Major Dispute - Wheeling & Lake Erie Railway Violates Crew Consist Agreement

Photo courtesy of the Norwalk Reflector

Photo courtesy of the Norwalk Reflector

The Sixth Circuit Court of Appeals this week overturned a district court's granting of a preliminary injunction barring the Brotherhood of Locomotive Engineers and Trainmen (BLET) from engaging in a strike against the Wheeling & Lake Erie Railway Co. ("Wheeling"). The dispute involved a "crew consist" provision in the workers' labor contract that required at least one conductor to be assigned to every train operated by the Wheeling. The railroad sought to have the provision removed from the contract during several rounds of negotiations, but the union refused. On several occasions over a period of a few years, while negotiations were ongoing, the Wheeling violated the crew consist provision by allowing supervisors to operate trains by themselves when a crew reached its maximum hours of service and marked off. For each instance that the union was aware of a violation, it protested the practice and threatened further action. On September 20, 2013, following the most recent violation of the crew consist provision, the BLET and its members went on strike.

The Wheeling filed a lawsuit on the same day in federal district court. The court granted a temporary restraining order ending the strike, but conditioned the relief on the Wheeling's agreement not to use supervisors to operate trains. The court later granted the Railroad's request for a preliminary injunction, holding that the railroad met its "relatively light burden" to show that the union's strike was in violation of the Railway Labor Act. The union filed an appeal to the Sixth Circuit.

At issue on appeal was the distinction between a "major" dispute and a "minor" dispute under the Railway Labor Act. Major disputes involve the negotiation and creation of a collective bargaining agreement. Such disputes arise where the right at issue does not already exist, or where one of the parties seeks to change the terms of an existing contract. Major disputes allow parties, after a lengthy process of bargaining and mediation, to resort to the use of "economic force" such as a strike. A minor dispute involves grievances or disputes involving rights that already exist under a contract. Minor disputes must be handled through a complex grievance procedure, and the interpretation of an arbitrator or neutral on a contract provision is final and binding. The parties are prohibited from engaging in work stoppages over a minor dispute.

The Wheeling argued at the Sixth Circuit that its dispute over crew consist was a minor dispute, and the union's strike was therefore illegal. The railroad claimed that since the contract does not prohibit the use of a management employee to operate a train when no conductor is available, the railroad maintained the discretion to do so. The railroad suggested that if the union disagreed, it should be limited to filing a grievance and taking the matter to arbitration. The union countered that the matter involved a major dispute, since the contract expressly prohibited the Wheeling's operation of any train without a conductor. The Wheeling was attempting to bypass the negotiation process and unilaterally assert a right that doesn't currently exist. The Court agreed with the union's interpretation, and overturned the preliminary injunction.

Based on the decision, if the railroad decides to have a supervisor run a train without a conductor assigned, it faces the prospect of a legal, authorized strike of its employees.

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