Petition for Writ of Certiorari — United Transportation Union v. Chicago & North Western Railway Co.
Supreme Court brief1973
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IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1972
UNITED TRANSPORTATION UNION,
Petitioner,
v
CHICAGO AND NORTH WESTERN RAILWAY COMPANY, E
Respondent. f
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals z
For the Seventh Circuit &
JOHN H. HALEY, JR.
605 First National Bank Building
East St. Louis, Illinois 62201
JOHN J. NAUGHTON
120 West Madison Avenue i
Chicago, Illinois 60602 ;
LESTER P. SCHOENE :
818 18th Street NW
Washington, D. C. 20006
Attorneys for Petitioner
United Transportation Union
a
St Louis Law Printing Co., Inc., 411-15 N. Eighth St. 63101 814-231-4477
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INDEX
Page
Opinions in the Case ............eeeeeeeeeeeeeeeees 1
Jurisdiction .... 2. ee eee eee cece eee e eee eee ceeeees 2
Questions Presented ........-...++++eeeeeeeeeeeeees 3
Statutory Provisions Involved ...........-++++++++: 5
Statement of the Case ............eeeceeeeecceeeees 5
Reasons for Granting the Writ:
1. The questions which this Court deliberately re-
frained from answering in its decision in this
case last year have emerged in the ensuing liti-
gation as not only questions of first impression
but probably more important to the functioning
of the Railway Labor Act and the Norris-La-
Guardia Act than those for the resolution of
which this Court granted certiorari last year ... 15
2. The Court of Appeals misconceived, misconstrued
and failed to apply the decision of this Court
and to resolve the questions for the resolution
of which this Court remanded the case, although
the District Court had done so ................ 16
3. The opinion of the court below in this case is in
conflict with the opinion of the Court of Appeals
for the District of Columbia Circuit in Brother-
hood of Railroad Trainmen, et al. v. Akron &
Barberton Belt R. Co., 385 F.2d 581, cert. den.
390 U.S. 933 (1968), which is res judicata as to
the parties to this action ..................... 18
ii
4. The decision of the court below that re-media-
tion is a mandatory step in the procedures of
the RLA which the union must invoke is without
support in the decision of this Court in this case
and is in conflict with the text of §§6 and 5 of the
RLA under which mediation is permissive
5. The decision of the court below that an anti-
strike injunction should be continued in this case
is in conflict with the text of Section 8 of the
Norris-LaGuardia Act, 29 U.S.C. 108, as con.
strued by this Court in its opinion in Brother-
hood of Railroad Trainmen v. Toledo, Peoria &
Western R. Co., 321 U.S. 50 (1944) ............
6. The decision of the court below that an anti-
strike injunction should be continued in this case
is in conflict with the text of Section 7 of the
Norris-LaGuardia Act, 29 U.S.C. 107, and the
decision of the Court of Appeals for the Second
Circuit in Chicago, Rock Island & Pacific R. Co.
v. Switchmen’s Union of North America, 292 F.
2d 61, cert. den. 370 U.S. 936 (1962)
Sees | | oe ca wh wee ce eee eee ks
Appendices:
A—Opinion of the Court of Appeals for the Seventh
GND Bip SE nada donntccdnsahe nares
D—Memorandum opinion and decree of District
Court, December 22, 1971 ...............0000-
E—Findings of fact and conclusions of law of the
District Court, August 13, 1971 ...............
. PS RAR Bins RAD Ge
F_—Opinions in the Supreme Court of the United
States, June 1, 1971
Opinion of the Court .....-++-+++seererrrree 60a
Dissenting opinion ......--++++esseerrererts 73a
G—Opinion of the Court of Appeals for the Seventh
Circuit, March 6, 1970 ......----++++eeeeeeees 88a
H—Findings of fact and conclusions of law of the
District Court, December 11, 1969 .......------ 107a
[Gltatubes ...sccesccesccesseenseeecesereecees 114a
CITATIONS
Cases
- skron & Barberton Belt R. Co. v. Brotherhood of Rail-
road Trainmen, 250 F.Supp. 691 (D.D.C., 1966), 252
F.Supp. 207 (D.D.C., 1966), 954 F.Supp. 306 (D.D.C.,
WO nn cnscnsvnctnancsnpecenseecscnanndecneenes 7,10
Akron & Barberton Belt R. Co. v. Order of Railway
Conductors & Brakemen, 253 F.Supp. 538 (D.D.C.,
GD ccnccacussensessscencvasesacesneete cesses?
Atlantic Coast Line R. Co. v. Brotherhood of Railroad
Trainmen, 262 F.Supp. 177 (D.D.C., 1967), reversed
Brotherhood of Locomotive Firemen & Enginemen v.
Chicago, Burlington & Quincy R. Co., 225 F.Supp.
11 (D.D.C., 1964), aff’d. 331 F.2d 1020 (D.D.Cir.,
Brotherhood of Railroad Trainmen v. Akron & Bar-
berton Belt R. Co., 385 F.2d 581 (D.C.Cir., 1967),
Brotherhood of Railroad Trainmen v. Atlantic Coast
Line R. Co., 383 F.2d 225 (D.C.Cir., 1967), cert. den.
Sih EE BOUT COD: onc nnsccncasenesenessnsonss 9, 10
7,10
383 F.2d 225 (D.C.Cir., 1967) ...--+-eeeeeeerereee 9, 10
1964), cert. den., 377 U.S. 918 (1964) ....---++++++ 6
cert. den. 390 U.S. 923 (1968) .......--- 6, 7, 10, 18, 19
APPLIES BE GOLL TOP LONE B NPE TELE ID Le
aed RANE YE
ee aaa
iv
Brotherhood of Railroad Trainmen v. Jacksonville
Terminal Company, 394 U.S. 369 (1969) ......... 20, 21
Brotherhood of Railroad Trainmen v. Toledo, Peoria
& Western R. Co., 321 U.S. 50 (1944) ............, 23
Chicago & North Western R. Co., Plaintiff-Appellant
v. United Transportation Union, Defendant-Appel-
lee, No. 72-1118, unreported in F.2d 80 LRRM 3355
C7 Ci, TTS), A By EM: ooo cc cccscccces 1, passim
Chicago & North Western R. Co., Plaintiff v. United
Transportation Union, Defendant, 336 F.Supp. 1149
a 8 SS errr rrerer ere 2, 3, 13, 24
Chicago & North Western R. Co., Plaintiff v. United
Transportation Union, Defendant, 330 F.Supp. 646
Ci, Be Bs Ts BOGE) 6 ccnncccvcesssares 2, 3, 12, 29
Chicago & North Western R. Co., Petitioner v. United
Transportation Union, Respondent, 402 U.S. 570
DE UeudeeansNeosanusehedasceessedeneenn 2, passim
Chicago & North Western R. Co., Plaintiff-Appellant
v. United Transportation Union, Defendant-Appel-
lee, 422 F.2d 979 (7th Cir., 1970) ............000. 2,11
Chicago & North Western R. Co., Plaintiff v. United
Transportation Union, Defendant (D.C. No. IIl., E.D.
1969), unreported, App. H, p. 107a ............... 2
Chicago, Rock Island & Pacific R. Co. v. Switchmen’s
Union of North America, 292 F.2d 61, cert. den., 370
EE oe Gutadacackwderdadoeensaededave 23, 24
Detroit & Toledo Shore Line R. Co. v. United Trans.
portation Union, 396 U.S. 142 (1969) ............ 20, 21
International Assn. of Mach. v. National Mediation
Board, 425 F.2d 527 (D.C. Cir., 1970)
|
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2
v
Statutes
Judicial Code
98 U.S.C. §1254(1) ...... eee ecereeecerecereeeees 2
98 U.S.C. §§1381, 1837 0.0... cece eeeere eee e recess 9
Norris-LaGuardia Act
64 (29 U.S.C. | Perrrrrerrr errr oh 4, 5, 10
§7 (29 U.S.C. RY noc csrsscvevcesness 4, 5, 10, 13, 23, 24
§8 (29 U.S.C. DD nan sda vsncccdeusncves 4, 5, 8, 12, 22, 23
Railway Labor Act
§2, First (45 U.S.C. 152, First) .....-.-+-eereee Passim
§5, First (49 U.S.C. 155, First) ........-++- 3, 5, 6, 19, 20
46 (45 U.S.C. BOB). nccccscacncsccssscenesesess Passim
g10 (45 U.S.C. PePPrrererrret te. 22
#
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GRE SOY Ay ROT onan
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IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1972
tice
UNITED TRANSPORTATION UNION,
Petitioner,
Vv
CHICAGO AND NORTH WESTERN RAILWAY COMPANY,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
For the Seventh Circuit
Petitioner prays that a writ of certiorari issue to review
the Judgment of the United States Court of Appeals for
the Seventh Circuit entered in the above-entitled case on
August 1, 1972, in Chicago and North Western Railway
Company, Plaintiff-Appellant v. United Transportation
Union, Defendant-Appellee, No. 72-1118.
OPINIONS IN THE CASE
The opinion of the court below, rendered August 1,
1972 in Chicago and North Western Railway Co., Plain-
tif-Appellant v. United Transportation Union, Defend-
PR eM Por POLAT StH AIRE LE 7 PLES LLIN IE IS WI LAE ORM NN OLE RS SBCA EK A TD ILG tt RIOR
ene ae
oe
SS tr ttt vantg coer coe par Red,
te thp IDE
ant-Appellee, of which review is sought by this Petition
has not been officially reported; it is unofficially reported
80 LRRM 3355 and appears as Appendix, (hereinafter,
“‘App.’’) A, p. la. The opinions which have been rep.
dered by the courts in this case are voluminous and are
presented in the separate Appendix to this Petition jy
inverse chronological order.'
The judgment of the Court of Appeals sought to be
reviewed was entered August 1, 1972 and appears as
App. B, p. 7a. A petition for rehearing with suggestions
for rehearing en banc was filed by petitioner in the court
below on August 14, 1972 pursuant to and within the
time allowed by Rule 40 of the Federal Rules of Appellate
Procedure. That Petition was denied September 21, 1972;
the order denying such petition for rehearing appears as
App. C, p. 8a. The jurisdiction of this Court is invoked
under 28 USC 1254(1).
1 The findings of fact, conclusions of law and decree of the
District Court entered December 22. 1971 in Chicago & North
Western Railway Co., Plaintiff v. United Transportation Union,
Defendant, 336 F.Supp. 1149 from which CNW appealed to the
court below appear as App. D, p. 9a. The findings of fact, con-
clusions of law and decree of the District Court entered A
13, 1971 in Chicago and North Western Railway Co., Plointif +
United Transportation Union, Defendant, 330 F.Supp. 646 appear
feet wet p. 48a. The majority and dissenting opinions delivered
1971 in this Court in this case, Chicago and North Westers
Reitwey Co., Petitioner v. United Transportation Union, Ney
ent, 402 US. 570 appear as App. F, p. 60a. The
Court of A for the Seventh Circuit, Ny arch 6 1500
in Chi North Western Railwa , Plaintiff-Appeliant +.
United Transportation Union, Tey avi , 422 F.2d 979
appears as App. G, p. 88a. fact, conchisions of
sage ATA a ig by the District Court,
Chicago and North Western R. Co., Plaintiff v. United Transpor-
— Defendant, are unreported and appear as App. H,
p. 107a.
——
QUESTIONS PRESENTED
In this case (Chicago and North Western R. Co., v.
United Transportation Union, 402 U.S. 570 (App. F, p.
60a), this Court held Section 2 First of the Railway Labor
Act, hereinafter “‘RLA”’, requiring every reasonable effort
to make agreements, to be judicially enforceable in ju-
dicial proceedings following exhaustion of the procedures
of the RLA and made no comment upon an argument by
the minority of this Court that the decision of the court
ould require that, in the event a violation of §2 First
chould appear, the parties would be required to re-do one
or more steps in the procedures of the RLA. Upon remand,
the District Court first determined that neither party had
complied with §2 First and ordered further negotiations
(App. E, pp. 48a, 55a-60a); after the further negotiations,
the District Court found that both parties had complied
with §2 First (App. D, pp. 9a, 43a, 44a, 45a, 47a). The
Court of Appeals reversed, holding that correction of the
initially-found violation required repetition of all the pro-
cedures of the Act (App. A, pp. 1a, 3a, 5a). Accordingly,
the questions presented are:
1. Whether the Court of Appeals misconceived, miscon-
strued and failed to apply the decision of this Court in
this case by holding that it would be illegal for the Union
to engage in self-help without re-submitting the dispute
for re-mediation by the National Mediation Board, herein-
after ‘‘NMB”’ under the provisions of §§5 and 6 of the
RLA. Included within this question are the subsidiary
questions:
(a) Whether the Court of Appeals erred in treat-
ing an argument in the Dissenting Opinion in this case
in this Court as though it were the decision of the
Court;
SS Ene Tv
——
anfies
(b) Whether the Court of Appeals erred in decid.
ing that re-mediation is a mandatory step for the
Union to invoke, notwithstanding mediation is not ,
required step in the initial procedure if neither party
invokes it and the Mediation Board does not proffer
it.
2. Whether the Court of Appeals erred in holding that
an anti-strike injunction should be continued in this case,
notwithstanding §4, §7 and §8 of the Norris-LaGuardig
Act, hereinafter ‘‘N-LaG. Act’’, 29 USC § 104, 4107 and
§ 108. Included in this question are the subsidiary ques
tions:
(a) Whether, after an initial finding by the District
Court that neither party had complied with §2 First
of the RLA and a later finding that both parties had
complied with it, the Court of Appeals could hold,
consistently with §4, §7 and §8 of the N-LaG. Ac
that the Railroad is entitled to an anti-strike injune
tion pending a subsequent judicial determination of
compliance with § 2 First of the RLA in re-mediation;
(b) Whether the Court of Appeals could require
the Union, before exercising self-help, to invoke re
mediation, notwithstanding the RLA imposes no such
obligation on the Union but §8 of the N-LaG. Aet
does impose such an obligation on the Railroad as a
condition precedent to being granted an anti-strike n-
junction in any event.
3. In the event the Petition is granted, the Petitioner
will also urge the further question: whether the decision
of the District Court was proper under the evidence pre
sented and was in accord with this Court’s decision in
this case last year.
STATUTORY PROVISIONS INVOLVED
The statutory provisions involved are Section 2, First,
section 5, First and Section 6 of the RLA which are re
spectively, 45 USC 152 First, 155 First and 156; Sections
4,7 and 8 of the N-LaG. Act which are respectively 29
USC 104, 107 and 108; the pertinent portions of those stat-
ates appear in App. I, pp. 114a to 117a.
STATEMENT OF THE CASE
This petition arises in the continuation of litigation fol-
lowing the decision of this Court in this case on June 1,
1971, Chicago and North Western R. Co. v. United Trans-
portation Union, 402 US 570 (App. F, p. 60a), in which
this Court reversed a prior decision of the court below and
held that ¢ 2, First of the RLA, requiring parties to make
every reasonable effort to make agreements, imposes &
legal obligation and that such obligation is judicially en-
forceable by injunction. This Court remanded the case
for the lower courts to determine whether United Trans-
portation Union and its predecessor unions had violated
§2, First in exhausting the procedures of the RLA in cir-
cumstances justifying an anti-strike injunction.
The labor dispute involved im this case has been and
is known as the “‘crew consist’’ dispute. It arose from
notices, hereinafter ‘‘Section 6 Notices’, which were
served pursuant to Section 6 of the RLA (45 USC 156),
“» June and July, 1965 upon some 80 railroads, including
Chieago and North Western Railway Company and others
which have been merged into it, hereinafter ‘‘CNW’”’ or
“Railroad” by representatives of the unions then repre-
senting employees of the railroads in the crafts of con-
ductor, trainmen and yardmen; the Order of Railway Con-
ductors & Brakemen, the Brotherhood of Railroad Train-
LE NS EELS HEEL DAN SGD NE ELE E LI SNE NT I a
men and the Switchmen’s Union of North America which,
on January 1, 1969, merged into United Transportation
Union, hereinafter collectively referred to as the “Union”
or ‘“‘UTU’’.
The §6 notices served by the unions’ representatives
sought an agreement, to become effective upon the expira-
tion on January 25, 1966 of the Award of Arbitration
Board No. 282, which had been made pursuant to PL
88-108, approved August 28, 1967, 77 Stat. 132.2 for a
minimum of a conductor and two trainmen to be em
in crews in all classes of main and branch line road sery-
ice and a minimum of a foreman and two helpers to be
employed in crews in all classes of yard service.’ The
2 Public Law 88-108 appears as an a ix to Brotherhood of
Railroad Trainmen, ct al. v. Akron & Barberton Belt R. Co., 385
F.2d 581 at 605-607. That Act was the culmination of the initial
phase of the crew consist dispute which is involved in this case. The
crew consist dispute then involved about 200 railroads and the three
unions then representing employees of the railroads in the crafts
of conductor, trainmen and yardmen. It prohibited the exercise of
self-help by the 200 railroads and the unions and required arbitra-
tion of the dispute by a board which became known as Arbitration
Board No. 282 and for the Award of the Board to be effective
for a period not exceeding 2 years. The Award became effective
January 25, 1964 and expired January 24, 1966, Brotherhood of
Locomotive Firemen and Enginemen, et al. v. Chicago, Burlington
& Quincy R. Co., 225 F.Supp. 11 (D.D.C. 1964), aff'd 331 F.2d
1020 (D.C. Cir. 1964), cert. den. 377 U.S. 918 (1964); Beother-
hood of Railroad Trainmen, ct al. 7. Akron & Barberton Belt R.
Co., et al., 385 F.2d 581 at 588-591, which is further discussed,
infra.
* The railroads, including CNW, refused to enter into confer-
ences and negotiations with respect to the §6 notices served by
the unions in June and July 1965 and the unions invoked the serv-
ices of the NMB under the provisions of §5 of the RLA prior
to the service by the railroads, including CNW, of their §6 no-
tices in December 1965.
Prior to the expiration of the Award of Arbitration Board No.
282 the unions called upon the railroads, upon which §6 notices
had been served in June and July 1965, including CNW, to ar-
a ROPE Ss DEINE EE TET i OIE IOI
onan f
jabor dispute also embraced the issues arising from §6
notices served on the representatives of the unions by
CNW on December 24, 1965 and by the other railroads
upon the Union at about the same time seeking an agree
ment for management to have the unrestricted right to
determine the number and craft of persons to be employed
in such crews. The §6 notices served by CNW and other
railroads upon the union also proposed initial concurrent
handling of the notices served by the union in June and
July, 1965 and the notices served in December, 1965 by
the railroads and further that, if no agreement should be
reached in initial conferences that the CNW and other
railroads which concurrently served the same §6 notice
on the unions’ representatives would refer the further
handling of the dispute to a committee to represent all
the railroads and proposed that the unions establish a
- ek ‘
Ci a Meine ale ag
————
range to put into effect, upon the expiration of the Award the
crew consist rules which were in existence prior to the effective
date of the Award. Thereupon, the railroads, including CNW,
instituted an action against the unions in the United States District
Court for the District of Columbia for a declaratory judgment that
the changes in crew consist made pursuant to the Award would
continue after the expiration of the Award until changed in pur-
suance of §6 of the RLA and that the §6 notices served by the
unions in June and July 1965 during the period the Award was
in effect were legally ineffective and for an anti-strike injunction
until the procedures of the RLA should be exhausted. In that
action, the District Court rendered successive opinions in Akron &
Barberton Belt R. Co., et al v. Brotherhood of Railroad Trainmen,
ct al., 250 F.Supp. 691 (D.D.C., 1966), 252 F.Supp. 207 (D.DC.,
1966), 254 F.Supp. 306 (D.DC., 1966) and in a companion case
4kron & Barberton Belt R. Co., ct al. v. Order of Railway Con-
ductors & Brakemen, 253 F.Supp. 538 (D.D.C., 1966), which were
considered together by the Court of Appeals for the District of
Columbia Circuit on appeals and cross appeals in Brotherhood of
Railroad Trainmen, et al. v. Akron & Barberton Belt R. Co., et al.,
385 F.2d 581 (D.C.Cir. 1967), cert. den. 390 U.S. 923 (1968). The
Court of Appeals affirmed the District Court’s decision that, ex-
cept in the case of certain agreements, the changes in crew consist
rules made pursuant to the Award, continued in effect notwith-
standing the expiration of the Award. The Court of Appeals re-
versed the decision of the District Court that the § 6 notices served
— oa
f
:
£
a
similar committee to handle further the unions’ notices
with the railroads’ committee on a national basis.
While the crew consist dispute was pending, subject to
the jurisdiction of the NMB awaiting active mediation,
CNW and the union sporadically engaged in negotiations,
conferences, making and discussing proposals. In June
and July 1969 the NMB actively undertook to mediate the
dispute and, being unable to secure an agreement either
to settle the dispute or to submit it to arbitration, termi.
nated its jurisdiction of the dispute on October 19, 1969,
This action was commenced by CNW on November 19,
1969 in the United States District Court for the Northern
==
by the unions in June and July 1965 were not legally effective
when served and held that such notices were legally effective when
served to require the railroads, including CNW, to enter into con-
ferences and negotiations ; that the railroads, by refusing to do $0,
had forsaken their right to insist on initial conferences for which
§6 of the RLA provides and the unions properly had advanced
the disputes to mediation, the next step of the procedures of the
RLA. Also, the Court of Appeals held the District Court erred
in granting a preliminary anti-strike injunction because the rail-
roads, mcluding CNW, by refusing to enter into negotiations on
the unions’ §6 notices, had breached their statutory duty under
the RLA to confer and bargain on the unions’ notices and, by such
refusal, had forsaken their right to insist on conferences; had not
complied with §8 of the N-LaG. Act and that the District Court
had erred in granting a preliminary anti-strike injunction. 385 F.2d
581 at 597-599, 613-614.
* The representatives of the union on each railroad entered
into conferences with the railroads, including CNW, with respect
to the §6 notices served by the railroads upon the unions’ repre-
sentative in December 1965 but refused to agree to concurrent
handling of the notices served by the respective parties or to es-
tablish a committee to handle all the notices served by the unions’
representatives concurrently with a committee representing all the
railroads. CNW then referred the handling of the dispute to a
committee to represent it. The other railroads did likewise. That
committee thereafter invoked the services of the NMB on behalf of
CNW and the other railroads upon which the union had served
notices and which had served notices on the union.
While the Akron & Barberton Belt case (f.n. 3, pp. 6-8 supra)
was pending on appeal, the NMB terminated its services on Octo-
a
District of Illinois as an action arising under the RLA, 44
Stat. 577, as amended 45 USC §§ 151-160, an Act of Con-
gress regulating interstate commerce in which the matter
in controversy exceeds the sum or value of $10,000.00 ex-
dusive of interest and costs; the jurisdiction of the court
was grounded upon 28 USC §§ 1331 and 1337.
In essence the complaint alleged the facts giving rise
to the labor dispute involved as heretofore stated; that
CNW had complied with § 2 First of the RLA through the
mediation step of the procedures of the Act but that the
Union had not by having refused to handle the dispute
with CNW concurrently on a national basis with other rail-
roads while maintaining an adamant fixed determination
that it would not make an agreement more favorable to
CNW than the agreements theretofore made by the Union
with other railroads, regardless of what relevant con-
siderations CNW might advance, by refusing to bargain
on CNW’s proposals to reduce the size of main line road
crews; CNW sought a declaratory judgment and an anti-
ber 4, 1966 with respect to the crew consist dispute arising from
§6 notices served in June and July 1965 by the union upon the
Atlantic Coast Line R. Co., the Boston & Maine R. Co. and the
Des Moines Union R. Co., and by those railroads upon the union
in December 1965. On November 1, 1966, those railroads insti-
tuted Atlantic Coast Line R. Co., et al. v. Brotherhood of Railroad
Trainmen in the United States District Court for the District of
Columbia. The railroads sought a declaratory judgment that the
unions had violated §2 First of the RLA in bargaining with each
of the railroads and by refusing to agree to concurrent handling of
the crew consist disputes. The District Court (262 F.Supp. 177)
found the union had bargained with each of the three railroads
as required by § 2 First of the RLA except for having refused to
agree to establish a committee concurrently to handle the disputes
and issued an anti-strike injunction. The Court of Appeals re-
versed, holding the unions had not violated § 2 First of the RLA
by refusing to agree to concurrent handling of the disputes on a
national basis; the issue of whether the bargaining conduct of the
inion was in compliance with § 2 First was not appealed, Brother-
hood of Railroad Trainmen v. Atlantic Coast Line R. Co., 383 F.
24 225 (D.C.Cir. 1967). This Court denied certiorari, 389 US.
1047 (1968).
— ay
strike injunction on the ground that the procedures of the
RLA had not been exhausted by the union in compliance
with § 2 First of the RLA.
The union, in its answer, which was filed December 2,
1969, asserted CNW’s complaint failed to state a claim
upon which relief could be granted under either ¢ 2 First
of the RLA or under the N-LaG. Act because it had been
judicially determined in Brotherhood of Railroad Train.
men, et al. v. Akron & Barberton Belt R. Co., et al. (fn.
3, pp. 6-8 supra) that CNW had violated the RLA by re-
fusing to enter into conferences with the union on the
union’s 46 notice and also that the union’s refusal to
handle the disputes on a national basis had been judicially
determined not to be in violation of §2 First of the Act
in Atlantic Coast Line R. Co., et al. v. Brotherhood of
Railroad Trainmen (f.n. 4, pp. 8-9 supra), and denied the
union had violated §2 First of the Act in its bargaining
conduct with CNW through the mediation step of the
procedures of the Act and sought dismissal of CNW’s
complaint.
After hearing evidence of the bargaining conduct of the
parties prior to, during and subsequent to mediation, the
District Court, on December 11, 1969, entered findings of
fact, conclusions of law and a decree dismissing the CNW’s
complaint on the ground the question whether there had
been compliance with § 2 First of the RLA was not justi-
ciable but was a matter for administrative determination
by the NMB which had determined the question; that the
procedures of the RLA had been exhausted for more than
thirty days with respect to the dispute between CNW and
the union and that the court was without jurisdiction under
the provisions of §§ 4 and 7 of the N-LaG. Act to continue
an anti-strike injunction (App. H, pp. 112a, 114a).
= =
CNW appealed to the court below from the decision of
the District Court.
——
On March 6, 1970, the court below 422 F.2d 979 (App.
G, pp. 88a, 106a), affirmed the District Court’s decision
that compliance with §2 First of the RLA was to be en-
foreed by the NMB and not by the courts, which decision
the court below considered to be in conflict with a de-
cision by the Court of Appeals for the Fourth Circuit in
Piedmont Aviation, Inc. v. Airline Pilots Ass’n. Int’l., 416
F.2d 633 (App. G, pp. 88a, 106a). ;
This Court granted certiorari October 12, 1970 (400 US
818) to consider the important question whether 42 First
of the RLA is to be enforced by the NMB or judicially on :
which question the lower courts had expressed divergent
views, 402 US 570 at 572-3, 587 (App. F, pp. 60a, 62a, 76a).
This Court held §2 First of the RLA imposes upon the
parties a legal obligation which is judicially enforceable
by injunction, 402 US at 578-581 (App. F, pp. 60a, 67a-70a). :
The Court further said, 402 U.S. at 574, 584 (App. F, '
pp. 60a, 63a, 73a):
«|. The parties have not requested us to decide
whether the allegations of the complaint or the evi-
dence presented at the hearing was sufficient to show
a violation of §2 First, and the lower courts, by their ;
resolution of the threshold questions, did not reach 3
the issue. Accordingly, we intimate no view on this
matter.
‘« . As we noted at the outset, we have not been
requested to rule on whether the record shows a vio-
lation of § 2 First in circumstances justifying a strike
injunction, and we do not do so. Such a question
should be examined by this Court, if at all, only after
the facts have been marshaled and the issues clarified ;
through the decisions of lower courts.
—)
Oe SRI un eyo EEN Oe ao8
“In view of the uncertainty heretofore existing on
what constituted a violation of 42 First and what
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—
showing was necessary to make out a case for a strike
injunction, we believe the appropriate course is to
remand the case to the Court of Appeals with instruc.
tions to return the case to the District Court for the
taking of such further evidence as the parties may
deem necessary and that court may find helpful in
passing on the issues which the case presents in light
of our opinion today... .”
In pursuance of the decision and mandate of this Court,
the District Court vacated its prior decree and conducted
further proceedings in the case commencing on July 29,
1971.
At that time each party stated it had no further eyi-
dence to offer and the District Court heard arguments by
the parties with respect to whether, under the decision of
this Court, the railroad had shown compliance by it with
§2 First of the RLA and §8 of the N-LaG. Act and a vio-
lation by the Union of § 2 First of the RLA.
On August 13, 1971 the District Court made findings of
fact and conclusions of law and entered a decree, 330 F.
Supp. 646 (App. E, p. 48a). The District Court found
that prior to that date neither party had bargained in good
faith through the mediation step of the procedures of the
RLA nor since the NMB had terminated its jurisdiction of
the dispute. The District Court also held it had no author.
ity to remand the controversy to the NMB because the
courts, rather than the NMB, have the authority to deter-
mine whether either or both parties have bargained in
accordance with §2 First of the RLA, issued an anti-
strike injunction to preserve the status quo and ordered
further negotiations by the parties (App. E, pp. 48a, 55a,
57a, 59a).
On November 18 and 19, 1971 the District Court con-
ducted further proceedings in the case. At the outset of
the hearing the court incorporated into the record of that
=—_ —
proceeding all of the evidence theretofore taken in the
ease and took evidence of the further bargaining conduct
of the parties pursuant to its August 13, 1971 order.
On December 22, 1971, the court entered findings of fact,
conclusions of law and a decree, 336 F.Supp. 1149 (App.
D, p. 9a). The court found the facts with respect to the
entire bargaining conduct of the parties and that both
parties had bargained in good faith in compliance with § 2
First of the RLA; held it was without authority to remand
the controversy to the NMB; that the procedures and
status quo requirements of the RLA had been exhausted
and that the court was without jurisdiction under §§ 4 and
7 of the N-LaG. Act to continue an anti-strike injunction,
in effect, except pending appeal. 336 F.Supp. at 1166-1169
(App. D, pp. 9a, 48a-48a).
CNW appealed to the court below from the decision of
the District Court on January 6, 1972 and that appeal was
docketed in the court below as Chicago and North West-
ern R. Co., Plaintiff-Appellant v. United Transportation
Union, Defendant-Appellee, No. 72-1118.
On January 10, 1972, the District Court granted an anti-
strike injunction pending the disposition of CNW’s appeal
and on January 13, 1972 the Union appealed from the Dis-
trict Court’s order granting such injunction which was
docketed in the court below as Chicago and North West-
ern R. Co., Plaintiff-Appellee v. Umited Transportation
Union, Defendant-Appellant, No. 72-1119. The court below
denied a motion by UTU in No. 72-1115 to dissolve the in-
junction pending appeal but consolidated the two appeals
for briefing and argument and ordered disposition thereof
expedited.
The court below rendered its opinion and judgment with
respect to both appeals on August 1, 1972 (App. A, p. 1a).
It affirmed the order of the District Court granting an
anti-strike injunction pending CNW’s appeal in Chicago
a
and North Western R. Co., Plaintiff-Appellee vy. United
Transportation Union, Defendant-Appellant, No, 72-1115
with respect to which decision a separate petition for writ
of certiorari is being filed by UTU in this Court.
In Chicago and North Western R. Co., Plaintiff-Appel.
lant v. United Transportation Union, Defendant-A ppel.
lee, No. 72-1118, the court below reversed the decision of
the District Court and remanded the cause for submission
of the dispute to re-mediation by the NMB. That decision
and judgment of the court below is the subject of this pe-
tition.
— i
The court below conceived the issues presented for de
cision by it to be ‘‘. .. what steps of the statutory pro.
cedure must be re-visted where [initially] there has not
been a good faith compliance with Section 2 First.” It
Stated there was another issue ‘‘. . . which our disposi-
tion obviates, viz: What guidelines must the District Court
follow in determining whether there has been a good faith
compliance with Section 2 First??? (App. A, pp. 1a, 3a).
The court below considered the August 13, 1971 find-
ings of fact and conclusions of law by the District Court
that both parties theretofore had gone through the pro-
cedures of the Act with a desire not to reach an agree-
ment as having so tainted every step of the procedures of
the Act that it would be necessary for them to re-visit
each step in a good faith effort to settle their dispute.
The court below held the District Court had required the
parties to re-visit only the joint conference step in the pro-
cedures of the RLA and ‘‘approved’’ the December 22,
1971 findings by the District Court that the parties had
complied with Section 2, First as being with respect only
to such joint conference step and conditioned its ‘‘ap-
proval’’ of such findings upon the parties hereafter dem-
onstrating their good faith in mediation, the next step in
=~
the procedures of the RLA which the court below held the
parties must exhaust and that, since this the parties had
failed to do and had not been required by the District
Court to do 80, reversed the judgment of the District
Court and remanded the cause to the District Court to
require re-mediation of the dispute by the NMB in which
the parties should demonstrate their good faith and to
continue appropriate restraint against self-help by either
party until such should be done (App. A, pp. 1a, 2a,
ja, 6a).
REASONS FOR GRANTING THE WRIT
1. The Questions Which This Court Deliberately Re-
frained From Answering in Its Decision in This Case Last
Year Have Emerged in the Ensuing Litigation as Not
Only Questions of First Impression But Probably More
Important to the Functioning of the Railway Labor Act
and the Norris-LaGuardia Act Than Those for the Reso-
lution of Which This Court Granted Certiorari Last Year.
In its opinion and decision in this case last year this
Court held 42 First of the RLA to impose a legal obli-
gation which is to be overseen and enforced by appropri-
ate judicial means and defined that obligation as being the
absence of ‘‘a desire not to reach an agreement’’ in ex-
hausting the procedures of the RLA, 402 U.S. 570 at 578-
579 (App. F, pp. 60a, 67a, 68a).
This Court also resolved the other question presented—
“whether the Norris LaGuardia Act strips the Federal
Courts of jurisdiction to enforce the obligation [imposed
by Section 2 First of the RLA] by a strike injunction’’.
The answer was that an injunction may issue when it is
the only practical, effective means of enforcing §2 First
and hence that the N-LaG. Act did not in this case forbid
the District Court considering whether there had been a
be
4
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violation of 42 First by the Union, 402 U.S. 570 at 574,
581-584 (App. F, pp. 60a, 63a, 70a-73a).
The correct application of the decision of this Cou
and resolution of the questions left unanswered by this
Court will directly affect the role of the judiciary, the na
ture and the efficacy of mediation by the NMB and the
rights of parties under the provisions of the RLA and the
N-LaG. Act in the resolution, through collective bargain.
ing, of major disputes, i.e., those arising with respect to
changes in rates of pay, rules and working conditions and
the exercise of self-help as part of the collective bargain.
ing process. It thus will affect all of the railroads and
airlines and other employers subject to those Acts and
the thousands of their employees and millions of the
public.
2. The Court of Appeals Misconceived, Misconstrued and
Failed to Apply the Decision of This Court and to Resolve
the Questions for the Resolution of Which This Court Re.
manded the Case, Although the District Court Had Done
So.
Although the Court of Appeals ignored the fact that this
Court had decided ‘‘what guidelines the District Court
should follow in determining compliance with § 2, First”,
it nevertheless failed to decide that question. Instead it
conceived its function to be to decide ‘‘what steps of the
statutory procedure must be re-visited when [initially]
there has not been a good faith compliance with Section 2
First”’ and decided that question by holding that where
a violation of §2 First by a party had been found, such
party must be required to re-visit and re-do each step in
the procedures of the RLA (App. A, pp. la, 3a, 5a). Im-
plicit in the decision below is the further requirement that
an anti-strike injunction should be granted and remain in
effect until there should be a judicial determination, after
= 17 —
;emediation, of compliance with § 2 First during re-media-
tion.
The Court of Appeals apparently fell into this error by
treating an argument in the dissenting opinion in this
vase in this Court ing the majority opinion, holdi
¢2, First of the RLA to establish a judicially enforceable
jegal obligation as though it were the decision of this
Court.
This Court, in its opinion in this case last year, made no
reference to whether parties should be required to re-visit
and re-do any step in the procedures of the RLA which
had been concluded in the event a violation of ¢ 2 First of
the Act by a party should be found in a judicial review of
the conduct of the parties in exhausting such procedures.
Rather, it was in the dissenting opinion, in an effort to
denigrate the result of the court’s holding §2 First ju-
dicially enforceable that it was said, 402 U.S. at 596 (App.
F, pp. 60a, 84a, 85a):
« _ . In essence, the court holds that a District
Court has the duty under §2 First to assess the bar-
gaining tacties of each of the parties after the entire
statutory scheme has run its course. If, then, the Court
determines that a party had not exerted sufficient ef-
fort to reach settlement, it should enjoin self-help
measures, and, if such actions is to make any sense
within the statutory scheme, remand the parties to
some unspecified point in the bargaining process. Such
a notion is entirely contrary to the carefully con-
structed premise of the Railway Labor Act.’’
And the dissent continued (402 U.S. at 597) (App. F, pp.
60a, 86a):
“|. The Act does not evidence an intention to
return to any step once completed. . . . Moreover, the
court provides absolutely no guidelines as to where in
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the bargaining scheme the parties are to be remanded
Does the Court send them back to the Mediation Board
which has already terminated jurisdiction finding the
parties to have reached impasse? Should the court re
mand to some other phase of the proceedings? If 50,
where? ...”’
The decision of this Court did not require, nor even sug.
gest, the re-doing of any step in the procedures of the
RLA. The dissenting opinion argued there was no ay.
thority for requiring the parties to redo any step of those
procedures. Thus, the decision of the court below finds no
support in either the majority or the minority opinion
of this Court in this case and plainly misconstrued and
misapplied the decision of this Court in holding that the
parties must re-do each step of the procedures of the RLA.
3. The Opinion of the Court Below in This Case Is in
Conflict With the Opinion of the Court of Appeals for the
District of Columbia Circuit in Brotherhood of Railroad
Trainmen, et al. v. Akron € Barberton Belt R. Co., 3%
F.2d 581 Cert. Den. 390 U.S. 923 (1968) Which is Res
Judicata as to the Parties to This Action.
The court below held that because the District Court
initially found in August 1971 that neither of the parties
had acted in good faith and, thus, had tainted each of the
steps of the procedures of the RLA, that che parties must
re-visit and re-do each step of the procedures of the RLA
theretofore done, commencing with initial conferences for
which §6 of the RLA provides and then re-mediation; the
court below also held the further negotiations required by
the District Court after which the District Court found in
December 1971 the parties had complied with §2 First,
satisfied only the initial conference step of the RLA (App.
A, pp. la, 3a, 5a).
—19—
As appears from the opinion of the Court of Appeals in
the Akron & Barberton Belt case, CNW, like other rail-
wads ‘flatly refused”’ to engage in any bargaining with
the union upon the §6 notices which were served by the
gion in June and July 1965 so there never were any
initial joint conferences. Clearly, then, the union could
not have violated § 2, First of the RLA in conferences pur-
suant to §6 of the RLA when the railroad refused to en-
gage in such conferences.
The Court of Appeals for the District of Columbia Cir-
cait held that CNW and the other railroads, by their re-
fusal to negotiate with the union, had breached their stat-
story duty to confer and bargain and by such refusal
« _. have foresaken their right to insist on [initial] con-
ferences”, 385 F.2d at 597-598.
Yet the court below holds the union was required to
reengage in initial conferences and treats the conferences
which the District Court required as being the initial con-
ferences which the Akron & Barberton Belt case held the
Railroad unlawfully had refused and therefore had fore-
saken their right to insist upon.
C8 TTR RUN GT LDS TR Ren ome aR ge
4. The Decision of the Court Below That Re-Mediation
Is a Mandatory Step in the Procedures of the RLA Which
the Union Must Invoke Is Without Support in the Decision
of This Court in This Case and Is in Conflict With the Text
of §§6 and 5 of the RLA Under Which Mediation Is Per-
nissive.
The judicial proceeding established by the decision of
this Court in this case for judicial enforcement of 4 2 First
of the RLA presupposes the exhaustion of the procedures
of the RLA and the expiration of the status quo require-
ments of the Act incident thereto, and thus that the par-
ties ostensibly have attained a position to exercise self-
help. Prior to such time the status quo requirements of
a
the Act would make unnecessary any action to enforce
compliance with § 2 First by injunction as a condition to
the exercise of self-help; enforcement of the Status
requirements of the Act would be sufficient under the ma.
jority and minority opinions in this case and in Brother.
hood of Railroad Trainmen v. Jacksonville Terminal, 394
U.S. 369 (1969), and Detroit € Toledo Shore Line R. Co,
v. United Transportation Union, 396 U.S. 142 (1969).
The text of §6 of the RLA (App. I, p. 116a) prohibits
the exercise of self-help ‘‘. . . unless a period of ten days
has elapsed after termination of conferences [for which
it provides] without request for or proffer of the services
of the Mediation Board.”’
In International Ass’n. of Machinists v. National Medi.
ation Board, 425 F.2d 527 (D.C.Cir., 1970), the union
sought to compel the NMB to proffer arbitration which
the union could refuse and acquire the right to strike
after the expiration of the status quo requirements of the
RLA subsequent to termination of mediation. In analyz-
ing the status quo provisions of the RLA with respect to
when the right to self-help arises the Court of Appeals
for the District of Columbia Circuit said, 425 F.2d at 537:
“‘Thus Section six, 45 USC § 156, authorizes a change in
the status quo if mediation services have not been re-
quested or proffered within ten days after the termination
of the bargaining between the parties.’’ That holding is
in accord with the plain language of the statute.
The text of §5 First of the Act (App. I, p. 115a), is in
permissive language; it provides that the services of the
NMB may be invoked by either party or may be proffered
sua sponte by the Board.
— =
The permissive nature of mediation, as distinguished
from the ‘‘must’’ nature of conferences under $6 and 42
First of the Act was recognized by Mr. Justice Harlan
=~
in writing the majority opinion in Brotherhood of Rail-
road Trainmen v. Jacksonville Terminal Co., 394 U.S. 369
(1969) at 378 it was said: ‘‘. .. a party desiring to effect
a change in rates of pay, rules or working conditions must
give advance written notice, §6. The parties must confer,
52 Second, and if conference fails to resolve the dispute,
either or both may invoke the services of the National Me-
diation Board, which may also proffer its services sua
sponte if it finds a labor emergency to exist, 45 First...’
(sua sponte in text; other emphasis supplied). Later in
Detroit € Toledo Shore Line R. Co. v. United Transporta-
tion Union, 396 U.S. 142 (1969) at 149 f.n. 14, Mr. Justice
Black in writing the majority opinion reiterated the state-
ment in the Jacksonville Terminal case which recognized
the permissive nature of mediation.
The majority opinion of this Court in this case refers
to the very page of the opinion in the Jacksonville Termi-
nal case, on which Mr. Justice Harlan noted the permis-
sive nature of mediation, 402 U.S. 574. The dissenting
opinion in this case in this Court also noted the may na-
ture of mediation, 402 U.S. at 597 (App. F, pp. 60a, 86a).
The court below, in its opinion in this case, quoted the
statement in the dissent in this case in this Court, saying:
“the National Mediation Board may add its pressure
through mediation’? (App. A, pp. la, 5a). Nevertheless,
the court below went on to hold that: ‘‘. . . the parties
must also exhaust the next step [after initial conference],
ie., the National Mediation Board. This they have not
done” (emphasis supplied). And the court below held
“neither UTU nor CNW may under the Act resort to
self-help . . .”? because of their failure to invoke media-
tion (App. A, pp. la, 5a, 6a).
Even if the court below was correct in treating the
conferences and negotiations of the parties pursuant to
the August 13, 1972 order of the District Court as initial
ni ad _— a
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conferences pursuant to §6 of the RLA, more than te,
days have expired since those conferences were concluded
without the NMB sua sponte having proffered its services
and without either CNW or UTU invoking the servicg
of the NMB. In such circumstances, as heretofore shown,
under the provisions of §6 of the RLA, the parties may
exercise self-help without mediation.
Further, if the court below was correct in holding that
the parties must re-do each step of the procedures of the
RLA, two further questions arise for which the court be
low offers no solution. Since the mediation step is per.
missive, insofar as the parties are concerned, and dis.
eretionary, insofar as the mediation board is concerned—
(1) How could the parties compel re-mediation?, and in
those cases in which the third step of the procedures of
the RLA had been exhausted by the President having
established an emergency board, pursuant to 410 of the
RLA, 45 USC 160, would the parties be required to re-do
that step and if so, (2) How could the parties compel the
re-establishment of an emergency board by the President
to re-investigate and re-report to the President with respect
to the underlying labor dispute?
5. The Decision of the Court Below That an Anti-Strike
Injunction Should Be Continued in This Case Is in Con.
flict With the Text of Section 8 of the Norris-LaGuardis
Act, 29 U.S.C. 108 as Construed by This Court in Its Opin.
ion in Brotherhood of Railroad Trainmen v. Toledo,
Peoria € Western R. Co., 321 U.S. 50 (1944).
We have seen above that the RLA does not impose a
duty upon either party to invoke mediation at any time.
However, §8 of the N-LaG. (App. I, p. 117a) Act pro-
hibits injunctive relief to any complainant who has failed
to make every reasonable effort to settle a labor dispute
“either by negotiation or with the aid of any available
=— =
governmental machinery of mediation or voluntary arbi-
tration”? (emphasis supplied).
In Brotherhood of Railroad Trainmen v. Toledo, Peoria
& Wesiern R. Co, (321 U.S. at 55-59, particularly in f.n.
11, p. 57 and 60-62) this Court made it clear that 93 of
the N-LaG. Act denies an anti-strike injunction to a rail-
road which fails to attempt to settle a labor dispute ‘‘with
the aid of any available governmental machinery of media- ‘i
tion” although in that case injunctive relief was denied ;
$
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under §8 of the N-LaG. Act because of the sefusal of
the railroad voluntarily to submit the labor dispute to
arbitration, notwithstanding it clearly appeared that un-
lawful acts were being committed for which an anti-strike
injunction otherwise would have been authorized under
(7 of the N-LaG. Act as an exception to the provisions
of §4 of the Act, as held in Chicago, Rock Island €&
Pacific R. Co. v. Switchmen’s Union of North America,
infra.
Plainly, the decision by the court below that an anti-
strike injunction should be continued, notwithstanding the :
failure of CNW to seek mediation is contrary to and in :
violation of the provisions of §8 of the N-LaG. Act as
construed by this Court.
6. The Decision of the Court Below That an Anti-Strike
Injunction Should Be Continued in This Case Is in Con-
flict With the Text of Section 7 of the Norris-LaGuardia
Act, 29 U.S.C. 107 and the Decision of the Court of Appeals
for the Second Circuit in Chicago, Rock Island & Pacific
R. Co. v. Switchmen’s Union of North America, 292 F.2d
61, cert. den. 370 U.S. 936 (1962).
Section 7 of the N-LaG. Act denies jurisdiction to courts
to issue an anti-strike injunction except when ‘‘unlawful
acts have been threatened and will be committed unless
|
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restrained or have been committed and will be continued
unless restrained’’ (App. I, p. 117a).
In Chicago, Rock Island ¢ Pacific R. Co., et al, »,
Switchmen’s Union of North America, et al., 292 Fg
61, cert. den. 370 U.S. 936 (1962) the railroad sought ay
anti-strike injunction based upon an alleged violation of
§§ 2 First and Second of the RLA. The union contended
the court lacked jurisdiction under the N-LaG. Act to
grant an injunction and appealed from an order of the
District Court granting a preliminary injunction. The
Court of Appeals reversed, holding that §4 of the Act
precludes the issuance of an anti-strike injunction in the
absence of a showing that unlawful acts were threatened
or being committed by the union as required by 47 of
the N-LaG. Act.
After the instant case was remanded by this Court to
the District Court last year, the District Court first found
in August 1971 that neither CNW nor the union had com.
plied with § 2, First, issued an anti-strike injunction and
ordered further negotiations. 330 F.Supp. 646 (App. E, pp.
48a, 55a-60a).
Following such further negotiations the District Court
found in December 1971 that both parties had complied
with § 2, First, 336 F.Supp. 1149 (App. D, pp. 9a, 43a-48a).
The court below took no exception to those findings by
the District Court but, instead ‘‘approved’’ them although
conditionally upon a subsequent judicial determination
that the union complied with § 2, First in re-mediation.
Thus, the court below did not find the unlawful act re-
quired by § 7 of the N-LaG. Act for the issuance of an anti-
strike injunction under the holding of Chicago, Rock
Island & Pacific R. Co., et al. v. Switchmen’s Union of
North America, et al., 292 F.2d at 71, but nevertheless held
an anti-strike injunction should be continued.
=
CONCLUSION
For the foregoing reasons petitioner respectfully sub-
mits that the writ of certiorari sought should be issued.
Petitioner further suggests that, since the judgment of the
Court of Appeals was so patently in error and the judg-
ment of the District Court, which has been published, was
in accord with this Court’s decision and mandate of last
it would be appropriate to grant the writ, summarily
reverse the judgment of the Court of Appeals and rein-
state the judgment of the District Court. Such disposition
ould be in the interest of justice by bringing this liti-
which, in one stage or another, has been pending
anuary 1966, to an expeditious conclusion.
as et Se
7 AAR RMR LGA MUS
gation
since J
Respectfully submitted
JOHN H. HALEY, JR.
605 First National Bank Building
East St. Louis, Illinois 62201
JOHN J. NAUGHTON
120 West Madison Avenue
Chicago, Illinois 60602
LESTER P. SCHOENE
818 Eighteenth Street NW
Washington, D.C. 20006
Attorneys for Petitioner United
Transportation Union
.* y | ay gre
bon 2 7 oat £ "8 5
t i brow, : Runt 4
IN THE
SUPREME GOURT OF THE UNITED STATES
OCTOBER TERM, 1972
wo. 22756
UNITED TRANSPORTATION UNION,
Petitioner,
Vv
CHICAGO AND NORTH WESTERN RAILWAY COMPANY,
Respondent.
APPENDIX
To Petition for a Writ of Certiorari to the United States
Court of Appeals for the Seventh Circuit
JOHN H. HALEY, JR.
605 First National Bank Building
East St. Louis, Illinois 62201
JOHN J. NAUGHTON
120 West Madison Avenue
Chicago, Illinois 60602
LESTER P. SCHOENE
818 18th Street NW
Washington, D. C. 20006
Attorneys for Petitioner
United Transportation Union
ERE RAP FSS ANTE RE cet |
St. Louis Law Printing Co., Inc., 411-15 N. Eighth St. 63101 314-231-4477
PPR ARES
INDEX
Page
Appendix A—Opinion of the Court of Appeais for the
Seventh Circuit, August 1, 1972 ...... la
Appendix B—Judgment ............cecececcccccees 7a
Appendix C—Order denying petition for rehearing.. 8a
Appendix D—Memorandum opinion and decree of
District Court, December 22, 1971 ..... 9a
Appendix E—Findings of fact and conclusions of law
of the District Court, August 13, 1971 48a
Appendix F—Opinions in the Supreme Court of the
United States, June 1, 1971
Opinion of the Court ............... 60a
Dissenting opinion ................. 73a
Appendix G—Opinion of the Court of Appeals for the
Seventh Circuit, March 6, 1970 ....... 88a
Appendix H—Findings of fact and conclusions of law
of the District Court, December 11,
BOD AeA seiko reckeedeesnsasthereneens 107a
_— ae ts Be a hel POLO BEE ALINE ILE LIE LINE IO LI LEE ICEL LSE, FN fa ak
Mens
APPENDIX A
United States Court of Appeals
For the Seventh Circuit
Nos. 72-1115, 72-1118
Chicago & North Western Railway Company,
Plaintiff-A ppellee-
Cross-A ppellant,
v )
United Transportation Union,
Defendant-Appellant-
Cross- Appellee.
Decided August 1, 1972
(unreported )
Before Me. Justice Cranx*, Commies and Pas, Cir-
cuit Judges.
Cusnx, Associate Justice.
The Chicago and North Western Railway Company
(CNW) brought this suit in 1969 to enjoin a threatened ;
strike call by the United Transportation Union (UTU)
involving the work rules of employees of Northwestern
on its railroad lines. North Western contended that UTU ;
had not complied with its duty under Section 2 First of
OPINION
|
* Associate Justice Tom C. Clark, United States Supreme Court,
Retired, is sitting by designation.
a
the Railway Labor Act (45 U.S.C. 8152 First)* to “
Wa
$i.
lil
UE
that the District Court did not
ab}
Wie
Hil
i
&
The Issuance of the Injunctive Relief Pending Appeal:
—
Norris-LaGuardia Act and an abuse of discretion. We
believe that this contention is completely answered by
the holding of this court in the previous appeal in this
case [not disturbed by the reversal on other grounds].
som Chicago € N.W. Ry. Co. v. United Transportation
Union, supra, at 983-985. We quote only one paragraph
of the opinion:
‘“There is nothing in the text of the Norris-LaGuardia
Act or in the legislative history surrounding the
drafting and enactment of the Act indicating a Con-
gressional intent to remove from the District Court
their long recognized power to grant injunctions
pending appeal. To remove from the District Courts
the power to grant injunctions pending appeal. . .
is to in effect make the District Court the court of
last resort on these matters regardless of the difficulty
or the novelty of the issues involved. In the absence
of any specific Congressional intention . . . we decline
to read into the Act such a serious limitation into
the judicial review process.’’ At 984.
In addition, this is as the District Court found ‘‘a case
of first impression’ in which there are no precedential
guidelines to follow and that present a ‘‘thorny problem”
of explosive quality. In the light of these considerations,
the ‘‘balance of equities herein favors the granting of an
injunction pending appeal. . . .’’ While the employees
here are protected by a million dollar bond, neither the
public nor the railroad have any protection from the
irreparable injury that would flow from a strike.
As for the claim that the UTU was not afforded a
hearing on the injunction issue, the record indicates that
CNW gave notice on December 22, 1971 of its intention
to seek a stay pending appeal. Some two to three weeks
thereafter UTU was given opportunity to and did present
its position, but to no avail.
The principal issue involved here—further mediation
_js not so easily resolved. However, we start with the
ition that in adopting the Act Congress intended
to and did create a ‘‘scheme of gradually escalating
res’? as Mr. Justice Brennan aptly described them
in Chicago € N.W. Ry. Co. v. Transportation Union, supra,
at 597. And, he added: “The Act is built upon a step-by-
step framework. Each one is carefully drawn to introduce
slightly different pressures upon the parties to reach
settlement from the preceding step. First, the parties
confer jointly. Next, the National Mediation Board may
add its pressure through mediation. . . .”? Id. In short,
“Congress was content to enact a machinery which dragged
on, with cooling-off periods and various status quo re-
strictions, while the parties were required to ‘treat with’
one another.’’ At 591.
However, as the Court points out in the opinion at
578: ‘The strictest compliance with the formal procedures
of the Act is meaningless if one party goes through the
motions with a ‘desire not to reach an agreement’ ”’. That
is exactly what happened here when the parties previously
went through each step of the procedures. The District
Court has found on remand of the case that neither party
acted in good faith in exerting every reasonable effort
to settle their differences. Having so tainted every step
of the required procedures of the Act, it is necessary
that they revisit each step in a good faith effort to settle
their dispute. The District Court, however, only required
that the joint conference step be invoked. We submit
that before self-help is permitted that the parties must
also exhaust the next step, ie., the National Mediation
Board. This they have not done. This latter step is the
very heart of the Act, because it brings into play the
mediation expertise of the Board. Still, this most influen-
tial and effective step has not in good faith ever been
a
+7 Corre
Se ee
ate .
In view of this failure to imvoke this step, neither
UTU nor CNW may under the Act resort to self-help
and appropriate restraint must be continued to prevent
such exercise. We do not pass upon the action of the
District Court with reference to its findings of good faith
efforts of the parties in their joint conferences in ey.
erting every reasonable effort to settle their dispute.
However the findings of the District Court as to the good
faith of the parties in the joint conference stage are
such that if they hereafter demonstrate their good faith
in mediation, those findings will stand as approved. We
do note that in Findings 78 and 79 the trial judge found
that UTU would not agree to any proposal for reduction
in the size of mainline crews; nor to accept any offer of
additional compensation for employees working on crews
of one conductor and one brakeman. Nor would CNW
agree to the “‘Jacksonville formula’’ which most of the
railroads have already embraced. In the light of the
previous bad faith that the trial court found present
at every step of the proceedings, such actions by the
parties are suspect and in conjunction with slight evidence
of future unwillingness to consider seriously any com-
promise may well be the basis for a bad faith finding.
Such adamant positions—crystallized during the previous
bad faith session of the parties—must be cast aside
before good faith negotiation and conciliation will succeed.
The trial court must appraise them with exceeding care
and make certain that the parties are in ‘‘the strictest
compliance’’ with the Act. If what the UTU indicated
as to the financial condition of CNW is true, the union
may be riding a good horse to death with featherbedding.
On the other hand, if the additional brakemen are neces-
sary to the safe and efficient operation of the railroad,
they should be put on as they have been by other roads.
Reversep aNp REMANDED.
—7a—
United States Court of Appeals
For the Seventh Circuit
Number 72-1118
Chicago & North Western Railway Company,
Plaintiff-Appellant,
vs.
United Transportation Union,
Defendant-Appellee.
CORRECTED JUDGMENT
Entered August 1, 1972
This cause came on to be heard on the transcript of the
record from the United States District Court for the
Northern District of Illinois, Eastern Division, and was
argued by counsel.
On consideration whereof, it is ordered and adjudged
by this court that the judgment of the said District Court
in this cause appealed from be, and the same is hereby,
Reversed, with costs, and this cause be and the same is
hereby Remanded to the said District Court in accordance
with the opinion of this Court filed this day.
a
=
APPENDIX C
United States Court of Appeals
For the Seventh Circuit
Number 72-1118
Chicago & North Western Railway Company,
Plaintiff-A ppellant,
vs.
United Transportation Union,
Defendant-A ppellee.
ORDER
Entered September 21, 1972
On consideration of the petition of the appellee, United
Transportation Union, for a rehearing by the Court in the
above-entitled appeal, and, no member of the panel and no
judge in regular active service having requested that a
vote be taken on the suggestion for an en banc rehearing,
and the panel having voted to deny a rehearing,
It Is Ordered that the petition of the appellee for a re-
hearing in the above-entitled appeal be, and the same is
hereby denied.
APPENDIX D
United States District Court
Northern District of Illinois
Eastern Division
Number 69 C 2401
Chicago & North Western Railway Company,
Plaintiff,
vs.
United Transportation Union, ‘
Defendant. :
December 22, 1971 f
:
(336 F.Supp. 1149)
Perry, District Judge
MEMORANDUM OPINION AND DECREE
This cause comes on for final judgment; and the Court, é
having heard the evidence and considered the briefs and
arguments of counsel, hereby makes its findings of fact
and conclusions of law:
Findings of Fact
1. Plaintiff Chicago and North Western Railway Com-
pany is a corporation engaged in the transportation by
rail of passengers and freight in interstate commerce and
a “carrier”? within the meaning of Section One (1) of
the Railway Labor Act (45 U.S.C., § 151) and will here-
inafter be referred to as ‘“‘CNW’’. At the time of the
arr ——
ev PAPIAMENTO Seat CAPAC CTRL A WERE RNC Ht
———
commencement of this action the CNW consisted of
rate corporations which had been merged into the CNW
as districts thereof; the CNW Railroad Company as it
existed prior to such mergers had become known as the
‘““CNW, Proper’; the former Chicago, St. Paul, Minne
apolis and Omaha Railroad Company had become the
‘Omaha District’’ of the CNW; the former Milwaukee &
St. Louis Railroad Company had become the ‘“‘M & St.
L.”’ District of the CNW; the former Litchfield & Madi-
son Railroad Company had become the “‘L & M”’ District
of the CNW and the former Chicago Great Western Rail-
road Company became the Missouri District of the CNW
in August 1969.
2. Prior to January 1, 1969 the Brotherhood of Railroad
Trainmen was a voluntary union labor organization and
the representative under the Railway Labor Act of train
and yard service employees of some of the CNW and
some of the other railroads which were merged into and
became districts of the CNW; the Order of Railway Con-
ductors & Brakemen was the representative under the
Railway Labor Act of some train service employees of the
CNW and other railroads which were merged into the
CNW and the Switchmen’s Union of North America was
the representative under the Railway Labor Act of yard
service employees of railroads which were merged into
the CNW. Each of those labor organizations was repre-
sented on each such railroad by separate General Chair-
men and separate collective agreements which existed be-
tween each such General Chairman and each such railroad
with respect to rates of pay, rules and working conditions
were retained after such railroads were merged and be-
came districts of the CNW. On January 1, 1969 the
Brotherhood of Railroad Trainmen, Order of Railway Con-
ductors & Brakemen and the Switchmen’s Union of North
America were merged into and became a part of Defend-
ant United Transportation Union which became a party
— 10a —
—lla—
to each separate collective agreement theretofore existing
between the separate railroads and the several labor
organizations as the representatives of employees of the
(NW and the other railroads which were merged into
and have become districts of the CNW.
3 The Award of Arbitration Board 282 which was
made in pursuance of Public Law 88-108, 45 U.S.C., § 157
(1971 Supp.), became effective June 24, 1964 for a period
of two years. It prohibited changes in main line crews
consisting of a conductor and two trainmen in road serv-
ice but did authorize changes in main line crews consist-
ing of a conductor and either more than two or less than
two trainmen. It also authorized changes in branch line
and yard crews irrespective of the number of persons
theretofore employed in such crews. Px 1, p. 14, para-
graph A(2), A(3). It also provided for the arbitration
of disputes not resolved by agreement with respect to the
number of persons to be employed in crews in which
changes were authorized in accordance with certain speci-
fied guide lines; one of which was ‘‘practices regarding
the consist of crews in comparable situations where such
practices are not in dispute.’? Px 1, pp. 15-19. It also
provided for protection of the employment of certain
persons. Px 1, 19-20.
4. The CNW employs a total of 808 crews; 245 in main
line service, passenger, or through freight service; 165 in
branch line or local or way freight service and 398 in
yard service. The Award of Arbitration Board 282 did
not authorize any reduction in the 245 main line crews,
although it did authorize changes in the branch line and
yard crews, 67 main line crews, 52 branch line crews and
102 yard crews for a total of 221 crews were not subject
to reduction under the law of Wisconsin. Thus, at the
commencement of the dispute involved in this case there
were a total of 587 crews employed by CNW outside the
— 12a —
State of Wisconsin; 178 in main line passenger or through
freight service; 113 in branch line or way freight Service
and 296 in yard service.
5. Under the Award of Arbitration Board 282 CNW had
obtained authority to employ a conductor and less than two
trainmen in 72 out of a total of 113 branch line or way
freight and local service which were employed outside the
State of Wisconsin and to reduce to a foreman and les
than two helpers 143 out of a total of 296 yard crews em-
ployed outside the State of Wisconsin, or a total of 215
crews and yard crews which were employed outside the
State of Wisconsin. Tr. 220-224, 258, 289, 326-327, 353, 368,
S.Tr. 226-233.
6. In July 1965 in pursuance of Section 6 of the Railway
Labor Act the Union served on the CNW notice of its de-
sire for an agreement to become effective on January 25,
1966, the day following the expiration of the Award of
Arbitration Board 282, to provide for a minimum crew
consist of not less than a conductor and two or in some in-
stances three trainmen in all road service and of not less
than a foreman and two helpers in yard service. Px 9, 10,
Tr. 89, 226-227.
7. CNW refused to meet, confer, discuss or negotiate
with the Union with respect to the Union’s notices, on the
ground they were legally ineffective, (J. R. Wolfe Aff. p.
11, Tr. 230,) after which, on October 4, 1965 the National
Mediation Board, hereinafter ‘‘NMB’’, assumed jurisdic-
tion of the dispute arising from the Union’s notices, J. R.
Wolfe Aff. p. 12.
8. On December 24, 1965 in pursuance of Section 6 of the
Railway Labor Act, CNW served notice on the union of
its desire for an agreement for CNW to have the unre-
stricted right to determine when and if trainmen should
be used in each crew in road and yard service and if used,
the number and classification of employees to be used and
_—_
— 13a —
for the elimination of all contrary agreements, rules, regu-
lations and practices. Px 12.
9, CNW also proposed that if no agreement should be 3
reached that the dispute arising from the union’s July 1965
and CNW’s December 1965 notices be referred by the
unions’ representatives on the CNW to a committee to be
established by the union to handle those notices concur-
rently with other notices served by the union and by other J
railroads on the union for further handling on a national
basis with a committee representing the railroads. Px 12.
10. The unions’ representatives on the CNW met with
representatives on CNW on January 18, 1966, discussed
CNW’s notice but declined to discuss the union’s notice
concurrently with and declined to agree to refer the dis-
pute to a national committee to be handled on a national
basis concurrently with committees representing the CNW
and other railroads which had served the same notice on
the union in December 1965.
11. Thereafter, at the request of CNW, the NMB as-
sumed jurisdiction of the dispute arising from CNW’s De- f
cember 1965 notice as it did of disputes arising from no- :
tices served by other railroads on the union in December
1965.
12. The positions of the parties became the subject of
litigation in Akron & Barberton Belt R. Co., et al. v.
Brotherhood of Railroad Trainmen, 250 F.Supp. 691 (D.C., z
Mar. 3, 1966); 252 F.Supp. 207 (D.C., Mar. 28, 1966); 254 :
F.Supp. 306 (D.C., May 19, 1966) and Akron & Barberton
Belt R. Co. v. Order of Railway Conductors & Brakemen,
953 F.Supp. 538 (D.C., April 19, 1966) in which CNW was
a party plaintiff, for a declaratory judgment that the
union’s July 1965 notices were legally ineffective because
they were served during the period the Award of Arbi-
tration Board 282 was in effect and for an injunction
PALI YARIS RR I I aR ee
Bad GA
SSM LINES
—
against a strike by the union over the dispute arising from
its notices.
13. On October 4, 1966 while the Akron & Barberton
Belt case, was pending on appeal, the NMB terminated its
jurisdiction of disputes between Atlantic Coast Line, Bos.
ton & Maine and Des Moines Union R. Co., (now a part of
CNW) and the union which arose from notices served by
and upon the union and those railroads in 1965 which were
the same as those served by and upon CNW and the union
(Dx 1, p. 13). The railroads sought a declaratory judg.
ment that the union had violated Section 2, First of the
Railway Labor Act by not having bargained in good faith
and by refusing to agree to national handling of the dis.
putes arising from the aforementioned notices. Dx 1, pp.
2-34. The District Court found in favor of the union on the
question of good faith bargaining but held the union had
violated Section 2, First of the Railway Labor Act by re.
fusing to engage in national handling of the dispute.
14. On May 12, 1967 the United States Court of Appeals
for the District of Columbia Circuit decided the Akron
@ Barberton Belt cases (128 U.S.App.D.C. 59, 385 F.2d
581), reversed the decision of the District Court that the
union’s 1965 notice was legally ineffective because served
on the railroads during the period the Award of Arti-
tration Board 282 was in effect; held that the union’s no-
tices were legally effective to impose upon the railroads
their duty to bargain under Section 2 First of the Railway
Labor Act and that the railroads, including the CNW, by
refusing to enter into negotiations with the union on the
union’s 1965 notices, ‘‘had breached their statutory duty
under the Railway Labor Act to confer and bargain’’; that
CNW and the other railroads had forsaken their right to
insist on conferences and that the dispute properly had
been advanced to mediation. (385 F.2d at 592, 594-598,
599.)
untfiien
15. On September 6, 1967 the United States Court of
for the D.C. Cireuit decided the Atlantic Coast
Line case (Brotherhood of Railroad Trainmen v. Atlantic
Coast Line Railroad Co.], 127 U.S.App.D.C. 298, 383 F.2d
995 reversed the decision of the District Court, held the
Act by refusing to agree to national handling of the crew
consist dispute arising from notices served in 1965 by the
union on some 80 railroads and the counter-notices served
on the union by those 80 railroads. (383 F.2d at 226, 228-
230).
16. In January 1968 the Supreme Court denied petitions
by the railroads for writs of certiorari in the Atlantic
Coast Line case, [Atlantic Coast Line Railroad v. Brother-
hood of Railroad Trainmen] 389 U.S. 1047, 88 S.Ct. 790,
19 L.Ed.2d 839 and in the Akron & Barberton Belt case,
[Akron & Barberton Belt Railroad Co. v. Brotherhood of
Railroad Trainmen] 390 U.S. 923, 88 S.Ct. 852, 19 L.Ed.2d
983.
17. In January 1965, before the dispute in this case
arose, the former Brotherhood of Railroad Trainmen, here-
inafter referred to as ‘‘BRT’’, made an agreement with the
New York Central, the Pennsylvania R. Co., and the Erie-
Lackawanna Railroads and their subsidiaries with respect
to erew consist which came to be known as the Luna-
Saunders Agreement. It provided for a minimum crew of
a conductor, two trainmen in road service and a foreman
and two helpers in yard service and for c-ews of a con-
ductor and less than two trainmen in road service or a
foreman and less than two helpers in yard service which
had been so established prior to January 24, 1964 to con-
tinue as such. Dx 1, pp. 213-215, 226-227, 402-406.
18. On March 22, 1965, the union made an agreement
with the B & O R. Co., and its subsidiaries which came to
be known as the Luna-Touhy Agreement. It was substan-
—- Ma —
tially the same as the Luna-Saunders agreement. Dx 4, tab
2.
19. On August 11, 1966, the Reading R. Co., and the
former BRT made an agreement resolving the crew consist
dispute which arose from notices served by and upon the
union and that railroad in 1965 which were the same as
the notices served in 1965 by and upon the union and CNW
and other railroads. That agreement, like the Luna-Saup.
ders agreement provided for all road and yard crews to
consist of a minimum of a conductor or foreman and two
trainmen or helpers and for crews established at less than
that number prior to January 25, 1964 to continue as so
established. Dx 1, pp. 267, 422-425.
20. On September 16, 1967 the Southern Pacific Com-
pany made an agreement with the former BRT to estab
lish a minimum crew consist in road service of a conductor
and not less than two trainmen. Dx 4, tab 4.
21. On March 19, 1968 the President of the BRT met
with the President and Chairman of the Board of CNW
and discussed the crew consist dispute. The result of the
meeting was an agreement for the parties to study the
crews which had been working with less than a conductor
and only one trainman in road service and a foreman and
one helper in yard service and for the CNW Vice Presi-
dent of Personnel James R. Wolfe to meet with the union’s
general chairmen in May, June, July and August to try
to settle the dispute. Tr. 239-40
22. In March 1968 an agreement which became known
as the ‘‘Jacksonville Agreement’’ was made by the union
with the Missouri Pacific Railroad Company, the Seaboard
Coast Line Railroad Company and the Southern Railway
Company with respect to the crew consist dispute. That
agreement provided for the railroads to select 50% of
the crews which had been reduced to less than two train-
men in road service and two helpers in yard service, im-
—1l7a—
mediately to be increased to a minimum of two trainmen
and two helpers and for the remaining 50% to be subject
to negotiation and if no agreement should be reached, for
the dispute to be referred to the Presidents of the union
and the railroads and if not resolved by them for the par-
ties to revert to their self-help positions. Px 4, tab 5. A
final agreement was reached without the dispute being re-
ferred to the Presidents of the union or of any of the rail-
roads. Px 4, tabs 8, 10, 11, 12, 13 and 14.
93. Other final agreements were made resolving the crew
consist dispute arising from the 1965 notices between the
GM & O RB. Co., on February 22, 1968 and the Union Pa-
cifie on March 1, 1968.
24. There were no negotiations between CNW and the
unions representing its employees with respect to the mer-
its of the crew consist dispute arising from their 1965
notices from the time the union’s notice was served in July
1965 until May 16, 1968. Tr. 239-242
95. On March 8, 1968 CNW sent a letter to the union’s
representatives and to all of its train service employees
on March 13, 1968 proposing an agreement for CNW to
retain the authority it had obtained pursuant to the Award
of Board 282 to man 215 crews with less than two train-
men in road service and two helpers in yard service and
pay an additional $3.45 to each employee who worked in
such a reduced crew. Px 14, 15. The union’s representa-
tives rejected the proposal as contrary to the policy of
the union to substitute money for a safe crew complement,
Px. 13, which was in accordance with the policy adopted
by the former BRT prior to its merger into UTU on Jan-
uary 1, 1969 which was confirmed by the President of the
former BRT in his testimony in the Atlantic Coast Line
case, Dx 1, pp. 161-165, 227, 376-377, 416-417 and in his
testimony in Louisville & Nashville R. Co. v. United Trans-
portation Union (J. R. Wolfe aff. p. 17).
— ae
26. The Constitution of the UTU into which the BRT
was merged on January 1, 1969 contained no restrictions
and there were no directives restricting the consideration
of money in the resolution of the crew consist dispute,
S.Tr. 251, 295-299
27. Representatives of the union and CNW met on six
occasions, on May 16, June 12, June 20, July 17, August
6, and August 8, 1968 during which they discussed yard
crews on the basis of studies made by CNW. At their
last meeting in which the union’s Vice-President
participated, the union urged resolution of the dispute on
the basis of agreements made on other railroads which
was rejected by CNW which insisted upon resolution of
the dispute on the basis of a study of each individual crew,
Tr. 247, and that there had been no discussion of main line
or branch line crews which the CNW desired to reduce
under its notice of December 1965.
28. The union’s Vice President then suggested calling
in the National Mediation Board, hereinafter ““NMB”,
Tr. 248.
29. The next day Maloney told Wolfe over the tele.
phone that road jobs should be discussed before calling
in the NMB and he would call Wolfe for further confer.
ence.
30. There were no further conferences between CNW
and the union until April 22, 1969 because the union had
struck the Belt Railway of Chicago over the crew consist
dispute; Wolfe was engaged in negotiating agreements
incident to the merger of the Chicago Great Western into
the CNW;; the union had called a strike against the Louis-
ville & Nashville R. Co., over the crew consist dispute
and the President had appointed an Emergency Board
to investigate the crew consist dispute between the union
and the Belt Railway; the Louisville & Nashville R. Co.,
and the Illinois Central R. Co, Wolfe and Maloney agreed
-_-
—
to postpone further conferences until after the Emergency
Board made its report. J. R. Wolfe Aff. 18-21. Tr. 240,
942-249, 254-255.
31. On April 14, 1969, the day after the Illinois Central
had made an agreement with the union, Maloney called
Wolfe for further conferences saying the President of
the union was after him to get moving and they agreed
to meet April 22, 1969. J. R. Wolfe Aff. 21, Tr. 255.
32. CNW and the union met on April 22 and 30, May
9 and 15, 1969, on which latter date they received notice
a NMB mediator would arrive June 2, 1969 to commence
mediation of the dispute. During those meetings the
union’s representative told the CNW it was the last rail-
road with which the crew consist dispute existed and the
union’s President was ‘‘champing at the bit’’ for a settle-
ment to be made. The union urged an agreement similar
to agreements made by other railroads, particularly those
made by other railroads operating alongside the CNW.
The CNW took the position that all CNW crews had not
been discussed with union representatives on districts
other than the CNW Proper. The union’s representatives
on all the other CNW districts were called in and took
the same position—that there was no need for a discussion
of every CNW crew in view of the precedent set by agree-
ments other railroads had made with the union, particu-
larly those operating in the same terminals and same
areas as the CNW but would be agreeable to variations
elsewhere. J. R. Wolfe Aff. 24-25, 28-29; Tr. 260-261, 263,
267, 270-272.
33. In December 1969, CNW was familiar with agree-
ments between the union by other railroads operating
in the same place and alongside the CNW and considered
ihat those agreements established a same general rule
of returning 90% of the crews, consisting of a conductor
and one trainman in road service and a foreman and one .
helper in yard service to two trainmen and two helpers
ER TT
4
Rewer
TT ONO R Le OE Oa ae OF
werr
— 2a —
and that all of the agreements established a national pat.
tern of between 93 and 100% of the crews which were
reduced to one trainman in road service and one helper
in yard service being increased to crews consisting of
two trainmen and two helpers. Tr. 345-347.
34. On June 2, 1969 Arthur Glover, a veteran mediator
of the NMB commenced efforts to mediate the dispute.
He first met with CNW’s Vice President, J. R. Wolfe and
reviewed the negotiations. Wolfe told him the union had
taken the position in the Atlantic Coast Line case that
the crew consist dispute should be settled on each railroad
because of the differences in climate, terrain, hills, curves,
etc., but the union had refused to discuss those matters
and was insisting on increasing all crews reduced by
CNW to a conductor and one trainman in road service
and to a foreman and one helper in yard service by adding
an additional] trainman and/or helper on the ground that
other railroads had made such agreements.
35. Wolfe stated the CNW should study each road
erew which had been working with only one trainman
and each yard crew that had been working with only
one helper and then each such crew should be discussed
by CNW and the union. Mediator Glover and Wolfe
agreed to meet the next day, June 3, 1969. At that time
Mediator Glover asked Wolfe how long it would take
CNW to make the crew studies it desired. Wolfe stated
he thought there should be a study of every job. Mediator
Glover said the union would not stand for that. CNW
then suggested a recess for two weeks during which CNW
would try hard in the next two weeks, to study 50 of
the 180 crews working with only one trainman or helper.
Later that day, Mediator Glover advised he wanted to
meet both sides the next day. Tr. 273-277.
36. Representatives of the CNW and the union met with
Mediator Glover on June 4, 1969. At Glover’s request
CNW stated the reason for the two week recess it desired
eee
for crew studies was to try to show the union why it
should not insist on increasing the reduced crews based
on what other railroads had done. The union took the
position that the studies would not help in reaching an
nt. Wolfe was cognizant that even with a time
and motion study of a particular crew there could be
a basis for a difference of opinion whether the crew should
consist of two trainmen or only one in road service and
of two helpers or only one in yard service (Tr. 32-3).
The union took the position that it would continue to
insist on agreements which other railroads had made with-
out crew studies, particularly agreements such as had
peen made by railroads operating in the same terminals
and alongside the CNW, such as the agreement which
the Great Northern & Milwaukee had made. However,
the union agreed to the recess desired by CNW to make
its crew studies. Tr. 275-278.
37. The CNW and Union representatives next met on
June 18, 1969 with two Mediators—Glover and Willetts.
CNW had completed its studies of 45 of the 50 crews.
The union was aware of the crews which CNW had studied -
but again questioned the worth of the studies in view
of what agreements other railroads had made. The union
then submitted a written proposal which its representa-
tives stated was based on its own study of the crews.
38. The union’s proposal (PX 16) was for main line
local freight crews to consist of a minimum of a conductor
and three trainmen; for other main line freight crews
to consist of a minimum of a conductor and two train-
men; for yard crews to consist of a foreman and two
helpers and for suburban passenger crews to consist of
a minimum of a conductor and one trainman on trains
of three or less cars and a conductor and two trainmen
on trains of four or more cars, which was considered to
conform to a national pattern of increasing 98% of crews
in which only a trainman or helper had been employed
ial
Ty
— 29a —
to two trainmen or two helpers. (J. R. Wolfe Aff. 33, Ty.
280-282, 285-286). The Mediators then asked for a pro.
posal by CNW.
39. The CNW submitted its first written proposal to
the union pursuant to the suggestion of the Mediators,
on June 20, 1969. It was for a continuation of the av.
thority CNW had obtained pursuant to the Award of
Arbitration Board 282 to employ a foreman and one
helper to be continued in yard and branch line crevws,
except for five yard crews in which a minimum of a
foreman and two helpers would be required and crews
employed on three branch lines would be a minimum of
a conductor and two trainmen; that 63 yard crews in
which two helpers had been employed be reduced to a
minimum of a foreman and one helper; that the crews
on 30 way freight or switch run crews, which had con-
sisted of a conductor and two trainmen be reduced to a
conductor and only one trainman, for all crews employed
in main line through freight trains making less than five
pickups or setouts to consist of a minimum of a conductor
and only one trainman.
40. The proposal would have authorized the CNW to
employ only one trainman or helper in 350 to 400 crews
outside Wisconsin, although it had authority, pursuant
to the Award of Arbitration Board 282 to employ only
one trainman or one yard helper in only 215 crews outside
Wisconsin. It also provided for arbitration of any future
dispute with respect to changes in the number of persons
to be employed in any crew. That proposal was discussed
and rejected by the union. J. R. Wolfe, Aff. 34 Tr. 291,
302-303, 351-358.
41. On June 23, 1969 Mediator Willets and CNW’s
Wolfe had some private discussion and Mediator Willets
handed Wolfe a second proposal by the union (PX 17).
That proposal was a concession from the union’s first
proposal (Tr. 289) and was for all yard crews to consist
_
of a minimum of a foreman and two helpers except for
eight crews in which only one helper should be employed,
for all road crews to consist of not less than a conductor
and two trainmen except that the crews employed on
way freight trains operating between three specified points
should consist of a conductor and three brakemen and
for crews On passenger and suburban service to consist
of a minimum of a conductor and two brakemen except
erews on trains of three or less cars which should consist
of a conductor and only one brakeman.
42. On June 25, 1969 with Mediator Willets the pro-
posals of the Union and CNW were discussed at length—
each party explaining why it could not accept the other’s
proposal. CNW brought up the absence of a proposal
by the union to change main line crews saying the Award
of Arbitration Board 282 did not go far enough with
respect to changes in main line crews. The union took
the contrary position and would not discuss changes in
main line crews. J. R. Wolfe Aff. 35, Tr. 285, 289, 303-
304.
43. On June 30, 1969 CNW made its second proposal to
the Union (PX 20). It was a concession from its prior
proposal (Tr. 365) and was that it should continue to have
the authority which it had acquired pursuant to the
Award of Arbitration Board 282 except that five yard
crews in which one helper was employed be increased to
two helpers, that five yard crews in which two helpers
were working be reduced to one helper, that three speci-
- fed branch line crews in which only one trainman was re-
quired to be increased to two trainmen that the crews on
three other trains in which a conductor and two brakemen
were employed be reduced to one brakeman and for arbi-
tration of any dispute as to future changes in any crews.
PX 20, Tr. 260-262. It was rejected by the union; one of
the grounds was the proposal for arbitration Tr. 296-299.
44. On July 1, 1969 the union submitted its third written
ae eee en tee —-
EN LEN LTTE OEE LEN NE ELIA LLIN TAI MSA BNI CRIN I A ewe
? i ty ii CFA OL UP hdl alia SRO He
TY
proposal to CNW, it was the same as the union’s second
proposal except that it added three additional yard crows
to consist of a foreman and only one helper (PX 18) and
thus proposed 175 yard crews consisting of a minimum of
two helpers and five crews to consist of only one helper
(PX 18). CNW acknowledged it was a retreat by the
union but still was well above the 80% of the crews which
the Union’s General Chairman Maloney originally offered,
Tr. 22, 287, 363-364. Also on the same day CNW submitted
its third written proposal to the Union (PX 21). It was
the same as CNW’s second proposal but omitted any pro.
vision for arbitration of future disputes concerning the
consist of crews, Tr. 290, 364. CNW also submitted four
other proposals, PX 22, proposing arbitration of the con-
sist of all train and yard crews, PX 23, which was a re.
quest for the union to state what work rules it would be
willing to trade for an agreement by CNW to add a second
man to crews in addition to those which CNW in its pro-
posal No. 3 offered to increase from one to two road train-
men or yard helpers and its proposal No. 6 for the union’s
erew consist demand to be held in abeyance for one year
and for the union not to serve new crew consist demands
except by mutual agreements or through regional or na-
tional handling in return for a five day work agreement
for employees in suburban service upon specified condi-
tions which should not be subject to change for three years.
45. CNW and the union met with one or both mediators
on four days between June 26 and July 2, 1969. The CNW
crew studies and pros and cons of crew consist studies and
the proposals of the parties, including the union’s pro-
posals of an agreement like agreements on other railroads
had made particularly the Milwaukee and Great Northern
were discussed and argued and each party rejected the
proposals of the other. On July 2, 1969 the union handed
a letter to Mediator Glover confirming the exchange and
thorough discussion of the several proposals, that the
— 25a
qion diligently strove for a settlement but the CNW pro-
gals evidenced a backward position and were unaccept-
able and that the parties were hopelessly deadlocked but
that the union would comply with any decision the Medi-
ator might make. PX 25. Later that day Mediator Glover
announced that mediation had failed. J. R. Wolfe Aff. 36,
Tr, 304-308.
46. Voluntary arbitration was proffered by the NMB on
October 10, 1969 which the CNW accepted and the Union
rejected (Tr. 310-311) and on October 16, 1969 the NMB
terminated its jurisdiction of the dispute. DX 7.
47. On November 10, 1969 the Union’s Vice President
Tuffley asked CNW’s Vice President Wolfe to resume
negotiations. Wolfe said he would not care to bargain
under the threat of a strike and Tuffley assured Wolfe
there would be no strike while negotiations were in prog-
ress and they agreed to and did resume negotiations com-
menecing November 12, 1969 which continued thereafter
every day through November 18, 1969. During the first
two days they identified all the crews on the CNW Sys-
tem which CNW had been authorized to man with less
than a conductor and two trainmen on road service and
less than a foreman and two helpers in yard service and
which of them were in fact working with two trainmen or
helpers with a conductor and with less than two trainmen
in road service and a foreman and with less than two
helpers in yard service. DX 2 and 3. Main line crews
which were not subject to change under the Award of
Board 282 were not listed because Tuffley said he was not
willing to discuss them. J. R. Wolfe Aff. 37, Tr. 318-21,
329). During the six days of negotiations Wolfe and Tuf-
fley discussed all of the 216 crews the CNW had been au-
thorized to reduce under the Award of Board 282 and the
positions of the parties with respect to changes in the
number of persons to be employed in those crews. The
——
— 26a —
result of those discussions was that the union wanted al]
but 36 crews to be increased from one to two road traip.
men or yard helpers which CNW considered was consistent
with General Chairman Maloney’s original demand that
80% of the crews employed on the CNW ‘‘Proper’’ Dis.
trict consist of not less than two road trainmen and two
yard helpers. J. R. Wolfe Aff. 37, DX 3 and 4; Tr. 314,
316-318-321, 329, 331.
48. Commencing on September 9, 1971 after this case was
remanded by the Supreme Court, CNW and the union have
engaged in 32 formal negotiating conferences, S.Tr. 15,
49, At the outset the union agreed to CNW’s proposal
to negotiate with respect to every crew employed by CNW
in main line, branch line and yard service upon criteria
such as work done by each crew, safety and other, such as
the guidelines established by Board 282, irrespective of
the percentage of crews which other railroads had agreed
to increase from one to two or more trainmen. The union
also agreed to consider in the negotiation and its conelu-
sion as to whether a crew should consist of less than two
trainmen or two yard helpers additional pay for persons
employed on crews of less than two road trainmen and two
yard helpers. It was then agreed that CNW would pre-
pare a list identifying all the crews it employed, what
each crew did and which of the crews it was authorized
to work with less than two trainmen or yardmen and fur-
nish that information to the union’s negotiators, with a
statement of CNW’s position with respect to what should
be the consist of the crew after which the union would
present its position with respect to each crew. S.Tr. 16-18,
74-77, 125-126, 223-224, 249-253.
50. CNW commenced preparing a list of the crews em-
ployed first yard crews, and branch line, local and way
freight crews and then main line through and local crews.
As the lists were completed they were submitted to the
— 27a —
gnion’s representatives on September 15, 16 and 17 who
checked them and any questions were resolved and by
September 20, 1971 the parties had agreed to the accuracy
of the total number of crews and the service in which they
were employed, as stated in paragraphs Nos. 4 and 5 of
these findings. S.Tr. 91-94, 223-233.
51. While the parties were verifying the identification
of crews the union asked CNW what about the sharing of
savings from crews which might consist of less than two
trainmen or yardmen and how much the CNW was con-
sidering and whether it would be part of the basic pay of
the employee and CNW replied about $4.00 for conductors
and $3.00 for trainmen. S.Tr. 95, 250-251.
52. On September 21st (S.Tr. 94, 118, 233) the CNW
commenced its presentation with respect to yard crews.
(NW stated what work the crew did, whether it was a
transfer job, hump work, flat switching, industry switch-
ing and whether the work done by the crew was the same
or a different type of work from time to time (S.Tr. 78-
95) and what it considered the consist of the crew should
be, either two or one helpers. After CNW completed its
presentation as to yard crews it then proceeded with its
presentation of the work of road service crews, through
freight, local and way freight on branch and main lines
and on October 1, 1971, 7 or 8 conference days later, CNW
completed its presentation with respect to all 808 crews
including 221 crews in Wisconsin. S.Tr. 118-127, 233, 236.
53. During the CNW’s presentation the union took issue
with and argued with CNW’s statement of facts and its
conclusions with respect to certain crews and agreed as to
others. S.Tr. 123-26, 239.
54. The union then made its presentation in about five
conference days commencing on October 4, 1971 and com-
pleting it on October 8, 1971. S.Tr. 137, 139. At the outset
the union suggested that, although all 808 crews had been
DELETE IESE AIOE TE
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discussed during CNW’s presentation, including 2
which worked in Wisconsin, since those employed in Wig
consin could not effectively be changed because of the Wis.
consin law, that the union's presentation be limited
crews employed outside Wisconsin, to which CNW agreed.
S.Tr. 236-237. Also, the union stated that, since CNW
total position was for 436 out of 587 crews employed ont.
side Wisconsin to consist of less than two road trainme:
or two yard helpers and for the other 151 should consis
of two helpers, the union’s presentation would be limited
to those 436 and that the union’s position would be pre.
sented by its general chairmen and local chairmen on the
basis of the personal knowledge of the work done by those
crews, S.Tr. 128, 237-238.
55. Throughout the negotiations the union was repre-
sented by its Vice President Tuffley; General Chairman
Maloney who represents CNW’s conductors, trainmen and
yardmen, employed on CNW Proper, the former Chicago
Great Western and the former Minneapolis & St. Louis
and by General Chairman Roessler who represented train-
men and yardmen on the former Chicago, St. Paul, Minne
apolis & Omaha. S.Tr. 219-220. The Union discussed each
of the 436 crews which worked outside Wisconsin and
which the CNW, in its presentation, proposed should con-
sist of less than two trainmen or yardmen. The union
agreed with CNW’s position on some crews and stated
their objections and the reasons for their objections for
certain crews to consist of not less than two trainmen or
yardmen. From time to time CNW representatives raised
objections and expressed their views in opposition to the
union’s position on particular crews as the union had
done during the CNW’s presentation. To further sub-
stantiate its position and that of its general chairmen, the
union produced six local chairmen, two of them formerly
had been General Chairmen, R. E. Stahley, formerly had
been General Chairman on Chicago Great Western, repre-
senting all employees on the Chicago Great Western and
is now a locel chairman representing CNW employees in
Minneapolis-St. Paul; R. E. Stanley, who had been Gen-
eral Chairman on the Minneapolis & St. Louis and is now
a local chairman and five other local chairmen, represent-
ing roadmen and yardmen in the Galena Division of CNW,
including Chicago Freight Terminal, Peter Kozoyad and
David Gray representing roadien and yardmen employed
in CNW’s Wisconsin Division, R. J. Keller who represents
yardmen in the Chicago Freight Terminal, W. A. Burke
of Boone, Iowa and his brother William Burke, both of
whom represent roadmen and yardmen in Iowa. S.Tr. 240-
242. Those representatives of the union stated arguments
for the union’s position and their objections to CNW pro-
posals and the reasons for each with respect to particular
crews in addition to those stated by the union’s general
chairmen Maloney and Roessler. S.Tr. 128-133, 239-240.
CNW acknowledged that the union's representatives who
participated in the discussion had the opportunity and
experience to have knowledge of the work done by the
crews involved. S.Tr. 130.
56. The discussion of main line crews was more thorough
than the discussion of other crews. S.Tr. 139. The union’s
reasons for not agreeing to CNW’s proposal for changes in
constant observation by two men, one on each side of the
caboose, because such trains are long and operate at high
speeds and by having constant observation on both sides
at the rear, brake rigging that might drop down, loads
shifting, hot boxes which cause journals to burn off, could
more readily be detected, particularly at night and in
snow and dust and damage and injury could be prevented;
also that draw bars and air hose which break could more
readily be found and repaired; that such trains consist of
blocks of cars and present more and dangerous difficulties
for the crew in picking up cars to be added to a block of
ears at intermediate stations. S.Tr. 58-59, 264-274 Cxw
acknowledged that brake rigging does dcop down ent
drags under the car. that hot boxes do develop and jour.
nals do burn off and that air hoses and draw bars do break,
as claimed by the union. S.Tr. 139-144
of each had been stated with respect to each crew. &Tr.
133.
58. Almost every day, from the beginning of negotiations
on September 9, 1964 the question of additional pay for
employees working in crews of less than two trainmen or
yardmen was discussed, but (NW made no definite money
proposal until October 8, 1964, S.Tr. 95-106, 252-254. At
some point in the negotiations CNW renewed its 1968 offer
to pay an additional $3.45 to employees working in crews
of less than two trainmen or yardmen rather than to in-
crease the number of men in crews was confirmed and
rejected by the union. S.Tr. 60, 96. On September 16 and
17, 1971 CNW suggested paying an additional $4.00 to
conductors and $3.00 to trainmen working in crews of less
than two trainmen and that the amount might be in-
creased depending on how many one trainmen crews
should be agreed upon but did not answer the union's
question whether the additional amount would be part of
basic pay of the conductor and trainmen, S.Tr. 95-96, 245,
252-254. At some point the union also asked CNW if it
would agree to a rule such as contained in the agreement
between the former Milwaukee & St. Louis and the ORC&B
for a conductor working without a trainman to be paid
what the absent trainman would have made was discussed
and labeled a “‘bastard’’ rule by CNW and was not a shar-
ing such as CNW was talking about with respect to crews
in which less than two trainmen should be employed. S.Tr.
102-105.
—
—
59. On October 16, 1971 CNW presented its first proposal
to the union. It did not deal with crews employed in Wis-
consin although those crews had been discussed it also had
could not be changed because of the Wisconsin law the
parties would deal only with crews employed outside Wis-
consin and its proposals excluded those crews. S.Tr. 23-26.
The proposal was that out of 144 main line crews which
had not been subject to change under the Award of Board
282 to consist of less than two trainmen and for 109 branch
line crews or 37 more than the 72 authorized by Board 282
to consist of less than two trainmen and for 183 yard crews
or 40 more than authorized by the Award of Board 282
consist of less than two helpers and thus CNW to be au-
thorized to employ less than two trainmen or yardmen for
@ total of 496 crews or 221 more than the 215 it was au-
thorized to work with under the Award of Board 282
less than two trainmen or yardmen. S.Tr. 28-32.
60. The proposal with respect to the number of crews
was made verbally, the remainder of the proposal is PX 26
which provided for the payment of an additional $4.00 to
be paid to yard foremen and $3.00 to yard helpers working
in a crew of less than two helpers and an additional four
cents per mile to be paid road conductors and an additional
three cents per mile to be paid road trainmen for each
mile over 100 which they worked in crews of less than two
traimmen. It also contained provisions for pay for em- :
ployees desiring to terminate their employment and for ;
protection of employment of those who continued in serv-
ice, ete., S.Tr. 29030, 34-36, 106. The CNW’s first proposal
was discussed in detail. S.Tr. 260.
61. On October 22, 1971 the union made its first proposal
DX 8 STr. 30-31, 261. It was for all road crews to con-
sist of a conductor and two trainmen and except for 28 ;
branch line locals and way freight, crews to consist of :
only one trainman and for all yard crews to consist of a
foreman and two helpers except 31 identified yard crews
or a total of 59 crews to consist of less than two road
trainmen or two yard helpers. S.Tr. 261-262. The reasons
the union made no proposal with respect to main line
crews were those mentioned in paragraph 56 of their find.
ings which were discussed with CNW. S.Tr. 264-275, 139.
145, 148-149.
62. On October 23, 1971 CNW made its second proposal.
It was for 211 road crews to consist of less than two train.
men and 171 yard crews to work with less than two help.
ers. PX 27, S.Tr. 30-31, 150.
63. On November 9, 1971 CNW made its third proposal
which was for 172 road crews to consist of less than two
trainmen and 152 yard crews to consist of less than two
helpers. PX 28, S.Tr. 37.
64. On November 11, 1971 the union verbally proposed
an agreement that, since CNW was actually using two
trainmen or yardmen on 35 of the 215 crews it had been
authorized to reduce under the Award of Board 282, 90
of the remaining 180 crews, to be selected by CNW, im-
mediately be restored to two road trainmen or yard help.
ers and negotiations continue with respect to the remain.
ing 90 for a period of time to be agreed upon, an agreement
similar to the Jacksonville agreement. CNW considered
it overnight and rejected it. S.Tr. 153-158, 275-279.
65. On November 12, 1971 CNW presented its fourth pro-
posal (PX 38, S.Tr. 38) which was for 142 road crews
and 135 yard crews or a total of 324 crews to consist of
less than two trainmen or yard helpers, PX 28, S.Tr. 38,
161.
66. After CNW’s proposal was discussed, the union ver-
bally proposed a variation of the ‘‘Jacksonville Agree-
ment’’ and was for half of the 215 crews CNW was an-
thorized, under the Award of Board 282, to work with less
- nos
than two trainmen or yardmen or 107 or 108 immediately
to be increased to two road trainmen or yard helpers and
for negotiations to continue for a period of time as to the
remaining 107 or 108 and thus added 17 more crews for
further negotiation. As the union saw it, with the 59 crews
it had offered to agree should be less than two road train-
men or yard helpers and the 32 crews CNW was manning
with two trainmen or yardmen although authorized to
man them with only one, the crews for further negotiation
would be much less. It was rejected by CNW. S.Tr. 161-
163, 280-282.
67. On November 15, 1971 CNW made its fifth proposal
(PX 30, S.Tr. 161-163) which was for 63 main line crews
and 51 branch line road crews or a total of 114 road crews
and 100 yard crews or a total of 214 crews consisting of
jess than two trainmen or two yard helpers. PX 31-32.
68. During the discussions of the proposals of the par-
ties between October 17, 1971 and November 15, 1971
there were further discussions of what money the CNW
would pay men working in crews of less than two train-
men and two yardmen. CNW’s offer of $4.00 for road
conductors and yard foremen and $3.00 for road trainmen
and yard helpers was in connection with its November 9,
1971 proposal for 436 crews to be less than two trainmen
and yardmen and after that the union’s General Chair-
man Maloney asked how much more CNW would pay to
which CNW replied it would depend on how many of the
436 crews the union would agree to consist of less than
two road trainmen or yard helpers, S.Tr. 168. The union’s
General Chairman Maloney suggested $15.00 each for the
road conductor or yard foreman and one trainman and one
yardman to which CNW agreed but then the union said
there were other considerations such as safety and the
subject was not pursued. That money was offered on the
condition that 436 jobs would be operated one and one.
S.Tr. 168-172, 254-258.
Ain ae hl dan ose inte A hee Bd deed De fh aa
a, ee wer
a
oxfiinas
69. On November 17, 1971 CNW made its proposal num-
ber six. It gave the union an option which basically was
for CNW to retain the authority it had obtained to employ
less than two trainmen in road service and less than two
helpers in yard service in 214 or 215 crews for the estab
lishment of a procedure for studying the crews thirty at
a time and if no agreement should be reached for arbitra.
tion of the dispute until an agreement should be reached
as to all or part of the crews or the size of the crews de.
termined by arbitration. The proposal was rejected by the
union on November 18, 1971. PX 31, S.Tr. 39-42, 283-288.
70. CNW by its refusal to meet and negotiate with
UTU’s predecessor BRT with respect to Section 6 notice
served by UTU’s predecessor in June, 1965 and its con-
duct during the pendency of and since the decision of the
Akron @ Barberton Belt and Atlantic Coast Line cases
demonstrated an intent not voluntarily to make an agree
ment with the union prior to September 9, 1971.
71. CNW first refused to meet until the Awards of Ar-
bitration Board No. 282 had expired. Such refusal was
held to violate the Railway Labor Act and Section 8 of the
Norris-LaGuardia Act in BRT v. Akron & Barberton Belt
R. Co., D. of Col., 385 F.2d 581, 599, 613 (1967). It then in-
sisted on only national negotiations. This insistence was
rejected in BRT v. Atlantic Coast Line R. Co., D. of Col.,
383 F.2d 225, 229 (1967).
Notwithstanding the Atlantic Coast Line case, CNW
maintained its position that individual agreements were
invalid because the crew consist dispute should have been
resolved by a single National agreement. (Tr. 415-418).
At the same time in its negotiations with the union, sub-
sequent to the decision of the Atlantic Coast Line case,
CNW has refused to consider or give any credence to
agreements made by other individual railroads with the
union even though CNW considers such as establishing a
— 35a —
“National Pattern’’. It also has refused to consider or
ive any weight to agreements affecting railroad opera-
tions in the same terminals with the CNW (S.Tr. 18) and,
instead, has insisted on negotiating with the union on &
crew by crew basis upon the basis of its studies of the
work of each CNW crew.
72. The union, since its predecessor BRT served its
notices on CNW and its predecessors in pursuance of Sec-
tion 6 of the Railway Labor Act, in its negotiations with
CNW since September 9, 1971 has negotiated with a gen-
uine intent and desire to obviate CNW’s objection to its
negotiations and voluntarily to reach an agreement with
CNW resolving the crew consist dispute arising from the
union’s aforementioned notice and the notice served by
CNW and its predecessors pursuant to Section 6 of the
Railway Labor Act in December, 1965.
73. In its Findings of Fact and Conclusions of Law of
August 13, 1971, the court found that in the prior negotia-
tions between the parties defendant union at all times (a)
refused to negotiate over the carrier’s proposals to re-
duce the size of mainline crews; (b) refused to negotiate
over the carrier’s proposals to settle the crew consist dis-
pute by an agreement that would involve the payment
of additional compensation to employees working on crews
of one conductor and one brakeman; and (c) refused to
negotiate any agreement that deviated substantially from
the pattern of agreements reached with other railroads re-
quiring approximately 95% of all crews to be operated
with a minimum of one conductor and two brakemen.
(Findings of Fact Nos. 11, 14, 15, 21; Conclusion of Law
No. 3).
74. After the Court’s decree of August 13, 1971, the
parties conducted a series of 32 negotiating conferences
between September 9 and November 17, 1971. (Testimony
of J. R. Wolfe, Tr. 16, 26, 43, 72-74, 93-94, 118-126).
NV EP nee oO
ara
ES INE OM IRON RS SN
FC aS SAY
=
75. The carrier’s proposals, contained in its original
bargaining notices under Section 6 of the Railway Labor
Act (45 U.S.C. § 156), generally called for unilateral] de.
termination by the carrier of the size of crews. During
the negotiating conferences referred to in Paragraph 74
above, the carrier made six successive offers to settle the
dispute. The substance of those offers was as follows:
(a) Of a total of 808 road and yard crews, 435
would be operated with a minimum of one conductor
and one brakeman, to whom would be paid an addi-
tional $4.00 and $3.00 per day, respectively.
(b) Of a total of 808 road and yard crews, 382
would be operated with a minimum of one conductor
and one brakeman.
(c) Of a total of 808 road and yard crews, 324
would be operated with a minimum of one conductor
and one brakeman.
(d) Of a total of 808 road and yard crews, 277
would be operated with a minimum of one conductor
and one brakeman.
(e) Of a total of 808 road and yard crews, 214
would be operated with a minimum of one conductor
and one brakeman.
(f) Of a total of 808 road and yard crews, all crews
would be operated with a minimum of one conductor
and two brakemen except for the 214 that the carrier
had identified in its last previous offer or the 215
presently authorized to operate with less than two
brakemen. The union could opt whether initially the
214 or the 215 crews should be manned with less than
two brakemen. Then, the union could secure negoti-
ation and, if that failed, binding arbitration, as to
whether the crews manned with less than two brake-
men should be manned with two brakemen. (Testi-
_—
— 37a —
mony of J. R. Wolfe, Tr. 21, 30-42, 60-61; testimony of
Francis D. Tuffley, Tr. 246-49, 259-61, 274-75, 279-80,
982-87 ).
76. The union’s proposals, contained in its original bar-
notices under Section 6 of the Railway Labor
Act, generally called for a minimum crew consist of one
conductor and two brakemen on all crews. During the
ies’ negotiations prior to the commencement of this
action, the union offered to settle the dispute by an agree-
ment requiring all but 48 out of 750 crews—93.6%—to
be operated with a minimum of one conductor and two
prakemen. During the parties’ negotiating conferences
referred to in Paragraph 74 above, the union made two
offers, the substances of which were as follows:
(a) All but 59 out of 808 crews—92.7%—would be
operated with a minimum of one conductor and two
brakemen.
(b) The parties would agree to the so-called ‘‘Jack-
sonville formula,’’ under which one-half of the exist-
ing, or authorized crews with a minimum of one con-
ductor and one brakeman would be augmented shortly
by an additional brakeman, with the balance of the
‘‘one-and-one’’? crews subject to negotiation for a
further specified period of time before the parties
would be free to engage in self-help if unable to ar-
rive at an accord. This formula, which was agreed
to by other railroads under strike or threat of strike,
has in the past resulted in final agreements under
which approximately 95% of all crews are to be op-
erated with a minimum of one conductor and two
brakemen. (Testimony of J. R. Wolfe, Tr. 20-22, 42-52,
65-66, 134-35, 153-62; testimony of Francis D. Tuffley,
Tr. 261-63, 272, 275-82, 308-09, 312-14).
77. In addition to the offers of the parties discussed in
Paragraphs 75 and 76 above, one of the union’s General
——
= “a
Chairmen on the carrier offered an agreement by which
435 out of 808 road and yard crews could be operated
by the carrier with a minimum of one conductor and one
brakeman, provided the carrier paid $15 per day to each
of the two men in these smaller crews. When the carrier
accepted that offer, the union’s national Vice President
nevertheless refused to permit any agreement to be made
on that basis. (Testimony of J. R. Wolfe, Tr. 61-63, 112-13,
116-17, 168-71, 191; testimony of Francis D. Tuffley, Tr,
256-57, 299-302). The Court finds neither side seriously
considered this offer. It was mere dickering between the
parties.
78. At no time during the negotiating conferences re.
ferred to in Paragraph 74 above did the union offer to
permit a single mainline crew to be operated with a mini-
mum of one conductor and one brakeman. (Testimony
of J. R. Wolfe, Tr. 47, 53-59, 173; testimony of Francis
D. Tuffley, Tr. 263-64, 302).
79. The defendant union consistently took the following
positions:
(a) that it would not agree to any proposal by the
carrier for reductions in the size of mainline road
crews;
(b) that it would not agree to any proposal by the
carrier which included additional compensation to
men working on crews of one conductor and one brake-
man; and
(c) that it would not agree to any proposal by the
carrier which deviated substantially from the pattern
of agreements reached with other railroads requiring
a minimum of one conductor and two brakemen on
approximately 95% of all crews. (Testimony of J. R.
Wolfe, Tr. 19-22, 43-55, 58-67, 109-13, 116-17, 134-35,
153-62, 168-71, 173-74, 191, 207-08; testimony of Fran-
cis D. Tuffley, Tr. 256-57, 275-82, 288-89, 301-02).
— 39a —
g0, At the conclusion of the negotiating conferences re-
ferred to in Paragraph 74 above, the carrier requested the
gnion to join with it in asking the National Mediation
Board to assign a mediator to resume mediation in this
dispute. The union refused. (Testimony of Francis D.
Tuffley, Tr. 287-88, 292).
81. This Court has taken evidence and made these ex-
tensive and detailed findings of fact for the reason that
this is a case of first impression, it being the first occa-
sion when the Supreme Court or any other Court has
decided that a District Court has the obligation of going
pehind the negotiations of a union and a railroad after
mediation efforts have been exhausted.
It is clear that in this case neither of the parties bar-
gained in good faith prior to September 9, 1971. Each
took its position and refused to change its position. There
was little communication between the parties. Each as-
sumed that the other was completely in error. Each as-
sumed that its position was correct. When the cause first
eame before the Court in 1969, this Court assumed that
the question of good faith bargaining was to be deter-
mined by the mediator assigned to the case, as the law
had always been construed up to that time. The Supreme
Court held that the parties were required to bargain in
good faith and that if either party charges that the other
has not done so that the trial court must hold a hearing
and make a finding of fact upon the question before either
party may resort to self-help in this case. The Supreme
Court thereupon returned the cause to this Court for such
a hearing. The parties proceeded to begin bargaining on
September 9, 1971 and continued until the present time.
99. In the original hearing before this Court each of
the parties had introduced evidence concerning the facts
about bargaining between the parties before and after
NMB withdrew from mediation. This Court, in accord-
— “ae
ance with the law as it was at that time found that the
defendant union has served the section six (6) notice m-
der the Railway Labor Act and had engaged in extensive
negotiations with the plaintiff railroad and that NMB had
terminated its services more than thirty (30) days prior
to the notice of defendant that the members, the employees
of the plaintiff, intended collectively to withdraw Peace-
fully from employment by plaintiff until their demands
under said section six (6) of the National Railway Labor
Act were acceded to.
After making that finding of fact this Court concluded
that the defendant union had in every way conformed to
all of the provisions of the National Railway Labor Act
that it was lawfully entitled to resort to self help and
withdraw its members peacefully from the employment of
the plaintiff railroad, or to put it more realistically to call
a strike.
The plaintiff railroad had charged that the defendant
union had not bargained in good faith as required by sec-
tion two (2) of the National Railway Labor Act. The
defendant union had denied the charges and answering
had charged that the plaintiff railroad had not bargained
in good faith under said section two (2) of the National
Railway Labor Act. The plaintiff railroad replied and
denied defendant union’s counter charge.
The Court took evidence from the parties on the charges
and counter charges of the parties.
This Court considered that the question of good faith
bargaining was for the National Mediation Board, and
that since it had terminated its services that this Court
was barred from granting an injunction upon that ques-
tion or any other under all of the facts before the Court,
and that therefore the Court was without jurisdiction to
issue an injunction against the defendant union prohibit-
ing it to strike pursuant to the Norris-LaGuardia Act, 29
_—
U.S.C. §101 et seq. Accordingly this Court dismissed
plaintiff’s complaint for want of jurisdiction.
83, When the Supreme Court heard the case it did not
have before it any of the record of the hearings before
this Court upon the issue of good faith bargaining. It
therefore reviewed only this Court’s order in which it de-
nied plaintiff railroad’s prayer for an injunction against
defendant union calling a strike against plaintiff railroad.
Upon receiving the mandate from the Supreme Court
ordering this Court to reinstate the complaint, the court
reinstated said complaint and called the case for further
proceedings.
84, The cause came on for hearing upon August 13,
1971. The Court called upon the plaintiff railroad to offer
evidence in support of its charge that defendant union
had not bargained in good faith. The plaintiff stated that
‘t had no evidence to present but chose to rely upon the
evidence adduced before this Court prior to December 11,
1969, the date upon which this Court had entered its fiscal
decree dismissing plaintiff railroad’s complaint. The Court
then called upon defendant union and gave it an oppor-
tunity to present evidence. The defendant union likewise
stated that it had no evidence to present but chose to rely
upon the record of the evidence produced prior to Decem-
ber 11, 1969. The Court then considered the record of
the testimony heard by it prior to December 11, 1969. Ar-
gument by both parties was heard by the Court.
85. The Court observed and now notes that the Supreme
Court laid down no guidelines as to how this Court should
proceed, but merely ordered a hearing as to whether there
had been good faith bargaining. This Court considered,
however, that the Supreme Court had impliedly ordered
this Court to order good faith bargaining, if it found that
such had not occurred, and that the Supreme Court did
=~ 9a...
not by implication order or suggest that if the Court found
that there had not been good faith bargaining that this
Court should grant a permanent injunction or order the
National Mediation Board to resume mediation. The Court
further concluded that the question of good faith bargain.
ing was not before the Supreme Court but only the ques.
tion as to whether plaintiff railroad had a right to raise
the issue of good faith bargaining in the original hearing
before this Court and to have a hearing thereon. On the
other hand this Court was and is fully aware from the
total record before it that neither of the parties at the
time of the original hearing before this Court had bar.
gained in good faith and that all of the issues between
them had not been fully explored.
86. Accordingly, this Court, after considering all of the
evidence and argument of counsel, did on August 13, 197]
enter a preliminary injunction herein restraining defend-
ant union from calling a work stoppage or strike by em-
ployees of plaintiff railroad and ordering good faith bar.
gaining to begin on or before September 9, 1971.
87. After a full hearing upon the bargaining between
the parties as in the findings herein set forth, the Court
finds that both parties have devoted much time and effort
to reach an agreement and that both parties have done so
in good faith. The Court finds that the plaintiff has made
more concessions in the negotiations than the defendant.
However, the Court does not find that to be the sole eri-
terion of good faith bargaining. The Court cannot find
that a party to a controversy is acting in bad faith on all
occasions merely because it refuses to change its position,
when its position may very well be 100 per cent correct in
the beginning, which this Court does not find to be the
case.
88. The Court finds that if good faith bargaining should
be held to require each party to modify its position until
avene and defeat the very statute involved herein and
enpower this Court to arbitrate the controversy. Only
Congress has the jurisdiction to grant this Court such
power.
9, The Court finds that the purpose of the mandate of
the Supreme Court to this Court in the instant case was
jurisdiction to restrain the defendant union from calling
a strike except pending appeal from the Court’s final de-
cree herein.
L This action arises under Section Two (2) First of
the Railway Labor Act (45 USC. § 152 First), and the
Court has jurisdiction of the action under 28 U.S.C. $§
1331 and 1337.
2 Section Two (2) First of the Railway Labor Act
(45 U.S.C. § 152 First) requires ‘all carriers, their officers,
agents, and employees to exert every reasonable effort
to make and maintain agreements concerning rates of
pay, rules, and working conditions, and to settle all dis-
putes . . . in order to avoid any interruption to commerce
3. This action arises out of and involves a labor dispute
within the meaning of the Norris-LaGuardia Act, 29 U.S.
C. Section 101, et seq.
4. Following remand by the Supreme Court, 91 S.Ct.
1731, 29 L.Kd.2d 187, this Court entered a Decree on Au-
gust 13, 1971, D.C., 330 F.Supp. 646, and since the entry
a
of the Decree the union has fully complied with its duties
under the Railway Labor Act; has demonstrated that i
has negotiated in good faith and is, therefore, entitles
to resort to self-help and to call a strike upon the giving
of reasonable notice.
5. The union has complied with Section Two (2) First
of the Railway Labor Act (45 U.S.C. § 152 First) in its
negotiations and has satisfied this Court’s Decree in the
following specific respects:
(a) the union has negotiated with the carrier over the
carrier 'S proposals to reduce the size of main line freight
employees working on crews of one conductor and one
brakeman;
plaintiff railroad;
(d) it did not constitute bad faith bargaining for the
defendant union to refuse to enter into any agreement with
erally similar to those of all other railroads with Gefend.
ant union concerning crew consist, even if the union did
not materially modify its original demand for such agree-
t.
6. The railroad failed to comply with its duty under
Section Two (2) First of the Railway Labor Act since the
inception of the crew consist dispute in 1965, It’s refusal
to meet or negotiate on the ground that the union’s notice
was was condemned by the Court of Appeals
which also squarely held that such conduct violated Sec-
tion 8 of the Norris-LaGuardia Act. BRT v. Akron & Bar-
berton Belt R. Co., D. of Col, 385 F.2d 581 (1967). Plain-
tiff railroad’s conduct since the refusal to bargain has now
been such as to purge it of its refusal to negotiate within
the meaning of Section 8 of the Norris-LeGuardia Act.
7. The conduct of the defendant union in its negotia-
tions on the crew consist issue since September 9, 1971 has
been one of seeking to voluntarily resolve the issues by
even though it has not changed its demands
materially. The conduct of the plaintiff railroad in its ne-
since September 9, 1971 has been in good faith, even
though it has not been willing to enter into an agreement
similar to that which the union has reached with all other
railroads.
8. The defendant union having demonstrated its good
faith and its compliance with the Decree of this Court,
the clean hands doctrine of Section 8 of the Norris-La-
Guardia Act is once again applicable.
9. The plaintiff railroad cannot be charged with bar-
gaining in bad faith solely because it refuses to enter into
an agreement with defendant union generally similar to the
union’s agreement with all other railroads if the railroad
in good faith believes that such an agreement is not
fair to it under all of the facts and circumstances, as the
plaintiff railroad maintains there exists in the instant case.
10. The Court has no statutory authority to remand the
controversy to the Mediation Board. That would be a use-
less gesture, for the Mediation Board has no statutory au-
thority to order good faith bargaining or to determine
whether either or both parties have bargained in good
faith pursuant to Section Two (2) First of the Railway
Labor Act. Only this Court has such authority.
—
11. No act of Congress has authorized this Court to
mediate or arbitrate a controversy between a railroad and
its employees acting through a union or otherwise. Neither
did the Supreme Court in its mandate authorize or em.
power this Court to so act.
12. The requirements of the Railway Labor Act having
been exhausted for more than thirty days with respect to
the dispute between plaintiff and defendant arising from
the notices served by defendant on plaintiff in July 1965
and by plaintiff on defendant in December 1965 with re.
spect to the number and craft of persons to be employed
by plaintiff in its train and yard crews, the Court does
not have jurisdiction under the provisions of Sections 4
and 7 of the Norris-LaGuardia Act, 29 U.S.C. §§104, 107,
to continue in force an injunction, either temporary or
permanent against the defendant union striking and pick-
eting plaintiff railroad as sought by plaintiff herein, ex-
cept pending appeal.
13. The Court had jurisdiction herein on August 13,
1971, and it properly entered a Decree granting the plain-
tiff railroad a preliminary injunction restraining the de-
fendant union from calling a strike by its members against
their employer, the plaintiff railroad.
14. The Court concludes that each of the parties are at
fault for the prolonged litigation prior to August 13, 1971
and that each should bear its own costs herein to this
date.
15. Plaintiff railroad’s complaint and its request for a
permanent injunction should be denied; defendant union’s
motion to dismiss plaintiff’s complaint should be allowed,
and an appropriate decree should be entered for such
purposes.
Decree
This cause came on for a further hearing after remand
by the Supreme Court of the United States and, in ac-
wa
— 47a —
cordance with this Court’s Decree of August 13, 1971, and
the Court having heard evidence on November 18 and
19, 1971, and having heard oral arguments by counsel for
both parties on those dates and having examined the pro-
posed findings of fact and conclusions of law submitted
by each party, and having this day made the foregoing
Findings of Fact and Conclusions of Law, the Court in
accordance therewith enters the following Decree:
It is ordered, adjudged and decreed that:
1. The defendant union in its negotiations with the
plaintiff carrier respecting the so-called crew consist dis-
pute arising out of the defendant’s notices of July 1965
and the plaintiff’s notices of December 1965 has, pursuant
to this Court’s Decree of August 13, 1971, complied with
the requirements of Section 2 First of the Railway Labor
Act (45 U.S.C. Section 152 First).
2. The plaintiff railroad has likewise bargained in good
faith since September 9, 1971 and has made numerous of-
fers to the union, in each instance ~ iucing its demands,
as set forth in the Court’s Findings .« Fact entered herein.
3. The union having complied with the Railway Labor
Act and with the August 13, 1971 Decree of this Court
(made pursuant to the opinion and mandate of the Su-
preme Court of the United States), now from this day
forward the Norris-LaGuardia Act (29 U.S.C. 101 et seq.)
is applicable herein. The Court is therefore divested of
jurisdiction to issue a permanent injunction restraining the
exercise of self-help by the union with respect to the crew
consist dispute. Plaintiff’s motion for a permanent injunc-
tion is denied.
PLAT ALT WHY Dee IAA IOS ORE ANS AEE ON PUES
4. The defendant union is now free to resort to self-help
and to call a strike of its members against their employer,
the plaintiff railroad. The Court hereby vacates its Order
of Injunction upon condition that the union may not ex-
—
—_ a—
ercise its right to strike until it has served 14 days notice
upon plaintiff railroad.
5. This court no longer having jurisdiction to grant fur-
ther relief to plaintiff railroad, now, therefore, the defend.
ant’s Motion to Dismiss the Complaint is allowed and the
Complaint herein is dismissed for want of jurisdiction,
6. Each party shall pay its own costs herein.
APPENDIX E
United States District Court
Northern District of Illinois
Eastern Division
No. 69 C 2401
Chicago & North Western Railway Company, a Corpora-
tion,
Plaintiff,
vs.
United Transportation Union, a Voluntary Association,
Defendant.
August 13, 1971
(330 F.Supp. 646)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Perry, District Judge.
This cause comes on for final judgment; and the Court,
having heard the evidence and considered the briefs and
arguments of counsel, hereby makes its findings of fact and
conclusions of law:
— 49a —
Findings of Fact
1. Plaintiff Chicago and North Western Railway Com-
pany is @ corporation engaged in the transportation by
rail of passengers and freight in interstate commerce and
a ‘carrier’? within the meaning of Section One (1) of the
Railway Labor Act (45 U.S.C. § 151).
9. The defendant United Transportation Union is a
voluntary unincorporated labor organization which is the
successor to the former Brotherhood of Railroad Train-
men and other labor unions, and represents under the Rail-
way Labor Act (45 U.S.C. § 151 et seq.) certain employees
of the carrier in road and yard service. The acts attributed
herein to the union include acts of the former Brother-
hood of Railroad Trainmen. (Complaint p. 2; Answer p. 2).
3. As a result of the Award of Arbitration Board No.
982, which board was established pursuant to Public Law
88-108 (77 Stat. 132 (1963)), the carrier was in 1965 re-
quired to operate substantially all its mainline freight
crews with a minimum crew consist of one conductor and
two brakemen, but was permitted to operate most of its
other road and yard crews with a minimum crew consist
of one conductor and one brakeman, subject to certain re-
quirements of providing sufficient work for specified exist-
ing employees represented by the union. (PX 1; J. R.
Wolfe Aff. pp. 5-11).
4. In July 1965 the union served upon the carrier under
Section 6 of the Railway Labor Act (45 U.S.C. § 156)
notices of proposed changes in the parties’ collective bar-
gaining agreements effective January 26, 1966 which :
would require a minimum crew consist of one conductor
and two brakemen on all the carriers’ crews in road and
yard service. These crew consist notices were substan-
tially identical to notices served by the union at various
Se eS Oe de ee ene 4
-
CR a IE eI? BTS ET NRG A ee
ho
RNa eS
cy
— “Se
times in 1965 and 1966 upon most of the other railroads
in the United States. (PX 9, 10; Tr. 89, 226-227).
5. The carrier took the position that the foregoing no-
tices of the union were premature because they were served
during the period of the Award of Arbitration Board No.
282, and for this reason the carrier declined to meet with
the union in conference to discuss these notices (Tr. 230;
J. R. Wolfe Aff. p. 11). Thereafter, on October 4, 1965,
these notices were docketed for mediation by the National
Mediation Board (J. R. Wolfe Aff. p. 12), but no mediator
was assigned to the dispute until May 15, 1969 (‘Tr. 272;
J. R. Wolfe Aff. p. 30).
6. In Brotherhood of R. R. Trainmen v. Akron & Barhber-
ton B. R. R., 128 US. App.D.C. 59, 385 F.2d 581, 596-598,
613-614 (1967), the Court of Appeals for the District of
Columbia Circuit held that the carrier breached its duty to
bargain under the Railway Labor Act by refusing to dis-
cuss the union’s notices in conference in 1965.
7. On December 24, 1965 the carrier served upon the
union notices under Section 6 of the Railway Labor Act
which proposed that the parties adopt a rule permitting
the carrier to determine the size of all its crews unilat-
erally. Such a rule would permit the carrier to reduce the
minimum size of mainline freight crews and certain other
crews from two brakemen to one and permit the carrier
to maintain the minimum size of other crews at a con-
ductor and one brakeman. The carrier’s crew consist no-
tices were substantially identical to notices served by most
of the other railroads in the United States at various times
in 1965 and 1966 upon the union. The carrier’s notices also
requested that the parties meet in conference to discuss all
their notices. (PX 12; J. E. Wolfe Aff. p. 19; Tr. 90, 102,
229).
8. The parties met in conference on January 18, 1966 at
which time the carrier’s notices were discussed, but the
=a
union declined to discuss its notices concurrently with
those of the carrier (Tr. 231, 385, 403-4; J. BR. Wolfe Aff.
pp. 13-14).
9, At the time of the service of its notices in December
of 1965 the carrier took the position that if the parties
were unable to resolve the crew consist dispute in con-
ference, the dispute should thereafter be negotiated to-
gether with the crew consist disputes then pending be-
tween the union and most of the other railroads in the
United States in what is commonly called ‘‘national han-
diittg’’ in the railroad industry. The union, however, has
consistently refused to engage in national handling of this
dispute, and instead has insisted upon negotiations with
individual railroads. (PX 12; J. E. Wolfe Aff. pp. 19, 38;
J. R. Wolfe Aff. pp. 13-14).
| 10. In the fall of 1966 the National Mediation Board
| terminated its mediatory services under Section 5 of the
Railway Labor Act (45 U.S.C. § 155) with respect to the
—
crew consist dispute between the union and three other
railroads. These railroads then commenced an action in
the United States District Court for the District of
Columbia to litigate the question of whether or not the
union could be required to negotiate the crew consist dis-
pute in national handling. Atlantic C. L. R. R. v. Brother-
hood of R. R. Trainmen, Civil Action No. 2908-66. In the
District Court the union took the position, and its officers
testified, that varying local conditions on each railroad
made it necessary that the matter of crew consist be
negotiated locally on each railroad, so that a local crew
consist rule suitable to particular conditions on each rail-
road could be established (J. E. Wolfe Aff. pp. 55-61).
The District Court ruled in favor of the railroads, holding
that national handling of the crew consist dispute was re-
quired. 262 F.Supp. 177 (D.D.C.1967). The Court of Ap-
peals for the District of Columbia Circuit reversed, hold-
ing that differing local conditions on each railroad made
a
— 52a —
a national crew consist rule ‘‘wholly unrealistic.” 497
U.S.App.D.C. 298, 383 F.2d 225, 229 (1967). The Supreme
Court denied certiorari in January of 1968 (389 US.
1047, 88 S.Ct. 790, 19 L.Ed.2d 839).
11. In March of 1968 the carrier invited the union to
discuss as a means of compromising the dispute an agree-
ment that would involve the payment of additiona] com-
pensation to certain employees of the carrier’s crews who
were represented by the union—those employees who
would work upon a crew having one, rather than two,
brakemen. The union refused to enter into negotiations
with respect to this proposal. The union’s negotiators
were barred by the union’s national convention from mak-
ing any agreement on crew consist such as the foregoing
one proposed by the carrier. (PX 13-14; J. R. Wolfe Aff.
pp. 15-17; Tr. 235-6, 408).
12. The parties held conferences at which defendant's
crew consist notices were discussed in March, May, June,
July, and August of 1968 (J. R. Wolfe Aff. pp. 17-21; Tr,
239-48). These meetings were recessed subject to the
call of the union for further meetings (Tr. 254; J. R.
Wolfe Aff. p. 21). The parties agreed in October of 1968
and in January of 1969 to defer further meetings to dis-
cuss the Union’s notices (J. R. Wolfe Aff. p. 21).
13. The parties resumed conferences in April of 1969,
and the union’s notices were discussed in conferences
during April and May of 1969 (Tr. 255-71; J. R. Wolfe
Aff. pp. 21-31). These notices were also discussed by the
parties at mediation sessions held under the auspices of
the National Mediation Board in June and July of 1969
(Tr. 272-309; J. R. Wolfe Aff. pp. 32-37). -
14, Throughout the foregoing conferences and media-
tion sessions the union at all times took the position that
it would not negotiate with the carrier upon the latter’s
proposals for reductions in the size of mainline freight
— 53a —
crews from two brakemen to one. The union asserted that
its position was based upon the fact that the other rail-
roads which had settled the crew consist dispute with the
union had not obtained any reductions in the size of main-
line freight crews. As a result of the union’s position the
parties did not negotiate on the subject of the carrier’s
proposals to reduce the size of mainline freight crews
(J. R. Wolfe Aff. pp. 93-24, 35-36, 37; Tr. 259-60, 267,
320-30).
15. ‘‘{A]t all times the defendant has taken the position
that the only agreement that could be reached was and is
that reached by nearly all of the railroads in the United
States with defendant, which requires a restoration of ap-
proximately 95% of all of the jobs in question,’’ that is, a
minimum crew consist of one conductor and two brakemen
on approximately 95% of all crews (Finding No. 14 of the
Court’s Order of December 11, 1969; See also J. R. Wolfe
Aff. pp. 19-36; Tr. 243-315, 345, 371-372).
16. The union did not at any time in the parties’ confer-
ences in 1968 and 1969 contend that full-fledged bargain-
ing had been impaired by the carrier’s refusal to discuss
the union’s notices in the summer of 1965 (Tr. 315).
17. On October 16, 1969 the National Mediation Board
terminated its services in the dispute over the parties’
crew consist notices, and the President has not appointed
an Emergency Board to investigate the dispute over these
notices (J. R. Wolfe Aff. p. 37; Tr. 312).
18. On November 19, 1969 the carrier commenced this
action for declaratory and injunctive relief upon the
ground that the union by its bargaining conduct had vio-
lated Section 2 First of the Railway Labor Act (45 U.S.C.
4152 First) and that consequently the union had not ex-
hausted the required procedures of the Railway Labor Act
with respect to the dispute over the parties notices (Com-
plaint pp. 4-5). A decision of this Court of December 11,
a
1969 dismissing the complaint for lack of jurisdiction was
affirmed by the Court of Appeals for the Seventh Circuit
on March 6, 1970, Chicago & North Western Ry. Co. y.
United Transportation Union, 422 F.2d 979, but reversed
by the Supreme Court on June 1, 1971, 402 U.S. 570, 91
S.Ct. 1731, 29 L.Ed.2d 187.
19. During the pendency of this action since November
19, 1969, there has been no bargaining or attempt to nego.
tiate between the parties even though the parties have had
full knowledge since June 4, 1971, that the Supreme Court
had decided that pursuant to Section Two (2) First of the
Railway Labor Act there must be bona fide bargaining
and negotiation by the parties as a pre-requisite or condi-
tion precedent to the use of self-help in the form of a
strike or lock out.
20. The Supreme Court, having in mind the over-riding
public interest in a controversy between a railway and its
employees, by its decision in which this cause was re-
manded to this Court, has now imposed upon the District
Courts the duty of holding a hearing and taking evidence
to determine whether there has been good faith bargain.
ing by either or both of the parties. Once the issue of good
faith bargaining has been raised, the Supreme Court has
in the said decision specifically directed that the District
Court hold such hearings, take evidence, and make a de-
termination on the question of good faith bargaining,
pursuant to Section Two (2) First of the Railway Labor
Act, upon the charge by either party that said Section
Two (2) First of the Railway Labor Act has not been
faithfully carried out. The Supreme Court has implicitly
empowered the District Courts to hold such a hearing if
the public welfare requires it, even on the Court’s own
motion. The requirement for good faith bargaining is a
dual obligation. A railroad cannot seek equitable relief
on its own behalf without doing equity, but the Court can
— 55a —
order equitable relief, and order that matters remain status
quo for the public welfare until there has been good faith
bargaining.
91, At the present time the Court finds that neither of
the parties herein has bargained in good faith, and there-
fore finds no difference in the lack of genuine bargaining
on the part of either party. This Court simply finds that
under the recent decision of the Supreme Court, where this
cause was remanded to this Court, that the Supreme Court
has held that the public welfare requires that this Court
order the parties to proceed to negotiate and engage in
conferences in a genuine effort to settle the issues herein.
The Court further finds that until such time as the parties
do engage in good faith bargaining pursuant to the pro-
visions of Section Two (2) First of the Railway Labor
Act this Court should grant an injunction restraining the
use of self-help by either of the parties until the defendant
has shown that it is bargaining in good faith and has
made every reasonable effort to settle with the plaintiff.
99. The Court also finds that the plaintiff cannot refuse
to engage in genuine bargaining and thereby defeat the
right of the defendant to resort to self-help.
93. Unless enjoined by this Court the union will strike
the carrier to compel it to accede to the union’s crew con-
sist demands. The effect of such a strike would be to
bring about a virtual halt to the carrier’s operations and
to cause grave and irreparable harm to the carrier and to
the public.
Conclusions of Law
1. This action arises under Section Two (2) First of the
Railway Labor Act (45 U.S.C. § 152 First), and the Court
has jurisdiction of the action under 28 U.S.C. §§ 1331 and
1337.
2. Section Two (2) First of the Railway Labor Act (45
U.S.C. § 152 First) requires both the carrier and the union
MS OLE OE I TT
Spree ort
to “‘exert every reasonable effort to make and maintain
agreements concerning rates of pay, rules, and working
conditions, and to settle all disputes * * * in order to avoid
any interruption to commerce. * * *’’
3. The union in the negotiations with the carrier oyer
the parties’ crew consist notices has violated Section 9
First of the Railway Labor Act (45 U.S.C. 4152 First)
in the following respects:
(a) The union has refused to enter into negotiations
with the carrier over the carrier’s proposals to reduce the
size of mainline freight crews;
(b) The union has refused to permit its negotiators to
engage in negotiations with the carrier over the carrier’s
proposals to settle the crew consist dispute by providing
additional compensation to certain employees working on
crews of one conductor and one brakeman; and
(c) Although the union successfully argued to the fed-
eral courts of the District of Columbia that local negotia-
tions upon local considerations were essential and made
a national crew consist rule ‘‘wholly unrealistic’’, Brother-
hood of R. R. Trainmen v. Atlantic C. L. R. R., 127 US.
App.D.C. 298, 383 F.2d 225, 229 (1967), the union has nev-
ertheless, by engaging in ‘‘take-it-or-leave-it’’ bargaining,
at ail times insisted that the only crew consist agreement
that could be reached with this carrier is that reached by
nearly all the other railroads in the United States with
the union.
4. The union has not exhausted all the required major
disputes procedures of the Railway Labor Act and will not
be free to resort to self-help to influence the carrier to
accede to the union’s crew consist demands unless and
until the union has negotiated with the carrier in comp/i-
ance with Section 2 First of the Act.
5. Since the union’s failure to engage in the negotiations
required by Section 2 First of the Act occurred during the
ge — ete Sov ra > _ °
_——— 3 Dit RSS 28S ee ast, om
— 57a —
period during which the National Mediation Board was
attempting to comply with its statutory obligation to bring
about a peaceful settlement (45 U.S.C. § 155), there has
not been as to this dispute the sort of mediation contem-
plated by the Act.
§. Since the union’s failure to engage in the negotiations
required by Section 2 First of the Act continued through-
out the status quo period prescribed by Section 5 of the
Act (45 U.S.C: § 155) after the National Mediation Board :
surrendered its jurisdiction, there has not been as to this f
dispute the sort of negotiations contemplated by the Act
during that stetus quo period.
7. Therefore, the union has not exhausted the required
major disputes procedures of the Railway Labor Act and
gill not be free to resort to self-help with respect to this
dispute until it has negotiated with the carrier in the fa-
shion prescribed by Section 2 First of the Act both dur-
ing mediation sessions conducted under the auspices of
the National Mediation Board and for such further status
quo periods as are provided by Sections 5 and 10 of the
Act (45 U.S.C. $§ 155, 160).
8. An injunction against any strike by the union over
the crew consist dispute with the carrier should issue as
the only practical, effective means of enforcing the duty
to exert every reasonable effort to make and maintain
agreements. Such an injunction is not barred by Sections
4 or 8 of the Norris-LaGuardia Act (29 U.S.C. $§ 104,
108).
9, Such injunction should issue until further order of
the Court in order to give the defendant union an oppor-
tunity to negotiate and bargain in good faith.
10. The Court has no statutory authority to remand the
controversy to the Mediation Board. That would be a
useless gesture, for the Mediation Board has no statutory
authority to order good faith bargaining or to determine
6 LM MSRM OED PIPETTE NEAR IER BOR
ry eT PTE e
” Sa TR
——— ee eT ee er ee
Ge ART a LOL aes RED ATE ER
— 58a —
whether either or both parties have bargained in good
faith pursuant to Section Two (2) First of the Railway
Labor Act. Only this Court has such authority.
11. The parties are duty bound and required as a con-
dition precedent to negotiate and bargain in good faith
with each other in order to reach an agreement and a get.
tlement of the controversy over crew consist both before
and after the controversy has been submitted for media-
tion and to continue to do so after mediation services have
been terminated. Since the Court has found that neither
of the parties have done so up until this time, then neither
may resort to self-help until that is done.
12. Inasmuch as the parties have not bargained and ne
gotiated as required by the Supreme Court in its opinion
in this case, this Court has the authority to and it is duty
bound, because of certain irreparable damage to the pub-
lic, to grant an injunction against a strike by the defend-
ant union, even though the plaintiff does not come into the
Court with clean hands.
13. The clean hands equity doctrine would apply here ex.
cept for the grave and irreparable damages that the pub-
lic, composed of innocent bystanders, would suffer.
14. The Court has jurisdiction and it is the Court’s duty
to order and direct the parties herein to negotiate and
engage in collective bargaining conferences in an attempt
to reach an agreement concerning the controversy in ques-
tion.
15. When and if the defendant shows good faith in
negotiation and bargaining, whether the plaintiff does so or
not, this Court will be by law required to vacate any order
of injunction and permit the defendant to resort to self-
help, that is to peacefully withdraw its members from em-
ployment by the plaintiff, or in more prosaic language to
strike against the plaintiff. This, however, should not be
done until notice has been given to the plaintiff and to the
— 59a —
public. It will be the duty of this Court to fix a proper
period of notice to be given to the plaintiff and to the pub-
ie in the event of the vacating of the Court’s order
granting an injunction against a strike.
Decree
This cause comes on upon remand from the Supreme
Court of the United States and the Court having now car-
ried out said mandate and having this day made findings
of fact and conclusions of law herein does simultaneously
herewith enter its decree in the following manner.
It is, therefore, ordered, adjudged, and decreed that:
1. The defendant union, throughout its negotiations with
the plaintiff carrier respecting the so-called crew consist
dispute arising out of the defendant’s notices of July, 1965
and the plaintiff’s notices of December, 1965, did not com-
ply with the requirements of Section Two (2) First of the
Railway Labor Act (45 U.S.C. $152 First).
9. Because of this breach by the defendant union of its
obligations under Section Two (2) First of the Railway
Labor Act, there has not been the type of mediation re-
quired by Section Five (5) of the Railway Labor Act (45
U.S.C. §155) nor the type of good faith negotiations re-
quired by Section Two (2) First during the status quo
period prescribed by Section Five (5) following the termi-
nation of mediation.
3. The defendant union is, therefore, not free to exercise
self-help with respect to the dispute arising out of the
parties notices until the procedures required by Section
Two (2) First of the Railway Labor Act have been carried
out.
4. Until this Court has held a hearing and has found
that the procedures required by Section Two (2) First of
the Railway Labor Act have been carried out, the defend-
RL 2) aE
abe
ARE He Se SO M248 YaBB SEN AN,
mag
ant union, its divisions, locals, officers, agents, em
members, and all persons acting in concert with them, are
hereby enjoined from authorizing or engaging in any strike
against or picketing of the plaintiff carrier in connection
with the aforesaid crew consist dispute.
5. The parties hereto shall forthwith begin negotiating
and bargaining conferences in an attempt to reach an
agreement over the crew consist controversy that exists
between them.
6. Hearing on whether the parties or either of them have
complied with the provisions of Section Two (2) First of
the Railway Labor Act is hereby set for September 24, 197]
at 2 P.M.
7. The matter of costs is reserved for later determina.
tion.
APPENDIX F
Supreme Court of the United States
No. 189, October Term 1970
Chicago & North Western Railway Co.,
Petitioner,
v.
United Transportation Union,
Respondent.
OPINION
June 1, 1971
(402 U.S. 570)
Mr. Justice Harlan delivered the opinion of the Court.
The Chicago and North Western Railway Co., peti-
tioner in this action, brought suit i
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