(concurring in part and dissenting in part):.
I concur in the opinion of the court to the extent that it affirms the District Court in denying relief against Port Richmond Elevator Co., Inc., the lessee. I respectfully dissent from the holding as it relates to Galveston Wharves.
The District Court, in denying relief, was of the view that only a minor dispute was involved and that under the Railway Labor Act the court was without jurisdiction. Order of Railway Conductors v. Pitney, 1946, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318; Slocum v. Delaware, L. & W. R. Co., 1950, 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795; 45 U.S.C.A. § 153. Our recent case of St. Louis, San Francisco & Texas Ry. Co. v. Railroad Yardmasters of America, 5 Cir., 1964, 328 F.2d 749, was deemed to be controlling. I agree.
The majority speaks in terms of bargaining over whether the elevator is to be leased, and of perhaps unscrambling the lease. This is drastic relief indeed, and presumably it has not been lightly granted. My difference is that I have looked in vain for some foundation for the holding. This follows in part at least from the fact that I take a much less expansive view of the problem presented.
The fact that employees lost their positions is no doubt of major consequence to them but this is far different from a major dispute within the context of the Railway Labor Act. The carrier contended that only a minor dispute was involved. It was operating under an agreement with the union which provided that it could lay off employees on seven days’ notice, and which reserved to the carrier broad management prerogatives which may be said to embrace its decision to lease the elevator. See Articles XVI and XII, Footnotes 17 and 18, majority opinion.
The dispute necessarily turns on a construction of these provisions to determine whether the carrier acted within its rights. This is a classic example of a minor dispute which under the law is to be handled by the Railway Adjustment Board. See § 3, First (i) of the Railway Labor Act, 45 U.S.C.A. § 153, First (i), which provides that disputes between a carrier and its employees “growing out of * * * the interpretation or application of agreements concerning rates of pay, rules, or working conditions * * * may be referred * * * by either party to the * * * Adjustment Board.” See Order of Conductors v. Pitney, supra, and Slocum v. Delaware, L. & W. R. Co., supra, to the effect that such disputes are not for the courts. Minor disputes under the Railway Labor Act which, as stated, involve questions of interpretation of an existing collective bargaining agreement are to be distinguished from major disputes. This latter type are those arising from efforts to change working conditions through the making of a new agreement. They involve the creation of new rights rather than the enforcement of existing contractual rights. Major disputes go eventually to mediation in an effort to avoid a strike. § 6 of the Act, 45 U.S.C.A. § 156, which the majority states has been violated by the carrier here is a part of the major disputes settlement machinery. Elgin, J. and E. R. Co. v. Burley, 1945, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886, 1894-1895. See also Brotherhood of L. F. and E. v. Florida East Coast Ry. Co., 5 Cir., 1965, 346 F.2d 673, on the difference between major and minor disputes.
*193Certainly the carrier may argue in good faith that it acted under the layoff and management prerogative provisions of the agreement. This is all that is necessary to leave the question to the Adjustment Board and it is for that tribunal to construe it. St. Louis, S. F. & T. Ry. Co. v. Railroad Yardmasters of America, supra.
The majority puts aside the minor dispute contention, apparently because jobs were terminated; and takes the position that a major dispute over the right to lease — something outside the contract— is involved. This is said to bring § 6 of the Act into play, and the carrier in violation because it has not followed § 6. The correctness of this position, of course, turns on whether the dispute is major or minor and, as stated, I think it is minor.
I could not concur even if a major dispute were presented absent a determination that the lease in question did not amount to a bona fide termination of elevator operations by the carrier. The majority leans on Fibreboard Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233, a case concerned with the duty under the National Labor Relations Act to bargain over terms or conditions of employment. 29 U.S.C.A. § 158(a) (3) and (5). There the court relied on its prior decision of Order of Railroad Telegraphers v. Chicago & N. W. R. Co., 1960, 362 U.S. 330, 80 S.Ct. 761, 4 L.Ed.2d 774, to sustain the proposition that the contracting out of work was a condition of employment over which bargaining was mandatory. The subject matter for mandatory bargaining under § 6 of the Railway Labor. Act in the Telegraphers case was an amendment to the existing labor agreement offered by the union that no existing jobs would be abolished except by agreement. The carrier was in the process of closing some of its stations with the result that jobs would be lost.
The union here seeks to bargain over what may be argued is an amendment similar in result, the right to lease the elevator. However, I would distinguish the Telegraphers case on the ground that the carrier there did not propose discontinuing some definite phase of its operations as a carrier such as a branch line or the like. If the carrier here ceased its elevator operations through the medium of a bona fide lease, and this is a matter for the District Court to first determine, then I think the Telegraphers case would not obtain for the reason that a cessation of business question instead of a condition of employment question is -presented. I would answer that question in favor of the carrier on the authority of the gloss put on § 6 of the Railway Labor Act by the Textile Workers of America v. Darlington Manufacturing Co., 1965, 380 U.S. 263, 85 S.Ct. 994, 13 L.Ed.2d 827, which removes cessation of business questions from the realm of mandatory bargaining. Fibre-board involved the contracting out of work, activity also different from discontinuing a business.
There is not a whisper in the record of the elevator having been leased because of anti-union animus. Darlington makes it clear that management has the absolute right to go out of business even for anti-union purposes where the whole business is closed. Here Galveston Wharves leased only a part of its business. It retained its switching operation. Darlington holds that an employer has the right to close a part of its business so long as there is no showing that the closing was for anti-union purposes. The employer would however, be bound for the balance of the period of any existing contract in such event, here two months. Hence, § 6 of the Act, even if the dispute is major in light of the Telegraphers case, might nevertheless be inapplicable depending on the facts regarding whether there was a bona fide cessation of the elevator business by the carrier.
Being unable to distinguish the rationale of our own case of St. Louis, San Francisco & Texas Ry. Co. v. Railroad Yardmasters of America, supra, I would affirm.
Rehearing denied; BELL, Circuit Judge, dissenting.