Petition for Writ of Certiorari — Detroit & Toledo Shore Line Railroad v. United Transportation Union
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Dttice Supreme Court, U.
FILED
JAN 4 1969
IN THE
SUPREME COURT OF THE UNITED | S'DAANDS Davis, CLERK
OCTOBER TERM, 1968
xo eg 29
THE DETROIT AND TOLEDO SHORE LINE
RAILROAD COMPANY, Petitioner,
v.
BROTHERHOOD OF LOCOMOTIVE FIREMEN AND
ENGINEMEN, Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT.
Suea & GARDNER Francis M. SHEA
Washington, D.C. Ratew J. Moore, Jr.
‘i ’ Davip W. MILLER
Rosison, CurPHEY & O’CoNNELL 734 Fifteenth Street, N.W.
Toledo, Ohio
Of Counsel for Petitioner
Washington, D.C. 20005
James A. WiLcox
1225 Connecticut Avenue, N.W.
Washington, D.C. 20036
Joun M. CurPHEY
425 Libbey-Owens-Ford Bldg.
Toledo, Ohio 43624
Attorneys for Petitioner
INDEX
TasBLe or ConTENTS
Page
Opinions Below. ......-...25-2005.% Ne ke Womens Ne 1
pS errr eee eye ree erer 1
Question dea AG etre et meee on ons ae 2
SE ee ey ee Pe ree 2
OS BEES Ee PREETI ES ALE LEOTLT ORT OTS 3
Reasons for Granting the Writ................... 6
ene ay SU Res ar ain Se kia nia y A SN6 snes 20
Appendices :
A—Railway Labor Act Excerpts.............. la
Ee FRR a ca IE ee a la
ee es cok s Se eee la
Section 2 Seventh.................. la
RMD go oe ceases bars 2a
yk | ae re 2a
TE ai vaeteseaee ce 2a
I Ps kat tS EL et 4a
OES i ereke rl Wye a 5a
I rie ht ei oO ER ee 6a
B—Opinion of Court of Appeals, October 7,1968 8a
C—Opinion of District Court on Motion to Vacate
Judgment, May 12, 1967................ lla
D—Oral Decision of District Court, October 7,
MY oo nae oe Se ek a cre oh soe 6 19a
E—Judgment of Court of Appeals, October 7,
FRR AAS ae a ee i ee st 24a
F—Findings of Fact and Conclusions of Law,
Se a oe, 2 bey 25a
Judgment and Decree of District Court, No-
WO I Io he ko ebb deaths esick. ' Bla
G—Award of Special Board of Adjustment No.
375, November 30, 1965................. 32a
H—National Mediation Board Instructions to
Mediators, May 12, 1960............... 34a
I—Award of Special Board of Adjustment No.
465, September 12, 1966................ 38a
(1)
~—e
J—Clerks v. Santa Fe R. Co., N.D. Ill., 1964...
K—Flight Engineers v. Western Air Lines, 8.D.
N—SP€S R. Co. v. Conductors, Transcript of
Proceedings, April 25, 1967............
TasLe or CrraTIoNns
Cases:
Brotherhood of Railroad Trainmen v. Illinois
Terminal R. Co., No. 66C 96 (3), E.D. Mo.,
May 24, 1966 (unreported), App. p. 56a, infra
Elgm, J. d E. R. Co. v. Burley, 325 U.S. 711
RM gs a a
Pullman Co. v. Order of Ry. Conductors &
Brakemen, 316 F. 2d 556 (7th Cir., 1963), cert.
denied, 375 U.S. 820 (1963).... ...........
6,11
Cases—Continued tee Page
Railway Clerks v. Florida E.C.R. Co., 384 US.
2) errr Lat's. 18, 19
Railway Clerks v. Santa Fe R. Co., 50 CCH Lab.
Cas. 719,299 (N.D. Ill, 1964), App. p. 40a,
ee Se EE ET oe EOE heb hid 13
Rutland Ry. Corp. v. Brotherhood of Locomotwe
Eng., 307 F. 2d 21 (2d Cir., 1962), cert. denied,
372 U.S. 954 (1963), reversing 188 F. Supp. 721
oe eer ererere trey or 10
St. Louis, S.F. & T.R. Co. v. Railroad Yardmas-
ters, 328 F. 24749 (5th Cir., 1964), cert. dented,
vat & Ry | Perper iy eee 8
Skidmore v. Swift & Co., 323 U.S. 134 (1944)... 14
Southern Ry. Co. v. Brotherhood of Locomotwe
Firemen, Etc., 337 F.2d 127 (D.C. Cir., 1964) 11-13
Spokane, Portland & Seattle R. Co. v. Order of
Railway C. & B., 265 F.Supp. 892 (D.D.C.,
POPP Cer Perc hey Pht es cig. 13
Telegraphers v. Chicago & N.W. R. Co., 362 US.
SIND eos k.vv cs dsc rman co oy anes ceeeas 19
Texas & N.O.R. Co. v. Ry. Clerks, 281 U.S. 548
ON Seces snap ns Cine ba pean Pemme eee eee ee: 9
Transportation-Communication Employees Un-
ion v. Illinois Central R. Co., 8.D. Miss., No.
eS RPS PER EET Te eke) Set ere 13, 18
Williams v. Jacksonville Terminal Co., 315 U.S.
OP EEE a et evcvcwevesesese rare bwelys oh passim
Statutes :
Railway Labor Act, 45 U.S.C. § 151, et seq.
Section 2, 45 U.S.C. ¢15la.........-..++.... 19
Section 2 First, 45 U.S.C. § 152 First........ 19
Section 2 Seventh, 45 U.S.C. 4152 Seventh... 7,8,
16, 17,18
eee ee LS eS eee 2, 4, 16
Section 6, 45 U.S.C. $156..........--.0e20ee 3, 5,9
eee Se eS eee passim
ee Die Foal 2 eee 9, 20
Oe ee PED vvrc ccc eves scecvnsvedes 2
Miscellaneous :
Davis, Administrative Law (1958)
Ex Parte No. 256, Increased Freight Rates, 329
LC.C. 854 (1967)
Hearings on S. 3548 before the Special Sub-
committee oj the Senate Judiciary Committee,
86th Cong., 2d Sess., June 28, 1960 (unprinted)
Kroner, Interim Injunctive Relief Under the
Railway Labor Act, 18 N.Y.U. Conference on
Labor 179 (1965)
National Mediation Board, Thirty-Third Annual
Report (1968)
Petr. Br., No. 100, O.T. 1959
Report of Emergency Board No. 147
IN THE Te ale ei?
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1968 —
No.
THE DETROIT AND TOLEDO SHORE. LINE
RAILROAD COMPANY, Petitioner,
v
BROTHERHOOD OF LOCOMOTIVE FIREMEN AND
ENGINEMEN, Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT.
Petitioner prays that a writ of certiorari issue to review
the judgment of the United States Court of Appeals for the
Sixth Circuit entered in the above-entitled case on October
7, 1968.
Opinions Below
The original oral opinion of the district court, set forth
in Appendix D hereto, pp. 19a-23a, infra, is not reported.
The opinion of the district court on motion to vacate the
judgment, set forth in Appendix C hereto, pp. 1la-18a, infra,
is reported at 267 F’. Supp. 572. The opinion of the court of
appeals, set forth in Appendix B hereto, pp. 8a-10a, infra,
is reported at 401 F. 2d 368.
Jurisdiction
The judgment of the court of appeals, set forth in Ap-
pendix E hereto, p. 24a, infra, was entered October 7, 1968.
(1)
7
The jurisdiction of this Court is invoked under 28 US.¢,
§ 1254(1).
Question Presented
A railroad’s right under its existing collective bargain.
ing contract to establish outlying work assignments has
been established conclusively by an adjustment board de.
termination under Section 3 of the Railway Labor Act (45
U.S.C. § 153) and is not disputed by the union. The rail-
road decided, for business reasons, to create an outlying
assignment. Upon learning that, the union served a notice
under Section 6 of the Act (45 U.S.C. § 156) proposing that
the agreement be changed to abrogate the railroad’s right
to establish outlying assignments. The question presented
is:
Does Section 6 of the Act prohibit the railroad from es.
tablishing outlying assignments during negotiations upon
the union’s notice—i.e., does Section 6 prohibit a railroad
from taking action permitted by its existing collective bar-
gaining contract during negotiations upon a union proposal
to amend the contract to prohibit such action?
Statutes Involved
The statute principally involved is Section 6 of the Rail-
way Labor Act (45 U.S.C. § 156):
‘‘Carriers and representatives of the employees shall
give at least thirty days’ written notice of an intended
change in agreements affecting rates of pay, rules, or
working conditions, and the time and place for the be-
ginning of conference between the representatives of
the parties interested in such intended changes shall be
agreed upon within ten days after the receipt of said
notice, and said time shall be within the thirty days
provided in the notice.. In every case where such notice
of intended change has been given, or conferences are
|
|
being held with reference thereto, or the services of the
Mediation Board have been requested by either party,
or said Board has proffered its services, rates of pay,
rules, or working conditions shall not be altered by
the carrier until the controversy has been finally acted
upon as required by Section 5 of this Act, by the Media-
tion Board, unless a period of ten days has elapsed
after termination of couferences without request for
or proffer of the services of the Mediation Board.”’
Other provisions of the Railway Labor Act are also involved
and printed in Appendix A, pp. la-7a, infra.
Statement
The Detroit and Toledo Shore Line Railroad, the peti-
tioner herein, instituted this action to enjoin a strike
threatened by the Brotherhood of Locomotive Firemen and
Enginemen (BLF&E). The BLF&E counterclaimed to en-
join the Shore Line from establishing work assignments
originating at points not previously used as terminal points.
The district court dismissed the Shore Line’s complaint
and granted the injunction sought by the BLF&E. The
court of appeals affirmed. The Shore Line now seeks re-
view by this Court.
The main line of the Shore Line runs from Toledo, Ohio
to Detroit, Michigan. Until 1961, work assignments for the
Shore Line’s crews all started and ended at Lang Yard in
Toledo. However, because of an increasing volume of busi-
ness in Trenton, Michigan, the Shore Line decided to es-
tablish another terminal at that point (pp. 8a, 26a, infra).
Accordingly, in 1961 the Shore Line notified three unions
representing its employees, including the BLF&E, that cer-
tain work assignments would henceforth originate in Tren-
ton. The unions responded by serving the Shore Line with
notices pursuant to Section 6 of the Railway Labor Act (45
4
U.S.C. § 156) proposing certain special working conditions
for employees who would operate out of Trenton. Confer.
ences on the notices failed to settle the matter, which there.
fore was referred to the National Mediation Board for me.
diation. While the matter was pending before the Board,
the Shore Line established two new work assigninents orig.
inating in Dearoad, Michigan, eleven miles north of Trenton
(pp. 8a-9a, 26a, infra).
After the Dearoad work assignments were announced, the
BLF&E abandoned its Section 6 notice proposing a change
in the parties’ agreements, and claimed instead, before
Special Board of Adjustment established under Section 3
of the Railway Labor Act (45 U.S.C. 4 153), that ‘‘the es.
tablishment of these new runs violated’’ the existing collec.
tive agreement between the parties (P.A. 7la-72a;' pp. 9a,
27a, infra). However, the Special Board ruled that the es-
tablishment of outlying work assignments was permissible
under the collective agreement (pp. 9a, 32a, 33a, infra). As
the court below observed, the Special Board’s ruling on the
parties’ ‘‘minor dispute’’ as to the interpretation of the
agreement ‘‘is binding on the parties’’ under Section 3 of
the Railway Labor Act (45 U.S.C. § 153) (pp. 9a, 2a-4a,
infra).?
When the Special Board had confirmed the Shore Line’s
right, under the existing collective agreement, to establish
outlying work assignments, the Shore Line revived its plan
to establish assignments originating at Trenton. Learning
this, the BLF&E served a new Section 6 notice on the Shore
Line, proposing that the existing agreement be amended
to provide that ‘‘all road service runs and/or assignments
will originate and terminate at Lang Yard... .’’ The pro-
posed amendment to the agreement would abrogate the
Shore Line’s right to establish outlying work assignments
(pp. 9a, 27a, infra).
1 Plaintiff-Appellant’s Appendix in the court below.
2 See, e.g., Gunther v. San Diego 4 A.E.R. Co., 382 U.S. 257 (1965).
ee
5
The parties were unable to reach an agreement upon the
BLF&E’s proposal. Consequently, the BLF&E sought medi-
ation by the National Mediation Board. Subsequently, the
Shore Line posted notices announcing the establishment of
two new work assignments originating at Trenton. The
BLF&E threatened to strike, and this action followed (pp.
9a, 27a-28a, infra).
The district court enjoined the Shore Line from ‘‘estab-
lishing or operating a terminal point at Edison Station,
Trenton, Michigan, or any other terminal point not pre-
viously established”’ (pp. 9a, 31a, infra). The injunction
was purportedly grounded on Section 6 of the Railway
Labor Act (45 U.S.C. § 156), which provides that carriers
and unions shall give thirty days’ notice of ‘‘an intended
change in agreements affecting rates of pay, rules, or work-
ing conditions,’’ and that ‘* [iJn every case where such no-
tice of intended change has been given, ... rates of pay,
rules, or working conditions shall not be altered by the car-
rier until the controversy has been finally acted upon as re-
quired by Section 5 of this Act, by the Mediation Board
_2? (pp. 9a, 30a, infra)#
The Shore Line moved for reconsideration. It pointed
out that in Williams v. J acksonville Terminal Co., 315 U.S.
386, 402-403 (1942), this Court had held that under Section
6 the making of a proposal for an agreement ‘‘does not
change the authority of the carrier’’ because the ‘¢prohibi-
tions of § 6 against changes of wages or conditions pending
bargaining .. . are aimed at preventing changes in condi-
tions previously fixed by collective bargaining agreements”’
3Tnitially, the injunction was grounded on Section 5 of the Act (45
U.S.C. § 155) as well as on Section 6 (p. 30a, infra). Section 5 contains
a status quo requirement that applies after the Mediation Board terminates
its services. See p. 5a, infra. The Mediation Board has not terminated
its services in this case (pp. 12a, 28a, infra). Accordingly, the district
court relied only on Section 6 when it denied the Shore Line’s motion to
vacate the judgment (pp. 16a-18a, infra), as did the court of appeals
when it affirmed (pp. 9a, 10a, infra).
(emphasis added). In addition, the Shore Line pointed ot
that the National Mediation Board has stated repeatedly,
in accordance with this Court’s holding in Williams, that
‘“the serving of a Section 6 notice for a new rule ora change
in an existing rule does not operate as a bar to carrier ae.
tions which are taken under rules currently in effect”’—i.e,
that ‘‘Section 6 is intended to maintain the contract as it
existed between the parties until the provisions of the aet
have been complied with.’? NMB, 33d Ann. Rep. 36 (1968),
The district court held, however, that this Court’s holding
in Williams applies only to the rare case in which there js
no collective agreement in existence, and that the Mediation
Board had misinterpreted Section 6 (pp. 15a-17a, infra),
On appeal, the Sixth Circuit affirmed. The Shore Line
contended, as it had in the district court, that the status quo
provision in Section 6 applies only to changes in rates of
pay, rules, or working conditions which are embodied in
the collective bargaining contract. The court of appeals
rejected that contention, however, holding it ‘‘lacking in
merit for the reasons stated in the opinion of the District
Judge’’ (pp. 9a-10a, infra).
The Shore Line now seeks review by this Court.
6
Reasons for Granting the Writ
In Locomotive Engineers v. M.-K.-T. R. Co., 363 U.S. 528
(1960), this Court examined the nature of a carrier’s obliga-
tion to maintain the ‘‘status quo’’ during the pendency of a
‘‘minor’’ dispute as to the interpretation of existing agree-
ments. In this case we ask the Court to determine the nature
of a carrier’s obligation to maintain the ‘‘status quo’’ dur-
ing the pendency of a ‘‘major’’ dispute as to a proposed
change in agreements. There is no more important ques-
‘For the distinction between the “major” and “minor” disputes of the
railway labor world, see Elgin, J. d E. R. Co. v. Burley, 325 U.S. 711, 723
(1945).
—
7
tion with respect to railway labor relations before the courts
today. We believe it deserves review.
1. The decision below is directly in conflict with applica-
ble decisions of this Court. The court below held that Sec-
tion 6 prohibits changes in working conditions following
the service of a Section 6 notice when the carrier’s
right to make the changes under existing agreements
‘s indisputable and, indeed, is conceded (pp. 9a-10a,
{5a-18a, 22a, infra). That holding is contrary to this
Court’s decision in Williams v. Jacksonville Terminal
Co., supra, 315 US., at 401-403. In that case, redeaps at
the Dallas Terminal, who previously were unrepresented,
selected a collective bargaining representative. The repre-
sentative then served the Terminal with a request ‘‘for
a conference to negotiate an agreement for working condi-
tions and other related subjects. . . 2? 315 US., at 402. For
at least thirteen years before that, redeaps had been per-
mitted to keep their tips without accounting for them to the
Terminal. 33 F.Supp. 244, at 248. While the request for
a contract was pending, however, the Fair Labor Standards
Act became effective. The Terminal notified the redcaps
that henceforth they would be required to account for their
tips and the Terminal would pay them the difference be-
tween the tips and the statutory minimum wage. The red-
caps contended that the Terminal had changed their rates
of pay and working conditions in violation of the status quo
requirements of Sections 2 Seventh ® and 6 of the Railway
5 Section 2 Seventh provides that “[nJo carrier .. . shall change the
rates of pay, rules, or working conditions of its employees, as a class as
embodied in agreements except in the manner prescribed in such agree-
ments or in Section 6 of the Act” (45 U.S.C. § 152 Seventh, p. la, infra).
This provision does not bar a carrier from changing rates of pay, rules,
or working conditions which are not embodied in agreements. Illinois
Central R. Co. v. Brotherhood of Loc. Fire. & Eng., 332 F.24 850 (7th
Cir., 1964) ; St. Louis, S. F. & T. R. Co. v. Railroad Yardmasters, 328 F.2d
749 (5th Cir., 1964).
8
Labor Act. This Court rejected that contention, holding
that:
‘‘The institution of negotiations for collective bar.
gaining does not change the authority of the carrier,
The prohibitions of 46 against changes of wages or
conditions pending bargaining and those of § 2, Sey.
enth, are aimed at preventing changes in conditions
previously fixed by collective bargaining agreements,
Arrangements made after collective bargaining ob.
viously are entitled to a higher degree of permanency
and continuity than those made by the carrier for its
own convenience and purpose.’’ 315 U.S., at 402-403,
The decision below is contrary to that unqualified holding
in Williams. The district court was of the view that the
holding in Williams applies only to cases in which the par-
ties do not yet have a collective bargaining contract—the
situation in Williams. See pp. 16a-17a, infra. But that isa
fact about Williams that looks the other way. As this Court
stated, ‘‘{a]rrangements made after collective bargaining
obviously are entitled to a higher degree of permanency
and continuity than those made by the carrier for its own
convenience and purpose.’’ Therefore, the rights of a car-
rier after the parties have entered into a collective bargain-
ing contract (as in this case) should be entitled to more,
not less, protection than the rights of a carrier before there
is any contract. The decision of the Special Board of Ad-
justment (p. 4, supra; p. 32a, infra) established conclusively
that under its existing agreements the Shore Line had the
right to establish outlying assignments.®
6 What the district court said with respect to Williams was that this
Court had “held that section 6 did not apply . . . because section 6 applies
only to intended changes in collective bargaining agreements and there
was no agreement in existence to change” (p. 17a, infra). However, this
9
This Court has never retreated from its holding in Wil-
liams. On the contrary, in Order of Conductors v. Pitney,
396 U.S. 561, 565 (1946), it reiterated the view that ‘‘the
only conduct which would violate §6 is a change of those
working conditions which are ‘embodied’ in agreements.’’
We submit that there is no sound basis for narrowing the
rule of Williams and Pitney. But in any event, if that rule
is to be limited to the extremely rare case in which there
is no collective contract at all, as was held below, it should
be this Court that restricts its previous holdings, not a
lower court.
9. The decision below also is contrary to decisions by
other courts of appeals and by several district courts.
a. The decision below conflicts directly with two decisions
of the Seventh Circuit. In Hilbert v. Pennsylvania R. Co.,
990 F.2d 881 (7th Cir., 1961), the Seventh Circuit held that
a railroad’s right to change the location of crew terminals,
Court has indicated that a proposal to make an agreement when “there [is]
no agreement in existence to change” is a request for a “change in agree-
ments” within the meaning of Section 6. In its landmark exposition of
the Railway Labor Act in Elgin, J. é E. R. Co. v. Burley, 325 U.S. 711,
723 (1945), the Court said that the “major” dispute procedures of the Act
(prescribed by Sections 5, 6 and 10, 45 U.S.C. §§ 155, 156, 160) relate “to
disputes over the formation of collective bargaining agreements or efforts
to secure them,” and that such disputes “arise where there is no such agree-
ment or where it is sought to change the terms of one... .” (emphasis
added). Otherwise, in the absence of a preexisting agreement a union
could strike to obtain an agreement without first exhausting the major
dispute procedures, something Congress obviously did not intend when it
enacted the Railway Labor Act “to provide a machinery to prevent strikes,”
Teras & N.O.R. Co. v. Ry. Clerks, 281 U.S. 548, 565 (1930). Therefore,
the redeaps’ written demand for a collective bargaining agreement in Wil-
liams was sufficient to invoke the procedures of Section 6 and thus to bring
into play the status quo requirement of Section 6. See 315 U.S., at 402-
403; cf. Pullman Co. v. Order of Ry. Conductors & Brakemen, 316 F.2d
556, 562 (7th Cir., 1963). What the Court held in Williams was not that
Section 6 does not apply in the absence of a prior agreement, as the
district court believed, but that the carrier’s action did not violate Seetion
6 because it did not violate an existing agreement. 315 U.S., at 402-403.
an
10
following the service of a notice proposing modification of
existing agreements with respect to the matter (see 29
F.2d, at 885; 307 F.2d, at 24-25 n. 1), turned on whether
such changes were permissible under the applicable rule
established by the existing agreements—‘‘[t]hat rule re.
mains im effect.’’ 290 F.2d, at 885. Similarly, in Illinois
Central R. Co. v. Brotherhood of Railroad Train., 398 F.24
973 (7th Cir., 1968), the Seventh Circuit approved a holding
that a railroad’s right to reduce the number of trainmen
assigned to certain crews, following the service of a notice
proposing a prohibition of such reductions (398 F.2d, at
975 n. 2), depended on whether the reductions were per.
mitted by rules already in existence. 398 F.2d, at 975, 979,
See also Rutland Ry. Corp. v. Brotherhood of Locomotive
Eng., 307 F.2d 21 (2d Cir., 1962), reversing 188 F. Supp.
721 (D. Vt., 1960), in which the Second Circuit reached con-
clusions similar to those of the Seventh Circuit in Hilbert.
In each of these cases, the unions were denied injunctive
relief based on the status quo provision in Section 6 in
the absence of an adjustment board determination that the
carrier’s actions were prohibited by existing rules. 290
F.2d, at 882, 885-886; 398 F.2d, at 975, 979; 188 F. Supp.,
at 723, 728. In the case now before this Court, however,
the union was granted such relief notwithstanding an ad-
justment board determination that the carrier’s actions
were permitted by existing rules. See p. 4, supra; p. 32a
infra. Thus, these decisions are squarely in conflict.’
7In the court below, respondent contended that the cases referred to
above are “not in point” because they “involved minor as well as major
disputes.” In each case the parties disagreed as to whether the carrier's
actions were permitted by existing rules. Thus, in addition to the major
dispute created by the service of a Section 6 notice proposing a change
in the applicable agreement, each case also involved a minor dispute as
to the interpretation of the agreement. So, too, in the instant case, there
once was a minor dispute between the parties as to the Shore Line’s right
under the existing agreement to establish outlying assignments. That dis-
pute has now been determined, in the Shore Line’s favor, and it is conceded
——_——
11
b. The decision below also is directly in conflict with a
decision of the District of Columbia Circuit, Southern Ry.
Co. ¥. Brotherhood of Locomotive Firemen, Etc., 337 F.2d
127 (D.C. Cir., 1964). In that case the Southern served the
BLF&E with a notice proposing the abrogation of rules re-
quiring assignment of firemen to diesel locomotives. 337
F.2d, at 130. For years the collective agreement had pro-
vided that ‘‘(a] fireman . . . shall be employed on all loco-
motives,’ and, accordingly, the Southern had assigned fire-
men to all locomotives including diesel locomotives. 337
F.2d, at 129. However, it began operating diesel locomo-
tives without firemen, claiming that the existing agreement
only required it to place firemen on such locomotives when
there were firemen available who were on the seniority
roster when the agreement was made. The BLF&E sought
an injunction
‘«.. because the Section 6 notice served by Southern,
proposing to change the existing agreement with re-
spect to use of firemen on locomotives, was still pend-
ing before the National Mediation Board and Section
6 of the Railway Labor Act prevented the change in
working conditions involved in operating trains with-
out firemen in such circumstances.’’ 337 F.2d, at 131.
that the existing agreement does not prohibit the establishment of such
assignments. See p. 4, supra; p. 32a, infra. That fact obviously does not
distinguish the Shore Line’s ease; it makes it a fortiori.
Not only was the union in Hilbert denied a status quo order based on
Section 6 (the aspect of the case that is relevant here) but it was also
denied a status quo order based on Locomotive Engineers v. M.-K.-T. R.
Co., supra, 363 U.S. 528—+.e., an order prohibiting carrier action pending
determination of the parties’ minor dispute. See 290 F.2d, at 885. In the
Illinois Central ease, on the other hand, the court required the carrier to
preserve the “status quo” pending a determination of the parties’ minor
dispute; an adjustment board eventually determined that dispute in the
union’s favor; and at that point entry of a status quo order based on
Section 6 was quite properly held to be appropriate. See 398 F.2d, at
975, 976, 979.
12
The district court granted injunctive relief, and the court
of appeals affirmed. The court of appeals reasoned that to
allow ‘‘a change in the long-standing interpretation , , .
which had been given by the parties to the existing cop.
tract’’ would ‘‘in substance and effect change the contraget
itself.’’ 337 F.2d, at 132. However, the court went on to hold
—and this is the salient aspect of the decision for present
purposes—that the injunction could not remain in effect if
an adjustment board were to determine that operation of
diesels without firemen was permissible under the existing
agreement:
‘*[W]e think that the District Court properly or.
dered . . . that the injunction will remain effective until
either the NRAB interprets the contract in Southern’s
favor or until the contract is modified or changed under
the Railway Labor Act. The NRAB of course is not
ordinarily concerned with Section 6 proposals, but here
the contract change proposed under Section 6 would
be put into effect immediately by the change in the
long-standing prior interpretation and application of
the old contract. To be effective and to effectuate the
command of Section 6, the injunction under the Sec-
tion 6 claim must, pending exhaustion of the statutory
processes for negotiation of a new contract under the
Act, properly preclude such a change in interpretation
until such change is authorized by the NRAB, even
granting that ordinarily the change could not be en-
joined.’’ 337 F.2d, at 132-133.
In short, notwithstanding the carrier’s long-established
practice, the court of appeals held that the injunction against
the operation of diesels without firemen could not remain in
effect in the face of an adjustment board determination that
such operation was permitted by the existing agreement.
But in the case now before this Court, the Sixth Circuit
_
—
13
an injunction against the establishment of outlying
assignments after an adjustment board determination that
the establishment of such assignments is permitted by the
existing agreement. The two decisions are irreconcilable.
ce. The decision below also is contrary to the considered
view of the Fourth Circuit as to the meaning of this Court’s
decision in Williams:
‘«., the prohibitions of [Sections 2 Seventh and 6)
fall short of unilateral changes made in accordance with
the terms of the applicable agreements and are limited
to changes in those working conditions which are em-
bodied in the agreement. See Williams v. Jacksonville
Terminal Company. .- -”’ Norfolk & P.B.L.R. Co. v.
Brotherhood of Rail. Train., 248 F.2d 34, 41 (4th Cir.
1957).
d. In addition, the decision below conflicts directly with
four district court decisions—in the Northern District of
Ilinois, Railway Clerks v. Santa Fe R. Co., 50 CCH Lab.
Cas. 19,299 (N.D. Il, 1964), pp. 40a-46a, infra; in the
Southern District of California, Flight Engmeers v. West-
ern Air Lines, 43 CCH Lab. Cas. 9] 17,064 (S.D. Cal., 1961),
pp. 47a-55a, infra; in the Eastern District of Missouri,
Brotherhood of Railroad Trainmen v. Illinois Terminal R.
Co., No. 66 C 96 (3), May 24, 1966 (unreported), pp- 56a-59a,
infra; and in the Southern District of Mississippi, Trans-
portation-Communication Employees Union v. Illinois Cen-
tral R. Co., No. 4192, October 4, 1967 (unreported), pp. 60a-
63a, infra.® Thus, for example, in Flight Engineers v. West-
ern Air Lines, supra, the court held that:
8 The oral opinion in Spokane, Portland & Seattle R. Co. V. Order of
Railway C. & B., 265 F. Supp. 892, 894 (D.D.C., 1967), appears to be to
the contrary, but the conflicting implications of that opinion were nega-
tived by the court when it entered its order (pp. 64a-67a, infra).
~
14
»
‘*, .. the prohibitions of Section 6 against changes
in rules or working conditions pending bargaining, . . .
apply only to rules and working conditions previously
fixed by collective bargaining agreements. Williams y,
Jacksonville Terminal Co. . . .’’? 43 CCH Lab. Cas., at
p. 24,915, pp. 54a-55a, infra.
3. The decision below also is contrary to the long-standing
interpretation of Section 6 by the National Mediation Board,
the administrative agency which administers the relevant
sections of the Railway Labor Act.® In accordance with
this Court’s ruling in Williams, the Mediation Board has
stated in its annual reports for a number of years that:
‘‘ Another type of situation involves the case where
an organization serves a proper section 6 notice on the
carrier proposing to restrict the right of the carrier to
unilaterally act in a certain area. Handling of the pro-
posal through various stages of the Railway Labor
Act has not been completed when complaints will some-
times be made that the carrier is not observing the ‘sta-
tus quo’ provisions of section 6 when it institutes an
action which would be contrary to the agreement if the
proposed section 6 notice had at that time been accepted
by both parties.
‘‘Section 6 states that where notice of intended
change in an agreement has been given, rates of pay,
rules, and working conditions as expressed in the agree-
ment shall not be altered by the carrier until the con-
troversy has been finally acted upon in accordance with
® Administrative practice embodying an interpretation of a statute, con-
sistently followed over a long period, is entitled to great weight
in construing the statute. See, e.g., 1 Davis, Administrative Law, § 5.06
(1958) ; Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
15
specified procedures. Positively stated, section 6 is in-
tended to maintain the contract as it existed between
the parties until the provisions of the act have been
complied with. When the procedures of the act have been
exhausted without an agreement between the parties
on the 30-day notice of intended change, the carrier may
alter the contract to the extent indicated in the 30-day
notice, and the organization is free to take such action
as it deems advisable under the circumstances. The
other provisions of the contract are not affected and
remain unchanged. In brief, the rights of the parties
which they had prior to serving the notice of intention
to change remain the same during the pertod the pro-
posal is under consideration, and remain so until the
proposal is finally acted upon. The Board has stated
in instances of this kind that the serving of a section
6 notice for a new rule or a change in an existing rule
does not operate as a bar to carrier actions which are
taken under rules currently in effect.’’ NMB, 33d Ann.
Rep. 36 (1968) (emphasis added).
As the Mediation Board indicated in the foregoing pas-
sage in its most recent annual report, it has been faced
with the question presented here many times in the past
in performing its duties under the Railway Labor Act. For
example, on May 12, 1960, the Board issued instructions to
its mediators in which it set forth its interpretation of the
status quo provision in Section 6. See pp. 34a-37a, infra.
Those instructions quoted the Board’s response to a com-
plaint that a railroad had violated its obligation to main-
tain the ‘‘status quo’’ by changing ‘‘territorial limits and
assignments’’ following the service of a Section 6 notice
regarding the matter (p. 35a, infra) :
a
16
‘The Board considered your letter of August 10,
1956 in Executive Session on August 16, 1956. The
Carrier hes taken the position that the proposed re.
arrangement of sections and the consequent changes ip
forces are permissible under the present agreement,
and if a dispute exists as to the application of the pres.
ent rules it should be taken before the National Rail.
road Adjustment Board.
‘¢The National Mediation Board does not understand
Section 6 of the Railway Labor Act to mean that pro-
posed revisions of agreement rules and the invocation
of this Board’s services on such proposed changes has
the effect of staying the application of existing rules
unless and until such existing rules are amended or re-
vised.
‘*In view of the language of Section 2, Seventh of
the Railway Labor Act stating ‘No carrier, its officers,
or agents shall change the rates of pay, rules, or work-
ing conditions of its employees, as a class as embodied
in agreements except in the manner prescribed in such
agreements or in section 6 of this act.’, the Board fails
to find any basis for complying with your request.”
As indicated in its annual reports, the Board has consist-
ently interpreted Section 6 in this fashion for many years.”
4. Morecver, we think it reasonably clear on the face of the
Railway Labor Act that the decision below was in error—
t.e., that Section 6 means just what this Court said it meant
in Williams. Prior to the service of a Section 6 notice, the
carrier’s obligations are governed by Section 2 Seventh of
the Act (45 U.S.C. § 2 Seventh), which provides that ‘‘[n]Jo
10 At least one adjustment board established under Section 3 of the Act
likewise has ruled that a Section 6 notice does not operate as a bar to
earrier action taken under rules currently in effect. See pp. 38a-39a,
infra. We are aware of no adjustment board decisions to the contrary.
17
carrier... shall change the rates of pay, rules, or working
conditions of its employees, as a class as embodied in agree-
ments except in the manner prescribed in such agreements
or in Section 6 of the Act.’’ (See p. 7, n. 5, supra.) The first
sentence of Section 6 then provides that “ [cJarriers and
representatives of the employees shall give at least thirty
days’ written notice of an intended change in agreements
affecting rates of pay, rules, or working conditions,’’ and
the second sentence of Section 6 goes on to provide that
«[jJn every case where such notice of intended change has
been given, .. . rates of pay, rules, or working conditions
shall not be altered by the carrier until the controversy has
been finally acted upon... by the Mediation Board’’ (45
U.S.C. § 156).
The phrase ‘‘rates of pay, rules, or working conditions”’
in the second sentence of Section 6 is literally unrestricted.
But Congress did not intend the phrase to be unrestricted
in application. No one contends, for example, that service
of a notice proposing a change in agreements relating to
terminal points precludes a carrier from changing the num-
ber of men assigned to train crews if the parties’ agree-
ments permit such changes—+.e., no one contends that the
service of a Section 6 notice precludes a carrier from chang-
ing ‘‘working conditions’’ that are wholly unrelated to the
subject matter of the notice. The question, therefore, is
what restriction did Congress intend? The answer to that,
we submit, is indicated by the context in which Congress
used the phrase. Section 2 Seventh provides that no car-
rier ‘‘shall change the rates of pay, rules, or working con-
ditions of its employees, as a class as embodied in agree-
ments except in the manner prescribed . . . in Section 6,’’
and Section 6 then prescribes the procedure by which
changes in such rates of pay, rules, or working conditions
may be effected. Accordingly, the phrase ‘‘rates of pay,
rules, or working conditions,’’ «s used in the second sen-
aa
18
tence of Section 6, should be read to mean what it means
in Section 2 Seventh and the first sentence of Section 6
i.e., rates of pay, rules, or working conditions that are fixed
by the parties’ agreements. That is what Williams held,
See pp. 7-8, supra. Indeed, that construction of Section §
was supported by virtually all relevant precedent until the
decisions below in this case. See pp. 7-16, supra."
5. As we said at the outset, there is no more important
question before the courts today, with respect to railroad
labor relations, than is presented by this case. That is dem.
onstrated, we submit, by the substantial volume of recent
litigation with respect to the issue, which we have cited
above. See pp. 9-14, supra. The decision below will have
far-reaching adverse effects on both railroad operations
and collective bargaining.
It requires little imagination to appreciate the adverse
effect on railroad operations if it should become the law,
as the Sixth Circuit held in this case, that simply by serving
a notice proposing the restriction of a carrier’s rights under
existing agreements a union can abrogate those rights for
as long as it takes the parties to exhaust statutory proce-
dures that are ‘‘purposely long and drawn out.’’ Railway
Clerks v. Florida E. C. R. Co., 384 U.S. 238, 246 (1966). To
take a single example from many that might be cited, in
Transportation-Communication Employees Union v. Illinois
Central R. Co., p. 13, supra, pp. 60a-63a, infra, a railroad
installed expensive computerized communications equipment
that would greatly enhance its ability to serve the public effi-
ciently and safely. The Telegraphers served the railroad with
a notice proposing an agreement regulating the use of the
equipment. The Telegraphers then sought an injunction,
claiming that the status quo provision of Section 6 precluded
the railroad from discontinuing older methods of communi-
11 See also Kroner, Interim Injunctive Relief Under the Railway Labor
Act, 18 N.Y.U. Conference on Labor 179, 190.
19
cation and using the new equipment while the union pro-
posal was pending. The court that decided the instant case
apparently would have granted such an injunction. Yet it is
generally accepted that in order to meet the nation’s trans-
portation needs, the railroad industry must do far more
than it has to modernize its equipment and automate opera-
tions. See Ex Parte No. 256, Increased Freight Rates, 329
LC.C. 854, 873-874 (1967). The decision below will interfere
with that process. It will discourage operational changes
intended to promote efficiency and safety.
Moreover, the decision below will have a stultifying ef-
fect on collective bargaining, because of the nature of the
demands and claims it will encourage. The decision would
permit a union, simply by serving a Section 6 notice, to
obliterate rights under existing agreements and obtain uni-
laterally what the union may not even hope to obtain through
bargaining. That is wholly inconsistent with the principal
purpose of the ‘¢major’’ dispute procedures of the Railway
Labor Act, to ‘‘avoid any interruption to commerce or to
the operation of any carrier engaged therein’’ by requiring
carriers and unions alike ‘‘to exert every reasonable effort
to make and maintain agreements’’ (45 U.S.C. §§ 151a(1),
152 First). As this Court itself has observed, the ‘‘ processes
of bargaining and mediation”’ called for by the Act would
“become a sham’’ if a party ‘‘eould unilaterally achieve
what the Act requires be done by the other orderly pro-
cedures.’ Railway Clerks v. Florida E. C. R. Co., supra,
384 U.S., at 247 (1966).
The dispute in Telegraphers V. Chicago & N. W. R. Co.,
962 U.S. 330 (1960), can be used to illustrate the point. In
that case this Court upheld a Section 6 notice proposing an
agreement that ** [nJo position in existence on December 3,
1957, will be abolished or discontinued except by agreement
_ »? 362 U.S., at 332. In July 1960, after this Court’s
20
decision, bargaining was resumed. Two years later, in July
1962, the parties exhausted the ‘‘major’’ dispute procedures,
and the Telegraphers called a strike. Two months later an
agreement was reached. Emergency Board No. 147, ap.
pointed by the President to investigate the dispute pursuant
to Section 10 of the Railway Labor Act (45 U.S.C. § 160),
did not recommend the ‘‘ job freeze’’ requested by the Teleg-
raphers (see Report of Emergency Board No. 147), and the
parties’ agreement did not give the Telegraphers such a
‘*freeze’’. Yet, under the decision below, the Telegraphers
would have had the ‘‘job freeze’’ requested in their notice
by operation of law throughout the extended period of the
negotiations, a period during which the railroad eliminated
a substantial number of unneeded positions pursuant to the
existing collective agreement. See Report of Emergency
Board No. 147, p. 17. That result would have been particu-
larly incongruous in view of the fact that the Telegraphers
indicated in their brief in this Court that bargaining might
modify their demands (see Petr. Br., No. 100, O.T. 1959, pp.
41-42), and their counsel testified during hearings involving
this Court’s decision that ‘‘as everyone knows, a proposal
under the Railway Labor Act is the starting point, not the
end of collective bargaining.’’ Hearings on S. 3548 before
the Special Subcommittee of the Senate Judiciary Commit-
tee, 86th Cong., 2d Sess., June 28, 1960, p. 186 (emphasis
added).
21
We respectfully submit that this case warrants review by
this Court.
Conclusion
For the foregoing reasons, a writ of certiorari should
be granted.
Respectfully submitted,
Spea & GARDNER Francis M. SHEA
Washington, D.C. meen Es Moone, Jr.
, avip W. MILLER
— ee 734 Fifteenth Street, nw.
of Counsel for Petitioner Washington, D.C. 20005
James A. WILCOX
1225 Connecticut Avenue, N.W.
Washington, D.C. 20036
Joun M. CurPHEY
425 Libbey-Owens-Ford Bldg.
Toledo, Ohio 43624
Attorneys for >." er
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:
-_
la
Railway Labor Act Excerpts
APPENDIX A
Railway Labor Act
(45 U.S.C. § 151, et seq.)
(Excerpts)
GENERAL PuRPOSsES
Section 2 (45 U.S.C. § 151la). The purposes of the Act
are: (1) To avoid any interruption to commerce or to the
operation of any carrier engaged therein; (2) to forbid
any limitation upon freedom of association among em-
ployees or any denial, as a condition of employment or
otherwise, of the right of employees to join a labor organ-
ization; (3) to provide for the complete independence of
carriers and of employees in the matter of self-organiza-
tion; (4) to provide for the prompt and orderly settlement
of all disputes concerning rates of pay, rules, or working
conditions; (5) to provide for the prompt and orderly
settlement of all disputes growing out of grievances or
out of the interpretation or application of agreements
covering rates of pay, rules, or working conditions.
GENERAL DuTIEs
Section 2 First (45 U.S.C. § 152 First). It shall be the
duty of all carriers, their officers, agents, and employees
to exert every reasonable effort to make and maintain
agreements concerning rates of pay, rules, and working
conditions, and to settle all disputes, whether arising out
of the application of such agreements or otherwise, in
order to avoid any interruption to commerce or to the
operation of any carrier growing out of any dispute
between the carrier and the employees thereof .
Section 2 Seventh (45 U.S.C. § 152 Seventh). No carrier,
its officers, or agents shall change the rates of pay, rules,
2a
Railway Labor Act Excerpts
or working conditions of its employees, as a class as em.
bodied in agreements except in the manner prescribed in
such agreements or in Section 6 of the Act.
Szotion 3 (45 U.S.C. § 153). First. There is hereby es.
tablished, a Board to be known as the ‘‘ National Railroad
Adjustment Board,’’ the members of which shall be selected
within thirty days after approval of this Act, and it is
hereby provided—
(i) The disputes between an employee or group of em.
ployees and a carrier or carriers growing out of griey-
ances or out of the interpretation or application of agree-
ments concerning rates of pay, rules, or working condi-
tions, including cases pending and unadjusted on the date
of approval of this Act, shall be handled in the usual man-
ner up to and including the chief operating officer of the
carrier designated to handle such disputes; but, failing to
reach an adjustment in this manner, the disputes may be
referred by petition of the parties or by either party to
the appropriate division of the Adjustment Board with
a full statement of the facts and all supporting data bear-
ing upon the disputes.
(m) The awards of the several divisions of the Adjust-
ment Board shall be stated in writing. A copy of the awards
shall be furnished to the respective parties to the contro-
versy, and the awards shall be final and binding upon both
parties to the dispute. In case a dispute arises involving
an interpretation of the award the division of the Board
upon request of either party shall interpret the award in
the light of the dispute.
Second. Nothing in this section ‘shall be construed to
prevent any individual carrier, system, or group of carriers
——
3a
Railway Labor Act Excerpts
and any class or classes of its or their employees, all acting
through their representatives, selected in accordance with
the provisions of this Act, from mutually agreeing to the
establishment of system, group, or regional boards of ad-
justment for the purpose of adjusting and deciding dis-
putes of the character specified in this section. In the
event that either party to such a system, group, OF regional
board of adjustment is dissatisfied with such arrangement,
it may upon ninety days’ notice to the other party elect
to come under the jurisdiction of the Adjustment Board.
If written request is made upon any individual carrier
by the representative of any craft or class of employees of
such carrier for the establishment of a special board of
adjustment to resolve disputes otherwise referable to the
Adjustment Board, or any dispute which has been pending
before the Adjustment Board for twelve months from the
date the dispute (claim) is received by the Board, or if any
carrier makes such a request upon any such representative,
the carrier or the representative upon whom such request
ig made shall join in an agreement establishing such a
board within thirty days from the date such request is
made. The cases which may be considered by such board
shall be defined in the agreement establishing it. Such
board shall consist of one person designated by the carrier
and one person designated by the representative of the em-
ployees. If such carrier or such representative fails to
agree upon the establishment of such a board as provided
herein, or to exercise its rights to designate a member of
the board, the carrier or representative making the request
for the establishment of the special board may request the
Mediation Board to designate a member of the special
board on behalf of the carrier or representative upon
whom such request was made. Upon receipt of a request
for such designation the Mediation Board shall promptly
make such designation and shall select an individual as-
sociated in interest with the carrier or representative he is
to represent, who, with the member appointed by the car-
rier or representative requesting the establishment of the
special board, shall constitute the board. Each member of
4a
Railway Labor Act Excerpts
the board shall be compensated by the party he ig to
represent. The members of the board so designated shall
determine all matters not previously agreed upon by the
carrier and the representative of the employees with re.
spect to the establishment and jurisdiction of the board,
If they are unable to agree such matters shall be deter.
mined by a neutral member of the board selected or ap.
pointed and compensated in the same manner as is herein.
after provided with nespect to situations where the
members of the beard are unable to agree upon an award.
Such neutral member shall cease to be a member of the
board when he has vetermined such matters. If with re.
spect to any dispute or group of disputes the members of
the board designated by the carrier and the representative
are unable to agree upon an award disposing of the dispute
or group of disputes they shall by mutual agreement select
a neutral person to be a member of the board for the con-
sideration and disposition of such dispute or group of
disputes. In the event the members of the board designated
by the parties are unable, within ten days after their fail-
ure to agree upon the award, to agree upon the selection
of such neutral person, either member of the board may
request the Mediation Board to appoint such neutral per-
son and upon receipt of such request the Mediation Board
shall promptly make such appointment. The neutral per-
son so selected or appointed shall be compensated and re-
imbursed for expenses by the Mediation Board. Any two
members of the board shall be competent to render an
award. Such awards shall be final and binding upon both
parties to the dispute and if in favor of the petitioner,
shall direct the other party to comply therewith on or
before the day named. Compliance with such awards shall
be enforceable by proceedings in the United States district
courts in the same manner and subject to the same provi-
sions that apply to proceedings for enforcement of com-
pliance with awards of the Adjustment Board.
Section 5 (45 U.S.C. § 155). First. The parties, or either
——
5a
Railway Labor Act Excerpts
party, to a dispute between an employee or group of em-
ployees and a carrier may invoke the services of the Media-
tion Board in any of the following cases:
(a) A dispute concerning changes in rates of pay, rules,
or working conditions not adjusted by the parties in con-
ference.
(b) Any other dispute not referable to the National
Railroad Adjustment Board and not adjusted in conference
between the parties or where conferences are refused.
The Mediation Board may proffer its services in case
any labor emergency is found by it to exist at any time.
in either event the said Board shall promptly put itself
in communication with the parties to such controversy,
and shall use its best efforts, by mediation, to bring them
to agreement. If such efforts to bring about an amicable
settlement through mediation shall be unsuccessful, the
said Board shall at once endeavor as its final required
action (except as provided in paragraph third of this sec-
tion and in Section 10 of this Act) to induce the parties to
submit their controversy to arbitration, in accordance with
the provisions of this Act.
If arbitration at the request of the Board shall be re-
fused by one or both parties, the Board shall at once notify
both parties in writing that its mediatory efforts have
failed and for thirty days thereafter, unless in the inter-
vening period the parties agree to arbitration, or an emer-
gency board shall be created under Section 10 of this Act,
no change shall be made in the rates of pay, rules, or work-
ing conditions or established practices in effect prior to the
time the dispute arose.
Section 6 (45 U.S.C. § 156). Carriers and representa-
tives of the employees shall give at least thirty days’ writ-
ten notice of an intended change in agreements affecting
rates of pay, rules, or working conditions, and the time and
place for the beginning of conference between the represen-
tatives of the parties interested in such intended changes
6a
Railway Labor Act Excerpts
shall be agreed upon within ten days after the receipt of
said notice, and said time shall be within the thirty days
provided in the notice. In every case where such notice
of intended change has been given, or conferences are
being held with reference thereto, or the services of the
Mediation Board have been requested by either party, or
said Board has proffered its services, rates of pay, rules,
or working conditions shall not be altered by the carrier
until the controversy has been finally acted upon as re.
quired by Section 5 of this Act, by the Mediation Board,
unless a period of ten days has elapsed after termination
of conferences without request for or proffer of the serv.
ices of the Mediation Board.
Section 10 (45 U.S.C. § 160). If a dispute between a
carrier and its employees be not adjusted under the fore-
going provisions of this Act and should, in the judgment
of the Mediation Board, threaten substantially to interrupt
interstate commerce to a degree such as to deprive any
section of the country of essential transportation service,
the Mediation Board shall notify the President, who may
thereupon, in his discretion, create a board to investigate
and report respecting such dispute. Such board shall be
composed of such number of persons as to the President
may seem desirable: Provided, however, That no member
appointed shall be pecuniarily or otherwise interested in
any organization of employees or any carrier. The com-
pensation of the members of any such board shall be fixed
by the President. Such board shall be created separately
in each instance and it shall investigate promptly the facts
as to the dispute and make a report thereon to tne Presi-
dent within thirty days from the date of its creation.
There is hereby authorized to be appropriated such sums
as may be necessary for the expenses of such board, in-
cluding the compensation and the necessary traveling ex-
penses and expenses actually incurred for subsistence, of
the members of the board. All expenditures of the board
—_
Ta
Railway Labor Act Excerpts
shall be allowed and paid on the presentation of itemized
vouchers therefor approved by the chairman.
After the creation of such board and for thirty days after
such board has made its report to the President, no change,
except by agreement, shall be made by the parties to the
controversy in the conditions out of which the dispute
arose.
—
8a
Opinion of Court of Appeals
APPENDIX B
Opinion of Court of Appeals
Unrrep States Court oF APPEALS FOR THE SixtH Cimour
Decided October 7, 1968.
Before: McCrez and Coss, Circuit Judges, and Cren,
Senior Circuit Judge.
Comss, Circuit Judge. The Detroit and Toledo Shore
Line Railroad [Shore Line] brought suit to enjoin a threat-
ened strike by the Brotherhood of Locomotive Firemen and
Enginemen [BLF&E]. The BLF&E counterclaimed, seek-
ing to enjoin a change in work assignments proposed by
Shore Line. The District Court dismissed Shore Line’s
complaint and issued the injunction sought by BLF&E,
267 F.Supp. 572 (1967). This appeal followed.
Shore Line’s main line of railroad runs from Toledo,
Ohio to Detroit, Michigan. Until 1961, all work assignments
for Shore Line’s crews started and ended at Lang Yard in
Toledo. An increasing volume of business in Trenton,
Michigan caused Shore Line to consider the establishment
of a terminal there. A major difficulty in this regard stem-
med from the fact that all of its work assignments for
many years had originated at Lang Yard, thirty-three
miles away. Thus, to service a train starting and ending
its run in Trenton, it was necessary to transport the work
crews to and from Lang Yard each day.
In 1961, Shore Line notified three unions representing
its employees, including BLF&E, that certain designated
work assignments would henceforth originate in Trenton.
The unions served notice on Shore Line, pursuant to Sec-
tion 6 of the Railway Labor Act, proposing certain special
working conditions for employees who would operate out
of Trenton. Conferences on these notices brought no agree-
ment and the matter was referred to the National Medi-
ation Board. While the case was pending before the Board,
Shore Line established two new work assignments to origi-
9a
Opinion of Court of Appeals
nate in Dearoad, Michigan, eleven miles north of Trenton.
The crews operating out of Dearoad were driven to Tren-
ton by a taxicab service operated by Shore Line.
When the Dearoad work assignments were announced,
the BLF&E withdrew from the Mediation Board proceed-
ings and, before a Special Board of Adjustment, chal-
jenged Shore Line’s right to establish the new work as-
signments.’ It was asserted that these assignments were
contrary to the collective bargaining agreement between
the parties. On November 30, 1965, the Special Board
ruled that the Shore Line-BLF&E bargaining agreement
did not prohibit the establishment of outlying work assign-
ments.
Shortly after the action by the Special Board, Shore Line
revived its plan to originate work assignments out of Tren-
ton. Learning this, BLF&E served a Section 6 notice on
Shore Line, proposing an amendment to the existing col-
lective bargaining agreement to the effect that ‘‘all road
service runs and/or assignments will originate and ter-
minate at Lang Yard... .”’ The parties, being unable to
agree, submitted the matter to the National Mediation
Board. Notwithstanding this action, Shore Line posted
notices announcing two work assignments to originate at
Trenton. The BLF&E threatened to strike and this action
was initiated.
The District Court enjoined Shore Line from ‘‘estab-
lishing or operating a terminal point at Edison Station,
Trenton, Michigan, or any other terminal point not pre-
viously established. .. .’” The injunction was grounded on
the Section 6 requirement that, following issuance of a
notice under that section or the National Mediation Board’s
proffer of services, a carrier may not alter ‘‘rates of pay,
rules, or working conditions’’ until Section 6 procedures
have been exhausted.
Shore Line asserts that the District Court’s decision is
1The BLF&E decided to treat the controversy as a “minor dispute.”
Under Section 3 of the Railway Labor Act, such disputes are settled by
an Adjustment Board whose interpretation of the contract is binding on
the parties. See Elgin, Joliet & Eastern Ry. v. Burley, 325 U.S. 711 (1945).
10a
Opinion of Court of Appeals
erroneous for two reasons. First, it is contended that the
status quo provision in Section 6 of the Act applies only
to changes in ‘‘rates of pay, rules, or working conditions”
which are embodied in the bargaining agreement, and that
no terminal point is established in the bargaining agree.
ment. We find this argument to be lacking in merit for the
reasons stated in the opinion of the District Judge
Second, it is argued by Shore Line that the establish.
ment of a railway terminal is not bargainable because it
is a managerial prerogative. This argument would have
great force if the District Court’s judgment prevented the
company from constructing physical facilities known as a
‘‘terminal’’ or from using such facilities as a terminal.
But such is not the case. The controversy here is focused
on where work assignments will commence and end—the
place where employees will report on and off duty. We
find nothing in the correspondence between the parties, in
the testimony of the witnesses, or in the opinion of the Dis-
trict Judge which would indicate that the judgment of the
District Court should be given a broader meaning.
The question before the District Court was whether the
place where employees for many years have originated and
terminated their work days is a ‘‘ working condition”’’ which
can be changed unilaterally by the employer without ex-
hausting the bargaining procedures required by Section 6
of the Act. We note that it is stated by the District Judge
in his opinion: ‘‘The proposed rule actually seeks to estab-
lish that all crewmen will report to duty at Lang Yard and
not 35 miles north of Toledo.’’
It was held by the District Judge that this is a proper
subject for bargaining and, as we construe the judgment,
that is all that was held. We agree with the reasoning of
the District Judge and with his conclusion.
Judgment affirmed.
— ..
lla
Opinion of District Court
APPENDIX ©
Opinion of District Court on Motion to Vacate Judgment*
(Filed May 12, 1967)
Youns, J.:
This cause arises under various provisions of the Rail-
way Labor Act. 45 U.S.C. §§ 151 et. seq. Plaintiff sued
the Brotherhood of Railroad Trainmen (hereinafter re-
ferred to as the Trainmen), the Brotherhood of Locomotive
Firemen and Enginemen (hereinafter referred to as the
Firemen), and their respective officers for an order re-
straining them from striking. The Firemen counterclaimed
for an injunction to prevent the plaintiff from violating
the status quo provisions of the Act by unilaterally estab-
lishing a new terminal point, thereby changing the place
where the employees would be required to go on and off
duty. The action came on to be heard on October 7, 1966,
and testimony and argument were heard at that time. This
Court rendered an oral decision in which it refused to
grant the injunction against the Unions, while finding for
the Firemen on their counterclaim. On November 1, 1966,
the findings of fact and conclusions of law of the Court
were filed. Plaintiff has now moved for an order vacating
the judgment with respect to the Firemen, and for a new
trial pursuant to Rule 59 of the Federal Rules of Civil
Procedure.
Since rather complete findings of fact have already been
made, only a short summary of the facts will be repeated
here. For many years Lang Yard in Toledo, Ohio has
been the terminal point for train and engine crews going
on and off duty, and from which switching services for the
Monsanto Chemical plant at Trenton, Michigan was per-
formed. On February 21, 1961 the railroad notified both
unions of its intention to establish a new terminal point
at Edison Station in Trenton, Michigan. The unions there-
after joined in seeking an amendment of the collective bar-
* Reported at 267 F. Supp. 572.
12a
Opinion of District Court
gaining agreements to cover the changed working condi.
tions pursuant to 45 U.S.C. § 156 by giving what is known
as a section 6 notice. The services of the National Media.
tion Board were invoked but the parties failed to reach an
agreement and declined arbitration. It is agreed that at
this point the procedures with respect to the handling of
the section 6 notice had been exhausted, and both the unions
and the company were free to resort to self-help. There.
after, certain other steps were taken by the Company and
the Trainmen but this Court found that these related to the
same basic dispute. This being the case, it was the Courts
ruling that the dispute was a ‘‘major dispute’’ and that
the Court therefore had no jurisdiction to enter an injune-
tion against a strike by the Trainmen because of the Nor.
ris-LaGuardia Act, 29 U.S.C. § 101 et seq. That determina-
tion is not an issue here since the plaintiff has asked for an
order vacating the judgment only with respect to the
Firemen.
The facts particularly relevant to the present motion are
that on January 27, 1966, the Firemen served a new section
6 notice on the plantiff and that this time instead of seek-
ing amendments to the bargaining agreement to cover the
changed working conditions caused by the establishment of
the new terminal point, sought to amend the agreement to
establish Lang Yard as the sole terminal point for plain-
tiff’s operations. The services of the National Mediation
Board were again invoked and as of the date of the hearing,
the matter was awaiting assignment of a mediator.
On September 19, 1966, plaintiff posted a bulletin advis-
ing the employees that Edison Station would be the new
terminal point. This would mean that the employees would
go on and off duty in Trenton, Michigan, some 30 to 40
miles north of Toledo where they had previously been
based.
It was the holding of this Court that the unilateral action
by the Company in posting the bulletin changing the ter-
minal point after the services of the Mediation Board had
been requested, violated the status quo provisions of sec-
tions 5 and 6 of the Act, providing that working condi-
—
13a
Opinion of District Court
tions shall not be altered by the carrier until the contro-
yersy has been finally acted upon by the Board and for 30
days thereafter. The plaintiff’s petition was therefore
denied with respect to the Firemen, and plaintiff was en-
joined from operating a terminal point at Edison Station
until the exhaustion of the procedures of the Act. It is
this holding which is disputed by the present motion.
It is unnecessary in this case to discuss in detail the
major’? and ‘‘minor’’ dispute dichotomy in the Railway
thor Act. Suffice to say that if the dispute is termed
wajor, either party may initiate the procedures of the
Act by the service of a notice to change the contract pur-
suant to Section 6." If settlement cannot be reached in con-
ference, the matter is referred to mediation under the au-
spices of the National Mediation Board. 45 U.S.C. § 155
(1964). The procedure for handling major disputes is de-
signed to assist the parties in reaching agreement, and
there is no authority to decide the dispute for the parties
unless they agree to submit to arbitration.
After the parties have exhausted the procedures of the
Act, they are free to resort to self-help and the courts may
not enjoin a strike by the union nor a unilateral change
in rates of pay, rules and working conditions by the carrier.
Brotherhood of Locomotive Engineers v. Baltimore &
O.R.R., 372 U.S. 284 (1963) ; Order of R.R. Telegraphers
y. Chicago & N.W. Ry., 362 U.S. 330 (1960). However,
pending exhaustion of such machinery, the parties are re-
quired to maintain the status quo. Thus, while the parties
are in the process of exhausting the proceedings described
above, the railroad may not unilaterally change the rates
of pay, rules or working conditions and a court may enjoin
such action. 45 U.S.C. $§ 155, 156 (1964) ; United Indus-
trial Workers of Seafarers v. Board of Trustees, 368 F.2d
412 (5th Cir. 1966).
Plaintiff argues that the present controversy is neither a
major nor a minor dispute but rather that it involves a
matter of management prerogative.
145 U.S.C. § 156 (1965).
l4a
Opinion of District Court
For the procedures of the Railway Labor Act to be ap.
plicable there must first be a ‘‘labor dispute.’’ Thus, for
example, if management decided to install new machinery
which did not in any way affect the terms or conditions
of employment nor violate the collective bargaining agree.
ment, it could do so without prior consultation with the
union. If the union takes strike action concerning a non-
bargainable matter, a court may issue a strike injunction
because the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115,
preventing injunctions in ‘‘labor disputes’’ is not appli-
cable. See Chicago & N.W. Ry. v. Order of R.R. Teleg-
raphers, 264 F.2d 254, 260 (7th Cir. 1959), rev’d on other
grounds, 362 U.S. 330 (1960).
The Supreme Court case of Order of R.R. Telegraphers
v. Chicago & N.W. Ry., 362 U.S. 330 (1960) involved facts
which were substantially similar to the case at bar. In
that case the railroad filed petitions with the public utility
commissions in several of the states in which it operated
asking permission to eliminate certain of its railroad sta-
tions. Recognizing that the plan would result in a loss of
jobs, the union gave a Section 6 notice to amend the bar-
gaining agreement to state that no position could be abol-
ished or discontinued except by agreement between the
carrier and the organization. The Court held that the case
grew out of a ‘‘labor dispute’’ and that by reason of the
Norris-LaGuardia Act, the district court was without anu-
thority to enjoin the strike.
The Norris-LaGuardia Act defines a labor dispute as
follows:
‘‘any controversy concerning terms or conditions of
employment, or concerning the association or repre-
sentation of persons in negotiating, fixing, maintaining,
changing, or seeking to arrange terms or conditions of
employment... .’”
The Court said that the controversy clearly involved an
effort to change the terms of an existing agreement, and
229 U.S.C. § 113(e).
—_—
—
15a
Opinion of District Court
that that term related to a condition of employment. Fur-
thermore, the trend has been to broaden, not narrow the
scope of subjects about which workers and railroads may
bargain collectively. The Court finally noted that it is
“too late now to argue that employees can have no collec-
tive voice to influence railroads to act in a way that will
preserve the interests of the employees. . . —
Plaintiff attempts to distinguish the Railroad T elegraph-
ers case by pointing out that the union there only objected
to the abolition of jobs, and did not seek a veto over the
earrier’s right to determine the location of stations, while
in the present case the Firemen seek to amend the agree-
ment to make Lang Yard in Toledo the sole terminal point.
The proposed rule actually seeks to establish that all crew-
men will report to duty and go off duty at Lang Yard and
not 35 miles north of Toledo. Certainly this is a proper
subject for bargaining. The controversy concerns the
terms of a proposed change in the collective bargaining
agreement, and those terms relate to a condition of em-
ployment.
Plaintiff argues that Brotherhood of R. R. Trainmen v.
New York Cent. R. R., 946 F.2d 114 (6th Cir.) cert. denied,
955 U.S. 877 (1957) is controlling in this circuit. This
Court believes, however, that that case was overruled by
the Railroad Telegraphers case, and that the present con-
troversy is a labor dispute not involving a matter solely
within the discretion of management.
The second contention of the railroad is that even assum-
ing we are dealing with a labor dispute, and that it is a
“major dispute,”’ its own action in establishing a terminal
at Trenton prior to the termination of mediation with re-
spect to the Firemen ’s 1966 notice did not violate the status
quo provisions of sections 5 and 6 of the Act. The position
of plaintiff is that its contract with the Firemen does not
prohibit the establishment of new terminals for road serv-
ice assignments, and that the status quo requirements of
section 6 prohibit only changes in rates of pay, rules, or
3 362 U.S. 330, 339 (1960).
l6a
Opinion of District Court
working conditions fixed by the parties’ collective bargain.
ing agreement. In other words, section 6 applies only whep
the proposed change in the agreement directly conflicts with
a provision of the present contract. In support of this
contention plaintiff cites a report of the National Mediation
Board which reads in part as follows:
‘‘Section 6 states that where notice of intended
change in an agreement has been given, rates of pay,
rules, and working conditions as expressed in the
agreement shall not be altered by the carrier until the
controversy has been finally acted upon in accordance
with specified procedures. Positively stated, section 6
is intended to maintain the contract as it existed be-
tween the parties until the provisions of the act have
been complied with.’’* (Emphasis added.)
But the phrase ‘‘as expressed in the agreement’’ does
not appear in section 6 of the Act, and this language ap.-
pears to have been added by the Board. This Court does
not think that such a limitation on the application of the
status quo requirements is sound. The general scheme of
the statute indicates that the purpose of the status quo
provision is to aid the National Mediation Board in its
function of helping the parties to reach an agreement. If
the carrier can unilaterally change the working conditions
of its employees while such conditions are the subject of
mediation efforts by the Board, the work of the Board
would be greatly hampered. Thus, it would appear that
whenever the services of the Board have been invoked, its
jurisdiction should be protected by the application of the
provisions of section 6 even if the particular condition
is not fixed by the existing agreement. There is no reason
why the status quo provisions should not apply whenever
the Board is mediating a dispute.
Furthermore, the limitation which the plaintiff places on
the application of the status quo provision is unsupported
by case law. In Williams v. Jacksonville Terminal, 315
4 Thirty-First Annual Report of the National Mediation Board 25 (1965).
_
_
17a
Opinion of District Court
U.S. 386 (1942) the Court did state that the prohibitions
of section 6 against changes in wages and working condi-
tions pending bargaining are aimed at ‘‘preventing changes
in conditions previously fixed by collective bargaining
agreements.” ° However, the facts in that case were not
even remotely analogous to the present situation, and the
legal issues were different. There had been no previous
collective bargaining agreement and there was no history
of bargaining between the terminal and certain of its em-
ployees called ‘‘red caps.’? However, on October 11, 1938
the red caps notified the terminal that they had selected a
union to represent them. The union representative then
asked for a conference for the purpose of negotiating a
collective bargaining agreement. But no section 6 notice
was ever given because there was no existing agreement
toamend. The carrier thereafter delivered to each red cap
a letter stating that his weekly wage in the future would
be the difference between the minimum wage set by the
newly enacted Fair Labor Standards Act and the amount
of tips received by him each week. An agreement was sub-
sequently reached with regard to working conditions and
hours but it omitted any reference to wages. The union
representative then sued the terminal for wages due to
the red caps under the Fair Labor Standards Act. The
union contended among other things that the railroad could
not apply the tips to the minimum wage figure because to
do so violated the status quo provisions of the Railway
Labor Act. The Court held that section 6 did not apply.
This result is quite logical because section 6 applies only
to intended changes in collective bargaining agreements
and there was no agreement in existence to change. The
decision of the Court, however, is not relevant to the
present controversy, because the Firemen and the plain-
tiff have an agreement in effect and a section 6 notice has
been given proposing that it be changed. The Board’s
services have therefore properly been invoked, and its
jurisdiction to mediate should be protected.
5315 U.S. 386, 402-403 (1942).
a
18a
Opinion of District Court
The case of Norfolk & Portsmouth Belt Lime R.R. y,
Brotherhood of R.R. Trainmen, 248 F.2d 34 (4th Cir.)
cert. denied, 355 U.S. 914 (1957), is also not in point. The
Court used language which supports plaintiff’s contention
but it is dictum, since the final determination was that the
controversy was a minor dispute.
Thus, the language which the Board read into the Act
in its report cited above is supported neither by sound
reasoning nor by case law. Therefore, this Court will not
limit the application of the status quo provisions which are
clearly set forth in section 6.
The plaintiff’s motion for an order vacating the judgment
of this Court entered on November 16, 1966 and for a new
trial will therefore be denied.
Don J. Youna,
United Siates District Judge.
Toledo, Ohio.
_—_—_—
19a
Oral Decision of District Court
APPENDIX D
Oral Decision of District Court
(October 7, 1966)
Young, J.
[2] Gentlemen, I have been considering this matter, the
arguments of counsel as well as the various authorities that
have been cited, and those citations I have explored for
myself. The Court has come to some conclusions which I
think should be dispositive of the matter.
Actually, we have two separate cases here before us.
This was pointed out in argument and is emphasized by
the fact that there are two separate Answers filed. One of
the Answers has with it a Counterclaim or Cross-Petition.
So that I am going to consider my disposition of the
case as involving two separate matters which will require
separate disposition.
The first of the two matters is the Complaint with respect
to the actions of the Brotherhood of Railroad Trainmen ;
at least that is the one that I am going to consider first.
[3] The problem there, of course, is raised by the prayer
of the Complaint for an Injunction restraining the Brother-
hood from an alleged threat to strike over a dispute that
was precipitated by a bulletin posted by the plaintiff on
September 19th of this year providing that certain work
assignments were going to have their terminal at the Edi-
son Yard at Trenton, Michigan.
While there are apparently some differences between
these two locations, it is too trivial to give any considera-
tion to.
The problem here is simply another facet, it seems to
the Court, of a long-standing dispute that has occurred
between the parties, starting way back in 1961, or perhaps
even before that.
It is argued that the 1961 matter is all over and done
with and that the current dispute is an entirely new one.
20a
Oral Decision of District Court
It is difficult for me to accept that interpretation of the
facts that are on the record in this case.
The problem here, as the Court sees it, is that the plain.
tiff’s claimed right to establish terminals wherever it wants
to establish them leaves gaps in the agreements between
the plaintiff and the defendant Brotherhood, because the
agreement actually only sets up rates of pay and working
[4] conditions for operations out of one main terminal.
So that we have, in effect, a situation where there is no
agreement between the parties which could determine the
difficulties between them.
When we come to consider that dispute in the light of the
applicable law, we run into the difficulty that on such mat-
ters—that is, matters where there is no agreement between
the parties and an agreement has to be negotiated—the
Norris-LaGuardia Act and th Railway Labor Act do not
seem to contemplate that the Court only has jurisdiction
to interfere with other procedures used to resolve those
difficulties.
Sometimes the language is used ‘‘major disputes and
minor disputes,’’ and while the Court may intervene in
minor disputes to see that the provisions of the law are
carried out, the Court may not intervene when there is a
major dispute between the parties. That appears clearly
to me to be the situation here, that there is, and for a long
tim there has been a major dispute between these parties.
The dispute has flared up and been in abeyance from time
to time, depending on the actions that were taken by the
parties on one side or the other to exacerbate the under-
lying difficulties, but it never has been resolved in the
[5] way disputes are supposed to be resolved by the par-
ties’ rights under the law to self-help, and this Court has
come to the conclusion that that being the case here, it has
no jurisdiction to grant the relief prayed for in the plain-
tiff’s Complaint.
Insofar as the Complaint involves a dispute with the
Trainmen, it will be dismissed. .
The situation with respect to the Complaint against the
Brotherhood of Firemen and Enginemen presents a con-
siderably different situation, a different problem.
_—__
21a
Oral Decision of District Court
I was unable to find from the evidence before me that the
Brotherhood of Firemen and Enginemen had made any
threat to strike. What they had done, apparently some
time ago, in the spring of this year, was to make a so-
called Section VI complaint to the National Mediation
Board. That was duly docketed and a number was as-
signed to it; as I recall, it was numbered A7839. That
matter is now pending the appointment of a mediator.
Under those circumstances, I don’t see how a court could
have any jurisdiction to grant relief to the plaintiff on their
Complaint for an Injunction.
In the first place, if the processes of the law have not
[6] yet been exhausted, there would be considerable doubt
of the Court’s jurisdiction. In the second place, if there
really isn’t any threat, then there is nothing for the Court
to enjoin.
So that, again, as to the plaintiff’s Complaint against the
Brotherhood of Firemen and Enginemen, the Court is con-
strained to the view that the Complaint must be dismissed.
- However, that does not dispose of all the issues that are
raised in that matter, because the Brotherhood, in addition
to its Answer which seeks the dismissal of the Complaint,
has filed a Counterclaim seeking positive relief against the
railroad on their behalf.
Their contention is that, having commenced proceedings
under the Railway Labor Act, the provisions of the Act
require that the matter should remain in status quo until
all those procedures have been terminated, and for thirty
days thereafter neither party has the right: (a) the rail-
road to change wages or working conditions, or (b) the
union to strike.
The railroad’s contention, the plaintiff’s contention, in
response to that is that this particular matter, that of
establishing a terminal at Trenton or the Edison Yard, is
[7] not a condition of employment in which the law re-
quires that the status quo be maintained.
There doesn’t appear to be any case law that precisely
covers that situation, certainly not as applying to the facts
in this case.
22a
Oral Decision of District Court
The plaintiff relies upon a statement in the report of the
Labor Board about the matter, but that statement, when
taken in context, is based on reading language into the
statute which does not appear in the words of the statute
itself.
So that this Court apparently has got to take a pioneer.
ing position and establish a rule; whether it be a precedent
or whether it will stand, there is no way of telling.
But it seems to me that when we look at this thing as a
whole and examine the history of it, as shown by the evi-
dence in the record, the question of establishing this ter-
minal at Trenton—while it is arguable, and might even be
said to be conceded that the plaintiff had a right to estab-
lish terminals wherever it wants to—yet again, when we
go back to the contract there isn’t anything providing for
the working conditions and rates of pay and things of that
nature at those other terminals.
[8] So the Court has come to the conclusion that if it
were to hold that the plaintiff had a right to go ahead and
start doing the things that it proposed in its Bulletin of
September 19, 1966 to do, that both as a legal and as a
practical matter it would be changing the conditions of
employment, because some men would have to be working
out of that Yard. They would have to get there the best
way they could, or they would have to move from where
they now live if they didn’t want to commute 35 miles or
so back and forth. Certainly where a man lives when he
goes to work is one of the conditions of his employment,
and, it seems to me, a rather major condition of employ-
ment.
So that I feel constrained to grant to the Brotherhood
of Firemen and Enginemen the relief that they seek in
their Counterclaim, that is that until the processes which
are established by statute for working out the dispute be-
tween them and the plaintiff have been completed that there
should be no change in the practices and the conditions
that for many, many, many years have governed the car-
rier’s operation and the work of the members of the de-
fendant unions under it.
I feel that the Court has no alternative except to grant
_—_
23a
Oral Decision of District Court
[9] to the defendants the relief that they are seeking by
their Counterclaim.
It appearing that the defendants are the prevailing
parties under the disposition I have just expressed, I will
require that the defendants draft Findings of Fact and
Conclusions of Law which are expressive of the Findings
and Conclusions so delivered orally by the Court. They
should submit those within ten days to the plaintiff. The
plaintiff may then have an additional ten days to offer, if
they desire, their version of what they believe are proper
Findings of Fact and Conclusions of Law.
Upon receiving the Conclusions of both parties, or if
the plaintiff accepts those submitted by the defendants,
upon receiving the Conclusions expressed by the defend-
ants, the Court will then enter an Order upon the Findings
and Conclusions.
24a
Judgment of Court of Appeals
APPENDIX E
Judgment of Court of Appeals
(Filed October 7, 1968)
Unrtep States Court or APPEALS FoR THE SixtH Circuit
No. 18,059
Tue Derrorr anv ToLepo SHore Line Rarroap Company,
Plaintiff-A ppellant,
Us.
BroTHERHOoD oF Locomotive FirEMEN AND ENGINEMEN,
ET AL., Defendants-Appellees.
Berore: McCree and Comes, Circuit Judges and Cecn,
Senior Circuit Judge.
JUDGMENT
AppeaL from the United States District Court for the
Northern District of Ohio.
Txuis Cause came on to be heard on the record from the
United States District Court for the Northern District of
Ohio and was argued by counsel.
On ConsmveRaTION WHEREOF, It is now here ordered and
adjudged by this Court that the judgment of the said Dis-
trict Court in this cause be and the same is hereby affirmed.
It is further ordered that Defendants-Appellees recover
from Plaintiff-Appellant the costs on appeal, as itemized
below, and that execution therefor issue out of said District
Court.
Entered by order of the Court.
CarL W. Reuss,
Clerk.
25a
Findings of Fact and Conclusions of Law
APPENDIX F
Findings of Fact Conclusions of Law, and
Judgmex: of District Court
(Filed November 1, 1966)
Pursuant to Rule 52(a), the court hereby enters the fol-
lowing findings of fact and conclusions of law which con-
stitute the grounds for its previously announced decision
herein.
Findings of Fact
1. Plaintiff is a Michigan corporation with its principal
office in Detroit, Michigan, and is a common carrier by rail-
road engaging in interstate commerce. Plaintiff operates
‘ts trains over its line of railroad between Lang Yard in
Toledo, Ohio, and Detroit, Michigan, and over the lines of
other railroads to other points in the State of Michigan.
9. Defendant Brotherhood of Locomotive Firemen and
Enginemen (sometimes hereinafter referred to as the ‘‘ Fire-
men’’) is a voluntary unincorporated association and labor
organization, and is the only authorized representative, for
purposes of collective bargaining under the Railway Labor
Act, of the crafts or classes of railway engineers, firemen
and hostlers employed by plaintiff; defendant H. E. Gilbert
‘s President of the Firemen; and defendant E. F. Gensler
is General Chairman of the Firemen on the property of
plaintiff railroad.
3 Defendant Brotherhood of Railroad Trainmen (some-
times hereinafter referred to as the ‘‘Trainmen’’) is a
voluntary unincorporated association and labor organiza-
tion, and is the only authorized representative, for purposes
of collective bargaining under the Railway Labor Act, of
the crafts or classes of trainmen and yardmen employed by
plaintiff ; defendant Charles Luna is President of the Train-
men; and defendant William Upham is General Chairman
of the Trainmen on the property of plaintiff railroad.
4. At all times material hereto each of said Brotherhood
26a
Findings of Fact and Conclusions of Law
defendants has been a party to separate collective bargain.
ing agreements with plaintiff governing rates of pay, rules
and working conditions of the separate crafts or classes of
employees represented as aforesaid.
5. For many years prior to 1961, Lang Yard in Toledo,
Ohio, was the terminal point, for train and engine crews
going on and off duty, from which plaintiff operated to
perform switching service for the Monsanto Chemical Com.
pany plant at Trenton, Michigan, where no terminal point
had previously been established or operated by plaintiff,
Under date of February 21, 1961, plaintiff advised defendant
Brotherhoods of its intention to establish such a terminal
point at Edison Station, in Trenton, Michigan, and inquired
as to the facilities that would be required for employees
going on and off duty at that point.
6. Under date of April 28, 1961, defendant Brotherhoods
joined in serving on plaintiff, pursuant to Section 6 of the
Railway Labor Act, a notice seeking amendment of existing
collective bargaining agreements so as to cover changed
working conditions of employees affected by the proposed
establishment of a new terminal point. This notice was
implemented by written proposals for specific benefits for
such employees served on plaintiff under date of June 8,
1961.
7. Negotiations on said notice and proposals, and media-
tion thereon under the auspices of the National Mediation
Board, failed to result in any agreement of the parties, and
under date of January 1, 1963, said Board advised the
parties, including plaintiff, of the failure of its mediatory
efforts, and in accordance with Section 5, First, of the Rail-
way Labor Act, requested the parties to submit the contro-
versy to arbitration. All parties having declined arbitra-
tion, said Board, under date of March 4, 1963, notified the
parties that, except as provided in Section 5, Third, and
in Section 10 of the Act, the Board’s services had that day
been terminated. On April 3, 1963, said Board notified the
parties of the closing of its file in the matter, which it had
docketed as National Mediation Board Case No. A-6755.
At the hearing herein, it was conceded by plaintiff that at
that stage all of the provisions of the Railway Labor Act
27a
Findings of Fact and Conclusions of Law
overning the handling and processing of the major dispute
initiated by defendants’ Section 6 notice of April 28, 1961,
had been exhausted, and that employees of plaintiff repre-
sented by defendant Brotherhoods were at that time legally
free to strike.
8, Plaintiff’s rejection of arbitration of said dispute had
been coupled with a representation by it that its plans to
establish a terminal point at Edison Station, Trenton,
Michigan, had been abandoned, and that the dispute was
therefore moot; and for some time no further action in
connection with such dispute was taken by plaintiff or
defendants. On December 16, 1965, a new written proposal
for an agreement establishing conditions to be observed in
establishment of a terminal point at Trenton (Edison Sta-
tion) was given plaintiff by the Trainmen, which, though
embodying conditions differing in part, at least, from those
contained in the June 8, 1961, proposal, related to the same
basic major dispute. These proposals were rejected by
plaintiff.
9, In the meantime, defendant Firemen had withdrawn
their Section 6 notice of April 28, 1961, and invocation of
the National Mediation Board’s services in connection
therewith, and on January 27, 1966, served a new Section 6
notice on plaintiff calling for amendment of the Firemen’s
collective bargaining agreement so as to establish Lang
Yard, Toledo, Ohio, as the sole terminal point for plaintiff’s
operations. Negotiations on that proposal failed to result
in agreement, and under date of June 17, 1966, the Firemen
formally invoked the services of the National Mediation
Board in connection therewith. Under date of June 28, 1966,
plaintiff and the Firemen were advised by said Board that
the dispute had been docketed as National Mediation Board
(Case No. A-7839, and as of the date of the hearing herein
said matter was awaiting assignment of a mediator by the
Board.
10. Under date of September 19, 1966, plaintiff posted a
bulletin directed to its employees advising of the establish-
ment of a new train assignment, to operate out of Edison
Station, Trenton, Michigan, as its terminal point, to be
effective September 26, 1966. On September 23, 1966, plain-
=
28a
Findings of Fact and Conclusions of Law
tiff submitted to the National Railroad Adjustment Board g
purported dispute with the Trainmen as to plaintiff’s right,
under its agreement with the Trainmen, to unilaterally
establish new terminal points. On the same day this suit
was filed, seeking an injunction against an alleged threat.
ened strike by both defendant Brotherhoods.
11. At the hearing herein plaintiff coneeded that the case
involves separate causes of action, based on completely
different relevant facts, against the Trainmen defendants
and the Firemen defendants. Each group of defendants
filed separate answers, and that of the Firemen incorporated
a counterclaim against plaintiff seeking to enjoin it from
unilaterally establishing the proposed terminal point at
Trenton pending exhaustion of the procedures of the Rail-
way Labor Act in connection with the aforementioned dis-
pute currently pending before the National Mediation Board
as its Case No. A-7839.
Conclusions of Law
1. Plaintiff invokes the jurisdiction of this Court under
the Judicial Code (28 U.S.C., Secs. 1331 and 1337), the
Interstate Commerce Act (49 U.S.C., Sees. 1 et seq.), and
the Railway Labor Act (45 U.S.C., Secs. 151 et seq.).
2. Plaintiff is a common carrier by railroad in interstate
commerce, and is subject to the provisions of the Railway
Labor Act.
3. As to both the Firemen and the Trainmen defendants,
their respective disputes with plaintiff, though separate
and distinct, are primarily concerned with the amendment
of existing collective bargaining agreements, and as such
are ‘‘major disputes’’ subject to handling in accordance
with the provisions of Section 6 and Section 5 of the Rail-
way Labor Act. (Elgin, Joliet and Eastern R. Co. v. Burley,
325 U.S. 711.)
4. Under said Act, after exhaustion of the machinery
provided for the handling of such disputes, without agree-
ment being reached, both parties become legally free to
resort to self help, including the right of employees to strike
and the right of the carrier to place in effect unilateral
changes in rates of pay, rules and working conditions.
29a
Findings of Fact and Conclusions of Law
(Railroad Telegraphers v. Chicago and North Western
Railroad Co., 362 U.S. 330; Brotherhood of Locomotive
Engineers V. B. & O. R.R. Co., 372 U.S. 284.) Pending
exhaustion of such machinery, the ‘‘status quo’’ is to be
maintained by both parties. (Railway Labor Act, Sec. 6
and Sec. 5; Butte, Anaconda & Pac. Ry. Co. v. Brotherhood
of L.F. & E., 168 F. Supp. 911, aff’d. 268 F. (2d) 54; Balti-
more & Ohio R. Co. v. United Railroad Wkrs., etc., 271 F.
(2d) 87, 90.)
5, With respect to the Trainmen defendants, the current
dispute is over working conditions to be agreed upon in
connection with plaintiff’s establishment of a new terminal
point at Trenton, Michigan, and is the same basic major
dispute that was handled through all of the procedures of
the Railway Labor Act to the maturing of said defendants’
admitted right to strike in 1963. There being no prohibition
in said Act against the right of the Trainmen to strike, and
the jurisdiction of the court to grant injunctive relief in
such circumstances being withdrawn by the provisions of
the Norris-LaGuardia Act (29 U.S.C., Sec. 101 et seq.), the
Trainmen’s right to strike to obtain agreement of plaintiff
upon such conditions may not be enjoined. (See General
Committee, B.L.E., v. Missouri-K.T. R. Co., 320 U.S. 323,
339-333; Missouri-Illinois R. Co. v. Order of Railway Con-
ductors, 322 F. (2d) 793; Pan American World Air. v. Flight
Eng. Intern. Assoc., 306 F. (2d) 840; and cases cited above.)
6. Plaintiff’s submission to the National Railroad Adjust-
ment Board, coincidentally with the filing of this action, of
a purported dispute with the Trainmen over its right to
unilaterally establish a new terminal at Trenton, Michigan,
by its terms does not deal with the establishment, by con-
tract, of new working conditions at Trenton; and there is no
evidence on the record herein to support the existence of
any such contract interpretation dispute with the trainmen
as that described in plaintiff’s submission to said Adjust-
ment Board. The jurisdiction of the National Railroad
Adjustment Board does not extend to major disputes, such
as that here involved, relating to the amendment of pro-
visions of existing agreements. (Elgin, Joliet and Eastern
30a
Findings of Fact and Conclusions of Law
R. Co. v. Burley, supra; General Committee, B.L.E. v. Mis.
souri-K.-T. R. Co., supra.)
7. With respect to plaintiff’s cause of action against the
Firemen defendants, the court finds that plaintiff, having
failed to comply with the status quo requirements of See.
tions 6 and 5 of the Railway Labor Act, with reference to
handling of major disputes, is barred by the provisions
of the Norris-LaGuardia Act, and particularly Section 8
thereof (29 U.S.C. Sec. 108) from obtaining any injunctive
relief.
8. With respect to the counterclaim of tue Firemen de.
fendants against plaintiff, the court finds that in instituting
Trenton, Michigan, as a new terminal point on September
26, 1966, pursuant to its bulletin of September 19, 1966,
plaintiff effected a change in rates of pay, rules and working
conditions, and established practices in effect prior to the
time the dispute arose, which were the subject of the pending
National Mediation Board Case No. A-7839, in violation of
the status quo provisions of Section 6 and Section 5 First
(b) of the Railway Labor Act, and should be enjoined to
desist and refrain from such violation pending exhaustion
of the major disputes handling procedures of said Act. It
is well established that the court has jurisdiction to grant
injunctive relief ‘‘to compel compliance with positive man-
dates of the Railway Labor Act’’. (Graham v. Brotherhood
of Locomotwe Firemen and Enginemen, 338 U.S. 232, 237.)
9. In view of the foregoing findings and conclusions, an
order will be entered dismissing plaintiff’s action for in-
junction against defendants, and, on the Firemen defend-
ants’ counterclaim, enjoining and restraining plaintiff from
operating a terminal point at Edison Station, Trenton,
Michigan, or any other terminal point not previously estab-
lished, unless and until its pending major dispute with the
Firemen, involved in National Mediation Board Case No.
A-7839, has been fully handled to a conclusion, and the right
of the parties thereto to resort to self-help has been matured,
by exhaustion of the procedures of Sections 6 and 5 of the
Railway Labor Act, unless said dispute be earlier resolved
by agreement between plaintiff and the Firemen.
Don J. Youna,
United States District Judge.
w—
3la
Judgment of District Court
Judgment and Decree
(Filed November 15, 1966)
This cause came on to be heard on October 6, 1966, by
eement of the parties, on the merits of plaintiff’s com-
plaint for injunction, the answer of defendants, and the
counterclaim of defendants Brotherhood of Locomotive
Firemen and Enginemen, H. E. Gilbert and E. F. Gensler
for an injunction against plaintiff, and having been tried
before the Court, argued by counsel, and considered by
the Court, and the court having announced its opinion and
having entered its findings of fact and conclusions of law
in accordance therewith, now, therefore, it is ordered, ad-
judged and decreed that plaintiff shall not have any relief
in this action, and that the same shall be and hereby is
dismissed on the merits as to all defendants.
It is further ordered, adjudged and decreed that the
counterclaim of said defendants Brotherhood of Locomotive
Firemen and Enginemen, H. E. Gilbert and E. F. Gensler
should be and hereby is sustained, and that plaintiff, its
employees, agents or representatives, and anyone acting by,
through or for it, or on its behalf, be and they hereby are
enjoined and restrained from establishing or operating a
terminal point at Edison Station, Trenton, Michigan, or any
other terminal point not previously established, unless and
until its pending major dispute with said Brotherhood of
Locomotive Firemen and Enginemen, involved in National
Mediation Board Case No. A-7839, has been fully handled
to aconclusion, and the right of the parties thereto to resort
to self-help has been matured, by exhaustion of the pro-
cedures of Sections 6 and 5 of the Railway Labor Act, unless
said dispute be earlier resolved by agreement between plain-
tiff and said Brotherhood.
Dow J. Youns,
United States District Judge.
32a
Award of SBA No. 375
APPENDIX G
Award of Special Board of Adjustment No. 375
(November 30, 1965)
Parties To Dispute:
The Brotherhood of Locomotive Firemen and Enginemep,
The Detroit and Toledo Shore Line Railroad Company,
Statement of Claim:
‘‘Formal protest of Bulletin No. 1192, dated Sep.
tember 24, 1963, wherein the Carrier advertises a Work
Train to operate out of Dearoad, contrary to agree-
ment and all practices of the past.
‘*Tn connection therewith, also accept this as a Com-
mittee claim on behalf of all enginemen for any loss
sustained thereunder, should the aforementioned bul-
letin be placed in effect.’’
Findings:
What took place here was not a change in the recognized
terminal, but simply amounted to an outlying assignment.
There is nothing in the rules of agreement which precludes
this carrier from establishing an outside assignment.
The employes laid particular stress on their Exhibit 8,
but close examination of same does not indicate to the
majority that the Carrier limited itself with respect to
establishing outside assignments. Said Exhibit 8 reflects
that a limited agreement between the parties to set-up a
five-day assignment at a date prior to the five-day work
week was effectuated.
a—_, oe a
38a
Award of SBA No. 375
Award:
The claim is denied.
Davi R. Dovatas, Neutral Member
QC. J. McPuai, D. C. Drenrine,
Carrier Member Employe Member
(I dissent)
Detroit, Michigan—November 30, 1965
a
34a
National Mediation Board Instructions
APPENDIX H
National Mediation Board
Instructions to Mediators
May 12, 1960,
To: Att MEpDIATORS
From: E. C. Thompson, Executive Secretary
Section 6 of the Railway Labor Act states:
‘In every case where such notice of intended change
has been given, or conferences are being held with
reference thereto, or the services of the Mediation
Board have been requested by either party, or said
Board has proffered its services, rates of pay, rules,
or working conditions shall not be altered by the car-
rier until the controversy has been finally acted upon
as required by section 5 of this Act, by the Mediation
Board, unless a period of ten days has elapsed after
termination of conferences without request for or prof-
fer of the services of the Mediation Board.’’
The Board’s policy in regard to the ‘‘status quo’’ pro-
vision quoted above is outlined in the following letters:
‘August 17, 1956
“File No. C-2511
‘Mr. T. C. Carroll, President
Brotherhood of Maintenance of Way Employes
12050 Woodward Avenue
Detroit 3, Michigan
Dear Mr. Carroll:
‘‘Reference is made to your letter of August 10, 1956,
in connection with our File C-2511 which covers your appli-
cation for mediation dated July 27, 1956 in connection with
a dispute between your organization and the Atchison,
35a
National Mediation Board Instructions
Topeka & Santa Fe Railway Company, Panhandle & Santa
Fe Railway Co. and Gulf, Colorado & Santa Fe Railway
('o. which you described on your application as follows:
‘« Failure of management to maintain status quo with
respect to territorial limits and assignments currently
in effect, and to dispose of our Formal Notice dated
April 23, 1956, without undue delay.’
‘The Board considered your letter of August 10, 1956
in Executive Session on August 16, 1956. The Carrier has
taken the position that the proposed rearrangement of sec-
tions and the consequent changes in forces are permissible
under the present agreement, and if a dispute exists as to
the application of the present rules it should be taken before
the National Railroad Adjustment Board.
“The National Mediation Board does not understand
Section 6 of the Railway Labor Act to mean that proposed
revisions of agreement rules and the invocation of this
Board’s services on such proposed changes has the effect
of staying the application of existing rules unless and until
such existing rules are amended or revised.
“In view of the language of Section 2, Seventh of the
Railway Labor Act stating ‘No carrier, its officers, or agents
shall change the rates of pay, rules, or working conditions
of its employees, as a class as embodied in agreements
except in the manner prescribed in such agreements or in
section 6 of this act.’, the Board fails to find any basis for
complying with your request.
“The Board does feel, however, that the carriers should
not unduly delay completion of negotiations on the changes
requested in your General Chairman’s letter of April 23,
1956, and urges the catriers to arrange to meet your repre-
sentatives and complete negotiations at the earliest prac-
ticable date.
a
36a
National Mediation Board Instructions
‘*Copy of your letter of August 10, 1956 is being sent
herewith to Messrs. Tucker, Buchanan and Olson of the
carriers with copy of this letter.
‘*By direction of the Nationa Mepration Boarp.
‘*s/ E. C. THompson
Executive Secretary”
‘June 19, 1957
** A-5498
‘*Mr. C. R. Tucker, Vice President Operations
Atchison, Topeka and Santa Fe Railway
80 East Jackson Blvd.
Chicago 4, Illinois
‘Mr. Geo. M. Harrison, Grand President
Brotherhood of Railway & Steamship Clerks
1055 Vine Street
Cincinnati 2, Ohio
Gentlemen:
‘*Reference is made to application for mediation filed by
the Brotherhood of Railway & Steamship Clerks on June 5,
1957 in a dispute between that organization and the Atchi-
son, Topeka and Santa Fe Railway Company described in
the application as follows:
‘Request of employes that the Carrier enter into an
agreement with respect to its transfer of certain work
and positions from Los Angeles, California, to Topeka,
Kansas, and that such agreement be as set forth in
letter dated May 6, 1957, attached hereto and desig-
nated ‘‘Exhibit A-1’’ as modified in letter dated May
17, 1957, attached hereto and designated ‘‘ Exhibit A-2”
both of which are made a part hereof.’
‘*As we understand it this application was intended to
cover the proposals made by the General Chairman of the
—
37a
National Mediation Board Instructions
organization to Mr. W. G. Hunt, General Auditor of the
Atchison, Topeka and Santa Fe Railway Company in his
letter to Mr. Hunt of May 6, 1957, this letter being super-
seded by letter from the General Chairman to Mr. Hunt of
May 17, 1957.
‘(The latter letter proposed the negotiation of an agree-
ment between the parties providing certain benefits and
protection for employees in the Accounting Department of
the Santa Fe at Los Angeles who are proposed to be moved
from Los Angeles to Topeka, Kansas. The carrier was
advised of this application in our letter of June 7, 1957
and the carrier’s reply of June 14, 1957 was received in
this office on June 17, 1957. A copy of Mr. Tucker’s letter
of June 14 to this office is being sent to Mr. Harrison for
his information. Mr. Harrison will note from Mr. Tucker’s
letter that the carrier’s position is that the transfer of the
employees from Los Angeles to Topeka will be made in
accordance with the rules now contained in the current
agreement between the parties.
“This application has been considered by the Board and
on the basis of the proposal made to General Auditor Hunt
in Mr. Byrne’s letters of May 6 and May 17, 1957 the Board
has directed that Mr. Harrison’s application be docketed
as Case No. A-5498.
“With reference to the question of maintenance of status
quo as mentioned in Mr. Harrison’s letter of June 5, 1957,
‘t is not the Board’s understanding of Section 6 that an
‘nvocation for its services has the effect of staying action
under existing rules or renders compliance with existing
rules a violation of the Railway Labor Act.
‘‘A mediator will be assigned to commence the handling
of this case in Chicago at an early date.
‘‘Very truly yours,
‘*s/ K. C. THomMpson
Executive Secretary”’
38a
Award of SBA No. 465
APPENDIX I
Special Board of Adjustment No. 465
Parties To Dispute:
Boston and Maine Corporation and Brotherhood of Rail-
road Trainmen
Claim T-6709
Award No. 293
STATEMENT oF CLAIM:
Claims of Yard Foreman J. G. Morris, Manchester Yard,
for one day’s pay, on October 9, 1958 and subsequent dates,
account of being displaced off the 9:30 p.m. Manchester
Switcher by a man from Nashua Yard who lost his regular
assignment because the 5:30 a.m. Nashua Switcher was
reduced from three to two men effective October 8, 1958.
Claims for all subsequent claimants and subsequent claim
dates.
FINDINGS:
Upon the whole record and all the evidence, after hear-
ing, the Board finds that the parties herein are Carrier
and Employee within the meaning of the Railway Labor
Act, as amended, and that this Board is duly constituted
by agreement and has jurisdiction of the parties and of
the subject matter.
The Board finds that there is no crew consist rule in
yard service on this property. The First Division in Award
No. 17886 states that in the absence of a crew consist rule,
it is a managerial function to determine the number of
men that will be required in a crew complement. The Or-
ganization’s contention that, due to the fact that a Section
6 notice has been filed by it and the Section 6 notice is
now being handled by the National Mediation Board, the
— ——__,,
39a
Award of SBA No. 465
serving of the notice operates as a bar to the Carrier’s
actions which are taken under rules currently in effect is
not well founded and has been dealt with by the National
Mediation Board when it stated that the serving of a
Section 6 notice does not operate as a bar under existing
rules. (See report of National Mediation Board for year
ending June 30, 1964, page 29).
AWARD
Claims denied.
Tuomas C. Beciey,
Chairman
W. J. AHEABNE,
Carrier Member
W. J. Wet,
Organization Member
Issued at Boston, Massachusetts, this 12th day of Sep-
tember, 1966
40a
Clerks v. Santa Fe R. Co.
APPENDIX J
Brotherhood of Railway and Steamship Clerks,
Handlers, Express and Station Employees, Plaintiff y,
Atchison, Topeka and Santa Fe Railway Company, De.
fendant. *
Unrrep States District Court, Nortuern Districr op
Intros, Eastern Division
Civil No. 64-C-669, May 8, 1964
LaBvy, D. J.: This matter coming on to be heard on the
verified complaint and on the amendment to the complaint
and the verified Answer thereto, and the court, having set
the matter for hearing, having heard the evidence and
considered the briefs submitted by counsel, and being fully
advised in the premises, makes the following Findings of
Fact and Conclusions of Law:
Findings of Fact
1. Plaintiff, Brotherhood of Railway and Steamship
Clerks, Freight Handlers, Express and Station Employees,
hereinafter called Clerks, an unincorporated association,
is a ‘‘representative’’ within the meaning of § 1, Sixth,
45 U.S. C. § 151, of the Railway Labor Act, 45 U.S. C.
§§ 151 et seq. and does business within this judicial district.
2. Defendant, the Atchison, Topeka and Santa Fe Rail-
way Company, hereinafter called Santa Fe, a Kansas cor-
poration with its principal place of business in Topeka,
Kansas, is an interstate carrier by rail and a ‘‘carrier”
within the meaning of § 1, First, of the Railway Labor
Act and does business within this judicial district.
3. Clerks represent for purposes of collective bargaining
under the Railway Labor Act all employees of Santa Fe
in the craft or class of clerks or clerical employees, and
* 50 CCH Lab. Cas. ¥ 19,299.
_—
4la
Clerks v. Santa Fe R. Co.
the current basic collective agreement between Santa Fe
and Clerks is contained in a small printed booklet dated
November 1, 1963.
4, Collective bargaining agreements in the railroad in-
dustry generally do not have fixed expiration dates. They
are referred to as ‘‘open-end’’ contracts, and continue in
effect until changed. The current agreement between the
Clerks and Santa Fe is such an agreement, and Rule 56
thereof expressly provides that it is to continue in effect
until changed as therein provided or as provided in the
Railway Labor Act.
5, Santa Fe owns in Chicago, Illinois, a freight house
designated ‘‘Corwith Freight House No. 2”? (Corwith)
which includes a main building constructed in 1956 and an
addition referred to as the ‘‘X dock’’ constructed in 1960.
6. Corwith, including the X dock, is used exclusively for
the handling of freight of Republic Carloading and Dis-
tributing Company, hereinafter called Republic, a Division
of Yale Express System.
7. Republic is a freight forwarder within the meaning
of Part IV of the Interstate Commerce Act, 49 U. S. C.
§§ 1001 et seq. It consolidates small shipments of its cus-
tomers into carload quantities and ships by carload over
the facilities of Santa Fe and other common carriers. It
‘s one of Santa Fe’s best customers.
8, Santa Fe holds itself out through appropriate tariffs
filed with the Interstate Commerce Commission to perform
loading and unloading services at the request of carload
shippers and at the separate rate for such services spelled
out in the tariffs. At Santa Fe’s Corwith Freight House
No. 2, the actual work of consolidating, loading and un-
loading of freight is performed by Santa Fe employees
and Republic is charged on a tariff basis for such handling.
This arrangement with Santa Fe has been in existence
since November 1956 when Republic consolidated its freight
business with the Santa Fe. The choice whether to utilize
carrier employees for such service is Republic’s.
9. Several months prior to the inception of the instant
suit, Republic requested that, because of expansion of its
42a
Clerks v. Santa Fe R. Co.
business, an addition be constructed at Corwith in the form
of an extension to the X dock. It further requested that
Santa Fe lease to it the X dock and new addition ang
advised Santa Fe that upon execution of such lease, jt
would take over handling of its own loading and unloadi
work at the X dock and extension. Republic notified Santg
Fe that if its proposal were not agreed to it would take
its operations out of Corwith.
10. Republic has a collective agreement with the Chicago
Truck Drivers, Chauffeurs, and Helpers Union, Indepen.
dent, which gives members of that union exclusive right to
perform Republic’s loading and unloading in Chicago when
such work is done by Republic employees.
11. After a period of negotiations, Santa Fe and Re-
public agreed upon the terms of the lease and Republic’s
taking over its own loading and unloading work at the X
dock and proposed extension.
12. On March 12, 1964 Santa Fe notified the Clerks of
that arrangement and at the request of the Clerks, rep.
resentatives of Santa Fe met with representatives of the
Clerks on April 7, 1964 to review the problems posed by
the arrangement agreed upon by Santa Fe and Republic.
They were unable to resolve their differences by agreement.
13. On April 13, 1964 Santa Fe posted notices at Corwith
abolishing approximately 100 positions effective April 27,
1964 and advising the incumbents of those positions to
exercise their seniority. The next day the effective date
was changed to April 26. After the filing of the instant
suit, the effective date was postponed to May 11, 1964.
14. Preceding the above events regarding the lease ar-
rangement, and specifically on May 31, 1963 Clerks had
served upon Santa Fe notices pursuant to Section 6 of the
Railway Labor Act, 45 USC §156, to revise all existing
agreements. The notices proposed, among other things, an
immediate general wage increase, automatic future annual
wage increases, cost-of-living adjustment, improved vaca-
tions, hospital and life insurance benefits and holiday pay.
In addition, the notices requested a rule that:
‘‘Section 1. The number of employees in each of the
occupational classifications as of May 31, 1963 covered
_
wa
43a
Clerks v. Santa Fe R. Co.
by the agreement between the carrier and the organi-
zation shall not be reduced for any reason excepting
through normal attrition, and such reduction shall not
exceed 2% per year.
Section 3. None of the work of the carrier now be-
ing performed, or susceptible of being performed, by
employees coming within the scope of the agreement
between the carrier and the organization, will be con-
tracted out or otherwise transferred to other establish-
ments or employers, and no existing arrangement under
which such work is now being performed by other
establishments or employers shall be continued, except-
ing upon agreement between the carrier and the duly
authorized representative of the organization.’’
The notices also requested a rule providing for economic
protection for employees adversely affected by such changes
as transfers to other employers.
15. By letter dated June 17, 1963 Santa Fe served upon
the Clerks a Section 6 notice containing carrier’s counter-
proposals for changes in existing agreements. Santa Fe’s
proposed contract changes also related to wages, vacations,
holidays, health and welfare and life insurance benefits,
technological change and employee protection. In particu-
lar Santa Fe requested a rule that :
‘‘{, All agreements, rules, regulations, interpreta-
tions or practices, however established, which inter-
fere with or prohibit a carrier from exercising the
following rights are hereby eliminated :
(a) The right to transfer work either permanently
or temporarily from one facility, location, territory,
department, seniority district or seniority roster to
another.
(b) The right to abandon partially or entirely any
operation or to consolidate any facility or service here-
tofore operated separately.
Ss
44a
Clerks v. Santa Fe R. Co.
(c) The right to contract out work.
(d) The right to lease or purchase structures, fagilj.
ties, equipment or component parts thereof, and to
arrange for the installation, operation, maintenance
or repair thereof by employees other than those of the
carrier.’’
16. Immediately after the serving of the respective Sec.
tion 6 notices, the parties agreed to bargain collectively on
a national basis. After numerous bargaining meetings
were held and no agreement being reached, the parties in-
voked the services of the National Mediation Board pur-
suant to the Railway Labor Act. The Board docketed the
case as No. A-7128. The parties are now bargaining col-
lectively regarding their notices under the auspices of the
National Mediation Board.
17. Nothing in the current basic collective agreement
dated November 3, 1963 between the Clerks and Santa Fe
or any other agreement or practice restricts the right of
Santa Fe to abolish the positions at Corwith as a result of
Republic taking over its own loading and unloading opera-
tions at X dock and extension. Rule 16 and 17 thereof,
which have in substance been a part of the agreement in
effect between the parties for more than 20 years provide
for not less than 5 days written notice to affected employees
when regular forces are reduced or bulletined positions
are abolished and for status and treatment of employees
laid off on account of reduction in force. It has been the
practice in the past for Santa Fe to adjust the size of
forces according to the volume of work done.
18. Clerks concede that no claim is made in the instant
proceeding that any express provision of the existing col-
lective bargaining agreement between Clerks and Santa Fe
precludes Santa Fe from consummating the lease and trans-
fer of work.
Conclusions of Law
1. The court has jurisdiction of the parties and the sub-
ject matter.
2. Since it is conceded that nothing in the present agree-
—"~EO
—
45a
Clerks v. Santa Fe R. Co.
ments in any way limits Santa Fe’s right to enter into the
jease demanded by Republic or to abolish the positions at
Corwith’s X dock and extension, no part of present con-
troversy lies within the exclusive jurisdiction of the Na-
tional Railroad Adjustment Board under Section 3 of the
Railway Labor Act, 45 U. 8S. C. § 153.
3 The action of Santa Fe violates no law and no agree-
ment with the Clerks and hence cannot be enjoined by the
Court.
4. The fact that the Clerks have demanded from Santa
Fe, in a notice duly served under Section 6 of the Railway
Labor Act, a rule which would limit Santa Fe’s right to
abolish positions under any circumstances can have no
effect on the rights of Santa Fe and the Clerks unless and
until such rule actually becomes a part of the agreement
between them. Unless and until such rule is agreed upon,
the rights of the parties are as defined in existing rules and
practices, including the basic collective agreement between
the Clerks and Santa Fe dated November 3, 1963.
5. The relief herein sought by the Clerks must be denied
and the complaint is dismissed.
[ Discussion]
A hearing was had on the merits in the above cause in
order to expedite determination on all facets of this suit
without, however, effecting a waiver of defendant’s motion
to dismiss for failure to state a claim.
The court has concluded that the defendant’s motion to
dismiss should be sustained, and has this day signed and
entered the above Findings of Fact and Conclusions of Law.
The court is persuaded by the rationale of the cases and
authorities cited by defendant that institution of negotia-
tions for collective bargaining pursuant to a Section 6
notice does not change the authority of a carrier to termi-
nate employment of workers if such authority is not sur-
rendered by the terms of an existing agreement or in viola-
tion of law; that the status quo referred to in § 6 is directed
at preventing alteration of existing working conditions and
not those proposed by a § 6 notice.
46a
Clerks v. Santa Fe R. Co.
In this suit no issue is presented on the interpretation
of the contract between the parties for it has been con.
ceded by plaintiff that defendant’s action constituted no
violation of that contract. Thus, that action caused no
change in existing conditions of employment covered by the
agreement, and there exists no labor dispute, minor or
major, between the litigants. Accordingly, there being no
claim alleged upon which relief can be granted, the motion
to dismiss is sustained and an order in accord therewith
has this day been entered.
47a
Flight Engineers v. Western Air Lines
APPENDIX K
Flight Engineers International Association, WES Chap-
ter, AFL-CIO, Plaintiff v. Western Air Lines, Inc., De-
fendant. *
Unirep StTaTEs District Court, SourHern District oF
Catirornia, CentTraL Division
Civil No. 362-61-PH. April 28, 1961
[Nature of Proceedings]
Haw, D. J.: On April 11, 1961, the above case came on
for hearing by order to show cause on plaintiff’s motion
for preliminary injunction, Charles K. Hackler, Esquire,
and Ronald Scheinman, Esquire, appearing for plaintiff
and Hugh W. Darling, Esquire, Donald K. Hall, Esquire,
and D. P. Renda, Esquire, appearing for defendant. Hav-
ing considered plaintiff’s verified complaint, the affidavits
and memoranda of the parties, the stipulations of counsel
made in open court and the evidence taken, having taken
judicial notice of the record in a prior action in this Court,
entitled ‘‘Western Air Lines, Inc., Plaintiff, v. Flight En-
gineers International Association, et al., Defendants’’, Civil
‘Action No. 178-61-HW, and having heard arguments of
counsel, and being fully advised, the Court makes the fol-
lowing Fndings of Fact, Conclusions of Law and Order
with respect to the order to show cause and plaintiff’s
motion for preliminary injunction.
Findings of Fact
1. Plaintiff Flight Engineers International Association,
WES Chapter, AFL-CIO (‘‘the Union’’), is and at all
times material to this case was an unincorporated associa-
tion functioning as a labor organization.
9 Defendant Western Air Lines, Inc. (‘‘Western’’) is
* 43 CCH Lab. Cas. { 17,064.
48a
Flight Engineers v. Western Air Lines
and at all times material to this case was a common carrier
by air engaged in interstate and foreign commerce ang
the transportation of mail for the United States Goverp.
ment, pursuant to certificates of public convenience ang
necessity issued to it by the Civil Aeronautics Board, ap
instrumentality of the United States Government, and as
such is a carrier by air within the provisions of Sections
201, et seq., of the Railway Labor Act (45 U.S.C. A. §§ 18)
et seq.).
[Applicable Collective Bargaining Agreement]
3. As of April 11, 1958, Western entered into a collective
bargaining agreement (the ‘‘collective bargaining agree.
ment’’) with its flight engineers, as represented by the
Union. By its terms the collective bargaining agreement
superseded a prior agreement between Western and its
flight engineers, as last amended July 29, 1957, and was
to continue in full force and effect until January 1, 1961,
thereafter to be subject to change as provided for in See-
tion 6 of the Railway Labor Act (45 U.S.C. A. § 156).
[Establishment of ‘‘System Board’’)
4. As of April 11, 1958, Western also entered into an
agreement with its flight engineers, as represented by the
Union, for the establishment, pursuant to Section 204 of
the Railway Labor Act (45 U.S. C. A. § 184), of a Western
Air Lines Flight Engineers’ System Board of Adjustment
(the ‘‘System Board’’). By its terms this agreement also
was to continue in full force and effect until January 1,
1961, thereafter to be subject to change as provided for
in Section 6 of the Railway Labor Act (45 U.S. C. A. § 156).
5. It was stipulated that the collective bargaining agree-
ment and the agreement establishing the System Board are
now and at all times since January 1, 1961, have been in
full force and effect.
[Injunction Sought by Union]
6. By this action for injunction, the Union seeks an
order enjoining Western from employing any flight engi-
_—_
49a
Flight Engineers v. Western Air Lines
neer who does not hold an A & E or A & P mechanic cer-
tificate at the time of employment and directing Western
to discharge all flight engineers now in its employ who
do not hold one or the other type of mechanic certificate.
[Contention of Union]
7. The Union’s suit is predicated on the collective bar-
gaining agreement and on Western’s practice prior to
February 17, 1961, of requiring that its flight engineers
hold A & E or A & P mechanic certificates at the time of
employment. The Union contends that Western’s practice
established a ‘‘rule’’ or ‘‘working condition’? which under
Section 6 of the Railway Labor Act (45 U.S. C. A. § 156)
Western was required to maintain during the period of
negotiations for a change in the collective bargaining agree-
ment and that in any event the flight engineers employed
by Western since February 17, 1961, do not have the quali-
feations prescribed in the collective bargaining agreement.
[Employer’s Contentions |
8, Western conceded that its practice prior to February
17, 1961, was to require that applicants for positions as
fight engineers hold A & E or A & P mechanic certificates
at the time of employment, but it disputed that such prac-
tice established a ‘‘rule’’ or ‘‘working condition’? which it
was required to maintain during negotiations for a change
in the collective bargaining agreement. Western further
maintained that it is complying with the collective bargain-
ing agreement, that all of the flight engineers hired by it
since February 17, 1961, meet the qualifications prescribed
in the collective bargaining agreement and that in any
event this Court has no jurisdiction to construe or interpret
the agreement in this regard, the System Board being
vested by the Railway Labor Act with the sole and exclu-
sive jurisdiction to interpret and apply the collective bar-
gaining agreement.
9. Since February 17, 1961, Western has employed a sub-
stantial number of flight engineers who do not hold either
an A & E or an A & P mechanic certificate, but all of such
50a
Flight Engineers v. Western Air Lines
individuals are certified flight engineers and, in addition,
hold commercial pilot licenses with instrument ratings, at
the least.
[Applicable Civil Air Regulations]
10. The applicable Civil Air Regulations of the Federaj
Aviation Agency (and the predecessor Civil Aeronautics
Administration) provide that no individual shall serve as
a flight engineer in air commerce on an aircraft of United
States registry without a ‘‘flight engineer certificate’? js.
sued by the Administrator. It is not required or suggested
that a flight engineer also hold a mechanic certificate of
any type.
[Terms of Collective Bargaining Agreement]
11. Section 3 of the collective bargaining agreement
reads:
‘‘Section 3
«QUALIFICATIONS
‘*(A) Any employee who qualified and was desig-
nated as Flight Engineer prior to the effective date of
this Agreement shall be deemed to have met all the
requirements for the position of Flight Engineer in
existence as of that date. In the event additional
requirements initiated by the Company are imposed,
Flight Engineers in the employ of the Company shall
be granted a reasonable period in which to meet such
additional requirements on Company time and at Com-
pany expense.
‘*(B) 1. Except as hereinafter provided in sub para-
graph (2) of this paragraph (B) each Flight Engi-
neer employed by the Company will be required to
have a mechanic’s certificate issued by the CAA with
power-plant and air-frame ratings (A & E or A&P
certificates) or hold a degree in engineering from an
accredited college or university granting such degrees
(only after the completion of a course normally re-
quiring classroom attendance for a period of four (4)
nema a
dla
Flight Engwmeers v. Western Air Lines
years) together with practical experience in the con-
struction, maintenance and repair of aircraft and/or
engines.
“9, Any employee who does not hold an A & E or
an A & P certificate or an engineering degree, as afore-
said, at the time of his employment, but who has the
shop experience or other mechanical qualifications to
be able to secure such certificate within twelve (12)
months after being designated for active line flying
duty as a Flight Engineer with the Company, may be
employed as a Flight Engineer by the Company, and
as a condition of his continued employment as a Flight
Engineer, shall obtain such A & E or A& P certificate
with said twelve (12) month period.
“3. The Company agrees that, anything to the von-
trary in this Agreement nothwithstanding [sic] it will
dismiss as a Flight Engineer any employee covered
by sub paragraph (2) of this paragraph who does not
obtain an A & E or an A & P certificate within twelve
(12) months of his being designated for active line
flying duty as a Flight Engineer by the Company.”’
It is significant that the provisions contained in paragraph
(B), subparagraphs 1, 2 and 3, of the foregoing Section 3
were added to the collective bargaining agreement in 1958
by negotiation.
[Changes in Agreement Sought by Union]
12. On November 28, 1960, the Union notified Western
in writing that it desired to reopen the collective bargaining
agreement. On December 28, 1960, and on January 4, 1961,
the Union submitted detailed proposed changes in the
agreement, none of which involved Section 3. No change
‘n Section 3 has been proposed by the Union at any time.
[Employee’s Refusal to Work)
13. Commencing on February 17, 1961, while conferences
pursuant to Section 6 of the Railway Labor Act (45 U. S.
C. A. § 156) were in progress on the Union’s proposed
an
52a
Flight Engineers v. Western Air Lines
changes in the collective bargaining agreement, Western’,
flight engineers, as a group, refused to report for work
and to take any of Western’s flights. Concurrently, the
flight engineers of American Airlines, Eastern Air Lines,
National Air Lines, Trans World Airlines, Pan American
Airlines and the Flying Tiger Line also went out on strike
across the nation. It was alleged that these walkouts were
part of a nationwide flight engineer demonstration against
a ruling by the National Mediation Board in a represen.
tative dispute under Section 2 Ninth of the Railway Labor
Act (45 U.S. C. A. § 152) involving United Air Lines,
14. The flight engineer walkout brought to a standstil]
all air transportation operations of the affected air carriers,
including Western.
[Strike Temporarily Restrained]
15. On February 18, 1961, Western filed an action in
this Court entitled ‘‘Western Air Lines, Inc., Plaintiff, vy.
Flight Engineers International Association, et al., Defen-
dants’’, Civil Action No. 178-61-HW, to enjoin the strike
by its flight engineers. The Union and its officers and the
Flight Engineers International union and its president
were named as defendants as representatives of the striking
flight engineers. On the same date a temporary restraining
order was issued in such action by the Honorable Ernest
A. Tolin, United States District Judge, enjoining the de-
fendants therein from engaging in and continuing the strike
against Western. The restraining order was served on the
president and vice president of the Union on February 18,
1961, and on February 19, 1961, each member of the Union
was advised of the restraining order by telegram sent by
the Union. Notwithstanding the restraining order, the
strike continued. On February 20, 1961, Western filed a
dismissal of Civil Action No. 178-61-HW.
[Employees Discharged]
16. After commencement of the strike, each of Western’s
flight engineers was personally contacted at the time sched-
uled or assigned for flights and instructed to report for
53a
Flight Engwmeers v. Western Air Lines
work. Flight engineers who refused to report for work
were discharged. The number of flight engineers who re-
fused to report for duty and were discharged by Western
was 123. Seven flight engineers did not refuse to report
for duty and are now flying for Western. Western has
hired flight engineers to replace those discharged and with
the replacements has resumed a substantial portion of its
air transportation operations.
17. On February 21, 1961, the Secretary of Labor of tk>
United States, having taken notice of the nationwide tie-up
in air transportation, issued a statement urging the flight
engineers to return to work and on the same date the
President of the United States appointed a fact finding
board to inquire into the issues giving rise to the tie-up.
All the affected air carriers, except Western, were named
in the Executive Order. On February 23, 1961, the Execu-
tive Order was amended to add Western as a subject of
inquiry. Neither the Secretary of Labor’s statement nor
the President’s Executive Order had the force and effect
of law. The Executive Order simply created a fact finding
board to report to the President and the Secretary of
Labor’s statement simply requested voluntary action on
the part of all concerned, employers and employees, which
either were at liberty to disregard.
[Contract Changes Sought by Employer]
18. This action was filed on March 28, 1961. At a further
bargaining conference held on March 29, 1961, Western
submitted its proposed changes in the collective bargaining
agreement, which proposed changes included the elimina-
tion of Section 3.
19. On April 7, 1961, Western submitted to the System
Board the question of whether or not it was in compliance
with Section 3 of the collective bargaining agreement, with
respect to the qualifications of the flight engineers employed
by it since February 17, 1961.
[Equitable Defenses Raised by Employer]
90. In addition to the contentions set forth in finding 8,
Western interposed certain equitable defenses to the grant-
54a
Flight Engineers v. Western Air Lines
ing of a preliminary injunction in this action, includ;
the defense that the Union was not before the Court with
clean hands by reason of illegal strike action against Weg.
ern, wilful disobedience of the temporary restraining order
issued by this Court in Civil Action No. 178-61-HW ep.
joining the strike and the placing of flight engineer pickets
at Western’s places of business commencing on April 7,
1961. Western contended that the Union, jointly with the
Flight Engineers International union, had ordered and
directed the walkout of Western’s flight engineers and the
disregard of the order enjoining the strike and had ordered
and is directing the picketing which is now going on against
Western. The Union disputed this, but conceded that if
the strike was Union-sponsored the Union violated the
Railway Labor Act. In view of the conclusions hereinafter
reached, it is unnecessary to rule on any of Western’s
equitable defenses, and the Court expressly makes no find.
ing on whether or not the flight engineers strike or the
failure to comply with the restraining order in Civil Action
No. 178-61-HW or the picketing was or is sponsored by
the Union, directly or indirectly, in concert with the Flight
Engineers International union or otherwise.
Conclusions of Law
[Certificate Requirement Not a ‘‘ Rule’’]
1. Western’s practice prior to February 17, 1961, of
requiring that flight engineers hold an A & E or an A&P
mechanic certificate at the time of employment did not
establish a ‘‘rule’’ or ‘‘working condition’’ which Western
was required to maintain during negotiations for a change
in the collective bargaining agreement. A reading of Sec-
tion 6 of the Railway Labor Act (45 U. S. C. A. § 156)
in connection with other applicable Sections of the Act,
particularly subdivisions (5), Sixth and Seventh of Section
2 (45 U.S. C. A. §§ 15la and 152), compels the conclusion
that only agreements reached after collective bargaining
are covered by Section 6 and that the prohibitions of See-
tion 6 against change in rules or working conditions pend-
ing bargaining, and those of Section 2, Seventh, apply only
55a
Flight Engwmeers v. Western Air Lines
to rules and working conditions previously fixed by collec-
tive bargaining agreements. Williams v. Jacksonville Ter-
minal C0., 319 U. 8. 386, 400, 402, 403 [5 LC { 51,130)
(1942).
{No Jurisdiction over Minor Dispute}
9, The question of whether or not the flight engineers
hired by Western since February 17, 1961, have the quali-
fications prescribed in the collective bargaining agreement
involves the meaning and application of subparagraphs 1,
9 and 3 of Section 3 (B) of the agreement. Under the
Railway Labor Act, and particularly subdivisions (5) and
Sixth of Section 2 (45 U.S.C. A. $§ 151a and 152), Section
3 (45 U.S.C. A. §153) and Section 204 (45 U.S.C. A.
§ 184), such issue is a ‘‘minor dispute’’ over which the
System Board has sole and exclusive jurisdiction. This
Court has no jurisdiction to go into or resolve the merits
of the dispute or to construe or interpret the provisions
of the collective bargaining agreement. Elgin, Joliet &
Eastern R. Co. v. Burley, 395 U.S. 711, 725 (9 LC 51,212]
(1945) ; Railroad Traimmen v. Chicago River & I. R. R. Co.,
953 U.S. 30, 33, 39 [32 LC 970,566] (1957); Locomotive
Engineers V. M-K-T R. Co., 363 U. S. 528, 531 [40 LC
{ 66,631] (1960).
2 Plaintiff is not entitled to a preliminary injunction.
Order
In accordance with the foregoing Findings of Fact and
Conclusions of Law, it is heréby ordered, adjudged and
decreed :
1. That the order to show cause issued herein on March
98, 1961, be and it is vacated.
9. That plantiff’s motion for preliminary injunction be
and it is denied.
56a
Trainmen v. Illinois Terminal R. Co.
APPENDIX L
In Tue Unirep States District Court, Eastern Disraicy
or Missouri, Eastern Dtvision
BroTHERHOOD oF RartroaD TRAINMEN, a voluntary unincor.
porated labor organization, Plaintiff,
vs.
Inurvois Terminal Ratzoap Company, a corporation,
Defendant.
No. 66 C 96 (3)
Memoranpum & Orper *
This action brought by the Brotherhood of Railroad
Trainmen against the Illinois Terminal Railroad Company
seeks an injunction restraining defendant from putting into
effect certain work assignments as posted in its bulletins
T-54 and T-55. A hearing was held on an order to show
cause why the injunction prayed for should not be issued,
and by consent of the parties the status quo was to be
maintained until the final determination of the cause by
the Court. Defendant also filed a motion to dismiss which
was taken as submitted along with the case.
Defendant operates a railroad in interstate commerce
and maintains its principal office in St. Louis, Missouri.
Plaintiff is an unincorporated labor organization which is
certified as the bargaining agent for the employees of de-
fendant engaged in railroad train and yard service. Both
plaintiff and defendant are subject to and governed by the
Railway Labor Act.
The parties entered into a collective bargaining agree-
ment effective as of September 1, 1957 and a supplemental
agreement dated as of November 26, 1964. On or about
February 28, 1966, without prior notice to plaintiff, de-
fendant posted upon its bulletin boards maintained at its
* Unreported.
57a
Trammen v. Illinois Terminal R. Co.
McKinley Junction and Federal yards bulletin T-54, and
on or about March 1, 1966, similarly posted bulletin T-55.
Essentially, insofar as this case is concerned, these bulle-
tins operated to change the ‘‘on and off’’ duty points of
assignment 508 and assignment 513, from McKinley Junc-
tion to A. O. Smith, as well as the starting time of assign-
ment 513. Prior thereto, the trainmen involved (six in all)
had reported for duty at McKinley J unction.
For years, defendant had required the diesel crews in-
yolved in these two assignments to report for duty at
McKinley Junction, Madison, Illinois. The only other pre-
vious on-and-off duty point of assignment had been Federal.
Defendant presently ma‘ntains bulletin boards only at these
two points. So, too, lighted parking lots, lockers, and
toilet and shower facilities have been provided only at the
McKinley J unction and Federal yards.
The evidence shows that there has been a constant in-
crease in work in the A. O. Smith area (8 rail miles and
5 highway miles from McKinley Junction) so that presently
the full time use of a switch engine is required. For a
short period of time, the crews of the two job assignments
here involved were taxied at defendant’s expense to and
from McKinley Junction and the A. O. Smith location after
reporting for duty, with the resultant loss to defendant of
some 90 minutes of productive time. As for the change
in starting time, the evidence shows that for years similar
changes had been made unilaterally by defendant to meet
its requirements, without consultation with plaintiff.
Plaintiff contends that the issuance of bulletins T-54 and
7-55 constitute an attempt by defendant to change the
working conditions as prescribed by the existing collective
bargaining agreement, while defendant urges the contrary.
The parties are not in agreement as to whether the dis-
pute between them is a ‘“‘major’’ or ‘‘minor’’ one. It is
the position of the defendant that the action it is taking
is not specifically prohibited by the existing collective bar-
gaining agreement, and it argues for a construction of the
various provisions thereof authorizing it, as a prerogative
of management, to create an additional on and off duty
58a
Traimmen v. Illinois Terminal R. Co.
location at the A. O. Smith nlant for job assignments fg
and 513. Plaintiff argues that the proper interpretation
of the agreement precludes the action which defendant
is proposing, and that for such reason defendant’s conten.
plated action will constitute a violation of the agreement,
We have carefully read the collective bargaining agree.
ment and the amendment thereof, and have concluded that
the proper resolution of the respective contentions of the
parties depends upon the interpretation and application of
the terms and provisions of the agreement in the light of
all of the facts and circumstances. The difference between
major and minor disputes is that the latter pertain to the
interpretation and determination of existing agreements,
whereas the former involve new agreements and changes
in existing contracts. Elgin, Joliet & Eastern Ry. Co. vy.
Burley, 325 U.S. 711. In our view, the dispute between the
parties in this case is a ‘‘minor’’ dispute within the mean.
ing of the Railway Labor Act.
The fact that plaintiff has also served a Section 6 notice
on defendant with respect to the matters here involved
(without waiving its contention that the matters are gov-
erned by the existing agreement) does not operate to
change this minor dispute into a major dispute. Having
determined that the dispute is a minor one, it follows that
the resolution thereof is within the exclusive jurisdiction
of the National Railroad Adjustment Board, and that this
Court has no jurisdiction to adjudicate the merits of the
controversy.
Plaintiff argues that irrespective of whether the dispute
be held to be major or minor, this Court should require
defendant to maintain the status quo pending the exhaus-
tion of the procedures of the Railway Labor Act. So far
as we are advised, neither party has yet invoked the juris-
diction of the National Railroad Adjustment Board.
Whether or not in this factual situation this Court has
jurisdiction to order the maintenance of the status quo, as
plaintiff argues, we find no basis in the facts for the exer-
cise of such jurisdiction.
Plaintiff has not demonstrated it will suffer irreparable
ww
59a
Trawmmen v. Illinois Terminal R. Co.
injury, which is normally required as a basis for granting
this extraordinary relief here sought. Nor has plaintiff
convincingly ho there are any considerations of public
jiey in the ‘twmediate factual situation which would
warrant the grant of a status quo injunction in the absence
of a showing of irreparable injury.
In view of the foregoing, defendant’s motion to dismiss
should be and is hereby sustained, the order to show cause
ig discharged, and Ir Is Henesy Onperep that plaintiff’s
complaint be and it is hereby dismissed.
Dated this 24th day of May, 1966.
/s/ Joun K. Reoay,
United States District Judge.
60a
TCEU v. Illinois Central R. Co.
APPENDIX M
Unrtep Srates District Court, SoutHERN District op
Mississippi, JACKSON DIvIsIOoN
Civil Action Number 4192
TRANSPORTATION-COMMUNICATION EMPLOYEES Union,
ET aL, Plaintiffs,
Vv.
Inuinois CentraL Rarmroap Company, Defendant
OPINION *
The plaintiffs seek a temporary injunction against the
defendant to enjoin it from putting into operation a com.
puter complex on its system which is designated as
‘*M-A-I-N.’’ The suit seeks to maintain the status quo
with respect to jobs which may be altered by the installa-
tion of this expensive, but very helpful and modern com-
munication. Realistically, the installation of this equip.
ment along this entire railroad system may result in some
job changes which the members of the plaintiffs’ union
will probably contend belong to them, while the members of
another union known as Brotherhood of Airline and Rail-
way Steamship Clerks claim such jobs as belonging to
them; and the defendant presumably shares the view of the
latter group. The Clerks’ union is not a party to this suit.
The plaintiffs have invoked the aid and assistance of the
National Mediation Board under what is called a §6 notice.’
* Unreported.
1The services of the National Mediation Board has been enlisted by
plaintiffs in this ease. 45 U.S.C., 1946 ed., § 156 (Section 6 of the Rail-
way Labor Act), among other things, provides: “Rates of pay, rules,
or working conditions shall not be altered by the carrier until the con-
troversy has been finally acted upon as required by Section 155 of this
title, by the Mediation Board, unless a period of ten days has elapsed
after termination of conferences without request for or proffer of serv-
ices of the Mediation Board.” The board has not organized or entered
upon any hearing of this matter at this time.
=_
6la
TCEU v. Illinois Central R. Co.
The validity and tenability of such notice and the proceed-
ing thereunder is assailed. Defendant contemplates putting
this system into operation early im October 1967 unless
enjoined. The plaintiffs contend that the status quo require-
ment of 49 U.S.C. §156 (Section 6 of the Act) makes it
mandatory that the railroad desist from such action in
complying with such requirement of the act. The defendant,
on the other hand, says that the status quo requirement of
the act relates to any change in the express provisions of
the contract itself, and not in mere technological, opera-
tional and organizational changes which it has the contract
right to make under its mediation agreement with plain-
tiffs. Thus, it is sought to have the Court now enjoin the
railroad from putting into effect this new system of com-
munication designed to effect large economies and ex-
‘te and facilitate better service to the public, until the
poard has decided to whom such new jobs created thereby
will belong. There is nothing in the act which provides that
the board can protect the subject of such a dispute pending
its determination thereof.
Counsel on both sides have stipulated as to the undis-
augmented or supplemented such stipulation by any other
or further evidence or testimony. A delay in the operation
of the ‘‘M-A-I-N”’ computer system would result in very
large financial losses to the railroad as stated in paragraph
99 of the stipulation. The losses which plaintiffs contend
they will suffer in the absence of an injunction appear as
argumentative conclusions not supported by any fact. On
the other hand, the railroad by its stipulation and in oral
argument before the Court assures the Court in §21 of the
stipulation that plaintiffs and its members will be pro-
tected and lose nothing on any job position this year, or
even longer, if necessary. No emergency necessitating
injunctive relief is thus shown to exist. The relative rights
and positions of the parties must be considered and the
equipoise of probabilities weighed and considered for a
proper determination as to the duty of the Court, or not,
to issue such extraordinary processes now. The Court will
make no decision further than is absolutely necessary to
62a
TCEU v. Illinois Central R. Co.
a solution of the problem before the Court without impair.
ing the questions to be considered and decided on fing)
hearing.
It is the view of this Court under the circumstances that
nothing contemplated to be done by the defendant in the
installation of such ‘‘M-A-I-N’’ computer system while this
controversy remains before the National Mediation Boarg
can, or will affect, or impair any vested right of the plain.
tiff union, or its members as prescribed by §156, supra,
There would appear no sound reason for deferring the
operation of this valuable equipment until this collateral
question is decided. But a discharge of an employee whose
job was obviated and made useless or unnecessary by in.
stallation of the equipment is not contemplated by the
Court in this decision.
The installation by the carrier of this modem
‘*M-A-I-N’’ computer system on its lines does not come
as any change in any existing contract between the parties,
Actually, it is in furtherance of an express provision in the
mediation contract betweéi tli@se*parties.*? It may well be
doubted on reliable precedent that the Section 6 notice in
suit is a notice within the purview of 45 U.S.C. 4156, supra.
The Clerks are not parties to this suit, but the plaintiffs
seek by this notice to ingraft upon the contract a clause
which would confer jobs created by the use of this new
equipment upon the plaintiffs rather than the Clerks.
2The mediation agreement of February 7, 1965 between the parties
in Article 3, Section 1 provides: “The organizations recognize the right
of the carriers to make technological, operational and organizational
changes, and in consideration of the protective benefits provided by this
Agreement the carrier shall have the right to transfer work and/or
transfer employees throughout the system which do not require the
crossing of craft lines.”
3A jurisdictional dispute between unions over a job is not to be
resolved by the Courts under that act. Southern Pacific Co., et al v.
Switchmen Union of North America, (9CA) 356 F.2d 332 so holds.
Significantly, appellees’ complaint there to enjoin such work was dis-
missed by the trial court and no appeal was taken. The appeal involved
the carrier’s counter action and that of the affected union for a counter
claim and summary judgment which was denied by the trial court and
granted by the Court of Appeals. The Court said that Section 6 of the
act was not designed or intended for the purpose sought.
—
TCEU v. lilinois Central R. Co.
The view expressed in Southern Pacific by the Ninth
Cireuit is shared by the National Mediation Board as well
as by the Courts.t There would appear to be no basis or
justification for the granting of a temporary injunction
‘n this case and such request is denied. This memoranda
and the stipulation of the parties suffice to conform with
the requirements of Civil Rule 52 in this case.
A judgment accordngly may be presented.
s/ Hanotp Cox
United States District Judge.
October 4, 1967
4 Williams, et al v. Jacksonville Terminal Co., 315 US 386, 62 Ss. Ct.
659; Norfolk & Portsmouth Belt Line Railroad Co. V. Brotherhood of
Railroad Trainmen, Lodje No. 514, et al, (4CA) 243 F.2d 34.
64a
SP&S R. Co. v. Conductors
APPENDIX N
Unrrep States District Covrr ror THe Disraicr op
CoLUMBIA
Civil Action No. 2528-66
Spoxane, Portuanp & Seatrie Raiway Co.,
v.
Orper or Rarm.way Conpuctors AND BRaKkeMEN
Transcript of Proceedings, April 25, 1967
[2] Mr. Hux (Counsel for the ORC&B): .. . I have
handed up to the Court and have given to Mr. Shea a draft
of preliminary injunction. It is the typewritten draft
before Your Honor. I have given a copy to Mr. Shea. It
incorporates all the changes we have been able to agree
on, but there are still some areas of dispute which Mr.
Shea wishes to present to the Court. I think at this time
I should let him present his objections to this draft, sir.
The Court: Before counsel proceed, perhaps it may
simplify and expedite matters if I very briefly and simply
state what I had in mind.
I had in mind that there was an agreement between the
parties, that March 25th agreement. There is a dispute as
to what it meant. That dispute was submitted, and proper-
ly submitted under the law, to the National Railway
Adjustment [3] Board.
Incidentally, the submission was made by the carriers,
although it makes no difference which party submitted it.
When the Board shall have spoken, its interpretation
will constitute the agreement between the parties. Either
side can institute proceedings by Section 6 notice to change
it; but until that is accomplished the agreement will remain.
Now my purpose or the thought I had in mind, my in-
_—_
65a
SP&S R. Co. v. Conductors
tention was to issue an injunction to maintain the status
quo until the Board makes its decision, a partial status
quo, to provide that no crew shall be reduced below one
conductor and two brakemen. I had no intention of going
beyond that.
Now I have not seen the two drafts, but I thought I
would indicate to you gentlemen what I had in mind in
rendering my decision. I thought I made it clear, perhaps
| didn’t, but this may simplify this.
[5] The Court: Here we have an agreement. The ques-
tion is what the agreement means.
Mr. Suea (Counsel for the railroad): Right.
The Court: The Adjustment Board has before it the
proceeding to determine the meaning
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.