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  • UTU REGIONAL MEETING 2000

    MAJOR AND MINOR DISPUTESUNDER THE RAILWAY LABOR ACT

    CLINTON J MILLER III UTU GENERAL COUNSEL

    CHARLES P FISCHBACH ARBITRATOR

    I Introduction

    To understand the dispute resolution processes under the Railway Labor Act it is incumbent

    upon the advocate to know the distinction between major and minor disputes The distinctionwill either impact on the negotiation process or on contract administration and interpretation

    II Major and Minor Disputes Whatsthe Difference

    A The emergence ofthe terms major and minor disputes under the Railway LaborAct as adopted and defined in Elgin Joliet Eastern Railway v Burley

    1 Major disputes which appropriately should becalled bargaining disputesrelate to complaints over the formation ofa collective bargaining agreementand concern intended changes to the agreement

    2 Minor disputes which appropriately should be calledarbitration disputescontemplate the existence of a collective bargaining agreement or impliedagreement or practice and relate to the meaning or proper annlication of

    particular contract provisions or practices

    3 Situations for example dealing with the majorminor distinction

    i Violations of crew consist agreements UTU v Illinois CentralRailroad Co I and UTU v Illinois Central Railroad Co II

    ii Carrier use of an alter ego to defeat collective bargainingagreements Burlington Northern Railroad Co v United

    Transportation Union Winona Bridge and Brotherhood ofLocomotive Engineers and United Transportation Union v

    Springfield Terminal Railway Co and Aroostock and BangorResources Inc

  • 2

    4 Relationship of dispute characterization to the status quo requirementDetroit Toledo Shore Line Railroad v United Transportation Union

    B Judicial reasoning for determining whether adispute is major or minor

    1 Arguably Justified Standard as adopted in Consolidated Rail Corp vRailway Labor Executives Assn

    2 Light burden on the party asserting the arguably justified standard incharacterizing the dispute as minor

    3 The effect ofa Section 6 Notice in determining whether an existing dispute ismajor RutlandRailway v Locomotive Engineers

    4 The effect ofpast practice in determining whether dispute is major or minor

    C Courts lack jurisdiction to decide the merits ofaminor dispute

    1 Requiring aparty to participate in aminor dispute procedure

    2 The role and authority ofan adjustment board in arbitration

    3 Injunctive relief to preserve jurisdiction of an arbitral board to issue aneffective remedy

    4 Enjoining aunion from striking a carver while the minor dispute proceduresare being exhausted

    5 Orders for expedited arbitration

    III Case Studies on Major and Minor Disputes Discussion

    A Imposition ofcollective bargaining agreementUnited Transportation Union v South Carolina Public Railway130F3d627 4Cir 1997

    B Operating demonstration train without a conductorUnited Transportation Union v National RailroadPassenger Corp966 F Supp 1 DDC1997

  • 3

    C Past practice affecting the agreementUnited Transportation Union v Gateway Western Railway151 LRRM 2669 WDMo 1995

    D Hiring outside engineersUnited Transportation Union v Burlington Northern Railroad875 F Supp 468 ND Ill 1994

    SOURCE MATERIAL

    Charles P Fischbach Major and Minor Disputes Underthe Railway Labor Act What is theDifference 1999

    Daniel R Elliott III The Shore Line StatusQuo Requirement 46 Cleve St Law Rev 303

    1998

    r

  • MAJOR AND MINOR DISPUTES UNDER THE RAILWAY LABOR ACT

    WHAT IS THE DIFFERENCE

    By Charles P FischbachArbitrator

    A central purpose of the Railway Labor Act is to require the parties to resolve socalledminor disputes through conferences and if necessary through various arbitration mechanismsknown as adjustment boardst In this regard it is essential to understand which disputes must beresolved through arbitration and the distinction between major and minor disputes2

    MAJOR AND MINOR DISPUTES

    When the Railway Labor Act was drafted two types of contractual disputes weredistinguished Those concerning an intended change in agreements affecting rates ofpay rulesor working conditions3 and those arising out of grievances or out of the interpretation orapplication of agreements The first type of contractual dispute is subject to the noticenegotiation and mediation process with the parties ultimately able to invoke selfhelp if theyreject voluntary arbitration the second type of contractual dispute is committed to the exclusivejurisdiction of the appropriate adjustment board established under the Railway Labor Act forfinal and binding arbitration5 Interestingly enough the terms major and minor disputes arenot used in the statute Yet the two categories have become identified universally in thatmanner The U S Supreme Court adopted and defined these railroad industry terms in ElginJoliet Eastern Railway vBzrley6

    The Railway Labor Act sets forth three types ofadjustment boards for the rail industry the National Railroad

    Adjustment Board Special Boards ofAdjustment andPublic Law Boards

    2

    Major and minor disputes are two of four kinds of disputes under the Railway Labor Act The other two arestatutory and representation disputes A statutory dispute may involve the impeachment of an arbitration awardbecause the award fails to conform to the substantive requirements ofthe Railway Labor Act or that the proceedingwas not substantially in conformity with the Act the award does not conform itself to the stipulation of the partiesagreement to arbitrate or that a member of the adjustment board is found guilty of fraud or corruption A

    representation dispute may invohethe class or classes ofemployeescrafts included or excluded from a bargainingunit or a dispute contesting the propriety ofa representation election

    Railway Labor Act Section 6 The same concept is expressed somewhat differently in Section 2 Seventh of theAct as disputes concerning a change inl the rates ofpay rules or working conditions of the carriers employeesas a class as embodied in agreements

    Railway Labor Act Section 2 Sixth

    sSee Railroad Trainmen v Chicago River LRR353 US 30 1957 where the US Supreme Court held that

    strikes over grievances orsoalledminor disputes were contrary to the 1934 amendments to the Railway LaborAct establishing the federally funded National Railroad Adjustment Board and thus enjoinable in the federal courtsDuring the period from 1934 until the Supreme Court decision strikes and strike threats over minor disputes were

    commonplace They have been practically unknown since

    6 325 US711 1945

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    Major disputes relate to disputes over the formation of collective agreements orefforts to secure them They arise where there is no such agreement or where it is

    sought to change the terms ofone Therefore the issue is not whether an existingagreement controls the controversy They look to the acquisition of rights for thefuture not to the assertion ofrights claimed to have vested in the past

    A minor dispute however contemplates the existence ofa collective agreementalready concluded or at any rate a situation in which no effort is made to bringabout a formal change in terms or to create anew one The dispute relates eitherto the meaning or proper application of a particular provision with reference to aspecific situation or to an omitted case In the latter event the claim is foundedupon some incident of the employment relation or asserted one independent ofthose covered by the collective agreement eg claims on account of personalinjuries In either case the claim is to rights accrued not merely to have new onescreated for the future

    ARGUABLY JUSTIFIED STANDARD

    Although the distinction between major and minor disputes espoused in Elgin appearsclear in principle its application has triggered a vast majority of court decisions In RutlandRailway v Locomotive Engineersgthe court rejected use ofa Section 6 notice seeking to modifythe agreement as the defining factor concluding that the difference between the interpretationand the application of an existing agreement and a change in an original intended meaning isoften a matter ofdegree9 The court further observed that

    it must not place undue emphasis on the contentions or maneuvers ofthe partiesManagement will assert that its position whether right or wrong is only an

    interpretation or application of the existing contract Unions on the other handwill obviously talk in terms of change Since a Section 6 notice is required by thestatute in order to initiate a major dispute the labor representatives are likely toserve such a notice in any dispute arising out of any ambiguous situation so as

    thereby to make the controversy appear more like a major disputelo

    While the Rirtlcnid decision held that federal courts were not to adjudicate the merits ofa

    controversy they were required to determine the nature of the parties dispute based on theirown examination of the contractual issues involved Following this decision other courts have

    325 U S at 723

    307 F 2d 21 cert denied 372 US954 1963

    9 397 F 2d at 33

    10Ibid

  • 3

    adopted avariation of the same test holding that a minor dispute exists where the claim that the

    dispute is one ofcontract meaning or application is arguablelt not obviously insubstantial12azguably predicated on the terms of the agreement13 or not frivolous14 Judging fromConsolidatedRail Corp v Raihvay Labor Executives Assn15 the US Supreme Court adoptedthe same standard Where an employer asserts a contractual right to take the contested actionthe ensuing dispute is minor if the action is arQUablyiustified by the terms of the partiescollective bargaini

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