# Appendix — Brotherhood of Locomotive Firemen & Enginemen v. Bangor & Aroostook Railroad

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1097%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1968
- **Citation:** 390 U.S. 923

## Text

APPENDIX A
OPINION '

Francie M. Shea and Richard T. Coney, both of Wash-
ington, D. C., for the plaintiffs in Action No. 777-66; and
‘for. the defendants in Action No. 784-66. —

Joseph L. Rauh, Jr. and Isaac N. Groner, both of Wash-
ington, D. C,, for the defendant in Action No. 777-66; and
for the plaintiff in Action No. 784-66.

This is the trial of two consolidated péilenn: one ‘brought

by a group of railroads against the Brotherhood of Locomo-_

tive Firemen and Enginemen, and the other instituted by
the Brotherhood against a number of railroads. The second ,
action had'been filed originally in the United. States District,
Court for the Northern District of Dlinois, and on defend- |
ants’ motion was transferred here by Chief Judge Camp-. |
bell of the Illinois Federal Court. The two were then con-
solidated on motion of the plaintiffs in Action No. 777-66.
Tn each action a declaratory judgment and a permanent -
injunction are sought and a counterclaim is interposed for
reciprocal relief.

The basic issues to be determined are the effect and the
consequences of the termination of the effective period of
4 BB Award of a. compulsory arbitration proceeding: ‘concern-
~ ing two principal issues of a nationwide controversy be-

tween Class I railroads and organizations of railway em-

ployees. The differences in dispute were the need for con-
_tinued use of firemen on Diesel engines in. freight ‘and yard.
service, and the possibility. of reduction in the sizeof train’
crews on numerous runs throughout the country. The com-
pulsory arbitration.was directed by a Joint. Resolution of
Congress, approved August 28, 1963, 77 Stat. 132, in order
to prevent a threatened n tionwide railroad strike.

It was claimed by the carriers that: firemen were not
needed on Diesel engires in freight and yard service, as
there were no longer any fires to stoke and that whatever
other help was renderéd by-the yronen was in fact accorded

~ (i)

+ the engine.

— . !

| by ‘the head brakeman, whose ‘post was also. in the cab of
The Arbitration Board, known as Board 282, reached the :
conclusion that firemen were,no longer needed on Diesel

engines in freight and yafd service, except as to ten percent °

of the number, who it was held should be retained for un-

usual and extraordinary situations. In order to prevent * ie

. hardship and distress to thousands of employees, however,

the Award of the Board did not direct that ninety percent
of the firemen in question could be discharged forthwith,
but provided that the result should be accomplished only
by attrition ever the years, which would ease any possible
financial distress to the individuals concerned and to their
- families. Accordingly, it was prescribed by the Award that
all firemen who had at least ten years of service, should

retain their status until death, retirement, resignation, or >:

discharge for cause. The same right ‘was extended to fire-
men having between two and ten years of service; with the ~
qualification, however, that the carriers were to have the
privilege of offering comparable positions to firemen in z
- this class, for which they were qualified or could be made ,
‘ .qualified, with 4 guarantee of employment in the new posi-
tions for at least five years. Any moving expenses incurred
by the employees under these circumstances were to be
borné by the employer. If such an offer were declined by
the employee, he could be discharged upon the payment of
severance pay, the size of which was dependent upon the.
‘length of his service. The employment of firemen of Jess .
than two years’ service could be terminated upon the pay-
ment of severance allowances, again measured by the length
of service. . hippies °
In respect to-the proposed reduction of sizes of crews on
numerous trains, the Award formulated certain specific
considerations called ‘‘guidelines,’’ to govern the decision
as to whether the size of any specific crew should be reduced. -

1No question was raised as to the necessity of firemen.in passenger
service because the railroads did not dispute the need of having two |
men in the eab, and in passenger service it was not customary for a
brakeman to be stationed in the cab. :

. eee y eet, “ ¥ Dein en NOISE ASIEN PA BT OM PR tg ater rp oe open

[
|
| .

we

ss Se i
The issues as to particular crews were rempuded: to the. local
properties. for negotiations. If negotiations did not result
in an agreement, special boards-of adjustment | were to be

". ° ereated in the respective localities in order to resolve the

disputés.?

The consolidated actions now before the Court were tried
_ on the basis of a stipulation of facts, which the Court adopts
as its findings of fact. This opinion will constitute the
conclusions of law. ‘The issues in these. actions: involve
the provisions of the Award which relate to firemen. Simi-
lar questions affecting trainmen were determined in Akron
& Barberton Belt Railroad Co. et al. v. Brotherhood of Rail-
road Traimmen, et al., 250 F. Supp. 691. is

The Joint Resolution of August 28, 1963 provided that
the Award of the Arbitration: Board was not to become -
effective until sixty days after it was filed. The statute
- further directed that the Award was to. continue in force
for such period as the Board should determine, but not to:
.exceed two years from its effective date. The Board ordered
in the Award that it should continue for two years from its
effective date, unless the parties agreed otherwise. ‘The
expiration date of the Award was originally Jariuary*25,
1966. It was extended by agreement to March 31, 1966 as .

to the Brotherhood of Locomotive Firemen and Enginemen.

While the Award was in effect the railroads gradually ..
reduced the. number of firemen in their employ by about -
18,000, and paid separation allowances approximating about —
- $36,000,000 to firemen whose employment was .severed. —
. About 1200: employees accepted offers of other positions
under the provisions of the Award. —

As heretofore indicated the questions to be determined at

~ this time are the rights and.liabilities of the parties in

respect to firemen as to rates of pay, rules, and working
conditions after the expiration of the-effective period of the -
Award. It is claimed by the union, as-was also contended

©2 The history of the controversy ‘and the details of the arbitration and
‘the Award were summarized in Brotherhood of Locomotive Firemen

- and Enginemen v. Chicago, Burlington & Quincy Ry. Co., 225 F. Supp.

11; and in Akron & Barberton Belt Railroad Co. et al..v. Brotherhood of

| Railroad Freiamen, et al., 250 ¥. Supp. 691.

_. by the Brotherhood of Railroad Trainmeft. in the Akron &
: ‘Barberton case,. supra, that upon.,.the- termination of the.
effeetive period of the Award, the status quo that existed
prior to the Award was automatically restored. The Court
rejected this contention in the Akron & Barberton case, and

_ tions under it created a new status ‘in regard to rules and
_ working conditions. This status may not be changed, as we
’- explained in detail in the opinion of this Court in the Akron
‘case, except by agreement or by serving notices under Sec- »
tion 6 of the Railway Labor Act (45 U.S.C. § 151) and
exhausting, step by step, each of the remedies’ accorded
by that statute. Neither side may make changes unilaterally .
until the remedies under the Railway Labor Act are ex-
hausted. No recourse may be had to self-help until that stage
‘is reached, which means that so far as the firemen are con-
cerned, they may not resort to a strike, and any such strike
would be illegal.. ; a ee
Every statute must receive a reasonable and sensible
construction. Any interpretation that obviously fails to |
. effectuate the purpose and intent of the legislative body
should be. rejected. This doctrine applies not only to the
Joint Resolution of.Congress, but also to the Award of the
; arbitration board: The. Award manifestly contemplated the
eventual permanent abolition of the jobs of firemen on
Diesel engines in freight and yard service, except as to ten
percent of that- number, but proposed that the desired result.
should be reached gradually by a process ofvattrition. It
was not intended, therefore, that the steps taken during the

effective period of the Award should become a nullity at
the end of the two-year period. The purpose of the Congress
and the effect of the Award would be entirely frustrated if
the railroads were required to rehire firemen whose posi-
tions have been abolished during that interval. So, too, the

v

8 The reasons for this conclusions are summatized in detail in the Akron
ease, 250 F.Supp. 691, and need not be repeated here, ae Chali
4'The machinery provided by the Railway Labor Act for the settlement’

of labor disputes is also described in detail in the opinion in the Akron
case, stpra. ; jr Po,

here repédts that rejection® The Award and: the opera-—

vested rights of those firemen who were accorded perma-
nent protection by the Award, are not to be wiped out.
It is argued by counsel for the Brotherhood that since the
Award is at an end, whenever any firemen dies, retires, or
resigns thereafter his position should be filled by. a new

_ appointment. Such a course too would completely defeat the:

purpose and the meaning of the Award; for the objective of
the Award was to abrogate the use of unnecessai

ssary firemen,
but to accomplish this result by degrees and as far as pos-—

sible in a painless manner. © | ,
_ On the other hand, neither side may take any further
affirmative steps under the Award after its termination
date. Thus, the railroads may not discharge any more fire-

- meib pursuant to. the provisions. of the Award. What has.

been accomplished under the Award remains and is not to
‘ be nullified or wiped out The firemen with seniority of
more than’ ten years retain a*permanent status for their
working life, which was granted to them by the Award.

The firemen who accepted: comparable jobs with a guar-—

antee of five years’ employment, retain that guaranty. On
the-other hand, the carriers‘are under no obligation to fill
vacancies that had been caused by the separation of firemen
from their positions, or to fill future vacancies. Those posi-

tions are permanently abolished. .As héretofore stated,.a

new status has been created and no change may be made

, in that status except by agreement or by the service of ~

notices ynder Section 6 of the Railway Labor Act, and re-
course to the provisions of that statute. Tete peer
, A number of States have what are known as ‘‘full crew”’

laws, that require railroads operating within their borders -

to maintain crews of a certain specified minimum number?
The Supreme Court has recently held in Brotherhood of

Locomotive Engtheers v. Chicago, R. I. & Ps.R. Co.,:382°:

U.S. 423, that Award 282 did not-supersede these ‘‘fill .

crew’’ laws. The result is that in some States, the railroads

have not been able to achieve reductions in the number of

fireméh that they would have been permitted to make

under the Awar', if the ‘‘full crew’” laws had not inter-

fered. One of those States is Oregon, which has recently
: ' ; way

r.

~~"

pe ee ie 6
repealed its full crew law effective anuary 1p 1967.. It is
argued by counsel for the carriers that after January 1,

of the provisions of the Award to the extent of offering
. .. comparable jobs to firemen who had between two and ten
years’ standing, and discharging firemen of less than two
years’ standing. This Court disagrees. Since the effective
period of the Award has-expired,-no-affirmative-steps- may
be taken under it. The mere fact that State ‘statutes, as con-
strued by the Supreme Court, have prevented the railroads
in some instances from taking full advantage of the pro-
visions of the Award, does not have the effect of prolong-
ing or restoring their rights when the bar of the State,
statute is eliminated. The situation must be deemed frozen
as of the close of the effective period of the Award. This -
is entirely different from the converse ruling that no vacan- :
cies occurring by attrition’after the termination date need
be filled. In other words, there is no right or duty to take
_.any affirmative step under the Award on the part of either
. side after the crucial date. pees. re
As lias been indicated and as this Court held in the Akron
case, a new status was created by the Award and the activi-°
ties under it. This status prevailed as of the date of. the
termination of the effective period of the Award. The sole
and’ exclusive method of modifying it is either by agree:
~ment or by serving appropriate notices under Section 6 of
the Railway Labor Act and going through the various
steps by- way of negotiations, mediation, and the other pro-
° ceedings provided by the statute. In this.instance, three
such notices were served by the union during the effective -
period of the Award. As this Court held in the Akron
case, while notices might be served during that interval,
they did not become effective until the day after the termi-
nation of the effective period of the Award. In other words,. |
neither side was under any obligation to participate in
, any of the proceedings accorded by the Railway Labor Act, »
pursuant to such notices until after March 31, 1966.

‘Naturally, there are certain limitations on the types of
notices that may be served under Section 6 of the Act.

1967, the railroads should be permitted to take advantage * —

7 _ #

They must relate to issues concerning which the: party
that initiates them has a right to insist on negotiating. |
In other words, to use the terminology of the Labor law,
they must involve ‘‘bargainable issues’’, Elgin, J. é E. R.

Co.-v. Burley, 325 U.S. 711, 739-740. Second, so far as —

_ Award 282 is concerned, the employees may not in the

guise of serving notices under Section 6 of the Railway —
Labor Act, seek to abrogate or set aside the Award. It
must be borne in mind that the Award is the result of a
compulsory arbitration conducted under a mandate of Con- —
gress and has the stamp of judicial approval in the form
of a judgment in a proceeding to impeach it. Neither a
carrier, nor a union may institute proceedings, direetly or
indirectly, to set aside any provision of the Award, or the
operations or activities that have taken place under it or
the results that have been achieved. Collective bargaining
must be restricted to the future and may. not relate to
alleged past grievances, Elgin; J. d E.&. Co. v. Burley,
supra. |

This discussion brings us to a consideration of the three
notices served by the Brotherhood, which.are involved in.
these actions. By stipulation the effect and validity of .
Notice No. 3 weré withdrawn from disposition at this trial
and were reserved for later consideration. The Court will,
therefore, limit its decision in this respect to the first two
notices. Notice No. 1, dated November 15, 1965, proposes
that firemen taken from. the seniority ranks of firemen
shall be used on all locomotives on road and yard service,
with a few enumerated exceptions. It provides. further
that a ‘‘job’’ may be operated without a fireman only when
it becomes necessary to hire a fireman. Further it pro-
poses that the carriers should hire and place on the fire-
men’s seniority roster a sufficient’ number of firemen to
comply with the provisions of the notice. In other words,
this notice demands the restoration of firemen on those.
runs for which Award 282 expressly held firemen were
unnecessary. Obviously, compliance with this notice would

_ be a consent to abrogate and do away with the outcome of

the arbitration.

8
A \ ‘.

Notice No. 2, served at the same time, gogs even further.
It proposes that all employees :whose employment and
seniority were terminated under the Award of Arbitration
Board 282 should be recalled and restored to their seniority
roster and employed with their original seniority date and
used as firemen. It further proposes that individuals so
restored should be reimbursed for any monetary losses

- sustained by them as-a result of the termination of their

~ employment and for expenses that they may have in-

curred by way of travel, lodging and meals, etc., or as a .

result of sale of homes. This Notice uses the terms ‘“appli-
eation or misapplication’’ of the Award, and denominates
the termination of employment under, the Award as being.
‘‘improper’’. Manifestly, the use of “such phraseology is
not to be commended. The Board that rendered the Award
was created under*the law of the land and its Award has
_eventyated in a judgment of the Court. Irrespective of the
inappropriateness of the phraseology, the purpose ‘of. the

Notice is not only to set aside the.Award and to restore |

firemen whose employment has been lawfully terminated,

but in addition to provide for the payment of damages or |

- losses alleged tp have been sustained by them. Manifestly,
this is not permissible. The validity of the Award and of

any steps taken under it during its effective_period, are a

, obviously not ‘‘bargainable“tssues’’.

It follows hence that Notices 1.and 2 are not valid ile
Section 6 of the Railway Labor Act and that, consequently, .
there is no obligation, on the part of the carriers to enter .

into negotiations concerning the subject matter of these |

- Notices.. The union may not resort to unilateral action or.

have recourse to self-help in order to bring about the re-

_ sults sought by the Notices. In other words, any strike

- for that purpose would be illegal as in violation of the
Railway Labor Act and subject to injunction.

At the trial counsel for the union moved to dismiss the Ja
complaint as to three of the carriers and also as to the

railroads constituting the Southern Railway System, on
the ground that Award 282 was inapplicable to them. For

reasons ete at the trial and also discussed i in the opinion’

wy *

‘ denied.

of this Court in the Akron case, supra, the motion was

The union also reiterated its position that the Norris-

LaGuardia Act was applicable to any attempt to enjoin any

strike of railroad employees. For reasons fully stated by
this Court in its opinion in the Akron case, which it would

‘be surplusage to repeat, the Court holds that the Norris-

| follows :

C bie to an action or motion for
such an injunction or a temporary restraining order.
in conclusion this Court may summarize its rulings as

1. The termination of the two-year effective period of
the Award of: Arbitration Board 282 did not restore the
rates of pay, rules, and working conditions existing prior
to the enactment of the Joint Resolution of Congress of

_ August’ 28, 1963. On the contrary, the provisions of. the

Award and actions taken under it during its effective
period created a new- set of rules and working conditions as

of the date of its termination. Any attempt to change the 7

new status may be pursued only by serving appropriate
notices under Section 6 of the Railway Labor Act and in-

__voking the course of action in the various stages prescribed

_by that statute.

9S

,2. Rights that have become vested as a result of the Counsel for the Brotherhood of Locomotive Firemen and Engenemen, ©
shortly prior. to the trial of this action, filed a motion that the Judge
disqualify himself, and this motion was accompanied by a. so-called
“affidavit of bias and: prejudice”. The Court denied the motion and oyer-
ruled the affidavit. This action was based on two grounds: first, the
affidavit was not timely filed in that it was submitted after a number of
motions were heard and disposed of in this action; second, the affidavit
contained no showing that the Judge had any personal bias or, prejudice
against the Brotherhood, but merely that the Judge had made certain
rulings that were adverse to the Brotherhood. The fact that adverse

. Tulings are made. by a Judge is not a groynd for an affidavit of bias and

prejudise. It may be noted in passing that the affidavit ascribes to the
Judge a statement’ that the Court would not sug sponte take steps to
enforée the collection of the fine theretofore imposed, but this could be
done only on the motion of the carriers or of the Government.- This
statement was in fact made by the Judge from the bench in open court
in view of the fact that the fine was imposed for civil and not criminal
contempt. It was made during a hearing on some of the many motions
in this litigation. Obviously, this statement does not. establish personal
bias or prejudice, but quite the contrary. The authorities on these points
were thoroughly reviewed by Judge Sirica of this Court ir United States
v. Hanrahan, 248 F.Supp. 471, and by Judge Wilson of the Eastern
District of Tennessee, in United States v. Hoffa, 245 F.Supp. 772. This
Court refers to and agrees with the discussion of the law on this subject

in those two cases, and it would be surplusage to repeat it here.

a)

omer = maid) senent

12

| APPENDIX B |
‘Appeals fronr-the United States District Court
. ° for the District of Columbia —

Decided May 12,1967 “

Mr. Milton Kramer was on the brief for appellants in |
Nos. 20,152, 20,229 and 20,249 and appellees in No. 20,172.

Mr. J ames D. Hill for appellant in No. 20,158 and appellee
in No. 20,191. a7 + % |

Mr. J oseph L. Rauh, Jr., with whom M essrs. John Silard,
Daniel H. Pollitt, Isaac N. Groner, David Epstem and

_ Stephen E. Moss, were on the brief for appellant in. Nos.
20,192 and 20,193 and ‘appellee. in Nos. 20,215 and 20,216.

Mr. Francis M. Shea, with whom Mr. Richard T. Conway .
was on the brief for appellants in Nos. 20,172, 20,191,
20,215 and 20,216 and appellees in Nos. 20;152, 20,158,
20,192, 20,193; 20,229 and 20,249. Messrs. David “Booth
Beers and Ralph J. Moore, Jr., also entered appearances

for appellants in ‘Nos. 20,215 and 20,216. t.

. Before DanaHER, Circuit Judge, Bastian, Senior Circuit
Judge, and Leventuat, Circuit Judge.

LzventHaL, Circisit Judge: * This opinion. deals with a
number of appeals and cross-appeals in the railroad work -
rules litigation. :
* It may help if at the outset we indicate generally the
- nature of our views, though their precise exposition and
the complexity of the issues require a long opinion. Part
I of this opinion reviews the history of the passage by
Congress in 1963‘ of a law providing for compulsory arbi-

tration of the work rules controversy with an Award of. -

two. years duration. In Part II we approve. the conclusion
of the District Court that the work rules in effect following .
the expiration of the Award in 1966 did not revert to the
1963 condition and that the new plateau of work rules,’
_ established for early 1966 by the Award, continued in

* As amended by Order of July 18, 1967.

\
\
\

13

effect unless changed in accordance with the Railway

- Labor Act. In Part III, reversing a ruling of the District.

Court, we hold that even prior to the expiration of the Award
the carriers had a statutory*duty to respond to notices
of the: unions and begin collective bargaining about the
rffles to become effective following the expiration of the
Award. In Part IV we conclude, reversing the District

Courts that the railroad companies violated their duty to

bargain with the Firemen, on the notice relating to pros-
pective work rules, and with the Trainmén. We affirm other
‘aspects of the decree, albeit for reasons somewhat different
from those of the District Court, since we conclude that
the railroads had no statutory duty to bargain over either
another: notice served by the Firemen, which sought to
undermine rights vested under the Award, or the early
‘notice served by the Conductors. |

‘

Understanding of the issues will be aided by a historical ;

review of the problem. ~ a

The phenomenal growth of railroads in the 19th cen- |

tury was accompanied by evolution of complementary em-

ployee organizations. Railroad workers were among the.

first to organize unions to present employee demands col-

‘lectively. The Order of Railway Conductors was founded -

in 1868, the Brotherhood of Railroad Firemen and Engine-
men in 1873, and the Brotherhood of Railroad Trainmen

in 1883. Labor relations in the railroad sphere has been —

the subject of Congressional enactments, and is now gov-
- erned essentially by the Railway Labor Act." sa
The last hundred years have also witnessed the evolu-

tion of an elaborate ‘‘common law’’ embracing the relations.

_ of railroad management and labor. There exists a roughly
defined system that is the product. of. long-established
practices amd understandings; collective bargaining agree-
ments, court decisions,and administrative orders. The sys-

tem covers among other things the, manning of trains and |

145 U.S.C. §§ 151-63 (1964), as amended, 45 U.S.C. § 153 (Supp. II,
1966). 7 ER ad 5

#2: a

4

the assignment of tasks to employees. These principles and

~

a

patterns of behavior are collectively denominated ‘‘work
rules.’?? As the Supreme Court has aptly put it, ‘the rail-
road industry with its complex of regulations is virtually
a ‘‘state within a state.”’"*> A ceis ata
Work rules concerning firemen date from the early days
of the industry. Their initial chore was to select and load
fuel into the wood-burning locomotive. The appearance
in the late 1920’s of the diesel engine spawned the prob-

lems that ‘beset the industry to this’ day. The carriers |

consistently contended that the former loaders of wood
were now merely. dead wood. Yet beginning in 1933 the
Brotherhood of Locomotive Firemen and Enginemen
(hereafter BLFE) negotiated individual agreements with

_various carriers to preserve the continued: status of fire-

men-helpers. The BLFE in 1937 joined with substantially
all United States carriers in signing the National Diesel.
\Agreement, providing for the employment -of firemen-

helpers on practically all diesel powered locomotives. Sim-
ar terms’ endured in subsequent contracts, includirfg the —

.

Diesel Agreement of 1950.:

_ © While work rules retaining positions for firemen became

- thus established, the industry’s quest for modernization

a

resulted in almost one hundred percent. diesel operation.

In 1956 the carries gave hint thaf intense competition
from other modes of transport and the resulting financial

-pressure would no longer permit preservation of the ancient:

’ status. During negotiations on, their proposal to give man-

. firemen the darriers withdrew this’ plan by agreeing to a.

agement ffie discretion to determine the employment of

three-year moratorium on.such changes in work rules. But

the.die had been cast, and the carriers argued that. the ver-

dict of history and technology had come in, pronouncing
railroad firemen extraneous members of ‘a train crew. So
too, they asserted, advanced technology and innovations

2 See generally ‘Comment, The Railway Work Rules Dispyte—A Prece-
dent for Compulsory Arbitration, 14 De Pavut L. Rev. 115 (1964). —
.% See Whitehouse v. Illinois Cent. R.R., 349. U.S. 366, 371 (1955),

quoted by Fortas, J., dissentizig in Transportation-Communieation Em-

ployees Union v. Union Pac. R.R., 385 U.S. 157, 176 n. 5 (1966).

a

15

~

‘ ‘ i . e~ . ge
would permit sharp reductions in the level of what is called
the ‘‘crew consist,’’ specifically the number of brakemen .
needed for the safe operation of the train. .

It is against the. backdrop of the always ‘sensitive and ane.
touchy problem’’* of overmanning and efforts to overcome .
it that we focus oni the events more immediately leading up
to these appeals. Jn 1959 the carriers served notices under
Section 6 of the Railway Labor Act,° proposing, the elimina-
tion of firemen from freight and yard service, and the abro- -
gation of.regulations fixing the size of train crews. The
following year, 1960,‘the unions served a series ‘of counter-
proposals directed at continuing and even extending the
use of firemen and at. setting the crew consist level at not

¢ less than one conductorand two brakemen plus such addi- - .
tional traininen as fhe assurance of maximum safety de-
manded. .

Shortly thereafter, in an effort to oii in the udiiestonat
of this dispute, President Hisenhower appointed a special :
. Presidential, Railroad Commission to. study ,the various, '
facets of the problem. This Commission issued its report
rand recommendations in 1962. In general | the carriers’
accepted the findihgs, but the unions balked. »,

Meanwhile, the lengthy” procedures contemplated and — a.
mandated*by the Railway Labor Act continued. Negotia-
_ tions and mediation failed to-bridge the gulf between the © oa

4 Brotherhood of ona a v. Chicago, Rock I. & Pac. R. R.,
382 U.S. 423, 430 (1966). ’

- 545 U.S.C. § 156 (1964) : Carriers and representatives of the employees a
shall give at least thirty days’ written notice of an intended change in
agreements affecting rates of -pay, rules, or working conditions, and the
time and place for the’ beginning of conference between the representa-
_ tives of the parties interested’ in such intended changes shall be agreed
upon within ‘ten days after the receipt of said notice, and said time shall a
-- be within the thirty days provided in the notige. In every case where such ©
notice of — change has been given, or conferences are being held
with reference thereto, ér the services of the Mediation Board have been
.” reqiiésted by either party, or said Board has proffered its ‘services, rates
of pay, rules, or working-. conditions shall not be altered by the carrier
» antil the controversy has been finally acted upon, as required by section
155 of this title, by the Mediation Board, unless a. period of ten days
has elapsed after, termination of conferences without: equa for or
proffer of the services of the Mediation Board. . oy

“ os LL OOO AEM AL AE LE ALA IA AE

@

é

= 16
parties. - The atmosphere of crisis heightened, for the Su- :
preme Court ruled in March of 1963 that all the tools of
the Act prescribed for the parties had been tried’and found
inadequate, and they were thus free to. resort to self-help :
that ‘is, the unions could lawfully strike, or the carriers
could unilaterally impose the new rules.®

The: last device in the statutory arsenal was invoked.
Acting under Section 10 of the Railway Labor Act, 45
U.S.C. § 160, the President, on a finding by the National :
Mediation: Board of the threat of deprivation of essential
transportation’ services, convened an Emergency Board
‘to make a prompt investigation and report. For’ thirty
days following the rendition of such a report no party may’
take ‘unilateral action. The investigation was made and
the report was filed.

Once’ again the unions proved unwilling to accede to the
recommendations of others. During July of, 1963 a flurry
of tense negotiations was spurred by the active interven-
tion of President Kennedy and the participation of Secre-
tary of Labor Wirtz. The unions rejected the President’s

’. proffer: of the services of Justice Arthur Goldberg as
_ arbitrator of the dispute.. For a fleeting period it appeared .
, that voluntary arbitration would provide the answer, but

_ _ though the parties indicated. willingness in: principle ‘they

could not get together in the Procedural particulars of
arbitration.

A strike was imminent. The country was faced with a
serious emergency. No outstanding techniques remained
to move the antagonists to a responsible accord. Only
Congress could avert a national; catastrophe, and it was
to Congress that President Kennedy turned for unprece-
.dented measures.’ The Administration proposal, submitted .
July.22, 1963, would have authorized the Interstate Com- .
‘merce Commissioh ‘to serve, in effect, as the agency or
compulsory settlement of the threat by empgprering it it to __

a 6 Brotherhood of Locomotive Engineers ¥ . Baltimore & O.-R:R., 372
‘U.S. 284, 290-91 (1963).

1 See Message from the President of the United States” Relative to ..

Railroad-Labor Dispute, H. R. Doe. No. 142, 88th Cong., 1st Sess. (1963).
. °S. J. Res. 102, ooh, 1 Cong., Ist: Sess. (1963).

. o. ’ i | . 17

, put into effect, on the application of the parties, any’ of
the changes proposed in the notices of 1959 and 1960 ¢ith ©
‘such. modification? as it found appropriate in reconciling
the private and public interest. That resolution made it
clear that these were to be only interim work rules to be
effective until the parties themselves agreed on more per-
“manent terms, but in- no event to last for more than two
years. - oe re
The law that was actually passed differed in various
particulars from the Administration measure. The ‘‘one
signifi¢ant change’’ ® made was the substitution of an inde- “”
pendent ad hoc board of arbitration for the Interstate
Commerce’ Commission, principally fore the reason that
Congress wanted to emphasize the peculiar and non-prec-
edential nature of its emergency intervention. By August
_ 28, 1963, this unique compulsory arbitration law, Public
Law 88-108, had passed both Houses of Congress and
received presidential approval. We set out this statute in,”
an appendix to this opinion. ° ‘ae Ae |
_ Public Law 88-108 expressly forbade any unilateral self-
help by the parties who had served or received the notices
of 1959 and 1960. It created, a Board of Arbitration (since
designated Board 282), to be composed of seven members,
two éach representing the carriers and unions, and the
other three to be selected by the President if, as happened,
‘the parties could not agree even on mutually acceptable
neutral members. The Board was ordered to pass on the
two focal issues of the use of firemen and the size and com-
position of train crews. The Award. (since designated
Award 282) was to ‘‘be binding og both the carrier and
organization parties to the disputp’ and . . : constitute a.
complete and final disposition of the aforesaid issues. .°. .”’
(Section 3). The effective date of the Award was set’ at
sixty. days after filing in the United States District Court
for the District of Columbja. According to Section 4 the
Award was to ‘‘continue in force for such period as the _
arbitration board shall determine in its ‘award, but not to
exceed two years from the date the award takes effect,

‘®Brotherhood of Locomotive Engineers v, Chicago, Rock-I. & Pac, . -
R.R., supra note 4, 382 U.S. at 432. - cs : ..

t

18

. unless the parties agree otherwise.’’?® It is this provision .

specifying the maximum mandatory duration that has_
sparked the issues we are. now required to judge. °

The Board met, held hearings, took evidence. It issued -
an Award that provided; ‘‘This Award shall continue in
force.for two years from the: date it takes: effect, unless
the parties agree otherwise.’’ An important extension
agreement is that of the carriers and BLFE, which ex-
tended the termination date to March 30, 1966. Except
for such agreement the Award expired at the close of the

two year period on January 24, 1966."

Award 282 held that the nearly, two hundred carriers
involved could eliminate ninety percent of the firemen ©
positions, and set forth a procedure for dismissal and‘
attrition. It was a staggering blow to the BLFE. The
Award did not, however, authorize a single spasmodic dis-
charge of thousands of firemen. Indeed, in some aspects.
it was ‘highly favorable to the employees, ?? see In re

Certain Carriers, Etc., 229 F. Supp. 259, 261 (D.D.C. 1964).

Thus the Award guaranteed permanent employment for
life, or until retirement or resignation, for every fireman
who had been in active service for more: than ten years,

10The measure was somewhat analogous to the legislative intervention |
in a 1916 rail dispute when Congress decreed that eight hours was to be
the measure for a standard day in determining compensation, and forbade
reduction in the standard day’s wage until thirty days after findings were
announced by a special commission created to study this system, to report

. back in six-to-nine months. The Supreme Court upheld this statute,

eharacterizing it as a form of compulsory arbitration that was “limited”
to a “reasonable period” fixed by the statute. See Wilson v. New, 243

US. 332, 345, 346, 351 (1917); Message from the President, supra

note 7, at 4-5; S. Rep. No. 459, 88th Cong., 1st Sess. 8 (1963); ‘
11 The parties and the District Court have all accepted and implemented

_ the Award as, effective January 25, 1964. With that date marking the

first day of the two-year period it is clear that the full two-year period
expired at the end of January 24, 1966. We see no valid basis for the
assumption of the District Judge that the Award was in existence on
January 25, 1966. It may be ‘regrettable, but we consider, the. Award
rendered on January 25, 1966, by a special board of adjustment with
respect to a dispute between BRT and the Green Bay & Western Railroad
Co. and. Kewanee, Green Bay & Western Railroad Co. to be without legal
significance, unless it has been adopted by poenals of the parties, a

question not before us.

19

with a comparable job insured for all with service of two
years or more. Those firemen with less than two years
seniority were accorded severance allowances, amounting
in some cases to six months pay. Under the terms of this
Award the carriers have pruned eighteen thousand fire-
‘men from their ranks, paid out some $36,000,000 in separa-

tion benefits, and providedscomparabie jobs ‘to twelve hun-

dred former firemen.
On the crew consist issue,.the: Board determined that
a single national standard would be inappropriate. It ruled

that no change in crew consist be made except pursuant,

to the Award. Then it provided that where existing work
rules required more or less than two trainmen, any party
might give notice of a proposed change. If after confer-
ences were held by the local properties no agreement was
forthcoming, the issue could.be referred to a special board
of adjustment created’ at the local level. The Award ar-
ticulated a series of ‘‘guidelines’’ to be followed by these
special boards in resolving particular disputes. Many crew

consist agreements and special awards were made under ©

this procedure. a

___ Pursuant to Section 9 of the Railway Labor Act, 45
U.S.C. § 159 (1964), as incorporated by reference in Section -

4 of Public Law 88-108, the unions sued in the District
Court for the District of Columbia to impeach the Award.
The attack was two-pronged. First, they contended that the
statute authorizing tompulsory arbitration in this context

was unconstitutional as‘beyond the power of Congress, or «

‘in 'the alternative as delegating power to an administrative

body without adequate specificity of standards. Second, the ~

unions argued that the Award did not conform to the
statute under which it cléimed vitality. The District Court
rejected both challenges, and both approved the statute and
confirmed the Award. Brotherhood of Locomotive Firemen
v. Chicago, B & Q. R.R.,-225 F.Supp. 11 (D.D.C. 1964). This
court affirmed,” 118 U.S.App.D.C. 100,.331 F.2d 1020, and
the Supreme Court denied certiorari, 377 U.S. 918 (1964).

In subsequent months there poured into the courts, here ©

12Qne judge dissented on the ground that the constitutional issues
should have been réferred to'a three-judge district court.

4)

7

20

and elsewhere, a number of actions, some brought by unions

'.and some by railroads, presenting a plethora of particular-

problems,” but these skirmishes need not detain us. What
is critical to the situation now before us is this. Instead of
using the two-year period specified by Congress and the”

- Award to continue meaningful negotiations looking toward

long range adjustments of the various vexing problems,
guided by the experience gleaned from functioning under |
the Award’s interim rules, the parties apparently focused
on whether the expiration of the Award would leave them
in‘a better position. than they might achieve Jy return to
the collective bargaining table, where some concessions
might have to be made. ce ee ae
The positions adopted by the parties, distilled to their
essentials, were as follows: The Unions believed.that upon
expiration of Award 282, authorized by Congress as a
‘‘final’’ settlement for a period ‘‘not to exceed two years,’’
it would have no continuing, significance. - They’ assumed
that immediately upon the expiration, of the Award the
status quo ante would revive and the National Diesel
Agreements would once more control. This position was ~
shared by the other unions who presumed the prior crew
consist rules would, return from a two year consignment to
‘limbo. But as a hedge the unions also, during the effective
period of the Award, served notices proposing in substance
that on termination of the Award there would come into
effect rules that were substantially similar to the old work
“rules, with relatively minor adjustments. - | |.
Not surprisingly, the carriers took a different view. As
they saw it, the status created by Award 282 had an en-.
during quality that transcended the formal effective period

' 413 These actions were largely concerned with the proper construction
of the statute or award in fegard to individual fact situations. See, ¢.g.,
Brotherhood of Railroad Trainmen v. Certain Carriers, Ete., 12 U.S.

° App. D.C. 230, 349 F. 2d 207 (1965); Brotherhood of Railroad Trainmen
WV. Chieago,-M., St. P. & Pac. R.R., 120 U.S.App.D.C. 295, 345 F.2d 985

(1965); Atchison, T. & S.F.Ry: v. Brotherhood of Railroad Trainmen,
324 F.2d 899 (7th Cir. 1963); In re Certain Carriers, Ete., 231 F. Supp.
519 (D.D.C. 1964); Brotherhood of Railroad Trainmen v. Missouri Pac.
R.R., 230 F.Supp. 197 (E.D.Mo. 1964); In re Certain Carriers, Ete.,
229 F. Supp. 259 (D.D.C..1964). ae rate Sie

6

21

of that Award. But they too, ‘‘just in’case,’’ served coun-
ter-proposals on the unions to preserve. the benefits the ~
Award had carved for them. As. will appear in greater
detail, the carriers declined to discuss the merits of any ~~. ~~
of these notices at the few conferences that were held
prior to the termination of the Award, reasoning that |

_ although’ Public Law 88-108 and the Award permitted
bargaining during that period they nevertheless stopped

_ short of imposing a legal duty to do so. These are the two
central questions of these appeals: What rules were in
force the day after Award 282 expired? What was the
duty of the parties to bargain about changing those rulés,
and when did it arise? |

These appeals reach us from the orders disposing of

suits and counter-suits seeking declaratory ‘and injunctive

' . relief, brought by the carriers and by the Brotherhood of
Locomotive Firemen and Enginemen (BLFE), the Brother-
hood of Railroad Trainmen (BRT), and Switchmen’s —
Union of North American (SUNA), and the Order of
Railway. Conductors and Brakemen (ORCB). See generally
Bangor & A.R.R. v..Brotherhood of Locomotive Firemen,
253 F.Supp. 682 (D.D.C.'1966) (Nos. 20192, 20193, 20215,
and 20216); Akron & B. Belt. R.R. v. Brotherhood of Rail.
road Trainmen, 250 F.Supp. 691, 252 F.Supp. 207 (D.D.C..
1966) (Nos. 20152, 20172), supplemented, 254 F.Supp. 306
(D.D.C. 1966) (Nos. 20229, and 20249); Akron & B. ‘Belt
R.R. v. Order of Railway Conductors, 253 F. Supp. 538
(D.D.C. 1966) (Nos. 20158 and 20191)."

D> %

II

In advance of the trial of these cases, the parties con-
sented to the preliminary adjudication of: the effect of the
expiration of Award 282. In a guideline opinion underlying
subsequent rulings, the District Court held that, even

14 Appeal’ No. 20316, Brotherhood of Locomotive Firemen (and H. E. ~
Gilbert) v. Bangor & A.R.R., arises from an adjudication of contempt
for violating a temporary | vestraining order. Although it was argued
together with these cases, it presents different questions and is being
considered separately, See Bangor & A.R.R. v. Brotherhood of Locomotive
Firemen, 255 F. Supp: 476 D.D.C. _ .

_ 22

though the Award formally terminated, it had créated a
_ “new plateau”? of work.rules, which were to continue in,
force until changed pursuant-to-the regular procedures of
the Railway Labor Act." See Akron & B. Belt R.R. v.

. ...Brotherhood of Railroad Trainmen, 250°F'.Supp. 691, 695-

97 (D.D.C. 1966). |
The BLFE argues that the intention of Congress in

- giving the ‘Award a limited 2-year life.was to deny it any

‘further legal effect, to‘leave the parties as if the award
had never been in: existence, and to restore the status quo .
arite with the result that the day after the Award expired
the work rules in effect were the same as those in effect
when the statute was passed.. This approach has a kind
of formal logic, and certain provisions of Public Law 88-108
could be read this.-way. Our aproach in ascertaining ‘‘legis-
lative intent’’ is hampered by the fact that the possibility
that by the end of the formal duration of the Award the
parties might not have agreed on anything to take its place ©
is a subject on which the legislative history is, to use Justice
Harlan’s phrase, ‘‘essentially negative, which shows with
_ fair conclusiveness only that Congress was not squarely
faced with the problem this ease presents.’’’* In our case
there is the added consideration that Congfess was un-
doubtedly aware of the problem but apparently thought
wisdom lay in avoidance of express delineation.

We think the mere limitation of the effective period of

the Award neither implies nor compels the construction the
» unions seek. Our ruling is that the work rules created by
the Award constituted a new plateau that was not auto-
matically eroded when the Award expired. The legal under-
pinning for our ruling is not the Joint Resolution, which
expired after 180 days of life—except insofar as necessary
to sanction the Award. The ruling is not based on the
_ Award, which had only a 2-year life, or on any agreement
of the parties. The predicate of: our ruling * simply, the

16 Compare Manning v. American Airlines, Inc., 329 F. 2d 32, 34. ~

(2d. Cir. ), cert. denied, 379 U.S. 817 (1964). See alse Manning v.
American Airlines, Inc., 221 F. Supp. 301 (S.D.N.Y. 1963).

16 National Woodwork Mfrs. Ass’n v. NLRB, —— U.S. —-, —,
35 U.S.L.W. 4349, 4360 (U.S. April 17, 1967).

ip A NE

23

force of the Railway Labor Act. Certain work rules were
in force on January 24, 1966 (or March 30, 1966, in the
ease of the BLFE). The mandate of the Railway Labor
Act requires that the work rules in effect on any particular
day shall also be in effect the following day—beyond the |
power of either party-to institute a unilateral modification

, —subject to change only in accordance with the procedures
prescribed by the Act.. These procedures begin with the

- notices required by Section 6 to be served by any party
seeking a change at least thirty days in advance of the pro- -
posed effective date of such change. This new-plateau
reasoning applies even though the work rules are estab-
lished by agreements of limited duration. ‘‘The effect of
§6 is to prolong agreements subject to. its provisions re-
gardless of what they say as to termination.’’ " It likewise
applies even though the work rules are established by an

arbitration award of limited duration. iM,

This by no means suggests that there is no legal signifi-
cance in establishing an award or agreement as one of
limited duration. The limited duration has the obvious
significance that ‘work rules can be changed for the post-
expiration period. The work rules can be changed, however,

_ only by compliance with the provisions of the Railway
Labor Act prescribing how changes in work rules are to be

.effectuated. |
What we are in effect holding is, that since Public Law
88-108 is silent as to the applicable legal rule, the case is
governed by the combination of undeniable physical facts
plus the g’ eral legal rule of the Railway Labor Act. The.
BLFE is onstfained to find superseding intention in Pub-
Tie Law 68-108 which would in effect obliterate not only
* the Award as a document with legal effect but also the -
physical facts that came into being during the 2-year period. ©
We think its construction of Public Law 88-108 would be
. unreasonable and inconsistent with the purposes and con-
text of the legislation. It must have been reasonably con- _.
templated that the Board of Arbitration might order de-
flation of the scope of existing’overmanning. “And it seems.
obvious that an automatic rescinding of any such pruning at

17 Manning v. American Airlines, Ine., supra note 15, 329 F. 2d at 34.

%

OS

.

24

the instant the Award was to terminate would spark the
most unsettling havoc. To reach this result would neces-
sarily mean trying to recreate a practically unrecoverable ©
‘situation and sweeping away a host of rights that had
already vested concomitant with the award, made final
under the Act, permitting reductions in the work force..
Such a view would also wipe out the supposedly permanent
guaranty of employment for those thousands of employees
_whose seniority, the Award decreed, entitled them to life-
time protections.
Sd ad 7 iit

We turn now to the question to what extent and by what
procedure the parties could and did lawfully invoke the
machinery prescribed by ‘the Railway Labor Act in order
to change, the work rules in effect on the railroads at th
expiration of the Award, rules that had been aoeadioon
by the Board (including the crew consist rules prescribed
% various local boards). /

As already stated, these work rules were not immutable.
Congress had enacted a compulsory arbitration measure of

_ limited duration. The appropriateness of a limited dura-

tion) for .a compulsory arbitration measure, articulated
by the Supreme Court 50 years ago in Wilson v. New,
_had beén emphasized by the President and Congress.’

_ When were the parties to bargain about possible changes
in the work rules that survived the Award? All parties
agree that negotiation during the pendency of Award 282
was permissible, but the carriers say it was not obliga-
tory. In our opinion, however, bargaining during the pen- -
dency of the Award 282 was not merely’ a matter for the
whim of the parties but was to be governed by provisions
of the Railway Labor Act, and these vectisisns remained
in effect during the life of the Award for purposes of

, regulating the responsibilities of the parties to bargain.

concerning changes proposed to become effective after the
expiration of the Award.

The principles and objectives underlying Public lek
88-108 reveal ‘that Congress placed a high premium on
the opportunity for continued —_— bargaining during |

18 "fee Note ep supra.

ALAR OEM ae

9 ? e
° . 4
ae = . a x>
«3 . ‘ :
: .
2

r

4 ~

25.

the life of the Award, in the hope and expectation, appar-
ently shared at that time by the parties themselves, that
the unions and carriers would themselves work out a long
range solution to thesé sensitive problems by the tradi- ~
tional devices of collective bargaining. This special statute

_ served to give the Nation a temporary respite from the .
threat of a disastrous national rail strike by forbidding —
for two years any unilateral changes or resort to self-help

: and imposing instead interim rules to cover the situation.
But as we have seen, both the statute and the Award ex-
pressly contemplated that the parties were free to alter or
_ extend the rules fixed ‘by Award.”

Public Law 88-108 established a procedure for formulat-
ing rules to govern for up to two years, in the absence
| of a negotiated pact. This did not displace the otherwise
applicable provisions. of the Railway Labor Act on. the.
duty to bargain on changes proposed to become effective
subsequent to the two-year period. President Kennedy in
his message to Congress expressed the desire that the
parties continue to confer on the ultimate resolution of
> their disputes.” A chief spokesman for the carriers, Mr.
J. E. Wolfe,” assured the Senate Committee that the car-
riers understood that the Administration’s bill ‘*imposes
a duty on the parties to attempt to settle their differences’’.
and would ‘‘protect the public interest as a result of the
establishment of these interim rules for a period of 2
_years or less while the parties undertake, through collec-
tive bargaining, to bring about a more permanent solution
of the problems.’’* We are aware that in the reshaping
of the measure the duty to bargain on the work rules was
not expressly spelled out, but the plan was surely retained. .
Indeed the preambles of both measures expressly and un- .
eS &
19 Indeed, on the crew consist issue, Section III.A(1) of ‘the Award
remanded the dispute to local properties “for negotiation”, and ory if
these further efforts to reach a settlement proved pointless were ‘special
boards of adjustment to be convened to fix the temporary rules. °
20 See Message from the President, supra note .7, at 6-8. .
- 21 Chairman of the a, Railway Labor Conference, an organiza-
tion ‘whose members conduct about ninety percent of all —— opera-
tions in the United States.
22 Hearings on S.J.Res. 102, Before the Senate C ‘omm. on Commerce,
. 88th ome Ist rae ser. 24, at 375 (1963).

4

“

26° ©

equivocally. proclaimed the care, taken to. select a sys-
tem which solved the immediate. emergency ‘‘in a man-
ner. which preserves and prefers solutions reached through |
- collective’ bargaining.’’ Changes were made by the Con-
gress—notably the substitution of an independent ad. hoc |
board for the Interstate Commerce Commission a’ .the
arbiter for the dispute. There was not a breath of a
_. suggestion, however, that Congress intended to remove
or even downgrade the policy that the parties themselves _
should confer in order to reach long-range solutions through
collective bargaining and agreement. . or

The carriers contend that all this means only that the
parties were free to bargain during the Award if they
wished, or even that they were encouraged to .do so, but
that for the two-year period the special act repealed
' pro tanto and by- implication the duty under the Railway
Labor Act to confer on proposed rule changes. We dis-
agree. In our view Public Law 88-108 was intended to
‘ work the minimum disruption of permanent railroad legis-_,
lation and normal collective bargaining. The only disrup-
tion wrought, the only ‘‘repeal by implication’’, was that
which necessarily accompanied the objective. of staving
off a’ cataclysmic strike by imposing a temporary settle-
ment. We detect.no glimmer. of an intimation that the
carriers were authorized to regard this as a two year hiatus
in their obligation to bargain. Rather, we find much to |
militate against such # construction. | |

It is notable that the parties to this dispute had already
agreed to submit their controversy to arbitration. They
stumbled over procedural details.. Congress viewed its
role primarily as draftsmen of the specifics of an arbitra-
tion agreement to which the carriers and unions had
already agreed in principle.* The statute in-Section 4,

28.The Supreme Court referred to this substitution as the only “sig-
nificant change” from, the Administration bill. Brotherhood of Locomo-
tive Engineers v. Chicago, Rock I. & Pac. R.R., supra note 4, 382 U.S. ©
at 432. am ' Sa

%4 See 8, Rep. No. 450, 88th Cong., 1st Sess. 9 (1963); H.R. Rep. No.
713, 88th Cong., 1st Sess, 12-13 (1963); Brotherhood of Locomotive
‘. Firemen v. Chicago, B. & Q. R.R., 225 F.Supp. 11, 18 (D.D.C.), afd,
- 418 U.S: App. D.C. 100, 331 F. 2d 1020, cert. denied, 377 U.S. 918 (1964).

4

AS SAA PICS LE AIOE ELE OL IMGIYAI LLL LE SAO RLE ALE LA EAT

Oe, .: aoe

the Award in Part IV, _and the reports of both congres-_
sional committees carefully specified that the effective np
tion of the Award was limited to no more than two years,
unless extended by stipulation, in order to restrict the —
‘“scope and. impact’’ of the statute.”

In essence then we have a.mechanism tantamount to an-
arbitration agreement, albeit one drafted by Congress, that.
confers on the arbitrator the power to imposé a settlement
binding for up to two years. It becomes appropriate, then, Lg
to consider what would have been the rights and duties of ay
_ the parties if they had themselves written the arbitration de
agreement. "We are not concerned .here with customary,” a!
adjudicatory or grievance arbitration. Although so-called
‘‘legislative’’-arbitration agreements are relatively infre-
quent they are not unknown. Under such agreements, pros-
pective rules and working conditions, instead of being de-
termined by agreement of the union and employer, as is cus-

, tomary, are determined by an arbitrator to whom the func; .
* tion is delegated.”* Such a determination by arbitration is
equivalent to a determination by agreement insofar as the |
. rights and duties of the parties concerning future modifica-
tion are concerned. An arbitration award does/not operate
to ‘‘prevent the [parties] from seeking through negotia-
tions under the.procedures provided for 7 the Railway
Labor Act or otherwise a new agreement . . covering the ©
TE..." :
Responsible conduct of ‘the process of collective bar-
_ gaining, for. consigeration. of proposals to modify work
rules established by an agreement or award of limited
duration, embraces conference and consultation prior to
the termination date. This is the way responsible busi- ©
nessmen deal with each other when they plan to continue
a business relationship—for example, in negotiating , ona .
contract or lease. before its expiration date, This is the

25§, Rep. No. 459, 88th Cong., Ist Sess. 10 (1963); see H.R, Rep.
No. 713, 88th Cong., Ist Sess. 14-15 (1963). -

28 See ELKOURI & amicus. How ARBITRATION Worxs 30:47 (rey. ed.
1068). ...
27 Sheehy, Ch.J., in Brotherhood of Railroad ao v. St. Louis
Sw. Ry., 220 F. Supp. 319, 326 (E.D. Tex. 1963).

af

e ») 28
way responsible employers. and unions implement the col-
lective bargaining process, and resfibnd to calls for change.
. And this is the- way railroads and railroad unions must .
respond under the mandate of the Railway Labor Act.
The purpose,of a Section 6 notice is:“‘to fix a proce
dure for the commencement of conferences ‘between rep-
resentatives of the two parties if changes are to.be made
in. the contract.’’® Wo‘rigid form for thesé notices is .
defined in the statute.”® All that is specified is thirty days .-
_written’ notice of a proposed change. The Act requires
that within ten days a time and place for conference be
’ set, and that the first conference be held within the 30-day

\ F . period.

~To’ recapitulate, .the Railway Labor: Act not only re- .—
quires railway employers and unions to confer and bargain
on work rules established by agreements or awards having
a fixed éxpiration date when one party wants to change -
the rules, but permits the statutory machinery to be in-
voked prior to expiration in order to seek an agreement

on changes to become effective on or after expiration.
Tf an agreement (or award). contains a fixed expiration —
date, rather than ‘the cémnion indefinite or automatic self-
renewal term, then the notice must indicate a’ proposed
effective date for changes that is not only at. least thirty
days after the notice, but also a time after the outstanding
agreement or award expires. Nothing in the Railway*Labor
Act, .or the scheme of Public’ Law 88-108, forbids service
of ‘a notice more than thirty days before the suggested
rules would or could be effective, and nothing relieves the
recipient from the duty to commence bargaining at that -
‘earlier stage. | 1 ca ee are
_ The carriers seek to buttress their claim of pro. tanto:
repeal by implication by arguing that it can hardly. be
supposed tliat Congress intended to permit. the unions to
ready themselves to strike on January 25, 1966. The. only -

forecast of that day we can find in the legislative history.

28 MeMullans v. Kansas, O. & G. Ry., 229 F.2d 50, 56 (0th Cir.),
cert. denied, 351 U.S. 918 (1956). Sel egies

29 See\ Detroit: & T.S.L.R.R. v. Brotherhood of Locomotive Firemen,
. 357 F. od 152, 153 (6th Cir. 1966). ‘ anil ;

ew

Pr he es 99

- ences triggered by

is the assumption that it would be preceded by an: agree- -

ment of the parties. And that in turn, in our view, assumes . —

that responsible collective bargaining would have been in.

| _ train some time prior to the-expiration date. If we turn
.. from speculation about legislative intent to the ‘realities

of the Railway Labo Act, we are aware that the confer-

de ction 6 notices’ are typically the be-
ginning and not the end/of the statutory procedures. If
conferences proposed by a Section 6 notice are unavail-
-ing, either’ party can invoke the services of the National
Mediation Board. While negotiations continue or the

_ Board has jurisdiction, no self-help is permitted. The

parties are free to submit their controversy to arbitra- —
tion. If none of. these techniques resolves the matter, the

President may convene an emergency board to investigate ©
_the dispute and report back on the issues. Only when all

- these steps have been exhausted are. the parties permitted

te act unilaterally. ‘‘For the procedures of the Act are
purposefully long and drawn out, based on the hope. that
reason and practical considerations will provide i in time
an agreement that resolves the dispute.’’ *

We do not say that the time of service of notice is com-
pletely. irrelevant to the duties of the parties. ‘It may be.
that’ a notice served the day after the Award: would:
betoken bad faith to the point of vitiating its validity. We
shall have occasion to point out that certain union notices -
weré defective for analogous reasons. But thé mere fact
-that the. union notices were served prior to January 25,
1966, did not relieve the carriers of their duty to confer
and bargain prior to January 25, 1966. We are not con-
sidering a case where the railroads, while conceding that -
the unions had a right to begin bargaining prior to the
expiration date, responded that the particular notice came
too early, perhaps on the ground that it did not permit

» enough experience under the existing rules to spawn real-

istic and informed bargaining. In the case before us the

"carriers flatly refused to engage in any — bargain-

30 Brotherhood of Railway Clerks, v. Florida E. c. Ry., 384 U.S. 238,
» 246 (1966). See also Farmer, Compulsory Arbitration—A Management
— sacl §1 wa. L, Rev. 396, 401-02 (1965).

>

80 . d

ing whatever prior to the expiration date: Except inthe
case of objectionable union proposals discussed below, the
earriers before us must be held to have breached their
statutory duty under the Railway Labor Act to confer
and bargain on the merits of proposed changes in work.
rules. The decree of the District Court embodies .a con-
: trary declaration, and to that extent it is reversed.

' We now consider the effect of our reversal of the Dis-

trict Court’s ruling that the notices were not effective to
require negotiation until after termination of the Award.
As we have seen, conferences are but the first step in
the chain of Railway Labor Act procedures. ‘Once they -
“have been frustrated, one side to the dispute can move to.
the next tier of procedures, and indeed in at-least one —
series of éases involving parties: before us the National
_ Mediation Board has accepted jurisdiction of the contro-
versy. The carriers have foresaken their right to insist
- on conferences by their refusal to respect effective Section
6 notices. The standard for good faith bargaining is quite
liberal. Certainly it.does not compel agreement. Judge
Bryan, after the most careful analysis, formulated the
frequently quoted standard that the—

requirement of good faith bargaining is really a re-
quirement of absence of bad faith. In order to show
such lack of*good faith it is necessary to establish
facts from which it can be reasonably inferred that
a party enters upon a course of bargaining and pur-
sues it with. the desire or intent not to enter into an
. agreement at all. American Airlines, Inc. v. Air Line
Pilots read n, 169 F.Supp. 777, 794 (S.D.N.Y. 1958).

Applying ial a test, the carriers have breached their duty —
to enter negotiations in good faith, for a refugal to bargain -
on an erroneous premise ‘of law is no excuse.” :

31 See, e. 9. = " Coder of Railroad Telegraphers v. Chicago & Nw. Ry. be
362 U.S. 330 (1960). We do not°consider attempts to obtain new work
rules incompatible with those imposed by the Award or with the report
- of the Presidential Emergency Board reflective of bad faith on the part of
the unions. Compare Pullman Co. v. Order of ‘Railway Conductors, 316
. F.2d 556 (7th Cir.), cert. denied, 375 U.S. 820 (1963).

31

t>

es]

IV

Although the statutory duty to bargain continued during
the limited duration award, it was not unaffected by the

temporary statute and the arbitration award. Their

emanations do affect the conceptions of bargaining in good |
faith, pursuant to a. good faith notice, inherent in the
scheme of the Railway Labor Act. We shall develop our
specific. rulings by considering the three groups of unions
in chronological order by dates of notices.

A. ORDER OF Rariway Conpucrors AND BRAKEMEN (ORCB)

One group of cases before us, Nos..'20158 and: 20191,

__egoncerns the Order of Railway Conductors and Brakemen

(ORCB).22 On Monday March 23, 1965, that union, ex-
pressly relying on the provisions of the Railway Labor
Act, served notices on the carriers which proposed a rule
requiring not less than one conductor and two brakemen
on all classes of road train service thirty days after notice.
That date was, obviously, a full nine months prior to the

~ expiration date of the Award. The carriers considered
- the notices premature and refused to concede any obliga-

tion to bargain on-the merits of the proposals.* ORCB
invoked the ‘services of the National Mediation Board,
which docketed the case, but suspended action when the
District Court held the notices premature.

We think it manifest that the proposal to scrap the

- Award during its life time could be broached to the car-

riers to see if they were interested but could ‘not be pre-
sented to them as a subject. of bargaining that was man-
datory under a statutory obligation. We agree with Judge
Bryan’s approach that the collective bargaining system of
the Railway Labor Act subsumes and presupposes. a bar-

82 The District Opinion is reported: Akron & B. Belt R.R. v. Order of~

Railway Conductors, 253 F.Supp. 538 (D.D.C. 1966). :

38 The carriers lodged a further objection on the ground that the
‘ORCB is not the certified bargaining representative of most of the road
brakemen directly affected by the notices. Compare Southern Pac. Co.
v. Switchmen’s Union of North America, 356 F.2d 332, 335 -(9th Cir.

. 1965). The parties have stipulated this issue out of these proceedings.

AOE NRTA PEAT a Nee remnant men me tater Mle ant

32

2

gaining ‘tin good faith.’’ ** The issué of good faith i is inter-
laced with ‘‘bargainability’’—a term of art. which means
not only capable of being bargained but also a proper sub-
ject of mandatory bargaining. We have already held that
the carriers were in bad faith in asserting that they had
no legal obligation to bargain during the life of the Award.
They had an obligation, we think, to bargain about changes
to become effective with the expiration of the Award. But
we also think that they had no obligation to bargain about
a proposal to make changes during the life of the. Award.

‘Such an obligation would be inconsistent with an inherent

‘and essential element of Public Law 88- 108, which was

‘intended to promote long range solutions through collec-

tive bargaining by removing the need to bargain over

_ immediate crises.

The ORCB argues: that the carrier’s duty to bargain is
reaffirmed by Section ITI of the award of Board 282 which
directs the parties to resume local -negotiations on crew

_ consist. We agree that the unions could have called on the

carriers to negotiate pursuant to the Award. But this is
entirely different from the statutory duty imposed by Sec-
tion 6 of the Railway:Labor Act, upon which the union

“purported to rely. The Award machinery was essentially

different from and displaced the Railway Labor Act con-
cerning” rules effective during the life of the Award. This
is demonstrable from the provision of the Award that .
specified that if the parties were unable to arrive at an
agreement their dispute should be referred to a local-arbi-
tration tribunal. This is, of course, entirely different from _
and supersedes the basic structure of the Railway Labor
Act which provides for compulsory arbitration only for
minor disputes, and contemplates mediation or voluntary
arbitration. where agreement has not settled ‘‘major dis-
putes,’’ i.e. disputes relating to changes in rates of pay,
rules or working conditions.** In this context, we agree that
these notices were premature. —

. %4§ee American Airlines Ine. v. Air Line Pilots Ass’n, oP, 169
F. Supp. at 793-95.

8 See Elgin, J. & E. Ry. v. ‘Burley, 325 Us S. 711, 722-28 (1948).

33 ce an,

B. BroTHERHOOD oF RaILRoaD TRAINMEN (BRT)

In another group of cases (Nos. 20152, 20172, 20229
and 20249) we are concerned with me Brotherhood of
Railroad Trainmen (BRT).*

On June 30, 1965, BRT served a notice proposing ‘that
beginning January 26, 1966 (unquestionably after the
termination of the Award) a new work rule be inserted
in the agreements between the BRT and the carriers |
requiring that not less than two, or in some cases three,
brakemen be included in the “erew consist’’ of the carrier’s
runs. In most instances the carriers in turn served counter-
proposals with respect to crew consist rules, although they
took the formal position that the BRT notices were pre-
- mature and that during the life of the Award the only
proper procedure for instigating crew consist changes was
in accordance with Part A(3) of Section III of Award 282.7

The carriers’ denial of an obligation to bargain with
the BRT was essentially based on the contention of pre-’
.maturity which we have already considered and rejected.

We turn to the carriers’ current argument that Section
6 of the Railway Labor Act-cannot meaningfully impose
a duty to bargain during the life of the Award about
changes following its expiration, since this would undercut
bargaining nin Ba to the Award. concerning work rules
during the life of the Award. We see no inherent incon-
sistency such as we found in discussion of the ORCB

proposals. Bargaining and arbitration for rules to be in -

effect for a two-year period are not inherently negatived
by tandem bargaining. under a different system over long-

, & B. Belt R.R. v. Brotherhood =~ org 250 F.Supp: 691,,
252 F.Supp. 207, and 254 F. Sup! D.D.C. 1966).

The Switehmen’s Union of North groan (SUNA) is also a party in
Appeals 20152 and 20172..

87 “Kither party in interest shall give written notice of any proposed
change in any such stipulated number of trainmen. ... The time and
place for the ing of conferences between the representatives of
the parties in in t with respect to such proposed change or changes °
shall be ray upon within 10 days after the receipt of said notice,
and said time)shall be within 15 days after the receipt of said notice.”

36 These are appeals from judgments following the opinions in Akron

34

range rules. Conflict in scheduling might be a temporary

problem, but it could hardly dignify a complete denial of
_ a duty to bargain over the ultimate and dominant issues.

C. BrotrHerHoop or Locomotive Firemen AND ENGINE-
MEN (BLFE)

The third major group of cases, Nos. 20192; 20193, 20215
and 20216, involves the Brotherhood of Locomotive Fire-.
men and Enginemen (BLFE).*

In November 1965 this union served notices to take effect
at 12:01 a.m. on March 31, 1966, the day after the Award, .
as extended by stipulation, was to expire. There were three
notices, each made expressly pursuant to the Railway Labor
Act. Notice No. 1 related to the types of engine services —
on which the employnient of firemen would be’ required,
and would have pegged employment at a level of 6000 jobs .
below the terms of the National Diesel Agreement, but far
above the level provided by Award 282. Notice No. 2 pro-
vided for compensation to firemen who had been relocated,
severed, or otherwise disadvantaged by the operation of

Award 282. By stipulation of the parties we need. not here

msider Notice No. 3, which set out a training program
or apprentices. The carriers contended that all such notices .
were premature, and. further contended that the second
and third were not even proper subjects of colleetive bar-
gaining. Several abortive conferences were held, but the
carriers resisted any attempts to reach the merits of the
proposed rules. .
In the BLFE consolidated declaratory judgment actions,
the District Court agreed with the. carriers on the major —
points, holding Notices 1 and 2 not only premature but also
non-bargainable although the carriers had not even chal-
lenged the bargainability of the first notice. The court’s —

_ interjeetion seems not only to have provided an additional

reason for holding that the carriers had not violated a legal

a obligation in the past, but also to have prompted the car-

‘eo

48 These are appeals from judgments. following the opinion in Bangor
& A.R.R. v. Brotherhood of Locomotive Firemen, 253 F.Qypp. 682
(D.D.C. 1966).

35

riers to seek restriction of their obligation to bargain in
the future. :

. With the controversy thus éxpanded when there was. -
already uncertainty as to the exact legal «ights of the
parties, the issue became the suljject of a legal ruling. Since
the genie can not be put back into the bottle, we turn to
consideration of the soundness of the. determination by the
District Court, and we conclude that it was not a correct |
statement of applicable legal doctrine. ©

The District Court reasoned that— ‘
_ the employees may not in the guise of serving notices
under Section 6 of the Railway Labor Act, seek to
abrogate or set aside the Award. It must be borne in
mind that the Award is the result of a compulsory:
arbitration conducted under a mandate of Congress
and has the stamp of judicial approval in the form
of a judgment in a proceeding to impeach it. Neither
a carrier, nor a union may institute proceedings,
directly or indirectly, to set aside any provision of
the Award, or the operations or activities that have
taken’ place under it or the results that have been
achieved. :
Since these notices were found not to “‘relate to matters
subject to collective bargaining under the statute,’’ the
court declared that they ‘‘need.not be complied with.’’ 253
F.Supp. at 689. We disagree and are of the view that Con-
gress did not intend that either Public Law 88-108 or Award
282 would permanently ‘excise from the scope of collective
_ bargaining any proposals that otherwise would have been -
. lawful under the Railway Labor Act. Applying this stand-
ard, we find that Notice No. 1 falls within the realm of
proper collective bargaining, but Notice No. 2 does not.
We begin our reasons for reaching this conclusion with
a review of the principles surrounding disputes about ~
bargainability. The settled tradition under the Railway .

> '®Bangor & A.R.R. v. Brotherhoodthe parties may still bargain collectively on these
issues, and resolve them among themselves. This proc-
ess may take place before the arbitration board is.
established; after the board has initiated its proceed-
ings ; and may, also take placé after the board has made’
an award. By agreement, the parties may make the
appointment of the board unnecessary; may make the
decision of the board unnecessary ; and may supersede
the decision of .the board—all through collective bar-
gainmg. H.R. Rep. No. 713, 88th. Cong., 1st Sess. 13
- (1963). (Emphasis added.) Se,

We find it impossible to accommodate the operative lan-
guage and-animating philosophy of Public Law 88-108 with
the District Court’s holding that Notice No. 1 ‘was non- -
bargainable. The carriers argue now that the District Court |
did not foreclose all possibility of altering the rules im-

posed by the. Board, but meant only to vindicate its efforts

~~

: 48 \. fiote, however, that apparently 6000 fewer firemen would ‘have
-been required under the- proposed: rulés than the National Diesel Agree- “

rs

~_~

-by precluding return to the status quo ante. Even if we
‘agreed that the BLFE’s Notice-No. 1 would Have that
effect, nothing we detect forbids proposing just such a
‘complete regression. At least, we hold that under the Rail-
way Labor Act, and after taking into account such qualifica-
tion of that law as is fairly implied from Public Law 88-108,

‘ . the BLFE could legitimately require that the carriérs nego-

tiate. about thesé proposals for work rules to be operative
in the fature. ~- ree :

Rie Nothing’ compels the carriers to accede totally to changes
~.. proposed in Notice No. 1, and indeed in light of the realities _-

of. collective bargaining it is unlikely that the BLFE. ex-
pects to insist-on completé acéeptance of its suggestions.

But certainly there was no disability prohibiting the opener

DO

. that the BLE. included-in its, first notice’ ye
Notice No. 2, however, falls itia-different category. It

did not propose. certain rule changes to govern the future -
-.* Operation of the. railroads. It was aimed directly and un-

_deniably at vitiating the Award of the Arbitration Board,

an Award that has long since received judicial confirmance -
‘-;_. and been. fully implemented by the parties. Although No-

tice No. 2 expressly refers to: Section 6 of the Railway

_ Labor Act, the notice on its face ‘demonstrates the irrele- .
~ vance of Section 6, and’ the “‘major disputes’” provisions *-
+ Of the.Railway Labor Act in general. ¥ a

_ » Notice No, 2: explicitly proposed: that ‘‘employees whose
. employment and ‘seniority were terminated by the applica-
tion.or misapplication of the Award of Arbitration Board

eu ‘ 282 will, on [the expiration of the Award as extended by

stipulation}, be recalled and restored to the seniority roster
» and employed with their original seniority date.and‘ used

¥ 88 firemen, (helpers). . .’?. In subsequent sections, the -
| ©. notice: proposed that employees terminated in the course -
' _.. of implementing~Award 282 be reimbursed for monetary

loss due to the termination and deprivation of seniority, in-

~~ eluding expenses incurred for meals, travel, lodging, and |

change of residence when relocating for other assignments.
¢. .- ‘ 7 . é ‘ 3 ni

“ment had provided. ~ - ©

.
a a oe

41

These proposals relate to alleged past grievances. ‘We
are concerned here with bargainability, and instinct in the
essence of collective bargaining is a notion of mutality,
that if a subject is brought up each side has-at least the
authority both to offer and to concede.. ‘ hace
. What is the status of the union concerning the subject
it proposed for bargaining’ in Notice No. 2? We turn to

‘Elgm, J. é E. Ry. v. Burley, supra note 35, 325 U.S. at

739: Sa

To settle for the future alone, without reference to
_or effect upon the past, is in fact to bargain -collec-
_ tively, that is, to make a collective agreement. That
authority is conferred independently. of the -power to
deal with grievances, as part of the power to contract
“‘concerning rates of pay, rules, or working ' condi-
tions.’’ It. includes the power to make a new agree-
ment settling for-the future a dispute concernirig the
coverage or meaning of a preexisting collective agree-
ment. For the collective bargaining’ power is not ex-
hausted by being once exercised; it covers changing
.. the terms of an existing agreement as well as making
one in the first place. aes
But it does not cover changing them with retro- .
active effects upon accrued rights or claims. For it:
is precisely the difference between making settlements °
effective only for the future and making them effective
retroactively to conclude rights claimed as having al-
ready accrued which marks the statutory boundary
- between collective bargaining and the settlement of
grievances. . an

The Court held that a union had no lawful authority to
- bargain for some of its members in settling claims they —

asserted against the rajlroad arising from the application
of new work rules. The court observed that the railroad
was not-entitled to assume from the union’s status ‘hs

bargaining agent-that it had the right to settle claims for - ©

past grievances, and that any agreements reached were

‘without legal significance.

whis analysis has an immediate bearing on our situation.

42

The BLFE proposed that the carriers jettison the rights
that had accrued to them under the Award, for the Notice
by its terms is limited to rehiring and reimbursing those
employees terminated in implementing Award 282. If
Award 282 meant anything it provided the sanction of
. Congress for the railroads’ authority to discharge thou-
sands of firemen. This permission. was sharply narrowed
' by stringent protective provisions under which severed .
employees have already received many millions of dol- |

lars in benefits. The rights to these payments vested when © ~

__ » thé employees were discharged: pursuant to the Award.
' The BLFE Notice proposed that tlie carriers renounce
. their vested rights. But. the bargainability of this subject
mattér as a proposal for a change in ‘‘work rules”’ is .
-undercut by the fact that the Elgin case squarely denies
the BLFE any %arrant in law to ‘‘bargain”’ over any pos-
sible concession”én the employee’s side to make a refund,
or even partial refund, of any severance benefits already
vested or paid, Clearly a proposal that cannot lawfully
be adopted is non-bargainable.*® Since the union could
. hot bargain away any part of the rights that accrued to
_employees under the Award, it could not compel the rail-
roads to bargain on a proposal that they surrender rights
_ that»accrued to the carriers under the Award, which de-
fined and limited the liability of the carriers arising from
changes made ‘in accordance with the Award. A

In Notice No. 2 the union* claimed there had been mis-
application of the award. As to this it suffices to point out
that Section 8 of the Railway Labor Act™ and Section’4 -
of Public Law 88-108 permit the union to bring forward,
questions of intérpretation as to the scope and applica- .
bility of the Award for resolution by Board 282.*1 But
these would not be comprehended by Section 6 of the Rail-
way Labor Act, governing proposed changes in work rules,

. See Southern Pac. Co. v.. Switchmen’s Union of North America,
supra note 33, 356 F. 2d at 334-35, 0 . . ;

5045 U.S.C. § 158(m) (1964): |
51 See Brotherhood of Railroad Trainmen v. Terminal R.R. Ass’n, ——
U.S.App.D.C. ——, — F.2d —— (No. 20135), decided this day.

2B,

° —

‘Subject to eliminatjon.”’” (p. 681) (Emphasis added). In’

re e
QO : “
.
‘,
\ *

, : ® ¢ —*
/ ©

Railway Labor Act unless and until changed’ in accord--
' ance with that statute. We must therefore discern what

“‘work rules’? were put into effect under and prior to the es

expiration of Award - 289. I |
The Award did not dispense with the useof firemen. It
began by continuing“in force all “‘agreements, rules, regu-

lations, interpretations, and’ practices, however estab-

lished,”’ except as modified by the Award. The Award
provided procedures whereby the carriers could mark
firenien jobs for extinction, and also established .a recipro-

cal power in the local BLFE chairman to immunize from.

elimination ten percent ofthe crews listed. The Opinion
of the Neutral Members of Board 282 makes abundantly
clear that the. Board recognized that the Award had the

effect only of sanctioning a procedure of limited duration ,

for accomplishing a reduction in crew consist and ‘the use

. of firenien. The Board explained that it was conscious |
that, the immediate. impact of the Award might be small,
but that this was a deliberate choice reflecting concern

for the human factor in the equation and the goal that

the Award would establish*gome principles that could con-

tribute to a final solution t8 the problems: :

The Board’s award will remain in force only two
years. Within that time the effect of attrition may be
such that the number of firemen or train crew jobs
actually. eliminated may be comparatively small.
Opinion of Neutral Members, 41 Las. Ars. 680, 681.

The Board members themselves characterized what they
did as having. “festablished a procedure for determining
whether, considering safety, workload, and adequacy of
transportation service, particular jobs should be made

explaining why the Award provided that the union could

insist on saving ten per cent of the jobs marked for elimina- .-
tion, the Neutral Members reasoned that: this procedure |

would obviate the possibility of objections, based on safety
or convenience, to individual proposals for job reduction.
The underlying premisesas explicated by the Board, was
that the Award would be able to authorize such reductions

54.
| | “a
only during two years, and/unless an efficient procedure ° |
were provided for making specific decisions ‘‘the likeli- :
* hood of reducing [the number of disputes over individual ‘
* jobs] significantly in a two-year period ‘would not be very
. .great.”’ (p. 690). Because of the two-year limitation on
the Award, the Board doubted that any standards it might
prescribe could be applied in particular disputes ‘ ‘in suffi-
cient time to yield any significant results.’’ (p. 690).
As the event turned out*the carriers used the Award’s .
procedures to terminate many. more firemen jobs than the
- Board predicted... The Neutral Members’ underestimate
does not undercut but rather underlines the view that the ©
, Mechanics for reduction in firemen jobs were procedures
of necessarily limited duration, rather than work rules
with continuing vitality. cae
_. Our conclusion is that the provisions in the Award for.
establishing new firemen levels did. not constitute ‘‘work
rules’’ in the classic sense,:as we have used and applied
that term, but instead are more accurately described as
procedures for establishing new work rules. The history
_ of labor.relations agreements in this industry reveals that
the manning work rules were expressed in terms of ulti- -
mate results, like one-conductor-and-three-brakemen, or
' firemen-required-on-all-freight-locomotives, and were not.
‘formulated.in terms of a methodological approach. This °°
. practical construction of the concept of work rules is Te- :
inforced by the Board’s expressions treating the mechanics
of lists and designations as procedures. Accordingly, for
purposes of determining what ‘‘work rules’’ were in force
on the last day of the life of Award 282, we do not con-

. 1In the course of Congressional’ testimony, Chairman Ralph Seward of
Board 282 And Assistant Secretary of Labor James Reynolds indicated
that their original expectation was that the procedures would lead to a
- reduction of about 5500 jobs, rather than the 18000 the carriers succeeded
in blanking. See Hearings on the Administration of Public Law 88-108
Before the Senate Comm. on Commerce, 89th Cong., 1st Sess., ser. 89-45
at 363-64, 465-66 (1965). And according to Senator McGee, the number
of firemen eliminated also exceeded the expectations of “Members of the
U.S. Senate.” Hearings on the Administration of Public Law 88-108
' Before the Senate Comm. on Commerce, 89th Cong}, 2d Sess., ser. 89-56,
at 1030 (1966). - % . aes

.

~ ALIFE EN PR eS on th ry

sider the procedures provided -by the Award for chang-
ing job: requirements as being themselves part of the sub-
stantive ‘‘work rules.’’ These procedures, like the pro-
cedures for changing substantive work rules for crew con-

-' sist of trainmen, had no effectiveness after the expiration . :

of the Award.

This construction “also gives what. we consider the
appropriate effect to the undeniably significant provisions

in Public Law 88-108 and Award 282 that limited the effec-
tiveness of the Award to two years. Since the Award did
not become effective for sixty days after filing, the parties
had more than two full years to plan its implementation.
The pre-existing work rules, contained in the National
Diesel Agreement of 1950, stipulated that ‘‘A fireman, or

a helper, taken from the seniority ranks of the firemen,
shall be employed on all focomotives.’’ ‘ Award 282 con-.

tinued this requirement (and any others stemming from
agreement or practice), until changed in accordance with
the Award. For two years plus, the carriers had the

machinery for proposing, at three month intervals, the:
crews that they thought could safely and efficiently dis-

pense with firemen positions. The. fruits of these notices
and negotiations, after adjustment for the Union’s ‘ten

percent retention, effected what must be re arded as-new ~

‘‘rules’”’ applicable to the particular runs involved. : But
when the Award expired, so did the procedures it sug-

‘gested. What survives is the complex of work rules in

force on. the last day prescribing the substantive terms
that controlled.the use of firemen on individual runs.

In consequence, a carrier is not only prevented* from
taking ‘‘affirmative acts’’ under the Award to reduce the

“use of firemen, as the District Court properly held, but

also, if the carrier was required to keep a fireman on. a

particular crew as. of the last day of the Award, it cannot

thereafter change the work rule by discontinuing that
position, except by agreement or in accordance with Sec-
tion 6. The work rule that continues in force provides

for a fireman on this crew, and that is not changed because

the particular fireman on duty dies or retires,
“Conversely, however, if the work rule in effect on the last

GB

e 56

day of the Award provided that a fireman was not
required for a particular engine crew—because that crew
was included on the carrier’s list of proposed. blankable
' Jobs and the union’s local chairman did not designate it
for retention of a fireman, within the ten percent of crews
he could control—the work’ rule does not require a fireman
on that crew even though for one reason or another the
carrier had not removed. or transferred that fireman by
the end of. the effective period of the Award.? The carrier
may thereafter transfer him, or refuse to replace him
when he dies or retires. Such action would not constitute
- a change in work rules but simply an action in accordance
with the work rule in,force on the critical date, a rule
which provided that no fireman was required for that crew.

‘ The National Diesel. Agreement was not set aside by the -
‘Board. As.already-noted, the opening section of the Award
provided that. agreements in force continued in effect
_ exeept as they were modified by the Award. The Award
provided a procedure for méddifications during ‘the two-
year life of the Award. We recognize that it may be ~
turning back the clock to an era that two presidentjal
boards and the Neutral Members of Board 282 have agreed-
is technologically outdated, but: takitig into account the —
structure of Award 282 as issued, we see no alternative
to holding that any new runs created after Award 282 are -
subject to the National Diesel Agreement, and its require- .
ment of a fireman on each engine crew.

Moreover, the’ National Diesel Agreement is in effect —
even though the only reason why a-change in its work rule
was not made under’ the Award during its life time was the
fact that the change was blocked by a state’s full crew
law. The Supreme Court has expressly held that while
such state law was in effect the Board had no capacity to
make a change contrary“to its provisions. See Brother-
hood, of Locomotive Engineers v. Chicago, Rock I. & Pac.
R. R., 382 U.S. 423: (1966). The opening sections of the

| 3 The werk rules effectuating the pen made under the Award included
the ancillary protective provisions of Part II.C for individuals transferred:
or separated in implementing the change. an work rules continued in

Moet after the Award.

Pe PSST TR D SPOS NRCS MAP ER Ni OP

«3

Oo a

57

4°

Award dealing’ with the use of firemen and with crew

consists provided for the continuation of work rules, how-

- ever established, unless changed: pursuant to the Award.

The repeal of a full crew law subsequent to the expiration
of Award‘282 came after expiration of the Board’s author-

?

Award.

| IL Validity of Awards Made January 25, 1966.

In one respect we have decided to grant reconsideration —
and modify our opinion as requested by the carriers. In -

our opinion of May 12, we held that Award 282 was no
longer in existence on January 25, 1966, when a ‘special

adjustment board rendered crew consist awards’ between -
the BRT and two carriers, and that therefore these a@trds .

were without legal significance. — - ) oe
_ We rejected by implication the carriers’ argument in brief
that the BRT had stipulated to the contrary. On rehearing

the carriers point out decisions interpreting statutory pro-~

visions that an act be done within a specified period from
the date of another action or event so that the initial or

trigger date is excluded from the computation. As we were |

aware, that is of course the modern doctrine and is estab-

lished by the decisions of this court.among others.* It is:
the rule adopted by Rule 6 of the Federal Rules of Civil:

Procedure. -We thought this rule inapplicable because the

starting date did not involve problems of a fractional day,
and was. in turn’ detérmined by a still earlier computation |
_beginning with an initial date that was concededly excluded _
from computation. This:led us to the view that the two-year —

ity under the temporary statute and after expiration of.
the power of a carrier to ‘invoke the ‘procedures of the

period prescribed by the Act as the life of the Award did --

not extend beyond 731 full days (two years of 365 days each,

plus February 29, 1964), and that the Award which started

at 12:01 a.m. on January 25, 1964, should not be stretched ° _
to include the 732nd day of January 25, 1966... We felt that de

8 E.g., Freeman v. Pew, 61 App. D.C. 223,59 F. 2d 1037 (1932) ; Burnet

v. Willingham Loan & Trust Co., 282 U.S. 437, 439-40 (1931); Prince v. :

>

United States, 185 F. Supp. 269, 271-272 (E.D. Wis. 1960).

63

“hd ate ‘“s«. APPENDIX D |
Before: Dananer, Circuit Judge; Bastian, Senior Circuit.

- . Judge ;and Levenruat, Circuit J udge.
oO Ane _ Jupement |
, These causes came on for hearings on the records of the
District Court and the briets submitted by counsel, and

- were argued by counsel. sone pecs pbs,

* On May 12, 1967, this court filed an opinion in the above-

‘“. captioned ‘causes, and invited the parties to submit pro-

posed judgments: and. ‘to request supplemental rulings

within ten-days thereafter. ae a.
‘The railroads submitted proposed judgments, and re-

quests for supplemental’ rulings, and filed petitions for

rehearing. The unions also submitted proposed judgments

and requests for supplemental rulings, and filed opposi-

tions té the railroads’ petitions for rehearing. feos)
Upon consideration of the foregoing, it is.

., ORDERED AND Apsupcep by the Court that, except insofar
as they are granted in the supplemental opinion filed this
date, the aforesaid petitions for rehearing are denied; and
it.is . ane
¢ FurtuerAOrperep anp ADJUDGED by the Court that, inso-
far as reflected in the supplemental opinion filed this date, .

» . the requests for supplemental rulings are granted; and it is
rrek FurtHer OrperEp aNp ApJUDGED by the Court that these
cases are remanded to the District Court with directions
to vacate the orders and decrees appealed from herein dnd
enter orders and decrees consistent°with the opinion. of .
this Court filed May 12, 1967, and the supplemental opinion
filed this date. ~ | ;

Per Curiam.

*64 °
_ APPENDIX E ‘oat
' Before: Danauer, Cireuit Judge ; Bastian, Senior Cirenit
~_— and LEVENTHAL, Circuit Judge, in Chambers.

aa Sines AND OnvER

These cases were argued on cross- -appeals filed by the ©
Brotherhood of Locomotive Firemen and Enginemen
(BLFE) in Nos. 20192 and 20193, and by the carriers,
Bangor and Aroostook Railroad- Co. et al, in ‘Nos. 20215
and 20216.

_ This court rendered an opinion in these cases, a others
consolidated therewith, on May 12, 1967, and filed a “-
plemental opiniop on July 31, 1967.

The carriers filed a petition for rehearing and davitie- ,

_ tion on August 15, 1967, and on August 25, the BLFE filed
a memorandum in opposition :to that petition.

The carriers assert, among other things, that this court’s

‘ opinion, and particularly its supplemental opinion, reflects.
a misunderstanding of the meaning and application of

q pga 282 intended by the Board of. Arbitration ( Board
282 :

This court has determined that Board 282 has continu-
ing vitality for deciding questions of interpretation as to

_ the scope and application of the Award. (Opinion of May
12, 1967, pp. 39-40.) - It has also made clear that even on
a question where the Board did ‘not have final authority,

accept the interpretation of the Board, even‘ though con-

trary to the interpretation the court would itself have

. rendered, so long as the Board’s interpretation was not

unreasonable or contrary to ascertainable legislative intent.

(Supplemental opinion of July 31, 1967, p. 15).

. MCcCoRDINGLY, now ‘upon consideration of the foregoing,
of this court’s opinions above ~ ae on the record
before the court,

It is OnpERED by the court that the carriers’ petition of
August 15, 1967 is denied, without prejudice however. to
the Board’s seeking leave within thirty days from the date
of this order to submit as amicus curiae a showing of

¥ .

ie. interpretation of the underlying statute, the court would P

a

* 282 as to the proper meaning and applicability of its award.

65 ie : iy

respects, if any there be, in: which the Opinions of this

court are inconsistent with the understanding of Board

Issuance of the mandate will be stayed for thirty days.

It is FurrHer Orperep that the court’s supplemental
opinion of July 31 be clarified by the addition of the follow- Ce
ing as a final paragraph of part I of the opinion (p. 13
of slip opinion). | anes aoe

“The carriers argue in effect that the Award at least
authorized the carriers to blank firemen positions during
the lifetime of. the Award, with this personnel action re-
maining in a state of suspended animation until its vitaliza-
tion upon repeal of the full crew law. The Court noted
in Rock Island, supra, 382 U.S. at 423:

Congress wanted to.do ag, little as possible in® solving -.
‘ the dispute which was. before it, and we note that
this dispute was not over the size of crews in States
which had full-crew laws. — :

The Board authorized the carriers to list jobs for blank-
ing, and thus provide @ classification ‘‘when and if such
full crew laws are amended or repealed.’’ Answer of May .
17, 1964, to Carriers’ Question No. 5 under Section IT—
Part B(1) ‘and B(2). But this conditional blanking was
only available as an advance procedure made fruitful if
the’ ‘necessary condition materialized during the 2-year
lifetime of the Award. See Opinion of- Neutral Members,
quoted supra, 41 LAB. ARB. at 681. The Board’s energy
was not limited to ‘‘the dispute which was before it [Con-
gress]’’ at the passage of the law, but also extended to
firemen* manning disputes arising during the critical 2-
year period. But the Board’s order and interpretations
cannot be stretched beyond the Congressional’ frame of
reference to resolve academic differences or disputes that
were neither in being at the time nor projected as arising
during the 2-year period.’’
So ordered.

. man and adopted rules of procedure. On September 23,

66 >

APPENDIX F
_ Awarp

This Award is made pursuant to Public Law 88-108, 88th
Congress, S.J. Res. 102, enacted August 28, 1963,

The organization parties to the dispute named H. E.

Gilbert and R. H. McDonald as organization members of
this Arbitration Board. The carrier parties to the dispute
named Guy W. Knight and J. E. Wolfe as carrier members

of the Board. Benjamin Aaron, James J. Healy, and ©
Ralph T. Seward were named as neutral members by, the

President. __ oe |
On September 11, 1963, the Board met, elected its Chair-

1963, in accordance with Section 3 of the Joint Resolution,
the Secretary of Labor furnished to the Board and to the
parties to the dispute copies of his statement to the parties
of August 2, 1963,.together with memorandums setting
forth his‘ understanding of the matters with respect to
which the parties were in tentative agreement and the

extent of disagreement with: respect to matters on which: __

the parties ‘were not-in tentative agreement. _ .

Public hearings were held in Washington, D. C., on
twenty-nine days between September 24 ‘and November 2,
1963, at which witnesses were heard, exhibits’ introduced
and arguments made. , Rebuttal exhibits and written argu-
ments were received on November 9, 1963. a.

On November 6 and 7, 1963, the neutral members of the
Board, with the agreement of the parties, visited certain
railroad yards in the Chicago area. The sole purpose of
these visits was to assist the neutral members in under-
standing the evidence and arguments presented at the
formal hearings and nothing said or shown to them during

- these visits was accepted as evidence.

During the course of. the proceedings, questions arose
as to whether -certain carriers ahd certain of their em-

' ployees were or properly should be parties to the dispute

and subject to the board’s jurisdiction. The carriers with
regard to which such questions arose were the Union Rail-

* road Company, the Florida East Coast’ Railway Company,

? .

eis

reer

proceedings required for such a determination, N othing
in this Award, however, and no action by the Board, in-

No. 1 or Employees’ Rebuttal] Exhibit No. 33, listing certain
carriers .as parties to the proceeding, ‘is intended to prej-
udice the position of any carrier or any organization as
to these jurisdictional questions. ©

ment, and has given due consideration to those
on which the parties were in tentative agreemént. Further, '
the Board has given due-consideration to the effect of the

a Award upon adequate and safe ‘transportation service

to the public and upon the interests of the carrier and em-

After a full consideration of the evidence and arguments.
and upon the entire record, the Board makes a complete
and final disposition of the issues submitted: and finds and
awards as follows. .

I. Dusposrrion or Section 6 Notices

Those portions of ‘the carriers’ notices of November 2,
1959, identified as ‘‘Use of Firemen (Helpers)-on Other -
Than Steam Power” and “Consist of Road and Yard
Crews’’ and that portion of the organizations’ notices of
September 7, 1960, identified as “‘Minimum Safe Crew
Consist’? and implementing proposals pertaining thereto
are denied, except to the extent hereinafter provided. °

1 NR RR EI FN ROIS ON
7

¢

[td

“~

—., my

IT. Use - or FIREMEN (Hetrers) on Oren THan Steam
7 Power |
oer le 2 i, ~ Po

| Part A—Savine CLAUSE
A(1). All agr ements, rules, regulations, interpretations,
and practices, However established, with respect to’ the
employment of firemen (helpers) shall continue undis-_
‘turbed except as modified by the terms of this Award.

> Pane B—Repuctions 1x J OBS
B(1). Within’7 days following the effective date of this

_ \ Award, each carrier covered by this Award shall have the .

right to give to each local chairman of the organization

representing firemen (helpers) in each fireman (helper)

- seniority district a list of pool and regularly assigned

freight engine crews ( including pool and regularly assigned
crews used in mixed, miscellaneous, and unclassified serv-
-ices) and a list of regularly assigned yard engine crews
(including regularly assigned crews used in transfer, belt.
line, and miscellaneous yard services) then employed by
the carrier in each such seniority district. The two lists
shall inelude those engine crews’ which, in the carrier’s ©
judgment, based upon considerations of safety, undue work
burden, and adequate and safe transportation service to
the public, do not require the services of a fireman (helper).
B(2). Each local chairman, within 30 days of receipt of
the carrier’s lists, shall have the right, based upon con-
siderations of safety, undue work burden, and adequate
and safe transportation service to the public, to designate
the engine.crews in which the carrier shall be required to |
continued to use firemen (helpers) ; provided, that such
designated crews shall not be-more than 10 per cent of the ©
freight engine crews, nor more than 10 per cent of the -
yard engine crews, in any seniority district, as such crews

_ are listed by the carrier. Each local chairman’s designa-

tion of crews to be operated with firemen (helpers), made
as provided herein, shall be final and binding upon the
parties in interest and shall not ,be subject to challenge or
review; but prior conference shall be had between -the
parties in intérest with respect to the crews to be so desig-

.
DO ieee ee ee ee en ne

69

receipt of the said lists.

’ B(3). At~3-month intervals following the date of the
carrier’s original lists, the carrier shall give to each local -

B(4). Copies of all lists herein required to be furnished

~ - class‘of freight service (including all mixed, miscellaneous,
and unclagsified services) or in any claés of yard service ©
(including all transfer, belt line, and miscellaneous yard —

Services), other than in crews designated by the local chair-

man, pursuant to the provisions of paragraphs B(2) and :

le .

; 70

from the carrier’s payrolls and. have all of their employ-
ment and seniority rights and relations terminated, and in
such case shall be entitled to a lump sum separation allow-
ance in an amount to be determined as provided in Section
9 of thé Washington Job Protection Agreement of May

_. 21,1936.

C(3). Firemen (helpers) hired prior to a date 2 years
prior to the effective date of this Award whose average.
monthly earnings as firemen (helpers), hostler helpers,

hostlers, or engineers have not exceeded $200 during the

24 full calendar months preceding the effective date of
this Award, may be separated from the carrier’s payrolls
and have all of. their employment and seniority rights and
relations terminated with a severance allowance equal to
100 per cent of their earnings during the preceding 24
calendar months; or may elect to remain oh the senjority
lists of the carrier with rights to.such work as they are
qualified to perform, and which may be or become avail-
able to them, as provided in Part D of this Award.’

(4). Piremen (helpers) hired prior to a date 2 years
_ prior to the effective date of this Award, who have not
. performed service as an engineer or as a. fireman (helper)
since that date, may be separated from the carrier’s pay-

a

71

of the carrier, or to employees on appropriate leaves of

absence, or to discharged employees whose cases for re- __
instatement are pending, providing, if net-so situated, they

- could have met the minimum requirements of service or
. @arnings, - |

_ (6). All other firemen (helpers ) with less than 10 years’
Seniority on the effective date of this Award shall retain

their ‘rights to and obligations .to Protect engine service ;
assignments as provided by rules in effect on the day pre- —

ceding -the day this Award becomes effective, except as

man (helper), brakeman, or clerk In the same or another

Seniority district) for. which they are, or can become, quali-

fied.’ The offer of another job shall carry with it relocation
in Section 10 of the Washington Job Protection Agree-

ment of May 21, 1936, the continuation of accumulated _

seniority district must, within 3 days from receipt of

written notice, accept the job or all Of his employment and’

:

seniority rights and relations shall be terminated and, in

e'.

‘ ee
“ .
: . . .
1
°. ¥ a
° . . : e

that “event, he shall be entitled to one-half the severance
allowance provided for in paragraph 0(3) of this Award.
If such junior fireman (helper) shall fail to accept such .
job. and thereby terminates his employment as herein pro-
vided, the next most junior fireman (helper) on that same
' roster must accept the job within 3 days from receipt of:
written notice or forfeit all of his employment and seniority
rights and relations with the allowance provided for above.
. In each case of refusal to accept such job offer the next.
most junior fireman (helper) shall be required to accept,
as provided for above, or forfeit his employment and
seniority rights and relations with, in each case, the allow-
ance provided for above, until there are. no firemen
(helpers) with less than 10 years’ seniority remaining on
the seniority roster for the seniority district in which the -
job offer is located. - Thereafter, the samie procedure as
is provided above shallbe followed in the fireman (helper)
seniority district which has its principal extra list for
firémen (helpers). closest to the location of the job offered.
“ C{7). Firemen (helpers) with 10-or “more years of
seniority as of the effective date of this Award, who are
not separated from the earrier’s payrolls under the. pro-
visions of paragraphs C(3) or C(4) of this Award, shall .
retain their. rights to and obligations to protect engine
‘Service assignments as -prévided by rules ig ‘effect on the
day preceding the day this Award becomes effective, except
as modified by and subject to the provisions of Part D of
‘this Award, unless gnd until retired, discharged for cause,
‘or otherwise removed from the carrier’s active working ;
lists of firemen (helpers) by natural attrition,

Part D—Ricuts To: Work

D(1). Firemen (helpers) who elect to remain on the
seniority lists of the carrier as provided in paragraph C(3)
of this Award shall be entitled to exercis# their seniority
rights as firemen (helpers) to available employment in
engine crews. used in passenger service and in freight and
yard engine crews designated by thé local chairmen in .
‘their respective seniority districts as* provided in para-’
graphs B(2) and B(3) of this Award, as hostlers or hostlery.

73 a :

: , ; ‘ce ,
& ; ‘ :
. o

2) 8) A CS TINS ORE ? 4

cemienacrewessspcane™

74

Pi)
ad

temporary vacancies for firemen (helpers) in passenger
service, or temporary vacancies for firemen (helpers) in

_erews designated by: the local chairmen as provided in
Sic tis and B(3) of this Award.

Parr E—Continvine eee

B(1): Within 30 days following the effective date of
this Award, the ‘parties shall establish a National Joint
Board charged with responsibility for making an intensive
and continuing study of the experience in road freight and

' yard service with and without the employment of‘firemen .
‘(helpers) during the period that this Award remains‘ in
.,effect. During the 3-nionth period before the=date this
- Award. is due to expire, the Natiofial Joint Board shall
| prepare and. issue to the parties a report based on its study.

'-E(2). The National Joint Board established m para-

‘graph E(1) ‘shall-consist of 4 members, of whom 2 shall

be selected by the carriers, and one each by the Brother-
hood of Locomotive Firemen and Enginemen, and by the
Brotherhood, of Locomotive Engineers. The expenses of
the Board shall be borné by the participating parties.

III. Consist or Roap anp‘Yarp Crews (OTHER Tran Encine |

uarecy)

Parr A—Bastc ‘Provisions a

A(1). The issue of crew consist (other than engine serv- .
.ice) shall be remanded to the local properties for negotia® _
_ tion. , Pending ‘the consummation of local agreements dis-.

posing of the issue, the following provisions shall govern

. the use of trainmen (assistant conducters, ticke® collectors, .

baggagemen, brakemen, and / flagm®h) employed ‘in all

' classes of ‘road service, including all mistellaneous and .
se unclassified services, and the use of brakemen or helpers
- employed in all classes of yard, transfer, and belt line .
service, including all miscellaneous yard services. —

3

A(2). No change shall be made in the scope or applica-

tion of rules in effect immediately prior to the effective
date of this —~Award, whether established by agreement, ~
“interpretation, or practice, which require a stipulated num-

~

en

&4 a Seo &

ber of trainmen (assistant conductors, ticket collectors,

baggagemen, brakemen, or flagmen) in any class of road ©

service, including all miscellaneous and unclassified serv-
ices, or which require a stipulated number of brakemen or
helpers in any class of yard, transfer, or belt line service,
including all miscellaneous yard services, except by agree-
ment, or pursuant to the provisions of this Award.

A(3). Either party in interest shall give Written ‘notice

of any proposed change in any such stipulated number of 7

trainmen (assistant conductors, *icket collectors, baggage-
‘men, brakemen, or/flagmen) used in any class of road

. Service, including all miscellaneous and unclassified -serv-

ices,’in the following categories :

(a), branch lines; including the use of main lines where
necessary to reach initial ér final terminals of the

| branch line train; and =~.
(b) ragd service where rete practice, or in-
~

' terpretation now requires the\employment of more
or less than 2 trainmen; ‘ 2

and of any proposed change in any such stipulated num-
ber of brakemen or helpers used in any class of yard,

> transfer, or belt line service, including all miscellaneous
_- yard service. The parties in interest, as that term is used

in this Award, shall include only the carrier and the or-
ganization representing the class or craft of employees
holding seniority rights to the position or -positions pro-

posed to be abolished or created in the seniority district or ~

districts in which such changes are proposed. The time

'- and placé. fér the beginning of conferences between the

representatives of thé parties in interest with respect to
‘such proposed change or changes shall be agreed upon
within 10 days after the receipt of said notice, and said
time shall be within 15 days after the receipt of said notice.

Part B—Review Procourrs =, -
OR

. B(1). If no agreement is reached between the

as to the application of ‘the guidelines enumerated in Part’.

C of this Award, the dispute limited to the application

¢

i.

Dea ReNIENiEPenT

operating rules and instructions applicable to the
crew in ‘question.

_ (g) Physical characteristics of the line to be traversed
and in the areas where; switching or industrial
work is to be performed (including grade“and gen-
eral climatic conditions). 2

(h) The number of highway, street, road, railroad, or
other. crossings or intersections to be protected.

(i) State, county, or municipal regulations applicable

s with respect to highway, street, road, railroad, or
? other crossings or intersections. oh a

(j) Availability and use of communication equipment

train to way-side radio, and waJkie-talkies).
_ (k) The presence or absence of a fireman in the engine
service crew. ,

C(3). Particular considerations—passenger road service.

(a) The amount of baggage and storage mail to be
handled on-and off the: train at intermediate sta-
‘tions by the train ‘crew. (ae

(b) The number of passenger cars handled in the train

«and passenger count. . x

(c) The method of handling passehger transportation

(tickets). ay

Pa

é

P ° eee ee ee
bes oN eeereanemenateg. oe Saees
an . ° .

(f) Duties, required in compliance with the carrier’s |

(such as, but not limited to, end-to-end train radio,.

ee ee a
78

(d) The number of passengers boarding and’ leaving
the train at intermediate stations. _

(e) Duties required other than the above on any par-
ticular assignment. 3 |

C(4). Particular considerations—freight service, includ-
ing miscellaneous arid unclassified services. ' |

(a) The amount and nature of work to be performed
f ' en‘route. — é
(b) The length of train, in context with the amount
and nature of work to be performed en route. ,
(c) Time limitations applicable to the particular as-
signiment. : 9 :

C(5). Particular considerations—yard, transfer, and belt
line service, including, all miscellaneous yard services.

(a) The amount and nattre of ‘the work to be per-

. formed. ee
- .(b)- Volume of work considered in context with appli-
cable service time limitations. :

Part D—Emp.oyze Protection

D(1).°Road trainmen and yard brakemen or helpers, other
than those on furlough on the date that this Award becomes
effective, shall be known and designated, for the purposes
of this Award, as ‘‘protected employees.’’ |
_ D(2). A “‘protected employee,”’ known and designated as
provided in paragraph D(1) of this Award, shall retain his
rights to and obligations to protect road and yard service
assignments (including all assignments in miscellaneous

- and unclassified road services and all assignments in trans-
° . fer, belt line, and miscellaneous yard services) for which he
is qualified, as provided by rules in effect on the day pre-:

ceding the day this Award becomes effective, to the extent

_ that such positions are available to him in his seniority dis-

_ trict, unless and until retired, discharged for cause, or other-

_ wise removed from the carrier’s active working lists of road
-trainmen and yard brakemen or helpers by natural attrition ;

provided, that no such “‘ protected employee’”’ shall have any

a

a

.
Rete pet, grr caneaten RE eI 8 me IN TRS
ee ns

79,

4

right to jobs or positions that the carrier may discontinue -

pursuant to the provisions of this Award if other employ-
ment in any such classes of service, for which such employee
is qualified, is available to him in his seniority district. If
and when the carrier is required to create new jobs or posi-
tions for road trainmen of yard brakemen or helpers, pur-
' suant to the provisions of this Award, such positions shall
first be filled, to the extent available, by ‘protected em-
_ployees’’ then filling positions which the carriers ‘would
otherwise have the right to abolish or eliminate - pursuant

to the provisions of this Award, before such jobs or posi-

tions may be claimed by other employees of the carrier in
accordance with their seniority rights. ,

IV. Duration ~

This Award shall continue in force for two years from
the date it takes effect, unless the parties agree otherwise.

Dated: November 25, 1963 ig
7 7 is /8/ Benzamin Aaron,
. | Neutral Member.

/s/ James’ J. Heaty, _s
Neutral Member.

_ /8/-Ratpx T. Sewarp,
Chairman of the Arbitration Board.

Concurrine: | | | Dissent1N¢ :
/8/ Guy W. Knicur, _ H. E. Gupezrz,
Carrier Member. Organization Member.
' /s8/ J. E. Wourz, R. H. McDonato,

Carrier M. ember. Organization Member.

2 el REPRE Egan oC hme ep RE An on ee IN
. . -

80

' APPENDIX G

Ruuines By Arsitration Boarp No. 282

Carriers’ QuESTION #2

Section II—Part B(3) Answered May 17, 1964

' Q. No. 2—It is the carriers’ understanding that new regu-
lar assignments may be operated without a fireman unless
or until included in the local chairmen’s subsequent veto

. pursuant to Part B(3) of Section II. Is the carriers’
understanding correct? : }

Answer—This understanding is correct.

B.L.F. & E. Question #6 Answered May 17, 1964

Q. No. 6—(a) ‘May the carrier abolish an assignment which
has been vetoed by a local chairman in a subsequent ninety
(90) day interim period betweett listings and therefore
lower the percentage of vetoed positions below ten (10)

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1097%3A14. Public record. Not legal advice.