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BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES Plaintiff
vs.
ATCHISON TOPEKA & SANTA FE RAILWAY CO. et al. Defendants. NORFOLK SOUTHERN RAILWAY CO. et al. Plaintiffs v. BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES et al. Defendants.
 
Case:
Case No. 96-1515 Case No. 96-1524
 
Location:
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS
 
Date:
December 17 1996 Decided
 
Attorneys:
For BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES plaintiff (96-CV-1515): David W Stuckel HARVEY & STUCKEL Peoria IL. John O'B Clarke Jr Richard S Edleman HIGHSAW & MAHONEY PC Washington DC. For NORFOLK SOUTHERN RAILWAY COMPANY NORFOLK AND WESTERN RAILWAY COMPANY plaintiffs (96-CV-1524): James S Whitehead SIDLEY & AUSTIN Chicago IL. William L Hatch HATCH MCPHETERS & LYKE Champaign IL.
For ATCHISON TOPKEA AND SANTA FE RAILWAY CO. BURLINGTON NORTHERN RAILROAD COMPANY Sued as Burlington Northern Railroad CONSOLIDATED RAIL CORPORATION CSX TRANSPORTATION INC. UNION PACIFIC RAILROAD COMPANY defendants (96-CV-1515): Bradford B Ingram Cheryl G Bluth HEYL ROYSTER VOELKER & ALLEN Peoria IL. Ralph J Moore Jr Donald J Munro SHEA & GARDNER Washington DC. Joanna L Moorhead David P Lee NATIONAL RAILWAY LABOR CONFERENCE Washington DC. For NORFOLK SOUTHERN RAILWAY COMPANY defendant (96-CV-1515): James S Whitehead SIDLEY & AUSTIN Chicago IL. William L Hatch HATCH MCPHETERS & LYKE Champaign IL. For BROTHERHOOD OF MAINTENANCE WAY EMPLOYES MAC A FLEMING Individually and as Brotherhood of Maintenance Way Employees President S V POWERS Individually and as Brotherhood of Maintenance Way Employees Assistant to President L W BORDEN Individually and as Brotherhood of Maintenance Way Employees Vice President RICHARD A LAU Individually and as Brotherhood of Maintenance Way Employees Vice President HENRY W WISE JR Individually and as Brotherhood of Maintenance Way Employees Vice President WILLIAM E LARUE Individually and as Brotherhood of Maintenance Way Employees Secretary-Treasurer D BARTHOLOMAY Individually and as Brotherhood of Maintenance Way Employees PLB Coordinator J D KNIGHT Individually and as Brotherhood of Maintenance Way Employees General Chairman P R BEARD Individually and as Brotherhood of Maintenance Way Employees General Chairman G L COX Individually and as Brotherhood of Maintenance Way Employees General Chairman T R MCCOY JR Individually and as Brotherhood of Maintenance Way Employees General Chairman R L TAYLOR Individually and as Brotherhood of Maintenance Way Employees General Chairman defendants (96-CV-1524): David W Stuckel HARVEY & STUCKEL Peoria IL. John O'B Clarke Jr Richard S Edelman HIGHSAW & MAHONEY PC Washington DC. William A Bon Southfield MI.
For ATCHISON TOPKEA AND SANTA FE RAILWAY CO. BURLINGTON NORTHERN RAILROAD COMPANY CONSOLIDATED RAIL CORPORATION CSX TRANSPORTATION INC. UNION PACIFIC RAILROAD COMPANY counter-claimants (96-CV-1515): Bradford B Ingram Cheryl G Bluth HEYL ROYSTER VOELKER & ALLEN Peoria IL. Ralph J Moore Jr Donald J Munro SHEA & GARDNER Washington DC. Joanna L Moorhead David P Lee NATIONAL RAILWAY LABOR CONFERENCE Washington DC.
For BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES counter-defendant (96-CV-1515): David W Stuckel HARVEY & STUCKEL Peoria IL. John O'B Clarke Jr Richard S Edleman HIGHSAW & MAHONEY PC Washington DC.
 
Court:
JOE B. McDADE United States District Judge
 
Author:
The Hon. Justice Joe B. McDade
 

On December 13 and 16 1996 this Court held an evidentiary hearing in these consolidated cases on the Carriers' motions for preliminary injunction. At such hearing the parties agreed that the Court could decide this case on the merits pursuant to Fed. R. Civ. P. 65(a)(2). After hearing the testimony and argument for both sides the Court now makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

The following facts are largely undisputed by the parties. Brotherhood of Maintenance of Way Employees ("Union") has a long and contentious bargaining history with the various Carriers involved in this case. One of the most divisive issues separating the parties in recent years has been the use of "regional and system gangs" which operate across railroad seniority district lines. Each railroad company has a number of seniority districts or divisions *fn1 which define the geographical boundaries in which a railroad employee can work. Many "traveling" or "mobile" employees travel within a single seniority district when reporting to work. Seniority districts vary in size and can span over a thousand miles at their farther most regions. The work is mostly seasonal and takes place at specified times during the year.

"Regional and system gangs" consist of a subset of these workers who are authorized to travel through two or more seniority districts in order to arrive at their job site. This may entail more travel for employees to and from their homes although not in every instance. The Union deplores regional and system gangs in part because of the sometimes extraordinary distances employees must travel in order to arrive at their work sites as well as the fact that these gangs are subsidized with "staggering amounts of unpaid travel time and unreimbursed automobile expense for travel between their homes and distant work locations."

Because the Carriers insisted on the inclusion of regional and system gangs in their 1991 collective bargaining agreement the parties were unable to reach an accord. As a result President Bush appointed Presidential Emergency Board No. 219 ("PEB 219") in order to make recommendations on the issues dividing the parties. However the Union rejected the PEB's recommendations and instituted a nationwide railroad strike. Congress intervened by imposing the PEB 219 recommendations on the parties as a collective bargaining agreement under the RLA. Thus the 1991 National Agreement included certain provisions for regional and system gangs.

The 1991 National Agreement allowed the parties to serve "re openers" on November 1 1994 that is to propose changes to the agreement and bargain over them. The Union immediately pushed for the elimination of regional and system gangs. In addition the parties disagreed over the amount of travel allowances for employees. On May 16 1996 President Clinton appointed PEB No. 229 ("PEB 229") to make recommendations on these and many other issues. The Union and Carriers made written submissions to the Board and followed that up with oral testimony before the Board.

On June 23 1996 PEB 229 issued a Report recommending that regional and system gangs not be eliminated but that their use be restricted to those Carriers which already utilized such gangs. On page 34 of that same Report the PEB made the following recommendation regarding travel allowances for employees:

At the beginning of the work season employees are required to travel from their homes to the initial reporting location and at the end of the season they will return home. This location could be hundreds of miles from their residences. During the work season the Carriers' service may place them hundreds of miles away from home at the end of each work week. Accordingly the Carriers will pay each employee a minimum travel allowance as follows for all miles actually traveled by the most direct highway route for each round trip:

0 to 100 miles $ 0.00

101 to 200 miles $25.00

201 to 300 miles $50.00

301 to 400 miles $75.00

401 to 500 miles $100.00

Additional $25.00 payments for each 100 miles increments.

At the start up and break up of a gang an allowance will be paid after 50 miles with a payment of $12.50 for the mileage between 51 and 100 miles.

Carriers may provide bus transportation for employees to their home area on weekends. Employees need not elect this option.

For employees required to work over 400 miles from their residences the Carrier shall provide and these employees shall have the option of electing an air travel transportation package to enable these employees to return to their families once every three weeks. Ground transportation from the work site to the away from home airport shall be provided by each Carrier and on the return trip the Carrier shall provide ground transportation from the away from home airport to the lodging site. In dealing with programmed work the employees and Carrier may know how long the employees will be required to work beyond the 400 mile range and the employer can require the employees to give advanced notice of their intent to elect the air transportation option so that the Carrier may take advantage of discounted air fares. Employees must make themselves available for work on at least ninety percent of the regularly scheduled work days during the three week period. And they will not qualify for the previously set forth travel allowance during the three week period. They shall however be entitled to meals and lodging during the two away-from-home weekends in the three-week cycle.

On September 26 1996 the parties entered into a new National Agreement based on the PEB's recommendations. Because the parties could not agree on specific implementing language the travel allowance recommendation was incorporated verbatim into Article XIV of the Agreement. *fn2

Soon after the Carriers were insisting that Article XIV should be interpreted as applying only to regional and system gang employees. On October 24 1996 the Union filed suit before Judge Baker in Case No. 96-1515 seeking a declaration that the Carriers were attempting to unilaterally amend the terms of Article XIV in violation of the RLA. *fn3 On November 11 1996 Judge Baker recused himself and transferred the case to this Court. On November 22 1996 four of the Carriers filed counterclaims urging that the dispute was a minor one subject to compulsory arbitration under the Act. On November 26 1996 they filed a motion for preliminary injunction.

Meanwhile on November 8 1996 two of the other Carriers Norfolk Southern Railway Co. and Norfolk and Western Railway Co. filed their own Complaint for declaratory and injunctive relief against the Union in the United States District Court for the Western District of Virginia. That same day these Carriers also filed a motion for TRO against a threatened Union strike which the Court granted on a $100 000 bond. The court then transferred the case to Judge Baker. Judge Baker transferred it to this Court and it was docketed as Case No. 96-1524. On December 2 1996 Defendants filed a Motion for Preliminary Injunction in that case.

On December 5 1996 the Court consolidated the two cases and set the matter for a hearing on both pending preliminary injunction motions and on the merits of all claims and counterclaims. On December 13 and 16 1996 such a hearing was held and the Court took the matter under advisement.

CONCLUSIONS OF LAW

The question before the Court is straightforward: is the Carriers' position that Article XIV applies only to regional and system gang employees a major or minor dispute under the RLA? All disputes under the RLA fall into one of these two basic categories. See Consolidated Rail Corp. v. Railway Labor Executives' Assoc. 491 U.S. 299 310 (1989) (refusing to add a third category of "hybrid" disputes).

Major disputes relate to "disputes over the formation of collective agreements or efforts to secure them." Id. at 302. They arise when there is no collective bargaining agreement in place or where one party seeks to unilaterally amend the provisions of an existing agreement. Id. In the event of a major dispute the parties are required to undergo a lengthy process of bargaining and mediation. Until they have exhausted those procedures the parties are obligated to maintain the status quo and the employer may not implement the contested changes. Id. at 302-03. If the carrier fails to make every reasonable effort to settle a major dispute the Union may strike to achieve the status quo. Burlington Northern R.R. Co. v. United Transp. Union 862 F.2d 1266 1281-82 (7th Cir. 1988); 29 U.S.C. SEC. 108.

By contrast minor disputes "arise out of grievances or out of the interpretation or application of agreements concerning rates of pay rules or working conditions." 45 U.S.C. SEC. 152 Sixth. Thus a minor dispute is one over the interpretation or application of an existing collective bargaining agreement. Chicago & North Western v. Railway Labor Execs. Ass'n 908 F.2d 144 148 (7th Cir. 1990) cert. denied 498 U.S. 1120 112 L. Ed. 2d 1179 111 S. Ct.1073 (1991); Burlington Northern R.R. Co. v. United Transp. Union 862 F.2d 1266 1271 & n.4 (7th Cir. 1988). If there is any doubt as to whether a dispute is major or minor a court will construe the dispute to be minor. Burlington Northern 862 F.2d at 1272. The procedure for resolving a minor dispute is binding arbitration before the National Railroad Adjustment Board or a special adjustment board Chicago & North Western 908 F.2d at 148; Burlington Northern 862 F.2d at 1272 citing Brotherhood of R.R. Trainmen v. Chicago River & Indiana R.R. 353 U.S. 30 1 L. Ed. 2d 622 77 S. Ct. 635 (1957); 45 U.S.C. SEC. 153 and a district court is justified in enjoining any threatened strikes pending its outcome. Burlington Northern 862 F.2d at 1272; Chicago & North Western 908 F.2d at 157.

The Supreme Court has created a special test for the situation where a carrier believes that it is operating within the terms of the collective bargaining agreement but the Union asserts that the carrier is attempting to unilaterally amend the CBA. The ensuing dispute is minor if the action is "arguably justified by the terms of the parties' collective bargaining agreement." Consol. Rail 491 U.S. at 307. Where in contrast the Carriers' claims are "frivolous or obviously insubstantial " the dispute is major. Id. Thus the Carriers have a "relatively light burden" in establishing that a dispute falls under the exclusive arbitration provisions of the RLA. Id.

While this burden may be light the Court finds that the Carriers have not met it here. The Court finds and the Carriers appear to concede that the plain language of Article XIV of the CBA unambiguously applies to all traveling employees. The first sentence of section 1(a) refers to "work season employees." However it is undisputed that work season employees are not limited to regional and system gang employees. The next two sentences note that the initial reporting location "could be hundreds of miles from their residences" and go on to state that these employees may be "hundreds of miles from home at the end of each work week." However this is just as true for employees who travel within a single seniority district as for regional and system gang employees because single districts can span hundreds of miles. The fourth sentence plainly states that "the carriers will pay each employee a minimum travel allowance " thus implying that no restriction exists as to the particular type of employee.

While section 1(b) mentions "the start up and break up of a gang " there is no evidence in the record that the word "gang" applies only to regional and system gangs. On the contrary the documentary evidence reveals that the words "gang" and "crew" are interchangeable and loosely applied. See e.g. Joint Ex. 4 p.34 ("regional and system crews"); Union Ex. 2 p.1241 ("traveling gangs"). Moreover regional and system gangs have been characterized as "the carriers' most productive gangs " implying that other types of gangs exist. Joint Ex. 8 p.318. Indeed PEB 219 defined regional and system gangs as those consisting of at least 20 employees; thus there must be "gangs" with less than that number of workers. The isolated use of the word "gang" in one subsection of Article XIV simply is not enough to sustain a textual argument here.

Likewise section 2 of Article XIV simply states that employees required to work over 400 miles from their homes will have the option of electing an air transportation package between work and home. The third sentence refers to "programmed work" which has been defined as "scheduled work." While work schedules for regional and system gangs are more frequently published by the Carriers than for single district employees they are in no way limited to such gangs. Moreover the third sentence of section 2 does nothing to limit the scope of that section. It merely provides that in specific instances of programmed work the employee should inform the Carrier in advance that he is choosing to travel by air so that the Carrier can obtain competitive rates on the airline.

The Carriers argue that the plain language is ambiguous because it does not contain any reference to "traveling" or "mobile" employees or those employees "without fixed headquarters." However such technical references are not necessary here. The broad language of Article XIV applies to all employees who travel between their work site and their homes during the work season. This language necessarily encompasses traveling and mobile employees. Thus the Carriers' position is clearly not justified by the plain language of the Agreement.

Instead the Carriers argue that the Court must look to the entire context of Article XIV including the development of that provision through the PEB 229 proceedings to truly determine whether their position is "arguably justified by the terms of the collective bargaining agreement." Consol. Rail 491 U.S. at 307. The Supreme Court in Consolidated Rail set forth two basic types of evidence upon which the Court could rely in making such a determination: (1) the express terms of the CBA; and (2) the implied terms of the CBA as interpreted in light of the parties' practice usage and custom. Id. at 311. Thus in Consolidated Rail itself the Court relied upon an implied term of the CBA regarding drug testing as interpreted in the light of past practice to find that the dispute was a minor one Id. at 312.

Here however this type of evidence is not available to the Carriers. As noted above Article XIV does not provide any arguable basis for limiting its express terms to include regional and system gang employees only. Nor have the Carriers demonstrated that Article XIV's terms are implicitly restricted here. The Carriers' evidence regarding the PEB proceedings which resulted in the creation of Article XIV does not qualify as an implied agreement or a past practice usage or custom of the parties.

The Carriers make three further attempts to establish a past practice here. First they argue that the Union has conceded that this dispute is a minor one by submitting individual grievances over Article XIV travel allowances to arbitration. However Union Assistant to President Steven V. Powers testified that the Union arbitrated such individual grievances in order to protect the rights of its employees but did not concede that the travel allowance dispute was a minor one. Thus this argument must be rejected.

Second NLRC Labor Relations Director A. Kenneth Gradia stated that "the PEB travel allowance recommendation was modeled in good measure on language found in local agreements between carriers and the BMWE that provide travel allowances for members of regional and system gangs." Gradia Declaration P 19 Ex. 23. It is true that the agreement found at Exhibit 23 includes a travel allowance chart similar in kind to that found in Article XIV of the parties' 1996 National Agreement. However there is nothing in such a chart that inherently restricts its scope to that of regional and system gangs; indeed it makes sense to use this type of chart in any situation where the amount of the allowance increases proportionally with the distance traveled. Moreover the agreement at Exhibit 23 explicitly restricts its scope to "interdivisional gangs" and must be contrasted with the broad language used in Article XIV of the 1996 National Agreement.

Third the Carriers argue that in the past the amount of travel allowances for regional and system gangs on certain railroads has been disparately greater than that of other work gangs. Indeed this was one of the points raised by the Union in its written submission to PEB 229:

The allowances are wholly inadequate and widely disparate between carriers. For example BN employees assigned to regional production gangs receive a $ 20.00 weekly travel allowance and employees on other BN gangs receive no travel allowance. CSX employees assigned to system production gangs receive a weekend travel allowance of $50.00 and employees on other CSX gangs receive no travel allowance. Conrail has a sliding scale of $20.00 $24.00 and $28.00 for weekend trips depending on the type of gang.

Joint Ex. 4 p.21 n.14. Thus according to the Carriers this past practice of the parties establishes an implied restriction of Article XIV's terms to that of regional and system gangs only.

However the Court does not believe that the Carriers can rely solely upon past practices to change the otherwise unambiguous language of the Agreement. Consolidated Rail does not support such a result. In that case the parties had conceded that an implied contractual term existed and the Court refused to answer the question when "a particular past practice has risen to the level of an implied contractual term." 491 U.S. at 312 n.9. The law in this Circuit appears to be that reliance upon past practice is appropriate where a contractual term is silent on a particular issue or is ambiguous as to that issue or where it makes explicit reference to such practices. See Judsen Rubber Works Inc. v. Manufacturing Prod. & Serv. Workers Union Local No.24 889 F. Supp. 1057 1062-64 (N.D. Ill. 1995). The law of the shop cannot be used to modify the clear and unambiguous language of the collective bargaining agreement. I.A.M. Progressive Lodge No. 1000 v. General Elec. Co. 865 F.2d 902 906 (7th Cir. 1989); Tootsie Roll Indus. Inc. v. Local Union No. 1 Bakery Confectionary and Tobacco Workers' Int'l Union 832 F.2d 81 84 (7th Cir. 1987). Because Article XIV unambiguously applies to all traveling employees it would be frivolous to use the Carriers' past practices to attempt to limit its broad language to regional and system gangs only.

This is even more clear in the instant case where the "past practice of the parties" actually appears to have been a unilateral practice by the Carriers to deprive certain employees of their travel allowances under vehement protest from the Union. Such a practice did not result from a joint determination of the parties and cannot properly be used to displace the explicitly negotiated provision in the parties' collective bargaining agreement. Chicago Web Printing Pressmen's Union No. 7 v. Chicago Newspaper Publishers' Ass'n 772 F.2d 384 387-88 (7th Cir. 1985); Judsen 889 F. Supp. at 1062-63; cf. Consolidated Rail 491 U.S. at 312 (past practice could be used to support employer's amendment of implied contractual term where Union acquiesced to the carrier's practice). Application of such a practice would result in a rewriting of Article XIV not an interpretation of it.

The Carriers argue that the Court should look beyond the unambiguous language of Article XIV because arbitrators have the ability to do so. For this proposition the Carriers rely upon Loveless v. Eastern Air Lines Inc. 681 F.2d 1272 1279-80 (11th Cir. 1982) in which the Eleventh Circuit upheld an arbitration panel's decision to look beyond the plain language of the CBA in order to determine the parties' true intent. The court noted that "perhaps this construction would have reached." Id. at 1280.

Loveless is entirely distinguishable as it involved the highly deferential review a district court must give to final arbitral awards under section 3 First(q) of the RLA. Id. at 1275 1280. Under that standard a court must merely determine whether the arbitrator's decision "draws its essence from the letter or purpose of the collective bargaining agreement" and "conform[s] to a specific contractual limitation upon his authority." Id. at 1276.

Here by contrast the issue is in a decidedly different procedural posture. The Court must decide whether the Carriers' position is so "frivolous" or "obviously insubstantial" as to not warrant compulsory arbitration under the RLA. Because this is a federal court bound by the common law rules of contract it could not in good conscience simply choose to ignore the plain and unambiguous language of the parties' agreement as an arbitrator might do. GNB Battery Tech. Inc. v. Gould Inc. 65 F.3d 615 621 (7th Cir. 1995). When faced with a similar situation Judge Zagel succinctly stated:

Loveless [] involved an arbitrator's authority once a dispute was properly before him. In our case however we must address the logically prior question of whether this dispute properly should be before the adjustment board; and in this context we think it would make little sense to consider the material the adjustment board would consider in the event we decide the matter is within the adjustment board's exclusive jurisdiction.

Air Line Pilots Assoc. Int'l v. UAL Corp. 699 F. Supp. 1309 1331 n.4 (N.D. Ill. 1988) aff'd in part rev'd in part 874 F.2d 439 (7th Cir. 1989). *fn4 Thus the court refused to employ extrinsic evidence to change the plain meaning of an unambiguous clause in the CBA. Id. at 1331.

The Carriers raise the interesting point that it should be the arbitrator's decision in the first instance whether to look beyond the unambiguous language of the agreement. However the Court does not believe that it should place itself in an arbitrator's shoes when determining if the Carriers' position is "arguably justified." The Court is not itself an arbitrator and need not speculate what a particular arbitrator might do if faced with the same situation. Such an approach would diminish the rule of law which this Court is bound to follow in reaching its decisions. Nothing in Consolidated Rail or its progeny dictates a contrary holding.

Thus in summary the Court holds that because no express or implied terms of Article XIV as viewed in light of the past practices of the parties provide an arguable justification for the Carrier's position here the dispute is a major one and Counts I and II of the Union's Complaint in 96-1515 are meritorious. *fn5 Conversely the Carriers' claims in 96-1524 counterclaims in 96-1515 and preliminary injunction motions in both cases are denied. The Court finds that the Carriers have violated Section 2 First and Section 2 Seventh of the RLA by unilaterally amending Article XIV of the September 26 1996 National Agreement in a manner inconsistent with Section 6 of the RLA.

The Carriers have made a motion to issue a strike injunction pending appeal in this case. Such an injunction is warranted under Fed. R. Civ. P. 62(c) and Fed. R. App. P. 8(a) if the movant can show irreparable harm. Here the parties have stipulated that the Carriers will suffer irreparable injury in the event that the Court finds for the Union in this case. Thus the Carriers' motion for injunction pending appeal is granted. *fn6 The precise wording of such an injunction and the amount of the supersedes bond shall be determined as soon as practicable.

CONCLUSION

IT IS THEREFORE ORDERED that the Clerk shall enter a final judgment in favor of Plaintiff and against Defendants on Counts I and II of the Amended Complaint in Case No. 96-1515 [Doc. # 3]. Defendants' counterclaims in Case No. 96-1515 [Doc. # 20] are DENIED.

IT IS FURTHER ORDERED that Defendants' Motion For Preliminary Injunction in Case No. 96-1515 [Doc. # 23] is DENIED.

IT IS FURTHER ORDERED that Defendants' Motion for Temporary Restraining Order in Case No. 96-1515 [Doc. # 29] is DENIED.

IT IS FURTHER ORDERED that the Clerk shall enter a final judgment in favor of Defendant and against Plaintiffs in Case No. 96-1524.

IT IS FURTHER ORDERED that Plaintiffs' Motion For Preliminary Injunction in Case No. 96-1524 [Doc. # 6] is DENIED.

IT IS FURTHER ORDERED that the Temporary Restraining Order in Case No. 96-1524 [Doc. # 2] is DISSOLVED; bond shall be returned to Plaintiffs.

IT IS FURTHER ORDERED that the Clerk shall TERMINATE Case Nos. 96-1515 and 96-1524.

IT IS FURTHER ORDERED that the Carriers' Oral Motion for Injunction Pending Appeal [Doc. # 45] is GRANTED pursuant to Fed. R. Civ. P. 62(c). The precise wording of the injunction and the amount of the supersedes bond shall be determined as soon as practicable.

JOE B. McDADE

United States District Judge

 
Notes:

*fn1 It is unclear precisely what difference there is between a "district" or "division." For purposes of this opinion the Court shall simply refer to them collectively as "districts."

*fn2 Only the section numbers were changed and the last sentence of section 2 was eliminated.

*fn3 An Amended Complaint was filed on November 4 1996.

*fn4 While the Seventh Circuit affirmed the district court's finding of a major dispute on wholly different grounds Judge Zagel's reasoning still retains its force here.

*fn5 The parties voluntarily dismissed Counts III and IV of the Union's Complaint in 96-1515 by stipulation on December 13 1996. In addition the Plaintiffs in 96-1524 voluntarily withdrew their claims relating to Article XII of the CBA [Doc. # 44].

*fn6 The Court notes that nothing in the Norris-LaGuardia Act prevents such an injunction from being issued. See Chicago & North Western Ry. Co. v. United Transp. Union 422 F.2d 979 983 (7th Cir. 1970) rev'd on other grounds 402 U.S. 570 29 L. Ed. 2d 187 91 S. Ct. 1731 (1971).