# Appendix — Brotherhood of Railway & Steamship Clerks v. Florida East Coast Railway Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0262%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1966 - **Citation:** 384 U.S. 238 ## Text 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? " 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) ‘ 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? it, that is, work, they do this work under the direction of the exempt supervisor or either the non-exempt supervisor. There are some jobs that both groups work in the craft on. They are primarily jobs that require a very high degree of skill and sometimes even special and unusual qualifications. Q. Well, why do you not use the people who are 147 employed as scope people to do the work, rather than the supervisors? A. They don’t have the skill to do it. It’s a matter of available skill. Q. Now, what effect would it have on the operation of your department, Mr. Hales, if you could not continue to use the supervisors to perform this scope work and to use the scope employees to cross the craft lines in the manner that you have explained? A. Well, we would have a very rapid and general deterioration of the condition of the equipment and we would fail to meet the requirements of the various Federal statutes that govern the condition of equipment. Q. Would this have any impact on the operation of the Florida East Coast? A. Yes, it would. In time, we would have to shut down. Q. Have your efforts to recruit diminished at any time, Mr. Hales? A. No, they haven’t. Q. Is your program of trying to secure employees con- tinuing to the present time? A. Yes, it is continuing. 148 Mr, Devaney: No further questions, Your Honor. 675 Cross Examination By Mr. Shapiro: Q. How many supervisors are there in your department, sirf A. You mean general foremen as well as foremen? Q. How do you define supers isors in your department? A. Well, we have the total of 23 exempt and non-exempt supervisors, Q. What is the difference between an exempt and non- exempt supervisor? A, An exempt supervisor is a general foreman. A non-exempt supervisor is a scope foreman. Q. How many general foremen do you have? A. I’d be glad to count them up. Let's see, we have two in the Locomotive Department at Bowden—about 14, Q. About 147 A. About 14. Q. You have 14 general foremen and 23 scope foremen? A. No. Q. I’m sorry. A. That figure I gave you was total. 149 Q. Total? a er tat eos RTGS 676 150 I have a count on January 18, 1964, along with a summary, which I can take out the exempt per- sonnel and give you an approximate figure. Q. Would you do that, please? A. I have a summary here as of September 30th, 63, about 109. Q. 109? A. Yes. Q. Now, you have increased you scope personnel by about 24 employees since September 30, 1963? + ania 852 It has occurred in part because the Fruit Growers Ex- press is performing their own repair work and sending ears directly to us from their shops. We have shown in tiie Maintenance of Way Department that 112 employees previously required are not now re- quired because of the addition of new aquipment, and this was enumerated, including the Caterpillar front end loader with winch to unload switches and turnouts as units. This one unit will do, with four men in three hours, what 471 formerly required twelve men a period of three days. The track lining equipemnt now does with an operator and a laborer what previously required eight to ten men. The tie cars have on them an unloading device which unloads the ties. This previously required a crew of ten to twelve men to throw the ties out of the cars. The surfacing work, the ‘‘hi-rail’’ cars which are now radio dispatched, fully equipped, containing a great va- riety of machinery and equipment. And all of these have added up to the fact that the Maintenance of Way can be performed with some 112 fewer people than was previously required. Now, there is only one category in this Department, Your Honor, where work is not being performed that was pre- viously performed and that is one bridge gang. This work is being contracted and is not, in fact, being performed by employees of the Florida East Coast; so there is no violation as to the payment of their wage rate. We have also shown that, where the Carrier does not have sufficient qualified personnel, it always has had the right to contract out the work; that we have brought this 472 question into the proceeding to demonstrate that we are of necessity having to contract out work where we do not have the qualified personnel. And we wanted to make it clear that the practice existed so that there could not later be the contention that we were not com- plying with the agreement. 853 Now, in the Signal Department, 35 less people are re- quired, primarily because of the elimination of this 4400- volt line, which in turn made unnecessary transformers which were a source of considerable maintenance attention, relays, substations, and so forth. In addition, the CTC has reduced the number of sig- uals, has reduced the number of insulated joints. And the Microwave signals are now transmitted through the rail; all of which has reduced the amount of maintenance that we had. ’ And the Signal Department, as was true in the Main- tenance of Way Department, the installation of CTC has been contracted out for the reason that we do not have sufficient qualified personnel to perform this work. And in the Transportation Department, 67 less 473 people were required, chiefly because of the situa- tion on the LCL freight. Now, as we have shown, while LCL freight has been handled since the strike on a permit basis, since the begin- ning of the strike we have been able to handle, even on a permit basis, only by having the consignee or consignor loading or unloading its ears. Now, on a permit basis, Florida East Coast is actually handling as much, indeed more, LCL freight than other railroads, not only in this area but throughout the country, are presently handling in the main. Furthermore, we have amended our tariff to comply with the provision on LCL freight, which the Seaboard already has in operation. Now, the Accounting Department has 10 less people re- quired because of the expansion of the machine accounting to other records which were not previously handled by ma- chine accounting, and by the elimination of certain reports which we have found to be unnecessary in view of this availability of other information on the machine account- ing records. 7 dae eared IT AVE ha De PS BOS ATT LARS. 854 In the Freight Traffic Department, 2 less people 474 are required as a direct result of use of the Zerox machine to copy the various correspondence and to reduce the amount of typing and collating of material which has previously been done. And also the use in the Freight Traffic Department of machine accounting records which are essentially made for use by the Transportation Department. Now, in the Personnel Department, there actually has been an increase of one person over what the Department had prior to the strike and there is a further need for one additional person, and this job has not been filled. Now, with these requirements, the Carrier bulletined the number of jobs immediately required which were 114, and between November 2nd and November 3rd, it bulle- tined 114 additional jobs. Now, we received from those on strike a total of three bids. Only one person, in fact, reported for work. Now, of the other 113 positions, we received bids only from people who were already working, and this in no way represented an increase in the total number of persons required to permit the Carrier to com- ply fully with the agreements. Now, we have, as of November 13, reinstated 475 all the provisions of the non-operating Union agree- ments as to wages, hours, job descriptions, and so forth, as was illustrated by Defendant’s Exhibit JJ. Now, this is a copy of one of the Notices sent to one in- dividual and similar notices were sent to each other indi- vidual where a change in rate or hours or in job descrip- tion in anyway was involved; so that the individual was informed of the change to comply with the provisions of the prior agreement. Now, the assertion has been made that the meal period and the starting time for the shop crafts is not in accord with the provisions of the Shop Craft Agreement. Now, as Rule 2 of the Shop Craft Agreement shows, and this is Plaintiff’s Exhibit 4C, on page number 15, Rule 855 2(a) provides that there may be one, two or three shifts employed. It then says that the starting time on any shift shall be arranged by agreement between the Local officers and the employees committee, based on actual service re- quirements. Rule 2(b) provides that: ‘The time and length of the lunch period shall be subject to agreement, preferably within the limits of the 476 fifth hour, except where three shifts are employed, when the lunch period shall be 20 minutes without loss of time.’’ Now, in support of this, Mr. Cooke stated that, prior to the strike, at New Smyrna Beach the lunch period was 20 minutes and that this was paid for. Mr. Cooke ad- mitted, however, that three shifts were not operated at New Smyrna. It has been shown that there are only two shifts being operated at New Smyrna at the present time. And it has further been shown that the miller shops, prior to the strike, which was another repair facility which the Defendant operated, it, prior to the strike, was operating only one shift at Miller shops and it paid the employees only for the time worked and not for the meal period; and further, the bulletins show that the lunch period was 30 minutes, Now, in conformance with the provisions of the agree- ment, the Defendant has since the resumption of opera- tions operated these hours at New Smyrna since February of 1963. Now, to the extent that agreement is required under the provisions of Rule 2 of the Shop Craft Agree- ment, I respectfully request that, if this has not already by implication become a part of our Application, our 477 Application be amended to include a request for exemption during the period of this strike for the compliance with any provision such as Rule 2 that requires the agreement between the employer and the Union on such a matter as the change in starting time. Now, it is clear from the testimony here, Your Honor, that because the shop crafts are on strike that the concept of making a request that they agree to a change in hours would certainly not be well received. And this is frankly 856 ¢ admitted by Mr. Cooke, who said that he did not believe 4 that he would have agreed to any such request. 4 Now, the provisions, the whole intent, the whole purpose a of the agreement is to provide for the requirements of the : service. And this, of course, is recognized in Rule 2, which says: ‘*Based on actual service requirements.”’ Now, this is the reason for the necessity of operating the hours that we have since the resumption of operations. The actual hours must conform to the requirements of the service. That is all that has been done, and because 478 there has been no conceivable prejudice in any way to the rights of any person, they have not been de- prived of the meal period that they are entitled to under the contract, then we feel that we are already in compliance with the agreement by operating in the way that we have operated. Now, the assertion has also been made that the placing of new employees in a training program, that is, the ap- prentice program, in accordance with their experience, is not in accord with the agreement. Now, first, Your Honor, let me say that I don’t believe that any of us could or would contend that this agreement was negotiated with the idea that we were going to be faced with a strike. I don’t believe that the provisions of this agreement were intended to be read except in the context of the shop crafts working and continuing to work. It was not—the agreement was not written with the idea that the shop crafts were not going to perform service. Now, we begin with this, I believe, as the basic assump- tion: What do you de when an unforeseen contingency comes into being that the parties themselves did not 479 provide for in their agreement? PRES ORAM OG DARL, PH AAA RR RE IS And we believe that the manner in which the Railroad has operated with respect to the placing of new em- ployees into this training program, in accordance with their experience and ability, is entirely in accord with the agreement. In the first place, there is no provision, as Mr. Cooke has admitted, which prohibits the Carrier hiring men with experience and placing them into the proper slot of the apprenticeship program. And we concede that there is no provision which specifically authorizes this to be done. Now, that there is some recognition that, even when the shop crafts were working, there were times when this had to be done is also demonstrated by the provision which was negotiated, which appears on page 84 of the agreement, the memorandum of March 4, 1942. Now, this was a provision negotiated during World War II when there was a shortage of personnel and under this provision, when again the shop crafts were operating but despite the fact that they were working there was this shortage of personnel, and in this agreement pro- 480 vision was made for the advancement of appren- tices. Now, in keeping with this over-all problem that the Carrier faces, this is really all that has been done: Florida Kast Coast has noi gone out and hired people with no prior railroad experience and brought them in and said, ‘‘We are going to qualify you and give you any benefits as a journeyman.’’ We recognize that these people are not so qualified and we have had to continue their training for some period of time, depending upon their prior experi- ence and their abilities. This is what has been done. They have been placed in this training program where their experience and ability would justify placing them and when, and only when and if, they have by additional ex- perience with the Railroad attained the additional qualifi- cation and experience necessary to be advanced to the journeyman status, have they been so advanced. 857 een ane We believe that this is fully in accord with the pro- visions and the intent of the agreement as to how the over-all apprenticeship or training program is to operate, recognizing as we do, Your Honor, that the agreement was never written with the express idea that there was 481 going to be a strike and a refusal on the part of any of these Unions to perform service over an extended period of time. And finally, we believe that the strike conditions under which we are operating necessitate our operating in pre- cisely the way that we have. It is the only way that we can find employees, namely, by taking those with as much training, skill and experience as we can find, utilizing their abilities and training them at the same time so that they ean ultimately perform all of the jobs, all of the skills that are required of their jobs. Now, Your Honor, the assertion has also been made that, under Rule 46(a), Florida East Coast is required to pay some different rate of pay because other railroads are paying rates higher than the Florida East Coast. Now, we believe, on the surface, Your Honor, that this at best involves an interpretation and application of the contract, and that this matter should not properly be before the Court, since it is a matter of interpretation and application of an agreement which is within the exclusive jurisdiction of the Railway Adjustment Board. But if the Court does not agree with this point and feels that 482 the question must be decided, we think there can be no doubt whatever that Mr. Cooke, in 1962, sub- mitted a claim to the Florida East Coast involving the assertion that Florida East Coast was obligated under Rule 46(a) to make the same wage payments that had been agreed to in the national settlement in Chicago. This claim, and this involved, this was a claim for the over-all wage rates which had been agreed to in the national settle- ment—this claim was denied by the Carrier and the Union failed to take any further action as provided by the agree- 858 ment and the claim became barred ; so that even if they had a claim, it has now become barred because of its presenta- tion and the fact that the Union did not process it. And under the terms of the agreement, the claim has become a complete dead issue and may not be raised again in this proceeding. Mr. Cooke has also made reference to asserted settle- ment-— The Court: What provision of the agreement are you referring to? Mr. Devaney: 46(a), Your Honor. 483 The Court: TI know, but what provision are you referring to as maning it res judicata, so to speak? Mr. Devaney: The provision of the agreement. Mr. Milledge: T will be glad to be of assistance, if I can be of assistance to the Court, I will be happy to. The Court: All right, sir. What is he referring to? Maybe you can help him. Mr. Milledge: The retroactive part, the wage claims based upon Mr. Cooke’s assertion of an increase that was due at that time. The time claims have to be made within 60 days or lost. The Court: Yes, sir. Mr. Milledge: So, for those people working during ’62 who should have been paid more money during ’62, they’ve lost their time claims by not pursuing them, That’s the only thing in the contract. 484 Mr. Devaney: Your Honor, the agreement to which I made reference is an agreement of August 2ist, 1954. Mr. Wyckoff has advised me that this is not printed as a part of what has been introduced. It is not in this book. ( Indicating) Now, I do not know whether it’s in one of the other documents which were introduced at the May hearing. If I may, this is part of the— The Court: Well, it would be pretty hard for it to be introduced in May when it came out in August. 859 860 Mr. Devaney: No, but— The Court: It would seem to me. Mr. Devaney: Mr. Shapiro said that all of the supple- ; ments to this agreement have been—or Mr. Milledge said that all supplements have been introduced. I do not know whether this supplement— The Court: It wasn’t in existence in May. 485 Mr. Devaney: I beg your pardon? The Court: The agreement was entered in An- gust. It wasn’t in existence in May. It couldn’t have been put in. Mr. Devaney: August 21st, 1954, Your Honor, ten years ago. The Court: I thought you said 64. Mr. Devaney: No, Your Honor. 3 The Court: I’m sorry. : Mr. Devaney: It’s ten years before. The Court: Excuse the interruption. I thought you were talking about something this August. Mr. Devaney: Now, if I may, I will be glad to have and I will show this to the Court at this time and we will be glad to have a copy made if it has not been made. Pe sora PR eet ee eh eee ORT RY (Tendering instrument to the Court) ‘ Now, at—there are two provisions of this agreement. One is as to filing of the claim, which Mr. Milledge 486 made reference to. And the other is the appeal from the claim after it’s denied. Now, Mr. Cooke’s letter clearly constituted a claim by Mr. Cooke, which was denied on July 16th. The Court: Excuse me. This thing, if it’s not in these papers, ought to be. You agree with that, don’t you? Mr. Milledge: Yes; yes, Your Honor. If it is not, it ought to be. The Court: If it isn’t, it ought to be and I’m going to permit—I’ll permit Mr. Devaney to supply it. Mr. Devaney: Now, we have, the Carrier has made a search of its records, Your Honor, and we have found no SPE aS eR NG Re RS a I ge Re eT 861 record of the settlement or adjustment which Mr. Cooke has referred to. And please understand that I am not asserting at this time that no such settlement ever existed, but only that we can find no record that there ever was such an adjustment, either from the records or from any adjustment in the wage rates. We further find that the only adjustment, or matter which has involved any part of Rule 46, was the 487 decision, the Adjustment Board decision in 1182 by the Second Division in 1947, which involved the pro- visions of 46(b). But that’s the only case involving any part of Rule 46 that we have been able to locate from our records. Now, whether or not this existed at one time, there certainly can be no doubt that the claim which was made in 1962 was denied for the reason that the provisions of Rule 46(a) did not obligate the Florida East Coast to pay the same rates that other railroads had paid; that this claim has been barred by the provisions of the agreement that I previously referred to, and copies of which will be supplied to the Court. And having permitted this claim to be barred, as Mr. Cooke has admitted he did by not taking a further appeal, it certainly could not be raised in this proceeding. Now, what has the result of this hiring and training pro- gram been, insofar as the Florida East Coast is concerned? Well, the record is very clear on this: It leaves not the slightest doubt that the Florida East Coast has, since it resumed operations, attempted to hire and train employees as rapidly as it could. 488 We are left today with an additional 114 people, if we are fully to comply with the provisions of the existing agreements. These positions are positions which, almost without exception, require a considerable amount of skill and training. And because we do not have the people who are fully qualified, we can continue to operate and handle the volume of traffic that we are presently car- rying only by using the people that we have by crossing KR SAGE 862 craft lines and seniority districts to perform operations that these people are the only qualified people available to perform; by the continued use of our supervisory person- nel, both exempt and non-exempt, to perform those limited functions that the people we do have are still not fully qualified to perform; that we must continue to contract out work where we do not have the qualified personnel to perform it with our own employees. As I mentioned earlier, the work that we specifically made reference to as illustrating this problem was the bridge gang work which is contracted out, and the installa- tion of CTC. Now, this represents the kind of work where we do not have the qualified personnel ourselves on 489 our own payroll to perform it and we have con- tracted it out. Now finally, on the bridge tending, the Government has conceded that it believes the request in Paragraph No. 6 of our Application was reasonable and that it was not objected to. Now, the Union has raised a question concerning the use of supervisory personnel or contract employees to perform this service. And we have shown, Your Honor, that these are critical points to the continued operation of the Railroad and, because they are sensitive points as part of the over-all security operation during the continuance of the strike, that this has been and is now being performed either by exempt supervisory people or is being contracted out as part of the over-all security program. Now, we believe that because of the sensitivity of these positions that this must be continued, And we have shown that the attempts at sabotage have not stopped but have continued right up to the present time. Now, there was an agreement at the outset of the hear- ing as to Pargraph No. 3, which was our request as to 490 the apprenticeship ratio and to the age limitation. Now, those provisions are the provisions which | believe that all parties concede relate directly to the opera- tion, continued operation, of the Florida East Coast. 863 Now, at the outset, there was a question as to whether or not the requests were sufficiently specific. There is no doubt from the evidence and the testimony as has been developed here that the problem of pinpointing any one supervisor and saying that he performed one operation or two operations which would involve scope work is simply not possible. This is an over-all problem where there are certain parts of the work in the training of these new em- ployees who have not yet fully qualified, that the super- visors must not only, in the course of training, show these people by doing it but he must also perform those parts of the job that they are not qualified themselves to per- form; and that in many areas, these people are the only people who are fully qualified to perform this operation. We have shown that many of these operations are im- mediately critical to the continued operation of the Carrier. 491 Now, we have said and the evidence leaves no question but, if we cannot continue to operate in the manner set forth by crossing craft and seniority, the craft lines and seniority districts, and the use of our super- visory people to perform this, certain portions of this work, and so forth, that the operations of the Railroad would have to be severely curtailed to a minimum of 30 to 50% in the reduction of freight we are currently han- dling. We believe that the showing here leaves no doubt what- ever that the requests that we have made are reasonable requests. Now, we have further shown, Your Honor, that the sug- gestion of the United States that there be a time limitation of four or five weeks is completely and impossible to eom- ply with for the simple reason that you cannot train people in any such period of time. We have been endeavoring to bring our foree up to the point that we can provide the service since February of 1963 and, in training these peo- ple, the jobs that we now need, the 114 jobs almost exelu- 864 sively consist of jobs that do require extensive training periods. This is the skill that we are lacking and it simply cannot be provided in any such period of time. We 492 are endeavoring to do so. We have endeavored to do so since we resumed operations. We cannot do more than we have, namely, to hire anc train as rapidly as our abilities permit us to do, and our ability to train people is directly limited to the number of individual supervisory employees available to train and to assist in the performance of part of this work. Now, the other two matters, Your Honor, then, relate to the seniority rosters. And we have shown again the rea- son for the non-furnishing of the seniority rosters from the commencement of the strike was the harassment of em- ployees, including the circulation of such lists of employees entitled ‘‘Seab List’’. And as Mr. Thornton testified, which were not limited only to the names of the employees work- ing but even referred to their relatives. It was because of this activity that we felt there was no choice but to pro- _ tect in some manner the names of the employees, to pro- tect them from further harassment. Now, the only limitation that we ask here or have in the past asked is that the use of the names of these in- dividuals not be used for improper purposes. 493 Now, the Union has rather vociferously contended there is nothing on the seniority rosters but the names of people. I think we are not so naive as to believe, if you want to find the address, you can use the telephone book; but more important in my judgment, Your Honor, is this, that we are merely asking that the names not be used for an improper purpose. This is not a question of not furnishing the names but merely that the Union be required to do only, what they say they are going to do anyway, namely, not mis- use the information. We believe that for this reason it is both reasonable and a necessary provision to insure that the employees are a not, because of providing of these lists, subj..cted to-tidue harrassment. Now, the Union Shop question we have offered, Your Honor, to prove the discrimination that has occurred againt previous members. We have offered the application for membership since the hearing in May. We have offered to show the failure of the Unions to provide membership ap- plication forms. We have offered to show that, even where this information requested in the form of a question- 494 naire was given, there was still no membership ap- plication form or membership being forthcoming; that the only instance in which the application form had deen supplied was by the IAM and when this was subzitted, the individual was not admitted to membership. Now, we again believe, Your Honor, that this is related to the conditions under which the Defendant is operating. We further believe that this is intended, in the opinion of the Fifth Cireuit Court of Appeals in the Trainmen case, to be a matter which should be disposed of by provi- sion making the Union Shop Agreement non-enforceable as to these new employees with respect to whom the dis- crimination clearly has been demonstrated, unless and un- til the Union in question is willing to offer membreship to these new employees. We believe that this is a proper part of the request which we have made and does relate to the ecenditions under which the Carrier must operate. And as we have asserted before, this is not only a matter which relates to the rights of these employees but it is a matter which directly affects the monetary liability of the Carrier itself, for the 495 reason that the Unions have already demonstrated that the approach will be to assert and to contend that these employees must be discharged because of the failure to make an application within a specified time after em- ployment. And on this basis that the Carrier may be sub- jected to severe monetary claims which, even if we win all of them, we will certainly be put to the expense of de- 865 866 fending before the Adjustment Board, and that, because of this, we feel that this is a reasonable portion of the Order to clarify at this time to prevent these disputes aris- ing in the future. In summary, Your Honor, because of the necessity for de- creasing the service that we can provide to the public un- less we are permitted in the limited instances involved in this request to continue to use employees across craft lines and seniority districts and to use supervisory personnel to perform certain work which they and they alone are qualified to perform, to continue to hire people with such qualifications as we ean obtain and placing them into the training program into whatever slot their experience would warrant their being placed and advancing them upon 496 completion of the additional experience with the Rail- road through the training program until they obtain the journeyman position and the concession which all parties have agreed to that the apprentice ratio and the age limitation should not be applicable during this period of strike conditions since we are unable to get fully qualified craft people; and the bridge tending, we believe, because it is totally critical to the operation of the Defendant, that we should be permitted as part of the over-all security to continue the present method of performing this work by supervisors or by contracting it out to security guards ; and, finally, with respect to the seniority rosters and the Union Shop, that we be required to furnish the seniority rosters only for legitimate purposes and that the Order specify that those rosters not be used for any improper purpose, and that the Union security agreement be inoperable until such time as the Union which wishes to enforce it demon- strates that membership is aveilable to the class of em- ployees hired since the strike without discrimination. The (ourt: Do you think that—does the bridge tender, your request with respect to bridge tenders, come 497 under No. 6 or No. 7, or both? Mr. Devaney: It comes under No. 6, Your Honor, not under No. 7. _ The Court: Well, what is it you want? Specifically what is it you want me to authorize under No. 7? Mr. Devaney: Under No. 7, what we have asked and all that we ask under No. 7 is that there be an Order requiring the Defendant te supply the seniority rosters and that the Order— The Court: 8 is seniority rosters. 7 is called ‘‘Security”’ in your Application, and you say that you have had to institute and maintain various secur- ity measures,— Mr. Devaney: Well— The Court: —to protect plant equipment and property; that the only portion of the work covered by any agree- ment is the work of bridge tenders. That’s why I ask you if bridge tenders— 498 Mr. Devaney: Your Honor, I don’t know which— perhaps we are reading something different. I’m reading the Application, on page 3, and No. 7 relates— The Court: Oh well, I— Mr. Devaney: It says, ‘‘ Defendant’’— The Court: I did. I turned to Mr. Wyckoff’s affidavit instead. It was the wrong thing. They are all in here. He divides it into nine points and the Application divides it into eight. I’m sorry. Mr. Devaney: And the Application which I was re- ferring to— The Court: 6 is the bridge tenders. Mr. Devaney: That’s correct. And 7, all we are asking and all we have said— The Court: 7 is the seniority rosters, and 8 is the Union Shop provision. 499 Mr. Devaney: That is correct, Your Honor. The Court: All right. I think, Gentlemen, before I hear from you, if you don’t mind, I would like to break off a few minutes. Take about ten minutes. 867 (Short recess) 868 Argument By Mr. Shapiro i Mr. Shapiro: May it please the Court. | This is an extraordinary Application for relief from the Fl terms of the Injunction which was issued in this proceeding i on October 30, 1964. It is extraordinary because it asks ; that the Carrier be excused from the express requirements of the statute, which says without qualification that Car- riers cannot change rates of pay, rules and working condi- tions as embodied in agreements except as provided in those agreements or as in Section 6 of the Act. Now, there is no exception in the Act for strike condi- tions. We think Congress knew what it was doing 500 when it enacted the statute, that it put that in well aware of the fact that labor disputes do sometimes culminate in strikes. And we also think that collective bar- gaining agreements are negotiated with this background in mind. Now, there is no exception for strike conditions either in the statute or in the collective bargaining agreements with which we are concerned here. The Court of Appeals in the Brotherhood of Railroad Trainmen v. Florida East Coast Ratlway has found such an exception. The United States doesn’t agree that that exception is there and we wish to preserve the position that the statute should be applied as it was written. However, the exception, as found by the Fifth Circuit, governs this Application. Now, this is as we stated in the opening statement a very narrow exception. And the agree- ments govern except to the extent that this Court may authorize departures on a select item-by-item basis and on | a convincing showing that the departures are reasonably necessary to effectuate the Carrier’s right of self-help. Now, this showing has to be based on the totality | 501 of the circumstances surrounding the dispute and the § ‘ Carrier’s position vis-a-vis the Union’s. 869 I think that on this Application it is clear that the rele- vant proof falls into two categories. The general consid- eration relating to the history of the dispute was shown in the prior proceedings in this case and the prior proceedings before this Court of which it can take notice, and particular considerations relating to the item-by-item requests. I would like to turn first to the general considerations: I think the history of this dispute makes it clear that this Carrier is not coming into Court with clean hands. Since this controversy began, the Florida East Coast Railway Company has been found to have violated the Rail- way Labor Act, in one case in the District of Columbia, United States v. Florida East Coast Railway Company; in the instant case, in Brotherhood of Ratlroad Trainmen v. Florida East Coast Ratlway Company, and Brotherhood of Locomotive Engineers v. Florida East Coast Railway Com- pany. It has also been found by this Court to have violated Public Law 88-108, the Emergency Arbitration Statute. When the injunctions were issued last April, 502-1963, in United States v. Florida East Coast Railway Company, and in this Court’s decision last December in United States v. Florida East Coast Railway Company, the Carrier did not comply. It made no effort to operate under the requirements of the statute. In fact, the Court of Appeals has said in the Brotherhood of Railroad Train- men case that it has conducted itself with no pretense at compliance with the Railway Labor Act. Until last Spring, it operated under so-called ‘*Tempo- rary Conditions of Employment’’ with a work force that it had recruited and manned on the Carrier’s property with- out regard to the requirements of the law. Now finally, having been brought to a point where it is ordered to comply with the law, it asks that the heart of the Order directing it to do so be cut out for its operating convenience, At the present time, this Carrier is operating at approxi- mately the same level that it operated prior to the strike. Bi. Mr. Thornton has testified that it is moving 4800 cars a week and that this is about equivalent to the same season two years ago. Now, it has achieved this level up to now hy 503 operating illegally. The work force that it has ac- quired to do this has, the testimony shows, been at a level of about 400 non-operating employees for the last year, approximately, possibly some slight fluctuation. It reached that level under the illegal ‘‘Conditions of Em- ployment’’. Now, in the light of the Carrier’s over-all operation and its much reduced staff, it is obvious that this strike up to now has been a tremendous boon to it, and I think this is probably why the most conspicuous omission from the proof has been any comparative figure on operating revenues. The Carrier runs no passenger service. It carries less than car-load freight, at its convenience; although appar- ently this has recently been a profitable enterprise because it seems to be carrying a good bit of it. It has the cream of the business and less than half its former work force. Now, I think, as far as this Carrier is concerned, that the strike can go on forever and it would not be in the least disturbed. Now, I think nothing in the Court of Appeals’ decision in BRT v. FEC implies that a Carrier’s right to self- 504 help guarantees this kind of a windfall or guarantees that there will be an absolute return to pre-strike conditions. The ultimate object of the Railway Labor Act, as expressed in Section 2, First and 2, Second, is to bring about every reasonable effort on the part of the Carriers and employees to make and maintain agreements and to settle disputes and to do this by collective bargaining. So, when the decision of the Fifth Circuit is applied, it has to be applied in the light and the spirit of the Act. And that spirit is that controversies are to be as narrow as possible. | Now, the proof shows us that FEC’s estimate of any injury to its operation must be taken with a great deal of 870 871 salt. Last May, the issue came up in this proceeding and we were told, that if FEC had to comply with its collective bargaining agreements, the work force would have to be increased by 600 employees or service would drop 50%. Now, this testimony was by the Carrier’s Vice President in charge of personnel and it was buttressed by the testi- mony of the Carrier’s President. Now we are told that there was an error of about 480 employees in that estimate and that the true facts 505 are that FEC will have to reduce their service some 30 to 50% unless it can find somewhere 122, not 600, new employees. Last May we were told, without qualification, that the Carrier didn’t take less than car-load lots. Now we are told that it has been taking them for about a year and been doing it on a permit basis; and that at the present time it’s carrying more less-than-carload on a permit basis than most of the railroads in the country. Now, these discrepancies are explained in part by new operating methods, new machines; but the testimony of Mr. Davidson and Mr. Webb and Mr. Hales, taken as a whole, indicate that. many of these marvelous improvements in op- erating methods had been in effect prior to May; that FEC, subsequent to May, has put a great many more of them into effect and that it will continue to do so in the future, but thus it will cut its work force and it should be able to get along with the collective bargaining agreements. Now, these changes can be expected to continue. The Carrier has shown itself to be resourceful and imaginative in its managerial techniques when it operates illegally ; and we can expect the same resources and imagina- 506 tion to be applied should it be directed to comply with the law. It has closed many facilities unnecessary to it, partic- ularly in light of its present operation which is exclusively freight. And over-all, it’s pretty clear that these wonder- ful machines that Mr. Davidson, Mr. Webb and Mr. Hales — 872 described at some length, the improved operating tech- niques, show that it certainly doesn’t need to expect a drop of 30 to 50% immediately by being required to comply with the collective bargaining agreements. Now, many of the demands that it has made for being excused from the agreements result not from the strike but from purely managerial decisions in relation to the strike. For example, in the Signals and Communications Depari- ment, there’s new equipment there which cannot be oper- ated either by the former employees or apparently by the present employees, according to Mr. Webb’s testimony and his affidavit. Now, the installation of this new equipment is not a reason, I think, to excuse the Carrier from the obligations of the collective bargaining agreements on the ground of strike conditions; and that’s all we are concerned with here. 507 Now, some of the Carrier’s staff difficulties come from other factors. For instance, its recruiting methods have to be considered. The testimony is that the Carrier relies on informal recruiting methods to obtain its employees. It doesn’t advertise; it doesn’t have agents out; the heads of departments call around, visit around; the Director of Personnel calls around and visits around. Yet we are offered an exhibit purporting to show its difficul- ties in recruiting personnel. Last May, Mr. Wyckoff told us it would take some eighteen months to reach the requirements of the collective bargaining agreements. Mr. Hales told us that for his department it would take some eight months to recruit, using whatever his present methods are, a full force and four months to get about half of that force. Now, these are factors which relate to the way the Car- rier tries to get people. The figures that it shows in Ex- hibit II on the number of applicants are in part reflected by its recruiting methods. Now, Exhibit II is interesting because it shows something 873 else about the turnover in this Carrier. The Carrier’s total hiring in 1963 and ten months of 1964 was 850 508 employees against an average force of about 400. Something is happening on this Carrier which causes people to leave it. And this too is a factor not to be attributed, I think, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0262%3A01. Public record. Not legal advice.