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May 14, 1963


The opinion of the court was delivered by: WALSH

This action arises from a complaint for an injunction filed by the Brotherhood of Locomotive Firemen and Enginemen on September 10, 1962. The complaint prayed for a preliminary injunction to order the defendant railroads to operate their trains and switching locomotives with a locomotive fireman or helper.

On January 10, 1963, D.C., 212 F.Supp. 465, this Court denied the preliminary injunction in that the extraordinary relief sought was not warranted, absent a full and complete hearing of the case on the merits. Immediately after this Court's denial of the preliminary injunction, the plaintiff informed defendant railroads of its intention to strike for alleged violation of mileage limitations and vacation provisions, commencing on January 13, 1963. The defendants herein filed a complaint for a temporary restraining order on January 12, 1963 (Civil Action No. 123-63) to stay the strike. This Court granted the temporary restraining order, staying the strike until January 22, 1963. This was later extended to February 1, 1963. On January 25, 1963, the Court ordered that the temporary restraining order would remain in effect until three days after determination by the Court of the Brotherhood's complaint in the instant case.

 On February 19, 20 and 21, 1963, a full hearing on the merits of the complaint herein was conducted, and subsequently, exhaustive briefs were submitted by the parties.

 Before reaching the subject matter of this complaint, a brief history of the collective bargaining agreement, a portion of which is the subject matter of this dispute, seems appropriate.

 II. History of the Agreement

 In the late 1930's the Diesel Locomotive came into limited use on the American railroad. The first Diesel manpower agreement was concluded in 1937 between the Brotherhood of Locomotive Firemen and Enginemen and a number of Class I railroads. The Southern Railway

 'A fireman, or a helper, taken from

 In 1943, this agreement was replaced by three regional agreement. The Southern was a party to the Southeastern agreement of May 11, 1944. Section 3 of that agreement reads, in pertinent part, as follows: the seniority ranks of the firemen, shall be employed on all locomotives;'

 By the end of World War II, Diesel power had come into more prominent use and was beginning to replace steam locomotion. At this time the Brotherhood proposed a collective bargaining agreement incorporating the above quoted language. Shortly thereafter, the Carolina and Northwestern Railway, a defendant herein, entered into such an agreement on January 10, 1946.

 The other railroads of the county did not agree so readily to this proposal. A strike was called by the Brotherhood, an emergency board was appointed and mediation ensued. Subsequently, on May 17, 1950, the remaining defendants entered into a mediation agreement which incorporated the above quoted language as section 4 of the 'Diesel Agreement'.

 It is undisputed that the provision has remained in effect between the parties since 1950; and, is currently incorporated in the agreement of 1959 at page 152 of the printed version.

 During the period 1950 to 1959, the parties hereto operated without substantial difficulty with reference to section 4 of the 'Diesel Agreement' entered into in 1950. Then, on August 27, 1959, the General Chairman of the Brotherhood complained to the Southern of a shortage of firemen on the Washington Division and the Atlanta Division South, and requested that sufficient firemen be made available to comply with Section 4 of the 'Diesel Agreement'. The Railroad admitted that there had been a shortage during the summer months, but the shortage resulted from vacation schedules. Correspondence relating to these shortages continued to be exchanged for several months, until finally on July 19, 1960, the respective positions of the parties were stated at a conference between their representatives. At that time, plaintiff asserted that the carriers must hire additional firemen, regardless of the number on furlough, and the carrier maintained that the 'Diesel Agreement' required only that they make work available to those on furlough. Thereafter, the President of the Brotherhood 'authorized' a strike for July 26, 1960.

 Under this emergency condition, the carrier invoked the services of the Mediation Board and the Brotherhood postponed the threatened strike.

 On November 29, 1960, Board conferences were recessed, but mediation resumed in December 1961. Further conference were held in May of 1962, and on June 4, 1962, the National Mediation Board terminated its jurisdiction without proferring arbitration.

 In addition to the above chronicle of events, further action with relation to section 4 of the 'Diesel Agreement' has been pursued by the parties. On November 2, 1959, defendants, together with all of the other Class I railroads in the country, filed proposals pursuant to section 6 of the Railway Labor Act (45 U.S.C. § 156). These proposals, among other things, would permit the railroads to operate their Diesels without firemen.

 On September 7, 1960, the Brotherhood served a Section 6 notice on the carriers, proposing new rules defining the consist of train crews. Subsequently, on September 16, 1960, the Southern Railway, acting independently from the other carriers of the nation, served a new Section 6 notice; and on October 17 1960, the Southern withdrew from the negotiations of the nationwide Section 6 notice of November 2, 1959.

 The final event in this chronology occurred on January 14, 1963, with defendants submitting their controversy over section 4 of the 'Diesel Agreement' to the First Division of the National ...

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