Detroit & Toledo Shore Line Railroad Company v. United Transportation Union/Dissent Harlan
Mr. Justice HARLAN, with whom THE CHIEF JUSTICE joins, concurring in part and dissenting in part.
I fully agree that the application of § 6 should not be restricted to only those terms of employment that the parties have seen fit to embody in a written agreement. Section 6 may properly, in some circumstances, be extended to 'freeze' de facto conditions of employment. I cannot, however, accept what appears to be the majority's test for determining when a § 6 freeze is appropriate.  Any work practice is, in the words of the majority, an 'actual, objective working condition.' However the practice of today may not be the accepted condition of yesterday, but rather a temporary expedient in which neither party acquiesces. I find it difficult to think that Congress intended that either party, by serving a § 6 notice, should be able to shackle his adversary and tie him to a condition that has been historically and consistently controverted.
Rather, what persuades me to countenance the extension of § 6 beyond the terms of a written collective-bargaining agreement is the fact, observed by the Court, that '(w)here a condition is satisfactorily tolerable to both sides, it is often omitted from the agreement, * * *,' ante, at 155. Taking this observation as a point of departure, I favor a more subjective approach than the objective and mechanical one implicit in the majority's language. The question that should be asked is whether in the context of the relationship between the principals, taken as a whole, there is a basis for implying an understanding on the particular practice involved. To this end it is necessary to consider not only the duration of the practice but also all the dealings between the parties, as for example, whether the particular condition has been the subject of prior negotiations.
While I recognize, of course, that any subjective test is not easily applied, I cannot subscribe to a rule that may have the incongruous effect of perpetuating what both parties in fact view as a disputed practice, simply because neither party, for reasons of convenience, has exercised a recognized option of resorting to self-help.
Under this standard I consider that the proper disposition of the case before us is to remand to the District Court for additional findings.  While the District Court found that '(f)or many years prior to 1961' Lang Yard was the established terminal point for reporting to duty, that finding alone would not satisfy a subjective test in light of subsequent events that may have negatived any understanding that might have existed prior to 1961.  In 1961 the Shore Line advised the union of a contemplated shifting of reporting to its Trenton terminal some 30 miles north. The proposal apparently met with employee resistance and the union served a § 6 notice seeking to modify the agreement with the railroad. By 1963 the parties had exhausted the statutory mediation route without reconciling their differences and the Mediation Board recommended arbitration to break the impasse. This proposal was rejected by the company which declared the dispute moot since, by that time, it had abandoned its Trenton project. Meanwhile, the company embarked on a practice of transporting employees at its own expense and on company time from its Dearoad terminal, 11 miles north of Trenton, a practice which is the subject of a separate § 6 notice.
In my opinion a remand is called for to determine whether the company's voluntary abandonment of its Trenton project, coupled with its undertaking to transport employees from Dearoad at its own cost and the long-established practice prior to 1961, amounted to acceptance in principle ofLang Yard as the reporting location.
For that reason I respectfully dissent from the Court's affirmance of the Court of Appeals.
^1 The majority first announces a test looking to 'actual, objective working conditions,' ante, at 153. This is later qualified by a durational requirement, but no general principle of decision is set forth.
^2 While the District Court and the Court of Appeals both properly rejected petitioner's theory, restricting § 6 to terms embodied in a written agreement, it is by no means clear to me precisely what standard they followed in concluding that the Act was applicable.
^3 The District Court, as I read its findings, does not appear to have considered the possible impact of the train of events revealed by the record in connection with 1961-1963 proceedings before the Board.