Appendix — Brotherhood of Railway & Steamship Clerks v. Florida East Coast Railway Co.
Supreme Court brief1966
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IN THE
United States Court of Appeals
For tue Firts Crmovir
No. 22,134
Frorma East Coast Rarway Company, Appellant-Appellee
Vv.
Untrep States or America, Appellee-Appellant
(And Reverse Title)
Appeals from the United States District Court for
the Middle District of Florida
APPENDIX
Volume II
(Pages 480 to 898)
Press or Byron S. ApamMs, WasHrIncron, D. C.
SRP ET a SAR HRI Mp ys RNC |
somaya
een aire ea RatR eT eT Re a on py spicata
INDEX
Voiume I
Page
EE Cicvavancetusvasevasedeceneseencteaseusd 2
CE cy cob eensesteeusaerereevetentsseneewas 12
ith Gnas endneie es ugha ae wih imimeaian 12
ET tous Ue heis baennae Kae kevensussheenok on 13
Motion of the United States of America for Prelim-
I, Sob cb ROsadberek bavkebeddcunees 13
Memorandum in Support of Motion of the United
States of America for Preliminary Injunction .... 16
Affidavit of Eugene C. Thompson ................... 37
SSNS - ccdbedberhedd ihe Cecdced vie cceeusrdedc cecaves 43
Motion to Intervene as Additional Plaintiffs ......... 43
Complaint of Intervenors .............0cce cece eeees 45
RL ts btn bentp 4 sei wretedenditscatede 49
Motion to Stay Proceedings ............0.ceeeeeeees 50
Motion to Continue Hearing ..............02..eesees 56
Notice to Take Oral Deposition ..................... 58
DL crea ebedy kicadeonehnwesen eed bavi cnedenves 59
Amended Notice to Take Oral Depositions ........... 60
Opposition to Plaintiff’s Motion to Quash Notice to
Se I fieavcevecsancceavetenenns
cr ec ecaboncinensbiemans 65
Deposition of Eugene C. Thompson ................. 66
SROOEE seis ii biccareeee bse te igtebis edb eerbeaeeds 96
Motion to Dismiss Complaint ...................0000- 108
Memorandum in Support of Motion to Dismiss Com-
DE Sealed vennseccsvey canted sks caunaedivnuies 108
—
ii Index Continued
Page
Motion to Dismiss Complaint of Intervenors and to
Deny Motion to Intervene ..........-...0+-eeees 124
Memorandum in Support of Motion to Dismiss Com-
plaint of Intervenors and to Deny Motion to In-
ES SeechGwcpaGedeee us 44 e4000t beens s oop e¥ne 125
Motion to Compel Answer .......---.cceeee eee eeeees 130
Motion for Production of Documents ................ 136
Exhibit A—Affidavit of R. W. Wyckoff ............ 138
Motion to Quash Subpoenas Duces Tecum ........... 139
Supplemental Memorandum for the United States .... 141
Defendant’s Proposed Injunction .................4. 163
Intervenors’ Proposed Findings of Fact and Conclu-
I IN ire on oo eaR Eee e aera esters oeedevess 165
Intervenors’ Proposed Preliminary Injunction ....... 177
Findings of Fact and Conclusions of Law.... ....... 180
Preliminary Injunction of October 30, 1964 .......... 189
Return on Service on Writ ............ ccc eeeeeeeees 192
Motion for Stay of Portion of Order ................ 192
Affidavit of W. L. Thornton, President............. 195
Affidavit of Raymond W. Wyckoff, Vice President
and Director of Personnel ...............0eeee05 203
Affidavit of H. E. Hales, General Superintendent
SE UE cv ace eeneeeevecececdrévnrdueerne 211
Affidavit of H. E. Webb, Superintendent Communi-
I ND bit coivecccvecctesedrecvessceee 214
Application of Defendant for Approval of Employ-
kg ee eee ee ree rey reer 216
Notice of Hearing on Motion for Stay of Portion of
Ee cise s cabeinne cased eecknetyaterens 221
Order of November 12, 1964 .............ceeeceeeees 222
Order of November 19, 1964 ..........c0-eeeeeceeees 223
| ;
Index Continued iii
Page
Order of December 3, 1964 ............ ccc cece cee ee 223
Notice of Appeal to Court of Appeals Under Ruiz
73(b), 28 U.S.C. §§ 1291, 1292, 1651, and 29 U.S.C.
PPM NEWs Ces henGussearbebrertesves cévbentins 225
Designation of Record for Preliminary Hearing in the
Eb thew siiwien eda widlesobs he adeeb akin 226
EE Sls cc ecus dabheredeh cord cece ceehus cu 228
General Power of Attorney ..................0000 229
Notice of Appeal to Court of Appeals Under Rule 73(b) 234
Transcript of Proceedings of May 26, 1964 ........... 235
Witnesses:
Raymond W. Wyckoff ..:..............ceeecees 275
Winfred L. Thornton ..... he eeeeeHesevivesevers 376
ks isutkcedenddubundaastauaraee 442
ST vide kdedcidéondeesodssedens 461
IE cb ve coun ki G00 Cwiks os eweuleneuy 465
kL EP FESYPRSELE PT ere rr rr reer eee ee 476
Voitume IT
EE ducua suv unraw dee muins « ceed sis 480
DRE nines scbaeuNeNadecdecus aceecrens 484
aU cayt iad cpdeanbansdesskocddece 488
Pr eee 491
RE SE Lae tS PO meet RO Ie 495
IE 6 5kn Sv auiwendecudeeseneubusicwens 496
1) SERENE Eee or PROM Selle OG: 498
SE ea eRe Mere LE NO 499
NE Sis oid pecdad yl blevedubeceuas 503
DU ie. o a rie Cold da ee 524
ae
iv Index Continued
Page
in Bie SEED .cnacdcsoncececcbies vnaee iseevdvaes 532
Fe ee SEE Satie se dae SaKs0d Hee ewsebibordene 540
Argument by Mr. Shapiro .............-....seeeeees 549
Argument by Mr. Devaney ................ sa sdebeen 563
Transcript of Proceedings—Applica‘ion of Defendant
pproval of Employment Practices, November
30, December 1 and 2, 1964 ..................... 593
Witnesses:
ENE Suahidccckcudesescettenceees 628
I TIES dv dbecesccccvededesecence 647
PE ey I cto di ntecdcetoeéecescesees 654
Bis Tg EG bak se co bedeckeccesceeses 689
Raymond W. Wyckoff ........... peéannenes 705
Raymond W. Wyckoff ...............0cee0. 733
Was MEE SUbCN eed eidsoseesceveexewes 758
Raymond W. Wyckoff .................000- 794
Raymond W. Wyckoff ...............20000: 800
Se ee EE wadaecabvoanectocdvessseeecne 805
Raymond W. Wyckoff ............ccceceeee 829
Argument by Mr. Devaney ..............cceeeeeeees 849
I ee ED ccd cedctvdenckasteccopoces 868
Argument by Mr. Milledge ................-eeeeees 879
Original Print
Proceedings in the United States Court of Appeals
for the Fifth Circuit —_ m ; 903 903
Minute entry of argument and subsniasion (omitted
in printing) —_~ és espe eren = Nese Seat 903 903
I: SPUN MN sian scat peesaocticecianmehcchcabeaat 904 903
Judgment —... wntaructiie 916 911
Clerk’s certificate (omiined in a printing) 917 912
Orders extending time to file petition for writ t of
RS Geeta ccaitctihiete ain tinksldasndiainccenicsone. 918 912
Orders allowing covtiovari ase 920 913
IN THE
United States Court of Appeals
For THe Firtrx Crecuit
No. 22,134
Fiorma East Coast Rattway Company, Appellant-Appellee
v.
Unirep States or Amerioa, Appellee-Appellant
(And Reverse Title)
Appeals from the United States District Court for
the Middle District of Florida
APPENDIX
Ree en ae
480
Mr. Devaney: Mr. Cooke.
R. M. Cooke,
having been produced and first duly sworn as a witness
on behalf of the defendants, testified as follows:
Direct Examination
By Mr. Devaney:
Q. Will you state for the record your name, please. A.
R. M. Cooke.
Q. And you are an official with the Carmen’s Union?
A. I’m General Chairman, yes, sir.
Q. And these documents that have been marked as De-
fendants’ J and K, those were furnished by you, were
they? A. Yes, sir.
(). Now, have there been any disciplinary actions taken
by the Carmen’s Union that you are aware of, Mr.
447 Cooket A. None that have been called to my atten-
tion, no, sir.
Q. Now, are these copies extra copies or do you wish
them returned to you—the Constitution and the By-Laws?
A. I would like to have them returned, yes, sir. They are
my office copies.
Q. Mr. Cooke, I hand you this and ask if you are familiar
with that letter? A. Yes, sir. This is a letter that I wrote,
a copy of it.
Q. A copy of it? A. Yes, sir.
(Mr. Devaney tendering instrument to Mr. Milledge)
Mr. Devaney: Mark that as L, please.
(Thereupon, the referenced document was received and
filed in evidence as Defendants’ Exhibit L.)
By Mr. Devaney:
Q. Now, this document which has been marked as De-
fendants’ L, Mr. Cooke, is a letter addressed to Mr. Wyck-
off. It is dated February 8, and the last paragraph says:
— a
SR
481
‘Please be advised that the employes that I represent
have withdrawn from the service of the Florida East
448 Coast Railway Company on a legal strike and that
such employes are not subject to call for service.’’
Now, what was intended by that last sentence of not
being subject to call for service? A. Well, simply that
several of my members were complaining that the local
supervision had cailed them by telephone and requested
that they return to service, and had even intimated in a
couple instances that the seniority of the individual would
be terminated if they didn’t return to service.
Q. Did you later receive a letter from Mr. Wyckoff on
this point? A. Yes, sir. I recall that I did.
Q. Is this a copy of the letter that he sent you? (Indicat-
ing) A. Yes, sir, I believe that’s the letter.
Q. Now, once—I mean, he made it very plain, did he not,
in this letter that these people were not being forced to—
A. Yes, sir, he did.
Q. —come back to work? A. Yes, sir.
449 Mr. Devaney: I haven’t had this one marked.
(Tendering to Mr. Sharpiro)
Mr. Milledge: We all agree putting that in as part of
the same exhibit, if that’s all right.
Mr. Devaney: Just attach it as a second page to L.
The Court: ToL?
Mr. Devaney: L.
By Mr. Devaney:
Q. Do you—is this the only position you hold, Mr. Cooke?
In the Union? A. No, sir. I’m also President of System
Federation No. 69.
Q. And as I recall, that is the organization of the six
shop crafts? A. That’s correct, yes, sir.
Q. But this letter, just for the record now, of February
8, you signed as General Chairman of the Brotherhood of
Railway Carmen. You weren’t signing this as System
482 |
Federation 69? A. That’s correct. I signed it as General
Chairman.
450 Q. Do you know whether the other members of the
System Federation 69 signed a similar or identical
letter to your letter of February 8? A. I could not say for
sure; I think that some of them did but I am not sure of
that.
Q. Was there any official direction by you, as President
of System Federation 69, that such a letter be sent? A. No,
cir. not from me; no, sir.
(). Was there any action or consideration by System
Federation 69 of the advertising for bids on jobs by the
Florida East Coast? A. None, that I can recall; no, sir.
Mr. Devaney: No further questions, Your Honor.
Mr. Shapiro: No questions, Your Honor.
The Court: Suppose we break off for a few minutes here.
Mr. Devaney: Very good.
AOU ARE A EAE iin MES
( Witness excused)
The Court: Maybe you can use this time to see where
you stand.
(Short recess)
451 R. M. Cooke
was recalled to the stand and further testified as follows:
Further Direct Examination:
The Court: I thought we were through with Mr. Cooke.
Mr. Devaney: I neglected to ask him one question.
The Court: All right, sir. Go ahead.
By Mr. Devaney:
Q. Mr. Cooke, was John Katsikos a member of your
union? <A. Yes, sir.
Q. And was he a local officer of the union? A. Recording
Secretary, I believe ; yes, sir.
>"
483
Q. And this was the Miami Lodge? A. Lodge 555,
Miami.
Q. And was Mr. Katsikos one of the individuals indict-
ed—
Mr. Milledge: Objection. I move the question be striken.
The Court: One of the individuals, what?
452 Mr. Devaney: ‘adicted for bombing or attempt-
ed bombing of an F.E.C. bridge or train?
Mr. Milledge: I object to the question and move the
question be striken from the record.
The Court: What is the purpose of this?
Mr. Devaney: Well, as we said this morning, Your
Honor, I think that there is a relationship here between the
sabotage that has occurred on the railroad and the strike
itself.
Now, the Government has premised this action on the
theory, or has premised its argument on the theory that
the Florida East Coast has greatly benefitted from certain
rules that have been placed into effect.
The Florida East Coast has been subjected to very
serious loss of property and of life by these threatened
acts of sabotage. And I merely—
Mr. Milledge: Life?
Mr. Devaney: —asked whether—threatened loss
453 loss of life; no life, fortunately, has been lost and
no serious injuries have occurred as a result of these
bombings. But the fact that you blow up a train while in
movement is a very grave threat and one—
The Court: The fact that you have been indicted doesn’t
prove you did it either.
Mr. Devaney: No, I agree, Your Honor. I quite agree.
The Court: And if Mr. Katsikos did it, I don’t see how
this plaintiff in intervention, this Carmen’s Union, is re-
sponsible for everything that Mr. Katsikos or any other
union member does.
Mr. Devaney: No, that’s quite correct, Your Honor.
The Court: I just don’t see the relevancy of this. I’m
484
going to strike the question. I’ll let him put his answer in.
I assume that he is—that the answer will be yes; is that
right?
The Witness: Yes, sir, he is.
454 The Court: All right. The question and answer
are striken. You have them in the record as a prof-
fer.
Mr. Devaney: Very fine.
No further questions.
(Witness excused)
Mr. Devaney: At this time, Mr. C. J. Robbins.
C. J. Robbins,
having been produced and first duly sworn as a witness
on behalf of the defendants, testified as follows:
Direct Examination
By Mr. Devaney:
Q. Would you state your name, please. A. Charles J.
Robbins.
Q. And are you an official with one of the labor organiza-
tions?) A. General Chairman of the American Train Dis-
patchers Association.
Q. And you were served with a subpoena duces tecum,
were you not? Including the item, the Constitution and the
By-Laws of your organization? A. That’s right, sir.
Q. Now, that is one of the—do you have that
455 with younow? A. No. I brought it in.
Mr. Devaney: This is one that I had not received,
Your Honor. I wonder—
Mr. Milledge: I think we had it. I thought we had given
it to you.
By Mr. Devaney:
Q. While Mr. Milledge is looking, you are also not one
of the so-called eleven cooperating non-operating organiza-
485
tions, are you? A. That’s right. The American Train Dis-
patchers are not on strike.
Q. Have you been working since January 23rd, 1963?
A. No, sir. We have been honoring the picket line.
The Court: Keep your voice up please, Mr. Robbins,
and speak a little louder and more distinctly.
Mr. Milledge: He can probably tell us about the pro-
visions.
By Mr. Devaney:
Q. Were you here, Mr. Robbins, when Mr. DuPont testi-
fied at some length with regard to the various pro-
456 visions of the IBEW Constitution? A. Yes, sir, I
was,
Q. And you are familiar with the stipulation that Mr.
Milledge proposed for the eleven cooperating unions.
Now, you not being one of those, that stipulation binds
you in no way, but does your Constitution have similar
provision with respect to members working during the
period of the strike? A. Probably. I have an older copy
in my files over here, if you would like to look at that one.
I have it.
Q. Fine. A. (Witness leaving stand, obtaining instru-
ment and returning to stand)
Mr. Milledge: Here it is, Mr. Robbins. I did locate it.
(Handing instrument to Mr. Devaney:)
Mr. Devaney: Would you mark this one also?
The Clerk: Defendants’ M.
(The referenced document was received and filed in evi-
dence as Defendants’ Exhibit M.)
By Mr. Devaney:
Q. Now, you say that there only probably similar
457 provisions; or are you reasonably certain, or do you
wish to look at it? Do you wish to look at it and
make certain? A. I would like to look at it and make
certain.
a
486
Q. All right. A. Now, the question? Would you read
the question, please?
Q. The question—you can read it—what | had asked
earlier was whether, after having heard the testimony of
Mr. DuPont in which he reviewed various provisions of the
IBEW Constitution which related to the penalty against a
member who worked for an employer during the course of
an authorized strike, and then we examined the various
provisions of membership and obligation of membership,
et cetera, and I asked if—and Mr. Milledge stated on behalf
of the eleven cooperating unions that they had similar
provisions to those contained in the IBEW agreement.
Now, what I asked you is whether you had stated that
you probably had such similar provisions. Then I asked—
A. I now say that they do have such similar provisions.
Q. That they do have? A. Yes.
Q. All right, fine.
Mr. Milledge: I just would like to point out that
458 this probably is not relevant, even along this line,
because the Train Dispatchers aren’t on strike. |
don’t believe they ever have been during this dispute; have
they, Mr. Robbins?
The Witness: We have not been on strike, no, sir.
By Mr. Devaney:
Q. Now, Mr. Robbins, if I recall the testimony yesterday,
it was stated that the American Train Dispatchers had
bargained with the company concerning the company's
notice of July 31st of the intention to terminate the union
shop agreement; is that correct? A. He had bargained,
yes, sir.
Q. Did this bargaining occur in the presence of a Court
Reporter? A, Yes, sir, it did.
Q. Did you by chance order copies of the transcript!
A. I did, sir.
Q. Now, the cancellation—
The Court: Was the answer that you did order copies?
a
487
The Witness: Yes, I did.
459 The Court: Thank you.
By Mr. Devaney:
Q. Now, the cancellation of the union—of your union
shop agreement has never been placed into effect as to
your union; is that correct? A. That’s the way I under-
stand it, yes, sir.
Q. Now, during the period of the strike, Mr. Robbins,
have members of your union returned to work, to your
knowledge? A. One of our members has returned to work.
Q. Has any disciplinary action been taken against him?
A. None whatever.
Q. Have any new members been admitted, that is, new
employees—A. No, sir.
Q. —hired since the strike began? A. No, sir.
Q. Now, Mr. Robbins, I show you this document which
is marked as Defense Exhibit G, which is the ‘‘Strike Call
and Instructions Pertaining to Conduct of Strike’’. Did
you receive a copy of that or one similar to that issued by
either the cooperating unions or any other union at or
before the strike began on January 23? A. No, sir.
460 I don’t recall ever having received a copy of that.
Q. Were you requested by one or more of the
unions involved in this strike not to work during the period
of the strike? A. No, sir.
Q. Were you informed in advance that the strike was
going to begin? A. Yes, I had been informed,
Q. You were informed by the unions? A. I had had
word by the unions, or a summons, and I also got word
from the railroad that, as of such-and-such a day, our jobs
were abolished.
Q. This was conditional on the strike occurring, wasn’t
it, Mr. Robbins? A. That's right, sir.
Mr, Devaney: Your Honor, subject to looking at the
document marked as Defendants’ M, which I have not seen
until it was handed to me here this afternoon, I have no
further questions of this witness at this time.
488
Cross Examination
By Mr. Milledge:
Q. Mr. Robbins, you’ve got how many members in
Florida? A. A total of five.
461 Q. A total of 5. So 20% of your people have gone
back to work? A. That’s right.
Mr. Milledge: That’s all we have.
(Witness excused)
Mr. Devaney: Mr. C. S. Kerr.
The Court: Sir?
Mr. Devaney: Mr. C. S. Kerr.
C. S. Kerr,
having been produced and first duly sworn as a witness on
behalf of the defendants, testified as follows:
Direct Examination
By Mr. Devaney:
Q. For the record, Mr. Kerr, would you state your name?
A. Charles S. Kerr.
Q. Are you an official of the American Railway Super-
visors Association? A. Yes. [ am the District Chair-
man.
Q. Now, you received a subpoena to bring with
462 you your Constitution and/or By-Laws? A. Well,
I didn’t have it here. There might be one over there
in that pile.
Q. Then you have brought them? A. I didn’t have any-
thing to bring. I didn’t have any records or nothing. I
was put on as District Chairman and came at the same time
as the strike, so I’ve never been involved in anything,
period.
Q. So you don’t have a copy of your Constitution? A.
No, sir.
Q. You have been here, have you not, Mr. Kerr, during
the period Mr. DuPont and others have testified about the
obligation of employees and so forth? A. Yes, sir.
Q. To the best of your knowledge, is this the same
obligation of membership that these other unions have, that
is, not to work during—for an employer during the period
of an authorized strike? A. No, sir, I don’t think so, be-
cause we have some supervisors that are working that are
members of the organization and paying their dues.
Q. Had you taken any disciplinary action against any
of those people, Mr. Kerr? A. Not to my knowledge.
463 Q. Have you expelled any of them? A. Not to
my knowledge.
Q. Have you admitted any new employees to member-
ship? A. I don’t know of any that even put in application.
That would be handled by our General Chairman.
Q. By your General Chairman? A. Yes.
Q. Where is he located? A. C. W. Puckett. He’s in
Miami.
Q. Miami? A. Yes.
Mr. Devaney: No further questions of this witness.
489
Cross Examination
By Mr. Milledge:
Q. Are the Supervisors on strike? A. No, sir.
Q. You haven’t been on strike? A. No, I never have
been on strike. I was just cut off.
Q. And some of your men are back to work? A. Yes, sir.
The Court: You said you were cut off?
464 The Witness: Well, I received a notice from the
company that, when the railroad went on strike, I
didn’t have no job no more.
The Court: Yes, sir.
Mr. Devaney: Mr. Kerr, just before yeu leave now—
The Court: Come back.
HPS UTE a
a.
490
Redirect Examination
By Mr. Devaney:
Q. Isn’t it true that you received notices of jobs ad-
vertised for bids since February 3rd? A. No, sir; abso-
lutely not.
Q. Are you saying that you would have accepted employ-
ment but was never—
The Court: He hasn’t said that.
The Witness: I didn’t say that. Now, I just answered
your question.
By Mr. Devaney:
Q. Well, have you been informed of any jobs
465 within your classification that have been posted for
bids? A. No, sir.
Q. Have you made any effort to see whether bids were
posted? A. No, that’s up to them. They furloughed me.
It’s up to them to write me a letter whenever they have one
that’s open, if my seniority would entitle me to the job.
Q. Now, you say that the proecdure in advertising bids
requires that the individual furloughed must be— A.
Absolutely.
Q. —advised by letter? A. How is he going to know
otherwise?
Q. Have you been advised by—you say you have never
been advised by letter of the availability of work since the
strike began? A. No.
Q. You are positive of that? A. I am positive.
Mr. Devaney: No further questions, Your Honor.
The Court: Anything further?
Mr. Shapiro: No, sir.
(Witness excused)
491
466 Mr. Devaney: Mr. Winstead.
Charles L. Winstead,
having been produced and first duly sworn as a witness
on behalf of the defendants, testified as follows:
Direct Examination
By Mr. Devaney:
Q. For the reeord, would you state your name, Mr.
Winstead. A. Charles L. Winstead.
Q. And are you an official of the Brotherhood of Mainte-
nance of Way Employees? A. Beg pardon?
Q. Are you an official of the Brotherhood of Maintenance
of Way Employees? A. I am General Chairman of the
Brotherhood of Maintenance of Way Employees, Seaboard
Federation.
Q. Now, does that include the Florida East Coast? A.
It does, yes, sir.
Mr. Devaney: Now, I would like to have marked this—
this is the Constitution you furnished, isn’t it?
The Witness: Yes. sir.
467 The Clerk: N.
(The referenced document was received and filed in evi-
dence as Defendants’ Exhibit N.)
By Mr. Devaney:
Q. Now, you have heard the stipulation proposed by Mr.
Milledge to the effect that the Brotherhood of Maintenance
of Way Employees has similar provisions in its Constitu-
tion to those reviewed by Mr. DuPont with respect to the
IBEW Constitution.
Is there any deviation from that? A. I don’t know
whether I’m correct in this or not. I think you read in
his Constitution something about an obligation that they
take them.
Q. Yes. A. I don’t think there’s any obligation in our
Constitution and By-Laws, Mr. Devaney.
i ae eenemnnen ceeneen
EAR REN OS SSIES A AEE!" RETIRR NT a) SOT IN RETIN HE HGR TIE SN SEEN aR eg
The Court: When a man enters a lodge, doesn’t he take
some kind of an oath?
The Witness: Sir?
The Court: Doesn’t a man take some kind of an
468 oath when he enters a lodge?
The Witness: Not to my knowledge, no, sir. It
might be a local lodge matter, Your Honor.
The Court: I see. Thank you.
By Mr. Devaney:
492
Q. Now, except for the obligation of membership, Mr.
Winstead, do the other deviations we talked about, that is,
the subjection of the member to expulsion if he works for
an employer against whom there is an authorized strike—
A. I would say that’s—
Q. —those provisions do apply I mean, you have simi-
lar provisions in your Constitution? A. T would say so,
yes.
Q. Now, have there been any members of your organi-
zation against whom disciplinary action has been taken
since January 23, 1963, and in connection with, who were
former employees of the Florida East Coast? A. Not to
my knowledge, no, sir.
Q. Now—
The Court: Would you be likely to know?
469 The Witness: Sir?
The Court: Would you be likely to know?
The Witness: Well, I think the Constitution and By-
Laws would provide, Your Honor, that just action taken
against a member would have to be by a member in the
Local Lodge; and I don’t have—
The Court: Would it be reported to you as General |
Chairman? i
The Witness: I would think so, yes, sir. —
Mr. Devaney: Now, one of the provisions, Your Honor,
purely for the record, similar to those that we referred to
earlier, is Article 21, Section 21, appearing on—the por-
tion appearing on page 107, in psrticular; Section 7, on
page 65; Section 8, on page 66; Section 2, on page 61.
aed
493
By Mr. Devaney:
(. Do you care to look at any of those? I didn’t mean
to—(Tendering to witness) A. You read them off so fast
there.
Q. If I have made any errors since 61— A. You
470 are talking about Section 2 here? (Indicating)
Q. Yes. A. What is your question about it?
Q. I didn’t ask anything. I just said that these were
similar provisions, were similar to those Mr. DuPont had
pointed out and discussed, A. Yes, sir. I would assume
that, yes, sir.
Mr. Devaney: I have no further questions of this wit-
ness, Your Honor.
Mr. Shapiro: No questions.
The Court: Mr. Winstead, your craft is one of the non-
operating unions which is on strike, what’s called the
eleven non-operating cooperating—
The Witness: Yes, sir, Your Honor.
The Court: —crafts. So that you have been on strike
since January 23, 1963?
The Witness: Yes, Your Honor.
471 The Court: Thank you.
By Mr. Devaney:
Q. Mr. Winstead, before you go, I find that you have
giver. us a second document which is entitled ‘‘ By-Laws of
the Jomt—’’ A. That’s the System Federation By-Laws,
Mr. Devaney.
Q. Well, it’s entitled ‘‘For the Government of the Joint
Protective Board and Members of Seaboard Federation’’.
A. Yes, sir, that’s correct.
Q. This is Seaboard, Jacksonville Terminal, Florida
East Coast, Broward County Port Authority, Gainesville
Midland Railroad and Norfolk Southern Railway. A.
Correct.
The Clerk: O in evidence.
(The referenced document was received and filed in evi-
dence as Defendant’s Exhibit O.)
494
By Mr. Devaney:
Q. Now, turning your attention to that, Mr. Winstead,
No. 7 provides as a preamble the objects of the Seaboard
Federation are: No. 7, to require all members to faithfully
and honestly perform their duties to the best of their ability
for the Brotherhood and for their employers. And I guess
that—perform to the best of their ability for the
472 Brotherhood, their duties.
We asked Mr. DuPont, does that include the duty
to honor any authorized strike call?
That’s your Local By-Laws now. A. Well, there’s
nothing referred to in there, Mr. Devaney.
Q. I agree there isn’t. This is a general term. But is
one of the duties—is one of the duties to the Brotherhood
an obligation or, as I say, you say you don’t have an obli-
gation; that is, it is expected that the members will obey
any lawful action, including the authorization of the
strike? A. Well, sir, there’s nothing supposed to be in
that Constitution and By-Laws that conflicts with the
Grand Lodge Constitution and By-Laws.
Does that answer your question?
Q. Yes. We have established that nothing—that the
Grand Lodge Constitution has such a provision. A. Well,
there’s not supposed to be anything in there to conflict
with that.
Q. I understand. But this was the only one that T saw
here that seemed to bear on this question. And I ask yon,
does it, even though it’s general, does this have the same
effect by imposing this duty on membership to abide
473 by the rules of the union? A. Well, in my opinion,
I would say yes.
Q. Fine.
Mr. Devaney: No further questions, Your Honor.
Mr. Shapiro: No questions, Your Honor.
The Court: Come down.
(Witness excused)
Paar |
a
495
Mr. Devaney: Mr. Lanier.
R. L. Lanier,
having been produced and first duly sworn as witness on
behalf of the defendants, testified as follows:
Direct Examination
. By Mr. Devaney:
Q. Will you state your name for the record, Mr. Lanier.
A. R. L. Lanier.
Q. Are you an official of the Sheet Metal Workers In-
ternational Association? A. I am the President and Gen-
eral Chairman of the Sheet Metal Workers, District Coun-
cil 42.
Q. Is this the Constitution you gave us? (Indi-
474 cating) A. That’s right.
Mr. Devaney: Would you mark this, please.
The Clerk: P.
(The referenced document was received and filed in evi-
dence as Defendants’ Exhibit P.)
By Mr. Devaney:
Q. Now, you have heard the testimony of Mr. DuPont
and the stipulation by Mr. Milledge. Is that stipulation
that you have provisions similar to those contained in the
IBEW agreement, do you have any reservation about this?
A. No, I do not.
Q. Now, Mr. Lanier, has any disciplinary action been
taken by youur—by the Sheet Metal Workers International
Association against any employee of the Florida East
Coast Railway Company since January 23, 1963? A. No,
sir.
Mr. Devaney: No further questions of this witness,
Your Honor.
Mr. Shapiro: We have no questions, Your Honor.
(Witness excused )
496 ,
475 Mr. Devaney: Mr. Dubberly.
J. E. Dubberly,
having been produced and first duly sworn as a witness
on behalf of the defendants, testified as follows:
Direct Examination
By Mr. Devaney:
Q. Mr. Dubberly, would you please state your name for
the record. A. J. E. Dubberly.
Q. Are you an official] of the Brotherhood of Railroad
Signalmen? A. I’m General Chairman of the Grievance
Committee.
Q. And this is the Constitution that you furnished? A.
Pardon?
Q. This is the Constitution that you furnished? (Indi-
eating) <A. Yes, sir, that’s it.
Mr. Devaney: Would you mark this, please.
The Clerk: Q.
(The referenced document was received and filed in evi-
dence as Defendants’ Exhibit Q.)
476 By Mr. Devaney:
Q. Now, you have heard the stipulation and the testi-
mony of Mr. DuPont concerning the fact that you have
similar provisions in your Constitution to those that were
testified to by him in connection with the IBEW.
Now, do you have any reservation about that stipulation?
A. No.
Q. Now, since January 23, has your organization taken
disciplinary action against any employee of Florida East
Coast Railway Company? A. How is that?
Q. Since January 23, 1963, has the Brotherhood of Rail-
road Signalmen taken any disciplinary action against any
employee of Florida East Coast Railway Company? A.
No, they haven’t, not to my knowledge.
The Court: Well, it would be taken in your Committee,
wouldn’t it?
The Witness: Pardon?
The Court: You said you were General Chairman or
) 497
Chairman of the Grievance Committee?
477 The Witness: Yes, sir.
The Court: You can answer no?
The Witness: Yes.
The Court: Straight out without saying ‘‘not to my
knowledge’”’.
The Witness: Well—
The Court: It would seem to me.
The Witness: I wili answer no, then.
By Mr. Devaney:
Q. Now, the Brotherhood of Railroad Signalmen are not
members of System Federation 69, are they? A. No; no,
sir.
Q. Now, these are the two documents market for identi-
fication as Defendants’ Exhibits G and D. Did your or-
ganization promulgate a similar document to this? A.
Yes, they did.
Q. You did? A. Yes, sir, we did.
478 Q. Is it substantially identical to this? A. Well,
I believe it is.
Q. Did you receive notice, or copies, or knowledge that
organizations other than System Federation 69 and this
one by the Brotherhood of Railroad—Railway Clerks had
issued a document like this? Did you know of any others,
other than these two, plus your own? A. No.
Mr. Devaney: I have no further questions of this wit-
ness,
Mr. Shapiro: No questions.
Cross Examination
By Mr. Milledge:
Q. The Signalmen are on strike? A. Yes, sir.
Q. You are one of the eleven cooperating non-ops? A.
Yes.
Mr. Milledge: That’s all.
The Court: Come down.
(Witness excused)
as OS St gh ce cain ew eT saps CS ARNO IS AEE RRS TLE LEELA IEE OI
498
479 Mr. Devaney: Mr. Osban.
B. R. Osban,
having been produced and first duly sworn as a witness
on behalf of the defendants, testified as follows:
Direct Examination
By Mr. Devaney:
Q. Mr. Osban, would you state your name for the record,
please? A. What’s that?
Q. State your name for the record, please. A. B. R.
Osban.
Q. And do you hold a position in the International
Brotherhood of Boilermakers? A. Local Chairman.
Q. And this is the Constitution that you produced!
(Indicating) A. Yes, sir.
Mr. Devaney: Would you mark this, please.
The Clerk: R.
(The referenced document was received and filed in evi-
dence as Defendants’ Exhibit R.)
480 By Mr. Devaney:
Q. Now, you have heard the testimony of Mr. DuPont
and the stipulation by Mr. Milledge. Do you have any
reservations concerning his stipulation that your Con-
stitution has similar provisions to those contained in the
IBEW Constitution? A. I presume it is.
Q. You don’t disagree with that stipulation? A. No.
Q. Now, since the strike began on January 23rd, has
disciplinary action been taken by the Internationa] Broth-
erhood of Boilermakers against any employee of the Florida
East Coast? A. Not to my knowledge.
Q. And would this come to your knowledge? A. Not
necessarily.
Q. I see. And what is your position again, sirf A.
Local Chairman.
499
Q. Local Chairman? A. Yes, sir.
Q. And a Local Chairman is only over one locality?
| A. Yes, sir.
Q. Whereas— A. Or where work is being done at
481 points they don’t have one in our craft, then I might
have—
Q. I see. A. —something to do with it.
Mr. Devaney: I have no further questions of this wit-
ness, Your Honor.
The Court: Was he served a subpoena?
Mr. Devaney: Yes, he was, Your Honor; or at least
we had him listed.
You did receive the subpoena, didn’t you, Mr. Osban?
Did you receive a subpoena?
The Witness: Yes, sir.
The Court: You haven’t anything further?
Mr. Milledge: No further questions.
(Witness excused)
Mr. Devaney: Mr. I. E. Hamilton.
482 I. E. Hamilton,
having been produced and first duly sworn as a witness
on behalf of the defendants, testified as follows:
Direct Examination
By Mr. Devaney:
Q. Would you state your name again for the record,
please, Mr. Hamilton. A. I. E. Hamilton.
Q. And are you an official of the Order of Railroad
Telegraphers? A. I am General Chairman of the Syste:n
Division 87, F.E.C. Railroad.
Q. And these two documents are the Constitution and
the By-Laws that you furnished? (Indicating) A. They
are.
The Clerk: Defendants’ Exhibits S—do you want this
all one?
m
A - - > ‘ e
fe ER RNR Sor ee na Nas RR LAE NS AORN OMELET! Rai erat
500 g
Mr. Devaney: Might as well. \
The Clerk: Defendants’ Exhibit S. '
(The referenced material was received and filed in evi-
dence as Defendants’ Exhibit 8.)
483 By Mr. Devaney:
Q. Now, since January 23rd, Mr. Hamilton, has any
disciplinary action been taken against any employee of the
Florida East Coast Railway Company? A. None coming
under our agreement, no,
Q. What do you mean ‘n-ne under our agreerent’’t
A. Well, those are the only one: I can answer for,
Q. I mean, what— A. I mean no telegrapher has been
disciplined,
Q. I understand. I follow you.
You are saying that your union hasn’t taken any dis-
ciplinary action then against any employee of the Florida
East Coast Railway Company? A. None whatever.
Q. Now, is there any qualification or reservation that
you wish to make with regard to the proposed stipulation
by Mr. Milledge?
Now, he proposed— A. This speaks for itself. (In-
dicating) A member joining the order signs a pledge to
live up to the laws and—to the laws and edicts of the
order. But there’s no long, drawn-out pledge like you had
in Mr. DuPont’s.
Q. Yes. Now, you are saying, however, that if he worked
for an employer with respect to whom the teleg-
484 raphers have an authorized strike, he would be sub-
ject to expulsion; isn’t that—I mean, that’s what
Mr. DuPont had testified to. A. No, it doesn’t say that.
Q. It doesn’t say thatf A. It doesn’t say that. He
would later be given a chance to clear himself, or what-
ever is necessary. He will be given a fair and impartial
investigation.
In our ease here, we are holding all of those in abeyance
501
until the strike is over, and no decision has been made on
them.
Q. You mean you are going to try them after the strike
is settled? A. No, I didn’t say that.
Q. I’m sorry, I didn’t understand.
You said you are holding— A. I said we are just
leaving that matter in abeyance.
Q. What’s the matter you’re leaving in abeyance? A.
The question of any of our members who are working for
the F.E.C,
Q. You mean complaints have been filed or charges have
been filed that members are working? A. No charges have
been filed but I have received information that they are
working.
485 Q. That they are working? A. That’s right.
QQ. And you are holding this whole matter in
abeyance until the strike is over? A. That’s right.
Q. This means that charges could be preferred after the
stirke is over? A. They could be, yes.
Q. And they could be expelled as a result of this? A.
Yes, they could be.
Q. Has any person been admitted to membership since
January 23, 1963, who is currently working for Florida
Kast Coast? A. No, no one has applied.
Q. Now, as I read Article 2, Section 4, on page 9, among
other provisions—or do you have that? A. I have it.
Q. Page 9. A. That’s right.
Q. Now, this provides, among other things, that any
member of a division may protest against the admission of
any applicant. A. That’s right.
Q. And the next paragraph says that if five mem-
486 bers protest the admission of any applicant for
membership and if the supporting reasons and evi-
dence are construed sufficient by the division officers to
justify the objections, the applicant shall be declared re-
jected. A. That’s right.
Q. And that—in other words, that would bar an ap-
502
plicant from consideration without a vote of the member-
ship? In other words, five members plus the officers
would be sufficient; isn’t this correct? A. Well, in the
first place, in order to get an application in, he has to have
three regular people to recommend his application but it
takes five to over-ride the application and keep him from
becoming a member. And they’ve got to have good and
sufficient reason.
That has been done, was done a short time before the
strike.
Q. Now, what was this that was done a short time before
the strike? A. I understand we had a member—we had an
applicant that we did not accept right under this par-
ticular rule.
Q. Yes. You mean where five people protested? A.
That’s right.
Q. Now, Article 12, Section 10, page 94, provides—
Article 12, in general, is entitled, ‘‘ Misconduct and
487 Penalties’’, and Section 10 provides:
‘¢ Accepting employment on any transportation company
in any capacity where an authorized strike of the Order or
any of its subordinate divisions exists.”’
A. That’s right.
Q. So that that makes that act of accepting employment
on the Florida East Coast an item subject to misconduct
and penalties under Article 12? A. After he is given a fair
and impartial trial.
Mr. Milledge: I believe this is what we stipulated. This
was the same as all the rest.
Mr. Devaney: I realize, Mr. Milledge, but Mr. Hamilton
indicated that there were some differences here and [ felt
obligated, in view of this, to review it. Otherwise, I quite
agree with you.
No further question of this witness, Your Honor.
(Witness excused)
SPE LSM nari news “tinh
Eo
r
503
Mr. Devaney: The next witness will be Mr. Wyckoff.
488 R. W. Wyckoff,
having been produced and first duly sworn as a witness
on behalf of the plaintiff, was recalled as a witness on
behalf of the defendants and testified further as follows:
Direct Examination
By Mr. Devaney:
Q. Mr. Wyckoff, you testified yesterday in this case and
the oath will still be applicable today. You understand
that? A. Yes, I do.
Q. Mr. Wyckoff, has it been a practice of the Florida
Kast Coast for some period of time to take stenographic
notes of all negotiating sessions? A. It has to my per-
sonal knowledge,—
Mr. Milledge: Excuse me.
The Witness: —since 1954.
The Court: Since when?
The Witness: 1954.
489 Mr. Milledge: We object because we feel this is
irrelevant and not germane to the issues before the
Court.
Mr. Shapiro: Your Honor, I would join that objection
to the line of questioning. The reasons are substantially
that the occasion, the causes which led to the breakdown
of the negotiations, are not really—are not relevant to the
complaint.
The Court: I’m going to overrule the objection and let
the testimony stand that that’s their practice.
By Mr. Devaney:
Q. Now, was this—were the minutes taken consistently
from 1954 in all negotiations with unions, Mr. Wyckoff?
A. Yes, it was.
Q. Was there ever any occasion prior to 1963 that any
organization refused to bargain while you were taking
IES RSS RE Rahs gent ata
-
stenographic notes of the meetings? A. No, that question
never came up.
Q. As a matter of curiosity, was a public stenographer
used on each of these occasions? A. No. Prior to March
15, 1963, it was done by a member of the negotiating
490 staff or team who was qualified to take shorthand.
Q. And since that time, why hasn’t that been
done? A. Well, because of the fact that I have no one on
the staff now who is qualified to take shorthand and I
don’t have available secretarial help I could assign such
duties.
Q. Now, in 1963, was there occasions on which negotia-
tions, before August, were conducted with the unions in the
presence of a Court Reporter? A. Yes, in the month of
June there were a number of conferences held with various
unions in connection with Section 6 notices that they had
served.
Q. This was a notice that the unions had served? A.
Yes, that’s correct.
Q. And there was a Reporter present at each of those
meetings? A. That’s correct.
Q. And they obviously did not walk out if they con-
tinued the negotiations? A. That’s right. The negotia-
tions were continued with the Court Reporter present.
Q. Now, let’s digress just one moment, Mr. Wyckoff:
From 1954, were there occasions during which a Media-
tor from the National Mediation Board was present when
stenographic minutes of the meeting were being
491 taken? A. Yes, on several occasions.
Q. Could you tell us the names of the Mediators
who were present on such occasions? A. Well, I can’t re-
call them all at this time. Warren S. Lane was one. James
Holleran was another.
Q. Did they ever object to your taking stenographic
minutes? A. No, not at all. In fact, they made notes
themselves.
>"
Q. Did they take stenographic notes? A. I don’t believe
either one of them—lI believe they wrote them out in long-
hand.
The Court: You think they had a pad thcre and made
some notes as they went along; is that what you are saying?
The Witness: Correct.
By Mr. Devaney:
Q. Have any of the union representatives made minutes
during the course of your negotiations? A. Yes. A num-
ber of them make extensive notes.
Q. Could you give us an example of some of those who
do? A. Vice-President Chester of the Trainmen’s Organ-
ization is one. Former General Chairman Baum-
492 berger of the Trainmen’s Organization is another.
James Bearden, Grand Vice-President of the Clerk’s
Organization, is another.
Q. Now, when was the first time, Mr. Wyckoff, that
there was a refusal on the part of the unions to meet in the
presence of a Court Reporter? A. It was in connection
with the notice I served to cancel the union shop. That’s
the notice of July 31, 1963.
Q. And that was the meeting that was scheduled for
August 29? A. That’s correct.
Q. Now, did you—was one of the Mediators assigned by
the Mediation Board in January of 1964 a Mr. Newlin?
A. Yes, I believe his name is J. Earle Newlin.
Q. With respect to which cases was Mr. Newlin assigned,
involving what organizations; if you remember, Mr.
Wyckoff? A. He was assigned to mediate five cases in-
volving the International Association of Railway Em-
ployees.
Q. Tell us what occurred when Mr. Newlin arrived on
the scene?
Mr. Shapiro: Objection, Your Honor. This line of
questioning is not relevant or material to the issue in this
action.
PLN BAL PRE INL LEN I
506
Mr. Devaney: Your Honor, we feel that it is
493 material because it will demonstrate that Mr. Newlin
declined to proceed with mediation, as he is required
or is obligated under the Act to do; and this is merely one
further stage in the failure of the Mediation Board to per-
form properly its duties as imposed upon it by the Act.
The Court: Objection sustained.
In other words, I reach the conclusion that this thing
wasn’t relevant, reaching out from the other side to get
it, it follows for me to—
Mr. Devaney: I understand.
For the record, may I say we would like to make a
proffer of proof?
The Court: You can make a tender if you like.
Mr. Devaney: Tender and offer.
The Court: Dictate it into the record. I would be glad
to have you do it.
Mr. Devaney: Yes, sir.
If permitted to do so, the defendant would prove
494 by testimony of this witness that Mr. Newlin de-
clined to meet in the presence of the Court Reporter,
that he refused to call a meeting between the company and
the I[ARE, even though the IARE had told Mr. Newlin and
the company that it did not object to meeting in the presence
of a Court Reporter.
Further, that the company urged Mr. Newlin to remain
either on the premises or in his own motel room while the
company met further with representatives of the union,
and if and when they reached a point that they could not
proceed further without the assistance of the Mediator,
that the Mediator would be called to talk to the parties r
dividually to try and work out an agreement, and that ail
such individual meetings were to be in the absence of a
Court Reporter; that Mr. Newlin refused to do so and that
he left without making any further attempt to mediate the
dispute.
.
507
The Court: I’m not quite clear when this occasion was.
Mr. Devaney: This was in 1964. It was approximately
March.
Is that right?
The Witness: March 18th through 20th.
495 Mr. Devaney: March 18 through the 20th of 1964,
Your Honor.
The Court: And that was in connection with the IARE,
some cases?
Mr. Devaney: With the TARE cases, Your Honor.
By Mr. Devaney:
Q. Mr. Wyckoff, did you—
The Court: That completes the proffer?
Mr. Devaney: That completes the proffer, yes, Your
Honor.
The Court: All right. It’s excluded on the objection
already made.
By Mr. Devaney:
Q. Mr. Wyckoff, following the assignment of Mr. Newlin
in connection with the [ARE cases, did you have occasion
to write Mr. O’Neill, who is the Chairman of the National
Mediation Board? A. Yes, I wrote to Mr. O’Neill, I believe
the date was April 21st, calling his attention to the ex-
cessively large number of cases which had been
495 docketed by the Board involving disputes on the
Florida East Coast and on which no active media-
tion had been taken, many of those cases having been
docketed later than the cases on which—I mean, earlier
than the cases on which Mr. Newlin had appeared on the
scene to mediate.
Q. Now, is this, Mr. Wyckoff, a copy of your letter to
Mr. O’Neill of April 21, 1964? A. Yes, it is.
Q. Now, did you receive any reply to that letter of
April 21? A. TI received no reply and, on May the 5th, I
a...
believe it was, I again wrote to Mr. O’Neill concerning that
matter.
On May the 11th, I believe, I received a response from
Mr. Thompson calling—
Q. Let me interrupt you a minute now. I’m looking at
a letter which is dated April 28. Is that the one that you
meant to refer to rather than May the 5th? A. That’s cor-
rect. I’m sorry. I had the date wrong.
Q. This is the second—this is the second letter to Mr.
O’Neill?, A. That’s correct. The letter of April 28 is the
second letter.
Q. Now, had you heard from your first letter when
497 you—you wrote the first letter April 21, 1964? A.
That’s correct.
Q. Had you heard by the time you wrote the letter of
April 28 A. No, sir. I had heard no word from the
Board.
Q. Did you later hear from the Mediation Board? A.
Yes. I received a reply from Mr. Thompson. He advised
that Mr. O’Neill-—
The Court: He didn’t ask you what he said.
The Witness: I’m sorry.
508
By, Mr. Devaney:
Q. Now, what was the date of that letter, Mr. Wyckoff?
A. May 11.
Q. Did you ever get a letter directly from Mr. O’Neill?
A. Yes. On May the 14th, I received a letter from Mr.
O'Neill.
Q. And did you reply to that final letter from Mr.
O'Neill? A. Yes, I did. On May 18th, I made a response
to that.
Mr. Devaney: I ask that these be marked for identifica-
tion and I now show them to the other attorneys.
498 The Court: Do you mind if we give the whole
group—
ae
509
Mr. Devaney: No, they are altogether, Your Honor.
The Clerk: T.
(Thereupon, the referenced documents were marked De-
fendants’ identification Exhibit T.)
Mr. Shapiro: Are you offering these, Mr. Devaney?
Mr. Devaney: I haven’t yet; I shall in due course. Yes,
if it will simplify matters, I will offer Defendants’ Exhibit
—the exhibits marked as Defendants’ Exhibit T in evi-
dence.
Mr. Shapiro: I shall object to the offer, Your Honor, on
the ground that these letters are not relevant to the issues
in this case or material in respect to the issues in this case.
It has been established that the Mediation Board has
not conducted mediation with respect to the union shop
dispute or with respect to the September 24, 1963 ‘Uni-
form Working Agreement’’, except as concerns the In-
ternational Association of Railway Employees. And
499 this exchange of correspondence which relates to the
carrier’s demand for mediation on all the cases that
F.E.C. has with the Board, including many cases not in-
volved in this action, is not relevant or material.
Mr. Devaney: Your Honor, we feel that this is entirely
relevant. .
In the first place, the letter of April 21st was-written be-
fore there was any litigation in this case.
The Court: After the Trainmen case was decided and
before this case was brought?
Mr. Devaney: That’s right.
The Court: I say it was after the Trainmen case was
decided and on appeal, and before this case was brought?
Mr. Devaney: That’s right. And before any litigation in
this case. Now—
The Court: They are excluded. Mark them for identifi-
cation only.
PEPE
ie
Q. Now, Mr. Wyckoff, following your letter of
500 May 18 to Mr. O’Neill, has there been any further
response from Mr. O'Neill or the Mediation Board!
Mr. Shapiro: Objection, Your Honor.
The Court: Well, I assume the answer is going to be
no, isn’t it?
The Witness: That’s correct.
The Court: All right. To nail this other thing down,
this is the complete correspondence.
Mr. Milledge: Judge, while we’ve got just a moment,
we’ve had these people here now for three days and I hope
maybe, if there’s going to be any more of the union people
called, we might find that out so we could let them go.
The Court: Maybe the assumption was unwarranted
but I assumed, when he quit calling these chairmen and
representatives, that he didn’t intend to call any more; is
that a fair assumption?
Mr. Devaney: I’m sorry, Your Honor. Did I in-
501 tend to call any of these gentlemen further?
The Court: Yes.
Mr. Devaney: No, I have no intention of calling them
further.
The Court: They may be excused then under the sub-
poenat
Mr. Devaney: Yes.
"he Court: Of course, some of them—a great many of
them represent plaintiffs in intervention here.
Mr. Devaney: Yes, sir.
The Court: Maybe they all do. They are certainly
welcome to stay but there is no requirement that they re-
main longer.
Mr. Milledge: Fine. That was the ruling I was seeking.
The Court: Mr. Devaney has merely released them from
their subpoena.
Is that clear to all you gentlemen?
510
By Mr. Devaney:
511
502 By Mr. Devaney:
Q. Mr. Wyckoff, just for the clarification, the [ARE was
the organization with respect to whom the September 24
notice was not placed into effect because they continued to
bargain; isn’t that correct? A. That’s correct. They con-
tinued negotiations.
Mr. Devaney: I have no further questions of this witness
at the moment, Your Honor.
Cross Examination
By Mr. Milledge:
Q. Mr. Wyckoff, I think this is what you testified to but
I just wanted to be clear:
It wasn’t until after the strike, until 1963, that you hired
the public stenographer or the Court Reporter to sit in on
these negotiations; is that correct? A. Well, that was the
result of the shortage of secretarial—
Q. Well, all right.
The Court: At any rate, you had had somebody from
your staff there. You never had a Court Reporter there
until after the strike?
503 The Witness: That’s correct.
By Mr. Milledge:
Q. Up to that time, each party took his own notes? A.
Well, it was a little more than that.
Q. Well— A. A stenographie record was made of what
transpired,
Q. Did you deliver it to the other party? A. No, I did
not deliver it.
Q. That was just for your own use? A. Yes.
Q. Right. And they could take their own notes if they
wanted to, and you took your notes? A. That’s right.
Q. But starting after the strike, you started bringing in
—what office is it? You used an office here in Jacksonville,
did you not? A. Yes. We have a public Court Reporter
that came in, that’s right.
ORES MLE RAE EERIE NEE NOLS IPP R EEL
512
Q. Well, what is the name of that office? A. Mr. Rosen-
feld.
Q. Sam Rosenfeld. So, since the strike or since—it was
about—when was it you first used him? A. I think I tes-
tified just a minute ago it was March 15, 1963.
504 Q. All right.
Mr. Milledge: That’s all.
The Court: You can come down.
(Witness excused)
The Court: What else do you have, Mr. Devaney?
Mr. Devaney: Your Honor, at this—this substantially
completes it. I was going to ask if you would like to ad-
journ.
The Court: A little louder, please.
Mr. Devaney: I would like to ask if we might adjourn for
the day, or take a short recess.
As far as I know, this completes the presentation of
witnesses by the defendants. Before making an absolute
commitment, I would like a brief recess.
The Court: Well, I’m agreeable. I was hopeful we could
finish today, just as I hoped we could finish it yesterday,
but I am not disposed to hurry anybody or make my own
time requirements the basis for shortening up what-
505 ever you gentlemen want to put in, whatever sub-
mission you want to make.
Now, you gentlemen might consider that, if you have
rebuttal, you should be prepared to go ahead with it in
the morning unless, in looking over his notes and recon-
sidering it, Mr. Devaney finds there are little bits and pieces
he wants to put in. He has substantially completed it, as
I understand him. And I think you both then should also be
prepared to argue the case in the morning.
Mr. Shapiro: Yes, sir.
Mr. Devaney: Yes, sir.
The Court: Assuming that he closes and your rebuttal
is short, then be ready to go ahead and argue. I think it
would be an imposition on counsel and the attaches of the
Court for me to keep you here later tonight.
ee Ge
sores
513
Mr. Milledge: Your Honor, I may have to ask your in-
dulgence that Mr. Rutledge be here tomorrow and I not be
here. I’m not sure that my schedule has been rearranged
or not.
506 The Court: Well, whichever it is, and—
Mr. Milledge: We will be prepared to make a short
argument,
The Court: Well, we will leave it at that, Gentlemen.
Good night, Gentlemen.
Take an adjournment until 9:30 in the morning.
(Thereupon, at 5:20 o’clock p.m., on Wednesday, May 27,
1964, the Court adjourned to be reconvened at 9:30 o’clock
a.m. on Thursday, May 28, 1964.)
507 (At 9:30 o’clock a.m., on Thursday, May 28, 1964,
pursuant to adjournment of the preceding session,
the Court reconvened and the following further proceed-
ings were had):
The Court: Good morning, Gentlemen.
Mr. Milledge: Good morning, Judge.
Mr. Shapiro: Good morning.
Mr. Devaney: (Tendering intruments to the Court)
Your Honor, these represent the copies that we made
of Exhibits so that—
The Court: These, you are substituing?
Mr. Devaney: Yes, Your Honor.
The Court: You are going to return these papers to the
various witnesses who produced them?
Mr. Devaney: Now, the only—
The Court: Some of them may have left yester-
508 day afternoon, in which case I suggest you return
them to Mr. Milledge and he can distribute them.
The Clerk: Yes, sir.
The Court: Some of them were anxious to get away and
did leave yesterday afternoon.
Mr. Devaney: I would like to recall to the stand Mr.
Wyckoff.
The Court: Come back, please.
SPREE LENE, EOIN MY
514
R. W. Wyckoff,
having previously been sworn, was recalled to the stand
and testified further as follows:
Further Direct Examination
By Mr. Devaney:
Q. Mr. Wyckoff, have there been occasions at which a
Court Reporter was present when a Federal Mediator was
present? A. Yes, there have.
Q. And could you tell us who the Federal Meciator was?
A. Frank K. Switzer.
Q. And at this meeting, there were also representatives
of the various unions present? A. Yes, mostly Grand
Lodge officers.
509 Q. Do you recall when such a meeting occurred?
A. On July 24, 1963.
Q. Now, were there any occasions when meetings were
recorded in any way other than by stenographic reportings?
A. Yes. I have had meetings that were recorded by means
of a tape recorder.
Q. At which a Mediator was present?
Mr. Milledge: Excuse me. I’m not sure what kind of
meetings we are talking about. Are we still on mediation
or—
Mr. Devaney: Yes, sir.
By Mr. Devaney:
Q. The Mediator was present at such times? A. Yes,
Mediator Switzer was present at those meetings.
The Court: I didn’t hear who you said was present.
The Witness: Mediator Frank Switzer.
The Court: Switzer.
By Mr. Devaney:
Q. Now, were copies of these transcripts furnished to
the Mediator who was present at each of these meet-
510 ings? A. Yes, they were.
| |
Q. Now, Mr. Wyckoff, over the years, has there becn
any occasion to make use of the minutes of these nego-
tiating meetings? A. Yes. They are referred back to fre-
quently.
Q. In what manner, Mr. Wyckoff? A. Well, frequently
a question arises as to the intent of the parties at the time
a rule was negotiated or revised. And that is the main
reason for referring back to them.
Q. What sort of—You mean these are disputes with the
unions involving the application of a particular agreement?
A. That’s correct. And frequently those disputes go to
the Railroad Adjustment Board in Chicago and, of course,
the Board, with usually a neutral sitting-in on the case,
refers to the intent of the parties at the time a rule was
negotiated to determine whether or not it was being com-
plied with.
Q. And in these proceedings before the Adjustment
Board, have you had occasion to refer back to these minutes
and make use of the content of these minutes? A. Oh,
yes. The information contained in the minutes is invalu-
able in preparing cases for submission to the Board.
Q. Do you also have any occasion to refer to the minutes
in your discussions with the unions concerning these
dll various cases that are brought? A. Yes. At pre-
liminary discussions on the property, frequently
reference is made to the discussions and what transpired.
: Mr. Devaney: I have no further questions at this time,
Yopur Honor.
Mr. Shapiro: I have a few questions, Your Honor.
The Court: Yes, sir.
Further Cross Examination
By Mr. Shapiro:
Q. Mr. Wyckoff, when was the Mediation session at
which a tape recorder was used? A. There were two such
sessions. One was on June the 18th. The other was on
June 22nd, 1963.
515
co ok pags CEL
cess cnearms aeT SIRI BEERS
AERIS TEE SHEP RAIN ONT Na PRR RA eR 2 BEI STR SN Re Re
516
Q. Both in 1963? A. That’s correct.
Q. Had a tape recorder been use in any session involv-
ing a Section 6 notice, either private negotiations or medi-
ation, prior to 1963? A. Prior to 1963, no; because, as I
said yesterday, a member of my staff at that time was
512 qualified to take the minutes in shorthand.
Q. Now, prior to 1963, did you have verbatim tran-
scripts prepared of negotiation sessions? A. Not neces-
sarily verbatim, no; but a resume was made of what
transpired. In other words, it would be taken down ver-
batim and then a resume would be transcribed.
Q. You testimony is that you did have a verbatim short-
hand record prepared? A. That’s correct, because I my-
self did it on a number of occasions.
Q. You take shorthand? A. Yes, I do.
Q. And you prepared verbatim shorthand records? A.
I transeribed—I transcribed it in a resume form so that—
Q. So that they were not verbatim records; they were
resumes? A. The transcription was a resume but, during
the process of the discussions, it was taken down verbatim.
Q. And this continued, so that you had a word-for-word
record; is that right, in shorthand form? A. In short-
hand, that’s correct.
Q. You yourself, while you were negotiating, at times
made a verbatim record in shorthand? A. I didn’t
513. say that.
Q. I’m asking that. A. No. While I was on the
negotiating team of the railroad, from 1954 on until De-
cember of 1960, I did it. In December of 1960, I was made
Director of Personnel and then, at that time, another mem-
ber of my staff was qualified to take shorthand.
Q. Between 1954 and 1960, you testified—I’m just try-
ing to clear this up— A. Uh-huh.
Q. Is it your testimony that, between 1954 and 1960, you
yourself took a verbatim shorthand record of the negotia-
tions? A. That’s correct. .
aa
Q. Were you also actively particpating in the discus-
sions? A. I participated in them,—I won’t say actively—
because the man who was negotiating did all the talking
usually.
Q. And you simply sat and took a shorthand transcript
down; is that right? A. That’s correct.
The Court: What officer of the railroad was that,
514 the Chief Negotiator, during those days?
The Witness: Mr. C. L. Beals.
By Mr. Shapiro:
Q. Is he in the Personnel Department? A. He was the
Chief Operating Officer of the railway and he handled
the negotiations.
Q. When was the Court Reporter used for the first time,
Mr. Wyckoff, in a negotiating session? A. On March 15th,
1963.
Q. Now, just to clear up your testimony at this time
in the light of your testimony yesterday: Would it be ac-
curate to state that no verbatim transcript of the ne-
gotiating sessions was prepared prior to 1963? A. I would
say that was correct, yes. There really wasn’t any reason
for having a verbatim transcript as long as we had the in-
tent of the negotiators; and I had the shorthand notes to
refer back to.
Q. Now, did other parties make notes of some kind dur-
ing the negotiating sessions? A. Oh, yes.
Q. And can you testify as to the use that these other
parties might make of them? A. I assume they referred
back to them at times subsequent to the negotiations.
515 I don’t know what they did with them.
Q. Does the Florida East Coast Railway Com-
pany have stenographers in its employ at the present time?
A. Yes, it does.
Q. And would they be availiable to assist in preparing
notes from which resumes could be made? A. We don’t
have the availability of secretarial help that we had prior
517
OVS AM PEPE ITE
pe
to the strike, and because of a shortage of secretarial help,
I had to devise other means of recording these conferences.
Q. So the means you devised was to hire a Court Re-
porter? A. That, or use a tape recorder.
Q. Why didn’t you just hire an ordinary stenographer
to make the same kind of notes that had been made pre-
viously? A. Because a stenographer has to have quite a
degree of ability to record the conferences verbatim. Some-
one—
Q. Do you have sufficient shorthand skill to take ver-
batim notes? A. I don’t say I have at this time, because I
haven’t utilized it since 1960; but prior to 1960, I did.
Q. Did the—When did the representatives of the labor
organizations first question the use of a Court Re-
516 porter? A. I believe that they questioned the use of
a Court Reporter at the meeting of March 15th.
Q. And did they reiterate that objection at any time?
A. Well, they questioned the use of the Court Reporter
but they remained and negotiated.
Q. At that time—now, when were they—was it a com-
pany policy-——let me rephrase the question.
Did you ever inform the representatives of the labor
organizations that the company would hereafter insist
upon a Court Reporter? A. I told them that it would be
the policy from here on to have a Court Reporter present
during negotiating sessions, yes.
Q. When was that? A. Oh, I don’t recall the exact
date. I believe it was the meeting of June 15th on the em-
ployees’ Section 6 notices—on or about June 15,
Q. And what did the employees tell you? A. Well, they |
reiterated their objection to a Court Reporter being pres- |
ent but they continued to negotiate on their notices.
Q. Mr. Wyckoff, have you participated in mediation
sessions? A. Yes, I have.
517 Q. Was a verbatim transcript ever prepared of a |
mediation session, prior to the sessions which you de- |
scribed in your direct testimony? A. I won’t say that
518
there was a verbatim transcript made. A verbatim rec-
ord was made at a number of those and I made that record
in shorthand.
Q. You state that it was a verbatim record? A. I took
the notes in shorthand verbatim, correct.
Q. Mr. Wyckoff, did you ever dispute the authenticity of
. the notes of any labor organization on a recording—on a
negotiating or grievance session? A. I don’t recall that I
ever saw the notes of a labor organization to review them.
I saw them taking the notes.
Q. Now, was there ever a dispute about the authenticity
of your notes? A. I believe on occasions that they have
stated they would not be bound by any record that was
made, unless it was signed by them.
Q. Now, these typed—let me distinguish between the
stenographer’s notes and the typed resume in my ques-
tions so it will be clear:
These typed resumes were for your use in taking a po-
sition on what the intent cf the parties was; is that right?
A. That’s correct. Frequently a question arises as
518 to the intent of the negotiating parties and, in order
to be certain of the intent, you refer back in the file
to the minutes of what transpired.
Q. And then these are used to state a company posi-
tion in a grievance proceeding and the like; is that right?
A. Not only to state the position but to state the intent
of the negotiating parties at the time the rule was ne-
gotiated.
Q. You mean you take your notes and state that this is
evidence of what the intent of the parties was? A. That’s '
correct.
Q. Your own notes? A. Oh, sure.
Q. Your own resume? A. That’s correct. In fact, I had
occasion just recently where the Trainmen’s Organization
disputed the intent of a rule and I referred back in the file
to the intent of the negotiator and saw it was completely
contrary to what the Trainmen’s Organization contended.
519
520
And I went to him and asked him about it and he gave me
a sworn affidavit as to what his intent was.
The Court: Went to whom?
The Witness: This happened to be Mr. Beals.
519 The Court: Based on what your notes showed, he
gave you a sworn affidavit of what his intent was?
The Witness: That’s correct.
The Court: Mr. Beals is pretty eld-~ly now, isn’t he?
The Witness: Yes, he’s in his 70’s, I believe 75.
The Court: He retired just about the time the road came
out with the organization, or just before?
The Witness: Just before, I believe.
Mr. Shapiro: I have no further questions.
Further Cross Examination
By Mr. Milledge:
Q. I believe you statesd that the reason you changed
the practice was because of the shortage of personnel
caused by the strike; is that what you said? A. I said a
shortage of secretarial help.
Q. Your’e not telling the Judge that you were using
520 union stenographers to take down your notes at bar-
gaining sessions, are you? A. I’m not saying I was
using union stenographers, no. But those stenographers
were used for other purposes, to take the place of union
members who were out on strike when the strike began.
Q. All right. So the reason, you are telling His Honor,
that the reason you change this policy in 1963 was from a
shortage of manpower due to the strike? That’s your tes-
timony? A. That’s correct.
The Court: Well I have one question. I’m speaking of
the sessions when you used the tape recorder.
Were those out in the open, like Mr. Sheridan, my Re-
porter’s, gear is here?
The Witness: Yes, sir.
The Court: Or were they concealed microphones and
the recorder in another room?
521
The Witness: No, sir. The recording device was sitting
right on the table alongside of Mr. Switzer. In fact,
521 he asked—one of his first questions was, ‘‘Is this
thing operating?’’.
Mr. Shapiro: May I ask one further question, Your
Honor?
The Court: Yes, sir. I wanted to be sure in my mind
when this was that Mr. Switzer was present. What were
the dates of those two sessions? Did you state?
The Witness: If my memory serves me correctly, Your
Honor, they were June 18 and 22, 1963.
The Court: That’s what my notes showed but I wasn’t
sure it referred to this matter.
All right, thank you.
You may go ahead.
Further Cross Examination
By Mr. Shapiro:
Q. Do you recall any occasion on which there was a ques-
tion as to whether or not the tape recorder was on in a
mediation session? A. Yes, I do.
Q. What was that? When was that? A. That was a dis-
cussion with Mr. O’Neill and Mr. Holleran, who is
022 also a Federal Mediator. They participated in a
meeting with Mr. Thornton and myself and several
members of my staff. The tape recorder was sitting within
three or four feet of Mr. O’Neill’s arm. He could reach
out and touch it. There was a man sitting alongside of it
operating it and, after approximately ten or fifteen min-
utes, he wanted to know whether the machine was being
utilized. I told him it was.
Q. The discussion had gone on ten or fifteen minutes and
he stated— A. That’s right.
Q. And then what happened? A. He requested that the
machine be removed and I told him no, that I was making a
record of what transpired. Of course, that was obvious,
522 ,
or should have been obvious to him. He saw the machine
in operation, or should have seen it.
And when I would not remove it, why, he left the room;
he and the other Mediator, Mr. Holleran.
Q. All right, Mr. Wyckoff, will your company negotiate
without a Court Reporter present or a tape recorder?
A. We will meet with representatives of the Government
without a tape recorder or a Court Reporter present; but
any time that a union representative is present, a verbatim
record will be made of what transpires.
523 Q. Then your answer to my question is that—let
me be clear:
You will not negotiate with a union representative with-
out a means of making a verbatim transcript; is that right?
A. That’s correct.
Mr. Shapiro: Thank you, Mr. Wyckoff. I have no further
questions.
Redirect Examination
By Mr. Devaney:
Q. Mr. Wyckoff, before 1963 when the minutes were
taken by you or a member of your staff, was there any
occasion when the union representatives made any comment
about this practice? A. Yes, they observed the notes being
taken and I think, on one or two occasions, they requested
copies of the transcripts.
Q. There was no doubt that they were aware that this
was being taken? A. Oh, no. They knew it was being
taken. I don’t recall any protest of it being taken, but I
think they did request copies of the transcript.
Q. Now, in this meeting where you mentioned
524 these International officials, could you tell us who
some of those individuals were? A. As best I recall,
Mr. Leighty, Mr. Dennis; Mr. Leighty is of the Tele-
graphers’ Organization and also Chairman of the Cooperat-
ing Labor Organizations involved in the present work
stoppage.
Mr. Dennis, who is Grand President of the Clerks’ Or-
ganization.
Mr. Bernhardt, who is President of the—one of the shop
crafts.
Mr. Fox, who is President of System Federation 69.
Mr. Crotty, who is President of the Maintenance of
Way Employees.
That’s all I can recall at this moment.
Q. Was any comment made by any of those union
officials concerning whether a record was made of the
negotiations on any other railioad? A. Yes. Mr. Leighty
commented that—
Mr. Milledge: Excuse me. Objection; hearsay.
The Court: Objection sustained.
523
By Mr. Devaney:
Q. Was there an occasion later, Mr. Wyckoff,
525 when Mr. Leighty was attending a meeting at which
a Court Reporter was present? A. Yes. He and
Mr. Schoene, who is an attorney for the Railway Labor
Executives Association, attended such a meeting in Decem-
ber of 1963.
Q. Do you recall, Mr. Wyckoff, whether there was any
objection to the reporter being present at that time? A.
To my recollection, there was absolutely no comment made
at all about the recorder’s presence.
Mr. Devaney: No further questions,
The Court: Recorder or Reporter?
The Witness: Reporter, I’m sorry, sir—Reporter’s
presence.
Mr. Devaney: No further questions.
The Court: That was Mr. Rosenfeld or one of his asso-
ciates?
The Witness: Mr. Rosenfeld personally was there.
Mr. Shapiro: No further questions.
526 The Court: All right, sir, would you come down.
(Witness excused)
524
Mr. Devaney: Your Honor; that completes the evidence
that the defendant wishes to present at this time.
Mr. Shapiro: Your Honor, the first rebuttal witness for
the Government will be Mr. W. F. Howard, who testified
yesterday.
The Court: Mr. Howard.
W. F. Howard.
having previously been sworn, was recalled as a rebuttal
witness on behalf of the plaintiff, and further testified as
follows:
Direct Examination
By Mr. Shapiro:
Q. Do you recall, Mr. Howard, that you were placed
under oath yesterday? And you are still under oath. A.
Yes, sir.
Q. Could you state once again the organization with
which you are associated and your position in it? A. Tam
General Chairman of the Brotherhood of Railway and
Steamship Clerks, Freight Handlers, Express and
527 Station employees.
Q. Now, Mr. Howard, have you attended negotiat-
ing sessions on rates of pay, rules and working conditions
with the Florida East Coast Railway Company? A. Many
of them, beginning in 1937.
Q. And what kind of subjects were discussed in those
sessions that you have attended? A. Well, I was involved
in at least five mediation proceedings beginning in 1937.
The Court: °37 or ’57?
The Witness: °37, Your Honor.
The Court: That was the date you gave earlier?
The Witness: Yes, sir.
The Court: I took it 57; I’m sorry.
The Witness: And the last two were in the Spring and
Fall of 1962. And the °37 mediation case involved a com-
plete agreement. We had been certified as representative
7
Bass Seen nrennrena satiety
525
of the employees on April 10, 1937, and we began
528 negotiations in May, as I recall, in 1937 and they
terminated and we engaged in negotiations inter-
. mittently until an agreement was reached through media-
tion on December 20, 1937.
And we were also involved in revisions of those rules
in 1941, 1946, 1951; and we completely revised the agree-
ment again in 1962,
The Court: ’62?
The Witness: Yes, sir.
By Mr. Shapiro:
Q. Now, how did the parties keep track of the various
discussions in the negotiations you have described? A.
Well, in the 1937 negotiations, as I recall, Mr. Beals’ per-
sonnel staff consisted of Mr. F. L. Atkinson, who was the
Assistant to Mr. Beals. At that time, Mr. Beals was the
General Superintendent. And later, Mr. G. N. Holman,
neither of whom wrote shorthand and they made their
notes in the same manner that I—not in the same manner
I did, because I made mine in shorthand.
Q. Were your notes verbatim? A. No, they were not.
Q. Now, in the later negotiations, how did people
‘29 —how did the parties keep track of the various dis-
cussions? A. Well, when Mr. Beals’ staff was in-
creased and there was a stenographer on his staff, person-
nel staff, they made notes intermittently. But I have never
know of a verbatim report having been made.
Q. Now, how do you know the stenographer wasn’t taking
a verbatim record down? A. Because I observed him during
the negotiations. Asa matter of fact, being a stenographer
myself, they couldn’t have kept up with the conversation
that was going on.
The Court: They don’t always wait for—the second
fellow doesn’t always wait for the other one to stop talk-
ing, like they do in Court, do they?
NT a ea a ai el
526
The Witness: Well, as a rule, one person exhausted his
opinion before the other started out.
By Mr. Shapiro:
Q. Now, was this true—Did you participate in any nego-
tiating sessions at which Mr. Wyckoff was present? A,
Yes, beginning in 1954, Mr. Wyckoff was present. And
one of the notable agreements that we negotiated while
Mr. Wyckoff was on the staff was the agreement of
530 February 4th, 1959, dealing with automation. And
there certainly were no verbatim notes made during
those negotiations, which were quite extensive.
Q. How about the 1962 negotiations? A. No verbatim
notes were made. Each side made notes and I do recall,
as Mr. Wyckoff testified a few moments ago, that he did
make some notes in shorthand but they were not verbatim.
The reason why I recall him making notes in shorthand is
because we discussed the different systems used—as he
used as compared with what I used.
Q. Now, how do you know that his notes weren’t verba-
tim? A. He was sitting immediately in front of me and 1
observed him.
Q. Was he continuously taking notes as the conversa-
tion went on? A. No, he was not.
Q. What did you observe as the discussions were going
on? What was Mr. Wyckoff doing? A. Well, as the dis-
cussions were going ol, as we were trying to reach an
understanding on our agreement of certain language of
the proposed rules, we both would make notes of how we
would agree to change the language in certain rules, and
he would make notes. Sometimes he made notes in long-
hand that I observed.
531 Q. So that you concluded from this that he was
not making a verbatim record then? A. That’s cor-
rect.
Q. When was the first time you participated in a nego-
tiation at which someone was taking a verbatim record!
A. It was in June of 1963. I don’t recall the exact date.
Q. In June of 1963. Now, have you participated in me-
diation, Mr. Howard? A. I’ve participated in at lease five
mediation proceedings with the carrier—this carrier.
Q. Did you observe anyone from the company making a
verbatim record? A. No. And on the first occasion, there
was no one there qualified to take shorthand notes.
Q. How about on the later occasions? A. Neither in the
1941 mediation was anyone present.
Q. Now, did you understand that the company would
make available to you or to anyone else who desired it, the
resume that it had prepared? A. No, I never discussed it
with them. I had no occasion to use it because I had my
527
PE MT TT,
own notes.
Q. You relied on your own notes? A. Right.
532 Q. How does one acquire a copy of the transcript
prepared by the public Court Reporter? A. He has
to purchase it from the Reporter.
Q. Can anybody purchase one of those? A. As far as I
know, they can.
Q. So that the— A. I’ve never purchased one myself.
Q. If I wanted to purchase a copy of the negotiations
between the Florida East Coast Company and your organ-
ization in June of 1963, could I purchase one from the Court
Reporter? A. I assume that you could.
Q. So that the record is a public record? A. As far as
I know.
Q. Of your private negotiations? A. Correct.
Mr. Shapiro: I have no further direct questions of this
witness,
The Court: Do you have any questions, Mr. Milledge?
Mr. Milledge: No, Your Honor, I do not.
The Court: Cross-examine.
533 Cross Examination
By Mr. Devaney:
Q. Mr. Howard, did I understand you to say that you
knew that Mr. Wyckoff, in 1962, was not making a verbatim
LRT NENT TE POE
528
record because he sat in front of you? A. That’s right.
Q. Now, you also heard Mr. Wyckoff testify that he had
not made these minutes since 1960; isn’t that correct? A.
I don’t recall his testimony. —
Q. Now, prior to 1962, you said that you were positive
that Mr. Wyckoff did not make a verbatim shorthand
record.
Now, did he sit in front of you each time? A. He sat at
the left of me.
Q. Every time from 1954? A. At all conferences.
Q. Now, how would you know whether he was taking a
verbatim record or not, Mr. Howard? A. Well, I could
tell by watching him. When Mr. Beals or someone else was
talking, that he was not making notes. He made notes
intermittently.
Q. Is this man taking a verbatim record, sitting here,
Mr. Howard? A. I haven’t observed him.
Q. Now, did you say that Mr. Frank Atkinson
534 could not take shorthand, to your personal knowl-
edge? A. In 1937, he could not.
Q. You are positive of that? <A. I’m positive of that
because, in later years, he did learn to write shorthand.
Q. So that after 1937, he could take notes in shorthand?
A. Well, it must have been at least fifteen years after
that.
Q. So that, some time by 1952, he was taking shorthand;
is that not correct? A. I wouldn’t—I couldn’t pinpoint
the year, but I do know that he did learn shorthand some
years later, following some trouble he had with his throat
that the doctors wouldn’t let him talk for several months.
Q. Now—
The Court: Who is this?
The Witness: Mr. Atkinson.
The Court: Oh, yes.
By Mr. Devaney:
Q. Isn’t it true, Mr. Howard, that you ordered four copies
of the transcript of one of the meetings at which
TROLS salah Sasa” Soda
i sn aah,
529
535 Mr.—the Court Reporter’s name I don’t remember;
Sam Rosenfeld, is it? Is that the name of the Re-
porter? A. That’s the name of the Reporter but I did
not order any copies.
Q. You did not order any? A. I think that Mr. Win-
stead—
Q. Mr. Winstead— A. —ordered some copies.
Mr. Milledge: I missed that.
This is in 1963, I assume?
The Witness: Yes.
Mr. Devaney: That’s in 1963.
Mr. Milledge: All right.
By Mr. Devaney:
Q. I wasn’t certain of the date of this last mediation
that you referred to, Mr. Howard. What was that year?
A. 1962.
Q. 1962? A. We had two mediation proceedings during
that year.
Q. This is the one you said that the agreement was
536 completely revised? A. With the exception of a
few rules, but we rewrote, reprinted, the entire agree-
ment.
Q. Now— A. That was in the Spring of 1962.
Q. Spring of 1962? A. Yes.
Q. Now, Mr. Howard, are you willing to meet with the
company in negotiations with a Reporter present? A. No,
T am not.
Q. Are you wiliing to meet if the record is made by some-
body who is not a Court Reporter per se? A. No. I don’t
think that I would be agreeable to meeting with them where
any verbatim record was kept, because I don’t believe it’s
conducive to good-faith bargaining.
Q. Yet you make your own varbatim record of at least
portions of the negotiations? A. No, I don’t make any
verbatim records.
Q. Why do you take—what do you write in shorthand?
A. The understanding we had about whether a certain
es SNA SNE RAAT RN TEEPE UIT
od = se ye we ~
proposed rule would be accepted or rejected or passed over
to some later date for discussion of the proposed rule;
the language; the change in the language of the proposed
rule, which is in writing.
537 Yes. But how do you write that understanding,
Mr. Howard, without writing down what has been
said? A. I just make a resume. In the case of change in
language, I put that down exactly as we disenssed it.
Q. I see. So it’s the—In other words, you don’t object
to having part of it verbatim but you don’t want other
parts of it verbatim; is that correct? A. No. The only
reason why I make any record at all is it’s customary for
the carrier to type up the rules that we agree upon and
I check that back against my notes to see that that’s ex-
actly what we agreed upon.
Q. Now, would it also follow, Mr. Howard, if the company
prepares this, that they must have some record of what
has been agreed upon in order to prepare the written agree-
ment itself? A. I didn’t understand the question.
The Court: Do they need some notes to write up from
too?
The Witness: Yes, they make notes.
Mr. Devaney: So they need those notes—
The Court: He is asking do they need them?
538 By Mr. Devaney:
Q. They need the notes to write up the agreement, do
they not, Mr. Howard? A. That’s right. And many times,
I’ll dictate the proposal myself and many times, more often
than not, those are written in longhand.
Q. Now, what is written in longhand, Mr. Howard? A.
These rules that we’ve changed around.
The Court: The final formulation of the rules?
The Witness: Correct. Many times it will be written in
longhand and sent out to a stenographer outside the room
and typed up and is brought back in and we have further
discussion on it, and we may make some changes beyond
that.
530
531
Mr. Devaney: No further questions, Your Honor.
The Court: Anything further?
Mr. Milledge: No, sir.
The Court: Come away, Mr. Howard.
539 Mr. Shapiro: May I have one more question?
The Court: Oh, I’m sorry.
Redirect Examination
By Mr. Shapiro:
Q. Mr. Howard, why do you object to having a commer-
cial Court Reporter present? A. I would object to a com-
mercial as well as one employed by the company making
a verbatim record, because I’ll have to agree with the opin-
ion expressed by Mr. Reynolds, Assistant Secretary of
Labor. It seems that the person doing that is more in-
terested in making a record than they are in bargaining.
Q. Do you think there’s any difference between a record
made by the public Court Reporter and the record made
by the transcript—a record made by a stenographer em-
ployed by the company?
Mr. Devaney: Your Honor, I object to this. I think this
ealls for a conclusion.
The Court: You opened it up on your cross-examination,
Mr. Devaney.
You may answer.
540 The Witness: You mean a verbatim record?
Mr. Shapiro: Yes.
The Court: He’s asking do you make any—do you draw
any distinction between one made by a regular company
employee and one made by a public stenographer?
The Witness: Not a bit.
The Court: Sir?
The Witness: Not a bit; I make no distinction.
The Court: Well, I can suggest one that you suggested
in your earlier testimony; that anybody that wanted one
might be able to procure one from the public stenographer,
“4
532
unless there was an agreement that he was instructed not
to release it to any member of the public.
The Witness: I’ve never had any desire to secure one
from either side.
541 The Court: I understand that.
The Witness: If one had been made.
Mr. Shapiro: I have no further questions, Your Honor.
Thank you, Mr. Howard.
(Witness excused)
Mr. Shapiro: I would like to call one more witness. Mr.
R. M. Cooke.
R. M. Cooke,
having previously been sworn, was recalled as a rebuttal
witness for the plaintiff and further testified as follows:
Direct Examination
By Mr. Shapiro:
Q. For the record, will you state your name? A. R. M.
Cooke.
Q. And you recall that you are still under oath from
yesterday? A. Yes, sir.
Q. What organization are you with, sir? A. I’m Gen-
eral Chairman of the Brotherhood of Railway
542 Carmen of America and President of System Fed-
eration No. 69.
Q. This is the shop crafts organization? A. Yes, sir.
That’s the shop crafts organization.
Q. Now, you represent—do you participate in negotia-
tions involving all of the shop crafts, all five unions? A.
Yes, sir.
Q. It is five? A. It’s six, really.
Q. Six.
How long have you been participating in the negotia-
tions? A. Well, as General Chairman, since November Ist,
1959; and as President of System Federation 69, several
.
7
*
4
2
4
4
i
is
eo
Ae
a
4
*
533
months later, eight or ten months, I can’t recall the exact
date that I was made President.
Q. Now, have you attended negotiating sessions with
the Florida East Coast Railway Company on changes in
rates of pay, rules and working conditions? A. Yes, sir.
Q. How were the records kept at these sessions for your
organization? A. (No response)
Q. I’m sorry, that is a pretty vague question.
How did the parties keep track of the negotiations?
543. A. Prior to June of 1963, merely by keeping our
own personal notes of pertinent points from time to
time; but, beginning in June of 1963, there was a Court
Reporter present.
Q. Did the company have a stenographer present at these
negotiating sessions? A. No, sir.
Q. They did not have a stenographer present for your
organization? A. Not at any that I attended, no, sir.
Q. Then no verbatim record was being prepared of any
kind? A. None that I saw being prepared, no, sir.
Q. Now, you mentioned that up until June of 1963, no
verbatim transcripts were prepared. What happened in
June, 1963? A. Well, at a meeting in June, 1963, between
the General Chairman of System Federation 69 and Mr.
Wyckoff, there was a Court Reporter present.
Q. Did you say anything about that Court Reporter? A.
Yes, sir. We began the session by voicing an objection to
his presence.
Q. What happened then? A. Well, Mr. Wyckoff in-
formed us that the Reporter would remain there and
344 would take the minutes of the session, and that also
in the future that such sessions would be recorded.
Q. Have you ever seen a transcript of this session? A.
Yes, sir, I have seen a copy of it, of the session.
Q. I show you a document entitled ‘‘Conference Between
Florida East Coast Railway Company and Federation Sys-
tem 69”’, and listing several labor organizations, ‘‘Held at
the Offices of Florida East Coast Railway Company, at
me.
534 :
King and Malaga Streets, St. Augustine, Florida, on Tues-
day, June 25, 1963, at 1:00 p.m.’’.
Now, is this the transcript of the meeting you have de-
scribed to us? <A. Yes, sir, this is the transcript made by
Mr. Rosenfeld.
Q. Who was Mr. Rosenfeld? A. Mr. Rosenfeld is a
Court Reporter, I believe from here in Jacksonville.
Mr. Shapiro: I ask that this be marked as Plaintiff’s
Exhibit—
The Clerk: No. 8. See if there is any objection.
Mr. Shapiro: I will show it to him. (Handing instru-
ment to Mr. Devaney)
(Thereupon, the referenced document was marked Plain-
tiff’s Identification Ex. No. 8.)
545 Mr. Shapiro: I offer this in evidence.
Mr. Devaney: Your Honor, I object only to the
materiality of putting the entire transcript in. Otherwise,
T have no question of the authenticity of the copy offered,
but I don’t see that it’s material to this case; but if it is
desired to put it in, I have no objection to its authenticity.
Mr. Shapiro: I shall by further questioning demon-
strate the materiality of it, since Mr. Cooke has testified
concerning the presence of the Court Reporter and the
objection by the company—or the objection by the labor
organization and the statement by the company that there
would be Court Reporters present. I think that this would
be most important to that testimony.
Now, we can limit the offer of the item in evidence to
certain pages at the beginning.
The Court: Oh, well, put the thing in. I’m certain it
isn’t offered as evidence of the truth of any maiters as-
serted there but as, I suppose, to show how the conference
was conducted.
546 Mr. Shapiro: Yes, Your Honor, and to—
The Court: I do note it opens up by Mr. Wyckoff
indicating who Mr. Rosenfeld is and Mr. Cooke voicing
i an objection to his being present but going ahead in spite
of him.
I’ll receive it. It may have some evidentiary value. It’s
received, No. 8 for the plaintiff.
(Thereupon, Plaintiff’s Identification Exhibit No. 8 was
received and filed in evidence.)
By Mr. Shapiro:
Q. Mr. Cooke, would you examine this and tell me the
point at which the discussion over the presence of the Court
Reporter ended?
The Court: I think I may determine that mayself.
Mr. Shapiro: You certainly can, Your Honor, and—
The Court: I think that we don’t need the witness to do
that.
Mr. Shapiro: Well then, on that basis, I’ll withdraw the
question.
547 The Court: Do you want to limit your offer to
those pages; is that it?
Mr. Shapiro: Yes, sir, that was the point.
The Court: Let’s just understand that that is the por-
tion of it and the actual negotiations of it are not what we
are talking about. It’s the first several pages there.
Mr. Shapiro: Actually, I think—I was going to develop
it through the witness but I believe it’s pages 1 through 4.
The Court: Yes, sir.
Mr. Shapiro: Of this copy.
The Court: Yes, sir.
Mr. Shapiro: I’ve seen another copy which was different.
By Mr. Shapiro:
Q. Now, Mr. Cooke, was anything said at this conference
by the company about having insufficient staff to have—to
use their former procedures for keeping track of the
548 negotiations? A. No, sir.
Q. What did the company say? A. Well, Mr.
Wyckoff recalled two previous instances in which a Court
IRAE LNT SI OURMES EEN NOE: AE IIT I
536
Reporter had been used, and neither of these meetings
actually pertained to conferences with System Federation
69.
At one of the conferences to which he referred, the Gen-
eral Chairman of System Federation 69 was present at
that meeting. That was in Mr. Ball’s office herein Jack-
sonville.
Q. When was that? A. On a previous date. I don’t re-
call the dates personally but—
Q. Would your recollection— A. He refers here to the
two meetings of March 15 and May 10. It was one of those.
Q. And what did you respond to that? A. Well, I told
Mr. Wyckoff that those were not conferences on initial wage
notices or Section 6 notices.
Q. Why did you object to the presence of the Court
Reporter? A. Well, we objected simply because it doesn’t
set up an atmosphere in which collective bargaining can
be carried on. It makes everyone more—makes them try
harder to make a perfect record, rather than to try
549 to make progress in the negotiations.
Q. Did Mr. Wyckoff make any statement in this
conference about the company’s policy in the future con-
cerning Court Reporters? <A. Yes, sir. At the conclusion
of our argument about the Court Reporter, he informed
us that such sessions would be recorded by a Court Re-
porter from that date on.
Mr. Shapiro: I have no further questions of this witness.
The Court: Mr. Milledge?
Mr. Milledge: We have no questions, Your Honor.
The Court: Mr. Devaney?
Cross Examination
By Mr. Devaney:
Q. Mr. Cooke, when did you say the first meeting was
that a Reporter was used that you attended? A. That was
the meeting in Mr. Ball’s office, either in March or May
of 1963.
537
Q. I show you this. Does this refresh your recollection?
This shows the meeting was held March 15. Does that
appear to be the one you are referring to? (Indicat-
550 ing) A. Yes, sir, I believe this is; to my recollec-
tion, this is the first one that I attended that was
recorded by a Court Reporter.
Mr. Devaney: Would you mark that, please.
The Clerk: U for identification.
The Court: Go ahead and mark it in evidence. Unless
there is some objection you want to voice, we will let the
Clerk go on and mark it in evidence now. This is repre-
sented to be the first one, Mr. Devaney, where a Reporter
was used; is that right?
Mr. Devaney: The first one Mr. Cooke attended.
The Court: All right.
(Thereupon, the referenced document was received and
filed in evidence as Defendants’ Exhibit U.)
By Mr. Devaney:
Q. While he’s looking at that, Mr. Howard, may I ask
you this—I mean Mr. Cooke. I know you are not Mr.
Howard I apologize.
You said that prior to 1963, you were not aware of
551 a verbatim record being made; is that correct? A.
That is correct. I was not aware if one was being
made.
Q. And your presence at the negotiations as General
Chairman goes back to 1959 A. That is correct. Novem-
ber Ist, 1959.
Q. Were you—and what you say about not being aware
would apply to the entire period from 1959 to ’63? A. Yes,
that’s correct.
Q. In other words, you simply do not know whether any-
one representing the company did or did not make a steno-
graphic record of the meetings? A. No, sir. I’m not aware
that any such record was being made at any meeting I
attended.
Q. At various meetings, did you act as spokesman, Mr.
Cooke? <A. Yes, sir, at meetings where System Federa-
tion 69 was concerned, I usually acted as spokesman.
Q. Now, at such times, does this keep you pretty well
occupied in domg the speaking and looking at-your papers
and other documents? A. Yes, sir, that’s right.
Q. You don’t have much occasion to look around to see
what your opposite members are writing or whether
552 ~«they are not writing? A. Weil, yes. I have looked
around, Mr. Devaney, and I’ve seen them writing.
I know that at least notes were being taken by various
people, by both sides.
Q. Yes. But what I meant is, you don’t have enough
time to watch them to see whether they are missing words?
A. No, sir. I do not, no, sir.
The Court: I think—I must say that it would be pretty
hard in a conference room around a conference table and
not know whether or not somebody is making verbatim
notes. It’s not like observing everything that goes on on
a footbali field or out in the streets or something. A few
people in the room; I don’t see how—I understand that all
he says is that he didn’t see any. He might have been
occupied with other things, but I think there’s a conflict of
testimony as to what occurred, is what it comes down to.
By Mr. Devaney:
Q. Now, do you—
The Court: I would say this for the record, something
that hasn’t come out; it may be in the record and may not
be known to you, Mr. Devaney.
553 Mr. Sam Rosenfeld is a stenotype reporter. His
taking notes of the proceeding might be a little more
evident to everybody who would glance around than it
would be to somebody sitting over there with a pad on the
table in front of them. I say that because that may not be
something that you are aware of.
Sele a Nin sale
539
Mr. Devaney: Thank you. No, I don’t believe that was
evidence on the reecerd, Your Honor.
I don’t believe I have any further questions of Mr. Cooke.
Mr. Shapiro: Mr. Devaney, may I have that exhibit you
were examining? Do you want to use it?
Mr. Devaney: Yes. I’m sorry.
The Clerk: Let me mark it.
Mr. Devaney: This has been marked as U.
The Clerk: I didn’t get it back to put it in evidence.
(Marking instrument)
By Mr. Devaney:
554 Q. Do you wish to look at this further before I offer
this as Defendants’ Exhibit U, as being the tran-
script of the first meeting at which you attended where a
Court Reporter was present? A. Yes, sir, I attended this
meeting. I believe I testified that the other one was the
first one in which System Federation 69 alone was involved
in negotiations.
Q. I see. A. This was the entire group.
Q. This involved System Federation plus others? A.
That’s right, others.
Mr. Devaney: I offer this, Your Honor, as Defendants’
Exhibit U.
The Clerk: It’s in.
The Court: It’s already received.
Mr. Devaney: Thank you.
No further questions.
Mr. Milledge: I think one more question ought to be
asked, Your Honor.
555 The Court: All right.
Redirect Examination
By Mr. Milledge:
Q. The people on behalf of the carrier at these other
negotiating sessions were all people actively participating
in the negotiations; were they not?
HOT ALERT OLS
a
540 |
In other words, did they ever have a person just sitting
there, a lady or a man, doing no participating in the
negotiation but just writing continuously? A. (No re-
sponse)
Q. Did they ever have that situation? A. I’ve never
observed anyone sitting and writing continuously, no.
Mr. Milledge: All right.
Mr. Shapiro: I have no further questions.
(Witness excused)
Mr. Shapiro: This concludes the rebuttal case for the
Government, Your Honor.
The Court: Any surrebuttal?
556 Mr. Devaney: Yes, Your Honor. I would like
to recall Mr. Wyckoff.
The Court: Come back.
R. W. Wyckoff,
having previously been sworn, was recalled as a witness
on surrebuttal for the defendants and further testified as
follows:
Direct Examination
By Mr. Devaney:
Q. Mr. Wyckoff, when you first joined the Florida East
Coast as a member of the negotiating group, were you the
only person who could and did take shorthand minutes for —
the company? A. No, there were usually two others be-
sides myself who were qualified to take shorthand notes.
Q. Who were these others, Mr. Wyckofff A. One wasa _
young man by the name of John Douglas, andthe other .
was Mr. Frank Atkinson, who could also take shorthand
notes.
Q. Could either or both of these individuals take short-
hand fast enough to make a verbatim record? A. I per-
sonally know that Mr. Douglas could because\he recorded
_ ———
541
frequent investigations before he went to St. Augus-
tine.
557 Q. What do you mean by ‘‘investigations’’? A.
Well, they are on the form of a trial. A man appears
under charge. He brings his evidence or the railroad
brings the evidence first as to the rule infraction. The
individual under charge presents his evidence to attempt to
to exonerate himself.
Q. And you say Mr. Douglas had made records of these
investigations? A. Both Mr. Douglas and myself.
Q. And at these investigations, you made a verbatim
report? A. That’s correct.
Q. Now, in these negotiations in which Mr. Howard was
present, did you ever have occasion to observe and see
whether he was writing in shorthand, Mr. Wyckoff? A.
Whether Mr. Howard was writing shorthand?
Q. Yes. A. No. Usually I was taking the notes peer
and, on occasion, Mr, Douglas did also; but I never paid
particular attention to what Mr. Howard was writing. I
knew that he was making notes. That was the most I could
say.
Q. Could you see what he was writing from where you
were sitting? A. No, I couldn’t. The office was
558 so arranged that Mr. Howard or the negotiator from
the union sat directly opposite Mr. Beals, who nego-
tiated for the railway. And to the left was a separate table
at which four individuals from the carrier were seated,
four and on occasions five.
Q. Now, did this arrangement continue all the way up to
1960? A. Yes, as long as Mr. Beals was there, that ar-
rangement continued.
Q. What was the arrangement after 1960? A. There was
a separation made of the personnel functions and Mr.
Holman was made Director of Personnel. He moved in a
separate office but somewhat the same procedure was
followed.
Q. Did you sit opposite Mr. Howard or in front of Mr.
==
Howard? <A. Well, I believe it was in November, 1960,
I was made Assistant Director of Personnel and I sat |
usually immediately adjacent to Mr. Holman. Now, there
542
were other people on the staff at that time who could take
shorthand notes and did take shorthand notes.
Q. Now, where—Did Mr. Howard always sit opposite
you, right directly across the table from you, Mr. Wyckoff?
A. You mean during the time Mr. Beals was negotiating?
Q. No, from 1960—after 19601 A. Well I sat off
559 to the left a little more. He didn’t sit directly op-
posite me, no.
Q. This was a table with nothing between you twot
Could he see what or whether you were writing on all
oceasions? A. Prior to 1960, I don’t see how he could have
because we kept the working agreements on the forepart of
the table and usually that was stacked maybe a foot and a
half high, so we would have them all present regardless of
what might come up. And the balance of the table, we
utilized for writing purposes. So how he could have seen
what was going on is beyond my comprehension.
The Court: Look, let me ask you something. Let’s have
it one way or the other:
Rither, as I understood you to contend before, you were
in there openly taking notes where everybody could know
it; now you were surrounded by papers and sneaking,
taking notes by stealth.
Now, which is it?
The Witness: Your Honor, it wasn’t a matter of taking
notes by stealth.
The Court: Let’s have it one way or the other.
560 The Witness: It wasn’t a question of taking |
notes by stealth. We sat right out in the open. |
The Court: You just said he couldn’t tell what you were
doing because you had papers stacked up a foot and a half
high.
Now, which is it?
The Witness: Your Honor, he could see us writing, but
_—
543
whether he could see us writing continuously or not, I can’t
say. I don’t see how he could.
The Court: I just want your final version of this now
and then we’ll go ahead to something else.
The Witness: Your Honor, I’m trying to give it—
The Court: All right.
The Witness: —as honestly as I know how. I tran-
scribed—I recorded the notes verbatim. When I transcribed
them, I gave a resume form.
By Mr. Devaney:
Q. Now, were there occasions when there was some
§61 comment made about the company representatives
taking these notes in shorthand, Mr. Wyckoff? A.
There was a request, as I said before, on one or two
occasions to my knowledge that they be furnished with a
copy of the transcript.
Q. This was before—we are not talking about a Court
Reporter now? A. That’s right.
Q. Was there any comment on any occasion to indicate
that they were aware that you were taking these notes in
shorthand?
Mr. Milledge: I object. This is hearsay, if nothing else.
The Court: Go ahead and let him answer. :
The Witness: Well, I know that the representatives were
familiar with the fact that we were taking the notes in
shorthand because frequently the negotiator would refer
to us and ask what was said. We wouldn’t read it back
necessarily but we would tell it in a short version of what
had transpired. So I know they were familiar with the fact
that notes were being taken.
By Mr. Devaney:
562 Q. And this—there were requests by union repre-
sentatives of the individuals making notes to clarify
what had been said previously; is that correct? A. Either
union representatives or Mr. Beals, who was negotiating
for the railroad.
eas
044
Q. Now, does Mr. Howard, or has Mr. Howard since
1954 occupied the same position at the table with respect to
you on every negotiating session? A. Up to 1960, to the
best of my recollection, yes.
Q. In other words, he always took a sort of pre-assigned
position and you took a pre-assigned position? A. That’s
correct.
Mr. Wyckoff, I hand you this and ask you if this is a
copy of the transcript made of the meeting you previously
referred to between the company and various international
union officials? A. Yes, it is; on July 24, 1963.
Mr. Devaney: I ask that this be marked as—
The Clerk: V.
(The referenced document was marked Defendants’
Identification Exhibit V.)
(Mr. Devaney tendering instrument to Mr. Shapiro)
563 By Mr. Devaney:
Q. Mr. Wyckoff, are the investigations that you referred
to earlier, are these the sort of cases that go to the Ad-
justment Board? A. Yes, they are quite frequently.
Q. And as I recall, you said that you did keep minutes
of those meetings also? A. They are recorded and tran-
scribed verbatim.
Q. And the transcription is verbatim as well as the taking
of the notes? A. That’s correct.
Q. Are those transcripts made available to the union?
A. In the event the man under charge is disciplined, he
is furnished with a copy of it.
Q. The individual? A. That’s correct.
Q. What is the physical set-up, Mr. Wyckoff—
The Court: This you are talking about is making a
record of his trial?
The Witness: That’s correct.
The Court: For violation of rules or whatever it is?
564 The Witness: That’s right.
The Court: The discipline hearing.
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545
By Mr. Devaney:
Q. Now, what is the physical set-up at these hearings?
Where are they held ordinarily? A. They are held—
Mr. Milledge: Excuse me. I object. .
The Court: I suppose these people will concede that
they make stenographic records of these disciplinary hear-
ings and trials. It has nothing to do with this.
Let’s move on.
Is that correct? Do you stipulate this?
Mr. Milledge: Yes. Yes, often with tape recorders and
various devices.
Mr. Shapiro: The Government has no knowledge, Your
Honor.
The Court: Sir?
565 Mr. Shapiro: The Government has no knowledge.
The Court: Well, I would suppose, just as a mat-
ter of common sense, I would guess they would.
Mr. Shapiro: I would expect so.
The Court: If he is fined or going to lose his job, they
make a transcirpt of it. There may be an appeal. The
same reason we are making a record in this proceeding.
Mr. Devaney: I offer this as Defendants’ Exhibit—
The Court: It has nothing, I can see, to do with whether
you have a Reporter present when you are negotiating
rules, rates of pay and working conditions.
Mr. Devaney: Your Honor, it does not have any rela-
tionship as to whether we do or do not except in a physical
sense, and as to who makes the same record, where the
same individuals are used for both purposes. It was
merely my purpose to show that the same physical con-
dictions by and large existed at these meetings that existed
in the negotiations.
566 Mr. Milledge: Of course, we can’t stipulate to that.
The Court: No, I understand.
Mr. Devaney: It has been objected to and TI haven’t
pursued it, Your Honor.
546
The last point is the offer of the document marked as
Defendants’ Exhibit V.
The Court: What it is?
The Clerk: V.
The Court: Let me see it.
(Clerk tendering instrument to the Court)
The Court: Tell me what it is you want me to take
note of in here? This is about a hundred or more pages
of reading material.
Mr. Devaney: Yes, this is the meeting that Mr. Wyckoff
testified to between the company and the officials of the
various international unions. It shows, Your Honor,
that—
567 The Court: Well, is it mainly to show that there
was a Reporter present and a transcript was made,
or do you want me to take note of something said?
Mr. Devaney: That the Reporter was present, that these
international officials did express an objection, but then
proceeded with the meeting. That is the primary, purpose
of all the transcripts; I don’t see that any of them have
any other purpose than that.
Mr. Shapiro: Your Honor—
Mr. Milledge: We will stipulate to that.
Mr. Shapiro: Your Honor, if the exhibit is to be received,
I think it’s important that the objection by the union rep-
resentatives and the entire discussion of whether or not
there should be a Reporter should be specifically noted.
Now, I haven’t had a chance to examine it fully but I
think it runs from about page 1 through 10.
The Court: Well, I’ll read those pages. If I’m
568 expected to read everything in a hundred-page tran-
script, why, I would like to know it. Mark it in
evidence, please.
(Thereupon, Defendants’ Identification Exhibit V was
received and filed in evidence.)
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547
Cross Examination
By Mr. Milledge:
Q. Mr. Wyckoff, it’s fair to say that if you had such a
transcript of a negotiating session before 1963, that you
would have brought it today; isn’t that a fair assumption?
A. No, it isn’t necessarily a fair assumption.
Q. Well— A. There may be—
Q. There aren’t any, are there? A. Sir?
Q. There aren’t any, are there? Any transcriptions of
any negotiating sessions prior to 1963? A. Now, I assume
you have reference to my notes, my shorthand notes; is
that correct?
Q. I have reference to a transcript. There aren’t any
transcripts, are there? A. There are resumes of what
transpired during the course of the negotiating sessions,
and there may be some of my shorthand notes in the file.
I’m not in position to say now without reviewing the
files.
569 You didn’t bring any of your shorthand notes
of these verbatim things either, did you? A. I don’t
have them with me, no.
Q. No; all right.
Mr. Shapiro: No further questions.
Mr. Devaney: Nothing further, Your Honor.
The Court: Come down.
(Witness excused)
The Court: Do you have any further evidence to offer?
Mr. Devaney: I’m sorry. We have no further evidence,
Your Honor.
The Court: Both sides now announced closed?
Mr. Shapiro: Now closed, Your Honor.
Mr. Milledge: Yes, sir.
The Court: About how long do you gentlemen ex-
570 pect to take in the argument of this matter?
Mr. Shapiro: I think, Your Honor, that the Gov-
548
ernment should be able to present its main contentions in
a half-hour, or perhaps less.
The Court: How long would you want, Mr. Devaney?
Mr. Devaney: Well, we will accomodate ourselves to
whatever the Court feels is a reasonable time, Your Honor,
We will try to be as brief in any event as possible. I would
think that—
The Court: Something in the order of a half-hour?
Mr. Devaney: If the plaintiff wants thirty minutes, :
would say we would limit—
The Court: I haven’t asked Mr. Milledge and Mr. Rut
ledge. They may want some time, along with Mr. Shapiro’s
opening argument or in reply. They are here and they
want to be heard.
Mr. Milledge: I think probably ten minutes, but
571 I think, at the outside, fifteen, probably ten.
The Court: Well, we have been in here since 9:30.
Maybe you gentlemen would like to take about five or ten
minutes rest.
We might be more comfortable if we took a brief rest-
break at this point and be prepared to proceed in about ten
minutes after the hour. That’s seven or eight minutes.
(Short recess)
The Court: One suggestion I make is what you not
spend too much time initially at least on the jurisdictional
question, major v. minor disputes question, except to the
extent that you think it may differ from the Trainmen case,
in which I went through this matter a couple months ago.
Mr. Shapiro: Yes, Your Honor.
The Court: You may have to reply extensively on this
point but I think, as far as the argument would parallel
the argument in the Trainmen case, I think I have that
pretty clearly in mind as to the ground on which
572 you would urge that there is jurisdiction and that it
is a major as opposed to a minor dispute. That may
save some time.
yt hose weS
TEL ) ae ms 5 SN
549
I have some tentative—I have necessarily reached some
tentative conclusions about that, which may speed up your
presentation of it. Mr. Devaney may raise some other
questions in his argument that would require you to answer
him on that point, but you just hit that quickly and lightly,
I would think.
Argument by Mr. Shapiro
Mr. Shapiro: I can hit that very quickly and lightly, Your
Honor, because it has been demonstrated by the answer
and by the evidence in this record that the carrier at pres-
ent is not operating under its so-called ‘‘Conditions of
Employment.’’ It’s operating under the ‘‘Uniform Work-
ing Agreement”’ of September 24, 1963, and under the basic
bargaining agreements for the operating crafts and classes,
as amended by the notices of November 2nd, 1959.
The ‘‘Conditions of Employment’’ become relevant here
primarily as a matter of the scope of relief in the
573 event relief is granted, because the carrier has indi-
cated quite plainly in the testimony that if it is en-
joined from operating under the ‘‘ Uniform Working Agree-
ment’’ or under the operating agreements as amended by
the November 2nd, 1959 notice, it will simply go back to
the ‘Conditions of Employment’’. So it’s a question of
how it relates to the scope of relief, but the immediate
issues here are really confined to the Section 6 notices pro-
posing abolition of the union shop and proposing the ‘‘ Uni-
form Working Agreement’’. Those are very plainly major
disputes.
Now, I don’t think we have to dwell too long on what has
been admitted in the complaint and answer; that July 31,
1963, the union shop agreements for the seventeen organiza-
tions listed in the complaint were proposed for cancella-
tion ; that meetings took place; that bargaining broke down
over the Court Reporter issue; that the services of the
Mediation Board were invoked within ten days after the
last conference broke up on August 29, 1963; and that on
September 9, 1963, the carrier, at the very outset of the
550
invocation of the Board’s jurisdiction, announced that it
considered the agreements to be cancelled; that it
574 refused to restore the status quo and that it in-
formed the National Mediation Board in effect that
it did not have any jurisdiction because the labor organiza-
tions were not in any position to invoke the Board’s
services. ;
Although the Board offered mediation by its letter of—I
believe—well, by letter in October, the carrier replied on
October 15 that it considered the agreements to be cancelled.
It has also been established that, as far as we can teil
on the record now, the cancellation of the union shop agree-
ment does not appear'to apply to one organization, the
American Train Dispatchers.
The carrier’s position on the union shop matter is that
there is nothing left to mediate; that, as its letter of Octo-
ber 15, 1963, indicates, Exhibit 9 to Mr. Thompson’s aff-
davit, the only way that the union shop matter can be raised
again is by a new Section 6 notice.
Now, with respect to the September 24, 1963 ‘‘Uniform
Working Agreement’’, we have a similar history. The
agreement was proposed. The parties met on October
28. I’m sorry, I think they met a little earlier than
575 that but, at any rate, the agreement was put into
effect notwithstanding the fact that there had been
a timely invocation of the Board’s services; and the car-
rier again insisted that the Mediation Board was without
jurisdiction. In fact, the answer which has been filed here
has as one of its defenses that the Mediation Board has no
jurisdiction in the circumstances.
I’ve already said that the September 24 notices are what
the carrier states to be in effect now.
Now, we have had a great deal of trouble with these
words ‘‘in effect’’, but at this point, it seems to be fairly
plain that, whatever the carrier means by ‘‘in effect’’,
whether it means what it’s actually operating under or
whether it means what’s on a piece of paper but dormant,
Ta ee ae 2s eit ors
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551
the September 24 ‘‘Uniform Working Agreement’’ is in
effect for the non-operating organizations and for the
International Association of Railway Employees.
For the operating organizations, it’s the basic agree-
ments as amended by the November 2nd, 1949, notices by
the ops.
Since the testimony is that the carrier would revert to
the ‘‘Conditions of Employment’’ and since the testi-
576 mony has also shown that the ‘‘Conditions of Em-
ployment’’ of September 1, 1963, are substantially
the same as the ‘‘ Uniform Working Agreement’’, the ‘‘Con-
ditions of Employment’’ become relevant to the case insofar
as we are concerned with the scope of the decree.
If the carrier is required to restore the status quo, it
would simply go back to these—as I’ve already said, to
these ‘‘Conditions of Employment’’, thereby achieving in-
directly what it cannot achieve directly through a Section
6 notice. since it’s already established that the conditions
are substatntially the same as the ‘‘Uniform Working
Agreement’’, with a few differences relatively minor in
nature as far as the actual rates of pay, rules and working
conditions—the real heart conditions, pay, seniority, hours
of work, holidays and the like. The things that form the
heart of the collective bargaining agreements are the same
as the ‘‘Conditions of Employment”’ and the same in the
“Uniform Working Agreement’’.
Now, this carrier has never attempted, we believe, and
the evidence we believe will show this, to comply with the
requirements of Section 6 of the Railway Labor Act
577. and Section 2, Seventh of the Act, insofar as its
‘*Conditions of Employment’’ are concerned. It has
used these ‘‘Conditions of Employment’’ as a means of
evading the requirements of the Act and, indeed, evading
the requirements of Public Law 88-108 and evading the
ruling by Judge Youngdahl in April of last year in the
Section 10 case which was brought against the carrier.
Each time it has been told to do something to restore the
RO AHP?
552
status quo, the only thing that has happened is that it
has gone back to these ‘‘Conditions of Employment’’. In
fact, it’s plain that the only thing it ever did operate under
were the ‘‘Conditions of Employment’’ and this was the
situation until it finally put into effect the ‘‘ Uniform Work.
ing Agreement’’; and finally after a great deal of hemming
and hawing, decided that it preferred the December 2nd,
1959 arrangement for its operating organizations to its
former proposal of September 25, 1963.
Your Honor will recall that that September 25, °63
notice was served on the operating organizations and that
it’s nothing more than the ‘‘Conditions of Employment”
transformed into permanent agreement for the operating
organizations.
578 The carrier abandoned that proposal and it seems
to have done so categorically on March 9, 1963,
after Your Henor’s decision in Brotherhood of Railway
Trainmen v. the Florids Fast Coast Railway Company.
At one time, this carrier actually seemed to have in effect
two sets of rates of pay, rules and working conditions for
its operating employees.
On February 25, 1963, you will recall from Mr. Wyckoff’s
testimony that they had written a letter informing the
carrier that—informing the labor organizations that the
September 25 notice was in effect, except as modified by
Your Honor’s decree in No. 260; that the November 2nd,
1959 notices were in effect. And apparently the carrier
was at that time working under the ‘‘Conditions of Employ-
ment’’,
What we have here is a proclivity to twist and turn back
and forth among the several possibilities that the carrier
set up for itself in an effort to avoid the requirements of
the Railway Labor Act and to shake itself free from the
collective bargaining agreements, which it finds unsatis-
factory.
Now, the carrier, I think the evidence will show,
579 cannot be justified in its contention that all it has
done was put upon it by the strike in January 1963.
PRETEEN AO PEA POR IET: ONY RE NELLIE NE IAG LILIES BONE 3D ENE BG
—
553
This carrier never attempted to comply with the bargaining
agreements that it had. It never initiated a program
intended to bring it into capability of eomplying with those
bargaining agreements.
Mr. Thornton testified that it began a long-range per-
manent program in February, 1963, to build up its person-
ne] staff when it resumed operation. And this long-range
program was really based on what became the ‘‘Condi-
tions of Empleyment’’,
Now, the program was aimed at getting rid of the rates
of pay, rules and working conditions that the carrier con--_
sidered undesirable from the standpoint of its operation.
There’s nothing wrong with trying to improve operations
and increase efficiency, but there is something wrong with
doing it in a manner not provided in the Act.
The rules for conducting labor affairs in the railroad
industry are laid down by law and are laid down by law
in an effort to minimize controversies. This carrier is not
interested in that law. io
580 Now, what are the violations? AN
Well, it’s nothing more than Section 6 of the Rail-
way Labor Act, which provides that the status quo will be
maintained while mediation effort is being made on notices
served thereunder; and Section 2, Seventh of the Railway
Labor Act, which forbids the carrier to change rates of pay,
rules and working conditions as embodied in agreements,
except in accordance with the procedures of Section 6.
The carrier suggests that it has a right to resort to
self-help with respect to the union shop agreements and
with respect to the ‘‘Uniform Working Agreement’’, be-
cause the conferences broke down.
I think this flies in the face of the express language of
the Railway Labor Act. Section 2, Fifth of the Act ex-
pressly provides that where conferences are refused, the
Mediation Board may put itself in touch with the parties
and that thereafter they will follow the procedure of Sec-
tion 6.
Se a
554
I refer specifically to—it would be 45 U.S.C. 15—
The Court: 2, Fifth?
581 Mr. Shapiro: 2, Third.
The Court: 2, Fifth, isn’t it?
Mr. Shapiro: 2, Fifth, yes, Your Honor. Did I say 2,
Fifth? I should have said—
The Court: 2, Third.
Mr. Shapiro: I should have said it’s Section 155.
The Court: 155, Third; is that right?
Mr. Shapiro: Yes. Your Honor, it’s actually Section 155,
First (b), and I apologize to Your Honor for the delay,
The actual language is that the parties, or either party
to a dispute beween an employee or group of employees
and a carrier may invoke the services of the Mediation
Board in any of the following cases; and (b) provides:
‘‘Any other dispute not referrable to the Na-
582 ~tional Railroad Adjustment Board and not adjusted
in conferences between the parties or where confer-
ences are refused.’’
And it’s that last phrase, that last five-word phrase, which
demonstrates the inadequacy of the suggestion, that simply
by getting into a dispute over how negotiations are going to
be conducted, a carrier can resort to self-help without con-
cerning himself with mediation and the Mediation Board’s
functions.
The whole purpose of the Mediation Board is to get to-
gether between parties who won’t get together and to bring
them by some means or other into negotiations where they
can work something out. This is done by a dozen different
techniques, as I think I mentioned yesterday; dealing with
the parties separately, dealing with them jointly, trying to
bring them to an agreement.
Now, this is very plainly a major dispute, as far as the
Section 6 notices are concerned, so I won’t ever discuss
the major-minor aspect of it.
There’s clear power under the Railway Labor Act for
om ae
—-_
555
this Court to vindicate the processes of the Act. The
United States very plainly has standing in a case
583 where it’s necessary that the functions of the Media-
tion Board be protected, to come in and make it
possible for the Board to carry out its statutory duty.
This was done by Judge Youngdahl in a case under
Section 10.
It’s a clear implication of cases like In re Debs, which we
cited 11 our memorandum, in which a major strike was
actually enjoined at suit of the United States. Note, the
United States was not the employer or party to the strike,
the major railway strike.
And I think it’s made clear by the case which we cited
in our memorandum concerning the City of Jackson and
its refusal to comply with the Interstate Commerce Act. It
was United States v. City of Jackson, 318 F. (2d) 1, with
particular reference to the language at pages 11 through
16, decided by the Fifth Circuit in 1963, and rehearing
denied at 320 F. (2nd) 870.
I might say that in that case the Judges of the Court of
Appeals based the standing of the United States on dif-
ferent grounds. One ground was statutory but one of the
Judges wrote an extensive opinion demonstrating
584 why the United States would have standing apart
from the statute, and it’s as to that to which we refer.
Now, the Norris-LaGuardia Act has been raised as an
obstacle here. I think, in the light of Your Honor’s de-
cision in the Trainmen case, a serious contention that the
Norris-LaGuardia Act is an obstacle cannot be raised in
this case. This is very plainly a major dispute in which the
carrier is charged with not comply with the requirements
of the Railway Labor Act.
It has been established since Virginia Railway v. System
Federation, 300 U.S., that where a carrier is charged with
violating the Railway Labor Act, the Norris-LaGuardia Act
is not a bar to jurisdiction. This is most clearly demon-
strated in the decision of the Supreme Court in United
556
States—I’m sorry in Trainmen v. Chicago R&IR Company,
at 353 U.S. 30. This is usually known as the Chicago
River case and it is the decision in which the Supreme
Court demonstrated how the Norris-LaGuardia Act must
be accommodated to the requirements of the Railway Labor
Act. The opinion, at pages 40 through 42, makes this
particularly clear.
585 Now, that case involved a minor dispute, a strike
over a grievance, which the Supreme Court said
had to be processed through the National Railway Adjust-
ment Board. Well, a fortiori, if you have to go to the
National Railway Adjustment Board and exhaust those
procedures before you can resort to self-help, then it would
seem to follow that in a major dispute such as this ‘‘Uni-
form Working Agreement’ dispute or the union shop dis-
pute, that the carrier cannot restort to self-help until after
the processes of Section 6 are exhausted.
Now, I think this is most clearly demonstrated in Order
of Railway Telegraphers, at 362 U.S. Now, the correct
citation of that, I’m informed, is 362, 330.
Now, that case involved a proposal by carrier to make
changes in the number of stations that it was operating.
And the carrier said that this is not a matter that is sub-
ject to the Railway Labor Act and we are not going to
negotiate about it. And the union claimed that they had
to negotiate about it, and threatened to go out on strike.
Now, the matter reached the Supreme Court after the
Lower Court—
586 The Court: What was the defendant railroad, the
Chicago Northwestern or Chicago Milwaukee!
Which one?
Mr. Shapiro: Chicago Northwestern.
The Court: Chicago Northwestern.
Mr. Shapiro: The case reached the Supreme Court after
a Lower Court had enjoined the strike, but only enjoined
it pendente lite, holding on the merits that it had no juris-
diction.
The Court of Appeals in that case said that the Lower
Court had jurisdiction and should enjoin the strike per-
manently.
The Supreme Court said:
557
‘‘No, this is a major dispute and the Norris-LaGuardia
Act bars an injunction.’’
Now, that was the majority opinion.
I went through the whole opinion and read Justice
Whitaker’s dissent. As it happened in that case, Justice
Whitaker’s dissent lays out all of the facts and Jus-
587 tice Black’s majority opinion simply lays out the
general conclusions that the Court had reached. In
there, I found that in the case mediation had been invoked.
The National Mediation Board’s services had been called
upon, the Board stepped in and it made a mediation effort.
It actually lasted, oh, about five months. It was about five
nonths of mediatory effort, if you take the time from the
time the Board’s jurisdiction was invoked until the Board
fnaily gave up and proffered arbitration to the parties in
June of 1960. And it was then, at that time, that the union
went out on strike.
The point again—the point of the Railway Telegraphers
case is that Norris-LaGuardia Act—the Norvis-LaGuardia
Act does not apply prior to the time that the processes of
the Railway Labor Act are exhausted; or, turning the coin
the other way, I stated it as we view it, but, turning the
coin in terms of the exact hearing and holding of the case,
after the processes of the Railway Labor Act are exhausted,
the Norris-LaGuardia Act will bar an injunction against
self-help; but after the processes of the Railway Labor
Act are exhausted.
Now, the particular facts that I refer to appear in
588 Justice Whitaker’s dissent, at pages 349 through 350.
I don’t think that the Norris-LaGuardia Act can
stand as an obstacle in this case.
558
The further defense is raised that the National Media-
tion Board has failed to mediate in the circumstances, but,
as I have stated to Your Honor, this is a case in which at
the very outset of the dispute over the union shop agree-
ment, over the ‘‘Uniform Working Agreement’’, at the
very outset of the time when the National Mediation Board
is taking jurisdiction of the case, the carrier is putting
those very changes into effect; and by doing this it i:
defeating the conditions of stability which Congress pro-
vided for when it required that there by a maintenance of
the status quo while the Mediation Board makes its effort,
Now, because the carrier has done this, the Mediation
Board is not obliged to go ahead and mediate until the
carrier gets back into compliance with the Act. That's
the purpose of this action.
There have been other defenses raised. One is that the
labor organizations have disclaimed their representative
status. Now, I am a little puzzled by this since |
589 know of nothing in this record to support the state-
ment that these labor organizations have disclaimed
their representative status. Under the Railway Labor Act,
they represent all of the craft or class, whether the crafts
or classes are members—whether the employees in the
craft or class are members of the union or not.
Now, these labor organizations have a union shop agree-
ment and that union shop agreement remains in force
notwithstanding the fact that there is a strike going on.
There was some argument yesterday which indicated it
was the carrier’s position that the union shop agreement —
just beeame—was cancelled by itself, but the purpose of
this action is to compel the carrier to withdraw its own
cancellation of that union shop agreement.
Part of the carrier’s argument here appears to be that
because the union is on strike or because the organizations
that are not on strike have members who do not cross the
picket lines of those who are on strike, that the union shop
agreement becomes somehow nullified. The consequence
559
of this would be, of course, that every time there was
a strike by an organization with a union shop agree-
590 ment over any issue, the union shop agreement would
be cancelled.
Now, this is just absurd. The union shop agreement
survives until it’s cancelled in accordance with the proc-
esses of the Act. How the parties work under the agree-
ment may be something else again, but the agreement
survives and the cancellation which has been attempted
here as a prospective matter is illegal and should be en-
joined.
We’ve already mentioned the National Railroad Adjust-
ment Board problem, pointing out that this is basically a
major dispute; but if the carrier reverts to the ‘‘Condi-
tions of Employment’’, it is going to be simply trying to
put into effect indirectly what it cannot put into effect
without complying with the procedures of Section 6 of the
Railway Labor Act; in short, using the ‘‘Conditions of
Employment’’ to evade the requirements of Section 6.
Now, there has been some reference recently to the very
recent decision of the Court of Appeals in Aaxico Airlines,
Inc. v. Air Line Pilots Association,
The Court: Aaxico Airlines, isn’t it?
591 Mr. Shapiro: Yes, sir, decided, I think, April 15th.
Well, Your Honor, the Aaxico case, I don’t think
has any application to this case. In the first place, in
Aaxico, we didn’t have an attempt to implement through
Section 6 notices the same conditions that have been raised
here as temporary ‘‘Conditions of Employment’’.
Secondly, in Aaxico, at least it could be argued that the
question of whether or not the contract survived under its
terms or the contract involved, the question of whether or
not the contract survived arguably could be said to depend
upon the particular language of that contract. But in
this case, the carrier has told us that its ‘‘Conditions of
Employment”’ have no effect on the contract. So that what
it’s really saying is that it’s the Railway Labor Act that
Ne x PY Se
560
gives it some special right to evade, avoid the rates of pay,
rules and working conditions as embodied in that contraet
and substitute on a wholesale basis a complete revision of
the rates of pay, rules and working conditions for the
duration of the strike emergency.
Now, it isn’t the contract that’s in issue. Its the
592 ~=statute. And that is certainly not a question of
the National Railroad Adjustment Board.
I should mention also the decision of the Second Circuit
in Manning v. American Airlines, which also involved an
attempt by a carrier to change rates of pay, rules and work-
ing conditions without going through the processes of the
Act. In that case, it was a check-off arrangement which
the carrier unilaterally terminated. The Second Circuit
said this was very plainly a matter which belonged under
Section 6, it was a major dispute, and it affirmed an in-
junction notwithstanding the carrier’s argument that it was
a minor dispute and that the Norris-LaGuardia Act some-
how barred jurisdiction. Now—
The Court: Do you have the cite of Manning?
Mr. Shapiro: 329 F.(2nd) 32.
The Court: Thank you. I assume it’s in your brief?
Mr. Shapiro: It’s in our brief, but I think in our brief
it’s still cited to the Labor Relations Reference Man-
593 ual. It was only reported a few weeks ago under
the Federal (2nd).
Now, there’s one final statement I would like to make in
response to a representation made by Mr. Devaney during
an altercation over the admission of some evidence.
Mr. Devaney stated that, in the case last December
involving Publie Law 88-108, he had told me about
the ‘‘Conditions of Employment’’ and that if I didn’t
ask Mr. Wyckoff further questions about them, it was
not Mr. Wyckoff’s fault. I have no recollection of
having been told about the ‘‘Conditions of Employ-
ment’’ by Mr. Devaney. I know that there is nothing in
the record in No. 260 about them and I’m also prepared
ie,
Fwy?
Meise §
ye eee
561
to represent to the Court that the first information we had
in the Department of Justice about the ‘‘Conditions of
Employment’? of September 1, 1963, was after Your
Honor’s decision in the Trainmen case on March 2nd. It
was that information which led to a general view of the
problems of the Florida East Coast Railroad and Ulti-
mately to the direction that this action be filed.
There is a final matter. A good part of the rebuttal case
by the carrier and part of our case this morning was
594 addressed to the question of Court Reporters in
labor negotiations. Now, I think Your Honor will
recall that I had objected on the ground, at the time this
issue came up, I had objected on the ground that | didn’t
consider it relevant or material to the case.
I want to reiterate that I haven’t abandoned that posi-
tion, that I wanted to present evidence to rebut it in case
my contention here, which I’m about to make, is rejected.
Now, the relief we seek here is primarily to compel the
carrier to restore the status quo ante its notices involving
the union shop agreement and the ‘‘Uniform Working
Agreement’’, and to prevent it from avoiding a direction
that it do this by resorting to the ‘‘Conditions of Em-
ployment’? of September 1, 1963.
We also ask as a general prayer that the earrier be di-
rected to bargain in good faith. The theory that the car-
rier has not bargained in good faith is based on the fact
that the carrier put its rates of pay. rules and working
conditions into effect without waiting for the processes of
the Act, without trying to make an effort to comply
095 with the processes of the Act. That is the real vio-
lation.
Now, | think we developed in the testimony this morning
that one could say that the labor organizations refused to
bargain in the presence of the Court Reporter, or one could
turn it around and say that the carrier refused to bargain
in the absence of a Court Reporter. Court Reporiers
aren't customary in labor negotiations, for the reasons
Sahat SESAME IVE: oA BT IB i 2 ghey AE.
that Your Honor has heard this morning. They inject an
awareness of words, a concern with formality. It defeats
the whole effort of trying to reach agreement.
Again, I emphasize that in labor negotiations, you've
got strong-willed people on both sides taking a strong
position and sometimes using strong language. They
have to work in an atmosphere of informality. Now,
the fact that someone has a reporter present doesn't
automatically make their insistence on the reporter a vio-
lation of the law. This is largely a matter of circumstances,
But in most circumstances it may well be evidence of bad
faith, as the National Labor Relations Board has held.
It isn’t of itself a violation, but it may be evidence of an
intent or an attitude to bring about a violation.
596 Now, no deeree that Your Honor has to issue at
this time need be directed to this issue of whether a
reporter should be present or not. It is conceivable that
further difficulties could arise over this Court Reporter
issue but it would be hoped that, with an honest mediation
effort and genuine, sincere effort on both sides to comply
with their statutory duty to exert every effort to reach
agreement, that this could be avoided because the Court
Reporter, after all, is only a matter of procedure and labor
negotiations can be carried on effectively without one.
If everybody does meet and try to do what the statute
says they must do, and the express words are, in Section
2, Second, I believe it is—152 Second—that they exert every
reasonable effort to make and maintain agreements. I’m
sorry, that was Section 2, First.
Section 2, Second is that all disputes shall be considered
and, if possible, decided in conference.
Those two Sections, taken togetehr, state the duty to
bargain in good faith, to really try, to meet together
597 at reasonable times with an intent of making every
effort to reach agreement.
Now, that’s as much as is being asked for here, to give
063
the Mediation Board a chance to try and work with these
people. 1 don’t know whether they will succeed.
it may well be that at the end of all of this, the car-
rier may well end up with the right to put its ‘‘Uniform
Working Agreement”’ into effect.
The Government’s interest here is not in what is pro-
posed by the carrier or what is proposed by the union,
as such. The Government is concerned with bringing the
parties together so that they can try and reach an agree-
ment. What kind of agreement they reach is for them
to decide. That’s as far as the Railway Labor Act takes
the Mediation Board, or takes the Government in these dis-
putes. And what we ask is that the carrier be required to
restore the conditions under which mediation can take place
and that the processes of the Railway Labor Act be applied
to it.
The Court: Do you want to go ahead now?
598 Mr. Rutledge: Your Honor, would it be appropri-
ate for us to reserve just a few minutes at the con-
clusion?
The Court: I think so, if that’s agreeable with Mr. De-
vaney.
Mr. Devaney: You mean that they be in the rebuttal
position, Your Honor?
The Court: Well, I think— suppose, if you differ in any
particular from the Government's view, you go ahead and
state it now so that—
Mr. Rutledge: We don’t differ with anything that the
(iovernment’s view, either as to the law or the facts in
this case.
Argunient by Mr. Devaney:
Mr. Devaney: Your Honor, to begin with, I would like
to reiterate at the outset our Motion to Stay any decision
in this case pending the decision of the Fifth Circuit in the
21356 case. And as we set forth in the Motion to Stay the
entire proceeding, the same issues are involved and we feel
Ane. a he ee
064
for those reasons that for the Court to issue here a
599 temporary restraining order is actually within the
terms of the order issued by the Court of Appeals on
March 14th, staying the proceeding, namely, that any order
such as is requested here—and Mr. Shapiro says what he
really wants is an order requiring that we may operate dur-
ing the period of the strike only under the terms of the
agreement that was in effect before the strike began—and,
as the testimony shows very clearly, this can have only one
effect on the operation of the Florida East Coast and that
is in reduction of its service.
Now, a 50% reduction in service would be felt not only
by the railroad but by the public that we serve. And this
issue having been present, the same issue of irreparable
harm having been present in the 64-40 case, and the Court
of Appeals having granted this stay pending its decision. in
21356, we again urge that that should be considered in this
case.
Now, before reaching the actual facts in this case, |
would like to direct attention, first, to some portions of
our memorandum in support of our Motion to Dismiss that
relate to the standing of the Government to maintain this
action at all.
600 I think that the complaint and the testimony here
makes it very clear that the real dispute is between
the various organizations and the company.
Now, in this regard, while there may well be disagree-
ment as to who struck John, I don’t think there’s any doubt
that the unions refused to bargain. All the testimony in-
dicates this flat refusal to meet. We say this is a flat vio-
lation of the obligation under the Act to meet and confer.
We believe that the various cases, beginning with the
Virginia Railway v. System Federation through Burley,
and the most recent one is 1AM y. Central Airlines,
all recognize that the duty to bargain is an actual duty
and it is not a perfunctory duty that either party can
simply close the door and asy, ‘‘We won’t bargain.’’ The
565
Act never contemplated that. And for the union in effect
to say, ‘‘We won’t bargain, we won’t play’’, just is not
compliance with their obligation under the Act. So
that this is a dispute between the Florida East Coast
and the unions.
It’s not a question of Florida East Coast having tried
to evade the provisions of the Act at all.
601 Now, the complaint seems to be based on the as-
: sertion that the United States has standing because
of some involvement with commerce, and yet the facts all
indicate here, and I don’t believe any contrary finding is
possible, that there is no present interruption to commerce
or any threatened interruption to commerce. Quite the
contrary. Florida East Coast is operating. So that
reliance upon this interruption to commerce is not well
taken.
Now, by the same token, the United States has no pro-
prietary interest in this case.
Now, they have cited in connection with the disruption
of interstate commerce Jn re Debs. Now, that is to be
found at 158 U.S. 564. It was decided in 1895.
Now, there is a later case which they cite, United States
v. Brotherhood of Railroad Trainmen, 96 F. Supp. 428,
: Northern District of Illinois, in 1951.
, Now, the basie holding in In re Debs, I believe has
been squarely overruled by the Supreme Court and has
certainly been overcome by the passage of the Norris-La-
Guardia Act of 1932.
In United States v. United Mine Workers of
602 America, which is at 330 U.S. 258, at pages 277
through 278, the Supreme Court had this to say:
‘In the debates in both Houses of Congress, nu-
merous references were made to previous instances in
which the United States had resorted to the injunctive
process in labor disputes between private employers and
private employees where some public interest was thought
to be involved. These instances were offered as illustra-
566
tions of the abuses flowing from the use of injunctions
in labor disputes and the desirability of placing a limi-
tation thereon. The frequency of these references and the
attention directed to their subject matter are compelling
circumstances. We agree that they indicate that Congress
in passing the Act did not intend to permit the United
States to continue to intervene by injunction in purely pri-
vate labor disputes.’’
Now, the case of the City of Jackson is itself an
603 unusual case and represented a very broad holding
that the commerce clause prohibits obstruction to
interstate commerce and that the United States has stand-
ing to sue for injunctive relief to enforce the Commerce
clauses.
Now, here there isn’t any possible allegation of the inter-
ruption of interstate commerce. And even though the City
of Jackson was not based upon any threat or peril to inter-
state commerce but a finding that a present obstruction of
interstate commerce existed, the contention that this can be
further broadened here to say that the United States has
standing under the commerce clause in any case by merely
alleging that there may at some time be some relation
to commerce does not seem well taken to me.
Now, in the second place, we pointed out that the United
States is not the true party at interest. We think that this
was demonstrated by the petition of intervention on behalf
of the eleven unions; and that, because the United States
was not the real party of interest, that it had no standing
to maintain this case.
Now, all of these matters are reviewed at some
604 length in the memorandum in support of our Mo-
tion to Dismiss. And I’m not going to pursue them
in great detail at this time.
Now, reverting to the complaint a moment, the complaint
here is actually divided into three counts, the first one
being the essential allegation appearing in paragraph 11,
that the Florida East Coast breached its duty by failing
567
to make every reasonable effort to make and maintain
agreements.
Now, this has no basis whatever in this record.
Now, a lot of remarks have been made as to the com-
pany’s intention as to what was placed into effect and what
was modified. We’ve never made any secret of our posi-
tion. When the strike occurred on the Florida East Coast,
the testimony here very clearly indicates there were no
employees, no scope employees, left to perform the work.
The only people available were the supervisory employees.
Now, when we resumed operations on February the 3rd,
there wasn’t any possible doubt that when we used these
supervisory employees that we did so in violation, if you
will, of the collective bargaining agreements. And when
we operated the crews from Jacksonville to Miami and
back and when the same crew did the switching,
605 the road work and the terminal switching at its
destination, there isn’t any doubt that this was not
in conformance with the prior agreements. The agree-
ments narrowly restricted the work to very strict craft
lines. We did not have the employees to observe those
craft lines. And it’s perfectly clear that from February
3rd, we had no choice if we were to operate at all but to
use the employees who were available in whatever man-
ner necessary to perform this work.
We have said consistently that by doing this we did not
change any agreement that existed before the strike.
Now, why the difference? Is there any difference be-
tween this? We believe that there is a very important dif-
ference between saying that we have changed those agree-
ments and saying that we were forced to operate during the
period of the strike with the manpower we had, even
though it meant deviating from those agreements.
We say, as we developed before Your Honor before at
some length, that the strike itself created this emergency
condition and it had the effect of suspending the agree-
ments.
606 Now, Mr. Shapiro says that we have alleged that
it cancelled the agreements. We have never made
RENE ER LOR OSE SALT IS a i
OES Te ee
(Seti
568
any such allegation. We do not believe that that was the
effect at all. And the fact that we gave Section 6 notices
later is certainly moot testimony that we did not take any
such position at any time.
We do say that the strike condition permitted us to op-
erate in the manner that we could with the personnel we
had available.
We also say that this is not an instance in which the
carrier sought to change or to bring about any change in
the agreements.
Now, this is not a new idea. It was considered at some
length by the Seventh Circuit Court of Appeals in the
Chicago Midlands case. And that was the case in
which there was also a strike by the Brotherhood of
Railroad Trainmen, and the contention was that when
the carrier itself took action that it was seeking to
change conditions. The Seventh Circuit said, if I may
quote briefly, it said this, and I’m quoting from 315 F. (2d)
771, and it is at page 775. The Court said:
‘‘But defendants overlooked the fact that it was
607 they who acted to disturb the status quo by in-
ducing concerted action by plaintiff’s employees to
honor the picket lines, thus defendants’ reliance upon
Rutland Railway Corporation v. Brotherhood of Locomo-
tive Engineers is misplaced. In Rutland, the railroad al-
tered the status quo by reducing and rescheduling freight
runs so as to eliminate the number of jobs and changed
home terminals of some of the trainmen whose jobs were
not eliminated. In Rutland the disagreement was charac-
terized as being whether the railroad has the unilateral
right to make those changes without negotiating about
them with the Brotherhoods. It was the failure of the
railroad taking such action to first confer with the Brother-
hoods, which the Court there found required the applica-
tion of the clean-hands provision of the Norris-LaGuardia
—
; &s
a
569
Act. In the instant case, the defendants unilaterally
608 induced concerted action resulting in a work stop-
page.’’
Now, this merely emphasizes the difference between a
earrier which, like Southern in the Southern Railway case
or the like the Airline in the Manning case—if you would
like the citations, I believe I have the Southern; do you
have that, Your Honor?
The Court: I have that and I have the Manning case.
Mr. Devaney: Now, in the Southern case, as Your Honor
will recall, this was an instance where the railroad un-
dertook to change the long-established practice of having
a fireman on every train. They contended that the ex-
isting agreement didn’t require the hiring of additional
firemen. They merely assigned firemen from their firemen
roster until all the names were exhausted and then they
didn’t have to have any more firemen.
Now, that clearly was a case where the carrier sought to
change. They were not faced with any action by the
union that changed the status quo which gave them the
right to react to it.
Manning was the same kind of case. That was the.
609 case, as Your Honor may remember, in which the
Airline had a term union security agreement—I’m
not positive whether it was check-off or union shop, but it
was union security agreement.
The Court: Check-off.
Mr. Devaney: For a period of time.
The Court: Wasn’t that what happened in Manning?
They abolished or abrogated a check-off agreement?
Mr. Shapiro: Yes, Your Honor.
Mr. Devaney: Now—
The Court: Without Section 6 proceedings.
Mr. Devaney: Yes, when the contract expired, the rail—
the airline said, and took the position that, ‘*Look, the
contract has now expired; we don’t have to give Section 6
natice.’? Now, the Court held that once it had become a
570
condition, that the carrier couldn’t change it, couldn’t
abrogate it without giving the Section 6 notice.
610 Now, we think that there isn’t any conceivable
doubt here, where the strike has occurred, that the
strike itself has changed the conditions. It changed the
conditions by removing totally the availability of scope
employees. They simply weren’t there to perform the
work. And in order to react to this, we merely say that
during the period of the strike that this was an emergency
condition and we had the right to operate with the man-
power we had available.
Now, this, Your Honor, was the—this was the condi-
tion under which we were forced to operate on Febru-
ary 3rd. And on September the 1st, when we reduced
these provisions to writing, this did not change the con-
tracts that were in force and effect. And as we have
said over and over again, at any time that any of the unions
had terminated their strike and we had the manpower
available, their original agreements would have applied
and the conditions created by this emergency would have
ceased to exist. They were justified only because of the
emergency conditions in the emergency, and there is no
longer any right to work in that manner.
611 Now again, this is not a unique position that Flor-
ida East Coast has come up with. There have been
a considerable number of cases, as we’ve pointed out, which
have gone to the Railroad Adjustment Board, in which
this kind of a problem was involved, namely, what does
a carrier do when faced with a strike or a refusal to
cross a picket line? What can it do to perform the work?
And everyone of the ca
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