Appendix — Chicago & North Western Railway Co. v. United Transportation Union
Supreme Court brief1971
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(i)
~ IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1970
No. 189
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CHICAGO AND NORTH WESTERN RAILWAY COMPANY,
Petitioner,
v.
UNITED TRANSPORTATION UNION,
Respondent.
Z = 0N WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
: FOR THE SEVENTH CIRCUIT
TABLE OF CONTENTS
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Washington, 0. C. - THIEL PRESS - 202 - 383-0825
(ii)
Affidavit of Larry S. Provo on Behalf of the Plaintiff,
Chicago and North Western Railway Company........... 54
pk eee eee TTT TT 57
Motion To Vacate Temporary Restraining Order ........... 58
Amendment to Verified Complaint ................... 60
Verified Answer to Verified Complaint ................. 62
Excerpts from Transcript of Proceedings:
James E. Wolfe:
es sch b kee ba As Nw ae OOO ae 66
EE so in Séae boa eS RoR We Ob ws Wee 83
Pe adi asie cath ede bh ch ce nee ae e's 103
James R. Wolfe:
ETE ane Green ae arene 104
i cna. ks be tebe Awa Ree eee eee 143
Pe ee Te Te ee ee ee TTT Tee 188
EO a ee ea ea a ee 192
SCT eee eer TT ee Tee ere 193
CS rer eee Cy ee ere ee 195
EE oe sk ess eae en Versace uweiauave 197
CE eke ceri nk kh weewdae eee awe ee 198
Findings of Fact and Conclusions of Law ............... 200
Order of the United States Court of Appeals for the
DE civ cdaertheesesCekeseek ee secu ws 208
Opinion of the United States Court of Appeals for the
PEE. kde hee ROARK ASHE CESS WORSE KEKE KOS 210
Judgment of the United States Court of Appeals for the
i SOOT TETUTeU TTC rCC Cre Le 230
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHICAGO AND NORTH WESTERN
RAILWAY COMPANY, a corporation,
Plaintiff,
vs. Civil Action
No. 69-C-2401
UNITED TRANSPORTATION UNION,
a voluntary association,
Defendant.
DOCKET ENTRIES
11-19-69 - Defendant temporary restrained. Plaintiff's
bond fixed at $5,000.00. Defendant to show cause at
2 p.m. on November 28, 1969 why plaintiffs motion for
preliminary injunction should not be granted etc. - DRAFT-
Perry, J. Mailed Notice 11-20-69
11-20-69 - Filed Verified complaint and 4 copies
11-20-69 - Filed Bond as security for restraining order
11-20-69 - Filed Designation of case
11-20-69 - Filed 2 affidavits pursuant to G.R. 39 by
attorneys for plaintiff
11-20-69 - Filed Affidavit of James E. Wolfe on behalf
of Chicago and North Western Railway Company
11-20-69 - Filed Affidavit of James R. Wolfe on behalf
of Chicago and North Western Railway Company
11-20-69 - Filed Affidavit of Larry S. Provo on behalf of
the plaintiff, Chicago and North Western Railway Company
11-20-69 - Filed Motion of plaintiff for preliminary
injunction
2
11-20-69 - Filed Motion of Plaintiff for temporary
restraining order
1 1-20-69 - Issued summons and 4 copies with 4 copies of
complaint.
11-21-69 - Filed appearance of defendant and that of its 7°
attorney.
11-21-69 - Filed affidavit under Rule 39.
11-25-69 - Filed Notice, Defendant’s motion to vacate
temporary restraining order and affidavit of Francis D. Tuff-
ley.
11-25-69 - Filed Plaintiff Carrier’s memorandum in sup-
port of its motion for preliminary injunction.
11-25-69 - Filed Carrier’s memorandum in opposition to
defendant’s motion to vacate temporary restraining order.
11-25-69 - Filed Affidavit pursuant to G.R. 39 by attor-
ney for defendant.
11-25-69 - Motion to vacate temporary restraining order
argued in part for the defendant and continued to 2 p.m.
on 12-2-69 - Perry, J. Mailed notice 11-26-69.
11-28-69 - Defendants show cause why plaintiffs motion
for preliminary injunction should not be granted continued
to 12-2-69 at 2 p.m. Order temporary restraining order
extended in full force and effect to and including 12-6-69
at midnight - Perry, J. Mailed Notice 11-28-69.
12-1-69 - Filed Amendment to verified complaint.
12-2-69 - Filed defendant’s verified answer to verified
complaint.
12-2-69 - Filed defendant’s memorandum.
11-25-69 - Order cause referred to the Executive Com-
mittee for reassignment to the calendar of Judge Perry, who
has agreed to accept, same, if Judge Hoffman agrees to the
transfer and acceptance of another case from Judge Perry’s
calendar. The parties have agreed and consented in open
court to such reassignment for the reason that it is an emer-
3
gency matter requiring an early hearing and Judge Hoffman
would not be able to entertain an early hearing because of
pressure of other matters requiring his attention, now pend-
” “ing on his calendar. PERRY, J. Mid Notices 12-3-69.
11-25-69 - IT IS ORDERED that the above entitled
cause be, and the same is hereby reassigned to Judge
PERRY. The Executive Committee. (DRAFT). Mld
Notices 12-3-69.
12-2-69 - Evidence heard in part for plaintiff on its
motion for a preliminary injunction and continued to
December 3, 1969 at 1:30 P.M. Motion of defendants to
vacate restraining order continued to December 3, 1969.
PERRY, J. Mid Notices 12-3-69.
12-3-69 - Further evidence heard for the plaintiff and
cause continued to December 4, 1969 - Perry, J.
12-4-69 - Further evidence heard for the plaintiff and
cause continued to December 5, 1969 - Perry, J. Mailed
Notice 12-8-69 (2 orders).
12-5-69 - Filed Carrier’s reply memorandum.
12-5-69 - Further evidence heard for the plaintiff and
plaintiff rests. Motion defendants to deny preliminary
injunction argued. Cause continued to 12-11-69 at 2 p.m.
for entry of findings of fact, conclusions of law and judg-
ment order - Restraining order continued in full force and
effect to 6 p.m. 12-12-69 - Perry, J. Mailed Notice 12-9-69.
12-11-69 - Filed bond as security for injunction pending
appeal.
12-11-69 - Filed plaintiff's motion for injunction pend-
ing appeal.
12-11-69 - Filed memorandum in support of plaintiff's
motion for an injunction pending appeal.
12-11-69 - Enter findings of fact and conclusions of law.
Order defendants motion to vacate temporary restraining
4
order issued November 19, 1969 denied. Plaintiff's motion
for preliminary injunction denied. Order plaintiff to recom-
pense defendants, etc. Complaint dismissed at plaintiff's
cost. (DRAFT) Defendant enjoined pending appeal and
bond fixed at $25,000.00. (DRAFT) Plaintiff's bond in
the amount of $25,000.00 approved and filed. - Perry J.
Mailed notices 12-12-69
12-11-69 - Filed plaintiff's notice of appeal.
12-12-69 - Mailed copy to defendant’s attorneys.
12-12-69 - Filed defendant’s notice of appeal.
. 12-12-69 - Filed defendant’s request for short record on
appeal.
12-12-69 - Mailed copy of notices of appeal to plaintiff's
attorneys.
12-12-69 - Clerk’s File Copy of Transcripts of proceed-
ings had before Judge Perry on November 25, December 2,
3,4,5, and 11, 1969 filed by Official Court Reporter., (6
volumes)
12-15-69 - Certified and transmitted to U.S.C.A., 7th
Circuit, short record on appeal as requested by defendant-
appellant.
12-18-69 - Filed Bond on Appeal.
12-24-69 - Filed plaintiff-appellant’s request for complete
record on appeal.
12-26-69 - Filed plaintiff's exhibits 1 through 25.
5
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
[Caption omitted in printing]
VERIFIED COMPLAINT
Now comes the plaintiff, Chicago and North Western
Railway Company, a corporation, by its attorneys, James
P. Daley, Robert Schmiege, William H. Dempsey, Jr., and
David Booth Beers, and for its cause of action against the
defendant, United Transportation Union, an unincorporated
association, states:
1. This action arises under the Railway Labor Act, 44
Stat. 577, as amended, 45 U.S.C. 88 151-160. The jurisdic-
tion of this Court is grounded upon 28 U.S.C. 8 1331 and
1337. The matter in controversy exceeds, exclusive of
interest and costs, the sum or value of ten thousand dollars.
2. The plaintiff, Chicago and North Western Railway
Company (hereinafter referred to as the ““C&NW” or the
“carrier”), is a corporation which is engaged in the trans-
portation of freight and passengers by rail in interstate com-
merce and is a “carrier” as defined in Section 1 of the Rail-
way Labor Act (45 U.S.C. § 151).
3. The defendant, United Transportation Union (herein-
after referred to as the ““UTU” or the “organization’’) is an
unincorporated voluntary association and a labor organiza-
tion with an office and place of business at 120 West Madi-
son Street, Chicago, Illinois, which represents for purposes
of collective bargaining under the Railway Labor Act cer-
tain of the plaintiff's employees. The defendant, UTU, is
the successor organization to four other labor organizations,
including the former Brotherhood of Railroad Trainmen
(hereinafter referred to as the “BRT’’).
4. On July 3, 6 and 7, 1965, the BRT served upon the
plaintiff notices proposing changes in the existing collective
bargaining agreements between the carrier and the organiza-
tion. The notices were purportedly served under Section 6
of the Railway Labor Act (45 U.S.C. § 156), and in com-
6
bination they proposed a rule, to be effective January 26,
1966, requiring a minimum crew consist of one conductor
(or foreman) and two trainmen (or helpers) in most classes
of service on the carrier, and a minimum crew consist of
one conductor and three brakemen in a few other classes
of service on the carrier. These notices were similar to
notices served by the BRT upon more than eighty other
railroads at or about the same time. On December 24,
1965, the plaintiff served upon the BRT counter-notices
under Section 6 of that Act, proposing the elimination of
existing crew consist rules and the creation of a new rule
giving management the right to determine crew size unilat-
erally in all classes of service. These counter-notices were
similar to notices served upon the BRT by more than eighty
other railroads at or about the same time.
5. The BRT notices and carrier counter-notices referred
to in Paragraph 4 above were discussed by the parties in
conferences held on the property of the carrier, but no
agreements were reached. The dispute was also the subject
of mediation under the auspices of the National Mediation
Board. However, mediation failed to produce any agree-
ments, and the Mediation Board urged the parties to submit
the dispute to arbitration. When the BRT declined, on
October 16, 1969, the Board terminated its services.
6. During the period of the dispute alleged in Paragraphs
4 and 5 above, the BRT was succeeded as an entity by the
defendant, UTU, although the individual negotiators for the
two organizations have for the most part been the same
throughout, and the positions now taken in the dispute by
the UTU are the same as those taken formerly by the BRT.
7. The UTU takes the pusition that from and after
November 16, 1969, or thirty days after the termination
of the Mediation Board’s services in the dispute alleged in
Paragraphs 4 and 5 above, the procedures of the Railway
Labor Act for resolving disputes of the kind raised by the
BRT’s notices and the carrier’s counter-notices have been
exhausted. The UTU takes the further position that from
and after November 16, 1969, it has been free to strike the
7
carrier if it does not accede to the organization’s demands
in this dispute.
8. The plaintiff disagrees with the position of the UTU
set forth in Paragraph 7 above. The plaintiff takes the posi-
tion that the UTU has not complied with the requirements
of Section 2 First of the Railway Labor Act (45 U.S.C. §
152 First) “‘to exert every reasonable effort to make and
maintain agreements concerning rates of pay, rules, and
working conditions” in the present dispute, in that:
First: Having insisted in the foregoing dispute upon bar-
gaining separately with the plaintiff carrier instead of bar-
gaining jointly with all the railroads upon which the BRT
had served like notices, nevertheless
(a) The defendant has refused to bargain on the pro-
posals in the carrier’s counter-notices to reduce the size of
main line road crews;
(b) The defendant has insisted that any agreement on
the C&NW be no more favorable to the C&NW than agree-
ments reached on the other railroads upon which the BRT
served like notices;
(c) The defendant has entered negotiations with a
fixed position and a determination not to deviate from the
position regardless of what relevant consideration might be
advanced by the C&NW; and
Second: Notwithstanding the foregoing, the defendant
has refused to engage in national handling of this dispute
and to negotiate on a joint basis a national crew consist
agreement with all the railroads on which the BRT served
like notices.
9. The UTU has threatened to strike the plaintiff. For
the reasons set forth in Paragraph 8 above, this threatened
strike of the carrier by the UTU is in violation of the Rail-
way Labor Act.
10. If not enjoined by this Court the illegal strike alleged
in Paragraph 9 above will cause great and irreparable injury
to the plaintiff and to the public. The operation of the
plaintiff will be brought to a virtual halt. The plaintiff
8
operates in eleven states, serving ten major cities; has
11,547 miles of track; interchanges with other railroads at
some 230 points; transports over 4,000 loaded freight cars
a day; serves about 20,000 industries, of which several hun-
dred plants (including Chrysler Corporation at Belvidere,
Illinois, American Motors Corporation at Kenosha, Wiscon-
sin, Green Giant Company at Le Seuer, Minnesota, and
Minnesota Mining & Manufacturing Company at St. Paul,
Minnesota) depend entirely upon the plaintiff carrier for
rail service; moves both munitions and defense equipment
(providing the only rail service to Great Lakes Naval Train-
ing Station, Fort Sheridan Army Base, Box Elder Air Force
Base, and Badger Ordnance Works); and provides service for
about 90,000 passengers a day in its passenger service
between Chicago, Illinois and its suburbs. Thus, a strike if
not enjoined will greatly interfere with the transportation
in interstate commerce of freight and passengers, including
military personnel and material, and food and other lading
essential to the public health and safety. Moreover, the
plaintiff will be deprived of over $750,000 a day in operat-
ing revenues, will be unable to maintain or use its properties
and equipment in which it has a substantial investment, will
lose business permanently to competing forms of transpor-
tation, and will be unable to fulfill its obligations under the
Interstate Commerce Act to serve the public. Finally,
about 14,200 of the plaintiff's employees will be deprived
of their positions and earnings for the duration of the strike.
WHEREFORE, the plaintiff prays that this Court (1)
adjudge and declare that the procedures of the Railway
Labor Act have not been exhausted with respect to the dis-
pute alleged in this complaint and that the UTU has not
been free to strike the plaintiff on or after November 16,
1969; (2) restrain and enjoin the UTU, its divisions, locals,
officers, agents, employees, members and all persons acting
in concert with them for authorizing or engaging in any
strike against or picketing of the plaintiff in connection
with the dispute alleged in this complaint; and (3) grant to
the plaintiff its costs and such other relief as may be
proper.
{subscriptions and verification omitted in printing]
9
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
[Caption omitted in printing]
MOTION FOR TEMPORARY RESTRAINING ORDER
Now comes the plaintiff, Chicago and North Western
Railway Company, by its attorneys, and moves the Court
for a temporary restraining order, restraining the defend-
ant, United Transportation Union, each of its divisions,
lodges, officers, agents, servants, counsellors, members, and
all persons acting by, through and for it, or on its behalf,
from authorizing or engaging in any strike or picketing
pending a hearing and determination of the plaintiff's
motion for a preliminary injunction, for the reasons and
upon the grounds that immediate and irreparable injury,
loss, and damage will result to the plaintiff and to the pub-
lic before a hearing can be had thereon, all as :nore particu-
larly appears in the verified complaint herein, the Affidavit
of James E. Wolfe, the Affidavit of James R. Wolfe, and
the Affidavit of Larry S. Provo, all filed herewith.
[Subscriptions and verification omitted in printing]
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
[Caption omitted in printing]
MOTION FOR PRELIMINARY INJUNCTION
Now comes the plaintiff, Chicago and North Western
Railway Company, by its attorneys, and moves the Court
for a preliminary injunction, enjoining the defendant, United
Transportation Union, each of its divisions, lodges, officers,
agents, servants, counsellors, members, and all persons act-
ing by, through or for it, or on its behalf, from authorizing
or engaging in any strike or picketing pending a final judg-
ment on the merits of the plaintiff's complaint herein.
As is more fully set forth in the verified complaint herein,
and in the affidavits of James E. Wolfe, James R. Wolfe,
10
and Larry S. Provo, all filed herewith, the grounds for this
motion are as follows:
1. In 1965 and 1966 the parties exchanged bargaining
notices served under Section 6 of the Railway Labor Act
(45 U.S.C. $8 156), each demanding new rules to govern the
size or “consist” of crews on the plaintiff's system. The
union proposed in general that all crews be operated with
a minimum crew consist of one conductor and two brake-
men in most classes of service and a minimum crew consist
of one conductor and three brakemen on some crews in
road service. The carrier’s proposal was that existing crew
consist rules be eliminated and that a new rule commit the
matter of determining proper crew size to managerial dis-
cretion. Like notices were exchanged at about the same
time by the union and more than eighty other railroads.
2. After conferences on the property of the carrier and
mediation sessions under the auspices of the National
Mediation Board had been conducted pursuant to Sections
5 and 6 of the Railway Labor Act (45 U.S.C. 88 155, 156)
without any agreements being reached, the Mediation Board
urged the parties to settle the dispute by arbitration. When
the union refused to arbitrate, the Mediation Board termi-
nated its services on October 16, 1969.
3. The union has taken the position that from and after
November 16, 1969—thirty days following the termination
of the Mediation Board’s services—the procedures of the
Railway Labor Act for resolving disputes of this kind have
been exhausted and that the union is therefore free to
strike the carrier to enforce its demands.
4. The required procedures of the Railway Labor Act
have not been exhausted with respect to this dispute,
because the union has not complied with the requirements
of Section 2 First of the Act (45 U.S.C. § 152 First) “to
exert every reasonable effort to make and maintain agree-
ments concerning rates of pay, rules, and working condi-
tions” in that:
First: Having insisted in the foregoing dispute upon bar-
gaining separately with the plaintiff carrier instead of bar-
11
gaining jointly with all the railroads upon which the BRT
had served like notices, nevertheless
(a) The defendant has refused to bargain on the pro-
posals in the carrier’s counter-notices to reduce the size of
main line road crews;
(b) The defendant has insisted that any agreement on
the C&RNW be no more favorable to the C&NW than agree-
ments reached on the other railroads upon which the BRT
served like notices;
(c) The defendant has entered negotiations with a
fixed position and a determination not to deviate from the
position regardless of what relevant considerations might be
advanced by the C&NW; and
Second: Notwithstanding the foregoing, the defendant
has refused to engage in national handling of this dispute
and to negotiate on a joint basis a national crew consist
agreement with all the railroads on which the BRT served
like notices.
5. Under these circumstances the strike by the union in
this dispute is in violation of the Railway Labor Act and
will cause grave and irreparable injury to the plaintiff and
to the public. It should therefore be enjoined.
[Subscriptions and verification omitted in printing]
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
[Caption omitted in printing]
AFFIDAVIT OF JAMES E. WOLFE ON BEHALF OF
CHICAGO AND NORTH WESTERN RAILWAY COMPANY
James E. Wolfe, of full age, being duly sworn according
to law, upon his oath deposes and says:
1. Prior to my retirement on July 31, 1967, 1 was the
Chairman of the National Railway Labor Conference, which
has since January 1, 1963, been the bargaining arm in
national labor matters for most of the nation’s railroads.
12
In that position I was the Chief Negotiator and Spokesman
for the railroad industry in all national labor disputes. * * *
2. The issue of manning requirements on railroad freight
and passenger trains and yard assignments—that is, the num-
ber of men needed to operate trains—has divided the
nation’s railroads and the unions representing their operating
employees for many years. * * *
3. * * * In the 1950's trains were generally required to
have a minimum crew consist of one conductor (sometimes
called a “foreman” in yard service) and two or three train-
men or brakemen (sometimes called “helpers” in yard serv-
ice). * * *
4. In this situation, substantially all the nation’s rail-
roads, on November 2, 1959, initiated steps for abolishing
the long existing and obsolete crew consist rules, as well as
a number of other work rules requiring inefficient use of
manpower, by serving upon the five operating unions,
including the Brotherhood of Railroad Trainmen (herein-
after referred to as the “BRT’’), with bargaining notices
under Section 6 of the Railway Labor Act (45 U.S.C.
§ 156). (On January 1, 1969, the BRT was merged, together
with three other unions, into the United Transportation
Union. Throughout this affidavit, I use the term “BRT”
for purposes of simplicity even where the events in question
occurred after January 1, 1969.) With respect to the con-
sist of train crews, the carriers in these notices proposed to
establish a new national rule which in general would give
to the carriers the right to determine the consist of train
crews in most classes of train service.
5. The Chicago and North Western Railway Company
(hereinafter referred to as the “C&NW’’) has participated in
this dispute from its inception in 1959. Until 1963 the
C&NW was represented through a Power of Attorney by
the Western Carriers’ Conference Committee. When the
National Railway Labor Conference (hereinafter referred to
as the “NRLC”) was formed on January 1, 1963, the
; 13
C&NW was represented through a Power of Attorney by
the Conference Committees and the NRLC.
6. In the months following the service of the November
2, 1959, notices, conferences to discuss these notices were
held within the framework of the Railway Labor Act on
the properties of the individual carriers. No agreements
were reached, however. By letter of June 9, 1960, the
chairmen of the Eastern, Southeastern, and Western Car-
riers’ Conference Committees invited the chief executives
of the five operating unions, including the BRT, to com-
mence national negotiations “‘to deal concertedly with the
Carriers’ Conference Committees” on the subject of the
notices. All the unions agreed, and meetings of national
bargaining committees designated by the carriers and by the
organizations were thus begun on June 9, 1960. They
extended through October 17, 1960.
7. On September 7, 1960, the BRT and the four other
operating unions served counter-notices upon most of the
nation’s railroads pursuant to Section 6 of the Railway
Labor Act. The BRT and other organizations representing
employees in train service (in contrast to engine service)
proposed a new national! rule which, in general, would
require the use of not less than one conductor (or foreman)
and two trainmen (or helpers) on virtually all crews in road
and yard service.
8. * * * [O]n October 17, 1960, the chief executive offi-
cers of the five operating organizations and the chairmen
of the Carriers’ Conference Committees entered into an
agreement requesting the President to establish a Presiden-
tial Railroad Commission to investigate and report the facts
with respect to the controversy between the parties involv-
ing their respective Section 6 notices of November 2, 1959,
and September 7, 1960. * * *
9. * * * [O]n November 1, 1960, President Eisenhower
by Executive Order No. 10891 established a Presidential
Railroad Commission * * *
14
10. * * * On February 28, 1962, the Commission
delivered a comprehensive report of its findings and recom-
mendations to President Kennedy. The carriers accepted
the Commission’s recommendations; they were rejected by
the Unions. On the crew consist issue, the Commission
found that there was “‘overmanning” of trains in road and
yard service and recommended that an agreement be nego-
tiated by the parties which would provide for the adoption
of national criteria for determining the proper consist of
crews, for negotiation with respect to particular crews on
individual carriers, and for local arbitration in the event a
carrier and the organizations could not agree upon proposed
changes in the consist of train crews. (Commission Report,
pp. 57-60). The Commission stated that it believed its
“recommendations with respect to this issue should have
nationwide application.” (Commission Report, p. 64.)
11. National conferences on the parties’ Section 6
notices were resumed on April 2, 1962 and continued
through May 17, 1962.
12. On May 21, 1962, the BRT and the four other
organizations involved in these national negotiations applied
for the mediatory services of the National Mediation Board
pursuant to Section 5 of the Railway Labor Act (45 U.S.C.
§ 155). Mediation sessions with representatives of the car-
riers and of the organizations were conducted under the
auspices of the Chairman of the Mediation Board for nearly
a month without reaching an agreement. On June 26,
1962, the Board requested and urged the parties to agree to
submit the controversy to arbitration under Section 7 of
the Railway Labor Act (45 U.S.C. 8 157); and while the
carriers accepted this proffer of arbitration, the Unions
rejected it. On July 16, 1962, the Board advised the parties
that it had found no practical method of resolving the con-
troversy and on that day terminated its mediatory services.
13. On July 17, 1962, upon receipt of notice that the
Mediation Board had terminated its services, the carriers
notified the five organizations that as of August 16, 1962,
15
the carriers would put into effect rules providing for changes
in crew consist requirements * * *. On July 26, 1962, the.
organizations brought a court action to enjoin this plan, * * *
Subsequently, on March 4, 1963, the Supreme Court in
Brotherhood of Locomotive Engineers v. Baltimore & O.
RR., 372 U.S. 284 (1963), held that the parties’ Section
6 notices were proper under the Railway Labor Act, and
that the parties were free to resort to self-help—the carriers
to make effective their proposals, the unions to strike—sub-
ject only to the possible creation of an Emergency Board
by the President under Section 10 of the Railway Labor
Act (45 U.S.C. 8 160).
14. Following this decision by the Supreme Court, the
President on April 3, 1963, signed Executive Order No.
11101 creating Emergency Board No. 154 to investigate the
work rules dispute and report its findings. The Emergency
Board commenced its work on April 11, 1963, held a series
of meetings with the parties, and reported to the President
on May 13, 1963. The findings and recommendations of
this Board were substantially the same in principle as those
of the Presidential Railroad Commission. * * * The report
and these recommendations were promptly accepted by the
carriers. The Unions, on the other hand, announced that
they would neither accept nor reject the Board’s recommen-
dations but that they were willing to use the recommenda-
tions as a basis for further negotiations. * * *
15. National negotiations between representatives of the
carriers and of the organizations were resumed on May 20,
1963, and continued in the form of conferences and media-
tion sessions until July 10, 1963. The parties were assisted
by the mediatory efforts of the Secretary of Labor, who
prepared a draft memorandum of agreement for the settle-
ment of certain aspects of the controversy, including the
crew consist issue. The Secretary’s suggestions were
accepted by the carriers but rejected by the Unions. Simi-
larly, the carriers accepted but the Unions rejected a pro-
posal by President Kennedy that the parties submit all
issues in dispute to Associate Justice Goldberg of the
16
Supreme Court for mediation and, if necessary, for arbitra-
tion. On July 10, 1963, with the parties agreeing to with-
hold unilateral action in the dispute, the President appointed
a six-member subcommittee of his Labor-Management Advi-
sory Committee, headed by the Secretary of Labor, to
undertake a further comprehensive review of the facts and
issues in the controversy. This committee, in a report to
the President on July 19, 1963, found that “developments
since the report of the Emergency Board had narrowed con-
siderably the area of disagreement”; that both parties had
“agreed in principle to a procedure for handling the prob-
lem” based upon the recommendations of the Secretary of
Labor; but that the parties had not been able to agree upon
the scope of the suggested procedure or upon the accepta-
bility of arbitration as a terminal step in resolution of the
dispute.
16. The President on July 22, 1963, * * * urged Con-
gress to enact a law requiring the issues dividing the parties
to be submitted to the Interstate Commerce Commission
for final and binding disposition. The Congress responded
with the enactment of Public Law 88-108, 77 Stat. 132,
which was approved by the President on August 23, 1963.
This Act directed that certain portions of the controversy,
including the crew consist issue, be submitted for “com-
plete and final disposition” by a board of arbitration. * * *
17. The board of arbitration established by Public Law
88-108, designated as Arbitration Board No. 282, consisted
of two representatives named by the carriers, of whom |
was one, two named by the organizations, and three neutral
members. The Board held hearings, considered evidence,
and heard arguments between September 11, 1963, and
November 25, 1963, when it filed its Award in the United
States District Court for the District of Columbia.
18. The Award of Arbitration Board No. 282 provided
in Article III for a resolution of the crew consist dispute.
It established a procedure whereby either a carrier or Union
could serve upon the other written notice of proposed
2.2 3: PRP ee = woe mS
SEs gsgepeeoeoeecesz
17
changes in the rules governing the consist of train and yard
crews on the carriers’ lines. If the parties were unable to
agree upon such proposed changes, either side could sub-
mit the issue to a special board of adjustment whose award
would be final and binding upon the parties. Part C of
Article III of the Award prescribed national guidelines which
were to be followed by all special boards of adjustment in
making their awards. Under Part D of Article III of the
Award, employees in active service as of the effective date
of the Award were generally to be retained in such service
until they retired, were discharged for cause, or were other-
wise removed from employment by natural attrition.
19. The Award of Arbitration Board No. 282 became
effective on January 25, 1964. * * *
20. Pursuant to the provisions of Article III of the
Award of Arbitration Board No. 282, 96 crew consist
awards were rendered by special board of adjustment on
the individual railroads, including nine on the C&NW and
95 crew consist agreements were executed on individual
railroads, including two on the C&NW, thereby obviating
the need for arbitration in those cases. All these awards
and agreements resulted from notices by the carriers to
reduce the size of particular crews. The special board of
adjustment awards authorized the climination of 4,855 posi-
tions as unneeded, which was 87.3% of what the carriers
sought.
21. During the period of the Award of Arbitration Board
No. 282 President Luna of the BRT commenced new crew
consist negotiations on a multi-carrier basis with a number
of railroads in the eastern part of the United States. At
this time there were laws and administrative regulations,
sometimes called “full crew laws,” in several eastern states
which imposed even greater crew-size burdens upon the
nilroads than the BRT’s demands of “tone and two’”’ (one
conductor and two brakemen). * * * It was thought by
many of these roads, therefore, that relief—even though
limited—could only be achieved through the repeal of the
full crew laws.
18
22. For many years the rail unions, including the BRT,
had successfully worked to prevent repeal of the full crew
laws in these eastern states. * * * Nevertheless, on January
29, 1965, Mr. Luna negotiated for the BRT a multi-carrier
agreement with the eastern roads which (1) guaranteed to
the union a minimum crew consist of one conductor (or
foreman) and two brakemen (or helpers) in virtually all
classes of road and yard service; and (2) guaranteed to the
railroads that the union would immediately withdraw all
opposition to the repeal of existing full crew laws and
would not seek the enactment of any such new laws. This
agreement, commonly called the ““Luna-Saunders Agree-
ment” after Mr. Luna and the Chairman of the then
Pennsylvania Railroad, is effective until January 1, 1970,
and thereafter until changed by the parties under the Rail-
way Labor Act. * * * Shortly thereafter the New York
full crew law relating to train crews was repealed. * * *
23. Prior to January 25, 1966, when Award 282 expired,
the BRT began its campaign to roll back the 96 awards and
95 agreements made pursuant to Award 282. During 1965
the BRT served Section 6 notices, identical in substance,
on more than 80 carriers (not including, of course, those
eastern roads which were parties to the Luna-Saunders
Agreement). These notices proposed that effective January
26, 1966, the crew consist rules of the carriers provide that
in all classes of service there be a minimum crew consist of
one conductor and two brakemen or helpers. Thus, the
BRT’s notices were virtually identical to its original propo-
sals of 1960. Then in the fall of 1965 the Mediation Board,
at the BRT’s request, docketed for mediation the disputes
over the BRT’s notices on a large number of railroads.
24. In order to permit concurrent handling of the BRT
proposals and such proposals as the carriers would make
with respect to future crew consist rules, the carriers served
counter-notices upon the BRT in December of 1965. These
counter-notices proposed the elimination of all agreements,
rules, regulations, and practices providing for a stipulated
GE Fy ones eee na ee
19
number of trainmen, brakemen, or helpers on each crew
and proposed that management have the right to determine
the number of men to be used on such crews. These
counter-notices, and similar notices served by other car-
riers during December, 1965, invited the BRT to join in
the handling of the proposals of both the BRT and the
carriers “‘on a joint national basis” if agreements could not
be reached in local negotiations. However, in each instance
the BRT replied that it was unwilling to engage in-national
handling as to any phase of the dispute.
25. The BRT’s refusal to negotiate with respect to this
dispute on a concerted national basis violated a longstand-
ing custom and practice in railway labor-management rela-
tions of handling identical disputes involving a number of
carriers on such a basis. * * *
* * a . *
40. * * * Mr. Luna shortly after the enactment of Pub-
lic Law 88-108 announced the BRT’s new determination
to refuse future national handling of work rules disputes in
order to keep the BRT “in a position to use our economic
strength.” * * *
* * * * *
42. In late 1965 and early 1966, at the same time that
it was claiming that the crew consist rules should be
changed on a carrier-by-carrier basis pursuant to Section 6
of the Railway Labor Act, the BRT launched a second
assault on the awards and agreements made pursuant to
Award 282. In this connection the Brotherhood notified
the carriers that in its view the crew consist rules which
were in effect prior to Award 282 would automatically
revive upon the expiration of the Award in January of
1966. The BRT demanded that crew assignments that had
been abolished pursuant to the Award be immediately
restored. The carriers took the position that it was clear
from the purpose and history of P.L. 88-108 that Award
282 was not to be a mere interim measure and that rules
established pursuant to that Award were to continue in
ee
20
force until changed in accordance with the procedures of
the Railway Labor Act.
43. In order to seek a resolution of this disagreement,
on January 19, 1966, nearly 150 carriers, including the
C&NW, filed suit in the United States District Court for the
District of Columbia against the BRT and others for decla-
ratory and injunctive relief. In this suit the railroads con-
tended that the crew consist rules then in effect could not
be changed except in accordance with the procedures of
Section 6 of the Railway Labor Act. On March 3, 1966,
the District Court, by Judge Alexander Holtzoff, sustained
the carriers’ position in Akron & Barberton Belt RR. v.
Brotherhood of RR. Trainmen, 250 F. Supp. 691. The
Court ruled that Award 282 and the agreements and awards
made pursuant thereto created new work rules which
remained in effect after January 25, 1966, and that these
new rules could be changed only by the procedures pro-
vided in Section 6 of the Railway Labor Act. This ruling
was later affirmed by the United States Court of Appeals
for the District of Columbia Circuit, 385 F.2d 581 (1967),
and certiorari was denied by the Supreme Court, 390 U.S.
923 (1968).
44. As I have said, after 1963 the BRT absolutely
refused to participate in the national negotiation of the
crew consist dispute. In an effort to bring about national
handling of the crew consist issue, the National Railway
Labor Conference invoked the jurisdiction of the Mediation
Board with respect to all counter-notices served by the car-
riers during December, 1965. This invocation was made on
April 4, 1966, and the next day the Mediation Board in
effect denied the carriers’ request and directed them to
proceed to the local properties for the mediation of the
individual disputes.
45. Judgment was entered in the Akron litigation by the
District Court on April 6, 1966. At that time the Court
ruled that the parties’ “[nJotices of proposed changes in
crew-consist rules served pursuant to Section 6 of the Rail-
gt ae® am ae ee e688 ess «4 ¢ 7
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ar sSermomemrenktkontseantke
= 2
t
a 5
21
way Labor Act, between January 25, 1964, and January
25, 1966, . . . did not become effective under the Railway
Labor Act until January 26, 1966.” Nevertheless, the
Mediation Board treated the BRT’s prior invocation of
mediation as having been proper, and in April, 1966, the
Board proffered arbitration to four carriers, the Atlantic
Coast Line Railroad Company, the Boston & Main Corpora-
tion, the Missouri Pacific Railroad Company, and the Louis-
ville & Nashville Railroad Company.
46. On April 12, 1966, these four carriers filed a Motion
For Supplemental Relief in the Akron litigation. In that
motion the carriers requested an order declaring that the
crew consist rules could not be changed until the initial
confexences between the parties prescribed by Sections 5
and 6 of the Act were held after the expiration of Award
282 and until the other procedures of the Act were also
exhausted subsequent to such conferences. On May 31,
1966, the District Court granted the carriers’ motion. The
Court ruled that the notices of the parties were not effec-
tive until January 26, 1966; that until this time the parties
were under no obligation to confer; and that meetings held
before January 26th did not constitute “conferences” within
the meaning of Sections 5 and 6 of the Act. Therefore, the
Court concluded that neither side could resort to self-help;
that conferences should be commenced within a reasonable
time after the entry of the order; and that recourse to the
Mediation Board could not be had until conferences ful-
filling the requirements of Sections 5 and 6 of the Act were
held. Two days later, June 2nd, the Mediation Board
“urged the parties”’ to hold such conferences promptly and
advised that it was continuing the cases which had been
docketed before it.
47. As the dispute was considered in conference on the
different railroads following the Akron & Barberton Belt
litigation, the carriers again urged the BRT to agree to
national handling of the dispute, and again the same nega-
tive answers were given by the BRT on each railroad.
22
There was no question, of course, that the actual handling
of the dispute on the BRT’s side was national and that
Mr. Luna was directing the progress of the dispute himself
on a uniform basis on all carriers. Thus, on June 18, 1965,
Mr. Luna wrote all his general chairmen on individual roads
setting forth the BRT’s position as to the effect of the
expiration of Award 282, directing the service of the new
uniform Section 6 notices, and attaching the text of the
notices’ demand for a uniform one-and-two crew consist
rule. These, then, were the notices which were served
identically on each of the more than eighty carriers com-
mencing in June of 1965. When the carriers responded, on
July 9, 1965, Mr. Luna wrote his general chairmen again
and enclosed a uniform draft reply to be sent to all roads.
Another uniform reply to all the carriers was drafted and
sent to the general chairmen by Mr. Luna on October 5,
1965. When the carriers served their counter-notices in
December of 1965, Mr. Luna again dictated a uniform
response for the general chairmen in a letter to them on
December 28, 1965. Again, on January 6, January 14,
March 18, March 31, and June 9, 1966, Mr. Luna wrote to
the general chairmen on the individual railroads with the
text of identical letters to be sent out to all the carriers in
succeeding phases of the dispute. Thus, although Mr. Luna
professed to have come to the new determination that local
conditions required crew consist rules to be negotiated on
a carrier-by-carrier basis, the dispute continued to be itan-
dled in fact on a uniform, national basis.
48. On August 29 and 30, 1966, I met in Chicago with
Mr. Luna and with Mr. Leverett Edwards, Chairman of the
National Mediation Board, at Mr. Edwards’ suite in the
Blackstone Hotel, for the purpose of discussing possible
ways of resolving the dispute over the BRT and carrier
crew consist notices mentioned above. In particular, we
sought to determine whether there was any common ground
between the stated position of the BRT that these notices
were not an appropriate subject for national handling and
23
the position of the carriers that they were. During these
meetings, Mr. Edwards suggested, and Mr. Luna and I
orally agreed, without waiver of the position of either side
with respect to national versus local handling of the dispute,
that a series of “test” negotiations would be conducted
between representatives of six selected carriers and the
NRLC on the one hand, and those of the BRT on the other,
in order to see whether any principles or guidelines might
emerge which could serve as a pattern for agreements on
other railroads or for a national agreement to settle the
entire crew consist dispute. It was agreed that these nego-
tiations would be held at the headquarters of each railroad
selected, would be conducted by a mediator to be assigned
to each railroad by the National Mediation Board, and
would be attended by representatives of each railroad, the
NRLC, and the BRT. It was agreed that Mr. Luna, Mr.
Edwards, and I would meet again at the conclusion of these
“test” negotiations to discuss whether anything had been
accomplished which would point the way to a settlement
of the entire crew consist dispute, and that, until this pro-
cedure was completed, the National Mediation Board would
not terminate its services on the three railroads as to which
proffers of arbitration had been made by the Board. It
was agreed that these “test” negotiations would begin on
September 13 on the following railroads: The Boston &
Maine Corp., Atlantic Coast Line RR., Southern Ry. Sys-
tem, Chesapeake & Ohio Ry., Missouri Pacific Lines, and
Union Pacific RR.
* * * * *
58. Although the BRT pursued a variety of tactics in
the different negotiations, certain common patterns emerged
from all the discussions. The BRT uniformly refused to
recede from the sweeping proposal of a minimum crew con-
sist of one conductor and two brakemen, although the car-
riers were willing to discuss areas of compromise. In gen-
eral, the BRT refused even to discuss the issues with respect
to mainline through freight assignments, although the agree-
ment between Messrs. Luna and Edwards and me expressly
24
contemplated that all the issues raised by the parties’ Sec-
tion 6 notices would be discussed, and the notices on both
sides included proposals affecting mainline through freight
assignments. The BRT showed, by its refusal to consider
the impact of the parties’ proposals upon particular crews
on each road, that the BRT was seeking a uniform national
crew consist rule, despite assertions on other occasions that
the issue of crew consist is essentially local. At no time
was the BRT willing to discuss the possible terms of national
guidelines to be applied in the settlement of the crew con-
sist dispute, although Messrs. Luna and Edwards and I had
clearly agreed that that would be the principal purpose of
these test negotiations. The BRT rebuffed all efforts by
the carriers to conduct the negotiations in terms of con-
sidering what revision, if any, might justifiably be made in
the procedures and guidelines established by Award 282,
or in the crew consists specified in agreements or special
board awards made pursuant to Award 282. That the goal
of the BRT was to abolish everything that was accomplished
under Award 282 was shown by the consistent refusal to
agree that the crew consist agreements and special board
awards might be maintained, by the failure to advance any
evidence to show that conditions since the making of these
agreements and awards have changed in such manner as to
justify revision of the consist of crews affected by the
Award, and by such extreme recalcitrance as unwillingness
to consider even a date which corresponded to the effective
‘date of Award 282.
59. After the negotiations on the six carriers were
recessed, there remained the last step of the procedure
agreed upon by Mr. Luna, Mr. Edwards, and me in our
Chicago meetings of August 29-30—the post-negotiation
meeting between the three of us to discuss the results of
the negotiations and the possible development of guide-
lines. * * * Mr. Edwards then told me that he had no
choice but to terminate the services of the NMB on the
three railroads, Atlantic Coast Line, Boston & Maine, and
25
Des Moines Union; and on October 4 the NMB did notify
these carriers that its services were terminated.
* * a ~ *
61. After the NMB had terminated its services in the
crew consist disputes involving the Atlantic Coast Line,
Boston and Maine, and Des Moines Union, these three car-
riers on November 1, 1966, filed suit in the District of
Columbia for declaratory and injunctive relief against the
BRT. Atlantic Coast Line RR., Et Al. v. Brotherhood of
RR. Trainmen, Civil Action No. 2908-66 (D. D.C.). These
plaintiffs alleged in part that the BRT had failed to bargain
in good faith and in accordance with the Railway Labor
Act by refusing to permit national handling of the crew
consist dispute. * * *
62. The BRT took the position in the Atlantic Coast
Line case that local handling of the crew consist issue was
essential because of the need for local rules to meet condi-
tions prevailing upon each individual railroad, and also
because conditions varied greatly from carrier to carrier and
even from location to location on a single railroad. * * *
63. The District Court rendered its opinion in Atlantic
Coast Line case on January 16, 1967. Atlantic Coast Line
RR. v. Brotherhood of RR. Trainmen, 262 F. Supp. 177.
It held that the Railway Labor Act required the Brother-
hood to participate in national handling of the 1966 phase
of the crew consist dispute and that, because the Brother-
hood had refused to do so, it had not exhausted the pro-
cedures of the Act and could not engage in the threatened
strikes. 262 F. Supp. at 189. * * *
64. The BRT appealed this decision to the District of
Columbia Circuit, and that Court on September 6, 1967,
reversed the trial court. 383 F.2d 225. * * * The contro-
versy Over national handling ended finally on January 15,
1968, when the Supreme Court denied certiorari. 389 U.S.
1047.
65. Shortly thereafter, in early February, 1968, the
BRT struck the Atlantic Coast Line, the Missouri Pacific,
26
and the Texas and Pacific railroads, whose crew consist dis-
pute with the BRT had been released from mediation. Con-
sequently, on February 9, 1968, these three roads and the
Southern Railroad, whose dispute with the BRT had also
been released by the Mediation Board, signed an agreement
with the BRT in Jacksonville, Florida, to settle the crew
consist dispute on those carriers. The “Jacksonville Agree-
ment,” as it has been called, called for immediate restora-
tion of 50% of the crews which these carriers had reduced
pursuant to the Award of Arbitration Board No. 282, and
for further immediate negotiation over the remaining 50%.
If within 34 days the parties failed to agree on a disposi-
tion of the remaining 50%, the parties were again relegated
to self-help—that is, the BRT could strike, and the carriers
could implement their proposed rules. The ultimate result
was the restoration of all but a handful of crews on these
carriers to a one-and-two basis.
66. In the wake of the Jacksonville settlement, agree-
ments were signed on a number of other carriers. As I had
by that time retired as Chairman of the National Railway
Labor Conference, I cannot speak with personal knowledge
respecting the negotiations that led to these agreements,
except to the extent indicated in the following paragraphs
of this Affidavit. My understanding, however, is that the
agreements cn these other carriers were substantially iden-
tical to the Jacksonville agreements—that is, the pattern was
the casting aside of the scores of arbitration awards and
agreements made pursuant to P.L. 88-108 and the restora-
tion of all but a token number of crews to a one-and-one
basis. If that is so, as I believe it to be, then, based upon
my lengthy experience in these matters, my firm opinion
is that these carriers entered into such agreements not out
of conviction that they represented a just resolution of the
controversies, but out of a fear of exercise by the BRT of
the “‘whipsaw”’ strike tactics it had employed against the
carriers that entered into the Jacksonville agreement.
27
67. Some railroads resisted to the point of strike. Dut“
ing 1968 the National Board released the crew consist dis-
putes with the BRT on three carriers—the Chicago Belt, ‘he
[linois Central, and the Louisville & Nashville. The BRT
thereupon again put into play its “whipsaw” tactics. In
July the BRT struck the Chicago Belt, and in November it
struck the Louisville & Nashville, both strikes ending only
with the appointment of Emergency Board No. 172 by
President Johnson on November 6th. When Emergency
Board No. 172 held hearings in Washington, I testified on
behalf of the three carrier parties, and I later assisted the
carriers in mediation sessions with the BRT conducted by
the members of the Emergency Board after the hearings
were closed.
68. The Report of Emergency Board No. 172 urged the
parties to resume bargaining over their respective crew con-
sist proposals. As prior public agencies had done—the
Presidential Railroad Commission, Emergency Board No.
154, Arbitration Board No. 282—this Board recommended
the adoption of overall guidelines to govern proper crew
size determinations and then the application of those guide-
lines on a local basis to particular crew assignments. * * *
69. On December 23, 1968, shortly after Emergency
Board No. 172 had issued its Repcrt, BRT President Luna
and I met at my request at the Union League Club in
Chicago. We discussed our previous exploratory talks in
Washington after the close of hearings by Emergency Board
No. 172, but we could not make any progress. Later in
our discussion Mr. Luna stated unequivocally that a settle-
ment of the crew consist dispute on these carriers could
not be effected unless the railroads accepted the conditions
of the so-called Jacksonville settlement. I told him in
response that I did not think that that position met the
test of good faith bargaining, especially in the light of his
statements made on many occasions that any settlement
arrived at locally which his local people could live with
would be acceptable to him. I then asked Mr. Luna if I
28
was free to tell the three carriers that his position was that
any settlement which did not conform in almost exact
detail to the Jacksonville settlement would be unsatisfac-
tory to him and that he would not permit his local repre-
sentatives to settle on that basis. Mr. Luna said that I was
at liberty to tell the three roads that that was his position.
70. Thereafter, on January 13, 1969, the BRT struck
the Louisville & Nashville again without notice. Although
the strike was temporarily restrained by the United States
District Court for the Middle District of Tennessee, on
February 10, 1969, the railroad signed an interim agree- _
ment similar to the first phase of the Jacksonville pattern
agreement which I have mentioned above, and on May 26, —
1969, a final crew consist agreement which was also similar
to the Jacksonville agreement. On or about April 3, 1969,
a final agreement was made on the Chicago Belt which con-
formed to the Jacksonville Agreement. Then on April 8,
1969, the BRT also struck the Illinois Central without
notice; and on April 13 this carrier too signed an interim |
agreement similar to the first phase of the Jacksonville pat-
tern.
{Subscription and notarial certificate omitted in printing]
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
[Caption omitted in printing]
AFFIDAVIT OF JAMES R. WOLFE ON BEHALF OF
CHICAGO AND NORTH WESTERN RAILWAY COMPANY
James R. Wolfe, of full age, being duly sworn according
to law, upon his oath deposes and says:
1. I am the Vice President - Labor Relations of the
Chicago and North Western Railway Company * * *
2. The affidavit of my father, Mr. James E. Wolfe, for-
merly the Chairman of the NRLC, on behalf of the C&ANW
recites the general history of the crew consist dispute since
29
its inception in the 1950’s. (Prior to that date, trains in
this country were generally manned by an “engine crew”
consisting of an engineer and a fireman, and a “train crew”
consisting of a conductor and two brakemen.) My affidavit
intends to set out the facts relating to the crew consist dis-
pute, i.e., the dispute relating to the size of “train crews”’,
with the former Brotherhood of Railroad Trainmen (here-
inafter referred to as the “BRT”), and its successor, the
United Transportation Union (hereinafter referred to as the
“UTU”), as the dispute has developed on the C&NW since
the rendition of the Award of Arbitration Board No. 282
in the fall of 1963. Prior to that time the C&NW had
always been a part of the national dispute with the BRT
and other unions over crew consist, had served the Novem-
ber, 1959, carrier notices under Section 6 of the Railway
Labor Act proposing to commit the issue of train crew size
to managerial discretion, had been served with the BRT’s
and other unions’ Section 6 notices of September, 1960,
proposing a uniform national rule requiring a minimum
train crew of one conductor and two brakemen on all
trains, had participated in the proceedings before the
Presidential Railroad Commission and Emergency Board No.
154, and was a party before Arbitration Board No. 282.
3. As is explained in Paragraph 18 of the Affidavit of
James E. Wolfe, Section III of the Award of Arbitration
Board No. 282 relating to crew consist prescribed a national
procedure for both carriers and unions to follow for chang-
ing the size of existing train crews on individual railroads
and moreover laid down national guidelines to be followed
locally in determining the appropriate size of particular
crews on individual railroads. Pursuant to the Award, a
party desiring a change in the number of men on a given
crew or on a number of crews could serve written notice
on the other party designating the crews sought to be
changed. The Award then required the parties to negotiate
on the matter promptly. If they agreed to increase or
decrease the number of men in the train crew, that ended
the controversy. (Award § III(A)). If agreement failed,
30
the party proposing the change could submit the issue to
binding arbitration by a special board of adjustment created
on that railroad. (Award § III (B)).
4. After the rendition of the Award of Arbitration
Board No. 282 in November, 1963, and before it became
effective in January, 1964, the C&NW reviewed and studied
the work of its train crews in both road and yard service
to determine whether the Award’s guidelines authorized
changes in crew size. The C&NW conducted studies in
each of the individual districts into which the carrier is
divided for purposes of labor relations matters. Thereafter
the carrier served notices under Section III(A) of the Award
of Arbitration Board No. 282 upon those organizations
which represented brakemen and helpers in road and yard
service on the C&NW, i.e., the BRT in most instances and
the Switchmen’s Union of North America (“SUNA”) in
one. (Both the BRT and the SUNA have since merged
with two other labor organizations into the UTU, but there
has been no significant change in the personnel of these
organizations involved in this dispute.) By these notices
the carrier generally asked that train crew reductions be
made in all yard crews from a minimum consist of one con-
ductor (generally denominated “foreman” when in yard
service) and two brakemen (“‘helpers”’ in yard service) (i.e.,
“1 and 2’’) to a consist of one conductor and one brake-
man (i.e., “1 and 1”’). In branch line road service where
Award 282 also established procedures for crew changes,
the carrier’s notices generally proposed reductions from a
crew of “1 and 3” to a crew of “1 and 1”, or from a crew
of “1 and 2” to a crew of “1 and 1.” The negotiations
which followed between the C&NW and the BRT and
SUNA with some exceptions failed to result in agreements
to dispose of the crew consist dispute.
5. Consequently, following the breakdown of negotia-
tions over the C&NW crew consist notices in the carrier’s
several districts, a number of special boards of adjustment
were created to arbitrate the dispute pursuant to the pro-
es. i. a a ee eee a ee ie “eee
> *» = — cA
—_— as 7 fF &
Sc fo we :t;woe se ss Bp
31
cedures established by Section III(B) of Award 282. These
special boards, composed of one carrier member, one union
member, and a neutral, held hearings for the taking of oral
and written evidence, considered written briefs, and neard
oral argument. Much attention was paid by both the par-
ties and the neutral to the issues of safety and work bur-
den—whether the carrier’s proposed crew reductions would
result in unsafe working conditions for the men or place an
undue work burden upon them. In nearly all cases, the
special boards resolved these issues of safety and work bur-
den, along with the other guidelines specified by the Award
of Board No. 282, in favor of permitting the reductions
sought by the carrier. * * *
6. In three instances the carrier’s crew reduction propo-
sals were settled by agreement with the BRT * * *.
In addition, the Chicago Great Western Railway Company,
which has since been merged into the C&NW, made a crew
consist agreement pursuant to the procedures of Award No.
282 with the BRT on August 6, 1964. * * *.
7. The Affidavit of James E. Wolfe has described in gen-
eral the efforts of the BRT to undo the accomplishments
of both the Award of Arbitration Board No. 282 and the
special board of adjustment awards and crew consist agree-
ments which followed. The C&NW was not excepted. On
July 3, 6, and 7, 1965, the BRT served upon the C&ANW
and upon the former Chicago Great Western the union’s
new Section 6 notices which proposed a uniform rule
requiring a crew consist of “‘] and 2” on virtually all road
and yard crews on the carriers’ systems. On some road
crew assignments the BRT asked for a consist of “1 and
3.” Copies of the notices served by the BRT upon the
“C&NW Proper” District on July 6, 1965, are attached
hereto as Exhibits A (notice relating to road service) and
B (notice relating to yard service). These demands, of
course, if agreed to by the carrier, would nullify completely
the manning reductions—roughly 200 jobs—which the above-
mentioned awards and agreements accomplished.
32
8. When the nation’s rail carriers took the position that
the BRT’s notices were barred by the Award of Arbitration
Board No. 282, the union invoked the services of the
National Mediation Board. The Board docketed the dis-
putes over the notices served by the BRT on the then four
districts of the CRNW on October 4, 1965, as NMB Case
Nos. A-7523 (“C&NW Proper” District), A-7524 (“M&StL”
District), A-7525 (“CStPM&O” District), and A-7526
(“L&M” District). Subsequently the dispute over the notice
served by the BRT on the former Chicago Great Western
was docketed by the NMB as Case No. A-7645. Neverthe-
less, no conferences or mediation sessions were held on any
of these BRT notices in 1965.
9. On or about December 24, 1965, most of the railroad
industry, including the C&NW as to its several districts,
served the national Section 6 notices upon the BRT. With
these notices the C&NW proposed the elimination of all
existing crew consist rules and the adoption of a new rule
which would commit the matter of crew size to managerial
discretion, i.e., the same proposals which the railroad indus-
try served in 1959, and which were finally disposed of by
the Award of Board No. 282. A copy of the C&NW’s
notice served on the ““C&NW Proper”’ District is attached
hereto as Exhibit C.
10. The carrier’s Section 6 notice of December 24,
1965, also proposed that if the parties could not settle the
crew consist dispute in initial conferences on the property
they would commit the dispute on the C&NW, along with
those pending on the other railroads, to national handling
in accordance with established practices in the railroad
industry. However, the BRT responded on December 12,
1965, by agreeing to meet in conference on the carrier's
notices, but refusing to engage in national handling. * * *
11. When the parties met in conference on January 18,
1966, they did not discuss the merits of the crew consist
dispute. Instead the BRT insisted that the purpose of the
meeting was only to discuss the carrier’s notices and that
a 32S
33
the union would refuse to handle the whole crew consist
dispute on this railroad together. * * * The BRT also again
refused to enter into national handling of any phase of the
crew consist dispute * * *.
12. The carrier’s next conference on the crew consist
issue was held only with the General Chairman of the car-
rier’s “Milwaukee Industrial” District on March 28, 1966,
again without discussion of the merits. BRT General Chair-
man Richardson mentioned the Luna-Saunders Agreement
as “setting a precedent” for disposition of the entire dis-
pute, thereby suggesting that the dispute which the BRT
had previously said could be handled only on a local basis
should nevertheless be resolved by adopting a uniform
national rule of “1 and 2.”
13. The carrier met with the representatives of the BRT
again on June 28, 1966, at which time BRT General Chair-
man Spiegel (““C&NW Proper” District) reiterated the union’s
position that the
“. . carrier’s notice and the organization’s notice are
two separate issues and will be handled separately.”
When the carrier representative stated that he understood
the purpose of the conference to be discussion of the
notices and proposals of both parties, Mr. Spiegel again
refused to discuss the carrier’s demands concurrently with
the BRT’s. Then Mr. Spiegel announced that he was free
to make an agreement himself on this railroad, indicating
that he was not bound by any national determination of a
settlement, and in this regard he stated that he was not just
“going through the motions.”” However, in nearly the next
breath Mr. Spiegel urged upon the carrier the adoption of
the Luna-Saunders Agreement and its uniform “] and 2”
tule. The parties then recessed with an informal agreement
to make separate studies of crew consist needs on individual
jobs.
14. In March of 1968, the C&NW decided to try a new
approach in an effort to arrive at a compromise. Basically,
that approach involved offering to share with the employees
34
the savings accomplished by the elimination of wasteful
labor costs. Accordingly, the C&NW proposed that the
parties enter into an agreement under which the basic daily
rate of brakemen working on “] and 1” crews would be
increased by $3.45. This would have meant, on the average,
an annual wage increase of around $1,000 for each brake-
man working on such crews. The union, however, promptly
and unequivocally refused to bargain over that proposal and
vigorously protested against any further discussion along
those lines. On March 14, 1968, union General Chairman
Maloney wrote to the C&NW and stated:
“We are not willing to enter into negotiations on such
a proposal, and you are hereby advised that same is
not acceptable.”
The C&NW therefore, in order not to introduce further
tension into the negotiations, refrained from pressing its
proposal. Later, I learned that in strike injunction litigation
brought by another railroad, the UTU’s President, Mr.
Charles Luna, testified that the union’s negotiators were
bound by a UTU convention action not to discuss any car-
rier proposal to compromise the dispute on any basis that
would include the payment of additional wages to
employees. Thus, he said on cross-examination:
“Q. Mr. Luna, you testified your general chair-
men are perfectly free to make whatever agreement
they wish on the L&N, is that right?
“A. With the exception of taking money. We
have convention action, which is the governing body
of this organization. That is against selling a man’s
job for x number of dollars” (Transcript of prelim-
inary injunction hearing, p. 350, Louisville & Nash-
ville RR. v. United Transportation Union, Civil
Action No. 5784 (M.D. Tenn. 1969)).
Moreover, Mr. Luna, in statements printed in the union’s
newspaper, the 7rainmen News, proclaimed his unalterable
opposition to negotiations involving consideration of a com-
promise based upon increased compensation—compensation
that he called “Judas Money.” (Trainmen News, vol. 22,
35
No. 13, p. 1 (March 23, 1968); op. cit., vol. 22, No. 14, p. 1
(March 30, 1968)).
15. The parties did not meet again on crew consist until
March of 1968 when BRT President Charles Luna and
C&NW Chairman Ben W. Heineman and President Larry S.
Provo discussed the crew consist dispute briefly. At that
time Mr. Luna argued that “1 and 2” crews were more eco-
nomical than smaller crews and that the carrier was actually
losing money by refusing the union’s demands for larger
crews. Messrs. Heineman and Provo offered to study the
economics of crew size on this railroad and furnish the
results to the BRT. When completed this study showed
clearly the carrier’s savings by operating with small crews.
On May 16, 1968, pursuant to an agreement between the
BRT’s C&NW General Chairman Maloney and me that we
would make a real effort to sit down and settle the crew
consist dispute, other carrier representatives and I met with
General Chairman Maloney on the “C&NW Proper”’ District,
the largest of the carrier’s districts. The results of the car-
rier’s economic studies were first handed to Mr. Maloney,
together with an offer to discuss them and answer ques-
tions about them. Mr. Maloney did not then look at the
studies, and no representative of the BRT ever mentioned
them again except upon one later occasion when Mr.
Maloney simply remarked that he did not understand them.
In answer to that remark we offered to explain the study,
but Mr. Maloney never indicated a willingness that we do
so. During most of the conference of May 16 we identi-
fied all the existing jobs which were being operated on the
“C&NW Proper” District with “1 and 1” crews and then
agreed that at subsequent meetings we would study yard
jobs first, then road jobs. Nevertheless, before recessing
Mr. Maloney remarked that all Chicago Terminal jobs
would have to be operated with “1 and 2” crews.
16. At the next three conferences the parties considered
yard jobs. On June 12, 1968, Mr. Maloney discussed a
number of yard assignments on the “C&NW Proper” Dis-
trict and commented on some jobs which in his opinion
36
would have to be restored and others which could remain
at “1 and 1.” He conceded that 4 or 5 jobs could continue
to be worked with one helper. Finally, he insisted again
that all Chicago Terminal crews must be worked with “|
and 2,” and that “there was not even any sense in discuss-
ing them”. More discussion of yard assignments followed
at the conference of June 20, 1968, at the conclusion of
which Mr. Maloney stated that of some 80 yard jobs then
being operated in the “C&NW Proper” District with “1 and
1” crews only 6 could continue with “1 and 1,” and of
these two were not then in existence but had been abolished
earlier. At the third meeting on July 17, 1968, the carrier
representatives reviewed our notes on about one-half the
yard assignments on the “C&NW Proper”’ District and dis-
cussed reasons why these assignments could be operated
safely and efficiently with small crews. The remainder were
tu be discussed at our next meeting.
17. At the conference on August 6, 1968, Mr. Maloney
was joined by BRT Vice President Francis Tuffley. After
we had finished discussing ““C&NW Proper” District yard
assignments on behalf of the carrier, I said that many road
assignments on branch lines in that district ought to remain
“1 and 1” and that also many mainline jobs should be
reduced to “1 and 1.”” Mr. Tuffley, however, did not answer
me but, rather, put on the table a number of crew con-
sist agreements which the BRT had entered into with other
railroads. In the conversation that followed Mr. Maloney
indicated that what was “‘good enough for those railroads”
should be good enough for the C&NW. Mr. Tuffley then
asked me how my railroad could justify a different agree-
ment. When I said that I could not follow these other
agreements since the C&NW had proved the effectiveness
of “‘1 and 1” crews by using them continuously for four
years, the BRT representatives began to pack up their
papers preparatory to leaving the room. Mr. Tuffley said
it was clear that we were “getting nowhere,” that the
Mediation Board ought to be brought in, and that the
C&NW quite clearly did not intend to make a settlement
SES
hn ae an an
—men fe maiptreaaiaeeeo@&k@q@egtit Gs &
37
like those all the other railroads had made. I again pro-
tested that we had not discussed any of the road jobs in
the “C&NW Proper” District which were now operating
with “1 and 1” crews, nor had we discussed any of the “1
and 2” crews which the carrier wished to reduce pursuant
to our Section 6 notice. The meeting ended there.
18. On the following day, August 7, 1968, Mr. Maloney
called me to agree that we ought to discuss road jobs in his
district and that he would later call for another conference
in three or four weeks. Mr. Maloney’s agreement that the
road jobs should be discussed and to postpone requesting
the services of the Mediation Board coincided with the BRT
strike of the Chicago Belt over crew-consist. Mr. Maloney
did not call for another conference date, and I did not dis-
cuss crew consist with the BRT again until brief conversa-
tions with Mr. Maloney took place in October and in Jan-
uary when we agreed only to defer our discussions. Then
on April 14, 1969, a day after the Illinois Central Railroad
Company had entered into a crew consist agreement with
the union to settle a strike on that carrier, Mr. Maloney
called to tell me that BRT (now UTU) President Luna “‘was
after [him] to get moving on crew consist.” I agreed to
another conference for April 22, 1969.
19. Much of the conference on April 22, 1969, was
devoted to a UTU demand concerning changes in rules in
the carrier’s suburban service, the union chiefly wanting the
carrier to agree to a five-day work week. However, the sub-
ject of crew consist was also discussed. The quotations set .
out below are taken from my conference notes; and if they
are not exactly verbatim, they are at a minimum substan-
tially accurate.
20. Mr. Maloney for the UTU first stated that his “hands
were not tied” on the crew consist issue and that he wanted
to try to settle both that dispute and the one over subur-
ban service together. Later, however, he added that any
settlement along those lines would require the approval of
UTU national Vice President Tuffley, since the Grand Lodge
38
was “calling the shots” on crew consist. Then when asked
whether he thought all “1 and 1” jobs should be restored,
the following discussion took place:
“[Maloney] No, I believe that the crew consist agree-
ments which have come through on other railroads
have shown between 70% and 80% of the jobs
returned to service and I would think around 72%
of the jobs should be restored.
“{Wolfe] I assume from what you say, that you are
not agreeable to any deviation from those national
percentages in disposing of our crew consist notices.
“[Maloney] That’s right. I am going to have to get
the national average of jobs returned to service.”
Mr. Maloney then proposed that a certain number of these
“1 and 1” jobs might not be restored in return for carrier
concessions in the suburban service dispute:
“( Wolfe] Do you then mean that we could restore
that percentage of jobs and then again remove some
of those jobs because of the suburban service Five
Day Work Week?
“(Maloney] No, I must dispose of the entire crew
consist issue once only. The original disposition
must take into account that certain jobs are not
restored and that a suburban service Five Day Work
Week Agreement will be placed in effect instead. A
somewhat similar agreement was made on the L&N
where the crew consist issue was used to resolve
other local bargaining problems on the property.”
Later, there was this exchange:
“‘[Maloney] We want [enumerates demands in subur-
ban service]. [In return] we will yield on the num-
ber of crew consist jobs returned in the Chicago area
sufficient to cover all this cost.
“{ Wolfe] What about the matter of crew consist in
road service? We haven’t talked about that yet.
“{Maloney] The general trend of the agreements
around the country has been that road service will
be manned one and two.
39
“(Wolfe] You mean you don’t want to talk about
road service?
“(Maloney] No, except in the Chicago area.
““
“[Wolfe] How are we going to settle the road serv-
ice subject?
“[Maloney] We will have to have one and two on
these jobs. My proposal is that all jobs on the road
be manned one and two, except in the Chicago area.
“(Wolfe] What about our proposal on main line way
freights?
“[Maloney] This has been set aside in other han-
dling.
“{Wolfe] Then you are not willing to talk about
crew consist on the road, except in the Chicago area?
“{Maloney] That is right, except in Chicago.”
21. At the parties next conference on April 30, 1969,
Mr. Maloney started off by saying:
“[Maloney] I will be very candid. I was low man
on the totem pole on crew consist on the main line
railroads. IC [Illinois Central] and C&NW were the
last, and it was decided they should not both be
tackled at once. IC was first. Now that the IC has
settled I am being questioned by Grand Lodge Offi-
cers on where I stand. I can only get by so long,
and it will soon be necessary to get a mediator.
Grand Lodge officers tell me I am first-out to settle
this or get a mediator. I don’t believe we will
encounter any difficulty with other General Chair-
men [having them come in to the discussions]
because we are not going to deviate from the
national average.”
After discussion on a range of subjects involving the “C&NW
Proper” District—but not individual jobs—Mr. Maloney said:
“. . | don’t believe it will be too difficult to reach
agreement. This file should be enough.
“(Wolfe] What is in that file?
40
“[Maloney] It contains all of the crew consist
agreements in the country. The percentages estab-
lished will have to be followed here. You didn’t
— I would agree on lower percentages here, did
you?
“ee
.
“[Maloney] The pressure on me to make a crew con-
sist agreement is very strong.”
The meeting ended after a discussion of other unrelated
matters.
22. The next conference, on May 9, 1969, was attended
by UTU (formerly BRT) general chairmen for the “C&NW
Proper,” “L&M,” “M&StL,” and “CStPM&O”’ Districts.
This conference therefore represented the first time since
the prefatory meetings of January 18, 1966, and June 28,
1966, that union representatives from the “CStPM&O,”
“M&StL,” and “L&M” Districts had conferred with the car-
tier on crew consist. Mr. Maloney stated that the C&NW
was the last railroad to settle with the UTU because the
union recognized that it could not strike both the Illinois
Central and the C&NW at the same time. Now he said, —
“Charlie” Luna was chaffing at the bit. Maloney next
stated it was not necessary for him to discuss manning
needs on individual jobs: he had discussed ““C&NW Proper”
yard jobs informally with the C&NW, and there were plenty
of precedents now. General Chairman Cardinal represent-
ing the “CStPM&O” District then said that he could see no
sense “sparring” around, that it would be “ridiculous” for
him to agree to anything different from the crew consist
agreements on the Milwaukee Road and the Great Northem
railroads where the men work side-by-side with C&NW
employees in certain terminals. Mr. Maloney stated that
if he entered into an agreement restoring only 40% of
the present “1 and 1” jobs he “would be in trouble in
Cleveland.” He also said that if the carrier and the
union considered and discussed all the individual jobs
involved in this dispute they “would be [there] until next
_ ——
41
stmas.” Mr. Maloney then withdrew the offer to
mpt to settle crew consist in connection with a settle-
t on suburban service. I later stated that while Mr.
mney and I had discussed all the yard jobs, we hadn’t
ussed the road jobs. Mr. Maloney replied first that all
road jobs would have to be restored to “1 and 2,”
pt pile drivers (a very small number of jobs) and sec-
, that consideration of the “1 and 1” road jobs would
-a long time and that he wouldn’t agree to a job-by-
study on them. Later he stated that he did not want
e pinned down on what he will insist on in road serv-
I finally attempted to describe Mr. Maloney’s position
lows:
“You do not want to go over the road assignments
on a job-by-job basis, and you expect that all of
them must be restored because of the IC and L&N
agreements.”
Maloney responded by saying that he expected all road
to be restored, not because of the IC or L&N, but
use of productivity. Then he added, however, “‘All of
others have gotten together and why can’t we?”’ There
no discussion or even a listing during this conference
dividual jobs on the “L&M,” “M&StL,” or “CStPM&O”
ricts, although I advised the union representatives that
should not terminate on-the-property negotiations until
issions for the whole C&NW system were complete.
3. The conference of the morning of May 15, 1969,
held with General Chairman Cardinal of the ““CStPM&O”
rict only. The parties simply identified the jobs now
king “‘1 and 1” without any discussion of their man-
requirements. Then Mr. Cardinal stated positively that
he jobs so identified had to be restored to “‘l and 2,”
iting out to me that the Milwaukee Road and the Great
thern had restored all their crews. I asked if Mr. Cardi-
meant that all the “1 and 1” jobs on his district had to
stored to “1 and 2,” not because the men were needed,
because other railroads put them back. Mr. Cardinal
replied that he wasn’t saying just that, but a second
42
later he answered that maybe he was saying just that. When
I then asked if Mr. Cardinal thought it would be a “waste
of time” to discuss all the jobs, he answered that, to be
honest, he thought it was. Nevertheless, I proceeded to
to review some yard jobs in the “CStPM&O” District, but
at the end of that review Mr. Cardinal announced that he
wanted all jobs restored to “1 and 2” and that he must
have them restored because, in his words, “the other rail-
roads have put the men back.” When asked again if he
wanted to discuss a particular set of jobs he refused, reply-
ing that he wanted them all restored. Later when | argued
that the operational needs of the railroad did not justify “1
and 2” crews, Mr. Cardinal answered that the jobs had to
be restored no matter and added: “Why kid ourselves?” |
finally referred to some road jobs in the “CStPM&O” Dis-
trict, and Mr. Cardinal refused to discuss the manning
requirements on any. At one point he said the union
required all the jobs restored in the Twin Cities area in view
of the Milwaukee Road and Great Northern settlements.
24. The conference of the afternoon of May 15, 1969,
was attended only by UTU General Chairman Stahley of
the “Chicago Great Western” District which represented the
first time that a union representative had met with the
C&NW to confer on the crew consist dispute on that dis-
trict. After much general background discussion, we merely
identified without any discussion all the “‘1 and 1” jobs in
the ““CGW”’ District (which were all the jobs in that district
with certain exceptions at Oelwein Yard and some main
line assignments). Although Mr. Stahley at first indicated
a willingness to discuss individual jobs, he then excluded
those at the Kansas City Missouri terminal where, in his
words, “the agreements of the Milwaukee Road, Kansas
City Southern Railway, and others had to be followed.”
When I protested, Mr. Stahley replied that those agreements
were the only guidelines he could think of. Moreover, he
further stated that UTU Vice President Tuffley had
instructed him that the C&NW had to conform to the same
disposition reached on other railroads. Thereupon Mr.
43
Stahley conceded that ‘as a practical matter” he could “not
agree to anything else” and declined to enter a job-by-job
discussion until he learned whether or not the dispute on
his district (the ““CGW”’ District) would be included in
mediation sessions which the Mediation Board had
announced were forthcoming.
25. The conference of May 15, 1969, marked the end
of the on-the-property conferences. During those negotia-
tions, the union at least listened to the carrier’s position
(although their representatives always emphasized that
eventually any agreement had to conform to the national
pattern) relating to individual yard jobs in the “C&NW
Proper” District, but for yard crews in the four other dis-
tricts and for road jobs in all C&NW Districts, the union
refused to even hear a presentation of the carrier’s position.
In fact, although the union representative of the “C&NW
Proper”’ District met with the carrier a total of nine times
(January 18 and June 28, 1966; June 12, June 20, July 17
and August 8, 1968; and April 22, April 30 and May 9,
1969) during which meetings the parties discussed yard
jobs in that district but not road jobs, meetings with repre-
sentatives of the other districts on the C&NW system were
only perfunctory: (1) the General Chairmen of the
“M&StL” and “L&M”’ Districts appeared at the prefatory
meetings of January 18 and June 28, 1966, when proce-
dures were discussed and at the general meeting of May 9,
1969, but at no time did they discuss the manning require-
ments of the individual jobs on their districts or, for that
matter, even listen to a presentation of the carrier’s posi-
tion on those jobs, (2) the General Chairman of the
“CStPM&O” District also appeared at the prefatory meet-
ings of January 18 and June 28, 1966, and the general
meeting of June 9, 1969, and additionally at a meeting on
the morning of May 15, 1969, but the only reference to
individual jobs on the “CStPM&O”’ District occurred at the
May 15 morning meeting when the parties identified the
jobs involved but did not discuss their manning require-
ments, and (3) the General Chairman of the “CGW”’ Dis-
44
trict appeared only once, on the afternoon of May 15,
1969, at which time the carrier only listed the jobs involved
but did not have time to even present its position on man-
ning requirements for those jobs.
26. Mediation under the auspices of the National Media-
tion Board commenced on June 2, 1969, with the parties
meeting separately with the mediator. When the parties
met on June 3, 1969, I pressed for a recess in mediation in
order to give the carrier (and the UTU if it wished) time
to prepare studies. My proposal met with resistence; and
I was prompted to ask the UTU representatives what con- .
crete evidence they had on the question of whether or not
additional men were needed on crews. General Chairman
Maloney responded in substance as follows:
** .. [I]n the country as a whole it can be seen what
happened. On one railroad 600 jobs were worked
one and one and all are back on [i.e., being operated
at “1 and 2”), and on another railroad 450 were off
and all but eight are back on.... If we do this
study, where will we end up? . . . No matter how
many time-studies may have been made, other rail-
roads have been settling for an average of 90% [of
the crews at “1 and 2”].... Time-studies could
not have played a very important role in these dis-
positions.”
When I replied that we were now talking about the C&NW
and not about other carriers, Mr. Maloney’s answer was that
“the Burlington, the Milwaukee Road, and the Great
Northern have returned their crews to a “1 and 2”
consist and the [C&NW] crews should now be
returned to a “‘l and 2” consist the same as these
other railroads.”
When I again pressed for the study of individual jobs, Mr.
Maloney stated that he was
“of the firm belief that time-study or no time-study,
the organization wouid seek and gain an agreement
by saying: ‘here is what the Milwaukee, the CB&Q,
and the Great Northern have done, and this is what
the [C&NW] is going to have to do.’ ”
45
UTU Assistant Vice President Moore added that President
Luna had stated that in a single yard all the jobs working
side by side must be returned to a “1 and 2” crew consist.
Later, after lunch, at the suggestion of the mediator the
parties did agree to a two-week recess so that job studies
could be made. Nevertheless, Mr. Moore then made the
statement that he
“presume[d] that the study [was] for the carrier’s
benefit and not for any purpose of the employees,
since [he] dofes] not intend to change [his] posi-
tion in any way relative to insisting on a return to
a “1 and 2” crew consist.”
Moreover, Mr. Moore stated that he does not think that the
C&NW is any different from the other railroads which have
already agreed to return their employees to a crew consist
of “1 and 2.”
27. Mediation sessions resumed on June 18, 1969, with
a discussion of the methods which the carrier had used in
conducting its job studies. General Chairman Maloney asked
at the start if all the time that was injected into these stud-
ies wasn’t “‘pointless,”” because
“. . . on all of these various railroads across the
country agreements eventually resulted which put
the men back to work regardless of the studies.”
Mr. Maloney then made a written proposal to settle the dis-
pute. In general, the proposal provided that all crews on
the railroad be operated at “1 and 2.” Mr. Maloney stated
-without giving any details—that this proposal was based
upon “a comprehensive study of [his] own relative to crew
consist.” Moments later he asked the carrier to make a
counterproposal and said that he did “not give a damn
about the carrier’s time and motion study.”
28. The meeting of the parties on June 20, 1969, was
brief. It was not attended by all the union’s representa-
tives, and the only subject discussed was the carrier’s latest
proposal. This called for restoration of five yard and 2
branch line jobs to “1 and 2” status, for further reductions
46
of other yard and branch line crews to “1 and 1,” and
reductions to “1 and 1” in mainline through freight in
accordance with the carrier’s long-standing proposal that
reductions be made in that area of the C&NW’s operations,
29. On June 24, 1969, the carrier received the UTU’s
next proposal through the mediator. This called for a “|
and 2” consist on all the carrier’s crews except for 8 yard
crews and 3 branch line road crews. On June 25, the par-
ties met again and discussed at length the union’s proposal.
I gave all my reasons why the carrier could not accept such
a return to larger crews, and Mr. Maloney responded in a
way which once again demonstrated the union’s hostile atti-
tude toward discussing crew consist on the merits:
“T will not sit here and argue whether or not these
men are needed. I believe they are needed.”
I brought up the subject of mainline through freight serv-
ice and said that in my view the Award of Arbitration
Board No. 282 did not go far enough in resolving the crew
consist question because it excluded consideration at that
time of reduction in mainline. Again Mr. Maloney’s
response summed up the union’s attitude; for he said that
while the parties were not then discussing the carrier’s pro-
posal.
“when we do get to that proposal, the organization
is definitely not going to agree to any change in
crew consist on mainline or through freight jobs.”
In other words, the union just wasn’t going to bargain at
all on the C&NW’s proposals for reductions in mainline.
When the carrier’s proposal did come under discussion, Mr.
Maloney said that if he accepted that proposal he would be
going
“far beyond his responsibility as General Chairman
in this case.”
The meaning of Mr. Maloney’s words was clear to me: He
did not have the authority from his national office and
from President Luna to agree to any settlement which
retained a substantial number of yard and branch line crews
47
at “1 and 2” or which granted any of the reductions sought
by the carrier’s proposals in mainline. After another brief
discussion this meeting ended.
30. Four further meetings were held by the parties with
a mediator between June 26 and July 2, 1969. These meet-
ings in the main consisted of arguments over the “pros and
cons” of the different proposals, and little progress was
made toward reaching an agreement. At all times the
union representatives insisted that the C&NW would have
to make an agreement like the other carriers on which
there have been settlements on the crew consist issue,
and especially like the agreements reached on the Milwaukee
Road; the Great Northern; and the Chicago, Burlington &
Quincy. At one point in the parties’ meeting on June 30,
1969, BRT General Chairman Maloney seemed to sum up
the union’s final position:
“. . . [T]he employees on the [C&NW] are going to
insist On an agreement comparable to the agree-
ments obtained by their fellow workers on other
railroads in the mid-west.”
31. On July 2, 1969, the mediator announced that in
his view mediation had failed and that he was so reporting
to the Mediation Board. No further mediation sessions were
held. In October, 1969, the Mediation Board proffered
arbitration to the parties. The C&NW promptly accepted,
but when the union declined, the Board terminated its
services in this dispute on October 16, 1969.
32. On November 11, 1969, conferences resumed at my
request with UTU Vice President Francis Tuffley and the
various General Chairmen present to represent the union.
When this meeting opened, I first inquired of Vice Presi-
dent Tuffley if the union intended to delay their strike.
Mr. Tuffley responded that the union would not strike as
long as conferences continued to progress, but that he did
not envision conferences continuing beyond one week.
During the next seven days the parties met in the offices
of the C&NW, during which time we identified the crews
48
involved in this dispute and discussed our positions. At no
time, however, did the union alter its refusal to even con-
sider the carrier’s Section 6 notice on main line crews or in
any way deviate in its offers to dispose of the dispute from
the agreement results made with other railroads.
{Subscription and notarial certificate omitted in printing. ]
EXHIBIT A
General Grievance Committee
BROTHERHOOD OF RAILROAD TRAINMEN
Chicago & North Western Railway
Chicago, Illinois
July 6, 1965
Mr. T. M. Van Patten
Director of Personnel
C. & N. W. Railway
Chicago, Illinois 60606
Dear Sir:
The undersigned, representative of the Road Trainmen of
the Chicago & North Western (Proper) Railway Company,
under existing agreements between management and the
Brotherhood of Railroad Trainmen, has been authorized
under the laws and rules of procedure of the organization,
to submit to you notice of desire to change, effective Jan-
uary 26, 1966, the said agreements as set forth below:
Consist of crews in road service: ‘‘Effective January
26, 1966 a rule shall be inserted into the respective
agreements between the parties applying to Brake-
men (trainmen) which will provide that crews in
road through freight service shall consist of not less
than two (2) Brakemen (trainmen).
45
UTU Assistant Vice President Moore added that President
Luna had stated that in a single yard all the jobs working
side by side must be returned to a “1 and 2” crew consist.
Later, after lunch, at the suggestion of the mediator the
parties did agree to a two-week recess so that job studies
could be made. Nevertheless, Mr. Moore then made the
statement that he
“presume[d] that the study [was] for the carrier’s
benefit and not for any purpose of the employees,
since [he] dofes] not intend to change [his] posi-
tion in any way relative to insisting on a return to
a “1 and 2” crew consist.”
Moreover, Mr. Moore stated that he does not think that the
C&NW is any different from the other railroads which have
already agreed to return their employees to a crew consist
of “1 and 2.”
27. Mediation sessions resumed on June 18, 1969, with
adiscussion of the methods which the carrier had used in
conducting its job studies. General Chairman Maloney asked
at the start if all the time that was injected into these stud-
ies wasn’t “pointless,” because
“. . . on all of these various railroads across the
country agreements eventually resulted which put
the men back to work regardless of the studies.”
Mr. Maloney then made a written proposal to settle the dis-
pute. In general, the proposal provid) that all crews on
the railroad be operated at “‘l and 2." Mr. Maloney stated
-without giving any details—that this proposal was based
upon “ta comprehensive study of [his] own relative to crew
consist.” Moments later he asked the carrier to make a
counterproposal and said that he did “not give a damn
about the carrier’s time and motion study.”
28. The meeting of the parties on June 20, 1969, was
brief. It was not attended by all the union’s representa-
tives, and the only subject discussed was the carrier’s latest
proposal. This called for restoration of five yard and 2
branch line jobs to “*l and 2” status, for further reductions
46
of other yard and branch line crews to “1 and 1,” and
reductions to “1] and 1” in mainline through freight in
accordance with the carrier’s long-standing proposal that
reductions be made in that area of the C&NW’s operations.
29. On June 24, 1969, the carrier received the UTU’s
next proposal through the mediator. This called for a “|
and 2” consist on all the carrier’s crews except for 8 yard
crews and 3 branch line road crews. On June 25, the par-
ties met again and discussed at length the union’s proposal.
I gave all my reasons why the carrier could not accept such
a return to larger crews, and Mr. Maloney responded in a
way which once again demonstrated the union’s hostile atti-
tude toward discussing crew consist on the merits:
“T will not sit here and argue whether or not these
men are needed. I believe they are needed.”
I brought up the subject of mainline through freight serv-
ice and said that in my view the Award of Arbitration
Board No. 282 did not go far enough in resolving the crew
consist question because it excluded consideration at that
time of reduction in mainline. Again Mr. Maloney’s
response summed up the union’s attitude; for he said that
while the parties were not then discussing the carrier’s pro-
posal.
“‘when we do get to that proposal, the organization
is definitely not going to agree to any change in
crew consist on mainline or through freight jobs.”
In other words, the union just wasn’t going to bargain at
all on the C&NW’s proposals for reductions in mainline.
When the carrier’s proposal did come under discussion, Mr.
Maloney said that if he accepted that proposal he would be
going
“far beyond his responsibility as General Chairman
in this case.”
The meaning of Mr. Maloney’s words was clear to me: He
did not have the authority from his national office and
from President Luna to agree to any settlement which
retained a substantial number of yard and branch line crews
47
at “1 and 2” or which granted any of the reductions sought
by the carrier’s proposals in mainiine. After another brief
discussion this meeting ended.
30. Four further meetings were held by the parties with
a mediator between June 26 and July 2, 1969. These meet-
ings in the main consisted of arguments over the “pros and
cons” of the different proposals, and little progress was
made toward reaching an agreement. At all times the
union representatives insisted that the C&NW would have
to make an agreement like the other carriers on which
there have been settlements on the crew consist issue,
and especially like the agreements reached on the Milwaukee
Road; the Great Northern; and the Chicago, Burlington &
Quincy. At one point in the parties’ meeting on June 30,
1969, BRT General Chairman Maloney seemed to sum up
the union’s final position:
“. . [T]he employees on the [C&NW] are going to
insist On an agreement comparable to the agree-
ments obtained by their fellow workers on other
railroads in the mid-west.”
31. On July 2, 1969, the mediator announced that in
his view mediation had failed and that he was so reporting
to the Mediation Board. No further mediation sessions were
held. In October, 1969, the Mediation Board proffered
arbitration to the parties. The C&NW promptly accepted,
but when the union declined, the Board terminated its
services in this dispute on October 16, 1969.
32. On November 11, 1969, conferences resumed at my
request with UTU Vice President Francis Tuffley and the
various General Chairmen present to represent the union.
When this meeting opened, I first inquired of Vice Presi-
dent Tuffley if the union intended to delay their strike.
Mr. Tuffley responded that the union would not strike as
long as conferences continued to progress, but that he did
not envision conferences continuing beyond one week.
During the next seven days the parties met in the offices
of the C&NW, during which time we identified the crews
48
involved in this dispute and discussed our positions. At no
time, however, did the union alter its refusal to even con-
sider the carrier’s Section 6 notice on main line crews or in
any way deviate in its offers to dispose of the dispute from
the agreement results made with other railroads.
{Subscription and notarial certificate omitted in printing.]
EXHIBIT A
General Grievance Committee
BROTHERHOOD OF RAILROAD TRAINMEN
Chicago & North Western Railway
Chicago, Illinois
July 6, 1965
Mr. T. M. Van Patten
Director of Personnel
C. & N. W. Railway
Chicago, Illinois 60606
Dear Sir:
The undersigned, representative of the Road Trainmen of
the Chicago & North Western (Proper) Railway Company,
under existing agreements between management and the
Brotherhood of Railroad Trainmen, has been authorized
under the laws and rules of procedure of the organization,
to submit to you notice of desire to change, effective Jan-
uary 26, 1966, the said agreements as set forth below:
Consist of crews in road service: “Effective January
26, 1966 a rule shall be inserted into the respective
agreements between the parties applying to Brake-
men (trainmen) which will provide that crews in
road through freight service shall consist of not less
than two (2) Brakemen (trainmen).
49
Crews in way-freight service shall consist of not less
than three (3) Brakemen (trainmen) on the follow-
ing main lines:
Between Chicago and Council Bluffs
Between Chicago and Elroy
Between Chicago and Milwaukee
Crews in suburban passenger service shall consist of
not less than two (2) Brakemen (collectors)
Therefore, in accordance with the provisions of the Railway —
Labor Act, as amended, and current agreements covering
rates of pay, rules and working conditions of the employees
herein covered, you will please accept this as formal notice
of our desire to change the said agreements as set forth
above.
Please reply to this proposal in writing to the undersigned
General Chairman within ten days, fixing date within the
provisions of the Railway Labor Act when conference with
you may be had for the purpose of discussing these matters.
Yours truly,
/s/ Norman Speigal
Chairman, G.G.C.
cc: Mr. Charles Luna
50
EXHIBIT B
General Grievance Committee
BROTHERHOOD OF RAILROAD TRAINMEN
Chicago & North Western Railway
Chicago, Illinois
July 6, 1965
Mr. T. M. Van Patten
Director of Personnel
C. & N. W. Railway
Chicago, Illinois 60606
Dear Sir:
The undersigned, representative of the Yardmen and Switch-
tenders of the Chicago & North Western (Proper) Railway,
under existing agreements between management and the
Brotherhood of Railroad Trainmen, has been authorized
under the laws and rules of procedure of the organization,
to submit to you notice of desire to change, effective Jan-
uary 26, 1966, the said agreements as set forth.
Consist of crews in all yards, which shall provide
that “Effective January 26, 1966, a rule shall be
inserted in the respective agreements, between the
parties applying to yard service employees, which
will provide that train and yard crews in all classes
of yard service, including Transfer, Interchange,
Yard Work Trains, shall consist of not less than one
(1) conductor (foreman) and two (2) brakemen
(helpers).
Yard crews employed at Proviso Hump Yard to con-
sist of not less than one (1) conductor (foreman)
and three (3) brakemen (helpers)
Therefore, in accordance with the provisions of the Railway
Labor Act, as amended, and current agreements covering
rates of pay, rules and working conditions of the employees
herein covered, you will please accept this as formal notice
of our desire to change the said agreements as set forth
above.
51
Please reply to this proposal in writing to the undersigned
General Chairman within ten days, fixing date within the
provisions of the Railway Labor Act when conference with
you may be had for the purpose of discussing these mat-
ters.
Yours truly,
/s/ Norman Speigal
Chairman, G.G.C.
cc. Mr. Charles Luna
EXHIBIT C
December 24, 1965
File 69-2-34-Tmm. C&NW
69-2-34-Ydmn. C&NW
WIJF:a
Mr. N. Spiegel
14 East Jackson Boulevard
Chicago, Illinois 60604
Dear Sir:
This has reference to our previous correspondence concern-
ing your purported Section 6 notices of July 6, 1965 relat-
ing to crew consist:
As I previously informed you, without waiving the carrier’s
position as to the prematurity and impropriety of your
requests, the carrier reserved the right to file such proposals
as it may consider appropriate for concurrent handling with
your requests when considered appropriate to do so.
We hereby give notice, under our existing agreement or
agreements and pursuant to the provisions of the Railway
Labor Act, that we propose to revise and supplement such
agreement or agreements in accordance with the proposals
set forth in “Attachment A” appended hereto, such pro-
posals to be considered and progressed concurrently with
52
your notices of July 6, 1965. It is suggested that the ini-
tial conference on the carrier’s proposals be held at 10:00
a.m., Tuesday, January 18, 1966, at 400 West Madison
Street, Chicago, Illinois, at which time we will also discuss
the organization’s proposals.
As a matter of information we have suggested the same
time and place for conference with the other BRT General
Chairmen relative to identical notices being served on them
by the carrier for concurrent handling with proposals served
by them which were similar to those forwarded with your
letters of July 6, 1965.
Please acknowledge receipt of this notice and advise if the
proposed time, date and place for holding the initial con-
ference are agreeable to you.
In the event that we are unable to reach an agreement upon
the organization’s and carrier’s proposals at such conference,
we further propose that the matter be handled on a joint
national basis. In accordance with established procedure
which has been followed in the railroad industry on numer-
ous occasions during the last fifty years, if an agreement is
not reached in our conferences, this carrier will join with
other carriers serving a like notice upon their employes
represented by the Brotherhood of Railroad Trainmen in
the creation of regional Carriers’ Conference Committees
which, in conjunction with the National Railway Labor
Conference, will be authorized to represent it in progress-
ing the matter to a conclusion. It is requested that you
join with representatives of the employes on other carriers
who are receiving like proposals in the creation of an
Employes’ National Conference Committee to negotiate to
53
a conclusion, in accordance with the provisions of the Rail-
way Labor Act, the subject matter of these proposals.
Yours truly,
(Signed) T. M. Van Patten
BC: Mr. J. F. Griffin - See your Circular No. 229-5 of
December 21, 1965.
T.M.V.P.
BBC: Messrs. S. C. Jones
L. S. Provo
J. J. Hillman
BBBC: Mr. B. W. Heineman
ATTACHMENT A TO EXHIBIT C
CONSIST OF CREWS
Consist of Road and Yard Crews
A. Eliminate all agreements, rules, regulations and prac-
tices, however established, applicable to any class or
grade of train or yard service employes, which require
the employment or use of
(i) a stipulated number of trainmen (assistant con-
ductors, ticket collectors, baggagemen, brakemen
or flagmen) in any crew used in any class of road
service, including all miscellaneous and unclassi-
fied services, or
a stipulated number of brakemen or helpers in
any crew used in any class of yard, transfer or
belt line service, including all miscellaneous serv-
ices to which mileage rates do not apply.
54
B. Establish a rule to provide that
1. Management shall have the unrestricted right,
under any and all circumstances, to determine
when and if trainmen (assistant conductors, ticket collec-
tors, baggagemen, brakemen and flagmen) shall be used in
each crew employed in all classes of road service, including
all miscellaneous and unclassified services, and if used the
number and classification of employes who will be so used;
and when and if brakemen or helpers shall be used in each
crew employed (including yardmen who work independent
of a yard crew) in all classes of yard, transfer and belt line
service, including all miscellaneous services to which mileage
rates do not apply, and if used, the number and classifica-
tion of employes who will be so used.
2. All agreements, rules, regulations, interpretations
and practices, however established, which conflict
with the provisions of this rule shall be eliminated.
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
3 [Caption omitted in printing]
AFFIDAVIT OF LARRY S. PROVO ON BEHALF OF
THE PLAINTIFF, CHICAGO AND NORTH
WESTERN RAILWAY COMPANY
* * * * *
1. 1 am President and Chief Executive Officer of the
Chicago and North Western Railway Company (hereinafter
referred to as the “C&NW” or the “carrier”), * * *
* os a * *”
6. * * * Any strike or work stoppage forcing the rail-
road to terminate its operations will endanger this invest-
ment of $1,276,632,000 and deprive the C&NW of $750,000
in revenue for each day it continues. Considering only the
55
loss of traffic during the strike to competing forms of
transportation understates the injury to the corporate invest-
ment, as the experience of this industry has been that cus-
tomers lost to competitors during strikes are often not
regained on the resumption of normal services.
7. The C&NW is in such critical financial condition
that restoration of unneeded jobs will have a serious impact
upon the ability of the railroad to continue to provide the
public with effective transportation service over its exten-
sive 11,500 mile system. Our marginal economic nature is
a matter of public record. The C&NW has had ordinary
income deficits in five out of the last ten years. During
the period 1963-1966, when wages and price levels remained
reasonably stable, the C&NW enjoyed a modest net income
from operations. Beginning in 1967, however, we began
suffering deficits, a trend which has accelerated in 1969—
in the first six months that deficit exceeds $11.2 million,
creating a working capital deficiency at the end of the first
half of 1969 exceeding $12 million.
* ca *
* *
9. * * * Upon the rendition of the Award of Arbitra-
tion Board No. 282 this management examined the work
of our crews to determine where the manning of trains
could be reduced consistent with an efficient operation. At
that time, our trains were generally manned with a mini-
mum consist of one conductor and two brakemen (i.e., “1
and 2”). The C&NW then utilized the procedures of Sec-
tion III(A) of the Award to effect those reductions. * * *
As a result of agreements and awards so obtained, the
C&NW was authorized to eliminate, as soon as attrition per-
mitted, unneeded brakemen on approximately 200 crews.
10. The C&NW presently operates approximately
760 crews a day on the whole railroad, of which 429 are
in yard service and 331 are in road service. Of the 331
crews in road service, 186 work on main lines (where the
provisions of Award No. 282 did not apply) and 145 work
on branch lines. Presently, pursuant to the authority of
56
the above-mentioned agreements and awards, the C&NW
operates 128 crews in yard service (out of a total of 429)
with a consist of either one conductor and one brakeman
(i.e., “1 and 1°’) or only one conductor, and 51 crews in
road service on branch lines (out of a total of 145) with a
consist of “1 and 1.” Reductions on these 179 crews today
represent an annual savings of $1,548,639 to the C&NW, a
figure which increases annually as further attrition permits
realization of the full benefits of our awards and agree-
ments. Considering the critical financial condition of the
C&NW, elimination of this annual savings of $1,548,639
would aggravate our present working capital deficiency and
make even more impossible the modernization of our prop-
erty, which is the only hope for the future if this railroad
is to furnish the shipping public with needed transporta-
tion services.
11. Almost eighty percent of this railroad’s 11,500
mile system consists of branch lines, many of which were
constructed in the 19th Century to serve markets which
have since shifted. Since these branch lines are marginal
economic operations producing only a minimum amount of
traffic today, they must be abandoned when rising expenses
create deficits so great that their continuance can no longer
be justified. The addition of unproductive employees to
the 51 branch line crews presently working with a consist
of “‘1 and 1” will only weaken the viability of those branch
lines and accelerate their abandonment, to the detriment
of the remaining shippers dependent on that service.
{Subscription and Notarial Certificate omitted in printing]
_ 37
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
[Caption omitted in printing]
TEMPORARY RESTRAINING ORDER
This matter came to be heard upon the plaintiff's
motion for a temporary restraining order, supported by the
verified complaint herein, an affidavit of James E. Wolfe,
an affidavit of James R. Wolfe, and an affidavit of Larry S.
Provo, from which it appears that the defendant, United
Transportation Union has threatened a strike against the
plaintiff, and that this strike and picketing will cause im-
mediate and irreparable injury, loss, and damage before a
hearing can be had on the plaintiff's motion for preliminary
injunction, in that the plaintiff will be forced to suspend
the transportation of passengers and freight in interstate
commerce, with the consequences that if the strike is not
restrained the plaintiff will be deprived of hundreds of
thousands of dollars in revenues for each day the strike
continues, many of its employees will be deprived of their
employment and wages for the duration of the strike,
many businesses will be deprived of essential transportation
services, and railroad transportation in a large area of the
United States may be seriously impaired, so as to impede
seriously or interrupt altogether the transportation in inter-
state commerce of passengers, mail, freight, and express
lading (including government mail and express, military
personnel, and material), and food and other lading essen-
tial to the public health and safety.
IT IS THEREFORE ORDERED that the United Trans-
portation Union, each of its divisions, lodges, officers,
agents, servants, counsellors, and members, and all persons ~
acting by, through, and for it, be and they are hereby tem-
porarily restrained from authorizing or engaging in any
strike against or picketing of the plaintiff over any dispute
as to the proper consist of road and yard crews;
58
That this temporary restraining order be granted on
the condition that an undertaking in the sum of $5,000.00
be filed to make good such damages not to exceed said
sum as may be suffered or sustained by any party who is
found to be wrongfully restrained;
That the defendant be and is hereby directed to show
cause, before this Court at 2:00 P.M. on November
28, 1969, why the plaintiff's motion for preliminary injunc-
tion should not be granted;
That this temporary restraining order shall expire at
8 o’clock P.M. on November 30, 1969, unless it is further
extended by order of this Court; and
That this temporary restraining order may be served
by any person over the age of eighteen years, selected for
that purpose by the plaintiff.
Dated: 8 o’clock P.M.
November 19, 1969
J. Sam Perry
United States District Judge
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
[Caption Omitted in Printing]
MOTION TO VACATE
TEMPORARY RESTRAINING ORDER
Now comes the defendant, UNITED TRANSPORTA-
TION UNION, a voluntary unincorporated association, by
JOHN J. NAUGHTON, its attorney, and moves This Hon-
orable Court to vacate the Temporary Restraining Order
entered herein without notice to defendant on November
19, 1969, on the grounds that:
59
|) The Complaint fails to state a claim upon which
reliecan be granted;
1) The plaintiff's attorney failed to certify to the
cour his efforts, if any, to give notice to the defendant or
its Aorney and the reasons why notice should not be
requed, and
3) The issuance of a Temporary Restraining Order is
not ecessary for the prevention of irreparable injury to the
plairiff as more fully appears from the Affidavit of Francis
D. Tffley attached hereto.
[Subscription omitted in printing]
AFFIDAVIT
RANCIS D. TUFFLEY, being first duly sworn, on
oath eposes and says:
) That he is a Vice President of the UNITED TRANS-
PORATION UNION, the defendant in this cause, and is
assigrd to the dispute between the said Union and the
Chicao and North Western Railway Company which is set
out ithe Complaint;
) That as part of such assignment, he participated in
a preminary conference on the property on August 6,
1968which is referred to in paragraph 17 of the Affidavit
of Jaes R. Wolfe. Though this was a mere preliminary
confence, he came to the opinion, at that time, that the
demads of the railroad were so different than demands on
otherailroads that he did not feel they could be justified.
He net appeared in the conferences after the mediation
had epired and arbitration had been declined. As part of
his piparation for this appearance, he reviewed the con-
ferents at which he had not been present. He then got in
touchvith Mr. James R. Wolfe, by telephone, and requested
that cnferences be resumed. After several phone calls, it
Was aeed to resume conferences on November 12, 1969.
In thcourse of those conferences, we discussed each crew
indiviyally and our respective positions. Neither party
60
insisted that all crews had the same consist. The disagree-
ment was over specific crews. In the course of that con-
ference, we agreed to withdraw all of our requests for a
crew consist of 1 and 3;
3) The carrier’s counter-proposal Section 6 Notice
was discussed in those conferences in that the subject mat-
ter was consistently discussed;
4) At no time did we make an adamant demand that
an agreement on the C&NW had to be identical with agree-
ments on other railroads and, in fact, this would have been
impossible since those agreements differed;
5) At no time did we demand that any agreement
could not be less favorable than the most favorable crew
consist agreement reached on any other railroad;
6) In the course of the negotiations, the Union had
refused to agree to engage in National handling of this dis-
pute, but subsequently National handling became impossi-
ble because most of the other railroads entered into crew
consist agreements. In the post-mediation conferences, no
request for or mention of National handling was made;
* e + * *
[Subscription and notarial certification omitted in printing]
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
[Caption omitted in printing]
AMENDMENT TO VERIFIED COMPLAINT
Now comes the plaintiff, Chicago and North Western
Railway Company, a corporation, by its attorneys, James
P. Daley, Robert Schmiege, William H. Dempsey, Jr. and
David Booth Beers, and pursuant to Rule 15(a) of the Fed-
eral Rules of Civil Procedure hereby amends the Verified
61
Complaint filed on November 20, 1969 in the following
respects:
1. Paragraph 5 of the Verified Complaint is amended
to read as follows:
“5. The BRT notices and carrier counter-notices
referred to in Paragraph 4 above were discussed by
the parties in conferences held on the property of
the carrier, but no agreements were reached. The
dispute was also the subject of mediation under the
auspices of the National Mediation Board. However,
mediation failed to produce any agreements, and
the Mediation Board urged the parties to submit the
dispute to arbitration. The C&NW accepted, but
when the BRT declined, on October 16, 1969, the
Board terminated its services.”
2. Paragraph 8 of the Verified Complaint is amended
to read as follows:
“8. The plaintiff disagrees with the position of
the UTU set forth in Paragraph 7 above. The plain-
tiff takes the position that it has complied with the
requirements of Section 2 First of the Railway Labor :
Act (45 U.S.C. § 152 First) ‘to exert every reasona-
ble effort to make and maintain agreements con-
cerning rates of pay, rules, and working conditions’
in the present dispute. The plaintiff takes the fur-
ther position that the UTU has not complied with
the foregoing requirements of Section 2 First of that
Act in that:
First: Having insisted in the foregoing dispute
upon bargaining separately with the plaintiff carrier
instead of bargaining jointly with all the railroads
upon which the BRT had served like notices, never-
theless
(a) The defendant has refused to bargain on
the proposals in the carrier’s counter-notices to
reduce the size of main line crews;
(b) The defendant has insisted that any agree-
ment on the C&NW must conform to the results of
the agreements reached on the other railroads upon
62
which the BRT served like notices without any con-
sideration given to conditions existing on the
C&NW;
(c) The defendant has entered negotiations
with a fixed position and a determination not to
deviate from the position regardless of what rele-
= consideration might be advanced by the C&NW;
an
Second: Notwithstanding the foregoing, the
defendant has refused to engage in national han-
dling of this dispute and to negotiate on a joint
basis a national crew consist agreement with all the
railroad on which the BRT served like notices.
[Subscription and certificate of service omitted in printing]
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
[Caption omitted in printing]
VERIFIED ANSWER TO VERIFIED COMPLAINT
Now comes the UNITED TRANSPORTATION UNION,
a voluntary, unincorporated railroad labor association,
organized under and existing by reason of the provisions of
the Railway Labor Act, by John J. Naughton and John H.
Haley, Jr., its attorneys, and for its Answer to the Verified
Complaint says:
FIRST DEFENSE
The Verified Complaint fails to state a claim against
defendant upon which relief can be granted.
SECOND DEFENSE
This Court lacks jurisdictign, pursuant to the Norris-La- .
Guardia Act, 29 USC 101 (et seq.) to grant the relief
prayed for in the Verified Complaint.
63
THIRD DEFENSE
This defendant states that the plaintiff, throughout the
handling of this dispute, has been guilty of bargaining in
bad faith and has failed to exert every reasonable effort to
settle the instant dispute and further avers that this plaintiff-
railroad, along with many other United States railroads, has
been held to have been guilty of bargaining in bad faith by
the Opinion and Judgment of the United States Court of
Appeals, for the District of Columbia in BRT v. Akron &
Barberton Belt R. Co., 385 F.2d 581, 597, 598 (1967).
Certiorari denied, 390 US 923. Defendant further avers
that plaintiff-railroad has consistently attempted to develop
acase to prosecute in the courts rather than make an effort
to arrive at an agreement as to the crew consist rule.
FOURTH DEFENSE
1) Defendant admits this is an action for an injunction
but denies all other allegations contained in paragraph 1;
2) Defendant admits the allegations contained in para-
graphs 2 and 3 of the Complaint;
3) Defendant admits the allegations contained in para-
graph 4.
4) Answering paragraph 5, defendant admits that the
BRT Notices and the carrier counter-notices were discussed
by the parties in informal conferences held on the property
of the carrier but avers that the carrier took the position
that those Notices were premature when they were served
in 1965 and continued to hold that position until January
of 1968 when this dispute over “prematurity” was finally
resolved in the defendant-union’s favor by the denial of a
Petition for a Writ of Certiorari by the United States
Supreme Court. Defendant also admits that this dispute
was mediated under the auspices of the National Mediation
Board and that there were no agreements as the result of
this mediation. Defendant avers that plaintiff never
intended to reach an agreement but that, instead, it sought
64
to exhaust the mediation process so that it could bring a
law suit seeking to permanently enjoin any self-help by the
union over the dispute set out in Section 6 Notices,
Defendant admits the Mediation Board terminated its sery-
ices and that the C&NW accepted the arbitration and that
the BRT declined. Defendant further admits that on Octo-
ber 16, 1967 the Board terminated its services;
5) Answering paragraph 6, defendant admits that the
BRT was succeeded as an entity by this defendant and fur-
ther admits that the individual negotiators for the two
organizations have been, for the most part, the same
throughout but denies that the positions now take: in this
dispute by the UTU are the same as those formerly taken
by the BRT;
6) Defendant admits the allegations contained in para-
graph 7;
7) Answering paragraph 8, defendant admits that the
plaintiff-railroad is taking a position. Defendant avers that
that “position” is without any merit and that it is taken
for the purpose of delaying the eventual signing of a crew
consist rule. Defendant states that plaintiff is barred from
taking the position that it exerted every reasonable effort
to make and maintain agreements in the face of the hold-
ing by the Court of Appeals, for the District of Columbia,
that it did not take such action. Further answering para-
graph 8, defendant asserts that it has bargained on the car-
rier’s counter-notices; that it has given consideration to con-
ditions existing on the C&NW; and that it has not entered
negotiations with a fixed position and with the determine
tion not to deviate from that position. Defendant admits
that it had refused to engage in National handling of this
dispute at an earlier time and avers that this refusal was
held to be proper by the United States Court of Appeals
for the District of Columbia in BRT v. Atlantic Coast Line,
383 F.2d 225 (1967); that there is no distinction that can
be drawn between the position of the 3 railroads imme-
diately involved in that dispute and the position of the
65
plaintiff here and that, in fact, the railroad has not
requested any National handling of this dispute in confer-
ences between the parties, either during those conferences
held in mediation and those conferences held after the
mediation of this dispute. Defendant denies each and
every other allegation contained in paragraph 8;
8) Defendant denies that it has threatened to strike the
plaintiff. Defendant avers that any strike or exercise of
self-help, which might be called, would not be in viola-
tion of the Railway Labor Act;
9) Answering paragraph 10, defendant admits that any
strike called by it, if successful, would in varying degrees
bring the operation of the C&NW to a halt. Defendant
avers that no commuter service of the plaintiff would be
disrupted since it is the policy of this organization to
maintain commuter services on railroads in the Chicago
area in every strike situation. If those commuter services
are not maintained, it will be solely because the railroad
itself has decided not to maintain them. Defendant admits
that the plaintiff will lose revenues in an indeterminate
amount if a strike is called and is successful. Defendant
denies all other allegations in paragraph 10;
WHEREFORE, defendant denies that plaintiff is entitled
to the relief or any part thereof requested in the prayer of
its Verified Complaint and asks that the Verified Complaint
be dismissed at the plaintiff's costs and that the defendant
be allowed all the costs incurred herein through the issuance
of the Temporary Restraining Order and for those costs
which occur or may occur after the issuance of the said
Temporary Restraining Order, and specifically requests that
the costs assessed against the plaintiff include a reasonable
attorney’s fee.
66
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
[Caption omitted in printing]
[1] TRANSCRIPT OF PROCEEDINGS
had in the above-entitled cause before the Honorable J.
SAM PERRY, one of the Judges of said Court, in his
courtroom in the United States Courthouse, Chicago, Illi-
nois, commencing on Tuesday, December 2, 1969, at the
hour of 2:00 o’clock, p.m.
* aa + ” *
[16] JAMES E. WOLFE
called as a witness by the plaintiff herein, having been first
duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. SCHMIEGE:
” * 7 ; + +
{17} Q. As an introduction, Mr. Wolfe, would you tell
us what your experience has been in the railroad industry?
A. Yes. I entered the service of the Chicago Burlington
& Quincy Railroad Company at Hannibal, Missouri on
February 2, 1918. * * *
+ * + - *
{18} A. I was assistant to the executive vice-president,
assistant vice-president, and finally vice-president in charge
of personnel and labor relations matters for the Burlington
System, that is, the Chicago, Burlington & Quincy, the Fort
Worth and Denver, and the Colorado Southern. During that
period a great part of it | was a member of the Carriers’ Con-
ference Committee representing the Western Railroads. |
finally became permanent chairman of the Western Carriers’
67
Conference Committee [19] and the Committee on Labor
Relations for the Western Railroads.
Then the National Railway Labor Conference was created
to handle labor matters at the national level for practically
all of the railroads in the industry. When that organization
was created, I was selected to be its chairman. * * * I
represented the railroads when this dispute and many dis-
putes that were in existence at the time before Emergency
Board No. 154. * * * The dispute, as Mr. Haley’ stated to
the Court, involving the L&N, the Illinois Central, and the
Belt, I did [20] some work for those railroads.
Q. This was after your retirement? A. Yes, that was
after my retirement.
Q. Mr. Wolfe, could you explain to the Court, please,
what a Carriers’ Conference Committee is? You referred
to the fact that you were a member of the Western Car-
riers’ Conference Committee. A. A Carriers’ Conference
Committee is a limited number of officers from the rail-
roads who were selected to represent the railroads within
a region and the handling of disputes on a national basis.
In this industry we have the Western Region, the Eastern
Region, and the Southeastern Region. Disputes of that
character have been handled on a national basis, about
which I will testify later, for many, many years.
Q. You also referred in your testimony to the fact that
you were once Chairman of the National Railway Labor
Conference. Could you explain to the Court, please, what
that conference is? A. Yes. The presidents of the rail-
roads had discussed for considerable time possibility of
organizing an organization which would be in charge, that
is, they would have the authority to handle labor matters
at the national level for all of the [21] railroads in the in-
dustry. Now I say all of the railroads. There were some
small railroads that were not members of the National Rail-
way Labor Conference, but almost without exception those
railroads had stand-by agreements. When a national agree-
ment was executed those railroads accepted the terms of
such an agreement.
68
Q. Would you define for the Court the term “national
movement” as it is used in the railroad industry? A. Yes.
It has been described on several occasions by the National
Mediatigf Board and others, but in substance, a national
movement represents a dispute or the serving of identical
notices by a union or a group of unions upon almost all of
the railroads of the industry, or it could be that the rail-
roads of the industry would serve almost identical notices
at about the same time on a particular union or a group of
unions. Where the issue or issues involved are identical and
involve a great number of railroads, that, as we understand
it, is a national dispute, whether it was originated by the
serving of notices by union or unions, or by the railroads.
{22} Q. What has been the customary method in the
_ railroad industry for handling these national movements
that you have just described? A. Well, almost without ex-
ception, the so-called national disputes, as I stated earlier,
arise out of the serving of a great number of notices. With
a few exceptions, they have been handled on a national
basis. The railroads give their power of attorney to the Ne
tional Railway Labor Conference, or prior to the creation
of that conference, to the Regional Conference committees,
and the dispute or disputes are handled to a conclusion. It
has worked very satisfactorily.
te a & ae *
[24] MR. HALEY: May it please the Court, I dis-
like to interrupt Mr. Wolfe, but I think I must object to
this entire line of questioning.
[25] We-—Mr. Wolfe, Mr. Dempsey, Mr. Beers and I-
participated in the trial of the Atlantic Coastline v. the
Brotherhood of Railroad Trainmen in which this same tes-
timony that is being given here now by Mr. Wolfe was
given by him there. I have a transcript in my room
which I have sent for of the testimony about national
handling in the past as given by Mr. Wolfe and others.
The question of a duty of a union to negotiate on a
national basis based on Mr. Wolfe’s testimony, which was
69
identically before what it is starting out to be now, has
been resolved. It has been resolved by the Court of Ap-
peals for the District of Columbia; certiorari has been de-
nied by the Supreme Court of the United States. The
Courts have held that this union has not violated and does
not violate any duty that it has under the Railway Labor
Act by refusing to engage in national handling with respect
to the crew consist dispute.
I see no reason to retry that issue before this Court. I
recognize that the North Western Railroad says that it was
not a party [26] to the Atlantic Coastline decision as a
formal party, but it has served the identical notices that
the Boston & Maine, Atlantic Coastline and Des Moines
union had served. It had made the identical demand for
national handling. It has gotten the identical response
from the union of refusing it. The courts upheld the
union. I see no point in relitigating the Atlantic Coastline
case here.
If it will help the Court, as soon as it will get here, I will
furnish the Court with a transcript of the testimony Mr.
Wolfe is now giving that he gave in the Atlantic Coast-
line case. It will save us sitting here listening to this
again. * * *
THE COURT: I will accept your offer to present it to
me, and I will take it home with me and read it tonight
and we can go on to some other subject.
+ a a * &
[27] MR. SCHMIEGE: I don’t understand counsel’s
objection.
THE COURT: I will read it all, though.
MR. SCHMIEGE: The objection that has been sustained
is that we avoid material that was discussed in the Atlantic
Coastline case.
THE COURT: That is right, on his representation that
he will present me the transcript.
MR. HALEY: I have the joint appendix as well. I be-
lieve it includes it all. It was agreed that that was sufficient.
THE COURT: All right. * * *
70
MR. SCHMIEGE: Well, at this point, then, your Honor,
could I introduce certain exhibits that were also exhibits
in the Atlantic Coastline case.
~ * © * o
[29] MR. DEMPSEY: I should like to make a few com-
ments about the relevance of the Coastline litigation and
the Nashville litigation because Mr. Haley has raised the
matter.
Now, this case is different than either of those. I think
we ought to underscore that right at the outset. * * *
{30] Now, I put to one side a principal issue, and that is
the good faith bargaining question as it relates to assum-
ing a predetermined position and not deviating and being
unwilling to engage in negotiate in meaningful negotia-
tions. Another witness will speak of that more prominetly
than Mr. Wolfe. And that is sort of, more or less, a garden
variety kind of good faith bargaining issue that turns on the
facts of the case.
The other aspect, however, of the good faith bargaining
argument in this case does relate in a very important way
to the kinds of issues that were litigated in the Coastline
case in the District of Columbia. This brings into play the
question of national as against local handling of railway
labor disputes.
Now, Mr. Haley suggests that what we are doing here is
relitigating Coastline. That in a sense is true. But in a
much more important sense, it is not true. We are not
simply here asking this Court to come to a conclusion [31]
different with respect to the C&NW than the District of
Columbia Court of Appeals came to with respect to the
several roads involved in that litigation.
What we are saying has, rather, two aspects to it in con-
nection with the Coastline litigation.
In the Coastline case, the Court decided, as your Honor
is aware, that in the crew consist controversy, the union was
free to engage in local handling because in the Court’s judg
ment based on the evidence of record in that case, local
handling—that is, handling with a view toward local consid-
71
tions as opposed to national uniformity—would be the
st promising method of resolving this dispute peacefully.
Now, we say in the first place as to that that our evidence
1 show in substance that the union has not followed the
indate of the Coastline decision; that it, indeed, has not
gained on a local basis with a view toward local consid-
tions, but rather has been governed by considerations of
mpelling national uniformity.
[32] But beyond that we say this: In substance, what
t argument is with respect to Coastline is that had the
trict of Columbia court had the benefit of the unfold-
of the facts of negotiations that occurred in the wake
the Coastline decision on the principles that it applied
arriving at its result, its result would have been the oppo-
That is to say, if instead of Mr. Luna testifying in Coast-
> as he did, that this was a matter as to which National
formity was not necessary, but rather had he testified
t the union would be looking in negotiations toward
uring substantial national uniformity, then it seems to
quite evident that one simply has to read the Coastline
ision and see that the result there would have been dif-
pnt.
$0, in the sense that we are relitigating Coastline, we are
ng it on the basis of considerable subsequent actual bar-
ning experience. We suggest that that is highly relevant
this case.
33] Now, of course, we are entirely agreeable to short-
ting the introduction of testimony, so, therefore, we cer-
ily will follow your Honor’s suggestion that so far as the
tory behind the 1959 services of notices is concerned, that
Wolfe gave in the Coast Line litigation, we are prepared
rely upon the transcript of the Coast Line case as well
upon Mr. Wolfe’s affidavit which is on file here. But
t is not by any means to suggest that that background
1ot relevant to the arguments that we advance to this
art.
* * *
72
Now so far as the Nashville litigation is concerned I would
just like to make one observation: As Mr. Haley has said,
that case was tried for about a week. The restraint there
[34] against the strike was extended several times. It finally
amounted to about a month’s restraining order. The case
was never actually decided because of an interim settlement
between the parties.
+ * * * *
In connection with the litigation, however, in describing
the litigation, Mr. Haley advanced to your Honor as a rez
son for dismissing the complaint the argument which |
think it fair to say he pressed most vigorously in Nashville,
and that is the argument basically that an injunction will
not lie to enforce Section 2 First after exhaustion of the
formal procedures of the Act, that is, after mediation has
been completed and after an emergency board has settled—
THE COURT: That is really the question here, isn’t it?
MR. DEMPSEY: Yes, it is, but the important [35] inter-
vening fact, that is intervening between Nashville and this
trial is that that issue has been decided against Mr. Haley’s
position by the Fourth Circuit Court of Appeals in the Pied-
mont case decided last September. The case is cited in our
brief. I believe your Honor has been supplied with copies
of it. I did not want to let the occasion pass without draw-
ing your Honor’s attention to that with respect to that cen-
tral legal issue. Thank you.
[36] THE COURT: You may proceed with the further
examination of this witness.
* * 7 * *
[40] MR. SCHMIEGE: Before we broke off, your Honor-
MR. HALEY: Excuse me before you get going.
May the record show that I now hand to the Court, which
I have shown to Mr. Dempsey, a copy of the Joint Appendix
in Brotherhood of Railroad Trainmen v. Atlantic Coastline
Railroad Company, No. 20718 United States Court of
Appeals for the District of Columbia.
THE COURT: Pass it to me. I will have it stamped
and marked.
*
* * * *
73
42] THE COURT: It is being made a part of the rec-
0! here.
a * * * *
[46] BY MR. SCHMIEGE:
). Mr. Wolfe, will you explain to the Court or define
fcthe Court the term “crew consist’? A. Yes. In the
Toad industry when we refer to “‘crew consist”’ we have
iMind the number of employees in a road train crew or
aard train crew. Now when we say “1 and 2” we mean
@ynductor and two brakemen. If it is in yard service the
CGuctor is some times referred to as the foreman and the
bkemen are sometimes referred to as helpers. When we
“a crew of 1 and 1,” we reduce the number of brake-
™ or yard helpers from 2 to 1, otherwise my definition
of and 2 is exactly the same for | and 1.
> * * * *
BY MR. SCHMIEGE:
_ 49] Q. Mr. Wolfe, was the matter of crew consist
ved in any national movements prior to 195°? A. Yes,
&% consist was involved in the [50] national movements in
15, 1949 and 1953.
* * * * *
. Did any of those disputes proceed to Emergency
Boas? A. Yes, they did, but the time limitations of the
y Labor Act are such that it yust wasn’t possible for
mergency Board within the time [51] limits of the
‘4% investigate those matters. There were also, of course,
I ose cases rules, notices which were served by the unions.
Th, were all treated the same.
* * - * *
'8] Q. Will you discuss the bargaining that took place
aft the commission made its report?
* * * a *
whe! Q. Would you tell the Court, please, Mr. Wolfe,
. action the union took under the Railway Labor Act
PM to the expiration of the award? A. Well, the union
“Tq notice in July 1965 of a desire to negotiate agree-
's which would require the employment of a conductor
© brakemen in all classes of road and yard service.
74
Q. When did the award expire? A. The award expired
on January 25, 1966.
Q. So that notices were served during the term of the
award? A. Yes, they were.
Q. Would you explain what those notices proposed on
crew consist? A. A uniform crew consist of one conductor
and two brakemen.
Q. How did this 1965 notice compare with the crew
consist portion of the union’s 1960 notice? A. Identical.
* om * * *
[89] Q. How were those 1960 notices handled? A. On
a national basis before the Presidential Commission, Emer-
gency Board 154 and Arbitration Board 282.
Q. How many railroads received this 1965 notice on
crew consist? A. Well, there were about 80 major rail-
roads.
The railroads in the east that entered into the so-called
Luna agreement did not receive such notices.
Q. Did these notices vary at all in content from railroad
to railroad? A. No. They were substantially identical.
They all would have required a crew of | and 2.
Q. What position did the railroads that received those
notices take on their legality? A. Well, we took the posi
tion—and I had not then retired—that the notices were pre-
mature, that they were being served during the life of [90]
Arbitration Award 282, and we had no duty to bargain
under those circumstances. _
Q. What action did the railroads take under the Railway
Labor Act when it received those notices? A. Well, we
were certain that the question as to the life of the award
would inevitably become a subject of litigation. So, in
order to protect ourselves, we served a counter-proposal.
Now, if we were successful in our endeavor to prove to
the Court that the B.of R.T. notices were premature, well,
then we conceded that ours were, likewise, premature.
Q. Well, at what time were our notices served? A. In
December of 1965.
- °°»&
75
Q. So, they were served during the term of the award,
too? A. Yes, they were.
* * * * a7
[92] MR. DEMPSEY: After the adjournment yesterday
we went back to the drawing boards and made a determined
effort to streamline our presentation of oral testimony so
that we could, if possible, cut back on the trial time. We
are going to do that with the remainder of our testimony.
There are certain risks of breaks of continuity in our pres-
entation associated with that, but I think if I could just
sketch very briefly where we are and where we propose to
go, that framework will become apparent and the parts of
our affidavits that we won’t be putting on by way of oral
testimony will be in focus. Of course, the witnesses are
available for cross examination on anything in our affidavits.
[93] Now your Honor will recall that Mr. Wolfe yesterday
spent a good deal of time sketching in the historical back-
ground of the crew consist dispute, which for all practical
purposes—
MR. DEMPSEY: We can mark the beginning of that his-
tory of the service in 1959 the notices that led to the litiga-
tion before your Honor in the Baltimore and Ohio casein
which your Honor’s judgment was affirmed by the Supreme
Court. Now those historical materials are relevant to our
national handling argument, but they are not as directly rele-
vant as the events which have occurred that we are about to
come to and to some extent we have gotten into already with
respect not to these 1959 notices and that litigation, but
rather to the notices that were served in 1965 and to the
period of time after the services of those notices because that,
after all, the question here bears upon what happened in this
more recent segment of time and not what happened before
the bringing of the Baltimore and Ohio case.
So now that Mr. Wolfe has traced the [94] history of
the older dispute which is a discrete dispute and a separate
one, through the Arbitration Award, Arbitration Board No.
282, we now move into the period that is directly related
to this case. In detailing what has happened in this recent
period with respect to the notices that gave rise to this dis-
76
pute, Mr. Wolfe will be concentrating upon bringing to the
Court’s attention the kind of representations that were
made by the Union in the Atlantic Coastline litigation with
respect to the kind of bargaining that should be engaged in,
that is, local bargaining, not the view toward national uni-
formity. And then in the last part of his testimony he will
be talking about his experience with respect to how the
union actually did negotiate once it had the Coastline judg
ment in hand.
[95] There are parts that will be omitted in this history,
but they are set forth in the affidavit. Now then, when we
follow with our next witness, which will be Mr. James R.
Wolfe, the vice-president of the Chicago North Western Rail-
road, then we will be talking about the actual negotiations
on the Chicago & North Western during this recent period
associated with these recent notices, and there, of course,
we are in the area of the evidence that is the most directly
related to the issue before the Court.
Now, in Mr. Wolfe’s testimony, Mr. James R. Wolfe’s
testimony, we will be compressing very sharply a good deal
of the material in the affidavits that goes to the actions
that related to the Chicago & North Western in these prior
periods. We are just going to rely on our affidavit for that
and upon the first Mr. Wolfe’s testimony. Because insofar
as that previous history is concerned the position of the
Chicago & North Western was for all practical purposes the
same as the position of all other railroads in the country.
As I say, in omitting some pieces of oral testimony we do
not mean to depreciate their importance, we simply do
that in [96] an effort to expedite the matter and get the
most directly relevant oral testimony out before your Honor
and not have the case prolonged unduly. I think that if
your Honor has no questions about that, we will proceed,
then, with Mr. Wolfe’s testimony.
MR. HALEY: If the Court please, I don’t want to assume
or try to tell the plaintiff how to try their lawsuit except
to say this; that I continue to urge upon the Court that the
Court of Appeals for the District of Columbia Circuit and
77
the Supreme Court obviously did not decide the Atlantic
Coast Line case on the basis of anybody’s testimony. They
were construing the Railway Labor Act, the requirements
of it. I can hardly believe that it is relevant at all—or cer-
tainly, it seems like an erroneous concept that the decision
in the Coast Line case was induced by Mr. Luna’s testimony
or by Mr. Wolfe’s testimony. I took it that from the deci-
sion of the Court it was the Court’s own conception of the
requirements of the Railway Labor Act, something that
hasn’t changed or been changed since 1934. So, if they
want to put it in, and the Court wants to hear it, I am per-
fectly [97] willing to sit here. But I just urge it has no
relevance.
THE COURT: I do not know how relevant it is, that
is the thing I was thinking of is how relevant it is what
happened on those railroads. What I am coming to is what
has happened here.
MR. HALEY: Of course, what happened on those rail-
roads was, as Mr. Dempsey said, precisely the same thing
happened on the North Western as happened on the Coast
Line.
* * * * *
[98] MR. HALEY: We contend that is not relevant be-
cause mediations terminated and the processes of the Act
have been exhausted. Of course, 1 am away from home
and I would like to go home, but I am just as happy to
stay right here. 1 enjoy the courtroom. I think we have
got a question of law here more than a question of fact.
MR. DEMPSEY: Your Honor, the relevance of the tes-
timony, in the first place, I don’t think it is inappropriate
to suggest that the Court in many cases bases its decision
on the evidence of record, that is what we are suggesting
here. But the relevance, the immediate relevance—
THE COURT: Yes, what is the relevance of what hap-
pened?
MR. DEMPSEY: Let me address myself to that, your
Honor.
78
What the evidence will show is that in the Coast line liti-
zation, the Union witnesses testified that the only appropri-
ate way to bargain on the crew [99] consist matter is by
way of negotiations based on local conditions, that is, what
the curves are, what the curvatures of the tracks are, all of
those things that are associated with the local circumstances
on the railroad. And that a pattern of national uniformity
with respect to crew consist rules was not a practical way
to deal with the problem. Now then—
THE COURT: What you think is you want to offer that
to show national pattern and then show what took place
here; is that what you are seeking to show?
MR. DEMPSEY: What we want to show is that is what
the Union representative said then, then on the Chicago
North Western. We are not going to talk about negotiations
on other railroads to any significant extent. We are going
to concentrate on negotiations on the Chicago and North
Western.
What we propose to show is that when the Unions secured
that judgment and was in the position to engage in the
whipsaw strike tactics, which it did engage in in order to
topple the defenses of the railroads one by one, when it
had that judgment it turned around and in negotiations on
the Chicago [100} North Western when the Chicago North
Western representative said all right, now we think there
should be national handling of this dispute, but if you are
going to negotiate on our property alone, then you must
negotiate in terms which you said these negotiations ought
to take place, that is by giving consideration to the situation
on the Chicago North Western. But :ather than do that we
propose to show what the union did was to take from the
outset and without any deviation, the firm position that no
solution would be acceptable on the Chicago North Westem
except one that accorded with the national pattern of agree-
ments that have been extracted from the rest of the rail-
roads in the industry. Now that is what we propose to show.
THE COURT: Well, let us proceed even though it may
be irrelevant. Let us go ahead and get it in.
” ” * * ~~
79
(101) JAMES E. WOLFE
DIRECT EXAMINATION (Resumed)
LY MR. SCHMIEGE:
Q. Mr. Wolfe, when we finished yesterday you had just
testified that in December of 1965 the railroads served
counter-notices, and you explained why those notices were
served.
Would you now tell the Court, please, what those notices
proposed regarding crew consist? A. Those notices pro-
posed that the carriers would have the right to determine
the number of employees who would be employed in road
train and yard crews.
[102] Q. What did those notices propose regarding the
national handling of that dispute? A. The railroads pro-
posed that if there was no disposition of the issues arising
out of the notices, that the dispute be handled on a national
basis.
Q. How did these 1965 notices compare with the crew
consist portion of the notice that the carriers had served
back in 1959? A. They were identical except the 1965
notices had nothing to do with self-propelled machines.
Q. How many railroads served this 1965 notice on the
Brotherhood of Railroad Trainmen? A. 80 railroads served
notices on the union.
Q. Did this notice vary at all in content from railroad
to railroad? A. They were identical notices.
Q. What reply did the union make to that part of the
notice that requested national handling? A. They refused
to so handle it.
Q. Were there any conferences held on individual rail-
roads over these notices? A. Yes, there were initial confer-
ences as required by law.
& > * = -
[114] Q. Mr. Wolfe, after the Jacksonville agreement
was made, did any other railroads settle the crew consist
80
dispute? A. Yes, there were several railroads that disposed
of the dispute.
Q. Were there any more strikes over the crew consist dis-
pute? A. The Chicago Belt Line was struck in July 1968.
That strike lasted 101 days, and the L&N was struck in
November of 1968.
Q. After these strikes occurred, what action did the Pres-
ident take under the Railway Labor Act? A. The President
exercised the discretion vested in him under Section 10 of
the Railway Labor Act, and appointed Emergency Board
No. 172, and that Board was to hear and make recommen-
dations on the dispute involving the L&N, the Belt Railroad,
and the Illinois Central which was threatened with a strike.
a * am + 7”
£115] Q. What sort of proceedings did the emergency
board conduct? A. They had evidentiary hearings and
then mediation.
*” * * * *
{117} Q. Did negotiations resume after the Board made
its report? A. I understand they did.
Q. Did you participate in those negotiations? A. Yes,
I met with Mr. Luna on December 23, 1968.
Q. And in what capacity were you when you met with
him? A. Well, I was sort of an unattached representative
of the three railroads.
{118} Q. You had been engaged by those railroads to
represent them in those negotiations? A. Yes. They knew
that Mr. Luna and I had been good friends for years, and
they thought I might be helpful in reaching an understand-
ing which wouid dispose of those issues.
Q. Would you tell us what position Mr. Luna took in
those negotiations? A. Well, we were not able to make
any headway, and I asked Mr. Luna if I was at liberty to
inform representatives of the railroads as to his attitude in
regard to the disputes that were before us, and he said he
had no objection whatever to me so informing those peo-
ple. Mr. Luna told me that a settlement on those railroads
could not be reached unless they agreed to settlements, to
agreements subst
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