
run minor. The same
issues
for such
submitted
amended.
any ques-
the other runs.
shall not include
determination
Company
tion as to the
finding
that the
3. The District Court
change but
be confined
shall
make
major,
reasoned further
implementing
the manner of
* * *
wrong
[finding]
if this
“even
templated change.”
prevail nevertheless cannot
[REA]
(e)
(b) through
In addition subsections
(memo
its contention that
contemplate
provide for
of the Rule
*7
randum)
what it has unilater
authorizes
by
employees
in
who
domicile
by
ally
statement
trial
This
done.”
seniority
protect
in
their
move
order
question
judge
relate
does
rights.
major
minor but
is
or
whether
power
im
governs
rather
of REA’s
arguably
issue
Rule
That
upon
plement
BRAC’s re
by
the new runs
seniority rights
change
im-
in
caused
assuming
arbitrate even
BRAC
fusal
plementation
is-
here at
the 17 runs
Having
required to
by example.
arbitrate.
Prior
sue
best
is
shown
minor,
dispute is
in that
that
the entire
proposal
run
an OTR
there was
REA’s
imple
Pittsburg
nil
incumbent
Philadelphia
with
and
between
argu
proposed
Breezewood,
occurring
mentation of
slip-seating
provisions,
ably governed
we
boundary
contract
Pennsylvania,
line between
authority
seniority
in
find
REA’s
Board
Philadelphia
Pittsburg
action
and
Ehginemen
Firemen and
of Locomotive
a
the old run
districts.
under
Thus
Co.,
Philadelphia
F.2d 1327
seniority
v.
Pacific
Southern
in
with
driver
1971),
Louis,
(5th
in
S.F. &
Philadelphia
St.
leg
Cir.
handled
Yardmasters,
Ry.
v. Railroad
T.
Co.
with
driver
while another
Breezewood
denied,
(5th Cir.),
leg.
377 U.S.
F.2d
cert.
Pittsburg
in
the other
drove
pending
appeal,
this
direct
we
application
existing
or
collective bar-
entire
order be
vacated.4
gaining agreements. Where a minor
involved, compulsory
Reversed
remanded with direc-
arbitra-
Adjust-
tions.
before the National
general
required.
ment Board is
For a
discussion of the difference between ma-
Judge (dissent-
AINSWORTH, Circuit
jor
Elgin,
disputes,
and minor
see
Joliet
ing) :
Ry. Burley,
& Eastern
v.
principal
here is whether
issue
S.Ct.
parties,
carrier to
and that
conditions,
em-
agreement together
“as
the last clause
or
with
agreements”
Seventh,
Act
either
Labor
of the
bodied
of §
Seventh), supra, permit
or
(45
prescribed in
45 U.S.C. §
U.S.C. §
prescribed in such
manner
make the
“in the
it
changes
” ;
agreements
irrespective
kind
dis-
.
of what
.
.
might
It
pute
be involved.
otherwise
(2)
proposes are
any
dispute
event
that the
also asserts
(embodied)
prescribed
only in-
since it
minor one
can
be a
agreement
least
or at
bargain-
interpretation of the
an
volves
so;
“arguably”
are
ing agreement.3
(3)
expressly au-
are
if the
questioned
respect to all of the
With
(embodied) in the exist-
thorized
simply
runs,
two,4
cannot
save
the court
ing agreement
they
au-
are also
accept plaintiff’s
contentions
foregoing sec-
thorized under the
changes unilaterally proposed (and now
RLA;
tion of the
unilaterally implemented)
the carrier
only “arguably”
(4) if the
are
arguably
expressly
permitted
even
or
ex-
or embodied
authorized
agreement
par-
under the
between
agreement
isting
interpreta-
an
Instead,
under the RLA.
ties or
necessary to deter-
becomes
tion
major dispute is
that a
court concludes
they
author-
mine
are so
whether
involved, that
carrier had no author-
embodied,
ques-
ized and
ity
implement
these
under
Act to
interpretation
of the
tion
or
either mediation
without
ipso
facto classified
tract
union, and that fur-
with the
dispute
a
the Act as
minor
enjoined
ther
must be
might
be),
(whatever it
otherwise
Detroit &
restored.
compulsory arbitra-
and therefore
Trans-
Toledo Shoreline R. R. v. United
of the
tion under either section 3
portation Union,
90 S.Ct.
mediation,
Act,
is all
rather than
(1969).
ment as how short, changed require- eliminate the Certainly so would cannot be respecting agreement of the mainte- ments Act is silent. De- where quo. nance of Detroit See R. R. v. Unit- troit & Toledo Shoreline 142, Union, Toledo v. United Transportation & Shoreline R.R. ed supra. Transportation Union, (1969).7 L.Ed.2d 325 S.Ct. reading Finally, memoran- even (memo- agreement Fourth: If it, plaintiff it nowhere dum as reads plaintiff randum) means what con- suggests says cir- that under tends, provision al- and if such were implement can cumstances carrier lowed, it would also contravene proposed arbitra- the run tion, before Congress by making mandate of arbi- done in this ease. as was major disputes compulsory, tration agreement (memo- Second: randum) If the first, whereas section of the RLA working did mention condi- specifically purposely makes such express- tions and rates of ly voluntary (see & arbitration Detroit not), impliedly (which it does Transportation Toledo R.R. United Union, supra). provide implementa- and if it did change would Such later, still tion first and arbitration negotiations respecting therefore take would not suffice. It would be changes working pay conditions and agreement agreement to make an out the hands of presently in the no future. This is thereby arbitrators, turn them over to “agreement” at it is cer- all. At least allowing arbitrators, effect, to tainly kind con- par- make a contract between 2, Seventh, templated in section of the ties. would, Act. To hold otherwise as to short, plaintiff proposes In what away disputes, Act do with the away procedures prescribed do with the by postponement. substitution and the RLA If substitution. such ac- agreement (memoran- Third: If the allowed the were whole scheme dum) propose plaintiff does what naught the Act would be set at and all (as preceding tends set forth in the the evils which it seeks to eliminate re- paragraph) provision would be void and public. as contraven- unenforceable visited and the bargaining agree- 7. This case is not like Rutland clause of the collective Corp. Engi history Here, past v. Brotherhood of Locomotive ment. of the REA (2d neers, 1962), involving 307 F.2d cert. and BRAC conduct the restruc- turing overwhelmingly supports denied U.S. L. S.Ct. of runs (1963), Ed.2d on which REA so heav the conclusion that REA has no such ily Rutland, right unilaterally runs, uni relies. the railroad reschedule thus laterally changing working rescheduled train runs with a conditions. The testi- displace employment mony years resultant loss of is that in recent between 600 personnel. Though ment no there was been 700 runs have restructured after express provision bargain negotiation in the collective ing agreement granting parties. history parties’ the railroads Thus right runs, relations, reschedule like Rule indicates past history provisions regarding re Court found that basis of and other parties might lations between the have be altered agreement, im made to reschedule runs an unilateral action. plicit managerial part prerogative Supreme has said in a As the *11 similar context:
somewhat processes
“The the Act would
mediation called if a
indeed become a sham carrier Act achieve what could orderly
requires the other be done
procedures.” Brotherhood Rail-
way, Steamship Clerks etc. Airline & R.R., 384 U.S. v. Florida East Coast
238, 247, L.Ed. 86 S.Ct.
2d 501.
Accordingly, respectfully dissent. I HENDERSON, Petitioner- Lee
Willie Appellee, Brushy Warden, TOLLETT,
Lewis S. Farm, Respondent- Mountain State Appellant.
No. 71-1451. Appeals,
United States Court
Sixth Circuit.
April