Before CLARK, Chief Judge, SWAN and MOORE, Circuit Judges.
Appellants appeal from that part of the order which by mandatory injunction required them to restore and maintain the status quo ante until the provisions of the Railway Labor Act for settlement of the labor dispute that is the subject matter of the action shall have been complied with. The appellees have cross-appealed from that part of the order which granted a preliminary injunction, enjoining them from any strike or work stoppage during the same period.
Mandatory injunction reversed on appellants' appeal; preliminary injunction affirmed on appellees' cross-appeal.
SWAN, C. J.: These are cross-appeals from an order entered June 20, 1959 pursuant to an oral opinion of Judge Bryan. Both parties agree that the dispute between them is one within the scope of the Railway Labor Act, 45 U.S.C.A. § 151 et seq . and the court below so ruled. The case was heard upon affidavits and concessions in colloquy with the court. The facts as stated in Judge Bryan's opinion are substantially as follows:
The appellants are ten interstate railroad corporations each of which has a collective bargaining agreement with one of the appellee labor organizations (the other appellees being officers and members thereof). Each of the railroad carriers operates in the New York Harbor area one or more diesel powered tugs in the transportation of interstate commerce. The marine operations of appellants are an important factor in the financial success of their business and in the efficiency of the service rendered to the public. Any disruption of such operations would be disastrous not only to them but also to the metropolitan area they serve.
On June 10, 1959, each of the appellants posted a notice, effective at 12:01 a.m., June 15, abolishing the position of oiler on their diesel powered tugs. Previously the engine room of these tugs had been manned by an engineer and an oiler, the latter being sometimes called a fireman, as he is on steam operated tugs. Upon learning of the posting of such notices, appellee United Railroad Workers Division of Transport Workers Union of America, hereafter called T.W.U., by telegram dated 11:55 a.m., June 10, 1959, notified the seven appellants with which T.W.U. had collective bargaining agreements that it considered their action a violation of the agreements and had authorized a strike effective at 12:01 a.m., June 15, 1959.*fn1 After receipt of the strike threat, these seven appellants on June 11, 1959 made an ex parte submission of the dispute created by the threatened strike to the New York Harbor Marine Board of Adjustment as provided for in the applicable collective bargaining agreements. The other three appellants, The Long Island Railroad Company, The Pennsylvania Railroad Company and the Bush Terminal Railroad Company, made a similar ex parte submission to the National Railroad Adjustment Board, Fourth Division, Chicago, Illinois, as the collective bargaining agreements applicable to these three appellants did not provide for a special adjustment board. After submission to the appropriate Boards, the appellants filed the present suit to enjoin the threatened strike. A temporary restraining order was issued by Judge Murphy on the afternoon of June 11, 1959, and the plaintiffs' motion for a preliminary injunction was ordered to be heard on June 16, 1959. On that date the plaintiffs' motion came on before Judge Bryan, together with defendants' cross-motion for a mandatory injunction to restore the oilers to their former positions. Despite the temporary restraining order, a serious work stoppage did occur. The oilers who had been laid off began picketing piers where tug boats were tied up. Employees in other crafts refused to cross the picket lines and all railroad traffic by water in the Harbor area ceased to move. On June 19, 1959 Judge Bryan rendered an oral opinion and by order entered June 20, 1959, granted both plaintiffs' motion and defendants' cross-motion, both injunctions to remain in effect until the procedures of the Railway Labor Act, 45 U.S.C.A. § 151 et seq ., for settlement of the dispute had been exhausted. Plaintiffs have appealed from that part of the order which directed restoration of the abolished positions. Defendants have appealed from that part of the order which granted a preliminary injunction against a strike or work stoppage, but they explain that their appeal is merely to protect themselves in case the plaintiffs' appeal shall succeed. The order re-established the status which existed before the labor dispute arose and defendants are satisfied with that situation.
The Railway Labor Act as interpreted by numerous cases recognizes two types of disputes between employer and employees, "minor" and "major." The distinction between them is clearly set forth in Elgin, J.&E.R. Co. v. Burley, 325 U.S. 711, 722-724, and was approved recently in Trainmen v. Chicago R.&I.R. Co ., 353 U.S. 30, 33. As there stated, "The first step toward settlement of either kind of dispute is negotiation and conference between the parties." Minor disputes arise out of the interpretation or application of existing collective bargaining agreements and grievances arising therefrom, while a major dispute is one that arises from an intended change in agreements affecting rates of pay, rules or working conditions. The Act provides procedures for the settlement of either type in order to prevent the disruption of interstate commerce during its pendency. In the case of a minor dispute the parties are to confer and, if the dispute cannot be settled by conference, either party may resort to the appropriate division of the National Railroad Adjustment Board. 45 U.S.C.A. § 153(i).In a minor dispute the railway employer is under no duty to restore the status quo ante during its pendency. In the case of a major dispute there is such a duty, 45 U.S.C.A. § 156, and if the dispute is not adjusted by conference either party may invoke the services of the Mediation Board, or the latter may proffer its services. 45 U.S.C.A. § 155(b).*fn2
The appellants have consistently taken the position that as employers they have the managerial right (privilege) which the common law accords to an employer to discontinue an economically unnecessary position, unless the privilege has been lost by statute or by collective bargaining agreements with the unions. They assert that the Act has not curtailed this managerial privilege; that whether it has been lost by their agreements involves an interpretation of those agreements, and consequently the dispute is a minor one within the meaning of the Act. The appellees, on the other hand, contend that the railroads' action in abolishing the position of oiler on diesel powered tugs without prior notice to or discussion with the unions was a violation both of the collective bargaining agreements and of § 156 of the Act, and consequently the dispute is a major one. Appellees further argue that even if the dispute be considered minor, the railroads had a duty to negotiate under the Railway Labor Act before they unilaterally abolished the position of oiler. The latter argument assumes that the mere posting of the notices of abolition created a dispute. We think the assumption fallacious. No dispute existed until the unions voiced disapproval of the railroads' action. This they did by threatening to strike. They might, however, have acquiesced in the railroads' interpretation of the agreements and not sent a strike threat. Until management announced its decision, the unions had no grievance, and nowhere in the Act is to be found any intimation that management must consult with union representatives before taking such action. The appellees argue that if the railroads were permitted to treat every dispute of this nature as a question of interpretation of the pre-existing agreements, they could thus nullify and emasculate § 156 of the Act by asserting that their action was an exercise of their prerogative of management. The argument is answered to our satisfaction by the analysis of Judge Haynesworth in Norfolk & P.B.L.R. Co. v. Brotherhood of Railroad Trainmen, 4 Cir., 248 F.2d 34, cert. den. 355 U.S. 914, derived from the Cox and Dunlop article in 63 Harvard Law Review 389, 401, which explicitly delineates at pages 41-42 the different purposes underlying § 153 and § 156.
"All of such decisions when effectuated have a resultant effect upon working conditions and are of interest to employees and their representatives. They are none the less regarded as being within the prerogative of management alone to decide and effectuate in the first instance * * * If a matter falls within the second class of decision major dispute, under the Railway Labor Act and under the applicable agreements, the carrier can make no change without initiating negotiation by giving the notice required under Section 6 of the Act and participating in the subsequent procedures available in aid of settlement of a 'major dispute." * * *"
Primary jurisdiction to determine whether a dispute is minor or major resides in the agencies established by the Railway Labor Act. As to this the parties are not in disagreement. Appellant acknowledged it implicitly in their ex parte submissions to the Adjustment Boards. Appellees expressly acknowledge it in their Brief by the statement:
"The role of the Court is to protect the jurisdiction of the Railway Labor Act agencies which are the appropriate bodies to decide the issues herein and to vindicate the policies and procedures of the Railway Labor Act to permit them to be carried out effectively."
This view is correct as plainly indicated by Order of Conductors v. Pitney, 326 U.S. 561, where Mr. Justice Black, speaking for the Court said at page 567:
"* * * The factual question is intricate and technical. An agency specially competent and specifically designated to deal with it has been created by Congress. Under these circumstances the court should exercise equitable discretion to give that agency the first opportunity to pass on the issue. Certainly the extraordinary relief of an injunction should be withheld, at least, until then. * * * Only after the Adjustment Board acts, but not until then, can it plainly appear that such relief is necessary to insure compliance with the statute. * * *"*fn3
The Adjustment Board may decide (1) that the dispute is minor and that the Railroads' interpretation of the collective bargaining agreements is correct; or (2) that the dispute is minor but the Railroads' interpretation of the agreements is incorrect; or (3) that the dispute is major and the Adjustment Board has no jurisdiction. If the Adjustment Board decides that the Railroads' interpretation is correct, it is obvious that the district court has done an injustice to appellants by the mandatory restoration of the oilers to their former positions, for the railroads can never recover the wages they have been forced to pay. If the Adjustment Board decides that the Railroads' interpretation is erroneous, the oilers will suffer no injustice for ...