dissenting.
I respectfully dissent. The United States Supreme Court made it clear in The Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969), that a railroad must maintain the status quo with respect to “actual objective working conditions * * *, irrespective of whether these conditions are covered in an existing collective agreement.” Id. at 143, 90 S.Ct. at 295. The Court stated:
It is quite apparent that under our interpretation of the status quo requirement, the argument advanced by the Shore Line has little merit. The railroad contends that a party is bound to preserve the status quo in only those working conditions covered in the parties’ existing collective agreement, but nothing in the status quo provisions of §§ 5, 6, or 10 suggests this restriction. We have stressed that the status quo extends to those actual, objective working conditions out of which the dispute arose, and clearly these conditions need not be covered in an existing agreement. Thus, the mere fact that the collective agreement before us does not expressly prohibit outlying assignments would not have barred the railroad from ordering the assignments that gave rise to the present dispute if, apart from the agreement, such assignments had occurred for a sufficient period of time with the knowledge and acquiescence of the employees to become in reality a part of the actual working conditiom. Here, however, the dispute over the railroad’s establishment of the Trenton assignments arose at a time when actual working conditions did not include such assignments. It was therefore incumbent upon the railroad by virtue of § 6 to refrain from making outlying assignments at Trenton or any other place in which there had previously been none, regardless of the *1116fact that the railroad was not precluded from making these assignments under the existing agreement.
Id. at 153-54, 90 S.Ct. at 301 (emphasis added and footnote omitted).
Here, the district court found, and the railroad does not dispute, that for thirty years the railroad’s carmen worked from 7:00 a.m. to 3:00 p.m., with a twenty minute paid lunch break. In 1983, the railroad decided that it wanted to discontinue the paid lunch period. It negotiated for a short period concerning this subject with the union. When the union would not agree to the proposed change, the railroad unilaterally discontinued the paid lunch period without complying with the mediation provisions of the Railway Labor Act. Given these facts, Detroit & Toledo Shore Line R.R. requires us to reverse the district court.
The majority asserts that the past practice rule is applicable only where the practice of the parties fills in for circumstances not covered by the agreement. This view is directly contrary to Supreme Court doctrine and should not be adopted by this Court. The only question in this circumstance should be the one posed by Judge Arnold, writing for the Court in Independent Federation of Flight Attendants v. Trans World Airlines, Inc., 655 F.2d 155 (8th Cir.1981).
Section 6 of the Act applies only where there is an intended change “in agreements affecting ... working conditions” of the employees. The term “working conditions” is to be broadly interpreted. * * * It includes those actual, objective working conditions out of which the dispute arose and which may not necessarily be covered in an existing collective bargaining agreement. * * * These conditions, however, must have achieved the level of established practices and customs. * * * We have held that “to establish a long-standing custom and practice, the conduct of the parties must encompass a continuity, interest, purpose and understanding which elevates a course of action to an implied contractual status.”
Id. at 157 (emphasis added and citations omitted).
Judge Arnold went on to point out that in the case under consideration the practice had not been elevated to implied contractual status. Here, however, it cannot be argued that the practice was not clearly established. Indeed, the contrary seems to be conceded. The argument relied upon by the majority, rather, is that if the collective bargaining agreement can arguably be interpreted to permit the railroad to do what it wants to do, the established past practice rule of the Supreme Court in Detroit & Toledo Shore Line R.R. is not applicable. The majority’s erroneous interpretation thus effectively overrules Detroit & Toledo Shore Line R.R.
This Court followed Independent Federation of Flight Attendants in Missouri Pacific Joint Protective Bd. v. Missouri-Pacific R.R., 730 F.2d 533 (8th Cir.1984) (MoPac). There, Judge John R. Gibson, writing for the Court, stated:
In the instant case there is at least one factual issue that needs to be determined. Whether MoPac has engaged in similar operational changes in the past which would amount to “established past practices” is in dispute. While MoPac argues that it has been making similar operational changes for at least ten years, the Brotherhood denies that there are any established past practices justifying MoPac’s actions, and contends that it was not aware of any similar prior operational changes. Whether MoPac has made similar operational changes capable of constituting “established past practices” could be significant, if not determinative, in the resolution of whether the dispute is major or minor.
Id. at 537 (citations omitted).
We again followed Independent Federation of Flight Attendants in Brotherhood of Maintenance of Way Employees, Lodge 16 v. Burlington Northern R.R. Co., 802 F.2d 1016 (8th Cir.1986). There Judge Arnold, writing for the Court, stated:
When longstanding practice ripens into an established and recognized custom between the parties, it ought to be protect*1117ed against sudden and unilateral change as though it were a part of the collective-bargaining agreement itself. Such practices have been described as the “actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose.” Detroit & Toledo Shore Line Railroad v. United Transportation Union, 396 U.S. 142, 153, 90 S.Ct. 294, 301, 24 L.Ed.2d 325 (1969).
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Applying these principles to the facts of the present case, we note that nothing in the collective-bargaining agreement refers in any way to Rule G or to enforcement or investigation methods. Nevertheless, we agree with the District Court that the union has long shared in BN’s concern over the abuse of alcohol and drugs by employees on the job. Accordingly, the parties have acquiesced in certain detection and investigation methods over the years, and these practices may fairly be considered to have become the status quo. That being so, the railroad may not depart from these established practices in such a substantial way as to abrogate the implied contractual term which they represent. But so long as the railroad keeps within the bounds of this understanding, the employees are not entitled to an injunction against minor changes in method which are reasonably within the agreement.
Id. at 1022.
Here, the railroad is not making a minor change. It is abrogating a longstanding established practice of paying employees for their lunch period. It should be enjoined from doing so until such time as it complies with the provisions of Section 6 of the Railway Labor Act.
If the majority’s opinion is permitted to stand, we will reduce the past practice rule established in Detroit & Toledo Shore Line R.R. to a meaningless phrase. We are not permitted to do this.