Appendix — Chicago & North Western Railway Co. v. United Transportation Union

Supreme Court brief1971

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~ 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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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

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—_— 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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