# Petition for Writ of Certiorari — United Transportation Union v. Chicago & North Western Railway Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1700%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 410 U.S. 917 ## Text [E COPY... 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 a aad ee eT tee ee De Aa ee ol Tee asm RRL RR te SRD sag 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) | | ; } ¢ % 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 # ¥ GRE SOY Ay ROT onan SEE TE Srey Se ee a ant tn ee Re a ee | 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 > z . é « ® 4 £ ‘ = é a — 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 ¢ ; eA Pegaso EL EE AL I I = = 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 > | FE I POE Mr Nel” Cees er eee a = 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 a a ee ee a eR Be ata iis 4 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 ; $ ¥ g 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 | ee 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 PARNER Pe SOT IAM, PRY eS A spat Petes PEMEI AE EOE IN IRE eRe ATC LD hse 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 eam [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1700%3A1. Public record. Not legal advice.