as required by Section 6 of the Railway Labor Act, 45 U.S.C. § 156, until the matter was settled by the National Railroad Adjustment Board.
There was no dispute at that time as to operating rules which were, and remain, the sole responsibility of management. To now expand that order to include rules as well as conditions would be an unwarranted interference with the functions of management. Further, in Terminal R.R. Assn. of St. Louis v. United States, 266 U.S. 17, 29, 45 S. Ct. 5, 8, 69 L. Ed. 150 (1924), the Supreme Court stated that
'In contempt proceedings for its enforcement, a decree will not be expanded by implication or intendment beyond the meaning of its terms when read in the light of the issues and the purpose for which the suit was brought; and the facts found must constitute a plain violation of the decree so read.'
The defendant has offered an explanation for its change in the operating rules to show that the change was not made for the purpose of avoiding or flaunting the order of the court. The carriers are hopeful that the final settlement of their dispute with the Firemen will permit the firemen to be removed through attrition. This is in accordance with the procedure recommended in the Report to the President by the Emergency Board, dated May 13, 1963. If this recommendation becomes a reality and the carrier has 223 new employees over the age of sixty, the attrition will occur more rapidly.
It is also noteworthy that the Brotherhood contends that operating a locomotive with one of the 223 new employees sitting in the fireman's seat is, for all practical and legal considerations, 'equivalent to having a bag of sand occupy the fireman's seat'. Yet, the Brotherhood has actively solicited these new hires for membership as firemen. Thus, the plaintiff is in the untenable position of arguing that these men are not actually employed as firemen, while, at the same time actively soliciting them for membership in their union. This is particularly significant in light of the fact that the Brotherhood's constitution states that an applicant for membership must be 'actually employed as a locomotive fireman (helper) * * *'.
It is the opinion of this Court that the defendant railroad has offered a satisfactory explanation for the change in work rules. There has been no showing that this change was made in contempt of our order.
There was a technical violation of the Order by the action of the defendants in operating 47 locomotives without the presence of firemen. However, it has been stipulated that the Southern operated more than 42,000 trains between June 28 and September 1, 1963. This would hardly amount to a willful and deliberate defiance, but, in our opinion, a remarkable effort to comply with the Order. The Court's order did not require the carrier to operate with firemen until June 28th. According to the stipulation entered into between the parties, 35 of the 47 incidents occurred between June 28th and June 30th, and none have occurred since August 19th. These few instances do not amount to contempt and this court rules that there has been a substantial compliance in good faith.
Also, it is the Court's recollection that at the time of the original hearing on the injunction, counsel for both parties agreed that in order to return to the status quo the carrier would be required to hire from one hundred to one hundred and thirty-five new firemen. Good faith on the part of the railroad is further demonstrated by the fact that they were actually required to hire two hundred and twenty-three new men, far in excess of the number anticipated.
This Court has previously required the Southern Railway to return to the working conditions which existed prior to 1959. The evidence and the record indicate that defendants have complied with this decree. We will not expand our Order to interfere with the operating rules of the railroad. No contempt has been established.
Accordingly, it is this 6th day of November, 1963,
Ordered, that plaintiff's motion for issuance of an order to show cause and for judgment of contempt, be, and the same hereby is, denied.
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