UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: October 23, 1974.
UNITED TRANSPORTATION UNION, APPELLANT
PENN CENTRAL TRANSPORTATION COMPANY: GEORGE P. BAKER, RICHARD C. BOND AND JERVIS LANGDON, JR., TRUSTEES
Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 73-2324.
Aldisert, Adams and Rosenn, Circuit Judges.
Author: Per Curiam
Opinion OF THE COURT
This appeal by the United Transportation Union (Union), bargaining representative of certain trainmen (including conductors, brakemen, and locomotive firemen) employed by the Penn Central Transportation Company (Company), is from the order of the District Court for the Eastern District of Pennsylvania denying injunctive relief against the Company's abolition of certain work assignments of its employees. The effect of these changes, the district court found, would make overtime work the rule rather than the exception at certain of the Company's yards.*fn1 The Union contends that this action of the Company has generated a "major" dispute under the Railway Labor Act, 45 U.S.C. § 151 et seq. (1970), and that an injunction should issue to maintain the status quo pending the dispute's resolution. The Union further contends that, even if the dispute in question were classified as "minor," the district court erred in holding that since the dispute had not been submitted to the Adjustment Board, and since the Union was seeking such relief independently of any suit for equitable relief by the Company, it did not have the power to issue an injunction to maintain the status quo.
When the nature of a dispute is "major" under the Railway Labor Act, supra, neither party may change the status quo without complying with the procedures of section 6 of the Act.*fn2 An injunction may be issued to protect that status quo. United Transp. Union v. Burlington-Northern, Inc., 458 F.2d 354, 357 (8th Cir. 1972). Thus, if the dispute in question is "major," the district court erred in not granting the injunction.
After carefully considering the record, briefs, and oral argument, we agree with the district court that this is not a "major" dispute under the Railway Labor Act. This court, in Baker v. United Transportation Union, 455 F.2d 149, 154 n.11 (3d Cir. 1971), has characterized the distinction between "major" and "minor" disputes as follows:
Under the Act, a major dispute is one arising out of the formation or change of collective agreements covering rates of pay, rules, or working conditions. Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 722-727, 65 S. Ct. 1282, 89 L. Ed. 1886 (1945). A minor dispute involves the interpretation or application of a collective agreement and under § 3 of the Act is subject to binding interpretation by the Railway Adjustment Board. Elgin, J. & E.R. Co., supra, 325 U.S. at 722-727, 65 S. Ct. 1282.
The Union vigorously contends that the abolition of certain job assignments by the Company, thereby causing "the remaining crews to work substantial overtime on a regular basis," is in contravention of three provisions of the collective bargaining agreements "which if allowed to continue would represent a clear attempt to change the collective bargaining agreements as far as working conditions of its employees."*fn3 The Company, with equal spirit, asserts that what it has done is sanctioned by other provisions of these agreements.*fn4
In Local 1477 United Transportation Union v. Baker, 482 F.2d 228, 230 (6th Cir. 1973), Judge Hastie, sitting by designation, in seeking to resolve a similar conflict concluded:
Confronted by such opposing characterization of particular disputes, the courts of appeals have consistently ruled that if the disputed action of one of the parties can "arguably" be justified by the existing agreement or, in somewhat different statement, if the contention that the labor contract sanctions the disputed action is not "obviously insubstantial", the controversy is within the exclusive province of the National Railroad Adjustment Board.
The Union contends that the Baker test is inconsistent with the guidelines of Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 89 L. Ed. 1886, 65 S. Ct. 1282 (1945), in determining whether a dispute is "major" or "minor." We believe that it is not inconsistent and we agree with the majority of the courts of appeals that the "obviously insubstantial" test is the appropriate one to use.*fn5
The district court found, and we agree, that the Company's contention that the collective bargaining agreement sanctions the disputed changes is not "obviously insubstantial" and the dispute is a "minor" one within the meaning of the Act. The status quo provision of section 6 does not apply to "minor" disputes and a party may effect a change pending resolution of the dispute by the Adjustment Board. Brotherhood of Locomotive Firemen v. Southern Pac. Co., 447 F.2d 1127, 1132 (5th Cir. 1971); Hilbert v. Pennsylvania R.R., 290 F.2d 881, 884 (7th Cir.), cert. denied, 368 U.S. 900, 7 L. Ed. 2d 96, 82 S. Ct. 174 (1961).
The Union also contends that the district court has the power to issue an injunction to maintain the status quo and prevent irreparable injury pending the resolution of this dispute by the Adjustment Board. The Union, however, has not requested such temporary relief; it has not even declared its intention to submit the dispute to the Adjustment Board. Rather, the Union has requested an injunction to compel the maintenance of the status quo by the Company until it complies with the procedures of section 6. Even if the Union had requested temporary relief pending resolution of the dispute by the Adjustment Board, such relief would only be granted to preserve the jurisdiction of the Adjustment Board. Westchester Lodge 2186, Brotherhood of Ry. Clerks v. Railway Express Agency, Inc., 329 F.2d 748, 753 (2d Cir. 1964). When, as here, the Union has not followed the grievance procedures in the contract, has not submitted the dispute to the Adjustment Board nor indicated any desire to do so, and has not engaged nor threatened to engage in a work stoppage, the issuance of an injunction would tend to defeat, not preserve, the jurisdiction of the Board. Westchester Lodge 2186, supra.*fn6
The order of the district court will be affirmed.