Aldisert, Gibbons and Rosenn, Circuit Judges.
This case is an appeal by the Penn Central Transportation Company and a cross appeal by the bargaining representative of its trainmen, the United Transportation Union, from a decision of the United States District Court for the Eastern District of Pennsylvania, 317 F. Supp. 768. That decision construed the requirement of the Railway Labor Act (45 U.S.C. § 151 et seq.) that once a notice has been filed by a party to a collective bargaining agreement under Section 6 of the Act*fn1 seeking a change in the pay, rules, or conditions of employment, no changes in the disputed terms can be unilaterally undertaken pending a resolution of the dispute.
The railroad contends that prior to such notice it had established a practice of freely changing the location of physical and instructional examinations and instructional classes throughout its system without consultation with the union. It asserts that even during the pendency of a proper notice for changes in the rules governing location of examinations, the "status quo" required by the Act still permits it to make further shifts in locations. The union disagrees, contending that there was no such practice. Alternatively, they suggest that even if there was a past practice, the freeze envisioned by the Railway Labor Act requires that all locations operating as of the date of the notice must be maintained as part of the status quo.
Although there is dispute in this case about the existence of any practice on the part of the railroad at any time, the heart of the controversy is whether the statutory requirement under Section 6 demanding maintenance of pay, rules, and conditions of employment is intended: (1) to permit the railroad to continue a past practice even if it means changes in the actual physical locations of examinations; or (2) to freeze the actual locations open as of the date of the notice in spite of the railroad's past history of freely making changes in these sites.
Between the years 1956 and 1970 the railroad made sixteen changes*fn2 in medical stations and numerous changes in instructional examination sites.*fn3 The only provision in the contract dealing with examinations was Rule 1-B-1, which stated:
When examinations other than physical examinations are given to trainmen, the Company shall arrange for trainmen to take them without loss of time.
The railroad states that for this reason it never consulted the union about the changes it made.
Prior to 1966 the union never complained about the closings nor sought any other contractual arrangement to govern any aspect of the problem. On April 21, 1966, the Brotherhood of Railway Trainmen, the predecessor of the present union,*fn4 filed a Section 6 notice with the railroad requesting essentially that trainmen be paid for the time they spent taking the various examinations.*fn5 Direct negotiations proceeded without agreement and the services of the National Mediation Board were invoked by the union on April 14, 1969.*fn6 Between April 21, 1966, the date of filing the first Section 6 notice, and March 1, 1970, further changes in the location of examinations took place*fn7 and incurred no protest from the union. However, on March 2, 1970, the union served the railroad with another Section 6 notice which requested a rule change that would have required the railroad to send trainmen for examinations at their home terminal, or if no examinations were currently held at that terminal, to the one nearest their home.*fn8
The union believed that regardless of any past practice, the second Section 6 notice then froze all existing examination sites and prevented their abolition. The railroad, interpreting the meaning of status quo required by Section 6 differently, believed that it could continue what it considered its past practice of changing examination sites without consulting the union pending resolution of the controversy.
On July 17, 1970, the railroad closed its medical facility in the Wilmington, Delaware, passenger station.*fn9 The union protested the closing as contrary to the requirement that conditions not be altered pending the resolution of the April 1966 and March 1970 notices and threatened to strike the railroad. The railroad sought the services of the National Mediation Board to resolve the dispute surrounding the March 1970 notice and applied to the district court for an injunction against the strike.
The district court not only enjoined the strike but also found that the closing at Wilmington violated the duty of the railroad to "'preserve and maintain unchanged those actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose and which are involved in or related to that dispute.' Detroit & Toledo Railroad Co. v. United Transportation Union, et al., 396 U.S. 142, 24 L. Ed. 2d 325, 90 S. Ct. 294 (1969)." Because of the burden on the railroad and the pendency of the matter before the National Mediation Board, it refused to order any sites reopened but did enjoin any further changes in the location of physical and instructional examinations.
The union has appealed from that decision, contending that the injunction against it should be lifted. The railroad has also appealed on the grounds that there was a past practice of freely changing examination sites; and the past practice of freely changing examination sites and the proper interpretation of Section 6's status quo provision would ...