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.

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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,

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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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