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BROTHERHOOD OF LOCOMOTIVE FIREMEN v. CHICAGO

January 8, 1964

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN et al., Plaintiffs,
v.
CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY et al., Defendants. BROTHERHOOD OF LOCOMOTIVE ENGINEERS, Plaintiff, v. UNION PACIFIC RAILROAD et al., Defendants



The opinion of the court was delivered by: HOLTZOFF

These two actions are brought to impeach and set aside an award of a special arbitration board created under an act of Congress approved August 28, 1963, Public Law 88-108, 77 Stat. 132, in order to avoid a threatened nationwide railroad strike, which was then imminent. The function of the board was to arbitrate and make an award concerning two basic issues that were in controversy between the railroads and their staffs. The plaintiffs in these two actions are four organizations or brotherhoods composed of operating railroad employees. They are dissatisfied with the decision and seek to set it aside. Most of the defendants are railroads, all of which have accepted and acquiesced in the award. The remaining defendants are the chairman of the arbitration board and the Attorney General. The United States has intervened as an additional party defendant. As judicial review in this case must be limited to the administrative record and the Court is restricted to passing only on questions of law, the matter has been presented by cross motions for summary judgment.

The present dispute comprehends practically all the Class I railroads in the United States and their operating employees. It arises out of drastic and radical technological changes that have taken place in the transportation industry. Specifically, it is caused by the revolutionary advance consisting of the abandonment of steam power on railroads and the substitution of diesel engines. Principally, what is involved is the status of firemen on railroad locomotives. As their name indicates, their primary function on steam locomotives was to stoke the furnace and keep the fires burning underneath the boilers. They also performed another duty, namely, watching the road and the signals from the left side of the cab, as the engineer sat on the opposite side and made his observations from the righthand window. With the abandonment of steam power and the introduction of diesel engines, there were no longer any fires to keep burning or any furnaces to stoke. The question arose, 'What is to become of the fireman?' There is no dispute that they were still necessary on passenger trains in order to perform their secondary function and their status in passenger traffic is not involved in the present controversy. The railroads claimed, however, that they were no longer needed on freight trains, because the duty of watching the road from the left side could be performed by other employees. The railroad brotherhoods, on the other hand, took the position that because they rendered this vital service, firemen should be continued on freight trains. This controversy also comprehended engines operated in yard service. Approximately 30,000 employees were involved. Both sides agreed that as a matter of social justice and enlightened fairness to the men, especially those whose career had been lengthy, there should be no immediate large scale discharge of employees; that some degree of security be granted to them; and that the abolition of the jobs should be accomplished by some gradual process of attrition. Manifestly, the railroads felt a sense of moral responsibility to the veteran workers. Nevertheless it is quite evident that they also thought that there should be a reasonable limit to their generosity. The extent of the security and the groups of men to whom it should be extended, were in sharp dispute.

 A second question in controversy was the composition of train crews. The railroads contended that as a result of modern improvements and innovations the size of many train crews could be substantially reduced. In addition, there were many other problems that divided the contending parties, that were of lesser magnitude and importance and are not involved in these actions.

 In order to understand clearly the special legislation creating the arbitration board, it is desirable to recapitulate briefly the salient events that preceded its enactment. The status of firemen on freight trains and yard service had been disputed and discussed from the beginning of the shift from steam to diesel power. The controversy was brought to a head on November 2, 1959, when the carriers issued notices proposing the elimination of firemen in freight and yard service. As has already been stated, there was no desire or intention to do away with them on passenger trains. These notices also proposed the abrogation of regulations fixing the size of train crews. On September 7, 1960, the employees' organizations in turn served a series of notices containing counter-proposals, which, among other things, would have continued and even extended the use of firemen and would have required not less than one conductor and two trainmen in all train crews plus such additional persons as were required to assure maximum safety.

 In an endeavor to adjust the differences between the parties and to settle the controversy, the President of the United States, in November, 1960, created a special commission, known as the Presidential Railroad Commission. This body, after a prolonged investigation and protracted and thorough study, submitted a report on February 26, 1962, containing a series of recommendations. The carrier members of the Commission accepted it although expressing some dissatisfaction. The members representing the employees dissented and rejected most of the proposals.

 There followed a series of unsuccessful negotiations pursuant to the Railway Labor Act, in the hope of arriving at a peaceful and amicable settlement of the dispute. In a further effort to avert the strike, which might have resulted in an economic disaster, the President, on April 3, 1963, appointed an Emergency Board known as Emergency Board No. 154. On May 13, 1963, this board submitted a report making recommendations for an adjustment of the issues. The employees' organizations proved unwilling to accept them. Strenuous negotiations were resumed, in which the Secretary of Labor took an active part. On August 2, he submitted a memorandum, accompanied by a series of documents, enumerating and defining the various issues in controversy and endeavoring to indicate areas in which, in his judgment, there was the largest possibility of agreement. A suggested plan for a voluntary arbitration followed, but proved abortive. A strike was imminent. The country was confronted with a serious emergency. A nation-wide railroad strike would have been a calamity. Congress alone could avert the catastrophe. The national legislature was not found wanting. It expeditiously fashioned and invoked a drastic measure. As was said by Chief Justice Hughes in Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 426, 54 S. Ct. 231, 235, 78 L. Ed. 413, 'While emergency does not create power, emergency may furnish the occasion for the exercise of power'. It promptly passed a Joint Resolution, which was approved by the President on August 28, 1963, Public Law 88-108, 77 Stat. 132. *fn1"

 This enactment expressly prohibited any strike (Section 1). It authorized the creation of an arbitration board to consist of seven members, two to be designated by each of the contending groups and three additional members to be selected by the other four. If the four failed to agree on the three neutral members, the latter were to be appointed by the President, and this is what happened. The President named the three neutral members, one of whom was elected chairman (Section 2).

 The board directed to pass on two issues: the use of firemen on other than steam-powered locomotives; and the size and composition of train crews (Section 3). Thus, Congress, in effect, ordered a compulsory arbitration of these two basic differences. It provided that the arbitration should be conducted pursuant to Sections 7, 8, and 9 of the Railway Labor Act, 45 U.S.Code, §§ 157-159 (Section 4). The board was directed to conclude its labors within ninety days (Section 5). Its award was to be deposited in this Court and was to be binding on the parties (Section 4). It was not to become effective until sixty days after filing (Section 5).

 The board promptly organized and held a continuous series of hearings, at which testimony of numerous witnesses was heard and a large number of exhibits were introduced in evidence. Its award was filed on November 26, 1963. By the terms of the statute it becomes effective on January 25, 1964.

 The award contains detailed provisions. It is accompanied by a comprehensive, and well-reasoned opinion of the neutral members, which also includes findings of fact. The decision distinguishes between the question as to what positions should be eliminated or abolished and the question as to how and when such abolition should take place and to what extent the status of the present incumbents should be protected. The board reached the conclusion that firemen, although no longer performing their basic and original function, do, in fact, render necessary services, namely, watching the road and the signals from the left side of the cab. It further held, however, that firemen were not indispensable for this purpose, because on freight trains, unlike passenger trains, there were three men in the cab instead of two, the third being the head brakeman and that the head brakeman could fulfill this task. It is true that firemen also made necessary mechanical adjustments when needed, but the board determined that this work could be done by the engineer or by maintenance groups at terminals. As to the yard service, the board decided that a second man in the cab was unnecessary, since other employees standing on the ground or walking along the track gave necessary guidance to the engineer. The ultimate conclusion reached, therefore, was that firemen were no longer needed in freight or yard service and that these positions could be eliminated, with the limitation as to yard service that the engine must be equipped with an automatic control. The board further found that there were exceptional situations in which the services of a fireman might be necessary. Accordingly, it ordered that ten per cent of the firemen in freight and yard service be retained, and prescribed a method for ascertaining and determining the employees to be included in that group.

 The board prescribed liberal protection for existing employees. It preserved security of tenure for a great many of the firemen regularly in the employ of the railroads at the time when the award becomes effective even though their services could well be dispensed with. Accordingly, all firemen hired more than two years prior to the effective date of the award and in active service at that time were to retain their rights to employment and seniority until death, retirement, resignation or discharge for cause, with the qualification that those firemen who had a seniority of only two to ten years might be offered other comparable positions for which they were or could become qualified. The offer of another job was to carry with it the payment of any relocation expenses. Firemen hired within two years prior to the effective date of the award were not to be entitled to retain their employment or seniority rights, but if their services were terminated, they were to receive a lump sum separation allowance, amounting to six months' pay for those with two full years of service; three months' pay for those whose length of service was between one and two years, and for those with less than one year's service, five days' pay for each month of service. Part-time and furloughed employees, that is, those whose earnings had not exceeded $ 200 during the two years immediately preceding the effective date of the award, were to be paid if separated from the service, a severance allowance equal to their earnings during the preceding two years. They might, however, elect to remain on the seniority list with rights to such work as might become available to them. Whenever a job became vacant in such manner that it could not be filled without hiring a new employee, it might be abolished, but not otherwise.

 To summarize, even though the board found these positions to be unnecessary, except as to a small fraction of about ten per cent, they were to be abolished only gradually by attrition caused by death, resignation, retirement, or discharge for cause. This process might consume many years, although perhaps it was likely to become accelerated with the passage of time. Thus all firemen in active service for more than two years were guaranteed a permanent continuation of their existing status until death, retirement, resignation or discharge for cause.

 The second issue determined by the board was the size and composition of train crews. The award directed that no change be made in any stipulated number of members of train crews, except pursuant to its provisions or by agreement. It was further provided that where two or more trainmen were required at that time, any party in interest might give notice of a proposed change in the composition of the train crew. If no agreement was then reached, the issue could be referred by either party to a special board of adjustment to be created in the manner prescribed by the award. A series of specific and concrete principles or 'guidelines' to be followed by these special tribunals in arriving at their decisions, were formulated and set forth. In view of the fact that possibly thousands of minor controversial situations might arise from time to time in different parts of the country, each depending in large part on local and possibly temporary conditions, it was obviously impracticable for the board to enunciate any rigid and inflexible formula as to the composition of all train crews throughout the United States or to decide every one of the numerous individual cases. It manifestly was impossible to do so within the time at its disposal since the statute required the board to make a final report within ninety days. The award enunciated, however, a definite practicable method to solve these multitudinous problems as they arose. Trainmen and similar employees, other than those on furlough at the time of the effective date of the award, were to retain their rights to service assignments to the extent of available positions.

 The neutral members of the board were unanimous in their decision. The representatives of the carriers concurred, but nevertheless, filed a memorandum expressing the view that the award was much more liberal to the employees than it should have been. The employees' representatives filed strong dissenting statements. Their position seems to be that the award was not sufficiently liberal to the employees. Specifically, their grievance is that certain categories of employees are excluded from the benefits of permanency of seniority; principally, those in the furloughed group. Moreover, they objected to the privilege accorded to the carriers to offer comparable jobs to employees of less than ten years seniority.

 Since the merits of the decision are obviously not subject to judicial review, the present actions are predicated on two contentions: first, that the award does not conform to the requirements of the ...


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