Csx Transportation, Inc. Consolidated Rail Corporation v. United Transportation Union General Committees of Adjustment

DISSENT

CLAY, Circuit Judge,

dissenting.

Despite ambiguity in the language of the national agreement’s moratorium provision, and evidence demonstrating that the dispute between the parties centers around Plaintiffs’ attempt to create “a unilateral change in working conditions,” Brotherhood Railway Carmen v. Norfolk and Western Railway Co., 745 F.2d 370, 375 (6th Cir.1984), the majority labels the dispute as “minor.” With little or no examination of the language in the national agreement, the circumstances surrounding the dispute, or the prior dealings between the parties, the Court accepts Plaintiffs’ claim that the “push car” announcement and Defendant’s resulting section 6 notices fall under the national moratorium provision. . Plaintiffs may have a relatively light burden in demonstrating that their construction is ‘arguably justified,’ however a light burden is not the same as no burden at all. Because I agree with the district court’s determination that the dispute is a “major” one, I respectfully dissent.

A “major” dispute “look[s] to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.” Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945). Conversely, the “distinguishing feature” of a minor dispute “is that the dispute may be conclusively resolved by interpreting the existing agreement.” Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S. 299, 305, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989). The majority quotes from Article X, section 2(a) of the national collective bargaining agreement (“CBA”), focusing on the “subsequent to November 1, 1999” clause. Yet, section 2(a) begins by stating that “[t]he purpose this Agreement is to fix the general level of compensation.” (emphasis added). Nothing in section 2(a) or any other *371provision refers to push cars, cabooses or crew consist in Plaintiffs CSX and Conrail’s Northern District. Moreover, Article X, section 2(c), which the Court alleges can be arguably interpreted to halt any mediation over the push car issues, does nothing to conclusively resolve the dispute.1

The national CBA is a general agreement between Defendant UTU and the National Carriers’ Conference Committee on behalf of numerous railway carriers around the country. In the context of the RLA, we have previously noted that “[b]e-cause collective bargaining agreements are meant to be ‘generalized code[s] to govern a myriad of cases which the draftsmen cannot wholly anticipate,’ the parties’ prior ‘practice, usage and custom’ is relevant in determining the rights of the parties under the agreement.” Airline Prof'ls Ass’n v. ABX Air, Inc., 274 F.3d 1023, 1028 (6th Cir.2001) (quoting Conrail, 491 U.S. at 311-12, 109 S.Ct. 2477, 105 L.Ed.2d 250). Defendant produced evidence that the parties have never negotiated crew consist or other local issues specific to individual carriers at the national level. See, generally, Bhd. of R.R. Trainmen v. Atlantic Coast Line R.R., 383 F.2d 225, 229 (D.C.Cir.1967) (“It cannot be disputed that although the [union] and the carriers have occasionally discussed crew consist problems on a national scale, there has never been a national crew consist rule ... The thousands of existing crew consist agreements have been negotiated at the local level.”) Defendant also introduced evidence that every other major railroad carrier in the country has its own locally handled agreement with the UTU dealing with these issues, and each local CBA has its own moratorium provision. Not only had these issues not been bargained for at the national level, the parties here had “no such agreement” at the local level. Burley, 325 U.S. at 723, 65 S.Ct. 1282, 89 L.Ed. 1886. In light of the parties prior ‘practice, usage and custom,’ Plaintiffs’ argument that the national moratorium encompasses the local issues specific to the Northern District raised in Defendant’s March 2002 section 6 notices is “obviously insubstantial” or “frivolous.”

There are additional problems with the Court’s analysis. The majority cites to this Court’s opinion in International Longshoremen’s Association v. Toledo Lakefront Dock & Pellet Co., 776 F.2d 1341, 1344 (6th Cir.1985), for the decisive proposition that disputes over whether a moratorium provision can be interpreted to bar the serving of Section 6 notices are minor disputes. However, International Longshoremen’s does not stand for such a broad proposition, and this Court has never held that a disagreement over the application of a moratorium provision is automatically a minor dispute. Rather, in International Longshoremen’s, the Court held that certain negotiations over manning were barred by a national moratori-*372urn provision, because the manning issue was addressed in the national CBA:

We agree that Toledo Lakefront’s claim that negotiations concerning manning are barred by the moratorium provision of the Miami Agreement is arguably correct and the dispute, therefore, is a minor one. Section 10 of the Miami Agreement specifically addresses the possibility that changes in manning may be necessary due to the technological and operational changes.

International Longshoremen’s, 776 F.2d at 1344 (emphasis added). An inference could be drawn from International Longshoremen’s that where certain issues are not even implicitly addressed by an agreement, the agreement’s moratorium provision does not bar negotiations on those issues. That reasoning is also consistent with Conrail, in which the Supreme Court held that a prior agreement governing physical examinations, and providing for urinalysis to check for disease, could arguably encompass the carrier’s subsequent decision to implement mandatory drug testing. Conrail, 491 U.S. 299, 109 S.Ct. 2477, 105 L.Ed.2d 250. In addition, the district court correctly found that in each of the cases cited by Plaintiffs in support of their argument that disputes over the scope of a moratorium provision are automatically “minor,” either the subject matter of the CBA and the section 6 notices were arguably the same, or the moratorium explicitly barred the notices.2

The dispute between the parties arises out of Plaintiffs’ announcement in March 2002 that they intended to institute “push cars” in their Northern District. The re-suiting section 6 notices served by Defendant were in direct response to Plaintiffs’ announcement, and involved issues never discussed in the context of the national CBA. This is not a situation where Defendant’s “claim is to rights accrued,” but rather, a situation where Defendant seeks to secure new rights relating to previously unbargained-for issues. Burley, 325 U.S. at 723, 65 S.Ct. 1282, 89 L.Ed. 1886. “[MJajor disputes seek to create contractual rights, and minor disputes seek to enforce them.” Conrail, 491 U.S. at 302, 109 S.Ct. 2477, 105 L.Ed.2d 250. Because the majority reaches a contrary conclusion, I respectfully dissent.

. The full text of section 2(c) reads:

(c) The parties to this Agreement shall not serve nor progress prior to November 1, 2004 (not to become effective before January 1, 2005) any notice or proposal for changing any matter contained in:
(1) This Agreement,
(2) the proposals of the parties identified in Section 2(a) of this Article, and
(3) Section 2(c) of Article XV of the Agreement of January 27, 1972, and any pending notices which propose such matters are hereby withdrawn, except as otherwise provided in Article IV of this Agreement.

If anything, this language undercuts Plaintiffs' construction of the national moratorium by singling out specific matters which may not be the subject of section 6 notices during the moratorium period, and which do not include the issues addressed in Defendant’s March 2002 section 6 notices.

. See, e.g., Bhd. of Locomotive Eng’rs v. Portland Terminal R.R. Co., 860 F.2d 1088 (9th Cir.1988) (unpublished decision); St. Louis S.W. Ry. Co. v. United Transp. Union, 646 F.2d 230 (5th Cir.1981); Flight Engr’s Int’l Ass’n v. American Airlines, Inc., 303 F.2d 5 (5th Cir.1962); Burlington N., Inc. v. R.R. Yardmasters of America, Nos. 76 C 1750, 1869 & 1937, 1976 WL 1570 (N.D.Ill. June 21, 1976); Southern Pacific Transp. Co. v. Bhd. of Ry., Airline and Steamship Clerks, No. C-75-2187 SW, 1975 WL 1246 (N.D.Cal. Dec.18, 1975).