Castle, Chief Judge, and Hastings and Kerner, Circuit Judges. Kerner, C.j., dissenting.
This case arose under the Railway Labor Act, 45 U.S.C. § 151 et seq., and concerns the obligation of the defendant railroad to employ firemen, members of the plaintiff brotherhood (BLF&E), on a switching locomotive which is operated for the railroad's parent company, United States Steel Company, within the latter's Gary, Indiana plant. The railroad claims that, pursuant to the collective bargaining agreement, as modified by Arbitration Award No. 282, issued pursuant to Public Law 88-108, 77 Stat. 132, it need not employ a fireman on the switching locomotive. The BLF&E, on the other hand, argues that the award did not modify the National Diesel Agreement or the collective bargaining agreement in "full crew" states such as Indiana.
The BLF&E relies heavily on the recent case of Bangor & A.R. Co. v. Brotherhood of Locomotive Firemen and Enginemen, 253 F. Supp. 682 (D.D.C. 1966), affirmed in part and reversed in part, sub nom, Brotherhood of Railroad Trainmen v. Akron & B.B.R. Co., 385 F.2d 581 (D.C. Cir., 1967), cert. denied, 390 U.S. 923, 19 L. Ed. 2d 983, 88 S. Ct. 852 (1968), to which both plaintiff and defendant in the instant case were parties. The court there dealt with the similar problem of whether Arbitration Award 282, which by its terms was to last two years, and had by then expired, permitted the railroads to continue using the procedures established by the award to abolish firemen's jobs. The district court in the instant case properly summarized the holding in Bangor :
"There the Court of Appeals held, in essence, that the Arbitration Award was not part of the work rules or collective bargaining agreements between the parties, but rather, it had established a method, which terminated with the award, for changing these agreements. It held that those jobs abolished during the period of the award did not have to be reestablished but that the procedures of the award were no longer available to the railroads. It further held that 'any new runs created after Award 282 are subject to the National Diesel Agreement, and its requirement of a fireman on each engine crew. Moreover, the National Diesel Agreement is in effect even though the only reason why a change in its work rule was not made under the Award during its lifetime was the fact that the change was blocked by a state's full crew law.' The Supreme Court denied certiorari on January 29, 1968."
The district court dismissed the suit on the ground that it had no jurisdiction since the dispute before it was "minor" rather than "major" and therefore exclusively within the jurisdiction of the agency created by the Act. Since we agree with the district court that the dispute in the instant case is "minor," and therefore the federal courts are without jurisdiction, we find it unnecessary and inappropriate to consider the merits of the controversy, namely, whether or not the agreement, as it now stands, permits the railroad to operate the switch locomotive without a fireman. Rather, we shall deal only with the determination that the instant dispute, within the meaning of the Act and the cases interpreting the Act, is "minor."
In this regard, a short look at the history of our national railway labor policy is necessary. In 1926, Congress first set up the machinery and the procedures which are embodied in the Railway Labor Act, in order to lessen the threat to interstate commerce posed by strikes in the railroad industry. The Act and the case law dealing with it recognize the basic difference between two classes of labor disputes: the so-called "major" and "minor" disputes.
"The first relates to disputes over the formation of collective agreements or efforts to secure them. They arise where there is no 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, 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 general, the difference is between what are regarded traditionally as the major and minor disputes of the railway labor world." Elgin, Joliet & Eastern R. Co. v. Burley, 325 U.S. 711, 723, 89 L. Ed. 1886, 65 S. Ct. 1282 (1945).
The consequences of determining whether a dispute falls within one class or the other are quite significant and, in fact, determinative of the case before us. If a dispute is "major," it must be resolved under the procedures prescribed by § 6 of the Act, 45 U.S.C. § 156, under which notice must be given, followed by negotiation, mediation by the National Mediation Board, voluntary arbitration, possible conciliation attempts by the President (by a Presidential Emergency Board), and finally, if no agreement can be reached, by self-help by the parties. "Minor" disputes, on the other hand, must first go to negotiation, and if that fails, then to binding arbitration by the National Railroad Adjustment Board (NRAB) or, alternatively, by a special Board of Adjustment.
The reason for the difference in treatment between the two types of disputes was the judgment of Congress that "minor" disputes were not of sufficient importance to justify a railroad strike with its consequent interruption of interstate commerce. Thus, a strike over a "minor" dispute can be enjoined to protect the jurisdiction of the NRAB, Brotherhood of Railroad Trainmen v. Chicago R. & R.I.R. Co., 353 U.S. 30, 1 L. Ed. 2d 622, 77 S. Ct. 635 (1957), while a strike over a "major" dispute can not be enjoined. Order of Railroad Telegraphers v. Chicago N.W.R. Co., 362 U.S. 330, 4 L. Ed. 2d 774, 80 S. Ct. 761 (1960). Moreover, the statutory procedures are exclusive and "the right of one party to place the [minor] dispute before the Adjustment Board, with or without the consent of the other, has been firmly established. . . . And the other party may not defeat this right by resorting to some other forum." Brotherhood of Locomotive Engineers v. Louisville & N.R. Co., 373 U.S. 33, 38, 10 L. Ed. 2d 172, 83 S. Ct. 1059 (1963).
We come, then, to the instant case and the facts leading up to it. Congress passed Public Law 88-108 in order to prevent a threatened nation-wide railroad strike occasioned by the railroads' notice that they planned to eliminate firemen's jobs on freight and switching engines. Under the Law, Arbitration Board 282 was established and Arbitration Award 282 was issued, to be effective from January 25, 1964, through January 24, 1966. The effect of the award after its expiration was the subject of the Bangor litigation, previously discussed. The BLF&E, in the instant case, contends that Bangor is res judicata to the instant case.
However, both parties agree that if the dispute is "minor," the federal courts are without jurisdiction to grant any relief, whereas if the dispute is "major," any changes in the rules and working conditions embodied in the agreements between the parties must be enjoined until all statutory procedures are completed. Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 81 L. Ed. 789, 57 S. Ct. 592 (1937).
We find that the reasoning of the cases discussed and the policy of the Railway Labor Act compel the conclusion that the instant dispute is "minor" and not "major." First, the present controversy can be solved by an administrative interpretation of the existing agreement in light of Award 282. Although the holding of the District of Columbia Circuit Court of Appeals in the Bangor case may control part of the instant dispute, the agreement must still be applied to the facts presented.*fn1 Second, neither the BLF&E nor the railroad is seeking a new agreement; rather, they are each asserting rights under the present agreement as each party interprets it. Third, the nature of this controversy is such that the policy behind our entire system of railway labor law precludes the possibility of the use of a strike -- with its consequent interference with interstate commerce -- to settle the dispute. Rather than seeking a change in the present rights of the parties, the railroad here is demanding, in good faith, only what it believes its rights are under the terms which have been previously bargained for or arbitrated.
In short, this is not a situation where "there is no such agreement or where it is sought to change the terms of one"; rather, this case involves the issue of "whether an existing agreement controls the controversy." Elgin, Joliet & Eastern Ry. Co. v. Burley, 325 U.S. 711, 723, 89 L. Ed. 1886, 65 S. Ct. 1282 (1945). As such, the dispute is "minor" and the federal courts are without ...