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January 13, 2004.


The opinion of the court was delivered by: NICHOLAS G. GARAUFIS, District Judge


Now before the court is the motion of Plaintiff International Brotherhood of Electrical Workers ("IBEW") for a preliminary and permanent injunction barring defendant Long Island Rail Road ("LIRR") from assigning certain IBEW members to work a shift from 4 P.M.-12. A.M. For the reasons outlined below, IBEW's motions are DENIED and the complaint is DISMISSED for lack of subject matter jurisdiction.

Factual Background

  The basic facts as outlined herein are not disputed by the parties. On October 16, 2003 John Collins, LIRR's Acting Principal Engineer, sent IBEW General Chair Thomas Leibold a letter in which Collins announced that as of November 18, 2003 twenty-four EBEW jobs in the Maintenance of Way ("MW") Department would be abolished, jobs with shifts of 8 A.M.-4 P.M. from Monday through Friday. Leibold Declaration at 4-5. The letter informed Leibold that as of November 19, 2003 twenty-four new jobs would be established, but only fourteen of those would have the same shifts as the abolished jobs; the other ten new jobs would have a shift of 4 Page 2 P.M. to 12:00 A.M., Monday through Friday. Id. at 5. The LIRR wished to use the late shift on a project involving an electrical substation at the Flatbush Avenue Yard, which is occupied by trains during the day. Affidavit of John Collins at 2. LIRR believes this particular project will last approximately three months from its commencement. Id. at 2-3. Soon after receiving the letter from Collins Leibold protested the new shift, over the phone and in person, to LIRR's Director of Labor Relations, S. M. Drayzen. Leibold Declaration at 5. Leibold argued that the shift change would violate the collective bargaining agreement ("CBA") between the parties, LIRR could not make this move unilaterally, and IBEW did not give LIRR permission to do so. Id. Drayzen said the dispute was "minor," as it concerned the interpretation of the CBA, so it must be arbitrated. He refused to rescind the shift change, and on November 19 the LIRR made the change in shift times for the ten employees in question. Id. at 6. IBEW's lawsuit for an injunction followed.

  The parties agree that the relevant section of the CBA is found at Rule 9A ("Starting Time and Meal Period-MW"):
(a) There may be one, two, or three shifts employed. The starting time of the work periods for regularly assigned service shall be arranged by agreement between the Carrier and the General Chairman, based on normal service requirements. When the normal starting time does not meet actual service requirements as regulated by the character of work and train service, this starting time may be changed to not earlier than 5:30 A.M. or later than 8:30 A.M. upon sixteen (16) hours notice to the employees affected.
(b) The time and length of the meal period shall be subject to mutual agreement.
(c) Where three shifts are employed in continuous service, the spread of each shift shall consist of eight (8) consecutive hours including an allowance of thirty (30) minutes for meal within limits of the fifth hour.
  (d) Lapped shifts shall not be established except where the Page 3 requirements of service cannot be met by other equally economical arrangements.

 Exh. B to Collins affidavit.

 Legal Standards

  The parties do not dispute the content of the law in this area. IBEW points to the Railway Labor Act ("RLA"), specifically 45 U.S.C. § 152(1), which effectively prohibits carriers (like LIRR) from unilaterally changing work rules. In order to change work rules the LIRR must serve a bargaining notice on the IBEW under Section 6 of the RLA, thus beginning a rule-bound collective bargaining process. When a carrier attempts to make such a unilateral change over the protests of the union, the parties are engaged in what the Supreme Court first called in Elgin. J. & E. Railway Co. v. Burley, 325 U.S. 711 (1945), a "major dispute." A major dispute:
relates to disputes over the formation of collective agreements or efforts to secure them. They arise where there is no such 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.
Id. at 723. During a major dispute, if an employer attempts to violate the "status quo" by imposing new work rules (among other things) district courts have subject matter jurisdiction to enjoin such a violation, even without the normally required showing of irreparable injury. See Consolidated Rail Corp. v. Railway Labor Execs. Assoc., 491 U.S. 299, 302-03 (1989) (hereinafter "Conrail").
  LIRR does not question the validity of these laws and cases; rather, it argues that the case at bar does not constitute a "major dispute," but rather a "minor dispute." The definition of minor dispute is rooted in 45 U.S.C. § 152(6), which covers disputes arising "out of grievances Page 4 or but of the interpretation or application of agreements concerning rates of pay, rules, or working conditions." Again in the words of Burley, such a dispute:
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.
Burley, 325 U.S. at 723. District courts do not have subject matter jurisdiction over minor disputes; these matters must instead be grieved before an arbitration board. See Conrail, 491 U.S. at 303-04. The threshold question of jurisdiction, therefore, turns on whether the disagreement between the parties constitutes a major or minor dispute.
  Both the Supreme Court and the Second Circuit have within the last fifteen years clarified how district courts should examine whether a dispute is major or minor. In Conrail, 491 U.S. at 307, the court approvingly quoted the Third Circuit for the proposition that an employer has a "relatively light burden" in establishing that a dispute is minor. The court explained further:
Where an employer asserts a contractual right to take the contested action, the ensuing dispute is minor if the action is arguably justified by the terms of the parties' collective bargaining agreement. Where, in contrast, the employer's claims are frivolous or obviously insubstantial, the dispute is major.
Id. The Second Circuit has affirmed that "in order to meet Conrail's `arguably justified' test, `an employer need demonstrate only that a reasonable trier of fact could adopt the employer's view of the contract.' " Brotherhood of Locomotive Engineers Div. 269 v. Long Island Rail Road, 85 F.3d 35, 38 (2d Cir. 1996), quoting Assoc. of Flight Attendants v. United Airlines, Inc., 976 F.2d 102, 105 (2d Cir. 1992). To summarize, the relevant tests for the threshold question of Page 5 jurisdiction are whether LIRR's argument that this dispute is about the interpretation of Rule 9A is "arguably justified" or adoptable by a "reasonable trier of fact," or, on the other hand, whether LIRR's argument is "frivolous or obviously insubstantial."


  IBEW argues that LIRR's assigning these ten workers to a 4 P.M.-12 A.M. shift violates the status quo, because MW Department workers have never, for decades in the past, worked any shift but 8 A.M. to 4 P.M. IBEW stresses that the language of Rule 9A is that "The starting time of the work periods for regularly assigned service shall be arranged by agreement between the Carrier and the General Chairman" and claims that the General Chairman has never assented to any shifts beginning at 4 P.M. In fact, asserts IBEW, LIRR has repeatedly attempted to change this rule through the collective bargaining process, so as to be able to start shifts at 4 P.M. Specifically, in 1995, 1998, and 2002 LIRR submitted a "Rule 6 Notice" to IBEW that it wished to bargain over Rule 9A and change its relevant terms to "The Carrier will have the right to establish or change shift starting times and relief days without restriction." In both the 1995 and 1998 bargaining rounds LIRR ultimately accepted the version of Rule 9 A as it stands now, and the 2002 bargaining round is ongoing. This bargaining history proves, argues IBEW, that LIRR is trying to unilaterally change the status quo so as to achieve a change in working conditions it has been unable to obtain at the bargaining table. Similarly, says IBEW, when in the past LIRR has attempted to make a unilateral move such as this one IBEW has protested, and LIRR has backed away from the proposed change or has obtained IBEW's permission — this past Page 6 course of conduct demonstrates that LIRR has traditionally agreed with IBEW's interpretation of the agreement.

  LIRR responds in a number of ways. First, LIRR points to the first sentence of Rule 9A(a), which states that "There may be one, two or three shifts employed." Since there is undisputedly an 8 A.M.-4 P.M. shift in the MW Department, it follows that there is also a 4 P.M. to 12 A.M. shift (and a 12 A.M.-8 A.M. shift as well). LIRR further claims that MW electricians have worked a shift from 4 P.M. to 12 A.M. for decades, without objection or special permission from IBEW, and LIRR has submitted voluminous affidavits and exhibits in support of that claim. In those situations no agreement from IBEW was required, and more generally no agreement is necessary for LIRR to move MW workers from one established shift, such as 8 A.M. to 4 P.M., to another, such as 4 P.M.-12 A.M. Next, LIRR argues that the need to obtain agreement from the General Chair for starting times of regularly assigned service applies only to situations where the LIRR wishes to "create" an entirely new shift, such as a "lapped shift" from 11 A.M. to 7 P.M., as referred to in Rule 9A(d). In fact, says LIRR, the freedom to create such "new" and "lapped" shifts is what LIRR was trying to achieve when it sent the Section 6 bargaining notices to IBEW — notices that apply to other unions and other departments, like the ME Department, where there was definitely a 4 P.M. to 12 A.M. shift already in place. LIRR also points to: (1) the fact that IBEW electricians in the ME Department work under near-identical contract language and often work a 4 P.M.-12 A.M. shift without special permission; and (2) the decision of an arbitration panel adjudicating a similar complaint by Sheet Metal Workers who also work under similar language, where the arbitrator agreed with the LIRR's position. Page 7

  In its reply brief IBEW insists that the MW Department, the only group of LIRR workers actually covered by Rule 9A and therefore the only group relevant in this dispute, has never had a "regular" shift from 4 P.M.-12 A.M. Through declarations of past and present IBEW General Chairmen IBEW explains that nearly all of the situations cited in LIRR's declarations and exhibits relate to "two-man emergency crews," teams of electricians who, continuously since IBEW gave permission in 1949, could be assigned to shifts other 8 A.M.-4 P.M. These crews "rove the entire railroad, handling electrical emergencies as they happen under the direction of the Power Director." See, e.g., Bove Declaration at 3. All other MW employees "hold positions on a maintenance gang and work under the supervision of a gang foreman." Id. The remaining situations cited by LIRR are those occasions ...

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