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October 23, 1964

CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY (LINES EAST), and S. W. Amour, H. C. Birge and Kieran P. O'Gallagher, as Members of Special Board of Adjustment, Defendants

The opinion of the court was delivered by: ROBINSON

This case presents for review another aspect of the controversy given birth more than a generation ago by the introduction of diesel-powered engines in rail transportation. The modern history of that controversy has been detailed in a recent opinion of this Court by Judge Holtzoff. *fn1" Only a few of the more relevant events need be recounted now.

On November 2, 1959, virtually all of the Nation's major railroads served notices *fn2" of proposed rule changes designed to eliminate firemen from freight and yard diesel engines and to reduce the size of crews in road and yard service. On September 7, 1960, five organizations, representing some 200,000 operating railroad employees, served counter-proposals which would have retained the firemen and maintained existing crew sizes. The magnitude of the issues and the consequences of continued disagreement engendered extraordinary governmental efforts to resolve the dispute.

 On November 1, 1960, the President appointed *fn3" a commission which, after thirteen months of study, submitted recommendations which failed to produce agreement. To avoid a threatened nationwide strike, the President, on April 3, 1963, again acted *fn4" by establishing an emergency board *fn5" which was unable to mediate the dispute. After these and other efforts, also strenuous but unsuccessful, a general rail strike became imminent during the summer of 1963.

 To avoid it, Congress adopted a Joint Resolution *fn6" on August 28, 1963, calling for compulsory arbitration of the fireman and crew consist issues. It created for this purpose Arbitration Board 282, composed in part of two carrier and two organization members. Board 282 rendered an award on November 26, 1963, *fn7" which later was upheld in an impeachment action filed in this Court. *fn8" That decision was affirmed by the Court of Appeals, *fn9" and the Supreme Court denied certiorari. *fn10"

 This litigation is unaffected by the provisions of Award 282 pertaining to the dispute over firemen. The issues here originated when earlier this year the defendant carrier proposed reductions in certain yard and train crews. The provisions of the award bearing on the consist of such crews thus became prominent in this case.

 Award 282

 By denying the 1959-60 proposals of the carriers and the organizations on the arbitrated questions 'except to the extent hereinafter provided,' *fn11" the award relegated them exclusively to the remedies provided therein. *fn12" 'The issue of crew consist (other than engine service),' it says, 'shall be remanded to the local properties for negotiation.' *fn13" 'Pending the consummation of local agreements disposing of the issue,' those provisions regulate the use of affected crews. *fn14" It specifies *fn15" that

 'No change shall be made in the scope or application of rules in effect immediately prior to the effective date of this Award, whether established by agreement, interpretation, or practice, which require a stipulated number of trainmen (assistant conductors, ticket collectors, baggagemen, brakemen, or flagmen) in any class of road service, including all miscellaneous and unclassified services, or which require a stipulated number of brakemen or helpers in any class of yard, transfer, or belt line service, including all miscellaneous yard services, except by agreement, or pursuant to the provisions of this Award.'

 The award particularizes the factors, denominated 'guidelines,' which are to govern any arbitration respecting rule changes. *fn16" Written notice of proposed changes must be given and followed by 'conferences between the representatives of the parties in interest with respect to such proposed change or changes.' *fn17" Then, *fn18"

 'If no agreement is reached between the parties as to the application of the guidelines * * *, the dispute limited to the application of such guidelines as related to the issue involved may be referred by either party to a special board of adjustment.'

 Special boards of adjustment are to consist of three members two of whom may be partisans to the dispute. *fn19" In making their awards they are governed by the guidelines 'although none of these factors alone shall be controlling of the board's decisions.' *fn20" Awards must be rendered 'within 60 days after the appointment of the neutral member,' and '(a) decision of the majority of the board shall be binding upon both parties.' *fn21"

 The award also contains substantial safeguards against job termination to those employed on its effective date. *fn22" By its terms it is to continue in force for two years from its effective date unless the parties agree otherwise. *fn23"

 The Litigation

 On March 30, 1964, the defendant carrier mailed to the plaintiff organization two notices of contemplated reduction in crew consist on the carrier's 'Lines East.' One advised of a proposal to change from two to one the number of helpers on 162 assignments in 59 yards located in six states. *fn24" The other informed of its plan to eliminate baggagemen on seven trains operating between Milwaukee and Madison, Wisconsin, on the one hand, and Chicago on the other.

 The organization promptly communicated its objections. Both notices, it said, were premature because its petition for certiorari, seeking review of the affirmance by the Court of Appeals of this Court's judgment upholding Award 282, had not then been acted upon. It contended that the yard crew notice covered too many assignments and too extensive an area of operation to permit appropriate consideration of the applicability of the award guidelines within a 15-day period, *fn25" and that a 'full crew' law in Wisconsin made illegal any agreement to reduce the size of crews in that state. It also urged that the notice as to baggagemen involved employees on passenger trains whose assignments were not a part of the train crew consist.

 The parties commenced negotiations on April 15. After the organization's position on the baggagemen was then restated, the carrier referred the issue to a special board of adjustment for determination, and after four conferences on the crew consist issue during the ensuing two weeks failed to produce agreement, the carrier similarly referred that dispute.

 The organization refused to name a member to the boards and requested instead a resumption of negotiations. The National Mediation Board rejected its protest against arbitration on the ground that the Board had no authority to interpret Award 282, and appointed organization *fn26" and neutral members for two boards of adjustment to decide the yard crew and baggageman disputes, respectively. Since these boards had the same membership, and throughout acted and were treated by the parties as a single unit, they will be collectively referred to as the Special Board.

 The Special Board convened on May 25, held hearings from June 1 to June 29, and rendered awards on July 10 resolving all issues in favor of the carrier.


 By its March 30 notice relative to the consist of yard crews, the carrier formally advised the organization of its proposal to change from two to one the stipulated number of helpers used in all classes of yard, transfer and belt line service, including all miscellaneous yard service, on 162 assignments specified therein. It also proposed that yard crews called for work train service using an engine consist of a foreman and a helper only, and that all planned reductions in yard crews be effectuated with respect to any assignments later established either in lieu of those listed or to perform substantially similar work. The assignments covered by this notice are performed in 59 yards situated in six different states. The other notice of even date proposed the elimination of baggagemen on seven enumerated train runs. Each notice suggested a conference to which the organization agreed without prejudice to its position.

 During the period from April 15 to May 1, representatives of the carrier and the organization held four negotiation conferences throughout which there was sharp disagreement as to the proper scope and procedural course the discussions should follow. The organization, at the outset, took the position that the award left the assignment of baggagemen unaffected on the ground that these employees worked under a special agreement not involved in the crew consist rule. It also sought to eliminate consideration of any of the 57 assignments in Wisconsin in view of the 'full crew' law of that state which precluded any change therein. The carrier expressed its conviction that the changes it proposed were justified by the guidelines of Award 282 and unsuccessfully sought indication by the organization as to the extent it would agree to them.

 The carrier desired to negotiate by the process of applying the guidelines to employee groups classified according to the location of the yard in which they worked or according to the type of yard service they performed. The organization insisted that the parties deal with each of the disputed job changes individually in the light of the award guidelines. Since each had strong views, and neither would accede to the position of the other, no progress was made toward solution of this basic disagreement. During the discussions the organization's representative read extensively from questionnaires it had previously circulated and the carrier, in response to questions, similarly divulged data derived from time and motion studies it had made on the assignments in question. *fn28"

 In consequence of the organization's position on the baggageman dispute taken at the initial conference, the carrier promptly referred that issue to a special board of adjustment for decision. By May 1, the parties had discussed but 15 of the 162 assignments listed in the carrier's yard notice without reaching any agreement whatsoever. Shortly thereafter the ...

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