Castle, Chief Judge, and Kiley and Fairchild, Circuit Judges.
The plaintiff-appellant, Chicago, Milwaukee, St. Paul and Pacific Railroad Company, instituted this action in the District Court against the defendants-appellees, Brotherhood of Locomotive Firemen and Enginemen (BLF&E) and the Brotherhood's Vice President, M.A. Ross, and General Chairman, W.H. Wilkerson. Subsequently, a motion by the plaintiff railroad to join the Brotherhood of Locomotive Engineers (BLE) as a defendant*fn1 was allowed by the District Court. The railroad's complaint sought injunctive relief against a threatened strike or work stoppage by BLF&E. The court issued a temporary restraining order which also required the railroad to maintain the status quo, and following a combined hearing on the issuance of a preliminary injunction and upon the merits, made and entered findings of fact and conclusions of law upon which it based a judgment order dismissing the railroad's complaint. The railroad appealed.
The District Court found that the dispute out of which the litigation arose related to and was generated by an attempt by the railroad, at the request of BLE, to cancel a November 1, 1956, tri-partite agreement between the railroad, BLF&E and BLE governing the work assignment seniority of engineers and firemen at Three Forks, Montana, in the railroad's East Rocky Mountain Seniority District, and to re-establish an engineer's extra board at the Three Forks, Montana, point on its lines. The court concluded that inasmuch as the dispute involved a change in working conditions of employees represented by BLF&E it was a major dispute within the meaning of the Railway Labor Act and since the mediation services of the National Mediation Board, invoked by BLF&E, had been exhausted without resolving the dispute the BLF&E was free to resort to self-help, and the court was without jurisdiction to grant injunctive relief, such jurisdiction having been withdrawn by the Norris-LaGuardia Act, 29 U.S.C.A. § 104.
The sole contested issue on appeal is whether under and for the purposes of the Railway Labor Act (45 U.S.C.A. § 151 et seq.) the dispute here involved is a "major" dispute or a "minor" dispute. If it is the latter the dispute is a matter subject to submission to the National Railroad Adjustment Board for final and binding resolution -- a form of compulsory arbitration -- and the Norris-LaGuardia Act does not bar injunctive relief. Brotherhood of Railroad Trainmen v. Chicago River & Ind. R. R. Co., 353 U.S. 30, 77 S. Ct. 635, 1 L. Ed. 2d 622.
The difference which distinguishes "minor" disputes, over which the National Railroad Adjustment Board has exclusive jurisdiction, from "major" disputes, the procedures for resolution of which are prescribed in § 6 of the Railway Labor Act, 45 U.S.C.A. § 156, is set forth in Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 722-724, 65 S. Ct. 1282, 1289-1290, 89 L. Ed. 1886. In Hilbert v. Pennsylvania R. R. Co., 7 Cir., 290 F.2d 881, 883, this Court characterized that difference as follows:
"'Major disputes' encompass those differences arising out of proposals for new contracts or of changes in existing contractual or legal obligations and relations. They arise where there is no collective bargaining agreement or where it is sought to change the terms of one. In such a case, the issue cannot be resolved by reference to an existing agreement.
"'Minor disputes', on the other hand, are grievances or other differences arising out of the application or interpretation of an existing collective bargaining agreement. The dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation. See Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 722, 65 S. Ct. 1282, 89 L. Ed. 1886."
But, as recently observed in Southern Railway Company v. Brotherhood of Locomotive Firemen and Enginemen, D.C. Cir., 127 U.S. App. D.C. 371, 384 F.2d 323, 327:
"This distinction, however, like many others in the law, is more easily stated than applied."
With the above quoted definitions and admonition in mind we turn to consideration of what the record shows with respect to the nature and background of the dispute here involved.
For many years prior to 1956, there existed on the Milwaukee railroad a seniority district known as the East Rocky Mountain Seniority District with headquarters at Three Forks, Montana. Railroad engineers on this seniority district are represented by BLE. Firemen on this district are represented by BLF&E. It has been the custom for employees hired as firemen, after training, education, experience and examination required by the railroad, to be promoted from firemen to engineers. After such promotion, however, employees serve as engineers only at such times as engineer openings are available, by virtue of seniority rules, and when no such openings are available, they serve as firemen. Upon such promotion, when the needs of the service required, firemen would serve first on the engineers' "Extra Board" and thereafter, when their seniority warranted, would receive permanent assignments as engineers. Engineers on the extra board had no permanent assignments but served when a regularly assigned engineer was unavailable for service due to sickness, accident, holiday, vacation, or other reasons.
Thus, for many years the interplay*fn2 between crafts of engineers and firemen, the promotion and demotion of engineers and firemen, their dual seniority rights, the ebb and flow or movement from the firemen's craft up to the engineers' craft, have been controlled by rules relating to extra boards.
In about 1956 work opportunities for engineers on the Three Forks engineers' extra board declined due to replacement of steam power by diesel power and other factors. The result was that engineers on the extra board had substantially less work opportunities. At the same time there were substantial employment opportunities for firemen who in general had less seniority than engineers. Upon request of BLE and after a vote authorizing such action had been taken of all firemen and engineers on the seniority district, BLE, BLF&E and the railroad entered into a tri-partite agreement which became effective November 1, 1956. The agreement provided, in general, that the engineers' extra board at Three Forks would be abolished and that the engineers on that extra board would work as firemen. When there was need for services of an engineer who formerly would have been taken from the engineers' extra board, the ...