# Appendix — Chicago & North Western Railway Co. v. United Transportation Union > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0290%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1971 - **Citation:** 402 U.S. 570 ## Text (i) ~ IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1970 No. 189 A a =< S me ibs 28 se oo FF tS 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 SERSBRSRS SAA SSOASPASAOBRHRSOEHRE CHR SEO BDH ®@ PSS kReePORSESBARAS HS HRHAEREAZAERD RESO eR SCHE BER ED 2 i WR ee Oe ee ee oe ee ee ee ee ee ee ee Oe So eee es ee oS ee we ee oe ee ee ee ee eee ee ee ee 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 wo we Oo © =| -—, ar sSermomemrenktkontseantke = 2 t a 5 21 way Labor Act, between January 25, 1964, and January 25, 1966, . . . did not become effective under the Railway Labor Act until January 26, 1966.” Nevertheless, the Mediation Board treated the BRT’s prior invocation of mediation as having been proper, and in April, 1966, the Board proffered arbitration to four carriers, the Atlantic Coast Line Railroad Company, the Boston & Main Corpora- tion, the Missouri Pacific Railroad Company, and the Louis- ville & Nashville Railroad Company. 46. On April 12, 1966, these four carriers filed a Motion For Supplemental Relief in the Akron litigation. In that motion the carriers requested an order declaring that the crew consist rules could not be changed until the initial confexences between the parties prescribed by Sections 5 and 6 of the Act were held after the expiration of Award 282 and until the other procedures of the Act were also exhausted subsequent to such conferences. On May 31, 1966, the District Court granted the carriers’ motion. The Court ruled that the notices of the parties were not effec- tive until January 26, 1966; that until this time the parties were under no obligation to confer; and that meetings held before January 26th did not constitute “conferences” within the meaning of Sections 5 and 6 of the Act. Therefore, the Court concluded that neither side could resort to self-help; that conferences should be commenced within a reasonable time after the entry of the order; and that recourse to the Mediation Board could not be had until conferences ful- filling the requirements of Sections 5 and 6 of the Act were held. Two days later, June 2nd, the Mediation Board “urged the parties”’ to hold such conferences promptly and advised that it was continuing the cases which had been docketed before it. 47. As the dispute was considered in conference on the different railroads following the Akron & Barberton Belt litigation, the carriers again urged the BRT to agree to national handling of the dispute, and again the same nega- tive answers were given by the BRT on each railroad. 22 There was no question, of course, that the actual handling of the dispute on the BRT’s side was national and that Mr. Luna was directing the progress of the dispute himself on a uniform basis on all carriers. Thus, on June 18, 1965, Mr. Luna wrote all his general chairmen on individual roads setting forth the BRT’s position as to the effect of the expiration of Award 282, directing the service of the new uniform Section 6 notices, and attaching the text of the notices’ demand for a uniform one-and-two crew consist rule. These, then, were the notices which were served identically on each of the more than eighty carriers com- mencing in June of 1965. When the carriers responded, on July 9, 1965, Mr. Luna wrote his general chairmen again and enclosed a uniform draft reply to be sent to all roads. Another uniform reply to all the carriers was drafted and sent to the general chairmen by Mr. Luna on October 5, 1965. When the carriers served their counter-notices in December of 1965, Mr. Luna again dictated a uniform response for the general chairmen in a letter to them on December 28, 1965. Again, on January 6, January 14, March 18, March 31, and June 9, 1966, Mr. Luna wrote to the general chairmen on the individual railroads with the text of identical letters to be sent out to all the carriers in succeeding phases of the dispute. Thus, although Mr. Luna professed to have come to the new determination that local conditions required crew consist rules to be negotiated on a carrier-by-carrier basis, the dispute continued to be itan- dled in fact on a uniform, national basis. 48. On August 29 and 30, 1966, I met in Chicago with Mr. Luna and with Mr. Leverett Edwards, Chairman of the National Mediation Board, at Mr. Edwards’ suite in the Blackstone Hotel, for the purpose of discussing possible ways of resolving the dispute over the BRT and carrier crew consist notices mentioned above. In particular, we sought to determine whether there was any common ground between the stated position of the BRT that these notices were not an appropriate subject for national handling and 23 the position of the carriers that they were. During these meetings, Mr. Edwards suggested, and Mr. Luna and I orally agreed, without waiver of the position of either side with respect to national versus local handling of the dispute, that a series of “test” negotiations would be conducted between representatives of six selected carriers and the NRLC on the one hand, and those of the BRT on the other, in order to see whether any principles or guidelines might emerge which could serve as a pattern for agreements on other railroads or for a national agreement to settle the entire crew consist dispute. It was agreed that these nego- tiations would be held at the headquarters of each railroad selected, would be conducted by a mediator to be assigned to each railroad by the National Mediation Board, and would be attended by representatives of each railroad, the NRLC, and the BRT. It was agreed that Mr. Luna, Mr. Edwards, and I would meet again at the conclusion of these “test” negotiations to discuss whether anything had been accomplished which would point the way to a settlement of the entire crew consist dispute, and that, until this pro- cedure was completed, the National Mediation Board would not terminate its services on the three railroads as to which proffers of arbitration had been made by the Board. It was agreed that these “test” negotiations would begin on September 13 on the following railroads: The Boston & Maine Corp., Atlantic Coast Line RR., Southern Ry. Sys- tem, Chesapeake & Ohio Ry., Missouri Pacific Lines, and Union Pacific RR. * * * * * 58. Although the BRT pursued a variety of tactics in the different negotiations, certain common patterns emerged from all the discussions. The BRT uniformly refused to recede from the sweeping proposal of a minimum crew con- sist of one conductor and two brakemen, although the car- riers were willing to discuss areas of compromise. In gen- eral, the BRT refused even to discuss the issues with respect to mainline through freight assignments, although the agree- ment between Messrs. Luna and Edwards and me expressly 24 contemplated that all the issues raised by the parties’ Sec- tion 6 notices would be discussed, and the notices on both sides included proposals affecting mainline through freight assignments. The BRT showed, by its refusal to consider the impact of the parties’ proposals upon particular crews on each road, that the BRT was seeking a uniform national crew consist rule, despite assertions on other occasions that the issue of crew consist is essentially local. At no time was the BRT willing to discuss the possible terms of national guidelines to be applied in the settlement of the crew con- sist dispute, although Messrs. Luna and Edwards and I had clearly agreed that that would be the principal purpose of these test negotiations. The BRT rebuffed all efforts by the carriers to conduct the negotiations in terms of con- sidering what revision, if any, might justifiably be made in the procedures and guidelines established by Award 282, or in the crew consists specified in agreements or special board awards made pursuant to Award 282. That the goal of the BRT was to abolish everything that was accomplished under Award 282 was shown by the consistent refusal to agree that the crew consist agreements and special board awards might be maintained, by the failure to advance any evidence to show that conditions since the making of these agreements and awards have changed in such manner as to justify revision of the consist of crews affected by the Award, and by such extreme recalcitrance as unwillingness to consider even a date which corresponded to the effective ‘date of Award 282. 59. After the negotiations on the six carriers were recessed, there remained the last step of the procedure agreed upon by Mr. Luna, Mr. Edwards, and me in our Chicago meetings of August 29-30—the post-negotiation meeting between the three of us to discuss the results of the negotiations and the possible development of guide- lines. * * * Mr. Edwards then told me that he had no choice but to terminate the services of the NMB on the three railroads, Atlantic Coast Line, Boston & Maine, and 25 Des Moines Union; and on October 4 the NMB did notify these carriers that its services were terminated. * * a ~ * 61. After the NMB had terminated its services in the crew consist disputes involving the Atlantic Coast Line, Boston and Maine, and Des Moines Union, these three car- riers on November 1, 1966, filed suit in the District of Columbia for declaratory and injunctive relief against the BRT. Atlantic Coast Line RR., Et Al. v. Brotherhood of RR. Trainmen, Civil Action No. 2908-66 (D. D.C.). These plaintiffs alleged in part that the BRT had failed to bargain in good faith and in accordance with the Railway Labor Act by refusing to permit national handling of the crew consist dispute. * * * 62. The BRT took the position in the Atlantic Coast Line case that local handling of the crew consist issue was essential because of the need for local rules to meet condi- tions prevailing upon each individual railroad, and also because conditions varied greatly from carrier to carrier and even from location to location on a single railroad. * * * 63. The District Court rendered its opinion in Atlantic Coast Line case on January 16, 1967. Atlantic Coast Line RR. v. Brotherhood of RR. Trainmen, 262 F. Supp. 177. It held that the Railway Labor Act required the Brother- hood to participate in national handling of the 1966 phase of the crew consist dispute and that, because the Brother- hood had refused to do so, it had not exhausted the pro- cedures of the Act and could not engage in the threatened strikes. 262 F. Supp. at 189. * * * 64. The BRT appealed this decision to the District of Columbia Circuit, and that Court on September 6, 1967, reversed the trial court. 383 F.2d 225. * * * The contro- versy Over national handling ended finally on January 15, 1968, when the Supreme Court denied certiorari. 389 U.S. 1047. 65. Shortly thereafter, in early February, 1968, the BRT struck the Atlantic Coast Line, the Missouri Pacific, 26 and the Texas and Pacific railroads, whose crew consist dis- pute with the BRT had been released from mediation. Con- sequently, on February 9, 1968, these three roads and the Southern Railroad, whose dispute with the BRT had also been released by the Mediation Board, signed an agreement with the BRT in Jacksonville, Florida, to settle the crew consist dispute on those carriers. The “Jacksonville Agree- ment,” as it has been called, called for immediate restora- tion of 50% of the crews which these carriers had reduced pursuant to the Award of Arbitration Board No. 282, and for further immediate negotiation over the remaining 50%. If within 34 days the parties failed to agree on a disposi- tion of the remaining 50%, the parties were again relegated to self-help—that is, the BRT could strike, and the carriers could implement their proposed rules. The ultimate result was the restoration of all but a handful of crews on these carriers to a one-and-two basis. 66. In the wake of the Jacksonville settlement, agree- ments were signed on a number of other carriers. As I had by that time retired as Chairman of the National Railway Labor Conference, I cannot speak with personal knowledge respecting the negotiations that led to these agreements, except to the extent indicated in the following paragraphs of this Affidavit. My understanding, however, is that the agreements cn these other carriers were substantially iden- tical to the Jacksonville agreements—that is, the pattern was the casting aside of the scores of arbitration awards and agreements made pursuant to P.L. 88-108 and the restora- tion of all but a token number of crews to a one-and-one basis. If that is so, as I believe it to be, then, based upon my lengthy experience in these matters, my firm opinion is that these carriers entered into such agreements not out of conviction that they represented a just resolution of the controversies, but out of a fear of exercise by the BRT of the “‘whipsaw”’ strike tactics it had employed against the carriers that entered into the Jacksonville agreement. 27 67. Some railroads resisted to the point of strike. Dut“ ing 1968 the National Board released the crew consist dis- putes with the BRT on three carriers—the Chicago Belt, ‘he [linois Central, and the Louisville & Nashville. The BRT thereupon again put into play its “whipsaw” tactics. In July the BRT struck the Chicago Belt, and in November it struck the Louisville & Nashville, both strikes ending only with the appointment of Emergency Board No. 172 by President Johnson on November 6th. When Emergency Board No. 172 held hearings in Washington, I testified on behalf of the three carrier parties, and I later assisted the carriers in mediation sessions with the BRT conducted by the members of the Emergency Board after the hearings were closed. 68. The Report of Emergency Board No. 172 urged the parties to resume bargaining over their respective crew con- sist proposals. As prior public agencies had done—the Presidential Railroad Commission, Emergency Board No. 154, Arbitration Board No. 282—this Board recommended the adoption of overall guidelines to govern proper crew size determinations and then the application of those guide- lines on a local basis to particular crew assignments. * * * 69. On December 23, 1968, shortly after Emergency Board No. 172 had issued its Repcrt, BRT President Luna and I met at my request at the Union League Club in Chicago. We discussed our previous exploratory talks in Washington after the close of hearings by Emergency Board No. 172, but we could not make any progress. Later in our discussion Mr. Luna stated unequivocally that a settle- ment of the crew consist dispute on these carriers could not be effected unless the railroads accepted the conditions of the so-called Jacksonville settlement. I told him in response that I did not think that that position met the test of good faith bargaining, especially in the light of his statements made on many occasions that any settlement arrived at locally which his local people could live with would be acceptable to him. I then asked Mr. Luna if I 28 was free to tell the three carriers that his position was that any settlement which did not conform in almost exact detail to the Jacksonville settlement would be unsatisfac- tory to him and that he would not permit his local repre- sentatives to settle on that basis. Mr. Luna said that I was at liberty to tell the three roads that that was his position. 70. Thereafter, on January 13, 1969, the BRT struck the Louisville & Nashville again without notice. Although the strike was temporarily restrained by the United States District Court for the Middle District of Tennessee, on February 10, 1969, the railroad signed an interim agree- _ ment similar to the first phase of the Jacksonville pattern agreement which I have mentioned above, and on May 26, — 1969, a final crew consist agreement which was also similar to the Jacksonville agreement. On or about April 3, 1969, a final agreement was made on the Chicago Belt which con- formed to the Jacksonville Agreement. Then on April 8, 1969, the BRT also struck the Illinois Central without notice; and on April 13 this carrier too signed an interim | agreement similar to the first phase of the Jacksonville pat- tern. {Subscription and notarial certificate omitted in printing] UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION [Caption omitted in printing] AFFIDAVIT OF JAMES R. WOLFE ON BEHALF OF CHICAGO AND NORTH WESTERN RAILWAY COMPANY James R. Wolfe, of full age, being duly sworn according to law, upon his oath deposes and says: 1. I am the Vice President - Labor Relations of the Chicago and North Western Railway Company * * * 2. The affidavit of my father, Mr. James E. Wolfe, for- merly the Chairman of the NRLC, on behalf of the C&ANW recites the general history of the crew consist dispute since 29 its inception in the 1950’s. (Prior to that date, trains in this country were generally manned by an “engine crew” consisting of an engineer and a fireman, and a “train crew” consisting of a conductor and two brakemen.) My affidavit intends to set out the facts relating to the crew consist dis- pute, i.e., the dispute relating to the size of “train crews”’, with the former Brotherhood of Railroad Trainmen (here- inafter referred to as the “BRT”), and its successor, the United Transportation Union (hereinafter referred to as the “UTU”), as the dispute has developed on the C&NW since the rendition of the Award of Arbitration Board No. 282 in the fall of 1963. Prior to that time the C&NW had always been a part of the national dispute with the BRT and other unions over crew consist, had served the Novem- ber, 1959, carrier notices under Section 6 of the Railway Labor Act proposing to commit the issue of train crew size to managerial discretion, had been served with the BRT’s and other unions’ Section 6 notices of September, 1960, proposing a uniform national rule requiring a minimum train crew of one conductor and two brakemen on all trains, had participated in the proceedings before the Presidential Railroad Commission and Emergency Board No. 154, and was a party before Arbitration Board No. 282. 3. As is explained in Paragraph 18 of the Affidavit of James E. Wolfe, Section III of the Award of Arbitration Board No. 282 relating to crew consist prescribed a national procedure for both carriers and unions to follow for chang- ing the size of existing train crews on individual railroads and moreover laid down national guidelines to be followed locally in determining the appropriate size of particular crews on individual railroads. Pursuant to the Award, a party desiring a change in the number of men on a given crew or on a number of crews could serve written notice on the other party designating the crews sought to be changed. The Award then required the parties to negotiate on the matter promptly. If they agreed to increase or decrease the number of men in the train crew, that ended the controversy. (Award § III(A)). If agreement failed, 30 the party proposing the change could submit the issue to binding arbitration by a special board of adjustment created on that railroad. (Award § III (B)). 4. After the rendition of the Award of Arbitration Board No. 282 in November, 1963, and before it became effective in January, 1964, the C&NW reviewed and studied the work of its train crews in both road and yard service to determine whether the Award’s guidelines authorized changes in crew size. The C&NW conducted studies in each of the individual districts into which the carrier is divided for purposes of labor relations matters. Thereafter the carrier served notices under Section III(A) of the Award of Arbitration Board No. 282 upon those organizations which represented brakemen and helpers in road and yard service on the C&NW, i.e., the BRT in most instances and the Switchmen’s Union of North America (“SUNA”) in one. (Both the BRT and the SUNA have since merged with two other labor organizations into the UTU, but there has been no significant change in the personnel of these organizations involved in this dispute.) By these notices the carrier generally asked that train crew reductions be made in all yard crews from a minimum consist of one con- ductor (generally denominated “foreman” when in yard service) and two brakemen (“‘helpers”’ in yard service) (i.e., “1 and 2’’) to a consist of one conductor and one brake- man (i.e., “1 and 1”’). In branch line road service where Award 282 also established procedures for crew changes, the carrier’s notices generally proposed reductions from a crew of “1 and 3” to a crew of “1 and 1”, or from a crew of “1 and 2” to a crew of “1 and 1.” The negotiations which followed between the C&NW and the BRT and SUNA with some exceptions failed to result in agreements to dispose of the crew consist dispute. 5. Consequently, following the breakdown of negotia- tions over the C&NW crew consist notices in the carrier’s several districts, a number of special boards of adjustment were created to arbitrate the dispute pursuant to the pro- es. i. a a ee eee a ee ie “eee > *» = — cA —_— as 7 fF & Sc fo we :t;woe se ss Bp 31 cedures established by Section III(B) of Award 282. These special boards, composed of one carrier member, one union member, and a neutral, held hearings for the taking of oral and written evidence, considered written briefs, and neard oral argument. Much attention was paid by both the par- ties and the neutral to the issues of safety and work bur- den—whether the carrier’s proposed crew reductions would result in unsafe working conditions for the men or place an undue work burden upon them. In nearly all cases, the special boards resolved these issues of safety and work bur- den, along with the other guidelines specified by the Award of Board No. 282, in favor of permitting the reductions sought by the carrier. * * * 6. In three instances the carrier’s crew reduction propo- sals were settled by agreement with the BRT * * *. In addition, the Chicago Great Western Railway Company, which has since been merged into the C&NW, made a crew consist agreement pursuant to the procedures of Award No. 282 with the BRT on August 6, 1964. * * *. 7. The Affidavit of James E. Wolfe has described in gen- eral the efforts of the BRT to undo the accomplishments of both the Award of Arbitration Board No. 282 and the special board of adjustment awards and crew consist agree- ments which followed. The C&NW was not excepted. On July 3, 6, and 7, 1965, the BRT served upon the C&ANW and upon the former Chicago Great Western the union’s new Section 6 notices which proposed a uniform rule requiring a crew consist of “‘] and 2” on virtually all road and yard crews on the carriers’ systems. On some road crew assignments the BRT asked for a consist of “1 and 3.” Copies of the notices served by the BRT upon the “C&NW Proper” District on July 6, 1965, are attached hereto as Exhibits A (notice relating to road service) and B (notice relating to yard service). These demands, of course, if agreed to by the carrier, would nullify completely the manning reductions—roughly 200 jobs—which the above- mentioned awards and agreements accomplished. 32 8. When the nation’s rail carriers took the position that the BRT’s notices were barred by the Award of Arbitration Board No. 282, the union invoked the services of the National Mediation Board. The Board docketed the dis- putes over the notices served by the BRT on the then four districts of the CRNW on October 4, 1965, as NMB Case Nos. A-7523 (“C&NW Proper” District), A-7524 (“M&StL” District), A-7525 (“CStPM&O” District), and A-7526 (“L&M” District). Subsequently the dispute over the notice served by the BRT on the former Chicago Great Western was docketed by the NMB as Case No. A-7645. Neverthe- less, no conferences or mediation sessions were held on any of these BRT notices in 1965. 9. On or about December 24, 1965, most of the railroad industry, including the C&NW as to its several districts, served the national Section 6 notices upon the BRT. With these notices the C&NW proposed the elimination of all existing crew consist rules and the adoption of a new rule which would commit the matter of crew size to managerial discretion, i.e., the same proposals which the railroad indus- try served in 1959, and which were finally disposed of by the Award of Board No. 282. A copy of the C&NW’s notice served on the ““C&NW Proper”’ District is attached hereto as Exhibit C. 10. The carrier’s Section 6 notice of December 24, 1965, also proposed that if the parties could not settle the crew consist dispute in initial conferences on the property they would commit the dispute on the C&NW, along with those pending on the other railroads, to national handling in accordance with established practices in the railroad industry. However, the BRT responded on December 12, 1965, by agreeing to meet in conference on the carrier's notices, but refusing to engage in national handling. * * * 11. When the parties met in conference on January 18, 1966, they did not discuss the merits of the crew consist dispute. Instead the BRT insisted that the purpose of the meeting was only to discuss the carrier’s notices and that a 32S 33 the union would refuse to handle the whole crew consist dispute on this railroad together. * * * The BRT also again refused to enter into national handling of any phase of the crew consist dispute * * *. 12. The carrier’s next conference on the crew consist issue was held only with the General Chairman of the car- rier’s “Milwaukee Industrial” District on March 28, 1966, again without discussion of the merits. BRT General Chair- man Richardson mentioned the Luna-Saunders Agreement as “setting a precedent” for disposition of the entire dis- pute, thereby suggesting that the dispute which the BRT had previously said could be handled only on a local basis should nevertheless be resolved by adopting a uniform national rule of “1 and 2.” 13. The carrier met with the representatives of the BRT again on June 28, 1966, at which time BRT General Chair- man Spiegel (““C&NW Proper” District) reiterated the union’s position that the “. . carrier’s notice and the organization’s notice are two separate issues and will be handled separately.” When the carrier representative stated that he understood the purpose of the conference to be discussion of the notices and proposals of both parties, Mr. Spiegel again refused to discuss the carrier’s demands concurrently with the BRT’s. Then Mr. Spiegel announced that he was free to make an agreement himself on this railroad, indicating that he was not bound by any national determination of a settlement, and in this regard he stated that he was not just “going through the motions.”” However, in nearly the next breath Mr. Spiegel urged upon the carrier the adoption of the Luna-Saunders Agreement and its uniform “] and 2” tule. The parties then recessed with an informal agreement to make separate studies of crew consist needs on individual jobs. 14. In March of 1968, the C&NW decided to try a new approach in an effort to arrive at a compromise. Basically, that approach involved offering to share with the employees 34 the savings accomplished by the elimination of wasteful labor costs. Accordingly, the C&NW proposed that the parties enter into an agreement under which the basic daily rate of brakemen working on “] and 1” crews would be increased by $3.45. This would have meant, on the average, an annual wage increase of around $1,000 for each brake- man working on such crews. The union, however, promptly and unequivocally refused to bargain over that proposal and vigorously protested against any further discussion along those lines. On March 14, 1968, union General Chairman Maloney wrote to the C&NW and stated: “We are not willing to enter into negotiations on such a proposal, and you are hereby advised that same is not acceptable.” The C&NW therefore, in order not to introduce further tension into the negotiations, refrained from pressing its proposal. Later, I learned that in strike injunction litigation brought by another railroad, the UTU’s President, Mr. Charles Luna, testified that the union’s negotiators were bound by a UTU convention action not to discuss any car- rier proposal to compromise the dispute on any basis that would include the payment of additional wages to employees. Thus, he said on cross-examination: “Q. Mr. Luna, you testified your general chair- men are perfectly free to make whatever agreement they wish on the L&N, is that right? “A. With the exception of taking money. We have convention action, which is the governing body of this organization. That is against selling a man’s job for x number of dollars” (Transcript of prelim- inary injunction hearing, p. 350, Louisville & Nash- ville RR. v. United Transportation Union, Civil Action No. 5784 (M.D. Tenn. 1969)). Moreover, Mr. Luna, in statements printed in the union’s newspaper, the 7rainmen News, proclaimed his unalterable opposition to negotiations involving consideration of a com- promise based upon increased compensation—compensation that he called “Judas Money.” (Trainmen News, vol. 22, 35 No. 13, p. 1 (March 23, 1968); op. cit., vol. 22, No. 14, p. 1 (March 30, 1968)). 15. The parties did not meet again on crew consist until March of 1968 when BRT President Charles Luna and C&NW Chairman Ben W. Heineman and President Larry S. Provo discussed the crew consist dispute briefly. At that time Mr. Luna argued that “1 and 2” crews were more eco- nomical than smaller crews and that the carrier was actually losing money by refusing the union’s demands for larger crews. Messrs. Heineman and Provo offered to study the economics of crew size on this railroad and furnish the results to the BRT. When completed this study showed clearly the carrier’s savings by operating with small crews. On May 16, 1968, pursuant to an agreement between the BRT’s C&NW General Chairman Maloney and me that we would make a real effort to sit down and settle the crew consist dispute, other carrier representatives and I met with General Chairman Maloney on the “C&NW Proper”’ District, the largest of the carrier’s districts. The results of the car- rier’s economic studies were first handed to Mr. Maloney, together with an offer to discuss them and answer ques- tions about them. Mr. Maloney did not then look at the studies, and no representative of the BRT ever mentioned them again except upon one later occasion when Mr. Maloney simply remarked that he did not understand them. In answer to that remark we offered to explain the study, but Mr. Maloney never indicated a willingness that we do so. During most of the conference of May 16 we identi- fied all the existing jobs which were being operated on the “C&NW Proper” District with “1 and 1” crews and then agreed that at subsequent meetings we would study yard jobs first, then road jobs. Nevertheless, before recessing Mr. Maloney remarked that all Chicago Terminal jobs would have to be operated with “1 and 2” crews. 16. At the next three conferences the parties considered yard jobs. On June 12, 1968, Mr. Maloney discussed a number of yard assignments on the “C&NW Proper” Dis- trict and commented on some jobs which in his opinion 36 would have to be restored and others which could remain at “1 and 1.” He conceded that 4 or 5 jobs could continue to be worked with one helper. Finally, he insisted again that all Chicago Terminal crews must be worked with “| and 2,” and that “there was not even any sense in discuss- ing them”. More discussion of yard assignments followed at the conference of June 20, 1968, at the conclusion of which Mr. Maloney stated that of some 80 yard jobs then being operated in the “C&NW Proper” District with “1 and 1” crews only 6 could continue with “1 and 1,” and of these two were not then in existence but had been abolished earlier. At the third meeting on July 17, 1968, the carrier representatives reviewed our notes on about one-half the yard assignments on the “C&NW Proper”’ District and dis- cussed reasons why these assignments could be operated safely and efficiently with small crews. The remainder were tu be discussed at our next meeting. 17. At the conference on August 6, 1968, Mr. Maloney was joined by BRT Vice President Francis Tuffley. After we had finished discussing ““C&NW Proper” District yard assignments on behalf of the carrier, I said that many road assignments on branch lines in that district ought to remain “1 and 1” and that also many mainline jobs should be reduced to “1 and 1.”” Mr. Tuffley, however, did not answer me but, rather, put on the table a number of crew con- sist agreements which the BRT had entered into with other railroads. In the conversation that followed Mr. Maloney indicated that what was “‘good enough for those railroads” should be good enough for the C&NW. Mr. Tuffley then asked me how my railroad could justify a different agree- ment. When I said that I could not follow these other agreements since the C&NW had proved the effectiveness of “‘1 and 1” crews by using them continuously for four years, the BRT representatives began to pack up their papers preparatory to leaving the room. Mr. Tuffley said it was clear that we were “getting nowhere,” that the Mediation Board ought to be brought in, and that the C&NW quite clearly did not intend to make a settlement SES hn ae an an —men fe maiptreaaiaeeeo@&k@q@egtit Gs & 37 like those all the other railroads had made. I again pro- tested that we had not discussed any of the road jobs in the “C&NW Proper” District which were now operating with “1 and 1” crews, nor had we discussed any of the “1 and 2” crews which the carrier wished to reduce pursuant to our Section 6 notice. The meeting ended there. 18. On the following day, August 7, 1968, Mr. Maloney called me to agree that we ought to discuss road jobs in his district and that he would later call for another conference in three or four weeks. Mr. Maloney’s agreement that the road jobs should be discussed and to postpone requesting the services of the Mediation Board coincided with the BRT strike of the Chicago Belt over crew-consist. Mr. Maloney did not call for another conference date, and I did not dis- cuss crew consist with the BRT again until brief conversa- tions with Mr. Maloney took place in October and in Jan- uary when we agreed only to defer our discussions. Then on April 14, 1969, a day after the Illinois Central Railroad Company had entered into a crew consist agreement with the union to settle a strike on that carrier, Mr. Maloney called to tell me that BRT (now UTU) President Luna “‘was after [him] to get moving on crew consist.” I agreed to another conference for April 22, 1969. 19. Much of the conference on April 22, 1969, was devoted to a UTU demand concerning changes in rules in the carrier’s suburban service, the union chiefly wanting the carrier to agree to a five-day work week. However, the sub- ject of crew consist was also discussed. The quotations set . out below are taken from my conference notes; and if they are not exactly verbatim, they are at a minimum substan- tially accurate. 20. Mr. Maloney for the UTU first stated that his “hands were not tied” on the crew consist issue and that he wanted to try to settle both that dispute and the one over subur- ban service together. Later, however, he added that any settlement along those lines would require the approval of UTU national Vice President Tuffley, since the Grand Lodge 38 was “calling the shots” on crew consist. Then when asked whether he thought all “1 and 1” jobs should be restored, the following discussion took place: “[Maloney] No, I believe that the crew consist agree- ments which have come through on other railroads have shown between 70% and 80% of the jobs returned to service and I would think around 72% of the jobs should be restored. “{Wolfe] I assume from what you say, that you are not agreeable to any deviation from those national percentages in disposing of our crew consist notices. “[Maloney] That’s right. I am going to have to get the national average of jobs returned to service.” Mr. Maloney then proposed that a certain number of these “1 and 1” jobs might not be restored in return for carrier concessions in the suburban service dispute: “( Wolfe] Do you then mean that we could restore that percentage of jobs and then again remove some of those jobs because of the suburban service Five Day Work Week? “(Maloney] No, I must dispose of the entire crew consist issue once only. The original disposition must take into account that certain jobs are not restored and that a suburban service Five Day Work Week Agreement will be placed in effect instead. A somewhat similar agreement was made on the L&N where the crew consist issue was used to resolve other local bargaining problems on the property.” Later, there was this exchange: “‘[Maloney] We want [enumerates demands in subur- ban service]. [In return] we will yield on the num- ber of crew consist jobs returned in the Chicago area sufficient to cover all this cost. “{ Wolfe] What about the matter of crew consist in road service? We haven’t talked about that yet. “{Maloney] The general trend of the agreements around the country has been that road service will be manned one and two. 39 “(Wolfe] You mean you don’t want to talk about road service? “(Maloney] No, except in the Chicago area. ““ “[Wolfe] How are we going to settle the road serv- ice subject? “[Maloney] We will have to have one and two on these jobs. My proposal is that all jobs on the road be manned one and two, except in the Chicago area. “(Wolfe] What about our proposal on main line way freights? “[Maloney] This has been set aside in other han- dling. “{Wolfe] Then you are not willing to talk about crew consist on the road, except in the Chicago area? “{Maloney] That is right, except in Chicago.” 21. At the parties next conference on April 30, 1969, Mr. Maloney started off by saying: “[Maloney] I will be very candid. I was low man on the totem pole on crew consist on the main line railroads. IC [Illinois Central] and C&NW were the last, and it was decided they should not both be tackled at once. IC was first. Now that the IC has settled I am being questioned by Grand Lodge Offi- cers on where I stand. I can only get by so long, and it will soon be necessary to get a mediator. Grand Lodge officers tell me I am first-out to settle this or get a mediator. I don’t believe we will encounter any difficulty with other General Chair- men [having them come in to the discussions] because we are not going to deviate from the national average.” After discussion on a range of subjects involving the “C&NW Proper” District—but not individual jobs—Mr. Maloney said: “. . | don’t believe it will be too difficult to reach agreement. This file should be enough. “(Wolfe] What is in that file? 40 “[Maloney] It contains all of the crew consist agreements in the country. The percentages estab- lished will have to be followed here. You didn’t — I would agree on lower percentages here, did you? “ee . “[Maloney] The pressure on me to make a crew con- sist agreement is very strong.” The meeting ended after a discussion of other unrelated matters. 22. The next conference, on May 9, 1969, was attended by UTU (formerly BRT) general chairmen for the “C&NW Proper,” “L&M,” “M&StL,” and “CStPM&O”’ Districts. This conference therefore represented the first time since the prefatory meetings of January 18, 1966, and June 28, 1966, that union representatives from the “CStPM&O,” “M&StL,” and “L&M” Districts had conferred with the car- tier on crew consist. Mr. Maloney stated that the C&NW was the last railroad to settle with the UTU because the union recognized that it could not strike both the Illinois Central and the C&NW at the same time. Now he said, — “Charlie” Luna was chaffing at the bit. Maloney next stated it was not necessary for him to discuss manning needs on individual jobs: he had discussed ““C&NW Proper” yard jobs informally with the C&NW, and there were plenty of precedents now. General Chairman Cardinal represent- ing the “CStPM&O” District then said that he could see no sense “sparring” around, that it would be “ridiculous” for him to agree to anything different from the crew consist agreements on the Milwaukee Road and the Great Northem railroads where the men work side-by-side with C&NW employees in certain terminals. Mr. Maloney stated that if he entered into an agreement restoring only 40% of the present “1 and 1” jobs he “would be in trouble in Cleveland.” He also said that if the carrier and the union considered and discussed all the individual jobs involved in this dispute they “would be [there] until next _ —— 41 stmas.” Mr. Maloney then withdrew the offer to mpt to settle crew consist in connection with a settle- t on suburban service. I later stated that while Mr. mney and I had discussed all the yard jobs, we hadn’t ussed the road jobs. Mr. Maloney replied first that all road jobs would have to be restored to “1 and 2,” pt pile drivers (a very small number of jobs) and sec- , that consideration of the “1 and 1” road jobs would -a long time and that he wouldn’t agree to a job-by- study on them. Later he stated that he did not want e pinned down on what he will insist on in road serv- I finally attempted to describe Mr. Maloney’s position lows: “You do not want to go over the road assignments on a job-by-job basis, and you expect that all of them must be restored because of the IC and L&N agreements.” Maloney responded by saying that he expected all road to be restored, not because of the IC or L&N, but use of productivity. Then he added, however, “‘All of others have gotten together and why can’t we?”’ There no discussion or even a listing during this conference dividual jobs on the “L&M,” “M&StL,” or “CStPM&O” ricts, although I advised the union representatives that should not terminate on-the-property negotiations until issions for the whole C&NW system were complete. 3. The conference of the morning of May 15, 1969, held with General Chairman Cardinal of the ““CStPM&O” rict only. The parties simply identified the jobs now king “‘1 and 1” without any discussion of their man- requirements. Then Mr. Cardinal stated positively that he jobs so identified had to be restored to “‘l and 2,” iting out to me that the Milwaukee Road and the Great thern had restored all their crews. I asked if Mr. Cardi- meant that all the “1 and 1” jobs on his district had to stored to “1 and 2,” not because the men were needed, because other railroads put them back. Mr. Cardinal replied that he wasn’t saying just that, but a second 42 later he answered that maybe he was saying just that. When I then asked if Mr. Cardinal thought it would be a “waste of time” to discuss all the jobs, he answered that, to be honest, he thought it was. Nevertheless, I proceeded to to review some yard jobs in the “CStPM&O” District, but at the end of that review Mr. Cardinal announced that he wanted all jobs restored to “1 and 2” and that he must have them restored because, in his words, “the other rail- roads have put the men back.” When asked again if he wanted to discuss a particular set of jobs he refused, reply- ing that he wanted them all restored. Later when | argued that the operational needs of the railroad did not justify “1 and 2” crews, Mr. Cardinal answered that the jobs had to be restored no matter and added: “Why kid ourselves?” | finally referred to some road jobs in the “CStPM&O” Dis- trict, and Mr. Cardinal refused to discuss the manning requirements on any. At one point he said the union required all the jobs restored in the Twin Cities area in view of the Milwaukee Road and Great Northern settlements. 24. The conference of the afternoon of May 15, 1969, was attended only by UTU General Chairman Stahley of the “Chicago Great Western” District which represented the first time that a union representative had met with the C&NW to confer on the crew consist dispute on that dis- trict. After much general background discussion, we merely identified without any discussion all the “‘1 and 1” jobs in the ““CGW”’ District (which were all the jobs in that district with certain exceptions at Oelwein Yard and some main line assignments). Although Mr. Stahley at first indicated a willingness to discuss individual jobs, he then excluded those at the Kansas City Missouri terminal where, in his words, “the agreements of the Milwaukee Road, Kansas City Southern Railway, and others had to be followed.” When I protested, Mr. Stahley replied that those agreements were the only guidelines he could think of. Moreover, he further stated that UTU Vice President Tuffley had instructed him that the C&NW had to conform to the same disposition reached on other railroads. Thereupon Mr. 43 Stahley conceded that ‘as a practical matter” he could “not agree to anything else” and declined to enter a job-by-job discussion until he learned whether or not the dispute on his district (the ““CGW”’ District) would be included in mediation sessions which the Mediation Board had announced were forthcoming. 25. The conference of May 15, 1969, marked the end of the on-the-property conferences. During those negotia- tions, the union at least listened to the carrier’s position (although their representatives always emphasized that eventually any agreement had to conform to the national pattern) relating to individual yard jobs in the “C&NW Proper” District, but for yard crews in the four other dis- tricts and for road jobs in all C&NW Districts, the union refused to even hear a presentation of the carrier’s position. In fact, although the union representative of the “C&NW Proper”’ District met with the carrier a total of nine times (January 18 and June 28, 1966; June 12, June 20, July 17 and August 8, 1968; and April 22, April 30 and May 9, 1969) during which meetings the parties discussed yard jobs in that district but not road jobs, meetings with repre- sentatives of the other districts on the C&NW system were only perfunctory: (1) the General Chairmen of the “M&StL” and “L&M”’ Districts appeared at the prefatory meetings of January 18 and June 28, 1966, when proce- dures were discussed and at the general meeting of May 9, 1969, but at no time did they discuss the manning require- ments of the individual jobs on their districts or, for that matter, even listen to a presentation of the carrier’s posi- tion on those jobs, (2) the General Chairman of the “CStPM&O” District also appeared at the prefatory meet- ings of January 18 and June 28, 1966, and the general meeting of June 9, 1969, and additionally at a meeting on the morning of May 15, 1969, but the only reference to individual jobs on the “CStPM&O”’ District occurred at the May 15 morning meeting when the parties identified the jobs involved but did not discuss their manning require- ments, and (3) the General Chairman of the “CGW”’ Dis- 44 trict appeared only once, on the afternoon of May 15, 1969, at which time the carrier only listed the jobs involved but did not have time to even present its position on man- ning requirements for those jobs. 26. Mediation under the auspices of the National Media- tion Board commenced on June 2, 1969, with the parties meeting separately with the mediator. When the parties met on June 3, 1969, I pressed for a recess in mediation in order to give the carrier (and the UTU if it wished) time to prepare studies. My proposal met with resistence; and I was prompted to ask the UTU representatives what con- . crete evidence they had on the question of whether or not additional men were needed on crews. General Chairman Maloney responded in substance as follows: ** .. [I]n the country as a whole it can be seen what happened. On one railroad 600 jobs were worked one and one and all are back on [i.e., being operated at “1 and 2”), and on another railroad 450 were off and all but eight are back on.... If we do this study, where will we end up? . . . No matter how many time-studies may have been made, other rail- roads have been settling for an average of 90% [of the crews at “1 and 2”].... Time-studies could not have played a very important role in these dis- positions.” When I replied that we were now talking about the C&NW and not about other carriers, Mr. Maloney’s answer was that “the Burlington, the Milwaukee Road, and the Great Northern have returned their crews to a “1 and 2” consist and the [C&NW] crews should now be returned to a “‘l and 2” consist the same as these other railroads.” When I again pressed for the study of individual jobs, Mr. Maloney stated that he was “of the firm belief that time-study or no time-study, the organization wouid seek and gain an agreement by saying: ‘here is what the Milwaukee, the CB&Q, and the Great Northern have done, and this is what the [C&NW] is going to have to do.’ ” 45 UTU Assistant Vice President Moore added that President Luna had stated that in a single yard all the jobs working side by side must be returned to a “1 and 2” crew consist. Later, after lunch, at the suggestion of the mediator the parties did agree to a two-week recess so that job studies could be made. Nevertheless, Mr. Moore then made the statement that he “presume[d] that the study [was] for the carrier’s benefit and not for any purpose of the employees, since [he] dofes] not intend to change [his] posi- tion in any way relative to insisting on a return to a “1 and 2” crew consist.” Moreover, Mr. Moore stated that he does not think that the C&NW is any different from the other railroads which have already agreed to return their employees to a crew consist of “1 and 2.” 27. Mediation sessions resumed on June 18, 1969, with a discussion of the methods which the carrier had used in conducting its job studies. General Chairman Maloney asked at the start if all the time that was injected into these stud- ies wasn’t “‘pointless,”” because “. . . on all of these various railroads across the country agreements eventually resulted which put the men back to work regardless of the studies.” Mr. Maloney then made a written proposal to settle the dis- pute. In general, the proposal provided that all crews on the railroad be operated at “1 and 2.” Mr. Maloney stated -without giving any details—that this proposal was based upon “a comprehensive study of [his] own relative to crew consist.” Moments later he asked the carrier to make a counterproposal and said that he did “not give a damn about the carrier’s time and motion study.” 28. The meeting of the parties on June 20, 1969, was brief. It was not attended by all the union’s representa- tives, and the only subject discussed was the carrier’s latest proposal. This called for restoration of five yard and 2 branch line jobs to “1 and 2” status, for further reductions 46 of other yard and branch line crews to “1 and 1,” and reductions to “1 and 1” in mainline through freight in accordance with the carrier’s long-standing proposal that reductions be made in that area of the C&NW’s operations, 29. On June 24, 1969, the carrier received the UTU’s next proposal through the mediator. This called for a “| and 2” consist on all the carrier’s crews except for 8 yard crews and 3 branch line road crews. On June 25, the par- ties met again and discussed at length the union’s proposal. I gave all my reasons why the carrier could not accept such a return to larger crews, and Mr. Maloney responded in a way which once again demonstrated the union’s hostile atti- tude toward discussing crew consist on the merits: “T will not sit here and argue whether or not these men are needed. I believe they are needed.” I brought up the subject of mainline through freight serv- ice and said that in my view the Award of Arbitration Board No. 282 did not go far enough in resolving the crew consist question because it excluded consideration at that time of reduction in mainline. Again Mr. Maloney’s response summed up the union’s attitude; for he said that while the parties were not then discussing the carrier’s pro- posal. “when we do get to that proposal, the organization is definitely not going to agree to any change in crew consist on mainline or through freight jobs.” In other words, the union just wasn’t going to bargain at all on the C&NW’s proposals for reductions in mainline. When the carrier’s proposal did come under discussion, Mr. Maloney said that if he accepted that proposal he would be going “far beyond his responsibility as General Chairman in this case.” The meaning of Mr. Maloney’s words was clear to me: He did not have the authority from his national office and from President Luna to agree to any settlement which retained a substantial number of yard and branch line crews 47 at “1 and 2” or which granted any of the reductions sought by the carrier’s proposals in mainline. After another brief discussion this meeting ended. 30. Four further meetings were held by the parties with a mediator between June 26 and July 2, 1969. These meet- ings in the main consisted of arguments over the “pros and cons” of the different proposals, and little progress was made toward reaching an agreement. At all times the union representatives insisted that the C&NW would have to make an agreement like the other carriers on which there have been settlements on the crew consist issue, and especially like the agreements reached on the Milwaukee Road; the Great Northern; and the Chicago, Burlington & Quincy. At one point in the parties’ meeting on June 30, 1969, BRT General Chairman Maloney seemed to sum up the union’s final position: “. . . [T]he employees on the [C&NW] are going to insist On an agreement comparable to the agree- ments obtained by their fellow workers on other railroads in the mid-west.” 31. On July 2, 1969, the mediator announced that in his view mediation had failed and that he was so reporting to the Mediation Board. No further mediation sessions were held. In October, 1969, the Mediation Board proffered arbitration to the parties. The C&NW promptly accepted, but when the union declined, the Board terminated its services in this dispute on October 16, 1969. 32. On November 11, 1969, conferences resumed at my request with UTU Vice President Francis Tuffley and the various General Chairmen present to represent the union. When this meeting opened, I first inquired of Vice Presi- dent Tuffley if the union intended to delay their strike. Mr. Tuffley responded that the union would not strike as long as conferences continued to progress, but that he did not envision conferences continuing beyond one week. During the next seven days the parties met in the offices of the C&NW, during which time we identified the crews 48 involved in this dispute and discussed our positions. At no time, however, did the union alter its refusal to even con- sider the carrier’s Section 6 notice on main line crews or in any way deviate in its offers to dispose of the dispute from the agreement results made with other railroads. {Subscription and notarial certificate omitted in printing. ] EXHIBIT A General Grievance Committee BROTHERHOOD OF RAILROAD TRAINMEN Chicago & North Western Railway Chicago, Illinois July 6, 1965 Mr. T. M. Van Patten Director of Personnel C. & N. W. Railway Chicago, Illinois 60606 Dear Sir: The undersigned, representative of the Road Trainmen of the Chicago & North Western (Proper) Railway Company, under existing agreements between management and the Brotherhood of Railroad Trainmen, has been authorized under the laws and rules of procedure of the organization, to submit to you notice of desire to change, effective Jan- uary 26, 1966, the said agreements as set forth below: Consist of crews in road service: ‘‘Effective January 26, 1966 a rule shall be inserted into the respective agreements between the parties applying to Brake- men (trainmen) which will provide that crews in road through freight service shall consist of not less than two (2) Brakemen (trainmen). 45 UTU Assistant Vice President Moore added that President Luna had stated that in a single yard all the jobs working side by side must be returned to a “1 and 2” crew consist. Later, after lunch, at the suggestion of the mediator the parties did agree to a two-week recess so that job studies could be made. Nevertheless, Mr. Moore then made the statement that he “presume[d] that the study [was] for the carrier’s benefit and not for any purpose of the employees, since [he] dofes] not intend to change [his] posi- tion in any way relative to insisting on a return to a “1 and 2” crew consist.” Moreover, Mr. Moore stated that he does not think that the C&NW is any different from the other railroads which have already agreed to return their employees to a crew consist of “1 and 2.” 27. Mediation sessions resumed on June 18, 1969, with adiscussion of the methods which the carrier had used in conducting its job studies. General Chairman Maloney asked at the start if all the time that was injected into these stud- ies wasn’t “pointless,” because “. . . on all of these various railroads across the country agreements eventually resulted which put the men back to work regardless of the studies.” Mr. Maloney then made a written proposal to settle the dis- pute. In general, the proposal provid) that all crews on the railroad be operated at “‘l and 2." Mr. Maloney stated -without giving any details—that this proposal was based upon “ta comprehensive study of [his] own relative to crew consist.” Moments later he asked the carrier to make a counterproposal and said that he did “not give a damn about the carrier’s time and motion study.” 28. The meeting of the parties on June 20, 1969, was brief. It was not attended by all the union’s representa- tives, and the only subject discussed was the carrier’s latest proposal. This called for restoration of five yard and 2 branch line jobs to “*l and 2” status, for further reductions 46 of other yard and branch line crews to “1 and 1,” and reductions to “1] and 1” in mainline through freight in accordance with the carrier’s long-standing proposal that reductions be made in that area of the C&NW’s operations. 29. On June 24, 1969, the carrier received the UTU’s next proposal through the mediator. This called for a “| and 2” consist on all the carrier’s crews except for 8 yard crews and 3 branch line road crews. On June 25, the par- ties met again and discussed at length the union’s proposal. I gave all my reasons why the carrier could not accept such a return to larger crews, and Mr. Maloney responded in a way which once again demonstrated the union’s hostile atti- tude toward discussing crew consist on the merits: “T will not sit here and argue whether or not these men are needed. I believe they are needed.” I brought up the subject of mainline through freight serv- ice and said that in my view the Award of Arbitration Board No. 282 did not go far enough in resolving the crew consist question because it excluded consideration at that time of reduction in mainline. Again Mr. Maloney’s response summed up the union’s attitude; for he said that while the parties were not then discussing the carrier’s pro- posal. “‘when we do get to that proposal, the organization is definitely not going to agree to any change in crew consist on mainline or through freight jobs.” In other words, the union just wasn’t going to bargain at all on the C&NW’s proposals for reductions in mainline. When the carrier’s proposal did come under discussion, Mr. Maloney said that if he accepted that proposal he would be going “far beyond his responsibility as General Chairman in this case.” The meaning of Mr. Maloney’s words was clear to me: He did not have the authority from his national office and from President Luna to agree to any settlement which retained a substantial number of yard and branch line crews 47 at “1 and 2” or which granted any of the reductions sought by the carrier’s proposals in mainiine. After another brief discussion this meeting ended. 30. Four further meetings were held by the parties with a mediator between June 26 and July 2, 1969. These meet- ings in the main consisted of arguments over the “pros and cons” of the different proposals, and little progress was made toward reaching an agreement. At all times the union representatives insisted that the C&NW would have to make an agreement like the other carriers on which there have been settlements on the crew consist issue, and especially like the agreements reached on the Milwaukee Road; the Great Northern; and the Chicago, Burlington & Quincy. At one point in the parties’ meeting on June 30, 1969, BRT General Chairman Maloney seemed to sum up the union’s final position: “. . [T]he employees on the [C&NW] are going to insist On an agreement comparable to the agree- ments obtained by their fellow workers on other railroads in the mid-west.” 31. On July 2, 1969, the mediator announced that in his view mediation had failed and that he was so reporting to the Mediation Board. No further mediation sessions were held. In October, 1969, the Mediation Board proffered arbitration to the parties. The C&NW promptly accepted, but when the union declined, the Board terminated its services in this dispute on October 16, 1969. 32. On November 11, 1969, conferences resumed at my request with UTU Vice President Francis Tuffley and the various General Chairmen present to represent the union. When this meeting opened, I first inquired of Vice Presi- dent Tuffley if the union intended to delay their strike. Mr. Tuffley responded that the union would not strike as long as conferences continued to progress, but that he did not envision conferences continuing beyond one week. During the next seven days the parties met in the offices of the C&NW, during which time we identified the crews 48 involved in this dispute and discussed our positions. At no time, however, did the union alter its refusal to even con- sider the carrier’s Section 6 notice on main line crews or in any way deviate in its offers to dispose of the dispute from the agreement results made with other railroads. {Subscription and notarial certificate omitted in printing.] EXHIBIT A General Grievance Committee BROTHERHOOD OF RAILROAD TRAINMEN Chicago & North Western Railway Chicago, Illinois July 6, 1965 Mr. T. M. Van Patten Director of Personnel C. & N. W. Railway Chicago, Illinois 60606 Dear Sir: The undersigned, representative of the Road Trainmen of the Chicago & North Western (Proper) Railway Company, under existing agreements between management and the Brotherhood of Railroad Trainmen, has been authorized under the laws and rules of procedure of the organization, to submit to you notice of desire to change, effective Jan- uary 26, 1966, the said agreements as set forth below: Consist of crews in road service: “Effective January 26, 1966 a rule shall be inserted into the respective agreements between the parties applying to Brake- men (trainmen) which will provide that crews in road through freight service shall consist of not less than two (2) Brakemen (trainmen). 49 Crews in way-freight service shall consist of not less than three (3) Brakemen (trainmen) on the follow- ing main lines: Between Chicago and Council Bluffs Between Chicago and Elroy Between Chicago and Milwaukee Crews in suburban passenger service shall consist of not less than two (2) Brakemen (collectors) Therefore, in accordance with the provisions of the Railway — Labor Act, as amended, and current agreements covering rates of pay, rules and working conditions of the employees herein covered, you will please accept this as formal notice of our desire to change the said agreements as set forth above. Please reply to this proposal in writing to the undersigned General Chairman within ten days, fixing date within the provisions of the Railway Labor Act when conference with you may be had for the purpose of discussing these matters. Yours truly, /s/ Norman Speigal Chairman, G.G.C. cc: Mr. Charles Luna 50 EXHIBIT B General Grievance Committee BROTHERHOOD OF RAILROAD TRAINMEN Chicago & North Western Railway Chicago, Illinois July 6, 1965 Mr. T. M. Van Patten Director of Personnel C. & N. W. Railway Chicago, Illinois 60606 Dear Sir: The undersigned, representative of the Yardmen and Switch- tenders of the Chicago & North Western (Proper) Railway, under existing agreements between management and the Brotherhood of Railroad Trainmen, has been authorized under the laws and rules of procedure of the organization, to submit to you notice of desire to change, effective Jan- uary 26, 1966, the said agreements as set forth. Consist of crews in all yards, which shall provide that “Effective January 26, 1966, a rule shall be inserted in the respective agreements, between the parties applying to yard service employees, which will provide that train and yard crews in all classes of yard service, including Transfer, Interchange, Yard Work Trains, shall consist of not less than one (1) conductor (foreman) and two (2) brakemen (helpers). Yard crews employed at Proviso Hump Yard to con- sist of not less than one (1) conductor (foreman) and three (3) brakemen (helpers) Therefore, in accordance with the provisions of the Railway Labor Act, as amended, and current agreements covering rates of pay, rules and working conditions of the employees herein covered, you will please accept this as formal notice of our desire to change the said agreements as set forth above. 51 Please reply to this proposal in writing to the undersigned General Chairman within ten days, fixing date within the provisions of the Railway Labor Act when conference with you may be had for the purpose of discussing these mat- ters. Yours truly, /s/ Norman Speigal Chairman, G.G.C. cc. Mr. Charles Luna EXHIBIT C December 24, 1965 File 69-2-34-Tmm. C&NW 69-2-34-Ydmn. C&NW WIJF:a Mr. N. Spiegel 14 East Jackson Boulevard Chicago, Illinois 60604 Dear Sir: This has reference to our previous correspondence concern- ing your purported Section 6 notices of July 6, 1965 relat- ing to crew consist: As I previously informed you, without waiving the carrier’s position as to the prematurity and impropriety of your requests, the carrier reserved the right to file such proposals as it may consider appropriate for concurrent handling with your requests when considered appropriate to do so. We hereby give notice, under our existing agreement or agreements and pursuant to the provisions of the Railway Labor Act, that we propose to revise and supplement such agreement or agreements in accordance with the proposals set forth in “Attachment A” appended hereto, such pro- posals to be considered and progressed concurrently with 52 your notices of July 6, 1965. It is suggested that the ini- tial conference on the carrier’s proposals be held at 10:00 a.m., Tuesday, January 18, 1966, at 400 West Madison Street, Chicago, Illinois, at which time we will also discuss the organization’s proposals. As a matter of information we have suggested the same time and place for conference with the other BRT General Chairmen relative to identical notices being served on them by the carrier for concurrent handling with proposals served by them which were similar to those forwarded with your letters of July 6, 1965. Please acknowledge receipt of this notice and advise if the proposed time, date and place for holding the initial con- ference are agreeable to you. In the event that we are unable to reach an agreement upon the organization’s and carrier’s proposals at such conference, we further propose that the matter be handled on a joint national basis. In accordance with established procedure which has been followed in the railroad industry on numer- ous occasions during the last fifty years, if an agreement is not reached in our conferences, this carrier will join with other carriers serving a like notice upon their employes represented by the Brotherhood of Railroad Trainmen in the creation of regional Carriers’ Conference Committees which, in conjunction with the National Railway Labor Conference, will be authorized to represent it in progress- ing the matter to a conclusion. It is requested that you join with representatives of the employes on other carriers who are receiving like proposals in the creation of an Employes’ National Conference Committee to negotiate to 53 a conclusion, in accordance with the provisions of the Rail- way Labor Act, the subject matter of these proposals. Yours truly, (Signed) T. M. Van Patten BC: Mr. J. F. Griffin - See your Circular No. 229-5 of December 21, 1965. T.M.V.P. BBC: Messrs. S. C. Jones L. S. Provo J. J. Hillman BBBC: Mr. B. W. Heineman ATTACHMENT A TO EXHIBIT C CONSIST OF CREWS Consist of Road and Yard Crews A. Eliminate all agreements, rules, regulations and prac- tices, however established, applicable to any class or grade of train or yard service employes, which require the employment or use of (i) a stipulated number of trainmen (assistant con- ductors, ticket collectors, baggagemen, brakemen or flagmen) in any crew used in any class of road service, including all miscellaneous and unclassi- fied services, or a stipulated number of brakemen or helpers in any crew used in any class of yard, transfer or belt line service, including all miscellaneous serv- ices to which mileage rates do not apply. 54 B. Establish a rule to provide that 1. Management shall have the unrestricted right, under any and all circumstances, to determine when and if trainmen (assistant conductors, ticket collec- tors, baggagemen, brakemen and flagmen) shall be used in each crew employed in all classes of road service, including all miscellaneous and unclassified services, and if used the number and classification of employes who will be so used; and when and if brakemen or helpers shall be used in each crew employed (including yardmen who work independent of a yard crew) in all classes of yard, transfer and belt line service, including all miscellaneous services to which mileage rates do not apply, and if used, the number and classifica- tion of employes who will be so used. 2. All agreements, rules, regulations, interpretations and practices, however established, which conflict with the provisions of this rule shall be eliminated. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION 3 [Caption omitted in printing] AFFIDAVIT OF LARRY S. PROVO ON BEHALF OF THE PLAINTIFF, CHICAGO AND NORTH WESTERN RAILWAY COMPANY * * * * * 1. 1 am President and Chief Executive Officer of the Chicago and North Western Railway Company (hereinafter referred to as the “C&NW” or the “carrier”), * * * * os a * *” 6. * * * Any strike or work stoppage forcing the rail- road to terminate its operations will endanger this invest- ment of $1,276,632,000 and deprive the C&NW of $750,000 in revenue for each day it continues. Considering only the 55 loss of traffic during the strike to competing forms of transportation understates the injury to the corporate invest- ment, as the experience of this industry has been that cus- tomers lost to competitors during strikes are often not regained on the resumption of normal services. 7. The C&NW is in such critical financial condition that restoration of unneeded jobs will have a serious impact upon the ability of the railroad to continue to provide the public with effective transportation service over its exten- sive 11,500 mile system. Our marginal economic nature is a matter of public record. The C&NW has had ordinary income deficits in five out of the last ten years. During the period 1963-1966, when wages and price levels remained reasonably stable, the C&NW enjoyed a modest net income from operations. Beginning in 1967, however, we began suffering deficits, a trend which has accelerated in 1969— in the first six months that deficit exceeds $11.2 million, creating a working capital deficiency at the end of the first half of 1969 exceeding $12 million. * ca * * * 9. * * * Upon the rendition of the Award of Arbitra- tion Board No. 282 this management examined the work of our crews to determine where the manning of trains could be reduced consistent with an efficient operation. At that time, our trains were generally manned with a mini- mum consist of one conductor and two brakemen (i.e., “1 and 2”). The C&NW then utilized the procedures of Sec- tion III(A) of the Award to effect those reductions. * * * As a result of agreements and awards so obtained, the C&NW was authorized to eliminate, as soon as attrition per- mitted, unneeded brakemen on approximately 200 crews. 10. The C&NW presently operates approximately 760 crews a day on the whole railroad, of which 429 are in yard service and 331 are in road service. Of the 331 crews in road service, 186 work on main lines (where the provisions of Award No. 282 did not apply) and 145 work on branch lines. Presently, pursuant to the authority of 56 the above-mentioned agreements and awards, the C&NW operates 128 crews in yard service (out of a total of 429) with a consist of either one conductor and one brakeman (i.e., “1 and 1°’) or only one conductor, and 51 crews in road service on branch lines (out of a total of 145) with a consist of “1 and 1.” Reductions on these 179 crews today represent an annual savings of $1,548,639 to the C&NW, a figure which increases annually as further attrition permits realization of the full benefits of our awards and agree- ments. Considering the critical financial condition of the C&NW, elimination of this annual savings of $1,548,639 would aggravate our present working capital deficiency and make even more impossible the modernization of our prop- erty, which is the only hope for the future if this railroad is to furnish the shipping public with needed transporta- tion services. 11. Almost eighty percent of this railroad’s 11,500 mile system consists of branch lines, many of which were constructed in the 19th Century to serve markets which have since shifted. Since these branch lines are marginal economic operations producing only a minimum amount of traffic today, they must be abandoned when rising expenses create deficits so great that their continuance can no longer be justified. The addition of unproductive employees to the 51 branch line crews presently working with a consist of “‘1 and 1” will only weaken the viability of those branch lines and accelerate their abandonment, to the detriment of the remaining shippers dependent on that service. {Subscription and Notarial Certificate omitted in printing] _ 37 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION [Caption omitted in printing] TEMPORARY RESTRAINING ORDER This matter came to be heard upon the plaintiff's motion for a temporary restraining order, supported by the verified complaint herein, an affidavit of James E. Wolfe, an affidavit of James R. Wolfe, and an affidavit of Larry S. Provo, from which it appears that the defendant, United Transportation Union has threatened a strike against the plaintiff, and that this strike and picketing will cause im- mediate and irreparable injury, loss, and damage before a hearing can be had on the plaintiff's motion for preliminary injunction, in that the plaintiff will be forced to suspend the transportation of passengers and freight in interstate commerce, with the consequences that if the strike is not restrained the plaintiff will be deprived of hundreds of thousands of dollars in revenues for each day the strike continues, many of its employees will be deprived of their employment and wages for the duration of the strike, many businesses will be deprived of essential transportation services, and railroad transportation in a large area of the United States may be seriously impaired, so as to impede seriously or interrupt altogether the transportation in inter- state commerce of passengers, mail, freight, and express lading (including government mail and express, military personnel, and material), and food and other lading essen- tial to the public health and safety. IT IS THEREFORE ORDERED that the United Trans- portation Union, each of its divisions, lodges, officers, agents, servants, counsellors, and members, and all persons ~ acting by, through, and for it, be and they are hereby tem- porarily restrained from authorizing or engaging in any strike against or picketing of the plaintiff over any dispute as to the proper consist of road and yard crews; 58 That this temporary restraining order be granted on the condition that an undertaking in the sum of $5,000.00 be filed to make good such damages not to exceed said sum as may be suffered or sustained by any party who is found to be wrongfully restrained; That the defendant be and is hereby directed to show cause, before this Court at 2:00 P.M. on November 28, 1969, why the plaintiff's motion for preliminary injunc- tion should not be granted; That this temporary restraining order shall expire at 8 o’clock P.M. on November 30, 1969, unless it is further extended by order of this Court; and That this temporary restraining order may be served by any person over the age of eighteen years, selected for that purpose by the plaintiff. Dated: 8 o’clock P.M. November 19, 1969 J. Sam Perry United States District Judge UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION [Caption Omitted in Printing] MOTION TO VACATE TEMPORARY RESTRAINING ORDER Now comes the defendant, UNITED TRANSPORTA- TION UNION, a voluntary unincorporated association, by JOHN J. NAUGHTON, its attorney, and moves This Hon- orable Court to vacate the Temporary Restraining Order entered herein without notice to defendant on November 19, 1969, on the grounds that: 59 |) The Complaint fails to state a claim upon which reliecan be granted; 1) The plaintiff's attorney failed to certify to the cour his efforts, if any, to give notice to the defendant or its Aorney and the reasons why notice should not be requed, and 3) The issuance of a Temporary Restraining Order is not ecessary for the prevention of irreparable injury to the plairiff as more fully appears from the Affidavit of Francis D. Tffley attached hereto. [Subscription omitted in printing] AFFIDAVIT RANCIS D. TUFFLEY, being first duly sworn, on oath eposes and says: ) That he is a Vice President of the UNITED TRANS- PORATION UNION, the defendant in this cause, and is assigrd to the dispute between the said Union and the Chicao and North Western Railway Company which is set out ithe Complaint; ) That as part of such assignment, he participated in a preminary conference on the property on August 6, 1968which is referred to in paragraph 17 of the Affidavit of Jaes R. Wolfe. Though this was a mere preliminary confence, he came to the opinion, at that time, that the demads of the railroad were so different than demands on otherailroads that he did not feel they could be justified. He net appeared in the conferences after the mediation had epired and arbitration had been declined. As part of his piparation for this appearance, he reviewed the con- ferents at which he had not been present. He then got in touchvith Mr. James R. Wolfe, by telephone, and requested that cnferences be resumed. After several phone calls, it Was aeed to resume conferences on November 12, 1969. In thcourse of those conferences, we discussed each crew indiviyally and our respective positions. Neither party 60 insisted that all crews had the same consist. The disagree- ment was over specific crews. In the course of that con- ference, we agreed to withdraw all of our requests for a crew consist of 1 and 3; 3) The carrier’s counter-proposal Section 6 Notice was discussed in those conferences in that the subject mat- ter was consistently discussed; 4) At no time did we make an adamant demand that an agreement on the C&NW had to be identical with agree- ments on other railroads and, in fact, this would have been impossible since those agreements differed; 5) At no time did we demand that any agreement could not be less favorable than the most favorable crew consist agreement reached on any other railroad; 6) In the course of the negotiations, the Union had refused to agree to engage in National handling of this dis- pute, but subsequently National handling became impossi- ble because most of the other railroads entered into crew consist agreements. In the post-mediation conferences, no request for or mention of National handling was made; * e + * * [Subscription and notarial certification omitted in printing] UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0290%3A01. Public record. Not legal advice.